Datasets:

suolyer

/

pile_freelaw

like 0

Matter of Amira W.H. (Tamara T.H.) (2020 NY Slip Op 02264) Matter of Amira W.H. (Tamara T.H.) 2020 NY Slip Op 02264 Decided on April 9, 2020 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 April 9, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. RUTH C. BALKIN SHERI S. ROMAN BETSY BARROS, JJ. 2018-10602 (Docket No. B-689-16) [*1]In the Matter of Amira W. H. (Anonymous). SCO Family of Services, petitioner-respondent; Tamara T. H. (Anonymous), appellant, et al., respondent. Brooklyn Defender Services, Family Defense Practice, Brooklyn, NY (Amy Mulzer, Zainab Akbar, and Winston & Strawn, LLP [Marcelo M. Blackburn], of counsel), for appellant. Carrieri & Carrieri, P.C., Mineola, NY (Ralph R. Carrieri of counsel), for petitioner-respondent. Kenneth M. Tuccillo, Hastings-on-Hudson, NY, attorney for the child. DECISION & ORDER In a proceeding pursuant to Social Services Law § 384-b, the mother appeals from an order of fact-finding and disposition of the Family Court, Kings County (Elizabeth Barnett, J.), dated July 31, 2018. The order, insofar as appealed from, after fact-finding and dispositional hearings, found that the mother permanently neglected the subject child, terminated her parental rights, and transferred guardianship and custody of the subject child to the Commissioner of Social Services of the City of New York and the petitioner for the purpose of adoption. ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for further proceedings in accordance herewith. The mother failed to appear on June 20, 2018, when continued fact-finding on the permanent neglect petition was scheduled, and an adjournment was granted. When the mother failed to appear on the next hearing date, June 27, 2018, the mother's counsel stated that she would be participating in the proceeding on the mother's behalf and sought to admit into evidence certain documents. Contrary to the contention of the petitioner and the attorney for the child, the mother was, therefore, not in default with respect to the fact-finding hearing (see Matter of Hope K.W. [Aminta I.], 96 AD3d 864, 864-865; Matter of Amber Megan D., 54 AD3d 338, 338; Matter of Tyrell M., 283 AD2d 500, 501; Matter of Vanessa M., 263 AD2d 542, 543; Matter of Geraldine Rose W., 196 AD2d 313, 318). The Family Court's refusal to permit the mother's counsel to admit into evidence the documentary evidence on behalf of the mother based upon the mother's failure to appear on June 27, 2018, violated the mother's right to due process. " A parent has a right to be heard on matters [*2]concerning her [or his] child and the parent's rights are not to be disregarded absent a convincing showing of waiver'" (Matter of Tyrell M., 283 AD2d at 501, quoting Matter of Cleveland W., 256 AD2d 1151, 1151 [internal quotation marks omitted]; see Matter of Patricia C., 63 AD3d 1710, 1711; Matter of Dominique L.B., 231 AD2d 948, 948). Here, there was no showing that the mother waived her right to be heard (see Matter of Patricia C., 63 AD3d at 1711; Matter of Tyrell M., 283 AD2d at 501; Matter of Dominique L.B., 231 AD2d at 948). Accordingly, we reverse the order of fact-finding and disposition insofar as appealed from and remit the matter to the Family Court, Kings County, to allow the mother an opportunity to renew her application to admit into evidence the subject documents at a reopened fact-finding hearing, if she be so advised, and, if warranted, for new findings of fact with respect to the mother and a new disposition thereafter. RIVERA, J.P., BALKIN, ROMAN, and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER WITHDRAWING MEDIATION ORDER Cause number: 01-18-00577-CV Style: Shatish Patel, M.D., Hemalatha Vijayan, M.D., Subodh Sonwalkar, M.D., and Wolley Oladut, M.D. v. St. Luke's Sugar Land Partnership, L.L.P. Appellee, St. Luke's Sugar Land Partnership, L.L.P. has objected to mediation. The Court’s mediation order dated August 3, 2018 is withdrawn. Judge's signature: /s/ Michael Massengale Acting individually Date: August 14, 2018 * Absent emergency or a statement that the motion is unopposed, must wait ten days before acting on motion except for motion to extend time to file a brief. See TEX. R. APP. P. 10.3(a). Note: Single justice may grant or deny any request for relief properly sought by motion, except in a civil case a single justice should not: (1) act on a petition for an extraordinary writ or (2) dismiss or otherwise determine an appeal or a motion for rehearing. TEX. R. APP. P. 10.4(a). 

120 F.3d 265 Simsv.Hartford Accident* NO. 96-60701 United States Court of Appeals,Fifth Circuit. June 30, 1997 Appeal From: N.D.Miss. ,No.3:96CV014D 1 Affirmed. * Fed.R.App.P. 34(a); 5th Cir.R 34-2

