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Since Greene, this court has rejected similar charges of misconduct where the government supplied counterfeit credit cards to detect which merchants would accept them. See Citro, 842 F.2d at 1153. In a case where an FBI agent bribed a state senator, we found no misconduct. See United States v. Carpenter, 961 F.2d 824, 829 (9th Cir.1992). Most recently, we declined to dismiss an indictment where the government established fake bank accounts and wired money to Mexican banks suspected of money laundering. See United States v. Gurolla, 333 F.3d 944, 948-49 (9th Cir.2003). We noted that the outrageous misconduct claim is limited to “extreme cases,” id. at 950, for example those characterized by “dominant fomentation” or “aggressive solicitation” of criminal activity. REDACTED Here, the FBI did not actually create a criminal enterprise. It constructed a fake travel agency Web site, and Agent Hamer lied about the arrangements he had made for the group. Like the agent who bribed the legislator in Carpenter, Agent Hamer engaged in fictional criminal conduct and lied about being able to facilitate access for Mayer. See also United States v. Williams, 791 F.2d 1383, 1386 (9th Cir. 1986) (refusing to dismiss indictment where prison authorities may have encouraged but did not actually aid jailbreak attempt). Moreover, the agent did not pay for Mayer’s trip, coerce him into buying a ticket, or plant the idea of traveling for illicit sexual conduct in Mayer’s mind. While Mayer points out there
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"clear predisposition, his conviction was reversed: This egregious conduct on the part of government agents generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully and peacefully minding his own • affairs. Fundamental fairness does not permit us to countenance such actions by law enforcement officials and prosecution for a crime so fomented by them will be barred. Id. at 381 (footnote deleted). Based on Twigg, the Eastern District of Pennsylvania recently acquitted two subjects of the “Abscam” undercover operation. United States v. Jannotti, 501 F.Supp. 1182 (E.D.Pa.1980) (appeal pending). The court found as a matter of law that the defendants had no predisposition to commit the offenses, and had been entrapped by the government. Id. at 1200. The court further found that the governmental involvement violated due process even if defendants were predisposed to commit the crimes. Id. at 1204-05. Government agents had posed as representatives of an Arab sheik who desired to build a hotel complex in Philadelphia. The defendants, members of the City Council, agreed to assist the project because it would benefit the city. Government agents offered bribes as an additional inducement. Defendants had not requested money, and had made it clear none was necessary. The agents insisted the sheik would be unwilling to proceed with the project unless the payments were accepted. Defendants accepted the money, but did not agree to do anything inconsistent with their obligation to promote the interests of the city. 501 F.Supp. at 1200. The government’s conduct in the present case does not rise to the level of outra-geousness reflected in Twigg and Jannotti. Treating the evidence in the light most favorable to the government, as we must, we find the government’s involvement reflected neither the dominant fomentation of Twigg nor the aggressive solicitation of Jannotti. If the conduct of the government was in some respects overzealous, it was clearly not “so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Ryan, 548 F.2d at 789. The convictions"
] |
[
"scheme, id. at 900. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), one of the largest undercover operations in history, the defendants were already part of a massive money laundering scheme in which Mexican banks laundered money to various drug cartels, id. at 948. In United States v. Williams, 547 F.3d 1187 (9th Cir.2008), the defendant was already wanted for a prior bank robbery; had engaged in several drug deals with a government informant; and had planned his second bank robbery in detail and on his own accord, going so far as to identify a target bank and recruit someone on the inside of the bank to help. It was only after the defendant enlisted a government informant to be his getaway driver that the ATF pitched the fictitious drug stash house as a safer alternative to robbing a bank. Id. at 1192. In each of these cases, the government targeted an existing scheme or suspected an individual of wrongdoing before initiating a sting operation. An Alternative Approach The majority opinion scarcely offers an explanation for why it has declined to use the Bonanno test. The test is good law. Under the Bonanno test, the government’s conduct is not outrageous when: (1) the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in progress at the time the government agent became involved; (2) the agent’s participation was not necessary to enable the defendants to continue the criminal activity; (3) the agent used artifice and stratagem to ferret out criminal activity; (4) the agent infiltrated a criminal organization; and (5) the agent approached persons already contemplating or engaged in criminal activity. Williams, 547 F.3d at 1199-1200 (quoting Bonanno, 852 F.2d at 437-38 and evaluating whether the government’s conduct is outrageous by methodically considering each of the five factors). The origin of the test lay in United States v. Bogart, 783 F.2d 1428 (9th Cir.), vacated in part on reh’g sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986). Systematically evaluating a number of outrageous government conduct cases, Bogart",
"de novo. United States v. Citro, 842 F.2d 1149, 1152 (9th Cir.1988). For a due process dismissal, the Government’s conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice. United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983); Citro, 842 F.2d at 1152. The Government’s involvement must be malum in se or amount to the engineering and direction of the criminal enterprise from start to finish. Citro, 842 F.2d at 1153. The police conduct must be “repugnant to the American system of justice.” Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir.1986) (quoting United States v. Lomas, 706 F.2d 886, 891 (9th Cir.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984)). In short, a defendant must meet an extremely high standard. The courts have upheld all of the following: Use of false identities by undercover agents, Shaw, 796 F.2d at 1125, and United States v. Marcello, 731 F.2d 1354, 1357 (9th Cir.1984); the supply of contraband at issue in the offense, Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 1649-50, 48 L.Ed.2d 113 (1976); the commission of equally serious offenses by an undercover agent as part of the investigation, United States v. Stenberg, 803 F.2d 422, 430 (9th Cir.1986); the introduction of drugs into a prison to identify a distribution network, United States v. Wiley, 794 F.2d 514, 515 (9th Cir.1986); the assistance and encouragement of escape attempts, United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986); use of a heroin-using prostitute informant whose own activities were under investigation and who engaged in regular intercourse with the defendant, United States v. Simpson, 813 F.2d 1462, 1465-71 (9th Cir.1987). Although drug agents’ encouraging 18-year-old patients in drug-treatment centers to deal drugs is not the most constructive enforcement method, it does not rise to the level of outrageous conduct necessary to constitute a due process violation. Here, Popp showed a tendency for dealing drugs independent of any action on the part of the DEA:",
"(9th Cir.1985). Law enforcement conduct becomes constitutionally unacceptable when “the police completely fabricate the crime solely to secure the defendant’s conviction.” United States v. Emmert, 829 F.2d 805, 811 (9th Cir.1987). The facts of the present case do not support a claim of outrageous government conduct. At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals. Valentino’s acts of supplying Winslow with beer and food, and paying for the trip to Seattle and the bomb components, did not constitute outrageous government conduct. See United States v. Citro, 842 F.2d 1149, 1152-53 (9th Cir.) (undercover agent’s conduct in proposing and explaining details of credit card scheme to defendant and in supplying him with counterfeit credit cards did not constitute a due process violation), cert. denied, 488 U.S. 866, 109 S.Ct. 170, 102 L.Ed.2d 140 (1988). Valentino did not suggest or set up the plan from which the conspiracy evolved. See United States v. Smith, 802 F.2d 1119, 1126 (9th Cir.1986) (supplying opportunity for defendant to arrange drug sale was not outrageous government conduct because informant did not set up the source from which the defendant would purchase the drugs). While it is true that Valentino was paid $90,000 by the FBI as compensation for his undercover activity, “the government may employ undercover tactics to infiltrate criminal ranks and may rely on paid informants in order to locate and arrest criminals.” United States v. McQuin, 612 F.2d 1193, 1195-96 (9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980). Nor did the arrests of Nelson and Win-slow before the intended Seattle bomb was assembled, but after its components had been purchased, amount to outrageous government conduct. “Police are not required to delay arrest until innocent bystanders are imperiled.” United States v. Moore, 921 F.2d 207, 209 (9th Cir.1990). MOTION FOR MISTRIAL AND EVIDENTIARY OBJECTIONS A. Motion for Mistrial Nelson, Winslow and Baker argue that their convictions should be reversed on all counts because the district court erred in denying their motions for a",
"United States v. Bonanno, 852 F.2d 434, 437-38 (9th Cir.1988) (citing Bogart, 783 F.2d at 1435-38). These factors have not been used consistently, however, nor as a dispositive test. See, e.g., United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003) (not citing or employing the Bonanno factors and instead rejecting the defendants’ outrageous government conduct claim on the more general principle that “the government did not initiate the criminal activity, but rather sought to crack an ongoing operation”). Because we are to resolve every case on its own particular facts, we take account of the Bonanno factors in our analysis but only as part of our consideration of all the circumstances as a whole. . The dissent points out that in most of our decisions rejecting claims of outrageous government conduct the government targeted an existing scheme or suspected an individual of wrongdoing before initiating the sting operation. We agree with the dissent that the absence of those conditions here supports the defendants’ outrageous government conduct claim. In light of our precedent, however, we cannot say that this one factor alone establishes a due process violation. In at least two cases, we have rejected outrageous government conduct claims where, as here, the government initiated a sting operation without targeting an existing scheme or suspecting an individual of wrongdoing. In Bagnariol, the government approached persons involved with lawful gambling enterprises authorized under state law. See Bagnariol, 665 F.2d at 880-81. In United States v. Emmert, 829 F.2d 805 (9th Cir.1987), a confidential informant approached a college student about locating a substantial supply of cocaine for a buyer in the area. The government had no individualized suspicion of the college student as someone who was a drug user or dealer. Rather, the investigators approached him merely because they believed he attended a party at which cocaine was used and he in turn led them to his college roommate, Emmert. See id. at 807, 812. We found sufficient proof that Emmert was contemplating criminal activity simply by his agreement to engage in the criminal activity proposed by the government. See id. at",
"as one likely to know drug dealers); United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981) (targeting politicians, political operatives and persons in the gaming business in investigation of political corruption). Known criminal characteristics of defendants. Closely related to the question of individualized suspicion is whether a defendant had a criminal background or propensity the government knew about when it initiated its sting operation. See, e.g., Williams, 547 F.3d at 1200 (noting that before the government suggested a stash house robbery, the defendant was introduced to the government “as a middleman drug dealer”); United States v. Mayer, 503 F.3d 740, 754 (9th Cir.2007) (“While Mayer points out there was no ongoing criminal enterprise that the government was merely trying to join, Mayer was certainly a willing and experienced participant in similar activities [traveling internationally for sex with boys].” (citation omitted)). Government’s role in creating the crime. Also relevant is whether the government approached the defendant initially or the defendant approached a government agent, and whether the government proposed the criminal enterprise or merely attached itself to one that was already established and ongoing. See Williams, 547 F.3d at 1200 (noting that government merely persuaded the defendant to substitute a stash house robbery for the planned bank robbery he had initially proposed to the government agent); Mayer, 503 F.3d at 747 (noting that the defendant was the first to broach the subject of traveling internationally to have sex with boys); United States v. Winslow, 962 F.2d 845, 849 (9th Cir.1992) (“At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals.”); United States v. Wiley, 794 F.2d 514, 516 (9th Cir.1986) (“The drug distribution scheme between defendant and Garbiso was in existence before the government became involved; the government merely activated it.”). In the case before us, the government does not contend it had any individualized suspicion of any of the defendants as being involved in stash house robberies when it dispatched the Cl into the field to find persons willing to do such a robbery.",
"(1978) (government not required to show in entrapment case that it had reasonable grounds to believe defendant was engaged in unlawful activities). No issue of impermissible selective prosecution was raised in the instant case. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Ill We have also considered defendant’s conviction and the government agents’ conduct in light of our supervisory power over the administration of criminal justice. But the breadth of the Supreme Court’s language in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), requires us to conclude, despite the differences between Payner and the case at bar, that we may not fashion a “sub-constitutional” rule to permit dismissal of this case because of the government agents’ conduct. See United States v. Myers, 692 F.2d 823, 847 (2d Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 2437, 77 L.Ed.2d 1322 (1983). In Payner government agents sought to examine materials in a third party’s briefcase that they thought might incriminate defendant. To gain access to the briefcase a government agent introduced the owner of the briefcase, Michael Wolstencroft, to Sybol Kennedy, a female private investigator who worked for the agent. Wolstencroft and Kennedy spent time together in Kennedy’s apartment, where Wolstencroft left his locked briefcase while the two went out to eat at a restaurant. While one government agent acted as a “lookout” at the restaurant, other agents entered the apartment with a key furnished by Kennedy, took the briefcase to a locksmith who made a key for it, opened the briefcase and photographed documents in it that led to evidence used to convict Payner. Payner, of course, did not have standing to object to the search. The district court found that the United States “knowingly and willfully participated” in the illegal search. Nonetheless, the Supreme Court refused to affirm the use of the courts’ supervisory power to suppress the evidence. It agreed with a government argument that even though the evidence was tainted with gross illegalities, “such an extension of the supervisory power would enable federal courts to",
"indicated they were already involved in continuing illegal transactions involving wildlife.”), superseded by statute on other grounds as stated in United States v. Atkinson, 966 F.2d 1270, 1273 n. 4 (9th Cir.1992). In some cases where the government did not suspect a particular individual, it has focused on a category of persons it had reason to believe were involved in the type of illegal conduct being investigated. An example is Garzar-Juarez, 992 F.2d 896, involving an investigation of illegal firearm trafficking at swap meets. The government received a tip that a Hispanic male at a swap meet near Casa Grande, Arizona, had illegally sold an assault-type firearm. On that information alone, an undercover agent went to the Casa Grande swap meet looking for Hispanic males and came upon the defendant, who appeared to be selling firearms in numbers exceeding those of a professed “gun collector.” The government then lured him into a faked sale of illegal weapons. See id. at 899-900. See also Emmert, 829 F.2d at 812 (targeting student who attended a cocaine party as one likely to know drug dealers); United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981) (targeting politicians, political operatives and persons in the gaming business in investigation of political corruption). Known criminal characteristics of defendants. Closely related to the question of individualized suspicion is whether a defendant had a criminal background or propensity the government knew about when it initiated its sting operation. See, e.g., Williams, 547 F.3d at 1200 (noting that before the government suggested a stash house robbery, the defendant was introduced to the government “as a middleman drug dealer”); United States v. Mayer, 503 F.3d 740, 754 (9th Cir.2007) (“While Mayer points out there was no ongoing criminal enterprise that the government was merely trying to join, Mayer was certainly a willing and experienced participant in similar activities [traveling internationally for sex with boys].” (citation omitted)). Government’s role in creating the crime. Also relevant is whether the government approached the defendant initially or the defendant approached a government agent, and whether the government proposed the criminal enterprise or merely attached",
"some overt act or specific act in the statute before us, unlike the general conspiracy provision”). Section 286, like the RICO conspiracy provision, does not require an overt act. . That statutory provision directs that: \"Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.” 18 U.S.C. § 287. . The circuits, however, do not have unanimous agreement as to the appropriate standard. For instance, the Ninth Circuit sets quite a high standard and states that “[t]o be false, a claim must not only be inaccurate but consciously so.\" United States v. Barker, 967 F.2d 1275, 1278 (9th Cir.1991). In contrast, the Eighth Circuit has used the seemingly lesser standard of whether the defendant had the “intent to deceive.” United States v. Martin, 772 F.2d 1442, 1444 (8th Cir.1985). . Dedman, however, may have had grounds for claiming that the second count of the indictment was duplicitous. A duplicitous indictment is one that charges separate offenses in a single count. The overall vice of duplicity is that the jury cannot in a general verdict render its finding on each offense, making it difficult to determine whether a conviction rests on only one of the offenses or on both. Adverse effects on a defendant may include improper notice of the charges against him, prejudice in the shaping of evidentiary rulings, in sentencing, in limiting review on appeal, in exposure to double jeopardy, and of course the danger that a conviction will result from a less than unanimous verdict as to each separate offense. Duncan, 850 F.2d at 1108 n. 4. We held in 1993 that \" 'Congress, in enumerating several different types of fraudulent conduct in Section 1001, did not create separate and distinct offenses,' \" United States v.",
