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Opinions of the United 1999 Decisions States Court of Appeals for the Third Circuit 5-18-1999 USA v. Hernandez Precedential or Non-Precedential: Docket 98-5266 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999 Recommended Citation "USA v. Hernandez" (1999). 1999 Decisions. Paper 135. http://digitalcommons.law.villanova.edu/thirdcircuit_1999/135 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. Filed May 17, 1999 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 98-5266 UNITED STATES OF AMERICA v. JULIO HERNANDEZ, Appellant On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 97-cr-00362-2) District Judge: Honorable Anne E. Thompson Argued: January 25, 1999 Before: SLOVITER, McKEE and RENDELL, Circuit Judges (Filed May 17, 1999) Lisa Van Hoeck, Esq. (Argued) Office of Federal Public Defender 22 South Clinton Avenue Station Plaza #4, 4th Floor Trenton, NJ 08609 Attorney for Appellant George S. Leone, Esq. Allan Tananbaum, Esq. (Argued) Office of United States Attorney 970 Broad Street Room 700 Newark, NJ 07102 Attorneys for Appellee OPINION OF THE COURT McKEE, Circuit Judge. Julio Hernandez appeals his conviction for conspiring to obstruct interstate commerce by robbery in violation of 18 U.S.C. SS 1951 (a) and 2, and receiving or possessing goods stolen from commerce in violation of 18 U.S.C. S 659. He argues that the District Court erred in defining reasonable doubt to the jury, in sustaining objections to certain oral statements which defense counsel sought to admit into evidence, and in allowing jurors to ask questions of witnesses. Because we agree that the District Court's definition of reasonable doubt was likely to cause confusion, we will reverse and remand for a new trial. I. This case arises from the highjacking of a tractor trailer truck containing 494 cases of cigarettes valued at $335,125.00. On the morning of Friday, June 13, 1997, Jose Sanchez was delivering the shipment of cigarettes when a van cut him off and forced him to stop his truck. Washington Alvarez jumped out of the van waiving a gun and ordered Sanchez to roll down the window and get out of the truck. Sanchez complied with the demand, but only after he pressed a panic button inside the truck that was designed to silently signal an alarm. As Sanchez was forced from his truck, another individual, later identified as Julio Hernandez, got in. Alvarez lead Sanchez to a nearby van and forced him to get in. When Sanchez got inside, Alvarez placed duct tape over his eyes and taped his hands together. After Alvarez finished binding Sanchez, a third individual named Luis got out of a second van and joined the confederate who had gotten into Sanchez' truck. The conspirators then drove off with Sanchez' truck and its cargo, and Alvarez drove off with Sanchez. Sanchez was eventually released, and sought help from a police officer who lived nearby. Alvarez was arrested a short time later. 2 Meanwhile, a satellite tracking device inside the stolen truck disclosed the truck's location to police. As the truck was backed into a docking space at a gas station, the police arrived, secured the scene, and questioned onlookers about the whereabouts of the driver. A garage at the gas station had been converted to a warehouse, and after the police conducted their investigation they arrested Hernandez who had been unloading cases of cigarettes from the truck and placing them inside the warehouse. Police searched Hernandez pursuant to that arrest and found Sanchez' cigarette lighter inside a package of cigarettes that was inside Hernandez' shirt pocket. Hernandez later gave a statement in which he explained that he had borrowed a cigarette from men who had offered him a job unloading the truck. He explained that he never returned the cigarettes because the men left when the police arrived.1 According to Hernandez, the lighter was inside the pack of cigarettes when he got it. Hernandez stood trial on charges of conspiring to obstruct commerce in violation of 18 U.S.C. S 1951(a) (count 1), obstructing commerce by robbery in violation of 18 U.S.C. SS 1951(a) and 2 (count 2); and receiving and possessing goods that had been stolen from interstate commerce in violation of 18 U.S.C. SS 659 and 2 (count 3). Alvarez testified against Hernandez pursuant to a plea bargain. He testified that Hernandez had jumped into Sanchez' truck after Sanchez was forced out of it, and that Hernandez then drove it away with Luis, and one other conspirator. Hernandez' trial lasted only four days, but the jury deliberated for three days without reaching a verdict. Finally, on the third day, after the trial judge gave a modified Allen charge, the jury convicted Hernandez on counts 1 and 3, but acquitted him of the charges in count 2 of the indictment. This appeal followed. II. We turn first to Hernandez' challenge to the District _________________________________________________________________ 1. Police did briefly detain two men, but allowed them to walk away after brief questioning. 3 Court's practice of allowing jurors to participate in questioning witnesses during the course of the trial. The District Court allowed jurors to pose questions by handing the court written questions for the court's review. It appears from this record (and appellant does not argue to the contrary) that the court would then allow the attorneys to see the question so that counsel could make whatever objections they deemed appropriate, and the court could thus determine the admissibility and propriety of a question outside the hearing of the jury before asking the question. One juror did submit a question in this manner. The juror asked: "[w]hat kind of rear doors are on the rear of the trailer?" App. at 644. However, the court did not ask the question of the witness. Rather, the court allowed the attorneys to decide what, if any, response each would make to the question. The court then gave the following explanation to the jury: Let me just say with regard to questions that are presented by a witness, -- by a juror, it well may be a particular witness who is on the stand at the time may not be the person to whom such a question would be addressed because he may not be a witness who may be in a position to answer the question. We appreciate having your questions because now the attorneys on both sides know what inquiries you would make and either they may address them through their closing arguments, or they know if they wish to bring any additional witnesses to address the question, that would be up to them. App. at 644-45. Defense counsel immediately objected to the question, even though the court never asked it. When court reconvened the following day, defense counsel reiterated her objection, and requested that the court conduct voir dire of the juror who had submitted the question. Defense counsel argued that the substance of the question, as well as its timing, suggested that the juror assumed Hernandez was guilty. The court denied the request stating: 4 That . . . is an unreasonable request because there is nothing to suggest the juror had any notions of guilt. It merely reveals a juror had a question about the truck and what the truck was like. This was a fact question. There was nothing in the way the question was worded which suggested guilt, innocence, anything other than was the light red or was the light green? It was purely a fact question. I think it was handled appropriately. App. at 675-76. Defense counsel now insists that [b]y permitting the jurors to act as inquisitors and declining to investigate alleged jury misconduct following the suspect question, the court denied Hernandez his Sixth Amendment right to a fair trial before an impartial jury. Juror questioning of witnesses is a "procedure fraught with perils. In most cases, the game will not be worth	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals for the Federal Circuit ______________________ JAPANESE FOUNDATION FOR CANCER RESEARCH, Plaintiff-Cross-Appellant, v. MICHELLE K. LEE, Deputy Director, U.S. Patent and Trademark Office, in her official capacity as Deputy Under Secretary of Commerce for Intellec- tual Property AND UNITED STATES PATENT AND TRADEMARK OFFICE, Defendants-Appellants. ______________________ 2013-1678, 2014-1014 ______________________ Appeals from the United States District Court for the Eastern District of Virginia in No. 1:13-CV-00412-AJT- TRJ, Judge Anthony J. Trenga. ______________________ Decided: December 9, 2014 ______________________ MICHAEL J. LOCKERBY, Foley & Lardner LLP, of Washington, DC, argued for plaintiff-cross-appellant. ADAM C. JED, Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, argued for defendants-appellants. With him on the brief were STUART F. DELERY, Assistant Attorney General, 2 JAPANESE FOUNDATION v. LEE DANA J. BOENTE, Acting United States Attorney; and NATHAN K. KELLEY, Solicitor, United States Patent and Trademark Office. Of counsel were MARK R. FREEMAN, Attorney, and DAVID MOSKOWITZ, United States Attor- ney’s Office, of Alexandria, Virginia. ______________________ Before PROST, Chief Judge, DYK and TARANTO, Circuit Judges. PROST, Chief Judge. The United States Patent and Trademark Office (“PTO”) appeals from the decision of the United States District Court for the Eastern District of Virginia grant- ing the Japanese Foundation for Cancer Research’s (“the Foundation”) cross-motion for summary judgment that the PTO acted arbitrarily and capriciously, and abused its discretion, when it refused to withdraw the terminal disclaimer on U.S. Patent No. 6,194,187 (“’187 patent”). For the reasons stated below, we reverse. I The ’187 patent was issued and assigned to the Foun- dation on February 27, 2001. On October 11, 2011, the Foundation’s attorney of record responsible for the prose- cution of the ’187 patent filed a statutory disclaimer pursuant to 37 C.F.R. § 1.321(a) with the PTO, disclaim- ing “the entire term of all claims in U.S. Patent 6,194,187” and requesting that the disclaimer be “duly recorded.” J.A. 894. On December 13, 2011, the Foundation’s attor- ney of record filed a petition under 37 C.F.R. § 1.182 to withdraw the statutory disclaimer. The petition indicated that the disclaimer “was not filed in the context of any litigation or an assertion of double patenting,” and that the disclaimer had not yet been made public by either the Foundation or the PTO, as it had not yet been entered into the PTO’s electronic Patent Application Information Retrieval (“PAIR”) database or the paper prosecution file. JAPANESE FOUNDATION v. LEE 3 J.A. 900. The PTO issued a decision denying the Founda- tion’s petition on January 17, 2012. According to the PTO’s decision, the petition indicated that the Foundation’s filed disclaimer included all of the information as well as the fee required pursuant to 37 C.F.R. § 1.321(a). J.A. 928. The PTO also noted that “[t]here is no indication that the power of attorney was revoked or withdrawn,” and thus the attorney of record “appears to be a proper party to file the statutory dis- claimer.” J.A. 928-29. The PTO explained that the statu- tory mechanisms available to correct a patent “are not available to withdraw or otherwise nullify the effect of a recorded terminal disclaimer,” and that the PTO’s estab- lished policy was to deny any “request to withdraw or amend a recorded terminal disclaimer in an issued patent on the grounds that the rules of practice and 35 U.S.C. § 253 do not include a mechanism for withdrawal or amendment of such a terminal disclaimer.” J.A. 929. The PTO concluded by noting that even though the disclaimer had not been “fully processed” the “patent owner freely dedicated to the public the entire term” of all the patent’s claims when the disclaimer was filed. Id. The Foundation’s terminal disclaimer subsequently appeared in the ’187 patent’s prosecution file on the electronic PAIR database. On February 27, the Founda- tion filed a petition under 37 C.F.R. §§ 1.182 and 1.183 asking the PTO to withhold publication of the terminal disclaimer in the Official Gazette, and indicating that it would file a request for reconsideration, which it filed on March 16. (The Foundation asked in the alternative for relief under 37 C.F.R. §§ 1.182 and 1.183 “to invoke the discretion of the director and suspend the rules.”). In August, the Foundation’s attorney of record met with the PTO and, following that meeting, filed a supplemental petition addressing its argument concerning whether the PTO had the inherent authority to grant the relief the Foundation requested. 4 JAPANESE FOUNDATION v. LEE The Foundation’s March petition described what the Foundation characterized as “newly revealed information” and “newly discovered evidence.” J.A. 976. This included signed declarations from a number of personnel associat- ed with one of the ’187 patent’s Japanese licensees, Kyowa Hakko Kirin, Inc. (“KHK”), and KHK’s Japanese patent counsel, Kyowa Law Group (“Kyowa Law”). 1 According to the declarations and the Foundation’s peti- tion, the following series of events preceded the Founda- tion’s attorney of record’s filing of the statutory disclaimer. First, on March 8, 2011, KHK’s in-house counsel con- tacted a paralegal at Kyowa Law to inquire as to whether a patent may be abandoned or disclaimed before it lapsed because of non-payment of the next maintenance fee. The paralegal’s declaration states that she contacted her “boss” and together they “conducted research which indicated that a disclaimer could be filed under U.S. statutory and regulatory provisions.” J.A. 963. Then, the next day, March 9, the paralegal declares that she sent a letter by fax to the Foundation’s attorney of record’s law firm, Foley & Lardner LLP (“Foley”), which reads, in relevant part, as follows (below the subject line “Re: U.S. Patent No. 6,194,187” and dated March 9): Dear Sirs: Our clients would like to abandon the captioned patent positively and invalidate this patent before the case lapses by non-payment of the next maintenance fees, which will be due on August 27, 2012. 1 Despite sharing the name “Kyowa,” the licensee and its counsel are unrelated entities. JAPANESE FOUNDATION v. LEE 5 Would you please let us have the necessary forms and/or information for the procedure of positive abandonment, preferably by March 15, 2011. We would appreciate your immediate reply by re- turn facsimile. J.A. 967. The paralegal’s declaration further states that after the March 11 earthquake and subsequent tsunami in Japan, her work “reporting and following up the pro- gress of the disclaimer was adversely affected by the long lasting irregular and abnormal situation after the Earth- quake.” J.A. 964. She explained this was why she did not send a copy of the March 9 letter to KHK or otherwise inform KHK of its contents. Id. Then, on October 11, the Foundation’s attorney of record filed the terminal dis- claimer at the PTO. The paralegal’s declaration goes on to state that she received a copy of the filed terminal disclaimer from the Foundation’s attorney of record on November 29, 2011, and then reported it to KHK. Id. The next day, she was informed by KHK instructing Kyowa Law to “urgently ask Foley to restore the patent.” Id. (The Foundation’s attorney of record subsequently filed the aforementioned December 2011 petition.) The Foundation’s	{ "pile_set_name": "FreeLaw" }
853 F.2d 370 AMERICAN GENERAL FIRE & CASUALTY COMPANY, Plaintiff-Appellee,v.Mizell REESE and Barbara Reese, Defendants-Appellants,v.U.S. DEPARTMENT OF AGRICULTURE, Defendant-Appellee. No. 88-4155. United States Court of Appeals,Fifth Circuit. Aug. 29, 1988. Paul Henry Kidd, Jr., Monroe, La., for defendants-appellants. John A. Broadwell, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Leven H. Harris, Asst. U.S. Atty., Shreveport, La., for defendant-appellee. Sharon W. Ingram, J. Michael Hart, Monroe, La., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Louisiana. Before THORNBERRY, WILLIAMS and SMITH, Circuit Judges. JERRE S. WILLIAMS, Circuit Judge: 1 Appellants, Mr. and Mrs. Reese, appeal the district court's order releasing insurance proceeds for their home, which was destroyed by fire in 1986, to the Farmers Home Administration (FmHA). The terms of the mortgages which the Reeses gave FmHA on their home as security for crop production loans required them to insure the home for the benefit of FmHA. But the American General Fire and Casualty Co. insurance policy in effect at the time of the fire did not name FmHA as a loss mortgagee or loss payee. The district court held that under Louisiana law, FmHA held an equitable lien in the security property as of the time of the fire, and awarded the insurance proceeds to the FmHA. We AFFIRM the district court's judgment in favor of American General and FmHA, but on different grounds. We also amend the court's judgment to deny the Reeses penalties or damages or attorney's fees under the Louisiana Insurance Code. This matter was not addressed by the district court. I. 2 Most of the facts were stipulated by the parties, and the case was decided by the district court on the record, without trial. 3 Mr. and Mrs. Reese are farmers who in recent years received several crop production loans through the Farmers Home Administration (FmHA), an agency of the federal government. As security for these loans, the Reeses granted various mortgages on their home, which was located on a one-acre lot in Morehouse Parish, Louisiana. The mortgages all contained language requiring that the mortgage security be properly insured for the benefit of the mortgagee, FmHA.1 By a letter dated March 27, 1985, FmHA wrote appellants directing them "to obtain insurance on dwelling and assign it to FmHA." The Reeses then obtained an $80,000 fire insurance policy on their residence in June, 1985. The policy did not, however, name the FmHA as a loss payee or mortgagee, nor did it otherwise indicate FmHA's interest in the property. 4 The policy was in full force and effect when the Reeses' home was totally destroyed by fire on April 26, 1986. The Reeses made timely proof of loss to appellee, American General. About July 15, 1986, American General issued a check for the fire loss to the Reeses for $80,000 which was made payable jointly to them and to the United States.2 A few weeks later, the Reeses returned the check to American General and asked that a new one be issued to them only. American General did not issue a new check. 5 On October 23, 1986, the Reeses sold the one-acre lot upon which their residence had been located. Proceeds of the sale (amounting to $2,000) were paid to FmHA, and four mortgages held by FmHA on the one acre were "cancelled" or "released" the next day. Relevant language in the cancellation form, captioned "Partial Release," reads: 6 ... the Government does hereby release from the lien of said mortgage the property hereinafter described to-wit: [legal description of location omitted] but no further, hereby authorizing and requesting the Recorder of mortgages of the Parish of Morehouse, Louisiana, to make mention of the partial release of mortgage herein granted ... on the margin of the record of said mortgage in his office ... 7 Only the aforedescribed property is released from the lien of said mortgage. This release shall not affect or modify the obligation secured by said mortgage, or affect or release any property described in said mortgage other than that specifically released herein. 8 American General asked the United States for a release of its claims against the $80,000, but the United States made no response. It does not appear that the United States manifested any interest in the insurance proceeds until February 18, 1987. 9 On August 20, 1986, the Reeses sued American General in state court for $116,000 ($80,000 for dwelling loss, $20,000 penalty or damages under Louisiana law, and $16,000 for loss of use of dwelling). On January 20, 1987, American General filed petition for concursus (interpleader) naming as defendant-claimants the Reeses and the United States. American General then deposited the full amount payable under the policy into the state court registry. On January 29, 1987, the Reeses filed a motion for summary judgment asking the state court to award them the insurance policy proceeds from American General together with statutory penalties and attorney's fees under La.R.S. 22:658.3 On February 18, 1987, the United States removed the case to the federal district court. Following removal, on April 21, 1987, the Reeses filed a supplemental motion for summary judgment with a copy of the cancellation/release of mortgages held by the United States on the one-acre lot. The district court denied the Reeses' motion for summary judgment on June 16, 1987. On August 7, the parties agreed to have the case tried upon stipulations of fact under an October 7, 1987 deadline. The Reeses' unpaid loan balance at that time was in excess of $185,000. 10 On February 16, 1988, the district court awarded the entire insurance policy proceeds of $80,000 plus accumulated interest to the United States. The court directed the Parish Clerk of Court to disburse all subject funds from the registry to the United States. The district court held that an "equitable lien" existed on the policy proceeds in favor of FmHA by virtue of appellants' agreement to make the policy payable to it, and that this equitable lien was not affected by cancellation of all mortgages on the subject lot. The court did not address appellants' motion for penalties and attorney's fees. The Reeses appeal this judgment.4 II. 11 Three issues are before us. The first is whether the district court properly awarded the insurance proceeds to FmHA under an "equitable lien" or some other legal or equitable theory. The second is whether the district court erred in finding that the government's claim upon the insurance proceeds was unaffected by FmHA's cancellation or "partial release" of the subject property. The final issue involves possible penalties and attorney's fees under Louisiana law. A. Equitable Lien; Equitable Reformation 12 On March 27, 1985, FmHA wrote a letter to appellants requiring them "to obtain insurance on dwelling and assign it to FmHA." All of the mortgages between the United States and appellants contained a clause requiring the mortgage security to be properly insured for the benefit of the mortgagee. Nevertheless, FmHA was not listed as mortgagee on appellants' fire insurance policy with American General, the policy was not assigned to FmHA, and there was no loss payee clause in the policy in favor of FmHA when the fire occurred on April 26, 1986. 13 The district court found that these facts invoked the doctrine of equitable lien under Louisiana law as set out in Wheeler v. Insurance Company, 101 U.S. 439, 442, 25 L.Ed. 1055 (1880). 14 [I]t is settled by many decisions in this country, that if the mortgagor is bound by covenant or otherwise to insure the mortgaged premises for the better security of the mortgagee, the latter will have an equitable lien upon the money due on a policy taken out by the mortgagor to the extent of the mortgagee's interest in the property destroyed. [Citations omitted]. The equitable doctrine upon which the appellants' claim is founded undoubtedly obtains in Louisiana. It is derived from the principles of the civil law, which is the basis of the civil code of that State; and it is supported by the authorities cited from the Louisiana reports. [Citations omitted.] 15 The district court held that Wheeler is still recognized authority in Louisiana courts, citing Davis v. Aetna Casualty & Surety Company, 329 So.2d 868, 872 (La.App.1975), writ refused, 333 So.2d 233 (La.1976). 16 It is not clear from Davis, however, whether Wheeler still is the law in Louisiana. The Davis court merely stated, "we are cognizant of the equitable lien theory enunciated in Wheeler," but then went on to	{ "pile_set_name": "FreeLaw" }
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 15-1896 JAMES S. EICHER, APPELLANT, V. DAVID J. SHULKIN, M.D., SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Decided August 14, 2017) Glenn R. Bergmann and Sun H. Choi, both of Bethesda, Maryland, were on the brief for the appellant. Leigh A. Bradley, General Counsel; Mary Ann Flynn, Chief Counsel; Christopher W. Wallace, Deputy Chief Counsel; and Catherine A. Hulgan, all of Washington, D.C., were on the brief for the appellee. Before DAVIS, Chief Judge,1 and BARTLEY and GREENBERG, Judges. DAVIS, Chief Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting opinion. DAVIS, Chief Judge: The appellant, James S. Eicher, appeals, through counsel, a January 13, 2015, decision of the Board of Veterans' Appeals (Board) that denied entitlement to payment of educational benefits under chapter 33, title 38, U.S. Code (Post-9/11 GI Bill benefits or Chapter 33 benefits) for distance learning pursued at a foreign educational institution from October 4, 2010, to September 30, 2012. Record (R.) at 3-13. On June 30, 2016, the Court, in a single-judge decision, vacated the Board's decision and remanded the matter for further adjudication. Eicher v. McDonald, No. 15-1896, 2016 WL 3548143 (U.S. Vet. App. June 30, 2016) (mem. dec.). On July 20, 2016, the Secretary filed a motion for single-judge reconsideration or, in the alternative, a panel decision. The 1 On May 25, 2017, Chief Judge Davis replaced Judge Lance, who participated in the decision on the merits, but who retired from active service before the appellant's motion for reconsideration was filed. Court granted the Secretary's motion for a panel decision, withdrew the Court's June 30, 2016, memorandum decision, and on April 19, 2017, issued a panel opinion in its place. On May 10, 2017, the appellant filed a motion for reconsideration of the panel opinion. The Court grants the appellant's motion for reconsideration, withdraws the April 19, 2017, panel opinion, and issues this panel opinion in its place. For the reasons that follow, the Court will affirm the Board's decision. I. BACKGROUND The appellant served in the U.S. Army from July 1987 to September 1993 and from April 1998 to February 2011, including service in the Gulf War and Afghanistan. R. at 15-17. In August 2009, before his separation from service, the appellant filed an electronic VA Form 22-1990, "Application for VA Education Benefits," for benefits under chapter 30, title 38, U.S. Code (Montgomery GI Bill benefits or Chapter 30 benefits). R. at 713-21. Following receipt of his VA Form 22-1990, on March 18, 2010, VA issued a "Certificate of Eligibility," which notified him that he was entitled to 36 months of "education benefits under the Montgomery GI Bill . . . for enrollment and pursuit of any course, program, final objective, or institution approved for veterans." R. at 711. On March 22, 2010, VA received a request from De Montfort University (the University), located in the United Kingdom, for approval of its Masters of Arts (MA) degree in sports history and culture program (the Program). R. at 579. The University's representative stated that the University sought approval of the Program by VA for the appellant, who would pursue the Program via distance learning. Id. On July 20, 2010, the appellant emailed the University, copying VA representatives, to confirm his enrollment in the Program "as an international, on-line, internet-based student" and explained that, although other "De Montfort University courses of study . . . have already been registered or certified by [VA]," the Program had not. R. at 637. He asked the VA representatives "what steps must be taken for" the Program "to gain []VA approval or certification." R. at 638. In an email response to the appellant, copying a University representative, a VA representative explained that a University official must apply "for VA approval of the MA degree program in Sports History & Culture," and directed the University's representative to submit "the application for 2 the Foreign School Approval Group" to the "Washington Regional Office [(RO)]." R. at 636. In reply, the University's representative emailed the appellant and a VA representative and explained that the University "had already applied for approval of the MA Sports History and Culture" program. R. at 635. On August 6, 2010, the University's representative requested an update on "the status of the approval of the MA Sports[] History and Culture course with the VA." R. at 634. That same day, a VA representative emailed the University's representative that the "program was approved August 4, 2010," and that "[a] letter and information regarding the approval was forwarded that d[ay]." R. at 633. The University's representative forwarded the VA representative's email to the appellant. Id. The record contains a letter dated "August 45, 2010," from VA to the University's representative, which the University's representative asserts she never received. R. at 574-75, 576. That letter stated that VA had "approved Masters in Sports History and Culture" and immediately after that stated: PLEASE NOTE: Programs are approved for in-residence training only. Due to recent changes in the law governing [VA] educational benefits for students at foreign schools, we cannot pay benefits for distance learning or independent study courses. Please do not submit enrollment information for any courses taken by distance learning, online, or independent study. All students must be in residence and all courses must be attended in-person in a formal classroom setting (taught programs). R. at 574 (emphasis in original). The letter noted that the University had "no designated Certifying Officials responsible for submitting enrollment information for eligible students" and included "a VA Form 22-8794, Designation of Certifying Officials," that VA "must receive . . . before [it] can process awards for eligible students." Id. The letter also included "VA Form 22-1999, Enrollment Certifications, for use in reporting enrollment information," of eligible students. R. at 575. On August 17, 2010, the appellant filed a second electronic VA Form 22-1990, "Application for VA Education Benefits," and requested Post-9/11 GI Bill benefits in lieu of his Montgomery GI Bill benefits. R. at 728, 722-31. He stated that he would attend the Program starting in September 2010. R. at 723. After VA received the appellant's second VA Form 22-1990, VA issued him on August 24, 2010, a "Certificate of Eligibility," which notified him that he was entitled to 35 months and 6 days of "benefits for an approved program of education or training under the Post 9/11 GI 3 Bill," that he "must take this letter to [his] school," and that his "school must certify [his] enrollment before [he] can get paid." R. at 689. On February 18, 2011, VA received the University's VA Form 22-1999, "Enrollment Certification," on the appellant's behalf reflecting enrollment in the Program, taken by distance learning, from October 2010 to September 2012. R. at 684. On March 7, 2011, VA denied the appellant's request for payment. R. at 662-65. VA explained that, although the appellant was eligible for Post-9/11 GI Bill benefits, VA could not pay for his enrollment in the Program, as "[i]ndependent or distance learning is not approved for GI Bill payment at foreign schools" and his "school reported that [his] training is distance learning only." R. at 662. The appellant submitted a Notice of Disagreement with the March 2011 decision, R. at 658-60; VA issued a Statement of the Case, R. at 490-503; and he perfected his appeal, R. at 342-46. In the decision on appeal, the Board determined that it was "without legal authority to grant the educational benefits sought," because Post 9/11 GI Bill "benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken via distance learning." R. at 9-10. The Board noted that 38 U.S.C. § 503 provides equitable relief when there has been administrative error but that "if the [v]eteran wishes to petition for equitable relief, he must file such a petition with the Secretary given that the authority to award equitable relief under that statute is committed to the sole discretion of the Secretary."	{ "pile_set_name": "FreeLaw" }
758 F.Supp. 226 (1990) In re MIDLANTIC CORPORATION SHAREHOLDER LITIGATION. Civ. No. 90-1275 (DRD). United States District Court, D. New Jersey. October 11, 1990. 227 228 Barrack, Rodos & Bacine, Leonard Barrack, Anthony J. Bolognese, Cherry Hill, N.J., for plaintiffs Cheryl Cohen, Custodian for Jason Mark Cohen, Rose B. Rosenbaum, and Barry F. Schwartzman, Co-lead Counsel for Class. Greenfield & Chimicles, Richard D. Greenfield, Mark C. Rifkin, Haverford, Pa., for plaintiff Gerry Banmiller and Co-lead Counsel for Class. Gross & Metzer, Debra R. Gross, Anne D. White, Philadelphia, Pa., for plaintiff Labov and Counsel in the Derivative Claims. Pitney, Hardin, Kipp & Szuch, Clyde A. Szuch, Dennis R. LaFiura, Morristown, N.J. (Skadden, Arps, Slate, Meagher & Flom, Jeremy Berman, New York City, of counsel), for defendants. OPINION DEBEVOISE, District Judge. Pursuant to Federal Rule of Civil Procedure 12(b)(6) defendant Midlantic Corporation and individual defendants Van Buren, Peraino, Rishel, McDonald, Fox, Holman, Hough, and Lewis move to dismiss plaintiffs' complaint for failure to state a claim on which relief can be granted. Specifically, defendants claim that the causes of action alleged in plaintiffs' Consolidated Amended and Derivative Complaint (hereafter "Complaint") sounding in fraud under Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, have been pled with insufficient particularity under Federal Rule of Civil Procedure 9(b). Defendants also claim that several Counts allege failures to disclose mismanagement and to make financial predictions and are thus not actionable under Section 10(b) and Rule 10b-5. Furthermore, defendants move for dismissal of plaintiffs' claims under Sections 14(a) and 20(a) of the Exchange Act, 15 U.S.C. §§ 78n(a), 78t(a), and plaintiffs' shareholder derivative action under Federal Rule of Civil Procedure 23.1 for failure to plead facts sufficient to support actionable claims. Likewise, the legal sufficiency of plaintiffs' pendent state law claim alleging negligent misrepresentation under New Jersey law is challenged for failure to plead adequate facts to sustain a cause of action. Plaintiffs have voluntarily dismissed Count II of the Complaint. Thus plaintiffs do not oppose defendants' motion to dismiss as to Count II of the Complaint asserting claims under Sections 11, 12 and 15 of the Securities Act, 15 U.S.C. §§ 77k, 77l (2), 77o. Accordingly, this opinion will not address the issues raised by defendants with respect to these claims. FACTS Midlantic Corporation [hereafter "Midlantic"][1]229 is an interstate bank holding company with assets of approximately $23.7 billion dollars and operations primarily serving the mid-Atlantic region but with offices scattered throughout Pennsylvania, New Jersey, Florida, Delaware, Maryland, London, Hong Kong, and the Cayman Islands. Complaint ¶ 6. Midlantic was formed in January 1987 by the reorganization of CBI and Midlantic Banks, Inc. Complaint ¶ 16. Dubbing itself "the Hungry Bankers", Midlantic then engaged in an aggressive expansion campaign which allegedly entailed making increasingly risky loans and investments concentrated in real estate, construction and leveraged buy-outs (LBOs). Complaint ¶¶ 17-19, 30(a). Plaintiffs allege that this expansion program required Midlantic to maximize reported earnings to paint a glowing picture of financial health that veiled the enormous risks assumed by its recent investments and the concentration of its capital committed to such high-risk ventures. As a consequence of this alleged need to boost the profits on the books and conceal the risks entailed by defendants' strategy for expansion, plaintiffs allege that the pressures to continue Midlantic's fast-paced growth led defendants to "under-reserve for potential loan losses and to avoid acknowledgment of the risks inherent in the loans and investments" made by the corporation. Complaint ¶ 19. In other words, Midlantic failed to set aside sufficient funds to cover the amount of loans and investments likely to become non-performing and thus posing a likelihood of vast losses. Plaintiffs further allege that these pressures, inherent in Midlantic's expansion drive, also led defendants to make material misstatements of fact and material omissions of fact in public announcements and publications that perpetuated the illusory image of a financially untroubled corporation experiencing rapid growth of assets and profits which was a safe investment opportunity. The gravamen of plaintiffs' Complaint is their allegation that these material misstatements and omissions were designed to and did in fact induce prospective investors to purchase Midlantic securities at artificially high prices to raise badly needed capital during a period from March 27, 1987 and April 5, 1990 [hereafter "the class period"]. See Complaint ¶¶ 7(f), 22-23, 29-39. On December 20, 1989, Midlantic added $75 million dollars to its loan loss reserves. Plaintiffs allege this increase was accompanied by false and misleading statements to "downplay and conceal the material extent to which the [Midlantic]'s earnings, assets, and shareholders' equity had been overstated, and possible loan losses had been understated." Complaint ¶ 26. Midlantic's loan loss reserves were again increased on April 6, 1990, this time by $110 million. Complaint ¶ 27. Plaintiffs claim that defendants again responded with materially false public statements. Id. The speculative bubble Midlantic had allegedly become apparently burst at or about this time. April 5, 1990 marks the end of the class period, during which plaintiffs claim they and other investors in Midlantic securities were misled by defendants' statements and purchased securities at inflated prices. Midlantic's securities, traded on the NASDAQ exchange, tumbled in price following the announcement that loan loss reserves were to be dramatically increased. Consequently, Midlantic's shareholders absorbed the loss from this fall in the value of their Midlantic securities. A number of these shareholders brought class actions and one derivative action was brought on behalf of Midlantic against the individual defendants for damages incurred as the true financial state of Midlantic came to be appreciated by the financial markets. All actions were consolidated by Pre-Trial Order No. 1 on May 25, 1990. Plaintiffs' first complaint was filed with the Clerk of this Court on March 28, 1990 and a Consolidated Amended Class and Derivative Complaint on May 25, 1990. A second Consolidated Amended Class and Derivative Complaint was filed June 5, 230 1990. They claim, inter alia, that Midlantic, its senior officers, and its directors made a practice of issuing misleading statements and engaging in suspect accounting and managerial practices to conceal risks lying at the very foundation of its loan and investment portfolios and in this manner induced members of the public to invest in Midlantic without the benefit of material information which would have led them to invest elsewhere. Defendants filed this motion July 31, 1990 to dismiss for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), failure to plead fraud with particularity as required by Federal Rule of Civil Procedure 9(b), for lack of actionable subject matter as to the state law Counts III and V, and for insufficiency of service of process as to individual defendants Fox, Holman, Hough and Lewis. Defendants' motion to stay merits discovery was denied by Order dated August 17, 1990 which set a schedule for discovery and production of specified classes of documents. Plaintiffs were to receive the first "wave" of discovery materials, nine categories of documents, on September 4, 1990. A hearing on class certification has been postponed until the disposition of this motion to dismiss. DISCUSSION Defendants bring a Motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Pursuant to Rule 12(b)(6), plaintiffs' complaints must be dismissed for failure to state a claim if defendants demonstrate "beyond a doubt that plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir.1980). All allegations set forth in the complaint must be accepted as true, see Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Walck v. American Stock Exchange, Inc., 687 F.2d 778, 780 (3d Cir.1982), and all reasonable inferences must be drawn in plaintiff's favor, see McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229, 1235-36 (3d Cir.1978). To withstand the motion, it "is not necessary to plead facts upon which the claim is based." Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir.1977). PLEADING REQUIREMENTS FOR FRAUD CLAIMS UNDER RULE 9(	{ "pile_set_name": "FreeLaw" }
Electronically Filed Intermediate Court of Appeals CAAP-15-0000363 16-SEP-2016 01:38 PM	{ "pile_set_name": "FreeLaw" }
1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 29,056 10 HENRY PACHECO, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 13 John M. Paternoster, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Max Shepherd, Assistant Attorney General 17 Albuquerque, NM 18 for Appellee 19 Hugh W. Dangler, Chief Public Defender 20 Allison Jaramillo, Assistant Appellate Defender 21 Santa Fe, NM 22 for Appellant 23 MEMORANDUM OPINION 24 Henry Pacheco (Defendant) appeals from the judgment and the amended 1 judgment, partially suspended sentence and commitment. [RP 18, 32] Defendant 2 raises two issues on appeal, contending that: (1) Defendant was not guilty of any 3 crime, for not returning from a furlough to the county jail, after having been 4 sentenced, both orally and in writing, to the Department of Corrections; and (2) 5 alternatively, if a crime was committed, the correct charge is escape from jail, a fourth 6 degree felony rather than escape from the penitentiary, a second degree felony. [DS 7 3] 8 This Court’s first calendar notice proposed summary affirmance. Defendant 9 filed a memorandum in opposition that persuaded us to propose summary reversal in 10 a second calendar notice. The State now agrees with the proposed disposition but asks 11 this Court to reverse and remand for the district court to enter a guilty verdict and 12 sentence Defendant for escaping from jail pursuant to NMSA 1978, § 30-22-8 (1963), 13 rather than escaping from the penitentiary pursuant to NMSA 1978, § 30-22-9 (1963). 14 After considering the State’s request, however, we decline to do so. See, e.g., State 15 v. Villa, 2004-NMSC-031, ¶¶ 12-13, 136 N.M. 367, 98 P.3d 1017 (holding that giving 16 Defendant notice of the lesser-included offenses after conviction hardly provides 17 Defendant with adequate notice of those charges). This is not merely a re-sentencing 18 issue as the State asserts. As our Supreme Court stated in Villa, this Court cannot 19 convict a defendant on appeal of a charge that the State did not pursue and Defendant 2 1 did not defend below. Id. ¶ 13. 2 For these reasons and the reasons set forth in the second calendar notice, we 3 reverse and remand to the district court to vacate Defendant’s conviction for escape 4 from the penitentiary pursuant to Section 30-22-9. See State v. Hodge, 118 N.M. 410, 5 417, 882 P.2d 1, 8 (1994) (discussing that when the defendant has reserved for appeal 6 an issue that does not deal simply with the sufficiency of the evidence to establish one 7 or more factual determinations but rather a question of law or a mixed question of fact 8 and law, the favorable resolution requires the defendant’s acquittal). 9 IT IS SO ORDERED. 10 ___________________________________ 11 RODERICK T. KENNEDY, Judge 12 WE CONCUR: 13 ___________________________ 14 MICHAEL E. VIGIL, Judge 15 ___________________________ 16 TIMOTHY L. GARCIA, Judge 3	{ "pile_set_name": "FreeLaw" }
647 F.3d 772 (2011) UNITED STATES of America, Appellee, v. B.A.D., Appellant. No. 11-1391. United States Court of Appeals, Eighth Circuit. Submitted: June 14, 2011. Filed: August 1, 2011. 773 Al J. Arendt, argued, Pierre, SD, for Appellant. Jay P. Miller, AUSA, argued, Pierre, SD, for Appellee. Before COLLOTON, CLEVENGER,[1] and BENTON, Circuit Judges. CLEVENGER, Circuit Judge. Defendant B.A.D.[2] appeals his juvenile delinquency conviction on two counts of aggravated sexual assault. At trial before the district court,[3] the victim failed to identify B.A.D. as the perpetrator. The victim did, however, provide other testimony concerning the crimes, as did other members of the family (B.A.D. is the victim's uncle). B.A.D., pointing to the failed in-court identification, contends that his conviction lacked sufficient supporting evidence. We disagree, and therefore affirm the district court. I The charged conduct in this case occurred around September 2009. At that time, B.A.D. was 16 years old. He was a member of the Cheyenne River Sioux Tribe, and he lived with his father R.D. on the Lower Brule Indian Reservation.[4] J.D. is B.A.D.'s nephew,[5] and was four years old at the time of the charged conduct. According to the government, B.A.D. engaged in at least two sexual acts (specifically, oral sex and anal sex) with J.D. around this time. On September 2, 2010, the government charged B.A.D. by juvenile information with two counts of aggravated sexual assault. See 18 U.S.C. §§ 2241(c), 2246(2)(A), (2)(B). B.A.D. pled not guilty and the case proceeded to an adjudicatory hearing. The court heard testimony from, among others, the victim J.D., who by this time was five years old; the victim's mother D.D., who is B.A.D.'s half-sister; R.D., father of B.A.D. and grandfather of the victim J.D.; and C.D., R.D.'s wife and B.A.D.'s mother. Trial Tr., United States v. B.A.D., No. CR 10-30074, Dkt. # 53 (D.S.D. Feb. 23, 2011) (trial held Dec. 21, 2010) [hereinafter Trial Tr.]. The victim's mother D.D. was the government's first witness. She described the family relationships discussed above, and laid out how her half-brother B.A.D. lived with their common father R.D. D.D. also testified that she regularly left her son, the victim J.D., at R.D.'s house to be cared for while D.D. attended night classes at a local community college. Id. 20:7-21:18. D.D. 774 testified that she was giving J.D. a shower in late September 2009 when she noticed redness on J.D.'s penis and around his anus. She also testified that she had a conversation that night with J.D., after which she came to believe that J.D. had been the victim of sexual assault. Id. 21:19-25:24. The victim J.D. also testified. In response to the government attorney's questions, J.D. testified that he knew a person named "Uncle [B.],"[6] and described "Uncle [B.]" as "A guy that has been mean to me." Id. 52:21-25. The government attorney asked J.D. if "Uncle [B.]" was in the courtroom, and J.D. said he was not: Q: [I]s this person that you just said was mean to you, your Uncle [B.], is he here in the room with us today? A: No. Q: Okay. What I want you to do is look around the room and see everybody and tell me if your Uncle [B.] is in this room. A: Nope. Q: Okay. You don't see him? A: Nope. Q: Okay. Do me a favor and stand up so you are big and tall. A: (Complies.) . . . Q: Do you see this guy sitting here? A: Yes. Q: In the green shirt? A: Yes. Q: Do you know who that is? A: Nope. Q: That's not your Uncle [B.]? A: Nope. Trial Tr. 53:1-54:1. J.D. went on to describe in detail two sexual assaults upon him by "Uncle [B.]" at a location near where B.A.D. lived with his father. J.D. stated that he did not immediately tell his mother about the assaults because "Uncle B." instructed him not toas recounted by J.D., "Uncle B.'s" words were "Don't tell her." Id. 54-63. The government also called to the stand Renette Kroupa, an employee at the nearby Indian Health Service clinic who performed a forensic interview and forensic examination of J.D. in October 2009. Ms. Kroupa testified that on her examination of J.D. she discovered a "small fissure" around J.D.'s anus. She acknowledged that this was not the extent of damage a layperson might expect for a victim in these circumstances, but pointed out that nearly a month had passed between the reported incident and her examination. Ms. Kroupa testified that injuries of the type commonly incurred in sexual abuse cases involving anal penetration can heal quickly, especially for small children. On cross-examination, Ms. Kroupa acknowledged that she was unable to draw from her physical examination of J.D. any conclusions about whether he had been sexually abused. Id. 66-86. The defense called B.A.D.'s father R.D. to testify. After first testifying that he never left the defendant B.A.D. alone with J.D., on cross-examination R.D. acknowledged that due to his own health problems, R.D. might have been unaware if the two had been alone and unsupervised for some period of time. See id. 112-16. At the end of R.D.'s testimony, the district court questioned him directly: Q: To your knowledge, is there any other family member of [J.D.] whose name is [B.], besides your son, [B.A.D.]? A: Not that I know of. *775 Q: When [J.D.] was in your household with your son [B.A.D.], by what name did [J.D.] call your son? A: Uncle [B.] Id. 117:4-10. R.D. also testified that he was unaware of any instances where J.D. exhibited confusion about who "Uncle B." was. Id. 119-20. Finally, the defense called C.D., B.A.D.'s mother. Again questioned by the court, C.D. testified that J.D. called her son B.A.D. "Uncle B." She also testified that there had not been major changes to B.A.D.'s appearance since the time of the charged assaults. Id. 151-52. Following the hearing, the court held that, while "it [was] a very close call on these facts," the government had proved B.A.D.'s guilt beyond a reasonable doubt. Findings, United States v. B.A.D., No. CR 10-30074, Dkt. # 41, at 7 (D.S.D. Jan. 4, 2011) [hereinafter Findings]. It sentenced him to twelve months incarceration and four years of juvenile delinquency supervision. B.A.D. timely appealed. This court has jurisdiction to review final judgments of the U.S. District Court for the District of South Dakota. 28 U.S.C. §§ 41, 1291, 1294. II A This court reviews the factual findings of a district court in a juvenile delinquency case for clear error, and accords deference to the court's credibility determinations. United States v. L.B.G., 131 F.3d 1276, 1278 (8th Cir.1997). To determine the sufficiency of the evidence supporting a criminal conviction, this court must "look at the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict." United States v. Black Cloud, 101 F.3d 1258, 1263 (8th Cir. 1996) (citations omitted). We avoid weighing the evidence or assessing the credibility of witnesses. United States v. Meeks, 639 F.3d 522, 527 (8th Cir.2011). Reversal is warranted only if no reasonable fact finder could have found guilt beyond a reasonable doubt. Id. B B.A.D. contends that J.D.'s refusal to positively identify B.A.D	{ "pile_set_name": "FreeLaw" }
105 Ariz. 380 (1970) 465 P.2d 360 STATE of Arizona, Appellee, v. Robert QUINONES, Appellant. No. 2033. Supreme Court of Arizona, In Banc. February 19, 1970. Rehearing Denied March 24, 1970. Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee. Meyer & Wortman, by Dennis J. Wortman, Phoenix (later substituted by Robert A. Wertsching, Phoenix), for appellant. UDALL, Justice. Robert Quinones (hereinafter referred to as the defendant) appeals from his conviction of the crime of illegal possession of heroin. His appeal is based upon two grounds. Defendant's first ground for appeal is that he was tricked by an arresting officer into giving an incriminating admission of his address. Defendant asserts that the admission into evidence of his statement of his address violated his constitutional rights under the rationale of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 381 Secondly, defendant argues that the state failed to offer sufficient evidence as to whether the amount of narcotics involved was susceptible of use, and further that the trial court erred in its instruction to the jury on what constitutes a usable amount of narcotics. Defendant was arrested on May 28, 1968 pursuant to a valid warrant for petty theft. The warrant was served by three members of the Narcotics Division of the Phoenix Police Department. The arrest took place in a one-room apartment in Phoenix where defendant and three other adults were then present. As soon as he was placed under arrest, defendant was advised of his constitutional rights in the form of "Miranda warnings."[1] Defendant was asked whether he understood the warnings, and he indicated that he did. The officer who administered the warnings then indicated he had no questions for defendant at that time. Immediately after the arrest, the officers seized several articles lying on a table in the room. These articles, associated with the use of heroin, included hypodermic needles, a packet of paper containing a light brown substance, a spoon, a cotton wad and a cup of water. All of the persons in the room, including defendant, were then warned that the officers suspected the presence of narcotics and that everyone in the room was to remain until a test could be run to determine the presence of narcotics. When the test result was positive, all those in the room were arrested for a narcotics violation and a search of the room was instituted. Thereafter, while defendant was still in the apartment, one of the arresting officers asked defendant several routine questions pursuant to filling out a "booking slip". When asked his address, defendant responded that his address was the apartment wherein the evidence of narcotics was found. Defendant here urges that the introduction of this statement as evidence at trial to show possession of narcotics violated his constitutional rights. Defendant argues that the arresting officers obtained this statement by trickery. Defendant's position is that, under the guise of asking routine questions pursuant to the misdemeanor arrest for petty theft, the officer violated defendant's rights by obtaining an incriminating admission relating to a wholly separate felony of narcotics possession. In support of his position defendant relies upon Miranda v. Arizona, wherein the Supreme Court stated as follows: "Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." Miranda v. State of Arizona, 384 U.S. 436 at 476, 86 S.Ct. 1602 at 1629 (1966). We accept defendant's abstract proposition that serious constitutional questions are raised when police officers, under the guise of investigating one crime, ask questions pertaining to an entirely different crime without advising the defendant that he is under suspicion of the second crime. However, the record in this case simply does not show that such circumstances occurred here. The trial judge in this case held a hearing in chambers on the issue of the voluntariness of defendant's statement of his address. At this hearing at least two of the arresting officers testified that defendant was twice given "Miranda" warnings; first when he was arrested on the petty theft warrant, and second, when he was arrested on the charge of possession of narcotics. 382 In addition, as noted above, the evidence showed that as soon as the arresting officers saw objects associated with narcotics in the room, they warned everyone in the room that the presence of narcotics was suspected. At oral argument counsel for defendant commendably stated that this fact had escaped his notice in the record.[2] There can be no question that defendant was fully informed that he was at least under suspicion of the felony of narcotics possession. Defendant's contention here that he was tricked without knowledge of this fact is clearly controverted by the record. Defendant's only further contention with respect to the admissibility of his statement is that even though he had been warned of his constitutional rights, and even though he was aware that he was suspected of narcotics possession, he should have been given some further warning before being asked his address. This contention must be rejected. The trial court determined that defendant's statements were made knowingly, voluntarily and intelligently. Once a defendant is fully and fairly apprised of his rights, there is no requirement that warnings be repeated each time that questioning is commenced. State v. Jennings, 104 Ariz. 6, 448 P.2d 62 (1968); People v. Hill, 39 Ill.2d 125, 233 N.E.2d 367 (1968). Defendant's second ground for this appeal relates to the issue of "usable amount" of narcotics. Defendant argues that the State failed to offer evidence of usable amount, and further that the jury was improperly instructed on this question. The amount of heroin involved here is very small, amounting to only .36 milligrams. Defendant correctly points out that under State v. Moreno, 92 Ariz. 116, 374 P.2d 872, and State v. Urias, 8 Ariz. App. 319, 446 P.2d 18 (1968), where the amount of narcotics involved is so small as to not be within the realm of an uninformed layman's knowledge of usability, there must be evidence presented by the State as to its usability and also an instruction to the jury as to the necessity of finding a usable amount. An examination of the transcript in this case reveals that both of these criteria were met here. This is true despite the fact that the briefs for both parties proceed inexplicably upon the assumption that no testimony of usable amount was presented and no instruction on usable amount was given to the jury. The transcript shows that expert testimony was introduced that the amount of narcotics found "could be effectively used as a narcotic heroin." The instructions to the jury included instructions on "usable amount" substantially identical to those instructions approved by this court in State v. Moreno.[3] We therefore must conclude there is no foundation in the record for the errors charged by defendant. Defendant also suggests that there should have been additional testimony and an instruction on whether the substance was usable "under the known practice of narcotics users." Defendant argues that without such specific evidence and instruction, *383 a conviction could be had on the basis of a small amount of a narcotic substance found in vacuum cleaner sweepings from a floor. This hypothetical situation may well present special problems. But we find no requirement for additional expert testimony or jury instruction under the circumstances of the instant case. See State v. Moreno, supra, State v. Urias, supra. Here the narcotic substance was found in a packet, lying on a table. Moreover there was expert testimony explaining how the substance in the packet could be placed in a form for injection by narcotics users. In addition, the packet itself, containing the actual substance in its original form, was admitted into evidence and shown to the jury. We accordingly must conclude that sufficient evidence was presented on the question of "usable amount", and that the jury was properly instructed on this question. Judgment affirmed. LOCKWOOD, C.J., STRUCKMEYER, V.C.J., and McFARLAND and HAYS, JJ., concur. NOTES [1] These warnings were as follows: "You have the right to remain silent. Anything you say can be used against you in a Court of Law. You have the right to the presence of an attorney to assist you prior to questioning, and to be with you during questioning if you so desire. If you cannot afford an attorney, you have the right to have an attorney appointed for you prior to questioning." [2] Defendant's counsel on appeal did not handle the case at trial. [3] The court instructed the jury in the case before us in pertinent part as follows: "You are instructed that the elements of the crime charged, to-wit, unlawful possession of narcotics are these: (1) The person charged must have been in possession of a substance: (2) The substance must have been a narcotic drug: (3) The substance must have been in such quantity and quality to be susceptible of use as a narcotic: (4) The possessor must have knowledge of the possession of such substance. "If you believe from the evidence beyond a reasonable doubt that the defendant possessed a narcotic drug known as heroin, then you are instructed the weight or amount of the drug is immaterial so long as you find that there was a sufficient amount of such drug as to be usable as a narcotic." [Emphasis supplied]	{ "pile_set_name": "FreeLaw" }
669 S.W.2d 85 (1984) STATE of Tennessee, Plaintiff-Appellee, v. Robert D. FRANCIS, Defendant-Appellant. Supreme Court of Tennessee, at Jackson. April 2, 1984. 86 William M. Leech, Jr., Atty. Gen. & Reporter, Raymond S. Leathers, Asst. Atty. Gen., Nashville, of counsel, for plaintiff-appellee. Eugene D. Lyne, Leland Carter, Memphis, for defendant-appellant. OPINION DROWOTA, Justice. In this appeal from a conviction of sexual battery, defendant contends, inter alia, that the State's use of the missing witness inference during closing argument was prejudicial error. We granted defendant's Rule 11 application for permission to appeal in order to determine whether the State's comment on the failure of the defendant to call his six-year-old daughter as a witness was a proper subject matter of argument. We hold that the trial court erred in allowing the State to make this argument before the jury. We reverse the conviction and remand the case for a new trial. This case arose in 1981 when a Shelby County grand jury returned three indictments against the defendant, Robert D. Francis, for sexual battery of three girls under the age of thirteen. The defendant, a 43 year-old father of two, was alleged to have committed the unlawful acts upon the three neighborhood children while they played in his back yard during a period between May 1, 1980 and August 26, 1981. The trial judge granted the State's motion to consolidate the three indictments pursuant to Rule 13 of the Tennessee Rules of Criminal Procedure. At trial a jury found the defendant guilty of sexual battery as to each of the indictments. The defendant was sentenced to a total of four to seven years imprisonment in the state penitentiary. The defendant's motion for a new trial and a petition for a suspended sentence 87 were both denied. The Court of Criminal Appeals affirmed the conviction. During the summer of 1980 and 1981, Kelli Dobry, her sister Denise, and Cassandra Rene Cobb visited the defendant's home several times each week to play with his two children.[1] The children usually played in the defendant's back yard where a gym set and metal shed were located. The defendant, who worked for the Memphis fire department, often played with the children during the days when he was off from work. Kelli Dobry testified at trial that the defendant touched her buttocks and breasts. These acts took place on several occasions and usually occurred in the metal shed. Additionally, she stated the defendant exposed himself and touched his private parts in her presence. The incidents complained of took place in the summer of 1980 and 1981. The testimony of Denise Dobry and Cassandra Rene Cobb was similar to Kelli's account. Denise Dobry testified that the defendant touched her private parts and exposed himself in her presence on several occasions. Cassandra Rene Cobb testified that the defendant placed his hand in her vagina. A pediatrician, who had treated Cassandra for several years, testified that she examined the child on August 27, 1981 and found that Cassandra's hymenal ring had been torn. While the injury could have been caused in numerous other ways, it was consistent with the insertion of an object like a finger into the vagina. The children did not immediately notify their parents of these incidents because they were afraid of how their parents would react. On August 26, 1981, Kimberly Scott, a thirteen year old who also lived in the neighborhood, placed a letter, which she had typed, in the Dobry's mailbox. After receiving the letter, the parents of these children asked them about the defendant's conduct and the children told them what had happened. As a result of this discussion, the parents went to the police. While the defendant denied these charges, there was considerable testimony from the three girls that the defendant's children were present when the acts took place. The defendant's son, Robert Donald Francis, Jr., who was eight years old at trial, testified that he had never seen his father expose himself in his presence or in the presence of other children. Donald also stated he had never seen his father touch any of the girls under their shorts. Heather Francis, who was six years old at the time of the trial and was four years old when the incidents were said to have taken place, was not called as a witness at trial. On cross-examination by the State, Helen Francis, the defendant's wife, testified that she and her husband were in the process of training Heather to tell the truth and not to tell lies. Helen Francis initially testified she did not know whether her daughter knew the difference between truth and untruth. She went on to say, however, that while Heather was "very immature," she thought Heather knew the difference between telling the truth and telling lies. The State avers that the "mother's testimony did not conclusively establish that [Heather] did not know the difference between truth and untruth." Mrs. Francis further testified that she had never seen her husband mistreat any of the children. In its closing argument, the State called the jury's attention to the fact that the appellant had failed to call his six-year-old daughter as a witness. In pertinent part, the argument was as follows: MR. NEWSON: The children [Don and Heather] were present, did they say that all the children were standing there and looking at us when this was occurring? Specifically, Denise said that the defendant and Heather were in the shed when this happened. And, I asked I asked Mrs. Francis about Heather. She's 88 [Heather] been up here a few days, she's sitting here listening to me now, and that's regrettable. But she can't tell the difference between truth and untruth. That's what they said. That's why they didn't put her on the stand. Wonder what she would have told us? Mr. Lyne (appellant's counsel): Your honor, ... I want to object. That's improper argument as to MR. NEWSON: That is not, Your honor. (Simultaneous speech). THE COURT: Well, as I said before when you were arguing, these ladies and gentlemen know arguments are not evidence, so let's just go ahead... . MR. NEWSON: Is it not in the evidence that that little girl was present with Denise when her father did this? It is in evidence. And if it's in evidence it's proper for me to argue it. Why didn't she take that witness stand? Maybe they were afraid she might tell the truth. Maybe. It can't be to keep her from having to hear all of this because she's sitting here listening to all of it right now... . The defendant contends that the trial court erred in allowing the State to make this argument before the jury, and that this error substantially affected the verdict. The Court of Criminal Appeals concluded there was no error, stating that a proper foundation for the argument was laid. Specifically, the appellate court noted "there was evidence that the daughter had knowledge of material facts; that a relationship existed that would naturally incline the witness to favor the defendant; and that the daughter was in the courtroom and was therefore available." The Missing Witness Rule It is well-established that a prosecutor may comment upon the failure of a defendant to call an available and material witness whose testimony would ordinarily be expected to favor the defendant.[2] The United States Supreme Court recognized this common law rule in Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), stating that "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would have been unfavorable." 150 U.S. at 121, 14 S.Ct. at 41. Similarly, this Court has held that a party may comment about an absent witness when the evidence shows that "[1] the witness had knowledge of material facts, [2] that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and [3] that the missing witness was available to the process of the Court for trial." Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979). While the Graves Court spoke of the missing witness rule in terms of creating a "presumption," the rule is now generally characterized as authorizing a permissive inference. State v. Jones, 598 S.W.2d 209, 224 (Tenn. 1980); State v. Sanderson, 550 S.W.2d 236, 238 (Tenn. 1977); National Life & Accident Ins. Co. v. Eddings, 188 Tenn. 512, 518, 221 S.W.2d 695 (1949); See C. McCormick, McCormick's Handbook of the Law of Evidence § 272, at 658 (2d ed. 1972). The mere fact that a party fails to produce a particular person who may have some knowledge of the facts involved does not justify application of the inference against him.[3] However, when it can be 89 said "with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his testimony," an inference may be drawn by the jury that the testimony would have been unfavorable. Burgess v. United States, 440 F.2d 226, 237 (D.C. Cir.1970). Due to the potentially critical effect of the missing witness rule, the Delk requirements set out above are to be strictly construed, particularly when the rights of a criminal defendant may be affected. The reason for this caution	{ "pile_set_name": "FreeLaw" }