265 F.Supp.2d 385 (2003) In re CURRENCY CONVERSION FEE ANTITRUST LITIGATION. Nos. MDL 1409, M 21-95. United States District Court, S.D. New York. July 7, 2003. *390 MEMORANDUM AND ORDER PAULEY, District Judge. This action consolidates for centralized pretrial proceedings more than twenty putative class actions filed in this Court or transferred here by the Judicial Panel on Multidistrict Litigation. The underlying complaints challenge alleged foreign currency conversion policies by VISA and MasterCard, the two largest credit card networks, and their member banks, including Citigroup, Inc., Bank of America Corporation, Bank One Corporation, J.P. Morgan Chase & Company, Providian Financial Corp., and Household International, Inc. A Revised Consolidated Amended Class Aetion Complaint ("Complaint" or "Compl.") asserts violations of the Sherman Act, 15 U.S.C. § 1 et seq., arising out of alleged price-fixing conspiracies by and *391 among VISA, MasterCard, their member banks, and Diners Club concerning foreign currency conversion fees. The Complaint also asserts claims for violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., in the banks' disclosures to their customers. The defendants move to dismiss the Complaint. In addition, some defendants move to compel arbitration. For the following reasons, the motion to dismiss is denied in part and granted in part, and the motion to compel arbitration is granted. Background On a motion to dismiss, the allegations in the Complaint are accepted as true. There are various payment alternatives in the consumer payment card industry. One involves payment vehicles known as "general purpose cards." They enable consumers to purchase goods or services from a merchant without directly accessing or reserving funds at the time of the purchase. (Compl.śś 7, 81.) There are two primary types of general purpose cards: "credit cards" and "charge cards." Holders of credit cards receive a line of credit from the credit card issuer (generally a bank), and are permitted to charge purchases to their credit cards. Then, they may elect to pay the entire amount due within a fixed period of time, or alternatively pay a portion of the amount and finance the remainder over time. (Compl.śś 8, 81.) In contrast, holders of charge cards are required to pay the entire amount due within a set number of days after receiving a monthly billing statement. (Compl.śś 9, 81.) A general purpose card transaction includes several different parties: (1) the consumer cardholder; (2) the third-party merchant who accepts the card as payment for goods and/or services; (3) the network association or corporation that owns and operates the network processing the transactions; (4) the bank that issues the card to the consumer; and (5) the bank that contracts with the merchant to accept the card. (Compl.11179, 82.) A typical transaction entails the following: a merchant accepts a credit card from a customer for the provision of goods and services. The merchant then presents the card transaction data to an "acquirer," typically a bank, for verification and processing. The acquirer presents the transaction data to the association which, in turn, contacts the issuer to check the cardholder's credit line. The issuer then indicates to the association that it authorizes or denies the transaction. The association relays the message to the merchant's acquirer, who then relays the message to the merchant. If the transaction is authorized, the merchant will submit a request for payment to the acquirer, which relays the request, via the association, to the issuer. The issuer pays the acquirer; [and finally] the acquirer pays the merchant and retains a percentage of the purchase price for its services which is shared with the issuer. (Compl.ś 83.) A. VISA and MasterCard Associations VISA and MasterCard are the two largest general purpose card networks in the world. (Compl.ś 86.) Those networks are owned by defendants VISA U.S.A., Inc. ("VISA U.S.A.") and VISA International Service Association ("VISA International") (collectively "VISA"), and defendant MasterCard International, Incorporated ("MasterCard"), respectively. VISA and MasterCard are joint ventures or membership associations owned and operated by their member banks. (Compl.śś 35, 38, 90.) Their networks execute transactions that use one of their affiliated general *392 purpose cards. (Compl.ś 79.) In turn, member banks are authorized to issue VISA and MasterCard branded general purpose cards. They are also granted rights similar to those of a shareholder in a corporation, including the right to vote for a board of directors, participate in the governance of the association, and receive dividends. (Compl.śś 35, 38, 92.) The memberships of the VISA and MasterCard associations are virtually identical reflecting a ninety-five percent (95%) overlap. (Compl.ś 94.) All the defendants in this action, either directly or through a subsidiary or affiliate, are members of both VISA and MasterCard, and issue some type of general purpose card. (Compl.śś 13, 92.) Defendant Citigroup, Inc. ("Citigroup") issues Citibank VISA and MasterCard credit cards, AT & T Universal VISA and MasterCard credit cards, and Diners Club charge cards. (Compl.śś 41.) Citigroup issues its Citibank cards through its wholly-owned subsidiary defendant Citibank (South Dakota) N.A. ("Citibank (South Dakota)"). (Compl.śś 41-42.) The AT & T Universal credit cards are issued through Citigroup's wholly-owned subsidiaries defendants Universal Financial Corp. and Universal Bank, N.A. Citigroup's Diners Club charge cards are issued through its wholly-owned subsidiary Citibank (South Dakota), and Citibank (South Dakota)'s wholly-owned subsidiary defendant Citicorp Diners Club, Inc. ("Diners Club"). (Compl.śś 41, 43-44, 47-48.) Defendant Bank of America Corporation ("BOA Corp.") issues its VISA and MasterCard credit cards through its whollyowned subsidiary defendant Bank of America, N.A. (USA) ("BOA"). (Compl.HH 49-50.) Defendant Bank One Corporation ("Bank One") issues its VISA and MasterCard credit cards through its subsidiary defendant First USA Bank, N.A ("First USA"). (Compl.śś54-55.) Defendant J.P. Morgan Chase & Co. ("J.P. Morgan Chase") issues its VISA and MasterCard credit cards through its whollyowned subsidiaries defendant Chase Manhattan Bank USA, N.A. and defendant The Chase Manhattan Bank. (Compl.śś 59-60.) Defendant Providian Financial Corp. ("Providian") issues its VISA and Master-Card credit cards through its whollyowned subsidiaries defendant Providian National Bank and defendant Providian Bank. (Compl.śś 64-65.) Defendant Household International, Inc. ("Household") issues its VISA and MasterCard credit cards through its wholly-owned subsidiary defendant Household Finance Corporation. (Compl.śś 66-68.) Defendant MBNA Corporation ("MBNA Corp.") issues its VISA and MasterCard credit cards through its wholly-owned subsidiary defendant MBNA America Bank, N.A. ("MBNA"). (Compl.śś 70-71.) Collectively these defendants and their subsidiaries and affiliates are referred to as the "Issuing Banks." (Compl.śś 13, 84.) Both VISA and MasterCard are controlled by a select group of their member banks, which include the Issuing Banks. (Compl.ś 91.) These banks established control by concurrent service on the board of directors and/or important committees of either or both associations. (Compl.ś 91.) In fact, plaintiffs allege that nearly all of the largest card-issuing member banks have had or currently have a representative of their bank on the board of directors or an important policy-influencing committee of both VISA and MasterCard. (Compl.ś 95.) For example, in 1996 seventeen of the twenty-seven banks on MasterCard's Business Committee also had a representative on VISA's Marketing Advisors Committee. Also, twelve of the twenty-one banks with a representative on VISA's board of directors had a representative on MasterCard's Business Committee. *393 (Compl.ś 95.) In sum, as of year-end 1996, nineteen banks, including defendants J.P. Morgan Chase, Citigroup, and BOA, had a representative on the board of directors of either VISA or MasterCard and a representative on at least one important committee of the other association. (Compl.ś 96.) Further, the members of VISA and MasterCard are allocated voting and dissolution rights in relation to the total dollar volume of transactions that member transmits through the particular association. The top ten issuers of VISA and Master-Card cards account for a substantial majority of the total volume of credit card purchases. The Issuing Banks are seven of the top ten issuers of VISA and Master-Card credit cards. In the third quarter of 2001, the seven Issuing Banks accounted for $347 billion in receivables compared to $114 billion for the other forty-three issuers that make up the top fifty issuers of VISA and MasterCard cards. (Compl.ś 93.) In effect, plaintiffs allege, the Issuing Banks control both VISA and MasterCard. (Compl.śś 74, 95.) As an illustration of this so-called "dual governance," plaintiffs quote MasterCard's Executive Vice President and General Counsel in a 1992 letter to the Department of Justice, as follows: "when one board acts with respect to a matter, the results of those actions are disseminated to the members which are members in both organizations. As a result, each of the associations is a fishbowl and officers and board members are aware of what the other is doing, much more so than in the normal corporate environment." (Compl.ś 97.) B. The Currency Conversion Fees VISA and MasterCard's electronic networks and settlement systems serve as clearinghouses for general purpose card transactions in foreign countries using cards issued by their member banks. (Compl.ś 99.) This allows cardholders from the United States to purchase goods or services in foreign countries in that country's currency. (Compl. 99.) That amount is then converted to U.S. dollars by the respective network and billed to the United States cardholder in U.S. dollars. The prevailing conversion rate for the applicable foreign currency is applied to the cardholders' transactions. (Compl.śś 79, 85.) As part of the conversion, cardholders are charged a currency conversion fee ranging from at least one percent (1%) to at most three percent three percent (3%) of the cost of the purchase. (Compl.śś 1, 12, 102.) However, plaintiffs allege that this fee is charged whether or not currency is actually converted or exchanged. (Compl.ś 12, 100.) More specifically, plaintiffs allege that the procedure VISA and MasterCard use to process all foreign currency transactions, sometimes referred to as "netting out," often leads to the bulk of foreign currency transactions being conducted without an actual purchase or sale of any foreign currency. (Compl.ś 100.) Plaintiffs offer the following example: "if 100 U.S. VISA cardholders in France charge U.S. $10,000 in French francs in goods on March 26, 2001, and 100 French VISA cardholders in the U.S. spend the equivalent of U.S. $10,000 on the same day, defendant VISA does not actually convert any currency." (Compl.ś 100.) VISA and MasterCard automatically impose this currency conversion fee on the cardholder at the network level. (Compl.ś 99.) There are two tranches of currency conversion fees charged by VISA and Master-Card. The first, which plaintiffs label the "first tier" fee, is charged by VISA and MasterCard at an identical 1% of the purchase *394 price. (Compl.ś 102.) This 1% first tier fee is paid by the cardholder and retained by the respective associations. (Compl.śś 102,107.) The "second tier" fee is "typically" two percent (2%), and is often charged on top of the 1% first tier fee. (Compl.ś 102.) This 2% second tier fee is automatically charged by the network, paid by the cardholder, and retained by the cardholder's issuing bank, (Compl.śś 99,102.) 1. First Tier Fee In the 1980's VISA and MasterCard began to impose the first tier fee, and made it payable by the cardholders, not the member banks. (Compl.śś 103, 104.) Plaintiffs contend that although the member banks generally compete against each other on many price terms, such as interest rates, annual fees, and services charged through VISA and MasterCard, they colluded to charge a floor price of 1% as a first tier currency conversion fee. (Compl. ś 106.) Plaintiffs specifically allege that VISA, MasterCard, and their member banks horizontally fixed the amount of this first tier fee, both within and between the associations. (Compl.ś 105.) The first tier fee has been extremely profitable to VISA and MasterCard. (Compl.ś 107.) Plaintiffs claim that there is no nexus between any purported transaction cost to the VISA or MasterCard networks, or the value of the transaction itself, and the imposition of the first tier fee. The first tier fee is far higher than the nominal transaction cost incurred by the associations. (Compl.ś 108.) The Complaint alleges that the common control of VISA and MasterCard by the largest member banks, and the common issuance of VISA and MasterCard branded cards by those same banks provides the inter-association communication necessary to fix and maintain the fee. (Compl.ś 109.) Indeed, plaintiffs assert that VISA communicated its intent to set the price of its currency conversion fee at 1% "in a manner calculated to reach MasterCard well in advance of implementation." (Compl.ś 110.) Specifically, plaintiffs allege that it was no more than four months prior to implementation of the 1% first tier fee that VISA first communicated its intentions to MasterCard. (Compl.ś 110.) On learning of VISA's plans, the Complaint alleges that MasterCard abandoned its plan to impose a currency conversion fee of twenty-five (25) basis points and instead imposed a 1% fee. (CompLH 110.) Plaintiffs contend that this first tier fee is neither necessary to the operation of the VISA and MasterCard networks, nor facilitates a service or product that would not otherwise exist. According to the Complaint, the fee does not enhance price competition for foreign currency transactions; rat her it eliminates it. (Compl.ś 111.) Moreover, the fee is not a cost-shifting device among VISA or MasterCard member banks. (Compl.ś 113.) As such, plaintiffs allege that its anti-competitive effect outweighs any pro-competitive benefit. (Compl.ś 112.) Further, plaintiffs allege that the first tier fee is an artificial price floor that restrains trade because the member banks of VISA and MasterCard do not compete against each other within a network, and VISA and MasterCard themselves do not compete against each other. This results in an anti-competitive restraint of trade that harms consumers and sets an artificially high fixed first tier fee. (Compl.ś 114.) Plaintiffs also contend that competition among the member banks is critical because each bank issues both VISA and MasterCard branded cards. This competition, however, is undermined by the defendants' collusion to set a fixed price for their currency conversion fees. *395 (Compl.ś 115.) Lastly, plaintiffs allege that this agreement among the defendants causes VISA and MasterCard to act as an organizational vehicle for violations of the law, and not as an efficiency-enhancing joint venture. (Compl.ś 116.) 2. Second Tier Fee According to the Complaint, the second tier fee, which "is almost pure profit to the Issuing Banks," is imposed on top of the first tier floor fixed by VISA, MasterCard, and their members. (Compl.śś 117-18.) "Typically," that second tier fee represents 2% of the foreign currency transaction. (Compl.ś 102.) The Complaint asserts that often, the rate is more than 2% of the purchase price because it is calculated based on the total amount of the foreign currency transaction including the 1% first tier fee. (Compl.ś 128.) According to plaintiffs, the Issuing Banks incur no expense in connection with the second tier fee because it is VISA and MasterCard at the network level that convert the foreign currency. (Compl.ś 118.) Plaintiffs allege that VISA and Master-Card aided and abetted their respective member banks' collection of the second tier fees by adding that fee to a cardholders' charge during the conversion process. Plaintiffs also contend that VISA and MasterCard modified their procedures to enable imposition of the second tier fee. (Compl.ś 118.) The Complaint asserts that absent collusion in the market, imposition of second tier fees would be against the economic self-interest of each Issuing Bank. (Compl.ś 119.) Thus, plaintiffs contend that the Issuing Banks would lose some of their best customers to banks that did not impose the 2% second tier fee were it not for an agreement to act in concert and the attendant concealment of that fee. (Compl.ś 119.) Finally, the Complaint alleges a steady decline in costs occasioned by rapid technological innovations, as well as a decrease in fraud rates, since the imposition of these currency conversion fees. Nevertheless, fees for foreign exchange services have increased dramatically. According to plaintiffs, the reason for such an anomalous scenario is that the fees were set collusively and free competition has been restrained. (Compl.ś 120.) 3. Diners Club Diners Club is another general purpose card electronic network and settlement system that processes Diners Club card transactions. (Compl.ś 121.) Unlike VISA and MasterCard, it is not a joint venture or member association. The Diners Club network is owned and operated by defendant Citicorp Diners Club, Inc. ("Diners Club"), which issues the Diners Club charge card. (Compl.śś 48, 121.) The Diners Club network permits U.S. cardholders to make purchases in foreign countries in that nation's currency while being billed for those foreign transactions in U.S. dollars. (Compl.ś 121.) Like VISA and MasterCard, Diners Club imposes a currency conversion fee on its cardholders' foreign currency transactions. According to the Complaint, Diners Club formerly charged a 1% fee on foreign currency transactions, but then increased that fee to 2% "in line with the recent proliferation" of second tier fees. (Compl.ś 122.) Plaintiffs allege that Diners Club "imposed [this 2% fee] ... under the price-fixed `umbrella' created by their participation in the conspiracy with the VISA and MasterCard Associations and other member banks." (Compl.ś 122.) Further, plaintiffs allege that Diners Club is an active and integral part of the conspiracy to impose currency conversion *396 fees. (Compl.ś 123.) The Complaint asserts that Diners Club's parent companies' substantial involvement in the VISA and MasterCard associations facilitates its participation in the price-fixing agreements. (Compl.ś 123.) Lastly, Diners Club's fee is alleged to be against its economic selfinterest absent an agreement with the other Citibank defendants, VISA, and Master-Card. (Compl.ś 124.) C. Non-Disclosures of the Currency Conversion Fees In substance, plaintiffs allege that VISA and MasterCard, together with their member banks, and Diners Club failed to disclose adequately the existence and amount of their currency conversion fees to their cardholders on the monthly billing statements or the solicitations and applications for the general purpose cards. (Compl.śś 125, 126.) According to the Complaint, the failure to disclose the currency conversion fees in solicitations is aggravated by the fact that the solicitations are the primary source of information to prospective cardholders about fees, finance charges, and card features. (Compl.ś 126.) Moreover, some of defendants' monthly statements report a foreign currency transaction without revealing a fee by simply listing the amount of the charge in the foreign currency and the corresponding amount in U.S. dollars. Still other statements identify a "rate" and fail to disclose the addition of currency conversion fees or the date of the conversion. (Compl.ś 127.) The Complaint also alleges that the monthly statements hindered a cardholder's ability to corroborate the conversion rate utilized on a specific transaction. For example, neither the base exchange rate nor the date of the conversion were disclosed. Further, plaintiffs assert that the statements failed to itemize separately the actual base currency conversion rate, the first tier fees, or the second tier fees. (Compl.ś 128.) According to the Complaint, the only place currency conversion fees were even partially disclosed was in the cardmember agreement or the initial disclosure statement, which were sent to cardholders when they received their cards. (Compl.ś 129.) The Complaint alleges that these "partial disclosures" obscured the fees and violated the disclosure requirements of the Truth in Lending Act ("TILA"). (Compl.ś 129.) Plaintiffs further allege that the defendants conspired through their memberships in the VISA and MasterCard associations to withhold disclosure of the currency conversion fees in solicitations and billing statements, and confusingly disclosed the fees in cardholder agreements. (Compl.ś 130.) Based on these allegations, plaintiffs bring five claims: (I) antitrust violations under Section One of the Sherman Act against all defendants; (II) antitrust violations under Section One of the Sherman Act against VISA and the Issuing Bank defendants; (III) antitrust violations under Section One of the Sherman Act against MasterCard and the Issuing Bank defendants; (IV) violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., against all defendants; and (V) violations of South Dakota Consumer Protection Statutes against defendant Citibank (South Dakota). Counts I through III assert two different theories of conspiracy. Count I alleges the first conspiracy theoryâ an "interassociation" conspiracy between and among Diners Club, VISA (together with its members), and MasterCard (together with its members), to fix currency conversion fees charged to cardholders of "no less than 1% of the transaction amount and frequently more." (Compl.śś 150,154.) *397 Counts II and III advance the second conspiracy theoryâ two separate "intra-association" conspiracies whereby VISA and MasterCard each are claimed to have conspired separately with their respective member banks to fix currency conversion fees charged to cardholders of "no less than 1% of the transaction amount" and "to facilitate and encourage institutionâ and collectionâ of second tier currency conversion surcharges." (Compl.śś 157-58.) Count IV alleges that defendants failed to properly disclose the currency conversion fees on purchases made in foreign currencies in violation of TILA disclosure requirements and the regulations promulgated thereunder in Federal Reserve Board Regulation Z, 12 C.F.R. § 226. (Compl.śś 170-71.) Plaintiffs allege that defendants VISA and MasterCard are liable for the TILA violations because they acted as agents of the Issuing Bank defendants within the meaning of TILA and Regulation Z. (Compl.śś 172-73.) Finally, plaintiffs assert that VISA and Master-Card are liable for the TILA violations because they and their member banks conspired to violate TILA, and because VISA and MasterCard aided and abetted their member banks' violations of TILA. (Compl.śś 174,176.) Defendants move to dismiss Counts I through TV for failure to state a claim on which relief may be granted. Defendants First USA, BOA, and MBNA, and their respective parent corporations join in the omnibus motion to dismiss and also move to stay the claims against them by their respective cardholders and refer those claims to arbitration. Lastly, defendants argue that the time to answer or otherwise move on the fifth cause of action is tolled by their motion to dismiss since all of the factual allegations in the Complaint are subject to the motion. Plaintiffs do not contest defendants' tolling argument, and this Court adopts it. For the following reasons, the motion to dismiss is denied in part and granted in part, and the motion to compel arbitration is granted. Discussion I. Motion to Compel Arbitration Defendants First USA; Bank One; BOA; BOA Corp.; MBNA; and MBNA Corp. move to stay all claims against them by their respective cardholders and compel arbitration of those claims pursuant to their cardmember agreements. Defendants First USA, BOA, and MBNA issue First USA, Bank of America, and MBNA credit cards, respectively. Defendants Bank One, BOA Corp., and MBNA Corp. are the parent companies of defendants First USA, BOA, and MBNA, respectively, and do not issue credit cards. (Decl. of Janet Z. Hernandez dated March 11, 2002, ś 2; Decl. of Kimberly S. Gensler dated March 18, 2002, ś 3; Decl. of Deborah L. Fisher dated March 19, 2002, ("Fisher Decl") ś 2.) When First USA, BOA, and MBNA send credit cards to their cardholders, they forward a cardholder agreement setting forth the terms of the cardholders' account. The cardholder agreement warns that any use of the credit card constitutes acceptance of the terms of the cardholder agreement. (Fisher Decl. ś 6; Decl. of Donna Barrett dated March 7, 2002, ("Barrett Decl.") śś 4-5; Decl. of Suzan R. Uhlig dated March 18, 2002, ("Uhlig Decl.") ś 9 (advising that cardholder's silence constitutes acceptance of the terms).) Although plaintiffs do not specifically allege in their Complaint which plaintiffs are cardmembers of which defendant, the parties agree on the following: (1) plaintiff Caran Ruga is the only named plaintiff to *398 have held a First USA credit card during the relevant time period; (2) plaintiff Robert Ross [1] is the only named plaintiff to have held a BOA credit card during the relevant time period; and (3) "none of the named plaintiffs have used an MBNA credit card to make purchases in a foreign country." (Letter from plaintiffs' counsel to counsel for MBNA dated Feb. 19, 2002, cited in Defs.' Mot. to Compel Arb. at 7 n. 2.) Plaintiffs acknowledge that none of the plaintiffs have an arbitration agreement with MBNA. (Pis.' Opp. to Mot. to Compel. Arb. at 1.) Thus, without an MBNA cardmember as a named plaintiff, there is no need to analyze whether any MBNA cardmember's claims belong in arbitration. Further, the fact that there are no named plaintiffs that are cardmembers of MBNA limits any possible TILA claims against MBNA to claims of secondary liability. The First USA cardholder agreement sent to plaintiff Ruga provides that "[a]ny use of your Card or Account confirms your acceptance of the terms and conditions of this Agreement." (Barrett Decl. ś5.) Plaintiff Ruga accepted the terms of the cardholder agreement by using her First USA credit card. (Barrett Decl. ś 5.) Plaintiff Ruga's cardholder agreement contains an arbitration clause that was typical of all First USA cardholder agreements, which states: Arbitration: Any claim, dispute or controversy ("Claim") by either you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or your Account, including Claims regarding the apphcability of this arbitration clause or the validity of the entire Agreement, shall be resolved by binding arbitration by the National Arbitration Forum, under the Code of Procedure in effect at the time the Claim is filed.... Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Judgement upon any arbitration award may be entered in any court having jurisdiction. This arbitration agreement applies to all Claims now in existence or that may arise in the future except for Claims by or against any unaffiliated third party to whom ownership of your Account may be assigned after default (unless that party elects to arbitrate). Nothing in this Agreement shall be construed to prevent any party's use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement. IN ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND WE MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT, AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS, BUT EXCEPT AS OTHERWISE *399 PROVIDED ABOVE, ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION. (Barrett Decl. Ex. 1.) Plaintiff Ruga's cardholder agreement also contained a choice of law provision selecting Delaware law and federal law where applicable. (Barrett Decl. Ex. 1.) Plaintiff Ross was a BOA cardholder prior to BOA's inclusion of an arbitration clause in its cardholder agreement. In February 2000, plaintiff Ross received a document titled, "Important Notice Regarding Your Account" ("Important Notice"), with his monthly account statement. The Important Notice advised him of certain changes in the cardholder agreement governing his account, and included a copy of the amended agreement. (Uhlig Decl. ś 7.) The Important Notice also informed plaintiff Ross that these modifications to the agreement would become effective unless he wrote to BOA by March 25, 2000, and requested that his account be closed. Plaintiff Ross never took that initiative. (Uhlig Decl. śś 9-10.) Among the changes to the BOA cardholder agreement was the addition of an arbitration clause. (Uhlig Decl. ś 8 & Ex. 2.) The Important Notice described the changes to the cardholder agreement and included the following: "Any claim, dispute or controversy with us, Bank of America Corporation or our affiliates, or certain other persons will be resolved by arbitration, as set forth in the Agreement. (Refer to Section 7.19.)" (Uhlig Decl. Ex. 2.) Section 7.19 of the amended cardholder agreement, as included in the Important Notice, provided: 7.19 Arbitration. Any dispute, claim, or controversy ("Claim") by or between you and us (including each other's employees, agents or assigns) arising out of or relating to this Agreement, your Account, or the validity or scope of any provision of this Agreement, including the arbitration clause shall, upon election by either you or us, be resolved by binding arbitration. Arbitration shall take place before a single arbitrator on an individual basis without resort to any form of class action. Arbitration may be selected at any time unless a judgement has been rendered or the other party would suffer substantial prejudice by the delay in demanding arbitration. Arbitration, including selection of an arbitrator, shall be conducted in accordance with the rules for arbitration of financial services disputes of JAMS .... If JAMS is unable or unwilling to serve as the provider of arbitration, we may substitute another national arbitration organization with similar procedures. This arbitration section of this Agreement shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Judgment upon arbitration may be entered in any court having jurisdiction. Arbitration shall be conducted in the federal judicial district in which your billing address is located at the time the claim is filed. If we request arbitration, we will advance applicable JAMS fees and expenses. If the arbitrator rules in favor of one party against the other, the other party shall pay all reasonable attorneys' fees and costs of the action on behalf of both parties (including any fees and expenses paid by one party on behalf of the other) unless the arbitrator or court decides such an award would cause a substantial injustice based on the facts and legal arguments set forth in the action. YOU UNDERSTAND AND AGREE THAT IF EITHER YOU OR WE ELECT TO ARBITRATE A CLAIM, THIS ARBITRATION SECTION PRECLUDES YOU AND U.S. FROM *400 HAVING A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH COURT, OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS. EXCEPT AS OTHERWISE PROVIDED ABOVE, ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION IF YOU OR WE ELECT TO ARBITRATE. (Uhlig Decl. Ex. 2.) Plaintiff Ross's cardholder agreement also contained a choice of law provision selecting Arizona law and federal law where applicable. (Uhlig Decl. Ex. 2, § 7.18.) When a contract contains a written arbitration clause and concerns a transaction involving commerce, the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1 et seq. (2003), governs. 9 U.S.C. § 2. The FAA establishes a liberal policy in favor of arbitration as a means to reduce the costliness and delays of litigation. See Campaniello Imports, Ltd. v. Saporiti Italia S.p.A, 117 F.3d 655, 664 (2d Cir.1997) (Pollack J., by designation); see also 01droyd v. Elmira Savings Bank, FSB, 134 F.3d 72, 76 (2d Cir.1998) ("There is a strong federal policy favoring arbitration as an alternative means of dispute resolution."). It is well settled that arbitration is contractual in nature, and "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf, 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (I960)); accord Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S.Ct. 588, 591, 154 L.Ed.2d 491 (2002). In accord with the strong policy favoring arbitration, federal courts read arbitration clauses as broadly as possible, and "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); accord ACE Capital Re Overseas Ltd. v. Central United Life Ins. Co., 307 F.3d 24, 29 (2d Cir. 2002); Oldroyd, 134 F.3d at 76; Collins & Aikman Prods. Co. v. Bldg. Sys., Inc., 58 F.3d 16, 19 (2d Cir.1995). Indeed, arbitration must be compelled "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." United Steelworkers, 363 U.S. at 582-83, 80 S.Ct. 1347; accord David L. Threlkeld & Co. v. Metallgesellschaft Ltd., 923 F.2d 245, 248 (2d Cir.1991); Collins & Aikman, 58 F.3d at 19. Section Two of the FAA provides that written agreements to arbitrate "shall be valid, irrevocable, and enforceable, save upon grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Section 3 of the FAA provides that the court must stay any suit or proceeding until arbitration has been completed if the action concerns "any issue referable to arbitration" under a written agreement for such arbitration. 9 U.S.C. § 3; accord Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985); McMahan Sees. Co. L.P. v. Forum Capital Mkts., L.P., 35 F.3d 82, 85 (2d Cir.1994). The FAA "leaves no place for the exercise of discretion by a district court but instead mandates that district courts shall direct the parties to proceed to arbitration on issues [on] which an arbitration agreement has been signed." E.G.L. Gem Lab, Ltd. v. Gem Quality Inst, Inc., No. 97-7102(LAK), 1998 WL 314767, at *2 (S.D.N.Y. Jun.15, 1998) (quoting Byrd 470 U.S. at 218, 105 S.Ct. 1238). *401 This Court must analyze four factors in considering a motion to compel arbitration: first, it must determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the case are arbitrable, it must then decide whether to stay the balance of the proceedings pending arbitration. Oldroyd, 134 F.3d at 75-76; accord Campaniello Imports, 117 F.3d at 665; Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir.1987). There is no dispute about the existence of an arbitration clause in both plaintiffs Ruga and Ross's cardholder agreements, and that both plaintiffs agreed to it.[2] However, there is a dispute as to who can compel arbitration. Defendants Bank One and BOA Corp. argue that plaintiffs Ruga and Ross's claims against Bank One and BOA Corp. should be referred to arbitration, despite the fact that neither of them are signatories to the arbitration agreements. Since "whether an entity is a party to the arbitration agreement also is included within the broader issue of whether the parties agreed to arbitrate," the Court will address the non-signatories issue first. Smith/Enron Cogeneration Ltd P'ship, Inc. v. Smith Cogeneration Int'l, 198 F.3d 88, 95 (2d Cir.1999). A. Non-Signatories The First USA and BOA arbitration agreements are agreements between the cardholders and First USA and BOA, respectively. Plaintiffs however, allege claims against First USA and BOA, as well as Bank One and BOA Corp., the parent companies of First USA and BOA, respectively. Defendants argue that plaintiffs should be compelled to arbitrate the claims against the parent companies as well as those against First USA and BOA. Although "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit," Howsam, 123 S.Ct. at 591 (quoting United Steelworkers, 363 U.S. at 582, 80 S.Ct. 1347), an obligation to arbitrate may not be limited to signatories to the agreement containing the arbitration provision. A non-signatory may be bound to an arbitration agreement under ordinary principles of contract and agency. See Thomson-CSF, S.A v. Am. Arbitration Ass'n, 64 F.3d 773, 776 (2d Cir.1995); Orange Chicken, L.L.C. v. Nambe Mills, Inc., No. 00 Civ. 4730(AGS), 2000 WL 1858556, at *4-5 (S.D.N.Y. Dec.19, 2000); Fluor Daniel Intercontinental, Inc. v. Gen. Elec. Co., No. 98 Civ. 7181(WHP), 1999 WL 637236, at *6 (S.D.N.Y. Aug.20, 1999). The Second Circuit has recognized five theories for binding non-signatories to *402 arbitration agreements: 1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter-ego; and 5) estoppel. See Smith/Enron Cogeneration, 198 F.3d at 97; Thomson-CSF, 64 F.3d at 776; Massen v. Cliff, No. 02 Civ. 9282(HBP), 2003 WL 2012404, at *3 (S.D.N.Y. May 1, 2003); Fluor Daniel, 1999 WL 637236, at *6. Defendants argue that the plaintiffs are estopped from avoiding arbitration with Bank One and BOA Corp.[3] Courts have bound non-signatories to arbitration agreements under an estoppel theory. Under one branch of this theory, when a non-signatory receives a direct benefit under the agreement containing the arbitration clause, it cannot avoid arbitration merely because it never signed the agreement. This branch of the estoppel theory is inapplicable here because it is the non-signatory who is trying to compel arbitration from a party. See Fluor Daniel, 1999 WL 637236, at *6. Under an alternative estoppel theory recognized by several circuits, courts have been willing to estop a signatory from avoiding arbitration with a non-signatory when the issues the non-signatory is seeking to arbitrate are intertwined with the contract. See Choctaw Gen. Ltd. P'ship v. Am. Home Assurance Co., 271 F.3d 403, 406 (2d Cir.2001); Thomson-CSF, 64 F.3d at 779; Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757-58 (11th Cir.1993); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A, 863 F.2d 315, 320-21 (4th Cir.1988); McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984); Massen, 2003 WL 2012404, at *4; Chase Mortgage Co.-West v. Bankers Trust Co., No. 00 Civ. 8150(MBM), 2001 WL 547224, at *2 (S.D.N.Y. May 23, 2001); Fluor Daniel, 1999 WL 637236, at *6. Thus, a signatory can be required to arbitrate with a non-signatory at the non-signatory's insistence because of "the close relationship between the entities involved, ... [and] the relationship of the alleged wrongs to the non-signatory's obligations and duties in the contract ... and [the fact that] the claims were `intimately founded in and intertwined with the underlying contract obligations.'" Sunkist, 10 F.3d at 757-58 (quoting Hughes Masonry Co. v. Greater Clark County School Bldg. Corp., 659 F.2d 836, 841 (7th Cir.1981)); accord Choctaw, 271 F.3d at 406; Fluor Daniel, 1999 WL 637236, at *6. Whether the claims are intertwined such that a signatory is estopped from avoiding arbitration with a non-signatory, the court must determine: (1) whether the signatory's claims arise Under the "subject matter" of the underlying agreement; and (2) whether there is a "close relationship" between the signatory and the non-signatory. Chase Mortgage, 2001 WL 547224, at *2-3; accord Choctaw, 271 F.3d at 406; Massen, 2003 WL 2012404, at *4; Orange Chicken, 2000 WL 1858556, at *5; Fluor Daniel, 1999 WL 637236, at *6. There are several principled grounds for finding estoppel in this action. First, the alleged wrongs by Bank One and BOA Corp. are "intimately founded in and intertwined with" the underlying agreement between First USA and BOA and their respective cardholders. Bank One and BOA Corp. are being sued for their respective subsidiaries' TILA violations and conspiracy to fix the prices of currency conversion fees. Both of these claims are derivative in nature in that the alleged *403 wrongdoers are First USA and BOA, and not Bank One and BOA Corp. Further, plaintiffs' claims against Bank One and BOA Corp. arise from the cardholder agreements. Specifically, it was plaintiffs' credit cards, which are the subject matter of the cardholder agreements, that were allegedly unlawfully charged fixed currency conversion fees. Also, the documents provided in connection with plaintiffs' credit card accounts were allegedly violative of the disclosure obligations in TILA. Effectively, the claims against Bank One and BOA Corp. are the same as those lodged against First USA and BOA, respectively. As such, they arise under the "subject matter" of the agreement. See Chase Mortgage, 2001 WL 547224, at *2; Fluor Daniel, 1999 WL 637236, at *6. Plaintiffs insist that they are not suing the parent companies merely based on their subsidiaries' actions, but that they also allege that the parent companies were active participants in the conspiracy. This contention, however, does not change the outcome of the analysis. Any participation by Bank One and BOA Corp. in the alleged conspiracy necessarily revolves around their respective subsidiaries' issuance of credit cards. Those credit cards and their respective accounts are at the heart of the underlying contract containing the arbitration agreement. Therefore, this Court finds that even the allegations that seek to hold Bank One and BOA Corp. liable for their own conduct arise under the "subject matter" of the underlying agreement between plaintiffs and First USA and BOA. Moreover, there is a close relationship between First USA and Bank One, and between BOA and BOA Corp. Bank One is the parent corporation of its wholly-owned subsidiary First USA, and BOA Corp. is the parent corporation of its wholly-owned subsidiary BOA. This more than satisfies the "close relationship" factor. See Chase Mortgage, 2001 WL 547224, at *3; see also Fluor Daniel, 1999 WL 637236, at *6 (finding sufficiently close relationship where non-signatory owned fifty percent of signatory). Accordingly, this Court finds that, assuming the claims are otherwise arbitrable against First USA and BOA, it is appropriate to compel plaintiffs Ruga and Ross to also arbitrate their claims against Bank One and BOA Corp. under an estoppel theory. B. Scope of Arbitration Agreement As an initial matter, defendants argue that this Court should not reach the question of whether plaintiffs' claims are within the scope of the arbitration clauses. Defendants contend that this issue of arbitrability is a question for the arbitrator in the first instance. "Although the [Supreme] Court has also long recognized and enforced a `liberal federal policy favoring arbitration agreements,' it has made clear that there is an exception to this policy: The question whether the parties have submitted a particular dispute to arbitration, i.e., the 'question of arbitrability,' is `an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.' "Howsam, 123 S.Ct. at 591 (quoting AT & T Techs., 475 U.S. at 649, 106 S.Ct. 1415; Moses H. Cone Memorial Hasp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); and citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)) (emphasis in original). Specifically, the Supreme Court recently reiterated that "a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court." Howsam, 123 S.Ct. at *404 592 (citing AT&T Techs., 475 U.S. at 651-52, 106 S.Ct. 1415; Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241-43, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962)). "When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally... should apply ordinary state-law principles that govern the formation of contracts." First Options, 514 U.S. at 944, 115 S.Ct. 1920; accord Cap Gemini Ernst & Young U.S. LLC v. Nackel, No. 02 Civ. 6872 (DLC), 2002 WL 31626703, at *2 (S.D.N.Y. Nov.21, 2002). However, "[u]nless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator." AT & T Techs., 475 U.S. at 649, 106 S.Ct. 1415; accord Howsam, 123 S.Ct. at 592; Nackel, 2002 WL 31626703, at *2. The First USA arbitration clause provides, in part, Any claim, dispute or controversy ("Claim") by either you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or your Account, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved by binding arbitration by the National Arbitration Forum, under the Code of Procedure in effect at the time the Claim is filed. (Barrett Decl. Ex. 1 (emphasis added).) The BOA arbitration clause provides, in part, Any dispute, claim, or controversy ("Claim") by or between you and us (including each other's employees, agents or assigns) arising out of or relating to this Agreement, your Account, or the validity or scope of any provision of this Agreement, including the arbitration clause shall, upon election by either you or us, be resolved by binding arbitration. (Uhlig Decl. Ex. 2, § 7.19 (emphasis added).) Plaintiffs argue that the language emphasized above cannot be deemed "clear and unmistakable" evidence that either plaintiff Ruga or Ross agreed to have the arbitrator decide the question of arbitrability. This Court disagrees. Both arbitration provisions specifically provide evidence that the plaintiffs "clearly and unmistakably" agreed to have the arbitrator decide the question of arbitrability. The First USA clause specifically states that "Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement" shall be arbitrated.[4] The BOA clause specifically states that any claim relating to "the validity or scope of any provision of this Agreement, including the arbitration clause shall" be arbitrated. These provisions evidence the parties' intent that the arbitrator, not the Court, is to determine arbitrability. See Green Tree Fin. Corp. v. Bazzle, No. 02-634, ___ U.S. ___, 123 S.Ct. 2402, 2407, 156 L.Ed.2d 414 (2003) (plurality opinion) ("The parties agreed to submit to the arbitrator `[a]ll disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract' And the dispute about what the arbitration contract in each case means ... is a *405 dispute `relating to this contract' and the resulting `relationships.' Hence, the parties seem to have agreed that an arbitrator, not a judge, would answer the relevant question." (emphasis in original)); see also Shaw Group Inc. v. Triplefine Int'l Corp., 322 F.3d 115, 121-22 (2d Cir.2003) (finding that, under New York law, clause stating that "any disputes concerning or arising out of contract shall be arbitrated was evidence that parties "clearly and unmistakably" agreed to have the arbitrator decide the question of arbitrability); PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1196, 1199-1200 (2d Cir.1996) (finding that, under New York law, clause stating that "any and all controversies which may arise ... concerning any account, transaction, dispute or the construction, performance, or breach of this or any other agreement ... shall be determined by arbitration," was evidence that parties "clearly and unmistakably" agreed to have the arbitrator decide the question of arbitrability); Optibase, Ltd. v. Merrill Lynch Inv. Managers, No. 02 Civ. 9813(LTS), 2003 WL 1587244, at *4 (S.D.N.Y. Mar.27, 2003) (finding that, under New York law, clause providing that "any controversies which may arise with [Merrill Lynch]" shall be arbitrated was evidence that parties "clearly and unmistakably" agreed to have the arbitrator decide the question of arbitrability); Nackel, 2002 WL 31626703, at *2 (finding that, under New York law, clause that stated "[A]ny dispute, controversy or claim ... arising out of or relating to or concerning the provisions of this Agreement, any agreement between you and the Firm relating to or arising out of your employment with us or otherwise concerning any rights, obligations, or other aspects of your employment relationship" shall be arbitrated, was evidence that parties "clearly and unmistakably" agreed to have the arbitrator decide the question of arbitrability). However, even if this Court were to determine that the language of the arbitration clauses did not "clearly and unmistakably" evidence an agreement to have the arbitrator decide the question of arbitrability, this Court would find that plaintiffs' claims are within the scope of the arbitration clauses. As noted above, the arbitration clauses in the First USA and BOA cardholder agreements apply to any claim "arising from or relating in any way to ... [the] Account," and "arising out of or relating to ... [the] Account," respectively. Plaintiffs' claims against First USA and BOA clearly relate to their accounts with their respective banks. First, the claims allege that unlawful currency conversion fees were charged to plaintiffs' accounts with First USA and BOA. Second, the alleged TILA violations were contained in documents and solicitations sent to plaintiffs regarding their credit card account or prospective credit card account with First USA and BOA. There is no question that these claims relate to plaintiffs' accounts at First USA and BOA. The arbitration clauses involved in this action are broad. See, e.g., ACE Capital, 307 F.3d at 26 ("any dispute [that] shall arise between the parties ... with reference to the interpretation of this Agreement or their rights with respect to any transaction involved" held to be broad arbitration clause); Oldroyd, 134 F.3d at 76 ("[a]ny dispute, controversy or claim arising under or in connection with [the agreement]" is a broad arbitration clause); Collins & Aikman, 58 F.3d at 19 ("Any claim or controversy arising out of or relating to th[e] agreement is a broad arbitration clause."); Newbridge Acquisition I, LLC. v. Grupo Corvi, S.A. de D.V., No. 02 Civ. 9839 (JSR), 2003 WL 42007, at *3 (S.D.N.Y. Jan.6, 2003) ("any and all disputes which may arise out of or in connection *406 with this Agreement" is a broad arbitration clause); Lewis Tree Serv., Inc. v. Lucent Techs., Inc., 239 F.Supp.2d 332, 336 (S.D.N.Y.2002) (arbitration clause stating "any controversy or claim ... related directly or indirectly to this Agreement" is broad). Where an arbitration clause is broad, a presumption of arbitrabihty arises and arbitration of even a collateral matter will be ordered if the claim alleged "implicates issues of contract construction or the parties' rights and obligations under it." Moreover, "[w]hen parties use expansive language in drafting an arbitration clause, presumably they intend all issues that `touch matters' within the main agreement to be arbitrated, while the intended scope of a narrow arbitration clause is obviously more limited." ACE Capital, 307 F.3d at 34 (quoting Louis Dreyfus Negoce S.A v. Blystad Shipping & Trading Inc., 252 F.3d 218, 224-25 (2d Cir.2001)); accord Specht, 306 F.3d at 35; Fluor Daniel, 1999 WL 637236, at *8-9. This presumption of arbitrability can be overcome only if it may be said with "positive assurance" that the arbitration clause is not susceptible to the interpretation that it brings plaintiffs' claims within its sweep. Lewis Tree Serv., 239 F.Supp.2d at 336 (citing Oldroyd, 134 F.3d at 76); accord Specht, 306 F.3d at 35 ("[A]rbitration is indicated unless it can be said `with positive assurance' that an arbitration clause is not susceptible to an interpretation that covers the asserted dispute."); Genesco, 815 F.2d at 847 ("[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration."). Here, this Court cannot say with positive assurance that the arbitration clauses at issue are not susceptible to an interpretation that plaintiffs Ruga and Ross's claims "touch matters" within the cardholder agreements. Plaintiffs allege a conspiracy to fix currency conversion fee prices that are charged when they conduct a foreign currency transaction on their credit card. Thereafter, the alleged fixed price fees appear on plaintiffs' monthly billing statements for their credit card accounts. Further, the terms of plaintiffs' use of their credit card accounts are governed by the cardholder agreements that contain the arbitration clauses. Thus, when reading the arbitration agreements liberally, due to their broad language, the antitrust claims are related to the cardholder agreements and the plaintiffs' credit card accounts such that the claims "touch matters" covered by the cardholder agreement. Moreover, in accord with the strong federal policy favoring arbitration, this Court resolves any doubt concerning arbitrability in favor of arbitration. 1. Claims Arising Prior to Contract Plaintiffs argue that they cannot be forced to arbitrate claims that arose prior to the time that the parties entered into an arbitration agreement. Specifically, plaintiffs contend that the solicitations containing the TILA violations were sent to plaintiffs prior to plaintiffs' receipt of any cardholder or arbitration agreement, and certainly prior to plaintiffs' agreement to the terms of such a provision. However, all of plaintiffs' claims fall under the scope of the arbitration clauses at issue here. The First USA clause specifically states that the "arbitration agreement applies to all Claims now in existence or that may arise in the future." Certainly plaintiff Ruga's TILA violation claim was in existence at the time she agreed to the First USA cardholder agreement. See Lloyd v. MBNA Am. Bank, N.A., No. 00 Civ. 109, 2001 WL 194300, at *4 (D.Del. Feb. 22, 2001). *407 Further, the BOA clause states that "[a]ny dispute, claim, or controversy... arising out of or relating to this Agreement, your Account, or the validity or scope of any provision of this Agreement, [shall] be resolved by binding arbitration." This language is broad enough to include any TILA violation claims that plaintiff Ross had prior to his acceptance of the BOA cardholder agreement. Importantly, this Court cannot say with positive assurance that the BOA arbitration clause cannot be interpreted to include plaintiff Ross's TILA violation claims that may have arisen prior to the agreement. Thus, applying the strong policy in favor of arbitration and resolving any doubts of arbitrability in favor of arbitration, this Court finds that any TILA violations arising prior to the cardholder agreement are nonetheless within the scope of the BOA arbitration clause. See Arriaga v. Cross Country Bank, 163 F.Supp.2d 1189, 1192-93 & n. 6 (S.D.Cal.2001), rejected on other grounds by Ting v. AT & T, 319 F.3d 1126, 1150 n. 14 (9th Cir.2003) and Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1176 n. 15 (9th Cir.2003). Accordingly, this Court finds that all of plaintiffs Ruga and Ross's claims against First USA, Bank One, BOA, and BOA Corp. are within the scope of the arbitration agreement in the plaintiffs' cardholder agreements. C. Federal Statutory Claims Defendants argue that both plaintiffs' TILA and antitrust claims are arbitrable. Plaintiffs contend that horizontal price-fixing antitrust claims are not amenable to arbitration. For the following reasons, plaintiffs' arguments are without merit. Notwithstanding the vital public policy purposes served by federal statutes, the Supreme Court has repeatedly acknowledged that "[i]t is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). The Supreme Court instructs Although all statutory claims may not be appropriate for arbitration, "[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evidenced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." In this regard, we note that the burden is on [plaintiff] to show that Congress intended to preclude a waiver of a judicial forum for [his or her statutory] claims. If such an intention exists, it will be discoverable in the text of the [statute], its legislative history, or an "inherent conflict" between arbitration and the [statute's] underlying purposes. Throughout such an inquiry, it should be kept in mind that "questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration." Gilmer, 500 U.S. at 26, 111 S.Ct. 1647 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), and Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)); accord Lewis Tree, 239 F.Supp.2d at 337; Hale v. First USA Bank, N.A., No. 00 Civ. 5406(JGK), 2001 WL 687371, at *7 (S.D.N.Y. June 19, 2001). Applying such an analysis, the Supreme Court has found that claims under the Sherman Act, ADEA, RICO, the Securities Exchange Act of 1934, and the Securities Act of 1933 are arbitrable. See, e.g., Gilmer, 500 U.S. at 27, 111 S.Ct. 1647 (ADEA); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 482-83, *408 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (Securities Act of 1933); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 225-26,107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (RICO and Securities Exchange Act of 1934); Mitsubishi 473 U.S. at 625, 105 S.Ct. 3346 (Sherman Act). 1. TILA Claims Plaintiffs do not dispute the fact that TILA claims are arbitrable, nor could they. Numerous courts have found TILA claims to be arbitrable. See, e.g., Randolph v. Green Tree Fin. Corp., 244 F.3d 814, 819 (11th Cir.2001); Johnson v. West Suburban Bank, 225 F.3d 366, 377-78 (3d Cir.2000); Sagal v. First USA Bank, N.A, 69 F.Supp.2d 627, 631 (D.Del.), affd, 254 F.3d 1078 (3d Cir.2001); Defreitas v. Am. Gen. Fin., Inc., No. 01 Civ. 2756, 2001 WL 1313203, at *3 (E.D.La. Oct.25, 2001); Lloyd, 2001 WL 194300, at *3; see also Hale, 2001 WL 687371, at *7 (collecting cases). This Court also concludes that plaintiffs' TILA claims are arbitrable. 2. Horizontal Price-Fixing Claims In Mitsubishi the Supreme Court held that Sherman Act claims of antitrust conspiracy are arbitrable. 473 U.S. at 628-40, 105 S.Ct. 3346. The Supreme Court held that "nothing in the nature of the federal antitrust laws prohibits parties from agreeing to arbitrate antitrust claims." Shearson/Am. Express v. McMahon, 482 U.S. 220, 239, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (citing Mitsubishi 473 U.S. at 629, 105 S.Ct. 3346). The Supreme Court also found that the potential factual and legal complexities of an antitrust claim do not warrant a prohibition on antitrust arbitrations. Mitsubishi 473 U.S. at 633-34, 105 S.Ct. 3346; McMahon, 482 U.S. at 232, 107 S.Ct. 2332. Nor does arbitration "entail any consequential restrictions on statutory rights." McMahon, 482 U.S. at 232, 107 S.Ct. 2332 (citing Mitsubishi 473 U.S. at 628, 105 S.Ct. 3346). Further, the importance of the private damages remedy in antitrust actions does not compel the conclusion that those remedies are precluded in a private arbitration. Mitsubishi 473 U.S. at 634-36, 105 S.Ct. 3346. The Court noted that, "so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function." Mitsubishi 473 U.S. at 637, 105 S.Ct. 3346; accord McMahon, 482 U.S. at 240, 107 S.Ct. 2332. Finally, the Mitsubishi court found that courts will remain in a position to protect a litigants' rights under the antitrust laws even after permitting arbitration since it has the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the antitrust laws has been addressed.... While the efficacy of the arbitral process requires that substantive review at the award-enforcement stage remain minimal, it would not require intrusive inquiry to ascertain that the tribunal took cognizance of the antitrust claims and actually decided them. 473 U.S. at 638,105 S.Ct. 3346. Although Mitsubishi involved an arbitration in an international transaction, the Supreme Court has not limited Mitsubishi to international arbitrations. For instance, it has subsequently cited Mitsubishi without distinguishing between domestic and international arbitrations. See, e.g., Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 89, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (recognizing that Sherman Act claims can be appropriately resolved through arbitration); Gilmer, 500 U.S. at 28, 111 S.Ct. 1647 (noting that the Supreme Court had previously held that "claims under [the Sherman Act] are appropriate *409 for arbitration"); McMahon, 482 U.S. at 239-41, 107 S.Ct. 2332 (noting that Mitsubishi addressed international transactions only, but applying the Mitsubishi analysis to arbitration of RICO claims since they are "no different from the federal antitrust laws," without distinguishing between domestic and international antitrust claims). Further, courts in this district have held that Mitsubishi and its reasoning apply to domestic as well as international arbitrations. See, e.g., Hough v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 757 F.Supp. 283, 286 (S.D.N.Y.) ("[T]he reasoning of Mitsubishi should apply with equal force to domestic claims."), affd, 946 F.2d 883 (2d Cir.1991); Gemco Latinoamerica, Inc. v. Seiko Time Corp., 671 F.Supp. 972, 979 (S.D.N.Y.1987) ("Although the holding of Mitsubishi was limited to international transactions, we believe that this reasoning would apply with equal force in the domestic context."); see also Acquaire v. Canada Dry Bottling, 906 F.Supp. 819, 837 (E.D.N.Y.1995) ("Significantly, the reasoning applied by the [Mitsubishi ] Court ... is as relevant to arbitration agreements of national scope as it is to agreements between international partners.") Thus, these courts have necessarily found that the doctrine enunciated in American Safety Equipment Corp. v. J. P. Maguire & Co., 391 F.2d 821, 826-27 (2d Cir.1968), which held that antitrust claims were not subject to involuntary arbitration, was effectively overruled. See Hough, 757 F.Supp. at 286; Gemco, 671 F.Supp. at 980; see also Seacoast Motors of Salisbury, Inc. v. DaimlerChrysler Motors Corp., 271 F.3d 6, 10 (1st Cir.2001) (finding that since Mitsubishi, circuit courts have "abandoned the American Safety doctrine in its entirety"); Acquaire, 906 F.Supp. at 837 ("Since the Mitsubishi decision was issued a number of district courts in this circuit have held that domestic antitrust disputes are arbitrable. I find no reason to conclude otherwise with respect to the instant antitrust claims."). Plaintiffs contend that horizontal price-fixing antitrust claims, such as those alleged by plaintiffs, are not arbitrable. Plaintiffs rely mainly on Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511 (10th Cir.1995), to support their argument. However, Coors does not stand for the broad proposition advanced by plaintiffs.[5] In Coors, the Tenth Circuit did not hold that there was a blanket prohibition on the arbitration of horizontal price-fixing claims, but only that the arbitration agreement at issue in that case "cover[ed] antitrust disputes ... provided that those disputes are within the scope of the agreement." 51 F.3d at 1515-16 ("Although Mitsubishi allowed parties to a contract to compel the arbitration of their antitrust disputes, it did not proclaim that all disputes between parties who include an arbitration clause in their contracts are subject to arbitration. A dispute within the scope of the contract is still a condition precedent to the involuntary arbitration of antitrust claims."). The court then went on to find that the particular antitrust claims in that action were outside the scope of the arbitration clause. Coors, 51 F.3d at 1515-16. The arbitration clause in Coors mandated arbitration of "any dispute arising in connection with the implementation, interpretation or enforcement" of the contract between the parties. 51 F.3d at 1515. However, "[t]hat language was not broad enough to cover antitrust claims, the Tenth Circuit *410 held, except with respect to antitrust disputes that were within the scope of the parties' licensing agreement, that is claims where there was a `connection between the contract and the antitrust claims.'" B-S Steel of Kansas, Inc. v. Texas Indus., Inc., 229 F.Supp.2d 1209, 1227 (D.Kan. 2002) (quoting Coors, 51 F.3d at 1516). In contrast, the arbitration clauses at issue here are quite broad in that they apply to any claim "arising from or relating in any way to ... your Account," and "arising out of or relating to ... your Account." As previously discussed, after applying the strong policy in favor of arbitration, and resolving any doubts in favor of arbitrability, it is clear that plaintiffs' antitrust claims "touch matters" covered by the cardholder agreements plaintiffs entered into. Plaintiffs allege a conspiracy to fix currency conversion fee prices that are charged when they conduct a foreign currency transactions with their credit cards, and the alleged fixed price fees appear on plaintiffs' credit card accounts. The terms of plaintiffs' use of those credit card accounts are governed by the cardholder agreements containing the arbitration clause. Thus, the antitrust claims are related to the cardholder agreements and the plaintiffs' credit card accounts such that the claims "touch matters" covered by the cardholder agreement.[6] Further, this Court does not share the Coors concern over a result that compels arbitration. The Tenth Circuit noted that such an outcome would lead to the anomaly that "every brewer in America except Coors may bring an antitrust action against Molson. "Coors, 51 F.3d at 1516 (emphasis in original). The decision to compel arbitration in this action will lead to the anomaly envisioned by the Tenth Circuit, but that is precisely what the parties bargained for. Indeed, every credit card holder in America, or at least those cardholders of the alleged co-conspirators of defendants First USA, Bank One, BOA and BOA Corp., can bring an antitrust action against those defendants. However, plaintiff Ruga, and other similarly situated First USA cardholders, cannot sue First USA and Bank One because they bargained away their right to bring an action in federal court by agreeing to arbitration; The same is true for plaintiff Ross, and other similarly situated BOA cardholders, with respect to BOA and BOA Corp. This result is not bizarre. In fact, logic compels it because one of the prices of doing business with First USA and BOA is an agreement to arbitrate. Plaintiffs Ruga and Ross decided to agree to arbitration instead of taking their business to another credit card issuer. When the outcome is the product of the parties' bargain with each other, such a result cannot be characterized as "absurd." D. Enforcement Apart from the arbitrability of their claims, plaintiffs argue that the First USA and BOA arbitration clauses are unenforceable. Plaintiffs advance several arguments for unenforceability, but each is without merit. *411 1. Unconscionability Section Two of the FAA provides that arbitration agreements shall be enforced subject to all defenses to enforcement that apply to contracts generally. 9 U.S.C. § 2. To determine the merit of these contractual defenses, courts "should apply ordinary state-law principles that govern the formation of contracts." First Options, 514 U.S. at 944, 115 S.Ct. 1920. However, "the party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration." Green Tree, 531 U.S. at 91, 121 S.Ct. 513. Plaintiffs argue that the First USA and BOA arbitration clauses are unconscionable, and thus unenforceable. Specifically, they contend that the costs to bring an arbitration action discourage or prevent plaintiffs from vindicating their statutory rights.[7] "It may well be that the existence of large arbitration costs could preclude a litigant ... from effectively vindicating her federal statutory rights in the arbitral forum." Green Tree, 531 U.S. at 90, 121 S.Ct. 513; accord Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 56 (1st Cir.2002). Specifically, "where, as here, a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs." Green Tree, 531 U.S. at 92,121 S.Ct. 513. The Supreme Court did not determine "[h]ow detailed the showing of prohibitive expense must be before the party seeking arbitration must come forward with contrary evidence." Green Tree, 531 U.S. at 92, 121 S.Ct. 513. However, it did hold that the mere risk of such prohibitive costs is too speculative to justify invalidating the arbitration agreement. See Green Tree, 531 U.S. at 91, 121 S.Ct. 513; Large, 292 F.3d at 56. This Court agrees with District Judge Kaplan, in Stewart v. Paul, Hastings, Janofsky & Walker, LLP, 201 F.Supp.2d 291, 293 (S.D.N.Y.2002), that the proper inquiry is the one adopted by the Fourth Circuit in Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 553-57 (4th Cir.2001). There the Fourth Circuit held that a "case-by-case analysis that focuses, among other things, upon the claimant's ability to pay the arbitration fees and costs, the expected cost differential between arbitration and litigation in court, and whether the cost differential is so substantial as to deter the bringing of claims" is appropriate. Bradford, 238 F.3d at 556; accord Stewart, 201 F.Supp.2d at 293 (labeling the Bradford opinion "meticulously reasoned"); see also Musnick v. King Motor Co. of Fort Lauderdale, 325 F.3d 1255, 1259 (11th Cir.2003) ("Since Green Tree, all but one of the other Circuits that have reconsidered this issue have applied a similar case-by-case approach."). As an initial matter, defendants have offered to pay all arbitration fees, *412 hearing fees, and arbitrators' fees, and to forgo any right to seek prevailing party attorneys' fees in arbitration. Thus, plaintiffs cannot possibly show that the arbitration costs could preclude them from effectively vindicating their federal statutory rights in arbitration. See Large, 292 F.3d at 56-57; Arellano v. Household Finance Corp. Ill, No. 01-2433, 2002 WL 221604, at *3 (N.D.Ill. Feb.13, 2002); see also Dobbins v. Hawk's Enters., 198 F.3d 715, 717 (8th Cir.1999) (directing district court that if the arbitration fee is unreasonable, then the district court should accept defendant's offer to pay the arbitration fees); Howard v. Anderson, 36 F.Supp.2d 183, 187 (S.D.N.Y.1999) (noting that where courts have found that fees render an arbitration agreement unenforceable, "courts have either refused to enforce the arbitration agreement or ordered the defendant to pay the fees"). Even if defendants had not offered to pay the arbitration fee and waive any fee-shifting rights they may have, the costs required to bring an arbitration do not render the First USA and BOA arbitration agreements unconscionable. The First USA arbitration agreement identifies the National Arbitration Forum ("NAF") as its arbitration forum. (Barrett Decl. Ex. 1.) Under the current NAF Code, plaintiffs' claims would be, considered "Consumer Small Claims." (Second Decl. of Joshua Wolson dated May 23, 2002, ("Wolson Decl. II"), Ex. B ("NAF Code"), Rule 2(BB); Wolson Decl. II Ex. A.) Such claims are subject to a different fee schedule than other claims submitted to NAF. (Wolson Decl. II, NAF Code at 38.) Under the NAF Code, a plaintiff filing a "Consumer Small Claim" is subject to a filing fee ranging from $40 to $100, and a Participatory Hearing Fee ranging from $75 to $100. However, the respondent is required to pay the remaining hearing fees for the hearing, except for a $10 processing fee per so-called "Request."[8] (Wolson Decl. II, NAF Code at 39-40.) Moreover, the NAF Code provides for a waiver of the Small Claim filing fee, administrative fees, Request fees, or Hearing fees for indigent parties. (Wolson Decl. II, NAF Code Rule 45(A).) This fee schedule in the NAF Code has been upheld as adequate and fair by numerous courts. See, e.g., Hale v. First USA Bank, N.A., No. 00 Civ. 5406(JGK), 2001 WL 687371, at *4 (S.D.N.Y. June 19, 2001) (collecting cases). In Green Tree, Justice Ginsburg, in a separate opinion, concurring in part and dissenting in part, characterized the NAF Code provisions limiting fees in consumer small claims cases as a "model[] for fair cost and fee allocation." Green Tree, 531 U.S. at 95 & n. 2, 121 S.Ct. 513; accord Hale, 2001 WL 687371, at *4 n. 2. This Court agrees. Further, plaintiff Ruga has failed to demonstrate an inability to pay the NAF fees, nor has she demonstrated that those fees are so substantially different than the fees a litigant would pay in federal court that they deter her from bringing claims. See Hale, 2001 WL 687371, at *3-4.[9] The BOA arbitration agreement identifies Judicial Arbitration and Mediation Services, Inc. ("JAMS") as the forum for *413 the arbitration. (Uhlig Decl. Ex. 2.) Under the JAMS "Minimum Standards of Procedural Fairness" applicable to consumer arbitrations, "when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $125, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company ...." (Decl. of William R. Wade-Grey dated May 22, 2002, ("Wade-Grey Decl.") Appx. ś 7.) This is precisely the situation with plaintiff Ross's claims. He has not demonstrated an inability to pay the $125 fee associated with a JAMS arbitration, nor has he shown that that fee would effectively deter him from vindicating his statutory rights. See Hale, 2001 WL 687371, at *3-4. However, the BOA arbitration clause does contain a clause of some concern in consumer arbitrations, namely that "[i]f the arbitrator rules in favor of one party against the other, the other party shall pay all reasonable attorneys' fees and costs of the action on behalf of both parties (including any fees and expenses paid by one party on behalf of the other) unless the arbitrator or court decides such an award would cause a substantial injustice based on the facts and legal arguments set forth in the action." (Uhlig Decl. Ex. 2.) Notably, the agreement prohibits an award of fees and costs where either the arbitrator or court decided that "such an award would cause a substantial injustice." Thus, plaintiff Ross has failed to demonstrate the likelihood of the application of such a fee shifting provision, and has only shown that he faces a risk that the fee-shifting provision in the BOA arbitration agreement would be applied. See Musnick, 325 F.3d at 1259-60 (holding that where an arbitration agreement contains a "loser pays" provision that may involve some "fee-shifting," the claim of prohibitive costs is too speculative); Thompson v. Irwin Home Equity Corp., 300 F.3d 88, 91-92 (1st Cir.2002) (same). The mere risk of such prohibitive costs is too speculative to justify invalidating the arbitration agreement. See Green Tree, 531 U.S. at 91, 121 S.Ct. 513; Musnick, 325 F.3d at 1259-60; Large, 292 F.3d at 56. Moreover, even if an issue should arise during arbitration concerning fees imposed on plaintiffs, it can be addressed adequately by the Court at the arbitration award enforcement stage. Thus, plaintiffs are not left without recourse if they believe that they were not able to vindicate all their statutory rights in arbitration due to costs or fees imposed on them. See Musnick, 325 F.3d at 1261; Thompson, 300 F.3d at 92; Howard v. Anderson, 36 F.Supp.2d 183, 187 (S.D.N.Y.1999); see also McMahon, 482 U.S. at 232, 107 S.Ct. 2332 (finding that judicial review at the enforcement stage ensures compliance with statutory requirements); DeGaetano v. Smith Barney, Inc., 983 F.Supp. 459, 464-5 (S.D.N.Y.1997) (vacating arbitration award because arbitration agreement was against public policy to the extent that it prevented prevailing plaintiff from obtaining an award of attorney's fees in an employment discrimination case, a right plaintiff has under Title VII). Accordingly, this Court finds that plaintiffs have not demonstrated sufficiently an inability to pay the fees associated with the arbitrations called for under their cardholder agreements, nor the likelihood that they would incur large arbitration costs that would effectively preclude them from vindicating their federal statutory rights in arbitration. Thus, this Court will not invalidate the arbitration agreements as unconscionable.[10] *414 2. Seventh Amendment Right to Jury Trial Plaintiffs also argue that arbitration in this case would violate their Seventh Amendment right to a jury trial. Plaintiffs' argument is without merit. A plaintiff is deemed to have forgone the right to a jury trial under the Seventh Amendment as a result of entering into an agreement to arbitrate certain matters. As the Fourth Circuit held, [T]he fact that the appellees waived their right to a jury trial does not require the court to evaluate the agreement to arbitrate under a more demanding standard. It is clear that a party may waive her right to adjudicate disputes in a judicial forum. Similarly, the right to a jury trial attaches in the context of judicial proceedings after it is determined that litigation should proceed before a court. Thus, the "loss of the right to a jury trial is a necessary and fairly obvious consequence of an agreement to arbitrate." Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d 302, 307 (4th Cir.2001) (quoting Pierson v. Dean, Witter, Reynolds, Inc., 742 F.2d 334, 339 (7th Cir.1984)); accord Snowden v. Checkpoint Check Cashing, 290 F.3d 631, 638 (4th Cir.2002); Bank One, N.A. v. Coates, 125 F.Supp.2d 819, 834 (S.D.Miss.2001); see also Marsh v. First USA Bank, N.A, 103 F.Supp.2d 909, 920-22 (N.D.Tex.2000) ("The Seventh Amendment right to a trial by jury is necessarily incident to, and predicated upon the right to a federal judicial forum. Thus, a valid arbitration provision, which waives the right to resolve a dispute through litigation in a judicial forum, implicitly waives the attendant right to a jury trial. Therefore, the Seventh Amendment is not implicated by a contractual provision that precludes access to an Article III forum."). Plaintiffs' reliance on National Equipment Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir.1977) and Wright v. Lewis, 76 F.3d 57, 59 (2d Cir.1996), is misplaced. Neither National Equipment nor Wright involved arbitration, and both assumed the plaintiff in each respective case had a right to proceed before a court. Thus, the National Equipment and Wright courts found that the plaintiffs' right to a jury trial under the Seventh Amendment had already attached. See Wright, 76 F.3d at 59-60; Nat'l Equipment, 565 F.2d at 258. In contrast, plaintiffs' right to a jury did not attach here because they waived their right to proceed before a court.[11] 3. Procedural Limitations & Lack of Injunctive Relief Finally, plaintiffs argue that their statutory right to injunctive relief under both *415 the antitrust laws and TILA will be frustrated in arbitration. Further, they assert that their rights to certain discovery mechanisms, subpoena powers, and to proceed against all the alleged co-conspirator defendants in one forum are impaired by arbitration. These policy arguments against arbitration lack merit. Plaintiffs' arguments concerning discovery, subpoena powers, and their right to proceed against all co-conspirators in one forum have all been resolved in favor of arbitration and this Court will not revisit such unfounded arguments. See, e.g., Chisolm v. Kidder Peabody Asset Mgmt., Inc., 966 F.Supp. 218, 222 (S.D.N.Y.1997) ("Unfairness due to limited discovery has also been dismissed by the Court because, 'though the procedures might not be as extensive as in the federal courts, by agreeing to arbitrate, a party trades the procedures and opportunity for review of the courtroom for the simplicity, informality and expedition of arbitration.'" (quoting Gilmer, 500 U.S. at 31-32, 111 S.Ct. 1647)).[12] "Such generalized attacks on arbitration `res[t] on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,' and as such, they are `far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.'" Gilmer, 500 U.S. at 30, 111 S.Ct. 1647 (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 481, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)). Plaintiffs further argue that arbitration in this action would not permit them to exercise certain statutory rights under the antitrust laws and TILA. Specifically, plaintiffs argue that the arbitration clauses effectively foreclose the statutory right of injunctive relief, which plaintiffs contend is provided to protect not only private plaintiffs, but competition and the public. As discussed above, the Supreme Court has held that "by agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum." Mitsubishi 473 U.S. at 637, 105 S.Ct. 3346; accord Gilmer, 500 U.S. at 28, 111 S.Ct. 1647. The Court has also made clear that "so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function." Mitsubishi 473 U.S. at 637, 105 S.Ct. 3346; accord Gilmer, 500 U.S. at 28, 111 S.Ct. 1647. Here, under the rules of NAF and JAMS, any relief available under the applicable substantive law, including injunctive relief, is available in arbitration as well. (JAMS Rule 22(d); Wolson Decl. II NAF Code Rule 20D.) Thus, injunctive relief will be available to plaintiffs Ruga and Ross against the defendants in the arbitration, as it was available to the plaintiff in Gilmer. Further, injunctive relief against the remaining co-conspirators will also be available to plaintiffs Ruga and Ross, since their claims against the other co-conspirators remain here. Therefore, plaintiffs have the ability to obtain injunctive relief against all defendants.[13] *416 Accordingly, this Court finds that the arbitration clauses in the First USA and BOA cardholder agreements are enforceable against plaintiffs Ruga and Ross, and their antitrust and TILA claims against First USA, Bank One, BOA, and BOA Corp. should proceed in arbitration. E. Stay Section three of the FAA provides that a district court, upon determining that an action before it is subject to an enforceable arbitration provision, "shall ... stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement." 9 U.S.C. § 3. As this Court has found that all the claims by plaintiffs Ruga and Ross against defendants First USA, Bank One, BOA and BOA Corp. are subject to mandatory arbitration, the action by those plaintiffs against those defendants is stayed pending arbitration. Accordingly, this Court grants defendants First USA and Bank One's motion to stay plaintiff Ruga's claims against them and compel plaintiff Ruga to bring those claims in arbitration in compliance with the agreement between the parties. Further, defendants BOA and BOA Corp.'s motion to stay plaintiff Ross's claims against them is granted and this Court compels plaintiff Ross to bring those claims in arbitration as well. II. Motion to Dismiss On a motion to dismiss, a court typically must accept the material facts alleged in the complaint as true and construe all reasonable inferences in a plaintiffs favor. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). A court should not dismiss a complaint for failure to state a claim unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord Gant v: Wattingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995). In this limited task, the "issue is not whether a plaintiff will or might ultimately prevail on her claim, but whether she is entitled to offer evidence in support of the allegations in the complaint." Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 62 (2d Cir.1997). "This generous approach to pleading applies in the antitrust context." Hamilton College, 128 F.3d at 63. As such, there are no heightened pleading requirements for antitrust cases. See Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001); Dresses For Less, Inc. v. CIT Group/Commercial Servs., Inc., No. 01 Civ. 2669(WHP), 2002 WL 31164482, at *6 (S.D.N.Y. Sept.30, 2002). Further, "[i]n antitrust cases in particular, the Supreme Court has stated that `dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.' "George Haug Co. v. Rolls Royce Motor Cars, Inc., 148 F.3d 136, 139 (2d Cir.1998) (quoting Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976)); accord Todd, 275 F.3d at 198; Dresses For Less, 2002 WL 31164482, at *6. The Second Circuit has held that "a short plain statement of a claim for relief which gives notice to the opposing party is all that is necessary in antitrust cases, as in other cases under the Federal Rules." George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 554 (2d Cir.1977); accord In re Nine West Shoes Antitrust Litig., 80 F.Supp.2d 181, 185 (S.D.N.Y.2000). However *417 ever, it is "improper `to assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged.'" Todd, 275 F.3d at 198 (quoting Associated Gen. Contractors of Cat., Inc. v. Cat State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983)); accord Dresses For Less, 2002 WL 31164482, at *6. A. Sherman Act Section One Claims In Counts I through III plaintiffs allege three different conspiracies that violate Section One of the Sherman Act. In Count I, plaintiffs allege that VISA, in conjunction with its member banks, MasterCard, in conjunction with its member banks, and Diners Club conspired to fix a minimum currency conversion fee of 1%. In Count II, plaintiffs allege that VISA and its member banks conspired with each other to fix a minimum currency conversion fee of 1%, and facilitate the second tier fees. Count III is identical to Count II, except that it alleges MasterCard and its member banks were the co-conspirators. 1. Inter-Association Claim Section One of the Sherman Act prohibits all combinations and conspiracies that unreasonably restrain trade among the states. 15 U.S.C. § 1. "To withstand a motion to dismiss, the plaintiff in a Sherman Act Conspiracy claim must allege (1) concerted action; (2) by two or more persons; (3) that unreasonably restrains interstate or foreign trade or commerce." In re Nasdaq Market-Makers Antitrust Litig., 894 F.Supp. 703, 710 (S.D.N.Y.1995); accord Virgin Atlantic Airways Ltd. v. British Airways PLC, 257 F.3d 256, 273 (2d Cir.2001); Tops Mkts., Inc., v. Quality Mkts., Inc., 142 F.3d 90, 96 (2d Cir.1998); In re Magnetic Audiotape Antitrust Litig., No. 99 Civ. 1580, 2002 WL 975678, at *4 (S.D.N.Y. May 9, 2002). "The complaint `must identify the co-conspirators, and describe the nature and effects of the alleged conspiracy.'" Nine West, 80 F.Supp.2d at 192 (quoting Continental Orthopedic Appliances, Inc. v. Health Ins. Plan of Greater New York, Inc., 994 F.Supp. 133, 138 (S.D.N.Y.1998)). Further, an antitrust complaint must adequately define the relevant product market, and allege antitrust injury and conduct in violation of the antitrust laws. Nine West, 80 F.Supp.2d at 185; Rock TV Entm't, Inc. v. Time Warner, Inc., No. 97 Civ. 016KLMM), 1998 WL 37498, at *2 (S.D.N.Y. Jan. 30, 1998). A district court must determine whether the complaint "contains either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Continental Orthopedic, 994 F.Supp. at 138; accord Nine West, 80 F.Supp.2d at 192. However, "[although the Federal Rules permit statements of ultimate facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal." Heart Disease Research Found, v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972). Defendants assert that Count I must be dismissed because plaintiffs failed to properly allege any concerted action. Outside of conclusory allegations that merely recite the language of the Sherman Act, defendants argue that plaintiffs have not alleged an express agreement among the defendants to fix currency conversion fees. Defendants also contend that an agreement among the defendants cannot be inferred reasonably from the limited facts plaintiffs allege. Specifically, defendants argue that: (1) MasterCard's alleged response to VISA's pre-implementation announcement of its currency conversion fee is insufficient *418 to infer an inter-association conspiracy; and (2) the alleged "dual governance" of VISA and MasterCard by the member banks is insufficient to infer a conspiracy. With respect to MasterCard's response to VISA's announcement, defendants argue that plaintiffs have alleged nothing more than parallel conduct of two competitors. And with respect to the "dual governance," i.e. the fact that the same banks allegedly control both VISA and MasterCard, defendants argue that the Complaint merely alleges an opportunity to conspire or agree. "The plaintiff must do more than allege the existence of a conspiracyâ it must allege some facts in support of the claim." Floors-N-More, Inc. v. Freight Liquidators, 142 F.Supp.2d 496, 501 (S.D.N.Y. 2001); accord Telectronics Proprietary, Ltd. v. Medtronic, Inc., 687 F.Supp. 832, 837 (S.D.N.Y.1988) (dismissing complaint which alleged that the defendants "conspired and contracted with [each other]... to restrain trade"). Moreover, the "mere opportunity to conspire does not by itself support the inference that such an illegal combination actually occurred." Capital Imaging Assocs., P.C. v. Mohawk Valley Med Assocs., Inc., 996 F.2d 537, 545 (2d Cir.1993); accord AD/SAT v. Associated Press, 181 F.3d 216, 234 (2d Cir. 1999) (holding that to prove an antitrust violation "an antitrust plaintiff must present evidence tending to show that association members, in their individual capacities, consciously committed themselves to a common scheme designed to achieve an unlawful objective"). However, "[i]t is not necessary to find an express agreement in order to find a conspiracy. It is enough that a concert of action is contemplated and that the defendants conformed to this agreement." Ambook Enters, v. Time, Inc., 612 F.2d 604, 614 (2d Cir.1979); accord Nasdaq, 894 F.Supp. at 713. Thus, a complaint will withstand scrutiny on a motion to dismiss if it alleges facts that could support an inference of an unlawful agreement. An inference of a horizontal price-fixing agreement can be drawn in the absence of direct "smoking gun" evidence "when such interdependent conduct is accompanied by circumstantial evidence and plus factors such as defendants' use of facilitating practices. Information exchange is an example of a facilitating practice that can help support an inference of a price-fixing agreement." Todd, 275 F.3d at 198 (citations omitted); accord Apex Oil Co. v. DiMauro, 822 F.2d 246, 254 (2d Cir.1987); Nasdaq, 894 F.Supp. at 713. Conscious parallelism in pricing is one such circumstance that can provide for an inference of an antitrust conspiracy. Apex, 822 F.2d at 254; Nasdaq, 894 F.Supp. at 713. The Second Circuit has held that to infer a conspiracy from parallel pricing "a plaintiff must show the existence of additional circumstances, often referred to as `plus' factors, which, when viewed in conjunction[] with the parallel acts, can serve to allow a fact-finder to infer a conspiracy." Apex, 822 F.2d at 253-54; accord Nasdaq, 894 F.Supp. at 713. `"Plus factors' identified by courts, which, in combination with parallel pricing, may support an inference of conspiracy, include a common motive to conspire, actions which were against [the conspirators'] own individual business interests absent an illicit agreement, and evidence of coercion." Nasdaq, 894 F.Supp. at 713-14 (collecting cases). The Second Circuit has also found that "a high level of interfirm communications" is an additional "plus factor." Apex, 822 F.2d at 253-54; accord In re Plywood Antitrust Litigation, 655 F.2d 627, 633-37 (5th Cir.1981). *419 At the motion to dismiss stage, the complaint must merely allege the "legal and factual theory upon which [the] claim of interdependent conscious parallelism rests." Nasdaq, 894 F.Supp. at 714 (quoting Levitch v. Columbia Broad. Sys., Inc., 495 F.Supp. 649, 675 (S.D.N.Y.1980)). Thus, viewing the Complaint liberally and as a whole, plaintiffs have alleged sufficient facts to permit a fact-finder to infer that the defendants conspired to set the prices of currency conversion fees as alleged in Count I. Specifically, plaintiffs have alleged that defendants have acted in a parallel fashion, namely that shortly after VISA announced its intention to impose a currency conversion fee, Master-Card changed its original plans for a smaller fee and decided to charge the same amount as VISA. (Compl.ś 110.) According to plaintiffs, defendants charge a minimum 1% currency conversion fee and also impose an additional second tier fee at a higher rate. (Complśś 91, 101, 102, 106, 123, 124.) Though this parallel pricing is not enough on its own to infer an antitrust conspiracy, plaintiffs have also alleged so-called plus factors that require the motion to dismiss be denied. First, plaintiffs allege that, absent collusion and a common motive to conspire, the Issuing Bank defendants' imposition of the second tier fee is against their economic self-interest because they would stand to lose some of their best customers. (Compl.ś 119.) The Complaint also alleges that Diners Club's imposition of its currency conversion fee is against its economic self-interest because it risks losing some of its customers as well. (Compl. ś 124.) Second, and more importantly, plaintiffs allege that the effective control that the member banks of VISA and MasterCard have over both the VISA and MasterCard associations facilitates the conspiracy. (Compl.śś 91-96, 109.) This "dual governance," as it has been referred to, as well as the common issuance of VISA and MasterCard branded cards by the member banks, provides the vehicle for the interfirm communication necessary to create, fix, and maintain the currency conversion fees. (Compl.śś 91, 109.) In fact, plaintiffs quote a MasterCard official's letter to the Justice Department stating that "when one board acts with respect to a matter, the results of those actions are disseminated to the members which are members in both organizations. As a result, each of the associations is a fishbowl and officers and board members are aware of what the other is doing, much more so than in the normal corporate environment." (Compl.ś 97.) The dual governance and parallel pricing create sufficient circumstances for an inference of an antitrust conspiracy and overcome the minimum requirements of Rule 8 notice pleading. See Todd, 275 F.3d at 198; Nasdaq, 894 F.Supp. at 714; see also Apex, 822 F.2d at 253-54 (noting that "common motive to conspire" and "a high level of interfirm communications" are appropriate plus factors). The gravamen of defendants' argument is that no reasonable inference of a conspiracy to fix currency conversion fees can be inferred from the limited facts that plaintiffs allege in Count I. Defendants essentially argue that the Court should adopt the inferences that they believe should be drawn and provide alternative, lawful explanations for their conduct. "While these contentions may supply the grounds for a motion for summary judgment, they are out of place in a motion to dismiss." Nasdaq, 894 F.Supp. at 714. Further, defendants' argument that inferences of conspiracy should not be drawn from the facts alleged in the Complaint because those inferences are economically implausible is misplaced at this stage. *420 "Even if the scheme alleged was economically implausible, a conspiracy may nevertheless be proven `by strong direct or strong circumstantial evidence, [although] the implausibility of a scheme will reduce the range of inferences that may permissibly be drawn from ambiguous evidence.'" Dresses For Less, 2002 WL 31164482, at *8 (quoting Apex Oil 822 F.2d at 253 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986))). Whether plaintiffs can prove any antitrust violations based on the facts alleged in the Complaint is of no consequence. "The alleged facts, viewed as a whole, provide [a] sufficient basis from which all the elements in plaintiffs' Section 1 ... claim[] can be inferred and constitutes adequate notice to the defendants. The discovery process will provide `whatever additional sharpening of the issues is necessary.' " Three Crown Ltd. P'ship v. Caxton Corp., 817 F.Supp. 1033, 1047-48 (S.D.N.Y.1993) (quoting George C. Frey Ready-Mixed 554 F.2d at 554). a. Diners Club The Citigroup defendants filed a separate brief to argue that Count I should be dismissed as to defendant Diners Club. They argue that plaintiffs have failed to allege that Diners Club was part of any conspiracy, and thus the claim against it should be dismissed. As noted above, an allegation of an express agreement among the co-conspirators is not necessary. The complaint need only allege a factual circumstance to infer an antitrust conspiracy. Ambook, 612 F.2d at 614; accord Nasdaq, 894 F.Supp. at 713. Here, plaintiffs have alleged that Diners Club, like the VISA and Master-Card defendants and their respective member banks, imposed a minimum currency conversion fee of 1%, and now impose a fee of at least 2%. (Compl.śś 122-23.) Further, plaintiffs allege that the imposition of this fee by Diners Club is against its individual economic self-interest absent collusion with the VISA and MasterCard defendants and their respective member banks. (Compl.ś 124.) Plaintiffs also allege that Citigroup's indirect ownership of Diners Club and Citibank, another Citigroup subsidiary, facilitated the conspiracy between Diners Club and VISA and MasterCard. (Compl.ś 123.) Again, when the Court reads the Complaint liberally and as a whole, as it must, these allegations suffice to survive a motion to dismiss. The allegations in the Complaint sufficiently plead facts to create circumstances giving rise to an inference of an antitrust conspiracy. See Nasdaq, 894 F.Supp. at 713-14; Three Crown, 817 F.Supp. at 1047-48. 2. Intro-Association Claims Counts II and III allege so-called "intra-association" antitrust conspiracies between VISA and its member banks, and MasterCard and its member banks, respectively. As they did with Count I, defendants argue that Counts II and III must be dismissed because plaintiffs failed to properly allege any concerted action among the respective associations and their member banks. Specifically, defendants argue that the first tier fee set by VISA and MasterCard cannot be the basis for an antitrust conspiracy because VISA and MasterCard must be treated as autonomous entities acting unilaterally in their self-interest. Defendants also argue that the second tier fee cannot be the basis for an intra-association conspiracy since plaintiffs only allege that VISA and MasterCard "facilitate and encourage" the "collection" of that fee, and have aided and abetted that process. Those allegations, *421 defendants argue, are too vague to withstand a motion to dismiss. Defendants maintain that VISA and MasterCard's conduct with respect to the first tier fee is not a proper predicate for an intra-association conspiracy. They contend that the respective associations should be treated as single entities, like their competitors American Express and Diners Club. Defendants principally rely on AD/SAT, 181 F.3d 216 (2d Cir.1999), United States v. Visa U.S.A, Inc., 163 F.Supp.2d 322, 345 (S.D.N.Y.2001), and National Bancard Corp. v. VISA U.S.A., Inc., 779 F.2d 592 (11th Cir.1986), to support their argument. These decisions rendered with the benefit of a full evidentiary record, do not compel dismissal on a motion addressed to the sufficiency of this Complaint. Notably, in United States v. Visa U.S.A., Inc., District Judge Jones held, antitrust law's concern with the free working of the competitive process applies with equal force to joint ventures. Although a joint venture may involve aspects of agreement among competitors to enable a joint venture to function, agreements among those competitors unrelated to the efficiency of the joint venture and in particular limiting competition in areas where the competitors should compete, are subject to scrutiny under the antitrust laws. 163 F.Supp.2d at 345; accord MasterCard Int'l, Inc. v. Dean Witter, No. 93 Civ. 1478(LJF), 1993 WL 338213, at *3 (S.D.N.Y. Aug.27, 1993) ("The fact that the Member banks who are controlling members of MasterCard may be acting as a `single entity' does not immunize them from § 1 scrutiny."). Defendants repeatedly ignore plaintiffs' express allegation that "[i]mposition of the currency conversion fee is not necessary to the operation of the VISA and MasterCard networks nor to the provision of foreign exchange services on credit card transactions." (Compl.ś 111.) The Complaint also alleges that the imposition of the fee is not necessary to the existence of foreign currency transactions. (Compl.śś 111.) Further, plaintiffs contend that the member banks that make up VISA and MasterCard are direct horizontal competitors in every aspect except currency conversion fees. (Compl.śś 105-06.) These specific allegations prevent dismissal of the claims at this stage. Defendants also argue that plaintiffs' allegations regarding the second tier fee are vague. However, antitrust claims are not subject to a heightened pleading requirement, and therefore defendants' argument misses the mark. The allegations must merely provide a short plain statement of a claim for relief which gives notice to the opposing party. See In re Magnetic Audiotape Antitrust Litig., No. 99 Civ. 1580(LMM), 2002 WL 975678, at *5 (S.D.N.Y. May 9, 2002). Further, in Counts II and III, plaintiffs allege that each respective association and its member banks agreed to fix a currency conversion fee of no less than 1% of the transaction amount, and they conspired to facilitate and encourage the imposition and collection of the second tier fee. (Compl.śś 164-65.) VISA and MasterCard's role in this conspiracy was to aid and abet the process of collecting the fees by adding the second tier fee onto the transaction amount at the network level during the conversion. (Compl.ś 118.) As previously noted, a complaint may infer an antitrust conspiracy where "a concert of action is contemplated and that the defendants conformed to this agreement." Ambook, 612 F.2d at 614; accord Nasdaq, 894 F.Supp. at 713. Further, at the motion to dismiss stage, the complaint need *422 only allege the "legal and factual theory upon which [the] claim of interdependent conscious parallelism rests." Nasdaq, 894 F.Supp. at 714 (quoting Levitch, 495 F.Supp. at 675). Here, plaintiffs allege that defendants acted in a similar manner in that they imposed a minimum currency conversion fee and they "generally" also assessed the second tier fee, "typically" at the level of 2%. (Compl.ś 102.) Further, plaintiffs have alleged that the imposition of the second tier fee by the Issuing Banks would, in a competitive market without an agreement to fix prices, be against the economic self-interest of the issuing banks and would expose the banks to losing some of their best customers. (Compl.ś 119.) Also, plaintiffs allege that the associations themselves, and their member banks' control of the associations facilitate the intra-association conspiracies by providing the basis for interfirm communications and information exchange. (Compl.ś 91.) These allegations, when read liberally and in light of the entire Complaint, are sufficient to draw an inference of an antitrust conspiracy. Thus, this Court cannot conclude as a matter of law that such an inference would be unreasonable. As the Complaint, taken as a whole, sufficiently pleads a Section One claim and provides satisfactory notice to the defendants, the motion to dismiss must be denied. See Three Crown, 817 F.Supp. at 1047-48. a. VISA VISA filed a separate brief arguing on its own behalf that Count II should be dismissed because VISA acted as a single entity. VISA makes substantially the same arguments advanced by the other defendants regarding the single entity theory. Similarly, VISA neglects plaintiffs' express allegations regarding the necessity and use of the currency conversion fee. Thus, as the Compliant alleges that the fee does not enable a joint venture to function, and is unrelated to the efficiency of the association, an antitrust action can stand. See United States v. Visa, 163 F.Supp.2d at 345. VISA also argues that the Complaint does not properly allege harm to competition. However, VISA's central point in its argument is that the current VISA foreign currency conversion practice or system "would not be possible without the network-level rules which govern" the member banks, and foreign exchange rates set at the network level are a "practical necessity within the VISA system." (VISA's Mot. to Dismiss at 8, 10.) Thus, VISA argues that plaintiffs cannot allege harm to competition because rates at the network level, such as the currency conversion fee, are a necessity, and foreign currency conversion would not be practical or possible otherwise. This argument is in stark contrast with the allegations in the Complaint that the fee is not necessary and does not provide an otherwise unavailable product. (Compl.ś 112.) Therefore, the argument is better suited for a summary judgment motion, not a motion to dismiss.[14] Accordingly, defendants' motion to dismiss Counts I through III is denied. B. Truth in Lending Act Claim Count IV of the Complaint alleges claims against all defendants for violations *423 of various disclosure requirements under TILA and the regulations promulgated thereunder in Regulation Z. The purpose of TILA and the regulations promulgated thereunder is to "assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit." 15 U.S.C. § 1601; accord Pechinski v. Astoria Fed. Sav. and Loan Assoc., 238 F.Supp.2d 640, 642 (S.D.N.Y.2003). The Federal Reserve Board implements TILA through Regulation Z, codified at Title 12, Part 226 of the Code of Federal Regulations. 15 U.S.C. § 1604 (2003). Defendants contend that all claims in count IV should be dismissed because plaintiffs do not allege specific details about their card accounts and charges. Defendants also argue that those claims should be dismissed as to VISA and MasterCard, as well as the non-card issuing bank defendants, as none of them are "creditors" under TILA. Lastly, defendants argue that plaintiffs' claims for actual damages under TILA must be dismissed because plaintiffs have not properly alleged detrimental reliance on the alleged inadequate disclosures. 1. Elements of TILA Claim Initially, defendants argue that plaintiffs' allegations regarding the TILA violations are vague; specifically defendants claim that plaintiffs fail to allege which plaintiffs are actual cardholders, which foreign purchases are at issue, and whether the card was used primarily for consumer purposes. Defendants' arguments are misplaced on a motion to dismiss as claims for a violation of TILA are not subject to a heightened pleading standard, and thus the specificity that defendants argue is lacking is not required. See generally Swierkiemcz v. Sorema N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (reaffirming that Rule 8(a)'s notice pleading standard applies to all civil actions, except for those explicitly referred to in the Federal Rules of Civil Procedure). Plaintiffs' allegations that the representative plaintiffs named in the Complaint "paid currency conversion fees to one or more of the defendants named herein during the relevant period," suffices under Rule 8(a) notice pleading where currency conversion fees are defined to include "a fee and/or surcharge levied upon cardholders for general purpose card foreign exchange services, whether or not foreign currency is actually converted or exchanged." (Compl.śś 12, 16-34.) Notably, defendants do not cite any case that dismisses a TILA claim for the types of infirmities they argue are fatal here. 2. Creditor under TILA As a threshold issue, this Court must determine whether each defendant is a creditor as defined in TILA because that statute only regulates creditors. 15 U.S.C. § 1640(a) (making "any creditor who fails to comply" with the disclosure requirements liable); accord May field v. Gen. Elec. Capital Corp., No. 97 Civ. 2786(DAB), 1999 WL 182586, at *2 (S.D.N.Y. Mar.31, 1999). A creditor under TILA is defined as a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of the indebtedness, by agreement. *424 15 U.S.C. § 1602(f); accord 12 C.F.R. § 226.2(a)(17); The definition of a "creditor" also includes "card issuers" in certain instances. 15 U.S.C. § 1602(f); accord 12 C.F.R. § 226.2(a)(17). A "card issuer" in turn is defined as "any person who issues a credit card, or the agent of such person with respect to such card." 15 U.S.C. § 1602(n); accord 12 C.F.R. § 226.2(a)(7). a. VISA and MasterCard Defendants argue that the Complaint is devoid of any allegation that VISA or MasterCard is a creditor under TILA or Regulation Z. Plaintiffs argue that the Complaint sufficiently alleges that VISA and MasterCard are "creditors" because it alleges that VISA and MasterCard are agents of the Issuing Bank defendants within the meaning of TILA. (Compl.śś 35-40, 172.) As agents of the Issuing Bank defendants, plaintiffs argue, VISA and MasterCard fall under the definition of "card issuer" in § 1602(n), and thus are creditors under the last two sentences of § 1602(f). The Official Staff Interpretations of the Federal Reserve Board are "dispositive in construing TILA or Regulation Z unless it is shown that the opinion is demonstrably irrational." Mayfield, 1999 WL 182586, at *3 (citing Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980)); accord Pechinski, 238 F.Supp.2d at 644 (noting that the Federal Reserve Board's Official Staff Interpretations of Regulation Z "are to be given great deference by the judicial branch"). The Official Staff Interpretation for section 226 states, in regard to the agency aspect of the card issuer definition, An agent of a card issuer is considered a card issuer. Because agency relationships are traditionally defined by contract and by state or other applicable law, this regulation does not define agent. Merely providing services relating to the production of credit cards or data processing for others, however, does not make one the agent of the card issuer. In contrast, a financial institution may become the agent of the card issuer if an agreement between the institution and the card issuer provides that the cardholder may use a line of credit with the financial institution to pay obligations incurred by use of credit card. Official Staff Interpretations, 12 C.F.R. § 226, Supp. I, ś 2(a)(7) (2003). Defendants argue that plaintiffs have not sufficiently pled an agency relationship between VISA and MasterCard, and their respective member banks. They contend that plaintiffs have not alleged any facts that support a conclusion of agency, and any facts that plaintiffs do allege clearly indicate that VISA and MasterCard are not their member banks' agents under the Official Staff Interpretations. Plaintiffs allege that their allegations satisfy the Rule 8(a) notice pleading standard with respect to the agency issue. Whether the plaintiffs have sufficiently pled an agency relationship between VISA and MasterCard and their respective member banks is irrelevant to this Court's analysis at this stage. Even assuming that plaintiffs have properly alleged the agency relationship, their claims that seek to hold VISA and MasterCard liable as creditors under TILA still must fail. The Federal Reserve Board has ruled that a card issuer can only be considered a creditor, assuming it has not otherwise satisfied the definition of creditor, where that card issuer extends credit.[15]*425 See 12 C.F.R. § 226.2(a)(17)(iii)-(iv) (creditor means, inter alia, "any card issuer that extends either open-end credit or credit that is not subject to a finance charge" or "any card issuer that extends closed-end credit that is subject to finance charge or is payable by written agreement in more than four installments"). There are no allegations in the Complaint that either VISA or MasterCard ever extended any type of credit to plaintiffs. Thus, neither VISA nor MasterCard can be considered a creditor under TILA, and they are not liable for any alleged TILA violations. b. Non-Card Issuing Bank Defendants Defendants also argue that like VISA and MasterCard, the non-card issuing bank companies of the actual card-issuing bank defendants, such as the bank holding parent companies, are not alleged to be creditors under TILA.[16] Defendants note that there are no allegations that any of these companies themselves, as opposed to through a subsidiary, extend credit or issue payment cards. Plaintiffs argue that the bank holding parent companies can be held liable under TILA for their subsidiaries' faulty disclosures because they exercised such dominion over their subsidiaries that the two are fairly treated as one, which is effectively a veil-piercing argument. Initially, the Complaint contains no allegations that could hold Citibank (Nevada) N.A. and Household Credit Card Service, Inc. liable as creditors under TILA, either directly or derivatively. Thus, this Court finds that the Complaint fails to state a claim as to Count IV against Citibank (Nevada) N.A. and Household Credit Card Service, Inc., and dismisses that claim against them with prejudice. With respect to the bank holding parent companies, determining the proper pleading standard for a veil-piercing claim has been labeled a "knotty question" by some courts in this district. See, e.g., United Feature Syndicate, Inc. v. Miller Features Syndicate, Inc., 216 F.Supp.2d 198, 222-23 (S.D.N.Y.2002); Old Republic Ins. Co. v. Hansa World Cargo Serv., Inc., 170 F.R.D. 361, 374 (S.D.N.Y. 1997). The "knotty" issue arises when the specific veil-piercing claim alleged by a plaintiff is based on allegations of fraud. See United Feature Syndicate, 216 F.Supp.2d at 223. This Court finds that the more well-reasoned rule is that where the veil-piercing claims are not based on allegations of fraud, the liberal "notice pleading" standard of Rule 8(a) applies. See United Feature Syndicate, 216 F.Supp.2d at 223; Old Republic Ins., 170 F.R.D. at 375; Rolls-Royce Motor Cars, Inc. v. Schudroff, 929 F.Supp. 117, 122 (S.D.N.Y.1996). Where the veil-piercing claims are based on allegations of fraud, however, the heightened pleading standard of Rule 9(b) is the lens through which those allegation must be examined. See *426 United Feature Syndicate, 216 F.Supp.2d at 223; Old Republic Ins., 170 F.R.D. at 375; Rolls-Royce, 929 F.Supp. at 122; see also Network Enters., Inc. v. APBA Offshore Prods., Inc., No. 01 Civ. 11765(CSH), 2002 WL 31050846, at *6 (S.D.N.Y. Sept.12, 2002) ("Given that the elements of fraud need not undergird the veil-piercing claim, it necessarily follows that Rule 9(b) does not come into play where fraud is not part of it."). As an example of the difference, New York law permits a court to pierce the corporate veil where either there is a fraud or when the corporation has been used as an alter-ego. An alter-ego can be established where the parent exercised complete domination of the subsidiary and that domination was used to commit a fraud or wrong. United Feature Syndicate, 216 F.Supp.2d at 223; Old Republic Ins., 170 F.R.D. at 374; Rolls-Royce, 929 F.Supp. at 121-22. Thus, at least in New York, since veil-piercing can be established without proving any element of fraud, the heightened pleading standard does not apply to every veil-piercing allegation. Without determining what substantive law, and thus what pleading standard, applies,[17] this Court finds that even under the liberal notice pleading standard of Rule 8(a), plaintiffs have failed to allege a TILA claim based on a veil-piercing theory. The only allegations in the entire Complaint that support plaintiffs' veil-piercing theory are the allegations, which appear consistently in each section addressing each bank holding company, that the bank holding company "exercised such dominion and control over its subsidiaries... that it is liable according to the law for the acts of such subsidiaries under the facts alleged in this Complaint," and that the card-issuing defendants were wholly owned subsidiaries of their respective bank holding companies. (Compl.śś 41-72.) These purely conclusory allegations cannot suffice to state a claim based on veil-piercing or alter-ego liability, even under the liberal notice pleading standard. See Old Republic Ins., 170 F.R.D. at 375; Zinaman v. USTS New York, Inc., 798 F.Supp. 128, 132 (S.D.N.Y.1992); see also Network Enters., 2002 WL 31050846, at *7 ("The imposition of successor liability, as with corporate veil-piercing, requires the allegation and proof of specific facts, none of which have been alleged in the proposed Amended Complaint."); Kingdom 5-KR-41, Ltd. v. Star Cruises PLC, No. 01 Civ. 2946(AGS), 2002 WL 432390, at *12 (S.D.N.Y. March 20, 2002) ("[I]n order to overcome the presumption of separateness afforded to related corporations, [plaintiff] is required to plead more specific facts supporting its claims, not mere conclusory allegations."). Plaintiffs have failed to allege any facts to support their conclusion that the bank holding companies exercised such dominion and control over its subsidiaries. The unadorned invocation of dominion and control is simply not enough. For example, there is no allegation as to how or why the holding companies have dominion and control over the subsidiaries. Cf. Welch Allen, Inc. v. New Image Indus., Inc., No. 97 Civ. 240, 1998 WL 238623, at *2 (N.D.N.Y. May 5, 1998) (finding that complaint alleged parent and subsidiary have the same officers, use the same name in their advertising, and parent otherwise controls actions of subsidiary); Rolls-Royce, 929 F.Supp. at 122 (finding that complaint alleged parent used its control over subsidiary to hide assets from creditors *427 by transferring proceeds between the two companies). Plaintiffs' reliance on cases noting that veil-piercing is a very fact-specific analysis, conducted only after a full examination of the parties and their relationships, is misplaced. The plaintiffs in those cases alleged sufficient facts to support their allegations of veil-piercing. See, e.g., Federal Trade Comm'n v. Citigroup, Inc., 239 F.Supp.2d 1302, 1306-07 (N.D.Ga.2001) (finding that complaint alleged that parent acquired subsidiary and merged the domestic consumer finance businesses together); Arrington v. Colleen, Inc., Nos. AMD 00-191, AMD 00-421, 2000 U.S. Dist. Lexis 20651, at *20 (D.Md. Aug. 7, 2000) (finding that complaint alleged defendants' intimate involvement in creation and ownership of corporate entity and defendants' facilitation of the engagement of the wrong alleged). c. Citigroup and Diners Club The Citibank defendants separately argue that there are no allegations that defendants Citigroup and Diners Club are creditors under TILA. Citigroup, the bank holding company, argues that there are no allegations that it issued credit cards or extended credit to anyone. Defendants argue that plaintiffs' allegation that Citigroup issues, credit cards through its subsidiaries does not satisfy the requirements of TILA. Lastly, defendants argue that Diners Club is not a creditor under TILA since it is not the entity that issues Diners Club cards or extends credit to Diners Club cardholders.[18] While plaintiffs argue that Citigroup exercised such dominion and control over its card-issuing subsidiaries that it should be held liable for those subsidiaries' TILA violations, the Complaint contains the barest of allegations of dominion and control. (Compl.ś 46.) For the same reasons that this Court found plaintiffs' allegations against the other bank holding companies insufficient as to TILA claims based on a veil-piercing theory, the allegations against Citigroup are also insufficient. As for Diners Club, defendants attach an "exemplar cardmember agreement" to their brief and argue that the agreement evidences that Citibank (South Dakota) is the true issuer of Diners Club charge cards and the actual entity that extends credit to the cardholder. Defendants argue that the agreement can be considered because the plaintiffs incorporated it into their Complaint by reference and it is integral to the Complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); In re Merrill Lynch & Co, Inc. Research Reports Sec. Litig., 02 MDL 1484(MP), 2003 WL 21500293, at *1 (S.D.N.Y. June 30, 2003). Indeed, "[o]rdinarily our consideration is limited to the face of the complaint and documents attached to the complaint are incorporated by reference, but here we may consult [the exemplar] Agreement ... because [it][is] integral to [plaintiffs'] claims and [plaintiffs] had notice of that information." Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir.2000); accord Merrill Lynch, 2003 WL 21500293, at *1 (noting that "documents `integral' to the complaint and relied upon in it, even if *428 not attached or incorporated by reference" can be considered on a motion to dismiss). However, this Court declines to consider the "exemplar agreement" provided by defendants since this Court is not satisfied that this agreement is the form agreement any of the plaintiffs signed and Diners Club did not inform the Court how many different form agreements it has for its cardmembers. Without such information, it would be inappropriate to consider this "exemplar agreement" on a motion to dismiss. This Court is confident that this issue can be developed fully in discovery. Accordingly, Count IV must be dismissed with prejudice as to VISA, MasterCard, Citibank (Nevada) N.A., and Household Credit Card Service, Inc. Count IV is dismissed without prejudice and with leave to replead against defendants Citigroup, Inc., Bank of America Corporation, Bank One Corporation, J.P. Morgan Chase & Co., Providian Financial Corp., Household International, Inc., and MBNA Corporation. Finally, defendants' motion to dismiss Count TV as to the card-issuing defendants is denied. 3. Actual Damages Defendants contend that plaintiffs' claim for actual damages under TILA for disclosure violations must be dismissed since plaintiffs have not alleged detrimental reliance. Plaintiffs counter that detrimental reliance is not an element of an actual damages claim under TILA, and even if it is, they have pled such reliance. A private right of action under TILA exists for civil liability against any creditor who fails to comply with any requirement imposed under TILA. 15 U.S.C. § 1640(a) (2003). A plaintiff may pursue "any actual damages sustained by [him] as a result of the failure" to make the required disclosures, and/or so-called statutory damages, which are capped at $500,000. 15 U.S.C. § 1640(a)(1)-(2). It is well-established that a plaintiff must show detrimental reliance to establish actual damages for a TILA violation. See Demry v. Citibank (South Dakota), N.A, No. 01 Civ. 9959(HB), 2003 WL 179772, at *4 (S.D.N.Y. Jan.24, 2003); Schuster v. Citibank (South Dakota), N.A, No. 01 Civ. 5940(LMM), 2002 WL 31654984, at *3 (S.D.N.Y. Nov.21, 2002); Gold Country Lenders v. Smith, 289 F.3d 1155, 1157 (9th Cir.2002); Turner v. Beneficial Corp., 242 F.3d 1023, 1026-28 (11th Cir.2001) (en banc); Perrone v. General Motors Acceptance Corp., 232 F.3d 433, 436-40 (5th Cir.2000); Peters v. Jim Lupient Oldsmobile Co., 220 F.3d 915, 916-17 (8th Cir. 2000); Stout v. J.D. Byrider, 228 F.3d 709, 718 (6th Cir.2000); see also Bizier v. Globe Fin. Servs., Inc., 654 F.2d 1, 4 (1st Cir. 1981) (noting, in dicta, that "such conventional contract-law elements as damages and causation must be shown in addition to a threshold showing of a violation of a TILA requirement"). This Court agrees with those courts and declines to deviate from the rule requiring detrimental reliance for a claim of actual damages under TILA. The statute's language, as well as its legislative history, supports such a finding. Section 1640(a)(1) specifically states that a plaintiff may recover actual damages sustained "as a result" of a TILA violation. 15 U.S.C. § 1640(a)(1). Notably, § 1640(a)(2), which provides for statutory damages, contains no such limiting or causal connection language. See 15 U.S.C. § 1640(a)(2); see also Perrone, 232 F.3d at 436 ("While the actual damages provision requires a causal connection with the disclosure violation, 15 U.S.C. § 1640(a)(1), the statutory damages provision dispenses with causation and imposes a penalty solely for failure to comply with disclosure requirements."). This Court agrees with *429 the reasoning of the Fifth Circuit in Perrone: Without a causation requirement, actual damages would overlay the statutory damages for no apparent reason. Conceptually, however, statutory and actual damages perform different functions: statutory damages are reserved for cases in which the damages caused by a violation are small or difficult to ascertain. Actual damages may be recovered where they are probably caused by the violation. 232 F.3d at 436; accord Turner, 242 F.3d at 1025-26 ("Under this regime, statutory damages provide at least a partial remedy for all material TILA violations; however, actual damages ensure that consumers who have suffered actual harm due to a lender's faulty disclosures can be fully compensated, even if the total amount of their harm exceeds the statutory ceiling on TILA damages."). Further, the legislative history of the 1995 amendments to TILA states, "Congress provided for statutory damages because actual damages in most cases would be nonexistent or extremely difficult to prove. To recover actual damages, consumers must show that they suffered a loss because they relied on an inaccurate or incomplete disclosure." H.R.Rep. No. 193, 104th Cong., 1st Sess. (1995); accord Turner 242 F.3d at 1028; Demry, 2003 WL 179772, at *4. Thus, this Court finds that detrimental reliance is an element of a claim for actual damages under TILA, and therefore joins the five circuit courts and two other judges in this district to do so. a. Presumption of Reliance Plaintiffs maintain that if detrimental reliance is required for a claim for actual damages under TILA, such reliance should be presumed from the allegations in the Complaint in this "failure to disclose" case. Plaintiffs contend that where the TILA violation is a material omission, there should be a presumption of reliance as there is in the securities fraud arena.[19]See Affiliated Ute Citizens v. United States, 406 U.S. 128, 153, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); Mills v. Else. Automobile-Lite Co., 396 U.S. 375, 382, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Defendants urge this Court to adopt the reasoning in Perrone, and hold that reliance cannot be presumed for a TILA claim. The Fifth Circuit in Perrone, addressing this exact issue, noted that the plaintiffs in that case "attempted] to analogize TILA to Rule 10b-5 by stating the mandate that lessors disclose certain costs associated with obtaining credit ... makes the existence of such costs `material' facts." Perrone, 232 F.3d at 439-40. The Fifth Circuit held, however, that "`[ujnlike 10b-5, the roots of Truth in Lending are not in protection against common law fraud, and while any Truth in Lending violation necessarily makes the task of shopping for credit more difficult, that does not translate into a `material' violation.'" Perrone, 232 F.3d at 440 (quoting McCoy v. Salem Mortgage Co., 74 F.R.D. 8, 13 (E.D.Mich. 1976)). Plaintiffs stress that the remedial nature of TILA as a consumer protection statute favors a more liberal interpretation of the type of reliance needed for actual damages. This Court disagrees and finds *430 that the better reasoned conclusion is that actual detrimental reliance must be proven for actual damages, and no presumption of reliance can be applied. As the Fifth Circuit held in Perrone, violations of TILA are dissimilar from violations of Rule 10b-5 in the securities fraud context concerning reliance. The TILA reliance requirement stems from the express language in the statute as opposed to common law fraud in Rule 10b-5 cases.[20]See 15 U.S.C. § 1640(a)(1) (plaintiff may recover "any actual damages sustained by [her] as a result of the failure" to make the required disclosures); Basic, Inc. v. Levinson, 485 U.S. 224, 243-44,108 S.Ct. 978, 99 L.Ed.2d 194 (1988) ("We agree that reliance is an element of a Rule 10b-5 cause of action. Reliance provides the requisite causal connection between a defendant's misrepresentation and a plaintiffs injury."); Perrone, 232 F.3d at 436-40 ("[U]nlike 10b-5, the roots of Truth in lending Act are not in protection of common law fraud,"); see also Turner, 242 F.3d at 1028 ("We find that [the statute's] language indicates that the statute's authors intended that plaintiffs must demonstrate detrimental reliance in order to be entitled to actual damages under TILA"). This Court declines to turn aside from the express language of the statute. Further, any presumption of reliance for actual damages claims would obliterate the differences between actual damages claims and statutory damages claims, a result that Congress could not have intended. In TILA, Congress created a measure to protect consumers from deception in a growing field. As part of that measure, Congress provided for two different types of damages, actual and statutory. See 15 U.S.C. § 1640(a)(1)-(2). "Under this regime, statutory damages provide at least a partial remedy for all material TILA violations; however, actual damages ensure that consumers who have suffered actual harm due to a lender's faulty disclosures can be fully compensated, even if the total amount of their harm exceeds the statutory ceiling on TILA damages." Turner, 242 F.3d at 1026 (emphasis added); accord Perrone, 232 F.3d at 436. Plaintiffs attempt to homogenize the differences between actual and statutory damages undermines the statute and Congressional purpose. Actual damages were not meant to be available for every violation of TILA; statutory damages fill that role. Notably, alternative types of damages are not available under Rule 10b-5 or any securities fraud laws. Plaintiffs complain that without a presumption of reliance on omission cases, actual damages claims would be too difficult to prove. However, that is precisely the statutory scheme that Congress created. "This difficulty seems to have been the impetus for establishing a scheme of statutory damages, and it seems likely that if actual damages could be computed by a simple formula, no statutory damage provision would have been necessary." McCoy, 74 F.R.D. at 13. In fact, it is precisely "[b]ecause such a showing is so difficult, [that] statutory damages are available to a plaintiff who can prove a technical violation." McCoy, 74 F.R.D. at 13. Further, as the Fifth Circuit found in Turner, "[t]he legislative history emphasizes that TILA provides for statutory remedies on proof of a simple TILA violation, and requires the more difficult showing of detrimental reliance to prevail on a claim for actual damages." 242 F.3d at 1028. *431 Lastly, the remedial nature of TILA does not compel a different result. Unlike securities actions, even without the presumption of reliance consumers may hold defendants liable for TILA violations through statutory damages claims. Thus, consumers can further TILA's goals without receiving actual damages. Moreover, TILA's remedial nature does not permit this Court to ignore an express element of a private right of action found in the text of the statute. Accordingly, plaintiffs cannot rely on a presumption of reliance and therefore must prove detrimental reliance. As plaintiffs have not alleged detrimental reliance, their claims for actual damages under TILA are dismissed without prejudice and with leave to renew. 4. TILA Conspiracy and Aiding or Abetting Lastly, defendants argue that plaintiffs' TILA claims against the non-card issuing defendants should be dismissed because there can be no liability for conspiracy to violate TILA, nor any liability for aiding and abetting a violation of TILA. Plaintiffs argue that this Court should interpret TILA broadly due to its remedial nature and find that there are private causes of action for conspiracy to violate TILA, and aiding and abetting TILA violations. To do otherwise, plaintiffs contend, would allow circumvention of TILA by "ingenious malefactors." TILA provides that "any creditor who fails to comply with any requirement imposed under this part ... with respect to any person is liable to such person." 15 U.S.C. § 1640(a). As this Court noted previously, plaintiffs have not properly alleged that the non-card issuing defendants are creditors under TILA or that they are liable for their subsidiary's TILA violations. There is no express private right of action anywhere in the statutory scheme for conspiracy to violate TILA or aiding and abetting TILA violations. TILA creates a duty to disclose certain information only on behalf of "creditors" as that term is defined in TILA. See 15 U.S.C. § 1631(a)-(b) (2003). Creditors, in turn, are liable for violations of that duty only to the individuals or entities to whom they owe that duty. See 15 U.S.C. § 1640(a). TILA does not extend that duty or the benefits of that duty to anyone else. Nor does TILA make creditors liable to anyone for any violations of the disclosure requirements. Thus, based on the plain language of the statute there is no claim for conspiracy or aiding and abetting under TILA. The only decision addressing this issue has also found that the language in TILA does not provide for secondary liability-See Weiner v. Bank of King of Prussia, 358 F.Supp. 684, 692-94 (E.D.Pa.1973). The Weiner court found that "the Truthin-Lending Act makes explicit that only a person to whom the duty of disclosure is owed can recover for breach of that duty. It is obvious that in order for a bank to be obligated to disclose credit terms to an individual, that individual must be doing business with that bank." Weiner, 358 F.Supp. at 692. In an analogy particularly relevant to this action, the Weiner court held that the "Truth-in-Lending laws establish duties owed by creditors to their customers. There is no provision in any of these statutes similar, for example, to Section 1 of the Sherman Act, 15 U.S.C. § 1, which makes `conspiracy' or `combination' an actionable wrong." Weiner, 358 F.Supp. at 693. Thus, the Weiner court held that a claim for conspiracy to violate TILA is not actionable.[21] See Weiner, 358 F.Supp. at 694. *432 The Supreme Court analysis in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A, 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994), and the Second Circuit's interpretation of Central Bank in Dinsmore v. Squadron, Ellenoff Plesent, Sheinfeld & Sorkin, 135 F.3d 837 (2d Cir.1998), are instructive. In Central Bank the Supreme Court held that there was no aiding and abetting civil liability for a § 10(b) claim. See 511 U.S. at 176-77, 191, 114 S.Ct. 1439. The Court held that § 10(b) itself did not prohibit aiding and abetting the commission of a manipulative or deceptive act. Central Bank, 511 U.S. at 177, 114 S.Ct. 1439. The Supreme Court noted that, as evidenced by companion securities statutes to § 10(b), "Congress knew how to impose aiding and abetting liability when it chose to do so." Central Bank, 511 U.S. at 176, 114 S.Ct. 1439. It also held that "the statutory text controls the definition of conduct covered by [the statute]." Central Bank, 511 U.S. at 175, 114 S.Ct. 1439. Permitting a claim for aiding and abetting a § 10(b) claim would "extend liability beyond the scope of conduct prohibited by the statutory text." Central Bank, 511 U.S. at 177, 114 S.Ct. 1439. Having concluded that the statute does not explicitly provide for aiding and abetting liability, the Court held that that finding resolved the case. Central Bank, 511 U.S. at 177, 114 S.Ct. 1439. Nevertheless, despite its reliance on the interpretation of the statute's language, the Supreme Court went further and reviewed the statute's legislative history and policy considerations. The Supreme Court concluded that neither the legislative history nor public policy considerations created a cause of action for aiding and abetting a § 10(b) violation. See Central Bank, 511 U.S. at 181-189, 114 S.Ct. 1439. The Second Circuit's opinion in Dinsmore expanded the Central Bank holding to prohibit claims for conspiracy to violate the securities laws. 135 F.3d at 842. The Second Circuit noted, [c]ritically, as in the case of aiding and abetting, there is no mention of conspiracy in the text of § 10(b). Just as Congress clearly knew how to impose aiding and abetting liability when it chose to do so, thereby suggesting that its absence from § 10(b) should not be disregarded, the existence of statutes expressly providing for conspiracy liability ... warrants the same conclusion. Dinsmore, 135 F.3d at 842. The Dinsmore court also found that there was no support in the legislative history for a claim for conspiracy. See 135 F.3d at 841-42. This Court finds the reasoning in Central Bank, Dinsmore, and Weiner[22] persuasive. Since TILA's statutory text does not provide for conspiracy or aiding and abetting claims, and the legislative history supports that conclusion, claims for conspiracy *433 or aiding and abetting cannot stand.[23] Plaintiffs' reliance on Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386(KMW), 2002 WL 319887 (S.D.N.Y. Feb.28, 2002), is misplaced. In that case, the court held that Central Bank and Dinsmore do not automatically preclude a finding of a claim for conspiracy or aiding and abetting where such an action was not explicitly provided for by the statute. See Wiwa, 2002 WL 319887, at *16. The Court noted, [n]either Central Bank nor Dinsmore holds that a statute must explicitly allow for secondary liability in order for a court to hold aiders and abetters or coconspirators liable. Rather, Central Bank and Dinsmore support the proposition that the scope of liability under a statute should be determined based on a reading of the text of the specific statute. Wiwa, 2002 WL 319887, at *16. In that regard, the Wiwa court found that both the language and legislative history of the Torture Victim Protection Act of 1991 supported liability for aiders and abetters. See Wiwa, 2002 WL 319887, at *16. But that is not the case here. Nothing in either TILA's text or legislative history supports a claim for aiding and abetting or conspiracy. Thus, the Wiwa case is inapposite.[24] Accordingly, defendants motion to dismiss Count IV is granted in part and denied in part, as follows: (1) Count IV in its entirety is dismissed with prejudice as to defendants VISA, MasterCard, Citibank (Nevada), and Household Credit Card Service; (2) Count IV in its entirety is dismissed without prejudice and with leave to replead as to defendants Citigroup, Inc., Bank of America Corporation, Bank One Corporation, J.P. Morgan Chase & Co., Providian Financial Corp., Household International, Inc., and MBNA Corporation; (3) the claims in Count IV for actual damages are dismissed without prejudice and with leave to replead; (4) Count TV is dismissed with prejudice as to plaintiffs' claims of conspiracy and/or aiding and abetting; and (5) the motion to dismiss Count IV as to all other parties is denied. Conclusion Accordingly, defendants' motion to dismiss the Complaint is denied in part and granted in part. Specifically, defendants motion to dismiss Counts I through III is denied. Their motion to dismiss Count IV is denied in part and granted in part, as follows: (1) Count IV in its entirety is dismissed with prejudice as to defendants VISA, MasterCard, Citibank (Nevada) N.A., and Household Credit Card Service, Inc.; (2) Count IV in its entirety is dismissed without prejudice and with leave to replead as to defendants Citigroup, Inc., Bank of America Corporation, Bank One Corporation, J.P. Morgan Chase & Co., Providian Financial Corp., Household International, Inc., and MBNA Corporation; (3) the claims in Count IV for actual damages are dismissed without prejudice and *434 with leave to replead; (5) Count IV is dismissed with prejudice as to plaintiffs' claims of conspiracy and/or aiding and abetting; and (6) the motion to dismiss Count TV as to all other parties is denied. Further, defendants First USA Bank, N.A. and Bank One Corporation motion to compel arbitration of plaintiff Ruga's claims is granted. Also, defendants Bank of America, N.A. (USA) and Bank of America Corporation's motion to compel arbitration with respect to plaintiff Ross's claims is granted. To the extent permitted by this Memorandum and Order, plaintiff shall serve and file a further amended complaint no later than August 15, 2003. SO ORDERED. NOTES [1] The records of BOA indicate that a Nancy Ross is also a responsible party for the only credit card account that plaintiff Ross is responsible for at BOA. However, since Nancy Ross is not a named plaintiff to this action, this Court will treat plaintiff Ross's account as if it were held in his name alone. (Uhlig Decl. śś 4-6.) [2] Plaintiffs' reliance on Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002), for the proposition that the arbitration agreement was never entered into between plaintiffs Ruga and Ross and First USA and BOA, respectively, is misplaced. The Second Circuit in Specht noted, at least under California law, that receipt of a physical document containing contractual terms or notice thereof, puts a person on inquiry notice of all the terms in that physical document. Specht, 306 F.3d at 31. The Specht court found that in "circumstances ... where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms." 306 F.3d at 32. This is in contrast to this action where each plaintiff received a physical copy of the arbitration agreement. [3] Although plaintiffs have alleged that First USA and Bank One on the one hand, and BOA and BOA Corp. on the other, are agents of each other, and that the parents are the alter egos of the subsidiaries, the factual basis for such a finding is lacking. More importantly, defendants do not rely on these allegations in their argument for arbitration. [4] Plaintiffs' argument that the question of arbitrability is a "legal issue" and not a "Claim" as that word is used in the First USA arbitration clause is without merit. The term "Claim" is defined in the arbitration clause to include "[a]ny claim, dispute or controversy." (Barrett Decl. Ex. 1.) Clearly, the question of whether the arbitrator or the Court should determine arbitrability can, and should, be deemed a claim, dispute or controversy. [5] Plaintiffs' argument also ignores the fact that other courts have found claims alleging horizontal price-fixing claims to be subject to arbitration. See, e.g., Acquaire, 906 F.Supp. at 836-37; Gemco, 671 F.Supp. at 978-80. [6] Plaintiffs' reliance on AlliedSignal, Inc. v. B.F. Goodrich Co., 183 F.3d 568 (7th Cir. 1999), is equally misplaced. In AlliedSignal, the Seventh Circuit unremarkably held that the claim in that case was not subject to arbitration because it was outside the scope of the arbitration clause in the agreement between the parties. 183 F.3d at 572-73. As one court has already noted, "AlliedSignal must be confined to its facts." LCA, Inc. v. Sharp Elec. Corp., No. 00-3283, 2000 WL 1222044, at *3 (N.D.Ill. Aug.22, 2000). Further, as noted above plaintiffs' antitrust claims in this action are within the scope of the arbitration clauses at issue here. [7] Plaintiffs' suggestion that the arbitration clauses at issue here are unconscionable because they appear in "pre-printed forms" and are allegedly in "fine print," are without merit. The use of pre-printed forms does not convert an otherwise valid contract into an unconscionable contract. See Bischoff v. DirecTV, Inc., 180 F.Supp.2d 1097, 1105 (C.D.Cal.2002); Lloyd v. MBNA America Bank, N.A., No. 00 Civ. 109, 2001 WL 194300, at *4 (D.Del. Feb. 22, 2001). Further, the arbitration clauses in this action are not in "fine print" and include "block-capitalized warnings" to setoff the arbitration clause from the rest of the agreement. Thus, they are not unconscionable. See Bank One, N.A. v. Coates, 125 F.Supp.2d 819, 831 (S.D.Miss.), affd, 34 Fed. Appx. 964 (2002); Dorsey v. H.C.P. Sales, Inc., 46 F.Supp.2d 804, 808 (N.D.Ill.1999). [8] The Requests listed in the NAF Code include, inter alia, requests for amendment, subpoena, discovery order, and continuance. (Wolson Decl. II, NAF Code at 40.) [9] Plaintiffs' argument that the NAF Code unreasonably subjects them to a "loser pays" cost-shifting provision is unavailing. The applicable NAF Code only permits an award of fees and costs in favor of a party as permitted by law. (Wolson Decl. II, NAF Code Rule 37(C).) Thus, plaintiffs are in no worse a position under the NAF Code then they would be in federal court. [10] Plaintiffs' remaining arguments that the First USA and BOA arbitration clauses are unconscionable are also without merit. The First USA arbitration clause's alleged one-sided "carve-out" is not unconscionable under Delaware law. See Hale, 2001 WL 687371, at *4-7 (holding that an identical arbitration clause was not unconscionable under Delaware law). Similarly, the BOA arbitration clause's alleged one-sided "carve-out" does not make the arbitration agreement unenforceable under Arizona law. See Valdiviezo v. Phelps Dodge Hidalgo Smelter, Inc., 995 F.Supp. 1060, 1066-67 (D.Ariz. 1997) (holding that clause permitting defendant to unilaterally chose between two alternative dispute resolution mechanisms is enforceable under Arizona law). [11] Plaintiffs further argue that compelling arbitration in this case would require the Court to "splinter" proof in a manner that contravenes the Seventh Amendment. Plaintiffs cite no case authority for their position and this Court has found none. An issue of splintering proof in violation of the Seventh Amendment does not arise in this case because the claims litigated in federal court will be between different parties than the claims litigated in the arbitration. [12] Notably, plaintiffs cite no authority for their proposition that arbitration should be denied where plaintiffs cannot effectively and efficiently proceed against all defendants in a single proceeding. Nor does this Court find any support for such a contention. [13] The cases that plaintiffs cite for support are inapposite. Specifically, Broughton v. Cigna Healthplans of Cal, 21 Cal.4th 1066, 90 Cal.Rptr.2d 334, 988 P.2d 67 (1999), upon which plaintiffs heavily rely, involves a statute unique to California, and is thus irrelevant here. [14] Moreover, VISA correctly notes that a principal and its agent may be incapable of conspiring under Section One. See, e.g., Fuchs Sugars & Syrups, Inc. v. Amstar Corp., 602 F.2d 1025, 1031 & n. 5 (2d Cir.1979). However, at the motion to dismiss stage, a factual predicate for finding that VISA and its members are agents of each other is lacking. Thus, this issue is more appropriate for a motion for summary judgment, and this Court declines to dismiss the Complaint on that basis at this time. [15] Counsel for the plaintiffs' invitation to ignore the pertinent section of Regulation Z in favor of the broader statutory language is declined. Congress delegated the task of carrying out the purpose of TILA to the Federal Reserve Board, see 15 U.S.C. § 1604(a), and those regulations are to be deferred to when construing the language of TILA. See Milhollin, 444 U.S. at 566, 100 S.Ct. 790; Mayfield, 1999 WL 182586, at *3. [16] The non-card issuing defendants are as follows: defendants Citigroup, Inc.; Bank of America Corporation; Bank One Corporation; J.P. Morgan Chase & Co.; Providian Financial Corp.; Household International, Inc.; MBNA Corporation; Citibank (Nevada) N.A.; and Household Credit Card Service, Inc. (Compl.śś 41, 45, 49, 52, 56, 61, 66, 68, 70.) Defendants Citibank (Nevada) N.A. and Household Credit Card Service, Inc. are alleged to merely process certain general purpose card transactions. (Compl.śś 45, 68.) The remaining non-card issuing bank defendants are bank holding parent companies of the card-issuing defendants. [17] Notably, the parties have not argued what substantive law should apply to the veil-piercing analysis. [18] The Citigroup defendants also argue that plaintiffs have failed to allege that defendant Universal Financial Corp. ("UFC") is a creditor under TILA because it only issued cards to businesses, not consumers, during the relevant time period, and thus is outside the scope of TILA. As accurate a picture as that may be of UFC's practices during the relevant time period, it is evidence outside the Complaint and this Court will not consider it. Thus, plaintiffs' allegations that UFC issued cards to one or more plaintiffs suffice to allege that UFC was a creditor under TILA on a motion to dismiss. [19] Of course, plaintiffs also allege improper disclosure violations of TILA, as well as omission violations of TILA. (Coml.ś 170(b).) Plaintiffs do not argue that a presumption of reliance should be applied for the improper disclosure claim. Thus, allegations of actual detrimental reliance are necessary for claims of actual damages under TILA for improper disclosure claims. [20] It is noteworthy that Plaintiffs argue for a fraud-based presumption of reliance on this issue, but elsewhere insist that TILA based claims are not subject to the same heightened pleading standard as fraud claims. [21] Although the Weiner court did not address a claim for aiding and abetting a TILA claim, its reasoning applies to those claims as well. [22] Plaintiffs' attempt to distinguish Weiner based on the fact that the opinion was written thirty years ago, and based on an alleged significantly different factual scenario. Plaintiffs' arguments are unavailing. Plaintiffs do not articulate why this Court should disregard Weiner based simply on its age. Plaintiffs do not argue that the language of TILA has changed significantly in the last thirty years, or that the state of the law has changed. Further, the Weiner court did not rely on the facts before it to find that a claim for conspiracy did not exist. Rather, it based its ruling on the fact that conspiracy was not included within the terms of the statute itself. See Weiner, 358 F.Supp. at 692-94; see also Dinsmore, 135 F.3d at 843 ("The Supreme Court in Central Bank did not in any way rely on the level of scienter at issue, but on the fact that aiding and abetting was not included within the terms of the statute itself.") [23] It is also noteworthy that TILA was amended in 1982 to eliminate "arrangers" of credit from the definition of creditor under TILA. Pub.L. No. 97-320, 96 Stat. 1469, § 702 (1982); Pub.L. No. 96-221, 94 Stat. 132, § 602 (1980). This amendment further evidences Congress's intent to prohibit liability for aiding or abetting a TILA violation. [24] Further, plaintiffs' argument that a claim for conspiracy and aiding and abetting should be found to be implied in TILA if the Court reads the statute liberally in accord with its remedial nature, is unpersuasive. As the Supreme Court stated in Central Bank, "[p]olicy considerations cannot override our interpretation of the text and structure of the Act." 511 U.S. at 188, 114 S.Ct. 1439.