"substances, or prostitution, the Government must prove more than an isolated incident; it must prove a business enterprise. On the other hand, if the underlying offense involves extortion, bribery, or arson, then the business enterprise limitation does not apply- In this case, the underlying offense involved extortion. Thus, the Government was not required to prove a business enterprise. The defendants contend that this was error. They argue that the legislative history of the Travel Act demonstrates that the business enterprise limitation in subdivision (1) was intended to apply as well to subdivision (2). The defendants assert, and we agree, that a primary purpose of the Travel Act was to aid local law enforcement in combatting organized crime figures who could avoid apprehension by local officials by travelling interstate. See Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971); United States v. Nardello, 393 U.S. 286, 290-91, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969). Frequent references are made in the legislative history to “continuous course of conduct,” “business enterprises,” and “organized crime.” Nonetheless, the Supreme Court has noted that “the reach of the statute clearly was not limited to instances in which organized criminal activity in one State is managed from another State . . . .” Erlenbaugh v. United States, 409 U.S. 239, 247 n.21, 93 S.Ct. 477, 482 n.21, 34 L.Ed.2d 446 (1972) (Court’s emphasis). The evidence most helpful to the defendants’ contention can be found in testimony before the Senate Committee of the Judiciary, (reprinted in S.Rep.No. 644, 87th Cong. 1st Sess.1961). Attorney General Robert F. Kennedy stated that the “target” of the bill clearly is organized crime. The travel that would be banned is travel “in furtherance of a business enterprise” which involves gambling, liquor, narcotics, and prostitution offenses or extortion or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise. We are unconvinced that this evidence of legislative intent compels the result suggested by the defendants. Where the statutory",
"fraud on a small scale no doubt is very widespread in this country. Many professional or business people may not regard it a serious infraction of society’s rules to assist customers or patients in the small scale cheating of insurance companies. Yet, like the Second Circuit in Myers, which said it could not accept an “induce ment” argument that a proferred bribe was so large a congressman could not be expected to resist, 692 F.2d at 837-38, we cannot accept the notion that insurance cheating is so commonplace that it is improper for the government to try to catch and convict citizens who engage in it. We have held that the government need not have a reasonable suspicion of wrongdoing in order to conduct an undercover investigation of a particular person. United States v. Biswell, 700 F.2d 1310, 1314 (10th Cir.1983). See also United States v. Salazar, 720 F.2d 1482, 1488 (10th Cir.1983). Cf. United States v. Swets, 563 F.2d 989, 991 (10th Cir.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 748, 54 L.Ed.2d 770 (1978) (government not required to show in entrapment case that it had reasonable grounds to believe defendant was engaged in unlawful activities). No issue of impermissible selective prosecution was raised in the instant case. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Ill We have also considered defendant’s conviction and the government agents’ conduct in light of our supervisory power over the administration of criminal justice. But the breadth of the Supreme Court’s language in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), requires us to conclude, despite the differences between Payner and the case at bar, that we may not fashion a “sub-constitutional” rule to permit dismissal of this case because of the government agents’ conduct. See United States v. Myers, 692 F.2d 823, 847 (2d Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 2437, 77 L.Ed.2d 1322 (1983). In Payner government agents sought to examine materials in a third party’s briefcase that they thought might incriminate defendant. To gain access"
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1015(b), to provide for the joint administration of the respective debtors’ estates. But joint administration should not be confused with consolidation. Consolidation results in the creation of one estate from two or more; joint administration does not, but is rather done for procedural convenience by avoiding the duplication of effort that would result if cases involving related debtors were to proceed separately. In re Blair, 226 B.R. 502, 505 (Bankr.D.Me.1998). See also Fed. R.Bankr.P.2009(e) (trustee shall keep separate accounts for each jointly administered estate). Therefore, for all the reasons just explained, the Debtor, Mr. Toland, is not entitled to claim an exemption in his wife’s vehicle. This holding is consistent with past decisions of a similar nature decided by this Court: REDACTED where title to vehicle reflected debtor as sole owner, debtor could not claim that son was intended owner; In re Smith, 310 B.R. 320, 323-24 (Bankr.N.D.Ohio 2004), a non-debtor spouse, whose wages did not contribute to a tax overpayments, had no interest in the ensuing refund which could operate to exclude it from the debtor’s bankruptcy estate. In reaching the conclusions found herein, the Court has considered all of the evidence, exhibits and arguments of counsel, regardless of whether or not they are specifically referred to in this Decision. Accordingly, it is ORDERED that the Trustee’s Objection to the claim of exemption of the Debtor, James W. Toland, Sr., in the motor vehicle titled in the name of the Co-debtor,
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"owner. On the Chapter 7 schedules the Debtors listed the promissory note as a debt and the pickup truck as property of the estate. The Debtors also claimed the truck as an exemption from the estate. The Trustee objected to the claim of exemption, an Objection which was sustained by this Court on February 23, 1984. On December 21, 1983, the Trustee-Plaintiff filed this Complaint seeking a recovery of the truck which remained in the Debtors’ possession. At the Pre-Trial the Defendant-Debtor argued that her co-signature on the note was given in order to allow her son to purchase the truck. She further argued at the Pre-Trial that since her son was the only user of the vehicle, that he had made all the payments to the creditor, and that the intent of all parties involved was that the truck belonged to him, the truck should not properly be included in the estate. The record reflects that the time set on February 23, 1984, for the submission of arguments has expired and that only the arguments of the Trustee have been submitted. LAW The property which becomes part of the bankruptcy estate when a Petition is filed is addressed by 11 U.S.C. § 541(a) which states in pertinent part: “The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located ... all legal or equitable interests of the debtor in property as of the commencement of the case.” As correctly argued by the Trustee, in Ohio, legal title to motor vehicles is evidenced only by the name of the owner on a duly certified certificate of title. See, Ohio Revised Code § 4505.04. Accordingly, the only owner which this Court may recognize as the actual owner of the vehicle is the Debtor. Pursuant to the provisions of § 541(a), her legal title has become part of the bankruptcy estate. This conclusion is supported by the fact that the Debtors, by inclusion of the truck on their schedule of property, have admitted that it"
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"which courts hear two or more related cases of entities that have filed bankruptcy petitions as a single case. The purpose of joint administration is to make case administration easier and less costly. The process has been called a “creature of procedural convenience,” because it avoids the duplication of effort that would result if cases involving related debtors were to proceed separately. The most significant difference between joint administration and substantive consolidation is that joint administration requires the estate of each debtor to be kept separate and distinct. Joint administration does not affect the substantive rights of creditors and other interested parties. Thus, administrative efficiency is achieved without sacrificing the parties’ substantive rights. Conversely, substantive consolidation effects a merger of the consolidated debtors’ estates, which creates a single estate that is recognized throughout the remaining bankruptcy process. J. Stephen Gilbert, Substantive Consolidation in Bankruptcy: A Primer, 43 Vand. L.Rev. 207, 212 (1990)(footnotes omitted). See also Fed. R. Bankr.P. 1015(b)(court may order joint administration of estates of husband and wife); Fed. R. Bankr.P.2009(a)(sin-gle trustee may oversee jointly administered estates); Fed. R. Bankr.P.2009(e)(trustee shall keep separate accounts for each jointly administered estate); Tisha Morris Federico, The Impact of the Defense of Marriage Act on Section 302 of the Bankruptcy Code and the Resulting Renewed Interest in the Equitable Doctrine of Substantive Consolidation, 103 Com. L.J. 82, 83-87 (1998). After substantive consolidation, “the consolidated estates create a single fund from which all of the claims of the consolidated debtors are satisfied.” Gilbert, supra, at 209. See also FDIC v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992); Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir.1991); Smith v. Mortgage Funding Corp. (In re Smith and Kourian), 216 B.R. 686, 687 n. 2 (1st Cir. BAP 1997); James F. Queenan et al., Chapter 11 Theory and Practice § 24.01 (1994). Of course, if substantive consolidation is appropriate, I must consider the U.S. Trustee’s dismissal motion in light of the Blairs’ consolidated assets and consolidated liabilities and must necessarily consider the totality of their joint circumstances in assaying whether granting",
"estates are administered jointly pursuant to section 302(b). They have not been substantively consolidated. See In re Blair, 226 B.R. 502, 506 (Bankr.D.Me.1998). While this legal conclusion may be a distinction without a difference in cases in which the spouses own jointly all assets and owe jointly all debts, it is relevant in cases in which one spouse owns significant amounts of separate property or owes significant amounts of debt upon which the other spouse is not obligated. In such cases, determining the proper apportionment of the spouses’ assets is important to the trustee and the creditors and also respects the fact that the Code anticipates married debtors in a joint case will make separate claims to exemptions. See Carlson, 394 B.R. at 497 (“Allowing debtors to ‘transform’ separate property to joint property, with the result being to allow a co-debtor spouse to claim an exemption in property she does not own, or to allow a non-debtor spouse to keep half a tax refund out of the debtor-spouse’s estate, is not equitable.”); see also 11 U.S.C. § 522(m). Contrary to the Debtors’ suggestion, the Trustee is not asking the Court to change its position on the apportionment of a joint asset. The law has always required the Court to respect the individual ownership of property by spouses in a joint case unless the cases have been substantively consolidated. Those bankruptcy courts adopting what is often referred to as the “majority” rule — that the refund should be divided based upon the withholding — have done so in reliance upon the fact that the applicable state law does not presume equal ownership of property by spouses. See Carlson, 394 B.R. at 494 (applying Minnesota law); In re Smith, 310 B.R. 320 (Bankr.N.D.Ohio 2004) (applying Ohio law). Georgia law, like that applicable in the Carlson case, has no presumption of equal ownership of property between spouses. See O.C.G.A. § 19-3-9 (“The separate property of each spouse shall remain the separate property of that spouse, except as provided in Chapters 5 and 6 of this title and except as otherwise provided by law.”).",
"jointly administered estates); Fed. R. Bankr.P.2009(e)(trustee shall keep separate accounts for each jointly administered estate); Tisha Morris Federico, The Impact of the Defense of Marriage Act on Section 302 of the Bankruptcy Code and the Resulting Renewed Interest in the Equitable Doctrine of Substantive Consolidation, 103 Com. L.J. 82, 83-87 (1998). After substantive consolidation, “the consolidated estates create a single fund from which all of the claims of the consolidated debtors are satisfied.” Gilbert, supra, at 209. See also FDIC v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992); Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir.1991); Smith v. Mortgage Funding Corp. (In re Smith and Kourian), 216 B.R. 686, 687 n. 2 (1st Cir. BAP 1997); James F. Queenan et al., Chapter 11 Theory and Practice § 24.01 (1994). Of course, if substantive consolidation is appropriate, I must consider the U.S. Trustee’s dismissal motion in light of the Blairs’ consolidated assets and consolidated liabilities and must necessarily consider the totality of their joint circumstances in assaying whether granting them Chapter 7 relief would constitute a “substantial abuse.” Substantive consolidation is an equitable doctrine. See e.g., Reider v. FDIC (In re Reider), 31 F.3d 1102, 1105 (11th Cir.1994); Colonial Realty Co., 966 F.2d at 59; In re Smith and Kourian, 216 B.R. at 687 n. 2; see generally 4 Queenan, supra, §§ 24.01-24.22. Substantive consolidation of joint debtors’ separate estates is a matter within my discretion, see Fed. R. Bankr.P. 1015 advisory committee’s note, but that discretion must be exercised to effect a fair result to the parties whose interests will be affected (viz creditors). See In re Birch, 72 B.R. 103, 106 (Bankr.D.N.H.1987)(spouses’ estates would not be consolidated because to do so would affect the creditors of each differently and the estates were not inextricably entwined); In re Snider Brothers, 18 B.R. 230, 234 (Bankr.D.Mass.l982)(“[T]he only real criterion is ... the economic prejudice of continued debtor separateness versus the economic prejudice of consolidation.”). Absent substantive consolidation, Rodney’s creditors may look to Rodney’s assets (and, in Chapter 13 or outside bankruptcy, Rodney’s assets and",
"Unless otherwise noted, all references herein to \"section” refer to section of the Bankruptcy Code, 11 U.S.C. §§ 101-1330. . Federal Rule of Bankruptcy Procedure 1015(b) in relevant part provides: If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wife ..., the court may order a joint administration of the estates. Prior to entering an order the court shall give consideration to protecting creditors of different estates against potential conflicts of interest. . Although an old case, the opposing parties have offered no authority for this Court to question the holding in In re Dobbel’s Estate, 104 Cal. 432, 435, 38 P. 87 (1894), that the insurance proceeds are a spouse’s separate property even if purchased with community assets. . The Court declines to consider whether the Debtor is jointly liable for the partnership debts as this should be done in the context of the claims objection procedure. . The Court did find administratively consolidated cases where the court separately converted one of the cases. In re Sibarium, 107 B.R. 108, 109 (N.D.Tex.1989). .The trustee’s opposition states there are approximately $186,570.11 in partnership claims while the Court's claims register lists unsecured claims in an approximate amount of $133,-775.57, and the schedules reflect secured claims of $122,265.00, both amounts well within the confines of section 109(e)'s requirements for a chapter 13 debtor. Additionally, the filed schedules reflect that the Debtor has a regular monthly income of $5,537.00.",
"Inc.), 954 F.2d 1 (1st Cir. 1992), the First Circuit noted: Consolidation is permitted only if it is first established that the related debtors’ assets and liabilities are-so intertwined that it would be impossible, or financially prohibitive, to disentangle their affairs. The trustee may request consolidation to conserve for creditors the monies which otherwise would be expended in prolonged efforts to disentangle the related debtors’ affairs. Nevertheless, the bankruptcy court must balance the potential benefits of consolidation against any potential harm to interested parties. In re Hemingway Transp., Inc., 954 F.2d at 11 n.15 (citations omitted). The First Circuit in Hemingway added that because “[substantive] consolidation can cause disproportionate prejudice among claimants required to share the debtors’ pooled assets, the party requesting substantive consolidation must satisfy the bankruptcy court that, on balance, consolidation will foster a net benefit among all holders of unsecured claims.” 954 F.2d at 11-12 (footnote omitted). While noting that the First Circuit specifically has approved substantive consolidation of multiple debtors, but not substantive consolidation involving non-debtors, the court in Logistics Information Sys., Inc., 432 B.R. at 11, observed that the test adopted by the First Circuit in Hemingway is similar to the test set forth in Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270, 276 (D.C. Cir. 1987), in which the District of Columbia Circuit considered the following factors, all of which must be satisfied: “(1) the movant must show a ‘substantial identity between the entities to be consolidated;’ (2) the movant must also demonstrate that ‘consolidation is necessary to avoid some harm or to realize some benefit;’ and (3) if a creditor will be prejudiced, the benefits of consolidation must heavily outweigh the harm.” Logistics Information Sys., Inc., 432 B.R. at 12. The Logistics court also observed that the bankruptcy court, while employing the Auto-Train test, also considered substantive consolidation with reference to the standard for piercing the coipo-rate veil. Id. (citing, inter alia, Aoki v. Atto Corp. (In re Aoki), 323 B.R. 803, 812 (1st Cir. B.A.P. 2005), in which the court applied the factors set forth in My Bread Baking",
"apparent entities into a single estate. The assets and liabilities of two or more entities are consolidated into a common fund of assets and a single body of creditors. In re Cooper, 147 B.R. 678, 682 (Bankr.D.N.J.1992). The purpose of the substantive consolidation is the equitable distribution of the debtor’s property among all its creditors. Union Savings Bank v. Augie/Restivo Baking Co., Ltd. (In re Augie/Restivo Baking Co., Ltd.), 860 F.2d 515, 518 (2d Cir.1988). The Bankruptcy Court has the jurisdiction to order a substantive consolidation pursuant to its equitable powers granted in section 105(a) of the Bankruptcy Code. Although the section does not specifically authorize the consolidation of the assets of a non-debtor with the estate of a debtor, Courts have recognized this as a valid application of § 105(a). Munford, Inc., d/b/a/ Majik Market v. Toc Retail, Inc. (In re Munford, Inc.), 115 B.R. 390 (Bankr.N.D.Ga.1990); See also, Auto-Train Corp. v. Midland-Ross Corp., 810 F.2d 270, 276 (D.C.Cir.1987); see generally, In re Walway Co., 69 B.R. 967 (Bankr.E.D.Mich.1987); United States v. Fairfield Construction Co. (In re Fairfield Construction Co.), 1991 Lexis 1395. The corporate veil does not exist between the entities and must be disregarded. A debtor must not be accorded the protections of a corporate entity if the debtor itself has ignored the integrity of the corporation and has operated independent of the protections guaranteed to a corporate entity. Although the Sixth Circuit has not pronounced a standard for the allowance of substantive consolidation of two or more entities into a single estate, we may look to other circuits for guidance. At least two general tests have been articulated in other circuits. See In re Standard Brands Paint Co., 154 B.R. 563, 567-69 (C.D.Cal.1993). The first test was articulated by the D.C. Circuit in In re Auto-Train Corp., Inc., 810 F.2d 270, 276 (D.C.Cir.1987). The Auto-Train standard relies upon a three part analysis: 1. The proponent must show a substantial identity between the entities to be consolidated, and 2. The proponent must show that consolidation is necessary to avoid some harm or to realize some benefit, and",