726 S.E.2d 708 (2012) 315 Ga. App. 227 In the Interest of R.W., a child. No. A11A2177. Court of Appeals of Georgia. March 27, 2012. 710 Melissa Elizabeth Lawrence, Craig T. Pearson, John Thomas Durden, Jr., for the Interest of R.W. PHIPPS, Presiding Judge. After the burglary of an Evans County pharmacy, R.W. was adjudicated delinquent and ordered into restrictive custody. R.W. appeals from the juvenile court's order of adjudication and its order of commitment and restrictive custody. R.W. claims: that the adjudication of delinquency is erroneous because the evidence was insufficient to corroborate the testimony of his accomplice; that his adjudication and disposition were "tainted" by the filing into the record of extraneous and prejudicial material; that the juvenile court was predisposed to order him into restrictive custody and improperly relied on facts not in evidence; and that the juvenile court's commitment order was not based on a proper analysis of the factors which, by statute, it was required to consider. For reasons that follow, we find no reversible error and affirm. The evidence presented at the adjudicatory hearing shows that on June 12, 2010, approximately 27 guns were stolen from Kemp's Pharmacy. According to Jordy Melvin, he, R.W., and Dewayne Evans broke the store window with a barrel, entered the premises, smashed the gun cases inside, and put the guns from the cases, including multiple silver revolvers, into a bag. They divided the proceeds of the crime among themselves, and R.W.'s share was eight or nine guns. Also on June 12, 2010, officers responded to a report of fighting at the Hillside Apartments.[1] After they arrived, officers saw R.W. running away from the apartments. A door was open to one of the rooms, and officers entered and found a .38 caliber pistol and bags of marijuana inside. The pistol was identified as one of the weapons stolen from the pharmacy. Officers later learned the apartment belonged to a Mr. Freeman. Charles Freeman testified that on June 12, his girlfriend dropped him and R.W. off at the Hilltop Apartments, where Freeman went to his brother's room and knocked on the door. When his brother did not answer, Freeman went to another room, identified alternately as his aunt's room or his uncle's room. The police later arrived at the apartments. According to Freeman, "I was in my uncle['s] room getting away from my girlfriend.... So I ... went in there, and my uncle [told me] they was chasing us ..." It appears that the police searched Freeman's brother's room. Freeman was not specific about where R.W. went after the two arrived at the apartments, testifying that "I was just out there. And [R.W.] was out there too." Monique Moody, who considered R.W. "like a nephew," testified that the morning after the burglary she saw R.W. and Javan Wise in her living room with several guns. According to Moody, she could not count the number of guns, but there were more than two. She was unable to say there were more than five, but there were not more than ten, and one of the guns was "shiny silver." Moody did not keep any guns in her house, and, upon seeing R.W. and Wise with the weapons, she asked them to leave. According to Moody, they had to "gather them up" before they left. 711 1. R.W. contends that the evidence was insufficient to corroborate Melvin's testimony that he participated in the burglary. R.W. asserts that without such corroboration the evidence was insufficient to establish that he was delinquent. We disagree that Melvin's testimony was not sufficiently corroborated. "To establish delinquency based on acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts."[2] Accomplice testimony must be corroborated in felony cases where the only witness is the accomplice.[3] In addition, "testimony which concerns the identity of other participants must be corroborated by some means independent of the testimony of the accomplice."[4] "But only slight evidence from an extraneous source as to a defendant's identity and participation is needed to corroborate an accomplice's testimony. And, such evidence may be entirely circumstantial."[5] Nevertheless, "the corroborating evidence must do more than cast on the defendant a grave suspicion of guilt."[6] Here, the evidence showed that on June 12, 2010, the same day as the burglary, shortly after the arrival of police R.W. ran from apartments where a gun stolen from the pharmacy was later found; thus, a trier of fact could conclude that R.W. fled from police and that his flight showed consciousness of guilt.[7] "The corroborating evidence... may include defendant's conduct before and after the crime was committed."[8] The state, however, did not offer any evidence that R.W. fled from the room containing the weapon, and so R.W.'s flight from police, if that were the only corroborative evidence, may have cast only a suspicion that R.W. was involved in the burglary. But given the peculiar nature of the crime, in which numerous guns were stolen, and the evidence that very shortly after the burglary R.W. was seen in possession of between three and ten guns, the trier of fact could infer that R.W. was in unexplained possession of the proceeds of the crime.[9] Viewed in a light most favorable to the delinquency adjudication,[10] the extraneous evidence, even if slight and entirely circumstantial, connected R.W. to the burglary.[11] "If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient."[12] Because Melvin's testimony was corroborated, the evidence was sufficient for any rational trier of fact to find R.W. delinquent.[13] 712 2. R.W. argues that his trial and disposition were "tainted" by the filing of an "investigation packet" into the record. The packet contained police reports and interviews that R.W. claims were prejudicial and inadmissible. R.W. posits that the state, by filing the investigation packet, invited the trier of fact to consider it, and that prejudice should be presumed and his conviction reversed. But R.W.'s argument is based on nothing more than unsupported speculation. "Because this was a bench trial, there is a presumption, in the absence of a strong showing to the contrary, that the trial judge sifted the wheat from the chaff, ignored illegal evidence and considered only legal evidence."[14] The presumption has "no place where it affirmatively appears to the contrary,"[15] but R.W. points to nothing that affirmatively shows the juvenile court improperly considered the investigation packet. Accordingly, we find no error. 3. After R.W. was adjudicated delinquent, the juvenile court held a hearing and thereafter confined R.W. to a youth development campus for 44 months and 10 days, and ordered him released on his 21st birthday. R.W. argues that the juvenile court erred in its commitment order because the court was predisposed to order him into restrictive custody, made conclusions without a proper basis, relied on facts not in evidence, and failed to properly analyze the factors set forth in OCGA § 15-11-63(c). R.W. does not challenge the juvenile court's conclusion that his adjudication of delinquency constituted a designated felony act.[16] "Where a child is found to have committed a designated felony act, the order of disposition ... shall include a finding based on a preponderance of the evidence as to whether ... the child does or does not require restrictive custody under [OCGA § 15-11-63]."[17] [T]he court must consider five factors in determining whether to order restrictive custody, including the needs and best interest of the juvenile; his record and background; the nature and circumstances of the offense; the need for community protection; and the age and physical condition of the victim.[18] The weight of each factor, and the ultimate decision about whether restrictive custody is warranted, is within the discretion of the juvenile court.[19] (a) R.W. claims that the juvenile court erred in its commitment order because it was predisposed to order him into restrictive custody. After the delinquency adjudication hearing, the judge remarked that he "plan[ned].. to give [R.W.] the exact same sentence as the last one," but must "go through the different things on the record...." Consequently, any alleged predisposition to commit R.W. to restrictive custody is belied by the court's pronouncement of intent to review the record before issuing any ruling. The juvenile court, following a hearing and "upon considering the evidence presented, made the requisite finding in its order to determine whether restrictive custody was required."[20] We find no error. (b) R.W. further complains that the judge made certain statements at the disposition hearing that were not warranted by the evidence. The judge commented during the disposition hearing that incarceration 713 was the only way to protect the county from "all these crimes you've done and probably a bunch of them we don't know about yet." The judge also commented that because R.W. helped steal the guns, those guns were used in other crimes, and that "[w]hile I don't know the exact causation, one girl was shot and now paralyzed." While it appears these two statements may have contained	{ "pile_set_name": "FreeLaw" }
986 F.Supp. 409 (1997) ST. PAUL MERCURY INS. CO., v. WILLIAMSON, et al. No. CIV. A. 1:93-1902. United States District Court, W.D. Louisiana, Alexandria Division. October 22, 1997. 410 411 412 Marshall G. Weaver, Brian B. Ripple, Henican James & Cleveland, Metairie, LA, Frederick B. Alexius, Provosty Sadler & deLaunay, Alexandria, LA, Gary J. Rouse, Ronald L. Riggle, Monroe & Lemann, New Orleans, LA, Gregory L. Jones, Farrar Law Firm, Pineville, LA, for St. Paul Mercury Ins. Co. J. Ransdell Keene, Office of J. Ransdell Keene, Shreveport, LA, Christopher A. Hostage, Terrance G. Reed, Reed & Hostage, Washington, DC, Roark M. Reed, Waxahachie, TX, for Robert Williamson. J. Ransdell Keene, Office of J. Ransdell Keene, Shreveport, LA, Terrance G. Reed, Reed & Hostage, Washington, DC, Roark M. Reed, Waxahachie, TX, for Sonya Williamson. J. Ransdell Keene, Office of J. Ransdell Keene, Shreveport, LA, for Arlone Belaire. Seahorse Farms, Lafayette, LA, pro se. W. Gerald Gaudet, Robert M. Kallam, Bradley J. Haight, Vorrhies & Labbe, Lafayette, LA, Nancy J. Marshall, Ambrose V. McCall, James A. Nugent, Deutsch Kerrigan & Stiles, New Orleans, LA, Campbell E. Wallace, Spyridon, Koch et al, Metairie, LA, for Richard Vale. W. Gerald Gaudet, Robert M. Kallam, Bradley J. Haight, Vorrhies & Labbe, Lafayette, LA, Campbell E. Wallace, Spyridon Koch et al, Metairie, LA, for Haynes Best Western of Alexandria Inc., Best Western Intern. Inc., H. L. Haynes, H.L. Haynes, Mrs., H & L Holding Co., American General Fire & Casualty, Maryland Casualty Co. W. Gerald Gaudet, Robert M. Kallam, Bradley J. Haight, Vorrhies & Labbe, Lafayette, LA, for H L & H Holding Co. MEMORANDUM RULING AND JUDGMENT TUCKER L. MELANÇON, District Judge. Before the Court are five Motions for Summary Judgment filed by the various counterdefendants in this case. Counterdefendant Best Western International (BWI) has filed two partial motions for summary judgment, one seeking dismissal of counterplaintiffs' claims pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO) and the other seeking dismissal of counterplaintiffs' state law claims. Counterdefendants St. Paul Mercury Insurance Company and Richard Vale have each filed single motions for summary judgment seeking dismissal of all counterplaintiffs' claims. Finally, counterdefendants Mr. and Mrs. H.L. Haynes, H & L Holding Company, Haynes Best Western of Alexandria, American General Fire and Casualty Company, Maryland Casualty Company, and Best Western International collectively filed a summary judgment motion seeking dismissal of all counterplaintiffs' claims. For the reasons 413 that follow, all of the above motions are GRANTED. History A. Procedural Background The consolidated actions forming this case arise from the prosecution of an allegedly fraudulent tort claim by Sonya J. Williamson and her husband Robert Williamson. In 1990, Sonya Williamson filed a personal injury action in the Civil District Court for the Parish of Orleans against Haynes Best Western Motel of Alexandria (HBW), its insurers and its related entities. Williamson alleged that "she was electrocuted on 21 July 1989 while attempting to turn off the light in her room in the [HBW]." Williamson v. Haynes Best Western of Alexandria, 688 So.2d 1201, 1202 (La.Ct.App. 4th Cir.1997). The jury found the accident was either staged or fraudulent, and judgment was entered in favor of the defendants. Williamson, 688 So.2d at 1204. On January 29, 1997 the Louisiana Fourth Circuit Court of Appeal affirmed the jury's verdict. Id. at 1242. The Louisiana Supreme Court denied applications for writs filed by the Williamsons on June 20, 1997, and the state court judgment is now final. Williamson v. Haynes Best Western of Alexandria, 695 So.2d 1355 (La.1997). The Williamsons also have initiated a separate state court action in Civil District Court for the Parish of Orleans, seeking to nullify the judgment rendered in Sonya Williamson's personal injury action. St. Paul Mercury Insurance Company (St.Paul) was one of the named defendants in Sonya Williamson's personal injury action. St. Paul instituted this action on November 4, 1993, naming as defendants Robert Williamson, Arlone Belaire, Robert Williamson's mother, and Seahorse Farms, a Williamson family business. R. 1, paras 4-6. On December 12, 1994, St. Paul amended its complaint to add Sonya Williamson as a defendant. R. 76. St. Paul alleges that the Williamsons staged the electrical shock accident and that the Williamsons and Belaire have a lengthy history of asserting fraudulent personal injury claims. See R. 1, Exhibit A. St. Paul seeks recovery of the expenses incurred in connection with the defense of Sonya Williamson's personal injury action, and other damages, under civil RICO, 18 U.S.C. § 1961, et seq., and under state law. R. 1, paras 51-52. On September 25, 1996, the Williamsons filed a counterclaim against St. Paul, HBW, Mr. and Mrs. H.L. Haynes, H & L Holding Co. (HLH), American General Fire Company (American), Maryland Casualty Company (Maryland) and Richard Vale. R. 171. Vale was one of the defense attorneys in Sonya Williamson's personal injury action. The remaining counterdefendants are Best Western owners, entities or insurers that were named defendants in the personal injury action. The counterclaim generally alleges that the fraud defense asserted in Sonya Williamson's personal injury action, and as a basis for recovery in this action, is itself fraudulent. R. 273, paras 3-5. The Williamsons assert civil RICO violations against Vale, and they claim the other counter-defendants are vicariously liable and liable as aiders and abettors to Vale's RICO violations. R. 273, paras 55-60. Finally, the Williamsons bring nine separate state law claims against the counterdefendants. R. 273, paras 69-107. As a protective measure, the Williamsons filed a separate action in this court against the counterclaim defendants asserting the same bases of recovery (Civil Action No. 96-2263). That separate action has been consolidated with this case. The Court will consider the motions for summary judgment as addressing both the claims asserted in the counterclaim and the claims forming the basis of the consolidated case. For simplicity's sake, in this opinion, the Court will refer to the movants collectively as counterdefendants and to the Williamsons as counterplaintiffs. When the counterclaims were first filed, counterdefendants filed motions to dismiss based upon failure to state a claim upon which relief could be granted. R. 181; R. 200. On April 3, 1997, Magistrate Judge Roy S. Payne issued a Report and Recommendation that all of the motions to dismiss be denied. R. 258. That Report and Recommendation was adopted by this Court on May 9, 1997. R. 300. Magistrate Judge *414 Payne also instructed counterplaintiffs to file an amended counterclaim. R. 258, p. 12. Counterplaintiffs filed their Second Amended Answer and Second Amended Complaint on April 23, 1997. In response, counterdefendants St. Paul and Vale again filed motions to dismiss on May 29, 1997 and June 17, 1997, respectively. R. 319; R. 343. A Report and Recommendation was issued by Judge Payne on September 25, 1997. R. 678. Magistrate Judge Payne recommended that the motions to dismiss be denied in all respects except with regard to the counterplaintiffs' state law claim pursuant to Louisiana Revised Statute 12:1220, which he recommended be dismissed with prejudice. R. 678, p. 11. This Court adopted Magistrate Judge Payne's Report and Recommendation on October 21, 1997. Finally, there has been related litigation in the Eastern District of Louisiana. In 1993, the Williamsons sued a number of defendants, including present counterdefendants, alleging a conspiracy to deprive the Williamsons and others of their civil rights. Sonya Williamson, et al. v. Ellis Pisciotta, et al., Civil Action No. 93-3729. By motion of the Williamsons, the civil rights claims against all defendants except Maryland Casualty Company, Ellis Pisciotta, Don Dixon and Larry Reagan were dismissed with prejudice. Williamson, 688 So.2d at 1204. U.S. District Judge Ginger Berrigan dismissed the claims against Maryland, Pisciotta, Dixon and Reagan without prejudice. Id. More recently, in January, 1997, U.S. District Judge Edith Brown Clement enjoined the Williamsons from asserting in the state action in nullity, or in any other action,	{ "pile_set_name": "FreeLaw" }
493 F.Supp. 1105 (1979) B & J MANUFACTURING COMPANY, Plaintiff, v. HENNESSY INDUSTRIES, INC., Defendant. No. 73 C 2174. United States District Court, N. D. Illinois, E. D. December 19, 1979. 1106 1107 1108 James P. Hume, Hume, Clement, Brinks, Willian & Olds, Ltd., Jerry Hosier, Hosier, Niro & Daleiden, Ltd., Chicago, Ill., for plaintiff. James W. Kissel, Sidley & Austin, James C. Wood, William A. Van Santen, Jr., Wegner, Stellman, McCord, Wiles & Wood, Chicago, Ill., for defendant. MEMORANDUM OPINION FLAUM, District Judge: This cause having been tried by the court without a jury, the court, having heard the testimony and examined the exhibits properly placed in evidence by the parties, having heard the arguments of counsel, and being otherwise fully advised in the premises, hereby enters the following findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52(a). This court has jurisdiction over this matter under 28 U.S.C. § 1338(a). Venue is admittedly proper in this district. Plaintiff, B & J Manufacturing Co. (B & J), is an Illinois corporation having a principal office and place of business at 700 West 193rd Street, Glenwood, Illinois. Hennessy Industries, Inc. (Hennessy) is a Delaware corporation having a principal office and place of business at 520 Lively Boulevard, Elk Grove Village, Illinois. B & J is the holder of three patents viz., United States Patent 3,552,469 (the '469 patent), entitled "Tire Bead Seater", United States Patent 3,675,705 (the '705 patent), entitled "Tire Bead Seating and Inflation Apparatus", and United States Patent 3,805,871 (the '871 patent), entitled "Tire Mounting, Bead Seating and Inflation Apparatus and Method of Use". It alleges that these patents have been infringed by Hennessy. Hennessy denies the charge of infringement and makes an alternative affirmative defense of license. In addition, it claims that those claims of the patents that it is said to have infringed are invalid. For the reasons set forth below, the court holds that all of the contested claims of the three patents are valid, that the accused devices infringe the claims of those patents that B & J alleges they infringe, and that the sale by Hennessy of the accused devices as kits and their sale in any form after its receipt of the latter from counsel for B & J dated September 16, 1974, constituted unlicensed infringement. The court rules, further, that an accounting must be held to ascertain the compensation owing to B & J. Treble damages and attorney's fees will not be awarded to B & J. It is, however, entitled to an award of costs. BACKGROUND The tubeless tire made its first appearance on American automobiles in the early 1109 1950's. By the middle of that decade, the tubeless tire had become standard equipment on passenger cars manufactured in this country. Indeed, it also replaced tires equipped with inner tubes for use on trucks and other off-the-road vehicles. The introduction of tubeless tires led to the appearance of a new problem in tire inflation. When its upper and lower beads[1] are in sealing contact with the wheel rim, a tubeless tire can be inflated through the valve stem located in the wheel.[2] However, it often happens that, owing to the vicissitudes of, inter alia, the shipping, storing, or packaging of a tubeless tire, when it has been mounted on a wheel, at least one of its beads is found not to be in sufficient sealing contact with the wheel rim. In such a case, the inflation of the tire cannot, without the use of some mechanical aid, be accomplished entirely through the valve stem, as the air injected into the cavity would escape through the opening, or window, between the unseated bead and the wheel rim proximate to it. Thus, a new method had to be devised to facilitate the inflation of these problem tires. As a result of an industry-wide effort, numerous devices were fashioned to accomplish this task. These apparatus all required the creation of a mechanical seal between the tire bead and the wheel rim. Some of them involved the use of a constricting band, by means of which the circumference of the tire sidewall was constricted, thereby causing the interior rim of the sidewall, the tire bead, to move into sealing engagement with the wheel rim. Others operated by enclosing the window within a larger sealed space, and then seating the tire beads by injecting air into this closed container. Neither of these methods of tubeless tire inflation were without its drawbacks. The use of constrictor bands was always hazardous for the would-be tire inflator. The appearance of radial ply and steel-belted radial ply tires on the market added to the problem, as they rendered constrictor bands ineffective and/or harmful to the tires themselves. Difficulties also attended the use of many of the devices that achieved a mechanical seal by the second means mentioned above. For instance, to employ a device on the order of the Omega Band bead seater marketed by Bruce Caulkins, Inc. (BCI), patented as United States Patent 3,280,880, entitled "Method of and Apparatus for Inflating Tubeless Tires", filed January 29, 1965 and issued on October 25, 1966, it was necessary to have a different mechanical sealing part for each tire, each rim diameter, and each rim size. The apparatus disclosed by the Muller patent, United States Patent 3,461,938, entitled "Tire Mounting and Inflation System", filed March 9, 1967 and issued on August 16, 1969, required the application of 10,000 lbs. of pressure against the wheel rim in order to seat the beads of and inflate "problem" tubeless tires. Bruce D. Caulkins (Caulkins) holds a Bachelor's degree in science and a Master's degree in physics, with minors in chemistry and mathematics. He worked for Uniroyal between the end of his formal education in 1929 and 1945, in connection with its business of manufacturing and selling tires. In 1945, he joined the Atlas Supply Company (Atlas), for whom Uniroyal had manufactured tires during at least the latter portion of Caulkins' tenure with Uniroyal. At Atlas, Caulkins was responsible for selecting the tires and equipment relating thereto that would be made available to Standard Oil service stations under the Atlas brand name. Caulkins returned to Uniroyal in 1960 as the Director of Quality Control of their automobile tire manufacturing operations. He continued to work for Uniroyal until August 1, 1963, at which time he commenced devoting himself to the affairs of BCI, a basically one-person enterprise that he had incorporated in March, 1963. From the beginning, BCI marketed tire-related products developed by Caulkins. In 1965, BCI started selling the aforementioned *1110 Omega Band, which was the invention of Caulkins and others. This product was a commercial success, and, in 1968, BCI recruited Caulkins' friend Lee M. Corless (Corless) to provide some office help. Corless received a B.S. in mechanical engineering from Michigan State University in 1930. With the exception of the war years, during most of which he headed an Army school for motor mechanics, Corless spent the next thirty-three years in the employ of several American automobile manufacturing companies. Principally, his duties with them involved experimental automotive engineering. Not long after becoming associated with BCI, Corless began to go out into the field to talk to BCI's customers and discuss with them whatever problems that they might have had with BCI's products. At that time, BCI was primarily selling Omega Bands, and so Corless became educated in the above-mentioned problems involved in the inflation of tubeless tires. He came to the conclusion that there had to be a "better answer" to those problems than the mechanical sealing devices then in use, and he set out to find it. Corless' experiments resulted in the issuance to him of the three patents in suit. He assigned his rights under the patents over to BCI, which, on June 1, 1971, granted Hennessy a nonexclusive license under the then-issued '469 patent, the then-pending application which shortly thereafter issued as the '705 patent, and the about-to-be-filed application which matured into the '871 patent. Subsequently, in July, 1971, B & J acquired BCI's entire right, title and interest in and to the patents in suit. The Coats Company, Inc. (Coats), a subsidiary of Hennessy, is its supplier and manufacturer of tire changing machines. Coats tire changing machines are sold by Hennessy with or without tubeless tire inflation apparatus, according to its customers' specifications. Hennessy also markets the Coats-made tire inflation apparatus parts sold separately for field installation on Coats brand tire changers. These OEM machines and kits are the devices accused of infringement in this suit.[3] PATENT VALIDITY The '469 Patent The application that lead to the issuance of the '469 patent was filed on February 16, 1969. The application was amended in January, 1970, before the Patent Office had taken any action thereon, at the request of Corless. The patent was issued	{ "pile_set_name": "FreeLaw" }
88 Ill. App.3d 272 (1980) 410 N.E.2d 404 THE PEOPLE ex rel. JULIA LARSON et al., Plaintiffs-Appellants, v. EDWARD J. ROSEWELL, Treasurer and Ex-Officio County Collector of Cook County, Defendant-Appellee. Nos. 79-1086, 79-1217 cons. Illinois Appellate Court First District (2nd Division). Opinion filed September 2, 1980. Bernard Allen Fried, of Chicago, for appellants. Bernard Carey, State's Attorney, of Chicago (Paul P. Biebel, Jr., and Michael F. Baccash, Assistant State's Attorneys, of counsel), for appellee. Judgment reversed. Mr. PRESIDING JUSTICE PERLIN delivered the opinion of the court: This appeal is a consolidation of two separate actions involving the construction of section 235a of the Revenue Act (Ill. Rev. Stat., 1978 Supp., 273 ch. 120, par. 716a), commonly referred to as the Scavenger Act. At issue is whether the Scavenger Act's provision for the publication by the county collector of "an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or part of the general taxes for each of 5 or more years are delinquent" is directory or mandatory, such that the county collector could choose to omit from the advertisement certain properties because actions for the unpaid taxes were pending against the owners of those properties. For reasons hereinafter set forth, we reverse the judgment of the circuit court of Cook County. Because the nature of the question presented for review does not require an elaborate recitation of the factual bases for each action herein consolidated, an abbreviated version will suffice. Approximately 100 parcels of property upon which the general taxes were delinquent for the year 1977 and for at least four years prior thereto were omitted by the county collector from his advertisement giving notice of the intended application for judgment for sale pursuant to the Scavenger Act. Plaintiffs-appellants Julia Larson and others filed a petition for a rule to show cause why the county collector "should not be held to comply with" the provisions of the Scavenger Act and include in his advertisement those 100 parcels. The trial court dismissed the petition with prejudice finding that "[t]he proper construction would be to view [section 235a] as directory rather than mandatory, and permit [the county collector] to use his judgment in utilizing any appropriate method of dealing with tax delinquent property." Objector-appellant, Northern Illinois Industrial Properties, Inc., filed an objection to the county collector's application for judgment and order of sale requesting that the trial court dismiss the application or modify the application to include the omitted 100 parcels. The trial court held "that the duties imposed on the County Collector under the provisions of the Scavenger Act, Section 235a, as amended, of the Revenue Act, are not mandatory but discretionary" and accordingly overruled the objection. The Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 482 et seq.) provides two basic methods to enforce the payment of taxes levied upon real property: an in rem proceeding against the property; and an in personam proceeding against the owner. The in rem proceeding encompasses two different and distinct statutory actions. The first type of in rem proceeding commonly referred to as the annual tax sale, is authorized by section 225 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 706). Such a sale for the full amount of delinquent taxes may occur "[a]t any time after the first day of September next after all of such delinquent taxes on lands and lots shall become due in any year, * ." The second type of in rem proceeding is an action instituted pursuant to section 235a of the Revenue 274 Act (Ill. Rev. Stat. 1977, ch. 120, par. 716a) which is commonly referred to as the Scavenger Act. Section 235a, unlike section 225, requires that tax delinquency continue for a period of five years or more. Property subject to the Scavenger Act is sold to the highest bidder, even though the bid may be less than the full amount of the unpaid taxes. Section 275 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 756) authorizes an action by the county board to recover from the owner of tax delinquent property which has been forfeited to the State[1] the full amount of taxes due. Normally the entire tax liability for real estate would be met through a judgment and sale of the property pursuant to section 225. (People v. Chicago Title & Trust Co. (1979), 75 Ill.2d 479, 486, 398 N.E.2d 540.) However, in People v. Chicago Title & Trust Co., our supreme court at pages 486-87 acknowledged the limitations of the tax sale. "[These cases] have arisen however, because, for an increasing number of inner-city parcels, the marketable price is well below the outstanding tax bills. (See J. Lawlor, Real Property Tax Delinquency and the Rehabilitation of Multi-Family Housing Stock in Chicago, Illinois: The Role of the Collection Provisions of the Illinois Revenue Act, 26 De Paul L. Rev. 1 (1976).) There simply are no buyers willing to pay taxes in order to obtain the property. As a consequence, the property has been forfeited to the State and the tax bills remain unpaid." The Revenue act apparently anticipates that some property will not be purchased at the annual tax sale and therefore will be forfeited to the State. As a result supplementary statutory procedures such as the action for unpaid taxes and the scavenger sale were enacted to serve as a "back stop" for property which was not purchased at the annual tax sale. Section 275 which authorizes the action for unpaid taxes provides in pertinent part: "The county board may, at any time, institute suit in a civil action in the name of the People of the State of Illinois in the circuit court for the whole amount due for taxes and special assessments on forfeited property; * * ." (Emphasis supplied.)[2] Section 235a, the Scavenger Act, provides in pertinent part: "At the same time the County Collector annually publishes an advertisement giving notice of the intended application for judgment for sale of lands and lots for unpaid general taxes as provided in Section 225 of this Act, he shall in counties with a population of 275 2,000,000 or more, and shall in other counties if the county board by resolution so orders, also publish an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or a part of the general taxes for each of 5 or more years are delinquent as of the date of the advertisement. In no event, however, may there be more than 2 consecutive years without a sale under this Section. The term delinquent also includes forfeitures. The County Collector shall include in the advertisement and in the application for judgment for sale under this Section the total amount of all general taxes upon those tracts of land or lots which are delinquent as of the date of the advertisement. However, in lieu of a single annual advertisement and application for judgment for sale under this Section the County Collector may, from time to time, beginning on the date of the publication of the advertisement giving notice of the intended application for judgment for sale of lands and lots for unpaid general taxes as provided in Section 225 of this Act and prior to the first day of August of the next year, publish separate advertisements and make separate applications, in each which advertisement and application shall be included the tracts of lands and lots required to be sold pursuant to this Section which are described in one or more volumes of the delinquent list. Such separate advertisements and applications shall, in the aggregate, include all the tracts of land and lots which otherwise would have been included in the single annual advertisement and application for judgment for sale pursuant to this Section." Section 235a also provides that "[t]he remedy herein provided is in addition to other remedies for the collection of delinquent taxes." The general rule governing whether the provisions of statute are to be construed as mandatory or directory was enunciated in French v. Edwards (1871), 80 U.S. (13 Wall.) 506, 511, 20 L.Ed. 702, 703, and expressly adopted by our supreme court in People v. Jennings (1954), 3 Ill.2d 125, 127, 119 N.E.2d 781, and in Andrews v. Foxworthy (1978), 71 Ill.2d 13, 19-20, 373 N.E.2d 1332, as follows: "There are, undoubtedly, many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions *276 prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise."	{ "pile_set_name": "FreeLaw" }
105 F.3d 663 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Cedric L. ROULETTE, Appellant. No. 96-2542WM. United States Court of Appeals, Eighth Circuit. Submitted Dec. 31, 1996.Filed Jan. 8, 1997. Before FAGG, WOLLMAN, and MURPHY, Circuit Judges. PER CURIAM. 1 Cedric L. Roulette appeals the sentence imposed by the district court. Having reviewed the record, we reject Roulette's contention that the district court improperly enhanced Roulette's sentence for possession of a firearm. We also reject Roulette's argument that the sentence imposed was vindictive. The district court's sentence was correct and further discussion is not warranted. We affirm. See 8th Cir. R. 47B.	{ "pile_set_name": "FreeLaw" }
594 F.Supp. 514 (1984) NORFOLK SOUTHERN CORPORATION, et al., Plaintiffs, v. Charles M. OBERLY, III, et al., Defendants. Civ. A. No. 84-330. United States District Court, D. Delaware. September 25, 1984. 515 David S. Swayze, and Susan C. Del Pesco, of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for plaintiffs; Jeffrey S. Berlin, David E. Menotti, Russell E. Pommer, Robert C. Fisher, and Mark E. Martin, Elizabeth A. Campbell, Verner, Lipfert, Bernhard and McPherson, Chartered, Washington, D.C., A. Gayle Jordan, Norfolk, Va., of counsel. Fred S. Silverman, Regina M. Mullen, John J. Polk, and Ellen R. Chaikin, Dept. of Justice, Wilmington, Del., for defendants. OPINION LONGOBARDI, District Judge. The Plaintiffs, Norfolk Southern Corporation ("Norfolk Southern") and Norfolk Southern Marine Services, Inc. ("Marine Services"), seek a preliminary injunction against John E. Wilson ("Wilson"), Delaware's Secretary of the Department of Natural Resources and Environmental Control 516 ("DNREC"), and Charles M. Oberly, III ("Oberly"), Attorney General of the State of Delaware. More particularly, Plaintiffs seek to enjoin the Defendants and their agents and employees from enforcing that portion of the Delaware Coastal Zone Act ("CZA"), 7 Del.C., Ch. 70, that has been held applicable to their proposed vessel-to-vessel coal top-off project in the Delaware Bay and requiring Wilson to process their pending applications for air pollution control permits under Delaware Environmental Protection Law, 7 Del.C., Ch. 60. They contend the CZA is unconstitutionally violative of the commerce clause. CZA was enacted by the Delaware Legislature in 1971 and the avowed purpose of the Act was to control the location, extent and type of industrial development in Delaware's coastal areas. The control of such industrialization, it was hoped, would better protect the natural environment of the bay and coastal areas and safeguard their use primarily for recreation and tourism. 7 Del.C. ß 7001. Section 7001 also provided: ... that offshore bulk product transfer facilities represented a significant danger of pollution to the coastal zone and generate pressure for the construction of industrial plants in the coastal zone, which construction is declared to be against public policy. For these reasons, prohibition against bulk product transfer facilities in the coastal zone is deemed imperative. (emphasis added). "Bulk product transfer facility" is defined as "any port or dock facility, whether an artificial island or attached to shore by any means, for the transfer of bulk quantities of any substance from vessel to onshore facility or vice versa. Not included in this definition is a docking facility or pier for a single industrial or manufacturing facility for which a permit is granted or which is a nonconforming use. Likewise, docking facilities for the Port of Wilmington are not included in this definition." 7 Del.C. ß 7002. Administration of the Act is by the Secretary of DNREC, Wilson, and appeals from his decisions are heard first by the State Coastal Zone Industrial Control Board ("Board"), section 7007(a), whose decisions are binding on all the agencies of the State of Delaware. Under section 7010, the Attorney General, Oberly, is responsible for enforcing the CZA, for using cease and desist orders and for recovering monetary penalties that can go as high as $50,000 per day of violation. Appeals from the Board are heard by the Superior Court of Delaware and appeals from that court are heard in the Supreme Court of Delaware. The Plaintiffs became interested parties in a proposal to transport and sell coal on the international market. Existing port facilities on the East Coast, however, allow only the loading of ordinary sized colliers or partial loading of super colliers. Super colliers are ships with coal carrying capacities ranging from 100,000 to more than 160,000 deadweight tons ("DWT"). Super colliers are obviously much more cost effective to operate than smaller vessels provided they are fully loaded. Because the super colliers cannot be fully loaded from any East Coast port, they would have to be "topped-off", the loading of additional coal to ship's capacity, in deeper water away from the existing ports. Big Stone Anchorage is the sole naturally protected anchorage with a depth of 55 feet or more between Maine and Mexico. It lies within the Delaware Bay and well within the zone protected by CZA. The anchorage is presently utilized for oil lightering, the transfer of oil from super tankers to smaller vessels capable of navigating East Coast rivers and harbors. Plaintiffs' plan is to partially load super colliers at existing ports and then move the ships to Big Stone Anchorage. Two specially constructed, fully loaded coal barges, part of the top-off project, will then deliver their coal to the holds of the super colliers. After unloading, the barges will return to local ports for loading preparatory to the next top-off job at Big Stone Anchorage. It is estimated by the Plaintiffs that each of the two barges will be capable of making 60 such trips per year and, when the 517 project is fully established, the top-off project will be handling 3,000,000 tons of coal annually from Big Stone Anchorage. These are necessarily projections only because there is no comparable service elsewhere in the United States which could provide the basis for empirical data. The volume of tonnage is contested by the Defendants who have supplied the Court with articles denigrating the value of a top-off project in the United States. The reports are skeptical that there will be a substantial foreign market for American coal. Among the premises for the conclusion is that costs of mining and interstate shipment, primarily by companies like those associated with Norfolk Southern, push the costs of American coal beyond the competitive world-wide market. Interestingly, the conclusions are reached without material regard to cost of international shipping, a premise that strikes at the heart of Plaintiffs' projections for a world market for American coal shipped from Big Stone Anchorage. Pursuant to 33 U.S.C. ß 471, Big Stone Anchorage is subject to the jurisdiction of the United States Coast Guard. In 1982, it proposed to change the designation of Big Stone Anchorage to a "general anchorage." Previously, the "specific" purpose of the anchorage was to allow deep draft tankers to anchor and lighter their cargoes of imported oil. The new Rule was designed to permit "shippers transporting commodities other than oil to use [Big Stone Anchorage] as both a holding anchorage and an anchorage for lightering." 33 C.F.R. 110.157. In response to the notice, the Governors of Delaware, Maryland and Pennsylvania endorsed the proposed change and specifically endorsed the coal top-off project. Comments in support of the proposal were filed by affiliates of the Plaintiffs, operators of railroads and by exporters of coal. DNREC did not endorse the proposal, noting that vessel-to-vessel coal transfer posed the potential for water pollution and suggesting that the Coast Guard determine the environmental impact of coal top-off operations at the anchorage. The Coast Guard formally changed the designation of Big Stone Anchorage to a "general anchorage" in May, 1983. 48 Fed.Reg. 23,636 (1983). It is not absolutely clear from the present record but there are indications that what prompted the Coast Guard to change the designation of the anchorage could have been based in part on the efforts by one J. Patrick Dowd, a Vice-President of Coastal Barge Corporation ("Coastal Barge") and President of Coal Logistics Corporation ("Coal Logistics"). Dowd and the corporations are not parties to this litigation but they play a major role in the scenario that covers this federal action. Coastal Barge, however, is a party to a state court action that is now pending in the Supreme Court of Delaware. A decision in that appeal could very well moot this federal action. (The Court will deal with that issue later in this opinion.) Dowd started thinking about a coal top-off operation in 1981. (Transcript of Superior Court hearing, August 7, 1984, p. 10, hereinafter referred to as "Super. Trans.") Because oil lightering had been in process in the bay for many years, he saw no reason why coal top-off could not be utilized. He commenced negotiations with Norfolk Southern whose subsidiaries move more export coal than any other shipper in the United States. Super.Trans., p. 12. Somewhat later, around October, 1982, Dowd met with David Hugg of the DNREC together with three Japanese coal buyers. The purpose of the meetings was to get a feel for Delaware's reaction to the project. Although environmental concerns were evident, as corroborated by Hugg's earlier letter to the Coast Guard, Hugg assured Dowd that the CZA was not applicable to the project. Subsequent visits raised no concerns about the applicability of CZA. After the Coast Guard approved the designation for the anchorage, Dowd commenced a series of complicated financial arrangements and business agreements that are the basis for this claim of irreparable harm. First, Lamberts Point Barge Co., Inc., a wholly owned subsidiary of Norfolk Southern, ordered the construction of Thoroughbred Topper 518 ("Topper"), a new 35,000 ton barge. Norfolk Southern has approximately 5 million dollars invested in the vessel which is also subject to a permanent mortgage of $15,564,000. In	{ "pile_set_name": "FreeLaw" }
741 F.2d 1086 HODGE CHILE COMPANY, Appellant,v.KNA FOOD DISTRIBUTORS, INC., Kenneth E. Adelmann and HarryBrunsen, Appellees.HODGE CHILE COMPANY, Appellee,v.KNA FOOD DISTRIBUTORS, INC., Kenneth E. Adelmann and HarryBrunsen, Appellants. Nos. 83-2610, 83-2696. United States Court of Appeals,Eighth Circuit. Submitted June 12, 1984.Decided Aug. 23, 1984.Rehearing Denied Sept. 24, 1984. Joseph A. Fenlon, Clayton, Mo., A. Fuller Glaser, Jr., St. Louis, Mo., for Hodge Chile Co. Francis L. Ruppert, Terrance L. Farris, Clayton, Mo., for appellees/cross-appellants. Before ROSS, HENLEY and BOWMAN, Circuit Judges. ROSS, Circuit Judge. 1 This case involves the right to use the name "Hodge" in marketing chile products. Jurisdiction exists by virtue of the Lanham Act. 15 U.S.C. Sec. 1121. 2 The district court prepared two opinions, one of which is published at 575 F.Supp. 210 (D.Mo.1983). Hodge Chile Company appeals the district court's decision that KNA Food Distributors (KNA) is not infringing its federally registered "Hodge's" trademark or acting in unfair competition by marketing chile and tamales in grocery outlets under the name "O.T. Hodge Chile Parlor Chili" (or "Tamales"). 3 KNA defends on the basis of a settlement agreement reached between Hodge Chile Company and O.T. Hodge Chile Parlors, Inc. in 1954. The 1954 agreement, inter alia, transferred the right to use the name "O.T. Hodge Chile Parlors" to O.T. Hodge Chile Parlors, which right O.T. Hodge Chile Parlors assigned to KNA. 4 KNA cross-appeals, arguing that the district court erred in failing to award it attorney fees pursuant to 15 U.S.C. Sec. 1117. KNA asserts that the requisite "exceptional circumstances" existed via the fact that the Hodge Chile Company obtained its registered trademark by use of a false affidavit. 5 We have carefully studied the record, including the district court's opinions and the briefs of the parties to the action. We find no merit in the arguments for reversal, and accordingly affirm pursuant to Rule 14 of the Rules of this court on the basis of the district court's findings.	{ "pile_set_name": "FreeLaw" }
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this May 14 2015, 8:40 am Memorandum Decision shall not be regarded as May 14 2015, 8:39 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Deborah M. Agard Douglas R. Long Law Office of Deborah M. Agard Anderson, Indiana Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA In Re the Marriage of: May 14, 2015 Court of Appeals Case No. Leann Palmer (Lawrence), 48A04-1405-DR-203 Appellant-Petitioner, Appeal from the Madison Circuit Court. v. The Honorable Carl E. Van Dorn, Special Judge. Cause No. 48D03-0712-DR-1413 Jeffrey Palmer, Appellee-Respondent Baker, Judge. Court of Appeals of Indiana \| Memorandum Decision 48A04-1405-DR-203 \| May 14, 2015 Page 1 of 13 [1] Leann Palmer (Mother) appeals the trial court’s order denying her petition to modify the child custody arrangement in place between Mother and Jeffrey Palmer (Father). Mother makes a number of arguments, which we consolidate and restate as follows: (1) that the trial court erred by declining to name Betty Palmer, the children’s paternal grandmother (Grandmother), as a de facto custodian and party; and (2) that there is insufficient evidence supporting the trial court’s order. Finding no error, we affirm. Facts [2] Mother and Father were married in 1988 and had two children, A.P., who was born in 2001, and B.P., who was born in 2003. On April 18, 2007, the marriage was dissolved and Father was named primary custodian of the children. At that time, Mother was incarcerated on convictions for five counts of federal bank fraud.1 [3] Since that time, Father and the children have lived with Grandmother. The children are enrolled in a parochial school, which they have attended for the past three years. Mother does not contribute to the cost of their education or healthcare, and she has never paid child support, though Father receives part of her disability payments to care for the children. 1 As a result of her convictions, Mother is ordered to pay over $429,000 in restitution. Monthly payments on this debt are deducted from her disability payments. Court of Appeals of Indiana \| Memorandum Decision 48A04-1405-DR-203 \| May 14, 2015 Page 2 of 13 [4] A.P. has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The school he attends has set up a program to help manage his special needs. He has had the same teacher for the past two years, and she testified that A.P. has adjusted quite well to school, concentrates much better since beginning a medication regimen, and now has many friends. Mother has never been involved in the children’s education. A.P. sees a psychiatrist, Dr. Sheila Irick, to help manage his medication and his needs. Dr. Irick testified that removing A.P. from his school would be harmful, that A.P. is receiving exceptional care from Father and Grandmother, and that the weight of both children is within normal limits.2 While there was a time when the children were not involved in any extracurricular activities because of concerns for A.P., both children are now involved in Boy Scouts and basketball. [5] Father has a full-time job that requires his presence at work from approximately 9 in the morning until 7 or 7:30 in the evening. As a result, he is generally able to spend time with the children in the morning before school and in the evenings before bed, as well as on the weekends. While Father is at work, Grandmother cares for the children. Specifically, she takes A.P. to his doctor appointments, communicates with the school about the children, and ensures that their needs are met. When Father is at home, he cares for the children. When he is able to, he attends medical appointments and always discusses 2 Mother testified that she was concerned that the children were underweight, but offered no expert testimony to contradict Dr. Irick’s opinion that the children’s weight was healthy. Court of Appeals of Indiana \| Memorandum Decision 48A04-1405-DR-203 \| May 14, 2015 Page 3 of 13 medical care decisions with Grandmother before those decisions are made. The children are bonded to both Father and Grandmother. [6] At some point, Mother was released from incarceration. Since that time, she has called the police on Father, resulting in charges against him that were later dismissed, and called Child Protective Services on Father, resulting in allegations that were unsubstantiated. On one occasion, Mother went to the children’s school, where she screamed and verbally attacked teachers and school personnel, resulting in her being escorted from the school premises. Mother complains that she has been unable to access the children’s school, medical, and mental health records, but that has since been rectified. Father has never been held in contempt for any failure to abide by the custody order in place. Mother testified that if she got custody, she would consider moving the boys to a different school or home schooling them, which Dr. Irick opined would not be in their best interests. [7] On September 19, 2011, Mother filed a petition to modify the child custody arrangement, seeking to be named the primary custodian. Mother asked that a Guardian ad Litem (GAL) be named to represent the children’s interests, and the trial court granted that request, appointing a GAL on March 5, 2012. The GAL filed a report with the trial court on May 21, 2012, and filed a supplemental report on August 7, 2012. The GAL recommended that Mother and Father share joint legal custody but that Father remain the primary physical custodian, with Mother to have liberal parenting time while Father is at work. Court of Appeals of Indiana \| Memorandum Decision 48A04-1405-DR-203 \| May 14, 2015 Page 4 of 13 [8] On March 5, 2013, Mother filed a second petition to modify the child custody arrangement, seeking to be named the primary custodian. According to Mother, the second petition was filed because no hearing had been held on the first.3 [9] On four days between August 28, 2013, and January 27, 2014, the trial court held an evidentiary hearing on the motion to modify. The parties submitted proposed findings of fact and conclusions of law, and on April 8, 2014, the trial court entered its order denying Mother’s motion to modify. Mother now appeals. Discussion and Decision I. De Facto Custodian [10] Mother first argues that the trial court erred by declining to find that Grandmother is the children’s de facto custodian and naming her a party to the litigation. “De facto custodian” is defined as “a person who has been the primary caregiver for, and financial support of, a child who has resided with the person” for at least one year for children over the age of three. Ind. Code § 31- 9-2-35.5. If it is established “by clear and convincing evidence that a child has been cared for by a de facto custodian,” then certain factors must be considered. Ind. Code § 31-17-2-8.5. If, having considered all relevant factors, the trial 3 The Chronological Case Summary shows that another motion to modify custody, support, and visitation was filed by Mother on June 26, 2013, but this pleading does not appear in the Appellant’s Appendix. Court of Appeals of Indiana \| Memorandum Decision 48A04-1405-DR-203 \| May 14, 2015 Page 5 of 13 court “determines that a child is in the custody of a de facto custodian, the court shall make the de facto custodian a party to the proceeding.” I.C. § 31-17-2- 8.5(c). In other words, even if a child has been cared for by a de facto custodian, that person is not a required party unless the trial court determines that the child was actually “	{ "pile_set_name": "FreeLaw" }
FILED Apr 28 2016, 9:38 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Stephen Miller Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana ______________________________________________________________________________ In the Indiana Supreme Court _________________________________ No. 02S03-1508-CR-510 LEONARD L. SUGGS, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Allen Superior Court, No. 02D06-1408-F6-90 The Honorable Wendy W. Davis, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-1412-CR-440 _________________________________ April 28, 2016 Rucker, Justice. The question presented is whether the sister of a brother who was once married to the defendant’s aunt is a “family or household member” within the meaning of the statute elevating misdemeanor battery to a level 6 felony. We think not. Facts and Procedural History On the evening of August 2, 2014, Leonard L. Suggs and his girlfriend, Evelyn Garrett, attended a family reunion at a bowling alley in Allen County. Suggs and Garrett were dating and had lived together in an intimate relationship for about two years. Family members attending the reunion included ten to twenty children under the age of sixteen. Also in attendance was Vera Warren whose brother had been previously married to Suggs’ aunt. Suggs has known Warren all his life and refers to her as “Auntie.” At some point during the course of the evening Suggs and Garrett became engaged in a verbal altercation. Despite the intervention of several family members and the assistant manager of the bowling alley Suggs refused to leave. The altercation escalated and Suggs threw a beer can at Garrett that missed; he then picked up a bowling ball and threw it at her. The bowling ball grazed Garrett and hit Warren on the left side of her head, which she later testified caused her pain. Warren immediately left the building and called 911. In the meantime Suggs grabbed Garrett by the hair and pulled her down a flight of stairs. Officers of the Fort Wayne Police Department arrived on the scene a short time thereafter and spoke with Garrett and two of the children who had observed the fracas. The children were extremely upset by what they had seen. On August 7, 2014 the State charged Suggs with domestic battery as a level 6 felony for his assault on Garrett and battery as a level 6 felony for his assault on Warren. Following a jury trial on October 8, 2014 Suggs was found guilty as charged. Thereafter the trial court sentenced him to two years for each conviction to be served consecutively for an aggregate term of four years with credit for time served in pretrial confinement. Suggs appealed challenging the sufficiency of the evidence for both convictions. Rejecting Suggs’ challenge the Court of 2 Appeals affirmed the judgment of the trial court. See Suggs v. State, 31 N.E.3d 998 (Ind. Ct. App. 2015). Having previously granted transfer we now reverse the judgment of the trial court with respect to Suggs’ level 6 battery conviction. In all other respects we summarily affirm the opinion of the Court of Appeals. See Ind. App. R. 58(A). Discussion Indiana Code section 35-42-2-1 provides in relevant part, “a person who knowingly or intentionally: (1) touches another person in a rude, insolent, or angry manner . . . commits battery, a Class B misdemeanor[,]” which is elevated to a class A misdemeanor “if it results in bodily injury to any other person.” Ind. Code § 35-42-2-1(b), (c).1 The statute further provides: [Battery] is a Level 6 felony if . . . [t]he offense is committed against a family or household member (as defined in IC 35-31.5-2- 128) if the person who committed the offense: (A) is at least eighteen (18) years of age; and (B) committed the offense in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense. I.C. § 35-42-2-1(d)(6). Challenging the sufficiency of the evidence Suggs does not dispute he was at least eighteen years of age at the time of the offense, nor does he contest that the battery occurred in the physical presence of a child less than sixteen years of age or that he knew the child was present and might be able to see or hear the offense. Rather he complains the evidence is insufficient to demonstrate that Warren was a “family or household member” within the meaning of Indiana Code section 35-31.5-2-128. When we review a claim challenging the sufficiency of the evidence we neither reweigh the evidence nor assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). Instead, we consider only the evidence and reasonable inferences drawn therefrom that support the verdict. Id. And we will affirm the conviction if there is probative evidence 1 “‘Bodily injury’ means any impairment of physical condition, including physical pain.” I.C. § 35-31.5- 2-29. 3 from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. Captioned “Family or household member” Indiana Code section 35-31.5-2-128 dictates in pertinent part: (a) An individual is a “family or household member” of another person if the individual: (1) is a current or former spouse of the other person; (2) is dating or has dated the other person; (3) is or was engaged in a sexual relationship with the other person; (4) is related by blood or adoption to the other person; (5) is or was related by marriage to the other person; (6) has or previously had an established legal relationship: (A) as a guardian of the other person; (B) as a ward of the other person; (C) as a custodian of the other person; (D) as a foster parent of the other person; or (E) in a capacity with respect to the other person similar to those listed in clauses (A) through (D); or (7) has a child in common with the other person. I.C. § 35-31.5-2-128(a) (emphasis added). Focusing on subsections (a)(4) and (5) Suggs insists that Warren is neither his “blood relative” nor is she related by marriage to him. Br. of Appellant at 9. According to Suggs, a relative by marriage connotes “Brother-in-law,” “Sister-in-law,” “Mother-in-law,” “Son-in-law,” and “Daughter-in-law,” and that Warren does not fall within any of these categories. Id. at 11. The State counters, “[t]he statute appears to define ‘family or household member’ in broad terms to capture as many types of familial and household relationships as possible, and, while the statute provides that an individual who is related by blood to the other person is a family or household member, other types of relationships are also clearly protected.” Br. of Appellee at 10-11. As is apparent by the arguments of both sides we are presented with a question of statutory construction which is a matter of law and is reviewed de novo. When construing a statute our primary goal is to ascertain the legislature’s intent. Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012). To discern that intent, we look first to the statutory language itself and give 4 effect to the plain and ordinary meaning of statutory terms. Pierce v. State, 29 N.E.3d 1258, 1265 (Ind. 2015). “If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning.” State v. Evans, 810 N.E.2d 335, 337 (Ind. 2004) (quotation omitted). However, if a statute admits of more than one interpretation, then it is ambiguous; and we thus resort to rules of	{ "pile_set_name": "FreeLaw" }
505 F.2d 1229 Nathaniel WRIGHT, III, et al., Appellees,v.Delbert C. JACKSON et al., Appellants. No. 74-1353. United States Court of Appeals, Fourth Circuit. Argued June 6, 1974.Decided Nov. 8, 1974. David P. Sutton, Washington, D.C. (C. Francis Murphy, Louis P. Robbins and Richard W. Barton, Washington, D.C., on brief), for appellants. Geoffrey Judd Vitt, Alexandria, Va. (Cohen & Rosenblum, Alexandria, Va., William H. Allen, Michael A. Schlanger, David S. Weissbrodt, and Covington & Burling, Washington, D.C., on brief), for appellees. Before WINTER, RUSSELL and WIDENER, Circuit Judges. DONALD RUSSELL, Circuit Judge: 1 The District of Columbia maintains a number of prisons where persons convicted of crimes committed within the District are confined. Among such prisons is the Lorton Reformatory which, by a special Act of the Congress, was constructed outside the District in Northwest Virginia. As an integral part of the District prison system, however, administrative control of Lorton, as does that of all other prisons in the system, rests entirely with the District of Columbia Department of Corrections.1 2 The plaintiffs-appellees, all of whom are inmates of Lorton, have filed this class action, complaining that, in disciplinary proceedings as conducted at Lorton, the plaintiffs and all other inmates of Lorton are denied their due process rights. The defendants-appellants are the Director of the District of Columbia Department of Corrections and various officials at Lorton itself. The plaintiffs seek injunctive relief. Two other actions brought by other inmates of the District prison system and involving the same issues and seeking similar relief are pending in the District Court of the District of Columbia.2 3 The defendants by their answer, among other pleas, raised the issue that the proper forum for the disposition of plaintiffs' claims was either the Superior Court or the District Court of the District of Columbia.3 The District Court seemingly overruled the defendants' contention of inappropriate forum, proceeded to dispose of the action on the merits, and entered a comprehensive decree setting forth in considerable detail the procedures to be observed by the District of Columbia Department of Corrections in disciplinary proceedings at Lorton. This appeal followed. We remand with instructions. 4 After the entry of the judgment of the District Court herein, the Supreme Court in Wolff v. McDonnell (1974), 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, authoritatively resolved the due process rights of prison inmates in disciplinary proceedings. While a number of the due process requirements established by the District Court complied with the rules authorized by the Supreme Court in Wolff, some of them went beyond what the Supreme Court mandated. For this reason, the judgment of the District Court will be vacated and the cause remanded to the Court for further proceedings in light of Wolff. 5 Apart from the validity of the judgment below on the merits, however, the defendants complain of the exercise of jurisdiction over the cause by the District Court of Virginia. We find this contention deserving of earnest consideration. In Canada Malting Co. v. Paterson Co. (1932), 285 U.S. 413, 423, 52 S.Ct. 413, 415, 76 L.Ed. 837, Justice Brandeis said: 6 '* * * Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.' 7 This authoritative admonition for restraint in the exercise of jurisdiction in those cases where there is a more appropriate forum was quoted by Justice Jackson in his exposition of the doctrine of forum non conveniens in the leading case of Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. After quoting from Canada Malting and observing that 'the principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute',4 Justice Jackson, speaking for the Court in that case, said (p. 505, p. 841 of 67 S.Ct.): 8 '* * * On substantially forum non conveniens grounds we have required federal courts to relinquish decision of cases within their jurisdiction where the court would have to participate in the administrative policy of a state.' 9 Both Gulf and Canada Malting, it is true, predated the enactment of Section 1404, 28 U.S.C. That section, however, was not designed to overturn or restrict the doctrine of forum non conveniens as it was articulated in those cases but, among other reasons, rather to enlarge it and make its exercise more equitable. Norwood v. Kirkpatrick (1955), 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789. That this is so is evident from this statement by Judge Maris, long chairman of the Committee on Civil Rules, in Hoffman v. Goberman (3d Cir. 1970), 420 F.2d 423, 426: 10 'A district court may in the interest of justice decline to pass upon the merits of a controversy and relegate the plaintiff to a more appropriate forum. Indeed, as between the district courts of the United States, transfer to a more appropriate federal forum is expressly authorized by statute. 28 U.S.C. 1404(a).' 11 This case presents, it would seem, just that unusual case envisaged by Gulf and Canada Malting, where the Court should decline to decide the merits of the controversy in deference to 'a more appropriate federal forum'. Actually, we are not dealing here merely with a single separate and independent prison operating under its own individual rules and procedures. What is concerned here is the validity of the operating procedures for all the prisons operated by the Correctional Department of the District of Columbia. Those procedures have been adopted and are to be applies under guidelines fixed by the District Correctional Department in which is vested jurisdiction over all such prisons, whether physically located in the District or without. Those procedures are intended to apply not merely to Lorton but to all the other prison installations in the entire system. Lorton is thus but one of the institutions affected. But this Court-- this District Court of Virginia-- is limited in its determination of the validity of those procedures as they apply to inmates of that single installation at Lorton. That is the sole District prison physically within the jurisdiction of a Virginia District Court. The decree of the Virginia District Court can accordingly have no effect on or control over the procedures followed in the other installations of the District of Columbia's prison system. Those other installations are in the District of Columbia and their officials are not subject to injunctive processes issuing from the Courts of the Virginia District. On the other hand, the Courts of the District of Columbia, before which actions involving these same issues are pending, have jurisdiction over the District of Columbia Department of Corrections and its officials and, through them, over all the prisons, including Lorton, within the entire District's prison system. 12 It must be remembered that Lorton, though physically in Virginia, has, as has been emphasized, a 'unique relationship to the District of Columbia' and its courts;5 it is an integral part of that District's governmental operations and its officials are subject to any decree entered by the District Courts of the District of Columbia. The jurisdiction, under authority of whose courts its prison inmates were confined, and by whose administrative officials control over its prison facilities is exercised, have, as the Court in Preiser v. Rodriguez (1973), 411 U.S. 475, 492, 93 S.Ct. 1827, 36 L.Ed.2d 439, observed, such a peculiarly 'intimate' relationship with the operation of those facilities as to give to that jurisdiction a primacy in the disposition of any equitable complaints relating to the operations of those facilities that will not prevail in other circumstances and instances or in the administration of other statutes having national application. Because of its jurisdiction over all the prisons in the District of Columbia system and this 'intimate' relationship with them and their officials, the District Courts of the District of Columbia can do what the District Court of Virginia cannot do: They can enter a decree that will have universal application throughout the entire prison system of the District of Columbia and covering all the officials in that system, establishing thereby a uniform procedure in all the prisons for disciplinary proceedings and avoiding the confusion likely to result from having the operations of the several units of the District's prison system subject to injunctive processes issued by separate federal courts. 13 Common sense, as well as sound judicial administration, argues against having two separate decrees from two separate courts where a single decree from a single court will suffice. Piece-meal fashioning of remedies for the inmates of the District prison system, prison by prison, by the District Court of the District of Columbia and in the District Court of Virginia, is an intolerable waste of judicial effort and imposition on both courts when the entire issue can be resolved by the formulation of a single decree by one of the District Courts that will apply system-wide. All this can easily be avoided by transferring this case to the District Court of the District of Columbia, to be decided along	{ "pile_set_name": "FreeLaw" }