Electronically Filed Supreme Court SCWC-XX-XXXXXXX 30-DEC-2019 01:19 PM SCWC-XX-XXXXXXX IN THE SUPREME COURT OF THE STATE OF HAWAI#I LOLA L. SUZUKI, Petitioner/Claimant-Appellant, vs. AMERICAN HEALTHWAYS, INC., Respondent/Employer-Appellee, and ST. PAUL TRAVELERS, Respondent/Insurance Carrier-Appellee, and LORNE K. DIRENFELD, M.D.; GARY N. KUNIHIRO, ESQ.; and SHAWN L.M. BENTON, ESQ., Respondents/Appellees. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. AB 2007-497 (DCD NO. 2-06-14727) and CASE NO. AB 2007-498 (DCD NO. 2-07-04617)) ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.) Petitioner/claimant-appellant Lola L. Suzuki’s application for writ of certiorari, filed on December 6, 2019, is hereby dismissed. See HRS § 602-59; HRAP Rule 40.1(a). DATED: Honolulu, Hawai#i, December 30, 2019. /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna /s/ Richard W. Pollack /s/ Michael D. Wilson 

14 Mich. App. 695 (1968) 166 N.W.2d 14 PEOPLE v. SMOGOLESKI Docket No. 3,186. Michigan Court of Appeals. Decided December 2, 1968. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and David F. Betz, Prosecuting Attorney, for the people. Donald G. Jennings, for defendant. *697 C. KAUFMAN, J. Defendant Glen Smogoleski appeals from his conviction for forgery.[1] The defendant was arrested September 26, 1965, and the preliminary examination was held on September 27, 1965, before the justice who issued the warrant. At this examination defendant requested appointment of counsel and was advised that it would be necessary to waive examination and request the appointment of counsel upon arraignment on the information in circuit court, whereupon the matter would be remanded for an examination if requested. Defendant thereupon waived examination and was remanded to the county jail. On October 4, 1965, defendant was arraigned on the information in circuit court and counsel was appointed for him. At counsel's request, the matter was remanded for examination. A preliminary examination was held April 21, 1966, before a municipal judge, a judge other than the magistrate who issued the warrant. After defendant's request for court-appointed counsel and before his arraignment in circuit court, handwriting samples were obtained from him by police officers at the jail, which were used at his trial. Defendant's motions to suppress this evidence were denied and defendant was convicted upon a jury trial. The issues before this Court are twofold and may be summarized as follows: (1) must defendant's preliminary examination be conducted by the magistrate who originally issued the warrant, and (2) did the taking of the handwriting samples from *698 defendant after his request for court appointed counsel violate defendant's constitutional rights? As to the first issue, the law[2] provides that the magistrate who issues the warrant shall conduct the preliminary examination. The defendant contends that an examination before a municipal judge, other than the one who issued the warrant, is fatal to the jurisdiction of the circuit court. This matter was first raised on a motion to quash. At the actual examination, counsel indicated a readiness to proceed with the examination. It would appear to be a question of venue rather than jurisdiction. The defendant is entitled to have the preliminary examination before the magistrate who issued the warrant, but this issue must be raised before submitting to the preliminary examination. The record discloses that the defendant's counsel was ready, that he cross-examined the witnesses, and made no objection to the municipal judge conducting the examination. Further, no prejudice to defendant is claimed or appears. The basis of circuit court jurisdiction is a finding of probable cause filed by a magistrate. People v. Dochstader (1936), 274 Mich 238. The municipal judge who conducted the preliminary examination could have had jurisdiction, therefore we must hold that the claimed error goes to venue only. In the absence of a timely demand that the examination be held before the magistrate who issued the warrant, the parties may stipulate to or waive the matter not being heard by the original magistrate. The import of this decision is not to condone the practice of having the examination before a magistrate other than the one who issues the warrant, rather it is a finding of no prejudice to defendant. *699 Where the issue is timely raised the examination must be heard by the magistrate who signed the warrant. While parties may not stipulate to confer jurisdiction upon a court, they may stipulate to waive improper venue. Turning to the second issue raised on this appeal, it is appropriate at this time to comment upon the methods and manner of appointing attorneys in cases where indigents are involved. It appears that in some areas of this state defendants are required to waive examination in order to be arraigned in circuit court where an attorney may be appointed. There must be a more efficient method of communication established between arraigning magistrates and the circuit court to obviate this circuitous method of waiver and remand. The fact of an indigent defendant should be communicated to the circuit court of the county so that counsel may be appointed for an examination without the necessity of a waiver and subsequent remand. The present practice as aforementioned is not favored and henceforth attorneys for indigents are to be appointed for examination by the circuit court. No delay is necessary. We are here presented with a factual situation where an indigent defendant requests the appointment of an attorney. A delay is caused by the method of that attorney's appointment, during which defendant gives a handwriting sample to officers. It appears that there was no coercion used in obtaining the sample. Was this such an interrogation after request for an attorney as is forbidden by Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974)? Miranda provides that interrogation must cease once a defendant indicates a desire not to talk or a desire to see an attorney. *700 Since deciding Miranda, the Supreme Court has taken careful steps to limit its applicability. Hard on the heels of Miranda, Schmerber v. California (1966), 384 US 757 (86 S Ct 1826, 16 L Ed 2d 908), came upon the scene and held that the accused is not entitled to counsel in the taking of a blood sample, which may be equated with the taking of a handwriting sample. The more recent case of Gilbert v. California (1967), 388 US 263 (87 S Ct 1951, 18 L Ed 2d 1178), stated as follows: "The taking of the exemplars did not violate petitioner's Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of `an accused's communications, whatever form they might take, and the compulsion of responses which are also communications,' * * *, and not `compulsion which makes a suspect or accused the source of "real or physical evidence."' * * * One's voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection." In regard to the Sixth Amendment privilege of right to counsel, guaranteed by Miranda, Gilbert holds that the taking of the exemplars was not a "critical" stage of the criminal proceedings entitling petitioners to the assistance of counsel. Defendant for the first time on appeal raises the question of the prohibition provided in CLS 1961, § 600.2144 (Stat Ann 1962 Rev § 27A.2144) against using a sample signature created after the controversy concerning which the criminal proceedings were brought. It appears that, although objection *701 was made to admission of the evidence, it was predicated on a violation of Fifth and Sixth Amendment privileges and not as a violation of the statute. This Court need not pass on the controversy as to whether the aforementioned section of the revised judicature act of 1963 applies only to civil matters. People v. Sturman (1920), 209 Mich 284, indicates that the signatures may not be compelled, but may be used if voluntarily given. No objection was made either in Sturman or in the instant case predicated on this statute. Sturman holds that by not interposing an objection based on this statute to have the paper containing the picture excluded for comparison purposes, a defendant waives the benefit of same. Defendant's conviction is affirmed. McGREGOR, P.J., and HOLBROOK, J., concurred. NOTES [1] CL 1948, § 750.248, as amended by PA 1964, No 101 (Stat Ann 1965 Cum Supp § 28.445). [2] CL 1948, § 766.3 (Stat Ann 1954 Rev § 28.921); CL 1948 § 766.4 (Stat Ann 1954 Rev § 28.922).

[Cite as Foley v. Nussbaum, 2011-Ohio-6701.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO MARTIN FOLEY : Plaintiff-Appellant : C.A. CASE NO. 24572 v. : T.C. NO. 08CV9226 JOEL A. NUSSBAUM : (Civil appeal from Common Pleas Court) Defendant-Appellee : : .......... OPINION Rendered on the 23rd day of December , 2011. .......... VLAD SIGALOV, Atty. Reg. No. 0070625, 3515 Springdale Road, Cincinnati, Ohio 45251 Attorney for Plaintiff-Appellant STEPHEN M. YEAGER, Atty. Reg. No. 0011841, 205 W. Fourth Street, Suite 1280, Cincinnati, Ohio 45202 Attorney for Defendant-Appellee .......... FROELICH, J. {¶ 1} Martin Foley appeals from a judgment of the Montgomery County Court of Common Pleas, which dismissed with prejudice his complaint for personal injuries due to his failure to comply with discovery orders. {¶ 2} On January 20, 2005, a vehicle driven by Joel Nussbaum struck a  2 vehicle in which Foley was a passenger on Interstate 70 in Montgomery County, Ohio. {¶ 3} In January 2007, Foley filed a complaint for damages for personal injuries suffered in the accident. Montgomery C.P. Case. No. 2007 CV 483. However, Foley never served Nussbaum with the complaint. In November 2007, after notice to Foley, the court dismissed Foley’s complaint without prejudice pursuant to Civ.R. 41(B)(1). {¶ 4} Foley refiled his complaint in October 2008, and Nussbaum was properly served. 1 Nussbaum filed an answer and, on the same day, filed interrogatories and a request for production of documents. {¶ 5} On January 15, 2009, Foley responded with hand-written answers to the interrogatories; in several respects, particularly related to his medical treatment and the amount of damages, Foley’s only response to the interrogatories was that he “will supplement.” The interrogatories also indicated that Liberty Mutual Insurance had paid his medical bills. Foley did not supplement his responses. {¶ 6} In March 2009, Nussbaum filed a motion to compel discovery pursuant to Civ.R. 37. According to the affidavit attached to Nussbaum’s motion to compel, Foley had not responded to Nussbaum’s discovery request in the months since the requests were made, despite several attempts by Nussbaum’s attorney to communicate with Foley’s attorney. The affidavit also stated that, at a scheduling 1 During the course of these proceedings, Nussbaum also filed a third-party complaint naming Foley’s employer and the driver of the vehicle in which Foley had been a passenger. Liberty Insurance Corp., which paid Foley’s workers’ compensation benefits, was permitted to intervene. These claims are not relevant to this appeal.  3 conference on February 25, 2009, Foley’s attorney represented to the court that he had received his client’s answers to the discovery requests, but acknowledged that this information still had not been provided to Nussbaum’s attorney. The trial court did not rule on this motion. {¶ 7} In October 2009, Nussbaum filed a second motion to compel discovery; he also requested that he be paid for the expenses he incurred in the filing of the motion. Foley opposed the motion on the basis that he had signed authorizations for Nussbaum to obtain his medical records and had sent all medical records that were in his possession to Nussbaum. Nussbaum responded that, although he had received some release authorizations, “the set of medical records finally produced, albeit untimely, [was] nowhere near the entirety of the alleged medical treatment that [Foley was] claiming in the subject motor vehicle accident.” The trial court overruled the motion to compel “at this time” because, by providing releases, Foley “authorized [Nussbaum] to secure the required documents upon [his] own initiative.” {¶ 8} The trial court referred the case for mediation, which was unsuccessful, and the case was returned to the court. The trial court set January 15, 2010, as the deadline for trial materials exchange and scheduled the trial for February 9, 2010. {¶ 9} On January 15, 2010, Nussbaum filed his designation of trial materials. One week later, Nussbaum filed a motion in limine seeking to exclude any such materials filed thereafter by Foley, because he (Foley) had missed the deadline.  4 {¶ 10} The trial court conducted a pre-trial conference in January 2010, at which Nussbaum reiterated his discovery demands and his claim that Foley had not produced discovery. The court observed that “counsel for [Foley] did not deny the lack of production but indicated that some of the difficulty is that the government has not produced the required billing and payment information.” The trial court ordered that, “if [Foley] anticipates that [he] will be unable to provide the medical billing information, then [he] shall join as parties those subrogated interests on or before February 19, 2010 by filing an amended complaint, leave for which is hereby granted.” The court’s entry further stated that “[f]ailure to produce the above listed discovery material may subject [Foley] to sanctions, up to and including dismissal of [his] claims.” {¶ 11} On February 10, 2010, the trial court vacated the trial date and set a scheduling conference for March 23, 2010; the conference was later rescheduled for April 23, 2010. At the pre-trial conference on April 23, Nussbaum made an oral motion to dismiss the case because of Foley’s continued failure to provide discovery. The trial court orally granted the motion. No documents journalizing either the motion or the trial court’s decision were filed at the time. {¶ 12} In early May, Foley filed a motion requesting that the trial court reconsider its decision to dismiss the case, noting that Foley “was not in a position to 41A Plaintiff Martin Foley’s case as it had been voluntarily dismissed once 2 3 before.” , The trial court overruled this motion. In its decision, the court 2 Civ.R. 41(A) sets forth the circumstances under which a plaintiff may voluntarily dismiss a complaint, and provides that, if a case has been voluntarily dismissed previously, a subsequent notice of dismissal generally “operates as an adjudication upon the merits.”  5 acknowledged that “[a]pparently the matter has been overlooked and verbal rulings of the Court’s orders have not been made of record. Accordingly, by this Entry and Order the Court confirms stated rulings, ***.” The court recounted the prior dismissal for failure to prosecute, the multiple motions to compel discovery, and Foley’s repeated assurances that discovery would be forthcoming. The court also noted that, when the deadline for trial materials passed, Foley still did not “deny the 4 lack of production,” but blamed difficulty he had in working with the government. The trial court noted that it had warned Foley that failure to comply with the discovery order could lead to sanctions, including dismissal, and still, Foley did not provide the materials. {¶ 13} In overruling Foley’s motion for reconsideration, the court further stated: “In his Motion, [Foley] asserts that he provided all the information he had to the defense on or about January 6, 2010. This is not consistent with [Foley’s] counsel’s acknowledgment during the Final Pretrial Conference *** that [Foley] failed to produce trial materials and requested discovery. Moreover, counsel does not provide any explanation why there was no compliance whatsoever with the verbal order of production made during the Final Pretrial Conference or the February 10, 2010 Court Order. Accordingly, [Foley’s] Motion for reconsideration is OVERRULED and [his] claims are dismissed.” 3 Although Foley characterized the resolution of the prior case as a voluntary dismissal, the trial court actually dismissed the case on its own initiative for want of prosecution when Foley failed to respond to a show cause order. 4 It appears from the record that some or all of Foley’s medical bills were paid through a workers’ compensation claim. Liberty Insurance Company was the workers’ compensation carrier for Foley’s employer, and it eventually intervened in this case. It is unclear what medical records “the government” held.  6 {¶ 14} Foley raises two assignments of error on appeal from the trial court’s dismissal of his claim and denial of his motion to reconsider. {¶ 15} “THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY DISMISSING PLAINTIFF’S CLAIMS IS [SIC] A DISCOVERY SANCTION PURSUANT TO CIV.R. 37(B)(2)(c) WITHOUT NOTICE AND HEARING PURSUANT TO CIV.R. 41 THUS, VIOLATING THE DUE PROCESS GUARANTEES [OF] THE UNITED STATES AND OHIO CONSTITUTIONS.” {¶ 16} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DISMISSING PLAINTIFF’S CLAIMS FOR THE REASON THAT THERE HAD BEEN SUBSTANTIAL COMPLIANCE WITH THE COURT’S ORDER.” {¶ 17} Foley contends that the trial court abused its discretion and violated due process in failing to give him notice that his complaint might be dismissed for the alleged discovery violation and in failing to conduct a hearing about the alleged discovery violation before dismissing his claim. He also asserts that his due process rights were violated by the facts that the motion to dismiss was made orally and that the trial court did not promptly journalize its decision to grant the motion to dismiss. {¶ 18} Civ.R. 37(B) provides various sanctions for failure to comply with discovery, including the harshest sanction of dismissal of the action. Civ.R. 37(B)(2)(c). The determination of which sanction to impose is a matter left to the sound discretion of the trial court and will not be reversed on appeal unless the trial court abused its discretion. Quonset Hut, Inc. v. Ford Motor Co. (1997), 80 Ohio St.3d 46, 47. A trial court abuses its discretion when its decision is “unreasonable,  7 arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. {¶ 19} In exercising its discretion in discovery matters, it is the task of the trial court to determine which party must bear the burden and expense of acquiring documents requested in discovery that are not in possession of either party. Simmons v. Merrill, Lynch, Pierce, Fenner & Smith (1977), 53 Ohio App.2d 91, 97, fn.6; Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 85. {¶ 20} The courts of Ohio have long recognized that the interests of justice are better served when courts address the merits of claims and defenses at issue rather than using procedural devices to resolve pending cases. Moore v. Emmanuel Family Training Center, Inc. (1985), 18 Ohio St.3d 64, 70. The harsh sanction of dismissal should be reserved for cases when a party’s conduct falls substantially below what is reasonable under the circumstances, evidences a complete disregard for the judicial system or the rights of the opposing party, or when the failure to comply with discovery orders is due to willfulness or bad faith. Id; Barrow v. Miner, 190 Ohio App.3d 305, 2010-Ohio-5022, ¶18, citing Ward v. Hester (1973), 36 Ohio St.2d 38, syllabus. Where a party’s conduct is “negligent, irresponsible, contumacious or dilatory,” it may provide grounds for a dismissal with prejudice for a failure to prosecute or to obey a court order. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 632, citing Schreiner v. Karson (1977), 52 Ohio App.2d 219, 223. Adequacy of Notice  8 {¶ 21} Foley contends that he was deprived of an opportunity to “respond to an oral motion for sanctions” or to “file a written response,” as permitted by Civ.R. 6(D) and “Civ.R. 7(b)(2)(D).” {¶ 22} Civ.R. (6)(D) relates to the time for filing motions, and states: “A written motion *** and notice of the hearing thereof shall be served not later than seven days before the time fixed for the hearing ***.” Civ.R. 7 does not include a subsection “(b)(2)(D);” we presume that Foley relies on Civ.R. 7(B)(2), which allows a court to forego an oral hearing on a motion and rely on “brief written statements of reasons in support and opposition” to expedite its business. This rule provides that motions shall be in writing “unless made during a hearing or a trial.” Because no written motion was filed in this case, and because Nussbaum’s motion to dismiss was made during a conference with the court at which Foley’s attorney was present, it is not clear that Civ.R. 6(D) or 7(B)(2) applied. However, as we will discuss below, there is no question that Foley was entitled to notice and an opportunity to be heard before his claim was dismissed for failure to comply with the court’s discovery orders. {¶ 23} Foley also relies on Civ.R. 41(B), which states: “Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff’s counsel, dismiss an action or claim.” (Emphasis added.) Civ.R. 41(B) does not specify what type of notice is required. {¶ 24} In addition to the Civil Rules on which he relies, Foley cites several cases in support of his argument that he was given neither reasonable notice of nor  9 a reasonable opportunity to respond to or “defend” the motion for dismissal. See Quonset Hut, 80 Ohio St.3d 46; Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99; and Edison Systems, Inc. v. Ficken (July 11, 1991), Franklin App. No. 90AP-1389. These cases recognize “‘a basic tenet of Ohio jurisprudence that cases should be decided on their merits,’” as well as Civ.R. 41(B)(1)’s requirement that a plaintiff receive notice that the court is considering involuntary dismissal. Further, they hold that the notice requirement of Civ.R. 41(B)(1) applies to all dismissals with prejudice, including those entered pursuant to Civ.R. 37(B)(2)(c) for failure to comply with discovery orders. Ohio Furniture, 22 Ohio St.3d at 101, citing Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3; Quonset Hut, 80 Ohio St.3d at 48; Ficken, supra. The cases also observe that, where the potential dismissal is for failure to comply with a discovery order, “[n]otice of intention to dismiss with prejudice gives the non-complying party one last chance to obey the court order in full” or to rebut the allegation that the party has failed to comply, which furthers the goal of deciding cases on the merits. Ohio Furniture, 22 Ohio St.3d at 101; Quonset Hut, 80 Ohio St.3d at 48; Ficken, supra. There is no question that, when involuntary dismissal is being considered as a sanction for a discovery violation, notice and an opportunity to respond is required. {¶ 25} The pivotal question in this case is whether Foley had the required notice and opportunity to respond. Several cases decided since the Supreme Court’s holdings in Ohio Furniture and Quonset Hut have held that a court order compelling timely discovery under a threat of dismissal constitutes such notice, especially where a party has repeatedly failed to produce discovery materials, has  10 been given extensions of trial dates, and has been given other opportunities to bring legitimate discovery problems to the court’s attention. {¶ 26} For example, in Aydin Company Exchange Inc. v. Marting Realty (1997), 118 Ohio App. 3d 274, the plaintiff left the country “regarding business dealings” six days after being served with notice of a defendant’s intent to take his deposition. The plaintiff requested a continuance of the discovery deadline for “at least 120 days,” without providing any explanation for his sudden departure or his inability to return for his deposition. The magistrate denied the request for a continuance and ordered the plaintiff to attend his deposition or be subject to sanctions, including dismissal with prejudice. The plaintiff did not attend the deposition. After several defendants moved for sanctions, the magistrate held a hearing, at which the plaintiff did not appear. The magistrate recommended dismissal of the plaintiff’s claims, with prejudice and at his cost. The trial court overruled plaintiff’s objections and adopted the magistrate’s decision. {¶ 27} On appeal, the trial court’s judgment dismissing the case was affirmed. The appellate court, relying on Ohio Furniture, held that, under the circumstances presented, the trial court did not abuse its discretion in determining that the plaintiff’s failure to attend his deposition was willful and in bad faith. It also concluded that the magistrate’s order denying the plaintiff’s request for a continuance, in which it informed the plaintiff that his failure to appear at the deposition would be grounds for dismissal with prejudice, satisfied the notice requirement of Civ.R. 41. {¶ 28} In Coe v. Grange Mutual Casualty Co., Erie App. No. E-06-057 and  11 E-06-058, 2007-Ohio-2823, another appellate district similarly concluded that a trial court’s order compelling discovery on threat of dismissal constituted the notice required by Civ.R. 41(B)(1). {¶ 29} In this case, the trial court had expressly warned Foley that his failure to comply with discovery requests to provide information about his medical expenses and records could result in dismissal of his complaint. And his attorney participated in the pre-trial conference at which the motion to dismiss was discussed. Although we do not have the record of that conference, Foley’s attorney does not claim that he was denied an opportunity to explain the failure to provide discovery; it appears that the trial court was simply unpersuaded by his explanation for failing to provide discovery or to join the parties in possession of the documents, as instructed by the court. Under these circumstances, we cannot conclude that Foley was denied notice or an opportunity to be heard on this issue. Abuse of Discretion {¶ 30} Foley also contends that the trial court abused its discretion in concluding that dismissal was an appropriate sanction for his alleged discovery violations. {¶ 31} In determining whether the sanction of dismissal is warranted, the trial court should consider “the history of the case; all the facts and circumstances surrounding the noncompliance, including the number of opportunities and the length of time within which the faulting party had to comply with the discovery or the order to comply; what efforts, if any, were made to comply; the ability or inability of the faulting party to comply; and such other factors as may be appropriate.” Russo  12 v. Goodyear Time & Rubber Co. (1987), 36 Ohio App.3d 175, 178. {¶ 32} Nussbaum had filed several motions to compel discovery, and Foley’s failure to provide medical records or sufficient information for Nussbaum to obtain those records had been discussed at several pre-trial conferences. The trial date was continued several times, due, in part, to the ongoing discovery dispute. Also, when Foley was unable to obtain the medical records, he failed to join the parties in possession of the records, as instructed by the trial court. It is clear from the trial court’s February 2010 order that Foley had been warned that involuntary dismissal was a potential consequence of his continued failure to provide discovery materials. It also seems to be undisputed that such materials had not yet been provided by Foley in April 2010. {¶ 33} Although Foley repeatedly asserted in the trial court proceedings that he had signed releases allowing Nussbaum to obtain all of his medical records, the record of this case belies that claim. For example, Foley’s witness list included only one medical professional: Dr. Sohail Jilani, M.D., of Cass City, Michigan. But in his deposition, Foley testified that, after he was treated in the emergency room at Miami Valley Hospital, the next person from whom he sought treatment was a chiropractor “in Caro” (presumably in Michigan), whose name he did not remember. Foley encouraged defense counsel to search for the name of this chiropractor in his workers’ compensation records; it does not appear that he ever identified this chiropractor himself. Such a disclosure does not constitute a good faith effort to comply with a discovery request, even if – as Foley alleges – some type of medical release had been signed which would have permitted Nussbaum to obtain records.  13 Such a release was of little value if the medical professional who treated Foley had not been identified. {¶ 34} Moreover, the court instructed Foley as to the course he should take if he were unable to obtain the medical and billing records himself: he was instructed to join as a party or parties those who possessed the records. Foley has offered no explanation on appeal – and appears to have offered no explanation in the trial court – for his failure to comply with this order. His brief suggests that, because “Liberty Mutual was filing a motion to intervene,” he may have believed that he need not join other parties. This conclusion was dubious and, in any event, Liberty Mutual’s intention to intervene did not excuse or prevent Foley from filing an amended complaint, as instructed by the trial court. {¶ 35} Based on the extended period of time which passed without the production of Foley’s medical records or sufficient information to allow Nussbaum to obtain those records, without the amendment of his complaint to include the parties in possession of such records and without any effort on his part to enlist the court’s help in obtaining the documents, the trial court could have reasonably concluded that Foley’s failure to provide the requested discovery was motivated by his willfulness, irresponsibility, or bad faith. As such, we cannot conclude that the trial court abused its discretion in dismissing Foley’s complaint. {¶ 36} The assignments of error are overruled {¶ 37} The judgment of the trial court will be affirmed. .......... FAIN, J. and DONOVAN, J., concur.  14 Copies mailed to: Vlad Sigalov Stephen M. Yeager Hon. Dennis Adkins 

348 U.S. 373 (1955) SAPIR v. UNITED STATES. No. 534. Supreme Court of United States. Decided March 7, 1955. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. Sam Dazzo for petitioner. Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Joseph A. Barry for the United States. PER CURIAM. The petition for writ of certiorari is granted. We believe that the judgment of the Court of Appeals of October 20, 1954, reversing and remanding this cause with instructions to dismiss the indictment was correct. It is not necessary for us to pass on the question presented under its subsequent judgment of November 17, 1954, directing a new trial. We vacate the latter judgment, which directed the new trial, and we reinstate the former one which instructed the trial court to dismiss the indictment. MR. JUSTICE DOUGLAS, concurring. Petitioner was convicted by the jury of a conspiracy to defraud the United States. Petitioner moved for a judgment of acquittal. The District Court denied the motion. On appeal, the Court of Appeals held that that motion should have been granted, as the evidence *374 was insufficient to convict. 216 F. 2d 722. It accordingly reversed and remanded the cause with instructions to dismiss the indictment. Later, the Government moved to amend the judgment so as to grant a new trial on the ground of newly discovered evidence. The Court of Appeals granted the motion of the Government. The granting of a new trial after a judgment of acquittal for lack of evidence violated the command of the Fifth Amendment that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The correct rule was stated in Kepner v. United States, 195 U. S. 100, at 130, "It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered . . . ." If the jury had acquitted, there plainly would be double jeopardy to give the Government another go at this citizen. If, as in the Kepner case, the trial judge had rendered a verdict of acquittal, the guarantee against double jeopardy would prevent a new trial of the old offense. I see no difference when the appellate court orders a judgment of acquittal for lack of evidence. If petitioner had asked for a new trial, different considerations would come into play, for then the defendant opens the whole record for such disposition as might be just. See Bryan v. United States, 338 U. S. 552. And see Trono v. United States, 199 U. S. 521; Stroud v. United States, 251 U. S. 15, 18; Francis v. Resweber, 329 U. S. 459, 462. Moreover, a reversal by the appellate court on grounds of error that infected the trial would also be different, as Palko v. Connecticut, 302 U. S. 319, shows. But an acquittal on the basis of lack of evidence concludes the controversy, as the Kepner case holds, and puts it at rest under the protection of the Double Jeopardy Clause, absent a motion by the defendant for a new trial.

90 Mich. App. 752 (1979) 282 N.W.2d 466 GIDDAY v. WAKEFIELD Docket No. 78-223. Michigan Court of Appeals. Decided June 19, 1979. Stephen P. Ferris, for plaintiff. Moore, Sills, Poling, Wooster, Sinn & Taylor, P.C., for defendant. Before: M.J. KELLY, P.J., and M.F. CAVANAGH and MacKENZIE, JJ. MacKENZIE, J. The plaintiff appeals as of right from a December 28, 1977 order of the Oakland County Circuit Court granting the defendant's motion for summary judgment against the plaintiff. Plaintiff had filed a complaint against defendant on July 8, 1976, alleging that the defendant slandered the plaintiff at a meeting of the Highland Township Board of Trustees on July 9, 1975. At the meeting, the plaintiff's wife, Sharyn Gidday, the township treasurer, requested a key to an *754 area of the township offices where the defendant's office was located. The defendant, the township clerk, resisted the request, contending that an unauthorized person had been seen in her office and had gone through her files. The defendant then requested that a security partition be constructed in order to protect her records. The plaintiff's wife inquired whether the defendant wished to protect the records from her. The defendant responded that she wanted to keep the records safe "from your husband, Mrs. Gidday!" The defendant then reiterated that her files had been "rifled" and that a person saw "this man" in her office. In his complaint, the plaintiff alleged that the defendant's statements were not spoken in furtherance of any legislative debate, judicial proceeding, executive or statutory duty or military affair, and thus were spoken without benefit of privilege or immunity. The plaintiff's complaint had additional counts alleging that the remarks invaded the plaintiff's privacy and intentionally inflicted mental distress on the plaintiff. He sought a total of $2,500,000 in damages, $1,000,000 of this figure representing the damages resulting from the alleged defamation. Trial was twice adjourned by agreement of the parties. On October 13, 1977, defendant filed a motion for summary judgment under GCR 1963, 117.2(1), alleging that the plaintiff had failed to state a cause of action upon which the court could grant relief. On December 5, 1977, the motion was granted by the trial judge, who held that the statements were protected under the doctrine of absolute privilege. When reviewing a ruling on a motion for summary judgment, we accept as true all well pleaded *755 facts in the plaintiff's complaint. We then determine whether the claims are so clearly unenforceable as a matter of law that a right to recovery cannot be predicated upon any factual development. Gartside v Young Men's Christian Association, 87 Mich App 335, 337-338; 274 NW2d 58 (1978). In Tocco v Piersante, 69 Mich App 616, 629; 245 NW2d 356 (1976), this Court discussed the doctrine of absolute privilege in defamation cases: "A communication absolutely privileged is not actionable, even though false and maliciously published, whereas proof of actual malice will overcome a qualified privilege. Trimble v Morrish, 152 Mich 624, 627; 116 NW 451 (1908), Lawrence v Fox, [357 Mich 134; 97 NW2d 719 (1959)], Timmis v Bennett, 352 Mich 355; 89 NW2d 748 (1958), Prosser, Torts (4th ed), § 114, pp 776-777. "Michigan has recognized an absolute privilege for communications made by judges during the course of judicial hearings. Ginger v Wayne Circuit Judge, 369 Mich 680; 120 NW2d 842 (1963), Mundy v McDonald, 216 Mich 444; 185 NW 877 (1921). This privilege is well known and universally recognized, albeit sometimes with minor modifications not relevant here. "An absolute privilege is also generally recognized for statements made in the course of legislative proceedings. Prosser, Torts (4th ed), § 114, pp 781-782. This privilege has also been adopted in Michigan. Bolton v Walker, 197 Mich 699; 164 NW 420 (1917), Trebilcock v Anderson, 117 Mich 39; 75 NW 129 (1898), Wachsmuth v The Merchants' National Bank, 96 Mich 426; 56 NW 9 (1893)." In Michigan, the absolute privilege extends to proceedings of subordinate legislative and quasi-legislative bodies. In Wachsmuth v The Merchants' National Bank, 96 Mich 426; 56 NW 9 (1893), it was held that a resolution offered by a city council *756 member to the council, relating to a matter within the member's duty, was absolutely privileged. In Trebilcock v Anderson, 117 Mich 39; 75 NW 129 (1898), a mayor's communication to a city council concerning a veto was deemed absolutely privileged. In Bolton v Walker, 197 Mich 699; 164 NW 420 (1917), words spoken by an ex officio member of the Board of Estimates of the City of Detroit during a discussion of a matter of public concern at a regular meeting of the board were held absolutely privileged. In Powers v Vaughan, 312 Mich 297; 20 NW2d 196 (1945), a report issued by the Detroit Department of Health was deemed absolutely privileged. In the instant case, the defendant was a member of the Board of Trustees of Highland Township. The aforementioned Supreme Court decisions establish that proceedings of local legislative and quasi-legislative bodies are cloaked by an absolute privilege. We thus conclude that the duly convened meeting of the township board may serve as a forum for application of the absolute privilege doctrine. The finding that the proceeding lends itself to application of the doctrine of absolute privilege does not, however, end our inquiry. The fact that a public official is a member of a legislative body and is in attendance at a duly convened proceeding of such body does not afford him an invitation to undertake an unrestricted slanderous campaign against whomever he pleases, concerning whatever he pleases. In addition to being spoken during a legislative or quasi-legislative session, the statements at issue must be made by the public official while in the process of carrying out an official duty. See Wachsmuth v Merchants' National Bank, supra, Brunn v Weiss, 32 Mich App 428; 188 *757 NW2d 904 (1971), Stewart v Troutt, 73 Mich App 378; 251 NW2d 594 (1977). Upon examining the circumstances of the instant case, we conclude that the statements of the defendant were made in the performance of an official duty. Her remarks were spoken during a regularly scheduled meeting of the Board of Trustees. At the meeting, the township treasurer requested a key to a certain area of the township offices. Upon explaining her reasons for opposing the request, the defendant expressed her desire that a security partition be constructed to protect her records. The treasurer inquired as to whether the clerk wished to keep her records safe from her. In responding to the treasurer's question, the defendant stated that she wanted to protect her records from the treasurer's husband, as her files had been gone through and a "particular" man had previously been seen in her office. The statements of the defendant were pertinent to the subject being considered by the board, it being undisputed that the subject was an appropriate matter for the board's consideration. The facts of the instant case resemble the situation in Bolton v Walker, supra, where the Supreme Court held the communications at issue absolutely privileged. In that case, the plaintiff and the defendant were members of the City of Detroit's Board of Estimates. At a duly convened meeting where a matter of the board's concern was under discussion, the defendant imputed that the plaintiff was susceptible to improper influences, such as bribery. The Court held: "[The absolute privilege] doctrine is discussed and finds support in Wachsmuth v National Bank, 96 Mich 426 (56 NW 9, 21 LRA 278); Trebilcock v Anderson, 117 Mich 39, (75 NW 129), and Madill v Currie, 168 Mich *758 561 (134 NW 1004). In the instant case the alleged defamatory words were spoken in debate, by a public officer, in discussing a matter of public concern, in which both he and plaintiff were officially interested and had a duty to perform, and on an occasion when it was properly up for consideration by a legally constituted public body, of which both were members, which had jurisdiction to dispose of the subject under debate and was then in session at a regularly convened meeting. * * * "[W]e are well satisfied as a conclusion of law on the undisputed facts that the occasion presents a privilege absolute, and defendant's request for a directed verdict should have been granted." 197 Mich at 707-708. Although the plaintiff's complaint alleged that the defendant's statements were outside the scope of a legislative debate and were spoken without benefit of privilege or immunity, we are not bound by these statements; they are conclusions of law rather than statements of facts. Because the defendant's statements were pertinent to a discussion of a subject under proper consideration by the Highland Township Board of Trustees, we conclude that the lower court did not err in granting the motion for summary judgment. Affirmed. Costs to defendant-appellee.

FILED NOT FOR PUBLICATION JAN 17 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-10099 Plaintiff - Appellee, D.C. No. 2:10-cr-00468-JAM-1 v. JOSE PENA, MEMORANDUM* Defendant - Appellant. Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding Submitted January 12, 2017** San Francisco, California Before: WALLACE and M. SMITH, Circuit Judges, and ERICKSON,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ralph R. Erickson, District Judge for the U.S. District Court for the District of North Dakota, sitting by designation.  Jose Pena appeals from the judgment following his jury conviction and sentence on one count of conspiracy to manufacture, distribute, or possess with intent to distribute at least 1,000 marijuana plants in violation of 21 U.S.C. §§ 846 and 841(a)(1), and one count of manufacturing at least 1,000 marijuana plants in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Pena first asserts that the district court erred by sustaining six of the government’s hearsay objections during Pena’s testimony. Pena argues that, to support his entrapment defense, he should have been permitted to testify to the content of conversations between him and a confidential informant. Pena, however, never made an offer of proof as to what this excluded testimony would have been. “In the absence of an offer of proof of what the testimony would have been . . . reversal will lie only where there is plain error.” United States v. Kupau, 781 F.2d 740, 745 (9th Cir. 1986). Pena has not shown that the exclusion of his objected-to testimony affected his substantial rights or seriously affected the “fairness, integrity, or public reputation of judicial proceedings.” United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). Accordingly, the district court did not commit plain error by sustaining the government’s objections. 2  Next, Pena contends that there was insufficient evidence to support the jury’s finding that the charged marijuana conspiracy involved at least 1,000 plants, which triggered a ten-year mandatory minimum sentence. The jury’s finding must be upheld if “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review de novo a district court’s denial of a motion for acquittal based on sufficiency of the evidence. United States v. Wanland, 830 F.3d 947, 952 (9th Cir. 2016). Here, there was ample evidence to support the jury’s finding. The government agents who conducted the raid on the grow site, who also had extensive experience investigating marijuana-related crimes, counted 1,019 plants at the site. The touchstone is “readily observable evidence of root formation,” not the existence of leaves, as Pena urges. See United States v. Robinson, 35 F.3d 442, 446 (9th Cir. 1994) (quotation marks omitted). The agents testified to their involvement in the plant count, how they did it, what qualified as a plant, and specifically testified to the number that had “viable root balls.” Pena’s counsel cross-examined the agents on this point. Accordingly, the record contained 3 sufficient evidence for the jury to find that the conduct involved at least 1,000 plants. Pena’s third argument is that the district court erred by failing to instruct the jury on the definition of a “plant.” As Pena did not object to the jury instructions at the time they were given, the failure to give a specific jury instruction is reviewed for plain error. Conti, 804 F.3d at 981. Pena has failed to show that any error in the jury instructions affected his substantial rights or seriously affected the “fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Olano, 507 U.S. at 736). Thus, the district court’s jury instructions were not plainly erroneous. Pena’s final argument is that the district court erred by applying a four-level aggravating role enhancement to Pena’s sentencing calculation. Under United States Sentencing Guidelines § 3B1.1(a), four levels are added to an offender’s offense level “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” We “review for clear error a district court’s determination that a defendant was an ‘organizer or leader’ for purposes of enhancement under U.S.S.G. § 3B1.1.” United States v. Berry, 258 F.3d 971, 977 (9th Cir. 2001). Pena asserts that there were not five participants in the criminal activity. While Pena was convicted, and three co-defendants pleaded guilty, the last co- 4 defendant, Leonardo Contreras, was acquitted. A preponderance standard, however, rather than a reasonable doubt standard, applies to the district court’s finding that Contreras participated in the criminal activity. A person “may still be a participant in criminal activity even though not criminally convicted.” United States v. Dota, 33 F.3d 1179, 1189 (9th Cir. 1994). The district judge, who was present for all trial proceedings regarding Contreras, found by a preponderance of the evidence that he qualified as a participant despite his acquittal. In fact, there was testimony from the undercover agents that Contreras provided supplies to the grow site and participated in the criminal strategy. Accordingly, the findings that there were five participants and that Pena was the organizer or leader are not clearly erroneous. AFFIRMED. 5 

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT GEORGE FRANKLIN PAGE,  Petitioner-Appellant, v.  No. 02-23 R. C. LEE, Warden, Central Prison, Respondent-Appellee.  Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge. (CA-99-1060-1) Argued: February 27, 2003 Decided: July 28, 2003 Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges. Affirmed in part and dismissed in part by published opinion. Judge Luttig wrote the opinion, in which Judge Williams joined. Judge Gregory wrote an opinion concurring in the judgment. COUNSEL ARGUED: Walter Lamar Jones, CLIFFORD, CLENDENIN, O’HALE & JONES, L.L.P., Greensboro, North Carolina, for Appel- lant. Valerie Blanche Spalding, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: William G. Causey, Jr., High Point, North Carolina, for Appellant. Roy Cooper, Attorney General 2 PAGE v. LEE of North Carolina, NORTH CAROLINA DEPARTMENT OF JUS- TICE, Raleigh, North Carolina, for Appellee. OPINION LUTTIG, Circuit Judge: Petitioner-appellant George Page challenges the validity of his con- viction and death sentence, imposed by a North Carolina court for the shooting death of a North Carolina police officer. He claims that the state trial court erred by denying his request for appointment of a mental health expert, in violation of the Due Process Clause as eluci- dated in Ake v. Oklahoma, 470 U.S. 68 (1985), and by denying his request to interview jurors during voir dire as to their understanding of the concept of "life without parole," in violation of principles established in Kelly v. South Carolina, 534 U.S. 246 (2002), and Sim- mons v. South Carolina, 512 U.S. 154 (1994). As no judge on the panel believes that petitioner has made a substantial showing of the denial of a constitutional right as to his Simmons claim, no certificate of appealability on this claim is issued, and the appeal as to that issue is dismissed. See 28 U.S.C. § 2253(c)(1). We do grant a certificate of appealability on petitioner’s Ake claim. We conclude, however, that the district court did not err in rejecting that claim, and therefore affirm its judgment as to that issue. I. The relevant facts underlying petitioner’s conviction for first degree murder and related other crimes are succinctly set forth in the North Carolina Supreme Court’s opinion affirming petitioner’s con- viction and sentence on direct appeal: [A]t around 8:00 a.m. on 27 February 1995, Sandra McGill was sitting in her apartment when she heard a loud explosion coming from the bar counter. Because she was blind, McGill called maintenance personnel, who discovered that a bullet had gone through her fish tank. The shot was fired by defendant George Franklin Page, who was pointing  PAGE v. LEE 3 a high-powered rifle out the window of his apartment directly opposite McGill’s building. He fired another shot when the maintenance person, Ellis Hollowell, went outside to take a closer look at a hole in the vertical blinds; this shot hit the wall just above Hollowell’s head. Shortly after 9:00 a.m. defendant fired a third shot into a moving vehicle, a cable van. Police Officers E.A. Newsome, A.N. Swaim, M.R. Bol- linger, and J.W. McKenzie of the Winston-Salem Police Department arrived after 9:00 a.m. to inspect McGill’s apartment. While Swaim and Newsome were proceeding to defendant’s building to question the residents, defendant fired two more shots. While the officers radioed for help, he again fired his rifle, and the officers all took cover. Several testified that they saw defendant moving from window to window. Officers John Pratt and Stephen Amos arrived at the scene and drove directly to defendant’s building. Amos was at the hood of the car when defendant fired another shot that went through the patrol car’s back window, then hit Amos in the chest. Pratt, along with officer Steven Sigmon and others, arrived and took Amos to the ambulance. Sigmon testified that he saw the muzzle flash and heard a shot that passed ten feet above his head. Around 9:30 a.m. defendant called his ex-girlfriend, Tamara Mitchell, and stated that his apartment was sur- rounded by police officers and that he thought he had shot someone. At 10:00 a.m. Sergeant Marble, a crisis negotiator, called defendant. After discussion, defendant said he wanted to speak with his clinical psychologist, Dan Pollock, and his psychiatrist, Jason Crandell. Pollock spoke with defendant and implored him to surrender. . . . Negotiations continued until 11:45 a.m. when defendant agreed to go, without weapons, with Crandell and Marble to Pollock’s office. Defendant was taken into custody shortly thereafter. State v. Page, 346 N.C. 689, 693-94 (1997). 4 PAGE v. LEE Petitioner was, for some time before and after the offense, being treated by both a psychiatrist and a psychologist for various disorders. At a pre-trial hearing on March 7, 1996, petitioner, according to the North Carolina Supreme Court, "moved for appointment of a third expert, a forensic psychiatrist, arguing that this type of expert was better equipped than a clinical psychologist to prepare a legal defense." State v. Page, 346 N.C. at 696. There was no dispute that petitioner’s sanity at the time of the offense would be an issue at trial. The trial court, however, denied this motion. It noted that petitioner was being treated by two mental health specialists (a psychiatrist and a psychologist), that these specialists were available to aid petitioner, and thus that there was no need for a third such expert. On direct appeal, petitioner "contend[ed] that the trial court erred in providing the State with access to a forensic psychiatrist while denying his request for the same type of expert." Id. The North Carolina Supreme Court concluded, applying North Carolina’s interpretation of Ake, that, "[g]iven the facts before the trial court when it made its ruling," petitioner "did not demonstrate a particularized need for a forensic psychiatrist or a reasonable likelihood that such an expert would materially assist him in the preparation and the presentation of his case." Id. at 697. Thus, the North Carolina Supreme Court held that the trial court did not err, and it affirmed petitioner’s conviction and sentence. Petitioner then brought his petition for a writ of habeas corpus in federal district court, again raising his Ake claim. The district court concluded that the North Carolina Supreme Court’s adjudication of the claim was neither contrary to nor an unreasonable application of Ake, and denied the petition. Petitioner thereafter moved for a certifi- cate of appealability with this court. Because Judge Gregory con- cluded that, as to this issue, petitioner made a substantial showing of the denial of a constitutional right, we issue a certificate of appeala- bility on petitioner’s claim under Ake. And we now address the merits of that claim.  PAGE v. LEE 5 II. A. As the petition for writ of habeas corpus in this case was filed on December 3, 1999, after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, AEDPA applies to the federal courts’ adjudication of petitioner’s claim. See Beck v. Angelone, 261 F.3d 377, 380 n.3 (4th Cir. 2001). In particular, since the North Caro- lina Supreme Court addressed the merits of petitioner’s Ake claim on direct appeal, 28 U.S.C. § 2254(d) applies.1 Section 2254(d) bars the granting of habeas relief upon any claim adjudicated on the merits in state court unless the petitioner can show that the state court’s deci- sion was either "contrary to" or involved an "unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or an "unreasonable determination of the facts" given the evidence before the state court. B. 1. In Ake v. Oklahoma, the Supreme Court addressed "whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effec- tive defense based on his mental condition, when his sanity at the time of the offense is seriously in question." 470 U.S. at 70. The defendant in that case, Ake, was arrested and charged with murdering two individuals and wounding their children. Although his behavior at the arraignment was "so bizarre that the trial judge, sua sponte, ordered him to be examined by a psychiatrist" to determine whether 1 Petitioner also brought his Ake claim in his post-conviction Motion for Appropriate Relief in North Carolina court. The North Carolina court rejected this claim on the basis of N.C.G.S. § 15A-1419(a)(2), conclud- ing that the claim had already been resolved on direct appeal. We have previously noted that N.C.G.S. § 15A-1419(a)(2) is not a state procedural bar that prevents federal habeas review of the claim. See Smith v. Dixon, 996 F.2d 667, 674 n.10 (4th Cir. 1993). 6 PAGE v. LEE he needed to be committed, id. at 71, the trial court denied his attor- ney’s request for the appointment of a psychiatrist to aid the defense. At trial, Ake attempted to use the testimony of the state psychiatrists who had treated him in the hospital to establish his insanity defense, but the prosecution "asked each of these psychiatrists whether he had performed or seen the results of any examination diagnosing Ake’s mental state at the time of the offense, and each doctor replied that he had not. As a result, there was no expert testimony for either side on Ake’s sanity at the time of the offense." Id. (emphasis in original). The prosecution used this testimony in the sentencing phase as well, to establish Ake’s future dangerousness. The jury convicted Ake and imposed a death sentence. On appeal, Ake challenged as a violation of due process the court’s refusal to provide a court-appointed psychiatrist. The Supreme Court sustained the challenge: "We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will con- duct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id. at 83. The Court had no trouble determining that Ake had established to the trial court that his mental state at the time of the offense would be a substantial factor in his case, and thus concluded that Ake was entitled to the assistance of a psychiatrist. See id. at 86-87. Subsequent to the Supreme Court’s decision in Ake, the North Car- olina Supreme Court set forth the appropriate test by which trial courts in that state are to determine whether expert witnesses should be appointed. Under that test, "[i]n order to make a threshold showing of specific need for the expert sought, the defendant must demonstrate that: (1) he will be deprived of a fair trial without the expert assis- tance, or (2) there is a reasonable likelihood that it will materially assist him in the preparation of his case." State v. Moore, 321 N.C. 327, 335 (1988). "In determining whether the defendant has made the requisite showing of his particularized need for the requested expert, the court ‘should consider all the facts and circumstances known to it at the time the motion for psychiatric assistance is made.’" Id. at 336 (quoting State v. Gambrell, 318 N.C. 249, 256 (1986)). This test  PAGE v. LEE 7 was applied by the North Carolina Supreme Court in evaluating peti- tioner’s Ake claim on direct appeal. See Page, 346 N.C. at 696-97. North Carolina’s test, considered in the abstract, is surely a reason- able interpretation of Ake. Ake does not mandate that the trial court be omniscient, nor does it require the trial court to divine without direction what expert the defendant wishes, nor why such an expert is needed. The phrase within the holding of Ake "assure the defendant access to a competent psychiatrist" is of particular significance. If it appears to the trial court that the defendant already has access to a competent psychiatrist who can assist the defense, it follows that such access has been "assure[d]," and thus that the State need do no more. It is thus not unreasonable to conclude, as has the Eleventh Circuit, that "a defendant must show the trial court that there exists a reason- able probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a funda- mentally unfair trial." Moore v. Kemp, 809 F.2d 702, 712 (11th Cir. 1987). Or, phrased another way, Ake, reasonably read, permits the dispositive inquiry on appellate review to be, "having heard petition- er’s explanation, should the trial judge have concluded that unless he granted his request petitioner would likely be denied an adequate opportunity fairly to confront the State’s case and to present his defense?" Id. at 710. This formulation of the question facing a review- ing court is consistent with North Carolina’s approach to handling the appointment of expert witnesses to indigent defendants. As the North Carolina Supreme Court has formulated a legal test that represents a reasonable reading of Ake, we now turn to the North Carolina Supreme Court’s application of this test to the case before us. 2. Petitioner has presented to this court what can be understood as two distinct arguments, one, that Ake mandates that petitioner have access to a forensic mental health expert (as opposed to a non- forensic expert) when a defendant has shown that his sanity will be a significant factor at the trial, and two, that the availability of Drs. Crandell and Pollock to testify for petitioner did not satisfy the State’s duty under Ake to provide access to a mental health expert, as the two 8 PAGE v. LEE experts could not or would not perform all the tasks (including the non-testimonial tasks) required of a court-appointed defense expert witness, as envisioned by North Carolina’s interpretation of Ake.2 See Gambrell, 318 N.C. at 259 (defense mental health expert witness will "assist[ ] defendant in evaluating, preparing, and presenting his defense in both the guilt and sentencing phases"). For the reasons that follow, neither of these arguments is availing to petitioner.3 2 Petitioner did not make this second argument, nor anything approxi- mating this argument, to the North Carolina Supreme Court, as an exami- nation of his brief to that court reveals. See Def-App’s Brief, Rec. on App. Vol. 6, Ex. C, at 6-15 (contending only that petitioner’s expert wit- nesses were incompetent because, one, Dr. Pollock was easily impeach- able, and two, that neither witness was forensically trained). 3 A magistrate judge was assigned to petitioner’s case when it was before the federal district court. Within ten days of submission of the magistrate judge’s recommendation, petitioner filed his objections to the magistrate judge’s recommendation. The sum total of petitioner’s written objections to the recommendation of the magistrate judge was as follows: Now comes petitioner, by and through undersigned counsel, who respectfully objects to the recommendations of the United States Magistrate Judge as required by Rule 72(b) of the Federal Rules of Civil Procedure. As undersigned counsel is unaware of any new authority for the issues raised in the brief in support of the habeas petition counsel relies on the argument presented in that brief. Respectfully submitted this the 14th day of March, 2002. Pet.’s Objections to Recomm. of Magis. Jud., Rec. on App. Vol. 1, Doc- ument No. 20. Federal Rule of Civil Procedure 72 (b) states that, "[w]ithin 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations." (emphasis added). Petitioner obviously did not satisfy the requirement of this Rule. As we have long held, the failure to raise objections to a magistrate judge’s recommendations waives the right to appellate review. See United States v. Schronce, 727 F.2d 91, 93- 94 (4th Cir. 1984). Although not yet specifically addressed by our circuit in a published opinion, other circuits have held that the failure to raise an objection "sufficiently specific to focus the district court’s attention  PAGE v. LEE 9 The first of these arguments is easily dismissed. Ake speaks only of the aid of a "competent psychiatrist," not a "forensic" psychiatrist. There is no suggestion in Ake that a non-forensic psychiatrist is "in- competent" for purposes of aiding a defendant in preparing a defense in which one’s sanity is at issue. Nor is it true that, as a matter of fact, a non-forensic mental health expert is categorically "incompetent" to assist a defendant. It is not unreasonable at all, then, to conclude that Ake does not require a forensic psychiatrist, provided that the mental health expert to which the defendant does have access is otherwise "competent." Indeed, this is the only plausible reading of Ake. Thus, because petitioner does not point to any evidence in the record tending to show that Drs. Crandell and Pollock fell below this standard of competency, the North Carolina Supreme Court’s refusal to hold that the trial court erred in denying petitioner’s request for a forensic mental health expert is clearly a reasonable application of Ake. The second argument is equally unavailing. As to this argument, we need only look to the pre-trial hearing wherein the motion was addressed and decided, to identify the arguments made to the court by petitioner and the composite of information that was before the trial court when it ruled on the motion for appointment of the additional mental health expert. At that hearing, the prosecutor initiated the discussion on the motion for appointment with the following: on the factual and legal issues that are truly in dispute" waives any appel- late review. United States v. 2121 E. 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). In particular, a general objection of the kind advanced by petitioner is insufficient to avoid waiver. See id.; Howard v. Secretary of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir. 1991); Loc- kert v. Faulkner, 843 F.2d 1015, 1019 (7th Cir. 1988) ("Just as a com- plaint stating only ‘I complain’ states no claim, an objection stating only ‘I object’ preserves no issue for review."); Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). Although, for the reasons that appear, petitioner’s arguments are unavailing, petitioner’s failure to object to the magistrate judge’s recommendation with the specificity required by the Rule is, standing alone, a sufficient basis upon which to affirm the judgment of the district court as to this claim. 10 PAGE v. LEE The final motion that we want to hear today is a motion by the defendant for a court to appoint a psychiatrist and/or psychologist to assist them and I will just let Mr. Eubanks [petitioner’s trial counsel] be heard. . . . He further has the services of a private doctor, Dr. Jason Crandell, who’s treated him for over a year, and Dr. Dan Pollock, who’s a psychologist who I understand sees him practically every week in the jail, although he’s not appointed and I’m not sure whether he’s qualified to testify in court. J.A. 201-202. Based upon this representation by the prosecution, it is unquestionable that the trial court understood that petitioner already "ha[d] the services of a private doctor" and "a psychologist" who "sees him practically every week in the jail." A short time later, petitioner’s trial counsel explained that the motion for the additional appointment was made because it was believed that petitioner’s two treating mental health experts would not be "totally independent and impartial," because the State intended to call them as witnesses: Your Honor, Mr. Page — our information — the State is using certain medical witnesses, I take it, to already have them available. Dr. Crandell and Pollock have been — well, it appears to me they will be State’s witnesses already. For that reason, we believe we need the assistance of a psychol- ogist and psychiatrist independent of either of those people to review the medical records, which consists of boxes of stuff, Judge, and advise us on what — you know, what their findings might be. We would like to have somebody totally independent and impartial. J.A. 202.4 The third mental health expert was necessary, said trial 4 Of course, the mere fact that an expert might be called by the State as a fact witness does not render him or her partial or "beholden to the prosecution" as that term is used in Ake. 470 U.S. at 85; see J.A. 206 (prosecutor mentioning that State would possibly call both doctors as they observed events surrounding the offense). A mental health expert is  PAGE v. LEE 11 counsel, to "advise [petitioner] on what . . . their findings might be" after "a review of the medical records." Petitioner’s counsel did not take any exception to the prosecutor’s statement that petitioner had available the services of two mental health experts. Later in the hearing, and tellingly, the following exchange occurred: THE COURT: I’m trying — in other words, it’s one thing if you have no psychiatric witness or no psychological witness and want one, but I get the distinct impression here that you know of at least one psy- chiatrist and one psychologist who — that the defendant intends to call or that paragraph five wouldn’t be in this motion. MR. EUBANKS: That’s — all that’s true. THE COURT: And, in essence, what you’re asking me to do is appoint another one. MR. EUBANKS: Yes. J.A. 204 (emphasis added). At this point, again, it would appear to a reasonable mind that the defendant was requesting a third expert who would perform no tasks beyond those that were to be performed by petitioner’s first two mental health experts. At the conclusion of petitioner’s presentation, the trial court specif- ically asked both parties if either had anything to add (thus giving expected, amongst other tasks, to present testimony, to advise the defen- dant’s attorney as to the viability of the insanity defense, and to assist in preparation of cross-examination of State experts. See Ake, 470 U.S. at 82. None of these functions are inhibited if the expert in question also happens to have observed some fact relevant to the case, independent of his or her expert status. 12 PAGE v. LEE petitioner yet another opportunity to present new arguments or to object to anything the prosecutor or the court had said), to which peti- tioner’s counsel stated "No, sir." J.A. 206. Given this total of informa- tion, the trial court concluded: Based upon the information brought out in argument and the official records in this case, the Court finds the follow- ing facts: Number one, the defendant has available to him at this time a psychiatric witness, to wit . . . Dr. Jason Crandell, who was privately retained by the defendant and who has been treating the defendant over an extended period of time long before the present charges arose. No psychiatric wit- ness — no other psychiatric witness is in a better position to evaluate the defendant than his own psychiatrist who has been examining him and treating him over an extended period of time prior to this moment. Next number, the defendant in a similar manner has had the services of . . . Dr. Dan Pollock, a psychologist . . . who has been privately retained by the defendant and has been . . . evaluating the defendant over an extended period, approaching nine years, prior to this moment. There is no psychologist in a better position to have evaluated the defen- dant than is Dr. Pollock, who is readily available. ... The next number, it is apparent from the defendant’s own documents that he has available at this very moment a psy- chiatric witness and a psychological witness who have treated the defendant over a long period of time and are familiar with his mental and physical condition. Next number, the defendant has failed to demonstrate to the Court’s satisfaction the need for yet another psychiatric witness or another psychological witness when it is apparent to the Court that he has readily available to him at this time  PAGE v. LEE 13 both a psychiatrist and a psychologist who have treated him over a long period of time and are familiar with his mental state for some period of time prior to the fatal encounter and prior to the trial of this action. J.A. 207-08. At no point did petitioner object to any part of the court’s findings, nor did he at any point present information contrary to this finding and conclusion by the trial court. To summarize, then, the trial court had before it a motion for the appointment of a mental health expert, when petitioner already had the actual and current assistance of two mental health experts, and the only reason given by petitioner for why those two experts would be insufficient was that the State would perhaps call them as fact wit- nesses. Petitioner did not contend (and does not now) that Ake requires the appointment of a mental health expert by the State regardless of whether the defendant has mental health experts, undoubtably because Ake cannot possibly be read to require such. Ake does not require the "appointment" of a mental health expert; it requires only that the State "assure the defendant access to a competent [mental health expert]" who will assist the defense. And this, only where the defendant does not otherwise have a mental health expert who can assist him. Additionally, despite numerous opportunities to do so, petitioner did not suggest in any way to the trial court that the two experts would be unable to assist him in his defense, nor did he argue that Drs. Pollock and Crandell should be, or needed to be, paid by the State. Petitioner also did not suggest that the purpose for the requested appointment was to provide any assistance that would not be provided by Drs. Pollock and Crandell, and specifically, neither did he contend that he needed a forensic mental health expert in particular.5 5 Until this very appeal, in fact, petitioner has pointed to no evidence in the record that Drs. Pollock and Crandell did not act as the defense experts that North Carolina contemplates they should, as required under Ake. Even the simplest form of evidence, such as an affidavit on this point from either expert, from trial counsel, or from petitioner himself is absent from the record. 14 PAGE v. LEE As it was entirely reasonable for the trial court, after "having heard petitioner’s explanation," to conclude that petitioner would not "likely be denied an adequate opportunity fairly to confront the State’s case and to present his defense," Moore v. Kemp, 809 F.2d at 712, were the requested motion to be denied, the North Carolina Supreme Court’s holding that the trial court did not err in its denial of petition- er’s motion for appointment of a third mental health expert neither constitutes an unreasonable application of Ake nor is contrary to that decision, the relief sought by petitioner is barred under 28 U.S.C. § 2254(d).6 CONCLUSION Petitioner’s request for a certificate of appealability on his Ake claim is granted, and his request for a certificate of appealability on his Simmons claim is denied. The judgment of the district court as to petitioner’s Ake claim is affirmed, and the appeal from the district court’s denial of petitioner’s Simmons claim is dismissed. AFFIRMED IN PART, DISMISSED IN PART GREGORY, Circuit Judge, concurring in the judgment: I concur with the majority’s conclusion that petitioner has failed to demonstrate that the state court’s rulings were "contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1) (West 2003); Williams v. Taylor, 529 U.S. 362, 402-03 (2000). I write separately to emphasize the requirements of Ake v. Oklahoma, 470 U.S. 68, 82 (1985). 6 Given this conclusion, we do not need to address whether, even if the burden of 28 U.S.C. § 2254(d) could be overcome, petitioner has shown that any constitutional error that did occur had a "substantial and injuri- ous effect or influence in determining the jury’s verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); see Tuggle v. Netherland, 79 F.3d 1386, 1392-93 (4th Cir. 1996) (applying Brecht harmless error stan- dard to Ake errors).  PAGE v. LEE 15 Under Ake, "the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83. The Supreme Court emphasized that assisting in the preparation of a defense includes, but is not lim- ited to: 1) examining the defendant; 2) testifying on his behalf; 3) helping determine the viability of an insanity defense; and 4) assisting in the preparation of the cross-examination of the State’s psychiatric witness. Ake, 470 U.S. at 82. Because the State must "assure" a defendant has access to a mental health expert, we must consider all relevant factors to determine whether such access has been assured. The mere presence of one or multiple mental health experts does not satisfy Ake. See, e.g., United States v. Crews, 781 F.2d 826 (10th Cir. 1986) (finding that a defen- dant was entitled to the appointment of a psychiatrist, despite the fact that he was examined by four treating or court-appointed psychia- trists, all of whom testified to his mental condition). Regardless of whether a defendant has access to one or multiple mental health experts, when those experts cannot individually or collectively fulfill, at a minimum, the duties contemplated by Ake, it is the State’s responsibility to provide the defendant with a mental health expert who can provide the requisite assistance. Here, petitioner alleges that he did not receive the assistance of a mental health expert as required by Ake, but fails to show how his existing mental health experts were unable to satisfy Ake’s requirements. Because there is no evidence in the record demonstrating that petitioner’s mental health experts could not provide the requisite assistance, I concur in the majority’s deci- sion. 

510 U.S. 1122 Galtieriv.United States. No. 93-6912. Supreme Court of United States. February 22, 1994. 1 Appeal from the C. A. 2d Cir. 2 Certiorari denied. Reported below: 999 F. 2d 537.