"appeals in Sumy was not faced with the issue presented by these cases. While the facts of Sumy fully support the remedy given to the chapter 7 trustee, the case is not support for the debtors’ position here. Sumy merely continues the long line of cases originating with Krakower that are designed to prevent and remedy a particular type of abuse — creating an exemption in bankruptcy that does not exist at state law by manipulating the filing of petitions in bankruptcy by the spouses. It was intended to prevent an abuse, not create a new one. Neither Reid nor Sumy support the debtors’ proposition that administration of entireties property is limited to joint creditors. Substantive Consolidation The manner in which the cases are administered — that is, whether they are administratively consolidated or substantively consolidated — may be important to both the debtors and to the creditors. There is a difference between administrative consolidation and substantive consolidation. Administrative consolidation, or joint administration, is justified on the grounds of convenience and efficiency. 2 Collier on Bankruptcy ¶ 302.06, at 302-17 (15th ed. rev., 2000). Joint administration permits a trustee to administer two cases together, however, the individual estates remain legally distinct entities. The rights of the debtors, the creditors and the trustee are not altered. In re Blair, 226 B.R, 502, 505 (Bankr.D.Me., 1998); McCulley, 150 B.R. at 360. When a trustee pays allowed claims, creditors of each estate may receive different dividends. This arises from two factors: the assets recovered in each estate and the allowed claims in each case. Some creditors will be creditors of only one estate while others may be joint creditors. Some assets liquidated by the trustee may have belonged to one debtor alone. Other assets may have been joint assets. This may result in two estates with different amounts of money available for distribution to creditors holding different claims, claims different as to amount and priority. While all creditors of the same class in each estate will receive the same pro rata distribution, usually creditors of the two estates will receive a different percentage",
"of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse. The commencement of a joint ease under a chapter of this title constitutes an order for relief under such chapter. (b) After the commencement of a joint case, the court shall determine the extent, if any, to which the debtor’s estates shall be consolidated. 11 U.S.C. § 302. “Section 302(a) permits a married couple to file a joint petition. Section 302 is designed for ease of administration and to permit the payment of one filing fee. In re Crowell, 53 B.R. 555, 557 (Bankr.M.D.Tenn.1985). But, as the Debt- or points out, the joint petition actually creates two separate bankruptcy estates.” In re Estrada, 224 B.R. 132, 135 (Bankr.S.D.Cal.1998) (citations omitted). Unless the joint debtors’ estates are consolidated by the Court pursuant to § 302(b), the two estates remain separate. In re Estrada, 224 B.R. at 135. Rule 1015(b) of the Federal Rules of Bankruptcy Procedure supports the conclusion that the filing of a joint case creates two separate estates. Rule 1015(b) provides in part: Rule 1015. Consolidation or Joint Administration of Cases Pending in Same Court (b) CASES INVOLVING TWO OR MORE RELATED DEBTORS. If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wife .... the court may order a joint administration of the estates. Prior to entering an order the court shall give consideration to protecting creditors of different estates against potential conflicts of interest. ... Fed.R.Bankr.P. 1015(b)(Emphasis supplied). See also In re Goldstein, 383 B.R. 496, 500 (Bankr.C.D.Cal.2007). The Eleventh Circuit Court of Appeals adheres to the determination that the filing of a joint petition creates two separate estates. “The filing of a joint petition by a husband and wife does not result in the automatic substantive consolidation of the two debtors’ estates.... Used as a matter of convenience and cost saving, it does not cx-eate substantive rights.” In re Reider, 31 F.3d 1102, 1109 (11th Cir.1994). “Under joint administration, the estate of",
"granting the Blair’s motion would ensure that Rodney’s liabilities encompass Darlene’s (and hers, his). Discussion 1. Substantive Consolidation Rodney and Darlene filed their case jointly under § 302(a) which provides: A joint case under a chapter of this title is commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse. The commencement of a joint case under a chapter of this title constitutes an order for relief under such chapter. 11 U.S.C. § 302(b). However, as § 302(b) makes clear, the filing of a joint petition does not, by itself, consolidate the estates and their concomitant liabilities: “After the commencement of a joint case, the court shall determine the extent, if any, to which the debtor’s estates shall be consolidated.” § 302(b). One commentator has summarized the differences between joint administration and substantive consolidation as follows: Substantive consolidation must not be confused with the related procedure of joint administration. Joint administration is a procedure by which courts hear two or more related cases of entities that have filed bankruptcy petitions as a single case. The purpose of joint administration is to make case administration easier and less costly. The process has been called a “creature of procedural convenience,” because it avoids the duplication of effort that would result if cases involving related debtors were to proceed separately. The most significant difference between joint administration and substantive consolidation is that joint administration requires the estate of each debtor to be kept separate and distinct. Joint administration does not affect the substantive rights of creditors and other interested parties. Thus, administrative efficiency is achieved without sacrificing the parties’ substantive rights. Conversely, substantive consolidation effects a merger of the consolidated debtors’ estates, which creates a single estate that is recognized throughout the remaining bankruptcy process. J. Stephen Gilbert, Substantive Consolidation in Bankruptcy: A Primer, 43 Vand. L.Rev. 207, 212 (1990)(footnotes omitted). See also Fed. R. Bankr.P. 1015(b)(court may order joint administration of estates of husband and wife); Fed. R. Bankr.P.2009(a)(sin-gle trustee may oversee",
"requisite property interest in a tax refund which would entitle such spouse to an exemption.”); In re Honomichl, 82 B.R. 92, 94 (Bankr.S.D.Iowa 1987) (“a joint filing does not change the ownership of property rights between taxpayers.”); In re Carey, 1993 WL 541461 *2 (Judge Williams, Bankr.N.D.Ohio) (“refund of taxes paid by one spouse, who files jointly with the other spouse, remain the property of the wage-earning spouse.”). But see Loevy v. Aldrich (In re Aldrich), 250 B.R. 907, 913 (Bankr.W.D.Tenn.2000) (“in an appropriate case a non-income producing non-filing spouse, who is a homemaker that makes substantial contributions to the family, may be entitled to have a property interest in a joint tax refund check, notwithstanding that all the taxable income was generated by the debtor-spouse.”) Consequently, in this particular case, since the Debtor’s spouse did not contrib ute to any of the tax overpayments made in the year 2002, she has no property interest in any refund due therefrom which can be excluded from the Debtor’s bankruptcy estate. As a consequence, the Trustee, subject of course to any applicable exemptions, is conferred with the right to administer any refund that the Debtor is entitled to receive as the result of his 2002 year tax overpayment. As it concerns this decision, a few final observations. First, it is realized that pursuant to 26 U.S.C. § 6013(d)(3), a non-incoming producing spouse who signs a joint tax return is subject to joint and several liability for any tax owing. This predicament, however, is mitigated by the fact that the filing of a joint return is not mandatory, and as noted above, may confer upon both spouses certain tax advantages. The concern of joint and several liability is also alleviated by the fact that 26 U.S.C. § 6015 relieves an “innocent spouse” from any personal liability on a jointly filed tax return. Second, it is observed that this holding may also work against the bankruptcy estate in the reverse situation where a debt- or’s spouse, who is not in bankruptcy, is the only party contributing to the tax overpayment. Finally, it is noted"
] |
F.2d 934, 50 CCPA 1153. Appellant’s reply brief in rebuttal argues that since this is solely a question of law, rather than a question of technical facts, the issue may be raised here for the first time. We do not think the solicitor is correct in his contention. The section 102 (e) question may be properly raised here for the first time because we must determine whether the reference is available. The particular question, whether we may consider the Murray reference, must be settled prior to determining the legal effect of the disclosure of that reference. We find no compelling reason to overrule our recent decisions in In re Harry, supra, or In re Kander, 312 F.2d 834, 50 CCPA 928, REDACTED d 316, 44 CCPA 904, or go contrary to the Court of Appeals of the District of Columbia circuit, Hazeltine Research, Inc. v. Ladd, 340 F.2d 786, cert. granted 380 U.S. 960, 85 S.Ct. 1108. Thus Murray being available as prior art for a section 103 rejection, we look next to see whether that section is satisfied. Minion describes production of cortisone hemisuccinate by the same proc ess as appellant uses with hydrocortisone. Cortisone differs from hydrocortisone in having a keto group [0=C<] rather than a hydroxyl group [HO<X] at the 11 position. The hemisuccinate of cortisone is found by Minion to be four times as soluble in water as the
|
[
"application the art was fully aware of the substitution of Cl and CF3 potentiating groups in phenothiazines analogous to those now claimed by Zenitz. The examiner held, and the board agreed, that the substitution of CF3 for Cl in the phenothiazines disclosed by Cusic, would be obvious to one of ordinary skill in the art. Zenitz contends that the Cusic, Gulesich and Ullyot patents are not available as references for an obviousness rejection under Section 103 because they issued on applications which, although filed earlier than his, were copending therewith. Zenitz maintains that he could not have been aware of the Cusie or Gulesieh disclosures at the time he filed his application. This court has held in a number of decisions that a United States patent speaks for all it discloses as of its filing date, even when used in combination with other references. In re Kander, 312 F.2d 834, 50 CCPA 928; In re Gregg, 244 F.2d 316, 44 CCPA 904; In re Seid, 161 F.2d 229, 34 CCPA 1039. In re Harry, 333 F.2d 920, 51 CCPA, --, decided concurrently herewith, holds that 35 U.S.C. § 103 is in pari materia with 35 U.S.C. § 102(e) and points out that the latter section was intended to enact the rule of Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651, wherein the court said: “ * * * The delays of the patent office ought not to cut down the effect of what has been done. The description shows that Whitford was not the first inventor. Clifford had done all that he could do to make his description public. He had taken steps that would make it public as soon as the Patent Office did its work, although, of course, amendments might be required of him before the end could be reached. We see no reason in the words or policy of the law for allowing Whitford to profit by the delay and make himself out to be the first inventor when he was not so in fact, when Clifford had shown knowledge"
] |
[
"as to its availability. As to the Land and Eogers ’606 references, however, appellants raise the second part of the question about availability, based on our decision in In re Blout and Rogers, 52 CCPA 751, 333 F. 2d 928, 142 USPQ 173 (1964). They admit that they did not argue this point of law before the board, nor could they have done so as Blout and Rogers was not decided until more than four months after the board decision. The solicitor’s brief objects to our considering it on the usual ground that we do not generally consider points not raised below, citing In re Herthel, 36 CCPA 1095, 174 F. 2d 935, 82 USPQ 55, In re Panagrossi et al., 47 CCPA 904, 277 F. 2d 181, 125 USPQ 410, and In re Soli, 50 CCPA 1288, 317 F. 2d 941, 137 USPQ 797. We find nothing in those cases or in the two other cases cited in Herthel which precludes us from dealing with this point of law. In none of those cases was it a point of law that we declined to consider but rather such things as the interpretation of a word (Herthel), the factual significance of a claim limitation, a question of operability, the construction of a claim (Panagrossi), and the propriety of actions of the examiner to which response could have been made in the Patent Office (Soli). Generally speaking, we decline to consider questions which could and should have been raised in- the Patent Office so that we have the benefit of the views of its trained personnel on matters within their special competence .and so that the Patent Office has the opportunity to furnish its position as expert on technical questions, the interpretation.of references, applications, and the like. We will, nevertheless consider a question of law, such as the availability of a reference, which is necessary to the determination of patentability. In re Schoenwaldt, 52 CCPA 1258, 343 F. 2d 1000, 145 USPQ 289, 290. Indeed, we believe we are in a position, to interpret our own opinion in Blout cmd Rogers",
"with the application on appeal. The statutory ground of rejection involved in this question is 35 USC 103 obviousness. Though appellants concede such references are “prior art” under section 102, they raised the old question whether, in view of the unavailability of the contents of pending applications under 35 USC 122, the patents issuing thereon are available as prior art to show obviousness under section 103, as of their filmg dates in the United States. See 35 USC 102(e). Appellants held this question open in their brief, filed May 7, 1965, because Haz<ine was then pending before the Supreme Court. December 8, 1965, the point was decided adversely to appellants. Patents otherwise available as references may be used singly or combined as of their U.S. filing dates to support section 103 rejections though copending with the application at bar. We so held in In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964). With respect to this case, that makes Yutzy clearly available as a reference, no other question being raised as to its availability. As to the Land and Eogers ’606 references, however, appellants raise the second part of the question about availability, based on our decision in In re Blout and Rogers, 52 CCPA 751, 333 F. 2d 928, 142 USPQ 173 (1964). They admit that they did not argue this point of law before the board, nor could they have done so as Blout and Rogers was not decided until more than four months after the board decision. The solicitor’s brief objects to our considering it on the usual ground that we do not generally consider points not raised below, citing In re Herthel, 36 CCPA 1095, 174 F. 2d 935, 82 USPQ 55, In re Panagrossi et al., 47 CCPA 904, 277 F. 2d 181, 125 USPQ 410, and In re Soli, 50 CCPA 1288, 317 F. 2d 941, 137 USPQ 797. We find nothing in those cases or in the two other cases cited in Herthel which precludes us from dealing with this point of law. In none of those cases",
"art.” The solicitor states, “Whether the art recognized that the claimed combination ‘might demonstrate concert of action of its elements in the significant area of lessened adrenal atrophy’ is immaterial, since the sole issue in this appeal is whether it would have been obvious to substitute prednisone or pred-nisolone for cortisone in the combination of Salcort or Holt, and not whether it would be obvious that such substitution would produce lessened adrenal atrophy.” We do not entirely agree with this framing of the issue. This court has frequently stated that properties of chemical compounds must be considered in determining obviousness under 35 U.S.C. 103. In re Lambooy, 49 CCPA 985, 300 F. 2d 950, 133 USPQ 270; In re Petering and Fall, 49 CCPA 993, 301 F. 2d 676, 113 USPQ 275; In re Papesch, 50 CCPA 1084, 315 F. 2d 381, 137 USPQ 42. We think this also applies to such compositions as we have here, i.e., admixtures of two or more compounds. Therefore, the issue of obviousness in this case can be resolved only after considering the differences between the prior art and the claimed compositions chemically and in view of their pharmaceutical' properties. To do so we consider the cited references and what we believe they would teach one skilled in the art. Appellant agrees that cortisone-salicylate mixtures are anti-inflammatory agents, and that prednisone and prednisolone possess anti-inflammatory activity three to four times as great as cortisone or hydrocortisone. The disagreement revolves around interpretation of Holt et al. Appellant contends that Holt et al. do not “suggest” substitution of prednisone or prednisolone for cortisone, since their data áre “inconclusive” and warn of “toxic complications.” Further appellant argues that one skilled in the art, upon finding that prednisone and prednisolone possess enhanced potency without increased side effects, would cease looking for better anti-inflammatory agents. We do not agree with appellant’s interpretation of Holt et al., pertinent portions of which state (all emphasis onrs) : When planning this new study [including combined salicylate-cortisone therapy] we could find no report of combined treatment of this kind. We expected to reach",
"with undeveloped areas is at least partially completed prior to substantial permeation and development of the next inner emulsion layer by said liquid composition. In allowing it, the board pointed out that it is limited to control of diffusibility by layerwise permeation, which, the board said, “the art of reocrd * * * does not suggest * * As appellants’ brief correctly points out, the issues require an adjudication of the obviousness of each of the 30 appealed claims in view of the prior art but before we can do this we have to deal with Point 2 of that brief raising questions as to whether some of the references underlying the rejection are, in law, available as prior art. This question, as argued, falls into two parts. What References are “Prior Art” — Part I This first aspect of the question involves the issue recently before the United States Supreme Court in Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 147 USPQ, 429 (1965). The Land, Rogers ’606, and Yutzy patents were all copending with the application on appeal. The statutory ground of rejection involved in this question is 35 USC 103 obviousness. Though appellants concede such references are “prior art” under section 102, they raised the old question whether, in view of the unavailability of the contents of pending applications under 35 USC 122, the patents issuing thereon are available as prior art to show obviousness under section 103, as of their filmg dates in the United States. See 35 USC 102(e). Appellants held this question open in their brief, filed May 7, 1965, because Haz<ine was then pending before the Supreme Court. December 8, 1965, the point was decided adversely to appellants. Patents otherwise available as references may be used singly or combined as of their U.S. filing dates to support section 103 rejections though copending with the application at bar. We so held in In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964). With respect to this case, that makes Yutzy clearly available as a reference, no other question being raised",
