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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_16-cv-00038/USCOURTS-caed-1_16-cv-00038-0/pdf.json | [
[
"Carlos Francisco Lopez",
"Plaintiff"
],
[
"V. Shultz",
"Defendant"
],
[
"Zanchi",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CARLOS FRANCISCO LOPEZ,
Plaintiff,
vs.
V. SHULTZ, et al.,
Defendants.
1:16-cv-00038-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED ONLY AGAINST:
(1) DEFENDANT SHULTZ FOR FAILURE
TO PROTECT; (2) DEFENDANTS SHULTZ
AND NURSE DOE #6 FOR INADEQUATE
MEDICAL CARE; AND (3) DEFENDANTS
ZANCHI AND SERGEANT DOE #5 FOR
RETALIATION; AND THAT ALL OTHER
CLAIMS AND DEFENDANTS BE
DISMISSED
OBJECTIONS, IF ANY, DUE IN 20 DAYS
Carlos Francisco Lopez (“Plaintiff”) is a former state prisoner proceeding pro se and in
forma pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the
Complaint commencing this action on January 12, 2016. (ECF No. 1.) The Complaint names
as defendants V. Shultz (Library Technical Assistant, CCI), Kim Holland (Warden, CCI), J.
Wood (Correctional Counselor II, CCI), M. Dailo (Correctional Counselor II, CDI), J. Zanchi
(Associate Governmental Program Analyst, CCI), Correctional Officer Rodriguez, Doe #1
(Chief Deputy Warden, CCI), Doe #2 (Associate Warden, CCI), Doe #3 (Captain, CCI), Doe
#4 (Lieutenant, CCI), Doe #5 (Sergeant, CCI), and Doe #6 (Nurse, CCI).
Case 1:16-cv-00038-DAD-GSA Document 13 Filed 12/29/16 Page 1 of 3
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The Court screened Plaintiff’s Complaint pursuant to 28 U.S.C. ' 1915A and found that
it states cognizable claims as follows: (1) against Defendant Shultz for failure to protect
Plaintiff, in violation of the Eighth Amendment; (2) against Defendants Rodriguez and Nurse
Doe #6 for inadequate medical care, in violation of the Eighth Amendment; and (3) against
Defendants Zanchi and Sergeant Doe #5 for retaliation in violation of the First Amendment.
(ECF No. 11.) The court found no other claims. (Id.) Plaintiff also alleged violation of state
law by Defendants.1
On November 14, 2016, Plaintiff was granted leave to either file an Amended
Complaint or notify the Court that he is willing to proceed only on the claims found cognizable
by the Court. (Id.) On November 21, 2016, Plaintiff filed a notice informing the Court that he
is willing to proceed only on the cognizable claims against defendants Shultz, Rodriguez,
Zanchi, and Does #5 and #6. (ECF No. 16.)
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. This action proceed only against (1) Defendant Shultz for failure to protect
Plaintiff, in violation of the Eighth Amendment; (2) Defendants Rodriguez and
Nurse Doe #6 for inadequate medical care, in violation of the Eighth
Amendment; (3) Defendants Zanchi and Sergeant Doe #5 for retaliation in
violation of the First Amendment; and (4) related state law claims;
2. All remaining claims and defendants be dismissed from this action;
3. Plaintiff’s claims for Supervisory Liability, Denial of Access to Courts, Prison
Appeals Process, and Promulgation of Policy, be dismissed from this action
based on Plaintiff’s failure to state a claim; and
4. This case be referred back to the Magistrate Judge for further proceedings,
including initiation of service.
///
1 The court shall exercise supplemental jurisdiction over any related state law claims under 28
U.S.C. § 1367. However, at this stage of the proceedings, the Court makes no determination about the viability of
Plaintiff’s state law claims.
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These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within
twenty (20) days after being served with these Findings and Recommendations, Plaintiff may
file written objections with the Court. The document should be captioned “Objections to
Magistrate Judge=s Findings and Recommendations.” Plaintiff is advised that failure to file
objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.
Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
(9th Cir. 1991)).
IT IS SO ORDERED.
Dated: December 29, 2016 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
Case 1:16-cv-00038-DAD-GSA Document 13 Filed 12/29/16 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_10-cv-00221/USCOURTS-caed-1_10-cv-00221-18/pdf.json | [
[
"Federated Life Insurance Company",
"Counter Claimant"
],
[
"Keith Warkentin",
"Counter Defendant"
]
] | 1
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1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
KEITH WARKENTIN,
Plaintiff,
v.
FEDERATED LIFE INSURANCE
COMPANY,
Defendant.
Case No. 1:10-cv-00221-SAB
ORDER RE EXCUSABLE NEGLECT
(ECF Nos. 57, 59, 121, 129, 131, 134)
FOURTEEN DAY DEADLINE
AND RELATED COUNTERCLAIMS
On December 2, 2014, the Ninth Circuit remanded this case to this Court to address three
issues. (ECF No. 121.) First, the Court is to address if the Court should exercise its discretion as
to whether Plaintiff Keith Warkentin (“Plaintiff”) established excusable neglect for his late-filed
opposition. Second, if the first issue is answered in the negative, the Court is to address if it
should exercise its discretion as to whether to deem Defendant Federated Life Insurance
Company’s (“Defendant”) proposed undisputed facts as admitted or take other action, such as
allowing the entry of late-submitted factual material while providing Defendant with time to
respond. Third, the Court is to decide whether Defendant is entitled to summary judgment on its
rescission claim.
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Oral argument on the matter was held on April 8, 2015. (ECF No. 138.) Counsel Geni
Krogstad and Wade Hansard appeared for Plaintiff and counsel Daniel Costa appeared for
Defendant. (Id.) Having considered the moving, opposition and reply papers, the declarations
and exhibits attached thereto, arguments presented at the April 8, 2015 hearing, as well as the
Court’s file, the Court issues the following order regarding the first two issues.
I.
BACKGROUND
The operative complaint in this action is the First Amended Complaint filed on January
18, 2012. (ECF No. 39.) Plaintiff alleges that he purchased a disability insurance policy from
Defendant on or around September 28, 2005. (First Am. Compl. ¶ 23.) Plaintiff began
experiencing back pain and numbness in his left leg and foot around September 2007. (First Am.
Compl. ¶ 5.) Plaintiff was placed on a modified work schedule in November 2007. (First Am.
Compl. ¶ 6.) Plaintiff filed a claim with Defendant for disability benefits on or around December
31, 2007. (First Am. Compl. ¶ 8.) Defendant initially approved Plaintiff’s claim on or around
April 30, 2008. (First Am. Compl. ¶ 10.)
On or around February 12, 2009, Defendant ceased payments on Plaintiff’s claim and
notified Plaintiff that the claim was denied. (First Am. Compl. ¶ 28.) Plaintiff raises six causes
of action against Defendant: 1) for breach of the insurance agreement; 2) for breach of the
implied covenant of good faith and fair dealing; 3) for unfair business practices under California
Business & Professions Code § 17200; 4) for unfair business practices under California Business
& Professions Code § 17500; 5) for negligent misrepresentation; and 6) for fraud.
On February 14, 2012, Defendant filed a motion for summary judgment. (ECF No. 45.)
The hearing on the motion for summary judgment was set for March 23, 2012. Under Local
Rule 230(c), Plaintiff’s opposition to the motion was due on March 9, 2012. Plaintiff did not file
a timely opposition, which Defendant noted in its March 16, 2012 reply. (ECF No. 56.) On
March 22, 2012, Plaintiff filed an opposition, which stated that he was misinformed by a legal
research website, “www.jurisearch.com” regarding the due date for his opposition. (ECF Nos.
57-59.)
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The hearing on Defendant’s motion for summary judgment took place on March 23,
2012. On March 28, 2012, the Court issued its written order granting summary judgment in
favor of Defendant on all claims. (ECF No. 62.)
II.
LEGAL STANDARD
The Ninth Circuit construed Plaintiff’s late filed opposition as a motion to extend the
time for filing an opposition pursuant to Federal Rule of Civil Procedure 6(b). By this order, the
Court shall address the first two issues on remand, whether Plaintiff demonstrated excusable
neglect for his late filed opposition, and if not, whether the Court should exercise its discretion to
consider Plaintiff’s opposition.
Federal Rule of Civil Procedure 6(b)(1)(B) governs extensions of time after the relevant
deadline has expired and states, in pertinent part:
(b) Extending Time.
(1) In General. When an act may or must be done within a
specified time, the court may, for good cause, extend the time:
...
(B) on motion made after the time has expired if the party failed to
act because of excusable neglect.
“This rule ... ‘[is] to be liberally construed to effectuate the general purpose of seeing that cases
are tried on the merits.’” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258-59 (9th Cir.
2010) (quoting Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983)).
Courts have recognized that the excusable neglect standard in Rule 6(b) extends to
inadvertent delays. Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership
(Pioneer), 507 U.S. 380, 391 (1993). To determine whether a party’s failure to meet a deadline
constitutes “excusable neglect”, the Court considers four factors: 1) the danger of prejudice to
the opposing party; 2) the length of the delay and its potential impact on the proceedings; 3) the
reason for the delay, including whether it was in the reasonable control of the movant; and 4)
whether the movant acted in good faith. Pioneer, 507 U.S. at 395.
“[A] lawyer’s failure to read an applicable rule is one of the least compelling excuses that
can be offered.” Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004). Similarly, “a lawyer’s
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mistake of law in reading a rule of procedure is not a compelling excuse.” Id. at 860. At the
same time, there are no “per se” rules regarding what constitutes excusable neglect and what
does not, and the Court must apply an “elastic concept” that is equitable in nature. Id. at 860
(“...under Pioneer, the correction approach is to avoid any per se rule.”).
III.
DISCUSSION
A. Whether Plaintiff Established Excusable Negligence for his Late-Filed
Opposition
This proceeding was remanded to this Court to determine whether Plaintiff’s failure to
file a time opposition to the motion for summary judgment was the product of excusable neglect.
The Ninth Circuit found that this Court erred by failing to address the “excusable neglect”
factors in evaluating Plaintiff’s request to file an untimely opposition to the pending motion for
summary judgment in March 2012. Accordingly, the Court revisits Plaintiff’s March 22, 2012
request to file a late opposition and continue the summary judgment hearing date. In so doing,
the Court evaluates the excusable neglect factors as they existed at the time of Plaintiff’s request.
Notably, Plaintiff is no longer represented by the same counsel who represented him
when the motion for summary judgment was filed, briefed, and argued. At the time of the
conduct at issue, Plaintiff was represented by David Hollingsworth. Plaintiff is now represented
by Wade M. Hansard and Geni Karen Krogstad from the Law Offices of McCormick Barstow
Sheppard Wayte & Carruth LLP.
1. Danger of Prejudice
There is little evidence of substantial prejudice to Defendant in this instance. Although
Defendant argues that, theoretically, prejudice can result from delay which causes the loss of
evidence or greater opportunity for fraud or collusion, Defendant fails to demonstrate any
tangible harm suffered in this action.
Defendant argues that Plaintiff actually caused a ten month delay, when factoring in the
multiple motions for reconsideration filed by Plaintiff. However, as discussed above, in
determining whether Plaintiff established excusable neglect with respect to the late-filed
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opposition, the Court only considers the facts as they existed when the request to file the late
opposition was made on March 22.
At that time, Defendant had suffered minor prejudice as a result of Plaintiff’s actions.
First, the Court notes that Plaintiff filed his opposition and requested a continuance the day
before the hearing on the motion for summary judgment, which was scheduled to be heard in
March 23, 2012. The Court further notes that the Court’s records indicate that Plaintiff’s
opposition and request for a continuance was filed on 7:38 p.m. Therefore, Defendant was
placed in the rather unpleasant position of having to address Plaintiff’s arguments, raised after
business hours on the day before the hearing, assuming that he received notice of the filing prior
to the hearing.
Defendant argues that Plaintiff did not suffer any prejudice because the Magistrate Judge
considered his opposition. While this Court found that Plaintiff’s opposition had been
considered in granting the motion for summary judgment, the appellate court found that the
record did not clearly indicate whether he suffered prejudice. (Memorandum 3, ECF No. 121.)
The appellate court found that the record is inconsistent and ambiguous regarding whether the
opposition was considered since the judge stated that Plaintiff was not entitled to be heard on the
motion and the order considered the facts undisputed for the purposes of the motion. (Id. at 4.)
Accordingly, this factor weighs in favor of a finding of excusable neglect.
2. The Length of the Delay and Its Potential Impact on the Proceedings
While Defendant argues that the delay in this action stretched to ten months, as discussed
above, the period considered by the Court is the two week delay requested to allow Defendant to
file a reply to the opposition. Plaintiff requested a fourteen day continuance of the motion for
summary judgment hearing, pushing it from March 23, 2012 to April 6, 2012. This could have
caused a minor domino effect with respect to the pretrial conference and trial dates, which at the
time were set for April 13, 2012 and May 29, 2012. However, the Court finds that the length of
this delay is relatively minimal. See Bateman v. United States Postal Service, 231 F.3d 1220,
1225 (9th Cir. 2000) (losing a quick victory on a motion for summary judgment and having to
reschedule the trial date is insufficient to justify relief). Therefore, this factor does not weigh
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substantially against a finding of excusable neglect.
3. The Reason for the Delay
The Court finds the reason for the delay to be the strongest factor weighing against a
finding of excusable neglect. At the time the motion for summary judgment was filed, Plaintiff
was represented by David Hollingsworth. Mr. Hollingsworth indicated his staff researched the
briefing deadlines for the motion for summary judgment using the website www.JuriSearch.com.
Plaintiff provided a copy of the webpage which states that the affidavits in opposition to the
motion for summary judgment may be served before the hearing day. (Rule 56, ECF No. 59-3.)
Defendant filed a reply on March 16, 2012, indicating that Plaintiff had not filed an
opposition. It was at this time that Mr. Hollingsworth realized that Plaintiff had failed to timely
respond to the motion for summary judgment. (Transcript of Proceedings 8:6-12, ECF No. 99.)
Mr. Hollingsworth then contacted counsel for Defendant in an attempt to stipulate to a
continuance of the hearing to allow Plaintiff to file an opposition. The record is devoid of any
indication of when this occurred or what occurred during this time, however, the parties agree
that Defendant refused to stipulate to a continuance. Mr. Hollingsworth filed an opposition to
the motion for summary judgment on March 22, 2012, the day before the hearing, at 7:38 p.m.
Attorneys who practice in the federal courts are expected to become familiar with rule
changes on or shortly after their effective date. Graham v. Pennsylvania R.R., 342 F.2d 914, 916
(D.C. 1964) (affirming lack of excusable neglect where attorney was unaware of rule change);
see also Kyle v. Campbell Soup Co., 28 F.3d 928, 930 (9th Cir. 1994) as amended on denial of
reh'g (Apr. 8, 1994) (even given greater deference to criminal court’s finding of excusable
neglect in criminal cases, mistaken belief as to time of filing appeal does not constitute excusable
neglect). “[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect.” Kyle, 28 F.3d at 931 (quoting Pioneer, 507 U.S. at 392); Briones
v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (ignorance of Rules does not
constitute excusable neglect).
Rule 56 was revised in 2010 and the motion at issue here was filed in February 2012.
Given the amount of time between the revision of the Rule and the date of the motion at issue
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here, it would be reasonable to expect an attorney to be familiar with the Rule change. Further,
Local Rule 230 provides that opposition to a motion must be filed fourteen days prior to the
hearing date. Simply checking the current copy of the Federal Rules of Civil Procedure or the
Local Rules, both of which are readily available on the Court’s website, would have informed
Plaintiff of the filing requirements for opposing the motion for summary judgment. Further, a
pragmatic approach questions why any court would have system in which the parties were not
required to file their pleadings in sufficient time for the Court to receive and review them prior to
the hearing. This simply misses the point of oral argument. The purpose of the pleadings is to
inform the Court of the position of the parties in deciding the issue before it. The Court holds
oral argument to address issues or concerns the Court has after review of the parties’ pleadings.
Filing an opposition after the close of business on the day prior to oral argument does not fulfill
that purpose.
Additionally, Plaintiff was aware as early as six days prior to the hearing that the
opposition deadline had been missed. While Plaintiff did request a stipulated continuance after
discovering that the deadline was missed, Plaintiff did not file a motion for an extension of time
when Defendant would not stipulate to the request. Rather, Plaintiff waited to make his request
to the Court in the opposition filed after 5:00 on the day prior to the hearing. The facts here
weigh heavily against finding excusable neglect.
4. Good Faith
Plaintiff argues that there is no evidence of bad faith on the part of Plaintiff or his
counsel. Defendant counters that Mr. Hollingsworth acted in bad faith in filing the opposition
after 5:00 the night prior to the hearing to obtain a tactical advantage and sets forth eight
examples of counsel’s conduct in support. Plaintiff contends that the examples cited by
Defendant to demonstrate bad faith do not contain an element of willfulness.
In determining whether a party acts in bad faith, courts consider whether the error was
due to negligence and carelessness rather than deviousness or willfulness. Bateman, 231 F.3d at
1225; Laurino v. Syringa General Hospital, 279 F.3d 750, 755 (9th Cir. 2002). “The good faith
consideration goes to the absence of tactical or strategic motives, not to the degree of
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negligence.” Pincay, 389 F.3d at 861 (concurring opinion).
Defendant points to counsel not familiarizing himself with the filing deadlines and not
advising his client until the night prior to the hearing that a motion for summary judgment had
been filed as evidence of bad faith. It is difficult to see how these incidents would be willful
conduct intended to give Plaintiff a tactical advantage as Defendant contends. Additionally,
Defendant requests that the Court consider counsel’s conduct after the motion for summary
judgment was decided. Even assuming that there was some indication that action after the
motion for summary judgment was taken in bad faith, the Court could not find evidence of bad
faith in filing the opposition on the eve of the motion hearing due to these later incidents.
Defendant also requests the Court find bad faith because Mr. Hollingsworth knew for six
days that the opposition was late and he did not file anything until the night prior to the hearing.
The Court is particularly disturbed by Mr. Hollingsworth lack of professional courtesy by filing
his request in the eleventh hour, approximately thirteen hours before the hearing on the motion
for summary judgment. Mr. Hollingsworth was on-notice of his failure to file a timely
opposition as early as March 16, 2012, when Defendant filed its reply which expressly pointed
out Plaintiff’s failure to file a timely opposition.
While Plaintiff was on notice that he did not file a timely opposition, he did not file a
motion for an extension of time to file his opposition and to continue the hearing on the motion
to allow Defendant to file a reply. Rather, after being informed that Defendant would not
stipulate to an extension of time, Plaintiff waited until after close of business the night before the
hearing to file his opposition.
Plaintiff argues that this demonstrates that counsel did not act in bad faith. In his
opposition, Plaintiff requested a continuance of the hearing on the motion to allow Defendants to
file a reply, with no discussion of excusable neglect. The motion was supported solely by a two
page declaration of counsel and a copy of the Rule as printed on the legal website relied upon.
(ECF No. 59-3.) However, failing to request a continuance and filing the opposition on the eve
of the hearing created a real possibility that Defendant would appear at the hearing without the
opportunity to review the opposition. Similarly, it is apparent from the record that the Court was
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unaware that an opposition had been filed. There is at least an inference that the delay in filing
the opposition was for the purpose of gaining a strategic advantage during the hearing as
Defendant was unprepared to address any issues raised in Plaintiff’s opposition.
Accordingly, this factor weighs against finding excusable neglect.
5. Plaintiff has Not Demonstrated Excusable Neglect for the Late Filed Opposition
Based upon the analysis of the four factors, the Court finds that Plaintiff has not
demonstrated excusable neglect. While the delay and prejudice to Defendant are minimal, the
reason for the delay weighs heavily against excusable neglect; and the Court does find that filing
the opposition to the motion on the eve of the hearing creates at least the inference of bad faith.
Plaintiff’s motion for a continuance could properly be denied.
B. Opposition to Motion for Summary Judgment
Plaintiff requests to be allowed to file a new opposition to the motion for summary
judgment or for the Court to use its discretion to consider the opposition filed on March 22,
2012. To the extent that Plaintiff argues that his counsel did not adequately oppose the motion
for summary judgment and he should be granted the opportunity to file a new opposition, clients
must be held accountable for the acts and omissions of their attorneys.” Pioneer Inv. Services
Co., 507 U.S. at 396. In Pioneer, the Supreme Court rejected the argument “that it would be
inappropriate to penalize respondents for the omissions of their attorney.” Id.
Here, Plaintiff filed an opposition to the motion for summary judgment and if timely all
that remained was for Defendant to file a reply. Plaintiff provides no authority to allow him to
file a new opposition based upon facts that were available to him at the time his current
opposition was filed. The Court does not find good cause to allow Plaintiff the opportunity to
file a new opposition.
In order to avoid any prejudice to Plaintiff, this Court will exercise its discretion to
consider the opposition filed March 22, 2012.
1
However, the Court will not allow Plaintiff to file
a new opposition to present additional facts and argument that were available at the time the
1 At the April 8, 2015 hearing, Defendant agreed that, based upon the remand order from the Ninth Circuit, the
Court should consider the opposition in deciding the motion for summary judgment.
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original opposition was filed. See Harrison v. Hedgpeth, No. C 12-0963 YGR (PR), 2014 WL
46701, at *4 (N.D. Cal. Jan. 6, 2014) (denying request to file new opposition – no good cause for
relitigating fully-briefed motions for summary judgment).
At the time that the motion for summary judgment was denied, Defendant had not filed a
reply to Plaintiff’s opposition. After remand from the Ninth Circuit, the parties were ordered to
brief whether Defendant is entitled to summary judgment on its rescission claim. Defendant has
filed a brief and Plaintiff filed a reply. At the April 8, 2015 hearing, the parties indicated that the
record is complete and agreed that the record to be considered in deciding the motion to dismiss
is the record that existed on the date that Judge Beck ruled on the motion for summary
judgment.
2
In the parties briefing filed after remand, they both argue facts that were placed in the
record after the motion for summary judgment was decided by Judge Beck. For that reason, the
briefing on issue three shall be disregarded as they address evidence that did not exist on the date
that the motion was submitted. Since the Court is considering the late filed opposition filed by
Plaintiff on March 22, 2012, Defendant shall be provided the opportunity to file a reply to the
opposition. Defendant is advised that as discussed herein the reply must be complete in and of
itself and no documents filed after March 22, 2012 will be considered in deciding the motion for
summary judgment. Once Defendant files a reply, the matter will be considered submitted.
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
2 Additionally, as discussed above, Plaintiff has not demonstrated good cause to entitle him to file a new opposition
or supplement his opposition to the motion for summary judgment.
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IV.
CONCLUSION AND ORDER
Plaintiff has not demonstrated excusable neglect for his late filed opposition. However,
the Court shall exercise its discretion to consider the late filed opposition.
Accordingly, IT IS HEREBY ORDERED that:
1. Within fourteen days from the date of service of this order, Defendant shall file a
reply in compliance with this order; and
2. The matter will be deemed submitted once the reply is filed.
IT IS SO ORDERED.
Dated: April 15, 2015
UNITED STATES MAGISTRATE JUDGE
Case 1:10-cv-00221-SAB Document 141 Filed 04/15/15 Page 11 of 11 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-18-04919/USCOURTS-ca4-18-04919-0/pdf.json | [
[
"Eric Christopher Hall",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4919
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC CHRISTOPHER HALL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Terrence W. Boyle, Chief District Judge. (7:17-cr-00003-BO-1)
Submitted: January 31, 2020 Decided: February 13, 2020
Before GREGORY, Chief Judge, and QUATTLEBAUM and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard Croutharmel, RICHARD CROUTHARMEL, ATTORNEY AT LAW, Raleigh,
North Carolina, for Appellant. Brian A. Benczkowski, Assistant Attorney General,
Matthew S. Miner, Deputy Assistant Attorney General, Thomas E. Booth, Criminal
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert J.
Higdon, Jr., United States Attorney, Jennifer May-Parker, 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: 18-4919 Doc: 42 Filed: 02/13/2020 Pg: 1 of 5
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PER CURIAM:
Eric Christopher Hall was convicted of possessing with intent to distribute cocaine,1
in violation of 21 U.S.C. §§ 841(a), (b)(1)(C) (2018), possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), (c)(1)(A)(i) (2018),
and possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2018).
Hall received a 240-month sentence. On appeal, he challenges the denial of his Fed. R.
Crim. P. 28 motion for a judgment of acquittal on his § 922(g)(1) conviction and argues
that the court failed to adequately rule on his objection to the drug weight attributed to him
at sentencing, in violation of Fed. R. Crim. P. 32(i)(3)(B). We affirm.
Hall first argues that the Government failed to present sufficient evidence that he
constructively possessed the firearms found in the trunk of a vehicle immobilized near his
residence. We review de novo a district court’s denial of a motion for judgment of
acquittal. United States v. Young, 916 F.3d 368, 384 (4th Cir.), cert. denied, 140 S. Ct. 113
(2019). We will sustain the jury’s verdict if, viewing the evidence in the light most
favorable to the Government, substantial evidence supports the verdict. United States v.
Burfoot, 899 F.3d 326, 334 (4th Cir. 2018). “Substantial evidence is evidence that a
reasonable finder of fact could accept as adequate and sufficient to support a conclusion of
a defendant’s guilt beyond a reasonable doubt.” United States v. Edlind, 887 F.3d 166, 172
1 Hall’s criminal judgment erroneously describes this conviction as possession with
intent to distribute “a Quantity of Cocaine Base (Crack) and Cocaine.” Hall has not
asserted the error, and the error does not affect our disposition of the issues asserted on
appeal. The district court may correct a clerical error in a criminal judgment at any time
under Fed. R. Crim. P. 36.
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(4th Cir.) (internal quotation marks omitted), cert. denied, 139 S. Ct. 203 (2018). In
conducting this inquiry, “we are not entitled to assess witness credibility, and we assume
that the jury resolved any conflicting evidence in the prosecution’s favor.” United States
v. Savage, 885 F.3d 212, 219 (4th Cir.) (internal quotation marks omitted), cert. denied,
139 S. Ct. 238 (2018).
To establish a violation of 18 U.S.C. § 922(g)(1), the Government was required to
prove, beyond a reasonable doubt, that Hall (1) “previously had been convicted of a crime
punishable by a term of imprisonment exceeding one year;” (2) “knowingly possessed,
transported, shipped, or received[] the firearm; and (3) the possession was in or affecting
commerce, because the firearm had travelled in interstate or foreign commerce at some
point during its existence.”2
United States v. Moye, 454 F.3d 390, 395 (4th Cir. 2006) (en
banc) (internal quotation marks omitted). Proof of actual or exclusive possession is not
necessary; constructive possession is sufficient. United States v. Lawing, 703 F.3d 229,
240 (4th Cir. 2012). Where, as here, the Government sought to establish constructive
possession of the firearms, the Government must show that the defendant “intentionally
exercised dominion and control over the firearm, or had the power and the intention to
exercise dominion and control over the firearm.” United States v. Al Sabahi, 719 F.3d 305,
2 On appeal, Hall does not argue that the Government was required to prove that “he
knew he belonged to the relevant category of persons barred from possessing a firearm.”
Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Additionally, Hall concedes that he
was previously convicted of a felony and that the weapons recovered from the vehicle’s
trunk had travelled in interstate commerce.
USCA4 Appeal: 18-4919 Doc: 42 Filed: 02/13/2020 Pg: 3 of 5
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311 (4th Cir. 2013). The Government can achieve this through direct or circumstantial
evidence. Id.
“A person may have constructive possession of contraband if he has ownership,
dominion, or control over the contraband or the premises or vehicle in which the
contraband was concealed.” United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010);
see also United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc) (explaining
that constructive possession “may be sole or joint” (internal quotation marks omitted)).
Here, the Government adduced sufficient circumstantial evidence from which a jury could
conclude that Hall constructively possessed the firearms found in the trunk of the vehicle.
The butt stock of a firearm found in the trunk, and the saw used to sever the butt stock,
were recovered from Hall’s residence; this evidence supported the inference that Hall
severed the butt stock from the firearm and, in doing so, previously exercised control over
the firearm. Moreover, the weapon was accessible to Hall, as the trunk of the vehicle was
not secured in a manner that would have prevented Hall from gaining entry to the trunk.
We therefore conclude substantial evidence supported Hall’s constructive possession of
the firearms in the vehicle’s trunk.
Hall next asserts that the district court failed to comply with Rule 32(i)(3)(B) at
sentencing because it did not rule on the credibility of the evidence he presented while
objecting to the 198 ounces of cocaine the probation officer attributed to him. Because
Hall did not object to the district court’s alleged failure to rule on his objection, we review
for plain error. United States v. Cook, 550 F.3d 1292, 1297-98 (10th Cir. 2008) (applying
plain error review where defendant fails to make Rule 32(i)(3)(B) objection in district
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court); see also United States v. Bolden, 325 F.3d 471, 497 (4th Cir. 2003) (noting that
sentencing courts “may simply adopt the findings contained in a PSR, provided that it
makes clear which disputed issues were resolved by its adoption.” (internal quotation
marks omitted)). Our review of the record reveals that the district court did not plainly err
in denying Hall’s objection because the findings contained in the presentence report were
supported by a preponderance of the evidence.
We affirm the district court’s judgment. We dispense with oral argument because
the facts and legal contentions are adequately presented in the material before this court
and argument will not aid the decisional process.
AFFIRMED
USCA4 Appeal: 18-4919 Doc: 42 Filed: 02/13/2020 Pg: 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_18-cv-01506/USCOURTS-cand-4_18-cv-01506-2/pdf.json | [
[
"David Henderson",
"Plaintiff"
],
[
"Metlife Resources, Inc.",
"Defendant"
],
[
"Metlife Securities, Inc.",
"Defendant"
],
[
"Metlife, Inc.",
"Defendant"
],
[
"Metropolitan Life Insurance Company",
"Defendant"
],
[
"Tillman Pugh",
"Plaintiff"
],
[
"Roy Reese",
"Plaintiff"
],
[
"Margaret Sulkowski",
"Plaintiff"
]
] | 1
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United States District Court
Northern District of Californi
a
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
TILLMAN PUGH, ET AL.,
Plaintiffs,
vs.
METROPOLITAN LIFE INSURANCE
COMPANY, ET AL.,
Defendants.
CASE NO. 18-cv-01506-YGR
ORDER DENYING MOTION TO REMAND
Re: Dkt. No. 32
Plaintiffs Tillman Pugh, Margaret Sulkowski, and David Henderson bring this putative
class-action lawsuit against defendants Metropolitan Life Insurance Company and Metlife
Resources, Inc., a unit of Metropolitan Life Insurance Company1
(collectively, “MLIC”) for
failure to reimburse expenses and/or prohibited case bond (Count I); prohibited wage chargebacks
(Count II); unlawful failure to provide itemized wage statements (Count III); unlawful failure to
pay wages on termination (Count IV); unlawful underpayment of wages (Count V); and unlawful
untimely payment of wages (Count VI) in violation of the California Labor Code2 and the Private
Attorneys General Act (“PAGA”) (Count VII), as well as unfair business practices (Count VIII) in
violation of the California Unfair Competition Law (“UCL”).3
(Dkt. No. 1-1 (“Compl.”) ¶¶ 1, 60-
125.) Specifically, plaintiffs allege that MLIC improperly treats plaintiffs and putative class
members, who have all worked for defendants as financial service representatives (“FSRs”), as
“statutory employees” or independent contractors and therefore “elect[ed]” not to pay proper
1
Previous plaintiff Roy Reese and defendants MetLife Securities, Inc. and MetLife, Inc.
have been terminated from the case pursuant to stipulation. (See Dkt. No. 41.)
2
Plaintiffs allege violations of California Labor Code §§ 200-204, inclusive, 216-218.6,
221, 223, 226, 226.7, 400-410, 510, 1174, 1194, 1194.2, 1197, and 2802.
3
Cal. Bus. & Prof. Code §§ 17200, et seq.
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wages and/or “penalty” wages to FSRs, by, among other things, making improper deductions from
their wages and by failing to reimburse them for expenses they incurred on MLIC’s behalf. (Id. ¶¶
5-6.) Defendants removed the case to this Court on March 3, 2018. (Dkt. No. 1 (“Removal”).)
Now before the Court is plaintiffs’ motion to remand.4 (Dkt. No. 32 (“Remand”).) Having
carefully considered the pleadings and the papers submitted, and for the reasons set forth more
fully below, the Court hereby DENIES plaintiffs’ motion to remand.5
I. BACKGROUND
On January 30, 2018, plaintiffs filed this putative class-action lawsuit against MLIC in the
Superior Court of the State of California, Alameda County, captioned Pugh, et al v. MetLife, Inc.,
et al, Case No. RG18891665 (the “State Court Action”). (See Compl.) Plaintiff’s Class Action
Complaint (“CAC”) asserts class claims against MCIL as set forth above.
The CAC defines the putative class as follows:
All persons who are, or have been, employed by the Defendants MetLife, Inc.,
Metropolitan Life Insurance Company, and/or MetLife Securities, Inc. in the State
of California to sell and/or assist in selling and/or to market and/or assist in
marketing securities and other financial products on their behalf to the public
4
The Court has reviewed the papers submitted by the parties in connection with plaintiffs’
motion to remand. The Court has determined that the motion is appropriate for decision without
oral argument, as permitted by Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78.
See also Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729
(9th Cir. 1991). Accordingly, the Court VACATES the hearing scheduled for February 12, 2019.
5
In connection with their motion to remand, plaintiffs request that the Court take judicial
notice of seven documents. (Dkt. No. 32-1.) Specifically, plaintiffs request that the Court take
notice of four documents filed on the docket in this case, including defendants’ notice of removal,
two declarations filed in support thereof, plaintiffs’ class action complaint, and defendants’ answer
thereto, both filed in state court, as well as two documents filed with the court in the Central
District of California in Johnson, et al, v. MetLife, Inc., et al, Case No. SACV 13-128-JLS
(RNBx) (C.D. Cal.). (Id. at 1.) As a preliminary matter, the Court need not take judicial notice of
documents on filed on the docket in the instant action and so DENIES IN PART plaintiffs’ request as
to those documents, namely Exhibits 1, 2, 3, 4, and 7 to plaintiffs’ request for judicial notice. For
the same reason, the Court DENIES plaintiffs’ request for judicial notice filed in support of their
reply memorandum. (Dkt. No. 40-2.) The documents filed in Johnson have been filed with the
United States District Court for the Central District of California and are maintained on the court’s
website. Accordingly, the Court GRANTS IN PART plaintiffs’ request as it applies to these
documents, namely Exhibits 5 and 6 to plaintiffs’ request for judicial notice. See Lee v. City of
L.A., 250 F.3d 668, 688-89 (9th Cir. 2001) (noting “a court may take judicial notice of matters of
public record” and documents whose “authenticity . . . is not contested” and upon which a
plaintiff’s complaint relies) (internal quotation marks omitted) (alterations in original).
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within the applicable statutory periods.
(Compl. ¶ 57.) The CAC further defines the statutory period as the “time commencing from four
years before the date this action was filed[, or January 30, 2014,] through the date of final
judgment herein[.]” (Id. ¶ 3.) The CAC does not allege the amount of monetary damages sought
by the class, consistent with California practice. (See Compl.)
Defendants filed their notice of removal on March 8, 3018, asserting jurisdiction pursuant
to 28 U.S.C. Section 1441 based on original jurisdiction as provided by the Class Action Fairness
Act of 2005 (“CAFA”), 28 U.S.C. §1332(d). (Removal ¶ 11.) In so filing, defendants alleged that
the amount in controversy was “over $9,000,85.025.” (Id. ¶ 37.)
The Court held a case management conference in this action on May 7, 2018 and
subsequently issued a case management and pretrial order. (See Dkt. Nos. 27, 28.) On January 7,
2019, plaintiffs filed the instant motion for remand citing an amount in controversy below
$5,000,000 as the basis thereof. (Remand at 2-4.) In support of their motion, plaintiffs argue that
that defendants’ calculation of just over $9 million relies on a number of invalid assumptions and
is, therefore, inaccurate. (Id. at 3.)
Plaintiffs point to an action in the Central District of California dealing with allegations
substantially similar to those at issue here in which the court granted final approval of the class
action settlement on March 19, 2015.6 (See Dkt. No. 32-2, Ex. 5 (“Johnson Approval”).) The
settlement agreement approved by the court in Johnson defined the class as all individuals
employed by MetLife as FSRs in California at any time from January 25, 2009 through March 31,
2014. (Dkt. No. 32-2, Ex. 6 (“Johnson Agreement”) ¶¶ 1.1, 1.5, 1.32.) The agreement also
released all claims under California law by those members who did not opt-out “that (1) are or
6
In Johnson, et al, v. MetLife, Inc., et al, Case No. SACV 13-128-JLS (RNBx) (C.D. Cal.
2015) (“Johnson”), plaintiffs asserted claims for: (1) violation of the Fair Labor Standards Act, 29
U.S.C. § 201, et seq.; (2) failure to pay overtime wages under Cal. Labor Code §§ 510, 1194,
1998; (3) failure to reimburse expenses in violation of Cal. Labor Code §§ 406, 407, 2802(a)(c);
(4) prohibited wage chargebacks in violation of Cal. Labor Code §§ 200, 202, 204; (5) failure to
provide meal and rest periods in violation of Cal. Labor Code §§ 226.7, 512; (6) failure to provide
itemized wage statements in violation of Cal. Labor Code §§ 226, 1174; (7) failure to pay wages
on termination in violation of Cal Labor Code § 203; and (8) unfair business practices in violation
of Cal. Bus. Prof. Code §§ 17200 et seq. (Johnson Approval at 2.)
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could have been asserted in [the Johnson] litigation; (2) involve failure to pay FSRs overtime
compensation or provide them with paid meal and rest breaks; (3) stem from the alleged
misclassification of FSRs as exempt employees; (4) involve failure to reimburse or unlawful
imposition or deduction of expenses or costs by MetLife; or (5) ‘aris[e] from’ the aforementioned
claims.” (Johnson Approval at 5.) The Johnson agreement released all such claims “that arose or
accrued at any time up until the date of the entry of the Final Approval Order,” which was March
19, 2015. (Johnson Agreement ¶ 1.29; Johnson Approval.) Therefore, plaintiffs here aver that the
class period in the instant action is limited to 15 months, rather than the 29 months used by
defendants in their $9 million calculation, “which, standing alone, would reduce the potential
amount in controversy to well below the jurisdictional amount[.]”7 (Remand at 3 (emphasis in
original).)
Plaintiffs assert that the amount in controversy is further reduced because “(2) the number
of FSRs and Retiree Brokers is only 390, not 437 [as assumed by defendants]; (3) [defendants’]
assumption that 100% of class members would assert claims and that all of these claims would be
maximized in the same amount of each class member is highly speculative and wholly unrealistic;
and (4) [defendants’] attempt to add attorneys’ fees based on a benchmark allowance of 25%
ignores the fact that such fees are typically paid out of, not in addition to, the common fund[.]”
(Id. (emphasis in original).) Plaintiffs estimate that the amount in controversy “could be as little
as $3,323,632.84.” (Id. at 3-4.)
II. LEGAL STANDARD
“Federal courts are of limited jurisdiction. They possess only that power authorized by
Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
The courts are presumed to lack jurisdiction unless the contrary appears affirmatively from the
record. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). Accordingly, there is a
7
The Court notes that plaintiff’s counsel represents that they learned of the Johnson
settlement for the first time on November 27, 2018 when they came across the case while doing
research. (See Dkt. No. 33 ¶ 4.) However, defendants contend that plaintiff Tillman Pugh
received more than $700 in settlement monies from the Johnson settlement. (Dkt. No. 34 at 5-6 n.
2.) Plaintiffs do not respond to this assertion. (See Dkt. No. 40.)
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“strong presumption against removal jurisdiction” when evaluating a motion to remand. Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The burden of establishing federal jurisdiction is
upon the party seeking removal.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir.
1988). CAFA does not shift the burden to establish subject matter jurisdiction of a removed
putative class action. Thus, that burden remains with the party seeking removal. Abrego Abrego
v. Dow Chemical Co., 443 F.3d 676 (9th Cir. 2006).
III. ANALYSIS
Under CAFA, federal district courts have jurisdiction over class actions where the amount
in controversy exceeds $5 million, there are more than 100 putative class members, and “any
member of a class of plaintiffs is a citizen of a [s]tate different from any defendant.” 28 U.S.C. §
1332(d)(2)(A). Plaintiffs aver that the amount in controversy is not, as defendants represent in
their notice of removal, over $9,000,85.025, but “falls well below the jurisdictional threshold of
$5,000,000, and, indeed, could be as little as $3,323,632.84.” (Remand at 3-4.)
As in the present case, “[w]here the complaint does not specify the amount of damages
sought, the removing defendant must prove by a preponderance of the evidence that the amount in
controversy requirement has been met.” Abrego Abrego, 443 F.3d at 683 (internal citations
omitted); see also Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)
(“Under this burden, the defendant must provide evidence that it is ‘more likely than not’ that the
amount in controversy” satisfies the federal diversity jurisdictional amount requirement.).
Defendants aver that the Johnson settlement does not, and cannot, affect the amount in
controversy because “defenses, including those involving purportedly settled and released claims,
are not to be considered in assessing the amount in controversy for removal purposes.” (Dkt. No.
34 (“Opp.”) at 2.) In support thereof, defendants contend that the releases resulting from the
Johnson settlement constitute an affirmative defense, which falls well outside the scope of a
court’s review when determining amount in controversy. Defendants rely on the Supreme Court
decision in St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283 (1938) and the Ninth
Circuit’s decision in Geographic Expeditions, Inc. v. The Estate of Jason Lhotka, 599 F.3d 1102,
1108 (9th Cir. 2010).
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In St. Paul Mercury, the Court held that after a case is properly filed in federal district
court, “a subsequent reduction of the amount claimed cannot oust the district court’s jurisdiction.”
St. Paul Mercury, 303 U.S. at 295. In so holding, the Court noted as follows:
The rule governing dismissal for want of jurisdiction in cases brought in the federal
court is that, unless the law gives a different rule, the sum claimed by the plaintiff
controls if the claim is apparently made in good faith. It must appear to a legal
certainty that the claim is really for less than the jurisdictional amount to
justify dismissal. The inability of plaintiff to recover an amount adequate to give
the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does
the fact that the complaint discloses the existence of a valid defense to the claim.
But if, from the face of the pleadings, it is apparent, to a legal certainty, that the
plaintiff cannot recover the amount claimed or if, from the proofs, the court is
satisfied to a like certainty that the plaintiff never was entitled to recover that
amount, and that his claim was therefore colorable for the purpose of conferring
jurisdiction, the suit will be dismissed. Events occurring subsequent to the
institution of suit which reduce the amount recoverable below the statutory
limit do not oust jurisdiction.
Id. at 288-90 (emphasis supplied).
Relying on the Court’s decision in St. Paul Mercury, the Ninth Circuit in Geographic
Expeditions held that the fact that the defendant in a state court action could point to as a potential
defense a contractual damages limitation that would restrict the plaintiff’s recovery in that action
to less than $75,000 did not preclude federal jurisdiction. Geographic Expeditions, 599 F.3d at
1108. In so holding, the Ninth Circuit noted that the rule established in St. Paul Mercury “makes
sense; just because a defendant might have a valid defense that will reduce recovery to below the
jurisdictional amount does not mean the defendant will ultimately prevail on that defense.” Id.
The Ninth Circuit further noted that “if a district court had to evaluate every possible defense that
could reduce recovery below the jurisdictional amount the district court would essentially have to
decide the merits of the case before it could determine if it had subject matter jurisdiction” and
confirmed that this rule applied even where that this “rule applies even though [the defendant] is
asserting the potential defense, and at the same time seeking a federal forum based on diversity
jurisdiction.” Id.
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Defendants do not point to, and the Court cannot find, binding authority for treating
releases as potential defenses for the purposes of evaluating amounts in controversy in
determining jurisdiction. However, a number of district courts and at least one circuit have so
concluded. See e.g., Pagel v. Dairy Farmers of Am. Inc., No. 2:13-cv-02382-SVW-VBK, 2013
WL 12166177, at * 6 (C.D. Cal. July 9, 2013) (denying motion to remand and holding that
releases that, if valid would reduce the amount in controversy below the jurisdictional amount, “do
not pose a barrier to jurisdiction”); Rosenboro v. Kim, 994 F.2d 13, 19 n. 4 (D.C. Cir. 1993)
(reversing dismissal of diversity action and noting that “the presence of such a release is a defense
to liability, and defenses cannot be considered in determining the amount in controversy”). 8
Here, as in Pagel, the releases resulting from the Johnson settlement constitute an
affirmative defense to MCIL’s liability to at least a portion of plaintiffs’ claims. As noted by
plaintiffs in their motion for remand, “[i]n the case at bar the claims asserted by Plaintiffs are
plainly embraced by the Johnson Settlement Agreement.” (Remand at 7.) However, even if the
resulting releases actually bar some portion of plaintiffs’ claims enumerated in the CAC such that
plaintiffs cannot hope to recover $5 million or more, the existence of those releases “does not
preclude federal jurisdiction.” Geographic Expeditions, 599 F.3d at 1108.
Next, plaintiffs seek to expand beyond “the face of the pleadings” to justify remand. The
8
See Campos v. Sodexo, Inc., No. CV 10-09752 MMM (FFMx), 2011 WL 13217929, at *
12 (C.D. Cal. Apr. 18, 2011) (denying motion to remand and rejecting argument that previous
settlement reduced amount in controversy, holding that “[t]o the extent [defendant] could assert as
an affirmative defense that [plaintiff’s] damages should be reduced by the amount of her workers
compensation settlement, courts do not look to valid defenses when calculating the amount in
controversy”) (quotations and citations omitted); Smith v. Manhattan Club Timeshare Ass’n, Inc.,
No. 12 Civ 6363, 2013 WL 1955882, at * 4 (S.D.N.Y. May 10, 2013) (holding that affirmative
defenses, including release, “may not be used to whittle down the amount in controversy”); see
also Lara v. Trimac Transp. Servis. (W.) Inc., No. CV 10-4280-GHK-JCX, 2010 WL 3119366, at
*3 n. 4 (C.D. Cal. Aug. 6, 2010) (rejecting consideration of an alleged offset from the plaintiff’s
potential damages when determining amount in controversy).
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Court is not persuaded by plaintiffs’ argument that because the Johnson settlement had been
approved by a court prior to the filing of the instant action, it is distinguished from “those cases
relied on by Defendants in which non-adjudicated and contested defenses have been asserted by
parties seeking remand.” (Dkt. No. 40 (“Reply”) at 5.) Plaintiffs argue that this case differs from
the those presented in Geographic Expeditions, Pagel, Campos, and Lara where “the potential
defense had not yet been adjudicated,” because here, “the Johnson settlement has been completely
adjudicated and a final judgment was filed in March 2015, binding all parties.” (Id. at 6.) In so
arguing, plaintiffs attempt to transform the settlement and resulting releases from a defense into
“an uncontested prior event, pre-dating the commencement of the present action[.]” (Id. at 5
(emphasis in original).)
Plaintiffs’ argument ignores the fact that the Central District’s approval of the Johnson
settlement does not, and cannot, impact whether the resulting releases implicate plaintiffs’ claims
in the instant action because, as plaintiffs point out, the Johnson case was completely adjudicated
in March 2015, well before plaintiffs filed the instant action. Therefore, in order to determine how
and to what extent the Johnson settlement would impact the amount in controversy in this action,
the Court would still need to engage in the very sort of “evaluat[ion]” against which the Ninth
Circuit cautioned in Geographic Expeditions and would “essentially have to decide the merits of
the case before it could determine if it had subject matter jurisdiction.” Geographic Expeditions,
599 F.3d at 1108. Defendants themselves content that the classes are potentially different, and
thus, the effect of the settlement not easily determined. (Opp. at 6.)
Moreover, in the Supreme Court’s determination in St. Paul Mercury that “the fact that the
complaint discloses the existence of a valid defense to the claim” that would reduce the value of
that claim to below the jurisdictional limit does not eliminate federal jurisdiction suggests that the
validity of a defense has no bearing on whether its existence should impact the amount in
controversy. See St. Paul Mercury, 303 U.S. at 289-90 (emphasis supplied).
Case 4:18-cv-01506-YGR Document 43 Filed 02/07/19 Page 8 of 9
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United States District Court
Northern District of Californi
a
Thus, because the Johnson settlement and the resulting releases have no impact on the
amount placed in controversy by the claims alleged in plaintiffs’ CAC and without the Johnson
settlement the amount in controversy is at least $7,668,501.58, which exceeds the $5 million
threshold under CAFA,9
the Court DENIES plaintiffs’ motion to remand.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES plaintiffs’ motion to remand.
This Order terminates Docket Number 32.
IT IS SO ORDERED.
Dated: February 7, 2019
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
9
This calculation assumes that each of plaintiffs’ allegations regarding the assumptions
taken by defendants are correct and therefore represents the minimum amount in controversy on
the face of the complaint, excluding any review of the Johnson settlement. (See Remand at 3-4,
8.)
Case 4:18-cv-01506-YGR Document 43 Filed 02/07/19 Page 9 of 9 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alsd-1_10-mc-00026/USCOURTS-alsd-1_10-mc-00026-0/pdf.json | [
[
"William Sandlin McLaurine II",
"Petitioner"
],
[
"Robert A. Wherry Jr.",
"Respondent"
]
] | IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
WILLIAM SANDLIN MCLAURINE, II )
)
v. ) MISC. ACTION 10-0026-WS
)
ROBERT A. WHERRY, JR., etc. )
ORDER
William Sandlin McLaurine II (“McLaurine”) has filed a document styled,
“Petition for a Writ of Certiorari to the district court of the United States.” (Doc. 1). The
purpose of the document is to “reques[t] this court issue a writ certiorari, or a Writ of
Certiorari, to correct this injustice by finding the actions of the United States Tax Court,
Judge Robert A. Wherry Jr. without jurisdiction.” (Id. at 2). That is, the document seeks
to have this Court review the action of the Tax Court. This is not possible.
“The United States Courts of Appeals (other than the United States Court of
Appeals for the Federal Circuit) shall have exclusive jurisdiction to review the decisions
of the Tax Court, except as provided in section 1254 of Title 28 of the United States Code
....” 26 U.S.C. § 2682(a)(1); accord Roberts v. Commissioner, 175 F.3d 889, 892 (11th
Cir. 1999); Gulden v. United States, 287 Fed. Appx. 813, 817 (11th Cir. 2008). Section
1254 addresses review by the Supreme Court.
Pursuant to Section 2682, this Court has no jurisdiction to review the action of the
Tax Court. The petition for writ of certiorari is denied. The Clerk is directed to close
this matter.
DONE and ORDERED this 23rd day of August, 2010.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
Case 1:10-mc-00026-WS Document 3 Filed 08/23/10 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-04886/USCOURTS-cand-3_09-cv-04886-0/pdf.json | [
[
"Shawn Gant",
"Plaintiff"
],
[
"John Muir Health",
"Defendant"
]
] | 1
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26 PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE [FRCP 41(a)(1)(A)(i)
CASE NUMBER: C 09-04886 VRW
ALAN ADELMAN, ESQ. BAR NO: 170860
LAW OFFICES OF ALAN ADELMAN
240 Stockton Street, 9 Floor th
Union Square
San Francisco, California 94108
Telephone: (415) 956-1360
Facsimile: (415) 625-1339
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SHAWN GANT,
Plaintiff,
vs.
JOHN MUIR HEALTH,
Defendant.
____________________________________________
)
)
)
)
)
)
)
)
)
)
)
CASE NUMBER: C 09-04886 VRW
PLAINTIFF’S NOTICE OF
VOLUNTARY DISMISSAL WITH
PREJUDICE
[FRCP 41(a)(1)(A)(i)]
WHEREAS the parties to this action, and each of them, have fully and finally resolved all issues
set forth in this case.
WHEREAS the parties have entered into a confidential written settlement agreement.
WHEREAS Defendant JOHN MUIR HEALTH has not yet filed an Answer or other responsive
pleading.
Plaintiff hereby dismisses this lawsuit with prejudice.
Dated: January 13, 2010 LAW OFFICES OF ALAN ADELMAN
By: /s/ Alan Adelman
Attorney for Plaintiff
SHAWN GANT
Case3:09-cv-04886-VRW Document7 Filed01/13/10 Page1 of 1
U
NITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IT IS SO ORDERED
Judge Vaughn R Walker
Case 3:09-cv-04886-VRW Document 8 Filed 01/14/10 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_07-cv-00573/USCOURTS-almd-2_07-cv-00573-0/pdf.json | [
[
"Michael J. Astrue",
"Defendant"
],
[
"Stanley J. Dobbie",
"Plaintiff"
]
] | IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
STANLEY J. DOBBIE, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:07CV573-SRW
) (WO)
MICHAEL J. ASTRUE, Commissioner )
of Social Security, )
)
Defendant. )
MEMORANDUM OF OPINION
Plaintiff Stanley J. Dobbie brings this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of a decision by the Commissioner of Social Security (“Commissioner”)
denying his application for disability insurance benefits under the Social Security Act. The
parties have consented to entry of final judgment by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c). Upon review of the record and briefs submitted by the parties, the court
concludes that the decision of the Commissioner is due to be reversed.
BACKGROUND
On March 1, 2005, plaintiff filed an application for disability insurance benefits. On
September 20, 2006, after the claim was denied at the initial administrative level, an ALJ
conducted an administrative hearing. The ALJ rendered a decision on November 21, 2006.
The ALJ concluded that plaintiff suffered from the severe impairments of “history of liver
disease and a history of a lumbar laminectomy.” (R. 18). He found that plaintiff’s
impairments, considered in combination, did not meet or equal the severity of any of the
Case 2:07-cv-00573-SRW Document 20 Filed 06/23/08 Page 1 of 6
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impairments in the “listings” and, further, that plaintiff retained the residual functional
capacity to perform his past relevant work as a retail manager. Thus, the ALJ concluded that
the plaintiff was not disabled within the meaning of the Social Security Act during the period
from September 14, 1999, his alleged onset date, until December 31, 2004, his date last
insured. On May 25, 2007, the Appeals Council denied plaintiff’s request for review and,
accordingly, the decision of the ALJ became the final decision of the Commissioner.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
to determine whether substantial evidence supports the ALJ’s factual findings. Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145
(11th Cir. 1991). Substantial evidence consists of such “relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Cornelius, 936 F.2d at 1145.
Factual findings that are supported by substantial evidence must be upheld by the court. The
ALJ’s legal conclusions, however, are reviewed de novo because no presumption of validity
attaches to the ALJ’s determination of the proper legal standards to be applied. Davis, 985
F.2d at 531. If the court finds an error in the ALJ’s application of the law, or if the ALJ fails
to provide the court with sufficient reasoning for determining that the proper legal analysis
has been conducted, the ALJ’s decision must be reversed. Cornelius, 936 F.2d at 1145-46.
DISCUSSION
Case 2:07-cv-00573-SRW Document 20 Filed 06/23/08 Page 2 of 6
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The court does not here determine whether, if the ALJ had used the proper analysis, his findings
would have been supported by substantial evidence. Additionally, in view of its determination that this
matter must be remanded, the court does not address the remaining issues raised by plaintiff. The court
expects that the Commissioner will consider these issues on remand.
2
Plaintiff also received treatment for depression and anxiety between May 2005 and February 2006,
after his date last insured. (Exhibit 12F).
3
The plaintiff challenges the Commissioner’s decision, arguing that the ALJ erred by:
(1) failing to develop the record by ordering a psychological examination; (2) finding the
plaintiff’s anxiety and depression to be non-severe; (3) improperly applying the pain
standard; (4) failing to elicit testimony from the unrepresented claimant regarding his pain
and fatigue; (5) finding the plaintiff capable of light work; and (6) failing to make an explicit
determination of the severity of the plaintiff’s lumbar radiculopathy and post-laminectomy
syndrome. He alleges further that the Appeals Council erred by failing either to reverse the
ALJ’s decision or to remand the case in view of plaintiff’s new evidence regarding his mental
status.
The court concludes that the ALJ’s finding at step two that plaintiff’s depression and
anxiety were not “severe” is not supported by the proper legal analysis and, thus, that this
action must be remanded for further proceedings.1
The record reveals that plaintiff was
diagnosed with depression and anxiety by both his primary care physician in Elberta,
Alabama – Dr. Kurtts – and his primary care physician in Castle Rock, Colorado. Between
them, the two physicians continuously treated plaintiff for these conditions with medications
– Effexor, Klonopin and Wellbutrin – between September 2002 and at least October 2004.2
(Exhibits 7F and 10F).
Case 2:07-cv-00573-SRW Document 20 Filed 06/23/08 Page 3 of 6
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The ALJ’s discussion of plaintiff’s diagnoses and treatment for depression and anxiety
is confined to a single short paragraph:
While depression and anxiety are noted and treated with medication by Dr.
Kurtts, a family practitioner, no specific mental limitations were given, and the
claimant has never sought any specialized mental health treatment or
counseling. Accordingly, the undersigned finds that any mental impairment
has had no more than a minimal impact on the claimant’s ability to work and
is therefore considered non-severe.
(R. 18).
The Eleventh Circuit has summarized the ALJ’s responsibility in evaluating mental
impairments as follows:
[Social Security] regulations require the ALJ to use the “special technique”
dictated by the PRTF [Psychiatric Review Technique Form] for evaluating
mental impairments. 20 C.F.R. § 404.1520a-(c)(3-4). This technique requires
separate evaluations on a four-point scale of how the claimant’s mental
impairment impacts four functional areas: “activities of daily living; social
functioning; concentration, persistence, or pace; and episodes of
decompensation.” 20 C.F.R. § 404.1520a-(e)(2).
* * *
[W]here a claimant has presented a colorable claim of mental impairment, the
social security regulations require the ALJ to complete a PRTF, append it to
the decision, or incorporate its mode of analysis into his findings and
conclusions. Failure to do so requires remand.
Moore v. Barnhart, 405 F.3d 1208 (11th Cir. 2005). In Moore, the Eleventh Circuit reversed
the judgment of the district court affirming the Commissioner’s decision because of the
ALJ’s failure either to complete a PRTF or to incorporate its mode of analysis into his
findings and conclusions, despite the Court’s conclusion that the ALJ’s credibility
determination was adequate and that the ALJ’s finding that Moore retained the residual
Case 2:07-cv-00573-SRW Document 20 Filed 06/23/08 Page 4 of 6
5
functional capacity to perform her past relevant work was supported by substantial evidence.
See id. at 1212, 1213.
In this case, the ALJ did not expressly determine whether the plaintiff suffers from
a medically determinable mental impairment. Instead, he simply observed that “depression
and anxiety are noted and treated with medication,” and concluded that “any mental
impairment has had no more than a minimal impact on the claimant’s ability to work.” (R.
18). However, in his RFC determination, the ALJ found that plaintiff “would be limited
i[n] his ability to work around noise.” (R. 19). The ALJ based his RFC determination on a
Medical Source Statement of the Claimant’s Ability to do Work-Related Activities (Physical)
completed by Dr. Kurtts on July 6, 2006. (R. 19). In that Medical Source statement, Dr.
Kurtts assesses plaintiff’s physical limitations. (Exhibit 12F). With regard to his conclusion
that plaintiff is limited in his ability to work around noise, however, Dr. Kurtts writes, “I
think noise may make him anxious.” (R. 224). Thus, the noise limitation clearly arises not
from plaintiff’s physical condition, but from his mental status. By adopting Dr. Kurtts’
assessment regarding the noise limitation in his RFC determination, the ALJ implicitly found
that plaintiff’s mental status has at least some effect on plaintiff’s ability to work.
In view of the ALJ’s finding regarding the noise limitation and the evidence of record
showing a continuous course of treatment over a period of two years for depression and
anxiety, the court concludes that plaintiff has presented at least a “colorable claim” of a
Case 2:07-cv-00573-SRW Document 20 Filed 06/23/08 Page 5 of 6
3
Since the ALJ made no express finding that plaintiff does not suffer from a medically determinable
mental impairment, the court has no occasion to address whether any such finding would have been
supported by substantial evidence.
4
The Commissioner argues that the ALJ properly concluded that the plaintiff’s mental impairments
are not “severe,” noting the ALJ’s observation of plaintiff’s lack of treatment by a specialist and the minimal
nature of his treatment. (Doc. # 18, pp. 5-6). However, under 20 C.F.R. § 404.1520a(d), the special
technique is the required method for assessing the “severity” of mental impairments. Because he did not use
it, the ALJ erred, regardless of whether he otherwise supported a finding that the plaintiff’s depression and
anxiety did not significantly interfere with his ability to work. See Selassie v. Barnhart, 203 Fed. Appx. 174
(9th Cir. 2006)(“[O]ne of the stated purposes for the ‘special technique’ is to help the Social Security
Administration ‘[o]rganize and present [its] findings in a clear, concise, and consistent manner.’ 20 C.F.R.
404.1520a(a)(3). The specific documentation requirements, therefore, are not mere technicalities that can
be ignored as long as the ALJ reaches the same result that it would have if it had followed these
requirements.”).
6
mental impairment.3 Under these circumstances, the ALJ was required to employ the
detailed method of analysis set forth in 20 C.F.R. 404.1520a. He failed to do so. Thus, under
Moore, remand is required.4
CONCLUSION
For the foregoing reasons, the decision of the Commissioner is due to be reversed, and
this action is due to be remanded for further consideration. A separate judgment will be
entered.
DONE, this 23rd day of June, 2008.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
Case 2:07-cv-00573-SRW Document 20 Filed 06/23/08 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-15-03050/USCOURTS-ca8-15-03050-0/pdf.json | [
[
"Bryan Terrell",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-3050
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Bryan Terrell
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Des Moines
____________
Submitted: April 15, 2016
Filed: May 16, 2016
____________
Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.
____________
MURPHY, Circuit Judge.
Bryan Terrell pled guilty to being a felon in possession of a firearm and
ammunition, 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced him
to 100 months in prison, and Terrell appeals. We vacate his sentence and remand for
resentencing.
Appellate Case: 15-3050 Page: 1 Date Filed: 05/16/2016 Entry ID: 4399038
Terrell pled guilty to one count of felon in possession of a firearm after police
recovered two pistols and ammunition from a car in which he was riding. See 18
U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing the district court found that
Terrell's firearm possession also violated Iowa Code § 724.4(1) which prohibits
"knowingly carr[ying] or transport[ing] in a vehicle a pistol or revolver." The court
therefore applied a four level enhancement for his possession of a firearm "in
connection with another felony offense." See U.S.S.G. § 2K2.1(b)(6)(B). In its
guideline calculation the court arrived at a total offense level of 25, which combined
with Terrell's criminal history category of V, should have yielded an advisory
guideline range of 100–120 months. The district court mistakenly stated that the
1
applicable guideline range was 110–120 months.
After concluding that application of the four level enhancement under
guideline § 2K2.1(b)(6)(B) was particularly harsh under the circumstances of this
case, the district court varied downward from the bottom of the guideline range and
sentenced Terrell to 100 months. Terrell appeals.
Terrell first argues that the district court erred by applying a four level
enhancement for possession of a firearm in connection with another felony offense
because his violation of Iowa Code § 724.4(1) was based on the same conduct
underlying his federal offense. See U.S.S.G. § 2K2.1 cmt. n.14(C). He contendsthat
application of this Iowa enhancement therefore "double punishes the act of
possessing a firearm." As Terrell concedes, however, this argument is foreclosed by
our decision in United States v. Walker, 771 F.3d 449 (8th Cir. 2014). We explained
in Walker that a violation of § 724.4(1) would support the application of such an
enhancement because a defendant does not "automatically commit the [Iowa] felony
when he violate[s] 18 U.S.C. § 922(g) by possessing a firearm as a felon." Id. at
120 months is the statutory maximum sentence under 18 U.S.C. § 924(a)(2). 1
-2-
Appellate Case: 15-3050 Page: 2 Date Filed: 05/16/2016 Entry ID: 4399038
452–53. The district court's application of this enhancement should therefore be
affirmed.
Terrell also argues that the district court committed procedural error by
sentencing him using an incorrect guideline range of 110–120 months. Our review
is for plain error because Terrell did not raise this objection below. United States v.
Stokes, 750 F.3d 767, 771 (8th Cir. 2014). To establish plain error, Terrell must
show that "(1) there was error, (2) the error was plain, and (3) the error affected his
substantial rights." Id. We will remand for resentencing if the error "seriously affects
the fairness, integrity or public reputation of judicial proceedings." United States v.
Weaver, 161 F.3d 528, 530 (8th Cir. 1998) (alteration omitted). Here, the parties
agree that the district court plainly erred and that remand is necessary.
The government concedes that the correct guideline range for Terrell is
100–120 months and that the district court intended to vary downward from the
applicable range. Because the court misstated the guideline range, however, it did not
actually vary downward as intended. We agree with the parties that this was plain
error which affected Terrell'ssubstantial rights since "there is a reasonable probability
that [he] would have received a lighter sentence but for the error." Stokes, 750 F.3d
at 771. Because "the public's confidence in the judicial process would be undermined
. . . when an increased sentence results from an obvious guideline [ ] error," United
States v. Warren, 361 F.3d 1055, 1059 (8th Cir. 2004), we vacate Terrell's sentence
and remand for resentencing.
______________________________
-3-
Appellate Case: 15-3050 Page: 3 Date Filed: 05/16/2016 Entry ID: 4399038 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_17-cv-03676/USCOURTS-cand-3_17-cv-03676-2/pdf.json | [
[
"Steve Johnson",
"Plaintiff"
],
[
"Nationstar Mortgage, LLC",
"Defendant"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STEVE JOHNSON,
Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC,
Defendant.
Case No. 17-cv-03676-WHO
ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
PLAINTIFF’S REQUEST FOR LEAVE
TO AMEND THE COMPLAINT
Re: Dkt. Nos. 58, 66
This case arises from a defaulted home loan and an unsuccessful attempt at a loan
modification after that default. Plaintiff Steve Johnson brings claims against servicer Nationstar
Mortgage, LLC, asserting that Nationstar’s conduct during the parties’ dealings amounted to
breach of contract, violations of California law, and negligence. Before me is Nationstar’s motion
for summary judgment and Johnson’s request for leave to amend his complaint, filed after the
hearing on the summary judgment motion. The undisputed facts show that Johnson agreed to the
clear terms of the trial payment plan and then failed to comply with those terms. The amendment
Johnson proposes would be futile. Accordingly, I will grant Nationstar’s motion for summary
judgment.
BACKGROUND
I. FACTUAL BACKGROUND
In 2007, Johnson purchased the real property located at 170 King Street #1111 in San
Francisco, secured by a promissory note in favor of Bank of America, N.A. in the amount of
$635,250.00. Request for Judicial Notice (“RJN”)1 Ex. 1 (“Deed of Trust”) [Dkt. No. 58-1]. He
1 Nationstar asks that I take judicial notice of thirteen documents. Dkt. No. 58-1. Federal Rule of
Evidence 201(b) authorizes a court to take judicial notice of facts that are generally known within
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fell behind in his mortgage payments in late 2008 after a change in income. Deposition of Steve
Johnson (“Johnson Depo.”), Declaration of Tara Mohseni (“Mohseni Decl.”) [Dkt. No. 58-2]2 Ex.
C, 30:9–24. The loan went into foreclosure in 2010 and on May 25, 2010, a Notice of Trustee’s
Sale was recorded on the property. RJN Exs. 2, 4. Bank of America transferred the loan to
Nationstar in 2013. Id. Ex. 6. Johnson filed for bankruptcy on November 12, 2014, and his
petition was dismissed on September 23, 2016. Id. Ex. 11.
On September 9, 2016, Nationstar sent a letter to Johnson’s bankruptcy attorney indicating
that it had approved Johnson to enter into a trial payment plan (“TPP”) under the Streamline
Home Affordable Modification Program (“HAMP”).3 Declaration of Fay Janati (“Janati Decl.”)
Ex. 3 (“Offer Letter”) [Dkt. No. 58-3]. To accept the offer, Johnson was required to make the first
payment no later than October 31, 2016. Id. at 1. To qualify for a permanent loan modification,
the TPP required Johnson to make three payments of $4,135.88 in October, November, and
December 2016. Id. After making the three trial period payments, Nationstar would offer him a
permanent loan modification. October 31 Phone Call Transcript (“Tr.”), Johnson Depo. Ex. 74at
the trial court’s territorial jurisdiction or that “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); see Lee v. City
of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2011) (noting that courts may take judicial notice
of matters of public record). The complaint and my prior orders are already part of the record in
this case. First Amended Complaint (“FAC”) [Dkt. No. 14]; Order on Motions to Dismiss and
Withdraw [Dkt. No. 37]. Nationstar’s request as to these documents is DENIED AS MOOT.
Documents 1 through 10 are appropriate for judicial notice because they are matters of the public
record. I GRANT the requests as to documents 2, 4, and 6 but DENY AS MOOT the requests for
documents 3, 5, 7, 8, and 9 because I did not rely on them in resolving the present motion. The
request regarding the docket of Johnson’s bankruptcy case In re Johnson is also GRANTED. See
Rosales-Martinez v. Palmer, 753 F.3d 890, 894 (9th Cir. 2014) (“It is well established that we may
take judicial notice of judicial proceedings in other courts.”).
2 All of the exhibits attached to the Mohseni declaration can be found at docket number 58-2.
3 HAMP is a program “through which mortgage lenders received stimulus funds in exchange for
issuing loan modifications to qualified borrowers.” Hernandez v. Wells Fargo & Co., No. 18-cv07354-WHA, 2019 WL 2359198, at *1 (N.D. Cal. June 3, 2019). “[T]he Treasury Department in
2009 launched the HAMP program to incentivize banks to refinance mortgages of distressed
homeowners so they could stay in their homes.” Id. at *2.
4 The audio of the call was exhibit 7 at Johnson’s deposition. In the docket, the call transcript
follows the deposition transcript at Exhibit C of the Mohseni declaration.
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11.
5
The letter further informed Johnson and his attorney that Nationstar would not conduct a
foreclosure sale during the trial period if Johnson timely made the required payments. Offer Letter
at 6. If Johnson failed to make a trial payment in the month in which it was due, he would become
ineligible for a permanent loan modification. Id.
Johnson called Nationstar on October 31, 2016 to discuss the September letter. Tr. 2, 6.
He had received the offer from his attorney over the weekend and was concerned about the
October payment. Id. at 6. The Nationstar representative told him that it was “okay” that he had
not made the payment yet and that Nationstar could process the payment that day. Id. at 7. The
representative also told him that if he did not accept the TPP offer by providing payment, the offer
would be cancelled and foreclosure proceedings would begin. Id. at 13, 16.
Johnson provided the Nationstar representative with his Bank of America routing number
and checking account number over the phone. Id. at 15. The representative confirmed that
Nationstar would process October’s payment of $4,135.88 that day. Id. Johnson authorized
Nationstar to process his payment, and Nationstar provided him with a confirmation number. Id.
at 16–17. In addition, Johnson re-scheduled the payments due in November and December from
the first of the month to November 18 and December 7, respectively. Id. at 19–20. The
representative explained that Nationstar would “automatically draft” all three payments to the
checking account that Johnson had provided, and he gave Johnson confirmation numbers for each
transaction. Id. at 20–21. At the end of the call, Johnson confirmed with the representative that if
“the successful payments [happened] in October, November, December . . . sometime in January,”
he would receive a final modification offer. Id. at 24.
On November 10, 2016, Nationstar sent Johnson a letter telling him that the October 31
transaction was returned because there were insufficient funds in his account. Janati Decl. Ex. 4.
A December 1, 2016 letter informed Johnson that his November 18 transaction was returned
because Johnson had stopped payment on it. Id. Ex. 5; Mohseni Decl. Ex. F, Request for
5
Johnson testified that the audio recording of the phone call played for him during his deposition
accurately reflected his October 31 call with Nationstar. Johnson Depo. 44:12–18. There is no
dispute that the transcript accurately captures the recording, and no objection was made to its
admission into evidence.
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Admission (“RFA”) No. 6.
On November 29, 2016, Clear Recon Corporation recorded a Notice of Trustee’s Sale on
Johnson’s property, setting a December 27, 2016 sale. RJN Ex. 10.
II. PROCEDURAL HISTORY
Johnson filed this action in state court on June 9, 2017, and Nationstar removed it to
federal court on June 27, 2017. Notice of Removal [Dkt. No. 1]; id. Ex. 1 (“Compl.”) [Dkt. No. 1-
1]. Johnson amended his complaint on August 2, 2017. First Amended Complaint (“FAC”) [Dkt.
No. 14]. Both the original and first amended complaint asserted five causes of action against
Nationstar. See id. On February 9, 2018, I granted in part Nationstar’s motion to dismiss, leaving
three claims: breach of contract, violation of section 2923.7 of the California Homeowner’s Bill of
Rights (“HBOR”), and negligence. See Order on Motion to Dismiss (“Order on MTD”) [Dkt. No
37]. Finding good cause, I also granted defense counsel’s motion to withdraw as attorney for
Johnson, who now proceeds pro se. Id. at 2.
Nationstar now moves for summary judgment. Motion for Summary Judgment (“Mot.”)
[Dkt. No. 58]. Although Johnson timely opposed Nationstar’s motion on June 18, two days later
he requested leave to amend his opposition, which I granted. See Dkt. Nos. 60, 61, 62. Johnson
never filed an amended opposition. I heard argument on July 17, 2019, and at that time I gave
Johnson leave to submit relevant portions of the HAMP guidelines as he requested. See Dkt. No.
65. On July 19, he filed a notification of supplemental authorities and request for leave to further
amend his complaint. Notice and Request (“Supp. Br.”) [Dkt. No. 66].
LEGAL STANDARD
Summary judgment on a claim or defense is appropriate “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 order to prevail, a party moving for summary judgment must show
the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party’s claim, or to a defense on which the non-moving party will bear the burden of
persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has
made this showing, the burden then shifts to the party opposing summary judgment to identify
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“specific facts showing there is a genuine issue for trial.” Id. The party opposing summary
judgment must then present affirmative evidence from which a jury could return a verdict in that
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
On summary judgment, the Court draws all reasonable factual inferences in favor of the
non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony
does not raise genuine issues of fact and is insufficient to defeat summary judgment. See
Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
DISCUSSION
I. MOTION FOR SUMMARY JUDGMENT
Nationstar moves for summary judgment on the grounds that the undisputed evidence
shows (i) Johnson defaulted on his mortgage loan; (ii) Johnson breached the TPP by failing to
make the required payments; (iii) Johnson’s default authorized Nationstar to foreclose on his
property; (iv) Nationstar appointed Johnson a single point of contact in accordance with § 2923.7;
and (v) Nationstar did not breach any duty of care owed to Johnson in processing his TPP or
otherwise servicing his loan.
A. Breach of Contract
The elements of a cause of action for breach of contract are (i) the existence of the
contract, (ii) plaintiff’s performance or excuse for nonperformance, (iii) defendant’s breach, and
(iv) the resulting damages to the plaintiff. Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821
(2011). According to the first amended complaint, Johnson’s theory is that Nationstar breached
the contract by attempting to debit his account twice in November 2016 and by proceeding with
non-judicial foreclosure.6 FAC ¶¶ 33, 38. Nationstar argues that Johnson’s breach of contract
6
In his opposition, Johnson contends that the “Oral TPP” offered to him on the October 31 phone
call “did not [constitute] a complete and documented TPP, as required by law.” Oppo. 7. While
Johnson cites no authority in support of his contention, even assuming there is such a requirement,
the facts show Nationstar provided him with a complete and documented TPP in the September
2016 letter. See Offer Letter; Reply [Dkt. No. 64] 4.
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claim fails because he, not Nationstar, breached the terms of the TPP. Mot. 8–9.
Johnson has not presented sufficient evidence to create a triable issue on his breach of
contract claim; instead, the undisputed evidence shows that he failed to perform on the terms of
the TPP. See Oasis W. Realty, 51 Cal. 4th at 821 (noting that a plaintiff’s performance or excuse
for nonperformance is an essential element of a contract claim). Nationstar unambiguously set
forth the terms of the TPP in the offer letter and during the phone call. The TPP offer letter stated
that Nationstar had to “receive[]” each trial payment during the month in which it was due, and
accordingly, the first trial payment was due no later than October 31. Offer Letter 1. On the
call—which the transcript accurately reflects, according to Johnson —the representative told him
that Nationstar could process the first payment “right [then],” to which Johnson replied, “Okay.”
Tr. 7. The representative explained that the TPP offer would expire if Johnson did not make a
payment that day and explicitly stated that Nationstar would “automatically draft [the payment] to
the checking account” Johnson provided. Id. at 16, 20.
Despite this correspondence, Johnson maintained during discovery that he believed his
payment would be processed “like a normal check,” rather than as an automatic transfer of funds.
See Depo. 54:4–10; RFA No. 4. When Nationstar debited his account immediately, he believed
that Nationstar had been “deceptive” and that it had “mishandled” his good-faith payment, and so
he stopped payment on the November transaction. See Depo. 54:18–20; RFA No. 6. Johnson
admitted that he had insufficient funds in his account to make the first payment on October 31, but
he recalled telling the representative that funds would not be available in his account until
November 1. RFA Nos. 5, 6; Interrog. No. 3. According to the transcript, this exchange did not
occur. Tr. 19.
Johnson’s arguments under the HAMP guidelines do not create a triable issue. Johnson
cannot enforce the guidelines against Nationstar because he lacks a standalone right to do so and
because he is not a third-party beneficiary of the servicers’ agreement. See Woodall v. Wells
Fargo & Co., No. 15-cv-05347-JST, 2016 WL 4539499, at *2 (N.D. Cal. Aug. 30, 2016);
Hoffman v. Bank of Am., N.A., No. C 10-2171 SI, 2010 U.S. Dist. LEXIS 70455, at *14 (N.D. Cal.
June 30, 2010). In addition, he fails to identify provisions where the guidelines in fact impose the
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requirements and limitations he suggests are present.7 Even if Johnson could point to a guideline
that Nationstar allegedly failed to comply with, he has never argued that the TPP was invalid. See
A-Mark Coin Co. v. Gen. Mills, Inc., 148 Cal. App. 3d 312, 322 (1983) (noting that “[n]o rights
are enforceable under a void contract”).
Because Johnson, not Nationstar, breached the TPP, Nationstar could not have breached by
beginning foreclosure proceedings. Instead, it was entitled to do so under the terms of the TPP
and the Deed of Trust. See Offer Letter at 6; Deed of Trust at 13. In his supplemental briefing,
Johnson submitted articles describing settlements Nationstar has entered into and fines regulatory
boards have ordered it to pay, but these articles are not enough to create a genuine issue of
material fact in his case. See Suppl. Br. 2–5. For all of these reasons, summary judgment is
appropriate on Johnson’s breach of contract claim.
B. Violation of California Civil Code § 2923.7
Johnson alleges that by not providing him with a single point of contact, Nationstar
violated Section 2923.7 of the California Civil Code. FAC ¶¶ 54–57. The HBOR provides,
“When a borrower requests a foreclosure prevention alternative, the mortgage servicer shall
promptly establish a single point of contact and provide to the borrower one or more direct means
of communication with the single point of contact.” Cal. Civ. Code § 2923.7(a). A single point of
contact is “an individual or team of personnel each of whom has the ability and authority to
perform the responsibilities described in subdivisions (b) to (d).”8 § 2923.7(e). Section 2924.12
allows a borrower to bring an action for injunctive relief to enjoin a material violation of section
7
Johnson contended at the hearing and in his supplemental briefing that Nationstar violated the
HAMP guidelines by refusing to provide him with the terms of the loan modification plan until
after he had completed the trial payments and by requiring a monthly TPP payment that was more
than 10% greater than his original loan payment. See Opposition (“Oppo.”) [Dkt. No. 60] 5; Supp.
Br. 2. Johnson included the following link in his notice and request for leave to amend:
https://www.treasury.gov/press-center/pressreleases/Documents/modification_program_guidelines.pdf.
8 These responsibilities include: “(1) Communicating the process by which the borrower may
apply for foreclosure prevention; (2) Coordinating receipt of documents and notifying the
borrower of missing documents; (3) Having access to the necessary information to inform the
borrower of the current status of the foreclosure prevention alternative; (4) Ensuring the borrower
is considered for all foreclosure prevention alternatives; (5) Having access to individuals with the
ability to stop the foreclosure process when necessary.” Cal. Civ. Code § 2923.7(b).
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2923.7. A violation is material when “the alleged violation affected a plaintiff’s loan obligations
or the modification process.” Morton v. Wells Fargo Bank, N.A., No. 16-cv-05833-HRL, 2016
WL 7117041, at *4 (N.D. Cal. Dec. 7, 2016) (internal quotation marks and citation omitted).
Nationstar is entitled to summary judgment on this claim because the undisputed evidence
shows that it assigned Johnson an SPOC. Nationstar submitted the letters it sent to Johnson on
November 15, 2014, October 8, 2015, and October 24, 2016. Janati Decl. Ex. 6. Each one
provided Johnson with the contact information of an updated Dedicated Loan Specialist that
Nationstar had assigned to him. Janati Decl. Ex. 6. The first two letters were sent to Johnson’s
attorney and identified Kristi Berry and then Michael Petrini as Johnson’s SPOC. Id. The last
letter was sent to Johnson at his property and named Todd Beyersdorf. Id. These letters provided
Johnson with the phone extensions and fax numbers of each specialist. Id. The September 2016
letter, which informed Johnson he had been approved for the TPP, also referenced Michael Petrini,
his Dedicated Loan Specialist at the time. Offer Letter 1.
These letters show Nationstar complied with its obligation to provide Johnson with an
SPOC. See Gilliam v. Bank of Am., N.A., No. 17-cv-01296, 2019 WL 1063399, at *8 (C.D. Cal.
Feb. 20, 2019) (granting summary judgment where the borrower presented nothing to undermine
the letters the servicer had sent). The letters also demonstrate that Nationstar provided two means
for reaching each specialist assigned to him. See Cal. Civ. Code § 2923.7(a) (requiring “one or
more direct means of communication”).
Neither of Johnson’s arguments save this cause of action from summary judgment. First,
he contends that Nationstar violated section 2923.7 by assigning new specialists to his account.
RFA No. 11. But the statute does not prevent the servicer from replacing the contact over time so
long as these changes do not “cause a borrower’s account to be insufficiently reviewed or
managed.” See Hild v. Bank of Am., N.A., No. 14-cv-2126, 2015 WL 1813571, at *7 (C.D. Cal.
Apr. 21, 2015). Second, Johnson argues that while Nationstar purported to provide him with an
SPOC, it did not assign one “in actuality.” Oppo. at 7. Nationstar violated section 2923.7 by
giving Johnson “the run around” and “[stonewalling] his loan modification attempts.” FAC ¶ 54.
Johnson argues that Nationstar has no record of his SPOCs making contact with him and that his
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SPOCs were never “available” to him. Oppo. 7. In discovery responses, Johnson asserted that his
Dedicated Loan Specialists were not available to speak with him and that when he did reach
someone, “they could not provide updates, dates, expected decision time frames, nothing.” See
RFA No. 11; Interrog. pg. 6.9
Even if this conduct could constitute a section 2923.7 violation, Johnson submits no
evidence to support a finding that these interactions occurred as he says they did.
10
Allegations
without evidence are insufficient to create a triable issue of fact. Cf. MacDonald v. Wells Fargo
Bank N.A., No. 14-cv-04970-HSG, 2017 WL 1150362, at *2 (N.D. Cal. Mar. 28, 2017) (finding
material dispute where there was evidence that separate SPOCs provided borrowers with
conflicting information); Curtis v. Nationstar Mortg. LLC, No. 14-cv-05167-HRL, 2016 WL
1275599, at *5 (N.D. Cal. Apr. 1, 2016) (finding material dispute where the SPOC sent
contradictory information and where the borrower received a letter from an individual who was
not assigned as his SPOC); Tuan Anh Le v. Bank of N.Y. Mellon, 152 F. Supp. 3d 1200, 1213
(N.D. Cal. 2015) (finding material dispute where there was evidence suggesting the
representatives were not sufficiently knowledgeable about the borrower’s situation).
In addition, for this claim to survive Johnson would have to present evidence that the
alleged violation was material, namely that it “affected [his] loan obligations or the modification
process.” See Morton, 2016 WL 7117041, at *4. Instead, the evidence shows that Johnson was
“afforded a meaningful opportunity to obtain . . . an alternative to foreclosure in the form of a loan
modification.” See Dowling v. Bank of Am., N.A., No. 14-cv-01041, 2017 WL 3284675, at *5
(E.D. Cal. Aug. 2, 2017). Nationstar presents evidence that Johnson made no attempt to
communicate with Nationstar after failing to comply with the TPP terms. Janati Decl. ¶¶ 9–12.
Nationstar is entitled to summary judgment on this claim.
9 The question number that corresponds to this answer was cut off in the copy of the
Interrogatories Nationstar submitted.
10 Discovery responses that completely lack detail about the alleged interactions are insufficient to
create a triable issue.
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C. Negligence
Under California negligence law, a plaintiff must prove four elements: (i) duty, (ii) breach,
(iii) causation, and (iv) damages. Conroy v. Regents of Univ. of Cal., 45 Cal. 4th 1244, 1250
(2009). Johnson asserts in his complaint that as his loan servicer, Nationstar owed him a duty to
exercise reasonable care in processing and reviewing his loan application. FAC ¶ 60. Nationstar
allegedly breached that duty by “(1) failing to review Plaintiff’s loan modification application in a
timely manner; (2) failing to provide Plaintiff with a good faith review of their loan modification
application; (3) approving Plaintiff for a Trial Modification, but refusing to provide a permanent
loan modification; and (4) initiating and continuing foreclosure in violation of public policy and
statutory restrictions on foreclosures.” Id. ¶ 61.
As I have noted previously, there is a common law duty to exercise reasonable care in the
processing of a borrower’s application for a loan modification. Order on MTD 9. Accordingly,
Nationstar does not assert that it owed no duty of care to Johnson. Mot. 11. Instead, Nationstar
argues that summary judgment is appropriate because it did not breach any duty to Johnson by
refusing to provide a permanent loan modification despite approving him for a trial modification.
Id. at 12. In addition, Johnson’s allegation that foreclosure was a violation of “public policy and
statutory restrictions” is conclusory. Id.
Johnson has provided no evidence that would allow a jury to find in his favor on the
negligence claim. His first two theories of breach—that Nationstar failed to review his loan
modification application in a timely or good faith manner—have no factual basis because Johnson
did not submit a loan modification application. See FAC ¶¶ 21, 56.11 As for Nationstar’s refusal
to provide a permanent loan modification, it only did so after Johnson had breached the clear
terms of the TPP. Johnson’s own failure to comply with the terms disqualified him from
eligibility for a permanent loan modification.
In his opposition, Johnson implies that Nationstar violated “statutory restrictions and
public policy” by resuming foreclosure proceedings in alleged violation of HAMP guidelines.
11 Johnson did not raise these theories in response to Nationstar’s motion.
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Oppo. 8. Johnson argues that before his loan was transferred from Bank of America to Nationstar
for servicing, Bank of America approved Johnson for a loan modification. Id. Johnson contends
that after the transfer Nationstar was “obligated to honor that modification” in keeping with
“HAMP federal guidelines.” Id. However, Johnson did not allege this fact in his complaint, nor
has he submitted any evidence of a prior approval by Bank of America.12 Instead, the undisputed
evidence shows that Johnson defaulted on his mortgage payments in 2010, that his loan was due
for payment on March 1, 2010, and that the current arrearage on the loan is approximately
$447,801.11. See RJN Ex. 2.; Janati Decl. ¶ 14. Under the terms of Johnson’s Deed of Trust, and
given his failure to comply with the TPP, Nationstar had the right to foreclose and could not have
breached its duty of care to Johnson by resuming those proceedings. See Deed of Trust 13.
Because Johnson has no viable theory of negligence nor any evidence to support his
allegations, Nationstar is entitled to summary judgment on this claim.
II. MOTION FOR LEAVE TO AMEND
Johnson has requested leave to file an amended complaint to research the “relationship
between Washington’s Outrage Statute and California’s Intentional Infliction of Emotional
Distress Statute as well as research into a False and Deceptive Business Claim [and] Promissory
Estoppel.”13 Supp. Br. 5.
Federal Rule of Civil Procedure 15 dictates that “[t]he court should freely give leave [to
amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Courts consider five factors when
deciding whether to grant a motion for leave to amend pursuant to Rule 15: (i) bad faith on the
part of the movant; (ii) undue delay in filing the motion; (iii) prejudice to the opposing party; (iv)
futility of amendment; and (v) whether the plaintiff has previously amended the complaint.”
12 While it is not clear, Johnson’s statement may refer to the “California Declaration” of Jason
Gardner, dated February 10, 2010. RJN Ex. 2. However, this declaration does not indicate that
Bank of America approved a loan modification but rather that a Bank of America collector had
“contacted [Johnson] to assess [his] financial situation and explore options . . . to avoid
foreclosure.” Id.
13 In his Motion, Johnson also assets that Nationstar “dual [tracked]” his loan modification. Mot.
to Amend at 5. However, I dismissed this claim when he raised it in his FAC because Johnson
never submitted a loan modification. See Order on MTD 8; FAC ¶ 48.
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Victor v. R.C. Bigelow, Inc., No. 13-cv-02976-WHO, 2015 WL 4104609, at *1 (N.D. Cal. July 7,
2015). “Above all, in exercising its discretion, the court ‘must be guided by the underlying
purpose of Rule 15—to facilitate decision on the merits, rather than on the pleadings or
technicalities.’” Castillo-Antonio v. Mejia, No. 14-cv-03637-JSC, 2014 WL 6735523, at *1 (N.D.
Cal. Nov. 26, 2014).
It would be futile to allow Johnson to amend his Complaint to assert these claims. First,
there is no reason why the Washington common law tort of outrage should apply to this case, in
which a California resident alleges an injury that occurred in California in connection with a piece
of property in California. Second, over the past two years of overseeing this case, I have heard no
suggestion of any conduct by Nationstar that “exceed[ed] all bounds of that usually tolerated in a
civilized community” that would form the basis for an IIED claim. See Miller v. Fortune
Commercial Corp., 15 Cal. App. 5th 214, 228–29 (2017) (citation omitted). Third, although
Johnson does not cite a statute for his “False and Deceptive Business Claim,” I already dismissed
Johnson’s claim under California Business and Professions Code section 17200 after agreeing
with Nationstar that Johnson’s default, not Nationstar’s alleged unlawful acts, caused his
economic harm. See Order on MTD 11. I am aware of no other California law under which the
fact of this case could possibly fit. Fourth, the facts do not support a promissory estoppel claim
because the only “clear and unambiguous” promise Nationstar made to Johnson was laid out in the
letter and call transcript. See Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 792 (9th Cir.
2012); see also Alvarez v. Nationstar, 2017 WL 1153029, at *3 (N.D. Cal. March 28, 2017)
(dismissing the promissory estoppel claim because Nationstar had only vaguely promised that it
would provide a “good faith” review of the loan modification application). In addition, the timing
of the motion, coming after the hearing on Nationstar’s motion for summary judgment, strongly
counsels against allowing Johnson to amend.
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CONCLUSION
For the reasons set forth above, Johnson’s request for leave to amend his complaint is
DENIED, and Nationstar’s motion for summary judgment is GRANTED. Judgment shall be
entered accordingly.
IT IS SO ORDERED.
Dated: August 7, 2019
William H. Orrick
United States District Judge
Case 3:17-cv-03676-WHO Document 67 Filed 08/07/19 Page 13 of 13 |
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],
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"United States of America",
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11896
Non-Argument Calendar
________________________
D.C. Docket No. 1:18-cr-20374-KMW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JESUS ARGIZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 13, 2020)
Before WILSON, MARTIN, and TJOFLAT, Circuit Judges.
PER CURIAM:
USCA11 Case: 19-11896 Date Filed: 03/13/2020 Page: 1 of 10
2
Jose Argiz was convicted of five counts of money laundering in violation of
18 U.S.C. § 1956(a). At trial, the District Court instructed the jury that it could
find that Argiz possessed the requisite mental state for the offenses—namely,
“knowledge”—if Argiz deliberately avoided learning of the illegal nature of the
scheme in which he was involved. On appeal, Argiz argues that the Court erred in
issuing this deliberate ignorance instruction. We reject that argument in Part I. He
also argues that the Court erred in refusing to instruct the jury on his theory of
defense, and in denying him the opportunity to present evidence that he possessed
diminished mental capacity at the time he committed the offense. We reject those
arguments in Part II and Part III, respectively. Therefore, we affirm.
I.
We first consider whether the District Court erred in instructing the jury on
deliberate ignorance. We conclude that it did not.
The district court has “‘broad discretion’ in formulating jury instructions
provided that ‘the charge as a whole accurately reflects the law and the facts.’”
United States v. Arias, 984 F.2d 1139, 1143 (11th Cir. 1993) (quoting United
States v. Turner, 871 F.2d 1574, 1578 (11th Cir. 1989)). We will not reverse a
conviction because of the instructions given to a jury “unless ‘the issues of law
were presented inaccurately, or the charge improperly guided the jury in such a
substantial way as to violate due process.’” United States v. Isnadin, 742 F.3d
USCA11 Case: 19-11896 Date Filed: 03/13/2020 Page: 2 of 10
3
1278, 1296 (11th Cir. 2014) (quoting United States v. Prather, 205 F.3d 1265,
1270 (11th Cir. 2000)). If the jury instruction accurately states the applicable law,
“there is no reason for reversal even though isolated clauses may, in fact, be
confusing, technically imperfect, or otherwise subject to criticism.” United States
v. Gonzalez, 834 F.3d 1206, 1222 (11th Cir. 2016) (quoting United States v.
Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013)).
The knowledge element of a criminal statute “can be proved by
demonstrating either actual knowledge or deliberate ignorance.” Prather, 205 F.3d
at 1270. In other words, “if a party has his suspicion aroused but then deliberately
omits to make further enquiries, because he wishes to remain in ignorance, he is
deemed to have knowledge.” United States v. Hristov, 466 F.3d 949, 952 (11th
Cir. 2006) (quoting United States v. Rivera, 944 F.2d 1563, 1570 (11th Cir. 1991)).
Therefore, a deliberate ignorance jury instruction is appropriate if the facts
“support the inference that the defendant was aware of a high probability of the
existence of the fact in question and purposely contrived to avoid learning all of
the facts in order to have a defense in the event of a subsequent prosecution.”
Rivera, 944 F.2d at 1571 (quoting United States v. Alvarado, 838 F.2d 311, 314
(9th Cir. 1987)). This standard applies whether the evidence is direct or
circumstantial. Arias, 984 F.2d at 1143. We review de novo a defendant’s claim
USCA11 Case: 19-11896 Date Filed: 03/13/2020 Page: 3 of 10
4
that the district court erred in instructing the jury on deliberate ignorance. United
States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993).
Here, the District Court did not err in instructing the jury on deliberate
ignorance. Argiz agreed to let a stranger deposit money into his bank accounts
without any explanation of why the stranger needed to do so. Then, Argiz would
hand deliver the deposits to different unknown individuals at different locations
pursuant to instructions from this stranger. For his services, Argiz was paid $500
per transaction.
Because of the sketchy and inexplicable circumstances surrounding this
arrangement and the fee that was being paid, it is a permissible inference that Argiz
was suspicious of the scheme but purposefully chose not to investigate it in order
to avoid learning the illegal nature of the funds. People who need to distribute
lawfully obtained money (1) do not enlist the help of random people, like Argiz,
whom they do not know, (2) do not request to use this random person’s bank
account, and (3) do not pay this random person $500 every time he distributes the
money deposited into his bank account to unknown individuals at various
locations.1
Therefore, the jury reasonably could have concluded that Argiz
suspected that he was involved in unlawful activity, and that he chose not to
1 While $500 per transaction is not an exorbitant amount of money, it would take 40
hours—a full work-week—for a law-abiding citizen, who is earning $12.50 per hour, to earn that
much money. And, of course, the law-abiding citizen would have to pay taxes on that income.
USCA11 Case: 19-11896 Date Filed: 03/13/2020 Page: 4 of 10
5
investigate so that he could keep making his commission. This inference is
bolstered by the fact that Argiz initially lied to investigators regarding the
circumstances under which he met and agreed to help this stranger—if Argiz did
not suspect that he was engaged in illegal activity, it is less likely that he would
have lied to investigators. Accordingly, we affirm as to this issue.
II.
We next consider whether the District Court erred in refusing to instruct the
jury on Argiz’s theory of defense. We conclude that it did not.
A criminal defendant is entitled to a theory-of-defense instruction where
there is any foundation for the instruction in the evidence, even if the evidence is
“weak, insufficient, inconsistent, or of doubtful credibility.” United States v.
Lively, 803 F.2d 1124, 1126 (11th Cir. 1986) (quoting United States v. Young, 464
F.2d 160, 164 (5th Cir. 1972)). However, the refusal to give a theory-of-defense
instruction is not error if the defendant’s general theory was covered by the
instructions actually given by the district court. United States v. Barham, 595 F.2d
231, 245 (5th Cir. 1979).2
2 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), we adopted as binding
precedent all of the decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
USCA11 Case: 19-11896 Date Filed: 03/13/2020 Page: 5 of 10
6
Here, the District Court did not abuse its discretion by refusing to instruct
the jury on Argiz’s theory of defense because the instruction was substantially—if
not entirely—covered by the Court’s other instructions.
Argiz requested that the Court issue one of the three following theory-ofdefense instructions. The numbers in brackets are inserted for ease of analysis.
First:
It is the theory of the defense that [1] Jose Argiz did not know
that any of the money deposited into his bank account was the proceeds
of unlawful activity. The defense contends that [2] Jose Argiz was also
victim of the bad actors, was not a part of their scheme and did not
intentionally associate with or participate in the crime with them. [3]
The defense contends that Jose Argiz was not aware of and did not
participate in any of the phone calls made to the victims in this case.
[4] The defense also contends that Jose Argiz was misled by the bad
actors just as the victims were. [5] If the government did not prove
beyond a reasonable doubt that Jose Argiz knew that the money
deposited into his account was from fraud then you must find him not
guilty.
Second:
[Argiz] has raised as a defense that he did not have the knowledge
required to be guilty of money laundering. Specifically, [6] he did not
know that [] the money which was deposited into his Bank of America
accounts . . . were the proceeds of some kind of unlawful activity, or
[7] that the transactions were designed to conceal or disguise the nature,
location, source, ownership, or control of the proceeds of the illegal
activity.
[8] It is the government’s burden to prove beyond a reasonable doubt
that Jose Jesus Argiz had the knowledge required to commit money
laundering.
USCA11 Case: 19-11896 Date Filed: 03/13/2020 Page: 6 of 10
7
[9] If after considering all of the evidence you have a reasonable doubt
about whether Jose Jesus Argiz had the knowledge required for money
laundering, or if [Argiz] did not know that the money involved in the
transactions represented proceeds from some form of activity that is a
felony under state or Federal law you must find him not guilty of that
offense.
Third:
[10] It is the theory of the defense that Jose Argiz did not know
and had no reason to know that any of the money deposited into his
bank account was the proceeds of unlawful activity. [11] The defense
contends that Jose Argiz was a victim of the bad actors, was not a part
of their scheme and did not intentionally associate with or participate
in the crime with them. [12] The defense also contends that Jose Argiz
was merely foolish and perhaps careless, but not a willful participant in
any crime. [13] If you find that Jose Argiz was merely foolish and did
not have knowledge that the money deposited into his account was the
proceeds of the specified unlawful activity (wire fraud) then you must
find him not guilty.
The “theories” contained in these proposed instructions can be categorized
into three arguments. First, Points 1, 5, 6, 8, 9, 10, 12, and 13 all assert that Argiz
did not know that the money he was handling was the proceeds of illegal activity.
Second, Point 7 asserts that Argiz did not have a different aspect of the requisite
knowledge to be convicted of the crime—it claims that he did not know that the
transactions were designed to conceal illegal activity. Third, Points 2, 3, 4, and 11
all assert that Argiz was an unwitting victim of the scheme who did not intend to
participate in any illegal activity.
The District Court did not err by declining to give Argiz’s proposed theoryof-defense instructions because the Court’s instructions adequately covered the
USCA11 Case: 19-11896 Date Filed: 03/13/2020 Page: 7 of 10
8
substance of the proposed instructions. First, Points 1, 5, 6, 8, 9, 10, 12, and 13 are
covered by the Court’s instruction that the jury must find that “the defendant knew
that the money or property involved in the transaction were the proceeds of some
kind of unlawful activity.” Second, Point 7 is covered by the Court’s instruction
that the jury must find that “the defendant knew that the transaction was designed
in whole or in part to conceal or disguise the nature, location, source, ownership or
control of the proceeds.” Third, all of the Points (1-13) are covered by the Court’s
deliberate ignorance instruction:
In other words, you must find beyond a reasonable doubt that the
defendant was a willful participant and not merely a knowing spectator.
If a defendant’s knowledge of a fact is an essential part of a crime it’s
enough that the defendant was aware of a high probability that the fact
existed; unless the defendant actually believed the fact didn’t exist.
Deliberate avoidance of positive knowledge, which is the
equivalent of knowledge, occurs, for example, if a defendant possesses
a package and believes it contains a controlled substance but
deliberately avoids learning that it contains the controlled substance so
he or she can deny knowledge of the package’s contents.
So, in this case, you may find that a defendant knew that the
money or property involved in the financial transactions were the
proceeds of some kind of unlawful activity if you determine beyond a
reasonable doubt that the defendant, one, actually knew that the money
or property involved in the financial transactions were the proceeds of
some kind of unlawful activity.
Or, two, had every reason to know but deliberately closed his
eyes. But I must emphasize that the requisite proof of knowledge on the
part of the defendant cannot be established by merely demonstrating
that the defendant was negligent, careless or foolish.
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9
Therefore, we affirm as to this issue.
III.
We finally consider whether the District Court erred in denying Argiz the
opportunity to present evidence regarding his alleged diminished mental capacity.
Because the District Court never actually denied Argiz such an opportunity, it did
not err.
The record does not support Argiz’s contention that the District Court denied
him the opportunity to present evidence regarding diminished capacity. At trial,
defense counsel made the following statement to the Court:
In the instances where the Government is asking for a deliberate
ignorance instruction I would argue that the defense should be
permitted to argue diminished capacity to the jury.
Because in deliberate ignorance the Government is asking --
saying a defendant should have known.
So it is fundamentally unfair to put that standard on someone
who does not have the ability or capacity to perceive information like a
reasonable person would.
So in this particular instance that is what I would argue in the
event the deliberate ignorance instruction is given -- as your Honor has
indicated she would -- I would like to preserve for the record that I
believe a diminished capacity defense should be permitted.
In response, the Court said: “All right. That issue is preserved for the record.”
Then, when Argiz’s opportunity to present evidence about diminished capacity
came in his case-in-chief, Argiz rested his case without presenting such evidence.
USCA11 Case: 19-11896 Date Filed: 03/13/2020 Page: 9 of 10
10
We cannot see how the District Court’s statement could be interpreted as
precluding Argiz from offering evidence about diminished capacity. The Court
simply did not rule that such evidence would be precluded. Therefore, Argiz’s
failure to present evidence regarding diminished capacity was his own error, rather
than the District Court’s error.3
IV.
Accordingly, we affirm.
AFFIRMED.
3 Admittedly, during sentencing, the Court suggested that such evidence would have been
inadmissible at trial. But Argiz cannot argue that the Court’s statements, which it made after
Argiz was convicted, affected his decision not to present evidence of diminished capacity or
precluded him from offering such evidence before he was convicted because the Court had not
yet made those statements.
USCA11 Case: 19-11896 Date Filed: 03/13/2020 Page: 10 of 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-16-10266/USCOURTS-ca11-16-10266-0/pdf.json | [
[
"United States of America",
"Appellee"
],
[
"Bud Pratt Williams",
"Appellant"
]
] | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10266
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cr-20345-PAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BUD PRATT WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 13, 2016)
Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
USCA11 Case: 16-10266 Date Filed: 09/13/2016 Page: 1 of 4
2
Bud Williams, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion to reduce his sentence, pursuant to 18 U.S.C.
§ 3582(c)(2), based on Amendments 742 and 782 to the Sentencing Guidelines.
After review,1 we affirm the district court.
A district court may modify a defendant’s term of imprisonment if the
defendant was sentenced based on a sentencing range that has subsequently been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any reduction,
however, must be consistent with the Sentencing Commission’s policy statements.
Id.
Amendment 742 was not given retroactive effect. U.S.S.G. § 1B1.10(d).
Williams therefore cannot receive relief under § 3582(c)(2) based on this
amendment.
Amendment 782 did not lower Williams’ guideline range. Williams’ total
offense level, criminal history category, and guideline range were determined by
the career-offender guideline. See United States v. Lawson, 686 F.3d 1317, 1321
(11th Cir. 2012) (stating when a drug offender is sentenced under the careeroffender guideline in § 4B1.1, the guideline range upon which his sentence is
based is calculated from § 4B1.1, not § 2D1.1). Because an amendment to the
drug quantities listed in § 2D1.1 does not affect a career offender’s guideline
1
We review the district court’s conclusions about the scope of its legal authority under
§ 3582(c)(2) de novo. United States v. Colon, 707 F.3d 1255, 1258 (11th Cir. 2013).
USCA11 Case: 16-10266 Date Filed: 09/13/2016 Page: 2 of 4
3
range, he is ineligible for a sentence reduction under § 3582(c)(2) based on an
amendment to that guideline. Id. (affirming the denial of a sentence reduction
under Amendment 750 to the Sentencing Guidelines). Although Williams argues
the district court erred by applying the career-offender guideline—and although the
district court itself noted in a § 2255 order that this may have been an error2
—the
district court lacked the authority to revisit that decision in considering his § 3582
motion. See United States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir.
1997) (explaining a legal decision made at one stage of litigation, unchallenged in
a subsequent appeal when the opportunity existed, becomes the law of the case for
future stages of the same litigation). Applying the new guidelines while keeping
the original sentencing decisions in place, as required by § 3582(c)(2), results in
the same guideline range, regardless of any effect the amendments may have on his
offense level or criminal history category. See United States v. Bravo, 203 F.3d
778, 780 (11th Cir. 2000) (explaining when recalculating the guideline range, the
district court can only substitute the amended guideline and must keep intact all
other guidelines decisions made during the original sentencing). Therefore, the
2
Williams filed a § 2255 motion to vacate, arguing in part he received ineffective
assistance of counsel due to his counsel’s failure to challenge his career offender enhancement.
The district court stated that “Williams is correct that he was not a career offender,” but denied
the motion because Williams was not prejudiced by the enhancement. The district court
explained that without the enhancement, Williams’ guideline range would have been 188 to 235
months’ imprisonment, and his actual sentence was within that range. Williams appealed the
denial of his § 2255 motion to this Court, which is currently pending.
USCA11 Case: 16-10266 Date Filed: 09/13/2016 Page: 3 of 4
4
court did not err in concluding Williams was ineligible for a sentence reduction
based on Amendment 782 or Amendment 742.
AFFIRMED.
USCA11 Case: 16-10266 Date Filed: 09/13/2016 Page: 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_15-cv-01776/USCOURTS-caed-1_15-cv-01776-0/pdf.json | [
[
"J. Cabrera",
"Defendant"
],
[
"Vasilis Sakellaridis",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
VASILIS SAKELLARIDIS,
Plaintiff,
v.
J. CABRERA,
Defendant.
Case No. 1:15-cv-01776-DAD-MJS (PC)
ORDER GRANTING DEFENDANT’S
MOTION TO MODIFY SCHEDULING
ORDER AS TO EXHAUSTION MOTION
DEADLINE
(ECF Nos. 15 & 17)
MODIFIED EXHAUSTION MOTION
DEADLINE: OCTOBER 28, 2016
Plaintiff Vasilis Sakellaridis, a state prisoner proceeding pro se and in forma
pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 24,
2015. (ECF No. 1.) Plaintiff’s complaint proceeds against Defendant J. Cabrera for
retaliation in violation of the First Amendment of the United States Constitution.
Pending before the Court is Defendant’s September 2, 2016 motion for a forty-five
extension of the deadline to file an exhaustion motion, to October 28, 2016. (ECF No.
17.) To date, Plaintiff has not filed an opposition. The matter is submitted. Local Rule
Case 1:15-cv-01776-DAD-MJS Document 18 Filed 09/23/16 Page 1 of 2
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230(l).
Defendant moves for an extension on the grounds that Plaintiff’s transfer to an outof-state prison led to administrative delays in scheduling Plaintiff’s deposition. Plaintiff’s
deposition was ultimately scheduled for September 15, 2016; the exhaustion motion
deadline was September 13, 2016. (ECF No. 15.)
The Court may modify its scheduling order upon a showing of good cause. Fed.
R. Civ. P. 16(b)(4). Good causing appearing, IT IS HEREBY ORDERED:
1. Defendant’s motion to modify the scheduling order to extend the exhaustion
motion deadline (ECF No. 17) is GRANTED; and
2. Any motion for summary judgment for failure to exhaust administrative
remedies must be filed on or before October 28, 2016.
IT IS SO ORDERED.
Dated: September 22, 2016 /s/Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
Case 1:15-cv-01776-DAD-MJS Document 18 Filed 09/23/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-3_06-cv-00163/USCOURTS-ared-3_06-cv-00163-4/pdf.json | [
[
"Dan Ellison",
"Defendant"
],
[
"Waymond Hutton",
"Defendant"
],
[
"Delbert Robbins",
"Defendant"
],
[
"Ernest Sexton",
"Plaintiff"
],
[
"Jo Ann Sexton",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
ERNEST SEXTON AND JO ANN SEXTON PLAINTIFFS
v. 3:06CV00163-WRW
SHERIFF WAYMOND HUTTON, Individually;
DAN ELLISON, in his Official Capacity only; and
DEPUTY DELBERT ROBBINS, Individually
and in his Official Capacity DEFENDANTS
ORDER
Pending are Plaintiffs’ unopposed Motion to Extend Deadline to Submit Jury Instructions
(Doc. No. 37), unopposed Motion to Amend Pre-Trial Information Sheet (Doc. No. 38), and
unopposed Motion to Reopen Discovery (Doc. No. 48). Plaintiffs’ Motions (Doc. No.’s 37, 38,
& 48) are GRANTED.
Pending is Defendants’ Motion to Amend Pre-Trial Information Sheet (Doc. No. 44).
Plaintiffs have responded (Doc. No. 46). Defendants’ Motion (Doc. No. 44) is GRANTED.
The parties have to and including November 14, 2007, to complete discovery. Plaintiffs
and Defendants are ordered to file Amended Pre-Trial Information Sheets by November 28,
2007.
This Order renders moot Defendant’s pending Motion for Summary Judgment
(Doc. No. 32). The parties have to and including December 12, 2007, to file a motion for
summary judgment, and to and including January 10, 2008, to respond to any filed motion for
summary judgment.
IT IS SO ORDERED this 17th day of October, 2007.
/s/Wm. R. Wilson, Jr.
UNITED STATES DISTRICT JUDGE
Case 3:06-cv-00163-BSM Document 50 Filed 10/17/07 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-06-04590/USCOURTS-ca4-06-04590-0/pdf.json | [
[
"Robert Genard Byrd",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4588
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARTHUR JAMES MUNGO, JR., a/k/a Famous, a/k/a
JJ,
Defendant - Appellant.
No. 06-4589
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN ALLEN BYRD,
Defendant - Appellant.
No. 06-4590
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
Appeal: 06-4590 Doc: 49 Filed: 12/17/2007 Pg: 1 of 6
- 2 -
ROBERT GENARD BYRD, a/k/a Stank,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-01042-TLW)
Submitted: November 28, 2007 Decided: December 17, 2007
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Clifford L. Welsh, WELSH & HUGHES, North Myrtle Beach, South
Carolina; John M. Ervin, III, ERVIN LAW FIRM, PA, Darlington, South
Carolina; Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence,
South Carolina, for Appellants. Rose Mary Parham, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 06-4590 Doc: 49 Filed: 12/17/2007 Pg: 2 of 6
- 3 -
PER CURIAM:
Pursuant to written plea agreements, Arthur James Mungo,
Jr., Steven Allen Byrd, and Robert Genard Byrd pled guilty to
conspiracy to possess with intent to distribute 50 grams or more of
cocaine base and 500 grams or more of cocaine, in violation of 21
U.S.C. §§ 841(b)(1)(A) and 846 (2000). Mungo and Robert Byrd also
pled guilty to possession of a firearm during and in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2000).
Mungo was sentenced to 210 months’ imprisonment, Steven Byrd was
sentenced to 120 months’ imprisonment, and Robert Byrd was
sentenced to 300 months’ imprisonment. Finding no error, we
affirm.
On appeal, counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal, but contending (1) the district
court wrongly classified Mungo as a career criminal; (2) the
district court failed to comply with the requirements of Federal
Rule of Criminal Procedure 11 in accepting Steven and Robert Byrd’s
guilty pleas; (3) the district court did not properly calculate
Robert Byrd’s advisory guideline range; and (4) the district
court’s sentence for Robert Byrd was unreasonable. The Defendants
were advised of their right to file a pro se supplemental brief,
but did not do so, and the Government elected not to file a
responsive brief.
Appeal: 06-4590 Doc: 49 Filed: 12/17/2007 Pg: 3 of 6
- 4 -
Mungo questions whether he was properly classified as a
career offender because the drug conspiracy began prior to when he
committed the acts underlying his prior convictions. Section 4B1.1
of the United States Sentencing Guidelines provides that a
defendant should be classified as a career offender when (1) the
defendant is over eighteen, (2) the instant crime is a felony that
is a crime of violence or a controlled substance offense, and
(3) the defendant has at least two prior felony convictions for
either a crime of violence or a controlled substance offense.
Mungo only challenges whether his other felony
convictions were “prior” to his conviction for the drug conspiracy.
The drug conspiracy began in January 1997 and continued through
September 2005. To establish that Mungo was a career offender, the
district court relied on felony convictions Mungo sustained in 1998
and 2002. In so doing, the district court properly determined that
because the conspiracy continued after Mungo was convicted for the
other offenses, those convictions can properly be considered “prior
felony convictions” for purposes of categorizing him as a career
offender. See United States v. Elwell, 984 F.2d 1289, 1298 (1st
Cir. 1993).
Steven and Robert Byrd question whether the district
court complied with Fed. R. Crim. P. 11 in conducting their guilty
plea hearings. Reviewing their records for plain error, we
Appeal: 06-4590 Doc: 49 Filed: 12/17/2007 Pg: 4 of 6
- 5 -
conclude the district court conducted a thorough inquiry pursuant
to Rule 11. Accordingly, we find no error.
Lastly, Robert Byrd contends that his sentence is
unreasonable, but he offers no basis for this contention. The
record shows the district court appropriately calculated the
advisory guideline range and considered it in conjunction with
other relevant factors under the Guidelines and 18 U.S.C. § 3553(a)
(2000). See United States v. Moreland, 437 F.3d 424, 432-33 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). Robert Byrd’s
sentence, which is well within the applicable Guidelines range and
the statutory maximum, is therefore 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).
Pursuant to Anders, we have examined Defendants’
respective records and find no meritorious issues for appeal. We
therefore affirm the district court’s judgment. We also deny
Robert Byrd’s motion to deconsolidate his case from Steven Byrd’s
and Mungo’s appeals. This court requires that counsel inform their
respective clients, in writing, of their right to petition the
Supreme Court of the United States for further review. If any
Defendant requests that such a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
Appeal: 06-4590 Doc: 49 Filed: 12/17/2007 Pg: 5 of 6
- 6 -
Counsel’s motion must state that a copy thereof 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 the decisional process.
AFFIRMED
Appeal: 06-4590 Doc: 49 Filed: 12/17/2007 Pg: 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-3_03-cv-01201/USCOURTS-almd-3_03-cv-01201-1/pdf.json | [
[
"Alabama Cooperative Extension System at Auburn University",
"Defendant"
],
[
"Robert Drakeford",
"Plaintiff"
],
[
"Gaines Smith",
"Defendant"
],
[
"William Walker",
"Defendant"
]
] | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
ROBERT DRAKEFORD, )
)
Plaintiff, )
)
v. ) Civil Action No. 3:03cv1201-WHA
) (WO)
)
ALABAMA COOPERATIVE )
EXTENSION SYSTEM, )
WILLIAM WALKER, and GAINS SMITH, )
)
Defendants. )
FINAL JUDGMENT
In accordance with the Memorandum Opinion and Order entered on this day granting the
Defendants’ Motion for Summary Judgment:
Judgment is entered in favor of the Defendants, Alabama Cooperative Extension System
at Auburn University, William Walker and Gaines Smith, and against the Plaintiff, Robert
Drakeford, and this case is DISMISSED with prejudice.
Costs are taxed against the Plaintiff.
DONE this 6th day of February, 2006.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
Case 3:03-cv-01201-WHA-VPM Document 112 Filed 02/06/06 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_14-cv-02025/USCOURTS-caed-2_14-cv-02025-0/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Susan Carol Perry-Dillard",
"Plaintiff"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SUSAN CAROL PERRY-DILLARD, No. 2:14-CV-2025-CMK
Plaintiff,
vs. ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
Plaintiff, who is proceeding with retained counsel, brings this action under
42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.
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 therefor. The request to proceed in forma
pauperis will, therefore, be granted. See 28 U.S.C. § 1915(a). Plaintiff will be required by this
order to submit documents to the United States Marshal and file notice with the court. Plaintiff
is warned that failure to comply with this order may result in the dismissal of this action. See
Local Rule 110.
1
Case 2:14-cv-02025-CMK Document 3 Filed 09/05/14 Page 1 of 2
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Accordingly, 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 on plaintiff 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 15 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 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 60 days from the date of this order, such service of process to
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 in Washington, D.C.,
pursuant to Federal Rule of Civil Procedure 4(i)(1)(A) & (B); and
6. The United States 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
the General Counsel, Region IX, 160 Spear Street, Suite 800, San Francisco, CA 94105-1545,
pursuant to Federal Rule of Civil Procedure 4(i)(2).
DATED: September 4, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
2
Case 2:14-cv-02025-CMK Document 3 Filed 09/05/14 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-00860/USCOURTS-cand-3_09-cv-00860-0/pdf.json | [
[
"Miguel Villanueva",
"Plaintiff"
],
[
"Robert K. Wong",
"Defendant"
]
] | United States District Court
For the Northern District of California
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No. C 09-0860 RS (PR)
ORDER FOR FURTHER BRIEFING
United States District Court
For the Northern District of California
*E-Filed 5/27/10*
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
MIGUEL VILLANUEVA,
Petitioner,
v.
ROBERT K. WONG, Warden,
Respondent. /
No. C 09-0860 RS (PR)
ORDER REQUESTING FURTHER
BRIEFING
A recent en banc decision from the Ninth Circuit addressed important issues relating
to federal review of parole decisions in California. See Hayward v. Marshall, No. 06-55392,
2010 WL 1664977 (9th Cir. April 22, 2010) (en banc). The Court requests that the parties
submit supplemental briefs (not to exceed 12 pages in length) explaining their views on how
the Hayward en banc decision applies to this parole denial habeas case. The Court sets the
following schedule:
1. Within 10 days of this order, respondent shall send to petitioner a copy of the
Hayward decision.
2. Within 30 days of this order, respondent shall file with the Court and serve on
petitioner a supplemental brief on the impact of Hayward on this action.
Case 3:09-cv-00860-RS Document 10 Filed 05/27/10 Page 1 of 2
United States District Court
For the Northern District of California
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No. C 09-0860 RS (PR)
2 ORDER FOR FURTHER BRIEFING
3. Within 15 days thereafter, petitioner may file with the Court and serve on
respondent a supplemental brief on the impact of Hayward on this action.
IT IS SO ORDERED.
DATED: May ___, 2010
RICHARD SEEBORG
United States District Judge
27
Case 3:09-cv-00860-RS Document 10 Filed 05/27/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-04141/USCOURTS-cand-3_09-cv-04141-1/pdf.json | [
[
"Sandra Kelly",
"Defendant"
],
[
"Damien Dwayne Olive",
"Plaintiff"
],
[
"Ken Wong",
"Defendant"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
DAMIEN DWAYNE OLIVE,
Plaintiff,
v.
KEN WONG, PA III, and SANDRA
KELLY, PA I,
Defendants.
_________________________________
)
)
)
)
)
)
)
)
)
)
)
No. C 09-4141 JSW (PR)
ORDER GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS
(Docket no. 2)
Plaintiff's application for leave to proceed in forma pauperis under 28 U.S.C.
§ 1915 is GRANTED. The total filing fee due is $ 350.00. In light of Plaintiff’s
balance and deposits over the last six months, no initial partial payment is due at this
time. See 28 U.S.C. § 1915(b)(1). A copy of this order and the attached instructions
will be sent to the Plaintiff, the prison trust account office, and the Court’s financial
office.
This order terminates Docket No. 2.
IT IS SO ORDERED.
DATED: April 16, 2010
JEFFREY S. WHITE
United States District Judge
Case 3:09-cv-04141-JSW Document 6 Filed 04/16/10 Page 1 of 3
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
DAMIEN D OLIVE,
Plaintiff,
v.
KEN WONG et al,
Defendant. /
Case Number: CV09-04141 JSW
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 April 16, 2010, 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.
Damien Dwayne Olive
T47433
San Quentin State Prison
San Quentin, CA 94974
Dated: April 16, 2010
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
Case 3:09-cv-04141-JSW Document 6 Filed 04/16/10 Page 2 of 3
(5/30/03) 3
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
INSTRUCTIONS FOR PAYMENT OF PRISONER'S FILING FEE
The prisoner shown as the plaintiff or petitioner on the attached order has filed a civil action in
forma pauperis in this court and owes to the court a filing fee. Pursuant to 28 U.S.C. § 1915, the
fee is to be paid as follows:
The initial partial filing fee listed on the attached order should be deducted by the prison
trust account office from the prisoner's trust account and forwarded to the clerk of the
court as the first installment payment on the filing fee. This amount is twenty percent of
the greater of (a) the average monthly deposits to the prisoner's account for the 6-month
period immediately preceding the filing of the complaint/petition or (b) the average
monthly balance in the prisoner's account for the 6-month period immediately preceding
the filing of the complaint/petition.
Thereafter, on a monthly basis, 20 percent of the preceding month's income credited to
the prisoner's trust account should be deducted and forwarded to the court each time the
amount in the account exceeds ten dollars ($10.00). The prison trust account office
should continue to do this until the filing fee has been paid in full.
If the prisoner does not have sufficient funds in his/her account to pay the initial partial filing
fee, the prison trust account office should forward the available funds, and carry the balance
forward each month until the amount is fully paid.
If the prisoner has filed more than one complaint, (s)he is required to pay a filing fee for each
case. The trust account office should make the monthly calculations and payments for each case
in which it receives an order granting in forma pauperis and these instructions.
The prisoner's name and case number must be noted on each remittance. The initial partial
filing fee is due within thirty days of the date of the attached order. Checks should be made
payable to Clerk, U.S. District Court and sent to Prisoner Accounts Receivable, U.S. District
Court, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102.
cc: Plaintiff/Petitioner
Finance Office
Case 3:09-cv-04141-JSW Document 6 Filed 04/16/10 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_09-cv-02511/USCOURTS-caed-2_09-cv-02511-3/pdf.json | [
[
"Angelina Diaz",
"Plaintiff"
],
[
"Armida Diaz",
"Plaintiff"
],
[
"Sabrina Diaz",
"Plaintiff"
],
[
"United States Postal Service",
"Defendant"
],
[
"United States of America",
"Defendant"
]
] | 1
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1
BENJAMIN B. WAGNER
United States Attorney
KELLI L. TAYLOR
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: (916) 554-2741
Facsimile: (916) 554-2900
Attorneys for United States of America
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE EASTERN DISTRICT OF CALIFORNIA
SABRINA DIAZ, a minor, and ANGELINA
DIAZ, a minor, by and through their Guardian ad
Litem, ARMIDA DIAZ,
Plaintiffs,
vs.
UNITED STATES OF AMERICA; and UNITED
STATES POSTAL SERVICE, inclusive,
Defendants.
Case No. 2:09-cv-02511-FCD-JFM
STIPULATION AND ORDER TO EXTEND
TIME TO FILE FINAL DISPOSITIONAL
DOCUMENTS UNTIL AUGUST 10, 2010
On May 17, 2010, the parties filed a notice of settlement conditioned on the court’s
approval of a petition for minor’s compromise. (Court Docket (“CD”) #16.) This Court agreed
to allow the petition for minor’s compromise to be heard on shortened time and for the parties to
have until July 2, 2010 to file the final dispositional documents. (CD #17). Following that
settlement, Plaintiffs discovered the existence of a MediCal lien and have been attempting to get
information on that lien and negotiate it prior to the filing of the petition for Minor’s
Compromise. Plaintiffs have been unable to complete that task and thus request a further sixty
day extension of time to have the petition for minor’s compromise heard and the final
dispositional documents filed. Defendants hereby stipulate to that request.
Case 2:09-cv-02511-TLN-KJN Document 19 Filed 07/06/10 Page 1 of 2
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IT IS SO STIPULATED:
DATED: July 2, 2010 DRYER BABICH BUCCOLA CALLAHAM & WOOD
By: /s/ Christopher Wood
CHRISTOPHER WOOD
Attorney for Plaintiffs
DATED: July 2, 2010 BENJAMIN B. WAGNER
United States Attorney
By: /s/ Kelli L. Taylor
KELLI L. TAYLOR
Assistant U.S. Attorney
Attorneys for the United States
ORDER
BASED ON THE PARTIES’ STIPULATION AND GOOD CAUSE APPEARING, this
Court hereby extends the time to hear the petition for minor’s compromise and orders that the
final dispositional documents are now due on or before August 10, 2010.
IT IS SO ORDERED.
Date: July 6, 2010
Case 2:09-cv-02511-TLN-KJN Document 19 Filed 07/06/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_15-cv-01540/USCOURTS-cand-3_15-cv-01540-1/pdf.json | [
[
"Michelle Garcia",
"Cross-claimant"
],
[
"Wyndham Vacation Ownership, Inc.",
"Cross-defendant"
],
[
"Wyndham Vacation Resorts, Inc.",
"Cross-defendant"
],
[
"Wyndham Worldwide Corporation",
"Cross-defendant"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
WYNDHAM VACATION RESORTS, INC., WYNDHAM VACATION OWNERSHIP, INC., AND WYNDHAM WORLDWIDE CORPORATION
Plaintiffs,
vs.
MICHELLE GARCIA,
Defendant.
Case No.: 15-CV-1540 YGR
ORDER OF REFERRAL TO DETERMINE
WHETHER CASES ARE RELATED
Pursuant to Civil Local Rule 3-12(c), this case is hereby referred to the Honorable William H.
Orrick to consider whether it is related to Thomas Crook and Donna Crook v. Wyndham Vacation
Ownership, Inc., Wyndham Worldwide, Anita Howell, Linda Tanner, Case No. 13-cv-3669 WHO.
IT IS SO ORDERED.
Date: July 20, 2015 _________________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
Case 3:15-cv-01540-WHO Document 23 Filed 07/20/15 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_16-cv-00030/USCOURTS-caed-1_16-cv-00030-0/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Marian Whitney",
"Plaintiff"
]
] | Page 1 STIPULATION
[1:16-CV-30-EPG]
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Mackenzie Legal, PLLC
1003 Whitman Street
Tacoma, WA 98406
(206) 300-9063
KELSEY BROWN, CA #263109
Mackenzie Legal, PLLC
1003 Whitman Street
Tacoma, WA 98406
(206) 300-9063
Email: [email protected]
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION
MARIAN WHITNEY,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL SECURITY
Defendant.
Case # 1:16-CV-30-EPG
STIPULATED EXTENSION OF TIME;
ORDER
The parties hereby stipulate by counsel, that Plaintiff shall have a second 30 day
extension of time to file Plaintiff’s opening brief, in accordance with the scheduling order.
Plaintiff’s counsel is ill and a solo practitioner. As a result, counsel needs additional time to
draft the Opening Brief. Opening Brief shall now be due on October 21, 2016.
The parties stipulate that the Court’s Scheduling Order shall be modified accordingly.
Dated September 22, 2016: /s/ Kelsey M Brown
KELSEY MACKENZIE BROWN CA #263109
Mackenzie Legal, PLLC
Case 1:16-cv-00030-EPG Document 13 Filed 09/23/16 Page 1 of 2
Page 2 STIPULATION
[1:16-CV-30-EPG]
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Mackenzie Legal, PLLC
1003 Whitman Street
Tacoma, WA 98406
(206) 300-9063
1003 Whitman Street
Tacoma, WA 98406
(206) 300-9063
Attorney for Plaintiff
Dated September 22, 2016: s/ KELSEY M. BROWN for Sundeep Patel
SUNDEEP PATEL
(per e-mail authorization)
Special Assistant U.S. Attorney
Office of the General Counsel
Of Attorneys for Defendant
ORDER
Based on the above stipulation and good cause appearing therein, the Court adopts the
parties’ stipulation. Plaintiff’s opening brief shall be filed no later than October 21, 2016.
Defendant’s opposition brief shall be filed no later than November 21, 2016. Plaintiff may file
any reply brief no later than December 6, 2016.
IT IS SO ORDERED.
Dated: September 23, 2016 /s/
UNITED STATES MAGISTRATE JUDGE
Case 1:16-cv-00030-EPG Document 13 Filed 09/23/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_13-cv-02104/USCOURTS-caed-1_13-cv-02104-0/pdf.json | [
[
"Vickie Madrid",
"Defendant"
],
[
"Michael B. Williams",
"Plaintiff"
]
] | 1
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1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Plaintiff is a civil detainee proceeding pro se in a civil rights action pursuant to 42
U.S.C. ' 1983. Individuals detained pursuant to California Welfare and Institutions Code
' 6600 et seq. are civil detainees and are not prisoners within the meaning of the Prison
Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000).
Plaintiff has not paid the $400.00 filing fee, or submitted an application to proceed
in forma pauperis on the appropriate form pursuant to 28 U.S.C. ' 1915. Accordingly, IT
IS HEREBY ORDERED that:
1. The Clerk=s Office shall send to Plaintiff the attached form for application to
proceed in forma pauperis for a non-prisoner,
2. Within thirty days of the date of service of this order, Plaintiff shall submit
the completed and signed application to proceed in forma pauperis for a
non-prisoner, or in the alternative, pay the $400.00 filing fee for this
MICHAEL B. WILLIAMS,
Plaintiff,
v.
VICKIE MADRID,
Defendant.
1:13-cv-02104-MJS (PC)
ORDER TO SUBMIT A
NON-PRISONER APPLICATION
TO PROCEED IN FORMA PAUPERIS
OR PAY THE $400.00 FILING FEE
WITHIN THIRTY DAYS
Case 1:13-cv-02104-MJS Document 3 Filed 01/02/14 Page 1 of 2
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action, and
3. Failure to comply with this order will result in dismissal of this action.
IT IS SO ORDERED.
Dated: January 2, 2014 /s/Michael J. Seng
UNITED STATES MAGISTRATE JUDGE DEAC _Signature- END:
12eob4
Case 1:13-cv-02104-MJS Document 3 Filed 01/02/14 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caDC-05-01303/USCOURTS-caDC-05-01303-0/pdf.json | [
[
"Association of Oil Pipe Lines",
"Petitioner"
],
[
"Federal Energy Regulatory Commission",
"Respondent"
],
[
"United States of America",
"Respondent"
]
] | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2006 Decided May 29, 2007
No. 04-1102
EXXONMOBIL OIL CORPORATION,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
WESTERN REFINING COMPANY, L.P., ET AL.,
INTERVENORS
Consolidated with
04-1103, 04-1104, 04-1140, 04-1142, 04-1143, 04-1160,
05-1204, 05-1217, 05-1218, 05-1219, 05-1223, 05-1226,
05-1232, 05-1245, 05-1303
______
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Thomas J. Eastment and R. Gordon Gooch argued the cause
for Shipper Petitioners. With them on the briefs were Joshua B.
Frank, Elisabeth R. Myers, George L. Weber, Walter Lowry
Barfield, III., Steven A. Adducci, Richard E. Powers, Jr., Marcus
W. Sisk, Jr., and Frederick G. Jauss IV.
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 1 of 45
2
Charles F. Caldwell and Christopher J. Barr argued the
cause for petitioners SFPP, L.P. and the Association of Oil Pipe
Lines. With them on the briefs were Albert S. Tabor, Jr.,
Catherine O’Harra, Sabina K. Dugal, Steven H. Brose, Timothy
M. Walsh, Daniel J. Poynor, and Michele F. Joy. Erin M.
Murphy,Neil Patten, Judith M. Andrade, Kevin B. Bedell, Glenn
S. Benson, and Michael J. Manning entered appearances.
Lona T. Perry, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were R. Hewitt Pate, Assistant Attorney General, U.S.
Department of Justice, John J. Powers, III., and Robert J.
Wiggers, Attorneys, John S. Moot, General Counsel, Federal
Energy Regulatory Commission, and Robert H. Solomon,
Solicitor. Robert B. Nicholson, Attorney, U.S. Department of
Justice, entered an appearance.
Charles F. Caldwell argued the cause for intervenors SFPP,
L.P. and the Association of Oil Pipe Lines in support of
respondent. With him on the brief were Christopher J. Barr,
Albert S. Tabor, Jr., Catherine O’Harra, Steven H. Brose,
Timothy M. Walsh, and Daniel J. Poynor.
Steven A. Adducci, R.Gordon Gooch, Elisabeth R. Myers,
Marcus W. Sisk, Jr., Frederick G. Jauss IV., and George L.
Weber were on the brief of Shipper Intervenors in support of
respondent with respect to arguments of SFPP, L.P. and the
Association of Oil Pipe Lines.
Before: SENTELLE, GRIFFITH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 2 of 45
3
PER CURIAM: SFPP, L.P., operates pipelines that transport
petroleum products through Arizona, California, Nevada, New
Mexico, Oregon, and Texas. This case is the latest chapter in a
long-running dispute over SFPP’s tariffs.
The consolidated petitions for review challenge three orders
of the Federal Energy Regulatory Commission (“FERC”):
1. ARCO Products Co. v. SFPP, L.P., 92 FERC ¶ 61,244
(2000) (“Order Consolidating Proceedings”);
2. ARCO Products Co. v. SFPP, L.P., 106 FERC ¶ 61,300
(2004) (“Order on Initial Decision”); and
3. SFPP, L.P., 111 FERC ¶ 61,334 (2005) (“Remand
Order”).
Several shippers – i.e., firms that pay to transport petroleum
products over SFPP’s pipelines – seek review of these three
orders. The shipper petitioners are BP West Coast Products,
Chevron Products, ConocoPhillips, ExxonMobil Oil, Navajo
Refining, Ultramar, Valero Marketing and Supply, and Western
Refining. The shippers raise several challenges to the
Commission’s orders. In particular, they argue that: (1) the
Commission unlawfully granted an income tax allowance to
SFPP; (2) the Commission applied the wrong standard and
relied upon faulty data in its analysis of whether SFPP’s rates
should be “de-grandfathered” under the Energy Policy Act of
1992; and (3) the Commission erroneously held that certain
shippers were not entitled to reparations for rates charged on
SFPP’s East Line after August 1, 2000. SFPP and the
Association of Oil Pipe Lines have intervened on behalf of the
Commission with respect to these issues.
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 3 of 45
4
SFPP and the Association of Oil Pipe Lines have also crosspetitioned for review of the three challenged orders. They argue
that the Commission incorrectly interpreted the Energy Policy
Act and made several computational errors in determining
whether SFPP’s rates should be de-grandfathered. The shippers
have intervened on behalf of the Commission regarding these
issues.
We deny the petitions for review with respect to the income
tax allowance issues and the Energy Policy Act issues. We hold
that the Commission’s income tax allowance policy was not
arbitrary or capricious or contrary to law. We also hold that
FERC’s interpretation of the Energy Policy Act was reasonable.
We need not consider several of the arguments raised by SFPP
and the shippers regarding FERC’s calculations because the
parties failed to raise those arguments before the Commission in
the first instance. However, we grant the shippers’ petition for
review with respect to the reparations issue. FERC acted
contrary to law when it held that the Arizona Grocery doctrine
precluded the Commission from awarding reparations to East
Line shippers for rates paid after August 1, 2000.
I. FERC’S INCOME TAX ALLOWANCE POLICY
The first issue in these petitions for review is whether it was
lawful for FERC to grant an income tax allowance to pipelines
operating as limited partnerships. In the Remand Order, FERC
held that SFPP is entitled to an income tax allowance to the
extent that its partners incur “actual or potential income tax
liability” on the income they receive from the partnership.
SFPP, L.P., 111 FERC ¶ 61,334 at 62,456 (2005). The shipper
petitioners contend that this order is arbitrary and capricious and
contrary to our decision in BP West Coast Products, LLC v.
FERC, 374 F.3d 1263 (D.C. Cir. 2004), because it grants a tax
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5
allowance to entities that do not actually pay income taxes.
While we agree that the orders under review and the policy
statement upon which they are based incorporate some of the
troubling elements of the phantom tax we disallowed in BP West
Coast, FERC has justified its new policy with reasoning
sufficient to survive our review. We therefore deny the petitions
for review with respect to this issue.
A.
FERC’s income tax allowance (“ITA”) policy for pipelines
that operate as limited partnerships has a tortuous history. In
1995, the Commission adopted the “Lakehead policy,” under
which pipelines’ ITA eligibility turned on whether the partners
were corporations or individuals. Lakehead Pipe Line Co., 71
FERC ¶ 61,338 at 62,313-15 (1995). In Lakehead, FERC held
that a pipeline was entitled to an ITA only for income taxes that
were “attributable to its corporate partners.” Id. at 62,314. The
Commission reasoned:
When partnership interests are held by corporations, the
partnership is entitled to a tax allowance in its cost-ofservice for those corporate interests because the tax cost
will be passed on to the corporate owners who must pay
corporate income taxes on their allocated share of income
directly on their tax returns. The partnership is in essence
a division of each of its corporate partners because the
partnership functions as a conduit for income tax purposes.
Id. at 62,314-15. In contrast, FERC held that pipelines were not
entitled to an ITA with respect to income attributable to
partnership interests held by individuals because “those
individuals do not pay a corporate income tax.” Id. at 62,315.
The Commission noted that its holding “comports with the
principle that there should not be an element in the cost-ofUSCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 5 of 45
6
service to cover costs that are not incurred.” Id.
In the Opinion No. 435 proceedings, FERC applied the
Lakehead policy to SFPP’s rates, holding that SFPP could
include an income tax allowance in its cost-of-service for the
share of the partnership’s income that was attributable to
corporate partners. SFPP, L.P., 86 FERC ¶ 61,022 at 61,102-04
(1999). Several parties petitioned for review of this order. The
shipper petitioners argued – as they do in the instant case – that
SFPP should not be entitled to any income tax allowance
because it is a limited partnership that pays no income tax at the
entity level. In contrast, SFPP argued that it should have been
granted a full income tax allowance, even on the share of
income attributable to non-corporate partners.
In BP West Coast, we granted the shippers’ petition for
review and vacated the income tax allowance provisions of
Opinion No. 435. 374 F.3d at 1285-93. We held that:
[T]he Commission’s opinions in Lakehead do not evidence
reasoned decisionmaking for their inclusion in cost of
service of corporate tax allowances for corporate unit
holders, but denial of individual tax allowances reflecting
the liability of individual unit holders.
Id. at 1290. In other words, the Commission did not reasonably
explain why corporate partners and individual partners were
treated differently under the Lakehead policy. Id. at 1288-90.
We acknowledged that corporate income is taxed twice – while
other income is taxed only once – but we emphasized that this
discrepancy is simply “a product of the corporate form.” Id. at
1290-91. FERC may not attempt to compensate for the double
taxation of corporations by creating a “phantom” tax allowance.
As we explained:
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7
[W]here there is no tax generated by the regulated entity,
either standing alone or as part of a consolidated corporate
group, the regulator cannot create a phantom tax in order to
create an allowance to pass through to the rate payer.
Id. at 1291. Income tax costs are “no different” than any other
costs, such as bookkeeping expenses. Id. We noted that just as
a pipeline does not receive an allowance for the bookkeeping
costs of its investors, neither may it receive an allowance for
income taxes paid by “corporate unit holders” (i.e., investors).
Id. In sum, our per curiam decision in BP West Coast vacated
FERC’s Lakehead policy because the Commission did not
provide a reasoned explanation for distinguishing between
individual and corporate partners, and because the Commission
appeared to be granting income tax allowances to regulated
entities that did not actually pay income taxes.
In response to our decision in BP West Coast, the
Commission issued a notice of inquiry seeking comments from
interested parties on the question when, if ever, it is appropriate
to provide an income tax allowance for partnerships or similar
pass-through entities that hold interests in a regulated public
utility. Inquiry Regarding Income Tax Allowances; Request for
Comments, 69 Fed. Reg. 72,188 (Dec. 13, 2004). On May 4,
2005, the Commission issued a policy statement that provided
guidance about how it planned to address the ITA issue going
forward. Policy Statement on Income Tax Allowances, 111
FERC ¶ 61,139 (2005) (“Policy Statement”). In the Policy
Statement, the Commission concluded that “such an allowance
should be permitted on all partnership interests, or similar legal
interests, if the owner of that interest has an actual or potential
income tax liability on the public utility income earned through
the interest.” Id. at 61,736. In response to its request for
comments, the Commission received 42 responses. Id. at
61,737. After review of the comments, the Commission
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8
determined that it should choose one of four possible
approaches:
(1) provide an income tax allowance only to corporations,
but not partnerships; (2) give an income tax allowance to
both corporations and partnerships; (3) permit an allowance
for partnerships owned only by corporations; and (4)
eliminate all income tax allowances and set rates based on
a pre-tax rate of return.
Id. at 61,741. The Commission ultimately selected the second
option, stating that it would “permit an income tax allowance for
all entities or individuals owning public utility assets, provided
that an entity or individual has an actual or potential income tax
liability to be paid on that income from those assets.” Id. After
weighing the relevant policy concerns, FERC concluded that
this policy “serves the public because it allows rate recovery of
the income tax liability attributable to regulated utility income,
facilitates investment in public utility assets, and assures just
and reasonable rates.” Id. at 61,736.
The Commission applied its new policy and reiterated its
reasoning in the Remand Order. 111 FERC at 62,454-56. In
that order, FERC ruled that SFPP was entitled to an ITA to the
extent that the pipeline’s partners – both individual and
corporate – paid taxes on the income they received from the
partnership. Id. at 62,455-56. The Commission acknowledged
that “the pass-through entity does not itself pay income taxes,”
but nonetheless granted the ITA because “the owners of a passthrough entity pay income taxes on the utility income generated
by the assets they own via the device of the pass-through entity.”
Id. at 62,455. FERC reasoned that:
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9
[J]ust as a corporation has an actual or potential income tax
liability on income from the public utility assets it controls,
so do the owners of a partnership or limited liability
corporation (LLC) on the assets and income that they
control by means of the pass-through entity.
Id. Thus, the Commission concluded that “SFPP, L.P. should be
afforded an income tax allowance on all of its partnership
interests to the extent that the owners of those interests had an
actual or potential income tax liability during the periods at
issue.” Id. at 62,456.
ExxonMobil Oil, BP West Coast Products, Navajo Refining
Company, and other shippers have petitioned for review of the
Remand Order, arguing that FERC’s decision to grant SFPP an
income tax allowance was arbitrary and capricious and contrary
to our decision in BP West Coast. The Policy Statement is not
directly challenged in these petitions for review. However, in
the Remand Order – which is challenged in the instant case – the
Commission expressly relied upon the conclusions and
reasoning of the Policy Statement. See 111 FERC at 62,456
(“Given the Commission’s Policy Statement and the application
of its policy in this opinion, the Commission concludes that
SFPP, L.P. should be afforded an income tax allowance . . . .”).
Thus, in determining whether the Remand Order was arbitrary
and capricious or contrary to BP West Coast, we necessarily
review the Commission’s conclusions and reasoning in the
Policy Statement.
B.
In the Remand Order, FERC resolved the principal defect
of the Lakehead policy, which was the inadequately explained
differential treatment of the tax liability of individual and
corporate partners. The Commission concluded that regulated
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10
pipelines operating as limited partnerships should be eligible for
income tax allowances to the extent that all partners incur actual
or potential tax liability on the income they receive from the
partnership. FERC’s explanation in support of this policy
choice is reasonable, and the Commission’s Remand Order is
not inconsistent with BP West Coast. Accordingly, we deny the
petitions for review with respect to this issue.
We review the Commission’s ratemaking decisions under
the “arbitrary and capricious” standard. Ass’n of Oil Pipe Lines
v. FERC, 83 F.3d 1424, 1431 (D.C. Cir. 1996) (“AOPL”).
Under this test, FERC’s decisions will be upheld as long as the
Commission has examined the relevant data and articulated a
rational connection between the facts found and the choice
made. Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). In other words, the
Commission must “cogently explain why it has exercised its
discretion in [the] given manner.” Exxon Corp. v. FERC, 206
F.3d 47, 54 (D.C. Cir. 2000) (internal quotation marks omitted)
(alteration in original). In reviewing FERC’s orders, we are
“particularly deferential to the Commission’s expertise” with
respect to ratemaking issues. AOPL, 83 F.3d at 1431; see also
FPC v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944) (noting
that a party challenging a natural gas rate order “carries the
heavy burden of making a convincing showing that it is invalid
because it is unjust and unreasonable”).
The Commission must ensure that the rates charged by
jurisdictional pipelines are “just and reasonable.” BP West
Coast, 374 F.3d at 1286 (citation omitted). We have held that
“just and reasonable” rates are “rates yielding sufficient revenue
to cover all proper costs, including federal income taxes, plus a
specified return on invested capital.” City of Charlottesville v.
FERC, 774 F.2d 1205, 1207 (D.C. Cir. 1985). Of course, this
canonical principle of ratemaking begs the question of which
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11
costs are “proper.” In the challenged Remand Order, FERC
concluded that it was proper to grant SFPP an income tax
allowance to the extent that its partners – both individual and
corporate – incurred actual or potential tax liability on their
distributive share of the partnership income. In light of the
deference we extend to the Commission’s judgments regarding
ratemaking issues, we cannot hold that this conclusion was
arbitrary or capricious.
On remand from BP West Coast, the Commission
considered four different options for its income tax allowance
policy. First, the Commission considered – and rejected – a
proposal to adopt a modified version of the Lakehead policy. As
FERC explained in the Policy Statement, “the Commission
agrees with the court’s conclusion in BP West Coast that . . .
Lakehead did not articulate a rational ground for concluding that
there should be no tax allowance on partnership interests owned
by individuals, but that there should be one for partnership
interests owned by corporations.” 111 FERC at 61,743. Given
our holding in BP West Coast, the Commission was certainly
permitted – if not required – to reject the comments that
proposed a modified Lakehead policy. Second, FERC
considered a proposal that would grant income tax allowances
only to partnerships that are “owned wholly by corporations
filing a consolidated return.” Id. at 61,738. FERC reasonably
rejected this for the same reason it rejected the first alternative
– because it found no rational reason for differentiating between
corporate and non-corporate partnership interests. Id. at 61,744.
The two remaining policy options considered by the
Commission were polar opposites. One proposal would have
categorically prohibited limited partnerships from taking income
tax allowances, while the other would have granted partnerships
a full income tax allowance to the extent that the partners incur
actual or potential tax liability. Id. at 61,739-41. The
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12
Commission chose to adopt a policy of full income tax
allowances for limited partnerships, and we cannot conclude that
this choice was unreasonable. Most importantly, FERC
determined that income taxes paid by partners on their
distributive share of the pipeline’s income are “just as much a
cost of acquiring and operating the assets of that entity as if the
utility assets were owned by a corporation.” Id. at 61,742. In
other words, the Commission found no good reason to limit the
income tax allowance to corporations, given that “both partners
and Subchapter C corporations pay income taxes on their first
tier income.” Id. at 61,744.
Moreover, the Commission determined that income taxes
paid on the partners’ distributive share of the pipeline’s income
were properly “attributable” to the regulated entity because such
taxes must be paid regardless of whether the partners actually
receive a cash distribution. See United States v. Basye, 410 U.S.
441, 453 (1973) (“[I]t is axiomatic that each partner must pay
taxes on his distributive share of the partnership’s income
without regard to whether that amount is actually distributed to
him.”). Based on this aspect of partnership law, FERC
concluded that income taxes paid by investors in a limited
partnership are “first-tier” taxes that may be allocated to the
regulated entity’s cost-of-service. The shipper petitioners argue
that these taxes are ultimately paid by individual investors – not
the pipeline – and thus it was improper for FERC to grant an
ITA to the regulated entity. However, the Commission
reasonably addressed this concern, explaining:
Because public utility income of pass-through entities is
attributed directly to the owners of such entities and the
owners have an actual or potential income tax liability on
that income, the Commission concludes that its rationale
here does not violate the court’s concern that the
Commission had created a tax allowance to compensate for
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13
an income tax cost that is not actually paid by the regulated
utility.
Policy Statement, 111 FERC at 61,742.
FERC also emphasized that “the return to the owners of
pass-through entities will be reduced below that of a corporation
investing in the same asset if such entities are not afforded an
income tax allowance on their public utility income.” Id. The
Commission determined that “termination of the allowance
would clearly act as a disincentive for the use of the partnership
format,” because it would lower the returns of partnerships visa-vis corporations, and because it would prevent certain
investors from realizing the benefits of a consolidated income
tax return. Id. We cannot hold that these conclusions were
unreasonable. It has long been established that “the return to the
equity owner should be commensurate with returns on
investments in other enterprises having corresponding risks.”
Hope Natural Gas, 320 U.S. at 603. In the Policy Statement,
FERC concluded that it would be inequitable to grant a full
income tax allowance to corporations while denying a similar
allowance to limited partnerships. 111 FERC at 61,740, 61,742.
For example, if the corporate tax rate is 35%, then a pipeline that
operates as a corporation is permitted to charge a rate of $154 in
order to earn after-tax income of $100. As several commenters
pointed out, “if an income tax allowance is not allowed the
partnership, then the partners must pay a $35 income tax on
$100 of utility income, leaving them with only an after-tax
return of $65.” Id. Based on these comments, the Commission
determined that pipelines operating as limited partnerships
should receive a full income tax allowance in order to maintain
parity with pipelines that operate as corporations. This
conclusion was not unreasonable, and we defer to FERC’s
expert judgment about the best way to equalize after-tax returns
for partnerships and corporations.
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14
In sum, policy choices about ratemaking are the
responsibility of the Commission – not this Court. See AT&T
Corp. v. FCC, 220 F.3d 607, 631 (D.C. Cir. 2000) (noting that
“policy judgment[s]” are “for the agency – not this court – to
make”). Our role as a reviewing court is limited to ensuring that
“the Commission’s decisionmaking is reasoned, principled, and
based upon the record.” So. Cal. Edison Co. v. FERC, 443 F.3d
94, 98 (D.C. Cir. 2006) (quoting Williston Basin Interstate
Pipeline Co. v. FERC, 165 F.3d 54, 60 (D.C. Cir. 1999)). Here,
the conclusions reached in the Policy Statement and the Remand
Order were within the scope of the Commission’s discretion
with respect to ratemaking issues. We held in City of
Charlottesville that regulated entities are entitled to recover all
“proper” costs from their ratepayers. 774 F.2d at 1207.
Obviously, “proper” is not a self-defining term, and the
Commission thus has broad discretion to determine which costs
may be recovered through a pipeline’s rates. Here, FERC has
reasonably explained why income taxes paid on partnership
income are properly allocated to the regulated entity for
ratemaking purposes, and the shipper petitioners have offered no
compelling reason to second-guess the agency’s policy choices.
* * *
Petitioners argue that regardless of whether FERC’s new
ITA policy is reasonable, the Remand Order must be set aside
because it is inconsistent with our opinion in BP West Coast.
We disagree.
At the outset, we note that BP West Coast did not
categorically prohibit the Commission from granting income tax
allowances to pipelines that operate as limited partnerships. We
granted the shippers’ petition for review in that case primarily
because of the Commission’s inadequately justified differential
treatment of individual partners and corporate partners. As we
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15
explained, “the Commission’s opinions in Lakehead do not
evidence reasoned decisionmaking for their inclusion in cost of
service of corporate tax allowances for corporate unit holders,
but denial of individual tax allowances reflecting the liability of
individual unit holders.” BP West Coast, 374 F.3d at 1290. The
Commission has now chosen to treat all income taxes alike,
regardless of whether they are incurred by individual partners or
corporate partners. See Remand Order, 111 FERC at 62,455
(conceding that “Lakehead mistakenly focused on who pays the
taxes rather than on the more fundamental cost allocation
principle of what costs, including tax costs, are attributable to
regulated service, and therefore properly included in a regulated
cost of service”). BP West Coast did not pass upon the specific
question at issue in the instant case – whether FERC may grant
an ITA to limited partnerships for the income taxes paid by all
partners on the income they receive from the partnership. It is
a basic tenet of administrative law that when an agency action
is found to be arbitrary and capricious because of a failure to
exercise reasoned decisionmaking, the agency is free to adopt a
new policy on remand, provided it supplies a reasoned
explanation for its actions. See SEC v. Chenery Corp., 332 U.S.
194, 200-01 (1947) (holding that when a court sets aside an
agency order as “unsupportable for the reasons supplied by that
agency,” the agency is “bound to deal with the problem afresh”
on remand).