Filed 9/11/15 P. v. Inman CA4/1 NOT TO BE PUBLISHED IN 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. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D066916 Plaintiff and Respondent, v. (Super. Ct. No. SCN320624) MICHAEL WAYNE INMAN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed in part and reversed in part with directions. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott Taylor and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent. After a bench trial, the court found defendant and appellant Michael Wayne Inman guilty of: unlawfully annoying and molesting a child under 18 years of age, with a prior felony conviction (Pen. Code,1 § 647.6, subds. (a)(1) & (c)(2); count 1); and indecent exposure, with two prior convictions (§ 314, subd. (1); count 2). The court also found true defendant had previously been convicted of three prior strike offenses (§§ 667, subds. (b)-(i), 1170.12 & 668), two serious felonies (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)) and eight prison prior offenses (§§ 667.5, subd. (b) & 668). The court exercised its discretion under People v. Romero (1996) 13 Cal.4th 497 and dismissed two of defendant's strike priors based on remoteness. The court sentenced defendant on count 1 to six years, doubled to 12 based on the third strike prior; the upper term of three years doubled to six on count 2, which the court stayed pursuant to subdivision (a) of section 654; and, as relevant here, to consecutive eight years for each of defendant's eight prison priors, for a total term of 20 years. On appeal, defendant claims the evidence was insufficient to prove his third prison prior based on a 1986 Utah conviction for burglary following defendant's guilty plea.2 (§ 667.5, subd. (b).) The People agree. The parties, however, disagree on whether the matter should be remanded to allow the prosecutor the opportunity to retry the 1986 Utah conviction as a prison prior, as the People contend, or whether this prior should be stricken and defendant's sentence reduced accordingly, as he contends. 1 All statutory references are to the Penal Code unless otherwise noted. 2 In a petition for writ of habeas corpus (D066929), defendant raises various other claims including ineffective assistance of counsel in advising him to waive a jury trial, the erroneous admission of evidence of prior similar bad acts and whether his sentence constitutes cruel and unusual punishment. In a separate order filed concurrently with this opinion, we deny the petition. 2  As we explain, we conclude that there is insufficient evidence in the record to support defendant's 1986 Utah prison prior; that this prison prior should be struck; and that defendant's sentence should be reduced accordingly. OVERVIEW In the afternoon of May 17, 2013, then 16-year-old victim Natalia P. was riding a transit bus after school to her grandmother's house in the North County of San Diego. Natalia initially boarded the bus with school friends, and they sat in the back of the bus. After her friends got off the bus, a man later identified as defendant moved from the front of the bus to the back and sat directly in front of Natalia. Carmen P. was sitting across the aisle when the man sat down near Natalia. Carmen saw the man spread his legs apart and noticed near his groin a hole in his pants about the size of a baseball. Carmen saw the man's penis, noticed the man made no attempts to cover himself and instead "blatantly" exposed himself to her. Carmen at the same time heard the man asking Natalia many personal and inappropriate questions, including how old she was, where she lived and when was she getting off the bus. As the man continued to ask Natalia questions, Carmen observed Natalia looked "real scared." As the man's persistent questioning of Natalia continued, Carmen saw the man face the girl, expose himself and begin touching and massaging his penis. While he touched his penis, the man told Natalia she was a "good girl." Carmen felt disgusted by the man. Natalia testified she initially was polite to the man when he first sat down by her but then tried to ignore him as he continued to ask her personal and inappropriate questions. She estimated the man spoke to her for about 10 or 15 minutes. At some point 3 when the man repeatedly asked Natalia why she would not talk or pay attention to him, Natalia looked over at him and saw him "masturbating." Specifically, Natalia stated that the man was facing her; that his penis was erect and was visible through a hole in the middle of his pants; and that he was using his hand to rub his penis. According to Natalia, the man looked her in the eye and just smiled. Natalia estimated the man was "less than arm length" away from where she was sitting as he was masturbating. Scared and worried the man might sexually assault her, Natalia cried. Natalia testified another bus passenger, whom she later learned was Carmen, began yelling at the man. Until this incident, Natalia and Carmen had never met. The man in response got off the bus at the next stop. Natalia went to Carmen and sobbed. The two reported the incident to the bus driver, and the police were called. A few days later, Carmen and Natalia separately identified defendant in a photographic lineup as the man exposing himself on the bus. The police also obtained and reviewed a copy of the surveillance video from the bus, which was consistent with the reports and statements made by Natalia, Carmen and others. At the time of the incident, defendant was on parole as a result of prior sex offense convictions and was required to wear a GPS monitoring device. Records subsequently obtained by the police in connection with that device showed defendant was in fact on the same bus as the victim at the time of the incident. 4  DISCUSSION As noted, defendant contends—and the People concede—that the evidence was insufficient to prove that his 1986 Utah burglary conviction qualified as a prison prior for purposes of the one-year enhancement under section 667.5, subdivision (b). Subdivision (f) of section 667.5 provides: "A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which, if committed in California, is punishable by imprisonment in the state prison or in county jail under subdivision (h) of Section 1170 if the defendant served one year or more in prison for the offense in the other jurisdiction. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction." (Italics added.) Here, the record shows the prosecutor submitted certified documents establishing defendant pleaded guilty in March 1986 in the Third Judicial District Court, Salt Lake County, State of Utah, to burglary, "a felony, of the 3rd degree" and to "theft," a "class B misdemeanor." The certified documents also included photographs and the fingerprints of defendant. The fingerprint card states defendant was sentenced to five years six months on both counts. The probation report in the instant case states that, in connection with the 1986 Utah conviction, defendant "was arrested for stealing an employee's wallet out of the back storeroom of the Coach House Gift Store (Adult Probation Officer's report dated 06/15/05)." As relevant here, in 1986 (and today) the Utah burglary statute provided: "An actor is guilty of burglary who enters or remains unlawfully in a building or any portion 5 of a building with intent to commit: [¶] . . . [¶] (b) theft; . . ." (Utah Code, § 76-6-202, subd. (1)(b), italics added.) In contrast, section 459 (of the California Penal Code) defines burglary as follows: "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." There is a primary difference between the elements of burglary in Utah and in California: unlike California law which requires a felonious intent at the time of entry (People v. Holt (1997) 15 Cal.4th 619, 669), Utah law allows a defendant to be convicted of burglary even if the defendant did not enter with such intent, as long as a defendant "remains unlawfully" after such entry. (State v. Reece (Utah 2015) 349 P.3d 712, 721 [citing Utah Code § 76-6-202 and noting "a person can commit burglary without stealing anything—a person who commits any felony while remaining unlawfully inside a building is also guilty of burglary"]; see People v. Sparks (2002) 28 Cal.4th 71, 85, fn. 17 [noting the burglary statutes "in some jurisdictions . . . include in their definition of burglary the situation where one enters or remains with the requisite intent" and further noting § 459, "by contrast, requires an entry with requisite intent"].) Thus, a person could be convicted of burglary in Utah for remaining unlawfully inside a building and committing theft, for example, while that same crime would not constitute a burglary in California. As such, the 1986 Utah conviction of defendant may not have included "all of the elements" (§ 667.5, subd. (f)) of burglary as defined in section 459. 6  Because the People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt (People v. Miles (2008) 43 Cal.4th 1074, 1082) and because there is no factual basis in the record establishing defendant entered the building with the intent to commit theft in connection with his 1986 Utah conviction, we agree with the parties and conclude the true finding on this conviction must be reversed. Defendant contends the 1986 prison prior should be stricken and his sentence reduced by one year because, "given the distinctions between Utah's and California's burglary statutes, there is no method by which respondent will be able to present evidence that the Utah burglary qualified as a California prison prior." To support this contention, defendant primarily relies on Descamps v. United States (2013) 570 U.S. ___ [133 S.Ct. 2276] (Descamps).3 There, the Supreme Court addressed the issue of whether sentencing courts may examine certain documents to determine whether a prior conviction for a crime with a single, indivisible set of elements qualifies as a "violent felony" under the enumerated- offenses clause of the Armed Career Criminal Act (ACCA) (18 U.S.C. § 924(e)). (Descamps, supra, ___ U.S. at p. ___ [133 S.Ct. at p. 2281].) The ACCA increases the sentences of certain federal defendants who have three prior convictions of such a felony, which includes "burglary, arson or extortion." (18 U.S.C. § 924(e).) 3 The Attorney General in its respondent's brief neither mentioned Descamps nor addressed defendant's contention that his 1986 Utah prison prior must be stricken. We thus requested the Attorney General to brief this issue and allowed defendant to respond. We have read and considered the supplemental briefs of the parties in connection with this issue. 7  The Descamps Court concluded that, in determining whether a prior conviction of the defendant (which by happenstance was based on § 459) qualified as a "serious felony" under the ACCA, the sentencing court could not refer to a plea colloquy to discover whether the defendant admitted the elements of generic burglary, which required the entry to be unlawful (i.e., breaking and entering), when section 459 had no such requirement and thus was categorically broader than "generic" burglary. (Descamps, supra, ___ U.S. at p. ___ [133 S.Ct. at pp. 2285-2286].) We need not decide whether Descamps applies here; although Descamps concluded a court could consult a limited class of documents such as jury instructions to determine whether a conviction under a "divisible statute" (i.e., a statute that "sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile") matches an element in the generic offense (albeit for purposes of the ACCA) (Descamps, supra, ___ U.S. at p. ___ [133 S.Ct. at p. 2281]), we note from the record in this case there are no such documents that would allow such a limited inquiry, even if we determined the Utah statute at issue here was in fact "divisible" as the People contend. Because defendant pleaded guilty in the Utah offense without specifying whether he formed the requisite intent to commit burglary before (i.e., as required in California) or after (i.e., as allowed in Utah) he entered the building, and because as noted the record in the instant case is devoid of the limited class of documents that would allow such an inquiry and the likelihood of the existence of such documents dating back 30 years is so slim given his guilty plea, we conclude defendant's 1986 Utah prison prior should be stricken and his sentence reduced accordingly. 8  DISPOSITION The true finding on the 1986 Utah prison prior is reversed. The trial court is directed to strike the 1986 Utah prison prior and reduce defendant's sentence accordingly. The trial court is further directed to prepare a new abstract of judgment reflecting these changes and to forward a certified copy of the new abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment of conviction is affirmed. BENKE, Acting P. J. WE CONCUR: NARES, J. IRION, J. 9 

31 Cal.App.2d 166 (1939) In the Matter of the Application of Abbott v. Bernay, in Behalf of GENEVA WRIGHT, for a Writ of Habeas Corpus. Crim. No. 3190. California Court of Appeals. Second Appellate District, Division One. February 21, 1939. B. Warren Vinetz for Petitioner. Earl Warren, Attorney-General, and Paul D. McCormick, Deputy Attorney-General, for Respondent. The Court. This is a petition for a writ of habeas corpus to procure the release of Geneva Wright, who is confined in the state hospital at Camarillo, California, as an inebriate, pursuant to a commitment issued out of the Superior Court of the State of California, in and for the Country of Riverside. At the hearing upon the writ it was shown that upon the 17th day of November, 1938, an affidavit of intemperance was filed in the aforesaid superior court, pursuant to which a warrant of apprehension was issued and served upon said Geneva Wright, who was brought before said court on November 22, 1938. A transcript of the proceedings had before the superior court was introduced into evidence, indicating that the following proceedings were had: "The Court: An affidavit has also been filed in the Superior Court of Riverside County, on the part of A. L. Wright, your father, alleging you to be a person addicted to the intemperate use of stimulants. The affidavit alleges that for the last ninety days Geneva Wright has been using alcoholic stimulants to excess, and when under the influence of same, abuses nurses and affiant verbally, and has hallucinations and delusions of persecution. Do you desire to testify in your own behalf?" "Geneva Wright: Why, I would like to have an attorney on that, and a jury trial." "The Court: In regard to an affidavit for excessive use of stimulants, there is no attorney, and there is no jury trial provided." "Geneva Wright: I thought probably that was the way it was." "The Court: I will ask that the witnesses be sworn. Probably the doctors better be sworn again. ..." Whereupon the court proceeded to take testimony, following which the commitment to the state hospital at Camarillo was issued, pursuant to which Geneva Wright was delivered into the custody of the proper authorities of said hospital, where she is now held and confined. *168 Section 5402 of the Welfare and Institutions Code provides in substance that any person brought before the court as an inebriate shall be informed of the charge against him or her, and also informed of his or her rights to make a defense to such charge and to produce witnesses in relation thereto. It is further required that the judge shall by order fix such time and place for the hearing and examination in open court as will give a reasonable opportunity for the production and examination of witnesses. [1] In the instant case, it is at once apparent from the transcript of the proceedings had, which indicate a forthwith hearing before the court at the time the alleged inebriate was brought before it, that the provisions of the aforesaid section were not complied with, either with reference to giving her information with respect to her rights to make a defense to such charge and to produce witnesses in relation thereto, or to giving her what the code section denominates "a reasonable opportunity" for the production and examination of witnesses. Having been denied her legal rights pursuant to the code provision, it is ordered that the said Geneva Wright be discharged from the custody of the state hospital at Camarillo.

Order entered October 29, 2014 In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00671-CR WILLIAM GERARD PALMER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F12-00445-K ORDER The Court ORDERS the trial court to make findings of fact regarding whether appellant has been deprived of the reporter’s record because of ineffective counsel, indigence, or for any other reason.  The trial court shall first determine whether appellant desires to prosecute the appeal. If the trial court determines that appellant does not desire to prosecute the appeal, it shall make a finding to that effect.  If the trial court determines that appellant desires to prosecute the appeal, it shall next determine whether appellant is indigent and entitled to proceed without payment of costs for the reporter’s record. If appellant is entitled to proceed without payment of costs, the trial court shall make a finding to that effect. Moreover, if appellant is indigent, the trial court is ORDERED to take such measures as may be necessary to assure effective representation, which may include appointment of new counsel. If the trial court finds appellant is not indigent, it shall determine whether retained counsel has abandoned the appeal.   The trial court shall next determine: (1) the name and address of each court reporter who recorded the proceedings in this cause; (2) the court reporter’s explanation for the delay in filing the reporter’s record; and (3) the earliest date by which the reporter’s record can be filed. We ORDER the trial court to transmit a record, containing the written findings of fact, any supporting documentation, and any orders, to this Court within THIRTY DAYS of the date of this order. The appeal is ABATED to allow the trial court to comply with this order. The appeal shall be reinstated thirty days from the date of this order or when the findings are received, whichever is earlier. /s/ LANA MYERS JUSTICE 

Berrios-Lemus v Village of Spring Val. (2014 NY Slip Op 07607) Berrios-Lemus v Village of Spring Val. 2014 NY Slip Op 07607 Decided on November 12, 2014 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 November 12, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS SANDRA L. SGROI HECTOR D. LASALLE, JJ. 2014-03834 (Index No. 31648/13) [*1]Arturo Berrios-Lemus, respondent, vVillage of Spring Valley, et al., appellants. O'Connor McGuinness Conte Doyle Oleson Watson & Loftus, LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Kathleen D. Foley], of counsel), for appellants. Greenstein & Milbauer, LLP, New York, N.Y. (Andrew W. Bokar of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an interlocutory judgment of the Supreme Court, Rockland County (Loehr, J.), entered March 4, 2014, which, upon an order of the same court dated February 27, 2014, granting the plaintiff's motion for summary judgment on the issue of liability, is in favor of the plaintiff and against them on the issue of liability. ORDERED that the interlocutory judgment is affirmed, with costs. The plaintiff allegedly was injured when he was struck by a police vehicle owned by the defendant Village of Spring Valley and operated by the defendant Lech Rosenbaum while he was walking in a cross walk in the Village of Spring Valley. As a result of this incident, the plaintiff commenced an action against the defendants to recover damages for personal injuries. After issue was joined, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court granted the motion, and thereafter, entered an interlocutory judgment in favor of the plaintiff and against the defendants on the issue of liability. The evidence submitted by the plaintiff established, prima facie, his entitlement to judgment as a matter of law on the issue of liability, and that he was free from comparative fault (see Thoma v Ronai, 82 NY2d 736, 737; Ramos v Bartis, 112 AD3d 804; Buchinger v Jazz Leasing Corp., 95 AD3d 1053, 1053). The plaintiff demonstrated that before crossing he waited for the traffic signal to be in his favor, and that prior to entering the crosswalk he exercised due care by looking in both directions of the roadway (see Buchinger v Jazz Leasing Corp., 95 AD3d at 1053; Martinez v Kreychmar, 84 AD3d 1037, 1038). While crossing, he observed the police vehicle operated by Rosenbaum approach the intersection and slow down. Believing that it was going to stop, as the red light was against it, he continued to cross. He was struck by the vehicle before he could finish crossing. In opposition to the plaintiff's prima facie showing, the defendants failed to raise a triable issue of fact. Furthermore, contrary to the defendants' contentions, the motion was not premature. The defendants failed to demonstrate "that additional discovery may lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff" (Buchinger v Jazz Leasing Corp., 95 AD3d at 1053; see Arazashvilli v Executive Fleet Mgt., Corp., 90 AD3d 682). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered' by further discovery is an insufficient basis for denying the motion" (Woodward v Thomas, 77 AD3d 738, 740, quoting Lopez v WS Distrib., Inc., 34 AD3d 759, 760; see Arazashvilli v Executive Fleet Mgt., Corp., 90 AD3d at 683; Martinez v Kreychmar, 84 AD3d at 1038). Accordingly, the Supreme Court properly entered an interlocutory judgment in favor of the plaintiff and against the defendants, upon the order granting the plaintiff's motion for summary judgment on the issue of liability. MASTRO, J.P., CHAMBERS, SGROI and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

United States Court of Appeals For the First Circuit No. 09-1629 JASON CLEMENTS, Petitioner, Appellee, v. HAROLD W. CLARKE, Respondent, Appellant. ERRATA SHEET The opinion of the court issued on January 20, 2010, is amended as follows: On the cover sheet replace "Randal B. Ravitz" with "Randal E. Ravitz" On page 18, line 2, replace "appellant" with "appellee' 

34 Cal.App.4th 1499 (1995) 40 Cal. Rptr.2d 822 THE PEOPLE, Plaintiff and Respondent, v. BONSET SOUN, Defendant and Appellant. Docket No. H010766. Court of Appeals of California, Sixth District. May 12, 1995. *1505 COUNSEL Michael A. Kresser, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias, David D. Salmon, Richard Rochman and Linda Murphy, Deputy Attorneys General, for Plaintiff and Respondent. [Opinion certified for partial publication.[*]] OPINION BAMATTRE-MANOUKIAN, J. On Saturday, July 7, 1990, a shopkeeper named Chan Khun was shot and killed in his San Jose video store. Within 36 hours Bonset Soun had been identified as the gunman, had given a detailed confession, and had directed police to the rifle he had used. Soun was found guilty of first degree murder in the attempted commission of robbery (Pen. Code, §§ 187, 190.2, subd. (a)(17)(i)) and two other felonies, and was sentenced to life in prison without possibility of parole. On appeal Soun does not question the sufficiency of the evidence admitted at trial to prove that he killed Khun. He argues: (1) That the trial court improperly denied his motion to suppress much of the evidence against him on the ground that the procedures by which he was detained or arrested were illegal and that the evidence had been the fruit of the illegality; (2) That the trial court erroneously excluded proffered evidence that his motive to kill Khun had been something other than robbery; (3) That his self-incriminatory statement to a juvenile hall counselor should have been excluded on the ground it had been elicited in violation of his Fifth and Sixth Amendment rights; and *1506 (4) That the trial court erroneously refused to conduct a second hearing as to whether Soun was under the age of 18 years when he killed Khun. We have concluded that none of Soun's assertions warrants reversal and that the judgment of conviction should be affirmed. We shall publish only our discussion of Soun's first assertion. The basic facts are essentially undisputed. Soun (a young Cambodian) and five other Asian youths drove from Oakland to San Jose, on Saturday morning, in response to an acquaintance's request that they rob a gambling establishment for him. Their vehicle was a blue 1981 Toyota two-door sedan owned by one of Soun's confederates. Soun owned a rifle, and took it with him in the Toyota. Once in San Jose, the six learned that the gambling establishment would not be a feasible robbery target and shifted their attention to Khun's video shop. They parked near the video shop and "cased" it, by entering the shop and asking Khun (also a Cambodian) if he had videotapes of a specified kind while looking for such details as whether the shop had surveillance cameras. A short time later, about 3:30 Saturday afternoon, Soun and three of his confederates reentered the store while the other two remained outside to serve as lookout and driver. Soun had loaded his rifle and took it with him into the shop; he later explained to police that he needed to be ready to shoot the shopkeeper should the shopkeeper have a gun of his own. Khun did not have a gun. The four youths demanded Khun's jewelry and money; when Khun professed reluctance and perhaps skepticism, Soun shot Khun three times in the chest. The four then ran from the shop, apparently without taking anything, and the six left the area in the blue Toyota. Soun initially rode in the trunk of the Toyota; on the freeway en route back to Oakland the driver stopped and Soun moved to the passenger compartment. By shortly before noon Sunday, July 8, 1990, Oakland police had found the blue Toyota, parked on an Oakland street, and were watching it. Within a few minutes Soun and his five confederates entered the car and began to drive away. They were stopped by Oakland police; San Jose police conducted interrogations, obtained detailed confessions from Soun and several of his confederates, collected additional evidence including the murder weapon, and filed charges against all six. Several days later, while Soun was being held in juvenile hall, he told a counselor that "he was here for killing somebody, and that he had done it for a friend who needed money for a car...." *1507 The juvenile court subsequently determined that Soun had been an adult at the time he killed Khun. Three of Soun's five confederates were minors, who ultimately admitted the truth of Welfare and Institutions Code section 602 petitions filed against them in juvenile court; the other two pled guilty in adult criminal proceedings. Only Soun went to trial. The prosecutor elected not to seek the death penalty. A jury found Soun guilty of conspiracy to commit robbery, attempted robbery, and first degree murder in the commission of attempted robbery, with enhancements for personal use of a firearm. Soun appeals from the ensuing judgment of conviction. The Apprehension Soun argues that in seizing his person, transporting him to police headquarters, and holding him there for several hours the police violated the Fourth Amendment, that the violation tainted significant prosecution evidence assertedly attributable thereto, and that under the case law all such evidence should have been suppressed. Soun first moved to suppress the evidence, under Penal Code section 1538.5, during the preliminary examination. The magistrate denied Soun's motion. Soun renewed his motion in the trial court, which denied Soun's motion to present evidence in addition to the preliminary examination transcript. (Cf. Pen. Code, § 1538.5, subd. (i).) The renewed suppression motion was submitted on the transcript alone, and the trial court denied the motion. (1) In this court we review the magistrate's explicit or implicit factual findings directly, to determine whether the findings were supported by substantial evidence (People v. Ramsey (1988) 203 Cal. App.3d 671, 679 [250 Cal. Rptr. 309]; cf. People v. Bishop (1993) 14 Cal. App.4th 203, 214 [17 Cal. Rptr.2d 657]); we then exercise our independent judgment to determine whether, on the facts found, the seizure of Soun's person was unreasonable within the meaning of the Constitution. (People v. Leyba (1981) 29 Cal.3d 591, 597 [174 Cal. Rptr. 867, 629 P.2d 961]; cf. People v. Ramsey, supra, 203 Cal. App.3d at p. 679.) So far as relevant to Soun's Fourth Amendment argument, the preliminary examination transcript reflects the following evidence. Khun's video store faced Fair Avenue near its intersection with McLaughlin Avenue. A witness named Hailu was working at a liquor store, on McLaughlin around the corner from the video store, on Saturday afternoon. At some time after 3 p.m. Hailu noticed a two-door blue "Japanese" car, with five to six *1508 male people associated with it, parked in an unusual way in the liquor store's parking area: the car was backed against the fence between the liquor store and the video store. When Hailu saw the car its trunk was open and all of the five or six people were standing around the trunk. Hailu was "80 percent sure they were Cambodians; 100 percent sure they were Asians." Hailu was concerned that they might have stolen property, or in any event that "something wrong was going on." As Hailu looked out, they closed the trunk. He yelled to them to "leave the parking lot," and they got into the car and drove off to the left, toward Fair. Later in the day Hailu was interviewed by the police detectives assigned to the homicide investigation, Sergeants Robinson and Escobar; Hailu acknowledged that he may have told them he saw only three or four males get out of the car. A witness named Alcontar was driving his car on Fair, and had stopped at McLaughlin, at 3:30 p.m. on Saturday. Alcontar heard what he characterized as "two gunshots," or possibly three, from his right. He looked to his right and saw "five kids," whom he described as Asian and probably Vietnamese males between twelve and eighteen years of age, running from the area of the video store toward a car parked near Fair. Alcontar believed he saw the "kids" carrying two weapons, one of which he described a "short and square" automatic weapon and the other as a rifle. He also testified he saw "one for sure," and that it was the rifle, carried by what appeared to be the oldest and second-tallest of the "kids." Alcontar testified that the car's doors and trunk were open, and that he saw another person standing near the car. The "kids" got into the car which drove off away from Alcontar, and from McLaughlin, along Fair. Alcontar made his intended left turn on McLaughlin and continued toward his destination; the car he had seen apparently went around one or more blocks and pulled in ahead of Alcontar on McLaughlin. The two cars proceeded together to Story Road and then along Story Road to the point at which it intersects Highway 101. Along the way Alcontar seized a piece of paper and a pencil and wrote down the car's license number: he was confident of the first part of the number but not of the order of the last three digits. The number he wrote down was 1RCS525; it was the 525 of which he was unsure. Alcontar told the police that the car was maroonish or reddish in color. He testified at preliminary examination that the car was dirty and that it was "a short, a little, small foreign car" which "could have been an either Toyota or something small and square." He acknowledged he told the police it was a two-door car. The car, with what appeared to Alcontar to be five occupants, turned on the ramp to northbound Highway 101, which intersects Highway 880, the principal route from that area to Oakland, a short distance farther north. Alcontar continued on Story Road. Alcontar was interviewed by Sergeants Robinson and Escobar later that day, gave them the number he had written down, and told them the last three *1509 digits could have been "583 or something like that." Alcontar also told them that one or two of the "kids" had worn baseball caps "on backwards" and that one of the caps was "red ..., possibly a 49er type." A witness named Kim was at work at a market on Fair, next door to the video store, on Saturday afternoon. About 3:30 p.m. he heard "two loud noises." He looked outside and saw "three to four, four to five" Asian males running from the area of the video store toward the corner of the parking area. The Asians appeared to be 18 to 20 years old, and one of them was carrying a gun. When he saw the gun, Kim ran to the video store, where he saw the owner lying on his back behind the counter, shot in the chest. Kim went back to his store and called 911; he was told the police had already been called, and in fact they arrived while he was on the telephone. A witness named Durgin was at the Alano Club, on Fair beyond the market from the video store, on Saturday afternoon. He heard what he described as "four hammers or four pounds with a hammer," which were "very hard sounds." Initially he "had no idea it was gunfire." He went to a window and saw four men taking a diagonal path across a parking lot from the area of the video store and market toward an opening between two fences, one of which separated the Alano Club from the market and the other of which paralleled Fair. It was Durgin's impression that the men were not running but "kind of walking with a purpose or direction or a goal." Durgin could see a car beyond the fence which paralleled Fair and backed up to it; he believed the car was blue. The men "looked like Mexican, but they were Oriental. [¶] ... [¶] [T]heir skin color wasn't what I expected from Oriental and their eyes weren't what I expected from Mexicans." According to Durgin, the tallest of the men — he appeared to Durgin to be "real" or "inordinately" tall — was carrying "what looked like a pump-action type weapon of some kind." The same man was wearing "a black or navy blue type baseball cap, kind of reminded me of the Oakland Raider's cap." The other three men were shorter, including "a real tiny, tiny guy in the back." It was Durgin's impression that the men put something in the car trunk before they drove away. He did not get a license plate number. Durgin reported his observations to the police within a few minutes after he made them. At preliminary examination he acknowledged that he may have told the officers he believed the car was a Volvo "or that type of car, little runny cars, ... little dinky cars." "[J]ust a boxy type of car...." A San Jose police officer named Helder was the first officer to reach the scene; he heard the call at 3:42 p.m. As he arrived at the video store he noticed two individuals standing outside, one of whom handed Helder a piece of cardboard on which was written a partial license number 1RC_538 *1510 and the words "blue car, four people, young." By approximately 3:50 p.m. Helder had broadcast this information, together with his observations that there appeared to have been a robbery and that the victim was dead. A witness named Crown testified that about 3:50 p.m. on Saturday he had been on the exit ramp from northbound Highway 101 to northbound 880, the route to Oakland from that area, when he saw a blue Toyota Cressida or Camry parked on the side of the ramp. "[I]t was a four-door, and the back door was open. [¶] And there was an individual with a large, what I believed to be a semi-automatic rifle in his hands running around toward the rear of the car on the passenger side." Crown saw at least two other people in the car. All of the people he saw were male Asians. Crown was unable to get a license plate number. He reported what he had seen to the highway patrol; San Jose police contacted him shortly thereafter and he discussed the case with them, telling them among other things that the individual with the gun had been about 5 feet 10 inches tall and in his 20's or younger. At San Jose police headquarters an officer named Kranich was on duty on Saturday; one of his duties was to monitor the computer system. As the information we have summarized was received, it was forwarded to Kranich's computer terminal. Kranich noticed the physical descriptions and the variations in license plate numbers reported by witnesses. Moving to a computer terminal with access to the Department of Motor Vehicles database of vehicle license plate numbers, Kranich ran the numbers as reported. Having received no match consistent with the described vehicle, Kranich "decided to begin trying some combinations, variations on the plate number reported by the witnesses to see if I could find a better match." He began to enter variations of the three reported license plate numbers of which he was then aware: 1RC_538, 1RCS585, and 1RCS525. He perceived that there was no conflict among the versions as to the letters RCS; he concentrated on the last three numeric characters. Concluding that 5's and 8's predominated, and attempting to allow for the impact of a "human emotion factor" on "visual perception," Kranich decided to try various combinations of numeric characters 5 and 8. On about the fifth or sixth combination which the Department of Motor Vehicles (DMV) computer could link to a registered vehicle, Kranich got a 1981 Toyota registered to one Chantha Nhim at an address on Martin Luther King Way in Oakland. Vehicle color is not included in DMV computer records. Kranich knew from his own experience that the area in which Khun had been killed had a large Cambodian and Vietnamese population. The matchups of vehicle type and a surname which was "possibly of that same ethnic group," together with an address in Oakland toward which the vehicle had inferably been headed at last report, led Kranich to consider this "a very likely candidate for further investigation"; none of his other *1511 combinations, including at least one additional combination which he ran after he got his "very likely candidate," had returned a vehicle "that was close to the make and model reported by the witnesses." Kranich acknowledged at preliminary examination that he did not undertake to assure that he had exhausted all possible combinations. The combination that had matched Nhim's vehicle was 1RCS558. San Jose police put this number, with the DMV description and Nhim's name and address, on police computers at 4:40 p.m. Saturday, adding a notation to the effect that the identification was not yet firm. This communication was subsequently referred to as an "all points bulletin" or APB. A police lieutenant named Seaman was the on-call officer in the San Jose police bureau of investigations on Saturday afternoon. He was called at home, went to the scene of the killing, and then went to the police department homicide unit where he arrived about 6 p.m. At that time Seaman received copies of the police computer printouts including the APB. About 6:30 p.m. Seaman called witness Crown and discussed what Crown had seen on the Highway 880 on-ramp. Although Crown believed the car he had seen was a blue Toyota, which corresponded with some other witnesses' descriptions of the car at the murder site, Crown also said that the Toyota was a late model (1989 or 1990), was a Cressida or a Camry, and had four doors. Nevertheless Seaman believed this might have been the car other witnesses had seen at the murder site, and that it might indeed have been headed toward Oakland. From DMV records Seaman was able to determine that Nhim's Toyota was the model known as a Corolla. Seaman then called the Oakland police watch commander, a lieutenant named Williams. Seaman testified at preliminary examination that "I wanted to ask them to help us by going by the address of which the vehicle was registered to see if the vehicle was there so that we could determine whether it is in fact involved. [¶] ... [¶] I told him that our department had an investigation going, that, on a homicide that had just occurred, where several Vietnamese or Asian males had gone into a store and shot a man, and that ... [¶] ... [¶] [t]hey were seen leaving the scene in a blue Toyota, and that another witness had told me it was seen on the on-ramp to northbound Highway 880, with a possible rifle, and I asked him if he would have a patrol unit go by the residence and tell me if the vehicle was there and to contact me if they did find the vehicle...." Seaman's intent was to follow up from San Jose if the vehicle was found. Williams promptly sent officers to the address on Martin Luther King; they did not find the described vehicle. Then Williams wrote the following "Interoffice Letter," dated on Saturday, to other watch commanders: *1512 "Subject: 187 SUSPECTS AND VEHICLE/RE: San Jose P.D. Homicide Case "Information from Lt. Seaman (S.J.P.D.-Homicide): "At 1540 hrs. [Saturday], six male Vietnamese or male Orientals drove to a residence in San Jose, walked into the complaintant's house and shot him six times in the chest with a rifle. It is believed that the rifle used was a semi-automatic. "Shortly after the shooting, a 1981 Toyota, possible license of 1RCS558 (unsure of numbers), headed N/B on 880 freeway from the 101 exchange in San Jose. Possible vehicle is registered to NHIN [sic], Chantha of 1925 MARTIN Luther King Way, Oakland. That address and sur[r]ounding area was checked for suspect vehicle by Third Watch officers with negative results. "Lt. Seaman can be contacted at (408) 277-5283 until 2400 hrs. on [Saturday] and would like to be notified if the vehicle is in Oakland (requests that units take no action)." During Saturday evening San Jose police received a statement from a witness who believed the vehicle had been "maroonish" and was a 1978 or 1979 Datsun 200SX. Between 10 and 11 a.m. Sunday, an Oakland police sergeant named Sargent read Williams's letter to traffic division shift officers, including a motorcycle officer named Chew. Chew took a copy of the letter with him on patrol. At approximately 11:40 a.m. Sunday Chew drove past the Martin Luther King Way address and saw the 1981 Toyota with plate number 1RCS558. The car was blue. Chew reported his discovery to Oakland police dispatch, asked that Sargent make a telephone call to San Jose police, and then took up a position from which he could watch the vehicle. Sargent immediately called San Jose to talk to Seaman; the call was ultimately diverted to Sergeant Robinson who was not contacted until 11:55 a.m. Meanwhile, at approximately 11:50 a.m., Chew saw three or more Vietnamese or Southeast Asian males come from the area of Nhim's address and get into the Toyota. Chew radioed to the dispatcher that "I'm gonna need some units out here, this 187 vehicle is about to roll." The Toyota pulled *1513 away from the curb and traveled along Martin Luther King Way past Chew's position; Chew, who was in police uniform, followed it, and occupants of the Toyota turned to look at him. The Toyota then made several right turns, ultimately returning to and continuing past its point of origin on Martin Luther King Way. Meanwhile several police units had responded to Chew's call. At approximately 11:52 a.m., while Chew was following the Toyota, Sargent asked the dispatcher to tell Chew "on the air to make it a traffic stop, only, if they make a stop." In subsequent testimony Sargent explained that he had in mind the distinction between a car stop for a perceived traffic violation, using lights and siren only and with no more than one backup vehicle, and a full-scale felony car stop with multiple police vehicles, guns drawn, and other procedures calculated to control a potentially dangerous situation. Sargent's concern, as he explained it, was that a full-scale felony stop would create traffic dangers and unnecessarily exacerbate a situation in which he did not yet have an indication of what San Jose wanted done. The dispatcher agreed to forward Sargent's message but it appears that Chew did not receive it (and it is not clear that it was transmitted) before the Toyota was stopped. In any event Chew had decided upon, and by 11:55 a.m. he and his backup officers had executed, a full felony stop: they stopped the Toyota and, with guns drawn, ordered all of the occupants to get out of the car and to lie prone on the street where they were briefly pat-searched and then handcuffed. The stop involved several police officers and vehicles, and essentially closed Martin Luther King Way to other traffic. There were six young Asian males, including Nhim and Soun, in the Toyota. San Jose police dispatch first contacted Sergeant Robinson, at home, at 11:55 a.m., as the Oakland officers were completing the stop of the Toyota. The dispatcher told Sergeant Robinson that "Oakland had a car stopped relating to our homicide" and asked permission to release Sergeant Robinson's home telephone number so that Oakland could call him directly. An Oakland patrol sergeant named Fenton had responded to Chew's radio call for units; he arrived at the scene after the Toyota was stopped. When all six subjects had been handcuffed and placed in individual patrol cars, Fenton directed that the cars be moved to a nearby parking lot to wait for further instructions. Fenton then went to police headquarters, a short distance away, to find out what San Jose wanted done. Between noon and 12:35 p.m., Sergeant Robinson and Fenton spoke twice by telephone. Sergeant Robinson wanted Fenton to describe, and to try to *1514 identify, the subjects. Based on Fenton's descriptions, Sergeant Robinson concluded that Oakland police had in fact found the perpetrators of the San Jose murder. Sergeant Robinson asked Fenton to move the six subjects to Oakland police headquarters, with their consent if possible or by arrest if necessary, to wait for Sergeant Robinson and his partner to arrive from San Jose. At approximately 12:37 p.m. the six subjects were moved to the homicide unit at Oakland police headquarters. At approximately 1 p.m. all of the subjects other than Soun were locked into separate interview rooms, and Soun was placed in a lieutenant's office which could not be locked but in which he was handcuffed to a chair. Sergeant Robinson and his partner arrived in the homicide unit at 3 p.m.; at 3:15 p.m. they secured Nhim's formal consent to a search of the Toyota; after examination of evidence and briefings by Oakland officers they began interrogating the subjects, one by one, at 4:50 p.m. The last interrogation in Oakland was concluded at 2:15 a.m. Monday; Sergeant Robinson and his partner then recovered the murder weapon from the home of one of the subjects. Throughout their stay at the Oakland homicide unit the six subjects were monitored regularly to assure that they were fed, made as comfortable as possible, and allowed to go to the bathroom as necessary. It appears, however, that none of the six subjects was afforded an opportunity to make telephone calls during this period. At 4:30 a.m. Monday all the subjects were moved to San Jose. (2a) Having heard this evidence, the magistrate patently concluded that Soun's Fourth Amendment rights had not been violated. The magistrate appears to have reasoned: (1) That insofar as the apprehension of Soun and his confederates may have amounted to no more than a temporary detention, it was sufficiently supported by evidence of an objectively reasonable suspicion that the subjects had been involved in criminal activity; (2) That if and insofar as the apprehension may have amounted to an arrest, it was sufficiently supported by evidence of probable cause to arrest the subjects; and (3) That the subjects had in any event effectively consented to be transported to Oakland police headquarters and to be held there pending interrogation by the San Jose detectives, and thus (in the magistrate's words) "everything that comes after that is going to be admissible." We agree with the magistrate that the procedures by which Soun and his confederates were taken into custody satisfied the requirements of the Fourth *1515 Amendment. Thus we need reach neither the issue of the subjects' asserted consent nor the question whether the various evidence Soun sought to suppress was attributable to the procedures by which he was taken into custody. (3) Any police restraint of the liberty of an individual either by physical force or by an assertion of authority to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave, will constitute a state "seizure" of the individual within the meaning of the Fourth Amendment. (Cf. California v. Hodari D. (1991) 499 U.S. 621, 625-628 [113 L.Ed.2d 690, 697-698, 111 S.Ct. 1547]; People v. Turner (1994) 8 Cal.4th 137, 180 [32 Cal. Rptr.2d 762, 878 P.2d 521].) Such a seizure is normally characterized as either a "detention" or an "arrest." (In re James D. (1987) 43 Cal.3d 903, 911-912 [239 Cal. Rptr. 663, 741 P.2d 161]; People v. Gentry (1992) 7 Cal. App.4th 1255, 1266 [9 Cal. Rptr.2d 742].) The distinction can be significant, inasmuch as the constitutional standard for a permissible detention "is of lesser degree than that applicable to an arrest" (People v. Harris (1975) 15 Cal.3d 384, 389 [124 Cal. Rptr. 536, 540 P.2d 632], italics in original): A detention "`may be undertaken by the police "if there is an articulable suspicion that a person has committed or is about to commit a crime" ...'" (In re James D., supra, 43 Cal.3d at p. 911, quoting Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [195 Cal. Rptr. 671, 670 P.2d 325]), while probable cause for arrest is said to exist only "when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime." (People v. Price (1991) 1 Cal.4th 324, 410 [3 Cal. Rptr.2d 106, 821 P.2d 610]; cf. People v. Harris, supra, 15 Cal.3d at p. 389.) Thus in assessing the constitutional propriety of a seizure of the person it is essential initially to determine whether the seizure was a detention, or was an arrest, or was both a detention and, subsequently, an arrest. (2b) The magistrate did not place this initial determination on the record of the preliminary examination, but as an integral part of our review we may infer a determination and assess whether the evidentiary record supports findings essential to that determination. Our review is simplified by the perception that there was no real dispute, on the preliminary examination record, as to most of the relevant facts. Unquestionably Soun and his confederates were seized, in the Fourth Amendment sense, as soon as Chew and his backup officers stopped their car. Soun argues that from that moment he was under arrest, and therefore the seizure was constitutionally permissible only if the officers had *1516 probable cause to arrest him. The Attorney General argues that at all relevant times the seizure was no more than a detention and thus subject to a lesser constitutional standard. We determine that the record supports a conclusion that Soun and his confederates were initially detained, and that the detention did not evolve into an arrest before the subjects were transported from the parking lot assembly area to Oakland police headquarters. (4) "`Detentions'" have been summarily defined as "`seizures of an individual which are strictly limited in duration, scope and purpose....'" (In re James D., supra, 43 Cal.3d at p. 911.) The term is often qualified by adjectives such as "temporary" or "investigative," but the terms are by no means self-executing: "Detentions may be `investigative' yet violative of the Fourth Amendment absent probable cause. In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest." (Florida v. Royer (1983) 460 U.S. 491, 499 [75 L.Ed.2d 229, 237, 103 S.Ct. 1319]; cf. In re Dung T. (1984) 160 Cal. App.3d 697, 714 [206 Cal. Rptr. 772].) Patently the permissible purpose of a detention is to investigate the suspicion of criminal activity on which the detention was predicated: "[T]o permit a speedy, focused investigation to confirm or dispel individualized suspicion of criminal activity." (People v. Gentry, supra, 7 Cal. App.4th at p. 1267.) (5) "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." (Adams v. Williams (1972) 407 U.S. 143, 146 [32 L.Ed.2d 612, 617, 92 S.Ct. 1921], italics added; People v. Johnson (1991) 231 Cal. App.3d 1, 13 [282 Cal. Rptr. 114].) But "[t]he scope of the detention must be carefully tailored to its underlying justification. [¶] The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. [Citations.] It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure." (Florida v. Royer, supra, 460 U.S. at p. 500 [75 L.Ed.2d at p. 238]; cf. People v. Bowen (1987) 195 Cal. App.3d 269, 273 [240 Cal. Rptr. 466]; In re Dung T., supra, 160 Cal. App.3d at p. 715.) *1517 (2c) Soun asserts that the Oakland police action was far too intrusive, and far too protracted, to be regarded as a detention. He points particularly to the evidence that he was removed from the car at gunpoint by a large number of police officers, was forced to lie on the ground, was handcuffed and placed in a patrol car, was transported from the site of the stop a distance of three blocks to a parking lot, and then was held at the parking lot for up to an additional thirty minutes, all without being told why he had been stopped or being permitted to communicate with his confederates. None of the evidentiary factors Soun cites would necessarily require a conclusion that Soun had been arrested rather than simply detained. (6) Courts have, for example, declined in particular circumstances to base a finding of de facto arrest on evidence that the officers stopped the individual at gunpoint (U.S. v. Alvarez (9th Cir.1990) 899 F.2d 833, 838-839), or required him or her to get out of a car (cf. Pennsylvania v. Mimms (1977) 434 U.S. 106, 109-111 [54 L.Ed.2d 331, 335-337, 98 S.Ct. 330]) and lie down on the pavement (U.S. v. Buffington (9th Cir.1987) 815 F.2d 1292, 1300), or handcuffed him or her (People v. Bowen, supra, 195 Cal. App.3d at pp. 272-274; cf. In re Carlos M. (1990) 220 Cal. App.3d 372, 385 [269 Cal. Rptr. 447]; U.S. v. Bautista (9th Cir.1982) 684 F.2d 1286, 1289-1290), or placed him or her in a police car (U.S. v. Parr (9th Cir.1988) 843 F.2d 1228, 1231), or transported him or her for legitimate police purposes short of booking or custodial interrogation (In re Carlos M., supra, 220 Cal. App.3d at p. 385; cf. Florida v. Royer, supra, 460 U.S. at pp. 504-505 [75 L.Ed.2d at p. 241]; People v. Harris, supra, 15 Cal.3d at p. 390 [but transportation impermissible in the circumstances of record]), or held him or her for more than a minimal amount of time (United States v. Sharpe (1985) 470 U.S. 675, 686-688 [84 L.Ed.2d 605, 615-616, 105 S.Ct. 1568] [20 minutes]; In re Carlos M., supra, 220 Cal. App.3d at pp. 384, 385 [30 minutes]; United States v. Place (1983) 462 U.S. 696, 709-710 [77 L.Ed.2d 110, 122, 103 S.Ct. 2637] ["we decline to adopt any outside time limitation" (although 90 minutes would be too long in this case)]). "[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances. [Citations.]" (In re Carlos M., supra, 220 Cal. App.3d at pp. 384-385; cf. U.S. v. Baron (9th Cir.1988) 860 F.2d 911, 914 ["we consider the totality of the circumstances"].) (2d) We turn to a consideration of all the circumstances of the Oakland car stop. Because the nature of the police officers' reasonable suspicions was itself a circumstance relevant to our inquiry, it is important to consider, at the *1518 outset, what a reasonable officer in the position of Chew and his colleagues would have suspected at the time of the automobile stop. Such a suspicion would have been based on a synthesis of information from two sources: the San Jose police communication (as relayed, with some inaccuracy as to details, by Williams's interoffice letter) and Chew's observations at the scene. Williams's letter furnished all the information Chew had as he went to the field. From it a reasonable police officer would have suspected that, subject to verification of details, the described vehicle had been in some way involved in the shooting or with its perpetrators. Such an officer would also have understood that San Jose police were concerned with verifying the details and wished initially simply to find the vehicle. Chew did find the vehicle and, in substantial compliance with the instructions relayed in Williams's letter, he simply reported the find and initially waited for direction while watching the car from a short distance away. For whatever reason, Chew did not receive immediate direction. Approximately 10 minutes later he saw "several" (by which he meant "three or more") males, who appeared to be Vietnamese or Southeast Asian, come from in front of the address he had been given for Nhim and get into the car, which then pulled away from the curb. This was new information. Williams's letter had described the suspected assailants but had focused primarily on the car itself; on its face the letter neither contemplated nor provided for the possibility that three or more people who generally resembled the description of the six assailants would be seen using the car. Chew's initial reaction was simply to follow the car while calling for backup police units. As he followed the car he made three additional observations: that there appeared to be six "Oriental[] or Vietnamese" males inside the car, a number that exactly matched the reported number of assailants, that the car's occupants repeatedly looked back at Chew, and that the car made a full circle and passed its point of origin. To a reasonable officer in Chew's position, these observations would have strengthened a suspicion that the occupants of the car were the assailants described in Williams's letter, both because the numbers corresponded and because the reactions of its occupants reflected concern at Chew's presence and a motivation either to evade him or at least to determine whether he was in fact following them. Chew decided to stop the car. He was "concerned of the activity going on inside the vehicle, based on the information that I received earlier, that the *1519 vehicle may have been involved in a homicide, and that the suspects were described as six Vietnamese male or Oriental males. And it appeared to be six male Orientals or Vietnamese inside the car, and that they were supposedly armed with a semi-automatic rifle, that concerned me. And I — at that time I made the decision to stop and detain the occupants of the car, fearing if I didn't at that point, there was a possibility of the car fleeing." He was also concerned that once the car was stopped the occupants might flee on foot. In all these circumstances we cannot conclude that the means Chew chose to effect the detention elevated the initial detention to the status of a de facto arrest for Fourth Amendment purposes. Chew and his colleagues "were authorized to take such steps as were reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop." (United States v. Hensley (1985) 469 U.S. 221, 235 [83 L.Ed.2d 604, 616, 105 S.Ct. 675].) Chew concluded that to attempt to stop the car by means suitable to a simple traffic infraction — in the prosecutor's words, "just pull up alongside and flash your lights and ask them to pull over" — "would not be technically sound as far as my safety or safety of other officers." We cannot fault Chew for his reasoning, or for proceeding as he did. In our view the initial stop, in the circumstances we have described, met the criterion of using the least intrusive means reasonably available under the circumstances. (7) Soun argues that even if the initial stop were regarded as a detention, the detention evolved into a de facto arrest when the individuals, seated in separate police cars, were moved three blocks to a parking lot that was known to police and had apparently been used by them, as an assembly area, on previous occasions. We cannot agree with Soun. By this time Fenton had arrived at the stop site. Once the individuals had been placed in separate cars, Chew showed Fenton the Williams letter. It was the first time Fenton had seen the letter; his watch had not been briefed on it. Fenton, a patrol division beat supervisor for that area, then as a practical matter took charge. He wanted to find out what San Jose wanted done, and decided to make his calls from Oakland police headquarters which was no more than five minutes' travel from the stop site. As he left for police headquarters, within a few minutes after the stop, Fenton directed that the six individuals be moved to the parking lot. Fenton was not asked, and did not volunteer, his reasons for moving the individuals, but another officer offered *1520 reasons wholly consistent with the known circumstances and with common sense: She testified that Fenton "directed us to move to an assembly point because we were blocking the roadway and there [were] so many cars. [¶] ... [¶] It was typical procedure. [¶]... [¶] It had nothing to do with the arrest situation. It was merely for officer's safety and to clear the roadway." A three-block transportation to an essentially neutral site for these rational purposes did not operate to elevate Soun's custodial status from detention to arrest. Finally, Soun argues that the period of time for which he was held at the parking lot was unduly protracted and therefore must in any event be deemed to have amounted to de facto arrest. Again we disagree with Soun. The record reflects that Soun was at the parking lot for approximately 30 minutes. Fenton fully accounted for this period of time, testifying that he went to police headquarters, made initial contact with Sergeant Robinson, realized in conversation with Sergeant Robinson that he would need more exact information concerning the detained individuals, returned to the parking lot where he could obtain the information, again established communication with Sergeant Robinson, and then, as soon as he and Sergeant Robinson had concluded that the individuals should be interrogated, arranged to have the individuals moved to interrogation rooms at police headquarters. In short, Fenton diligently pursued a means of investigation reasonably designed to dispel or confirm his suspicions quickly. (Cf. In re Carlos M., supra, 220 Cal. App.3d at pp. 384-385; United States v. Sharpe, supra, 470 U.S. at pp. 686-688 [84 L.Ed.2d at pp. 615-617].) The detention was no more protracted than was reasonably necessary for that purpose. We conclude that from the time the car was stopped until he was transported from the parking lot to police headquarters, Soun was in temporary or investigative detention and not under de facto arrest. (8a) The next question is whether the detention was permissible in the circumstances known to the detaining officers or to the officers who directed that the individual be detained. (9) "`[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him [her] to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he [she] intends to stop or detain is involved in that activity. Not only must he [she] subjectively entertain such a suspicion, but it must be objectively reasonable for him [her] to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his [her] *1521 training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]'" (In re James D., supra, 43 Cal.3d 903, 914, quoting In re Tony C. (1978) 21 Cal.3d 888, 893 [148 Cal. Rptr. 366, 582 P.2d 957].) It is now clear that a detaining officer who is not personally aware of all the facts on which a reasonable suspicion might be based may nevertheless properly detain an individual on the basis of a direction or information transmitted by police officers who were personally aware of such facts. (United States v. Hensley, supra, 469 U.S. at pp. 231-232 [83 L.Ed.2d at p. 614]; cf. Restani v. Superior Court (1970) 13 Cal. App.3d 189, 195-196 [91 Cal. Rptr. 429].) Soun argues that any detention effected by Chew and his colleagues in this case was constitutionally invalid for two reasons: first, because for want of witness consensus as to the description of the car or of any direct eyewitness recitation of its 1RCS558 license plate number, there was no sufficient factual basis for a reasonable suspicion of the car and its occupants; and, second, because San Jose police's Saturday communication to Oakland police did not request a detention or arrest and specifically requested that no action be taken. To the first point, Soun argues that "[w]itness statements as to make, year and color of the robbery getaway car were widely divergent," that "[t]he license plate number broadcast had not been reported by any witness, and was a number literally created by police," and that in sum the detention, based in substantial part on the DMV description of Nhim's car, was impermissibly based on "hunches and supposition." Soun asserts that the method Officer Kranich used "generated no more than an investigative lead that should have been pursued by other means," and that it was "unreasonable to detain the vehicle or its occupants without further information." Soun's argument is fatally flawed in two respects. First, his "hunches and supposition" label substantially mischaracterizes intelligent and resourceful police work. This was not a simple case of a bungled theft, which might have lent itself to contemplative investigation as officers could fit it into their schedules: this was a cold-blooded murder, possibly committed with a semiautomatic rifle, which called for urgent investigation and resolution. The very fact that witnesses' excited perceptions of important details were so divergent might well have stymied the investigation, or at least have substantially delayed it while evidence, and *1522 perhaps the perpetrators themselves, were lost, had not the police been willing to apply logic to the divergent accounts. A logical approach was made possible by the perceptions that all witnesses' accounts of the car were essentially consistent in three important respects: There was only one car with (presumably) only one license plate number; the car was a small foreign-made sedan (probably Japanese and possibly a Toyota, although also possibly a Volvo); and the first five characters of the license plate number were 1RCS5. Once Kranich determined that none of the three reported numbers of which he was aware would provide a match that remotely resembled any of the witness-furnished descriptions, he went to hypothetical combinations of numbers. With only two numeric characters to be filled in, the police had only 100 possible combinations — 1RCS500 through 1RCS599 — to run. Taking note of the predominance of 5's and 8's in witnesses' recollections of the license numbers, and taking account of the visual similarities between 5's and 8's, on the one hand, and the 3 (and to a lesser degree the 2) mentioned by separate witnesses, Kranich decided initially to try only combinations of 5's and 8's. Soun implies that this approach was "haphazard" but a more rational explanation is that it was a commendable attempt to save time: if Kranich's visual-similarities hypothesis was valid and his choice of 5's and 8's fortuitous, then he would be required to run only four combinations (1RCS555, 1RCS558, 1RCS585, 1RCS588) rather than one hundred; if he found no match he could run more combinations using other numbers. To his credit, Kranich did not limit himself to the last two characters but instead allowed for the possibility that all witnesses had mistaken the first of the final three numeric digits: thus he had eight combinations of 5's and 8's — three 5's, three combinations of two 5's and an 8, three combinations of two 8's and a 5, and three 8's — to run. He ran five or six of the combinations and encountered Nhim's car, which seemed to him a likely match because (1) it was a Toyota sedan, (2) Nhim's name sounded Asian and the crime had been committed in a primarily Asian neighborhood, and (3) Nhim's address was in Oakland and at least one witness had indicated the car was last seen headed in the general direction of Oakland. Kranich ran one more combination; he might have run many more — up to one thousand, to account for all possible combinations of any three numeric characters — but Nhim's car was clearly the best match he had found: "Nothing else that was coming back at that time ... was close to the make and model reported by the witnesses"; the other returns "mostly were American make cars...." In Kranich's own words (and even without hindsight) Nhim's car "would be a very likely candidate for ... further investigation...." It is not clear whether, at this point, Kranich was aware of Crown's sighting on *1523 the Highway 880 on-ramp. Although Crown's description of the Toyota he saw made it much newer, and of a different body style, than the car registered to Nhim, the sighting of the man with a rifle near the car tended to lend some weight to the assumption that the car involved in the crime was moving toward Oakland. That other San Jose officers agreed with Kranich that further investigation was what was called for is reflected in Seaman's communication to Williams that Oakland officers should simply undertake to locate the car. But this leads to the second flaw in Soun's argument: Contrary to his implication, Chew had "further information" by the time he detained Soun and his confederates. Chew had seen six Asian males in the car, and had observed their apparently self-conscious reactions to his presence. Soun correctly asserts that what Chew saw would not have been sufficient, in isolation, to warrant a detention, but of course Chew was not required to consider the information in isolation: The coincidence with descriptions of the assailants, and the use of a car which was, at least, "a very likely candidate for ... further investigation," was sufficient to justify the detention. (10) Soun's second point is, in essence, that the Oakland police had no legitimate business detaining him because the San Jose police had not requested that he be detained (and had, in fact, suggested that no action be taken). The difficulty with this point is similar to one of the difficulties with Soun's first point: it takes no account of actual events in Oakland on Sunday. Seaman's request, as relayed by Williams, patently contemplated that the Oakland police might find the car, and that the San Jose police should be permitted to take the investigation from there. But neither Seaman nor Williams could reasonably be understood to have given direction as to what to do if individuals who resembled the descriptions of the perpetrators should be found in juxtaposition with the car. Chew and his colleagues must be credited with a reasonable response to the situation as it actually developed. In any event the question whether the Oakland police did or did not respond to the wishes of the San Jose police would be essentially irrelevant to the dispositive question whether, on the basis of all the facts known to him on the basis of both the San Jose communiques and his own observations, Chew could with constitutional propriety seize Soun and his confederates. Unquestionably the answer is yes. United States v. Hensley, supra, 469 U.S. 221, on which Soun relies for this point, is distinguishable: Hensley is one of the substantial class of cases that demonstrates the principle that a police officer who receives a request or direction, through police channels, to detain named or described individuals may make a constitutionally valid detention, even without personal knowledge of facts sufficient to justify the *1524 detention, so long as the facts known to the police officer or agency that originated the request would be sufficient. Here Chew himself knew facts sufficient to justify the detention; there was no occasion to look for or to rely on a request through police channels that Soun be detained. Under our analysis the detention continued for approximately 45 minutes altogether, to the point at which Soun and his confederates were transported from the parking lot to Oakland police headquarters. Despite the diligence of Fenton and other Oakland officers in seeking further information from San Jose, nothing was developed either to confirm or to dispel the officers' suspicions until near the end of the period, when Sergeant Robinson and Fenton were able to discuss specific physical evidence and descriptions. The fact most of the witnesses in San Jose has described a car which was blue, like Nhim's, was not known to Chew when he made the stop but became known to Fenton from Sergeant Robinson. Fenton was also able to provide details of physical stature and dress — including a reversed 49er's baseball cap — which matched the information Sergeant Robinson had obtained from witnesses. By the end of the 45 minutes the officers' suspicions had been substantially confirmed and Sergeant Robinson had concluded — and Fenton ultimately acknowledged that he agreed — that they had probable cause to arrest all 6 of the occupants of the car for the murder of Khun. We agree with the conclusion Sergeant Robinson and Fenton reached. To determine whether the facts known to them "would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime" (People v. Price, supra, 1 Cal.4th at p. 410), we once again look to the totality of the surrounding circumstances and decide the case on its own facts. (Cf. People v. Guajardo (1994) 23 Cal. App.4th 1738, 1742 [29 Cal. Rptr.2d 21].) We have cataloged the facts known to the point at which Fenton talked with Sergeant Robinson. Their conversations provided direct comparisons between the information gathered from witnesses in San Jose and Fenton's observations of the car and its occupants in Oakland. Sergeant Robinson later testified that "[t]he first thing that I noted right away ... was that there were six suspects in the vehicle, and we had been informed by witnesses at the scene that there had been up to six people involved in the shooting. [¶] ... [¶] I asked Sergeant Fenton if one of the taller individuals might be wearing a red 49'er baseball cap backwards." A witness had mentioned the cap. Fenton replied that a tall individual was wearing such a cap; in his subsequent testimony Fenton recalled that Sergeant Robinson seemed rather excited by Fenton's reply. Fenton was also able to affirm for Sergeant Robinson that the six individuals appeared to be Asian. Sergeant Robinson recalled in testimony that "[t]he witnesses at the scene of the shooting described some of the defendants to, as appearing to be *1525 twelve years old in appearance, and others to be as old as eighteen to twenty years old. [¶] ... [¶] Sergeant Fenton stated that there was one individual in the car that appeared to be twelve years old...." Fenton also told Sergeant Robinson that the vehicle was a metallic blue 1981 Toyota two-door sedan, a description which generally matched that given by several of the witnesses in San Jose. Sergeant Robinson concluded, and told Fenton, "that I believed he had all of the suspects responsible for our shooting in San Jose." Sergeant Robinson therefore asked Fenton "to ask and obtain voluntary consent from the ... suspects to go to the Oakland Police Department to be fingerprinted and photographed, and wait until we could arrive to contact or make contact with him. [¶] I then told Sergeant Fenton that if that was not possible, and the suspects stated that they did not wish to do that, that I wanted him to arrest those individuals and transport them to the Oakland Police Department until I could arrive with my partner." Fenton undertook to obtain the voluntary consents Sergeant Robinson had asked him to seek, and testified that all of the individuals consented to be transported. Another officer's account differed from Fenton's, and the parties debate whether the evidence of record was sufficient, in the necessarily coercive circumstances at the parking lot, to support the magistrate's explicit finding that Soun and his confederates in fact consented. We need not resolve the point. Given that in the absence of consent the transportation to a police facility for interrogation would arguably have amounted to a de facto arrest (cf. Dunaway v. New York (1979) 442 U.S. 200, 211-213 [60 L.Ed.2d 824, 834, 99 S.Ct. 2248]; cf. also People v. Harris, supra, 15 Cal.3d at pp. 391-392), we conclude that at this point the arrest would in any event have been supported by sufficient probable cause. The facts known to the police in this case gave substantially more basis for "an honest and strong suspicion that the person arrested is guilty of a crime" (People v. Price, supra, 1 Cal.4th at p. 410) than did the facts in In re Dung T., supra, 160 Cal. App.3d 697, on which Soun relies. In Dung T. the perpetrators of a robbery had been described as six Vietnamese males in their early twenties riding in a Dodge automobile; two nights later police stopped a Dodge (which had been positively identified by a witness) which contained eight young Vietnamese males, including the minor, who was then fifteen years old. The Court of Appeal concluded that the officers' observations had been sufficient to detain but not to arrest: "The police had no detailed descriptions of the robbers other than their ages and nationalities. There were eight people occupying the car when it was stopped, but only six people were involved in the robbery. Thus at the time of the stop the police did not have probable cause to believe any one of the occupants of the car, including [the *1526 minor], was guilty of the robberies." (160 Cal. App.3d at p. 713.) In this case the numbers, general ethnic appearance, specific articles of clothing, and ages specific to persons of particular statures all matched, and the stop was effected on the morning following the afternoon killing: the totality of these circumstances far more directly supported an honest and strong suspicion of guilt. The seizure of Soun's person did not violate the Fourth Amendment. Motive[*] .... .... .... .... .... .... .... . The judgment of conviction is affirmed. Premo, Acting P.J., and Elia, J., concurred. Appellant's petition for review by the Supreme Court was denied August 10, 1995. NOTES [*] Pursuant to California Rules of Court, rule 976.1, the part of the opinion from its beginning through the sentence "The seizure of Soun's person did not violate the Fourth Amendment" (immediately before the heading "Motive"), and the last sentence of the opinion ("The judgment of conviction is affirmed"), are certified for publication. [*] See footnote, ante, page 1499.