"family forms a homologous series, the constant difference between successive members being one carbon atom and two hydrogen atoms, e. g., CH4 (methane), C2H5 (ethane), etc. See notes 9-10 supra, for definitions of analogs and isomers. . See E. I. DuPont de Nemours & Co. v. Ladd, 117 U.S.App.D.C. 246, 328 F.2d 547 (1964); Parker v. Marzall, 92 F. Supp. 736 (D.D.C.1950); Application of Papesch, 315 F.2d 381, 50 CCPA 1084 (1963). . See, e. g., Application of Lohr, 317 F.2d 388, 50 CCPA 1274 (1963). . For recent discussion see Application of McLamore, 379 F.2d 985, 989-990 (C.C.P.A.1967); Application of Wagner, 371 F.2d 877 (C.C.P.A.1967); Application of Lunsford, 357 F.2d 380 (C.C.P.A.1966). . See Western, Is 35 U.S.C. § 103 Applicable to Chemical Compounds? 8 Idea 443 (1964); Note, 32 Geo.Wash. L.Rev. 429 (1963). . The Commissioner's position, here paraphrases the Board of Patent Appeals in Papeseh: Such proof of advantages is not seen to occupy a different relationship than proof of commercial success or of the “filling of a long-felt want” often considered as sufficient to establish patentability in cases where some doubt of unobviousness exists, but which have been consistently held as insufficient alone to override the holding of unpatentability in a clear case of obviousness. Papesch, supra, 315 F.2d at 386 (emphasis by court). It was rejected by the Papeseh court. It may well be true that in the field of chemistry, the discovery of useful properties will be the factor primarily responsible for commercial success or a solution to a long felt need, but that alone does not make it a secondary factor. . As was stated at a recent seminar on pharmaceutical invention, [t]ake away the concept of molecular modification and very few of our most outstanding drugs would be available today. Thus, the difference between morphine and codeine is a methyl group; between 11 desoxycorticosterone, which does nothing for humans, and cortisone, which does everything, is one oxygen atom. Seminar, Pharmaceutical Invention, 47 J. Pat.Oi'V.Soc’y 648, 682 (1965). . We are not unmindful that we are dealing in the area commonly referred to",
"“Salcort” combination. Since it is known thlat the steroids employed by appellant have the same effect as cortisone, except for being more potent,, it appears to us that it would be- obvious-to at least try -to substitute those steroids for cortisone in. combinations in which cortisone had been employed such as in the “Salcort” composition. The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior art. See In re Libby, 45 CCPA 944; 1958 C.D. 324; 118 USPQ 94; 733 O.G. 294 ; 255 Fed. (2d) 412; and In re Gauerke, 1937 C.D. 119; 475 O.G. 3; 24 CCPA 725; 86 Fed. (2d) 330. We do not consider the contentions relative to the fact that Holt et al. did not employ controls or that the results there may have been considered somewhat uncertain material to our conclusion. Obviousness does not require absolute predictability. In re Moreton, 771 O.G. 621; 48 CCPA 928; 288 Fed (2d) 940; 129 USPQ 288. Further, the examiner had previously stated in his answer, The showings of record attempting to establish synergism in the claimed compositions are conceded to show improved results over the “Salcort” composition or Holt et al. combination therapy. * * * It is not believed that the issue here turns on the ability of an investigator to predict that the particular claimed steroids will be ’operable to give the improved result, 'but rather whether there is any reason to suppose that such steroids, generally, accepted in the art as being themselves improvements over cortisone acetate, would not be suitable. Applicant has not advanced any reason or presented any evidence that the prior art taught against prednisone or prednisolone in lieu of the cortisone of the “Sal-cort” or Holt et al. references. Therefore it would be expected that where the later available analogs of cortisone are known to be many times more physiologically active and otherwise to be preferred for lack of side effects over cortisone, that antirheumatic",
"compositions containing said later available analogs would also be more active and have greater acceptability. Appellant argues that the Patent Office position is based on oversimplification of the problem of finding new anti-inflammatory agents with minimal side effects; that the mere existence of salicylate-cortisone tablets does not suggest substituting for cortisone the later-discovered more potent cortisone derivatives, prednisone and prednisolone; and that synergism attained by the new composition is unexpected. We affirm the rejection, however, since we believe the subject matter of the invention considered as a whole would have been obvious to one skilled in the art at the time the invention was made. But we do so on a rationale somewhat different from that of the Patent Office. Both the board and the solicitor consider the fact of superior pharmaceutical properties immaterial to determining obviousness. The board states, “The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior art.” The solicitor states, “Whether the art recognized that the claimed combination ‘might demonstrate concert of action of its elements in the significant area of lessened adrenal atrophy’ is immaterial, since the sole issue in this appeal is whether it would have been obvious to substitute prednisone or pred-nisolone for cortisone in the combination of Salcort or Holt, and not whether it would be obvious that such substitution would produce lessened adrenal atrophy.” We do not entirely agree with this framing of the issue. This court has frequently stated that properties of chemical compounds must be considered in determining obviousness under 35 U.S.C. 103. In re Lambooy, 49 CCPA 985, 300 F. 2d 950, 133 USPQ 270; In re Petering and Fall, 49 CCPA 993, 301 F. 2d 676, 113 USPQ 275; In re Papesch, 50 CCPA 1084, 315 F. 2d 381, 137 USPQ 42. We think this also applies to such compositions as we have here, i.e., admixtures of two or more compounds. Therefore, the issue of obviousness in this case can be resolved",
"CCPA 928; 288 Fed (2d) 940; 129 USPQ 288. Further, the examiner had previously stated in his answer, The showings of record attempting to establish synergism in the claimed compositions are conceded to show improved results over the “Salcort” composition or Holt et al. combination therapy. * * * It is not believed that the issue here turns on the ability of an investigator to predict that the particular claimed steroids will be ’operable to give the improved result, 'but rather whether there is any reason to suppose that such steroids, generally, accepted in the art as being themselves improvements over cortisone acetate, would not be suitable. Applicant has not advanced any reason or presented any evidence that the prior art taught against prednisone or prednisolone in lieu of the cortisone of the “Sal-cort” or Holt et al. references. Therefore it would be expected that where the later available analogs of cortisone are known to be many times more physiologically active and otherwise to be preferred for lack of side effects over cortisone, that antirheumatic compositions containing said later available analogs would also be more active and have greater acceptability. Appellant argues that the Patent Office position is based on oversimplification of the problem of finding new anti-inflammatory agents with minimal side effects; that the mere existence of salicylate-cortisone tablets does not suggest substituting for cortisone the later-discovered more potent cortisone derivatives, prednisone and prednisolone; and that synergism attained by the new composition is unexpected. We affirm the rejection, however, since we believe the subject matter of the invention considered as a whole would have been obvious to one skilled in the art at the time the invention was made. But we do so on a rationale somewhat different from that of the Patent Office. Both the board and the solicitor consider the fact of superior pharmaceutical properties immaterial to determining obviousness. The board states, “The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior",
"the chemical reaction to take place. Those familiar with spray drying know that dry products can be obtained even though a large amount of water may be present with the material to be dried. Appellant urges that his product does not have much sulfate as a contaminant. Though not mentioned by Friedrich et al., this seems to be merely an additional characteristic inherent in their process, In re Arnold et al., 50 CCPA 1166, 1963 C.D. 400, 794 O.G. 502, 315 F. (2d) 951, 137 USPQ 330. [Emphasis ours.] The board’s reference to “spray drying” appears to have been injected as something of which it was taking judicial notice, without having been mentioned in any reference of record. While Aydelotte et al. and Haywood both disclose spraying of some sort, neither spray dries. While we have heard of spray drying, it is not a technique of which we would feel free to take judicial notice. We are of the opinion that if the Patent Office wishes to rely on what “Those familiar with spray drying would know,” it must produce some reference showing what such knowledge consists of. So far as we can see, appellants do spray and their sprayed solution is dried. We are unable to find, however, any indication in the references that such a step would have the effect which appellants sought and found, namely, a reduction of the undesirable oxidation of sulfite to sulfate in an old reaction tending to produce sulfate when the reactant gas contained large amounts of oxygen. The board apparently thought that the minimizing of sulfate production would be mherent in the process of Friedrich et al. However, this is no support for a rejection for various reasons. Fried-rich et al. make no mention of it, as the board conceded. Their process is not appellants’ process. It is a reaction between solid, powered material and gas, the only water present being chemically combined water and hygroscopic water; appellants react sprayed solution and gas. As we pointed out in In re Adams, 53 CCPA 996, 356 F. 2d 998, 148 USPQ 742, the"
] |
King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428, 430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; REDACTED Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an
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[
"This second judgment was affirmed on appeal. In re S. R. A., Inc., 219 Minn. 493, 18 N. W. 2d 442. Certiorari was sought under § 237 (b) of the Judicial Code.- It was granted because of the importance and uncertainty of the question of the right of a State to tax realty sold by the United States in possession of a buyer from the Government under a contract of sale with uncompleted conditions for execution and delivery of the muniments of title. 326 U. S. 703. The supremacy of the Federal Government in our Union forbids the acknowledgment of the power of any State to tax property of the United States against its will. Under an implied constitutional immunity, its property and operations must be exempt from state control in tax, as in other matters. M’Culloch v. Maryland, 4 Wheat. 316, 425, et seq.; Van Brocklin v. Tennessee, 117 U. S. 151, 177; United States v. Allegheny County, 322 U. S. 174, 176-77. This postulate, as a matter of federal law, forces final decision of the validity of claimed exemptions under this immunity upon this Court. United States v. Allegheny County, supra, 183, and cases cited. The impact of state taxation on federal operations may be so close and threatening as to compel judicial intervention to declare the state tax invalid, as in the M’Culloch case, or so remote and incidental as to justify a federal court in refusing to relieve a taxpayer from a state tax. Alabama v. King & Boozer, 314 U. S. 1. The Ijne of taxability is somewhat irregular and has varied through the years.* * The right of a State to tax realty directly depends primarily upon its territorial jurisdiction over the area. The realty of petitioner had been conveyed to and used by the United States for the essential governmental activities which authorized the exercise of its exclusive legislative jurisdiction.' Exclusive legislative power is in essence complete sovereignty. That is, not only is the federal property immune from taxation because of the supremacy of the Federal Government but state laws, not adopted directly"
] |
[
"p. 107. Hawaii, Statute Laws, 1847, vol. II, pp. 81-94; Revised Laws, Hawaii, 1905, p. 1164 et seq. Thurston v. Bishop, 7 Haw. 421, 429, 437. “The. Commission was authorized to consider possession of land acquired by oral gift of Kamehameha I., or one of his high chiefs, as sufficient evidence of title to authorize an award therefor to the claimant. This we must consider as the foundation of all titles to land in this Kingdom, except such as come from the King, to any part of his reserved lands, and excepting also the lists of Government and Fort lands reserved. The land in dispute in this case is not one of those specifically reserved by the King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428, 430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; S. R. A., Inc. v. Minnesota, 327 U. S. 558, 564. Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of",
"to land held adversely to the sovereign. The case from this Court most often cited is United States v. Chaves, 159 U. S. 452. In that case, there was evidence of the prior existence of the lost grant. The title of the claimants was upheld but this Court then stated, at p. 464, conformably to Fletcher v. Fuller, supra: “Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law.” See United States v. Pendell, 185 U. S. 189, 200-201. A few years later, in United States v. Chavez, 175 U. S. 509, the problem of the lost grant again arose. In this case, as to one tract, case No. 38 at 516, the existence of the grant to Joaquin Sedillo was not shown except by a statement of January 11, 1734, that the tract conveyed “was acquired by his [affiant’s] father in part by grant in the name of His Majesty [The King of Spain] . . .” P. 514. In referring to the recognition of title in the private owners, this Court said, at 520: “Succeeding to the power and obligations of those Governments, must the United States do so? This is insisted by their counsel, and yet they have felt and expressed the equities which arise from the circumstances of the case. Whence arise those equities? That which establishes them may establish title. Upon a long and uninterrupted possession, the law bases presumptions as sufficient for legal judgment, in the absence of rebutting circumstances, as formal instruments, or records, or articulate testimony. Not that formal instruments or records are unnecessary, but it will be presumed that they once existed and have been lost. The inquiry then recurs, do",
"construe that law for themselves. The federal courts cannot be foreclosed by determinations of the Hawaiian law by the Hawaiian courts. They will lean heavily upon the Hawaiian decisions as to the Hawaiian law but they are not bound to follow those decisions where a claimed title to public lands of the United States is involved. The roots of respondents’ claim spring from Hawaiian law. As their claim to Palmyra continued after the United States acquired in 1898 whatever rights Hawaii then had, the validity of respondents’ claim must be judged, also, in the light of the public land law of the United States. The presumption of a lost grant to land has received recognition as an appropriate means to quiet long possession. It recognizes that lapse of time may cure the neglect or failure to secure the proper muniments of title, even though the lost grant may not have been in fact executed. The doctrine first appeared in the field of incorporeal hereditaments but has been extended to realty. The rule applies to claims to land held adversely to the sovereign. The case from this Court most often cited is United States v. Chaves, 159 U. S. 452. In that case, there was evidence of the prior existence of the lost grant. The title of the claimants was upheld but this Court then stated, at p. 464, conformably to Fletcher v. Fuller, supra: “Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law.” See United States v. Pendell, 185 U. S. 189, 200-201. A few years later, in United States v. Chavez, 175 U. S. 509, the problem of the lost grant again arose. In this case, as to",
"430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; S. R. A., Inc. v. Minnesota, 327 U. S. 558, 564. Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceable enjoyment, accompanied by the usual acts of ownership. So, after less than forty years’ possession of a tract of land, and proof of a prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held that the jury were properly instructed to presume that a patent had been duly issued. In regard, however, to crown or public grants, a longer lapse of time has generally been deemed necessary, in order to justify this presumption, than is considered sufficient to authorize the like presumption in the case of grants from private persons.” 32 Stat. 691, § 12. 1 Greenleaf, Evidence (16th Ed.), § 45a. Fletcher v. Fuller, supra, 551; United States v. Chavez, supra, 464; United States v. Chavez, supra, 520. Fletcher v. Fuller, supra, 552; Whitney v. United States, 167 U. S. 529, 546; Jover v. Insular Government, supra, 633. “OPINION BOOK Attorney General’s Department Pages",
"to establish a probability of the fact that in reality a grant was ever issued. It will afford a sufficient ground for the presumption to show that, by legal possibility, a grant might have been issued. And this appearing, it may be assumed in the absence of circumstances repelling such conclusion that all that might lawfully have been done to perfect the legal title was in fact done, and in the form prescribed by law.’ ” These principles were affirmed as applicable to grants of the kind we are considering in United States v. Chaves, 159 U. S. 452. Mr. Justice Shiras, speaking for the court, said: “ \"Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, whenever by possibility a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 508. Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not of itself furnish a conclusive- bar to the title of the sovereign, agreeably to the maxim, nullum tempus oeeurrid regi; yet if the adverse claim could have had a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment-accompanied by the usual acts of ownership. 1 Green-leaf Ev. § 45. “The principle upon which this doctrine rests is one of general jurisprudence, and",
"opinion that the title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate.” Clark v. Graham, 6 Wheat. 577, 5 L. Ed. 334; Kerr v. Moon, 9 Wheat. 565, 570, 6 L. Ed. 161; McCormick v. Sullivant, 10 Wheat. 192, 202, 6 L. Ed. 300; Taylor v. Benham, 5 How. 233, 273, 12 L. Ed. 130; McGoon v. Scales, 9 Wall. 23,19 L. Ed. 545; Burbank v. Conrad, 96 U. S. 291, 298, 24 L. Ed. 731; Brine v. Insurance Co., 96 U. S. 627, 639, 24 L. Ed. 858; Schley v. Pullman Car Co., 7 S. Ct. 730, 120 U. S. 575, 580, 30 L. Ed. 789; Langdon v. Sherwood, 8 S. Ct. 429, 124 U. S. 74, 81, 31 L. Ed. 344; DeVaughn v. Hutchinson, 17 S. Ct. 461, 165 U. S. 566, 570, 41 L. Ed. 827; Clarke v. Clarke, 20 S. Ct. 873, 178 U. S. 186, 191, 44 L. Ed. 1028; Olmsted v. Olmsted, 30 S. Ct. 292, 216 U. S. 386, 393, 54 L. Ed. 530, 25 L. R. A. (N. S.) 1292; Munday v. Wisconsin Trust Co., 40 S. Ct. 365, 252 U. S. 499, 503, 64 L. Ed. 684. This is not only the law of the federal courts, but of the state courts as well, and it is our understanding that it is the law of all countries. This court had occasion to apply the rule in Hotel Woodward v. Ford, 258 F. 322, 169 C. C. A. 338. In Wharton on Conflict of Laws (3d Ed.) vol. 2, c. 7, the writer states that, under the Homan law, the English common law, and that of the United States, real estate in all jurisdictions and by an uninterrupted current of authority is held subject to the lex rei sit®. A “lease,” strictly speaking, as Blackstone defined it, “is a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense) made for. life, for years, or at will, but always for a less",