Petitioners also argue that limited partnerships do not pay
entity-level income taxes, and thus FERC’s new ITA policy
disregards our statement in BP West Coast that “the regulator
cannot create a phantom tax in order to create an allowance to
pass through to the rate payer.” 374 F.3d at 1291. While not
without force, this argument cannot ultimately prevail, for two
reasons. First, as FERC explained in the Policy Statement and
the Remand Order, the income taxes for which SFPP will
receive an income tax allowance are real, albeit indirect. SFPP
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16
will be eligible for a tax allowance only to the extent it can
demonstrate – in a rate proceeding – that its partners incur
“actual or potential” income tax liability on their respective
shares of the partnership income. Remand Order, 111 FERC at
62,456. Second, when we used the term “phantom tax” in BP
West Coast, we were reviewing a very different set of orders
than the ones at issue here. In BP West Coast, we vacated the
Lakehead policy because the Commission had offered no
reasoning to support its distinction between corporate partners
and individual partners. 374 F.3d at 1290 (“This does not
supply reasoning for differentiating between individual and
corporate tax liability. It is merely restating the proposition that
the Commission is so differentiating.”). However, in the instant
case FERC has gone to great lengths to explain why the taxes in
question are not “phantom” and are properly attributed to the
regulated entity. And there is at least one aspect of partnership
law that supports FERC’s conclusion but was not advanced by
the Commission in BP West Coast – investors in a limited
partnership are required to pay tax on their distributive shares of
the partnership income, even if they do not receive a cash
distribution. See Basye, 410 U.S. at 454. As explained above,
this supports FERC’s determination that taxes on the income
received from a limited partnership should be allocated to the
pipeline and included in the regulated entity’s cost-of-service.
In this sense, petitioners’ likening of partnership tax to
shareholder dividend tax is inapposite because a shareholder of
a corporation is generally taxed on the amount of the cash
dividend actually received. In sum, in the Policy Statement and
the Remand Order, FERC has reasonably explained why its new
ITA policy does not result in the creation of “phantom” tax
liability for regulated pipelines that operate as limited
partnerships. The same cannot be said for the Lakehead policy
that we vacated in BP West Coast.
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Shipper petitioners also emphasize that in BP West Coast
we rejected SFPP’s argument that the Commission should have
adopted a full income tax allowance for limited partnerships.
Petitioners argue that this holding is now the “law of the case,”
because the instant case involves the same issue that was
litigated – and resolved in the shippers’ favor – in the earlier
proceeding. Again, we disagree. In BP West Coast, SFPP
cross-petitioned for review of the Lakehead policy. Like the
shipper petitioners, SFPP argued that the Commission’s
distinction between corporate partners and individual partners
was unsupportable. 374 F.3d at 1291. However, while the
shipper petitioners argued that FERC should not have permitted
any income tax allowance, SFPP argued that FERC should have
granted a full ITA to pipelines operating as limited partnerships.
We rejected SFPP’s argument in BP West Coast, but petitioners
now read too much into our holding with respect to this issue.
All we held in BP West Coast is that the Commission was not
required to grant a full income tax allowance to pipelines that
operate as limited partnerships. Petitioners’ argument assumes
that “not required” is synonymous with “prohibited.” To the
contrary, when an agency has broad discretion to choose among
different policy options, the fact that any one option is not
required certainly does not mean that it is prohibited. Arguably,
a fair return on equity might have been afforded if FERC had
chosen the fourth alternative of computing return on pretax
income and providing no tax allowance at all for the pipeline
owners. This, however, is a policy decision rejected by FERC.
As we noted above, policy decisions are for the Commission and
not the court.
* * *
In conclusion, we deny the petitions for review with respect
to the income tax allowance issue. Under the arbitrary and
capricious test, our standard of review is “only reasonableness,
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18
not perfection.” Kennecott Greens Creek Min. Co. v. MSHA,
476 F.3d 946, 954 (D.C. Cir. 2007). We need not decide
whether the Commission has adopted the best possible policy as
long as the agency has acted within the scope of its discretion
and reasonably explained its actions. In the Policy Statement
and the Remand Order, the Commission resolved the principal
defect of the Lakehead policy, which was the unexplained
differential treatment of individual and corporate partners.
FERC then determined that it would be “just and reasonable” to
grant regulated pipelines an income tax allowance to the extent
that all of the pipeline’s partners – whether individual or
corporate – incur actual or potential tax liability. The
Commission reasonably determined that such taxes are
“attributable” to the regulated entity, given that partners must
pay tax on their share of the partnership income regardless of
whether they actually receive a cash distribution. Additionally,
the Commission reasonably relied upon evidence that a full
income tax allowance is necessary to ensure that corporations
and partnerships of like risk will earn comparable after-tax
returns. Lastly, in the income tax allowance Policy Statement,
FERC explained in detail why it chose to reject the other three
policy options proposed by commenters. We cannot hold that
the Commission’s policy choices were arbitrary and capricious.
Accordingly, we deny the petitions for review with respect to
this issue.
II. ENERGY POLICY ACT ISSUES
Both sets of petitioners argue that FERC misinterpreted §
1803 of the Energy Policy Act of 1992. This provision
grandfathers certain oil pipeline rates as they existed at the time
of the Act’s enactment. Under this statute, shippers can
challenge these grandfathered rates when “a substantial change
has occurred after the date of the enactment of [the EPAct] . . .
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1
As a result, the older version of the ICA was reprinted in the
appendix to Title 49 of the United States Code. Because newer
editions of the Code do not include the ICA, however, all citations to
the ICA in this opinion refer to the 1988 U.S. Code.
in the economic circumstances of the oil pipeline which were a
basis for the rate.” FERC interpreted § 1803 to allow rate
challenges when there has been a substantial change in a
pipeline’s overall rate of return. Shipper petitioners argue that
this interpretation grandfathers too many rates; they contend that
a substantial change in any one cost element, even if offset by
other changes such that the overall rate of return is unaffected,
subjects a rate to challenge under § 1803. From the other
direction, pipeline petitioners contend that FERC’s
interpretation grandfathers too few rates; they argue that the
correct standard should take account of factors in addition to a
pipeline’s costs. FERC has rejected the diametrically opposed
arguments of the petitioners and interpreted the statutory text to
establish a middle ground between those two competing
positions. We hold that FERC’s interpretation is reasonable.
A.
Federal regulation of oil pipelines began in 1906, when
Congress passed the Hepburn Act. That statute applied the
Interstate Commerce Act (ICA) to oil pipelines and gave the
Interstate Commerce Commission jurisdiction over the
pipelines. Pub. L. No. 59-337, § 1, 34 Stat. 584, 584. In 1977,
Congress transferred responsibility for oil pipeline regulation to
the newly created FERC. Department of Energy Reorganization
Act, Pub. L. No. 95-91, § 402(b), 91 Stat. 565, 584. The
following year, Congress comprehensively revised the ICA but
provided that its 1977 provisions would continue to govern
FERC’s regulation of oil pipelines.1
Act of Oct. 17, 1978, Pub
L. No. 95-473, § 4(c), 92 Stat. 1337, 1470.
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The ICA prohibits pipelines from charging rates that are
“unjust or unreasonable” and permits shippers to challenge both
pre-existing and newly filed rates. 49 U.S.C. app. §§ 13(1),
15(1), (7). FERC has generally approved just and reasonable
rates based primarily on a pipeline’s costs. See Frontier
Pipeline Co. v. FERC, 452 F.3d 774, 776 (D.C. Cir. 2006)
(citing Ass’n of Oil Pipe Lines v. FERC, 83 F.3d 1424, 1428-29
(D.C. Cir. 1996); Farmers Union Cent. Exch. v. FERC, 734 F.2d
1486, 1495-96 (D.C. Cir. 1984); Farmers Union Cent. Exch. v.
FERC, 584 F.2d 408, 412-22 (D.C. Cir. 1978)). In Opinion No.
154-B, issued in 1985, FERC adopted the “trended original cost”
(or “TOC”) method for ratemaking, in which asset depreciation
and equity recovery are smoothed out over the lifetime of a
pipeline in order to avoid excessively high rates at the front end,
thereby encouraging new market entrants. See Williams Pipe
Line Co., 31 FERC ¶ 61,377 at 61,833 (1985); BP West Coast
Prods., LLC v. FERC, 374 F.3d 1263, 1282-83 (D.C. Cir. 2004).
In 1992, Congress enacted the Energy Policy Act (EPAct).
Pub. L. No. 102-486, 106 Stat. 2776. In Title 18 of that Act,
called “Oil Pipeline Regulatory Reform,” Congress sought to
simplify ratemaking procedures for oil pipelines; this would
reduce administrative and litigation costs for pipelines and
shippers. See id. at 3010-12 (codified at 42 U.S.C. § 7172 note);
Ass’n of Oil Pipe Lines v. FERC, 83 F.3d 1424, 1429 (D.C. Cir.
1996). Section 1801 of the EPAct directed FERC to “issue a
final rule which establishes a simplified and generally applicable
ratemaking methodology for oil pipelines” within one year of
the passage of the Act. 106 Stat. at 3010. Section 1802 required
FERC to “issue a final rule to streamline procedures . . . relating
to oil pipeline rates in order to avoid unnecessary regulatory
costs and delays” within 18 months. Id. The goal of these
provisions was to decrease the costs associated with
administrative proceedings and litigation involving oil pipeline
rates.
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FERC implemented those mandates in Order No. 561 by
establishing an indexed cap system, in which the maximum
permissible rates for pipelines are adjusted annually to reflect
predictions of industry-wide changes in costs. See Revisions to
Oil Pipeline Regulations Pursuant to the Energy Policy Act of
1992, Order No. 561, FERC Stats. & Regs. ¶ 30,985, 58 Fed.
Reg. 58,753 (1993); Order No. 561-A, FERC Stats. & Regs. ¶
31,000, 59 Fed. Reg. 40,243 (1994). A pipeline may charge a
rate above the applicable cap only if there is a “substantial
divergence” between the cap and its actual costs, if it shows that
it lacks “significant market power,” or if all of its customers
consent. 18 C.F.R. § 342.4.
We upheld this scheme in Association of Oil Pipe Lines v.
FERC. 83 F.3d at 1428. We have explained that the primary
benefits of the cap system are that it “dispenses with intricate
calculations of specific pipeline costs” and encourages pipelines
to develop “cost-reducing innovations” because any given
pipeline’s cost-cutting is unlikely to affect the industry-wide
cap. Frontier Pipeline Co., 452 F.3d at 777.
In keeping with its general purpose to reduce costs from
administrative proceedings and litigation associated with the
regulation of oil pipelines, the EPAct also includes a
“grandfathering” provision that insulates certain pre-existing
pipeline rates from challenge even if the rates exceed the
appropriate indexed cap. Section 1803(a) provides that any rate
in effect for the full year ending on the date of the enactment of
the EPAct (October 24, 1992) is just and reasonable unless it
had been subject to protest, investigation, or complaint during
that one-year period. Under § 1803(b), a grandfathered rate can
be challenged as not just and reasonable – “de-grandfathered” –
if “evidence is presented to the Commission which establishes
that a substantial change has occurred after the date of the
enactment of this Act – (A) in the economic circumstances of
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22
the oil pipeline which were a basis for the rate; or (B) in the
nature of the services provided which were a basis for the rate”
(emphasis added). Thus, under § 1803, “the analysis of a
pipeline rate challenge . . . proceeds in two steps: first, FERC
determines whether the rate in question is grandfathered; if it is,
FERC then asks whether the rate falls within either of the
exceptions outlined in Section 1803(b).” BP West Coast, 374
F.3d at 1272.
The background to this litigation is complex. Since the
EPAct went into effect in 1992, shippers have asked FERC to
declare that SFPP’s lines either did not qualify for
grandfathering or should be de-grandfathered due to
substantially changed circumstances.
Docket No. OR92-8 (1992-1995). In Docket No. OR92-8,
addressing complaints filed between 1992 and August 1995,
FERC determined that SFPP’s West Line rates were (with one
exception) grandfathered, but that its East Line rates were not.
SFPP, L.P., Opinion No. 435-A, 91 FERC ¶ 61,135 at 61,499
(2000); BP West Coast, 374 F.3d at 1281. We affirmed FERC’s
conclusion with respect to the West Line in BP West Coast
Products, LLC v. FERC (the East Line analysis was not
challenged). 374 F.3d at 1278, 1282. In that same docket,
FERC also determined that the West Line had not experienced
substantially changed circumstances necessary to de-grandfather
its rates, despite the fact that FERC’s new Lakehead policy had
altered the income tax allowances SFPP could include in its
rates. See Lakehead Pipe Line Co., L.P., 71 FERC ¶ 61,338
(1995); Opinion No. 435-A, 91 FERC at 61,499; BP West Coast,
374 F.3d at 1280. In BP West Coast, we did not need to reach
the question of substantially changed circumstances on the West
Line because we held that the Lakehead policy itself was
defective. 374 F.3d at 1280. We therefore remanded the issue
to FERC.
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Docket No. OR96-2 (1995-2000). While the BP West Coast
appeal was pending, FERC consolidated in Docket No. OR96-2
shipper complaints filed between August 1995 and August 2000.
In March 2004, three months before we announced our decision
in BP West Coast, FERC held that the West Line had
experienced substantially changed circumstances and thus its
rates were de-grandfathered. ARCO Prods. Co. v. SFPP, L.P.,
106 FERC ¶ 61,300 at 62,148 (2004) (“Order on Initial
Decision”). In the same order, FERC held that SFPP’s North
and Oregon Lines had not experienced substantially changed
circumstances, reversing an ALJ decision to the contrary. Id. at
62,153. FERC explained that the ALJ had wrongly found
substantially changed circumstances solely because SFPP’s tax
allowance – only one factor in its total costs – had changed due
to the Lakehead policy. Id. at 62,144. Instead, the Commission
explained, the ALJ should have considered whether SFPP’s total
costs on those lines had substantially changed. Id. In other
words, even if SFPP’s tax liability had significantly decreased,
if its overall cost of service remained roughly the same due to
other cost increases, there would not be substantially changed
circumstances. FERC analyzed the change in total costs on the
West, North, and Oregon Lines, and found that only the West
Line had experienced substantially changed circumstances. Id.
at 62,148-50.
June 2005 Remand Order. In June 2005, eleven months
after our remand order in BP West Coast, FERC issued an order
that served both as a remand order from BP West Coast
(addressing Docket No. OR92-8) and as a decision on appeal in
Docket No. OR96-2. SFPP, L.P., 111 FERC ¶ 61,334 (2005)
(“Remand Order”). In that order, FERC re-calculated whether
there had been substantially changed circumstances on SFPP’s
lines in light of its new adoption of a full income tax allowance
policy (see Part I above). After making these calculations,
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FERC reaffirmed its determinations that the West Line was
de-grandfathered but that the North and Oregon Lines were not.
Id. at 62,458-59.
Both SFPP (with the Association of Oil Pipe Lines) and its
shippers petitioned this Court for review, each believing that the
Commission’s standard for determining substantially changed
circumstances is incorrect. Both sets of petitioners also allege
in their petitions that FERC erred in some of its calculations for
determining whether SFPP’s lines had experienced substantially
changed circumstances. We have jurisdiction under 49 U.S.C.
app. § 17(10) (1988).
B.
Both sets of petitioners challenge FERC’s interpretation of
the statutory phrase “a substantial change has occurred after the
date of the enactment of this Act . . . in the economic
circumstances of the oil pipeline which were a basis for the
rate.” FERC interpreted that phrase to mean a change in a
pipeline’s total cost of service. Remand Order, 111 FERC at
62,458-59. The shippers believe that the phrase must mean that
any substantial change in one rate element – for example, a
pipeline’s tax allowance – suffices to de-grandfather the rate,
even if that change is offset by another change, such that there
is virtually no change in the pipeline’s overall cost of service.
For their part, SFPP and the Association of Oil Pipe Lines
believe that the phrase must be interpreted to encompass factors
in addition to a pipeline’s cost of service because many pipelines
did not set the rates initially under the current cost-of-service
method. For example, FERC approved some pipeline rates on
the basis that a pipeline faced competition sufficient to allow the
market, rather than a cost-of-service formula, to determine the
rates.
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Because Congress authorized FERC to adjudicate
complaints arising out of § 1803, the Commission’s
interpretation of § 1803 in an adjudication is entitled to Chevron
deference. BP West Coast, 374 F.3d at 1272-73.
FERC interprets the phrase “a substantial change has
occurred after the date of the enactment of this Act . . . in the
economic circumstances of the oil pipeline which were a basis
for the rate” as requiring a substantial change in the overall rate
of return of the pipeline, rather than in one cost element, such as
a tax allowance. That is because, as the Commission explained,
“there can be a very large reduction in income tax allowance . . .
even if many of the other principal cost factors, and in fact the
total cost-of-service, increased.” Order on Initial Decision, 106
FERC at 62,144. In other words, it makes little sense to
de-grandfather a rate when the pipeline is no more profitable –
or perhaps even less profitable – than it was when the rate was
grandfathered.
FERC’s interpretation easily fits within the bounds of the
statutory text. The word “circumstances” plausibly invokes a
composite of several variables. One definition of
“circumstances” is “the total complex of essential attributes and
attendant adjuncts of a fact or action: the sum of essential and
environmental characteristics.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 410 (1976). Another is “the
logical surroundings or ‘adjuncts’ of an action; the time, place,
manner, cause, occasion, etc., amid which it takes place.” 3
OXFORD ENGLISH DICTIONARY 241 (2d ed. 1989). When
modified by the word “economic,” the word “circumstances”
could reasonably mean the total economic outlook of a pipeline
– its profitability. In that case, it would be a change only in that
overall picture, rather than in any individual part of that picture,
that would constitute a change in “economic circumstances.” A
straightforward reading of the statutory text, therefore,
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26
substantially validates FERC’s interpretation.
Moreover, FERC’s reading meshes with the purpose of the
EPAct, as gleaned from its text and structure. The
grandfathering provision of § 1803 is intended to insulate
pre-existing rates from attack by ordaining them to be
necessarily “just and reasonable.” The most natural
understanding of § 1803 is that Congress believed that the
then-existing rates of return were not so large as to justify the
added litigation costs of subjecting the rates to agency
evaluation and judicial review. This inference comports with
the streamlining goals of § 1801 and § 1802. It makes good
sense, then, to de-grandfather rates only when the rate of return
itself has changed. It is unclear why Congress would care if the
underlying composition of a pipeline’s costs has changed so
long as the pipeline’s rate of return has remained constant or
decreased.
The shippers focus on a different word in § 1803: the
indefinite article “a” before the phrases “substantial change” and
“basis for the rate.” They claim that the presence of the singular
indefinite article indicates that any substantial change in a single
cost element must qualify as a substantial change in economic
circumstances, even if that change is offset by other changes
such that the pipeline’s overall return is unaffected. We
disagree that such an interpretation is required by the text.
FERC could reasonably conclude that the phrase “a substantial
change . . . in the economic circumstances” means a change in
the overall economic circumstances, not a change in one
economic circumstance. And the phrase “a basis for the rate”
indicates nothing more than the fact that there are other bases for
a rate besides a pipeline’s economic circumstances. The EPAct
even identifies another basis for a rate: “the nature of services
provided.” EPAct, § 1803(b)(1)(B). Neither use of the
indefinite article undermines the reasonable inference that the
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term “economic circumstances” refers to a composite of several
variables rather than any individual variable – which might be
the case if, for instance, the statute said “an economic
circumstance.”
The shippers also contend that the Order on Initial Decision
unreasonably departed from FERC’s precedent in Opinion No.
435. Of course, FERC may not depart from its own precedent
without a reasoned explanation. See Dominion Res., Inc. v.
FERC, 286 F.3d 586, 592 (D.C. Cir. 2002). In Opinion No. 435,
FERC wrote that a substantial change “could be established by
one or a number of rate elements” and that it is unnecessary to
“establish that there has been a substantial change to every rate
design element.” 86 FERC ¶ 61,022 at 61,066 (1999). The
shippers believe this means that FERC concluded that a change
in a single cost element – even absent a change in the overall
rate of return – would qualify as a change in economic
circumstances. It is doubtful, however, that FERC was
considering the possibility that two or more changes could offset
each other, which would explain why FERC discussed changes
in terms of a single rate element. Nowhere in Opinion No. 435
does FERC mention the possibility of offsetting. In the Order
on Initial Decision, in contrast, FERC became aware that using
single cost factors “could lead to anomalous results and result
[in] a threshold that does not adequately discourage challenges
to grandfathered oil pipeline rates.” 106 FERC at 62,151. The
Commission therefore explained that offsetting changes would
not count as changes in economic circumstances. See Remand
Order, 111 FERC at 62,458-59. This decision does not appear
to be a departure from precedent at all, but rather a clarification
of an issue that was not on the Commission’s radar at the time
of Opinion No. 435.
The shippers also argue that FERC inexplicably ascribes a
different quantitative level to the word “substantial” in
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determining substantially changed circumstances under § 1803
than it does in determining whether a pipeline’s costs have
increased so much that the pipeline may charge a rate exceeding
the appropriate index level. In the de-grandfathering context,
the word “substantial” connotes a greater percentage change it
does in the indexing context. See Texaco Refining & Marketing,
Inc., 103 FERC ¶ 63,055 at 65,151 n.29 (2003); FERC
Supplemental Br. at 36-37. Even assuming this argument is not
waived (as it is unclear where in the record the petitioners raised
this point), it has no merit. The two regulatory contexts that the
shippers seek to equate – de-grandfathering and indexing –
implicate different regulatory interests. With indexing, FERC
must ensure that pipelines can survive economically by
recovering their costs. Even a small divergence between the
index level and actual costs might thwart this goal. In contrast,
in fleshing out the de-grandfathering standard under § 1803,
FERC is attempting to determine when a pipeline’s costs
diverge so much from those of the original rates that the benefits
of grandfathering (e.g., less litigation, more certainty) no longer
outweigh the costs to consumers. It is hardly irrational to
ascribe different meanings to the general term “substantial” in
those very different contexts.
Coming from the other direction, SFPP and the Association
of Oil Pipe Lines argue that FERC’s approach does not provide
enough protection to grandfathered rates. They argue that
because many of the grandfathered rates were not established
using a cost-of-service method, that method was not a “basis”
for those rates, and that therefore it is improper to
de-grandfather a rate based simply on a change in its cost of
service. SFPP points out that “[m]any rates were effectively set
according to the informal consent or formal agreement of the
shippers.” SFPP’s Br. at 36. Even rates that were computed
through a cost-of-service method often utilized formulas
different from the current method – for example, without the
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income tax allowance. Moreover, beginning in the late 1980’s,
FERC offered pipelines a market-based alternative to the
cost-of-service method if they could demonstrate that they did
not possess significant market power.
A flaw in SFPP’s argument, so FERC could reasonably
conclude, is that § 1803 does not necessarily depend on the
method used to compute the grandfathered rate. Rather, § 1803
assumes that the “economic circumstances” of a pipeline were
a basis for its rate, regardless of how the rate was actually
established. It is certainly reasonable for FERC to use a
cost-of-service computation as an approximation for a pipeline’s
economic circumstances; the purpose of a cost-of-service rate,
after all, is to simulate what a pipeline’s economic behavior
would be in a competitive market. Merely because some
grandfathered rates were set according to non-regulated
agreements with shippers does not mean that the pipeline’s costs
did not indirectly influence the rate. Consequently, FERC’s
choice appears to be a perfectly reasonable means of interpreting
and applying § 1803.
C.
Both the shipper and pipeline petitioners raise a number of
technical challenges to the method by which FERC calculated
whether SFPP’s West, North, and Oregon lines had experienced
substantially changed circumstances: (1) The shippers argue
that FERC erred in using volumes as a proxy for revenues. (2)
The shippers argue that FERC should have apportioned costs
among different delivery points on the West Line. (3) The
shippers argue that FERC incorrectly determined that SFPP’s
North and Oregon Lines had not experienced substantially
changed circumstances because FERC employed an
inappropriate cost-of-service method. (4) SFPP and the
Association of Oil Pipe Lines argue that the figure FERC used
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for 1992 costs is erroneous. (5) SFPP and the Association of Oil
Pipe Lines argue that FERC made an arithmetic error in
summing percentages of changes in rate elements to compute
the total change in return. Petitioners failed, however, to raise
any of those challenges in the proceedings before the
Commission.
A party must first raise an issue with an agency before
seeking judicial review. United States v. L.A. Tucker Truck
Lines, Inc., 344 U.S. 33, 36-37 (1952). This requirement serves
at least two purposes. It ensures “simple fairness” to the agency
and other affected litigants. It also provides this Court with a
record to evaluate complex regulatory issues; after all, the scope
of judicial review under the APA would be significantly
expanded if courts were to adjudicate administrative action
without the benefit of a full airing of the issues before the
agency. See Advocates for Highway & Auto Safety v. Fed.
Motor Carrier Safety Admin., 429 F.3d 1136, 1150 (D.C. Cir.
2005).
Petitioners believe that the absence of a rehearing
requirement in the ICA means that they were not required to
raise their complaints with FERC. Compare 49 U.S.C. app. §
17(9)(h) (1988) (Interstate Commerce Act) with 15 U.S.C. §
717r(b) (Natural Gas Act) and 16 U.S.C. § 825l(b) (Federal
Power Act). Petitioners miss the point: Their error was not
failing to seek rehearing, but rather failing to raise the issue at
all. See Sims v. Apfel, 530 U.S. 103, 108-110 (2000); L.A.
Tucker Truck Lines, Inc., 344 U.S. at 36-37; Hormel v.
Helvering, 312 U.S. 552, 556 (1941); Frontier Pipeline Co., 452
F.3d at 793; cf. 47 U.S.C. § 405(a) (“The filing of a petition for
reconsideration shall not be a condition precedent to judicial
review of [an FCC decision] except where the party seeking
such review . . . relies on questions of law or fact upon which
the Commission . . . has been afforded no opportunity to pass.”).
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We need not consider the merits of those arguments because
none of them was raised below.
D.
In sum, we hold that FERC’s interpretation of § 1803 as
requiring a substantial change in a pipeline’s cost of service is
a reasonable interpretation of the statute. We need not address
the petitioners’ challenges to FERC’s technical calculations
because those arguments were not raised before the
Commission.
III. REPARATIONS
Shipper petitioners also challenge the Commission’s denial
of their claim for reparations for the service rates they have paid
to use SFPP’s East Line since August 1, 2000. The ICA permits
reparations for successful challenges to the justness and
reasonableness of existing rates, see 49 U.S.C. app. § 16(3)
(1988). If the Commission determines that the pipeline rates are
not “just and reasonable,” shippers who file complaints – and
only those shippers – are entitled to the difference between the
rates they paid and the rates the Commission retrospectively
determines to be just and reasonable. Id. The period for
potential reparations generally includes two years prior to the
filing date of the complaint. See id.; BP West Coast, 374 F.3d
at 1305-06.
In this case, the Commission determined that reparations
were not warranted for the challenged rates that went into effect
on August 1, 2000 because (1) they were proposed by SFPP in
response to a FERC order, (2) FERC had accepted them (albeit
on an interim basis), and (3) at the time the rates were accepted,
FERC explicitly recognized shippers’ right to appropriate
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refunds pending the Commission’s finalization of just and
reasonable rates. Because reparations are precluded where the
Commission has “approved or prescribed” a reasonable rate, see
Arizona Grocery Co. v. Atchison, T. & S. F. Ry. Co., 284 U.S.
370 (1932), FERC argued that shippers were not entitled to
reparations for these rates. In challenging the Commission’s
ruling, shippers argue, inter alia, that Arizona Grocery does not
apply because the final rate has not been prescribed even as of
the time briefs were filed and argument was made to this Court.
The Commission and intervenors respond that this Court in BP
West Coast affirmed an earlier Commission ruling that upon
completion of refund calculations, the East Line’s rates are
considered final and effective as of August 1, 2000; therefore,
they argue, BP West Coast essentially permits Arizona Grocery
protection of the final rate once it is determined.
At the outset, we note that in this case the Commission
accepted SFPP’s proposed rate subject to refund as an interim
rate to compensate pipelines before the final just and reasonable
rate was to be determined. The question before us is whether we
should therefore consider the August 2000 rates minus potential
refunds to be FERC-prescribed and thus immune to reparation
claims. Critical to our analysis is the fact that when FERC
accepted this interim rate, its methodology had not yet been
established for determining the final rate. Because we agree
with petitioners that the Commission could not have “approved
or prescribed” just and reasonable rates as of August 1, 2000, we
conclude that these yet-to-be-finalized rates, which the shippers
paid to use SFPP’s East Line, do not receive Arizona Grocery
protection. The Commission’s ruling in denying these shippers
reparations was thus contrary to law.
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A.
To determine whether the challenged rates were FERCprescribed, we must review their provenance. SFPP proposed
the August 1, 2000 rates in response to a FERC order, which
was the result of the proceedings now referred to as the OR92-8
proceedings. We briefly describe the relevant portion of those
proceedings.
As we discussed in Part II, § 1803(a) of the EPAct
grandfathered any rate in effect for the full year ending on the
date of the enactment of the EPAct (October 24, 1992) unless it
had been subject to protest, investigation, or complaint during
that year. SFPP was unable to benefit from this protection for
its East Line rates because one month before passage of the
EPAct, a shipper filed a complaint challenging those rates. See
BP West Coast, 374 F.3d at 1281. Following passage, numerous
shippers filed complaints challenging the East Line rates that
were not protected by the EPAct.
The Commission grouped those complaints into two
dockets: one docket included complaints filed between
November 1992 and August 1995 (Docket No. OR92-8) and
another docket included complaints filed between August 1995
and August 2000 (Docket No. OR96-2). Although the petition
before us challenges only FERC’s determination with respect to
the complaints in the OR96-2 proceedings, because that
determination rested in part on FERC’s action with respect to
the complaints in the OR92-8 proceedings, we describe each
docket in turn. The OR92-8 proceedings involved three steps by
which FERC determined that “the East Line rates between Texas
and Arizona were not just and reasonable and ordered them to
be modified and directed SFPP to make reparations
accordingly.” Opinion No. 435, 86 FERC ¶ 61,022 at 61,055
(1999) (citing SFPP, L.P., 80 FERC ¶ 63,014 (1997)). Once the
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2
The ALJ had determined – and the Commission affirmed –
that 1994 was a representative year “particularly for throughput.” 86
FERC at 61,084-85.
3
The Commission’s indexing regulation permits pipelines to
adjust their rates each year based on the Producer Price Index. See 18
C.F.R. § 342.3.
4
Although shippers are entitled to reparations beginning two
years prior to the filing date of their complaints, it is not clear from the
record whether the Commission indexed the 1994 rates to claims for
prior years because the indexing regulations were not in effect prior to
1995. See Opinion No. 435-B, 96 FERC at 62,071.
initial determination of unreasonableness had been made, the
Commission initiated proceedings to calculate the appropriate
modification so that reparations could be paid to East Line
shippers that had filed complaints. To calculate the appropriate
modification, the Commission employed a “test-year”
methodology. See 86 FERC at 61,113-14; see also BP West
Coast, 374 F.3d at 1307 (approving “test-year” methodology).
The test year chosen for the OR92-8 proceedings was 1994.2
The Commission took that rate and, using its indexing
regulation,3
determined just and reasonable rates for the East
Line from 1994 through August 1, 2000. See Opinion No. 435-
B, 96 FERC ¶ 61,281 at 62,071 (2001). The Commission then
determined the amount of reparations due shippers that had
challenged the East Line rates for these years by calculating the
difference between the rates actually paid and the adjusted rates
based on the test-year methodology. Finally, SFPP was ordered
to pay these reparations to shippers who had filed complaints.4
As indicated in Part I, the Commission’s order requiring
SFPP to pay these reparations did not conclude the OR92-8
proceedings. The shippers that had successfully challenged
SFPP’s East Line rates also challenged the amount of
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5
It is settled that the Commission had authority to direct a
pipeline to file interim rates subject to refunds if there was a
possibility that the final rates would be lower than the interim rates.
See BP West Coast, 374 F.3d at 1305.
reparations calculated by FERC, arguing that its method of
calculating SFPP’s cost of service for the test year was amiss.
In litigation that came before us in BP West Coast, these
shippers disputed whether SFPP ought to be allowed to recover
(and thus remove from the amount of reparations owed) certain
income tax allowances, litigation costs, and reconditioning costs.
See 374 F.3d at 1285-1302. Because this Court vacated the
Commission’s Lakehead policy and remanded for the
Commission to re-calculate just and reasonable rates in light of
that holding, id. at 1312, FERC had not completed proper
calculations when the instant case was heard.
Meanwhile, the Commission had never made a final
determination as to SFPP’s East Line rates going forward.
Instead, the Commission directed SFPP to propose a new tariff
for rates beginning on August 1, 2000. See Opinion No. 435-A,
91 FERC ¶ 61,135 at 61,521 (2000); Opinion No. 435-B, 96
FERC at 62,075. SFPP proposed such a tariff (“Tariff No. 60”),
which was based in large measure on the same calculations that
FERC had used to determine just and reasonable rates for 1994
through 2000. 96 FERC at 62,075.
This proposed tariff faced substantial protest from shippers.
The Commission also noted that there were “technical problems
in SFPP’s compliance filings, some of which involved clear
overreaching.” SFPP, L.P., 100 FERC ¶ 61,353 at 62,626
(2002). So the Commission accepted the rate on an interim
basis subject to later refunds if the tariff was subsequently
determined not to be just and reasonable.5 See id. at 62,625.
The Commission did so “out of equitable concern for the East
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Line shippers that are not eligible for reparations in this
proceeding” because they “would continue to pay rates higher
than those that might ultimately be determined to be just and
reasonable until such time as a final and definitive prospective
rate was determined.” Id. In other words, because FERC might
later deem SFPP’s proposed August 2000 rates to be not just and
reasonable, the Commission sought to give the benefit of that
subsequent determination to East Line shippers who had not
filed a complaint challenging these rates. The Commission
therefore stressed that SFPP’s interim rate for the East Line
shippers would not receive Arizona Grocery protection because
in this case “the Commission has expressly reserved its authority
in the context of an ongoing proceeding in which the
methodology for determining the rate had not even been
established.” Id. at 62,626 (emphasis added).
Since submitting Tariff No. 60 in August 2000, SFPP has
changed its rates each year pursuant to the Commission’s
indexing regulations. See Respondent’s Br. at 48-49. That is,
since August 1, 2000, all East Line shippers have been paying
interim rates, and once the final rates are determined all East
Line shippers will be entitled to refunds if the interim rates
exceed the final rates. As of the time briefs in this matter were
filed and argument was presented to this Court, SFPP and the
Commission were still working out the implications of BP West
Coast for the determination of a just and reasonable rate on the
East Line. Whatever rate is eventually determined to be just and
reasonable will be applied retroactively to August 1, 2000. See
BP West Coast, 374 F.3d at 1304; Opinion No. 435-B, 96 FERC
at 62,079. The shippers seek review of FERC’s determination
with respect to these rates.
The post-August 1, 2000 rates at issue in this case were not
directly challenged in the OR92-8 proceedings. Nevertheless,
insofar as these rates applied to all East Line shippers, and
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 36 of 45
37
6
Other than the time periods in which they were filed, there
is no significant conceptual difference between the complaints in the
OR92-8 proceedings and those in the OR96-2 proceedings. The
complaints in the first docket challenged the East Line’s rates between
November 1990 (two years before the first complaint in the docket
was filed) and August 2000 (the date Tariff No. 60 went into effect).
The complaints in the second docket challenged rates between late
1993 (two years before the first complaint in the docket was filed) and
May 2006 (the effective date of SFPP’s new tariff), see SFPP, L.P.,
114 FERC ¶ 61,136 at 61,463 (2006).
insofar as the complaints filed after August 1995 had still to be
addressed, the post-August 1, 2000 rates had important
consequences on the calculation of reparations arising from any
rate proceedings that ended after August 1, 2000. This brings us
to the OR96-2 proceedings, which involved complaints filed
between late 1995 and August 2000.6 The OR96-2 proceedings
were initially completed in March 2004, see Order on Initial
Decision, 106 FERC ¶ 61,300 (2004), then in June 2005, see
Remand Order, 111 FERC ¶ 61,334 (2005), and were revisited
again in December 2005, see SFPP, L.P., 113 FERC ¶ 61,277
(2005). This meant that the East Line’s post-August 1, 2000
rates and the Commission’s refund policy came under scrutiny
to the extent that reparations had to be calculated up until 2006
for the OR96-2 complainants.
In the OR96-2 proceedings, the Commission applied the
same test-year methodology it had applied in the OR92-8
proceedings, see id., but substituted 1999 for 1994 as the test
year. See 113 FERC at 62,096-97. Accordingly, FERC first
established the just and reasonable rates based on the estimated
cost of service in 1999 and then indexed these rates forward to
May 1, 2006. Based on FERC’s calculations of the test-year
rate, SFPP was directed to make compliance filings with the
proposed interim rates by February 15, 2006. Id. at 62,115. The
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 37 of 45
38
Commission held that SFPP’s newly proposed tariff would go
into effect as of May 1, 2006. Id. As in the OR92-8
proceedings, the tariff was accepted on an interim basis and was
subject to refund if the rates are later determined to be not just
and reasonable. Id. Reparations due shippers for rates paid
between 1993 and August 1, 2000 – unless shippers have
already received reparations based on the 1994 rates by virtue of
having participated in the OR92-8 proceedings – will also be
based on the 1999 indexed rates. Id. Notably for the current
controversy, however, the Commission does not intend to use
the 1999 rates to determine the just and reasonable rates between
August 1, 2000 and May 1, 2006.
The Commission argues that as a result of the interim rate
from SFPP’s Tariff No. 60, determined according to the OR92-8
proceedings, all East Line shippers will already receive
appropriate refunds once the initial 1994 test-year analysis is
corrected and appropriate refunds are ordered. The Commission
argues, therefore, that all shippers, including those in the OR96-
2 proceedings, will eventually have paid just and reasonable
rates on the East Line from August 1, 2000 because the refund
will equal the amount between SFPP’s proposed interim rate and
the final rate eventually calculated by the Commission.
Respondent’s Br. at 39. For these reasons, in the orders under
review, the Commission denied East Line shippers reparations
for rates charged for East Line service since August 1, 2000.
See ARCO Prods. Co., 92 FERC ¶ 61,244 at 61,781 (2000);
Order on Initial Decision, 106 FERC at 62,141; Remand Order,
111 FERC at 62,462-63. Instead, shippers will be entitled to
refunds alone. Shippers petition us to vacate FERC’s orders
thereby entitling them to reparations. Before turning to our
analysis of the shippers’ petition, we pause briefly to highlight
the difference between refund and reparation.
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 38 of 45
39
When FERC has accepted interim rates subject to refund,
all shippers – not just those that file complaints – are entitled to
appropriate refunds once the final “just and reasonable” rates are
established. Where the Commission has not prescribed final
“just and reasonable” rates, refunds may be appropriate, e.g.,
where an intervening change in law alters the Commission’s
cost-of-service calculation. The BP West Coast case and the
OR92-8 proceedings are illustrative. The Commission used a
test-year methodology to calculate just and reasonable rates for
a given period, but this Court subsequently held that the
Commission, as a matter of law, erred in its income tax
allowance policy. See 374 F.3d at 1285-93. This Court
therefore remanded the case back to the Commission, and the
Commission was required to recalculate the underlying rate in
light of our holding. Upon completing the calculation, the
Commission would then have to index the new just and
reasonable rate forward, and order SFPP to refund any amount
paid in excess of the new calculations. See, e.g., 113 FERC at
62,115. Reparations, by contrast, correct the errors of rate
calculations when those calculations have never been approved
as just and reasonable, and only shippers that have filed
complaints are entitled to reparations. But under Arizona
Grocery, where the Commission has prescribed a reasonable
rate, it may not then subject a carrier to reparations based on the
Commission’s revised determination of reasonableness. See
Arizona Grocery, 284 U.S. at 390.
To those who do not specialize in the Commission’s
proceedings, it may not be obvious why an East Line shipper
that is already entitled to refunds at the completion of
compliance proceedings would seek reparations, given that both
refunds and reparations amend unreasonable rates by
compensating those who have been subject to them by
overpayment. The difference to petitioners between refund and
reparation is simple: the two methods may, by circumstance
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 39 of 45
40
7
In a separate order, the Commission illustrates this
possibility:
By way of example only, assume that the new East Line rate
established by this order would be $1.00 on January 1, 1994,
and the indexed rate would be $1.10 on August 1, 2000 and
$1.20 on May 1, 2006 (the target date of new interim rates in
this proceeding). These levels ultimately become the January
1, 1994 indexed final rates adopted by the Commission in this
decision for the [OR92-8 Docket]. The projected final rate[s]
developed from the 1999 cost of service in [the OR96-2
Docket] are $1.05 as of August 1, 2000 and $1.15 as of May
1, 2006. This latter and lower rate of $1.15 would be effective
prospectively on May 1, 2006 because the East Line rates
previously established in [the OR92-8 Docket] are subject to
the Arizona Grocery doctrine.
113 FERC at 62,110.
alone, reflect two different values.7
B.
The issue before us is whether Arizona Grocery precludes
reparations otherwise due East Line shippers for the rates they
have paid since August 1, 2000. We are asked to consider, in
particular, our holding in BP West Coast, which acknowledged
the Commission’s authority “to direct an oil pipeline to file
interim rates to go into effect, subject to refund, during the
suspension period for the initial rates.” 374 F.3d at 1305. The
limited question before us is whether the final rate, which will
be determined at the completion of compliance proceedings, is
entitled to Arizona Grocery protection. Put differently, the
question is whether East Line shippers can be considered to have
paid FERC–prescribed rates since August 1, 2000 if they receive
refunds at the end of yet-to-be concluded compliance
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 40 of 45
41
proceedings. If so, they will not be entitled to reparations. If the
disputed rates paid since August 1, 2000 are not FERCprescribed rates, shippers may seek reparations.
The Arizona Grocery doctrine is essentially a prohibition
against retroactive ratemaking. The key passage from Arizona
Grocery states:
Where the Commission has upon complaint, and after
hearing, declared what is the maximum reasonable rate to
be charged by a carrier, it may not at a later time . . . by
declaring its own finding as to reasonableness erroneous,
subject a carrier which conformed thereto to the payment of
reparation measured by what the Commission now holds it
should have decided in the earlier proceeding to be a
reasonable rate.
284 U.S. at 390; see also Verizon Tel. Cos. v. FCC, 269 F.3d
1098, 1107 (D.C. Cir. 2001) (noting that Arizona Grocery
proscribes “the retroactive revision of established rates through
ex post reparations”). The purpose of the doctrine is to ensure
that when carriers – in this case, pipelines – rely on the
Commission’s determinations regarding just and reasonable
rates, they will not then be forced to pay reparations when the
Commission subsequently reconsiders its prior approval. See
Arizona Grocery, 284 U.S. at 389 (“[T]he carrier is entitled to
rely upon the declaration as to what will be a lawful, that is, a
reasonable rate[.]”). For this reason, in order for the Arizona
Grocery doctrine to apply, the Commission must have
“approved or prescribed” or “declared” a reasonable rate upon
which the carrier has relied. Id. at 381, 390.
We hold that where, as here, the Commission accepts a
pipeline’s proposed tariff subject to suspension and refund
without even establishing the methodology for determining the
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 41 of 45
42
final rate, the Commission cannot properly be considered to
have prescribed a just and reasonable rate until the proposed
tariff is approved at the completion of compliance proceedings.
Consequently, we hold that Arizona Grocery does not preclude
reparations in this case. Our holding today is motivated in large
measure by the Commission’s own acknowledgment that it was
uncertain of the methodology it would use to determine a just
and reasonable rate when it accepted Tariff No. 60. At the time
the shippers moved their gas through the East Line, the
Commission had yet to determine either a just and reasonable
rate or even the methodology of calculating it. The rates the
shippers paid were certainly not settled. The shippers, SFPP,
and FERC all accepted the rates to be interim. More
importantly, the shippers and SFPP knew that FERC had not yet
established the methodology it would use to determine a just and
reasonable rate for shipments after August 1, 2000. In such a
context, the pipeline owner’s reliance interest – which Arizona
Grocery tells us must be protected from retroactive ratemaking
– simply does not exist. The fact that once FERC had
determined how best to calculate a just and reasonable rate it
would apply that methodology retroactively to Tariff No. 60
does not help SFPP. That a rate is ultimately prescribed by
FERC is a necessary but not sufficient condition to invoke
Arizona Grocery protection. To extend Arizona Grocery
protection to such unsettled rates retroactively would itself
amount, potentially, to retroactive ratemaking. Therefore, even
after having received refunds, all East Line shippers remain
entitled to reparations to the extent that the Commission later
determines these rates (less any refunds) to be unjust and
unreasonable.
Without any approval, prescription, or declaration of (at a
minimum) a definitive methodology by which pipelines are
instructed to compute reasonable rates, it is not at all clear in
what sense the pipelines can be considered to have relied upon
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 42 of 45
43
the Commission’s determination. See Arizona Grocery, 284
U.S. at 390 (noting that the Arizona Grocery doctrine only
protects shippers that have “conformed” to FERC-prescribed
rates). Perhaps a reliance argument could be made if the
Commission had established a clear guideline for calculating
reasonable rates and still accepted SFPP’s proposed rates on an
interim basis merely because the calculation of the exact rate
had not been completed. But that is not this case and we need
not address whether this hypothetical would trigger Arizona
Grocery protection. As the record here provides, “it is clear that
the Commission had not reached a final determination on the
methodology to be used to design SFPP’s East Line rates at the
time it accepted Tariff No. 60 subject to refund or on the level
of those rates.” 100 FERC at 62,625.
At oral argument, the Commission argued that the Arizona
Grocery doctrine was “all about whether people are on notice.”
Tr. of Oral Arg. at 81. Thus, the Commission argued that where
shipments move under rates the shippers know to be interim,
these shipments can still be considered to have moved under the
FERC-prescribed just and reasonable rates upon receiving
appropriate refunds. This, we think, is an impermissibly broad
reading of Arizona Grocery that vitiates its purpose, which is to
protect the pipeline’s reasonable reliance interest. We are not
aware of any authority that supports such a sweeping application
of Arizona Grocery urged upon us by the Commission. By
contrast, we have previously cautioned against overly broad
interpretation of Arizona Grocery. See, e.g., Verizon Tel. Cos.,
269 F.3d at 1107 (“Arizona Grocery has been and should be
understood in the terms in which it was decided . . . .”).
In support of the Commission’s ruling, FERC and
intervenors SFPP and the Association of Oil Pipe Lines argue
that this Court in BP West Coast has already held that SFPP’s
post-refund rates would be considered final and prescribed
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 43 of 45
44
effective August 1, 2000. But this asks too much of our holding
in BP West Coast. In that case, SFPP challenged the
Commission’s authority to order refunds to East Line shippers
for the interim rates they had been paying since August 1, 2000.
We held as regards pre-refund interim rates that “[t]he
Commission did not establish final lawful rates where it has
expressly reserved authority to make adjustments in the context
of an ongoing proceeding in which the methodology for
determining the rate had not even been established.” 374 F.3d
at 1305 (emphasis added). We never addressed whether the
Commission’s final lawful rates would eventually be considered
to have been prescribed as of August 1, 2000 for purposes of
Arizona Grocery protection. The issue of whether shippers’
claims for reparations would be barred by the Commission’s
inability to establish the proper methodology to calculate just
and reasonable rates until the end of compliance proceedings
was not properly before us until today.
Nor are we persuaded by intervenors’ argument that
“[w]here, as here, FERC orders a carrier to make a compliance
filing or file a new tariff to be effective prospectively from the
date of the tariff, FERC is prescribing rates.” Final Joint Br. of
Intervenors SFPP, L.P. and Ass’n of Oil Pipe Lines in Support
of Respondent at 14. Such a broad statement is patently
inconsistent with the holding of BP West Coast because in that
case we specifically upheld the Commission’s authority to
accept a tariff on an interim basis.
In sum, the Commission acted contrary to law when it held
that Arizona Grocery precluded the Commission from awarding
reparations to East Line shippers for rates paid after August 1,
2000. To be sure, for East Line shippers to receive reparations,
they will still need to demonstrate that the rates they paid after
August 1, 2000 were unjust and unreasonable. Nonetheless, the
Commission erred by holding that Arizona Grocery
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 44 of 45
45
categorically barred it from granting the reparations sought by
the shippers. For the foregoing reasons, we vacate the portions
of the orders under review in which the Commission disallowed
reparations for East Line rates post-August 1, 2000.
IV.
For the aforementioned reasons, the petitions for review are
granted in part and denied in part. We deny the petitions for
review with respect to the income tax allowance issues and the
Energy Policy Act issues. We grant the petitions for review
with respect to the reparations issue, and we remand to the
Commission for further proceedings consistent with this
opinion.
So ordered.
USCA Case #05-1303 Document #1043050 Filed: 05/29/2007 Page 45 of 45 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-2_05-cv-00156/USCOURTS-ared-2_05-cv-00156-0/pdf.json | [
[
"Arnold Mitchell",
"Plaintiff"
],
[
"Linda Sanders",
"Defendant"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
ARNOLD MITCHELL PETITIONER
REG. #20818-044
V. NO. 2:05CV00156 JWC
LINDA SANDERS, Warden, RESPONDENT
FCI, Forrest City, AR
JUDGMENT
In accordance with the Court's Memorandum Opinion and Order entered this date,
judgment is hereby entered granting Petitioner’s 28 U.S.C. § 2241 petition for writ of
habeas corpus and directing Respondent to: (a) consider, within twenty days and in good
faith, transferring Petitioner to a community corrections center for the last six months of his
sentence, or for the remainder of his sentence if less than six months remain to be served,
in accordance with the factors taken into account by the BOP prior to its adoption of the
December 2002 Policy; and (b) place Petitioner in conditions that will afford him a
reasonable opportunity to adjust to and prepare for his reentry into the community during
a reasonable part of the last ten percent of his term, to the extent practicable, not to
exceed six months.
IT IS SO ORDERED this 11th day of October, 2005.
UNITED STATES MAGISTRATE JUDGE
Case 2:05-cv-00156-JWC Document 9 Filed 10/11/05 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-16-06323/USCOURTS-ca4-16-06323-0/pdf.json | [
[
"United States of America",
"Appellee"
],
[
"Shontonio L. Witherspoon",
"Appellant"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6323
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHONTONIO L. WITHERSPOON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:08-cr-00844-PMD-1)
Submitted: September 29, 2016 Decided: October 4, 2016
Before SHEDD, KEENAN, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Shontonio L. Witherspoon, Appellant Pro Se. Sean Kittrell,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 16-6323 Doc: 11 Filed: 10/04/2016 Pg: 1 of 3
2
PER CURIAM:
Shontonio L. Witherspoon seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2255 (2012)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (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 motion 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
Witherspoon 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: 16-6323 Doc: 11 Filed: 10/04/2016 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: 16-6323 Doc: 11 Filed: 10/04/2016 Pg: 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-93-05130/USCOURTS-ca10-93-05130-0/pdf.json | [
[
"Billy W. Hill",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | •
PUBLISH
SEP 2 7 199' UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-5130
BILLY W. HILL,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. 93-CR-10-B)
Submitted on the briefs:
Michael G. Katz, Federal Public Defender, and Susan L. Forman,
Assistant Federal Public Defender, Denver, Colorado, for
Defendant-Appellant.
Stephen C. Lewis, United States Attorney, and Allen J. Litchfield,
Assistant United States Attorney, Northern District of Oklahoma,
Tulsa, Oklahoma, for Plaintiff-Appellee.
Before SEYMOUR, Chief Judge, McKAY and BALDOCK, Circuit Judges.
McKAY, Circuit Judge.
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 1
The parties have agreed that this case may be submitted for
decision on the briefs. See Fed. R. App. P. 34(f); lOth Cir. R.
34.1.2. The case is therefore ordered submitted without oral
argument.
This is an appeal from two federal district court rulings
denying Defendant's motion to suppress evidence and sentencing him
as an armed career criminal. On December 16, 1992, police
officers executed a search warrant for narcotics at a residence in
Tulsa, Oklahoma. While the officers were performing their
investigation at the residence, the telephone rang five to ten
times. The various callers on the phone asked to speak to Wanda
or Tony, the persons who resided at that address. One phone call
was answered by Officer Carlock, and the caller identified herself
as Katrina. Katrina asked for Wanda, and Officer Carlock told her
that Wanda was not in. Katrina stated that she had purchased
drugs from Wanda earlier in the day but had failed to sell them so
she wanted to return the drugs and get her money back. Officer
Carlock, who told Katrina that his name was "Bill," indicated that
Wanda would be not home for a while, but that if she would stop by
the house he would take care of her problem. Katrina stated that
she would arrive at the house in about thirty minutes.
Approximately thirty-five minutes later, Defendant arrived at
the scene. After two officers dressed in street clothes answered
his knock on the door and greeted him, Defendant asked to see
"Bill." Over the next several minutes, while the officers and
-2-
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 2
Defendant apparently chatted on the couch, Defendant continually
asked to see Bill. After not getting a suitable answer, Defendant
eventually got up to leave and announced that he would return
later. One of the officers then walked in front of the door to
block Defendant's exit, stuck his hand out, and identified himself
as a police officer. According to the testimony of the officer,
Defendant proceeded to walk directly into the officer's hand, at
which time the officer's hand came to rest on a gun that was
tucked under Defendant's waistband. Then, according to the
officer, Defendant reached for his jacket pocket, so the officer
grabbed Defendant's hand to intercept him from retrieving any
weapons. The officer then searched Defendant and recovered a
loaded weapon tucked into his pants and another gun in Defendant's
jacket pocket.
Defendant was subsequently indicted in federal district court
for one count of felon in possession of a firearm, in violation of
18 U.S.C. § 922(g) (1). Before trial, Defendant filed a motion to
suppress, arguing that the guns that formed the basis for his
prosecution were illegally seized under Terry v. Ohio, 392 U.S. 1
(1967) . The district court held a pretrial evidentiary hearing on
the motion and denied it. Defendant then pled guilty to the
charge alleged in the indictment, reserving his right to appeal
the denial of his suppression motion under Federal Rule of Criminal Procedure 11(a) (2). The government subsequently filed a
notice that it was seeking to have Defendant sentenced as an armed
career criminal pursuant to 18 U.S.C. § 924(e) (1). The notice
-3-
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 3
cited three prior convictions as the basis for the enhancement:
(1) a June, 1980 Kansas conviction for aggravated robbery, (2) a
February 2, 1973 Kansas conviction for aggravated robbery, and (3)
an October 19, 1966 Oklahoma conviction for second degree burglary.
We first address the district court's denial of Defendant's
suppression motion. The district court found that the officer had
reasonable suspicion to subject Defendant to a Terry pat-down,
because the officer felt the gun hidden in Defendant's pants when
Defendant conveniently walked into his outstretched hand. After
feeling the gun, the officer witnessed Defendant attempt to reach
into his jacket pocket, and the officer feared that he might be
reaching for a gun. At that point, the officer "seized" Defendant
and subjected him to a Terry pat-down search which produced the
two guns at issue in this case. While Defendant makes a persuasive argument that the circumstances prior to that incident did
not give rise to a reasonable suspicion of illegal activity, there
is no doubt that, if the officer's testimony is credited concerning the events that transpired in front of the door, the
officer's actions were reasonable and justified. At the suppression hearing, the district court adopted the officer's version
of the facts, and Defendant has not provided this court with a
basis to rule that the district court's factual findings were
clearly erroneous. The denial of Defendant's suppression motion
is therefore affirmed.
-4-
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 4
Next, Defendant argues that the district court erred in
enhancing his sentence as an armed career criminal. The Armed
Career Criminal Act, 18 U.S.C. § 924(e) (1), provides a fifteenyear mandatory minimum for anyone who is convicted under 18 U.S.C.
§ 922(g) and has three prior convictions for violent felonies or
serious drug offenses. The district court enhanced Defendant's
sentence under§ 924(e) (1) based on the evidence of Defendant's
three prior convictions supplied by the prosecution. Defendant
claims that the district court erred in this respect, because the
government did not submit sufficient evidence that the 1966 second
degree burglary conviction was a "violent felony" for purposes of
enhancement.
Because of the wide variances in state law burglary statutes,
the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990),
created a narrow definition of burglary for purposes of implementing § 924(e). The Court stated:
We conclude that a person has been convicted of burglary
for purposes of a§ 924(e) enhancement if he is convicted of any crime, regardless of its exact definition
or label, having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.
Id. at 598. In determining whether a conviction properly counts
toward enhancement, Taylor provides that the sentencing court is
to use a "categorical approach" rather than inquire into the
underlying facts. Id. at 600. This approach requires a comparison of the elements of the relevant state statute with the basic
elements of burglary adopted in Taylor. Id.
-5-
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 5
The Oklahoma law under which Defendant was convicted defines
second degree burglary as follows:
Every person who breaks and enters any building or
any part of any building, room, booth, tent, railroad
car, automobile, truck, trailer, vessel or other
structure or erection, in which any property is kept, or
breaks into or forcibly opens, any coin-operated or
vending machine or device with intent to steal any
property therein or to commit any felony, is guilty of
burglary in the second degree.
Okl. Stat. title 21 § 1435.
Because this Oklahoma statute defines burglary to include the
breaking and entering of automobiles, tents, coin-operated
machines, railroad cars, trucks, trailers, vessels, and booths, it
is clearly overbroad for purposes of the Taylor definition.l
Therefore, convictions under it cannot, as a categorical matter,
provide a basis for enhancement. See United States v. Barney, 955
F.2d 635, 638 (lOth Cir. 1992) (burglary statute that includes
automobiles and vending machines overbroad for purposes of Taylor
and cannot provide basis for enhancement under Armed Career
Criminal Act). Taylor further provides, however, that where the
state statute is broader than the generic Taylor definition, the
sentencing court may review the charging document and the jury
instructions to see if the jury necessarily found the elements of
a Taylor generic burglary. Taylor, 495 U.S. at 602. If, from
1 The government asserts that in United States v. Amos, 984
F.2d 1067, 1071 (lOth Cir. 1993), this court held that the
Oklahoma second degree burglary statute at issue in this case is
not overbroad for purposes of Taylor. However, Amos simply does
not stand for the government's asserted proposition. Because it
includes places and objects beyond mere buildings, the Oklahoma
statute is a classic example of an overbroad burglary statute.
-6-
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 6
these documents, it is clear to the sentencing court that the
earlier conviction actually satisfied the Taylor definition of
burglary, then it may be used for enhancement purposes. Id.
In the 1966 burglary case, however, Defendant did not face a
jury because he pled guilty, so no jury instructions existed for
the district court to review. In the context of a guilty plea,
the Tenth Circuit has held:
We join other circuits which have considered this
question in holding that where enhancement is sought on
the basis of a conviction obtained through a guilty
plea, the sentencing court may look to the text of the
underlying indictment or information and the text of the
guilty plea to determine whether the defendant was
charged with and admitted conduct which falls without
question within the ambit of Taylor's generic definition.
Barney, 955 F.2d at 639 (emphasis added).
The policy behind the requirement that the government supply
the text of the guilty plea is clear: The crime that a defendant
is charged with and the crime that he ultimately pleads guilty to
in a plea bargain can be, and often are, quite different. In the
context of an overbroad burglary statute, for example, a person
could break into a building, steal money from vending machines
inside the building, and then break into a car in the parking lot
as he is leaving the scene. Although he may originally be charged
with three counts of second degree burglary under a statue similar
to Oklahoma's, he may end up pleading guilty to burglarizing
vending machines in exchange for having the other two charges
dropped. In such a case, the conviction would not meet the
-7-
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 7
generic definition of Taylor, and, therefore, could not be used
for enhancement.
In this case, the government did introduce a copy of the
Information that originally charged Defendant with second degree
burglary of a building. However, the government did not introduce
the text of the guilty plea, so the sentencing court had no way of
knowing precisely what acts Defendant admitted to committing under
Barney. Instead, the government offered police reports reflecting
the Tulsa police department's investigation of the underlying
facts of the crime. Clearly, these documents did not satisfy the
Barney standard, and they represent the kind of 11 inquiry into the
underlying facts 11 that Taylor specifically rejected. Taylor, 495
U.S. at 600.
The government also introduced the Judgment from the 1966
conviction, which indicated that Defendant pled guilty to second
degree burglary. In some circumstances, a Judgment could compensate for the lack of the text of the guilty plea if its
specificity cured any doubt that the conviction met the Taylor
definition. For example, if the Judgment stated that a defendant
pled guilty to 11 Second degree burglary of a building, 11 it would be
clear that the defendant's plea met the generic Taylor definition.
In this case, however, the Judgment failed to provide specificity
as to the underlying facts to which Defendant admitted, but simply
stated that Defendant pled guilty to 11 Second degree burglary ...
-8-
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 8
Therefore, the Judgment offered by the prosecution fails to salvage the 1966 Oklahoma conviction as one that may be used for
enhancement purposes under Taylor and Barney.2
For all of the above reasons, we hold that the government
failed to prove that the 1966 Oklahoma conviction for second
degree burglary was for a 11 Violent felonyn under Taylor v. United
States, 495 U.S. 575 (1990), and United States v. Barney, 955 F.2d
635, 638 (lOth Cir. 1992). Accordingly, the district court erred
in sentencing Defendant as an armed career criminal, and we
REVERSE and REMAND for resentencing. The district court's denial
of Defendant's suppression motion is AFFIRMED.
2 The government also asserts that this case is indistinguishable from United States v. Amos, 984 F.2d 1067, 1070-71 (lOth
Cir. 1993). In Amos, this court held that the defendant's
Oklahoma conviction for second degree burglary was properly considered for enhancement, despite the government's failure to
submit the text of his guilty plea. In that case, however, the
defendant admitted at his federal sentencing hearing that his
earlier conviction fell within the Taylor definition of burglary,
so the defendant's own admission cured any lack of specificity in
the government's evidence. Id. at 1071 n.3.
-9-
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BALDOCK, Circuit Judge, dissenting in part.
I am unable to join that portion of this court's opinion
reversing Defendant's sentence pursuant to the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (1). Relying on United States v.
Barney, 955 F.2d 635, 639 (lOth Cir. 1992), this court holds that
the government was required to produce the text of Defendant's
guilty plea to his 1966 second degree burglary conviction in order
to prove Defendant was convicted of conduct which fell within the
generic definition of burglary as set forth in Taylor v. United
States, 495 U.S. 575 (1990). Because I conclude the government
established that Defendant's 1966 burglary conviction represents
conduct falling within Taylor's definition of burglary even in the
absence of the text of Defendant's guilty plea, I must
respectfully dissent.
In Taylor, the Supreme Court defined burglary for§ 924(e)
enhancement purposes as an "unlawful or unprivileged entry into,
or remaining in, a building or structure, with intent to commit a
crime." Taylor, 495 U.S. at 599. Where a defendant has been
convicted under a state statute which defines burglary broader
than Taylor, the conviction may nevertheless be used for
enhancement purposes if "the charging paper and jury instructions
actually required the jury to find all the elements of generic
burglary in order to convict the defendant." Id. at 602.
In instances where no jury instructions exist because the
defendant pleaded guilty, we held in Barney that the sentencing
court may review "the underlying indictment or information and the
text of the guilty plea to determine whether the defendant was
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 10
charged with and admitted conduct which falls without question
within the ambit of Taylor's generic definition." Barney, 955
F.2d at 639. If the defendant pleaded guilty to charges supported
by an indictment or information satisfying Taylor's burglary
definition, the conviction may be used for enhancement purposes.
Id. at 640.
Applying Barney to the instant case, this court concludes
that although the government submitted Defendant's burglary
information and the "judgment and sentence on plea of guilty" to
second degree burglary in support of the enhancement, Defendant's
sentence must be reversed because the government did not introduce
the text of Defendant's guilty plea. In the absence of the text
of the plea, this court concludes the district court "had no way
of knowing precisely what acts Defendant admitted to committing
under Barney." The court further concludes the judgment of
conviction fails to compensate for the lack of the text of the
plea because the judgment merely states that Defendant pleaded
guilty to "second degree burglary." As a result, this court holds
the government failed to prove Defendant's 1966 burglary
conviction represented conduct satisfying Taylor's generic
burglary definition. I disagree.
Although Barney permits a sentencing court to examine the
text of the guilty plea, see id. at 639, I do not read Barney as
requiring the government to introduce the text of the plea where
the charging instrument and judgment necessarily show that the
-2-
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defendant's conviction represents conduct falling within the ambit
of Taylor's burglary definition.l Indeed, in United States v.
Lujan, 9 F.3d 890, 892 (lOth Cir. 1993)--a case involving the
government's obligation to introduce jury instructions to support
an enhancement--we held that Taylor does not "require the
government to provide jury instructions in a case where the
charging document and verdict necessarily show that the jury found
the requisite elements of burglary."
Likewise, in the instant case, the charging document and the
judgment--when read as a whole--"establish without question, that
[Defendant's 1966 burglary conviction] fulfills the elements
required by Taylor." Barney, 955 F.2d at 640. The information
charged Defendant with second degree burglary and stated in
explicit detail that Defendant:
unlawfully, wrongfully, wilfully [sic], feloniously and
burglariously, [broke] and entered into a certain
building . . . owned by and in possession of STANDARD
MOTOR SUPPLY in which building personal property of
value was kept and contained, by breaking open the outer
skylight of the said building, and entering the said
building without the consent of said owner, with the
wilfull (sic] and felonious intent to steal said
property.
Defendant's burglary information included all the elements of a
generic burglary as defined in Taylor. Moreover, the
corresponding judgment indicates that Defendant pleaded guilty to
second degree burglary. By pleading guilty, Defendant necessarily
1 As pointed out in this court's opinion, the government might
be required to introduce the text of a defendant's guilty plea
where the crime with which the defendant is charged differs from
the crime he ultimately pleads guilty to in a plea bargain.
However, we are not presented with such a scenario in this case.
Rather, Defendant was charged in an information with a single
count of second degree burglary and pleaded guilty to this count.
-3-
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 12
•
admitted "all material facts alleged in the charge." United
States v. Kelsey, 15 F.3d 152, 153 {lOth Cir. 1994). Because
Defendant pleaded guilty to a charge supported by an information
which satisfied the Taylor definition, his 1966 burglary
conviction properly counts toward enhancement.
I would affirm the sentence imposed by the district court.
-4-
Appellate Case: 93-5130 Document: 01019306500 Date Filed: 09/27/1994 Page: 13 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-15-03277/USCOURTS-ca6-15-03277-0/pdf.json | [
[
"Emma Miller",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | 1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0105p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAMUEL MULLET, SR. (15-3212); LESTER MULLET
(15-3231); LEVI MILLER (15-3232); ANNA MILLER
(15-3237); JOHNNY S. MULLET (15-3246); EMANUEL
SCHROCK (15-3247); RAYMOND MILLER (15-3249);
KATHRYN MILLER (15-3250); ELI MILLER (15-
3267); DANIEL S. MULLET (15-3268); LESTER M.
MILLER (15-3269); LINDA SCHROCK (15-3270);
LOVINA MILLER (15-3273); ELIZABETH MILLER (15-
3275); EMMA MILLER (15-3277),
Defendants-Appellants.
┐
│
│
│
│
│
│
│
│
│
│
│
│
│
│
│
┘
Nos. 15-3212/ 3231/ 3232/
3237/ 3246/ 3247/ 3249/ 3250/
3267/ 3268/ 3269/ 3270/ 3273/
3275/ 3277
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:11-cr-00594—Dan A. Polster, District Judge.
Argued: April 19, 2016
Decided and Filed: May 4, 2016
Before: SUTTON and GRIFFIN, Circuit Judges; SARGUS, District Judge.*
_________________
COUNSEL
ARGUED: Wendi L. Overmyer, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron,
Ohio, for Appellants in 15-3212, et al. Joseph P. Morse, JOSEPH P. MORSE & ASSOCIATES,
Cleveland, Ohio, for Appellant in 15-3232. Mark R. Butscha, Jr., THOMPSON HINE LLP,
Cleveland, Ohio, for Appellant in 15-3237. Christine Ku, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Wendi L. Overmyer, Edward G.
*
The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern District of
Ohio, sitting by designation.
>
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United States v. Mullet, et al. Page 2
Bryan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, Nevin E. Johnson,
Hudson, Ohio, for Appellants in 15-3212, et al. Joseph P. Morse, JOSEPH P. MORSE &
ASSOCIATES, Cleveland, Ohio, for Appellant in 15-3232. Mark R. Butscha, Jr., John R.
Mitchell, Matthew D. Ridings, Holly H. Little, THOMPSON HINE LLP, Cleveland, Ohio,
Joseph B. Rose III, THE ROSE LAW FIRM, Cleveland, Ohio, for Appellant in 15-3237.
Damian A. Billak, Canfield, Ohio, for Appellant in 15-3231. Robert E. Duffrin, WHALEN
DUFFRIN LLC, Boardman, Ohio, for Appellant in 15-3246. Nathan A. Ray, Akron, Ohio, for
Appellant in 15-3247. James S. Gentile, Youngstown, Ohio, for Appellant in 15-3267. Samuel
G. Amendolara, AMENDOLARA & RAFIDI, LLC, Boardman, Ohio, for Appellant in 15-3268.
J. Dean Carro, BAKER, DUBLIKAR, BECK, WILEY, & MATTHEWS, North Canton, Ohio,
for Appellant in 15-3269. Joseph A. Dubyak, Cleveland, Ohio, for Appellant in 15-3270. David
C. Jack, Wadsworth, Ohio, for Appellant in 15-3273. Bridget M. Brennan, UNITED STATES
ATTORNEY’S OFFICE, Cleveland, Ohio, Diana K. Flynn, Thomas E. Chandler, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. This is a sequel. In the first appeal, we addressed a jury verdict
that convicted sixteen members of the Bergholz, Ohio, Amish community of hate crime and
obstruction-of-justice charges stemming from a spate of hair-cutting and beard-shearing attacks.
We reversed the hate crime convictions because the relevant jury instruction was inconsistent
with an intervening Supreme Court decision. 767 F.3d 585 (6th Cir. 2014). On remand, the
government declined to re-try those charges, and the district court resentenced the defendants on
the remaining convictions.
In this second appeal, the defendants challenge their remaining convictions on grounds
that could have been, but were not, raised in the first appeal. In addition, the defendants object to
certain features of their new, lower sentences. We affirm.
I.
Around 2001, the Bergholz Amish community became a separate church district within
the Old Order Amish, one of 474 such districts in Ohio. Its bishop, Samuel Mullet, Sr.,
exercised considerable influence over the community and assumed the power to “shun”
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(excommunicate) members who strayed from church doctrine. R. 540 at 296. He used that
power in 2006 for several church members who questioned his leadership. Other communities
generally may not admit an excommunicated member until he receives forgiveness from the
community that first shunned him. The Bergholz excommunications proved to be an exception.
Other Amish bishops reversed the decisions in September 2006, agreeing that communities
outside Bergholz could admit the excommunicated members.
The excommunications split those who supported Bergholz from those who did not,
straining parent-child and husband-wife relationships in the process. One couple divorced and
went through a protracted custody dispute, which culminated in a court order that precluded
some of Samuel’s grandchildren from spending any parenting time in Bergholz. The idea of
cutting beards first arose from these events. Some Bergholz residents cut their own beards as a
way to atone for the sins that, as they saw it, prompted the loss of the children. When the
Bergholz members turned the ritual on others for the sake of punishment, the victims were
parents, friends, and others who had criticized the Bergholz practices and had left the
community.
Each assault after the excommunications schism proceeded in a similar way. Hired cars
facilitated travel between Bergholz and other communities. Several assailants sliced off a man’s
beard or, in one case, a woman’s long hair. Doing so often entailed grabbing a man by his beard,
forcing him into a chair, and holding him there as he struggled to avoid the scissors, electric
trimmer, or horse shears that robbed him of a defining part of his Amish identity. On at least two
occasions, the assailants photographed the events on a disposable camera.
Local enforcement authorities, and eventually the FBI, responded to the attacks. A
federal grand jury indicted sixteen Bergholz residents on three types of charges: (1) violating the
Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, (2) concealing evidence, and
(3) lying to the FBI. Each defendant faced at least one of six hate crime counts stemming from
the hair-cutting and beard-shearing assaults. 18 U.S.C. § 249(a)(2). Several defendants faced
counts of concealing evidence, with one count related to hiding the disposable camera. Id.
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§ 1519. Samuel faced a count of lying to the FBI. Id. § 1001(a)(2). All sixteen defendants faced
a conspiracy count—that they agreed to commit the hate crimes, conceal the evidence, and lie to
the FBI. Id. § 371.
After a ten-day trial, the jury convicted all sixteen individuals on most of the charges. It
found they had conspired to commit hate crimes and to conceal evidence but not to lie to the
FBI. The jury returned guilty verdicts on five of the six hate crime counts, the obstruction count
related to hiding the camera, and the false statement count. The district court sentenced the
defendants to terms ranging from one year and a day to fifteen years.
In the first appeal, we reversed the hate crimes convictions based on a faulty jury
instruction. United States v. Miller, 767 F.3d 585, 601 (6th Cir. 2014). On remand, the
government declined to retry those counts. That left the district court to resentence the
defendants on the remaining convictions: (1) conspiring to conceal evidence (all sixteen
defendants), (2) concealing the camera (three defendants), and (3) lying to the FBI (Samuel).
The district court resentenced eight defendants to time served. The court resentenced the other
eight to terms ranging from forty-three to 129 months. All but one defendant appeals.
II.
Fifteen defendants challenge their extant convictions. But they did not challenge those
convictions in their first appeal, and that makes all the difference.
In criminal case after criminal case, we have declined to allow a criminal defendant who
fails to challenge part of a conviction in an earlier appeal to raise it in a later appeal. See, e.g.,
United States v. Traxler, 517 F. App’x 472, 473–74 (6th Cir. 2013); United States v. Brika,
487 F.3d 450, 464–65 (6th Cir. 2007); United States v. Adesida, 129 F.3d 846, 849–50 (6th Cir.
1997). This approach is “well-settled,” United States v. Henry, 472 F.3d 910, 913 (D.C. Cir.
2007) (per curiam), prevents “perpetual litigation,” United States v. McKinley, 227 F.3d 716, 719
(6th Cir. 2000), and “encourage[s] compliance with fair and efficient procedure”—above all by
encouraging defendants to raise all challenges to a conviction in one appeal, 18B Charles Alan
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Wright et al., Federal Practice & Procedure § 4478.6 (2d ed. 2016). Seeing no fair reason to give
full review to these arguments now, especially as no defendant has explained the omissions from
the earlier appeal, we decline to break from this consistent practice. The defendants’ belated
challenges to their convictions—mainly to the sufficiency of the evidence for concealing
evidence, for conspiring to do so, and for making a false statement to the FBI—thus fail.
The defendants resist this conclusion on several grounds. First, all fifteen of them argue
that we must dismiss the indictment because the district court lacked “jurisdiction” over the
crimes. The argument proceeds in four steps: (1) A defendant may raise “at any time while the
case is pending” a claim that “the court lacks jurisdiction,” Fed. R. Crim. P. 12(b)(2);
(2) Congress lacked “jurisdiction” to enact the Hate Crimes Act because the Act exceeds
Congress’s power under the Commerce Clause; (3) if Congress lacked jurisdiction to pass the
Act, the FBI lacked “jurisdiction” to investigate any potential violation of it, 18 U.S.C. §§ 1001,
1519; and (4) if the FBI had no jurisdiction to investigate those violations, the federal courts lack
“jurisdiction” to hear prosecutions related to that investigation, such as concealing evidence and
making false statements.
This argument shows why “‘[j]urisdiction’ is a word of many, too many, meanings.”
United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996); see Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 90 (1998). Look at the many ways the defendants use the word here.
One relates to congressional power: The Constitution gives “Congress[] authority (jurisdiction,
if you must) to pass a law.” United States v. Al-Maliki, 787 F.3d 784, 791 (6th Cir. 2015). One
relates to executive-branch power: To “protect[] . . . official inquiries,” the FBI’s “jurisdiction”
for the purposes of obstruction statutes extends to any investigation based on “explicit statutory
authority.” Bryson v. United States, 396 U.S. 64, 70–71 (1969). And one relates to judicial
power: The federal courts have “jurisdiction” over “all offenses against the laws of the United
States.” Al-Maliki, 787 F.3d at 791; see 18 U.S.C. § 3231.
That the term “jurisdiction” may refer to the powers of all three branches of the federal
government does not mean that a jurisdictional failing in one setting has jurisdictional
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consequences in another. It’s bad enough that courts often talk too loosely about jurisdiction in
just one of these settings: the power of the federal courts. It would be much worse if courts
mixed and matched references to jurisdiction in the manner that this argument does: talking
about congressional power as though it is a form of judicial power or executive-branch power as
though it is a form of judicial power. That is not what Criminal Rule 12(b)(2) does. It refers to
just one of these meanings of jurisdiction—one of these types of federal power. When it says
that a defendant may raise “at any time while the case is pending” a claim that “the court lacks
jurisdiction” over the case, it refers only to the power of the federal courts—the subject matter
jurisdiction of those courts to hear certain cases and controversies.
That clarification suffices to reject the defendants’ argument. Plain as day, the district
court had subject matter jurisdiction over each of the charged federal crimes at issue today. AlMaliki, 787 F.3d at 791. And that judicial power did not disappear due to allegations that these
crimes were uncovered in the course of an investigation for violations of the Hate Crimes Act,
even if (as they say) the Act exceeded congressional power. Id.; see Bryson, 396 U.S. at 70–71
& n.11. The initial role of the Hate Crimes Act in these prosecutions, whether the Act is
constitutional or not, did not deprive the federal courts of jurisdiction over the prosecutions and
trial. After all, the federal courts have long had jurisdiction, according to one case of note, to tell
the legislative and executive branches when they have overstepped their bounds. Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177–78 (1803).
Because the defendants’ argument does not go to the court’s jurisdiction, they forfeited it
by not raising it before trial. Fed. R. Crim. P. 12(b)(3)(B). Even so, they could have raised it
and faced plain error review in their first appeal. United States v. Edmond, 815 F.3d 1032,
1043–44 (6th Cir. 2016). They did not do so.
At this point and in the face of this double forfeiture, the most the defendants could hope
for is some form of plain error review, and even that would be generous under our caselaw. Cf.
Howe v. City of Akron, 801 F.3d 718, 743 (6th Cir. 2015). As a brief review of the merits of
these forfeited arguments shows, they do not remotely meet that standard. Even if the Hate
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Crimes Act is unconstitutional, a point we need not decide, that did not obligate the district court
to dismiss the obstruction-of-justice charges. “Our legal system provides methods for
challenging the Government’s right to ask questions” about the enforcement of unconstitutional
statutes, the Supreme Court has said in a similar context, and “lying is not one of them.” Bryson,
396 U.S. at 72. Concealing evidence is not one either. Anna Miller and Levi Miller also argue
that there was insufficient evidence to convict them of conspiracy to obstruct justice. This too is
a heavy lift on plain error review. Anna planned an attack, participated in it, and later was there
for a phone conversation that discussed whether to “get rid” of the camera that contained
incriminating photos. R. 556-9 at 6. Levi took part in one of the photographed attacks and
placed a phone call that discussed what to do with the camera. See generally United States v.
Mathis, 738 F.3d 719, 735 (6th Cir. 2013); United States v. Tragas, 727 F.3d 610, 617–18 (6th
Cir. 2013).
Second, several defendants argue that the convictions for conspiracy to conceal evidence
cannot stand because we reversed them already. That would be a powerful argument—if it were
true. A conspiracy requires an agreement to violate the law. 18 U.S.C. § 371. The jury found
that all sixteen defendants formed a single conspiracy to violate two laws: the hate crimes statute
(by attacking the various victims) and the concealing-evidence statute (by hiding the camera,
among other acts). When we reversed the hate crimes convictions due to a faulty instruction, the
defendants say, we necessarily reversed any conspiracy conviction resting on those hate crimes.
That might be true if the conspiracy conviction rested only on the underlying hate crimes.
Yates v. United States, 354 U.S. 298, 312 (1957); see also Hedgpeth v. Pulido, 555 U.S. 57, 60–
61 (2008) (per curiam); Griffin v. United States, 502 U.S. 46, 55–56, 58–60 (1991). But we
know that it did not. Using a special verdict form, the jury found “that the conspiracy was
proven and that the object(s) of the conspiracy was/were to” commit hate crimes and conceal
evidence. R. 230 at 1. Concealing evidence violates its own law. No one challenges the court’s
instruction on that count. And the jury found the defendants conspired to do it. The conspiracy
convictions in short were not overruled. See United States v. Cone, 714 F.3d 197, 211 (4th Cir.
2013); United States v. Pelisamen, 641 F.3d 399, 406–07 (9th Cir. 2011); United States v.
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McNutt, 908 F.2d 561, 565 (10th Cir. 1990); see also United States v. Neuhausser, 241 F.3d 460,
471 n.8 (6th Cir. 2001).
Third, one defendant, Anna Miller, seeks fresh review of her conviction-related
challenge. Anna says she challenged her conspiracy conviction in the first appeal, noting that
there was insufficient evidence to show she joined a conspiracy to conceal evidence. What she
argued, however, is that “The Only Conspiracy The Government Could Establish For Anna
Miller Was A Conspiracy To Cut [one victim’s] Hair.” No. 13-3183, Appellant’s Br. 35.
Following that statement was a concession that Anna Miller may have joined a conspiracy to cut
a single victim’s hair, but that, due to a culture of gender separation in Amish communities, the
evidence could not show she joined a conspiracy to commit multiple hair and beard cuttings.
The argument thus focused on the jury’s finding that the conspiracy extended to several attacks.
It never mentioned, let alone challenged, the other finding that the conspiracy intended not just to
perform the attacks but also to conceal evidence related to them. To preserve an argument, it
does not suffice to mention a point obliquely, then focus the rest of the brief on other arguments.
Kuhn v. Washtenaw County, 709 F.3d 612, 624–25 (6th Cir. 2013). That is all Anna did in the
earlier appeal and we decline to review afresh this newly invented argument.
Fourth, Levi Miller argues that, because we said in the prior appeal that “the erroneous
jury instructions require a new trial,” Miller, 767 F.3d at 602, the government had to retry the
defendants. Not so. Yes, we invalidated the hate crimes convictions. But that left the
government, not us, with the choice of whether to seek a new trial. We did not order a new trial,
and almost assuredly could not have done so. That was for the government to decide.
III.
Eight of the defendants challenge their new sentences as procedurally and substantively
unreasonable. District courts have wide latitude in each respect. Gall v. United States, 552 U.S.
38, 51 (2007).
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A.
1. Conspiracy guideline. Based on each defendant’s conviction for conspiracy to
conceal evidence, the district court used the conspiracy guideline as its starting point. U.S.S.G.
§ 2X1.1. The guidelines treat a single conspiracy with multiple objects as separate conspiracies,
one for each object. Id. § 1B1.2(d). That creates difficulties if “the verdict or plea does not
establish which offense(s) was the object of the conspiracy.” Id. § 1B1.2 cmt. n.4. When that
issue arises, the district court must “sit[] as a trier of fact” and decide for itself which objects it
“would convict the defendant of conspiring to commit.” Id. Because their conspiracy count
included multiple objects, Johnny and Daniel Mullet argue that the district court had to perform
this task and decide for itself whether there was sufficient evidence to convict each of them of
conspiring to conceal evidence. But there was no evidentiary gap to fill. The jury’s special
verdict establishes which offense was the object of the conspiracy—as noted above. No error
occurred.
2. Kidnapping guideline. After starting with the conspiracy guideline, the district court
followed a string of cross-references before applying the “kidnapping” guideline. This path, say
the defendants, led the court astray when it invoked an unduly broad definition of kidnapping.
Here’s what the court did. A cross-reference in the conspiracy guideline sent the court to
the obstruction of justice guideline. Id. §§ 2J1.2(c)(1), 2X1.1(a). The obstruction guideline in
turn led the court to the hate crimes guideline, because the obstruction hampered a hate crimes
investigation. Id. §§ 2H1.1, 2J1.2(c)(1), 2X3.1. The hate crimes guideline cross-references “the
offense guideline applicable to any underlying offense,” id. § 2H1.1(a)(1), which includes “the
offense guideline applicable to any conduct established by the offense of conviction that
constitutes an offense under federal, state, or local law,” id. § 2H1.1 cmt. n.1; see also id.
§ 1B1.3(a); United States v. Conley, 186 F.3d 7, 25–26 (1st Cir. 1999). And that, to complete the
path, led to the “kidnapping” guideline, U.S.S.G. § 2A4.1, because the jury determined that the
defendants committed a generic state law form of kidnapping by restraining their victims in order
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to cut their beards. This guideline, to use its full name, applies to “[k]idnapping, [a]bduction,
[u]nlawful [r]estraint.” Id. § 2A4.1.
The jury addressed whether the defendants kidnapped their victims because, if they did,
the statutory maximum for the hate crimes increased from ten years to life. 18 U.S.C.
§ 249(a)(2)(A). “[F]or purposes of this case,” the court instructed the jury, “‘kidnapping’ means
to restrain and confine a person by force, intimidation, or deception, with the intent to terrorize
or cause bodily injury to that person, or to restrain a person’s liberty in circumstances that create
a substantial risk of bodily harm to that person.” R. 527 at 63. The court used this definition
because it “embodies the definition and understanding of kidnapping that is used in almost all of
the country, including Ohio.” R. 314 at 34; see Ohio Rev. Code § 2905.01.
We need not decide whether this definition of “kidnapping” is the one courts should use
under the Hate Crimes Act. Either way, anything that qualifies as “kidnapping” under this
definition qualifies as “[k]idnapping, [a]bduction, [u]nlawful [r]estraint” under § 2A4.1 of the
guidelines. “[U]nlawful restraint” in the guideline, we have said, is “a residual term designed to
cover all forms of physical or forcible restraint of a victim.” United States v. Gray, 16 F.3d 681,
684 (6th Cir. 1994). “[R]estrain[ing]” while either creating “a substantial risk of bodily harm” or
intending to “terrorize or cause bodily injury” falls within the definition. R. 542 at 31.
Other cases confirm that state crimes that define kidnapping much as the court did here
qualify as “[k]idnapping, [a]bduction, [u]nlawful [r]estraint.” See United States v. Anderson,
608 F. App’x 369, 372–75 (6th Cir. 2015); United States v. Pego, 567 F. App’x 323, 329–30 (6th
Cir. 2014). The Supreme Court elsewhere has equated “unlawful restraint” with “compell[ing]
to remain where [a person] did not wish to remain, or compell[ing] to go where she did not wish
to go,” through the use of “force, fear or deception.” Chatwin v. United States, 326 U.S. 455,
460 (1946). And we have rejected narrow definitions of kidnapping in other parts of the
guidelines, see United States v. Soto-Sanchez, 623 F.3d 317, 323 (6th Cir. 2010), a conclusion
that takes on added weight when dealing with a guideline that goes beyond “[k]idnapping” to
include “[u]nlawful [r]estraint.”
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United States v. Epley does not say anything to the contrary. 52 F.3d 571 (6th Cir. 1995).
It held that the guideline was inapplicable in a prosecution of police officers for planting drugs in
order to stage an arrest. Id. at 574, 582. But Epley came out the way it did because the only state
law that the officers’ conduct possibly violated was a misdemeanor that involved restraint with
no threat of force or risk of injury. Id. at 582. Not so here, as the district court’s definition of
kidnapping required restraint and something more. Nor is the Ohio analogue used here a
misdemeanor. It is a felony of the first or the second degree and subject to a lengthy prison term.
Ohio Rev. Code § 2905.01(C)(1); see also id. § 2929.14.
Neither is it a problem that the district court’s definition of “kidnapping” captures
conduct that may not satisfy the guideline’s definition of “physical restrain[t].” U.S.S.G.
§ 3A1.3; see id. § 1B1.1 cmt. n.1(K). This court has already said that “[u]nlawful [r]estraint”
under § 2A4.1 is broader and “less severe” than “physical restraint.” Gray, 16 F.3d at 684 n.1.
The defendants also miss the mark in suggesting that the district court could not consider
the conduct as “kidnapping” because this court reversed the hate crimes convictions and the
related kidnapping findings. To consider conduct that does not increase the statutory penalty
range, a sentencing court must find that it occurred by a preponderance of the evidence. United
States v. O’Brien, 560 U.S. 218, 224 (2010). The district court found, even after taking into
account the correct instruction, that the defendants committed hate crimes, a finding this court’s
prior decision did not foreclose, see Miller, 767 F.3d at 600–02. The district court then used the
jury’s kidnapping findings to support application of the § 2A4.1 guideline. Cf. United States v.
Mathis, 476 F. App’x 22, 23–24 (5th Cir. 2012); United States v. McDougle, 82 F. App’x 153,
157–58 (6th Cir. 2003). That this court reversed the relevant convictions does not make these
decisions improper. If a court can base a sentence on acquitted conduct, it can also rely on
conduct that supports convictions vacated due to legal errors. See United States v. Alsante,
812 F.3d 544, 550–51 (6th Cir. 2016).
3. Vulnerable victim enhancement. The district court enhanced the defendants’ guideline
ranges because some of the assault victims were elderly or in poor health. Cf. United States v.
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Moon, 513 F.3d 527, 541 (6th Cir. 2008). The guidelines permit an enhancement where a
defendant “knew or should have known that a victim of the offense was a vulnerable victim,”
which may require that the victim was “unusually vulnerable.” U.S.S.G. § 3A1.1(b)(1) & cmt.
n.2; see United States v. Volkman, 797 F.3d 377, 398 (6th Cir. 2015). The guidelines mention
age and physical condition as characteristics that may make a victim “unusually vulnerable.”
U.S.S.G. § 3A1.1 cmt. n.2. The district court heard significant testimony about the advanced age
and serious illness of several victims. In view of the close personal and familial connections
between the assailants and the victims, the district court did not clearly err in finding that the
defendants knew or should have known as much.
The defendants protest that they did not choose any victims because of their vulnerability,
noting that other victims suffered the same fate and were neither old nor sick. But defendants
remain eligible for the enhancement even if they did not choose each victim based on
vulnerability. United States v. Brawner, 173 F.3d 966, 973 (6th Cir. 1999).
The defendants also protest that the district court did not impose this enhancement at the
original sentencing. But when we remand a criminal case for new sentencing and do not limit
the court’s discretion through a limited remand, it may “redo the entire sentencing process,
including considering new evidence and issues.” United States v. McFalls, 675 F.3d 599, 604
(6th Cir. 2012).
Nor does the addition of a new enhancement establish a vindictive sentence. Yes, North
Carolina v. Pearce creates a presumption of vindictiveness if a sentence after a remand is longer
than the original sentence. See 395 U.S. 711, 723–26 (1969). But that presumption has no role
to play where a “defendant ultimately receives a lower sentence at resentencing,” even if his
sentence increased on individual counts. United States v. Rodgers, 278 F.3d 599, 604 (6th Cir.
2002); see also United States v. Hagler, 709 F.2d 578, 579 (9th Cir. 1983). All of the defendants
received lower overall sentences after the remand, and none of them points to any evidence of
vindictiveness. See Rodgers, 278 F.3d at 604–05.
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4. Leadership enhancement. The district court imposed a four-level leadership
enhancement to Samuel’s guideline calculation because “the evidence definitely showed that
Bishop Mullet le[d] the community in general and le[d] this conspiracy.” R. 732 at 48; see
U.S.S.G. § 3B1.1(a). The enhancement was improper, Samuel contends, because there was no
evidence of his role in concealing evidence, which was the sole remaining object of the
conspiracy. Enhancements of this sort, we have held, “depend[] on a number of factual nuances
that a district court is better positioned [than an appellate court] to evaluate,” meaning we
exercise “deferential” review. United States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013).
The district court had ample reason to believe that Samuel played a starring role in this
conspiracy. He was the bishop of the Bergholz community and controlled life there. One
witness described him as “a dictator.” R. 528 at 205. After each attack, including those where
the assailants used the camera, everyone met at Samuel’s house. He also gave instructions to
others about the camera. All of that suffices to uphold the enhancement.
5. Rule 32 violations. Even if the calculation was correct, Samuel argues, the district
court erred by failing to follow Criminal Rule 32, which sets out several sentencing procedures.
The court, for example, did not ask whether Samuel and his attorney had read the presentence
report. See Fed. R. Crim. P. 32(i)(1)(A). Samuel concedes, however, that any Rule 32 “errors in
themselves may not be prejudicial,” and gives us no reason to think they were. Samuel Mullet
Br. 40. Harmless errors do not require new sentences.
6. Mathematical computation. The government proposed five tiers to reflect where each
defendant “fall[s]” on “a range of culpability.” R. 545 at 125. After describing its sentencing
considerations in detail, the district court adopted the tiered approach in the initial sentencing
proceeding. It sentenced one defendant (Samuel) to 180 months, four to 84 months, three to
60 months, two to 24 months, and the remaining six to a year and a day. Those in the lowest two
tiers had already completed their sentences by the time of the resentencing.
When discussing the eight defendants in the other three groups, the court noted during
resentencing it “was very careful [at the original sentencing] to group and rank the defendants
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according to . . . culpability . . . and . . . believe[d] it [was] still important to do that.” R. 732 at
76. The court decided as a result to determine sentences based on (1) the seriousness of each
defendant’s conduct, (2) this court’s decision reversing the hate crimes convictions, and (3) the
prior groupings into tiers. Taking all of this into account, the judge decided that Johnny Mullet
and Levi Miller’s sentences should decrease from 84 months to the newly applicable statutory
maximum of 60 months. To maintain the tiers and keep proportionality between them, the court
reduced the sentences of the other six defendants by the same proportion: 28%. Resorting to
this calculation, the defendants argue, was procedurally unreasonable, because it was “arbitrary,”
Lester Miller Br. 12, and “ma[de] no sense,” Samuel Mullet Br. 48.
That is a new-found objection. The defendants said nothing of the sort at the
resentencing proceeding, meaning that the strictures of plain error review apply. See United
States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc). This argument does not
satisfy that high bar. A district court may choose to “determine a defendant’s sentence in light of
a co-defendant’s sentence.” United States v. Simmons, 501 F.3d 620, 624 (6th Cir. 2007). If the
district court does so and wishes to keep sentences among the defendants relatively fair, it is hard
to believe that it could be wrong, let alone plainly wrong, to use proportions in doing so.
Samuel responds that the problem is that the district court “[f]ocus[ed] solely on a
mathematical formula,” which it cannot do. Samuel Mullet Br. 49. But the court expressly used
its calculation in the service of several objectives, including “reflect[ing] the seriousness of” each
defendant’s conduct. R. 732 at 78. And proscriptions against using a formula in sentencing
typically prohibit this court from letting math substitute for individualized appellate review. See
Gall, 552 U.S. at 47–49. They do not apply with quite the same force to the district court, which
has “plenary sentencing responsibilities,” United States v. Turner, 602 F.3d 778, 788 (6th Cir.
2010), and may reasonably compare the defendants’ culpability in setting fair sentences for each.
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B.
The defendants claim that their sentences were too long in relation to the seriousness of
the offenses and greater than necessary to satisfy the imperatives of federal sentencing law.
18 U.S.C. § 3553(a). We disagree. The sentences were substantively reasonable.
At the original sentencing, the district court addressed several factors that entered into its
choice of tiers and sentences. “None of the defendants,” it said, “has any prior record.” R. 545
at 143. Most have “very young children” and “are not likely to re-offend.” Id. The victims,
however, must “bear[] the emotional scars and probably will for the rest of their lives.” Id. It
deemed the imposed sentences “significant enough to punish . . . and to deter.” Id. at 149. The
district court’s percentage reductions from the original sentences meant these concerns affected
the new sentences. But the court did not leave it at that. At the second sentencing proceeding, it
reviewed “multiple considerations,” including “everything [it] c[ould] learn about each
defendant, [and] everything [it] c[ould] learn about [his or her] conduct.” R. 732 at 72–73. The
court made reasonable choices in balancing the relevant factors and setting the sentences.
Against this reasoning, the defendants fail to rebut the presumption of substantive
reasonableness that applies to their within-guidelines sentences (or in most instances belowguidelines sentences). See United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008); Vonner,
516 F.3d at 389–90. They argue the sentences create “unwarranted” disparities as compared to
the average sentences for defendants convicted nationwide of obstruction or hate crimes.
18 U.S.C. § 3553(a)(6). But because the point of the guidelines is to reduce disparities, general
statistics that cover a multitude of other crimes committed in a multitude of other ways do not
create an “unwarranted” disparity. See United States v. Waltman, 529 F. App’x 680, 685 (6th
Cir. 2013) (per curiam). Samuel also complains the court did not consider as mitigation that his
wife had recently passed away, among other personal tragedies. The court, however, said it
reviewed each defendant’s submissions, and in any event was not obligated to discuss everything
raised by every defendant. United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006). Lester
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Miller says that the court confused him with Lester Mullet, but the transcript makes clear that the
court knew about this potential confusion and steered clear of it.
For these reasons, we affirm.
Case: 15-3277 Document: 40-2 Filed: 05/04/2016 Page: 16 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-15-10093/USCOURTS-ca5-15-10093-0/pdf.json | [
[
"United States of America",
"Appellee"
],
[
"Randy Gene West",
"Appellant"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10093
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RANDY GENE WEST,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CR-189-1
Before JONES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Randy Gene West 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).
West 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 appellate review.
* 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 15, 2015
Lyle W. Cayce
Clerk
Case: 15-10093 Document: 00513309585 Page: 1 Date Filed: 12/15/2015
No. 15-10093
2
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: 15-10093 Document: 00513309585 Page: 2 Date Filed: 12/15/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_13-cv-03217/USCOURTS-cand-4_13-cv-03217-2/pdf.json | [
[
"Renie J. Arias",
"Petitioner"
],
[
"Tim Virga",
"Respondent"
]
] | 1
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United States District Court
Northern District of Californi
a
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
RENIE J. ARIAS,
Petitioner,
v.
TIM VIRGA,
Respondent.
Case No. 13-cv-3217-PJH
ORDER
Petitioner proceeds with a pro se petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. On October 28, 2014, respondent filed an answer. Petitioner has
been provided several extensions to file a traverse, yet despite nearly seven months, he
has still not filed a traverse. Petitioner has now filed motions to appoint counsel, for an
extension of time, and to view the lodged exhibits.
The Sixth Amendment's right to counsel does not apply in habeas corpus actions.
Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C. §
3006A(a)(2)(B) provides that in habeas cases, whenever “the court determines that the
interests of justice so require”, representation may be provided for any financially eligible
person. Petitioner has presented his claims adequately, and they are not particularly
complex. The interests of justice do not require appointment of counsel.
Petitioner has also requested copies of the documents lodged by respondent.
Petitioner states that he was in possession of the state record, but at some point, some of
his copies became lost. It appears that petitioner has unsuccessfully attempted to obtain
a new copy the record over the past seven months. The state court record is
Case 4:13-cv-03217-PJH Document 26 Filed 05/21/15 Page 1 of 2
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cket No.
Case 4:13-cv-03217-PJH Document 26 Filed 05/21/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_14-cv-02209/USCOURTS-caed-2_14-cv-02209-0/pdf.json | [
[
"William F. Russell",
"Plaintiff"
],
[
"United States of America",
"Defendant"
]
] | 1
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1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
WILLIAM F. RUSSELL,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
No.: 2:14-cv-02209-KJM-DAD
ORDER
Plaintiff filed a negligence action against defendant on September 23, 2015. (ECF
1.) On April 27, 2015, the parties participated in the court’s Voluntary Dispute Resolution
Program (VDRP) and reached settlement. See ECF No. 12. On May 5, 2015, the parties filed a
stipulated settlement agreement and proposed order approving the settlement. (ECF 13.) In the
settlement agreement, the parties request that this court retain jurisdiction to enforce the
settlement agreement. (Id. at 4.)
By this order, the court APPROVES the parties’ stipulation and dismisses the
action with prejudice. However, the court in its discretion declines to maintain jurisdiction to
enforce the terms of the parties’ settlement agreement. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 381 (1994); cf. Collins v. Thompson, 8 F.3d 657, 659 (9th Cir. 1993). Unless
there is some independent basis for federal jurisdiction, enforcement of the agreement is for state
courts. Kokkonen, 511 U.S. at 382.
Case 2:14-cv-02209-KJM-DAD Document 14 Filed 06/04/15 Page 1 of 2
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IT IS SO ORDERED
DATED: June 4, 2015.
Case 2:14-cv-02209-KJM-DAD Document 14 Filed 06/04/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-4_09-cv-00065/USCOURTS-alnd-4_09-cv-00065-1/pdf.json | [
[
"Amcor PET Packaging USA, Inc.",
"Defendant"
],
[
"Amcor Pet Packaging",
"Defendant"
],
[
"Peggy Douthard",
"Plaintiff"
],
[
"Glen Glover",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
GLEN GLOVER, as the
Administrator of the Estate of
PEGGY DOUTHARD,
Plaintiff,
v.
AMCOR PET PACKAGING, USA,
INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: 4:09-CV-65-VEH
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Peggy Douthard (“Ms. Douthard”) initiated this lawsuit against
Defendant Amcor PET Packaging USA, Inc. (“Amcor”) on December 11, 2008, in
the Circuit Court of Etowah County, Alabama. (Doc. 1 at Ex. A at Compl. at 1). On 1
January 13, 2009, Amcor removed this case to this court on the basis that it arises
under the Employee Retirement Income Security Act of 1974 (“ERISA”), and more
On January 19, 2010, a party substitution occurred due to the death of Ms.
1
Douthard. (Doc. 43; see also Doc. 34). As a result, Glen Glover, asthe administrator
of Ms. Douthard’s estate is now the real party plaintiff. (Id. at 1). However, the court
still uses Ms. Douthard’s name (as opposed to Mr. Glover, as administrator, or Ms.
Douthard’s estate) when referring to the plaintiff within this memorandum opinion.
FILED
2010 Feb-04 PM 03:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 1 of 28
specifically the Retirement Equity Act of 1984 (“REA”), 29 U.S.C. § 1055, which is
an amendment to ERISA. (Doc. 1). On December 14, 2009, Ms. Douthard filed an
amended complaint against Amcor. (Doc. 33).
Before the court are the following pending motions: Ms. Douthard’s Motion
for Summary Judgment on Appropriate Standard of Review (Doc. 23) (the “Standard
of Review Motion”) filed on October 23, 2009; Amcor’s Corrected Renewed Motion
for Summary Judgment and Response to Plaintiff’s Motion for Summary Judgment
on Appropriate Standard of Review (Doc. 25) (the “Renewed Motion”) filed on
November 5, 2009; Ms. Douthard’s Motion for Summary Judgment onBenefits (Doc.
27) (the “First Benefits Motion”) filed on November 18, 2009; and Ms. Douthard’s
Second Motion for Summary Judgment on Benefits (Doc. 29) (the “Second Benefits
Motion”) filed on December 8, 2009.
2
The parties have fully briefed these motions (see, e.g., Docs. 24, 30, 32, 36,
On September 3, 2009, the court denied without prejudice the parties’ prior
2
cross-motions for summary judgment. (Doc. 17). Ms. Douthard’s First Benefits
Motion and Second Benefits Motion are identical in their arguments. Ms. Douthard
filed her Second Benefits Motion to clarify that she is seeking summary judgment on
both counts included in her amended complaint, which was filed subsequent to her
First Benefits Motion. The parties have stipulated that if Ms. Douthard wins as to
count one (i.e., retirement and savings benefits), then she also wins as to count two
(i.e., pension benefits). Similarly, if she loses on count one, then she also does on
count two. (Docs. 35 at 7, 38, 40). The parties have further stipulated that the
amount of benefits at issue equals a combined total of $173,996.31 for both counts.
(Doc. 42 at 2 (i.e., $171,074.55 for count one plus $2,921.76 for count two)).
2
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 2 of 28
37), and they are all now under submission. For the reasons explained below, the
court concludes that Ms. Douthard’s Standard of Review Motion, First Benefits
Motion, and Second Benefits Motion are all due to be granted. Relatedly, Amcor’s
Renewed Motion is due to be denied.
II. BACKGROUND
3
At the heart of the parties’ dispute are whether Ms. Douthard is the widow of
George Douthard (“Mr. Douthard”) and whether Amcor properly paid the proceeds
of Mr. Douthard’s investment account to his named beneficiary—his daughter,
Angela Douthard (hereinafter “Angela” or “Angela Douthard”). Ms. Douthard
maintainsthat when Mr. Douthard passed away she was his widow because they were
never legally divorced. If this is true, then the REA mandates (in the absence of a
prior written consent executed by thatspouse agreeing to waive such benefit) that any
“qualified preretirement survivor annuity shall be provided” to Ms. Douthard, as Mr.
Douthard’s surviving spouse. 29 U.S.C. § 1055(a)(2). The record lacks any spousal
waiver executed by Ms. Douthard.
Mr. Douthard died on September 6, 2005. Mr. Douthard was employed by
Subject to some modifications, the court restates as its background here the 3
same summary that it used when it denied without prejudice the parties’ previously
filed cross-motions for summary judgment. (See Doc. 17 at 2-5 (footnotes and
citations omitted)).
3
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 3 of 28
Amcor at the time of his death. When he passed away, Mr. Douthard was also a
participant in the Amcor PET Packaging Savings and Investment Plan (the “Plan”)
and held a retirement savings account governed by the Plan. On October 6, 2004, Mr.
Douthard modified the information that he had on file with Amcor’s benefits
department and named his daughter, Angela Douthard (who is unrelated to Ms.
Douthard), as the beneficiary of this retirement savings account.
InApril or May of 2006, Ms. Douthard contacted Amcor’s benefits department,
asserting that she was the widow of Mr. Douthard and seeking a distribution to her
of his retirement assets. As proof of her claim, Ms. Douthard provided to Amcor’s
benefits department a copy of a marriage license dated October 19, 1961, listing Mr.
Douthard as the groom and Ms. Douthard as the bride. Ms. Douthard also produced
to Amcor’s benefits department a certificate of marriage confirming their marriage
on October 19, 1961.
Support for Angela Douthard’s claim to the proceeds included a copy a
marriage license issued by the State of Colorado on June 11, 1982, listing Mr.
Douthard as the groom and JoAnn Williams (Angela’s mother) as the bride, and Mr.
Douthard’s death certificate reflecting his marital status as widowed. As Angela
Douthard reported to Amcor, Ms. Douthard and her father, Mr. Douthard, were
divorced in the early 1970s, and Angela Douthard’s mother, JoAnn Williams, passed
4
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 4 of 28
away in June 1993. However, the record lacks any evidence of a divorce decree or
other court order dissolving the marriage between Mr. Douthard and Ms. Douthard.
Other proof favorable to Amcor’s position (that payment to Angela Douthard
was appropriate) were various tax forms and an Amcor job application dated April
2, 1979, that Mr. Douthard filled out in which he indicated his marital status assingle
as well as his last will and testament dated June 18, 2004, which contains the
statement that “I am not married nor am I involved in a common law marital
relationship.”
In June 2006, Amcor’s benefits department denied Ms. Douthard’s claim and
paid the Plan assets in the approximate amount of $170,700.53 to Angela. Ms.
Douthard retained legal counsel and, on November 18, 2007, her attorney renewed
Ms. Douthard’s demand for the retirement proceeds. Other correspondence and
additional documentation in support of Ms. Douthard’s claim then followed,
including a claimmade by Ms. Douthard in support of Social Securitywidow benefits
and an affidavit executed by Ms. Douthard attesting that she had never divorced Mr.
Douthard. Amcor stood by its decision to pay Angela Douthard, and thislawsuit then
followed.
5
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 5 of 28
III. STANDARD ON SUMMARY JUDGMENT4
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). Allreasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence issuch that a reasonable jury could
5
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
“Once the moving party has properly supported its motion for summary
judgment, the burden shifts to the nonmoving party to ‘come forward with specific
Although there are cross-motionsfor summary judgment filed by both parties 4
pursuant to Rule 56, the Eleventh Circuit recently noted that, due to the peculiar
standards of review for ERISA cases, Rule 56 practice may be unnecessary. See
Doyle v. Liberty Life Assur. Co., 542 F.3d 1352, 1363 n.5 (11th Cir. 2008). Other
district courts have similarly noted that the district court's role in an ERISA case is
fundamentally different than its ordinary role as a trial court. See, e.g., Providence
v. Hartford Life & Accident Ins. Co., 357 F. Supp. 2d 1341, 1342 n.1 (M.D. Fla.
2005) (“[T]he Court’s task is to review the benefit decision based on the
administrative record available to the decision maker at the time he or she made the
decision.”).
Rule 56 was recently amended in conjunction with a general overhaul of the
5
Federal Rules of Civil Procedure. The Advisory Committee was careful to note,
however, that the changes “are intended to be stylistic only.” Adv. Comm. Notes to
Fed. R. Civ. P. 56 (2007 Amends.) (emphasis supplied). Consequently, cases
interpreting the previous version of Rule 56 are equally applicable to the revised
version.
6
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 6 of 28
facts showing that there is a genuine issue for trial.’” International Stamp Art, Inc.
v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Although there are
cross-motions for summary judgment, each side must still establish the lack of
genuine issues of material fact and that it is entitled to judgment as a matter of law.
See Chambers &Co. v. Equitable Life Assur. Soc. of the U.S., 224 F.2d 338, 345 (5th
Cir. 1955); Matter of Lanting, 198 B.R. 817, 820 (Bankr. N.D. Ala. 1996). The court
will consider each motion independently, and in accordance with the Rule 56
standard. See Matsushita Elec. Indus. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-
88 (1986). “The fact that both parties simultaneously are arguing that there is no
genuine issue of fact, however, does not establish that a trial is unnecessary thereby
empowering the court to enter judgment as it sees fit.” See WRIGHT, MILLER &
KANE, FEDERAL PRACTICE AND PROCEDURE § 2720, at 327-28 (3d ed. 1998).
IV. ANALYSIS
A. Applicable Standard of Review
As a threshold issue, the parties still dispute what is the appropriate standard
of review for the court to apply. Ms. Douthard maintains that de novo review is
called for while Amcor contendsthat discretionary or arbitrary and capriciousreview
7
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 7 of 28
is required.
6
“While ERISA placesthe burden upon [Ms. Douthard] to prove an entitlement
to [] benefits under the [Plan], see Horton, 141 F.3d at 1040, [Amcor] bears the
burden of proving that the arbitrary and capricious standard of review applies.” See
Anderson v. Unum Life Ins. Co. of America, 414 F. Supp. 2d 1079, 1095 (M.D. Ala.
2006) (citing Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir.2002); Sharkey v.
Ultramar Energy Ltd., 70 F.3d 226, 229 (2d Cir. 1995)). Based upon the more
developed record, including a copy of the Plan and other materials discussed more
fully below, the court agrees with Ms. Douthard that de novo review is proper.
As the Eleventh Circuit explained in Jett v. Blue Cross and Blue Shield of
Alabama, Inc., 890 F.2d 1137 (11th Cir. 1989), regarding the de novo versus abuse
of discretion distinction:
The recent Supreme Court case which holds that a de novo standard of
review is proper under some plans validates the prior law of this Circuit
that the arbitrary and capricious standard of review is appropriate here.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S. Ct. 948,
103 L. Ed. 2d 80 (1989). The court held that
As a result of the Supreme Court’s decision in Glenn v. Metro. Life Ins. Co.,
6
___ U.S. ___, 128 S. Ct. 2343, 171 L. Ed. 2d 299 (2008), as interpreted by the
Eleventh Circuit in Doyle, only two ERISA standards of review now exist in the
context of challenging a plan administrator’s claim decision—either de novo or
arbitrary and capricious. Doyle, 542 F.3d at 1359 (“As we now show, Glenn
implicitly overrules and conflicts with our precedent requiring courtsto review under
the heightened standard a conflicted administrator’s benefits decision.”).
8
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 8 of 28
a denial of benefits challenged under [29 U.S.C.A.] §
1132(a)(1)(B) is to be reviewed under a de novo standard
unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits
or to construe the terms of the plan.
Firestone, 109 S. Ct. at 956.
The plan in this case does give the administrator of the plan
“discretionary authority to determine eligibility for benefits [and] to
construe the [plan's] terms.” Id. For example, the plan states,
As a condition precedent to coverage, it is agreed
that whenever the Claims Administrator makes reasonable
determinations in the administration of the [plan]
(including, without limitation, determinations whether
services, care, treatment, or supplies are Medically
Necessary . . .) such determinations shall be final and
conclusive.
The plan’s descriptive booklet, provided to covered employees,
containsthislanguage: “Blue Cross and Blue Shield of Alabama has the
exclusive right to interpret the provisions of th[is] Plan, so its decision
is conclusive and binding.” Accordingly, the arbitrary and capricious
standard of review applies here. Firestone, 109 S. Ct. at 956; Guy v.
Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37, 38-39 (11th
Cir. 1989).
Jett, 890 F.2d at 1138-39 (emphasis added). Therefore, under Jett, the court looked
at the plan first and then the descriptive booklet when evaluating the standard of
review issue. See also Cagle v. Bruner, 112 F.3d 1510, 1517 (“Accordingly, we look 7
7
In Jett, the parties agreed that the arbitrary and capricious standard of review
applied. Id., 809 F.2d at 1138 (“The parties agree that a court reviewing Blue Cross’
denial of benefits under this plan must apply an arbitrary and capricious standard.”)
9
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 9 of 28
to all of the plan documents to determine whether the plan affords the Fund enough
discretion to make the arbitrariness standard applicable.”) (emphasis added).
8
In support of its Renewed Motion, Amcor has included a copy of the Plan,
which provides in relevant part:
16.1 The Administrative Committee
As provided in subsection 1.5, the Plan is administered by the
Administrative Committee. The number and individual members of the
Administrative Committee shall be determined in accordance with the
Administrative Committee’s bylaws.
16.2 The AdministrativeCommittee’s General Powers, Rights, and
Duties
The Administrative Committee shall have all powers necessary
and appropriate to discharge its duties under the Plan, subject to the
limitations set forth in the Administrative Committee’s bylaws, which
powers shall be exercised in the sole and absolute discretion of the
Administrative Committee, including, but not limited to, the following:
(a) To construe and interpret the provisions of the Plan
and to make factual determinations thereunder,
Interestingly, in Cagle, the issue was whether the failure to include
8
discretionary language in the descriptive booklet was determinative of the standard
of review issue. Id., 112 F.3d at 1517 (“In opposition, both Genesis and Bruner argue
that the plan’s Summary Plan Description (“SPD”), not other plan documents, must
contain the discretionary language in order for the Fund to receive the deference
required under the arbitrariness standard. We reject that argument.”). The Cagle
court went on to hold that the arbitrary and capriciousstandard applied because “[t]he
Declaration of Trust in th[at] case reserve[d] ‘full authority to determine eligibility
requirements for benefits,’ while the Rules and Regulations reserve[d] discretion in
the Fund to interpret ambiguous sections of the plan.” Id.
10
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 10 of 28
including the power to determine the rights or
eligibility under the Plan ofEmployees, Participants,
or any other persons, and the amounts of their
benefits (if any) under the Plan, and to remedy
ambiguities, inconsistencies or omissions, and such
determinations by the Administrative Committee
shall be binding on the parties.
(Doc. 25 at Ex. A at Ex. 3 at 56 (emphasis added)). Therefore, the Plan confirms that
the Administrative Committee is bestowed with discretionary authority in
administering claims.
Consistent with the Plan, the contents of the 2006 Summary Plan Description
(“SPD”) for the Plan (see Doc. 25 at Ex. A at Ex. 5 at 1) also indicate that the Plan
is administered by the Administrative Committee and supports the use of a
discretionary standard when a decision is made by that particular body. More
specifically, the SPD provides in relevant part:
Plan Administrator
The Plan is administered by the Amcor PET Packaging USA, Inc.
Employee Benefits Administrative Committee (the “Administrative
Committee”). All questions and request for information about the Plan,
its administration or your benefits should be addressed to the
Administrative Committee. The Administrative Committee and its
representatives shall have maximum discretionary authority permitted
by law to interpret, construe and administer the Plan, to make
determinations regarding Plan participation, benefit eligibility and to
determine the validity of benefit claims and resolve any claim disputes.
The decision of the Administrative Committee and its representatives
will be given the maximum deference permitted by law.
11
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 11 of 28
(Id. at 13 (emphasis added)). Accordingly, the SPD undoubtedly includes
discretionary language in the context of a claim determination made by the
Administrative Committee.
Here, while the Administrative Committee retains full discretion, it is
undisputed that it did not decide Ms. Douthard’s claim; instead, the record reflects
that Michael Katz (“Mr. Katz”), as outside counsel for Amcor (Doc. 27 at Ex. 4 at
Amcor-0010), and Joseph A. Zakrajsek (“Mr. Zakrajsek”), Amcor’s Compensation
and Benefits Manager and a member of the Administrative Committee, (Doc. 23-8
at 13 ¶ 1; Doc. 25 at Ex. A ¶¶ 1-2), were the only persons involved in the decisionmaking process concerning Ms. Douthard’s claim. As a result, in its Renewed
Motion, Amcor attempts to establish the existence of a valid delegation of the
AdministrativeCommittee’s authorityunder the Plan to Amcor’s benefits department,
including Mr. Zakrajsek. (See, e.g., Doc. 25 at 9-10 ¶ 23 (“The Committee’s Bylaws
state that ‘it is expected that the Committee will delegate some of its Administrative
Powers to others, particularly to the Manager, Benefits and Compensation and his or
her staff.’”) (footnote and citation omitted); id. at 10 ¶ 24 (“The Administrative
Committee has delegated the day-to-day operation and administration of the Plan to
Amcor’s benefits department (the “Plan Administrator”) (citation omitted)).
Ms. Douthard contends that any purported delegation of the Administrative
12
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 12 of 28
Committee’s discretionary authority isineffective. Based upon a close inspection of
the applicable language from the Administrative Committee’s bylaws as well as
relevant case law, including the Eleventh Circuit’s decision in Baker v. Big Star Div.
of the Grand Union Co., 893 F.2d 288 (11th Cir. 1989), this court determines that the
record lacks documentation substantiating a valid delegation of the Administrative
Committee’s discretionary authority to decide claims.
The “DELEGATION OF RESPONSIBILITY” section of the Administrative
Committee’s bylaws states in full:
The Plans permit the delegation of fiduciary responsibilities by the
Committee, as long as (i) the delegation is in writing and (ii) the person
to whom duties are delegated acknowledges in writing that the person
is a fiduciary with respect to the applicable Plan. Under ERISA, if a
fiduciary prudently delegates any of its responsibilities, the delegating
fiduciary is not liable for the acts (or failures to act) of the person who
accepts the delegation. The delegating fiduciary does, however, remain
liable for monitoring the actions of the fiduciary to whom the duty was
delegated.
In addition to delegation of fiduciary responsibilities, the Committee
may delegate any of its non-fiduciary responsibilities. With respect to
a delegation of non-fiduciary responsibilities, it is not legally required
that any such delegation be in writing, but it is strongly recommended
that such delegations be made in writing.
It is recognized that many of the Committee’s Administrative Powers
involve day-to-day administrative tasks associated withmaintenance and
operations of the Plans. It is also recognized that it is impractical for
members of the Committee to undertake all such activities.
Accordingly, it is expected that the Committee will delegate some of its
13
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 13 of 28
Administrative Powers to others, particularly to the Manager, Benefits
and Compensation and his or her staff. With respect to any
Administrative Powers that are delegated, the Committee shall obtain
reports from time to time from the delegatees, addressing the actions
taken.
(Doc. 25 at Ex. A at Ex. 1 at 6-7 (emphasis added)). Therefore, the bylaws require
that a delegation of a fiduciary function be in writing and acknowledged by the
purported delegatee. In contrast, non-fiduciary functions, such as administrative
tasks, do not require a written document to be validly delegated.
However, Amcor has presented no evidence of a written delegation indicating
that either Mr. Katz or Mr. Zakrajsek had accepted responsibility for conducting
fiduciary activities on behalf of the Administrative Committee, such as resolving
disputed claims before he or they dealt with Ms. Douthard. See Anderson, 414 F.
Supp. 2d at 1096 (“Unum is entitled to a deferential standard of review, whether that
standard is the heightened one or the more deferential arbitrary and capricious
standard of review, only if it, or an authorized party, made the challenged benefits
determination.”) (emphasis added).
As the Eleventh Circuit explained the fiduciary/non-fiduciary distinction with
respect to determining the ERISA standard of review in Baker:
Appellee Grand Union argues that, “[r]egardless of whether
Connecticut General may be classified as a “fiduciary” under ERISA ...
there is no dispute whatsoever that Grand Union had delegated to
14
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 14 of 28
Connecticut General the authority ‘to determine eligibilityfor benefits.’”
Appellee Grand Union would have us ignore the trust law principles
upon which the Bruch decision is based and import greater significance
to Justice O’Connor's use of the word “or” than is warranted. True, the
Supreme Court held that a de novo standard applies unless “the benefit
plan gives the administrator or fiduciary discretionary authority,” Id.
(emphasis added), yet it is clear that an administrator with discretionary
authority is a fiduciary. See 489 U.S. at ----, 109 S. Ct. at 955, discussed
supra at section I.
Conversely, one who is not a fiduciary is also not “an
administrator with discretionary authority” under 29 U.S.C. §
1002(16)(A) and (21)(A). “Administrators” are distinguished from
“fiduciaries” by the former’s lack of discretionary authority or
discretionary control”; therefore, any entity or person found not to be an
ERISA “fiduciary” cannot be an “administrator with discretionary
authority” subject to the arbitrary and capricious standard.
Grand Union makes essentially the same argument that was
rejected by the Supreme Court in Bruch. In Bruch, Firestone “argue[d]
that as a matter of trust law the interpretation of the terms of a plan is an
inherently discretionary function.” 489 U.S. at ----, 109 S. Ct. at 954.
Similarly, Grand Union argues that since Connecticut General has the
power to make initial eligibility determinations “‘in accordance with the
terms and conditions of the Plan,’” Connecticut General’s role is
“inherently discretionary.” As discussed above, Grand Union urges a
far too facile reading of Bruch than can be sanctioned by this court. Just
as Firestone’s “inherently discretionary” task of construing its benefits
plan terms was insufficient to support a more deferential standard of
judicial review under trust law principles, Connecticut General’s
“inherently discretionary” task of making initial eligibility
determinations “according to the terms of the Plan” does not trigger the
application of an arbitrary and capricious standard of review under
Bruch. See Moon v. American Home Assur. Co., 888 F.2d 86 (11th
Cir.1989) (rejecting a similar argument and finding that de novo
standard ofreview applies). Grand Union, not Connecticut General, was
given the authority to review claim denials; nor was Connecticut
15
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 15 of 28
General given the power to formulate policy or terms of eligibility under
the Plan.
Baker, 893 F.2d at 291-92 (emphasis added).
Similar to Baker, in this instance, “[the Administrative Committee], and not
[Mr. Katz or Mr. Zakrajsek ], was given the [fiduciary] authority to review claim
denials; nor was [Mr. Katz or Mr. Zakrajsek] given the [fiduciary] power to
formulate policy or terms of eligibility under the Plan.” Further, no evidence of a
written delegation of fiduciary authority to either Mr. Katz or Mr. Zakrajsek
consistent with the Administrative Committee’s express requirements under its
bylaws exists in the record. At best, Amcor has shown only that some of the nonfiduciary “day-to-day administrative tasks associated with maintenance and
operations of the Plans” may have been delegated to Amcor’s benefits department,
including Mr. Zakrajsek.
As the district court similarly explained in Anderson:
On the other hand, if an unauthorized party made the benefits
determination, the denial of plan benefits is reviewed under the de novo
standard. See Rodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d
580, 584 (1st Cir. 1993); see also Mazzacoli v. Continental Cas. Co.,
322 F. Supp. 2d 1376, 1381 (M.D. Fla.2004) (“Eleventh Circuit
precedent is clear that where an unauthorized party denies plan benefits,
that denial isreviewed under the de novo standard.”) (citing Baker v. Big
Star Div. of the Grand Union Co., 893 F.2d 288, 291 (11th Cir. 1989)).
An authorized party is one who has received a proper delegation
16
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 16 of 28
of powers. Pursuant to 29 U.S.C. § 1105, a plan administrator may
delegate its fiduciary duties to a third party if the plan provides a clear
process for such delegation. As aptly explained by the First Circuit, 29
U.S.C. § 1105 “allows named fiduciaries to delegate responsibilities ...
through express procedures provided in the plan. To be an effective
delegation of discretionary authority so that the deferential standard of
review will apply, therefore, the fiduciary must properly designate a
delegate for the fiduciary’s discretionary authority.” Rodriguez-Abreu,
986 F.2d at 584.
Anderson, 414 F. Supp. 2d at 1096 (emphasis added) (footnote omitted).
Therefore, neither Mr. Katz, Mr. Zakrajsek, nor Amcor’s benefits department
possessed the Administrative Committee’s discretionary authority to determine
disputed claims because no evidence of a proper delegation of such fiduciary
responsibility exists in the record. Accordingly, Ms. Douthard is correct that a de
novo standard of review applies to the rejection of her surviving spouse claim.
B. Application
1. De Novo Review
Concerning de novo review, the Eleventh Circuit has explained:
De novo review, which we employ in reviewing “no-discretion”
plan decisions, offers the highest scrutiny (and thus the least judicial
deference) to the administrator's decision. In fact, we accord no
deference there, since, no judgment/discretion was exercised in making
the determination (i.e., there is no discretion to which we would defer).
Williams v. BellSouth Telecommunications, Inc., 373 F.3d 1132, 1137 (11th Cir.
2004), overruled on other grounds by Doyle, supra, 542 F.3d at 1360 (“But we hold
17
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 17 of 28
that Glenn implicitly overrules our precedent to the extent it requires district courts
to review benefit determinations by a conflicted administrator under the heightened
standard.”). Further, under a de novo standard of review, the scope of evidence that
this court may consider in reaching its decision is not limited to simply those facts
that were before the administrator at the time of the decision. See Kirwan v. Marriott
Corp., 10 F.3d 784, 789 (11th Cir. 1994) (“In this circuit, a district court conducting
a de novo review of an Administrator’s benefits determination is not limited to the
facts available to the Administrator at the time of the determination.”) (footnote
omitted).
Having studied the record on a de novo basis, the court concludes that the
rejection of Ms. Douthard’s claim was wrong. Relatedly, the court determines that
the evidence establishes that Ms. Douthard is entitled to an award of benefits under
the Plan as Mr. Douthard’s surviving spouse.
In particular, the court relies upon the marriage license and certificate between
Mr. Douthard and Ms. Douthard that are part of the record. (Doc. 25 at Ex. A at Exs.
8, 9). With respect to the marriage certificate in particular, the court notes that it is
signed by the Judge of Probate and reflects a marriage date of October 20, 1961, and
a recorded date of June 27, 1974. (Id. at Ex. 9). On summary judgment, Amcor has
not challenged the authenticity or validity of this certificate. (See, e.g., Doc. 25 at 6
18
Case 4:09-cv-00065-VEH Document 45 Filed 02/04/10 Page 18 of 28
¶ 6 (“Plaintiff also enclosed a Certificate of Marriage which purports to show that
George and Peggy Douthard were in fact married on October 19, 1961));see also Ala.
Code § 30-1-13 (“A certified copy [of a marriage certificate] is presumptive evidence
of the fact [of marriage]”).
The court also bases its decision upon the affidavit of Ms. Douthard, executed
on September 18, 2008, in which she swears that, although she and Mr. Douthard
became separated in 1971, she was “unaware that [her] husband [had] married a
second time” and that he “had a daughter” until her lawyer told her, and she is
“certain that [she] never received a divorce from [her] husband.” (Doc. 25 at Ex. A
at Ex. 19 at 1-2 (emphasis added)). Ms. Douthard also explains that she and Mr.
Douthard had two children together, Alando and Damonn, and that, beginning around
1971, “[t]he boys lived with [her] husband in Denver every summer.” (Id. at 1). Ms.
Douthard also documents her efforts to advise Amcor about her claim for benefits as
Mr. Douthard’s surviving spouse. (Id.).
This sworn-to and detailed evidence isin sharp contrast to the vaguely-worded
hearsay statement contained in Mr. Zakrajsek’s affidavit in which he states that
Angela Douthard “also informed [him] that George and Peggy Douthard were
divorced in the early 1970s.” (Id. at Ex. A ¶ 11). Further, nowhere in the record does
Angela Douthard, or any another witness, provide an affidavit or declaration that
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establishes the occurrence of a divorce between Ms. Douthard and Mr. Douthard,
including when it took place and in which jurisdiction. Thus, Amcor has failed to
rebut Ms. Douthard’s affidavit with any head-on admissible evidence establishing
that Ms. Douthard and Mr. Douthard ever obtained a divorce.
Relatedly, the various tax forms and the Amcor job application dated April 2,
1979, that Mr. Douthard filled out in which he showed his marital status as single as
well as his last will and testament dated June 18, 2004, in which he indicated that “I
am not married nor am I involved in a common law marital relationship” are
insufficient to overcome the undisputed affidavit evidence from Ms. Douthard
confirming the ongoing status of her marriage to Mr. Douthard.
First, Mr. Douthard’s Amcor job application does not reflect that it wassigned,
much less done so under oath. (Doc. 25 at Ex. A at Ex. 11). Second, the tax forms
executed by Mr. Douthard certify only that:
Under penalties of perjury, I certify that I am entitled to the number of
withholding allowances claimed on this certificate or, if claiming
exemption from withholding, that I am entitled to claim the exempt
status.
(Doc. 25 at Ex. A at Ex. 12; id. at Ex. 13 at 1-2 (emphasis added)). Therefore, the
marital status information is not included within the contents of the tax form
certification.
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Also, the marital statussection instructs the taxpayer to “check the Single box”
“If married, but legally separated[.]” (Doc. 25 at Ex. A at Ex. 12; id. at Ex. 13 at 1-
2). As Ms. Douthard has sworn that she and Mr. Douthard were separated in 1971,
the fact that Mr. Douthard indicated in 1998 (after his second wife died) that he was
single issubject to more than one interpretation, and regardless does not affirmatively
establish under oath that Mr. Douthard ever divorced Ms. Douthard. (Doc. 25 at Ex.
A at Ex. 13 at 2).
Third, the declaration contained in Mr. Douthard’s will states:
I, GEORGE G. DOUTHARD, the Testator, sign my name to this
instrument this 18th day of June, 2004, and being first duly sworn, do
hereby declare to the undersigned authority that I sign and execute this
instrument as my Last Will and that I sign it willingly, that I execute it
as my free and voluntary act for the purposestherein expressed, and that
I am eighteen years of age or older, of sound mind, and under no
constraint or undue influence.
(Doc. 25 at Ex. A at Ex. 14 at 7 (emphasis added)). Accordingly, Mr. Douthard does
not attest to the truth of any statements made in his will, but rather only about age, his
state of mind, and the voluntariness of his signature.
In summary, the information included in the administrative record and relied
upon by Amcor on cross-motions for summary judgment is insufficient to create a
triable issue asto the continued validity of Ms. Douthard’s marriage to Mr. Douthard.
Accordingly, Ms. Douthard is entitled to summary judgment.
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Alternatively, summary judgment in favor of Ms. Douthard is appropriate
because, for the most part, Amcor bases its position on summary judgment with
respect to Ms. Douthard’s claimfor benefits entirely upon the arbitrary and capricious
standard of review and makes only nominal efforts to oppose summary judgment
under a de novo standard. For example, in its opening brief, although Amcor initially
argues that the benefits decision was de novo correct (Doc. 25 at 13-15), the bulk of
its brief is devoted to arbitrary and capricious review. (Doc. 25 at 15-29; id. at 15
(“Even if one were to assume arguendo that the Plan Administrator’s decision was
de novo wrong, the Court’s inquiry would not stop there.”); id. at 29 (“Rather, the
undisputed evidence shows that the Plan Administrator’s decision to deny Plaintiff’s
claim for benefits was neither arbitrary nor capricious.”)).
Also, in its opposition to Ms. Douthard’s First Benefits Motion, Amcor does
not even attempt to analyze the record under a de novo standard; instead it only
contends that de novo review should not apply. (See Doc. 30 at 16-19; id. at 19
(“Rather, the undisputed evidence shows that the Plan Administrator’s decision to
deny Plaintiff’s claim for benefits was neither arbitrary nor capricious.”)). The court
is under no independent obligation to develop grounds in opposition to summary
judgment on behalf of Amcor as “the onus is upon the parties to formulate
arguments[.]” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
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1995) (citation omitted); see also Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322
(11th Cir. 2001) (finding claim abandoned when argument not presented in initial
response to motion for summary judgment). Therefore, the paucity of Amcor’s
response to a de novo assessment of its treatment of Ms. Douthard’s claim essentially
concedes the issue and provides further justification for the entry of summary
judgment in favor of Ms. Douthard.
2. Arbitrary and Capricious Review
While this court has concluded that the appropriate standard of review is de
novo, this court alternatively determines that summary judgment in favor of Ms.
Douthard is called for even under the more deferential arbitrary and capricious
standard. “A decision to deny benefits is arbitrary and capricious if no reasonable
basis exists for the decision.” Shannon v. Jack Eckerd Corp., 113 F.3d 208, 209
(11th Cir. 1997) (emphasis added) (citing Jett, 890 F.2d at 1139).
Here, no reasonable basis exists in the administrative record for Amcor’s
handling of the competing claims made by Ms. Douthard and Angela over Mr.
Douthard’s retirement benefits. In particular, the court cannot understand whyAmcor
did not proceed with an interpleader lawsuit and pay the disputed funds into court
when it first learned of the conflict between Ms. Douthard and Angela over Mr.
Douthard’s account. See, e.g., DaimlerChrysler Corp. Healthcare Benefits Plan v.
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Durden, 448 F.3d 918, 920 (6th Cir. 2006) (“This appeal involves an interpleader
action filed by a pension plan seeking a declaration of which of two claimants is
decedent, Douglas Durden’s [,] surviving spouse.”); Metropolitan Life Ins. Co. v.
Hardin, 23 F. Supp. 2d 934, 935 (S.D. Ind. 1998) (“MetLife then filed this
interpleader action to resolve the conflicting claims.”); cf. Dunlap v. BellSouth
Telecommunications, Inc., 431 F. Supp. 2d 1210, 1216 (M.D. Ala. 2006) (“Second,
BellSouth says it has discharged its obligations under the plans by making payment
to Donna Lynn in good faith with no notice of a competing claim, and is therefore
discharged from any further liability.”) (emphasis added); Dunlap, 431 F. Supp. 2d
at 1217 (“Reviewing information available when Curtis died, BellSouth had no
evidence indicating that Marion was the surviving spouse.”).
Instead, Amcor blindly accepted, without conducting a good faith
investigation, the hearsay and ambiguously-worded statement made by a purported
beneficiary (with a direct financial interest in the outcome and without any indication
that she possessed personal knowledge of the material facts) to Mr. Zakrajsek about
the status of her father’s first marriage to Ms. Douthard over the evidence of a valid
marriage certificate from Ms. Douthard. In fact, the record showsthat it was not until
October 13, 2008 (after Amcor had already rejected Ms. Douthard’s claim and she
had retained legal counsel) that Amcor even asked Angela if she “[w]ould [] possibly
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know where Peggy and George were divorced or have a copy ofthe divorce decree?”
9
(Doc. 27-7 at Amcor-0070). Further, for the reasons discussed in section IV.B.1,
supra, the additional records that Amcor relies upon do not contradict the ongoing
validity of Mr. Douthard’s marriage to Ms. Douthard.
Also, this court notes, that as of January 4, 2006, Mr. Zakrajsek expressed
concern to Mr. Katz about “[t]his case [] becoming more complicated and time
consuming than originally expected but” reassured Mr. Katz that “it [was] Amcor’s
intent to reimburse in full the cost of [his] firm’s services.” (Doc. 27-6 at Amcor0059). Therefore, perhaps a concern over the additional costs associated with
administering Mr. Douthard’s retirement benefits explains Amcor’s rashness in
rejecting Ms. Douthard’s competing claim, which Mr. Zakrajsek subsequently
became aware of on or about May 18, 2006, when he received a copy of the marriage
license between Ms. Douthard and Mr. Douthard. (Doc. 27-3 at Amcor-0004 (“As
if this case can’t get any stranger, I received in the mail yesterday a copy of a
marriage license that shows the groom as George Douthard and the bride as Peggy
Carol Know.”) (emphasis added); id. (“I can send this to you for your file, but if this
person is really his spouse, which I cannot determine at this point, this adds a whole
Apparently, this particular request of Angela did not prove to be fruitful for
9
Amcor or more specific information about the supposed divorce between Ms.
Douthard and Mr. Douthard would have been filed by it on summary judgment.
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new complexity to the case.”) (emphasis added); id. (“I do not know now who may
be entitled to these funds.”) (emphasis added)).
Furthermore, this court agrees with Ms. Douthard that the record’s silence
about her rights under REA illustrates the unreasonableness of Amcor’s handling of
her claim. Particularly bothersome to this court is an email from Mr. Katz sent in
response to a message fromMr. Zakrajsek dated June 27, 2006, which establishes that
Amcor’s “legal strategy” was apparently to let Ms. Douthard’s time run out on
claiming the disputed funds under Colorado law, rather than verify the legitimacy of
her status as Mr. Douthard’s widow, and relatedly, as an REA claimant:
Joe:
Sorry for not getting back to you promptly on this. Please feel free to
distribute the funds to the named beneficiary. Because of the possible
emergence of a former spouse claiming the money, I wanted to make
sure that the time limitation for a spouse filing had expired under
Colorado law.
Under CRS 15-11-205, a spouse has the later of nine months after date
of death or six months after appointment of the personal representative
of the estate to file for the augmented estate election. George died on
September 6, 2005 so the magic date would be June 6, 2006. We know
the personal representative was appointed on October 4, 2005, adding
six months would make it April 4, 2006. Therefore, the latest date of
June 6 is now gone so there should be no concern about paying out the
money.
(Doc. 27-3 at Amcor-0010 (emphasis added)).
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Delaying payment in the hopes of extinguishing Ms. Douthard’s potential
rights as a former spouse under Colorado law, rather than investigating the validity
of her REA claim under federal law as the widow of Mr. Douthard, constitutes
arbitrary and capricious conduct. Relatedly, the record conclusively establishes that
Ms. Douthard was not afforded “a reasonable opportunity for a full and fair review”
of her claim, in contradiction of the Plan’s express requirements regarding benefit
determinations. (Doc. 25 at Ex. A at Ex. 3 at 58 § 16.9; see also Doc. 27-3 (“ I would
like to close the George Douthard death file . . . . I heard no more from the former exspouse of Mr. Douthard, so I am comfortable with moving forward.”)). Accordingly,
summary judgment in favor of Ms. Douthard is alternatively proper even under the
less demanding arbitrary and capricious standard.
V. CONCLUSION
In sum, Ms. Douthard’s Standard ofReviewMotion,First Benefits Motion, and
Second Benefits Motion are due to be granted, and Amcor’s Renewed Motion is due
to be denied. Alternatively, summary judgment in favor of Ms. Douthard is
appropriate under the lessstringent arbitrary and capriciousstandard. The court will
enter an order consistent with this memorandum opinion.
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DONE and ORDERED this the 4th day of February, 2010.
VIRGINIA EMERSON HOPKINS
United States District Judge
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-05-03432/USCOURTS-ca8-05-03432-0/pdf.json | [
[
"T.D.Q.",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | 1
The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3432
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
T.D.Q., *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: October 6, 2006
Filed: October 17, 2006
___________
Before MURPHY, BYE, and MELLOY, Circuit Judges.
___________
PER CURIAM.
In 2004 the district court1
found T.D.Q. (then age 16) to be a juvenile
delinquent, pursuant to a written plea agreement in which T.D.Q. admitted guilt to one
count of first-degree burglary, in violation of 18 U.S.C. §§ 1153, 5032, and S.D.
Codified Laws § 22-32-1. The district court sentenced him to 4 years probation, but
in January 2005, the court revoked probation after T.D.Q. violated several probation
conditions, and sentenced him to 3 months in prison and 24 months of juveniledelinquent supervision. While T.D.Q. was serving his juvenile-delinquent
Appellate Case: 05-3432 Page: 1 Date Filed: 10/17/2006 Entry ID: 2100027
-2-
supervision, the probation office petitioned to revoke supervision based on an alleged
violation of T.D.Q.’s supervision conditions. After a hearing at which T.D.Q.
admitted to the alleged violation, the court revoked juvenile-delinquent supervision
and imposed a new sentence of 18 months imprisonment. In doing so, the court
commented on the Chapter 7 Guidelines recommended revocation range, T.D.Q.’s
prior violations while on supervision, the failure of alternative punishments to
rehabilitate him, and the need to protect the community. T.D.Q. appeals, arguing that
the sentence is unreasonable because the district court did not recognize the relevant
sentencing factors under 18 U.S.C. § 3553(a).
The revocation sentence was not unreasonable. See United States v. Tyson, 413
F.3d 824, 825 (8th Cir. 2005) (per curiam) (revocation sentences are reviewed for
unreasonableness in accordance with United States v. Booker, 543 U.S. 220 (2005)).
The sentence was within authorized limits, see 18 U.S.C. § 5037(c)(2)(A), (d)(5), and
the district court considered appropriate factors in imposing it, see United States v.
K.R.A., 337 F.3d 970, 974-75 (8th Cir. 2003) (Guidelines themselves do not apply
directly to juveniles; § 5037 is starting point for determining dispositional order in
juvenile matters); cf. United States v. Franklin, 397 F.3d 604, 606-07 (8th Cir. 2005)
(all that is required is evidence that court considered relevant matters, not that court
made specific findings on each § 3553(a) factor; 24-month revocation sentence, where
Guidelines recommended 8-14 months, was not abuse of discretion where transcript
showed court was aware of defendant’s multiple violations of supervised-release
conditions and of Guidelines range and statutory maximum); United States v. White
Face, 383 F.3d 733, 740 (8th Cir. 2004) (if sentencing judge references some
§ 3553(a) considerations, appellate court is ordinarily satisfied district court was
aware of entire contents of statute).
Accordingly, we affirm. We grant counsel’s motion to withdraw on condition
that he show that he has informed T.D.Q. of the procedures for petitioning the
Appellate Case: 05-3432 Page: 2 Date Filed: 10/17/2006 Entry ID: 2100027
-3-
Supreme Court for certiorari, in compliance with Part V of our plan to implement the
Criminal Justice Act.
______________________________
Appellate Case: 05-3432 Page: 3 Date Filed: 10/17/2006 Entry ID: 2100027 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_06-cv-04133/USCOURTS-cand-4_06-cv-04133-1/pdf.json | [
[
"Tien Pham",
"Petitioner"
],
[
"James Tilton",
"Respondent"
]
] | 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
TIEN PHAM,
Petitioner, No. C 06-4133 PJH
v.
ORDER DENYING PETITION FOR
JAMES TILTON, Warden, WRIT OF HABEAS CORPUS
Respondent.
_________________________________/
Before this court is a petition for writ of habeas corpus filed by state prisoner, Tien
Pham (“Pham”), pursuant to Title 28, section 2254 of the United States Code. Pham seeks
federal habeas relief on the ground that there was insufficient evidence to support the gang
enhancement allegations and that a denial of his petition would be a violation of his due
process rights under the Fourteenth Amendment. Having reviewed the parties’ papers, the
record, and having carefully considered their arguments and the relevant legal authorities,
the court hereby DENIES Pham’s petition.
BACKGROUND
I. Procedural History
On June 30, 2004, Pham and co-defendant Hoang Nhan Do Trinh (“Trinh”) were
each convicted of three counts of attempted murder, under California Penal Code section
187 and section 664, subdivision (a), following a bench trial before the Santa Clara
Superior Court of California. As to each of the attempted murder counts, the trial court also
found true the allegations of gang enhancement under California Penal Code section
186.22, subdivision (b)(1), the allegation that Pham had used a deadly and dangerous
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Because some of the victims share a last name, this court will refer to the parties by their
first names. This court does so for ease of reference and clarity, not out of any disrespect
for them. See U.S. v. Cabaccang, 481 F.3d 1176, 1179 n.1 (9th Cir. 2007).
2
weapon, as defined under California Penal Code section 12022, subdivision (b)(1), and the
allegation that Pham had personally inflicted great bodily injury, as defined under California
Penal Code section 12022.7, subdivision (a). On September 10, 2004, Pham was
sentenced to state prison for a term of twenty-eight years and four months. This sentence
included a ten-year term for the gang enhancement.
On appeal to the Sixth Appellate District for the Court of Appeal of the State of
California, Pham challenged the sufficiency of the evidence to support the attempted
murder counts and the gang enhancement allegations. The court of appeal affirmed
Pham’s convictions in an unpublished opinion filed on September 26, 2005. The California
Supreme Court denied Pham’s request for review on November 30, 2005.
On June 30, 2006, Pham filed a petition for writ of habeas corpus with this court,
along with a motion for leave to proceed in forma pauperis. This court issued an order to
show cause and denied Pham’s request to proceed in forma pauperis on July 13, 2006.
Respondent James Tilton filed an answer to the petition and notice of lodging of exhibits in
support of his answer on September 25, 2006. Pham subsequently filed his traverse to the
answer on November 3, 2006.
II. Factual History
On July 15, 2000, six friends, Tina Le (“Tina”), Tina’s boyfriend Hung Nguyen
(“Hung”), Trong Nguyen (“Trong”), Tuan Tran (“Tuan”), Tuan’s girlfriend Lucy, and another
male friend named Dai, went to a park to celebrate Hung’s birthday.1
Though Hung, Trong
and Tuan all drank beer, Hung was the only one who was drunk.
Later that evening, the six friends went to Tinh Café in San Jose, California to
continue the birthday celebration. The six friends sat together at one table, while Pham
and Trinh sat at another table. Tina recognized Pham as her ex-boyfriend’s friend. Though
Tina had seen Pham and Trinh around, she did not know them. Hung noticed that Pham
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and Trinh were staring at him in an unfriendly manner. As Hung and Tina walked by Pham
and Trinh’s table to exit the café, Hung said to Pham and Trinh, “What the fuck are you
looking at?” Pham and Trinh did not reply.
While Hung was outside the café, Pham and Trinh ran up behind Hung and stabbed
him, which caused him to faint. It is not known whether it was Pham or Trinh that stabbed
Hung.
Pham and Trinh then attacked Trong. Trong tried to run away, but was
unsuccessful. Pham and Trinh eventually caught Trong and proceeded to continue
attacking him. Pham and Trinh stabbed him repeatedly in the chest, back, and head with
knives. At least one knife had an eight-inch blade. As they stabbed him, Pham and Trinh
said something to the effect of, “Are you trying to act tough?”
After witnessing Hung faint, Tina went back into the café and called for Tuan’s help.
Tuan ran outside and discovered that Trong was being attacked by Pham and Trinh. Tuan
attempted to intervene by punching one of the attackers. Tuan was subsequently stabbed
by both Pham and Trinh. The first attacker asked Tuan something to the effect of, “Do you
think you are tough?” or “Do you think you are a tough guy?” Pham and Trinh then
disengaged and fled the scene.
Hung, Trong, and Tuan sustained severe injuries as a result of the attack. Hung had
been stabbed near his shoulder and was rendered unconscious. Trong was bleeding
profusely from his head and other parts of his body. Trong was stabbed in his left arm,
right temple, right shoulder, neck, left flank, and the middle of his back. The cut on his
head was six centimeters long. One of the stab wounds to Trong’s back was long and very
deep. Trong was taken to a hospital where he required emergency surgery.
Tuan was also bleeding, suffering stab wounds to both of his arms, the back of his
right shoulder, his left shoulder just below his neck, his right hip, his lower back and midback and an area below his armpit. Tuan's back wounds included a ten-inch long wound
that went from his mid-back around to his chest and a seven-inch long wound to his lower
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In the gang culture, “mad-dogging” means a “dirty look” or “stare” that is perceived to be a
“challenge to fight.” (R.T. Exh. 2, 406, 408.)
4
back. A stab wound to his right flank was more than six inches deep and lacerated his
kidney. A deep stab wound to his back caused his lung to partially collapse. Due to the
kidney laceration and lung collapse, Tuan was taken to a hospital where he required
emergency surgery.
Pham and Trinh were later arrested. Pham told the police that Tina called him and
Trinh “chickenshit” as she passed by their table at Tinh Café. Pham also told the police
that Tina's friends were “mad-dogging”2 him and looking for a fight. Pham admitted that he
stabbed Hung in the upper right shoulder, but maintained that Hung or one of Hung’s
friends had thrown the first punch.
Subsequent to his arrest, Pham admitted, in an interview with the investigating gang
detective, to both being a member of the “V12” gang (“V12"), also known as the “12 Zodiac”
gang, and to being very close friends with V12’s core members. (R.T. Exh. 1, 221; Exh. 2,
388.) He also told the police that V12 members liked to hang out at the Tinh Café, but did
not specifically state that the July 2000 stabbings were connected or related to V12 or its
activities.
Pham acknowledged that Dat Nguyen (“Dat”) was a member of V12 and was
currently incarcerated for a stabbing that occurred at a different Vietnamese café. Pham
also acknowledged that Phat Vu (“Phat”), a member of V12, was currently in custody for
fighting. In 1998, following a complaint of a weapons disturbance, Pham and Phat were
arrested together. Pham was identified as armed with a stick while chasing others. (R.T.
Exh. 2, 387.) Phat was a registered member of V12 and listed Pham as one of his
associates on his gang registration form.
Trinh told the police that Tina and Hung had been staring at him inside Tinh Café.
Though Trinh admitted to being involved in the altercation outside the café, he denied
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stabbing anyone. Trinh was knowledgeable about V12, but denied being a member of the
gang.
In contrast to the assailants, the victims, Hung, Trong, and Tuan were not gang
members.
STANDARD OF REVIEW
The petition in this case was filed after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), so the provisions of that act apply. See
Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under AEDPA, a district court may not grant a
petition challenging a state conviction or sentence on the basis of a claim that was
reviewed on the merits in state court unless the state court’s adjudication of the claim: “(1)
resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)
(2007).
A state court decision is “contrary to” Supreme Court authority, falling within the first
clause of section 2254, subdivision (d)(1) of Title 28 of the United States Code, only if “the
state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently than [the Supreme] Court has
on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13
(2000). “Clearly established Federal law” under section 2254, subdivision (d)(1) is the
governing legal principle or principles set forth by the Supreme Court at the time the state
court renders its decision. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). This “clearly
established” law refers to the holdings, as opposed to the dicta, of Supreme Court
decisions as of the time of the relevant state court decision. Id. at 71.
Under the “unreasonable application” clause of Section 2254, subdivision (d)(1), a
federal habeas court may grant the writ if the state court identifies the correct governing
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legal principle from the Supreme Court’s decisions but unreasonably applies that principle
to the facts of the petitioner’s case. Andrade, 538 U.S. at 75. However, this standard
requires the state court decision to be more than incorrect or erroneous. Id. For the
federal court to grant habeas relief, the state court’s application of the Supreme Court
authority must be objectively unreasonable. Id. The “objectively unreasonable” standard is
different from the “clear error” standard in that “the gloss of clear error fails to give proper
deference to state courts by conflating error (even clear error) with unreasonableness.” Id.;
see Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003). Therefore, it is not enough that
a federal habeas court, in its independent review of the legal question, is left with a firm
conviction that the state court was erroneous. Rather, the federal habeas court must
conclude that the state court’s application of federal law was objectively unreasonable.
Andrade, 538 U.S. at 76; Clark, 331 F.3d at 1068.
However, when the state court decision does not articulate the rationale for its
determination or does not analyze the claim under federal constitutional law, a review of
that court’s application of clearly established federal law is not possible. See Delgado v.
Lewis, 223 F.3d 976, 981 (9th Cir. 2000); see also, 2 J. Liebman & R. Hertz, Federal
Habeas Corpus Practice and Procedure § 32.2, at 1424-26 & nn.7-10 (4th ed. 2001).
When confronted with such a decision, a federal court must conduct an independent review
of the record and the relevant federal law to determine whether the state court’s decision
was contrary to, or involved an unreasonable application of, clearly established federal law.
Delgado, 223 F.3d at 982. As the Ninth Circuit further explained:
When a state court does not furnish a basis for its reasoning, [federal courts]
have no basis other than the record for knowing whether the state court correctly
identified the governing legal principle or was extending the principle into a new
context . . . [A]lthough [federal courts] cannot undertake [its] review by analyzing
the basis for the state court’s decision, [they] can view it through the ‘objectively
reasonable’ lens ground by Williams . . . Federal habeas review is not de novo
when the state court does not supply reasoning for its decision, but an
independent review of the record is required to determine whether the state court
clearly erred in its application of controlling federal law. . .. Only by that
examination may [federal courts] determine whether the state court’s decision
was objectively reasonable.
Id.
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As for state court findings of fact, under Section 2254, subdivision (d)(2), a federal
court may not grant a habeas petition by a state prisoner unless the adjudication of a claim
on the merits by a state court resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d)(2). The “clearly erroneous” standard of unreasonableness that applies
in determining the “unreasonable application” of federal law under Section 2254,
subdivision (d)(1) also applies in determining the “unreasonable determination of facts in
light of the evidence” under Section 2254, subdivision (d)(2). See Torres v. Prunty, 223
F.3d 1103, 1107-08 (9th Cir. 2000). To grant relief under Section 2254, subdivision (d)(2),
a federal court must be “left with a firm conviction that the determination made by the state
court was wrong and that the one [petitioner] urges was correct.” Id. at 1108.
ISSUE
Pham contends that because there was insufficient evidence to support the gang
enhancement allegations, his conviction violates his due process rights under the
Fourteenth Amendment. More specifically, Pham argues that the State failed to present
sufficient evidence of two elements of the gang enhancement allegation that:
(1) Pham possessed the requisite specific intent under California Penal Code
section 186.22, subdivision (b)(1); or
(2) V12 had as one of its primary activities one of the enumerated criminal acts
under California Penal Code section 186.22, subdivision (e).
DISCUSSION
I. Legal Standard
The Due Process Clause of the Fourteenth Amendment “protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970);
see e.g., Fiore v. White, 531 U.S. 225, 228-29 (2001) (due process violated where basic
element of crime not proven because statute did not prohibit defendant’s conduct); see
Leavitt v. Vasquez, 875 F.2d 260, 261 (9th Cir. 1989) (state must prove every element of
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crime beyond a reasonable doubt). A state prisoner who alleges that the evidence in
support of his state conviction cannot be fairly characterized as sufficient to have led a
rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional
claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to
federal habeas relief. See id. at 324; see e.g., Wigglesworth v. Oregon, 49 F.3d 578, 582
(9th Cir. 1995) (writ granted where Oregon procedure of allowing lab reports regarding drug
analyses to be admitted into evidence without authenticating testimony relieved state of its
burden to prove beyond a reasonable doubt all elements of crime charged); Martineau v.