118 F.2d 95 (1941) DODGE BROTHERS, Inc., v. UNITED STATES (four cases). Nos. 4722-4725. Circuit Court of Appeals, Fourth Circuit. March 10, 1941. *96 *97 John W. Drye, Jr., of New York City (Larkin, Rathbone & Perry and T. R. Iserman, all of New York City, and Hershey, Donaldson, Williams & Stanley, Albert E. Donaldson, and Raymond S. Williams, all of Baltimore, Md., on the brief), for appellant. Milford S. Zimmerman and Arthur L. Jacobs, Sp. Assts. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and J. Louis Monarch, Sp. Assts. to Atty. Gen., and Bernard J. Flynn, U. S. Atty., and G. Randolph Aiken, Asst. U. S. Atty., both of Baltimore, Md., on the brief), for appellee. Before PARKER, SOPER, and DOBIE, Circuit Judges. DOBIE, Circuit Judge. Dodge Brothers, Incorporated (hereinafter called appellant), instituted four suits, in the order in which they are numbered, for the recovery of $374,682.15, $545,666.94, $947,623.80, and $498,657.85, as alleged overpayments of federal income taxes for the taxable years 1925, 1926, 1927 and 1928, respectively. The actions arose under the Revenue Acts of 1926 and 1928, 26 U.S.C.A. Int.Rev.Acts, pages 145 et seq., 351 et seq., and, because the taxes in question were paid to a former Collector who was not in office when the suits were begun, were brought against the United States of America (hereinafter called appellee). See 28 U.S.C.A. § 41 (20). From the District Court's judgments in favor of appellee, (33 F.Supp. 312), appellant brought these appeals. The four cases by agreement were tried together and were consolidated for argument before this Court. John F. Dodge and Horace E. Dodge, as partners, established a machine-shop in Detroit in 1900. From 1903 to 1914, the partnership manufactured automobile parts for the Ford Motor Company. In 1914, however, the Messrs. Dodge decided to manufacture and sell an automobile of their own make and, accordingly, incorporated the company of Dodge Brothers in the State of Michigan on July 7, 1914. Until their deaths in 1920, they wholly owned and personally managed the business of the corporation which consisted primarily of the manufacture and sale of the Dodge 4-cylinder automobile. After their deaths, the stock in the corporation passed to their respective estates. On May 1, 1925, an underwriting syndicate of bankers, headed by Dillon, Read & Company (hereinafter called D. R. & C.), purchased all the assets of Dodge Brothers for $146,000,000 in cash. D. R. & C. then organized in Maryland the appellant corporation and sold to it the recently-acquired assets of Dodge Brothers in exchange for: (1) a payment by appellant of $14,000,000 in cash; (2) the issuance to D. R. & C. of substantially all appellant's debentures and stock; and (3) the assumption by appellant of all the liabilities of Dodge Brothers. Since appellant paid the $14,000,000 in cash out of the assets received, the net market value and cost of the assets of Dodge Brothers was $132,000,000. Of this latter sum, it is agreed that $81,913,473.62 represented the value of the so-called tangible assets (viz., cash, securities held, notes and accounts receivable, investment in inventories, land, buildings, machinery and equipment). Although the item of "Good Will" had formerly been carried on the books of Dodge Brothers at the nominal valuation of one dollar, appellant, under the terms of this sale, had apparently become the owner of intangible assets of an approximate value of $50,000,000. In fulfilling its obligations under the purchase contract, appellant issued to D. R. & C. the following securities: (a) $75,000,000, principal amount of 6% Sinking-Fund Gold Debentures; (b) 850,000 shares of Preference Stock, without par value; (c) 1,500,000 shares of Common Stock Class A, without par value; (d) 500,000 shares of Common Stock, Class B, without par value. The underwriting group organized several selling syndicates which, in turn, sold all of the debentures and a very large part of the stock to the public. The debentures were offered and sold to the public at 99; the preference stock, each share carrying with it a bonus of one share of Class A common stock, was offered and sold as a unit at 100; the preference stock was sold on the New York Stock Exchange at about 75; while the Class A common stock was sold on the Curb Exchange at about 25. The Class B common stock was not sold to the public, but since, in addition to all the rights of the Class A stock it had also voting rights, it may fairly be presumed to *98 have had at least the same value as the Class A stock. In short, the public market value of the securities issued originally by appellant aggregated about $190,500,000, and the underwriting group, in addition to the retention of a large part of the more valuable common stock, realized a rather sizeable profit of more than $20,000,000. On June 30, 1928, appellant's entire business was sold to the Chrysler Corporation, a manufacturer and seller of motor cars. The sale was completed by an exchange of Chrysler stock for Dodge stock in the proportion of one share of Chrysler for one share of Dodge preference stock, one share of Chrysler for five shares of Dodge Class A common stock, and one share of Chrysler for ten shares of Dodge Class B common stock. Chrysler assumed the liability of the debentures, all of which were eventually retired, either by conversion through the sinking fund or by call and payment by Chrysler. The Chrysler Corporation received all of appellant's assets, and continued the manufacture and sale of the Dodge car. Although the corporate identity of appellant has been continued, appellant has engaged in no active business since July 30, 1928. For the years 1925 to 1928 inclusive, appellant made the necessary income tax returns and, in turn, duly paid the amount of taxes shown thereon, a sum of about $6,500,000. In the current course of the audit of appellant's returns by the Commissioner of Internal Revenue, various corrections and adjustments were made, resulting in a determination by the Commissioner of a deficiency for the year 1925 of $477,647.95, and an overassessment for the years 1926, 1927 and 1928 of an aggregate sum of $922,198.99. During the negotiations between appellant and the Commissioner, appellant for the first time made two additional claims: (1) that in appellant's purchase of all the assets of Dodge Brothers on May 1, 1925, appellant had "acquired for a part of the purchase price the model and design of the Dodge 4-cylinder automobile, which was a depreciating asset, the cost of which was deductible over its estimated life;" and (2) that appellant "was entitled to deduct from its gross income the amount of the discount applicable to the years 1925 to 1928, inclusive, at which it claimed its 6% Sinking Fund Gold Debentures were issued." Appellant's claim (1) for depreciation (in the nature of obsolescence) and its claim (2) for amortization of the bond discount were both rejected by the Commissioner. After appropriate petitions for refund were filed and, later, rejected, these suits were instituted. The Depreciation Issue The corporation of Dodge Brothers, formed in July, 1914, had for its policy the manufacture and sale of a single model of automobile. It was the opinion of the owners of the corporation that this method of operation would be both cheaper and more efficient than either the making of several models simultaneously or the making of radical changes on a model from year to year. Hence, after careful experimentation and testing, a single-model 4-cylinder car was produced for sale in November, 1914. The corporation consistently adhered to the original plan of manufacture and sale and the Dodge Brothers motor cars were, thus, described by consecutively-running serial numbers and not by year or model designations. It is stipulated that up to May 1, 1925, changes in the Dodge car were made so gradually from time to time that units manufactured in each successive year were substantially similar to those made in the preceding year. Dodge Brothers advertised its products extensively, always emphasizing the car's stable design. Notwithstanding the fact that other automobile manufacturers, with the exception of Ford, followed the policy of introducing yearly models, the automobile buying public became thoroughly familiar with the characteristics of the Dodge Brothers motor car and with the fixed policy of the corporation. This car became known as the "utility motor car." Appellant describes this car as the "proved car." Up to, and after, May 1, 1925, the Dodge car enjoyed tremendous popularity and brought large profits to the Dodge corporation. Nevertheless, about this date, there was a marked trend towards the use of 6-cylinder cars in the Dodge's competitive field. Appellant maintains that the Dodge executives had "actually foreseen" that eventually a time must come when the 4-cylinder Dodge could no longer be made and sold profitably. But the uncertainty of the corporation's future policy is strongly indicated by the history of appellant's manufacturing program subsequent to May 1, 1925 (Appellee's Brief pp. 4, 5): "Up to January, 1927, all passenger automobiles manufactured and sold by the appellant had four cylinders. On January 3, *99 1927, appellant began to produce a Dodge four cylinder automobile with a redesigned motor, known as the `126.' On January 8, 1927, a Dodge six cylinder passenger automobile was announced to the public, termed the `Dodge Senior 6.' In April, 1927, the appellant offered for sale a four cylinder passenger automobile with a new motor, known as the `124.' In July, 1927, the appellant offered for sale a four cylinder passenger automobile known as the `128.' In December, 1927, a Dodge six cylinder automobile was offered for sale to the public, termed the `Dodge Victory Six.' In March, 1928, the appellant offered for sale a Dodge six cylinder automobile known as the `Dodge Standard Six.' The appellant continued to manufacture and sell the Dodge four cylinder passenger automobile until March, 1928. After that date, sales thereof continued in small quantities until the supply was exhausted." At all events, it was not until September, 1927, that appellant definitely decided that the 4-cylinder car would be replaced by the "Dodge Standard Six," a light 6-cylinder car. The production of the 4-cylinder car was finally abandoned in March, 1928, at the time that the Standard Six was introduced. Appellant contends that as of May 1, 1925, the Dodge car was a wasting asset; that at that date its reasonably remaining economic life was not in excess of four years; that at that date appellant had reasonably estimated the remaining economic life of the car; and that, therefore, appellant should be allowed to amortize the cost of this asset over the expected life of the car. The exact position of appellant is succinctly stated in paragraph 36 of the stipulation of facts: "The plaintiff contends that the Dodge four-cylinder passenger automobile manufactured and/or sold by Dodge Brothers and by Dodge Brothers, Inc., from 1914 to 1928 was a `proved car', and that said `proved car' was one of the assets transferred and conveyed to it by Dodge Brothers on May 1, 1925, and that the cost basis to it of said `proved car' was, under the Revenue Acts of 1926 and 1928, $10,000,000. "The plaintiff further contends that it is entitled to deductions on account of the depreciation and obsolescence of said `proved car' in the taxable years 1925, 1926, 1927 and 1928." Appellee denies that appellant is entitled to any deduction whatsoever in connection with the "proved car." Depreciation is specifically recognized as a proper deduction from gross income in both the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts § 234(a) (7), pp. 185, 187, and the Revenue Act of 1928, 26 U.S.C.A. Int. Rev.Acts § 23(k), pp. 356, 358. Those Acts provide that in the computation of net income, there shall be allowed as a deduction: "A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence." Articles 161, 162, and 163 of Treasury Regulations 69 (relating to the Revenue Act of 1926), dealing specifically with the depreciation of intangible property, are the regulations most applicable to the instant case. Article 163 is quoted for its particular pertinence: "Art. 163. Depreciation of intangible property. — Intangibles, the use of which in the trade or business is definitely limited — in duration, may be the subject of a depreciation allowance. Examples are patents and copyrights, licenses, and franchises. Intangibles, the use of which in the business or trade is not so limited, will not usually be a proper subject of such an allowance. If, however, an intangible asset acquired through capital outlay is known from experience to be of value in the business for only a limited period, the length of which can be estimated from experience with reasonable certainty, such intangible asset may be the subject of a depreciation allowance, provided the facts are fully shown in the return or prior thereto to the satisfaction of the Commissioner. No deduction for depreciation, including obsolescence, is allowable in respect of good will." (Italics ours.)[1] Inasmuch as the income tax statutes have frequently been reenacted since the publication of these regulations, the regulations may be regarded as having the tacit approval of Congress. See Murphy Oil Co. v. Burnet, 1932, 287 U.S. 299, 307, 53 S.Ct. 161, 77 L.Ed. 318; United States v. Cerecedo Hermanos y Compania, 1908, *100 209 U.S. 337, 339, 28 S.Ct. 532, 52 L.Ed. 821; and cf. McCaughn v. Hershey Chocolate Co., 1931, 283 U.S. 488, 492, 493, 51 S. Ct. 510, 75 L.Ed. 1183. Although we obviously recognize the applicability of the above-cited statute to the intangible properties of a given corporation, we have encountered no little difficulty in determining the exact nature of the particular intangible concerning which appellant seeks the instant depreciation. Appellant emphasizes in its reply brief that it "does not claim depreciation upon the public acceptance of the car;" but "it does claim depreciation upon the model and design of the car." Appellant reiterates in this same brief that the depreciation it seeks is upon an intangible asset. It admits that the Commissioner has already allowed full depreciation on the physical tools and equipment — special tools, jigs, fixtures, dies, drawings, patterns and models — which were necessary for the utilization of the intangible creation. Appellant further admits that it has been allowed full deductions for its expenses in connection with the design, experiment, and development of its products. But it nevertheless insists that no deduction has yet been allowed for the obsolescence of the intangible asset inherent in the model or design of the "proved car," the value of which is based, not upon any physical elements, but rather upon the foresight and ingenuity of the creator. Appellant indicates that the assets of Dodge Brothers which it had acquired from D. R. & C. had a net market value of $132,000,000. The value of the so-called tangible assets was $81,913,473.62. The intangibles, therefore, must have had a valuation of approximately $50,000,000. Appellant recognizes that a substantial part of the $50,000,000 is allocable to good will; but it maintains that, out of this sum, $10,000,000 is representative of the cost of the model and design of the "proved car." The value set by appellant on the model and design was approved by three of appellant's witnesses, men who had had long experience in the automotive industry. Article 163 of Treasury Regulations 69, supra, provides that an intangible asset may be subject to a depreciation allowance, where its use in a business is definitely limited. As a condition precedent to receiving this deduction, the taxpayer must show: (1) that the intangible asset was acquired through a capital outlay; (2) that the asset is "known from experience to be of value in the business for only a limited period;" and (3) that the length of this period "can be estimated from experience with reasonable certainty." The regulation then specifically states, and this is unanimously supported by the decisions, that "No deduction for depreciation is allowable in respect of good will." See Clarke v. Haberle Crystal Springs Brewing Co., 1930, 280 U.S. 384, 50 S.Ct. 155, 74 L.Ed. 498; Red Wing Malting Co. v. Willcuts, 8 Cir., 1926, 15 F.2d 626, 49 A.L.R. 459, certiorari denied, 1927, 273 U.S. 763, 47 S.Ct. 476, 71 L.Ed. 879. Judge Chesnut, in his opinion filed in the District Court, held that the intangible asset of the model and design of the "proved car" was only a part of the good will purchased by appellant and that the depreciation thereof was, accordingly, not deductible. 33 F.Supp. at page 318. We agree with Judge Chesnut here and we believe that, on this point, the evidence amply supports both his findings of fact and his conclusions of law. It has long been settled that the depreciation or obsolescence of good will is not a deductible item in the computation of a taxpayer's net income. Clarke v. Haberle Crystal Springs Brewing Co., supra; Red Wing Malting Co. v. Willcuts, supra. See also Art. 163, supra. This form of deduction has been denied because of the manifest difficulties inherent in the computation of both the life span and the value of this intangible asset. In fact, good will, in any practical sense, has no terminable life; but, rather, it continues in existence just so long as the business continues, and its value fluctuates in direct relationship with the annual variations in the profits of the business with which it is associated. Good will cannot be carved out of a business and sold independently of the going concern; for its tangibility and its value exist only to the extent that such tangibility and such value are connected with a going business. See Metropolitan National Bank v. St. Louis Dispatch Co., 1893, 149 U.S. 436, 446, 13 S.Ct. 944, 37 L.Ed. 799, citing Story on Partnerships § 99; Betts v. United States, 1926, 62 Ct. Cl. 1, 8. As is indicated in appellant's original brief, all the assets acquired by appellant on May 1, 1925, were purchased in bulk for a single total consideration. No specific amount, no part of the purchase *101 price, was earmarked or set aside for the purchase of any particular specific asset, tangible or intangible. Yet, appellant asserts that from an unidentified $50,000,000, which amount normally would find its place on the balance sheet as "good will", a sum of $10,000,000 may be separated as the value of the intangible asset in question, the "proved car". But how does appellant determine the value of this intangible? Appellant does not refer to the value of the physical models, designs, blueprints or drawings of the "proved car"; for depreciation has already been allowed on these tangibles. Also, appellant does not refer to the accumulative expenditure of $2,600,000, which was incurred by appellant's predecessor in designing and developing the "proved car"; since deductions have also been allowed on this item on an annual expense basis. A valuation of $10,000,000 apparently is reached by capitalizing the increased profit which was reasonably anticipated through the use of the model and design of an already "proved car". Appellant states in its brief that: "It acquired this asset with its value tremendously enhanced by the knowledge and assurance that that car was then capable of earning profits of around $20,000,000. a year. It acquired a design of a motor car that already had public acceptance. If it reasonably could be expected that that car, making such profits, would have an economic life of at least two years from the date of purchase, the appellant contends that the car was then worth at least $10,000,000. If a longer life were ascribed to it, the value would, of course, be increased." A valuation based upon the capitalization of the average of a company's earnings over a number of years smacks peculiarly of a method used in evaluating good will. In concluding that the "proved car" was not a properly depreciable asset, Judge Chesnut stated in his opinion (33 F.Supp. at page 318): "If it be assumed that the taxpayer's conception of what constituted the `proved car' may be regarded as intrinsically an item of intangible property, it is really inseparable from good-will in this case. It is important, of course, to have clearly in mind what the `proved car' really is. The term does not refer to any particular tangible automobile but only to the design or model of an automobile. The expression really denotes not the actual product made but rather the qualities of that product in popular estimation; or, in other words, it means that the public approved the Dodge four-cylinder car as evidenced by its purchase in large quantities over a period of years. The fact that the Dodge corporation as a going concern put out a product which had enjoyed popular approval for a period of years of course gave promise that under unchanged conditions it would continue to have large net profits which would be realized through the continued popular approval and purchase of the same product. But this is only the long accepted legal meaning of the term `good-will' which, as was said by Lord Eldon in Cruttwell v. Lye, 17 Ves. 335, 346, is `nothing more than the probability that the old customers will resort to the old place.'" In acquiring the model and design of the Dodge car, the appellant had secured a "reasonable expectancy of preference in the race of competition." See Mr. Justice Cardozo in Re Brown, 1926, 242 N.Y. 1, 150 N.E. 581, 582, 44 A.L.R. 510. Such purchase, when viewed singularly, can be regarded as merely an acquisition of one of the many elements of the seller's total good will. We have considered three of the cases cited by appellant with particular care. See Essex Motors v. Commissioner, 1931, 22 B.T.A. 804; Perine Machinery Co. v. Commissioner, 1931, 22 B.T.A. 450; Pennsylvania Salt Mfg. Co. v. Commissioner, 1930, 18 B.T.A. 1148. Without going into the merits of these cases, we believe that all three are clearly distinguishable from the instant case. In all three cases there was present, too, the idea of a specific purchase of a definitely earmarked item. There was present in each of these cases an isolated asset, the useful life of which could be reasonably estimated, and the value of which was reasonably certain. These cases did not have, as the instant case does have, the presence of a bulk purchase of assets with an unidentified sum allocable to good will. The very idea of the possibility of splitting good will into its component parts, in an attempt to secure a deduction from gross income, has very recently been denied in United States Industrial Alcohol Co. v. Commissioner, Nov. 28, 1940, 42 B. T.A. 1323. The problem involved in the United States Industrial Alcohol case was reduced to a simple question (42 B.T.A. at page 1345): *102 "Where a going business is purchased, the buyer acquiring good will along with other assets, do orders on the seller's books constitute a divisible asset capable of separate valuation, or are they merely the current evidence of a continuing operation, the value of which is included in `good will' and without which it would be evident that no `good will' existed?" In answering this question in favor of the Commissioner, the Board of Tax Appeals concluded (42 B.T.A. at page 1346): "Since the contracts were merely the embodiment of such good will in so far as current business was concerned, and, since good will is not depreciable property, we conclude that the asset which petitioner seeks to depreciate, being but a part of a larger whole not subject to depreciation, was not susceptible of such treatment." The term "proved car" appears to have been evolved by one of appellant's expert tax accountants. This name, and the philosophy and theory underlying it, are ingenious and plausible. Yet we believe that, for the purposes for which appellant contends, the existence, apart from good will, of the "proved car" is almost as mythical as Santa Claus or Jack Frost, almost as illusory as general prosperity. Deductions, under federal tax statutes, are based on hard facts and stern realities, not on myths and illusions. We believe that the model and design purchased by appellant was merely one of the manifestations of the good will of appellant's predecessor — a manifestation which any purchaser of an established automotive manufacturing company would reasonably expect to find among all the purchased assets. In the light of this conclusion, we need not consider the other questions raised by appellee on this same point. The Amortization Issue Appellant contends that in the purchase of the Dodge Brothers' assets on May 1, 1925, it had issued its debentures at a discount; and that it was therefore entitled to deduct from its gross income the amount of this discount applicable to the years 1925 to 1928 inclusive. It has already been indicated above that, in addition to the payment of $14,000,000 in cash and the issuance of different classes of stock, appellant had issued $75,000,000 in 6% Gold Debentures. Based upon the values maintained in the sales subsequently made by the underwriting syndicate the public market value of appellant's securities may be said to have totalled about $190,500,000. Appellant had previously alleged in its petition to the District Court that, in exchange for $132,000,000 in tangible and intangible assets, it had issued securities of a fair market value of $190,500,000. However, the District Judge stated in his opinion that the public market value of the securities, created after the original issuance by appellant, was "not necessarily a fair measure of value for the aggregate of all the securities when first issued." 33 F.Supp. at page 322. Hence, on this appeal, appellant makes the contention that the minimum market prices shown by the instant record totalled $167,900,000, of which $74,250,000 was represented by debentures. These figures were reached by adhering to the following schedule (but cf. Helvering v. Safe Deposit & Trust Co., 4 Cir., 1938, 95 F.2d 806, 812; Commissioner v. Shattuck, 7 Cir., 1938, 97 F.2d 790, 792): Debentures, $75,000,000 principal amount @ 99 ........................................ $ 74,250,000.00 Preference stock, 850,000 shares @ 75 ........ 63,750,000.00 Class A Common Stock, 1,500,000 shares @ $14.95, as fixed by Appellee in determining tax liability of D. R. & C. 22,425,000.00 Class B Common Stock, 500,000 shares @ $14.95, as fixed by appellee in determining tax liability of D. R. & C. 7,475,000.00 _______________ Total ..................................... $167,900,000.00 On the basis of this schedule, appellant maintains that all the securities were issued at a discount of $35,900,000 ($167,900,000 less $132,000,000); that the total discount should be proportionately distributed over the debentures and stocks; that the particular discount allocable to the debentures was $16,625,976.94. Cf. Hummel-Ross Fibre Corp. v. Commissioner, 4 Cir., 1935, 79 F.2d 474; Pierce Oil Corp. v. Commissioner, 1935, 32 B.T.A. 403, 420. Appellant then makes specific claims of amortization of the discount allocable to the debentures of each of the taxable years here involved. As an alternative to the foregoing claim for amortization, appellant contends that it should be allowed to amortize a discount of 5% — comprised of a discount of 1% at which the debentures were sold to the public by the underwriters, the commission of 3% paid to the selling agents, and an added charge of 1% for a reasonable underwriting fee. This alternative contention is based upon the assumption that if the underwriters had purchased only debentures, and *103 if this purchase had been made for cash, it would have been necessary for the underwriters to have purchased the debentures at not more than 95 in order to meet this sales program. Both the Revenue Act of 1926, 26 U.S. C.A. Int.Rev.Acts, § 234(a) (2), (4), p. 186 and the Revenue Act of 1928, 26 U.S. C.A. Int.Rev.Acts § 23(b), (f), pp. 356, 357, provide that a deduction shall be allowed both for interest paid or accrued within the taxable year and for losses sustained during the taxable year. No express provision is made in either statute permitting a deduction for the discount at which corporate obligations are sold. However, the authority for the deduction for amortization of bond discount is found in the Treasury Regulations applicable to the two Revenue Acts in question. (See Art. 68, Treas.Reg. 74, issued under the Revenue Act of 1928; Art. 545, Treas.Reg. 69, issued under the Revenue Act of 1926): "If bonds are issued by a corporation at a discount, the net amount of such discount is deductible and should be prorated or amortized over the life of the bonds." The taxpayer is thus permitted to deduct annually, as a "loss", the amortization of the discount over the life of the bond. Helvering v. Union Pacific R. Co., 1934, 293 U.S. 282, 284-287, 55 S.Ct. 165, 79 L.Ed. 363. We might agree to the proportional distribution of the total discount between the bonds and stocks (Hummel-Ross Fibre Corp. v. Commissioner, supra; Pierce Oil Corp. v. Commissioner, supra); also, we are not prepared to lay down any universal proposition that where bonds are issued for property, a reasonably estimated discount may never be taken as an amortized deduction. Yet we still believe that appellant does not possess a valid claim on the amortization issue. In our opinion, the evidence does not show that appellant had issued its bonds under circumstances which would be the equivalent of a "discount", as that word is used in the applicable Treasury Regutions. This Court has stated before that "in the application of income tax laws the substance and not the form should control." Per Northcott, C. J., in Helvering v. Security Savings & Commercial Bank, 4 Cir., 72 F.2d 874, 876. Hence, in looking at the core of the instant transaction, we are impressed by the fact that not only were all the offered securities easily disposed of, but that, also, the underwriting group realized a handsome profit of $20,000,000 in addition to the retention of a large part of appellant's voting stock. The circumstances surrounding appellant's original issuance of the securities are not typical of the circumstances that might compel a corporation to discount its securities in the effort to secure for them a ready market. As the facts later revealed, the buying public was only too willing to purchase the securities of appellant. Apparently no discount was necessary for the ready marketing of these securities. But even if we were to concede that a discount might have been necessary for ready marketing, the prices which netted great profits for the underwriters could not here be regarded as the true value of appellant's securities on the date of issuance. Without an available public market to act as a guide, it is difficult to see how the securities originally issued could be treated as having a value any greater than the agreed total value of the very assets of Dodge Brothers which these securities represented — that is, a value of $132,000,000. In income tax accounting, the issuance of bonds at a discount is regarded as an assumption by the issuing corporation of additional interest payments. It therefore becomes incumbent upon us to look to the substance of a given transaction to see whether a discount, in the nature of additional interest, has actually been given by the issuing corporation, thus determining whether such discount comes within the amortization regulation. In New York, Chicago & St. Louis R. R. Co. v. Commissioner, 1931, 23 B.T.A. 177, 196, affirmed in 1933, 62 App.D.C. 29, 64 F.2d 152, the Board of Tax Appeals aptly stated: "Discount is a variable term, but the meaning which is clearly intended in this connection is, the difference between the face amount of the debt which, it is assumed, will be paid at maturity, and the actual lower amount which is received from the lender at the time of the creation of the debt. Colloquially, it is the difference between the face amount of the bonds and the lower cash sale price. The amortization of this discount imports a theory that the discount is an adjustment of the difference between the interest prescribed and the going market rate for money. It is sometimes metaphorically called deferred interest. To a taxpayer on the cash basis, amortization is not deductible, Chicago & Alton R. R. Co. v. United States, 53 Ct.Cl. 41; Baldwin Locomotive Works v. McCoach [D.C.], 215 *104 F. 967, [Id., 3 Cir.] 221 F. 59, because whether this quasi-interest be treated as if paid at the time of the issuance of the bonds or at the time of their maturity, there is no room for a non-cash deduction at any other time when no actual disbursement takes place. On the accrual basis, the theory being that the discount is quasi-interest on a loan, it is treated as if accruing ratably year by year in enlargement of the actual interest expressed in terms in the bond. It seems plain, therefore, that this amortization is but a concept devised for accounting convenience and is limited by the resemblance to interest. Were the discount regarded as a variation in the amount of the principal of the loan either at the time it was made or at the time of repayment, it may be questioned whether even an accrual system could recognize it at intermediate times. It is only as quasi-interest that its amortization is given deductibility." Under this limited interpretation of the meaning of "discount", we are not able to sustain the contentions of appellant. Appellee, in its brief, and the District Judge, in his opinion, both cite New York, Chicago & St. L. R. R. Co. v. Commissioner, supra, and Southern Ry. Co. v. Commissioner, 1933, 27 B.T.A. 673, affirmed in part and reversed in part on other grounds, 4 Cir., 1935, 74 F.2d 887, in support of the broad proposition that when bonds are issued for property no discount is incurred. We do not so interpret these cases; rather, do we find in them support for the less sweeping view we have expressed herein. In the Southern Ry. case, supra, the petitioner had acquired Mobile & Ohio General 4% Bonds, with a par value of $8,356,000 and a market value of $7,938,200. In exchange for the Mobile & Ohio bonds, the petitioner had conveyed its own bonds of a par value of $8,356,000. Petitioner sought to amortize as a discount the difference between the market value of the acquired bonds and the total par value of the issued bonds. The Board of Tax Appeals denied the existence of a "discount" and cogently stated (27 B.T.A. at page 688): "The promise to pay a greater sum than the value of the property does not establish ipso facto the presence of discount in the transaction. The holders of the Mobile & Ohio's General 4's [the acquired bonds], having voting control of the Mobile and Ohio, may have driven a hard bargain in the petitioner's attempt to secure that control. In that situation the doctrine of nondeductibility of cost of property until its realization through sale or other disposition would deny the claimed deduction. We see nothing in the stipulated facts to indicate discount." We believe that the evidence does not establish the existence of a debenture discount in the original transfer of the securities from appellant to the underwriting group. Furthermore, we reject appellant's alternative contention, that a 5% discount should be allowed, inasmuch as this contention is expressly based on an assumption which is in direct contradiction to the stipulated facts. Appellant made no substantial expenditure for expenses incurred, or commissions paid, in the final sale and marketing of the securities. All marketing expenditures were incurred and paid by the underwriting group. The members of this group acted entirely for themselves; in no way, wise or manner did they represent appellant. Under this hypothetical analysis, which is utterly contrary to the actual facts, appellant must necessarily fail. For the reasons expressed above, the judgments of the District Court are affirmed. Affirmed. NOTES [1] The italicized final sentence of Article 163 was the result of an amendment of August 5, 1927, by Treasury Decision 4055, VI-2 Cum.Bull. 63. That Treasury Decision merely was a specific declaration of the already existing interpretation by the Commissioner.

512 S.E.2d 158 (1999) 29 Va. App. 350 Cornelius Rodney COSTON v. COMMONWEALTH of Virginia. Record No. 0404-98-1. Court of Appeals of Virginia, Norfolk. March 23, 1999. *159 B. Cullen Gibson, Norfolk, for appellant. Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee. Present: FITZPATRICK, C.J., and BRAY, J., and OVERTON,[*] Senior Judge. OVERTON, Senior Judge. Cornelius Coston (defendant) appeals his conviction for forgery of a public record, in violation of Code § 18.2-168. He contends that the summons he signed was not a public record because it was not issued by a "public officer or public employee." Code § 18.2-168. We hold that a "public officer" did issue the summons, and we affirm. On November 9, 1996, Sergeant Anthony Primus was employed as a security guard assigned to the Huntersville Apartments, a privately owned apartment complex in Norfolk, Virginia. Primus was licensed by the Virginia Department of Criminal Justice Services to work as a security guard. On this evening, Primus saw defendant trespassing on the grounds of the apartments. When Primus stopped defendant, defendant identified himself as Clyde Washington. Primus issued a summons to defendant which defendant also signed "Clyde Washington." Defendant was later arrested for forging a public document, to wit: the summons. At trial, defendant moved to strike the evidence on the ground that Sergeant Primus was not a "public officer or public employee." The trial court ruled that Primus was a "registered armed security guard" and such guards are public officers or employees for purposes of Code § 18.2-168, the forgery statute. Defendant was convicted of forgery, and this appeal followed. The question before us is whether a security guard registered pursuant to Code § 9-183.3 is a "public officer or public employee" for purposes of Code § 18.2-168. If so, then we must affirm defendant's conviction. If Sergeant Primus was not such an officer or employee, we must reverse. The answer to the question requires an examination of the statutory scheme that registers and empowers security guards in the Commonwealth. No person may "be employed by a licensed private security services business in the Commonwealth as ... [an] armed security officer ... without possessing a valid registration issued by the Department [of Criminal Justice Services]." Code § 9-183.3. Sergeant Primus testified that he was registered and possessed a license to be a security guard. Security officers must undergo compulsory training and pass a background investigation. See Code §§ 9-182, -183.3. They are also subject to investigation and discipline by the Criminal Justice Services Board. See Code § 9-182. Security officers have several powers normally reserved for police officers. They are exempt from civil liability in connection with the detention of a person suspected of larceny. See Code §§ 18.2-105, -105.1. When a crime is committed in an officer's presence or probable cause exists to suspect someone of shoplifting, the officer may "effect an arrest" and is "considered an arresting officer." Code § 9-183.8. As an arresting officer, a security officer may "take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice." Code § 19.2-74. Through substantial regulation, the General Assembly has clothed registered security officers with many of the powers reserved for public employees or officers. Indeed, in some instances, a security officer is treated exactly like a police officer. We hold *160 that where, as here, a registered security officer is engaged in a duty specifically granted by statute, that officer is a "public officer or public employee" for purposes of Code § 18.2-168. When defendant forged the summons issued by Sergeant Primus, it was as if defendant had forged a summons issued to him by a police officer, and the same criminal culpability resulted. See Pope v. Commonwealth, 19 Va.App. 130, 449 S.E.2d 269 (1994). We are careful to limit our holding to the four corners of the case before us. We do not hold that a private security officer is a public officer or public employee for all purposes or even most purposes. The general rule is that he is not. See, e.g., United States v. Francoeur, 547 F.2d 891, 893 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977) (holding that amusement park security guards are not state actors for Fourth Amendment search and seizure purposes); Mier v. Commonwealth, 12 Va.App. 827, 833, 407 S.E.2d 342, 346 (1991) (holding that security agents are not state actors for Fifth Amendment custodial interrogation purposes). We merely hold that, considering the legislative intent evidenced by the code sections at issue, Sergeant Primus was a "public officer" in this instance. Accordingly, defendant's conviction is affirmed. Affirmed. NOTES [*] Judge Overton participated in the hearing and decision of this case prior to the effective date of his retirement on January 31, 1999 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401, recodifying Code § 17-116.01:1.

Filed 7/13/16 P. v. Escobar CA3 NOT TO BE PUBLISHED 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 THIRD APPELLATE DISTRICT (Sutter) ---- THE PEOPLE, C077328 Plaintiff and Respondent, (Super. Ct. No. CRF13-2337) v. ORDER MODIFYING OPINION AND DENYING GERONIMO ESCOBAR III, REHEARING [NO CHANGE IN Defendant and Appellant. JUDGMENT] THE COURT: It is ordered that the opinion filed herein on June 15, 2016, be modified as follows: 1. On page three, immediately below the heading “DISCUSSION,” insert the following: 1  I Health and Safety Code Section 11360 2. Delete footnote seven on page seven and add the following footnote in its place: The jury was instructed on the CUA defense, in relevant part, as follows: “Possession or transportation of marijuana is lawful if authorized by the [CUA]. The [CUA] allows a person to possess or transport marijuana for personal medical purposes when a physician has recommended or approved such use. The amount of marijuana possessed or transported must be reasonably related to the patient’s current medical needs. In deciding if marijuana was transported for medical purposes, also consider whether the method, timing, and distance of the transportation were reasonably related to the patient’s current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or transport marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.” During closing arguments, the prosecutor argued that defendant’s medical needs during his four-hour trip to Oroville did not require him to possess approximately one pound of marijuana. 3. On page eight, immediately before the heading “DISPOSITION,” insert the following: 2  II Sufficiency of the Evidence In his opening brief, defendant challenged the sufficiency of the evidence regarding his conviction for transportation of marijuana. He argued that the record does not contain substantial evidence demonstrating that his transportation of marijuana was not reasonably related to his current medical needs. Having concluded that remand was appropriate based on rule of retroactivity articulated in Estrada, we did not address this argument. In a petition for rehearing, defendant alerted us to our failure to specifically discuss the sufficiency of the evidence argument. We do so now, and reject the argument. As set forth above, defendant asserted an affirmative defense to the marijuana offenses based on the CUA and the jury was instructed on the defense. As applied to the preamendment version of section 11360, the CUA defense is limited to situations in which “the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient’s current medical needs.” (People v. Trippet (1997) 56 Cal.App.4th 1532, 1550-1551; People v. Wayman, supra, 189 Cal.App.4th at pp. 220, 223; People v. Wright, supra, 40 Cal.4th at p. 92, fn. 7.) A patient’s “current medical needs” is a factual question to be determined by the trier of fact. (People v. Trippet, supra, 56 Cal.App.4th at p. 1549.) Viewing the evidence in the light most favorable to the prosecution, we conclude that substantial evidence supports the jury’s verdict on the transportation of marijuana offense. (See People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290 [“ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”], italics omitted.) As discussed above, at the time of the traffic stop, defendant had a medical marijuana recommendation for possession of eight 3 ounces of medical cannabis. Defendant testified that he consumed about three to four ounces of marijuana per day, but stated that stated he could make a pound of marijuana last at least one month. Dr. Badgley testified he would recommend four pounds of dried marijuana flower per month for defendant’s pain relief, i.e., approximately two ounces a day. Under the circumstances of this case, a rational jury could have concluded beyond a reasonable doubt that defendant’s transportation of approximately one pound of marijuana on his three- to four-hour trip to Oroville was not reasonably related to his current medical needs. This modification does not change the judgment. The petition for rehearing is denied. THE COURT: BLEASE , Acting P. J. NICHOLSON , J. ROBIE , J. 4 Filed 6/15/16 P. v. Escobar CA3 (unmodified version) NOT TO BE PUBLISHED 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 THIRD APPELLATE DISTRICT (Sutter) ---- THE PEOPLE, C077328 Plaintiff and Respondent, (Super. Ct. No. CRF13-2337) v. GERONIMO ESCOBAR III, Defendant and Appellant. A jury found Geronimo Escobar III guilty of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a))1 and driving on a suspended license (Veh. Code, § 14601.1, subd. (a)). Without suspending imposition of sentence, the trial court placed defendant on three years of formal probation. On appeal, defendant contends, among other things, under In re Estrada (1965) 63 Cal.2d 740 (Estrada), the recent amendments 1 Undesignated statutory references are to the Health and Safety Code. 1 to section 11360 must be applied retroactively to require that we reverse his drug transportation conviction. We agree and reverse defendant’s drug transportation conviction and remand for possible retrial. The judgment is affirmed in all other respects. BACKGROUND At about 8:00 p.m. on September 12, 2013, defendant was stopped for speeding in Sutter County by California Highway Patrol Officer Leo Smith. A female passenger was riding in the front seat. As Officer Smith approached defendant’s vehicle, he detected a strong odor of marijuana. Officer Smith advised defendant he had been stopped for speeding and asked him where the marijuana was located. Defendant told Officer Smith the marijuana was on the backseat. He then reached into the back seat and uncovered two Ziploc bags containing approximately one pound of marijuana.2 Defendant also had $1,200 in cash in his car, which he claimed was rent money due that day. Defendant admitted ownership of the marijuana as well as a small amount of concentrated cannabis also in the vehicle. Defendant told Officer Smith he acquired the marijuana in Sacramento earlier that day in exchange for a welding job. He explained he had just left Oroville and was returning to his home in Sacramento. Defendant further explained he was authorized to use medical marijuana, and he used up to four and a quarter ounces a day, although he noted he had not consumed any marijuana on that day. Based on defendant’s stated amount of marijuana consumption, Officer Smith concluded defendant possessed more marijuana than his daily needs required. 3 As a consequence, Officer Smith seized the marijuana and concentrated cannabis. A records check revealed defendant’s license was suspended. Defendant was arrested and taken into custody. 2 One of the bags contained 218 grams of marijuana while the other bag contained 217 grams of marijuana. 3 At trial, Officer Smith testified as an expert in the field of marijuana. 2  Defendant was charged with one count of possession of concentrated cannabis (§ 11357, subd. (a)), one count of transportation of marijuana (§ 11360, subd. (a)), one count of possession of more than 28.5 grams of marijuana (§ 11357, subd. (c)), and one count of driving on a suspended license (Veh. Code, § 14601.1, subd. (a)). At trial, defendant asserted an affirmative defense to the marijuana offenses based on the Compassionate Use Act of 1996 (CUA).4 The jury found defendant guilty of transportation of marijuana (§ 11360, subd. (a)) and driving on a suspended license (Veh. Code, § 14601,1, subd. (a)). The jury acquitted defendant on the two possession counts. Without suspending imposition of sentence, the trial court placed defendant on three years of formal probation. Defendant filed a timely notice of appeal. DISCUSSION Defendant contends, under Estrada, the recent amendments to section 11360 must be applied retroactively to require that we reverse his drug transportation conviction. We agree. Among other things, section 11360 provides that any person who “transports” marijuana shall be punished by imprisonment. (§ 11360.) Courts had interpreted the word “transports” to include transport of controlled substances for personal use. (See People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v. Eastman (1993) 13 Cal.App.4th 668.) But the Legislature recently amended section 11360 to define “transport” to mean “transport for sale.” (See Assem. Bill No. 730 (2015-2016 Reg. 4 In 1996, California voters adopted Proposition 215, the CUA (§ 11362.5). The CUA “provides a defense for physician-approved possession and cultivation of marijuana.” (People v. Wright (2006) 40 Cal.4th 81, 90.) It also provides a defense “to a charge of transporting marijuana where certain conditions are met.” (Id. at p. 92.) 3 Sess.).) Those amendments took effect on January 1, 2016. (See Cal. Const., art. IV, § 8, subd. (c)(1).) The amended statute does not contain a saving clause which evinces the Legislature’s intent the amendments apply prospectively only. (See Assem. Bill No. 730.) The purpose of the amendments is to require a conviction for transportation of marijuana to include proof of intent to sell, as is currently the case for numerous other drugs. (See Sen. Rules Com., Rep. on Assem. Bill No. 730 (2015-2016 Reg. Sess.) June 10, 2015, pp. 3-4.) The amendments benefit defendant by requiring proof of an additional element—intent to sell—for a felony drug transportation conviction, and by eliminating criminal liability for drug transportation in cases involving possession for personal use. (Ibid.) The parties agree the amendments to section 11360 will take effect before the judgment against defendant becomes final. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [“ ‘[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed’ ”].) Under the present circumstances, we adhere to the well-established principle, “where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed,” if the amended statute takes effect before the judgment of conviction becomes final. (Estrada, supra, 63 Cal.2d at pp. 744, 748.) The rule articulated in Estrada applies to amendments which add to the elements of a crime or enhancement. (People v. Vinson (2011) 193 Cal.App.4th 1190, 1197-1199; People v. Todd (1994) 30 Cal.App.4th 1724, 1728-1730; People v. Figueroa (1993) 20 Cal.App.4th 65, 68 (Figueroa).) Thus, as the People concede, defendant is entitled to the benefit of the amendments to section 11360 under the rule established in Estrada. (People v. Vinson, supra, 193 Cal.App.4th at pp. 1197-1199; People v. Todd, supra, 30 Cal.App.4th at pp. 1728-1730; Figueroa, 4 supra, 20 Cal.App.4th at p. 68.) Accordingly, we will reverse the drug transportation conviction and remand for further proceedings. We reject defendant’s contention remand is inappropriate because there is insufficient evidence to prove he was transporting marijuana for purposes of sale. “Where . . . evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence. [Citation.]” (Figueroa, supra, 20 Cal.App.4th at p. 72.) Here, because the prosecution had no reason to prove defendant intended to sell marijuana under the preamendment statute, remand is appropriate. When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand. (Id. at pp. 71-72 & fn. 2.) We also reject the People’s contention it was harmless error for the trial court not to instruct the jury on the intent to sell element. That is, instruct the jury defendant could not be convicted of transporting marijuana unless it determined beyond a reasonable doubt defendant transported the marijuana with the intent to sell it. The People contend this element was established beyond a reasonable doubt because the evidence presented at trial showed defendant was engaged in illegally sharing, furnishing, or trading marijuana with a group of friends. According to the People, had the jury been instructed on the intent to sell element, it would have found the element was satisfied. We disagree. Instructional error that omits an element of the offense is subject to review under the harmless error analysis set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. (People v. Mason (2013) 218 Cal.App.4th 818, 825.) This means “we proceed to consider whether it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict.” (People v. Mil (2012) 53 Cal.4th 400, 417.) Citing Neder v. United States (1999) 527 U.S. 1 [144 L.Ed.2d 35], our Supreme Court explained: “Neder instructs us to ‘conduct a thorough examination of the record. If, at 5 the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless.’ [Citation.] On the other hand, instructional error is harmless ‘where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.’ [Citations.] Our task, then, is to determine ‘whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.’ [Citations.]” (People v. Mil, supra, at p. 417.) Here, because we cannot conclude beyond a reasonable doubt the jury verdict would have been the same had the jury been instructed on the intent to sell element, remand for further proceedings is appropriate. The record does not contain overwhelming evidence establishing defendant had the specific intent to sell marijuana. Aside from the fact defendant acquired about a pound of marijuana in exchange for a welding job, possessed $1,200 in cash, and shared and/or traded marijuana with friends, there is no evidence in the record suggesting defendant was transporting marijuana for purposes of sale.5 Further, the record contains sufficient evidence to support a contrary finding; namely, defendant possessed the marijuana for personal use. At trial, defendant asserted an affirmative defense to the marijuana offenses based on the CUA. Both defendant and Dr. Laurence Badgley testified regarding defendant’s medical need for marijuana. To control his pain from injuries sustained in a car accident, defendant testified he consumed about three to four ounces of marijuana per day in a 5 At trial, defendant testified he traded welding services for marijuana. He also testified he and a small group of friends traded “clones” or genetic seeds, and the group also “help[ed] each other out with medicine.” Defendant admitted that the group of friends he “traded marijuana back and forth [with]” is not part of a marijuana collective or dispensary. 6 variety of ways, including smoking and/or ingesting it. However, he stated he could make a pound of marijuana last at least one month. Dr. Badgley testified he would recommend four pounds of dried marijuana flower per month for defendant’s pain relief, i.e., approximately two ounces a day.6 Based on the evidence in the record, a jury instructed on the intent to sell element could have reasonably concluded that defendant transported the marijuana for personal use. The fact the jury disbelieved the CUA defense as to the transportation charge does not suggest the jury believed defendant was transporting marijuana for purposes of sale. The jury’s finding of guilt on the transportation charge merely reflected its determination defendant transported more marijuana than was reasonably related to his “current medical needs,” considering the method, timing, and distance of the transportation.7 (See People v. Wayman (2010) 189 Cal.App.4th 215, 220, 223 [in the transportation context, the CUA defense only applies to situations in which “ ‘the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient’s current medical needs’ ”; it does not provide qualified marijuana users “an unfettered right to 6 At the time of the traffic stop, defendant had a medical marijuana recommendation for possession of eight ounces of medical cannabis. The physician that provided this recommendation did not testify at trial because he died before trial commenced. At trial, Dr. Badgley opined that eight ounces of marijuana was insufficient to control defendant’s pain. 7 The jury was instructed on the CUA defense, in relevant part, as follows: “Possession or transportation of marijuana is lawful if authorized by the [CUA]. The [CUA] allows a person to possess or transport marijuana for personal medical purposes when a physician has recommended or approved such use. The amount of marijuana possessed or transported must be reasonably related to the patient’s current medical needs. In deciding if marijuana was transported for medical purposes, also consider whether the method, timing, and distance of the transportation were reasonably related to the patient’s current medical needs. . . .” During closing arguments, the prosecutor argued that defendant’s medical needs during his four-hour trip to Oroville did not require him to possess approximately one pound of marijuana. 7 take their marijuana with them wherever they go, regardless of their current medical needs”].) Given the jury’s acquittal on the possession charges, had defendant transported less marijuana on his trip to Oroville or been traveling to Oroville for an extended period of time, the jury might have reached a different conclusion on the transportation charge.8 DISPOSITION The judgment with respect to defendant’s conviction for transporting marijuana (§ 11360) is reversed and remanded for possible retrial. The judgment is affirmed in all other respects. NICHOLSON , J. We concur: BLEASE , Acting P. J. ROBIE , J. 8 Because we reverse defendant’s conviction for transportation of marijuana based on Estrada, we will not address the other arguments raised by defendant on appeal. 8 

404 F.2d 888 Ronald Lee PARSONS, Appellant,v.UNITED STATES of America, Appellee. No. 25913. United States Court of Appeals Fifth Circuit. Dec. 2, 1968. Ronald Lee Parsons pro se. Rowland K. Hazard, U.S. Atty., Balboa, Canal Zone, for appellee. Before THORNBERRY and DYER, Circuit Judges, and KEADY, District Judge. PER CURIAM: 1 Appellant Ronald Lee Parsons was convicted upon a jury verdict of grand larceny of a yacht, in violation of 6 Canal Zone Code 1342(1), and was sentenced to serve a term of five years. This appeal is from the judgement of the district court dismissing without an evidentiary hearing Parson's motion, pursuant to 28 U.S.C. 2255, to vacate sentence. We affirm. 2 Appellant's allegations that competent testimony relating to his past history of mental illness was withheld and that the court erred in its instruction to the jury are not substantiated by the record and must be rejected. His contention that court-appointed counsel was incompetent is unsupported by facts and is therefore conclusory. Moreover, the trial judge was aware of counsel's career and competence and found no merit to this contention. Appellant's contention that he was denied the right to take the stand in his own defense is squarely refuted by the affidavit of court-appointed counsel who recited that although Parsons was advised not to testify, 'he was further advised that even in the light of such advice he was free to testify or not testify according to his own judgment.' 3 With regard to the alleged denial of appeal, appellant was advised of his right of appeal and his court-appointed counsel swore that appellant expressed no desire to directly appeal the conviction. Finally, the trial court has discretion to ascertain whether a claim is substantial before granting a full evidentiary hearing, Sanders v. United States, 1963, 373 U.S. 1, 21, 83 S.Ct. 1068, 10 L.Ed.2d 148, and we cannot conclude that the trial court abused its discretion in this instance by not conducting a full evidentiary hearing. 4 Affirmed.

FILED BY CLERK IN THE COURT OF APPEALS JUN 17 2008 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO THE STATE OF ARIZONA, ) ) 2 CA-CR 2007-0202 Appellee, ) DEPARTMENT A ) v. ) OPINION ) LUIS ALBERTO MORENO-MEDRANO, ) ) Appellant. ) ) APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR-20062797 Honorable Paul Tang, Judge Honorable Stephen C. Villarreal, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Randall M. Howe and Laura P. Chiasson Tucson Attorneys for Appellee Robert J. Hirsh, Pima County Public Defender By Rose Weston Tucson Attorneys for Appellant H O W A R D, Presiding Judge. ¶1 After a jury trial, appellant Luis Moreno-Medrano was convicted of aggravated assault with a deadly weapon or dangerous instrument and attempted armed robbery, both dangerous-nature offenses. The court sentenced him to concurrent, presumptive prison terms of 7.5 years. On appeal, Moreno-Medrano claims the court erred in denying his motion to suppress a statement he had made to police, ordering him to pay attorney fees without making certain factual findings, entering a criminal restitution order with respect to the fees imposed, and considering his claim of innocence as a denial of responsibility at sentencing. Finding no error, we affirm. Facts ¶2 “We view the facts in the light most favorable to sustaining the convictions.” State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). Moreno-Medrano approached the victim, a delivery driver, who was unloading a truck outside a business. Moreno-Medrano asked if he could help unload the truck, but the victim said that company policy prohibited it. Moreno-Medrano left but returned a short time later and pointed a gun at the victim, demanding money. The victim ran to the other side of the trailer on his truck and hid. Moreno-Medrano apparently left. The victim went to a nearby restaurant and asked the manager to call the police. The police apprehended Moreno-Medrano and the victim identified him. Moreno-Medrano was convicted and now appeals. Motion to Suppress ¶3 Moreno-Medrano argues the trial court erred in denying his motion to suppress his statement to the police, contending he did not validly waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966). We review the court’s ruling for an abuse of discretion, 2 considering only the evidence presented at the suppression hearing and viewing that evidence in the light most favorable to sustaining the trial court’s ruling. See State v. Gay, 214 Ariz. 214, ¶ 30, 150 P.3d 787, 796 (App. 2007). We review de novo the court’s legal conclusions. See State v. Smith, 197 Ariz. 333, ¶ 2, 4 P.3d 388, 390 (App. 1999). ¶4 “‘Answering questions after police properly give the Miranda warnings constitutes a waiver by conduct.’” State v. Trostle, 191 Ariz. 4, 14, 951 P.2d 869, 879 (1997), quoting State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988); see also North Carolina v. Butler, 441 U.S. 369, 373 (1979). During a custodial interrogation, a detective advised Moreno-Medrano of his rights pursuant to Miranda. The detective asked Moreno- Medrano if he understood his rights. Moreno-Medrano said “yes.” Without specifically asking if Moreno-Medrano waived those rights, the detective then began asking Moreno- Medrano questions about the incident. Moreno-Medrano answered all questions without asking for counsel and without attempting to terminate the interview. ¶5 By stating that he understood his rights and then engaging in “a course of conduct indicating waiver,” Butler, 441 U.S. at 373, Moreno-Medrano validly waived his rights to remain silent and to have counsel present. See State v. Montes, 136 Ariz. 491, 495- 96, 667 P.2d 191, 195-96 (1983) (waiver by conduct where defendant indicated he understood rights, answered questions freely, did not seek counsel, and did not try to terminate questioning). The trial court therefore did not abuse its discretion in denying his motion to suppress the statement. 3 ¶6 Moreno-Medrano further argues that because the evidence shows the police department routinely fails to obtain explicit waivers and even trains officers “to affirmatively ignore any inquiry” regarding waiver, “the spirit and intent of Miranda” are not being fulfilled. He suggests we draw a distinction between inadvertent failure to obtain an explicit waiver and this officer’s deliberate failure to obtain an explicit waiver. We agree that the better practice is to obtain an explicit waiver from the suspect. But our supreme court has held, without considering the subjective intent of the officer, that an explicit waiver is not required. See Trostle, 191 Ariz. at 14, 951 P.2d at 879; see also State v. Jones, 203 Ariz. 1, ¶ 9, 49 P.3d 273, 277 (2002) (explicit statement waiving Miranda not required). We cannot disregard the decisions of our supreme court. State v. Newnom, 208 Ariz. 507, ¶ 8, 95 P.3d 950, 951 (App. 2004). Moreover, the general practices of the police department are not relevant to the inquiry of whether, on the facts of this case, the defendant intelligently and knowingly waived his rights by conduct. See Montes, 136 Ariz. at 495, 667 P.2d at 195 (waiver determination “focuses on the particular facts and circumstances surrounding a case”). Imposition of Fees ¶7 Moreno-Medrano also argues the trial court committed fundamental error when it ordered him to reimburse Pima County $400 in attorney fees and pay a $25 indigent administrative assessment without first ascertaining his financial ability to pay these amounts. He did not, however, object to the imposition of fees at arraignment or at sentencing. When 4 a defendant does not object below to an alleged error, we review solely for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is “‘error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.’” Id., quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). “To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice.” Id. ¶ 20. ¶8 The fees at issue were imposed pursuant to A.R.S. § 11-584 and Rule 6.7(d), Ariz. R. Crim. P. Section 11-584(B)(1) authorizes the court to assess defendants “an indigent administrative assessment of not more than twenty-five dollars.” Section 11- 584(B)(3) permits the court to require a defendant to “repay to the county a reasonable amount to reimburse the county for the cost of the defendant’s legal defense.” Section 11- 584(C) provides that when “determining the amount and method of payment[,] the court shall take into account the financial resources of the defendant and the nature of the burden that the payment will impose.” Finally, Rule 6.7(d) provides that, if the court determines the defendant has the “financial resources which enable him or her to offset in part the costs of the legal services to be provided, the court shall” require the defendant to pay “such amount as [the court] finds he or she is able to pay without incurring substantial hardship.” 5 ¶9 Before imposing fees pursuant to § 11-584 and Rule 6.7(d), the court is required to make specific factual findings that the defendant has the ability to pay the fees imposed and that the fees will not cause a substantial hardship. State v. Taylor, 216 Ariz. 327, ¶ 25, 166 P.3d 118, 125 (App. 2007). The court must also make a finding regarding the actual cost of the legal services provided. See id. However, if a defendant fails to pay the assessed fees, counsel cannot withdraw and the defendant will not face contempt proceedings. Ariz. R. Crim. P. 6.7(d); see also Espinoza v. Superior Court, 166 Ariz. 557, 561-62, 804 P.2d 90, 94-95 (1991). Rather, the order of fees may only be enforced as a civil judgment. See Ariz. R. Crim. P. 6.7(d); Espinoza, 166 Ariz. at 562, 804 P.2d at 95. ¶10 The court imposed these fees at Moreno-Medrano’s arraignment and reconfirmed the obligation at sentencing. It is unclear from the record whether the court had all of Moreno-Medrano’s financial information available to it at the arraignment, but it did not make express findings regarding Moreno-Medrano’s financial status at either hearing. ¶11 Division One of this court has held that the failure to make the required findings before imposing attorney fees constituted fundamental error. See State v. Lopez, 175 Ariz. 79, 82, 853 P.2d 1126, 1129 (App. 1993). The court predicated its conclusion in Lopez on the observation that the right to counsel is fundamental under both the United States and Arizona Constitutions. Id. It then concluded that, therefore, the failure to make the findings provided for in Rule 6.7(d) was fundamental error. Lopez, 175 Ariz. at 82, 853 P.2d at 1129. 6 ¶12 We cannot agree that the fundamental nature of the right to counsel compels the conclusion that the court’s failure to make the requisite findings regarding reimbursement constitutes fundamental error. The Lopez court cited Espinoza for its holding that the contribution provisions in § 11-584 and Rule 6.7(d) do not violate a defendant’s fundamental right to representation. Lopez, 175 Ariz. at 82, 853 P.2d at 1129. Espinoza so held because “[c]ounsel cannot withdraw, and the defendant does not face potential imprisonment for contempt for failing to comply with the order.” 166 Ariz. at 561-62, 804 P.2d at 94-95. Thus, a defendant’s fundamental right to counsel remains intact regardless of the reimbursement order or the defendant’s failure to comply with it. ¶13 Moreover, Lopez preceded Henderson and its clarification of the fundamental error standard. And failing to make the required findings cannot fairly be characterized as one of those “rare” circumstances that deprives the defendant of a right essential to his defense or otherwise renders it impossible for him to have had a fair trial. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. After Henderson, we conclude this part of Lopez is no longer correct and find that the imposition of the fees without the findings was not fundamental error. ¶14 We also conclude that Moreno-Medrano has failed to show that the trial court did not consider his financial ability in imposing these fees and thereby committed fundamental error. Both a report prepared by pretrial services before his arraignment and the presentence report contained information about Moreno-Medrano’s financial 7 circumstances. Nothing in the record indicates that the court failed to consider this information. See State v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996) (“Judges are presumed to know and follow the law and to consider all relevant sentencing information before them.”). Moreover, Moreno-Medrano has not produced any authority to suggest an alleged error in considering his ability to pay is fundamental. See Henderson, 210 Ariz. 561, ¶¶ 22, 24, 115 P.3d at 608 (appellant has burden to show error and that error is fundamental). ¶15 Moreno-Medrano also appears to argue it would have been fundamental error to impose the fees even if the court had made the requisite findings. He claims that information in the presentence report shows he did not have the financial ability to contribute to the cost of his defense and cites State v. Torres-Soto, 187 Ariz. 144, 146, 927 P.2d 804, 806 (App. 1996), for the proposition that “overriding considerations about integrity of [the] justice system” render the imposition of attorney fees fundamental error when a defendant clearly cannot afford such fees. But the basis for finding fundamental error in Torres-Soto was the imposition of $85,500 in surcharges pursuant to A.R.S. §§ 12- 116.01 and 12-116.02, despite information in the presentence report suggesting the defendant was a “pauper.” 187 Ariz. at 145-46, 927 P.2d at 805-06. The court essentially concluded that the trial court had abused its discretion in imposing the surcharges and that the abuse was so egregious that it rose to the level of fundamental error. See id. The court in Torres-Soto specifically noted, however, that in the absence of fundamental error 8 involving the $85,500 in surcharges, the court would not have addressed any alleged error with respect to the “unobjected-to imposition of [a $375] attorneys’ fee[],” despite the lack of findings below. Id. at 145, 927 P.2d at 805, citing Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (errors in imposing attorney fees not raised at trial waived on appeal). Here, Moreno-Medrano did not object to the fees or the failure to make findings and was assessed no more than $425. The “overriding considerations” present in Torres- Soto are simply not present here. The trial court therefore did not commit fundamental error in imposing the fees. Criminal Restitution Order ¶16 Moreno-Medrano further argues the trial court erred in reducing the $400 attorney fee and $25 indigent administrative assessment ordered under A.R.S. § 11-584(B) to a judgment and entering a criminal restitution order at sentencing. He contends that A.R.S. § 13-805 only permits those fees to be reduced to a criminal restitution order at the completion of a defendant’s sentence or term of probation and that the error alleged here will result in immediate accrual of interest on his obligation under § 13-805(C). Because Moreno-Medrano failed to object below, we again review solely for fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. Moreno-Medrano bears the burden of demonstrating that error occurred, that it was fundamental, and that it prejudiced him. See id. ¶¶ 19-20, 23. 9 ¶17 Moreno-Medrano does not argue the alleged error was fundamental. See State v. Ramsey, 211 Ariz. 529, n.6, 124 P.3d 756, 766 n.6 (App. 2005) (noting defendant’s failure to argue fundamental error); State v. Cons, 208 Ariz. 409, ¶ 3, 94 P.3d 609, 611 (App. 2004) (same); see also Ariz. R. Crim. P. 31.13(c)(1)(vi). That argument is therefore waived. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). ¶18 Additionally, we have held in a different context that fees ordered under § 11- 584(B) “are not punitive in nature or related to other court-imposed penalties.” State v. Connolly, 216 Ariz. 132, ¶ 3, 163 P.3d 1082, 1082-83 (App. 2007); see also § 13-805(C) (criminal restitution order continues in effect after sentence is served). Thus, even if Moreno-Medrano is correct that the trial court erred, we cannot see how reducing non- punitive fees the court was authorized to impose to a criminal restitution order could result in an illegal sentence. See Ariz. R. Crim. P. 26.1(b) (defining sentence as “the pronouncement by the court of the penalty imposed upon the defendant after a judgment of guilty”) (emphasis added). Nor could it otherwise be construed as “‘error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.’” Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). Accordingly, absent any argument or authority that the alleged error here was fundamental, Moreno-Medrano cannot sustain his burden in a fundamental error analysis. 10  Insistence on Innocence at Sentencing ¶19 Moreno-Medrano last contends that, in sentencing him, the trial court improperly adopted the prosecutor’s position that Moreno-Medrano’s insistence on his innocence was a factor supporting a presumptive sentence. Because he failed to raise this issue below, we review solely for fundamental error. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607; see also State v. Ruggiero, 211 Ariz. 262, n.6, 120 P.3d 690, 697 n.6 (App. 2005). ¶20 A defendant’s refusal “to publicly admit his guilt . . . is irrelevant to a sentencing determination.” State v. Carriger, 143 Ariz. 142, 162, 692 P.2d 991, 1011 (1984). Because it is improper to do so, we presume the court did not consider Moreno- Medrano’s insistence on his innocence unless the record indicates otherwise. See State v. Phillips, 202 Ariz. 427, ¶ 51, 46 P.3d 1048, 1059 (2002) (presuming trial court considered only proper evidence at sentencing). ¶21 At sentencing, the trial court stated: Mr. Moreno-Medrano, I have considered your letter, as I said, even though to the presentence report author you still maintain your innocence. And you’re entitled to do so, but I have considered the fact that you have indicated, if you will, a sense of remorse with respect to the situation. And that was clearly evident in your letter. Although the court mentioned that Moreno-Medrano maintained his innocence and had the right to do so, it did not state that it considered Moreno-Medrano’s insistence on his innocence as a factor in sentencing him. Indeed, the statement suggests the court considered 11 Moreno-Medrano’s remorse, not his insistence on his innocence. Nothing in the record contradicts the presumption that the court considered only evidence properly related to the sentencing decision. See Phillips, 202 Ariz. 427, ¶ 51, 46 P.3d at 1059. We therefore find no error, fundamental or otherwise. Conclusion ¶22 Based on the foregoing, Moreno-Medrano’s convictions and sentences are affirmed. ____________________________________ JOSEPH W. HOWARD, Presiding Judge CONCURRING: ____________________________________ JOHN PELANDER, Chief Judge ____________________________________ J. WILLIAM BRAMMER, JR., Judge 12 

FILED United States Court of Appeals Tenth Circuit August 19, 2016 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 16-8030 PEDRO MORENO, (D.C. No. 2:02-CR-00125-NDF-2) (D. Wyo.) Defendant - Appellant. ORDER AND JUDGMENT* Before BRISCOE, GORSUCH and McHUGH, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument. Defendant Pedro Moreno, appearing pro se, appeals from the district court’s denial of his motion to correct sentence pursuant to 18 U.S.C. § 3582(c)(2). Exercising * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. jurisdiction pursuant to 28 U.S.C. § 1291, we vacate the district court’s order denying the motion and remand for entry of an order dismissing the motion for lack of jurisdiction. I In July 2002, a federal grand jury returned an indictment charging Moreno and seven other individuals with conspiracy to distribute, and to possess with intent to distribute, over 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). On December 16, 2002, Moreno entered into a written plea agreement with the government pursuant to Fed. R. Crim. P. 11(e)(1)(C).1 The plea agreement stated, in pertinent part, that “both the Defendant and the United States w[ould] recommend that the court sentence the Defendant to a 20 year period of imprisonment, [to be followed by] five years of supervised release,” and that “if the court d[id] not accept this binding plea agreement recommendation, [Moreno] w[ould] be allowed to withdraw his plea of guilty.” ROA, Vol. II at 210. The district court accepted the plea agreement and allowed Moreno to formally enter a guilty plea that same day. The probation office subsequently prepared a presentence investigation report (PSR). The PSR calculated Moreno’s advisory Guidelines sentencing range to be 325 to 405 months based upon a total offense level of 41 and a criminal history category of I. Id. at 296. Neither party filed objections to the PSR. On April 21, 2003, the district court, consistent with the parties’ plea agreement, sentenced Moreno to a term of imprisonment of 240 months, to be followed by a five- 1 That Rule has since been recodified as Rule 11(c)(1)(C). -2- year term of supervised release. In doing so, the district court departed downward three levels from the total offense level calculated in the PSR, i.e., from a total offense level of 41 to 38, in order to arrive at an advisory Guidelines sentencing range that encompassed the 240-month sentence called for by the plea agreement. II On March 7, 2016, Moreno filed a pro se motion to reduce his sentence pursuant to § 3582(c)(2). Id., Vol. I at 76. Moreno argued in his motion that he was entitled to a reduced sentence in light of the United States Sentencing Commission’s issuance of Amendment 782. Amendment 782 reduces by two the base offense level provided by U.S.S.G. § 2D1.1 for most quantities of drugs, and applies retroactively to convictions based on the earlier version of § 2D1.1. See U.S.S.G. app. C, amend. 782. The district court denied Moreno’s motion. In doing so, the district court recounted its original sentencing calculations, which it adopted from the PSR, and its three-level downward departure from the total offense level in order to “allow Moreno to fall into a guideline range encompassing a sentence of 240 months.” Id. at 85-86. The district court in turn stated that “[t]hese facts establish [that it] based Moreno’s sentence on the [terms of the] Plea Agreement, not on the drug guideline calculation.” Id. at 86. Further, the district court concluded that “even if [it] were to take a two level reduction from Moreno’s original [total offense level] of 41, with a Criminal History Category I, Moreno’s guideline range would be 262-327 months, a considerably longer sentence than he received under the Plea Agreement.” Id. -3-  Moreno filed a motion for reconsideration, arguing that the district court failed to recognize that “the plea agreement was based on a base [offense] level of 38 after it applied USSG 3E1.1(a) and (b) Exceptance [sic] of Responsibility.” Id. at 88. Moreno further argued that “[b]y claiming [his] new base [offense] level would be 39, the [district court] ignore[d] the fact [Moreno] would still be entitled to a 3-point reduction under USSG 3E1.1(a)-(b).” Id. “Taking away the 3-point reduction,” Moreno argued, “would be basically a new sentencing hearing because the plea agreement would be void, which it is not.” Id. The district court denied Moreno’s motion for reconsideration. As in its original order denying Moreno’s motion, the district court began by outlining in detail its Sentencing Guidelines calculations: Defendant’s base offense level was 38, he received a two (2) level enhancement for the possession of a deadly weapon, and a four (4) level enhancement based on his role as organizer leader in the conspiracy. At that point Defendant’s adjusted offense level was 44. Defendant then received a three (3) level reduction for acceptance of responsibility for a total offense level of 41, Criminal History Category I, and a corresponding guideline range of 324 to 405 months (PSR at ¶ 67). To be clear this includes the three level reduction for acceptance of responsibility. Id. at 94-95. Therefore, the district court reiterated, “[t]o allow Moreno to get a sentence of 240 months, [it] was required to depart three levels from Moreno’s total offense level of 41, to an offense level 38.” Id. at 95. “This reduction,” the district court stated, “was taken to allow Moreno to fall into a guideline range encompassing a sentence of 240 months as required under the plea agreement.” Id. Thus, the district court concluded, -4- “[t]hese facts establish [that it] based Moreno’s sentence on the Plea Agreement, not on the drug guideline calculation.” Id. Shortly after the district court issued its order denying Moreno’s motion for reconsideration, Moreno filed a notice of appeal. III On appeal, Moreno challenges the district court’s order denying his motion to correct sentence. “Because he argues without the aid of counsel, we have read his pleadings liberally.” United States v. Graham, 704 F.3d 1275, 1277 (10th Cir. 2013). “And, because the scope of a district court’s authority under § 3582(c)(2) is a question of law, our review of the district court’s order[s] is de novo.” Id. A term of imprisonment, once imposed, cannot be modified by a district court in the absence of express statutory authority to do so. Id. Section 3582(c)(2) serves as one such grant of authority. Id. It states: [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). In Freeman v. United States, 564 U.S. 522, 525 (2011), the Supreme Court addressed the question of “whether defendants who enter into plea agreements” pursuant -5- to Fed. R. Crim. P. 11(c)(1)(C) “that recommend a particular sentence as a condition of the guilty plea may be eligible for relief under § 3582(c)(2).” As we noted in Graham, this question “proved fractious for the Freeman Court,” with the plurality and the dissent each garnering four votes. 704 F.3d at 1277. “Justice Sotomayor’s concurrence,” which “charted a middle ground between the plurality and the dissent, . . . is the narrowest grounds of decision and [thus] represents the Court’s holding.” Id. at 1277-78. In the context of a Rule 11(c)(1)(C) plea agreement, Justice Sotomayor concluded, “it is the binding plea agreement that is the foundation for the term of imprisonment to which the defendant is sentenced.” 564 U.S. at 535. That is because, she explained, “[a]t the moment of sentencing, the court simply implements the terms of the agreement it has already accepted.” Id. at 535-36. Thus, she concluded, “the term of imprisonment imposed pursuant to a [Rule 11(c)(1)(C)] agreement is, for purposes of § 3582(c)(2), ‘based on’ the agreement itself.” Id. at 536. “To hold otherwise,” she emphasized, “would be to contravene the very purpose of [Rule 11(c)(1)(C)] agreements—to bind the district court and allow the Government and the defendant to determine what sentence he will receive.” Id. Justice Sotomayor cautioned, however, that “[t]hese conclusions . . . do not mean that a term of imprisonment imposed pursuant to a [Rule 11(c)(1)(C)] agreement can never be reduced under § 3582(c)(2).” Id. at 538 (emphasis in original). “[S]ome [Rule 11(c)(1)(C)] agreements,” she noted, “may call for the defendant to be sentenced within a particular Guidelines sentencing range.” Id. “In such cases, the district court’s -6- acceptance of the agreement obligates the court to sentence the defendant accordingly, and there can be no doubt that the term of imprisonment the court imposes is ‘based on’ the agreed-upon sentencing range within the meaning of § 3582(c)(2).” Id. “Similarly,” Justice Sotomayor noted, “a plea agreement might provide for a specific term of imprisonment—such as a number of months—but also make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty.” Id. at 539. “As long as that sentencing range is evident from the agreement itself,” Justice Sotomayor concluded, “for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is ‘based on’ that range.” Id. In either of these scenarios, Justice Sotomayor emphasized, “the defendant is eligible for sentence reduction” pursuant to § 3582(c)(2) “[i]f th[e] [applicable] Guidelines range is subsequently lowered by the Sentencing Commission.” Id. at 538-39. All of which leads to the question of what Moreno’s plea agreement stated with respect to sentencing. The plea agreement did not call for Moreno “to be sentenced within a particular Guidelines sentencing range.” Id. at 538. Instead, it stated “that both [Moreno] and the United States w[ould] recommend that the [district] court sentence [Moreno] to a 20 year period of imprisonment” and “five years of supervised release.” ROA, Vol. II at 210. And, although the plea agreement made fleeting and unnecessary references to the Sentencing Guidelines—specifically to the use of relevant conduct under U.S.S.G. § 1B1.3 and to Moreno’s entitlement to a three-level reduction pursuant to -7- U.S.S.G. § 3E1.1 for acceptance of responsibility—it did not “make clear that the basis for the specified term [wa]s a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty.” 564 U.S. at 539. Indeed, the PSR’s sentencing calculations, which were ultimately adopted by the district court without objection by either party, establish that the 20-year sentence specified in the plea agreement could not have been the simple product of routine Guidelines calculations. This is confirmed by the district court’s statements, both at the time of sentencing and more recently in denying Moreno’s motions, that it had to depart downward three offense levels in order to reach an advisory Guidelines sentencing range that would accommodate the parties’ proposed sentence.2 In light of these facts, we agree with the district court that Amendment 782 did not render Moreno eligible for a sentence reduction pursuant to § 3582(c)(2). The only disagreement we have with the district court’s ruling is that, rather than denying Moreno’s motion to correct sentence, the district court should have dismissed it for lack of jurisdiction. That is because § 3582(c)(2) grants jurisdiction to a district court only “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 28 U.S.C. § 3582(c)(2). Consequently, we must vacate the district court’s order and remand with directions to enter an order dismissing Moreno’s motion for lack 2 Because the Sentencing Guidelines are advisory in nature, United States v. Booker, 543 U.S. 220, 245 (2005), it was unnecessary in our view for the district court to depart downward in order to arrive at an advisory Guidelines sentencing range that would accommodate the stipulated sentence set forth in the plea agreement. -8- of jurisdiction. IV Moreno’s request for oral argument is DENIED. The district court’s order denying Moreno’s motion to correct sentence pursuant to 18 U.S.C. § 3582(c)(2) is VACATED and the case REMANDED to the district court with directions to enter an order dismissing the motion for lack of jurisdiction. Entered for the Court Mary Beck Briscoe Circuit Judge -9- 