11 A.3d 1026 (2010) COM. v. GRIFFIN. No. 295 MDA 2009. Superior Court of Pennsylvania. August 16, 2010. Affirmed.	{ "pile_set_name": "FreeLaw" }
961 F.2d 1577 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.John E. KENEALY, Plaintiff-Appellant,v.Jack BRESLIN; Donald Chamberlain; Frank Coyer, Jr.;Russell Howell; Robert Rowan; Francis Sehan; T. NealCombs; Leon Alexander; John Grace; John McCabe; ThomasReghanti; James Wilkerson; and Dean Richardson, Defendants,v.FRUEHAUF CORPORATION; K-H Corp; and Robert Siefert,Defendants-Appellees. Nos. 90-1461, 90-1569. United States Court of Appeals, Sixth Circuit. April 29, 1992. Before DAVID A. NELSON, BOGGS and KRUPANSKY, Circuit Judges. PER CURIAM: 1 The plaintiff-appellant, John E. Kenealy, has initiated this consolidated pro se appeal from the district court's order dismissing without prejudice his complaint against certain individual defendants for failure to effect service of process and from a grant of summary judgment in favor of those defendants who entered an appearance and answered the complaint, the K-H Corporation and Robert Siefert.1 2 In his complaint, Kenealy sought to maintain an action for damages founded on civil contempt for the alleged violation by the corporation and its officers and directors of a preliminary injunction issued on July 24, 1986 in Plaza Securities v. Fruehauf Corporation, 643 F.Supp. 1535 (E.D.Mich.1986), modified, Edelman v. Fruehauf Corporation, 798 F.2d 882 (6th Cir.1986). Kenealy was not a party to that case. The case, including the injunction, was dismissed with prejudice pursuant to the stipulation of the parties on August 22, 1986. 3 The district court permitted Kenealy to proceed in forma pauperis and ordered the United States Marshal to serve the summons and complaint without prepayment of costs. Kenealy apparently supplied the United States Marshal with an incorrect address for the corporation's offices, and none of the defendants acknowledged receipt of the summons and complaint. Three months after the faulty summons and complaint were mailed by the United States Marshal pursuant to the court order, the district court, on December 19, 1989, at the conclusion of a show cause hearing, advised Kenealy that the case would be dismissed if service was not effected within thirty days from the date of the hearing. 4 Kenealy did not perfect service, although he did file a motion for default judgment. On March 12, 1990, the district court denied the default motion for failure to effect service of the summons and complaint as required by Fed.R.Civ.P. 4(c)(2)(C)(i), 4(c)(2)(C)(ii), or 4(d)(1). The complaint was dismissed without prejudice pursuant to Fed.R.Civ.P. 4(j) as to those defendants who had not acknowledged service. On February 28, 1990, the K-H Corporation and Robert Siefert filed a motion for summary judgment which was granted by the court on April 16, 1990. 5 This court assumed jurisdiction over the Fed.R.Civ.P. 4(j) dismissal pursuant to Gillis v. United States Dep't of HHS, 759 F.2d 565, 569 (6th Cir.1985). The district court did not abuse its discretion in dismissing the complaint. In addition, the complaint was dismissed without prejudice. Kenealy was not barred by the district court's order from refiling his complaint and attempting to effect proper service. 6 Finally, summary judgment was appropriate because there is no genuine issue as to any material fact that would entitle Kenealy to judgment as a matter of law. Fed.R.Civ.P. 56(c). Kenealy has no standing to seek damages under a preliminary injunction that has been dissolved in a case in which he was not a real party in interest and that has been dismissed upon the stipulation of the parties to that action. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535 (1966); Reed v. Rhodes, 635 F.2d 556, 558 (6th Cir.1980), modified, 642 F.2d 186 (6th Cir.1981). Even assuming that Kenealy could surmount the procedural obstacles posed by his attempt to enforce a nonexistent injunction, as a matter of law and fact he was not a "bidder" for the corporation and would not have been embraced by the terms of the injunction while it was in effect. Plaza Securities Co. v. Fruehauf Corp., 643 F.Supp. 1535 (E.D.Mich.1986), modified, Edelman v. Fruehauf Corp., 798 F.2d 882 (6th Cir.1986). Thus, the final judgment of the district court is AFFIRMED in its entirety. 1 The corporate name was changed from "Fruehauf Corporation" to "K-H Corporation" on June 22, 1989	{ "pile_set_name": "FreeLaw" }
918 F.2d 174Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Lamar PERRYMAN,v.John D. PARKER, Clarence L. Jackson, Lewis W. Hurst, theVirginia Parole Board, Members, Defendants-Appellees. No. 90-6109. United States Court of Appeals, Fourth Circuit. Submitted Oct. 29, 1990.Decided Nov. 16, 1990. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-90-241-AM) Lamar Perryman, appellant pro se. E.D.Va. AFFIRMED. Before WIDENER, PHILLIPS and WILKINSON, Circuit Judges. PER CURIAM: 1 Lamar Perryman appeals from the district court's order dismissing his 42 U.S.C. Sec. 1983 suit without prejudice. Our review of the record discloses that this appeal is without merit.* Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. 2 AFFIRMED. * The district court dismissed Perryman's suit without prejudice for failure to exhaust administrative remedies. The administrative exhaustion requirement is not applicable in this case because Perryman's suit is against the Virginia Parole Board and does not concern prison conditions. However, because Perryman seeks to challenge the "denial of parole release," his claim appears to seek release from his confinement. Such a claim is subject to the exhaustion requirement of 28 U.S.C. Sec. 2254(d). See Todd v. Bakerville, 712 F.2d 70 (4th Cir.1983). Therefore, Perryman must file a petition for a writ of habeas corpus in Virginia court, see Va.Code Ann. Secs. 8.01-654, 17-97, refiling his federal claim	{ "pile_set_name": "FreeLaw" }
523 So.2d 1338 (1988) Roland N. ROZAS, M.D. v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, State of Louisiana, et al. No. 88-C-0845. Supreme Court of Louisiana. May 6, 1988. Denied. LEMMON, J., would grant the writ.	{ "pile_set_name": "FreeLaw" }
Matter of Matsen v Matsen (2018 NY Slip Op 03836) Matter of Matsen v Matsen 2018 NY Slip Op 03836 Decided on May 30, 2018 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 30, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. ROBERT J. MILLER VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ. 2017-07042 (Docket Nos. V-5145-16, V-5146-16, V-5856-16, V-5857-16, V-848-17, V-849-17) [1]In the Matter of Drew W. Matsen, respondent, vMegan E. Matsen, appellant. Kelley M. Enderley, P.C., Poughkeepsie, NY, for appellant. Jonna Spilbor Law, Poughkeepsie, NY (Anthony C. Cillis of counsel), for respondent. Gary E. Eisenberg, New City, NY, attorney for the children. DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Dutchess County (Tracy C. MacKenzie, J.), dated June 28, 2017. The order, insofar as appealed from, after a hearing, denied the mother's petition for permission to relocate with the parties' children to Ridgefield, Connecticut, denied the mother's separate petition alleging that the father violated the parties' stipulation of settlement as incorporated into the judgment of divorce, and granted, in part, the father's petition to modify the judgment of divorce so as to award him sole legal and physical custody of the children. ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying the mother's petition for permission to relocate with the parties' children to Ridgefield, Connecticut, and substituting therefor a provision granting that petition, and (2) by deleting the provision thereof granting, in part, the father's petition to modify the judgment of divorce so as to award him sole legal and physical custody of the children, and substituting therefor a provision denying the father's petition in its entirety; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Dutchess County, to establish, with all convenient speed, an appropriate physical access schedule for the father in accordance herewith. The mother and the father are the parents of two children, who are now seven and five years old, respectively. The parties were divorced by judgment entered June 3, 2016, which incorporated, but did not merge, a stipulation of settlement entered into by the parties in May 2016. The stipulation provided, in relevant part, that the parties would share joint legal custody of the children, with physical custody of the children to the mother and frequent physical access to the father, and that the party with whom the children did not have physical access would have daily private, uninterrupted telephone, FaceTime, or Skype calls with the children. The parties also agreed that they would not move more than 40 miles away from each other's residence in Millbrook, New [2]York. In October 2016, the father filed a petition to modify the judgment of divorce so as to award him sole legal and physical custody of the children on the grounds that the mother notified him that she intended to relocate with the children the following June to Ridgefield, Connecticut, to live with her fiancé. The proposed relocation exceeded the 40-mile limitation to which the parties had agreed and would make compliance with the existing physical access schedule impossible. Thereafter, the mother filed a petition for permission to relocate with the children to Ridgefield and a separate petition alleging that the father had violated the custody arrangement by interfering with her calls with the children. Following a hearing on the petitions, the Family Court denied the mother's petitions and granted the father's petition to the extent of directing, inter alia, that sole custody of the children would be transferred to the father in the event the mother relocated to Ridgefield or any other location which made the current physical access schedule impracticable. The mother appeals. "A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests" (Matter of Caruso v Cruz, 114 AD3d 769, 771; see Matter of Tropea v Tropea, 87 NY2d 727, 741; Matter of DeCillis v DeCillis, 128 AD3d 818, 819; Matter of Doyle v Debe, 120 AD3d 676, 680). The court must consider factors that include, but are not limited to, each parent's reasons for seeking or opposing the move, the quality of the relationships between the children and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the children's future contact with the noncustodial parent, the degree to which the custodial parent's and children's lives may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and children through suitable physical access arrangements (see Matter of Tropea v Tropea, 87 NY2d at 740-741; Matter of Boyd v Ivory, _____ AD3d _____, 2018 NY Slip Op 02457 [2d Dept 2018]; Matter of DeCillis v DeCillis, 128 AD3d at 820; Matter of Doyle v Debe, 120 AD3d at 679-680; Matter of Caruso v Cruz, 114 AD3d at 771). While an agreement of the parties is a factor for consideration, "[n]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interest" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95; see Matter of Gravel v Makrianes, 120 AD3d 815, 816-817; Matter of Shannon J. v Aaron P., 111 AD3d 829, 830; Rheingold v Rheingold, 4 AD3d 406). The court must consider a relocation request on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the children. While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered, it is the rights and needs of the children that must be accorded the greatest weight (see Matter of Tropea v Tropea, 87 NY2d at 739; Matter of Caruso v Cruz, 114 AD3d at 771; Matter of Abbott v Abbott, 96 AD3d 887, 888; Matter of McBryde v Bodden, 91 AD3d 781, 781-782). The Family Court's credibility determinations are entitled to deference, but "this Court's authority is as broad as that of the hearing court, and a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record" (Matter of DeCillis v DeCillis, 128 AD3d at 820 [internal quotation marks omitted]; see Matter of Doyle v Debe, 120 AD3d at 680; Matter of Caruso v Cruz, 114 AD3d at 771-772). Here, the Family Court's determination that the children's best interests would not be served by relocating with the mother to Ridgefield is not supported by a sound and substantial basis in the record. Contrary to the court's conclusion, the mother's testimony did not show that her sole motivation for the relocation was to ease her fiancé's commute. Rather, the evidence demonstrated that the mother also considered the educational and social opportunities for the children, her fiancé's inability to move the businesses he ran in Norwalk, Connecticut, and the feasibility of frequent physical access with the father following the relocation. The evidence demonstrated that both parents have a good relationship with the [*3]children and were involved in their educational and recreational activities. The father did not dispute that the children's educational and social opportunities would be greatly enhanced by the move to Ridgefield. Although the parties agree that the distance of the relocation would impact the father's current physical access schedule, the father's work schedule is flexible, which should afford him the opportunity to participate in the children's activities. Further, the mother planned to work, at most, part time after the move, while she had been working full time in Millbrook. Her increased availability would allow her to better facilitate the children's physical access with the father. In addition, the father will continue to have daily telephone, FaceTime, or Skype calls with the children during the times that the father does not have physical access. A liberal physical access schedule will allow for the continuation of a meaningful relationship between the father and the children (see Matter of Clarke v Boertlein, 82 AD3d 976, 978). Accordingly, the Family Court should have granted	{ "pile_set_name": "FreeLaw" }
511 F.3d 334 (2008) Herbert COUSIN, Petitioner-Appellant, v. Floyd G. BENNETT, Respondent-Appellee. Docket No. 03-2837-pr. United States Court of Appeals, Second Circuit. Argued: April 10, 2007. Decided: January 4, 2008. 335 Julia Pamela Heit, New York, NY, for Appellant. Guy Arcidiacono, Assistant District Attorney, Suffolk County, Riverhead, N.Y. (Thomas J. Spota, District Attorney of Suffolk County, on the brief), for Appellees. Before: LEVAL, CABRANES, RAGGI, Circuit Judges. LEVAL, Circuit Judge: Petitioner, Herbert Cousin, appeals from an order of the United States District Court for the Eastern District of New York (Weinstein, J.), denying a petition for habeas corpus under 28 U.S.C. § 2254. Petitioner sought to vacate a New York State court conviction on the ground that the New York courts misapplied Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when they found that petitioner failed to make a prima facie showing of racial motivation. We affirm the district court's ruling. The New York State Supreme Court, Appellate Division's rejection of petitioner's claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court rulings. See 28 U.S.C. § 2254(d)(1). BACKGROUND Petitioner was indicted in Suffolk County, New York, on one count of first degree rape and one count of second degree assault. The jury was selected by calling successive panels of jurors for voir dire. Before being called into the jury box, all prospective jurors filled out a questionnaire which asked, among other things, the juror's occupation, whether the juror had ever been accused of a crime or had ever been the victim of a crime, and whether the juror had served on a jury before. The trial judge began by placing eighteen prospective jurors in the jury box, and conducting a voir dire, asking each of the eighteen a few questions. The court then allowed the prosecutor and defense lawyer to ask further questions. Upon completion of the voir dire, the court invited challenges for cause (none were asserted) and peremptory challenges against the first twelve jurors. The prosecutor struck four prospective jurors, and the defense struck six. The court then invited challenges against the remaining jurors (numbers 336 13 through 18). No challenges for cause were exercised. The prosecutor then peremptorily struck two jurors, and the defense counsel three. Thus at the end of the first round, three jurors out of the eighteen had been qualified. For the second round, twenty-two prospective jurors were placed in the jury box and questioned. Because three jurors had already been qualified, the court invited challenges to the first nine jurors from the new group. The prosecutor raised a challenge for cause, which the judge denied. The prosecutor then peremptorily struck three prospective jurors, and defense counsel struck four. The two remaining from the panel were then seated, bringing the total of seated jurors to five. The judge then repeated the same process with the next seven jurors: numbers ten through sixteen. The defense counsel unsuccessfully challenged one juror for cause. The prosecutor then peremptorily struck two jurors, and the defense counsel struck one. Four additional jurors were then seated for trial, bringing the total of selected jurors to nine. The process was then repeated with the next three jurors, all of whom were peremptorily struck (two by the prosecutor and one by the defense), and again with the last three jurors (one of which was struck by the prosecutor). This brought the total number of seated jurors to eleven, with only one more needed to complete the main jury of twelve. The following day, a new panel of jurors was brought into the courtroom. Eighteen were placed in the jury box and questioned. Bonita Smith, who was African-American, was the first of the new eighteen. Upon completion of the questioning of the new eighteen, the court invited challenges to one juror at a time, as only one was needed to complete the main jury of twelve. The court began with Ms. Smith, because she was in the first seat. Neither lawyer challenged Smith for cause. The court then asked the prosecutor whether he would peremptorily challenge juror Smith, which the prosecutor answered in the affirmative. The defense immediately raised a Batson objection, arguing that "[o]ut of the entire jury pool we have had, this is the only Afro-American that's been seated. She said absolutely nothing that I can see that would persuade the District Attorney's Office to kick her off, and it seems to me that it is clear the only reason the district attorney's elected to knock her off is because she is black, and my client is also black." It is apparently undisputed that Smith was the only African-American to have been placed in the jury box for questioning. In response to the defendant's Batson objection the judge asked, "Don't you have to [show] a pattern of that, though?" Defense counsel answered that he could not establish a pattern of discriminatory challenges because there had been only one African-American called for voir dire, making it impossible for the prosecutor to have challenged more than one African-American. Defense counsel further argued in support of his objection that Smith had "stated the victim [who] was robbed is a clerk," a (possibly mis-transcribed) reference to the fact that Smith had stated during voir dire that her mother, a toll booth clerk, had been robbed. The judge then asked the prosecutor if he wanted to "put anything on the record as to the reason" for challenging Smith. The prosecutor declined to do so. The trial judge then stated, "I can't establish a pattern from only one person. So . . . I will deny your Batson application." Smith was thus excused. The judge then invited challenges to the juror in the second seat. There were no challenges, so that this juror became the twelfth and final *337 juror. Four alternates were then selected, and the following day the trial began. Petitioner was convicted of first degree rape and second degree assault and was sentenced to twenty-five years to life on both counts. Petitioner appealed to the Appellate Division, which affirmed the conviction. People v. Cousin, 272 A.D.2d 477, 707 N.Y.S.2d 676 (2000). As to petitioner's Batson claim, the Appellate Division reasoned: Contrary to the defendant's contentions on appeal, the fact that the prosecutor peremptorily challenged the only black potential juror to be questioned during voir dire was insufficient, without more, to establish a prima facie case of purposeful discrimination. The defendant did not articulate a sound factual basis for his Batson claim, as he failed to establish the existence of facts and other relevant circumstances giving rise to an inference of purposeful discrimination. Id. at 478, 707 N.Y.S.2d 676 (citations omitted). Leave to appeal to the New York Court of Appeals was denied. People v. Cousin, 95 N.Y.2d 851, 714 N.Y.S.2d 2, 736 N.E.2d 863 (2000) (Rosenblatt, J.). Petitioner moved in the Eastern District to set aside the conviction under § 2254. The district court denied the petition. As to the Batson claim, the court ruled that the state court decisions were in accord with federal law and petitioner had failed to make a prima facie showing of racial motivation in support of his Batson objection. Cousin v. Bennett, No. 01 Civ. 6060 (E.D.N.Y. Sept.4, 2003). We granted a certificate of appealability on petitioner's Batson claim only, and now affirm the judgment of the district court. DISCUSSION The Equal Protection Clause of the Constitution forbids a prosecutor from challenging jurors solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the Supreme Court outlined a three-part burden-shifting framework that trial courts must use to determine whether a prosecutor unconstitutionally excluded a potential juror on the basis of race. 476 U.S. at 86-87, 96-98, 106 S.Ct. 1712. First, the defendant must make a prima facie showing, based on "any . . . relevant circumstances," that the government's peremptory challenge was racially motivated. Id. at 96-97, 106 S.Ct. 1712. The Court noted, as examples, that a pattern of exercising strikes against jurors of a particular race, or a prosecutor's racially-biased questions and statements during voir dire, might be sufficient to establish a prima facie case. Id. at 97, 106 S.Ct. 1712. Second, if the defendant makes such a prima facie showing of racial motivation, the prosecutor is required to give a race-neutral explanation for the peremptory challenge. Id. at 97, 106 S.Ct. 1712. Third, if the prosecutor gives a race-neutral explanation, the trial court must then determine whether the defendant has established that the peremptory challenge was motivated by race. Id. at 98, 106 S.Ct. 1712. Petitioner claims that he is entitled to habeas corpus relief because the New York state courts misapplied the first step in Batson's three-part test. Habeas corpus relief is not warranted, however, unless the	{ "pile_set_name": "FreeLaw" }
87 F.3d 1313 In Matter of Ann Sidwell Fatheree NO. 95-10666 United States Court of Appeals,Fifth Circuit. Feb 09, 1996 Appeal From: N.D.Tex., No. 2:90-CV-82 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 97-1456 ___________ Double D Spotting Service, Inc., * * Plaintiff-Appellant, * Appeal from the United States * District Court for the v. * Southern District of Iowa. * Supervalu, Inc.; World Super * Services, Inc., * * Defendants-Appellees. * ___________ Submitted: October 23, 1997 Filed: February 11, 1998 ___________ Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges. ___________ HANSEN, Circuit Judge. Double D Spotting Service, Inc. (Double D) brought this suit against Supervalu, Inc. (Supervalu) and World Super Services, Inc. (World Super Services), alleging that the defendants violated federal antitrust laws, state competition laws, and a federal motor carrier law. The district court dismissed Double D’s complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). We affirm in part and reverse in part. I. When reviewing a Rule 12(b)(6) dismissal for failure to state a claim, we look only to the facts alleged in the complaint and construe them in the light most favorable to the plaintiff. See Doe v. Norwest Bank Minnesota, N.A., 107 F.3d 1297, 1303-04 (8th Cir. 1997). In its amended and substituted complaint, Double D pleaded that until 1996, it had been in the business of competing with other companies to provide semitrailer unloading services for over the road trucking companies that deliver goods to the Supervalu warehouse in Urbandale, Iowa. The semitrailers travel in interstate commerce, carrying goods that are unloaded at the Supervalu warehouse and subsequently shipped to grocery stores in several states. In addition to unloading trucks driven to the warehouse by the trucking company drivers, Double D offered trucking companies a more involved unloading service. By agreement with Double D, the trucking company could drop its loaded, unhooked semitrailer at a nearby interstate truck stop. A Double D driver driving a Double D tractor would then hook on to the trailer and transport it to the Supervalu warehouse. The Double D driver would then unload the semitrailer and return it empty to the same truck stop location for the over the road trucking company to retrieve at its convenience. This service allowed the over the road trucking company to save the time and expense of paying its own driver both to deliver the semitrailer to the warehouse and to wait for it to be unloaded. It also freed up the trucking company’s tractor for other work. In 1996, Supervalu entered into an agreement granting World Super Services the exclusive right to provide unloading services at the Urbandale warehouse. The agreement provided fixed prices to be charged by World Super Services and barred all other unloading companies from performing any unloading services at the Urbandale warehouse. Thereafter, trucking companies could choose either to unload their own trucks at the warehouse or to hire World Super Services to unload them. Double D complains that the agreement between Supervalu and World Super Services wrongfully -2- eliminated competition and imposed an unreasonable restraint on the unloading services trade at Supervalu’s Urbandale warehouse. Double D originally brought suit against Supervalu and World Super Services in state court, seeking an injunction and damages for the defendants’ alleged restraint of trade and competition in violation of state and federal antitrust law and for alleged tortious interference with Double D’s business relationships. The defendants removed the case to federal district court and moved to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Double D filed an amended and substituted complaint in federal district court, alleging in counts I through IV that the defendants contracted to restrain trade in violation of Iowa Code § 553.4 (1997) and Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (1994); and that they attempted to establish a monopoly in violation of Iowa Code § 553.5 and Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2. Count V alleges a violation of 49 U.S.C.A. § 14103(b) (West 1997), which prohibits the act of coercing any motor carrier operator to pay someone to load or unload the property being transported in interstate commerce. The district court granted the defendants’ motion to dismiss. The court held that Double D failed to state a claim of restraint of trade or monopoly as alleged in counts I through IV, concluding that the facts as alleged do not constitute a legally cognizable relevant market or demonstrate an actual adverse impact on competition within that market. Additionally, the district court concluded that count V, asserting coercion of a ?person providing transportation of property by motor vehicle for compensation in interstate commerce,” fails to state a claim because there is no allegation that any trucking companies were forced or coerced to pay World Super Services to unload their semitrailers. Double D appeals the dismissal of its complaint. -3- II. We review de novo the district court’s grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Association of Commonwealth Claimants v. Moylan, 71 F.3d 1398, 1402 (8th Cir. 1995). Using the same standard as the district court, we must accept the factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff. Doe, 107 F.3d at 1303-04. We affirm a Rule 12(b)(6) dismissal if ?it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996) (internal quotations omitted), cert. denied, 117 S. Ct. 1081 (1997). A. Antitrust Claims The first four counts of Double D’s complaint allege violations of state and federal antitrust law. Two counts are based on the Sherman Antitrust Act, which declares it unlawful to contract or form a conspiracy ?in restraint of trade or commerce among the several States,” 15 U.S.C. § 1, and which makes it a felony to ?monopolize, or attempt to monopolize . . . any part of the trade or commerce among the several States,” 15 U.S.C. § 2. Two counts are based on Iowa statutes that mirror these federal prohibitions, absent the interstate commerce element. See Iowa Code §§ 553.4, 553.5.1 ?The essential elements of a private antitrust claim must be alleged in more than vague and conclusory terms to prevent dismissal of the complaint on a defendant’s [Rule] Section 553.4 provides, ?A contract, combination , or conspiracy between two 1 or more persons shall not restrain or monopolize trade or commerce in a relevant market.” Section 553.5 provides, ?A person shall not attempt to establish . . . a monopoly of trade or commerce in a relevant market for the purpose of excluding competition or of controlling, fixing, or maintaining prices.” -4- 12(b)(6) motion.” Crane & Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 805 (6th Cir. 1988). The district court concluded that Double D’s antitrust claims failed to state a claim because Double D failed to plead a valid relevant market. Double D contends that it was not required to plead a relevant market because it pleaded per se antitrust violations. Alternatively, Double D asserts that even if it was necessary for it to plead a relevant market, the Supervalu warehouse in Urbandale itself is the relevant market for trailer unloading services. To demonstrate a violation of section 1 of the Sherman Act, a plaintiff must provide proof of an illegal contract, combination, or conspiracy which results in an unreasonable restraint of trade. State Oil Co. v. Khan, 118 S. Ct. 275, 279 (1997). ?[M]ost antitrust claims are analyzed under a <rule of reason,’ according to which the finder of fact must decide whether the questioned practice imposes an unreasonable restraint on competition.” Id. This ?rule of reason” analysis involves an inquiry into the market structure and the defendant’s market power in order to assess the actual effect of the restraint. Copperweld Corp. v. Independence Tube Corp., 467 U.S.	{ "pile_set_name": "FreeLaw" }
43 F.Supp.2d 708 (1999) LOUISIANA-PACIFIC CORPORATION, Plaintiff, v. TEXAS DEPT. OF TRANSPORTATION and Southern Pacific Transportation Company, Defendants. No. 1:98-CV-1516. United States District Court, E.D. Texas, Beaumont Division. March 23, 1999. 709 Joe G. Roady, Sheinfield Maley & Kay, Houston, TX, for plaintiff. Walter C. Brocato, Attorney General Office, Austin, TX, for defendant Texas D.O.T. David P. Young, Houston, TX, Linda C. Schoonmaker, Bayco Gibson Carnegie, Hagan, Schoonmaker & Meyer, Houston, TX, for defendant Southern Pac. AMENDED MEMORANDUM OPINION COBB, District Judge. In the 1880's, Plaintiffs predecessors in title (who owned property in question in fee simple) granted easements for railroad purposes to the Sabine and East Texas Railway Company. Southern Pacific Railway, the current defendant, subsequently acquired these easements.. In 1994, Southern Pacific, pursuant to The National Trails System Act of 1983, 16 U.S.C. § 1247(d) ("Trails Act") conveyed the easements in question to the Texas Department of Transportation. The Trails Act allows a railroad wishing to cease operations on a line to negotiate with, among others, a State or political subdivision to allow the railroad right-of-way to be converted to a public trail. 16 U.S.C. § 1247(d). The purpose of the Act is to increase the number of trails in the United States and to preserve rail corridors for potential future use. The Trails Act treats conversions such as the one at issue in this case as a discontinuance, and not an abandonment (as Plaintiffs try to allege), and retains ICC jurisdiction over the line. Id. (the ICC, or Interstate Commerce Commission, has since been replaced by the Surface Transportation Board, or STB see National Association of Reversionary Property Owners v. Surface Transportation Board, 158 F.3d 135 (D.C.Cir.1998)). In its original petition in state court, Plaintiff alleged that the Trails Act was unconstitutional and that the Defendants' actions constituted a taking without due process of law and consequently a violation of the 5th and 14th Amendments of the United States Constitution. In addition, Plaintiff alleged that Defendants actions violated due process under the Texas Constitution, a takings provision in § 2007.044 of the Texas Code, and also clouded their title to the land. After Plaintiff filed its initial petition, Defendants properly and timely removed to this Court. Plaintiff then filed a motion for leave to amend its complaint (which 710 has not yet been granted), dropping all federal claims and keeping only the state law claims. The question at issue is whether the case in its present posture should be remanded to state court. ANALYSIS The first question to be answered is whether the Court has jurisdiction. Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir.1998). According to Ruhrgas, "the appropriate course is to examine for subject matter jurisdiction constantly and, if it is found lacking, to remand to state court if appropriate, or otherwise dismiss." Ruhrgas at 220 citing Ziegler v. Champion Mortgage Co., 913 F.2d 228 (5th Cir.1990). In this case, the mere fact that Plaintiff here indicated a desire to drop its federal claims does not answer the question whether this Court retains subject matter jurisdiction. In fact, when a Plaintiff drops federal claims and only retains state law claims then the Court has discretion whether to order a remand. In re Ben Carter, 618 F.2d 1093, 1101 (5th Cir. 1980) (holding that a Plaintiff cannot rob the district court of subject matter jurisdiction by electing to amend away the ground for federal jurisdiction). See also St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845. Indeed, it is fundamental that whether subject matter jurisdiction exists is a question answered by looking to the complaint as it existed at the time the petition for removal was filed. Carter at 1101; Pullman Co. v. Jenkins, 305 U.S. 534 537-38, 59 S.Ct. 347, 83 L.Ed. 334. That having been said, the accepted rule in the 5th Circuit is that upon removal the removal court should inspect the complaint to determine whether a federal claim is necessarily presented, even if the plaintiff has couched his pleading exclusively in terms of state law. Carter at 1101; see also Romick v. Bekins Van & Storage Co., 197 F.2d 369 (5th Cir.1952). The reviewing court should look to the substance of the complaint, not merely the labels used in it. Carter at 1101; Smith v. Local 25, Sheet Metal Workers Int'l Ass'n., 500 F.2d 741, 748-49 (5th Cir.1974). At issue in this case, as much as Plaintiffs attempt to deny it, is fundamentally a federal law claim. Plaintiff's attempt to transform its action into a state law action by simply evidencing its desire to drop its federal claims is impermissible. The transfer of land between the defendants was conducted pursuant to the Rails to Trails Act, a Federal Statute. Federal law supercedes state law. U.S. Constitution Art. VI § 2. Plaintiff's claims, which center around a takings theory, are rooted in state law (one cites Section 2007.044 of the Texas Code, requiring that a "takings impact assessment" be made before the government takes private land. Another cites Article I, § 17 of the Texas Constitution, requiring that compensation be paid to private individuals who suffer a taking at the hands of the state government). Plaintiff's claims are rooted in state law, and because the transfer in question occurred pursuant to a Federal statute, Plaintiff's claims are superceded by the Federal statute and do not belong in state court. Just because a takings claim cannot be made pursuant to state law, does not mean that a takings claim cannot be made at all. It simply means that it must be brought pursuant to the Federal statute. In this case, takings claims rooted in transfers conducted pursuant to the Rails to Trails should be brought under the Tucker Act. Preseault v. I.C.C., 494 U.S. 1, 22, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (holding that, the Tucker Act provides an appropriate remedy for claims brought under to the Trails Act). The appropriate venue for such an action, provided that it exceeds $10,000 is the United States Court of Claims. 28 U.S.C.A. § 1491(a)(1) (the Tucker Act); Preseault, 494 U.S. 1, 4-5, 110 S.Ct. 914, 108 L.Ed.2d 1; U.S. v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980); Graham v. Henegar, 640 F.2d 732 *711 (5th Cir.1981) (holding that the Federal Court of Claims has exclusive jurisdiction over nontort claims for money damages against the United States over $10,000). [Incidentally, this court, under 28 U.S.C. § 1631 has the discretionary authority to transfer claims to the Court of Federal Claims. 28 U.S.C. § 1631; Dunn McCampbell Royalty Interest v. Nat. Park Serv., 964 F.Supp. 1125, 1139 (S.D.Tex. 1995)]. The United States Court of Claims, although it can hear the takings claim and decide on monetary restitution, can only decide on monetary claims, and therefore cannot grant Plaintiff's wish to have the alleged cloud lifted from its title. Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988); Lee v. Thornton, 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975). This cloud, as Plaintiff describes it, derives from the transfer of the property in question which Plaintiff attempts to frame as an abandonment. Under the Trails Act, however, if the I.C.C. (now the S.T.B) approves a transfer of land pursuant to the Trails Act, then it is not classified as an abandonment, 16 U.S.C.A. § 1247(d), but a discontinuance. Grantwood Village v. Missouri Pacific R.R. Co., 95 F.3d 654, 658. In the case at hand, the I.C.C. did approve the transfer. Therefore, it is not an abandonment, and Plaintiff's claim to the contrary, is in essence a collateral attack on the I.C.C.'s order, similar to the allegation at issue in Grantwood, 95 F.3d 654. In Grantwood, Plaintiffs attempted to characterize their claim as a "quiet title" action. The transfer of property in question, however, like the transfer at issue in this case, was conducted pursuant to the Rails to Trails Act and was in compliance with an I.C.C. order. Consequently, the Eighth Circuit ruled that a challenge to the Defendant's interest in	{ "pile_set_name": "FreeLaw" }
NUMBER 13-08-125-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG HENRY KAPPE, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 214th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Justice Benavides Appellant, Henry Kappe, was convicted by a jury of intoxication manslaughter, intoxication assault, and failure to stop and render aid. TEX . PENAL CODE ANN . §§ 49.07(a)(1), 49.08(a) (Vernon 2006); TEX . TRANSP . CODE ANN . §§ 550.021(a)-(c), 555.023(3) (Vernon 1999). Kappe claims that the evidence was insufficient to support revocation of his community supervision and that the trial court failed to take into consideration mitigating factors in sentencing. For the reasons stated herein, we affirm the trial court’s judgment. I. Background Henry Kappe was indicted for intoxication manslaughter, intoxication assault, and failure to stop and render assistance. On February 2, 2005, Kappe was found guilty by a jury of all three offenses. The jury sentenced him to five years in the Texas Department of Criminal Justice and a $500.00 fine for intoxication assault and intoxication manslaughter, and six months in the Nueces County jail and a $500.00 fine for failure to stop and render assistance. The jury also recommended that the punishment of imprisonment be suspended and that Kappe be placed on community supervision with respect to the intoxication assault and manslaughter convictions. On February 10, 2005, the trial court placed Kappe on community supervision. The State filed a motion to revoke Kappe’s community supervision, and later amended the motion. The motions to revoke alleged that Kappe failed to report to his probation officer, failed to report a change of his residence, failed to pay fines, and failed to avoid alcoholic beverages. A hearing was held on motion to revoke on February 21, 2008 at which time Kappe pleaded “true” to all the allegations in the State’s motion to revoke. Kappe did not enter into an agreement regarding punishment. The State requested that the trial court impose the original five year sentence in Texas Department Criminal Justice. Kappe asked that his probation not be revoked and, in the alternative, asked the 2 court to consider SAFPF or SATF.1 After hearing the evidence, the court found the allegations in the motion to revoke to be true. The trial court revoked Kappe’s community supervision, and he was sentenced to five years in the Texas Department of Criminal Justice for the intoxication assault and the intoxication manslaughter, and he was sentenced to six months in the Nueces County Jail for his failure to stop and render aid. The court certified Kappe’s right to appeal, and this appeal ensued. II. Anders issues Kappe’s counsel describes his appellate brief as a “hybrid-Anders” brief. In other words, Kappe’s counsel has argued one issue that she found to be meritorious but has also listed several possible issues that she deems frivolous. The State argues that the brief fails to comply with the procedure required by Anders v. California, 386 U.S. 738 (1967) and In Re Shulman, 252 S.W.3d 403 (Tex. Crim. App. 2008). We agree. States must provide counsel for an indigent appellant on his first appeal as a matter of right, and courts have recognized the superior ability of trained counsel in the examination into the record, research of the law, and marshalling of the arguments on the appellant’s behalf. Douglas v. California, 372 U.S. 353, 358 (1963). Experienced advocates have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most, on a few key issues. Jones v. Barnes, 463 U.S. 745, 751 (1983). Appellate counsel does not have to raise every possible argument on appeal; rather, appellate counsel should examine the record with a view to selecting the most promising issues for review. Id. at 752. Even though 1 Substance Abuse Felony Punishm ent Facilities. See T EX . G O V ’T C OD E A N N . § 493.009 (Vernon Supp.2007) 3 Kappe’s counsel has set out various issues that she found to be wholly frivolous, she was not required to do so. Kappe’s counsel did brief one issue which she felt was not frivolous. We will confine our review to that issue. III. Revocation and Punishment Kappe argues that the evidence at the hearing to revoke his probation was insufficient to support the revocation, and that the court failed to take into account mitigating factors. The State argues that appellant did not raise this objection at the hearing and has thus waived the issue. In the alternative, the State argues that the sentence is within the range of punishment for the offenses. A. Waiver To preserve a complaint of disproportionate sentencing, an appellant must object or otherwise raise error in the trial court. TEX . R. APP. P. 33.1; Jackson v. State, 989 S.W.2d 842, 844 (Tex. App.–Texarkana 1999, no pet.). Kappe did not specifically object when the trial court pronounced his sentence. However, Texas Rule of Appellate Procedure 33.1(a)(1)(A) excuses the lack of a timely and specific objection if “the specific grounds were apparent from the context.” TEX . R. APP. P. 33.1(a)(1)(A). Kappe did not challenge the evidence supporting revocation because he pleaded true to the State’s allegations. Accordingly, he has not preserved that argument for appeal. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that the issue on appeal must comport with the objection raised at trial). However, Kappe did request that the court continue his community supervision and order alcohol rehabilitation. Id. Accordingly, he preserved his challenge to the sentence. 4 B. Standard of Review A trial judge is afforded a great amount of discretion in determining the appropriate punishment in any given case. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); see also Jeter v. State, No. 13-05-069-CR, 2006 Tex. App. LEXIS 7136, at *2-3 (Tex. App.–Corpus Christi Aug. 10, 2006, no pet.) (mem. op., not designated for publication). Accordingly, the trial court’s assessment of a particular punishment will not be disturbed on appeal absent a showing of abuse of discretion. Jackson, 680 S.W.2d at 814. Generally, a penalty assessed that is within the range of punishment established by the Legislature for a particular offense will not be disturbed on appeal. Id. Texas Code of Criminal Procedure article 42.12, section 23 sets forth the procedures to be followed when a person violates the terms of his or her community supervision. TEX . CODE CRIM . PROC . ANN . art. 42.12 § 23 (Vernon Supp. 2007). Section 23 provides that if community supervision is revoked, “the judge may proceed to dispose of the case as if there had been no community supervision, or if the judge determines that the best interests of society and the defendant would be served by a shorter term of confinement, reduce the term of confinement originally assessed to any term of confinement not less than the minimum prescribed for the offense of which the defendant was convicted.” Id. At the hearing, the court heard from Kappe and his counsel regarding the reason for keeping him on community supervision. After the hearing, the sentence given to Kappe was the sentence given by the jury and was well within the range of punishment for the offenses. TEX . PENAL CODE ANN . § 49.07(c) (intoxication assault is a third-degree felony); id. § 12.34(a) (two-to-ten year imprisonment as punishment for third-degree felony); id. § 5 49.08(b) (intoxication manslaughter is a second-degree felony); id. § 12.33(a) (two-to- twenty year imprisonment as punishment for second-degree felony); TEX . TRANSP . CODE	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit ____________ No. 03-2339 PAMELA JOHNSON, Plaintiff-Appellant, v. LARABIDA CHILDREN’S HOSPITAL, Defendant-Appellee. ____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01-C-1047—Charles R. Norgle, Sr., Judge. ____________ ARGUED JANUARY 15, 2004—DECIDED JUNE 22, 2004 ____________ Before COFFEY, KANNE, and EVANS, Circuit Judges. COFFEY, Circuit Judge. Plaintiff-appellant Pamela Johnson brought suit against her former employer, LaRabida Children’s hospital in Chicago, Illinois, alleging that her civil rights had been violated, pursuant to 42 U.S.C. § 1983, when she was struck in the head by security guard Tommy Stephens while attempting to gain access to the facility. The district court granted LaRabida’s motion for summary judgment under Fed. R. Civ. P. 56(c), finding Johnson had failed to provide sufficient proof to demon- strate that Stephens was a state actor within the meaning of § 1983. We affirm. 2 No. 03-2339 I. BACKGROUND On March 23, 1999, plaintiff-appellant Pamela Johnson (“Johnson”) entered the lobby of her former employer, the LaRabida Children’s Hospital (“Hospital”) to discuss a negative recommendation a potential employer allegedly received from LaRabida while she applying for a new job. The stated purpose of her visit to the hospital that day was to review her personnel file with the director of the human resource department, Bill Koulias (“Koulias”). Upon arrival, Johnson requested access to the human resources depart- ment and Koulias, but her request was denied by the Hospital’s receptionist, Willie Williams (“Williams”). At this point, Johnson began to threaten Williams, allegedly screaming “Call the police [explicative] because I am going to kill you!” R.22, Williams Affidavit ¶ 1. This prompted Williams to again deny Johnson’s requested audience with Koulias and place a call to Hospital security. Prior to security arriving Johnson continued her tirade, allegedly threatening to beat and kill Williams and Koulias. When security guard Tommy Stephens (“Stephens”) ar- rived on the scene, in the midst of Johnson’s ranting, he directed Williams to call 911. Stephens also told Johnson that she would not be allowed to go up to the human re- source department to see Koulias. Johnson responded by asking whether Stephens had a gun. When Stephens told her that he did not, Johnson warned Stephens that he would need to find some people with guns to stop her. According to Stephens and Williams, Johnson claimed to have a gun. R.22, Williams Affidavit ¶ 1; R.22, Stephens Affidavit ¶¶ 1, 2. As Johnson became more enraged, she attempted to walk around Stephens and proceed to the human resource department. Stephens grabbed Johnson to impede her ad- vance and was subsequently kicked in the leg. Stephens responded by screaming out “that bitch kicked me.” Johnson No. 03-2339 3 Affidavit ¶ 2. Then, in an attempt to prevent Johnson from possibly doing harm to herself or others, Stephens, using a downward motion, struck Johnson in the head with the walkie-talkie he was holding in his left hand. It was only after Stephens struck Johnson that her verbal and physical barrage ceased and she left the Hospital’s lobby, where she was met at the door by Chicago police called to the scene by Williams. Police took Johnson to a local hospital where she received 13 stitches for her wound. While neither Johnson nor Stephens were arrested the day of the incident, Johnson was issued a citation for assault, battery, and disorderly conduct. Although Johnson filed criminal battery charges against Stephens, the State’s Attorney’s Office elected not to pursue charges. Subsequently, Stephens, Koulias, and two other Hospital employees prepared and signed misdemeanor criminal complaints against Johnson alleging disorderly conduct, telephone harassment, assault, and battery.1 The assault and battery charges were dismissed on April 4, 2000 and never reinstated. In return for the dismissal of those charges, Johnson pled guilty to the misdemeanor disorderly conduct and telephone harassment charges. She was sentenced to, and completed, one year of conditional supervision. In her plea agreement, Johnson admitted that she (1) acted in “an unreasonable manner”; (2) “threat[ened] bodily harm” to persons at the Hospital; (3) “provoke[d] a breach of the peace”; (4) “battered [Stephens]”; and (5) “created dismay.” On February 15, 2000, Johnson filed a civil complaint, pursuant to 28 U.S.C. § 1983, against the Hospital and Stephens alleging that they violated her civil rights because 1 After the incident, Johnson continued to threaten bodily harm to various Hospital personnel in numerous recorded telephone calls made to the Hospital. 4 No. 03-2339 Stephens used excessive force when he struck her in the head. Johnson’s complaint also alleged a number of pendant state law claims. On January 24, 2002, the defendants filed a motion for summary judgment on Johnson’s Section 1983 claim. On September 27, 2002, the trial judge granted the defendant’s motion, dismissing both Johnson’s federal and pendant state law claims. Specifically, the district court found that Stephens was not a “state actor” for purposes of Section 1983. The judge’s Order also declined to retain pendant jurisdiction over Johnson’s state law claims. Johnson timely appealed the Order to this Court on October 16, 2002. We affirm. II. ANALYSIS “We review a district court’s grant of summary judgment de novo, construing all facts and inferences in the light most favorable to the non-moving party.” Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1028 (7th Cir. 2004). Summary judgment is appropriate where “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 a judgment as a matter of law.” Fed. R. Civ. P. 56(c). 42 U.S.C. § 1983 provides in pertinent part that “[e]very person who, under color of any statute, ordinance, regu- lation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983. While generally employed against government officers, the language of § 1983 authorizes its use against private in- dividuals who exercise government power; that is, those individuals who act “under color of state law.” Payton v. No. 03-2339 5 Rush-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 628 (7th Cir. 1999). This Court held in Payton v. Rush- Presbyterian-St. Luke’s Medical Center that a private party will be deemed to have acted under “color of state law” when the state either (1) “effectively directs or controls the actions of the private party such that the state can be held responsible for the private party’s decision”; or (2) “dele- gates a public function to a private entity.” Id. Johnson argues, in accord with the latter theory, that Stephens should be considered a state actor due to his status as a special policeman, duly appointed under Chicago Municipal Code § 4-340-100.2 Chicago Municipal Code § 4-340-100 declares that “[s]pe- cial policemen shall possess the powers of the regular police patrol at the places for which they are respectively ap- pointed.” Furthermore, “for purposes of determining whether [an individual is a] state actor[ ] . . . , no legal difference exists between a privately employed special officer with full police powers and a regular Chicago police officer. Payton, 184 F.3d at 630 (emphasis added). If, how- ever, the privately employed special officers are “no sub- stitute for the police” in that they are not “entrusted with all powers possessed by the police,” then the special officer is not considered a	{ "pile_set_name": "FreeLaw" }
970 F.2d 898 Gelin (Ernst J.)v.Stone (Michael P.W.) NO. 91-5457 United States Court of Appeals,Third Circuit. June 12, 1992 Appeal From: D.N.J., Thompson, J. 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
644 F.2d 880 Mabryv.Mitchell 79-8508 UNITED STATES COURT OF APPEALS Fourth Circuit 2/23/81 1 E.D.Va. CPC DENIED--DISMISSED	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-50618 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OSCAR POLANCO-SALAS, also known as Victor Ortiz, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1658-1-F - - - - - - - - - - February 15, 2001 Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Oscar Polanco-Salas appeals his sentence following his guilty plea conviction for illegal re-entry after deportation in violation of 8 U.S.C. § 1326. Polanco argues that his sentence should not have exceeded the two-year maximum sentence under 8 U.S.C. § 1326(a). Polanco acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for Supreme Court review in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-50618 - 2 - Polanco’s argument is foreclosed by Almendarez-Torres, 523 U.S. at 235. The Government has moved for a summary affirmance in lieu of filing an appellee’s brief. In its motion, the Government asks that the judgment of the district court be affirmed and that an appellee’s brief not be required. The motion is granted. AFFIRMED; MOTION GRANTED.	{ "pile_set_name": "FreeLaw" }
240 F.Supp.2d 396 (2002) Jerry D. WEAST,[1] et al. Plaintiffs v. Brian SCHAFFER, et al. Defendants No. CIV. PJM 99-15. United States District Court, D. Maryland. November 25, 2002. 397 Zvi Greismann, Esquire, Rockville, MD, Jeffrey A. Krew, Esquire, Columbia, MD, for Plaintiffs. Michael J. Eig, Esquire, Haylie Michelle Iseman, Esquire, Chevy Chase, MD, for Defendants. OPINION MESSITTE, District Judge. I. The parents of Brian Schaffer, a child with a disability as defined in the Individuals With Disabilities Education Act (IDEA), 20 U.S. § 1400, et seq., disagreed with the Montgomery County, Maryland, Public School system (MCPS) that it offered Brian a Free Appropriate Public Education (FAPE) for the school year 1998-99. As a result, the parents unilaterally placed Brian in private school for that year and sought reimbursement pursuant to the Act. With the case before him for a second time, the Administrative Law Judge (ALJ) held that MCPS had not provided Brian a FAPE,[2]but awarded the parents reimbursement 398 for only one-half the year's tuition (Schaffer II). The parents have appealed the latter decision. They also ask, by way of a motion for preliminary injunction, that MCPS be required to fund Brian's placement at private school for the school years 1999-00 and 2000-01. MCPS has appealed the decision of the ALJ to the extent that he awarded the parents any reimbursement at all. The parties have filed Cross-Motions for Summary Judgment.[3] The Court will GRANT the parents' Motion for Summary Judgment and will AFIRM the finding of the ALJ that MCPS did not provide Brian with a FAPE for 1998-99. It will REVERSE the ALJ's decision insofar as he ordered reimbursement for only one-half of the school year and will DIRECT that the parents be reimbursed for the entire 1998-99 school year. The parents' Motion for Preliminary Injunction, asking that they be reimbursed for the school years 1999-00 and 2000-01, will be DENIED. The Cross-Motion of MCPS for Summary Judgment will be DENIED. II. A) Schaffer I Brian, who was 14 years old in 1998-99, is learning-disabled, language-impaired and other health impaired. He has been diagnosed as having attention deficit hyperactivity disorder and needs special education and related services to benefit from school attendance. From kindergarten through seventh grade, he attended Green Acres School, a private school in Montgomery County where, despite small class size and significant accommodations as well as parentally provided extra services, he did not succeed. In November 1997, Brian's mother contacted MCPS and requested special education services for him for the 1998-99 school year, submitting outside evaluations in support of her request. After reviewing the outside evaluations and conducting additional tests, MCPS found Brian eligible for special education and proposed a parttime placement at Hoover Middle School, with an alternative placement at the Robert Frost Middle School. This was Brian's initial IEP. Because they believed the IEP drafted for Brian was not reasonably calculated to provide him with appropriate educational benefit, his parents notified MCPS that they rejected the proposed placement. In May of 1998, they requested an administrative due process hearing. More or less simultaneously, anticipating the beginning of a new school year in the fall, they enrolled him for the 1998-99 school year at the McLean School, a private school for learning and language-disabled students located in Montgomery County. In Schaffer I, in which the ALJ assigned the burden of proof to the parents, the ALJ considered the evidence relative to the "central auditory processing problem" he found Brian had. He cited the testimony of Drs. Ruth D. Spodak and Carol A. 399 Kamara, Brian's experts on learning disabilities and speech/language pathology respectively, both of whom stated that the IEP proposed for Brian failed to offer an appropriate educational benefit because he required small, self-contained special education classes of a kind not included in the IEP. Dr. Spodak testified that such classes were essential to Brian's education because they would tend to minimize the distractions interfering with his ability to learn. Dr. Kamara testified that his "central auditory processing" problem increased his susceptibility to distractions, necessitating a small, self-contained learning environment. The ALJ noted that Dr. Spodak's testimony differed in some respects from a report she and members of her staff had written earlier about Brian's learning disabilities. This, along with the fact that she herself had spent only ten minutes with Brian, caused the ALJ to "question! ] the probative value of Dr. Spodak's opinion." Similarly, the ALJ noted that Dr. Kamara's opinion was compromised to some extent by her acknowledgment of the diagnostic limitations of the test she relied upon in diagnosing Brian's "central auditory processing" problem and by her refusal to offer an opinion as to whether Brian's speech-language disability was mild, moderate, or severe. Finally, the ALJ noted that two experts from MCPS, Dr. Barbara J. Butera, a school psychologist, and Pamala Zahara, a speech pathologist, testified that the IEP was appropriate to Brian's needs and that, in their view, Brian suffered not from a "central auditory processing" problem but from a mild speechlanguage disability. The ALJ deemed assignment of the burden of proof in the case to be "critical": There are experts on both sides in this case who have testified with opposing points of view. The credentials of all of those experts, in their respective fields, were impressive. Because each side's experts have diverging views on the question of what the Child's needs were and which placement would afford the requisite educational benefit for the Child, an assignment of the burden of proof in this case becomes critical. Placing the burden of proof upon the parents, the ALJ decided that they had not demonstrated that Brian failed to receive a FAPE: The Parents have failed to persuade the ALJ that the April 6, 1998 IEP was not reasonably calculated to provide educational benefit, or that the placement(s) offered by MCPS are not appropriate to provide for the Child's educational needs in accordance with the IDEA. Accordingly, the parents' request for reimbursement was denied. B) Schaffer II In Schaffer II, with the burden of proof shifted to MCPS, but without additional evidence being presented, the ALJ revisited the record. Again he found that the core dispute was whether Brian had a "central auditory processing" problem and again he considered the impact, if any, that that disability had on Brian's ability to learn. The ALJ reviewed the testimony of Dr. Kamara, the Schaffers' speech/language pathology and audiology expert, who was critical of the proposed placement of Brian at Herbert Hoover Middle School or the Robert Frost Middle School "because of the risk of simultaneous messages, distractions and possible distortions of audio signals in that setting." He looked again at Dr. Kamara's opinion that the critical need of the childhis "central auditory processing" problemhad not been addressed in the 1998-99 IEP. The ALJ also considered the testimony of the speech/language pathologist for MCPS, Pamala Zahara, who opined that Brian did 400 not exhibit evidence of "severe auditory processing difficulties related to discrimination at the word level." The ALJ weighed Dr. Kamara's qualifications as a certified audiologist against those of Ms. Zahara as a speech/language pathologist. The fact that Dr. Kamara had conducted a formal comprehensive evaluation of Brian that took four hours to complete as opposed to the informal assessment Ms. Zahara took approximately one hour to make was also taken into account. At the end of the day, the ALJ concluded that "undoubtedly, Dr. Kamara's effort and experience in evaluating the Child was more extensive than that of Pamala Zahara." Even then, however, the ALJ found that the evidence remained in balance: In sum, the weight of the evidence from Dr. Kamara and Pamala Zahara on the usefulness of the SCAN-A and the existence of the Child's unique "central auditory processing" problem, rests in equipose. In resolving the dispute of fact, the ALJ must accept one expert's opinion and reject the other. Unlike the initial hearing, MCPS now bears the burden of proof on facts in dispute. For this reason, the ALJ now accepts the opinion from Dr. Kamara that the Child has an unique "central auditory processing" problem and rejects Pamala Zahara's opinion to the contrary. Having reversed the factual finding on that initial point, the ALJ will further accept, the opinion of Dr. Kamara that the Child's unique "central auditory processing" problem has a significant impact on his learning and rejects expert opinion testimony from MCPS to the contrary. The ALJ also revisited the testimony of Dr. Spodak, Brian's expert witness in psychology and learning disabilities: During her testimony, she opined, consistent with the opinion of Dr. Kamara, that the Child would receive only trivial or minimal educational benefit, not the appropriate benefit, in a placement at either the Herbert Hoover Middle School or the Robert Frost Middle School. Dr. Spodak would not recommend that the Child be provided special education services in an "inclusion model" setting.[4]Dr. Spodak believes that the Child's educational needs can only be met in small, self-contained special education classes. Small,	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PATRICK BERGSRUD, No. 17-17181 Plaintiff-Appellant, D.C. No. 2:14-cv-01592-RFB-GWF v. MEMORANDUM* BANK OF AMERICA, N.A., FKA Countrywide Home Loans Servicing LP, as Successor by merger to BAC Home Loans Servicing, LP; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding Submitted December 17, 2018** Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges. Patrick Bergsrud appeals from the district court’s summary judgment in his diversity action challenging a foreclosure sale. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Bourne Valley Court Tr. V. Wells Fargo * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Bank, NA, 832 F.3d 1154, 1157 (9th Cir. 2016). We affirm. The district court properly granted summary judgment for defendant Bank of America, N.A. on Bergsrud’s claims to set aside the foreclosure sale and quiet title because Bergsrud filed this action after the statute of limitations to challenge procedural defects to the sale had run, and assuming without deciding that these deadlines were subject to equitable tolling, Bergsrud failed to establish that equitable tolling should apply. See Nev. Rev. Stat. § 107.080(5) and (6) (an action to void a trustee’s sale must commence within 90 days of the date of the sale, or 120 days of the date of actual notice of the sale where the person entitled to notice did not receive proper notice); City of N. Las Vegas v. State Local Gov’t Emp.- Mgmt. Relations Bd., 261 P.3d 1071, 1077 (Nev. 2011) (standard under Nevada law for equitable tolling). The district court properly granted summary judgment on Bergsrud’s wrongful foreclosure claim because Bergsrud failed to raise a genuine dispute of material fact as to whether the property was not in default at the time of the foreclosure sale. See Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623 (1983) (elements of a wrongful foreclosure claim under Nevada law). We do not consider matters raised for the first time on appeal, or matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. 2 17-17181 Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. 3 17-17181	{ "pile_set_name": "FreeLaw" }
714 F.2d 135 Williamsv.Morgan 83-6096 UNITED STATES COURT OF APPEALS Fourth Circuit 7/21/83 1 D.Md. AFFIRMED	{ "pile_set_name": "FreeLaw" }
1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 31,406 10 CIPRIANO BOTELLO, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Lisa C. Schultz, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Cipriano Botello 18 Hobbs, NM 19 Pro Se Appellant 20 MEMORANDUM OPINION 21 FRY, Judge. 22 Defendant Cipriano Botello appeals the district court’s denial of his motion for 23 reconsideration of sentence. This Court filed a notice of proposed summary 1 disposition on September 21, 2011, proposing to dismiss the appeal because 2 Defendant’s notice of appeal was filed one day late. Defendant filed a memorandum 3 in opposition on October 3, 2011, which we have given due consideration. 4 Unpersuaded, we dismiss Defendant’s appeal. 5 Rule 12-201(A)(2) NMRA requires that a notice of appeal shall be filed “within 6 thirty (30) days after the judgment or order appealed from is filed in the district court 7 clerk’s office.” The New Mexico Supreme Court has held that timely filing a notice 8 of appeal is a mandatory precondition to this Court’s exercise of jurisdiction. Trujillo 9 v. Serrano, 117 N.M. 273, 277-78, 871 P.2d 369, 373-74 (1994). 10 Our review of the record shows that the order denying Defendant’s motion to 11 reconsider sentence was filed on May 10, 2011. [RP 361] Defendant, acting pro se, 12 filed his notice of appeal thirty-one days later on Friday, June 10, 2011. [RP 363] 13 Accordingly, the mandatory precondition has not been met, nor has Defendant pointed 14 out any unusual circumstances, such as late filing caused by an error of the court, that 15 might provide a sufficient reason to overlook the lateness. Id. 16 For the reasons stated above, we dismiss this appeal. 17 IT IS SO ORDERED. 2 1 2 CYNTHIA A. FRY, Judge 3 WE CONCUR: 4 5 JAMES J. WECHSLER, Judge 6 7 TIMOTHY L. GARCIA, Judge 3	{ "pile_set_name": "FreeLaw" }