Angelone, 25 F.3d 734, 739-43 (9th Cir. 1994) (writ granted where evidence found
insufficient to convict defendants of child abuse based on delay in seeking medical care for
child).
Under Jackson, a federal court reviewing a state court conviction does not determine
whether it is satisfied that the evidence established guilt beyond a reasonable doubt.
Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal court "determines only
whether, 'after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.' " See id. (quoting Jackson, 443 U.S. at 319). The Jackson standard
must be applied with explicit reference to the substantive elements of the criminal offense
as defined by state law. Sarausad v. Porter, 479 F.3d 671, 678 (9th Cir. 2007). Only if no
rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ
be granted. See Jackson, 443 U.S. at 324.
After AEDPA, a federal habeas court applies the standards of Jackson with an
additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).
Generally, a federal habeas court must ask whether the operative state court decision
reflected an unreasonable application of Jackson and Winship to the facts of the case. Id.
at 1275 (quoting 28 U.S.C. § 2254(d)).
Title 28, section 2254, subdivision (d)(1) of the United States Code plainly applies to
Jackson cases; that is, if the state court affirms a conviction under Jackson, the federal
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court must decide whether the state court’s application of Jackson was objectively
unreasonable. Sarausad, 479 F.3d at 677-78. The Ninth Circuit has adopted guidelines for
applying the “objective unreasonableness” test: (1) the focus of the inquiry is on the state
court decision; (2) even with the deference due by statute to the state court’s
determinations, the federal habeas court must look to the “totality of the evidence” in
evaluating the state court’s decision; (3) the failure of the state court to consider at all a key
argument of the defendant may indicate that its conclusion is objectively unreasonable;
however, the paucity of reasoning employed by the state court does not itself establish that
its result is objectively unreasonable; (4) the failure of a state court to give appropriate
weight to all of the evidence may mean that its conclusion is objectively unreasonable; and
(5) the absence of cases of conviction precisely parallel on their facts does not, by itself,
establish objective unreasonableness. Id. at 678.
By contrast, Title 28, section 2254, subdivision (d)(2) of the United States Code is
not readily applicable to Jackson cases because a court under Jackson makes no
“determination of the facts” in the ordinary sense of resolving factual disputes. Sarausad,
479 F.3d at 678. Rather, the court views the evidence in the light most favorable to the
prosecution without resolving any disputed factual questions. Id. The federal court’s task
is not to decide whether the state court unreasonably determined disputed facts; it is,
rather, to decide whether the state court unreasonably applied the Jackson test. See id. at
683 (finding that while state court’s characterization of certain testimony was objectively
unreasonable, its conclusion that the Jackson standard was satisfied was not objectively
unreasonable). Thus, a federal court evaluates a state court’s resolution of a Jackson
sufficiency of the evidence claim in all cases under section 2254, subdivision (d)(1), rather
than subdivision (d)(2). Id. at 678.
II. There was Sufficient Evidence From Which a Rational Trier of Fact Could
Reasonably Find Beyond a Reasonable Doubt that Pham Possessed the
Requisite Specific Intent.
Pham challenges the state appellate court’s holding that there was substantial
evidence to support the specific intent element of the gang enhancement.
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The California Street Terrorism Enforcement and Prevention Act (“STEP Act”)
provides that “any person who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members” shall be punished by
an additional term of ten years if the felony is a violent felony. Cal. Penal Code §§ 186.22,
(b)(1) & (b)(1)(C) (West 2007).
Relying primarily on Garcia v. Carey, 395 F.3d 1099 (9th Cir. 2005), Pham argues
that there was insufficient evidence to lead a rational trier of fact to find that he committed
the stabbings with the requisite specific intent. In Garcia, the jury found the gang-member
defendant guilty of robbery and found true the gun and gang enhancement allegations. Id.
at 1102. On review, the Ninth Circuit observed that while the gang expert witness testified
to three other robberies committed by members of the defendant’s gang within a few
months prior to the defendant’s robbery, the expert’s testimony was “singularly silent on
what criminal activity of the gang was furthered or intended to be furthered by the
[defendant’s] robbery.” Id. at 1103. The court also noted that there was “nothing inherent
in the robbery that would indicate that it further[ed] some other crime.” Id. Finding that
nothing in the record could support an inference that the defendant committed the robbery
with the specific intent to facilitate other criminal conduct by his gang, the Ninth Circuit
affirmed the federal district court’s grant of habeas relief. Id. at 1100.
Here, in contrast to Garcia, the record does support a rational inference of a specific
intent to promote, further, or assist in other criminal conduct by gang members. At trial, the
gang expert testified that V12 was a criminal street gang and that the July 2000 stabbings
had been committed for the benefit of and at the direction of V12. (R.T. Exh. 2, 383, 395.)
The basis for his opinion was three-fold. First, Pham and Trinh were V12 gang members.
Second, Pham and Trinh acted in a coordinated fashion during the attack. Third, the
vicious attack by Pham and Trinh was prompted by Tina’s minor insult. The gang expert
testified that, in his view, only gang members would respond to a minor insult, such as
being called “chickenshit,” with a brutal and violent knife attack. This is because a minor
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insult to a gang member in public threatens his or her gang's reputation. (R.T. Exh. 2, 395-
96.) Record evidence demonstrated that unless the gang member responds to the insult
with violence, the gang itself will look weak. (R.T. Exh. 2, 401.) A violent response sends a
message to others that if someone challenges the gang or reports the gang to the police,
he or she will be dealt with in a violent manner. (R.T. Exh. 2, 411-12.) This message not
only instills a sense of fear in others, but also garners respect for the gang among other
gangs and potential recruits. (R.T. Exh. 2, 401-03, 410.) The testifying gang expert
asserted that if no gang members had been involved in this case, the response to Tina’s
minor insult would not have involved weapons. (R.T. Exh. 2, 395-96.) The gang expert
also attested that the statements made to Trong and Tuan during the attack, to the effect
of, “Are you tough?” were the type of statements that gang members would make during a
fight. (R.T. Exh. 2, 372.)
The gang expert in this case, unlike the expert in Garcia, was not “singularly silent”
on what criminal activity of V12 was furthered or intended to be furthered. 395 F.3d at
1103. As the gang expert explained, gangs have a keen interest in and need for
establishing a reputation for being tough. (R.T. Exh. 2, 390.) Holding such a reputation
grants a gang the power of intimidation over witnesses and other gangs. (R.T. 390, 399-
400.) The stronger the reputation, the greater the power. If a gang has an established
reputation for violence, witnesses will be hesitant to report a gang’s criminal behavior and
rival gangs will be hesitant to attack them. (R.T. Exh. 2, 390-91, 396, 399, 402.)
Possessing this power, in turn, makes it easier for a gang to commit crimes for financial
gain. (R.T. Exh. 2, 391.)
In reaching its decision in Garcia, the Ninth Circuit relied in part on the California
Supreme Court’s decision in People v. Gardeley, 14 Cal. 4th 605 (1996), which was also
cited by Pham. In Gardeley, the expert testified that the assault at issue was a “classic”
example of gang-related activity. Id. at 619. The expert further explained that “criminal
street gangs rely on such violent assaults to frighten the residents of an area where the
gang members sell drugs, thereby securing the gang’s drug-dealing stronghold.” Id. The
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Gardeley court held that such testimony permitted the jury to reasonably find that the attack
was committed with the requisite specific intent. Id. at 620. While there was no
comparable evidence in Garcia, 395 F.3d at 1104, there is comparable evidence in this
case. Therefore, the gang expert’s testimony in this case was sufficient to establish
Pham’s specific intent to promote, further, or assist in V12's criminal conduct under
Gardeley.
Pham also relies on People v. Gamez to support his petition. 235 Cal. App. 3d 957
(4th Dist. 1991), disapproved on other grounds by Gardeley, 14 Cal. 4th at 624 n.10.
However, because there was sufficient evidence that Pham committed the attempted
murders with the specific intent of promoting, furthering, or assisting in V12's criminal
conduct, the state appellate court’s holding in this case was not inconsistent with Gamez.
The defendant in Gamez argued that because California Penal Code section 186.22 was
unconstitutionally vague and overbroad, it violated his First Amendment right of freedom of
association. Gamez, 235 Cal. App. 3d at 970. The state appellate court in Gamez
disagreed with the defendant’s reading of the statute, explaining that:
[O]ne is free to associate with whomever one wishes under the statute, so long
as the primary purpose of associating one’s self with the group is not to commit
crime. It is not the association with individuals alone which section 186.22
addresses, but the association with others for the purpose of promoting,
furthering or assisting them in the commission of crime.
Id. at 971.
Here, Pham is not subject to the gang enhancement merely for his membership to
the V12 gang. Rather, he is subject to the gang enhancement because there is sufficient
evidence that he committed the attempted murders with the requisite specific intent under
California Penal Code section 186.22 and, as explained below, that one of V12's primary
activities was the commission of crime.
For the foregoing reasons, the state appellate court’s application of Jackson was
objectively reasonable, as a rational trier of fact could reasonably find that Pham
possessed the requisite specific intent.
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Unless otherwise specified, all further undesignated statutory references are to the
California Penal Code.
13
III. There was Sufficient Evidence From Which a Rational Trier of Fact Could
Reasonably Find Beyond a Reasonable Doubt that the “Primary Activity”
Element of the Gang Enhancement Allegation was Satisfied.
Pham also challenges the state appellate court’s holding that there was substantial
evidence to support the “primary activity” element of the gang enhancement.
As defined by the California Street Terrorism Enforcement and Prevention Act
(“STEP Act”):
“[C]riminal street gang” means any ongoing organization, association, or group
of three or more persons, whether formal or informal, having as one of its
primary activities the commission of one or more of the criminal acts enumerated
in paragraphs (1) to (25) . . . of subdivision (e), having a common name or
common identifying sign or symbol, and whose members individually or
collectively engage in or have engaged in a pattern of criminal activity.
Cal. Penal Code § 186.22(f) (West 2007) (emphasis added).
Under California Penal Code section 186.22, subdivision (e),3
a “pattern of criminal
activity” means the commission of, attempted commission of, or conviction of two or more
of the offenses enumerated in paragraphs (1) to (25) of subdivision (e). Cal. Penal Code
§186.22(e). Paragraphs (1) to (25) of subdivision (e) include “[a]ssault with a deadly
weapon or by means of force likely to produce great bodily injury, as defined in Section
245,” Cal. Penal Code § 186.22(e)(1), “[u]nlawful homicide or manslaughter, as defined in
Chapter 1 (commencing with Section 187) of Title 8 of Part 1, Cal. Penal Code. §
186.22(e)(3), and the “intimidation of witnesses and victims, as defined in Section 136.1.”
Cal. Penal Code § 186.22(e)(8). To amount to a “pattern of criminal activity,” these
offenses must be committed on separate occasions, or by two or more persons. Cal. Penal
Code §186.22(e).
At trial, the gang expert testified that he believed that V12 was a “criminal street
gang” and had committed criminal acts, prior to the July 2000 stabbing, that established a
“pattern of criminal gang activity” for the purposes of the STEP Act. (R.T. Exh. 2, 383.) In
support of his opinion, the gang expert identified two prior violent altercations that involved
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V12 gang members. In the first violent altercation, which occurred on May 10, 2000, V12
member Dat struck a person over the head with a glass at a Vietnamese café. A fight
subsequently broke out in which both victims were stabbed. Dat admitted to being a
member of V12, was later convicted of attempted murder, and admitted the truth of the
gang enhancement allegation. In the second violent altercation, registered V12 member
Phat committed an assault with a deadly weapon at a Vietnamese café.
Contrary to Pham’s contentions, this evidence was sufficient to lead a rational trier of
fact to find that V12 had as one of its primary activities one of the statutorily enumerated
criminal offenses. “Evidence of past or present conduct by gang members involving the
commission of one or more of the statutorily enumerated crimes is relevant in determining
the group’s primary activities.” People v. Sengpadychith, 26 Cal. 4th 316, 323 (2001).
Such evidence alone, however, is not necessarily sufficient. Id. For instance, evidence of
one offense or occasional criminal activity is insufficient to establish that such activity is a
primary activity under the STEP Act. People v. Vy, 122 Cal. App. 4th 1209, 1223 (2004).
However, evidence of consistent and repeated statutorily enumerated criminal activity may
be sufficient evidence of a gang’s primary activities. Sengpadychith, 26 Cal. 4th at 324.
While expert testimony expressly identifying a gang’s primary activities may be sufficient
evidence, see Vy, 122 Cal. App. 4th at 1225-26, the California Supreme Court has made
clear that this type of evidence is not required. Sengpadychith, 26 Cal. 4th at 324.
Here, there are strong factual similarities between Pham’s attempted murder and the
predicate criminal acts. Both Pham and Dat’s attempted murders involved the use of
knives, and resulted in their victims being stabbed. More generally, all three criminal acts
involved violent conduct, the use of weapons, were committed at Vietnamese cafés, and
are statutorily enumerated offenses under Section 186.22, subdivision (e). As the gang
expert testified, such criminal acts can serve to establish and reinforce a gang’s reputation
for being tough and, in turn, intimidate both witnesses and potential attackers. Taken
together, the similarities between Pham’s attempted murder and the predicate criminal acts
demonstrate consistency in V12’s activity. Moreover, the number of offenses committed in
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temporal proximity demonstrates the repetitive nature of V12’s criminal conduct. Therefore,
under Sengpadychith, the gang expert’s testimony in this case was sufficient to support the
finding that V12 had as one if its primary activities one of the statutorily enumerated
offenses in Section 186.22, subdivision (e).
For the foregoing reasons, the state appellate court’s application of Jackson was
objectively reasonable, as a rational trier of fact could reasonably find that the “primary
activity” element of the gang enhancement allegation was satisfied.
CONCLUSION
Applying California law, the state appellate court correctly held that there was
sufficient evidence to support a true finding for the gang enhancement to Pham’s
conviction. This holding was not unreasonable nor was it an unreasonable application of
clearly established federal law. Because there was sufficient evidence from which a
rational trier of fact could reasonably find that Pham committed the attempted murders with
the specific intent to promote, further, or assist in criminal conduct by V12, and that the
“primary activity” element of the gang enhancement allegation was satisfied, Pham’s due
process rights under the Fourteenth Amendment have not been violated. Therefore, for the
reasons set forth above, Pham’s petition for writ of habeas corpus is DENIED.
This order fully adjudicates the petition listed at No. 1 of the clerk’s docket for this
case and terminates all other pending motions. The clerk shall close the file.
IT IS SO ORDERED.
Dated: July 6, 2007
______________________
PHYLLIS J. HAMILTON
United States District Judge
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[
"Nancy A. Berryhill",
"Defendant"
],
[
"Athziri Castaneda",
"Plaintiff"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ATHZIRI CASTANEDA,
Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.
Case No. 18-cv-07363-DMR
ORDER ON CROSS MOTIONS FOR
SUMMARY JUDGMENT
Re: Dkt. Nos. 22, 28
Plaintiff Athziri Castaneda moves for summary judgment to reverse the Commissioner of
the Social Security Administration’s (the “Commissioner’s”) final administrative decision, which
found Castaneda no longer disabled due to medical improvement and therefore terminated her
disability benefits under Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. [Docket
No. 22.] The Commissioner cross-moves to affirm. [Docket No. 28.] For the reasons stated
below, the court grants in part Castaneda’s motion and remands this matter for further
proceedings.
I. BACKGROUND
On October 3, 2012, Castaneda was found disabled beginning on October 3, 2012. This is
known as the “comparison point decision” or CPD. Administrative Record (“A.R.”) 16. At the
time of the CPD, Castaneda had affective mood disorder and major depressive disorder which
resulted in the inability to sustain a normal 40-hour workweek. A.R. 17. On April 18, 2016,
pursuant to a continuing disability review, the Social Security Administration found Castaneda
was no longer disabled as of April 15, 2016. A.R. 15, 85. The determination was upheld on
reconsideration following a hearing before a Disability Hearing Officer. A.R. 15, 104-110.
An Administrative Law Judge (“ALJ”) held a hearing on December 21, 2017 and issued an
unfavorable decision on March 6, 2018. A.R. 12-30. The ALJ determined that Castaneda did not
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United States District Court
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develop any additional impairments after the CPD through April 15, 2016 and that her
impairments remained the same as of the CPD. A.R. 17. The ALJ found that medical
improvement occurred on April 15, 2016 and that starting on that date, Castaneda had the
following residual functional capacity (“RFC”)
to perform a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant is capable of
understanding, remembering, and carrying out simple one to two step
unskilled tasks. She can maintain concentration, persistence, and
pace throughout a normal workday and workweek as it relates to
simple unskilled tasks. The claimant is able to interact adequately
with coworkers and supervisors but should have no more than
occasional interactions with coworkers and supervisors. She should
have no interactions with the public. The claimant is able to make
adjustments and avoid hazards in the workplace.
A.R. 19.
Relying on the opinion of a vocational expert (“VE”) who testified that an individual with
such an RFC could perform other jobs existing in the economy, including salvage laborer, laundry
laborer, and fruit and vegetable packer, the ALJ concluded that “since April 15, 2016, [Castaneda]
has been capable of making a successful adjustment to work that existed in significant numbers in
the national economy,” and is not disabled. A.R. 24-25.
After the Appeals Council denied review, Castaneda sought review in this court. [Docket
No. 1.]
II. CONTINUING DISABILITY REVIEW PROCESS
An individual is disabled for the purpose of receiving benefits under the Act if she
demonstrates a medically determinable physical or mental impairment that prevents her from
engaging in substantial gainful activity that is expected to result in death or last for a continuous
period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42
U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the
work she previously performed and incapable of performing any other substantial gainful
employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999) (citing 42 U.S.C. § 423(d)(2)(A)).
After a person is found to be entitled to disability benefits, the Commissioner is required to
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periodically review whether continued entitlement to such benefits is warranted. 42 U.S.C. §
421(i); 20 C.F.R. §§ 404.1589-1590. A claimant’s benefits cannot be terminated unless
substantial evidence demonstrates medical improvement in her impairment such that the claimant
is able to engage in substantial gainful activity and is therefore no longer disabled. See 42 U.S.C.
§ 423(f)(1); 42 U.S.C. § 1382c(a)(4); 20 C.F.R. § 416.994; Flaten v. Sec’y of Health & Human
Servs., 44 F.3d 1453, 1460 (9th. Cir. 1995). To determine if the claimant continues to be disabled
for Title XVI benefits, an ALJ conducts a seven-step inquiry. 20 C.F.R. § 416.994.
1. At the first step, the ALJ determines whether the claimant has an impairment or
combination of impairments which meets or medically equals the criteria of an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. If the claimant does, the ALJ will find that the
claimant continues to be disabled.
2. At the second step, the ALJ determines if medical improvement has occurred. If medical
improvement has occurred, the ALJ will proceed to step three. If medical improvement has not
occurred, the ALJ proceeds to step four.
3. At the third step, the ALJ determines whether medical improvement is related to the
claimant’s ability to work. If it is, the ALJ proceeds to step five.
4. At the fourth step, the ALJ determines whether an exception to medical improvement
applies. There are two groups of exceptions. If one of the first group of exceptions applies, the
ALJ will go to step five. If one of the second group of exceptions applies, the ALJ will find that
the claimant’s disability has ended.
5. At the fifth step, the ALJ determines whether all the claimant’s current impairments in
combination are severe within the meaning of 20 C.F.R. § 416.994(b)(5)(v). If all current
impairments in combination do not significantly limit the claimant’s ability to do basic work
activities, the ALJ will find that the claimant is no longer disabled.
6. At the sixth step, the ALJ assesses the claimant’s RFC based on her current impairments
and determines if she can perform past relevant work. If the claimant has the capacity to perform
past relevant work, the ALJ will find that the claimant’s disability has ended. If not, the ALJ
proceeds to the final step.
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7. At the seventh and final step, the ALJ determines whether other work exists in significant
numbers in the national economy that the claimant can perform, given her RFC and considering
her age, education, and past work experience. If the claimant can perform other work, the ALJ
will find that she is no longer disabled. If the claimant cannot perform other work, the ALJ will
find that her disability continues.
III. ISSUES FOR REVIEW
Castaneda argues that the ALJ’s determination that medical improvement occurred is not
supported by substantial evidence. She also argues that the ALJ’s assessment of her RFC as of
April 15, 2016 is not supported by substantial evidence. Therefore, the issues are as follows:
1. Did the ALJ err in finding that medical improvement occurred?
2. Is the ALJ’s determination of Castaneda’s RFC as of April 15, 2016 supported by
substantial evidence?
IV. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the district court has the authority to review a decision by
the Commissioner denying a claimant disability benefits. “This court may set aside the
Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal
error or are not supported by substantial evidence in the record as a whole.” Tackett, 180 F.3d at
1097 (citations omitted). Substantial evidence is evidence within the record that could lead a
reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402
U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a preponderance. See Saelee
v. Chater, 94 F.3d 520, 522 (9th Cir.1996) (internal citation omitted). When performing this
analysis, the court must “consider the entire record as a whole and may not affirm simply by
isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006) (citation and quotation marks omitted).
If the evidence reasonably could support two conclusions, the court “may not substitute its
judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112
F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s
decision for harmless error, which exists when it is clear from the record that the ALJ’s error was
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inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted).
V. DISCUSSION
Castaneda argues that the ALJ’s finding of medical improvement is not supported by
substantial evidence, asserting that the ALJ’s conclusion that Castaneda did not develop any
additional impairments after the CPD beyond affective mood disorder and major depressive
disorder is inaccurate. She notes that treatment records from 2017 show that she met the criteria
for schizophrenia and agoraphobia. According to Castaneda, the ALJ did not adequately evaluate
the limitations posed by these impairments that occurred when she is out in public and around
other people, and instead “focused too narrowly” on her symptoms of depression and affective
mood disorder in assessing whether she had improved. Pl.’s Mot. 10.
The regulations define medical improvement as “any decrease in the medical severity of [a
claimant’s] impairment(s) which was present at the time of the most recent favorable medical
decision that [the claimant] [was] disabled or continued to be disabled. A determination that there
has been a decrease in medical severity must be based on changes (improvement) in the
symptoms, signs, or laboratory findings associated with [the claimant’s] impairment(s).” 20
C.F.R. § 416.994.
The record consistently documents Castaneda’s complaints of auditory and visual
hallucinations and providers’ diagnoses of schizophrenia. For example, in 2012, Castaneda’s
therapist and care manager noted her diagnosis of schizophrenia and its impact on her functioning.
Importantly, he noted that she had been diagnosed with schizophrenia “using the SCID (Structured
Clinical Interview for the DSMIV TR), a th[o]rough assessment that was completed at the PART
Program at UCSF.” A.R. 335-36. The following year, a psychiatrist, Dr. Tim Sinclair, examined
her and wrote that Castaneda experienced “paranoid thoughts and 3rd person derisive auditory
hallucinations,” and that although “her presentation is a bit atypical for schizophrenia,” he felt that
schizophrenia was “the most accurate diagnosis.” A.R. 548-49. Medical records in 2013 and
2014 contain references to Castaneda’s hallucinations. See A.R. 429 (Feb. 18, 2014), 559 (Sept. 4,
2013), 561 (June 10, 2013).
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In 2017, when Castaneda resumed treatment, her provider, Susana Scotti, Ph.D., wrote that
Castaneda met the criteria for schizophrenia, multiple episodes, currently in partial remission.
A.R. 656. Castaneda repeatedly endorsed auditory and visual hallucinations. A.R. 630-37, 655,
663. In September 2017, a medical provider with the San Francisco Department of Public Health
noted her schizophrenia diagnosis and prescribed lurasidone, an anti-psychotic. A.R. 706-16.
Similarly, the record contains references to symptoms and diagnoses of agoraphobia. In
2014, before the date of purported medical improvement, providers twice noted agoraphobia in
treatment notes, writing in February 2014 that she “goes out only about twice a week” and in
August 2014 that she was “still not getting out much. A.R. 513, 534. In 2016, one provider listed
agoraphobia along with anxiety and paranoid schizophrenia as her diagnoses. A.R. 689. In April
2017, Dr. Scotti found that Castaneda appeared to meet the criteria for agoraphobia. A.R. 656.
The record also contains numerous references to symptoms of agoraphobia, including in
Castaneda’s own reports to the Social Security Administration. In a February 2016 function
report, she reported that she goes outside “maybe” three times per week but does not go out alone
as she gets “really anxious and nervous when outside” by herself. A.R. 249. In April 2016, she
reported that she needs someone to be with her when doing things outside, including using public
transportation, because she is “uncomfortable, anxious and nervous.” A.R. 266, 268. Finally, at
the December 21, 2017 hearing, she testified that she does not go outside by herself because she
gets “really anxious and paranoid.” A.R. 37.
Despite this evidence, the ALJ concluded that Castaneda did not develop any additional
impairments after the CPD through April 15, 2016. A.R. 17. As part of the continuing disability
review process, an ALJ must determine whether all of a claimant’s current impairments in
combination are severe pursuant to 20 C.F.R. § 416.921, and must consider the impact of the
combination of all impairments on a claimant’s ability to function. 20 C.F.R. § 416.994(b)(5)(v).
When the evidence shows that all of a claimant’s current impairments in combination do not
significantly limit his or her physical or mental abilities to do basic work activities, these
impairments will not be considered severe in nature. Id. A severe impairment “must be
established by objective medical evidence from an acceptable medical source,” 20 C.F.R. §
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416.921, and the ALJ must “consider the claimant’s subjective symptoms, such as pain or fatigue,
in determining severity.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citations
omitted).
The ALJ did not discuss or explain her conclusion about Castaneda’s severe impairments
in any detail. However, the court finds that any error with respect to the ALJ’s failure to consider
Castaneda’s diagnosis of schizophrenia as a severe impairment was harmless because substantial
evidence supports the conclusion that her symptoms of schizophrenia do not significantly limit her
abilities to do basic work activities. The ALJ discussed Castaneda’s symptoms of schizophrenia
in the opinion, noting that Castaneda endorsed “severe symptoms including auditory
hallucinations” at the time of the CPD but that the evidence showed that her symptoms had
improved by 2016. A.R. 18-22. The ALJ also discussed Castaneda’s resumption of treatment in
2017 and the records from that time. A.R. 21. In February and June 2016, Castaneda denied any
hallucinations. A.R. 436, 687, 689. When Castaneda resumed treatment in 2017, she reported
weekly hallucinations. A.R. 663 (Apr. 7, 2017 treatment note). However, later that month, she
denied any auditory hallucinations and reported only occasional visual hallucinations in the form
of seeing shadows in her home. A.R. 655. By November 2017, Castaneda reported hearing a
male voice commenting on her appearance but “stated that hearing the voice is ‘not a problem’”
and that she was able to cope with her hallucinations. A.R. 485, 492. The provider described her
as “lighthearted throughout the interview process” and reported that Castaneda said she was
“hopeful” and motivated. A.R. 491. The court finds that substantial evidence supports the ALJ’s
conclusion that Castaneda’s hallucinations improved by April 2016; therefore, any error as to
whether schizophrenia is a severe impairment was harmless.
The court reaches a different conclusion as to the ALJ’s failure to consider Castaneda’s
documented diagnosis and symptoms of agoraphobia. As discussed above, Dr. Scotti found that
Castaneda appeared to meet the criteria for agoraphobia in April 2017. A.R. 656. Castaneda
repeatedly reported symptoms of agoraphobia to the Social Security Administration and to
treatment providers in 2017. The ALJ noted this evidence, including Castaneda’s statements that
she felt “anxious when walking outside,” A.R. 687 (July 19, 2016 note, “fearful/anxious when
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walking outside, stopped going to school because she did not like to walk back and forth outside
from home to school”), that “her anxiety was more troubling [than hallucinations],” A.R. 485
(Nov. 17, 2017 note, “her anxiety was more centered on disliking her commute to school”), that
she “still had problems going into public spaces alone,” A.R. 632 (June 5, 2017 note, “avoids
public transportation/crowded spaces ...due to fear of being trapped and experiencing heightened
anxiety), and that in September 2017, “she again complained of agoraphobia, she did not like to be
in crowded places such as a bus and reported a tendency to isolate at home.” A.R. 713 (Sept. 5,
2017 note). Despite this evidence, the ALJ did not include agoraphobia in her discussion of
whether Castaneda had developed any additional impairments after the CPD, even though as part
of the continuing disability review process, an ALJ must determine whether all of a claimant’s
current impairments in combination are severe and must consider the impact of the combination of
all impairments on a claimant’s ability to function. 20 C.F.R. § 416.994(b)(5)(v). Moreover, the
ALJ provided very little analysis of Castaneda’s diagnosis and symptoms of agoraphobia and did
not set forth any reasons for discounting the most recent evidence of the same. Therefore, the
court cannot say that substantial evidence supports the ALJ’s apparent determination that
Castaneda does not have agoraphobia and/or that Castaneda’s agoraphobia is not a severe
impairment within the meaning of the regulations. The ALJ thus erred in finding medical
improvement based solely on Castaneda’s affective mood disorder and major depressive disorder.
For this reason, the ALJ’s assessment of Castaneda’s RFC was not supported by substantial
evidence, because “an RFC that fails to take into account a claimant’s limitations is defective.”
Valentine v. Comm'r. of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009).
VI. CONCLUSION
For the foregoing reasons, Castaneda’s motion for summary judgment is granted in part.
This matter is remanded for further proceedings in a manner consistent with this opinion.
IT IS SO ORDERED.
Dated: March 23, 2020
______________________________________
Donna M. Ryu
United States Magistrate Judge
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORN
I
A
IT IS SO ORDERED
Judge Donna M. Ryu
Case 4:18-cv-07363-DMR Document 30 Filed 03/23/20 Page 8 of 8 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-5_06-cv-00287/USCOURTS-ared-5_06-cv-00287-0/pdf.json | [
[
"Lee Goston",
"Plaintiff"
],
[
"Grant Harris",
"Defendant"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
LEE GOSTON PLAINTIFF
VS. CASE NO. 5:06CV00287 JMM
GRANT HARRIS DEFENDANT
ORDER
Plaintiff’s Motion for Voluntary Dismissal is granted (#21). The case is dismissed
without prejudice.
IT IS SO ORDERED THIS 19 day of September , 2007.
James M. Moody
United States District Judge
Case 5:06-cv-00287-JMM Document 22 Filed 09/19/07 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_13-cv-02318/USCOURTS-caed-2_13-cv-02318-5/pdf.json | [
[
"Honest Tea, Inc.",
"Defendant"
],
[
"Sarah A. Salazar",
"Plaintiff"
]
] | 1
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[PROPOSED] ORDER REGARDING PLAINTIFF’S MOTION TO COMPEL
CASE NO. 13-CV-02318-KJM-EFB
BURSOR & FISHER, P.A.
L. Timothy Fisher (State Bar No. 191626)
Annick M. Persinger (State Bar No. 272996)
Yeremey Krivoshey (State Bar No. 295032)
1990 North California Boulevard, Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SARAH A. SALAZAR, on behalf of herself and
all others similarly situated,
Plaintiff,
v.
HONEST TEA, INC.,
Defendant.
Case No. 2:13-CV-02318-KJM-EFB
[PROPOSED] ORDER REGARDING
PLAINTIFF’S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS AND
FURTHER RESPONSES TO
INTERROGATORIES
Hon. Edmund F. Brennan
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[PROPOSED] ORDER REGARDING PLAINTIFF’S MOTION TO COMPEL 1
CASE NO. 13-CV-02318-KJM-EFB
On June 24, 2015, Plaintiff Sarah Salazar moved for an order compelling Defendant Honest
Tea Inc. to produce documents and further responses to interrogatories. Specifically, Plaintiff
moved for an order compelling the production of documents in response to Plaintiff’s Requests for
Production numbered 2, 5, 6, 7, 8, 16, and 17 and further responses to Plaintiff’s Interrogatories
numbered 1, 2, and 3.
Plaintiff’s motion to compel the production of documents and further responses to
interrogatories came on for hearing before this Court on July 1, 2015. All parties appeared through
their respective counsel of record. The transcript of the July 1, 2015 hearing is attached as Exhibit
A and incorporated herein by reference. Having considered all papers properly submitted by the
parties, the arguments of counsel, and the pleadings, orders and papers on file in this matter, the
Court hereby finds and orders the following.
Judge Mueller specifically did not bifurcate discovery. 7/1/2015 Transcript at 9:4-10:10.
See also 3/5/2015 Pretrial Scheduling Conference Transcript. Accordingly, this Court concludes
that the discovery at issue is not premature. 7/1/2015 Transcript at 9:4-10:10. Furthermore, like
Judge Mueller, this Court recognizes that class certification and merits discovery often overlap.
Id. at 9:15-10:9, 14:9-13. Thus, even if discovery was bifurcated, the discovery at issue is not
premature because there is sufficient overlap between class certification and merits issues. Id.
a) Plaintiff’s Requests for Production Nos. 2, 5, 6, 7, 8, 16, and 17
Plaintiff’s Request for Production No. 2 seeks “ALL DOCUMENTS that REFER OR
RELATE TO the preparation, creation, review, or approval of the LABELS for HONEY GREEN
TEA, including, but not limited to DOCUMENTS concerning planning, review and approval of
ALL LABELS, COMMUNICATIONS with consultants and third parties, and internal
COMMUNICATIONS concerning the LABELING of HONEY GREEN TEA.” See Motion to
Compel, Dkt. No. 57. For the reasons set forth in the July 1, 2015 transcript, the Court finds that
Request No. 2 seeks relevant information and is not premature. 7/1/2015 Transcript at 4:3-9:3. As
such, the Court grants Plaintiff’s motion to compel the production of information in response to
Request No. 2. Id.
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[PROPOSED] ORDER REGARDING PLAINTIFF’S MOTION TO COMPEL 2
CASE NO. 13-CV-02318-KJM-EFB
Plaintiff’s Request for Production No. 5 seeks “ALL DOCUMENTS that REFER OR
RELATE TO the development of HONEY GREEN TEA, including, but not limited to,
COMMUNICATIONS with consultants and third parties, internal COMMUNICATIONS, and
ANY analysis or opinions concerning the ingredients, antioxidant content, including but not
limited to EGCG, flavonoids, or other catechins, or formulation of HONEY GREEN TEA, without
limitation to time period.” See Motion to Compel, Dkt. No. 57. For the reasons set forth in the
July 1, 2015 transcript, the Court finds that that Request No. 5 seeks relevant information and is
not premature. 7/1/2015 Transcript at 11:7-14:14. The Court grants Plaintiff’s motion as to
Request No. 5. Id.
Plaintiff’s Request for Production No. 6 seeks “ALL DOCUMENTS that REFER OR
RELATE TO COMMUNICATIONS with ANY in-house or outside scientific, medical, or other
consultants concerning the ingredients, or formulation of HONEY GREEN TEA without limitation
to time period.” See Motion to Compel, Dkt. No. 57. For the reasons set forth in the July 1, 2015
transcript, the Court finds that that Request No. 6 seeks relevant information and is not premature.
7/1/2015 Transcript at 14:15-17-8. The Court grants Plaintiff’s motion as to Request No. 6. Id.
Plaintiff’s Request for Production No. 7 seeks “ALL DOCUMENTS that REFER OR
RELATE TO the nutritional content of HONEY GREEN TEA, including but not limited to the
amount of Vitamin C, Vitamin E, and Vitamin A, without limitation to time period, including but
not limited to the milligram amount of the ingredients, listed or not listed in the nutrition facts
panel on HONEY GREEN TEA’s label without limitation to time period.” See Motion to Compel,
Dkt. No. 57. For the reasons set forth in the July 1, 2015 transcript, the Court finds that that
Request No. 7 seeks relevant information and is not premature. 7/1/2015 Transcript at 17:9-10,
21:22-22:8. The Court grants Plaintiff’s motion as to Request No. 7. Id.
Plaintiff’s Request for Production No. 8 seeks “ALL DOCUMENTS that REFER OR
RELATE TO testing of the antioxidant content, including but not limited to Epigallocatechin
Gallate (“EGCG”), flavonoids, or other catechins, in HONEY GREEN TEA, including, but not
limited to, clinical study proposals, descriptions, abstracts, reports, results, and ANY other
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[PROPOSED] ORDER REGARDING PLAINTIFF’S MOTION TO COMPEL 3
CASE NO. 13-CV-02318-KJM-EFB
DOCUMENTS concerning studies, tests or evaluations concerning the ingredients, or formulation
of HONEY GREEN TEA, without limitation to time period.” See Motion to Compel, Dkt. No. 57.
For the reasons set forth in the July 1, 2015 transcript, the Court finds that that Request No. 8 seeks
relevant information and is not premature. 7/1/2015 Transcript at 17:9-22:8. The Court grants
Plaintiff’s motion as to Request No. 8. Id.
Plaintiff’s Request for Production No. 16 seeks “ALL DOCUMENTS that REFER OR
RELATE TO consumer preference, desire, OR awareness of ANY products with antioxidants,
including but not limited to Epigallocatechin Gallate (“EGCG”), flavonoids, or other catechins,
AND ANY studies, research, or COMMUNICATIONS concerning consumer awareness, desire,
OR preference for products with antioxidants, including but not limited to Epigallocatechin Gallate
(“EGCG”), flavonoids, or other catechins.” See Motion to Compel, Dkt. No. 57. For the reasons
set forth in the July 1, 2015 transcript, the Court finds that that Request No. 16 seeks relevant
information and is not premature. 7/1/2015 Transcript at 22:10-23:17. The Court grants Plaintiff’s
motion as to Request No. 16. Id.
Plaintiff’s Request for Production No. 17 seeks “ALL DOCUMENTS that REFER OR
RELATE TO ANY COMMUNICATIONS concerning ANY price increase, price premium, OR
amount of money consumers are willing to pay for ANY products with antioxidants, including but
not limited to Epigallocatechin Gallate (“EGCG”), flavonoids, or other catechins.” See Motion to
Compel, Dkt. No. 57. For the reasons set forth in the July 1, 2015 transcript, the Court finds that
that Request No. 17 seeks relevant information and is not premature. 7/1/2015 Transcript at 23:18-
22. The Court grants Plaintiff’s motion as to Request No. 17. Id.
For the foregoing reasons as well as the reasons set forth in detail in the July 1, 2015
transcript, Defendant shall produce documents in response to Plaintiff’s Requests for Production
numbered 2, 5, 6, 7, 8, 16, and 17.
If any documents are withheld on the basis of privilege, this Court will strictly apply the
requirement for a privilege log. See id. at 10:12-11:5.
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[PROPOSED] ORDER REGARDING PLAINTIFF’S MOTION TO COMPEL 4
CASE NO. 13-CV-02318-KJM-EFB
b) Plaintiff’s Interrogatories Nos. 1, 2, and 3
Plaintiff’s Interrogatory No. 1 requests that Defendant “IDENTIFY EACH retail outlet
(including, but not limited to, stores, outlet stores, AND online businesses) that sells OR has sold
HONEY GREEN TEA.” See Motion to Compel, Dkt. No. 57. For the reasons set forth in the July
1, 2015 transcript, the Court grants Plaintiff’s motion as to Interrogatory No. 1. 7/1/2015
Transcript at 23:23-30:7.
Plaintiff’s Interrogatory No. 2 requests that Defendant “State YOUR gross revenue from
the sale of HONEY GREEN TEA in the United States, state-by-state since its introduction to the
market, on a monthly basis.” See Motion to Compel, Dkt. No. 57. For the reasons set forth in the
July 1, 2015 transcript, the Court finds that Interrogatory No. 2 seeks relevant information.
7/1/2015 Transcript at 30:8-11. However, given that Defendant produced a spreadsheet in
response to this Interrogatory, the Court denies Plaintiff’s motion as to Interrogatory No. 2 without
prejudice. Id. at 34:23-35:16. The Court will not require further supplementation at this point. If
after Plaintiff’s counsel has consulted with her expert, they conclude that they need more
information, then the denial is without prejudice plaintiff may renew her motion as to this
interrogatory. Id. at 35:12-16.
Plaintiff’s Interrogatory No. 3 requests that Defendant “IDENTIFY EACH ingredient and
the amount in HONEY GREEN TEA for each variation, if any, for HONEY GREEN TEA since
its introduction to the market.” See Motion to Compel, Dkt. No. 57. For the reasons set forth in
the July 1, 2015 transcript, the Court finds that Interrogatory No. 3 seeks relevant information and
grants Plaintiff’s motion as to Interrogatory No. 3. 7/1/2015 Transcript at 35:17-36:7.
For the foregoing reasons, as well as the reasons set forth in detail in the July 1, 2015
transcript, Defendant shall provide supplemental responses to Plaintiff’s Interrogatories numbered
1, and 3. Plaintiff’s motion as to Interrogatory No. 2 is denied without prejudice.
IT IS SO ORDERED.
DATED: July 13, 2015.
Case 2:13-cv-02318-KJM-EFB Document 66 Filed 07/13/15 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-18-02228/USCOURTS-ca6-18-02228-0/pdf.json | [
[
"Corizon Health, Inc.",
"Appellee"
],
[
"Eddie Jenkins",
"Appellee"
],
[
"Michigan Department of Corrections",
null
],
[
"Richard Miles",
"Appellee"
],
[
"Karen Rhodes",
"Appellee"
],
[
"Antonio Vinson",
"Appellant"
]
] | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0473n.06
Case No. 18-2228
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANTONIO VINSON, Personal Representative
of the Estate of Michael Vinson,
Plaintiff-Appellant,
v.
MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.
Defendants,
CORIZON CORPORATION; RICHARD
MILES, M.D.; KAREN RHODES, D.O.;
EDDIE JENKINS, M.D.,
Defendants-Appellees.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
BEFORE: COOK, NALBANDIAN, and MURPHY, Circuit Judges.
COOK, Circuit Judge. In this 42 U.S.C. § 1983 action, Antonio Vinson, representing
Michael Vinson’s estate, alleges that three prison doctors and their employer, Corizon Health, Inc.,
ignored his brother’s serious medical needs before his death, their deliberate indifference violating
the Eighth Amendment. The district court entered summary judgment for the doctors, holding that
the treatment at issue amounted, at most, to medical malpractice rather than the deliberate
indifference needed to establish a constitutional claim. We AFFIRM.
Case: 18-2228 Document: 36-2 Filed: 09/10/2019 Page: 1
Case No. 18-2228, Vinson v. MDOC, et al.
- 2 -
I.
Corizon delivered prisoner medical services at Michigan Department of Corrections’s
Cotton facility, which housed Michael Vinson from October 2008 until a few days before his death
on May 25, 2012. Drs. Richard Miles, Karen Rhodes, and Eddie Jenkins cared for Vinson at
Cotton, beginning with an October 2011 complaint of back pain.
Dr. Miles assessed Vinson first. Unable to determine what might be aggravating Vinson’s
back during an October 25, 2011 physical examination, Dr. Miles scheduled a follow-up to
reassess Vinson with Dr. Rhodes. Three days later, Drs. Rhodes and Miles examined Vinson for
back pain and constipation, prescribed medication, and ordered a two-month follow-up.
In the interim, Vinson saw Corizon nurses at least four times for recurring abdominal pain
and repeated vomiting. On December 5, 2011, a nurse referred Vinson’s complaints of lower left
abdominal pain to Dr. Jenkins. Dr. Jenkins noted that Vinson’s pain had worsened over the month,
but that he did not hear “murmurs, gallops, or rubs,” or any other signs suggesting abdominal
abnormalities. Vinson told Dr. Jenkins that his prescribed medications failed to relieve his chronic
pain, so Dr. Jenkins ordered an x-ray, which showed Vinson’s abdomen in normal condition.
Seven times over the next four weeks, Vinson reported abdominal and back pain,
constipation, and frequent vomiting to Corizon nurses and doctors. Each examination found no
abdominal mass and usual bowel sounds without abnormal “bruits” or murmurs, the negative
indicators for abdominal health. Lab tests revealed no signs of internal bleeding or infection, and
Vinson told Dr. Miles that he experienced occasional relief only after bowel movements. Drs.
Miles and Rhodes prescribed medication and a restrictive diet, ordering follow-ups to monitor his
pain and symptoms. But by December 30, 2011, suffering continued sharp back pain, intermittent
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Case No. 18-2228, Vinson v. MDOC, et al.
- 3 -
abdominal pain, and daily vomiting—and the origin of his pain still unclear—defendant doctors
sent Vinson to an emergency room for further evaluation.1
At the hospital, Vinson reported vomiting on forty-five consecutive days, in addition to left
lower quadrant pain. Hospital personnel concluded that Vinson’s symptoms reflected “[c]hronic
abdominal pain with [a] history of constipation” and “[c]hronic back pain,” recommending no
further testing.
Post-hospitalization, Vinson’s reports of nausea, lower back pain, and abdominal pain
continued. Corizon nurses examined Vinson at least seven times before January 31, 2012, when
Dr. Miles examined Vinson in his cell for abdominal pain radiating to his back. Dr. Miles recorded
no abnormal abdominal sounds, but no abdominal tenderness, although the exam evidenced
tenderness in the bank/spine area when palpated with a paper clip. Vinson’s “[b]owel sounds
[were] present, [but] no bruits.” Dr. Miles also noted that Vinson refused his treatment
recommendations. When deposed, Dr. Miles stated that he considered a gastroenterologist referral
unwarranted at the time because “the subjective complaints [did not] match[] the objective
findings[.]”
Vinson eventually grew frustrated with Corizon medical staff. During a February 15, 2012
meeting, Vinson told a prison psychiatrist that he’d submitted a grievance over “what he
perceive[d] to be a lack of care.” The psychiatrist expressed doubt when Vinson claimed that he’d
lost twenty-five pounds, noting that “his weight was 185 [lbs] on 10/30/11 and was stable around
that weight for some time and is now 169 when taken on 2/8/12.”
1 Dr. Miles and Dr. Jenkins each had a hand in referring Vinson to the emergency room.
Dr. Jenkins mentioned the referral in his notes the day before the emergency room visit, and in his
deposition Dr. Miles took credit for the referral. Magistrate Judge Davis’s Report and
Recommendation supports both doctors’ involvement.
Case: 18-2228 Document: 36-2 Filed: 09/10/2019 Page: 3
Case No. 18-2228, Vinson v. MDOC, et al.
- 4 -
Vinson requested no further medical care until March 15, 2012, when a nurse responded
to his renewed complaints of back and abdominal pain. But Vinson refused treatment on the
nurse’s arrival, “stating that they won’t do anything for me in healthcare.” He changed course
within the week, however, and returned to the clinic for further examination on March 23rd.
Again, a nurse practitioner noted that Vinson’s bowel sounds were present without bruits. Even
so, the nurse found that his fifteen-pound weight-loss over four months warranted testing for
infection, internal bleeding, or other abnormalities. A dietician later concluded that Vinson did
not present “clinically significant weight loss, and his BMI indicates he is on the border between
healthy/overweight range.”
Vinson saw Dr. Miles again on April 25, 2012. Another physical examination revealed
bowel sounds without any abnormal bruit sounds. Dr. Miles ordered a blood test, a stool sample,
and a follow-up appointment to occur in one month’s time. But short of the one-month follow-up,
Vinson sought a transfer to another MDOC facility; another inmate had threatened his life.
Segregated and awaiting transfer, Vinson sent nurses a request for treatment, saying his pain had
grown so severe that he could “barely walk.”
By May 23rd, Cotton nurses cleared Vinson for transfer. Upon Vinson’s arrival at the new
facility, a nurse immediately referred him to a physician for examination. Her urgent request
detailed a forty-pound weight-loss and five days without a bowel movement, even though Vinson’s
bowel sounds remained audible.
The next morning, before a physician at the new facility could assess him, nurses found
Vinson unresponsive. He died from a ruptured abdominal aortic aneurysm (AAA). According to
Corizon’s experts, Vinson’s particular type of AAA would not have generated any audible
indicators, and its location made it inaccessible to physical examination.
Case: 18-2228 Document: 36-2 Filed: 09/10/2019 Page: 4
Case No. 18-2228, Vinson v. MDOC, et al.
- 5 -
On behalf of Michael Vinson’s estate, Antonio Vinson sued Corizon, its doctors, and its
nurses for deliberate indifference to his brother’s serious medical needs. The complaint alleged
that the doctors conspired to ignore Vinson’s complaints, and that Corizon maintained an
unconstitutional policy of delaying prisoner medical care.
Corizon and the doctors moved for summary judgment. The district court granted their
motion on Vinson’s deliberate indifference and civil conspiracy claims, and on the Monell claim
against Corizon. This appeal followed.
II.
This court reviews the district court’s grant of summary judgment de novo, drawing all
reasonable factual inferences in favor of the nonmovant. Dowling v. Cleveland Clinic Found., 593
F.3d 472, 476 (6th Cir. 2010). Summary judgment is appropriate where no genuine issue of
material fact exists and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
Vinson alleges that Corizon and its employees showed deliberate indifference to his serious
medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail, he must satisfy both
the objective and subjective components of this Eighth Amendment claim. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994). The district court concluded that Vinson suffered “a
sufficiently serious medical need,” satisfying the objective component. Dominguez v. Corr. Med.
Servs., 555 F.3d 543, 550 (6th Cir. 2009). But the court granted summary judgment to the doctors
because Vinson failed to satisfy the subjective component. We begin our analysis there.
We agree that Vinson failed to present evidence raising a genuine issue of material fact on
the subjective component of his claim, which assesses whether Drs. Miles, Rhodes, and Jenkins
bore “a sufficiently culpable state of mind in denying medical care.” Blackmore v. Kalamazoo
Cty., 390 F.3d 890, 895 (6th Cir. 2004) (citation omitted); see also Mitchell v. Hininger, 553 F.
Case: 18-2228 Document: 36-2 Filed: 09/10/2019 Page: 5
Case No. 18-2228, Vinson v. MDOC, et al.
- 6 -
App’x 602, 604 (6th Cir. 2014). Mere negligence in identifying or treating a medical need does
not rise to the level of an Eighth Amendment violation. Comstock v. McCrary, 273 F.3d 693, 703
(6th Cir. 2001). Vinson instead must show that his prison doctors perceived a risk of harm,
disregarded that risk, and failed to take reasonable measures to abate the risk. Id. That means an
inference of deliberate indifference is unwarranted so long as Drs. Miles, Rhodes, and Jenkins
“order[ed] treatment consistent with the symptoms presented and then continue[d] to monitor
[Vinson’s] condition.” Rhinehart v. Scutt, 894 F.3d 721, 743 (6th Cir. 2018) (internal quotation
marks omitted).
Vinson charges Drs. Miles, Rhodes, and Jenkins with deliberate indifference because they
performed only “perfunctory physical examinations on each of the 9 times they treated Michael
Vinson,” despite his ongoing complaints of abdominal pain, daily vomiting, and concerning
weight-loss. The subjective component requires an individual analysis as to each defendant,
Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005), and turns on whether a
jury could conclude that each doctor consciously disregarded Vinson’s serious medical needs and
thereby caused him harm, Burgess v. Fischer, 735 F.3d 462, 477 (6th Cir. 2013).
Vinson may rely on circumstantial evidence to show that each doctor knew of, but
disregarded, his AAA: a jury may “conclude that a prison official knew of a substantial risk from
the very fact that the risk was obvious.” Farmer, 511 U.S. at 842. Where a risk is well-documented
and circumstances suggest that the official has been exposed to information so that he must have
known of the risk, a jury may find that the official had knowledge. Id. at 842-43. In any case,
Vinson must present enough evidence from which a jury could conclude that each doctor “so
recklessly ignored the risk that he was deliberately indifferent to it.” Cairelli v. Vakilian, 80 F.
Case: 18-2228 Document: 36-2 Filed: 09/10/2019 Page: 6
Case No. 18-2228, Vinson v. MDOC, et al.
- 7 -
App’x 979, 983 (6th Cir. 2003); see also Rouster v. Cty. of Saginaw, 749 F.3d 437, 447 (6th Cir.
2014).
A. Dr. Miles
Dr. Miles examined Vinson nine times between October 2011 and April 2012, their last
visit roughly a month before Vinson’s May 25th death. Vinson alleges that Dr. Miles provided
grossly inadequate treatment over those visits by repeatedly conducting only cursory physical
examinations. Dr. Miles referred Vinson to an emergency room on December 30, 2011, after
deciding his symptoms could not be addressed at Cotton and warranted further evaluation. On
Vinson’s telling, Dr. Miles subjectively perceived a risk of harm, but disregarded it by “refus[ing]
to consider and implement effective alternatives” like a gastroenterologist or emergency room
referral. Vinson also charges Dr. Miles with ordering lab tests without bothering to review the
results and refusing his MRI or CAT scan requests, despite worsening vomiting and weight-loss.
In response, Dr. Miles argues that Vinson merely disagrees with his medical judgment and the
course-of-treatment provided.
Like the district court, we discern no question of material fact regarding whether Dr. Miles
knew but consciously disregarded the risk of Vinson suffering an AAA. Though he never resolved
Vinson’s symptoms, the record reveals Dr. Miles’s extensive efforts to identify the cause of
Vinson’s pain and to provide relief. Vinson’s claim that Miles abandoned that effort by failing to
scrutinize certain test results lacks support in the record. What’s more, Vinson submitted no
evidence connecting those allegedly unreviewed blood and stool tests to the undisputed cause of
death, an AAA.
Though Vinson makes much of Dr. Miles’s failure to return him to the emergency room,
as the hospital’s discharge instructions recommended if symptoms worsened, he was not under Dr.
Case: 18-2228 Document: 36-2 Filed: 09/10/2019 Page: 7
Case No. 18-2228, Vinson v. MDOC, et al.
- 8 -
Miles’s care in May 2012, when his weight-loss and vomiting markedly worsened. In fact, Dr.
Miles and Corizon nurses continued to assess and treat Vinson, with several dietary and medication
adjustments. Vinson disagrees with Dr. Miles’s course of treatment, but without evidence of
“grossly inadequate care” or that Dr. Miles “deci[ded] to take an easier but less efficacious course
of treatment,” McCarthy v. Place, 313 F. App’x 810, 814 (6th Cir. 2008) (internal quotation marks
omitted), that disagreement won’t suffice to establish the subjective component here.
2
B. Dr. Rhodes
Vinson lodges similar accusations against Dr. Rhodes. He generally argues that his
medical records establish at least three visits by Dr. Rhodes that alerted her to his symptoms, and
yet he worsened while under her care. As with Dr. Miles, Vinson faults Dr. Rhodes for failing to
refer him to a gastroenterologist, order an MRI, or return him to the emergency room in the five
months after his first hospital stay. His estate argues that he died because of her failure and refusal
to provide constitutionally adequate care.
But on this record, Vinson’s claim that Dr. Rhodes consciously disregarded his serious
medical needs fails. Dr. Miles consulted with Dr. Rhodes to seek the benefit of her background in
osteopathic medicine for diagnosing Vinson. The two doctors assessed Vinson for back pain and
constipation on October 28, 2011, which then resulted in ordering Vinson new pain medication
and a two-month follow-up appointment. And when Vinson returned to the clinic in December
with renewed complaints of left-sided abdominal pain, constipation, and nausea, Dr. Rhodes
2 As for Vinson’s motion to supplement the appellant record with evidence that Corizon
fired Miles for various administrative shortcomings and providing substandard care, we determine
that even had this court hurdled the procedural roadblocks to supplementing the record on appeal,
crediting that evidence could not have affected the granting of summary judgment, given Vinson’s
burden to show more than negligence.
Case: 18-2228 Document: 36-2 Filed: 09/10/2019 Page: 8
Case No. 18-2228, Vinson v. MDOC, et al.
- 9 -
further adjusted his course of treatment; this time, Toradol injections to alleviate the pain and a
restrictive diet until Vinson’s nausea subsided. Their final consulting visit on January 26, 2012,
went much the same.
Importantly, Dr. Rhodes last saw Vinson four months before he died—and well before his
dramatic weight loss. With this record of ongoing treatment, Vinson’s insistence that Dr. Rhodes
should have ordered Vinson’s preferred treatment course, an MRI, amounts to a disagreement with
Dr. Rhodes’s medical judgment, not constitutionally inadequate care. See Estelle, 429 U.S. at 107.
The district court properly granted summary judgment to Dr. Rhodes.
C. Dr. Jenkins
Dr. Jenkins treated Vinson for back and abdominal pain at least four times. On each visit,
Vinson argues, Dr. Jenkins went through the motions, performing only a cursory physical
examination. Vinson insists that Dr. Jenkins should have done more by way of diagnosis and
treatment.
The record evidence shows, however, that Dr. Jenkins too pursued various treatments for
Vinson. He ordered an x-ray, additional Toradol injections for pain, and sent Vinson to the
emergency room for further evaluation. Here again, Vinson’s claim reveals a disagreement with
his doctor’s medical judgment, not inadequate medical treatment amounting to a constitutional
violation. Because he raises at most a claim of medical malpractice, the district court properly
granted summary judgment to Dr. Jenkins. See Estelle, 429 U.S. at 107.
Because this record reveals that Vinson cannot meet the subjective component, we need
not go on to analyze the objective component. Blaine v. Louisville Metro. Gov’t, 768 F. App’x
515, 524 (6th Cir. 2019) (“[A]n inmate alleging cruel and unusual punishment must demonstrate
both components to prevail.”).
Case: 18-2228 Document: 36-2 Filed: 09/10/2019 Page: 9
Case No. 18-2228, Vinson v. MDOC, et al.
- 10 -
III.
In addition to his claims against Drs. Miles, Rhodes, and Jenkins, Vinson argues that
Corizon itself violated his Eighth Amendment rights by adopting a policy or custom of
understaffing physicians. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978); Johnson
v. Karnes, 398 F.3d 868, 877 (6th Cir. 2005). But before we assess Corizon’s policies for potential
liability, Vinson “must demonstrate a constitutional violation at the hands of a[] [Corizon] agent
or employee.” Fox v. DeSoto, 489 F.3d 227, 238 (6th Cir. 2007); see also Gray v. City of Detroit,
399 F.3d 612, 617 (6th Cir. 2005). As discussed, Vinson failed to establish deliberate indifference
on the part of any individual Corizon doctor, so no constitutional injury exists to support his claim
against Corizon. See Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001) (“If no
constitutional violation by the individual defendants is established, [] municipal defendants cannot
be held liable under § 1983.”). Vinson’s Monell claim necessarily fails.
IV.
We affirm the district court’s granting summary judgment to Corizon and Drs. Miles,
Rhodes, and Jenkins on Vinson’s deliberate indifference and § 1983 claims.
Case: 18-2228 Document: 36-2 Filed: 09/10/2019 Page: 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-15-05044/USCOURTS-ca10-15-05044-0/pdf.json | [
[
"Janice D. Green",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JANICE D. GREEN, personal
representative of the Estate of Gladys I.
Green, deceased,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 15-5044
(D.C. No. 4:14-CV-00094-GKF-TLW)
(N.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
_________________________________
Plaintiff Janice D. Green, personal representative of the estate of her mother,
Gladys I. Green, appeals the district court’s dismissal of her complaint seeking a
refund under 26 U.S.C. § 7422 for the taxes assessed and collected against the estate
of her father, Robert C. Green, in 1996. The district court dismissed the complaint
for lack of subject-matter jurisdiction. It ruled that essential facts required for
jurisdiction over the complaint were litigated and determined adversely to Ms. Green
*
This panel has determined 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
February 18, 2016
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 15-5044 Document: 01019572718 Date Filed: 02/18/2016 Page: 1
2
in an earlier proceeding between the same parties, and she was therefore barred under
the doctrine of issue preclusion from relitigating these issues. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
The current complaint is the sixth federal complaint that either Ms. Green or
her mother has filed seeking to recover the taxes, interest, and penalties paid by
Mr. Green’s estate in 1996. See Green v. United States, 428 F. App’x 863, 865-66
(10th Cir. 2011) (describing the litigation history related to the sought-after refund)
(“Green IV”). In Green IV a panel of this court ruled the refund claim was
jurisdictionally barred as no duly filed claim for the refund was timely filed within
the limitations period set by 26 U.S.C. § 6511(a). See id. at 867-69. (Green V was
filed in 2012 and dismissed for lack of jurisdiction.) Ms. Green now asserts a new
legal theory why she believes the refund claim is not jurisdictionally barred—
namely, that the Internal Revenue Service (IRS) waived the estate’s failure to file a
timely formal claim.
No suit for a tax refund may be brought against the federal government “until
a claim for refund or credit has been duly filed with the Secretary [of the Treasury],
according to the provisions of law in that regard.” 26 U.S.C. § 7422(a). This is a
“jurisdictional requirement [that] cannot be waived by either [the government] or the
court.” Rosenberg v. United States, 72 Fed. Cl. 387, 392 (2006). The requirements
for a formal (“duly filed”) claim are set by Treasury regulation
26 C.F.R. § 301.6402–2. To be “duly filed,” the filing also must be timely under
Appellate Case: 15-5044 Document: 01019572718 Date Filed: 02/18/2016 Page: 2
3
§ 6511(a), that is, “within 3 years from the time the return was filed or 2 years from
the time the tax was paid, whichever [is] later.” 26 U.S.C. § 6511(a). “[U]nless a
claim for refund of a tax has been filed within the time limits imposed by § 6511(a), a
suit for refund, regardless of whether the tax is alleged to have been ‘erroneously,’
‘illegally,’ or ‘wrongfully collected,’ may not be maintained in any court.” United
States v. Dalm, 494 U.S. 596, 602 (1990) (citations omitted). In this case the estate
tax was paid in 1996, and Ms. Green admitted in the prior proceeding “that no formal
claim was filed until July 18, 2002,” when an administrative claim letter was sent to
the IRS. Green IV, 428 F. App’x at 868.
Courts have ruled, however, that something less than a formal claim may
sometimes suffice. “There are four recognized exceptions to the formal claim
requirement.” Blue v. United States, 108 Fed. Cl. 61, 68 (2012). These are (1) the
informal–claim doctrine; (2) the general–claim doctrine; (3) the germaneness
doctrine; and (4) the waiver doctrine. See id. & n.5; Martti v. United States,
121 Fed. Cl. 87, 101 (2015).
In Green IV, Ms. Green argued that documents had been submitted to the IRS
which constituted an informal claim. See Green IV, 428 F. App’x at 868. Under the
informal–claim doctrine, “a timely claim with purely formal defects”—that is, an
“informal claim”—is deemed sufficient “if it fairly apprises the IRS of the basis for
the claim within the limitations period,” so long as it is “later perfected by [a] formal
claim[].” Martti, 121 Fed. Cl. at 101 (internal quotation marks omitted). “To qualify
as an informal claim, the claim must (1) be submitted within the limitations period,
Appellate Case: 15-5044 Document: 01019572718 Date Filed: 02/18/2016 Page: 3
4
(2) have a written component, and (3) adequately give the IRS notice that the
plaintiff is seeking a refund for certain years.” Id. In Green IV we observed that
“[n]one of the exhibits cited by Ms. Green demonstrate that the IRS knew that a
refund claim was being made . . . [nor was any] investigation or action taken by the
IRS in response to a refund claim.” Green IV, 428 F. App’x at 869. We held that
“because there was no informal claim filed with[] the IRS within the statutory period,
the administrative claim letter sent to the IRS on July 18, 2002, was untimely.” Id.
Ms. Green now argues that the IRS waived the formal-claim requirement by
reviewing her father’s estate in early 1998 as part of a special audit program. “Under
the waiver doctrine, if the IRS adjudicates an informal claim as though it were a
formal claim, the requirement of formality may be considered waived.” Martti,
121 Fed. Cl. at 101. “The waiver doctrine applies when (1) there is clear evidence
that the [IRS] understood the claim that was made, even though there was a departure
in form in the submission and (2) it is unmistakable that the [IRS] dispensed with the
formal requirements and examined the claim.” Id.
The district court dismissed Ms. Green’s present claim, ruling that the
“submission of an informal claim is necessary to any assertion of the waiver
doctrine,” and because this court had ruled that no informal claim was ever filed,
Ms. Green was barred from asserting waiver by the doctrine of issue preclusion.
Aplt. App. at 131.
Appellate Case: 15-5044 Document: 01019572718 Date Filed: 02/18/2016 Page: 4
5
II. DISCUSSION
On appeal Ms. Green argues that the district court erred in ruling that the
waiver doctrine operates only after an informal claim is filed. She contends that an
informal claim is not essential to the waiver doctrine, so issue preclusion does not bar
her complaint.1
Our review is de novo. See Guttman v. Khalsa, 669 F.3d 1101, 1109
(10th Cir. 2012) (reviewing application of issue preclusion de novo); Butler v.
Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008) (reviewing a dismissal for lack of
jurisdiction de novo).
Under the doctrine of issue preclusion, “once a court has decided an issue of
fact or law necessary to its judgment, that decision may preclude relitigation of the
issue in a suit on a different cause of action involving a party to the first case.” Allen
v. McCurry, 449 U.S. 90, 94 (1980). Issue preclusion bars reconsideration if:
(1) the issue previously decided is identical with the one presented in the
action in question, (2) the prior action has been finally adjudicated on the
merits, (3) the party against whom the doctrine is invoked was a party, or in
privity with a party, to the prior adjudication, and (4) the party against
whom the doctrine is raised had a full and fair opportunity to litigate the
issue in the prior action.
1
For the first time in her reply brief, Ms. Green argues that Green IV should
not have any preclusive effect because she was proceeding pro se. But “we routinely
have declined to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007). In any event, the fact that she appeared pro se in the prior
proceeding does not affect the preclusive force of the judgment. Nelson v.
Tsamasfyros (In re Tsamasfyros), 940 F.2d 605, 607 (10th Cir. 1991) (“We reject any
suggestion that because [the party] appeared pro se in the [prior] proceeding,
collateral estoppel is inapposite.”).
Appellate Case: 15-5044 Document: 01019572718 Date Filed: 02/18/2016 Page: 5
6
Park Lake Res. LLC v. U.S. Dep’t of Agric., 378 F.3d 1132, 1136 (10th Cir. 2004).
“[D]ismissals for lack of jurisdiction preclude relitigation of the issues determined in
ruling on the jurisdiction question.” Id. (internal quotation marks omitted) (dismissal
for lack of jurisdiction is an important exception to the final-adjudication-on-themerits requirement).
Ms. Green’s claim is barred by issue preclusion. To begin with, after she lost
her timeliness argument in Green IV, she cannot raise a new timeliness argument in
later litigation. In determining the scope of the “issue” for preclusion purposes, we
“balanc[e] . . . [two] important interests: on the one hand, a desire not to deprive a
litigant of an adequate day in court; on the other hand, a desire to prevent repetitious
litigation of what is essentially the same dispute.” Restatement (Second) of
Judgments § 27 cmt. c (1982). The relative weight of the two interests here is clear.
When Ms. Green was arguing in Green IV that her claim was timely, she should have
argued every exception to the formal-claim requirement that she could think of, or
forever hold her peace. The courts cannot be expected to hear five suits on the
matter—one arguing that a formal claim was filed and four more arguing each of the
exceptions to the requirement.
In any event, Green IV definitively resolved against Ms. Green a predicate to
her waiver argument when it held that she had failed to file an informal claim.
Ms. Green contends that the waiver doctrine does not require that an informal claim
first be filed with the IRS, citing Blue, 108 Fed. Cl. at 68-69, for what she believes is
an example of a case in which the waiver doctrine was applied even though there was
Appellate Case: 15-5044 Document: 01019572718 Date Filed: 02/18/2016 Page: 6
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no finding that an informal claim had been filed. To be sure, Blue ruled that under
the facts of that case, the informal-claim doctrine did not apply yet the waiver
doctrine did. But the reason Blue rejected the informal-claim exception was that the
taxpayer never filed a formal claim, not that there was no informal claim. See id.
at 68. Blue stated expressly that the waiver exception requires an informal claim.
See id. at 69 (“The waiver doctrine . . . provides an exception to the formal refund
claim requirements where the IRS has adjudicated an informal claim as if it were
formal.” (emphasis added)).
Perhaps Ms. Green now has more evidence of an informal claim than she had
in Green IV, but if issue preclusion ever applies, it forbids trying to prove a fact after
a prior rejection. The district court correctly ruled that Ms. Green is precluded from
arguing that the waiver doctrine applies.
The judgment of the district court is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
Appellate Case: 15-5044 Document: 01019572718 Date Filed: 02/18/2016 Page: 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_15-cv-00830/USCOURTS-caed-1_15-cv-00830-2/pdf.json | [
[
"Aaron Klein",
"Plaintiff"
],
[
"Kathleen Longwell",
"Defendant"
],
[
"Michael Musacco",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
AARON KLEIN,
Plaintiff,
v.
KATHLEEN LONGWELL, et al.,
Defendants.
CASE NO. 1:15-cv-00830-LJO-MJS (PC)
ORDER DENYING MOTION FOR
RECONSIDERATION
(ECF No. 11)
I. PROCEDURAL HISTORY
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.
On June 26, 2015, the Magistrate Judge assigned to the case screened Plaintiff’s
complaint and dismissed it for failure to state a claim, but gave leave to amend. (ECF
No. 10.) Thereafter, Plaintiff filed objections to the screening order (ECF No. 11), which
the Court construes as a motion for reconsideration.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 72(a) allows parties to file objections to
nondispositive orders decided by a Magistrate Judge. “The district judge in the case
must consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Id.
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Similarly, Local Rule 303(c) allows parties to seek reconsideration by a District
Judge of a Magistrate Judge’s pretrial rulings. Local Rule 303(c). The assigned District
Judge shall review all such requests for reconsideration under the "clearly erroneous or
contrary to law" standard set forth in 28 U.S.C. § 636(b)(1)(A). Local Rule 303(f) (citing
Fed. R. Civ. P. 72(a)).
III. ANALYSIS
A. Plaintiff’s Allegations
Plaintiff is detained at Coalinga State Hospital pursuant to the Sexually Violent
Predator Act. He names as Defendants the following persons in their individual
capacities: (1) Kathleen Longwell, Ph.D., Psychologist for the Department of State
Hospitals (“DSH”); and (2) Michael Musacco, Ph.D., Psychologist for DSH.
Plaintiff’s essentially alleges that evaluations conducted by Defendants in relation
to his commitment proceedings erroneously relied on Plaintiff’s juvenile offenses. Plaintiff
seeks to have Defendants removed from his case and requests independent evaluations
and a new probable cause hearing.
B. Screening Order
The Magistrate Judge concluded that Plaintiff’s request for new, independent
evaluations and a new probable cause hearing attacked the very proceedings that led to
his detention, and that no relief could be granted without invalidating Plaintiff’s detention.
Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Huftile v. Miccio-Fonseca, 410 F.3d 1136,
1141 (9th Cir. 2005). Accordingly, the Magistrate Judge concluded that such claims are
cognizable only in habeas corpus and may not be brought in a section 1983 action.
C. Objections
Plaintiff claims that the screening order is in error because he does not seek to
invalidate his commitment proceedings, but rather to correct underlying Due Process
violations. He further claims that the Magistrate Judge erred in concluding that Plaintiff
has been adjudicated a Sexually Violent Predator, when in fact his commitment
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proceedings are ongoing. He presents further argument as to why Defendants’
evaluations were improper.
D. Analysis
Plaintiff’s complaint was unclear as to whether Plaintiff has been adjudicated a
Sexually Violent Predator. To the extent he has, his claims represent an attempt to
indirectly attach his detention and are Heck barred for the reasons stated by the
Magistrate Judge. 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, 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 Plaintiff’s commitment proceedings are ongoing, the Court must
abstain from addressing his claims. Under principles of comity and federalism, a federal
court should not interfere with ongoing state criminal proceedings by granting injunctive
or declaratory relief except under special circumstances. Younger v. Harris, 401 U.S. 37
(1971); Samuels v. Mackell, 401 U.S. 66 (1971). Younger abstention is required when:
(1) state judicial proceedings are pending; (2) the state proceedings involve important
state interests; and (3) the state proceedings afford adequate opportunity to raise the
constitutional issue. Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.
423, 432 (1982); Dubinka v. Judges of the Super. Ct., 23 F.3d 218, 223 (9th Cir. 1994).
Courts in this circuit have unanimously concluded that these principles likewise require
the Court to abstain from interfering in civil proceedings to determine whether Plaintiff is
a sexually violent predator. See, e.g., Mackenzie v. Holder, No. ED CV 13–08217–VBF–
JC, 2013 WL 8291434, at *2 (Nov. 27, 2013), and cases cited therein. Accordingly, the
Court will abstain from addressing Plaintiff’s claim in this civil action while his
commitment proceedings are pending.
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Based on the foregoing, the Magistrate Judge did not clearly err in concluding that
Plaintiff’s complaint failed to state a claim.
IV. CONCLUSION AND ORDER
For the foregoing reasons, Plaintiff has not presented a basis for reconsideration
of the Magistrate Judge’s screening order. Accordingly, it is HEREBY ORDERED that:
1. Plaintiff’s objections (ECF No. 11), which the Court construes as a motion
for reconsideration, are DENIED;
2. To the extent Plaintiff is able to cure the deficiencies noted herein and in
the screening order, Plaintiff shall file an amended complaint within thirty
(30) days of the date this order;
3. If Plaintiff fails to file an amended complaint in compliance with this order,
the action will be dismissed, with prejudice, for failure to comply with a
court order and failure to prosecute.
IT IS SO ORDERED.
Dated: July 16, 2015 /s/ Lawrence J. O’Neill
UNITED STATES DISTRICT JUDGE
4.
Case 1:15-cv-00830-LJO-MJS Document 12 Filed 07/16/15 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-5_06-cv-00216/USCOURTS-ared-5_06-cv-00216-2/pdf.json | [
[
"Benita Ann Pridgeon",
"Plaintiff"
],
[
"Phil Shirley",
"Defendant"
],
[
"Southeast Arkansas College",
"Defendant"
],
[
"Diann Williams",
"Defendant"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
BENITA A. PRIDGEON PLAINTIFF
VS. CASE NO. 5:06CV0216
SOUTHEAST ARKANSAS COLLEGE
DIANN WILLIAMS, Vice President of Assessment DEFENDANTS
ORDER
Pending is Defendants’ motion for summary judgment. (Docket # 35). The Court
granted Plaintiff three extensions of time in which to respond to the pending motion, Plaintiff
failed to file a response. For the reasons set forth herein, Defendants’ motion is granted.
Facts
Plaintiff, Benita Ann Pridgeon, a registered nurse began her employment with Southeast
Arkansas College (“SEARK”) as a Practical Nurse Instructor in January of 1994. SEARK is an
educational institution located in Pine Bluff, Arkansas. As a Practical Nurse Instructor,
Pridgeon’s duties included, among other things, teaching assigned classes, attending general
faculty, division, and departmental meetings, participation in staff development activities, and
cooperating in the execution of college, division, and department policies. Diann Williams, Vice
President for Assessment/Nursing and Allied Health, was Pridgeon’s immediate supervisor
throughout her employment with SEARK. At the time of the events about which Pridgeon is
complaining, Dr. Phil Shirley was the President of SEARK. Dr. Terry Puckett was the President
of SEARK when Pridgeon was hired in 1994.
The Instructor/Coordinator of Practical Nursing is an unofficial program position title
used by the Nursing and Allied Health Division for an instructor whose teaching load is offset by
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coordinating clinical schedules and ensuring program compliance with the Arkansas State Board
of Nursing (ASBN) standards. The job duties for an Instructor/Coordinator are the same as a
Practical Nurse Instructor with the exception that the teaching load is lessened to allow time for
clinical coordination and ASBN program approval activities. In order for someone to be
appointed to the Instructor/Coordinator position, a majority of the Practical Nursing faculty must
be in favor of the person. The Instructor/Coordinator chosen to assume the coordinator
responsibilities must show team spirit, good personal relations with peers, staff, and clinical
agencies, and the public in general. The Instructor/Coordinator is often required to work
additional hours outside the typical 8-4 work schedule, without additional compensation. There
is no requirement that an opening for an Instructor/Coordinator be advertised under SEARK
policy because it is not a formal position. The employee chosen as Instructor/Coordinator is not
given a pay raise. That employee is given a stipend of $1500.00 to account for the overtime
hours required of the position. This additional $1500.00 is not added to the employee’s base
salary.
Sharon Cyrus (“Cyrus”) was an Instructor/Coordinator of Practical Nursing for several
years during Pridgeon’s employment with SEARK. Cyrus resigned her position as
Instructor/Coordinator of Practical Nursing in July of 2005. Cyrus was 50 years old at the time
she resigned. Katina Camp (“Camp”) was recommended to take over the coordinator
activities of the Practical Nursing program by four of six members of the Practical Nursing
faculty. Camp was 33 years old at the time she was appointed Instructor/Coordinator.
Pridgeon was a member of the original search committee that recommended Camp for a
full time position in the Practical Nursing program in January, 2003. When she was hired in
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January 2003, Camp’s area of strength, according to the search committee, was “good people
skills,” which is critical to successful coordination. Prior to Cyrus’ resignation, Camp involved
herself in the program and division matters and was more familiar with the coordination aspect
of the program than other faculty members. Camp’s recommendation by her peers for
Instructor/Coordinator was based on her experience and satisfactory performance in coordinating
the first level of the evening and weekend part time program.
On September 8, 1994, Pridgeon received a verbal disciplinary warning after a
confrontation with a faculty member. On March 25, 1999, Pridgeon received a verbal warning
from Diann Williams regarding her discussing a student’s examination scores with other students
after Williams received a letter from one of Pridgeon’s former students. On April 23, 2001,
Pridgeon received a verbal warning from Williams after a complaint was lodged concerning
Pridgeon releasing “secure” exam questions to students. On March 7, 2002, Pridgeon was given
a verbal warning after co-workers complained that she was “unhelpful.” In April 2002, Williams
spoke with Pridgeon regarding the strained relationships between she and her colleagues. On
August 28, 2002, Pridgeon violated departmental policy by signing a registration card for her
daughter to take a class for which her daughter did not meet the published prerequisite
requirements. She received a written warning for violating school policies. In August 2004,
Pridgeon received verbal and written warnings over reported incidents of Pridgeon making
derogatory comments to staff members and students about other teachers. This incident
included a meeting with Pridgeon, Williams, and Dr. Shirley, SEARK’s President.
In October of 2005, Pridgeon violated SEARK’s sick leave policy by working at a part
time job while on sick leave with the college. After violating SEARK’s sick leave policy,
Case 5:06-cv-00216-JMM Document 54 Filed 09/20/07 Page 3 of 8
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Pridgeon’s employment with SEARK was terminated effective October 5, 2005. Pridgeon was
terminated for violating SEARK’s sick leave policy, violating departmental and/or college
policy, and lack of team spirit. Per SEARK’s policy, Pridgeon orally grieved her termination
decision to Williams. Williams received a letter October 17, 2005 that contained Pridgeon’s
Grievance Statement. Pridgeon, Williams, and Dr. Shirley had a meeting on October 24, 2005
and Pridgeon was allowed to present her grievance regarding her termination. Williams then
wrote a letter dated October 25, 2005 to Pridgeon informing her that no new information had
been provided at their meeting that impacted her decision to terminate Pridgeon. Pridgeon
appealed her termination to SEARK’s President, Dr. Shirley. By letter dated November 15,
2005, Dr. Shirley upheld Williams’ decision to terminate Pridgeon’s employment. Pridgeon then
appealed to SEARK’s Board of Trustees. Dr. Shirley denied Pridgeon’s appeal pursuant to his
discretion under SEARK Administrative Bulletin No. 10. Under school policy, a violation of the
sick leave policy could result in termination.
Plaintiff filed this cause of action alleging age discrimination and defamation in the
termination of her employment. Plaintiff has sued SEARK and Diann Williams under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §1983 and Federal Rule of Civil Procedure 18(a) for a
pendant state law defamation claim. Defendants move for summary judgment on all claims.
Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material fact, so
that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874
(8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial
courts in determining whether this standard has been met:
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The inquiry is the threshold inquiry of determining whether there is
a need for trial -- whether, in other words, there are genuine factual
issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The Eighth Circuit Court of Appeals has cautioned that summary judgment should be
invoked carefully so that no person will be improperly deprived of a trial of disputed factual
issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir. 1979), cert. denied,
444 U.S. 991 (1979). The Eighth Circuit set out the burden of the parties in connection with a
summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the moving party for summary judgment is only to
demonstrate, i.e., ‘[to] point out to the District Court,’ that the
record does not disclose a genuine dispute on a material fact. It is
enough for the movant to bring up the fact that the record does not
contain such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is discharged,
and, if the record in fact bears out the claim that no genuine dispute
exists on any material fact, it is then the respondent’s burden to set
forth affirmative evidence, specific facts, showing that there is a
genuine dispute on that issue. If the respondent fails to carry that
burden, summary judgment should be granted.
Id. at 1339. (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-274 (8th
Cir. 1988) (citations omitted)(brackets in original)). Only disputes over facts that may affect the
outcome of the suit under governing law will properly preclude the entry of summary judgment.
Anderson, 477 U.S. at 248.
Discussion
Plaintiff brings her action pursuant to Title VII of the Civil Rights Act of 1964 and 42
U.S.C. §1983 alleging that she was discriminated against based on her age after a younger
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SEARK employee was appointed to the Instructor/Coordinator Practical Nursing position instead
of her and after being terminated for violating school policies. Title VII does not prohibit
discrimination on the basis of age. Plaintiff does not cite the Age Discrimination in Employment
Act (“ADEA”) (29 U.S.C. § 621 et seq.) as the basis of her age discrimination claim, however,
because Plaintiff alleges that the acts and omissions of SEARK in failing to place her in the
Instructor/Coordinator position and in her termination constituted age discrimination, the Court
will analyze this claim under the ADEA.
Federal Courts have held that individual defendants cannot be held liable under either
Title VII or the ADEA, accordingly, Plaintiff cannot maintain an action for age discrimination
against Williams individually. Further, the Supreme Court has held that the ADEA did not
validly abrogate states’ Eleventh Amendment sovereign immunity from suit by private
individuals. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000). Accordingly, Plaintiff cannot
maintain an age discrimination claim against SEARK or Williams in her official capacity. White
v. Arkansas Dept. of Health and Human Services, 2006 WL 229896, 3 (E.D.Ark,2006).
Plaintiff’s §1983 claims also fail. The Eleventh Amendment to the Constitution
provides:
The judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by citizens of another state, or by citizens or subjects of any foreign state.
The Supreme Court has held that the Eleventh Amendment extends to preclude suits against a
state, state agency, entity or institution from suits by its own citizens as well as citizens of
another state or citizens of any foreign state. Edelman v. Jordan, 415 U.S. 651 (1974), Alabama
v. Pugh, 438 U.S. 781 (1978). Additionally, the Eleventh Amendment prohibits federal court
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lawsuits seeking monetary damages from individual state officers in their official capacities
because such lawsuits are essentially for the recovery of money from the state. Ford Motor Co.
v. Department of the Treasury, 323 U.S. 459 (1945). Moreover, the Supreme Court has held that
“neither a State nor its officials acting in their official capacities are ‘persons’ under §1983"
when sued for damages. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus,
Plaintiff’s §1983 claims against SEARK should be, and hereby are dismissed. Plaintiff’s suit
against the individual Defendant in her official capacity to recover damages is also dismissed.
State officials are “persons”, however, under §1983 when sued for injunctive relief and
the Eleventh Amendment does not bar such relief. Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 (1989). In addition, the Eleventh Amendment does not prohibit a suit for damages
against a state officer in his individual capacity. Nix v. Norman, 879 F.2d 429, 432-33 & n. 3
(8th Cir.1989).
Plaintiff failed to respond to Defendant’s motion for summary judgment. Under the local
rules applicable to federal district courts in Arkansas, a party opposing a motion for summary
judgment “ shall file ... a separate, short and concise statement of the material facts as to which it
contends a genuine issue exists to be tried.” D. Ark. R. 56.1(b). If the opposing party fails to
contest the facts described in the motion for summary judgment, those facts “shall be deemed
admitted.” Id. 56.1(c) Pursuant to the local rules, then, the facts as described in the Defendants’
motion for summary judgment are the undisputed facts of this case. Beavers v. Bretherick ,
2007 WL 1109940 (8th Cir. 2007).
Based upon the undisputed facts, Plaintiff did not apply for the Instructor/Coordinator
Practical Nursing position and Camp was chosen based on her experience and satisfactory
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performance. In addition, Camp was selected by a majority of her peers. Further, the undisputed
facts demonstrate that Plaintiff was terminated for violating SEARK’s sick leave policy and
during her employment, Plaintiff received several verbal and written disciplinary warnings for
various policy violations. Plaintiff has offered no evidence to demonstrate an inference of
discrimination in the selection of Camp for the Instructor/ Coordinator position or her
termination. SEARK has offered rational and legitimate non discriminatory reasons for its
actions and Plaintiff has offered no evidence of pretext. Accordingly, Plaintiff’s §1983 claims
are also dismissed. The Court declines to exercise pendent jurisdiction over the remaining state
law claim.
For these reasons, Defendants’ motion, docket # 35, is granted.
IT IS SO ORDERED this 20th day of September, 2007.
____________________________________
James M. Moody
United States District Judge
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_13-cv-01498/USCOURTS-caed-1_13-cv-01498-12/pdf.json | [
[
"Bernardina Rodriguez",
"Plaintiff"
],
[
"Taco Bell Corp.",
"Defendant"
]
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
BERNARDINA RODRIGUEZ,
Plaintiff,
v.
TACO BELL CORP.,
Defendant.
Case No. 1:13-cv-01498-SAB
ORDER DISMISSING ACTION WITH
PREJUDICE
(ECF No. 74, 75)
Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that this action is
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: March 2, 2016
UNITED STATES MAGISTRATE JUDGE
Case 1:13-cv-01498-SAB Document 76 Filed 03/02/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_10-cv-02842/USCOURTS-caed-2_10-cv-02842-3/pdf.json | [
[
"Yolanda Fryson",
"Defendant"
],
[
"Christopher Lindsay",
"Plaintiff"
],
[
"Yuba County Child Protective Services",
"Defendant"
]
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This action proceeds before the undersigned pursuant to Eastern District of California 1
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
The other defendant named in this action is Yolanda Fryson. On November 19, 2010, 2
Fryson filed an answer on a California Judicial Council Form. (Fryson’s Answer, Dkt. No. 5.)
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CHRISTOPHER LINDSAY,
Plaintiff, No. 2:10-cv-02842 LKK KJN PS
v.
YOLANDA FRYSON, individually and
in official capacity as Social Worker;
YUBA COUNTY CHILD PROTECTIVE
SERVICES,
Defendants. ORDER &
FINDINGS AND RECOMMENDATIONS
/
Presently before the court are defendant County of Yuba’s (the “County”) motion 1
to dismiss plaintiff’s claims against it, motion for a more definite statement, and motion to strike
plaintiff’s request for punitive damages filed pursuant to Federal Rules of Civil
Procedure 12(b)(6), 12(e), and 12(f), respectively (Dkt. No. 13). The court heard the County’s 2
motion on its law and motion calendar on June 9, 2011. Attorney Clayton T. Cook appeared on
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On April 1, 2011, Fryson filed a response to an order to show cause, which represents 3
that Fryson is presently serving a prison sentence of nine years and four months. (Dkt. No. 11.)
Because the undersigned recommends that plaintiff be granted leave to amend his 4
complaint in most respects, the County’s motion for a more definite statement is denied.
2
behalf of the County. Defendant Yolanda Fryson, who is incarcerated, did not appear or request
an opportunity to appear. Plaintiff, who is proceeding without counsel, appeared on his own 3
behalf.
The undersigned has considered the briefs, oral arguments, and the appropriate
portions of the record in this case and, for the reasons stated below, recommends that the
County’s motion to dismiss be granted in part and denied in part. The undersigned overrules the 4
County’s evidentiary objection to an exhibit filed by plaintiff with his written opposition.
Finally, the undersigned recommends that the County’s motion to strike plaintiff’s prayer for
punitive damages be denied.
I. BACKGROUND
Plaintiff’s complaint alleges claims against: (1) Yolanda Fryson, who is alleged to
be have been a social worker employed by Yuba County Child Protective Services (“Yuba CPS”)
at all times material to plaintiff’s claims; and (2) Yuba CPS. (See Compl. ¶¶ 4-5, 12-13)
Plaintiff’s claims arise from an alleged, failed blackmail scheme perpetrated by Fryson against
plaintiff in September and October of 2008. (See id. ¶¶ 19-23.)
Plaintiff alleges that Fryson contacted him and told him that she “had information
that a claim was filed and that Plaintiff was being accused of sexual molestation of a minor,
sexual relations with a 17 year old girl and physical abuse of Plaintiff’s girlfriend.” (Compl.
¶ 20.) Plaintiff further alleges that Fryson told him that she could “make the charges ‘go away’”
in exchange for a payment of $10,000. (Id. ¶ 21.) Fryson allegedly “showed her Yuba County
badge” to plaintiff during Fryson’s initial meeting with plaintiff. (Id.)
Plaintiff alleges that he was forced to retain legal counsel to defend against the
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Fryson’s answer alleges that plaintiff “worked with detectives to set up a sting 5
operation” against Fryson. (Fryson’s Answer at 2.) However, Fryson asserts that the goal of the
“sting operation” was to entrap her into accepting money offered to her by plaintiff. (See id.)
3
purported charges of molestation and abuse and any criminal matters that might arise therefrom.
(See Compl. ¶ 22.) Plaintiff alleges that after speaking with his attorney, he contacted the Placer
County Sheriff’s Department, and that the Placer County Sheriff’s Department “assisted the
Plaintiff in watching the bribe being taken and bugged the phone calls made from [Fryson].” (Id.
¶ 23.) Plaintiff appears to allege, in essence, that law enforcement personnel assisted him in
setting up a “sting operation” to catch Fryson accepting a bribe.
5
Plaintiff claims that he was damaged by these events in several respects. He
alleges that he was forced to “put up a $5,000 retainer for an attorney for the quick advise [sic]
and direction for the ordeal that [he] was going through.” (Compl. ¶ 24.) He further alleges that
he “could not go home or to his office until he was able to prove that the allegations and claims
made of him sexually molesting a minor was [sic] fraudulent.” (Id.) He also alleges that he
suffered mental effects of the ordeal including high anxiety, depression, sleep loss, heavy
drinking, mood swings toward loved ones, loss of interest in everything he was doing, and
suicidal thoughts. (See id. ¶ 25-28.)
Plaintiff alleges that he “submitted a timely claim under the government tort
claims act on or about February 4, 2009, to defendant Public Entity.” (Compl. ¶ 1.) Plaintiff
subsequently filed his complaint on October 21, 2010.
Plaintiff’s complaint alleges the following six claims for relief against Yuba CPS:
(1) violation of plaintiff’s due process rights provided by the Fourth, Fifth and Fourteenth
Amendments to the United States Constitution (Compl. ¶¶ 30-37); (2) violation of plaintiff’s
rights of equal protection provided by the Fourteenth Amendment (id. ¶¶ 38-46); (3) negligent
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Plaintiff’s fourth claim for relief, alleging fraud, appears out of sequential order in the 6
complaint and follows plaintiff’s fifth and sixth claims for relief.
Plaintiff’s also alleges his Section 1983 claims and his state law claims for negligent 7
supervision, hiring, and retention, fraud, negligent infliction of emotional distress, and violation
of the Bane Act against Fryson. Plaintiff’s fifth claim for relief alleges a claim intentional
infliction of emotional distress, but only against Fryson. (Compl. ¶¶ 60-70.)
On March 17, 2011, the undersigned conducted a status (pretrial scheduling) 8
conference, but the County had not yet appeared in this action. (See Order & Order to Show
Cause, Mar. 18, 2011, Dkt. No. 10.) At the scheduling conference, plaintiff represented that he
had properly served Yuba CPS. (Id. at 2.) On February 18, 2011, plaintiff had filed a proof of
service form indicating service of the complaint and summons on the County that same day.
(Proof of Personal Service, Dkt. No. 8.) Although plaintiff potentially could have sought a
clerk’s entry of default against the County, plaintiff elected to re-serve the County at an alternate
address. (See Order, Mar. 18, 2011, at 2-3.)
4
supervision, hiring, and retention (id. ¶¶ 47-59); (4) fraud (id. ¶¶ 76-81); (5) negligent infliction 6
of emotional distress (id. ¶¶ 71-75); and (6) violation of the Tom Bane Civil Rights Act (“Bane
Act”), Cal. Civ. Code § 52.1 (id. ¶¶ 82-90). Plaintiff further alleges that Yuba CPS is 7
responsible or liable for the acts of its employees committed during the course and scope of their
employment pursuant to Government Code Section 815.2. (See id. ¶¶ 5-6.) Plaintiff seeks
compensatory damages, punitive damages, attorney’s fees and costs, and civil penalties. (See id.
at p. 14.)
On April 15, 2011, the County filed the pending motions. Plaintiff filed a timely 8
written opposition (“Pl.’s. Opp’n”), which appends exhibits and a declaration of his attorney,
who does not appear to represent plaintiff in this action. The County filed a reply and an
objection to one piece of evidence submitted by plaintiff; the objection is addressed below.
II. LEGAL STANDARDS
A. Motions To Dismiss For Failure To State A Claim, Fed. R. Civ. P. 12(b)(6)
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6)
challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase
Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the “notice pleading” standard
of the Federal Rules of Civil Procedure, a plaintiff’s complaint must provide, in part, a “short and
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plain statement” of plaintiff’s claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see
also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053
(2010). “A complaint may survive a motion to dismiss if, taking all well-pleaded factual
allegations as true, it contains ‘enough facts to state a claim to relief that is plausible on its
face.’” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009)). “‘A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812
(9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in
the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v.
Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is “not, however, required to accept as
true conclusory allegations that are contradicted by documents referred to in the complaint, and
[the court does] not necessarily assume the truth of legal conclusions merely because they are
cast in the form of factual allegations.” Paulsen, 559 F.3d at 1071 (citations and quotation marks
omitted). The court must construe a pro se pleading liberally to determine if it states a claim and,
prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity
to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v.
Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (stating that “pro se pleadings are liberally construed,
particularly where civil rights claims are involved”); see also Hebbe v. Pliler, 627 F.3d 338, 342
& n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when
evaluating them under Iqbal.).
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court “may
generally consider only allegations contained in the pleadings, exhibits attached to the complaint,
and matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of
Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although
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the court may not consider a memorandum in opposition to a defendant’s motion to dismiss to
determine the propriety of a Rule 12(b)(6) motion, see, e.g., Schneider v. Cal. Dep’t of Corr., 151
F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in
deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2
(9th Cir. 2003) (“Facts raised for the first time in plaintiff’s opposition papers should be
considered by the court in determining whether to grant leave to amend or to dismiss the
complaint with or without prejudice.”) (citing Orion Tire Corp. v. Goodyear Tire & Rubber Co.,
268 F.3d 1133, 1137-38 (9th Cir. 2001))); see also Simmonds v. Credit Suisse Sec. (USA) LLC,
638 F.3d 1072, 1091 (9th Cir. 2011) (considering letters submitted with an opposition to a
motion to dismiss in deciding to dismiss several complaints with prejudice).
B. Motion to Strike, Fed. R. Civ. P. 12(f)
Federal Rule of Civil Procedure 12(f) provides that a district court “may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and
money that must arise from litigating spurious issues.” Sidney-Vinstein v. A.H. Robins Co., 697
F.2d 880, 885 (9th Cir. 1983); see also Amaral v. Wachovia Mortgage Corp., 692 F. Supp. 2d
1226, 1230 (E.D. Cal. 2010). Motions to strike are generally disfavored, and this court has
previously stated that a motion to strike brought pursuant to Rule 12(f) “should not be granted
unless it is clear that the matter to be stricken could have no possible bearing on the subject
matter of the litigation.” Neveu v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005)
(citation and quotation marks omitted); see also Ollier v. Sweetwater Union High Sch. Dist., 735
F. Supp. 2d 1222, 1223-24 (S.D. Cal. 2010); Osei v. Countrywide Home Loans, 692 F. Supp. 2d
1240, 1255 (E.D. Cal. 2010); Wolk v. Green, 516 F. Supp. 2d 1121, 1134 (N.D. Cal. 2007).
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III. DISCUSSION
A. Plaintiff’s Section 1983 Claims Are Subject to Dismissal
Plaintiff’s complaint pleads two claims pursuant to 42 U.S.C. § 1983, both of
which allege violations of plaintiff’s constitutional rights. Plaintiff’s first claim for relief alleges
violations of plaintiff’s due process rights. His second claim for relief alleges a violation of his
equal protection rights. The County moves to dismiss both claims, and each claim is addressed
in turn below.
Plaintiff’s claims of violations of his constitutional rights are permissibly brought
pursuant to 42 U.S.C. § 1983, which provides in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . , subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress . . . .
Generally, with respect to individual defendants, “Section 1983 imposes civil
liability upon an individual who under color of state law subjects or causes, any citizen of the
United States to the deprivation of any rights, privileges or immunities secured by the
Constitution and laws.” Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (citing 42 U.S.C.
§ 1983). “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.” Long v.
County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48
(1988)); accord Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988) (“To make
out a cause of action under section 1983, plaintiffs must plead that (1) the defendants acting
under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal
statutes” (citation omitted).).
A municipality may also be held liable for civil rights violations under Section
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1983, but the standards governing the liability of a municipality materially differ from those that
govern the liability of individuals who acted under color of state law. Relevant here, in Monell
v. Department of Social Services, 436 U.S. 658, the Supreme Court limited municipal liability
and held that “a municipality cannot be held liable solely because it employs a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Id. at 691. Instead, “[l]ocal governing bodies . . . can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by that body’s officers.” Id. at 690 (footnote omitted). The Court further stated
that “it is when execution of a [local] government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury that the government as an entity is responsible under § 1983.” Id. at 693; see also Bd.
of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997) (“[W]e have
required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a
municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.”).
The Ninth Circuit Court of Appeals has held that in order to establish municipal
liability, “the plaintiff must establish: (1) that he [or she] possessed a constitutional right of
which he [or she] was deprived; (2) that the municipality had a policy; (3) that this policy
amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) that the policy
was the moving force behind the constitutional violation.” Miranda v. City of Cornelius, 429
F.3d 858, 868 (9th Cir. 2005) (citation and quotation marks omitted, modification in original);
see also Levine v. City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) (“To establish [municipal]
liability, a plaintiff must establish that he was deprived of a constitutional right and that the city
had a policy, practice, or custom which amounted to ‘deliberate indifference’ to the constitutional
right and was the ‘moving force’ behind the constitutional violation.”) (citing Van Ort v. Estate
of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996)). With respect to the last element, “[t]here must
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be a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation.” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) (en
banc) (citation and quotation marks omitted). The Court of Appeals has recognized that in
addition to showing that a constitutional violation resulted from an express municipal policy or
custom, “[a] plaintiff may also establish municipal liability by demonstrating that (1) the
constitutional tort was the result of a longstanding practice or custom which constitutes the
standard operating procedure of the local government entity; (2) the tortfeasor was an official
whose acts fairly represent official policy such that the challenged action constituted official
policy; or (3) an official with final policy-making authority delegated that authority to, or ratified
the decision of, a subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (citation and
quotation marks omitted).
1. Plaintiff’s Due Process Claim (Claim 1)
Plaintiff’s first claim for relief, alleged against the County and Fryson, alleges that
“Defendants, and each of them, violated Plaintiff’s fundamental constitutional rights to due
process of law under, inter alia, the Fourth, Fifth and Fourteenth Amendments to the United
States Constitution.” (Compl. ¶ 31.) The County moves to dismiss this claim on several grounds
that relate to the nature or scope of the constitutional rights alleged to be at issue. Those
arguments are addressed in this subsection, and the County’s Monell-specific arguments are
addressed further below.
First, the County argues that it “is unable to determine what due process violation
Plaintiff is alleging under the Fourth Amendment because [plaintiff] has not alleged any facts
indicative of an unlawful search or seizure by [the County].” (County’s Memo. of P. & A. In
Supp. of Mot. to Dismiss & Mot. to Strike (“County’s Memo.”) at 4.) The County’s argument is
well-taken. The Fourth Amendment to the U.S. Constitution provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
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or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
It is entirely unclear from plaintiff’s complaint what specific acts or omissions by the County
allegedly led to a “due process” violation under the Fourth Amendment. In short, there is no
factual basis in plaintiff’s complaint, that would support a claimed violation of plaintiff’s Fourth
Amendment rights. Even assuming the Fourth Amendment contains some due process
component, plaintiff does not allege that he was unlawfully seized or searched by any agent of
the County at any point during the relevant period. Accordingly, the undersigned recommends
that plaintiff’s first claim for relief be dismissed with prejudice to the extent that it is premised on
a Fourth Amendment violation.
Second, the County argues that plaintiff’s due process claim fails as a matter of
law to the extent that it is premised on a violation of plaintiff’s due process rights under the Fifth
Amendment because the Fifth Amendment pertains only to federal actors. (See County’s Memo.
at 4.) Again, the County’s argument is well-taken. The Ninth Circuit Court of Appeals has
plainly held that “[t]he Due Process Clause of the Fifth Amendment . . . [applies] only to actions
of the federal government—not to those of state or local governments.” Lee v. City of L.A., 250
F.3d 668, 687 (9th Cir. 2001); see also Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008)
(“The Fifth Amendment’s due process clause only applies to the federal government.”); Castillo
v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005) (“The Fifth Amendment prohibits the
federal government from depriving persons of due process, while the Fourteenth Amendment
explicitly prohibits deprivations without due process by the several States.”). Plaintiff’s claims
are only against a county and an employee of that county, and plaintiff does not allege that
Fryson or the County are federal actors. Accordingly, the undersigned recommends that
plaintiff’s first claim for relief be dismissed with prejudice to the extent that it is premised on an
alleged violation of plaintiff’s Fifth Amendment rights.
Third, the County contends that plaintiff’s first claim for relief is also subject to
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dismissal to the extent that this claim is premised on plaintiff’s due process rights under the
Fourteenth Amendment because plaintiff “does not identify whether he is asserting procedural or
substantive due process violations against the County.” (County’s Memo. at 4 (emphasis
omitted).) The County further contends, without much explanation, that “[r]egardless, the
Complaint provides no facts in support of either contention.” (Id.) Although the County’s
argument is persuasive to a point, the undersigned recommends that plaintiff’s first claim for
relief be dismissed with leave to amend. The undersigned recommends that plaintiff be
permitted to amend his complaint to more clearly allege: (1) whether plaintiff’s Fourteenth
Amendment due process claim is premised on an alleged violation of plaintiff’s procedural due
process rights, his substantive due process rights, or both; and (2) precise facts that substantiate a
plausible claim or claims and put the County on notice of the claims and conduct at issue.
In recommending that plaintiff be granted leave to amend, the undersigned briefly
addresses the basic showing that must be made insofar as alleged violations of due process under
the Fourteenth Amendment are concerned. First, “[a] procedural due process claim has two
elements: deprivation of a constitutionally protected liberty or property interest and denial of
adequate procedural protection.” Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher
Educ., 616 F.3d 963, 970 (9th Cir. 2010) (citing Brewster v. Bd. of Educ. of the Lynwood
Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998)); accord Thornton v. City of St. Helens,
425 F.3d 1158, 1164 (9th Cir. 2005) (“A procedural due process claim hinges on proof of two
elements: (1) a protectible liberty or property interest . . . ; and (2) a denial of adequate
procedural protections.”) (citation and quotation marks omitted). Second, in regards to a
substantive due process claim, the “Due Process Clause of the Fourteenth Amendment protects
against any government conduct that ‘shocks the conscience.’” Crowe v. City of San Diego, 608
F.3d 406, 431 (9th Cir. 2010) (citation omitted); see also Krainski, 616 F.3d at 969 (“The
guarantee of substantive due process provides heightened protection against government
interference with certain fundamental rights and liberty interests.”) (citation and quotation marks
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omitted); Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2008) (“Substantive due process
forbids the government from depriving a person of life, liberty, or property in such a way that
‘shocks the conscience’ or ‘interferes with the rights implicit in the concept of ordered liberty.’”)
(citations and quotation marks omitted). “To state a substantive due process claim, the plaintiff
must show as a threshold matter that a state actor deprived [him] of a constitutionally protected
life, liberty or property interest.” Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008).
Plaintiff’s complaint does not presently allege facts that support that plaintiff’s constitutionally
protected rights were violated such that plaintiff may proceed on a procedural or substantive due
process claim. Accordingly, plaintiff is granted leave to amend his complaint to the extent that
he can allege such facts.
2. Plaintiff’s Equal Protection Claim (Claim 2)
Plaintiff’s second claim for relief alleges a violation of plaintiff’s rights of equal
protection that are provided by the Fourteenth Amendment. At the heart of this claim, plaintiff
alleges: “Defendants, FRYSON and CPS intentionally harassed and blackmailed Plaintiff as
described herein, therefore depriving Plaintiff of his Fourteenth Amendment right to Equal
Protection as provided by the United States Constitution.” (Compl. ¶ 39.) Plaintiff vaguely
suggests that such an alleged violation was consistent with Yuba CPS’s policies, customs, and
practices, and was also caused by Yuba CPS’s improper training, supervision, and discipline.
(Id. ¶¶ 41-42.) The undersigned recommends that this claim be dismissed with leave to amend
because plaintiff has not alleged facts that state a plausible equal protection claim.
“To state a § 1983 claim for violation of the Equal Protection Clause a plaintiff
must show that the defendants acted with an intent or purpose to discriminate against the plaintiff
based upon membership in a protected class.” Thornton, 425 F.3d at 1166 (citation and
quotation marks omitted); see also Enquist v. Ore. Dep’t of Agric., 553 U.S. 591, 601 (2008)
(“Our equal protection jurisprudence has typically been concerned with governmental
classifications that affect some groups of citizens differently than others.”) (citation and
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quotation marks omitted). The court must first identify the defendant’s classification of groups,
and the “groups must be comprised of similarly situated persons so that the factor motivating the
alleged discrimination can be identified.” Id. at 1166-67. Additionally, a plaintiff may assert
what has been called a “class of one” equal protection claim, which may generally lie where an
individual has been irrationally singled out for discrimination by the government. See Enquist,
553 U.S. at 601 (noting that “an equal protection claim can in some circumstances be sustained
even if the plaintiff has not alleged class-based discrimination, but instead claims that she has
been irrationally singled out as a so-called ‘class of one’”); Vill. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000) (per curiam) (“Our cases have recognized successful equal protection
claims brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally
treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.”); N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008)
(“In order to claim a violation of equal protection in a class of one case, the plaintiff must
establish that the City intentionally, and without rational basis, treated the plaintiff differently
from others similarly situated.”). To succeed on a “class of one” claim, a plaintiff must
demonstrate that the government intentionally treated the plaintiff differently than other similarly
situated people and without a rational basis for doing so. See Gerhart v. Lake County, Mont.,
637 F.3d 1013, 1021 (9th Cir. 2011).
It is unclear from plaintiff’s equal protection claim, as pled, whether plaintiff is
claiming discrimination based on his membership in a protected class or a “class of one” claim.
Indeed, it is unclear what governmental discriminatory treatment is at issue insofar as an equal
protection claim is concerned. Accordingly, plaintiff has failed to state a plausible equal
protection claim, and the undersigned recommends that this claim be dismissed without
prejudice. In amending his complaint, plaintiff should carefully consider whether he can
legitimately state an equal protection claim under the decisions of the Supreme Court and the
Ninth Circuit Court of Appeals.
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3. Municipal Liability Based on a Policy, Custom, or Practice, Etc.
As discussed above, plaintiff’s Section 1983 claims are subject to dismissal.
Assuming that the district judge assigned to this case agrees with the assessment above, plaintiff
will be granted leave to amend his Fourteenth Amendment due process and equal protection
claims to more clearly allege facts regarding the nature of the constitutional violations claimed by
plaintiff. Nevertheless, the County seeks dismissal of plaintiff’s Section 1983 claims on the
additional ground that plaintiff has not adequately alleged a municipal claim under the remaining
requirements of Monell. (See County’s Memo. at 5-6.) In short, the County contends that
plaintiff has not satisfactorily alleged a policy, custom, or practice of the County implemented by
persons having policy-making authority so as to substantiate a municipal Section 1983 claim.
The undersigned declines to reach this aspect of the County’s motion to dismiss at this time
because of the lack of clarity regarding plaintiff’s claims. Without a clearer understanding of the
constitutional violations alleged by plaintiff, and the precise facts supporting such alleged
violations, it would be imprudent to presently address the remaining elements of a Monell claim.
Before moving on, the undersigned briefly notes the rather lenient standard
applicable to the pleading of a Monell claim in this circuit. In the Ninth Circuit, “a claim of
municipal liability under section 1983 is sufficient to withstand a motion to dismiss ‘even if the
claim is based on nothing more than a bare allegation that the individual officers’ conduct
conformed to official policy, custom, or practice.’” Karim-Panahi, 839 F.2d at 624 (quoting
Shah v. County of L.A., 797 F.2d 743, 747 (9th Cir. 1986)); accord Whitaker v. Garcetti, 486
F.3d 572, 581 (9th Cir. 2007); Lee, 250 F.3d at 682-83. Here, plaintiff alleges a number of
Monell-related “buzz” phrases that might survive a motion to dismiss given the lenient,
prevailing standard. He alleges that: (1) Yuba CPS “delegated its final policy-making authority”
to Fryson (Compl. ¶ 12); (2) Yuba CPS “adopted and ratified” each of Fryson’s decisions “as its
own policies, customs, practices or decisions, as if the same had been promulgated directly by
CPS” (id. ¶¶ 12, 33); (3) Fryson acted as an official policy maker and/or was vested with policyCase 2:10-cv-02842-KJM-KJN Document 22 Filed 06/15/11 Page 14 of 27
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In 2007, the California Supreme Court adopted the practice of using the title 9
“Government Claims Act” instead of the more traditional “California Tort Claims Act” to
adequately capture the breadth of the statutory framework and to reduce confusion over issues
such as whether breach of contract claims fall within the statutory provisions. See City of
Stockton v. Superior Court, 42 Cal. 4th 730, 741-42 & ns. 6-7, 171 P.3d 20, 27-28 & ns. 6-7
(2007).
A state’s claim presentment requirements do not apply to federal civil rights actions. 10
Ford v. Long Beach Unified Sch. Dist., 461 F.3d 1087, 1089-90 (9th Cir. 2006).
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making authority (id. ¶¶ 13, 31-32); (4) Fryson’s conduct “was consistent with the
unconstitutional policies, customs and practices set forth by CPS” (id. ¶¶ 33, 41); and (5) Yuba
CPS failed to adequately train, supervise, or discipline its agents and officers and such failures
caused the constitutional violations alleged (id. ¶¶ 34, 42). That said, and as noted at the hearing,
if plaintiff is granted leave to amend his complaint, plaintiff should consider more carefully or
thoroughly explaining in his amended complaint the precise factual bases for his municipal
liability claims.
B. Plaintiff Adequately Alleged Compliance With The Government Claims Act
The County contends that plaintiff’s state law claims for negligent supervision,
hiring, and retention, negligent infliction of emotional distress, fraud, and violations of Civil
Code § 52.1 must be dismissed with prejudice because plaintiff failed to file a government claim
prior to initiation of this action. (County’s Memo. at 8.) Plaintiff counters that he in fact served
a government claim on the County. (Pl.’s Opp’n at 5.)
California’s Government Claims Act, which is also known as the California Tort
Claims Act, provides that a party seeking to recover money damages from a public entity or its 9
employees must submit a claim to the entity before filing suit in court, generally no later than six
months after the cause of action accrues. See Cal. Govt. Code §§ 905, 911.2, 945.4, 950-950.2. 10
Timely presentation of claims is not merely a procedural requirement but is an element of the
plaintiff’s cause of action. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209, 164 P.3d 630,
634 (2007) (“Timely claim presentation is not merely a procedural requirement, but is, as this
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The Ninth Circuit Court of Appeals has held that a district court may properly dismiss
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supplemental state law claims for failure to allege compliance or an excuse from compliance
with the claims presentation requirement, but errs by failing to instruct a plaintiff regarding the
necessity of alleging compliance with the exhaustion requirements. See Karim-Panahi, 839 F.2d
at 627.
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court long ago concluded, a condition precedent to plaintiff’s maintaining an action against
defendant, and thus an element of the plaintiff’s cause of action” (citation and quotation marks
omitted).). A plaintiff may sue the public entity and its employees only after the entity has acted
upon or is deemed to have rejected the claim. Id.; see also Mangold v. Cal. Pub. Utilities
Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995) (“The California Tort Claims Act requires, as a
condition precedent to suit against a public entity, the timely presentation of a written claim and
the rejection of the claim in whole or in part.”). A plaintiff’s “failure to allege facts
demonstrating or excusing compliance with the claims presentation requirement subjects a claim
against a public entity” to dismissal for failure to state a claim. See State v. Superior Court 11
(Bodde), 32 Cal. 4th 1234, 1239, 90 P.3d 116, 119 (2004).
Here, plaintiff’s complaint alleges that he “submitted a timely claim under the
government tort claims act on or about February 4, 2009, to defendant Public Entity, and has the
appropriate standing to bring this action.” (Compl. ¶ 1.) The County acknowledges that plaintiff
has alleged compliance with the Government Claims Act, but contends that plaintiff did not in
fact file a government claim with the County. It relies on a declaration of Donna Stottlemeyer,
who is employed as the clerk of the County’s Board of Supervisors, which represents the
following:
On or around February 4, 2009, I did not receive a claim filed by
Christopher Lindsay with either Yuba County or Yuba Child Protective
Services. In fact, I have never received a tort claim filed by Christopher
Lindsay over his interactions with former Yuba County employee,
Yolanda Fryson.
(Stottlemeyer Decl. ¶ 2, Dkt. No. 13, Doc. No. 13-2.) In response, plaintiff filed a declaration of
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Arshak Bartoumian, an attorney that plaintiff retained to file a government claim on his behalf.12
(Bartoumian Decl, Ex. B to Pl.’s Opp’n to Mot. to Dismiss, Dkt. No. 18.) The Bartoumian
declaration represents under penalty of perjury that Bartoumian requested a claim form from the
County, received the form, directed plaintiff to sign the form, and mail-served the completed
government claim to the County’s Board of Supervisors on or about February 4, 2009. (See id.
¶¶ 2-4.) It also appends plaintiff’s three-page government claim, dated January 23, 2009, which
was completed on a form entitled “County of Yuba Claim for Damages.” (Id., Ex. A.) The
County filed an evidentiary objection to Exhibit A to the Bartoumian declaration—the actual
government claim—on the grounds that plaintiff has not authenticated that document. (See
County’s Obj. to Evidence, Dkt. No. 20, Doc. No. 20-1.)
The undersigned concludes that, taking plaintiff’s allegations as true, plaintiff
satisfactorily alleged substantial compliance with the Government Claims Act. (See Compl. ¶ 1.)
On a Rule 12(b)(6) motion, the court need not, and cannot, resolve factual disputes regarding
actual compliance with the Government Claims Act. The undersigned further declines to convert
the County’s motion to a motion for partial summary judgment. Moreover, the court has no basis
to conclude as a matter of law that plaintiff did not file a tort claim at all simply because the
County’s clerk cannot recall receiving such a claim. Accordingly, the County’s argument
regarding exhaustion is not well-taken. The undersigned overrules the County’s objection as
moot because the undersigned need not, and has not, relied on the controverted exhibit in
concluding that plaintiff adequately alleged compliance with the presentation requirements of the
Government Claims Act.
C. Plaintiff May Only Allege Common Law Claims Against A Public Entity
Pursuant To An Authorizing Statute
The County further argues that plaintiff’s state law claims for negligent
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The parties do not dispute that the County is a public entity. See Cal. Gov’t Code 13
§ 811.2 (“‘Public entity’ includes the state . . . a county, city, district, public authority, public
agency, and any other political subdivision or public corporation in the State.”); see also Compl.
¶ 8 (alleging that Yuba CPS is a public entity).
The Senate Legislative Committee Comments to California Government Code § 815 14
provide, in pertinent part:
This section abolishes all common law or judicially declared forms of
liability for public entities, except for such liability as may be required by
the state or federal constitution, e.g., inverse condemnation. In the
absence of a constitutional requirement, public entities may be held liable
only if a statute (not including a charter provision, ordinance or regulation)
is found declaring them to be liable. . . . [T]he practical effect of this
section is to eliminate any common law governmental liability for
damages arising out of torts. The use of the word “tort” has been avoided,
however, to prevent the imposition of liability by the courts by
reclassifying the act causing the injury.
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supervision, hiring, and retention, negligent infliction of emotional distress, and fraud “are
deficient because they are common law claims that cannot be made against a public entity.”
(County’s Memo. at 7.) The County argues that these claims—enumerated as plaintiff’s third,
fourth, and sixth claims for relief—are barred by California Government Code § 815. (Id.)
Plaintiff does not substantively oppose the County’s argument in this regard.
The California Government Claims Act immunizes public entities from tort
liability in all cases except those where liability is explicitly created by a particular statute. Cal. 13
Gov’t Code § 815(a). See also Hoff v. Vacaville Unified Sch. Dist., 19 Cal. 4th 925, 932, 968 14
P.2d 522, 526 (1998) (stating that “in California, all government tort liability must be based on
statute,” and citing Cal. Gov’t Code § 815(a)) (citation and quotation marks omitted). However,
pursuant to California Government Code § 815.2(a), a public entity may be sued in tort based on
a respondeat superior theory of vicarious liability. See, e.g., Miklosky v. Regents of Univ. of
Cal., 44 Cal. 4th 876, 900, 188 P.3d 629, 644 (2008) (noting that “Section 815.2, subdivision (a),
codifies the doctrine of respondeat superior as it applies to public entities”); Hoff, 19 Cal. 4th at
932, 968 P.2d at 526 (stating that through Section 815.2(a), “the California Tort Claims Act
expressly makes the doctrine of respondeat superior applicable to public employers”) (citing
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Although no extended discussion is warranted here, the undesigned notes that it is not 15
entirely certain what types of illegal conduct by a public entity’s employee falls within the scope
of a public employee’s employment. See M.P. v. City of Sacramento, 177 Cal. App. 4th 121,
128-33, 98 Cal. Rptr. 3d 812, 818-22 (Ct. App. 2009).
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Mary M. v. City of L.A., 54 Cal. 3d 202, 209, 814 P.2d 1341, 1344 (1991)). Specifically, a
“public entity is liable for injury proximately caused by an act or omission of an employee of the
public entity within the scope of his employment if the act or omission would, apart from this
section, have given rise to a cause of action against that employee or his personal representative.”
Cal. Gov’t Code § 815.2(a).15
Here, the County only argues that plaintiff’s negligent supervision, hiring, and
retention, negligent infliction of emotional distress, and fraud claims are barred by California
Government Code § 815. However, plaintiff alleges in his complaint that Yuba CPS “is
responsible for the acts of its employees committed during the courts [sic] and scope of their
employment pursuant to Government Code Section 815.2.” (Compl. ¶ 5.) Furthermore, plaintiff
alleges that “at all times relevant thereto Defendants responsible [sic] for the acts committed
individually and personally during the court [sic] and scope of their employment pursuant to
Government Code Section 815.2.” (Id. ¶ 6.) The County did not acknowledge these allegations
in its moving papers or reply brief. Although these allegations are somewhat generally stated, the
undersigned concludes that plaintiff has adequately alleged a statutory basis for his tort claims of
negligent infliction of emotional distress and fraud against the County to the extent that these
claims are based on a respondeat superior theory of liability. To the extent that these claims are
premised on the direct liability of the County, such claims should be dismissed without prejudice,
and plaintiff should be granted leave to amend his complaint to allege a statutory basis for the
County’s alleged direct liability, if any. If plaintiff cannot in good faith allege a statutory basis
for the County’s direct liability for negligent infliction of emotional distress and fraud, he should
not re-plead such claims against the County on a direct liability theory.
Plaintiff’s citation to Section 815.2 does not save his negligent supervision,
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hiring, and retention claim from dismissal because that claim is not premised on a respondeat
superior theory of liability; it is a claim alleged directly against the County or one of its agencies.
Such a claim is based on the common law and, accordingly, the undersigned recommends that
plaintiff’s third claim for relief be dismissed. However, such dismissal should be without
prejudice, and plaintiff should be granted leave to attempt to present a statutory basis for his
negligent supervision, hiring, and retention claim, if he is able.
D. California Government Code § 818.8 Does Not Bar Plaintiff’s Claim of Fraud
Against the County
The County next contends that plaintiff may not attempt to hold it liable for
Fryson’s alleged fraudulent misrepresentations that are at the heart of this action because such
vicarious liability is barred by Government Code § 818.8. (County’s Memo. at 8-9.) Plaintiff
does not substantively oppose the County’s argument. Nevertheless, the undersigned concludes
that, at least as pled, plaintiff’s fraud claim does not fall within the immunity conferred by
Section 818.8.
California Government Code § 818.8 provides: “A public entity is not liable for
an injury caused by misrepresentation by an employee of the public entity, whether or not such
misrepresentation be negligent or intentional.” See also L.A. Unified Sch. Dist. v. Great Am.
Ins. Co., 49 Cal. 4th 739, 748, 234 P.3d 490, 495 (2010) (noting that Government Code § 818.8
bars tort actions for fraudulent misrepresentation against a public entity). California Courts of
Appeal have held that to the extent this immunity applies, it is absolute in nature. See Masters v.
San Bernardino County Employees Retirement Ass’n, 32 Cal. App. 4th 30, 43, 37 Cal. Rptr. 2d
860, 869 (Ct. App. 1995) (recognizing that “the immunity of a public entity for misrepresentation
by its employee, whether intentional or negligent, is absolute”); accord Harshbarger v. City of
Colton, 197 Cal. App. 3d 1335, 1340, 243 Cal. Rptr. 463, 465-66 (Ct. App. 1988). However, the
California Supreme Court confined the scope of this immunity in Johnson v. State of California,
69 Cal. 2d 782, 800, 447 P.2d 352, 365 (1968), where it distinguished between different forms of
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“misrepresentation.” There, the court summarized: “In short, ‘misrepresentation,’ as a tort
distinct from the general milieu of negligent and intentional wrongs, applies to interferences with
financial or commercial interest. The Legislature designed section 818.8 to exempt the
governmental entity from this type of liability.” Id.; accord Garcia v. Superior Court, 50 Cal. 3d
728, 738 n.8, 789 P.2d 960, 965 n.8 (1990); see generally Jopson v. Feather River Air Quality
Mgmt. Dist.,108 Cal. App. 4th 492, 133 Cal. Rptr. 2d 506 (Ct. App. 2003) (reviewing numerous
cases addressing public entity immunity under California Government Code § 818.8).
Here, plaintiff’s fraud claim alleges that defendants blackmailed plaintiff with the
“specific purpose of depriving Plaintiff of his funds,” and that plaintiff was injured, in part, “by
loss of use of his funds.” (Compl. ¶ 80.) Plaintiff also alleges that he was forced to retain an
attorney as a result of the misrepresentations concerned. (Id. ¶ 79.) Construing plaintiff’s
allegations in the broadest and most literal sense, plaintiff’s fraudulent misrepresentation claim
technically concerns an alleged interference with his financial interest. However, plaintiff’s
claims do not resemble the types of interferences with financial or commercial interests that
California courts have held fall within the scope of the immunity provided in Section 818.8. See,
e.g., Tokeshi v. California, 217 Cal. App. 3d 999, 1005-08, 266 Cal. Rptr. 255, 259-61 (Ct. App.
1990) (holding that the immunity conferred by Section 818.8 applied where the plaintiffs, who
were raspberry growers, alleged that a state inspector gratuitously instructed them to spray their
crop with a pesticide that exceeded the permissible tolerance and the growers were subsequently
prohibited from harvesting and selling their crop); Harshbarger, 197 Cal. App. 3d at 1342, 243
Cal. Rptr. at 467 (holding that the city was immune for the acts of its employees where the city’s
building inspectors intentionally signed a document indicating that a residence met applicable
building codes when the inspectors knew it did not, which caused plaintiffs to spend an
additional $295,000 to bring the residence to code); Grenell v. City of Hermosa Beach, 103 Cal.
App.3d 864, 867-68, 873-75, 163 Cal. Rptr. 315, 317, 321 (Ct. App. 1980) (holding that the
immunity in Section 818.8 applied where the city’s employees issued an erroneous report
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indicating that a property was zoned for rental use when it was not). Plaintiff’s claim more
resembles the general sort of negligent and intentional wrongs that the court in Johnson excluded
from the scope of Section 818.8. See Johnson, 69 Cal. 2d at 799-800, 447 P.2d at 364-65
(holding that a parole officer’s misrepresentations or withholding of information regarding the
homicidal tendencies of a parolee foster youth made to a prospective foster mother did not fall
within California Government Code § 818.8); Michael J. v. L.A. County Dep’t of Adoptions, 201
Cal. App. 3d 859, 872, 247 Cal. Rptr. 504, 510-11 (Ct. App. 1988) (holding that California
Government Code § 818.8 did not immunize the county from liability for negligent or intentional
misrepresentations or concealment of information regarding the health of prospective adoptee);
Bastian v. County of San Luis Obispo, 199 Cal. App. 3d 520, 533-34, 245 Cal. Rptr. 78, 84-85
(Ct. App. 1988) (holding that county was not immune from liability where a deputy sheriff
placed an empty liquor bottle next to a deceased driver at an accident scene, a photographer took
and published a photograph of the scene without knowledge of the doctored scene, the
photographer subsequently lost his job and was sued by the deceased’s family). None of these
cases is perfectly analogous to the facts of this case. However, at this early stage of the
proceedings, the undersigned cannot conclude as a matter of law and based on the pleadings that
the County is entitled to immunity under California Government Code § 818.8. Accordingly, the
County’s motion to dismiss should be denied in this respect.
E. Plaintiff’s Claim Under the Bane Act Is Subject to Dismissal With Prejudice
Next, the County moves to dismiss plaintiff’s claim under the Tom Bane Civil
Rights Act, California Civil Code § 52.1, on the grounds that plaintiff’s claim is premised on
Fryson’s speech, and plaintiff failed to allege a requisite threat of violence. (See County Memo.
at 9.) Again, plaintiff does not substantively oppose the County’s contention.
“[California] Civil Code section 52.1 authorizes an action at law, a suit in equity,
or both, against anyone who interferes, or tries to do so, by threats, intimidation, or coercion,
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California Civil Code §§ 52.1(a)-(b) provide, in part:
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(a) If a person or persons, whether or not acting under color of law,
interferes by threats, intimidation, or coercion, or attempts to interfere by
threats, intimidation, or coercion, with the exercise or enjoyment by any
individual or individuals of rights secured by the Constitution or laws of
the United States, or of the rights secured by the Constitution or laws of
this state, the Attorney General, or any district attorney or city attorney
may bring a civil action for injunctive and other appropriate equitable
relief in the name of the people of the State of California, in order to
protect the peaceable exercise or enjoyment of the right or rights
secured. . . .
(b) Any individual whose exercise or enjoyment of rights secured by the
Constitution or laws of the United States, or of rights secured by the
Constitution or laws of this state, has been interfered with, or attempted to
be interfered with, as described in subdivision (a), may institute and
prosecute in his or her own name and on his or her own behalf a civil
action for damages, including, but not limited to, damages under Section
52, injunctive relief, and other appropriate equitable relief to protect the
peaceable exercise or enjoyment of the right or rights secured.
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with an individual’s exercise or enjoyment of rights secured by federal or state law.” Jones v. 16
Kmart Corp., 17 Cal. 4th 329, 331, 949 P.2d 941, 942 (1998). “The essence of a Bane Act claim
is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’),
tried to or did prevent the plaintiff from doing something he or she had the right to do under the
law or to force the plaintiff to do something that he or she was not required to do under the law.”
Fenters v. Yosemite Chevron, 761 F. Supp. 2d 957, No. CV-F-05-1630 OWW/DLB, 2010 WL
5475945, at *34 (E.D. Cal. Dec. 30, 2010) (quoting Austin B. v. Escondido Union School Dist.,
149 Cal. App. 4th 860, 883, 57 Cal. Rptr. 3d 454 (Ct. App. 2007)); accord Bailey v. County of
San Joaquin, 671 F. Supp. 2d 1167, 1179 (E.D. Cal. 2009). The statute expressly addresses when
“speech alone” may provide a basis for a claim under the Bane Act:
(j) Speech alone is not sufficient to support an action brought pursuant to
subdivision (a) or (b), except upon a showing that the speech itself
threatens violence against a specific person or group of persons; and the
person or group of persons against whom the threat is directed reasonably
fears that, because of the speech, violence will be committed against them
or their property and that the person threatening violence had the apparent
ability to carry out the threat.
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Cal. Civ. Code 52.1(j) (emphasis added); see also Martin v. County of San Diego, 650 F. Supp.
2d 1094, 1108 (S.D. Cal. 2009) (“Although the language of § 52.1(a) does not mention
‘violence,’ § 52.1(j) explicitly provides that violence is a required element where the ‘threat,
intimidation or coercion’ is based purely upon a defendant’s statements.”).
Here, plaintiff’s Bane Act claim is based on Fryson’s attempt to blackmail
plaintiff through speech alone. Plaintiff does not allege that Fryson’s speech threatened violence
against plaintiff, another person or persons, or plaintiff’s property. At the hearing, plaintiff
confirmed that he is not alleging that Fryson committed any violent act or threatened him with
violence. Accordingly, plaintiff’s Bane Act claim is barred under California Civil Code
§ 52.1(j), and the undersigned recommends that plaintiff’s Bane Act claim, enumerated as
plaintiff’s seventh claim for relief, be dismissed. Based on the complaint and plaintiff’s
representations at the hearing, the dismissal of plaintiff’s Bane Act claim should be with
prejudice.
F. The County’s Motion to Strike Plaintiff’s Prayer for Punitive Damages
Finally, the County moves, pursuant to Federal Rule of Civil Procedure 12(f), to
strike plaintiff’s request for relief in the form of punitive damages on the grounds that:
(1) punitive damages are not available in connection with Section 1983 claims asserted against
public entities, and (2) California Government Code § 818 bars awards of punitive damages
against public entities. (County’s Memo. at 9-10; see also Third Am. Compl. ¶¶ 29, 36, 75, 80-
81, 90, and p. 14.) The undersigned recommends that the County’s motion to strike be denied.
The County correctly argues that a plaintiff may not recover punitive damages
from a municipality on a claim brought pursuant to 42 U.S.C. § 1983. The Supreme Court has
squarely held that “a municipality is immune from punitive damages under 42 U.S.C. § 1983.”
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); accord Jefferson v. City of
Tarrant, Ala., 522 U.S. 75, 79 (1997); see also Bell v. Clackamas County, 341 F.3d 858, 868 n.4
(9th Cir. 2003). The County is also correct that, as a general matter, the California Government
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Code bars punitive damages awards against public entities. See Cal. Gov’t Code § 818; see also
Westlands Water Dist. v. Amoco Chem. Co., 953 F.2d 1109, 1113 (9th Cir. 1991) (“California
Government Code § 818 bars any award of punitive damages against a public entity.”).
However, the Ninth Circuit Court of Appeals recently held that Federal Rule of Civil
Procedure 12(f) does “not authorize district courts to strike claims for damages on the ground
that such claims are precluded as a matter of law.” Whittlestone, Inc. v. Handi-Craft Co., 618
F.3d 970, 974-75 (9th Cir. 2010) (reversing the district court’s order striking, pursuant to
Rule 12(f), plaintiff’s claim for lost profits and consequential damages where the defendant had
argued that such categories of damages were precluded as a matter of law). The County is
attempting to do exactly what the Court of Appeals held was impermissible in that the County
seeks to strike plaintiff’s prayer for punitive damages on the grounds that a plaintiff may not, as a
matter of law, recover punitive damages against a public entity. This court lacks authority to
strike plaintiff’s prayer for punitive damages pursuant to Rule 12(f) and, accordingly, the
undersigned recommends that the County’s motion to strike be denied.
IV. CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that:
1. Defendant County of Yuba’s objection to evidence attached to plaintiff’s
written opposition is denied as moot because the undersigned has not relied on the evidence to
which the objection is directed.
2. Defendant County of Yuba’s motion for a more definite statement is
denied in light of the recommended resolution of plaintiff’s motion to dismiss.
It is FURTHER RECOMMENDED that:
1. Defendant County of Yuba’s motion to dismiss (Dkt. No. 13) be granted in
part and denied in part. Specifically, it is recommended that:
a. Plaintiff’s first claim for relief, alleging a violation of plaintiff’s
due process rights pursuant to 42 U.S.C. § 1983, be dismissed with prejudice to the extent it
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alleges a violation of plaintiff’s Fourth Amendment and Fifth Amendment due process rights, but
be dismissed without prejudice to the extent it alleges a violation of plaintiff’s Fourteenth
Amendment due process rights.
b. Plaintiff’s second claim for relief, alleging a violation of plaintiff’s
equal protection rights pursuant to 42 U.S.C. § 1983, be dismissed without prejudice.
c. Plaintiff’s third claim for relief, alleging a claim of negligent
supervision, hiring, and retention, be dismissed without prejudice.
d. Plaintiff’s fourth claim for relief, alleging a claim of fraud, be
dismissed without prejudice to the extent that it is a claim for direct liability against the County.
However, this fraud claim may proceed as pled to the extent it asserts a claim premised on a
respondeat superior theory of vicarious liability.
e. Plaintiff’s sixth claim for relief, alleging a claim of negligent
infliction of emotional distress, be dismissed without prejudice to the extent that it is a claim for
direct liability against the County. However, this claim may proceed as pled to the extent it
asserts a claim premised on a respondeat superior theory of vicarious liability.
f. Plaintiff’s seventh claim for relief, alleging a violation of California
Civil Code § 52.1, be dismissed with prejudice.
2. Defendant County of Yuba’s motion to strike be denied.
3. Plaintiff be granted 30 days from the date of the district judge’s order
addressing these proposed findings and recommendations to file an amended complaint that is
complete in itself. If the district judge agrees that leave to amend should be granted, the
amended complaint must bear the docket number assigned to this case and must be entitled “First
Amended Complaint.” Plaintiff must file an original and one copy of the first amended
complaint. Failure to timely file a first amended complaint in accordance with this order may
result in a recommendation that this action be dismissed. Additionally, plaintiff is informed that
the court cannot refer to prior pleadings in order to make an amended complaint complete.
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Eastern District Local Rule 220 requires that an amended complaint be complete in itself. This is
because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.
Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the
latter being treated thereafter as non-existent.”). Accordingly, once plaintiff files an amended
complaint, the original no longer serves any function in the case. Therefore, “a plaintiff waives
all causes of action alleged in the original complaint which are not alleged in the amended
complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981), and defendants
not named in an amended complaint are no longer defendants. Ferdik v. Bonzelet, 963 F.2d
1258, 1262 (9th Cir. 1992).
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
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. Id.; see also E. Dist. Local Rule 304(b).
Such a document should be captioned “Objections to Magistrate Judge’s Findings and
Recommendations.” Any response to the objections shall be filed with the court and served on
all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d).
Failure to file objections within the specified time may waive the right to appeal the District
Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d
1153, 1156-57 (9th Cir. 1991).
IT IS SO ORDERED AND RECOMMENDED.
DATED: June 14, 2011
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
Case 2:10-cv-02842-KJM-KJN Document 22 Filed 06/15/11 Page 27 of 27 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-23-03582/USCOURTS-ca6-23-03582-0/pdf.json | [
[
"Brentlinger Enterprises",
"Appellee Cross-Appellant"
],
[
"Celestia Chapman",
"Appellant Cross-Appellee"
]
] | RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0266p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CELESTIA CHAPMAN,
Plaintiff-Appellant/Cross-Appellee,
v.
BRENTLINGER ENTERPRISES,
Defendant-Appellee/Cross-Appellant.
┐
│
│
│
│
│
│
│
┘
Nos. 23-3582/3613
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
No. 2:20-cv-05009—Michael H. Watson, District Judge.
Argued: May 9, 2024
Decided and Filed: December 13, 2024
Before: MOORE, KETHLEDGE, and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Jason E. Starling, WILLIS SPANGLER STARLING, Hilliard, Ohio, for
Appellant/Cross-Appellee. Marion H. Little, Jr., ZEIGER, TIGGES & LITTLE LLP, Columbus,
Ohio, for Appellee/Cross-Appellant. ON BRIEF: Jason E. Starling, WILLIS SPANGLER
STARLING, Hilliard, Ohio, for Appellant/Cross-Appellee. Marion H. Little, Jr., ZEIGER,
TIGGES & LITTLE LLP, Columbus, Ohio, for Appellee/Cross-Appellant.
_________________
OPINION
_________________
BLOOMEKATZ, Circuit Judge. Celestia Chapman requested time off under the Family
and Medical Leave Act (FMLA) to take care of her sister, who was dying of cancer. Her
employer, Brentlinger Enterprises, d/b/a the Midwestern Auto Group (MAG), told her the statute
did not provide leave to care for an adult sibling. Eventually, when she did not show up for work
>
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one day, MAG fired her. Then it lied and told workers’ compensation authorities she had quit.
MAG also threatened to bring Rule 11 sanctions if she brought an FMLA lawsuit, and failed to
provide her statutorily mandated notice of health insurance availability. After that, Chapman
sued, claiming that her termination and the subsequent allegedly retaliatory actions violated the
FMLA and other statutes. Both parties moved for summary judgment, both parties prevailed on
some claims but lost on others, and both parties now appeal. We affirm in part and reverse in
part, remanding to the district court to consider several statutory claims it erroneously dismissed.
BACKGROUND
I. Factual Background
In May 2018, Celestia Chapman started working as a finance manager at MAG, a luxury
car dealership in Columbus, Ohio. Her adult sister, Sharon, lived in Kentucky and had been
battling non-Hodgkin lymphoma. They eventually learned it was terminal. Chapman agreed
when Sharon asked her to “be her ‘primary caregiver’ in her final days.” Chapman Decl., R. 60-
1, PageID 2965. By the spring of 2019, Sharon became severely ill and unable to take care of
herself. MAG says that Chapman started having attendance issues around this time.
Between June 20 and 25, Chapman used her allotted paid time off to travel to Kentucky
to take care of Sharon. Chapman alleges that she supported her sister financially by paying some
portion of her bills and buying groceries and other essential household items. She also cooked
her sister’s meals and hand fed her, helped her use the bathroom, cleaned her up when she was
incontinent, brushed her hair and teeth, and took care of her apartment by cleaning, taking out
the trash, and doing laundry. She managed some of her sister’s medical needs by administering
over-the-counter medications, using massage tools and hot-and-cold packs, and shifting her
around in bed to prevent bed sores. She also provided emotional support. Chapman’s other
sister Alecia provided similar care to Sharon during the same period. On some days, Chapman
or Alecia took care of Sharon alone, and on others, the sisters divided the responsibilities. Alecia
was Sharon’s medical power of attorney.
When Chapman ran out of paid days off, MAG allowed her to take unpaid leave at its
discretion, but it was unclear for how long. On her last paid day off, Chapman requested FMLA
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leave in a phone conversation with HR representative Karen Betsacon. Betsacon explained that
the FMLA does not cover leave to take care of siblings and declined Chapman’s request.
Chapman renewed her request on July 11, this time with an FMLA information sheet provided
by Alecia’s employer that said siblings are covered under the statute. Chapman sent the
information to a group text chat with Betsacon and other supervisors. Betsacon contacted
MAG’s lawyers and forwarded their response—that the FMLA did not cover Chapman’s
request—to Chapman. According to Chapman, Betsacon accused her of “calling [Betsacon] out”
in the group chat with the other supervisors and told Chapman she needed to choose between her
job and her sister. Chapman Decl., R. 60-1, PageID 2970.
Although MAG was adamant that FMLA leave was off the table, on July 12 it approved a
modified schedule for Chapman with reduced hours. Chapman and MAG agreed that she would
return from leave and begin the new schedule on July 17 at 9:00 AM. But Chapman did not
arrive to work at that time, so Betsacon called her. Chapman did not answer. Chapman sent a
text time-stamped at 9:21 AM explaining that Alecia’s flight had been delayed, so she was
waiting for Alecia to arrive and take over care responsibilities for Sharon. Here, Chapman and
MAG’s stories diverge. Chapman says she had asked for and received permission a full week in
advance to arrive late on her first day because she knew she would have to switch off with
Alecia, who was scheduled to arrive the night before Chapman was due back at work. Chapman
says Alecia arrived even later than expected, so she texted Betsacon that night to let her know.
Because of poor cell reception in Sharon’s apartment, she avers the text did not go through until
9:21 AM the next morning. MAG, on the other hand, denies that Chapman gave advance notice
of her anticipated tardiness. It’s undisputed, however, that after Betsacon received Chapman’s
text on July 17 saying she was going to be late, Betsacon fired Chapman by text at 10:27 AM.
Sharon died two days later.
On August 5, MAG retroactively disenrolled Chapman from her employee health
insurance plan. The premium would have come out of her monthly paycheck that same day, but
because she was no longer working at MAG, there was no paycheck. Because MAG disenrolled
her, it did not send her a notice of her right to continued coverage as the Consolidated Omnibus
Budget Reconciliation Act (COBRA) ordinarily requires.
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Following her termination, Chapman began preparing to sue MAG over her termination
and applied for unemployment benefits. Chapman’s counsel told MAG about the FMLA lawsuit
she planned to file. MAG replied with a letter that said, among other things, that her FMLA
claim was frivolous, so MAG might pursue Rule 11 sanctions if Chapman decided to sue. MAG
also opposed Chapman’s application for unemployment benefits by submitting information to
the Ohio Department of Job and Family Services (ODJFS) that described Chapman’s departure
as “job abandonment,” explaining that she “quit” and was a “no show.” ODJFS Emp. Info.
Form, R. 49-14, PageID 755.
II. Procedural History
Chapman sued MAG under various federal and state statutes over her termination and
MAG’s subsequent alleged retaliation. First, she claims that MAG interfered with her FMLA
rights and retaliated against her by firing her, threatening Rule 11 sanctions, and dishonestly
opposing her application for unemployment benefits. Second, she claims that MAG violated the
Americans with Disabilities Act (ADA) and an analogous Ohio law’s prohibition on
associational disability discrimination by firing her because of her connection to her disabled,
dying sister. Third, she claimed that MAG violated COBRA by failing to send her notice of her
continued coverage options. MAG denied the allegations and raised Chapman’s failure to
mitigate damages as an affirmative defense.
Chapman moved for partial summary judgment on her FMLA interference claim, her
COBRA claim, and MAG’s affirmative defense. MAG moved for summary judgment on all
claims, including its affirmative defense. The district court granted MAG’s motion for summary
judgment on every claim except the COBRA count. It held that MAG violated COBRA and
imposed a statutory penalty of $85 per day. The district court held that MAG’s affirmative
defense was moot because every one of Chapman’s claims that could have generated a
compensatory damages award was dismissed.
Both Chapman and MAG timely appealed.
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ANALYSIS
This appeal raises multiple issues. Chapman challenges the district court’s decision to
reject her FMLA interference and retaliation claims, and her ADA and Ohio-law associational
disability discrimination claims. We review de novo the district court’s grants of summary
judgment to MAG on these claims. See Ferro Corp. v. Cookson Grp., PLC, 585 F.3d 946, 949–
50 (6th Cir. 2009). A party is entitled to summary judgment if it has shown there is no genuine
dispute of any material fact and that it is entitled to judgment as a matter of law. Id. at 949
(citing Fed. R. Civ. P. 56(c)). MAG contends that the district court’s statutory penalty for
violating COBRA was excessive. We review the district court’s decision as to the amount of the
penalty for abuse of discretion. See Zirnhelt v. Mich. Consol. Gas Co., 526 F.3d 282, 290 (6th
Cir. 2008).
Applying these standards, we reverse the district court’s grant of summary judgment to
MAG on Chapman’s statutory claims—except for one of three retaliation claims—and remand
for further consideration of those claims. We affirm the district court’s award of statutory
penalties for MAG’s COBRA violation.
I. Chapman’s FMLA Interference Claim
We first consider Chapman’s claim that MAG interfered with her entitlement to take
FMLA leave by denying her rightful request. To establish a prima facie case of FMLA
interference, Chapman must show that: (1) she was an eligible employee; (2) MAG was a
covered employer; (3) she was entitled to take leave under the FMLA; (4) she notified MAG she
intended to take leave; and (5) MAG denied her rights or benefits to which she was entitled
under the statute. See Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 427
(6th Cir. 2014). The parties’ dispute centers on the third element—whether Chapman was
entitled to take FMLA leave to care for her dying sister.
The FMLA allows employees to take unpaid leave to care for certain relatives. 29 U.S.C.
§ 2612(a)(1)(C). Siblings are not on the list. See id. However, the FMLA permits employees to
take leave to care for an “in loco parentis” parent or child. Id. §§ 2611(7), (12). Chapman
argues that when she asked for FMLA leave, she was responsible for Sharon in the way a parent
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would be, so she was in loco parentis to her sister. The district court disagreed. It reasoned that
Chapman could not stand in loco parentis to Sharon because neither the parent-child relationship
nor the incapacitating disability began before the “child” (here, Sharon) turned eighteen. See
Chapman v. Brentlinger Ents., No. 20-cv-5009, 2023 WL 11938836, at *3–4 (S.D. Ohio July 7,
2023). The district court did not take a position on which of these two features of Chapman’s
situation doomed her FMLA claim but concluded that the combination was surely fatal.
Additionally, “whichever the law requires,” the district court reasoned, “at the very least,” the
parent-child relationship must have developed before the onset of illness. Id. at *4. That was not
the case here, so the court granted MAG summary judgment.
We first address whether the FMLA recognizes the kind of in loco parentis relationship
alleged here, which formed when the dependent was over eighteen, her condition developed in
adulthood, and the purported parental relationship originated after the onset of the disabling
condition. The statutory text does not tell us whether the FMLA recognizes in loco parentis
relationships under these circumstances. Although MAG points us to interpretive tools like
FMLA case law and Department of Labor materials to argue it doesn’t, these sources do not
provide clarity either. Without a resolution from the text or these interpretive materials, we look
to the common law meaning of “in loco parentis” because we presume Congress intended to
incorporate that meaning when it wrote the FMLA. The common law confirms that “in loco
parentis” relationships can form after the dependent is eighteen or after the onset of disability.
That does not end the analysis, however. For Chapman’s claim to move forward, she
must show that her relationship with Sharon was in fact an in loco parentis relationship. In other
words, she must demonstrate she intended to, and did, assume a parental role over Sharon. See
Niewiadomski v. United States, 159 F.2d 683, 686 (6th Cir. 1947). We leave that question for
the district court to decide in the first instance, but from our analysis of the common law, we
provide guidance on the hallmarks of such a relationship.
A. Plain Text
To understand the scope of the FMLA’s protections, we start with the plain text. See
Binno v. Am. Bar Ass’n, 826 F.3d 338, 346 (6th Cir. 2016). The FMLA guarantees qualifying
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employees twelve weeks of unpaid leave each year to “care for . . . a son, daughter, or parent[] of
the employee, if such [person] has a serious health condition.” See 29 U.S.C. § 2612(a)(1)(C).
By singling out parents and their offspring for leave to care for one another, Congress recognized
the uniqueness of the parent-child relationship. It emphasized that “it is important for the
development of children and the family unit that fathers and mothers be able to participate in
. . . the care of family members who have serious health conditions.” Id. § 2601(a)(2). Congress
sought to “balance the demands of the workplace with the needs of families,” and “to promote
the stability and economic security of families” while allowing family members to attend to one
another’s care. Id. § 2601(b). We can also discern from the text that, for parents and children,
the fact of the relationship is enough to trigger FMLA protection. Id. §§ 2611(7), (12). The
statute does not ask us, for example, to condition FMLA leave on how involved a parent is in
their child’s life. Congress sought to categorically protect children and their parents’ ability to
care for one another in times of medical need.
By its plain text, the FMLA covers more than just biological and adoptive families. A
“parent” can be “an individual who stood in loco parentis to an employee when the employee
was a son or daughter.” Id. § 2611(7). An employee can also be an in loco parentis parent.
Either way, the statute defines “son or daughter” to mean “a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco parentis, who is – (A) under
18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or
physical disability.” Id. § 2611(12). Thus, the FMLA recognizes a special relationship where
one person acts “in loco parentis”—literally, in the place of a parent—to a dependent person, or
“child.” See In Loco Parentis, Black’s Law Dictionary (12th ed. 2024). The FMLA entitles both
people in this relationship to take leave to care for one another, similarly to biological parents
and children. In short, the FMLA’s text shows us that Congress sought to protect parental
relationships, whether biological, legal, or their functional equivalents.
While the FMLA tells us what protections are available for in loco parentis parents and
their children, this case hinges on whether Chapman was an in loco parentis parent at all. The
FMLA neither defines “in loco parentis” nor specifies how or when these relationships form.
We know that the FMLA contemplates in loco parentis relationships that involve children who
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are eighteen or older. After all, the FMLA states that an employee, including an in loco parentis
parent, can take time off to care for a sick child over the age of eighteen if that child has a
disability that renders them incapable to care for themselves. Id. § 2611(12)(B). But in that
situation, the text does not say whether the in loco parentis relationship or the child’s disability
must have started during the child’s minority. The text also does not specify whether the in loco
parentis relationship must predate the child’s incapacity. Resolving this case requires us to
answer those questions.
Looking at the text, the district court held that in loco parentis relationships could not
form between adult siblings—at least after the onset of an incapacitating condition—because that
would render the list of enumerated relationships in 29 U.S.C. § 2612(a)(1)(C) virtually
meaningless. The court explained that “if merely caring for someone with a serious ailment
could create an ‘in loco parentis’ relationship, then anyone who took time off to care for a
seriously ill nephew, cousin, or friend would have an ‘in loco parentis’ relationship with that
person.” Chapman, 2023 WL 11938836, at *4. That broad view would “severely undercut
Congress’s decision to apply the FMLA to only certain relationships.” Id. That’s why the
district court reasoned that “at the very least,” the in loco parentis relationship must have formed
before the onset of the incapacitating illness or condition.
But the district court’s limitations are not necessary to give meaning to the FMLA’s list
of covered family members. Nor are they grounded in text. The district court’s concern assumes
that “merely caring for someone with a serious ailment” creates an in loco parentis relationship.
As we describe later, that’s not so; it requires a more robust relationship. See Niewiadomski,
159 F.2d at 685–86 (analyzing whether a woman stood in loco parentis to her adult cousin for the
purposes of another federal statute). And that obviates the district court’s concern about opening
the floodgates to claims Congress did not intend. Moreover, nothing in the FMLA’s text
indicates that Congress intended that we read the district court’s age or timing limitation into the
statute’s “in loco parentis” designation.
MAG’s textual analysis is likewise unconvincing. First, MAG points out that siblings are
not in the list of covered family members, which it argues implies Congress did not want siblings
to be able to take FMLA leave to care for one another. Yet the FMLA’s in loco parentis
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provision encompasses relatives—or even nonrelatives—who do not otherwise appear in the list.
Congress explicitly included in loco parentis relationships to reflect “the reality that many
children in the United States today do not live in traditional ‘nuclear’ families with their
biological father and mother” and that “[i]ncreasingly, those who find themselves in need of
workplace accommodation of their child care responsibilities are not the biological parent of the
children they care for” but instead are “simply their grandparents or other relatives or adults.”
S. Rep. No. 103-3, at 22 (1993); H.R. Rep. No. 103-8, pt. 1, at 34 (1993) (almost identical
language). MAG’s argument about the enumerated list of covered family relationships would
run contrary to Congress’s intent that the in loco parentis provision of the FMLA reach “other
relatives or adults.” S. Rep. No. 103-3, at 22.
MAG also relies on the word “child” appearing more than once in the FMLA’s definition
of “son or daughter.” See 29 U.S.C. § 2611(12). MAG argues this emphasis means the in loco
parentis relationship had to have formed when the in loco parentis child was a minor. But
“child” can refer to a son or daughter of any age; every adult is the child of their parents. Child,
Merriam-Webster Dictionary, https://perma.cc/3EGG-R6UN. MAG seems to understand this,
correctly noting that § 2611(12)(B) applies to “children” who are older than eighteen. Therefore,
§ 2611(12) could not have intended “child” to mean only a “minor,” and the repeated use of
“child” doesn’t change its meaning.
In summary, the plain text of the FMLA neither forbids nor affirmatively allows people
like Chapman to take time off to care for their adult siblings who have become incapable of selfcare in adulthood. So, we must turn to other sources of authority.
B. MAG’s Alternative Sources of Authority
MAG argues that FMLA caselaw and Department of Labor regulations and guidance
show that the FMLA does not cover in loco parentis relationships that develop between adults
after one is rendered incapable of self-care. But none answer the question.
FMLA Caselaw. MAG relies on out-of-circuit FMLA cases involving in loco parentis
relationships that developed when one party was a minor. See, e.g., Coutard v. Mun. Credit
Union, 848 F.3d 102 (2nd Cir. 2017); Martin v. Brevard Cnty. Pub. Schs., 543 F.3d 1261 (11th
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Cir. 2008) (per curiam); Sherrod v. Phila. Gas Works, 57 F. App’x 68 (3rd Cir. 2003). But just
because in loco parentis relationships often form when the in loco parentis child is under
eighteen does not mean that, as a matter of law, the child must be under eighteen when the
relationship forms. And none of these cases say as much.
Department of Labor Regulations. MAG cites a Department of Labor regulation
explaining that “[p]ersons who are ‘in loco parentis’ include those with day-to-day
responsibilities to care for and financially support a child, or, in the case of an employee, who
had such responsibility for the employee when the employee was a child,” and adding that “[a]
biological or legal relationship is not necessary.” 29 C.F.R. § 825.122(d)(3).1 MAG emphasizes
that the regulation implies a person is an in loco parentis “parent” if they cared for the employee
“when the employee was a child.” For MAG, the use of past tense—“was a child”—is critical.
It reasons that because an in loco parentis parent is a person who took care of the employee when
she “was a child,” “child” is being used to mean “minor.” MAG argues that as a result, an
employee can be an in loco parentis parent only to someone they took care of as a minor.