"actual occupancy where the character of the property does not lend itself to such use. No other private owner claims any rights in Palmyra. From the evidence of title and possession shown in this record, we cannot say that the decrees below are incorrect. Judgment affirmed. Hawaii v. Mankichi, 190 U. S. 197. Hawaii v. Mankichi, 190 U. S. 197, 216. Declaration of Rights, 1839. Act to Organize Executive Departments and Joint Resolution, April 27, 1846, Hawaii, Statute Laws, 1845-46, vol. I, pp. 99, 277. Revised Laws of Hawaii, 1905, p. 1197 et seq. Thurston v. Bishop, 7 Haw. 421, dissent, n. at 454. The domain covered by the term seems to be not only the lands declared to be the private lands of the King by the Act of June 7, 1848, but also other unassigned lands later declared by legislative authority to be Crown Lands. Rev. Laws, Hawaii, 1905, p. 1227; Act of November 14, 1890, Laws, Hawaii, 1890, c. 75; Rev. Laws, Hawaii, 1905, p. 1229. Hawaii, Statute Laws, 1845-46, vol. I, p. 107. Hawaii, Statute Laws, 1847, vol. II, pp. 81-94; Revised Laws, Hawaii, 1905, p. 1164 et seq. Thurston v. Bishop, 7 Haw. 421, 429, 437. “The. Commission was authorized to consider possession of land acquired by oral gift of Kamehameha I., or one of his high chiefs, as sufficient evidence of title to authorize an award therefor to the claimant. This we must consider as the foundation of all titles to land in this Kingdom, except such as come from the King, to any part of his reserved lands, and excepting also the lists of Government and Fort lands reserved. The land in dispute in this case is not one of those specifically reserved by the King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428,",
"be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 503. Nothing, it is true, can be claimed.by prescription which owes its origin to, and can only be had by, matter of record; but lapse, of time accompanied by acts done, or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not, of itself, furnish a conclusive bar to the title of the sovereign, agreeably to the maxim, nullum tempus occurrit regi; yet, if the adverse claim .could have a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment, accompanied by the usual acts of ownership. 1 Greenl. Ev. § 45. The principle upon which this doctrine rests is one of general jurisprudence, and is recognized in the Roman law and the codes founded thereon, Best’s Principles of Evidence, § 366, and was, therefore, a feature of the Mexican law at the time of the cession. Finally, the rule of the law of nations, that private property in territory ceded by one nation to another, when held by a title vested before the act of cession, should be respected; the express provisions to that effect contained in the treaty between Mexico and the United States; the evidence of the fact of a grant, legal under the forms of Mexican law, and of a juridical possession given thereunder, and the strong presumption growing out of an exclusive and uninterrupted possession and enjoyment of more than half a century, bring us to concur in the decree of the court below. The objection that the Atlantic and JPacifio Railroad Company, as grantee from the United States, of a part of the tract in question, was a necessary party defendant,'has not been pressed",
"uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceable enjoyment, accompanied by the usual acts of ownership. So, after less than forty years’ possession of a tract of land, and proof of a prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held that the jury were properly instructed to presume that a patent had been duly issued. In regard, however, to crown or public grants, a longer lapse of time has generally been deemed necessary, in order to justify this presumption, than is considered sufficient to authorize the like presumption in the case of grants from private persons.” 32 Stat. 691, § 12. 1 Greenleaf, Evidence (16th Ed.), § 45a. Fletcher v. Fuller, supra, 551; United States v. Chavez, supra, 464; United States v. Chavez, supra, 520. Fletcher v. Fuller, supra, 552; Whitney v. United States, 167 U. S. 529, 546; Jover v. Insular Government, supra, 633. “OPINION BOOK Attorney General’s Department Pages 598-600 Opinion No. 18 Honolulu, T. H., Feb. 11,1905 To His Excellency Geo. R. Carter, Governor of the Territory of Hawaii, Honolulu, T. H. Sra: In answer to your request of December 15th, 1904, for an opinion as to the jurisdiction of the Territory of Hawaii over the various small guano islands to the north-west of Kauai, I would reply as follows: After a careful investigation of the records in the office of the Secretary of the Territory, formerly the Foreign Office, and from other sources of information, I find that the authority of the Territory of Hawaii over these islands is as follows: It appears in the report of J. A. King, Minister of the Interior, dated the 2nd day of June, 1894, to Sanford B. Dole, President of the Republic of Hawaii, that formal possession was taken of Necker Island by the said J. A. King, representing the Republic of Hawaii, on May 22, 1894; it also appears by that report that the government of the Hawaiian Islands had sent Captain John Paty",
"possibility a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 508. Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not of itself furnish a conclusive- bar to the title of the sovereign, agreeably to the maxim, nullum tempus oeeurrid regi; yet if the adverse claim could have had a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment-accompanied by the usual acts of ownership. 1 Green-leaf Ev. § 45. “The principle upon which this doctrine rests is one of general jurisprudence, and is recognized in the Homan law and the codes founded thereon, Best’s Principles of Evidence, § 366, and was, therefore, a feature of the Mexican law at the time of the cession.” The application of these principles to the case at bar does not need many directing words. It is contended by the Government that no juridical possession is shown under the grant to the southern portion of the tract; that there is no grant shown to Sedillo of the northern portion of the tract; that admitting both are shown there is no evidence that the title which Don Diego Borrego received ■ in 1731 was conveyed to Clemente Gutierrez, who was shown to have had the possession claiming title in 1785. To infer all these things, it is argued, is to build presumption on presumption, and carry constructive proof too far. The argument is not formidable. The instances mentioned are of the same kind as those in the cited cases, and the principle of the cases is not limited or satisfied by the presumption"
] |
amend. . The court has recounted the standards applicable to a motion for summary judgment in more detail in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); REDACTED Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards are as follows. Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time,
|
[
"1238 (8th Cir.1990). On the other hand, the Federal Rules of CM Procedure have authorized for nearly 60 years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Wabun-Inini, 900 F.2d at 1238 (quoting Celotex, 477 U.S. at 327, 106 S.Ct. at 2555); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir.1992). The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of CM Procedure states in pertinent part: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon____ The judgment sought 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. Fed.R.Civ.P. 56(b)-(c) (emphasis added); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Reliance Ins. Co. v. Shenandoah S., Inc., 81 F.3d 789, 791 (8th Cir.1996); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S. S. Great Lakes Fleet, Inc., 25 F.3d 707, 708 (8th Cir.1994); Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993); Woodsmith Publ’g Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990); Wabun-Inini, 900 F.2d at 1238 (citing Fed.R.Civ.P. 56(c)). A court considering a motion for summary judgment must view all the facts in the light most"
] |
[
"Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R. Civ. P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Summary Judgment Rule 56. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought 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. Fed. R. Civ. P. 56(b) & (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith",
"parties’ various summary judgment motions. III. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards for present purposes are as follows. A. Requirements Of Rule 56 Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought 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. Fed. R. Civ. P.",
"applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedara6pids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought 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. Fed. R. Civ. P. 56(a)-(c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh",
"who were in attendance at that meeting. When Michael Bush noticed that the document had not been signed by everyone in attendance, he had asked those managers who had not signed the memorandum to do so. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Carp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards for present purposes are as follows. 1. Requirements of Rule 56 Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought 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. FED. R. CIV. P. 56(a)-(c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether",
"Nicholas indicating Kopple’s intention with regard to the letter of intent. Kopple subsequently proposed to waive the representations and warranties and to close the stock purchase in accordance with the terms and conditions of the letter of intent. Schick rejected Kopple’s proposal. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c)Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,",
"to lift more than ten pounds, to stand for extended periods of time, and that her condition was permanent. On July 30, 1997, both Mr. Bushman and Mr. Howe scheduled a meeting with Wheaton, the substance of which is in dispute. Following the meeting, Wheaton was terminated by “Messenger Printing” at the behest of Bob Howe and Larry Bushman. II. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to fed. R. Civ. P. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-32 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A, 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, ansivers 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. fed. R. Cw. P. 56(b) & (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77",
"Sioux City, Iowa, who argued the motions, and by George F. Madsen of Marks, Madsen & Hirschbaeh, also of Sioux City, Iowa. Defendant Cummins South was represented by Christopher L. Bruns of Elderkin & Pirnie, P.L.C., in Cedar Rapids, Iowa, who argued the motions, and by Jay Frank Castle of Holt, Ney, Zatcoff & Wasserman, LLP, of Atlanta, Georgia. Defendant Mayer did not appear for the oral arguments. Following the oral arguments, the court received from the parties supplemental deposition transcripts and citations to pertinent portions of those transcripts. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R.CivP. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stihvill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (ND.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered",
"presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56”), and the court will proceed accordingly. See Skyberg, 5 F.3d at 302 n.2 (where the district court has made the posture of its disposition clear, the appellate court will “treat the case as being in that posture”). This court has considered in some detail the Eighth Circuit standards applicable to motions for summary judgment pursuant to Fed.R.Civ.P. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. #1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought 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 motter of law. Fed.R.Civ.P. 56(b), (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material",
"also property of the State of Iowa.” The Woodbury County Employee Handbook contains a provision that provides that employees convicted of committing criminal acts involving moral turpitude are subject to discipline. At the time of her termination, Walsted had worked for Woodbury County for more than eight years, where she had performed her job duties satisfactorily and demonstrated good work attitude and enthusiasm for her position. Since her termination, Walsted has been employed as a motel housekeeper. 113 FEDERAL SUPPLEMENT, 2d SERIES II. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed.R.Civ.P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff’d in pertinent part, 202 F.3d 1035 (8th Cir.2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff’d, 205 F.3d 1347 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings",
"substantial upturn. Locomotives similar to FURX 7206 are now rent-. ing for $115 a day from First Union. There is a high demand for SD40-2 locomotives at this time, and First Union is not currently storing any SD40-2 locomotives. IC & E “cherry picked” the locomotives it leased from First Union. They were considered premium units. The lease agreement required IC & E to obtain casualty insurance relating to the leased locomo tives. IC & E obtained insurance with a $1,000,000 retention. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may,"
] |
"ERISA preemption, for as we explain, the City does not act as a market participant in offering tax abatements."" (citing Keystone Chapter, Associated Builders & Contractors, Inc. v. Foley , 37 F.3d 945, 955 n.15 (3d Cir. 1994) ). However, other district courts in this circuit, as well as other circuit courts, have applied the exception to insulate a municipality from ERISA's preemptive reach where the municipality acts as a proprietor, rather than a regulator. See Johnson v. Rancho Santiago Cmty. Coll. Dist. , 623 F.3d 1011, 1023 (9th Cir. 2010) (""Because we conclude that the District acted as a market participant, the plaintiffs' ERISA and NLRA preemption claims fail at the threshold.""); REDACTED (citing Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal. , 159 F.3d 1178, 1183 (9th Cir. 1998) ); New Castle Cty. , 144 F.Supp.3d at 639 (""[T]here can be no dispute that the Route 9 Library Project is funded by NCC; therefore, NCC has a proprietary interest in the project.""); Lott Constructors, Inc. v. Camden Cty. Bd. of Chosen Freeholders , No. 93-5636 (JBS), 1994 WL 263851, at *20 (D.N.J. Jan. 31, 1994) (concluding that plaintiffs' ERISA preemption claim failed ""because the challenged state action"
|
[
"Harbor, the state’s actions in Gould could only be understood as an “attempt to compel conformity with the NLRA” that was “unrelated to the employer’s performance of contractual obligations to the State.” Boston Harbor, 113 S.Ct. at 1197. Following the logic of Gould, courts have found preemption when government entities seek to advance general societal goals rather than narrow proprietary interests through the use of their contracting power. Thus attempts by government entities to punish labor and benefits practices they disfavor by withholding contract work have been found preempted by the NLRA and ERISA. See Chamber of Commerce of United States v. Reich, 74 F.3d 1322, 1339 (D.C.Cir.1996) (executive order that barred federal government from contracting with companies that permanently replaced striking workers was preempted by the NLRA); Air Transport Association of America v. City and County of San Francisco, 992 F.Supp. 1149, 1179 (N.D.Ca.1998) (city ordinance barring contracts with employers that did not offer domestic partner benefits to its entire workforce was preempted by ERISA — city admitted that combating discrimination was ordinance’s primary goal and its terms reached well beyond interaction with the city); Van-Go Transport Co., Inc. v. New York City Board of Education, 53 F.Supp.2d 278, 288 (E.D.N.Y.) (policy of refusing to conditionally certify replacement workers that was applied to all of department’s student transport contracts was preempted under NLRA). See also Keystone Chapter Associated Builders and Contractors, Inc. v. Foley, 37 F.3d 945, 955 n. 15 (3d Cir.1994) (noting in dicta that proprietary exception could not save minimum wage rule for state contracts since private parties would not ordinarily embrace a policy that increased the cost of contracting without regard to particular circumstances). Most government contracting decisions do not constitute concealed attempts to regulate, however. In order to function, government entities must have some dealings with the market. While the leverage a state can exert through its spending power and the absence of a true profit motive to restrain government action may create a temptation to take advantage of these interactions to pursue policy goals, the presence of the state in the market cannot automatically"
] |
[
"In general, Congress intends to preempt only state regulation, and not actions a state takes as a market participant. See Bldg. & Constr. Trades Council v. Associated Builders and Contractors of Mass./R.I., Inc. (“Boston Harbor”), 507 U.S. 218, 227, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993); Engine Mfrs., 498 F.3d at 1042. This doctrine applies to claims of NLRA and ERISA preemption. See Boston Harbor, 507 U.S. at 227, 113 S.Ct. 1190 (NLRA); Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal. (“MWD ”), 159 F.3d 1178, 1182 (9th Cir.1998) (ERISA). In assessing the plaintiffs’ preemption claims, we therefore must first determine whether the District acted as a regulator or as a market participant when it entered into the PSA. Because we conclude that the District acted as a market participant, the plaintiffs’ ERISA and NLRA preemption claims fail at the threshold. In general, state action falls within the market participant exception to preemption when the state entity directly participates in the market by purchasing goods or services. See Engine Mfrs., 498 F.3d at 1040 (describing the “single inquiry” in market participant cases as “whether the challenged program constituted direct state participation in the market”). But the line between non-preempted market participation and preempted regulation is not always so clear, and a state’s direct participation in the market will not always escape preemption. If a state’s direct participation in the market is “tantamount to regulation,” the market participant doctrine will not exempt the state’s action from preemption. Wis. Dep’t of Indus., Labor & Human Relations v. Gould, 475 U.S. 282, 289, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986). Thus, in Gould, the Supreme Court held that the NLRA preempted a state law forbidding state procurement agents from using state funds to do business with companies that had repeatedly violated the NLRA, even though the law constrained only the state’s own participation in the market. Id. at 283-84, 287, 106 S.Ct. 1057. The Court explained that the state law “on its face ... serves plainly as a means of enforcing the NLRA,” and that “[n]o other purpose could",
"likewise found the market participant exception inapplicable in comparable instances where a municipality's participation in a market effected concurrent regulation of pri vale parties in that market. See, e.g. Waste Mgmt. Holdgs., Inc. v. Gilmore, 252 F.3d 316, 345 (4th Cir.2001) (finding that Virginia “was not acting as a private participant in the waste disposal market” by regulating the conduct of others in that market) (citation omitted); USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272, 1282 (2d Cir.1995) (\"[S]tates and local governments do not enjoy carte blanche to regulate a market simply because they also participate in that market.”). . Although this line of cases involves preemption analysis under the NLRA and other federal statutes, the Supreme Court’s discussion of the market participant exception in this context relies upon and conforms with its dormant Commerce Clause jurisprudence, and is instructive. See, e.g., Engine Mfrs. Ass'n v. So. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir.2007) (\"After the development of the market participant doctrine in [] dormant Commerce Clause cases, the Supreme Court ... [has] applied the doctrine to protect proprietary state action from preemption by various federal statutes.”); Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Tx., 180 F.3d 686, 691 (5th Cir.1999) (noting that the market participant exception originating in dormant Commerce Clause analysis \"has been recognized in preemption cases”); Metro. Taxicab Bd. of Trade v. City of New York, No. 08 Civ. 7837, 2008 WL 4866021, at *7 (S.D.N.Y. Oct. 31, 2008) (\"The market participant doctrine is an extension of a principle from the Commerce Clause ... and has been extended to preemption jurisprudence”) (citing Alexandria Scrap, 426 U.S. at 810, 96 S.Ct. 2488). . In Boston Harbor, the Supreme Court found that the NLRA did not preempt a bid specification by a Massachusetts agency requiring bidders to abide by a certain labor agreement because the government was acting as a market participant, rather than regulating labor-management relations. 507 U.S. at 229, 113 S.Ct. 1190 (explaining .that preemption doctrines apply only to state regulation). The Court emphasized that the cleanup project",