21 F.3d 430NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. CITY OF JEFFERSONVILLE, INDIANA, and JeffersonvilleDepartment of Redevelopment, Plaintiffs-Appellees,v.William A. WRIGHT, Defendant-Appellant. No. 93-1055. United States Court of Appeals, Seventh Circuit. Submitted March 15, 1994.Decided April 14, 1994. Before CUDAHY, EASTERBROOK and MANION, Circuit Judges. ORDER 1 On January 17, 1991, the City of Jeffersonville and the Jeffersonville Department of Redevelopment filed suit in state court seeking to acquire by eminent domain several parcels of real estate belonging to William A. Wright. See Ind.Code Sec. 32-11-1 et seq. Nine lienholders were also named as defendants. Citing 28 U.S.C. Secs. 1331, 1441, and 1443, Wright petitioned to remove the case to federal district court on the ground that it involved the adjudication of constitutional rights which he could not effectively vindicate in state court, as he is currently serving a prison sentence in Kentucky. Wright now appeals from the district court's order remanding the case to state court. 2 Wright filed a notice of removal on October 14, 1992, claiming that he first became aware that the case was removable when the plaintiffs filed a brief in state court which asserted that the court possessed the authority to enter judgment against Wright without him being present. That brief was filed in the Clark Circuit Court on September 18, 1992. Acting sua sponte, the district court ordered the case remanded to state court on the grounds that removal was not accompanied by the requisite filing fee and was untimely under 28 U.S.C. Sec. 1446(b), and that Wright's claim that he could not receive due process in state court was "entirely spurious." 3 An order remanding a case to state court on one of the grounds listed in Sec. 1447(c) is not appealable, unless the case was removed pursuant to Sec. 1443. In re Amoco Petroleum Additives Co., 964 F.2d 706, 708 (7th Cir.1992); 28 U.S.C. Sec. 1447(d). The plaintiffs contend that Sec. 1443 does not apply to this case, and that the remand order is not subject to our review under Sec. 1447(d). The record establishes that Wright sought to remove this case to federal court on several grounds, including 28 U.S.C. Sec. 1443, and that the district court concluded that his invocation of Sec. 1443 was without merit. We therefore have jurisdiction to review this determination. 4 Section 1443(1) provides for the removal of a civil action commenced in state court "[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, ..." 28 U.S.C. Sec. 1443(1). The Supreme Court has determined that a case may be removed under this provision only if the petitioner is deprived of a right secured by a federal law that specifically deals with racial equality. Johnson v. Mississippi, 421 U.S. 213, 219 (1975). Section 1443 does not apply to protect rights guaranteed by constitutional or statutory provisions of general applicability, such as the Due Process Clause of the Fourteenth Amendment. Id.; Georgia v. Rachel, 384 U.S. 780, 792 (1966); J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267, 269 n. 2 (7th Cir.1990). Because Wright has not alleged that he has been deprived of any right that is specifically defined in terms of racial equality, the district court was correct in concluding that he could not use Sec. 1443 as a basis for removing this case to federal court. 5 Insofar as Wright generally invoked the federal question jurisdiction of the district court, 28 U.S.C. Sec. 1331, and the district judge remanded the case on the basis of defects in removal procedure (including the fact that Wright's petition was untimely under 28 U.S.C. Sec. 1446(b)), we are without jurisdiction to review the merits of that aspect of the judge's order. See In re Amoco, 964 F.2d at 708; 28 U.S.C. Sec. 1447(c)-(d). 6 AFFIRMED in part, DISMISSED in part. After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record	{ "pile_set_name": "FreeLaw" }
FIFTH DIVISION December 31, 2001 No. 1-99-1888 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS VASQUEZ, Defendant-Appellant. ))))) )))) Appeal from the Circuit Court of Cook County Honorable Colleen McSweeney-Moore, Judge Presiding. JUSTICE QUINN delivered the opinion of the court: Defendant, Luis Vasquez, was charged by indictment with first degree murder, armed robbery and aggravated battery. Following a jury trial defendant was found guilty of armed robbery and acquitted of the other charges. After the verdict, the State moved to have defendant, who was 16 at the time of the offense, sentenced as an adult. The trial court granted the motion and defendant was sentenced to a term of 30 years' imprisonment in the Illinois Department of Corrections. Defendant now timely appeals. On appeal defendant argues that his case must be remanded for a new sentencing hearing where: (1) the sentencing statute under which defendant was charged as an adult is unconstitutional as being violative of the single subject rule; (2) the trial court abused its discretion in failing to take into account all statutory factors enumerated in the sentencing statute; and (3) defendant's sentence was disparate to that of his codefendants. I. Background The pertinent facts of the case involve the events that took place during the evening hours of January 24, 1997. Assistant State's Attorney Kari Mason testified at trial that she was assigned to investigate the first degree murder and armed robbery of Joaquin Diaz. Mason stated that after speaking with detectives assigned to the case, she met with the sixteen-year-old defendant at Area 1 police headquarters on January 27, 1997. Defendant's mother was present for this interview. After advising defendant of his Miranda rights, defendant stated that on January 24, 1997, at 8 p.m. he was with Claudio Martinez, Anthony Saucedo and Marcos Sanchez in a van driving around. Defendant told Mason that while driving they saw two members of the Party People gang, a gang which was a rival of his gang. Defendant stated that he was a member of the La Raza gang. Defendant stated that they stopped the van and exited the vehicle looking to fight with the Party People. Defendant said that as they approached the two Party People, he noticed that there was nothing in their hands. He said that one of "his boys" threw a bottle at one of the Party People. Defendant told Mason that the person who was struck picked up the bottle and threw it back, striking defendant in the eye. Defendant stated that he then approached the person who threw the bottle at him and punched him in the head. He said that he saw his friend Anthony Saucedo, also know as T-Bone, with a stick or pipe. Mason testified that at that point defendant's mother told defendant not to answer any more questions. Mason also stated that she observed defendant's left eye was bruised and cut. Ivan Flores testified for the State under a grant of use immunity. Flores testified that on January 24, 1997, he was a member of the La Raza gang and was nicknamed "Little Popeye." Flores stated that defendant was also a member of La Raza on that date and that his nickname was "Popeye." Flores testified that he was riding in a van on January 24, 1997, with defendant, Martinez (nicknamed "Flaco"), Saucedo (nicknamed "T-Bone"), Sanchez (nicknamed "Pelon") and two girls, drinking beer. Flores said that while riding in the van someone yelled there were some Party People. Flores stated that the van stopped and Pelon, T-Bone, Flaco and Popeye got out of the van. Flores testified he saw a bunch of people fighting and beating each other, but he was unable to identify each person's exact activity. Flores testified that he saw one of the four La Raza gang members with a pipe striking one of the Party People, but he could not identify which of the four it was. Assistant State's Attorney John Maher then testified that on January 26 he obtained a written statement from Flores. Flores' statement provided a more detailed version of the incident. Maher testified that Flores told him that Martinez exited the van with a beer bottle. Flores stated Saucedo had a pipe in the van, but Sanchez actually exited the vehicle with that pipe. Maher also testified that Flores told him that one of the Party People, the one who was hit with the bottle, was "getting his ass kicked by three or four La Raza guys" while the other Party People member had run away. Flores told Maher that Martinez hit one of the two mem over the head with a bottle. Additionally, Flores told Maher that defendant came back to the van wearing the leather coat of the boy whom everyone was "stomping." Maher stated that Flores read the statement, reviewed it, made corrections and signed every page. Urbano Alvarez testified, through the assistance of an interpreter, that on January 24, 1997, at around 8 p.m., he left his house with Joaquin Diaz headed for Diaz's house on Washtenaw Avenue. Alvarez stated that both he and Diaz were wearing leather jackets that evening. Alvarez testified that while crossing 60th Street, he noticed a group of people, all dressed in black, walking toward them. Alvarez said he turned around and saw a van behind them. Alvarez stated that one of the people in the group, whom he later identified as Martinez, pulled off his hood, said "La Raza ------------" and hit Diaz with a beer bottle. Alvarez stated that a different person, whom he later identified as Saucedo, had a metal or wood pipe. Alvarez stated that while he was held by the arm, he saw about four people beating Diaz, who was lying on the ground. Alvarez testified that he managed to free himself and run toward Diaz's home to get help from Alfredo Monroy and James Monroy, Diaz's cousins. Alvarez stated that the group was still beating Diaz when he left. Alvarez said that when he returned, Diaz was lying on the opposite side of the street covered in blood. Jamie Monroy testified that on January 24, 1997, Urbano came to his house on Washtenaw Avenue, yelling that Diaz was being beaten. Jamie was living at that house with his brother Alfredo, Diaz and two friends. Jamie testified that as he left the house, shortly after Urbano and Alfredo, he saw a blue van parked in front of his house. Jamie stated that he walked slowly past the van and then ran to where Diaz was lying on the ground. Jamie testified that Diaz was covered in blood and that when he put his hands behind Diaz's head he felt that the back of Diaz's head was open. Alfredo Monroy testified that after Urbano came to the house he ran to where Diaz was being beaten. Alfredo testified that he saw Diaz on the ground and another "guy" beating him in the chest and face. Alfredo said he yelled and the "guy" pulled Diaz's jacket off and ran through a passage way between two houses. Alfredo later identified Sanchez in a lineup as the person still on top of Diaz as they approached. Dr. Mitra Kalelkar, assistant chief medical examiner, testified that on January 26, 1997, she performed an autopsy on Joaquin Diaz. Dr. Kalelkar testified regarding the extensive injuries to Diaz's head. Dr. Kalelkar noted very severe hemorrhages underneath the scalp, a fractured and depressed skull cap and a severely contused brain. In Dr. Kalelkar's opinion, these injuries were consistent with being struck with a metal pipe. Dr. Kalelkar opined that Diaz died as a result of extensive cranial cerebral injuries. Defendant testified on his own behalf at trial. Defendant admitted that in January of 1997 he was a member of the La Raza gang. Defendant testified that on January 24, 1997, he was with T-Bone, Flaco, Pelon, Little Popeye, and two girls "drinking and smoking weed" in a van. Defendant stated that while driving around in the area of 59th and Washtenaw, he and Flaco (Martinez) exited the van at a friend's house. Defendant testified that at that point they saw two Party People walking towards them. Defendant admitted that 59th and Washtenaw was Party People territory and that the Party People gang was at war with the La Raza gang. Defendant stated that when they approached the Party People, a fist fight began. Defendant stated he was hit with a beer bottle near his eyebrow. Defendant testified that at that point he returned to the van and left Martinez still fighting. He saw T-Bone (Saucedo) exit the van with a pipe. Defendant testified that	{ "pile_set_name": "FreeLaw" }
200 F.Supp.2d 1346 (2002) Donnie GRANGER, et al., Plaintiffs, v. Marshall J. WILLIAMS, Jr., Defendant. Kenneth E. Lightner, et al., Plaintiffs, v. Marshall J. Williams, Jr., Defendant. Nos. CIV.A. 00-D-1175-N, CIV.A. 00-D-1705-N. United States District Court, M.D. Alabama, Northern Division. January 24, 2002. 1347 A. Wesley Pitters, A. Wesley Pitters, P. C., Montgomery, AL, for Plaintiffs. C. Winston Sheehan, Jr., Allison L. Alford, Ball, Ball, Matthews & Novak, P.A., Montgomery, AL, for Defendant. MEMORANDUM OPINION AND ORDER DE MENT, District Judge. Before the court is a Motion For Summary Judgment ("Mot."), which, along 1348 with a supporting brief, was filed by Defendant Marshall J. Williams, Jr., ("Williams") on November 14, 2001. (Doc. Nos. 13, 14.) Plaintiffs Donnie Granger, Johnny Wilson, Kenneth Lightner, Richard Johnson, and Evelyn Person ("Granger", "Wilson", "Lightner", "Johnson", "Person", and collectively "Plaintiffs") jointly filed a Response ("Resp.") on December 14, to which Williams filed a timely Reply on December 20. (Doc. Nos. 24, 26.) Accompanying said Reply were three Motions to Strike, to which Plaintiffs have not responded. (Doc. Nos. 21-23.) However, Plaintiffs have filed a Supplemental Brief to further buttress their arguments. (Doc. No. 27.) After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Williams' Motions to Strike are due to be granted in part and denied in part; similarly Williams' Motion For Summary judgment is due to be granted in part and denied in part. I. JURISDICTION AND VENUE The court exercises subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1343(a)(3). The parties do not contest personal jurisdiction or venue. II. SUMMARY JUDGMENT STANDARD When a party moves for summary judgment, the court construes the evidence and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment is entered only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely "determine[s] whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). This determination involves applying substantive law to the pertinent facts that have been developed. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the nonmoving party, based on the applicable law in relation to the evidence presented. See id. at 248, 106 S.Ct. 2505; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If this task is satisfied, the burden then shifts to the non-moving party, which must designate specific facts remaining for trial and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An action will be dismissed when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. See id. at 587, 106 S.Ct. 1348. III. FACTUAL BACKGROUND The present matter focuses upon the hiring and promotion practices of Williams, the white Sheriff of Barbour County, Alabama. Plaintiffs are African-Americans who allege that Williams' practices in the employment context violated their right to Equal Protection under the law as secured by the Fourteenth Amendment. Lightner, Johnson, Granger, and Wilson ("male Plaintiffs") each allege that they applied for the position of deputy, but that Williams did not hire them on the basis of their race; Person, on the other hand, was already employed in the Barbour County jail, but she alleges that she was denied an internal promotion because of her race. 1349 Though the suits, which are brought against Williams in both his individual and official capacities,[1] originally began as two separate matters, the factual overlap compelled the court to consolidate the cases on March 1, 2001. (Doc. No. 11.) The following is an account of those overlapping facts, viewed in the light most favorable to Plaintiffs. Williams has served as the Sheriff of Barbour County since November of 1998. (Williams Dep. at 25.) Although he retained the deputies of the previous administration, he restructured the hierarchy in that, rather than there being one chief deputy, he made two captains, each designated to patrol a portion of Barbour County. (Williams Aff. ¶ 2.) Williams points out that one of these captains, Stern Neumon ("Neumon"), is an African-American, and that in his tenure he has also hired three other African-Americans. (Id. at 2, 3.) Additionally, he contends that he extended job offers to a number of African-Americans who simply did not accept them. (Id. at 3.) He does acknowledge that he did not extend offers to the male Plaintiffs and that he did not promote Person, but he also contends that he likewise did not extend offers to several white applicants. (Williams Dep. at 88-89, 160; Williams Aff. at 4.) Nevertheless, Williams admits that, in the end, each of the respective positions sought by Plaintiffs was filled by a Caucasian. (Williams Aff. ¶ 8.) Prior to applying for a deputy position at Barbour County, Lightner had five years of law enforcement experience with the Clayton Police Department. (Lightner Dep. at 60-62.) Indeed, the majority of this tenure was served as a certified police officer, as he was a 1991 graduate of the Southwest Alabama Police Academy. (Id. at 61-62.) During the latter part of the last decade, Lightner worked several higher paying jobs as a security officer, but he was still a reserve officer, and, in fact, he had worked under Williams at this time. (Id. at 27-28, 71-75.) In January of 1999, Lightner submitted an application for a deputy sheriff position, and Williams informed him that he did not hire part-time deputies, but that Lightner's application would be considered if he left his full-time job as a security officer. (Id. at 31, 104.) Williams contends that, while some of his full-time deputies have part-time jobs outside the force, permitting the deputies to have additional full-time jobs would interfere with their duties. (Williams Aff. ¶ 7.) However, Neumon, Barbour County's African-American captain deputy, testifies that Williams permitted a white deputy named Robin Daniels to retain full-time employment with another police department.[2] (Neumon Aff. ¶ 14.) Lightner apparently 1350 opted to retain his full-time security officer position, for, beyond charges of racism, he offers no other evidence surrounding the denial of his application. Johnson also attended the Southwest Alabama Police Academy, having graduated in 1989. (Johnson Dep. at 47.) Thereupon he worked at the Clio Police Department for five years, the latter of which found him serving as chief of police. (Id. at 74-77.) Although he moved to Clayton where he served as a patrolman from 1994 to 1998, he returned to Clio thereafter where he was reinstated to his present position in the police force. (Id. at 77, 80.) Nonetheless, when Johnson submitted an application to Williams, he was not hired. (Williams Dep. at 88-89.) Williams contends that the rejection was based on the fact that Johnson owned and operated a game room, and because he had heard rumors suggesting that Johnson's wife sold drugs. (Id.) At the time, however, he did not inform Johnson that these were the reasons for refusing to hire him. (Id. at 101.) Granger likewise had extensive service in law enforcement prior to seeking employment under Williams. (Granger Dep. at 26-32.) With the exception of a few brief stints as a truck driver in 1990, 1993, and 1998, Granger has been employed by a number of law enforcement agencies since 1987. (Id.) In fact, he served as a deputy sheriff with the Barbour County Sheriff's Department from 1993 to 1996, and as a narcotics investigator under the Barbour County	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 9, 2004 Session OFFICE OF THE ATTORNEY GENERAL, CONSUMER ADVOCATE AND PROTECTION DIVISION v. TENNESSEE REGULATORY AUTHORITY Appeal from the Tennessee Regulatory Authority No. 03-00060 No. M2003-01363-COA-R12-CV - Filed December 21, 2005 WILLIAM C. KOCH , JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined. OPINION ON PETITION FOR REHEARING On November 29, 2005, this court issued an opinion finding that the Tennessee Regulatory Authority (Authority) failed to follow the requirements of then-existing law when it declined to convene a contested case proceeding with regard to BellSouth Telecommunications, Inc.’s “Welcoming Reward Program” tariff. Both the Authority and BellSouth have filed timely petitions for rehearing in accordance with Tenn. R. App. P. 39 with regard to portions of that opinion. I. SCOPE OF THE REMAND The Authority has expressed doubt with regard to the significance of our remand instructions in light of our conclusion that the dispute regarding the “Welcoming Reward Program” tariff is moot because the program expired before the appellate record was filed with this court. Notwithstanding the expiration of the program, we remanded the case to the Authority “for further proceedings consistent with this opinion.” This standard instruction does not require any particular action by the Authority with regard to the “Welcoming Reward Program.” It is intended to allow the Authority to take whatever actions it deems necessary to conclude this matter consistent with this court’s opinion. Depending on the facts of the particular case, these actions may be nothing more than taxing costs or collecting any applicable fees. II. THE APPLICATION OF TENN . CODE ANN . § 65-5-101(c) (SUPP. 2005) Both the Authority and BellSouth assert that we overlooked Tenn. Code Ann. § 65-5-101(c) in the portion of our opinion discussing the standards for determining whether it should convene a contested case proceeding to review a proposed tariff. This statute supplies specific standards and gives the Authority broad discretion with regard to convening a contested case proceeding. However, the statute was not in effect when the Authority considered the tariff at issue in this case.1 Our opinion measured the Authority’s actions at issue in this case against the law in effect at the time. Proceedings occurring after July 1, 2004 will, of course, be measured against Tenn. Code Ann. § 65-5-101(c) to the extent it is applicable. III. THE RIGHT OF THE CAPD AND THE BELLSOUTH COMPETITORS TO A HEARING IN THIS PROCEEDING As a final matter, both the Authority and BellSouth express concern with Section IV of our November 29, 2005 opinion in which we concluded that the CAPD and BellSouth’s competitors had not waived their right to take issue on this appeal with the denial of their petitions for a contested case hearing. They assert that instead of making a waiver argument, they were arguing that the CAPD and BellSouth’s competitors simply failed to present sufficient evidence to the Authority to warrant convening a contested case proceeding. We adhere to our conclusion that the CAPD and BellSouth’s competitors did not waive their right to insist on appeal that the Authority should have granted them a contested case hearing. We likewise adhere to our conclusions (1) that both the CAPD and BellSouth’s competitors presented particularized allegations alleging the illegality of the proposed tariff, (2) that they demonstrated specifically how they would be injured by the proposed tariff, and (3) that these matters had not been addressed by the Authority in earlier proceedings. As the law stood at the time, these showings should have been sufficient to trigger a contested case hearing. As Director Jones pointed out in his April 25, 2003 dissent to the order denying the petitions for suspension of the tariff and for a contested case hearing: The record here shows that as a result of the aggrieved entities in this docket expressing concerns that affected their interests, the majority ordered the Petitioner to make amendments to its original filing. The majority’s very actions of ordering amendments consistent with the pleadings of the aggrieved entities rendered this proceeding a de facto contested case proceeding. Here, substance over form is crucial. Nevertheless, the majority disregarded the 1 The Authority’s final order denying the petitions to suspend the tariff and to convene a contested case proceeding was filed on April 14, 2003. The effective date of Tenn. Code Ann. § 65-5-101(c) was July 1, 2004. Act of April 7, 2004, ch. 545, § 2, 2004 Tenn. Pub. Acts. 1335, 1336. -2- administrative consequences of its actions in favor of erecting a standard for the convening of a contested case that apparently requires an entity to prosecute its entire case on the front end in order to secure the judicial rights contemplated in Tennessee’s Uniform Administrative Procedures Act. The filings of the CAPD and BellSouth’s competitors, coupled with their presentations and arguments during the proceedings before the Authority, provided ample basis for convening a contested case proceeding.2 IV. The petitions for rehearing filed by the Authority and BellSouth are denied. We tax the costs related to these petitions in equal proportions to the Tennessee Regulatory Authority and to BellSouth Telecommunications, Inc. _______________________________ WILLIAM C. KOCH, JR., P.J., M.S. 2 This result could conceivably have been different had this proceeding taken place after July 1, 2004 because Tenn. Code Ann. § 65-5-101(c)(3)(C)(i) would have required the complaining party to demonstrate a “substantial likelihood of prevailing on the merits of its complaint. . . .” -3-	{ "pile_set_name": "FreeLaw" }
837 F.2d 1093 Wachterv.City of Mobile* NO. 87-7089 United States Court of Appeals,Eleventh Circuit. JAN 14, 1988 1 Appeal From: S.D.Ala. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 23	{ "pile_set_name": "FreeLaw" }
THE STATE OF SOUTH CAROLINA In The Court of Appeals The State, Respondent, v. Jermaine Marquel Bell, Appellant. Appellate Case No. 2017-001500 Appeal From Chester County Paul M. Burch, Circuit Court Judge Opinion No. 5742 Heard March 10, 2020 – Filed July 8, 2020 REVERSED Appellate Defender David Alexander and Appellate Defender Sarah Elizabeth Shipe, both of Columbia, for Appellant. Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, and Senior Assistant Attorney General W. Edgar Salter, III, all of Columbia; and Solicitor Randy E. Newman, Jr., of Lancaster, for Respondent. GEATHERS, J.: Jermaine Bell appeals his conviction of murder, for which he was sentenced to life imprisonment. Bell argues the circuit court erred in allowing the decedent's husband and daughter to testify regarding statements purportedly made by the decedent indicating that she believed Bell was stealing from her. We reverse. FACTS The decedent, Judy Lindsay, and her common law husband, Mitchell Mayfield, lived in Chester County. Judy and Mayfield had one son, two daughters, and several grandchildren. Their youngest daughter, Jessica, lived at home with Judy, Mayfield, and Jessica's children. The family was well known in their neighborhood, and people would often gather to socialize on the family's front porch. One such person was Jermaine Bell, who was friends with Jessica and her brother. The family had a unique relationship with Bell, as they often ran him off or told him not to come around, only to invite him over later or allow him back, oftentimes after he procured sodas or other drinks for the family. During the weekend of Judy's death, Bell, who was transient, spent the night of Friday, September 11, 2015, on the family's couch. On Saturday, September 12, 2015, Bell was gone before anyone else woke up. That same day, Judy and Jessica attended a funeral before Judy went to church to sing with the choir. After returning from church, Judy changed into a pair of pants and a t-shirt. Judy joined Jessica, who had been drinking alcohol,1 on the porch to smoke a cigarette. Mayfield also joined them on the porch before going to bed around 11:00 or 11:30 p.m.2 At some point, Jessica telephoned Bell and invited him to join them on the porch. When Bell arrived, Jessica gave him a shot of liquor. After socializing on the porch for a while, Jessica called her cousin and asked him to take her to get something to eat. When she returned about fifteen to twenty minutes later, Judy and Bell were still on the porch, and Bell was still drinking. Upon finishing her food, Jessica smoked a cigarette and went to bed around 12:30 or 12:45 a.m. As Jessica was heading to bed, Judy indicated that she was going to stay on the porch until she finished her cigarette. Bell was still on the porch with Judy when Jessica went to bed. On Sunday, September 13, 2015, Mayfield woke up around 5:00 or 6:00 a.m. As part of his usual morning routine, Mayfield made himself some coffee, emptied his trash, and burned his trash in a burn barrel. Mayfield did not see Judy that morning, but assumed she was sleeping in the room with Jessica. However, while he was burning his trash, Mayfield noticed Judy's socks, shoes, and scarf were strewn 1 Judy and Mayfield did not drink alcohol. 2 Prior to going to bed, Mayfield and Judy got into an argument over whether Mayfield would attend a church event with her on Sunday and what he would wear. When Mayfield did go to bed, one of the couple's grandchildren slept in the bed with him. around the yard. Believing that the grandkids had thrown Judy's clothes into the yard, Mayfield woke Jessica up and told her to get up and have the kids clean the yard.3 Jessica asked Mayfield if he knew where Judy was, and Mayfield responded that he did not but indicated that Jessica should get up and try to locate Judy. After waking up, Jessica went outside and began panicking when she could not find Judy. Jessica started calling family members to ask if they had seen Judy. Additionally, Jessica tried to call Bell because she knew he was the last person to see Judy. When that proved unsuccessful, Jessica and a family friend drove to Herman "Bo" Weldon's house, where Bell was supposedly staying, but no one answered the door. However, while on the porch, Jessica spotted the black shoes Bell had been wearing the night before and noticed that they were covered in mud. At some point, Jessica finally got a hold of Bell and asked if he knew what happened to Judy, to which Bell responded, "Ask Mango.[4]" Thereafter, Jessica returned home to continue looking. When Mayfield and Jessica went back into the yard, Mayfield noticed what appeared to be drag marks. He attempted to follow the drag marks but could not follow them once they led into the tall grass. Mayfield then looked around the neighbor's yard and found one of Judy's shirts and her keys. At that point, Mayfield informed Jessica that he was calling the police. Around 9:35 a.m., Officer John Kelly of the Chester County Sheriff's Office was dispatched to investigate a reported missing person. Officer Kelly arrived on the scene at 9:41 a.m. and was met by Mayfield and Jessica, who explained that Judy was last seen on the porch with Bell. Mayfield took Officer Kelly to the side of the house where he found Judy's clothes. Once in the yard, Officer Kelly noticed the drag marks, noting that they went through the dirt, around the back side of the house, and into the next-door neighbor's yard. Mayfield then offered to show Officer Kelly where he had found Judy's shirt and keys, but Officer Kelly decided to call for detectives and a dog. Officer Kelly taped off the crime scene and continued talking with Mayfield and Jessica.5 At some point, Mayfield pointed out that Bell was walking down the street towards the crime scene, and Officer Kelly made contact 3 On cross-examination, Jessica was presented with her earlier statement in which she indicated that she had woken herself up around 7:00 a.m. and subsequently roused Mayfield. 4 "Mango" is Mayfield's nickname. 5 The crime scene comprised Judy and Mayfield's house, their next-door neighbor's house, and an abandoned house on the other side of their neighbor. with him. Bell gave detectives his version of the night's events, indicating that he left the house after Judy went to bed around 12:30 or 1:00 a.m. Bell then agreed to be interviewed, and a detective placed him in a squad car and transported him to the Chester County Sheriff's Office.6 Prior to the interview, Bell consented to a buccal swab. Around 10:55 a.m., Officer Randy Clinton of the York County Sheriff's Office's K-9 Division received a call in reference to using a bloodhound to track a missing person. Officer Clinton arrived on scene and "scented" the dog off a pair of Judy's socks. The dog led Officer Clinton through Judy and Mayfield's yard, past their neighbor's house, around a fence and rosebush, past Judy's shirt and keys, and to the backyard of an abandoned house. The dog continued to lead Officer Clinton to the back side of a tin storage shed behind the abandoned house. Officer Clinton then found Judy's naked body lying face down behind the storage shed. Following the discovery of Judy's body, the South Carolina Law Enforcement Division (SLED) was contacted to assist on the case. Thereafter, three SLED agents arrived on scene at 1:31 p.m. While on the scene, the SLED agents collected or marked multiple pieces of evidence, including Judy's orange t-shirt and several footwear impressions. Additionally, the agents took a buccal swab from Mayfield. After spending most of the day on site, law enforcement cleared the scene and took down the crime scene tape around 7:20 p.m. After clearing the murder scene, law enforcement investigated several other locations, including Weldon's house. Once there, officers collected a pair of black Coogi shoes based on Jessica's tip that they were the same shoes Bell had worn the night before. However, by the time officers found the shoes, they were wet and appeared to have been washed. Meanwhile, at the crime scene, Mayfield and his sister7 were walking around the yard to see if they could find any more items. Mayfield testified that while walking near the location where Judy's body was found, the two found a plastic bag filled with Judy's underwear and a missing ashtray.	{ "pile_set_name": "FreeLaw" }
2 Mich. App. 506 (1966) 140 N.W.2d 782 QUINLAN v. GUDES. Docket No. 776. Michigan Court of Appeals. Decided March 22, 1966. Leave to appeal denied May 25, 1966. 507 E.R. Whinham, Jr., for plaintiffs. Moll, Desenberg, Purdy, Glover & Bayer (Harold B. Desenberg, of counsel), for defendant. Leave to appeal denied by Supreme Court May 25, 1966. See 377 Mich 712. LESINSKI, C.J. The plaintiffs, Villana P. Quinlan and her husband James F. Quinlan, commenced this action in the circuit court for the county of Wayne on December 15, 1964, to recover for injuries suffered "because of excessive exposures to X rays" given by the defendant medical doctor to Villana P. Quinlan for the treatment of facial skin eruptions. The defendant filed a motion for summary judgment[1] and for accelerated judgment[2] invoking the statute of limitations, CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805), as an affirmative defense. On the basis of the affirmative defense, the trial court granted defendant's motion and dismissed the case. From this ruling, appeal was taken. In August of 1952 the plaintiff, Mrs. Villana Quinlan, sought out the defendant for treatments for her facial skin eruptions. X-ray treatments were given to Mrs. Quinlan from August of 1952 through June of 1954. In January of 1963 when she was operated on for cancer of the soft palate, the plaintiffs were informed by the surgeon who operated on Mrs. 508 Quinlan "that the cause of the cancer was the receiving of X-ray treatments." Suit for malpractice was begun 23 months after the discovery of the cancer. The question facing this Court revolves around the effective date of the section limiting actions for malpractice found in the revised judicature act, hereinafter called RJA.[3] Plaintiffs contend that this cause of action, having arisen prior to January 1, 1963, the date the revised judicature act (RJA) went into effect (see CLS 1961, § 600.9911 [Stat Ann 1962 Rev § 27A.9911]), the action is controlled by the statute of limitations in effect at the time the cause of action arose, namely CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605). It is the defendant's contention, on the other hand, that since this action was begun in December of 1964, it should be controlled by the new statute of limitations created by the RJA, namely CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805) and by CLS 1961, § 600.5838 (Stat Ann 1962 Rev § 27A.5838). This question must be considered the crux of the case as by its determination the remaining issue of when does the statute of limitations begin to run is readily resolved. The effectuating clause of the RJA, CLS 1961, § 600.9911 (Stat Ann 1962 Rev § 27A.9911) states that "This act shall become effective on January 1, 1963." As of that date the various sections of the RJA were to be considered the law of this State, but as to a right accruing, accrued, or acquired prior to this date, the statute CLS 1961, § 600.9905 (Stat Ann 1962 Rev § 27A.9905[1]) states: "Except as specifically stated or reasonably inferred from the provisions of this act, this act shall 509 not impair or affect any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time this act takes effect, but the same may be enjoyed, asserted, enforced, prosecuted, or inflicted as if the act had not been passed." (Emphasis supplied.) The treatments in this case were done and completed nine years prior to the effective date of the RJA. Though the plaintiffs did not discover their rights to a cause of action in this case until the RJA was in effect, it is the Court's view they had acquired these rights prior to January 1, 1963. This Court deems this case to be of the exact type contemplated by the legislature when it enacted CLS 1961, § 600.9905 (Stat Ann 1962 Rev § 27A.9905). It is, therefore, this Court's construction that this case is controlled by CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605) as to when the statute of limitations began to run against the plaintiffs. There are two basic theories of the running of statutes of limitations in malpractice cases. The first theory is the "last treatment"[4] rule. This theory contemplates that the statute of limitations in malpractice actions begins to run as soon as the plaintiff discontinues receiving treatments or service from the accused professional. The other theory commonly known as the "discovery rule" was laid down in Johnson v. Caldwell (1963), 371 Mich 368 as the rule in Michigan in malpractice cases prior to the institution of the RJA. As Justice O'HARA stated in the Johnson Case at page 379: 510 "Simply and clearly stated the discovery rule is: The limitation statute or statutes in malpractice cases does not start to run until the date of discovery, or the date when, by the exercise of reasonable care, plaintiff should have discovered the wrongful act." The Court continued at page 379: "We are persuaded we should adopt the rationale of the discovery rule." Thus, using the rule enunciated in the Johnson Case, the plaintiffs timely instituted this action within the limitation under CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605) which is two years from the time of discovery of the malpractice. This cause is remanded to the trial court for entry of an order setting aside the accelerated judgment and for this cause to be set for trial. Costs to the appellant. QUINN and WATTS, JJ., concurred. NOTES [1] GCR 1963, 117. REPORTER. [2] GCR 1963, 116.1(5). REPORTER. [3] CLS 1961, § 600.101 et seq. (Stat Ann 1962 Rev § 27A.101 et seq.) [4] The RJA, CLS 1961, § 600.5838 (Stat Ann 1962 Rev § 27A.5838) has instituted the above-named rule for determining the running of the statute of limitations in malpractice cases. It has been the determination of this Court that this statute only affects those causes of actions accruing after January 1, 1963.	{ "pile_set_name": "FreeLaw" }
681 F.2d 61 10 Fed. R. Evid. Serv. 1038 UNITED STATES of America, Appellee,v.Nicholas Anthony MOCCIA, Defendant, Appellant. No. 81-1532. United States Court of Appeals,First Circuit. Argued April 9, 1982.Decided June 16, 1982. John A. Macoul, Lawrence, Mass., by appointment of the Court, for appellant. Helen J. Forsyth, Asst. U. S. Atty., Concord, N. H., with whom W. Stephen Thayer, III, U. S. Atty., Concord, N. H., was on brief, for appellee. Before CAMPBELL, BOWNES, and BREYER, Circuit Judges. BREYER, Circuit Judge. Defendant/appellant Nicholas Moccia was convicted of possessing two drugs-marijuana and diethylpropion-with intent to distribute. 21 U.S.C. §§ 812 (Schedule I(c)(10)), 841; 21 C.F.R. § 1308.14(e)(1) (1981). He was sentenced under the "Dangerous Special Drug Offender" statute, 21 U.S.C. § 849, to two concurrent fifteen-year terms. He attacks his conviction and sentence on several grounds. In our view, both must stand. 1. Defendant's first claim is that the trial court erred in allowing the Government to tell the jury that he had previously been convicted in state court for possession of marijuana. The relevant federal rule of evidence is 404(b), which states,Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This rule codifies the common law doctrine forbidding the prosecution from asking the jury to infer from the fact that the defendant has committed a bad act in the past, that he has a bad character and therefore is more likely to have committed the bad act now charged. Although this "propensity evidence" is relevant, the risk that a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment-creates a prejudicial effect that outweighs ordinary relevance. 2 Weinstein's Evidence P 404(04) at 404-26 (1980); Note, Procedural Protections of the Criminal Defendant-A Reevaluation of the Privilege Against Self-Incrimination and the Rule Excluding Evidence of Propensity to Commit Crimes, 78 Harv.L.Rev. 426, 436 (1964). Where the evidence has some "special" probative value, however,-where, for example, it is relevant to something other than mere "character" or "propensity,"-it "may " be admitted. The trial judge then must weigh the special relevance against the prejudicial risk, taking into account the likely hostile jury reaction that underlies the common law rule. United States v. Halper, 590 F.2d 422, 432 (2d Cir. 1978); 2 Weinstein's Evidence §§ 404(08), 404(18). See also United States v. Byrd, 352 F.2d 570, 574-75 (2d Cir. 1965) (Friendly, J.). 1 In this case there was a "special" factor making the past conviction more than an effort to produce a "bad character/propensity" chain of inference. Evidence was introduced showing that federal agents had found marijuana and diethylpropion buried under some dog food in the freezer room of the farmhouse where defendant lived with his wife (the owner). Bags of marijuana were also found in the barn under a chicken coop. While defendant offered to stipulate that he knew marijuana and diethylpropion were "controlled" substances, and that whatever he did, he did "knowingly" and "intentionally," cf. United States v. Mohel, 604 F.2d 748 (2d Cir. 1979), he would not stipulate that he knew the drugs were in the freezer room or under the chicken coop. By introducing the past conviction, the Government thus, in part, sought to have the jury infer that one who lives on a farm with marijuana in the freezer room and under the chicken coop and has a prior possession conviction is more likely to know about the presence of marijuana than one who lives on such a farm and does not have a past possession conviction. 2 Such an inference would not have been difficult to draw. The jury might have thought a past possessor is more likely to associate with those who use and keep and talk freely about nearby marijuana; it might have thought a past possessor is more likely to spot marijuana under a chicken coop; it might have thought a past possessor is less likely to throw away marijuana if he comes across it. None of these inferences-all supporting a conclusion of "knowledge"-depends entirely upon the "bad character/propensity" chain of reasoning. See United States v. Sinn, 622 F.2d 415, 416 (9th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980). Cf. United States v. Merryman, 630 F.2d 780, 786 (10th Cir. 1980). But see United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979). Thus, they escape the absolute bar of the Rule's first sentence. 3 The question of balancing relevance and risk is more difficult, but we believe that the trial court acted within its discretion. United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975); 2 Weinstein's Evidence P 404(18) at 404-110 & n.16. On the one hand, the court refused to allow the Government to do more than simply read the prior charge. It instructed the jury to consider the conviction only for its tendency to show knowledge or intent and to ignore whatever light it shed on character or propensity. And the prior conviction (for possession of "more than one pound" of marijuana) was not for a shocking or heinous crime likely to inflame the jury. 4 On the other hand, there was so much other evidence of guilt in the case that it is difficult to believe the prior conviction was needed. Drug-related equipment was found in public rooms on the farm. Large amounts of cash were found in the defendant's room. The defendant and his wife sold the farm and fled from New Hampshire one month before they were initially to be tried (four years ago). And, the defendant had made two highly incriminating admissions: the day of the search he told one of the agents that they should have waited a few days to raid the farm as the Mexican crop had not yet been harvested. The next day he told two deputy marshals (in their words) that the Government 5 really blew it. I was going to get two tons of marijuana. In fact, I was talking to the guy on the phone when you raided the place.... I really needed the two tons to get out of the hole, ... but after this, ... I'll never hear from the guy again. 6 In the face of this evidence, the defense presented no witnesses. 7 While all this evidence lessened the need for introducing the prior conviction, it also lessened the likelihood of any prejudicial effect-to the point where, even were we to find the evidence inadmissible (which we do not), the error would have been harmless. See United States v. Bosch, 584 F.2d 1113, 1117-18 (1st Cir. 1978); 2 Weinstein's Evidence P 404(18) at 404-111 & n.19. 8 2. Defendant complains of the trial judge's instruction that the jury not consider any lesser included offenses "until or unless you have arrived at a reasonable doubt on the offenses charged." Defendant does not complain about the well-established rule that a jury is to consider lesser included offenses only after a determination of "not guilty" is reached on the primary charge. See 2 Devitt & Blackmar, Federal Jury Practice and Instructions § 58.15. Rather, he states that this charge somehow implied that the defendant had the burden of coming forward with evidence that would lead the jury to find a reasonable doubt. He claims the charge implied to the jury that "reasonable doubt" had to be created instead of existing from the outset. 9 We disagree. At the end of the trial, the judge charged the jury as follows: 10 Consider ... whether the government had sustained its burden of proving beyond a reasonable doubt each offense of possession with intent to distribute with which (Moccia) is charged. 11 If you find that such burden has been sustained, that is the end of the case as to him. You will have established his guilt as to such offense or offenses. If, however, you find that a reasonable doubt exists as to either or both of such offenses, you must then turn to the issue of whether he is guilty of the lesser included offenses of possession of controlled substances, and here again	{ "pile_set_name": "FreeLaw" }
991 F.2d 791 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Marcus Duke SHELTON, Plaintiff-Appellant,v.James H. MICHAEL, Jr., Defendant-Appellee. No. 92-7210. United States Court of Appeals,Fourth Circuit. Submitted: March 29, 1993Decided: April 22, 1993 Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (CA-92-833) Marcus Duke Shelton, Appellant Pro Se. W.D.Va. AFFIRMED. Before LUTTIG, Circuit Judge, and BUTZNER and CHAPMAN, Senior Circuit Judges. PER CURIAM: 1 Marcus Duke Shelton appeals from the district court's order dismissing without prejudice his complaint filed pursuant to 42 U.S.C. § 1983 (1988). Our review of the record and the district court's opinion discloses no abuse of discretion and that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court.* Shelton v. Michael, No. CA-92-833 (W.D. Va. Nov. 2, 1992). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED * As the district court found, these claims should be brought in a motion made pursuant to 28 U.S.C. § 2255 (1988)	{ "pile_set_name": "FreeLaw" }
J-S51030-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ANTOINE WILLIAMS Appellant No. 2698 EDA 2014 Appeal from the Judgment of Sentence August 19, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010129-2013, MC-51-CR-0011641-2013 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.* MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 01, 2015 Antoine Williams appeals from the judgment of sentence imposed in the Court of Common Pleas of Philadelphia County, following his convictions for robbery – theft by removing money from a financial institution by making a demand on an employee,1 and related offenses. The trial court set forth the factual history of this case as follows: On December 9, 2011, Ms. Delnisha Sims was working as a bank teller inside a branch office of Sovereign Bank located at 101 East Olney Avenue in Philadelphia when, at about 5:18 p.m., she looked over to her co-worker, Elsa Febes, and noticed that Ms. Febes was red in the face, shaking and appeared to be scared. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 3701(a)(1)(vi). J-S51030-15 Suddenly, Ms. Febes screamed, “Oh, my God. I just got robbed.”1 1 An examination of Ms. Febes’ cash drawer following the robbery showed that it was short $3,303.65. This fact was entered as a stipulation. Ms. Sims immediately observed a person fleeing the bank. Post incident Sims was shown photographs taken from the bank’s surveillance system, and stated that the person depicted in the photographs was the person she saw fleeing the bank. Ms. Sims also provided police with a description of the person approximately five minutes after the robbery occurred. Detective Steven Jefferson, the assigned investigator, recovered a black leather aviator hat outside the entrance of the bank along with a demand note that read, “Give me your fucking money, no dye packs.” Detective Jefferson interviewed [Williams] on March 25, 2013. [Williams] denied involvement in the robbery claiming he had been in Georgia on the day the robbery was committed. The Commonwealth’s key witness was Nicole Lane, [Williams’] former paramour and the mother of two of his children. Lane [was looking at the news online] and in the course of doing so recognized [Williams] as the person depicted in the photograph accompanying the article [about] the purported robber. Lane, employed as a nurse at a correctional facility, reported her observation to her superior at work in accordance with a regulation requiring employees to report any evidence of crime. Lane also identified the hat recovered by police as belonging to [Williams] and also recognized that the handwriting on the demand note was that of [Williams]. Trial Court Opinion, 2/4/15, at 2-3. The Commonwealth charged Williams with robbery – threatening another or intentionally putting him in fear of bodily injury in the course of committing a theft,2 theft by unlawful taking,3 receiving stolen property,4 ____________________________________________ 2 18 Pa.C.S. § 3701(a)(1)(ii). (Footnote Continued Next Page) -2- J-S51030-15 and simple assault.5 On February 6, 2014, at the conclusion of a non-jury trial, the court found Williams guilty of theft by unlawful taking and receiving stolen property. The court also found him guilty of robbery – theft by removing money from a financial institution by making a demand on an employee. Williams filed a motion for extraordinary relief on February 19, 2014, which the court denied July 11, 2014. On August 19, 2014, the court sentenced Williams to eleven and one-half to twenty-three months’ incarceration plus five years’ probation for robbery, followed by two concurrent terms of two years’ probation for the theft convictions. This timely appeal followed, in which Williams raises the following issue for our review: Did the trial court improperly convict Williams of robbery as a felony of the second degree under 18 Pa.C.S. § 3701(a)(1)(vi) where he was never charged with this subsection on the bills of information or formal charging documents, the Commonwealth never amended the bills or the charges, and where Williams was never arraigned on this form of robbery? Appellant’s Brief, at 3. Williams relies, in part, on Pa.R.Crim.P. 564, which provides: _______________________ (Footnote Continued) 3 18 Pa.C.S. § 3921(a). 4 18 Pa.C.S. § 3925(a). 5 18 Pa.C.S. § 2701(a). -3- J-S51030-15 Rule 564. Amendment of Information The court may allow an information to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice. Pa.R.Crim.P. 564. Williams argues the trial court “circumvented the plain language” of the Rule. See Appellant’s Brief, at 16. He maintains that although Rule 564 permits the court to allow amendments requested by the Commonwealth, the court may not amend an information sua sponte. Williams further asserts that the amendment was improper because it occurred after the close of evidence. However, Rule 564 “is a starting point only . . . because our courts apply the rule with an eye towards its underlying purposes and with a commitment to do justice rather than be bound by a literal or narrow reading of the procedural rules.” Commonwealth v. Grekis, 610 A.2d 1284, 1289 (Pa. Super. 1992). “The caselaw sets forth a broader test for the propriety of amendments than the plain language of the rule suggests.” Commonwealth v. Mosley, 585 A.2d 1057, 1060 (Pa. Super. 1991). Our disposition of this matter is informed by In re D.G., 114 A.3d 1091 (Pa. Super. 2015), where this Court noted: In Commonwealth v. Mentzer, 18 A.3d 1200 (Pa. Super. 2011), we set forth our considerations in determining whether the trial court erred in permitting the amendment of the information. -4- J-S51030-15 [W]hen presented with a question concerning the propriety of an amendment, we consider: [w]hether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted. Additionally, [i]n reviewing a grant to amend an information, the Court will look to whether the appellant was fully apprised of the factual scenario which supports the charges against him. Where the crimes specified in the original information involved the same basic elements and arose out of the same factual situation as the crime added by the amendment, the appellant is deemed to have been placed on notice regarding his alleged criminal conduct and no prejudice to defendant results. Further, the factors which the trial court must consider in determining whether an amendment is prejudicial are: (1) whether the amendment changes the factual scenario supporting the charges; (2)	{ "pile_set_name": "FreeLaw" }
16 F.Supp.2d 74 (1998) FIGAWI, INC., Plaintiff, v. Robert F. HORAN, Defendant. No. CIV. A. 97-11180-REK. United States District Court, D. Massachusetts. July 21, 1998. 75 Peter N. Baylor, Lori J. Polacheck, Nutter, McClennen & Fish, Boston, MA, Patrick M. Butler, Nutter, McClennen & Fish, Hyannis, MA, for Figawi, Inc., Plaintiffs. Roger S. Davis, Davis & Rubin, Boston, MA, for Robert F. Horan, Defendant. Memorandum and Order KEETON, District Judge. I. Procedural and Factual Background Pending for decision before the court is defendant's Motion to Dismiss and Request for Oral Argument (Docket No. 15, filed February 26, 1998). Plaintiff filed opposition (Docket No. 22, filed May 1, 1998). This case arises from the use of a logo and mark for commercial purposes by two parties. They consented to mutual use up to a point in the past, and then parted ways. At the center of the controversy are (i) the undisputed fact that only the defendant has registered the trademark at issue and (ii) plaintiff's disputed allegation that defendant should not have done this because defendant was aware of plaintiff's continued use of the logo and mark. The logo at issue depicts a male described by the parties as a "Native American" wearing a captain's hat and a feather on his head and looking through the wrong end of a telescope. The mark at issue is the name "Figawi." In particular, plaintiff has made the following allegations of fact: Early 1970s. Logo and mark "[are] developed" for promotional use in connection 76 with a boat race from Hyannis to Nantucket over Memorial Day weekend. Verified Complaint at 3 (passive voice in original). There is no mention of who designed or commenced use of the logo and mark. 1979. Defendant registers logo in Massachusetts for use on merchandise. 1980. Plaintiff corporation is formed. 1980-1989. Plaintiff uses logo and mark "with Horan's knowledge and consent." Verified Complaint at 4. At an unspecified time in this period, defendant moves to Florida and ceases to be associated with plaintiff. 1989-present. Plaintiff continues to use logo and mark. Defendant sells "T-shirts and caps, with the Figawi Mark and Logo." Verified Complaint at 7. March 28, 1989. Defendant's registration of logo expires. July 6, 1993. Defendant obtains re-registration of logo in Massachusetts. April 1997. Defendant places advertisement in Boston Globe for merchandise bearing the logo and mark. Plaintiff has filed a seven-count Verified Complaint (Docket No. 1, filed May 23, 1997). Count I of the complaint alleges that defendant's continuing use of the logo and mark described above constitutes unfair competition under the Lanham Act, 15 U.S.C. § 1125(a). Count II alleges that defendant's continuing use of the logo and mark is likely to create confusion among consumers in violation of the Lanham Act, 15 U.S.C. § 1125(a). Count III alleges that (i) defendant's use of the logo and mark in connection with a boat race in Florida dilutes the value of use of the logo and mark in connection with the boat race that plaintiff organizes in Massachusetts, and (ii) that the Massachusetts boat race preceded in time and was "famous" before the boat race in Florida. Count IV alleges trademark infringement under the common law of the Commonwealth of Massachusetts. Count V alleges common law unfair competition. Count VI alleges unfair competition and dilution under statutes of the Commonwealth of Massachusetts, including a Chapter 93A claim. Count VII alleges that defendant committed fraud in applying for renewal of trademark registration in Massachusetts of the logo and mark in 1993 by "knowingly making false statements," in his application for trademark registration. Verified Complaint at 14. The plaintiff specifically identified the following statements allegedly made by defendant: [t]hat he was using the Logo on the listed goods, that he believed himself to be the owner of the Logo, and that he believed no other person had the right in the Commonwealth of Massachusetts to use the Logo in his application for registration. Id. Plaintiff appears to assert a cause of action for fraudulent procurement of trademark registration under Mass. Gen. L. ch. 110B, § 10. With respect to all of these claims, plaintiff asks this court to order declaratory, compensatory and permanent injunctive relief. II. Which, if Any, of the Disputes over Jurisdiction and Venue Should the Court Decide Now? A core issue that none of the submissions filed by the parties addresses squarely and adequately is the extent to which, if both subject-matter and in-personam jurisdiction are shown as to one claim, under federal or state law or both, the court may and should exercise supplemental jurisdiction over one or more other claims, under federal or state law or both. Because the outcome of many of the other disputed issues of law material to the motions now pending before the court may depend on the answer to this core issue, I consider it first. Among the potential sets of circumstances that may exist when a court first considers this core issue are the following: (1) None of the claims alleged in the complaint is a claim over which the court has subject-matter jurisdiction. The only appropriate final order for the court to make in this instance is a dismissal of the civil action for lack of subject-matter jurisdiction. See United Mine Workers of *77 America v. Gibbs, 383 U.S. 715, 722, 727, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Camelio v. American Fed., 137 F.3d 666, 672 (1st Cir.1998); Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995); Brennan v. Hendrigan, 888 F.2d 189, 196 (1st Cir.1989). (2) The court has subject-matter jurisdiction over one or more claims alleged, under federal or state law or both, but none of the claims alleged in the complaint is a claim as to which the plaintiff has met plaintiff's burden of making at least a prima facie showing of in personam jurisdiction over the defendant. In this instance, the court may, and perhaps must in the absence of any material change of circumstances, either (i) dismiss the civil action for lack of in-personam jurisdiction or (ii) make an appropriate procedural order allowing plaintiff a reasonable opportunity to make a showing that the plaintiff, for good cause or excusable neglect, has not so far made. See, e.g., Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (both subject-matter and in-personam jurisdiction must be present); Media Duplication Serv. Ltd. v. HDG Software, Inc., 928 F.2d 1228, 1232 (1st Cir.1991) (lack of personal jurisdiction is sufficient to reverse judgment even when appellant challenges both subject-matter and personal jurisdiction). (3) As to one claim but not others, plaintiff has met plaintiff's burden of showing subject-matter jurisdiction and plaintiff's burden of making a prima facie showing of in personam jurisdiction and venue. In this instance, the court is authorized to determine in an exercise of discretion, that the civil action may go forward on that one claim only, but that the court will not undertake to adjudicate any issue not material to that one claim until one party or the other shows good cause for doing so. That the court is authorized to permit the civil action to go forward on that one claim is well settled. See, e.g., Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 151 (1st Cir.1995); Val Leasing Inc. v. Hutson, 674 F.Supp. 53, 55 (D.Mass.1987) (findings at trial that only supported conclusion of no personal jurisdiction with respect to some counts did not "destroy the Court's jurisdiction over [defendant] with respect to the other counts"). It is less clear that precedents have squarely considered whether, and decided that, the court may limit proceedings in the civil action to issues material to that one claim, but I conclude from the guidance that is available in precedents that this is the most supportable answer. See, e.g., United Elec., Radio and Mach. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1089 (1st Cir.1992) ("defendant's in-state conduct must form an important or at least material element of proof in the plaintiff's case"; also discussing "Gestalt factors") (citations omitted); Milford Power Ltd. Partnership v. New England Power Co., 918 F.Supp. 471, 479-80 (D.Mass.1996) (failure of plaintiff to meet burden of showing in-personam jurisdiction with respect to some claims required dismissal of those claims, even if plaintiff met burden with respect to other claims). But see also Salpoglou v. Shlomo Widder M.D., P.A., 899 F.Supp. 835, 837 (D.Mass.1995) ("Because the court has personal jurisdiction over Widder	{ "pile_set_name": "FreeLaw" }
575 F.2d 299 Smithv.Neeco, Inc.* No. 77-2711 United States Court of Appeals, Fifth Circuit 5/19/78 1 S.D.Miss. 2 AFFIRMED*** * Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409 *** Opinion contains citation(s) or special notations	{ "pile_set_name": "FreeLaw" }
636 N.E.2d 682 (1993) 263 Ill. App.3d 968 201 Ill.Dec. 250 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert GEORGE, Defendant-Appellant. No. 1-90-2005. Appellate Court of Illinois, First District, Second Division. August 17, 1993. Rehearing Denied September 29, 1993. 684 Office of the State Appellate Defender, Chicago (Michael J. Pelletier and Debra R. Salinger, of counsel), for defendant-appellant. State's Atty. of Cook County, Chicago (Jack O'Malley, Renee Goldfarb, Susan Schierl and Matthew L. Moodhe, of counsel), for plaintiff-appellee. Presiding Justice McCORMICK delivered the opinion of the court: Following a bench trial, defendant Robert George was found guilty of murder and sentenced to 20 years' imprisonment. On appeal, defendant contends that (1) he did not waive his right to a jury trial; (2) the State failed to prove beyond a reasonable doubt that he was accountable for the murder; (3) the trial court considered improper evidence against him; (4) the simultaneous joint jury and severed bench trial with three codefendants denied defendant a fair trial; and (5) the trial court improperly failed to hold a hearing on defendant's fitness to stand trial. We affirm the judgment of the trial court. I. On September 20, 1988, defendant requested severance of his trial from the trials of codefendants Thomas Basden and Shawn Downey. The trial court granted the motion. On May 8, 1989, counsel for codefendant Michael George, defendant's cousin, moved for severance from Basden and Downey. With defendant present in court, the prosecutor noted that because counsels for defendant and Michael George had indicated that they sought bench trials, the jury trial of Basden and Downey could proceed together with the bench trial of the Georges. Counsel for Michael George answered that the possibility of a bench trial had no bearing on the severance motion: "If we indicate a bench [and] on that morning [of trial], my client wishes a jury, we have to bring up a double jury * . [I]f the posture changes, we'll let you know." The court granted the severance and asked about scheduling the trial. The four attorneys agreed to a single tentative trial date for all defendants. Michael George's counsel said he anticipated a bench trial, and defendant's attorney said, "[s]ame for Robert George, ma'am, bench trial at this time." The four defendants later moved for substitution of judge. At the hearing on the motion, with defendant present in court, defendant's attorney said: 685 "There are two lawyers who have opted not to take juries and were opting for a bench trial and Judge Morgan would have to rule directly on the evidence in those cases." The court denied the motion for substitution. Defendant said nothing. At the beginning of jury selection, the trial court excused defendant from the courtroom. The next day, defendant moved for severance from Michael George. The trial court said, "[I]t seems to me since these are bench trials anyway, I don't have any problems with the severance." Neither defendant nor his counsel objected to the trial court's assertion that defendant would have a bench trial. Following a recess and before bringing the jury into court, the trial court requested opening statements for "the bench people." Defendant's attorney then made a brief opening statement to the trial court. The trial court brought in the jury and said: "[T]here [are] two other defendants whose cases you will not be hearing. Their cases are being heard by the court." The trial court permitted counsel for the Georges to introduce themselves and their clients to the jury. Defendant contends that he did not validly waive his right to a jury trial because the trial court never expressly informed him of his right to jury trial, and defendant never stated on the record that he waived his right to a jury trial. "[A] jury waiver, to be valid, must be knowingly and understandingly made. [Citations.] That determination cannot rest on any precise formula and necessarily turns on the facts and circumstances of each particular case. [Citations.] Recognizing that the accused typically speaks and acts through his attorney, we have given effect to jury waivers made by defense counsel in defendant's presence where defendant gave no indication of any objection to the court hearing the case. * * * We have not required that the record affirmatively establish that the court advised defendant of his right to a jury trial and elicited his waiver of that right [citation], nor that the court or counsel advised defendant of the consequences of the waiver." People v. Frey (1984), 103 Ill.2d 327, 332, 82 Ill.Dec. 661, 469 N.E.2d 195. Here, defendant's counsel stated in open court that defendant, like Michael George, was indicating a bench trial as of May 1989, almost a year before the trial actually began, but after the trial court granted defendant's motion for severance from Basden and Downey. The waiver at the May 1989 hearing was somewhat equivocal because defendant's attorney qualified the waiver with the phrase, "at this time." The attorney adopted the position of Michael George's counsel, who said that he anticipated a bench trial, and if the posture changed, he would inform the trial court. Neither Michael George nor Robert George ever informed the trial court of any change in the posture of their cases. Defendant failed to inform the trial court of any change in his position on the morning of trial, when the trial court again asserted that the Georges were to have bench trials, while a jury was to hear the trial of Basden and Downey. Before bringing codefendants' jury into the courtroom, the trial court requested opening statements for "the bench people." Defendant's attorney complied with this request and made an opening statement to the trial court outside the presence of the jury. Neither defendant nor his counsel objected at any time, either before or during trial to a bench trial for defendant while Basden and Downey had a jury trial. It is indeed insufferable to allow defendant to knowingly participate in a bench trial without protest or demand for a jury trial with a view that if an adverse judgment is rendered, he would be granted a new trial because of the absence of an affirmative waiver of his right to a jury trial. From the facts and circumstances of this case, we infer that defendant understood his right to a trial by jury and he knowingly waived that right. See Frey, 103 Ill.2d at 332, 82 Ill.Dec. 661, 469 N.E.2d 195. II. Defendant next argues that the evidence does not prove beyond a reasonable doubt that he is guilty of murder. Defendant does 686 not dispute evidence that on February 29, 1988, he drove a car into an alley near 39th Street and St. Louis Avenue. Basden and Downey, passengers in the car, fired shots down the alley where some boys were playing basketball. A bullet from Basden's gun killed Juan Madrigal. Defendant argues that the evidence does not show that he knew Basden had a gun or that he intended to shoot, so defendant cannot be held accountable for Basden's acts. James Pelikan, nicknamed "Jimbo," testified that on February 28, 1988, the day before the shooting, he discovered on his garage, in the alley near 39th Street and St. Louis Avenue, graffiti stating: "Jimbo and Frank dies, [Satan] Disciples, 36th and Rockwell, Two-Six Killer * * Godfather and Player." Pelikan, who was a lieutenant in a street gang called the Two-Six, has a brother named Frank. He knew that Michael George had the nickname "Godfather," and defendant was called "Player." Since 1982, Pelikan had disagreements with the Georges because they belonged to the Satan Disciples, a rival gang. Pelikan admitted that he did not see anyone put the graffiti on the garage, so he did not know exactly when it was done. Pelikan was standing near Madrigal, watching the basketball game in the alley, when defendant drove into the alley and Basden shot Madrigal. On direct examination, Pelikan said that the car from which the fatal shot was fired "pulled up" at the intersection in the alley. On cross-examination, he assented when defense counsel asked: "[A] car slowed down and some shots were fired. Is that correct?" Joe Gutierrez testified that after school on February 29, 1988, he and about 10 of his friends saw defendant and three others walking towards them as they were walking from their high school. Several of the persons with Gutierrez were members of the Two-Six. Defendant made gang hand signals for the Satan Disciples and signals to put down the Two-Six. Defendant pulled out a gun from up his pants far enough so that Gutierrez could see the handle. Defendant put his hand out front, which Gutierrez interpreted to mean "[l]ater on," but he admitted the gesture could have meant "stay back." Gutierrez and his friends went to the alley behind 39th and St. Louis and played basketball. He said that the car defendant drove stopped in the alley before the shots were fired. Ricky Cataldo, who was 14 in 1988, testified that on February 29, 1988, he went with Downey, Basden and the Georges to Basden's home to pick up Basden's father's car. Cataldo saw the other four talking, but they fell silent and all got into the	{ "pile_set_name": "FreeLaw" }