J-S22036-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MARSHALL L. THOMPSON : : Appellant : No. 677 EDA 2017 Appeal from the PCRA Order February 21, 2017 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0604141-2004 BEFORE: BENDER, P.J.E., STABILE, J., and PLATT*, J. MEMORANDUM BY PLATT, J.: FILED JUNE 26, 2018 Appellant, Marshall L. Thompson, appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. Counsel for Appellant has filed a motion to withdraw from representation and an Anders brief.1 We grant counsel’s petition to withdraw, and affirm the order of the PCRA court. We take the following relevant facts and procedural history from the trial court’s September 20, 2017 opinion and our independent review of the ____________________________________________ 1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), instead of a Turner/Finley no-merit letter, which is the appropriate filing in the PCRA context. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, “[b]ecause an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citation omitted). ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S22036-18 certified record. On September 18, 2006, a jury found Appellant guilty of robbery and criminal conspiracy to commit robbery. The charges stem from Appellant’s armed robbery of a liquor store with his co-defendant in May 2004. On November 3, 2006, the trial court sentenced Appellant to an aggregate mandatory minimum term of not less than ten nor more than twenty years’ incarceration.2 This Court affirmed the judgment of sentence on July 15, 2008. Appellant did not file a petition for allowance of appeal with our Supreme Court. On December 19, 2011, Appellant filed a pro se PCRA petition. Appointed counsel filed an amended petition on June 27, 2016, arguing that Appellant’s mandatory minimum sentence is illegal. The PCRA court issued notice of its intent to dismiss the petition as untimely on February 1, 2017, see Pa.R.Crim.P. 907(1), and its order dismissing the petition on February 21, 2017. Appellant timely appealed.3 He filed a timely, court-ordered concise statement of errors complained of on appeal on April 13, 2017, and the PCRA court entered an opinion on September 20, 2017. See Pa.R.A.P. 1925. Counsel filed his motion to withdraw from representation and Anders brief on November 26, 2017. ____________________________________________ 2The trial court sentenced Appellant pursuant to 42 Pa.C.S.A. § 9714(a)(1), as a second strike offender. (See PCRA Court Opinion, 9/20/17, at 2 n.2, 5; Anders Brief, at 7, 18; Commonwealth’s Brief, at 3 n.1). 3 Appellant filed his notice of appeal prior to the court’s entry of its final order dismissing the petition. Although the notice was premature when filed, we will regard this appeal as timely. See Pa.R.A.P. 905(a)(5). -2- J-S22036-18 Counsel petitioning to withdraw from PCRA representation must proceed . . . under Turner, supra and Finley, supra and . . . must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel. Where counsel submits a petition and no-merit letter that . . . satisfy the technical demands of Turner/Finley, the court— trial court or this Court—must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation omitted). Upon our review of counsel’s motion to withdraw and the appellate brief submitted on Appellant’s behalf, we conclude that counsel has substantially complied with the procedural requirements of Turner and Finley. Therefore, we must proceed with our independent review of this case. See Walters, supra at 591. The Anders brief raises the following issues for our review: [1.] Whether there is anything in the record that might arguably support the appeal that obviates a conclusion that the appeal is frivolous? [2.] Whether the court erred when it dismissed the PCRA petition because the Appellant is entitled to retroactive application of the prohibition of mandatory sentences pursuant to 42 Pa.C.S.A. -3- J-S22036-18 Section 9545(b)(1)(iii) and should be resentenced consistent with the current state of the law? (Anders Brief, at 6) (unnecessary capitalization omitted). We begin by addressing the timeliness of Appellant’s petition. . . . [A] PCRA petition, including a second or subsequent petition, must be filed within one year of the date that judgment becomes final. A judgment becomes final for purposes of the PCRA at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. It is well-settled that the PCRA’s time restrictions are jurisdictional in nature. As such, this statutory time-bar implicates the court’s very power to adjudicate a controversy and prohibits a court from extending filing periods except as the statute permits. Accordingly, the period for filing a PCRA petition is not subject to the doctrine of equitable tolling; instead, the time for filing a PCRA petition can be extended only by operation of one of the statutorily enumerated exceptions to the PCRA time-bar. The exceptions to the PCRA time-bar are found in Section 9545(b)(1)(i)–(iii) . . . and it is the petitioner’s burden to allege and prove that one of the timeliness exceptions applies. Whether a petitioner has carried his burden is a threshold inquiry that must be resolved prior to considering the merits of any claim. . . . Commonwealth v. Robinson, 139 A.3d 178, 185-86 (Pa. 2016) (quotation marks and citations omitted). In the instant case, Appellant’s judgment of sentence became final on August 14, 2008, when his time to file a petition for allowance of appeal with our Supreme Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had until August 14, 2009, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on December 19, 2011, it is untimely on its face, and the PCRA court -4- J-S22036-18 lacked jurisdiction to review it unless he pleaded and proved one of the statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Section 9545 of the PCRA provides only three limited exceptions that allow for review of an untimely PCRA petition: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. Id. Any petition invoking an exception must “be filed within 60 days of the date the claim could have been presented.” Id. at § 9545(b)(2). “If the petition is untimely and the petitioner has not pled and proven an exception, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition.” Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal denied, 170 A.3d 1007 (Pa. 2017) (citation omitted). Here, Appellant invokes the benefit of section 9545(b)(1)(iii) by arguing that his mandatory minimum sentence is illegal, based on the United States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 -5- J-S22036-18 (2013).4 (See Anders Brief, at 6, 13, 15). However, this claim does not allow him to circumvent the PCRA’s timeliness requirements. It is well settled that, “in order for this Court to review a legality of sentence claim, there must be a basis for our jurisdiction to engage in such review. . . . [T]hough not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised . . . in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citations and internal quotation marks omitted). Our Supreme Court has addressed the retroactive effect of Alleyne, and has expressly held “that Alleyne does not apply retroactively to cases pending on collateral review[.]” Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). Moreover, because “[s]ection 9714 increases mandatory minimum sentences based on prior convictions[,] [it] is not unconstitutional under Alleyne.” Reid, supra at 785 (citations omitted). Therefore, Appellant’s claims based on Alleyne fail. Because Appellant has not met his burden of proving that his untimely PCRA petition fits within one of the three exceptions to the PCRA’s time-bar, we affirm the order of the PCRA court. ____________________________________________ 4 “In Alleyne, the Supreme Court of the United States held that the Sixth Amendment requires that any fact—other than a prior conviction—that increases a mandatory minimum sentence for an offense must be submitted to the jury and proven beyond a reasonable doubt. Importantly, Alleyne did not overturn prior precedent that prior convictions are sentencing factors and not elements of offenses.” Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (citations omitted; emphasis added). -6- J-S22036-18 Petition to withdraw granted. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/26/18 -7- 

21 Wn. App. 430 (1978) 585 P.2d 481 THE STATE OF WASHINGTON, Appellant, v. CARLOS MORENO, Respondent. No. 2537-3. The Court of Appeals of Washington, Division Three. October 5, 1978. *431 Donald C. Brockett, Prosecuting Attorney, and Terence M. Ryan, Deputy, for appellant. Patrick K. Stiley, for respondent. GREEN, J. Carlos Moreno was charged with possession of cocaine, a controlled substance. The trial court granted a motion by Mr. Moreno to suppress the cocaine and dismissed the charge. The State appeals. The basic issue is whether the use of the cocaine in evidence would violate Mr. Moreno's Fifth Amendment privilege against self-incrimination. On the morning of June 3, 1977, Detective Johnson of the Spokane Police Department received a telephone tip from an informant who insisted on remaining anonymous. The informant told him that a Mexican named Carlos would arrive at the Spokane airport around 12:45 p.m. that day on a flight from Los Angeles and that he would be carrying 3 ounces of cocaine. The caller also described the physical appearance of Carlos. On the basis of this telephone call alone, Detective Johnson and Lt. McGougan went to the airport. Lieutenant McGougan positioned himself so that he could observe the passengers deplaning from the Los Angeles flight, while Detective Johnson stationed himself in the lobby of the airport terminal. Lieutenant McGougan followed the first Mexican male to leave the plane. He testified that this person, later identified as Mr. Moreno, turned and saw him and then quickened his pace. The police lieutenant caught up with him just outside the terminal doors where he stopped him by placing a hand on his shoulder. Lieutenant McGougan identified himself and asked Mr. Moreno for identification. A driver's license was produced identifying him as Carlos Moreno. *432 At this point, the testimony of Mr. Moreno and the police officers diverges. Lt. McGougan testified that he asked Mr. Moreno to return with him to the airport security office and Mr. Moreno agreed to do so. He stated that he may have touched Mr. Moreno in the small of the back in order to guide him along the way. Detective Johnson joined them as they reentered the airport terminal. He testified that he also guided Mr. Moreno with his hand. To the contrary, Mr. Moreno testified that Lt. McGougan told him, "Come with me" and then put a finger through one of his belt loops and walked with him to the security office. The security office in which Mr. Moreno was questioned is a room with dimensions of approximately 5 feet by 10 feet. Mr. Moreno sat down, while Lt. McGougan stood in front of him and Detective Johnson stood by the door. Lieutenant McGougan stated that he asked Mr. Moreno, "Do you have something you shouldn't?" He responded, "What?" and the lieutenant put his finger to his nose and said, "Snorting stuff." Mr. Moreno responded by producing from his person a packet containing three baggies of cocaine. Lieutenant McGougan immediately arrested him and then, for the first time, advised him of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974 (1966), holds that the prosecution may not use statements of the defendant stemming from a custodial interrogation unless it is demonstrated that procedural safeguards were employed to secure the defendant's privilege against self-incrimination, i.e., the well-known Miranda warnings. The State contends that Miranda is inapplicable to the present case. It argues, alternatively, that (1) Mr. Moreno's act in handing over the cocaine was not a statement, and therefore, was not within the protection afforded by the Fifth Amendment; (2) if Mr. Moreno's act is considered testimonial in nature, police warnings were unnecessary because he was not in custody but, instead, was merely detained as part of an investigative *433 stop; and (3) if Mr. Moreno is found to have been in custody, his arrest was supported by probable cause, and the cocaine, which would have been discovered in a valid search pursuant to the arrest, is admissible. [1] First, we consider the assertion that Mr. Moreno's production of the cocaine was not protected by the Fifth Amendment. In State v. Dennis, 16 Wn. App. 417, 558 P.2d 297 (1976), the court suppressed evidence of cocaine which was produced by the defendant from his refrigerator after a police officer entered his home, stationed himself near the kitchen door, and stated that voluntary production of the evidence would save him the trouble of a search under an outstanding warrant. In Dennis, the State argued that the production of the cocaine was nontestimonial. The court rejected this argument, noting: This act served more graphically than words to convey the incriminating fact that he knew of the presence and precise location within his home of the contraband substance. State v. Dennis, supra at 423. The court distinguished those cases which hold that the giving of blood samples or handwriting or voice exemplars are not protected by the Fifth Amendment. According to Dennis, such acts necessitate the consideration of extraneous factors such as comparison and identification in order to prove guilt, while the defendant's production of a controlled substance, standing alone, is incriminating and, therefore, testimonial. We find the Dennis rationale persuasive. Thus, we hold that Mr. Moreno's production of the cocaine, like that of the defendant in Dennis, was testimonial in nature. [2] Second, this court recognizes that a police officer may stop a person suspected of committing a crime if the stop is based on a well-founded suspicion not amounting to probable cause and if the stop is conducted in a reasonable manner in light of the circumstances of the particular case. Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); State v. Clark, 13 Wn. App. 21, 533 P.2d 387 (1975). *434 An anonymous tip, when corroborated by an officer's independent investigation or observation, is sufficient to justify an investigative stop. People v. Superior Court, 2 Cal. App.3d 197, 82 Cal. Rptr. 463 (1970); People v. Kinlock, 55 App. Div.2d 627, 389 N.Y.S.2d 399 (1976). See State v. Lesnick, 84 Wn.2d 940, 530 P.2d 243 (1975). Here, the tip was corroborated not only by Mr. Moreno's presence at the airport at the predicted time, but also by his behavior when he realized that Lt. McGougan was following him. Because the crime involved was serious and one that poses a threat to society, the officer was justified in stopping Mr. Moreno on less corroboration than might otherwise be required. See State v. Lesnick, supra at 944-45. However, while an officer may stop a person on the basis of a well-founded suspicion and request that the suspect identify himself and explain his activities, State v. Gluck, 83 Wn.2d 424, 426, 518 P.2d 703 (1974), the officer cannot proceed with specific questions designed to elicit incriminating statements without being adjudged to have made a formal arrest. See also United States v. Richards, 500 F.2d 1025, 1029 (9th Cir.1974); and United States v. Van Lewis, 409 F. Supp. 535, 545 (E.D. Mich. 1976). Here, Lt. McGougan's questioning went beyond a general request that the defendant explain his activity, i.e., his presence in the airport, what he was there for. Rather, Lt. McGougan's suspicions had focused on the defendant and his questions were designed to elicit incriminating statements. This is precisely the situation to which the Miranda warnings are designed to apply.[1] Oregon v. Mathiason, 429 U.S. 492, 50 L.Ed.2d 714, 97 S.Ct. 711 (1977), relied upon by the State, is not controlling here. There, the court held that police questioning of a *435 defendant in a police station concerning a burglary did not amount to custodial interrogation within the meaning of the Miranda rule. However, in Mathiason the defendant voluntarily went to the police station, where he was immediately informed that he was not under arrest. Mathiason was recently distinguished in United States v. DiGiacomo, 23 Crim. L. Rptr. 2398 (10th Cir. July 7, 1978). In DiGiacomo, the defendant had been stopped by federal agents, told that he was suspected of passing counterfeit money, and advised that he could choose between immediate arrest and "voluntary" appearance at the Secret Service office the following morning. Under those circumstances, the court found that the defendant was in custody and that the officers should have advised him of his constitutional rights. In the present case, nothing was said about arrest. In fact, the size of the security office and the position of Detective Johnson, who stood in front of him, intimated to Mr. Moreno that he was not free to leave. Thus, the interrogation occurred in a custodial setting and the specific questioning went beyond the scope of questioning authorized for an investigative stop. Finally, we are not persuaded by the State's contention that probable cause existed warranting a belief that Mr. Moreno had committed a crime and, therefore, he was validly under arrest at the time he handed over the cocaine. In determining whether an informant's tip constitutes probable cause for arrest, we are guided by the constitutional criteria contained in Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964). Aguilar adopted a "two-pronged test" which must be satisfied before a warrant may issue. Spinelli v. United States, 393 U.S. 410, 417 n. 5, 21 L.Ed.2d 637, 89 S.Ct. 584 (1969), extended the Aguilar test to warrantless searches. This test was described in State v. Chatmon, 9 Wn. App. 741, 745, 515 P.2d 530 (1973): Essentially, in a case such as this, the test requires that [1] there appear some underlying circumstances from which the informant concluded that the contraband was *436 where he claimed it to be, and [2] some further circumstances from which the officer could conclude that the informant was "reliable." Aguilar v. Texas, 378 U.S. at 114. See also Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584 (1969). In discussing the first prong of the test, the court in State v. Chatmon, supra at 745, stated that: Where an informant supplies information that a suspect is in possession of contraband, and accompanies this account with a wealth of collateral detail which describes the suspect and his movements, an officer who by his observations corroborates the collateral detail may reasonably infer that the information about the crime itself was gained in a reliable way. Here, Aguilar's first prong is satisfied by Lt. McGougan's observation that the defendant matched the description given by the informant and was at the airport deplaning from a Los Angeles flight as the informant had predicted. [3] However, the State must also satisfy the second prong of the Aguilar test by demonstrating that the informant himself is reliable. In Chatmon, at page 746, the court noted that, standing alone, information supplied by an anonymous informant (as opposed to one known by the police but merely unidentified) will not usually create probable cause. An officer's subsequent observations which merely confirm the suspect's description and movements as given by the informant do not raise an inference that the law is being violated. However, the court suggests that the reliability of an anonymous informant could be established by a description of the informant, his purpose for being at the locus of the crime, and the reason for his desire to remain anonymous. State v. Chatmon, supra at 748. Here, probable cause for arrest did not exist because the informant's reliability was not established. The fact that Mr. Moreno arrived on the flight does not create an inference that he has committed the crime alleged by the informant. While Mr. Moreno appeared to increase his pace when he noticed that he was being followed, thus creating a *437 well-founded suspicion in Lt. McGougan sufficient to justify an investigative stop, such act does not warrant an assumption that an offense has been committed. Therefore, the State's final contention must fail. Affirmed. McINTURFF and ROE, JJ., concur. Reconsideration denied October 24, 1978. Review denied by Supreme Court February 2, 1979. NOTES [1] The State cites United States v. Oates, 560 F.2d 45 (2d Cir.1977), and United States v. Van Lewis, 409 F. Supp. 535 (E.D. Mich. 1976), in support of its contention that the stop did not change into an arrest when Mr. Moreno was asked to move to the security office for questioning. Since we have decided that the questions changed the detention into an arrest, we need not consider this contention.

41 So.3d 910 (2010) WORTHY v. STATE. No. 3D09-2776. District Court of Appeal of Florida, Third District. July 28, 2010. Decision Without Published Opinion Affirmed.

362 F.2d 345 L. C. HAYNES, Appellant,v.REDERI A/S ALADDIN et al., Appellees. No. 22558. United States Court of Appeals Fifth Circuit. June 16, 1966. Rehearing Denied July 19, 1966. COPYRIGHT MATERIAL OMITTED Arthur J. Mandell, Mandell & Wright, Houston, Tex., for appellant. Mayo J. Thompson, E. D. Vickery, Houston, Tex., Royston, Rayzor & Cook, Houston, Tex., of counsel, for appellee, Texas Employers' Ins. Assn. Edward W. Watson and Eastham, Watson, Dale & Forney, Galveston, Tex., for appellee Rederi A/S Aladdin. Before HUTCHESON and RIVES, Circuit Judges, and CHOATE, District Judge. HUTCHESON, Circuit Judge. 1 This appeal is from a judgment in a third party action under Section 33, Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 933. L. C. Haynes brought this suit for injuries sustained while he was working aboard a vessel owned and operated by Rederi A/S Aladdin. Texas Employers' Insurance Association [TEIA] intervened, as the compensation insurer for Haynes' stevedore-employer, to recover compensation and medical benefit payments made by it to Haynes. The trial court, to whom the case was submitted without a jury, awarded damages to Haynes, but found him fifty per cent contributorily negligent and thus reduced the damages by one-half, and ordered that TEIA be reimbursed in full from the resulting fund.1 We affirm. 2 The facts, neither complicated nor confusing, may be briefly capsulated. Haynes was injured on January 17, 1957, while performing services as a gang foreman of longshoremen loading Rederi's ship. Haynes slipped and fell on oil or grease dropped on the deck of the vessel a short time before the mishap.2 At the time of the accident Haynes was 67 years old. The stevedore for whom Haynes worked carried compensation insurance with TEIA. Upon notification of the accident, TEIA began making compensation payments to Haynes, which continued until the filing of the third party action, at which time they totalled $6,892.25. 3 On January 15, 1959, Haynes instituted this third party action against Rederi alleging that his injuries were proximately caused by the unseaworthiness of the vessel and by the negligence of Rederi in permitting oil or grease on the deck. Rederi denied liability and asserted that Haynes was contributorily negligent in failing to watch where he was stepping at the time of his fall. TEIA intervened, seeking reimbursement from any recovery granted Haynes. 4 The case went to trial on October 24, 1961. The trial court concluded that at the time of Haynes' fall the vessel was unseaworthy; and ruled that Rederi was negligent and thereby proximately caused Haynes' injuries. The court further found "by a preponderance of the evidence that [Haynes'] fall was in part caused by his own contributory negligence * * * [which] proximately resulted in a portion [fifty per cent] of his injuries."3 5 In assessing damages, the court awarded Haynes the following amounts: 6 Loss of wages, date of injury to date of trial $7,500 Less 50% for contributory negligence 3,750 $3,750 _______ Loss of earning capacity, date of trial forward4 -0- Pain and suffering, past, present and future 7,500 Less: 50% for contributory negligence 3,750 3,750 _______ Medical Expenses 1,300 Less: 50% for contributory negligence 650 650 _______ ______ Total $8,150 7 From this recovery TEIA was reimbursed in full as follows: 8 Compensation paid $5,592.25 Medical expenses paid 1,300.00 _________ Total $6,892.25 9 The remainder, or $1,257.75, went to Haynes and his attorneys. Interest was ordered from the date of judgment (October 7, 1963). 10 The award and its allocation between Haynes and TEIA were indeed unsettling to Haynes and his attorneys. Several motions were filed requesting the court to alter its judgment so as (1) to award Haynes' attorneys from the TEIA recovery the full expense of the trial and an attorney's fee; (2) to restrict TEIA's reimbursement for amounts paid Haynes to the sums awarded him for loss of wages and medical expenses (i. e. $3,750 + $650 = $4,400); (3) to award Haynes an additional $810 for medical expenses incurred after the filing of this suit on January 15, 1959; and (4) to order interest from the date of trial, rather than from the date of judgment. After a hearing the court granted Haynes' attorneys certain expenses of the trial from the TEIA recovery, but denied any further relief or modification. 11 On this appeal the trial court's final judgment is attacked on numerous grounds. The court's finding of contributory negligence and its award for damages are said to be "clearly erroneous". The reimbursement granted TEIA is challenged on two grounds: first, that it improperly awarded reimbursement from Haynes' recovery for pain and suffering; and second, that it fails to award Haynes' attorneys expenses and a fee for creating the fund from which TEIA was granted reimbursement. Lastly, it is urged that interest should have been ordered from the date of trial. 12 Initially appellant Haynes assails as inadequate the trial court's award for loss of wages and medical expenses and as incorrect the court's finding of contributory negligence. At the outset it should be emphasized that it is no longer our function to retry these cases for the "clearly erroneous" concept applies to admiralty as well as to civil causes. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954).5 What this means to an appellate court reviewing the trier's findings of fact was recently reiterated by the Supreme Court in Guzman v. Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 1098, 8 L.Ed.2d 205 (1962); "Under this rule an appellate court cannot upset a trial court's factual findings unless it `is left with the definite and firm conviction that a mistake has been committed.'" 13 A thorough review of the record does not leave us with such a conviction. On the contrary, we are satisfied that the court's findings are amply supported by the record evidence. The damages awarded appellant for loss of wages and medical expenses are entirely commensurate with the proof offered regarding these items.6 Appellant was 67 years old at the time of his injury. Quite conceivably, if not probably, he had but few working days ahead, at least as a longshoreman. Moreover the trial court detailed numerous infirmities with which appellant was afflicted at the time of trial, all of which, according to the court, were attributable to his old age, and not the mishap.7 The court's conclusion that $7,500 fully compensated appellant for whatever work he might have done between the time of the accident and the time of trial, based as it was on a complete evaluation of these and other relevant considerations, is not "clearly erroneous". Nor is the court's refusal to award appellant his medical expenses incurred after the date of trial (January 15, 1959). The evidence suggests that the post-trial expenses were necessitated by degeneration due to old age, and were not the result of appellant's fall, and thus were properly omitted from the damages for the fall. 14 Correctly observing that where there is insufficient record evidence to support the trial court's finding of contributory negligence we are duty-bound to reverse that finding, San Pedro Compania Armadoras, S.A. v. Yannacopoulos, 357 F.2d 737, 740 (5th Cir. 1966), appellant argues that here the trial court's finding is wholly unsupported and thus is "clearly erroneous".8 But again we are unable to agree. From all the evidence before it the trial court determined that appellant failed to exercise reasonable care in walking on the slippery deck during loading operations, and that this oversight contributed fifty per cent to his fall. On examination of all the evidence, we cannot say this determination was "clearly erroneous". 15 Appellant next challenges the trial court's allocation of damages between him and TEIA. On this issue appellant argues that the allocation itself was improper, inasmuch as it granted TEIA reimbursement from sums awarded appellant for pain and suffering; and that at any rate the trial court erred in not awarding appellant's attorneys expenses and a fee for creating the fund which ultimately benefits primarily TEIA. Both arguments are patently unsound and we reject them. 16 Appellant directs attention to the fact that under the trial court's award, he is granted only $3,750 for loss of wages and $650 for medical expenses, with the remainder ($3,750) designated as damages for pain and suffering. He then points out that the payments made to him by TEIA were for "compensation" and for "medical expenses", and suggests that these payments did not include any sums for pain and suffering. Calling for a liberal reading of the Act in favor of the injured workman,9 appellant concludes that the reimbursement granted TEIA must, to do equity to all involved, be limited to the loss of wages and medical expenses actually awarded appellant, i. e., $4,400. This analysis is so bizarre and unsupportable as to require very little rebuttal. Suffice it to say that appellant completely misconceives the purpose and function of the Act; the whole theory of the Act, and of similar compensation legislation, is to provide the injured workman with certain and absolute benefits in lieu of all common law damages.10 Thus the payments made by TEIA were made in place of all damages to which appellant otherwise would be entitled, and not just lost wages or medical expenses. And Section 33 of the Act, 33 U.S.C. Section 933, makes it clear that the compensation insurer shall recover in full its payments from the total recovery obtained by the injured workman from a third party defendant, regardless of what that recovery replaces or is termed by the court. We therefore hold that TEIA is entitled to reimbursement from all damages awarded appellant in his third party suit. 17 The solution to appellant's request for attorney's fees and expenses from TEIA's recovery is made more difficult by this Court's recent decision in Strachan Shipping Co. v. Melvin, 327 F.2d 83 (5th Cir. 1963). In Melvin we upheld a district court award which, in effect, granted the injured workman's attorneys a fee from the portion of the total recovery allocated to the compensation insurer as reimbursement. This result was reached notwithstanding the rather obvious ill-effects flowing therefrom, as detailed in Judge Brown's vigorous dissent. Regardless of our personal views on the Melvin decision,11 we fully recognize that if Melvin decided the issue now before us we must adhere to it. 18 But we are firmly convinced that the case now before us falls outside the ambit of Melvin. In Melvin we considered controlling our previous decision in Voris v. Gulf-Tide Stevedores, Inc., 211 F.2d 549 (5th Cir. 1954), cert. denied, 348 U.S. 823, 75 S.Ct. 37, 99 L.Ed. 649 (1954); quoting from Voris, we honored "`the age-old equitable principle that one who accomplishes the creation of a fund for the benefit of another is entitled to reimbursement therefrom for the reasonable costs thereby incurred,'" and held that "under the particular facts of this case and the record before us, we are not able to say that the trial court committed error" in granting the injured workman's attorneys a fee from the compensation insurer's reimbursement. 19 The "age-old equitable principle" to which the Voris court refers, and upon which Melvin is based, applies only "when the circumstances are such as that parties sought to be held liable for fees can be said to have either expressly or impliedly accepted the attorneyship and its benefits", and "normally a mere incidental advantage resulting to a fund by reason of adverse litigation furnishes no basis for charging the attorney's fees of one of the parties against the fund." Lea v. Paterson Sav. Institution, 142 F.2d 932, 934 (5th Cir. 1944).12 Plainly it was not intended to, nor does it, apply to a case such as now before us. For TEIA explicitly rejected the attorneyship proffered by appellant's attorneys. In fact it employed its own attorneys to preserve its position during this litigation and these counsel represented it and actively asserted its rights throughout the trial. Thus TEIA's own counsel were responsible, at least in large part, for the reimbursement allowed it. This apparently distinguishes Melvin;13 and it glaringly reveals that to grant appellant's attorneys a fee from TEIA's reimbursement would be wholly unfair and unwarranted in this case. 20 Moreover we are persuaded that even if Melvin were not distinguishable, nevertheless the trial court's judgment in the case at bar nowise conflicts with that decision. Appellant's attorneys candidly admit that appellant would derive very little benefit from the holding sought; rather it is appellant's attorneys who stand to gain. And it is crystal clear that appellant's attorneys have no common interest with TEIA in this litigation, and that TEIA wisely employed its own counsel out of necessity to protect its rights. It would indeed be difficult to conceive of a situation in which the trial court, exercising "careful supervision" and giving "proper consideration to the equitable principles involved", as Melvin states it must, would be more justified in denying attorney's fees to the injured workman's counsel. Accordingly we affirm the court's action in this regard. 21 One last point remains. Appellant requested that the trial court order interest from the date of trial. This the court refused to do, instead ordering interest from the date of judgment. While an admiralty court quite clearly has power to award pre-judgment interest where such is necessary to maintain whole the damages granted a claimant, Petition of City of New York, 332 F.2d 1006, 1007-1008 (2d Cir. 1964), cert. denied, City of New York v. Bernstein, 379 U.S. 922, 85 S.Ct. 277, 13 L.Ed.2d 335 (1964), yet the exercise of this power ordinarily rests within the sound discretion of the trial court. See National Marine Service Inc. v. Talley, 348 F.2d 589 (5th Cir. 1965). Here the trial court was presented with appellant's motion for interest from the date of trial, and undoubtedly was aware of the legal principles applicable to this question. In these circumstances we think it quite probable that "the determination of damages itself includes some compensation for the delay from the time of [trial] to the time of judgment", Petition of City of New York, supra, at 1008. Moreover since TEIA actually received the bulk of the total award granted appellant, it is TEIA, and not appellant, that is injured by, but makes no complaint of, this asserted shortcoming. Upon all these considerations we cannot find the requisite abuse of discretion in the court's refusal to award interest from the date of trial. 22 The judgment of the district court is in all respects 23 Affirmed. Notes: 1 Haynes v. Rederi A/S Aladdin et al., 254 F.Supp. 185 (S.D.Tex.1963) 2 In its opinion the trial court summarized the evidence on this point thusly: * * * [I]mmediately before the time of the mishap to libelant, libelant was signaling the winch man in the loading of sack cargo. Just before libelant's fall, someone from the dock to which the vessel was moored called libelant's nickname. * * * Libelant, without looking around, stepped backwards two or three steps, then his left heel slipped and he fell. Testimony was introduced to the effect that the winches had been oiled a short time before the mishap and that one witness testified that he saw a footprint in a small trickle of oil on the deck. Libelant testified as to oil being on one shoe and his trousers. He did not see oil on the deck. 3 254 F.Supp. 188. A finding of contributory negligence does not serve to defeat the plaintiff's claim in an admiralty suit; rather the doctrine of comparative negligence, whereby each party bears his proportionate share of the loss according to his own negligence, applies. See Beadle v. Spencer, 298 U.S. 124, 131, 56 S.Ct. 712, 80 L.Ed. 1082 (1936); Keel v. Greenville Mid-Stream Serv., Inc., 321 F.2d 903 (5th Cir. 1963) 4 In this regard the trial court noted: * * * [Haynes] appeared at the trial a stooped, infirm old man wearing glasses because of cataracts, his hearing impaired, with palsied trembling hands, with a history of high blood pressure, and using a cane. None of the above ailments do I attribute to his fall or to trauma. * * * 5 Accord, Oil Screw Noah's Ark v. Bentley & Felton Corp., 322 F.2d 3, 5 (5th Cir. 1963); Caribbean Federation Lines v. Dahl, 315 F.2d 370, 373 (5th Cir. 1963), cert. denied, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963); Ellis Towing & Trans. Co. v. Socony Mobil Oil Co., 292 F.2d 91, 93 (5th Cir. 1961), and cases there cited 6 The determination of damages plainly is a fact-finding function of the trial court. See Mitchell v. Evelyn C. Brown, Inc., 310 F.2d 420, 424 (1st Cir. 1962); Smith v. Jugosalvenska Linjska Plovidia, 278 F. 2d 176, 179 (4th Cir. 1960); Hildebrand v. United States, 226 F.2d 215, 216 (2d Cir. 1955); United States v. Puscedu, 224 F.2d 5, 6 (5th Cir. 1955). And it is singularly appropriate that this function should be for the trier of fact, for the trial court heard the testimony of the witnesses, including the doctors, and thus is best qualified to canvass the relevant considerations, make allowances for conflicting points of view, and decide upon a just and fair financial award 7 See note 4 supra. It should be noted that appellant accepts as supported by sufficient evidence the court's ruling that appellant sustained no loss of future earning capacity (after the date of trial) 8 That the "clearly erroneous" rule is applicable to this factual determination is unquestioned. See American President Lines, Ltd. v. Redfern, 345 F.2d 629, 632 (9th Cir. 1965); Keel v. Greenville Mid-Stream Serv., Inc., 321 F.2d 903 (5th Cir. 1963); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 527-528, 4 A.L.R.3d 517 (9th Cir. 1962) 9 See Reed v. The Yaka, 373 U.S. 410, 415, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); McClendon v. Charente S.S. Co., 348 F. 2d 298, 301 (5th Cir. 1965), and cases there cited 10 Thus in Section 5 of the Act, 33 U.S.C. Sec. 905, it is provided that the benefits paid under the Act "shall be exclusive and in place ofall other liability * * *." (Emphasis added.) 11 We observe in passing that no other court has accepted the analysis put forth and adopted inMelvin. See Ashcraft & Gerel v. Liberty Mut. Ins. Co., 343 F.2d 333 (D.C.Cir. 1965); Davis v. United States Lines Co., 253 F.2d 262 (3d Cir. 1958); Petition of Sheffield Tankers Corp., 222 F.Supp. 441 (N.D.Cal.1963); Oleszczuk v. Calmar S.S. Corp., 163 F. Supp. 370 (D.Md.1958); Fontana v. Pennsylvania R.R., 106 F.Supp. 461 (S.D. N.Y.1952), aff'd sub nom. Fontana v. Grace Line, Inc., 205 F.2d 151 (2d Cir. 1953), cert. denied, 346 U.S. 886, 74 S.Ct. 137, 98 L.Ed. 390 (1953). 12 See Annot., 8 L.Ed.2d 894, 905 (1963) 13 InMelvin it appears that the compensation insurer was not represented by its own counsel during the trial of the third party suit, and thus the attorneys for the injured workman were solely responsible for the fund which ultimately benefited the insurer.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1681V Filed: March 13, 2019 * * * * * * * * * * * * * * * DAVID V. BOGDAN, Administrator of * UNPUBLISHED the Estate of MICHAEL GRANT, * Deceased, * * Petitioner, * v. * Decision on Attorneys’ Fees and Costs; * Reasonable Basis; Estate Administrator; SECRETARY OF HEALTH * Hourly Rate AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * Ying Zhou, Esq., Law Office of Ying Zhou, Philadelphia, PA, for petitioner. Christine Becer, Esq., U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 Roth, Special Master: On December 22, 2016, David Bogdan (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program as administrator and on behalf of the estate of Michael Grant, deceased.2 Petitioner alleged that Mr. Grant developed Guillain-Barre syndrome (“GBS”), and subsequently died on April 9, 2016, as a result of receiving an influenza vaccination on December 31, 2013. See Petition at 3, ECF No. 1. On June 6, 2018, the parties filed a Joint Stipulation of Dismissal. See ECF No. 38. An order concluding proceedings was issued the same day. See Order, ECF No. 39. 1 Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be available to anyone with access to the internet. However, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). 1  Pursuant to Section 15(e) of the Vaccine Act, petitioner’s counsel now seeks an award of attorneys’ fees and costs in the following amounts: $23,940.00 in attorneys’ fees for Ms. Zhou, $4,101.44 in litigation costs incurred by Ms. Zhou, and $7,530.00 in attorneys’ fees and costs for Mr. Bogdan, the administrator of Mr. Grant’s estate and the named petitioner in this matter. Motion for Attorneys’ Fees and Costs (“Motion for Fees”) at 3-4, ECF No. 40. After careful consideration, the request is granted in part for the reasons set forth below. I. Facts Mr. Grant was born on August 15, 1953. He had a history of high blood pressure, diabetes, arthritis, allergies, sarcoidosis, and back pain. See generally Petitioner’s Exhibit (“Pet. Ex.”) 1. On December 31, 2013, Mr. Grant received a flu vaccination at the office of his primary care physician, Dr. Donald Fox. Petition at 1. On January 15, 2014, Mr. Grant presented to an orthopedist with complaints of back pain, weakness in both legs, constipation, infrequent urination, decreased appetite, and numbness in his hands. Pet. Ex. 1 at 13-14. Mr. Grant reported onset of symptoms two weeks prior to this visit. Id. Mr. Grant was referred to the Crozer Chester Medical Center (“Crozer”) emergency department (“ED”) for evaluation of cauda equine syndrome. Id. at 14. Upon presentation to the Crozer ED, Mr. Grant reiterated that his symptoms had begun two weeks prior to the visit. Pet. Ex. 3 at 19. Mr. Grant was noted to be in acute renal failure when admitted to the ED but recovered by the time he was discharged on January 22, 2014. Pet. Ex. 1 at 37. Mr. Grant was ultimately diagnosed with spinal stenosis, lower extremity weakness secondary to plexopathy, acute renal failure, urinary retention, chronic lower back pain, gout, and hypertension. Pet. Ex. 3 at 4, 16-17, 21. On January 25, 2014, Mr. Grant presented to Mercy Fitzgerald Hospital with complaints of acute shortness of breath. Pet. Ex. 2 at 46. Upon presentation, Mr. Grant reported progressive weakness in his bilateral lower extremities three to four weeks after receiving a flu vaccine. Id. at 47. He was diagnosed with an acute pulmonary embolism, possible neuromuscular disease or GBS, diabetes, hypertension, and hyperlipidemia. Id. A CT angiogram revealed extensive bilateral pulmonary emboli. Id. On January 29, 2014, Mr. Grant was transferred to Jefferson Hospital for progressive weakness and suspicion of GBS. Id. at 40-46. An EMG was suggestive of neuropathy with demyelinating features. Lumbar puncture showed increased cell protein. Pet. Ex. 4 at 56. An MRI showed enhanced dorsal nerve roots, which was suggestive of inflammatory polyneuropathy, GBS, viral etiologies, or sarcoidosis. Id. Mr. Grant’s additional differential diagnoses included severe sepsis, diabetes, and pneumonia. Pet. Ex. 1 at 21-23. Mr. Grant remained in the hospital until February 26, 2014. Id. at 18-29. An infectious disease consultation on February 17, 2014, revealed pleocytosis3 in the cerebrospinal fluid (“CSF”), which is atypical in GBS. Pet. Ex. 4 at 31-33. Mr. Grant’s cause of illness was unknown, with infectious and non-infectious etiologies. Id. 3 Pleocytosis is defined as “presence of a greater than normal number of cells in the cerebrospinal fluid. Pleocytosis, DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1460 (32d ed. 2012) [hereinafter DORLAND’S]. 2  Mr. Grant was treated at Penn Medicine on March 24-29, 2014. See Pet. Ex. 11 at 17-20, 161. A repeat lumbar puncture showed resolution of his pleocytosis. Id. at 161. Because of this change, it was noted that Mr. Grant likely had a viral illness that was responsible for his neurological disease and initial elevated white blood cell count in the CSF. Id. at 19. The record also indicated that this result was inconsistent with GBS and that substantial improvement was unlikely. Id. Two years later, on February 14, 2016, Mr. Grant presented to the Lankenau Hospital Emergency Department, experiencing severe respiratory distress and tachypnea. Pet. Ex. 6 at 17- 27. He was diagnosed with possible septic shock and aspiration pneumonia. Id. at 4. An infectious disease consultant noted early sepsis syndrome with ventilator dependent respiratory failure. Id. CT scans confirmed multifocal pneumonia. Id. at 14-15, 84-85. He was treated with IV antibiotics. Id. Mr. Grant remained on a respirator until April 9, 2016, when he passed away. Id. at 201. Mr. Grant’s death certificate states that his cause of death was anoxic encephalopathy4 related to cardiac arrest. See Pet. Ex. 8. II. Procedural History On December 22, 2016, petitioner filed the petition and Mr. Grant’s medical records and death certificate. Petition, Pet. Ex. 1-9, ECF No. 1. This case was originally assigned to Chief Special Master Dorsey but was later transferred to me on December 12, 2017. See ECF Nos. 4, 33. On February 15, 2017, an initial status conference was held, after which respondent was ordered to file a status report advising how he intended to proceed by May 15, 2017. Order at 1, ECF No. 8. On May 16, 2017, respondent filed a status report (“Resp. S.R.”) requesting an additional thirty days to file a status report advising how he intended to proceed. Resp. S.R. at 1, ECF No. 9. Chief Special Master Dorsey granted respondent’s request for an extension of time and ordered respondent to file a status report by June 14, 2017. Order at 1, ECF No. 10. On June 14, 2017, respondent filed a status report identifying several missing records needed to complete his review of the case. Resp. S.R. at 1, ECF No. 11. Petitioner was ordered to file the requested medical records and an Amended Statement of Completion by July 19, 2017. Order at 1, ECF No. 12. On July 16, 2017, petitioner filed additional medical records (Pet. Ex. 10) and a status report requesting an additional 60 days to obtain the outstanding records. Pet. S.R. at 1, ECF No. 14. Chief Special Master Dorsey ordered petitioner to file additional records and an amended Statement of Completion by September 15, 2017. Order at 1, ECF No. 15. On August 10, 2017, petitioner filed updated medical records (Pet. Exs. 9(a)-12), an amended Statement of Completion (ECF No. 19), and a status report (“Pet. S.R.”) advising that he had made a good faith effort to obtain all requested medical records, even though a handful of records remained outstanding. Pet. S.R. at 1, ECF No. 18. 4 Anoxic encephalopathy is defined as “hypoxic degenerative disease of the brain.” Anoxic encephalopathy, DORLAND’S at 614. 3  A status conference was held on August 18, 2017, after which petitioner was ordered to file the discussed insurance records by August 25, 2017, and respondent was ordered to file a status report by September 26, 2017, indicating how he intended to proceed and whether he was willing to engage in settlement discussions. Order at 1, ECF No. 20. Petitioner filed the requested insurance documentation the same day. Pet. Ex. 13, ECF No. 21. On August 24, 2017, respondent’s counsel contacted petitioner’s counsel and Chief Special Master Dorsey’s chambers and advised that her client reviewed the insurance documentation submitted by petitioner and requested additional vaccination documentation. Informal Communication, dated August 24, 2017. Petitioner filed the additional vaccine documentation and insurance records, along with an amended Statement of Completion, on September 14, 2017. Pet. Exs. 1(a), 8(a), ECF Nos. 27-29. On October 16, 2017, respondent filed a status report requesting 45 days to file his Rule 4(c) Report. Resp. S.R. at 1, ECF No. 30. Respondent’s Rule 4(c) Report deadline was set for December 4, 2017. Order at 1, ECF No. 31. On December 4, 2017, respondent filed his Rule 4(c) Report (“Resp. Report”) in which he noted several issues with this case, including lack of a definitive diagnosis and issues with petitioner’s reported onset. Resp. Report at 5, ECF No. 32. This case was reassigned to me on December 12, 2017. See ECF No. 34. A status conference was held on February 14, 2018, during which petitioner’s counsel advised that she intended to file a motion for interim costs as she is a solo practitioner with limited resources to fund costs in this case. Order at 1, ECF No. 35. Respondent’s counsel noted her opposition to an award of interim costs at this early stage of litigation and advised her client would likely oppose the motion as well. Id. Petitioner was ordered to file either a motion for interim fees and costs or a status report indicating how he intended to proceed by April 2, 2018. Id. On March 4, 2018, petitioner’s counsel filed a status report (“Pet. S.R.”) advising that she was able to obtain an expert to author a report and would no longer need to file a motion for interim fees and costs. Pet. S.R. at 1, ECF No. 36. Accordingly, petitioner was ordered to file an expert report by June 4, 2018. Non-PDF Order, dated March 5, 2018. Petitioner filed an expert report authored by Dr. Ron Shatzmiller on June 2, 2018. Pet. Exs. 14-15, ECF No. 37. In this report, Dr. Shatzmiller acknowledged that petitioner developed GBS-like symptoms after receipt of a flu vaccine and “it [was] reasonable to suspect that the cause of [Mr. Grant’s] illness was GBS induced by an influenza vaccine.” Pet. Ex. 14 at 1. But, ultimately, Mr. Grant’s GBS-like symptoms were suspected to be viral related based on the pleocytosis found in the CSF. See Pet. Ex. 11 at 19. On June 6, 2018, respondent filed a Joint Stipulation of Dismissal (ECF No. 38), and an order concluding proceedings pursuant to Vaccine Rule 21(a) was issued the same day. See Order, ECF No. 39. On August 30, 2018, petitioner filed a Motion for Attorneys’ Fees and Costs. Motion for Fees, ECF No. 40. Petitioner requests attorneys’ fees in the amount of $23,940.00 in attorneys’ fees for Ms. Zhou, $4,101.44 in litigation costs incurred by Ms. Zhou, and $7,530.00 in attorneys’ fees and costs for Mr. Bogdan, the petitioner in this case. Motion for Fees at 3-4. 4  On September 13, 2018, respondent filed a response to petitioners’ Motion for Fees, submitting that, “absent any objective evidence that Mr. Grant’s flu vaccine caused him to develop GBS, petitioner has failed to establish a reasonable basis for the claim set forth in the petition . . .” Response at 4, ECF No. 41. Petitioner filed a reply on September 20, 2018, arguing that, while this was a very difficult and complex case, the proximate temporal relationship between the flu vaccine and onset of petitioner’s symptoms constituted sufficient proof of vaccination so as satisfy the reasonable basis requirement. Reply at 8-9, ECF No. 42. Petitioner further noted that he quickly withdrew his claim and voluntarily exited the Program upon the issuance of the expert report unsupportive of entitlement for compensation. Id. at 10. This matter is now ripe for decision. III. Applicable Law and Analysis A. Good Faith and Reasonable Basis The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, petitioner’s counsel is entitled to a reasonable attorneys’ fee award. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award so long as the petition was brought in “good faith” supported by “reasonable basis.” § 15(e)(1). Inquiry into whether counsel brought a claim in good faith is a subjective inquiry that questions whether the attorney exercised adept professional judgment in determining whether a petitioner may be entitled to compensation. Chuisano v. United States, 116 Fed. Cl. 276, 286 (2014) (citations omitted). Here, respondent did not question petitioner’s counsel’s subjective good faith in bringing the claim. Therefore, petitioner’s good faith requires no further analysis. Reasonable basis is an objective standard determined by evaluating the sufficiency of the medical records in petitioner’s possession at the time the claim is filed. “Special masters have historically been quite generous in finding reasonable basis for petitions.” Turpin v. Sec’y of Health & Human Servs., No. 99-564, 2005 WL 1026714 at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005). However, the Federal Circuit recently denied an award of attorney’s fees based on petitioner’s lack of reasonable basis in Simmons v. Secretary of Health and Human Services. 875 F.3d 632, 636 (Fed. Cir. 2017). In Simmons, the Federal Circuit determined that petitioner lacked reasonable basis for filing a claim when, at the time of filing: (1) petitioner’s counsel failed to file proof of vaccination, (2) there was no evidence of a diagnosis or persistent injury allegedly related to a vaccine in petitioner’s medical records, and (3) the petitioner had disappeared for approximately two years prior to the filing of the petition and only resurfaced shortly before the statute of limitations deadline on his claim expired. See id. at 634-35. The Federal Circuit specifically stated that the reasonable basis inquiry is objective and unrelated to counsel’s conduct prior to filing a claim. The Court consequently affirmed the lower court’s holding that petitioner’s counsel lacked reasonable basis in filing this claim based on the insufficiency of petitioner’s medical records and proof of vaccination at the time the petition was filed. Id. at 636. 5  In light of Simmons, the Court of Federal Claims determined, “[I]n deciding reasonable basis[,] the Special Master needs to focus on the requirements for the petition under the Vaccine Act to determine if the elements have been asserted with sufficient evidence to make a feasible claim for recovery. . . Under the objective standard articulated in Simmons, the Special Master should have limited her review to the claim alleged in the petition to determine if it was feasible based on the materials submitted.” Santacroce v. Sec’y of Health & Human Servs., No. 15-555V, 2018 WL 405121 at *7 (Fed. Cl. 2018). When evaluating a case’s reasonable basis, petitioner’s “burden [in demonstrating reasonable basis] has been satisfied . . . where a petitioner has submitted a sworn statement, medical records, and [a] VAERS report which show that recovery is feasible.” Id. Moreover, the special master may consider various objective factors including “the factual basis of the claim, the novelty of the vaccine, and the novelty of the theory of causation.” Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018). In this case, respondent cursorily argued that the petition lacked reasonable basis, arguing that “the instant claim never possessed a reasonable basis, since petitioner has provided no evidence to satisfy the Act’s objective reasonable basis standard.” Response at 4. Respondent further submitted that “absent any objective evidence that Mr. Grant’s flu vaccine caused him to develop GBS, petitioner has failed to establish a reasonable basis for the claim set forth in the petition, and he is not eligible for an award of attorneys’ fees and costs.” Id. Petitioner’s counsel argued that she had satisfied the reasonable basis standard under the Chuisano “totality of circumstances” test. Reply at 7. Petitioner based this assertion on (1) the fact that the administration of the seasonal influenza vaccine with subsequent onset of GBS within 3 to 42 days became a covered Vaccine Injury Table three months after the filing of Mr. Grant’s petition; (2) the temporal proximity between the administration of the flu vaccine and the reported onset of GBS-like symptoms; and (3) respondent’s misplaced reliance on selective portions of Dr. Shatzmiller’s report as evidence that petitioner’s application for fees and costs was not supported. Id. I agree with petitioner that this claim was supported by reasonable basis when it was filed. In Simmons, the Federal Circuit determined that a special master may objectively consider the evidence provided by petitioner in deciding whether a claim was supported by reasonable basis when it was filed. 875 F.3d at 636. While the Federal Circuit determined that there was no reasonable basis in Simmons, petitioner’s counsel in that case conducted next to no inquiry into the merits of the claim before filing the petition. See id. Moreover, there was no objective evidence in medical records referenced or filed that demonstrated the feasibility of petitioner’s claim. See id. When this case was filed, multiple physicians throughout the medical records attributed petitioner’s GBS-like symptoms to the flu vaccine petitioner received on December 31, 2013. Pet. Ex. 2 at 46; Pet. Ex. 4 at 56. Though causation and onset may have ultimately been an impediment to petitioner’s ability to prove entitlement,5 petitioner’s symptoms fit into the established 5 Petitioner did not file the records in which GBS was ruled out as a diagnosis until approximately 8 months after filing the petition. See Pet. Ex. 11 at 19 (filed on August 10, 2017, ECF No. 17). Accordingly, this information strengthens petitioner’s claim that reasonable basis existed at the time the petition was filed. 6 timeframe for onset of GBS, 3 to 42 days. See Di Roma v. Sec’y of Health & Human Servs., No. 90-3277, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993) (“[T]he ‘reasonable basis’ requirement is objective, looking not at the likelihood of success but more to the feasibility of the claim.”). At petitioner’s January 15, 2014 visit with Dr. Fox, he placed onset of his symptoms approximately two weeks prior to the visit, at the beginning of January 2014. Pet. Ex. 1 at 13-14. On January 25, 2014, petitioner reported his symptoms began three to four weeks after receiving the flu vaccine. Pet. Ex. 2 at 47. While these dates of onset are inconsistent, petitioner was correct in his brief that the reasonable basis inquiry required by Chuisano is less onerous than the preponderance of the evidence standard. Reply at 7, 9 (citing Chuisano v. United States, 116 Fed. Cl. at 285). Moreover, petitioner met his reasonable basis burden by providing objective evidence in the form of medical records to support his claim. 875 F.3d at 636; 6 Santacroce, 2018 WL 405121 at *7. Thus, when Mr. Grant’s petition was filed, an objective reasonable basis supported petitioner’s claim. Even though the strength of petitioner’s case may have diminished, petitioner’s claim remained supported by reasonable basis for the pendency of this matter. In his Rule 4(c) Report, respondent noted several issues with petitioner’s case including the lack of a definitive GBS diagnosis and inconsistent accounts regarding the onset of petitioner’s symptoms. Resp. Report at 5. Petitioner retained an expert in this matter, Dr. Shatzmiller, who concluded that what first appeared to be a form of GBS associated with the flu vaccination turned out to be a suspected infection that caused his neurological condition. Pet. Ex. 14 at 1-2. However, petitioner’s expert opined that this case initially had a reasonable basis to conclude that petitioner had suffered GBS following his flu vaccine. Id. at 1 (“[I]t [was] reasonable to suspect that the cause of [Mr. Grant’s] illness was GBS induced by the influenza vaccine.”). The nine-month period during which respondent reviewed this case and requested additional medical records, insurance records, and vaccination records before he determined that this case was not compensable is particularly notable. Respondent’s requests during this time period demonstrate how difficult the medical issues in this case were and highlight the complexity in determining what caused petitioner’s neurological problems. Petitioner’s original filing, therefore, appeared reasonable to respondent for the first nine months after the filing of the petition. Moreover, petitioner’s counsel was expedient in dismissing this case once it became clear that petitioner could not satisfy his burden of proof. Within two days of filing Dr. Shatzmiller’s unfavorable expert report, petitioner’s counsel coordinated with respondent to file a Joint Stipulation for Dismissal dismissing this matter. Stipulation, ECF No. 38. Ultimately, petitioner provided concrete medical records demonstrating the possibility of a GBS diagnosis associated with petitioner’s receipt of a flu vaccine, even though this theory was later disproven. Petitioner’s expediency in dismissing this case, coupled with the medical records and temporal relationship between the vaccine and onset of petitioner’s symptoms support petitioner’s assertion that there was reasonable basis for the duration of this matter. The filing of this claim was based on more than unsupported speculation and was dismissed as soon as it became 6 Because I find reasonable basis in the medical records, I do not reach the issue discussed in Simmons regarding the interplay between counsel’s conduct and the statute of limitations. See Simmons, 875 F.3d at 636. 7 clear to petitioner’s counsel that Mr. Grant’s claim could not be proven. Thus, I find that reasonable basis existed for the entire duration of this matter. B. Evaluation of Requested Attorneys’ Fees and Costs The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys’ fees” and “other costs” under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial estimate of a reasonable attorneys’ fees” is calculated by “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward based on other specific findings. Id. Special masters have substantial discretion in awarding fees and may adjust a fee request sua sponte, apart from objections raised by respondent and without providing petitioners with notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. See Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). 1. Reasonable Hourly Rate A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner’s attorney.” Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney’s fees to be awarded at local hourly rates when “the bulk of the attorney’s work is done outside the forum jurisdiction” and “there is a very significant difference” between the local hourly rate and forum hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec’y of Health & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). Ms. Zhou practices in Philadelphia, PA. Motion for Fees at 2. Special masters have consistently awarded forum rates to attorneys who practice in Philadelphia, so forum rates will be awarded in this case. See D.B. v. Sec’y of Health & Human Servs., No. 11-513, 2018 WL 3029339, at *3 (Fed. Cl. Spec. Mstr. May 23, 2018); Vanderpoel v. Sec’y of Health & Human Servs., No. 15-899V, 2017 WL 2534327, at *2 (Fed. Cl. Spec. Mstr. May 16, 2017). For cases in which forum rates apply, McCulloch provides the framework for determining the appropriate hourly rate range for attorneys’ fees based upon the attorneys’ experience. See McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years. Attorneys with 11-19 years of experience are 8 awarded the following hourly rates: $300-$375 for 2015-2016, $307-$383 for 2017, and $317- $396 for 2018.7 In this case, petitioner’s counsel requested an hourly rate of $300 for work performed in 2015 through 2018. Motion for Fees at 1. Petitioner’s counsel began practicing law in 2001 and thus, fits squarely in the Fee Schedule range for attorneys with 11 to 19 years of experience throughout the duration of this matter.8 Additionally, this is Ms. Zhou’s first case in the Vaccine Program, so she will be awarded an hourly rate at the low end of the McCulloch range. See Srour v. Sec’y of Health & Human Servs., No. 14-283V, 2017 WL 2537373, at *4 (Fed. Cl. Spec. Mstr. May 17, 2017) (awarding hourly rate based in part on “specific experience with the Vaccine Program”); Dipietro v. Sec’y of Health & Human Servs., No. 15-742V, 2016 WL 7384131, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (considering level of experience in the Vaccine Program in determining appropriate hourly rate). Based on petitioner’s counsel’s fee application, locale, and experience, I find the requested hourly rate for 2015 through 2018 to be reasonable and consistent with the rates contained in the McCulloch Fee Schedule. Therefore, Ms. Zhou’s hourly rate of $300 will not be reduced. 2. Hours Reasonably Expended Attorneys’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton ex rel. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intra office communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing entries.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at one- half of the normal hourly attorney rate. See Scott v. Sec’y of Health & Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y of Health & Human Servs., No 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, it is “well within the Special Master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work 7 The fee schedules are posted on the Court’s website. See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visited Feb. 4, 2019). 8 Ms. Zhou stated in her Motion for Fees that she has been practicing law for 16 years. Motion for Fees at 2. However, Ms. Zhou did not indicate when she was admitted to practice law. According to her website, Ms. Zhou began practicing law in 2001. Profile, AskLawyerZhou.com, https://www.asklawyerzhou.com/ (last visited Feb. 4, 2019). 9 done.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728- 29 (affirming the Special Master’s reduction of attorney and paralegal hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same). Counsel billed 79.8 hours at a rate of $300 per hour, for a total of $23,940.00 in attorneys’ fees. Motion for Fees, Ex. A at 13. Based on the above determination that reasonable basis for petitioner’s claim lasted the entire duration of this matter, petitioner’s counsel’s hours will not be reduced due to a reasonable basis issue. However, upon review of petitioner’s Motion for Fees, I noted billing issues concerning counsel billing at her rate for tasks that were paralegal in nature or that were “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521.9 For example, Ms. Zhou billed for corresponding with providers to request medical records and billing information, redacting medical records for filing in accordance with court rules, and copying medical records onto a CD- rom for delivery to petitioner’s expert.10 These are tasks that must be billed at paralegal rates or not billed at all as they are secretarial. Additionally, on multiple occasions, Ms. Zhou billed her full hourly rates for time spent traveling to visit Mr. Grant at his rehabilitation center.11 Time for travel should be billed at one-half the attorney’s hourly rate and thus, Ms. Zhou should only have billed $150 for time spent traveling. See Scott, 2014 WL 2885684, at *3. Therefore, I find that petitioner’s requested fee award of $23,940.00 should be reduced by 5%. Petitioner is advised that future billing infractions may result in a higher percentage reduction. Petitioner is hereby awarded $22,743.00 in attorneys’ fees. 3. Reasonable Costs Petitioner requested a total of $4,101.44 in attorneys’ costs. See Motion for Fees, Ex. E at 2, Ex. H at 1. The requested costs consist of $1,500 in fees to Ron Shatzmiller, M.D. and $2,601.44 in costs associated with the retrieval of medical records, court filing fees, case expenses such as parking and postage, and Dr. Shatzmiller’s initial retainer. Motion for Fees at 2. I find petitioner’s requested costs to be reasonable and thus award petitioner $4,101.44 in attorneys’ costs. 4. Attorneys’ Fees and Costs for Estate Administrator Petitioner also requested $7,530.00 in attorneys’ fees charged by David V. Bogdan, Esq. for the administration of Mr. Grant’s estate. See Motion for Fees at 4, Ex. G. These fees and expenses are not compensable under the Vaccine Act. 9 The following entries are examples and are not exhaustive; they merely provide a sampling. 10 See, e.g., Motion for Fees, Ex. A at 9 (“prepared request to Inglis House for medical records of Michael Grant pursuant to HIPAA signed by estate administrator”); id. at 10 (“receipt, review, scanning and bates stamping Hospital of University of Pennsylvania records”); id. at 12 (“copied all relevant medical records onto CD-rom for delivery to Dr. Ron Shatzmiller for review and report”). 11 See, e.g., Motion for Fees, Ex. A at 1 (“attorney round trip to Prospect Park Rehabilitation Center for client meeting”); id. at 2 (“attorney round trip travel to Prospect Park Rehabilitation Center for the notarization and execution of client’s medical power of attorney”). 10  The Vaccine Act limits the amount of “compensation to cover petitioner’s . . . costs” to those “incurred in any proceeding on [a Vaccine Act] petition.” § 15(e)(1). Such costs often include those that form “‘an essential prerequisite condition’ to obtaining an award that must ‘be fulfilled in order for [the] award to be made.’” Bennett v. Sec’y of Health & Human Servs., No. 15-65V, 2017 WL 3816094, at *3 (Fed. Cl. Spec. Mstr. Aug. 7, 2017) (quoting Haber ex rel. Haber v. Sec’y of Health & Human Servs., No. 09-458V, 2011 WL 839111, at *2 (Fed. Cl. Spec. Mstr. Feb. 14, 2011)). However, “fees and costs concerning the administration of [an] estate” are “disallowed because they were not incurred in any proceeding on the petition.” Bennett, 2017 WL 3816094, at *5 (emphasis added) (quoting Mol v. Sec’y of Health & Human Servs., 50 Fed. Cl. 588, 591 (2001)); see also Siegfried v. Sec’y of Dep't of Health & Human Servs., 19 Cl. Ct. 323, 325 (1990). Morever, attorneys’ fees are generally not awarded to petitioners who also happen to be attorneys as there is no “formal, established attorney-client relationship” present warranting an award of fees. See Underwood v. Sec’y of Health & Human Servs., No. 00-357V, 2013 WL 33157525, at *3 (Fed. Cl. Spec. Mstr. May 31, 2013) (citing Kooi v. Sec’y of Health & Human Servs., No. 05- 438V, 2007 WL 5161800, at *4 (Fed. Cl. Spec. Mstr. Nov. 21, 2007)). This conclusion is bolstered by the practical difficulties that would accompany awarding attorneys’ fees for estate administration. Special masters are given discretion to award attorneys’ fees precisely because of their “superior understanding of the litigation.” Hall, 640 F.3d at 1357 (quoting Hensley, 461 U.S. at 437); see also Davis v. Sec’y of Health & Human Servs., 105 Fed. Cl. 627, 638 (2012) (noting that special masters should “draw upon [their] own experience with the Vaccine Program” in assessing attorneys’ fees). Special masters are thus “expected to examine a law firm’s time sheets and root out ‘hours that are excessive, redundant, or otherwise unnecessary’ so that they may be ‘excluded from an award.’” Davis, 105 Fed. Cl. at 637-38 (quoting Carrington ex rel. Carrington v. Sec’y of Health & Human Servs., 85 Fed. Cl. 319, 323 (2008)). Performing this examination on estate attorneys’ time sheets, however, would require a nuanced understanding of state probate law to determine the reasonableness of the various tasks that are billed. Such an evaluation by special masters would be especially difficult given that none of the work performed by the estate attorneys is ever “presented to the court at its behest and for its approval.” Thomas v. Sec’y of Health & Human Servs., No. 92-46V, 1997 WL 74664, at *3 (Fed. Cl. Spec. Mstr. Feb. 3, 1997). The Court of Federal Claims has previously “addressed the question of whether fees attributable to probate matters are compensable under [§ 15(e)(1)] and has answered the question in the negative” each time. Mol, 50 Fed. Cl. at 591; see Lemon v. Sec’y of Health & Human Servs., 19 Cl. Ct. 621, 623 (1990) (holding that “fees and expenses concerning the administration of [an] estate” are “disallowed because they were not incurred in any proceeding on the petition”); Siegfried, 19 Cl. Ct. at 325 (holding that the Vaccine Act “does not provide attorney fee awards to cover the myriad legal implications of establishing or administering an estate”). In this case, the requested $7,530 in attorneys’ fees and expenses that were billed by Mr. Bogdan for estate administration are not compensable under the Act. See Motion for Fees, Ex. G. According to Mr. Bogdan’s billing records, Mr. Bogdan was not appointed representative of the estate for purposes of filing the petition; he apparently was the administrator pursuant to Mr. Grant’s will. See id. at 2. Mr. Bogdan’s billing records began on August 17, 2016, approximately 11 four months after Mr. Grant died. Id. The first several entries in Mr. Bogdan’s billing records pertain to estate administration fees,12 including hours billed for the preparation and review of a renunciation on behalf of Mr. Grant’s son, travel to file a Petition for Citation with the Philadelphia Register of Wills, and correspondence with the Register of Wills for a hearing date. See Motion for Fees, Ex. G at 2. Such administration fees involve “a wide variety of probate matters” in collateral state court proceedings and were “unrelated to the vaccine petition” itself and accordingly not compensable. Haber, 2011 WL 839111, at *2. Once Mr. Grant’s petition was filed, Mr. Bogdan continued as the representative of Mr. Grant’s estate in all of Mr. Grant’s legal matters. See Motion for Fees, Ex. G at 2-4. However, services rendered by Mr. Bogdan regarding Mr. Grant’s estate administration had nothing to do with the legal proceedings in this Court; the hours he billed for the vaccine claim related to Mr. Bogdan “standing in the shoes” of the decedent, Mr. Grant, as the petitioner. Petitioners are not compensated for their time in vaccine cases, even if they are attorneys, as an attorney-petitioner has no “formal, established attorney-client relationship” warranting an award of attorneys’ fees. Underwood, 2013 WL 33157525, at *3. Accordingly, Mr. Bogdan will not be compensated for the hours he billed as petitioner in the vaccine claim. Moreover, as noted above, Mr. Bogdan will also not be compensated under the Vaccine Act for general estate administration matters as these are matters unrelated to the vaccine petition. See Haber, 2011 WL 839111, at *2. Therefore, the entirety of Mr. Bogdan’s requested fees and costs is not compensable under the Act. In sum, while “costs incurred in any proceeding on [a Vaccine Act] petition,” § 15(e)(1) are compensable, attorneys’ fees incurred for estate administration in collateral state court proceedings are not, particularly when they have nothing to do with the vaccine petition. Moreover, an estate administrator will not be compensated for hours billed while “standing in the shoes” of a petitioner as he or she is not performing legal work. Therefore, the fees and costs associated with Mr. Bogdan’s administration of Mr. Grant’s estate for purposes of this matter are not compensable and Mr. Bogdan’s request for fees and costs is denied. IV. Total Award Summary Based on the foregoing, I hereby award petitioner $26,847.44,13 representing reimbursement for attorneys’ fees in the amount of $22,743.00 and costs in the amount of $4,104.44, in the form of a check made payable jointly to petitioner and petitioner’s counsel, Ying Zhou, Esq. The Clerk of the Court is directed to enter judgment in accordance with this Decision.14 12 The following entries are examples and are not exhaustive; they merely provide a sampling. 13 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991). 14 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review. 12 IT IS SO ORDERED. s/ Mindy Michaels Roth Mindy Michaels Roth Special Master 13 