"Inc. v. Camden Cty. Bd. of Chosen Freeholders, 1994 WL 263851, at *11-12 (D.N.J. Jan. 31, 1994), that the crucial factor is whether the Code requirements apply to every construction project in NCC or only to NCC’s own projects. The Code applies only to NCC’s own projects and, therefore, is sufficiently tailored to NCC’s proprietary interest. I also agree with the reasoning of the Sixth Circuit in Michigan DOL, to wit, even if a disputed State or local law mandates various apprenticeship conditions for bidding, preemption is not appropriate unless those mandates fall within the area that Congress intended ERISA to control exclusively. In this regard, there is no indication of record that contradicts the logic applied in Michigan DOL, that is: (1) States have long regulated apprenticeship standards and training; (2) ERISA has nothing to say about the standards to be applied to apprenticeship training programs; and (3) what triggers ERISA’s potential application to such laws is not the existence of an apprenticeship training program, but the existence of a separate fund to support the training program and the related reporting, disclosure, and fiduciary responsibilities associated therewith. See 543 F.3d at 282. Given that the Code applies to ERISA and non-ERISA plans alike, and has no directive related to the funding sources of any apprenticeship program, I conclude that plaintiff has not met its burden to demonstrate its likelihood of success on the preemption issue. C. Irreparable Harm Plaintiff argues that, in the absence of injunctive relief, its members will be irreparably harmed because they “could lose work as well as the opportunity to meaningfully compete for contracts,” and this type of injury cannot be compensated by money damages. {See D.I. 15 at 10) Defendants reason that the Code simply provides incentives to participate in an apprenticeship program, and has done so since 2007; the fact that plaintiffs members choose not to participate in such programs cannot equate to irreparable harm. Plaintiffs position is not an unreasonable one, in light of the fact that not all trades have available State-approved training programs. Nevertheless, plaintiffs argument is based more on",
"a state or municipality takes in a proprietary capacity' — actions similar to those a private entity might take' — and actions a state or municipality takes that are attempts to regulate. The former type of action is not subject to preemption while the latter is. For example, in Building & Trades Council v. Associated Builders, 507 U.S. 218, 226, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993), the Supreme Court held that a labor contract was not preempted by the National Labor Relations Act because it was not “government regulation” but rather “constitute^] proprietary conduct.” Id. at 232, 113 S.Ct. at 1199. More recently, in Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Texas, 180 F.3d 686 (5th Cir.1999), we considered whether a municipal ordinance and a contract entered into pursuant to that ordinance were preempted as “law[s], regulation[s], or other provision[s] having the force and effect of law.” Id. at 691. Analyzing the contract and the ordinance in the same manner, we held that neither was preempted because both were valid exercises of proprietary power rather than impermissible attempts to regulate. See id. at 693-94; see also Associated Gen. Contractors of America v. Metropolitan Water Dist. of S. Cal., 159 F.3d 1178, 1182-83 (9th Cir.1998) (holding that labor contracts between a state entity and private groups were not “laws” because they were not efforts to regulate but rather “reflect[ed] an owner’s desire to contractually assure peace and prosperity on particular projects”). Thus, the critical inquiry here is whether the use agreements represent a valid exercise of the cities’ proprietary powers. This question is easily resolved. The use agreements are essentially coextensive with the Ordinance, indicating in their breadth an intent to achieve everything achieved by the Ordinance. Cf. Cardinal Towing, 180 F.3d at 694 (looking to the scope of the contract and the activity it covered to determine whether it represented an attempt to regulate). They were enacted to effect the Ordinance, and the most recent version of the agreements directly links the airlines’ obligations to the terms of the Ordinance: “Airline agrees that it shall conduct",
"BIE-CA concedes, “[a]n inept proprietor is still a proprietor.” Appellant Br. at 46. The allegation, even if true, does not demonstrate that the City was regulating. We find persuasive the Ninth Circuit’s reasoning in Rancho Santiago, a similar case in which nonunion contractors challenged a pre-hire construction labor agreement: The plaintiffs further contend that the [PLA] does not advance an interest in efficient procurement because it presents several downside risks while offering no benefits in terms of costs, labor availability, or timeliness for the construction. Whether the [PLA’s] benefits outweighed its costs, however, bears only on whether the District made a good business decision, not on whether it was pursuing regulatory, as opposed to proprietary, goals. We must keep in mind that congressional intent is the touchstone of our preemption analysis, Engine Mfrs., 498 F.3d at 1040, and we have no reason to think that Congress intended to allow beneficial state contracts while preempting similar contracts in which the state got a bad deal. 623 F.3d at 1025. It bears repeating that BIECA’s theory of the case is preemption: that the PLAs are not contracts but regulations and therefore are preempted by the NLRA. It is hard to see why, even if political favoritism was a motivating factor in the City’s decision to contract with particular contractors or unions, the PLAs would be thereby transformed from contracts into regulations. See Rancho Santiago, 623 F.3d at 1026 (“Plaintiffs contend that the [PLA]’s primary purpose was to reward the unions that supported the Measure E campaign.... [W]e are quite certain that Congress did not intend for the NLRA’s or ERISA’s preemptive scope to turn on state officials’ subjective reasons for adopting a regulation or agreement.”). CONCLUSION “In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction.” Boston Harbor, 507 U.S. at 231-32, 113 S.Ct. 1190. The PLAs challenged here represent the City’s permissible proprietary choice; the City has behaved",
"a market participant and escapes preemption review. But if the funding condition does not serve, or sweeps more broadly than a government agency’s proprietary economic interest, it must submit to review under [in this case] labor law preemption standards. Id. at 216 (citation omitted). I acknowledge that the First Circuit’s analysis in Quincy is on all fours with the facts of record, as far as it goes. The Court in Quincy, however, did not address either the market participation theory (because the defendant in Quincy failed to raise it below, see 759 F.3d at 131) or the second prong of the Michigan DOL preemption test, that is, whether the mandatory language at issue fell “within the area that Congress intended ERISA to control exclusively,” 543 F.3d at 281. With respect to the former, under Sage’s two-step test, there can be no dispute that the Route 9 Library Project is funded by NCC; therefore, NCC has a proprietary interest in the project. As to the “specifically tailored” requirement, I agree with the reasoning in Lott Constructors, Inc. v. Camden Cty. Bd. of Chosen Freeholders, 1994 WL 263851, at *11-12 (D.N.J. Jan. 31, 1994), that the crucial factor is whether the Code requirements apply to every construction project in NCC or only to NCC’s own projects. The Code applies only to NCC’s own projects and, therefore, is sufficiently tailored to NCC’s proprietary interest. I also agree with the reasoning of the Sixth Circuit in Michigan DOL, to wit, even if a disputed State or local law mandates various apprenticeship conditions for bidding, preemption is not appropriate unless those mandates fall within the area that Congress intended ERISA to control exclusively. In this regard, there is no indication of record that contradicts the logic applied in Michigan DOL, that is: (1) States have long regulated apprenticeship standards and training; (2) ERISA has nothing to say about the standards to be applied to apprenticeship training programs; and (3) what triggers ERISA’s potential application to such laws is not the existence of an apprenticeship training program, but the existence of a separate fund to support",
"goal and its terms reached well beyond interaction with the city); Van-Go Transport Co., Inc. v. New York City Board of Education, 53 F.Supp.2d 278, 288 (E.D.N.Y.) (policy of refusing to conditionally certify replacement workers that was applied to all of department’s student transport contracts was preempted under NLRA). See also Keystone Chapter Associated Builders and Contractors, Inc. v. Foley, 37 F.3d 945, 955 n. 15 (3d Cir.1994) (noting in dicta that proprietary exception could not save minimum wage rule for state contracts since private parties would not ordinarily embrace a policy that increased the cost of contracting without regard to particular circumstances). Most government contracting decisions do not constitute concealed attempts to regulate, however. In order to function, government entities must have some dealings with the market. While the leverage a state can exert through its spending power and the absence of a true profit motive to restrain government action may create a temptation to take advantage of these interactions to pursue policy goals, the presence of the state in the market cannot automatically be assumed to be motivated by a regulatory impulse. Given the volume of, and obvious need for, interaction between the government and the private sector, the application of preemption in a manner that hobbles state and local governments’ purchasing efforts threatens severe disruption. Boston Harbor recognized this reality. In Boston Harbor, the Court confronted a situation in which a state agency was under a judicial order to complete a project within a set time frame. To prevent time-consuming work stoppages, the agency agreed to employ a union workforce in exchange for a no-strike guarantee. The Court distinguished Gould and found that such proprietary action was not subject to preemption by the NLRB. It found that the agency had focused on the government’s own interests — uninterrupted completion to assure compliance with the court order — and had done so by striking the type of labor bargain a private company might have sought in similar circumstances. In contrast to the state’s admitted desire to encourage labor compliance as a general matter in Gould, the agency was",
"the case is preemption: that the PLAs are not contracts but regulations and therefore are preempted by the NLRA. It is hard to see why, even if political favoritism was a motivating factor in the City’s decision to contract with particular contractors or unions, the PLAs would be thereby transformed from contracts into regulations. See Rancho Santiago, 623 F.3d at 1026 (“Plaintiffs contend that the [PLA]’s primary purpose was to reward the unions that supported the Measure E campaign.... [W]e are quite certain that Congress did not intend for the NLRA’s or ERISA’s preemptive scope to turn on state officials’ subjective reasons for adopting a regulation or agreement.”). CONCLUSION “In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction.” Boston Harbor, 507 U.S. at 231-32, 113 S.Ct. 1190. The PLAs challenged here represent the City’s permissible proprietary choice; the City has behaved just as any other major landowner or developer might to secure labor for many of its construction projects. Because the PLAs are market activity and not regulation, the preemption claim must fail. The judgment of the district court is therefore AFFIRMED. . Since BIECA and UECA make essentially the same arguments, in the interests of simplicity we henceforth refer to the plaintiffs-appellants collectively as BIECA, except where it is necessary to distinguish particular arguments made on behalf of UECA. . BIECA’s argument that the City PLAs are not \"narrow” because they cover many projects spanning several years misunderstands the relevant meaning of \"narrow” or \"tailored\" in this context. A contract is \"specifically tailored to one particular job” within the meaning of Boston Harbor, 507 U.S. at 232, 113 S.Ct. 1190, if it governs the parties' behavior on the specific project or projects in the contract rather than on unrelated matters to which the state might not even be a party. Extracontractual effect is an indicator of regulatory rather than proprietary intent, so a provision that",
"at hand, or seek business from purchasers whose perceived needs do not include a project labor agreement. In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction. Id. at 231-32, 113 S.Ct. 1190. The Third Circuit, in Hotel Employees & Restaurant Employees Union v. Sage Hospitality Resources, LLC, 390 F.3d 206 (3d Cir.2004) (“Sage”), expanded on the above principle and articulated a two-step test for determining whether a government’s condition of funding constitutes market participation that falls within the Boston Harbor exception to preemption review: First, does the challenged funding condition service to advance or preserve the state’s proprietary interest in a project or transaction, as an investor, owner, or financier? Second, is the scope of the funding condition “specifically tailored” to the propriétary interest? ... If a condition of procurement satisfies these two steps, then it reflects the government’s action as a market participant and escapes preemption review. But if the funding condition does not serve, or sweeps more broadly than a government agency’s proprietary economic interest, it must submit to review under [in this case] labor law preemption standards. Id. at 216 (citation omitted). I acknowledge that the First Circuit’s analysis in Quincy is on all fours with the facts of record, as far as it goes. The Court in Quincy, however, did not address either the market participation theory (because the defendant in Quincy failed to raise it below, see 759 F.3d at 131) or the second prong of the Michigan DOL preemption test, that is, whether the mandatory language at issue fell “within the area that Congress intended ERISA to control exclusively,” 543 F.3d at 281. With respect to the former, under Sage’s two-step test, there can be no dispute that the Route 9 Library Project is funded by NCC; therefore, NCC has a proprietary interest in the project. As to the “specifically tailored” requirement, I agree with the reasoning in Lott Constructors,"
] |
that counsel misjudged the admissibility of the confession. The second claim upon which petitioner seeks relief is the sufficiency of the evidence presented at the second degree-of-guilt trial to support a finding of murder in the first degree. Petitioner cites several Pennsylvania state court decisions which establish standards for sufficiency of evidence to sustain a conviction. We do not believe that petitioner’s cases are on point, however. Allegations of insufficient evidence in a state court trial are generally not reviewable by writ of habeas corpus. Young v. State of Ala., 443 F.2d 854 [5th Cir. 1971] ; Freeman v. Stone, 444 F.2d 113 [9th Cir. 1971]; United States ex rel Cook v. Cliff, 341 F.Supp. 1038 [E.D.Pa.1972]; REDACTED d 1211 [3rd Cir. 1972]. Only where a conviction has no evidentiary basis or is based on a gross insufficiency of evidence is it subject to collateral attack in the federal courts. Freeman v. Stone, cit. supra, and cases cited therein; United States ex rel Spears v. Rundle, 268 F. Supp. 691, 700 [E.D.Pa.1967], aff’d, 405 F.2d 1037 [3rd Cir. 1969]. We find that some evidence was presented at the second degree-of-guilt trial from which the inference of a robbery-murder might properly be drawn. See Commonwealth v. Marsh, 448 Pa. 292, 296, 293 A.2d 57, 60 [1972] where the sufficiency of the evidence to support the first degree finding is discussed. Petitioner’s final claim is that the failure of
|
[
"resulted in the inconsistencies. We are not insensitive to the anxiety suffered by relator while awaiting trial in a capital case. However, considering the record as a whole, considering the length of the delay involved, the procedural chronology of the case, its complexity, and all the attendant circumstances, the Commonwealth acted as expeditiously as could reasonably be expected. Relator all during this time was represented by skilled and experienced counsel who competently and thoroughly explored every avenue of defense available to relator. There was no loss or destruction of evidence in this ease as appears in others which would have impaired relator’s ability to present an adequate defense. Considering the anxiety suffered by relator and the alleged prejudicial effects of the delays, when balanced against the reasons for the delays, their source, and the rights of public justice, the balance, we believe, is weighed against relator. We therefore, reject relator’s contention that he was denied the constitutional right to a speedy trial. Relator’s contention that the evidence was insufficient to sustain a conviction is without merit. A Federal Court may overturn a State conviction only where there is no evidence to support the verdict. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). When the record establishes a basis for the conviction, it is not our province to review the sufficiency of the evidence or to substitute our judgment for that of the jury. United States ex rel. Cunningham v. Maroney, 397 F.2d 724 (3rd Cir. 1968), cert. denied 393 U.S. 1045, 89 S.Ct. 663, 21 L.Ed.2d 594 (1969). Without more, there is testimony in the record which demonstrates relator’s direct participation in the rape of Natalie Tuchar and aiding and abetting his co-defendants during the course of the crimes committed. The evidence also is sufficient to meet the requirements of the Pennsylvania Felony Murder Rule, Commonwealth v. Batley, 436 Pa. 377, 260 A.2d 793 (1970); Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962) cert. denied 371 U.S. 851, 83 S.Ct. 93, 9 L.Ed. 2d 87 (1963). We find relator’s remaining"
] |
[
"that the evidence, as presented, was insufficient to support the verdict of first degree murder. This court follows established procedures which make it clear that an inquiry into the sufficiency of the evidence is not within the proper functions of a federal court when reviewing a state conviction by way of habeas corpus. Our inquiry, based upon the records before the court, is one which only considers whether there was any evidence to support the verdict, not the sufficiency of such evidence. The district court in United States ex rel. Simmons v. Commonwealth of Pa., 292 F.Supp 830, 833 (1968) said: * * * [T]he cases have held that federal jurisdiction is established only when the petitioner has alleged that there was a total absence of evidence to support a guilty verdict. See, e. g. Deham v. Decker, 361 F.2d 477 (C.A. 5, 1966), and Edmondson v. Warden, Maryland Penitentiary, 335 F.2d 608, 609 (C.A. 4, 1964). To permit a federal court acting upon a petition for a writ of habeas corpus to inquire further than this into allegations challenging the sufficiency of the evidence presented at the state criminal trial, would be to improperly convert the federal court into a substitute for a state appellate court. See, e. g. United States ex rel. Bower v. Banmiller, 232 F.Supp. 627, 628-629 (E.D.Pa., 1964). This court has followed this procedure in Wheeler v. Peyton, 287 F.Supp. 930, 931 (W.D.Va., 1968) and Cooper v. Peyton, 295 F.Supp. 21, 23 (W.D.Va., 1968). Also, the Fourth Circuit Court of Appeals in Grundler v. North Carolina, 283 F.2d 798, 802 (1960) expressed a similar concept. * * * [Njormally, the admissibility of evidence, the sufficiency of evidence, and instructions to the jury in state trials, are matters of state law and procedure not involving federal constitutional issues. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented. The role of a federal habeas corpus is not to serve as an additional appeal. In light of the above, the court concludes that the record amply demonstrates that",