Filed 2/10/16 Robinson v. Cooper CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE STEPHEN P. ROBINSON, B262826 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. EC056563) v. DONALD E. COOPER et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Mary H. Strobel, Judge. Dismissed. Law Office of Stephen P. Robinson and Stephen P. Robinson, in pro. per., for Plaintiff and Appellant. Donald E. Cooper, in pro. per., for Defendants and Respondents. Plaintiff, Stephen Robinson, purports to appeal from the December 18, 2014 final statement of decision filed after the completion of one of two phases of a court trial. Plaintiff’s claims arose from a dispute with another attorney, former clients and three lien claimants. We noted that typically a litigant may not appeal from a statement of decision which does not resolve all of the issues between the parties. We have a duty to raise issues concerning our jurisdiction on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) Because such an order did not appear to be appealable, we issued an order to show cause concerning possible dismissal of the appeal. Plaintiff may not appeal from December 18, 2014 final statement of decision filed after the completion of one of two phases of a court trial. (Allen v. American Honda Motor Co. (2007) 40 Cal.4th 894, 901; In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1570-1571.) Further, the December 18, 2014 final statement of decision did not resolve all of the issues between the parties. An appeal may only be taken from a final judgment or order. (Code Civ. Proc., § 904.1, subd. (a)(1); Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697; Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.) Our Supreme Court has explained: “‘[A]n appeal cannot be taken from a judgment that fails to complete the disposition of all causes of action between the parties even if the causes of action disposed of by judgment have been ordered tried separately, or may be characterized as “separate and independent” from those remaining.’ (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743 [(Morehart)].)” (Griset v. Fair Political Practices Com., supra, 25 Cal.4th at p. 697.) Later in 2013, our Supreme Court again emphasized the importance of the final judgment rule: “In Morehart, we explained that the rule codified in this provision, known as the one final judgment rule, precludes an appeal from a judgment disposing of fewer than all the causes of action extant between the parties, even if the remaining causes of action have been severed for trial from those decided by the judgment. ‘A judgment that disposes of fewer than all of the causes of action framed by the pleadings, however, is necessarily “interlocutory” (Code Civ. Proc., § 904.1, subd. (a)), and not yet final, as to any parties 2 between whom another cause of action remains pending.’ (Morehart, supra, 7 Cal.4th at p. 741.) The theory of the rule is that ‘“piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 58, p. 113 [citations].)’ (Griset v. Fair Political Practices Com.[, supra,] 25 Cal.4th [at p.] 697)” (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1101.) The December 18, 2014 phase one statement of decision did not resolve all the issues between the parties. Named as defendants in the second amended complaint are Donald E. Cooper, also a lawyer, and the two attorneys’ former clients: Kevin Young Keen Chang; Jayne Eun Mee Chang; and Brandon Min Hyuk Chang. In addition, the second amended complaint alleges claims against three lien claimants, Margaret, Rick and Erik Jesmok. The prayer for relief in the second amended complaint seeks: an order that all defendants “interplead and litigate their claims” to a settlement draft; a declaration that plaintiff’s lien is entitled to priority over those of the Jesmoks; a declaration that plaintiff is entitled to judgment in an amount equal to or greater than his lien; imposition of an involuntary trust on all settlement proceeds; and reformation of an agreement. The December 18, 2014 final statement of decision did not resolve all of the disputes between plaintiff and Mr. Cooper. The amount of any final judgment was dependent upon the outcome of the trial’s second phase, which involves the former clients, the Changs, and the lien claimants, the Jesmoks. Moreover, as explained by Mr. Cooper, the parties are currently litigating cost issues arising from the December 18, 2014 final statement of decision. And that is because it would have been premature to resolve cost issues until the entry of a final judgment. Further, there is no reason to deem the appeal to be from a subsequently entered judgment. The opening brief filed January 20, 2016, is in material part unreadable. Pages 2-27 consist of 95 paragraphs of record citations following terse headings such “Chimera (Issue 2 only),” “Waiver,” “3-400(A) (Issue 1 only)” and “Cross-purposes.” Further, any issue concerning the correctness of rulings relating to Mr. Cooper’s codefendants as well as himself can be litigated in a single appeal. This case typifies the 3 concern expressed by our Supreme Court in both Kurwa and Griset that “‘piecemeal disposition and multiple appeals in a single action’” can be oppressive and costly. (Kurwa v. Kislinger, supra, 57 Cal.4th at p. 1101; Griset v. Fair Political Practices Com., supra, 25 Cal.4th at p. 697) We decline to exercise our discretion to increase the costs to the public and the parties by allowing for multiple separate appeals from a single judgment. Future briefs in future appeals filed by plaintiff should be readable and avoid the errors occurring in both previously filed opening briefs. The errors have been respectfully noted in this and the December 18, 2015 orders. No disrespect is intended by the court’s statements in this regard. And if the litigation does not settle, the record in the present appeal may used in subsequent appellate proceedings. (Cal. Rules of Court, rules 8.147(b), 8.155(a).) The appeal is dismissed without prejudice. All parties are to bear their own costs incurred on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS TURNER, P. J. We concur: KRIEGLER, J. KUMAR, J.* * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 4	{ "pile_set_name": "FreeLaw" }
457 B.R. 684 (2011) Sidney R. MILLER, Appellant/Debtor v. Marilyn O. MARSHALL, Appellee/Trustee. No. 10 C 5915. United States District Court, N.D. Illinois, Eastern Division. May 24, 2011. 686 Sidney R. Miller, Chicago, IL, pro se. U.S. Bankruptcy Court, Clerk, Clerk, United States Trustee, Office of the United States Trustee, Pamela S. Hollis, United States Bankruptcy Court, Northern District of Illinois, Chicago, IL, for Appellee/Trustee. MEMORANDUM OPINION AND ORDER RONALD A. GUZMAN, District Judge. Before the Court is pro se debtor/appellant Sidney R. Miller's appeal, pursuant to 28 U.S.C. § 158(a), of the bankruptcy court's order dismissing his case for failure to file certain documents as required by 11 U.S.C. ("the Bankruptcy Code") § 521(i). For the reasons set forth below, the Court reverses the order and remands the case to the bankruptcy court. Background On June 3, 2010, Miller filed a Chapter 13 petition in the United States Bankruptcy Court for the Northern District of Illinois, case number 10-BK-25290. Pursuant to § 521(i) of the Bankruptcy Code, Miller was required to file certain documents with the bankruptcy court within forty-five days of that filing or on or before July 19, 2010. On July 19, 2010, the trustee orally moved to dismiss the case because, among other things, Miller failed to file the required documents under § 521. (See Bankr. Ct. Tr., Case No. 10-BK-25290, 1-3, July 19, 2010.) Miller objected, explaining to the bankruptcy court that he had certain documents with him that were ready to be filed, upon which the bankruptcy court told Miller to let the trustee view the documents. (Id. at 4-5.) After viewing the documents, the trustee told the bankruptcy court that Miller still did not have all the required documents, and that today "[was] the 46th day," after Miller had filed his petition. (See id. at 8.) Upon which the following conversation ensued: Miller: With all due respect, the reason that I can't produce tax returns [which Miller alleges he needed to properly complete one or more of the § 521 required documents] is because they are not in my possession. They're in the possession of the receiver in the state court when my currency exchanges were placed in receivership seven years ago. I spoke with the IRS [Internal Revenue Service] on April 26th. The IRS said that the tax returns were improperly filed under my own FEIN's [sic] [Federal Employer Identification Number]. The receiver never Court: Stop, stop. You're rambling on about things that have nothing to do with what we've just raised. One, you 687 have to file a plan. You have to file it on time. You didn't do that. Two, once you file the plan, you have to start making plan payments. You're not doing that, okay? .... [Y]ou open up your entire world when you filed bankruptcy. So you don't get to pick and choose what you do. If you want the benefit of the proceedings, you have to follow all the rules, all right? So you have to amend, you have to get your schedules on file, you need to make your payments, you need to have a plan. I'm continuing this for one week. If you do not have all those documents on file, and I'm not necessarily giving you leave to file them late, you haven't asked for that, if you don't have everything on file, your case will be dismissed next week. .... Miller: And when you refer to those documents, you're referring [to] everything the trustee just Court: I'm referring to everything that the rules require, many of which he [the trustee] mentioned all right? To [sic] have to follow the rules just like everybody else, okay? Miller: I always attempt to, Your Honor. Court: Well, you know, attempt to is not good enough. If you want the benefit of the proceeding, you have to do what it requires. So I'm giving you one week and a last chance to get all those documents on file. (Id. at 9-11.) A week later at a status hearing on July 26, 2010, Miller allegedly filed all the required documents: Miller: The schedules that Your Honor extended one week have been filed. I have the trustee's copy in my hand. They're all file stamped. Would you like me to tender this to the trustee? Court: Yeah, I assume they're not going to show up on the docket. Were they filed this morning? Miller: That is correct, Your Honor. Court: All right. Okay. So because they were filed this morning, we won't be able to get a chance to take a look at them, so we need to continue it. Trustee: Well, that's entirely up to Your Honor, obviously. .... Court: I said 7/26 to get documents on file. So if you want to be very technical about my order, you could have probably done it right up to the moment before the hearing. Trustee: These documents, having been filed today, are beyond the 45 days of Section 521(i). The case was automatically dismissed Tuesday. .... Court: The case is dismissed. Trustee: And I've prepared an order, if the court wanted to Miller: Your Honor gave Trustee: dismissing the case and finding that the documents were not filed within the 45 days required under 521(i). Court: You understand that provision, don't you? Are you aware of that? Miller: I was aware, but your Honor issued an order at the bench last Court: No, wait a minute, wait a minute. I did not issue any order. There's no order on the docket giving you an extension of time to file the documents. I just gave you a continuance to get done what you were supposed to get done.... So I said you need to have these problems resolved by today, you need to get things on file and have them resolved by today. But if you choose to file them after the 45 days, I don't have any ability to do 688 anything with it. The Code says the case is automatically dismissed. Trustee: Right. And there was no motion requesting an extension of time to do so. Court: And there is no order giving you an extension of time beyond the 45 days. All I did was what I always do here, if there are problems, I say I'll give you a continuance, instead of dismissing your case today, I'll give you a continuance to fix the problems. That's not the same as overriding the 45-day rule. (See Bankr. Ct. Tr., Case No. 10-BK-25290, at 1-4, July 26, 2010.) The court entered an order on July 26, 2010 stating that the case was dismissed for failure to file required documents under § 521(i) nunc pro tunc July 20, 2010, the day after the bankruptcy court granted the continuance.[1] Discussion I. Legal Standard A district court reviews a bankruptcy court's legal conclusions de novo and findings of fact for clear error. Tidwell v. Smith, 582 F.3d 767, 777 (7th Cir. 2009); see also United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ("A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."). But where a decision is left to the discretion of the bankruptcy court such decision is reviewed for an abuse of discretion. Wiese v. Cmty. Bank of Cent. Wis., 552 F.3d 584, 588 (7th Cir. 2009). Under this standard, the relevant inquiry is whether any reasonable person could agree with the bankruptcy court. In re Morris, 223 F.3d 548, 554 (7th Cir. 2000); see also Corp. Assets, Inc. v. Paloian, 368 F.3d 761, 767 (7th Cir. 2004) ("[A] court abuses its discretion when its decision is premised on an incorrect legal principle or a clearly erroneous factual finding, or when the record contains no evidence on which the court rationally could have relied."). II. Analysis 1. Mootness First, the trustee argues that Miller's appeal is moot because he has a pending Chapter 13 case in the bankruptcy court. (Appellee's Br. at 7.) Cases are moot when there is no longer a live case or controversy. See, e.g., Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528 (7th Cir. 2001). "If a case becomes moot while on appeal, this [C]ourt loses its jurisdiction to decide the merits of the action." Bd. of Educ. of Oak Park & 689 River Forest High Sch. Dist. 200 v. Nathan R., 199 F.3d 377, 380-81 (7th Cir. 2000). Although Miller may have had a pending case when the trustee filed her brief, it appears that the case has since been resolved. Although there	{ "pile_set_name": "FreeLaw" }
546 S.W.2d 798 (1977) Georgia H. CORDER, Appellant-Respondent, v. Nathan CORDER, Respondent-Appellant. Nos. KCD 27665, KCD 27956. Missouri Court of Appeals, Kansas City District. January 31, 1977. 800 Charlotte P. Thayer, Thayer, Gum, Ernst Y. Wickert, Grandview, for respondent-appellant. Robert W. Spangler, Robert B. Reeser, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for appellant-respondent. Before SHANGLER, P. J., and SWOFFORD and SOMERVILLE, JJ. SOMERVILLE, Judge. This is a dissolution of marriage proceeding involving cross-appeals. Neither party questions the dissolution of the marriage; however, the opposite is true with respect to all other provisions of the decree. At the very threshold of appellate review this court is faced with a basic question of decisive significance. Does jurisdiction lie in this court to entertain the cross-appeals? Although neither party has questioned this court's jurisdiction, it may not be conferred by waiver, silence, acquiescence, or consent, and it is incumbent upon this court to sua sponte inquire into and determine whether it has jurisdiction. Kansas City Power & Light Co. v. Kansas City, 426 S.W.2d 105, 107 (Mo.1968); L. F. H. v. R. L. H., 543 S.W.2d 520, handed down October 5, 1976, by the Missouri Court of Appeals, St. Louis District; and Taney County v. Addington, 296 S.W.2d 129, 129[1] (Mo.App.1956). The vexing question of whether jurisdiction lies in this court to entertain the cross-appeals emerges as follows: The family home, "Lot 91, Silver Lake, a subdivision in Cass County, Missouri", was acquired subsequent to the marriage but prior to the effective date of the Dissolution of Marriage Act (§§ 452.300, et seq., RSMo Supp. 1973), and title thereto was vested in the wife and husband as tenants by the entirety. All furnishings and furniture therein, and all other personal property not otherwise specifically mentioned, was apparently acquired subsequent to the marriage but prior to the effective date of the Dissolution of Marriage Act and treated as owned by the wife and husband as tenants by the entirety. The decree below contained, inter alia, the following provision: "That the following described real estate, to-wit: Lot 91, Silver Lake, a subdivision in Cass County, Missouri, together with all furnishings and furniture located therein and all other personal property are hereby declared to be marital property; that Petitioner and Respondent shall each own an undivided one half (½) interest therein as tenants in common." A colloquy between the trial court and counsel occurred prior to entry of the decree with respect to the real property, at which time the trial court stated: "I don't care what they do with it. They each have a half interest in it. I'm going to dissolve the marriage, leave them right where the 801 real estate law put them which is the way it should be." Notwithstanding the fact that the wife does not question this court's jurisdiction to entertain the cross-appeals, she vigorously contends, among other points relied upon, that the trial court's purported division of "marital property" lacked "finality" and did not constitute a "just" division as contemplated in and commanded by Section 452.330, RSMo Supp.1973. It is appropriate at this point to quote Section 452.330, supra, in full in order to put the jurisdictional question in proper perspective: "1. In a proceeding for nonretroactive invalidity, dissolution of the marriage or legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including: (1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (2) The value of the property set apart to each spouse: (3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and (4) The conduct of the parties during the marriage. "2. For purposes of sections 452.300 to 452.415 only, `marital property' means all property acquired by either spouse subsequent to the marriage except: (1) Property acquired by gift, bequest, devise or descent; (2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent; (3) Property acquired by a spouse after a decree of legal separation; (4) Property excluded by valid agreement of the parties; and (5) The increase in value of property acquired prior to the marriage. "3. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2. "4. The court's order as it affects distribution of marital property shall be a final order not subject to modification. "5. A certified copy of any decree of court affecting title to real estate shall forthwith be filed for record in the office of the recorder of deeds of the county and state in which the real estate is situate by the clerk of the court in which the decree was made, and the filing fees shall be taxed as costs in the cause." (Emphasis added.) The husband counters the wife's assertions that the purported division of "marital property" lacked "finality" and did not constitute a "just" division as contemplated in and commanded by Section 452.330, supra, with the following argument. Under "prior law, upon divorce, any property held in tenancy by the entirety, is converted to a tenancy in common with an undivided ½ interest in each party." He cites Allan v. Allan, 364 S.W.2d 578, 582 (Mo.1963), and Section 442.450, RSMo 1969, to support this statement with respect to the real property. Although not cited by the husband, Nye v. James, 373 S.W.2d 655, 659 (Mo.App.1963), supports the statement with respect to the personal property. As a capstone, the husband argues that any division of "marital property" under Section 452.330, supra, giving *802 either spouse any interest other or greater than an undivided one-half (½) interest as tenants in common in property which was acquired as tenants by the entirety prior to the effective date of Section 452.330, supra, "would be unconstitutional in that it would operate to divest vested rights, impair obligation of contract, and deprive persons of property without due process of law." In support thereof the husband cites various provisions of the state and federal constitutions, namely: Missouri Constitution, Art. I, §§ 10 (due process) and 13 (prohibiting the enactment of laws "impairing the obligation of contracts" or which are "retrospective" in their "operation"); and U.S. Constitution, Art. I, § 10 (prohibiting any state from passing any law "impairing the Obligation of Contracts") and Amend. XIV, § 1 (due process). At this juncture it is important to take cognizance of the true nature and thrust of the husband's constitutional argument. He does not contend that Section 452.330, supra, is unconstitutional. He does contend however that construing Section 452.330, supra, as being applicable to property acquired as tenants by the entirety prior to its effective date would be unconstitutional. See McManus v. Park, 287 Mo. 109, 229 S.W. 211 (1921). As the controversial provision of the decree purported to do nothing more than declare that the spouses each owned an undivided one-half (½) interest in the "marital property" as tenants in common, as would have occurred by operation of law prior to the effective date of Section 452.330, supra, there was no division of "marital property" (as hereafter discussed) as contemplated in and commanded by Section 452.330, supra, unless the property, by virtue of the date it was acquired, was exempt from the control and application of Section 452.330, supra, because of the constitutional grounds raised by the husband. If a division of the "marital property" as required by and envisioned in Section 452.330, supra, was not precluded on constitutional grounds, then the trial court did not exhaust its jurisdiction and the decree was not a final judgment or order and was not appealable. L. F. H. v. R. L. H., supra; Pendleton v. Pendleton, 532 S.W.2d 905, 906 (Mo.App.1976); Section 512.020, RSMo 1969; and Rules 81.01 and 81.	{ "pile_set_name": "FreeLaw" }
535 U.S. 1008 THOMASv.UNITED STATES. No. 01-8952. Supreme Court of the United States. April 15, 2002. 1 C. A. 5th Cir. Certiorari denied. Reported below: 31 Fed. Appx. 154.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4473 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ANTOINE JEFFREY POPE, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:05-cr- 00532-AMD) Submitted: November 30, 2006 Decided: July 5, 2007 Before WILLIAMS, Chief Judge, and GREGORY and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Flynn M. Owens, LAW OFFICES OF RUBIN & OWENS, P.A., Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Stephen M. Schenning, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following the denial of his motion to suppress a firearm discovered during the course of a traffic stop, Antoine Jeffrey Pope pled guilty to possession of a firearm by a convicted felon. He now appeals his conviction, arguing that the district court erred when it denied the suppression motion. We affirm. I At a hearing on the suppression motion, Sergeant David Long, a patrol supervisor with the Hagerstown City Police Department, testified that he was on duty in the early morning of August 31, 2005. He was advised that a residential burglary was in progress approximately one mile from where he was on patrol. The perpetrator was identified as a black male wearing dark clothing. When Long was advised of the burglary, the victim was on the phone with the 911 operator. Long testified that as he drove towards the scene of the burglary he encountered no vehicles until he spotted a sports utility vehicle (SUV) traveling with its headlights turned off. After Long saw the car, the headlights were illuminated and turned off several times. Long observed that the driver of the SUV was a black male wearing dark clothing. Long initiated a traffic stop. Pope, the driver, produced a driver’s license but was unable to produce the rental agreement for the car. Long observed that both Pope and his passenger appeared quite nervous. Two - 2 - backup officers arrived within thirty seconds of the traffic stop. When one of the backup officers began to speak to the passenger, the passenger appeared to reach for something. The backup officer opened the passenger door, grabbed the passenger’s arm, and asked him to exit the vehicle. When he did, a gun fell to the ground. The other backup officer then asked Pope if he had any weapons. Pope replied that he was sitting on a handgun. Officers took custody of that gun, which Pope subsequently moved to suppress. The district court denied the motion. The court found that, given the totality of the circumstances, a reasonable officer would have conducted the traffic stop based on a reasonable suspicion that the SUV was related to the burglary that had occurred nearby only minutes earlier. II On appeal, Pope argues that the district court erred when it found that Long had a reasonable, articulable basis to effect the traffic stop of Pope’s SUV. When evaluating the denial of a motion to suppress, we review legal conclusions de novo and factual findings for clear error. Evidence is viewed in the light most favorable to the prevailing party below. United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). The Fourth Amendment requires that a brief, investigatory stop of an individual be supported by reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. - 3 - 1, 30 (1968). The reasonable suspicion standard “is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). In deciding whether an officer had the requisite reasonable suspicion to conduct an investigatory traffic stop, courts apply an objective test rather than examining the subjective beliefs of the investigating officer. Id. “Reasonable suspicion standard is a commonsensical proposition. Courts are not remiss in crediting the practical experience of officers who observe on a daily basis what transpires on the street.” United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993). The Supreme Court has recognized that individual factors consistent with innocent travel can, when taken together, give rise to reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 9 (1989). We conclude that an officer in Sgt. Long’s position would have had an objectively reasonable suspicion that the SUV that Pope was driving was connected with the recent burglary—i.e., that criminal activity was afoot. The burglary had occurred only minutes earlier; indeed, when Long received the call, the victim was still on the telephone with the 911 operator. The offense occurred within one mile of Long’s location in a residential area where there was virtually no traffic in the early morning hours. The only car that Long saw on the road was the SUV, and that - 4 - vehicle was being operated in a suspicious manner—first without headlights, and then with its headlights being turned on and off. Finally, Pope, like the burglar, was a black man wearing dark clothing. We conclude that these factors, taken together, give rise to reasonable suspicion sufficient to justify a traffic stop under Terry. III We therefore affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 5 -	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-30345 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANKLIN DAVID MIRANDA, also known as Frankie, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CR-264-2-B -------------------- November 8, 2001 Before DAVIS, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* Franklin David Miranda challenges the sentence he received following his guilty-plea conviction for conspiracy to distribute heroin, in violation of 21 U.S.C. § 846. He argues that the district court erred by sentencing him to a five-year supervised- release term after having admonished him at rearraignment that he faced no more than four years’ supervised release. The Government concedes the error and argues that the case should be remanded for resentencing. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-30345 -2- Both Miranda and the Government are incorrect. The claim is not one of sentencing error but of alleged error under Fed. R. Crim. Proc. 11. Although Miranda states that he relied on the misinformation regarding the four-year maximum term of supervised release in “weighing the ramifications of pleading guilty,” at no time did he attempt to withdraw his plea or assert that it was involuntary or made without adequate knowledge. Instead, Miranda appears to assert that a Rule 11 error vitiates a subsequently imposed sentence and requires automatic remand for resentencing. There is no authority for this proposition. The district court erred in advising Miranda regarding the maximum term of supervised release he would receive, but the error does not affect the sentence imposed, only the validity of the plea itself. See, e.g., Rule 11(c) and (h). Because Miranda has not argued any error in connection with his plea but requests only resentencing, he seeks relief which is not available for a Rule 11 violation, and his claim fails. Miranda also renews his argument that he was entitled to a sentencing reduction under U.S.S.G. § 3B1.2 for playing a minimal or minor role in the offense because he was only a courier and because he was less culpable than his codefendant. He does not renew the argument that the adjustment was warranted based on the purity level of the heroin involved, and that claim is therefore waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)(arguments not briefed on appeal are deemed abandoned). The district court did not clearly err in refusing the No. 01-30345 -3- § 3B1.2 adjustment. See United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994). Even if Miranda had served only as a courier, that alone would not entitle him to the reduction. See United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989). However, contrary to his assertions, Miranda did more than serve as a mere courier; the PSR found that he contacted the confidential informant (“CI”) to arrange payment for the drugs and was arrested with Alvarez at the site where payment was made. The district court concluded that, although his codefendant may have been more culpable than Miranda, the preponderance of the evidence showed that Miranda was aware of the full scope of the drug-trafficking activities and that Miranda was not substantially less culpable than his codefendant. See § 3B1.2, comment. (n.1 and 3). Miranda’s conclusional assertions that he only handled money and that he had never contacted the CI are not supported by any record evidence, nor has he presented any evidence to contradict the findings of the PSR. Miranda has neither alleged nor proved that he was not aware of the scope of the conspiracy or that he played a substantially less meaningful role in the offense than did his codefendant, and he has thus failed to sustain his burden of proving his mitigating role in the offense. See United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995). By his third issue, Miranda renews his challenge to the calculation of the amount of heroin attributed to him for sentencing purposes. He argues that the preponderance of the evidence did not demonstrate that there was heroin, as opposed to No. 01-30345 -4- possibly only Benzocaine and Procaine, in each of the three baggies seized from the CI. The PSR found that each baggie seized from the CI contained heroin, as was confirmed by Agent Gill, which finding was adopted by the district court. Miranda thus has the burden of showing that the information in the PSR was materially untrue. United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992); see § 6A1.3. Miranda has not argued that the information in the PSR was materially untrue. Instead, he argues that Gill’s testimony is “suspect;” however, he provides no factual support for this speculative and conclusional allegation, and it is insufficient to make the required showing. His claim thus fails. Miranda has not demonstrated any error in the district court’s judgment. Accordingly, the judgment is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NAVAJO NATION, No. 13-15710 Plaintiff-Appellant, D.C. No. v. 3:11-cv-08205- PGR U.S. DEPARTMENT OF THE INTERIOR; KENNETH LEE SALAZAR, in his official capacity as Secretary of the OPINION USDOI; NATIONAL PARK SERVICE; JONATHAN B. JARVIS, in his official capacity as Director of the National Park Service; TOM O. CLARK, in his official capacity as Park Superintendent, Canyon de Chelly National Monument, Defendants-Appellees. Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, Senior District Judge, Presiding Argued and Submitted June 10, 2015—San Francisco, California Filed April 6, 2016 Before: Mary M. Schroeder, Sandra S. Ikuta, and Morgan Christen, Circuit Judges. 2 NAVAJO NATION V. USDOI Opinion by Judge Christen; Dissent by Judge Ikuta SUMMARY* Native American Graves Protection and Repatriation Act The panel reversed the district court’s dismissal of the Navajo Nation’s suit seeking an injunction ending the National Park Service’s inventory, pursuant to the Native American Graves Protection and Repatriation Act (“NAGPRA”), of human remains and funerary objects removed from the Canyon de Chelly National Monument on the Navajo Reservation; and the immediate return of the objects taken from the reservation. The panel held that the district court had jurisdiction to consider the Navajo Nation’s claims because the Park Service’s decision to inventory the remains and objects was a final agency action within the meaning of the Administrative Procedure Act. The panel also held that by deciding to undertake NAGPRA’s inventory process, the Park Service conclusively decided that it, and not the Navajo Nation, had the present right to “possession and control” of the remains and objects. 25 U.S.C. § 3003(a). The panel remanded for further proceedings. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. NAVAJO NATION V. USDOI 3 Judge Ikuta dissented because she would hold that because there was no final agency action reviewable under § 704 of the Administrative Procedure Act, the United States has not waived its sovereign immunity and the court lacks jurisdiction to hear the appeal. COUNSEL Paul Spruhan (argued), Assistant Attorney General; Harrison Tsosie, Attorney General, Navajo Nation Department of Justice, Window Rock, Arizona; Paul E. Frye and William Gregory Kelly, Frye Law Firm, Albuquerque, New Mexico, for Plaintiff-Appellant. Mary Gabrielle Sprague (argued); Robert G. Deher, Acting Assistant Attorney General; David C. Shilton; Andrew C. Mergen, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Appellees. 4 NAVAJO NATION V. USDOI OPINION CHRISTEN, Circuit Judge: The Navajo Nation appeals the district court’s dismissal of its suit seeking immediate return of human remains and associated funerary objects taken from its reservation. The Nation describes these remains and objects as “among the most sacred of [its] property” due to its deep spiritual belief that upon death humans should be placed in the earth and left there undisturbed. Between 1931 and 1990, the National Park Service removed 303 sets of human remains and associated funerary objects from Canyon de Chelly National Monument, a sacred site on the Navajo Reservation. In the mid-1990s, the Park Service decided to inventory the remains and objects pursuant to the Native American Graves Protection and Repatriation Act (NAGPRA) with the ultimate goal of repatriating the remains and objects to culturally-affiliated tribes. The Navajo Nation sued seeking, inter alia, an injunction ending the inventory process and returning the remains and objects. The Navajo Nation argued that the Park Service’s decision to inventory the remains and objects instead of returning them violated Navajo tribal treaties, various statutes, and the Fifth Amendment to the United States Constitution. The district court dismissed the suit as barred by sovereign immunity, reasoning that the Park Service had not yet taken any final agency action as to its disposition of the remains and objects. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the district court’s judgment. We hold that the district court had jurisdiction to consider the Navajo Nation’s claims because the Park Service’s decision to inventory the NAVAJO NATION V. USDOI 5 remains and objects was a final agency action within the meaning of the Administrative Procedure Act. By deciding to undertake NAGPRA’s inventory process, the Park Service conclusively decided that it, and not the Navajo Nation, has the present right to “possession and control” of the remains and objects. 25 U.S.C. § 3003(a). We reverse the district court’s order and remand for proceedings consistent with this decision. BACKGROUND Canyon de Chelly is a spectacularly beautiful geological site consisting of over twenty miles of red sandstone walls rising hundreds of feet above the ground. See S. Rep. No. 71- 1395, at 2 (1931); Fig. 1. Figure 11 1 Places Reflecting America’s Diverse Cultures, Nat’l Park Serv., http://www.nps.gov/nr/travel/cultural_diversity/Canyon_de_Chelly_ National_Monument.html (last visited Mar. 8, 2016). 6 NAVAJO NATION V. USDOI Humans have lived in the canyon’s caves for thousands of years.2 Hopi and Pueblo Indians were the canyon’s primary occupants from roughly 750 A.D. until the 1600s.3 The Navajo began living in the canyon in significant numbers around the late 1600s. Id. Navajo live in the canyon to this day and consider Canyon de Chelly sacred ground.4 Navajo creation stories include events in the canyon, and Navajo lore maintains that key spiritual figures still reside there. See Kelli Carmean, Spider Woman Walks This Land: Traditional Cultural Properties and the Navajo Nation x, xvii–xx (2002). In 1849, the United States and the Navajo Nation signed a treaty acknowledging that the Navajo Nation was “under the exclusive jurisdiction and protection of the government of the said United States.” Treaty Between the United States of America and the Navajo Tribe of Indians, U.S.-Navajo Nation, September 9, 1849, 9 Stat. 974, 974. But in 1864 the federal government forcefully and violently removed the Navajo from their lands, including Canyon de Chelly, and relocated them to Fort Sumner, 300 miles away.5 Navajo villages and food stores were destroyed during the forced move and hundreds of Navajo died as a result of this forced 2 See Canyon de Chelly - History and Culture, Nat’l Park Serv., http://www.nps.gov/cach/learn/historyculture/index.htm (last visited Mar. 8, 2016). 3 Nat’l Park Serv., supra note 1. 4 David M. Brugge & Raymond Wilson, Administrative History: Canyon de Chelly National Monument Arizona, U.S. Dep’t of the Interior Nat’l Park Serv. (Jan. 1976), http://www.nps.gov/cach/learn/historyculture/up load/CACH_adhi.pdf 5 Nat’l Park Serv., supra note 1. NAVAJO NATION V. USDOI 7 relocation. Kristen A. Carpenter et al., In Defense of Property, 118 Yale L.J. 1022, 1063 (2009). After four years of exile, the federal government allowed the Navajo to return to Canyon de Chelly, id., and in 1868 the United States and the Navajo Nation signed a second treaty ceasing hostilities and establishing, among other things, the boundaries of the Navajo Reservation, which include all of Canyon de Chelly. Treaty Between the United States of America and the Navajo Tribe of Indians, U.S.-Navajo Nation, June 1, 1868, 15 Stat. 667, 668. Under this treaty	{ "pile_set_name": "FreeLaw" }
895 F.2d 1468 283 U.S.App.D.C. 46 Unpublished DispositionNOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.KENTUCKY WEST VIRGINIA GAS COMPANY, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent,Columbia Gas Transmission Corporation, Intervenor. No. 88-1769. United States Court of Appeals, District of Columbia Circuit. Dec. 29, 1989. Before WALD, Chief Judge, and HARRY T. EDWARDS, and D.H. GINSBURG, Circuit Judges. JUDGMENT PER CURIAM. 1 Kentucky West petitions to review an order of the Federal Energy Regulatory Commission retroactively eliminating a minimum bill provision from the petitioner's rate filing under Sec. 4 of the Natural Gas Act. 2 The petitioner has failed to show that the Commission acted arbitrarily or capriciously in eliminating the minimum bill from its proposed rate. The petitioner is not entitled to a minimum bill as a means of guaranteeing recovery of its gathering costs, see Opinion 260-A, Transcontinental Pipe Line Corp., 40 F.E.R.C. p 61,188 (1987), (presumption that a minimum bill is anticompetitive). It has shown neither that it has incurred any take or pay liability nor that the minimum bill is the only reasonable means of avoiding exposure to such liability. Moreover, since the petitioner is now an open-access transporter under Order No. 436, its claim that a loss of business from partial requirements customers, resulting from elimination of the minimum bill, will lead to a shifting of fixed costs to full requirements customers, is speculative. 3 Because the minimum bill accompanied the petitioner's proposal to switch from the Atlantic Seaboard ratemaking methodology to the modified fixed variable methodology, however, the Commission's interim order requiring the petitioner to collect its rates under the MFV methodology without benefit of the minimum bill amounted to the imposition of a new rate for that interim period. 4 Upon review of the parties' presentations at oral argument and in their briefs, we are unable to discern the path of reasoning by which the Commission concluded that it is authorized to impose such a rate in a Sec. 4 proceeding without having made the requisite findings under Sec. 5 of the NGA. In particular, neither the Commission's order nor its arguments on appeal reveal whether, as the intervenor Columbia suggests, it invokes Sec. 16 of the NGA as authority for imposing a new rate in the interim before completion of the Sec. 5 proceeding. See FPC v. Tennessee Gas Transmission Co, 371 U.S. 145 (1962). We therefore remand this case to the Commission for further explanation of the authority under which it has proceeded in requiring Kentucky West to collect its rates under the MFV methodology in the interim before a lawful new rate is imposed. 5 At the respondent's request, in the wake of East Tennessee Natural Gas Co. v. FERC, 863 F.2d 932 (D.C.Cir.1988), we also remand to the Commission the question of the date as of which its decision eliminating the minimum bill from Kentucky West's rate schedule is to be effective. It is therefore 6 ORDERED and ADJUDGED that the case be remanded to the Federal Energy Regulatory Commission for further proceedings consistent with this order.	{ "pile_set_name": "FreeLaw" }
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE IN RE: MS2009-000010 No. 1 CA-MH 19-0011 SP FILED 12-10-2019 Appeal from the Superior Court in Maricopa County No. MS2009-000010 The Honorable Jay M. Polk, Judge AFFIRMED COUNSEL Maricopa County Legal Defender’s Office, Phoenix By Anne H. Phillips Counsel for Appellant Arizona Attorney General’s Office, Phoenix By Aubrey Joy Corcoran Counsel for Appellee State of Arizona MEMORANDUM DECISION Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined. IN RE: MS2009-000010 Decision of the Court J O N E S, Judge: ¶1 Appellant challenges the superior court’s order denying his petition for discharge from the Arizona Community Protection and Treatment Center (ACPTC) at the Arizona State Hospital (ASH). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In 2009, the superior court determined Appellant was a sexually violent person (SVP) and ordered him committed to ACPTC.1 See Ariz. Rev. Stat. (A.R.S.) §§ 36-3701(7)2 (defining SVP as a person who “[h]as ever been convicted of . . . a sexually violent offense . . . [and] [h]as a mental disorder that makes the person likely to engage in acts of sexual violence”), -3707(B) (authorizing the superior court to commit an SVP to a licensed facility supervised by ASH). In 2016, Appellant made progress toward his treatment goals and was transferred to a less restrictive program within ACPTC. See A.R.S. § 36-3710 (directing conditional release to a less restrictive alternative if it is in the SVP’s best interest and the public is adequately protected). Two years later, Appellant petitioned for absolute discharge. See A.R.S. § 36-3714(A) (authorizing discharge from treatment if the SVP’s “mental disorder has so changed that the person is not likely to engage in acts of sexual violence if discharged”). ¶3 At the December 2018 hearing, Sarah Gallimore, Psy.D., testified regarding a December 2017 report she had authored recommending Appellant remain at ACPTC. Dr. Gallimore is an Arizona- licensed clinical psychologist whose practice focuses on persons who have committed sexually violent offenses. She is familiar with Arizona’s SVP statutes and sex-offender treatment programs and has completed approximately sixty-five SVP evaluations. When evaluating the needs of an SVP, Dr. Gallimore interviews the person, reviews legal and treatment records and past diagnoses, and completes various risk-assessment tools to determine whether the person is making progress in treatment and whether the person continues to pose a danger to the public. After reviewing all the information, Dr. Gallimore attributes diagnoses, determines the person’s 1 We view the facts in the light most favorable to upholding the superior court’s ruling. In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14 (App. 2009) (citing In re MH 94-00592, 182 Ariz. 440, 443 (App. 1995)). 2 Absent material changes from the relevant date, we cite the current version of rules and statutes. 2 IN RE: MS2009-000010 Decision of the Court level of risk, and makes a recommendation about the need for continued treatment. ¶4 Based upon Appellant’s self-reports, a review of his history, and her prior experience evaluating him for a 2015 report, Dr. Gallimore testified that Appellant was diagnosed with antisocial personality disorder and exhibitionist disorder immediately before he was found to be an SVP and committed to ACPTC in 2009. She then determined Appellant continued to experience these disorders, and others, in 2017. The antisocial personality disorder, characterized by aggressiveness and a lack of empathy, was of particular concern, which, when combined with more recently identified narcissistic personality and paraphilic disorders,3 left Appellant “at high risk for committing another sexually violent offense.” Dr. Gallimore’s evaluation was consistent with three separate actuarial risk assessment tools that employ different combinations of static, dynamic, objective, and subjective factors — the Static-99R, the Static-2002R, and the SVR-20 — each of which placed Appellant at a “well above average risk” of committing a new sexual offense within five years with a rate of recidivism several times greater than the average individual convicted of a sexually motivated offense. Accordingly, Dr. Gallimore opined that absolute discharge would not be in Appellant’s best interest or adequately protect the community. ¶5 Brian Abbott, Ph.D., testified on Appellant’s behalf, criticizing Dr. Gallimore’s use, administration, and interpretation of the SVR-20. He also pointed out that the version of the SVR-20 Dr. Gallimore administered to Appellant was outdated, having been replaced three months before her evaluation of Appellant. Dr. Abbott did not personally evaluate Appellant but testified, based upon his review of Dr. Gallimore’s report, that the State had failed to prove that Appellant’s continued commitment at ACPTC was warranted. Dr. Abbott nonetheless agreed that current evidence of impulsivity and lack of remorse could demonstrate a person suffered from antisocial personality disorder, and that these behaviors, in conjunction with paraphilic conditions, could cause someone to have serious difficulty controlling sexually violent behavior. 3 Paraphilia is the “expression of the sexual instinct in practices which are socially prohibited or unacceptable, or biologically undesirable.” Dorland’s Illustrated Medical Dictionary 1135 (25th ed. 1974). 3 IN RE: MS2009-000010 Decision of the Court ¶6 After taking the matter under advisement, the superior court denied the petition for discharge. Appellant timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(10)(a). DISCUSSION ¶7 At a hearing on an SVP’s petition for discharge from treatment, “[t]he attorney for the state has the burden of proving beyond a reasonable doubt that the petitioner’s mental disorder has not changed and that the petitioner remains a danger to others and is likely to engage in acts of sexual violence if discharged.” A.R.S. §§ 36-3709(A), (C), -3714(A). Here, the superior court found “beyond a reasonable doubt that: (a) [Appellant]’s mental disorder has not changed; (b) [Appellant] remains a danger to others; and (c) [Appellant] is likely[] to engage in acts of sexual violence if he is unconditionally discharged.” Appellant argues the evidence is insufficient to sustain these findings in support of continued commitment at ACPTC. We disagree. ¶8 We will not set aside the findings supporting an order for involuntary civil commitment “unless they are clearly erroneous.” MH 2008-001188, 221 Ariz. at 179, ¶ 14 (citing MH 94-00592, 182 Ariz. at 443). “A finding of fact is not clearly erroneous if substantial evidence supports it, even if substantial conflicting evidence exists.” Ramsey v. Ariz. Registrar of Contractors, 241 Ariz. 102, 109, ¶ 22 (App. 2016) (quoting Kocher v. Dep’t of Revenue of Ariz., 206 Ariz. 480, 482, ¶ 9 (App. 2003)). Substantial evidence is such proof that a reasonable person could accept as adequate and sufficient to support the facts beyond a reasonable doubt. See State v. Coulter, 236 Ariz. 270, 275, ¶ 12 (App. 2014) (quoting State v. Gunches, 225 Ariz. 22, 25, ¶ 14 (2010)). ¶9 Appellant argues perceived deficiencies in Dr. Gallimore’s analysis render her conclusions invalid. He does not challenge her general competency to testify. See generally A.R.S. § 36-3701(2) (defining “competent professional” for purposes of Arizona’s SVP statutes); Ariz. R. Evid. 702 (governing the general admissibility of expert testimony). Therefore, her testimony “should be tested by the adversary process — competing expert testimony and active cross-examination — rather than	{ "pile_set_name": "FreeLaw" }
85 F.3d 628 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.John DOE, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee. No. 95-5567. United States Court of Appeals, Sixth Circuit. May 10, 1996. Before: JONES, BOGGS, and BATCHELDER, Circuit Judges. PER CURIAM. 1 Doe pled guilty to engaging in a continuing criminal enterprise to distribute narcotics, in violation of 21 U.S.C. § 848. On July 18, 1990, the district court sentenced him to twenty years in prison, the mandatory minimum under that newly amended statute for a person with no prior narcotics conviction. Doe did not appeal. On August 12, 1991, he filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Doe alleges that the government breached the plea agreement, that the plea agreement was coerced by improper threats to prosecute his father, and that his lawyer was constitutionally ineffective. The district court denied Doe's motion. We affirm. 2 * The government charged Doe with ninety-three counts of various crimes, as part of a multi-defendant indictment on August 16, 1989. Doe's lawyer, Trant, also represented six co-defendants. At arraignment on September 7, 1989, the magistrate judge warned Doe about the hazards of joint representation. The magistrate judge itemized potential conflicts and concluded: 3 [I]f you were convicted and if the case went up on appeal and at some point in time you decided that, hey, this was a mistake, I shouldn't have been represented by this one law firm, this one attorney, the court of appeals may say, yes, that probably was a mistake, but you waived any objection; because, on the morning of September the 7th, 1989, Judge Murrian held a hearing and you stood before him and said that you voluntarily waive or give up your right to have separate counsel and you agree to have joint or dual representation. 4 Doe told the court that he understood his rights, but nevertheless wished to share counsel with his codefendants. 5 Trant met with Doe in early February 1990, to discuss a plea. In a hearing before the magistrate judge, Doe testified that Trant pressured him during this meeting to plead guilty to the continuing criminal enterprise ("CCE") charge. Doe testified that Trant told him that the government would prosecute his elderly father unless Doe pled guilty.1 Except for Doe's testimony, there is no other evidence in the record that the government threatened to prosecute his father. However, the United States Attorney did admit to having conversations "regarding" Doe's father during preliminary plea negotiations. The magistrate judge found that the government told Trant, and Trant told Doe, that the government might investigate the father's role. At least seven different witnesses heard Trant say, shortly after his meetings with Doe and the government, that Doe had decided to plead guilty to protect his father. Report and Recommendation at 11-14. 6 Doe pled guilty to the CCE count on February 5, 1990. At that time, he stated to the court: 7 THE COURT: Has any person, including any officer or agent of the government, put any pressure on you mentally or physically to force you to plead guilty? 8 [DEFENDANT]: No, sir. 9 THE COURT: Does your plea of guilty to these charges result solely from the fact that you are guilty? 10 [DEFENDANT]: Yes, sir. 11 Doe now claims that he made this representation to the court only because Mr. Trant told him that his father would be arrested if Doe told the court of the government's threat. 12 Doe also testified that, during the same meeting, Trant told him that he would not receive more than ten years in prison. Trant denies that he made such a promise. Trant testified that he told Doe that he probably faced a twenty-year sentence, but that the government might decrease it to as little as ten years if Doe rendered substantial assistance. 13 Under the terms of the plea agreement between Doe and the government, the government dismissed ninety-two other counts. Several paragraphs of the plea agreement are relevant to Doe's current appeal. 14 3. The defendant further agrees to cooperate fully, truthfully and completely with any and all law enforcement agents including but not limited to personnel of the United States Attorney's Office. This cooperation includes, but is not limited to, meeting with such law enforcement agents or United States Attorney's personnel whenever requested. The defendant further agrees not to protect anyone who was truly involved and not to falsely implicate anyone who was not truly involved. 15 4. The defendant understands and acknowledges that his agreement to cooperate fully, truthfully and completely is an integral part of this agreement and that upon his failing to do so the United States will be free to withdraw from this plea agreement. 16 7. At the time of sentencing the United States agrees to bring to the court's attention the nature, extent, and value of the defendant's cooperation. This information will be provided to the Court so that it may be considered in determining a fair and appropriate sentence under the facts of the case. 17 12. In the event the defendant renders substantial assistance as determined by the United States Attorney and subject to the provisions of Rule 35, Federal Rules of Criminal Procedure, the United States will move for a downward departure from the Sentencing [G]uidelines range. 18 Between his plea and sentencing, Doe met at least three times with the FBI. On each occasion he supplied them with information about drug violations, including photo identifications of alleged violators. According to the government and Trant, Doe told the government on each of these occasions that, although he would supply information, he would not testify against anyone. Doe, on the other hand, says that he only told the FBI that he would not testify against his co-defendants. Appellant's Brief at 11. Doe contends that the government did not need his testimony, anyway. Doe claims that he would have been willing to testify against other drug violators, but the government chose not to use the valuable information that he volunteered. 19 Before the sentencing hearing, the district judge, the Assistant United States Attorney responsible for the case, and Trant and his co-counsel Cunningham, met in the judge's chambers to discuss the extent of Doe's cooperation. A transcript of the meeting was not made. The Assistant United States Attorney, Trant, and Cunningham all testified that the judge was informed of the extent of Doe's cooperation--including Doe's refusal to testify against his codefendants and a number of other people whom he had identified as drug dealers. Doe, who was not there, alleges that the government portrayed his cooperation in a biased way. After the meeting, the government did not move for a departure below the applicable guideline range. At sentencing, Trant did not object to the failure to request a downward departure, or argue that this failure was a breach of the plea agreement. Doe was sentenced to the mandatory minimum: twenty years. 20 After sentencing, Doe has continued to provide limited assistance to law enforcement officials. In September 1990, he supplied thirteen pages of information about drug activity, and represented that he would "both take a polygraph examination regarding it and would testify regarding it." Doe refused, however, to wear a wire on a fellow inmate without a firm ex ante guarantee that his sentence would be reduced. At no point did the government move for a post-sentencing reduction of Doe's sentence for substantial assistance. See Fed.R.Crim.P. 35. 21 Doe filed his § 2255 motion on August 12, 1991. The district court referred the case to a magistrate judge who held an evidentiary hearing on February 22, 1994. Doe's motion alleged that (i) the government breached its plea agreement by not requesting a downward departure; (ii) the plea was involuntary because of the government's threats and Trant's misinformation; and (iii) Trant was constitutionally ineffective. The magistrate judge analyzed each of these claims in a lengthy report. The report stated that the government's failure to request a downward departure could only be policed for constitutionally impermissible motives, such as racial discrimination, under Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). It found that Doe's plea was indeed voluntary, and that the government did not make an improper threat to prosecute Doe's father. It found that Trant's representation was well within the bounds of acceptable behavior--specifically finding that Trant told the court of the extent of Doe's cooperation during the meeting before the sentencing hearing. Finally, it found that Trant was not constitutionally ineffective when he chose not to argue that the government breached the plea agreement. The report concluded with a recommendation that Doe's motion be denied. 22 Doe filed timely objections to the magistrate judge's report. The district court adopted the magistrate judge's report and recommendation, dismissing Doe's § 2255 motion. Doe filed a timely notice of appeal. II	{ "pile_set_name": "FreeLaw" }
703 F.Supp.2d 296 (2010) COMPAGNIA IMPORTAZIONI ESPORTAZIONI RAPPRESENTANZE, Plaintiff, v. L-3 COMMUNICATIONS CORPORTION d/b/a L-3 Communications Corporation, Ocean Systems Division, Defendant. No. 06 Civ. 3157(NRB). United States District Court, S.D. New York. March 10, 2010. 298 Anthony J. Marchetta, Esq., Jeffrey Mannis, Esq., Day Pitney LLP, New York, NY, for Plaintiff. Alan Gelb, Esq., Eugene P. Hanson, Esq., Jones, Hirsch, Connors & Bull, New York, NY, for Defendants. MEMORANDUM AND ORDER NAOMI RE ICE BUCHWALD, District Judge. Plaintiff Compagnia Importazioni Esportazioni Rappresentanze ("plaintiff' or "CIER") brought this suit against L-3 Communications Corporation d/b/a L-3 Communications Corporation, Ocean Systems Division ("defendant" or "L-30S"), alleging claims for declaratory relief, breach of contract, fraudulent concealment, breach of the duty of good faith and fair dealing, quantum meruit, promissory estoppel, and for an accounting, arising out of L-30S's alleged failure to pay CIER commissions earned pursuant to an International Representative Agreement signed in 2002. In an Order dated July 31, 2007, 2007 WL 2244062, this Court dismissed all but the breach of contract and declaratory judgment claims. Presently before the Court are the parties' cross-motions for summary judgment. FACTS[1] I. Background Plaintiff CIER is an Italian company that provides services including consulting, technical advising, and sales assistance for advanced military sonar equipment suppliers within Italy and the broader European defense market. CIER Statement of Undisputed Material Facts ("CIER SOF") ¶ 1. CIER markets itself based on its extensive contacts within the Italian military and defense market, through which it promotes and sells the products of clients. See CIER SOF ¶ 19. Defendant L-30S, a Delaware company and former client of CIER, is the current owner of the Ocean Systems ("OS") business. First Amended Complaint, ¶ 3. CIER has served as the sales representative for the OS business since it was owned by Bendix, dating from at least 1983. L-30S Statement of Undisputed Material Facts ("L-3 SOF") ¶ 3. These business dealings have involved a range of products over time.[2] By October 1985, Allied Signal 299 had acquired the OS business, becoming Allied Signal Ocean Systems (ASOS). ASOS continued the relationship with CIER. L-3 Communications Corporation's Memorandum of Law on Cross-Motions for Summary Judgment ("L-3 Mem."), 14; L-3 SOF ¶ 41; CIER Opp. ¶ 41. In March 1998 L-3 acquired the assets of the OS business from Allied Signal. L-3 Mem., 16. The resulting company, L-30S, is the defendant here. The OS business is the developer and producer of Helicopter Long Range Active Sonar ("HELRAS"). L-3 SOF ¶¶ 14-18. HELRAS is a dipping sonar system that is lowered from a helicopter into the ocean. The system transmits and receives signals that detect submarine targets. L-3 SOF ¶ 16; CIER SOF ¶ 4. In the late 1970s, ASOS demonstrated HELRAS successfully for the Italian Navy in an effort to promote sales in Italy. 30S SOF ¶¶ 18, 20. Subsequently, the Italian Navy became interested in pursuing production of a fleet of EH-101 helicopters with HELRAS dipping sonar technology. L-3 SOF ¶¶ 19, 20. Between October 1985 and the period of time at issue here, CIER was engaged by L-30S and its predecessors to promote the HELRAS program under a series of Service and Consulting Agreements. L-3 SOF ¶ 3; CIER Opp. ¶ 3. Between 1985 and 1995, ASOS and CIER entered into a series of these agreements designed to compensate CIER for work promoting HELRAS to the Italian Navy, whereby CIER was paid $20,000 per quarter. L-3 SOF ¶¶ 35-37, 41. The Service Agreements were designed to compensate CIER for its role as the "eyes and ears" of ASOS in Italy and for its promotion of HELRAS. L-3 SOF ¶ 40. This mechanism of compensation was used because HELRAS was still in the developmental stage, so there were no products for CIER to sell on commission. Thus, while the Representative Agreements compensated CIER for sales made of various other products, the Service Agreements allowed CIER to be compensated for its work on HELRAS during the early stages of that program. L-3 SOF ¶¶ 46, 47. During this period, CIER and L-30S first worked to promote HELRAS as the official selection by the Italian Navy for its EH-101 helicopters. CIER SOF ¶ 20. While they succeeded in convincing the Italians as to the value of the product, interest throughout the industry shifted from the EH-101 series of Italian helicopters to a smaller H-90 helicopter being developed under the auspices of NATO as part of a joint four nation program. L-3 SOF ¶ 21; CIER SOF ¶ 25. The four nation program was called the NATO Helicopter Management Agency ("NAHEMA") and included representation from France, Germany, Italy, and the Netherlands. 3 SOF ¶ 21; CIER SOF ¶ 27. The structure of the program was such that NAHMA designated a joint venture called NH Industries S.A.S. ("NHI") as the principal contractor for the program. NHI was composed of one contractor from each of the four representative countries. NHI was tasked with the design and production of the NH-90 helicopter program, a portion of which were to be equipped with long-range dipping sonar devices. The Italian representative to the joint venture, Agusta, was selected to lead the design and production of the platform technology for the helicopter's sonar system. CIER SOF ¶ 30; L-3 Opp. ¶ 30. HELRAS was one type of such dipping sonar, and thus CIER was retained by *300 ASOS to promote the selection of HELRAS for incorporation into this program. There were several obstacles to the fulfillment of this goal, however, including that (1) the HELRAS design was at the time too large to be used effectively on the NH-90 helicopters, and (2) the NAHEMA program required that the sonar equipment be purchased from a manufacturer within one of the four participant countries. L-3 SOF ¶ 22. In an effort to comply with the nationality requirements of the program, ASOS bought German manufacturing company ELAC Nautik Gmbh ("ELAC"), and CIER helped broker a joint venture between ASOS and Finmeccanica, an Italian manufacturing company. Id. ¶¶ 23, 24, 32. As negotiations continued, Finmeccanica became the prime contractor for the venture's NH-90 bid, leaving ASOS as a subcontractor receiving only a portion of the business from the contract bid. Id. ¶¶ 24, 30; CIER SOF ¶ 49. The bid was eventually made with FIAR S.p.A., a subsidiary of Finmeccanica (which later became Galileo Avionica S.p.A. ["Galileo"]), ELAC, and a Dutch company called Fokker. L-3 SOF ¶ 25; CIER SOF ¶ 49; see also Certification of Anthony J. Marchetta ("Marchetta Cert."), Exh. 16 (Manufacturing License and Technical Assistance Agreement between Allied Signal Inc. and FIAR, dated Nov. 18, 1996). Under the July 1, 1995 Service Agreement, CIER's fee was increased to $50,000 per quarter due to the increased effort on their part to arrange the bid and procure the subcontract. L-3 SOF ¶¶ 42, 62. In early November 1996, Agusta selected a different sonar producer for the NH-90 program. CIER SOF ¶ 32; L-3 SOF ¶ 53. This was obviously disappointing to ASOS. Thereafter the Italian Navy,[3] ASOS, and CIER began a campaign to reverse Agusta's decision. L-3 SOF ¶ 54. There is some dispute as to exactly how that campaign transpired, but no one contests that CIER played a role in the efforts and that the decision was reversed in early 1998, when Agusta selected the bid led by Finmeccanica and including ELAC to supply the dipping sonar. L-3 SOF ¶¶ 54-58; CIER Opp. ¶¶ 54-58. L-3 purchased the OS business from ASOS in March of 1998, becoming L-30S. CIER SOF ¶ 84; L-3 Mem., 14. By the end of 1999, the NH-90 program was in development but L-30S had not been awarded a production sub-supply contract yet. L-3 SOF ¶¶ 59-62. HELRAS was thus still not bringing funds into L-30S that could be used to compensate CIER on a commission bases. L-3 SOF ¶ 64. From October 1999 through the award of that sub-supply contract, discussed below, CIER's service and consulting relationship continued through Consulting Agreements between CIER and 30S.	{ "pile_set_name": "FreeLaw" }