Resting the interpretation of the FMLA on the use of the past tense in a (quite confusing)
regulation is a tall order, and one we decline. Recall that an FMLA “parent” can be “an
individual who stood in loco parentis to an employee when the employee was a son or daughter.”
29 U.S.C. § 2611(7). The statute uses the past-tense verb “was” and describes a son or daughter
as a “child,” even though it also explicitly says sons and daughters can be over the age of
eighteen. Id. § 2611(12). In the phrase “was a son or daughter,” “was” does not imply that “son
or daughter” describes only a minor. The regulation is structured the same way as the statute, so
we do not construe its use of “was” differently. Doing so would imply that the Department of
Labor assigned the world “child” a more restrictive meaning in the regulation than Congress did
in the statute (where a child can be eighteen or over with an incapacitating disability). That
would be anomalous and constitutionally suspect. See Util. Air Regul. Grp. v. EPA, 573 U.S.
302, 327–28 (2014) (noting that allowing an agency to interpret a statute differently from how
1MAG does not argue that we must defer to this regulation. It characterizes the regulation as persuasive
authority that confirms its reading of the statute. Because the regulation does not help answer the statutory
interpretation question before us, we need not consider what level of deference, if any, is appropriate.
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Congress wrote it “would deal a severe blow to the Constitution’s separation of powers”);
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,
575 (1988) (citing canon that we construe language to avoid constitutional problems). So, we
conclude that the regulation specifies that an in loco parentis relationship may include “day-today responsibilities to care for and financially support a child,” 29 C.F.R. § 825.122(d)(3), but
not that the relationship necessarily had to be formed when the child was a minor.
Department of Labor Guidance. Finally, MAG argues that the Department of Labor has
issued persuasive guidance that supports its narrower reading of “in loco parentis.” MAG refers
to a Department of Labor fact sheet about the FMLA, arguing that the examples of in loco
parentis relationships it lists all developed when the child was a minor. U.S. Dep’t of Labor,
Wage & Hour Div., FMLA Fact Sheet #28B (2023). Again, just because the examples involve
minors does not necessarily require that one relative must be a minor when the relationship
forms; it just reflects the more common situation.
MAG recycles the same argument in response to another Department of Labor guidance
document that Chapman cites. See U.S. Dep’t of Labor, Wage & Hour Div., Administrator’s
Interpretation No. 2013-1 (Jan. 14, 2013). But—as MAG concedes—the guidance document
says that “the age of the onset of the disability is irrelevant to the determination of whether an
individual is considered a ‘son or daughter’ under the FMLA.” Id. This cuts against the district
court’s holding that the onset of the disability must occur before the age of eighteen for someone
to qualify as an in loco parentis child. MAG argues that, even if the age of onset is not
preclusive, it “changes nothing” because the examples in the guidance document show the
relationship still must develop when the in loco parentis child is a minor. Appellee Br. at 40.
The examples MAG highlights in that guidance document, though, refer to sons and daughters
generally and are not focused on in loco parentis relationships. The guidance document is
focused more broadly on the significance (or, as the Department concludes, lack thereof) of the
age of onset of disability in the FMLA leave determination generally. See Administrator’s
Interpretation 2013-1. Certainly, every biological parent-child relationship forms when the child
is under eighteen, so we are not surprised the examples in the guidance document involve parentCase: 23-3582 Document: 36-2 Filed: 12/13/2024 Page: 11
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child relationships that developed when the child was a minor. But that does not mean that in
loco parentis parent-child relationships must always operate the same way.
C. Common Law Definition of “In Loco Parentis”
Since the FMLA does not define “in loco parentis,” we presume Congress intended to
incorporate the common-law meaning of the phrase. Vander Boegh v. EnergySolutions, Inc.,
772 F.3d 1056, 1060–62 (6th Cir. 2014). Before examining the many facets of common law in
loco parentis relationships, we resolve a pivotal question for this case: whether an in loco
parentis relationship can develop during adulthood when one adult becomes unable to care for
themself. It can, so we continue to examine the common law for guidance on how to determine
whether such a relationship has indeed formed between two adults.
1. “In loco parentis” relationships forming between adults.
Surveying the English common law, we held in Thomas v. United States that in loco
parentis relationships “cannot reasonably be limited to minors.” 189 F.2d 494, 504 (6th Cir.
1951). There, a 22-year-old came to live with his aunt after the death of his parents. Our
precedent had not fully addressed or decided whether an in loco parentis relationship could
develop between adults. See Niewiadomski, 159 F.2d at 686 (not deciding). One circuit said that
it could irrespective of the adults’ health. See Zazove v. United States, 156 F.2d 24, 27 (7th Cir.
1946). Other federal courts observed that in loco parentis relationships could form between
adults when one was incapacitated by illness or disability. See United States v. McMaster,
174 F.2d 257, 259 (5th Cir. 1949) (“We do not find it necessary to say that one can never stand
in loco parentis to an adult in cases of mental or physical disability, or perhaps in extreme
poverty, but we find nothing exceptional in [the young adult’s] condition . . . .”); Meisner
v. United States, 295 F. 866, 867–69 (W.D. Mo. 1924) (farmer stood in loco parentis to “sick,
friendless, and penniless” 24-year old man who “wandered into” his farm, after he took the man
in and cared for him as a son); Horsman v. United States, 68 F. Supp. 522, 525 (W.D. Mo. 1946)
(“In cases of such inadequacy or incapacity, an adult may properly have some one stand in loco
parentis toward him.”); Howard v. United States, 2 F.2d 170, 176 (E.D. Ky. 1924)
(acknowledging that parental responsibilities “remain practically unchanged” for an adult child
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“who is of weak body or mind, unable to care for himself after coming of age.” (quoting 20
R.C.L. 586)). But in Thomas, the 22-year-old policy holder did not have an incapacitating
condition, so we asked the broader question, “should age [be a] condition” of an in loco parentis
relationship? Thomas, 189 F.2d at 504. And we answered: no. Id. Specifically, we saw no
reason “why a person may not assume a parental relation toward an adult as toward a minor.” Id.
(citation omitted).
Our reasoning in Thomas proceeded in two steps. First, we engaged in an extensive
review of common law cases regarding in loco parentis relationships. Id. at 500–04 (discussing
the writings of Lord Eldon, Lord Cottenham, and Sir William Grant on the meaning of “in loco
parentis”).2“None of these cases,” we observed, “mention the minority of a child as a requisite
to the relationship.” Id. at 503. And “in none of those cases is it indicated that any generally
accepted common law meaning of the term, in loco parentis, depends on this consideration.” Id.
We recognized that one district court case, Howard v. United States, “came to the
conclusion that a person could not stand in loco parentis to an adult . . . except where the adult
was mentally and physically incapacitated from providing for himself.” Id. (citing Howard, 2
F.2d 170). That limitation would not be preclusive in Chapman’s case, as neither party disputes
that Sharon was incapable of self-care. Regardless, we concluded in Thomas that Howard’s
reading of the common law was too narrow. Specifically, it had relied on Lord Cottenham’s
decision in Powys v. Mansfield, 3 My. & Cr. 359, 368 (1837), to hold that an adult could not be
an in loco parentis parent to another adult capable of taking care of themself. But in looking at
Lord Cottenham’s opinion, we reasoned that it “is to be doubted” that he “would have considered
it impossible” for there to have been an in loco parentis relationship between the rich uncle and
one of his nieces “solely because she was past twenty-one years of age.” Thomas, 189 F.2d at
2Each of these writers held prominent positions in the British judiciary, so their writings give us valuable
insight into the common law meaning of “in loco parentis.” Lord Eldon and Lord Cottenham each served as Lord
Chancellor, who was, at the time, the head of the judiciary. Lord Chancellor, Brittanica Academic,
https://perma.cc/Y5TJ-X6AT; John Scott, 1st Earl of Eldon, Brittanica Academic, https://perma.cc/G4KJ-G3VK;
Pepys, Charles Christopher, The History of Parliament, https://perma.cc/LL73-KR6E. Sir William Grant served for
a time as the Master of the Rolls, which presides over the Civil Division of the Court of Appeal. Master of the
Rolls, Courts and Tribunals Judiciary, https://perma.cc/XJ62-UY7W; Grant, William, The History of Parliament,
https://perma.cc/5PR4-LPQY.
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503. And we “remarked that in none of the English cases or in any other cases” decided before
Howard, “is it held that one can not stand in loco parentis to an adult.” Id.
We also recognized that many prior cases dealt with minors, “because such are the ones
toward whom this relationship is generally assumed.” Id. at 504. But we held “that fact cannot
alter the principle” that an in loco parentis relationship can form with a person once they have
entered adulthood. Id.
Second, we drew an analogy to legal adoption, which is not limited to minors. Id. The
definition of an in loco parentis relationship from the Cyclopedia of Law and Procedure centered
on adoption: “A person standing in loco parentis to a child is one who has put himself in the
situation of a lawful parent by assuming the obligations incident to the parental relation, without
going through the formalities necessary to a legal adoption.” Thomas, 189 F.2d at 503–04
(emphasis added) (citing 29 Cyc. 1670 (1908)). Because “an adult is a legal subject of adoption”
and can enter a parent-child relationship, we reasoned that one who assumes the “obligations
incident to the parental relation” even “without going through the formalities necessary to legal
adoption,” likewise “stands in loco parentis” to the adult child. Id. at 504. Indeed, as another
court recognized in defining in loco parentis, the plain meaning of the world “child” in a parentchild relationship is not limited to minors. Meisner, 295 F. at 868–69. When used “irrespective
of parentage,” the word “children” may denote minors, but “its ordinary meaning, with respect to
parentage, is sons and daughters of whatever age.” Id. at 868.
MAG’s discussion of the common law does not undercut our reading. MAG argues that
Niewiadomski—which also surveyed the common law—weighs in its favor because there, we
observed that an in loco parentis relationship “is essentially different from the relationship of
brother and sister,” which does “not include the legal obligations existing between parent and
child.” See Niewiadomski, 159 F.2d at 686. But that observation just restates an obvious point:
when a person acts in loco parentis to another, they take on duties of care and support that
surpass what is typically shown toward a sibling. The observation does not rule out the
possibility that a sibling could take on those duties. And Niewiadomski explicitly declined to
rule on the question of whether a deceased cousin’s adulthood foreclosed the possibility that an
in loco parentis relationship formed when his slightly older cousin took him in. Instead, we
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suggested that each cousin’s age was an important factor, though not “conclusive” of an in loco
parentis relationship. Id. We then rested our decision on other characteristics of their
relationship. Id. Following Niewiadomski, we resolved the age question in Thomas, which
MAG does not even cite in its briefs. And we follow that precedent.3
Therefore, reading the FMLA against the backdrop of the common law, we conclude that
in loco parentis relationships can form between adults, including adults who also happen to be
siblings. Contrary to the district court’s reading, the “child” in the in loco parentis relationship
need not be a minor at the time the relationship forms, have developed a debilitating condition as
a minor, or have developed that condition before the relationship formed. Indeed, under the
common law, a debilitating condition was not a requirement at all. Accordingly, an in loco
parentis relationship could have formed between Chapman and Sharon. Whether it did is a
separate question that we address next.
2. Evidence of an “in loco parentis” relationship between adults.
We turn again to the common law to learn what constitutes an in loco parentis
relationship between adults, so that the district court may evaluate whether such a relationship
formed between Chapman and Sharon here. “In loco parentis” is an old concept. See 1 William
Blackstone, Commentaries *441. As described above, “[t]he term ‘in loco parentis,’ according
to its generally accepted common law meaning, refers to a person who has put himself in the
situation of a lawful parent by assuming the obligations incident to the parental relation without
going through the formalities necessary to legal adoption.” Niewiadomski, 159 F.2d at 686.4
3MAG also argues that we must follow Niewiadomski because other federal courts and the Department of
Labor have both relied on it for the common law meaning of “in loco parentis” in the FMLA context. It’s true that
Niewiadomski has been applied in the FMLA context. See Dillon v. Md.-Nat’l Cap. Park & Plan. Comm’n, 382
F. Supp. 2d 777 (D. Md. 2005); Megonnell v. Infotech Sols., Inc., No. 1:07–cv–02339, 2009 WL 3857451 (M.D. Pa.
Nov. 18, 2009); U.S. Dep’t of Labor, Wage & Hour Div., Administrator’s Interpretation 2010-3 (June 22, 2010).
But the question we ask here is how the common law viewed in loco parentis relationships that formed in adulthood,
which Niewiadomski does not squarely answer. And we are not limited to Niewiadomski. Although it is one
authority we draw from, MAG ignores our other cases surveying the common law, such as Thomas, at its own peril.
4
In Thomas, we pushed back on the idea that there was one single “generally accepted common law
meaning of the term, in loco parentis.” 189 F.2d at 505. Over time, the term has cropped up in different doctrinal
settings, and while some of its key doctrinal features have remained consistent, other elements have varied
depending on the context. In light of this “considerable uncertainty” about a uniform definition across all
circumstances, we hew to the cases that most resemble the context here. Thomas, 189 F.2d at 505.
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The touchstone of this inquiry is intention. As Lord Cottenham observed in synthesizing
Lord Eldon and Sir Grant’s definitions, “the principal value” in the definition of in loco parentis
is “the intention, rather than . . . the act of the party.” Powys, 3 My. & Cr. at 367. Accordingly,
we ask not just whether a person has taken on the role of a parent by “assuming obligations” of a
parental nature, but also whether they have done so “with the intention” of serving as a parent.
Thomas, 189 F.2d at 502. It’s not enough that a person has provided for another as a parent
might, though that “raises a strong inference that the person had assumed the character of a
parent.” Id. The person “must have intended to assume” that role. Id.; see also id. at 500–501;
Niewiadomski, 159 F.2d at 686 (an in loco parentis relationship must be “the result of
intention.”). Other circuits examining the common law agree, emphasizing that “the locoparentis relationship is such that it must reside in the minds and hearts of the parties involved.”
Banks v. United States, 267 F.2d 535, 538 (2d Cir. 1959); see also Leyerly v. United States,
162 F.2d 79, 85 (10th Cir. 1947).
But how do we know adult parties intended to assume a parental relationship? In some
cases, we have relied on direct evidence that the parties thought of themselves as parent and
child, including their internal communications and statements to others that they perceived
themselves as being akin to a “mother” or “son.” Mainly, however, courts have relied on
indirect evidence to discern the parties’ intent. Courts look for “objective manifestations” of a
parent-child relationship, including “the kind of service done and the kind of thing given.”
Banks, 267 F.2d at 538–39.
There is no conclusive list of what types of acts or conduct are necessary to show a
parental relationship. A relevant Department of Labor regulation, mentioned above, provides
that “[p]ersons who are ‘in loco parentis’ include those with day-to-day responsibilities to care
for and financially support a child.” 29 C.F.R. § 825.122(d)(3) (2015). It is not clear whether
“include” in this context is limiting or broadening. See Samantar v. Yousuf, 560 U.S. 305, 317 &
n.10 (2010). But it does not make a difference in this case, as Chapman alleges she was involved
in Sharon’s day-to-day care and supported her financially. And we still look to the common law
for insight because, even for day-to-day responsibilities, “[t]he offices and duties of a parent are,
. . . ‘infinitely various.’” See Thomas, 189 F.2d at 497 (quoting Lord Cottenham in Powys,
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3 My. & Cr. at 367). “Some have no connection whatever with making provision for the child;
and many of the benefits of such a relationship, under given circumstances, would be much more
important than the making of such provision.” Id. As then-Judge Sherman Minton described,
some of “the most worthwhile, precious, and cherished things” parents provide are “wholly
separate and apart” from material things. Id. (quoting Zazove, 156 F.2d at 27). So, the inquiry is
a flexible one, but we draw valuable insights from both the regulation and past cases where, like
here, courts have looked to the common law to determine whether someone is an in loco parentis
parent to another adult for the purposes of a federal statute. See, e.g., Niewiadomski, 159 F.2d at
684 (National Service Life Insurance Act of 1940); Thomas, 189 F.2d at 495 (same); Banks, 267
F.2d at 536 (same).
Juxtaposing two of our precedents provides helpful guidance. In both Niewiadomski and
Thomas, an adult relative—who either had no immediate family or was estranged from
immediate family—came to live with an older relative (though the cousin in Niewiadomski was
only a few months older, while the aunt in Thomas was about two decades older).
Niewiadomski, 159 F.2d at 684; Thomas, 189 F.2d at 495–96. The cases have many similarities.
We noted in both that the alleged in loco parentis parent took her cousin or nephew into her
home and provided lodging, a seat at the table for meals, medical care, and clothing.
Niewiadomski, 159 F.2d at 684; Thomas, 189 F.2d at 496. The alleged in loco parentis children
also accompanied the families on vacations, exchanged gifts on the holidays, and contributed to
household chores. Niewiadomski, 159 F.2d at 684; Thomas, 189 F.2d at 496. And in both cases,
the younger relatives later served in the military and designated their aunt or cousin as the
beneficiary of their statutorily provided military life insurance, identifying the relationship as
parental. Niewiadomski, 159 F.2d at 684 (“loco parentis”); Thomas, 189 F.2d at 497 (“(Aunt)
Foster-Parent”). Both servicemen died while serving in the military, and the cousin in
Niewiadomski and aunt in Thomas sought to collect as the in loco parentis parent.
Niewiadomski, 159 F.2d at 684; Thomas, 189 F.2d at 495.
Yet in Niewiadomski we held there was no in loco parentis relationship, while in Thomas,
we held there was. Niewiadomski, 159 F.2d at 686; Thomas, 189 F.2d at 505. This distinction
rested on several key factors. Perhaps most significant, we focused on the direct evidence of
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how the relatives thought of one another. Recall that the “intention” to take on a parental role is
critical, so in Niewiadomski, the older cousin’s own testimony that they referred to one another
as “brother” and “sister” and that “she considered the insured as a brother, and not as a child”
was the “most conclusive factor” in the case. 159 F.2d at 686. Contrast that with Thomas.
While in the army, the nephew sent his aunt “intimate letters of affection,” including a “so-called
‘Mother-gram’” on Mother’s Day, concluding with: “You are a wonderful Mother.” Thomas,
189 F.2d at 496. And he later wrote her explaining how she could request his leave from the
military so he could attend his uncle’s funeral, noting that his aunt and uncle had treated him
“like a son” and that he should receive an emergency furlough because “I have always been more
or less like one of your own children.” Id. This language reflected a deep emotional connection
between the aunt and her nephew, and when he was killed in the war, she testified that she
“broke down and wept” just the same as when her “own little boy died” because she “couldn’t
tell a bit of difference in the feeling” between the nephew and her “own children.” Id. at 497.
Comparing these cases also provides insight into how we have weighed the indirect
evidence of a parental relationship. Importantly, in loco parentis parents do more than just
provide aid to a loved one who could use the help; “kindness and generosity” are not enough.
Niewiadomski, 159 F.2d at 686. Instead, in these cases we asked whether the in loco parentis
parent “assum[ed] the parental status,” including by exercising control over or assuming
obligations toward the in loco parentis child. Id.; Thomas, 189 F.2d at 498. That’s why the “self
support and independence of action” exhibited by the younger cousin in Niewiadomski mattered.
159 F.2d at 686. He “collected his wages, retained them as his own, and handled his own
finances.” Id. at 684. He paid rent to live in the house. Id. Ultimately, we explained that his
older cousin did not stand in loco parentis to him because “[h]er purpose was to aid and assist
rather than to assume any parental obligations or exercise such parental control as continues to
exist in the case of an adult child continuing to live in the parent’s home.” Id. at 686.
In Thomas, by contrast, the nephew “paid nothing for board or room,” moved with the
family when they relocated, and again accompanied them when they returned. 189 F.2d at 496.
When the nephew was sick, including an extended illness, the aunt took care of him; she “bought
his medicines, paying for them out of her own funds,” and her daughters would carry food to his
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room. Id. In turn, when her husband became paralyzed and was confined to his bed, the nephew
would assist him; feeding him, shaving him, and assisting him in getting fresh air. Id. To be
sure, in Niewiadomski, we also noted that the older cousin paid for the funeral and the expenses
for her younger cousin’s last illness. 159 F.2d at 685. But there was less evidence the cousins
intended to form a parent-child relationship than in Thomas.
Other courts have engaged in similar analyses. In Banks v. United States, another
military life insurance case, the Second Circuit concluded that an in loco parentis relationship
formed between the policyholder and his neighbor, even though they met as adults, were not
related in any way, and did not live together. 267 F.2d at 538. The court explained that the
“objective manifestations” demonstrating intent to form a parent-child relationship can take
many forms. Id. at 538. Financial support is just one of them, but it is not essential. Id. at 539.
Instead, the court focused on other facts, including: that the policyholder routinely stopped by his
neighbor’s home for meals; that he did chores and ran errands for her; that she gave him clothing
to wear that had belonged to her son; that she criticized him for drinking so much and sometimes
let him recover from a bout of heavy drinking in her apartment; that he planned to live with her
after his service; and, crucially, that he named her his emergency contact on his application for
life insurance and later designated her his beneficiary, describing her as his “Parent (LocoParentis).” Id. at 537. The district court concluded—and the Second Circuit agreed—that the
combination of these facts made the relationship “like that of a mother and an emancipated adult
son,” especially because “[t]he soldier looked on the plaintiff as a parent, as his closest
remaining connection, the one to be notified if anything happened to him.” Id. at 537–38. She
was “the one he wished to benefit by his insurance in case of his death and to whom his effects
should be sent, and her house the nearest thing to a home he could go to on release from the
service . . . .” Id. at 537. These facts denoted an in loco parentis relationship.
From reviewing these cases and others, we can identify several factors that help us
determine whether a person intended to assume parental status over another adult. We have
looked to direct evidence of how the two adults regard one another, both when communicating to
each other and describing their relationship externally. In examining indirect evidence, we have
asked whether the loco parentis parent (1) is in close physical proximity to the adult loco parentis
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child; (2) assumes responsibility to support them; (3) exercises control or has rights over them;
(4) and has a close emotional or familial bond with them, akin to that of an adult child. This list
is not exclusive, no single factor is dispositive, and they should not be weighed like a math
problem. But they are the types of factors we have looked to in evaluating similar in loco
parentis relationships in the past and may provide guidance to courts in the future.5
With this guidance, we remand to the district court to consider in the first instance
whether Chapman had an in loco parentis relationship with her sister. Because the district court
accepted MAG’s argument that, for FMLA purposes, an in loco parentis relationship could not
form between Chapman and Sharon given Sharon’s age and adult-onset cancer, it did not
evaluate their relationship in light of the common law. The district court is not limited to the
factors identified above. But it must determine if the record reflects a material question of fact as
to whether Chapman and her sister intended to form a relationship in Sharon’s final months that
was parental in nature or whether, even construing the facts in Chapman’s favor, the record
reflects the generous assistance of a devoted sister who did not intend to assume a parental
status. See Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 387 (6th Cir. 2016).6
5Although the factors indicating an in loco parentis relationship can vary by context, several of the factors
we highlight appear throughout the common law, including in cases about minors. For example, in Rutkowski v.
Wasko, a New York intermediate court of appeals explained that the “assumption of the parental relationship is
largely a question of intention which should not lightly or hastily be inferred”; a parent’s providing material support
and exercising some control is not necessarily enough. 143 N.Y.S.2d 1, 5 (App. Div. 1955). See also People v.
Munck, 937 N.Y.S.2d 334, 341–42 (App. Div. 2011) (explaining that Rutkowksi is as a “seminal opinion” and that
the case’s definition of “in loco parentis” has been followed by New York’s highest court and its intermediate
appellate courts). In Smith v. Smith, the Alabama Supreme Court held that “a nonparent stands in loco parentis if he
or she (1) assumes the obligations incident to parental status, without legally adopting the child, and (2) voluntarily
performs the parental duties to generally provide for the child.” 922 So. 2d 94, 99 (Ala. 2005). The “relationship
involve[s] more than aiding or assisting a child, and more than a feeling of kindness, affection, or generosity toward
the child.” Id. Intent to take on a parental role is paramount, as are the corresponding duties of parenthood,
including providing support, daily care, education, and instruction, as well as taking an interest in the child’s wellbeing. Id. The amount of time spent in close quarters is also “significant.” Id. Consider too Geibe v. Geibe, which
similarly held that a person standing in loco parentis must intend to shoulder parental responsibilities and that
common residency is essential. 571 N.W.2d 774, 781 (Minn. Ct. App. 1997). See also 59 Am. Jur. 2D Parent and
Child § 9 (2024); 67A C.J.S. Parent and Child § 356 (2024). Although these cases on in loco parentis relationships
involve minors, they touch upon many of the factors we discuss here with respect to adults.
6
In response to Chapman’s FMLA interference claim, MAG argued that Chapman failed to mitigate her
damages. The district court held that this affirmative defense was moot given that it granted summary judgment to
MAG on this claim. Because we reverse and remand on the FMLA interference claim, the district court may also
need to consider the affirmative defense on remand. This is also true for the FMLA retaliation and disability
discrimination claims addressed below.
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II. Chapman’s FMLA Retaliation Claims
In addition to her FMLA interference claim, Chapman also alleges that MAG retaliated
against her for requesting leave by first firing her; second, opposing her application for
unemployment benefits with false statements; and third, threatening her with Rule 11 sanctions if
she brought an FMLA lawsuit. Because Chapman’s FMLA retaliation claims rest on indirect
evidence, the McDonnell Douglas v. Green framework applies. Bryson v. Regis Corp., 498 F.3d
561, 570 (6th Cir. 2007) (citing 411 U.S. 792 (1973)). That starts with asking whether Chapman
made a prima facie showing of retaliation. Id. That requires her to provide evidence that (1) she
engaged in a statutorily protected activity; (2) she experienced an adverse employment action;
and (3) there is a causal connection between the protected activity and the adverse employment
action. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008).
The district court granted summary judgment to MAG on all three FMLA retaliation
claims. For the reasons explained below, we reverse and remand on the termination and
benefits-application claims and affirm on the sanctions-letter claim.
A. Termination
Chapman argues that MAG terminated her in retaliation for requesting FMLA leave,
regardless of whether her absences were indeed covered by the FMLA. The district court agreed
that “requesting FMLA leave is a protected activity even when the employee is not entitled to
FMLA leave”—satisfying the first requirement of the prima facie case. Chapman, 2023 WL
11938836, at *5. Nor is there a dispute about the second element; firing Chapman was an
“adverse action.” But the district court granted MAG summary judgment on the third element—
causation—because, in its view, Chapman argued “she was not fired for requesting FMLA leave,
she was fired ‘for being absent to care for her dying sister.’” Id. (citation omitted).7
7Citing the concurrence in Milman v. Fieger & Fieger, P.C., MAG argues that Chapman’s requests for
leave cannot constitute protected activity because she in fact took leave. 58 F.4th 860, 876–77 (6th Cir. 2023)
(Nalbandian, J., concurring). All that matters then, according to MAG, is whether the leave itself was protected.
But neither the majority opinion nor the concurrence MAG quotes stand for that proposition. Rather, they reaffirm
that for her retaliation claim, Chapman must show that MAG “punished her for her request per se, not for any
‘leave’ that she might have taken.” Id. at 877 (Nalbandian, J., concurring). And she made that claim on summary
judgment.
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The district court read Chapman’s claims about FMLA retaliation too narrowly, and
therefore improperly granted summary judgment for MAG. The summary judgment pleadings
show that Chapman argued alternatively that MAG fired her for taking and requesting leave.
Pl.’s Resp. Opp’n Summ. J, R. 60, PageID 2948 (“Here, Defendant fired Plaintiff for being
absent to care for her dying sister.”); id. at PageID 2927 (“Here, Plaintiff requested FMLA
leave—thus engaging in protected activity . . . . Defendant then fired her six days later . . . .”).
Specifically, Chapman disputed MAG’s contention on summary judgment that it fired her
“because she was temporarily absent for work.” Id. at PageID 2925. She expressed skepticism
that MAG’s “stated reasons are true,” and called them “pretext.” Id. Thus, she did not fully
accept, as the district court wrote, that “she was fired for being absent.” Chapman, 2023 WL
11938836, at *5 (cleaned up). She explained that irrespective of MAG’s argument that she was
not entitled to leave, her requests for leave on their own constituted protected activity. Pl.’s
Resp. Opp’n Summ. J, R. 60, PageID 2948. And then she argued that the close temporal
proximity between her two requests for FMLA leave (which she again refers to as “protected
activity”) and her termination sufficed to establish a prima facie case of causation. Id. at PageID
2949, 2951 (“Here, Plaintiff was fired mere days after requesting FMLA leave.”). Lastly, in
offering comparator evidence, she argued that “other finance managers had attendance issues,
were never fired, and none of them requested or took FMLA leave . . . .” Id. at PageID 2952
(emphasis added). Read fairly, Chapman argued that she engaged in two separate kinds of
protected activity—taking and requesting leave—and that MAG fired her in retaliation for both.
Because the district court did not recognize that Chapman claimed that MAG fired her for
requesting leave, it did not analyze this claim under the McDonnell-Douglas framework. We
remand to the district court to do so in the first instance.
B. MAG’s Opposition to Chapman’s Unemployment Benefits Application
Chapman next argues that MAG retaliated against her by submitting false information in
response to her application for unemployment benefits. The parties’ dispute on this claim
centers on the “adverse action” element of the prima facie case. The parties and the district court
agree that an employer who opposes a former employee’s application for unemployment benefits
for true and legitimate reasons has not taken an adverse action. MAG, however, seems to
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Nos. 23-3582/3613 Chapman v. Brentlinger Enters. Page 23
believe that even if the statements were false, they still cannot form the basis of a retaliation
claim because employer opposition to unemployment benefits is not actionable “as a matter of
law.” Appellee Br. at 55 (quoting Powell v. Honda of Am. Mfg, Civ. A. 06-CV-979, 2008 WL
2872273, at *2 (S.D. Ohio July 22, 2008)).8 Not so. Under Burlington Northern & Santa Fe
Railway Co. v. White, the Supreme Court held that an action is “materially adverse” in the
retaliation context if it “could well dissuade a reasonable worker” from exercising her rights.
548 U.S. 53, 57 (2006). At least two circuit courts and multiple district courts have interpreted
this to mean that supplying an unemployment authority with false information can be materially
adverse for retaliation purposes. See Steele v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008);
Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1090–91 (10th Cir. 2007) (Gorsuch, J.);
Girling v. JHW Servs., LLC, No. 21-cv-0532, 2022 WL 80279, at *3 n.1 (W.D. Tex. Jan. 7,
2022) (collecting cases). We agree. A jury could find that making false statements to an
unemployment authority is a “plainly adverse repercussion on [the plaintiff] and her family”
because it can result in “the loss of income associated with unemployment benefits.” Williams,
497 F.3d at 1090. The false statements, or threat thereof, may require a plaintiff to choose
whether to “seek vindication” of her rights or “risk a former employer’s intentional efforts to . . .
stymie her receipt of income.” Id. And they could reasonably dissuade her from choosing the
former. See id. at 1090-91.
That begs the question whether a reasonable jury could find that MAG’s statements to the
unemployment agency were false. MAG told the agency that Chapman had “quit,” that she was
a “no show” or “no call,” and that she engaged in “job abandonment.” ODJFS Employer
Information Form, R. 49-14, PageID 755. But when questioned about these statements at her
deposition, HR representative Betsacon admitted that Chapman “did not quit” and that there was
8As it did below, MAG also relies on Morningstar v. Circleville Fire & EMS Department, No. 2:15-CV3077, 2018 WL 3721077, at *8 (S.D. Ohio Aug. 6, 2018), to argue that MAG’s statements to ODJFS are
inadmissible under an Ohio privilege law. The district court did not address this argument, instead granting MAG
summary judgment on the merits. However, we note that the Southern District of Ohio has at least twice permitted
disclosure of similar materials in federal employment discrimination cases. See Klaus v. Hilb, Rogal & Hamilton
Co. of Ohio, 437 F. Supp. 2d 706, 720 (S.D. Ohio 2006); Freed v. Grand Ct. Lifestyles, Inc., 100 F. Supp. 2d 610,
617–18 (S.D. Ohio 1998). We assume for purposes of this appeal that the state-law privilege does not prevent
consideration of MAG’s statements to the ODJFS.
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Nos. 23-3582/3613 Chapman v. Brentlinger Enters. Page 24
no job abandonment because Chapman “was terminated.” Betsacon Dep., R. 49, PageID 604–
05.
Faced with the inconsistency between Betsacon’s testimony that Chapman “was
terminated” and MAG’s representations to the ODJFS that she “quit,” the district court still held
that there was not a material question of fact whether MAG made false statements in opposition
to Chapman’s application. It reasoned that just because “two statements are inconsistent does
not . . . mean that one (or perhaps either) of the statements is false: it means only that the
statements are inconsistent.” Chapman, 2023 WL 11938836, at *7. The district court also tried
to explain the inconsistency by saying that, when Chapman “did not show up to work as
scheduled” on July 17, she essentially “quit” or abandoned her job, so MAG “did not, in fact,
provide false statements in its opposition to the [a]pplication.” Id. MAG agrees, dismissing
Chapman’s argument as mere semantics. But if that’s right, then there would be no meaningful
difference between quitting and getting fired. Every time an employee is fired for failing to
comply with a workplace expectation, the employer could reframe the termination as quitting or
job abandonment. We decline this invitation to collapse these two concepts into one. Even
Betsacon understands them to be mutually exclusive. Accordingly, we reverse the grant of
summary judgment to MAG on this claim and remand for the district court to reconsider the
claim, recognizing that Chapman has satisfied the “adverse action” element of her prima facie
case.
C. MAG’s Sanctions Letter
Additionally, Chapman points to a letter MAG’s counsel wrote explaining that MAG
likely would have “a viable motion for sanctions” if she filed an FMLA interference claim with
no “good faith basis.” MAG Letter, R. 55-49, PageID 1875. She characterizes the letter as a
threat intended to bully her out of suing MAG and argues that the district court erred when it
held the sanctions letter did not constitute unlawful FMLA retaliation. But we conclude there is
not sufficient evidence that MAG sent an unfounded Rule 11 letter, so we affirm summary
judgment on this record.
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Nos. 23-3582/3613 Chapman v. Brentlinger Enters. Page 25
Under the federal rules, counsel are supposed to notify one another if they think Rule 11
sanctions may be warranted before asking a court to impose them. The Advisory Committee
notes on Rule 11 clarify that “[i]n most cases . . . counsel should be expected to give informal
notice to the other party, whether in person or by a telephone call or letter, of a potential
violation before proceeding to prepare and serve a Rule 11 motion.” Fed. R. Civ. P. 11 advisory
committee’s note to 1993 amendment. Here, MAG did exactly that. After telling Chapman
twice while she was still employed that her request for leave to care for her sister was not
covered by the FMLA, MAG sent Chapman a post-termination letter reiterating why it believed
the FMLA did not apply. Against this backdrop, MAG believed that Chapman could not have a
good faith basis for pressing ahead with her FMLA claim and warned her about the possibility of
a sanctions motion.
Chapman’s citations to two district court cases do not alter our analysis. The first deals
with a “series of letters” threatening multiple forms of “drastic relief” against a former employee,
including counterclaims with corresponding damages, attorney’s fees, and Rule 11 sanctions,
among others. Nasrallah v. Lakefront Lines, Inc., No. 17 CV 69, 2017 WL 2291657, at *2, *8
(N.D. Ohio May 25, 2017). The court in that case also observed that the employer’s legal
positions may have been in bad faith because it contradicted relevant case law. The second case
deals with repeated threats to sue a former employee and his counsel for malicious prosecution
and to move for Rule 11 sanctions. Sowards v. Toyota Motor Mfg., Civ. A. No. 15-13029, 2016
WL 3211441, at *1, *4–5 (S.D. W. Va. June 9, 2016). Neither case suggests that a single
sentence in a single letter warning a former employee about the possibility of Rule 11 sanctions
for bringing a case the employer’s lawyers believed to be frivolous—as is recited by the advisory
note to the Rule—constitutes retaliatory conduct under the FMLA. Accordingly, we affirm the
district court’s grant of summary judgment to MAG on this retaliation claim.
III. Chapman’s Associational Disability Discrimination Claims
The district court also rejected Chapman’s associational disability discrimination claim
under the Americans with Disabilities Act (ADA) and analogous Ohio laws. Here too, the
district court misconstrued Chapman’s argument, so we reverse the grant of summary judgment
and remand to the district court to analyze the record evidence of discrimination.
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A. ADA Claim
In addition to prohibiting discrimination against people because of their own disabilities,
the ADA also forbids discriminating against people because they have a close association with a
disabled person. The ADA prohibits “excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an individual with whom the qualified
individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4). The ADA
thus prevents an employer from terminating an employee based on “unfounded fears that [the
employee] would be distracted at work on account of” a loved one’s disability. Stansberry v. Air
Wis. Airlines Corp., 651 F.3d 482, 484 (6th Cir. 2011). To make out a prima facie case of
associational disability discrimination, Chapman must show that (1) she was qualified for her
position; (2) she suffered an adverse employment action; (3) her employer knew that she had a
relative with a disability; and (4) the circumstances surrounding the adverse employment action
raise a reasonable inference that the relative’s disability was a determining factor in the decision.
Id. at 487; Overley v. Covenant Transp., Inc., 178 F. App’x 488, 493 (6th Cir. 2006).
Like the FMLA retaliation claim, Chapman argues that the district court misconstrued her
associational disability discrimination claim. She is right. The district court concluded that
Chapman’s claim failed because she “was not entitled to a modified schedule to care for her
sister” under the ADA, so MAG “did not act unlawfully by threatening to terminate, or by
terminating, Plaintiff for her absences to care for her sister.” Chapman, 2023 WL 11938836, at
*6. However, as explained above, Chapman’s point was that she was not really fired for those
absences—that was pretext. See supra Part II.A. She argues that MAG’s real reason for firing
her was based on a discriminatory assumption that she would be distracted from her work
because she had a disabled sister. Pl.’s Resp. Opp’n Summ. J., R. 60, PageID 2927 (“[S]he
alleges a claim under the ‘distraction theory,’ which prohibited defendant from firing Plaintiff
because the company believed she might be absent in the future for a disabled family member.”).
Chapman offers some of the same evidence for her associational disability discrimination
claim as for her FMLA retaliation claims, reiterating the close temporal proximity between
requesting leave to care for her disabled sister and getting fired. And she compares her situation
to other finance managers who were not known to have disabled loved ones who were not fired
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for attendance issues. She further emphasizes the evidence that Betsacon—the same person who
fired her—told her that she had to choose between her sister and her job. The district court
observed that this statement is “deeply troubling and is similar to statements that support an
associational discrimination claim in other courts.” Chapman, 2023 WL 11938836, at *6.
But the court dismissed it as evidence of associational disability discrimination in this case
because it viewed Chapman’s claim as challenging only MAG’s purported decision to fire her
over her absences, which she was not entitled to protection from under the ADA. As with the
FMLA retaliation claim, therefore, we reverse the grant of summary judgment on Chapman’s
associational disability discrimination claim and remand to the district court to analyze
Chapman’s evidence of discrimination in the first instance.
B. Ohio Law Claim
Along with her ADA claim, Chapman alleged associational disability discrimination
under Ohio law. See Ohio Rev. Code § 4112.02(A). As relevant here, § 4112.02(A) makes it
unlawful for “any employer, because of the race, color, religion, sex, military status, national
origin, disability, age, or ancestry of any person, to discharge without just cause” or “otherwise
to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of
employment, or any matter directly or indirectly related to employment.” We must resolve the
parties’ dispute over whether this provision encompasses associational disability discrimination
claims. We conclude that it does.
Chapman says that Ohio courts, including the Ohio Supreme Court, have ruled that
plaintiffs may sue for associational disability discrimination under § 4112.02(A). That is almost
true; the Ohio Supreme Court recognized associational discrimination when construing a
different but analogous subsection of § 4112.02. In Ohio Civil Rights Commission v. Lysyj, the
Ohio Supreme Court ruled that § 4112.02(G), which outlaws discrimination in public
accommodations, provides a cause of action for associational claims. 313 N.E.2d 3, 6 (Ohio
1974). Section 4112.02(G)—analyzed in Lysyj—prohibits discrimination on the same bases as
those in § 4112.02(A), the provision at issue here. So it is unsurprising that a state court of
appeals subsequently held that § 4112.02(A) also provides a cause of action for associational
claims. Cole v. Seafare Enters. Ltd., Inc., No. C-950157, 1996 WL 60970, at *2 (Ohio Ct. App.
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Nos. 23-3582/3613 Chapman v. Brentlinger Enters. Page 28
Feb. 14, 1996). Both Lysyj and Cole involved allegations of race discrimination, but the rules
they announced apply to §§ 4112.02(A) and (G) generally, which include “disability” among the
protected characteristics. See id. at *1–2 (describing the issue broadly as whether § 4112.02(A)
prohibits discrimination based on association”); Ohio Rev. Code § 4112.02. The statutory text
lists both race and disability and makes no distinction between them, thus it stands to reason that
an associational claim available in one context would also be recognized in the other.
MAG cites a pair of unpublished cases from this court that cut in the opposite direction.
See Smith v. Hinkle Mfg., Inc., 36 F. App’x 825, 830–31 (6th Cir. 2002); Kepreos v. Alcon
Lab’ys, Inc., 520 F. App’x 375, 376 (6th Cir. 2013) (per curiam). But these two cases do not
address Lysyj or Cole—or indeed, any Ohio state court decision. We must defer to state supreme
court interpretations of state law. See Green Party of Tenn. v. Hargett, 791 F.3d 684, 693 (6th
Cir. 2015). And in another unpublished decision, we cited Lysyj and Cole to support the
proposition that § 4112.02(A) “prohibits discrimination based on association.” Arnold v. City of
Columbus, 515 F. App’x 525, 529 (6th Cir. 2013). The Southern District of Ohio has reached
the same conclusion in several cases. See, e.g., Easter v. Beacon Tri-State Staffing, Inc., No. 17-
cv-00197, 2019 WL 4737694, at *8 (S.D. Ohio Sept. 27, 2019) (collecting cases); Maxwell v.
City of Columbus, No. 08–cv–264, 2011 WL 2493525, at *4 (S.D. Ohio June 21, 2011). Here,
although the Ohio Supreme Court’s decision is not directly on point, it interprets an analogous
provision. So we predict that the Ohio Supreme Court will interpret § 4112.02(A) the same way,
just as other Ohio courts have done. Accordingly, on remand, the district court must evaluate
Chapman’s associational disability discrimination claims under both state and federal law.
IV. MAG’s COBRA Statutory Penalties Claim
In its cross appeal, MAG does not dispute that it violated COBRA’s notice requirements.
Instead, it argues that the district court abused its discretion by awarding Chapman statutory
penalties of $85 per day for each day that MAG failed to give notice.
To reach this number, the district court started by noting that the statute caps penalties at
$110 per day, but the exact amount is left to the court’s discretion. See 29 U.S.C. § 1132(c)(1)
(explaining that the court may, in its discretion, impose a penalty “up to” the statutory limit);
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Nos. 23-3582/3613 Chapman v. Brentlinger Enters. Page 29
29 C.F.R. § 2575.502c-1 (increasing the statutory penalty to $110 per day). In exercising that
discretion, courts often consider whether the defendant acted in bad faith and whether the
plaintiff was prejudiced. Bartling v. Fruehauf Corp., 29 F.3d 1062, 1068–69 (6th Cir. 1994)
(collecting cases); see also Cultrona v. Nationwide Life Ins. Co., 748 F.3d 698, 708 (6th Cir.
2014) (quoting Moothart v. Bell, 21 F.3d 1499, 1506 (10th Cir. 1994), for the proposition that the
“circuits are in general accord that neither prejudice nor injury are prerequisites to recovery
under the penalty provisions of the statute,” but that “these are factors the district court may
consider in deciding to exercise its discretion to award a penalty”).
The district court reasoned that Chapman had not produced evidence that MAG violated
COBRA in bad faith, but that she had shown she was “significantly prejudiced by the lack of
notice.” Chapman, 2023 WL 11938836, at *9. Because she did not receive notice of her
coverage options under COBRA, Chapman did not acquire health insurance until May 2020.
Without coverage, she delayed treatment for a condition she later discovered was malignant skin
cancer.
The court then compared this case with other district court decisions within our circuit.
Where there was neither prejudice nor bad faith, one district court decided—and we affirmed—
that $55 per day was an appropriate penalty. See Cultrona v. Nationwide Life Ins. Co., 936 F.
Supp. 2d 832, 855 (N.D. Ohio 2013), aff’d, 748 F.3d 698 (6th Cir. 2014). Where there was both
prejudice and bad faith, another district court imposed the maximum penalty of $110 per day.
Gregory v. Goodman Mfg. Co., No. 10-CV-23, 2012 WL 685298, at *6–7 (E.D. Tenn. Jan. 13,
2012), report and recommendation adopted, 2012 WL 685283 (E.D. Tenn. March 2, 2012).
Between these poles, the court balanced “the significant prejudice to [Chapman], the lack of bad
faith, and all the circumstances of the case,” and determined that $85 per day was appropriate.
Chapman, 2023 WL 11938836, at *10. That was not an abuse of discretion.
MAG does not give any convincing reason to conclude otherwise. The cases it cites
involving lower statutory penalties either do not mention prejudice or say that the plaintiff did
not adequately show prejudice. None of them suggest a district court abuses its discretion when
it increases the statutory penalty to account for a finding of significant prejudice. See Chenoweth
v. Wal-Mart Stores, Inc., 159 F. Supp. 2d 1032, 1043–44 (S.D. Ohio 2001); McGrath v.
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Nos. 23-3582/3613 Chapman v. Brentlinger Enters. Page 30
Lockheed Martin Corp., 48 F. App’x 543, 557 (6th Cir. 2002); Daniel v. Eaton Corp., 839 F.2d
263, 268 (6th Cir. 1988); Cultrona, 748 F.3d at 708; Kanoski v. Sterling Paper Co., No. 09–CV–
0439, 2014 WL 1384159, at *7 (S.D. Ohio Apr. 9, 2014). MAG contends that it had “no
opportunity to respond or rebut” Chapman’s evidence of prejudice because she submitted a
declaration describing the delayed treatment with her reply brief. Appellee Br. at 63. True, as
MAG notes, we have held that a district court cannot deny a nonmovant an “opportunity to
respond” to new evidence introduced for the first time in the movant’s reply. See Seay v. Tenn.
Valley Auth., 339 F.3d 454, 481–82 (6th Cir. 2003). However, in the two-plus months after
Chapman filed her reply brief and before the district court issued its opinion, MAG did not
challenge the submission or ask for leave to file a sur-reply. Thus, unlike the cases MAG cites,
the district court did not deny it the opportunity to respond. See Eng’g & Mfg. Servs., LLC v.
Ashton, 387 F. App’x 575, 583 (6th Cir. 2010). Thus, we will not disturb the district court’s
decision.
CONCLUSION
We reverse the district court’s grant of summary judgment to MAG on Chapman’s
(1) FMLA interference claim; (2) FMLA retaliation claims based on MAG’s termination
decision and false statements in response to the unemployment benefits application; and
(3) ADA and Ohio law associational disability discrimination claims, and remand for further
consideration consistent with this opinion. We affirm the district court’s grant of summary
judgment to MAG on Chapman’s FMLA retaliation claim based on MAG’s letter mentioning
Rule 11 sanctions. And we affirm the district court’s award of $85 per day as statutory penalties
for MAG’s failure to give the requisite notice under COBRA.
Case: 23-3582 Document: 36-2 Filed: 12/13/2024 Page: 30 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-5_15-cv-00295/USCOURTS-ared-5_15-cv-00295-1/pdf.json | [
[
"Derrick Lamont Booth",
"Plaintiff"
],
[
"Wendy Kelley",
"Defendant"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
DERRICK LAMONT BOOTH PETITIONER
ADC #86775
5:15-cv-00295 JLH-JTK
WENDY KELLEY, Director,
Arkansas Department of Correction RESPONDENT
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following recommended disposition has been sent to United States District Court Judge
J. Leon Holmes. Any party may serve and file written objections to this recommendation.
Objections should be specific and should include the factual or legal basis for the objection. If the
objection is to a factual finding, specifically identify that finding and the evidence that supports your
objection. An original and one copy of your objections must be received in the office of the United
States District Court Clerk no later than fourteen (14) days from the date of the findings and
recommendations. The copy will be furnished to the opposing party. Failure to file timely
objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendations and also desire to submit new, different, or
additional evidence, and to have a hearing for this purpose before the District Judge, you must, at
the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing
is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District
Case 5:15-cv-00295-JLH Document 73 Filed 12/21/16 Page 1 of 26
Judge in the form of an offer of proof, and a copy, or the original, of any
documentary or other non-testimonial evidence desired to be introduced at the
hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary
hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and “Statement of Necessity” to:
Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, AR 72201-3325
DISPOSITION
A Pulaski County Circuit Court jury found Petitioner, Derrick Booth, guilty of arson. He
filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and on January 25,
2016, the undersigned issued a partial recommendation to the District Judge that Booth’s first, third,
and fourth claims be denied; that his second claim be partially denied; and that, pursuant to Martinez
v. Ryan, 132 S.Ct. 1309 (2012), an evidentiary hearing be held on the remaining ineffective
assistance of counsel arguments made in the second claim. (Doc. No. 31).
On February 23, 2016, the District Judge adopted in part and remanded in part the partial
recommendation. Specifically, the District Judge declined to accept the portion of the proposed
findings and recommended partial disposition that concluded Booth’s trial counsel was not
ineffective in his cross-examination of Fire Marshal Baker on issues pertaining to the source and
origin of the fire. Therefore, the District Judge ordered that the evidentiary hearing also include
review of that claim. (Doc No. 37) Subsequently, on February 24, 2016, the undersigned set for
hearing on May 25, 2016, the following ineffective assistance of trial counsel claims: (1) failure to
impeach Fire Marshal Baker on (a) his qualifications and (b) the method he used to determine the
2
Case 5:15-cv-00295-JLH Document 73 Filed 12/21/16 Page 2 of 26
source and origin of the fire; and (2) failure to challenge the State’s forensic evidence of arson.
(Doc. No. 38)
The evidentiary hearing took place on June 1, 2016, and the parties subsequently filed their
post-hearing briefs. (Doc. Nos. 59, 70, 71) The remaining issues are now ready for decision. Based
on the evidence submitted at the hearing and the post-hearing briefs of the parties, it is the
undersigned’s recommendation that the writ of habeas corpus be denied.
Standard of Review under Martinez v. Ryan
“Errors of counsel made on post-conviction review that cause the default of other claims
generally cannot serve as a basis for cause to excuse a petitioner’s procedural default of his claims.”
Workman v. Blades, 2014 WL 4773953, at *9 (D. Idaho, Sept. 24, 2014) (citing Coleman v.
Thompson, 501 U.S. 722, 752 (1991)) (emphasis in original). Martinez v. Ryan, supra, established
a limited exception to the Coleman rule, when it held that “inadequate assistance of counsel ‘at
initial-review collateral review proceedings may establish cause for a prisoner’s procedural default
of a claim of ineffective assistance at trial.’” Id. (citing Martinez, 132 S. Ct. at 1315). “In Trevino
v. Thaler, 133 S. Ct. 1911 (2013), the United States Supreme Court clarified that the
Martinez/Coleman ‘cause’ test consists of four necessary prongs [outlined below]. The failure to
meet any prong means that the Martinez exception is unavailable.” Id. (citing Martinez, 132 S. Ct.
at 1319).
Cause under Martinez is established where
(1) the claim of “ineffective assistance of trial counsel” is a substantial claim; (2) the
“cause” consisted of there being “no counsel” or only “ineffective” counsel during
the state collateral review proceeding; (3) the state collateral review proceeding was
the “initial” review proceeding in respect to the “ineffective-assistance-of-trialcounsel claim”; and (4) state law requires that an “ineffective assistance of trial
counsel [claim] . . . be raised in an initial -review collateral review proceeding.”
3
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Trevino v. Thaler, 133 S. Ct. at 1918 (citing Martinez, 132 S. Ct. at 1318-1319, 1320-1321)
(alterations in original).
Discussion
Given the standard outlined above, the undersigned has determined that the issues presented
are adequate enough to excuse procedural default and explore them under Strickland. See Workman,
2014 WL 4773953, at *10 (citing Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)) (“a court may
conclude that a claim is substantial when a petitioner has shown that ‘resolution’ of the merits of the
Strickland claim would be ‘debatable among jurists of reason,’ or that the issues presented are
‘adequate to deserve encouragement to proceed further.’”).
I. Testimony from Trial
a. Captain Naim Salaam
The State’s first witness at trial was Captain Naim Salaam with the Little Rock Fire
Department. Captain Salaam testified that he worked the fire at 3 Althia Circle on October 5, 2012.
Petitioner’s Exhibit 7, Vol. I, at 116-117.1 He was the first person on scene, and he arrived shortly
after 4:25 p.m. Id. at 130-131. When Captain Salaam did a walk-around of the home, he determined
that the house looked secured, meaning the windows were down and the front and back doors were
locked. Id. at 118. The firefighters made entrance into the home via the front door, located the fire
in a bedroom, and extinguished it. Id. at 118-119. Once he entered the home and went into the
bedroom where the fire was located, Captain Salaam found a bunch of clothing in a pile on the
floor, and he determined that it was the location where the fire started. Id. at 122-123. He did not
1
The Court refers to the page numbers in the upper right-hand corner of the page as
opposed to the Bates-stamped numbers in the lower right-hand corner of each page.
4
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find an ignition source close to the items burned. Id. at 124. Because Captain Salaam was unable
to determine the ignition source, he had to get a fire marshal to the scene. Id. at 125-126.
b. Captain Kevin Murphy
Captain Murphy with the Little Rock Fire Department testified the he also responded to a
home fire at 3 Althia Circle on October 5, 2012. Id. at 140. He took the crew inside, searched for
the fire, and extinguished it. Id. They located the fire in the front right room of the dwelling. Id.
at 141. Prior to entrance, the firefighters knocked the window out to that room. When they entered
the home, the firefighters found the door to the room closed. Id. The fire was behind the door, so
Captain Murphy opened the door and had the crew come behind him to extinguish the fire once he
opened the door to make the fire flame up when it caught air. Id. Captain Murphy noted that the
home was in a ransacked state. Id. at 143. He exited the home and informed his commanding
officer, Captain Salaam, what he saw. Id.
c. Fire Marshal Ryan Baker
Baker testified that he had worked for the City of Little Rock Fire Department for a little
over four years. Id. at 149. He had been in a fire marshal capacity since October 2011. Baker noted
that his primary duty as a fire marshal was to investigate fires to determine the origin and cause. Id.
He outlined his educational background and specialized training as follows. In 1997, Baker worked
as a police officer and criminal investigator with the Fayetteville Police Department where he stayed
for six years. In 2003, he moved to Sherwood and worked as a police officer and criminal
investigator. While in Sherwood, he worked a fire case that peaked his interest in fires so he became
a volunteer fireman with the Sherwood Fire Department, where he still worked. Id. at 150.
Thereafter, he had a job opportunity with the bomb squad and moved to the Little Rock Fire
5
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Department as a firefighter. He was a post-blast investigator through the Federal Bureau of
Investigations (FBI) and would go to bomb scenes whenever there had been an explosion and
conduct investigations. Id. at 151. Because of his previous police experience, he was moved into
the fire marshal division in October 2011. Id. at 150. Since taking that post, he had worked 178 fire
investigations at the time of Petitioner’s trial in April 2013. Id.
Baker had specialized training in fire cause and origin; he attended the state fire academy
for several courses as well as the national fire academy for courses and on-the-job training. At the
time of trial, Baker was a fire investigation technician, but he was scheduled to test in the next
couple of weeks to become a certified fire investigator through the International Association of
Arson Investigators. Id. at 151.
Given Baker’s experience and training, the State moved to offer him as an expert in fire
investigation and arson. Defense counsel did not object. Id. Baker explained that there were four
fire classifications or causes: natural, accidental, incendiary, and undetermined. Id. at 152. An
incendiary fire was one caused by human involvement, and an undetermined fire was one where (1)
there were either multiple sources of ignition and one specific source could not be identified, (2)
there was a lack of an ignition source, or (3) there is a fire has fully developed and everything burns
to the point where it is impossible to determine the source. Id. at 152, 178.
Baker acknowledged investigating the fire at 3 Althia Circle on October 5, 2012. Id. at 153.
He prepared an investigation report and ruled the fire to be incendiary. Id. at 165. Baker took two
samples to the state crime lab in search for accelerants. Id. at 168. The results of that testing
indicated that no ignitable liquids were detected. Id. at 169. Baker explained that, “just because it’s
an incendiary fire doesn’t mean that we have to have accelerants. . . . So even though I did not have
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an ignitable liquid in an incendiary fire, this actually tells me I did not have spontaneous combustion
as well and ruling out that as a form of accidental fire.” Id. at 170.
After conducting his investigation, Baker spoke to the homeowner, Mrs. Jacqueline Clark
Booth, Petitioner’s estranged wife. Id. at 167. Mrs. Booth shared a series of text messages from
Petitioner with Baker. Id. at 171-172. Those messages included photographs from Petitioner to
Mrs. Booth depicting the state of the house and messages that called Mrs. Booth some derogatory
names. Id. at 171, 176-177. The State asked Baker if he was able to develop a suspect based upon
his investigation, and Baker answered yes and then identified Petitioner. Id. at 172. Defense
counsel did not object.
On cross-examination, the following colloquy took place between defense counsel and Fire
Marshal Baker:
DEFENSE COUNSEL: Isn’t this a classic example of an undetermined fire?
FIRE MARSHAL BAKER: No, sir, it’s not.
DEFENSE COUNSEL: Why is it not?
FIRE MARSHAL BAKER: Because any type of ignition source in this was removed
from the scene. I alleviated all other types of ignition source
in the area of my origin of my fire. The only other type of
ignition source could be one that was taken away from the
scene.
DEFENSE COUNSEL: Excuse me? You’re certain that they were removed from the
scene?
FIRE MARSHAL BAKER: Yes, sir, they were.
DEFENSE COUNSEL: What is your basis for determining that?
FIRE MARSHAL BAKER: They were not found in the area of origin.
. . .
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DEFENSE COUNSEL: Now, this is a report from the Arkansas crime Lab that was
sent to you; is that correct?
. . .
Read what the results of this examination are?
FIRE MARSHAL BAKER: “No ignitible liquids were detected in ERB 1 or ERB 2.
Ignitible liquids may evaporate or be totally consumed during
a fire. A negative result does not preclude the presence of a
ignitable liquid during a fire.”
DEFENSE COUNSEL: And this [refers] to ignitable liquids?
FIRE MARSHAL BAKER: That’s what the test was for.
DEFENSE COUNSEL: Were there any determinations from the crime lab as to
something that could have been removed?
FIRE MARSHAL BAKER: I don’t understand your question, sir.
DEFENSE COUNSEL: You just said that the ignitable sources were removed? How
do you base that if you have a crime lab such as the one we
have here, crime lab report.
FIRE MARSHAL BAKER: Are you referring to the ignition source was removed?
DEFENSE COUNSEL: Ignition source or ignitable - - no ignitable liquids were
detected in item ERB 1 or ERB 2; is that correct?
FIRE MARSHAL BAKER: Correct.
DEFENSE COUNSEL: So what are you saying was removed that was the ignitable
source?
FIRE MARSHAL BAKER: My competent - - my competent ignition source.
DEFENSE COUNSEL: Your competent ignition source?
. . .
And what could that be?
FIRE MARSHAL BAKER: That could be matches. That could be a lighter.
. . .
DEFENSE COUNSEL: Now, you indicated part of the reason you made a
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determination that Booth should be charged was because of
text messages?
FIRE MARSHAL BAKER: Yes, sir.
DEFENSE COUNSEL: Is there anything anyplace in the text messages you read
where Derrick Booth said he was going to burn anyplace
down?
FIRE MARSHAL BAKER: I would have to look through it again, sir, but I don’t believe
so.
DEFENSE COUNSEL: Did he say in that text message that he was going to do any
bodily harm to Jacqueline Clark Booth?
FIRE MARSHAL BAKER: I don’t believe so, sir.
DEFENSE COUNSEL: So to your knowledge, Mr. Booth never threatened to do her
any bodily harm, did he?
FIRE MARSHAL BAKER: Not to my knowledge other than Ms. Booth giving me a
statement saying why she had left the residence earlier the
day before.
DEFENSE COUNSEL: And who did she leave that residence with?
FIRE MARSHAL BAKER: She stated that she was escorted there by the Little Rock
Police Department in order to get some belongings and leave
in fear that Mr. Booth would hurt her.
DEFENSE COUNSEL: So if Mr. Booth had threatened her, she had an opportunity to
turn to a Little Rock police officer who escorted her there and
tell the police officer that he had threatened her; is that
correct?
FIRE MARSHAL BAKER: She had the opportunity, yeah. I’m not sure if she did or not.
DEFENSE COUNSEL: Now, do you have any knowledge that he has ever hit her or
laid his hands on her in any violent way?
FIRE MARSHAL BAKER: No, sir, I do not.
. . .
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DEFENSE COUNSEL: Did you see any other traces of an attempt to set a fire?
FIRE MARSHAL BAKER: No, sir, I did not.
DEFENSE COUNSEL: So you’re suggesting to the jurors that Derrick Booth
intended to set something on fire but he wanted it restricted
to one room?
FIRE MARSHAL BAKER: I do not know what his intentions were when he set the fire,
sir.
DEFENSE COUNSEL: Thank you.
Id. at 179- 189.
II. Testimony from Evidentiary Hearing
a. Robert Paul Bieber
Petitioner’s habeas counsel called Robert Paul Bieber as an expert. Mr. Bieber started his
public service career as a paramedic and then a firefighter. DE # 62 at 7. He gained certification
as a fire and explosion investigator from the National Association of Fire Investigators.
Subsequently, Bieber worked for an independent forensic engineering firm where he conducted
origin and cause investigations, primarily for insurance companies. Id. at 8. During that time, he
completed his bachelor’s degree in criminal justice and went to work for the State of California
Department of Insurance as a criminal fraud investigator but later went back part-time as a fire
investigator with the engineering firm while also working part-time as a deputy coroner. Id. In
2010, Mr. Bieber became involved with post-conviction arson review with the Northern California
Innocence Project. Id. Work with the Innocence Project later led him to found and direct the Arson
Research Project, where with the assistance of an advisory board, he examines the reliability of
evidence used in the investigation and prosecution of arson. Id. In this capacity, Mr. Bieber has also
consulted, reviewed, and served as a private, independent fire investigator conducting case review
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for defense attorneys handling fire cases across the country. Id. at 9.
Mr. Bieber was contacted by habeas counsel to review the case documents in this matter,
which included the fire investigation report of Fire Marshal Baker, the trial testimony, and the expert
witness testimony involved herein. Id. at 10. According to Mr. Bieber, the National Academy of
Science published a report in 2009 that tried to evaluate the strengths and weaknesses of a variety
of forensic sciences, including fire investigation—although not the focus of the report. Id. at 11; see
also Petitioner’s Ex. 11. According to Bieber, the report was significant in that it recognized that
“sometimes the scientific underpinnings of various forensic disciplines are not quite as strong as you
might be led to believe.” Id. Bieber noted that the report identified two core thresholds to consider:
(1) was the testimony and the conclusions that the expert testified to based on solid scientific and
reliable methodology and (2) how much of the analysis was based on human interpretation. Id. at
11-12.
The National Fire Protection Association (NFPA) published a guidebook called the GUIDE
FOR FIRE AND EXPLOSION INVESTIGATIONS, also known as NFPA 921, to aid fire investigators on
how to conduct an investigation. The guide is updated and revised every few years, and although
some small and large changes have been made, Bieber notes that the one thing that has stayed the
same is the connection between fire investigation and the scientific method. Id. at 12-15. Bieber
noted that NFPA 921 is widely accepted as the premier guide that fire investigators use in
determining the origin and cause of a fire. Id. at 16. He states that fire investigation conclusions
need to be based on empirical evidence or physical evidence — evidence that can be observed or
measured or that can be verified and known to be true. Id. at 24. Bieber noted that, while witness
statements are legitimate to form working hypothesis concerning the circumstances surrounding a
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fire, they do not form the basis for an expert to base his /her opinion upon. Id. The NFPA 921 does
not mention witness statements in the chapter related to cause of a fire and are “only mentioned in
the origin determination as far as being a legitimate source of information.” Id. at 25.
From his review of the case file in this matter, Bieber determined that Fire Marshal Baker’s
investigation was completely reliable and reasonable as to the origin of the fire because it was based
on a reasonable amount of quality and quantity of physical and empirical evidence. Id. Bieber did
not agree with Fire Marshal Baker’s conclusion as to the ignition source of the fire (open flame)
because there was no physical or empirical evidence to support it. Id. Bieber could not say that an
open flame did not start the fire—only that, he believed Fire Marshal Baker applied the negative
corpus methodology, which is, “if you don’t know what started it, then it must have been an open
flame.” Id. at 26. It is Bieber’s opinion that such a conclusion did not comply with NFPA 921, was
a violation of the scientific method, and was not based upon the application of scientific and
technical principles sufficient to render a reasonable conclusion. Id. at 26-27. According to Bieber,
because Fire Marshal Baker was unable to determine an ignition source, the more reasonable
conclusion in conformance with NFPA 921's scientific method would be to conclude that the fire
was undetermined. Id. at 27. Bieber testified that it was a violation of the scientific method and
NFPA 921 for a fire marshal to testify as to the ignition source of a fire in the absence of any
physical or empirical evidence to support it. Id. a 28. He concluded that Fire Marshal Baker’s
testimony that the ignition source of this fire could have been a match or lighter did not rise to the
“threshold of confidence required by NFPA 921, and [had] the potential of misleading the jury into
believing that, as an expert fire investigator, he has determined that it was an open flame that could
have been a match or a lighter.” Id. at 30.
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Bieber testified that:
Let me just be clear. All of those steps that Investigator Baker took were completely
reasonable and he was conducting a thorough criminal investigation. With the
exception of his ignition source conclusion, I think he conducted a thorough forensic
examination. Had they been separate investigations so that his final conclusions
regarding the forensic science, his expert conclusions, would have been based only
on the fire scene examination, we would have no controversy here. But by doing
both, the information from the criminal investigation - - which he had to collect
because he’s doing a thorough criminal investigation - - it can’t help but to influence
his final conclusions. And frankly, I think that’s how the negative corpus
methodology allows the fire investigator to conclude whatever - - because they are
making a conclusion on a lack of physical evidence, they can make any conclusion
they want. And whether they choose an open flame, which they then further associate
with an intentional fire, or they say: Oh, it’s just undetermined, often has its roots in
this outside information in how it influences a conclusion.
So perhaps had Investigator Baker not been aware of any of these outside
circumstances that would make someone concerned or suspicious that Mr. Booth was
involved in the fire, maybe he would have looked at that lack of physical evidence
of the ignition source and said: The cause is undetermined.
. . .
The problem that happened in this case, frankly, and in many cases, is that he was
asked to go beyond his expertise in origin and cause determination and asked to
classify the fire as intentional or accidental, where you can only make that
conclusion when considering - - first, that conclusion is not an expert conclusion for
the reasons we discussed. But it can only reasonably be made by examining the
totality of the circumstances, all the information that he collected, not during his fire
scene examination, but then it’s presented to the jury as something that is based on
science like his previous testimony was.
Id. at 30-45.
On cross-examination, Bieber testified that, like any other expert, fire investigators are
entitled to base their opinion on their training and experience, which is not a deviation from NFPA
921. According to NFPA 921, the goal of all investigators “is to arrive at accurate determinations
related to the origin, cause, fire spread, and responsibility for the incident.” Id. at 56-57; see also
Respondent’s Ex. I, at 921-19. He acknowledged that this goal was “a little wider-encompassing
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than just fire investigation[.]” Id. at 57. Bieber also acknowledged on cross examination that NFPA
921 states with regard to the cause of a fire that, in some instances, “a single item, such as an
irrefutable article of physical evidence or a credible eye witness to the ignition, or a video recording,
may be the basis of determination of cause,” and also that “recording the scene, note taking,
photography, evidence identification, witness interviews, origin investigation, failure analysis, and
other data collection activities may be performed simultaneously with these efforts.” Id. at 59-60;
see also Petitioner’s Exhibit 1, at 921-170. This testimony refuted Bieber’s earlier testimony on
direct that witnesses were not mentioned when determining the cause of a fire under NFPA 921.
b. Marion Andrew Humphrey, Sr.
Trial counsel, Marion Humphrey, also testified at the evidentiary hearing. Mr. Humphrey
testified that he was a retired Pulaski County Circuit Court Judge where he served for over eighteen
(18) years. DE #62, at 82. Humphrey came to be involved in the case after his friend and
Petitioner’s stepfather asked Humphrey to represent Petitioner. Id.
In preparation for this case, Humphrey acknowledged that he did not consider getting an
expert. He spoke with individuals in an effort to pinpoint Petitioner’s location in order to exclude
him as a possible suspect. Id. at 90-91. After reviewing the fire report, Humphrey also spoke with
a church member who was a firefighter. Id. at 90. Mr. Humphrey did not show the church member
the report, but Humphrey talked to him on the telephone about the use of the terminology contained
therein. Id. at 92-93. Humphrey identified several trial strategies that were weighed for benefits and
risks. Some of those strategies were eliminated due to the potential risk. Id. at 99-100. The
intended trial strategy was to “poke holes” in some of the State’s evidence that would create
sufficient reasonable doubt as to Petitioner’s involvement. Id. at 91. He also sought to (1) question
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what motive Petitioner had to cause this fire and (2) show opportunity of others to cause the fire,
including Jacqueline Clark Booth. Id. at 95-96. Humphrey determined that Petitioner undermined
the latter strategy because, when Petitioner took the stand, he did not implicate her. Id. at 96-97.
Humphrey did not feel as if Fire Marshal Baker’s report was sufficient to establish that the
fire was of a specific cause and determination. Id. at 93. He acknowledged that he had to be
sensitive to attacking Fire Marshal Baker’s credibility because “a lot of people think very highly of
a fire department. And you have to be sensitive to that in trying to attack their credibility.” Id. at
101. So instead, Humphrey sought to challenge Baker’s determination that the fire was incendiary
in nature as opposed to undetermined. Id. at 93-95. Humphrey sought to attack Fire Marshal
Baker’s conclusions from a common sense perspective and did not do any investigation into forensic
fire investigation—a decision he admits that was not as informed as it could have been. Id. at 103-
105. He did not question Baker’s credentials, did not do any real study into fire investigation, and
did not consult his own expert. Id. at 104-106. Humphrey stated that he thought the fire should
have been undetermined and admits that he “dropped the ball” on consulting an expert that may have
been able to bolster that conclusion. Id. at 110-112. Even with an expert, however, Humphrey
testified that he was not sure he would have put the expert on the stand if he or she could not
conclusively eliminate Petitioner or any person. His reasoning was because it would have still left
his client in the realm of possible suspects—especially given the vulgar texts Petitioner sent to
Jacqueline Clark Booth and the other relevant evidence, like the broken glass table that Petitioner
admittedly broke—evidence that a jury could have used to find Petitioner as someone angry, out of
control and subject to do something destructive. Id. at 112-114. Humphrey admitted that, by not
studying or consulting with an expert, he was limited in terms of what he could expect for a defense
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strategy. Id. at 113-114.
III. Ineffective Assistance of Counsel Claims
a. Qualifications
Petitioner claims trial counsel was ineffective for his failure to (1) impeach Fire Marshal
Baker on (a) his qualifications and (b) the method he used to determine the source and origin of the
fire and (2) challenge the State’s forensic evidence of arson.
According to Petitioner, because Fire Marshal Baker was the only witness who testified that
Petitioner intentionally set the fire to the home, failing to attack his qualifications and findings left
the jury with the misimpression that he was qualified to opine on the ultimate issue of the case. DE
#71 at 4. Petitioner asserts further that Fire Marshal Baker was not qualified to render his opinion
that he was the culprit of the fire. Id. at 5.
The standard used to evaluate the admissibility of expert testimony is set forth in Rule 702
of the Federal Rules of Evidence. Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness had applied the principles and methods reliably to the facts of the
case.
Fed. R. Evid. 702. Daubert v. Dow Pharm., 509 U.S. 579 (1993) established that the Court has a
gatekeeping function to ensure that “any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” Id. at 589; see Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
To the extent Petitioner is complaining that Fire Marshal Baker lacked the requisite
qualifications sufficient for the Court to permit him to testify as an expert, that argument is
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unavailing. Notably, Petitioner did not object to the State’s offer of Fire Marshal Baker as an expert
in fire investigations and arson, and it is unlikely that such an objection would have been successful
anyway. See Petitioner’s Exhibit 7, Vol. I, at 151; see also Marmo v. Tyson Fresh Meats, Inc., 457
F.3d 748, 758 (8th Cir. 2006) (“Courts should resolve doubts regarding the usefulness of an expert’s
testimony in favor of admissibility.”); Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th
Cir. 2006) (Rule 702 “only requires that an expert possess ‘knowledge, skill, experience, training,
or education’ sufficient to ‘assist’ the trier of fact, which is ‘satisfied where expert testimony
advances the trier of fact’s understanding to any degree.’”) (internal citation omitted). Fire Marshal
Baker was the person who investigated the crime at 3 Althia Circle. While he had only been in the
position with the Little Rock Fire Department for approximately a year at the time of the fire, at the
time of trial, he had been involved in 178 fire investigations in over a two-year period. Id. at 150.
Along with on-the-job training, he had attended various courses and training from industry
organizations in fire cause and origin. Id. This experience and training was sufficient to qualify Fire
Marshal Baker to testify as an expert. To suggest otherwise in this instance the Court believes
would “invade the province of the jury, whose job it is to decide issues of credibility and to
determine the weight that should be accorded evidence.” United States v. Vesey, 338 F.3d 913, 916-
17 (8th Cir. 2003). “The relative skill or knowledge of an expert goes to the weight of that witness’s
testimony, not its admissibility.” Loudermill v. Dow Chem. Co., 863 F.2d 566, 569 (8th Cir. 1988).
This testimony, however, is subject to some limitations. “Legal conclusions do not qualify
as expert opinions.” Johnson v. Ball, No. 4:13cv586 TIA, 2015 WL 1061564, at *2 (E.D. Mo.
March 11, 2015) (citing Jones v. Slay, No. 4:12cv2109 CAS, 2014 WL 2804407, at *11 (E.D. Mo.
June 20, 2014)). There are cases that allow a fire origin and cause expert to testify as to what they
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found, where the fire started, and possible causes based on that evidence, but do not allow the expert
to go any further. See Weisgram v. Marley Co., 169 F.3d 514 (8th Cir. 1999) (allowing expert to
testify about burn and smoke patterns and other physical evidence but finding expert unqualified to
testify with respect to a possible heater malfunction). In United States v. Lundy, 809 F.2d 392, 395-
396 (7th Cir. 1987), the Seventh Circuit suggested that an expert could not testify that a defendant
or anyone in particular caused a fire, although he/she could, based upon the results of the
investigation— which may have included hearsay and third-party observations—provide an expert
opinion as to whether a fire was natural, accidental, undetermined, or incendiary. See also United
States v. Peneaux, 81 F.Supp.3d 764, 768 (S.D. Oct. 7, 2014). Similarly in Brandt Distrib. Co., Inc.
v. Federal Ins. Co., 247 F.3d 822, 825 (8th Cir. 2001), the Eighth Circuit held that a fire captain’s
trial testimony that a fire was a “fraud fire” “set for fraudulent purposes” did not violate Rules 37
or 26 of the Federal Rule of Civil Procedure. The Court noted that the captain’s testimony did not
usurp the province of the jury because he gave no opinion as to who might have started the fire, and
“did not give an opinion as to who was responsible for the fire.” Id. at 826.
To the extent that Petitioner claims trial counsel was ineffective for failing to challenge Fire
Marshal Baker’s testimony that, from his investigation, he was able to develop Petitioner as a
suspect, the undersigned disagrees. It was Fire Marshal Baker’s job to investigate this fire and make
a professional opinion as to its origin and cause. He did not state on direct examination that
Petitioner caused this fire, which is a determination of guilt or innocence in criminal matters that is
within the exclusive province of the jury. Instead, he merely noted that, based on his investigation,
he developed Petitioner as a suspect. The undersigned recognizes that to some this may be a
distinction without a difference and that reasonable minds could differ. See Olesen v. Class, 164
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F.3d 1096, 1102 (8th Cir. 1999) (counsel’s deficient performance in failing to object to the
psychologist’s testimony that L.S. would not fabricate a story involving sexual abuse did not render
“the result of the trial unreliable or the proceeding fundamentally unfair,” as is required before we
set aside a conviction on ineffective assistance of counsel grounds.); Cf. State v. Walters, 120 Idaho
46, 813 P.2d 857 (2013) (trial counsel was ineffective when he failed to object to fire marshal’s
testimony that defendant started the fire). Nonetheless, the undersigned concludes that, even if one
were to find cause, Petitioner cannot prove prejudice. The prejudice prong of Strickland focuses on
whether counsel’s performance rendered the trial unreliable or the proceedings unfair. See Lockhart
v. Fretwell, 506 U.S. 364 (1993). In this instance, there was ample evidence from which the jury
could conclude that Petitioner committed this crime.
b. Methodology
Petitioner’s habeas counsel takes issue also with trial counsel’s failure to challenge the
methodology Fire Marshal Baker used to determine the source and origin of the fire. Her expert at
the evidentiary hearing, Robert Bieber, testified that Baker deviated from the standard protocols of
fire investigation contained in the NFPA 921. Bieber insisted that Fire Marshal Baker did not
comply with NFPA 921 and that his conclusion that the fire was incendiary, absent the ability to
determine an ignition source, was not based upon the application of scientific and technical
principles sufficient to render a reasonable conclusion.
NFPA 921 was never mentioned at Petitioner’s trial; therefore, the undersigned need not
determine whether Fire Marshal Baker’s methodology complied with NFPA 921. Even assuming
Baker’s analysis was inconsistent with NFPA 921, the failure of counsel to challenge Baker’s nonuse of NFPA 921 does not automatically render him ineffective. While NFPA 921 is widely
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accepted as the standard guide in the field of fire investigation, it is not the only reliable method of
fire investigation. Manuel v. MDOW Ins. Co., 791 F.3d 838, 845 (8th Cir. 2015) (“This court has
qualified NFPA 921 as a reliable method endorsed by a professional organization for determining
the cause of a fire. Following NFPA 921 is not the only method of fire investigation that we have
approved. But if an expert purports to have followed NFPA 921, he must have followed it reliably,
or his testimony may be excluded.”) (internal citations omitted). See also Torske v. Bun-O-Matic
Corp., No. A4-03-21, 2004 WL 1717649, at *5 (D. N. D. July 28, 2014) (“It is not readily apparent
that a failure to strictly adhere to all NFPA guidelines renders an investigation incomplete or
unreliable. In addition, while these guidelines provide a legitimate criteria for evaluating an
investigation, there is nothing before the Court to suggest they are exhaustive or exclusive.”);
American Family Mut. Ins. Co. v. Hewlett-Packard Co., Civil No. 07-792 ADM/AJB, 2008 WL
2130217, at *4 (D. Minn. May 19, 2008) (“a failure to strictly adhere to NFPA 921 renders an
investigation per se unreliable. NFPA 921 is not the exclusive standard for investigating fire and
explosion.”).
Bieber believed that Fire Marshal Baker applied the negative corpus methodology, but
regardless of whether negative corpus is approved by the NFPA 921, “the absence of an accidental
explanation for a fire frequently has been cited as a sufficient basis for a finding of arson.” Somnis
v. County Mut. Ins. Co., 840 F.Supp2d 1166, 1171 (D. Minn. 2012); see also Hickerson v. Pride
Mobility Prods. Corp., 470 F.3d 1252, 1257-1258 (8th Cir. 2006) (holding, without any reference
to NFPA 921 that “[b]ased on the identification of a point of origin and the elimination of other
possible causes, it is permissible for [the cause and origin expert] to testify as to the point of origin
and to explain that he inferred through process of elimination that the PowerChair was the cause of
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the fire”).
Here, Baker reached his conclusion that the fire was incendiary based on his experience, his
physical inspection of the property, interviews with Petitioner and his estranged wife, and
information from the crime lab report. Regardless of whether it was an NFPA 921 approved
method, the undersigned finds that Baker’s methodology was reliable. See Hickerson, 470 F.3d at
1257 (holding that a cause and origin expert’s methodology was reliable where he: (1) “examined
burn patterns, examined heat, fire, and smoke damage, considered this evidence in light of testimony
regarding the fire, and identified a point of origin”’ (2) “then considered as possible causes of the
fire those devices that contained or were connected to a power source and that were located at the
identified point of origin”; and (3) eliminated as possible sources those devices that were not in the
area of origin or that were not connected to a power source and contained no internal power
source”). The decision not to follow the methodology set forth in NFPA 921, as well as other
purported flaws in Baker’s methodology, goes to the weight, not admissibility, of the evidence. As
such, the undersigned cannot say that Petitioner met his burden of showing counsel was ineffective
for failing to object to Baker’s methodology. Even if the failure to object fell below an objective
standard of reasonableness, Petitioner does not meet his burden under Strickland by showing
prejudice. At trial, counsel cross examined and challenged Fire Marshal Baker’s conclusion that the
fire was incendiary as opposed to undetermined. See Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc.,
125 F.3d 1176, 1183 (8th Cir. 1997) (“[T]he factual basis of an expert opinion goes to the credibility
of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis
for the opinion in cross-examination.”) (quoting Hose v. Chicago Northwestern Transp. Co., 70 F.3d
968, 974 (8th Cir. 1995)); Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 283 (8th Cir.
21
Case 5:15-cv-00295-JLH Document 73 Filed 12/21/16 Page 21 of 26
1995) (“Once the trial court has determined that a witness is competent to testify as an expert,
challenges to the expert’s skill or knowledge go to the weight to be accorded the expert testimony
rather than to its admissibility.”).
c. State’s Forensic Evidence
Lastly, Petitioner argues that counsel was ineffective for his failure to make reasonable
investigations to challenge the State’s forensic evidence of arson. DE #71, at 20-21. Specifically,
Petitioner asserts counsel did not do any scientific research or consult any experts to learn about fire
investigation; he did not discuss the Fire Marshal’s report with his fellow church-member who was
a firefighter; and he was unfamiliar with the significance of NFPA 921. Therefore, it is Petitioner’s
contention that trial counsel was not in a position to make a strategic decision about how to
challenge the State’s evidence and did not know he could raise a Daubert challenge to the Fire
Marshal’s testimony or findings.
Petitioner uses Jackson v. McQuiggin, 553 Fed. Appx. 575 (6th Cir. 2014), as a comparison
case. In Jackson, a petitioner convicted of arson argued that counsel was ineffective at trial because
she opted to forgo expert testimony to refute the State’s expert’s theory that he used an accelerant
to intentionally start a fire. Jackson and his girlfriend shared an apartment. In 2006, he allegedly
set fire to the apartment using an accelerant. The day before the fire, he and his girlfriend had
argued, and she attempted to leave. After convincing Jackson she would stay, the girlfriend later
escaped to her mother’s house. When Jackson found her, he smashed his truck into her mother’s
vehicle, and when she called the police, she was told about the fire at her residence. Jackson was
charged with arson. “The circumstantial evidence against him was overwhelming. Jackson was the
only person other than [the girlfriend] with a key to her apartment, he had previously threatened to
22
Case 5:15-cv-00295-JLH Document 73 Filed 12/21/16 Page 22 of 26
burn down the apartment, he had gone to a relative of [the girlfriend’s] the day of the fire looking
for a gun to ‘kill [his] bitch,’ and Jackson was the last person seen leaving the apartment shortly
before the fire.” Id. at 577. Jackson was subsequently convicted.
On his direct appeal, Jackson moved for a new trial, arguing that his trial lawyer failed to
challenge the scientific validity of the fire marshal’s conclusions concerning the cause and origin
of the fire. The Michigan Court of Appeals remanded the case for an evidentiary hearing. Trial
counsel and a fire expert testified at that hearing. Trial counsel testified that she thought an expert
was unnecessary because (1) the prosecution could not prove that an accelerant had been used
because neither the crime lab report nor the canine accelerant detection unit indicated the presence
of an accelerant, and (2) she did not want to confuse the jury or needlessly distract them by
presenting competing authorities. Id. In counsel’s view, “juries tend to favor prosecution witnesses
when experts testify.” Id. at 578.
The expert testified but could not rule out arson. Instead, he argued the fire marshal deviated
from the standard protocols for fire investigation contained in the NFPA 921. He noted there was
no physical evidence to support the fire marshal’s conclusion that the fire was started by an
accelerant and charged that it was “possible” the fire started as a result of a pot left on the stove.
Id.
Following the hearing, the trial court denied the motion for new trial, finding counsel’s
justifications for not obtaining a defense expert reasonable, and alternatively finding that, even if
petitioner had employed a defense expert, the result would not have been different. Id. The
Michigan Court of Appeals affirmed, and the Michigan Supreme Court denied review. On federal
habeas appeal, the district court held trial counsel could have offered an expert witness but the
23
Case 5:15-cv-00295-JLH Document 73 Filed 12/21/16 Page 23 of 26
decision not to was reasonable given that the scientific evidence did not support arson. The district
court granted a certificate of appealability on trial counsel’s ineffective assistance claim. The Sixth
Circuit affirmed the district court’s denial of a writ, finding in part that (1) it was defensible for trial
counsel not to present expert testimony as it might have confused the jury, undermined the defense’s
credibility, or biased the jury in favor of the prosecution’s expert witness, and that (2) trial counsel
adequately prepared and mounted a defense by (a) requesting a Daubert hearing, (b) seeking to
attack the fire marshal report by showing he deviated from NFPA 921, (c) reading numerous articles
about arson, studying resources from the Innocence Project on burn patterns, and reviewing NFPA
921 in anticipation of trial, (d) consulting several defense attorneys, one of whom represented a
client charged with felony arson murder, (e) discussing with petitioner why foregoing expert
testimony was prudent, and (f) eliciting important concessions from the fire marshal on crossexamination. Id. at 580-582.
Jackson goes on to provide that “the range of reasonable applications is substantial when
Strickland applies.” Id. at 583. “When Strickland applies, as it does here, courts have ‘more leeway
. . in reaching outcomes in case-by-case determinations.’” Id. (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). Therefore, the Sixth Circuit did not second-guess the Michigan Supreme
Court’s determination that trial counsel was not ineffective for failing to call an arson expert based
on the evidentiary record that memoralized counsel’s articulated trial strategy. Because decisions
about challenging witnesses and evidence generally fall into the category of “strategic choices,”
courts “generally entrust cross-examination techniques, like other matters of trial strategy, to the
professional discretion of counsel.” United States v. Villalpando, 259 F.3d 934, 939 (8th Cir. 2001).
As to challenges to the prosecution’s witnesses, the “threshold of reasonable professional
24
Case 5:15-cv-00295-JLH Document 73 Filed 12/21/16 Page 24 of 26
competence required by Strickland,” may be violated where counsel cannot articulate a reasoned
strategy for failing to do something. See United States v. Orr, 636 F.3d 944, 953 (8th Cir. 2011).
Strategic decisions made after thorough investigation are “virtually unchallengeable.” See
Strickland, 466 U.S. at 690. Courts must assess whether the investigation leading to a strategic
decision “was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523 (2003).
With this in mind, the undersigned concludes that, even if trial counsel’s strategy fell below
an objective standard of reasonableness, Petitioner cannot show that counsel’s errors were so serious
that he was deprived of a fair trial. “There must be a ‘substantial,’ not simply ‘conceivable,’ chance
of a different result.” Jackson, 553 Fed. Appx. at 580. Trial counsel articulated a reasoned trial
strategy wherein he acknowledged that he did not want to attack Fire Marshal Baker’s qualifications
because jurors thought highly of individuals at the fire department. He did, however, seek to attack
the Fire Marshal’s report in an attempt to cast some doubt that the fire was incendiary in nature. He
further sought to establish that other people had access to the house and could have caused the fire.
This was indeed a circumstantial case. Petitioner’s own expert at the evidentiary hearing
could not rule out that the fire was not caused by arson. There was also testimony that Petitioner
was at the home on that day, that he had been sending vulgar text messages to his estranged wife
previously, and that he had sent text messages with photographs admitting that he had shattered the
glass dining room table and overturned the dining room chairs. Evidence also suggested that he was
the last person to have left the home before the fire. Trial counsel acknowledged that, even if he had
consulted an expert, he might not have put him or her on the stand if Petitioner could not have been
conclusively eliminated because, given the evidence, his client could have still been in the realm of
possible suspects. The jury heard about the text messages, Petitioner’s whereabouts on the day of
25
Case 5:15-cv-00295-JLH Document 73 Filed 12/21/16 Page 25 of 26
the fire, and counsel’s cross-examination of Fire Marshal Baker wherein he questioned the cause
of the fire in this instance. While trial counsel certainly could have done more to strengthen his
defense strategy, the undersigned cannot say that trial counsel’s strategy was unreasonable given
the circumstances.
Conclusion
Based on the foregoing, the undersigned recommends that the instant writ of habeas corpus
be denied and dismissed with prejudice.
Certificate of Appealability
When entering a final order adverse to the Petitioner, the Court must issue or deny a
certificate of appealability. Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Court. The Court can issue a certificate of appealability only if Petitioner has made a
substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(1)-(2). Because
reasonable minds could differ on the issue of whether trial counsel was ineffective for failing to
challenge Fire Marshal Baker’s testimony that, from his investigation, he was able to develop
Petitioner as a suspect, the Petitioner has provided a basis for issuing a certificate of appealability.
IT IS SO ORDERED this 21st day of December, 2016.
____________________________________
UNITED STATES MAGISTRATE JUDGE
26
Case 5:15-cv-00295-JLH Document 73 Filed 12/21/16 Page 26 of 26 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca2-15-01014/USCOURTS-ca2-15-01014-0/pdf.json | [
[
"Richard Chiang",
null
],
[
"Consumer Data Industry Association",
"Amicus Curiae"
],
[
"Consumer Mortgage Coalition",
"Amicus Curiae"
],
[
"CoreLogic, Inc.",
"Appellant"
],
[
"Federal Trade Commission",
"Appellee"
],
[
"Independent Community Bankers of America",
"Amicus Curiae"
],
[
"LeadClick Media, Inc.",
"Appellant"
],
[
"LeanSpa, LLC",
null
],
[
"Boris Mizhen",
null
],
[
"Mortgage Bankers Association",
"Amicus Curiae"
],
[
"National Consumer Reporting Association",
"Amicus Curiae"
],
[
"NutraSlim U.K. Limited",
null
],
[
"NutraSlim, LLC",
null
],
[
"Real Estate Providers Council",
"Amicus Curiae"
],
[
"State of Connecticut",
"Appellee"
],
[
"Angelina Strano",
null
],
[
"United States Chamber of Commerce",
"Amicus Curiae"
]
] | 15‐1009‐cv
FTC v. LeadClick Media, LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2015
(Argued: June 3, 2016 Decided: September 23, 2016)
Docket Nos. 15‐1009‐cv, 15‐1014‐cv
FEDERAL TRADE COMMISSION, STATE OF CONNECTICUT,
Plaintiffs‐Appellees,
v.
LEADCLICK MEDIA, LLC , successor to LeadClick Media, Inc., CORELOGIC, INC.,
Defendants‐Appellants,
LEANSPA, LLC, a Connecticut limited liability company, NUTRASLIM, LLC, a
Connecticut limited liability company, NUTRASLIM U.K. LIMITED, a United
Kingdom limited liability company, DBA LeanSpa U.K. LTD, BORIS MIZHEN,
individually and as an officer of LeanSpa, LLC, NutraSlim, LLC, and NutraSlim
U.K. LTD, RICHARD CHIANG, individually and as an officer of LeadClick Media,
Inc., ANGELINA STRANO, Relief Defendant,
Defendants.
The Clerk of Court is respectfully directed to amend the official caption to
conform to the above.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page1 of 50
‐ 2 ‐
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
Before:
HALL, LYNCH, AND CHIN, Circuit Judges.
Consolidated appeals from a judgment of the United States District
Court for the District of Connecticut (Hall, C.J.), granting summary judgment in
favor of plaintiffs‐appellees the Federal Trade Commission and the State of
Connecticut. Defendant‐appellant LeadClick, LLC challenges the district courtʹs
rulings that (1) it is liable for deceptive practices under the Federal Trade
Commission Act and the Connecticut Unfair Trade Practices Act and (2) it is not
entitled to immunity under Section 230 of the Communications Decency Act.
Defendant‐appellant CoreLogic, Inc., LeadClick LLCʹs parent company,
challenges the district courtʹs ruling that it is liable as a relief defendant for the
obligations of LeadClick, LLC.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
WALTER P. LOUGHLIN (David R. Fine, Elisa J.
DʹAmico, Paul F. Hancock, David A.
Bateman, on the brief), K&L Gates LLP, New
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page2 of 50
‐ 3 ‐
York, NY, Harrisburg, PA, Miami, FL, and
Seattle, WA, for Defendant‐Appellant
LeadClick Media, LLC.
JONATHAN D. HACKER (Anton Metlitsky, Burden
H. Walker, on the brief), OʹMelveny & Myers
LLP, Washington, D.C. and New York, NY,
for Defendant‐Appellant CoreLogic, Inc.
MICHELE ARINGTON, Assistant General Counsel
(Jonathan E. Nuechterlein, General
Counsel, Joel Marcus, Director of
Litigation, on the brief), Office of the General
Counsel, Federal Trade Commission,
Washington, D.C., for Plaintiff‐Appellee
Federal Trade Commission.
George Jepsen, Attorney General, Jonathan J.
Blake, Matthew F. Fitzsimmons, Assistant
Attorney Generals, Office of the Attorney
General, Hartford, CT, for Plaintiff‐Appellee
State of Connecticut.
Thomas M. Hefferon, William M. Jay, Goodwin
Procter LLP, Washington, D.C., for Amici
Curiae United States Chamber of Commerce,
Consumer Mortgage Coalition, Consumer Data
Industry Association, Independent Community
Bankers of America, Mortgage Bankers
Association, National Consumer Reporting
Association, and Real Estate Providers Council.
CHIN, Circuit Judge:
In this case, plaintiffs‐appellees the Federal Trade Commission (the
ʺFTCʺ) and the State of Connecticut (the ʺStateʺ) seek to hold defendant‐appellant
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page3 of 50
‐ 4 ‐
LeadClick Media, LLC (ʺLeadClickʺ) liable for its role in the use of deceptive
websites to market weight loss products. LeadClick managed a network of
affiliates ‐‐ known as ʺpublishersʺ ‐‐ to advertise on the internet products of its
merchant client, LeanSpa, LLC and related entities (collectively, ʺLeanSpaʺ).
Some of these affiliates created deceptive websites, falsely claiming that
independent testing confirmed the efficacy of the products. The FTC and the
State brought this action below, asserting claims against LeadClick under
Section 5 of the Federal Trade Commission Act (the ʺFTC Actʺ), 15 U.S.C.
§ 45(a)(1), and the Connecticut Unfair Trade Practices Act (ʺCUTPAʺ), C.G.S.A.
§ 42‐110b(a). The FTC also filed a claim against defendant‐appellant CoreLogic,
Inc. (ʺCoreLogicʺ), LeadClickʹs parent company, as a relief defendant.
The district court (Hall, C.J.) granted summary judgment in favor of
the FTC and the State, holding that (1) LeadClick violated the FTC Act and
CUTPA as a matter of law, and (2) LeadClick was not entitled to immunity under
Section 230 of the Communications Decency Act (the ʺCDAʺ). It also ordered
CoreLogic to disgorge money that it had received from LeadClick.
We affirm the district courtʹs grant of summary judgment for the
FTC and the State with respect to the claims against LeadClick, reverse as to the
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page4 of 50
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Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page5 of 50
‐ 6 ‐
In 2011, LeadClick employed a staff of eight to ten people in its
ʺeAdvertisingʺ division. Some of those employees worked as affiliate managers,
managing relationships with affiliate marketers, while others worked as account
managers, managing relationships with merchants. Affiliate managers were
responsible for scouting and recruiting new affiliates, researching affiliates, and
matching affiliates with particular merchant offers. LeadClick would review and
control which affiliates were selected to provide online advertising for each
merchantʹs offer.
Independent from its eAdvertising affiliate network business,
LeadClick engaged in ʺmedia buyingʺ by purchasing advertisement space for
banner advertisements from well‐known websites. After LeadClick purchased
media space, it would resell the space, sometimes to affiliate marketers, at a
markup.
2. LeadClickʹs Relationship with LeanSpa
In August 2010, an eAdvertising account manager contacted
LeanSpa to solicit business, suggesting that ʺLeanSpa could be a great fit in the
eAds network.ʺ J. App. at 714‐15a. LeanSpa, an internet retail business, sold
purported weight‐loss and colon‐cleanse products under various brand names.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page6 of 50
‐ 7 ‐
LeanSpa hired LeadClick to provide online advertising through its affiliate
network in September 2010.
Pursuant to their contractual arrangement, LeanSpa was to pay
LeadClick a set amount ‐‐ typically $35 to $45 ‐‐ each time a publisherʹs
advertisement directed an online consumer to LeanSpaʹs landing page and that
consumer enrolled in LeanSpaʹs free‐trial program (referred to herein as an
ʺactionʺ).1 This arrangement was commonly referred to in the affiliate marketing
industry as a cost per action (ʺCPAʺ) agreement. LeadClick was responsible for
paying 80 to 90 percent of the amount it charged LeanSpa per action to the
publisher under separate CPA agreements with its affiliate marketers. LeadClick
would retain the difference as compensation for its role connecting merchants
with its affiliate network and managing those affiliates.
To keep track of individual actions, LeadClick provided a unique
link to its affiliate marketers for use in LeanSpa advertisements. When
customers clicked on that link, they would unknowingly be routed through the
1 Once customers enrolled in the ʺfree trialʺ offer, LeanSpa would
deceptively enroll them in automatic credit card billing following the trial period. This
practice drew the attention of the FTC, which investigated and filed an action against
LeanSpa prior to discovering LeadClickʹs involvement.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page7 of 50
‐ 8 ‐
HitPath server to the LeanSpa website. The HitPath server would record
information on the customer, including the specific affiliate that directed the
consumer to LeanSpa. The data was then used by LeadClick to determine the
total number of actions for which it could charge LeanSpa and its corresponding
contractual liability to the individual affiliates responsible for those actions.
Because both LeadClick and its affiliate marketers profited per action generated,
they were incentivized to maximize consumer traffic to LeanSpaʹs websites.
As the business relationship progressed, LeadClick became
LeanSpaʹs primary marketing network, and LeanSpa became LeadClickʹs ʺtop
customer.ʺ J. App. at 343a; 908a; 1016a. By 2011, LeanSpa offers represented
approximately 85 percent of all eAdvertising division sales.
In total, LeadClick billed LeanSpa $22 million over the course of
their contractual agreement. LeanSpa was chronically behind on its payments to
LeadClick: LeanSpa owed LeadClick $6.4 million by March 2011 and
approximately $10 million by June 2011. LeanSpa ultimately paid LeadClick
$11.9 million, approximately half of its outstanding bill.
In accordance with industry practice, LeadClick paid its publishers
before it received payment from LeanSpa. Despite LeanSpaʹs steep outstanding
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page8 of 50
‐ 9 ‐
balance, LeadClick continued to pay its affiliate marketers for advertising
LeanSpa products online. In September of 2011, LeadClick terminated its
business arrangement with LeanSpa.
3. LeadClickʹs Involvement in the Use of Fake News Sites
to Market LeanSpa Products
Certain affiliates hired by LeadClick used fake news sites to market
LeanSpa products. These fake news sites, which were common in the industry at
the time, looked like genuine news sites: they had logos styled to look like news
sites and included pictures of supposed reporters next to their articles. The
articles generally represented that a reporter had performed independent tests
that demonstrated the efficacy of the weight loss products. The websites also
frequently included a ʺconsumer commentʺ section, where purported
ʺconsumersʺ praised the products. But there were no consumers commenting ‐‐
this content was invented.
The vast majority of internet traffic to LeanSpaʹs websites from
LeadClickʹs affiliate network came from fake news sites. The FTC investigator
who reviewed spreadsheets produced by LeadClick, which documented traffic to
LeanSpaʹs website from LeadClick affiliates, found that all of the 24 identifiable
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page9 of 50
‐ 10 ‐
affiliate websites that sent 1,000 or more consumers through LeadClickʹs affiliate
network were fake news sites.
While LeadClick did not itself create fake news sites to advertise
products, as discussed below, it (1) knew that fake news sites were common in
the affiliate marketing industry and that some of its affiliates were using fake
news sites, (2) approved of the use of these sites, and, (3) on occasion, provided
affiliates with content to use on their fake news pages.
i. LeadClickʹs Knowledge of Fake News Sites
First, LeadClick knew that fake news sites were commonplace in the
industry. For example, one eAdvertising division employee noted that in the
summer of 2010, fake news sites were ʺfairly common,ʺ J. App. at 158‐59a, while
another testified in his deposition that during his time at LeadClick, ʺeveryone
was using ʹem,ʺ id. at 235a. In conversations amongst themselves and with
affiliates and merchants, LeadClick employees occasionally discussed fake article
pages, fake news pages, and news style pages.
Second, LeadClick knew of its own affiliatesʹ use of fake news sites
to promote LeanSpaʹs products. For the LeanSpa account, a LeadClick employee
created an affiliate ʺscouting reportʺ which consisted exclusively of fake news
site names like Health8News.net, News‐Health6.com, ConsumerNews24.com,
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page10 of 50
‐ 11 ‐
BreakingNewsat6.com, and News6Access.com. One account manager testified
that he saw fake news sites from LeadClick affiliates that contained information
that was ʺnot truthful or accurate,ʺ including websites advertising LeanSpa
products. J. App. at 387a, 389a. LeadClick employees also discussed the content
of their affiliatesʹ fake news sites, such as ʺstep 1 and step 2,ʺ a typical fake news
site product pairing system, demonstrating that their awareness extended
beyond general knowledge. See J. App. at 800a.
ii. LeadClickʹs Approval of Affiliatesʹ Fake News Sites
LeadClick employees also affirmatively approved of the use of fake
news sites: One LeadClick employee told an affiliate interested in marketing
LeanSpa offers that ʺNews Style landers are totally fineʺ followed by two
punctuation marks commonly united to represent a smiley face. J. App. at 761a.
Another employee told a potential new client that ʺ[a]ll of our traffic would be
through display on fake article pages.ʺ Id. at 750a (emphasis added). LeadClickʹs
standard contract with affiliate marketers required affiliate marketers to submit
their proposed marketing pages to LeadClick for approval before they were
used.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page11 of 50
‐ 12 ‐
iii. LeadClick Requested Edits to the Content of Fake News
Sites
Finally, on occasion, LeadClick employees requested content edits to
some of its affiliates using fake news sites. When LeanSpa informed LeadClick
of certain requirements for its advertisements, LeadClick provided these
requirements to affiliates and would review proposed advertisements for
compliance with LeanSpaʹs requirements. For example, when LeanSpa noticed
that some of the affiliate marketers were pairing a LeanSpa ʺstep 1ʺ product with
another merchantʹs ʺstep 2ʺ on fake news sites, it informed LeadClick of a new
LeanSpa product that should be used for ʺstep 2ʺ and LeadClick ordered its
affiliates to implement that change in their fake news websites. J. App. at 800‐
801a.
In one instance, after hearing of a state action against another
network for false advertising, a LeadClick employee reached out to an affiliate to
ʺmake sure all [his] pages [were] set up good[,] like no crazy [misleading] info.ʺ
J. App. at 231a. The affiliate responded that he was removing references to his
page being a ʺnews siteʺ and thinking of ʺremoving the reporter picsʺ from the
site to be safe. Id. at 230‐31a. The LeadClick employee advised him not to stop
using the fake reporterʹs picture, but to ʺjust add [the term] advertorial.ʺ J. App.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page12 of 50
‐ 13 ‐
at 231‐32a. In a later online conversation, the LeadClick employee advised the
affiliate to delete references to acai berry on his fake news site and instead use
words like ʺspecial [ingredient], formula, secret, bla, bla, blaʺ because ʺwe
noticed a huge increase in [actions] with stuff that doesnʹt [s]ay acai.ʺ J. App. at
1015a.
Another employee sent an affiliate a list of ingredient information
about a LeanSpa product, referring to it as ʺgood content that we can use for the
pageʺ and stating ʺif we get this inserted correctly and make the page look good
we can blow this up.ʺ J. App. at 778a. Providing feedback on another affiliateʹs
page, that same employee stated that the site ʺlooks good except you CANT say
anything about a free trial.. [sic] I need that removed,ʺ id. 787a, and noted that
ʺ[i]t is much more realistic if you say that someone lost 10‐12 lbs in 4 weeks
rather than saying anything more than that,ʺ id. at 788a.
4. LeadClickʹs Media Buying on Behalf of Affiliates With Fake
News Sites
In addition to providing LeanSpa access to its affiliate network,
LeadClick occasionally purchased advertising space on genuine news sites for
banner advertisements that would link to the fake news sites promoting
LeanSpaʹs products as part of its ʺmedia buyingʺ business. When soliciting
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page13 of 50
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Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page14 of 50
‐ 15 ‐
CLUSI. During the restructuring, CoreLogic transitioned LeadClick and six of its
sister subsidiaries into a ʺshared services systemʺ to streamline and enhance back
office functions across the subsidiaries. Pl. FTCʹs Local Rule 56(a)(2) Statement in
Response to CoreLogic, Inc.ʹs Local Rule 56(a)(1) Statement (ʺFTC 56(a)(2)
Statementʺ) at ¶ 4, Federal Trade Commission v. LeanSpa, LLC, No. 3:11‐cv‐01715‐
JCH, ECF No. 309.
Shared services programs allow related entities to consolidate some
or all of their back‐office functions, such as accounting, legal and compliance,
human resources, and information technology, into a single office.
Concentrating these functions allows the companies to operate more efficiently
and reduce their administrative expenses. These programs are common in
business today ‐‐ Amici Curiae estimate that ʺmore than eighty percent of Fortune
500 companies have implemented some form of shared services in their domestic
operations.ʺ Amici Br. at 5.
As part of CoreLogicʹs shared services system, CoreLogicʹs back
office began to handle accounts payable for LeadClick and its sister subsidiaries
in January 2011. The accounts receivable process was transitioned several
months later, beginning in July 2011. After January of 2011, when LeadClick
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page15 of 50
‐ 16 ‐
accrued a payable expense, CoreLogic would make the payment directly on its
behalf, and track the payment as an advance to LeadClick. Both LeadClick and
CoreLogic intended that LeadClick would later reimburse CoreLogic for those
advances from its incoming revenue once CoreLogic transitioned LeadClickʹs
accounts receivables process to the shared services program. Pursuant to this
agreement, CoreLogic advanced approximately $13 million to pay LeadClickʹs
expenses from January through August of 2011, and recorded these expenses as
an intercompany liability. ʺ[T]here was no agreed upon repayment schedule or
repayment deadline, no security for those advances, no written loan agreement,
and no interest due in connection with the funds CoreLogic provided LeadClick
in 2011.ʺ J. App. at 38a.
Once LeadClickʹs accounts receivable system transitioned to
CoreLogic as part of the shared services agreement, CoreLogic began to recoup
its prior advances by executing daily sweeps of the revenues received by
LeadClick: Incoming funds deposited into LeadClickʹs account were
automatically swept first into an account held by CLUSI, and then directed into
an account held by CoreLogic. Through these sweeps, LeadClick repaid a total
of $8.2 million of its advance balance to CoreLogic. Half of this amount was
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page16 of 50
‐ 17 ‐
repaid in a single cash transfer on August 30, 2011 (the ʺAugust 30 Transferʺ),
when LeadClick, in transitioning its accounts receivable, withdrew $4.1 million
in customer receipts from a bank account, and deposited them into a shared
service account, which was then automatically swept to CLUSI and then
CoreLogic. This was LeadClickʹs final repayment: When it ceased operations in
September of 2011, it still owed CoreLogic approximately $8 million, and owed
its sister subsidiary CLUSI approximately $8 million under an old promissory
note.3
II. The Proceedings Below
On November 7, 2011, the FTC and the State filed a complaint in this
action against LeanSpa, NutraSlim, LLC, NutraSlim U.K., Ltd., and Boris
Mizhen, LeanSpaʹs owner, for unfair trade practices. The FTC and the State
learned of LeadClickʹs involvement in LeanSpaʹs business during discovery, and
amended their complaint on July 26, 2012 to include LeadClick and its former
officer, Richard Chiang, as defendants and Angelina Strano, Mizhenʹs wife, as a
relief defendant. The complaint was subsequently amended on August 28, 2013
3 CLUSIʹs predecessor entered into a loan agreement and promissory note
with LeadClick in 2008, before LeadClick became its wholly‐owned subsidiary. That
note remained partially outstanding at the time LeadClick ceased operations.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page17 of 50
‐ 18 ‐
by the FTC to add CoreLogic as a relief defendant. The State did not join the FTC
in asserting a claim against CoreLogic. All claims except for those against
LeadClick and CoreLogic were resolved in stipulated orders before the district
court.
LeadClick and Chiang moved to dismiss, claiming immunity under
Section 230 of the CDA. The district court denied the motion on January 29,
2013, concluding that LeadClick had not established immunity. On May 5, 2014,
plaintiffs moved for summary judgment against LeadClick and CoreLogic. On
the same day, LeadClick and CoreLogic separately moved for summary
judgment.
On March 5, 2015, the district court granted plaintiffsʹ motion and
denied defendantsʹ motions. As part of that decision, the district court required
LeadClick to disgorge all proceeds that it received from LeanSpa as payment for
affiliate marketing and required CoreLogic to disgorge $4.1 million, which was
the amount that LeadClick transferred to CoreLogic in August 2011. The district
court entered final judgment in favor of plaintiffs on March 6, 2015. LeadClick
and CoreLogic filed timely notices of appeal.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page18 of 50
under S
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‐ 19 ‐
SCUSSION
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Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page19 of 50
‐ 20 ‐
45(a)(1) and (a)(2).4 The FTC Act is drafted broadly to include not only
traditional anti‐trust violations but also ʺpractices that the Commission
determines are against public policy for other reasons.ʺ FTC v. Indiana Fedʹn of
Dentists, 476 U.S. 447, 454 (1986). ʺIt is important to note the generality of [this]
standard[] of illegality; the proscriptions in [Section] 5 are flexible, ʹto be defined
with particularity by the myriad of cases from the field of business.ʹʺ FTC v.
Colgate‐Palmolive Co., 380 U.S. 374, 384‐85 (1965) (quoting FTC v. Motion Picture
Advert. Serv. Co., 344 U.S. 392, 394 (1953)).
The FTC and the State allege that LeadClick is liable under Section 5
because it engaged in a deceptive act or practice.5 ʺTo prove a deceptive act or
practice under § 5(a)(1), the FTC must show three elements: ʹ[1] a representation,
4 CUTPA provides that ʺ[n]o person shall engage in unfair methods of
competition and unfair or deceptive acts or practice in the conduct of any trade or
commerce.ʺ C.G.S.A. § 42‐110b(a). The statute is interpreted consistently with the
federal statute. Id. 42‐110b(b) (ʺIt is the intent of the legislature that in construing
subsection (a) of this section, the commissioner and the courts of this state shall be
guided by interpretations given by the Federal Trade Commission and the federal
courts to Section 5(a)(1) of the [FTC] Act.ʺ); 42‐110(c) (noting that regulations may be
established provided ʺ[s]uch regulations shall not be inconsistent with the rules,
regulations and decisions of the federal trade commission [sic] and the federal courts in
interpreting the provisions of the [FTC] Act.ʺ). Accordingly, although we discuss only
the alleged violation of the FTC Act below, the analysis applies with equal force to the
alleged CUTPA violation.
5 The FTC and State of Connecticut do not assert that that LeadClick engaged in
an unfair trade practice.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page20 of 50
‐ 21 ‐
omission, or practice, that [2] is likely to mislead consumers acting reasonably
under the circumstances, and [3], the representation, omission, or practice is
material.ʺ FTC v. Verity Intʹl, Ltd., 443 F.3d 48, 63 (2d Cir. 2006) (quoting In re
Cliffdale Assocs., Inc., 103 F.T.C. 110, 165 (1984)). ʺThe deception need not be
made with intent to deceive; it is enough that the representations or practices
were likely to mislead consumers acting reasonably.ʺ Id. The deceptive acts or
practices must be ʺlikely to cause substantial injury to consumers which is not
reasonably avoidable by consumers themselves and not outweighed by
countervailing benefits to consumers or to competition.ʺ 15 U.S.C. § 45(n).
LeadClick argues that a defendant may be held liable under Section
5(a) for deceptive acts or practices only when a defendant creates the deceptive
content or when that content is attributable to the defendant. According to
LeadClick, because it did not create the deceptive content appearing on the false
news sites, nor was that content attributable to it, it cannot be held liable under
the FTC Act. As discussed below, we disagree that the FTC Act requires that a
defendant create deceptive content to be liable. Instead, we hold that under the
FTC Act, a defendant may be held liable for engaging in deceptive practices or
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page21 of 50
‐ 22 ‐
acts if, with knowledge of the deception, it either directly participates in a
deceptive scheme or has the authority to control the deceptive content at issue.
Both the Ninth and Eleventh Circuits have recognized that a
defendant may be liable for deceptive content even if it was not solely
responsible for a deceptive scheme. In FTC v. Neovi, Inc., the Ninth Circuit held a
check processing company liable under the FTC Act for creating and delivering
fraudulent checks drawn by its customers without proper verification, where the
company had ʺreason to believe that a vast number of checks were being drawn
on unauthorized accounts.ʺ 604 F.3d 1150, 1157 (9th Cir. 2010). The defendant
argued that it could not be held liable, because its users, and not the defendant
itself, created the deceptive checks. Id. at 1155. The Ninth Circuit rejected this
argument, noting that ʺa single violation of the [FTC] Act may have more than
one perpetrator,ʺ id., and ʺbusinesses can cause direct consumer harm as
contemplated by the FTC Act in a variety of ways,ʺ id. at 1156. The check
processing company, through its own actions, ʺengaged in a practice that
facilitated and provided substantial assistance to a multitude of deceptive
schemes.ʺ Id. at 1157. The Court recognized that ʺthe creation and distribution of
most any good is subject to a host of sequential stepsʺ and that while ʺ[s]ome of
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page22 of 50
‐ 23 ‐
those steps involve the contribution of independent causal agents, . . . those
contributions do not magically erase the role of the aggregator and distributer of
the goods.ʺ Id. at 1155. Rather, because the check processing company ʺengaged
in behavior that was, itself, injurious to consumers,ʺ it was liable under the FTC
Act. Id. at 1157
Similarly, in FTC v. IAB Marketing Associates, LP, the Eleventh Circuit
considered the likelihood that the FTC would succeed in an action against a
company selling trade association memberships. 746 F.3d 1228 (11th Cir. 2014).
The company hired third‐party telemarketers who misrepresented that the
memberships were ʺfunctionally equivalent to major medical insurance.ʺ Id. at
1231. The Court found ʺno meritʺ in the argument that the company could not be
held liable for misrepresentations ʺmade by various independent contractors it
engaged to sell its products.ʺ Id. at 1232‐33.
The defendants argued that they could not be held liable for the
misrepresentations made by the third‐party telemarketers without ʺdirect
participation in, knowledge of, and the ability to control the telemarketersʹ
behavior.ʺ Id. at 1233. This test had previously been applied by the Eleventh and
Seventh Circuits to determine when an individual employee may be held liable
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page23 of 50
‐ 24 ‐
for the conduct of a corporation. See FTC v. Gem Merch. Corp., 87 F.3d 466, 467‐68,
470 (11th Cir. 1996) (holding an individual liable under the FTC Act where ʺhe
was aware that salespeople made material representations to consumers to
induce sales, and he was in a position to control the salespeopleʹs behaviorʺ); FTC
v. Amy Travel Serv., Inc., 875 F.2d 564, 573 (7th Cir. 1989) (holding individuals
liable under the FTC Act for deceptive practices of a corporation where those
individuals had knowledge of the deceptive practices and participated directly in
those practices or had authority to control them).
Without deciding whether the standard for imposing liability was as
ʺdemandingʺ as to require both direct participation and authority to control, the
IAB Marketing Associates court determined that the company would be liable even
under the knowledge, participation, and control test, because it directly
participated in the scheme with knowledge and had the ability to control the
telemarketers it employed to sell its trade association memberships. IAB Mktg.
Associates, 746 F.3d at 1233. While there was no evidence in the record that the
defendants instructed the telemarketers to make material misrepresentations, the
defendants hired the third party telemarketers to sell its products with
knowledge that the telemarketers were making the misrepresentation. Id. The
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page24 of 50
‐ 25 ‐
defendants also had authority over those telemarketers, and could have, but did
not, require them to cease making the misrepresentations. Id.
We agree that a deceptive scheme violating the FTC Act may have
more than one perpetrator. We adopt the test applied by the Eleventh Circuit in
the context of an individualʹs liability for corporate deception to determine
LeadClickʹs Section 5 liability under the FTC Act: A defendant may be held
liable for deceptive practices that cause consumer harm if, with knowledge of the
deceptive nature of the scheme, he either ʺparticipate[s] directly in the practices
or acts or ha[s] authority to control them.ʺ Amy Travel Serv., 875 F.2d at 573. A
defendant directly participates in deception when it engages in deceptive acts or
practices that are injurious to customers with at least some knowledge of the
deception. 15 U.S.C. § 45(a) and (n). Similarly, a defendant who knows of
anotherʹs deceptive practices and has the authority to control those deceptive
acts or practices, but allows the deception to proceed, may be held liable for
engaging in a deceptive practice injurious to consumers. This is consistent with
the FTCʹs longstanding policy that an omission in certain circumstances may
constitute a deceptive or unfair practice. See Letter from Federal Trade
Commission to Hon. John D. Dingell, Chairman of the Committee on Energy and
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page25 of 50
‐ 26 ‐
Commerce (October 14, 1983), appended to Cliffdale Assocs., 103 F.T.C. at 182
(ʺThe Commission will find an act or practice deceptive if there is a
misrepresentation, omission, or other practice, that misleads the consumer acting
reasonably in the circumstances, to the consumerʹs detriment.ʺ); In the Matter of
Intʹl Harvester Co., 104 F.T.C. 949 (1984) (finding defendantʹs failure to warn
consumers of a material risk of harm created by its product would be an unfair
trade practice under Section 5).
LeadClick argues that applying a test that imposes liability based on
direct participation in or authority to control deceptive practices conflates
principal liability with aiding and abetting liability, which is foreclosed under
the FTC Act. We reject this argument.
We have not previously considered whether a defendant may be
held liable under the FTC Act for aiding and abetting anotherʹs deceptive acts or
practices. As LeadClick notes, the FTC Act does not expressly provide for aiding
and abetting liability. Cf. Central Bank of Denver, N.A. v. First Interstate Bank of
Denver, N.A., 511 U.S. 164, 177 (1994) (noting that in securities fraud context that
if ʺCongress intended to impose aiding and abetting liability . . . it would have
used the words ʹaidʹ and ʹabetʹ in the statutory textʺ); Wright v. Ernst & Young
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page26 of 50
‐ 27 ‐
LLP, 152 F.3d 169, 175 (2d Cir. 1998) (noting where Section 10(b) liability is based
on making material false representations, ʺ[a]nything short of such conduct is
merely aiding and abetting, and no matter how substantial that aid may be, it is
not enough to trigger liabilityʺ). We need not decide this issue, however, because
we conclude that a defendant acting with knowledge of deception who either
directly participates in that deception or has the authority to control the
deceptive practice of another, but allows the deception to proceed, engages,
through its own actions, in a deceptive act or practice that causes harm to
consumers. As the Ninth Circuit noted in Neovi, Inc.:
To be clear, none of this is to say that [defendant] is liable under a
theory of aiding and abetting. [Defendant] engaged in behavior that
was, itself, injurious to consumers. [Defendantʹs] business practices
might have served to assist others in illicit or deceptive schemes, but
the liability under the FTC Act that attached to [defendant] is not
mediated by the actions of those third parties. [Defendant] caused
harm through its own deeds ‐‐ in this case creating and delivering
unverified checks ‐‐ and thus § 5 of the FTC Act easily extends to its
conduct.
Neovi, Inc., 604 F.3d at 1157. A defendant may be held liable for its own acts of
deception under the FTC Act, whether by directly participating in deception or
by allowing deceptive acts or practices to occur that are within its control. This
direct liability is distinguishable from liability for merely aiding and abetting the
deceptive conduct of another.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page27 of 50
‐ 28 ‐
2. Application
LeadClick does not dispute on appeal that its affiliates engaged in
false and deceptive advertising practices. Instead, it argues that even assuming
these statements were deceptive, such deception ʺsupport[s] only imposition of
liability against the publishers who created and made the deceptive statements ‐‐
not against a wholly separate entity[, LeadClick,] that the FTC concedes did not
make the challenged statements.ʺ LeadClick Br. at 33. As discussed below, we
reject this argument and hold that LeadClick is directly liable for its own
deceptive conduct in the eAdvertising scheme. LeadClick knew that deceptive
false news sites were prevalent in its affiliate marketing network, directly
participated in the deception, and had the authority to control the deceptive
content of these fake news sites, but allowed the deceptive content to be used in
LeanSpa advertisements on its network. Accordingly, LeadClick is liable under
Section 5 of the FTC Act for engaging in deceptive acts or practices.
i. LeadClick Knew of the Deception
LeadClick knew that (1) the use of false news pages was prevalent in
affiliate marketing, and (2) its own affiliate marketers were using fake news sites
to market LeanSpaʹs products:
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page28 of 50
‐ 29 ‐
An eAdvertising division employee noted that in the summer of 2010, fake
news sites were ʺfairly common,ʺ J. App. at 158a‐59a;
Another employee testified in his deposition that during his time at
LeadClick, ʺeveryone was using ʹem,ʺ id. at 235;
LeadClick employees occasionally discussed fake article pages, fake news
pages, and news style pages among themselves and with affiliates and
merchant clients;
A LeadClick employee testified that he saw ʺmanyʺ false news sites from
LeadClick affiliates that contained false information, J. App. at 387a, 389a;
and
LeadClick was even familiar with the specific content of these sites, and
employees occasionally referred to ʺstep 1 and step 2ʺ pairing typical of
fake news sites, see J. App. at 157a, 746a, 800a.
ii. Direct Participation in the Deceptive Practices
In addition to this knowledge, LeadClick participated in the
deceptive scheme through the following acts:
A LeadClick employee ʺscoutedʺ fake news websites to recruit potential
affiliates for the LeanSpa account;
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page29 of 50
‐ 30 ‐
LeadClick employees required alterations to the content of its affiliatesʹ
fake news pages by instructing them to revise their pages to comply with
explicit directives from LeanSpa;
A LeadClick employee instructed an affiliate to check that his fake news
site was not ʺcrazy [misleading]ʺ and advising him not to remove the
reporter photograph, but to ʺjust add advertorial,ʺ J. App. at 230a‐31a;
LeadClick employees advised affiliates on the content to include in their
pages to increase consumer traffic, see J. App. at 788a (telling an affiliate
ʺ[i]t is much more realistic if you say that someone lost 10‐12 lbs[.] in 4
weeks rather than saying anything more than thatʺ); and
LeadClick purchased banner advertisement space on genuine news sites to
resell that space to affiliates running fake news pages to ʺgenerat[e] quality
traffic in very lucrative placements.ʺ J. App. at 714a.
Considered together, this conduct clearly demonstrates LeadClickʹs
direct participation in the deceptive advertising scheme. LeadClickʹs own
actions ‐‐ recruiting and paying affiliates who used fake news sites for generating
traffic, managing those affiliates, suggesting substantive edits to fake news
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page30 of 50
‐ 31 ‐
pages, and purchasing banner space for fake news sites on legitimate news
sources ‐‐ caused significant harm to consumers.
iii. LeadClickʹs Authority to Control the Deceptive
Practices or Acts
LeadClick was paid by LeanSpa to recruit and manage a network of
affiliates who would advertise LeanSpaʹs products. As established above,
LeadClick knew that some of its affiliates were using fake news sites to advertise
LeanSpa products. As the manager and orchestrator of the affiliate marketing
scheme, LeadClick had the authority to control the deceptive practices of
affiliates that joined its network:
LeadClick had the ultimate authority to review and approve or disapprove
of an affiliate using a fake news site;
LeadClick permitted affiliates using fake news sites to join its network and
refer customers to LeanSpa, and it paid its affiliates with fake news sites
for generating actions; and
LeadClick employees affirmatively approved the use of fake news sites by
telling a potential affiliate that ʺNews Style landers are totally fine,ʺ
J. App. at 761a, and explaining to a potential merchant client that ʺ[a]ll of
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page31 of 50
‐ 32 ‐
[its] traffic would be through display on fake article pages,ʺ Id. at 750a
(emphasis added);
As the manager of the affiliate network, LeadClick had a responsibility to ensure
that the advertisements produced by its affiliate network were not deceptive or
misleading. By failing to do so and allowing the use of fake news sites on its
network, despite its knowledge of the deception, LeadClick engaged in a
deceptive practice for which it may be held directly liable under the FTC Act.
As discussed above, LeadClick is not liable here merely because it
aided and abetted its affiliatesʹ deception. Rather, its liability arises from its own
deceptive practices: directly participating in the deceptive scheme by recruiting,
managing, and paying a network of affiliates to generate consumer traffic
through the use of deceptive advertising and allowing the use of deceptive
advertising where it had the authority to control the affiliates participating in its
network. See Neovi, 604 F.3d at 1157 n.5 (rejecting similar argument and noting
that defendantʹs ʺactions caused consumer harm; it did not merely aid or abet
others who caused consumer harmʺ).
Moreover, LeadClick is directly liable regardless of whether it
intended to deceive consumers ‐‐ it is enough that it orchestrated a scheme that
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page32 of 50
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t.
y
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page33 of 50
‐ 34 ‐
through an amendment to the CDA, had a different objective: ʺ[T]o preserve the
vibrant and competitive free market that presently exists for the Internet and
other interactive computer services, unfettered by Federal or State regulation.ʺ
47 U.S.C. § 230(b)(2); see also Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th
Cir. 1997) (ʺCongress recognized the threat that tort‐based lawsuits pose to
freedom of speech in the new and burgeoning Internet medium.ʺ).
The amendment assuaged Congressional concern regarding the
outcome of two inconsistent judicial decisions applying traditional defamation
law to internet providers. 141 Cong. Rec. H8469‐70 (daily ed. Aug. 4, 1995
(statement of Rep. Cox). The first held that an interactive computer service
provider could not be liable for a third partyʹs defamatory statement, Cubby, Inc.
v. CompuServe, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991), but the second imposed
liability where a service provider filtered its content in an effort to block obscene
material, Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL
323710, at *4 (N.Y. Sup. Ct. May 24, 1995). The amendment was intended to
overrule Stratton and provide immunity for ʺinteractive computer service[s]ʺ that
which have protected telephone users to new telecommunications devices.ʺ 141 Cong.
Rec. S1953 (daily ed. Feb. 1, 1995) (statement of Sen. Exon).
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page34 of 50
‐ 35 ‐
make ʺgood faithʺ efforts to block and screen offensive content. 47 U.S.C.
§ 230(c).
To accomplish that goal, Section 230 provides that ʺ[n]o provider or
user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider.ʺ
47 U.S.C. § 230(c)(1).
We have had limited opportunity to interpret Section 230. Other
circuits, however, have recognized that Section 230 immunity is broad. See, e.g.,
Jones v. Dirty World Entmʹt Recordings LLC, 755 F.3d 398, 406‐07 (6th Cir. 2014)
(ʺclose cases . . . must be resolved in favor of immunityʺ (quoting Fair Hous.
Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1174 (9th Cir.
2008) (en banc))); Almeida v. Amazon.com, 456 F.3d 1316, 1321 (11th Cir. 2006)
(ʺThe majority of federal circuits have interpreted the CDA to establish broad
federal immunity to any cause of action that would make service providers liable
for information originating with a third‐party user of the service.ʺ (internal
quotation marks omitted)); id. at n.3 (collecting cases). In applying the statute,
courts have ʺbroken [it] down into three component parts,ʺ finding that ʺ[i]t
shields conduct if the defendant (1) ʹis a provider or user of an interactive
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page35 of 50
‐ 36 ‐
computer service, (2) the claim is based on information provided by another
information content provider and (3) the claim would treat [the defendant] as the
publisher or speaker of that information.ʹʺ Jane Doe No. 1 v. Backpage.com, LLC,
817 F.3d 12, 19 (1st Cir. 2016) (quoting Universal Commcʹn Sys., Inc. v. Lycos, Inc.,
478 F.3d 413, 418 (1st Cir. 2007)); see also Jones, 755 F.3d at 409; Zeran, 129 F.3d at
330.
On appeal, LeadClick argues that it is immune under Section 230
because it meets these elements. We discuss each, in turn.
i. Provider of an Interactive Computer Service
ʺThe term ʹinteractive computer serviceʹ means any information
service, system, or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically a service or
system that provides access to the Internet and such systems operated or services
offered by libraries or educational institutions.ʺ 47 U.S.C. § 230(f)(2).
Courts typically have held that internet service providers, website
exchange systems, online message boards, and search engines fall within this
definition. See, e.g., Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1175 (9th Cir.
2009) (concluding that malware provider who blocked plaintiffʹs software as
ʺpotentially maliciousʺ was interactive computer service provider because it
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page36 of 50
‐ 37 ‐
provided service to consumers by screening for malicious content); Chicago
Lawyersʹ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671
(7th Cir. 2008), as amended (May 2, 2008) (applying definition to Craigslist, a
classified advertisements website); Universal Commcʹns Sys. v. Lycos, Inc., 478 F.3d
413, 419 (1st Cir. 2007) (applying definition to internet message board operator);
Zeran, 129 F.3d at 329 (ʺAOL is just such an interactive computer service.ʺ);
Murawski v. Pataki, 514 F. Supp. 2d 577, 591 (S.D.N.Y. 2007) (concluding Ask.com
is an interactive service provider because it is a search engine).
ii. Information Content Provider
As noted above, the statute requires that the claim be based on
content provided by another information content provider. This grant of
immunity applies only if the interactive service provider is not also an
ʺinformation content providerʺ of the content which gives rise to the underlying
claim. ʺInformation content providerʺ is defined to include ʺany person or entity
that is responsible, in whole or in part, for the creation or development of
information provided through the Internet or any other interactive computer
service.ʺ 47 U.S.C. § 230(f)(3). This definition ʺcover[s] even those who are
responsible for the development of content only in part.ʺ FTC v. Accusearch Inc.,
570 F.3d 1187, 1197 (10th Cir. 2009) (quoting Universal Commcʹn Sys., Inc. v. Lycos,
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page37 of 50
‐ 38 ‐
Inc., 478 F.3d 413, 419 (1st Cir. 2007)). A defendant, however, will not be held
responsible unless it assisted in the development of what made the content
unlawful. Id. at 1201. For example, a defendant who paid researchers to uncover
confidential phone records protected by law, and then provided that information
to paying customers, fell within the definition because he did not merely act as a
neutral intermediary, but instead ʺspecifically encourage[d] development of
what [was] offensive about the content.ʺ Id. at 1199; see also Roommates.com, 521
F.3d at 1167‐68 (holding defendant liable for developing content by ʺnot merely
. . . augmenting the content generally, but . . . materially contributing to its
alleged unlawfulnessʺ when it required subscribers to provide information
which enabled users of site to unlawfully discriminate in selecting a roommate).
iii. Whether the Claim Treats the Defendant as the
Publisher or Speaker of Content Provided by Another
ʺAt its core, § 230 bars ʹlawsuits seeking to hold a service provider
liable for its exercise of a publisherʹs traditional editorial functions ‐‐ such as
deciding whether to publish, withdraw, postpone or alter content.ʹʺ Dirty World
Entmʹt Recordings LLC, 755 F.3d at 407 (quoting Zeran, 129 F.3d at 330). Section
230(c)(1) provides that ʺno provider of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page38 of 50
‐ 39 ‐
information content providerʺ but it does not define the terms ʺpublisher or
speaker.ʺ 47 U.S.C. § 230(c)(1).
In Barnes v. Yahoo!, Inc., the Ninth Circuit addressed ʺhow to
determine when, for purposes of this statute, a plaintiffʹs theory of liability
would treat a defendant as a publisher or speaker of third‐party content.ʺ 570
F.3d 1096, 1101 (9th Cir. 2009), as amended (Sept. 28, 2009). The Ninth Circuit
considered traditional dictionary definitions of publisher, including ʺthe
reproducer of a work intended for public consumptionʺ and ʺone whose business
is publication.ʺ Id. at 1102 (quoting Websterʹs Third New International
Dictionary 1837 (Philip Babcock Gove ed., 1986)). In deciding whether the claim
at issue sought to hold the defendant liable as a publisher or speaker, the Court
noted that ʺwhat matters is whether the cause of action inherently requires the
court to treat the defendant as the ʹpublisher or speakerʹ of content provided by
another. To put it another way, courts must ask whether the duty that the
plaintiff alleges the defendant violated derives from the defendantʹs status or
conduct as a ʹpublisher or speaker.ʹʺ Id. at 1102.
In Accusearch, Inc., the only other case considering the application of
Section 230 immunity to liability arising under Section 5 of the FTC Act, the
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page39 of 50
‐ 40 ‐
Tenth Circuit concluded that the defendant could not be immune for its payment
to researchers to uncover confidential phone records and subsequent publishing
of that information because it was an information content provider of the
offensive conduct. 570 F.3d at 1197. The majority concluded that the defendant
was not immune because liability was based on the defendantʹs own content
rather than the content of another, while the concurrence was of the view that the
defendant was not immune because liability was premised not on content but on
its conduct. Id. at 1197, 1205.
2. Application
LeadClick argues that it should be immune from liability under the
FTC Act and CUTPA because it was an interactive computer service provider, it
did not publish deceptive content, and the plaintiffs seek to hold it liable for the
deceptive statements of its affiliates. We disagree and conclude that LeadClick is
not entitled to Section 230 immunity because it is an information content
provider with respect to the deception at issue and because LeadClick is liable
under the FTC Act for its own deceptive acts or practices, rather than for
publishing content created by another.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page40 of 50
‐ 41 ‐
i. Provider of an Interactive Computer Service
As an initial matter, we are doubtful that LeadClick is an ʺinteractive
service provider.ʺ The definition is indeed broad, but we are not convinced that
LeadClick provides computer access in the sense of an internet service provider,
website exchange system, online message board, or search engine. LeadClick
contends that it is covered because it ʺenabled computer access by multiple users
to a computer serverʺ by routing consumers from its affiliatesʹ webpages to
LeanSpaʹs websites via the HitPath server. LeadClick Reply Br. at 4.
But LeadClick cites no case law applying the definition of
ʺinteractive service providerʺ in a similar context, where the defendantʹs
provision of services (in this case, consumer access to LeadClickʹs HitPath
computer server) was wholly unrelated to its potential liability under the statute.
Moreover, the ʺserviceʺ LeadClick purportedly provided ‐‐ access to the HitPath
server ‐‐ is not the type of service that Congress intended to protect in granting
immunity. The statute aims to promote the continued development of the
internet, through ʺthe availability of educational and informational resources to
our citizensʺ and to ʺoffer a forum for a true diversity of political discourse,
unique opportunities for cultural development, and myriad avenues for
intellectual activity.ʺ 47 U.S.C. § 230(a)(1), (a)(3); see also id. at (b)(1), (b)(3)
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page41 of 50
‐ 42 ‐
(noting that it is the policy of the United States ʺto promote the continued
development of the Internet and other interactive computer servicesʺ and to
ʺmaximize user control over what information is received by individuals,
families, and schools who use the Internet and other interactive computer
servicesʺ). The computer access service LeadClick actually provided, routing
customers through the HitPath server before reaching LeanSpaʹs website, was
invisible to consumers and did not benefit them in any way. Its purpose was not
to encourage discourse but to keep track of the business referred from its affiliate
network.
In any event, we need not reach this issue because we conclude, as
described below, that LeadClick is an information content provider with respect
to the content at issue and that LeadClick is liable for its own content and not
merely because it was the ʺpublisher or speakerʺ of deceptive content provided
by its affiliates.
ii. Information Content Provider
LeadClick is not entitled to immunity because it participated in the
development of the deceptive content posted on fake news pages. As discussed
in greater detail above, LeadClick recruited affiliates for the LeanSpa account
that used false news sites. LeadClick paid those affiliates to advertise LeanSpa
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page42 of 50
‐ 43 ‐
products online, knowing that false news sites were common in the industry.
LeadClick employees occasionally advised affiliates to edit content on affiliate
pages to avoid being ʺcrazy [misleading],ʺ J. App. at 231a, and to make a report
of alleged weight loss appear more ʺrealisticʺ by reducing the number of pounds
claimed to have been lost, id. at 788a. LeadClick also purchased advertising
banner space from legitimate news sites with the intent to resell it to affiliates for
use on their fake news sites, thereby increasing the likelihood that a consumer
would be deceived by that content.
LeadClickʹs role in managing the affiliate network far exceeded that
of neutral assistance. Instead, it participated in the development of its affiliatesʹ
deceptive websites, ʺmaterially contributing to [the contentʹs] alleged
unlawfulness.ʺ Roommates.com, LLC, 521 F.3d at 1168. Accordingly, LeadClick is
an information content provider with respect to the deceptive content at issue
and is not entitled to immunity under Section 230.
iii. The Claim does not treat LeadClick as a Publisher or
Speaker of Anotherʹs Content
LeadClick cannot establish the third element necessary for immunity
because it is not being held liable as a publisher or speaker of anotherʹs content.
Rather, as discussed above, LeadClick is being held accountable for its own
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page43 of 50
‐ 44 ‐
deceptive acts or practices ‐‐ for directly participating in the deceptive scheme by
providing edits to affiliate webpages, for purchasing media space on real news
sites with the intent to resell that space to its affiliates using fake news sites, and
because it had the authority to control those affiliates and allowed them to
publish deceptive statements. Accordingly, because LeadClickʹs Section 5
liability is not derived from its status as a publisher or speaker, imposing liability
under Section 5 does not ʺinherently require[] the court to treat the [LeadClick] as
the ʹpublisher or speakerʹʺ of its affiliatesʹ deceptive content, and Section 230
immunity should not apply. See Barnes, 570 F.3d at 1101‐02; see also Accusearch,
570 F.3d at 1204‐05 (Tymkovitch, J., concurring) (noting that ʺthe FTC sought and
ultimately held [defendant] liable for its conduct rather than for the content of the
information is was offering on [its] websiteʺ and arguing that there should be no
immunity because ʺSection 230 only immunizes publishers or speakers for the
content of the information from other providers that they make publicʺ).
II. CoreLogicʹs Liability as Relief Defendant
CoreLogic appeals from the district courtʹs finding that it must
disgorge money it received from LeadClick in the August 30 Transfer. As
described below, the district court erred in holding CoreLogic liable for
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page44 of 50
LeadCli
to repay
A
litigatio
dispute
2010) (q
defenda
matter o
owners
relief.ʺ
defenda
ill‐gotte
v. Cavan
only req
she lack
omitted
ickʹs fines
yment of it
A. Appl
ʺA re
on in a sub
e.ʹʺ Commo
quoting SE
ant ʺis a ba
of the litig
hip interes
SEC v. Cav
ʺFede
ant] not ac
en funds; a
nagh (Cava
quire disgo
ks a legitim
d).
as a relief
ts prior ad
licable Law
elief defend
ordinate o
odity Future
EC v. Colello
ank or trus
gation. Col
st in the pr
vanagh (Ca
eral courts
ccused of w
and (2) doe
anagh I), 15
orgement
mate claim
defendant
dvances to
w
dant is a p
or possesso
es Trading
o, 139 F.3d
stee, which
ello, 139 F.
roperty, bu
avanagh II),
s may orde
wrongdoin
es not have
55 F.3d 129
of the asse
.ʺ Walsh, 6
‐ 45 ‐
t, because
LeadClick
person who
ory capacit
Commʹn v
d 674, 676 (
h has only
3d at 677.
ut ʺmay be
, 445 F.3d
er equitabl
ng . . . wher
e a legitim
9, 136 (2d C
ets of a reli
618 F.3d at
CoreLogic
k.
o ʹholds th
ty as to wh
v. Walsh, 61
(9th Cir. 19
a custodia
A relief d
e joined to
105, 109 n.
le relief ag
re that per
mate claim t
Cir. 1998).
ief defenda
t 226 (inter
c had a leg
e subject m
hich there
18 F.3d 218
998)). The
al claimʺ to
defendant h
aid the rec
.7 (2d Cir.
ainst a [rel
rson: (1) h
to those fu
ʺDistrict c
ant upon a
rnal quotat
gitimate cla
matter of th
is no
8, 225 (2d C
typical re
o the subje
has no
covery of
2006).
lief
has receive
unds.ʺ S.E
courts may
a finding th
tion marks
aim
he
Cir.
lief
ect
d
.C.
y
hat
s
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page45 of 50
‐ 46 ‐
While we have not ʺdeveloped explicit guidelines for what qualifies
as a legitimate claim sufficient to immunize . . . property from disgorgement,ʺ we
have recognized that ʺrelief defendants who have provided some form of
valuable consideration in good faith . . . are beyond the reach of the district
courtʹs disgorgement remedy.ʺ Id. at 226 (internal quotation marks omitted). An
outstanding loan from a relief defendant constitutes valuable consideration,
giving rise to a ʺlegitimate claimʺ to repayment of the outstanding amount of
principal and accrued interest. See Janvey v. Adams, 588 F.3d 831, 835 (5th Cir.
2009) (debtor‐creditor relationship ʺconstitutes a sufficient legitimate ownership
interest to preclude treating [defendants] as relief defendantsʺ). A gratuitous
transfer, however, without the payment of consideration, does not give rise to a
legitimate claim. See Cavanagh I, 155 F.3d at 137 (concluding that neither relief
defendant had a legitimate claim to property received as a gift, because to hold
otherwise, ʺwould allow almost any defendant to circumvent the SECʹs power to
recapture fraud proceeds, by the simple procedure of giving [property] to friends
and relatives, without even their knowledgeʺ).
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page46 of 50
B
on these
$4.1 mil
gratuito
accordin
disagre
intercom
district
because
disgorg
agreem
relief de
conclud
constitu
services
purpose
B. Appl
The f
e facts, Co
llion. The
ous distrib
ngly, was
es, contend
mpany loa
court conc
e there was
gement. W
ment was re
efendant b
de that und
uted ʺvalua
Both
s system, C
es, CoreLo
lication
facts here a
oreLogic ha
FTC argue
bution beca
not in exch
ding that t
an, implem
cluded tha
s no forma
We disagree
equired in
because it h
der these u
able consid
parties ag
CoreLogic
ogic and Le
are undisp
ad a legitim
es that this
ause it lack
hange for
this transa
mented as p
at CoreLog
al loan agr
e with the
this contex
had a legit
undisputed
derationʺ e
gree that af
paid Lead
eadClick d
‐ 47 ‐
puted. Inst
mate claim
s transfer s
ked a form
valuable c
ction was
part of its s
gic had no
eement be
district co
xt and hold
timate inte
d facts, Co
entitling it
fter CoreLo
dClickʹs acc
documente
tead, the p
m to the Au
should be
mal loan agr
considerati
the repaym
shared serv
legitimate
etween the
urtʹs concl
d that Cor
erest in the
reLogicʹs a
to repaym
ogic imple
counts pay
ed the adv
parties disp
ugust 30 Tr
characteri
reement an
ion. CoreL
ment of an
vices agre
e claim to t
e parties an
lusion that
reLogic wa
e transferre
advances t
ment from
emented th
yable. For
ances as in
pute wheth
ransfer of
ized as a
nd,
Logic
n outstand
ement. Th
the funds
nd ordered
t a formal
as not a pro
ed funds.
to LeadCli
LeadClick
he shared
accountin
ntercompa
her
ing
he
d
loan
oper
We
ck
k.
ng
any
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page47 of 50
‐ 48 ‐
balances. The parties intended these advances to be repaid automatically from
LeadClickʹs revenue once the accounts receivable function was transitioned to
CoreLogic, six months after the transition of accounts payable. Once Core Logic
transitioned LeadClickʹs accounts receivable system to the shared services
program, LeadClick did in fact begin to repay these amounts through an
automatic diversion of cash receipts deposited in the shared services account to
CoreLogic.7 LeadClick repaid a total of $8.2 million of its advance balance to
CoreLogic through the automated transfers. CoreLogic held a right to
repayment under these circumstances. It did not merely hold the transferred
funds in a custodial capacity. See Cavanagh II, 445 F.3d at 109 n.7; Colello, 139 F.3d
at 677.
The district court reasoned that the advances constituted gratuitous
transfers that could not give rise to a legitimate claim to repayment because there
was no formal debtor‐creditor relationship in place between LeadClick and
CoreLogic. But, as Amici Curiae point out, the lack of a formal agreement is not
surprising in the shared services context. The FTCʹs own expert acknowledged
7 The funds were first swept automatically into an account held by CLUSI,
LeadClickʹs sister subsidiary, which subsequently transferred the funds into
CoreLogicʹs central treasury, pursuant to the shared services agreement
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page48 of 50
‐ 49 ‐
that it is not customary to use promissory notes or charge interest on
intercompany advances made pursuant to a shared services program. Requiring
such documentation ʺis incompatible with the very purpose of shared services:
streamlining operations and increasing efficiency by reducing excess
paperwork.ʺ Amici Br. at 6. An interest charge would also be artificial, because
the companies were consolidated under general accounting principles for public
companies. Under these circumstances, the lack of a formal loan agreement does
not create suspicion that the transactions were a sham.
Even without the formalities of an armʹs‐length loan agreement, it is
undisputed that CoreLogic advanced funds to LeadClick, both parties intended
these advances to be repaid, and the August 30 Transfer reduced the outstanding
intercompany balance. Under these facts, CoreLogicʹs claim to the August 30
Transfer was therefore legitimate.8 Accordingly, CoreLogic was not a proper
relief defendant, and the district court erred in ordering it to disgorge the funds
it received from LeadClick.
8 Similarly, CoreLogicʹs claim is not undermined by the fact that
LeadClickʹs ability to repay depended upon its future business performance.
Repayment of an uncollateralized loan based on a borrowerʹs income generally depends
upon the borrowerʹs ability to generate revenue.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page49 of 50
‐ 50 ‐
CONCLUSION
For the reasons set forth above, the judgment of the district court
imposing liability on the defendants is AFFIRMED with respect to LeadClick
and REVERSED with respect to CoreLogic, and we REMAND with instructions
to the district court to enter judgment in favor of CoreLogic.
Case 15-1014, Document 184-1, 09/23/2016, 1869384, Page50 of 50 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-15-13027/USCOURTS-ca11-15-13027-0/pdf.json | [
[
"Geno Rolle",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13027
Non-Argument Calendar
________________________
D.C. Docket No. 9:09-cr-80094-KLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENO ROLLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 3, 2016)
Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
USCA11 Case: 15-13027 Date Filed: 03/03/2016 Page: 1 of 3
2
Geno Rolle, a federal prisoner proceeding pro se, appeals from the district
court’s order denying his motion to correct a “clerical error,” ostensibly filed
pursuant to Rule 36 of the Federal Rules of Criminal Procedure. Rolle, who was
convicted in 2009 of illegal re-entry of a deported alien under 8 U.S.C. § 1326(a)
and (b)(2), argues that the motion, which the district court construed as an
unauthorized successive motion to vacate pursuant to 28 U.S.C. § 2255, was not a
request to vacate the conviction, but a request to correct the indictment, which he
contends incorrectly charged him with both entry and attempting to enter.
Pursuant to § 2255, a prisoner in federal custody may move the court that
imposed his sentence to vacate, set aside, or correct the sentence if it was imposed
in violation of federal constitutional or statutory law, was imposed without proper
jurisdiction, is in excess of the maximum authorized by law, or is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a). However, when a prisoner previously
has filed a § 2255 motion to vacate, he must apply for and receive permission from
this Court before filing a successive § 2255 motion. Id. §§ 2244(b)(3), 2255(h).
Rolle’s motion, which explicitly requested that the district court vacate his
sentence, was more aptly construed as a § 2255 motion to vacate. Therefore, as
Rolle already had filed a prior § 2255 motion that was denied on the merits, the
district court did not err in denying the instant motion as successive and
unauthorized by this Court. See McIver v. United States, 307 F.3d 1327, 1329
USCA11 Case: 15-13027 Date Filed: 03/03/2016 Page: 2 of 3
3
(11th Cir. 2002) (reviewing de novo the dismissal of a § 2255 motion as second or
successive).
AFFIRMED.
USCA11 Case: 15-13027 Date Filed: 03/03/2016 Page: 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-92-05219/USCOURTS-ca10-92-05219-0/pdf.json | [
[
"GPM Gas Corporation",
"Amicus Curiae"
],
[
"Koch Oil Company",
"Appellant"
],
[
"National Association of Royalty Owners",
"Amicus Curiae"
],
[
"Oklahoma Chapter",
"Amicus Curiae"
],
[
"Phillips Petroleum Company",
"Amicus Curiae"
],
[
"James F. Quinlan",
"Appellee"
],
[
"Texaco Trading and Transportation",
"Amicus Curiae"
]
] | Robert L. Boecker
Clerk
UNITED STATES COURT OF APPEALS
Tenth Circuit
Office of the Clerk
C404 United States Courthouse
Denver, Colorado 80294
(303) 844-3157
May 2, 1994 '
Patrick Fisher
Chief Deputy
TO: ALL RECIPIENTS OF THE CAPTIONED OPINION
RB: 92-5219, 92-5223, Quinlan v. Koch Oil Co.
Filed April 12, 1994 by Judge Baldock
Please be advised of the following corrections to the
captioned opinion:
Wichita is incorrectly spelled 11Witchita 11 on the
caption page.
Attorney Sam T. Allen, as counsel for the plaintiffappellee/cross-appellant should read Sam T. Allen, IV.
Please make these corrections to your copy.
Very truly yours,
ROBERT L. HOECKER, Clerk
By:~~&-y}~v-J
Barbara Schermerhorn
Deputy Clerk
Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 1
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
APR 1 ?. 1~W4
______________ ___;;; ROBERT 4. HOECKER c~~-~,.:
JAMES F. QUINLAN,
Plaintiff-Appellee/
Cross-Appellant,
vs.
KOCH OIL COMPANY, a division
of Koch Industries, Inc.,
Defendant-Appellant/
Cross-Appellee,
)
)
)
)
)
)
)
)
)
)
)
)
PHILLIPS PETROLEUM COMPANY; GPM )
GAS CORPORATION; TEXACO TRADING )
AND TRANSPORTATION, INC., )
)
Amicus Curiae, )
NATIONAL ASSOCIATION OF ROYALTY )
OWNERS; OKLAHOMA CHAPTER OF THE )
NATIONAL ASSOCIATION OF ROYALTY )
OWNERS, )
)
Movant-Amicus Curiae. )
Nos. 92-5219
92-5223
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 90-C-295-B)
Kelley D. Sears, Koch Industries, Inc., Witchita, Kansas (Cathy A.
Ervin, Koch Industries, Inc., Witchita, Kansas, Stephen R. Clark
of McCor.mick, Andrew & Clark, Tulsa, Oklahoma, with him on the
brief), for Defendant-Appellant/Cross-Appellee.
Sam T. Allen of Loeffler, Allen & Ham, Sapulpa, Oklahoma, for
Plaintiff-Appellee/Cross-Appellant.
Randle G. Jones, Texaco Trading and Transportation, Inc., New
Orleans, Louisiana, Shelley Himel, Phillips Petroleum Company, GPM
Gas Corporation, Oklahoma City, Oklahoma, filed an amicus curiae
Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 2
brief for Texaco Trading and Transportation, Inc., Phillips
Petroleum Company, and GPM Gas Corporation.
Robin Stead of Stead & Associates, Norman, Oklahoma, filed an
amicus curiae brief for the National Association of Royalty Owners
and the Oklahoma Chapter of the National Association of Royalty
Owners.
Before ANDERSON and BALDOCK, Circuit Judges, and KANE, District
Judge.*
BALDOCK, Circuit Judge.
Defendant Koch Oil Company ("Koch") appeals the district
court's grant of partial summary judgment and the subsequent jury
verdict, both in favor of Plaintiff James F. Quinlan ("Quinlan").
Quinlan cross-appeals, claiming the district court erred by
reducing the jury's punitive damage award and erred in refusing to
award Quinlan attorney's fees. We have jurisdiction pursuant to
28 u.s.c. § 1291.
Koch, and its predecessor, Rock Island Oil ( 11Rock Island"),
began purchasing oil from an oil lease located in Creek County,
Oklahoma in 1954. Quinlan acquired a mineral interest in the oil
lease by quitclaim deed from his father on May 6, 1965. Upon
receiving a copy of this quitclaim deed in May 1965, Rock Island
sent Quinlan a transfer order to complete. On May 26, 1965,
Quinlan and his father completed and signed the transfer order,
and then returned it to Rock Island. Rock Island, and later Koch,
paid Quinlan for his oil interest from 1965 to 1971. In December
* The Honorable John L. Kane, Jr., United States District Judge for the District of Colorado, sitting by designation.
-2-
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1971, the lease was unitized and included in the Scott Dutcher
Sand Unit.
Unitization results in enhanced oil recovery by injecting
water into some wells in the unit while other wells actually
produce the oil. Because all wells do not produce oil after
unitization, a new allocation to those owning an interest in the
wells included in the unit must occur. Thus, an interest holder
will not receive the same percentage of oil produced after
unitization as the holder received from one well prior to
unitization. At unitization, the facts giving rise to the present
controversy began when Koch stopped paying Quinlan for his oil and
began placing Quinlan's oil proceeds in a suspense account.