"that Petitioner was guilty of first degree murder beyond a reasonable doubt. Petitioner next asserts that the evidence presented at trial was insufficient to support his convictions for robbery and murder nor was it sufficient to sustain the jury’s finding of the sole aggravating circumstance (i.e. murder in the course of robbery) supporting the death penalty. A claim of insufficiency of the evidence places a very heavy burden on the party seeking to challenge a verdict. United States v. Cooper, 121 F.3d 130, 133 (3rd Cir.1997). In evaluating the sufficiency of the evidence to sustain a conviction, the evidence at trial is considered in the light most favorable to the government. U.S. v. Veksler, 62 F.3d 544, 551 (3rd Cir.1995). It is not for a reviewing court to weigh the evidence or to determine the credibility of witnesses; the verdict of a jury must be sustained if there is substantial evidence to support it. U.S. v. Schramm, 75 F.3d 156, 159 (3rd Cir.1996), quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). A verdict will only be overturned if no reasonable juror could accept the conclusion of the defendant’s guilt beyond a reasonable doubt. Id. In application of the foregoing to the case at hand, we find that, in light of the instances of prosecuto-rial misconduct, trial counsel ineffectiveness and trial error, we cannot now find from the evidence properly admitted of record that the jury’s findings that Petitioner was guilty of the robbery of John Smith and of murdering him in the course of that robbery are supported by sufficient evidence. So saying, we would grant Petitioner habeas relief on this ground also. 7. Petitioner is entitled to habeas relief because the Commonwealth failed to provide his counsel with exculpatory material under Brady v. Maryland, failed to give adequate notice of its intention to seek the death penalty and because the death penalty was not proportionate in this case. Petitioner finally argues that his constitutional rights were violated entitling him to the issuance of a writ of habeas corpus by virtue",
"be considered in a federal habeas corpus proceeding by a state prisoner. Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972); Sinclair v. Turner, 447 F.2d 1158 (10th Cir. 1971), cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); United States ex rel. Cunningham v. Maroney, 397 F.2d 724 (3d Cir. 1968), cert. denied, 393 U.S. 1045, 89 S.Ct. 663, 21 L.Ed.2d 594 (1969). Only where the charge against a defendant is totally devoid of evidentiary support is his conviction unconstitutional under the due process clause of the fourteenth amendment. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Consequently, federal habeas relief under § 2254 is available to the state prisoner on the ground of insufficiency of the evidence only if there is no evidence whatever supporting conviction. It is also fundamental that federal courts possess only limited authority to consider state court evidentiary rulings in a habeas proceeding by a state prisoner. As Judge Webster, now a member of this court, observed in Parker v. Swenson, 332 F.Supp. 1225, 1229 (E.D.Mo.1971), aff’d, 459 F.2d 164 (8th Cir. 1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 943, 35 L.Ed.2d 258 (1973): This court will not review the wisdom of evidence rulings on petition of writ of habeas corpus. It will limit the scope of its inquiry to an examination of whether federally guaranteed rights have been violated. [Citations omitted.] Only where admission of evidence is so prejudicial as to constitute a denial of due process will federal courts intervene in state proceedings on petition for writ of habeas corpus. [Citations omitted.] Introduction at trial of evidence of prior crimes is a matter of state evidentiary law and thus will ordinarily not be subject to review in federal habeas corpus proceedings. The thrust of petitioner’s attack upon the sufficiency of the evidence is that no witness placed him at the scene of the Algona robbery and murder. Petitioner therefore asserts that there was no evidence, either direct or",
"only-attempt at collateral attack in the state court has been his petition for a writ of habeas corpus in the forum of his custody rather than through the post-conviction statute in the forum of his sentence. We think this interpretation a sound one and avoids any unnecessary collision with the questionable dicta found in State v. Reichel, supra. Judge Urbom has written an authoritative and soundly reasoned opinion rejecting the petitioner’s jurisdictional claim. We adopt his reasoning and affirm the denial to this claim. See Robinson v. Wolff, 349 F.Supp. 514 (D.C.Neb.1972). We likewise reaffirm his finding that the state record was not void of sufficient evidence to convict the petitioner of the first degree murder as charged. No. 72-1390 Subsequent to the district court’s dismissal, petitioner filed another habeas corpus petition. In this petition Robinson alleges that he is claiming a broader basis of attack than he argued in his original petition. He now asserts that there was insufficient evidence proved to sustain a conviction for any crime and that the trial court erred in failing to sustain a motion for acquittal. Judge Urbom dismissed this petition as being premised on the same ground raised in the first petition. In disposing of the claim in his first opinion the district judge limited his discussion to whether there was sufficient poof of premeditation to sustain a conviction of first degree murder. The court’s finding that there was sufficient proof to sustain a conviction for first degree murder adequately covers the alleged new ground of the second complaint. We do not understand Thompson v. The City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), relied upon by the petitioner, to justify federal review of a state court record to ascertain whether there exists sufficient evidence to make a prima facie case for a jury. The question of sufficiency of evidence depends upon state law and not the federal constitution. See Faust v. State of North Carolina, 307 F.2d 869 (4 Cir. 1962). The principle announced in the Thompson decision relates to a ease where the record is",
"a challenge to the sufficiency of the evidence to support a conviction are well established. We are to view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Maldonado-Rivera, 922 F.2d 934, 978 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991); United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983), and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, see United States v. Skowronski, 968 F.2d 242, 247 (2d Cir.1992); United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). A conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. See United States v. Parker, 903 F.2d 91, 97 (2d Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990). Any lack of corroboration goes to the weight of the evidence, not to its sufficiency, and a challenge to the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal. See United States v. Skowronski, 968 F.2d at 247; United States v. Parker, 903 F.2d at 97; United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). Thus, the defendant who makes a sufficiency challenge bears a heavy burden. Gordon has not carried that burden with respect to either the conspiracy count or the substantive counts. In",
"erroneously or incorrectly.” Id. at 1522(Scalia, J. concurring). III. DISCUSSION I. Petitioner was denied due process of law by the denial of his motion for directed verdict on the charge of first degree murder and his conviction of second degree murder based on insufficient evidence. Petitioner first claims that there was insufficient evidence of premeditation and deliberation to submit the original first degree murder charge to the jury. Petitioner alleges that the trial court therefore erred in denying his motion for directed verdict. Petitioner further alleges that there was insufficient evidence to convict him of the crime of second degree murder. A. Standard of Review. A habeas court, “reviews claims that the evidence at trial was insufficient for a conviction by asking ‘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.’ ” Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir.2000); cert. den. 531 U.S. 1021, 121 S.Ct. 588, 148 L.Ed.2d 503 (2000) (citing to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, this Court must determine whether the state court’s application of the Jackson standard was reasonable. Matthews v. Abramajtys, 92 F.Supp.2d 615, 632 (E.D.Mich.2000) (citations omitted). B. The individual claims. 1.The failure to direct a verdict on the first degree murder charge. Petitioner first claims that the trial court erred in denying his motion for a directed verdict and permitting the first degree murder charge to be submitted to the jury for their consideration. However, petitioner was convicted at trial of the lesser included offense of second degree murder and therefore acquitted of the higher first degree murder charge. The submission to a jury of a criminal charge constitutes harmless error where the habeas petitioner is acquitted of that charge. Daniels v. Burke, 83 F.3d 760, 765 fn. 4 (6th Cir.1996) (internal citations omitted). ■ Moreover, there was sufficient evidence of premeditation and deliberation to",
"implicate a federal constitutional right and is not subject to review in a habeas proceeding. See Schacks v. Tessmer, No. 00-1062, 2001 WL 523533, *6 (6th Cir. May 8, 2001) (unpublished) (refusing to review state court determination that second-degree murder conviction rendered bind-over sufficiency of the evidence challenge moot). Habeas relief is not warranted on this claim. E. Prosecutorial Misconduct/Admission of Alias Testimony Petitioner next asserts that he is entitled to habeas relief because the prosecutor erred by introducing evidence that Petitioner used an alias while living in Florida after fleeing Michigan. The United States Supreme Court has stated that prosecutors must “refrain from improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor’s remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). When addressing a claims of prosecutorial misconduct, the court must first determine whether the challenged statements were indeed improper. See United States v. Francis, 170 F.3d 546, 549 (6th Cir.1999). Upon a finding of such impropriety, the court must then “look to see if they were flagrant and warrant reversal.” Id. Flagrancy is determined by an examination of four factors: 1) whether the statements tended to mislead the jury or prejudice the accused; 2) whether the statements were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the total strength of the evidence against the accused. See Boyle v. Million, 201 F.3d 711, 717 (6th Cir.2000) (citing Francis, 170 F.3d at 549-50); Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.1997). “[T]o constitute the denial of a fair trial, prosecutorial misconduct must be ‘so pronounced and persistent that it permeates the entire atmosphere of the trial,’ or ‘so gross as probably to prejudice the defendant.’” Pritchett, 117 F.3d at 964 (citations omitted). In",
"“cause and prejudice” for his default and, thus, the claim is procedurally barred. However, to complete the record, on the merits, the claim is denied. The petitioner argues that “[a] review of the trial transcript would reveal that there was an insufficient quantum of evidence to support Mr. Rustici’s conviction on” the charge of Second Degree Murder on a theory of depraved indifference to human life. As with other grounds for relief raised in this petition, a petitioner who challenges the sufficiency of the evidence supporting his conviction “bears a heavy burden.” United States v. Griffith, 284 F.3d 338, 348 (2d Cir.2002) (citing United States v. Velasquez, 271 F.3d 364, 370 (2d Cir.2001)). To obtain habeas corpus relief, the Court must find that, when viewing the evidence most favorably to the prosecution, no rational trier of fact could find guilt beyond a reasonable doubt. Farrington v. Senkowski 214 F.3d 237, 240-41 (2d Cir.2000) (citing Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In addition, the Court must defer to the jury’s determination of the weight given to conflicting evidence, witness credibility, and inferences drawn from the evidence. United States v. Vasquez, 267 F.3d 79, 90-91 (2d Cir.2001) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Payton, 159 F.3d 49, 56 (2d Cir.1998)). A guilty verdict may not be disturbed if the jury has resolved these issues in a reasonable manner. See id. The Court’s “inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). A federal habeas court must “credit every inference that could have been drawn in the state’s favor ... whether the evidence being reviewed is direct or circumstantial.” Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.1988). Applying the above standard, the Court finds that the evidence amply supports the petitioner’s Second Degree Murder conviction. As",
"Apparently for this reason, a copy of the charge is not part of the record before this Court. . Allen v. Perini, 424 F.2d 134, 138 (6th Cir., 1970) ; accord, United States ex rel. Gallagher v. Brierley, 286 F.Supp. 773, 774 (E.D.Pa.1968). See also, Hawkins v. Bennett, 423 F.2d 948, 951 (8th Cir. 1970). That the burden of sustaining the admissibility of challenged evidence lies with the Government once the primary illegality has been established at a suppression hearing or trial, see, 3 G. Wright, Federal Practice and Procedure, Criminal § 677 at 138 (1969), is not significant here, since the isue in a habeas corpus case is- not whether the evidence passes muster when measured against the appropriate evidentiary rule. Habeas corpus in the federal courts is a remedy grounded on a federal statute, 28 U.S.C. § 2254 (Supp. V 1970), for relief from violations of the Constitution of the United States. Some federal courts look to state law to determine the party who must carry the burden. See e. g., Webb v. Beto, 415 F.2d 433, 436 (5th Cir. 1969), cert, denied, 396 U.S. 1019, 90 S.Ct. 587, 24 L.Ed.2d 511 (1970). However, even if Pennsylvania law does control such aspect of this federal habeas corpus action, Pennsylvania also places the burden of proof on the habeas petitioner. Commonwealth ex rel. Harbold v. Myers, 427 Pa. 117, 233 A.2d 261 (1967) (because Escobedo is not retroactive, a prisoner alleging coercion must demonstrate confessions were involuntary) ; Commonwealth ex rel. Storeh v. Maroney, 416 Pa. 55, 204 A.2d 263 (1964) (petitioner must show violation of constitutional rights). Also, the burden of proof does not shift merely because the petitioner is challenging the voluntariness of his confession. United States ex rel. Sabella v. Follette, 432 F.2d 572, 575 (2d Cir. 1970) ; Jones v. Russell, 396 F.2d 797 (6th Cir. 1968). . Counsel for petitioner has cited to us footnote 8 of WMteley, supra, which states that “an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the af-fiant when he sought the warrant but not",
"AINSWORTH, Circuit Judge: Appellant, an Alabama state prisoner, appeals from the District Court’s denial of habeas relief to set aside a 1966 conviction for second-degree murder. This is the second time the matter is before us. Following an unsuccessful appeal by Young to the Alabama Supreme Court, Young v. State, 283 Ala. 676, 220 So.2d 843 (1969), which considered and rejected all of the claims which appellant presents here, he sought habeas relief in the District Court which denied the writ. We remanded for considera-' tion on the merits because of the District Court’s erroneous conclusion that appellant had not exhausted his state remedies. Young v. State of Alabama, 5 Cir., 1970, 427 F.2d 177. On remand the District Court conducted a hearing and denied the relief sought. We affirm. In his habeas petition, appellant asserted as grounds for his release the following: 1. Improper jury instructions; 2. Insufficiency of the evidence; and 3. Unconstitutionality of an Alabama state statute [Title 30, Section 97(1) (1958)] under which the jury was allowed to separate and disperse overnight during the course of his trial. In denying the writ, the District Court made no findings relative to the first two claims asserted by petitioner. Young, on appeal, reasserts all of the alleged violations and additionally contends that the court erred in failing to make findings of fact on the issues of improper jury instructions and insufficiency of the evidence. Unless there is a clear showing that the errors complained of were so gross or the trial was so fundamentally unfair, habeas corpus will not lie to set aside a conviction on the basis of improper instructions, McDonald v. Sheriff of Palm Beach County, Florida, 5 Cir., 1970, 422 F.2d 839; Murphy v. Beto, 5 Cir., 1969, 416 F.2d 98; Gomez v. Beto, 5 Cir., 1968, 402 F.2d 766. Nor is alleged insufficiency of evidence reviewable by habeas corpus in federal courts. Summerville v. Cook, 5 Cir., 1971, 438 F.2d 1196; Fulford v. Dutton, 5 Cir., 1967, 380 F.2d 16. These alleged violations were presented to the Alabama Supreme Court and found to be"
] |
not be imposed on a municipality under § 1983. Id. at 691-92, 98 S.Ct. at 2036. The Supreme Court did not address directly whether a private corporate employer may be held liable under § 1983 on a respondeat superior theory. But numerous lower courts, including the Fourth Circuit, have understandably relied on Monell in holding that a corporate employer may not be made vicariously liable under § 1983. See Iskander v. Village of Forest Park, 690 F.2d 126, 130 (7th Cir.1982) (private store not vicariously liable under § 1983 for acts of its employees); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (same); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir.1974) (same); REDACTED Nor is there any doubt that this sensible principle applies where, as here, the corporate employer is a hospital. See Temple v. Albert, 719 F.Supp. 265, 268 (S.D.N.Y.1989) (private hospital not vicariously liable under § 1983 for acts of its employees); Mitchell, 756 F.Supp. at 249 n. 9 (same). The record at bar shows that no actions by “employees” of the Hospital are alleged to have violated plaintiffs rights. Defendant Mathis is associated by contract with the Haymarket Correctional Facility, not with Prince William Hospital; the physicians who treated Mcllwain at the Hospital were private contractors, not employees of the Hospital. Even putting this aside, however, the factual record shows that the Hospital had no policy requiring the testing of
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[
"were “reasonable grounds to believe” that the offense was being committed. The statute relied on is not sufficient to bridge the gap between private and State action. Security employees are not thereby made State officers nor are they granted the authority to detain suspected shoplifters. Rather, the statute permits the assertion of a defense to certain causes of action founded upon State law. This “shopkeepers’ privilege” is insufficient to transform defendants’ conduct into acts under color of State law and to vest a federal court with jurisdiction over the subject matter. See Battle v. Dayton-Hudson Corp., 399 F.Supp. 900 (D.Minn.1975); Weyandt v. Mason’s Stores, Inc., 279 F.Supp. 283 (W.D.Pa.1968). Plaintiffs have failed to allege concerted activity with State officials which might make the security officers liable if they had been “willful participant^] in joint activity with the State or its agents,” United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). With respect to defendant Gimbels, the action is also dismissed on the ground that vicarious liability may not be imposed under § 1983. Draeger v. Grand Central, Inc., 504 F.2d 142 (10 Cir. 1974). Accordingly, defendants’ motion to dismiss the complaint is granted. SO ORDERED. . Jurisdiction is said to be conferred under 28 U.S.C. § 1343. All parties being residents of New York, there is no diversity jurisdiction under 28 U.S.C. § 1332. . DeCarlo v. Joseph Horne & Co., 251 F.Supp. 935 (W.D.Pa.1966), is not to the contrary. There the district court held that a State statute granted a store detective authority to make a legal arrest, not present at common law."