304 S.W.3d 910 (2010) Stanley SHOOK and Patrick Jaehne, Appellants, Terry Walden and Joy Walden, Cross-Appellants, v. Terry WALDEN and Joy Walden, Appellees, Stanley Shook and Patrick Jaehne, Cross-Appellees. No. 03-09-00576-CV. Court of Appeals of Texas, Austin. February 18, 2010. *912 Jamie A. Rose, Amanda G. Taylor, Hohmann, Taube & Summers, L.L.P., Austin, TX, for Appellant. Patrick Jaehne, Cedar Creek, TX, pro se appellant. *913 Derek R. Van Gilder, The Law Office of Derek R. Van Glider, Bastrop, Tracy J. Willi, James N. Willi, Willi Law Firm, P.C., Austin, TX, for appellee. Before Justices PURYEAR, PEMBERTON and WALDROP. OPINION BOB PEMBERTON, Justice. Appellant Stanley Shook has filed a motion for review of a December 9, 2009 district court order determining the amount of security required for him to suspend enforcement of the district court's judgment pending this appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 52.006(d) (West 2008); Tex.R.App. P. 24.4. The primary issues in dispute are whether section 52.006, subsection (a), of the civil practice and remedies code, as amended in 2003, requires Shook to secure the amount of attorney's fees and prejudgment interest awarded in the district court's judgment. Also at issue is whether Shook sufficiently secured the costs awarded in the judgment and post-judgment interest. We conclude that Shook is not required to secure the amount of attorney's fees and that he sufficiently secured costs. However, we hold that Shook is required to secure the amount of prejudgment interest awarded in the judgment and furnish additional security for post-judgment interest. BACKGROUND The underlying dispute involves two contracts between S & J Endeavors, L.L.C. (S & J) and appellees Terry and Joy Walden whereby S & J sold the Waldens real property (the "Land Contract") and agreed to construct a house on the property (the "Residential Construction Contract"). Of relevance to this proceeding, a jury found that S & J had breached the Residential Construction Contract and that the Waldens had incurred $80,000 in damages resulting from that breach. The sole element of damages submitted to the jury on that claim was "[t]he difference, if any, of the value of the house as it was received and the price The Waldens paid for it . . . at the time the title was transferred." The jury also found that S & J was the alter ego of both appellant Shook and appellant Patrick Jaehne and had been operated as a single business enterprise with both Shook and Jaehne. The Waldens had pled for attorney's fees under chapter 38 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8) (West 2008) ("A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . an oral or written contract."). Following the verdict, the parties tried the amount of attorney's fees to the bench. Thereafter, the district court rendered judgment awarding the Waldens the following sums from S&J, Shook and Jaehne, jointly and severally: • $80,000 "for damages caused by Defendants' breach of contract of the Residential Construction Contract." • Prejudgment interest on the contract damages at the rate of five percent per annum, accruing from September 19, 2006. This totaled $11,189.05.[1] • $318,000 in reasonable and necessary trial attorney's fees. • An additional $10,000 in attorney's fees "for the services required to perform *914 post-judgment discovery and to satisfy the judgment by writ of execution." • A total of $25,000 in contingent appellate attorney's fees. • $10,591.25 "as costs associated with professional services necessitated by actions of Defendants." • "Costs, including but not limited to Jury costs." • Post-judgment interest, at the rate of five percent per annum, on the amounts of contract damages, prejudgment interest, trial attorney's fees, post-judgment trial-level attorney's fees, and "costs associated with professional services" described above. Following post-judgment motions, Shook filed a notice of appeal in this Court.[2] On October 5, Shook deposited with the district clerk a cashier's check in the amount of $94,936.25 for the purpose of superseding the judgment. See Tex.R.App. P. 24.1(a)(3), (c).[3] Contending that this amount was insufficient to secure the judgment, the Waldens filed a motion requesting the district court to determine the sufficiency of Shook's security. See id. R. 24.3(a)(1).[4] To suspend a money judgment pending appeal in a civil case, section 52.006, subsection (a), of the civil practice and remedies code requires that a judgment debtor furnish a bond, deposit, or other security in an amount "equal [to] the sum of: (1) the amount of compensatory damages awarded in the judgment; (2) interest for the estimated duration of the appeal; and (3) costs awarded in the judgment." Tex. Civ. Prac. & Rem.Code Ann. § 52.006(a); see Tex.R.App. P. 24.2(a)(1) (rule implementing section 52.006, subsection (a)). This amount, however, may not exceed the lesser of fifty percent of the judgment debtor's current net worth or $25 million. Tex. Civ. Prac. & Rem.Code Ann. § 52.006(b); see Tex.R.App. P. 24.2(a)(1). Additionally, if the trial court finds that the judgment debtor is likely to suffer "substantial economic harm" from posting security in the amount otherwise required, the court "shall lower the amount of the security to an amount that will not cause the judgment debtor substantial economic harm." Tex. Civ. Prac. & Rem.Code Ann. § 52.006(c); see Tex.R.App. P. 24.2(b). Shook contended that the $94,936.25 he deposited was sufficient under section 52.006, subsection (a), to supersede the judgment because it represented the sum of (1) the $80,000 in contract damages, which Shook asserted were the entirety of the "compensatory damages awarded in the judgment;" (2) post-judgment interest on the contract damages at the judgment rate of five percent for an estimated one-year duration of the appeal, which equaled $4,000;[5] and (3) "costs awarded in the judgment" of $345 in court costs certified by the district clerk plus the $10,591.25 in "costs associated with professional services" awarded in the judgment.[6]See Tex. *915 Civ. Prac. & Rem.Code Ann. § 52.006(a); Tex.R.App. P. 24.2(a)(1). Shook further asserted that a higher amount of security would cause him "substantial economic hardship," see Tex. Civ. Prac. & Rem.Code Ann. § 52.006(c); Tex.R.App. P. 24.2(b), and that, at a minimum, the district court was required to limit the amount of security to fifty percent of his net worth. See Tex. Civ. Prac. & Rem.Code Ann. § 52.006(b); Tex.R.App. P. 24.2(a)(1). Shook filed evidence relevant to his net worth, including an affidavit in which he testified that his net worth was $514,029.00. The Waldens asserted that Shook's deposit was insufficient because it did not secure the $318,000 in trial attorney's fees, the $10,000 in post-judgment trial-level attorney's fees,[7] or prejudgment interest awarded in the judgment. They also urged that a more reasonable "estimated duration of the appeal" for which post-judgment interest must be secured was two years rather than the one-year estimate that Shook had employed, and that Shook was required to provide additional security for post-judgment interest on attorney's fees, prejudgment interest, and the "costs associated with professional services." The Waldens also filed objections to Shook's evidence[8] and sought a deposition and document discovery from Shook concerning his net worth and any transfers of assets since January 1, 2006. Shook objected to the discovery on grounds that he had made a deposit sufficient to supersede the judgement, see Tex.R. Civ. P. 621a (permitting certain post-judgment discovery "so long as said judgment has not been suspended"), and that the district court had not held his deposit to be insufficient or even considered the issue yet. A hearing on the Waldens' motion was held on December 9, 2009. The sole focus of the hearing was the threshold issue of whether the amount of Shook's deposit satisfied the requirements of section 52.006, subsection (a). No additional evidence was presented. Following the hearing, the district court signed an order determining that Shook's $94,936.25 deposit amount was insufficient to supersede the judgment. The court also set the amount of security required to supersede the judgment at $257,014.50—corresponding to fifty percent of Shook's net worth as represented in his affidavit—plus the "[c]osts, including but not limited to Jury costs," awarded in the judgment. These "costs," the Waldens acknowledge, refer to court costs. Although the parties dispute the amount of court costs that Shook must secure, as discussed below, the Waldens contend they are less than $2,000. The order does not explain how the district court calculated $257,014.50 as the amount required to secure the judgment, nor were findings of fact and conclusions of law issued or requested. As the parties seem to acknowledge, however, the calculation *916 necessarily rests on the legal conclusion that the $318,000 in trial attorney's fees (or some portion thereof) must be included in the amount required to secure the judgment, as this is the only sum awarded in the judgment whose inclusion, alone or in combination with other amounts awarded in the judgment, would yield a sum equal to or exceeding $257,104.50.[9] The district court ordered that post-judgment discovery proceed and indicated that it would address in further proceedings any issues relating to the application of limitations on security based on Shook's net worth.[10] On the following day, Shook filed his motion requesting this Court to review the district court's order setting the amount of security required to supersede the judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 52.006(d); Tex.R.App. P. 24.4. With his motion, Shook also requested an emergency stay of all proceedings in the district court, including post-judgment discovery and further proceedings concerning his net worth, pending our disposition of his motion. We granted the stay as requested. ANALYSIS Shook challenges the district court's order on essentially four grounds. In his primary complaint, he challenges the district court's legal conclusion that the $318,000 in trial attorney's fees awarded in the judgment must be included in the calculation of the amount of security required under section 52.006, subsection (a). Shook also challenges alternative grounds asserted by the Waldens that could support the portion of the district court's order holding that $94,936.25 in security is insufficient under section 52.006, subsection (a). Shook argues that the prejudgment-interest award is not included in the calculation under section 52.006, subsection (a); that his one-year estimated duration of the appeal is reasonable as a basis for determining the amount of post-judgment interest to be secured; and that he adequately secured court costs. Standard of review We review a trial court's ruling setting post-judgment security under an abuse-of-discretion standard. See Ramco Oil & Gas Ltd. v. Anglo Dutch (Tenge) L.L.C., 171 S.W.3d 905, 909-10 (Tex.App.-Houston [14th Dist.] 2005, no pet.). In general, "abuse of discretion" means the trial court acted "without reference to any guiding rules or principles." E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). However, to the extent the trial court's ruling turns on a question of law, we review it de novo because a "trial court has no `discretion' in determining what the law is or applying *917 the law to the facts," Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992), and therefore "abuses its discretion" if it misinterprets or misapplies the law. Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex.2008); Walker, 827 S.W.2d at 840. The principal issues in this proceeding turn on a pure question of law—construction of section 52.006 of the civil practice and remedies code, as amended in 2003, and other statutes. Statutory construction presents a question of law that we review de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Our primary objective in statutory construction is to give effect to the legislature's intent. See id. We seek that intent "first and foremost" in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). "Where text is clear, text is determinative of that intent." Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh'g) (citing Shumake, 199 S.W.3d at 284; Alex Sheshunoff Mgmt. Servs. v. Johnson, 209 S.W.3d 644, 651-52 (Tex.2006)). We consider the words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). We rely on the plain meaning of the text, unless a different meaning is supplied by legislative definition or is apparent from context, or unless such a construction leads to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008) (citing Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004); Taylor v. Firemen's & Policemen's Civil Serv. Comm'n, 616 S.W.2d 187, 189 (Tex.1981); University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex.2004)); see Entergy Gulf States, Inc., 282 S.W.3d at 437 ("This general rule [that text is determinative of legislative intent] applies unless enforcing the plain language of the statute as written would produce absurd results"; also recognizing that legislative definitions of terms control over their ordinary meaning); Tex. Gov't Code Ann. § 311.011 (West 2005) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage," but "[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."). We should also read every word, phrase, and expression in a statute as if it were deliberately chosen, and likewise presume that words excluded from the statute are done so purposefully. See Gables Realty Ltd. P'ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied). Our analysis of the statutory text is also informed by the presumptions that "the entire statute is intended to be effective" and that "a just and reasonable result is intended," Tex. Gov't Code Ann. § 311.021(2), (3) (West 2005), and consideration of such matters as "the object sought to be attained," "circumstances under which the statute was enacted," legislative history, and "common law or former statutory provisions, including laws on the same or similar subjects." Id. § 311.023(1)-(4) (West 2005). Similarly, we assume that when enacting a statute, the legislature was aware of the background law and acted with reference to it. See Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex.1990). However, only when the statutory text is ambiguous "do we `resort to rules of construction or extrinsic aids.'" Entergy Gulf States, Inc., 282 S.W.3d at 437 (quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007)). Attorney's fees Shook argues that the attorney's fees awarded to the Waldens are neither "compensatory damages awarded in the judgment" nor "costs awarded in the judgment" under section 52.006, subsection (a). *918 The Waldens respond that the fees are either or both and that Shook must secure the $318,000 in trial attorney's fees and $10,000 in post-judgment attorney's fees because they are fully executable.[11] "Compensatory damages awarded in the judgment" In support of his arguments concerning both compensatory damages and costs, Shook emphasizes that section 52.006 is a product of the seminal 2003 legislation commonly referenced by its bill number, "H.B. 4." Before H.B. 4, as Shook observes, the amount of security required to supersede a money judgment was set by rule as "at least the amount of the judgment, interest for the estimated duration of the appeal, and costs." Former Tex. R.App. P. 24.2(a)(1) (eff. Sept. 1, 1997) (amended Aug. 29, 2003 and Sept. 10, 2003, eff. Sept. 1, 2003; amended Mar. 10, 2008 and Aug. 20, 2008, eff. Sept. 1, 2008). This standard permitted courts to require security for the amount of attorney's fees awarded in a judgment, at least to the extent that they were fully executable and not contingent on appeal. See Hamilton v. Hi-Plains Truck Brokers, Inc., 23 S.W.3d 442, 443 n. 1 (Tex.App.-Amarillo 2000) (per curiam order). In H.B. 4, however, the legislature added section 52.006 to the civil practice and remedies code. Subsection (a) of section 52.006 fixed the amount of security required to supersede a money judgment "equal [to] the sum of: (1) the amount of compensatory damages awarded in the judgment; (2) interest for the estimated duration of the appeal; and (3) costs awarded in the judgment." Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 7.02, sec. 52.006(a), 2003 Tex. Gen. Laws 847, 863, codified at Tex. Civ. Prac. & Rem.Code Ann. § 52.006(a) (emphases added); see also Tex.R.App. P. 24.2(a)(1) (implementing section 52.006, subsection (a)). At the same time, as Shook points out, the legislature in subsection (b) of section 52.006 capped the amount of security as the lesser of $25 million or fifty percent of the judgment debtor's net worth, see Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 7.02, sec. 52.006(b), 2003 Tex. Gen. Laws 847, 863, codified at Tex. Civ. Prac. & Rem.Code Ann. § 52.006(b); see Tex.R.App. P. 24.2(a)(1), and added the further requirement in subsection (c) that trial courts must lower the amount of security upon a showing that the judgment debtor is "likely to suffer substantial economic harm," see Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 7.02, sec. 52.006(c), 2003 Tex. Gen. Laws 847, 863, codified at Tex. Civ. Prac. & Rem.Code Ann. § 52.006(c); see Tex.R.App. P. 24.2(b); cf. Act of May 22, 1989, 71st Leg., R.S., ch. 1178, § 1, sec. 52.002(1), (2), 1989 Tex. Gen. Laws 4813, 4813-14, codified at former Tex. Civ. Prac. & Rem.Code Ann. § 52.002(1), (2) (affording trial courts discretion to reduce the required security amount upon finding that "setting the security at an amount equal to the amount of the judgment, interest, and costs would cause irreparable harm to the judgment debtor" and doing so "would not substantially decrease the degree to which a judgment creditor's recovery under the judgment would be secured"), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 7.03, 2003 Tex. Gen. Laws 847, 863. In these ways, as Shook observes, the H.B. 4 *919 amendments addressing security requirements reflected a policy shift away from a primary goal of protecting judgment creditors toward the goal of protecting judgment debtors' ability to appeal. Ramco Oil & Gas, 171 S.W.3d at 916-17; see also Elaine A. Carlson, Reshuffling the Deck: Enforcing and Superseding Civil Judgments on Appeal After House Bill 4, 46 S. Tex. L.Rev. 1035, 1038 (2005) (observing that H.B. 4 changes "reflect[ed] a new balance between the judgment creditor's right in the judgment and dissipation of the judgment's debtor's assets during the appeal against the judgment debtor's right to meaningful and easier access to appellate review"). Especially considering its legislative origins, Shook urges, the phrase "compensatory damages awarded in the judgment" in section 52.006, subsection (a)(1), reflects legislative intent to depart from prior law and exclude attorney's fees from the amount of security required to supersede a money judgment. He further relies on a definition of "compensatory damages" found in chapter 41 of the civil practice and remedies code; the longstanding general rule in Texas that attorney's fees are not recoverable as damages, but only when authorized by contract or statute; and the assertion that attorney's fees awarded under chapter 38 of the civil practice and remedies code are in the nature of a penalty rather than compensatory damages. In response, the Waldens assert that while H.B. 4 may have excluded exemplary damages from the security required on appeal, it did not change prior law with respect to attorney's fees. They urge that we follow a post-H.B. 4 case from one of our sister courts, Clearview Props., L.P. v. Property Tex. SC One Corp., 228 S.W.3d 262 (Tex.App.-Houston [14th Dist.] 2007) (per curiam order), which, they assert, holds that attorney's fees awarded under chapter 38 of the civil practice and remedies code are "compensatory damages," "costs," or both, and thus must be secured to the extent they are fully executable. The Waldens further contend that the definition of "compensatory damages" in chapter 41 of the civil practice and remedies code "has no application to this case wherein punitive damages have not been recovered." In any event, Waldens urge that attorney's fees awarded under chapter 38 are in the nature of incidental or consequential compensatory damages, not a penalty, citing language from two court of appeals opinions that have characterized such fees in that manner. See Goodyear Tire & Rubber Co. v. Portilla, 836 S.W.2d 664, 672 (Tex.App.-Corpus Christi 1992) ("The purpose of awarding attorney's fees and taxing it against the losing defendant is to make the successful plaintiff whole. The winning plaintiff is entitled to the full damages suffered as a result of the defendant's breach of contract, and the plaintiff's recovery does not bear the burden of the costs necessarily incurred in enforcing his rights under the contract."), aff'd, 879 S.W.2d 47 (Tex.1994); Crumpton v. Stevens, 936 S.W.2d 473, 476 (Tex.App.-Fort Worth 1996, no writ) ("A claim for attorney's fees under [§ 38.001] . . . is in the nature of incidental damages."). Similarly, they observe that the legislature has required that chapter 38 "be liberally construed to promote its underlying purposes," Tex. Civ. Prac. & Rem.Code Ann. § 38.005 (West 2008), in contrast to "the general rule that a statute which authorizes the recovery of attorney's fees is penal in character and must be strictly construed." Bloom v. Bloom, 767 S.W.2d 463, 471 (Tex.App.-San Antonio 1989, writ denied). To determine whether the attorney's fees awarded to the Waldens are "compensatory damages awarded in the judgment" under section 52.006, subsection (a)(1), we *920 begin with the text of that provision.[12] The legislature did not define "compensatory damages" within section 52.006 or anywhere in chapter 52. However, as Shook emphasizes, it did define that term in chapter 41 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 41.001(8) (West 2008).[13] "Compensatory damages" are defined in chapter 41 as "economic and noneconomic damages" and not "exemplary damages." Tex. Civ. Prac. & Rem.Code Ann. § 41.001(8). "Economic damages," in turn, are defined as "compensatory damages intended to compensate a claimant for actual economic or pecuniary loss" and not "exemplary damages" or "noneconomic damages." Id. § 41.001(4). "Noneconomic damages" are defined as "damages awarded for the purpose of compensating a claimant for . . . nonpecuniary losses of any kind other than exemplary damages." Id. § 41.001(12).[14] "Exemplary damages" are defined as "any damages awarded as a penalty or by way of punishment but not for compensatory purposes . . . . includ[ing] punitive damages." Id. § 41.001(5).[15] Although the Waldens dismiss the applicability of chapter 41's definitions in a case where no exemplary damages are at issue, chapter 41 plainly extends more broadly. In its current form, chapter 41 is titled "Damages," see id. ch. 41, explicitly "applies to any action in which a claimant seeks damages relating to a cause of action," id. § 41.002(a) (West 2008),[16] and contains a provision addressing recovery of certain compensatory damages, id. § 41.0105 (limitation on recovery of damages for certain medical or health-care expenses). We also observe that section 52.006 and chapter 41's definition of "compensatory damages" have common origins in H.B. 4, and it is also significant that H.B. 4 broadened the scope of chapter 41 from solely an exemplary damages regulation to its current form. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 13.01-.02, sec. 41.001, 2003 Tex. Gen. Laws 847, 886-87 (changing heading of chapter 41 from "Exemplary Damages" to "Damages," adding provision limiting recovery of certain health care expenses as economic damages, revising definitions of "economic damages" and "exemplary damages," and adding definitions of "compensatory damages" and "noneconomic damages"). In sum, Chapter 41's text and relationship to section 52.006 reflect legislative intent to incorporate chapter 41's definition of "compensatory damages" into section 52.006(a)(1)'s "compensatory damages *921 awarded in the judgment." Entergy Gulf States, Inc., 282 S.W.3d at 437 (courts are bound to follow definitions supplied by the legislature) (citing Tex. Gov't Code Ann. § 311.011(b)); see Texas Dept. of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002) ("Statutory terms should be interpreted consistently in every part of an act."); see also Carlson, supra, at 1087-88 & n. 310 (observing that chapter 41's "compensatory damages" definition is "the statutory definition of compensatory damages applicable to Texas civil actions").[17] The Waldens concede that the attorney's fees in issue would not be "noneconomic damages" as defined in chapter 41, but suggest they would be "economic damages," i.e., "damages intended to compensate [the Waldens] for actual economic or pecuniary loss." With respect to the attorney's fees awarded here, we conclude otherwise. The text of chapter 41's "economic damages" definition and its role within the chapter indicate that attorney's fees awarded under chapter 38 are not included in "economic damages." Although attorney's fees are frequently a substantial component of recoveries in civil cases, the legislature never mentioned them in any of chapter 41's definitions. See Tex. Civ. Prac. & Rem.Code Ann. § 41.001(4), (5), (8), (12); cf. Clearview, 228 S.W.3d at 263 (observing that these definitions "do not expressly exclude attorney's fees") (emphasis added); see also Carlson, supra, at 1089-90 n. 319 (observing that attorney's fees are not explicitly included in the definitions of "economic damages" and "noneconomic damages"). Moreover, "economic damages" and "noneconomic damages" within chapter 41 serve as variables in the calculation of the chapter's caps on "exemplary damages." See Tex. Civ. Prac. & Rem.Code Ann. § 41.008 (West Supp. 2009). As the Waldens emphasize, exemplary damages would not be recoverable on a contract claim like theirs, on which attorney's fees can be recovered under chapter 38, but would instead be an issue in tort cases where attorney's fees are generally not recoverable. But rather than indicating chapter 41 is irrelevant to our analysis, as the Waldens argue, this fact tends to confirm that the "compensatory damages" the legislature contemplated in chapter 41—and incorporated into section 52.006, subsection (a)(1)—would not include attorney's fees awarded under chapter 38. This construction of "compensatory damages" and "economic damages" finds further support when viewed in the statutory and jurisprudential context in which the legislature crafted these provisions. Acker, 790 S.W.2d at 301. "Texas has long followed the `American Rule' prohibiting [attorney's] fee awards unless specifically provided by contract or statute." MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex.2009) (citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex.2006)). At common law, in other words, "each party pays its own lawyers" and such fees are not ordinarily considered to be compensable losses or an element of recoverable damages. See id. at 663; cf. Clearview, 228 S.W.3d at 264 (example of contract permitting recovery of attorney's fees as damages). *922 The basis for the district court's attorney's fee award, chapter 38 of the civil practice and remedies code, authorizes recovery of reasonable attorney's fees incurred in connection with prosecuting certain claims, including contract claims, that are presented to the opposing party and not paid within thirty days thereafter. See Tex. Civ. Prac. & Rem.Code Ann. §§ 38.001-.002 (West 2008). While attorney's fees awarded under chapter 38 may be said to "compensate," "make whole," or "indemnify" a claimant for the legal expenses he incurs in prosecuting such a claim, as the Waldens and some courts of appeals have suggested, this does not mean the fees are "damages intended to compensate the claimant for actual economic or pecuniary loss" under the meaning of chapter 41. As Shook points out, chapter 38 explicitly distinguishes between the underlying claim for loss or injury and the attorney's fees the statute authorizes. See id. § 38.001 ("A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs . . . .") (emphasis added); see Huff v. Fidelity Union Life Ins. Co., 158 Tex. 433, 312 S.W.2d 493, 501 (1958) (observing that "the attorney's fees [awarded under chapter 38's predecessor] are not part of the demand or claim"). Further emphasizing the distinction, the Texas Supreme Court has relied on this statutory language in recent years in holding that breach-of-contract plaintiffs must prove some amount of damages in order to recover attorney's fees under chapter 38. See MBM Fin. Corp., 292 S.W.3d at 666 ("To recover fees under [chapter 38], a litigant must do two things: (1) prevail on a breach of contract claim, and (2) recover damages. The second requirement is implied from the statute's language: for a fee recovery to be `in addition to the amount of a valid claim,' the claimant must recover some amount on that claim.") (citations omitted); Green Int'l v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Indeed, the supreme court has also gone as far as to characterize such fees as "in the nature of a penalty, or punishment for failure to pay a just debt," as opposed to compensation for the underlying loss or injury. Huff, 312 S.W.2d at 501. These considerations persuade us that attorney's fees awarded under chapter 38 are not "compensatory damages awarded in the judgment" under section 52.006, subsection (a)(1). See also Carlson, supra, at 1089-90 n. 319 ("Under [chapter 41's] statutory definitions, neither interest nor attorney's fees are compensatory damages."). The Clearview case cited by the Waldens does not hold otherwise. See Clearview, 228 S.W.3d 262. Clearview involved a dispute under a contract that entitled the prevailing party to recover attorney's fees "as compensation." Id. at 264. The trial court's final judgment awarded one appellee, Property Texas SC One Corporation, "$141,642.91 as damages for reasonable attorney's fees" and another appellee, T. Reit L.P. "$211,599.33 as damages for reasonable attorney's fees." Id. at 263. Appellants filed a motion with the trial court to set the amount of security pending appeal as no more than $5,168.55, a figure based on "an estimate of costs" that did not include any attorney's fees. The trial court set the amount of the appellants' security for damages at $353,242.24 (the sum of the two attorney's fee awards) and security for "costs" at $5,165.55 (corresponding to appellants' estimate). See id. Appellants filed a motion in the court of appeals to reduce the amount of security to not more than $5,165.55. They argued that attorney's fees did not constitute "compensatory damages" that had to be secured, citing, like Shook, to the definitions in chapter 41 of the civil practice and remedies code. *923 See id. Appellants further argued that attorney's fees also should not be included in the amount of "costs awarded in the judgment." Id. at 264. The Clearview court upheld the trial court's order, citing the following three rationales in support: (1) attorney's fees "should be considered part of the `costs awarded in the judgment'" because "our court has previously held that attorney's fees are in the nature of costs," citing Williams v. Compressor Eng'g Corp., 704 S.W.2d 469, 474 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.); (2) the court had held in a pre-H.B. 4 family-law case that "attorney's fees awarded in the judgment (that were not for enforcement of a child-support order) were a debt that could have been suspended by the filing of a supersedeas bond," citing Roosth v. Daggett, 869 S.W.2d 634, 637 (Tex.App.-Houston [14th Dist.] 1994, no writ); and (3) "the contract between the parties provided for attorney's fees to constitute compensation." Clearview, 228 S.W.3d at 264. The court then concluded: Whether, under the facts of this case, the attorney's fees awards are in the nature of costs or damages, neither Rule 24, nor section 41.001, precludes the trial court from setting an amount, such as that set in this case, to secure this award. Id. Clearview thus did not involve attorney's fees awarded under chapter 38, as here, but fees awarded as "compensation" under an express contractual provision. And the fact that the fees were awarded under a contractual provision, furthermore, was pivotal to the court's holding that the attorney's fees were "damages" "under the facts of this case." Id. (emphasis added). Consequently, Clearview is plainly distinguishable from the present case. To the extent it is not, we decline to follow it as inconsistent with our construction of section 52.006, subsection (a)(1), detailed above. We hold that the attorney's fees awarded to the Waldens are not "compensatory damages awarded in the judgment" under section 52.006, subsection (a)(1), of the civil practice and remedies code. "Costs awarded in the judgment" Shook argues that in using the phrase "costs awarded in the judgment" in section 52.006, subsection (a)(3), the legislature was not referring to attorney's fees, but court costs that may be taxed against a party in a trial court judgment, i.e., what appears on the clerk's certified bill of costs. Tex. Civ. Prac. & Rem.Code Ann. § 31.007(b) (West 2008); Tex.R. Civ. P. 125-140. As Shook observes, these costs consist of fees and charges required by law or rule to be paid to the judicial branch or its agents, the amount of which is fixed by statute or rule. For example, Shook observes, section 31.007 of the civil practice and remedies code authorizes courts to "include in any order or judgment all costs, including the following": (1) fees of the clerk and service fees due the county; (2) fees of the court reporter for the original of stenographic transcripts necessarily obtained for use in the suit; (3) masters, interpreters, and guardians ad litem appointed pursuant to these rules and state statutes; and (4) such other costs and fees as may be permitted by these rules and state statutes. Tex. Civ. Prac. & Rem.Code Ann. § 31.007(b); see also Sterling Bank v. Willard M, L.L.C., 221 S.W.3d 121, 125 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ("`Costs' usually refer to fees and charges required by law to be paid to the courts or some of their officers, the amount of which *924 is fixed by statute or the court's rules e.g. filing and service fees."). In contrast, Shook emphasizes, attorney's fees are amounts owed to one's own lawyers, not officials or agents of the judicial branch, and are not traditionally considered "costs." See id. ("Generally, in Texas, expenses incurred in prosecuting or defending a lawsuit are not recoverable as costs, unless permitted by a statute or equitable principle."). He adds that chapter 38 of the civil practice and remedies code, the basis for the attorney's fee award here, does not purport to award attorney's fees as "costs," but instead distinguishes the two, as it does with damages. See Tex. Civ. Prac. & Rem.Code Ann. § 38.001 ("A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs. . . .") (emphasis added). In response, the Waldens again urge us to follow Clearview, which, in their view, held that attorney's fees are "costs awarded in the judgment" under section 52.006, subsection (a)(3). They further contend "costs awarded in the judgment" are not limited to court costs, but refer more broadly to "costs" in the sense of cost-shifting under chapter 38, which departs from the American Rule and authorizes the prevailing party in a breach-of-contract claim to recover money damages for his legal expenses from the losing party. In support, the Waldens emphasize that Texas's offer-of-settlement statute—like section 52.006, an H.B. 4 addition to the civil practice and remedies code[18]—defines "litigation costs" to include not only "court costs" but also attorney's fees. Tex. Civ. Prac. & Rem.Code Ann. § 42.001(5) (West 2008). They add that attorney's fees awarded under statute are similarly considered to be "costs" under the federal offer-of-settlement rule. See Fed.R.Civ.P. 68(d) ("If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made."); Marek v. Chesny, 473 U.S. 1, 7-10, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) ("plain meaning" of "costs" under rule 68 includes attorney's fees when the underlying action includes a statutory basis for attorney's fees). The legislature did not specifically define "costs awarded in the judgment" in section 52.006 or chapter 52. However, elsewhere in the civil practice and remedies code, as the parties indicate, the legislature authorized trial courts to award two types of "costs" in a judgment—"costs" under section 31.007 and "litigation costs" under the offer-of-settlement statute, chapter 42 of the code. Neither type of "costs" would include the attorney's fee award here. Section 31.007 authorizes trial courts to "include in any order or judgment all costs" and then enumerates various fees and expenses that parties pay to the court or its agents. Tex. Civ. Prac. & Rem.Code Ann. § 31.007(b). That is also the sense in which "costs" has long been used in the Texas Rules of Civil Procedure. Tex.R. Civ. P. 125-140. It is well established that these provisions authorizing trial courts to award "costs" do not in themselves authorize the award of attorney's fees. See Sterling Bank, 221 S.W.3d at 125; Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 206 (Tex.App.-Austin 1992, no writ) ("`Costs' generally do not include costs billed to the client as part of the attorney's fee for services provided.. . . We find no error in the court's *925 decision to deny appellee's requested litigation expenses which do not comport with the traditional definition of costs."); see also Carlson, supra, at 1089-90 n. 319 ("Neither interest nor attorney's fees are traditionally considered costs of court."). Nor does chapter 38 of the civil practice and remedies code authorize the award of attorney's fees as "costs," as Shook points out. See Tex. Civ. Prac. & Rem.Code Ann. § 38.001. To the contrary, as previously discussed, chapter 38 distinguishes "costs" from the attorney's fees awarded under the provision. See id. As for chapter 42, it creates a system of settlement incentives in certain suits for money damages by requiring the award of "litigation costs" against a party who rejects a settlement offer that turns out to be significantly more favorable to the party than the ultimate judgment. See generally Tex. Civ. Prac. & Rem.Code Ann. §§ 42.001-.005 (West 2008); see also Tex.R. Civ. P. 167 (implementing rules). "Litigation costs" under chapter 42 are defined as "money actually spent and obligations actually incurred that are directly related to the case in which a settlement offer is made," specifically including "(A) court costs; (B) reasonable fees for not more than two testifying expert witnesses; and (C) reasonable attorney's fees." Tex. Civ. Prac. & Rem.Code Ann. § 42.001(5). The litigation costs that may be recovered by the offering party "are limited to those litigation costs incurred by the offering party after the date the rejecting party rejected the settlement offer," id. § 42.004(c), and are capped by a formula prescribed in the statute. Id. § 42.004(d). It is unclear whether "costs awarded in the judgment" under section 52.006, subsection (a)(3), would include "litigation costs" awarded under chapter 42. We note that the legislature referred to "costs awarded in the judgment" in section 52.006, subsection (a)(3)—a term corresponding to "costs" in section 31.007 and the rules of civil procedure—while employing "litigation costs" in chapter 42, which would be consistent with intent to distinguish the two. However, even if "litigation costs" awarded under chapter 42 would be "costs awarded in the judgment" under section 52.006, subsection (a)(3), the attorney's fees at issue here were awarded to the Waldens under chapter 38 of the civil practice and remedies code, not as "litigation costs" under chapter 42. Nor could the Waldens' attorney's fee award even be included in an award of chapter 42 "litigation costs." Chapter 42 provides that a claimant who is entitled to recover "fees and costs under another law" cannot also recover those fees and costs incurred after the rejection of the settlement offer as "litigation costs." Id. § 42.004(e), (f). Consequently, the attorney's fees awarded to the Waldens would not be "costs awarded under the judgment" by virtue of being included in an award of "litigation costs." The Waldens maintain that the fact attorney's fees are included in chapter 42's definition of "litigation costs" means that attorney's fees awarded under chapter 38 should be considered "litigation costs," and by extension, "costs awarded in the judgment" under section 52.006, subsection (a)(3). That is not what chapter 42 says or does. As noted, chapter 42 specifically excludes attorney's fees awarded under "another law" from recoverable "litigation costs." Id. § 42.004(e), (f). More generally, the fact that chapter 42 includes certain attorney's fees in "litigation costs" does not reflect some sort of broad legislative recognition that attorney's fees should be considered "costs" in other contexts. Chapter 42 has a specific, narrow focus: it establishes a system of financial incentives that reward reasonable settlement efforts and punish unreasonable settlement conduct by requiring a party who rejects a *926 reasonable settlement offer to bear a portion of the litigation expenses the offering party incurs after the offer is rejected. Those litigation expenses that can be shifted—"litigation costs"—are defined and limited in a manner that reflects a balancing of policy interests in encouraging settlements while avoiding coercion, gamesmanship, or unfair windfalls for offering parties. The fact that the legislature included certain attorney's fees in "litigation costs" merely reflects its balancing of these interests. It does not imply that "costs" as a general matter include attorney's fees any more than the legislature's inclusion of other amounts in "litigation costs" (e.g., "reasonable fees for not more than two testifying expert witnesses," see Tex. Civ. Prac. & Rem.Code Ann. § 42.001(5)(B)) makes those amounts "costs" in other contexts. In sum, the concept of "litigation costs" or "costs" employed in the context of Texas's offer-of-settlement statute is unique to that provision and distinct from the "costs awarded in the judgment" under section 52.006, subsection (a)(3), which is founded on a balancing of very different policy interests. For similar reasons, we conclude that the concept of "costs" under the federal offer-of-settlement rule is likewise inapposite.[19] On the other hand, Clearview may support the Waldens' position, as the court appears to embrace the view that attorney's fees "should be considered part of the `costs awarded in the judgment.'" See 228 S.W.3d at 264. To the extent Clearview is precedent for holding that the attorney's fees awarded to the Waldens are "costs awarded in the judgment," we are not persuaded by its analysis in light of our own and respectfully decline to follow our sister court.[20] *927 Beyond this, the Waldens have repeatedly urged, relying on both Clearview and pre-H.B. 4 case law, that they are entitled to security adequate to fully protect their interest in the trial-level attorney's fees the district court awarded them. The legislature, as we have seen, has struck a different balance of interests in section 52.006, and we are bound to defer to these policy judgments. We hold that the attorney's fees awarded to the Waldens are neither "costs awarded in the judgment" nor "compensatory damages awarded in the judgment" under section 52.006, subsection (a), of the civil practice and remedies code. Consequently, they are not included in the amount of security required of Shook to suspend enforcement of the judgment pending appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 52.006(a). Because the district court's order setting the amount of security at $257,014.50 plus court costs rests upon a contrary legal conclusion, it is an "abuse of discretion." See Perry Homes, 258 S.W.3d at 598; Walker, 827 S.W.2d at 840. We now consider whether the portion of the court's order determining that $94,936.25 is insufficient security under section 52.006, subsection (a), can be affirmed on any of the other grounds the Waldens have presented. Prejudgment interest The parties join issue as to whether the prejudgment interest awarded in the judgment is "compensatory damages awarded in the judgment" within the meaning of section 52.006, subsection (a)(1).[21] Our disposition of this issue ultimately turns on whether the prejudgment-interest award falls within the definition of "economic damages" under chapter 41 of the civil practice and remedies code, i.e., whether it is "compensatory damages intended to compensate a claimant for actual economic or pecuniary loss" and not "exemplary damages." Tex. Civ. Prac. & Rem.Code Ann. § 41.001(4), (8). Shook argues that it is not, citing pre-H.B. 4 case law holding that prejudgment interest was not included in "actual damages" (the term used in the former version of chapter 41) that were the basis for former chapter 41's exemplary damages caps. See Texas Health Enters., Inc. v. Geisler, 9 S.W.3d 163, 169 (Tex. App.-Fort Worth 1999, pet. dism'd) ("Case law is clear that prejudgment interest is not part of a plaintiff's `actual damages' and, thus, are not included in any computation of the punitive damages cap."). The district court awarded prejudgment interest under common-law or equitable principles. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex.1998); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex.1985). The Texas Supreme Court has long recognized that such interest is a form of damages—in fact, it was historically known as "interest as damages" to distinguish it from "interest eo nomine" specifically authorized under a contract or statute. See, e.g., Phillips Petrol. Co. v. Stahl Petrol. Co., 569 S.W.2d 480, 483, 485-86 (Tex.1978). The award of prejudgment interest as damages derived from the concept that a judgment debtor wrongfully deprives the judgment creditor of the amount of damages ultimately awarded in the judgment between the time the damages accrue and the date of judgment. See Cavnar, 696 S.W.2d at 552-54. *928 It is intended to compensate the judgment creditor for the opportunity cost of the damages the judgement debtor, in theory, wrongfully withheld from the judgment creditor and with which the judgment debtor could unjustly enrich himself in the interim. See Johnson & Higgins, 962 S.W.2d at 528 ("Prejudgment interest is `compensation allowed by law as additional damages for lost use of the money due as damages during the lapse of time between the accrual of the claim and the date of judgment.'"); Stahl Petrol. Co., 569 S.W.2d at 485. As such, prejudgment interest awarded under common-law or equitable principles comes within chapter 41's "economic damages" definition because it is a form of damages intended to compensate for a form of economic or pecuniary loss recognized in Texas law. See Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 814 (Tex.2006) (rejecting argument that statutory requirement of UIM coverage for "all sums which [the insured] shall be legally entitled to recover as damages. . . because of bodily injury or property damage" excluded prejudgment interest, reasoning that such interest "constitutes additional compensatory damages for the insured's bodily injury and property damage"). As Shook emphasizes, there is case law holding that prejudgment interest could not be included in the "actual damages" to which former chapter 41's exemplary damage cap multipliers were applied. See, e.g., Qwest Commc'ns Int'l, Inc. v. AT & T Corp., 114 S.W.3d 15, 36-38 (Tex.App.-Austin 2003), rev'd on other grounds, 167 S.W.3d 324 (Tex.2005); Geisler, 9 S.W.3d at 169; Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 759 (Tex.App.-Houston [14th Dist.] 1998, no pet.). This limitation derives from the prohibition—now codified in section 41.007 of chapter 41—against awarding prejudgment interest on exemplary damages. Tex. Civ. Prac. & Rem.Code Ann. § 41.007 (West 2008) ("Prejudgment interest may not be assessed or recovered on an award of exemplary damages."); see also Cavnar, 696 S.W.2d at 555-56 (crafting common-law rule that prejudgment interest cannot be awarded on punitive damages, in view that such interest went beyond indemnifying plaintiff for defendant's withholding of damages before judgment); Vail v. Texas Farm Bureau Mut. Ins. Co., 754 S.W.2d 129, 137 (Tex.1988) (extending rationale to bar prejudgment interest on treble damages under the DTPA and Insurance Code). The Texas Supreme Court has reasoned that these prohibitions against the award of prejudgment interest on exemplary or additional damages likewise prohibit the inclusion of prejudgment interest in the "actual damages" that are trebled under the DTPA and Insurance Code because including interest in the baseline figure that is trebled would have the same mathematical effect as an award of prejudgment interest on treble damages. See St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 54 (Tex.1998) (per curiam) ("Trebling the sum of damages and interest is equal to the sum of treble damages and treble interest: in other words, 3(D + I) = 3D + 3I."). The cases on which Shook relies have extended this rationale to hold that prejudgment interest also could not be included in the "actual damages" that were multiplied to yield former chapter 41's exemplary damages cap because doing so would have the same mathematical effect as a prohibited award of prejudgment interest on punitive damages. Qwest Commc'ns Int'l, Inc., 114 S.W.3d at 37-38 ("Adding prejudgment interest to the award of economic damages and then doubling the sum would be no different than adding two times the economic damages and two times the prejudgment *929 interest to compute the final award."); Geisler, 9 S.W.3d at 169 ("Adding prejudgment interest to the actual damages award and then imposing the statutory cap on this aggregate amount yields the same result forbidden by the supreme court when it said prejudgment interest could not be awarded on damages."); Seminole Pipeline Co., 979 S.W.2d at 759. The rationale of these decisions may imply that section 41.007 would independently limit or preclude prejudgment interest from being included in the baseline to which chapter 41's multiplier is applied to calculate the current exemplary damage caps. Regardless, we do not believe that any such limitation deriving from section 41.007 would change what the plain text of section 41.001's definitions of "compensatory damages" and "economic damages" mean, as they are incorporated into section 52.006, subsection (a)(1). As previously explained, these definitions encompass the prejudgment interest awarded here, and we are bound to give them effect. We conclude that the prejudgment interest awarded by the district court is "compensatory damages awarded in the judgment" that Shook is required to secure under section 52.006, subsection (a). Amount of court costs The parties further join issue as to whether Shook fully secured the amount of court costs awarded in the judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 52.006(a)(3). In dispute is whether the amount of court costs were $345.00, which Shook assumed when calculating his deposit, or $1,930.00, as the Waldens contend. The record reflects that this discrepancy stems from the Waldens' including a clerk's record fee of $1,585.00 in their calculation. This is a cost on appeal, not a "cost awarded in the judgment" of the district court. See Tex. R.App. P. 51.1(a). The clerk's record fee is thus not included in amount Shook must secure under section 52.006(a), subsection (3). Consequently, Shook sufficiently secured "costs awarded in the judgment." Post-judgment interest Finally, the parties join issue as to whether Shook's estimate of a one-year duration of the appeal is reasonable for purposes of securing estimated post-judgment interest, or whether, as the Waldens contend, an estimate of two years is appropriate. See Tex. Civ. Prac. & Rem.Code Ann. § 52.006(a)(2) (security amount must include "interest for the estimated duration of the appeal"). The Waldens have also complained that Shook failed to secure estimated post-judgment interest on the amount of prejudgment interest, trial attorney's fees, post-judgment trial-level attorney's fees, and "costs associated with professional services." We agree with the Waldens that Shook was required to secure the amount of post-judgment interest on prejudgment interest, trial and post-judgment attorney's fees, and "costs associated with professional services." Section 52.006, subsection (a)(2), requires Shook to secure the post-judgment interest that is estimated to accrue during the pendency of the appeal, not merely the estimated post-judgment interest on the contract damages or compensatory damages. This additional amount of post-judgment interest that Shook has not yet secured totals $17,489.01. We hold, however, that security for one year of post-judgment interest would comply with section 52.006, subsection (a)(2). If security to cover post-judgment interest for a longer period becomes warranted as the appeal progresses, the district court retains jurisdiction to revisit *930 the matter at that juncture. See Tex. R.App. P. 24.3(a)(2). CONCLUSION We affirm the district court's order in part and reverse in part. We hold that Shook was not required to secure the amount of attorney's fees awarded in the judgment, that he sufficiently secured the amount of costs, and that his one-year estimate of the appeal's duration is sufficient to comply with section 52.006, subsection (a)(2). However, we also hold that Shook is required to secure an additional $11,189.05 for the prejudgment interest awarded in the judgment, plus another $17,489.01 for post-judgment interest, for a total of $123,614.31 ($28,678.06 more than his prior deposit of $94,936.25) in order to suspend enforcement of this judgment pending appeal. Enforcement of the judgment shall remain suspended for twenty days after the date of this order to afford Shook the opportunity to comply or seek relief under the limitations in section 52.006, subsections (b) or (c). See Tex.R.App. P. 24.4(e). We lift our stay on the district court's proceedings with the exception of post-judgment discovery, which will remain stayed during the aforementioned twenty-day period. See Tex.R. Civ. P. 621a. Any further district court proceedings shall be consistent with this order. NOTES [1] The judgment awarded $11,112.33 "as of June 29, 2009, with an earned daily interest in the amount of $10.96 per day after June 29, 2009." The district court ultimately signed the judgment on July 7. [2] Jaehne and the Waldens have also filed notices of appeal. [3] It does not appear that Jaehne has attempted to supersede the judgment, and he is not a party to the present dispute regarding the amount of security required to do so. [4] Although the Hon. H.R. Towslee signed the judgment from which the underlying appeal is taken, the Hon. Reva Towslee-Corbett presided over the post-judgment proceedings regarding the security amount and related disputes. [5] $80,000 × .05 = $4,000. [6] Shook conceded "for the limited purpose of determining his supersedeas deposit amount" that the $10,591.25 the district court awarded as "costs associated with professional services" were "costs awarded in the judgment" that he was required to secure under section 52.006, subsection (a)(3). [7] The Waldens conceded that Shook was not required to secure the conditional appellate attorney's fees, citing pre-2003 case law holding that such fees were not required to be secured pending appeal because the fees did not become fully executable until the events on which they were conditioned occurred. See Hamilton v. Hi-Plains Truck Brokers, Inc., 23 S.W.3d 442, 443 n. 1 (Tex.App.-Amarillo 2000) (per curiam order). Shook characterizes the Waldens' assertions as also conceding that the $10,000 in attorney's fees awarded for post-judgment proceedings were not required to be secured. We disagree with Shook's characterization of the Waldens' arguments. [8] In this connection, the Waldens also filed a motion to disqualify Shook's counsel on the asserted ground that one of the affidavits on which Shook relied consisted of expert testimony on net worth by a partner in counsel's firm. [9] In fact, the reporter's record from the hearing reflects that the district court opined that "attorney's fees should be included" in the amount of security required under section 52.006, subsection (a)(1). The court did not mention any of the other amounts in dispute. The court then attempted to apply the fifty-percent cap under section 52.006, subsection (b) based on the $514,029.00 net worth figure Shook had claimed in his affidavit, yielding the $257,014.05 figure. We note that the district court actually ordered that Shook secure an amount equal to fifty percent of his net worth as represented in his affidavit, $257,014.50, plus "[c]osts, including but not limited to Jury costs," awarded in the judgment. It is the total amount of security, including "costs awarded in the judgment," that is capped at the lesser of fifty percent of the judgment debtor's net worth or $25 million. See Tex. Civ. Prac. & Rem.Code Ann. § 52.006(a)-(b) (West 2008); Tex.R.App. P. 24.2(a). [10] The court emphasized that Shook's affidavit concerning his net worth was "all I have in front of me" in the way of evidence on that issue. [11] Again, the Waldens concede that the contingent appellate attorney's fees need not be secured because they are not yet fully executable. Shook argues in the alternative that the trial-level, post-judgment attorney's fees are also contingent, like the appellate attorney's fees, and need not be secured even under the Waldens' analysis. Because we conclude below that none of the attorney's fees awarded in the judgment are required to be secured under section 52.006, subsection (a), we need not address this contention. [12] See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh'g); City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008). [13] See Entergy Gulf States, Inc., 282 S.W.3d at 437 (recognizing that legislative definitions of terms control over their ordinary meaning); Tex. Gov't Code Ann. § 311.011 (West 2005). [14] The definition specifically lists "physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, [and] injury to reputation" as examples of the "nonpecuniary losses . . . other than exemplary damages" that would be "noneconomic damages." [15] Chapter 41 also defines a subcategory of "compensatory damages," "future damages," which are defined as "damages that are incurred after the date of the judgment" and specifically exclude "exemplary damages." Tex. Civ. Prac. & Rem.Code Ann. § 41.001(9) (West 2008). [16] And a money judgment that included "compensatory damages," as contemplated in section 52.006, subsection (a)(1), would necessarily be one in which the claimant had sought damages relating to a cause of action. [17] In the alternative, we would look to the plain meaning of "compensatory damages," City of Rockwall, 246 S.W.3d at 625-26, and this would not appear to differ substantially from the legislative definition in chapter 41. See Black's Law Dictionary 270 (Abr. 6th ed. 1991) (defining "compensatory damages" as damages that will "compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury"). [18] See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 2.01, 2003 Tex. Gen. Laws 847, 850-52. [19] The Waldens also assert that "the post-judgment interest statute, which references `costs' but not `attorney's fees,' has always been interpreted to apply to attorney's fees incurred at the trial court level in a breach of contract action." However, this does not support their view that "costs" include attorney's fees. The Waldens rely on section 304.003 of the finance code, which provides, "A money judgment of a court of this state . . . including court costs awarded in the judgment and prejudgment interest, if any, earns postjudgment interest in the rate determined under this section." Tex. Fin.Code Ann. § 304.003(a) (West 2006). Attorney's fees would be included in the "money judgment" component of that definition. [20] Clearview does not extensively analyze section 52.006, subsection (a), but cites one of its own decisions from 1986 for the proposition that "our court has previously held that attorney's fees are in the nature of costs." Clearview Props., L.P. v. Property Tex. SC One Corp., 228 S.W.3d 262, 264 (Tex.App.-Houston [14th Dist.] 2007) (per curiam order) (citing Williams v. Compressor Eng'g Corp., 704 S.W.2d 469, 474 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.)). The issue in Williams was whether the trial court had erred in awarding attorney's fees to an employer who had obtained injunctive relief to enforce non-compete and non-disclosure provisions of an employment agreement. The appellant employee argued that the trial court had modified the agreement because it was unreasonable in geographic scope and attempted to rely on precedent that the employer, while able to obtain injunctive relief, could not recover "damages" from the employee's conduct prior to the court's order. Williams, 704 S.W.2d at 474. The employee urged the court of appeals to apply and extend this limitation on "damages" awards to bar the employer's attorney's fee award. The court of appeals held that this rule was inapplicable because the employee had not claimed the contract was unreasonable, then added, "Further, attorney's fees are in the nature of costs, not damages." Id. (citing 20 Am. Jur. 2d Costs § 72 (1965)). The Williams court's statement that "attorney's fees are in the nature of costs" was arguably unnecessary to its holding that attorney's fees could be recovered in the action. On the other hand, Williams's characterization of attorney's fees as "not damages" may provide some additional support for our holding that the attorney's fees awarded to the Waldens are not "compensatory damages awarded in the judgment." [21] The Waldens do not assert that prejudgment interest would constitute "costs awarded in the judgment." See Tex. Civ. Prac. & Rem.Code Ann. § 52.006(a)(3). Similarly, they acknowledge that "interest for the estimated duration of the appeal," id. § 52.006(a)(2), refers to post-judgment interest.

643 F.3d 451 (2011) UNITED STATES of America, Plaintiff-Appellee, v. Martino MOORE, Defendant-Appellant. No. 09-5935. United States Court of Appeals, Sixth Circuit. Argued: January 21, 2011. Decided and Filed: June 1, 2011. *452 ARGUED: David M. Bell, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. Daniel T. French, Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: David M. Bell, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. Daniel T. French, Assistant United States Attorney, Memphis, Tennessee, for Appellee. Before: MARTIN and STRANCH, Circuit Judges; THAPAR, District Judge.[*] *453 OPINION THAPAR, District Judge. Defendant Martino Moore, a four-time convicted felon, possessed a firearm one night in 2007. That event carried with it serious ramifications. It meant as an Armed Career Criminal he was subject to a mandatory minimum penalty of 180 months' imprisonment. Moore argues on appeal that the imposition of this mandatory minimum sentence, as applied to him, violates the Eighth Amendment. We disagree and thus affirm. I. On March 9, 2007, Memphis police responded to a call about an assault. At the scene, police interviewed Precious Jackson. She claimed that her boyfriend Moore beat her, pointed a firearm at her, and threatened to kill her. Two witnesses informed the officers that they had seen Moore beat Jackson and that he had a firearm. But neither witness saw Moore point the gun at Jackson. The police located Moore near the scene with the firearm, an AMT.22 caliber semi-automatic pistol, still in his possession. They arrested him without incident. Moore explained that the fight erupted when Jackson took his cell phone. He claimed that he took the gun away from her during the fight, but he denied hitting or pointing the gun at her. On February 15, 2008, a federal grand jury in the Western District of Tennessee indicted Moore for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Moore's attorney requested that Moore undergo a competency evaluation. On June 3, 2008, doctors at the Federal Medical Center in Kentucky diagnosed Moore with mild mental retardation[1] but concluded that he was nevertheless competent to stand trial. The doctors found that Moore had a factual and rational understanding of the proceedings against him and retained the ability to consult with his attorney. Moore did not challenge these findings and later pleaded guilty under a written plea agreement. Moore's Presentence Report listed two violent felonies and two serious drug felonies: (1) a 1994 conviction for aggravated burglary; (2) a 1997 conviction for criminal attempt to commit aggravated burglary; (3) a 2000 conviction for possession of crack cocaine with intent to manufacture, deliver, or sell; and (4) another 2000 conviction for possession of crack cocaine with intent to manufacture, deliver, or sell. PSR, ¶¶ 25, 26, 28, 30. As a result, he qualified as an "Armed Career Criminal" under U.S.S.G. § 4B1.4(b)(3)(A) and 18 U.S.C. § 924(e). He also received a four-level enhancement for being a felon in possession of a firearm in connection with another felony offense—aggravated assault. His guideline range was 188-235 months, with a statutory minimum of 180 months under § 924(e). Moore objected to the four-level enhancement at the sentencing hearing. Because the United States could not locate Ms. Jackson to confirm whether Moore had in fact pointed the gun at her or hit her with the gun, it agreed that Moore's offense level should be reduced, with a new corresponding guideline range of 151-188 months. But under § 924(e), the mandatory minimum sentence still stood at 180 months. Moore's attorney told the court that he knew of no grounds permitting the court to go below the 180-month minimum. The district court judge remarked that, if he had the authority to do so, he *454 would consider imposing a sentence below the statutory minimum due to the circumstances of the offense and Moore's mental deficiencies. R. 49 at 32. He nevertheless acknowledged that he did not possess that authority and proceeded to sentence Moore to 180 months' imprisonment. Moore filed a timely appeal. II. Moore argues that his mandated minimum sentence of fifteen years' imprisonment violates the Eighth Amendment's ban on cruel and unusual punishment. At the heart of his argument is the belief that a unique mitigating factor—his reduced culpability resulting from mental retardation—transforms an otherwise constitutional sentence into an unconstitutional one. In United States v. Tucker, we held that "[i]mposing a mandatory minimum sentence on a defendant with limited mental capabilities does not violate the Eighth Amendment ban against cruel and unusual punishment." 204 Fed.Appx. 518, 521 (6th Cir.2006). We see no reason to depart from Tucker. Further, all of the circumstances of this case, including Moore's mildly diminished mental capacity, convince us that the district court's sentence was not grossly disproportionate to the crime committed. A. As an initial matter, "[a] constitutional challenge to a sentence is a question of law and reviewed de novo." United States v. Jones, 569 F.3d 569, 573 (6th Cir.2009) (quoting United States v. Marks, 209 F.3d 577, 583 (6th Cir.2000)). While it appears that Moore may not have raised this issue below, we need not decide whether plain error review is appropriate because his argument fails even under de novo review. B. The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. Moore is correct that the Supreme Court has interpreted the Eighth Amendment to contain a "narrow proportionality principle." Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); United States v. Layne, 324 F.3d 464, 474 (6th Cir.2003). But that interpretation "does not require strict proportionality between crime and sentence." Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring) (citing Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)); see also Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (Eighth Amendment "prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime"); Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (Eighth Amendment prohibits "grossly disproportionate" sentences); Weems v. United States, 217 U.S. 349, 371, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (Eighth Amendment prohibits "greatly disproportioned" sentences) (quoting O'Neil v. Vermont, 144 U.S. 323, 340, 12 S.Ct. 693, 36 L.Ed. 450 (1892) (Field, J., dissenting)). Nor does it require consideration of a defendant's mitigating factors. Harmelin, 501 U.S. at 995, 111 S.Ct. 2680. Rather, "only an extreme disparity between crime and sentence offends the Eighth Amendment." Layne, 324 F.3d at 474 (quoting Marks, 209 F.3d at 583). While we have traditionally not engaged in proportionality review when the sentence is a term of years, see United States v. Thomas, 49 F.3d 253, 261 (6th Cir.1995), Justice Kennedy's concurrence *455 in Harmelin has slightly opened the door to such analysis, see United States v. Hughes, 632 F.3d 956, 960 n. 2 (6th Cir. 2011). This analysis begins with a comparison of the gravity of the offense and the severity of the sentence. Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring). The comparison here simply does not lead to an inference of gross disproportionality. Moore's prior qualifying sentences included two violent felonies involving aggravated burglary and two involving distribution of crack cocaine. On the night of his arrest in the present matter, witnesses reported seeing Moore beat his girlfriend while holding a firearm. His were not victimless, nonviolent crimes. Despite all this, Moore actually received the minimum sentence under the statute. And "[a] sentence within the statutory maximum set by statute generally does not constitute `cruel and unusual punishment.'" Layne, 324 F.3d at 474 (quoting Austin v. Jackson, 213 F.3d 298, 302 (6th Cir.2000)). Contrary to Moore's claim, this sentence did account for his mental retardation. Even though the guidelines authorized a sentence up to 188 months, the statute imposed no such cap. See Custis v. United States, 511 U.S. 485, 487, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (noting that § 924(e) authorizes the imposition of a life sentence). Here, the district court sentenced him at the very bottom of the guideline range, expressly noting Moore's condition while pronouncing his sentence. R. 49 at 31-32. But even if the district court had not taken account of his mental retardation, the imposition of a mandatory sentence without considering mitigating factors does not, as Moore claims, run afoul of the Eighth Amendment. In Harmelin v. Michigan, the Supreme Court upheld a mandatory life sentence for the possession of 650 grams of cocaine even where the state court gave no consideration to the defendant's felony-free record. 501 U.S. at 995, 111 S.Ct. 2680. The Court specifically rejected the petitioner's "required mitigation" claim, refusing to extend the "individualized capital-sentencing doctrine" to a mandatory sentence of life in prison without parole. Id. The argument for requiring consideration of the defendant's mitigating factors is no stronger here. The acknowledgment in Atkins v. Virginia that mentally retarded defendants are "categorically" less culpable than average criminals likewise fails to render this statutory penalty unconstitutional. 536 U.S. 304, 316, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). As this Court recognized in Tucker, Atkins dealt specifically with the death penalty. Tucker, 204 Fed.Appx. at 521-22. And, as this and many other courts have held, death is simply different. Getsy v. Mitchell, 495 F.3d 295, 306 (6th Cir.2007) (en banc) ("It is now also well settled that the penalty of death is different in kind from any other punishment imposed under our system of justice."). The death penalty is "unique in its total irrevocability," "its rejection of rehabilitation of the convict as a basic purpose of criminal justice," and "its absolute renunciation of all that is embodied in our concept of humanity." Harmelin, 501 U.S. at 995-96, 111 S.Ct. 2680 (quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring)). The same cannot be said of a statutorily-mandated sentence of fifteen years. Further, Atkins did not offer a blanket exemption from ordinary punishments to the mentally handicapped or cast aside mandatory minimum sentences. Rather, the Court recognized that mentally retarded defendants face a special risk of wrongful execution because they may have difficulties assisting their counsel, they are *456 often poor witnesses, and their demeanor may convey an "unwarranted impression of lack of remorse for their crimes." Atkins, 536 U.S. at 320-21, 122 S.Ct. 2242. Also, concerns about culpability were uniquely acute in the context of death. Evidence showed that mentally retarded individuals often act on impulse rather than with premeditation. Id. at 318, 122 S.Ct. 2242. But these deficiencies did not warrant their exemption from punishment. Id. Justice Stevens's introductory line in Atkins resolved any doubt on this question: "Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes." Id. at 306, 122 S.Ct. 2242. This does not mean that a defendant's culpability is irrelevant in non-capital cases. In considering whether a punishment is grossly disproportionate, culpability plays a role. Solem, 463 U.S. at 293, 103 S.Ct. 3001. For example, a murder-by-contract may be viewed more seriously than other types of murder. Id. at 293-94, 103 S.Ct. 3001. A juvenile's reduced culpability most certainly played a role in Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011, 2026, 176 L.Ed.2d 825 (2010). And even here, Moore's diminished culpability played a role in the district court's decision to impose the minimum penalty under the statute. Still, we cannot say Moore's mildly diminished mental capacity warrants a finding of gross disproportionality. Fifteen years is by any measure a considerable amount of time. But while "[s]evere, mandatory penalties may be cruel,. . . they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history." Harmelin, 501 U.S. at 994-95, 111 S.Ct. 2680. In general, Eighth Amendment jurisprudence grants "substantial deference" to the legislatures who determine the types and limits of punishments. Id. at 999, 111 S.Ct. 2680 (Kennedy, J., concurring). It is settled that legislatures may define criminal punishments without giving courts sentencing discretion. Id. at 1006, 111 S.Ct. 2680 (citing Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)). In fact, this Court has previously held that the very punishment Moore received—fifteen years under the Armed Career Criminal Act—withstands Eighth Amendment review as applied to the facts of those cases. United States v. Warren, 973 F.2d 1304, 1311 (6th Cir.1992); United States v. Pedigo, 879 F.2d 1315, 1320 (6th Cir.1989). Other courts of appeals have reached the same conclusion. See, e.g., United States v. Cardoza, 129 F.3d 6, 18 (1st Cir.1997); United States v. Presley, 52 F.3d 64, 68 (4th Cir.1995); United States v. Hayes, 919 F.2d 1262, 1266 (7th Cir.1990); United States v. Baker, 850 F.2d 1365, 1372 (9th Cir.1988); United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir.2000). And we are aware of no court of appeals decision that has struck down the Armed Career Criminal Act as violative of the Eighth Amendment. Because a "threshold comparison" of the gravity of Moore's offense and the severity of his sentence does not reveal an inference of gross disproportionality, we need not engage in the second step of the proportionality analysis by comparing his sentence with those of offenders in this and other jurisdictions. Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring). C. Moore's suggestion that his sentence is rendered unconstitutional by the *457 decision in Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010), is also unavailing. The Graham Court's holding was narrow: The Eighth Amendment prohibits the sentence of life without parole for juvenile offenders who do not commit homicide. Id. at 2030. In adopting a categorical approach, the Court drew a line exempting a specific class of offender (juveniles who do not commit homicide) from a specific punishment (life without the possibility of parole). But this approach does not apply in every Eighth Amendment challenge. To begin, the penalty was unusually grave. Along with death sentences, sentences of life without the possibility of parole are unique in their severity. Id. at 2027 (citing Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680). And that grave penalty carried with it unique consequences for the particular defendant—a juvenile offender. Id. at 2028. His young age meant that he would spend longer behind bars than similar adult offenders sentenced to life. Id. What's more, the penological theories underlying the imposition of life-without-parole sentences—retribution, deterrence, incapacitation, and rehabilitation—did not hold up as applied to Graham. Id. Such a sentence would in essence require the sentencing court to conclude that the juvenile offender had no possibility of rehabilitation. While defendants like Graham deserve to be separated from society for some time, "it does not follow that [they will] be a risk to society for the rest of [their lives]." Id. at 2029. The unique concerns that prompted the Supreme Court to closely scrutinize the sentence in Graham are not present here. Most significantly, Moore's fifteen-year sentence is vastly lighter. Unlike a juvenile non-homicide offender sentenced to life without parole, Moore will likely see the outside of a prison. He has hope for eventual release in a way that Graham did not. Also, the rehabilitation opportunities not available to juvenile non-homicide offenders sentenced to life without parole will be available to Moore. Moore can take advantage of the rehabilitative services of which the Court spoke in Graham. Id. at 2030. Further, Moore is an adult. The Graham Court noted that real differences exist between juvenile and adult minds. Id. at 2026. It recognized that juveniles possess the ability to change, with their actions less likely revealing "evidence of `irretrievably depraved character' than . . . the actions of adults." Id. (citing Roper v. Simmons, 543 U.S. 551, 570, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)). Like a juvenile, a mentally retarded defendant may not have the same mental capabilities as those of a fully functioning adult. But the real concern in Graham went beyond the basic differences in juvenile and adult minds. The concern was that a sentence of life without parole could not account for the possibility that the juvenile's mind would grow and change over time. A term-of-years sentence such as Moore's would not present this same dilemma. Thus, the Supreme Court's concerns in Graham are simply not present here. III. Moore's Eighth Amendment challenge to his sentence fails even under a de novo standard of review. We therefore AFFIRM the sentence of the district court. NOTES [*] The Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting by designation. [1] Like the briefs and doctors, we use the term "mental retardation" in order to be medically precise. We mean no disrespect by using the term.