J-A12028-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 M.S.C., JR. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. L.M.D. No. 3197 EDA 2015 Appeal from the Order September 18, 2015 In the Court of Common Pleas of Chester County Civil Division, at No(s): 2014-05496-CU BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E. MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 16, 2016 M.S.C., Jr. (“Father”) appeals from the order entered September 18, 2015, in the Chester County Court of Common Pleas, which denied his petition to modify custody and granted the petition to relocate of Mother (“L.M.D.”) to Toms River, New Jersey, with respect to twins, S.R.D. and A.S.D., born in May 2009, and B.S.D., born in July 2011 (collectively, the “Children”). The order further awarded the parties shared legal custody, Mother primary physical custody, and Father partial physical custody of the Children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. In addition, the order provided that the Chester County Court of Common Pleas shall retain jurisdiction over this matter until the State of New Jersey becomes the home state of the Children under the Uniform Child Former Justice specially assigned to the Superior Court. J-A12028-16 Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S.A. §§ 5401-5482.1 We affirm. The trial court summarized the relevant procedural and factual history, in part, as follows: [L.M.D.] and [M.S.C.] are the parents of twins, [S.] and [A.], born [in May 2009], and [B.], born [in July 2011]. Mother and Father never married, and separated in 2011. Mother has been a stay-at-home mother and the primary caretaker of the [C]hildren since their birth. Under the custody order in effect at the time of trial, the parties shared legal custody of their [C]hildren, with Mother having primary physical custody and Father partial physical custody of the [C]hildren. That schedule gave Father custody of the [C]hildren for one overnight every other weekend and one evening per week.[2] Father once earned a substantial income, but by 2015 his income had dropped from $150,000 per year to $10 per hour, and he could no longer provide adequate financial support for Mother and the [C]hildren. Mother had not worked outside the home since 2008, and the parties had amassed significant debt. The home that the parties purchased when they were together, and where Mother and the [C]hildren still lived, was in foreclosure, and was scheduled to be sold at sheriff’s sale. Fortunately for Mother, her own mother owned a spacious home in Toms River, New Jersey, and invited Mother and the 1 Pursuant to order of November 2, 2015, upon motion of Father, the trial court stayed this provision regarding jurisdiction, pending appeal. See Order, 11/2/15. 2 Under the order in effect at the time, entered on May 27, 2015, the parties had shared legal custody, Mother primary physical custody, and Father partial physical custody of the Children. Specifically, Father was awarded partial physical custody, during the school year, from Tuesday at 5:00 p.m. until 7:30 p.m. and every other weekend from Friday at 5:00 p.m. until Saturday at 8:00 p.m. and, during the summer, from Tuesday at 5:00 p.m. until 7:30 p.m. and every other weekend from Thursday at 5:00 p.m. until Saturday at 8:00 p.m. See Custody Order, 5/27/15. -2- J-A12028-16 [C]hildren to move in rent-free. Father had recently moved into his girlfriend’s home in Oxford, [Pennsylvania]. On July 1, 2015, Mother filed an application requesting permission to relocate with the [C]hildren to her mother’s home in Toms River, New Jersey. In her petition, Mother cited the benefits of relocation as providing a stable home for the [C]hildren, as well as the support of her extended family as Mother finished her college [degree] and increased her earning potential. Father objected to relocation, and requested that he be granted primary physical custody of the [C]hildren.[3] A trial on both petitions began on September 9, 2015. Later that day, during the proceedings, Father suffered a cardiac event.[4] Trial recessed so that Father could be evaluated and treated at a hospital. Trial continued on September 23rd and was concluded on September 24, 2015. . . . Trial court opinion, 11/5/15, at 1-3. Over the course of the three hearings on the instant petitions, both Mother and Father testified on their own behalf. In addition, the court heard from creditor, Keith Kimmel; Paternal Grandmother, D.C.; and Father’s girlfriend, with whom he resides, J.G.5 Both parties were represented by 3 Subsequent to receipt of Mother’s notice of proposed relocation, Father filed a counter-affidavit objecting to Mother’s relocation with the Children on June 1, 2015. Father additionally filed a petition to modify custody and to deny Mother’s request to relocate on June 3, 2015. Father requested shared legal custody and primary physical custody of the Children. 4 Father has atrial fibrillation, which was active at the time, and for which he testified he needs a cardioversion. Father additionally testified that he had recently lost fifty-one pounds due to a stomach condition for which he required surgery. See N.T., Hearing, 9/23/15, at 121-122. 5 The court did not and was not requested by the parties, through counsel, to interview the Children. Opinion and Custody Order, 10/1/15, at 7. -3- J-A12028-16 counsel. Notably, upon resumption, Father was absent during portions of the proceedings due to his cardiac condition. See N.T., Hearing, 9/24/15, at 3. By order of October 1, 2015, the trial court denied Father’s petition to modify custody and granted Mother’s petition to relocate to Toms River, New Jersey, with the Children. The court awarded the parties shared legal custody, Mother primary physical custody, and Father partial physical custody of the Children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. In addition, the order provided that the Chester County Court of Common Pleas shall retain jurisdiction over this matter until the State of New Jersey becomes the home state of the Children under the UCCJEA. The trial court’s order, formatted as an opinion and custody order, analyzed each of the factors pursuant to §§ 5328(a) and 5337(h) and included findings of fact and determinations regarding credibility and weight of the evidence. Father, through counsel, filed a timely notice of appeal, along with concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii).6 On appeal, Father raises the following issues for review: 1. Did the [h]onorable [t]rial [c]ourt err in transferring jurisdiction to the state of New Jersey in violation of UCCJEA without taking any testimony concerning this point and 6 The court’s Rule 1925(a) opinion adopted its October 1, 2015 opinion and custody order which, as indicated, analyzed each of the custody and relocation factors pursuant to §§ 5328(a) and 5337(h), respectively. -4- J-A12028-16 without Defendant requesting this relief in her Petition for Relocation? 2.	{ "pile_set_name": "FreeLaw" }
782 F.2d 278 251 U.S.App.D.C. 196 Crookerv.Federal Bureau of Prisons 84-5288 United States Court of Appeals,District of Columbia Circuit. 1/15/86 1 D.C.D.C. APPEAL DISMISSED	{ "pile_set_name": "FreeLaw" }
531 P.2d 915 (1975) STATE of Oregon, Respondent, v. Stephen SCHINDLER, Appellant. Court of Appeals of Oregon. Argued and Submitted January 17, 1975. Decided February 18, 1975. Rehearing Denied March 19, 1975. Review Denied April 8, 1975. 916 Darrell E. Bewley, Portland, argued the cause for appellant. With him on the briefs was Francis F. Yunker, Portland. Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem. Before SCHWAB, C.J., and FOLEY and FORT, JJ. FORT, Judge. Stephen Schindler, defendant herein, was jointly indicted with Matt Bob Freeman and George Andrew Lake for theft in the first degree. ORS 164.055. He was tried separately and convicted. On appeal he assigns a number of errors, including the denial of his motion for a directed verdict of acquittal, the failure to grant certain other motions, and certain jury instructions. At some time over the weekend of May 3-6, 1974, the Amrick Suzuki Company warehouse in Portland was burglarized of ten new Suzuki and Rickman brand motorcycles. The Amrick Suzuki dealership office was located on North Lombard Street, its warehouse at the corner of Killingsworth and North Missouri. On the afternoon of May 6, 1974, defendant saw James Shaw and codefendant George Lake walking and offered them a ride. Shaw testified that in the ensuing conversation Lake told defendant that he had several "hot" motorcycles for sale at $100 apiece. Defendant, according to Shaw, expressed an interest in the merchandise, and the three proceeded to the Lake residence where they inspected the motorcycles in the basement. Defendant 917 soon left but indicated he would return because of his interest in a motorcycle. Later in the day, defendant met one Michael Deardorff, the state's chief witness. Deardorff testified to the following effect at trial: Defendant told Deardorff that he knew where a Suzuki 250, still in its crate, could be bought for $100. Defendant was "very intent" on consummating the transaction. Deardorff testified: "A He [defendant] told me that he had the money on him and that * * * if I would pay him back the next day * * * then he would just go over and buy it for me * * ." Defendant and Deardorff then drove to the Lake residence to inspect the motorcycles. George Lake told Deardorff that the Suzuki 250 had been sold, but that he could purchase a Rickman for the same price, which was $80. Lake also informed Deardorff that the motorcycles were hot. When Lake indicated that he could not furnish a title or bill of sale to Deardorff, defendant volunteered that he (defendant) would give a bill of sale. After Deardorff and defendant left the Lake residence, defendant told Deardorff that the $20 price discrepancy was due to his own desire to make "a little bit extra" on the sale. The two agreed that Deardorff, if he decided to make the purchase, would pay $100. After Deardorff and defendant parted, Deardorff proceeded to a police station and related the night's events to a detective. He was given $100 and instructed to purchase the motorcycle offered him. Deardorff then returned to defendant's residence and told him that he had decided to buy the Rickman. Defendant informed him that the Rickman had been sold but that a Suzuki 250 was available for the same price. Deardorff agreed to purchase the Suzuki. Also during this conversation, defendant said that he himself had bought another of the motorcycles at Lake's and traded it for a red GTO automobile that was now in front of his house. James Shaw testified that defendant told him the same thing. Deardorff and defendant then returned to the Lake residence. This time Deardorff dealt with one Freeman, the other codefendant, who lived with Lake. After first quoting him a price of $80 on the Suzuki, Freeman demanded $100 for the motorcycle, which Deardorff paid. Subsequently, the motorcycle was loaded into James Shaw's pickup and, at defendant Schindler's suggestion, taken to his own residence until Deardorff could make further arrangements. Shaw and defendant unloaded the cycle and placed it in defendant's garage. Upon leaving, Deardorff told defendant that he would pay him the agreed $20 later in the week. A short while later, Deardorff returned to Schindler's residence with a pickup truck. Defendant came out and told Deardorff to turn off the engine so as not to arouse suspicion. Defendant then loaded the motorcycle into the pickup. Deardorff took it to the police station where it was identified by serial number as stolen property. Defendant first challenges the overruling at trial of his motion for a directed verdict of acquittal. In considering such, we review the evidence in the light most favorable to the state, and will sustain the trial court's action if there is any substantial evidence to support the verdict of guilt beyond a reasonable doubt. See, State v. Miller, 14 Or. App. 608, 513 P.2d 1199, Sup.Ct. review denied (1973); State v. Krummacher, 15 Or. App. 234, 515 P.2d 412 (1973), rev'd on other grounds, 269 Or. 125, 523 P.2d 1009 (1974); State v. Gross, Or. App., 99 Adv.Sh. 1987, 526 P.2d 1050 (1974). Based on the foregoing facts we conclude the motion was correctly denied. Defendant also asserts that the state did not show that any motorcycle was stolen from Gene Jurick, and that such constitutes a failure of proof. The indictment alleges the corpus delicti to consist of "one 918 (1) Suzuki RL 250 motorcycle, of the total value of more than Two Hundred Dollars, the property of Gene Jurick." At the trial, testimony showed that the motorcycles taken in the burglary were the property of "Amrick Suzuki, Inc." Gene Jurick and a business associate owned all the stock in said corporation. A variance between the indictment and proof presented at trial does not constitute reversible error unless such variance was material or prejudicial to the defendants in presenting their defenses. State v. Hanson/Hughes, 14 Or. App. 586, 513 P.2d 1202, Sup.Ct. review denied (1973). Moreover, ORS 135.725 specifically declares that an erroneous allegation as to the person injured by a crime such as that committed herein is not material so long as the subject act is otherwise sufficiently described. See, State v. Smith and Leonard, 253 Or. 280, 453 P.2d 942 (1969), and authorities cited therein. State v. Nored, 10 Or. App. 126, 498 P.2d 839, Sup.Ct. review denied (1972), relied on by defendant, is not inconsistent with this rule, merely indicating that an allegation of ownership may be necessary to protect the defendant from being charged twice for the same offense. Defendant makes no claim that there is any such danger herein, nor can we conceive of any. The contention is without merit. Defendant next asserts that there was a failure of proof in connecting the motorcycle purchased by Deardorff with the burglary. At trial, evidence was adduced to the following effect: (1) a number of Suzuki and Rickman motorcycles were stolen from the Amrick warehouse; (2) several Suzuki and Rickman motorcycles in new condition were observed in the basement of the Lake-Freeman residence very shortly after this burglary; (3) Deardorff was informed by Lake that the motorcycles in the basement were "hot"; (4) the Rickman motorcycle inspected by Deardorff on the Lake-Freeman premises had affixed to it a sticker bearing a North Lombard Street address the street on which the Amrick dealership, as distinguished from its warehouse, was located; (5) a few hours after the sale to Deardorff, police found a registration tag on the Lake-Freeman premises bearing the serial number of one of the motorcycles taken in the burglary; and (6) Deardorff delivered the Suzuki motorcycle purchased from Freeman and taken from the Lake-Freeman basement to the police, who identified it by serial number as stolen property. We find such evidence sufficient to support an inference that the motorcycle purchased by Deardorff was taken as a part of the Amrick warehouse burglary. Defendant next contends that there was a failure of proof that defendant was involved in theft of any kind under our criminal code. The evidence, as set forth above, viewed in the light most favorable to the state, is such that a jury could conclude that defendant was intimately involved in the sale, disposition and concealment of property he knew or should have known was stolen, thereby rendering him guilty of theft by receiving. See, State v. Doster, 247 Or. 336, 427 P.2d 413 (1967). The argument is without merit. Defendant contends that it was error for the court to deny his motion to withdraw from the jury the question of whether defendant was involved in the actual theft of the motorcycle, and to give in his instructions the statutory definition of theft. He claims that such could easily have led the jury to assume that there was evidence of some actual involvement by defendant in the theft from	{ "pile_set_name": "FreeLaw" }
(2008) Pamela F. REYNOLDS, Plaintiff, v. REHABCARE GROUP EAST INC., Defendant. No. 4:07-cv-00388. United States District Court, S.D. Iowa, Central Division. December 12, 2008. ORDER ROBERT W. PRATT, Chief Judge. Pamela Reynolds ("Plaintiff") filed the present action against RehabCare Group East Inc. ("Defendant" or "RehabCare") on August 29, 2007 (Clerk's No. 1), alleging that Defendant violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-33. Specifically, Plaintiff claims that Defendant violated § 4311 of USERRA by discriminating against her because of her military service and that Defendant violated §§ 4312-13 by refusing to offer her reemployment after her return from active military service. Defendant filed an Answer to Plaintiffs Complaint on October 1, 2007. Clerk's No. 11. On October 4, 2007, Plaintiff filed a Motion for Preliminary Injunction. Clerk's No. 13. Following a hearing, the Court denied Plaintiffs request for a preliminary injunction in an Order dated January 29, 2008. See Reynolds v. Rehabcare Group East Inc., 531 F.Supp.2d 1050 (S.D.Iowa 2008). On March 26, 2008, Defendant filed the present Motion for Summary Judgment. Clerk's No. 33. After receiving an extension of time for the purpose of conducting additional discovery, Plaintiff filed a Resistance to Defendant's Motion for Summary Judgment on August 15, 2008. Clerk's Nos. 49-50. Defendant filed a Reply to Plaintiffs resistance on September 3, 2008. Clerk's No. 57. Neither party has requested a hearing and the matter is, therefore, fully submitted. I. FACTUAL BACKGROUND Plaintiff is a licensed physical therapist in the State of Iowa. Def.'s Material Facts ¶ 21. In 2002, Plaintiff began providing physical therapy services at Green Hills Retirement Community ("Green Hills") in Ames, Iowa. Id. ¶ 22. Green Hills has contracted with LifeCare Services, Inc. ("LifeCare") to provide management services to Green Hills' residents. Id. ¶ 2. Rod Copple ("Copple"), Green Hills' Executive Director, is an employee of LifeCare. Id. ¶ 3. Various independent entities provide vendor services at Green Hills. Id. ¶ 4. One such vendor service provided to Green Hills' residents is rehabilitative therapy. Id. At no time has Plaintiff ever been employed by Green Hills. Id. ¶ 5. Rather, Plaintiff provided physical therapy services at Green Hills beginning in 2002 pursuant to Green Hills' contract for rehabilitation services with Plaintiffs employer, MJ Care. Id. ¶¶ 22-23. MJ Care's contract with Green Hills ended in early 2004. Id. ¶ 24. Green Hills then entered into a contract with Progressive Rehab Associates ("Progressive"), a company that provides rehabilitation services in various communities throughout Iowa. Id. ¶¶ 6, 25. Progressive provided rehabilitation services at Green Hills from May 1, 2005 to June 30, 2007. Id. ¶ 7. Plaintiff became an employee of Progressive in May 2004, id. ¶ 26, and provided rehabilitation services at Green Hills for Progressive until she was deployed to active military duty on March 23, 2006.[1]Id. ¶ 28. Plaintiff served on active duty at Fort Hood, Texas from March 23, 2006 to July 8, 2007. Id. ¶ 30. On May 3, 2007, while Plaintiff was stationed at Fort Hood, Progressive gave Green Hills sixty days notice that it was terminating the contract for rehabilitation services, apparently due to Green Hills' decision to become a Skilled Nursing Facility ("SNF").[2]Id. ¶¶ 31-33. Upon learning of Progressive's decision in this regard, Green Hills began the process of locating a new vendor for rehabilitation services.[3] On July 26, 2007, Green Hills ultimately contracted with Deerfield Retirement Community ("Deerfield"),[4] which in turn, subcontracted with RehabCare, a company that provides rehabilitation services for health care facilities nationwide, for the provision of rehabilitation services at Green Hills. Id. ¶¶ 11-13, 37-38. RehabCare was aware of Plaintiff's military service commitments prior to signing the contract with Deerfield to provide services at Green Hills. Pl.'s Material Facts ¶ 77. Plaintiff has never been employed by RehabCare. Def.'s Material Facts ¶ 14. At the time of her deployment, Plaintiff was receiving $51.28 per hour as an employee of Progressive. She worked 30 hours per week, had three weeks of annual vacation, and was allowed to participate in Progressive's 401K program. Hr'g Tr. at 39. On June 5, 2007, during her "terminal leave" from the military,[5] Plaintiff contacted Progressive and Copple and stated that she was "reapplying for [her] position as physical therapist at Green Hills," pursuant to USERRA. Pl.'s App. at 221. In a post script to Copple specifically, Plaintiff stated her understanding that "Progressive is ending its relationship with Green Hills" and asserted that any successor contractor would be "a `successor in interest' and covered by USERRA." Id. A copy of Plaintiff's letter was forwarded to Rehab-Care.[6] Plaintiff had ongoing discussions with Melissa Violette ("Violette"), the regional manager of operations for RehabCare, beginning in June 2007. See generally Hr'g Tr. (Pl.'s Testimony at 34-59). Plaintiff maintained during these conversations that RehabCare was obligated to "reemploy" her under USERRA. Id. Violette told Plaintiff that she would provide the information to her supervisors, as RehabCare had a policy of not making employment offers of any sort until such time as it actually had a contract with a specific retirement home in place. Id. at 43. After their conversations, Violette sent Plaintiff an application for employment with Rehab-Care. Plaintiff filled out the application on July 11, 2007, making substantial changes to the form of the application. See Def.'s Ex. E. Specifically, Plaintiff crossed out the word "employment" in the heading, "Application for Employment," and hand-wrote "ReEmployment/USERRA" in its place. Plaintiff further wrote: "I am an employee of Progressive Rehab Associates returning from 16 months of Active Duty with the United States Army. I am seeking reemployment as physical therapist at Green Hills Retirement Community." Id. Plaintiff also crossed out the "Applicant Statement," certifying that the information in the application was true and acknowledging that employment would be at-will, and wrote "Not applicable-See USERRA." Id. Violette asked Plaintiff to meet her at Green Hills on July 27, 2007, the first day that RehabCare was to be present at Green Hills. Hr'g Tr. at 46. Plaintiff met with Violette for approximately an hour or an hour and one-half, during which time they reviewed patient records and Plaintiff gave Violette a tour of the building. Id. at 46-47. Plaintiff also introduced Violette and another RehabCare employee to various Green Hills staff. Id. at 49. Following the tour, Plaintiff and Violette spoke privately. Id. at 50-51. Violette told Plaintiff that RehabCare really wanted to bring Plaintiff on as an employee, but that RehabCare did not think that USERRA applied to it because RehabCare did not purchase any of Progressive's assets. Id. at 51. Plaintiff responded that she believed that USERRA did apply and that her lawyer would contact RehabCare's lawyer. Id. Violette informed Plaintiff during this meeting that RehabCare had offers of employment for Plaintiff to employ her as a physical therapist at Green Hills, but Plaintiff refused to hear the offers, maintaining that "if they are not going to honor the USERRA law and reinstate me into my job that I had prior to leaving, I didn't want to hear the offer." Id. at 83. Since that time, Plaintiff has not had any further personal communication with RehabCare, except in the context of this litigation, and she has not worked for RehabCare in any capacity. II. STANDARD OF REVIEW The plain language of Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir.1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n. 5 (8th Cir.1975)). The purpose of the rule is "`not to cut litigants off from their right of trial by jury if they really have issues to try,'" Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting	{ "pile_set_name": "FreeLaw" }
272 Kan. 1298 (2002) 38 P.3d 640 In the Matter of LARRY W. WALL, Respondent. No. 86,975. Supreme Court of Kansas. Opinion filed January 25, 2002. Alexander M. Walczak, deputy disciplinary administrator, argued the cause and was on the formal complaint for petitioner. Stephen M. Joseph, of Wichita, argued the cause and was on the briefs for respondent, and Larry W. Wall, respondent, argued the cause pro se. Per Curiam: This is a contested attorney discipline case filed by the office of the Disciplinary Administrator against the respondent, Larry W. Wall, an attorney admitted to the practice of law in the State of Kansas. All exhibits were admitted by agreement of counsel. Other evidence was submitted by stipulation. Respondent was the only witness. The Hearing Panel concluded that the respondent violated Kansas Rules of Professional Conduct (KRPC) 1.3 (diligence) (2001 Kan. Ct. R. Annot. 323), KRPC 1.4(a) (communication) (2001 Kan. Ct. R. Annot. 334), KRPC 1.15(a) (safekeeping property, separate account) (2001 Kan. Ct. R. Annot. 376), and KRPC 1.15(b) (safekeeping property, promptly deliver funds). The panel recommended public censure. Findings of Fact The respondent takes exceptions to three of the panel's findings of fact and conclusions of law. The panel's findings are as follows (those findings and conclusions to which the respondent takes exception are marked with an asterisk): "The Disciplinary Administrator and the Respondent stipulated to the following facts: "1. Larry W. Wall is an attorney at law .... His last registration address with the Clerk of the Appellate Courts in Kansas is [in] Wichita, Kansas ... . "DA7956 (Complaint of Katha Helms) "2. On October 1, 1997, Katha J. Helms was severely injured in an automobile 1299 accident when her automobile left K-99 Highway at a bend between Howard and Severy, Kansas. "3. As a result of this accident, on June 7, 1999, Helms retained Greg Lower as her attorney. "4. On July 15, 1999, Lower wrote to Helms telling her that he intended to refer her case to Wall. Lower asked Helms to sign a copy of the letter and return it to him if she agreed to the referral. "5. On July 15, Lower spoke to Wall concerning Helms' accident and injuries and advised Wall that he planned to recommend to Helms that her case be referred to Wall for representation. "6. On July 16, 1999, Lower wrote to Wall that Helms had orally agreed to the referral. "7. On August 23, 1999, Lower forwarded Helms' written approval of the referral and Lower's office file to Wall. The file contained the investigation report on Helms' accident, nine other auto accident investigation reports occurring in the same general area as Helms' accident, and several letters concerning requests for accident investigation reports to and from various law enforcement agencies, among other things. "8. On October 2, 1999, the [s]tatute of [l]imitation had run in Ms. Helms' case. "9. Prior to the referral of the case to Wall, Lower spoke with Jay Pfeiffer, an engineering expert, about investigating the accident. "10. On November 10, 1999, Steve Bough, an attorney in the firm of Shamberg, Johnson & Bergman, telephoned Wall's office inquiring about the Helms case. Bough left a telephone message for Wall. "11. On reading the telephone message, Wall discovered that the [s]tatute of [l]imitations had run on Helms' claim. "12. On December 20, 1999, Steve Bough telephoned Wall again inquiring about the Helms case. "13. On January 14 and February 28, 2000, Lynn Johnson, a partner in the firm of Shamberg, Johnson & Bergman, wrote to Wall about the Helms case. "14. On February 22, 2000, Wall told Lower that Wall had missed the statute of limitations in Helms' case. "15. On February 23, 2000, Wall wrote to Helms stating that the statute of limitations had run in her case and that she could file a claim against him with his malpractice carrier. "16. Helms did not receive Wall's letter of February 23, 2000, because Helms had moved and was no longer using the post office box address she provided to Lower. "17. On May 15, 2000, Lynn Johnson again wrote to Wall inquiring about Helms' case. "18. On June 19, 2000, Helms called Lower. During their telephone conversation, Helms learned for the first time that the statute of limitations had run in her case. 1300 "19. On June 19, after Helms spoke to Lower, Helms telephoned Wall. Wall was not available and Helms left a message for him. "20. On June 23, 2000, Wall returned Helms' telephone call. This telephone conversation was the first personal contact that Wall had with Helms since accepting the referral of her case in July, 1999. "21. On June 23, 2000, Helms filed a complaint with the Disciplinary Administrator. "22. On July 6, 2000, Wall sent a copy of his February 23, 2000, letter to Helms as his response to Helms' complaint. [We note that the letter in the record is dated February 23, 1999.]" "DA7472 (Complaint of Charles Wall) "23. Erma B. Wall, a widow, died on January 23, 1998. Erma B. Wall had two children who survived her: Larry Wall [respondent] and Charles Wall. "24. Wall drafted his mother's will. Wall was the executor under his mother's will. "25. After their mother's death, Wall and his brother decided not to probate their mother's will because of the value of the estate. "26. Under the provisions of Mrs. Wall's will, Wall and his brother were to share equally in the estate. Additionally, a statement signed by Mrs. Wall and attached to her will provided for specific personal property bequests to the two brothers. "27. On January 23, 1998, three days subsequent to his mother's death, Wall opened a non-interest bearing checking account in his sole name and, using a power of attorney, transferred a $4,288.70 certificate of deposit owned by his mother, $1,846.32 from his mother's checking account, and $1,618.87 from his mother's savings account into the new account. In subsequent months, Wall also collected other monies coming from his mother's death and deposited those in that non-trust and non-interest bank account. "28. The bank account opened by Wall was not labeled as a trust account, but no other money was commingled with the money from his mother's estate. Some money in the account was used to pay Mrs. Wall's funeral expenses, to pay her outstanding debts, and to pay the costs of preparing Mrs. Wall's house for sale. Wall did not withdraw any money from that account for his personal use until all the remaining money in the account was divided between Wall and his brother. None of the money in the account was misused or misappropriated by Wall. "29. Wall caused a quitclaim deed dated January 4, 1998, to be filed with the Office of the Register of Deeds. The deed conveyed his mother's house and property to Wall and his brother. The deed was recorded 3 hours and 29 minutes after Mrs. Wall's death on January 23, 1998. Mrs. Wall did not sign the deed. Wall does not remember whether he signed the quitclaim deed for his mother, but Wall did have a durable power of attorney that permitted him to do so prior to her death. *1301 "30. Within a few months after Mrs. Wall's death, Wall and his brother each received his share of their mother's personal property and his share of the proceeds from the sale of their mother's house. Sometime during the period of June 1998, to July 2000, Charles Wall and his attorney made demands for Charles Wall's share of the money held by Wall in the segregated bank account. "31. On July 17, 2000, sixteen months after the death of Erma B. Wall and following questioning of Wall during an investigation of an ethical complaint made by Charles Wall, Wall distributed to Charles Wall his share of the money held in the checking account. The amount sent to Charles Wall was $1,749.80, which included a small amount of interest. The check was accompanied by a letter from Larry Toomey, who was representing Larry Wall, and a document prepared by Toomey that was an accounting of Mrs. Wall's property. "32. On July 26, 2000, Toomey again wrote to Charles Wall sending him an additional $666.99 representing 10 percent annual interest on his share of the remaining money from the bank account and a credit for a copying expense previously charged equally to Larry Wall and Charles Wall. "C. STIPULATED VIOLATIONS "The respondent stipulated that his conduct violated the following rules: "Rule 1.3, Diligence. By missing the statute of limitations in the Helms case, Respondent was not diligent. "Rule. 1.4, Communication. By failing to communicate	{ "pile_set_name": "FreeLaw" }
14 B.R. 840 (1981) In re Russell E. BLEWETT and J. Susan Blewett, Debtors. FIRST CITY BANK, Appellant, v. Russell E. BLEWETT and J. Susan Blewett, Appellees. BAP No. CC-81-1030HGK. United States Bankruptcy Appellate Panels of the Ninth Circuit. Submitted June 1, 1981. Decided August 31, 1981. 841 Richard C. Robbins, Tremaine, Shenk, Stroud & Robbins, Los Angeles, Cal., for appellant. Richard M. Moneymaker, Moneymaker & Morrison, Los Angeles, Cal., for appellees. Before HUGHES, GEORGE and KATZ, Bankruptcy Judges. OPINION HUGHES, Bankruptcy Judge: Appellant First City Bank timely filed a complaint against Mr. and Mrs. Blewett, joint debtors under Chapter 7 of the Bankruptcy Code. Appellees moved to dismiss for failure to state a cause of action. At the hearing on this motion, appellant orally moved for leave to amend the complaint. Leave to amend was denied and the complaint was ordered dismissed. We reverse. I The title of the complaint as filed was "Complaint Specifying Objection to Discharge and for Money Due" followed by "11 U.S.C. 523(a)(2)." Dischargeability of a particular debt is governed by that code section; objections to discharge by 11 U.S.C. § 727. The complaint itself stated the elements of a cause of action under § 523(a)(2) in alleging that money owed by the debtors was obtained by use of a false financial statement. The prayer, although speaking of objection to discharge, sought a money judgment. This is compatible with dischargeability under § 523 but not with denial of discharge under § 727. The proposed amendments would change "objection" to "exception" in the title, make the same change twice in the body of the pleading, and change the second prayer from "the Court deny debtor's discharge pursuant to 11 U.S.C. 583 (sic)" to "The Court except from debtors' discharge pursuant to 11 U.S.C. 523." II Dismissal of the complaint for failure to state a cause of action was erroneous, even in the absence of the motion for leave to amend. The premise of the motion to dismiss was that appellant sought to deny appellee's discharge pursuant to 11 U.S.C. § 727 and that use of a false financial statement is not an enumerated ground for such relief. That premise, however, was based on nothing more than appellant's use of terms such as "objection to discharge" instead of "exception from discharge." On the other hand, the complaint stated somewhat clumsily, to be sure a cause of action under 11 U.S.C. § 523(a)(2) to except appellant's debt from discharge. Bankruptcy Rule 708 makes Rule 8 of the Federal Rules of Civil Procedure applicable in adversary proceedings. Rule 8(f) states that, "All pleadings shall be so construed as to do substantial justice." The purpose of this rule is to facilitate a decision 842 on the merits, Conley v. Gibson, (1957) 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, and to give notice to the adversary of the nature or basis of the claim brought against him and the general type of litigation involved. Lewis v. U.S. Slicing Mach. Co., 311 F.Supp. 139, (D.C.Pa.1970), Lobianco v. Valley Forge Military Academy, 224 F.Supp. 395, (D.C.Pa.1963), affirmed 331 F.2d 851 (3d Cir. 1964). The complaint in this case, although containing errors in terminology, gave the debtor adequate notice of the nature and basis of the claim and the type of litigation to be expected. A pleading, according to the liberal concepts of Rule 8, is to be judged by its substance rather than by its form or label. 5 Wright & Miller, Federal Practice and Procedure, § 1286, p. 383. As stated in Voytko v. Ramada Inn of Atlantic City, 445 F.Supp. 315, (D.C.N.J.1978), at 325: "It would be improper to dismiss a claim which raises a cognizable cause of action where that claim is merely mislabeled, in view of the command of F.R.C.P. 8(f) that, `[a]ll pleadings shall be so construed as to do substantial justice'." Thus, even if appellant had not sought to correct the mislabeling of its complaint, the order of dismissal was erroneous. III The bankruptcy judge also abused his discretion in denying appellant's motion to amend its complaint. "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served . . ." Fed.Rule Civ.Proc. 15(a). No answer had been filed and a motion to dismiss is not a responsive pleading. Nolen v. Fitzharris, 450 F.2d 958 (9th Cir. 1971); Richardson v. U.S., 336 F.2d 265 (9th Cir. 1964). The trial court apparently was persuaded by the argument that the proposed amendments would have changed the cause of action from an objection to discharge under 11 U.S.C. § 727 to a determination of the dischargeability of a particular debt under 11 U.S.C. § 523(a)(2). Appellees argue that because the amendment was proposed after the bar date fixed pursuant to Bankruptcy Rule 409(a)(2), it represented an untimely new cause of action. The argument is without merit. Fed. Rule of Civil Procedure 15(c) provides that whenever a "claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the original pleading." Appellant set forth (or attempted to set forth) a claim based on a transaction involving a false financial statement. The operative facts being unchanged, the amended complaint will be deemed filed as of the date of the original complaint. Reversal of a trial court's refusal to grant leave to amend is available only if abuse of discretion is found. Komie v. Buehler Corp., 449 F.2d 644 (9th Cir. 1971). The trial court must exercise its discretion, however, and failure to provide a statement of reasons justifying the denial where reasons are not otherwise readily apparent constitutes an abuse of discretion. Hurn v. Retirement Fund Trust of Plumbing, etc., 648 F.2d 1252 at 1254 (9th Cir. 1981). There being no justification in the record, the trial court's denial of the motion for leave to amend constituted an abuse of discretion. IV The orders dismissing the bank's complaint for failure to state a cause of action and denying leave to amend are reversed.	{ "pile_set_name": "FreeLaw" }
755 N.W.2d 169 (2008) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Dale MAURO, Defendant-Appellant. Docket No. 135978. COA No. 278853. Supreme Court of Michigan. September 9, 2008. On order of the Court, the application for leave to appeal the January 11, 2008 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).	{ "pile_set_name": "FreeLaw" }
174 Kan. 506 (1953) 257 P.2d 116 In the Matter of the Estate of MARY C. JONES, Deceased. EMMA JONES ALDRICH, Executrix of the Estate of Mary C. Jones, Deceased, Appellant, v. RUTH ELIZABETH JONES, Executrix of the Estate of David S. Jones, Deceased, Appellee. No. 38,943 Supreme Court of Kansas. Opinion filed May 9, 1953. W.D. Jochems, of Wichita, argued the cause, and John McKenna, of Kingman, was with him on the briefs for the appellant. Paul R. Wunsch, of Kingman, and Glenn J. Shanahan, of Wichita, argued the cause, and Charles H. Stewart, of Kingman, and Dale M. Bryant, Morris H. Cundiff, John C. Frank, and Garner E. Shriver, all of Wichita, were with them on the briefs for the appellee. The opinion of the court was delivered by WERTZ, J.: This is an appeal from a judgment on the final accounting and settlement of an estate by an executrix. Mary C. Jones, a resident of Kingman county, died testate November 7, 1937, and her will was admitted to probate in that county January 3, 1938. At the time of her death she was survived by two children, a daughter, Emma Jones Aldrich, who was designated by the testatrix as executrix of the will, and was appointed and qualified as such on January 3, 1938, and a son, David S. Jones, who were the principal beneficiaries of her will. By the terms of the will, Mary C. Jones bequeathed $1,500 to a nephew, and a special bequest of $30,000 to the daughter Emma Jones Aldrich. The possession and income from certain real estate was devised to her daughter, Emma and son, David, and the survivor of them, so long as either should live. The remainder of the mentioned property was devised to two great grandchildren. The residue of her estate, consisting of several tracts of real estate and personal property, constituting the bulk of her estate, was devised and bequeathed to Emma and David in equal shares. On March 3, 1938, the executrix filed an inventory and appraisement showing a bank account of $5,704.96, real estate mortgages and government bonds in the amount of $106,330.66, and the devised tracts of real estate valued at $31,000. After the executrix qualified as such, she paid the expenses of last sickness, funeral expenses, the nephew's legacy, various taxes, insurance premiums upon real estate, and estate and inheritance taxes. Subsequent 508 thereto on June 20, 1940, she paid to herself as executrix a fee of $3,500, her special bequest of $30,000, and an attorney fee. The personal property was more than sufficient to pay all debts, funeral and administrative expenses, taxes of all kinds, and special bequests. The will of Mary C. Jones gave the executrix no authority over the real estate, nor did any order of the probate court authorize her to take possession of the real estate and collect rents, or exercise any supervision thereof. The executrix under the will took over all the property belonging to the estate, including that specifically devised, and exercised full power, control and direction over it, and for more than thirteen years was recognized by everyone concerned as executrix of the estate with full power, control and direction over the real and personal property owned by the decedent at the time of her death. Throughout this period she, as executrix, received and collected the rents and income from the real estate and property bequeathed and devised under the will, and made and paid for repairs on the property, with the full knowledge of such action on the part of the heirs, and with their apparent consent and approval. She made no accounting in the estate to the probate court and none was requested by any of the parties concerned, until the year 1951 as hereinafter related. She maintained only one bank account in the name of Mary C. Jones estate and to this account she deposited all receipts and incomes from the various properties of the estate, including rental incomes from the real estate. From this same account she paid all taxes, repairs, insurance on the real estate, expenses of administration, and made certain distributions to herself and to her brother, David, and other beneficiaries of the estate. She made both federal and state income tax returns as executrix of Mary C. Jones estate for the years 1938 to 1950, inclusive. In these income tax returns she reported and included the income from the mortgages, government bonds, as well as the rentals collected from the real estate. On these fiduciary returns she claimed and deducted credit for depreciation of property, expenses, maintenance, and otherwise treated them as assets of the estate of Mary C. Jones, of which she was the executrix. David S. Jones, brother of the executrix, died August 30, 1950. Subsequently, his wife Ruth Elizabeth Jones, appellee herein, was appointed and qualified as executrix of the will of David S. Jones in the probate court of Sedgwick county. On May 3, 1951, she filed an application in the probate court of Kingman county to compel the executrix, Emma Jones Aldrich, to make final settlement and 509 accounting of the Mary C. Jones estate. On September 5, 1951, Emma filed her petition for final settlement and actually accounted for $138,665.76, consisting of items and amounts received and paid out by her in her official capacity, without regard to receipts and expenditures pertaining to the real estate. Application was made, and the case was transferred to the district court for hearing (G.S. 1951 Supp. 59-2402a). A pretrial conference (G.S. 1949, 60-2705) was called, and thereafter trial was had in the district court on April 30, 1952. The case was submitted to the trial court upon the testimony of Emma, along with the probate court files, bank statements, and fiduciary income tax returns filed by Emma as executrix, for the years 1938 to 1950, inclusive, and the individual income tax returns of David S. Jones for the years 1939 to 1949, inclusive. The trial court extended the action into one including an accounting for rents collected by her from the real estate devised to her and her brother, David. The court gave the executrix full credit for the total receipts and expenditures, as shown by her final settlement, in the amount of $138,665.76, with the exception of $3,500 which it disallowed as being paid to her for her services as executrix, and rendered judgment against Emma in the sum of $20,381.85. The court treated this balance of rentals as a shortage due the estate of David S. Jones. From this judgment, Emma Jones Aldrich, Executrix of the Estate of Mary C. Jones, deceased, appeals. Appellant first contends that the trial court erred in holding that she, as executrix, was required to account for the rentals on the real estate devised to her and her brother, David S. Jones, under the will of Mary C. Jones, and asserts that at the time the will was admitted to probate, the old probate code was in effect. Under the law as it then stood, title to the real estate and the right to receive the rentals vested in the devisees upon the death of the testator; that the executrix had no jurisdiction or control over the real estate unless the will specifically granted it, and cites several of our authorities to support that contention. Normally, appellant's contention is correct, but her argument overlooks the fact that there are exceptions to this rule. In Firmin v. Crawford, 140 Kan. 370, 36 P.2d 970, it was said: "It needs little citation of authority to show that as administrator he had nothing to do with the rents from the real estate (Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50, and cases cited; 11 R.C.L. 123; 23 C.J. 1139), although under certain circumstances the heirs or devisees may be estopped to recover *510 as against him where the moneys have been applied to taxes and mortgage payments with their knowledge and consent." (p. 372.) In Kothman v. Markson, 34 Kan. 542, 9 Pac. 218, we stated: "Where an administrator takes possession of the real estate of an intestate under an order of the probate court, and collects and receives rents for the same, which he reports to the probate court, and with which he charges himself as administrator, and a part of which is used for the benefit of the estate, and to pay the costs of its administration, and all is done with the knowledge and consent of the heirs of the intestate, held, that the administrator is estopped to deny that the rents so collected and received by him are assets of the estate." (Syl. ¶ 2.) And again in the case of In re Estate of Charles, 158 Kan. 460, 148 P.2d 765, we stated: "Where the terms of a will authorize the executor therein named to sell real estate belonging to a decedent on the date of her death and direct, after disposition of certain personal property, that the proceeds of the rest and residue of the estate be paid to the testatrix's children, and, where immediately after the probate of such will the executor takes over the custody and control of the real estate and for a period of time,	{ "pile_set_name": "FreeLaw" }
456 So.2d 357 (1984) Ex parte Marianne CLARE. (Re Marianne Clare v. State of Alabama). 82-1235. Supreme Court of Alabama. July 13, 1984. William R. Blanchard, Jr. of Pappanastos, Samford, Roberts & Blanchard, Montgomery, for petitioner. Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent. ADAMS, Justice. We granted certiorari in this case to consider whether the Court of Criminal Appeals, 456 So.2d 355, was correct in affirming the trial court's decision ordering defendant to pay $15,000.00 as restitution resulting from her conviction. The defendant was convicted for two separate charges of second degree theft and one charge of first degree theft. The court imposed a sentence of two years' imprisonment and a fine of $15,000.00. The sentence was suspended on condition that defendant make restitution in the amount of $15,000.00 during the first two years of her five-year probationary period. The case was appealed to the Court of Criminal Appeals, which affirmed. After a thorough examination of the case, we agree with the Court of Criminal Appeals' finding that the trial court was correct in its assessment of restitution. The judgment of the Court of Criminal Appeals is, therefore, affirmed. In affirming, we deem it necessary to discuss what type of damages may be included in the restitution order. 358 The Code authorizes the trial court, as a condition of probation, to order the defendant to "[m]ake reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court...." Code 1975, § 15-22-52(8). The Code defines "restitution" as "[f]ull, partial or nominal payment of pecuniary damages to the victim or to its equivalent in services performed or work or labor done for the benefit of the victim as determined by the court of record," while also defining "pecuniary damages" as "[a]ll special damages which a person shall recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities...." Code 1975, § 15-18-66 (1982 Repl.Vol.). The Court of Criminal Appeals states that included in the concept of special damages is the right to receive punitive damages. This, however, is incorrect. The purpose of the above-cited statute, as announced by the legislature, is to ensure "... that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof...." (Emphasis added.) Code 1975, § 15-18-65 (1982 Repl.Vol.). These special damages, then, are based on the theory of compensation. In Birmingham Waterworks Co. v. Keiley, the Court of Appeals discussed the issue of damages, and stated: "Actual damages are recoverable at law, out of a wrongdoer by the injured party as a matter of right as compensation for the actual loss sustained by him by reason of such wrong. Punitive damages are damages over and above such sum as will compensate a person for his actual loss, and the law permits their imposition, in proper cases, at the discretion of the jury, not because the party injured is entitled to them as matter of right, but as punishment to the wrongdoer, and to deter him and others in similar businesses from such wrongdoing in the future." 2 Ala.App. 629, 637, 56 So. 838, 841 (1911), citing Oliver v. Columbia, N. & L. R.R. Co., 65 S.C. 1, 43 S.E. 307 (1902). The legislative intent of the restitution statute is to compensate, and not to punish. We, therefore, hold that the special damages that the victim is entitled to in this case are limited to an amount which fully compensates the victim, and these damages may not be punitive in nature. Having settled the question concerning what type of damages are allowable for restitution, we now focus on the main issue offered for our review in this case: whether the Court of Criminal Appeals erred in affirming the trial court's order of restitution. The general rule regarding the imposition of restitution has been that the amount awarded may not be larger than that involved in the indictment. United States v. Follette, 32 F.Supp. 953 (E.D.Pa. 1940). This language is based on a strict interpretation of the federal Probation Act. Code 1975, § 15-22-52(8), is similar to the federal statute, and has been relied upon for years as the controlling law on the subject in Alabama. We now, however, have a new statute which the legislature enacted to govern restitution in Alabama, 1980 Ala. Acts 80-588 (Codified at Code 1975, § 15-18-65 through § 15-18-77 (1982 Repl.Vol.)). This statute authorizes restitution to "fully compensate all victims of [criminal] conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof." Code 1975, § 15-18-65 (1982 Repl.Vol.). It is clear to us from this new enactment that it is the intent of the legislature that victims be fully compensated through restitution. The Act authorizes restitution by defendant for any "criminal activity" on his part against the victim. "Criminal activity" is defined as "[a]ny offense with respect to 359 which the defendant is convicted or any other criminal conduct admitted by the defendant." Code 1975, § 15-18-66 (1982 Repl.Vol.). In the case before us, the defendant admits that she embezzeled monies which rightfully belonged to her employer, in an amount greater than that stated in the indictment. By using Code 1975, § 15-22-52(8), together with new Code 1975, §§ 15-18-65 and -66, we find that defendant can be held accountable for an amount greater than that set out in the indictment. Defendant contends that the most she can be held to owe as restitution is $12,000.00, as this is the total amount that she admits to taking unlawfully from her employer. The State, however, produced evidence showing that the total amount taken by defendant was $31,500.00. The trial court allowed each side ample time to gather evidence pertaining to the amount in question. The court held a hearing, as authorized by Code 1975, § 15-18-67 (1982 Repl.Vol.), to determine the amount of restitution to be made. Neither side chose to call any witnesses. The court found, after listening to counsel, that the actual amount taken by defendant was $31,500.00. Defendant objects, stating that she can only be held accountable for the amount in excess of the indictment which she admits having stolen. We disagree. The statute allows restitution for any criminal activity for which there is a conviction or an admission by defendant. Defendant admits to engaging in activities concerning certain discounts and loans, but maintains that she is entitled to the proceeds therefrom. The court finds that these too are included in defendant's criminal activities. In order to follow the intent of the legislature and compensate the victim, the court set restitution at $15,000.00. We find no abuse of discretion in the trial court's holding, and agree with the judgment of the Court of Criminal Appeals. The Court of Criminal Appeals, in reaching its decision, relied on the case of Killough v. State, 434 So.2d 852 (Ala.1983). The issue in the Killough case centered around the defendant's agreeing to pay full restitution pursuant to a plea bargain. Since there was no evidence of a plea bargain in this case, we find that the Court of Criminal Appeals' reliance on Killough was misplaced. The State contends that the restitution issue was not preserved for appeal by defense counsel, because no objection was made, as is authorized by Code 1975, § 15-18-69 (1982 Repl.Vol.). We dismiss this argument because the nature of this particular restitution hearing did not allow for objections, as there was no testimony from witnesses. Defendant's counsel made known to the court his disagreement with the State concerning the amount of restitution, and this was enough in this instance to preserve the issue for review. The Court of Criminal Appeals, properly having the issue before it, was under a duty to render a decision thereon. Even though we do not agree with all the rationale used by the Court of Criminal Appeals in its opinion, we, nevertheless, based upon the above-stated reasons, affirm the judgment of the Court of Criminal Appeals. AFFIRMED. TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.	{ "pile_set_name": "FreeLaw" }
609 F.2d 501 22 Fair Empl.Prac.Cas. 62 Frinkv.U. S. Navy Pera (Crudes) No. 78-1203 United States Court of Appeals, Third Circuit 10/11/79 1 E.D.Pa. AFFIRMED	{ "pile_set_name": "FreeLaw" }
343 F.2d 466 Isao HITAI, also known as Mario Isao Hitai, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 358. Docket 29176. United States Court of Appeals Second Circuit. Argued March 5, 1965. Decided March 29, 1965. Francis L. Giordano, Brooklyn, N. Y., for petitioner. James G. Greilsheimer, Sp. Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, and Francis J. Lyons, Sp. Asst. U. S. Atty., New York City, of counsel), for respondent. Before MOORE, KAUFMAN and HAYS, Circuit Judges. HAYS, Circuit Judge. 1 Petitioner, a citizen of Brazil, was born in Brazil. His father, who is now dead, was a Brazilian citizen as is his mother who is still living. Both parents were, as the special inquiry officer found, "natives of Japan of the Japanese or Asiatic race." 2 Petitioner entered this country as a temporary visitor for pleasure on January 25, 1964, with permission to remain in that status until June 30, 1964. 3 In May 1964 the Immigration and Naturalization Service commenced deportation proceedings charging petitioner with having violated the terms of his permission to enter as a visitor by working as a hospital porter. At the hearing held pursuant to Section 242(b) of the Immigration and Nationality Act1 petitioner admitted that he had worked full time since February 17. The special inquiry officer found him deportable. Petitioner then applied for adjustment from the status of a "bona fide nonimmigrant" to that of "an alien lawfully admitted for permanent residence" under Section 245 (a) of the Act.2 The special inquiry officer denied the application on the ground that petitioner did not meet the requirement of Section 245(a) that "the alien [be] * * * eligible to receive an immigrant visa." Although as an "immigrant who was born in * * * an independent country of Central or South America," petitioner would otherwise be classified as a "nonquota immigrant,"3 the special inquiry officer assigned petitioner to the quota area for Japan because of Section 202(b) (4) of the Act. Under the terms of that section an 4 "immigrant born outside the Asia-Pacific triangle [defined by geographic boundaries including Japan] who is attributable by as much as one-half of his ancestry to a people or peoples indigenous to not more than one separate quota area, situate wholly within the Asia-Pacific triangle, shall be chargeable to the quota of that quota area * * "4 5 A visa is not available under the Japanese quota. 6 The Board of Immigration Appeals approved the special inquiry officer's decision, but, rather than ordering deportation, granted petitioner permission to depart voluntarily. 7 The Immigration and Naturalization Service concedes that this order is reviewable by this Court under Section 106(a) of the Act5 as interpreted in Foti v. Immigration and Naturalization Serv., 375 U.S. 217, 84 S.Ct. 306, 11 L. Ed.2d 286 (1963),6 and we concur. 8 Petitioner challenges the constitutionality of Section 202(b) (4) on the ground that it prescribes a standard which is arbitrary and unreasonably discriminatory. He argues that a law that discriminates betwen native-born Brazilians for the purpose of granting permanent residence in the United States, by assigning those Brazilians whose ancestry is attributable to certain "Asiatic races" to a quota area, which has a definite limit, and permitting other Brazilians whose ancestry is not so attributable to enter the United States as permanent residents without any quota area limit, violates the requirements of due process of law guaranteed by the Fifth Amendment and those standards of equal protection of the laws contained by implication in that amendment. 9 We are constrained to reject petitioner's claim that Section 202(b) (4) as here applied is unconstitutional. The exclusion and deportation of aliens pursuant to statute falls within that category of policy decisions, which, "so far as the subjects affected are concerned, are necessarily conclusive upon all * * [the government's] departments and officers," including "the judiciary." The Chinese Exclusion Case, 130 U.S. 581, 606, 9 S.Ct. 623, 630, 32 L.Ed. 1068 (1889). In Harisiades v. Shaughnessy, 342 U.S. 580, 588-589, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952), Mr. Justice Jackson said: 10 "[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." (Footnote omitted.) 11 See also Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893). 12 Petitioner also bases his argument on Article 55 of the United Nations Charter which provides for the promotion of "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." This provision of the Charter is not self-executing and therefore did not ex proprio vigore repeal or invalidate any of the laws, including the immigration laws, of the member states. Vlissidis v. Anadell, 262 F.2d 398 (7th Cir. 1959). Compare Sei Fujii v. State, 38 Cal.2d 718, 242 P.2d 617 (1952). 13 The petitioner makes no claim that he was not accorded a full hearing with adequate notice pursuant to Section 242 (b) nor that the statutes were misapplied or that the facts were incorrectly found in his case. Therefore the petition must be denied. 14 Denied. Notes: 1 66 Stat. 209 (1952), 8 U.S.C. § 1252 (b) (1958) 2 74 Stat. 505 (1960), 8 U.S.C. § 1255(a) (Supp. V, 1964) 3 § 101(a) (27) (C), 66 Stat. 169 (1952), 8 U.S.C. § 1101(a) (27) (C) (1958) 4 66 Stat. 177 (1952), 8 U.S.C. § 1152(b) (4) (1958) 5 75 Stat. 651 (1961), 8 U.S.C. § 1105a(a) (Supp. V, 1964) 6 See Talavera v. Pedersen, 334 F.2d 52 (6th Cir. 1964); Skiftos v. Immigration and Naturalization Serv., 332 F.2d 203 (7th Cir. 1964)	{ "pile_set_name": "FreeLaw" }
260 S.E.2d 427 (1979) 298 N.C. 783 STATE of North Carolina v. Willie SAMUELS. No. 80. Supreme Court of North Carolina. December 4, 1979. 429 Asst. Public Defender Tom Dickinson and Public Defender Fritz Y. Mercer, Jr., Charlotte, for defendant. Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Marilyn R. Rich, Raleigh, for the State. COPELAND, Justice. The record on appeal contains three exceptions, properly made, which are the basis of three assignments of error, properly set out at the end of the record. These assignments of error were not brought forward or discussed in the brief; therefore, they are deemed abandoned. Rule 28(a), (b)(3), Rules of Appellate Procedure; State v. Davis, 272 N.C. 469, 158 S.E.2d 630 (1968); State v. Battle, 271 N.C. 594, 157 S.E.2d 14 (1967) (per curiam); State v. Strickland, 254 N.C. 658, 119 S.E.2d 781 (1961). These cases arose under former Rule 28, Rules of Practice in the Supreme Court; however, our present Rule 28 maintains the same rule as former Rule 28 with respect to requiring that the assignments of error be brought forward and discussed in the brief in order to properly present questions for review on appeal. Defense counsel set forth one Question Presented in his brief. In it he stated that his examination of the record revealed no error prejudicial to the defendant. He has asked us to examine the entire record to determine whether we find prejudicial error warranting a new trial. This question presented in the brief was not made the basis of any assignment of error. Normally, this Court will not consider questions not properly presented by objections duly made, exceptions duly entered, and assignments of error properly set out. State v. Brooks, 275 N.C. 175, 166 S.E.2d 70 (1969); 1 Strong's N.C. Index 3d, Appeal and Error § 24. Under our former Rules of Practice in the Supreme Court, the appeal itself constituted an exception to the judgment and presented for review any error appearing on the face of the record proper. State v. Cox, 281 N.C. 131, 187 S.E.2d 785 (1972); State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970). Our present Rules of Appellate Procedure, effective 1 July 1975, obliterated the former distinction between the "record proper" and the "settled case on appeal." Instead, the single concept of "record on appeal" is used and the composition of the record on appeal is governed by Rule 9(b), Rules of Appellate 430 Procedure. State v. McMorris, 290 N.C. 286, 225 S.E.2d 553 (1976); State v. Adams, 298 N.C. 802, 260 S.E.2d 431 (1979). However, our present Rule 10(a), Rules of Appellate Procedure, does provide that, "[U]pon any appeal duly taken from a final judgment any party to the appeal may present for review, by properly raising them in his brief, the questions whether the judgment is supported by the verdict or by the findings of fact and conclusions of law, whether the court had jurisdiction of the subject matter, and whether a criminal charge is sufficient in law, notwithstanding the absence of exceptions or assignments of error in the record on appeal." (Emphasis added.) Also, G.S. 15-173 allows a defendant to appeal the denial of his motion for nonsuit made at the close of the State's evidence (if the defendant presents no evidence) or made at the close of all the evidence (if the defendant does present evidence), "without the necessity of the defendant's having taken exception to such denial." Therefore, it is clear that a defendant may properly present on appeal the questions enumerated in Rule 10(a), without taking any exceptions or making any assignments of error in the record and may properly present for review the denial of his motion for nonsuit under G.S. 15-173 without making any exception in the record. However, in both these situations, the defendant must still bring those questions forward in his brief, argue them and cite authorities in support of his arguments. Rule 28(a), (b)(3). Failure to do so means that those questions are not properly presented for review. Rule 28(a), (b)(3); State v. McMorris, supra; State v. Adams, supra. Indeed, Rule 10(a) states that the questions enumerated there may be properly presented for review without exceptions or assignments of error being made "by properly raising them in his brief." Rule 28(a), (b)(3) then elaborates on the requirements of the brief in this regard as discussed above. We have the power under Rule 2, Rules of Appellate Procedure, to suspend or vary the requirements of the Rules of Appellate Procedure in order "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest . . . except as otherwise expressly provided by these rules" and Rule 28(a), (b)(3) does not expressly provide otherwise. From the foregoing, it is clear that no questions have properly been presented for review in this case. Nevertheless, due to the seriousness of the conviction and the sentence in this case, we have elected, pursuant to our inherent authority and Rule 2, to review the record on appeal with regard to the sufficiency of the evidence to take the case to the jury and the questions presented by Rule 10(a) and we find no prejudicial error. Furthermore, we have scrutinized the entire record on appeal to determine whether any error prejudicial to the defendant occurred in this trial. There was sufficient evidence of every essential element of the crime of first degree rape to take this case to the jury. One essential element of the crime of first degree rape is that defendant be more than sixteen years of age. G.S. 14-21(1)b. Here, the jury had ample opportunity to view the defendant and estimate his age. See, State v. Evans, 298 N.C. 263, 258 S.E.2d 354 (1979). The trial judge properly conducted this trial, made no erroneous evidentiary rulings, properly conducted the voir dire on the pretrial identification procedures and the in-court identification, and correctly charged the jury. Our examination of the record reveals no prejudicial error. We caution members of the bar to recognize that, "[i]t is not the function of the appellate courts to search out possible errors which may be prejudicial to an appellant; it is an appellant's duty, acting within the rules of practice, to point out to the appellate court the precise error of which he complains." Nye v. University Development Co., 10 N.C.App. 676, 678, 179 S.E.2d 795, 796, cert. denied, 278 N.C. 702, 181 S.E.2d 603 (1971). Appeals such as this are subject to dismissal for failure to properly present any questions for review under the *431 requirements of Rule 28(a), (b)(3), unless we elect pursuant to Rule 2, as we have done in this case, to suspend or vary the requirements of the Rules of Appellate Procedure. NO ERROR.	{ "pile_set_name": "FreeLaw" }