] |
[
"the Supreme Court has not directly said whether Monell applies to private corporations, and there are powerful reasons to say no. Yet we and all other circuits that have considered the question have said yes. Why? It’s not easy to say. Our opinion in Iskander and virtually all of the circuit opinions after Monell simply cite one or more prior cases that all seem to trace back to the terse Fourth Circuit opinion in Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir.1982). The relevant portion of that opinion said in full: In Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipal corporation cannot be saddled with section 1983 liability via respondeat superior alone. We see this holding as equally applicable to the liability of private corporations. Two aspects of Monell exact this conclusion. The Court found section 1983 evincing a Congressional intention to exclude the imposition of vicarious answerability. For a third party to be' liable the statute demands of the plaintiff proof that the former “caused” the deprivation of his Federal rights. 436 U.S. at 691-92, 98 S.Ct. 2018. Continuing, the Court observed that the policy considerations underpinning the doctrine of respondeat superior insufficient to warrant integration of that doctrine into the statute. Id. at 694, 98 S.Ct. 2018. No element of the Court’s ratio decidendi lends support for distinguishing the case of a private corporation. 678 F.2d at 506. There are good reasons to question the Powell conclusion. It overlooked the fact that Monell was focused on the Sherman Amendment, which would have imposed liability for mere failure to prevent harm caused by private citizens, not employees controlled by an employer. It also overlooked the fact that respondeat superior liability was already a well established part of the common law in 1871, so Congress could reasonably have expected the courts to apply the doctrine under § 1988. Perhaps most important, the Powell opinion simply overlooked the Monell Court’s special solicitude for municipalities and their budgets. These omissions counsel against",
"The initial barrier to appellant’s relief from Charter is that the actions she questions are actually the actions of Charter’s employees, not the actions of the hospital itself. The complaint alleges Mrs. Harvey was placed on a locked ward and given medication against her will. The hospital organization did not take these steps, hospital employees did. A defendant cannot be held liable under section 1983 on a respondeat superi- or or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell involved a municipal corporation, but every circuit court to consider the issue has extended the holding to private corpora tions as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc), vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 (1989) (private defendants in 42 U.S.C. § 1983 actions should have at minimum same defenses available to public defendants). We believe the same holds true for Charter: the hospital cannot be faulted for the conduct of its employees. Even if Mrs. Harvey could attribute liability to Charter directly and not vicariously, she is unable to state a claim for section 1983 relief. A successful section 1983 action requires a showing that the conduct complained of (1) was committed by a person acting under color of state law and (2) deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Taking the factual allegations of Mrs. Harvey’s complaint as true, which we must do when reviewing motions to dismiss, Walker Process Equip, v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965), we see a",
"of municipal liability. In Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities and other local governmental bodies constitute “persons” within the meaning of § 1983, see id. at 688-89, 98 S.Ct. 2018. The Court, however, has consistently refused to impose § 1983 liability upon a municipality under a theory of respondeat superior. See Board of the County Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Rather, under Monell and its progeny, a municipality is subject to § 1983 liability only when “it causes such a deprivation through an official policy or custom.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir.1999) (emphasis added). We have determined that “Municipal policy may be found in written ordinances and regulations, in certain affirmative decisions of individual poli-cymaking officials, or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens.” Id. (internal citations omitted). Municipal custom, on the other hand, may arise when a particular practice “is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law.” Id. (internal quotation marks omitted). We have recognized, as has the Second Circuit, that the principles of § 1983 municipal liability articulated in Monell and its progeny apply equally to a private corporation that employs special police officers. Specifically, a private corporation is not liable under § 1983 for torts committed by special police officers when such liability is predicated solely upon a theory of respondeat superior. See Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir.1982); Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406 (2d Cir.1990); see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993) (concluding that private corporation is not subject to § 1983 liability under theory of respondeat superior regarding acts of private security guard employed by corporation); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (same). Rather, a private corporation is liable",
"Inc., 924 F.2d 406, 408-09 (2d Cir.1990) (Monell’s rationale extends to private businesses even though Monell itself dealt with municipal employers); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (private corporation may not be held vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (nothing in Mo-nell suggests that municipal immunity should not be extended to a private corporation acting pursuant to § .1983). However, courts decided these cases before Wyatt. The Supreme Court articulated two “mutually dependent rationales” in support of Mo-nell-type immunity. See Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). First, “the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion.” Second, “the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.” Id. In Sala v. County of Suffolk, the Second Circuit cogently explained the two rationales as follows: The first of these [rationales] is in large part peculiar to the context of individual official immunity [i.e., qualified immunity for individual officers]. The sense of injustice felt at the prospect of holding an individual officer liable in damages when he acted reasonably and in good faith is greatly diminished when the liability is to be affixed to a municipality, even if its responsible officials acted reasonably in the light of the then-existing law. Although “we are not insensitive to the financial plight of local governmental bodies” and wish to avoid “needlessly expanding] recovery at the expense of already overburdened taxpayers,” Turpin v. Mailet, [579 F.2d 152, 165 (2d Cir.) vacated on other grounds, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978) ], “fiscal considerations alone cannot stand in the way of the vindication of constitutional rights.” Id. at 165 n. 38. But, the second rationale discussed in Scheuer [v. Rhodes, 416 U.S. 232, 94",
"U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed. 2d 611 (1978); (2) corporate defendants similarly are not vicariously liable under § 1983, Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1432-33 (10th Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 65, 88 L.Ed.2d 53 (1985) (cert. petition of private defendant T.G. & Y. Stores); (3) municipal defendants in § 1983 claims receive no qualified immunity defense, Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980); and therefore corporate defendants to § 1983 suits likewise should not be able to claim qualified immunity. The basic premise underlying DeVargas’ argument is that because the courts have extended the principle that municipalities are not vicariously liable under § 1983 to include corporate defendants, we should similarly extend the rule that municipalities are not entitled to qualified immunity to private corporations. We reject this premise. The issue of whether parties should be held vicariously liable is completely distinct from whether parties should be entitled to qualified immunity. The Supreme Court’s holding in Monell was based on congressional intent that § 1983 liability not be imposed vicariously. See Monell, 436 U.S. at 691-92, 98 S.Ct. at 2036. Although Monell addressed only the liability of municipalities, the rationale of its holding applies equally to corporate defendants. Lusby, 749 F.2d at 1433; Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982). In the area of § 1983 immunities, the critical distinction is not between employer and individual defendants, but between defendants that are governmental bodies and other defendants. “[Different considerations come into play when governmental rather than personal liability is threatened.” Owen, 445 U.S. at 653 n. 37, 100 S.Ct. at 1416 n. 37. When the Court has addressed immunity of government actors who may be personally liable, it has made it clear that immunity in some form is the norm. See Harlow, 457 U.S. at 818 & n. 30, 102 S.Ct. at 2738 & n. 30. Similarly, we have just held generally that when private parties act pursuant to contractual duties and perform",
"(7th Cir.1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10 Cir.1974); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054, 1055 (E.D.N.Y.1976). I agree that there is no tenable reason to distinguish a private employer from a municipality. Thus, a private corporate employer may not be vicariously liable under § 1983. This is not to say that a private corporate employer is never liable under § 1983. Where a plaintiff alleges a conspiracy between the private employer and its employees who are acting “under color of state law,” a sufficient basis for potential liability exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858 (S.D.N.Y.1987). A further basis for liability would arise if plaintiff alleged that it was the Hospital’s policy to have its security guards engage in coercive practices or its medical staff to decline medical services to arrested persons. Such a policy would satisfy the requirement that a plaintiff show that the institution is the driving force behind the constitutional violation. See Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858-59 (S.D.N.Y.1987). Yet another basis for liability against the Hospital would exist if plaintiff alleged that the Hospital received funding from or was controlled by the state to such an extent that its activities constitute state action for purposes of § 1983. See Davidson, M.D. v. Yeshiva University, 555 F.Supp. 75, 79 (S.D.N.Y.1982). Because plaintiff has made no such allegations, and because there is no vicarious liability against a private corporate employer under § 1983, the action against the Hospital is dismissed. CONCLUSION For the reasons set forth above, defendants’ motion to dismiss is granted in part and denied in part. SO ORDERED. . Plaintiff seeks to have the Officers dismissed from their employment at the Hospital and to have the American Medical Association consider the Doctor's actions. .",
"of § 1983 actions.” Id. at 27-28, 101 S.Ct. at 186. Because plaintiff has alleged that the Doctor conspired with the Officers, who, for the reasons set forth above, were acting “under color of state law,” plaintiff has satisfied the requirement for maintaining a § 1983 action against this private defendant. C. The Hospital Plaintiff alleges that the Hospital is vicariously liable for the constitutional torts of its employees, the Officers and Doctor. While it is clear that vicarious liability may not be imposed under § 1983 upon a municipality, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), neither the Supreme Court nor the Second Circuit appear to have addressed directly the issue of whether a private corporate employer may be held liable under § 1983 on a respondeat superior theory. However, numerous courts in other jurisdictions have held that a corporate employer is not vicariously liable, relying on the reasoning of Monell. See, e.g., Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10 Cir.1974); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054, 1055 (E.D.N.Y.1976). I agree that there is no tenable reason to distinguish a private employer from a municipality. Thus, a private corporate employer may not be vicariously liable under § 1983. This is not to say that a private corporate employer is never liable under § 1983. Where a plaintiff alleges a conspiracy between the private employer and its employees who are acting “under color of state law,” a sufficient basis for potential liability exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858 (S.D.N.Y.1987). A further basis for liability would arise if plaintiff alleged that it was the Hospital’s policy to have its security guards engage in coercive practices or its medical staff to decline medical services to arrested persons. Such a",
"that Monell applies with equal force to private corporations sued under § 1983. See Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2d Cir.1990); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.1992); see also Draeger v. Grand Cent., Inc., 504 F.2d 142, 145-46 (10th Cir.1974) (predating Monell, but holding that private employers are not liable under § 1983 for constitutional torts of their employees); Smith v. Brookshire Bros., 519 F.2d 93, 94 (1975) (per curiam) (same). Here, there is no evidence that Airborne had a corporate custom, policy, practice or usage of assisting law enforcement in making the type of improper controlled pickup alleged by plaintiffs. Moreover, although a private corporation, like a municipality, can be held liable under Monell for a single act of an employee with final policymaking authority in the particular area involved, see Austin v. Paramount Parks, Inc., 195 F.3d 715, 728-29 (4th Cir. 1999) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986) (plurality opinion)), the two Airborne employees involved in the Mejias’ arrest and prosecution do not appear to have been final corporate policymakers in the area of cooperation with law enforcement. Bezmen was Airborne’s regional security manager for the greater New York area only, while Gennarelli was the “cartage supervisor” for the particular Airborne office through which the controlled pickup was conducted. Other courts have held that corporate employees in similar positions are not final policymakers for § 1983 purposes. See, e.g., Austin v. Paramount Parks, 195 F.3d 715, 729-30 (4th Cir.1999) (holding that theme park’s manager of loss prevention was not a final policymaker); Smith v. United States, 896 F.Supp. 1183, 1186 (M.D.Fla.1995) (holding that facility manager of particular halfway house run by private corporation was not final policymaker); Miller v. Correctional Med. Sys., Inc., 802",
"arise when a particular practice “is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law.” Id. (internal quotation marks omitted). We have recognized, as has the Second Circuit, that the principles of § 1983 municipal liability articulated in Monell and its progeny apply equally to a private corporation that employs special police officers. Specifically, a private corporation is not liable under § 1983 for torts committed by special police officers when such liability is predicated solely upon a theory of respondeat superior. See Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir.1982); Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406 (2d Cir.1990); see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993) (concluding that private corporation is not subject to § 1983 liability under theory of respondeat superior regarding acts of private security guard employed by corporation); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (same). Rather, a private corporation is liable under § 1983 only when an official policy or custom of the corporation causes the alleged deprivation of federal rights. See Rojas, 924 F.2d at 408; Sanders, 984 F.2d at 976; Iskander, 690 F.2d at 128. In her second amended complaint, Austin primarily alleged in support of her § 1983 claim that she suffered a deprivation of her federal constitutional rights as a result of Paramount’s policy of causing individuals suspected of passing bad checks at Kings Dominion to be detained, arrested, and prosecuted, even without probable cause, to deter other park guests from engaging in such conduct. At trial, however, Austin was unable to present any evidence to substantiate those allegations. Rather, Austin’s evidence focused on her alternative theory of § 1983 liability, also alleged in the second amended complaint, that Paramount failed to exercise due care in training employees who participated in the investigation, detention, and arrest of individuals suspected of passing bad checks at Kings Dominion, and that such failure manifested a conscious disregard for Austin’s rights. Indeed, the district court, in",
"on the part of defendant Galassi or the other defendants was done pursuant to official policy, custom, or usage, a predicate to municipal liability under Monell v. Dep’t of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The Supreme Court in Monell rejected the theory of § 1983 municipal liability by virtue of the application of the doctrine of respondeat superior: We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a 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 694, 98 S.Ct. at 2037-38. Key to determining whether a municipality can be held liable under § 1983, then, is whether the injury complained of, here, invasion of privacy, resulted from “official policy” or “custom or usage.” The Court set out to clarify the meaning of “policy” in Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986). Recognizing that a single act of municipal policymakers can give rise to § 1983 liability, the Court held that decisions by officials with “final authority to establish municipal policy with respect to the action ordered” will be deemed policy. Id. at 481, 106 S.Ct. at 1299. Authority to make municipal policy may be granted by legislative enactment or delegated by those who possess such authority, and whether an official has policymaking authority is a question of state law. Id. at 483, 106 S.Ct. at 1300; City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988). Municipal custom, on the other hand, will arise where a course of conduct, though not formally approved through official channels, is so permanent and well settled as to virtually constitute law. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36 (quoting Adickes v. S.H."
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"transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court m(...TRUNCATED)
| ["21,1975. The last day for filing claims was, therefore, February 21, 1976. Although the County did(...TRUNCATED)
| ["has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the inte(...TRUNCATED)
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| ["the medical-vocational regulations are reasonably related to the purposes of the statute and that (...TRUNCATED)
| ["disabled within the meaning of the statute. Once the claimant has established an inability to retu(...TRUNCATED)
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