On February 29, 1972, Koch apparently mailed notice of the
unitization with enclosed division orders to the operator of
Quinlan's oil lease. The operator was to distribute and collect
signed division orders from all leaseholders in the Creek County
oil lease. Koch did not send a division order or notice of
unitization directly to Quinlan, and if Quinlan ever received the
division order from the operator (a fact which Quinlan was unsure
of at trial), he neither signed it nor returned it to Koch.
Because Koch received no post-unitization documentation from
Quinlan, it continued placing Quinlan's oil proceeds in suspense.
Between September 1973 and December 1975, Koch did not purchase
any oil from the unit, but resumed purchasing from the unit in
January 1976. At this time, Koch mailed new division orders to a
new operator. Again, Koch received no documentation from Quinlan,
-3-
Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 4
and Koch again suspended Quinlan's money. Because Quinlan was a
poor record keeper, as he himself admitted at trial, Quinlan was
not aware that oil proceeds to which he was entitled were being
held in suspense.
In July 1988, an heir-finder group called International
Searchers, Inc. {"ISI") contacted Quinlan and informed him that it
had located assets unknown to him. ISI offered to reveal these
assets to Quinlan in exchange for fifty percent of the amount
recovered. When Quinlan was unable to determine what these assets
might be, he contracted with ISI in November 1989, and ISI
informed him of the suspense funds at Koch. Quinlan submitted a
claim to Koch, and on January 1, 1990, Koch paid Quinlan
$166,608.58 for monies suspended by Koch between 1976 and December
1 31, 1989. Later, on January 20, 1990 and April 1, 1990, Koch
tendered checks for simple interest in the amount of $25,227.52
and $52,826.95, calculated by Koch at a rate of six percent.
In the district court, Quinlan claimed he was entitled to
interest at the annual rate of twelve percent, compounded
annually, pursuant to Okla. Stat. tit. 52, § 540 D. 2 The district
- court agreed, and in an order granting Quinlan's motion for '
partial summary judgment, the district court found that Quinlan
1 Payments suspended between 1971 and 1973 in the amount of
$259.51 were paid to Quinlan in November 1990 and had apparently
been excluded from the January payment due to a clerical error.
2 In 1992, Okla. Stat. tit. 52, § 540 was re-numbered and
codified at Okla. Stat. tit. 52, § 570.10. Because this action
predated the recodification, we will cite to § 540 rather than
§ 570.10.
-4-
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was entitled to twelve percent interest compounded annually from
July 1, 1980. 3 The district court also held, as a matter of law,
that Koch owed a fiduciary duty to Quinlan to notify Quinlan of
the suspense monies. Because the court in pretrial orders had
decided Quinlan's § 540 claim for interest and had found Koch owed
Quinlan a fiduciary duty as a matter of law, the only issue before
the jury was whether Koch had breached that fiduciary duty, and
the jury found that a breach had occurred.
I.
Koch firsts argues on appeal that it was not required under
Okla. Stat. tit. 52, § 540 to pay Quinlan any interest at all on
the monies held in suspense and that it paid Quinlan six percent
interest only as a courtesy. Section 540 provides for two
different rates of interest to be paid by the purchaser {in this
case, Koch) depending upon the circumstances. If proceeds cannot
be paid because marketable title is in dispute, § 540 A provides
that the purchaser must pay six percent interest. On the other
hand, if a purchaser violates § 540 by failing to pay proceeds to
those legally entitled to them, the purchaser is required to pay
3 Quinlan requested the interest only from July 1, 1980, which
was the effective date of Okla. Stat. tit. 52, § 540.
-5-
Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 6
1 . 4 twe ve percent 1nterest. We review issues of state law de novo,
giving no deference to the district court's conclusion. Salve
Regina College v. Russell, 499 U.S. 225, 231 (1991).
Koch argues that Quinlan was not entitled to twelve percent
interest because he was not "legally entitled to the proceeds" as
he failed to show either marketable title or sign a division order
at unitization in 1971. This argument requires detailed
explanation. In Hull v. Sun Refining and Marketing Co., 789 P.2d
1272 (Okla. 1990), the Oklahoma Supreme Court held that a
purchaser of oil could not withhold payment of the purchase price
solely because of a seller's refusal to sign a division order and
4 Section 540 provides in relevant part:
A. The proceeds derived from the sale of oil or gas
production from any oil or gas well shall be paid to
persons legally entitled thereto, commencing no later
than six (6) months after the date of first sale, and
thereafter no later than sixty (60) days after the end
of the calendar month within which subsequent production
is sold .... [I]n those instances where such proceeds
cannot be paid because the title there to is not
marketable, the purchasers of such production shall
cause all proceeds due such interest to earn interest at
the rate of six percent (6%) per annum to be compounded
annually, calculated from the date of first sale, until
such time as the title to such interest has been
perfected. . . .
D. Any said first purchasers or owner of the right to
drill and produce substituted for the first purchaser as
provided herein that violates this section shall be
liable to the persons legally entitled to the proceeds
from production for the unpaid amount of such proceeds
with interest thereon at the rate of twelve percent
(12%) per annum to be compounded annually, calculated
from the date of first sale.
(emphasis added) .
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that "[t]he only condition justifying suspension of royalty
payments is a lack of marketable title." Id. at 1279. The Hull
court further stated that "[t]he right to payment rests upon a
showing of marketable title." Id. (emphasis added). Koch relies
on the word, "showing," in Hull to argue that Quinlan neither made
a showing to Koch of marketable title nor signed a division order,
and thus Quinlan was not "legally entitled to the proceeds" under
§ 540 and thus not entitled to recover twelve percent interest.
The issue Koch presents is whether Hull required Quinlan to
affirmatively show marketable title or merely possess marketable
title. In our view, the plain language of Hull requires Quinlan
to "show" Koch that he had marketable title. See Hull, 789 P.2d
at 1279. However, our inquiry does not end with this conclusion.
We must determine when Quinlan was required to make this showing
and whether such a showing was made.
In May of 1965, Quinlan's father transferred his portion of
the oil lease to Quinlan, and Koch received a quitclaim deed and
transfer order as evidence of this transfer. Koch asserts that
the transfer order did not constitute evidence of marketable
- ' title, and we agree. Transfer orders merely warrant that the
signor is the owner and authorize the purchaser to pay the signing
parties for a specified division of interest; transfer orders do
not amount to a conveyance of interest. See In re Unioil. Inc.,
962 F.2d 988, 995 (lOth Cir. 1992) (citing 4 Oil & Gas Law § 704.1
at 579-80, § 704.5 at 586, § 707 at 609-12 (footnotes omitted); 3A
WL Summers, The Law of Oil and Gas§ 590 at 140-42 (1958)).
-7-
Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 8
Furthermore, under Oklahoma law, a transfer order becomes a
nullity at unitization. See Young v. West Edmond Hunton Lime
Unit, 275 P.2d 304, 309 (Okla. 1954). Thus, the transfer order
could not serve as evidence of marketable title post-unitization.
Although the transfer order could not serve as evidence of
marketable title after the 1971 unitization, Koch held other
evidence of marketable title in the for.m of the quitclaim deed.
From a title opinion completed in 1955, Koch knew that Quinlan's
father had marketable title, and from the 1965 quitclaim deed,
Koch knew that title had been transferred to Quinlan. Because a
quitclaim deed is evidence of marketable title and because we find
no authority in Oklahoma that declares a quitclaim deed nullified
at unitization, we hold that at unitization, Quinlan had
sufficiently made his "showing" of marketable title, see Hull, 789
P.2d at 1279, thus making Quinlan "legally entitled to the
proceeds" from his oil lease, see Okla. Stat. tit. 52, § 540, even
though he failed to sign and return either the 1971 or the 1976
division orders, cf. Hull, 789 P.2d at 1279 (oil purchaser cannot
withhold payment of the purchase price solely because of seller's
refusal to sign division order). Because Quinlan was "legally
entitled to the proceeds," the district court correctly held that
Koch was required to pay Quinlan twelve percent interest on the
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Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 9
suspense monies pursuant to§ 540 D. 5
II.
Koch next argues that even if it has to pay Quinlan twelve
percent interest, the district court erred in holding that the
interest must be compounded annually beginning July 1, 1980. Koch
asserts that because the language "to be compounded annually" was
not added to Okla. Stat. tit. 52, § 540 D until July 1, 1989, and
because the Oklahoma legislature did not clearly provide that the
1989 amendment was retroactive, the district court should not have
allowed compound interest prior to July 1, 1989. We review this
state law issue de novo. Salve Regina College v. Russell, 499
u.s. 225, 231 (1991).
Under Oklahoma law, statutes and amendments to statutes are
to be construed as operating prospectively only, unless the
legislature clearly expresses an intent that it operate
retroactively. Texas County Irrigation & Water Resources Ass'n v.
Oklahoma Water Resources Bd., 803 P.2d 1119, 1122 (Okla. 1990).
Furthermore, a clarifying amendment--i.e., one which explains
ambiguous law to more clearly express the legislative intent--will
be given retroactive application if it does not impair vested
rights. Texas County Irrigation, 803 P.2d at 1122. Thus, we must
examine whether the 1989 amendment to § 540 was either expressly
intended by the legislature to be retroactive or intended to
5 Koch also argues that Quinlan was not entitled to six percent
interest under § 540 A because the marketability of Quinlan's
title was not in dispute. Because we hold that Koch violated
§ 540 and was entitled to 12% interest, we need not address this
argument.
-9-
Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 10
clarify § 540.
A.
The district court held that the legislature expressed its
intent to make the 1989 amendment retroactive because the words
"calculated from the date of first sale" follow the words of the
1989 amendment--"to be compounded annually." See supra note 4.
The district court further supported its retroactive application
of,compounded interest by citing Oklahoma Attorney General's
opinion no. 89-53 which implied that the compounded interest
provision should be applied retroactively. We find two problems
with the district court's analysis. First, the words "calculated
from the date of first sale," upon which the district court
relied, were part of a 1985 amendment and thus do not "clearly"
establish retroactive intent by the legislature that enacted the
1989 amendment as Oklahoma law requires. Furthermore, attorney
general's opinions, although given great respect, are not
controlling when a court is determining legislative intent. See
Davidson Oil County Supply Co .. Inc. v. Pioneer Oil & Gas Egyip.
Co., 689 P.2d 1279, 1281 (Okla. 1984). Because the attorney
general's opinion was addressing another issue during which it
made passing reference to the retroactivity of the compound
interest provision with no support or analysis, nothing in the
attorney general's opinion convinces us that the Oklahoma
legislature clearly intended retroactivity. Thus, we conclude the
legislature did not clearly express its intent that the 1989
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provision be applied retroactively.
B.
We also hold that the 1989 amendment was not merely a
clarifying amendment intended to explain a previously ambiguous
statute. It is a general principle of law that in the absence of
a contract or a statute specifically providing for compound
interest, compound interest is not to be computed on a debt. See
Cherokee Nation v. United States, 270 U.S. 476, 490 (1925).
Accord Stovall v. Illinois Central Gulf R.R. Co., 722 F.2d 190,
192 (5th Cir. 1984); Burlington Northern R.R. Co. v. Whitt, 611
So.2d 219, 224 (Ala. 1992); Otis v. Cambridge Mutual Fire Ins.
Co., 850 S.W.2d 439, 446 (Tenn. 1992). Furthermore, the Oklahoma
Supreme Court has held that language similar to that of pre-1989
§ 540 D--i.e., language to the effect that interest shall be
calculated "at the rate of ten percent (10%) per annum, from the
date of rendition"--provided only for computation of simple
interest. Lee v. Volkswagen of America. Inc., 743 P.2d 1067, 1069
(Okla. 1987). Thus, prior to 1989, § 540 D provided only for the
collection of simple interest. Because the 1989 amendment changed
the law and provided for compound interest, the 1989 amendment is
a substantive rather than clarifying amendment and thus not
subject to retroactive application. Therefore, we conclude that
the 1989 amendment providing for compounded interest should be
applied prospectively only, and Quinlan is only entitled to twelve
percent simple interest, rather than compounded interest, prior to
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6 the amendment's effective date of July 1, 1989.
III.
Koch next disputes the district court's pretrial holding
that, as a matter of law, Koch had a fiduciary duty to notify
Quinlan of the oil proceeds held in suspense. The district court
found this fiduciary relationship as a matter of law in response
to Koch's motion to dismiss for failure to state a claim on the
fiduciary duty issue.
Under Oklahoma law, the existence of a fiduciary relationship
is a question of fact which must be proven by the party asserting
the relationship. Steinbrugge v. Haddock, 281 F.2d 871, 872 (lOth
Cir. 1960); see also Devery Implement Co. v. J.I. Case Co., 944
F.2d 724, 730 (lOth Cir. 1991); First National Bank & Trust Co. of
Vinita v. Kissee, 859 P.2d 502, 510-11 (Okla. 1993); Mahan v.
Dunkleman, 234 P.2d 366, 370 (Okla. 1951). Thus, the only way the
district court could have fo~nd prior to trial that a fiduciary
relationship existed "as a matter of law" would be to find that
there was no genuine issue of material fact concerning the
existence of a fiduciary duty, thus entitling Quinlan to summary
judgment. See Fed. R. Civ. P. 56(c). Although Quinlan never
moved for sununary judgment on this issue, "district courts are
6 Quinlan cites Maxwell v. Samson Resources Co., 848 P.2d 1166,
1171 (Okla. 1993), to support his assertion that the 1989
amendment should be applied retroactively. However, in Maxwell,
the defendant oil company did not take issue with the compounding
of interest pursuant to § 540, but instead, only objected to the
trial court's compounding of interest monthly rather than annually
as the statute required. See id. (emphasis added). Thus, because
the retroactivity of § 540 was not at issue in Maxwell, the
Maxwell decision is of no assistance in this case.
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Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 13
widely acknowledged to possess the power to enter summary judgment
sua sponte, so long as the losing party was on notice that she had
to come forward with all of her evidence." Celotex Corn. v.
Catrett, 477 U.S. 317, 326 (1986); see also Durtsche v. American
Colloid Co., 958 F.2d 1007, 1009 n.l (lOth Cir. 1992). The
district court, however, failed to notify Koch of its intention to
grant summary judgment in favor of Quinlan on this issue, thereby
denying Koch of the opportunity to come forward with evidence
demonstrating the existence of a genuine issue of material fact.
Under these circumstances, the court committed reversible error in
finding a fiduciary relationship as a matter of law. See Jackson
v. Integra Inc., 952 F.2d 1260, 1261. (10th Cir. 1991).
Although the court erred in granting summary judgment in
favor of Quinlan, the district court properly denied Koch's motion
to dismiss for failure to state a claim on the fiduciary duty
issue. Under Oklahoma law, "a fiduciary relationship springs from
an attitude of trust and confidence and is based on some for.m of
agreement, either expressed or implied, from which it can be said
the minds have been met to create a mutual obligation." Lowrance
v. Patton, 710 P.2d 108, 112 (Okla. 1985) (emphasis added).
Fiduciary relationships are not limited to any specific legal
relationship, but can arise "anytime the facts and circumstances
surrounding a relationship 'would allow a reasonably prudent
person to repose confidence in another person.'" Devecy
Implement, 944 F.2d at 730 (quoting In re Estate of Beal, 769 P.2d
150, 155 (Okla. 1989), and discussing applicability of a fiduciary
-13-
Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 14
duty to a contractual relationship under Oklahoma law);~ also
Lowrance, 710 P.2d at 111-12. Thus, Oklahoma law would recognize
a fiduciary duty arising out of a commercial contract if the
transaction involved facts and circumstances indicative of the
imposition of trust and confidence, rather than facts and
circumstances indicat~ve of an arms length commercial contract.
See Devery Implement, 944 F.2d at 730. Because it was possible
fa~ Quinlan to prove facts entitling him to relief--i.e., by
proving an express or implied agreement between himself and Koch
to enter into a relationship of trust and confidence--Quinlan
properly alleged a claim upon which relief could be granted.
Thus, whether a fiduciary duty existed becomes either an issue for
the jury or a question for the district court to resolve on motion
for summary judgment, after proper notice to the parties, if no
dispute as to a material fact existed.
IV.
Koch argues that the district court should not have submitted
the issue of punitive damages to the jury because, under Oklahoma
law, punitive damages cannot be awarded in actions based on
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contract. See Okla. Stat. tit. 23, § 9. 7 Koch asserts that
because the existence of a fiduciary duty depends on an agreement
between the parties, see supra part III; Lowrance v. Patton, 710
P.2d 108, 112 (Okla. 1985), it arises from contract and is not
subject to punitive damages. Because this issue is likely to
recur on remand, we address it here. See United States v.
Sullivan, 919 F.2d 1403, 1421 (lOth Cir. 1990), cert. denied, 113
s .. ct. 285 (1992), and cert. denied, 113 S. Ct. 1013 (1993). We
review de novo. Salve Regina College v. Russell, 499 U.S. 225,
231 (1991) (state law issues are subject to de novo review).
We agree with Koch that Oklaho~ law precludes the recovery
of punitive damages where the "gravamen of plaintiff's action is
for breach of an obligation arising from contract." See Burton v.
Juzwik, 524 P.2d 16, 20 (Okla. 1974); see also Okla. Stat. tit.
23, § 9; Fretwell v. Protection Alar.m Co., 764 P.2d 149, 151
(Okla. 1988). Under Oklahoma law, however, an action for breach
of fiduciary duty when the fiduciary duty arises from contract can
be based either on tort or contract. See Panama Processes. S.A.
v. Cities Service Co., 796 P.2d 276, 289 n.55 (Okla. 1990); Hall
Jones Oil Corp. v. Claro, 459 P.2d 858, 861-62 (Okla. 1969). This
7 Okla. Stat. tit. 23, § 9 provides in relevant part:
In an action for the breach of an obligation not arising
from contract, where the defendant has been guilty of
conduct evincing a wanton or reckless disregard for the
rights of another, oppression, fraud or malice, actual
or presumed, the jury in addition to the actual damages,
may give damages for the sake of example, and by way of
punishing the defendant, in an amount not exceeding the
amount of actual damages awarded. . . .
-15-
Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 16
is because a contract can be the mere incident creating the
relation which furnishes the occasion for the tort. Hall Jones
Oil, 459 P.2d at 861-2. When a breach of fiduciary duty arises
from a contract, the injured party can choose whether to sue for
breach of contract or for tort. Panama Processes, 796 P.2d at 289
n.55; Hall Jones Oil, 459 P.2d at 861-2. Because Quinlan
abandoned his contract claims in favor of an action for breach of
fiduciary duty, making the "gravamen" of Quinlan's claim against
Koch one for tort rather than contract, the issue of punitive
damages may be presented to the jury on remand, assuming Quinlan
submits sufficient evidence on the issue. See McConnell v.
Oklahoma Gas & Elec. Co., 530 P.2d 127, 129 (Okla. 1974) (when
party permissibly elects to sue in tort rather than contract,
punitive damages can be recovered under Okla. Stat. tit. 23,
§ 9) • 8
v.
Quinlan, in his cross-appeal, asserts that he is entitled to
attorney fees as a prevailing party under Okla. Stat. tit. 52,
§ 540. In response, Koch asserts that Quinlan waived this issue
- below by failing to submit a claim for attorney fees pursuant to
§ 540 E. We agree.
8 Koch raises a number of objections to jury instructions given
by or refused to be given by the district court and also objects
to the courts admission of evidence regarding Koch's decision not
to report its suspense monies to the state of Oklahoma pursuant to
Oklahoma's Unclaimed Property Act. While we have the authority to
address issues which are likely to recur, we decline to do so as
to these issues because the circumstances at retrial could differ
in many respects. Sullivan, 919 F.2d at 1421.
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In his brief in support of his motion for summary judgment on
the § 540 interest issue, Quinlan requested attorney fees pursuant
to § 540 E. In its summary judgment order, the district court
denied the attorney fees request as "premature." Later, in his
post-trial application for attorney fees, Quinlan failed to
reassert his right to attorney fees pursuant to § 540, and instead
requested attorney fees pursuant to Okla. Stat. tit. 12, § 936
exclusively. In its attorney fee order, the district court
addressed only the § 936 request. Thus, Quinlan's failure to
reassert a claim for fees pursuant to § 540, 9 after the trial
court had rejected his pre-trial § 540 claim as premature,
constituted waiver of his right to assert a claim for fees
pursuant to § 540 on appea1. 10
We AFFIRM the district court's holding that Quinlan is
entitled to twelve percent interest, and we AFFIRM the district
court's denial of Quinlan's request for attorney fees. However,
we REVERSE the district court's holding that the compounding
provision of § 540 D is retroactive, we REVERSE the district
court's holding that Koch owed Quinlan a fiduciary duty as a
9 Quinlan argues that by citing § 540 in his post-trial
application for attorney fees, he impliedly reasserted his § 540
fee request. We disagree. The only mention of § 540 in his fee
application was as follows: "In May of 1991, the Court granted
Plaintiff Summary Judgment upon his first cause of action for
interest as provided by Title 52, O.S. § 540." (Appellant's App.
586). It is not possible to construe this sentence as a request
for fees, either implied or otherwise.
10 Because we have reversed and remanded for trial on the
fiduciary duty issue, we do not address Quinlan's claim that the
district court erred in reducing the amount of punitive damages.
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Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 18
~
~
matter of law, and we REMAND to the district court for
recalculation of the interest Koch owes Quinlan pursuant to
§ 540 D and for a new trial on the fiduciary duty issue.
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Appellate Case: 92-5219 Document: 01019287042 Date Filed: 04/12/1994 Page: 19 |
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U.S . District Court
E. D . California cd 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
WILLIAM PIERCE PLUMMER, )
)
Petitioner, )
)
)
v. )
)
)
W. L. SULLIVAN, Warden, )
)
Respondent. )
)
1:06-CV-0017 AWI LJO HC
ORDER ADOPTING FINDINGS AND
RECOMMENDATION
[Doc. #6]
ORDER DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS
[Doc. #1]
ORDER DENYING PENDING MOTIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
On January 17, 2006, the Magistrate Judge issued Findings and Recommendation that
recommended the petition be DISMISSED without prejudice. The Magistrate Judge further
recommended that the Clerk of Court be DIRECTED to enter judgment. The Findings and
Recommendation was served on all parties and contained notice that any objections were to be filed
within thirty (30) days of the date of service of the order.
On February 1, 2006, Petitioner filed objections to the Findings and Recommendation.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de
Case 1:06-cv-00017-AWI-LJO Document 13 Filed 03/06/06 Page 1 of 2
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novo review of the case. Having carefully reviewed the entire file and having considered the
objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is
supported by the record and proper analysis, and there is no need to modify the Findings and
Recommendations based on the points raised in the objections. The objections concern funds that
Petitioner believes prison officials have incorrectly deducted from his prison trust account. The
objections do not offer any reason why this court should proceed with the petition’s claims as a
habeas corpus petition.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendation issued January 17, 2006, is ADOPTED IN FULL;
2. The Petition for Writ of Habeas Corpus is DISMISSED without prejudice;
3. All pending motions are DENIED as moot; and
3. The Clerk of Court is DIRECTED to close this file.
IT IS SO ORDERED.
Dated: March 3, 2006 /s/ Anthony W. Ishii
0m8i78 UNITED STATES DISTRICT JUDGE
Case 1:06-cv-00017-AWI-LJO Document 13 Filed 03/06/06 Page 2 of 2 |
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[
"Martin Biter",
"Respondent"
],
[
"Jeremy Porter",
"Petitioner"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JEREMY PORTER,
Petitioner,
v.
MARTIN BITER,
Respondent.
Case No. 16-cv-00733-WHO (PR)
ORDER EXTENDING TIME
Dkt. No. 10
Respondent’s motion to extend time to file a response to the Order to Show Cause
(Dkt. No. 10) is GRANTED. The response shall be filed on or before September 23, 2016.
The Clerk shall terminate Dkt. No. 10.
IT IS SO ORDERED.
Dated: August 9, 2016
_________________________
WILLIAM H. ORRICK
United States District Judge
Case 3:16-cv-00733-WHO Document 11 Filed 08/09/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-15-02326/USCOURTS-ca6-15-02326-0/pdf.json | [
[
"Ismael Ahmed",
null
],
[
"Maura D. Corrigan",
"Appellant"
],
[
"Jim Gale",
"Appellant"
],
[
"Angie Hall",
"Appellee"
],
[
"Matthew Hall",
"Appellee"
],
[
"Kathleen Sinnamon",
"Appellant"
],
[
"Katrice Sweet",
"Appellant"
]
] | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0681n.06
Case Nos. 14-2595/15-2326
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANGIE HALL; MATTHEW HALL,
Plaintiffs-Appellees,
v.
KATRICE SWEET; KATHLEEN SINNAMON;
JIM GALE; MAURA D. CORRIGAN, in their
individual and official capacities,
Defendants-Appellants.
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
O P I N I O N
BEFORE: KEITH, McKEAGUE, and WHITE, Circuit Judges.
McKEAGUE, Circuit Judge. This case arises out of investigations of a group child
care home. On two separate occasions, once in 2010 and once in 2011, employees of Michigan’s
Department of Health and Human Services, Katrice Sweet and Kathleen Sinnamon, responded to
complaints that Angie Hall’s group child care home was in violation of her license. On both
occasions, one or both employees searched the Halls’ home looking for children Ms. Hall may
have hidden from inspectors. During the 2010 search, children were found hidden in a private
room behind a locked door. Ms. Hall’s license was subsequently revoked.
The Halls brought suit under 42 U.S.C. § 1983, in part claiming that the searches of their
home violated the Fourth Amendment. The district court denied defendants’ motion to dismiss
based on qualified immunity on the claim, holding that the complaint adequately alleged a
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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.
- 2 -
colorable claim in avoidance of qualified immunity. However, Ms. Hall consented to searches of
this nature in her 2008 license renewal application, and such consent undercuts the Fourth
Amendment claim. Moreover, plaintiffs failed to allege conduct that violated their rights under
clearly established law at the time of the investigations. Therefore, we reverse the district court’s
order denying defendants Sweet and Sinnamon qualified immunity.
I
Beginning in 2006, Angie Hall operated a licensed “group child care home” in
Middleville, Michigan in the house she owned with her husband. The Halls’ living space was on
the upper level and approved child care space was on the lower level. The entrance to the living
area on the first floor was also the entrance to the day care space on the lower level. The group
child care home was subject to many rules under Michigan’s child care licensing regulations,
including a maximum capacity of twelve children and a maximum child-to-caregiver ratio of 6 to
1. See Mich. Admin. Code, R. 400.1908, R. 4001.1910.
In 2008, Ms. Hall applied for renewal of her license. As part of the one-page renewal
application, Ms. Hall checked a box agreeing to an inspection of her facility. She signed the
application and her license was renewed without restrictions or limitations.
In 2010, authorities received an anonymous complaint that Ms. Hall’s group child care
home was over-capacity and that she was hiding children during inspections.1In response,
Katrice Sweet, a licensing consultant with the State of Michigan’s Department of Health and
Human Services (DHHS) Bureau of Children and Adult Licensing, conducted an unannounced
on-site inspection of the child care home.
1 Hall had previously been found to be both over-capacity and over-ratio. Hall signed a
Corrective Action Plan in 2007 admitting to being over-capacity and over-ratio and agreeing to
future compliance.
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On the day of the inspection, Sweet entered the house without knocking and without a
warrant. She went directly to the lower level where Ms. Hall was supervising children with an
assistant. Sweet demanded that Ms. Hall show her the entire home. Together with Ms. Hall,
Sweet looked throughout the home for hidden children, including in bedrooms, closets, and
cabinets on the upper level. Eventually, she found four children hiding behind a locked door in
the lower level in space used by the Halls as a workout room not approved for child care. With
those four children counted, the child care home was supervising fifteen children, and was thus
over-capacity and over-ratio. Sweet’s subsequent report led to an administrative hearing and
contributed to the eventual revocation of Hall’s license.
The 2011 inspection took place while the administrative process was playing itself out.
Following a complaint that the group child care home was operating without an assistant
caregiver, Sweet, along with her supervisor Kathleen Sinnamon, returned to the house to
investigate, without a warrant. Sweet again searched the entirety of the home. Unlike the 2010
investigation, however, the 2011 investigation uncovered no violations. Id. In January of 2012,
a Michigan appeals court affirmed the Administrative Law Judge’s decision to revoke Hall’s
license.
Following the revocation of Ms. Hall’s license, Angie and Matthew Hall filed a
complaint, under 42 U.S.C. § 1983 in the United States District Court for the Western District of
Michigan, alleging that DHHS employees had committed various constitutional violations during
the two investigations and the administrative proceedings against Angie Hall. Plaintiffs’
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complaint named DHHS Bureau of Children and Adult Licensing directors Maura Corrigan and
Ismael Ahmed,2bureau director Jim Gale, Sweet, and Sinnamon as defendants.
In place of an answer, the defendants filed a motion to dismiss that raised several grounds
for dismissal, including a qualified immunity defense. R. 57, Dist. Ct. Op. PID 1234.
Following subsequent briefing, the district court issued its order granting the defendants’ motion
on all counts against all defendants except one: the claim that Sweet and Sinnamon’s warrantless
searches of the Halls’ residence during the 2010 and 2011 investigations violated the Fourth
Amendment.3Id. at 1238, 1274.
In the district court, defendants argued that the 2010 and 2011 investigations fell within
an exception to the Fourth Amendment warrant requirement. Id. at 1259–60. The district court
disagreed. Id. at 1262. The court held that a warrantless search of a home is presumptively
unreasonable, that the warrant requirement was clearly established law, and that the pleadings
did not support defendants’ position that a warrant exception applied here. Id. at 1259.
The district court rejected all three theories asserted by defendants that would have made
out exceptions to the warrant requirement. Id. Defendants first argued that consent for the
searches flowed from the license renewal application signed by Ms. Hall on which she checked a
box agreeing to a reasonable onsite inspection of her group child care home. Id. The district
court did not consider this application—it considered the document to be outside the pleadings—
2
Plaintiffs stipulated to the dismissal of Defendant Ismael Ahmed. R. 57, Dist. Ct. Op.
PID 1230, n.1.
3
The district court dismissed the claims against Corrigan and Gale relating to the two
investigations because plaintiffs failed to state a claim against them in their individual capacities.
R. 57, Dist. Ct. Op. PID 1249–50, 1271, n.6. On appeal, defendants again raise a defense for
Corrigan and Gale. Plaintiffs do not respond to this defense. However, reading the district court
opinion as having dismissed the claims against Corrigan and Gale and the plaintiffs as having
waived any objection to that dismissal, the issue of Gale and Corrigan’s liability is not before
this court. All that remain are the claims against defendants Sweet and Sinnamon for the
searches of plaintiffs’ home.
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and so concluded that the consent exception did not apply. Id. at 1259–60. The court also
rejected defendants’ argument that Michigan statutes and regulations gave them authority for the
searches. Id. at 1260. The court held that the regulations defendants cited were inapplicable
because “[t]o the extent that on-site inspections are authorized, they are authorized for situations
and circumstances other than what occurred here.” Id. Finally, the court found defendants’
argument that the closely-regulated business exception applies to group child care homes was
unpersuasive and unsupported by authority. Id. at 1261.
Defendants, Sweet and Sinnamon, now appeal the district court’s denial of their motion
to dismiss based on qualified immunity.4
II
The district court had federal question subject-matter jurisdiction over plaintiffs’ claims
for violations of the Fourth and Fourteenth Amendments of the U.S. Constitution, actionable
under the provisions of 42 U.S.C. § 1983. See 28 U.S.C. § 1331. Defendants’ appeal challenges
an interlocutory ruling that would not ordinarily be subject to immediate review. However, a
pretrial order denying qualified immunity is immediately appealable under the collateral order
doctrine insofar as it implicates only questions of law. Plumhoff v. Rickard, 134 S.Ct. 2012,
2018–19 (2014); McDonald v. Flake, 814 F.3d 804, 812–13 (6th Cir. 2016).
This appeal boils down to three pure issues of law. First, defendants challenge the
district court’s determination that the 2008 license renewal application is not part of the
pleadings for purposes of the motion to dismiss. Second, when considering whether there was a
4
This is a consolidated appeal. Defendants first filed an interlocutory appeal of the
district court’s initial denial of qualified immunity for the Fourth Amendment claim, which this
court held in abeyance until the district court issued an order fully resolving the motion to
dismiss. The district court’s subsequent order again denied qualified immunity for the Fourth
Amendment claim, which was also appealed, and which this court consolidated with the first
appeal.
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constitutional violation, defendants appeal implicates the scope of consent provided by that
renewal application, on which Ms. Hall marked that she agreed to an investigation by DHHS
officials. See Florida v. Jimeno, 500 U.S. 248, 251 (1991) (scope of consent is a question of
objective reasonableness). Third, if necessary, this court considers whether the alleged wrongful
conduct by defendants violated clearly established rights at the time of the searches.
See Johnson v. Jones, 515 U.S. 304, 313 (1997) (there is appellate jurisdiction for “[t]he purely
legal issue of what law was ‘clearly established’”) (quoting Mitchell v. Forsyth, 472 U.S. 511,
530 (1985)).
Because these three issues raise only pure questions of law, we have appellate jurisdiction
under the collateral order doctrine to consider the district court’s denial of qualified immunity.
See Plumhoff, 134 S.Ct. at 2018–19 (deciding a qualified immunity defense as to whether
conduct violated the Fourth Amendment or violated clearly established law is “a core
responsibility of appellate courts”).
A
A district court’s denial of a motion to dismiss that raises a qualified immunity defense is
reviewed de novo. Johnson v. Moseley, 790 F.3d 649, 652 (6th Cir. 2015). The court accepts
the complaint’s factual allegations as true and construes the complaint in the light most favorable
to the plaintiff. Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). To
survive a motion to dismiss, the complaint must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, “a legal
conclusion couched as a factual allegation” need not be accepted as true. Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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The threshold issue is whether the district court evaluated the motion to dismiss based on
a too-restrictive view of the pleadings. As part of her 2008 license renewal application, Ms. Hall
checked a box next to the following consent provision:
[i]n order to permit proper determination of conformity with the rules, I give
permission to the Michigan Department of Human Services to make a necessary
and reasonable investigation of activities and standards of care, and to make an
onsite inspection of my facility and services.
Brief for Defendants-Appellants, Exhibit 1, PID 81. The district court refused to consider the
license renewal application because it was “outside the pleadings” and not “central to the
complaint.” R. 57, Dist. Ct. Op. PID 1259–60. Defendants assert the district court should have
considered the application.
As this court has held, when a court “is presented with a Rule 12(b)(6) motion, it may
consider the Complaint and any exhibits attached thereto, public records, items appearing in the
record of the case and exhibits attached to defendant’s motion to dismiss so long as they are
referred to in the Complaint and are central to the claims contained therein.” Bassett v. Nat’l
Collegiate Athletics Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
Here, the 2008 renewal application’s consent provision was referred to in and central to
the complaint, attached as an exhibit to defendants’ motion to dismiss, and fully quoted in
exhibits attached to the complaint. The 2008 renewal was Ms. Hall’s final renewal before her
license was revoked and covered the time period at issue here. Plaintiffs refer to renewal of her
license in 2008 throughout their complaint, including, in paragraph 75 of the complaint, a direct
reference to the consent provision taken from the transcript of the administrative hearing. This
specific reference to the application was central to plaintiffs’ claims that DHHS had an
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unconstitutional policy permitting searches of a group child care home in its entirety.5 In support
of these claims, plaintiffs attached exhibits to their amended complaint, records from Ms. Hall’s
administrative hearing, directly quoting the application and confirming that Ms. Hall signed it.
Moreover, defendants attached a signed copy of the signed 2008 renewal application as an
exhibit to their motion to dismiss.
Taking all of this together, and as conceded by plaintiffs’ counsel at oral argument, the
court can and should consider the 2008 renewal application and its language when evaluating de
novo the denial of the Rule 12(b)(6) motion to dismiss. See Bassett, 528 F.3d at 430; see also
MacDonald v. Thomas M. Cooley Law Sch., 724 F.3d 654, 657–58 (6th Cir. 2013) (deriving
facts, on a motion to dismiss, from five exhibits attached to the complaint); Northampton Rest.
Grp., Inc. v. FirstMerit Bank, N.A., 492 F. App’x 518, 522 (6th Cir. 2012) (considering copies of
contracts attached to defendant’s motion to dismiss that were referenced in and central to
plaintiff’s complaint). Thus, the district was permitted to consider the 2008 renewal application
when considering this motion and we may consider it now.
B
1. Qualified Immunity Framework
Government officials may raise qualified immunity as a defense to a § 1983 action. Once
raised, the plaintiff bears the ultimate burden of demonstrating that the defendant is not entitled
to qualified immunity. Rodriguez v. Passinault, 637 F.3d 675, 689 (6th Cir. 2011). We follow a
two-part inquiry to determine when a grant of qualified immunity is proper. Austin v. Redford
Twp. Police Dept., 690 F.3d 490, 496 (6th Cir. 2012) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)). To survive a qualified immunity defense, the facts as alleged must show that the
5
These claims were dismissed by the district court and are not revived here. See R. 57,
Dist. Ct. Op. PID 1247–50.
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defendant violated a constitutional right and that the right at issue was “clearly established” at
the time of the event. Pearson v. Callahan, 555 U.S. 223, 236 (2009). If either requirement is
unmet, qualified immunity shields the official from civil damages. Austin, 690 F.3d at 496
(citing Pearson, 555 U.S. at 236). The court may make the two necessary determinations in
either order, but need not reach both. Id.
2. Whether a Constitutional Right was Violated
We begin with the first step in the qualified immunity analysis: whether, as pleaded, the
2010 and 2011 investigations violated plaintiffs’ Fourth Amendment rights. The Fourth
Amendment protects against unreasonable searches and seizures. The Supreme Court has
recognized that “physical entry of the home is the chief evil against which the wording of the
Fourth Amendment is directed.” United States v. U.S. Dist. Ct., 407 U.S. 297, 313 (1972). For
that reason, “searches and seizures inside a home without a warrant are presumptively
unreasonable.” Groh v. Ramirez, 540 U.S. 551, 559 (2004). Thus, a warrantless search inside a
home by a government official violates the Fourth Amendment unless an exception to the
warrant requirement applies. See Andrews v. Hickman Cty., Tenn., 700 F.3d 845, 854, 858 (6th
Cir. 2012).
The parties do not dispute that both the 2010 and 2011 investigations of the Halls’ home
were conducted without a warrant. Therefore, defendants must demonstrate that an exception to
the warrant requirement applied to each search in order to prevail on this prong of their qualified
immunity defense.
Defendants assert that Ms. Hall consented to the searches of her entire home, which, if
true, would be enough to show there was no constitutional violation. It is well settled that “a
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person may waive his Fourth Amendment rights by consenting to a search.” United States v.
Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc).
To support their position, defendants rely on Ms. Hall’s 2008 license renewal application
on which she agreed that:
[i]n order to permit proper determination of conformity with the rules, I give
permission to the Michigan Department of Human Services to make a necessary
and reasonable investigation of activities and standards of care, and to make an
onsite inspection of my facility and services.
Brief for Defendants-Appellants, Exhibit 1, PID 81. Defendants argue that this signed
permission gave consent for the full scope of the 2010 and 2011 searches—including the search
of portions of plaintiffs’ home that were not approved for child care. Plaintiffs do not dispute
that Ms. Hall signed the application and checked the box giving consent to search or, as
conceded at oral argument, that it gave consent for searches of approved child care space. Their
challenge implicates the scope of consent, not the fact of consent.6
The scope of a warrantless search is limited by the scope of consent. United States v.
Gant, 112 F.3d 239, 242 (6th Cir. 1997). The scope of consent is determined by objective
reasonableness. See United States v. Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004)
(quoting Florida v. Jimeno, 500 U.S. 248, 251–52 (1991)). “The scope of a search is generally
defined by its expressed object.” Jimeno, 500 U.S. at 252 (citing United States v. Ross, 456 U.S.
758 (1982)). Thus, a search is not beyond the scope of consent when it was reasonable given its
expressed object. See id. (finding consent to search a car for drugs included consent to search a
6
In paragraph 78 of their amended complaint, plaintiffs allege, with regard to the
2011 search, that neither plaintiff “gave consent for this search” but instead “complied to this
search because under the licensing rules and regulations, failure to cooperate with the licensing
consultant during an investigation is a violation.” This allegation speaks only to the occasion of
the search—not the 2008 renewal application’s consent provision—and is rendered immaterial if
that consent provision provided consent for the search. We do not require both written and oral
consent for it to be effective. Cf. United States v. Frost, 521 F. App’x 484, 489 (6th Cir. 2013)
(oral consent to search was not rendered equivocal by refusal to sign written consent form).
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paper bag in the trunk); see also Garrido-Santana, 360 F.3d at 576 (search of a gas tank fell
within scope of suspect’s consent when he knew officers were searching his car for drugs).
Reading the consent provision on Ms. Hall’s license renewal application in light of the
relevant regulatory scheme reveals that she agreed to a search of her entire home. The renewal
application provided consent for an inspection of Ms. Hall’s “facility” for the purpose of
ensuring “conformity with the rules.” Although neither “facility” nor “rules” was expressly
defined on the form, reading the language in context shows it was objectively reasonable to
understand the language as providing consent for the full scope of the challenged searches. As
conceded at oral argument, the “rules” were Michigan’s child care regulations and the
application was signed to renew Ms. Hall’s license to operate the “group child care home” she
ran out of her home. From this, it follows that the “facility” referenced on the form was the
“group child care home” for which she was renewing her license. Notably, the “rules” included
Michigan’s Child Care Licensing Act, which defined “group child care home” as a private
residence:
(i) “Private home” means a private residence in which the licensee or registrant
permanently resides as a member of the household, which residency is not
contingent upon caring for children or employment by a licensed or approved
child placing agency. Private home includes a full-time foster family home, a fulltime foster family group home, a group child care home, or a family child care
home, as follows:
...
(iv) “Group child care home” means a private home in which more than 6 but not
more than 12 minor children are given care and supervision for periods of less
than 24 hours a day unattended by a parent or legal guardian, except children
related to an adult member of the family by blood, marriage, or adoption. Group
child care home includes a home in which care is given to an unrelated minor
child for more than 4 weeks during a calendar year.
Mich. Comp. Laws § 722.111(1)(i)(iv) (emphasis added). Thus, Ms. Hall’s consent to
inspections of her group child care “facility” reasonably provided consent to inspections of her
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entire residence. The two are one and the same. And plaintiffs make no claim that they
withdrew or limited the scope of this consent before or during either search.
Nor did the two searches wander beyond their express object: to ensure conformity with
the ratio and capacity rules governed by Mich. Admin. Code R. 400.1908. The searches
followed reports that Ms. Hall was violating these rules and hiding children in space not
approved for child care during inspections, and were limited to spaces where children might
actually be hidden. Thus, the searches fell fully within the scope of consent provided by the
2008 license renewal application signed by Ms. Hall.
Finally, it cannot be said that the consent provision was invalid simply because agreeing
to its terms may have been a condition of receiving the child care operating license. We
recognize that “conditions can lawfully be imposed on the receipt of a benefit—conditions that
may include the surrender of a constitutional right, such as the right to be free from unreasonable
searches and seizures—provided the conditions are reasonable.” Burgess v. Lowery, 201 F.3d
942, 947 (7th Cir. 2000) (collecting cases); see also Knox Cty. Educ. Ass’n v. Knox Cty. Bd. of
Educ., 158 F.3d 361, 366–67, 384 (6th Cir. 1998) (finding no constitutional violation for
requirement that school employees agree to suspicionless urinalysis as a condition of job offer).
Here, Ms. Hall was operating a child care business out of a home under a license that, upon
renewal, asked her to agree to inspections intended to ensure her home complied with child
safety requirements.
If this consent provision is read as a condition of the license, it is a reasonable one. For
one thing, the state has an overwhelming justification in ensuring child wellbeing is adequately
protected at the locations it licenses for child care. For another, homeowners voluntarily
operating a child care business out of their home—knowingly subjecting that home to related
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regulatory oversight—have a reduced expectation of privacy there. Under these circumstances,
and weighing the state’s interest in protecting child safety against the privacy interest of child
care licensees, it is reasonable for these licenses to be conditioned on consent to investigations of
the houses where the child care homes are operated. Cf. Knox Cty. Educ. Ass’n, 158 F.3d at 379,
384 (drug testing of school employees was reasonable given the public’s “very strong” interest in
ensuring child safety through testing and because the employees’ privacy interest was
“significantly diminished by the level of regulation of their jobs and by the nature of the work
itself”). Conditioning a group child care home license on consent to search that home is
distinguishable from unreasonably conditioning a license on consent to search areas unrelated to
that license and with no similarly compelling childcare interests at stake. See, e.g., Anobile v.
Pelligrino, 303 F3d 107, 121, 124–25 (2d. Cir. 2001) (state horse racing license was
impermissibly conditioned on consent to search dormitories). In sum, the condition here, that the
group child care home license would issue only if the state could inspect the home for regulatory
compliance, was a reasonable one. The consent to search was therefore effective.
Accordingly, the court finds defendants’ conduct was not a violation of the Fourth
Amendment because Ms. Hall had consented to the searches and plaintiffs did not withdraw or
otherwise limit that consent.
3. Whether the Right was Clearly Established
However, even if we were to assume, arguendo, that the pleadings are sufficient to show
a constitutional violation; defendants remain entitled to qualified immunity unless plaintiffs have
also shown that defendants’ conduct violated a clearly established statutory or constitutional
right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiffs fail to do so.
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- 14 -
A right is clearly established when “it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “Qualified
immunity ordinarily applies unless the contours of the asserted right were sufficiently clear that
every reasonable official would have understood that what he was doing violated that right.”
Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir. 2015) (citing Ashcroft v. al-Kidd, 563 U.S. 731
(2011)). Accordingly, qualified immunity “gives ample room for mistaken judgments by
protecting all but the plainly incompetent or those who knowingly violate the law.” Id. (quoting
Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal quotations omitted). Thus, qualified
immunity applies irrespective of whether the official’s error was a mistake of law or a mistake of
fact, or a mistake based on mixed questions of law and fact. Pearson, 555 U.S. at 231.
The burden of showing that a right was clearly established at the time of an alleged injury
falls to the plaintiff. T.S. v. Doe, 742 F.3d 632, 635 (6th Cir. 2014). To determine “whether a
right was clearly established, we look first to decisions of the Supreme Court, then to our own
precedents, and then to decisions of other courts of appeal, to ask whether these precedents
‘placed the ... constitutional question beyond debate.’” Hearring v. Sliwowski, 712 F.3d 275, 280
(6th Cir. 2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)); see also Andrews,
700 F.3d at 853.
Here, we consider the decision by DHHS licensing consultants, responsible for ensuring
child care homes are compliant with child safety rules, to conduct warrantless searches of
plaintiffs’ home following reports that Ms. Hall’s group child care home was over-ratio, overcapacity, and that she was hiding children during inspections and knowing she had given consent
to a reasonable search of her facility. Plaintiffs have failed to show this discretionary conduct
violated a clearly established right.
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Plaintiffs cite to Camara v. Municipal Court of City & County of San Francisco,
387 U.S. 523 (1967) to show that it has long been established that “administrative” searches
require a warrant. In Camara, the Court concluded that “administrative searches,” conducted
there to ensure compliance with the city’s housing code, were “significant intrusions upon the
interests protected by the Fourth Amendment.” 387 U.S. at 534. Thus, the Court held that the
Fourth Amendment warrant requirement applied to “administrative searches” of private
residences. Id. Plaintiffs point to several other cases derived from Camara’s holding that show
other “administrative searches” found to violate the Fourth Amendment. See Michigan v. Tyler,
436 U.S. 499 (1978) (entry of a burned building by firefighters and detectives to look for the
fire’s cause required a warrant); Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) (provisions
under OSHA permitting warrantless searches of a business to ensure compliance with workplace
safety rules were unconstitutional).
Plaintiffs’ rely on these cases for the proposition that a government search of a home to
check for compliance with a regulatory code—no matter who searches or what the regulatory
code covers—is an “administrative search” that must comport with the Fourth Amendment
warrant requirement and that this is clearly established. In other words, plaintiffs argue that,
because the searches here were to ensure plaintiffs’ compliance with (child care) regulations,
they were “administrative” searches and therefore violated clearly established Fourth
Amendment rights because they lacked a warrant.
This position is untenable. Qualified immunity requires plaintiffs “to plead facts making
out a violation of a constitutional right clearly established in a particularized sense. That is, the
right said to have been violated must be defined in light of the specific context of the case, not as
a broad general proposition.” Johnson v. Moseley, 790 F.3d at 654 (quoting Brosseau v. Haugen,
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543 U.S. 194, 198 (2004)). Plaintiffs draw the right here in a much too generalized way and
ignore the specific context of the case. Camara and its progeny provide only a broad
generalization on which officials in defendants’ shoes could rely to discern whether their conduct
was unlawful: that the searches were related to suspected regulatory violations. Showing
conduct violates a clearly established right requires more particularized context than plaintiffs
provide through their cited cases. See id. Indeed, this was the district court’s error as well.
Most importantly, plaintiffs fail to consider the essential contextualizing fact that Ms.
Hall agreed to an onsite inspection of her facility and services in her licensing renewal. Even
assuming, arguendo, that this consent provision did not provide actual consent for the full scope
of the searches, it cannot be said it was objectively unreasonable for the DHHS employees to
believe it did. While the form did not explicitly define “facility” anywhere, the relevant
regulations defined private home and group child care home as one and the same and regulated
space not approved for child care,
7 making it reasonable for the DHHS employees to believe Hall
had given consent for a search of the entire home by agreeing to a search of her “facility” in
order “to ensure conformity with the rules.” Indeed, defendant Sweet indicated that this was her
understanding of the provision when, during the administrative proceedings against Ms. Hall, she
said that “I believe . . . it states on the [license] application that they will give us access to their
whole entire home.” R. 43, Amd. Complt., PID 629. In light of the relevant regulations and the
provision’s language, a belief that the form gave consent for the full scope of both searches is a
reasonable one.
7
See, e.g., Mich. Admin. Code R. 400.1944 (requiring smoke detectors installed and
maintained “on each floor of the home”); Mich. Admin. Code R. 400.1935 (regulating the
storage and sale of firearms on the premises).
Case: 15-2326 Document: 43-2 Filed: 12/16/2016 Page: 16
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- 17 -
In short, because of the consent provision from the license renewal application, it cannot
be said that defendants Sweet and Sinnamon were plainly incompetent or in knowing violation of
the law when they searched space in the home not approved for child care. Theirs was precisely
the kind of reasonable discretionary conduct—even if based on a mistaken understanding of fact
or law—that the doctrine of qualified immunity protects. See, e.g., Pearson, 555 U.S. at 231.
Plaintiffs’ argument that the law was clearly established is further undermined by the
close resemblance of the investigations here to that at issue in Andrews v. Hickman Cty., Tenn.,
700 F.3d 845, 854, 858 (6th Cir. 2012). Andrews involved the warrantless search of a house in
2008, conducted by social workers investigating allegations of child abuse. Id. at 850. In
response to a complaint, the social workers entered the home and conducted a walk-through,
checking for food and ensuring any weapons were properly stored. Id. at 850–51. They did not
find any violations. Id. at 851. The court, considering a qualified immunity defense, held the
entry and search violated the Fourth Amendment, but went on to consider whether it was clearly
established at the time whether the Fourth Amendment warrant requirement applied to “social
workers carrying out investigations regarding the welfare of children.” Id. at 860. The court
held it was not. Id. Since then, this circuit has continued to hold that it was not clearly
established that the warrant requirement applied to social workers conducting similar
investigations prior to the Andrews decision, at least through 2011. See Brent v. Wenk , 555 F.
App’x 519 (6th Cir. 2014) (holding a social worker’s 2010 investigation relating to child
wellbeing did not violate clearly established law); Barber v. Miller, 809 F.3d 840 (6th Cir. 2015)
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(a social worker’s 2011 investigation relating to child wellbeing did not violate clearly
established law).8
In light of both Andrews and Camara, it cannot be said that defendants violated clearly
established law. At the time of the challenged searches, either one of these competing Fourth
Amendment case lines potentially applied—defendants’ conduct arguably resembled that of the
social workers granted qualified immunity in Andrews as much as that of the administrative
searchers in Camara. And no decision of this court or the Supreme Court had addressed, even
generally, whether a warrant was required for the search of a home out of which a state-regulated
day care was operated. Given this lack of certainty in Fourth Amendment’s applicability to the
circumstances faced by defendants, reasonable officials in their shoes would not have been on
clear notice whether their conduct violated the law.
Plaintiffs attempt to undermine any similarity of the facts here to those in Andrews by
citing to a 2004 opinion from the Western District of Michigan which had held, prior to
Andrews, that social workers conducting a warrantless search of a home violated the Fourth
Amendment. O’Donnel v. Brown, 335 F. Supp. 2d 787, 827 (W.D. Mich. 2004) (noting that
“government officers [including social workers] cannot enter a home without either prior court
approval, consent, or exigent circumstances”). Plaintiffs point out that this opinion was from the
same district court where the instant case was filed and therefore it should have put the
8 Another case of this circuit also dealt with an alleged Fourth Amendment violation by
social workers investigating child welfare. Kovacic v. Cuyahoga Cty. Dep’t of Children
& Family Servs., 724 F.3d 687 (6th Cir. 2013). Kovacic considered the 2002 removal of
children from a home by social workers without a warrant. Id. at 692. The court found that
seizures of children by social workers, if not searches related to them, violated clearly
established Fourth Amendment rights. Id. Sweet and Sinnamon did not remove any children, so
this case is irrelevant here.
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defendants on notice that their conduct was unlawful to the extent it resembled child welfare
investigations by social workers.
Plaintiffs find support for their position—that the district court decision is enough on its
own to clearly establish law in that district—in a footnote from the Andrews opinion. In finding
there was no precedent in either the Supreme Court or the Sixth Circuit clearly establishing
whether social workers were required to comport with the Fourth Amendment, the Andrews
court used a footnote to dispose of a lower court decision to the contrary. Andrews, 700 F.3d at
862, n.7. That decision came out of the United States District Court for the Northern District of
Ohio and held not only that social workers were constrained by the Fourth Amendment, but that
this right was clearly established. Id. (citing Walsh v. Erie Cnty. Dep’t of Job & Family Serv.,
240 F.Supp. 2d 731 (N.D. Ohio 2003)). However, the Andrews court said this lower court
opinion was not enough for the purposes of the case before it because “[t]he instant case was
heard in the Middle District of Tennessee” and therefore the Walsh decision, out of the Northern
District of Ohio, was “not sufficient to put the State Defendants on notice that the right was
clearly established.” Andrews, 700 F.3d at 862, n.7. In the same footnote, the Andrews court
seemed to imply that—had the earlier district court been the same one out of which the instant
appeal arose—it might have been enough to put the defendants on notice. Id. (“to find a clearly
established right, absent extraordinary circumstances, a district court looks to ‘binding precedent
by the Supreme Court, its court of appeals or itself’”) (quoting Ohio Civil Serv. Employees Ass’n
v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1989) (emphasis added).
Plaintiffs read this footnote too broadly. A single district court opinion is not enough to
pronounce a right is clearly established for purposes of qualified immunity. While a district
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court opinion may be persuasive in showing there is a clearly established right—perhaps by
exposing a trend in non-precedential case law—it is not controlling on its own.9
Further, even were we to consider O’Donnel, the proposition for which plaintiffs cite the
case was extinguished by this circuit’s directly contrary holding in Andrews. It cannot be said
O’Donnel placed a constitutional question “beyond debate” when later, in Andrews, this circuit
found the very same question did not have a clear answer. In short, decisions from this court
stand for the proposition that, between 2008 and 2011, it was not clearly established in any
district of this circuit that the Fourth Amendment applied to social workers conducting a search
of a home relating to the wellbeing of children. See Barber, 809 F.3d at 846–47. This
uncertainty in whether the Fourth Amendment applies to investigations related to child wellbeing
contributes to a finding that defendants were not on clear notice whether their conduct violated
the law.
9
The same is true in other circuits. See, e.g., Estate of Escobedo v. Bender, 600 F.3d
770, 781 (7th Cir. 2010) (“to determine whether a right is clearly established at the time of the
violation, we look first to controlling precedent on the issue from the Supreme Court and to
precedent from this Circuit. In the absence of controlling precedent, we must broaden our survey
to include all relevant case law in order to determine whether there was such a clear trend in the
caselaw that we can say with fair assurance that the recognition of the right by a controlling
precedent was merely a question of time”) (internal quotations omitted) (emphasis added);
Cortez v. McCauley, 478 F.3d 1108, 1114–15 (10th Cir. 2007) (“for a right to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as the plaintiff
maintains”) (internal quotations omitted). Indeed, in several circuits, district court opinions are
not considered whatsoever in determining clearly established law. Moore v. Pederson, 806 F.3d
1036, 1047 (11th Cir. 2015) (“to determine qualified immunity, an Eleventh Circuit court looks
to decisions of the United States Supreme Court, the United States Court of Appeals for the
Eleventh Circuit, and the highest court of the pertinent state”) (internal quotations omitted);
Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (“When neither the Supreme Court nor this
court has recognized a right, the law of our sister circuits and the holdings of district courts
cannot act to render that right clearly established within the Second Circuit”); but see Tarabochia
v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014) (“[i]n the absence of binding precedent clearly
establishing the constitutional right, we look to whatever decisional law is available including
decisions of state courts, other circuits, and district courts”) (internal quotations removed).
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In sum, considering the circumstances of the two searches as pleaded in light of thenestablished law, it was not clearly established that Sweet and Sinnamon were violating the
Fourth Amendment when they searched plaintiffs’ home without a warrant in 2010 and 2011.
A reasonable investigator “faced with the circumstances of this case could not ascertain from
clearly established law the legality of her conduct.” Andrews, 700 F.3d at 862. Plaintiffs have
therefore failed in their burden to establish in the pleadings that defendants violated a clearly
established right. Accordingly, defendants are entitled to qualified immunity.
VI
For the reasons above, we REVERSE the district court’s order denying Sweet and
Sinnamon’s motion to dismiss based on the qualified immunity defense.
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HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority’s decision to reverse the district court’s order denying Sweet
and Sinnamon’s motion to dismiss with regard to the first search. Sweet and Sinnamon were
entitled to qualified immunity for this search because it was objectively reasonable for Sweet to
construe Hall’s consent as encompassing the first challenged search. As to the second search, I
disagree with the majority’s conclusions that the search was reasonable and that the law was not
clearly established at the time of the searches.
The majority correctly observes that Michigan has a strong interest in ensuring child
safety in child care facilities, and I agree that the first search—conducted pursuant to a report
that Hall was hiding children in rooms unlicensed for child care—was permissible. It was
objectively reasonable for Sweet to believe that Hall’s consent to an “onsite inspection of [her]
facility” to determine “conformity with the rules” authorized the search for hidden children.
I disagree with the majority, however, insofar as it implies that the second search was
authorized under the license renewal application’s consent provision because of Hall’s past
violation of Michigan’s child care rules. Assuming arguendo that the majority correctly
interprets the consent provision to apply by its terms to the entire house, the second search fails
to meet the provision’s own reasonable and necessary standard. Under the majority’s reading of
the provision, Hall’s February 18, 2010, violation justified a warrantless, on-demand search of
the entirety of Hall’s private residence over a year later, on May 24, 2011—even though there
was no allegation that Hall was hiding children at this time. The implication of this broad
reading is that Hall’s initial violation of the rules would justify any subsequent warrantless
search for hidden children, no matter how removed from the original complaint. As “searches
and seizures inside a home without a warrant are presumptively unreasonable,” Groh v. Ramirez,
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540 U.S. 551, 559 (2004), such a broad construction of the consent provision is objectively
unreasonable.
Unlike the first search, the second search followed an anonymous complaint that Hall
was operating her group child care home without an assistant caregiver; the complaint did not
include an allegation that Hall was hiding children or was out of ratio. Upon entering the child
care home, Sweet and Sinnamon observed that, contrary to the complaint, there was an assistant
caregiver present. Despite Hall’s apparent compliance with the rules, Sweet and Sinnamon
conducted a second inspection of the Hall family’s private residence areas searching for hidden
children. The majority’s approval of this search based on the consent provision suggests that the
consent provision authorizes DHHS employees to conduct warrantless searches of the private
areas of a child care home so long as a licensee has ever been in violation of the licensing rules.
In other words, because Hall was once found to be over-capacity, DHHS employees were free to
search her private residence areas whenever they wanted. This construction of the consent
provision is not reasonable. Thus, the warrantless search cannot be justified under the consent
provision, and was not reasonable under the Fourth Amendment.
Further, I disagree with the majority’s conclusion that the law was not clearly established
as to whether social workers are subject to the Fourth Amendment’s warrant requirements. The
majority correctly identifies Andrews as the controlling precedent on this issue. There, this court
reaffirmed that to determine whether there was a clearly established right, “a district court looks
to binding precedent by the Supreme Court, its court of appeals or itself.” Andrews v. Hickman
Cty., Tenn., 700 F.3d 845, 862 n.7 (6th Cir. 2012). “[W]e look first to decisions of the Supreme
Court, then to our own decisions and those of other courts within the circuit, and then to
decisions of other Courts of Appeal.” Id. at 853. As the majority notes, the Western District of
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Michigan, where this case originated, held in 2004 that “the Fourth Amendment applies to
[social workers], as it does to all other officers and agents of the state[.] . . . There is . . . no social
worker exception to the strictures of the Fourth Amendment.’” O’Donnel v. Brown, 335 F.
Supp. 2d 787, 802 (W.D. Mich. 2004) (internal quotation marks omitted). Since O’Donnel
predated the challenged searches, it is sufficient to create a clearly established constitutional right
in this context. This is especially true considering many other circuits had already decided that
social workers are not exempt from the Fourth Amendment. See, e.g., Gates v. Texas Dep’t of
Protective & Regulatory Servs., 537 F.3d 404, 420 (5th Cir. 2008) (“We begin by noting that it is
well established in this circuit that the Fourth Amendment regulates social workers’ civil
investigations.”); Doe v. Heck, 327 F.3d 492, 509 (7th Cir. 2003) (“Thus, the strictures of the
Fourth Amendment apply to child welfare workers, as well as all other governmental
employees.”); Roska v. Peterson, 328 F.3d 1230, 1242 (10th Cir. 2003) (“Measured against this
parental interest, the state’s interest in protecting children does not excuse social workers from
the warrant requirement of the Fourth Amendment.”); Calabretta v. Floyd, 189 F.3d 808, 816
(9th Cir. 1999) (“[Precedent] does not hold that the social worker may enter the home despite the
absence of consent or exigency.”); Lenz v. Winburn, 51 F.3d 1540 (11th Cir. 1995); Wildauer v.
Frederick Cty., 993 F.2d 369, 372 (4th Cir. 1993) (applying the Fourth Amendment to social
workers but adding that lesser scrutiny applies to non-criminal “investigative home visits”). This
large body of circuit authority, coupled with at least one case from the Western District of
Michigan, clearly established at the time of the searches that social workers are subject to the
Fourth Amendment’s strictures.
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Because the second search violated Hall’s clearly established Fourth Amendment rights, I
would affirm the district court’s denial of qualified immunity as to that search and remand for
further proceedings.
Case: 15-2326 Document: 43-2 Filed: 12/16/2016 Page: 25 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_16-cv-00179/USCOURTS-cand-3_16-cv-00179-0/pdf.json | [
[
"Performant Recovery, Inc.",
"Defendant"
],
[
"Andrea Christine Smith",
"Plaintiff"
]
] | 1
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1476651.1 12344-076 1 Case No. 3:16-cv-00179-WHO
JOINT STIPULATION AND ORDER TO EXTEND TIME TO CONDUCT CLASS DISCOVERY
AND DEADLINES FOR CLASS CERTIFICATION MOTION
JUNE D. COLEMAN, State Bar No. 191890
[email protected]
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
400 Capitol Mall, 27th Floor
Sacramento, California 95814
Telephone: (916) 321-4500
Facsimile: (916) 321-4555
Attorneys for Defendant PERFORMANT
RECOVERY, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION
ANDREA CHRISTINE SMITH, an
individual, on behalf of herself and those
similarly situated,
Plaintiffs,
v.
PERFORMANT RECOVERY, INC., a
California corporation,
Defendant.
Case No. 3:16-cv-00179-WHO
JOINT STIPULATION AND
ORDER TO EXTEND TIME TO
CONDUCT CLASS DISCOVERY AND
DEADLINES FOR CLASS
CERTIFICATION MOTION
The Hon. William H. Orrick
Trial Date: TBD
The parties jointly apply for an order modifying the April 12, 2016 Scheduling Order in
accordance with Federal Rule of Civil Procedure 16(b)(4). It is hereby stipulated by both Plaintiff
ANDREA CHRISTINE SMITH and Defendant PERFORMANT RECOVERY, INC., through
their respective counsel of record, the following:
1) The parties are conducting a private mediation on August 9, 2016, and want to
delay depositions related to class discovery until after the mediation is conducted.
2) If the parties fail to reach a settlement during the August 9, 2016 mediation,
Plaintiff's counsel intends to associate in another counsel to address class issues.
3) If the parties fail to reach a settlement during the August 9, 2016 mediation,
Plaintiff will be deposed on August 10, 2016.
4) Good cause exists to extend the Deadline to conduct class discovery from August
Case 3:16-cv-00179-WHO Document 38 Filed 07/26/16 Page 1 of 4
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1476651.1 12344-076 2 Case No. 3:16-cv-00179-WHO
JOINT STIPULATION AND ORDER TO EXTEND TIME TO CONDUCT CLASS DISCOVERY
AND DEADLINES FOR CLASS CERTIFICATION MOTION
7, 2016, to August 22, 2016.
5) Good cause exists to extend the deadline to file and respond to a Motion for Class
Certification as follows:
Deadline to File Motion for Class Certification moves from September 7, 2016, to
September 21, 2016
Deadline to File Opposition to Motion for Class Certification moves from
September 28, 2016, to October 12, 2016
Deadline to File Reply Brief in Support of Motion for Class Certification moves
from October 5, 2016, to October 19, 2016
Hearing Date for Motion for Class Certification and Subsequent Case Management
Conference moves from October 19, 2016, to November 2, 2016
Federal Rule of Civil Procedure 16(b)(4) provides that a court may modify a scheduling
order for good cause. Here, the parties have agreed to extend class discovery by two weeks to
allow the parties to mediate prior to the expense of depositions. The mediator's earliest
availability was in August, and therefore, the mediation could not have been scheduled earlier,
especially given defense counsel's health issues. Incurring the expense of further discovery prior
to the mediation to meet the class discovery deadline could inhibit the ability of the parties to
settle this matter. Discovery has been slower than anticipated, in part because of defense counsel's
health issues. The dates associated with the Motion for Class Certification should also be
extended an additional 2 weeks to reflect the additional time extended for class discovery.
This Court has granted one other request for continuance to extend the deadline to conduct
the mediation to accommodate the health issues of defense counsel. The parties have not delayed
in seeking this extension, especially since the Court's Order was issued a few days before defense
counsel's emergency surgery and defense counsel recently returned to her office from disability
leave.
For these reasons, the parties jointly request that the Court adopt the following deadlines:
Close of Class Discovery August 22, 2016
Deadline to File Motion for Class Certification September 21, 2016
Deadline to File Opposition to Motion for Class Certification October 12, 2016
Deadline to File Reply Brief for Motion for Class Certification October 19, 2016
Case 3:16-cv-00179-WHO Document 38 Filed 07/26/16 Page 2 of 4
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1476651.1 12344-076 3 Case No. 3:16-cv-00179-WHO
JOINT STIPULATION AND ORDER TO EXTEND TIME TO CONDUCT CLASS DISCOVERY
AND DEADLINES FOR CLASS CERTIFICATION MOTION
Hearing Date for Motion for Class Certification November 2, 2016
and Subsequent Case Management Conference November 2, 2016
Dated: July 25, 2016 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
By: /s/ June D. Coleman
June D. Coleman
Attorneys for Defendant PERFORMANT
RECOVERY, INC.
Dated: July 26, 2016 GESUND & PAILET, LLC
By: /s/ Keren E. Gesund
Keren E. Gesund
Attorneys for Plaintiff ANDREA CHRISTINE
SMITH
ORDER
PURSUANT TO THE STIPULATION, IT IS SO ORDERED THAT the scheduling order
be amended as follows:
Close of Class Discovery August 22, 2016
Deadline to File Motion for Class Certification September 21, 2016
Deadline to File Opposition to Motion for Class Certification October 12, 2016
Deadline to File Reply Brief for Motion for Class Certification October 19, 2016
Hearing Date for Motion for Class Certification November 2, 2016
Case 3:16-cv-00179-WHO Document 38 Filed 07/26/16 Page 3 of 4
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1476651.1 12344-076 4 Case No. 3:16-cv-00179-WHO
JOINT STIPULATION AND ORDER TO EXTEND TIME TO CONDUCT CLASS DISCOVERY
AND DEADLINES FOR CLASS CERTIFICATION MOTION
and Subsequent Case Management Conference November 2, 2016
IT IS SO ORDERED.
DATED: _______________, 2016
HON. WILLIAM H. ORRICK
Case 3:16-cv-00179-WHO Document 38 Filed 07/26/16 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-19-12971/USCOURTS-ca11-19-12971-0/pdf.json | [
[
"Cedric Derrell Davenport",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12971
Non-Argument Calendar
________________________
D.C. Docket No. 1:19−cr−00003−DHB−BKE−1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC DERRELL DAVENPORT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(March 13, 2020)
Before MARTIN, ROSENBAUM and LUCK, Circuit Judges.
PER CURIAM:
USCA11 Case: 19-12971 Date Filed: 03/13/2020 Page: 1 of 2
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Richard Pacheco, appointed counsel for Cedric Davenport in this direct
criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967).
Our independent review of the entire record reveals that counsel’s assessment of
the relative merit of the appeal is correct. Because independent examination of the
entire record reveals no arguable issues of merit, counsel’s motion to withdraw is
GRANTED, and Davenport’s conviction and sentence are AFFIRMED.
USCA11 Case: 19-12971 Date Filed: 03/13/2020 Page: 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-arwd-5_05-cv-05214/USCOURTS-arwd-5_05-cv-05214-3/pdf.json | [
[
"Faught",
"Defendant"
],
[
"Fields",
"Defendant"
],
[
"Steven E. Wanbaugh",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
STEVEN E. WANBAUGH PLAINTIFF
v. Civil No. 05-5214
OFFICER FIELDS, Fayetteville
Police Department; and OFFICE
FAUGHT, Fayetteville Police
Department DEFENDANTS
O R D E R
Now on this 23rd day of August, 2007, comes on for
consideration the Report and Recommendation of the Magistrate
Judge, Hon. James R. Marschewski (document #18, filed August 1,
2007), in this matter, to which no objections have been filed, and
the Court, having carefully reviewed said Report and
Recommendation, finds that it is sound in all respects, and that
it should be adopted in toto.
IT IS THEREFORE ORDERED that the Magistrate Judge's Report
and Recommendation is adopted in toto.
IT IS FURTHER ORDERED that, for the reasons stated in the
Magistrate Judge's Report and Recommendation, defendants' motion
for summary judgment is hereby denied.
IT IS SO ORDERED.
/s/Jimm Larry Hendren
HON. JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
Case 5:05-cv-05214-JRM Document 19 Filed 08/23/07 Page 1 of 1 PageID #: <pageID> |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_06-cv-00627/USCOURTS-caed-2_06-cv-00627-0/pdf.json | [
[
"Jose Luis Lopez Moctezuma",
"Petitioner"
],
[
"James A. Yates",
"Respondent"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JOSE LUIS LOPEZ MOCTEZUMA, No. CIV S-06-0627-FCD-CMK-P
Petitioner,
vs. ORDER
JAMES A. YATES,
Respondent.
/
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s application
for leave to proceed in forma pauperis (Docs. 2 & 6). Petitioner has not, however, submitted a
“. . . certification from the warden or other appropriate officer of the place of confinement
showing the amount of money or securities that the petitioner has in any account in the
institution” as required by Rule 3(a)(2) of the Federal Rules Governing Section 2254 Cases.
Petitioner will be provided the opportunity to submit the required certification or the appropriate
filing fee. Petitioner is warned that failure to comply with this order may result in the dismissal
of this action. See Local Rule 11-110.
/ / /
Case 2:06-cv-00627-FCD-CMK Document 8 Filed 04/06/06 Page 1 of 2
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Petitioner has also requested the appointment of counsel. There currently exists
no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105
F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of
counsel at any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R.
Governing § 2254 Cases. In the present case, the court does not find that the interests of justice
would be served by the appointment of counsel at the present time.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner shall submit within 30 days of the date of this order, a
certification as required by Rule 3(a)(2), or the appropriate filing fee; and
2. Petitioner’s request for appointment of counsel is denied without
prejudice.
DATED: April 5, 2006.
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
Case 2:06-cv-00627-FCD-CMK Document 8 Filed 04/06/06 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_07-mj-00001/USCOURTS-caed-1_07-mj-00001-1/pdf.json | [
[
"Jorge Isaac Ortega Hernandez",
"Defendant"
],
[
"USA",
"Plaintiff"
]
] | AO 245B-CAED (Rev. 3/04) Sheet 1 - Judgment in a Criminal Case
United States District Court
Eastern District of California
UNITED STATES OF AMERICA
v.
JORGE ISAAC ORTEGA HERNANDEZ
JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November 1, 1987)
Case Number: 1:07-MJ-00001-001
S. Betz, AFD
Defendant’s Attorney
THE DEFENDANT:
[U] pleaded guilty to count(s): 2, 3(amended), 4 and 6 of the Complaint .
[ ] pleaded nolo contendere to counts(s) which was accepted by the court.
[ ] was found guilty on count(s) after a plea of not guilty.
ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offense(s):
Date Offense Count
Title & Section Nature of Offense Concluded Number(s)
36 C.F.R. 2.32(a)(1) INTERFERING with an AGENCY FUNCTION 12/30/2006 TW O
36 C.F.R. 4.2 and CVC 23103
and 23103.5(a)
RECKLESS DRIVING AFTER CONSUMING
ALCOHOL
12/30/2006 THREE
(amended)
36 C.F.R. 4.23(c)(2) REFUSAL to TAKE TEST 12/30/2006 FOUR
36 C.F.R. 4.14(b) POSSESSION of an OPEN CONTAINER in a
MOTOR VEHICLE
12/30/2006 SIX
The defendant is sentenced as provided in pages 2 through 5 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
[ ] The defendant has been found not guilty on counts(s) and is discharged as to such count(s).
[U] Count(s) 1, 5, 7, and 8 of the Complaint (is)(are) dismissed on the motion of the United States.
[ ] Indictment is to be dismissed by District Court on motion of the United States.
[ ] Appeal rights given. [U] Appeal rights waived.
IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney for this district within 30
days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments
imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States
attorney of material changes in economic circumstances.
FEBRUARY 22, 2007
Date of Imposition of Judgment
/s/ Sandra M. Snyder
Signature of Judicial Officer
SANDRA M. SNYDER, United States Magistrate Judge
Name & Title of Judicial Officer
3/5/2007
Date
Case 1:07-mj-00001-LJO Document 13 Filed 03/05/07 Page 1 of 5
AO 245B-CAED (Rev. 3/04) Sheet 4 - Probation
CASE NUMBER: 1:07-MJ-00001-001 Judgment - Page 2 of 5
DEFENDANT: JORGE ISAAC ORTEGA HERNANDEZ
UNSUPERVISED PROBATION
The defendant is hereby sentenced to UNSUPERVISED probation for a term of 24 MONTHS .
The defendant shall not commit another federal, state, or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of controlled
substance. The defendant shall submit to one drug test within 15 days of release on probation and at least two periodic drug tests
thereafter, not to exceed four (4) drug tests per month.
[ ] The above drug testing condition is suspended based on the court's determination that the defendant poses a low risk of
future substance abuse. (Check, if applicable.)
[ ] The defendant shall not possess a firearm, destructive device, or any other dangerous weapon. (Check, if applicable.)
[ ] The defendant shall submit to the collection of DNA as directed by the probation officer. (Check, if applicable.)
[ ] The defendant shall register and comply with the requirements in the federal and state sex offender registration agency in the
jurisdiction of conviction, Eastern District of California, and in the state and in any jurisdiction where the defendant resides, is
employed, or is a student. (Check, if applicable.)
[ ] The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)
If this judgment imposes a fine or a restitution obligation, it is a condition of supervised release that the defendant pay in accordance
with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions
on the attached page.
(NOT APPLICABLE) STANDARD CONDITIONS OF SUPERVISION
1) the defendant shall not leave the judicial district without permission of the court or probation officer;
2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days
of each month;
3) the defendant shall answer truthfully all inquiries by the probation officer and follow instructions of the probation officer;
4) the defendant shall support his or her dependants and meet other family responsibilities;
5) the defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training or other
acceptable reasons;
6) the defendant shall notify the probation officer ten days prior to any change in residence or employment;
7) the defendant shall refrain from excessive use of alcohol;
8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9) the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted
of a felony unless granted permission to do so by the probation officer;
10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere, and shall permit confiscation of
any contraband observed in plain view by the probation officer;
11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement
officer;
12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without
the permission of the court;
13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's
criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to
confirm the defendant's compliance with such notification requirement.
Case 1:07-mj-00001-LJO Document 13 Filed 03/05/07 Page 2 of 5
AO 245B-CAED (Rev. 3/04) Sheet 4 - Probation
CASE NUMBER: 1:07-MJ-00001-001 Judgment - Page 3 of 5
DEFENDANT: JORGE ISAAC ORTEGA HERNANDEZ
SPECIAL CONDITIONS OF SUPERVISION
1. Defendant shall obey all laws (local, state and federal).
2. Defendant shall pay a Fine of $2,000.00 and a Special Assessment of $40.00 ($10.00 for each
count) for a Total of $2,040.00, payable at $100.00 a month, commencing on April 1, 2007 and
due payable on the First of each month until paid in full. Payments to be made to Clerk,
U.S.D.C., and mailed to Clerk, U.S.D.C., 2500 Tulare Street, Room 1501, Fresno, California
93721.
3. Defendant is ordered to attend AA meetings and to continue attending AA & NA meetings.
First year of probation defendant is to attend at least three (3) meetings per week. Second year
of probation, defendant shall attend at least one meeting per week.
4. Defendant shall provide written proof of attending AA meetings to the Federal Defenders
Office.
5. Defendant shall report any new arrest to the Clerk of the Court and his attorney.
6. STATUS CONFERENCE Hearing set for December 20, 2007 at 10:00a.m., defendants
appearance is waived with proof to the Federal Defenders Office of his attending AA meetings.
7. Defendant is given FIVE (5) days custody, with Credit for Time Served of Five (5) days.
Case 1:07-mj-00001-LJO Document 13 Filed 03/05/07 Page 3 of 5
AO 245B-CAED (Rev. 3/04) Sheet 5 - Criminal Monetary Penalties
CASE NUMBER: 1:07-MJ-00001-001 Judgment - Page 4 of 5
DEFENDANT: JORGE ISAAC ORTEGA HERNANDEZ
** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses
committed on or after September 13, 1994, but before April 23, 1996.
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the Schedule of Payments on Sheet 6.
Assessment Fine Restitution
Totals: $ 40.00 $ 2,000.00 $
[ ] The determination of restitution is deferred until . An Amended Judgment in a Criminal Case (AO 245C) will be entered
after such determination.
[ ] The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless
specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i),
all nonfederal victims must be paid before the United States is paid.
Name of Payee Total Loss* Restitution Ordered Priority or Percentage
TOTALS: $ $
[] Restitution amount ordered pursuant to plea agreement $
[ ] The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full
before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet
6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
[ ] The court determined that the defendant does not have the ability to pay interest and it is ordered that:
[ ] The interest requirement is waived for the [ ] fine [ ] restitution
[ ] The interest requirement for the [ ] fine [ ] restitution is modified as follows:
Case 1:07-mj-00001-LJO Document 13 Filed 03/05/07 Page 4 of 5
AO 245B-CAED (Rev. 3/04) Sheet 6 - Schedule of Payments
CASE NUMBER: 1:07-MJ-00001-001 Judgment - Page 5 of 5
DEFENDANT: JORGE ISAAC ORTEGA HERNANDEZ
Payments shall be applied in the following order: (1) assessment; (2) restitution principal; (3) restitution interest, (4) fine
principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including costs of prosecution and court
costs.
SCHEDULE OF PAYMENTS
Payment of the total fine and other criminal monetary penalties shall be due as follows:
A [U] Lump sum payment of $ 2,040.00 due immediately, balance due
[ ] not later than , or
[U] in accordance with [ ] C, [ ] D, [ ] E, or [U] F below; or
B [ ] Payment to begin immediately (may be combined with [ ] C, [ ] D, or [ ] F below); or
C [ ] Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years),
to commence (e.g., 30 or 60 days) after the date of this judgment; or
D [ ] Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years),
to commence (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or
E [ ] Payment during the term of supervised release will commence within (e.g., 30 or 60 days) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time;
or
F [U] Special instructions regarding the payment of criminal monetary penalties:
Defendant shall pay a Fine of $2,000.00 and a Special Assessment of $40.00 ($10.00 for each count) for a Total of
$2,040.00, payable at $100.00 a month, commencing on April 1, 2007 and due payable on the First of each month
until paid in full. Payments to be made to Clerk, U.S.D.C., and mailed to Clerk, U.S.D.C., 2500 Tulare Street,
Room 1501, Fresno, California 93721.
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary
penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau
of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
[ ] Joint and Several
Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several
Amount, and corresponding payee, if appropriate:
[ ] The defendant shall pay the cost of prosecution.
[ ] The defendant shall pay the following court cost(s):
[ ] The defendant shall forfeit the defendant’s interest in the following property to the United States:
Case 1:07-mj-00001-LJO Document 13 Filed 03/05/07 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caDC-02-01335/USCOURTS-caDC-02-01335-0/pdf.json | [
[
"Aldworth Company, Inc.",
"Petitioner"
],
[
"National Labor Relations Board",
"Respondent"
]
] | Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2003 Decided April 2, 2004
No. 02-1334
DUNKIN8 DONUTS MID–ATLANTIC DISTRIBUTION CENTER, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED FOOD AND COMMERCIAL WORKERS UNION,
LOCAL NO. 1360,
INTERVENOR
Consolidated with
Nos. 02–1335 and 02–1369
On Petitions for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
USCA Case #02-1335 Document #813679 Filed: 04/02/2004 Page 1 of 8
2
Mark Peters argued the cause for petitioner Dunkin8 Donuts Mid–Atlantic Distribution Center, Inc. With him on the
briefs was Alison J. Little.
Ronald I. Tisch argued the cause for petitioner Aldworth
Company, Inc. With him on the briefs were Peter A. Susser
and Jason Branciforte.
William M. Bernstein, Senior Attorney, National Labor
Relations Board, argued the cause for respondent. With him
on the brief were Arthur F. Rosenfeld, General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Margaret A.
Gaines, Supervisory Attorney.
Before: GINSBURG, Chief Judge, RANDOLPH and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: These petitions for review, and
the National Labor Relations Board’s cross-petition for enforcement, primarily raise fact-bound issues relating to the
Board’s finding of joint employer status and its issuance of a
bargaining order.
Dunkin8 Donuts Mid–Atlantic Distribution Center, Inc.
shipped products from its warehouse in Swedesboro, New
Jersey, to retail Dunkin8 Donuts stores. Aldworth Company,
Inc. leased 63 drivers and 40 to 45 warehouse employees to
Dunkin8. In early 1998, the United Food and Commercial
Workers Union Local 1360 began an organizational campaign
among the Aldworth employees. Aldworth, after becoming
aware of the union’s activity, undertook extensive efforts to
defeat it. Among other actions, Aldworth solicited employee
grievances and promised to adjust them; promised employees
more benefits and other favors; threatened employees, telling
them they would start with nothing if the union came in;
solicited employees to report whether the union was bothering or harassing them; threatened employees with the loss of
their jobs and their 401(k) plan if they supported the union;
ordered employees to remove their union pins; warned employees about less favorable working conditions if they unionUSCA Case #02-1335 Document #813679 Filed: 04/02/2004 Page 2 of 8
3
ized; coercively interrogated an employee about his union
activity and promised to refrain from discharging him if he
stopped supporting the union; and told another employee
that his suspension was a consequence of his supporting the
union. In addition, Aldworth discharged and suspended
many employees and retaliated against others because of
their union activities.
In the meantime, the union managed to procure authorization cards from 58 of the 109 employees in the unit. See
NLRB v. Gissel Packing Co., 395 U.S. 575, 601–10 (1969).
The cards, as signed by each of these employees, stated that
‘‘I hereby authorize [the union] to represent me for purposes
of collective bargainingTTTT’’ When the union requested
recognition, Aldworth refused. The union then filed a representation petition. The election, held in September 1998,
resulted in 48 votes against the union and 45 in favor.
Aldworth’s anti-union activities continued after the election.
The Board, agreeing with the Administrative Law Judge,
ruled that Aldworth and Dunkin8 Donuts were joint employers; that the companies had committed numerous violations
of § 8(a)(1) and (a)(3) of the National Labor Relations Act, 29
U.S.C. § 158(a)(1) & (a)(3), some of which are described
above; and that Aldworth had violated § 8(a)(1) and (a)(5) by
refusing to recognize and bargain with the union while engaging in conduct that illegally undermined the union’s support
and prevented a fair rerun election. Among other remedies,
the Board ordered Aldworth and Dunkin8 Donuts to offer
reinstatement to employees illegally discharged; to make
whole employees who suffered losses; to purge the files of
employees who suffered illegal discharges or discipline; and
to post remedial notices. The Board also ordered Aldworth
to bargain with the union on request.
The case comes to us in an odd posture. Aldworth no
longer has any presence at the Swedesboro warehouse. Its
contract with Dunkin8 Donuts ended on December 31, 2000,
after the ALJ’s decision but before the Board’s. (The ALJ
issued his decision on April 20, 2000; the Board issued its
decision and order on September 30, 2002.) The administraUSCA Case #02-1335 Document #813679 Filed: 04/02/2004 Page 3 of 8
4
tive docket contains an entry indicating that Aldworth’s attorney wrote to the Board on November 30, 2000, advising it of
the forthcoming cancellation of its contract. At oral argument, counsel for Aldworth stated that the letter went to the
Board’s Executive Director, who informed Aldworth by letter
a few days later that he would not forward it to the Board.
The letters are not in the record. Neither Aldworth nor
Dunkin8 Donuts filed a motion to reopen the record and, so
far as appears, neither company took any other action to alert
the Board to Aldworth’s departure. The Board thus decided
this case without knowing that Aldworth no longer had a
contract with Dunkin8 Donuts. Neither company has raised
the issue whether the Executive Director erred in not forwarding Aldworth’s letter to the Board. We therefore will
review the Board’s decision only on the basis of the evidence
the Board had before it. One further development needs to
be mentioned. Between May 2000 and February 2002 the
union filed numerous additional charges against Aldworth and
Dunkin8 Donuts. After the Board’s General Counsel issued a
complaint, the companies entered into settlement agreements.
In its agreement, Dunkin8 Donuts admitted that it was a
successor to Aldworth and promised to recognize and bargain
with the union if we enforce the Board’s order in this case.
See NLRB v. Burns Sec. Servs., 406 U.S. 272, 277–81 (1972);
Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184–87
(1973).
With respect to many of the unfair labor practices, the
companies argue that the Board’s findings are not supported
by substantial evidence. No useful purpose would be served
by reciting the details of each charge and the Board’s response. Our review of the record shows that all of the
contested unfair labor practices discussed in the Board’s (and
the ALJ’s) opinion had sufficient evidentiary support. The
only serious questions are whether Aldworth and Dunkin8
Donuts were joint employers and whether the Board properly
ordered Aldworth to bargain.
On the subject of joint employers, Dunkin8 Donuts claims
that under Goodyear Tire & Rubber Co., 312 N.L.R.B. 674,
688–89 (1993), the union waived its right to make such a claim
USCA Case #02-1335 Document #813679 Filed: 04/02/2004 Page 4 of 8
5
when it named only Aldworth in its representation petition, in
its election stipulation and in its initial unfair labor practice
charges. The Board ruled that in light of the union’s omissions, Goodyear relieved Dunkin8 of any bargaining obligation
but it did not relieve the company of responsibility for the
unfair labor practices as a joint employer. (Dunkin8 was later
named as a respondent to those charges.) The Board’s view
of Goodyear must be sustained. Goodyear held only that
when a union, knowing the relationship between two companies, deliberately names only one of the companies in its
representation petition and its stipulation for an election, and
requests bargaining only with that company, it may not later
substitute another company. Goodyear Tire & Rubber Co.,
312 N.L.R.B. at 688–89.
Two separate entities may be joint employers of ‘‘a single
same workforce if they ‘share or co-determine those matters
governing essential terms and conditions of employment.’ ’’
Aldworth Co., 338 N.L.R.B. No. 22, at 3 (Sept. 30, 2002),
quoting NLRB v. Browning-Ferris Indus., 691 F.2d 1117,
1124 (3d Cir. 1982). This is ‘‘essentially a factual issue.’’
Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964). The
evidence here fully supports the Board’s finding that Dunkin8 Donuts ‘‘was, to varying degrees, involved in decisions
relating to employment tenure, discipline, assignment of
work and equipment, recognition and awards, and day-to-day
direction of the leased employees.’’ 338 N.L.R.B. No. 22, at
4. Dunkin8 Donuts’ transportation manager received and
sometimes administered driver applicant road tests, interviewed driver applicants, prevented the hiring of applicants
he did not approve, selected and assigned employees to
permanent routes, selected the vehicles they would use, directed them to make special deliveries, made other work
assignments, and handled complaints about the drivers, consulting with Aldworth about their discipline or speaking directly to the drivers. Dunkin8 Donuts’ warehouse supervisor
tested warehouse applicants, reported his opinion about their
qualifications, which Aldworth generally followed, and personally fired one employee. Dunkin8 Donuts also determined Aldworth employee wage and benefit rates by specifyUSCA Case #02-1335 Document #813679 Filed: 04/02/2004 Page 5 of 8
6
ing, in the parties’ ‘‘cost-plus’’ lease agreement, the rates it
would reimburse Aldworth. Aldworth discontinued an employee bonus program after Dunkin8 Donuts said it would no
longer endorse the program. And Dunkin8 Donuts’ transportation manager developed, in significant part, the rating
categories used to determine whether drivers received incentive awards. In addition, as the Board found, Dunkin8 Donuts played a key role in some of the events that the Board
ultimately found to be unfair labor practices. 338 N.L.R.B.
No. 22, at 4.
More could be written, but the foregoing recital is enough
to show why substantial evidence on the record as a whole
backs up the Board’s finding that Dunkin8 Donuts was a joint
employer. See Universal Camera Corp. v. NLRB, 340 U.S.
474 (1951).
At oral argument, counsel for Dunkin8 Donuts claimed that
the Board improperly relied on some of these indicia of
common control. The Board held that ‘‘actions taken pursuant to government statutes and regulations are not indicative
of joint employer status, and that the ALJ therefore erred in
considering Dunkin8 Donuts’ ‘‘role in interpreting government
rules relating to interstate commerce [and] its inclusion of
employees with its 401(k) plan TTT as indice[s] of joint employer status.’’ 338 N.L.R.B. No. 22, at 3. Although counsel
asserted in oral argument that in some instances the actions
Dunkin8 Donuts took with respect to the employees merely
fulfilled its obligations under federal health and safety regulations, we do not know which particular regulations – or how
many of the Board’s ‘‘indices’’ of common control – counsel
had in mind. We do not know this because Dunkin8 Donuts
made no such argument in its opening brief or, for that
matter, in its reply brief. Rule 28(a)(9)(A) of the Federal
Rules of Appellate Procedure provides that the argument
portion of an appellant’s opening brief ‘‘must contain’’ the
‘‘appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the
appellant relies.’’ We have enforced this rule before and we
do so here again. See, e.g., Carducci v. Regan, 714 F.2d 171,
177 (D.C. Cir. 1983); Rollins Envtl. Servs. (NJ) Inc. v. EPA,
USCA Case #02-1335 Document #813679 Filed: 04/02/2004 Page 6 of 8
7
937 F.2d 639, 652 n.2 (D.C. Cir. 1991); Barrick Gold Strike
Mines Inc. v. Browner, 215 F.3d 45, 48 (D.C. Cir. 2000).
The remaining question deals with the validity of the
Board’s order that Aldworth (or its successor) bargain with
the union upon request. ‘‘[B]ecause circumstances TTT may
change during the interval between the occurrence of the
employer’s unfair labor practices and the Board’s disposition
of a case, there is an obvious danger that a bargaining order
that is intended to vindicate the rights of past employees will
infringe upon the rights of the current ones to decide whether
they wish to be represented by a union.’’ Flamingo HiltonLaughlin v. NLRB, 148 F.3d 1166, 1170-71 (D.C. Cir. 1998)
(citation omitted). The law of this circuit is that the Board
must determine whether a bargaining order is warranted in
light of the circumstances existing at the time it would enter
the order, even if the union had, at one time, achieved
majority status through authorization cards. Id. To this
end, we have required the Board to take into account employee turnover. See Douglas Foods Corp. v. NLRB, 251 F.3d
1056, 1066 (D.C. Cir. 2001); Avecor, Inc. v. NLRB, 931 F.2d
924, 937 (D.C. Cir. 1991).
Here, the Board found the anti-union conduct ‘‘so pervasive
as to have created a corporate culture of lawlessness.’’ 338
N.L.R.B. No. 22, at 16. ‘‘[W]hile some employees may have
voluntarily departed their jobs, those who remain will doubtless share this history with newcomers.’’ Id. It is true that
before the September 1998 election there had been a high
percentage of turnover among the drivers and warehouse
employees at the Swedesboro facility. But the record also
showed that, in the words of the ALJ, there was ‘‘a core of
steady employees with whom the experience of [the companies’] unlawful conduct will remain.’’ Id. at 96. Neither
Aldworth nor Dunkin8 Donuts challenges this finding or the
Board’s conclusion that the core employees will likely share
their pre- and post-election experience with new employees.
The Board thus provided a sufficient explanation for its
determination that ‘‘an affirmative bargaining order is necessary to remedy the TTT unfair labor practices.’’ Id. at 16.
USCA Case #02-1335 Document #813679 Filed: 04/02/2004 Page 7 of 8
8
One last word is in order. In addition to employee turnover and the passage of time, we have required the Board to
consider the effects of any changes in management. See
Flamingo Hilton-Laughlin, 148 F.3d at 1171-73; Somerset
Welding & Steel, Inc. v. NLRB, 987 F.2d 777, 781 (D.C. Cir.
1993). But as mentioned earlier, neither Aldworth nor Dunkin8 Donuts ever properly moved to reopen the record in
order to place before the Board the fact that Aldworth’s
management contract ended on December 31, 2000 – twenty
one months before the Board’s order. We thus express no
opinion about whether the bargaining order would have been
sustainable if that fact had been before the Board.
The petitions for judicial review are denied and the Board’s
cross-petition for enforcement is granted.
So ordered.
USCA Case #02-1335 Document #813679 Filed: 04/02/2004 Page 8 of 8 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca7-13-01441/USCOURTS-ca7-13-01441-0/pdf.json | [
[
"Juan M. Gonzalez-Ruiz",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | In the
United States Court of Appeals
For the Seventh Circuit
Nos. 13-1353 & 13-1441
UNITED STATES OF AMERICA,
Plaintiff-Appellee/Cross-Appellant,
v.
JUAN M. GONZALEZ-RUIZ,
Defendant-Appellant/Cross-Appellee.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 12-cr-28-wmc — William M. Conley, Chief Judge.
ARGUED APRIL 2, 2014 — DECIDED JULY 24, 2015
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Juan M. Gonzalez-Ruiz was charged
with possessing a firearm as a felon after police in Fitchburg,
Wisconsin, found two handguns in his car during a routine
traffic stop. He moved to suppress the guns, but the district
court denied the motion, finding that he consented to the
Case: 13-1441 Document: 56 Filed: 07/24/2015 Pages: 8
2 Nos. 13-1353 & 13-1441
search. Gonzalez-Ruiz then entered a conditional guilty plea,
reserving the right to appeal the denial of suppression.
At sentencing the government sought an enhanced penalty
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), based on Gonzalez-Ruiz’s criminal history. His record
includes convictions for aggravated assault, aggravated
battery, possession of a sawed-off shotgun, and conspiracy to
commit armed robbery. Gonzalez-Ruiz conceded that the first
two crimes qualify as violent felonies under the ACCA, and
we’ve held that the third does not. See United States v. Miller,
721 F.3d 435 (7th Cir. 2013). The government argued that
conspiracy to commit armed robbery is a violent felony under
the “residual clause” of the ACCA, see 18 U.S.C.
§ 924(e)(2)(B)(ii), so that conviction counts as the third predicate for purposes of the Act. The judge disagreed and imposed
a guidelines term of 37 months.
Gonzalez-Ruiz appealed, challenging the denial of his
suppression motion. The government cross-appealed seeking
resentencing under the ACCA. We put the case on hold to
await the Supreme Court’s decision in Johnson v. United States,
which affects the government’s cross-appeal. That decision is
now in; the Court held that the residual clause is unconstitutionally vague. See Johnson v. United States, 135 S. Ct. 2552, 2563
(2015). Accordingly, the government has moved to dismiss the
cross-appeal. That motion is granted. On the remaining issue,
we find no error in the district court’s denial of suppression.
From the perspective of a reasonable officer, Gonzalez-Ruiz’s
words and actions during the traffic stop manifested his
consent to search.
Case: 13-1441 Document: 56 Filed: 07/24/2015 Pages: 8
Nos. 13-1353 & 13-1441 3
I. Background
At about 3 a.m. on October 19, 2011, Sergeant Matthew
Laha of the Fitchburg Police Department stopped GonzalezRuiz after a license-plate check of his car revealed that his
driver’s license was suspended. As Laha initiated the stop,
Officer Peter Johnson arrived on the scene to assist. Much of
the traffic stop was captured by a dash-mounted video camera
in Laha’s patrol vehicle and by his lapel microphone.
Laha approached the driver’s side door and questioned
Gonzalez-Ruiz, then returned to his squad to write a ticket.
While he filled out the ticket, Laha told Johnson that he
intended to ask Gonzalez-Ruiz for consent to search his car.
When Laha finished writing the ticket, he and Johnson walked
back to Gonzalez-Ruiz’s car and asked him to step out. Laha
explained the ticket and asked if Gonzalez-Ruiz had any
questions. Gonzalez-Ruiz said, “no,” and Laha told him,
“You’re free to go, my man.”
As all three men began walking back to their vehicles, Laha
suddenly spun around and called out, “Hey Juan!” GonzalezRuiz answered, “Yeah?” and Laha asked, “You don’t have any
weapons, drugs, anything like that?” Gonzalez-Ruiz replied,
“Oh? No, no. I just, I just left my house.” Laha then asked,
“Mind if I search? Mind if I take a look?” Gonzalez-Ruiz
responded, “You can, you can ... yeah,” then closed his car
door, walked to the rear of his vehicle, and opened his jacket.
Laha did a quick pat-down search and continued to question
Gonzalez-Ruiz: “Nothin’ in your car that you’re concerned
about?” Gonzalez-Ruiz did not respond.
Case: 13-1441 Document: 56 Filed: 07/24/2015 Pages: 8
4 Nos. 13-1353 & 13-1441
A few moments later, Gonzalez-Ruiz took out his cell
phone and asked if he could call his wife, Camille Vasquez, to
have her pick him up.1 Laha replied, “Absolutely!” As Laha
finished the frisk, Gonzalez-Ruiz called Vasquez and began
talking with her in both English and Spanish.
Laha then walked to the side of Gonzalez-Ruiz’s car and
asked again if he could search it: “Nothing in your car that I
should be concerned about? Mind if I take a look?” GonzalezRuiz was speaking quietly on his phone at this point; Laha’s
microphone did not pick up what he was saying. Immediately
after Laha asked this question,however,Gonzalez-Ruiz looked
up at Laha and responded in a louder voice, “I guess,” then
raised his right hand and nodded in affirmation. Laha asked
again, “So we’re good?” Gonzalez-Ruiz did not respond.
Johnson then directed him toward the curb as Laha started the
search. Gonzalez-Ruiz did not object when he saw Laha open
the driver’s-side door to begin the search. Within ten seconds,
Laha found two handguns and ammunition underthe driver’s
seat.
Gonzalez-Ruiz was indicted for possessing a firearm as a
felon. See 18 U.S.C. § 922(g)(1). He moved to suppress the guns,
arguing that he did not consent to the search of his car. He
explained in the motion that when he said “I guess,” he was
not consenting to the search but instead was responding to a
question Vasquez asked him over the phone: “Should I come
and pick you up now?” At the suppression hearing, Vasquez
1 Testimony at the suppression hearing clarified that Vasquez and
Gonzalez-Ruiz have children together but are not married.
Case: 13-1441 Document: 56 Filed: 07/24/2015 Pages: 8
Nos. 13-1353 & 13-1441 5
testified to that effect. Gonzalez-Ruiz did not testify. The
government presentedtestimony from both Laha and Johnson.
The officers said that Gonzalez-Ruiz’s response of “I guess”
was directed at Laha’s question about searching the car.
Based on this testimony and a review of the video and
audio recordings of the stop, a magistrate judge found the
officers’ testimony credible and supported by the recordings.
Accordingly, the magistrate judge recommended that the
district court deny suppression. The district judge adopted the
magistrate judge’s report andrecommendation and denied the
motion to suppress.
Gonzalez-Ruiz then entered a conditional guilty plea
pursuant to a plea agreement, reserving the right to appeal the
denial of the suppression motion. At sentencing the government argued that Gonzalez-Ruiz should be sentenced as an
armed career criminal under the ACCA based on four prior
convictions: a Puerto Rico conviction for aggravated assault; a
Wisconsin conviction for aggravated battery; and Massachusetts convictions for possession of a sawed-off shotgun and
conspiracy to commit armed robbery.Gonzalez-Ruiz conceded
that the first two convictions are ACCA predicates but argued
that the Massachusetts convictions are not. Applying Begay v.
United States, 553 U.S. 137 (2008), the judge concluded that
neither crime qualified as a “violent felony” underthe ACCA’s
residual clause. Without theACCAenhancement, the advisory
imprisonment range underthe sentencing guidelines was 30 to
37 months. The judge imposed a term of 37 months.
As contemplated by the plea agreement, Gonzalez-Ruiz
appealed the denial of suppression. The government crossCase: 13-1441 Document: 56 Filed: 07/24/2015 Pages: 8
6 Nos. 13-1353 & 13-1441
appealed seeking review of the judge’s decision not to apply
the ACCA’s enhanced penalty.
II. Discussion
Gonzalez-Ruiz challenges the district court’s conclusion
that the warrantless search of his car was valid because he
consented to it. See, e.g., Fernandez v. California, 134 S. Ct. 1126,
1131–32 (2014) (noting that the Fourth Amendment generally
requires a warrant to search, but consent is an exception);
United States v. Jackson, 598 F.3d 340, 346 (7th Cir. 2010) (same).
Whether consent was given is a factual issue that we review for
clear error. United States v. $304,980.00 in U.S. Currency,
732 F.3d 812, 819 (7th Cir. 2013). “The consent inquiry focuses
on what is reasonably apparent to a reasonable inquiring
officer so as to furtherthe deterrence rationale of the exclusionary rule.” Id. (internal quotation marks omitted). As for the
district court’s credibility determinations, we will only reject
them if they are completely without foundation. United States
v. Freeman, 691 F.3d 893, 899 (7th Cir. 2012).
We don’t see any error in the district court’s findings on
consent. Gonzalez-Ruiz’s argument for suppression rested
largely on Vasquez’s testimony—more specifically, her claim
that when Gonzalez-Ruiz said “I guess,” he was really responding to her question about picking him up and not to
Laha’s request for permission to search. But Vasquez wasn’t
present at the scene, and the officers who were there testified
that his verbal response “I guess” came in reply to Laha’s
request for consent to search and was accompanied by a wave
Case: 13-1441 Document: 56 Filed: 07/24/2015 Pages: 8
Nos. 13-1353 & 13-1441 7
of the hand and a nod. The district court accepted the officers’
testimony as credible, and that determination gets substantial
deference. United States v. Williams, 209 F.3d 940, 943 (7th Cir.
2000) (explaining that the reviewing court’s deference to
credibility findings is “near absolute”). The district court also
relied on the video and audio recordings, which support the
officers’ testimony. Gonzalez-Ruiz does not question the
contents of the recordings orthe court’s interpretation of them.
Instead, he points to Laha’s unanswered question “So we’re
good?” as proof that his initial response was ambiguous. To the
extent that there was any residual ambiguity, it was eliminated
when Laha began the search and Gonzalez-Ruiz didnot object.
We faced a similar situation in United States v. Price, 54 F.3d 342
(7th Cir. 1995). There a state trooper officer asked a driver for
consent to search his car by saying, “Do you mind if I take a
look?”The driver’s response—“Sure”—was ambiguous in that
it could have meant “Sure, I mind” or “Sure, go ahead.” Id. at
346. Yet we upheld the district court’s finding of consent,
concluding that the “crucial fact” was the driver’s “failure to
protest upon learning that [the trooper] understood his
response as a consent to the search.” Id. So too here. If
Gonzalez-Ruiz did not intend to consent, Laha’s commencement of the search “was the time to make that clear.” Id.
In short, Gonzalez-Ruiz has not left us “with the definite
and firm conviction that a mistake has been committed.” Am.
Boat Co. v. United States, 583 F.3d 471, 483 (7th Cir. 2009)
(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985)). The district court did not clearly err in finding that
Case: 13-1441 Document: 56 Filed: 07/24/2015 Pages: 8
8 Nos. 13-1353 & 13-1441
Gonzalez-Ruiz’s words and actions manifested his consent to
the search.
In the cross-appeal, thegovernment asked us to reverse and
remand for resentencing under the ACCA, which mandates
lengthier sentences for felons who possess firearms and have
previously been convicted of three violent felonies. Compare
18 U.S.C. § 924(e)(1) (imposing a minimum of 15 years) with id.
§ 924(a)(2) (setting a maximum of 10 years). A “violent felony”
under the statute is any crime that has physical force as an
element, id. § 924(e)(2)(B)(i), or “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another,”
§ 924(e)(2)(B)(ii). That last portion has become known as the
“residual clause” of the ACCA. The question in this case is
whether the crime of conspiracy to commit armed robbery is a
predicate violent felony under the residual clause.2
The Supreme Court’s recent decision in Johnson forecloses
application of the ACCA. Johnson held that the residual clause
is void for vagueness and so “imposing an increased sentence
under the residual clause ... violates the Constitution’s
guarantee of due process.” 135 S. Ct. at 2562. In light of Johnson,
the government has moved to dismiss the cross-appeal. We
grant that motion and affirm the judgment.
AFFIRMED.
2
The district court held that Gonzalez-Ruiz’s conviction for possession of
a sawed-off shotgun is not a violent felony under the residual clause,
anticipating our later decision in United States v. Miller, 721 F.3d 435 (7th
Cir. 2013).
Case: 13-1441 Document: 56 Filed: 07/24/2015 Pages: 8 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-06-03303/USCOURTS-ca8-06-03303-0/pdf.json | [
[
"Ji Ying Chen",
"Petitioner"
],
[
"Michael B. Mukasey",
"Respondent"
]
] | 1
Falun Gong is a spiritual sect that was outlawed in China in 1999.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3303
___________
Ji Ying Chen, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Michael B. Mukasey, Attorney *
General of the United States, *
*
Respondent. *
___________
Submitted: November 12, 2007
Filed: December 26, 2007
___________
Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Ji Ying Chen petitions for review of the BIA's order denying his application for
asylum, withholding of removal, and relief under the Convention Against Torture.
Chen contends that the BIA erred in affirming the Immigration Judge's adverse
credibility finding. The IJ relied on inconsistencies between his testimony and his
earlier asylum affidavit and on implausibilities in Chen's story to reject Chen's
testimony that he was wanted by the Chinese government because he had driven his
mother to a Falun Gong1
practice. We deny the petition for review.
Appellate Case: 06-3303 Page: 1 Date Filed: 12/26/2007 Entry ID: 3385588
-2-
Chen arrived at the Virgin Islands on June 30, 2002, by ship, and came ashore
without inspection. The Immigration and Naturalization Service took him into
custody and charged him with removability for entering the United States without
being admitted or paroled. Chen was released on bond and moved to Minnesota.
On January 16, 2003, he applied for asylum, withholding of removal, and relief
under the Convention Against Torture, claiming that he feared he would be persecuted
in China on account of religion. He filed an affidavit saying that his mother had taken
to Falun Gong as a remedy for arthritis and that he drove her to her practices for
several months. Chen said in his affidavit that on October 3, 2001, five policemen
came to his house looking for him, saying that he had joined a Falun Gong
organization. Luckily, he was not home, and his parents told him to stay away.
According to the affidavit, about a week later, seven or eight policemen came to the
house, again looking for him. They smashed furniture, and Chen's father protested,
"What crime did my son really commit?" Chen's affidavit said, "A young policeman
said viciously to my father: 'You dare to talk back?'" The police then beat his father,
who lost consciousness and had to be taken to the hospital, "where his life was saved."
The affidavit mentions his mother in this scene only to say that she "wept and shouted
and yet no one came to the rescue." Chen said he took refuge at a friend's house in
Chengdu, Sichuan province. The affidavit continues by recounting Chen's decision
to flee to the United States and his route from Fuzhou to Guangzhou, then on to Hong
Kong, next to an unknown place, and finally to the Virgin Islands.
At his hearing before the IJ, Chen again recounted the story of how the police
came to his parents' house the second time, identified as October 12, 2001, but in this
account, he stated that the police beat his mother and she lost consciousness. Later,
he said that his mother did not get medical treatment because it was nothing serious.
When asked how many times the police hit his mother, at first he said she did not say,
but then he said it was "a couple of times." He explained that he first found out that
his mother had been hit the Saturday before his hearing; he said she did not tell him
Appellate Case: 06-3303 Page: 2 Date Filed: 12/26/2007 Entry ID: 3385588
-3-
before because she did not want him to worry. He said that after the October 12
incident he took refuge at his grand aunt's house. Later, he said he initially fled to his
grand uncle's house, then went to stay with friends. He said his father paid 50,000
American dollars for a smuggler to get him to the United States. He said he went from
Fuzhou to Guangzhou, where someone was waiting for him with a travel document
with his picture and name, which he used to leave China. He flew to Hong Kong, then
to another unidentified place where he was kept in a tiny house for about ten days. He
then boarded a ship, where he was with about twenty other people in the hold; after
fifteen to seventeen days, the ship put them ashore in the Virgin Islands, where they
were taken into INS custody. His uncle, an asylee who owns a restaurant in
Minnesota, paid for his bond and took him in. Chen testified that he was bored at his
uncle's house, so he decided to learn to cook in the restaurant. Chen submitted a letter
from his father who recounted the October 12, 2001 incident in detail without
mentioning any violence committed against his wife, and who said that he had told his
son to hide with his grand aunt after the first police visit. Chen also said that his
brother had moved away from home in order not to "get involved" in the family's
problems.
The IJ decided that Chen was not credible because of various inconsistencies
and implausibilities in his story. Her principal findings were that it was implausible
that police would look for Chen, instead of his mother, since he did not practice Falun
Gong and she did; that his failure to mention in his affidavit that the police had beaten
his mother made it appear that he was not telling the truth when he later said she had
been beaten; that if he were really wanted by the Chinese government, he would not
have been able to leave using a passport with his real name and picture; and that it was
implausible that he would not know any details about his journey, such as what airline
he took, what countries he stayed in, etc. The IJ also found that because of Chen's
evasiveness about his travel itinerary, Chen had not established his date of arrival in
the United States in order to prove that he filed for asylum within one year of arrival.
The IJ found that Chen was not wanted by the Chinese government because of any
Appellate Case: 06-3303 Page: 3 Date Filed: 12/26/2007 Entry ID: 3385588
-4-
connection to Falun Gong, but if he were, he could relocate within China to avoid any
problem, as his brother has done. The IJ concluded that Chen had come to this
country for economic reasons, in order to work at his uncle's restaurant.
After the IJ's initial opinion, both sides moved to remand to submit further
documentation. Chen submitted a purported receipt from his father's hospital stay on
October 12, 2001; however, the government submitted a report from the Department
of Homeland Security stating that the receipt had been determined to be counterfeit.
A further hearing was held, in which Chen was questioned about how he obtained the
document; he said that his father could not find the original receipt, so he had used his
"connections" to get it reissued. After the hearing, the IJ found that the document was
fraudulent and that Chen had knowingly presented a fraudulent document as evidence.
Accordingly, in addition to adhering to her earlier decision, the IJ denied Chen's
asylum application as an exercise of discretion.
The BIA adopted and affirmed the decision of the IJ, with additions. The BIA
observed that Chen had submitted documents to the BIA that were not before the IJ,
but the BIA stated that it would not consider evidence not before the IJ. Chen did not
file a motion to reopen, but the BIA said that even if it had decided to treat his filing
as a motion to reopen, he would not have met the requirements for such a motion,
since he did not present evidence casting doubt on the IJ's adverse credibility
determination and therefore did not make a prima facie case that he was entitled to
relief.
Chen petitions for review, arguing that the BIA erred in affirming the IJ's
finding that he was not truthful because the IJ's finding was not supported by "specific
and cogent reasons." He argues that the inconsistencies the IJ found important were
too minor to support an adverse credibility determination, that the IJ had to credit his
explanations for the inconsistencies, that the IJ's assessment of implausibilities was
based on speculation, and that the IJ did not give him a chance to explain how he
Appellate Case: 06-3303 Page: 4 Date Filed: 12/26/2007 Entry ID: 3385588
-5-
could have left China using his own name when he was supposedly wanted by the
Chinese government.
When the BIA adopts and affirms the IJ's decision, but also adds reasoning of
its own, we will review both decisions together. Eta-Ndu v. Gonzales, 411 F.3d 977,
982 (8th Cir. 2005). We review the agency's findings of fact for substantial evidence
under the statutory standard for immigration cases: "[T]he administrative findings of
fact are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary." 8 U.S.C. § 1252(b)(4)(B). The Attorney General's discretionary
decision not to grant asylum (delegated to the IJ, 8 C.F.R. § 1208.14(a)) is conclusive
unless "manifestly contrary to the law and an abuse of discretion." 8 U.S.C. §
1252(b)(4)(D). The burden of proof is on the applicant for asylum, withholding of
removal, and relief under the Convention Against Torture to establish eligibility for
relief, and the alien may sustain this burden by his own testimony, if credible. 8
C.F.R. §§ 1208.13(a), 1208.16(b), & 1208.16(c)(2).
The Real ID Act of 2005 codified in great detail the criteria IJs may use to make
credibility determinations in immigration cases. See Pub. L. No. 109-13, Div. B, 119
Stat. 302-06, codified at 8 U.S.C. § 1158 (b)(1)(B)(iii), 8 U.S.C. § 1229a(c)(4)(C) &
8 U.S.C. § 1231(b)(3)(C). However, Congress did not make the new provisions
applicable to cases in which the application for asylum or withholding was filed
before May 11, 2005, see 8 U.S.C. § 1158 note (Effective and Applicability
Provisions). Since Chen filed his application in 2003, we apply the law that existed
before the Real ID Act in judging the adequacy of the IJ's credibility findings.
The substantial evidence standard was imported into administrative law from
cases dealing with review of jury verdicts and is more deferential than the "clearly
erroneous" standard used in reviewing findings of fact by a district judge. MenendezDonis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004). Credibility determinations are
considered to be the special province of the finder of fact under both the substantial
Appellate Case: 06-3303 Page: 5 Date Filed: 12/26/2007 Entry ID: 3385588
2
The Rule 50 standard is the same whether the court is deciding to take a case
away from the jury or to enter judgment notwithstanding a contrary verdict. Askew
v. Millerd, 191 F.3d 953, 956 n.4 (8th Cir. 1999).
-6-
evidence standard used for jury verdicts and the clearly erroneous standard used for
judicial findings. Compare United States v. Montano, 506 F.3d 1128, 1133 (8th Cir.
2007) ("It is axiomatic that we do not review questions involving the credibility of
witnesses, but leave credibility questions to the jury. The jury is free to believe the
testimony of any witness in its entirety, or to reject that testimony as untrustworthy.")
(internal quotation marks and citations omitted) with United States v. Tucker, 243
F.3d 499, 506 (8th Cir. 2001) (when judge's finding concerns credibility of witnesses,
"clear error" review is even more deferential than usual).
However, administrative "substantial evidence" review differs from that applied
to jury verdicts in two respects. First, under the rule of Universal Camera Corp. v.
NLRB, 340 U.S. 474, 487-88 (1951), in reviewing administrative fact findings we are
required to take into account the record "as a whole," considering evidence that
detracts from the administrative finding. Menendez-Donis, 360 F.3d at 918. In
contrast, in reviewing a jury verdict, we draw every reasonable inference in favor of
the verdict and may not make credibility determinations or weigh the evidence. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (applying Fed.
R. Civ. P. 502
). Second, under SEC v. Chenery Corp., 318 U.S. 80, 94 (1943), any
administrative agency must describe its reasoning with "such clarity as to be
understandable," SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), whereas a jury
generally does not explain its reasoning. Because of these principles of administrative
law, "substantial evidence" review of administrative findings entails review of an IJ's
credibility determinations, see, e.g., Singh v. Gonzales, 495 F.3d 553, 556-59 (8th Cir.
2007), whereas "substantial evidence" review of a jury's findings defers almost
entirely to the jury's credibility determinations, Reeves, 530 U.S. at 150-51 (reviewing
court disregards all evidence "favorable to the moving party that the jury is not
Appellate Case: 06-3303 Page: 6 Date Filed: 12/26/2007 Entry ID: 3385588
3
In Reeves, 530 U.S. at 151, the Supreme Court endorsed the statement in 9A
Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2529 at 300
(2d ed. 1995), that a court deciding a motion under Fed. R. Civ. P. 50 takes into
account "evidence supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence comes from disinterested
witnesses." (emphasis added). See Salitros v. Chrysler Corp., 306 F.3d 562, 569 (8th
Cir. 2002) (applying rule).
-7-
required to believe"3
). Applying the Chenery rule and the administrative "substantial
evidence" rule together, courts often say that an IJ must give "specific, cogent"
reasons for his findings. See Singh, 495 F.3d at 557-58. In Singh, we explained that
this means that an IJ making a credibility determination must "give reasons that are
'specific' enough that a reviewing court can appreciate the reasoning behind the
decision" and cogent enough "that a reasonable adjudicator would not be compelled
to reach the contrary conclusion." Id.
Chen argues that it was "speculation" for the IJ to say it was implausible that
the Chinese police would come after him instead of his mother as part of a crack-down
against Falun Gong, when it was his mother, not he, who participated in Falun Gong.
Chen also terms it speculation for the IJ to conclude that if Chen had been wanted by
the Chinese government, he would not have been able to cross the border using his
own identity papers. We have in the past refused to disturb IJs' findings based on
assessments of plausibility, even though such assessments must ultimately depend on
the fact-finder's notions of common sense and life experience. See, e.g., Thiam v.
Gonzales, 496 F.3d 912, 914 (8th Cir. 2007) (affirming IJ's finding that it was
implausible alien would have given her passport to a woman to deliver packages to
Senegal); Singh, 495 F.3d at 558 (implausible that aliens would live for two years,
rent-free, with persons with whom they had no prior relationship); Gebresadik v.
Gonzales, 491 F.3d 846, 850 (8th Cir. 2007) (agreeing with IJ that it was implausible
that alien in Ethiopia would have been entrusted with organizing demonstration on the
very day she joined organization); Onsongo v. Gonzales, 457 F.3d 849, 855 (8th Cir.
Appellate Case: 06-3303 Page: 7 Date Filed: 12/26/2007 Entry ID: 3385588
-8-
2006) (implausible that individuals and major political parties in Kenya share same
post office box); see generally Dia v. Ashcroft, 353 F.3d 228, 261-64 (3d Cir. 2003)
(en banc) (Alito, J., concurring and dissenting) (all finders of fact must rely on
"background knowledge" of human behavior). While in certain cases, we have
disagreed with the IJ's assessments of plausibility, see Hong Zhang Cao v. Gonzales,
442 F.3d 657, 660 (8th Cir. 2006) (disagreeing with IJ's determination that it was
implausible that official would fail to notice that woman was five months pregnant);
Shahinaj v. Gonzales, 481 F.3d 1027, 1029 (8th Cir. 2007) (credibility finding not
based on substantial evidence where it was based on IJ's "personal and improper"
opinion about how homosexuals would behave), we have done so only where the IJ's
finding was irrational or based on improper bias.
We see no impermissible speculation in the IJ's determination that Chen's story
was implausible. A rational person could conclude that police would be more
interested in arresting an active participant in a forbidden activity than in arresting an
accessory, and therefore that it was implausible that the Chinese police would
relentlessly pursue Chen (the driver), but decline to arrest his mother (the Falun Gong
adherent). A rational person could think that if Chen were forced to hide within China
and flee the country to avoid the wrath of its government, he would not present
government border officials his identification with his own name and picture. A
finder of fact would not be compelled to find these aspects of Chen's story plausible.
Chen also argues that the IJ speculated in saying that it was implausible that
Chen would have just learned the Saturday before the June 2003 hearing that his
mother had been beaten by police on October 12, 2001. Chen told a detailed, even
florid, story in his asylum affidavit about the events of October 12, 2001, including
such details as
A young policeman said viciously to my father: 'You dare to talk back?'
Then he slapped on my father's face. Several other policemen then gave
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-9-
my father a round of good beating without saying anything. Then, they
left the house. My father fainted away at the scene and my mother wept
and shouted and yet no one came to the rescue.
He made no mention of any violence offered his mother. In contrast, at the hearing
he testified, "While they beat up my father, my mother was on the side and screaming.
Screaming. And my —they still beat up my mother, too. And then after, after that,
my mother became unconscious." Chen explained his failure to mention any violence
against his mother in the asylum affidavit by saying that what happened to his mother
was minor, that she did not want to worry him, and that she had not mentioned it.
Again, the IJ was entitled to rely on her own background knowledge of human
behavior to think that if police looking for Chen had beaten his mother so that she
fainted, someone would have told Chen and he would have mentioned it when
applying for asylum. After all, Chen knew that his father had been beaten, so why
would his parents have spared his feelings by concealing the lesser injury dealt his
mother? The IJ could rationally conclude that the reason for the difference in the
affidavit and in his testimony about what happened to his mother was that Chen was
fabricating. The IJ did not have to accept Chen's explanation for why his testimony
at the hearing contained a major incident missing from the already detailed account
in his asylum affidavit of the events of October 12. See Hong Zhang Cao, 442 F.3d
at 661 (omission of fact central to claim can be basis for adverse credibility finding).
Chen also argues that he had no opportunity to explain why he was able to leave
China using his own passport despite the fact that he was allegedly a wanted man.
Chen was represented by counsel and not only testified at the original hearing, but
also on the hearing after remand, when the IJ had already made her initial adverse
credibility findings. Chen made no attempt to explain why he was able to leave China
without hindrance. His only explanation before us is that he "left with the help of the
smuggler," which does not explain the difficulty inherent in his story that he identified
himself to the government that was supposedly pursuing him and they let him go.
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4
The BIA mentioned the submission of the counterfeit receipt as supporting the
IJ's adverse credibility finding. An adverse credibility finding may be based on the
applicant's knowing submission of fraudulent documents as evidence in his asylum
proceedings. See Onsongo, 457 F.3d at 854. However, it appears that the IJ relied on
the fraudulent document as a basis for exercising discretion against granting asylum,
rather than as an additional basis for the adverse credibility finding.
-10-
In sum, the IJ's adverse credibility determination was supported by substantial
evidence. Since Chen's claims for asylum, withholding of removal, and relief under
the Convention Against Torture all depend on the same discredited testimony, we
must uphold the denial of each form of relief. See Onsongo, 457 F.3d at 855.
Finally, the IJ held that because of Chen's knowing use of counterfeited
documents, asylum should be denied on discretionary grounds. See 8 C.F.R. §
1208.14(a) (IJ may grant or deny asylum to refugee in exercise of discretion). Chen
makes no argument that this decision was manifestly contrary to law and an abuse of
discretion. See 8 U.S.C. § 1252(b)(4). We therefore would be obliged to deny review
of the asylum claim for this reason even if Chen had prevailed on the grounds he did
argue.4
The petition for review is denied.
______________________________
Appellate Case: 06-3303 Page: 10 Date Filed: 12/26/2007 Entry ID: 3385588 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-4_11-cv-00443/USCOURTS-azd-4_11-cv-00443-1/pdf.json | [
[
"William Leonard Pickard",
"Plaintiff"
],
[
"United States Department of Justice",
"Defendant"
]
] | UNITED
STATES
DISTRICT
COURT
For the Northern District of California
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C 10-05253
ORDER RE 1/18/11 MOTION
UNITED
STATES
DISTRICT
COURT
For the Northern District of California
UNITED STATES DISTRICT COURT
Northern District of California
Oakland Division
WILLIAM LEONARD PICKARD,
Plaintiff,
v.
DEPARTMENT OF JUSTICE,
Defendant.
_____________________________________/
No. C 10-05253 LB
ORDER RE PLAINTIFF’S JANUARY
18, 2011 MOTION FOR
MISCELLANEOUS RELIEF
On November 18, 2010, pro se Plaintiff William Pickard filed a complaint seeking disclosure of
Drug Enforcement Agency records pursuant to the Freedom of Information Act. 5 U.S.C. §
552(a)(4)(B); Complaint, ECF No. 1 at 1, ¶¶ 1-2. Pickard is incarcerated at a federal prison in
Tucson, Arizona. Complaint, ECF No. 1 at 2, ¶ 4. The court granted Pickard’s motion for leave to
proceed in forma pauperis on December 8, 2010 and ordered the United States Marshal to serve
Defendant United States Department of Justice. 12/08/10 Order, ECF No. 7 at 1.
On January 18, 2011, Pickard filed a “Motion for Order” asking the court to (1) reissue the
summons directly to him so that he could serve the Department, (2) correct the 60-day period for the
Department’s answer set forth in the summons to 30 days, (3) suspend the personal meeting
requirement for initial discovery, (4) direct the Department to provide “an accessible email address”
so that he can receive emails from the Department, and (5) suspend the March 10, 2011 case
management date and establish a summary judgement briefing schedule. Motion, ECF No. 9 at 4.
The U.S. Marshal served the Department with a copy of the complaint and summons on January
Case 4:11-cv-00443-DCB Document 13 Filed 02/11/11 Page 1 of 2
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STATES
DISTRICT
COURT
For the Northern District of California
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5 U.S.C. § 552(a)(4)(C) reads: “Notwithstanding any other provision of law, the defendant
shall serve an answer or otherwise plead to any complaint made under this subsection within thirty
days after service upon the defendant of the pleading in which such complaint is made, unless the
court otherwise directs for good cause shown.”
C 10-05253
ORDER RE 1/18/11 MOTION
2
UNITED
STATES
DISTRICT
COURT
For the Northern District of California
27, 2011. ECF No. 10. Therefore, Pickard’s motion to have the court reissue the summons to him is
DENIED AS MOOT.
Pickard’s second request for modification of the 60 day period for answering the complaint to
conform with the 30 day requirement in 5 U.S.C. § 552(a)(4)(C)1 and third request to suspend the
personal meeting requirement for initial discovery in accordance with Federal Rule of Civil
Procedure 26(a)(1)(B) are GRANTED in so far as they require the parties to comply with applicable
statutes, Federal Rules of Civil Procedure, the Northern District of California’s Local Rules, and this
court’s standing order.
Pickard’s fourth request to direct the Department to provide an “accessible email address” is
DENIED. The parties shall meet and confer regarding the best way to communicate going forward
in this case.
Pickard’s fifth request to vacate the March 10, 2011 case management conference and set a
summary judgment briefing schedule is DENIED. The parties are directed to meet and confer.
After meeting and conferring, either party may move to vacate the case management conference. If
both parties agree to vacate the case management conference, they may file a joint stipulation
requesting that the court vacate it.
IT IS SO ORDERED.
Dated: February 11, 2011 _______________________________
LAUREL BEELER
United States Magistrate Judge
Case 4:11-cv-00443-DCB Document 13 Filed 02/11/11 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_16-cr-00159/USCOURTS-cand-3_16-cr-00159-0/pdf.json | [
[
"Milagro Moraga",
"Defendant"
],
[
"Stanislav Petrov",
"Defendant"
],
[
"USA",
"Plaintiff"
]
] | STIPULATION AND [PROPOSED] ORDER EXCLUDING TIME
CR 16-00159 WHA 1
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STEVEN G. KALAR
Federal Public Defender
CARMEN SMARANDOIU
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: 415.436.7700
Facsimile: 415.436.7706
[email protected]
Counsel for Defendant MORAGA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
STANISLAV PETROV and MILAGRO
MORAGA,
Defendants.
Case No. CR 16-00159 WHA
STIPULATION AND [PROPOSED]
ORDER EXCLUDING TIME
FROM MAY 17, 2016, TO JUNE 21,
2016
The United States of America, by and through Assistant United States Attorney Damali Taylor,
and defendants Milagro Moraga, by and through defense counsel Carmen A. Smarandoiu, and Stanislav
Petrov, by and through defense counsel William Osterhoudt, hereby stipulate that, with the Court’s
approval, the time between May 17, 2016 and June 21, 2016 is excludable under the Speedy Trial Act,
18 U.S.C. § 3161(h)(7)(A) and (B)(iv), for effective preparation of counsel.
The parties appeared before the Court on May 17, 2016, at 2:00 p.m., for an initial status hearing
in this proceeding. Upon the request of the parties, the Court set a further status hearing in this matter for
June 21, 2016, at 2:00 p.m. Upon the representation of AUSA Taylor that she will provide additional
discovery and the representation of defense counsel that they need additional time to review discovery
and conduct necessary investigation, the parties requested that time be excluded under the Speedy Trial
Case 3:16-cr-00159-WHA Document 34 Filed 06/20/16 Page 1 of 3
STIPULATION AND [PROPOSED] ORDER EXCLUDING TIME
CR 16-00159 WHA 2
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Act between May 17, 2016 and June 21, 2016, for effective preparation of counsel, under 18 U.S.C. §
3161(h)(7)(B)(iv).
The parties stipulate that the failure to exclude time would deny counsel the reasonable time
necessary for effective preparation, taking into account the exercise of due diligence under 18 U.S.C. §
3161(h)(7)(B)(iv). The parties further stipulate that the requested exclusion of time, from May 17, 2016
to June 21, 2016, is in the interests of justice and outweighs the best interest of the public and the
defendant in a speedy trial. 18 U.S.C. § 3161(h)(7)(A).
IT IS SO STIPULATED.
/s/
Dated: May 18, 2016 __________________________________________
CARMEN SMARANDOIU
Assistant Federal Public Defender
Attorney for Defendant Milagro Moraga
/s/
Dated: May 18, 2016 __________________________________________
WILLIAM OSTERHOUDT
Attorney for Defendant Stanislav Petrov
/s/
Dated: May 18, 2016 __________________________________________
DAMALI TAYLOR
Assistant United States Attorney
Attorney for the United States of America
Attestation of Filer
In addition to myself, the other signatories to this document are William Osterhoudt and Damali
Taylor. I hereby attest that I have their permission to enter a conformed signature on their behalf and to
file this document.
/s/
Dated: May 18, 2016 __________________________________________
CARMEN SMARANDOIU
Assistant Federal Public Defender
Attorney for Defendant Milagro Moraga
Case 3:16-cr-00159-WHA Document 34 Filed 06/20/16 Page 2 of 3
STIPULATION AND [PROPOSED] ORDER EXCLUDING TIME
CR 16-00159 WHA 3
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[PROPOSED] ORDER
Based upon the representation of counsel and for good cause shown, the Court finds that failing
to exclude the time between May 17, 2016 and June 21, 2016, would unreasonably deny counsel the
reasonable time necessary for effective preparation, taking into account the exercise of due diligence. 18
U.S.C. § 3161(h)(7)(B)(iv). The Court further finds that the ends of justice served by excluding the time
between May 17, 2016 and June 21, 2016, from computation under the Speedy Trial Act outweigh the
best interests of the public and the defendant in a speedy trial.
Therefore, IT IS HEREBY ORDERED that the time between May 17, 2016 and June 21, 2016,
shall be excluded from computation under the Speedy Trial Act. 18 U.S.C. § 3161(h)(7)(A) and (B)(iv).
DATED: ____________ ________________________________
HONORABLE WILLIAM ALSUP
United States District Judge
Case 3:16-cr-00159-WHA Document 34 Filed 06/20/16 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_04-cv-04153/USCOURTS-cand-4_04-cv-04153-0/pdf.json | [
[
"Acquire, Inc.",
"Counter-claimant"
],
[
"Convex Promotions, Inc.",
"Counter-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
CONVEX PROMOTIONS, INC.,
Plaintiff, No. C 04-4153 PJH
v. ORDER
ACQUIRE, INC.,
Defendant.
_______________________________/
The request for leave to designate additional terms for claim construction is DENIED.
The court anticipates that after the ten terms designated by the parties have been construed,
the parties will be able to resolve any remaining disputes regarding claim construction without
assistance. However, the court will hold a case management conference after construing
those ten terms, and will discuss with the parties at that time whether there is a need for
construction of additional terms.
IT IS SO ORDERED.
Dated: June 27, 2005
/s/
PHYLLIS J. HAMILTON
United States District Judge
Case 4:04-cv-04153-PJH Document 41 Filed 06/27/05 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_10-cv-00033/USCOURTS-cand-3_10-cv-00033-3/pdf.json | [
[
"Costco Wholesale Corporation",
"Defendant"
],
[
"Jade Jue",
"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
JADE JUE, individually, and on behalf of all
other similarly situated persons, on behalf of
the People of the State of California, and on
behalf of the California Labor and Workforce
Development Agency, and ROES 1–35,
Plaintiffs,
v.
COSTCO WHOLESALE CORPORATION,
and DOES 1–20,
Defendant. /
No. C 10-00033 WHA
ORDER ON DEFENDANT’S
MOTION TO DISMISS, OR
ALTERNATIVELY, MOTION
FOR SUMMARY JUDGMENT
AND MOTION TO STRIKE
INTRODUCTION
In this California labor action involving the alleged failure by Costco Wholesale
Corporation to provide “suitable seating” for its employees, Costco moves to dismiss all claims in
the complaint, or alternatively, for summary judgment. Costco also moves to strike portions of
the complaint pertaining to plaintiff’s class allegations. For the reasons set forth below,
defendant’s motion to dismiss plaintiff’s claims is GRANTED.
STATEMENT
Putative class representative and named plaintiff Jade Jue is a former Costco employee.
She worked in a number of “front-end” positions at Costco as a cashier, customer service
assistant, and cashier’s assistant from September 2006 through August 2007 before taking a leave
Case 3:10-cv-00033-WHA Document 24 Filed 03/11/10 Page 1 of 9
United States District Court
For the Northern District of California
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of absence (Compl. ¶¶ 11, 12; Jerman Decl. ¶ 5). After failing to return to work for over a year,
Costco terminated Jue’s employment in September 2008 for “abandonment” (Jerman Decl. ¶ 6).
In October 2009, Jue filed this action in California Superior Court, alleging that Costco
failed to provide, or permit use of, suitable seating to her and similarly situated Costco employees
in violation of California Industrial Welfare Commission Wage Order 7-2001, Section 14. Two
claims were alleged based upon Costco’s alleged violation of this wage order. The first claim
alleged a violation of Section 1198 of the California Labor Code, which makes unlawful any
working condition proscribed by an IWC wage order (Compl. ¶¶ 41–55). For this claim, the
complaint alleged that Section 1198 was enforceable by private right of action through the Private
Attorney General Act of 2004 (“PAGA”), codified in Section 2699 of the California Labor Code
(id. ¶ 52). The second claim alleged unfair competition in violation of California Business and
Professions Code Section 17200 et seq. (id. ¶¶ 56–72).
Costco removed the action to federal court, and promptly filed the instant motion (Dkt.
Nos. 1, 8). The motion unleashed a multi-pronged attack on plaintiff’s claims and class
allegations. First, Costco moved to dismiss the complaint in its entirety for failing to satisfy
federal pleading requirements. Second, Costco moved for summary judgment that plaintiff’s first
claim was time-barred under PAGA. Third, Costco moved to dismiss the second claim for lack of
standing and on the grounds that it derived from the time-barred first claim. Fourth, Costco
moved to strike various aspects of the class allegations as unascertainable and overly broad.
Questionable tactics tainted the briefing process. Approximately forty minutes after
Costco filed its reply brief, plaintiff filed a request to voluntarily dismiss the action without
prejudice (Dkt. Nos. 13, 14). One week later, Costco filed an opposition to the dismissal request
(Dkt. No. 15). After additional back-and-forth filings by the parties, a hearing on the voluntary
dismissal (but not the instant motion) was held. At the hearing, counsel for plaintiff Jue —
Attorney Cary Kletter — conceded that the relief sought by Jue under PAGA was time-barred.
Attorney Kletter, however, added that he believed Costco’s removal under CAFA was improper
and informed the Court that an additional plaintiff — Jorge Mejia — would be added to the suit to
seek relief under PAGA. As for his requested dismissal, counsel explained that he intended to
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simply “start over” in state court with both Jue and Mejia as named plaintiffs, rather than oppose
Costco’s motion or file a motion to remand. That said, counsel admitted that the timing of the
dismissal request was unfortunate.
Following the hearing, the Court presented Attorney Kletter with three options: (1)
remain in federal court and allow the instant motion to be resolved on the papers, after which
Mejia could be added to the action if leave to amend the complaint was granted; (2) immediately
file a motion to remand, which would be resolved prior to the instant motion; or (3) pay $1000 to
defense counsel for time spent and expenses incurred due to the delayed dismissal, after which the
voluntary dismissal would be allowed (Dkt. No. 21). Counsel selected the first option, leading to
this order (Dkt. No. 23).
ANALYSIS
While defendant presented a multitude of independent grounds upon which its motion
could be granted, this order will proceed in a claim-by-claim basis, and address only those issues
necessary to the outcome.
1. CLAIM ONE — “FAILURE TO PROVIDE, OR PERMIT USE OF, SEATS”
Plaintiff Jue conceded in her opposition brief and at oral argument that the civil penalties
she sought under the Private Attorney General Act for the alleged violation of Section 1198 were
time-barred by a one-year statute of limitations (Opp. 8; Compl. ¶ 55). Nevertheless, Jue still
asserts that the first claim can stand without PAGA, despite the fact that the complaint sets forth
no alternative statutory grounds authorizing a private right of action for an alleged violation of
Section 1198. In other words, plaintiff argues that a private right of action for her first claim is
authorized by Section 1198 alone.
This is incorrect. Costco asserts, and the undersigned agrees, that a private right of action
to recover civil penalties for a violation of Section 1198 must be brought through PAGA, which
provides:
Notwithstanding any other provision of law, any provision of this
code that provides for a civil penalty to be assessed and collected
by the Labor and Workforce Development Agency or any of its
departments, divisions, commissions, boards, agencies, or
employees, for a violation of this code, may, as an alternative, be
recovered through a civil action brought by an aggrieved employee
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on behalf of himself or herself and other current or former
employees pursuant to the procedures specified in Section 2699.3.
Cal. Lab. Code § 2699(a). In other words, PAGA provides an “aggrieved employee” — so long
as the administrative procedures set forth in Section 2699.3 are followed — with a private right of
action to recover a “civil penalty” for any violation of the California Labor Code that would
otherwise be limited to government enforcement, assessment, and collection.
Section 1198 does not expressly grant a private right of action. Rather, the statutory text
simply establishes that certain employment practices are unlawful:
The maximum hours of work and the standard conditions of labor
fixed by the commission shall be the maximum hours of work and
the standard conditions of labor for employees. The employment
of any employee for longer hours than those fixed by the order or
under conditions of labor prohibited by the order is unlawful.
Cal. Lab. Code § 1198.
Nevertheless, plaintiff asserts that a private right of action for “civil penalties” under
Section 1198 can be brought in the absence of an express statutory grant and without bringing the
claim under PAGA. A recent California Court of Appeal decision, however, concluded
otherwise. See Caliber Bodyworks v. Superior Court, 134 Cal. App. 4th 365, 377 (2005). In
Caliber Bodyworks, the court distinguished between “statutory penalties . . . which were
recoverable directly by employees well before [PAGA] became part of the Labor Code, and a
demand for ‘civil penalties,’ previously enforceable only by the State’s labor law enforcement
agencies.” Ibid. Given this distinction, the court found that a demand for civil penalties was —
in the absence of PAGA — “enforceable only by the State’s labor law enforcement agencies”
when a code section contained no independent grant of statutory penalties recoverable through
private action. Ibid. Section 1198 is such a code section.
Moreover, PAGA specifically includes Section 1198 as one of the enumerated labor code
sections subject to its administrative requirements. See Cal. Lab. Code § 2699.3(a) (“A civil
action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a
violation of any provision listed in Section 2699.5 shall commence only after the following
requirements have been met . . . ”.); Cal. Lab. Code § 2699.5 (listing Section 1198 among labor
code sections enforceable under PAGA). This provides independent and compelling support to
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the conclusion that a private right of action under Section 1198 does not exist, except through the
procedures set forth in PAGA.
In sum, plaintiff Jue cannot circumvent her concession that she is time-barred from
recovering civil penalties under PAGA for a violation of Section 1198. Indeed, plaintiff’s
opposition cites to no decisions where a private right of action to recover civil penalties for a
violation of Section 1198 was ever authorized outside of PAGA. As such, as to plaintiff Jue,
claim one must be DISMISSED WITHOUT LEAVE TO AMEND.
As stated, the Court will entertain a motion to intervene by Mr. Mejia, who is allegedly
not time-barred from seeking civil penalties for claim one under PAGA. Given that the factual
allegations underlying Mr. Mejia’s employment at Costco may differ in many respects from those
of plaintiff Jue, this order will refrain from addressing the sufficiency of plaintiff’s first claim
under Rule 8 and Twombly. Indeed, it would be premature to examine the facts as they are
currently pled, since Mr. Mejia may have performed different tasks at Costco, or perhaps worked
at a different Costco altogether. The more prudent approach would be to gauge the sufficiency of
the amended complaint if and when plaintiff seeks leave to amend.
2. CLAIM TWO — “UNFAIR COMPETITION”
Plaintiff’s second claim is based upon California unfair competition law (Compl. ¶¶
56–72). See Cal. Bus. & Prof. Code §§ 17200 et seq. Underlying this claim is the allegation that
defendant’s “acts and practices have forced Plaintiffs and other similarly situated workers to labor
for many hours in a row without being able to sit which they were entitled by law and which are
important to employee safety” (id. ¶ 66).
Costco does not allege that plaintiff Jue is time-barred from bringing her second claim.
See Cal. Bus. & Prof. Code § 17208 (setting a four-year statute of limitations). Rather, Costco
argues that Jue cannot use Section 17200 as a means to circumvent the one-year statute of
limitations to recover civil penalties under PAGA (Br. 4). Costco also asserts — as a separate
argument — that plaintiff Jue lacks standing to assert an unfair competition claim, because she
has not plausibly alleged that she has suffered an injury-in-fact or lost money or property as a
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result of the alleged unfair competition, and the injunction she seeks will not redress any injury
allegedly suffered (Br. 5–7).
With respect to the first argument, Jue’s unfair competition claim does not require that her
Section 1198 claim be actionable. A claim may be brought under Section 17200 for any business
practices that are unfair, even if they are not unlawful. Cel-Tech Communications v. Los Angeles
Cellular Tel. Co., 20 Cal.4th 163, 180 (1999). As such, plaintiff’s unfair competition claim is not
contingent upon proof of an actual violation of law. It does not fail simply because her Section
1198 claim is time-barred.
The defendant’s standing argument, by contrast, has legs. As discussed below, plaintiff
Jue does not have standing to assert a claim under Section 17200, at least as currently pled.
Additionally, even if Mr. Mejia intervenes in this action, there will be significant obstacles to
establish his standing for the second claim, if the allegations remain the same.
While standing may be a statutory requirement to bring an unfair competition claim, it is
also a constitutional prerequisite to bringing suit in federal court. To establish Article III
standing, a plaintiff must allege a personal and concrete injury fairly traceable to the defendant’s
allegedly unlawful conduct. See, e.g., Thinket Ink Info. Res., Inc. v. Sun Microsytems, Inc., 368
F.3d 1053, 1057 (9th Cir. 2004). Moreover, it must be likely that the injury will be redressed by
the relief requested. Ibid. In addition to Article III standing, California Business and Professions
Code Section 17204 contains its own statutory standing requirement for unfair competition,
which states: “Actions for relief pursuant to this chapter shall be prosecuted exclusively in a court
of competent jurisdiction by [the Attorney General or] . . . a person who has suffered injury in
fact and has lost money or property as a result of the unfair competition.” Cal. Bus. & Prof. Code
§ 17204.
Plaintiff Jue has met neither of these requirements for her unfair competition claim.
A. Injury-in-Fact
With respect to injury-in-fact, the complaint alleged (Compl. ¶¶ 66, 68):
Costco’s acts and practices have forced Plaintiffs and other
similarly situated workers to labor for many hours in a row without
being able to sit which they were entitled by law and which are
[sic] important to employee safety. . . . As a direct and proximate
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result of the acts and practices described herein, Plaintiffs and the
Class Members have been denied compensation, in an amount to
be proven at trial. Plaintiffs and those similarly situated have
accordingly each suffered injury in fact and has [sic] lost money or
property as a result of Costco’s unfair, unlawful and fraudulent
business practices, and unfair competition.
In other words, carefully borrowing the language of Section 17204, the complaint alleged
that a “deni[al] of compensation” formed the basis of the “injury in fact “ and “lost money or
property” suffered by plaintiff Jue and those similarly situated. No other “injury in fact” or “lost
money or property” was alleged.
Given that the heart of this dispute and the unfair competition claim is Costco’s alleged
failure provide its employees with “suitable seating,” it stretches the imagination to see how the
inability to sit while on the job amounts to a denial of compensation. While this order does not
discount the possibility that a logical connection between the two could potentially be drawn, no
such connection is plausibly alleged. Rather, the complaint is devoid of any allegations tying the
alleged denial of seating to a loss of compensation, or any other money or property for that
matter.
In sum, the complaint has failed to show that the alleged injury — denied compensation
— is fairly traceable to the defendant’s allegedly unlawful conduct. Plaintiff Jue’s standing to
bring her unfair competition claim is therefore improper under both Article III and Section 17204.
See Thinket, 368 F.3d at 1057; see also Cal. Bus. & Prof. Code § 17204 (conferring a private right
of action only if a person has “suffered injury in fact . . . as a result of the unfair competition”)
(emphasis added). Given this failure, plaintiff Jue’s second claim must be DISMISSED.
B. Injury Remediable by the Relief Requested
While plaintiff’s failure to plausibly establish injury-in-fact is alone sufficient to dismiss
her unfair competition claim for lack of standing, this order will briefly tee up a second defect
with standing that must be addressed if and when counsel seeks leave to amend.
In the complaint, plaintiff Jue sought an injunction to force Costco to comply with the
IWC wage order mandating “suitable seating.” It is difficult to see, however, how such forwardlooking injunctive relief could remedy any injury suffered by Jue, or how she would stand to
benefit in any way, shape, or form from the injunction sought. She hasn’t worked at Costco for
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over a year. See Walsh v. Nevada Department of Human Resources, 471 F.3d 1033, 1036–37
(9th Cir. 2006) (holding that a plaintiff who was “no longer an employee of the [defendant]” and
had not alleged “any interest in returning to work” lacked standing to seek an injunction forcing
her former employer to adopt and enforce lawful discrimination policies).
If a motion to amend the complaint and to allow Mr. Mejia to intervene is brought,
counsel must address how Mejia — especially if he also no longer works for Costco — would
have standing to seek both restitution and injunctive relief under Section 17200. See Cal. Bus. &
Prof. Code § 17203 (authorizing only restitution and injunctive relief for claims based upon
Section 17200).
3. SUFFICIENCY OF CLASS ALLEGATIONS
Since Mr. Mejia will likely intervene in this action, it is premature to evaluate the
sufficiency of the class allegations in the current complaint. Both of plaintiff Jue’s claims have
been dismissed. Given this fact, it is likely that Mr. Mejia will become the new putative class
representative, as least as to the first claim under PAGA. Adding this new plaintiff will no doubt
involve different factual allegations specific to his claims. As such, the more prudent approach
would be to allow counsel to seek leave to amend the complaint (which will include a motion to
intervene by Mr. Mejia) by filing a properly noticed motion on the normal 35-day calendar, and
allow Costco to oppose the motion and raise these issues again (if necessary) as to the proposed
amended complaint.
That said, plaintiff is reminded that class certification discovery is not a substitute to the
pleading requirements of Rule 8 and Twombly. Class allegations must supported by sufficient
factual allegations demonstrating that the class device is appropriate and discovery on class
certification is warranted.
CONCLUSION
For the reasons set forth above, defendant’s motion is GRANTED. Claim one as to
plaintiff Jue is DISMISSED WITH PREJUDICE. Claim two as to plaintiff Jue is DISMISSED WITH
LEAVE TO AMEND. Plaintiff may file a properly noticed motion on the normal 35-day calendar to
seek leave to file an amended complaint (bundled with a motion to intervene by Mr. Mejia) no
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later than NOON ON THURSDAY, MARCH 25, 2010. The motion should address the issues raised
herein, with the proposed amended complaint attached as an exhibit.
IT IS SO ORDERED.
Dated: March 11, 2010.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
Case 3:10-cv-00033-WHA Document 24 Filed 03/11/10 Page 9 of 9 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-09-03284/USCOURTS-ca8-09-03284-0/pdf.json | [
[
"Siyad Warsame Ali",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | 1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3284
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Siyad Warsame Ali, *
*
Appellant. *
___________
Submitted: April 16, 2010
Filed: August 5, 2010
___________
Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Siyad Warsame Ali appeals his conviction on ten counts of aiding and assisting
in the preparation of false individual income tax returns, in violation of 26 U.S.C.
§ 7206(2). Ali contends that the district court1
committed reversible error in admitting
certain evidence and that the evidence was insufficient to support convictions on five
of the counts. We affirm.
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I.
Ali is a Somalian who first entered the United States in 1999 and began
assisting in the preparation of tax returns in 2001 in Minnesota. In 2002, Ali moved
his business, Cedar Tax Services, to Omaha, Nebraska. Cedar Tax Services first
operated out of a grocery store near 25th and Leavenworth Streets and then relocated
to an office building at 48th and Dodge Streets, near the South Sudan Community
Association.
Ali had sole signature authority for Cedar Tax Services’ bank account. Cedar
Tax Services’ unique electronic filing identification number (EFIN) was registered
solely to Ali. Ali had the ability to provide refund checks to his clients, using refund
anticipation loans and rapid anticipation checks through HSBC Taxpayer Financial
Services (HSBC). Three employees worked for Ali at Cedar Tax Services.
The Internal Revenue Service (IRS) began investigating Cedar Tax Services in
2004 after receiving a report from its Fraud Detection Center (FDC). The report
analyzed the 2003 returns filed under Ali’s EFIN and revealed that 98.5% of those
returns claimed refunds and 87% claimed the earned income tax credit.
IRS Special Agent Derick Tarr received the FDC’s report and determined that
many of the characteristics of returns could indicate fraud. At Tarr’s request the FDC
completed a similar analysis of the 2004 returns filed under Ali’s EFIN. Tarr testified
that on the 2004 returns 98% of the taxpayers claimed refunds and 75% claimed the
earned income tax credit. Tarr also discovered that ten percent of the dependents
claimed in 2003 were claimed by different taxpayers in 2004.
During Tarr’s review of the FDC findings, Maye Maragan sought assistance
from the IRS taxpayer services office in Omaha. Maragan explained to taxpayer
services, and subsequently to a criminal investigator, that Ali had prepared her 2003
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return, claiming a dependent whom she had never met. The criminal investigator
showed Maragan a photograph of Ali, which Maragan identified as depicting the
individual who prepared her 2003 return. Prior to seeking assistance with her 2004
return from the taxpayer services office, Maragan requested a copy of her 2003 return
from Ali. Ali claimed to have misplaced her return and offered to prepare her 2004
return with the same dependent that he had used on the 2003 return, provided that the
dependent was still “available.” Maragan declined his offer.
Maragan agreed to cooperate with the IRS’s investigation of Ali and to wear a
wire to record a conversation with Ali in exchange for $1,000. On March 15, 2005,
Maragan recorded a conversation with Ali regarding the preparation of her return and
the availability of a dependent to increase her refund. When Maragan asked if Ali
could find her another “kid,” Ali responded “Now it’s too late, but we can try. We
will look for one.” Ali later told Maragan:
Yeah, I will see what I . . . if I get some for you. But now it’s already too
late, but we will see what we can do for you . . . no promises because it’s
too late. It’s almost, in fact it’s almost ending now, you know? . . . [B]ut
we will find it. If there’s something, we’ll find it, and will let you know.
On April 11, 2005, Maragan placed a monitored telephone call to Ali to inquire about
her 2004 return. Ali explained to her that she had turned down his offer to prepare the
2004 return with the same dependent as the 2003 return and that now the dependent
was “already passed to someone else.”
The IRS executed a search warrant at Cedar Tax Services on April 15, 2005.
Agent Tarr testified that software used to prepare the returns he investigated prompted
the filer to list the name of the dependent, the social security number of the dependent,
the dependent’s relationship to the taxpayer, and the number of months that the
dependent lived with the taxpayer. Agents also seized Form 8453 documents, which
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were signed by the taxpayer and the electronic return originator pursuant to an
electronic filing. One document seized was a note to Ali regarding a client, stating
that the return was put on hold because the taxpayer was “going to find a kid to file.”
Ali was indicted on eleven counts of aiding and assisting the preparation of
fraudulent tax returns, encompassing eleven returns of nine taxpayers during the 2003
and 2004 tax years. At trial, the government maintained that Ali solicited African
immigrant clients and suggested that they could increase their tax refund by claiming
dependents and credits to which they were not entitled and that he ultimately took a
portion of the larger refund. Ali countered that his employees had prepared many of
the fraudulent returns and that the taxpayers had provided false information for the
returns.