965 So.2d 1146 (2007) RUSSELL v. DAVID. No. 1D07-0287. District Court of Appeal of Florida, First District. September 27, 2007. Decision without published opinion. Cert. denied.	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-18-00060-CV MARK SCHOMBURG, Appellant V. GERMANIA INSURANCE AND KAKER AGENCY, LLP, Appellees On Appeal from the 271st District Court Wise County, Texas Trial Court No. CV18-03-244 Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Mark Schomburg filed a timely notice of appeal on June 28, 2018, of this case arising from Wise County, Texas. 1 The clerk’s record was filed July 30, 2018, and the reporter’s record was filed on August 3, 2018. The original deadline for Schomburg’s appellate brief was September 4, 2018. When neither a brief nor a motion to extend time for filing same was received by September 4, 2018, this Court advised Schomburg by letter dated September 20, 2018, that the brief was late. We further extended the deadline for filing the brief to October 5, 2018. We warned Schomburg that failure to file the brief by October 5, 2018, would subject this appeal to dismissal for want of prosecution. See TEX. R. APP. P. 38.8(a)(1), 42.3(b), (c). We have received no responsive communication from Schomburg and have not received his appellate brief. Having not received any response to this Court’s letter of September 20, 2018, Schomburg’s appeal is ripe for dismissal for want of prosecution. Consequently, pursuant to Rules 38.8 and 42.3 of the Texas Rules of Appellate Procedure, we dismiss this appeal for want of prosecution. See TEX. R. APP. P. 38.8(a)(1), 42.3(b), (c). Josh R. Morriss, III Chief Justice Date Submitted: November 8, 2018 Date Decided: November 9, 2018 1 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. 2	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs January 25, 2005 STATE OF TENNESSEE v. REBECCA G. RATLIFF Appeal from the Criminal Court for Sullivan County No. S47,686 R. Jerry Beck, Judge No. E2004-00940-CCA-R3-CD - Filed March 15, 2005 The defendant, Rebecca G. Ratliff, appeals from the Sullivan County Criminal Court’s revocation of her probation. On appeal, the defendant claims that the trial court erred in ordering her to serve her original two-year sentence in the Department of Correction. Because the record supports the trial court in its discretionary determination to order incarceration, we affirm. Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed. JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA MCGEE OGLE, J., joined. Mark H. Toohey, Kingsport, Tennessee, for the Appellant, Rebecca G. Ratliff. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James Goodwin and B. Todd Martin, Assistant District Attorneys General, for the Appellee, State of Tennessee. OPINION On July 30, 1999, the defendant was convicted of attempt to pass a worthless check, a Class E felony. Her two-year sentence was suspended but was imposed to run consecutively to a sentence in a previous case. Based upon the consecutive alignment of sentences, the probationary period in the present case was due to expire on June 16, 2003. On January 25, 2002, the state issued a violation of probation report based upon the defendant’s October 19, 2001 Virginia convictions of uttering bad checks. The resulting warrant was not served on the defendant until March 2003. On April 15, 2004, the trial court conducted a revocation hearing. The defendant admitted that she had violated the terms of her probation. She testified that she had three children, ages 10, three years, and 16 months. She stated that, except for her Virginia offenses and convictions, she had complied with all other terms of her probation. She testified that the Virginia offenses resulted from her discontinuing her medications for bipolar disorder. She had been taking lithium and Panax and was on hiatus from the medications pursuant to her doctor’s order due to her pregnancy. She testified that when she wrote the two bad checks in Virginia, she was having financial difficulty and used the proceeds from the checks to buy groceries and pay utility bills. Her mother paid the two checks in Virginia, and the defendant served six months on probation. The defendant testified that her 16-month-old son was born with a hole in his heart. He had been hospitalized numerous times, the most recent hospitalization resulting from severe dehydration following a viral episode. The defendant testified that the child was unable to walk and underwent physical therapy once a week. She testified that her fiancee works a night shift and that she is the only person available to care for her children. The trial court acknowledged that the defendant had a long history of medical or psychological problems, including bipolar disorder and depression. The court also recognized that the defendant had a long history of credit-related offenses, including four felonies in Sullivan County and bad check misdemeanors in Virginia prior to the 2001 convictions in that commonwealth. The judge stated, “[I]n this type of offense, the court is reluctant to incarcerate somebody, . . . but there can be a certain point reached where the integrity of the [c]ourts . . . reach a limit of how many times you can be put on [p]robation . . . .” The judge concluded that the succession of probations had “just run out of reason and that even though mitigation factors were present, the mitigation was recycled.” On April 21, 2004, the trial court ordered revocation of the defendant’s probation based upon the Virginia convictions and ordered the defendant to serve her two-year sentence in the Department of Correction. The defendant filed a timely notice of appeal. On appeal, the defendant claims that the trial court erred in ordering her to serve her sentence in confinement. We disagree. The standard of review upon appeal of an order revoking probation is abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order for an abuse of discretion to occur, the reviewing court must find that the record contains no substantial evidence to support the conclusion of the trial judge that a violation of the terms of probation has occurred. Id. The trial court is required only to find that the violation of probation occurred by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311(e) (2003). Upon finding a violation, the trial court is vested with the statutory authority to “revoke probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally entered.” Id. Furthermore, when probation is revoked, “the original judgment so rendered by the trial judge shall be in full force and effect from the date of the revocation of such suspension.” Id. § 40-35-310. Thus, the trial judge retains the discretionary authority to order the defendant to serve the original sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995). -2- In this case, the trial judge expressed sympathy for the defendant’s plight, but he cited apt, substantial bases for ordering her sentence served in confinement. The judge was concerned not only that the defendant had amassed a long record of bad check or credit-related offenses, but also that she had received probation repeatedly. The court concluded that it could no longer nod to her lawless behavior, and the record supports this conclusion. The defendant has not shown that the trial court abused its discretion in ordering her to serve her two-year sentence. Accordingly, the order of the trial court is affirmed. ___________________________________ JAMES CURWOOD WITT, JR,. JUDGE -3-	{ "pile_set_name": "FreeLaw" }
241 Cal.App.2d 440 (1966) 50 Cal. Rptr. 615 ALVIN E. CLAUSON, Plaintiff, Cross-defendant and Respondent, v. INDUSTRIAL INDEMNITY COMPANY, Defendant, Cross-complainant and Appellant; CALIFORNIA COMPENSATION & FIRE COMPANY et al., Cross-defendants and Respondents. Docket No. 11086. Court of Appeals of California, Third District. April 11, 1966. 441 Long & Levit, Bert W. Levit, Victor B. Levit, John B. Hoak and Gregory Archbald for Defendant, Cross-complainant and Appellant. Cooley, Crowley, Gaither, Godward, Castro & Huddleson, Thomas Hartwell, Leonard & Lyde and Raymond A. Leonard for Plaintiff, Cross-defendant and Respondent, and for Cross-defendants and Respondents. PIERCE, P.J. This appeal is by defendant and cross-complainant Industrial Indemnity Company (Industrial) from a judgment which holds Industrial solely liable to plaintiff for the latter's furniture store fire loss in the sum of $52,456.69. Liability was based upon an oral binder held to have been in effect at the time of the fire. A previous fire insurance policy covering the premises, written by cross-defendant California 442 Compensation & Fire Company (Cal Comp), was specially found by the jury to have been terminated and judgment was for that company. The court directed a verdict (which was returned and judgment entered thereon) in favor of cross-defendant Bryon Erdmann, the insurance broker who acted as agent for plaintiff (the insured) for both insurers. We disallow contentions (1) that the trial court improperly directed a verdict for Erdmann (2) that erroneous instructions regarding misrepresentation and concealment were given, (3) that Industrial was improperly nonsuited on the second cause of action of its cross-complaint, (4) that Industrial's binder had expired, and (5) that Cal Comp's policy had not been terminated. The facts are not complicated. Plaintiff Clauson owned a furniture store in Paradise, Butte County. Erdmann, an insurance broker, handled all of his insurance. Through Erdmann a standard commercial block policy of fire insurance was obtained with Cal Comp as insurer. The term for which it was written was from May 17, 1961, to May 17, 1964. Premiums fluctuated, being based upon reported inventory values. In December 1961 the coverage was $60,000. On December 19, 1961, plaintiff through Nelson, his son-in-law and store manager, asked Erdmann to investigate the possibility of obtaining a "package" policy which would include coverage of loss through business interruption after a fire. That coverage was not included in Cal Comp's policy. During the same phone call he told Erdmann the store inventory had risen and he desired that coverage be increased from $60,000 to $90,000. Erdmann replied that he was "bound" (i.e., covered) for the increased amount. An endorsement was sent to Clauson and Cal Comp was advised. On December 28, 1961, a representative of Cal Comp telephoned Erdmann's office, stating to one of the latter's employees that the insurer felt that $90,000 would be in excess of its "capacity"[1] for this particular risk and that it wished the coverage to be placed with another company. To give Erdmann an opportunity to obtain other insurance Cal Comp advised it would remain bound until January 8, 1962. Also stated was the insurer's willingness to take half of the desired coverage if another company would assume the other half. 443 On January 5, 1962, Erdmann, who had an agency agreement with Industrial, and who had been advised that that company wrote a "package" policy which included both the coverage in Clauson's existing policy and also the business interruption coverage which Clauson desired, phoned Timmermans in Sacramento. Timmermans is the "Property Lines Manager of the Sacramento Division" of Industrial, a position in which underwriting fire insurance coverage is his primary responsibility. All negotiations with Industrial were through Timmermans, and it is conceded he had full authority to act for and bind that company. Two telephone conversations were held between Erdmann and Timmermans that day. We state Timmermans' version: The first conversation was confined to a confirmation by him that his company did write a "package" policy of the type sought, and a statement by Erdmann of the premises sought to be covered. An appointment with Erdmann at the latter's office in Paradise was made for the following Thursday. There was a second conversation later that day. Between calls Timmermans consulted the rate book of the Pacific Fire Rating Bureau. From that authority he learned that although the City of Paradise had just been rerated "better" because of improved fire protection, Clauson's furniture store's rate had actually been increased rather than decreased. Twenty minutes after the first conversation Erdmann phoned again. He told Timmermans that he had discovered that the existing Clauson policy would "expire" on January 8, and since Timmermans' visit was not scheduled until after that date, he asked if Industrial would bind the risk from the 8th. Timmermans at first demurred upon the basis of the discovered increased rating of these premises but finally agreed to a temporary binder pending an investigation. On January 11 Timmermans and his associate, Richard Holmes, went to Paradise and examined the property. Holmes was a special agent of the underwriting department of Industrial. The two inspected the building. Erdmann joined them. Timmermans had noted that from four to six frame buildings adjoined the Clauson premises and said that additional hazards were presented thereby. He also pointed out defective wiring in Clauson's store which was visible. He told Erdmann Industrial would not be interested in writing a "package" policy. He did not then refuse a standard policy for $90,000. Nor did he cancel or give notice of cancellation of the binder. On the contrary, he told Erdmann: "We will keep this bound 444 for you as agreed to in our original temporary binder until such time as I can get a copy of the survey as originally agreed upon." The two representatives of Industrial returned to Sacramento where Timmermans sought the survey of the Pacific Fire Rating Bureau. It was made available to him on the following Tuesday, January 16. As a result of facts determined by this survey, Timmermans that same day wrote a memorandum to Erdmann. In it he asked that Industrial's coverage be "replaced." This memorandum was received by Erdmann on January 18. The fire occurred at 10:30 p.m. that night. No replacement of coverage had been obtained before the fire. Meanwhile, on December 29, 1961, Erdmann had sent a memorandum to Cal Comp acknowledging that the latter would be bound under its policy only until January 8, 1962, upon which date that insurer's liability would cease and the policy would be picked up and sent in for a pro rata cancellation. On January 15, 1962, Cal Comp wrote Erdmann, asking why its policy had not been returned and asking when it might expect to receive it. On January 17 Erdmann replied that the insured was presently bound with another company; that there was a possibility, however, that that company might wish to avail itself of Cal Comp's previously expressed willingness to divide the coverage. Erdmann stated Cal Comp would be advised shortly. Re: The Contention that Erdmann Misrepresented or Concealed a Material Fact. Although as originally pleaded and even when the trial began, Industrial's position had been that Erdmann and Clauson had intentionally, wilfully and fraudulently concealed from Industrial the existence of fire hazards known to them and unknown to Industrial all contentions based upon intentional fraud were abandoned during the trial. Then and now Industrial relies solely upon Erdmann's misuse of the word "expire" in his conversation with Timmermans on January 5. It relies upon this (1) as entitling Industrial to have the question of Erdmann's liability go to the jury, (2) as causing error when the court instructed the jury that "one cannot be guilty of fraudulent concealment of that of which he has no knowledge," and (3) as constituting error when the court granted a nonsuit on Industrial's second cause of action which alleged that Clauson and Cal Comp had misrepresented that the latter's policy was "expiring." *445 [1] The evidence showed that there is a distinction in the parlance of insurance men between an "expiration" of an insurance policy and its cancellation of other termination. "Expiration" means that the policy has reached the end of the term for which it was written. A policy may also be terminated by either party upon a prescribed statutory notice or by mutual agreement. [2a] Erdmann testified that in his conversation of January 5 with Timmermans he told the latter that the existing coverage was "ceasing." (Cal Comp's representative had actually characterized that company's action as "retiring from the risk.") Since the court directed a verdict, we, as a reviewing court, must assume the jury, had it been permitted to, would have accepted Timmermans' testimony that Erdmann told him the existing coverage was "expiring." If this was a misstatement material to Industrial's assumption of the risk, then at least in connection with Industrial's first contention we would have to find error in the trial court's direction of a verdict in Erdmann's favor. [3] Erdmann was Industrial's agent and therefore had the status of a fiduciary towards it with a duty of good faith and loyalty (see 2 Cal.Jur.2d, Agency, § 104, p	{ "pile_set_name": "FreeLaw" }
406 Pa. Superior Ct. 513 (1991) 594 A.2d 737 Jeremiah ANDERSON and Linda Anderson, his Wife v. CENTENNIAL HOMES, INC., Appellant. Superior Court of Pennsylvania. Submitted May 9, 1991. Filed August 7, 1991. 515 Michael R. Mey, Wilkes-Barre, for appellant. Steven D. Gladstone, Tannersville, for appellees. Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ. CIRILLO, Judge: Centennial Homes, Inc. ("Centennial") appeals from an order entered in the Monroe County Court of Common Pleas denying its motion to reinstate its appeal and denying its motion to open a default judgment. We affirm. On July 17, 1989, Jeremiah and Linda Anderson filed an action against Centennial before District Justice Charles P. Eyer. In their complaint, the Andersons claimed that Centennial wrongfully removed trees from their property. A hearing was scheduled for September 1, 1989 at which time judgment was entered against Centennial for failure to appear. See Pa.R.C.P.D.J. 319 B. On September 12, 1989, Centennial filed a notice of appeal to the Monroe County Court of Common Pleas. On September 19, 1989, notice of Centennial's appeal and rule to file complaint was served upon the district justice and the Andersons. It is unclear from the record if proof of service of the copies of the 516 notice of appeal and rule to file complaint was ever filed with the Monroe County Prothonotary. In any event, on October 3, 1989, Centennial's appeal was stricken for failure to comply with Pennsylvania Rule of Civil Procedure for District Justices 1005B. See Pa.R.C.P.D.J. 1006.[1] Centennial thereafter filed a motion to open judgment or reinstate the appeal. The trial court denied both motions and this timely appeal followed.[2] On appeal, Centennial raises the following issue: Is the Appellant entitled to have the Judgment entered against it opened and/or have its appeal reinstated? Centennial argues that although it did not technically comply with Pa.R.C.P.D.J. 1005 B, since the Andersons did receive actual notice of Centennial's appeal to the court of common pleas and because the Andersons suffered no prejudice, its appeal should be reinstated. Centennial reminds us that Pennsylvania Rule of Civil Procedure 126 allows the trial courts to disregard "any defect or rule of procedure which does not affect the substantial rights of the parties." Pa.R.C.P. 126. Centennial concedes that it did not comply with Pa.R.C.P.D.J. 1005 B. Namely, Centennial did not file proof of service of copies of its notice of appeal and rule to file a complaint with the prothonotary of Monroe County within five days after filing its notice of appeal. At the Andersons' request and pursuant to Pa.R.C.P.D.J. 1006, Centennial's appeal was stricken for failure to comply with rule 1005 B. Pa.R.C.P.D.J. 1006, however, provides that the "court of common pleas may reinstate the appeal upon good cause shown." Pa.R.C.P.D.J. 1006 (emphasis added). 517 "Good cause" is not defined in the rules governing district justice proceedings. Black's Law Dictionary defines good cause as a [s]ubstantial reason, one that affords a legal excuse. Legally sufficient ground or reason. Phrase "good cause" depends upon circumstances of individual case, and finding of its existence lies largely in discretion of officer or court to which decision is committed. . . . "Good cause" is a relative and highly abstract term, and its meaning must be determined not only by verbal context of statute in which term is employed but also by context of action and procedures involved in type of case presented. . . . Black's Law Dictionary 623 (5th ed. 1979) (emphasis original citations omitted). While the term good cause may be difficult to define, it is clear that Centennial must proffer some legally sufficient reason for the trial court to reinstate its appeal. We also emphasize that the determination of whether good cause has been demonstrated is trusted to the trial court's sound discretion. See State Farm Insurance Companies v. Swantner, 406 Pa.Super. 235, 594 A.2d 316 (1991) (en banc) (giving trial court's broad discretion to determine whether good cause has been demonstrated to compel an insured to submit to an independent medical examination). Centennial, however, offered no explanation to the trial court, or to this court, for its failure to file proof of service of copies of its notice of appeal and rule to file complaint within five days after filing its notice of appeal. Clearly, in attempting to demonstrate good cause for reinstating an appeal, Centennial should explain its reasons, if any, for failing to comply with the provisions which caused the appeal to be stricken. Centennial, rather than attempting to explain its reasons for not complying with rule 1005B, merely claims that since it acted as diligently as possible under the circumstances and since the Andersons' rights were not substantially affected by its noncompliance, its appeal should be reinstated. 518 Rule 1006 is discretionary with the trial court and is intended to provide sanctions for failing to act within the prescribed time limits of the relevant rules of procedure. Pa.R.C.P.D.J. 1006, note. Pa.R.C.P. 126, which allows the trial court to disregard procedural errors which do not substantially affect the rights of the parties, is likewise discretionary with the trial court. We remind Centennial that while the trial court may ignore procedural noncompliance, it is not required to do so. See Pa.R.C.P. 126. Here, Centennial, without an explanation, failed to comply with rule 1005 B. We find that simply stating that the instant noncompliance did not substantially affect the rights of the Andersons is not alone sufficient to demonstrate good cause to reinstate the appeal. In short, we cannot find that under the circumstances the trial court abused its discretion when it refused to reinstate Centennial's appeal. Cf. Friedman v. Lubecki, 362 Pa.Super. 499, 524 A.2d 987 (1987) (discussing good cause for failure to comply with Pa.R.C.P.D.J. 1004 A); Quarato v. Facelifters, 305 Pa.Super. 536, 451 A.2d 777 (1982) (appeal reinstated where appellants essentially complied with Pa.R.C.P.D.J. 1005 B, but failed to attach sender's receipt to affidavit as required by Pa. R.C.P.D.J. 1001). See also 25 Standard Pennsylvania Practice 2d § 130:166 (1984) ("An appeal from a decision of a district justice which has been stricken should be reinstated only under exceptional circumstances"). Centennial also claims that the trial court erred in refusing to open the default judgment entered by the district justice. This argument, however, is misplaced. A petition to open a default judgment is initially presented to the court which entered the default judgment. See Deviney v. Lynch, 372 Pa. 570, 94 A.2d 578 (1953); Lance v. Mann, 360 Pa. 26, 60 A.2d 35 (1948); see also 12 Standard Pennsylvania Practice § 71:39 (1983) (unless otherwise provided by statute, it is not within the power of one court to open the judgment of another court). As such, a petition to open judgment is an appeal to that court's equitable powers. Hanna v. Dey Computer Systems, Inc., 386 Pa.Super. 8, *519 562 A.2d 327, 328 (1989). Here, the default judgment was entered by the district justice when Centennial failed to appear. See Pa.R.C.P.D.J. 319 B. This judgment was appealed to the Monroe County Court of Common Pleas. A properly executed appeal to a court of common pleas permits a de novo proceeding and, unless the judgment is for the possession of real property, operates as an automatic supersedeas. Pa.R.C.P.D.J. 1008, 1008 B. See 25 Standard Pennsylvania Practice § 130:167 (1984). Consequently, it would seem needless to file a petition to open judgment entered by a district justice when an appeal from that judgment to the court of common pleas results in a de novo proceeding that stays the previous judgment. Moreover, the relevant rules of procedure governing district justice proceedings do not provide for motions to reconsider judgments entered. See Pa.R.C.P.D.J. 1 et seq. Appealing the district justice judgment to the relevant court of common pleas, not asking the district justice to reconsider its ruling, is the proper method of obtaining review of the judgment. Again, since a properly executed appeal from a judgment entered by a district justice results in a de novo proceeding in the court of common pleas, such motions for reconsideration would be superfluous. Clearly, since the case is tried de novo in the court of common pleas, the effect of reinstating Centennial's appeal to the court of common pleas is to suspend the effect of the default judgment entered by the district justice. See Pa.R.C.P.D.J. 1007. Unfortunately, Centennial failed to perfect its right to appeal the district justice judgment, and has failed to demonstrate that the	{ "pile_set_name": "FreeLaw" }
J-A19023-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 C.S. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. B.M. Appellant No. 2053 WDA 2014 Appeal from the Order Entered November 24, 2014 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD01-08702-004 BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J. MEMORANDUM BY JENKINS, J.: FILED OCTOBER 05, 2015 D.M. (“Mother”) appeals from the November 21, 2014 order entered in the Allegheny County Court of Common Pleas granting C.S. (“Father”) primary physical and legal custody of Daughter and primary physical custody and sole legal custody regarding school decisions of Son.1 We affirm. The trial court set forth the following history: The parties are parents to two children, Daughter A.S. (DOB [12/1998]) and Son C.T.S. (DOB [9/2000]). Litigation on issues of custody began in 2001 and has continued at a fairly regular pace.2 The parties divorced in 2004, and both have subsequently remarried. Father and Ca.S. (hereinafter “Stepmother”) have a seven-year-old son, S.S., who is a half-brother to the children. Mother has no other children with her current husband, T.M. (hereinafter “Stepfather.”) The relevant history of the present custody dispute began roughly in 2012, when ____________________________________________ 1 Father chose to not submit an appellate brief. J-A19023-15 Mother became the primary physical custodian of the parties’ minor children. Daughter was 13, and Son was 11. Daughter testified that there was a great deal of tension when she lived with her [m]other. Son apparently did not have such conflict with Mother. Both children struggled in school. Son repeated the sixth grade. The tension between Daughter and Mother continued to the point where Daughter began hurting herself. The self- harm culminated with her suicide attempt in April 2013. Thereafter, Daughter had made it known that she was victim of Mother’s half-brother’s sexual abuse. 2 The extensive docket is a graphic representation of the acrimony between the parents. In April 2013, [the trial c]ourt granted Father interim physical and legal custody of Daughter. Father petitioned the [c]ourt to modify custody. Continuations and disagreements regarding psychological evaluations extended litigation. The matter was finally heard on October 24, 2014. The trial was then extended over the course of three more dates: October 28, 2014, to November 13, 2014 and ended on November 20, 2014. On November 20, 2014, after four days[’] worth of testimony, [the trial c]ourt announced its decision from the bench and discussed its findings on the record. See T4, at 137-164. That discussion included the [c]ourt’s findings per the custody factors enumerated in 23 Pa.C.S.A. §5328(a). The [c]ourt memorialized its decision by way of the November 21, 2014 [o]rder of [c]ourt, which provoked the subject appeal. 1925(a) Opinion (“Opinion”), 2/3/2015, at 1-2. The custody order provides, in relevant part: AND NOW, this 21st day of November, 2014, after four days of trial on October 24, 2014, October 28, 2014, November 13, 2014 and November 20, 2014 to consider Plaintiff’s Petition to Modify Custody and Defendant’s Petition for Special Relief with [Father] having appeared with counsel and [Mother] having appeared with counsel, it is hereby ORDERED, ADJUDGED, and DECREED as follows: -2- J-A19023-15 1. Custody of [Daughter]: Father shall have primary physical and legal custody of the minor [Daughter]. 2. Mother and [Daughter] shall participate in reunification therapy. a. Mother shall select and schedule therapy every other week with [Daughter]. Such therapist shall have an office within 10 miles of Father’s home. Mother shall schedule the therapy after school or on weekends and not schedule the therapy on days where [Daughter] has an activity. i. For every therapy session, Mother and Father shall share equally the co-pay with the therapist. Father shall send his share of the co-pay with [Daughter]. If [M]other selects a therapist who requires co-pay in excess of a total of Twenty Dollars ($20.00), Mother shall pay the remaining balance of the excess co- pay. ii. Mother shall pick up and drop off [Daughter] at Father’s home if [Daughter] agrees. Alternatively, Mother may arrange for and pay for a taxi service to take [Daughter] from Father’s house to the therapist and Father shall pick [Daughter] up from the therapist after the session. Father and [Stepmother] shall remain in the home or in the car during the exchange and shall not communicate in any way with Mother at the exchange. iii. Both parents shall be present and attend the therapy sessions only as specifically directed by the therapist in advance of the appointment. b. If Mother and [Daughter] would like to have visits outside of the therapeutic visits, these visits can be discussed and scheduled within the therapeutic setting, and memorialized in writing between [Daughter] and Mother. c. Father shall respect such written arrangements including overnights and weekends at Mother’s home if [Daughter] agrees. d. These scheduled visits shall respect [Daughter’s] already existing obligations and activities. -3- J-A19023-15 e. Father shall send a written calendar to each therapeutic appointment containing any very significant family events that would create conflicts that would preclude [Daughter] from scheduling a visit with her mother in the upcoming month. f. Mother shall provide all transportation for these visits with [Daughter]. 3. Custody of [Son]: Father shall have primary physical custody of [Son]. Father shall have sole legal custody with regards to making school choices for [Son]. Mother and Father shall share legal custody regarding all other issues. a. [Son’s] School Year: Father shall have custody of [Son] during the school year. This schedule shall begin after Christmas on December 31, 2014 at noon through that week and the weekend that follows. Mother shall have every other weekend thereafter beginning Friday after school, when Mother picks [Son] up at school until Monday morning before school when Mother shall drop [Son] off at school. b. [Son’s] Summer Vacation: Mother shall have custody of [Son] primarily during the summer vacation from school. Mother’s schedule with [Son] shall begin the first Friday after the last day of school until the Friday of the following week at 4:00 p.m. when Father’s weekend shall begin. Then Father shall have every other weekend during the summer beginning Friday at 4:00 p.m. until Monday morning before Father starts work when he will drop [Son] off at Mother’s home. Father shall pick up and drop off [Son] from Mother’s home and remain in his car during the exchange and shall not communicate in any way with Mother at the exchange. ... Order, 11/21/2014. Mother filed a timely notice of appeal and statement of matters complained of on appeal. The trial court filed an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925. -4- J-A19023-15 At argument before this Court on July 7, 2015, it became apparent that proceedings subsequent to the November 21, 2014 custody order had occurred in the trial court, which potentially impacted the custody order. On August 11, 2015, this Court remanded to the trial court to supplement the record or conduct additional hearings as necessary.2 On August 20, 2015,	{ "pile_set_name": "FreeLaw" }
44 F.3d 1006 U.S.v.Blackburn (Charles Everett) NO. 94-40511 United States Court of Appeals,Fifth Circuit. Dec 30, 1994 E.D.Tex., 42 F.3d 640 1 DENIALS OF REHEARING EN BANC.	{ "pile_set_name": "FreeLaw" }
171 So.2d 109 (1965) Otilla SHIVERS v. Barto SHIVERS. 3 Div. 135. Supreme Court of Alabama. January 21, 1965. Fred D. Gray, Montgomery, for appellant. Heirston L. Foster, and John T. Batten, Montgomery, for appellee. SIMPSON, Justice. Appeal from a decree of the Circuit Court of Montgomery County, In Equity, Domestic Relations Division, finding that appellant (wife) was not entitled to relief on her cross-bill for divorce a mensa et thoro and awarding her monthly payments of ten dollars and granting appellee a divorce a vinculo matrimonii. The evidence tended to show that the parties were married to each other in 1915 and lived together as man and wife until the year 1936, at which time they separated. Appellant's proof tended to show that the separation occurred due to no fault of hers. Appellee's proof tended to show that the separation occurred due to appellant's fighting him, hitting him with a hammer, fists, and threatening him with a pistol. Appellant and appellee have been separated for some twenty-eight years and have not lived together since the separation. Appellee is sixty-eight years old, is a veteran of World War I, and is now retired from the Louisville and Nashville Railroad and drawing a retirement check. He has to make frequent trips to a physician and his medical bills run from $9.00 to $25.50 every two weeks. Appellant lives in Madras, Georgia, where she has resided for three years before the suit was filed. She has been living in the State of Georgia for the past thirteen years. Appellant first argues that the lower court erred in refusing relief on the cross bill based upon abandonment for two years without support from the husband, under § 22, Tit. 34, Code of Ala. 1940, as amended, which provides in part as follows: "* * * In favor of the wife when the wife has lived, or shall have *110 lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the bill; and she has bona fide resided in this state during said period." The evidence is uncontradicted that appellant has not lived or resided in Alabama for the period of two years next preceding the filing of the cross bill, but to the contrary that she has resided in the State of Georgia for the past thirteen years. She could not therefore invoke the provisions of § 22, Tit. 34, supra. The case below was taken under consideration by the lower court on the oral testimony of the witnesses and it has long been the rule in this Court that the lower court's finding of fact is presumptively correct and will not be disturbed on appeal unless plainly or palpably wrong, or against the great weight of the evidence. Barry v. Thomas, 273 Ala. 527, 142 So.2d 918; King v. King, 269 Ala. 468, 114 So.2d 145; Wilfe v. Waller, 263 Ala. 110, 81 So.2d 614; Puckett v. Puckett, 240 Ala. 607, 200 So. 420. We are not prepared to conclude that the lower court plainly or palpably erred in its award to appellant or that its decree was against the great weight of the evidence, or that any error was committed in granting appellee a divorce a vinculo matrimonii. It would appear to the impartial mind, from the attendant circumstances adduced by appellee's attorneys, that appellant's motivations in contesting appellee's suit for divorce was probably that she desired to have appellee's veteran's benefits and his railroad retirement benefits after his death. Under these and other facts adduced we fail to see any error committed by the lower court. Affirmed. LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.	{ "pile_set_name": "FreeLaw" }
176 Ariz. 118 (1993) 859 P.2d 741 STATE of Arizona, Appellee, v. John Thomas ROMANOSKY, Appellant. No. CR-90-0105-AP. Supreme Court of Arizona, En Banc. October 5, 1993. Grant Woods, Atty. Gen., Phoenix, by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, for appellee. Neal W. Bassett, Phoenix, for appellant. OPINION MOELLER, Vice Chief Justice. STATEMENT OF THE CASE At trial, the state's theory was that defendant and two accomplices robbed the victim and his wife in their Phoenix motel room. During the course of the robbery, the victim was shot and killed. At his first trial, defendant was convicted of first degree murder, armed robbery, and aggravated 119 assault. Because of evidentiary errors, we reversed and remanded for a new trial. State v. Romanosky, 162 Ariz. 217, 782 P.2d 693 (1989). The evidence is summarized in the earlier opinion and need not be restated here. At his second trial, the trial court dismissed the aggravated assault count at the close of the state's case. Defendant did not testify at trial, and his defense was that the state failed to prove its case beyond a reasonable doubt. The jury convicted defendant of armed robbery and felony murder. He received the death penalty for the murder and 28 years for the armed robbery. Appeal to this court is automatic. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3) and A.R.S. §§ 13-4031, 13-4033, and 13-4035. On appeal, defendant raises numerous issues, many of which relate to the jury selection phase or the penalty phase. In this opinion, we do not discuss those issues unlikely to arise at a new trial before a different judge, or issues that are moot until and unless defendant is again convicted and sentenced to death. See Romanosky, 162 Ariz. at 226-27, 782 P.2d at 702-03. Because the trial judge did not instruct the jury on the doctrine of reasonable doubt at the end of the case, we reverse. We discuss only the facts relevant to that issue. ISSUE Whether a new trial is required because the trial court did not instruct the jury on the doctrine of reasonable doubt at the end of the case. DISCUSSION I. Requirement of Reasonable Doubt Instruction at the End of the Case On the first day of trial, the trial judge preliminarily instructed the jury that in order to convict defendant, the state had to prove defendant guilty of every element of the crimes charged beyond a reasonable doubt. At that same time, the then three-count indictment was read to the jury, but the crimes charged were not defined as they were at the end of the trial. Four days and 26 witnesses later, the lawyers made closing arguments. Both mentioned the state's burden of proving guilt beyond a reasonable doubt. The trial judge then gave additional instructions to the jury, but did not repeat those previously given. There was no reinstruction on the reasonable doubt standard. The judge did provide the jury with a written copy of the instructions that had been given the first day of trial, as well as a copy of those given at the end. Defendant argues that the trial judge's practice of refusing to instruct the jury on the reasonable doubt standard at the close of the evidence is reversible error. It is well-settled that failure or refusal to instruct the jury at the close of the evidence on the state's burden of proof after a request by the defendant is error. The appellate courts of this state have so held in five cases: State v. Johnson, 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992); State v. Jackson (Robert), 144 Ariz. 53, 54, 695 P.2d 742, 743 (1985); State v. Kinkade, 140 Ariz. 91, 94-95, 680 P.2d 801, 804-05 (1984); State v. Jackson (Richard), 139 Ariz. 213, 217, 677 P.2d 1321, 1325 (App. 1983); State v. Marquez, 135 Ariz. 316, 321, 660 P.2d 1243, 1248 (App. 1983). Each of these five published opinions involved the same trial judge that presided over defendant's trial here. Four of the five opinions were issued before the trial in this case. The state necessarily acknowledges the clear rule requiring instruction on reasonable doubt at the close of the case. The state argues, however, that the jury in this case was in fact instructed on the reasonable doubt standard at the close of the evidence, and that only a definition of reasonable doubt, which is not required, is lacking. See State v. Bracy, 145 Ariz. 520, 535, 703 P.2d 464, 479 (1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932 (1986). In support of this claim, the state relies on the following instruction given at the end of the case: "You may not find the defendant guilty of first degree murder unless you find beyond a reasonable doubt that at the time of the 120 killing, the defendant was engaged in the commission of a robbery as defined in these instructions." This instruction was given immediately following the felony murder instruction. This, however, falls short because the jury was told only that the reasonable doubt standard applied to robbery. The jury was not instructed that the standard applied to every element of robbery or of felony murder. The jury was not told that the state must prove beyond a reasonable doubt that the killing was done in the course of and in furtherance of or in flight from the robbery and that defendant or another person involved in the robbery caused the death. See A.R.S. § 13-1105(A)(2). The state correctly asserts that it is not necessary for the trial court to define reasonable doubt for the jury, Bracy, 145 Ariz. at 535, 703 P.2d at 479. However, under our cases, the jury must be instructed concerning the application of the doctrine to each element at the close of the case. See, e.g., State v. Pederson, 102 Ariz. 60, 68, 424 P.2d 810, 818 (1967). II. Preservation of the Issue The state also contends that defendant failed to preserve the reasonable doubt issue for appeal and, therefore, our review is limited to one for fundamental error. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991); Rule 21.3(c), Ariz. R.Crim.P. We disagree. The record shows defendant adequately preserved the issue in the trial court. During defense counsel's opening statement, he began discussing the standard of reasonable doubt. The trial judge interrupted, directed counsel to go on to "what the evidence will show," and stated that "at the appropriate time I will give the instructions of law." On the next-to-last day of trial, the trial judge informed the attorneys that she would not reread the instructions given at the beginning of the trial. The instructions separately requested by defendant included a reasonable doubt instruction. On the last trial day, the trial court asked if there were any objections to the instructions already given or those about to be read to the jury. Defense counsel stated: "Your Honor, your own proposed instructions are acceptable to the defense. I would again reurge my suggested or requested instructions...." In considering the adequacy of the record, we note also that a request to give a reasonable doubt instruction (which is commonly given without request in criminal cases) is somewhat different than a request to give an evidence-based instruction, where the party may need to demonstrate to the trial court an evidentiary basis for the instruction. The reasonable doubt instruction is applicable in all criminal cases regardless of the evidence. The basis for requesting it, in those rare cases where the trial court itself does not intend to give it, is self-evident. The record made by defense counsel here was adequate to put the trial judge on notice of her error in not reinstructing the jury on reasonable doubt. Given the unique history of this subject, any further request was both unnecessary and futile. The trial court's failure to give the requested instruction here was error, and the error was not waived. III. Harmless Error Analysis Our foregoing conclusions do not end our inquiry. We must next determine whether the error was harmless.[1] To constitute harmless error, we must be able to conclude beyond a reasonable doubt that the failure to reinstruct at the end of the trial did not influence the jury's verdict. See Jackson, 144 Ariz. at 55, 695 P.2d at *121 744. Here, we are unable to reach such a conclusion. As noted in Johnson, 173 Ariz. at 276, 842 P.2d at 1289, the failure to give a reasonable doubt instruction at the end of the case "is not necessarily obviated by furnishing written copies of instructions to jurors, or by the fact that lawyers have argued the instructions in summation." This trial involved over 25 witnesses. The instructions received by the jury on the first day of trial included only a statement of the basic principle of reasonable doubt without any reference to defined elements of defined crimes. The crimes themselves were undefined until the end of the case, and the jury was not told at the end of the case that the reasonable doubt standard applied to each element of the defined crimes. From our reading of the record, defendant's only defense was the doctrine of reasonable doubt	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-30113 Plaintiff-Appellee, D.C. No. 2:04-cr-06045-EFS-1 v. JARED RYAN MARCUM, MEMORANDUM* Defendant-Appellant. UNITED STATES OF AMERICA, No. 18-30116 Plaintiff-Appellee, D.C. No. 4:15-cr-06031-EFS-1 v. JARED RYAN MARCUM, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding Argued and Submitted November 5, 2019 Seattle, Washington * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS, District Judge. Defendant-Appellant Jared Marcum appeals the district court’s rulings denying his motion to suppress evidence seized from the car in which he was a passenger; denying his motion to dismiss his indictment based on alleged prosecutorial misconduct during the grand jury proceedings; denying his motion in limine to prevent the admission of evidence from a prior narcotics and firearm arrest; and granting the government’s motion to shackle him during the court proceedings. Marcum also raises on appeal whether his 24-month sentence for violating the conditions of his supervised release was substantively reasonable and whether his conviction for being a felon in possession of a firearm is constitutional under Rehaif v. United States, 139 S. Ct. 2191 (2019). We discuss Marcum’s primary contentions in turn. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm. 1. Marcum challenges the district court’s denial of his motion to suppress the drug and firearm evidence that police seized from Jazmin Torres’s car during an inventory search. We review a district court’s denial of a motion to The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. 2 suppress de novo, but we review the underlying factual findings for clear error. United States v. Perea-Rey, 680 F.3d 1179, 1183 (9th Cir. 2012). Marcum does not have standing to challenge the search because, as a passenger in Torres’s car, he had neither a possessory interest nor a reasonable expectation of privacy in the car. See United States v. Pulliam, 405 F.3d 782, 786 (9th Cir. 2005). Marcum does, however, have standing to challenge the initial stop. See United States v. Twilley, 222 F.3d 1092, 1095 (9th Cir. 2000). To make an investigatory traffic stop, the police must have a “reasonable suspicion” that an occupant of the car is engaged in criminal activity. United States v. Lopez-Soto, 205 F.3d 1101, 1104–05 (9th Cir. 2000). Here, the officers had such a reasonable suspicion because they knew Torres, the car’s registered owner, had an outstanding arrest warrant. It is reasonable to infer that a car’s registered owner will be driving or riding in the car, absent evidence showing otherwise. Here, the officers did not have any evidence that suggested Torres was not in the car, and they could not see the driver clearly through the car’s tinted windows. In these circumstances, the officers had a reasonable suspicion to justify the stop, and the stop did not violate Marcum’s Fourth Amendment rights. We affirm the district court’s denial of Marcum’s motion to suppress. 2. Marcum challenges the district court’s denial of his motion to dismiss his grand jury indictment. We review constitutional challenges to a district court’s 3 denial of a motion to dismiss de novo, and we review challenges to indictments based on a court’s supervisory powers for abuse of discretion. United States v. Fernandez, 388 F.3d 1199, 1238 (9th Cir. 2004). Marcum did not show outrageous government conduct that violated fundamental fairness and shocked the general conscience, which was necessary to support his due process claim. Id. at 1238–39. He similarly did not show flagrant prosecutorial misconduct or even a possibility that the discrepancy in the listed cross streets of the stop and search had a significant influence on the grand jury’s decision to indict him. See id. at 1239. We affirm the district court’s denial of Marcum’s motion to dismiss his indictment. 3. Marcum challenges the district court’s denial in part of his motion in limine to prevent the admission of evidence of his prior narcotics and firearm arrest. We review a district court’s evidentiary ruling for abuse of discretion. United States v. Fries, 781 F.3d 1137, 1146 (9th Cir. 2015). The district court did not abuse its discretion by admitting in part the evidence of Marcum’s arrest as evidence of his motive and intent under Federal Rule of Evidence 404(b). The district court found that the prior arrest was close in time and factually similar to the charged offense, and that it tended to prove a material point. See United States v. Verduzco, 373 F.3d 1022, 1027 (9th Cir. 2004). The district court properly weighed the probative value of the evidence against its prejudicial impact under Federal Rule of Evidence 403 and found that the probative value was not 4 substantially outweighed by any prejudicial impact. See United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002). Those rulings accorded with settled law. We affirm the district court’s denial in part of Marcum’s motion in limine. 4. Marcum challenges the district court’s grant of the government’s motion to shackle him during the court proceedings. We review a district court’s decision to shackle a defendant for abuse of discretion. United States v. Fernandez, 388 F.3d 1199, 1245 (9th Cir. 2004). The district court appropriately relied on the U.S. Marshals Service’s recommendation that Marcum’s out-of-court behavior and heightened danger and flight risk created an “essential state interest” in shackling Marcum with a single ankle restraint. See Deck v. Missouri, 544 U.S. 622, 628–29 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 569 (1986)). Importantly, the district court took special precautions to ensure that the jury would neither see nor hear the ankle restraint. In these circumstances, we conclude that the shackling did not prejudice Marcum’s right to a fair trial. Williams v. Woodford, 384 F.3d 567, 592–93 (9th Cir. 2004). We affirm the district court’s grant of the government’s motion to shackle Marcum during the court proceedings. 5. Next, Marcum claims on appeal that his 24-month sentence for violating the conditions of his prior supervised release is substantively unreasonable. We review a district court’s sentence under a reasonableness standard. United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir. 2006). 5 The district court sentenced Marcum to 24 months imprisonment for violating the terms of his supervised release. This sentence is below the Sentencing Commission range and under the statutory cap, and the district court chose to make the sentence concurrent with Marcum’s 300-month sentence for the indicted offenses, despite the probation officer’s recommendation that the sentences run consecutively. The district court had more than a sound basis to sentence Marcum for violating the terms of his prior supervised release, especially when the supervised release was related to a conviction for an offense similar to that for which he was convicted in this case. We see no basis on which to consider this 24-month sentence to be substantively unreasonable. See United States v. Gonzalez, 906 F.3d 784, 800 (9th Cir. 2018) (“[A] below-	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Originally Filed: December 19, 2019 Refiled in Redacted Form: January 23, 2020 * * * * * * * * * * * * * * * R.S., * PUBLISHED * Petitioner, * No. 15-1207V * v. * Special Master Nora Beth Dorsey * SECRETARY OF HEALTH * Entitlement Decision; Influenza (“flu”) AND HUMAN SERVICES, * Vaccine; Guillain-Barré Syndrome (“GBS”), * Polyneuropathy, Organomegaly, * Endocrinopathy, Monoclonal Gammopathy, Respondent. * and Skin Changes (“POEMS”) Syndrome; * Onset. * * * * * * * * * * * * * * * Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner. Linda S. Renzi, U.S. Department of Justice, Washington, DC, for respondent. DECISION1 I. INTRODUCTION On October 15, 2015, R.S. (“petitioner”) filed a petition under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”),2 42 U.S.C. § 300aa- 10 et seq. (2012), alleging that as a result of receiving an influenza (“flu”) vaccine on October 1, 2013, she suffered from Guillain-Barré syndrome (“GBS”) and polyneuropathy, organomegaly, endocrinopathy, monoclonal gammopathy, and skin changes (“POEMS”) syndrome. Petition at 1 When this decision was originally filed the undersigned advised her intent to post it on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner filed a timely motion to redact certain information. This decision is being reissued with initials, R.S. or S., in place of petitioner’s name. Except for those changes and this footnote, no other substantive changes have been made. This decision will be posted on the court’s website with no further opportunity to move for redaction. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. 1 1-2. Respondent argued against compensation, stating that “this case is not appropriate for compensation under the terms of the Vaccine Act.” Respondent’s Report (“Resp. Rept.”) at 2 (ECF No. 17). After carefully analyzing and weighing the evidence presented in this case in accordance with the applicable legal standards, the undersigned finds that petitioner has failed to provide preponderant evidence that the flu vaccine she received on October 1, 2013, caused her injuries. Therefore, entitlement must be denied. II. PROCEDURAL HISTORY The petition was filed in this matter on October 15, 2015. Shortly thereafter, on October 26, 2015, petitioner filed seven medical record exhibits. Petitioner’s Exhibits (“Pet. Exs.”) 1-7 (ECF No. 7). Petitioner filed additional medical records, her supporting affidavit, and a Statement of Completion on October 27, 2015. Pet. Exs. 8-23 (ECF Nos. 9-10); Pet. Aff. dated Oct. 27, 2015 (ECF No. 11). On February 22, 2016, respondent filed his Rule 4(c) Report, recommending against compensation. Resp. Rept. at 2. A status conference was held in April 2016 to determine next steps in the case, and the parties agreed that petitioner should file an expert report. Order dated Apr. 27, 2016 (ECF No. 18). Petitioner filed two additional sets of medical records on March 26, 2016 and June 6, 2016, respectively. Pet. Exs. 24-28 (ECF Nos. 21, 25). On August 5, 2016, petitioner filed an expert report by Dr. Norman Latov. Pet. Ex. 29 (ECF No. 26). Respondent thereafter filed a responsive expert report by Dr. Dennis Bourdette on January 6, 2017. Resp. Ex. A (ECF No. 33). On January 26, 2017, the undersigned ordered petitioner to file a supplemental expert report addressing the opinions of Dr. Bourdette. Order dated Jan. 26, 2017 (ECF No. 34). Petitioner submitted a supplemental report from Dr. Latov on March 23, 2017. Pet. Ex. 31 (ECF No. 35). On May 2, 2017, the undersigned held a Rule 5 status conference with the parties. Order dated May 2, 2017 (ECF No. 39). Given the complexities of the case, the undersigned did not offer her preliminary findings. Rather, both parties agreed that expert reports addressing the hematologic aspect of petitioner’s claim would be helpful. Respondent filed an expert report by Dr. Brea Lipe on June 16, 2017. Resp. Ex. C (ECF No. 40). On December 4, 2017, petitioner submitted a responsive report from Dr. Latov. Pet. Ex. 38 (ECF No. 54). After a number of months, petitioner filed an expert report from Dr. Samir Parekh on October 11, 2018. Pet. Ex. 57 (ECF No. 75). On June 20, 2018, the undersigned set this matter for hearing to take place on January 29- 30, 2019. Order dated June 20, 2018 (ECF No. 72). The parties completed their respective pre- hearing filings by early January 2019, and the hearing took place as scheduled. The parties filed post-hearing briefs on April 26, 2019 and July 24, 2019, respectively. This matter is now ripe for adjudication. 2 III. MEDICAL TERMINOLOGY As the literature filed in this case establishes, GBS is a peripheral neuropathy involving rapidly-progressive and ascending motor paralysis caused by demyelination of the peripheral nerves. See Pet. Ex. 29, Tab C at S21-S22.3 The primary clinical features of the disease are generalized muscle weakness combined with sensory symptoms. Id. at S21. Symptoms indicative of GBS typically begin abruptly with paresthesia in the feet, progressing to paralysis of the lower limbs, and ascending to the trunk, limbs, and face. Id. at S21-S22. Weakness of the facial muscles and respiratory complaints are also common features. Id. Patients suffering from GBS typically experience a monophasic course and reach nadir between two and four weeks following onset. Id. at S21. Chronic inflammatory demyelinating polyneuropathy (“CIDP”) is a chronic form of GBS, which progresses slowly over time, but manifests similar symptoms. Resp. Ex. E, Tab 1 at 477.4 Patients with symptoms consistent with GBS, but lasting longer than two months, are typically considered to be suffering from CIDP. POEMS syndrome, by contrast, is a paraneoplastic syndrome due to an underlying plasma cell disorder. Pet. Ex. 29, Tab F at 214.5 Typical features of the syndrome include: demyelinating polyradiculoneuropathy, organomegaly, endocrinopathy, monoclonal plasma cell disorder, and skin changes. Id. The diagnostic criteria for the condition requires a patient to satisfy two mandatory criteria: polyneuropathy and monoclonal gammopathy, along with one of the following: elevated serum vascular endothelial growth factor (“VEGF”) levels, sclerotic bone lesions, or Castleman’s disease. Id. Additionally, patients suffering from POEMS may have various minor criteria, such as papilledema and thrombocytosis. Id. The progression of symptoms is gradual, with the median time from onset to diagnosis being thirteen to eighteen months. Resp. Ex. C, Tab 4 at 304.6 Misdiagnosis of the illness is common due to its rarity and multi-system manifestations. Id. The most common misdiagnoses, based on the initial symptoms, include CIDP, diabetes, and nephritis. Id. Despite their differences, distinguishing between POEMS and GBS/CIDP is difficult during the early phases given the similarities in the initial presenting neuropathy. The literature filed in this matter suggests that over half of POEMS patients presenting with a related polyneuropathy are diagnosed initially with CIDP. Resp	{ "pile_set_name": "FreeLaw" }
IN THE SUPREME COURT OF THE STATE OF DELAWARE WAL-MART STORES, INC., § § No. 614, 2013 Defendant Below, § Appellant/Cross-Appellee, § § Court Below-Court of v. § Chancery of the State of § Delaware INDIANA ELECTRICAL WORKERS § C.A. No. 7779 PENSION TRUST FUND IBEW, § § Plaintiff Below, § Appellee/Cross-Appellant § Submitted: July 10, 2014 Decided: July 23, 2014 Before HOLLAND, BERGER, and RIDGELY, Justices and BUTLER and WALLACE, Judges,1 constituting the Court en Banc. Upon appeal from the Court of Chancery. AFFIRMED. Donald J. Wolfe, Jr., Esquire, Stephen C. Norman, Esquire, Tyler Leavengood, Esquire, Potter Anderson & Corroon LLP, Wilmington, Delaware, Theodore J. Boutrous, Jr., Esquire, Gibson Dunn & Crutcher LLP, Los Angeles, California, Jonathan C. Dickey, Esquire, Brian M. Lutz, Esquire, Gibson Dunn & Crutcher LLP, New York, New York, Mark A. Perry, Esquire (argued), Gibson Dunn & Crutcher LLP, Washington, DC, for appellants. Stuart M. Grant, Esquire (argued), Michael J. Barry, Esquire, Nathan A. Cook, Esquire, Bernard C. Devieux, Esquire, Grant & Eisenhoffer, P.A., Wilmington, Delaware, for appellees. 1 Sitting by designation pursuant to Del. Const. art. IV, § 12 and Supr. Ct. R. 2 and 4. HOLLAND, Justice: The Defendant Below/Appellant-Cross Appellee Wal-Mart Stores, Inc. (“Wal-Mart” or the “Company”) appeals from a final judgment of the Court of Chancery identifying specific steps Wal-Mart must take in searching for documents, and specific categories of documents Wal-Mart must produce, in response to a demand made by Plaintiff Below/Appellee-Cross Appellant Indiana Electrical Workers Pension Trust Fund IBEW ( “IBEW” or “Plaintiff”) pursuant to title 8, section 220 of the Delaware Code. The Court of Chancery conducted a Section 220 trial on the papers to determine whether Wal-Mart had produced all responsive documents in reply to IBEW’s demand. The Court of Chancery entered a Final Order and Judgment, which required Wal-Mart to produce a wide variety of additional documents, including ones whose content is privileged or protected by the work-product doctrine. Wal-Mart appeals the Court of Chancery’s Final Order with regard to its obligations to provide additional documents. IBEW filed a cross-appeal, arguing that the Court of Chancery erred in failing to require Wal-Mart to correct the deficiencies in its previous document productions and in granting in part Wal- Mart’s motion to strike its use of certain Whistleblower Documents. 2 We conclude that all of the issues raised in this appeal and cross-appeal are without merit. Therefore, the judgment of the Court of Chancery must be affirmed. Facts IBEW is a retirement system that provides retirement benefits to electrical workers in Indiana. Wal-Mart is a Delaware corporation that has its headquarters in Bentonville, Arkansas. Wal-Mart operates stores in 27 different countries and employs about 2.2 million people worldwide. The Company’s stock is listed on the NYSE. Wal-Mart de Mexico, S.A. de C.V. (“WalMex”) is a subsidiary of Wal-Mart in which Wal-Mart owns a controlling interest. WalMex is not a party to this action. At all times IBEW has been a stockholder of appellant, Wal-Mart. On April 21, 2012, The New York Times, in an article titled Vast Mexico Bribery Case Hushed Up by Wal-Mart After Top-Level Struggle (the “Times Article”), 2 described a scheme of illegal bribery payments made to Mexican officials at the direction of then-WalMex CEO, Eduardo Castro-Wright, between 2002 and 2005. The Times Article revealed that Wal-Mart executives were aware of the conduct no later than September 21, 2005, and suggested that Wal-Mart’s responses were deficient. IBEW summarized the Times Article in its answering brief, as follows: 2 Appendix to Wal-Mart’s Opening Br. at A96-116. 3 In exchange for the bribes, WalMex received benefits ranging from zoning changes to rapid and favorable processing of permits and licenses for new stores. The Company was aware of this illegal conduct by no later than September 21, 2005, when an executive of WalMex, Sergio Cicero Zapata (“Cicero”), informed the general counsel of Wal-Mart International, Maritza I. Munich (“Munich”), of “‘irregularities’ authorized by ‘the highest levels’ at [WalMex].” Munich initiated the investigation (the “WalMex Investigation”), first hiring a Mexican attorney to interview Cicero and evaluate his allegations, and then working with Willkie Farr & Gallagher LLP (“Willkie Farr”) to develop an independent investigation plan. Wal- Mart’s senior leadership in the U.S., however, rejected Willkie Farr’s November 2005 proposal for a “thorough investigation,” and instead chose a “far more limited” internal two-week “Preliminary Inquiry” involving Wal-Mart’s Corporate Investigations Department and International Internal Audit Services (“IAS”) departments. The “Preliminary Inquiry” work-plan provided that, among other things, a progress report would be given to Wal-Mart’s management and the Chairman of the Audit Committee, Roland Hernandez (“Hernandez”), on November 16, 2005. Munich kept senior Wal-Mart officials in Arkansas apprised of the preliminary inquiry in a series of emails and detailed memoranda. In December 2005, an internal Wal-Mart report on the preliminary inquiry’s findings was sent to Wal-Mart executives describing evidence “corroborat[ing] the hundreds of gestor payments [i.e., payments to ‘fixers’], the mystery codes, the rewritten audits, the evasive responses from [WalMex] executives, the donations for permits, the evidence gestores [i.e., ‘fixers’] were still being used.” The report’s conclusion was grave: “There is reasonable suspicion to believe that Mexican and USA laws have been violated.” Rather than expand the investigation, Wal-Mart executives chastised the investigators for being “overly aggressive . . . .” On February 3, 2006, Scott3 ordered the prompt development of a “modified protocol” for internal investigations. As a result, control over the 3 H. Lee Scott has been a director of Wal-Mart since 1999, Wal-Mart’s CEO from 2000 to 2009, and a Wal-Mart executive officer until January 31, 2011. 4 WalMex Investigation was transferred to “one of its earliest targets,” José Luis Rodríguezmacedo, WalMex’s general counsel (“Rodríguezmacedo”). Munich complained to senior Wal-Mart executives, noting that “[t]he wisdom of assigning any investigative role to management of the business unit being investigated escapes me,” and resigned from the Company shortly thereafter. Rodríguezmacedo quickly cleared himself and his fellow WalMex executive of any wrongdoing, “wrapp[ing] up the case in a few weeks, with little additional investigation[,]” and concluding that “[t]here is no evidence or clear indication of bribes paid to Mexican government authorities with the purpose of wrongfully securing any licenses or permits.” On June 6, 2012, Wal-Mart received a letter from IBEW (the “Demand”). The letter requested inspection of broad categories of documents relating to the bribery allegations described in the Times Article (the “WalMex Allegations”). The purpose of the Demand, as explained in the letter, was to investigate: (1) mismanagement in connection with the WalMex Allegations; (2) the possibility of breaches of fiduciary duty by Wal-Mart or WalMex executives in connection with the bribery allegations; and (3) whether a	{ "pile_set_name": "FreeLaw" }
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 13a0335p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ X Plaintiffs-Appellants, - GLORIA STRAYHORN, et al., - - - Nos. 12-6195/ 6198/ 6200/ v. , 6203/ 6208/ 6209/ 6210 > - Defendants-Appellees. - WYETH PHARMACEUTICALS, INC., et al., N Appeal from the United States District Court for the Western District of Tennessee at Memphis. Nos. 2:11-cv-02058; 2:11-cv-02059; 2:11-cv-02060; 2:11-cv-02083; 2:11-cv-02095; 2:11-cv-02134; 2:11-cv-02145—S. Thomas Anderson, District Judge. Argued: July 31, 2013 Decided and Filed: December 2, 2013 Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges. _________________ COUNSEL ARGUED: Collyn A. Peddie, LAW OFFICES OF COLLYN PEDDIE, Houston, Texas, for Appellants. Henninger S. Bullock, MAYER BROWN LLP, New York, New York, for Appellees Schwarz and Alaven. Jeffrey F. Peck, ULMER & BERNE LLP, Cincinnati, Ohio, for Appellees Watson, Duramed, PLIVA, and Barr. Richard A. Oetheimer, GOODWIN PROCTER LLP, Boston, Massachusetts, for Appellee TEVA. ON BRIEF: Julie L. Rhoades, MATTHEWS & ASSOCIATES, Houston, Texas, for Appellants. Henninger S. Bullock, Andrew J. Calica, MAYER BROWN LLP, New York, New York, for Appellees Schwarz and Alaven. Kannon K. Shanmugam, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Wyeth Appellees. Jeffrey F. Peck, Linda E. Maichl, Joseph P. Thomas, ULMER & BERNE LLP, Cincinnati, Ohio, Richard A. Oetheimer, GOODWIN PROCTER LLP, Boston, Massachusetts, Irene C. Keyse-Walker, Julie A. Callsen, Michael J. Ruttinger, TUCKER ELLIS LLP, Cleveland, Ohio, Kathleen Kelly, HINSHAW & CULBERTSON LLP, Boston, Massachusetts, Katherine Frazier, BAKER & WHITT, PLLC, Memphis, Tennessee, Daniel J. Herling, KELLER AND HECKMAN LLP, San Francisco, California, Shea Sisk Wellford, MARTIN TATE MORROW & MARTSON, Memphis, Tennessee, Mark S. Cheffo, Rachel B. Passaretti-Wu, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, New York, New York, Albert C. Harvey, THOMASON, HENDRIX, HARVEY, JOHNSON 1 Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 2 6203/ 6208/ 6209/ 6210 et al. & MITCHELL, Memphis, Tennessee, Jonathan I. Price, GOODWIN PROCTER LLP, New York, New York, William F. Sheehan, GOODWIN PROCTER LLP, Washington, D.C., Habib Nasrullah, Kelly A. Laudenslager, WHEELER TRIGG O’DONNELL LLP, Denver, Colorado, for Appellees. GILMAN, J., delivered the opinion of the court, in which GRIFFIN, J., joined and STRANCH, J., joined in part. STRANCH, J. (pp. 40–55), delivered a separate opinion concurring in part and dissenting in part. _________________ OPINION _________________ RONALD LEE GILMAN, Circuit Judge. These seven consolidated cases are among the many that have been filed nationwide against the manufacturers of both the prescription drug Reglan and its generic equivalent, metoclopramide. The plaintiffs allege that they ingested generic metoclopramide and, as a result, developed a serious neurological disorder known as tardive dyskinesia. They filed suit against both the generic and brand-name manufacturers, alleging a wide variety of product-liability claims. The makers of the generic metoclopramide moved to dismiss the claims against them, arguing that all of the plaintiffs’ claims are preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §§ 301-399f, under the Supreme Court decision in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011). And the brand-name manufacturers moved for summary judgment, contending that they are not liable to the plaintiffs because none of the plaintiffs ingested Reglan. The district court granted both motions. For the reasons set forth below, we AFFIRM the judgment of the district court and DENY the plaintiffs’ pending motion to certify a proposed question to the Tennessee Supreme Court. Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 3 6203/ 6208/ 6209/ 6210 et al. I. BACKGROUND A. Factual background The basic facts are undisputed, and the lawsuits filed in the district court for each of the consolidated cases are identical to one another. We will therefore refer to the seven consolidated cases as “the present case.” The manufacturers of Reglan are Alaven Pharmaceuticals LLC; Pfizer, Inc.; Schwarz Pharma, Inc.; Wyeth Pharmaceuticals, Inc.; Wyeth LLC; and Wyeth, Inc. We will refer to these defendants collectively as the Brand-Name Manufacturers. The makers of generic metoclopramide are Actavis Elizabeth LLC; Barr Pharmaceuticals, Inc.; Duramed Pharmaceuticals, Inc.; Generics Bidco I LLC; McKesson Corporation; Mutual Pharmaceutical Co.; Northstar RX, LLC; PLIVA, Inc.; Ranbaxy Pharmaceuticals, Inc.; TEVA Pharmaceuticals USA, Inc.; The Harvard Drug Group; United Research Laboratories, Inc.; and Watson Laboratories, Inc. We will refer to these defendants collectively as the Generic Manufacturers. The district court took the following facts from the plaintiffs’ amended complaint as true for the purpose of ruling on the Generic Manufacturers’ Motion to Dismiss: Reglan is a prescription drug, and metoclopramide is its generic bioequivalent. (Am. Compl. ¶ 6.) Reglan and metoclopramide’s product labeling recommends them for use as short-term therapies for symptomatic gastroesophageal reflux—heartburn—and acute and recurrent diabetic gastric stasis—bloating. (Id. ¶ 13.) The labels recommend therapy for up to twelve weeks in adults for heartburn, but they did not contain a durational limit for bloating. (Id. ¶ 14.) At no time have Reglan or metoclopramide been shown to be either efficacious or safe when used for long-term treatment. (Id. ¶ 15.) Reglan and metoclopramide affect the brain’s movement center, typically causing involuntary, repetitive movements. (Id. ¶ 7.) Overuse of Reglan and metoclopramide can result in extra-pyramidal symptoms including, but not limited to, tardive dyskinesia, dystonia, and akathisia, Parkinsonism, and Reglan-induced tremors. (Id. ¶ 8.) Reglan and metoclopramide have also been associated with central nervous system disorders, depression with suicidal ideation, visual disturbances, and Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 4 6203/ 6208/ 6209/ 6210 et al. memory loss. (Id.) Tardive dyskinesia, dystonia, and akathisia are serious neurological movement disorders resulting in involuntary and uncontrollable movements of the head, neck, face, arms, or truck [sic], as well as involuntary facial grimacing and tongue movements, including tongue thrusting, tongue chewing, extreme anxiety, and restlessness or other involuntary movements. (Id. ¶ 9	{ "pile_set_name": "FreeLaw" }
89 F.3d 841 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Vincent X. LEE, Appellant,v.Dora SCHRIRO; Bill Armontrout; Steve Long; Lisa Jones;Michael Groose; Dave Dormire; Gerald Bommel; Jack Kirk;Vivian Watts; Harriet Swinger; Larry Woods; Davis;Michael L. Plemmons; Malone; Steve Gilpin; Corum;Lucretia Bright; Gore; Oxford; Weaver; Ruppels; FarmAnd Home Insurance Company; State Farm Insurance; AllState Insurance, Appellees. No. 95-4012. United States Court of Appeals, Eighth Circuit. Submitted: June 7, 1996Filed: June 11, 1996. Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges. PER CURIAM. 1 Vincent X. Lee appeals the district court's1 dismissal of his complaint. Lee alleged twenty-four different defendants violated his state and federal constitutional rights, and the Religious Freedom Restoration Act, by placing him in administrative segregation, by interfering with his practice of religion, and by confiscating and destroying his personal property. On two occasions, the district court ordered Lee to submit a shorter, more readable, and more definite statement of his claims, and to provide facts showing how each defendant violated his constitutional rights; the court indicated failure to comply would result in dismissal. Lee did not comply. The district court dismissed Lee's property claim pursuant to 28 U.S.C. § 1915(d), and dismissed Lee's remaining claims without prejudice pursuant to Rule 41(b) for failure to comply with court orders. We conclude the district court did not err in dismissing Lee's claims. See Edgington v. Missouri Dep't of Corrections, 52 F.3d 777, 779 (8th Cir.1995) (no abuse of discretion to dismiss complaint for failure to comply with court order where pro se plaintiff failed to specifically plead how each defendant violated his rights); Orebaugh v. Caspari, 910 F.2d 526, 527 (8th Cir.1990) (per curiam) (inmate's due process rights were not violated by destruction of property seized from cell because Missouri provided adequate post-deprivation remedy). 2 Accordingly, we affirm the judgment of the district court. 1 The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri, adopting the report and recommendations of the Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri	{ "pile_set_name": "FreeLaw" }
636 F.2d 1226 Audio Dynamic Enterprises, In re 78-3198 UNITED STATES COURT OF APPEALS Ninth Circuit 12/5/80 1 C.D.Cal. AFFIRMED	{ "pile_set_name": "FreeLaw" }
Case: 11-30885 Document: 00511822117 Page: 1 Date Filed: 04/16/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 16, 2012 No. 11-30885 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JERRY LEE CUTLEY, Defendant-Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:10-CR-166-1 Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges. PER CURIAM:* Jerry Lee Cutley pleaded guilty to being a felon in possession of a firearm and ammunition. His sentence was enhanced under the Armed Career Criminal Act (ACCA) because the district court determined that he had at least three prior convictions for violent felonies. 18 U.S.C. § 924(e). He received a 180- month prison term. Cutley challenges his sentence, arguing that his prior convictions should not qualify as violent felonies warranting an enhancement * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-30885 Document: 00511822117 Page: 2 Date Filed: 04/16/2012 No. 11-30885 under the ACCA. The Government moved for summary affirmance, or, in the alternative, for an extension of time to file a brief. Under the ACCA, a person who has been convicted of possessing a gun as a felon is subject to a 15-year mandatory minimum sentence if he has three prior convictions for violent felonies or serious drug offenses. § 924(e). A violent felony includes certain enumerated crimes, including burglary, as well as any crime that falls under the residual clause of the statute, i.e., one that “involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(ii). We review the legal conclusions underlying the district court’s application of the ACCA de novo. United States v. Hawley, 516 F.3d 264, 269 (5th Cir. 2008). Cutley argues that his three prior convictions for simple burglary do not amount to violent felonies. In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court held that the generic definition of burglary for purposes of the ACCA is “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” 495 U.S. at 599. The statute under which Cutley’s convictions arose applies to unauthorized entry into not only buildings or structures but also vehicles, watercraft, and cemeteries. LA. REV. STAT. 14:62. Nonetheless, as Cutley concedes, the charging documents and the transcripts of the guilty pleas from these cases, which we may take into account, Shepard v. United States, 544 U.S. 13, 17-18, 26 (2005), reveal that he admitted that all three of his burglary convictions involved unauthorized entry into a building or structure with the intent to commit a theft while inside and thus meet the generic definition of burglary. Accordingly, the district court properly determined that these convictions are for violent felonies. Cutley acknowledges that his argument fails under Taylor, but wishes to preserve it so that he may urge the Supreme Court to revisit its decision. Because Cutley’s three prior convictions for burglary, an enumerated offense, are sufficient to support the enhancement under the ACCA, we need not 2 Case: 11-30885 Document: 00511822117 Page: 3 Date Filed: 04/16/2012 No. 11-30885 address Cutley’s argument with respect to other convictions found by the district court to also support the enhancement under the ACCA. The judgment of the district court is AFFIRMED. All pending motions are DENIED. 3	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit Nos. 11-3477, 11-3570 & 12-1334 L OCK R EALTY C ORP. IX, Plaintiff-Appellee/ Cross-Appellant, v. U.S. H EALTH, LP, et al., Defendants-Appellants/ Cross-Appellees. Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. Nos. 3:06-CV-487 RM, 3:05-CV-715 RM—Robert L. Miller, Jr., Judge. A RGUED S EPTEMBER 17, 2012—D ECIDED F EBRUARY 12, 2013 Before E ASTERBROOK, Chief Judge, and B AUER and W OOD , Circuit Judges. W OOD , Circuit Judge. These appeals represent the end of the line for a long-running dispute over a nursing- home lease between Lock Realty Corporation IX (the lessor) and U.S. Health (the lessee) and Americare (the lessee’s assignee). For simplicity, we refer to the 2 Nos. 11-3477, 11-3570 & 12-1334 defendants as Americare unless the context requires otherwise. Between Americare’s appeal and Lock’s cross- appeal, we are presented with a potpourri of issues covering everything from the propriety of a partial sum- mary judgment in Lock’s favor to the district court’s attorneys’ fee decision. The most complex question, however, relates to our appellate jurisdiction—a subject on which we requested supplemental briefing after oral argument. After reviewing the parties’ submissions, we are satisfied that our jurisdiction is secure. On the merits, we find no reversible error in the various rulings of the district court that the parties have highlighted, and so we affirm. I In January 2002, U.S. Health entered into a 20-year lease for a nursing home and adjacent property owned by Lock in Goshen, Indiana. Defendants Larry New, John Bartle, and Rebecca Bartle guaranteed the lease, which was to run from April 2002 to March 2022. At some point before mid-2006, U.S. Health assigned the lease to defendant Americare Living Centers III, LLC. It did so without obtaining Lock’s written consent, despite a provision in the lease imposing that precondition to assignment. Other concerns began to come to light, how- ever, that did attract Lock’s attention. Two separate lawsuits followed, to which we will refer as Lock I and Lock II. We trace each one here, in the hope that this detail will not only place the issues before us in context, but will also show why we have appellate jurisdiction. Nos. 11-3477, 11-3570 & 12-1334 3 For the most part, facts relating to the merits of the argu- ments on appeal will be presented as we discuss each point. A. Lock I On January 24, 2006, Lock filed suit in federal court, invoking the diversity jurisdiction, against U.S. Health. This lawsuit, No. 3:05-CV-715 in the district court, charged that U.S. Health had violated a provision of the lease under which it was required to fund a replace- ment reserve. The parties reached a settlement relatively quickly. On May 4, 2006, the district court entered an order for a stipulated judgment in Lock’s favor of $679,287.96, along with prejudgment interest of $1,471.13; it set the interest rate for the post-judgment period at 4.94%. The next day, U.S. Health filed a motion to set aside the May 4 judgment. On May 17, 2006, the parties stipulated that the judgment would be set aside and a new judgment for Lock in the amount of $485,430.56 would be entered. The stipulation also noted that an amount for attorneys’ fees would be agreed by June 10, 2006, and a supplemental judg- ment reflecting that agreement would be entered. On May 30, 2006, the court entered an order reflecting the May 17 stipulations. Although things had been going smoothly (more or less) up to that point, it was not long before problems began to crop up. The June 10 date for an agreement on attorneys’ fees turned out to be unrealistic, and so there were several extensions. On June 21, 2006, however, the 4 Nos. 11-3477, 11-3570 & 12-1334 court entered a final judgment for Lock in the agreed amount of $485,430.56, plus post-judgment interest at a rate of 5.13%. On July 14, 2006, the court issued an order granting Lock’s motion for fees and setting the amount at $29,238.85. Six weeks later, on August 31, 2006, Lock filed a motion under Federal Rule of Civil Procedure 60(b)(2) and (3) asking the court to modify its judgment to include Americare as a judgment debtor. Lock explained that it had only then learned that U.S. Health, without the necessary authorization from Lock, had assigned its lease to Americare. The court obliged in an order entered September 25, 2006. On October 5, Americare filed a motion under Fed- eral Rule of Civil Procedure 59(e) to amend the Septem- ber 25 order by removing it as a judgment debtor. The court denied this motion on November 28, 2006; this appears to be its last word on the appropriateness of including Americare in the case. In the meantime, Lock was having no luck collecting its half-million dollars from either U.S. Health or Americare. On January 16, 2007, Lock filed a motion for supplemental attorneys’ fees and costs arising out of its collection efforts. The court denied that motion on February 27, 2007. At the same time, it resolved some motions that raised issues about priority among the parties for certain Medicare funds, which apparently were being sought in connection with the judgment. It set a hearing on that issue for March 7, and on March 9, it entered an order disbursing the Medicare funds that it previously had frozen. This order stated that the Nos. 11-3477, 11-3570 & 12-1334 5 June 21 judgment on the merits and the July 14 attor- neys’ fee judgments were satisfied. This came tantalizingly close to resolving the case, but one matter remained out- standing: Lock’s effort to obtain additional fees and costs related to the post-judgment phase. On March 16, 2007, Lock decided to pursue that matter in a different way, by filing a motion to amend the July 14, 2006, judgment for attorneys’ fees. Although it is not clear, this motion seems to have relied on Rule 60(b)(3), which permits relief from a final judgment for reasons of fraud, misrepresentation, or misconduct by an opposing party. The court denied that motion more than a year later, on April 28, 2008, but it did so “without prejudice to its renewal at the conclusion of the companion case [Lock II], at which time Lock may submit evidentiary support for the attorneys’ fees and costs requested.” More than two years after that order, on July 22, 2010, the court entered its final judgment in Lock II, as we describe below. Lock followed up with a renewed motion for supplemental attorneys’ fees, as the court had said it could, on August 5, 2010. Another year and a half elapsed before that motion was resolved, but on January 10, 2012, the court issued an order granting Lock an additional $86,675.50 in fees and $1,206.02 in costs. In the same order, the court denied Americare’s motion to strike the affidavit of Timothy Maher, Lock’s lead counsel, in support of the fee motion. With all of the loose ends finally tied up, Americare and U.S. Health filed their notice of appeal on February 9, 2012, from the January 10 award of fees. That appeal was docketed as No. 12-1334 in this court. 6 Nos. 11-3477, 11-3570 & 12-1334 B. Lock II As we noted above, shortly after the district court entered its judgment in June 2006 in Lock’s favor and Lock began its collection efforts, Lock learned about U.S. Health’s assignment of the lease to Americare. In addition, Lock had not received the rental payments on the lease for the months of June, July, and August 2006, and Lock believed that U.S. Health had breached the guarantees in the lease. In September 2006, therefore, Lock filed suit against U.S. Health, Americare, and the individual defendants for breach of contract and for immediate possession of the premises	{ "pile_set_name": "FreeLaw" }
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-15-00369-CR Dacious Parker, Appellant v. State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. D-1-DC-12-600094, HONORABLE P. DAVID WALHBERG, JUDGE PRESIDING ORDER AND MEMORANDUM OPINION PER CURIAM Appellant Dacious Parker pleaded guilty to the offense of aggravated assault-enhanced and the district court placed him on deferred-adjudication community supervision for a period of ten years. Subsequently, the State filed a motion to proceed with an adjudication of guilt. Parker pleaded “not true” to the allegations in the motion to adjudicate and was sentenced to twenty years’ imprisonment. This appeal followed. The rules of appellate procedure require a trial court to “enter a certification of the defendant’s right of appeal each time it enters a judgment of guilt or other appealable order.” Tex. R. App. P. 25.2(a)(2). The certification in this cause indicates that this is a plea-bargain case and the defendant has no right of appeal, but the record indicates that Parker did not plead guilty or nolo contendere but “not true” to the allegations in the State’s motion to adjudicate. See Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006) (concluding that “when the defendant appeals from the proceeding on the motion to adjudicate guilt, Rule 25.2(a)(2) will not restrict appeal”). In light of the apparent discrepancy between the certification and the record, we abate the appeal and remand the cause to the district court for entry of an amended certification addressing Parker’s right of appeal from the judgment adjudicating guilt. See Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (concluding that appellate courts may examine certification for defectiveness and use Appellant Rules of Procedure 37.1 and 34.5(c) when appropriate to obtain another certification and noting that “[Rule 25.2(a)(2)] refers only to plea bargains with regard to guilty pleas, not pleas of true on revocation motions”). Once entered, the certification shall be included in a supplemental clerk’s record and filed with this Court no later than October 29, 2015. Before Justices Puryear, Goodwin, and Bourland Abated and Remanded Filed: October 9, 2015 Do Not Publish 2	{ "pile_set_name": "FreeLaw" }
286 P.2d 275 (1955) ELK CITY, a municipal corporation, Plaintiff in Error, v. Gertrude RICE, Defendant in Error. No. 36112. Supreme Court of Oklahoma. July 5, 1955. Donald Royse, City Atty., and Holland Meacham, Elk City, for plaintiff in error. Hill & Godfrey, by Houston Bus Hill, Oklahoma City, for defendant in error. 277 BLACKBIRD, Justice. The appearance of the parties to this appeal is the reverse of the order in which they appeared in the trial court, and all reference to them herein will be by their trial court designations. The action is one for damages to plaintiff's farm from erosion allegedly caused by water of the Red River being diverted against the north bank of said river's channel from its former course along the south bank, said diversion and change in course being allegedly caused by the negligent "construction, operation, maintenance and repair" of defendant's water pipe line which traversed said river and farm. The right-of-way which the defendant City obtained from plaintiff before constructing the pipe line in 1937 was, by the terms of said parties' easement agreement, for the purpose of repairing and maintaining the line, as well as constructing it. Thereafter, in 1942, high water and/or flood conditions in that vicinity resulted in the "washing out" of a portion of the line crossing the river; and, in 1943, defendant repaired it, burying it under the river bed and laying it deeper under the surface of the earth where it penetrated both banks of the river's channel. In order to accomplish and/or facilitate this work a temporary dam or dike, four or five feet high, was erected, extending partly across the river bed up stream from the line's river crossing. When the work was completed, this dike was not leveled or abolished and the defendant's negligence in failing to do this, which, according to plaintiff's claims, was the principal cause of the river changing its course and beginning to erode its north bank in the direction of her land, is the alleged cause of the damages plaintiff has suffered. In her petition, she sought recovery of a total of $33,280 as compensation for the alleged injuries to her farm, as if her action was statutory reverse condemnation, and, only in the alternative, did she characterize her alleged cause of action as the common-law one of damages for tort. Before the trial, the court, by order, ruled that her only alleged cause of action was in damages for the defendant's negligence, and this was the theory upon which the cause was submitted to the jury. The verdict was in plaintiff's favor for damages in the sum of $2,750, and judgment was entered accordingly. The case is presented to this Court both on appeal by defendant and cross appeal by plaintiff. To avoid repetition and serve the purpose of clarity, we will first consider defendant's argument concerning the trial court's alleged error in instructing the jury, along with the plaintiff's contention that said court erred in denying her the right to try the cause as one for condemnation in reverse, rather than as a common-law action for damages. Article II, § 24 of our State Constitution prohibits the taking of private property for public use without just compensation. Tit. 27 O.S. 1951 § 5, authorizes cities to condemn land for public purposes, and Tit. 66 O.S. 1951 § 57, provides for owners' recovery when their land has been taken or occupied for public use without having been condemned or purchased. This method is often referred to as "condemnation in reverse". Here there has been no taking or occupancy, without compensation, of any part of plaintiff's land for a public use. The erosion, flooding, washing away, and damages generally to the property of which plaintiff complained, was not a necessary incident to the construction, operation or repair of defendant's pipe line. On the basis of her own position and proof, the 278 river's course would not have been changed at the particular point that said change occurred, and the river's water have been there diverted to its opposite bank in the direction of her land with the resulting detriment alleged, had it not been for the defendant's failure, after completion of the work, to remove the temporary dike it threw up to facilitate its repairs to and/or re-laying of the pipe line in 1943. Neither the dike nor the pipe line have themselves ever touched, traversed, or encroached upon the property plaintiff claimed to have been lost and/or damaged; nor, from the undisputed evidence, can the dike be said to facilitate the operation, or be a necessary part of, the public utility here involved. Consequently, according to the overwhelming weight of authority, plaintiff's remedy was not, under the statutes relating to eminent domain, but was in damages for tort. See Oklahoma Gas & Elec. Co. v. Miller Bros. 101 Ranch Trust, 173 Okl. 101, 46 P.2d 570; 18 Am.Jur., Eminent Domain, sec. 38; 29 C.J.S., Eminent Domain, § 161. Defendant's contention that the trial court erred in instructing the jury is based upon said court's refusal to give the fourth of the instructions requested on its behalf. By said instruction, the jury would have been called upon to determine whether plaintiff's damages, if any, "were the natural result or might be regarded as obviously consequential, of the erection of the dike" and would have been told that if they determined that they were, the action was barred and the verdict should be for the defendant. This requested instruction seems to have been based primarily upon the second syllabus of this Court's opinion in Fletcher v. City of Altus, 188 Okl. 342, 108 P.2d 781. In that case, the defendant, in 1927, had constructed a permanent dam to form a lake. Plaintiff's complaint was that by 1934 and 1935 the dam had caused the water of said lake to back up sufficiently to overflow land he had been farming, with the result that the crops thereon during those two years had been damaged. He predicated his entitlement upon his ownership of a share of said crops as a tenant of the land. The trial court sustained defendant's demurrer to said plaintiff's evidence, and, on appeal, defendant urged affirmance on the ground that since there was no question but that the dam was completed in 1927, any cause of action plaintiff may have had was barred before his crops suffered the claimed injuries in 1934 and 1935. There, this Court, after quoting from Pahlka v. Chicago, R.I. & P. Ry. Co., 62 Okl. 223, 161 P. 544, another case of damages caused from a "permanent" improvement or structure, held that the matter should have been determined by submitting to the jury the issue (referred to therein as one of fact and as being "peculiar to each individual case" [188 Okl. 342, 108 P.2d 783]) of whether or not, at the time the Altus dam was completed in 1927, the injuries plaintiff claimed could have been regarded as the certain, or natural and obviously consequential, result of said dam's construction. That case, however, is different from the one here involved. Here the dam, indicated by a portion of the evidence to have caused the diversion of the water, was no appropriate nor necessary part of the pipe line which constituted the "public improvement", nor was it permanent. For all the record shows, it could, and should, have been removed after the rebuilding of defendant's pipe line across the river in 1943, without affecting the operation of the line in any way. If this had been done, plaintiff's damages would have been abated, or to put it more accurately, her claimed injuries could have been prevented long before 1948, which, according to her own testimony, is the first time her land ever suffered any detriment from the dam's diversion of the river or change of its water course. In that event, any claim for the damages she herein sought would have been both premature and unfounded. As pointed out in the court's reference, in Pahlka v. Chicago, R.I. & P. Ry. Co., supra, to the "predicament" of a plaintiff who brings suit immediately after completion of the construction, before his actual injury, her damages "though liable to have been incurred had neither resulted nor were certain to result", and could have been prevented by timely action on the part of the defendant in removing the dike and doing other things necessary to obviate the effect of its remaining there. By instruction number 12, *279 the Court limited plaintiff's recovery to that portion of her proven damages incurred within two years immediately preceding the filing of her action; and, it is our opinion that the trial court committed no error in refusing to otherwise instruct the jury on the limitations issue by an instruction such as defendant's requested instruction number 4. However proper the requested instruction might have been in an appropriate "permanent improvement" case, the facts of the present case were not such as to render proper the giving of that instruction in this case. The defendant also contends that its demurrer to the evidence and motion for directed verdict should have been sustained because the evidence shows that the river's diversion was not caused by the dike. We have carefully examined the record and find that though the evidence on this issue was conflicting, when considered in the proper light for the purpose of ruling upon said demurrer and motion, it was sufficient for submission to the jury. See Independent-Eastern Torpedo Co. v. Price, 208 Okl. 633, 258 P.2d 189. Plaintiff also contends that the court erred in refusing to sustain her motion for an instructed verdict	{ "pile_set_name": "FreeLaw" }
201 U.S. 230 (1906) WYMAN v. WALLACE. No. 191. Supreme Court of United States. Submitted March 6, 1906. Decided April 2, 1906. APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 233 Mr. W.W. Morsman and Mr. Howard B. Smith for appellants in this case and in Nos. 192 and 193, submitted simultaneously herewith.[1] Mr. Richard S. Horton for appellant in No. 194, argued at time of submission hereof.[2] Mr. Richard S. Horton and Mr. Charles Battelle for appellants in No. 195, submitted simultaneously herewith.[3] Mr. James M. Woolworth and Mr. R.S. Hall for appellees in this case and in Nos. 192, 193, 194 and 195, submitted. 240 MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court. A matter of jurisdiction is first presented. The note, which is the foundation of plaintiff's suit, is one made by the American Bank to the Union Bank, both located in Nebraska, and under the statute, for the purpose of jurisdiction, to be considered citizens of Nebraska. 25 Stat. 436; sec. 4. The plaintiff is a citizen of New Hampshire. He could not maintain 241 an action against the maker of the note, although a citizen of a State other than that of the maker and payee. 25 Stat. 434; sec. 1. But if diverse citizenship was the sole basis of the jurisdiction of the Circuit Court, the decision of the Court of Appeals would be final and there would be no appeal to this court. 26 Stat. 828, § 6. The jurisdiction of the Circuit Court, however, was not invoked on the ground of diverse citizenship at least, not on that alone. The case presented was one arising under the laws of the United States. It was a suit to enforce a special right given by those laws. Section 5220, Rev. Stat., reads: "Any [national banking] association may go into liquidation and be closed by the vote of its shareholders owning two-thirds of its stock." By section 5151, Rev. Stat., stockholders in national banks are made liable for "all contracts, debts and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares." Section 2 of the act of June 30, 1876, 19 Stat. 63, is as follows: "SEC. 2. That when any national banking association shall have gone into liquidation under the provisions of section five thousand two hundred and twenty of said statutes, the individual liability of the shareholders provided for by section fifty-one hundred and fifty-one of said statutes may be enforced by any creditor of such association, by bill in equity, in the nature of a creditor's bill, brought by such creditor on behalf of himself and of all other creditors of the association, against the shareholders thereof, in any court of the United States having original jurisdiction in equity for the district in which such association may have been located or established." More than two-thirds of the stock voted, on February 25, 1896, for a voluntary liquidation, and on April 27, 1896, the Comptroller of the Currency formally approved the liquidation and notified the cashier of the American Bank to that effect. In proceeding, therefore, by this suit to enforce in behalf 242 of himself and all other creditors of the American Bank the extra liability imposed by Rev. Stat. § 5151, a case was presented arising under the laws of the United States, and of which, independently of the matter of diverse citizenship, the Circuit Court had jurisdiction. The bill is not multifarious. "The two subjects of applying the assets of the bank and enforcing the liability of a stockholder, however otherwise distinct, are by the statute made connected parts of the whole series of transactions which constitute the liquidation of the affairs of the bank." Richmond v. Irons, 121 U.S. 27, 50. It is suggested that no judgment had been obtained upon the note prior to this suit in equity, but as one object of the suit was to subject to the satisfaction of the debt certain property conveyed to a trustee as security therefor, no judgment at law was a prerequisite. Day v. Washburn, 24 How. 352; Case v. Beauregard, 101 U.S. 688, 691, in which the court said: "Without pursuing this subject further, it may be said that whenever a creditor has a trust in his favor, or a lien upon property for the debt due him, he may go into equity without exhausting legal processes or remedies. Tappan v. Evans, 11 N.H. 311; Holt v. Bancroft, 30 Alabama, 193." We come then to the final question in the case, and that is whether the notes executed by the American Bank were its valid obligations. And in reference to this question these are the significant facts: The demands against the American Bank were pressing. It had not the money with which to meet them. It arranged with the Union Bank to advance the money for the payment of all its outstanding obligations. When the Union Bank paid these obligations of the American Bank it was the same as though it advanced money to that bank to pay them. To reimburse and secure the former the latter bank turned over certain property, and executed these notes for the balance, securing them by a pledge of all its other assets which were placed in the hands of its president, as trustee. 243 All the stipulations and agreements made by the directors of the two banks were carried out in good faith; and, with full knowledge of what had been done, the stockholders voted for a voluntary liquidation. The borrowing of the money by the American Bank did not necessarily put it into liquidation. It had a large amount of assets, and if the real had equaled the nominal value of these assets it would have been enabled after discharging its obligation to the Union Bank to continue business. But on an examination the stockholders felt that it was wiser to stop at once. But that decision did not at all impugn the wisdom or bona fides of the transaction by which the money was obtained to pay off the pressing demands of the American Bank. The question, therefore, is, whether a national bank, finding itself embarrassed, with a large amount of assets; much in excess of its obligations, yet without the cash to make payment of those which are due and urgent, can borrow to meet those pressing demands. A very natural answer is, why not? It is not borrowing money to engage in new business. It simply exchanges one creditor for others. There may be wisdom in consolidating all its debts into the hands of one person. At least such a consolidation cannot be pronounced beyond its powers. When time is obtained by the new indebtedness (in this case a year) it gives the borrowing bank and its officers and stockholders time to consider and determine the wisdom of attempting a further prosecution of business. In the case of an individual it would be a legitimate and often a wise transaction. It is not in terms prohibited by the national banking act. Aldrich v. Chemical National Bank, 176 U.S. 618, is very clearly in point. The opinion in that case is quite lengthy and considers many authorities, but the gist of the decision is expressed in these words (p. 635): "Without further citation of cases we adjudge, both upon principle and authority, that as the money of the Chemical Bank was obtained under a loan negotiated by the vice president of the Fidelity Bank who assumed to represent it in the transaction, and as the latter used the money so obtained in 244 its banking business and for its own benefit, that bank having enjoyed the fruits of the transaction cannot avoid accountability to the Chemical Bank, even if it were true, as contended, that the Fidelity Bank could not consistently with the law of its creation have itself borrowed the money." We are of the opinion that the notes given by the American Bank for the money advanced by the Union Bank were its valid obligations and can, therefore, be enforced against its stockholders. The decree of the Circuit Court of Appeals is Affirmed. NOTES [1] No. 192, Frenzer v. Wallace; No. 193, Morsman v. Wallace, post, pp. 244, 245. [2] No. 194, Poppleton v. Wallace, post, p. 245. [3] No. 195, McClellan v. Wallace, post, p. 244.	{ "pile_set_name": "FreeLaw" }
462 N.W.2d 674 (1990) Robert RUDEN, Administrator of the Estate of Darci Elaine Ruden, Deceased, and Robert Ruden and Jo Lynn Ruden, Appellants, v. Terry Lynn PARKER, Appellee. No. 89-983. Supreme Court of Iowa. November 21, 1990. Earl A. Payson of Nagle, Harris, Cook & Payson, Davenport, Mark J. Smith of Wells, McNally & Bowman, Davenport, and Jerome V. Bolkcom, Alexandria, Va., for appellants. Michael J. Motto of Carlin, Hellstrom & Bittner, Davenport, for appellee. Considered by McGIVERIN, C.J., and SCHULTZ, LAVORATO, SNELL and ANDREASEN, JJ. McGIVERIN, Chief Justice. Plaintiff parents appeal from a grant of summary judgment that dismissed their claim for parental consortium due to the death of their adult child. We affirm. I. Background facts and proceedings. Darci Elaine Ruden was killed in an accident on March 24, 1986, when the car she was driving struck a truck driven by defendant Terry Lynn Parker. Darci was 18 years old at the time of her death. 675 A petition was filed against Parker. In division I, Robert Ruden, acting as administrator of Darci's estate, sought damages for her alleged wrongful death. In division II of this petition, Robert and Jo Lynn Ruden (Rudens) seek damages for the loss of companionship and society of Darci, their adult child. Defendant Parker filed a motion for partial summary judgment, Iowa R.Civ.P. 237, seeking dismissal of Rudens' claim for loss of parental consortium. Parker relied on Iowa Rule of Civil Procedure 8 which expressly limits a parent's right to maintain an action for loss of companionship and society to injury or death of a "minor child." See Miller v. Wellman Dynamics Corp., 419 N.W.2d 380, 383 (Iowa 1988). The district court granted defendant's summary judgment motion, ruling that Rudens have no claim for loss of consortium of their adult daughter Darci. Rudens appeal with our permission, Iowa R.App.P. 2, from the district court's grant of the partial summary judgment motion. In Miller, we recognized the well settled principle that the right of action for wrongful or negligent death of another was unknown at common law in this state and exists only by, and to the extent of, legislative grace. Id. We further refused to recognize a common-law right of parents to sue for consortium damages resulting from the wrongful death of an adult child. Id. In view of that state of the law, Rudens now challenge rule 8 on constitutional grounds. Rudens contend that denial or omission by rule 8 of parents' alleged right to recover for loss of consortium of an adult child, while allowing parents to recover for loss of consortium of a minor child, is a denial of the equal protection guarantees of the United States and Iowa constitutions. See U.S. Const. amend. XIV § 1; Iowa Const. art. I § 6. II. Standing. Parker contends that Rudens do not have standing to challenge the constitutionality of rule 8. We will assume, without deciding, that Rudens have standing to challenge rule 8 because we conclude that rule 8 does not deny equal protection as it applies to Rudens. We do, however, feel compelled to clarify our holding in Miller. In Miller, we stated that parents of an adult child did not have standing to bring a parental consortium action under Iowa Code sections 611.20 and 613.15 (1987). Miller, 419 N.W.2d at 383. Parents lack standing to bring a cause of action under those statutes because the statutes require that a cause of action under them must be brought by the administrator of the decedent's estate. Id. We, also, held in Miller that parents of an adult child could not recover damages under rule 8 because the language of rule 8 limits recovery to circumstances resulting from the death of a minor child. Id. We did not, however, hold that parents of an adult child could not challenge the constitutionality of rule 8. We stated error had not been preserved for appeal on that question. Id. at 384. III. Rudens' equal protection challenge. Iowa Rule of Civil Procedure 8 provides: "A parent, or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child." Rudens argue that the equal protection guarantees of the United States and Iowa constitutions will be violated if rule 8 is applied in a manner that denies them a right to recover for the loss of consortium that resulted from the death of their adult child, while allowing parents to recover for the loss of consortium of a minor child. The district court disagreed with Rudens and ruled that there was no equal protection violation. The United States Constitution provides that, "[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV § 1. Article I section 6 of the Iowa Constitution places substantially the same limitations upon the state as does the equal protection clause of the United States Constitution. See Hearst Corp. v. Iowa Dept. of Revenue & Finance, 461 N.W.2d 295, 304 (Iowa 1990). 676 A. The appropriate standard of review. The first step in applying an equal protection analysis is to determine the appropriate standard of review. Id. We apply a rational basis test unless the challenged statute employs a suspect classification or burdens a fundamental right. Bennett v. City of Redfield, 446 N.W.2d 467, 473 (Iowa 1989). "Suspect classifications are generally based on race, alienage, or national origin." Id. No suspect class is implicated in this case. "Fundamental rights include the right to vote, the right to interstate travel, and other rights, such as those guaranteed by the First Amendment, which are considered essential to individual liberty." Id. No fundamental right is involved in this case. See Parham v. Hughes, 441 U.S. 347, 358, 99 S.Ct. 1742, 1749, 60 L.Ed.2d 269, 279, n. 12 (1979) (Stewart, J., plurality) ("It cannot seriously be argued that a statutory entitlement to sue for the wrongful death of another is itself a `fundamental' or constitutional right."); see also Masunaga v. Gapasin, 57 Wash.App. 624, 630-32, 790 P.2d 171, 175 (1990); Shoemaker v. St. Joseph Hosp. & Health Care Center, 56 Wash.App. 575, 578-80, 784 P.2d 562, 564 (1990). Since the challenged statute does not employ a suspect classification or burden a fundamental right, we will apply a rational basis test. B. Rational basis analysis. "Under the rational basis analysis, a statute is constitutional unless it is patently arbitrary and bears no rational relationship to a legitimate governmental interest." Bennett, 446 N.W.2d at 474. Further, statutes have a presumption of constitutionality. Id. The burden rests on the challenger to demonstrate that the statute violates equal protection concepts. Id. To sustain this burden Rudens must negative every reasonable basis which may support the statute. City of Waterloo v. Selden, 251 N.W.2d 506, 508 (Iowa 1977). Parker points out a rational basis for the distinctions found in rule 8. In substance, Parker suggests that the parent-child relationship is different when a child is a minor as opposed to when a child is an adult. Minor children, as a general rule, live with their parents, and during their early years the interaction between the parent and child is of great importance to the parents, the child and society as a whole. In light of the importance of this relationship, it is rational that the legislature would choose to protect it by allowing recovery when the minor child is killed or injured. Once emancipation or majority is attained, the relationship is different. The fact that there may be a continuing relationship between the parent and the adult child does nothing to diminish the fact that the relationship does change as the child becomes emancipated or reaches the age of majority. Since there is a difference in the degree and nature of the relationship, with that of the parent/adult child being somewhat less than that of the parent/minor child, the legislature can rationally treat these relationships in a different manner, and limit the recoverability of consortium damages to the situation where the child dies before reaching the age of majority or emancipation. We agree with the rational basis for rule 8 suggested by Parker. Thus, we hold that the distinctions made by rule 8 do not deny Rudens equal protection. Our holding that rule 8 does not offend equal protection guarantees is in accord with other jurisdictions which have addressed similar equal protection challenges to statutes similar to our rule 8. See Masunaga v. Gapasin, 57 Wash.App. 624, 630-35, 790 P.2d 171, 175-77 (1990); Shoemaker v. St. Joseph Hosp. & Health Care Center, 56 Wash.App. 575, 578-80, 784 P.2d 562, 564 (1990); cf. Harris v. Kelley, 70 Wis.2d 242, 234 N.W.2d 628 (1975) (statute excluding nondependent adult children from recovery for death of parent not violation of equal protection). Rudens have directed us to	{ "pile_set_name": "FreeLaw" }
886 A.2d 658 (2005) 185 N.J. 387 STATE of New Jersey, Plaintiff-Respondent, v. Robert F. GIORDANO, Jr., Defendant-Petitioner. Supreme Court of New Jersey. November 10, 2005. Denied.	{ "pile_set_name": "FreeLaw" }
928 F.2d 372 UNITED STATES of America, Plaintiff-Appellee,v.Edith Nidia RIVERA-LOPEZ, Defendant-Appellant. No. 90-5059 Non-Argument Calendar.United States Court of Appeals, Eleventh Circuit. April 11, 1991. Barry E. Witlin, Miami, Fla., for defendant-appellant. Dexter W. Lehtinen, U.S. Atty., Donnal S. Mixon, Linda C. Hertz and Kathleen M. Salyer, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of Florida. Before TJOFLAT, Chief Judge, KRAVITCH and EDMONDSON, Circuit Judges. PER CURIAM: 1 The appellant challenges the sentences she received in this cocaine-trafficking case because the district court, in fashioning her sentences, took into account the cocaine involved in an offense of which she had been acquitted. We affirm. 2 The indictment charged appellant in count one with a conspiracy involving more than 500 grams of cocaine, and in counts two and three, respectively, with possession of two kilograms and three kilograms of cocaine with intent to distribute. The jury convicted her on counts one and two and acquitted her on count three. At sentencing, the district court grouped counts one and two pursuant to Sentencing Guidelines Sec. 3D1.2(b)(1) (Nov. 1, 1990), and, in calculating the base offense level, considered the three kilograms of cocaine involved in count three. Appellant contends that linking her to this cocaine for sentencing purposes was "contrary to the foundation upon which the entire justice system is based; that the jury's verdict [on count three] must be honored"; and that she was denied due process. We disagree. 3 This court has held that "an acquittal does not bar a sentencing court from considering the acquitted conduct in imposing sentence." United States v. Funt, 896 F.2d 1288, 1300 (11th Cir.1990) (pre-guidelines case). Although, in this case, the Government did not prove all of the elements of the count-three offense beyond a reasonable doubt, the district court was not precluded from considering the facts underlying the offense at sentencing if those facts were established by reliable evidence.* United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989) (per curiam); see also United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989) (that defendant was acquitted at trial of firearm count did not preclude consideration of possession of firearm to enhance cocaine offense). 4 In a drug-trafficking case, the guidelines clearly mandate that the defendant's sentence be based on the total quantity of drugs involved in the transaction if they "were part of the same course of conduct or common scheme or plan as the offense of conviction." Sentencing Guidelines Sec. 1B1.3(a)(2) (Nov. 1, 1990); see also id. Sec. 2D1.4 application note 1 (Nov. 1987) ("If the defendant is convicted of a conspiracy that includes transactions in controlled substances in addition to those that are the subject of substantive counts of conviction, each conspiracy transaction shall be included with those of the substantive counts of conviction to determine scale."); id. Sec. 1B1.3 application note 1 (Nov. 1987) ("In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant 'would be otherwise accountable' also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant."). 5 The appellant concedes her involvement with the three kilograms of cocaine in count three of the indictment. Indeed, there is no doubt that appellant was connected with all of the cocaine used to calculate her base-offense level: she had two kilograms of cocaine in her purse at the time of her arrest (count two), she led police to her sister and brother-in-law's house where the additional three kilograms were found (count three); her brother-in-law stated that he was storing the cocaine for appellant and that he had acted as counter-surveillance for her while she transacted a cocaine deal; and both lots of cocaine were of approximately the same purity. In sum, notwithstanding the jury's not-guilty verdict on count three, the district court correctly considered the entire amount of cocaine in fashioning appellant's sentences. 6 AFFIRMED. * In this circuit, the relevant facts at sentencing need only be established by a preponderance of the evidence. United States v. Ignancio Munio, 909 F.2d 436, 439 (11th Cir.1990) (per curiam)	{ "pile_set_name": "FreeLaw" }
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/01/2019 01:06 AM CST - 929 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR Cite as 301 Neb. 929 Thomas Grady Photography, Inc., appellee, v. A mazing Vapor, Ltd., et al., appellees, and Thomas J. A nderson, appellant. ___ N.W.2d ___ Filed December 21, 2018. No. S-17-818. supplemental opinion Appeal from the District Court for Douglas County, Gregory M. Schatz, Judge, on appeal thereto from the County Court for Douglas County, Stephanie R. H ansen, Judge. Supplemental opinion: Motion of appellee for attorney fees sustained. Thomas J. Anderson, P.C., L.L.O., pro se. Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., for appellee Thomas Grady Photography, Inc. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Per Curiam. Appellee, Thomas Grady Photography, Inc. (Grady Photography), has moved under Neb. Ct. R. App. P. § 2-106 (rev. 2012) for attorney fees associated with the unsuccessful appeal to this court by appellant, Thomas J. Anderson. An affi- davit and itemized legal bill claims $6,866 in attorney fees for work performed by Grady Photography’s attorney in connec- tion with this appeal. Because Grady Photography is entitled to appellate attorney fees under Neb. Rev. Stat. § 25-1801 - 930 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR Cite as 301 Neb. 929 (Reissue 2016), as amended by 2018 Neb. Laws, L.B. 710, we award Grady Photography $6,866. As recited more fully in our opinion Thomas Grady Photography v. Amazing Vapor, ante p. 401, 918 N.W.2d 853 (2018), Grady Photography was hired to perform photogra- phy services related to the products of Amazing Vapor, Ltd. Amazing Vapor, Manuel Guillermo Calderon, and Anderson refused to pay for the services. The unpaid bill for photogra- phy services rendered totaled $2,400. The county court at trial and the district court on appeal essentially found that Anderson breached the oral contracts for Grady Photography’s services. We affirmed. Id. As a general rule, attorney fees and expenses are recover- able only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees. In re Estate of Graham, ante p. 594, 919 N.W.2d 714 (2018). Section 25-1801 applies to this case where there has been an unpaid claim for payment for photography services of $2,400. Section 25-1801, as amended, provides in part: (1) On any lawsuit of four thousand dollars or less, regardless of whether the claims are liquidated or assigned, the plaintiff may recover costs, interest, and attorney’s fees in connection with each claim as provided in this section. If, at the expiration of ninety days after each claim accrued, the claim or claims have not been paid or satisfied, the plaintiff may file a lawsuit for pay- ment of the claim or claims. If full payment of each claim is made to the plaintiff by or on behalf of the defendant after the filing of the lawsuit, but before judgment is taken, except as otherwise agreed in writing by the plain- tiff, the plaintiff shall be entitled to receive the costs of the lawsuit whether by voluntary payment or judgment. If the plaintiff secures a judgment thereon, the plaintiff shall be entitled to recover: - 931 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR Cite as 301 Neb. 929 (a) The full amount of such judgment and all costs of the lawsuit thereon; (b) Interest at the rate of six percent per annum. Such interest shall apply to the amount of the total claim begin- ning thirty days after the date each claim accrued, regard- less of assignment, until paid in full; and (c) If the plaintiff has an attorney retained, employed, or otherwise working in connection with the case, an amount for attorney’s fees as provided in this section. (2) If the cause is taken to an appellate court and the plaintiff recovers a judgment thereon, the appellate court shall tax as costs in the action, to be paid to the plaintiff, an additional amount for attorney’s fees in such appellate court as provided in this section, except that if the plain- tiff fails to recover a judgment in excess of the amount that may have been tendered by the defendant, then the plaintiff shall not recover the attorney’s fees provided by this section. (3) Attorney’s fees shall be assessed by the court in a reasonable amount, but shall in no event be less than ten dollars when the judgment is fifty dollars or less, and when the judgment is over fifty dollars up to four thou- sand dollars, the attorney’s fee shall be ten dollars plus ten percent of the judgment in excess of fifty dollars. (4) For purposes of this section, the date that each claim accrued means the date the services, goods, mate- rials, labor, or money were provided, or the date the charges were incurred by the debtor, unless some different time period is expressly set forth in a written agreement between the parties. (Emphasis supplied.) We have described the foregoing section as follows: [This] section provides that a claimant with a claim amounting to less than $4,000 for, among other things, services rendered, may present that claim to the allegedly - 932 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR Cite as 301 Neb. 929 liable party and then, if the claim is not paid within 90 days, sue for the amount of the original claim and addi- tional costs, interest, and attorney fees. Thomas & Thomas Court Reporters v. Switzer, 283 Neb. 19, 29, 810 N.W.2d 677, 686 (2012). Given the terms of § 25-1801 and the facts of this case, we determine that the appellate attorney fees incurred by Grady Photography of $6,866 are reasonable. This court sustains Grady Photography’s motion and awards Grady Photography attorney fees of $6,866 to be paid by Anderson. Motion of appellee for attorney fees sustained.	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 01-10491 _____________________ In The Matter Of: FIRST CITY BANCORPORATION OF TEXAS INC., Debtor. JERRY KRIM; HAROLD L. HARRIS, Individually and as Trustee of Mazel Inc. Profit Sharing Plan; GROUP OF SECURITIES LITIGATION CLAIMANTS; HARVEY GREENFIELD, Appellants, versus FIRST CITY BANCORPORATION OF TEXAS INC., Appellee. _________________________________________________________________ Appeal from the United States District Court for the Northern District of Texas March 5, 2002 Before JOLLY, SMITH, and BENAVIDES, Circuit Judges. PER CURIAM: After listening to the oral arguments of the parties and closely examining the record, we conclude that the sanctioned lawyer in this case, Harvey Greenfield, was appropriately sanctioned by the bankruptcy court. His attitude and remarks toward opposing attorneys, opposing parties, and the bankruptcy court were -- to understate his conduct -- obnoxious. Although incivility in and of itself is call for concern, what is most 1 disconcerting here is the rationale Greenfield gives for his behavior. Greenfield asserts that his deplorable and wholly unprofessional conduct helps him recover more money for his clients. Unremorsefully and brazenly, Greenfield contends that his egregious behavior serves him well in settlement negotiations and is therefore appropriate. Because we find that the bankruptcy court did not abuse its discretion when it issued sanctions in this case, we affirm the district court’s judgment affirming the bankruptcy court’s sanction order. I In 1990, Jerry Krim, Harold L. Harris, and several other claimants filed a class action lawsuit against FirstCity Bancorporation of Texas Inc. (“FirstCity”), its officers and directors, and Donaldson, Lufkin & Jenrette Securities Corporation. Greenfield represented the plaintiff class. In 1992, the parties reached a $20 million dollar settlement. The settlement, however, was set aside when federal regulators seized control of FirstCity’s assets. FirstCity then filed a bankruptcy petition under Chapter 11. Greenfield pursued the claims of the plaintiff class in bankruptcy, reaching a settlement agreement with FirstCity for over $10 million in cash and stock. FirstCity incorporated this settlement agreement into its Joint Plan for Reorganization. FirstCity then filed a motion to sanction Greenfield, based in part on his conduct during a July 13, 1995 deposition when 2 Greenfield deposed A. Robert Abboud, a director of FirstCity and a claimant in bankruptcy for indemnification of legal expenses. Abboud was represented by Hyman Schaffer. One day before the deposition, the bankruptcy judge conducted a telephone conference with Schaffer, Greenfield, and Kenneth Carroll (counsel for FirstCity Liquidating Trust). During this hearing, the bankruptcy court directed the parties to restrict the deposition to issues pertinent to Abboud’s indemnification claim. The bankruptcy court also denied Greenfield’s motion for leave to refer to a confidential report compiled by Baker & Botts for the audit committee at FirstCity. Finally, the bankruptcy court urged Greenfield not to engage in personal attacks during the deposition. At the deposition, in apparent defiance of the bankruptcy court’s order, Greenfield used the Baker & Botts report in the questioning of Abboud. Also during the deposition, the parties continued to disagree about the proper scope of the deposition inquiry. So, they again went to bankruptcy court to clarify the exact issues to be covered at the deposition. At this second telephone hearing, the bankruptcy court once more cautioned Greenfield to refrain from personal attacks. Despite these multiple warnings, during the deposition Greenfield stated that “I am going to have Mr. Abboud indicted.” He also accused Schaffer of having been fired from Sullivan and Cromwell. 3 Greenfield’s obnoxious behavior, however, was not limited to Abboud’s deposition. Some of the other statements made by Greenfield during the bankruptcy proceeding -- noted by both the district court and the bankruptcy court -- are the following: ! He characterized other attorneys, including an Assistant United States Attorney, as (1) a “stooge”; (2) a “puppet”; (3) a “weak pussyfooting ‘deadhead’” who “had been ‘dead’ mentally for ten years”; (4) “various incompetents”; (5)“inept”; (6) “clunks”; (7) “falling all over themselves, and wasting endless hours”; (8) “a bunch of starving slobs”; and (6) an “underling who graduated from a 29th-tier law school.” ! He called the chairman of FirstCity a “hayseed” and a “washed- up has been,” and he also called other FirstCity directors “scoundrels.” ! He referred to one law firm, Carrington, Coleman, Sloman & Blumenthal, L.L.P. as “stooges” of another law firm, Vinson & Elkins, L.L.P. ! He referred to the work of other attorneys as “garbage” that demonstrated “legal incompetence” while involving “ludicrous additional time and expense.” ! He asserted that Vinson & Elkins was using FirstCity as a “private piggybank.” ! He described an executive compensation plan approved by the bankruptcy court as a “bribe.” The bankruptcy court found that Greenfield’s “egregious, obnoxious, and insulting behavior ... constituted an unwarranted imposition upon and an affront to [the bankruptcy court] and the parties and practitioners who have appeared in this bankruptcy that should not have to be endured in the future.” Accordingly, the bankruptcy court imposed a monetary sanction of $22,500 and barred Greenfield from practicing in the bankruptcy courts of the Northern 4 District of Texas unless he first obtained written permission from the court. Greenfield appealed the sanction order to the district court. Meanwhile, in an unrelated appeal that involved sanctions against Greenfield for not conducting a reasonable inquiry into the facts before filing a pleading, we reversed the sanctions. Krim v. BancTexas Group, Inc., 99 F.3d 775 (5th Cir. 1996). In the light of this decision, the district court remanded the case to the bankruptcy court for reconsideration. On remand, the bankruptcy court removed the sanction that barred Greenfield from practicing in the Northern District’s bankruptcy courts but maintained the monetary penalty. In addition, the court increased the penalty by $2,500 “in light of the other findings and conclusions and because Mr. Greenfield filed a motion seeking to have this Court lift all sanctions against him ... and therefore caused counsel for FirstCity Liquidating Trust, A. Robert Abboud, and Mr. Schaffer to devote time in appearing and responding to that motion....” Greenfield appealed to the district court, which affirmed. Greenfield now appeals the district court’s decision. II We review the bankruptcy court's findings of fact under the clearly erroneous standard and decide issues of law de novo. Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th 5 Cir. 1994), cert. denied, 513 U.S. 1014 (1994). The imposition of sanctions is discretionary -- thus, we review the exercise of this power for abuse of discretion. Matter of Terrebonne Fuel and Lube, Inc., 108 F.3d 609, 613 (5th Cir. 1997). “A court abuses its discretion when its ruling is based on an erroneous view of the law or on a clearly erroneous	{ "pile_set_name": "FreeLaw" }
ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Parwan Group Company ) ASBCA No. 60657 ) Under Contract No. SP0600-13-D-9504 ) APPEARANCES FOR THE APPELLANT: Eric S. Montalvo, Esq. Lauren R. Brier, Esq. The Federal Practice Group Worldwide Service Washington, DC APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Matthew Vasquez, Esq. Trial Attorney DLA Energy Fort Belvoir, VA OPINION BY ADMINISTRATIVE JUDGE D'ALESSANDRIS ON THE GOVERNMENT'S MOTION FOR PARTIAL DISMISSAL FOR LACK OF JURISDICTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Appellant Parwan Group Company (Parwan) appeals from a contracting officer's final decision denying its claim for unanticipated security costs arising out of a fuel delivery contract in Afghanistan. The Defense Logistics Agency-Energy (DLA) moves for partial dismissal for lack of jurisdiction, alleging that portions of Parwan's complaint raise claims that were not presented to the contracting officer for final decision prior to the filing of Parwan's appeal. DLA also moves to dismiss the entire appeal for failure to state a claim upon which relief can be granted. Parwan opposes the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION On 23 April 2012, DLA issued Solicitation No. SP0600-12-R-0208 (solicitation) seeking proposals for the transportation of government-owned fuel products in Afghanistan (R4, tab 1 at 47). 1 Amendment No. 0005 to the solicitation 1 Citations to the Rule 4 file are to the consecutively-numbered pages unless otherwise indicated. contained answers to questions from offerors about a number of issues, including three related to convoy security (R4, tab 2 at 93-94). 2 In response to those security questions, DLA informed offerors that "vendors considering the use of armed private security will not be considered for award" (id. at 94). Offerors were also informed that there would be "no US Government provided escorts" for the contractor-provided services (id.). Parwan interpreted those responses to mean that the use of security for any particular convoy would be left to the contractor's discretion, and that "if [the contractor] did not provide security [it] bore the risk of non-performance for each unsuccessful shipment" (compl. ,r 8). Accordingly, when Parwan submitted its proposal on 27 June 2012, it did not include costs for convoy security (id. ,r,r 8, 58). On 28 November 2012, DLA awarded Contract No. SP0600-13-D-9504 (contract) to Parwan (R4, tab 6 at 1). This fixed-price commercial item contract consisted of a two-year base period from the date of award through 31 December 2014, and a one-year option period from 1 January 2015 through 31 December 2015, for a total estimated contract value of $12,902,090 (R4, tab 6 at 126-27; gov't mot. at 1-2). The contract included Federal Acquisition Regulation (FAR) clause 52.243-1, CHANGES-FIXED-PRICE (AUG 1987), ALTERNATE IV (APR 1984), which states in relevant part: (a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following: (1) Specifications. (2) Work or services. (3) Place of origin. (4) Place of delivery. (5) Tonnage to be shipped. (6) Amount of Government-furnished property. (b) If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Contracting Officer shall make an equitable adjustment in the contract 2 When receiving a motion to dismiss for lack of jurisdiction, the facts supporting jurisdiction are subject to fact-finding based on the Board's review of the records. See, e.g., CCJE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ,r 35,700 at 174,816. 2 price, the delivery schedule, or both, and shall modify the contract. (R4, tab 6 at 143) The contract also included two clauses relevant to Parwan's performance under this contract - clause 952.225-0004, COMPLIANCE WITH LA ws AND REGULATIONS (DEC 2011); and clause 252.225-7995, CONTRACTOR PERSONNEL PERFORMING IN THE UNITED STA TES CENTRAL COMMAND AREA OF RESPONSIBILITY {DEVIATION 2011-00004) (APR 2011) (R4, tab 6 at 133, 147). These clauses imposed upon Parwan two key obligations. First, under both clauses, Parwan was required to comply with all host nation laws (id.). Second, under clause 252.225-7995( c ), "[u ]nless specified elsewhere in the contract, the Contractor is responsible for all logistical and security support required for contractor personnel engaged in this contract" ( id. at 147). The contract's performance work statement (PWS) reiterated Parwan's obligation to comply with host nation laws, stating that Parwan must "remain in full compliance with all laws, decrees, labor standards, and regulations of the Afghanistan Government" (R4, tab 1 at 47). The PWS also stated that the U.S. Government "will not provide security escort for trucks transporting fuel product in Afghanistan" (id. at 48). In February 2013, after Parwan began making deliveries, the Afghan government issued a decree stating that all convoys delivering fuel for the U.S. Government using "southern routes" would henceforth be required to use security escorts (R4, tab 29 at 492, 586). The decree further stated that private companies were no longer authorized to provide security escorts, and that Parwan would be required to use the security services of the Afghan Public Protection Force (APPF), a state-owned enterprise of the Afghan Ministry of the Interior (id.). By email dated 7 March 2013, Parwan informed DLA that the new requirement to use security escorts had caused security costs for all companies transporting fuel for the U.S. Government to "skyrocket," and that for Parwan in particular, the increased costs had become "almost prohibitive" (app. supp. R4, tab 38 at 4). By email dated 8 March 2013, DLA advised Parwan that it was working "to find a payment solution" (id. at 3). On 24-25 April 2013, representatives from DLA and Parwan met to discuss the increased security costs and the possibility of Parwan filing a request for equitable adjustment (REA). Pursuant to that meeting, DLA instructed Parwan to submit an REA "for the change to the method of shipping and the attendant increase in costs incurred by Parwan." (Compl. ,r,r 15-16) By email dated 26 May 2013, Parwan notified DLA that it was experiencing delays in delivery that it attributed to the 3 I security escorts (app. supp. R4, tab 39). The parties thereafter exchanged additional emails discussing the delays, with DLA twice requesting information from Parwan concerning its "issues" with APPF (R4, tabs 10-11; app. supp. R4, tabs 40-43). By email dated 17 June 2013, DLA also requested that Parwan advise it of what actions could be taken by DLA to "alleviate the delays in delivery" (app. supp. R4, tab 42). It is unclear whether Parwan ever responded to this request. By email dated 11 July 2013, DLA requested additional information regarding Parwan's working relationship with APPF, including "systemic problems" regarding scheduling and cancellations. Parwan responded that same date, stating with respect to the systemic problems that "(w]e do not really get told why a convoy is cancelled, usually the reason given is security, we do know at times that they do not always have the assets available." (App. supp. R4, tab 46 at 53, 55) In July 2013, Parwan submitted two REAs to	{ "pile_set_name": "FreeLaw" }

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