Thirteen taxpayers testified about Ali’s preparation of their tax returns. Many
of these witnesses testified that Ali provided them with the names of foster children
to claim as dependents in exchange for payment of a portion of the increased refund.
Other witnesses who supplied their own alleged foster child kept substantially more
of their refund. We summarize the witness testimony that is at issue in this appeal.
Rose Aganas (Count II) testified that she went to Ali for the preparation of her
2003 tax return. She told Ali that she was unmarried and had no children. She
received a larger refund than she was expecting and Ali explained to her that he had
added dependents to her file. Aganas did not know either of the foster children
declared on her return. Aganas gave half of her refund to Ali, because Ali claimed it
was to pay the family of the children listed on her return.
Aganas had also claimed foster children dependents on her 2002 return. The
2002 foster children she claimed had different names and social security numbers than
the children listed on her 2003 return. Aganas could not recall who prepared her 2002
refund, only that it was prepared near 24th and Leavenworth Streets.
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Butras Kuku (Count IV) testified that when Ali assisted him with his 2003 tax
return, Ali told Kuku, “If you have a kid, you will get a lot of money.” When Kuku
stated that he did not have children, Ali replied “If . . . somebody you know can find
a kid, then I can file it for you.” Ali instructed Kuku to leave his documents at the
office and to look for a dependent to claim. Ultimately, two dependents were listed
as foster children on Kuku’s 2003 return. Kuku provided the name and social security
number of his nephew and Ali provided the name and social security number of a
second child, whom Kuku had never met. Kuku’s return also claimed a fuel tax credit,
a credit typically utilized by individuals engaged in farming or commercial fishing.
On cross-examination, Kuku testified that his nephew was claimed as a dependent on
his 2002 return, which Ali prepared. When Kuku initially spoke to Agent Tarr, he
told Tarr that the first time he met Ali was for the preparation of his 2003 return.
Simon Majok (Counts V and X) testified that he went to Ali for the preparation
of his 2003 tax return. After Majok informed Ali that he was single, Ali advised
Majok that “if you have something to claim, that’s when you can get money.
Otherwise they’re going to claim—they’re after your money because you’re single.”
Ali found two children, whom Majok had never met, for him to claim as foster
children on his 2003 return. When Majok returned to Ali’s office to collect his
refund, Ali advised Majok that Ali needed $2000 for the children. Majok and Ali
argued about the money, but ultimately Majok paid Ali. Majok returned to Ali for the
preparation of his 2004 return. For this return, Majok supplied the information for
a neighbor’s children. Ali did not inquire whether the children lived with Majok, were
related to him, or were foster children, as Ali had listed them on the return. At trial,
Majok was not able to identify Ali.
Joseph Malou (Count VII) testified that he went to Ali for the preparation of his
2002 return. When Malou informed Ali that he did not have a child, Ali encouraged
him to find a child to claim as a dependent. Malou found a mother who allowed him
to use one of her children as a dependent and returned to Ali with the child’s name and
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social security number. Ali listed the child as a foster child on the return without
inquiring whether the child lived with Malou or if Malou supported the child. Ali
prepared Malou’s 2003 return and Malou received permission from the same woman
to claim two of her children as dependents. Ali did not inquire whether Malou
supported the children. Malou returned to Ali a third time for the preparation of his
2004 return and again claimed the same two dependents. Malou testified that he had
told Agent Tarr during the investigation that Ali had provided the information for the
fraudulently claimed dependents and that Malou had lied to Agent Tarr because he
was scared.
Additionally, four taxpayers whose returns did not form the basis for indicted
counts testified that Ali either supplied dependents for them to claim on their returns
or encouraged them to seek out children to fraudulently claim as their dependents.
Taxpayers Aganas, Kuku, and Malou filed 2002 returns that falsely claimed
dependents. No preparer was listed on those returns. In an attempt to link Ali to the
returns, the government introduced exhibit 95, which included a letter from Gladys
Hall, loss prevention manager at HSBC. Hall’s letter stated:
Per your request, this is a written statement to verify that [Aganas, Kuku,
and Malou] filed 2002 income tax returns with Cedar Tax Services and
applied for Refund Anticipation Checks. Upon receipt of funds from the
Internal Revenue Service (IRS), authorizations were sent to the office of
Cedar Tax Services to print the checks. The checks were printed at
Cedar Tax Services, owned by Siyad Ali at 2555 Leavenworth Street,
Omaha, NE 68105.
The exhibit also included the HSBC records for each taxpayer’s 2002 refund
anticipation check and copies of the cashier’s checks issued to the taxpayers. The
documents and letter were accompanied by a certification from Brian Wilson,
custodian of records for HSBC, that they were made in the regular course of business.
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Ali objected to exhibit 95 on the grounds of foundation and relevance. The
government argued that the documents were admissible as business records under
Federal Rule of Evidence 803(6) and were self-authenticating under Rule 902(11).
The district court overruled Ali’s objection and admitted the documents.
Ali raises several evidentiary issues and challenges the sufficiency of the
evidence on the counts related to Aganas, Kuku, Malou, and Majok.
II.
A. Confrontation Clause
Ali argues that exhibit 95 was testimonial and that its admission violated his
rights under the Confrontation Clause of the Sixth Amendment in light of
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). Our review is limited to
plain error because Ali failed to object to the exhibit on the basis of the Confrontation
Clause. See Puckett v. United States, 129 S. Ct. 1423, 1428-29 (2009); see also Fed.
R. Evid. 103; United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc)
(explaining that an objection must be timely and clearly state grounds for objection
to preserve error for appellate review); United States v. Thornberg, 844 F.2d 573, 575
(8th Cir. 1988) (“[P]reserving an issue is a matter of making a timely objection to the
trial court and clearly stating the grounds for an objection, so that the trial court has
an opportunity to prevent or correct the error in the first instance.”). Plain error
review requires Ali to show that (1) there was an error that was not affirmatively
waived, (2) the error was “plain,” meaning clear and obvious, (3) the error affects his
substantial rights, and (4) the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Puckett, 129 S. Ct. at 1429 (citation and internal
quotation marks omitted); see United States v. Marcus, 130 S. Ct. 2159, 2164 (2010).
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In Melendez-Diaz, the Court held that admission of laboratory reports via a
“certificate of analysis,” rather than through the live testimony of the laboratory
analyst violated the Confrontation Clause. 129 S. Ct. at 2542. The Court explained
that the laboratory reports were testimonial because they were prepared for the
purpose of providing evidence against the accused at trial. Id. at 2532. Melendez
Diaz, however, does not apply to the HSBC business records that were kept in the
ordinary course of business. These documents were nontestimonial and thus do not
implicate the Confrontation Clause. See United States v. Mashek, 606 F.3d 922, 930
(8th Cir. 2010) (citing Crawford v. Washington, 541 U.S. 36, 56 (2004)).
Accordingly, the district court did not err in admitting the bank records that had been
certified by HSBC’s custodian of records.
The letter from the HSBC loss prevention manager summarized HSBC’s receipt
and processing of the 2002 tax returns for Kuku, Malu, and Aganes. The letter was
arguably equivalent to live, in-court testimony and thus not admissible as a business
record. Ali did not object to the admission of the letter on Confrontation Clause
grounds, however, and so even if we assume that the letter should not have been
admitted, Ali cannot show that his substantial rights were affected. The letter
addressed only three tax returns, none of which formed a basis for the indicted
offenses. Ali’s argument that the government could not prove that he had proposed
adding false dependents without exhibit 95 is unpersuasive in light of the testimony
by Kuku and Malou that Ali had prepared their 2002 returns and Aganas’s testimony
that her return was prepared near 24th and Leavenworth, a location at which Ali
admitted he prepared tax returns. The properly admitted bank records showed that
Kuku’s, Malu’s, and Aganas’s 2002 returns were prepared with the same EFIN. Any
error in admitting the letter thus did not affect Ali’s substantial rights.
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B. 404(b) Evidence of Uncharged Misconduct
Ali argues that the district court abused its discretion when it admitted under
Rule 404(b) the testimony of four taxpayers whose returns did not form the basis for
any of the indicted counts. Admission of Rule 404(b) evidence is normally reviewed
for abuse of discretion, but when a litigant fails to object when the evidence was
introduced, its admission is reviewed for plain error. United States v. Koski, 424 F.3d
812, 817 (8th Cir. 2005). Ali raised a relevance objection to three of the Rule 404(b)
witnesses, while one Rule 404(b) witness testified without objection. We need not
resolve whether any Rule 404(b) error was preserved, because regardless of the
standard of review Ali’s claims fail.
Rule 404(b) prohibits the admission of prior bad act evidence when it is offered
to prove the defendant’s “conformity therewith.” Prior bad act evidence is admissible,
however, when introduced for certain limited purposes and it (1) is relevant to a
material issue, (2) is similar in kind and close in time to the crime charged, (3) is
proven by a preponderance of the evidence, and (4) does not have a prejudicial effect
that substantially outweighs the probative value. United States v. Turner, 583 F.3d
1062, 1065-66 (8th Cir. 2009), cert. denied, 130 S. Ct. 1928 (2010). Valid purposes
for introduction include “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, or accident.” Fed. R. Evid. 404(b). We
will reverse “only when such evidence clearly ha[s] no bearing on the issues in the
case and was introduced solely to prove the defendant’s propensity to commit criminal
acts.” United States v. Benitez, 531 F.3d 711, 716 (8th Cir. 2008).
For each count, Ali’s defense was either that his employees were responsible
for the information contained in the tax returns or that he was relying on the
representations made to him by the taxpayers. By claiming that he did not have
knowledge that the representations were false, Ali put the willfulness of his conduct
at issue, thus allowing the government to introduce evidence of his intent. Even if Ali
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did not actively dispute intent for each count, it was permissible for the government
to present evidence of willfulness. See United States v. Walker, 428 F.3d 1165, 1170
(8th Cir. 2005) (“The mere fact that [the defendant] did not actively dispute motive
or intent did not preclude the government from offering otherwise admissible evidence
as to these factors.”). Thus, the prior acts evidence was relevant on the issue of
whether Ali willfully committed tax fraud.
All of the prior acts evidence is sufficiently contemporaneous and similar in
kind to the crimes charged to satisfy Rule 404(b). See United States v. Shoffner, 71
F.3d 1429, 1432 (8th Cir. 1995) (“When admitted for the purpose of showing intent,
the prior acts need not be duplicates, but must be sufficiently similar to support an
inference of criminal intent.”). All four 404(b) witnesses testified that Ali either
provided a dependent for them or suggested that they find a dependent to claim. The
witness testimony and their tax returns established Ali’s prior conduct by a
preponderance of the evidence. Finally, the prior acts evidence was highly probative
given the similarity between the prior acts and indicted counts, and Ali has failed to
demonstrate a risk of unfair prejudice. See United States v. Gipson, 446 F.3d 828,
831 (8th Cir. 2006).
For all of these reasons, we conclude that the district court did not abuse its
discretion in admitting the Rule 404(b) evidence. Moreover, because of the strength
of the government’s other evidence, any error in admission of the evidence was both
harmless and did not affect Ali’s substantial rights.
C. Signature Testimony
Ali argues that the district court erred by allowing Agent Tarr to testify that the
signatures on the Form 8453 documents, exhibits 37 through 44, appeared similar to
the signatures on Ali’s bank and fingerprint cards. Ali did not object to the testimony,
and so again we review for plain error. Puckett, 129 S. Ct. at 1428-29.
Appellate Case: 09-3284 Page: 10 Date Filed: 08/05/2010 Entry ID: 3690645
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Exhibits 37 through 44 were admitted into evidence after Agent Tarr testified
that they were the forms that were seized from Cedar Tax Services during the
execution of the search warrant. Tarr testified that they appeared to be signed by the
taxpayers and the return preparer and that the names of the taxpayers corresponded
with the taxpayers named in the indictment. Tarr testified that during the investigation
he obtained Ali’s bank signature card and signed fingerprint card. Tarr answered
affirmatively the question of whether the signatures on those forms “appear to be
similar to the signatures contained on exhibits 37 through 44.”
For the exhibits to be offered as proof that the signature was Ali’s, the evidence
had to comply with both Federal Rules of Evidence 901 and 701. See United States
v. Scott, 270 F.3d 30, 49 (1st Cir. 2001) (requiring satisfaction of both rules to
authenticate a document as evidence that tended to prove that the handwriting
belonged to the defendant). Rule 901(b)(2) provides that one way to authenticate a
document, a condition precedent to admissibility, is to provide a nonexpert opinion
on the genuineness of the handwriting, based upon familiarity not acquired for
purposes of the litigation. Rule 701 permits a lay witness to provide “opinions or
inferences which are (a) rationally based on the perception of the witness, and (b)
helpful to a clear understanding of the witness’s testimony or the determination of a
fact in issue, and (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.”
We have held that an officer’s single exposure to an uncontested signature and
a single exposure to a contested one constituted adequate familiarity under Rule
901(b)(2) to permit authentication testimony. United States v. Standing Soldier, 538
F.2d 196, 202 (8th Cir. 1976). In Standing Soldier, the officer was permitted to testify
that he had compared the signature on the document in question with that of the
appellant on the signed statement and found them to be the same. Id. Contrary to
Ali’s contention, observing Ali producing his signature is not the only way that Tarr
could obtain the familiarity necessary to authenticate the signature. “Other categories
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of experience can . . . demonstrate familiarity, such as seeing signatures on writings
purporting to be those of the alleged author when the circumstances would indicate
that they were genuine.” Scott, 270 F.3d at 50; see Standing Soldier, 538 F.2d at 202
(“Because the signature on the prior signed statement was clearly made in
circumstances indicating its genuineness, Captain Hill possessed an adequate
familiarity with the appellant’s signature to authenticate the note.”). During the
investigation Agent Tarr gained familiarity with Ali’s bank signature card and
fingerprint card, which have indicia of reliability. Agent Tarr’s familiarity with Ali’s
signature was sufficient to authenticate the exhibits.
Turning to Rule 701, in United States v. Garth, we upheld the district court’s
admission of an IRS investigating agent’s testimony that all the preparer signatures
on fraudulent returns appeared to be in similar handwriting, concluding that the
testimony was “rational, helpful, and not based on expert knowledge.” 540 F.3d 766,
778-79 (8th Cir. 2008), abrogated on other grounds by United States v. VillarealAmarillas, 562 F.3d 892 (8th Cir. 2009). Agent Tarr was not making a scientific,
technical or specialized handwriting analysis. Rather, he simply testified that the
signatures on Ali’s bank and fingerprint cards appeared to be similar to the signatures
on the Form 8453 documents. Tarr’s testimony was rational, helpful, and not based
on expert knowledge. See id. at 779. Although we noted in Garth that all the
documents were admitted into evidence for the jury to consider, whereas in this case
the bank signature card and fingerprint card were not entered into evidence, our
holding was not predicated on that circumstance.
Ali has failed to demonstrate prejudice such that the admission Tarr’s testimony
about his signature affected his substantial rights. See Marcus, 130 S. Ct. at 2164.
Each of the taxpayers whose Form 8453 documents were presented testified that Ali
had prepared their returns, and Agent Tarr stated his opinion only once. Thus, there
was substantial other testimony that Ali prepared the returns. Moreover, Ali could
have cross-examined Tarr on his limited familiarity with Ali’s signature.
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D. Sufficiency of the Evidence
Pointing to discrepancies and inconsistencies in the testimony, Ali argues that
the evidence presented at trial was insufficient to support his conviction on Counts II,
IV, V, VII, and X. We review the sufficiency of the evidence de novo, viewing the
record in the light most favorable to the verdict and accepting all reasonable
inferences that support the verdict. United States v. Hamilton, 332 F.3d 1144, 1148
(8th Cir. 2003). “We reverse only if no reasonable jury could find the defendant
guilty beyond a reasonable doubt.” United States v. Spears, 454 F.3d 830, 832 (8th
Cir. 2006). We do not weigh the evidence or assess the credibility of the witnesses.
Id. The jury has the responsibility of resolving conflicts or contradictions in
testimony, and we resolve any credibility issues in favor of the verdict. Id.
An offense under 26 U.S.C. § 7206(2) has three essential elements: (1) the
defendant aided, assisted, procured, counseled, advised or caused the preparation and
presentation of a return; (2) the return was fraudulent or false as to a material matter;
and (3) the act of the defendant was willful. See United States v. Sassak, 881 F.2d
276, 278 (6th Cir. 1989).
1. Counts II, IV and VII
Ali argues that sufficient evidence was not presented to establish that Ali knew
that the dependents were fraudulently claimed for Counts II (Rose Aganas), IV
(Butras Kuku), and VII (Joseph Malou). Ali highlights discrepancies in the evidence
and points to evidence suggesting that he may not have proposed the fraudulent
deductions. Each taxpayer testified that Ali proposed the addition of dependents on
his or her return. We decline to resolve any contradictions in the testimony, as that
is the jury’s task. For each count there was sufficient evidence admitted from which
a reasonable jury could conclude beyond a reasonable doubt that Ali committed the
offenses.
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2. Counts V and X
Ali argues that because Simon Majok was unable to make a courtroom
identification of Ali, the government failed to offer sufficient evidence that Ali
prepared the returns involved in counts V and X. Majok testified that he went to Ali’s
Dodge Street office and met with a man who said that his name was Siyad Ali. Majok
described an interaction similar to many other taxpayers, in which Ali provided him
with a dependent to claim and then demanded payment from the increased refund.
Majok’s 2003 and 2004 returns list Ali as the paid preparer. Ali argues that he had
several assistants who had full access to the return preparation software and that other
taxpayers reported that their returns were prepared by Ali’s assistants. Accepting as
we must all reasonable inferences that support the verdict, we conclude that Ali has
failed to establish that no reasonable jury could find him guilty beyond a reasonable
doubt.
III.
The judgment is affirmed.
______________________________
Appellate Case: 09-3284 Page: 14 Date Filed: 08/05/2010 Entry ID: 3690645 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_20-cv-00956/USCOURTS-caed-2_20-cv-00956-0/pdf.json | [
[
"Anthony Roberson",
"Petitioner"
],
[
"Unknown",
"Respondent"
]
] | 1
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1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ANTHONY ROBERSON,
Petitioner,
v.
UNKNOWN,
Respondent.
No. 2:20-cv-0956 DB P
ORDER
Petitioner, a state prisoner at California State Prison, Corcoran, has filed a document
styled as a motion to stay this action. (ECF No. 1.) No other pleadings have been filed by the
petitioner. In order to commence an action, petitioner must file a petition for writ of habeas
corpus as required by Rule 3 of the Rules Governing Section 2254 cases, and petitioner must
either pay the required filing fee or file an application requesting leave to proceed in forma
pauperis. See 28 U.S.C. §§ 1914(a), 1915(a). The court will not issue any orders granting or
denying relief until an action has been properly commenced. Therefore, petitioner’s motion will
be denied without prejudice. Petitioner will be provided the opportunity to file his petition, and to
submit an application requesting leave to proceed in forma pauperis or to submit the appropriate
filing fee.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner’s motion to stay (ECF No. 1) is denied without prejudice;
2. Petitioner is granted sixty days from the date of service of this order to file a petition
Case 2:20-cv-00956-JAM-DB Document 3 Filed 05/14/20 Page 1 of 2
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that complies with the requirements of the Rules Governing Section 2254 Cases, the Federal
Rules of Civil Procedure, and the Local Rules of Practice; the petition must bear the docket
number assigned this case; petitioner must file an original and two copies of the petition.
Petitioner shall also submit, within thirty days from the date of this order, the application to
proceed in forma pauperis on the form provided by the Clerk of Court, or the filing fee in the
amount of $5.00. Petitioner’s failure to comply with this order will result in a recommendation
that this matter be dismissed; and
3. The Clerk of the Court is directed to send petitioner the court’s form for filing a
petition for writ of habeas corpus, and the application to proceed in forma pauperis by a prisoner.
Dated: May 5, 2020
/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
DB:12
DB:1/Orders/Prisoner/Habeas/robe0956.nopetition
Case 2:20-cv-00956-JAM-DB Document 3 Filed 05/14/20 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-3_10-cv-00257/USCOURTS-ared-3_10-cv-00257-6/pdf.json | [
[
"Anco Construction Inc",
"Defendant"
],
[
"Charlie Biggins",
"Plaintiff"
],
[
"Biggins Construction",
"Plaintiff"
],
[
"United Fire & Casualty Company",
"Defendant"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
CHARLIE BIGGINS,
dfb/a Biggins Construction
v. No. 3:10-cv-257-DPM
PLAINTIFF
ANCO CONSTRUCTION INC.; and
UNITED FIRE & CASUALTY COMPANY DEFENDANTS
ORDER
The parties have settled. NQ 59. Congratulations. The stay is lifted and
the complaint will be dismissed with prejudice.
So Ordered.
D.P. MarshalfJr.
United States District Judge
Case 3:10-cv-00257-DPM Document 60 Filed 01/23/17 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca1-13-02291/USCOURTS-ca1-13-02291-0/pdf.json | [
[
"Ismael E. Cruz-Ramos",
"Appellant"
],
[
"United States",
"Appellee"
]
] | United States Court of Appeals
For the First Circuit
Nos. 13-2285
13-2289
13-2291
13-2320
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO LUIS RAMÍREZ-RIVERA, a/k/a Peter Pai;
JOSÉ LAUREANO-SALGADO, a/k/a Geo; and
ISMAEL E. CRUZ-RAMOS, a/k/a Chapu,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge,
Hon. William E. Smith, U.S. District Judge]
Before
Thompson, Lipez, and Barron,
Circuit Judges.
Henry E. Marines, with whom Law Offices of Henry E. Marines,
Claudia Ima, and Law Offices of Claudia Ima were on brief, for
Pedro Luis Ramírez-Rivera and José Laureano-Salgado.
Ruth M. Liebesman, with whom Law Office of Ruth M. Liebesman
was on brief, for Ismael E. Cruz-Ramos.
Victor O. Acevedo-Hernandez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Francisco A. Besosa-Martínez,
Case: 13-2291 Document: 00116880583 Page: 1 Date Filed: 08/26/2015 Entry ID: 5932773
Assistant United States Attorney, were on brief for the United
States.
August 26, 2015
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THOMPSON, Circuit Judge. After a jury convicted
Defendants-Appellants José Laureano-Salgado, Pedro RamírezRivera, and Ismael Cruz-Ramos (collectively, "the Defendants")1 of
numerous drug and gun crimes, a district court judge sentenced
them all to life in prison. The Defendants now ask us to overturn
their convictions and sentences, or, at the least, send their case
back for a new trial.
For the reasons discussed below, we reverse Cruz-Ramos's
conviction and sentence and remand his case for a new trial. We
1 Laureano-Salgado and Ramírez-Rivera filed a joint brief,
and Cruz-Ramos filed a separate brief. Laureano-Salgado and
Ramírez-Rivera sought to join Cruz-Ramos's arguments and viceversa. But Laureano-Salgado and Ramírez-Rivera attempted to do so
only by stating (in their reply brief) that "to the extent they
are applicable" they "join the arguments raised . . . [by] coappellant Cruz-Ramos."
While Federal Rule of Appellate Procedure 28(i) permits coappellants to "adopt by reference a part of another's brief," as
we have reminded litigants in the past, "[a]doption by reference
cannot occur in a vacuum and the arguments must actually be
transferable from the proponent's to the adopter's case." United
States v. Brown, 669 F.3d 10, 16 n.5 (1st Cir. 2012). Therefore,
where, as here, an appellant "offer[s] no explanation as to why
[his co-appellant's] arguments pertained to him," such "textbook
perfunctory" treatment waives the appellant's attempts to adoptby-reference his co-appellant's arguments. Id. (emphasis
omitted); see also United States v. Espinal-Almeida, 699 F.3d 588,
599 n.9 (1st Cir. 2012) (a criminal defendant's mere statement
that he "joins in any and all other arguments raised by the other
criminal co-defendants that are applicable to his case" is not
sufficient (alterations omitted)).
Because we find that none of Laureano-Salgado and RamírezRivera's arguments are meritorious, we need not address whether
Cruz-Ramos (who did a little more than a bare-bones statement)
effectively joined his co-Defendants' arguments.
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affirm Laureano-Salgado's and Ramírez-Rivera's convictions and
sentences.
BACKGROUND
To give a lay of the land, we start with only a brief
overview of this case. We fill out relevant portions of the story
-- in, as we invariably explain, whatever light our law demands,
and relying on whatever record support is appropriate -- as they
are needed throughout our analysis of the various issues the
Defendants have raised.
How It Began2
Until 2004, the majority of street-level drug sales in
the San Juan-metropolitan area of Puerto Rico were controlled by
gangs operating out of public housing projects. Sales in each
housing project were generally controlled by each project's own
drug gang.
The name of the game back then was control of the drug
points, and the gangs fought for decades to maintain and grow their
territories. The violence that accompanied their disputes
naturally drew the attention of both local and federal authorities.
As a result, drug sales took a hit, and large conspiracy
indictments were handed down.
2 Because we provide this basic factual background only to
frame the case, we pulled some of these particular facts from the
allegations made in the indictment, while other facts we gleaned
from pre-trial and trial testimony.
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Around 2004, nearly all the drug gang leaders from the
area reached an agreement that to reduce the inter-project
conflicts and keep the cops away, they would form an alliance.
They named it "La Organización de Narcotraficantes Unidos"
(Spanish for "The Organization of United Drug Traffickers"), or
"La ONU" for short. The leaders agreed that if a conflict arose
among La ONU members, they would meet to discuss it (as opposed to
immediately resorting to shootouts). Under the new regime, La ONU
members would be permitted to visit other La ONU-affiliated housing
projects (and to also sell drugs there), so long as they got
permission from that project's leader. The La ONU leaders also
met regularly to discuss drug-related issues and to resolve
conflicts.
While the alliance operated "for a time," for reasons
unknown it "weakened" as certain gangs grew "disgruntled" with La
ONU and "sought to break off." Sometime around 2008, La ONU ended
up breaking into two groups -- La ONU and "La Rompe ONU" (known as
"La Rompe" for short, which translates to "the break"). Each
project-gang went all-in with either La ONU or La Rompe. La ONUcontrolled projects included Las Dalias, Las Gladiolas, El Prado,
and Los Jardines de Selles, while La Rompe-controlled projects
included Trujillo, Cupey, and Alturas de Cupey. The two factions
soon became equally sized and eventually, they became bitter
rivals.
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With the rising of La Rompe, La ONU's direction changed.
Its mission became to "maintain control over the drug points in
their housing projects by force and to kill La Rompe members and
leaders in order to expand." The organization's "unwritten" rules
required that La ONU members remain loyal to each other, while
relentless to the enemy. La ONU members could not kill other La
ONU members without go-ahead from the leadership; nor could they
overtake La ONU-owned drug points. Not only were La ONU members
forbidden from associating with La Rompe members, they were also
required to kill them on-sight. La ONU members were not permitted
to cooperate with law enforcement. And breaking any of these rules
meant death to the traitor (and/or his family members).
LA ONU leaders continued to meet with each other to
resolve internal conflicts and discuss strategy for overtaking
drug points at other (La Rompe-controlled) housing projects. They
regularly pooled resources to buy weapons and cars. When attacks
on La Rompe members would go down, each La ONU project contributed
an enforcer (i.e., hit man).
La ONU also continued to traffic drugs (crack, cocaine,
heroin, and marijuana) and committed various violent acts
(including murders) to enforce its rules and grow its territory.
For instance, La ONU put hits out on La Rompe leaders. La ONU
launched machine-gun shootouts in La Rompe projects. During one
such shootout near Trujillo Alto Bridge, two women -- a police
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officer and librarian -- were killed. La ONU was also connected
to the May 2010 shooting take-down of a police helicopter,
allegedly committed by Edwin Bernard Astacio Espino ("Bernard"),
a La ONU member.
Betraying La ONU called for an equally devastating fate.
For instance, when a La ONU member stole a gun and gave it to a La
Rompe member, he too, was killed. So was a La ONU leader who got
caught stealing drugs from the organization, and a member who
cooperated with police.
After the helicopter shooting, an arrest warrant was
issued for Bernard (whom the police apparently could not find).
The police caught a lucky break in August 2010, when an informant
tipped them off that Bernard was hiding out at Cruz-Ramos's house,
stashing weapons and drugs. Afraid they would miss the chance to
arrest Bernard if they waited any longer, the police searched CruzRamos's house (without a warrant), found Bernard, arrested him
(and the several other people in the house, including Cruz-Ramos),
and seized the drugs and guns they found at the home. Police also
arrested other La ONU members for various crimes around 2010 to
2011.
The Crackdown
With that, in March 2012, a grand jury indicted 33 people
for their alleged involvement in La ONU from 2004 through March
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2012.3 The charges included drug trafficking, firearms crimes,
murder, and attempted murder. The indictment accused all the
Defendants of being members of La ONU.
Amongst the indictment's 33 counts, the Defendants here
were charged with five:
Count 1: racketeering conspiracy from 2004 through
March 2012, in violation of the Racketeer Influenced
and Corrupt Organizations Act ("RICO"), 18 U.S.C.
§ 1962(d);
Count 2: conspiracy to possess with intent to
distribute a controlled substance, in violation of 21
U.S.C. §§ 846 and 860;
Count 3: conspiracy to possess firearms during and in
relation to narcotics trafficking offenses, in
violation of 18 U.S.C. § 924(o);
Count 29: violent crime in aid of racketeering
activity, in violation of 18 U.S.C. § 1959(a)(1)
(specifically, for the August 2010 murder of Christian
Toledo-Sánchez, known as "Pequeque"); and
3 The original indictment named 32 people, but a few months
later the government filed a superseding indictment and added an
additional defendant.
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Count 30: use and carry of a firearm in relation to a
crime of violence (i.e., Pequeque's murder), in
violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(j)(1).4
Pre-Trial Motions
Puerto Rico District Court Judge José A. Fusté was
assigned to preside over the 33-person case, but at some point the
indicted defendants were split up into two groups for purposes of
trial (one group being the defendants who were facing the death
penalty, and the other group being the defendants who were not).
Judge Fusté presided over the trial of the death-eligible
defendants, and Judge William E. Smith, a Rhode Island district
judge, sat in designation to preside over the trial of the noncapital defendants (including Cruz-Ramos, Laureano-Salgado, and
Ramírez-Rivera).5 Judge Smith also addressed many of the numerous
pre- and post-trial issues that arose for the non-capital group.
4 The Defendants were also charged under 18 U.S.C. § 2, the
aiding and abetting statute, for each of these counts. It
provides:
(a) Whoever commits an offense against the
United States or aids, abets, counsels,
commands, induces or procures its commission,
is punishable as a principal.
(b) Whoever willfully causes an act to be done
which if directly performed by him or another
would be an offense against the United States,
is punishable as a principal.
5 Par for the course, most of the indicted defendants pleaded
out prior to trial.
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As motion practice took way, and as jury selection in
the Defendants' case lingered imminent, the government asked the
district court to empanel an anonymous jury because the Defendants
were "part of an organized crime ring that is both willing and
able to intimidate and harm jurors."6 Over the Defendants'
constitutional objections, Judge Fusté (who was in charge of jury
selection, even though he did not preside over the non-capital
Defendants' trial) allowed the motion in-part, and resolved to
place the seated jurors' names, addresses, and places of employment
under seal because the Defendants in fact had "shown that they are
part of an organized crime ring that is both willing and able to
intimidate and harm jurors." The judge also ordered the jurors
not to divulge information during voir dire that would disclose
their identities.
Shortly after that motion was resolved, the government
notified the Defendants and the court that it intended to offer as
evidence at trial the firearms and drugs that police seized from
Cruz-Ramos's home in August 2010. Cruz-Ramos moved to suppress
all that evidence, arguing that the warrantless search of his home
6 28 U.S.C. § 1863(b)(7) allows district courts to empanel
anonymous juries "where the interests of justice so require."
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was illegal. After a two-day evidentiary hearing, Judge Smith
denied in-part the motion to suppress.7
Jury Empanelment
Judge Fusté empaneled the jury for the non-capital trial
on January 23, 2013, several days before the trial was scheduled
to start.8 The instant Defendants and their attorneys were present
for jury selection.
During voir dire (i.e., the process during which the
court questions the potential jurors to determine whether they are
fit to sit on the jury), Judge Fusté informed the potential jurors
that their names, addresses, and places of employment would be
kept anonymous, and that they would each be assigned an identifying
number to "ward off curiosity and seekers of information that might
otherwise infringe on [their] privacy."
The judge asked the jurors numerous questions during
voir dire, and instructed them to raise their hands if the answer
was "yes" to any of the questions, after which point the court
would individually address their concerns. Among numerous other
topics, the judge asked a question about the jurors' familiarity
with the 2010 police helicopter shooting. He informed the jurors
7 Judge Smith announced his decision on the motion to suppress
at the Defendants' pre-trial conference and later issued a detailed
written ruling.
8 Judge Smith was listening in remotely, but did not
participate during the jury selection.
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that while La ONU was "associated" with the incident, the shooting
would not come up during the trial because the Defendants were not
charged with that shooting. Some of the jurors raised their hands
in response to the question, and the judge followed up with them
individually.
After voir dire concluded, the jury (including
alternates) was selected. But a few days before the start of
trial, Juror No. 30 wrote a letter to the court asking to be
excused because she was experiencing anxiety from having to sit on
the jury. In response, the Defendants asked the court to conduct
further voir dire of all the empaneled jurors, contending that
Juror 30 could have "infected" the other jurors "by creating bias
against" them.
Judge Fusté decided to interview Juror 30 (outside of
the Defendants' presence, though their lawyers were allowed to be
there) and concluded that she was unfit to serve on the jury for
mental health reasons (essentially, she was intimidated by the
Defendants). After the interview, Judge Fusté dismissed the juror
and replaced her with an alternate. He also denied the Defendants'
request to individually poll the other empaneled jurors.
The Trial and Sentencing
Judge Smith got started with the Defendants' trial on
February 7, 2013. Among the evidence the government presented was
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testimony from law enforcement and cooperating La ONU members, as
well as physical evidence police seized, like guns and drugs.
After seven days, the jury convicted the Defendants on
all counts. The Defendants then moved for either an acquittal or
a new trial based on lack of sufficient evidence, pursuant to
Federal Rules of Criminal Procedure 29(a) and 33. Judge Smith
denied the motions, finding that the government's presentation of
witness testimony and physical evidence "strongly supported" the
convictions. In October 2013, Judge Smith sentenced all the
Defendants to life in prison.9
Now on appeal the Defendants argue that numerous errors
occurred prior to and during the trial, such that their convictions
should be vacated -- or at the least that they should get a new
trial. Assuming those arguments do not convince us, the Defendants
further argue that their sentences were improper for various
reasons.
We address each of the Defendants' many arguments in
turn.
9 The judge gave Cruz-Ramos and Laureano-Salgado the same
sentence -- 40 years on Count One, 10 years on Count Two, 20 years
on Count Three, and life on Count 29, to run concurrently. He
also imposed 20 years to run consecutively on Count 30.
Ramírez-Rivera got the same sentence, with the only
difference being a 25-year term on Count 30.
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DISCUSSION
I. Sufficiency of the Evidence
We begin our task by addressing whether the evidence put
before the jury was sufficient to convict the Defendants. We
tackle this issue first because if the Defendants are right, the
remedy is about as drastic as they come -- we would have to throw
out their convictions, and because of the Double Jeopardy Clause
of the Fifth Amendment, the government would not get another shot
at re-trying them on these charges. See United States v. NegrónSostre, 790 F.3d 295, 306-07 (1st Cir. 2015). Of course, a
successful sufficiency challenge would then render all the
Defendants' other claims (of reversible trial and sentencing
error) moot.
We review sufficiency challenges de novo. Id. at 307.
We consider all the direct and circumstantial evidence in the light
most flattering to the government, "drawing all reasonable
inferences consistent with the verdict, and avoiding credibility
judgments, to determine whether a rational jury could have found
the defendants guilty beyond a reasonable doubt." Id. (internal
quotation marks and alteration omitted). Essentially, "we will
reverse only if the verdict is irrational." United States v.
Brandao, 539 F.3d 44, 50 (1st Cir. 2008) (internal quotation marks
omitted).
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In reviewing sufficiency challenges, we consider whether
all the evidence offered by the government and admitted by the
court was sufficient for a guilty verdict, even if the court
erroneously admitted some of that evidence.10 Lockhart v. Nelson,
488 U.S. 33, 34, 40-41 (1988).
Turning now to the evidence, there's no question that
the government's case against the Defendants (particularly when it
came to Laureano-Salgado and Ramírez-Rivera) heavily relied on
testimonial evidence from three cooperating witnesses who were
arrested around 2011 for their involvement with La ONU -- Christian
Figueroa-Viera, a hit man and "leader" for La ONU; José GutierrezSantana, known as "El Domi," who sold drugs for the organization;
and Wesley Figueroa-Cancel, also known as "Hueso," who was also a
La ONU leader.
The allegations in the indictment largely ended up
panning out at trial. According to the witnesses' testimony, from
around 2007 to 2011, La ONU operated as a "union" or "gang" of
10 The logic behind this rule is that "a reversal based solely
on evidentiary insufficiency has fundamentally different
implications, for double jeopardy purposes, than a reversal based
on such ordinary trial errors as the incorrect receipt or rejection
of evidence." Lockhart v. Nelson, 488 U.S. 33, 40 (1988) (internal
quotation marks omitted). That is, "[w]hile the former is in
effect a finding that the government has failed to prove its case
against the defendant, the latter implies nothing with respect to
the guilt or innocence of the defendant, but is simply a
determination that [he] has been convicted through a judicial
process which is defective in some fundamental respect." Id.
(internal quotation marks omitted).
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drug dealers from several housing projects (including Las Dalias,
Las Gladiolas, El Prado, and Los Jardines de Selles), which had
the goal of "control[ling] the other housing projects and thus
have more power." La ONU's main rival was La Rompe, which
controlled projects like Trujillo, Cupey, and Alturas de Cupey.
The two gangs were at "war" over the "control of the
drug points." Dominating the drug points was important to La ONU
for a simple reason: by eliminating the competition in the La
Rompe-controlled projects, La ONU could earn more drug money.
To effectuate its goals, La ONU had rules. If you see
an enemy, kill him. Don't cooperate with police. And don't
associate with the enemy. The punishment for breaking a rule was
death.
The evidence showed that La ONU walked the walk, and not
only were La Rompe members attacked and killed, disloyal La ONU
were in fact punished by death. For instance, around 2008 or 2009,
a La ONU member stole a rifle and gave it to a La Rompe member.
After he confessed to giving the rifle to the enemy, La ONU members
killed him. In 2009, a La ONU leader was killed for stealing drugs
from the organization. And yet another La ONU member was killed
for cooperating with police. The witnesses testified that it was
important to participate in these types of violent acts to maintain
their status with La ONU, even though that might mean killing
police officers. It was necessary for members to maintain their
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positions in La ONU because "once you join the organization, you
can't get out."
The testimony also demonstrated that Defendant RamírezRivera was the heroin point owner in both Las Gladiolas and Las
Dalias, as well as a La ONU leader. Ramírez-Rivera was so high up
in the organization that without his permission, "nothing could be
done," according to Gutierrez-Santana. And Ramírez-Rivera ordered
other La ONU members to kill La Rompe associates. In addition to
supplying heroin, weapons, and ammunition to the organization,
Ramírez-Rivera also provided the cash to buy weapons and cars. And
he sometimes lent his own gun to La ONU members when they went to
other projects for a shooting.
From around 2008 to 2011, Defendant Laureano-Salgado
served as Ramírez-Rivera's drug runner (meaning he brought product
to drug points and picked up the money the drug points earned),
and was a cocaine point owner at Las Gladiolas.
Defendant Cruz-Ramos was a heroin point owner at Las
Gladiolas and provided firearms to the La ONU members who were
from Las Gladiolas. He also lent weapons, including an AK-47, to
other La ONU members.
To prepare for shootouts, La ONU generally held
meetings, which were always conducted by the same people (including
Cruz-Ramos, Ramírez-Rivera, and Laureano-Salgado).
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The government also elicited testimony about several La
ONU-sanctioned murders, but at trial the Defendants were only
directly implicated in one -- the murder of La Rompe boss Christian
Toledo-Sánchez, a.k.a. Pequeque. The testimony reflected that in
August 2010, La ONU put a hit out on Pequeque. A meeting (which
the Defendants participated in) was held to hash out the details
of the murder with the for-hire hitman, whose grandmother was
Pequeque's neighbor. During the attack on Pequeque (who was, in
fact, killed), the hitman was injured, and the Defendants were
part of the extraction team that went in to rescue him.
A. RICO Conspiracy (Count One)
Given that evidentiary backdrop, we first address the
sufficiency of the evidence as to the Defendants' RICO conspiracy
conviction under 18 U.S.C. § 1962(d).
The Racketeer Influenced and Corrupt Organizations Act,
or "RICO," makes it "unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise's affairs through a pattern of racketeering activity or
collection of unlawful debt." 18 U.S.C. § 1962(c). Section
1962(d) also prohibits any person from conspiring to violate
§ 1962(c). "The major difference between a violation of § 1962(c)
itself and a violation of § 1962(d) based on § 1962(c) is the
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additional required element that the defendant knowingly joined a
conspiracy to violate § 1962(c)." United States v. Shifman, 124
F.3d 31, 35 (1st Cir. 1997) (citation and alterations omitted).
Thus, "[f]or a defendant to be found guilty of conspiring
to violate RICO, the government must prove (1) the existence of an
enterprise affecting interstate [or foreign] commerce, (2) that
the defendant knowingly joined the conspiracy to participate in
the conduct of the affairs of the enterprise, (3) that the
defendant participated in the conduct of the affairs of the
enterprise, and (4) that the defendant did so through a pattern of
racketeering activity by agreeing to commit, or in fact committing,
two or more predicate offenses." Id. (internal quotation marks
and alteration omitted).
Here, the Defendants argue that the evidence was not
sufficient for elements one, three, and four.11 For the reasons
discussed below, we find no merit to this claim.
11 It's not clear from the Defendants' briefing which RICO
elements they actually grieve, but we interpret the substance of
their arguments to concern elements one, three, and four. To the
extent the Defendants did intend to dispute the second element
(knowledge), "[a]ll that is necessary to prove this element of the
RICO conspiracy is to prove that the defendant agreed with one or
more co-conspirators to participate in the conspiracy." United
States v. Shifman, 124 F.3d 31, 38 (1st Cir. 1997) (internal
quotation marks and alterations omitted). Our overall discussion
of the RICO count makes abundantly clear why this argument would
have failed in any event.
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Enterprise Affecting Foreign Commerce
To start off, the Defendants' argument that the
government presented insufficient evidence that La ONU was a RICO
enterprise affecting interstate or foreign commerce carries no
water. RICO defines an enterprise as "any individual, partnership,
corporation, association, or other legal entity, and any union or
group of individuals associated in fact although not a legal
entity." 18 U.S.C. § 1961(4). Thus, an enterprise "need only be
a group of persons associated together for a common purpose of
engaging in a criminal course of conduct," and "need not be a
legitimate business or a form of organization sanctioned by state
law." United States v. Nascimento, 491 F.3d 25, 32 (1st Cir. 2007)
(internal quotation marks omitted).
Still, even though such an "association in fact"
suffices to satisfy the "enterprise" requirement, see 18 U.S.C.
§ 1961(4), the law is clear that "the government nonetheless must
prove that the enterprise existed in some coherent and cohesive
form." Nascimento, 491 F.3d at 32. "It follows that the
enterprise must have been an 'ongoing organization' operating as
a 'continuous unit.'" Id. (citation omitted). Put simply, a RICO
enterprise "possesses some goal or purpose more pervasive and more
enduring than the instant gratification that can accrue from the
successful completion of each particular criminal act." Id.
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Here, the government presented more than sufficient
evidence that La ONU operated as an enterprise. Even if the
Defendants are correct that La ONU started off as a truce between
the different housing-project gangs, those groups concertedly
combined their efforts for a specific, ongoing purpose -- in the
beginning, to sell drugs, and later, to also stomp out the
competition (specifically, La Rompe). This super-gang, if you
will, although a merging of smaller gangs that still operated their
existing drug points, became "ongoing and identifiable" by its
name; the organization even had a special hand gesture (i.e., gang
sign). See United States v. Patrick, 248 F.3d 11, 19 (1st Cir.
2001) (finding that an enterprise existed where the "gang was
ongoing and identifiable" by name and gang sign). La ONU also had
rules and structure. Truant members and enemies were killed, but
not before leaders first signed off on the killings. Before
committing acts of violence on behalf of the organization, members
had to get permission from La ONU leaders, who hosted meetings to
discuss shootouts before they were carried out. See id. (taking
into account that the enterprise "had 'sessions' where important
decisions were made, including decisions about taking action
against rival drug dealers").
Therefore, while the Defendants urge that the La ONU
organization did not have all the traditional indicia of a typical
street gang (e.g., use of colors, initiation rites, and a formal
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hierarchy), as the Supreme Court has pointed out, RICO's
"enumeration of included enterprises is obviously broad,
encompassing 'any . . . group of individuals associated in fact.'"
Boyle v. United States, 556 U.S. 938, 944 (2009) (quoting 18 U.S.C.
§ 1961(4)). "The term 'any' ensures that the definition has a
wide reach, and the very concept of an association in fact is
expansive." Id. (citation omitted). As we fleshed out above, La
ONU "exhibited group cohesion over time; its membership pooled and
shared resources; the individuals involved had a sense of belonging
and self-identified as [La ONU] members; and the group had a wellhoned set of goals." Nascimento, 491 F.3d at 33. We deem that
more than enough for a RICO enterprise. See id.
Further, we also easily find that La ONU engaged in or
conducted activities that affected foreign commerce.12 See 18
U.S.C. § 1962(c). We have said before that an enterprise's effect
on commerce need only be de minimis, given that the commerce
requirement is only jurisdictional. United States v. Marino, 277
F.3d 11, 35 (1st Cir. 2002). Gutierrez-Santana testified that
during his time as a La ONU member from about 2009 until his arrest
in 2011, he imported kilos of heroin from the Dominican Republic
to provide to La ONU drug points (and in particular to Ramírez-
12 The Defendants argued this point in their briefing, but
this was one of many arguments the government ignored. Even
without help from the government, though, we conclude that the
commerce element was easily satisfied.
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Rivera). This activity is sufficient to satisfy RICO's foreign
commerce requirement.
Participation
RICO also requires the government to prove that the
Defendants participated in the conduct of the enterprise's
affairs. According to the Supreme Court, that means "participation
in the operation or management of the criminal enterprise."
Shifman, 124 F.3d at 35-36 (quoting Reves v. Ernst & Young, 507
U.S. 170, 184-85 (1993)). It suffices for this element that a
defendant be "plainly integral to carrying out the enterprise's
activities." Id. at 36 (internal quotation marks omitted).
Despite the Defendants' attempts to dilute the rather
damning evidence of their active leadership roles in La ONU, we
find that this element was also clearly satisfied. As we discussed
above, the testimony reflected that all three Defendants owned
drug points in La ONU-controlled projects. Of course, drug-point
ownership was a vital component to the La ONU conspiracy, given
that the whole point of the enterprise was to maintain control of
as many drug points as possible to earn more money. On these facts
alone, we conclude the jury had abundant reason to find that the
Defendants were integral parts of the enterprise's activities.
Pattern of Racketeering
Finally, the Defendants contend that there was
insufficient evidence that they participated in the conspiracy by
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agreeing to commit (or actually committing) a pattern of
racketeering activity. Not so.
To satisfy the "pattern" element for a RICO conspiracy,
the statute requires that "a defendant agreed with one or more
others that two predicate offenses be committed." Shifman, 124
F.3d at 35 (internal citation and alteration omitted). RICO
specifically enumerates what counts as a "predicate offense," and
includes (among many other crimes) murder and drug dealing. See
18 U.S.C. § 1961(1). "Aiding and abetting one of the activities
listed in § 1961(1) as racketeering activities makes one punishable
as a principal and amounts to engaging in that racketeering
activity." Shifman, 124 F.3d at 36 (citing 18 U.S.C. § 2).
RICO also requires that the defendant commit the two
racketeering acts within 10 years of one another. 18 U.S.C. §
1961(5). Additionally, the Supreme Court has said that the "acts
must be related and 'amount to or pose a threat of continued
criminal activity.'" Shifman, 124 F.3d at 36 (quoting H.J. Inc.
v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989)).
We conclude that the evidence was sufficient for the
jury to find that each of the Defendants participated in La ONU by
agreeing to engage in a pattern of racketeering. First, despite
the Defendants' representation to the contrary, there was witness
testimony that all the Defendants were part of the 2010 planning
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meeting for Pequeque's murder.13 The jury heard testimony that
during the planning meeting, which Cruz-Ramos and Laureano-Salgado
attended and Ramírez-Rivera participated by speakerphone, the
leaders decided that Pequeque would be killed by a particular
hitman with $10,000 of La ONU funds, as well as a La ONU-provided
pistol and car. The jury could easily infer, given the body of
testimony they heard, that the reason for Pequeque's murder was to
enforce La ONU's ongoing mandate that La Rompe members be executed,
so that La ONU could expand its territory.14
Second, as we noted above, the record reflected evidence
that each Defendant, as drug point owners, engaged in drug
trafficking for La ONU-controlled drug points between 2007 and
2011. See 18 U.S.C. § 1961(1) (listing "dealing in a controlled
substance" as a RICO predicate). The Defendants do not seriously
13 The Defendants do not (nor could they successfully) argue
that planning a murder is not a RICO predicate. See 18 U.S.C.
§ 1961(1).
14 The Defendants argue that the witnesses' testimony about
the Defendants' attendance at the meeting was inconsistent, and at
best questionable, as none of the witnesses were present during
Pequeque's shooting. But Figueroa-Cancel unequivocally testified
that he was at the planning meeting and relayed the details of the
planned hit. The jury also heard that Pequeque was, in fact,
killed by the hitman after the meeting, and that the Defendants
were part of the team to extract the injured hitman from the scene.
Even assuming the other witnesses' testimony was inconsistent with
this account (or even if Figueroa-Cancel's other testimony
conflicted with this account), "[w]hen there are two conflicting
versions of a single event, it is for the jury to decide which
version, if either, should be given credence." United States v.
Williams, 717 F.3d 35, 40 n.2 (1st Cir. 2013).
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dispute this point either, arguing only that their drug-selling at
the individual drug points "did not contribute to La ONU's
objectives" because the drugs were sold only for the benefit of
the individual gangs at each housing project.
We have already rejected the Defendants' notion that
selling at the individual housing projects did not contribute to
La ONU's mission to take over the drug market, but even if the
Defendants' sales did not directly financially benefit La ONU,
their claim would still fail. It suffices that "the defendant was
able to commit the predicate acts by means of, by consequence of,
by reason of, by the agency of, or by the instrumentality of his
association with the enterprise." Marino, 277 F.3d at 27. "[T]he
defendant need not have channeled the proceeds of the racketeering
activity into the enterprise," and "[i]t is unnecessary for the
pattern of racketeering to have benefitted the enterprise in any
way." Id. at 28. Particularly given the ensuing "war" with La
Rompe over the drug points, the jury could have reasonably inferred
that the Defendants' drug-trafficking success (i.e., their ability
to survive) was attributable to their alliance with, allegiance
to, and high-ranking status in La ONU.
All in all, the RICO conviction stands.
B. VICAR (Count 29)
In a similar vein, the Defendants unconvincingly argue
that the jury heard insufficient evidence to sustain their
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conviction for Violent Crime in Aid of Racketeering Activity
("VICAR") under 18 U.S.C. § 1959(a).
VICAR prohibits murder (or conspiracy to commit murder)
"for the purpose of gaining entrance to or maintaining or
increasing position in an enterprise engaged in racketeering
activity."15 18 U.S.C. § 1959(a). The predicate offense for the
Defendants' VICAR conviction was Pequeque's murder (which the
indictment charged as a violation of Puerto Rico law), and the
Defendants once again argue that there was insufficient evidence
that any of them were involved in that murder. But for the reasons
discussed earlier we reject that argument, as the jury could have
reasonably inferred that the Defendants themselves planned
15 VICAR, 18 U.S.C. § 1959(a), provides, in relevant
part:
Whoever, as consideration for the receipt of,
or as consideration for a promise or agreement
to pay, anything of pecuniary value from an
enterprise engaged in racketeering activity,
or for the purpose of gaining entrance to or
maintaining or increasing position in an
enterprise engaged in racketeering activity,
murders, kidnaps, maims, assaults with a
dangerous weapon, commits assault resulting in
serious bodily injury upon, or threatens to
commit a crime of violence against any
individual in violation of the laws of any
State or the United States, or attempts or
conspires so to do, shall be punished—
(1)for murder, by death or life imprisonment,
or a fine under this title, or both.
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Pequeque's murder. And that is sufficient for a murder conviction
under Puerto Rico law. See Puerto Rico Penal Code Articles 105
and 106 (respectively, P.R. Laws Ann. tit. 33, §§ 4733, 4734
(2004).16
As to the second VICAR element, the Defendants have
provided no developed reasoning as to why the trial evidence would
not suffice to show at least part of their motive for the murder
was to "advance or maintain their position within" La ONU. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting
that undeveloped arguments are waived).17
We need not tarry on this point. The VICAR conviction
stands.
16 Article 105 defines murder as "kill[ing] another human
being with intent." P.R. Laws Ann. tit. 33, § 4733. First-degree
murder, Article 106, is (in relevant part) "[a]ny murder committed
. . . with premeditation." P.R. Laws Ann. tit. 33, § 4734. "Any
other intentional killing of a human being constitutes second
degree murder." Id.
Liable as a principal under Puerto Rico law is anyone who
"participates directly in the commission of a crime," "forces,
provokes, abets or induces another person to commit a crime," or
"cooperates before, simultaneously or after the commission of a
crime, and without whose participation the crime could not have
been perpetrated." P.R. Laws Ann. tit. 33, §§ 4671(a), (b), (d).
17 Perhaps this omission was intentional, as it would be
meritless on this record. See United States v. Tse, 135 F.3d 200,
206 (1st Cir. 1998) (holding that the government need not prove
that advancement in the enterprise was a defendant's sole motive
for committing the VICAR crime and that the government need only
show that defendant committed the acts because "he knew it was
expected of him by reason of his membership or that he committed
the acts in furtherance of that membership" (internal quotation
marks and alterations omitted)).
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C. Conspiracy to Possess Firearms (Count 30)
For the Defendants' last sufficiency challenge, they
urge that they were improperly convicted of conspiring to possess
firearms because none of the guns that were introduced or mentioned
at trial actually belonged to La ONU.
18 U.S.C. § 924(o) provides that "[a] person who
conspires to commit an offense under [18 U.S.C. § 924(c)] shall be
imprisoned for not more than 20 years, fined under this title, or
both; and if the firearm is a machinegun or destructive device, or
is equipped with a firearm silencer or muffler, shall be imprisoned
for any term of years or life." And 18 U.S.C. § 924(c)(1)(A)
provides a minimum imprisonment term for
any person who, during and in relation to any
crime of violence or drug trafficking crime
(including a crime of violence or drug
trafficking crime that provides for an
enhanced punishment if committed by the use of
a deadly or dangerous weapon or device) for
which the person may be prosecuted in a court
of the United States, uses or carries a
firearm, or . . . in furtherance of any such
crime, possesses a firearm.
The Defendants argue that there was no evidence
presented that they used or carried firearms "in furtherance" of
a crime of violence or drug-trafficking crime, and that "mere
presence of a firearm in an area where a criminal act occurs" does
not suffice. See United States v. Bobadilla-Pagán, 747 F.3d 26,
35 (1st Cir. 2014). Again, the Defendants miss the mark. "For
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purposes of 18 U.S.C. § 924(c)(1)(A), we have understood 'in
furtherance of' to demand [a] showing [of] a sufficient nexus
between the firearm and the drug crime [or crime of violence] such
that the firearm advances or promotes the drug crime [or crime of
violence]." United States v. Gurka, 605 F.3d 40, 44 (1st Cir.
2010) (internal quotation marks omitted). Here, even if the guns
put into evidence during the trial did not belong to the
Defendants, the jury heard evidence that all the Defendants carried
firearms and/or supplied them to the organization from 2008 to
2011. And the jury could easily conclude that given La ONU's
mission to protect its drug territory, and its tendency to do so
through gun violence, the firearms that drug point owners carried
or provided to other members either advanced or promoted their
drug-trafficking businesses. Thus, that no weapons were ever
seized directly from Laureano-Salgado or Ramírez-Rivera is of no
consequence when it comes to our sufficiency analysis --
"[t]estimony from even just one witness can support a conviction."
Negrón-Sostre, 790 F.3d at 307 (internal quotation marks omitted).
In sum, we find that the evidence was abundantly
sufficient to convict the Defendants of the contested crimes.
II. Reversible Trial Errors
Because we find that the evidence presented to the jury
was sufficient to support the Defendants' convictions, we now turn
to the Defendants' allegations regarding supposed errors that
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might warrant a new trial. Specifically, Cruz-Ramos argues that
the district court erred in denying the motion to suppress the
August 2010 search of his home that led to his arrest, the seizure
of numerous guns and large amounts of drugs, and the arrest of
Bernard and several other people in the house. The Defendants
also collectively argue that the district court erred during jury
selection and in making certain evidentiary rulings at trial.
A. Cruz-Ramos's Motion to Suppress
To start us off, Cruz-Ramos claims that the district
court erroneously denied his motion to suppress the fruits of the
2010 police search of his home (and the car garaged there), as the
police had no probable cause to enter his home without a warrant,
let alone to search. He also argues that the statements he made
to police after the search (and his subsequent arrest) should also
be suppressed as fruits of the poisonous search.
Because we agree with Cruz-Ramos that probable cause was
lacking and therefore the search of the home and car violated the
Fourth Amendment, we find that the evidence seized during the
search should have been suppressed. We also conclude that
including the erroneously admitted evidence at trial was not
harmless, given the lack of other compelling evidence linking CruzRamos to drug crimes, and thus, a new trial for Cruz-Ramos is
warranted.
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District Court Decision
Based on the testimony from three law enforcement agents
(the only witnesses to testify at the suppression hearing), the
district court made the following factual findings. See United
States v. Beras, 183 F.3d 22, 24 (1st Cir. 1999) ("In reviewing
the court's denial of defendant's motion to suppress, we recite
the facts as found by the district court to the extent they are
not clearly erroneous.").18
On August 28, 2010, Puerto Rico Police Department
Officer Carlos A. Jimenez-Rolon showed up at Las Dalias housing
project around 2:30 a.m. to conduct a "preventative round" (Las
Dalias had one of the highest crime rates of the island's housing
projects). During the round, Officer Jimenez-Rolon saw a man
walking. The Officer got out of his (marked) car and told the man
to stop.
Instead of complying, the man took off running. Officer
Jimenez-Rolon gave chase. The man reached into his pocket and
threw an unidentified object toward the second story of the nearby
building.
18 While Cruz-Ramos additionally argues that some of the
district court's factual findings were clearly erroneous, see
United States v. Brown, 621 F.3d 48, 55 (1st Cir. 2010), we need
not address that argument, as we conclude that even adopting the
court's findings as-is, there was no probable cause to search.
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Office Jimenez-Rolon realized he wouldn't be able to
catch the fleer, so instead went to investigate what the man had
purged from his pocket. Officer Jimenez-Rolon went up to the
second floor of the nearby building and discovered a different man
lying down (presumably in the hallway), with a firearm at his side.
Officer Jimenez-Rolon arrested this man and took him to the police
station.19
At the police station, Officer Jimenez-Rolon began to
interview the arrested man. The arrestee told Officer JimenezRolon that if the police could provide security to his family, he
would tell them where to find Bernard, one of Puerto Rico's mostwanted fugitives for allegedly shooting down the municipal
helicopter. Officer Jimenez-Rolon brought his supervisor,
Lieutenant Luis David Flores-Ortiz, into the loop, and Lieutenant
Flores-Ortiz agreed to the deal and continued with the interview.
Lieutenant Flores-Ortiz had not met or spoken to the man prior to
this encounter, and as far as the Lieutenant knew, the man had
never previously served as an informant to the Puerto Rico police.
The arrestee (who we'll call from now on "the Informant")
told Lieutenant Flores-Ortiz that Bernard was hiding at a house in
19 Among the other details that are difficult to gather from
the police officers' story, it is unclear why the police arrested
this man. The record does not reflect that he was charged with
any crime (i.e., unlawful possession of a firearm), or that his
tip, which we discuss shortly, was provided in exchange for
prosecutorial leniency.
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the Berwind Estates housing subdivision in Rio Piedras with at
least four other people -- Cruz-Ramos, two females, and perhaps
other unidentified males. Bernard would have on him "many weapons,
firearms, and controlled substances," the Informant warned. Four
rifles would also be hidden in a flower box on the terrace, and
sidearms (like Berettas and Glocks) and drugs would be in a hidden
compartment in a red Ford Expedition. The Informant did not
provide any further details concerning what police would find at
the home, nor a description of the house.
The Informant said Bernard wouldn't stick around for
long and would depart at sun-up through the back of the house.
The Informant further warned that Bernard would open fire at the
police as soon as he saw them. Upon leaving the Berwind Estates
home, Bernard would head for the Las Dalias housing project, the
Informant claimed, "at which point the PRPD would lose their
opportunity to arrest him" that night.
The brief interview ended sometime between 3:30 and 4:00
a.m. Despite the fact that neither the Puerto Rico police nor
Lieutenant Flores-Ortiz had any prior relationship with the
Informant, the Lieutenant deemed him reliable based on the fact
that both the Informant and Bernard "came from the Las Dalias
housing project, and thus the Informant could likely be part of
Bernard's 'close-knit' group and know Bernard's whereabouts."
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With that, shortly after the interview ended, Officer
Jimenez-Rolon drove the Informant to the house where Bernard was
supposedly located. After they reached Berwind Estates and passed
a manned security hut, the Informant pointed out a "good-sized
residence" with "lots of vegetation" behind and to the side of it.
The vegetation was relatively thick, but someone hiding in the
bushes could still be seen from certain angles. A terrace with a
flower box was also visible.
Apparently satisfied with what he had observed, Officer
Jimenez-Rolon took the Informant back to the police station, and
around 5:00 a.m., the police returned to the house to arrest
Bernard. They did not attempt to obtain either a federal or local
search warrant to enter or search the home.
After the police secured the home's perimeter (and
extended the perimeter out to the guardhouse), an "entry team"
comprising six officers "entered through the property through the
vegetation on the side of the house, crossed over the terra-cotta
floored portion of the carport driveway, and proceeded to the door
located on the side terrace." To enter the carport, the officers
"had to jump a cement wall," and to enter the terrace, they opened
a closed gate.
From the terrace, the officers saw through a window an
unidentified female sitting in the kitchen. They told her they
were police, instructed her to stay silent, and asked her to open
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the door. She complied. They asked the woman where Bernard was,
and she said he was in the bedroom.
While the police made their way to the bedroom, other
men (including Cruz-Ramos) appeared out of adjacent rooms. The
officers detained them. The police continued into the bedroom,
where they found Bernard in a bed "either asleep or just halfawake." Close by Bernard was a pistol. They arrested him. All
of the detained people were also arrested for harboring a fugitive.
With everyone under arrest and the house secure, Officer
Jimenez-Rolon searched the flower box on the terrace, where he
found hidden under the dirt four rifles. Then he went in the
house, walked through the foyer and through a glass door that
opened into the carport, where a red Ford Expedition was parked.
In the car, Officer Jimenez-Rolon found a hidden compartment with
weapons, ammo, and drugs. Officer Jimenez-Rolon seized all of the
drugs and guns he found.
Cruz-Ramos, along with the other arrestees, was taken to
the police department following his arrest. Sometime between 10:30
a.m. and noon, Cruz-Ramos was placed in a "small room" with three
federal agents for an interview, which was not recorded. CruzRamos was verbally apprised of his constitutional rights
(particularly, his right to remain silent and his right to an
attorney), and while he acknowledged that he understood them, he
refused to sign any paperwork waiving his rights.
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The police proceeded to interview Cruz-Ramos anyway, and
he told the agents that he lived in the house where he and Bernard
were arrested, but that he was originally from the Las Gladiolas
housing project. He admitted to being "affiliated with a group of
housing projects that were partners and supported each other."
Cruz-Ramos also admitted to carrying a gun for personal defense
and to having numerous rifles "hidden or buried somewhere." He
told the agents that he knew Bernard because they hung out together
in different bars, and Bernard was acquainted with his
stepdaughter. Cruz-Ramos said he knew Bernard was wanted by the
police and had tried to arrange for Bernard to find a lawyer and
surrender himself.
Based on all these facts, the district court concluded
that the police had probable cause to search Cruz-Ramos's home
without a warrant. Specifically, the court found that "[a]lthough
the Informant had never provided information before, and only
offered the information upon his arrest and interrogation, all of
the other facts and circumstances support the [police's]
conclusion that the Informant was indeed truthful and reliable."
Those facts were: the Informant was arrested in Las Dalias, "a
housing project that Bernard was associated with"; the Informant
provided very detailed information; the Informant agreed to travel
with Officer Jimenez-Rolon to "point[] out the precise residence,
which matched the description he had already provided"; and the
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Informant put himself in danger by providing the tip. The court
also found that exigent circumstances were present, namely,
Bernard's risk of escape and the threat he posed to public safety.
Additionally, the court concluded that the warrantless
search of the Ford Expedition was legal, as the Informant had
provided a basis for probable cause that guns and drugs were hidden
in it. While the court found no exigency, it nonetheless denied
suppression of the car-search based on the "auto exception" to the
warrant requirement. See United States v. Polanco, 634 F.3d 39,
42 (1st Cir. 2011) (noting that under the "auto exception," if
"there is probable cause to believe a vehicle contains evidence of
criminal activity, agents can search without a warrant any area of
the vehicle in which the evidence may be found" (internal quotation
marks omitted)). Even if the automobile exception didn't apply
though, the police made a "good faith error" because based on their
"legal presence on [the] property, the probable cause known to
them at the time, and the automobile exception, it was entirely
reasonable for them to believe that the warrantless search of the
Expedition was justified," the district court concluded. See
Illinois v. Krull, 480 U.S. 340, 348-49 (1987) (recognizing that
evidence resulting from a Fourth Amendment violation should only
be suppressed "if it can be said that the law enforcement officer
had knowledge, or may properly be charged with knowledge, that the
search was unconstitutional under the Fourth Amendment" (internal
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quotation marks omitted)). The court did, however, exclude the
search of the flower box, on the grounds that even though the
police had probable cause, there were no exigent circumstances to
justify searching there because Bernard had been arrested and the
house was secure, rendering safety a non-issue. The court likewise
excluded the fruits of the flower-box search (four rifles found
under the dirt) because they dropped from a poisonous tree (the
illegal search of the flower box), and no "good faith" exception
applied.20 See Wong Sun v. United States, 371 U.S. 471, 484 (1963)
("[E]vidence seized during an unlawful search [can]not constitute
proof against the victim of the search.").
As for Cruz-Ramos's statement to the police, the court
found that it could not be suppressed as fruit of the poisonous
search because the search of the house was not poisonous (i.e.,
illegal). The court likewise rejected Cruz-Ramos's argument that
his statement was not given voluntarily, which he said violated
the Fifth Amendment.
No Probable Cause
As we hinted at above, the focus of our analysis here is
on whether the police had probable cause to search Cruz-Ramos's
home. Cruz-Ramos argues that since the sole basis of probable
20 The government does not dispute the suppression of the
flower-box evidence.
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cause was the uncorroborated tip from an unknown informant, the
police needed more than just his word to search without a warrant.
"[W]e review de novo the district court's conclusions of
law, including its application of the law to the facts, its
probable cause . . . determination[], and the district court's
ultimate legal decision to grant or deny the motion to suppress."
United States v. Camacho, 661 F.3d 718, 724 (1st Cir. 2011). In
assessing whether there was probable cause for a search, "our task,
like that of the . . . district court, is simply to make a
practical, common-sense decision whether, given all the
circumstances, there is a fair probability that contraband or
evidence of a crime will be found in a particular place." United
States v. McLellan, No. 14-1561, 2015 WL 4071914, at *4 (1st Cir.
July 6, 2015) (internal quotation marks and alterations omitted).
We first provide a little background on the relevant law
before diving into our analysis. The Fourth Amendment instructs
that "no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized." U.S. Const.
amend. IV. Based on this constitutional tenet, the law clearly
establishes that even when police have a warrant to arrest someone,
a search warrant is still "ordinarily required to enter the home
of a third person to arrest an individual who is believed to be
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inside the home." Fletcher v. Town of Clinton, 196 F.3d 41, 49
(1st Cir. 1999).
"Nevertheless, a warrantless entry into a person's
dwelling may be permitted" to effect an arrest, United States v.
Samboy, 433 F.3d 154, 158 (1st Cir. 2005), so long as two
conditions are met: one, the police had probable cause to enter
the home, and two, "exigent circumstances" existed, like a
fugitive's threat to public safety. Hegarty v. Somerset Cty., 53
F.3d 1367, 1373-74 (1st Cir. 1995). And probable cause only
"exists when the totality of the circumstances suggests that there
is a fair probability that contraband or evidence of a crime will
be found in a particular place." United States v. Gifford, 727
F.3d 92, 98 (1st Cir. 2013) (internal quotation marks omitted).
As was the case here, police often rely on tips from
confidential informants to underlie probable cause. But the
principle is long-standing that "[e]ven where a search warrant is
obtained, the police must show a basis for the search beyond the
mere fact of an assertion by an informer." Recznik v. City of
Lorain, 393 U.S. 166, 169 (1968). It follows then that "[a]t least
as much is required to support a search without a warrant." Id.
at 169-70. Therefore, when, as here, "the primary basis for a
probable cause determination is information provided by a
confidential informant," law enforcement must "provide some
information from which a [court] can credit the informant's
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credibility." Gifford, 727 F.3d at 99. In other words, a
"probable cause finding may be based on an informant's tip so long
as the probability of a lying or inaccurate informer has been
sufficiently reduced." Id. (internal quotation marks omitted).
To help assess an informant's reliability, we look to a
"nonexhaustive" list of factors:
(1) . . . the probable veracity and basis of
knowledge of persons supplying hearsay
information; (2) whether an informant's
statements reflect first-hand knowledge; (3)
whether some or all of the informant's factual
statements were corroborated wherever
reasonable and practicable (e.g., through
police surveillance); and (4) whether a law
enforcement [officer] assessed, from his
professional standpoint, experience, and
expertise, the probable significance of the
informant's provided information.
United States v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir. 2011)
(citations, internal quotations marks, and alterations omitted).
Applying these factors to the instant case, we find that
there is simply no indication on this record that the police
explored the Informant's basis of knowledge for the information he
relayed, or that the police bothered to corroborate any of the
information that actually suggested that criminal activity was
afoot at Cruz-Ramos's home. Even if we were to agree with the
district court that the information the Informant provided was
detailed, we find that because the police did not sufficiently
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test the reliability of the detailed information, the denial of
the motion to suppress cannot stand.
Specifically, nothing in the district court's factual
findings "indicates the informant's basis of knowledge," such as
whether the informant had firsthand knowledge of Bernard's
whereabouts (i.e., he had seen Bernard at the house), or just
"heard about it as hearsay" or "through rumor." See Gifford, 727
F.3d at 100; cf. Illinois v. Gates, 462 U.S. 213, 234 (1983) ("[An
informant's] explicit and detailed description of alleged
wrongdoing, along with a statement that the event was observed
firsthand, entitles his tip to greater weight than might otherwise
be the case."). Notably, the only basis Lieutenant Flores-Ortiz
articulated for trusting the Informant was that because he "came
from" the same housing project as Bernard, "[h]e could form a part
of [Bernard's] close-knit group." That inference could implicate
every resident in the complex, yet Lieutenant Flores-Ortiz
apparently never bothered to ask the Informant whether he actually
was part of Bernard's crew. The Informant could have been relaying
a rumor he overheard on the street, or even fabricating the
information. It is also undisputed that the police here had no
"past history with the informant to establish that informant's
credibility." See Gifford, 727 at 100; cf. United States v. Dixon,
787 F.3d 55, 59 (1st Cir. 2015) (that informant had given police
"fruitful tips in the past" and police had met with the informant
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before "in person on several occasions" supported the informant's
reliability).
Furthermore, while the district court credited the
police for corroborating the Informant's tips, our review shows
that the only information the police actually corroborated before
they entered the premises was the Informant's (very general)
outside description of the house. Indeed, all the police did here
before entering the premises was drive by the home and confirm the
readily apparent details the Informant described -- that the home
was in the gated community the Informant identified and had a
flower box.
But this kind of information, indeed, the kind that is
immediately visible to anyone who passes the house, is not --
without more -- useful information when it comes to making a
probable cause determination. True, "corroboration of even
innocent activity reported in [a] tip may support a finding of
probable cause," at least when "[c]orroboration of apparently
innocent activity can establish the reliability of the informant
because the activity might come to appear suspicious in light of
the initial tip." Tiem Trinh, 665 F.3d at 12 (internal quotation
marks omitted). But the information must be at least marginally
useful in establishing that criminal activity is afoot. See
Alabama v. White, 496 U.S. 325, 332 (1990) (noting that it is "also
important that . . . 'the anonymous tip contained a range of
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details relating not just to easily obtained facts and conditions
existing at the time of the tip, but to future actions of third
parties ordinarily not easily predicted.'" (quoting Gates, 462
U.S. at 245)). Here, the police did not corroborate any of the
information that might actually have suggested suspicious
activity. For instance, one could find it curious to see multiple
adults (at least one the Informant even identified by name) coming
in and out of a single-family home. Or perhaps if the police had
staked out the house, they might have seen someone protectively
guarding or manipulating the flower box in an unusual way. Cf.
id. at 11 (police conducted surveillance to corroborate much of
the informant's information, including the fact that the informant
had, multiple times, been in and out of the house where the
purported drug operation was going down). In sum, we find that
the police did not do enough to confirm the unknown Informant's
story such that probable cause could issue.21
21 The fourth Tiem Trinh factor, whether the police officer
assessed from his professional standpoint the "probable
significance" of the tip, 665 F.3d at 10, is arguably met here
because Lieutenant Flores-Ortiz did surmise that the Informant was
reliable. However, we give his assessment little weight because
the police knew nothing about the Informant other than his
affiliation with Las Dalias and still did not inquire into the
Informant's source of knowledge. Thus, the officer had no real
basis for making his assessment.
The district court, relying on an out-of-circuit case, also
emphasized that the Informant put himself in danger by providing
the tip. See United States v. One 56-Foot Yacht Named Tahuna, 702
F.2d 1276, 1287 (9th Cir. 1983) (considering as a factor in the
reliability analysis that "[t]he information was given to the
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Our outcome should be no surprise, given our precedent.
In addition to the test we laid out in Tiem Trinh, we have
emphasized on multiple occasions that an informant's reliability
must be vetted. For instance, in United States v. Jordan, we
carefully weighed the police's efforts to corroborate a hearsay
tip, and specifically noted some of the "various means" by which
an informant could be corroborated, such as "direct surveillance
or circumstantial evidence," "vouchsaf[ing]" by a "highly
experienced law enforcement officer," "independent corroboration"
(i.e., conducting controlled drug buys), and most particularly,
the informant's history of providing "reliable information and
investigative assistance to the police in the past." 999 F.2d 11,
13-14 (1st Cir. 1993). We found that on balance, all of these
efforts on the part of the police sufficed to corroborate the
informant's tip. In Dixon, the police officer took similar
measure, meeting with the informant face-to-face "on several
occasions," "independently corroborat[ing] facts," including not
government in circumstances subjecting the informants to possible
personal or penal risk" (alterations omitted)). But even if we
took into account the risk of retaliation the Informant faced, the
record does not reflect that La ONU knew or would have been able
to figure out that the (confidential) Informant was the one talking
to police. If the Informant had heard the information through a
rumor or eavesdropping, there would be no reason -- at least not
one we can discern from this record -- to think the gang would
suspect him. And we reiterate that the officers here did not probe
the Informant's basis of knowledge (e.g., whether the Informant
knew the information because he was in the gang and thus would be
in danger because he cooperated).
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only "innocent facts" like the defendant's phone number and cartype, but also by conducting controlled drug buys that "were
carefully monitored and regulated to minimize the chance that the
[informant] could have falsely implicated" the defendant. 787
F.3d at 59. Further, the informant in that case also had given
"fruitful tips in the past." Id.
In contrast, anyone driving by Cruz-Ramos's home could
parlay the generic description the Informant gave, and confirming
only those innocuous details is not, on its own, sufficient to
corroborate a tip from an unknown confidential informant. The
Informant did not even say that the house was the only one in the
area with a flower box, meaning that the flower box's existence
did not make for a distinguishing characteristic. Given the lack
of other indicia of the Informant's reliability, the police had an
obligation to corroborate something of the tip before entering
Cruz-Ramos's home without a warrant. See Recznik, 393 U.S. at
169 (finding that police did not have probable cause to enter a
home when no "effort was made to show that either the petitioner
or the apartment was at that time connected with" criminal
activity, and the police did not "even attempt to establish that
the informers were reliable"). In sum, there was no probable cause
to search Cruz-Ramos's home.
Cruz-Ramos further asserts that the search of his car
was also illegal for lack of probable cause. As we discussed
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above, the Informant's tip was not sufficiently reliable on its
own, and we agree with Cruz-Ramos that the same reasoning extends
to the search of the Expedition. See United States v. Dickerson,
514 F.3d 60, 66 (1st Cir. 2008) (noting that police may only
conduct "a warrantless search of a car if there is probable cause
to believe" the car has "contraband or evidence of a crime"
(emphasis added)). Contrary to the district court's decision, we
conclude that the initial entry into the home was illegal, and so
the police could not form probable cause from what illicit activity
they observed once they entered the home. See Silverthorne Lumber
Co. v. United States, 251 U.S. 385, 392 (1920) ("The essence of a
provision forbidding the acquisition of evidence in a certain way
is that not merely evidence so acquired shall not be used before
the Court but that it shall not be used at all."). Thus, there
was no basis for probable cause to search the Expedition.
For the same reason, the so-called "automobile
exception" to the Fourth Amendment does nothing to save the search
of Cruz-Ramos's car (assuming the exception even applies to a car
parked within the curtilage of a defendant's home, as was the case
here). See Coolidge v. New Hampshire, 403 U.S. 443, 460-62 (1971).
Sure, "the expectation of privacy with respect to one's automobile
is significantly less than that relating to one's home," such that
"warrantless examinations of automobiles have been upheld in
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circumstances in which a search of a home . . . would not."22 South
Dakota v. Opperman, 428 U.S. 364, 367 (1976). However, police
still need "probable cause to believe that the automobile contains
contraband" before conducting a warrantless search. United States
v. Silva, 742 F.3d 1, 7 (1st Cir. 2014). As with a home-search,
in this context "[p]robable cause exists when the facts and
circumstances as to which police have reasonably trustworthy
information are sufficient to warrant a person of reasonable
caution in the belief that evidence of a crime will be found."
Id. (internal quotation marks omitted and emphasis added). As we
discussed, the police did not probe the Informant's basis for his
claims that weapons and drugs were in the car and therefore had no
reasonable basis for believing the Informant's tip, such that
probable cause could issue on the tip alone.
One final point on probable cause -- that the police
actually did end up finding guns, drugs, and, of course, Bernard
in Cruz-Ramos's home cannot enter our calculus, as "[a] search
unlawful at its inception may [not] be validated by what it turns
up." United States v. Mercedes-De La Cruz, 787 F.3d 61, 69 (1st
22 The logic behind this automobile exception is that "[o]ne
has a lesser expectation of privacy in a motor vehicle because its
function is transportation and it seldom serves as one's residence
or as the repository of personal effects." South Dakota v.
Opperman, 428 U.S. 364, 368 (1976) (internal quotation mark
omitted).
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Cir. 2015) (quoting Wong Sun, 371 U.S. at 484 (internal quotation
marks omitted)).
Based on these facts,23 we conclude that there was no
probable cause to enter Cruz-Ramos's home or car. Thus, while we
certainly understand (though we do not address whether) exigency
may have been a legitimate concern here because of Bernard's status
as a dangerous fugitive, the Constitution does not permit the
police to forego a search warrant in situations like this based on
exigency alone. Rather, as we have discussed, they also need
probable cause. See Hegarty, 53 F.3d at 1373-74.
The Seized Physical Evidence
We must next consider whether the evidence seized as a
result of the illegal search should also have been suppressed at
trial. It is well established under the "exclusionary rule" that
generally, "evidence seized during an unlawful search [can]not
constitute proof against the victim of the search." Wong Sun, 371
U.S. at 484. That is, the government "may make no use of evidence
illegally seized." Mapp v. Ohio, 367 U.S. 643, 657 (1961). It's
clear, then, that per the plain language of the exclusionary rule,
23 To the extent additional facts came out during the two-day
evidentiary hearing that the district court did not address in its
decision, the government did not point them out to us. Indeed,
the government's curiously scant brief did not provide any
developed argument as to the motion to suppress (as well as several
other issues the Defendants raised), instead choosing to simply
regurgitate large chunks of the district court's factual findings.
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the physical evidence seized during the illegal search of CruzRamos's home (including the car and flower box), should have been
suppressed. The district court said as much when it determined
that if the initial entry into Cruz-Ramos's home was illegal, "then
everything subsequently discovered by the [police] would be
subject to suppression as fruit of the poisonous tree."24
Like most rules, however, the exclusionary rule has
exceptions. We examine their applicability next.
Good-Faith Exception
"Police practices trigger the harsh sanction of
exclusion only when they are deliberate enough to yield meaningful
deterrence, and culpable enough to be worth the price paid by the
justice system." Davis v. United States, 131 S. Ct. 2419, 2428
(2011) (internal quotation marks and alterations omitted). This
"good-faith" exception to the exclusionary rule dictates, then,
that even when the seizure of evidence results from a Fourth
Amendment violation, that evidence should only be suppressed "if
it can be said that the law enforcement officer had knowledge, or
may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment." Krull, 480 U.S. at
348-49 (internal quotation marks omitted).
24 The government does not dispute this conclusion in its
briefing.
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We conclude that the good-faith exception does nothing
for the government here. For one, the government did not ask us
to invoke the exception. Cf. United States v. Wurie, 728 F.3d 1,
13 (1st Cir. 2013) (finding that a good-faith argument can be
waived, at least when the government fails to raise it below);
United States v. Archibald, 589 F.3d 289, 301 n.12 (6th Cir. 2009)
(declining to address the good-faith exception where it had not
been "raised, preserved, or argued by the government"). In fact,
the government makes no argument concerning the good-faith
exception at all, even though it "bears the heavy burden of proving
that the good-faith exception applies." Wurie, 728 F.3d at 13
(internal quotation marks omitted).
Regardless, the good-faith exception would not help the
government in this case. Lieutenant Flores-Ortiz admitted at the
evidentiary hearing that the reason the police did not try to get
a warrant was because "to get a warrant, PRPD must 'conduct several
surveillances over a period of days, a lot of photographs, videos;
and the process gets complicated. It's a process that takes a
great deal of time.'" Cruz-Ramos urges us to interpret this
testimony as an admission that the police specifically knew that
corroboration was generally necessary for probable cause, did not
want to put in the work required to get it, and decided to barge
into Cruz-Ramos's home anyway. And the government makes no
argument that we should interpret the testimony differently. Based
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on Cruz-Ramos's interpretation of the testimony (which is not
contradicted by the district court's findings, and, again,
importantly, was not disputed by the government), the officers'
disregard of the lack of probable cause was certainly deliberate,
such that excluding the evidence would have "[r]eal deterrent
value," Davis, 131 S. Ct. at 2427-28, in discouraging future
intentional and unlawful police practices. See Krull, 480 U.S. at
348-49; Herring v. United States, 555 U.S. 135, 141 (2009) (noting
that the primary purpose of the exclusionary rule is "deterring
Fourth Amendment violations in the future").25
The Supreme Court has also said, however, that "[f]or
exclusion to be appropriate, the deterrence benefits of
suppression must outweigh its heavy costs." Davis, 131 S. Ct. at
25 We note that the record in this case, as it was presented
to us, reflects that the good-faith exception does not apply
because the police acted in deliberate disregard of the Fourth
Amendment. Thus, we need not address today the full extent of the
exception's applicability to warrantless searches in general. See
Davis v. United States, 131 S. Ct. 2419, 2439 (2011) (Breyer, J.,
dissenting) (listing scenarios where the good-faith exception has
been applied and noting that the good-faith exception has not
generally been applied to warrantless searches). Nor need we
address whether the exception applies to negligent police
mistakes. See Herring v. United States, 555 U.S. 135, 146 (2009)
(stating that negligent police mistakes could also be sufficiently
culpable to bar application of the good-faith exception, at least
"[i]n a case where systemic errors were demonstrated," such that
"it might be reckless for officers to rely on an unreliable . . .
system"); see also Davis, 131 S. Ct. at 2439 (Breyer, J.,
dissenting) (noting that if courts "apply the exclusionary rule
only where a Fourth Amendment violation was deliberate, reckless,
or grossly negligent, then the good faith exception will swallow
the exclusionary rule" (internal quotation marks omitted)).
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2427. We recognize (indeed, regret) the "substantial social costs"
that might come to bear as a result of the vacation of Cruz-Ramos's
conviction and his resulting re-trial. See id. As we noted above,
the police found several guns in the car, along with an
extraordinary amount of drugs (specifically, more than 1,000 decks
of heroin, 80 baggies of cocaine, 21 containers of marijuana, 740
vials of crack, and almost 1,000 vials of crack), and it's a hard
pill to swallow that none of that evidence can be introduced at
Cruz-Ramos's trial.
But the law instructs us that "[w]hen the police exhibit
deliberate, reckless, or grossly negligent disregard for Fourth
Amendment rights, the deterrent value of exclusion is strong and
tends to outweigh the resulting costs." Id. (internal quotation
marks omitted). So is the case here, as we cannot overlook the
egregious Fourth Amendment violation that occurred. At the end of
the day, law enforcement simply cannot cut corners at the cost of
a person's constitutional privileges.
We conclude that the exclusionary rule bars the
admission of evidence obtained from the illegal search of CruzRamos's house and car.
Harmless Error
Even if the evidence was illegally obtained (and even if
the police had no good-faith reason to seize it), we will only
remand for a new trial if letting in the evidence was not harmless.
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United States v. Burgos-Montes, 786 F.3d 92, 114 (1st Cir. 2015).
While the government does not address this issue in its brief,26
we conclude that the introduction of the seized evidence in this
case was not harmless.
Since the error here "rises to the level of
constitutional," we must assess whether "we can consider the error
harmless beyond a reasonable doubt." United States v. Trenkler,
61 F.3d 45, 60 n.22 (1st Cir. 1995). We must find, then, that
beyond a reasonable doubt, it is "highly probable that the result
would have been the same" if the error had not occurred. United
States v. Leon-Delfis, 203 F.3d 103, 112 (1st Cir. 2000) (internal
quotation marks omitted). "We are not concerned here with whether
there was sufficient evidence on which the petitioner could have
been convicted without the evidence complained of." United States
v. Argentine, 814 F.2d 783, 789 (1st Cir. 1987). Instead, "[t]he
question is whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction."
Id.
26 We have the discretion to address harmless error sua sponte
in certain situations, but we remind the government that it "bears
the burden of persuasion with respect to showing that the error
was harmless." United States v. Rose, 104 F.3d 1408, 1414 (1st
Cir. 1997). We will not fret over whether it is appropriate to
exercise our discretion to address harmlessness here despite the
government's failure to raise it because the argument would have
failed anyway.
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Cruz-Ramos points out (and the government does not
dispute) that the evidence seized from Cruz-Ramos's car -- seven
guns, and more drugs than we care to recount -- was the only
physical evidence at trial that directly connected Cruz-Ramos to
La ONU activities (or to any drug trafficking). As far as we can
tell, without this physical evidence the only other evidence
connecting Cruz-Ramos to anything illegal was the testimony of the
cooperators, which they provided in exchange for leniency in their
own cases. Further, as Cruz-Ramos points out, even if we take the
witnesses at their word, their testimony did not make for a slamdunk for the government by any means -- for instance, while
Gutierrez-Santana initially said that Cruz-Ramos was at the
planning meeting for Pequeque's murder, he later (unequivocally)
testified on cross that Cruz-Ramos was not there. See United
States v. Bosch, 584 F.2d 1113, 1123 (1st Cir. 1978) (considering
that the "government's case consisted primarily of the testimony
of admitted accomplices, whose credibility was attacked" in
finding that a constitutional error was not harmless); United
States v. Ofray-Campos, 534 F.3d 1, 27-28 (1st Cir. 2008) (in
harmless beyond a reasonable doubt analysis, considering that no
physical evidence tied defendant to drug activity); Coppola v.
Powell, 878 F.2d 1562, 1571 (1st Cir. 1989) (noting that there was
"no conclusive evidence that tie[d] petitioner tightly to the
crime," and that it did not suffice that "it [was] probable that
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petitioner committed the crime"). Thus, we simply cannot say
beyond a reasonable doubt it is "highly probable" that the jury
would have reached the same verdict without the wrongly admitted
physical evidence. See Leon-Delfis, 203 F.3d at 112; cf. United
States v. Jiménez, 419 F.3d 34, 42 (1st Cir. 2005) (finding
harmless error when erroneously admitted evidence "pale[d] in
light of the other evidence introduced at trial"); United States
v. Crooker, 688 F.3d 1, 9 (1st Cir. 2012) (finding harmless error
where drug residue was illegally obtained, but the government
"presented a wealth of other evidence," including bags of drugs,
drug paraphernalia, and the defendant's confession that he used
and possessed drugs).
All in all, neither the good-faith exception to the
exclusionary rule nor the harmless-error doctrine apply here.
Therefore, Cruz-Ramos is entitled to a new trial, and the evidence
that was illegally seized from his home cannot be introduced.
Cruz-Ramos's Statement
We are left with one unresolved issue concerning the
motion to suppress. While, as we discussed above, it's clear that
the physical evidence seized during the illegal search of CruzRamos's home should have been suppressed, whether Cruz-Ramos's
statements to the police should have been too is a tad trickier
since the statement was provided after the search of the house.
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In examining this more complicated question, we
generally look at "whether, granting establishment of the primary
illegality, the evidence to which instant objection is made has
been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint."
Wong Sun, 371 U.S. at 488 (internal quotation marks omitted). The
district court did not undertake this inquiry, given its finding
that the search was legal. Further, the government does not
address this issue (along with numerous others) at all in its brief
(meaning it is likely waived). However, because this question
"depends primarily upon weighing the facts in the particular case,
. . . and is thus a matter especially suitable for resolution by
the district court in the first instance," United States v. AcostaColon, 157 F.3d 9, 21 (1st Cir. 1998) (internal quotation marks
omitted), we think it appropriate that the district court address
this issue on remand. See id.; United States v. Cordero-Rosario,
786 F.3d 64, 78 (1st Cir. 2015).
For the reasons discussed, we must reverse in-part the
district court's denial of the motion to suppress, vacate CruzRamos's conviction, and remand his case for further proceedings
consistent with this opinion. Because we find that Cruz-Ramos is
entitled to a new trial based on suppression error, we need not
address his other allegations of reversible trial or sentencing
errors.
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We move on to the grievances pressed by his cohorts.
B. Jury Issues
Having resolved Cruz-Ramos's appeal, we turn now to the
issues raised by Laureano-Salgado and Ramírez-Rivera. We start
with their qualms with jury selection.
Anonymous Empanelment
First up, the Defendants claim that the district court
erred in empaneling an anonymous jury, arguing that it violated
their Sixth Amendment right to a public trial before an impartial
jury.
We review this claim for abuse of discretion. United
States v. DeLuca, 137 F.3d 24, 31 (1st Cir. 1998). "Our review
takes into account not only the evidence available at the time the
anonymous empanelment occurred, but all relevant evidence
introduced at trial." Id.
Let's review the legal backdrop for the Defendants'
claim. "It is constitutional bedrock that '[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury.'" Sampson v. United States,
724 F.3d 150, 163 (1st Cir. 2013) (quoting U.S. Const. amend VI).
To protect this important right, certain safeguards are generally
put in place during jury selection. For instance, jurors' names
and some other identifying personal information are made available
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to the parties (and sometimes to the public). See 28 U.S.C.
§ 1863(b)(7).
However, "a district court may empanel an anonymous jury
in any case in which 'the interests of justice so require.'"
United States v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998)
(quoting 28 U.S.C. § 1863(b)(7)). Because "empanelment of an
anonymous jury should be recognized as an extraordinary protective
device, especially if it tends to suggest that the jurors may have
something to fear from the accused, thereby conceivably
encroaching upon the presumption of innocence," DeLuca, 137 F.3d
at 31, we have held that empaneling an anonymous jury "is a
permissible precaution" only when two requirements are satisfied:
"(1) there are strong grounds for concluding that it is necessary
to enable the jury to perform its factfinding function, or to
ensure juror protection; and (2) reasonable safeguards are adopted
by the trial court to minimize any risk of infringement upon the
fundamental rights of the accused." Id.
Considering both of these factors, we find that the
district court acted well within its discretion to empanel an
anonymous jury in this case. On the "strong grounds" prong, we
have considered a variety of factors in looking at whether this
standard has been satisfied. For instance, we have chewed over
the defendants' link to organized crime, "a factor which strongly
indicate[s] that clandestine outside assistance might be brought
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to bear in any effort to intimidate or punish jurors"; the
defendants' involvement in violent crime; their attempts to
witness tamper; and the potential for "mandatory lifetime
sentences upon conviction, which surely provide[s] a strong
inducement to resort to extreme measures in any effort to influence
the outcome of their trial." Id. at 32 (alterations omitted).
Ultimately, though, we assess whether the "record as a whole
affords sufficient foundation for empaneling an anonymous jury
both as a prudent safety precaution and a means of ensuring
unfettered performance of the factfinding function." Id.
Here, the indictment alleged -- and the evidence proved
-- that the Defendants were part of an organized drug-trafficking
ring that freely used violence (read: murder) to get its way.27
See Marrero-Ortiz, 160 F.3d at 776 (noting that "[t]he indictment
charged the appellant and his coconspirators with membership in a
sprawling drug ring that often resorted to violence in its pursuit
27 We note that the Defendants do not take issue with the
district court's factual findings in this regard, but only with
the manner in which the court weighed the facts and the source of
the facts (i.e., the indictment). To that end, while the
Defendants argue that the district court improperly relied on
allegations the government made in the indictment to empanel the
jury anonymously, as we noted above, in reviewing this claim we
look to all the evidence introduced at trial -- not just the facts
that were available at the time of empanelment. The Defendants
simply ignore that legal principle. Further, the judge may
consider a variety of other sources of information, including the
indictment and evidence proffered by the government. See United
States v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998).
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of profits"). Not even police were excepted, and La ONU certainly
did not look kindly on people who cooperated with the government
(remember, one of the organization's rules was to kill anyone who
cooperated with the police). Further, the government proffered to
the court that incarcerated La ONU members were able to call people
on the outside using phones they had illegally obtained in prison,
meaning, as the district court found, that "the reach of La ONU
extend[ed] outside the federal correctional facilities and
present[ed] a real risk to jurors." In addition, the Defendants
faced mandatory life sentences if convicted. These facts provided
ample fodder for the district court's reasoning that "strong
grounds" called for anonymous empanelment.
The district court also adopted reasonable safeguards to
minimize infringement on the Defendants' constitutional rights.
Rather than bring up any concern for the jurors' safety, the judge
told the jurors that they would remain anonymous to avoid media
interference. He instructed the jurors that the Defendants were
to be presumed innocent no fewer than four times during the course
of jury selection. He also informed the jurors that while he would
read portions of the indictment to give them a flavor of the case,
the indictment was not "evidence of guilt or of anything else."
See id. (finding that Judge Fusté, the same judge who empaneled
the jury in this case, "took satisfactory precautions to protect
the defendants' rights" when he "did not mention any threat to
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juror safety, but, rather, informed the jurors that they would
remain anonymous during the trial because of publicity concerns.
He then instructed the jury on the presumption of innocence, and
periodically repeated that instruction as the trial progressed.").
Finding no error in the district court's decision to
empanel an anonymous jury, we move on to the next issue.
Voir Dire
The Defendants' next claim is that the district court
mishandled voir dire, insofar as the court did not appropriately
probe into the jurors' possible biases. Specifically, the
Defendants refer to three supposed problems: (1) Juror No. 56,
who, according to the Defendants, raised her hand when the court
asked about the jury's familiarity with the helicopter shooting,
was not asked any follow-up questions; (2) after the jury was
seated, the court disclosed that one juror lived in Trujillo Alto
municipality, which was nearby the 2010 La ONU-La Rompe shootout
that led to the death of a police officer and civilian bystander;
and (3) the court did not sufficiently vet whether all the jurors
could speak and understand the English language. Essentially,
then, the Defendants raise two separate issues -- one, should the
court have asked additional questions during voir dire? And two,
should certain jurors have been excused for bias? We assess each
of these questions in turn.
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Additional Questioning
We review the first issue -- the district court's
handling of voir dire -- for abuse of discretion.28 See United
States v. Orlando-Figueroa, 229 F.3d 33, 44 (1st Cir. 2000)
("Because voir dire determinations rely largely on immediate
perceptions, federal judges have been accorded ample discretion in
determining how best to conduct the voir dire." (internal quotation
marks and alteration omitted)).
Upon assessing the record, we find that no abuse of
discretion occurred here simply because the court declined to ask
the jurors more voir dire questions to appease the Defendants.
While "[a] probing voir dire examination is [t]he best way to
ensure that jurors do not harbor biases for or against the
parties," Sampson, 724 F.3d at 163-64 (internal quotation marks
omitted), "a district court need not . . . pose every voir dire
question requested by a litigant." Orlando-Figueroa, 229 F.3d at
44 (internal quotation marks omitted). "It is more than enough if
the court covers the substance of the appropriate areas of concern
by framing its own questions in its own words." Id.
28 The parties do not address whether the Defendants
sufficiently contemporaneously objected to the grievances with
jury selection they now press on appeal. While generally we review
unpreserved objections for plain error, because the government did
not ask us for plain error review (and because the Defendants'
claims fail under either standard anyway), we will review the
Defendants' claims for abuse of discretion. See United States v.
Tapia-Escalera, 356 F.3d 181, 183 (1st Cir. 2004).
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Here, the district court asked the potential jurors
whether any of them had knowledge of the helicopter shooting. The
court followed up with each person who raised his or her hand in
response. While the judge indicated that he was taking notes as
to which jurors raised their hands, when defense counsel stated
that he thought the court had missed the fact that "Juror 54" had
raised her hand,29 in an abundance of caution, the judge asked the
jurors again whether any of them had heard of La ONU, La Rompe,
the helicopter shooting, or the Trujillo Alto bridge shooting. No
hands were raised. Asking the question again was sufficient remedy
for ensuring that the judge did not miss any hands (particularly
because this was precisely the remedy the defense asked for during
voir dire).30
29 While neither side addresses this in their briefs, we assume
that it was later clarified that the juror who raised her hand was
actually Juror 56, not Juror 54.
30 Contrary to Cruz-Ramos's counsel's representation at oral
argument, our review of the record shows that the district court
did not improperly pose the helicopter-shooting question. After
expressing reservation about asking a question about the incident,
the judge consulted with counsel to get their take on the issue.
Upon deciding to ask the question, the judge clarified with the
jurors that the Defendants were not charged with the helicopter
shooting, but because La ONU was "associated . . . with that
incident," anyone who had "read or seen anything touching about
the group of people known as La ONU or . . . La Rompe ONU" should
raise their hands. Indeed, one juror indicated that she had read
or heard about the case in the news and that the name "La ONU"
"rings a bell."
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As to the juror who lived in Trujillo Alto, the
Defendants contend that the court should have asked prior to
seating the jury where each juror resided, because people who lived
near the area of the Trujillo Alto shooting "would have been
greatly affected and scared by the . . . incident." As we noted
above, the court asked the jurors whether they had heard of the
Trujillo Alto shooting -- a much more appropriate question to ask
if the concern is that people who were aware of the shooting would
be afraid of the Defendants.
Concerning the jurors' language abilities, the court did
not abuse its discretion by declining to further inquire into the
jurors' English-language skills. When defense counsel expressed
concern that one particular juror had trouble understanding
English, the court probed further with the juror, who answered all
of his questions in English. In particular, when the judge asked
what kind of jury service that juror had done in the past, the
juror explained, "[o]ne criminal case." When the Defendants later
raised the juror's language skills again with the court (a generous
assumption, given that all the attorney actually said was, "I was
having a hard time understanding her"), the judge indicated that
he "understood her perfectly." Given the "special deference" we
afford to the trial court's conclusions that are drawn from its
face-to-face interactions with jurors during selection, we find
that the court did not abuse its discretion in so determining.
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See United States v. Sherman, 551 F.3d 45, 51 (1st Cir. 2008); see
also United States v. Lemmerer, 277 F.3d 579, 592 (1st Cir. 2002)
("Our cases make clear that the judgment of the trial judge, who
can appraise the jurors face to face, deserves great weight."
(internal quotation marks and alteration omitted)). The
Defendants also have not directed us to any other jurors for which
they had language-comprehension concerns. See Orlando-Figueroa,
229 F.3d at 45 (finding no abuse of discretion where "defendants
do not point to any evidence that any juror's ability to understand
English was deficient").
Bias
To the extent the Defendants argue (however sparsely)
that Juror 56 and the juror from Trujillo Alto should have been
dismissed because of their bias against the Defendants, we reject
that claim as well.31 As we discussed above, a defendant is
guaranteed by the Constitution an impartial jury. And to be sure,
a defendant's right to be tried by "an impartial jury is an
integral component of a fair trial" that "must be jealously
31 Neither side bothers to try to clarify this confusion for
us, but our review of the jury selection transcript shows that
Juror 56 was initially excused. Then, while the court was in the
process of selecting the jurors who would be seated, one of the
attorneys asked why Juror 56 was excused. For reasons the
transcript doesn't reflect, the juror was brought back and seated
as an alternate. According to the Defendants, however, Juror 56
ended up deliberating.
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safeguarded." Sampson, 724 F.3d at 160 (internal quotation marks
and alteration omitted). But "[o]ur usual standard of review once
the trial judge has made an appropriate inquiry is an abuse of
discretion standard, which recognizes that the district court has
wide discretion in deciding how to handle and how to respond to
allegations of juror bias and misconduct that arise during a
trial."32 United States v. Martí-Lón, 524 F.3d 295, 300 (1st Cir.
2008) (internal quotation marks and alteration omitted). As to
Juror 56, as we discussed above, the district court sufficiently
probed with the jurors whether they were familiar with the
helicopter shooting, despite the fact that the defense was not
even sure that the juror had raised her hand (and the judge's notes
did not reflect that she had). Still, the court provided a
cautionary remedy -- the very remedy the defense asked for -- when
this issue came up during voir dire, that is, to ask the jurors
the question again. No one raised a hand. "[W]e give great weight
to the judgment of the trial judge, who can appraise the jurors
face to face, as to whether the juror can be impartial," id.
(internal quotation marks omitted), and the Defendants have given
32 "Bias" means that a "reasonable judge," considering all the
facts and circumstances, would determine that "the juror lacked
the capacity and the will to decide the case based on the evidence
(and that, therefore, a valid basis for excusal for cause
existed)." Sampson v. United States, 724 F.3d 150, 165-66 (1st
Cir. 2013).
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us no reason to stray from that principle here. Likewise, as we
noted above, the Defendants have provided no explanation for why
we should assume the juror from Trujillo Alto would be biased
against them simply because she lived in Trujillo Alto (even though
she had not heard of the bridge shooting). The district court did
not abuse its discretion during voir dire.
Right-to-be-Present and Juror Misconduct
Next, the Defendants argue that the district court
committed per se reversible error in its handling of Juror 30, who
asked to be excused prior to the start of trial because of her
fear of the Defendants. They argue that the court should not have
prohibited them from being present during the juror's in camera
interview. They also say that the district court should have
polled the other jurors to ensure Juror 30 did not taint them with
her bias.
We review the right-to-be-present claim de novo. United
States v. Brown, 669 F.3d 10, 32 (1st Cir. 2012). Further, "the
exclusion of a defendant from a trial proceeding should be
considered in light of the whole record." United States v. Gagnon,
470 U.S. 522, 526-27 (1985). We review the denial of the jury
polling for abuse of discretion. See United States v. Villar, 586
F.3d 76, 82 (1st Cir. 2009) (citing United States v. Connolly, 341
F.3d 16, 33-34 (1st Cir. 2003) ("[T]he district court's response
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to an allegation of juror misconduct is generally reviewed only
for abuse of discretion.")).
We first address whether the district court erred by
excluding the Defendants from the in camera interview. A
defendant's constitutional right to be present during his trial
proceedings largely derives from the Sixth Amendment, which, as we
noted above, guarantees the defendant a "speedy and public trial,
by an impartial jury," as well as the right "to be confronted with
the witnesses against him." See Gagnon, 470 U.S. at 526. However,
the Supreme Court has "recognized that [the] right [to be present
during trial proceedings] is protected by the Due Process Clause
in some situations where the defendant is not actually confronting
witnesses or evidence against him," id., such as jury empanelment.
This due process protection exists only when "a fair and just
hearing would be thwarted by [the defendant's] absence, and to
that extent only." Id.
Thus, the high Court has articulated that a defendant
only "has a due process right to be present at a proceeding" when
"his presence has a relation, reasonably substantial, to the
fulness of his opportunity to defend against the charge." Id.
(internal quotation marks omitted). In other words, "[a] criminal
defendant has a constitutional right to be present at all stages
of the trial where his absence might frustrate the fairness of the
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proceedings." United States v. Fernández-Hernández, 652 F.3d 56,
65 (1st Cir. 2011) (internal quotation marks omitted).
Of course, jury empanelment falls into this category.
See id. (noting that "defendant must be present at 'every trial
stage, including jury impanelment,' except at stages where . . .
'[t]he proceeding involves only a conference or hearing on a
question of law'" (quoting Fed. R. Crim. Pro. 43(a)(2), (b)(3)
(citation omitted))). But contrary to the Defendants' position
that an exclusion from a court's in camera interview is a per se
constitutional violation, both the Supreme Court and this court
have held that a defendant's temporary exclusion during an in
camera questioning of a juror, where defense counsel is present,
does not automatically offend a defendant's constitutional rights.
Gagnon, 470 U.S. at 526 (noting that the "defense has no
constitutional right to be present at every interaction between a
judge and a juror" (internal quotation marks omitted)); FernándezHernández, 652 F.3d at 65-67 (finding that a defendant's absence
from a bench conference during voir dire did not "deprive him of
any constitutional right"). Here, the fairness of the proceedings
were not frustrated by the court's decision to exclude the
Defendants from the in camera conference with Juror 30. While the
Defendants argue that they could have consulted with their
attorneys on "possible questions to present to the Court so it
could ask Juror #30 on the possible contamination of other jurors,"
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as the district court noted in its decision on this issue, the
jury had not yet convened such that the juror could contaminate
the other jurors. In addition, the court asked the juror whether
she knew any of the other jurors, or had even interacted with any
of them, and she "indicated in clear and decisive terms that she
did not communicate her fears or anxieties to any other member of
the jury." The Defendants have presented us nothing that might
refute that finding. They also have provided no indication that
their interests were not sufficiently protected by their counsel's
presence during the interview.33 See id. Thus, the court did not
err in excluding the Defendants from the in camera conference.34
33 While the court invited all of defense counsel to be present
at the interview, one attorney (Cruz-Ramos's) did not show because
of a scheduling conflict. This fact does not change our holding.
The attorney's position on this issue (as submitted in writing)
did not differ from his co-counsel's, and the attorney did not
submit any additional questions for the court to ask the juror
during the interview. Further, the Defendants have not argued
that the attorney's inability to be at the interview warrants
reversal -- only that their own does.
The Defendants also fail to address what they "could have
done . . . had they been at the conference," or how they would
"have gained anything by attending." United States v. FernándezHernández, 652 F.3d 56, 66 (1st Cir. 2011) (internal quotation
marks omitted). As we discuss below, the Defendants were not
entitled to an individualized questioning of each juror. And given
that the district court ended up dismissing Juror 30, the
Defendants do not tell us what other relief they would have wanted.
34 The Defendants also argue that allowing the juror's husband
to be present during the interview was also reversible error
because it is possible that he "might have a chilling effect" on
the juror's responses. We are troubled by a practice of allowing
a relative of the juror to attend an in camera conference when
other members of the public, and the Defendants themselves, were
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We also reject the Defendants' claim that the court
should have individually questioned each juror to determine
whether Juror 30's bias against the Defendants contaminated the
other jurors. "When a non-frivolous suggestion is made that a
jury may be biased or tainted by some incident, the district court
must undertake an adequate inquiry to determine whether the alleged
incident occurred and if so, whether it was prejudicial." United
States v. Ortiz–Arrigoitia, 996 F.2d 436, 442 (1st Cir. 1993).
But "the trial judge is vested with the discretion to fashion an
appropriate and responsible procedure to determine whether
misconduct actually occurred and whether it was prejudicial." Id.
at 443. "Substantial deference is due the trial court's exercise
of its discretion," United States v. Angiulo, 897 F.2d 1169, 1185
(1st Cir. 1990), and the "deference due the court's ultimate
finding on the issue of continued juror impartiality is enhanced
because this determination is a question of fact," United States
v. Barone, 114 F.3d 1284, 1307 (1st Cir. 1997).
Even assuming (without deciding) that the Defendants'
suggestion that Juror 30 biased the rest of the jury is nonfrivolous (a point we seriously doubt, given the fact that the
jurors had not yet sat together at trial), we find that the
excluded. But still, the Defendants have provided no law (or
otherwise developed argument) that the district court violated
their constitutional rights. See Zannino, 895 F.2d at 17.
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district court probed enough to assure itself that Juror 30 did
not taint the other jurors. As we noted above, the Defendants
have provided no suggestion even that Juror 30 communicated or
interacted with the other jurors, let alone that she had
communicated to them her anxiety about sitting on the jury. See
United States v. Maceo, 873 F.2d 1, 6 (1st Cir. 1989) (noting that
the "the defendant has the burden of proving prejudice or jury
bias"). Furthermore, the Defendants have not shown (or suggested)
that even if Juror 30 communicated her anxiety to the other jurors,
the other jurors actually became biased as a result, such that
they would have to be excused from the jury. See Sampson, 724
F.3d at 165 ("Jurors normally are subject to excusal for cause if
they are biased or if they fail to satisfy statutory
qualifications.").
Seeing no merit in the Defendants' claims regarding jury
selection, we turn to their next set of arguments.
C. Evidentiary Rulings
Next on the list, the Defendants dispute a number of the
district court's evidentiary rulings made during the trial,
arguing that they amounted to reversible error.
We review a trial court's objected-to evidentiary
rulings for abuse of discretion. United States v. RodríguezBerrios, 573 F.3d 55, 60 (1st Cir. 2009). Likewise, a trial
court's determination of whether evidence is more probative than
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prejudicial is also reviewed for abuse of discretion. See United
States v. Walker, 665 F.3d 212, 229 (1st Cir. 2011). We stay
"mindful that the trial judge has savored the full taste of the
fray, and his considerable discretion must be respected so long as
he does not stray entirely beyond the pale." United States v.
Rodríguez, 215 F.3d 110, 121 (1st Cir. 2000) (internal quotation
marks omitted).
Figueroa-Viera Impeachment
Say Defendants, the district court should have allowed
them to impeach the government's star witness (Figueroa-Viera)
with evidence that he was untruthful during his plea negotiations.
Specifically, the Defendants refer to Figueroa-Viera's testimony
that after he was arrested for his drug-trafficking activities
with La ONU, he pleaded guilty to the charges brought against him.
He signed a plea and cooperation agreement with the government in
exchange for a reduced-sentence recommendation. The cooperation
agreement required that Figueroa-Viera disclose "all information
known to [him] regarding any criminal activity." It also required
that he "agree[] to provide truthful, complete and accurate
testimony, information on a continuing basis and as required by
[the] United States."
On cross, defense counsel attempted to question
Figueroa-Viera about his plea agreement. The attorney asked:
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Q: And the fact is that during that
interview [with the government], you
didn't tell [law enforcement] all of the
murders that you have committed in Puerto
Rico?
The government objected, which the court sustained,
letting defense counsel know that he could try again if he could
lay a foundation for the question.
The defense showed the witness a copy of his plea
agreement and continued:
Q: And, in fact, in that document, you
agreed to cooperate with the government
and to provide all information known to
the defendant regarding any criminal
activity, including but not limited to
the offense described in the pending
indictment; is that right?
A: Yes.
. . .
Q: So I ask you now whether it isn't true
that you were not completely truthful in
providing the agent all of the
information regarding your past criminal
activities, including murder, or
anything about murder in Puerto Rico?
A: Yes.
Before continuing with his questions, and to head-off
another round of objections, the attorney asked for a sidebar to
proffer the foundation for his next line of questions. The
attorney explained that defense investigators had uncovered that
Figueroa-Viera had killed someone during a 2011 bakery hold-up,
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which he did not disclose to the government in violation of his
plea agreement. The government objected, arguing that this line
of questioning was forbidden by Federal Rule of Evidence 608(b),
as evidence that the witness committed a murder was a specific
instance of conduct not probative of the witness's truthfulness
(more on Rule 608(b) in a little bit).
The court, however, acknowledged that if the witness had
not adhered to the plea agreement's requirement that he provide
accurate information to the government, his failure to disclose
his criminal activity could go to his credibility. Thus, the court
ruled that the defense could "ask the witness whether he has
complied with this agreement and answered all the questions
truthfully and provided accurate answers to the government
investigators." Per Rule 608, however, the defense could not ask
questions about the bakery murder because it constituted a
"specific instance of conduct" that the defense was attempting to
use to impeach the witness. Also acknowledging that the witness's
answer to the last-asked question was unclear (the court
interpreted the witness's "yes" to mean that he was not completely
truthful to the government, while the government interpreted the
witness to mean the opposite), the court also allowed the defense
attorney to go back and clarify that particular question.35
35 Despite this confusion, the defense attorney apparently did
not think it was necessary to ask the question again, asserting
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Now Federal Rule of Evidence 608(b) says that "[e]xcept
for a criminal conviction under Rule 609, extrinsic evidence is
not admissible to prove specific instances of a witness's conduct
in order to attack or support the witness's character for
truthfulness." However, the rule says that the court may, "on
cross-examination, allow [the specific instances of conduct] to be
inquired into if they are probative of the character for
truthfulness or untruthfulness of . . . the witness." The
Defendants argue that the court should have allowed further crossexamination because "[a] witness' response to a question whether
he told the truth on a previous occasion could well be probative
of his character for truthfulness."
But the Defendants do not tell us what more they wanted
to ask Figueroa-Viera to probe his truthfulness. Whether FigueroaViera committed the bakery murder does not tell anything of his
tendency to be truthful, unless he was required to tell the
government about the murder and did not. Indeed, the district
court allowed the defense to ask about whether Figueroa-Viera
disclosed to the government all the murders he committed in Puerto
Rico, and this question goes right to the heart of whether the
that the government should "clarify that in the redirect, not me,"
since "it's the government that's alleging there's some confusion
in the record." The government did not accept the invitation.
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witness was truthful in his dealings with the government.36 Thus,
while Rule 608 leaves the court the discretion to allow the
specific instances of conduct to be probed, the Defendants do not
tell us how the specific details of the murder -- as opposed to
the details of the witness's communications with the government
-- would be probative of the witness's character for truthfulness.
See Tigges v. Cataldo, 611 F.2d 936, 938 (1st Cir. 1979) ("[S]ince
the past conduct was not, in and of itself, 'probative of
truthfulness or untruthfulness,' plaintiff could not have crossexamined [the witness] directly on the subject of the [past]
incident." (citation omitted)). Furthermore, while acknowledging
that Rule 608 makes discretionary the district court's choice to
allow cross-examination on specific instances of conduct, the
Defendants made no developed argument as to why the court was
required to do so here. See id. at 939 ("The court . . . has
considerable discretion to exclude avenues of cross-examination
36 To be sure, whether the witness intended to disclose that
he was not totally forthcoming with the government remains a
mystery, given the way the defense attorney asked the question.
But we suspect the witness meant to testify that he was truthful
-- during a carefully worded re-direct, the government asked the
witness whether the plea agreement required him to "tell the
complete truth" (to which the witness responded "yes") and "what
would have happened" if he did not "say the complete truth." The
witness responded: "Everything I said would be used against me,"
and "I couldn't cooperate anymore."
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which promise to lead far afield from the main controversy.").37
The district court did not abuse its discretion in restricting
this particular line of questioning.
Uncharged "Pep Boys" Murder
Next, the Defendants claim that the district court
should not have let in testimony about a murder that the Defendants
were not charged with. The Defendants claim that this evidence
was introduced only to rile up the jury.
Specifically, Defendants refer to testimony regarding a
murder that occurred in January 2010 behind a Pep Boys auto parts
store, when two La ONU leaders ordered the killing of a La Rompe
boss. As far as we can tell, none of the Defendants were personally
involved in that murder.
Federal Rule of Evidence 401 provides that evidence is
relevant if it has "any tendency to make the existence of any fact
37 The Defendants also claim that the prosecutor improperly
vouched for Figueroa-Viera's testimony when he asked about the
terms of Figueroa-Viera's plea agreement by suggesting that the
information the witness provided to the government had been
verified. But Defendants concede that this objection was not
preserved below, and is therefore subject to plain-error review.
See United States v. Pulgarin, 955 F.2d 1, 2 (1st Cir. 1992).
Still, the Defendants do not attempt to show how they have
satisfied the plain-error standard, particularly given that
Defendants have provided no caselaw from our circuit on the point.
See United States v. Correa-Osorio, 784 F.3d 11, 22 (1st Cir. 2015)
(describing a plain error as "an indisputable slip up on the
judge's part, given controlling precedent" (internal quotation
marks omitted)).
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that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
And we have previously held that when the scope of a RICO
conspiracy includes murder as a tool to further the enterprise, a
"murder [is] still relevant to the RICO counts as it tended to
prove the existence and nature of the RICO enterprise and
conspiracy," even when all the indicted defendants are not charged
for the particular killing. United States v. DeCologero, 530 F.3d
36, 54 (1st Cir. 2008). Here, cooperating witness Figueroa-Cancel
testified that the reason he participated in the Pep Boys murder
was because La ONU leaders instructed him to, and "if the leader
ordered us to kill anybody, we had to do it." This testimony was
relevant to framing the structure of the La ONU enterprise (i.e.,
that La ONU did, in fact, have leaders and that subordinate members
were to obey their orders), and corroborated the other testimony
regarding the rules and mission of the enterprise (i.e., that La
Rompe members were to be killed on-sight). Thus, we do not agree
with the Defendants that the Pep Boys evidence was not relevant to
the RICO count.
Even relevant evidence may be excluded sometimes,
though, "if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence." Fed. R. Evid. 403.
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The Defendants launch a Rule 403 attack on the Pep Boys evidence
based on unfair prejudice, but we reject that argument too.
"Usually, courts use the term 'unfair prejudice' for evidence that
invites the jury to render a verdict on an improper emotional
basis." United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir.
2000). The Defendants have made no effort to explain to us why
the Pep Boys evidence was unfairly prejudicial. See id. ("We
stress 'unfair' because by design, all evidence is meant to be
prejudicial." (internal quotation marks and alteration omitted)).
Given the nature of this violence-infested case, we see no reason
why testimony about an additional murder would cause the jury an
improper emotional reaction, and the Defendants have not provided
any reason. We find that the district court did not abuse its
discretion in letting in this evidence.38
38 Defendants additionally argue that the testimony of the Pep
Boys murder should not have been allowed under Rule 404(b). But
that rule bars introduction of "[e]vidence of a crime, wrong, or
other act" introduced "to prove a person's character in order to
show that on a particular occasion the person acted in accordance
with the character." Fed. R. Evid. 404(b)(1). Given that the
Defendants were not personally involved in the Pep Boys murder,
such that the Pep Boys murder would constitute one of their prior
bad acts, it is not readily apparent to us (and the Defendants do
not explain) how Rule 404(b) would apply here.
We also note that while the Defendants describe witness
testimony of other uncharged murders and violent crimes in their
factual recitation, they only argue that the Pep Boys murder was
impermissibly introduced, and so it is the only uncharged act we
address.
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In sum, we find that the district court did not abuse
its discretion in making the contested evidentiary rulings.
III. Multiple Conspiracies v. Single Conspiracy
Turning now to the jury charge, the Defendants argue
that the district court erred in declining to give a "multiple
conspiracies" instruction. Similarly, they argue that the
indictment varied from the government's case at trial, as the
indictment charged only a single conspiracy.
Jury Instruction
"This court reviews a district court's refusal to give
a requested jury instruction of this nature for abuse of
discretion." United States v. De La Cruz, 514 F.3d 121, 139 (1st
Cir. 2008). "The trial court's failure to give a proffered
instruction will not be reversed unless that instruction is (1)
substantively correct; (2) was not substantially covered in the
charge actually given; and (3) concerned an important point such
that the failure to give it seriously undermined the defendant's
ability to present a particular defense." Id. (internal quotation
marks omitted). "Under this third requirement, reversal is not
required unless a defendant suffers substantial prejudice." Id.
Here, the Defendants requested that the district court
instruct the jury that it was possible to find that multiple
conspiracies existed in this case, since, according to the
Defendants, the evidence indicated that the Defendants were
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involved in different schemes within their individual housing
projects.39 The court declined, noting that besides the fact that
the Defendants had not submitted any proposed jury instructions
for the court to consider, the evidence did not support giving the
instruction in any event.40
"A trial court should grant a defendant's request for a
multiple conspiracy instruction if, on the evidence adduced at
39 Apparently the Defendants did not actually submit a
proposed instruction to the court. But generally, a defendant's
proposed multiple-conspiracies instruction would go something like
this:
Where persons have joined together to further
one common unlawful design or purpose, a
single conspiracy exists. By way of contrast,
multiple conspiracies exist when there are
separate unlawful agreements to achieve
distinct purposes.
In deciding whether a single overall
conspiracy as charged in the indictment has
been proven beyond a reasonable doubt you
should look at whether there were multiple
agreements reached, whether there were
additions or withdrawals of alleged
conspirators, and most significantly, whether
the evidence shows beyond a reasonable doubt
that all of the alleged conspirators directed
their efforts toward the accomplishment of a
common goal or overall plan.
See, e.g., United States v. Brandon, 17 F.3d 409, 449 n.68 (1st
Cir. 1994) (alterations omitted).
40 While the government suggested at oral argument that it
opposed a multiple-conspiracies instruction, the written record is
silent on whether the government objected to the Defendants'
request for the instruction.
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trial, a reasonable jury could find more than one such illicit
agreement, or could find an agreement different from the one
charged." United States v. Brandon, 17 F.3d 409, 449 (1st Cir.
1994) (internal quotation marks omitted). In contrast, "[a] single
conspiracy exists where the totality of the evidence demonstrates
that all of the alleged co-conspirators directed their efforts
towards the accomplishment of a common goal or overall plan." Id.
at 450 (internal quotation marks omitted). "Determining the number
of conspiracies in a particular case depends on a variety of
factors including the nature, design, implementation, and
logistics of the illegal activity; the participants' modus
operandi; the relevant geography; and the scope of coconspirator
involvement." Id. (internal quotation marks omitted).
Problematic for the Defendants is that even if we assume
without deciding that the district court should have given the
instruction, they have not shown us how they suffered substantial
prejudice from the court's failure to do so. "In the context of
alleged multiple conspiracies, the defendant's main concern is
that jurors will be misled into attributing guilt to a particular
defendant based on evidence presented against others who were
involved in a different and separate conspiratorial scheme." Id.
"The prejudice we must guard against, therefore, is evidentiary
spillover resulting from trying defendants en masse for distinct
and separate offenses committed by others." Id. Thus, while the
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Defendants insist that the evidence showed the existence of an
individual conspiracy within each housing project, and that the
Defendants' conduct went to benefit those smaller conspiracies and
not La ONU, the prejudice we examine is not whether a defendant's
conduct might be attributable to a different conspiracy, but
rather, whether the conduct of a person from that different
conspiracy would be attributable to the defendant. The Defendants
do not at all address this prejudice standard; nor do they provide
any developed argument as to what specific conduct of other drug
dealers (who were involved in other drug conspiracies) might have
been attributed to them, such that the jury would not have
convicted them without such evidence.41 To the extent the
Defendants intended to argue that all the drug-trafficking
activities that came up at trial must be attributed to an
organization other than La ONU (with the reason being that La ONU
did not engage in its own drug trafficking), we have already
rejected their position that La ONU was not a drug-trafficking
conspiracy. The Defendants continuously overlook the overwhelming
41 The only specific conduct the Defendants point out is a
couple of murders committed by a person named "El Jincho." They
claim that Jincho acted on his own in committing those murders and
that they were not La ONU-sanctioned. However, the Defendants do
not explain why we should assume that Jincho was not acting on La
ONU's behalf. As they conceded earlier in their brief, there was
trial testimony that Jincho was a La ONU leader and that he ordered
that at least one of the murders be committed in retaliation for
someone stealing drugs from the organization.
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evidence that members of La ONU-controlled housing projects
collaborated with each other for the benefit of the greater La ONU
good. As we concluded above in our discussion of the RICO count,
"the evidence convincingly indicates the existence of a single,
unified conspiracy in which all the defendants participated." See
Brandon, 17 F.3d at 450.
Variance
In a similar vein, we reject the Defendants' argument
that the trial evidence impermissibly varied from the indicted
charges. "A variance occurs when the crime charged remains
unaltered, but the evidence adduced at trial proves different facts
than those alleged in the indictment." United States v.
Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011) (internal quotation
marks omitted). "When a defendant asserts a claim of variance
premised on the notion that multiple conspiracies existed and that
his activities were not part of the charged conspiracy, the initial
question is one of evidentiary sufficiency." Id. (internal
quotation marks and alterations omitted). And we have already
explained that the evidence was sufficient to find these Defendants
guilty of the single La ONU conspiracy.
On to the last issue.
IV. Sentencing
Finally, we reach the Defendants' inevitable claims of
sentencing error. Surprisingly there is only one -- the Defendants
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argue that the district court should not have concluded that they
were subject to mandatory life sentences on Count 29 (the VICAR
count) because the jury did not specifically find that they were
guilty of a particular statutory element of that offense.
Recall that the Defendants were convicted on Count 29
under 18 U.S.C. § 1959(a)(1), which provides, in relevant part,
that:
Whoever . . . for the purpose of gaining
entrance to or maintaining or increasing
position in an enterprise engaged in
racketeering activity, murders, kidnaps,
maims, assaults with a dangerous weapon,
commits assault resulting in serious bodily
injury upon, or threatens to commit a crime of
violence against any individual in violation
of the laws of any State or the United States,
or attempts or conspires so to do, shall be
punished —
(1) for murder, by death or life imprisonment,
or a fine under this title, or both.
Based on this provision, the district court concluded that life
sentences on this count were compulsory, since the jury found the
Defendants guilty of murdering Pequeque under Puerto Rico law. We
review the "district court's application of law at sentencing de
novo." United States v. García-Ortiz, 528 F.3d 74, 82 (1st Cir.
2008).
However inarticulately, the Defendants essentially argue
that because VICAR does not define "murder," given the statute's
relationship to RICO, we should apply RICO's definition of
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mandatory-life-imprisonment-eligible murder to determine what
counts as mandatory-life-imprisonment-eligible murder under VICAR.
That is, since the only type of murder that is subject to mandatory
life imprisonment under RICO is murder "for which the maximum
penalty includes life imprisonment," 18 U.S.C. § 1963, the same
should apply for VICAR. And since the jury here only found the
Defendants guilty of "murder," and not necessarily murder for which
the maximum penalty includes life imprisonment, the court could
not have applied VICAR's mandatory life sentence.42
However, the Defendants have not provided any argument
as to why we should assume that when applying § 1959(a)(1), we are
supposed to adopt the definition of "murder" provided in § 1963;
while related to RICO, VICAR is still a separate statute. Thus,
we deem this argument waived for lack of development.43 See
Zannino, 895 F.2d at 17.
42 While the Defendants do not explain this in their brief,
the backdrop for this argument is that all murder under Puerto
Rico law does not appear to be punishable by life imprisonment.
Specifically, "first-degree murder" (i.e., premeditated murder) is
punishable by 99 "natural years," while all other intentional
killings (classified as generic "murders") are punishable by a
maximum of 25 years. P.R. Laws Ann. tit. 33, §§ 4733-4735,
4694(a), (c).
43 Consequently, given that the jury specifically found the
Defendants guilty of murdering Pequeque, we need not address the
parties' wrangle about whether the verdict form should have further
specified whether the jury was finding the Defendants guilty of
murder or first-degree murder (as those terms are defined by Puerto
Rico law), or murder as otherwise defined therein.
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CONCLUSION
For all of these reasons, we vacate Cruz-Ramos's
convictions and remand his case for further proceedings,
consistent with this opinion. We affirm Laureano-Salgado's and
Ramírez-Rivera's convictions and sentences.
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-16-05057/USCOURTS-ca10-16-05057-0/pdf.json | [
[
"Michael Sherman Tolliver",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | FILED
United States Court of Appeals
Tenth Circuit
September 16, 2016
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SHERMAN TOLLIVER,
Defendant - Appellant.
No. 16-5057
(D.C. Nos. 4:15-CV-00204-JHP-FHM
and 4:10-CR-00141-JHP-1)
(N.D. Okla.)
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
Michael Tolliver seeks a certificate of appealability (COA) to contest the
district court’s order dismissing his 28 U.S.C. § 2255 motion for collateral relief
from his conviction and sentence. But to obtain a COA Mr. Tolliver must first
make “a substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), which requires him to establish “that reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that
*
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 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.
Appellate Case: 16-5057 Document: 01019689061 Date Filed: 09/16/2016 Page: 1
the issues presented were adequate to deserve encouragement to proceed further,”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
And this much Mr. Tolliver has not done. He claims his counsel was ineffective
in a variety of ways that offend the Sixth Amendment. But in a thorough 29-page
opinion the district court explained all the various problems attending Mr.
Tolliver’s claims, and we adopt its reasoning as our own.
For example, Mr. Tolliver first and primarily complains that his trial
counsel offered bad advice that induced him into choosing trial rather than a plea
deal that promised him a five-year prison term. But as the district court noted,
Mr. Tolliver’s lawyer did not counsel him to reject (or accept) the plea deal and
placed no pressure on him either way. To be sure, counsel did prepare a
memorandum relating to Mr. Tolliver’s potential sentence exposure in the event
of a loss at trial and discussed Mr. Tolliver’s exposure with him. And according
to counsel’s calculations, Mr. Tolliver faced a prison sentence of as long as 140
years if he lost at trial. To be sure, too, Mr. Tolliver now contends that, in fact,
he faced an even more substantial potential prison sentence and that, had he
known as much, he would have taken the plea deal. But this much is hard to
follow. As the district court observed, Mr. Tolliver fails to offer any credible
reason why he would have rejected a five-year plea deal knowing he faced a
potential sentence of 140 years yet would have accepted the same deal if only he
had known he faced an even longer potential sentence. In the district court’s
- 2 -
Appellate Case: 16-5057 Document: 01019689061 Date Filed: 09/16/2016 Page: 2
words, Mr. Tolliver offers no more than a “self-serving statement” that counsel’s
sentencing calculation error prejudiced him, a statement that “is not credible” on
the record at hand. D. Ct. Op. at 15. See Strickland v. Washington, 466 U.S. 668,
687 (1984) (requiring proof of prejudice as well as deficient performance).
By way of further example, Mr. Tolliver argues that his trial counsel was
defective for failing to challenge the constitutional sufficiency of his indictment.
He contends that his lawyer should have argued that his conviction under 18
U.S.C. § 844(h)(1) required proof that he committed the underlying felony of mail
fraud. But this court considered and rejected that very argument in Mr. Tolliver’s
direct appeal. United States v. Tolliver, 730 F.3d 1216, 1225 (10th Cir. 2013)
(“[T]he government did not need to indict [Defendant] for or convict him of the
predicate offense [of mail fraud] in order to obtain a conviction for violation of
§ 844(h)(1).” (second and third brackets in original)). And it is difficult to
discern how Mr. Tolliver might have been prejudiced by trial counsel’s failure to
raise a legal argument that was later pressed and rejected on the merits on appeal.
The request for a COA is denied and this appeal is dismissed. Mr.
Tolliver’s unopposed motion to seal Appellant’s Appendix Volume XI is granted.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
- 3 -
Appellate Case: 16-5057 Document: 01019689061 Date Filed: 09/16/2016 Page: 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-07-40130/USCOURTS-ca5-07-40130-0/pdf.json | [
[
"Richard John Florance Jr.",
"Appellant"
],
[
"State of Texas",
"Appellee"
]
] | United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
CHARLES R. FULBRUGE III
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
August 13, 2007
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing or
Rehearing En Banc
No. 07-40130 State of Texas v. Florance
USDC No. 4:06-CV-510
----------------------------------------------
Enclosed is a copy of the court's decision. The court has entered
judgment under FED. R. APP. P. 36. (However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
FED. R. APP. P. 39 through 41, and 5TH CIR. RULES 35, 39, and 41 govern
costs, rehearings, and mandates. 5TH CIR. RULES 35 and 40 require you to
attach to your petition for panel rehearing or rehearing en banc an
unmarked copy of the court's opinion or order. Please read carefully
the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40
and 5TH CIR. R. 35 for a discussion of when a rehearing may be
appropriate, the legal standards applied and sanctions which may be
imposed if you make a nonmeritorious petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a
stay of mandate under FED. R. APP. P. 41 will not be granted simply
upon request. The petition must set forth good cause for a stay or
clearly demonstrate that a substantial question will be presented to
the Supreme Court. Otherwise, this court may deny the motion and issue
the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court and/or on
appeal, and are considering filing a petition for certiorari in the
United States Supreme Court, you do not need to file a motion for stay
of mandate under FED. R. APP. P. 41. The issuance of the mandate does
not affect the time, or your right, to file with the Supreme Court.
Sincerely,
CHARLES R. FULBRUGE III, Clerk
By:
Rhonda Flowers, Deputy Clerk
Enclosure
Mr Richard John Florance Jr
Case: 07-40130 Document: 0051175373 Page: 1 Date Filed: 08/13/2007 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_12-cv-01821/USCOURTS-caed-1_12-cv-01821-5/pdf.json | [
[
"Cascade Water Services, Inc.",
"Defendant"
],
[
"Nicholas Millan",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
NICHOLAS MILLAN, on behalf of
of himself and others similarly situated,
Plaintiffs,
vs.
CASCADE WATER SERVICES,
INC.; and DOES 1 to 50, inclusive,
Defendants.
CASE NO.: 1:12-cv-01821-AWI-EPG
ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT AND COLLECTIVE
ACTION SETTLEMENT
(Doc. 51)
On October 23, 2015, this Court granted conditional Rule 23 class certification1and FLSA
collective action certification but denied preliminary approval of the proposed class action
settlement. The Court went through a thorough examination of the settlement agreement and
noted concerns regarding calculation of the rates of occurrence of the Labor Code violations, the
claim form submission requirement as to the Rule 23 class, the need to create separate funds for
payment of Rule 23 and FLSA claims, and the potential reversion (particularly of FLSA funds).
Doc. 47 at 25.
The parties have submitted an amended proposed settlement agreement that wholly
ameliorates the Court’s concerns. Class Counsel has explained the need for approximation of the
1
In Plaintiff’s amended motion for settlement approval, Plaintiff expressed that the parties were uncertain as to
whether the Court intended to grant Rule 23 and FLSA certification only for purposes of settlement or without
restriction. Because, as the parties note, Plaintiff moved only for certification for purposes of settlement the Court
granted certification only for purposes of settlement.
Case 1:12-cv-01821-AWI-EPG Document 52 Filed 01/14/16 Page 1 of 4
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violation rates. Declaration of Darren Cohen, Doc. 51-1 (“Cohen Decl.”) at ¶¶ 16-18. Next, the
amended settlement agreement: eliminates the requirement that class members submit a claim
form for the Rule 23 class, Second Joint Stipulation of Class Action Settlement and Release, Doc.
51-2 (“S.A.”) at § VI, divides the net settlement fund, allocating 66% to the Rule 23 claims and
34% to the FLSA claims, and eliminates the reversion provision, S.A. at § VI. The amended
agreement further provides that the unclaimed FLSA funds will be distributed between all
settlement class members on a pro-rata basis. S.A. at § VI. The notice provisions and the
substance of the notice provided for in the amended settlement agreement appear to be calculated
to impart notice on as many class members as possible of the substance of this action, how to
receive settlement payments, and the rights that each settlement class member gives up to do so.
Doc 51-2 at 49-59.
As the Court’s prior order indicated, the Court “may grant preliminary approval of a
settlement and direct notice to the class if the settlement: (1) appears to be the product of serious,
informed, non-collusive negotiations; (2) has no obvious deficiencies; (3) does not improperly
grant preferential treatment to class representatives or segments of the class; and (4) falls within
the range of possible approval.” Doc. 47 at 20 (citing In re Tableware Antitrust Litigation, 484
F.Supp.2d 1078, 1079 (N.D. Cal. 2007); Manual for Complex Litg., Second § 30.44 (1985)). The
Court considered the requirements for preliminary approval in its prior order. It explained that the
prior settlement was outside of the range of possible approval only because of the concerns that
the parties have since resolved. Based on the Court’s review of the amended settlement
agreement, it appears that the Parties’ amended agreement is the product of serious, informed,
non-collusive negotiations, has no obvious deficiencies, does not grant preferential treatment to
class representatives, segments of the class, or counsel, and falls within the range of possible
approval. For those reasons the amended settlement agreement will be preliminary approved.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion for preliminary approval of class and collective action settlement is
GRANTED as follows:
a. The Settlement Agreement is preliminarily approved as it appears to be fair,
Case 1:12-cv-01821-AWI-EPG Document 52 Filed 01/14/16 Page 2 of 4
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adequate, and reasonable to the Class and falls within the range of reasonableness
and appears to be presumptively valid. This preliminary approval is subject to any
objections that may be raised at the final fairness hearing (“Fairness Hearing”),
and granting of Final Approval by the Court. The Court reserves ruling on the
reasonableness of Class Counsel’s request for attorneys’ fees and costs, which is
not presently before the Court, until the Fairness Hearing.
b. A Fairness Hearing on the question of whether the proposed Settlement, including
the attorneys’ fees and costs to Class Counsel, the Class Representative’s Service
Enhancement Award, the Claims Administration Costs, and the PAGA Payment to
the LWDA, should be finally approved as fair, reasonable and adequate as to the
members of the Class is scheduled for May 31, 2016, at 1:30 p.m. (Pacific Time),
in Courtroom 2 of the above-entitled Court.
c. The Court approves, as to form and content, the Notice of Pendency of Settlement
of Class Action; Settlement Hearing; and Opt In and Exclusion Procedures
(“Notice”) and FLSA Collective Action Member Consent to Join Form (Exhibits
“A” and “B”) in substantially the forms attached to the Settlement Agreement. The
Court approves the procedure for Class Members to request exclusion from, object
to, or Opt In to the Settlement Class as set forth in the Notice.
d. The Court directs the mailing of Exhibits A and B in substantially the forms
attached to the Settlement Agreement, by first class mail to the Class Members in
accordance with the Implementation Schedule set forth below. The Court finds
that the dates selected for the mailing and distribution of the Notice, as set forth in
the Implementation Schedule, meet the requirements of due process and provide
the best notice practicable under the circumstances and shall constitute due and
sufficient notice to all persons entitled thereto and thus satisfies the Federal Rules
of Civil Procedure and Constitutional Due Process.
e. The Court approves Nicholas Millan as the Class Representative for settlement
purposes only.
Case 1:12-cv-01821-AWI-EPG Document 52 Filed 01/14/16 Page 3 of 4
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f. The Court confirms Darren M. Cohen of Kingsley & Kingsley, APC as Class
Counsel.
g. CPT Group, Inc. shall serve as the Claims Administrator in this matter.
h. Finally, the Court orders the following Implementation Schedule for further
proceedings:
i. The Defendant must provide class information to the Claims Administrator
by Friday, January 29, 2016.
ii. The Claims Administrator must mail notices to class members by Tuesday,
February 16, 2016.
iii. For FLSA Opt In Forms, Exclusions, or Objections to be timely, they must
be filed by Monday, April 18, 2016.
iv. Class Counsel must file a Motion for Final Approval of Settlement and
Motion for Attorney Fees by Monday, May 16, 2016.
v. A Final Fairness Hearing is set for Tuesday May 31, 2016 at 1:30 p.m. in
Courtroom 2 of the above-entitled Court.
IT IS SO ORDERED.
Dated: January 13, 2016
SENIOR DISTRICT JUDGE
Case 1:12-cv-01821-AWI-EPG Document 52 Filed 01/14/16 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-01776/USCOURTS-caed-2_16-cv-01776-0/pdf.json | [
[
"Jose Torres-Hurtado",
"Petitioner"
],
[
"Rafael Zuniga",
"Respondent"
]
] | 1
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1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JOSE TORRES-HURTADO,
Petitioner,
v.
RAFAEL ZUNIGA, Warden,
Respondent.
No. 2:16-cv-01776 JAM AC P
ORDER
Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, together with a request to proceed in forma pauperis.
Petitioner was convicted and sentenced in the United States District Court for the Central District
of California, and is incarcerated at the Mendota Federal Correctional Institution (MFCI), which
is located in Fresno County, and therefore within the Fresno Division of the United States District
Court for the Eastern District of California. See Local Rule 120(d).
The petition challenges the “manner in which [petitioner’s] sentence is being executed” at
MCFI, and seeks a re-computation consistent with the concurrent sentencing order issued by the
Central District. “[P]etitions that challenge the manner, location, or conditions of a sentence’s
execution must be brought pursuant to § 2241 in the custodial court.” Hernandez v. Campbell,
204 F.3d 861, 864 (9th Cir. 2000) (citations omitted).
////
Case 2:16-cv-01776-JAM-AC Document 10 Filed 09/14/16 Page 1 of 2
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2
Pursuant to Local Rule 120(f), 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. Accordingly, this action will be transferred to the Fresno Division of the court. This court
has not ruled 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 Fresno; and
3. All future filings shall reference the new Fresno case number assigned and shall be
filed at:
United States District Court
Eastern District of California
2500 Tulare Street
Fresno, CA 93721
DATED: September 13, 2016
Case 2:16-cv-01776-JAM-AC Document 10 Filed 09/14/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-13-15343/USCOURTS-ca11-13-15343-0/pdf.json | [
[
"Kara Singleton Adams",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 12-11084, 13-15343
________________________
D.C. Docket No. 1:10-cr-00006-CAP-JFK-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KARA SINGLETON ADAMS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 11, 2015)
Before MARCUS and JILL PRYOR, Circuit Judges, and HINKLE,
* District
Judge.
PER CURIAM:
*
Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 1 of 17
2
Kara Adams appeals her convictions and sentence of 210 months’
imprisonment for running Georgia-based telemarketing businesses that defrauded
their customers. At trial, a jury heard testimony that the businesses represented
themselves as third-party negotiators who could influence credit card companies to
reduce customers’ interest rates, when in fact Ms. Adams’s businesses frequently
failed to secure rate reductions and typically only provided customers with meager,
unsolicited financial planning advice instead. The jury found her guilty of
conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. §§ 371, 1341,
and 1343; wire fraud, in violation of 18 U.S.C. §§ 1343 and 2326; illegally
structuring financial transactions, in violation of 31 U.S.C. §§ 5324(a)(1) and
5324(a) and 31 CFR Part 103; and conspiracy to commit obstruction of justice, in
violation of 18 U.S.C. §§ 371 and 1512(c)(2).
On appeal, Ms. Adams argues that the district court erred by (1) denying her
motion to continue trial even though she needed more time to mine information
from a database she argues was critical to the defense or, in the alternative,
denying her motion for new trial after she gleaned some of that information;
(2) admitting evidence of a Florida state civil investigation into her previous
business ventures; (3) admitting testimony from a Florida investigator that
referenced consumer complaints about those businesses; and (4) imposing a
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 2 of 17
3
sentence that was substantively unreasonable. With the benefit of oral argument,
and after careful review, we affirm her convictions and sentence.
I.
In 2008 and 2009, Ms. Adams’s various businesses initiated phone calls
from Georgia to consumers across the country in which a live representative or a
prerecorded message invited consumers to speak about lowering their credit card
interest rates.1
Then, reading from a script, live representatives explained that, for
a fee, the business would negotiate with credit card companies for rate reductions
on its customers’ behalf. The representatives claimed that Ms. Adams’s businesses
had special relationships with credit card companies and guaranteed the service
would save customers at least $4,000 in their credit card payments over time. The
representatives promised that if the guaranteed savings were not achieved, the
customer would receive a refund of the cost of the program, which was typically
between $749 and $1,495. Using this pitch, Ms. Adams’s businesses attracted
thousands of customers and generated revenue in the tens of millions of dollars. At
trial, the government sought to prove the business model was a fraud. Customers
testified that there appeared to be no special relationships between Ms. Adams’s
businesses and the credit card companies because, on three-way calls with the
1 Though the business model remained the same, Ms. Adams and her associates cycled
through many different corporate entities and business names. They switched entities whenever
a business generated too many complaints or lost a merchant account due to excessive
chargebacks.
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 3 of 17
4
customer, Ms. Adams’s representatives simply made requests for reductions that
the credit card companies denied. Ms. Adams’s employees testified that no such
special relationships existed. Despite the emphasis that representatives placed on
rate reduction in sales calls, the primary service the businesses provided was a
financial analysis that described how customers should structure their credit card
payments to achieve the promised savings. Employees and customers testified
that, at best, these analyses merely instructed customers to follow an aggressive
payment plan, and, at worst, they also contained inaccurate calculations and
overestimated savings.
Naturally, some unsatisfied customers asked for refunds. Employees
testified that Ms. Adams instituted policies to protect her sales regardless of the
merit of a customer’s complaint: she set quotas for refunds, fought all chargebacks
from credit card companies,2 and instructed employees to alter analyses if they did
not reflect the guaranteed savings. Accordingly, customers testified that they
failed to obtain refunds despite their persistent attempts. The government also
introduced evidence of a Florida state civil investigation into similar business
operations Ms. Adams ran in that state, to demonstrate both that she knew her
2 A chargeback is a process by which a credit card company challenges the validity of a
transaction in which a business has charged a customer. The process requires the business to
respond to the customer’s complaint with a justification of the transaction, called a rebuttal.
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 4 of 17
5
practices were illegal and that she had a reason to flee to Georgia to begin her
scheme anew.
The trial took place between October 24, 2011 and November 7, 2011, over
twenty-one months after a grand jury returned the first indictment in the case in
January 2010. Trial had originally been set for December 6, 2010, but the parties
filed several motions to continue due to voluminous discovery. Not long after Ms.
Adams filed her first motion to continue trial on April 15, 2011, she discovered
that one of her businesses’ computer servers, which had been in the possession of a
Federal Trade Commission (“FTC”) receiver for over a year due to a related civil
case, contained a database called “ApSuite” (the “database”) that included
customer tracking information that might support a defense theory that she ran
legitimate businesses. On August 30, 2011, due to technological barriers that
prevented her from accessing information in the database, Ms. Adams filed—and
the district court granted—another motion to continue trial. Finally, at a pretrial
conference on October 20, 2011, Ms. Adams made an oral motion to continue trial
again for the same reason. The district court denied this motion, and the trial
proceeded as planned four days later.
The jury convicted Ms. Adams of one count of conspiracy to commit mail
and wire fraud, nine counts of wire fraud, seven counts of structuring financial
transactions, and one count of conspiracy to commit obstruction of justice. On
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 5 of 17
6
February 9, 2012, the district court sentenced her to 210 months’ imprisonment.
Ms. Adams timely appealed the judgment. In the meantime, she continued trying
to access the database. Once she was able to glean usable information from the
database, Ms. Adams filed a motion for new trial, which the district court denied
on September 20, 2013. She appealed that order, and we consolidated her appeals.
II.
Ms. Adams first argues that the district court erred in denying her final
motion to continue trial and her later motion for new trial because information
extracted from the database would have been critical to her defense. According to
Ms. Adams, the database contains customer tracking information showing that
many customers received rate reductions and were satisfied with the program.
Although Ms. Adams failed to satisfy all her customers, she contends these mixed
results could persuade a jury that at least she did not intend to defraud her
customers. We disagree. Given the negligible value of the evidence she ultimately
extracted from the database and her failure to pursue the contents of the database
diligently before trial, we affirm both of the district court’s orders.
A.
“We review a district court’s denial of a motion for continuance only for an
abuse of discretion.” United States v. Valladares, 544 F.3d 1257, 1261 (11th Cir.
2008). “To prevail on such a claim, a defendant must show that the . . . abuse of
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 6 of 17
7
discretion . . . resulted in specific substantial prejudice.” United States v.
Verderame, 51 F.3d 249, 251 (11th Cir. 1995). “There are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to violate due process.
The answer must be found in the circumstances present in every case, particularly
in the reasons presented to the trial judge at the time the request is denied.” Id.
(quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).
[T]he following factors [are] highly relevant in assessing claims of
inadequate preparation time: the quantum of time available for
preparation, the likelihood of prejudice from denial, the accused’s role
in shortening the effective preparation time, the degree of complexity
of the case, and the availability of discovery from the prosecution.
United States v. Garmany, 762 F.2d 929, 936 (11th Cir. 1985) (quoting United
States v. Uptain, 531 F.2d 1281, 1286-87 (5th Cir. 1976)).3
Although we must consider only the reasons that Ms. Adams presented at
the time of her motion to continue trial, we also must “examine the trial court’s
denial of a continuance in light of what an examination of the discovery material
reveals to defense counsel after the trial.” United States v. Medina-Arellano, 569
F.2d 349, 354 (5th Cir. 1978). In effect, we may examine the record supporting
Ms. Adams’s motion for new trial to determine if the database would have been as
useful as Ms. Adams hoped during the pretrial conference. The evidence included
3 This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 7 of 17
8
affidavits from the defense team describing the difficulty of accessing the database
and the team’s follow-up investigation into its contents and listing six witnesses
identified through that investigation who could testify that their credit card interest
rates were reduced after purchasing Ms. Adams’s program.
We conclude that very little, if any, prejudice resulted from Ms. Adams’s
inability to access the database to her satisfaction in time for trial. The testimony
of six witnesses who received rate reductions would have been wholly insufficient
to rebut the government’s theory of prosecution, which contemplated that credit
card companies might occasionally respond positively to the straightforward
requests that Ms. Adams’s businesses made on behalf of customers. Indeed,
employees testified that some rate reductions occurred. The government’s theory
of fraud was that Ms. Adams misrepresented that her businesses had special
relationships with credit card companies and that she would refund any customer
who did not obtain the guaranteed savings. Even a customer who received a rate
reduction might still have been injured by Ms. Adams’s fraud if the customer
received a fabricated financial statement or failed to obtain a deserved refund.
Thus, the database would not have been useful to the defense in rebutting the
government’s case at trial.
Further, Ms. Adams herself played a large role in shortening the time
available before trial to access the database. She argues that she only learned of
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9
the database’s location in May 2011 when her technician examined property in the
FTC receiver’s possession. Contrary to her insistence that the government gave
her no guidance in finding the database, however, the government had mailed her a
letter a year earlier, in May 2010, disclosing that the FTC possessed, among other
things, computers and servers seized in the related civil case. We cannot say that
the five months between May and October of 2011 was too small a window for
Ms. Adams to access the database when she waited a year to investigate the
contents of those computers and servers. Ms. Adams had promised in her second
motion to continue trial that “[t]he defense [would] not request another
continuance in this case.” United States v. Adams, No. 1:10-CR-00006-CAP-JFK1, Doc. 268 at 13 (N.D. Ga. Aug. 30, 2011). By the time of the pretrial conference,
when the district court ruled on the oral motion to continue, witnesses’ travel
arrangements had been set. The district court did not abuse its discretion by
proceeding to trial as planned.
B.
“We review the district court’s denial of a motion for new trial based on
newly discovered evidence for abuse of discretion.” United States v. Vallejo, 297
F.3d 1154, 1163 (11th Cir. 2002). The district court’s analysis in considering a
motion for new trial based on new evidence is similar to, if distinct from, the
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 9 of 17
10
analysis required in considering a motion to continue trial in order to examine
discovery further.
When a defendant discovers new evidence after trial that was
unknown to the government at the time of trial, a new trial is
warranted only if: (1) the evidence was in fact discovered after trial;
(2) the defendant exercised due care to discover the evidence; (3) the
evidence was not merely cumulative or impeaching; (4) the evidence
was material; and (5) the evidence was of such a nature that a new
trial would probably produce a different result.
United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (internal
quotation marks omitted). In the context of a motion for new trial, we are
expressly instructed that “[t]he failure to satisfy any one of these elements is fatal”
to the motion. Id. (internal quotation mark omitted).
The facts informing our review of the district court’s denial of Ms. Adams’s
motion for new trial are identical to those justifying the denial of her motion to
continue trial. She failed to exercise due care in locating and accessing the
database between May 2010 and May 2011, and the affidavits attached to her
motion failed to demonstrate that the database yielded non-cumulative evidence
that would probably produce a different result in a new trial. See id. The district
court did not abuse its discretion in denying the motion.
III.
Ms. Adams next argues that the district court improperly admitted evidence
of a Florida civil investigation and settlement negotiations arising out of similar
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 10 of 17
11
conduct not specified in the indictment. At trial, she renewed a motion in limine to
exclude this evidence under Federal Rules of Evidence 403 and 404(b) on the
grounds that it was impermissible character evidence. To be admissible under
Rule 404(b), “other crimes” evidence must satisfy a three-part test: “(1) the
evidence must be relevant to an issue other than the defendant’s character; (2) the
act must be established by sufficient proof to permit a jury finding that the
defendant committed the extrinsic act;” and (3) any undue prejudice must not
substantially outweigh its probative value, “and the evidence must meet the
requirements of Rule 403.” United States v. Zapata, 139 F.3d 1355, 1357 (11th
Cir. 1998). Although the grounds for Ms. Adams’s Rule 404(b) objection were
more extensive at trial, her only argument in support of this objection on appeal is
that the government failed to prove that she actually did engage in similar conduct
in Florida.
Because Ms. Adams preserved her evidentiary challenge at trial, we review
the district court’s ruling for an abuse of discretion. United States v. Baker, 432
F.3d 1189, 1202 (11th Cir. 2005). We conclude that the evidence properly was
admitted. The requirement that the government provide “sufficient proof so that a
jury could find that the defendant committed the extrinsic act” is “part of the
relevance analysis” the district court must conduct. United States v. Miller, 959
F.2d 1535, 1538 (11th Cir. 1992) (en banc). In other words, Ms. Adams’s
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 11 of 17
12
evidentiary challenge on appeal is, in essence, a broad challenge to the relevance of
the civil investigation. Even if there were no evidence that Ms. Adams was
responsible for the fraud suspected in the Florida civil investigation, evidence of
the investigation remains relevant to her intent because it shows she was on notice
that certain telemarketing practices were fraudulent. Ms. Adams’s argument that
the government failed to prove she actually committed fraud in Florida is therefore
misplaced. The district court did not abuse its discretion in admitting evidence of
the Florida civil investigation.
IV.
Ms. Adams appeals one other evidentiary ruling by the district court
pertaining to related conduct in Florida. At trial, she objected on hearsay grounds
to the admission of a Florida state investigator’s testimony summarizing consumer
complaints about the businesses she ran there before moving to Georgia. The
district court overruled her objection. The investigator then testified that the
primary complaint he received regarding Ms. Adams’s businesses was that they
made misrepresentations to consumers. His testimony included a brief, general
account of the businesses’ sales pitch, the nature of their interactions with
consumers, and their pattern of failing to respond to complaints and issue refunds.
On appeal, Ms. Adams challenges the hearsay ruling and newly asserts that the
admission of this testimony also violated her rights under the Confrontation Clause
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 12 of 17
13
of the Sixth Amendment because she had no opportunity to cross-examine the
consumers, whose statements to the investigator were testimonial in nature.
We review the district court’s ruling on Ms. Adams’s hearsay objection for
an abuse of discretion, see Baker, 432 F.3d at 1202, but, because it was not made
below, we review her new Confrontation Clause argument for plain error. See
United States v. Chau, 426 F.3d 1318, 1321-22 (11th Cir. 2005) (“[A] hearsay
objection does not preserve the Crawford [Confrontation Clause] issue . . . .”). In
either case, we find no error. The investigator described the nature of the
complaints generally, rather than any specific statements that were made. Further,
the government did not introduce any individual complaints or a summary of
complaints to prove their truth. Instead, the testimony explained the purpose and
nature of the investigator’s own work in Florida and clarified the sequence of
events that led him to refer the investigation to interested authorities in Georgia.
Accordingly, his testimony was not hearsay,4 and its admission did not violate the
Confrontation Clause. See Fed. R. Evid. 801(c)(2); Crawford v. Washington, 541
4 Because we conclude the investigator’s testimony was not inadmissible hearsay, we
need not perform a harmless error analysis. In his concurrence, Judge Hinkle concludes that
some of the testimony was inadmissible hearsay because the investigator went beyond the nature
of the complaints to “what Ms. Adams’s businesses actually did.” United States v. Adams, __
Fed. App’x __ (11th Cir. 2015) (Hinkle, J., concurring). In our view, the investigator’s brief
description of what the businesses purported to offer and how they interacted with consumers
was necessary to understand, and thus integral to, the nature of the complaints.
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 13 of 17
14
U.S. 36, 59 n.9 (2004) (“The Clause . . . does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted.”).
V.
Finally, Ms. Adams argues that her sentence of 210 months’ imprisonment
was substantively unreasonable. Specifically, she argues that the district court
failed to consider adequately the sentencing factors articulated in 18 U.S.C.
§ 3553(a) in two ways: (1) the district court ignored the “modesty of the individual
impact” of the fraud on each customer;
5 and (2) the disparity between her sentence
and those of her codefendants was unwarranted because, according to Ms. Adams,
she was penalized for going to trial. We reject these arguments and affirm her
sentence.
We review the substantive reasonableness of a sentence for an abuse of
discretion, vacating the sentence only if we “are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).
Although the district court must evaluate all the § 3553(a) factors, it is free to
5 Appellant’s Br. at 83.
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 14 of 17
15
assign “great weight” to any one of the factors. United States v. Shaw, 560 F.3d
1230, 1237 (11th Cir. 2009) (internal quotation marks omitted).
The district court noted on the record that it had considered the § 3553(a)
factors in arriving at Ms. Adams’s sentence, which was at the high end of the
guideline range but still within it. We agree with the district court’s reasoning that
the victims in this case were likely vulnerable, even if their losses might appear
modest in comparison to victims’ losses in some other fraud cases. In any event,
the district court did not abuse its discretion in emphasizing the nature of the
offense or the need for deterrence in like cases.
Nor did the district court abuse its discretion in sentencing Ms. Adams to a
significantly higher sentence than cooperating codefendants who entered into plea
agreements. We acknowledge that the district court must “avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct . . . .” 18 U.S.C. § 3553(a)(6). Nevertheless, “defendants
who cooperate with the government and enter a written plea agreement are not
similarly situated to a defendant who provides no assistance to the government and
proceeds to trial.” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir.
2009). This analysis precludes comparison of two defendants “even when the
sentence the cooperating defendant receives is ‘substantially shorter.’” Id.
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 15 of 17
16
(quoting United States v. Williams, 526 F.3d 1312, 1323 (11th Cir. 2008)). Thus,
we cannot say that Ms. Adams’s sentence is substantively unreasonable.
VI.
For the foregoing reasons, Ms. Adams’s convictions and sentence are
AFFIRMED.
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 16 of 17
17
HINKLE, District Judge, concurring:
I concur in the result and in all of the opinion except section IV. Section IV
addresses a hearsay objection to a Florida state investigator’s testimony about
events in Florida prior to the charged conduct in Georgia.
The chronology at trial was this. The government asked the investigator the
nature of the complaints the State of Florida received about Ms. Adams’s
businesses. The defense objected based on hearsay. The court overruled the
objection, saying the investigator could testify about the nature of the complaints.
The ruling was correct, for the reasons explained in section IV of the majority’s
opinion.
The difficulty is that the investigator went further, testifying not just to the
nature of the complaints, but to what Ms. Adams’s businesses actually did. At
least some of that testimony was inadmissible hearsay. But the defense did not
object again. The defense did not ask the court to block or strike the testimony.
In short, the court was asked to rule just once—on the initial hearsay
objection—and the court got it right. The defense should not be heard on appeal to
complain about testimony that came in without further objection after a correct
ruling on the only objection that was made. This makes it unnecessary to address
whether this testimony was harmless.
USCA11 Case: 13-15343 Date Filed: 06/11/2015 Page: 17 of 17 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-arwd-5_04-cv-05175/USCOURTS-arwd-5_04-cv-05175-1/pdf.json | [
[
"Arvest Bank",
"Defendant"
],
[
"Sanderson Farms, Inc.",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
SANDERSON FARMS, INC. PLAINTIFF
vs. No. 5:04-cv-5175
ARVEST BANK DEFENDANT
O R D E R
NOW on this 22nd day of September, 2005, comes on for
consideration the above-styled cause.
IT APPEARING to the court that the matter has been settled,
counsel for all parties having so advised the court, it is
ORDERED that the case be, and it is hereby, dismissed with
prejudice, subject to the terms of the settlement agreement.
If any party desires to make the terms of settlement a part
of the record herein, those terms should be reduced to writing
and filed with the court within thirty (30) days from the file
date of this order.
The court retains jurisdiction to vacate this order and to
reopen the action upon cause shown that settlement has not been
completed and that a party wishes this court to enforce the
settlement agreement specifically.
/s/William R. Wilson, Jr.
WILLIAM R. WILSON, JR.
UNITED STATES DISTRICT JUDGE
Case 5:04-cv-05175-BRW Document 56 Filed 09/22/05 Page 1 of 1 PageID #: <pageID> |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-06-04121/USCOURTS-ca8-06-04121-1/pdf.json | [
[
"Health Care Indemnity",
"Appellee"
],
[
"Health Midwest Insurance Company",
"Appellee"
],
[
"Parthenon Insurance Company",
"Appellee"
],
[
"Douglas B. Stalley",
"Appellant"
],
[
"Triad Hospitals",
"Appellee"
],
[
"Triad Hospitals Holdings",
"Appellee"
]
] | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3884
___________
Douglas B. Stalley, on behalf of the *
United States of America, *
*
Plaintiff/Appellant, *
*
v. *
*
Catholic Health Initiatives, a Colorado *
Corporation; Bergen Mercy Foundation, *
Inc., a Nebraska corporation; Alegent *
Health-Bergen Mercy Health System, a *
Nebraska corporation; Alegent Health, *
a Nebraska corporation; Preferred *
Professional Insurance Company, a *
Nebraska corporation; Advocate *
Insurance Resources SPC, a Cayman *
Islands company, *
*
Defendants/Appellees. *
___________ Appeals from the United States
District Court for the Eastern
No. 06-4121 District of Arkansas.
___________
Douglas B. Stalley, on behalf of the *
United States of America, *
*
Plaintiff/Appellant, *
*
v. *
Triad Hospitals, LLC, a Delaware *
Appellate Case: 06-4121 Page: 1 Date Filed: 12/20/2007 Entry ID: 3384704
1
The district judge in Stalley v. Catholic Health Initiatives, No. 06-3884, was
the late Honorable George Howard, Jr., United States District Judge for the Eastern
District of Arkansas. The district judge in Stalley v. Triad Hospitals, No. 06-4121,
was the Honorable William R. Wilson, United States District Judge for the Eastern
District of Arkansas.
-2-
limited liability company; Triad *
Hospitals, Inc., a Delaware Corporation; *
Triad Hospitals Holdings, Inc., a *
Delaware corporation; Parthenon *
Insurance Company, Limited, a *
Bermuda company; Health Midwest *
Insurance Company, Limited, a Cayman *
Islands company; Health Care *
Indemnity, Inc., a Colorado corporation, *
*
Defendants/Appellees.
___________
Submitted: May 17, 2007
Filed: November 27, 2007 (Corrected 12/20/07)
___________
Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
In these two consolidated appeals we consider whether a plaintiff who has
alleged no injury to himself has standing to bring suit under the Medicare Secondary
Payer statute, 42 U.S.C. § 1395y(b)(3)(A). Because we conclude that the suit
authorized by the statute is a private cause of action, which requires the plaintiff to
have standing in his own right, rather than a qui tam statute, which allows the plaintiff
to assert injury to the United States, we affirm the district courts'1
dismissal of these
cases.
Appellate Case: 06-4121 Page: 2 Date Filed: 12/20/2007 Entry ID: 3384704
2
Erin Brockovich has filed a number of similar cases in California.
3
Stalley also lists Bergen Mercy Foundation, Inc., Alegent Health-Bergen
Mercy Health System, Alegent Health as provider plaintiffs, but refers to these
together with Catholic Health Initiatives as "CHI."
4
Stalley also lists Triad Hospitals LLC and Triad Hospital Holdings, Inc. as
provider plaintiffs, but refers to these defendants together with Triad Hospitals, Inc.
as "Triad."
5
In the Catholic Health Initiatives case, the insurer defendants are Preferred
Professional Insurance Company and Advocate Insurance Resources, SPC. In the
Triad case, the insurer defendants are Parthenon Insurance Company, Limited, Health
Midwest Insurance Company, Limited, and Health Care Indemnity, Inc.
-3-
Both of these cases were filed by the same plaintiff, Douglas B. Stalley, who
has also filed many similar cases around the country.2
Stalley alleges that the
defendants Catholic Health Initiatives3
and Triad Hospitals, Inc.4 are medical care
providers participating in the Medicare program, who partly self-insure for
malpractice. He alleges that the insurance company defendants5
were subsidiaries or
sister companies to the provider defendants and wrote malpractice insurance for the
provider defendants.
Stalley's substantive allegations are substantially the same in the two suits
before us:
On numerous occasions, [the provider defendants] by and through
[their] employees and agents, caused harm to Medicare recipients who
were patients in [the defendants'] hospitals, thereby triggering legal
obligation on the part of [the hospital defendants] and the other primary
payer Defendants herein to pay for any consequential medical service,
treatment, or medication. Nevertheless, [the provider defendants]
provided medical services, treatment, and medication to such Medicare
recipients who were harmed by [the provider defendants'] own conduct,
Appellate Case: 06-4121 Page: 3 Date Filed: 12/20/2007 Entry ID: 3384704
-4-
and thereafter received reimbursement from Medicare for treating those
injured Medicare recipients.
The complaints allege that the insurer defendants knew that the provider defendants
had injured the Medicare beneficiaries and that the insurer defendants were liable as
primary payers, yet the insurer defendants did not reimburse Medicare for the costs
of treatment. The complaint does not allege that Stalley was either a Medicare
beneficiary or a patient of the defendants or that he was injured by the defendants in
any way. For that matter, the complaint does not identify any particular person who
was injured by the defendants at any particular time.
The defendants in both cases moved to dismiss for lack of jurisdiction and for
failure to state a claim. Both district courts granted the motion. The district court in
the Catholic Health Initiatives case ruled first, holding that Stalley lacked
constitutional standing to bring the suit because he had not alleged any injury to
himself. Stalley v. Catholic Health Initiatives, 458 F. Supp. 2d 958, 962-63 (E.D. Ark.
2006). Stalley contended that he had standing because he asserted injury to the United
States and the Medicare Secondary Payer statute was a qui tam statute that authorized
him to bring suit as relator for the United States. The district court examined the
Medicare Secondary Payer statute and found no support for the notion that it was a qui
tam statute. Id. at 963. Accordingly, the court dismissed Stalley's suit under Fed. R.
Civ. P. 12(b)(1) for lack of standing. Alternatively, the court held that Stalley had not
alleged a cause of action under 42 U.S.C. § 1395y(b)(3)(A) because he had not alleged
that the provider defendants' liability had been "demonstrated," and the duty of the
primary insurer to pay or to reimburse Medicare did not arise until the tortfeasor's
liability has been "demonstrated" by judgment or other comparable means. Id. at 964
(relying on Glover v. Liggett Group, Inc., 459 F.3d 1304, 1309 (11th Cir. 2006)). The
district court in Triad relied on Judge Howard's conclusion in Catholic Health
Appellate Case: 06-4121 Page: 4 Date Filed: 12/20/2007 Entry ID: 3384704
6
An incomplete list of other district court cases dismissing Stalley's or
Brockovich's § 1395y(b)(3)(A) claims for lack of standing includes Stalley v. Orlando
Regional Healthcare Systems, Inc., No. 06-1824 (M.D. Fla. Jan. 22, 2007); Stalley v.
Methodist Healthcare, No. 06-2605 (W.D. Tenn. Dec. 22, 2006); Brockovich v. Loma
Linda University Medical Center, No. 06-0834 (C.D. Cal. Nov. 15, 2006); Brockovich
v. Healthplus Corp., No. 06-5660 (C.D. Cal. Nov. 15, 2006); Brockovich v. Scripps
Health, No. 06-1569 (S.D. Cal. Nov. 7, 2006). The defendants advise us that no court
has held that Stalley or Brockovich have standing to assert these claims.
-5-
Initiatives that § 1395y(b)(3)(A) is not a qui tam statute and that Stalley therefore
lacked standing to sue.6
The standard of review of a district court's decision under Fed. R. Civ. P.
12(b)(1) depends on whether the district court resolved a facial attack or a factual
attack on subject matter jurisdiction. Osborn v. United States, 918 F.2d 724, 729 n.
6 (8th Cir. 1990). If, as here, the district court addressed a deficiency in the pleadings,
our standard of review is the same standard we apply in Rule 12(b)(6) cases. Mattes
v. ABC Plastics, Inc., 323 F.3d 695, 697-98 (8th Cir. 2003). We accept as true all
factual allegations in the complaint, giving no effect to conclusory allegations of law.
Id. at 698. The plaintiff must assert facts that affirmatively and plausibly suggest that
the pleader has the right he claims (here, the right to jurisdiction), rather than facts that
are merely consistent with such a right. See Bell Atl. Corp. v. Twombly, 127 S. Ct.
1955, 1964-66 (2007).
The party invoking federal jurisdiction has the burden of establishing that he
has standing to assert the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). Standing consists of three elements: the plaintiff must have suffered an injury
in fact; there must be a causal connection between that injury and the conduct
complained of; and it must be likely that the injury would be redressed by a remedy
the court could order. Id. at 560-61. "At the pleading stage, general factual
allegations of injury resulting from the defendant's conduct may suffice, for on a
Appellate Case: 06-4121 Page: 5 Date Filed: 12/20/2007 Entry ID: 3384704
7
"Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se
ipso in hac parte sequitur, which means 'who pursues this action on our Lord the
King's behalf as well as his own.'" Vt. Agency of Nat. Res. v. United States ex rel.
Stevens, 529 U.S. 765, 768 n.1 (2000).
-6-
motion to dismiss we presume that general allegations embrace those specific facts
that are necessary to support the claim." Id. at 561 (internal quotation marks omitted).
Stalley does not contend that he himself has sustained any injury in fact.
Instead, he contends that the Medicare Secondary Payer statute is a qui tam7
statute.
A qui tam statute effectively assigns part of the government's interest to a relator so
that the relator has standing to assert an injury suffered by the government. See Vt.
Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 772-74 (2000).
("The [False Claims Act] can reasonably be regarded as effecting a partial assignment
of the Government's damages claim. . . . We conclude, therefore, that the United
States' injury in fact suffices to confer standing on respondent Stevens.") Qui tam
actions developed around the end of the thirteenth century as a way for individuals
who had suffered harm to avail themselves of the royal courts by pleading a harm to
the King as well as to themselves. Id. at 774-75. Well before American
independence, the action evolved into the modern form in which informers who had
not suffered harm personally, but who knew of harm done to the government, were
authorized by statute to sue the wrongdoer on the government's behalf and to retain
a portion of the damages awarded the government as a "bounty" or reward for
bringing the wrongdoing to light. Id. at 775-77. "There presently is no common-law
right to bring a qui tam action, which is strictly a creature of statute." United Seniors
Ass'n v. Philip Morris USA, 500 F.3d 19, 23 (1st Cir. 2007); accord United States ex
rel. Burnette v. Driving Hawk, 587 F.2d 23, 24 (8th Cir. 1978). The best known qui
tam statute today is the False Claims Act, 31 U.S.C. §§ 3729-3732, which conferred
standing on the plaintiff in Vermont Agency of Natural Resources, 529 U.S. at 778.
Appellate Case: 06-4121 Page: 6 Date Filed: 12/20/2007 Entry ID: 3384704
-7-
The plain language of § 1395y(b)(3)(A) says, "There is established a private
cause of action for damages . . ." (emphasis added). A "private" right is different
from a public right, see Black's Law Dictionary, "Right" (8th ed. 2004) (private right
is defined as "A personal right, as opposed to a right of the public or the state."), and
qui tam cases exist to vindicate public rights. Thus, the Medicare Secondary Payer
statute purports to give a substantive right to individuals qua individuals, not as
private attorneys general or assignees of a public right. In contrast, the False Claims
Act qui tam provision authorizes a private person to bring a civil action "for the
person and for the United States Government. The action shall be brought in the name
of the Government." 31 U.S.C. § 3730(b). Moreover, the Medicare Secondary Payer
statute lacks any provisions giving the government the right to control the action, such
as the right to dismiss the action, the right to veto a dismissal or settlement, and the
right to review the complaint in camera before the relator serves the complaint on the
defendant. Again, in contrast, the False Claims Act has extensive provisions giving
the government these rights and more. See 31 U.S.C. § 3730. The absence of
procedural safeguards giving the executive branch control over the prosecution of the
action and the proceeds is powerful evidence that Congress did not mean §
1395y(b)(3)(A) to function as a qui tam statute. See United Seniors Ass'n, 500 F.3d
at 24-25 (affirming dismissal for lack of standing of Medicare Secondary Payer
private action by plaintiff who had no personal injury); In re Guidant Corp.
Implantable Defibrillators Prods. Liability Lit., 484 F. Supp. 2d 973, 980-81 (D. Minn.
2007) (dismissing Medicare Secondary Payer private action for lack of standing),
reconsidered on different grounds, 2007 WL 2028137 (D. Minn. May 9, 2007).
Stalley relies on a statement in Mason v. American Tobacco Co., 212 F. Supp.
2d 88, 94 (E.D.N.Y. 2002), aff'd, 346 F. 3d 36 (2d Cir. 2003), that the private right of
action provided by § 1395y(b)(3)(A) is "similar to a qui tam action where anyone can
bring a claim on behalf of the United States government and receive a bounty." See
also Manning v. Utils. Mut. Ins. Co., 254 F.3d 387, 394 (2d Cir. 2001) (referring to
the Medicare Secondary Payer statute as creating "private attorneys general"). The
Appellate Case: 06-4121 Page: 7 Date Filed: 12/20/2007 Entry ID: 3384704
-8-
aspects of the Medicare Secondary Payer statute that are similar to a qui tam provision
are that (1) it is based on the informer principle, in which the government relies on
private persons with superior knowledge to discover the government's claim; (2) it
increases the damages payable in order to motivate a private party to take action; and
(3) the government expects to recoup part of the private party's recovery. In Manning,
the Second Circuit relied on these kinds of similarities to conclude that the False
Claims Act provided the most analogous statute of limitations to apply to §
1395y(b)(3)(A) claims. 254 F.3d at 394.
Even though the private right of action under § 1395y(b)(3)(A) shares these
characteristics of a qui tam statute, it may not be a qui tam statute if Congress intended
the plaintiff to act as a private plaintiff, asserting his own injury, rather than as a
relator, asserting the government's injury. Despite language in some circuit-level
decisions indicating that the private plaintiff can assert the government's rights under
§ 1395y(b)(3)(A), Glover v. Liggett Group, Inc., 459 F.3d 1304, 1307 (11th Cir.
2006) ("The MSP also creates a private right of action with double recovery to
encourage private parties who are aware of non-payment by primary plans to bring
actions to enforce Medicare's rights.") (emphasis added); Manning, 254 F.3d at 394
(stating that Medicare Secondary Payer statute allows individual citizens "to sue in
order to right an economic wrong done to the government"), we conclude that the
statute actually allows a private plaintiff to assert his own rights, not those of the
government. See Frazer v. CNA Ins. Co., 374 F. Supp. 2d 1067, 1083 (N.D. Ala.
2005) ("[T]he MSPA does not create a cause of action which would permit a nonMedicare eligible worker's compensation claimant to bring such an action . . .").
Stalley argues that the statute cannot be read to contemplate that only a private
party who was actually injured can assert the private right of action. Stalley argues
that such a reading is impossible because no private plaintiff would ever have an
injury which would both (1) be a cognizable injury for which the plaintiff could
recover and (2) lead to a recovery which the government could recoup. Thus, Stalley
Appellate Case: 06-4121 Page: 8 Date Filed: 12/20/2007 Entry ID: 3384704
-9-
says that the only way the "private right of action" can help the government recoup
money from primary payers is if it functions as a qui tam statute empowering a private
person to assert the government's rights, rather than his own rights. Therefore,
according to Stalley, a volunteer like himself, who has no relationship with the
primary payer and has suffered no injury, can sue under the private right of action and
recover double damages for the injury to the government. Catholic Health Initiatives'
brief declines to identify a case in which the private right of action would be
enforceable by an individual and lead to recoupment of Medicare expenses by the
government; Catholic Health Initiatives tells us that we "need not even delve into this
sort of speculation about the MSP statute's possible uses," but if there were truly no
way that the private right of action would ever have any effect under Catholic Health
Initiatives' interpretation, that would be a powerful argument that such an
interpretation was wrong. To understand whether Stalley's argument is correct, we
have to determine how the Medicare Secondary Payer statute as a whole was meant
to work and how the private right of action fits within that framework.
Medicare is a federal program that provides health insurance for the elderly, the
disabled, and renal patients. Blue Cross & Blue Shield of Tex., Inc. v . Shalala, 995
F.2d 70, 71 (5th Cir. 1993). In order to control the cost of Medicare, in 1980
Congress passed the Medicare Secondary Payer statute, 42 U.S.C. § 1395y(b), which
provides generally that Medicare insurance is secondary to employer-provided group
health insurance covering Medicare beneficiaries and that Medicare will not be liable
for expenses which the private insurer ought to pay. See 1395y(b)(2). The statute
provides that the private insurers cannot draw their policies to make an end run around
the statute by excluding expenses that would be covered by Medicare if the person did
not have group health insurance. § 1395y(b)(1). In addition to expenses covered by
group health insurance, the statute also disclaims liability for expenses that should be
paid under a workmen's compensation plan or under an automobile, liability, or no
fault insurance policy, including a self-insurance plan. § 1395y(b)(2)(A). See
generally Harvey L. McCormick, Medicare and Medicaid Claims and Procedures §
Appellate Case: 06-4121 Page: 9 Date Filed: 12/20/2007 Entry ID: 3384704
-10-
1:67 (Aug. 2007). Even though Medicare is not ultimately liable for these excluded
expenses, the statute permits Medicare to pay those expenses up front, conditionally,
and to require the liable insurer or other primary payer to reimburse Medicare for the
moneys advanced. § 1395y(b)(2)(B)(i). The statute authorizes the government to sue
any primary payer that has failed to reimburse Medicare for such conditional
payments, and to collect double damages in such a suit. § 1395y(b)(2)(B)(iii). The
government can also sue anyone that received payment from the primary payer with
respect to expenses covered under Medicare, including the beneficiary himself, should
he collect the payment but fail to reimburse the government. Id.; 42 C.F.R. §
411.24(g) (government has right of action against beneficiary that has received
primary payment); United States v. Sosnowski, 822 F. Supp. 570, 574 (W. D. Wis.
1993) (granting government recovery from beneficiary from settlement with primary
payer). The statute provides that the United States is subrogated to the rights of the
Medicare beneficiaries against their insurer, to the extent of Medicare payments the
government has made for the beneficiaries' expenses. § 1395y(b)(2)(B)(iv).
Congress added a private right of action to the Medicare Secondary Payer
statute in 1986. Pub. L. No. 99-509, § 9319, 100 Stat. 1874 (1986) (codified as
amended at 42 U.S.C. § 1395y(b)(3)(A)). Section 1395y(b)(3)(A) grants the
Medicare beneficiary a private right of action for double damages against an insurer
or other primary payer that fails to pay the amounts it owes on the insured's behalf.
The parties do not point us to any legislative history explaining the purpose of the
private right of action, nor have we found any legislative history directly explaining
how the private right was meant to work. See H.R. Conf. Rpt. No. 99-1012, at 321
(1986), reprinted in 1986 U.S.C.C.A.N. 3868, 3966 (merely stating that the private
right of action is "to enforce the provision for the aged"); S. Rpt. No. 99-348, at 140
(1986) (stating that obligation of primary payers "would be enforceable by private
action or by the Federal Government"). Courts considering the provision have
generally agreed that the apparent purpose of the statute is to help the government
recover conditional payments from insurers or other primary payers. See, e.g., United
Appellate Case: 06-4121 Page: 10 Date Filed: 12/20/2007 Entry ID: 3384704
-11-
Seniors, 500 F.3d at 21-22 ("To facilitate recovery of these conditional payments, the
MSP . . . (iii) creates a private cause of action with double recovery to encourage
private parties to bring actions to enforce Medicare's rights.") (citation omitted);
Manning, 254 F.3d at 396-97 & n. 8 ("The history of the MSP legislation is consistent
with our view that the private right of action was created to save money for the
Medicare system."); Frazer, 374 F. Supp. 2d at 1077 ("The legislation's incentive to
bring a private lawsuit is clearly based in turn upon the subrogation right of the
government to obtain a portion of the recovery. The recovery of costs by Medicare
is the primary purpose of the MSP."); see also Harris Corp. v. Humana Health Ins.
Co., 253 F.3d 598, 606 (11th Cir. 2001) (per curiam) ("A private cause of action for
double damages . . . serves Congress' interest in the fiscal integrity of the Medicare
program by deterring private insurers primary to Medicare under the statute from
attempting to lay medical costs at the government's doorstep."). This is consistent
with inclusion of the provision in The Omnibus Budget Reconciliation Act of 1986,
which was intended to reduce government spending. See Statement by President of
the United States, 22 Weekly Compilation of Presidential Documents 1421 (Oct. 27,
1986), reprinted in 1986 U.S.C.C.A.N. 4073-74. Additionally, as the Second Circuit
pointed out in Manning, 254 F.3d at 397 n.8, when Senator David Durenburger
introduced the President's Medicare proposals for 1986, which included the private
right of action, he referred to the proposals as "health care cost reduction proposals."
132 Cong. Rec. 21935 (Aug. 15, 1986).
The thinking behind the statute is apparently that (1) the beneficiary can be
expected to be more aware than the government of whether other entities may be
responsible to pay his expenses; (2) without the double damages, the beneficiary
might not be motivated to take arms against a recalcitrant insurer because Medicare
may have already paid the expenses and the beneficiary would have nothing to gain
by pursuing the primary payer; and (3) with the private right of action and the double
damages, the beneficiary can pay back the government for its outlay and still have
money left over to reward him for his efforts.
Appellate Case: 06-4121 Page: 11 Date Filed: 12/20/2007 Entry ID: 3384704
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Stalley contends that the statute has to be a qui tam statute because under the
payment procedures outlined by the statute, Medicare will pay the beneficiary's
expenses when the primary insurer fails to pay, and as a result, the Medicare
beneficiary will not have been injured by the primary payer's failure to pay and cannot
recover anything in his own right. Stalley argues that if the Medicare beneficiary has
not been injured, Congress must have intended the private right of action to allow the
private plaintiff to sue on behalf of the government, the only injured party. Under
Stalley's reasoning, the private right of action is merely an assignment of the
government's public right.
We reject the assertion that a Medicare beneficiary could never have an injury
of his or her own to vindicate by means of the private right of action. There are two
scenarios in which a private plaintiff conceivably could bring suit under the Medicare
Secondary Payer statute: either the insurer failed to pay and the government has not
paid, or else the insurer failed to pay and the government did pay. In the first case, the
plaintiff was obviously injured by the insurer's failure to pay, but the government has
not yet paid any money. This would not appear to be the factual situation which the
statute was created to remedy, because in this case, the government would have
nothing to recover and therefore would not benefit from the services of the
informer/plaintiff. If the first situation were the only one in which the beneficiary
could sue, the private right of action would not save the government money.
Moreover, in this first factual situation, there would be no need for the double
damages incentive; if the government had not paid the expenses, the beneficiary
would have an incentive to sue the primary payer even without double damages, to
avoid having to pay the expenses him or herself.
In the second case, in which the primary payer failed to pay and the government
has paid the expense, has the Medicare beneficiary been injured by the primary payer's
failure to pay something the government paid anyway? Triad Hospitals and related
defendants argue that a beneficiary whose primary payer refused to pay would have
Appellate Case: 06-4121 Page: 12 Date Filed: 12/20/2007 Entry ID: 3384704
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damages even if Medicare paid the beneficiary's expenses because the beneficiary
would have to pay Medicare co-payments and deductibles. But as Stalley points out,
if those were the beneficiary's only damages, the beneficiary could only recover those
amounts, not the amount that Medicare paid on its behalf. The co-payments and the
deductible would be costs that are not covered by Medicare, so Medicare would not
be entitled to recover those costs from the beneficiary. Thus, Stalley argues, if the
Medicare beneficiary can only recover expenses not paid by Medicare, the private
right of action would not help the government recoup anything and it would be
completely ineffectual as an aid to Medicare's recovery efforts; this compels the
conclusion, he says, that the private plaintiff must be able to assert the government's
rights directly, because there is no way the plaintiff's assertion of its own rights would
help the government collect any money.
We conclude that Stalley's reasoning is flawed. Congress must have intended
that a Medicare beneficiary could sue its primary insurer for expenses Medicare had
already paid. There was authority extant in several states when Congress enacted the
private right of action in 1986 that a Medicare beneficiary could sue his private insurer
and recover his expenses incurred, even if those expenses had already been paid by
Medicare. See Holmes v. Cal. State Auto. Ass'n, 185 Cal. Rptr. 521, 524 (Cal. Ct.
App. 1982); Black v. Am. Bankers Ins. Co., 478 S.W.2d 434 (Tex. 1972); Niles v.
Am. Bankers Ins. Co., 229 So.2d 435 (La. Ct. App. 1969). To be sure, there was also
authority reaching the opposite conclusion, e.g., Steffen v. Pac. Mut. Life Ins. Co., 442
S.W.2d 142, 144-45 (Mo. Ct. App. 1969) (policy was "not a policy of insurance in the
usual sense but one of indemnity," meaning that insurer only agreed to reimburse
insured for amounts insured was actually required to pay), but Congress could
rationally have expected beneficiaries to be able to recover from their primary payers
even if Medicare has made a conditional payment. Moreover, some courts have
interpreted the § 1395y(b)(3)(A) private right of action to authorize a Medicare
beneficiary's recovery of expenses that have already been paid conditionally by
Medicare. Manning v. Util. Mut. Ins. Co., 254 F.3d 387, 391-92 (2d Cir. 2001) ("To
Appellate Case: 06-4121 Page: 13 Date Filed: 12/20/2007 Entry ID: 3384704
-14-
encourage compliance with [the primary payment] requirements, Congress has
authorized a private cause of action and double damages against entities designated
as primary payers that fail to pay for medical costs for which they were responsible,
which are borne in fact by Medicare."); O'Connor v. Mayor & City of Baltimore, 494
F. Supp. 2d 372, 374 (D. Md. 2007) (plaintiff had standing under § 1395y(b)(3)(A)
because he averred that he had suffered injury for which City owed but failed to pay
worker's compensation and Medicare had been forced to pay his expenses); Collins
v. Allstate Indem. Co., 626 A.2d 1162, 1166-67 (Pa. Super. Ct. 1993) (Medicare
beneficiary had standing because "the plaintiffs allege a contractual right to the
benefits owed, regardless of any independent claim to those benefits asserted by the
United States."), aff'd, 660 A.2d 50 (Pa. 1995). The idea that Congress expected the
beneficiary to be able to sue to vindicate his or her own contractual and tort interests
is bolstered by the fact that the beneficiary's expenses will have only been paid
"conditionally" by Medicare, § 1395y(b)(2)(B)(i), which leaves the beneficiary with
less than a final settlement of his or her liability to the health-care providers.
On the other hand, the Third Circuit in Wheeler v. Travelers Ins. Co., 22 F.3d
534, 538-39 (3d Cir. 1994), dismissed for lack of standing a Medicare beneficiary's
suit against her primary insurer because her expenses had been paid by Medicare.
Similarly, in In re Guidant Corp., 484 F. Supp. 2d at 979-80, the plaintiff was a
Medicare beneficiary allegedly harmed by the defendant's tort; she sued under §
1395y(b)(3)(A), but she conceded that she had no injury in fact from the alleged
tortfeasor's failure to pay for her medical treatment because Medicare in fact paid for
the treatment. The court dismissed her claim against the alleged tortfeasor for lack of
standing because the Medicare beneficary was not injured in light of the fact that her
expenses were paid. Id. at 980-81. Wheeler was distinguished in Brooks v. Blue
Cross & Blue Shield, No. 95-405, reproduced as appendix at 116 F.3d 1365, 1377
(S.D. Fla. 1995), aff'd on other grounds, 116 F.3d 1364 (11th Cir. 1997), because
Wheeler was brought under state insurance laws and not under the Medicare
Secondary Payer statute.
Appellate Case: 06-4121 Page: 14 Date Filed: 12/20/2007 Entry ID: 3384704
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Our study of the Medicare Secondary Payer statute convinces us that Congress
contemplated that Medicare beneficiaries could recover double damages to vindicate
their private rights when their primary payers fail to live up to their obligations, even
if Medicare has made a conditional payment of the beneficiaries' expenses. Therefore,
there is no need to read the statute as permitting a plaintiff to assert the public's rights
in contravention of the plain language creating a private right of action. Accordingly,
we reject Stalley's argument that Congress created the private right of action to permit
private persons to assert the government's rights, rather than their own, for we
conclude that Congress rationally could have intended § 1395y(b)(3)(A) to provide
Medicare beneficiaries a cause of action against their defaulting primary payers, with
the anticipation that a portion of the beneficiary's recovery would be paid to reimburse
Medicare.
With the demise of his principal argument, Stalley's case quickly crumbles.
Stalley relies on the regulations that require a beneficiary whose expenses have been
paid by Medicare and who then receives a payment from a primary payer to reimburse
Medicare. 42 C.F.R. §§ 411.20 & 411.37. He contends that these regulations indicate
the statute is a qui tam statute since they show that the proceeds will be split between
the plaintiff and the government. Far from showing that the proceeds result from the
plaintiff asserting the government's rights, the regulations are consistent with the idea
that the Medicare beneficiary asserts his or her rights against the primary payer and
the government then asserts its own rights against the beneficiary, see §
1395y(b)(2)(B)(iii).
In sum, the private right of action provided by 42 U.S.C. § 1395y(b)(3)(A) is
not a qui tam statute, and Stalley, who is a volunteer and who lacks any injury in fact,
does not have standing to pursue such an action.
Stalley contends that the district court should have allowed him to replead, but
in view of the fact that he has not indicated any amendment he could make that would
Appellate Case: 06-4121 Page: 15 Date Filed: 12/20/2007 Entry ID: 3384704
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cure the defect in his complaint, the district court correctly denied permission to
replead as futile.
Stalley's motion to strike the Appellees' appendices in No. 06-4121 is denied.
We affirm the district courts' dismissal of the complaints.
______________________________
Appellate Case: 06-4121 Page: 16 Date Filed: 12/20/2007 Entry ID: 3384704 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-3_00-cr-00213/USCOURTS-azd-3_00-cr-00213-1/pdf.json | [
[
"Jonathan Bennett Kaytso",
"Defendant"
],
[
"United States of America",
"Plaintiff"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America, )
)
Plaintiff/Respondent, ) No. CR-00-0213-PCT-PGR
) No. CV-05-1171-PCT-PGR (MS)
vs. )
) ORDER and OPINION
Jonathan Bennett Kaytso, )
)
Defendant/Movant. ) )
Having reviewed de novo the Report and Recommendation issued by Magistrate
Judge Sitver in light of the defendant's Rebuttal of Magistrate's Report and
Recommendation (doc. #42), the Court finds that the defendant's objections should be
overruled as legally meritless and that the Magistrate Judge's recommendation should
be affirmed.
First, the Magistrate Judge correctly concluded that the defendant's § 2255
motion, which was filed some 41⁄2 years after the defendant's judgment of conviction
was entered based upon his guilty plea, is time-barred. Pursuant to the Antiterrorism
and Effective Death Penalty Act, in most cases, including this one, the one-year statute
of limitations under § 2255 begins to run on "the date on which the judgment of
conviction becomes final." 28 U.S.C. § 2255(1); United States v. Schwartz, 274 F.3d
1220, 1223 (9th Cir. 2001). This means that the limitations period here began to run
upon the expiration of the time during which the defendant could have sought review by
Case 3:00-cr-00213-PGR Document 43 Filed 12/06/05 Page 1 of 3
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direct appeal. Schwartz, 274 F.3d at 1223. Because the defendant did not file a direct
appeal, the limitations period expired years before the defendant filed his § 2255
motion.
Second, although the limitations period may be equitably tolled if extraordinary
circumstances beyond the prisoner's control make it impossible to file a habeas petition
on time and the extraordinary circumstances were the cause of the untimeliness, Laws
v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003), the Magistrate Judge correctly
concluded that equitable tolling cannot be applied here to rectify the defendant's
untimely filing of his § 2255 motion. While a prisoner's mental incompetency during the
limitations period can justify the tolling of the AEDPA's statute of limitations if it is the
cause of the prisoner's failure to meet the filing deadline, id. at 923, the defendant's
contention that he suffers from diminished mental capacity involving memory loss and a
memory disorder as a result of past head traumas from six automobile accidents is
insufficient to invoke equitable tolling because (1) it is totally conclusory and
unsupported by the record, and (2) the defendant does not allege that his alleged
impairment was the "but-for" cause of his untimeliness.
Third, the Magistrate Judge correctly determined that even if the defendant's
§ 2255 motion can be deemed to have been timely filed, the only claim raised in his
motion, which is that the Double Jeopardy Clause of the Fifth Amendment precluded the
United States from prosecuting the defendant for assault in federal court because the
tribal court had prosecuted him for the same charge, is meritless as a matter of law due
to the "dual sovereignty" exception to the Double Jeopardy Clause. The Supreme Court
has expressly determined that the Double Jeopardy Clause does not prohibit the United
States from prosecuting a defendant for a discrete federal offense notwith-standing a
tribal prosecution inasmuch as the source of the tribe's prosecutorial power is inherent
tribal sovereignty and not delegated federal power. United States v. Lara, 541 U.S.
193, 124 S.Ct. 1628 (2004); accord, United States v. Enas, 255 F.3d 662, 667 (9th Cir.
2001)(en banc), cert. denied, 534 U.S. 1115 (2002) ("When a tribe exercises inherent
Case 3:00-cr-00213-PGR Document 43 Filed 12/06/05 Page 2 of 3
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1
Furthermore, the defendant, by waiving in his plea agreement "any right ... to
collaterally attack any matter pertaining to this prosecution and sentence[,]" waived his right to
assert his double jeopardy claim. United States v. Petty, 80 F.3d 1384, 1387 (9th Cir. 1996).
- 3 -
power, it flexes its own sovereign muscle, and the dual sovereignty exception to double
jeopardy permits federal and tribal prosecutions for the same crime.")1
Fourth, to the extent that the defendant is attempting to impliedly amend his
§ 2255 motion by raising for the first time in his reply to his § 2255 motion, filed on July
21, 2005, and supplemented in his objections to the Report and Recommendation, the
new argument that his guilty plea was not voluntary because he did not fully understand
what he was pleading to due to his mental incapacity, he may not do so. See United
States v. Thomas, 221 F.3d 430, 436 (3rd Cir. 2000) (Court noted that "a party cannot
amend a § 2255 petition to add a completely new claim after the statute of limitations
has expired.") Therefore,
IT IS ORDERED that the Magistrate Judge's Report and Recommendation (doc.
#41) is accepted and adopted by the Court.
IT IS FURTHER ORDERED that the defendant's Motion to Vacate, Set Aside or
Correct his Sentence Based on the Petitioner's Claim of Double Jeopardy Violation
(doc. #34), filed pursuant to 28 U.S.C. § 2255, is denied in its entirety. The Clerk of the
Court shall enter judgment accordingly.
DATED this 5th day of December, 2005.
Case 3:00-cr-00213-PGR Document 43 Filed 12/06/05 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-01975/USCOURTS-caed-2_15-cv-01975-0/pdf.json | [
[
"Robert J. Richard",
"Defendant"
],
[
"Maria Jose Rincon Mancheno",
"Plaintiff"
]
] | 1 JOHN N. DROOYAN, ESQ./SBN 238609
LAW OFFICE OF JOHN DROOYAN
2 259 West 7"Street
San Pedro, CA 90731
3 Telephone: (310)309-9430
Facsimile: (310)359-0245
4 [email protected]
5 Attorney for Plaintiff
Maria Jose Rincon Mancheno
6
7 Joedy P. DeFrank, ESQ. /SBN 105102
2386 Fair Oaks Blvd., Ste. 202
8 Sacramento, CA 95825
Telephone: (916)640-8612
9 Facsimile: (916)640-8613
[email protected]
10
Attorney for Defendant
11 Robert J. Richard
12
UNITED STATES DISTRICT COURT
13
EASTERN DISTRICT OF CALIFORNIA
14
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MARIA JOSE RINCON MANCHENO, )
16 an Individual, )
)
17 )
)
18 )
)
19 Plaintiff, )
vs. )
20 )
)
21 ROBERT J. RICHARD, an )
Individual )
)
)
23 )
)
M )
)
Case No. 2:15-CV-01975-KJM-GGH
STIPULATED JUDGMENT
25 Defendant. )
26
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28 STIPULATED JUDGMENT
Case 2:15-cv-01975-GGH Document 33 Filed 10/12/16 Page 1 of 5
TO THE COURT AND ALL PARTIES:
2 Pursuant to the terms agreed to at the settlement conference
3 with Judge Gregory G. Hollows, conducted on June 9, 2016, by
4 Plaintiff MARIA JOSE RINCON MANCHENO, Hho appeared by telephone,
5 and Defendant Robert J. Richard, who personally appeared at the
6settlement conference; the terms of which were approved by
7 Plaintiff's counsel John N. Drooyan, and Defendant's counsel
8 Joedy DeFrank, both of whom appeared at the Settlement
9Conference, the parties submit the following STIPULATED JUDGMENT:
10 (i) Pursuant to parties 5075 days of marriage until
11 separation, and Defendant ROBERT RICHARD's 9318 days of service
12 in the United States Air Force, Plaintiff MARIA RINCON MANCHENO
13 has a .2723 community property interest in Defendant ROBERT
14 RICHARD's military retirement pay.
15 (ii) Defendant RICHARD currently receives monthly pension
16 payments in the gross amount of $2,882.00; of which $784.76 are
17 owed to Plaintiff MANCHENO. Defendant RICHARD will hereafter
18 make monthly payments, currently in the amount of $784.76, to
19 Plaintiff MANCHENO for her community property interest in
20 Defendant RICHARD's military retirement pay. Payment is due the
21 first of each month beginning with August 1, 2016.
22 (iii) The parties will cooperate in order for Defendant
23 RICHARD to submit the proper paperwork to the Defense Accounting
24 and Finance Service ("DFAS") to process and make monthly
25 payments directly to Plaintiff MANCHENO for Plaintiff's community
26 property share of Defendant RICHARD's military retirement pay.
27
28 STIPULATED JUDGMENT
Case 2:15-cv-01975-GGH Document 33 Filed 10/12/16 Page 2 of 5
1 (iv) Until such time as the DFAS begins making monthly
2payments directly to Plaintiff MANCHENO for Plaintiff's community
3 property share of Defendant RICHARD's military retirement pay,
4 Defendant RICHARD will make payments to Plaintiff which are to be
5 deposited into the parties' Navy Federal Credit Joint Account
6 #7003814527 with routing #250-7497-4; beginning with $784.76 on
7 or before August 1, 2016; and due the first of each month
8 thereafter. While Plaintiff MANCHENO awaits the processing of
9 her own card for the aforementioned joint account, Plaintiff
10 MANCHENO will be using Defendant RICHARD's card to access her
11 monthly share of Defendant RICHARD's military retirement pay. At
12 the beginning of each new year Defendant RICHARD will inform
13 Plaintiff MANCHENO of the amount Defendant RICHARD's monthly
14 retirement pay, which increases each year, for the current year.
15 (v) In the event that the DFAS and Defendant RICHARD both
16 make a payment or payments for the same time period, and are
17 duplicate payments,Plaintiff MANCHENO will refund the
18 duplicated payment or payments.
19 (vi) Beginning August 1, 2016, Defendant RICHARD will make
20 monthly payments of $500 to Plaintiff's counsel John Drooyan (for
21 attorney's fee and costs), located at 259 West 7'" Street, San
22 Pedro, California 90731; which shall be due on the first of every
23 month, and shall continue for two years with the last payment due
24 July 1, 2018.
25 (vii) Beginning August 1, 2018, Defendant RICHARD will make
26 monthly payments of $300 to Plaintiff MARIA MANCHENO (for money
27
28 STIPULATED JUDGMENT
Case 2:15-cv-01975-GGH Document 33 Filed 10/12/16 Page 3 of 5
1 owed Plaintiff from Defendant's past military retirement pay) in
2 addition to Defendant's monthly payment of Plaintiff's .2723
3 community property interest in Plaintiff's military retirement
4 pay, to be deposited to the parties' Navy Federal Credit Joint
5 Account #7003814527 with routing #250-7497-4; which shall be
6 due on the first of every month, and shall continue for five
7 years with the last final payment due July 1, 2023.
8 (viii) The Court will retain jurisdiction until Defendant
9 RICHARD makes the final monthly payment of $300, due on July l,
10 2023.
11
12 Dated: September , 2016 /s/
Maria Jose Rincon Mancheno
13
1
15 Dated: September , 2016 LAW OFFICE OF JOHN DROOYAN
16
17 /s/
John N. Drooyan
18 Attorney For Plaintiff
Maria Jose Rincon Mancheno
19
20 Date: September , 2016 /s/
Robert J. Richard
21
22 Date: September, 2016 JOEDY DEFRANK
23
24 /s/
Joedy P. DeFrank
25 Attorney for Defendant
26 Robert J. Richard
(continued to the next page)
Case 2:15-cv-01975-GGH Document 33 Filed 10/12/16 Page 4 of 5
IT IS SO ORDERED AND THE Clerk shall close this case.
Dated: October 12, 2016
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
27
28 STIPULATED JUDGMENT
Case 2:15-cv-01975-GGH Document 33 Filed 10/12/16 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-3_09-cv-00905/USCOURTS-almd-3_09-cv-00905-0/pdf.json | [
[
"Terry Scott",
"Defendant"
],
[
"Donna W. Tucker",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
DONNA W. TUCKER )
)
PLAINTIFF, )
v. ) CIVIL ACTION NO. 3:09-cv-905-MEF
)
TERRY SCOTT, ) (WO)
)
DEFENDANT. )
ORDER
By its Order (Doc. # 7) dated October 28, 2009, the Court reminded the parties of the
obligation, imposed by Rule 26(f) of the Federal Rules of Civil Procedure, to confer and to
develop a proposed discovery plan and directed to file the Report of Parties’ Planning
Meeting described in Rule 26(f) as soon as practicable but not later than November 30, 2009.
As of the date of this Order, the Court has not received the Report of Parties’ Planning. The
parties are hereby ORDERED to file a proper Report of Parties’ Planning Meeting as
previously ordered no later than December 7, 2009. The parties are admonished that
failure to comply with this Order could result in the imposition of appropriate
sanctions.
In preparing the Report of Parties’ Planning Meeting, the parties are advised that the
longstanding practice in this district is that dispositive motions shall be filed no later than 90
days prior to the pretrial date. If the parties seek to vary from that schedule, they should
present, in the plan, specific case related reasons for the requested variance.
Case 3:09-cv-00905-MEF-CSC Document 12 Filed 12/02/09 Page 1 of 2
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This case will be set for trial before the undersigned judge during one of that judge's
regularly scheduled civil trial terms. The pretrial date is normally set within four to six
weeks of a scheduled trial term. The dates of each judge's civil trial terms are available on
the court's website located at http://almd.uscourts.gov in the civil case information section.
This court may or may not hold a scheduling conference before issuing a scheduling
order. If the court holds a scheduling conference, counsel may participate in the scheduling
conference by conference call.
The scheduling order entered by the court will follow the form of the Uniform
Scheduling Order adopted by the judges of this court. The Uniform Scheduling Order is also
available on the court's website.
The report of the parties should comply with Form 52 of the Appendix of Forms to
the Federal Rules of Civil Procedure.
DONE this 2nd day of December, 2009.
/s/ Mark E. Fuller
CHIEF UNITED STATES DISTRICT JUDGE
Case 3:09-cv-00905-MEF-CSC Document 12 Filed 12/02/09 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-02716/USCOURTS-caed-2_15-cv-02716-0/pdf.json | [
[
"John Doe subscriber assigned IP address 99.51.1.152",
"Defendant"
],
[
"Malibu Media, LLC",
"Plaintiff"
]
] | 1
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11 MALIBU MEDIA, LLC,
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Sacramento
Case Number: 2:15-cv-02716-TLN-CKD
12
13 vs.
Plaintiff, ORDER ON EX-PARTE MOTION FOR
LEAVE TO SERVE THIRD PARTY
SUBPOENA PRIOR TO A RULE 26(f)
CONFERENCE
14 JOHN DOE subscriber assigned IP address
99.51.1.152,
15
Defendant.
16
17 THIS CAUSE came before the Court upon Plaintiff’s Motion for Leave to Serve a
18 Third Party Subpoena Prior to a Rule 26(f) Conference (the “Motion”), and the Court being
19 duly advised in the premises does hereby:
20 FIND, ORDER AND ADJUDGE:
21 1. Plaintiff established that “good cause” exists for it to serve a third party
22 subpoena on AT&T Internet Services (hereinafter the “ISP”). See UMG Recording, Inc. v.
23 Doe, 2008 WL 4104214, *4 (N.D. Cal. 2008); and Arista Records LLC v. Does 1-19, 551 F.
24 Supp. 2d 1, 6-7 (D.D.C. 2008).
25 2. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP to
26 provide Plaintiff with the true name and address of the Defendant to whom the ISP assigned an
27 1
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Order On Ex-Parte Motion for Leave to Serve Third Party Subpoena Prior to a Rule 26(f)
Conference
Case No. 2:15-cv-02716-TLN-CKD
Case 2:15-cv-02716-TLN-CKD Document 5 Filed 03/03/16 Page 1 of 2
1 IP address as set forth on Exhibit A to the Complaint. Plaintiff shall attach to any such
2 subpoena a copy of this Order.
3 3. Plaintiff may also serve a Rule 45 subpoena in the same manner as above on any
4 service provider that is identified in response to a subpoena as a provider of Internet services to
5 one of the Defendants.
6 4. If the ISP qualifies as a “cable operator,” as defined by 47 U.S.C. § 522(5),
7 which states:
8 the term “cable operator” means any person or group of persons
9 (A) who provides cable service over a cable system and directly or through one
10 or more affiliates owns a significant interest in such cable system, or
11 (B) who otherwise controls or is responsible for, through any arrangement, the
12 management and operation of such a cable system.
13 it shall comply with 47 U.S.C. § 551(c)(2)(B), which states:
14 A cable operator may disclose such [personal identifying] information if the
15 disclosure is . . . made pursuant to a court order authorizing such disclosure, if
16 the subscriber is notified of such order by the person to whom the order is
17 directed.
18 by sending a copy of this Order to the Defendant.
19 5. Plaintiff may only use the information disclosed in response to a Rule 45
20 subpoena served on the ISP for the purpose of protecting and enforcing Plaintiff’s rights as set
21 forth in its Complaint.
22 IT IS SO ORDERED
23
24 Dated: March 2, 2016
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27 2
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Case No. 2:15-cv-02716-TLN-CKD
Case 2:15-cv-02716-TLN-CKD Document 5 Filed 03/03/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-01177/USCOURTS-caed-2_16-cv-01177-0/pdf.json | [
[
"Cindy D. Lather",
"Defendant"
],
[
"Mayberry at Town and Country",
"Plaintiff"
],
[
"Vertus Properties, Inc.",
"Plaintiff"
]
] | 1
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1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
VERTUS PROPERTIES, INC. FOR
MAYBERRY AT TOWN AND
COUNTRY,
Plaintiff,
v.
CINDY D. LATHER
Defendant.
No. 2:16-cv-1177 TLN EFB
ORDER REMANDING CASE
This matter is before the Court pursuant to Defendant’s Notice of Removal. (ECF No. 1.)
For the reasons set forth below, the Court hereby remands the action to the Superior Court of
California, County of Sacramento, due to lack of subject matter jurisdiction.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 15, 2016, Plaintiff Vertus Properties Incorporated (“Plaintiff”) filed an unlawful
detainer action in the Sacramento County Superior Court of California. (Not. of Removal, ECF
No. 1.) On May 31, 2016, Defendant Cindy Lather (“Defendant”) filed a Notice of Removal in
the United States District Court, Eastern District of California. (ECF No. 1.) Defendant asserts
Case 2:16-cv-01177-TLN-EFB Document 3 Filed 06/03/16 Page 1 of 3
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that removal is proper because “Federal question exists because Defendant's Answer, a pleading
depend on the determination of Defendant's rights and Plaintiffs duties under federal law.” (ECF
No. 1 at 2, ¶ 10.) For the reasons stated below, this Court finds that subject matter jurisdiction
does not exist and thus this case must be remanded.
II. STANDARD OF LAW
28 U.S.C. § 1441 permits the removal to federal court of any civil action over which “the
district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “Removal is
proper only if the court could have exercised jurisdiction over the action had it originally been
filed in federal court.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
Courts “strictly construe the removal statute against removal jurisdiction,” and “the
defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992) (per curiam). Furthermore, “[i]f the district court at any time
determines that it lacks subject matter jurisdiction over the removed action, it must remedy the
improvident grant of removal by remanding the action to state court.” California ex rel. Lockyer
v. Dynegy, Inc., 375 F.3d 831, 838, as amended, 387 F.3d 966 (9th Cir. 2004), cert. denied 544
U.S. 974 (2005).
The “presence or absence of federal question jurisdiction is governed by the ‘well-pleaded
complaint rule,’ which provides that federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S. at 386.
Removal cannot be based on a defense, counterclaim, cross-claim, or third party claim raising a
federal question, whether filed in state court or federal court. See Vaden v. Discover Bank, 556
U.S. 49 (2009); Hunter v. Philip Morris USA, 582 F.3d 1039, 1042–43 (9th Cir. 2009).
III. ANALYSIS
Defendant removed this case to this Court on the basis of federal question jurisdiction.
Section 1441(a) states: “[e]xcept as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants, to the district court of the
United States for the district and division embracing the place where such action is pending.”
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Thus, for jurisdiction to exist under § 1441(a), a federal question must be presented on the face of
the plaintiff’s properly pleaded complaint. Caterpillar, 482 U.S. at 386. Here, Defendant is
claiming that her Answer implicates federal questions. This cannot confer original jurisdiction.
See Vaden v. Discover Bank, 556 U.S. 49 (2009) (holding that removal cannot be based on a
defense, counterclaim, cross-claim, or third party claim raising a federal question).
Thus, Defendant has failed to establish her burden of showing that jurisdiction before this
Court is proper. Therefore, it is appropriate to remand this case, sua sponte, for lack of federal
jurisdiction. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th
Cir. 2004) (“the district court ha[s] a duty to establish subject matter jurisdiction over the
removed action sua sponte, whether the parties raised the issue or not.”).
IV. CONCLUSION
For the foregoing reasons, the Court hereby remands this action to the Superior Court of
California, County of Sacramento. In removing this case, Defendant filed a motion to proceed in
forma pauperis. (See ECF No. 2.) The Court has reviewed these motions and finds that
Defendant meets the requirements of in forma pauperis status and thus grants Defendant’s
requests.
IT IS SO ORDERED.
Dated: June 2, 2016
Case 2:16-cv-01177-TLN-EFB Document 3 Filed 06/03/16 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_07-cv-06263/USCOURTS-cand-3_07-cv-06263-1/pdf.json | [
[
"Tony Hedgpeth",
"Respondent"
],
[
"Elnorris Stone",
"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
ELNORRIS STONE,
Petitioner,
v.
TONY HEDGPETH, Warden,
Respondent.
NO. C 07-6263 TEH (PR)
ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE
OF APPEALABILITY;
INSTRUCTIONS TO THE CLERK
I. INTRODUCTION
This is a petition for a writ of habeas corpus filed pro se by a state prisoner pursuant to
28 U.S.C. § 2254. An Alameda County jury convicted Petitioner of first degree murder and
found true the allegation that he was armed with a firearm in the commission of the offense.
He was sentenced to twenty-six years to life in state prison.
The conviction and sentence were affirmed on appeal by the Court of Appeal of
California, with a minor clarification of the restitution obligation. The Supreme Court of
California denied review. Petitioner’s state habeas petitions were denied.
On April 28, 2008, this Court dismissed the petition based on Petitioner’s
representation that he had not exhausted his claims in state court. Petitioner then filed a
motion seeking to stay the case pending the exhaustion of certain claims in state court, but
did not move to reopen the closed case. Shortly thereafter he filed a motion requesting
“directed nunc pro tunc” and filed an amended petition informing the Court that all of the
claims had now been exhausted. The Court construed Petitioner’s motion as a motion to
Case 3:07-cv-06263-TEH Document 27 Filed 01/12/10 Page 1 of 28
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For the Northern District of California
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1 Citations to “Ex.” are to exhibits in the record that respondent has lodged with the Court,
unless otherwise indicated.
2
reopen the case, granted it, and ordered respondent to show cause why the petition should not
be granted.
Respondent has filed an answer and memorandum of points and authorities in support
of it, and has lodged the record with the Court. Petitioner has filed a traverse and a motion
for an evidentiary hearing. For the reasons set out below, the motion for an evidentiary
hearing and the petition will be denied.
II. FACTS
Petitioner and Romeo Yarborough were jointly charged with first degree murder. Ex.
5 (opinion of California Court of Appeal) at 19.1
Yarborough moved to change his plea prior
to trial, so Petitioner was tried alone. Id. His first trial, in September of 2003, ended in a
mistrial when defense counsel’s wife died. Id. His second trial, which began in March of
2004, ended with his conviction. Id.
The California Court of Appeal’s opinion contains an unusually extensive and very
detailed description of the testimony at trial. Id. at 1-19. Summarizing, at the time of the
offense Petitioner was living in Sacramento, but he formerly was a drug dealer in Oakland,
and his friend Romeo Yarborough still was. Id. at 2. Petitioner’s family owned a duplex on
a block of 52nd Avenue between International Boulevard and Bancroft Avenue. Id. He
periodically returned to the neighborhood to visit his family and see Yarborough. Id. On
one of these visits, Petitioner and Yarborough became aware of Noble Gardiner, the victim,
standing on 52nd Avenue, and approached him. Id. at 3. Gardiner had a pistol in his hand.
Id. Yarborough, who knew Gardiner, introduced Petitioner; although Yarborough and
Gardiner were ostensibly friendly, both kept their guns out. Id. at 4-5. Yarborough had
earlier told Petitioner that Gardiner had shot a man named Leo Logwood, and bragged about
committed other shootings and murders. Id. at 4. The three adjourned to Gardiner’s
apartment to smoke marijuana. Id. at 5. The group broke up when Kenya Smith, Gardiner’s
girlfriend, came home. Id. at 6.
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After Yarborough and Petitioner left, Gardiner was unable to find his cigarette lighter
and said to Smith that he believed one of the other two men had taken it. Id. at 7. He went
out and encountered Yarborough and Petitioner, who were standing inside a gate at
Petitioner’s family’s residence. Id. The conversation was tense, and Petitioner believed
Gardiner was attempting to position himself to keep both other men covered, although
Gardiner was not showing a gun. Id. at 7-8. At some point Petitioner decided to “walk
away;” he walked around the side of the building, but became anxious about his friend
Yarborough being alone with Gardiner, took his gun out, and returned to where Yarborough
and the victim were. Id. at 8-9. There, Yarborough and Gardiner appeared to be in some sort
of close confrontation; Petitioner spun Gardiner around, and saw that Gardiner had a gun
concealed in his “beanie” cap in his left hand. Id. at 9. Yarborough grabbed Gardiner’s gun
hand and kept him from shooting Petitioner. Id. Petitioner hit Gardiner in the face with his
gun, then opened fire. Id.
Appellant's version of the ensuing struggle was that Gardiner broke free from
Yarborough, still holding his pistol in his left hand, and started to bring it to
bear on appellant. Appellant grabbed Gardiner's wrist, and fired off at least one
more shot while they were struggling, but soon after that, his gun jammed and
would not fire any more. Meanwhile, Gardiner, who had apparently been hit in
the left shoulder, grabbed appellant with his right hand while continuing to try
to break his left wrist free from appellant's grasp. The two men then struggled
together toward the front steps of the house, where appellant tripped slightly on
the steps, allowing Gardiner to break his pistol hand free. Gardiner then
stepped one foot back and tried to shoot appellant, who was still holding
Gardiner's other shoulder.
At that point, appellant testified, Yarborough started shooting Gardiner, firing
at least three times, and appellant was able to regain his grasp on Gardiner's
gun hand, though he could not get the gun away from him. Gardiner responded
by grasping appellant's shoulder with his other hand, and pulled him back down
the walkway to the street. [FN13. Photographs of the crime scene taken by the
police, and introduced by the prosecution at trial, showed a trail of blood
leading from the front steps, through the front gate, and across the sidewalk to
the car where the body was found.] After Gardiner pulled appellant out
through the gate, Gardiner fell down near a car that was parked in front of the
house, and nearly pulled appellant down with him. By that time, Yarborough
had followed the other two men out of the front yard and was standing very
close to appellant, but was not still shooting at Gardiner. Appellant was able to
break away from Gardiner by bracing himself on the car when Gardiner fell,
and he then took a step back, grabbed Yarborough's gun, and shot Gardiner
twice in the head with it.
Case 3:07-cv-06263-TEH Document 27 Filed 01/12/10 Page 3 of 28
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Appellant testified that during the entire duration of the struggle, and even after
it was over, he believed that Gardiner was about to kill him, and that he had to
kill Gardiner in self-defense in order to prevent that from happening. He
explained that the reason he fired the last two shots was that when he had
hesitated to shoot earlier during the struggle, it had almost cost him and
Yarborough their lives. He stressed that the bullet wounds Gardiner received
did not seem to affect him, and that even after Gardiner had been shot
repeatedly and had fallen down near the car, Gardiner was still moving and
trying unsuccessfully to get up, and appellant “figured that if he had movement
in him[,] he would shoot me.” [FN14. This testimony was consistent with that
of the prosecution's pathologist, who testified . . . that Gardiner was still alive
at the time each of the gunshot wounds was inflicted on him, and that only the
final shots to the back of Gardiner's head would have incapacitated him
completely. Appellant also introduced testimony from an expert on the use of
deadly force in self-defense, who confirmed that it would not be unusual for a
person to continue to struggle violently after receiving several bullet wounds,
and even after being paralyzed from the waist down by a spinal cord wound.
The same expert opined that if the facts were as described by appellant,
appellant acted reasonably.] He acknowledged that he could not be sure
Gardiner had his gun pointed at him when he fired the last two shots, but
explained that at the time, he was no longer thinking, just reacting, and averred
that his decision to “wasn't a case of making a choice or anything like that. It
was reaction. Split-second, instantaneously survival [ sic ].”
Id. at 10-11.
Petitioner claimed that the shooting was in self-defense. The evidence to the contrary
– the evidence that supports the verdict – includes that Gardiner got off no shots; that his gun
was found in his beanie cap near the gate, far from his body; and the testimony of a reluctant
witness, Juan Rodriguez, who heard the shots and saw a man who appeared to be Petitioner
walk a bit away from the scene, then return and fire a final shot into what the witness thought
was a car tire, but which in fact may have been the victim.
III. DISCUSSION
A. Motion for Evidentiary Hearing
Petitioner has moved for an evidentiary hearing to introduce into the record the
exhibits he has filed in support of his petition and an exhibit attached to his traverse.
An evidentiary hearing is held in federal habeas cases only under the most limited
circumstances. Baja v. Ducharme, 187 F.3d 1075, 1077-79 (9th Cir. 1999). An evidentiary
hearing on a claim for which the Petitioner failed to develop a factual basis in state court can
be held only if Petitioner shows that: (1) the claim relies either on (a) a new rule of
constitutional law that the Supreme Court has made retroactive to cases on collateral review,
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or (b) a factual predicate that could not have been previously discovered through the exercise
of due diligence, and (2) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no reasonable fact finder
would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2)(A)-
(B). In short, if Petitioner did not attempt to present in state court the facts he wishes to
present now, for instance by attempting to develop them in his state habeas proceedings, he
cannot do so now unless he can show that he meets the provisions of section 2254(e)(2)
outlined above.
A prisoner "fails" to develop the factual basis of a claim, triggering § 2254(e)(2), if
"there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's
counsel." Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000). "Diligence will require in
the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in
the manner prescribed by state law." Id. at 437. Accordingly, where the prisoner has met the
burden of showing he was diligent in efforts to develop the facts supporting his claims in
state court, an evidentiary hearing may be held without regard to whether the "stringent"
requirements of § 2254(e)(2) apply. Id. at 437; Jaramillo v. Stewart, 340 F.3d 877, 882 (9th
Cir. 2003); Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997).
It is Petitioner's burden to show that he attempted to develop the facts in state court
but was prevented from doing so. Hutchison v. Bell, 303 F.3d 720, 747 (6th Cir. 2002)
(requiring Petitioner to demonstrate "sufficient diligence"); Baja, 187 F.3d at 1078-79.
Petitioner does not demonstrate in his motion that he acted with due diligence in
attempting to develop the facts in state court, whether by requesting an evidentiary hearing in
state court or submitting declarations there. He thus has failed to develop facts in state court,
and because he has not attempted to show that the exceptions of Section 2254(e)(2)(A)-(B)
apply to him, is not entitled to an evidentiary hearing.
Furthermore, in ruling on issues where the attachments are relevant, such as those
involving the declarations of Rodriguez and Segura, the Court has taken the attachments into
account and nevertheless concluded that the claims are without merit. Thus, even if
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Petitioner had shown that he attempted to develop the facts in state court and was prevented
from doing so, he would not be entitled to an evidentiary hearing under the pre-AEDPA
standard. See Williams v. Calderon, 52 F.3d 1465, 1484 (9th Cir. 1995) (to establish right to
evidentiary hearing, Petitioner must provide allegations of fact that, if proven, would
establish right to relief).
The motion for an evidentiary hearing will be denied.
B. Merits
As grounds for habeas relief, Petitioner asserts that: (1) his counsel was ineffective in
failing to call Yarborough as a witness; (2) the prosecution violated his due process rights by
failing to turn over exculpatory evidence about a shooting in which the victim may have been
involved (the “Bancroft shooting”) until after the trial; (3) the prosecution violated his due
process rights by failing to turn over Bancroft shooting evidence at the preliminary hearing;
(4) the prosecution violated his due process rights by failing to turn over all the exculpatory
evidence from the Bancroft shooting; (5) counsel was ineffective in failing to discover
information about the Bancroft shooting; (6) the trial court’s denial of Petitioner’s motion for
more information about a altercation in which the victim was involved while incarcerated
violated his rights; (7) the prosecution violated his due process rights by failing to turn over a
diagram of the shooting scene; (8) counsel was ineffective in cross-examination of
Rodriguez; (9) the prosecution knowingly used perjured testimony; (10) there was
insufficient evidence to support the conviction; (11) his rights were violated in connection
with the trial court’s failure to give an instruction on inability to withdraw from mutual
combat; (12) his rights were violated by the failure to give the instruction involved in claim
eleven insofar as it had an impact on his “imperfect self-defense” argument; (13) his rights
were violated by the failure to give the instruction involved in claim eleven in that it affected
the mutual combat instructions; (14) his rights were violated by the trial court’s failure to
give a proposed instruction on the victim’s violent character; (15) his counsel had a conflict
///
///
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2 “So named after People v. Marsden, 2 Cal. 3d 118 (1970), it is a motion permitting a
defendant to articulate why he is dissatisfied with his court-appointed counsel and why counsel
should be relieved.” McNeely v. Blanas, 336 F.3d 822, 825 n. 3 (9th Cir. 2003).
7
at a Marsden2
hearing and in preparing a motion for new trial; (16) his appellate counsel was
ineffective in not raising the claims presented here on appeal; (17) his trial counsel was
ineffective in not asking for a continuance until after a co-defendant was sentenced; (18)
some jurors were biased, the prosecutor discriminated in his use of peremptory strikes, and
defense counsel was ineffective in not objecting to the discriminatory use of peremptory
strikes; (19) the superior court violated his rights by denying his motion for a transcript of
jury voir dire and for copies of the juror questionnaires; and (20) his trial counsel was
ineffective in not locating a witness named Felix Segura and in not calling him to testify.
1. Standard of Review
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) limits the authority of
federal courts to issue a writ of habeas corpus. Under AEDPA, a district court may only
grant a petition challenging a state conviction or sentence on the basis of a claim that was
"adjudicated on the merits" in state court if the state court's adjudication of the claim (1)
resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The first prong
of the Act applies both to questions of law and to mixed questions of law and fact. Williams
v. Taylor, 529 U.S. 362, 407-07 (2001). The second prong applies to decisions based on
factual determinations. Miller-El v. Cockrell, 537 U.S. 332, 339 (2003).
A state court has "adjudicated" a Petitioners claim on the merits for purposes of
2254(d) when it has decided the Petitioner's right to post-conviction relief on the basis of the
substance of the constitutional claim advanced, rather than denying the claim on the basis of
a procedural or other rule precluding state court review on the merits. Lambert v. Blodgett,
393 F.3d 943, 969 (9th Cir. 2004). It is error for a federal court to review de novo a claim
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that was adjudicated on the merits in state court. See Price v. Vincent, 538 U.S. 634, 638-43
(2003).
“Clearly established federal law, as determined by the Supreme Court of the United
States . . . refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions
as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. The "some
evidence" standard identified in Hill is clearly established federal law in the parole context
for AEDPA purposes. Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1128-29 (9th
Cir. 2006). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently than [the Supreme] Court has
on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. Additionally, a
state court decision is contrary to federal law if it “applies a rule that contradicts the
governing law.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). Importantly, state court
decisions are not required to cite Supreme Court cases, “so long as neither the reasoning nor
the result of the state-court decision contradicts them.” Id.
“Under the ‘unreasonable application’ clause, a federal habeas court may grant the
writ if the state court identifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Williams, 529 U.S. at 412-13. “[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously and incorrectly. Rather, that
application must also be unreasonable.” Id. at 411. Whether the state court’s decision was
unreasonable must be assessed in light of the record that court had before it. Holland v.
Jackson, 542 U.S. 649, 651 (2004) (per curiam). Moreover, the “unreasonable application”
clause is objective, and the federal court should ask only if it the state court decision was
reasonable, not whether other federal courts have applied federal law in the same manner as
the state court. Williams, 529 U.S. at 409.
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A federal court reviewing a state prisoner’s habeas corpus petition may also grant the
writ if it concludes that the adjudication of the claim “resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2). An unreasonable determination of the facts
occurs where the state court fails to consider and weigh highly probative relevant evidence,
central to Petitioner’s claim, that was properly presented and made part of the state-court
record. Taylor v. Maddox, 366 F.3d 992, 1005 (9th Cir. 2004). A district court must
presume correct any determination of a factual issue made by a state court unless the
Petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
2. Failure to Call Yarborough
Petitioner contends that his counsel was ineffective in failing in failing to call
Yarborough as a witness. This is ground one in the Amended Petition.
a. Standard
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the
Sixth Amendment right to counsel, which guarantees not only assistance, but effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to
prevail on a Sixth Amendment ineffectiveness of counsel claim, Petitioner must establish that
counsel's performance was deficient, i.e., that it fell below an "objective standard of
reasonableness" under prevailing professional norms. Id. at 687-88. Second, he must
establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id.
It is unnecessary for a federal court considering a habeas ineffective assistance claim
to address the prejudice prong of the Strickland test if the Petitioner cannot even establish
incompetence under the first prong. Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir.
1998). Similarly, a court need not determine whether counsel's performance was deficient
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before examining the prejudice suffered by the defendant as the result of the alleged
deficiencies. Strickland, 466 U.S. at 697.
b. Analysis
Romeo Yarborough was Petitioner’s co-defendant, but he pled guilty to voluntary
manslaughter on September 11, 2003, before the first trial was to begin. Petitioner’s motion
to postpone commencement of the first trial until after Yarborough’s sentencing was denied.
Yarborough still had not been sentenced when the second trial began on March 17, 2004.
The record contains orders signed by the trial judge on the 17th and 18th of 2004, ordering
Yarborough transported to court, but he did not testify.
One ground for Petitioner’s post-trial Marsden motion was that counsel failed to call
Yarborough. At the hearing on the motion, Petitioner contended that Yarborough would
have supported his self-defense claim if called. Ex. 4C at 740. Petitioner contended that
defense counsel told him that Yarborough did not want to testify and did not support
Petitioner’s story, whereas a defense investigator “said that [Yarborough] did want to
testify.” Id. The investigator was present at the Marsden hearing, and when asked by the
court whether that was correct, said: “We had a number of conversations back and forth.
Mr. Yarborough probably would have testified perhaps but there was a question whether he
was going to testify or not. There was a question whether he was going to take the Fifth, a
number of issues were going on with Mr. Yarborough. I believe Mr. Pyle spoke with him
and in that conversation it was determined that he would not be helpful to Mr. Stone’s
defense.” Id.
The trial court held that the decision was a trial tactic “that I’m not going to second
guess Mr. Pyle on.” Id. This was the only reasoned state court ruling on this claim, hence is
the one that Petitioner must show was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States,” or “resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. §
2254(d).
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The declaration is dated May 16, 2006, long after Yarborough’s sentencing on
December 13, 2004, and long after Petitioner’s trial in March of 2004. It thus was made
when Yarborough no longer faced the pressures he did at the time of Petitioner’s trial.
11
Petitioner has provided a declaration from Yarborough. Pet., Ex. Q. Assuming for
the sake of decision that it can be considered here, it provides no new information. The
declaration for the most part conforms very closely to the summary of Petitioner’s testimony
that the court of appeal used as the basis for its statement of the facts, which in turn was the
basis for this court’s facts as set out above.
As was brought out at the Marsden hearing, Yarborough says in his statement that he
had told a defense investigator that he was willing to testify. Yarborough then says:
Mr. Stone’s lawyer Walter [P]yle, summoned me from San Quentin prison
in order to testify on Mr. Stone’s behalf. However, when I arrived in court on
the day of the trial only moments before it started, Mr. Pyle asked me some
questions. I felt uncomfortable because I didn’t know what my rights were in
this situation, my lawyer was not present to advise me and I was concerned that
the D.A. might take my deal away if I testified. I told Mr. Pyle all the things
that I have stated in above statement & was prepared to testify before the court
as to the truth of this matter, however I was not called to testify and was given
no expl[a]nation as to the reason for the inconv[enie]nce.
Id.
The quoted portion of the declaration is somewhat inconsistent, in that Yarborough
seems to have been at least reluctant to testify, but also says that he was prepared to do so.3
In determining whether it was deficient performance for counsel not to call Yarborough, the
ambiguous declaration must be set against the fact that counsel interviewed Yarborough and
made a conscious decision not to call him, and that Yarborough’s testimony would have done
no more than confirm that of Petitioner himself. Such testimony would have been of little
value, since it would come from a person who clearly was deeply involved in the crime. On
these facts, the decision not to call Yarborough was not deficient performance, and because if
he had been called he would have done no more than provide weak support for Petitioner’s
version of events, the failure to call him was not prejudicial. And certainly the state courts’
rejections of this claim were not contrary to, or an unreasonable application of, clearlyestablished United States Supreme Court authority.
3. Late Disclosure of Information About Bancroft Avenue Shooting
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In his second ground for relief, Petitioner contends that the prosecutor failed to turn
over evidence of a shooting at 96th and Bancroft in Oakland, in which the victim, Gardiner,
may have been implicated, until after the trial.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." Id. at 87. The Supreme Court has since made
clear that the duty to disclose such evidence applies even when there has been no request by
the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses
impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S.
667, 676 (1985). Evidence is “material” under Brady "if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have
been different. A 'reasonable probability' is a probability sufficient to undermine confidence
in the outcome." Id. at 682. “There are three components of a true Brady violation: [t]he
evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82 (1999).
Gardiner’s resume was found in a car involved in the 96th and Bancroft shooting and
two witnesses said that someone named “C” opened fire on two victims. Gardiner went by
the nickname “C-note.” This information could have been relevant to Petitioner’s state of
mind, to the question whether he acted in self-defense, but only if there was evidence that
Petitioner was aware of the 96th and Bancroft shooting at the time of the murder. There is no
evidence in the record that Petitioner was aware of that shooting, so the evidence that was not
disclosed was not material for that reason. In addition, the parties entered into a stipulation
that the victim had bragged to his girlfriend about having shot Leo Logwood, a friend of
Petitioner and of Yarborough, and of having committed the Bancroft shootings. Ex. 4C at
540. This stipulation, and the information that the victim was a drug dealer and had
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threatened Petitioner and Yarborough, was before the jury. In light of this, even if the State’s
information about the Bancroft shooting had been turned over, the result of the proceeding
would not have been different – that is, the information was not material. See Bagley, 473
U.S. at 682 (definition of “material” for Brady purposes).
For these reasons, the rejections of this claim by the state courts were not contrary to,
or unreasonable applications of, clearly-established United States Supreme Court authority.
4. Preliminary Hearing Brady claim
In ground three, Petitioner contends that it was a Brady violation for the prosecution
not to turn over the evidence about the Bancroft shooting in time for the preliminary hearing.
The Court has determined above that information about the Bancroft shooting was not
material, so failure to turn it over, whether in time for trial or in time for the preliminary
hearing, was not a constitutional violation. This claim is without merit.
5. Undisclosed Brady Material
In ground four, Petitioner speculates that there must have been additional information
about the Bancroft shooting that was never turned over. Petitioner has failed to establish that
there was evidence that was not turned over. Furthermore, the analysis in section two, above,
shows that information about the Bancroft shooting was not material, and that analysis also
applies to this claim. This claim is without merit.
6. Counsel’s Failure to Discover Facts of Bancroft Shooting
In ground five, Petitioner contends that counsel was ineffective in not discovering the
facts of the Bancroft shooting. The standard set out above in section 2(a) for ineffective
assistance claims applies to this claim. See Strickland v. Washington, 466 U.S. 668, 686, 694
(1984) (to prevail on an ineffectiveness of counsel claim, Petitioner must establish that
counsel's performance was deficient and that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.").
Because there is no evidence that Petitioner knew of the Bancroft shooting at the time of his
confrontation with Gardiner, and because the Bancroft information was not material, he
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could not have been prejudiced by any hypothetical failure of counsel to discover it. This
claim is without merit.
7. Request for Prison Information
Before Petitioner’s first trial, the trial court reviewed the victim’s prison record. It
contained a record of a fight between the victim and another prisoner in 2002. The prison
record evidently quoted Gardiner as saying that he and the other prisoner had just been
“messing around,” and that they were friends. The court declined to reveal the name of the
other prisoner to counsel so counsel could contact him to determine whether Gardiner had
been the aggressor. Petitioner’s sixth ground for relief in the Amended Petition is that the
refusal of the court at the first trial to release the information violated his rights under Brady,
his right to compulsory process, and his right to effective assistance of counsel. Pet. P&A
48-49.
The second and third grounds are frivolous; in the absence of a similar request at the
second trial, his right to compulsory process was not triggered, and the court at the second
trial did nothing with respect to this issue that hampered his counsel’s representation. And
although it apparently is true that the prosecution did not turn over the prison records as
Brady material at the time of the second trial, even if the other prisoner involved in the
incident could have been contacted and had blamed Gardiner as the aggressor, that relatively
minor piece of information would not have created a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different. See Bagley, 473 U.S. at 682. This claim is without merit.
8. Suppression of Diagram
In his seventh ground for relief, Petitioner contends that his Brady rights were violated
by the prosecution’s failure to turn over a diagram of the shooting scene which he believes
must have existed. Petitioner has not established the existence of such a diagram, so this
claim is without merit.
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9. Cross-Examination of Rodriguez
In his eighth ground for relief, Petitioner contends that his attorney was ineffective in
his cross-examination of witness Rodriguez. The standard set out above in section 2(a) for
ineffective assistance claims applies here. See Strickland v. Washington, 466 U.S. 668, 686,
694 (1984) (to prevail on an ineffectiveness of counsel claim, Petitioner must establish that
counsel's performance was deficient and that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.").
Rodriguez was the only witness to the shooting who was not a member of Petitioner’s
family. The California Court of Appeal set out the facts regarding his testimony:
The eyewitness whose testimony was most damaging to appellant's case was
Juan Rodriguez, who testified at the trial through an interpreter.
Rodriguez was a carpenter who was remodeling a house on 52nd Avenue
during December 2002. On December 5, 2002, he was working on the house
late in the evening, when it was dark out, with his wife and children present in
the house. He testified that he heard two shots from inside the house, and then
looked out the window, but saw nothing. He then went into another room in the
house where his wife was, heard two more shots, and looked out the window
again. He then saw two men next to a car, near the tire, and “a light like a little
flame coming out right next to the tire of the car” when the taller of the two
men [FN16. Appellant is a few inches taller than Yarborough.] fired the fifth
and last shot. Rodriguez did not see anyone other than the two men, and
thought that they had just fired at the car tire.
Rodriguez testified that the taller man walked away, turned around and walked
back to the car to fire the final shot, and then walked away again with the other
man, laughing. He also said that before firing the final shot, the tall man made a
backward motion with his hands, as if pulling a gun out of his waistband, but
acknowledged that he did not actually see the gun. At an earlier hearing,
however, Rodriguez had testified that only seconds elapsed between the fourth
shot and the fifth shot.
Rodriguez testified that at the time of the shooting, he recognized the two men
as the same ones he had seen in the area two days earlier, when they asked him
for a cigarette and a light, but that by the time of trial, he no longer
remembered what they looked like, except that one was taller and
darker-skinned, and the other was shorter and lighter-skinned. [FN17. A police
officer who interviewed Rodriguez on December 19, 2002, testified that at that
time, Rodriguez said he had seen a tall person with a dark face standing over
the victim, with another person next to him, and that he had seen these two men
in the neighborhood prior to the shooting.] He did not identify appellant when
shown a photo lineup containing appellant's photograph, and did not recognize
appellant as the shooter at the trial.
Rodriguez testified at trial that when he was shown a photo lineup, he
identified one of the photographs as resembling, but not necessarily being, the
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shooter. [FN18. This testimony was corroborated by one of the officers who
were present at the time Rodriguez viewed the photo lineup.] The photograph
Rodriguez identified in this manner did not depict either appellant or
Yarborough. Rodriguez admitted that at appellant's earlier trial, he had testified
that he was “a hundred percent sure” that the photograph depicted the shooter,
but contended that he had meant to say he was a hundred percent sure that the
photograph resembled the shooter. Rodriguez had testified at appellant's
preliminary hearing, at which he did not have the assistance of an interpreter,
that the man who did the shooting was the lighter-skinned of the two men, but
at trial, he denied having made that statement. At trial, he recalled that the
shooter was the taller and darker of the two men.
Rodriguez acknowledged at trial that it was dark out at the time of the shooting,
and that it was not possible to really see clearly outside through the closed
window of the living room, in which the lights were on. He said that there was
moonlight at the time, but the court later took judicial notice of the fact that on
the day of the shooting, the moon set at 6:14 p.m. Appellant's investigator
testified that the distance from the front steps of the house Rodriguez was
working on to the location where Gardiner's body was found was 160 feet, but
acknowledged on cross-examination that the area in front of appellant's family
home was visible from the window through which Rodriguez said he observed
the shooting.
In his defense case, appellant presented the testimony of the police officer who
interviewed Rodriguez on the night of the crime. The officer's notes indicated
that Rodriguez told him he had heard five loud pops, and that his wife had then
looked out the window and said she saw two men walking away from the area.
Rodriguez then looked out the window himself, and saw two men he
recognized from seeing them hanging around in the area during the previous
couple of days. The men walked until they reached the house across the street
from the one in which Rodriguez was working, and then ran through its yard in
a westbound direction. Rodriguez was able to describe the two men. The
officer described Rodriguez as being nervous and somewhat rattled during the
interview, and in a hurry to leave the area, and although he spoke enough
English to communicate with the officer, he sometimes had to search for words
to use to describe things. [FN19. Rodriguez also described himself as having
been extremely nervous when he spoke to the officer, and did not remember
very well what he had said. He testified on direct examination that he did not
read his statement before signing it, but admitted on cross-examination that he
had looked it over. He admitted at first that the officer had read at least some
parts of the statement to him before he signed it, as he had testified at the
earlier trial, but then said he did not remember whether this had occurred or
not.] During the interview, which lasted about 15 minutes, Rodriguez never
mentioned having actually seen anyone doing any shooting.
Ex. 5 at 12-13.
This ground for relief contains two separate claims. Counsel did impeach Rodriguez
on a number of points, namely that at the preliminary hearing Rodriguez had identified
Yarborough as the shooter, had told police that he did not see the shooting, had claimed to be
100% certain that a person he picked out of a photo array – who was neither Petitioner nor
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Yarborough – was the shooter, and had not mentioned at the preliminary hearing his trial
claim that the shooter walked away from the victim’s body, then returned to fire another shot.
Petitioner contends, however, that counsel was ineffective in not “demonstrating through
questioning that the inconsistencies were not innocent,” Pet. P&A at 52, but rather were lies
meant to aid the prosecution. Petitioner suggests that this could have been done by asking
Rodriguez to “explain” the inconsistencies, something experienced litigators know is not
good cross-examination. Doing so would not have been any more effective than what
counsel did, namely bring out inconsistencies from which the jury could have concluded that
Rodriguez was a liar. This subclaim is without merit.
The other subclaim in this ground for relief is a contention that counsel was
ineffective in not using cross-examination to point out prior inconsistent statements by
Rodriguez. The first of these is that Rodriguez identified Yarborough as the shooter at the
preliminary hearing, but at trial identified Petitioner. Id. at 6e. Defense counsel did,
however, bring that out in his cross-examination. Ex. 4A at 203-04. Petitioner also contends
that counsel should have elicited that Rodriguez had “little or no difficulty understanding
questions at the preliminary hearing,” which would have undermined the prosecution’s
theory that Rodriguez’s flip-flop as to the identity of the shooter was becuase of a language
barrier. Pet. at 6e. Petitioner provides no basis for the contention that Rodriguez had no
language difficulty at the preliminary hearing; the bare transcript references he provides do
not prove or disprove the point, because a witness’s difficulty understanding would not
necessarily appear in the record, and a reading of the entire examination and crossexamination of Rodriguez in fact reveals many misunderstandings and communication
difficulties.
Petitioner also contends that counsel was ineffective in not asking Rodriguez why he
had initially failed to mention that Petitioner walked away from the victim, then came back
and fired again, and in not “impeaching” Rodriguez with the fact that the prosecutor had to
lead him to obtain that testimony. The prosecutor’s questions at the preliminary hearing
would not have been a proper basis for impeachment, not being a prior inconsistent statement
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by the witness, and it is generally not effective representation to ask “why” in crossexamination.
Petitioner also contends that counsel should have impeached Rodriguez with his
inconsistent statements about whether he saw a muzzle flash from the gun; his inability to
identify Petitioner at trial, after identifying him at the preliminary hearing; and his statement
at the preliminary hearing that he’d seen a body or “shadow” falling, which was inconsistent
with his trial testimony that he did not see anyone other than Petitioner and Yarborough.
As to the last two of these three, clearly it would have been counterproductive to
emphasize testimony unfavorable to Petitioner, even if inconsistent, by repeating it as a
cross-examination question. As to the muzzle flash, Petitioner is correct that the witness said
in the preliminary hearing that he did not see a gun flash, Ex. 1A at 113, and at trial that he
did, Ex. 4A at 180, 199. Counsel did, however, effectively used the many other
inconsistencies between Rodriguez’s preliminary hearing testimony and his trial testimony.
See Ex. 4A at 197-204. The failure to use the gun flash inconsistency was quintessentially
the sort of tactical decision by counsel which the Court should not second-guess. See Bashor
v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984) (tactical decisions are not ineffective
assistance simply because in retrospect better tactics are known to have been available).
For these reasons, counsel was not ineffective in his cross-examination of Rodriguez
10. Perjured Testimony
In his ninth claim, Petitioner contends that admission of Rodriguez’s allegedly
perjured testimony violated his due process rights.
"[A] conviction obtained by the knowing use of perjured testimony is fundamentally
unfair, and must be set aside if there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103
(1976); see also United States v. Bagley, 473 U.S. 667, 678-80 (1985) ("Deliberate deception
of the court by the presentation of false evidence is incompatible with rudimentary demands
of justice" and a resulting conviction must be set aside "if there is any reasonable likelihood
that the false testimony could have affected the jury verdict.").
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Prosecutors will not be held accountable for discrepancies in testimony where there is
no evidence from which to infer prosecutorial misconduct. United States v. Zuno-Arce, 44
F.3d 1420, 1423 (9th Cir.1995). Here, it is undisputed that there were inconsistencies
between Rodriguez’s statement to police at the time of the offense, his testimony at the
preliminary hearing, and his testimony at trial. Petitioner has not, however, established that
any of the testimony was a deliberate lie, nor that it was the testimony at trial, as opposed to
the other testimony, that was untrue. But most importantly, even if it is assumed for purposes
of decision that the testimony at trial was untrue, Petitioner has not established that the
prosecution knew it. This claim is without merit. See Morales v. Woodford, 388 F.3d 1159,
1179 (9th Cir.2004) (factual basis for attributing knowledge to the government that the
testimony was perjured must be established).
11. Sufficiency of the Evidence
In his tenth ground for relief, Petitioner contends that there was insufficient evidence
to disprove self-defense and prove premeditation and deliberation.
The Due Process Clause "protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged." In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the
evidence in support of his state conviction cannot be fairly characterized as sufficient to have
led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a
constitutional claim, Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles
him to federal habeas relief, id. at 324. The federal court determines only whether, "after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319.
Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt,
may the writ be granted. Id. at 324.
Here, Petitioner’s own evidence was that he walked away from the confrontation, but
once he got around the side of the house changed his mind, drew his gun, and returned to the
scene. Petitioner does not dispute that he fired the last two shots into the victim’s head at
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close range, and Rodriguez’s evidence would support the conclusion that Petitioner paused,
then decided to finish off the victim execution-style. And the victim’s gun was found,
unfired, some distance from where he fell when his spinal cord was severed.
Rodriguez’s statements to the police, at the preliminary hearing, and at trial were
undoubtedly inconsistent, but when considering a sufficiency of the evidence claim the Court
must “view[] the evidence in the light most favorable to the prosecution,” id. at 319, so must
assume that the jury believed the prosecution witnesses. The evidence summarized above
was sufficient to support the verdict.
12. Failure to Instruct on Inability to Withdraw
In his eleventh ground for relief, Petitioner contends that his due process rights were
violated when the trial court did not give the jury an instruction. He also contends that his
counsel was ineffective in failing to request it. Because counsel did in fact request the
instruction, the ineffective assistance part of this claim clearly is without merit. See Ex. 1D
at 823-25; 4C at 634-35.
This issue was raised on direct appeal. The California Court of Appeal explained the
context:
Finally, appellant argues that even if warranted, the mutual combat instruction
was incomplete and therefore misleading. His argument rests largely on
[People v.] Quach [(2004)] 116 Cal.App.4th 294. In Quach, a group of people
composed of members of two rival gangs emerged from a bar. An argument
broke out between the defendant and a member of the rival gang. Shots were
exchanged between both men. The eyewitness accounts failed to agree as to
who drew a weapon first, but there was substantial evidence that the rival drew
first, and perhaps even fired, before the defendant drew his gun. Based on this
specific set of facts, Division Three of the Fourth District determined that
CALJIC No. 5.56 had probably misled the jury by omitting an exception to the
general rule requiring mutual combatants or initial aggressors to withdraw in
order to regain the right to self-defense. [FN31. CALJIC No. 5.56 was
subsequently revised in light of Quach, supra, 116 Cal.App.4th 294. (CALJIC
No. 5.56 (2004 Re-revision).) The mutual combat instruction included in the
Judicial Council Criminal Jury Instructions also includes an optional paragraph
reflecting the holding in Quach, to be used, when the facts warrant, in both
initial aggressor and mutual combat situations. (CALCRIM No. 3471.)] This
exception is that “ ‘when a defendant engages in a simple assault and his
opponent responds with deadly force so suddenly that the person cannot
withdraw, a defendant may immediately use deadly force in self-defense.’ “
(Id. at p. 301.)
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Here, one possible view of the evidence is that appellant committed a simple
assault by grabbing Gardiner's shoulder, and that Gardiner suddenly responded
with deadly force by raising his previously concealed gun and pointing at
appellant, giving appellant no opportunity to withdraw. Under this view of the
evidence, the Quach exception then came into play, and appellant became
entitled to respond with deadly force in self-defense. Thus, the facts of this case
may well have justified including in the instruction the Quach exception, as
appellant's trial counsel requested.
Nonetheless, we find the error harmless. Even if appellant initially started
shooting Gardiner out of self-defense, the jury's rejection of appellant's
self-defense claim, and its finding of premeditated murder, reflect a finding that
by the time appellant fired the final, fatal shots, Gardiner had been disabled,
and appellant had thus lost his right to continue to use deadly force. (See
CALJIC Nos. 5.52, 5.53.) It is therefore not reasonably probable that including
the Quach proviso in the mutual combat instruction would have resulted in an
outcome more favorable to appellant.
Ex. 5 at 30-31.
A state trial court's refusal to give an instruction does not alone raise a ground
cognizable in a federal habeas corpus proceedings. Dunckhurst v. Deeds, 859 F.2d 110, 114
(9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair
trial guaranteed by the Fourteenth Amendment. Id. The omission of an instruction is less
likely to be prejudicial than a misstatement of the law. Walker v. Endell, 850 F.2d
850 F.2d 470, 475-76 (9th Cir. 1987) (citing Henderson v. Kibbe, 431 U.S. at 155). Thus, a
habeas Petitioner whose claim involves a failure to give a particular instruction bears an
"'especially heavy burden.'" Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997)
(quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).
Here, it is established by the court of appeal’s opinion that the trial court’s failure to to
give Petitioner’s proposed addition to the instructions was state law error. The reasons upon
which the court of appeal relied for concluding that the error was harmless, however, also
establish that failure to give the instruction did not so infect the trial as to deprive Petitioner
of a fair trial. That is, the fact that the jury found Petitioner guilty of premeditated murder
and rejected his self-defense argument on the instructions that were given means that, on
these facts, the proposed addition to the self-defense instruction was surplusage. The failure
to give it thus could not have deprived Petitioner of a fair trial. This claim is without merit.
///
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13. Imperfect Self-Defense
In his twelfth ground for relief, Petitioner contends that the trial court’s failure to give
the additional instruction discussed in section twelve, above, also had the effect of denying
him the benefit of a concept under California law known as “imperfect self-defense.”
Imperfect self-defense occurs when a defendant subjectively believes in the need to defend,
but that belief or the resulting conduct is unreasonable. Ex. 5 at 27. The trial court’s failure
to give the proposed addition did not affect the fairness of the trial for the reason discussed
above, so this claim is without merit.
14. Mutual Combat Instructions
In this thirteenth ground for relief, Petitioner contends that the trial court’s failure to
give the additional instruction discussed in section twelve, above, also had the effect of
undermining a jury instruction that includes a provision restricting application of self-defense
in mutual combat situations. See CALJIC 5.56. The trial court’s failure to give the proposed
addition did not affect the fairness of the trial for the reason discussed above, so this claim is
without merit.
15. Instruction on Decedent's Violent Character
Petitioner’s fourteenth ground for relief is a claim that his rights were violated by the
trial court’s failure to give his requested instruction that a decedent’s character for violence
“in the form of specific instances of conduct and opinions of people who knew his reputation
may be considered by you as relevant to the issue of whether Noble Gardiner was acting in
conformity with his character trait for violence. . . .” Ex. 1D at 795. The California Court of
Appeal held that failure to give the instruction was state law error, but that the error was
harmless:
As is clear from our statement of the facts, appellant was permitted to introduce
ample evidence tending to prove Gardiner's violent character. The jury was
given guidance as to the import of this evidence by appellant's pinpoint
instruction which was given, and which told the jury that it could consider
Gardiner's past threats and harmful acts against appellant and others in
determining the reasonableness of appellant's beliefs and conduct. Although
this instruction did not expressly use the term “violent character,” it did
implicitly permit the jury to consider Gardiner's character, as demonstrated by
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the evidence of his past behavior, in determining whether appellant's fear of
Gardiner was reasonable.
Moreover, appellant's trial counsel repeatedly drew the jury's attention to
Gardiner's violent character in his closing argument. He stressed that Gardiner
“claimed to be a shooter and a killer”; noted that Gardiner told appellant and
Yarborough “how tough a guy he was, [and that] he shoots people”; drew
inferences from Gardiner's tattoos about “what kind of guy” he was; and
reminded the jury of Smith's testimony that Gardiner had several guns, and
always carried one with him.
In addition, the jury was instructed not only on self-defense, but also on
imperfect self-defense, using CALJIC 5.17. Under this instruction, if the jury
believed that appellant subjectively feared Gardiner, but deemed that fear
unreasonable, it would have convicted him of voluntary manslaughter rather
than first-degree murder. Conversely, the jury's verdict finding appellant guilty
of first-degree murder implies that it rejected appellant's testimony that he
believed he was acting in self-defense. If the jury had believed appellant's
description of his own state of mind, but found his fear of Gardiner or his
resulting conduct unreasonable, the refused instructions on Gardiner's violent
character would have had more bearing on the jury's decision, because the
instructions were directly relevant to the reasonableness of appellant's beliefs
and actions. The first-degree murder verdict, however, implies that the jury
simply did not believe that appellant was motivated solely by self-defense
when he killed Gardiner. (See People v. Crandell (1988) 46 Cal.3d 833, 874
(Crandell ), disapproved on another ground in People v. Crayton (2002) 28
Cal.4th 346, 364-365 [finding errors in jury instructions on self-defense
harmless, where jury's verdict finding murders to have been committed with
premeditation and deliberation “indicate[d] a complete rejection of the
evidence on which defendant relied to establish self-defense”].) As to the
fundamental question whether defendant's self-defense claim was credible, the
rejected instructions did not materially add to the self-defense instructions that
were actually given.
For all of the foregoing reasons, even if the trial court erred in refusing to give
the victim's violent character and awareness of victim's violent character
instructions, we are not convinced that it is reasonably probable that a result
more favorable to appellant would have been reached in the absence of the
error. ( People v. Watson, supra, 46 Cal.2d at p. 836.)
Ex. E at 27-28.
The standard applicable here to Petitioner’s constitutional claim is that set out above
in section twelve: he must show that the failure to give that instruction denied him a fair trial.
For the reasons set out by the court of appeal in concluding that the state law error was
harmless, the Court concludes that failure to give the instruction did not deny Petitioner a fair
trial.
///
///
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16. “Conflict of Interest”
Petitioner’s fifteenth ground for relief is that his counsel allegedly had a “conflict of
interest” in the Marsden hearing and in preparing a motion for new trial. In essence,
Petitioner’s claim is that counsel was unable to admit his failings at the Marsden hearing out
of fear of malpractice liability or bar discipline – that counsel had a conflict between selfinterest and the interest of his client – which resulted in the Marsden motion being denied
and in counsel filing a motion for new trial that omitted any claims that he had been
ineffective.
The denial of a motion to substitute counsel implicates a defendant's Sixth
Amendment right to counsel and is properly considered in federal habeas. Bland v.
California Dep't of Corrections, 20 F.3d 1469, 1475 (9th Cir. 1994), overruled on other
grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc). The Ninth Circuit has
held that when a defendant voices a seemingly substantial complaint about counsel, the trial
judge should inquire into the reasons for the defendant's dissatisfaction. Id. at 1475-76. The
inquiry need only be as comprehensive as the circumstances reasonably would permit,
however. King v. Rowland, 977 F.2d 1354, 1357 (9th Cir. 1992) (record may demonstrate
that extensive inquiry was not necessary). The ultimate inquiry in a federal habeas
proceeding in which a petitioner contends new counsel should have been appointed is
whether the Petitioner's Sixth Amendment right to counsel was violated. Schell, 218 F.3d at
024-25.
The standard set out above in section 2(a) above for ineffective assistance claims
applies to this claim. See Strickland v. Washington, 466 U.S. 668, 686, 694 (1984) (to
prevail on an ineffectiveness of counsel claim, Petitioner must establish that counsel's
performance was deficient and that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.").
Petitioner contends that his ineffective assistance claims should have been raised in a
motion for new trial, and that it was ineffective assistance not to raise them. The claims he
says should have been raised are largely those discussed in sections one, five, eight,
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seventeen, and eighteen of this order. They are without merit. Because petitioner has not
shown any instances in which counsel was ineffective at or before trial, it was not ineffective
assistance for his attorney not to raise those claims in the motion for new trial.
In addition, this claim is, in essence, a claim that the Sixth Amendment requires
appointment of different counsel to represent a criminal defendant on his or her motion to
replace counsel, something that has never been considered, much less required, by the United
States Supreme Court. As a consequence, the state courts’ denials of this claim cannot be
contrary to, or an unreasonable application of, clearly established Supreme Court authority.
17. Ineffective Appellate Counsel
In his issue sixteen, Petitioner contends that his appellate counsel was ineffective in
failing to raise “the claims in this petition” on direct appeal. As the claims are rejected on the
merits in this ruling, this ground for relief is without merit.
18. Counsel’s Failure to Ask for Continuance
In ground seventeen of the amended petition, Petitioner contends that his counsel was
ineffective in not asking for a continuance until after Yarborough’s sentencing, when
Yarborough might have been more willing to testify, and that the prosecutor and
Yarborough’s attorney intimidated Yarborough into not testifying.
As respondent points out, a motion to continue the trial until after Yarborough’s
sentencing had been denied before the first trial, suggesting that such a motion would have
had little chance of success. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (trial
counsel cannot have been ineffective for failing to raise a meritless motion). Furthermore,
although in his declaration Yarborough refers to his concern that his plea bargain would be
withdrawn if he testified, he provides no indication that his testimony, had been able to give
it freely, would have been anything other than what he describes in the declaration, i.e.,
duplicative of Petitioner’s own. For these reasons, counsel’s failure to move for a
continuance until after Yarborough’s sentencing was not deficient performance, nor could it
have prejudiced Petitioner.
///
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4 Batson v. Kentucky, 476 U.S. 79 (1986).
5 The standard set out above in section 2(a) for ineffective assistance claims applies to this
claim. See Strickland v. Washington, 466 U.S. 668, 686, 694 (1984) (to prevail on an
ineffectiveness of counsel claim, Petitioner must establish that counsel's performance was deficient
and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different.").
26
As to Petitioner’s claim that Yarborough was intimidated into not testifying, there
simply is no evidence of that in the record, and in fact there is evidence to the contrary -- that
it was defense counsel’s decision not to use Yarborough. See Ex. 4C at 740.
The claims in ground seventeen are without merit.
19. Batson Claim
In his ground for relief eighteen, Petitioner contends that some jurors were “biased,”
that the prosecutor used peremptory strikes to remove “minority” jurors from the panel, and
that his counsel was ineffective in not challenging the strikes on Batson4
grounds. There is
nothing in the record to support this claim. It is rejected.
20. State Court Denial of Petitioner’s Postconviction Request for Juror Voir
Dire Transcripts and Questionnaires
In his nineteenth ground for relief, Petitioner contends that the superior court’s denial
of his motion for a transcript of jury voir dire and for copies of the juror questionnaires
violated his due process rights. The California rule requiring an indigent defendant to show a
specific need for a complete voir dire transcript does not violate clearly established federal
law, Boyd v. Newland, 467 F.3d 1139, 1150-51 (9th Cir. 2006), and in view of Petitioner’s
complete failure to provide any factual basis from his own recollection for his claims
regarding jury prejudice or discriminatory use of peremptory strikes, the denial of his motion
did not violate due process. This claim is rejected.
21. Witness Segura
In his twentieth claim, Petitioner contends that his trial counsel was ineffective in
failing to investigate to discover a witness named Felix Segura, and in failing to call him to
testify.5
Petitioner has provided a declaration by Segura. Am. Pet., Ex. W. As discussed
above in the ruling on Petitioner’s motion to dismiss, he has not established that he exercised
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due diligence in attempting to present the Segura declaration to the state courts, and thus it
cannot be considered here. See 28 U.S.C. § 2254(e)(2)(A)-(B).
Alternatively, assuming for purposes of decision that the declaration can be
considered, it does not suffice to show ineffective assistance.
Segura says in his declaration that he was interviewed “by a man and a woman who I
believed were working with the defense.” Am. Pet., Ex. W. Thus, defense counsel did
discover Segura. Segura’s evidence was that he heard shots but did not see the shooting. Id.
Although Segura does say that the shots came in rapid succession, this minor discrepancy is
not sufficient to generate a reasonable probability that the outcome of the trial would have
been different. He thus was not prejudiced by counsel’s failure to call Segura.
This claim is without merit.
C. Appealability
The federal rules governing habeas cases brought by state prisoners have recently
been amended to require a district court that denies a habeas petition to grant or deny a
certificate of appealability in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28
U.S.C. foll. § 2254 (effective December 1, 2009).
A petitioner may not appeal a final order in a federal habeas corpus proceeding
without first obtaining a certificate of appealability (formerly known as a certificate of
probable cause to appeal). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge shall
grant a certificate of appealability "only if the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate must indicate
which issues satisfy this standard. See id. § 2253(c)(3). “Where a district court has rejected
the constitutional claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: the petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 120
S.Ct. 1595, 1604 (2000).
///
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This was not a close case. For the reasons set out above, jurists of reason would not
find the result debatable or wrong. A certificate of appealability will be denied. Petitioner is
advised that he may not appeal the denial of a COA, but he may ask the court of appeals to
issue a COA under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a),
Rules Governing § 2254 Cases.
IV. CONCLUSION
Petitioner’s motion for an evidentiary hearing (document number 44 on the docket) is
DENIED. For the reasons set out above, his petition for a writ of habeas corpus also is
DENIED. A certificate of appealability is DENIED. See Rule 11(a) of the Rules Governing
Section 2254 Cases (eff. Dec. 1, 2009).
The Clerk shall enter judgment in accordance with this order and close the file.
SO ORDERED.
Dated: 01/11/10
THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_16-cv-03298/USCOURTS-cand-3_16-cv-03298-0/pdf.json | [
[
"Eric Arnold",
"Respondent"
],
[
"Richard C. Davidson",
"Petitioner"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RICHARD C. DAVIDSON,
Petitioner,
v.
ERIC ARNOLD,
Respondent.
Case No. 16-cv-03298-JCS (PR)
ORDER OF DISMISSAL
Petitioner has failed to comply with the Court’s order (1) to file an application to
proceed in forma pauperis (“IFP”), or (2) pay the full filing fee of $5.00. Accordingly, the
action is DISMISSED without prejudice for failing to respond to the Court’s order, and for
failure to prosecute, see Fed. R. Civ. P. 41(b).1
Because this dismissal is without prejudice, petitioner may move to reopen the
action. Any such motion must contain (1) a complete IFP application; or (2) full payment
for the filing fee of $5.00.
The Clerk shall enter judgment in favor of respondent, and close the file.
IT IS SO ORDERED.
Dated: July 26, 2016
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge
1
Petitioner consented to magistrate judge jurisdiction. (Docket No. 2.) The magistrate
judge, then, has jurisdiction to decide this motion, even though respondent has not been
served or consented to magistrate judge jurisdiction. See Neals v. Norwood, 59 F.3d 530,
532 (5th Cir. 1995)
Case 3:16-cv-03298-JD Document 4 Filed 07/26/16 Page 1 of 2
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RICHARD C. DAVIDSON,
Plaintiff,
v.
ERIC ARNOLD,
Defendant.
Case No. 16-cv-03298-JCS
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 July 26, 2016, 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.
Richard C. Davidson ID: AK4986
California State Prison-Solano
P.O. Box 4000
Vacaville, CA 95696
Dated: July 26, 2016
Susan Y. Soong
Clerk, United States District Court
By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO
Case 3:16-cv-03298-JD Document 4 Filed 07/26/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-13-14435/USCOURTS-ca11-13-14435-0/pdf.json | [
[
"United States of America",
"Appellee"
],
[
"Andrew Wingo",
"Appellant"
]
] | [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14435
________________________
D.C. Docket No. 3:11-cr-00058-CAR-CHW-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDREW WINGO,
a.k.a. Andy Wingo,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 16, 2015)
Before MARCUS and ROSENBAUM, Circuit Judges, and FRIEDMAN,
* District
Judge.
ROSENBAUM, Circuit Judge:
* Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation.
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Sometimes running a district court can be like a high-wire balancing act.
But when it comes to ensuring the competence of defendants when they go to trial
or plead guilty, the court takes on the role of a safety net.
Our criminal-justice system depends on the exercise of, or knowing and
intelligent waivers of, constitutional rights. But to engage in these activities, a
defendant must first and necessarily have the abilities to understand the
proceedings and to assist counsel. Because competence is the base upon which
other constitutional rights balance, due process and Section 4241(a) of Title 18 of
the United States Code demand that a hearing on a defendant’s competence be held
whenever reasonable cause exists to believe that a defendant may not be competent
to proceed to trial or to enter a guilty plea.
Here, no hearing occurred, despite evidence creating reasonable cause to
believe that Appellant Andrew Wingo might not have been competent to proceed.
We therefore hold that the district court did not satisfy its duty under 18 U.S.C. §
4241(a). We remand this case to the district court so that it can determine whether
Wingo’s competency at the time of his guilty plea can be evaluated nunc pro tunc,
and if so, for an assessment of his competency at the time of his guilty plea and
sentencing. If Wingo is determined to have been incompetent, or if a nunc pro
tunc evaluation cannot be made, Wingo’s conviction and sentence must be vacated,
subject to the government’s right to try him should he become competent. On the
USCA11 Case: 13-14435 Date Filed: 06/16/2015 Page: 2 of 28
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other hand, if Wingo is determined to have been competent, his conviction and
sentence must be affirmed.
I.
A.
In October 2007, the Federal Bureau of Investigation (“FBI”) began
investigating Wingo, his parents, and a business associate regarding a fraud and
money-laundering scheme thought to have begun in 2003, stemming from their
operation of a charitable not-for-profit organization, Angel Food Ministries
(“AFM”). The investigation concluded that Wingo engaged in various schemes to
fraudulently divert monies from AFM for his own personal use, resulting in
laundered funds of up to $2.4 million.
B.
On November 29, 2011, a federal grand jury sitting in the Middle District of
Georgia returned a 49-count indictment related to the AFM fraud, charging Wingo
in 44 of the counts. Specifically, Wingo was charged with (1) conspiracy to
commit wire fraud, mail fraud, theft from an organization receiving federal funds,
interstate transportation of stolen property, and tampering with a witness, in
violation of 18 U.S.C. §§ 371, 666, 1341, 1343, 1349, 1512, and 2314 (Count 1);
(2) 23 counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts 2-24); (3)
fifteen counts of money laundering, in violation of 18 U.S.C. § 1957 (Counts 25-
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4
39); (4) conspiracy to commit money laundering, in violation of 18 U.S.C. §
1956(h) (Count 40); and (5) four counts of interstate transportation of stolen
property, in violation of 18 U.S.C. § 2314 (Counts 43-46).
At Wingo’s initial appearance on December 1, 2011, Wingo proceeded pro
se. The government noted that Wingo had an extensive gun collection and asked
that Wingo not be allowed to possess firearms, as a condition of bond. Wingo
stated that he had no objection to this condition because he no longer had a gun
collection. A lawyer was appointed to represent Wingo at Wingo’s December 13,
2011, arraignment.
Shortly thereafter, on January 10, 2012, Wingo, along with his codefendants1 and the government, jointly moved the district court to declare the case
complex, pursuant to 18 U.S.C. § 3161(h)(7)(B), citing the complexity and number
of alleged violations of federal law, the anticipated 440 million pages of discovery
(two terabytes of electronically stored information), and the locations of evidence
and witnesses outside the state of Georgia.
The court held a status conference on February 1, 2012, to address the
motion. The government informed the court that an FBI agent and an IRS agent
had been reviewing discovery documents for three years and that it expected its
1 Co-defendant Joe Wingo did not join the motion.
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5
case alone to last three to four weeks if tried. The court granted the motion to
declare the case complex.
Meanwhile, a bond-revocation hearing occurred on January 17, 2012, after
the government discovered that Wingo had violated the terms of his pretrial release
by possessing three firearms at his residence. In support of Wingo’s claim that he
forgot about the firearms, Wingo’s wife testified before the magistrate judge that
Wingo suffered from early-onset dementia, which resulted in memory loss,
sleepingwalking, insomnia, and forgetfulness. For example, Mrs. Wingo stated
that Wingo “does things at night and he cannot remember it. He takes things out of
cabinets and it’s just there in the morning when I wake up and he doesn’t
remember doing it.” She also testified that Wingo would often forget where he
was when he was driving, even when he was in his own neighborhood, and that he
would be unable to find his way home. One time, she added, he ran out of gas. As
a result of Wingo’s problems, Mrs. Wingo explained, Wingo’s neurologist had
taken away his driver’s license.
The magistrate judge revoked Wingo’s bail. In his order, the magistrate
judge summarized Mrs. Wingo’s testimony regarding Wingo’s mental state:
“[Mrs. Wingo] explained that [Wingo] suffers from early onset dementia. As a
result of this condition, he suffers from memory problems, sometimes forgetting
where he is or where he is going.”
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6
Wingo appealed his bail revocation to the district judge, who, on de novo
review, affirmed. In doing so, the district judge noted Mrs. Wingo’s testimony that
Wingo suffered from early-onset dementia but discounted its role in Wingo’s
violation of his bond conditions, as Wingo had not “introduced any medical
evidence to support such a conclusion.”
On January 30, 2012, approximately two weeks after Wingo’s bail was
revoked, Wingo filed an emergency motion for adequate medical care. In his
motion, Wingo informed the court that he suffered from a congenital medical
condition that resulted in the surgical implantation of a shunt in his skull, which
required manual fluid draining.2 Although the motion was denied, Wingo’s
counsel explained during the hearing that she filed the motion in part to ensure that
the detention-center physician and Wingo’s surgeon would correspond, as the
medical records indicated that Wingo’s “[c]ognitive [p]erformance showed some
memory deficits,” and she had doubts about Wingo’s ability to properly
communicate his medical needs to the detention-center medical personnel.
Over the next several months, the district court held additional status
conferences. At one, the government stated that it had made a plea offer to Wingo,
2 In 2011, Wingo had a ventriculoperitoneal shunt implanted in an effort to alleviate some
of the cerebral spinal fluid pressure that he experienced as a result of his congenital condition of
craniosynostosis. See infra at 9.
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and Wingo’s counsel indicated that Wingo was willing to accept the agreement but
that she and Wingo needed additional time to review documents prior to
sentencing. The government stresses that at no time during any of these
conferences “did counsel for Wingo suggest that Wingo’s medical condition was
having the effect of rendering him mentally incompetent.”
Wingo and the government eventually reached a Rule 11(c)(1)(C) plea
agreement that stipulated that Wingo would plead guilty to a single count of
conspiracy to commit money laundering (Count 40 of the indictment) if the district
court imposed a sentence of no more than 84 months’ imprisonment.
3
On February 25, 2013, Wingo appeared at a change-of-plea hearing with his
lawyer. At the hearing, the court asked Wingo’s counsel, “To your knowledge, is
he competent to enter a free and voluntary plea of guilty today?” Wingo’s counsel
replied, “Yes, Sir.” The court then asked, “And to your knowledge, does he
understand the consequences of pleading guilty?” Wingo’s counsel again replied,
“Yes, Sir.” Similarly, after the court explained to Wingo all of his rights, Wingo
indicated that he did not have any questions and that he was not confused by
anything said during the hearing. Wingo’s counsel did not add anything on behalf
of Wingo after being provided with the opportunity to do so by the court. The
court then found Wingo “fully competent and capable of entering an informed
3 Otherwise, the charge carried a maximum sentence of 120 months.
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plea” and accordingly accepted his knowing and voluntary guilty plea. The court
adjudged Wingo guilty but did not at that time accept the binding Rule 11(c)(l)(C)
plea agreement.
On August 19, 2013, ten days before sentencing, Wingo’s counsel submitted
a sentencing memorandum requesting a thirty-month sentence. She based her
motion on Wingo’s “diminished mental capacity; and his aberrant behavior in this
case.” In support of the sentencing request, Wingo’s counsel attached exhibits,
including certain reports and video interviews4 prepared by physicians.
C.
Because an understanding of the record evidence regarding Wingo’s health
is crucial to our decision today, we review that information in significant detail.
The medical records and reports attached to Wingo’s sentencing
memorandum included information from these physicians: Michael Foley, M.D., a
radiologist; Jeffrey Danziger, M.D., a forensic psychiatrist; Peter Ash, M.D., the
Chief of Child and Adolescent Psychiatry and the Director of Psychiatry and Law
Service at the Emory University School of Medicine; and Eric L. Mings, Ph.D., a
psychologist. Walter E. Afield, M.D., of the Neuropsychiatric Institute, also
examined Wingo.
4 The video interviews were submitted separately, two days before the sentencing
hearing.
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That information revealed the following about Wingo’s medical condition.
At nine months old, Wingo was diagnosed with a congenital abnormality known as
craniosynostosis. Ordinarily, at birth, the joints between bones in the upper skull
are open, which allows the skull to grow in order to provide space for the
developing brain, but in craniosynostosis, the sutures of the skull are fused at birth.
To address the problem that craniosynostosis presents, generally surgery is
performed in infancy, opening the skull to allow the brain to grow. Wingo, in fact,
had such surgery.
Despite this surgery as an infant, in 2000, an MRI showed that Wingo’s
brain had pulled away from his skull, and mild atrophic changes were present in
the high parietal region. Around that same time, Wingo had two additional
surgeries related to his craniosynostosis.
By 2007, Wingo was undergoing regular spinal taps every four to eight
weeks to relieve his severe cerebral spinal fluid pressure, which generally ran
about twice the normal pressure and sometimes higher.5
According to Wingo’s
physician at that time, Dr. Steven Taraszka, when Wingo presented himself for his
spinal taps, “his thinking [was] very cloudy and he seem[ed] obtunded.” At the
5 Around this time, Wingo was also diagnosed with post-traumatic stress symptoms
relating to recurring memories of sexual abuse as a child. He received out-patient treatment for
that condition.
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end of 2007, Dr. Taraszka stopped practicing, and Wingo had a bad experience
receiving a spinal tap from another doctor, so he ceased having the procedure.
In July 2008, another MRI of Wingo’s brain was performed. Dr. Foley
opined that it demonstrated a “stunning” level of atrophy.
On February 26, 2009, Dr. Afield conducted a neuropsychiatric evaluation
of Wingo. He described Wingo as “a very bad historian.”6
As Dr. Afield
explained, Wingo could remember only one of three objects after five minutes and
was “not able to multitask at all.” He diagnosed Wingo with, among other
ailments, “congenital abnormalities with subsequent brain dysfunction” and
“[c]erebral dysfunction.” Overall, Dr. Afield concluded, “This man is clearly
impaired and I do not see how he is able to run a business. In fact, I am not sure
how he is able to run anything . . . . He apparently is playing with as much of a
deck as he has, but it is not a full deck. He is certainly a rather simple soul in
many ways.”
On March 3, 2009, a Single Photon Emission Computed Tomography
(SPECT) scan of Wingo was performed. It demonstrated large areas of markedly
decreased and abnormal brain activity. Dr. Foley described Wingo's “significant
abnormality” as “one of the worst scans [he had] ever seen in [his] life.” As Dr.
6 Dr. Afield elaborated, “A month ago, he shaved his head. He has been acting rather
bizarrely, really since he took over this position [with AFM]. He has made some rather stupid
decisions. He liked to buy guns for some reason. He bought something like 300 guns and then
opened a store to sell them . . . . That does not seem to make much sense and, as I say, he was a
terrible historian.”
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Ash understood the findings, “the periods of high [cerebral spinal fluid] pressure in
[Wingo’s] enclosed skull compressed the brain tissue, leading to death of nerve
cells.” Dr. Afield similarly construed the SPECT scan to show “brain damage in
the areas that deal with judgment, thinking and concentration. . . . [I]t clearly is
understandable why he would be using bad judgment.”
Dr. Mings conducted neuropsychological testing of Wingo on July 8, 2009.
He also reviewed Wingo’s medical records and interviewed people who interacted
regularly with Wingo to obtain their observations of his behavior, which Dr. Mings
incorporated into his neuropsychological evaluation report. With respect to the
mental status examination that Dr. Mings performed, Dr. Mings interviewed
Wingo; administered several psychological tests on Wingo, including the Test of
Memory Malingering, Trails A and B, the Wisconsin Card Sorting Test, a verbal
fluency task test, and the Minnesota Multiphasic Personality Inventory; and
reviewed the raw data of the Wechsler Adult Intelligence Scale III testing that Dr.
Afield had conducted on Wingo in February 2009.
As for the interviews that Dr. Mings conducted, consistent with her later
testimony at Wingo’s bond-revocation hearing, Wingo’s wife reported to Dr.
Mings that in about 2007, Wingo’s memory problems significantly worsened.
According to her, he would forget where he was going while driving and would
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12
become lost, even in a familiar area, and he had been having difficulty performing
common tasks like signing his name.
Dr. Taraszka, whom Dr. Mings also interviewed in the course of his
evaluation of Wingo, contrasted Wingo’s friendly behavior in the early years of
their relationship with his conduct later in their relationship. He said that while
they used to communicate frequently, Wingo had withdrawn from almost all
communication and had stopped responding to Dr. Taraszka’s telephone calls.
During Dr. Taraszka’s more recent interactions with Wingo, Dr. Taraszka found
that Wingo could “make small talk but that is where it ends now,” and he described
Wingo as “appearing spac[]y” during their last interaction.
Pastor Johnny Willis, who had worked with Wingo at AFM, observed
“rather dramatic changes” in Wingo, in that, uncharacteristically, Wingo started to
“forget about things despite being reminded several times during the day and failed
to follow through with commitments that he ma[de].” Willis further explained that
Wingo’s conversations “began to be scattered and he was not able to focus on the
topic at hand.”
Mike Benton, who also worked at AFM, noticed similar problems, reporting
that in the later years of his relationship with Wingo, Wingo would at times “not
pay[] attention to people [and would] change gears and walk off from
conversations.” The others who Dr. Mings interviewed told of similar problems.
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Based on the entirety of his evaluation, Dr. Mings found that Wingo showed
“clear evidence of significant cognitive impairment which is very likely the result
of a progressive dementia associated with the effects of his lifelong
craniosynostosis and numerous recent complications, particularly the effects of the
inability to control his cerebral spinal fluid pressure.” Dr. Mings commented that
Wingo’s problems manifested themselves in “significant memory problems,”
problems “maintaining attention and focus for more than a short period of time,”
and problems with “conceptual . . . abilities.” As a result, in 2009, Dr. Mings
diagnosed Wingo with, among other ailments, dementia, and opined,
I do have significant concerns about his competency to
proceed if charges are ultimately filed against him. I do
not doubt that he has the capacity to understand the basic
adversary nature of the legal process and roles of the
various participants. However, I have serious
reservations about his capacity to meaningfully
participate in his defense due to his unstable medical and
psychiatric condition. I think it would be extremely
difficult to envision him consistently and actively
participating with his attorneys in planning a defense to a
complicated legal situation given the severe chronic
debilitating headaches and the cognitive deficits observed
by others and evident on neuropsychological assessment.
On October 13, 2010, Dr. Ash prepared his report of his examination of
Wingo and his medical records. Dr. Ash considered several things in forming his
opinion: a DVD containing interviews of Dr. Danziger, Dr. Mings, and Dr. Foley;
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medical records from Dr. Mings, Dr. Afield, Dr. Taraszka, Dr. Foley, Dr. Claire,7
and Daniel Barrow, M.D.; interviews of Wingo; and interactions that he observed
occurring between Wingo and Richard Rhodes (Wingo’s attorney before Wingo
was indicted) that Dr. Ash observed. Based on his evaluation, Dr. Ash concluded
that, among other problems, Wingo suffers from dementia and “craniosynostosis
associated with blockage of normal [cerebral spinal fluid] drainage resulting in
hydrocephalus with findings of significant brain atrophy and memory impairment.”
Although Dr. Ash stated that Wingo understood the nature of the
proceedings against him, Dr. Ash observed that Wingo gave “vague responses” to
Rhodes's questions and had difficulty providing details about financial transactions
that potentially related to the government’s investigation. Dr. Ash also reported
that Wingo had authentic memory and attention problems and ultimately
concluded that although Wingo would “probably be competent to stand trial” if the
case involved “a relatively short trial that was focused on a single event,” “for a
complex case that could result in an extended trial, [Wingo’s] cognitive limitations
become much more significant.” Dr. Ash opined,
[Wingo’s] memory impairments severely impair his
ability to assist his attorney in understanding details of
transactions and conversations in preparing for trial, they
would impair Mr. Wingo’s testifying about such details,
7 The file does not appear to contain Dr. Claire’s first name or his or her degree. Dr.
Claire’s records pertain to the period from 2004 through 2006.
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and they would impair his commenting to his attorney on
testimony that others might give on those issues.
***
With regard to Mr. Wingo’s impairments in sustained
attention during an extended trial, in my opinion they are
of such severity that he would be unable to attend
sufficiently to much of the trial and so would be unable
to effectively assist his attorney. In my opinion, to a
reasonable degree of medical certainty, at the time of the
evaluation, Mr. Wingo was not competent to stand trial in
a trial that would require sustained attention over several
weeks duration.
In addition to the medical records and reports reviewed above, Wingo’s
counsel attached to Wingo’s sentencing memorandum several letters from friends,
family, and business associates. Many of the letters expressed observations that, in
the prior few years, Wingo had markedly changed. For instance, according to
Terry Morrow, a friend of Wingo’s, at some point after 2005, Wingo's health
began to deteriorate, and he became “more and more irrational and self-serving.”
Mark Barclay, another friend, stated that Wingo began to exhibit “increasing
confusion and disorientation,” as well as a “lack of concentration.” Zona HayesMorrow, who worked with Wingo when her church became a distribution site for
AFM, wrote that after Wingo developed health problems, he became “increasingly
emotionally and mentally volatile and was making poor decisions personally and
professionally.” Similarly, William Todd, who worked with Wingo at AFM,
reported that Wingo would “get forgetful and disoriented.” And Lillian Roxanna
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Brogan, another AFM colleague, recounted a “change” in Wingo since 2007,
explaining that she “first noticed that he was forgetting a lot of stuff, some minor
as well as major. . . . [H]e started to forget things he said or did that I witnessed.”
Wingo’s counsel also included a letter submitted by Wingo’s wife, which echoed
the testimony that she had provided at Wingo’s bond-revocation hearing. Other
friends and family noted that Wingo's medical condition affected his mental
capacity, judgment, memory, and behavior.
Prior to the sentencing hearing, the district court also received and reviewed
a pre-sentence investigation report, which summarized Wingo’s craniosynostosis,
the physical and mental problems he experienced as a result of the condition, and
the findings by Dr. Mings, Dr. Foley, and Dr. Afield.
D.
The sentencing hearing occurred on August 29, 2013. At the hearing, the
district court acknowledged that it had received Wingo’s memorandum, including
the attached medical records, evaluations, and letters, and the videotaped medical
interviews. The district judge stated, “I have taken into consideration [Wingo’s]
medical condition. I think I understand it. However, I don’t think that serves as a
basis to reduce his sentence in this case. I think he can be taken care of in the
prison sentence.” The court then sentenced Wingo to 84 months, the maximum
allowed by the conditional Rule 11(c)(1)(C) plea agreement. The district court
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entered final judgment on September 16, 2013. On September 27, 2013, Wingo
timely filed a notice of appeal.8
He now argues that the government violated his
statutory and constitutional procedural-due-process rights9 by failing to request a
competency hearing, and alternatively, that the court violated his statutory dueprocess rights by failing to sua sponte order a competency hearing, because both
the government and the court had reasonable cause to doubt his competence.
II.
Competence to proceed to trial or to enter a guilty plea, United States v.
Rodriguez, 751 F.3d 1244, 1252 (11th Cir. 2014), requires the defendant to possess
the “capacity to understand the nature and object of the proceedings against him, to
consult with counsel, and to assist in preparing his defense . . . .” Drope v.
Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903 (1975). Every defendant has a
substantive fundamental right under the Due Process Clause not to be tried or
convicted while incompetent. See Cooper v. Oklahoma, 517 U.S. 348, 354, 363,
116 S. Ct. 1373, 1376, 1381 (1996).
8 Wingo's sentence appeal waiver cannot bar his claim that he was incompetent to plead
guilty and face sentencing. Wingo' s appeal waiver itself would be invalid if he lacked the mental
capacity to understand and appreciate the nature and consequences of the plea agreement. See
Carroll v. Beto, 421 F.2d 1065, 1067 (5th Cir. 1970) (holding that an incompetent defendant
cannot waive his constitutional due process rights, "by guilty plea or otherwise"). Pursuant to
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), opinions of the Fifth
Circuit issued prior to October 1, 1981, are binding precedent in the Eleventh Circuit.
9 Wingo’s brief states that he appeals based on a violation of his procedural due-process
rights. We interpret Wingo’s appeal as asserting both constitutional and statutory violations.
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At least two major reasons for this right have been advanced. First, without
competence, a defendant cannot meaningfully exercise his other constitutionally
guaranteed rights. See Cooper, 517 U.S. at 354, 116 S. Ct. at 1376 (quoting
Riggins v. Nevada, 504 U.S. 127, 139, 112 S. Ct. 1810, 1817 (1992) (Kennedy, J.,
concurring in the judgment) (“Competence to stand trial is rudimentary, for upon it
depends the main part of those rights deemed essential to a fair trial, including the
right to effective assistance of counsel . . . .”)). And second, trying an incompetent
defendant is like trying an absent defendant; “the mentally incompetent defendant,
though physically present in the courtroom, is in reality afforded no opportunity to
defend himself.” Drope, 420 U.S. at 171, 95 S. Ct. at 903-04 (citation and internal
quotation marks omitted). In other words, it is fundamentally unfair to try an
incompetent defendant. See Cooper, 517 U.S. at 364, 116 S. Ct. at 1382. So our
Constitution “jealously guard[s]” an incompetent criminal defendant’s fundamental
right not to stand trial or be convicted. See id. at 363, 116 S. Ct. at 1381 (quoting
Jacob v. New York City, 315 U.S. 752, 752-53, 62 S. Ct. 854, 854-55 (1942)
(internal quotation marks omitted)).
It does this through not only the substantive right not to be tried or convicted
while incompetent but also the procedural right under the Due Process Clause to
“adequate” procedures to protect the right not to be tried or convicted while
incompetent. Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 838 (1966); see
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also James v. Singletary, 957 F.2d 1562, 1569-71 (11th Cir. 1992). To comply
with a defendant’s procedural right, once the court learns of information that raises
a “bona fide doubt regarding [the defendant’s] competence,” James, 957 F.2d at
1570, the court must apply adequate procedures to ascertain whether the defendant
is competent to proceed to trial or the entry of a guilty plea. See Pate, 383 U.S.
375, 384-86, 86 S. Ct. 836, 841-42. And it must do so even in the absence of a
demand by the defendant to determine his competency. Cooper, 517 U.S. at 354
n.4, 116 S. Ct. at 1377 n.4; Pate, 383 U.S. at 384, 86 S. Ct. at 841. For, as we have
discussed, the right to be competent at trial and when convicted—whether through
trial or plea—is fundamental, see Cooper, 517 U.S. at 354, 116 S. Ct. at 1376-77,
and an incompetent defendant is, by definition, not capable of knowingly and
intelligently waiving his right to a determination of competency, see Pate, 383
U.S. at 384, 86 S. Ct. at 841.
Title 18, United States Code, Section 4241 sets forth the procedures for a
federal court to follow once it has reason to believe that a defendant may be
incompetent to proceed to trial or to be convicted. In pertinent part, it provides,
Motion to determine competency of defendant.—At
any time after the commencement of a prosecution for an
offense and prior to the sentencing of the defendant, . . .
the defendant or the attorney for the Government may
file a motion for a hearing to determine the mental
competency of the defendant. The court shall grant the
motion, or shall order such a hearing on its own motion,
if there is reasonable cause to believe that the defendant
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may presently be suffering from a mental disease or
defect rendering him mentally incompetent to the extent
that he is unable to understand the nature and
consequences of the proceedings against him or to assist
properly in his defense.
18 U.S.C. § 4241(a) (emphasis added).
We begin our statutory analysis with the plain language of the statute; since
it is clear, we also end our analysis there. United States v. Ron Pair Enters., Inc.,
489 U.S. 235, 241, 109 S. Ct. 1026, 1030 (1989). The plain language of Section
4241(a)—the court “shall order . . . a hearing on its own motion”—is unambiguous
about the court’s obligation to sua sponte hold a hearing if it has “reasonable
cause” to believe that the defendant “may” be incompetent; the court must conduct
a hearing under those circumstances. Tiller v. Esposito, 911 F.2d 575, 576 (11th
Cir. 1990); see also Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523
U.S. 26, 35, 118 S. Ct. 956, 962 (1998) (citation omitted) (the “mandatory ‘shall[]’
. . . normally creates an obligation impervious to judicial discretion.”).
The only question that Section 4241(a) does not answer about the court’s
duty to sua sponte conduct a hearing is what constitutes “reasonable cause to
believe that a defendant may [be incompetent].” But our caselaw does.
We have identified three factors to be considered in determining whether
information that a court has establishes a “bona fide doubt regarding the
defendant’s competence”: “(1) evidence of the defendant’s irrational behavior; (2)
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21
the defendant’s demeanor at trial; and (3) prior medical opinion regarding the
defendant’s competence to stand trial.” Tiller, 911 F.2d at 576. And we have
found that the “bona fide doubt” standard satisfies Section 4241(a)’s “reasonable
cause” requirement. United States v. Nickels, 324 F.3d 1250, 1251-52 (11th Cir.
2003) (per curiam).
In explaining the “bona fide doubt” inquiry, the Supreme Court has
emphasized that a court must consider the aggregate of evidence pertaining to all
three prongs and not evaluate each prong in a vacuum. Drope, 420 U.S. at 180, 95
S. Ct. at 908. Nevertheless, because “[t]here are, of course, no fixed or immutable
signs which invariably indicate the need for further inquiry to determine fitness to
proceed,” evidence under a single prong of the test—even standing alone—“may,
in some circumstances, be sufficient” to establish a bona fide doubt about a
defendant’s competence. Id.
We review for abuse of discretion a district court’s failure to sua sponte
order a hearing on the defendant’s competency under Section 4241. United States
v. Williams, 468 F.2d 819, 820 (5th Cir. 1972).
10
10 Though Williams construed an earlier version of the law currently codified at § 4241,
both iterations of the statute impose the same duty on the district court to inquire sua sponte into
a defendant’s mental competency. See 18 U.S.C. § 4244 (1949) (current version at 18 U.S.C. §
4241) (“[U]pon its own motion [to determine competency of the defendant to proceed], the court
shall cause the accused, whether or not previously admitted to bail, to be examined as to his
mental condition by at least one qualified psychiatrist, who shall report to the court.”).
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Here, the combined evidence under two of the three prongs created
reasonable cause to believe that Wingo was incompetent to proceed to trial or to
plead guilty. First, the evidence concerning prior medical opinion strongly
suggested that Wingo might not be competent to assist counsel. Every physician
who examined Wingo’s brain from 2007 on found extensive organic brain damage,
as a result of Wingo’s craniosynostosis and the complications arising from it.
Indeed, about the organic damage alone, Dr. Foley described Wingo’s brain as
showing “significant abnormality” and “stunning” atrophy, and he opined that
Wingo’s SPECT exam was “one of the worst scans [he had] ever seen in [his]
life.”
And the physicians’ concerns did not end with their analysis of the physical
and organic condition of Wingo’s brain. At least three medical doctors expressed
serious doubts about Wingo’s competence. Both Dr. Ash and Dr. Mings
specifically voiced concern about Wingo’s ability to assist counsel in a complex
case, which Wingo’s—a case that involved multiple counts concerning a fraud that
the FBI and IRS had investigated for three years and had collected hundreds of
millions of documents in support of the government’s case—clearly was.
Similarly, based on his professional interactions with Wingo, Dr. Afield opined
that Wingo was “clearly impaired” and that he was not “playing with . . . a full
deck.” These medical opinions loudly signaled that Wingo might well not have
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been able to “assist properly” in his defense in this case, which both the
government and defendants agreed was complex. Nor did any medical evidence of
record at all contradict the multiple doctors’ findings regarding Wingo’s physical
and mental condition. And the medical evidence filled in a critical gap that the
district court had pointed out was previously lacking when it rejected Wingo’s
appeal from the revocation of his bail because Wingo had not “introduced any
medical evidence . . . .”
Second, evidence of irrational behavior under the “bona fide doubt” test
provides real-world support for the doctors’ findings and conclusions. Beginning
with Wingo’s bond-revocation hearing, the court succinctly summarized Mrs.
Wingo’s testimony, noting that she stated that she “live[d] in a house with a man
who . . . admittedly has early onset dementia, does things at night he can’t even
remember doing, . . . sometimes he forgets where he is, that he’s taking narcotic
medication, psychotropic medication, Percocet, Prozac, Ambien, Baclofen,
Diamox, and he is living in a house where there are guns, knives and ammunition
strewn about the house.” Additionally, Wingo’s wife testified that Wingo could
not find his way home in a neighborhood where he had lived for years and that
Wingo’s neurologist had taken away his driver’s license for six months while he
attempted to figure out what was causing Wingo’s irregular behaviors.
USCA11 Case: 13-14435 Date Filed: 06/16/2015 Page: 23 of 28
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Mrs. Wingo was not alone in her observations of Wingo’s unusual conduct.
Numerous others who had had regular interaction with Wingo reported that, in
recent years, Wingo had become “more and more irrational,” had exhibited
“increasing confusion and disorientation,” had been extremely forgetful, and had
become quite withdrawn.
On this record, even Wingo’s apparently normal demeanor in his short and
limited court appearances—the last of the prongs under the “bona fide doubt”
test—could not in this complex case sufficiently ameliorate the reasonable cause to
believe that Wingo might be incompetent to plead guilty, created by the strong
medical evidence and corroborated by multiple witnesses’ anecdotes about their
real-world interactions with Wingo. See, e.g., Pate, 383 U.S. at 385-86, 86 S. Ct.
at 842 (“The Supreme Court of Illinois held that the evidence here was not
sufficient to require a hearing in light of the mental alertness and understanding
displayed in Robinson’s ‘colloquies’ with the trial judge. . . . But this reasoning
offers no justification for ignoring the uncontradicted testimony of Robinson’s
history of pronounced irrational behavior. While Robinson’s demeanor at trial
might be relevant to the ultimate decision as to his sanity, it cannot be relied upon
to dispense with a hearing on that very issue.”).
Nor, under these circumstances, could Wingo’s counsel’s failure to raise
Wingo’s competency relieve the court of its responsibility to do so. While we have
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said that counsel’s failure to raise the competency issue can be persuasive evidence
that competency is not in doubt,11 United States v. Rodriguez, 799 F. 2d 649, 655
(11th Cir. 1986) (per curiam), it cannot be conclusive evidence that competency is
not in doubt. If it were, the mandatory requirement in § 4241 for a court to sua
sponte address the issue of a defendant’s competency would be meaningless
because a court would never be obligated to consider the issue if defense counsel
did not first raise it. But “we avoid statutory constructions that render provisions
meaningless.” Bouchard Transp. Co., Inc. v. Updegraff, 147 F.3d 1344, 1351
(11th Cir. 1998) (citation omitted).
Though cases where counsel fails to bring the competency issue to the
court’s attention and the court abuses its discretion by not sua sponte raising it on
its own are perhaps rare, this matter—with copious, objective medical evidence of
organic brain damage, as well as medical and lay evidence suggesting
corresponding mental incompetence—is one of those cases. Indeed, the robust
record evidence of possible incompetency necessarily eclipses counsel’s failure to
raise Wingo’s competency.
11 Section 4241(a) provides that “the defendant . . . may file a motion for a hearing to
determine the mental competency of the defendant.” So defense counsel who has reasonable
cause to believe that her client may be incompetent should certainly bring her concern to the
court’s attention, but if she does not, where reasonable cause exists to believe that a defendant
may not be competent, the court acts as a safety net and must hold a hearing on the defendant’s
competence.
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We have explained that, under these circumstances, the proper remedy is to
remand the case to the district court for a determination of whether a meaningful
inquiry may be made into the defendant’s competency at the time of the guilty
plea. Acosta v. Turner, 666 F.2d 949, 956 (5th Cir. Unit B 1982)12
; United States
v. McEachern, 465 F.2d 833, 839-40 (5th Cir. 1972). To make this evaluation, the
district court should consider “whether the ‘quantity and quality of available
evidence [of the defendant’s competency at the time of the trial or guilty plea] is
adequate to arrive at an assessment that could be labelled as more than mere
speculation.’” Martin v. Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978) (citation
omitted). If a meaningful inquiry into Wingo’s competency can be conducted, the
district court must determine Wingo’s competency at the time that he pled guilty.
Id. If not, or if after a meaningful hearing Wingo is found to have been
incompetent at the time of his guilty plea, the guilty plea must be vacated, subject
to the government’s right to try Wingo at such time that Wingo is competent. See
United States v. Makris, 483 F.2d 1082, 1092 (5th Cir. 1973). In remanding this
case, we opine on neither whether a meaningful nunc pro tunc inquiry into
Wingo’s competency at the time of his guilty plea may be made nor whether, if so,
Wingo was competent. Rather, we hold simply that the evidence in the record
12 Decisions rendered by Unit B of the former Fifth Circuit constitute binding precedent
in the Eleventh Circuit, regardless of the date of issuance. Stein v. Reynolds Secs., Inc., 667 F.2d
33, 34 (11th Cir. 1982).
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before sentencing presented reasonable cause to believe that Wingo might have
been incompetent to assist in his own defense, so it necessitated a hearing under §
4241.
We recognize that the district court could not possibly have known the
extent of Wingo’s mental health until counsel filed Wingo’s sentencing
memorandum containing the majority of the evidence relevant to his competency.
And even then, the focus of the sentencing memorandum was directed towards
obtaining a reduced sentence for alleged diminished capacity. So we can
understand how this issue may have escaped the district court’s attention.
13
Nevertheless, that does not make the district court’s failure to sua sponte inquire
into Wingo’s competency any less an abuse of discretion.
III.
In sum, we hold that the court abused its discretion in not sua sponte
conducting a competency hearing because reasonable cause to believe that Wingo
might be incompetent exists on this record. We remand the case to the district
13 The government, on the other hand, well before indictment did possess the records that
Wingo’s trial counsel ultimately attached to the sentencing memorandum. We know this
because Richard Rhodes, Wingo’s attorney until just before indictment, attested that he provided
them to the government at that time. Rhodes also specifically raised Wingo’s competency with
the government and even offered to have Wingo examined at a federal facility, at Wingo’s
expense. While the record shows that the government passed on copies of Wingo’s records to
Wingo’s court-appointed attorney after she was appointed to represent Wingo, the record
contains no evidence that she was aware of Rhodes’s offer. Wingo has asserted that, under these
circumstances, the government was required to raise the competency issue with the court.
Because we decide this case on the court’s obligations under § 4241, we do not opine on what, if
any, statutory or constitutional responsibilities the government or Wingo’s counsel may have had
to raise the competency issue.
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court so that it can determine whether Wingo’s competency can be evaluated nunc
pro tunc, and if so, for an assessment of his competency at the time of his guilty
plea and sentencing. If Wingo is determined to have been incompetent, or if a
nunc pro tunc evaluation cannot be made, Wingo’s conviction and sentence must
be vacated, subject to the government’s right to try him should he become
competent. On the other hand, if Wingo is determined to have been competent,
then his conviction and sentence must be affirmed.
REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION.
USCA11 Case: 13-14435 Date Filed: 06/16/2015 Page: 28 of 28 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-14-40671/USCOURTS-ca5-14-40671-0/pdf.json | [
[
"Roberto Almazan-Rodriguez",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40671
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERTO ALMAZAN-RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-1902-2
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Roberto Almazan-Rodriguez 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). Almazan-Rodriguez 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
June 3, 2015
Lyle W. Cayce
Clerk
Case: 14-40671 Document: 00513065309 Page: 1 Date Filed: 06/03/2015
No. 14-40671
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: 14-40671 Document: 00513065309 Page: 2 Date Filed: 06/03/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-15-50756/USCOURTS-ca5-15-50756-0/pdf.json | [
[
"Angel Vinicio Pina",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50756
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANGEL VINICIO PINA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-181-5
Before JONES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Angel Vinicio Pina
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). Pina 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
June 21, 2016
Lyle W. Cayce
Clerk
Case: 15-50756 Document: 00513557897 Page: 1 Date Filed: 06/21/2016
No. 15-50756
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: 15-50756 Document: 00513557897 Page: 2 Date Filed: 06/21/2016 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_06-cv-04961/USCOURTS-cand-3_06-cv-04961-2/pdf.json | [
[
"Northwest Administrators, Inc.",
"Plaintiff"
],
[
"San Bruno Garbage Co., Inc.,",
"Defendant"
]
] | 1
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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
NORTHWEST ADMINISTRATORS, INC.,
Plaintiff,
v.
SAN BRUNO GARBAGE CO., INC.,
Defendant.
/
No. C-06-4961 MMC
ORDER DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT;
GRANTING DEFENDANT’S CROSSMOTION FOR SUMMARY JUDGMENT
(Docket Nos. 12, 20)
Before the Court are two motions, each filed April 20, 2007: (1) plaintiff Northwest
Administrators, Inc.’s (“Northwest”) motion for summary judgment, and (2) defendant San
Bruno Garbage Co., Inc.’s (“San Bruno”) cross-motion for summary judgment. San Bruno
filed opposition to Northwest’s motion, to which Northwest filed a reply. Northwest filed
opposition to San Bruno’s cross-motion, to which San Bruno filed a reply. The matter came
on regularly for hearing on June 1, 2007. Michael Carroll appeared on behalf of Northwest
and Michael Hoffman appeared on behalf of San Bruno. Having considered the papers
filed in support of and in opposition to the motions, as well as the arguments of counsel at
the June 1, 2007 hearing, the Court rules as follows.
BACKGROUND
In the instant action, brought pursuant to § 502 of the Employee Retirement Income
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1
ERISA § 502 provides, inter alia, that a fiduciary may bring suit to enforce an
employer’s obligation to make contributions to a fund. See 29 U.S.C. §§ 1132(g)(2), 1145.
Section 301 of the NLRA provides that “[s]uits for violation of contracts between an
employer and a labor organization . . . may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the amount in controversy or
without regard to the citizenship of the parties.” See 29 U.S.C. § 185. Recovery of
delinquent fund contributions “is available under either statute.” See Pierce County Hotel
Employees and Restaurant Employees Health Trust v. Elks Lodge, B.P.O.E. No. 1450, 827
F.2d 1324, 1327 (9th Cir. 1987).
2
Rather than attaching exhibits to accompanying declarations, the parties have
submitted a “common set of exhibits.” (See Notice of Manual Filing.) Accordingly, the
Court frequently will cite herein to exhibits without also citing to a declaration.
2
Security Act of 1974 (“ERISA”) and § 301 of the National Labor Relations Act (“NLRA”),1
Northwest contends San Bruno breached a collective bargaining agreement and certain
Trust Agreements by failing to make the requisite contributions to the Western Conference
of Teamsters Pension Trust Fund (“Fund”) on behalf of San Bruno’s employees. (See
Compl. ¶ 1.) Northwest is the administrator of the Fund. (See id.) The sole issue raised in
the instant motions is whether San Bruno is required, under the relevant agreements, to
make contributions to the Fund on behalf of its employees who are members of the
Sanitary Truck Drivers and Helpers Union Local 350 (“Local 350") while such employees
are receiving workers’ compensation payments.
San Bruno and Local 350 are parties to a collective bargaining agreement (“CBA”).
(See Sander Decl. ¶ 3 and Ex. 1.)2
The CBA pertinent to the instant action covers the
period September 1, 2000 through August 31, 2005. (See id.) The CBA, as initially
drafted, provided that San Bruno “shall contribute to the [Fund], on a straight-time hourly
basis, starting with the first compensable hour to a maximum of 173 hours per employee
each month[.]” (See id. Ex. 1 at 379.) The CBA further provided that “[f]orty (40) hours of
work shall constitute the maximum straight time work week,” excluding “the number of
hours of work any employee may perform at overtime wage rates.” (See id. at 380.) The
CBA did not expressly address whether San Bruno must pay contributions to the Fund for
injured employees who are receiving workers’ compensation payments.
In a letter dated April 26, 2001, the Western Conference of Teamsters Pension Trust
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(“Trust”) informed San Bruno and Local 350 that the CBA’s “monthly maximum on pension
contributions of 173 hours” was not acceptable to the Trust because some months include
more than 173 hours of straight time. (See Ex. 2.) The Trust noted that, pursuant to its
guidelines, a CBA will not be acceptable to the Trust if it contains: “Provisions that permit
contributions on a basis that will produce a contribution less than all straight time hours
worked by the employee, provided that for purpose of this rule paid vacation and paid
holiday hours shall be included in straight time hours worked.” (See id.) The Trust set forth
therein three alternative examples of “sample language” that would amend the CBA to the
Trust’s satisfaction. (See id.) In July 2001, San Bruno and Local 350 entered into a Letter
of Understanding, which amended the CBA by adopting the following language, which is
the second of the three acceptable alternatives proposed by the Trust in its April 26, 2001
letter:
The Employer shall make contributions to the [Fund] on behalf of each
member of the bargaining unit from the first compensable hour. Contributions
shall be made on all straight-time hours worked to a monthly maximum of 184
hours per month.
Time paid for but not worked, such as holiday, vacation, and sick pay shall be
considered as time worked for the purpose of this section.
(See id. at Ex. 3.) The amended CBA does not expressly address whether San Bruno
must pay contributions to the Fund for injured employees who are receiving workers’
compensation payments.
In 2005, Northwest conducted an audit of San Bruno’s books and records for the
period December 1, 2003 through October 31, 2004 and determined that San Bruno had
underpaid its contributions to the Fund in several respects and, in particular, that San
Bruno had failed to pay contributions on behalf of employees who were receiving workers’
compensation payments. (See Calleros Decl. ¶¶ 3, 5-7 and Ex. 11.) In a letter to the
Trust, dated April 20, 2005, San Bruno disputed the contention that the CBA requires
contributions on behalf of employees who are receiving workers’ compensation payments.
(See Ex. 13.) In a letter dated April 20, 2006, Michael Sander, the Trust’s Administrative
Manager, denied San Bruno’s “appeal” of the finding that San Bruno owed contributions for
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employees who were receiving workers’ compensation payments. (See Ex. 15.) In a letter
dated May 12, 2006, San Bruno appealed Sander’s decision to the Board of Trustees of the
Fund (“Board”). (See Ex. 16.) On May 31, 2006, the Board denied the appeal. (See Ex.
18 at 004.)
On August 16, 2006, Northwest filed the instant action.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment as
to “all or any part” of a claim “shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” See Fed. R. Civ. P. 56(b), (c). Material facts are those that
may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute as to a material fact is “genuine” if the evidence is such that “a
reasonable jury could return a verdict for the nonmoving party.” See id. The Court may not
weigh the evidence. See id. at 255. Rather, the nonmoving party’s evidence must be
believed and “all justifiable inferences must be drawn in [the nonmovant’s] favor.” See
United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989)
(en banc) (citing Liberty Lobby, 477 U.S. at 255).
The moving party bears the initial responsibility of informing the district court of the
basis for its motion and identifying those portions of the pleadings, depositions,
interrogatory answers, admissions and affidavits, if any, that it contends demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving
party’s burden is discharged when it shows the court there is an absence of evidence to
support the nonmoving party’s case. See id. at 325.
Where the moving party “bears the burden of proof at trial, he must come forward
with evidence which would entitle him to a directed verdict if the evidence went
uncontroverted at trial.” See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)
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(citations omitted); see also Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir. 1986)
(holding when plaintiff moves for summary judgment on an issue upon which he bears the
burden of proof, “he must establish beyond peradventure all of the essential elements of
the claim . . . to warrant judgment in his favor.”) (emphasis in original).
A party opposing a properly supported motion for summary judgment “may not rest
upon the mere allegations or denials of [that] party’s pleading, but . . . must set forth
specific facts showing that there is a genuine issue for trial.” See Fed. R. Civ. P. 56(e); see
also Liberty Lobby, 477 U.S. at 250. The opposing party need not show the issue will be
resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-49. All that is
necessary is submission of sufficient evidence to create a material factual dispute, thereby
requiring a jury or judge to resolve the parties’ differing versions at trial. See id.
DISCUSSION
A. Standard of Review
As an initial matter, the parties dispute the degree of deference, if any, the Court
must give to the Trust’s conclusion that the CBA requires San Bruno to make contributions
on behalf of employees who are receiving workers’ compensation payments.
In support of its argument that the Court should review the Trust’s construction of
the CBA for abuse of discretion, Northwest relies largely on cases in which ERISA benefits
determinations were at issue. A court reviews a denial of benefits for abuse of discretion,
however, only where “the benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the plan.” See
Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Here, there is no
analogous contractual language granting the Trust discretionary authority to construe the
terms of the CBA. In particular, the CBA itself contains no language addressing the
manner in which San Bruno and the Trust are to resolve a dispute between themselves
with respect to San Bruno’s obligations under the CBA to make contributions to the Fund.
Although Northwest relies on language from the Agreement and Declaration of Trust
of the Fund (“Trust Agreement”), to which agreement San Bruno and Local 350 are parties,
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(see Exs. 4-5), such reliance is misplaced. For example, although Article V § 1(c) of the
Trust Agreement grants the Trust “the power . . . to . . . [c]onstrue the provisions of [the
Trust] Agreement . . . and the Pension Plan and the terms used therein,” and further
provides that “any construction adopted by the Trustees in good faith shall be binding upon
the Unions, the Employers, the Employees, and their beneficiaries,” (see Ex. 5 Art. V § 1(c)
at 7), such language does not grant the Trust discretionary authority to construe the
provisions of the CBA. Likewise, although the Trust Agreement authorizes the Trustees to
“develop procedures to be followed by Employers in reporting contributions made on behalf
of Employees,” to “develop procedures for the establishment of credited service of
Employees, including the means of affording Employees and Employers the opportunity to
object thereto, and to establish such facts conclusively,” and to “make determinations which
shall be final and binding upon all parties as to the rights of any Employee and any
beneficiary to benefits, including any rights any individual may have to request a hearing
with respect to any such determination,” (see id. Art. VII(a), (b), and (d) at 10), such
language does not purport to grant the Trust discretion to interpret the language of the
CBA.
Northwest’s reliance on Clark v. Washington Teamsters Welfare Trust, 8 F.3d 1429
(9th Cir. 1993) and Board of Trustees of the Watsonville Frozen Food Welfare Trust Fund v.
California Cooperative Creamery, 877 F.2d 1415 (9th Cir. 1989) likewise is misplaced. In
Clark, the Ninth Circuit reviewed a trust’s interpretation of a CBA for abuse of discretion
because the trust agreement included the following provision: “Any questions arising in
connection with the performance of the provisions of this Trust Agreement not hereto
specifically provided for shall be left to the sole discretion of the Trustees.” See id. The
Ninth Circuit held the issue before it “pose[d] a question arising in connection with the
performance of the provisions of the Trust, and questions of the interpretation of such
language are not specifically provided for.” See id. Here, however, there is no “catch-all”
discretionary language in the Trust Agreement comparable to that at issue in Clark. In
California Cooperative Creamery, the trust agreement and CBA at issue therein were
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treated differently with respect to deference. Although the Ninth Circuit reviewed the trust’s
construction of the trust agreement for abuse of discretion, see id. at 1420, it did not defer
to the trust’s construction of the CBA, see id. at 1425-27. Here, as noted, the issue is not
one of construction of a trust agreement, but construction of a CBA.
As San Bruno observes, the Ninth Circuit, in ERISA actions, repeatedly has held
construction of a CBA is a matter of law that is reviewed de novo, albeit without expressly
stating that a trust’s construction of a CBA is not entitled to deference. See, e.g., Santa
Monica Culinary Welfare Fund v. Miramar Hotel Corp., 920 F.2d 1491, 1493 (9th Cir. 1990)
(citing Operating Engineers Pension Trusts v. B & E Backhoe, Inc., 911 F.2d 1347, 1351
(9th Cir. 1990)) (“We review de novo the construction of collective bargaining agreements”);
Operating Engineers, 911 F.2d at 1351 (holding “district court’s interpretation of a
contractual provision is a question of law reviewed de novo”); Pierce County Hotel
Employees and Restaurant Employees Health Trust v. Elks Lodge, B.P.O.E. No. 1450, 827
F.2d 1324, 1327 (9th Cir. 1987) (interpreting de novo CBA in ERISA collection action for
unpaid contributions). As one district court has observed, “[w]hile it makes sense for an
employer to grant broad authority to fund trustees to resolve disputes between its
employees and the fund, it makes little sense for an employer to do the same when it
comes to determining the employer’s own liabilities to the fund[.]” See Roca v. Westbury
Transport Inc., 19 F. Supp. 2d 44, 50 (E.D.N.Y. 1998). Because such discretion may
permit a trust “to increase the size of contribution obligations of employers to levels greater
than they or the union, the original parties to the bargaining agreement, had agreed to or
contemplated[,] [o]nly an explicit provision in the CBA should permit such a result.” See id.
at 50.
Here, as there is no provision in the CBA or the Trust Agreement that grants
Northwest discretionary authority to interpret the terms of the CBA, the Court will interpret
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In light of this ruling, the Court does not reach San Bruno’s contention that the
Trust abused its discretion by conducing a biased review of San Bruno’s arguments on
appeal.
8
the CBA de novo.3
B. Construction of CBA
“To ascertain the meaning of [a] collective bargaining agreement, [courts] first
examine its express written terms.” Northwest Administrators, Inc. v. B.V. & B.R., Inc., 813
F.2d 223, 225 (9th Cir. 1987). As noted, prior to the adoption of the Letter of
Understanding, Article C § 4(b) of the CBA provided that San Bruno was required “to
contribute to the [Fund], on a straight-time hourly basis, starting with the first compensable
hour to a maximum of 173 hours per employee per month.” (See Ex. 1 Art. C § 4(b).) The
July 2001 Letter of Understanding between San Bruno and Local 350 amended that
language to provide that “[c]ontributions shall be made on all straight-time hours worked to
a monthly maximum of 184 hours per month,” and that “[t]ime paid for but not worked, such
as holiday, vacation and sick pay shall be considered as time worked[.]” (See Ex. 3.) The
effect of the amendment was to change San Bruno’s obligation with respect to the number
of hours per month for which contributions were required; it did not change San Bruno’s
obligation with respect to the type of hours for which contributions were required. Nothing
in the amendment itself or the letter in which it was proposed suggests otherwise, (see Ex.
2), and, at the June 1, 2007 hearing, Northwest agreed that the obligation under Article C §
4(b) with respect to the type of hours for which contributions are required remained
unchanged by the Letter of Understanding.
As noted, both the CBA as initially drafted and the Letter of Understanding require
the employer to make contributions to the Fund for each “compensable hour.” (See Ex. 1
Art. C § 4(b); Ex. 3.) The Court finds the plain meaning of “compensable hour” is an hour
for which the employee is paid by the employer, whether or not such employee is at work.
Indeed, to the extent the Letter of Understanding seeks to clarify the term, it provides
further support for such conclusion. As noted, the Letter of Understanding includes as
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examples of “compensable hours” “[t]ime paid for but not worked, such as holiday,
vacation, and sick pay,” (see Ex. 3), all of which the CBA expressly requires the employer
to pay. (See Ex. 1 Art. D §§ 3-5.) There is no evidence that San Bruno is responsible for
making workers’ compensation payments to its employees.
The Court finds unpersuasive Northwest’s contention that the first paragraph of
Article C § 4 is relevant in interpreting the meaning of Article C § 4(b). Although the first
paragraph of Article C § 4 describes the maximum length of time an employee who is
receiving workers’ compensation payments will continue to receive benefits “due him . . .
under the [CBA],” (see Ex. 1 Art. C § 4), it does not purport to set forth or define those
benefits in the first instance. (See Ex. 1 Art. C § 4 (providing, “If an employee is off work
due to illness or injury or on state disability, any benefit, except health and welfare
insurance, due him or her under the Agreement shall be paid for a maximum of six (6)
months. . . . Any employee being paid under workers’ compensation laws is not subject to
these limitations. Benefits to employees being paid under workers’ compensation laws
shall terminate at the conclusion of the workers’ compensation proceeding.”)
Consequently, such language permits no inference that San Bruno is required to make
contributions to the Fund while an employee is receiving workers’ compensation payments.
The Court thus finds time during which an employee receives workers’
compensation payments does not qualify as “compensable hours” under the plain meaning
of the CBA and Letter of Understanding. Accordingly, pursuant to the CBA and the Letter
of Understanding, San Bruno has no obligation to make contributions to the Fund while an
employee is receiving workers’ compensation payments and is not being paid by San
Bruno.
CONCLUSION
For the reasons set forth above, Northwest’s motion for summary judgment is
hereby DENIED, and San Bruno’s cross-motion for summary judgment is hereby
GRANTED.
The parties shall appear before the Court on July 6, 2007 at 10:30 a.m. for a further
Case 3:06-cv-04961-MMC Document 30 Filed 06/12/07 Page 9 of 10
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case management conference. No later than June 30, 2007, the parties shall file a joint
case management statement setting forth any issues that remain to be resolved in the
instant action, and a proposed briefing schedule and/or trial schedule.
This order terminates Docket Nos. 12 and 20.
IT IS SO ORDERED.
Dated: June 12, 2007 MAXINE M. CHESNEY
United States District Judge
Case 3:06-cv-04961-MMC Document 30 Filed 06/12/07 Page 10 of 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_05-cv-02732/USCOURTS-cand-3_05-cv-02732-0/pdf.json | [
[
"Panoptx, Inc.",
"Counter-claimant"
],
[
"Protective Optics, Inc.",
"Counter-defendant"
]
] | 1
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STIPULATION AND [PROPOSED] ORDER RESCHEDULING
CASE MANAGEMENT CONFERENCE
CASE NO. CV 05-02732 CRB
LACA_706528.1
E. Patrick Ellisen (State Bar No. 142033)
Stephen M. Lobbin (State Bar No. 181195)
Debra D. Nye (State Bar No. 226076)
FOLEY & LARDNER LLP
1530 Page Mill Road
Palo Alto, CA 94304-1125
Telephone: 650.856.3700
Facsimile: 650.856.3710
E-mail: [email protected]
[email protected]
[email protected]
Attorneys for Plaintiff
PROTECTIVE OPTICS, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
PROTECTIVE OPTICS, INC., a California
corporation,
Plaintiff,
v.
PANOPTX, INC., a California corporation,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No. CV 05-02732 CRB
STIPULATION AND [PROPOSED] ORDER
RESCHEDULING CASE MANAGEMENT
CONFERENCE AND RELATED DATES
Case 3:05-cv-02732-CRB Document 5 Filed 10/11/05 Page 1 of 2
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STIPULATION AND [PROPOSED] ORDER RESCHEDULING
CASE MANAGEMENT CONFERENCE
CASE NO. CV 05-02732 CRB
LACA_706528.1
IT IS HEREBY STIPULATED THAT, by and between the parties to the above-referenced
action, the date for the Case Management Conference shall be rescheduled from October 7, 2005 to
December 9, 2005. This Stipulation is made so that the parties may finalize a settlement, which has
been agreed to in principle, but has yet to be executed. In addition, because of the impending settlement,
the Defendant has not yet been served with the Summons and Complaint. The parties hereto expect that
a settlement agreement will be executed, and a dismissal filed, before December 9, 2005.
Therefore, the dates in this Court’s Order Setting Initial Case Management Conference, filed
July 7, 2005, shall be rescheduled as follows:
Current Date New Date Event
9/16/2005 11/18/2005 Rule 26(f) Meeting; File Joint ADR Certification
9/30/2005 12/2/2005 File Case Mgmt. Statement and Rule 26(f) Report
10/7/2005 12/9/2005 Case Management Conference
IT IS SO STIPULATED.
Respectfully submitted,
Dated: October 4, 2005 FOLEY & LARDNER LLP
/s/ Stephen M. Lobbin
Stephen M. Lobbin
Attorneys for Plaintiff
PROTECTIVE OPTICS, INC.
Dated: October 4, 2005 /s/ Robert Hall
Robert Hall for Defendant PANOPTX, INC.
ORDER
IT IS SO ORDERED.
Dated: ________________________, 2005
Honorable Charles R. Breyer
United States District Judge
October 7
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
APPROVED
Judge Charles R. Breyer
Case 3:05-cv-02732-CRB Document 5 Filed 10/11/05 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-4_10-cv-00070/USCOURTS-ared-4_10-cv-00070-0/pdf.json | [
[
"Terry Dean Birts",
"Plaintiff"
],
[
"Doc Holiday",
"Defendant"
]
] | 1
Local Rule 5.5(c)(2) provides that: “It is the duty of any party not represented by counsel
to promptly notify the Clerk and the other parties to the proceedings of any change in his or her
address, to monitor the progress of the case, and to prosecute or defend the action diligently. A party
appearing for himself/herself shall sign his/her pleadings and state his/her address, zip code, and
telephone number. If any communication from the Court to a pro se plaintiff is not responded to
within thirty (30) days, the case may be dismissed without prejudice. Any party proceeding pro se
shall be expected to be familiar with and follow the Federal Rules of Civil Procedure.” (Emphasis
added.)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
TERRY DEAN BIRTS
ADC #130647 PLAINTIFF
V. 4:10CV00070 JMM/JTR
DOC HOLIDAY,
Sheriff of Pulaski County DEFENDANT
ORDER OF DISMISSAL
On February 3, 2010, Plaintiff Terry Dean Birts, who is a prisoner in the Arkansas
Department of Correction, filed a pro se § 1983 Complaint alleging that Defendants violated his
constitutional rights. See docket entry #2. On February 11, 2010, the Court entered an Order giving
Plaintiff thirty days to file: (1) an Application to Proceed In Forma Pauperis; and (2) an Amended
Complaint containing information necessary to complete the screening function mandated by 28
U.S.C. § 1915A. See docket entry #3. Importantly, the Court advised Plaintiff that the failure to
timely and properly do so would result in the dismissal of his case, without prejudice, pursuant to
Local Rule 5.5(c)(2).1
Id.
As of the date of this Order of Dismissal, Plaintiff has failed to comply with the Court’s
February 11, 2010 Order, and the time for doing so has expired.
Case 4:10-cv-00070-JMM Document 6 Filed 03/22/10 Page 1 of 2
IT IS THEREFORE ORDERED THAT:
1. Pursuant to Local Rule 5.5(c)(2), this case is DISMISSED, WITHOUT PREJUDICE,
due to Plaintiff’s failure to timely and properly comply with the Court’s February 11, 2010 Order.
2. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis
appeal from this Order of Dismissal and the accompanying Judgment would not be taken in good
faith.
Dated this 22nd day of March, 2010.
UNITED STATES DISTRICT JUDGE
Case 4:10-cv-00070-JMM Document 6 Filed 03/22/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-15-40011/USCOURTS-ca5-15-40011-0/pdf.json | [
[
"Bob Coker",
"Appellee"
],
[
"JoAnn Fields",
"Appellant"
],
[
"Stephen F. Austin State University",
"Appellee"
],
[
"Rose Trotty",
"Appellant"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-40011
Summary Calendar
JOANN FIELDS; ROSE TROTTY,
Plaintiffs - Appellants
v.
STEPHEN F. AUSTIN STATE UNIVERSITY; BOB COKER,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:13-CV-250
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiffs Joann Fields and Rose Trotty appeal the district court’s grant
of summary judgment to defendants Stephen F. Austin State University and
Bob Coker on claims brought under Title VII, the Equal Pay Act, and the Equal
Protection Clause.
We AFFIRM.
* 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
July 15, 2015
Lyle W. Cayce
Clerk
Case: 15-40011 Document: 00513116568 Page: 1 Date Filed: 07/15/2015
No. 15-40011
2
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs, both African-American females, are employed as shuttle
bus drivers in Stephen F. Austin’s Physical Plant Department (“PPD”). Trotty
has worked for Stephen F. Austin since 1990; Fields was hired in 2006.
Defendant Coker is the manager of Transportation and Special Services for the
PPD. He supervises twenty employees, including the plaintiffs. The plaintiffs
claim they are paid less than certain Stephen F. Austin employees who perform
substantially similar job duties. They also claim Coker created a hostile work
environment due to harassment based on race and sex.
Trotty and Fields brought suit against the defendants in the United
States District Court for the Eastern District of Texas for wage discrimination
in violation of Title VII and the Equal Pay Act. They also sued Coker in his
individual capacity under 42 U.S.C. § 1983 for violation of their equal
protection rights. The defendants filed a motion for summary judgment on all
claims; the district court granted the motion. The plaintiffs now appeal.
DISCUSSION
A district court’s grant of summary judgment is reviewed de novo.
Berquist v. Washington Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007). Federal
Rule of Civil Procedure 56(c) “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element essential to that
party's case . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All
inferences are drawn in the non-movant’s favor. Berquist, 500 F.3d at 349.
I. Title VII and Equal Pay Act claims
The plaintiffs contend they perform substantially the same work as, but
are paid less than, certain male and/or non-African-American employees: two
road bus drivers, three garbage workers, two University Police Department
Case: 15-40011 Document: 00513116568 Page: 2 Date Filed: 07/15/2015
No. 15-40011
3
shuttle bus drivers, and a supervisor/foreperson.
To establish a prima facie case of wage discrimination under Title VII,
“a plaintiff must show that he was a member of a protected class and that he
was paid less than a non-member for work requiring substantially the same
responsibility.” Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 522 (5th Cir.
2008). A “plaintiff claiming disparate treatment in pay under Title VII must
show that his circumstances are ‘nearly identical’ to those of a better-paid
employee who is not a member of the protected class.” Id. at 523 (citation
omitted). To establish a prima facie case under the Equal Pay Act, a plaintiff
must show that “(1) her employer is subject to the Act; (2) she performed work
in a position requiring equal skill, effort, and responsibility under similar
working conditions; and (3) she was paid less than an employee of the opposite
sex providing the basis of comparison.” Chance v. Rice Univ., 984 F.2d 151,
153 (5th Cir. 1993).
The district court held that the plaintiffs failed to present evidence
sufficient to raise a fact issue as to whether their positions were substantially
similar to those of the comparators.1 We agree.
The summary judgment evidence provided by the defendants, which was
unrebutted by the plaintiffs, is that Trotty and Fields, as shuttle bus drivers
for the PPD, drive preset on-campus routes from 7:20 a.m. to 5:20 p.m., Monday
through Friday. They do not perform mechanical work, work weekends or
overnight, or supervise employees. The plaintiffs have also driven road buses
and/or garbage trucks at various times during their employment with Stephen
F. Austin.
1 The district court also found that Trotty failed to establish that she was paid less
than several of the comparators. We do not address this issue as neither plaintiff has
established that their positions were sufficiently similar to those of their comparators.
Case: 15-40011 Document: 00513116568 Page: 3 Date Filed: 07/15/2015
No. 15-40011
4
The job duties of the comparators are readily distinguishable. Road bus
drivers transport students off-campus for multi-day, overnight, and weekend
trips, and have mechanical skills. Garbage workers operate a complex
hydraulic system to lift, dump, and compact garbage, pressure wash the
exterior and interior of their vehicle on a daily basis, start work at 5 a.m., and
work on Saturdays. University Police Department shuttle bus drivers are
tasked with law enforcement duties and regularly work overnight and
weekend shifts. The forepersons supervise employees.
Accordingly, the plaintiffs’ job duties are not “nearly identical” to those
of their comparators; their positions do not “requir[e] equal skill, effort, and
responsibility under similar working conditions.” Taylor, 554 F.3d at 523;
Chance, 984 F.2d at 153. The comparators’ positions require, among other
things, mechanical skills; out of town, overnight, and weekend work; law
enforcement skills; and the supervision of employees. None of those is a duty
of a PPD shuttle bus driver.2 Because the plaintiffs “fail[] to make a showing
sufficient to establish the existence of an element essential to [their] case,” the
district court’s grant of summary judgment on plaintiffs’ wage discrimination
claims was proper. See Celotex Corp., 477 U.S. at 322.
2 The plaintiffs both state they have performed some of the same job duties as their
comparators. Fields stated in her deposition that her job has taken her out of town six times
in the past two years, but that she has never stayed overnight. She also states she has driven
garbage trucks but does not specify how often. Trotty states she was trained to drive road
buses and has driven them, but does not specify how often. Fields testified in her deposition
that Trotty has driven a charter bus three times to her knowledge, but has never stayed
overnight. We find persuasive an unpublished case in which a panel of this court held that
a plaintiff who “intermittently” performed the same duties as a comparator was not sufficient
to “rebut the[] differences in responsibility made clear from the summary judgment record.”
See Tillman v. S. Wood Preserving of Hattiesburg, Inc., 250 F. App’x 622, 625-26 (5th Cir.
2007). The fact that Fields and Trotty have, at various times, driven a road bus and/or
garbage truck does not suffice to raise a fact issue that their positions are substantially
similar to those of the comparators for purposes of wage discrimination.
Case: 15-40011 Document: 00513116568 Page: 4 Date Filed: 07/15/2015
No. 15-40011
5
II. Equal Protection Clause claim
The plaintiffs bring their hostile work environment claim against Coker
under 42 U.S.C. § 1983. They contend that Coker is liable in his individual
capacity for violating their equal protection rights based on harassment due to
race or sex.3 The district court granted summary judgment on qualified
immunity grounds, finding that the plaintiffs’ “vague, conclusory statements
regarding Defendant Coker’s behavior” did not show that Coker violated their
constitutional rights.
“[A] plaintiff seeking to defeat qualified immunity must show: ‘(1) that
the official violated a statutory or constitutional right, and (2) that the right
was clearly established at the time of the challenged conduct.’” Morgan v.
Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft v. al-Kidd, 131
S. Ct. 2074, 2080 (2011)).
“[S]ection 1983 and Title VII are parallel causes of action.” Cervantez v.
Bexar Cnty. Civil Serv. Comm’n, 99 F.3d 730, 734 (5th Cir. 1996). In order to
succeed on a hostile work environment claim, plaintiffs must prove, among
other things, that they were subjected to unwelcome harassment based on race
or sex that affected a condition of employment. Ramsey v. Henderson, 286 F.3d
264, 268 (5th Cir. 2002); Lauderdale v. Tex. Dep’t of Criminal Justice,
Institutional Div., 512 F.3d 157, 163 (5th Cir. 2007). To affect a condition of
3 We discover no Fifth Circuit caselaw holding that a Section 1983 claim based on a
violation of equal protection rights (as opposed to a Title VII claim) may be brought for
creation of a hostile work environment due to race. We have held that “sexual harassment
in public employment violate[s] the Equal Protection Clause of the Fourteenth Amendment
and is therefore actionable under § 1983.” Lauderdale v. Tex. Dep’t of Criminal Justice,
Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007) (citation and internal quotation marks
omitted). Other circuits have held that race-based workplace harassment can be violative of
equal protection. See, e.g., Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009) (discussing
race-based hostile work environment claim under the Equal Protection Clause); Williams v.
Seniff, 342 F.3d 774, 788, 791 (7th Cir. 2003) (same).
Case: 15-40011 Document: 00513116568 Page: 5 Date Filed: 07/15/2015
No. 15-40011
6
employment, the harassment “must be ‘sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment.’” Ramsey, 286 F.3d at 268 (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993)).
The plaintiffs claim that Coker called them “girl” or “gal” four times in
2010 and 2011, and that he assigned them to the custodial department for the
summers but did not assign any males. The plaintiffs concede that “Coker’s
use of the phrases ‘girl’ or ‘gal’ is not sufficient in and of itself to constitute a
claim of hostile work environment,” but contend that it “shed[s] light on his
motivations in sending Plaintiffs to the custodial department during summer
months . . . . ” They also claim that Coker did not allow them to take their
lunch in the motor pool with their co-workers, and that when they complained
to Coker about the alleged disparity in pay, he told them they should “just
quit.”
We conclude that, drawing all inferences in the plaintiffs’ favor, Coker’s
conduct is not “sufficiently severe or pervasive to alter the conditions of [the
plaintiffs’] employment and create an abusive working environment.” Id.
(citation and quotation marks omitted). The plaintiffs claim Coker referred to
them as “girl” or “gal” four times, but has not done so since 2011. This is not
sufficiently pervasive to create an abusive working environment. See e.g.,
Lauderdale, 512 F.3d at 163 (finding that “ten to fifteen [harassing phone calls]
a night for almost four months . . . . amounts to pervasive harassment”). The
plaintiffs also did not show that their assignment to the custodial shop during
the summers was sufficiently severe. In fact, Fields stated in her deposition
that if she had a choice between her previous summer assignment and
Case: 15-40011 Document: 00513116568 Page: 6 Date Filed: 07/15/2015
No. 15-40011
7
custodial, she would choose custodial.4 The plaintiffs also complain that Coker
did not allow them to take their lunch in the motor pool with their co-workers
and that he told them to “just quit” when they objected to their pay. Even if
such actions were found to “alter the conditions of [the plaintiffs’] employment
and create an abusive working environment,” the plaintiffs do not provide any
evidence, as they must, that either action was connected to their race or sex.
Ramsey, 286 F.3d at 268 (citation and quotation marks omitted); Lauderdale,
512 F.3d at 163.
Because no constitutional violation is shown, we need not address the
second prong of qualified immunity.
AFFIRMED.
4 Fields also stated in her deposition that she did not believe Coker assigned her to
the custodial department because of her race or sex.
Case: 15-40011 Document: 00513116568 Page: 7 Date Filed: 07/15/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_07-cv-01969/USCOURTS-cand-3_07-cv-01969-5/pdf.json | [
[
"Starbucks Corporation",
"Defendant"
],
[
"Terri Yarkin",
"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
TERRI YARKIN,
Plaintiff,
v.
STARBUCKS CORPORATION,
Defendant. /
No. C 07-01969 CRB
ORDER OF DISMISSAL
The parties hereto, by their counsel, having advised the Court that they have agreed to a
settlement of this case,
IT IS HEREBY ORDERED that this case be dismissed without prejudice; provided,
however, that if any party hereto shall certify to this Court, within thirty days, with proof of service
of a copy thereon on opposing counsel, that the agreed consideration for said settlement has not been
delivered over, the foregoing Order shall stand vacated and this case shall forthwith be restored to
the calendar to be set for trial.
Dated: June 12, 2008
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE
Case 3:07-cv-01969-CRB Document 70 Filed 06/13/08 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-2_05-cv-02047/USCOURTS-alnd-2_05-cv-02047-0/pdf.json | [
[
"Capstone Capital Corporation",
"Plaintiff"
],
[
"HR Acquisition I Corporation",
"Plaintiff"
],
[
"Twin City Fire Insurance Company",
"Defendant"
]
] | Capstone was renamed HR Acquisition on October 15, 1998. (Doc. #1 at Ex. 1
B ¶ 2).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HR ACQUISITION I CORPORATION, )
formerly known as Capstone Capital )
Corporation, )
)
Plaintiff, )
)
v. ) CASE NO.: 2:05-CV-2047-VEH
)
TWIN CITY FIRE INSURANCE )
COMPANY, )
)
Defendant. )
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff HR Acquisition I Corporation (“HR Acquisition”) initiated a state
court insurance coverage action (05-5503) on September 16, 2005. (Doc. #1 at Ex.
B). Defendant Twin City Fire Insurance Company (“Twin City”) removed this case
to this court on September 28, 2005. (Doc. #1).
In this lawsuit, HR Acquisition seeks a determination regarding the rights and
duties owed by Twin City to Capstone Capital Corporation (“Capstone”) under an 1
insurance policy entitled “Directors, Officers and Company Liability Policy for
Members of the National Association of Real Estate Investment Trusts,” Policy No.
FILED
2007 Apr-09 PM 02:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 1 of 35
2
NAR 0143871-00 (the “Policy”). (Doc. #1 at Ex. B at Count I). HR Acquisition has
also sued Twin City for breach of contract under the Policy. (Id. at Count II).
The issue of coverage under the Policy stems from an underlying piece of
consolidated litigation relating to HealthSouth Corporation (“HealthSouth”). More
specifically, the dispute relates to the denial of insurance coverage under the Policy
for a lawsuit captioned Wade Tucker, derivatively for the benefit of and on behalf of
the nominal defendant HealthSouth Corporation v. Scrushy, et al., CV 02-5212
(AEH) (the “Tucker Derivative Action”). (Doc. #1 at Ex. B ¶ 1).
Pending before the court is Twin City’s Motion for Summary Judgment (Doc.
#23) filed on January 26, 2006. As discussed more fully below, Twin City’s Motion
for Summary Judgment is due to be denied becausematerial factual disputes preclude
the entry of judgment as a matter of law in its favor.
II. STANDARD ON SUMMARY JUDGMENT
Courts should grant summary judgment when “there is no genuine issue of
material fact . . . and the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The moving party always bears the initial responsibility of
informing the district court about the grounds of its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any’ which it believes demonstrates the absence of a
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 2 of 35
3
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In deciding whether the movant has met this burden, the court must examine the facts
in the light most favorable to the non-moving party. Allen v. Tyson Foods, Inc., 121
F.3d 642 (11th Cir. 1997) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970)); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Once the
moving party has met this burden, the non-movant must then present evidence
establishing that there is a genuine issue of material fact that precludes the entry of
judgment as a matter of law in favor of the movant. Celotex, 477 U.S. at 325.
Additionally, “[i]f the movant bears the burden of proof on an issue, because,
as a defendant, it is asserting an affirmative defense [such as, an exclusion under an
insurance policy], it must establish that there is no genuine issue of material fact as
to any element of that defense.” International Stamp Art, Inc. v. U.S. Postal Service,
456 F.3d 1270, 1273 -74 (11th Cir. 2006) (citation omitted).
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If the facts are in dispute, they are stated in the manner most favorable to the 2
non-moving party. See Fitzpatrick v. City of Atlanta, 2 F.3d at 1115. Additionally,
these are the facts for summary judgment purposes only. They may not be the actual
facts. See Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir.
1994) (“‘[W]hat we state as ‘facts’ in this opinion for purposes of reviewing the
rulings on the summary judgment motion [ ] may not be the actual facts.’”) (citation
omitted).
The designation “AF” stands for admitted fact and indicates a fact offered by 3
the Twin City that HR Acquisition has admitted in its written submissions on
summary judgment or by virtue of any other evidence offered in support of its case.
Whenever HR Acquisition has adequately disputed a fact offered by Twin City, the
court has accepted HR Acquisition’s version. The court’s numbering of admitted facts
(e.g., AF No. 1) corresponds to the numbering of Twin City’s Statement of Facts as
set forth in Doc. #25 and responded to by HR Acquisition in Doc. #26. A number (or
a number and a letter) following a decimal point corresponds to the particular
sentence within the numbered statement of facts. For example, (AF No. 1.2) would
indicate that the second sentence of paragraph 1 of Twin City’s Statement of Facts
is the subject of the court’s citation to the record. Similarly,(AF No. 17.2(a)) would
indicate that subsection “a” of the second sentence of paragraph 17 of Twin City’s
Statement of Facts is the subject of the court’s citation to the record. Also, the
designation “AAF” stands for additional admitted fact and corresponds to HR
Acquisition’s Statement of Additional Facts contained in Doc. #26 and responded to
by Twin City in Doc. #31. Any other facts referenced by the parties that require
further clarification are dealt with later in the court’s opinion.
4
III. STATEMENT OF FACTS2
A. The Tucker Derivative Action and the Parties
On or about August 28, 2002, the Tucker Derivative Action was filed against
numerous present and former directors and officers of HealthSouth and a number of
additional entities. AF No. 1.1. The operative pleading in the Tucker Derivative
3
Action is reflected by the Third Amended Verified Complaint, as modified by the
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5
Supplemental Complaint and Fourth Amended Complaint. AF No. 1.2; Doc. #28 at
Ex. 1. The Tucker Derivative Action generally alleges that HealthSouth engaged in
a massive accounting fraud scheme and that its directors and officers breached their
fiduciary duties to HealthSouth and its shareholders by entering into numerous
self-interested transactions from which they received improper benefits and that
constituted misappropriations of corporate opportunities and a waste of corporate
assets. AF No. 2.
In addition to HealthSouth’s directors and officers, the Tucker Derivative
Action names as defendants a number of outside entities, which allegedly aided and
abetted these breaches of fiduciary duty and/or conspired with HealthSouth’s
directors and officers to injure HealthSouth. AF No. 3.1. Among these entities are
a number of companies that were allegedly owned or controlled by certain
HealthSouth directors and officers, including Capstone. AF No. 3.2.
Relevant for present purposes, Richard Scrushy (“Scrushy”) is alleged to have
been the former Chairman of the Board and CEO of HealthSouth and to have served
as a director and/or consultant of Capstone. AF No. 4.1. More specifically, the
Tucker Derivative Action allegesthat Scrushy was “at all timesrelevant to the claims
asserted herein a director and/or consultant of defendant Capstone Capital
Corporation (‘Capstone’) and/or its successor corporation.” AAF No. 41.1. It also
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6
alleges that Scrushy “formed or allowed the formation of Capstone” and served on
its Board of Directors. AAF No. 41.2.
Michael Martin (“Martin”) is alleged to have served as an officer of
HealthSouth and as a director and/or consultant to Capstone. AF No. 4.2. More
specifically, the Tucker Derivative Action alleges that Martin was “at all times
relevant to the claims asserted herein a director and/or consultant to Capstone and/or
its successor corporation.” AAF 42.1. It also alleges that Martin “formed or allowed
the formation of Capstone” and served on its Board of Directors. AAF 42.2. Finally,
Larry Striplin (“Striplin”) is alleged to have served as a member of HealthSouth’s
Board of Directors and as a director of Capstone. AF No. 4.3. The Tucker Derivative
Action incorporates by reference the introductory allegations stating that Scrushy,
Martin and Striplin served as directors or officers of Capstone. AAF No. 44.
Capstone is alleged to have been a party to certain of the alleged self-dealing
transactions. AF No. 7. In particular, it is alleged that HealthSouth, at the direction
of Scrushy and others, sold depreciable buildings to Capstone and then entered into
long-term lease agreements to lease the buildings back to HealthSouth at inflated
rental amounts. AF No. 8.1. These transactions were allegedly entered into to
provide money to Scrushy, Martin and other defendants. AF No. 8.2. HealthSouth
allegedly overpaid millions of dollars pursuant to this scheme, which is further
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7
alleged to have constituted a breach of the duty of loyalty owed to HealthSouth. AF
No. 8.3. The Tucker Derivative Action does not identify specific transactions
between HealthSouth and Capstone. AAF No. 47.
In addition, it is alleged that when Capstone was acquired or merged with
Healthcare Realty Trust (“HRT”), Scrushy and Martin were paid millions of dollars
as stockholders pursuant to buyout consulting agreements. AF No. 9.1. It is further
alleged that Scrushy and Martin became paid consultants to HRT, with the knowledge
of Striplin, and that they received stock worth millions of dollars pursuant to this
agreement in violation of the fiduciary duties they owed to HealthSouth. AF No. 9.2.
The Tucker Derivative Action seeks damages against Scrushy, Martin, and Striplin,
individually, but contains allegations pertaining to their activities in their capacities
as directors and officers of Capstone. AF No. 10.
The Tucker Derivative Action expressly references an earlier lawsuit involving
the dealings between HealthSouth and Capstone, United States of America ex rel.
Greg Madrid v. HealthSouth Corp., et al., CV-97-C-3206 (N.D. Ala., 1997) (the
“Madrid Action”). AF No. 11. The Madrid Action was filed on December 15, 1997,
and the named defendants included HealthSouth, Scrushy and Capstone. AF No. 12.
In pertinent part, the Madrid Action, like the Tucker Derivative Action, alleged that
Scrushy was a co-founder and director of Capstone and that he owned a substantial
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8
interest in Capstone. AF No. 13. Capstone and Scrushy were never served and never
appeared in the qui tam Madrid Action. AAF No. 48.
The Madrid Action further alleged, like the Tucker Derivative Action, that
HealthSouth, at the direction of Scrushy, engaged in a series of transactions with
Capstone under which HealthSouth sold depreciable buildings to Capstone and then
entered into long-term lease agreements under which HealthSouth leased these
buildings back from Capstone at inflated prices. AF No. 14. The complaint in the
Madrid Action did not identify specific transactions involving Capstone and
HealthSouth. AAF No. 49.
The Tucker Derivative Action alleges concerning the Madrid Action that “[o]n
May 18, 2001, HealthSouth entered into a Joint Stipulation of Dismissal with the
United States and Greg Madrid pursuant to which HealthSouth agreed to pay $7.9
million to the government and abide by a Corporate Integrity Agreement; and the
United States agreed to dismiss all claims in the qui tam complaint, including those
against the individuals Scrushy and Gerald.” (Doc. #28 at Ex. 1 ¶ 60). The Tucker
Derivative Action further alleges that in causing HealthSouth to pay $7.9 million to
settle the Madrid Action, Scrushy breached fiduciary duties owed to HealthSouth,
was unjustly enriched, and wasted corporate assets, because HealthSouth itself had
been damaged by the overpayment scheme from which Scrushy benefitted personally.
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9
AF No. 16. The Madrid Action was dismissed with prejudice by an Order of
Dismissal and Lifting of Seal entered on May 21, 2001. AAF No. 50.
Martin has pled guilty to committing deliberately fraudulent acts in connection
with his role in the HealthSouth accounting fraud scheme. AF No. 17.1. The factual
basis for his guilty plea states in part that:
(a) Martin became aware that the company was not meeting earnings
projections as early as 1994. After becoming CFO, he reviewed
accurate financial results, which showed that HealthSouth was not
meeting earnings projections. Martin and another senior officer were
then instructed by Scrushy to fix the books and records of HealthSouth
so that they would reflect projected earnings. AF No. 17.2(a).
(b) Martin attended meetings with the accounting staff where they
discussed how the financial statements could be changed to meet
earnings projections. AF No. 17.2(b); and
(c) As HealthSouth’s CFO, Martin signed SEC filings knowing that
the financial statements attached to the filings did not fairly present the
financial condition and operating results of HealthSouth. AF No.
17.2(c).
The Rule 11(f) Factual Basis for Guilty Plea pertaining to Martin's guilty plea in
United States of America v. Michael Martin, CR-03-C-0191-S (N.D. Ala.), did not
refer to any transactions between HealthSouth and Capstone as a basis for the charges
against Martin or his guilty plea. AAF No. 52. The charges to which Martin pleaded
guilty do not form a basis for a purported cause of action against Capstone in the
Tucker Derivative Action. AAF No. 53.
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10
The Tucker Derivative Action includes many of the same allegations of
accounting fraud that are contained in Martin's guilty plea:
(a) HealthSouth’s directors and officers conspired to misrepresent
and falsely inflate earnings and HealthSouth’s true financial condition.
AF No. 18(a);
(b) The overstatement of earnings occurred because Scrushy insisted
that HealthSouth meet or exceed earnings expectations. When
HealthSouth fell short of estimates, Scrushy directed HealthSouth’s
accounting personnel to “fix” it by artificially inflating earnings. AF No
18(b);
(c) In furtherance of the conspiracy, Scrushy and others met with
HealthSouth’s accounting staff in order to discuss how the accounting
staff would falsify HealthSouth’s books to meet earnings. AF No. 18(c);
and
(d) As part of the conspiracy, defendants filed materials with the SEC
that overstated HealthSouth’s operating results. AF No. 18(d).
B. The Corporate Identity of Capstone, Twin City’s Denial of
HR Acquisition’s Requestfor Coverage under the Policy, and
the Costs of Defense in the Tucker Derivative Action
Pursuant to a merger agreement entered into on June 8, 1998, Capstone was
merged into plaintiff HR Acquisition. AF No. 19.1. Pursuant to this agreement,
Capstone was the surviving corporate entity under the name HR Acquisition. AF No.
19.2. HR Acquisition, in turn, is a wholly owned subsidiary of HRT. AF No. 19.3.
After HR Acquisition submitted the Tucker Derivative Action to Twin City for
coverage under the Policy issued to Capstone, Twin City denied coverage by certified
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11
letter dated March 15, 2004. (Doc. #24 at Ex. E). HR Acquisition then filed this
lawsuit against Twin City seeking coverage for Capstone in connection with the
Tucker Derivative Action. AF No. 21.
The invoices reflecting fees and costs incurred in connection with the defense
of HR Acquisition f/n/a Capstone in the Tucker Derivative Action have been billed
to HRT. AF No. 22. Historically, all fees and costs incurred in connection with the
defense of HR Acquisition f/n/a Capstone in the Tucker Derivative Action have been
paid by either HRT or an entity named ASMI/Birmingham Medical Building SPE,
LLC (“ASMI/Birmingham”). AF No. 23. Capstone does not have other insurance
for the Tucker Derivative Action, nor does it have indemnity agreements pertaining
to the litigation with any other party. AAF No. 55.
HRT itself is a named defendant in the Tucker Derivative Action. AF No. 24.
HRT was dismissed as a defendant in the Tucker Derivative Action on September 21,
2004. AAF No. 56. HR Acquisition does not in this action seek a declaration of
coverage or any other relief on behalf of Scrushy, Martin, or Striplin as directors or
officers of Capstone. AF No. 25. Neither Scrushy, Martin, nor Striplin have
submitted the Tucker Derivative Action for coverage under the Policy issued by Twin
City to Capstone. AF No. 26. Apparently, neither Scrushy, Martin, nor Striplin have
sought indemnification in connection with the Tucker Derivative Action, even though
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12
they may have been entitled to such indemnification under the Merger Agreement.
AF No. 27.
C. The Twin City Policy
The Twin City Policy was in effect for the policy period from July 15, 2000,
to October 15, 2004, with an aggregate limit of liability of $10,000,000. AF No. 28.
Subject to its terms, conditions, and exclusions, the Policy provides what is known
as “claims made” coverage, which means that the policy covers only those claims first
made during the policy period. AF No. 29.1. The Policy contains a number of
specific terms, conditions, and exclusions that are relevant to a determination of
coverage. AF No. 29.2.
The Policy contains four “Insuring Agreements,” only one of which is relevant
here. AF No. 30.1. Insuring Agreement (D) states that Twin City “will pay on behalf
of the Company Loss . . . which the Company shall become legally obligated to pay
as a result of a Non-Securities Claim first made during the Policy Period . . . against
the Company for a Wrongful Act which takes place during or prior to the Policy
Period.” AF No. 30.2.
The Policy defines a “Non-Securities Claim” as:
any Claim other than a Securities Claim jointly first made against both
the Company and the Directors and Officers. If such claim is
dismissed or otherwise discontinued against the Directors and Officers
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13
and is continuously maintained against the Company, such Claim shall
continue to be deemed a Non-Securities Claim.
AF No. 31.
The Policy defines a “Claim” in pertinent part as:
a civil or criminal proceeding commenced by the service of a complaint
or similar pleading . . . against Directors or Officers, or with respect to
Insuring Agreements B(2),C and D, the Company, for a Wrongful Act,
including any appeal therefrom.
AF No. 32; AAF No. 57.
The Policy defines “Wrongful Act” in pertinent part as:
any actual or alleged error, misstatement, misleading statement, act,
omission, neglect or breach of duty, committed or attempted by the
Directors and Officers, in their capacity as such, . . . or, with respect to
Insuring Agreements B(2), C and D, by the Company . . .
AF No. 33. The Tucker Derivative Action alleges a “Wrongful Act” by Capstone
within the meaning of the Policy. AAF No. 64.
The Policy defines “Loss” in pertinent part as:
sums which the Directors and Officers, or, with respect to Insuring
Agreements B(2), C and D, the Company, are legally liable to pay
solely as a result of any Claim insured by this Policy, including Claims
Expenses, compensatory damages, settlement amounts and legal fees
and costs awarded pursuant to judgments, but excluding fines, penalties,
taxes, any amount allocated to uncovered loss pursuant to Section VII
of this Policy, or matters uninsurable pursuant to any applicable law...
AF No. 34.
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14
The term “Insured” means “one or more Directors or Officers and, solely with
respect to Insuring Agreements B, C and D, the Company.” AF No. 35. The term
“Directors and Officers” includes past, present, and future “directors, officers,
trustees, trust managers, managers, members, general partners, partnership managers
or joint venture managers of” Capstone. AF No. 36. The Policy’s definition of
“Directors and Officers” is not limited to individuals acting in their officials
capacities with Capstone, but instead includes “one or more natural persons who
were, now are or shall hereafter be duly elected, appointed or selected directors,
officers, trustees, trust managers, managers, members, general partners, partnership
managers or joint venture managers of a Company,” and “with respect to Securities
Claims and Non-Securities Claims only, any other natural persons who were, now
are or shall hereafter be employees of the Company.” AAF No. 66.
The Policy requires Twin City to “advance on behalf of the Insureds Claims
Expenses which the Directors and Officers or, solely with respect to Insuring
Agreements B(2), C and D, the Company, have incurred in connection with Claims
made against them, prior to disposition of such Claims,” subject to a repayment
provision for non-covered Claims Expenses. (Doc. #24 at Ex. K at 5 § III.(C)).
“Claims Expenses”are defined under the Policy as “that portion of Loss consisting
of reasonable and necessary fees (including attorneys’ fees and experts’ fees) and
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15
expenses incurred in the defense or appeal of a Claim, but shall not include the
wages, salaries, benefits or expenses of any Directors, Officers or employees of the
Company. (Doc. #24 at Ex. K at 5 § IV.(B)).
The Policy includes a number of exclusions which Twin City contend are
applicable to this matter. AF No. 37.1. The first is the “outside service” exclusion,
which states in pertinent part that:
The Insurer shall not be liable to make any payments for Loss in
connection with any Claim made against the Directors and Officers, or
with respect to Insuring Agreements B(2), C and D, the Company:
based upon, arising from or in any way related to such Directors and
Officers serving as a director, officer, trustee, regent, governor, trust
manager, manager, general partner, partnership manager, joint venture
manager or employee of any entity other than the Company even if such
service is at the direction or request of the Company . . .
AF No. 37.2.
The Policy also includes a “prior litigation” exclusion, which states that:
The Insurer shall not be liable to make any payments for Loss in
connection with any Claim made against the Directors and Officers, or
with respect to Insuring Agreements B(2), C and D, the Company:
based upon arising from, or in any way related to any demand, suit, or
other proceeding against any Insured which was pending on or existed
prior to the applicable Prior Litigation Date specified by endorsement
to this Policy, or the same or substantially the same facts, circumstances
or allegations which are the subject of or the basis for such demand, suit
or other proceeding.
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In its opposition, HR Acquisition states that the duty to advance defense costs
4
is analyzed similarly to an insurer’s duty to defend. (Doc. #26 at 13-14). In its reply,
Twin City does not dispute this statement of law. The court uses the term duty to
defend for analysis purposes as have the parties, recognizing that the Policy, if
triggered, obligates Twin City to advance expenses, rather than to provide a defense,
which would customarily also require that defense counsel be retained for the benefit
of the insured. (Doc. #24 at Ex. K at 5 § III.(C)).
16
AF No. 38. The “Prior Litigation Date” applicable to this exclusion is December
17, 1997. AF No. 39.
Finally, the Policy contains a “fraud” exclusion, which states in pertinent part
that:
The Insurer shall not be liable to make any payments for Loss in
connection with any Claim made against the Directors and Officers, or
with respect to Insuring Agreements B(2), C and D, the Company:
based upon, arising from, or in any way related to their committing any
deliberately fraudulent act if a judgment or other adjudication adverse
to such Insured establishes such an act, provided this exclusion shall
apply to Insuring Agreements C and D, if granted, only if such judgment
or final adjudication establishes that a Director or Executive Officer of
the Company committed such an act . . .
AF No. 40; AAF No. 58.
IV. ANALYSIS
A. Duty to Advance Defense Costs/Duty to Defend
4
1. Justiciability Requirements
Whether an insurer has a duty to defend is generally considered a ripe case for
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 16 of 35
The “Declarations” page of the Policy lists Capstone as the “Named Real 5
Estate Investment Trust” with an Alabama address of 1000 Urban Center Drive,
Birmingham 35242. Several of the Policy’s endorsements also reference “Alabama.”
(Doc. #24 at Ex. K at 20 (“Multi-Year Endorsement - Alabama”); id. at 24
(“Cancellation Endorsement Alabama”)). Accordingly, Alabama is the state in which
the Policy was delivered.
17
declaratory relief. Ex parte Alfa Mut. Ins. Co., 921 So. 2d 418, 419-20 (Ala. 2005)
(citing Smith v. North River Insurance Co., 360 So. 2d 313 (Ala. 1978)). This case
presents no exception.
2. Alabama Law Governing Insurance Contract
Disputes Generally5
a. Duty to Defend
Under Alabama law, the duty to defend is greater than the duty to indemnify.
See Ladner & Co. v. Southern Guaranty Ins. Co., 347 So. 2d 100, 102 (Ala. 1977)
(“If the allegations of the injured parties’ complaint show an accident or occurrence
which comes within the coverage of the policy, the insurer is obligated to defend
regardless of the ultimate liability of the insured.”); see also Chandler v. Alabama
Mun. Ins. Co., 585 So. 2d 1365, 1367 (Ala. 1991) (same) (internal citations omitted).
Additionally, “[w]hen a complaint alleges both acts covered under the policy and acts
not covered, the insurer is under a duty to at least defend the allegations covered by
the policy.” Acceptance Ins. Co. v. Brown, 832 So.2d 1, 14 (Ala. 2001) (citations
omitted).
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 17 of 35
“‘Under the Erie doctrine, a federal court adjudicating state law claims applies 6
the substantive law of the state.’” Sphinx Intern., Inc. v. National Union Fire Ins. Co.
of Pittsburgh, Pa., 412 F.3d 1224, 1227 (11th Cir. 2005) (quoting Ungaro-Benages
v. Dresdner Bank AG, 379 F.3d 1227, 1232 (11th Cir. 2004) (citations omitted)).
Moreover, the substantive law of the state governs the interpretation of insurance
contracts. Provau v. State Farm Mut. Ins. Co., 772 F.2d 817, 819 (11th Cir. 1985).
Hence, the insurance contract issues in this case are governed by Alabama law.
18
An insurance company’s duty to defend its insured from suit is determined by
the language of the insurance policy and by the allegations in the complaint filed
against the insured. Alfa Mutual Ins. Co. v. Morrison, 613 So. 2d 381, 382 (Ala.
6
1993); Ladner, 347 So. 2d at 102 (Ala. 1977); see also Perkins v. Hartford Ins.
Group, 932 F.2d 1392 (11th Cir. 1991) (“Generally, the obligation of the insurer to
defend its insured is determined by the allegations of the third-party complaint.”)
(citing Ladner, 347 So.2d at 102). Generally, an insurer owes no duty to defend, if
the complaint fails to aver a covered accident or occurrence (or as in this case, a
wrongful act). Ladner, 347 So. 2d at 102; see also Hartford Cas. Ins. Co. v.
Merchants & Farmers Bank, 928 So.2d 1006, 1010 (Ala. 2005) (“The insurer owes
no duty to defend only if neither does the complaint against the insured allege a
covered accident or occurrence nor does the evidence in the litigation between [the
injured person] and the insured prove a covered accident or occurrence [or a wrongful
act].”).
However, “[w]here the allegations of the complaint show that no injury alleged
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 18 of 35
19
is within the coverage of the policy, . . . or where the allegations are ambiguous, ‘the
court is not limited to the bare allegations of the complaint . . . but may also look to
facts which may be proved by admissible evidence.’” Guar. Nat’l Ins. Co. v. Beeline
Stores, Inc., 945 F. Supp. 1510, 1513 (M.D. Ala. 1996) (quoting Chandler v.
Alabama Mun. Ins. Co., 585 So. 2d 1365 (Ala. 1991)). Similarly, “[i]f the complaint
against the insured does not, on its face, allege a covered accident or occurrence, but
the evidence proves so, then the insurer likely owes the duty to defend.” Tanner v.
State Farm Fire & Cas. Co., 874 So. 2d 1058, 1065 (Ala. 2003).
b. Contractual Ambiguities
Regarding contractual ambiguities, the Supreme Court of Alabama has
summarized:
“‘The test to be applied by [a] court in determining whether there
is ambiguity is not what the insurer intended its words to mean, but what
a reasonably prudent person applying for insurance would have
understood them to mean.’ Lee R. Russ & Thomas F. Segalla, Couch on
Insurance § 21:14, pp. 21-23 (3d ed. 1997); see, also, Western World
Ins. Co. v. City of Tuscumbia, 612 So. 2d 1159, 1161 (Ala.1992) (same);
St. Paul Fire & Marine Ins. Co. v. Edge Memorial Hosp., 584 So.2d
1316, 1322 (Ala.1991) (stating that language in an insurance policy
should be given the same meaning that an ordinary person, not a lawyer,
would reasonably ascribe to the language). The terms of an insurance
policy are ambiguous only if the policy’s provisions are reasonably
susceptible to two or more constructions or there is reasonable doubt or
confusion as to their meaning. See United Services Auto. Ass'n v. Smith,
57 Ala. App. 506, 329 So. 2d 562 (Ala. Civ. App. 1976). In determining
whether an ambiguity exists, a court should apply the common
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20
interpretation of the language alleged to be ambiguous. See Alabama
Farm Bureau Mut. Cas. Ins. Co. v. Goodman, 279 Ala. 538, 541, 188
So. 2d 268, 270 (1966). This means that the terms of an insurance
policy should be given a rational and practical construction. Green v.
Merrill, 293 Ala. 628, 308 So. 2d 702 (1975). Also, a court cannot
consider the language in the policy in isolation, but must consider the
policy as a whole. Turner v. United States Fidelity & Guar. Co., 440
So.2d 1026 (Ala.1983).”
See Porterfield v. Audubon Indem. Co., 856 So. 2d 789, 799 (Ala. 2002). However,
“[i]f there is no ambiguity, courts must enforce insurance contracts as written and
cannot defeat express provisions in a policy, including exclusions from coverage, by
making a new contract for the parties.” Porterfield, 856 So. 2d at 800 (citation
omitted).
c. Burdens of Proof
Regarding the parties’ respective burdens of proof, the insured bears the initial
burden of proving that a particular claim or occurrence falls within coverage under
the insurance policy. See, e.g., Colonial Life & Acc. Ins. Co. v. Collins, 194 So.2d
532, 535 (Ala. 1967) (“The burden was on plaintiff to prove that the insured’s death
resulted from injuries sustained in such manner as to bring him within the coverage
of the policy.”).
On the other hand, “the insurer bears the burden of proving the applicability
of any policy exclusion.” Universal Underwriters Ins. Co. v. Stokes Chevrolet, Inc.,
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 20 of 35
21
990 F.2d 598, 604 (11th Cir. 1993) (citing Fleming v. Alabama Farm Bureau Mut.
Cas. Ins. Co., 310 So.2d 200, 202 (Ala.1975)) (other citation omitted). Additionally,
Alabama law calls for a narrow view of exclusions to provide the maximum coverage
that a reasonable reading will allow. Porterfield, 856 So. 2d at 799-800. “[W]hen
doubt exists as to whether coverage is provided under an insurance policy, the
language used by the insurer must be construed for the benefit of the insured.” Id.,
856 So. 2d at 800 (citation omitted).
3. Twin City bases its lack of any duty to defend
under the Policy upon several different reasons.
In support of its Motion for Summary Judgment, Twin City maintains that it
is entitled to judgment as a matter of law because no coverage exists under the Policy
for the claims asserted against Capstone in the Tucker Derivative Action. More
specifically, Twin City contends that it is entitled to summary judgment because no
wrongful acts within the meaning of the Policy have been alleged in the Tucker
Derivative Action. Alternatively, Twin City also argues for the application of several
different exclusions under the Policy as a matter of law. Finally, Twin City argues
that because Capstone has incurred no loss as a result of the Tucker Derivative
Action, no coverage under the Policy exists.
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 21 of 35
Had the Tucker Derivative Action made no mention of Scrushy, Martin, and 7
Striplin’s capacities as Capstone directors and officers, then Twin City’s argument
would have potential merit. See Bowie v. Home Ins. Co., 923 F.2d 705, 708 (9th Cir.
1991) (“The California action names them as defendants only in their capacities as
Transit officials. The mere fact that Bowie and Gregory are named in the California
action is not controlling. The directors of Transit and the directors of DMT may as
well have been completely different people. What is important is not their identities
but their capacities. Here the insured capacities are not implicated in the California
action. Because there is no lawsuit against an insured party, there is no one to whom
a duty to defend is owed.”). Unlike the Bowie case, the Capstone capacities held by
Scrushy, Martin, and Striplin are expressly part of the Tucker Derivative Action.
22
a. The Tucker Derivative Action is
within the scope of the Policy’s
general coverage for “Wrongful
Acts.”
The court disagrees with Twin City’s characterization of the Tucker Derivative
Action as not triggering coverage for any “Wrongful Acts” under the Policy. At its
root, Twin City tries to draw a distinction between allegations made about Scrushy,
Martin, and Striplin serving as Capstone directors and officers (which are expressly
within the Tucker Derivative Action) as opposed to allegations made about them
acting in a Capstone capacity. This is a distinction without a legal difference.
Instead, the material consideration is whether Scrushy, Martin, and Striplin’s
capacities as Capstone directors and officers are implicated in the Tucker Derivative
Action, which they expressly are. Similarly, the Tucker Derivative Action does not
7
limit recovery to Scrushy, Martin, and Striplin’s activities as directors and officers of
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 22 of 35
23
HealthSouth. Nor does it name Scrushy, Martin, and Striplin without any reference
to their roles with Capstone. To the contrary, the Tucker Derivative Action expressly
references their alleged collective connection to the very creation and/or running of
Capstone.
Moreover, Twin City has not cited to and this court has not been able to
independently locate any controlling case authority in which the word choice between
using “serving” over “acting” asto officers and directors made a difference in finding
coverage for a Wrongful Act. At best Twin City has only created a close call as to
this general coverage issue. In those types of situations, Alabama law supports
resolving any coverage dispute in favor of the insured. See Colonial Life, 194 So. 2d
at 535 (“It is a well-established principle that insurance contracts will be construed
most strongly against the insurer.”).
Accordingly, the court finds that Twin City’s interpretation of the Policy
language of the “Wrongful Act” in the context of the Tucker Derivative Action’s
allegations relating to the officers and directors of Capstone is not reasonable.
Alternatively, the court finds the Policy to be ambiguous, subject to more than one
reasonable interpretation, and regardless that material factual disputes preclude the
entry ofsummary judgment. As a result, Twin City’s Motion for Summary Judgment
is due to be denied on this particular basis.
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 23 of 35
24
b. The “Outside Service” Exclusion
Twin City maintains that the “outside service” exclusion excludes the Tucker
Derivative Action from coverage under the Policy because of its allegations made
against Scrushy, Martin, and Striplin in their roles as officers and directors of
HealthSouth. The court finds that the language of the “outside service” exclusion
does not reasonably support Twin City’s interpretation of it or, alternatively, it is
ambiguous as to its application to the Tucker Derivative Action. Additionally, the
court finds that material factual disputes preclude the entry of summary judgment as
to the exclusion. Accordingly, Twin City has not carried its burden of showing the
application of the “outside service” exclusion as a matter of law.
More specifically, the use of the phrase “of any entity other than the Company
even if such service is at the direction or request of the Company” leaves open the
question of whether the exclusion is appropriately applicable when a lawsuit arises
out of roles held by officers and directors both within the Company (i.e., Capstone)
and without (i.e., HealthSouth). In other words, the exclusion does not speak to the
very type of situation that is present in the Tucker Derivative Action in which the
capacities connected to the “inside” Capstone and the capacities related to the
“outside” HealthSouth have allegedly merged together to cause harm. Instead, the
exclusion only directly speaks to a case arising out of a person’s role as an officer and
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 24 of 35
25
director of another company, who just happens to also be a director or an office of
Capstone.
Nor has Twin City pointed to any controlling case law that supports its
expansive reading of the “outside service” exclusion and, as the insurer, Twin City
carries the burden to show the proper application of the exclusion as a matter of law.
Under such circumstances, Twin City has not met its burden on summary judgment
with respect to the “outside service” exclusion.
c. The “Prior Litigation” Exclusion
Twin City has also failed to show the application of the “prior litigation”
exclusion as a matter of law because its interpretation is unreasonable or,
alternatively, because the exclusion is ambiguous and subject to more than one
reasonable interpretation. Additionally, the court finds that material factual disputes
preclude the entry of summary judgment as to the exclusion. The parties agree that
the Madrid Action falls within the applicable exclusionary time period and named
Scrushy and Capstone as defendants. However, neither Scrushy nor Capstone was
ever served with a copy of the qui tam complaint or appeared in the case.
The pertinent language of the exclusion calls for a determination of whether
the Madrid Action was pending or existed “against” Scrushy or Capstone prior to the
applicable Prior Litigation Date. The court concludes that Twin City has failed to
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 25 of 35
26
established as a matter of Alabama law that an unserved but named defendant, such
as Scrushy or Capstone, has an action pending “against” him or it with the meaning
of the “prior litigation” exclusion.
Rule 4 of the Alabama Rules of Civil Procedure sets forth the general and
miscellaneous provisions regarding service of process. Rule 4(a)(4) defines the terms
of “plaintiff” and “defendant.” “For the purpose of issuance and service of summons
or other process, ‘plaintiff’ shall include any party seeking the issuance of service of
summons, and ‘defendant’ shall include any party upon who service of summons or
other process is sought.” Ala. R. Civ. P. 4(a)(4). Concerning the Madrid Action,
there is no evidence that the plaintiffs ever sought service of a summons or other
process against Scrushy or Capstone; therefore, neither became an active party
defendant in the pending Madrid Action.
Similarly, under Rule 12 of the Alabama Rules of Civil Procedure, neither
Scrushy nor Capstone was required to respond to the qui tam complaint because
neither had ever received “service of the summons and complaint” and, as such, the
claims set forth in the Madrid Action were never formally begun or pending against
either one of them. Ala. R. Civ. P. 12. Moreover, in the absence of service, neither
Scrushy nor Capstone was subject to the court’s jurisdiction in the Madrid Action.
Interpreting the term “against” to include a requirement of complete service
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 26 of 35
27
(1) in the absence of a specific definition within the Policy that excludes any
requirement of service to trigger the application of the exclusion, and (2) in the
presence of the Policy’s definition of “Claim,” which includes service as a necessary
component, is reasonable. Moreover, the interpretation is consistent with general
case authority which addresses the status of named but non-served defendants as
nonparties. See Saucier v. Katz, 533 U.S. 194, 212 n. 1, 121 S. Ct. 2151, 1261 n. 1
(2001) (“Though named as a defendant, Parker was never served with the complaint,
and therefore did not become a party to this litigation.”); Murphy Bros., Inc. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (“[O]ne becomes a party
officially . . . only upon service of a summons or other authority-asserting measure
stating the time within which the party served must appear and defend.”); Loman Dev.
Co. v. Daytona Hotel & Motel Suppliers, Inc., 817 F.2d 1533, 1536 (11th Cir. 1987)
(holding that non-served defendants “were not yet ‘parties’” under Federal Rule of
Civil Procedure 54(b)); Thompson v. Scott, No. 03-40408, 86 Fed. Appx. 17, 18, 2004
WL 57718, at *1 (5th Cir. Jan. 9, 2004) (“. . . Schroedter was never served with
process nor filed an appearance and hence was not a party to the case.”);
Pennsylvania National Mutual Cas. Ins. Co. v. KYM Industries, No. 1:05cv951-CSC,
2006 WL 2414052, *1 n.1 (M.D. Ala. Aug. 21, 2006) (“The other defendant, G & S
Custom Covers, Inc. (‘G & S’), was never properly served, and thus, is not a party to
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 27 of 35
28
this action.”) (internal citation omitted); see also Black’s Law Dictionary (6th ed.
1990) at 1119 (defining parties as “persons who take part in the performance of any
act, or who are directly interested in any affair, contract, or conveyance, or who are
actively concerned in the prosecution and defense of any legal proceeding”) (citing
Green v. Bogue, 158 U.S. 478, 503 (1895) (“‘Parties, in the larger legal sense, are all
persons having a right to control the proceedings to make defense, to adduce and
cross-examine witnesses, and to appeal from the decision, if an appeal lies.’”)).
Therefore, Twin City is unable to show that the “prior litigation” exclusion applies
as a matter of law.
d. The “Fraud” Exclusion
Twin City has also failed to show that the Policy’s “fraud” exclusion applies
as a matter of law either because its interpretation of the provision is unreasonable or,
alternatively, because the language of the exclusion is ambiguous and is subject to
more than one reasonable interpretation. Additionally, the court finds that material
factual disputes preclude the entry of summary judgment as to the exclusion.
Accordingly, Twin City has not carried its burden of showing the application of the
“fraud” exclusion as a matter of law.
Twin City bases its “fraud” exclusion argument upon Martin’s guilty plea in
which he factually admitted that he fraudulently reported the earnings for
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 28 of 35
29
HealthSouth to meet projections and “did not fairly present the financial condition
and operating results of HealthSouth.” Martin’s guilty plea is a judgment admitting
to fraudulent acts pertaining to HealthSouth’s reported earnings and makes no
mention of Capstone. Under the “fraud exclusion,” the critical question becomes
whether the “Claim” against Capstone as set forth in the Tucker Derivative Action is
“based upon, arising from, or in any way related to” Martin’s criminal judgment for
misrepresenting the reported earnings of HealthSouth.
As it pertains to Capstone, the corporate Insured under the Policy, the Tucker
Derivative Action focuses upon allegations that HealthSouth sold properties to
Capstone for below-market values and then leased them back at excessive prices. As
HR Acquisition points out, these particular allegations from the Tucker Derivative
Action translate into an overstatement of HealthSouth’s expenses, rather than an
overstatement of its earnings as described in Martin’s plea.
The “fraud” exclusion is ambiguous in the context of a director or officer’s
engaging in multiple fraudulent schemes or multiple fraudulent acts, resulting in
various types of injuries to numerous parties, and having a judgment entered that
addresses the scope of some of the person’s fraudulent conduct, but not all of it.
Moreover, Alabama case law does not support Twin City’s broad reading of the
“arising” language in the context of an exclusion. See Industrial Chem. & Fiberglass
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 29 of 35
30
v. Hartford Accident & Indem. Co., 475 So. 2d 472, 477 (Ala. 1985) (holding that, to
enforce a “repair operation” exclusion with “arising” language, the insurer had to
“prove that the repair operation was the cause of the bodily injury”); American
Liberty Ins. Co. v. Soules, 288 Ala. 163, 167, 170, 258 So. 2d 872, 875, 878 (Ala.
1972) (equating “arising out of” with “proximate cause”). Therefore, material factual
issues exist as to whether the type of fraud alleged in the Tucker Derivative Action
relating to Capstone is causally connected to or distinct from the type of fraud to
which Martin plead guilty relating to HealthSouth. Accordingly, the “fraud”
exclusion does not apply as a matter of law.
e. “Loss” Under the Policy
Twin City’s final argument on summary judgment is that HR Acquisition (i.e.,
the renamed Capstone) is unable to demonstrate “Loss” under the Policy because it
lacks proof that it is the party “legally liable to pay” the defense expenses incurred
as a result of the Tucker Derivative Action. Twin City has similarly failed to show
that HR Acquisition has not demonstrated “Loss” under the Policy as a matter of law
either because its interpretation of the provision is unreasonable or, alternatively,
because the language of “Loss” is ambiguous and is subject to more than one
reasonable interpretation. Additionally, the court finds that material factual disputes
preclude the entry of summary judgment as to Twin City’s position as to “Loss” under
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 30 of 35
In Bonner v.City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), 8
the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to October 1, 1981.
31
the Policy.
The majority of the documents on summary judgment show that, historically,
HR Acquisition has not paid for any of the defense costs related to the Tucker
Derivative Action. Instead, HRT, the parent of HR Acquisition, and another entity,
ASMI/Birmingham, have paid for HR Acquisition’s past legal fees.
In opposition to summary judgment, HR Acquisition draws a distinction
between contracts to indemnify against liability and contracts to indemnify against
loss and points out that actual payment of legal fees is not necessary to trigger
coverage under the Policy, both from a plain language standpoint and also pursuant
to applicable case law because the Policy is a liability (as opposed to a loss or actual
payment by the insured) contract. See Michel v. American Fire & Cas. Co., 82 F.2d
583, 586 (5th Cir. 1936) (“Again the provision, ‘The indemnity provided hereunder
shall apply only to such liability as may be imposed in civil actions,’ fairly states that
the indemnity is not against payment but against the imposition of liability by
judgment in a civil action.”) ; Little v. MGIC Indem. Corp., 836 F.2d 789, 793 (3d 8
Cir. 1987) (“Under a liability policy, by contrast, the insurer's obligation to pay arises
as soon as the insured incurs liability for the loss; the insured need not pay the loss
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 31 of 35
32
first.”);see also In re Worldcom, Inc., Securities Litigation, 354 F. Supp. 2d 455, 464
(S.D.N.Y. 2005) (“It is a general principle under insurance law, that the obligation to
pay under a liability policy arises as soon as the insured incurs the liability for the
loss, in contrast to an indemnity policy where the obligation is to reimburse the
insured for a loss that the insured has already satisfied.”); cf. Pan Pacific Retail
Properties, Inc. v. Gulf Insurance Co., 471 F.3d 961, 972 (9th Cir. 2006) (“[T]he
definition of ‘Loss’ in the Twin City Policy . . . anticipate[d] that Insuring Agreement
B(1) will not be treated as a liability policy, which would only require that the
insureds incur a legal obligation to pay damages or other expenses for
indemnification by the insurer.”); see also McCuen v. American Cas. Co., 946 F.2d
1401, 1407 (8th Cir. 1991) (holding that an obligation to advance defense costs
“imposes a duty upon the insurer to pay the insureds’ defense costs as they are
incurred”); National Union Fire Ins. Co. v. Brown, 787 F. Supp. 1424, 1434 (S.D.
Fla. 1991) (holding that payment of defense costs were “payable at the time the
directors and officers incur[red] them, not at some future time”).
Relatedly, HR Acquisition also argues that nothing in the Policy prohibits an
Insured from obtaining payment from another source, such as a parent company, in
the form of an advancement on fees. Therefore, the court concludes that a lack of
actual payment by HR Acquisition does not mean that it has suffered no “Loss” as
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 32 of 35
33
defined under the Policy. Cf. Centon Elecs., Inc. v. Bonar, 614 So. 2d 999, 1004
(Ala. 1993) (“Although the collateral source rule is not applicable to a claim for
breach of contract, Bonar is not precluded as a matter of law from recovering under
his contract claim on the ground that he suffered no damage or loss.”). When the
nonbreaching party remains obligated for some portion of the amount paid on its
behalf, the contract claim remains viable. See id. (“[I]t is a basic tenet of contract
law that damages for a breach of contract should not put the injured party in a better
position than he would have been in if there had been performance; however, it is
equally well settled that damages for a breach of contract should return the injured
party to the position the party would have been in had the contract been fully
performed.”).
Finally, HR Acquisition relies upon the affidavit testimony of HRT’s
controller, Glenn Herndon, who states that HR Acquisition remains obligated to HRT
on the advancement of any defenses costs, and further that the Tucker Derivative
Action fees and expenses are now being paid by HR Acquisition directly, including
a recent February 16, 2007, payment in the amount of $25,843.06, and all future
billings. (Doc. #28 at Ex. 4 ¶ 4; id. ¶ 7). Therefore, and alternatively, even if Twin
City is correct that actual payment of defense costs by HR Acquisition is necessary
to effectuate coverage under the Policy (which the court has decided it does not), the
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 33 of 35
34
evidence of a recent legal statement as well as all future invoices being paid directly
by HR Acquisition is sufficient to create a material factual issue as to whether HR
Acquisition has incurred a “Loss” under the Policy. Accordingly,summary judgment
in favor of Twin City on this basis is also due to be denied.
B. Duty to Indemnify
The focus of the parties’ dispute at this stage is over the costs of defense as no
judgment as to Capstone’s liability in the Tucker Derivative Action has been
determined. Therefore, no arguable “Loss” with respect to indemnification under the
Policy has occurred yet.
Twin City seeks summary judgment on its duty to indemnify under the Policy
based upon the same arguments raised against its duty to defend. For the same
reasons stated above asto Twin City’s Motion for Summary Judgment on the the duty
to defend, its Motion also fails as to the duty to indemnify.
V. CONCLUSION
For all the reasons explained above, Twin City’s Motion for Summary
Judgment is due to be denied. The court will enter an order consistent with this
Memorandum Opinion.
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 34 of 35
35
DONE and ORDERED this the 9th day of April, 2007.
VIRGINIA EMERSON HOPKINS
United States District Judge
Case 2:05-cv-02047-VEH Document 32 Filed 04/09/07 Page 35 of 35 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca7-14-01805/USCOURTS-ca7-14-01805-0/pdf.json | [
[
"Defender Security Company",
"Appellant"
],
[
"First Mercury Insurance Company",
"Appellee"
]
] | In the
United States Court of Appeals
For the Seventh Circuit ____________________
No. 14-1805
DEFENDER SECURITY COMPANY,
Plaintiff-Appellant,
v.
FIRST MERCURY INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-00245 — Sarah Evans Barker, Judge.
____________________
ARGUED SEPTEMBER 30, 2014 — DECIDED SEPTEMBER 29, 2015
____________________
Before KANNE, WILLIAMS, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Appellant Defender Security Company (“Defender”) purchased a commercial general liability
insurance policy from Appellee First Mercury Insurance
Company (“First Mercury”). Defender timely tendered a
claim to First Mercury, based on a lawsuit filed against Defender in California state court. First Mercury denied coverage and refused to defend Defender in that lawsuit. Defender filed the instant suit in the Southern District of Indiana,
Case: 14-1805 Document: 34 Filed: 09/29/2015 Pages: 14
2 No. 14-1805
alleging breach of contract and bad faith, and seeking a declaratory judgment that First Mercury owed it a duty to defend. First Mercury filed a motion to dismiss, which the district court granted. We affirm.
I. BACKGROUND
On July 25, 2012, Kami Brown filed a class action complaint in California state court (“the Brown suit”). In her
complaint, she alleged that she contacted Defender by telephone in response to its advertisement for a home security
system. Brown alleged that, over the course of several calls
in May 2012, she provided Defender with personal information, including her full name, address, date of birth, and
social security number.
She claimed that Defender recorded those calls without
her permission and without notifying her of the recording.
She further alleged that Defender used “call recording technology” that allowed it to “record all of its telephonic conversations with consumers” and to “store these recordings
for various business purposes.” According to Brown, Defender “directed, trained, and instructed” its employees and
agents to engage in those recordings. And, Brown alleged,
all class members were subjected to similar conduct, because
Defender “systematically recorded all inbound and/or outbound telephone conversations,” without warning the parties that their conversations were being recorded.
These actions, Brown claimed, constituted violations of
California Penal Code § 632, which prohibits the recording
of confidential telephone communications without the conCase: 14-1805 Document: 34 Filed: 09/29/2015 Pages: 14
No. 14-1805 3
sent of all parties, and § 632.7, which does the same for
communications made from a cellular or cordless phone.1
Defender owned a commercial general liability insurance
policy (“the Policy”) issued by First Mercury. In a section entitled “Insuring Agreement,” the Policy provided as follows:
a. We [i.e., First Mercury] will pay those sums that
the insured [i.e., Defender] becomes legally obligated to pay as damages because of “personal injury”
or “advertising injury” to which this insurance applies. We will have the right and duty to defend the
insured against any “suit” seeking those damages.
However, we will have no duty to defend the insured against any “suit” seeking damages for “personal injury” or “advertising injury” to which this
insurance does not apply. ...
b. This insurance applies to
(1) “Personal injury” caused by an offense arising
out of your business, excluding advertising, publishing, broadcasting or telecasting done by you.
(2) “Advertising injury” caused by an offense committed in the course of advertising your goods,
products or services.
In a separate definitions section, the policy defined both
“advertising injuries” and “personal injuries” as those “arising out of ... [o]ral or written publication of material that violates a person’s right of privacy.”
1 Defender removed the suit to federal court. The parties reached a final
settlement, approved on March 18, 2014. See Kami Brown v. Defender Sec.
Co., No. 2:12CV07319, 2012 WL 5308964 (C.D. Cal. Mar. 18, 2014).
Case: 14-1805 Document: 34 Filed: 09/29/2015 Pages: 14
4 No. 14-1805
Defender provided First Mercury with timely notice of
the Brown suit. It asserted that the lawsuit fell within the advertising injury and personal injury coverage provided by
the Policy. First Mercury denied coverage and refused to defend.
Defender then filed this action in the Southern District of
Indiana, alleging breach of contract and bad faith, and seeking a declaratory judgment that First Mercury owed Defender a duty to defend in the Brown suit. First Mercury filed a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. First Mercury argued that
the Brown suit fell outside the Policy’s coverage, and thus
that it had no duty to defend. The district court granted the
motion to dismiss. Defender appeals.
II. ANALYSIS
We have diversity jurisdiction over this dispute pursuant
to 28 U.S.C. § 1332(a). Defender is an Indiana corporation
with its principal place of business in Indiana. First Mercury
is an Illinois corporation with its principal place of business
in Michigan. The amount in controversy exceeds $75,000.
We review de novo a district court’s grant of dismissal under Rule 12(b)(6). Citadel Grp. Ltd. v. Wash. Reg’l Med. Ctr.,
692 F.3d 580, 591 (7th Cir. 2012). Both parties agree that Indiana law governs.
A. Duty to Defend
In order to establish that an insurer has a duty to defend,
the insured bears the initial burden of establishing that a
claim is covered by his policy. If such a showing is made, the
burden then shifts to the insurer to prove that an exclusion
Case: 14-1805 Document: 34 Filed: 09/29/2015 Pages: 14
No. 14-1805 5
applies. Aearo Corp. v. Am. Int’l Specialty Lines, Ins. Co., 676 F.
Supp. 2d 738, 744 (S.D. Ind. 2009) (applying Indiana law).
The outcome of this case turns on the interpretation of
one word: “publication”. Defender’s Policy requires that, in
order to qualify for coverage under the personal injury and
advertising provisions, the subject injury must arise from
“oral or written publication of material that violates a person’s right of privacy” (emphasis added). So in order to establish coverage, Defender must show that publication was
alleged or at least argued by Brown. The Policy itself does
not define that term, so we must determine the term’s meaning, in the context of the Policy.
Defender argues that in order to constitute publication,
the subject material need not be communicated to any third
party. Neither the Brown complaint nor Defender’s complaint
alleges that Defender communicated the recordings or their
contents to any third party. Neither do they allege that any
employee, agent, or representative accessed or listened to the
recordings after they were made. According to Defender,
publication was achieved when the subject material was
transmitted to Defender’s recording device. In other words,
Defender argues, it “published” the information it received
from Brown when it “transmitted” that material into the recording device. First Mercury argues, on the other hand, that
the definition of “publication” is not as expansive as Defender suggests.
We first consider the plain meaning of the term “publication”. Black’s Law Dictionary provides the following definitions: (1) “[g]enerally, the act of declaring or announcing to
the public;” and in the defamation context, (2) “the communication of defamatory words to someone other than the
Case: 14-1805 Document: 34 Filed: 09/29/2015 Pages: 14
6 No. 14-1805
person defamed.” Black's Law Dictionary 1264–65 (10th ed.
2014). Webster’s Third New International Dictionary defines
publication as “communication (as of news or information)
to the public; public announcement.” Webster’s Third New
International Dictionary, 1836 (1993). And the Oxford English
dictionary defines it as follows:
1.a. The action of making something publicly
known; public notification or announcement; an instance of this.
1.b. Law. Notification or communication to a third
party or to a limited number of people regarded as
representative of the public; an instance of this.
...
3. The action or fact of making a thing public or
common property.
OED Online (Oxford University Press, June 2015).
All of those definitions share a commonality: they describe the release of information by the party holding it. This
comports with a common-sense understanding, and the
common usage, of the term publication. After all, it derives
from the word “public,” or “exposed to general view.” Webster’s Third New International Dictionary, 1836 (1993). In this
case, none of the information obtained by Defender was
communicated to any individual or entity. While it was captured by the recording device, that device was wholly maintained by Defender. And, as we described above, Defender
offered no information to suggest that any individual ever
accessed the recordings.
Yet, Defender argues that the transmission of the information to the recorder constitutes publication, despite the
fact that the information was never accessed or shared. SupCase: 14-1805 Document: 34 Filed: 09/29/2015 Pages: 14
No. 14-1805 7
pose, hypothetically, that Defender had a different policy regarding its incoming customer calls. Imagine that, instead of
recording the calls, a Defender sales associate would speak
to the customer and take copious notes. He would then place
those notes in a paper file, in a filing cabinet. Would that
constitute publication? In both cases, the information has
been received by Defender; it has been transmitted to a storage medium; and it has been stored in a manner that enables
future access.
We see no meaningful distinction between the hypothetical paper notes and the actual audio recording. (The only
obvious distinction is that the recording is stored in an oral
form, whereas the notes would be stored in written form.) If
under Defender’s definition, the recording constitutes publication, so must the notes. In our view, this hypothetical illustrates that Defender’s suggested definition of publication
would encompass a wide variety of acts that would strain (at
best) any common understanding or usage of the term publication.
And Indiana courts have, in the defamation context, applied the common usage definition of “publication”. In Bals
v. Verduzco, the Indiana Supreme Court stated that “[i]n an
action for defamation, the plaintiff must show that the defamatory matter was ‘published,’ that is, communicated to a
third person or persons.” 600 N.E.2d 1353, 1354 (Ind. 1992).
So, under Indiana defamation law, “publication” requires
communication to a third party.
First Mercury relies heavily on Doe v. Methodist Hospital
as establishing that, as a matter of law, publication must consist of communication to a third party. 690 N.E.2d 681 (Ind.
Case: 14-1805 Document: 34 Filed: 09/29/2015 Pages: 14
8 No. 14-1805
1997). We do not agree with First Mercury’s reading of Methodist.
In that case, the Indiana Supreme Court considered
whether Indiana law recognized a cause of action for the
“privacy tort” of public disclosure of private facts. Among
the elements of that tort, according to the Second Restatement, is the requirement that a person must give “publicity”
to the private fact at issue. Id. at 692. Following is the relevant passage from the court’s analysis:
A key issue contested in the briefs is whether
“publicity” requires disclosure to the general public or whether more isolated disclosures are also actionable. According to the Second Restatement,
“publicity” in disclosure law is not the same as
“publication” in defamation law. “Publication” can
consist of communication to just one individual. In contrast, “publicity” requires communication of the information “to the public at large, or to so many
persons that the matter must be regarded as substantially certain to become one of public
knowledge.”
Id. (emphasis added) (quoting Restatement (Second) of Torts
§ 652(D) cmt. a).
So the question facing the Methodist court was whether
“publicity,” as an element of the tort, required the broad dissemination of information. Or, alternatively, could disclosure
to just one individual suffice? The court looked to a related
term, “publication,” in the context of defamation law as a
guide: and in that context, Indiana law established that publication could be achieved by disclosure to just one person.
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No. 14-1805 9
That was the extent of the court’s foray into “publication.” So
Methodist does not render this an open-and-shut case.
But, as we concluded above, Defender’s suggested definition of the term is expansive, and it draws in many activities
that cannot be commonly understood as publication. And in
the defamation context, Indiana law requires that the defamatory material be communicated to a third party to be actionable. As such, we cannot draw the conclusion that publication includes the mere recording and storage of information when that information is not also communicated to
another party or entity.
Defender argues in the alternative that, even if publication does not include transmission to a recording device, the
term “publication” is ambiguous. Therefore, “it is to be construed strictly against the insurer and in favor of its insured,” triggering First Mercury’s duty to defend.
Under Indiana law, a “failure to define terms in an insurance policy does not necessarily make it ambiguous.” Am.
Family Life Assurance Co. v. Russell, 700 N.E.2d 1174, 1177
(Ind. Ct. App. 1998) (citation omitted). And “[a]n ambiguity
does not exist simply because a controversy exists between
the parties, each favoring an interpretation contrary to the
other.” Newnam Mfg., Inc. v. Transcon. Ins. Co., 871 N.E.2d
396, 401 (Ind. Ct. App. 2007) (citations omitted). Rather, “an
ambiguity exists where the provision is susceptible to more
than one reasonable interpretation.” Russell, 700 N.E.2d at
1177. Where there is ambiguity, “insurance policies are to be
construed strictly against the insurer.” Newnam, 871 N.E.2d
at 401 (citation omitted).
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10 No. 14-1805
Here, the parties each favor a specific interpretation of
the term “publication.” Defender argues that the term publication is susceptible to its definition, and it points to a decision of the United States District Court of the Southern District of Ohio as supporting its view. In that case, under similar facts, the district court concluded that publication occurred at the moment that the conversation was disseminated to the recording device. See Encore Receivable Mgmt., Inc. v.
Ace Prop. and Cas. Ins. Co., No. 1:12-cv-297, 2013 WL 3354571,
at *9 (S.D. Oh. Jul. 3, 2013), vacated on May 19, 2014.
But, as noted, Encore was vacated while on appeal. Id. Defender cites to no other cases that establish its view of publication. For the reasons we described above, including Indiana’s definition of publication in the defamation context, we
conclude that the term publication was not susceptible to
Defender’s interpretation. It was not ambiguous as used in
the Policy.
B. Dismissal at the Pleading Stage
Defender argues that the district court erred by “prematurely” granting First Mercury’s motion to dismiss. It contends that First Mercury had a duty to investigate the underlying Brown claims before refusing to defend, and that it had
not adequately investigated those claims at the time that it
filed its 12(b)(6) motion. First Mercury argues that it had no
duty to investigate the underlying facts, because it was clear
from the face of the Policy and the Brown complaint that Defender’s claims were not covered by the Policy.
We “determine [an] insurer’s duty to defend from the allegations contained within the complaint and from those
facts known or ascertainable by the insurer after reasonable
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No. 14-1805 11
investigation.” Newnam, 871 N.E.2d at 401 (citations omitted). But, “[i]f the pleadings reveal that a claim is clearly excluded under the policy, then no defense is required.” Id. at
401 (emphasis added) (citation omitted). Or, “when the underlying factual basis of the complaint, even if proved true,
would not result in liability under the insurance policy, the
insurance company can properly refuse to defend.” Monroe
677 N.E.2d at 623 (emphasis in original) (citing Cincinnati
Ins. Co. v. Mallon, 409 N.E.2d 1100, 1105 (Ind. Ct. App. 1980)).
Defender’s claim is this: if Defender were permitted to
move past the pleading stage into discovery, it could “likely
show” that the recordings were “communicated to others
within the organization.” And therefore, the recordings
would meet the “publication” requirement imposed by the
Policy.
The first problem with Defender’s argument is that it
didn’t need discovery to uncover whether the recordings
had been communicated to others within its organization.
Defender possessed that information from the outset—it was
Defender’s information, within its access and control. But at no
point did Defender allege that any individual accessed the
recordings—not in its complaint, its opposition to summary
judgment, or its briefs to this court.
Defender contends that it could not have raised those allegations at the pleading stage, because “attaching evidence
at the 12(b)(6) stage to send the Court on a fact-finding mission would have been inappropriate.” Defender, however,
misunderstands the pleading requirements imposed by the
Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8,
12(b)(6). To survive dismissal, the complaint must give
enough factual information to "state a claim to relief that is
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12 No. 14-1805
plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
547 (2007). But “allegations in the form of legal conclusions
are insufficient.” McReynolds v. Merrill Lynch & Co., 694 F.3d
873, 885 (7th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). As are “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.”
Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).
Defender is incorrect in contending that it was procedurally precluded from providing any facts at the pleading
stage to allege that the recordings were communicated to
third parties. Defender’s complaint did not plausibly allege
why the Policy provided coverage under the circumstances
Defender faced. Nor did it detail why First Mercury’s refusal
to defend constituted a breach of its duty to defend. The
complaint merely stated that such a duty existed, and that
“[t]he grounds set forth by FMIC for denying coverage are
unfounded, groundless, and made in bad faith in an effort to
delay and deny making payment under the policy.” But “allegations in the form of legal conclusions are insufficient” to
survive dismissal, and by that standard Defender’s complaint was already on weak ground. McReynolds, 694 F.3d at
885.
Defender could have alleged facts supporting its argument that the policy provided it coverage (even under First
Mercury’s narrower definition of “publication”), and therefore imposed a duty to defend on First Mercury. That would
have required some allegation about publication (i.e., to a
third party) of the recordings at issue. We agree with Defender that it was not required to attach affidavits in support
of its factual allegations. But if it needed to establish certain
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No. 14-1805 13
facts as grounds for relief, it should have alleged those facts
in its complaint or at least asserted them in opposing dismissal in the district court. After all, nothing prevents a plaintiff
opposing dismissal from elaborating on the complaint or
even attaching materials to an opposition brief illustrating
the facts the plaintiff expects to be able to prove. See Runnion
v. Girl Scouts of Greater Chi. and Nw. Ind., 786 F.3d 510, 528 n.8
(7th Cir. 2015) (citing Geinosky v. City of Chicago, 675 F.3d 743,
745 n.1 (7th Cir. 2012). Of course, Defender did not have to
prove the facts at the motion to dismiss stage, but it did have
to plead them or at least bring them to the district court’s attention in opposing the motion to dismiss.
As we have already concluded, “a plaintiff must provide
only enough detail to give the defendant fair notice of what
the claim is and the grounds upon which it rests, and,
through his allegations, show that it is plausible, rather than
merely speculative, that he is entitled to relief.” Reger Dev.,
LLC v. Nat'l City Bank, 592 F.3d 759, 763–64 (7th Cir. 2010)
(internal quotes omitted) (citing Tamayo v. Blagojevich, 526
F.3d 1074, 1081, 1083 (7th Cir. 2008)), as amended (Dec. 16,
2010). If, to establish coverage under the Policy, Defender
eventually needed to prove that publication occurred, it
should have pled sufficient facts to make that showing, or
elaborated in its opposition brief on the facts it intended to
prove. But Defender did neither.
Defender’s argument here is in essence an attempt to
“argue in the alternative” on appeal without having presented the alternative argument below. In the district court, Defender put all of its eggs in the “publication-meansrecording” basket. It did not raise the alternative argument
that even if First Mercury’s narrower definition of “publicaCase: 14-1805 Document: 34 Filed: 09/29/2015 Pages: 14
14 No. 14-1805
tion” prevailed, Defender satisfied the narrower definition
because it communicated the recordings to third parties. Defender could have alleged that fact in its pleadings—after all,
if Defender did communicate the recordings to others, then
it knew or should have known that fact. But Defender did
not allege it. Nor did it make the argument in its opposition
to the motion to dismiss, or move to amend the complaint.
The district court committed no error by not considering an
argument Defender never made, based on facts it did not allege.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of First Mercury’s motion to dismiss the Defender
complaint.
Case: 14-1805 Document: 34 Filed: 09/29/2015 Pages: 14 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-14-07561/USCOURTS-ca4-14-07561-0/pdf.json | [
[
"George M. Hinkle",
"Appellee"
],
[
"Joseph Nobrega",
"Appellant"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7561
JOSEPH NOBREGA,
Petitioner - Appellant,
v.
GEORGE M. HINKLE, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cv-00381-LO-JFA)
Submitted: January 15, 2015 Decided: January 21, 2015
Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Joseph Nobrega, Appellant Pro Se. Eugene Paul Murphy, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Joseph Nobrega seeks to appeal the district court’s
order treating his Fed. R. Civ. P. 60(b) motion as a successive
28 U.S.C. § 2254 (2012) petition, and dismissing it on that
basis. 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); Reid v. Angelone, 369 F.3d 363, 369 (4th
Cir. 2004). 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 Nobrega has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
Appeal: 14-7561 Doc: 7 Filed: 01/21/2015 Pg: 2 of 3
3
Additionally, we construe Nobrega’s notice of appeal
and informal brief as an application to file a second or
successive § 2254 petition. United States v. Winestock, 340
F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization
to file a successive § 2254 petition, a prisoner must assert
claims based on either: (1) a new rule of constitutional law,
previously unavailable, made retroactive by the Supreme Court to
cases on collateral review; or (2) newly discovered evidence,
not previously discoverable by due diligence, that would be
sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would
have found the petitioner guilty of the offense. 28 U.S.C.
§ 2244(b)(2) (2012). Nobrega’s claims do not satisfy either of
these criteria. Therefore, we deny authorization to file a
successive § 2254 petition.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED
Appeal: 14-7561 Doc: 7 Filed: 01/21/2015 Pg: 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_17-cv-05914/USCOURTS-cand-3_17-cv-05914-1/pdf.json | [
[
"City and County of San Francisco",
"Defendant"
],
[
"Scott Daniels",
"Plaintiff"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SCOTT DANIELS,
Plaintiff,
v.
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant.
Case No. 17-cv-05914-MEJ
ORDER SCREENING THIRD
AMENDED COMPLAINT
INTRODUCTION
On October 16, 2017, Plaintiff Scott Daniels filed a Complaint and an Application to
Proceed In Forma Pauperis. Compl., Dkt. No. 1; Appl., Dkt. No. 3. The Court granted Plaintiff’s
Application and screened the Complaint, dismissing it with leave to amend. First Screening
Order, Dkt. No. 5. The Court screened the First Amended Complaint (FAC), and ordered issuance
of summons and service upon Defendant City and County of San Francisco. See FAC, Dkt. No. 6;
Second Screening Order, Dkt. No. 7. Without leave of Court, Plaintiff filed a Second Amended
Complaint (SAC, Dkt. No. 9), which the Court struck (Minutes, Dkt. No. 17). Defendant
answered the FAC. Dkt. No. 12.
At the Initial Case Management Conference, the Court granted Plaintiff leave to file a third
amended complaint, which Plaintiff filed. See Minutes; Case Sched. Order, Dkt. No. 22; Third
Am. Compl. (TAC), Dkt. No. 24. The Court now screens the TAC pursuant to 28 U.S.C. §
1915(e)(2).
SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2)
A. Legal Standard
While the Court has granted Plaintiff’s Application to Proceed In Forma Pauperis, it must
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also review the TAC to determine whether the action may be allowed to proceed. The Court must
dismiss the TAC if it is frivolous, fails to state a claim upon which relief can be granted, or seeks
monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
To make this determination, courts assess whether there is a factual and legal basis for the asserted
wrong, “however inartfully pleaded.” Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.
1984) (quotation omitted). Pro se pleadings are liberally construed. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam). Moreover, the Ninth Circuit has “repeatedly held that a district court
should grant leave to amend even if no request to amend the pleading was made, unless it
determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Unless it is clear that no amendment can cure the
defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an
opportunity to amend before dismissal. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
Federal Rule of Civil Procedure 8 requires Plaintiff to provide a “short and plain
statement” of the claims, but “more than an unadorned, the defendant-unlawfully-harmed-me
accusation” to help the Court logically connect how the defendant caused Plaintiff’s injury and
show what claims for relief exist. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted).
“[A] plaintiff’s obligation to provide the ‘grounds’ for . . . ‘entitlement to relief’ requires more
than labels and conclusions . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For
instance, in Ashcroft, the Supreme Court rejected conclusory assertions that “petitioners ‘knew of,
condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of
confinement ‘as a matter of policy, solely on the account of [his] religion, race, and/or national
origin and for no legitimate penological interest.’” 556 U.S. at 680. The Court reasoned that such
allegations were akin to the “formulaic recitation of the elements” dismissed in Twombly, and
therefore, insufficient to meet Rule 8(a). Id. In doing so, the Court explained, “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
B. Allegations in the Complaint
The only amendment Plaintiff has made in the TAC pertains to the Battery claim. See
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TAC ¶ 45 (abandoning allegation that Defendants slammed Plaintiff to the ground, punched, and
kicked him; retaining allegation that Defendants placed Plaintiff in debilitating control holds and
placed unnecessary weight on his back and head; adding allegation that Defendants forced
Plaintiff to sit on filthy ground). The Court’s present screening analysis accordingly does not
change materially from the analysis it applied in screening the FAC.
Plaintiff asserts a number of claims arising from his arrest by SFPD Officers on or about
October 15, 2015. He alleges Does 1 and 2 are SFPD Officers who acted under color of authority
and/or under state law, and committed these acts pursuant to custom or policies adopted by the
City and County of San Francisco. TAC ¶¶ 7-9, 11-12, 14, 23. Plaintiff alleges Doe 1 instructed
him to stop on the street, but when Plaintiff began to leave after confirming he was not being
detained, Doe 1 again instructed him to stop and detained him. Id. ¶¶ 15-16. Doe 2 was present;
Does 1 and 2 repeatedly verbally admonished Plaintiff; taunted him; used slurs against him; and
indicated Plaintiff did not need an attorney, should answer questions, and should submit to
detention and questioning. Id. ¶ 18. Plaintiff was arrested for asserting his rights; he was
handcuffed in an unlawfully tight fashion and left to sit in a hot patrol car for a significant period
of time; he also was placed in debilitating control holds and unnecessary weight was placed on his
back and head. Id. ¶¶ 19-20, 45.
Plaintiff asserts three claims under 42 U.S.C. § 1983: (1) unlawful search and seizure in
violation of his rights under the Fourth and Fourteenth Amendments of the United States
Constitution; (2) excessive force in violation of his rights under the Fourth and Fourteenth
Amendments; and (3) violations of his right to petition the government for a redress of grievances
under the First Amendment. Plaintiff also asserts a number of claims under California state law:
violation of the Bane Act, Cal. Civ. Code § 52.1; assault; battery; and negligence. Plaintiff names
the City and County of San Francisco and Does 1 and 2 as defendants. The caption of the TAC
lists an eighth claim for negligent infliction of emotional distress, but Plaintiff does not actually
assert such a claim in the TAC.
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C. Analysis and Screening
1. Federal Claims
Under Section 1983, “every person who, under color of any statute . . . custom, or usage of
any State . . . subjects, or causes to be subjected, any . . . person within the jurisdiction of [the
United States] to the deprivation of any rights, privileges or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law.” Flores v. Cty. of
L.A., 758 F.3d 1154, 1158 (9th Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978), and other cases). To plead a Section 1983 claim against an individual, Plaintiff must
allege (1) the conduct that harmed him was committed under color of state law (i.e., state action),
and (2) the conduct deprived him of a constitutional right. See Ketchum v. Alameda Cty., 811 F.2d
1243, 1245 (9th Cir. 1987).
In dismissing the original Complaint, which asserted claims against officer defendants
Does 1-10 as well as against two named individuals, the Court explained Plaintiff must allege how
each Defendant personally participated in the deprivation of his rights and how each acted under
color of state law. See First Screening Order at 4, Dkt. No. 5. In the TAC, Plaintiff alleges how
Does 1 and 2 (both police officers) participated in the deprivation of his rights. See TAC ¶¶ 7-20,
33, 45. The TAC states facially plausible Section 1983 claims against Does 1 and 2 for
deprivation of Plaintiff’s rights under the First, Fourth, and Fourteenth Amendments.
The Court previously explained that “[n]either state officials nor municipalities are
vicariously liable for the deprivation of constitutional rights by employees.” First Screening Order
at 4 (quoting Flores, 758 F.3d at 1158). Therefore, to plead a Section 1983 claim against a
municipality for a violation of constitutional rights resulting from governmental inaction or
omission, Plaintiff must allege (1) he possessed a constitutional right of which he was deprived;
(2) the municipality had a policy; (3) this policy amounts to deliberate indifference to Plaintiff’s
constitutional rights; and (4) the policy is the moving force behind the constitutional violation.
See Plumeau v. Sch. Dist. #40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). A plaintiff may
establish Monell liability by “prov[ing] that an officer committed the alleged constitutional
violation pursuant to a formal governmental policy or a longstanding practice or custom which
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constitutes the standard operating procedure of the local governmental entity.” Wilson v. Fla.
Dep’t of Revenue, 2015 WL 136557, at *6 (N.D. Cal. Jan. 8, 2015) (internal quotation marks
omitted). “In the alternative, Monell liability may be established where the ‘individual who
committed the constitutional tort was an official with final policy-making authority’ or ‘an official
with final policy-making authority ratified a subordinate’s unconstitutional decision or action and
the basis for it.’” Id. (internal citations omitted). But municipalities are not liable under Section
1983 if they do not have the power to remedy the alleged violation. See Estate of Brooks v. United
States, 197 F.3d 1245, 1248-49 (9th Cir. 1999) (upholding dismissal of § 1983 excessive detention
claim against county because, under state statute, county did not have power either to release
federal detainee or bring him before federal judge).
Plaintiff alleges the conduct he complains of was taken due to a custom or policy of the
City and County of San Francisco (TAC ¶¶ 2, 14), and more specifically alleges “policies and
customs to allow officers to detain persons such as plaintiff without probable cause or reasonable
suspicion for failing to give ‘proper deference’ to police officers” (id. ¶ 23). “In order to
withstand a motion to dismiss for failure to state a claim, a Monell claim must consist of more than
mere ‘formulaic recitations of the existence of unlawful policies, conducts or habits.’” Bedford v.
City of Hayward, 2012 WL 4901434, at *12 (N.D. Cal. Oct. 15, 2012) (quoting Warner v. Cty. of
San Diego, 2011 WL 662993, at *4 (S.D. Cal. Feb. 14, 2011)). Plaintiff sufficiently alleges for
purposes of screening that a specific City and County policy was the moving force behind the
violation of Plaintiff’s rights to be free from unreasonable search and seizure under the Fourth and
Fourteenth Amendments, and to be free from retaliation for exercising free speech under the First
Amendment: the City’s policy and custom of allowing its officers to detain persons such as
Plaintiff under the circumstances alleged in the TAC. Plaintiff, however, does not identify any
policy or custom pertaining to the violation of his right to be free from excessive force under the
Fourth and Fourteenth Amendments.
For purposes of screening, the TAC states federal claims upon which relief can be granted
as to Does 1 and 2, and the City and County of San Francisco.
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2. State Law Claims
The Bane Act prohibits “a person or persons, whether or not acting under color of law,
[from] interfere[ing] by threats, intimidation, or coercion, or [from] attempt[ing] to interfere by
threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals
of rights secured by the Constitution or laws of the United States, or of the rights secured by the
Constitution or laws of this state. . . .” Cal. Civ. Code § 52.1. Plaintiff plausibly alleges violations
of his constitutional rights (see supra), and that Does 1 and 2 used threats, intimidation, and
coercion to interfere with those rights (TAC ¶¶ 17-18, 45). The TAC therefore plausibly alleges
the elements of a Bane Act claim, and the City and County of San Francisco may be held
vicariously liable for its police officers’ violations of the Bane Act. See D.V. v. City of Sunnyvale,
65 F. Supp. 3d 782, 787 (N.D. Cal. 2014) (citing cases holding cities liable under respondeat
superior for Bane Act violations of police officers). The allegations of the TAC are sufficient to
show for screening purposes the City and County of San Francisco is a proper defendant to the
Bane Act claim here.
To state a battery claim under California law, Plaintiff must allege: (1) Defendants
intentionally did an act that resulted in harmful or offensive contact with his person; (2) Plaintiff
did not consent to the contact; and (3) the contact caused Plaintiff injury, damage, loss or harm.
See Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007). Plaintiff sufficiently alleges these
elements as to Does 1 and 2 for screening purposes. See TAC ¶¶ 45-47. California police officers
who use unreasonable force to make an arrest are not immune from liability. See Robinson v.
Solano Cty., 278 F.3d 1007, 1016 (9th Cir. 2002) (police officers not immune from suit under
California law for using excessive force in arresting a suspect). Although the battery claim alleges
“Does 1-10” battered Plaintiff, the TAC alleges no facts regarding the conduct or position of any
individual defendant other than Does 1 and 2. The TAC accordingly does not state a battery claim
against any individual defendant other than Does 1 and 2.
To state an assault claim under California law, Plaintiff must allege: “(1) that Defendants
intended to cause harmful or offensive contact, or the imminent apprehension of such contact, and
(2) that Plaintiff was put in imminent apprehension of such contact.” Brooks v. United States, 29
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Northern District of California
F. Supp. 2d 613, 617 (N.D. Cal. 1998). Plaintiff alleges that Defendants 1 and 2 intentionally
caused harmful contact (TAC ¶¶ 41, 45), and that Plaintiff was placed in fear of an immediate
harmful offensive touching (id. ¶ 42). For purposes of screening pursuant to Section 1915(e)(2),
the TAC states an assault claim against Does 1 and 2.
To state a negligence claim under California law, Plaintiff must allege (1) a legal duty to
use due care; (2) a breach of that duty; and (3) an injury that was proximately caused by the
breach. See Ladd v. Cty. of San Mateo, 12 Cal. 4th 913, 917 (1996). Police officers have a duty
not to use excessive force (Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1101 (2004)),
and have a duty to intercede when their fellow officers violate the constitutional rights of a citizen
(Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000)). The TAC alleges Does 1 and 2
breached that duty by using excessive force. Plaintiff alleges he was harmed by that conduct. The
TAC thus plausibly states a negligence claim against Does 1 and 2.
The City and County of San Francisco may be vicariously liable for Plaintiff’s common
law claims based on excessive force. See Robinson, 278 F.3d at 1016 (governmental entity
employing police officers can be held vicariously liable when officers use excessive force in the
course and scope of employment). The TAC also alleges a claim was filed pursuant to the
California Government Tort Claims Act. TAC ¶ 3. Thus, Plaintiff plausibly states claims against
the City and County of San Francisco based on its vicarious liability for assault, battery, and
negligence by Does 1 and 2.
CONCLUSION
The Court finds that, liberally construed, the TAC plausibly alleges the following claims
that are not frivolous and that do not seek relief against immune defendants:
(1) Section 1983 claims against Does 1 and 2 for violations of Plaintiff’s Constitutional
rights to free speech, to be free from unlawful search and seizure, and to be free from use of
excessive force against Does 1 and 2.
(2) Monell claims against the City and County of San Francisco for violations of
Plaintiff’s right to free speech and to be free from unlawful search and seizure.
(3) A Bane Act claim against Does 1 and 2 and the City and County of San Francisco.
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United States District Court
Northern District of California
(4) Assault, battery, and negligence claims against Does 1 and 2 and the City and
County of San Francisco.
The City and County of San Francisco shall respond to the TAC no later than April 19,
2018.
IT IS SO ORDERED.
Dated: April 2, 2018
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge
Case 3:17-cv-05914-LB Document 25 Filed 04/02/18 Page 8 of 8 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_06-cv-00808/USCOURTS-caed-1_06-cv-00808-3/pdf.json | [
[
"Hector Melgoza Bolanos",
"Petitioner"
],
[
"Richard J. Kirkland",
"Respondent"
]
] | 1
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1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
HECTOR MELGOZA BOLANOS, )
)
Petitioner, )
)
v. )
)
)
RICHARD J. KIRKLAND, )
)
Respondent. )
____________________________________)
1:06-cv-00808-AWI-TAG HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR WRIT OF
HABEAS CORPUS FOR VIOLATION OF
THE ONE-YEAR STATUTE OF
LIMITATIONS (Doc. 1)
ORDER REQUIRING OBJECTIONS TO BE
FILED WITHIN FIFTEEN DAYS
PROCEDURAL HISTORY
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The instant federal petition for writ of habeas corpus was filed on
June 26, 2006. (Doc. 1). On January 18, 2008, issued an Order to Show Cause, directing Petitioner
to file a response within thirty days to show why the petition should not be dismissed as untimely.
(Doc. 8). On February 25, 2008, Petitioner filed his response, which does not dispute the Court’s
calculation of time and statutory tolling, but instead makes an implicit allegation of entitlement to
equitable tolling based on problems Petitioner experienced with locating his legal files when
transferred from one prison to another and his difficulties in accessing the prison law library.
(Doc. 9).
///
///
Case 1:06-cv-00808-AWI-TAG Document 10 Filed 04/04/08 Page 1 of 7
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DISCUSSION
A. Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition
if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is
not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of
habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to
dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.
2001).
The Ninth Circuit, in Herbst v. Cook, concluded that a district court may dismiss sua sponte a
habeas petition on statute of limitations grounds so long as the court provides the petitioner adequate
notice of its intent to dismiss and an opportunity to respond. Herbst, 260 F.3d at 1041-1042. The
Court has provided Petitioner notice of its concern regarding the timeliness of the petition, and has
afforded Petitioner an opportunity to respond.
B. Limitation Period for Filing a Petition for Writ of Habeas Corpus
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas
corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059
(1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), overruled on other grounds
by Lindh v. Murphy, 521 U.S. 320. The instant petition is subject to the AEDPA because it was
filed on June 26, 2006.
The AEDPA imposes a one year period of limitation on petitioners seeking to file a federal
petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d)
reads:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of –
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
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(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
In most cases, the limitation period begins running on the date that the petitioner’s direct
review became final. The California Court of Appeal affirmed Petitioner’s conviction on October 1,
2003. Petitioner did not file a petition for review. According to the California Rules of Court, a
decision becomes final thirty days after filing, and an appeal must be taken to the California Supreme
Court within ten days of finality. Rule 24(a), 28(b), Cal.R.Ct. Thus, in the absence of a timely filed
petition for review in the California Supreme Court, direct review would have concluded forty days
after October 1, 2003, or on November 10, 2003. Petitioner would then have had one year, or until
November 10, 2004, within which to file his federal petition.
As mentioned, the instant petition was not filed until June 21, 2006, some nineteen months
after the one-year period had expired. Thus, unless Petitioner is entitled to statutory or equitable
tolling, the instant petition is untimely.
C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2)
Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application
for State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). In
Nino v. Galaza, the Ninth Circuit held that the “statute of limitations is tolled from the time the first
state habeas petition is filed until the California Supreme Court rejects the petitioner’s final collateral
challenge.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999); see also Taylor v. Lee, 186 F.3d
557 (4th Cir. 1999); Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999). The Ninth Circuit
reasoned that tolling the limitations period during the time a petitioner is preparing his petition to file
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The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose 1
accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir.
1993). The record of state court proceeding is a source whose accuracy cannot reasonably be questioned, and judicial notice
may be taken of court records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise
Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd., 645 F.2d 699 (9th Cir. 1981); see also Colonial Penn Ins. Co.
v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980).
As such, the internet website for the California Courts, containing the court system’s records for filings in the Court of Appeal
and the California Supreme Court are subject to judicial notice.
The Court notes that the order Petitioner has provided from the California Supreme Court denying his state habeas 2
petition indicates that the California Supreme Court denied the petition by citing In re Dixon, 41 Cal.2d 756 (1953) and In
re Waltreus, 62 Cal.2d 218 (1965), both of which indicate that the court procedurally barred the petition for untimeliness
rather than denied the petition on its merits. Accordingly, it may be that the petition was not “properly filed” under the
AEDPA and thus Petitioner would not be entitled to statutory tolling for the pendency of the state petition. Bonner v. Carey,
425 F.3d 1145, 1149 (9th Cir. 2005). However, because it appears that the petition is untimely regardless of statutory tolling,
the Court will not specifically address this issue.
4
at the next appellate level reinforces the need to present all claims to the state courts first and will
prevent the premature filing of federal petitions out of concern that the limitation period will end
before all claims can be presented to the state supreme court. Nino, 183 F.3d at 1005. However, the
limitations period is not tolled for the time such an application is pending in federal court. Duncan
v. Walker, 533 U.S. 167, 181-182, 121 S.Ct. 2120 (2001).
Here, Petitioner asserts that he exhausted issues in a state habeas petition before the
California Supreme Court. The Court takes judicial notice of the records of the California Supreme
Court, as reflected in the California court system’s electronic database, which indicate that 1
Petitioner filed his state habeas petition on July 15, 2004 and that it was denied on June 22, 2005.
Thus, assuming the petition was properly filed, Petitioner would have been entitled to statutory 2
tolling during that period. At the time he filed the state petition, 247 days had already passed of
Petitioner’s one-year AEDPA period, the span of time between the commencement of the one-year
period on November 11, 2003 and the filing of his state petition on July 15, 2004. When the state
petition was denied on June 22, 2005 and the one-year period re-commenced to run, therefore,
Petitioner had only 118 days remaining on his one-year limitations period. Unfortunately, Petitioner
waited over one full year, 369 days, until June 26, 2006, to file the instant petition. Thus, even with
statutory tolling for the pendency of his state petition, the instant federal petition is untimely by 251
days.
///
///
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D. Equitable Tolling
The limitations period is subject to equitable tolling if the petitioner demonstrates that
“extraordinary circumstances beyond [his] control” have made it impossible for the petition to be
filed on time. Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998)(citing AlvarezMachain v. United States, 107 F.3d 696, 701 (9th Cir. 1997)); Calderon v. United States District
Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other gronds by Calderon
v. United States District Court (Kelly), 163 F. 3d 530 (noting that “[e]quitable tolling will not be
available in most cases, as extensions of time will only be granted if ‘extraordinary circumstances’
beyond a prisoner’s control make it impossible to file a petition on time”). “When external forces,
rather than a petitioner’s lack of diligence, account for the failure to file a timely claim, equitable
tolling of the statute of limitations may be appropriate.” Id.; Miles v. Prunty, 187 F.3d 1104, 1107
(9th Cir. 1999).
In Allen v. Lewis, 255 F.3d 798, 801 (9th Cir. 2001), the Ninth Circuit concluded that the
petitioner “must show that the ‘extraordinary circumstances’ were the but-for and proximate cause of
his untimeliness.” The Ninth Circuit reaffirmed this rule in Espinoza-Matthews v. California, 432
F.3d 1021, 1026 (9th Cir. 2005). In that case, the Ninth Circuit pointed out that the determination
vis-a-vis equitable tolling is “highly fact-dependent” and that the petitioner “bears the burden of
showing that equitable tolling is appropriate.” Id.
Petitioner has made no express claim of entitlement to equitable tolling. However, in his
response to the Order to Show Cause, Petitioner makes an implicit claim for equitable tolling,
contending that because he is incarcerated in a maximum security prison, his access to the prison
law library is curtailed, and that, further, on September 29, 2005, he was stripped of all personal
property and transferred to the Administrative Segregation Unit, but was only able to recover his
property, including legal materials, at a later time. (Doc. 9, pp. 3-4).
None of the circumstances described by Petitioner in his response are sufficient to establish
entitlement to equitable tolling. Petitioner’s implicit claim of ignorance of the law is insufficient to
justify equitable tolling. See, e.g., Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th
Cir.1986) (pro se prisoner's illiteracy and lack of knowledge of law unfortunate but insufficient to
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establish cause); Fisher v. Johnson, 174 F.3d 710, 714-715 (5th Cir. 1999); Rose v. Dole, 945 F.2d
1331, 1335 (6th Cir. 1991). Moreover, prison lockdowns or library closures do not constitute
extraordinary circumstances warranting equitable tolling in this case. See United States v. Van
Poyck, 980 F.Supp. 1108, 1111 (C.D. Cal.1997) (inability to secure copies of transcripts from court
reporters and lockdowns at prison lasting several days and allegedly eliminating access to law
library were not extraordinary circumstances and did not equitably toll one-year statute of
limitations); Atkins v. Harris, 1999 WL 13719, *2 (N.D.Cal. Jan.7, 1999) (“lockdowns, restricted
library access and transfers do not constitute extraordinary circumstances sufficient to equitably toll
the [AEDPA] statute of limitations. Prisoners familiar with the routine restrictions of prison life
must take such matters into account when calculating when to file a federal [habeas] petition....
[petitioner’s alleged lack of legal sophistication also does not excuse the delay.”); Girdles v.
Ramirez-Palmer, 1998 WL 775085, *2 (N. D.C.L.1998) (holding that prison lockdowns do not
constitute extraordinary circumstances warranting equitable tolling).
Petitioner’s indigent status and limited legal knowledge, as well as his status as an
incarcerated individual, are not circumstances that distinguish him from the great majority of
prisoners attempting to file petitions for writ of habeas corpus in this Court. To the contrary, such
circumstances are not in any way extraordinary and do not justify equitable tolling. If limited
resources, lack of legal knowledge, and the difficulties of prison life were an excuse for not
complying with the limitation period, the AEDPA’s limitation period would be meaningless since
virtually all incarcerated prisoners have these same problems in common. While undoubtedly these
circumstances would make it more difficult to file a timely petition and would require a
correspondingly greater effort by a prisoner, the evidence presented by Petitioner does not establish
that these circumstances alone were the “but for” cause of the petition’s late filing. Allen, 255 F.3d
at 801.
Moreover, Petitioner’s lack of access to the law library due to his being placed in the
Administrative Segregation Unit (“AS”) appears to be a direct result of Petitioner’s own misconduct
in prison. The AS Placement Notice Petitioner provided in his response to the Order to Show Cause
indicates that Petitioner was placed in AS for a 26 month term “based on CDC 115
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dated 9/29/05 for Attempted Murder....” (Doc. 9, EXS. C). Under such circumstances, Petitioner
cannot legitimately contend that the consequence of such prison misconduct, i.e., placement in AS
and restricted access to the law library, was the result of “extraordinary circumstances beyond his
control.” (Beeler), 128 F.3d at 1288. Thus, the limitation period will not be equitably tolled.
RECOMMENDATIONS
Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus (Doc. 1),
be DISMISSED for violation of the AEDPA’s one-year limitation period.
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)(B) and Rule 72-304 of the
Local Rules of Practice for the United States District Court, Eastern District of California. Within
fifteen (15) days after being served with a copy, 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.” Replies to the objections shall be served and filed within
ten (10) court days (plus three days if served by mail) after service of the objections. The District
Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The
parties are advised that failure to file objections within the specified time may waive the right to
appeal the District Judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
Dated: April 3, 2008 /s/ Theresa A. Goldner
j6eb3d UNITED STATES MAGISTRATE JUDGE
Case 1:06-cv-00808-AWI-TAG Document 10 Filed 04/04/08 Page 7 of 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-15-02258/USCOURTS-ca4-15-02258-2/pdf.json | [
[
"Bette J.T. Jones",
"Appellant"
],
[
"North Carolina Department of Transportation",
"Appellee"
]
] | ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2258
BETTE J.T. JONES,
Plaintiff – Appellant,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:15-cv-00170-GCM)
Submitted: August 26, 2016 Decided: September 6, 2016
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Bette J.T. Jones, Appellant Pro Se. Kenneth Andrew Sack, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 15-2258 Doc: 42 Filed: 09/06/2016 Pg: 1 of 3
2
PER CURIAM:
Bette J.T. Jones appeals the district court’s orders
denying her notice of removal and remanding her civil action to
state court for further proceedings and denying her motions for
reconsideration. After we dismissed her appeal as untimely,
Jones filed a petition for rehearing providing additional
information on the timeliness of the notices of appeal. We
grant the petition for rehearing, thus vacating our previous
order dismissing as untimely, and dismiss in part and affirm in
part the district court’s orders denying the notice of removal
and remanding the case to state court and denying Jones’ motions
for reconsideration.
With certain exceptions, “[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) (2012). The Supreme
Court has limited the scope of § 1447(d) to prohibiting
appellate review of remand orders based on a defect in the
removal procedure or lack of subject matter jurisdiction.
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711–12 (1996);
see 28 U.S.C. § 1447(c) (2012). However, 28 U.S.C. § 1443
(2012) authorizes removal from state court of “civil actions ...
[a]gainst any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the
Appeal: 15-2258 Doc: 42 Filed: 09/06/2016 Pg: 2 of 3
3
equal civil rights of citizens of the United States, or of all
persons within the jurisdiction thereof.” 28 U.S.C. § 1443(1).
To the extent the civil rights exception applies here,
based on Jones’ allegations under Title VII, we affirm the order
based on the reasoning of the district court. Jones v. North
Carolina Dep’t of Transp., No. 3:15-cv-00170-GCM (W.D.N.C. Aug.
6 & Sept. 10, 2015). The remainder of the appeal must be
dismissed because this court lacks jurisdiction to review the
district court’s order. See 28 U.S.C. § 1447(d). We therefore
dismiss the appeal in part and affirm in part.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
Appeal: 15-2258 Doc: 42 Filed: 09/06/2016 Pg: 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_05-cv-03157/USCOURTS-cand-4_05-cv-03157-0/pdf.json | [
[
"Provident Life and Accident Insurance Company",
"Defendant"
],
[
"The Commissioner of the California Department of Insurance",
"Defendant"
],
[
"Jeffrey Tomback",
"Plaintiff"
],
[
"UnumProvident 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
JEFFREY TOMBACK,
PLAINTIFF,
v.
UNUMPROVIDENT CORPORATION; PROVIDENT
LIFE AND ACCIDENT INSURANCE COMPANY;
THE COMMISSIONER OF THE CALIFORNIA
DEPARTMENT OF INSURANCE and DOES 1
through 50, inclusive,
Defendants.
/
No. C 05-3157 CW
ORDER GRANTING
PLAINTIFF'S
MOTION FOR REMAND
Defendants Provident Life and Accident Insurance Company
(Provident) and UnumProvident Corporation (Unum) (collectively,
Removing Defendants) removed this disability insurance action to
federal court. Plaintiff moves for remand to State court, pointing
to the absence of complete diversity created by the Commissioner of
the California Department of Insurance as a named defendant.
Removing Defendants oppose this motion, arguing that: 1) diversity
cannot be destroyed by the Commissioner sued in his official
capacity; 2) Plaintiff's claims against the Commissioner were made
in bad faith; and 3) all claims against the Commissioner are either
time-barred or fail to state a cause of action. The matter has
United States District Court
For the Northern District of California
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been submitted on the papers. Having considered all of the papers
filed by the parties, the Court GRANTS Plaintiff's motion to
remand.
BACKGROUND
On January 18 1986, Defendant Provident issued a disability
insurance policy to Plaintiff. Provident is now a wholly owned
subsidiary of Unum, a corporation organized and existing under the
laws of Delaware, with its principal places of business in
Chattanooga, Tennessee and Portland, Maine. In letter dated
February 6, 2004, Unum ultimately rejected a disability benefits
claim made by Plaintiff. On June 23, 2005, Plaintiff filed suit in
San Francisco County Superior Court, alleging State law causes of
action against Removing Defendants for wrongfully denying him
benefits under the disability policy. Plaintiff also brought suit
against the Commissioner in his official capacity, requesting a
writ of mandamus ordering the Commissioner to revoke his approval
of the disability policy. On August 4, 2005, Removing Defendants,
claiming diversity jurisdiction, removed the complaint to federal
court pursuant to 28 U.S.C. § 1441(a). Plaintiff seeks remand.
LEGAL STANDARD
A defendant may remove a civil action filed in State court to
federal district court so long as the district court could have
exercised original jurisdiction over the matter. 28 U.S.C.
§ 1441(a). Title 28 U.S.C. § 1447(c) provides that, if at any time
before judgment it appears that the district court lacks subject
matter jurisdiction over a case previously removed from State
court, the case must be remanded. On a motion to remand, the scope
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of the removal statute must be strictly construed. Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992). "The 'strong presumption'
against removal jurisdiction means that the defendant always has
the burden of establishing that removal is proper." Id. Courts
should resolve doubts as to removability in favor of remanding the
case to State court. Id.
District courts have original jurisdiction over all civil
actions "where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between . . .
citizens of different States." 28 U.S.C. § 1332(a). When federal
subject matter jurisdiction is predicated on diversity of
citizenship, complete diversity must exist between the opposing
parties. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-
74 (1978).
A defendant may remove a case with a non-diverse defendant on
the basis of diversity jurisdiction and seek to persuade the
district court that this defendant was fraudulently joined. McCabe
v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). "If the
plaintiff fails to state a cause of action against a resident
defendant, and the failure is obvious according to the settled
rules of the state, the joinder of the resident defendant is
fraudulent." Id. The burden of the defendant is not to show that
the joinder of the non-diverse party was for the purpose of
preventing removal because "it is universally thought that the
motive for joining such a defendant is immaterial." Albi v. Street
& Smith Publ'ns, 140 F.2d 310, 312 (9th Cir. 1944). Instead, the
defendant must demonstrate that there is no possibility that the
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plaintiff will be able to establish a cause of action in State
court against the alleged sham defendant. Id.; see also Ritchey v.
Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). Allegations
of the presence of a sham defendant can only succeed upon a showing
that there is an obvious failure to assert a cause of action
against that defendant under well-settled rules of State law.
United Computer Sys., Inc. v. AT & T Corp., 298 F.3d 756, 761 (9th
Cir. 2002); Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067
(9th Cir. 2001); see also Dodson v. Spiliada Maritime Corp., 951
F.2d 42, 43 (5th Cir. 1992) ("In evaluating fraudulent joinder
claims, we must initially resolve . . . all ambiguities in the
controlling state law in favor of the non-removing party.")
DISCUSSION
I. The Commissioner as a Named Defendant Precludes Diversity
Jurisdiction
Removing Defendants argue that, because they are not citizens
of California and because the Commissioner has no citizenship for
diversity purposes, diversity jurisdiction is proper in this case.
This argument is based on two premises. First, Removing Defendants
correctly point out that the Commissioner, in his official
capacity, is not a "citizen of California." See Morongo Band of
Mission Indians v. California State Bd. of Equalization, 858 F.2d
1376, 1382 n.5 (9th Cir. 1998) (State officers have "no
citizenship" for purposes of 28 U.S.C. § 1332). Second, Removing
Defendants contend that the Commissioner, as a non-citizen, should
be ignored for the purposes of analyzing diversity jurisdiction.
This is incorrect.
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Removing Defendants concede that "a lawsuit against a state
officer acting in his official capacity is treated as a suit
against the state itself, for which there is no diversity
jurisdiction." Defs.' Opp. at 6; see also Schwarzer et al.,
Federal Civil Procedure Before Trial § 2:247. However, Removing
Defendants argue that, although an official-capacity defendant's
citizenship (or more precisely, lack thereof) "cannot be asserted
as a basis for establishing diversity" by plaintiffs, the same lack
of citizenship should not be allowed "to destroy diversity" when
defendants seek to remove to federal court. Defs.' Opp. at 6
(emphasis in original).
Removing Defendants' distinction has no basis in the text of
the removal statute or any precedent in this or any other circuit.
Although infrequently raised, Removing Defendants' novel argument
has been rejected by other courts. Jakoubek v. Fortis Benefits
Ins. Co., 301 F. Supp. 2d 1045, 1049 (D. Neb. 2003); Batton v.
Georgia Gulf, 261 F. Supp. 2d 575, 583 (M.D. La. 2003); see also
California v. Steelcase Inc.,792 F. Supp 84, 86 (C.D. Cal 1992)
("[F]or diversity purposes, a state is not a citizen of itself.
Therefore, it cannot sue or be sued in a diversity action.").
In Batton, the court rejected an argument identical to that
raised by Removing Defendants after examining the diversity statute
and concluding, "Nowhere is there any provision allowing diversity
jurisdiction where a non-citizen state is a party. Clearly,
Congress contemplated the situation of non-citizens and
specifically allowed for suits by those non-citizens it thought
appropriate." 261 F. Supp. 2d at 582. The court in Jakoubek
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similarly found the plain language of the statute dispositive,
stating that "28 U.S.C. § 1332(a)(1) grants federal diversity
jurisdiction only when plaintiffs and defendants are citizens of
different states. Since the State defendants are not citizens,
they and the plaintiff cannot be citizens of different states."
301 F. Supp. 2d at 1049. The Court agrees with the reasoning of
the Batton and Jakoubek courts and concludes that diversity
jurisdiction does not exist here because the Commissioner, a noncitizen, is a defendant.
Removing Defendants mistakenly point to Garamendi v. Allstate,
47 F.3d 350 (9th Cir. 1995) and American Re-Insurance Company v.
Insurance Commissioner of the State of California, 527 F. Supp. 444
(C.D. Cal 1981), in an attempt to contradict the principle that
diversity jurisdiction is normally improper for official capacity
suits. These cases are distinguishable, however, because, as
indicated in the captions of each case, the Commissioner was sued
in his capacity as liquidator of the respective insurance
companies. See Allstate, 47 F.3d at 350 ("GARAMENDI, Insurance
Commissioner of the State of California, in his capacity as
Liquidator of Mission Insurance Company"); Am. Re-Insurance Co.,
527 F. Supp. at 444 ("The INSURANCE COMMISSION OF the STATE OF
CALIFORNIA, as liquidator of Signal Insurance Company and of
Imperial Insurance Company").
The existence of diversity of citizenship jurisdiction is
based on an examination of the citizenship of the real parties in
interest. Navarro Sav. Ass'n v. Lee, 446 U.S. 458, 460-61 (1980).
Because the real party in interest in suits involving a State
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official as liquidator is the company itself, such suits may
proceed under diversity jurisdiction. General Ry. Signal Co. v.
Corcoran, 921 F.2d 700, 705 n.3 (7th Cir. 1991). Thus, although
the basis of diversity jurisdiction went unaddressed in Garamendi
and American Re-Insurance Company because diversity was
unchallenged, it seems likely that these courts simply applied the
settled rule that "[t]he addition to a lawsuit of a purely nominal
party--the holder of the stakes of the dispute between the
plaintiff and the original defendant--does not affect diversity
jurisdiction.” Prudential Real Estate Affiliates, Inc. v. PPR
Realty, Inc., 204 F.3d 867, 873 (9th Cir. 2000) (quoting Matchett
v. Wold, 818 F.2d 574, 576 (7th Cir. 1987).
Removing Defendants argue that the fact that the Commissioner
was acting as a liquidator in Garamendi and American Re-Insurance
provides no basis for reasoned distinction. Citing Garris v.
Carpenter, 33 Cal. App. 2d 649, 656 (1939), Removing Defendants
argue that the Commissioner as liquidator acts in his official
capacity "in behalf of the state." See also Cal. Ins. Code § 1059
(in performance of any of his statutory duties the Commissioner
"shall be deemed to be a public officer acting in his official
capacity on behalf of the State"). However, the fact that the
Commissioner as liquidator acts in his official capacity on behalf
of the State does not settle whether he is a nominal party for
purposes of diversity. See General Ry. Signal Co., 921 F.2d at 705
n.3 (official as liquidator nominal party to diversity suit).
The Garris case cited by Removing Defendants supports the
proposition that the Commissioner as liquidator may be a nominal
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party because he acts merely as "holder of the stakes of the
dispute." Prudential Real Estate Affiliates, Inc., 204 F.3d at
873; see Garris, 33 Cal. App. 2d at 655 (in his role as liquidator,
the Commissioner's function "is that of a minister of the court in
possession of the property, to the end of conserving the rights of
everybody having any interest.") Removing Defendants do not argue,
nor could they, that the Commissioner is a nominal party in this
case. Therefore, because there is no evidence that the courts in
Garamendi and American Re-Insurance Company developed a new
exception to settled diversity jurisdiction jurisprudence, the
Court declines to interpret these cases to allow diversity
jurisdiction in this case.
II. Fraudulent Joinder
Despite the absence of complete diversity, Removing Defendants
may proceed on the basis of diversity jurisdiction if they can
demonstrate that the Commissioner was fraudulently joined. McCabe,
811 F.2d at 1339.
A. Bad Faith
Removing Defendants contend that Plaintiff's counsel routinely
joins the Commissioner in insurance cases in order to avoid federal
court, without ever pursuing legal redress or even initiating
discovery in the claims against him. Removing Defendants support
this contention by citing other cases in which Plaintiff's counsel,
Plaintiff's counsel's firm and one other unidentified plaintiffs'
firm filed suits against Removing Defendants (or other non-resident
insurance companies) and the Commissioner or other State officials.
They state that counsel never pursued claims alleged against the
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Commissioner or State officials in these cases. Hockel Decl. at 2-
6. Removing Defendants also claim that Plaintiff's counsel's
dismissal of an unrelated insurance case before another judge of
this Court, who had previously ruled against Plaintiff's counsel on
a similar remand issue, evidences forum-shopping. Id., Exs. C, D,
F. In light of this evidence, Removing Defendants argue that the
joinder of the Commissioner was in bad faith and therefore
fraudulent. However, as noted above, this circuit has foreclosed
analysis of a plaintiff's intentions in cases of alleged fraudulent
joinder:
It is universally thought that the motive for
joining . . . a defendant is immaterial. It is only
where the plaintiff has not, in fact, a cause of action
against the . . . defendant, and has no reasonable ground
for supposing he has, and yet joins him in order to evade
the jurisdiction of the federal court, that the joinder
can be said to be fraudulent, entitling the real
defendant to a removal.
Albi, 140 F.2d at 312.
In other words, "the phrase 'fraudulent joinder' is something
of a misnomer. It is a term of art; it . . . is merely the rubric
applied when a court finds either that no cause of action is stated
against the nondiverse Defendant, or in fact no cause of action
exists." Grennell v. Western Southern Life Ins. Co., 298 F. Supp.
2d 390, 394 n.5 (S.D. W. Va. 2004); see also McCabe, 811 F.2d at
1139 ("Fraudulent joinder is a term of art. If the plaintiff fails
to state a cause of action against a resident defendant, and the
failure is obvious according to the settled rules of the state, the
joinder of the resident defendant is fraudulent.")
Removing Defendants' reliance on the statement in Rock Island
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1
To the extent that Lewis v. Time, Inc. reads the "and" in
Wilson as an "or" it is not persuasive. 83 F.R.D. 455, 465 (C.D.
Cal. 1979) (stating "a joinder is also fraudulent although a cause
of action is stated if in fact no cause of action exists, or there
is no intention to secure a joint judgment" and finding that the
tenuous nature of plaintiff's claim along with evidence of last10
& Pacific Railway Company v. Schwyart, suggesting that the Court
will examine whether a plaintiff has a "real intention to get a . .
. judgment," is unavailing. 227 U.S. 184, 194 (1913). The
analysis in that case addressed whether or not the plaintiff had a
viable claim and the Court made clear that "the motive of the
plaintiff, taken by itself, does not affect the right to remove."
Id. at 193. In Wilson v. Republican Iron & Steel Company, also
cited by Removing Defendants, the Court found fraudulent joinder
based upon undisputed allegations that the plaintiff "knew all
along, [that the non-diverse defendant] was not guilty of any joint
negligence with the [diverse defendant], was not present when the
plaintiff's injuries were received, and did no act or deed which
caused or contributed to such injuries." 257 U.S. 92, 94, 98
(1921). The Court noted that the defendants could establish
fraudulent joinder by showing that claims against the non-diverse
defendant were "without any reasonable basis in fact and without
any purpose to prosecute the cause in good faith." 257 U.S. 92, 98
(1921).
Because the Wilson Court required both an absence of any
reasonable basis for the suit and no intention to prosecute, it is
not in conflict with the statement in Rock Island that "the motive
of the plaintiff, taken by itself, does not affect the right to
remove." 227 U.S. at 193.1
Removing Defendants have not
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minute joinder of a California corporation solely for the purpose
of defeating diversity established fraudulent joinder). The
correct standard is delineated elsewhere in that case. See id. at
460 ("'Fraudulent joinder' is a term of art, it does not reflect on
the integrity of plaintiff or counsel but is merely the rubric
applied when a court finds either that no cause of action is stated
against the nondiverse defendant, or in fact no cause of action
exists. In other words, a joinder is fraudulent if there is no
real intention to get a joint judgment, and there is no colorable
ground for so claiming.") (citations and alterations omitted). The
Third Circuit precedent relied upon by Removing Defendants, Batoff
v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992), traces
back to similar misinterpretation of Wilson by a California
district court. See Abels v. State Farm Fire & Cas. Co., 770 F.2d
26 (3d Cir. 1985) (citing Goldberg v. CPC International, Inc., 495
F. Supp. 233 239 (N.D. Cal. 1980)). However, the Goldberg court
provides no support for Removing Defendants' theory. See id. at
239 ("It is immaterial that plaintiff may have been motivated by a
purpose to defeat removal.")
11
established that Plaintiff's claim against the Commissioner has no
reasonable basis in fact, and have not satisfied the Wilson test.
Therefore, the Court concludes that evidence of Plaintiff's
counsel's alleged lack of intention to pursue relief against the
Commissioner does not establish fraudulent joinder.
B. Failure to State a Claim
Removing Defendants contend that Plaintiff has failed to state
a claim for a writ of mandamus against the Commissioner. Removing
Defendants argue that, because the Commissioner's decision to
approve the insurance policy occurred in approximately January,
1986, the month Plaintiff's insurance policy issued, and
Plaintiff's complaint was not filed until June 23, 2005,
Plaintiff's request for a writ of mandamus against the Commissioner
is barred by the statute of limitations. The Court must therefore
address the manner in which the Commissioner's decisions are
reviewed under California law.
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1. Judicial Review of Commissioner's Decisions
The issuance of a disability policy in California requires
approval from the Commissioner. Van Ness v. Blue Cross of
California, 87 Cal. App. 4th 364, 368 (2001); see also Cal. Ins.
Code § 10290. The Commissioner may give explicit endorsement to a
policy by "written approval" or implicit consent by failing to act
within thirty days of receipt of the copy of the policy that must
be sent to the Commissioner by the insurer. Id. The Commissioner
may also, with good cause, revoke approval for any policy that does
not comply with the California Insurance Code. 10 Cal. Code Regs.
§ 2196.4(a). The Commissioner's actions are subject to judicial
review pursuant to California Insurance Code § 12940. Review of
the Commissioner's decision to approve an insurance policy is
governed by the California Code of Civil Procedure. Cal. Ins. Code
§ 10295.1(h).
The California Code of Civil Procedure allows a writ of
mandamus to be issued "by any court to any . . . person, to compel
the performance of an act which the law specifically enjoins, as a
duty resulting from an office, trust or station.” Cal. Code Civ.
Proc. § 1085(a). The Commissioner is thus subject to the writ due
to the requirement that he “perform all duties imposed on him or
her by the [Insurance Code] and other laws regulating the business
of insurance" and "enforce the execution of those provisions and
laws.” Cal. Ins. Code § 12921(a).
In his complaint, Plaintiff seeks an order mandating that the
Commissioner perform the duties imposed upon him by law to correct
the disability policy so that it conforms with California State law
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and to revoke his original approval of the disability policy.
Compl. at 24, 25. Ninth Circuit and California case law suggests
that such a writ is proper and Removing Defendants do not contest
the use of the writ in this case. See Peterson v. American Life &
Health Ins. Co., 48 F.3d 404, 410 (9th Cir. 1995) (plaintiff "may
petition for a writ of mandamus requiring the Commissioner to
revoke his approval"); Van Ness, 87 Cal. App. 4th at 371-72
(insured may petition for a writ of mandamus requiring the
commission to revoke approval).
2. Statute of Limitations
To determine the applicable statute of limitations for a writ
of mandamus, the Court must turn to California State law.
California Insurance Code § 10291.5(h) states that:
any action taken by the commissioner under this section
is subject to review by the courts of this state and
proceedings on review shall be in accordance with the
Code of Civil Procedure. Notwithstanding any other
provision of law to the contrary, petition for any such
review may be filed at any time before the effective date
of the action taken by the commissioner.
Removing Defendants argue that, because section 10291.5(h)
does not supply its own statute of limitations, the applicable
statute of limitations is the three-year limitation provided by
California Code of Civil Procedure § 338(a) for "an action upon a
liability created by statute." Plaintiff presents no alternative
statute of limitations. However, Plaintiff disputes Removing
Defendants' contention that it is the Commissioner's approval of
the policy which triggers the running of the statutory clock.
No California decisions directly address this issue. However,
at least five judges in this District have addressed the statute of
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limitations for this precise application of the writ of mandamus.
Only one district court found that the statute of limitations began
to run on the date of the Commissioner's approval of a policy. See
Borsuk v. Massachusetts Mut. Life Ins. Co., No. C-03-630 VRW (Def.
Ex. F). The remaining four courts were unwilling to hold
categorically that the statutory clock began to run on the date of
the Commissioner's approval because a plaintiff may not have
sufficient notice of his or her injury until the insurance company
rejects the claim. See Brazina v. Paul Revere Life Ins. Co., 271
F. Supp. 2d 1163 (N.D. Cal. 2003); Sullivan v. Unum Life Ins. Co.
of Amer., 2004 WL 828561 (N.D. Cal. 2004); Glick v. UnumProvident
Corp., No. C 03-4025 WHA (N.D. Cal. 2004); Maiolino v.
UnumProvident Corp., 2004 WL 941235 (N.D. Cal. 2004).
In finding that the statute of limitations had expired, the
Borsuk court summarily concluded that "Borsuk was on notice . . .
no later than . . . the date he agreed to the terms of the policy"
and that the statute began to run either on the date of that
agreement or on the date the Commissioner approved the policy.
Borsuk at 18. Because the Borsuk court did not provide the basis
for its decision on this matter, the Court finds that decision
unpersuasive.
In Brazina, the court did not address the triggering of the
statute of limitations directly, but did reject the defendants'
argument that the writ of mandamus was unavailable at any time
after the effective date of the Commissioner's decision. 271 F.
Supp. 2d at 1170 (citing Econ. Empowerment Found. v. Quackenbush,
65 Cal. App. 4th 1397, 1402 (1998)). Despite the fact that the
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plaintiff filed suit fourteen years after the issuance of the
policy, the Brazina court stated that "it seems likely that a
California court would interpret the language [of section
10291.5(h)] to allow this action to proceed." Id. at 1171.
Sullivan, Maiolino, and Glick directly addressed the statute
of limitations and, finding the issue of when the statute begins to
run to be uncertain, construed the ambiguity in favor of granting
remand because a cause of action had been stated. In Sullivan, the
court concluded, "It seems unfair to hold categorically that
Plaintiff had notice of the way defendants would administer the
policy before Unum denied him benefits" and therefore decided that
a claim had been stated and remand was appropriate because the
complaint had been filed within three years of the denial of
benefits. 2004 WL 828561 at *4. Maiolino and Glick adopted
similar reasoning. Maiolino 2004 WL 941235 at *5 (granting remand
in the absence of well-settled rules of State law on the statute of
limitations issue); Glick, at 3-4 (noting that although defendants'
contention that the statute of limitations had expired might
ultimately prevail in State court, defendants had not met their
high burden of establishing the absence of a viable claim against
the Commissioner.)
The reasoning of these cases is blostered by California State
law, which states that a cause of action accrues "upon the
occurrence of the last element essential to the cause of action,"
Howard Jarvis Taxpayers Ass'n v. City of La Habra, 25 Cal. 4th 809,
815 (2001), and that the event triggering the statute of
limitations may be modified "where it would be manifestly unjust to
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2 Because the Court finds in Plaintiff's favor on this issue,
the Court declines to address Plaintiff's argument that Removing
Defendants' notice of removal is procedurally defective due to
their failure to secure the consent of the Commissioner.
16
deprive a plaintiff of a cause of action before he is aware he has
been injured." Mangini v. Aerojet-General Corp., 230 Cal. App. 3d
1125, 1150 (1991). As noted by the Sullivan court, it is doubtful
that insurance policy holders would be aware of the harm posed by
the Commissioner's approval of ambiguous terms in their policies
before they "had notice of the way [insurers] would administer the
policy" to deny them benefits. Sullivan, 2004 WL 828561 at *4.
Furthermore, it is unreasonable to assume that policy holders would
be "put on notice" of the injury caused by the Commissioner's
approval of an illegal policy simply by his inaction (i.e. his
failure to act to disapprove of the policy within thirty days).
See Cal. Ins. Code § 10290(b).
These observations are not to suggest that Plaintiff will
necessarily succeed in persuading a State court to follow his
suggested application of the statute of limitations. However,
because of the unsettled nature of State law, the Court must
construe ambiguities in favor of remand. See Dodson, 951 F.2d at
43. Therefore, the Court cannot find that on the face of the
pleading Plaintiff's claim for a writ of mandate is barred by the
statute of limitations.2
Because Plaintiff has asserted a viable claim against the
Commissioner under State law, and because the Commissioner's
presence in this suit destroys the diversity of citizenship
required for removal, the Court has no jurisdiction over this case.
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CONCLUSION
Based on the foregoing, Plaintiff's motion for remand is
GRANTED.
IT IS SO ORDERED.
Dated: 10/13/05
CLAUDIA WILKEN
United States District Judge |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-02668/USCOURTS-cand-3_09-cv-02668-0/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Daniel Rodriguez",
"Plaintiff"
]
] | 1
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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
DANIEL RODRIGUEZ,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security
Defendant
/
No. C 09-2668 MMC
ORDER DIRECTING DEFENDANT TO
SERVE UPON PLAINTIFF
ADMINISTRATIVE RECORD AND TO
FILE PROOF OF SERVICE THEREOF;
SETTING DEADLINE FOR PLAINTIFF
TO FILE MOTION FOR SUMMARY
JUDGMENT
In this action, plaintiff Daniel Rodriguez, proceeding pro se, seeks judicial review of a
decision of the Social Security Administration, specifically, a decision of an administrative
law judge dated February 23, 2007.
On December 16, 2009, defendant filed three documents: (1) an answer to plaintiff’s
complaint; (2) a two-page “Notice of Filing Social Security Administrative Transcript”; and
(3) a certified copy of the administrative transcript, which transcript is 75 pages in length.
On December 17, 2009, defendant filed a proof of service in which defendant stated
that he had served plaintiff with the “Answer, and Manual Filing Notification of Administrative
Transcript,” which documents appear to be references to the first two of the abovedescribed three documents filed by defendant on December 16, 2009. The proof of service
does not indicate that defendant served the administrative transcript upon plaintiff.
Case 3:09-cv-02668-MMC Document 18 Filed 01/28/10 Page 1 of 2
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Accordingly, defendant is hereby DIRECTED to serve plaintiff, no later than February
5, 2010, with a copy of the administrative record, and to file, no later than February 5, 2010,
proof of such service.
Further, plaintiff is hereby DIRECTED to file, no later than March 12, 2010, a motion
for summary judgment. In such motion, plaintiff shall set forth all arguments in support of
his position that the administrative law judge’s decision of February 23, 2007 is erroneous.
The Court hereby informs plaintiff that a failure to file a motion for summary judgment may
result in dismissal of the above-titled action for failure to prosecute.
The deadline for defendant to file an opposition to plaintiff’s motion for summary
judgment or a counter-motion, as well as the deadline for plaintiff to file a reply thereto,
remain as set forth in the Procedural Order for Social Security Review Actions, filed June
16, 2009. Specifically, defendant shall file opposition or a counter-motion within 30 days of
the date of service of plaintiff’s motion for summary judgment, and plaintiff shall file any reply
within 14 days of the date of service of defendant’s opposition or counter-motion.
IT IS SO ORDERED.
Dated: January 28, 2010
MAXINE M. CHESNEY
United States District Judge
Case 3:09-cv-02668-MMC Document 18 Filed 01/28/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_04-cv-05363/USCOURTS-caed-1_04-cv-05363-1/pdf.json | [
[
"Bernard Gordon",
"Petitioner"
],
[
"C. K. Pliler",
"Respondent"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
BERNARD GORDON, )
)
Petitioner, )
)
v. )
)
C. K. PLILER, Warden, )
)
Respondent. )
____________________________________)
1:04-CV-05363-REC-WMW-HC
ORDER GRANTING SEVENTH
EXTENSION OF TIME TO FILE
TRAVERSE AND RESPOND TO
NOTICE OF LODGING
(Document #32)
Petitioner is a state prisoner proceeding pro se in a habeas corpus action pursuant to 28 U.S.C.
§ 2254. On July 7, 2005, petitioner filed a motion for a seventh extension of time to file a traverse and
respond to the Notice of Lodging filed September 1, 2004. Good cause having been presented to the
court and GOOD CAUSE APPEARING THEREFOR, IT IS HEREBY ORDERED that petitioner is
granted thirty days from the date of service of this order in which to file a traverse and respond to the
Notice of Lodging filed September 1, 2004.
IT IS SO ORDERED.
Dated: August 17, 2005 /s/ William M. Wunderlich
bl0dc4 UNITED STATES MAGISTRATE JUDGE
Case 1:04-cv-05363-LJO -DLB Document 35 Filed 08/18/05 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_14-mc-00047/USCOURTS-caed-2_14-mc-00047-5/pdf.json | [
[
"Michael Frungillo",
"Plaintiff"
],
[
"Imperia Entertainment",
"Defendant"
],
[
"Viratech Corp",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MICHAEL FRUNGILLO,
Plaintiff,
v.
IMPERIA ENTERTAINMENT, et al.,
Defendant.
No. 2:14-mc-0047 KJM CKD
ORDER
This matter is currently scheduled for a judgment debtor exam on November 16, 2016.
The currently scheduled exam is the third judgment debtor exam plaintiff has attempted in this
District. At the first examination, plaintiff’s counsel indicated that the Quail Lakes Drive address
listed on the defendant’s website appears to be just a mail drop and that no business is conducted
there. The proof of service for the current examination indicates that the registered agent for
service of process was served at a Nevada address. Under California Code of Civil Procedure
section 708.110, the judgment debtor must be personally served. Plaintiff’s service by Federal
Express of the order for examination is therefore insufficient.
The court takes judicial notice of the records of the Secretaries of State for California and
Nevada. There is no Viratech Corp. registered to do business in California. Viratech Corp. is a
Nevada corporation with all of its officers listed with a Nevada address. Reviewing the record,
/////
Case 2:14-mc-00047-KJM-CKD Document 35 Filed 10/26/16 Page 1 of 2
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there appears to be no impediment to conducting a judgment debtor examination in Nevada and
that a judgment debtor examination in this District is improvident.
Accordingly, IT IS HEREBY ORDERED that the judgment debtor examination, set for
November 16, 2016, is vacated.
Dated: October 26, 2016
4 frungillo47.jde
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
Case 2:14-mc-00047-KJM-CKD Document 35 Filed 10/26/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_13-cv-00166/USCOURTS-caed-1_13-cv-00166-9/pdf.json | [
[
"Concentra Health Services, Inc.",
"Defendant"
],
[
"Mary Reid",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MARY REID, an individual, residing in
California,
Plaintiff,
vs.
CONCENTRA HEALTH SERVICES,
INC., a corporation; and DOES 1 through
100, inclusive,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 1:13-cv-00166-AWI-SKO
ORDER CONTINUING SETTLEMENT
CONFERENCE TO JANUARY 15, 2015,
AT 11:00 A.M.
(Doc. 52)
Defendant filed a motion to continue the settlement conference to a date after the district
court has had an opportunity to rule upon its motion for summary judgment.
In light the status conference with the parties on October 7, 2014, where the potential for
settlement following a ruling on the summary judgment motion was discussed, the settlement
conference is hereby CONTINUED to January 8, 2015, at 11:00 a.m. in Courtroom 7. The
parties shall submit via email updated confidential settlement conference statements by no later
than December 29, 2014.
IT IS SO ORDERED.
Dated: November 19, 2014 /s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
Case 1:13-cv-00166-DAD-SKO Document 54 Filed 11/19/14 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-03-30907/USCOURTS-ca5-03-30907-0/pdf.json | [
[
"Daniel C. Jenkins",
"Appellant"
],
[
"Liberty Life Assurance Company of Boston",
"Appellee"
]
] | * 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 7, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30907
Summary Calendar
DANIEL C. JENKINS,
Plaintiff-Appellant,
versus
CLECO CORP.; ET AL,
Defendants,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-1407
--------------------
Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
This court must examine the basis of its jurisdiction on
its own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). In the instant lawsuit, Daniel C. Jenkins filed
a notice of appeal from the district court’s order granting
summary judgment in favor of Liberty Life Assurance Company of
Boston (“Liberty Life”), dismissing Jenkins’ claims against
Case: 03-30907 Document: 005155976 Page: 1 Date Filed: 04/07/2004
No. 03-30907
-2-
Liberty Life regarding its denial of long-term disability
benefits with prejudice. Jenkins’ claims of disability
discrimination against CLECO Corporation remain to be
adjudicated.
When an action involves multiple parties or multiple claims,
any decision that adjudicates the liability of fewer than all
the parties or disposes of fewer than all the claims does not
terminate the litigation and is therefore not appealable unless
certified by the district court under FED. R. CIV. P. 54(b).
See Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir. 1985);
Borne v. A & P Boat Rentals No. 4, Inc., 755 F.2d 1131, 1133
(5th Cir. 1985). The district court has not certified the order
for appeal. Accordingly, this court is without jurisdiction.
APPEAL DISMISSED.
Case: 03-30907 Document: 005155976 Page: 2 Date Filed: 04/07/2004 |
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