280 B.R. 703 (2001) In re Jamie Earl JACKSON, Sr., Delia Deshone Jackson, Debtors. No. 00-13450-MAM-13. United States Bankruptcy Court, S.D. Alabama. March 19, 2001. Lacey Robertson, Mobile, AL, for Debtor. James D. Brooks, Mobile, AL, for Dennis Ellis Used Cars, Inc. ORDER SUSTAINING THE OBJECTION OF DENNIS ELLIS USED CARS, INC. TO CONFIRMATION MARGARET A. MAHONEY, Chief Judge. This matter is before the Court on the objection to confirmation of Dennis Ellis Used Cars, Inc. ("Ellis"). The Court has jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Order of Reference of the District Court. This is a core proceeding pursuant to 28 U.S.C. § 157(b) and the Court has the authority to enter a final order. For the reasons indicated below, the Court is sustaining Ellis' objection to confirmation. FACTS On July 10, 2000, the debtors, Jamie and Delia Jackson, purchased a 1994 Pontiac Grand Prix from Ellis. The Jacksons filed for relief pursuant to chapter 13 of the Bankruptcy Code on August 30, 2000. Debtor's confirmed plan listed the total secured claim of Ellis in the amount of $4,900. To date Ellis has only received *704 $12.31 for its claim. The Jacksons have returned the vehicle to Ellis and have proposed an amended plan stating that the vehicle is to be surrendered to Ellis "in full satisfaction of all debt." Ellis objects to the amended plan on the grounds that the value of the vehicle has decreased more than the payments they have received. The Jacksons have put over 10,000 miles on the vehicle[1] and have only paid $12.31. Both the Jacksons' confirmed plan and proposed amended plan propose to pay unsecured creditors 0%. Ellis objects to confirmation of this plan on the basis that any unpaid deficiency in its secured claim after the sale of the vehicle should be paid in full. LAW The issue before the Court is whether after the surrender and sale of the collateral securing Ellis's claim, the balance of the claim retains the status of secured or is reclassified as an allowed unsecured claim. Section 1329 of the Bankruptcy Code states: (a) At any time after confirmation of the plan but before the completion of payments under such plan, the plan may be modified, upon the request of the debtor, the trustee, or the holder of an allowed unsecured claim, to — (1) increase or reduce the amount of payments on claims of a particular class provided for by the plan; (2) extend or reduce the time for such payments; or (3) alter the amount of the distribution to a creditor whose claim is provided for by the plan to the extent necessary to take account of any payment of such claim other than under the plan. There is a split of authority among the districts as to whether § 1329 allows a debtor to modify a confirmed plan to surrender collateral and reclassify any deficiency as unsecured. Some courts hold that § 1329(a)(1) allows debtors to reduce the amount of a claim. The amount of the secured claim after surrender and sale would be reduced to zero and the deficiency reclassified as unsecured. See, e.g., In re Conley, 2000 WL 1805324 (Bankr.E.D.Va.2000); In re Townley, 256 B.R. 697 (Bankr.D.N.J.2000); In re Day, 247 B.R. 898 (Bankr.M.D.Ga.2000); In re Rimmer, 143 B.R. 871 (Bankr.W.D.Tenn.1992); In re Jock, 95 B.R. 75 (Bankr.M.D.Tenn.1989). Other courts, including the Sixth Circuit Court of Appeals,[2] hold that § 1329(a)(1) does not allow the debtor to alter, reduce or reclassify a previously allowed secured claim, but only affords the debtor a right to request alteration of the amount or timing of specific payments. See, e.g., Chrysler Financial Corp. v. Nolan (In re Nolan), 232 F.3d 528 (6th Cir.2000); In re Smith, 259 B.R. 323 (Bankr.S.D.Ill.2001); In re Goos, 253 B.R. 416 (Bankr.W.D.Mich.2000); In re Cruz, 253 B.R. 638 (Bankr.D.N.J.2000); In re Meeks, 237 B.R. 856 (Bankr.M.D.Fla.1999); In re Coleman, 231 B.R. 397 (Bankr.S.D.Ga.1999). The Sixth Circuit in Chrysler Financial Corp. v. Nolan (In re Nolan), 232 F.3d 528 (6th Cir.2000), based its decision on five grounds: (1) section 1329(a) must be satisfied before applying § 1329(b)(1), which directs the application of other provisions of the Code that pertain to requirements of a plan and effect of confirmation; (2) reducing the secured claim would violate *705 § 1325(a)(5)(B), which mandates that a secured claim is fixed in amount and status and must be paid in full once it has been allowed; (3) reclassification would contravene § 1327(a) which directs that the provisions of a confirmed plan bind the debtor and each creditor; (4) section 1329(a) permits only the debtor, the trustee, and holders of unsecured claims to bring a motion to modify a plan; an undersecured creditor cannot seek to reclassify its claim in the event that collateral appreciated; and (5) the plain language of § 1329 only allows a plan to be modified to increase or reduce the amount of "payments" on claims; amended plans cannot increase or reduce the amount or priority of the claims themselves. This Court finds the reasoning of the Sixth Circuit in Nolan persuasive. The decision is a harsh one for debtors. It will force them to make decisions about the retention or surrender of vehicles before confirmation. Otherwise, deficiency payments after surrender will continue to be secured debts. This is a major departure from the Court's prior practice. Debtors will have to be very careful in formulating plans. Otherwise, if they wish to surrender collateral, they may be forced to dismiss their cases and refile to insure unsecured status for postconfirmation deficiency claims.[3] Based upon the language of the Code, the Court believes the conclusion is the only logical one. THEREFORE, IT IS ORDERED AND ADJUDGED that the objection of Dennis Ellis Used Cars, Inc. is sustained and confirmation of the amended plan is DENIED. NOTES [1] This information was proffered by the attorney for Ellis. No testimony was taken. The Court is taking the information as fact for purposes of this hearing only. [2] This Court is aware of no other Court of Appeals that has addressed this issue. [3] This decision means chapter 13 debtors should never voluntarily surrender collateral postconfirmation — whether through a plan or relief from stay — without a clear understanding with the creditor about the status of any deficiency claim.

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-41327 through 01-41335 No. 01-41366 (Consolidated) No. 01-11481 (Consolidated) No. 01-51209 (Consolidated) No. 01-51241 (Consolidated) BILLY ARNOLD, JR., ET AL., Plaintiffs - Appellees, VERSUS GARLOCK, INC., Defendant - Appellant. Appeals from the United States District Court for the Southern District of Texas, Corpus Christi December 28, 2001 Before DeMOSS, PARKER and DENNIS, Circuit Judges ROBERT M. PARKER, Circuit Judge: Before us are 37 nearly identical motions by the Appellant, Garlock, Inc. (“Garlock”), to stay the proceedings of various district courts throughout the four federal districts in Texas pending Garlock’s intended appeal. Having reviewed the various motions, which we treat as a single motion, the appellees’ 1 responses and the amici1 briefs filed in the case, we deny Garlock’s motion. I. Background. The cases before us were all originally brought as personal injury tort or wrongful death (“PITWD”) claims by various plaintiffs against a group of co-defendants which is, by and large, similar in each case. The plaintiffs’ claims arise from exposure to asbestos in one manner or another. The result of this exposure has allegedly led to a plaintiffs’, or a plaintiffs decedents’, developing one or more forms of respiratory disease leading to severe health problems or death.2 The defendants, including 1 Two amici briefs have been filed. The first was “Brief Amici Curiae of Baron & Budd, P.C. and Provost Umphrey in Opposition to Garlock’s Motion to Stay” purporting to represent the interests of “thousands of victims of asbestos-related disease with cases pending in the state courts of Texas and elsewhere” who could be adversely affected by a stay in Garlock’s case. The second was “Memorandum of Amicus Curiae the Official Committee of Asbestos Claimants of Federal-Mogul Global, Inc., in Response to Garlock Inc.’s Motions for a Stay Pending Appeal,” also arguing that a stay in asbestos litigation would adversely affect plaintiffs in other cases and is not warranted here as a matter of law. 2 As of December 13, 2001, appellees asserted that they collectively numbered 82 individual plaintiffs and that the diseases involved in their various lawsuits included: 7 Living plaintiffs with asbestos-related mesothelioma; 18 Plaintiffs’ decedents with asbestos-related mesothelioma; 17 Living plaintiffs with asbestos-related lung cancer; 26 Plaintiffs’ decedents with asbestos-related lung cancer; 4 Living plaintiffs with asbestos-related laryngeal or esophageal cancer; 3 Plaintiffs’ decedents with asbestos-related laryngeal or esophageal cancer; 6 Living plaintiffs with asbestosis; 1 Living plaintiff with asbestos-related pleural disease. See Appellees’ Additional Response to Appellant’s Motion for Stay 2 Garlock, number from about 40 to over 60 in the various individual cases. Their commonality is to be, or to have been, in a business either producing or making use of asbestos.3 In each of the instant cases, both Garlock and Gasket Holdings, Inc. (“Gasket Holdings”), a subsidiary of Federal-Mogul, Inc. (“Federal-Mogul”), were named as co-defendants, among the many others. All of the cases were originally filed under Texas state law in Texas state court without implicating federal jurisdiction. In October 2001, Federal-Mogul filed for protection pursuant to reorganization under Chapter 11 of Title 11 of the United States Code, in bankruptcy. Federal-Mogul included each of its 156 affiliates and subsidiaries, including Gasket Holdings, in the Chapter 11 filing. All of the bankruptcy cases were filed in the United States Bankruptcy Court for the District of Delaware. Pending Appeal (hereinafter, “Appellees’ Additional Response”) at 2. Motions in additional cases have been filed since these figures were compiled. 3 The specifics of the claims in these cases are not in the record before us because we are considering only whether to place a stay on the various proceedings to permit a formal appeal and review of the individual records on appeal. There have been hundreds of thousands of asbestos-related lawsuits brought in Texas and throughout the country in the last three decades, however. A typical claim asserts that the numerous “named defendants either made, sold, marketed, brokered, imported, specified or used asbestos-containing products in Texas which were defective and unreasonably dangerous as designed, manufactured and marketed.” See, e.g., Broyles v. U.S. Gypsum Co., 266 B.R. 778, 780 (E.D. Tex. 2001). The claims then generally assert causes of action for “negligence, gross negligence, fraud, deceit, misrepresentation, battery and defective products theories under Texas state law.” Id. at 780-81. 3  In mid October, Garlock began systematically removing asbestos cases in which Garlock and Gasket Holdings appeared as co- defendants. Garlock asserted that because the Federal-Mogul group, including Gasket Holdings, was in bankruptcy and because Garlock had made a claim for contribution under Texas state law4 against Gasket Holdings, invoking federal jurisdiction was appropriate because the contribution claim was “related to” a claim under Title 11 in accordance with 28 U.S.C. § 1334(b). Garlock therefore proceeded with removal actions in several federal district courts throughout Texas. Besides the 37 cases now before us, Garlock removed about 40 similar cases in the federal districts of Texas. In each of the 37 instant cases,5 Garlock moved in the respective district court for the entire case to be transferred to the United States District Court for the District of Delaware under 28 U.S.C. § 157(b)(5). Such a transfer would permit that district court to determine the appropriate venue, either itself or the federal district court in which the respective action arose originally, in which to adjudicate the PITWD claims against the debtor and against Garlock as a non-debtor co-defendant who asserts 4 See TEX. CIV. PRAC. & REM. CODE §§ 32.001-003, 33.001-004, 011-017. 5 In Garlock’s haste to remove cases to federal district court, it removed a case in which Garlock and the plaintiffs had already reached a settlement. That erroneously removed case, filed as Smith v. Able Supply Co., Civil Action number G-01-673 in the United States District Court for the Southern District of Texas, Galveston Division, was included in Garlock’s flurry of motions to stay under Fifth Circuit Case No. 01-41370. Garlock has since filed a notice of withdrawal of appeal in this one case. 4 a claim for contribution against the debtor. The plaintiffs in every such removed case uniformly responded with a motion to dismiss debtor Federal-Mogul/Gasket Holdings (hereinafter, “debtor”) as a defendant, a motion to sever any remaining claims against the debtor and a motion for the district court to exercise mandatory or discretionary abstention or to remand for lack of subject matter jurisdiction or for equitable reasons. The district judge in each case ruled for the plaintiffs and either dismissed the debtor as a defendant or remanded the remainder of the case to Texas state court or both. The 37 cases now under emergency motion for stay to this court originated in the Corpus Christi Division and Galveston Divisions of the Southern District, the Beaumont and Paris Divisions of the Eastern District, the Dallas Division of the Northern District, and the San Antonio and Austin Divisions of the Western District. The district court in Corpus Christi dismissed the debtor with prejudice, severed all remaining claims against the debtor and transferred them under 28 U.S.C. § 157(b)(5) to the United States District Court for the District of Delaware, and remanded all remaining claims to Texas state court for lack of subject matter jurisdiction under 28 U.S.C. § 1447(c) and/or for equitable reasons under 28 U.S.C. § 1452(b). The district court made no ruling regarding either mandatory or discretionary abstention. The district court in Dallas referred to the Corpus Christi 5 court’s reasoning as “unassailable” and entered an order with identical results. The district court in Galveston determined that bankruptcy subject matter jurisdiction under 28 U.S.C. § 1334(a) and (b) did not exist and that the case had been improperly removed under 28 U.S.C. § 1452(a). The court therefore remanded the entire case and all parties to Texas state court for lack of subject matter jurisdiction. The district court which ruled in the Beaumont and Paris Division cases held that Garlock’s claim for contribution was “scantily asserted” and unsupported, and even if real, was so tenuously related to the debtor’s bankruptcy case as to be virtually immaterial. The court remanded for lack of subject matter jurisdiction under § 1447(c) and alternatively for equitable reasons under § 1452(b). The district court in San Antonio cited the decisions of several other federal district courts, including the Corpus Christi district court, and determined that subject matter jurisdiction did not exist, remanded its cases on that basis alone and dismissed the plaintiffs’ motions to sever as moot. The district court in Austin severed all claims against the debtor and transferred them to the District of Delaware under § 157(b)(5) and remanded all other claims to the Texas state court. Following each of the district courts’ rulings, which occurred between November 9 and December 5, Garlock filed a notice of appeal 6 and moved in the respective district court for a stay of the court’s order pending appeal. Some of the district courts issued a denial and some had not yet ruled on Garlock’s stay motion; regardless, Garlock filed emergency motions to stay the respective district courts’ orders under FED. R. APP. P. 8 before this court.6 Garlock asserts that it is not attempting to appeal an unappealable order of remand. Instead, Garlock states that it is appealing the “appealable” orders of the various district courts, including the inherent denials of Garlock’s transfer motion under § 157(b)(5), any decision to abstain and any dismissal of the debtor. In so doing, Garlock claims that the “automatic stay” feature of 11 U.S.C. § 362, relating to cases in bankruptcy, not only stayed all actions against the debtor when it filed for bankruptcy, but that it stayed all related actions before the various district courts as well. Garlock further contends that the 10-day automatic stay of judgment under FED. R. CIV. P. 62 should have prevented the clerks of the district courts from certifying the remands back to state courts before Garlock could perfect its appeal. Some of the district clerks’ offices mailed certified copies of the remand orders either before or after Garlock’s notice 6 Initially, Garlock filed documents titled “Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas [Corpus Christi Division] and Petitioner’s Emergency Motion for Stay Pursuant to Federal Rule of Appellate procedure 8(a)(1) Pending Appeal.” In later actions, Garlock has simply filed an “Emergency Motion for Stay Pending Appeal” from one or another federal district court. We treat all of Garlock’s motions as motions for stay. 7 of appeal; some have not yet certified the remand. What Garlock seeks, essentially, is a procedural path that would invalidate the clerks’ certification of remand and freeze further action in the district courts while permitting Garlock to perfect its appeal on the § 157(b)(5) transfer issue, without frontally challenging an unappealable remand order. On the basis of such a transfer, Garlock contends, it seeks a fair and consolidated proceeding for all parties. The appellees bring a different view to this court. They contend that Garlock’s true intent is simply to delay any proceeding against it for as long as possible. Such a dilatory intent, appellees contend, will have a devastating effect on them, some of whom are dying. Appellees further contend that Garlock’s dilatory intent is focused solely against these appellees because they have refused to enter into any standardized settlement plan or agreement such as those allegedly arranged between Garlock and other law firms engaged in asbestos litigation. It is true that Garlock has brought no other, similar case to this court on motions to stay or transfer except those in which the appellees’ counsel appears for the plaintiffs. On that basis, counsel characterizes Garlock’s interest not as an attempt to legitimately pursue a coordinated remedy under the bankruptcy law but as a cynical attempt to minimize its exposure with a law firm which “treats each case individually and attempts to achieve maximum value for its 8 clients.” See Appellees’ Additional Response at 3. Because of the “emergency” nature of Garlock’s motions, we implemented a temporary stay in each case to provide sufficient time to fairly consider whether a formal stay pending appeal should issue. We have determined that no such stay should issue and, by this order, dissolve the temporary stays. Our decision in this case is predicated on two primary bases. First, that Garlock does not have a valid claim for contribution against Federal-Mogul or its associated business, Gasket Holdings, upon which to assert “related to” jurisdiction under the bankruptcy laws. Second, we find that Garlock has not otherwise met the elements necessary to obtain a discretionary stay pending appeal by this court. We will address each point raised in this complex matter. II. Jurisdiction, Stays, Transfer of Claims, and Effect of Remand. We will examine the basis for federal bankruptcy jurisdiction and the framework of Garlock’s contentions therein. A. Removal Authority and “Related To” Jurisdiction. Authority to remove a case relating to a case under title 11 resides in 28 U.S.C. § 1452(a): A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit’s police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim under section 1334 of this title. 9  Title 28 U.S.C. § 1334(a) provides that “the district courts shall have original and exclusive jurisdiction of all cases under title 11.” Certain matters related to the debtor’s bankruptcy may be included within the ambit of federal bankruptcy jurisdiction under 28 U.S.C. § 1334, et seq. Specifically, “[n]otwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” See id. § 1334(b). As the United States Supreme Court has noted, “related to” bankruptcy proceedings include (1) causes of action owned by the debtor which become property of the estate pursuant to 11 U.S.C. § 541, and (2) suits between third parties which have an effect on the bankruptcy estate. Celotex Corp. v. Edwards, 514 U.S. 300, 308 n.5 (1995). Garlock’s asserted claim for contribution against the debtor falls into the second category. Most of the federal circuits, including the Fifth Circuit, derive their “related to” jurisprudence from Pacor, Inc. v. Higgins, 743 F.2d 984 (3rd Cir. 1984). See Celotex, 514 U.S. at 308 n.6. In Pacor, the Third Circuit determined that a third-party controversy not directly involving a debtor in bankruptcy was not related to the bankruptcy, but was, at best, a precursor to a claim 10 against the debtor. See Pacor, 743 F.2d at 995. The Third Circuit so ruled on the basis that any judgment between the two third parties could not have any preclusive effect by either res judicata or collateral estoppel against the debtor, who would be free to relitigate any claim brought against it. Id. Thus, “related to” jurisdiction would not come into play until a litigant brought a direct claim under bankruptcy jurisdiction based on the result of the prior judgment. Within the Fifth Circuit, the test for whether a proceeding properly invokes federal bankruptcy jurisdiction is the same as the Third Circuit’s Pacor test, namely, whether “the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.” In re Canion, 196 F.3d 579, 585 (5th Cir. 1999). Certainty, or even likelihood of such an effect is not a requirement. Id. at 587 n.30 (citing Copelin v. Sprico, Inc., 182 F.3d 174 (3rd Cir. 1999)). In In re Canion, a judgment creditor of the debtor, Canion, brought a direct action against several family members, employees, friends and associates of the debtor, asserting claims of fraud and tortious interference with the judgment creditor’s recovery of the judgment. In re Canion, 196 F.3d at 582. Our determination was that this circumstance fell within the “related to” bankruptcy jurisdiction at the time the case was referred to the bankruptcy court (which is the time at which jurisdiction is tested) because 11 the outcome of the proceedings against the defendants conceivably could have increased the debtor’s estate. Id. at 587. Appellees argue that Garlock presents no such direct claim and that its claim for contribution, not based on a contractual relationship, is too tenuous to connect the underlying asbestos PITWD claims to the debtor. 1. “Contribution” as a basis for “related to” jurisdiction and the automatic stay provision in bankruptcy. The Sixth Circuit has held that a claim for contribution is a sufficient basis for finding “related to” jurisdiction in bankruptcy and, in fact, is a sufficient ground upon which to direct a transfer of venue for related tort claims under 28 U.S.C. § 157(b)(5), the same relief sought by Garlock here. In In re Dow Corning, 86 F.3d 482 (6th Cir. 1996), where a relatively small number of non-debtor co-defendants were closely related to the pending breast implant litigation against debtor Dow Corning, a claim of contribution by the co-defendants against Dow Corning, even if only intended and not yet asserted, was sufficient to invoke “related to” bankruptcy jurisdiction. In In re Walker, 51 F.3d 562 (5th Cir. 1995), a party held liable to a debtor for a violation of the automatic stay provided in 11 U.S.C. § 362 sought to invoke “related to” jurisdiction against a third party by asserting a claim of contribution under § 362. Id. at 565-66. We found no federal contribution right to be 12 invoked in § 362 and denied the appellant’s claim. Id. at 567-68. Here, Garlock has asserted its contribution rights entirely under Texas state law. As we discuss in Part III, Garlock’s contribution claim is invalid and therefore no “related to” jurisdiction could exist in this case. B. Transfer of Personal Injury Tort and Wrongful Death Claims under 28 U.S.C. § 157(B)(5). Garlock seeks to transfer all of the PITWD claims in each of the lawsuits against it in accordance with 28 U.S.C. § 157, which empowers the district court where a bankruptcy is proceeding to determine the venue for certain PITWD claims related to the bankruptcy. Specifically, The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claims arose, as determined by the district court in which the bankruptcy case is pending. See 28 U.S.C. § 157(b)(5). Use of this transfer provision in the mass tort context is not strictly novel, but is to date uncommon.7 In the cases before us, the various district courts either explicitly or implicitly denied Garlock’s motions to transfer all underlying PITWD claims from the districts in Texas to the District of Delaware. The Sixth Circuit has held that the denial of a motion to 7 Section 157(b)(5) was the basis for transferring the PITWD claims in A.H. Robins v. Piccinin, 788 F.2d 994 (4th Cir. 1986) and In re Dow Corning, 86 F.3d 482 (6th Cir. 1996). 13 transfer under § 157(b)(5) is immediately appealable on different grounds including a less rigid view of the “finality” requirement for bankruptcy judgments and under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See In re Dow Corning, 86 F.3d 482, 488 (6th Cir. 1996). Because of our ultimate holding herein, we need not determine the same issue for this circuit. Regardless, Garlock claims it should benefit from a stay of the district courts’ orders to present an appeal. C. Stays Applicable to Bankruptcy Proceedings. 1. Title 11 U.S.C. § 362. Once a party files in bankruptcy, under Chapter 11, for example, 11 U.S.C. § 362, et seq., stays further actions against the debtor. Virtually any act attempting to enforce a judgment against or obtain property from the estate of the debtor is stayed once the title 11 proceedings are commenced. See id. § 362(a)(1)- (8). In the instant cases, Garlock contends that § 362 should stay any further actions against the non-debtor co-defendants and should stay the various district courts from dismissing debtor Federal- Mogul companies or remanding the related cases to state court.8 Section 362 is rarely, however, a valid basis on which to stay actions against non-debtors. See Wedgeworth v. Fibreboard Corp., 8 Such a stay would enable Garlock to perfect an appeal of the district courts’ explicit or inherent denials of Garlock’s § 157(b)(5) transfer motion without having to contend with an order of remand. 14 706 F.3d 541, 544 (5th Cir. 1983)(“[w]e join [the cited courts] in concluding that the protections of § 362 neither apply to co- defendants nor preclude severance”). By exception, a bankruptcy court may invoke § 362 to stay proceedings against nonbankrupt co-defendants where such identity between the debtor and the third-party defendant exists that the debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be a judgment or finding against the debtor. A.H. Robins Co., 788 F.2d 994, 999 (4th Cir. 1986). In that case, however, the non-debtor co-defendants were indemnified associates, employees or insureds of the debtor sole manufacturer of the Dalkon Shield intrauterine device. Here, Garlock is one of scores of different asbestos makers, users, importers, etc., with no interest to establish such an identity with debtor Federal-Mogul/Gasket Holdings. There is no claim of a formal tie or contractual indemnification to create such an identity of interests. 2. Federal Rule of Civil Procedure 62. Garlock has also asserted that FED. R. CIV. P. 62(a) should have operated to effect a ten-day stay of the various district courts’ orders before they were executed. In pertinent part, Rule 62(a) establishes that “no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 10 days after its entry.” Garlock’s concern is that, lacking 15 the protection of the ten-day stay, the district clerks’ offices were free to certify the various remand orders at any time and by doing so, potentially destroy federal jurisdiction without possibility of appellate review.9 Garlock contends that it is not seeking appellate review of an order to remand, but seeks a stay of the remand order in the district court under FED. R. CIV. P. 62(d) upon appeal of the § 157(b)(5) issue. Rule 62(d) relates to Rule 62(a) in that Rule 62(a) provides a respite from the immediate execution of a judgment, except for an interlocutory or final judgment in an action for an injunction or in a receivership action, or for an accounting in an action for infringement of letters patent. Rule 62(d) then provides for a stay pending appeal, subject to the exceptions in Rule 62(a). The stay provisions of Rule 62 pertain to judgments for money. Hebert v. Exxon Corp, 953 F.2d 936, 938 (5th Cir. 1992). That does not preclude diverse forms of judgment pertaining to monetary responsibility from a stay under Rule 62(d) pending appeal nor Rule 62(a) for ten-day automatic stay of judgment. See id. at 938-39 (overturning a district court’s denial of a stay of declaratory 9 Garlock’s references to FED. R. CIV. P. 62, et seq., in the Petitioner’s Motions for Stay are primarily aimed at an argument to establish an appeal as a matter of right. Once Garlock discovered, however, that the federal district court in Corpus Christi had already mailed certified copies of the court’s remand orders without waiting the ten-day period specified in Rule 62(a), it filed a series of “Emergency Motion[s] for Supplemental Relief” asking this court to direct the district clerk’s office to, in effect, “de-certify” its certification. 16 judgment where the declaratory judgment was, in effect, a money judgment suitable for a Rule 62(d) stay subject to the requirements of Rule 62(a)). In the instant cases, however, the subject matter of Garlock’s motion is not for a stay of judgment, declaratory or otherwise. It is for a stay of remand under Rule 62. A remand of an ongoing case is not a final judgment following a full adjudication of a claim, the result of which may be appealed. Even if the subject matter of the underlying litigation is solely money damages, there is no “money judgment” inherent in its remand. Accordingly, there is no basis in Rule 62 for such a stay. See City of New Orleans v. Nat’l Serv. Cleaning Corp., No. 96-1601, 1997 WL 5915, at *1 (E.D. La. Jan. 6, 1997). Further, Rule 62 itself provides no authority to revoke a remand once it has become effective. See, e.g., Rivera-Perez v. Mass. Gen. Hosp., 193 F.R.D. 43, 45 (D.P.R. 2000). On that basis, Garlock is not entitled to the Rule 62 automatic stay. D. Effect of Remand. We have consolidated many of these cases according to date or by court, but as indicated in Part I, the orders are not entirely uniform. All of them include a remand for lack of subject matter jurisdiction, citing 28 U.S.C. § 1447(c). However, two of the courts did not make such a finding until after the debtor had been 17 dismissed with prejudice from the plaintiffs’ cases and the remaining cross-claims for contribution severed and transferred to the District of Delaware. Two others remanded for lack of subject matter jurisdiction without dismissing the debtor, without detailed explanation. One court did not dismiss the debtor but found Garlock’s claims for contribution to be scanty and, if real, too tenuous and remanded. Some courts remanded on equitable grounds. 1. Remand for lack of subject matter jurisdiction. A remand for lack of subject matter jurisdiction under 28 U.S.C. § 1447(c) is ordinarily barred from appellate review by 28 U.S.C. § 1447(d). See State of Rio de Janeiro v. Philip Morris, Inc., 239 F.3d 714, 716 (5th Cir. 2001)(noting that as long as a district court’s remand order is based on lack of subject matter jurisdiction, a court of appeals lacks authority to review a remand under § 1447(d); also referring to “the black hole force of a remand for want of jurisdiction”). There are few exceptions. Notably, remand under a district court’s citation of § 1447(c) for a reason not embraced within that statute is subject to appellate review. Id. at 715 (citing Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343 (1976)). That exception is inapplicable here. Rather than fruitlessly attempting an appellate review of a district court’s remand order, we instead examine the steps leading from a district judge’s decision to remand to execution of the 18 remand order. A § 1447(c) order of remand is not self-executing. Section 1447(c) provides, in pertinent part, that upon determination that a case should be remanded, “[a] certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.” See McClelland v. Gronwaldt, 155 F.3d 507, 514 n.5 (5th Cir. 1998). This provision creates legal significance in the mailing of a certified copy of the remand order in terms of determining the time at which the district court is divested of jurisdiction. Id. (citing the discussion and references in Browning v. Navarro, 743 F.2d 1069, 1078-79 (5th Cir. 1984)). On that basis, the federal court is not divested of jurisdiction until the remand order, citing the proper basis under § 1443(c), is certified and mailed by the clerk of the district court. Once the remand order is certified and mailed, however, the matter remanded is removed from federal jurisdiction. Of all the cases brought before us under Garlock’s motions, most have already been certified and mailed by the respective district clerks. 2. Equitable remand. Of greater import in this particular case is the effect of an equitable remand. The court to which [claim or cause of action related to bankruptcy cases] is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause 19  of action, or a decision to not remand, is not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of this title or by the Supreme Court of the United States under section 1254 of this title. See 28 U.S.C. § 1452(b). This remand statute, unlike § 1447(c), carries no certification and mailing requirement, nor have we found authority to require such, as much as that would promote procedural consistency with § 1447(c). Whether such an equitable remand is self-executing is less important than the stricture that, once a matter related to a bankruptcy case is equitably remanded, it is not subject to federal appellate review on any basis. See Hawking v. Ford Motor Credit Co., 213 F.3d 540, 550 (5th Cir. 2000); Sykes v. Texas Air Corp., 834 F.2d 488, 490 (5th Cir. 1987)(even an equitable remand based on a substantive law issue such as lack of subject matter jurisdiction is unreviewable, in part because of the likelihood of throwing matters into confusion months or years later after other proceedings, e.g., in state courts). Garlock’s emergency petition seeks to halt the progress of a remand before it leaves the district court for an immediate appeal of a collateral order. The determination of venue for PITWD cases such as these under 28 U.S.C. § 157(b)(5) would seem to be the type of matter which could be readily decided without creating the type of confusion following an order of remand with which we were concerned in Sykes. The equitable remand of bankruptcy-related matters harbors no such opportunity. 20  Because some of the various subject-matter jurisdiction remands have not yet been certified and mailed, and because some have not been remanded equitably, we will proceed with an analysis of whether Garlock should otherwise be granted a stay pending appeal under our authority in FED. R. APP. P. 8 in those matters not barred from further review. III. Merits of the Motion for Stay. When presented with a motion for a discretionary stay pending appeal, we employ a four-part test. See In re First S. Sav. Assoc., 820 F.2d 700, 704 (5th Cir. 1987)(citing Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982)(“Ruiz II”)). While each part must be met, the appellant “need not always show a ‘probability’ of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Id. (quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. Unit A June 1981)(“Ruiz I”)). A. Whether the movant has made a showing of likelihood of success on the merits. Despite the possible availability of a discretionary stay pending appeal, even if Garlock had avoided remand, it could not show a probability of success on appeal. First, there was no 11 U.S.C. § 362 automatic stay of actions available to the non-debtor co-defendants of the debtor, Federal- 21 Mogul/Gasket Holdings. Therefore, while § 362 acted to stay any claims against the Federal-Mogul entities, including Garlock’s putative claim of contribution, it carried no force to stay actions as between the remaining co-defendants, the debtor and the various plaintiffs. On that basis, the plaintiffs were free to dismiss Federal-Mogul and its associated entities under FED. R. CIV. P. 41(a)(1). Even if Garlock had filed a counterclaim against the plaintiffs in each such case, which Garlock does not assert, the district court would have been within its discretion to dismiss by order of the court under Rule 41(a)(2). For those cases in which the debtor was formally dismissed,10 such dismissal was with prejudice and, under Texas law, eliminated Garlock’s contribution claim against the debtor. It is well established under Texas case law that neither contribution nor indemnification can be recovered from a party against whom the injured party has no cause of action. See Safway Scaffold Co. of Houston, Inc. v. Safway Steel Products, Inc., 570 S.W.2d 225, 228- 29 (Tex. App.--Houston [1st Dist.] 1978, writ ref’d n.r.e.). In modern Texas code, a “responsible third party” from whom contribution is sought must “be liable to the plaintiff for all or a part of the damages claimed against the named defendant or defendants.” See TEX. CIV. PRAC. & REM. CODE ANN. § 10 By our reckoning, this includes all of the cases ruled on by the district courts in Corpus Christi and Dallas. 22 33.011(6)(A)(iii)(Vernon 2001). Thus, no claim for contribution may lie in those cases wherein the district court dismissed the debtor with prejudice. Second, the Texas code eliminates a debtor in bankruptcy as a “responsible third party” from whom contribution may be sought, except to the extent that liability insurance or other source of third party funding may be available to pay the claims asserted against that debtor. Id. § 33.011(6)(B)(ii). Garlock has addressed the issue of the debtor’s insurance peripherally, but has not clearly represented whether the insured debtor is Federal-Mogul itself, Federal-Mogul’s subsidiary Gasket Holdings (successor to Flexitallic, another gasket-producing company), or whether either or both of them have liability insurance available to pay any claims. Third, Garlock has relied in part on two past decisions transferring PITWD claims under § 157(b)(5) to the district in which a debtor was proceeding in bankruptcy. In A.H. Robins, the Fourth Circuit upheld an order of the United States District Court for the Eastern District of Virginia transferring, under § 157(b)(5), thousands of PITWD claims against a small number of non-debtor co-defendants to itself for coordinated review while the debtor, A.H. Robins Co., Inc., proceeded in bankruptcy in that district. A.H. Robins, 788 F.2d at 23 1016.11 Robins was the manufacturer of the Dalkon Shield intrauterine device, a unique product. Its co-defendants were employees or other close associates who were contractually indemnified by Robins. Here, the various co-defendants manufacture, use, specify, or handle many different asbestos products without such close relationship. Additionally, Garlock makes no claim of indemnification here whatsoever. In In re Dow Corning, the Sixth Circuit reversed and ordered the United States District Court for the Eastern District of Michigan to transfer under § 157(b)(5) a relatively small number of non-debtor co-defendants who had asserted claims for contribution, or announced the intent of doing so, against the debtor manufacturer of silicone breast implants. In re Dow Corning, 86 F.3d at 498. In that case, each of the co-defendants was closely involved in using the same material, originating with the debtor, to make the same, singular product, sold to the same market and incurring substantially similar injuries. This circumstance created a unity of identity between the debtor and the co- defendants not present here, where the co-defendants variously use asbestos for brake friction products, insulation, gaskets, and other uses. Therefore, while we do not disagree that certain mass tort 11 The circuit court’s ruling remanded for clarification and to provide notice for claimants’ objections, but otherwise affirmed. 24 claims in some circumstances might be consolidated with bankruptcy proceedings in a single district in accordance with § 157(b)(5),12 the relationship of the co-defendants in A.H. Robins and In re Dow Corning is distinguishable from Garlock’s asserted relationship, through a claim for contribution, to the debtor here. Fourth, Garlock’s contribution claim against the debtor is based on universally-pled claims against all defendants in all asbestos lawsuits in which Garlock appears as a co-defendant. Garlock has never litigated a contribution claim to collection in any of approximately 250,000 previous asbestos lawsuits in which Garlock was a co-defendant. In the face of this criticism, Garlock has made a late attempt to color its failure to pursue an actual payment of contribution.13 Garlock now asserts that in past lawsuits, the “larger” or “major” defendants, now in bankruptcy, had been present to pay their fair share of claims and that it was 12 Some writers and commentators would bar mass tort parties from being transferred for consolidated review under § 157(b)(5). See, e.g., Lori J. Forlano, Why Bankruptcy “Related To” Jurisdiction Should Not Reach Mass Tort Nondebtor Codefendants, 73 N.Y.U. L. Rev. 1627 (1998)(arguing, generally, against consolidation on grounds of comity and federalism). We would not go so far as to bar such consolidation in the face of a coordinated federal bankruptcy scheme. Instead, we would balance each case individually, as we have herein, for the relationship or unity of identity of the co-defendants and the debtor(s), the uniformity of source of the injury or wrongful death, and the general status of pending cases in the state courts and the effect a consolidation would have on them. 13 See Reply of Garlock, Inc., to Plaintiffs’ Response, filed December 19, 2001, at 7-8. 25 not cost-effective for Garlock to litigate the relatively small amounts left in controversy. It is only since the Federal-Mogul entities proceeded to Chapter 11 protection that, Garlock contends, it must seriously proceed with its claims for contribution. Garlock has not, however, commenced discovery in any of these cases, but has spent its time seeking the § 157(b)(5) transfer addressed herein. The appellees characterize that as a dilatory intent and, if such, Garlock’s actions are tantamount to being frivolous. Additionally, the district judges ruling in the various cases before us found, on the facts before them, no merit in Garlock’s claims. One district judge, for example, noted that in his court, Garlock’s claims were “scantily asserted” and presented no facts to support them. As such, the contribution claims were “so tenuously related to the bankruptcy case” as to be “virtually immaterial.” All of the district judges ultimately found no verifiable basis in Garlock’s claims so as to justify a mass transfer to the District of Delaware. We are not prepared to say that Garlock’s motives were purely dilatory and its motions frivolous. We need not, however, decide the issue of motivation when determining the potential for success on the merits of Garlock’s “related to” jurisdiction assertion and associated motion to transfer under § 157(b)(5). Given the preliminary analysis herein, Garlock would not succeed on the merits if granted a stay to appeal the § 157(b)(5) transfer issue. 26  Our determination in this element is sufficient to deny the stay pending appeal; however, we will briefly address the remaining points of analysis. B. Whether the movant has made a showing of irreparable injury if the stay is not granted. We have determined that Garlock has no valid claim for contribution against the debtor. Therefore, no irreparable harm will ensue if a stay is not granted. C. Whether the granting of the stay would substantially harm the other parties. There may be a danger of inconsistent results in the various state and federal courts in which Garlock and the other parties appear if these cases are not consolidated in the District of Delaware. That is, however, the circumstance under which asbestos litigation has proceeded for nearly 30 years. What is certain is that delay where plaintiffs have mesothelioma, asbestosis, or pleural disease, or where decedents’ survivors await compensation for support substantially harms those parties. Additionally, delay in or lengthy interruption of state court proceedings already in progress for months or years may substantially harm the ability of the state courts to resolve the cases. We therefore hold that, in this circumstance, the harm to the 27 plaintiffs in delay substantially outweighs the harm to Garlock if not delayed. D. Whether the granting of the stay would serve the public interest. Consolidation of PITWD cases related to a bankruptcy would facilitate management of an estate in bankruptcy and potentially provide an even-handed and fair apportionment of the bankrupt’s estate to its creditors, including those claiming contribution in the mass tort scenario. Such consolidation would also deprive states and state courts of their right to conduct proceedings brought under state law. In a mass tort case of the scope of asbestos litigation, transferring cases related to a bankruptcy could well result in depriving the states of cognizance over thousands of cases. Many of these cases are founded on well-developed state law and years of precedent and represent a significant amount of time in individual litigation. The negative effect on comity between the federal and state court systems must be given some account. Armstrong Work Industries, U.S. Gypsum, W.R. Grace and Owens Corning are all proceeding through Chapter 11 in Delaware in addition to Federal-Mogul. The burden of these five asbestos- related bankruptcies and the direct claims against them alone has resulted in the Third Circuit appointing a district judge full-time to stewarding those cases in coordination with a bankruptcy judge. 28 The transfer of all of the PITWD claims against asbestos co- defendants to that court has the potential to overload the court with thousands of individual claims to resolve. It is difficult to see how the public interest is served in that manner. At the bottom, there is justification for aggregation, but the tenuous relationship between Garlock and the debtor and the insubstantial claims of contribution reflected herein do not justify ignoring comity and loading thousands of cases on a single district in this case. IV. Issue Preclusion. Garlock contends that a transfer of venue to the District of Delaware would obtain “a ‘centralized,’ ‘efficient,’ cost-effective application of a uniform, fair system for assessing and compensating asbestos-related claimants” under 28 U.S.C. § 157(b)(5) and the automatic stay feature of 11 U.S.C. § 362, “to avoid unnecessary repetition, confusion, inconsistent results in multiple trials of common issues, cost or delay where these many cases do not have to be multiplied.”14 In addition to seeking a 14 See Petitioner’s Emergency Motion for Stay at 3 (for cases consolidated under Fifth Circuit Case No. 01-41327). In cases filed at later dates and consolidated under other case numbers, Garlock’s intent is stated in a different location. For example, “[a] stay in this action will promote the stated congressional public policy reflected in § 157(b)(5) of having all matters ‘related to’ bankruptcy reviewed toward implementing centralized, efficient and expeditious proceedings conserving the debtor’s resources and distributing the debtor’s assets for the benefit of all creditors alike.” See Petitioner’s Emergency Motion for Stay at 14 (for cases consolidated under Fifth Circuit Case No. 01- 29 centralized forum under federal bankruptcy laws, which, we note, Garlock may desire as much for perceived protection from judgments in the state courts, Garlock appears to be contemplating the availability of coordinated federal court judgments for their preclusive effect in future actions. To the extent that Garlock’s contention can be read to embrace one made more explicitly by the “Big Three” automobile manufacturers15--that transfer to the District of Delaware bankruptcy court would facilitate a ruling on the ability of friction products to be a producing cause of asbestos-related diseases, a ruling that would be used for purposes of issue preclusion in other cases--Garlock faces formidable obstacles. As an initial matter, we note that Garlock has not attempted to certify as a class these and other asbestos cases--the only widely- 51209). Regardless, all of the motions reflect the same underlying general facts, legal theory and intent. 15 The “Big Three” automobile manufacturers, who are co-defendants in many of these same cases, are being sued as users of asbestos friction products, such as brakes in automobiles. They moved in the District of Delaware to transfer all such claims against them under § 157(b)(5) for the specifically stated intent of conducting Daubert hearings for the admission of scientific evidence and a ruling that brake/friction products are conclusively not a possible source of disease-producing asbestos. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Such a ruling would then be used for issue preclusion in future cases. Garlock and amici have briefed the auto manufacturers’ effort from their opposing perspectives and counsel for Ford Motor Co., DaimlerChrysler Corp. and General Motors Corp. has further informed us by letter dated December 12, 2001, that the District of Delaware has provisionally transferred only those claims to that court for further determinations. 30 credited medium for disposing of multiple claims while barring relitigation of resolved issues. Less well-accepted is consolidation under Rule 42, but this approach is complicated by the cases involved having been filed in multiple courts in diffuse districts and by the absence of complete uniformity among parties and interests. Even more tenuous would be resort to judicial notice under FED. R. EVID. 201. For a party to tee up an issue for decision in a selected court with the expectation that any rulings would not only be referenced by subsequent courts but also applied as binding--and in the face of inconsistent decisions previously rendered elsewhere--is to hope for a most novel application of that rule indeed. But no matter how creative the procedural avenue, and in spite of the fact that this litigation would benefit from a uniform approach, at almost every turn this circuit has rejected attempts at aggregation and issue preclusion in asbestos cases. Our adversity toward group resolution sounds in our concern that no one be deprived the right to a full and fair opportunity to litigate their claims. In C.A. Hardy v. Johns-Manville Sales Corp., 681 F.2d 334 (5th Cir. 1982), we turned aside a district court’s order that nonparty asbestos companies were estopped from relitigating issues of dangerousness and causation as violative of the fundamental right to trial by jury. We reached this conclusion based on the manufacturers’ each having an interest in the 31 plaintiffs proving the same set of facts. Indeed, in Hardy we went so far as to conclude that the presence of inconsistent findings in other cases on the same questions at issue in Hardy made the application of collateral estoppel highly problematic even as to the parties themselves. Of course Garlock need not be reminded of Hardy’s place in this circuit’s jurisprudence for it was one of the defendants that opposed any attempt to bar the relitigation of key dispositive issues. The passage of time has not weakened the teachings of Hardy. In re Fibreboard, 893 F.2d 706 (5th Cir. 1990), saw this court issue a writ of mandamus against the trial of a representative group of plaintiffs on the issues of duty and damages. There, we said that adherence to state substantive law and to the Seventh Amendment right to trial by jury would not tolerate making the resolution of a handful of claims binding as to defendant asbestos manufacturers’ liability with respect to all plaintiffs. In Cimino v. Raymark Industries, Inc., 151 F.3d 297 (5th Cir. 1998), we again revisited the same district court’s revised effort at mass resolution. There, we emphasized that federal rules providing for aggregation of claims--specifically, FED. R. CIV. P. 23 and 42-- cannot override the necessity of proving causation as to each defendant, a requirement of the state law providing the cause of action and of the right to trial by jury. As we did in Fibreboard, we refused to tolerate deviation from fundamental principles of due 32 process simply because asbestos cases threatened to swamp the resources of the federal courts. The closest this circuit has come to utilization of issue preclusion in the asbestos context is Jenkins v. Raymark, 831 F.2d 550 (5th Cir. 1987). In that case, a certified class of 753 claimants were permitted to try common issues in a single trial, the result of which was applicable to the class. The procedure approved in Jenkins, however, still required individual jury determinations of causation and damages. The efficiencies to be obtained from issue preclusion, therefore, cannot in this circuit serve as a basis for the transfer of cases under 28 U.S.C. § 157(b)(5). V. Abstention. A § 157(b)(5) motion ordinarily requires an abstention analysis. In re Dow Corning, 86 F.3d 482, 497 (6th Cir. 1996). 28 U.S.C. § 1334 provides for two types of abstention: discretionary abstention under § 1334(c)(1) and mandatory abstention under § 1334(c)(2). See, e.g., Broyles v. U.S. Gypsum Co., 266 B.R. 778 (E.D. Tex. 2001) (finding both doctrines apply, as well as equitable remand, in circumstances not involving a transfer under 28 U.S.C. § 157(b)(5)). We agree with the district judge in Corpus Christi. Any abstention issues remaining in these cases regarding claims now before the bankruptcy court in the District of Delaware may be 33 decided by that district court. VI. Conclusion. We do not disagree that the transfer provisions of 28 U.S.C. § 157(b)(5) may be applicable to multiple, non-debtor co-defendants in a mass tort case. Our holding today is that Garlock, in these cases and under these circumstances, has not shown that such a transfer is appropriate. It is hereby ORDERED that, The Petitioner’s Motions for Stay under FED. R. APP. P. 8 are DENIED. It is further ORDERED that, The temporary stays issued in our consolidated Orders are hereby dissolved. 34 

222 F.Supp. 324 (1963) George H. RICHTERBERG, Plaintiff, v. WITTICH MEMORIAL CHURCH, a corporation, Defendant. Civ. No. 9783. United States District Court W. D. Oklahoma. June 20, 1963. *325 Dale & Dale, Guymon, Okl., Cochran, Dudley, Fowler, Rucks, Baker & Jopling, Oklahoma City, Okl., for plaintiff. Leslie L. Conner, Oklahoma City, Okl., Grester Lamar, Guymon, Okl., for defendant. DAUGHERTY, District Judge. This matter was tried to the Court without a jury on the 17th day of April, 1963, at which time the case was taken under advisement and suggested findings of fact and conclusions of law where requested and subsequently received from both parties. Pursuant to the foregoing, the Court now makes the following findings of fact, conclusions of law, and renders the following decision herein: FINDINGS OF FACT 1. Theodore Farmhals and Beatrice M. Farmhals, husband and wife, owned the NE¼ of Section 22, Twp. 6 North, Range 11 East of the Cimarron Meridian, in Texas County, Oklahoma, as joint tenants, having acquired the same on November 8, 1930. 2. Theodore Farmhals died on September 25, 1941, leaving Beatrice M. Farmhals, his wife, as the surviving joint tenant of said land. 3. By deed dated December 30, 1941, Beatrice M. Farmhals, then of Chicago, Illinois, conveyed said land to the Christ Church Pentecostal, also of Chicago, Illinois. 4. Christ Church Pentecostal later became Wittich Memorial Church, a corporation, the defendant herein. 5. The plaintiff, George H. Richterberg, commenced farming the above land in 1928 as a tenant under Theodore and Beatrice M. Farmhals on a crop rent basis, which arrangement continued until 1942 or 1943. 6. In 1942 or 1943 George H. Richterberg was contacted by one James H. Martin of Chicago, Illinois, following which he ceased to farm the property for anyone for a period of some four or five months. 7. On February 6, 1943, Harrison E. Rall of Elkhart, Kansas, sent the following telegram to James H. Martin of Chicago, Illinois: "To James H. Martin, "Street and No., 7513 S. Halsted St. "Place, Chicago, Ill. "Feb. 6, 1943 "Accepting there price. Send contract. "Letter fowling. "Harrison E. Rall." (See Plaintiff's Exhibit Number 4 to Harrison E. Rall deposition.) 8. On February 6, 1943, Harrison E. Rall made his check to Christ Church Pentecostal for $100.00 which was sent to James H. Martin and by him endorsed for Christ Church Pentecostal. (See Plaintiff's Exhibit Number 5 to Harrison E. Rall deposition.) 9. On March 15, 1943, Harrison E. Rall deposited $1,500.00 in escrow in the First State Bank of Elkhart, Kansas, on the NE¼, Section 22, Township 6, Range 11. (See Plaintiff's Exhibit Number 8 to Harrison E. Rall deposition.) 10. About this time, in 1943, Harrison E. Rall notified George H. Richterberg that he had bought the land involved and arrangements were effected between them for George H. Richterberg to farm the land as the tenant of Harrison E. Rall on a share crop basis. This arrangement *326 continued for approximately eighteen years until George H. Richterberg obtained a quitclaim deed to the property from Harrison E. Rall during the latter part of the year 1961. (See Plaintiff's Exhibit Number 25 to Harrison E. Rall deposition.) 11. On March 2, 1944, Harrison E. Rall, in support of his purchase and ownership of the land involved herein, filed an affidavit in the office of the County Clerk of Texas County, Oklahoma, to the effect that he had purchased the land in question. (See Plaintiff's Exhibit Number 13 to Harrison E. Rall deposition.) 12. The defendant church paid the taxes on said land for the years 1941 and 1942 and sent its check for the 1943 taxes but the check was returned. Harrison E. Rall paid the taxes on said land for the year 1943 and all years subsequent through 1961. Plaintiff paid the taxes for the year 1962. 13. During the years that George H. Richterberg farmed said land as the tenant of Harrison E. Rall, wheat and milo were grown, trees were set out, bind-weed was killed with chemicals, the land was improved for cultivation by plowing and otherwise. These tasks were performed by both Rall and Richterberg. At times cattle were pastured on the land and an electric fence was installed. No one lived on the farm itself and the same had no houses or buildings located thereon. George H. Richterberg has always lived near-by in Texas County, Oklahoma. The said Harrison E. Rall owned the west half of said Section 22 and a similar share crop farming arrangement was in effect as to it between Harrison E. Rall and George H. Richterberg. No crop rents or moneys were paid to the defendant church by George H. Richterberg or Harrison E. Rall at any time during the period 1943-1961 and none was demanded of them by the defendant church during such period. The land was registered with the Government for wheat allotment by George H. Richterberg. When the crops were harvested each year, except when there was a crop failure, George H. Richterberg and Harrison E. Rall sold the grain and divided the proceeds between themselves under their share crop arrangement. 14. On July 5, 1946, E. C. Podewell, the acknowledged attorney for the defendant church, in a letter to the attorney for Harrison E. Rall expressed knowledge on behalf of the church that Harrison E. Rall was claiming ownership of the property adverse to the defendant church by purchase and was demanding a deed. 15. In August 1950, Harrison E. Rall filed an action against the defendant church in the District Court of Texas County, Oklahoma, in which he alleged that on February 3, 1943, the defendant church was the owner in fee simple and in possession of said land but that pursuant to an agreement thereafter made on February 6, 1943, as shown by exhibits attached to the petition, he purchased the land for $1,600.00 as offered and became the owner thereof. (See Defendant's Exhibit Number 1.) In this suit, Harrison E. Rall asked for his deed to said land by way of specific performance. 16. The defendant church made an appearance in this suit by an attorney on June 6, 1952, but the suit was never brought to issue or trial, and on December 20, 1961, the same was dismissed without prejudice by the plaintiff therein, Harrison E. Rall. 17. In said specific performance suit as disclosed by the transcript thereof (see Defendant's Exhibit Number 1), the said Harrison E. Rall did not recognize a superior title or right to said land in the defendant church — rather the said Harrison E. Rall asserted his own title and ownership of said land against the church and superior to the church by virtue of his purchase of the same on February 6, 1943, followed by payment of the agreed consideration therefor. 18. According to Plaintiff's Exhibit Number 23 (Such exhibit is attached to the deposition of Harrison E. Rall), the defendant church in a letter on its letter-head dated August 8, 1945, and signed by Gordon P. Swartz (Pastor of the church and husband of the witness herein, Hedwig *327 Swartz), and one Raymond D. Johnson and Beatrice M. Farmhals (previous owner) recognized Mr. James Martin as the church's real estate agent in connection with the Guymon property, the property involved herein, and his services as such were then terminated. 19. Harrison E. Rall was in actual, open, notorious, exclusive and hostile possession of the land involved herein under color of title and claim of right from on or about March 15, 1943, when he placed the purchase price in escrow until he conveyed the property to the plaintiff herein on or about December 11, 1961. The plaintiff has been in actual, open, notorious, exclusive and hostile possession of said land from the date he acquired title thereto from Harrison E. Rall as above set forth until he filed this action on July 11, 1962 and was in such possession at the time of trial herein. Prior thereto the possession of said land by George H. Richterberg from early 1943 was as the tenant of Harrison E. Rall and his possession as such tenant was actual, open, notorious and hostile as to the defendant church. 20. Harrison E. Rall did not enter into possession of said land as a renter at any time. Rather, he took possession in 1943 as the purchaser and owner thereof. At any rate, any effort to make him a renter was clearly repudiated and the hostile possession of Harrison E. Rall was made manifest by the affidavit he filed on March 2, 1944, which is mentioned in Paragraph 11 above. Moreover, the defendant church definitely knew of such hostile holding as shown by its attorney's letter dated July 5, 1946, and mentioned in Paragraph 14 above. The facts that no rent was ever paid to the defendant church by Harrison R. Rall or his tenant; that Harrison E. Rall paid the taxes on said land for the years 1943 through 1961, and that the church had knowledge at least by July 5, 1946, by competent evidence, and probably earlier, that Harrison E. Rall was claiming to be the owner of said property and was demanding a deed, all clearly and positively establish that Harrison E. Rall was holding possession of said land actually, openly, notoriously, continuously, exclusively, and adversely for over fifteen years against the defendant church. 21. The plaintiff, George H. Richterberg, is and has been at all times herein and when this suit was filed a resident and citizen of Texas County, State of Oklahoma. The defendant church is and has been at all times a citizen of Chicago, Illinois. The land involved herein has a value in excess of $10,000.00 exclusive of interest and costs. Both parties have stipulated to the jurisdiction of this Court. CONCLUSIONS OF LAW 1. Under the law of Oklahoma title by prescription or by adverse possession may be acquired by one who is in actual, open, visible, notorious, continuous, exclusive and hostile possession with claim of ownership for a period of fifteen years. Moore v. Slade, Okl., 147 P.2d 1006. 2. To establish adverse possession of land the claimant need not actually reside upon it or have it enclosed with a fence but it is sufficient if claimant is doing such acts thereon that indicate in an open, public and visible manner that he has exclusive control over the land under a claim of right to such exclusive possession. 3 Am.Jur.2d, page 100; Fessler v. Thompson, Okl., 130 P.2d 513; Cox v. Kelley, Okl., 295 P.2d 1061. 3. Statements, acts and declarations by one claiming title by adverse possession, and his predecessors in title, made during the statutory period are admissible as evidence tending to show the nature of his possession. 3 Am.Jur.2d, page 349. 4. The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner. Reinhart & Donovan Co. v. Missouri-Kansas-Texas R. R. Co., Okl., 105 P.2d 541. *328 5. To constitute basis for adverse possession of land, entry thereon must be accompanied by claim of right, or there must be distinct denial or repudiation of true owner's right to possession after such entry. Cook v. Craft, Okl., 248 P.2d 236; Wilcox v. Wickizer, Okl., 266 P.2d 638. 6. Payment of taxes on land is not controlling but is one of the means whereby claim of ownership is asserted, and failure to pay taxes weakens claim of ownership by adverse possession. Anderson v. Francis, 177 Okl. 47, 57 P.2d 619. 7. Under the facts in this case, the said Harrison E. Rall entered into possession of the land involved in 1943 under a claim of right or claim of ownership as the purchaser of the same and continued such possession until he sold the property to plaintiff herein in 1961. 3 Am.Jur.2d, 177, 183. 8. If one claiming title by adverse possession brings an action in the nature of specific performance during the statutory period, which action is later dismissed by him without being heard on its merits, the statutory period of adverse possession will not be disturbed and it is to be considered as though such action had never been instituted, unless, in such action the claimant in adverse possession took a position inconsistent with his claim of right or claim of ownership or recognized a superior title at the time to be in another. 2 C.J.S. Adverse Possession § 153, p. 723; 80 A.L.R. 439; Screen v. Trainor, 172 La. 51, 133 So. 359; and Endicott v. Haviland, 220 Mass. 48, 107 N.E. 394. 9. The specific performance action filed in 1950 by Harrison E. Rall, plaintiff's predecessor in title did not, as a matter of law, recognize a superior title in the defendant church. Moreover, the allegations of the said Harrison E. Rall set forth in his petition asserted superior title in himself by purchase and were not inconsistent with a claim of title by adverse possession. See authorities under Paragraph 8 immediately above. 10. An offer of settlement or compromise made with reference to a pending suit is not admissible in evidence. Plummer v. Fogley, Okl., 363 P.2d 238. 11. Bargaining for an outstanding claim or title does not constitute a recognition of the superiority of such claim or title. 3 Am.Jur.2d 169. 12. The statutory period for title by adverse possession of land will not be tolled by the claimant in adverse possession being a non-resident of the jurisdiction in which the land is situated. The statutory period begins to run at the time of entry unless the entry is permissive, and then the statutory period begins to run at the time the possession of the claim becomes adverse to that of the owner. 3 Am.Jur.2d, page 89. An ejectment action, available to the owner of land to remove one in possession and holding adversely, is a local action. Suit is brought in the county where the land is situated. 18 Am.Jur. page 62. Graves v. Foster, 158 Okl. 36, 12 P.2d 502. A tenant of one claiming ownership by adverse possession could be joined as a party defendant and would be a proper defendant alone if the employer is not amenable to suit. 18 Am.Jur., Page 66. DECISION Based upon the foregoing findings of fact and conclusions of law it is the judgment and decision of the Court that Harrison E. Rall at the time he entered into possession of the land involved in the year 1943 did so under a claim of ownership of the property by virtue of his purchase of the same; that this possession at all times thereafter was open, notorious, continuous, exclusive, hostile and adverse to the defendant church and so continued until Harrison E. Rall conveyed his title to plaintiff herein in 1961; that the specific performance suit of Harrison E. Rall did not disturb the running of the statutory period since it was dismissed by him without having been tried and since it did not recognize a superior title in the defendant church but rather was an assertion of paramount title in *329 Harrison E. Rall by virtue of his having purchased the property; that the possession of Harrison E. Rall from early 1943 until late in the year 1961 by clear and positive evidence was open, notorious, exclusive and hostile against the defendant church, and that such adverse possession by Harrison E. Rall ripened into a title in him in and to the property by adverse possession or prescription; that such title has been conveyed to the plaintiff herein and plaintiff is therefore entitled to judgment holding him to be the owner of the legal title in fee simple in and to the land involved free and clear of any claim on behalf of the defendant, and that the defendant is forever barred from asserting any right, claim or interest therein. It is so ordered. Defendant's oral motion for directed verdict treated as motion for judgment for defendant made at the close of the trial on April 17, 1963 and taken under advisement by the Court is now denied.

175 F.3d 1133 99 Cal. Daily Op. Serv. 3229, 1999 DailyJournal D.A.R. 4199UNITED STATES of America, Plaintiff-Appellant,v.4.0 ACRES OF LAND, more or less, situated in the City ofTucson, Pima County, State of Arizona, Defendant,andAllan J. Norville; Alfena A. Norville, wife, Defendants-Appellees. No. 98-15144. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 11, 1999.Decided May 4, 1999. Jeffrey C. Dobbins, United States Department of Justice, Washington, D.C., for the plaintiff-appellant. C. Lawrence Schubart, Stubbs & Schubart, Tucson, Arizona, for the defendants-appellees. Appeal from the United States District Court for the District of Arizona; Jack D. Shanstrom,1 District Judge, Presiding. D.C. Nos. CV 95-00131-JDS, CV 95-00763-JDS (Consolidated). Before: FLETCHER and TASHIMA, Circuit Judges, and FITZGERALD,2 District Judge. FLETCHER, Circuit Judge: 1 Allan J. Norville, a property owner in Tucson, Arizona, sought just compensation for his land that the United States condemned for a new federal courthouse building. After the first jury awarded $2.5 million, the district court granted Norville's motion for a new trial. 2 Upon retrial, the second jury returned a verdict of $8.4 million. On appeal, the United States asserts that the original jury verdict should not have been set aside and that the court's evidentiary rulings in the second trial deprived the jury of key information necessary to determine just compensation. We have jurisdiction pursuant to 28 U.S.C. § 1291. We conclude that the district court erred in granting a new trial; we reinstate the original jury verdict. FACTUAL and PROCEDURAL BACKGROUND 3 Developer Allan J. Norville ("Norville") owns 11 acres of land on the west side of downtown Tucson, Arizona. In 1994, the General Services Administration identified the four-acre northwest corner of Norville's 11-acre property for a new federal courthouse. Located at the corner of Congress and Granada Streets, the property is five blocks from the existing courthouse, and is vacant except for a parking lot on one portion and temporary structures that Norville constructed for an annual gem show that he hosts. It has water, electricity, and multiple phone lines that Norville installed. The United States condemned the land in October 1995 and estimated its value at $1,933,000. Norville objected to the valuation and sought a jury trial to determine the appropriate compensation.3 1. The First Trial 4 A nine-day jury trial occurred in February, 1997. The parties stipulated that Norville's "larger parcel" consisted of 11.3 acres, rounded to 475,050 square feet and that the land condemned for the courthouse was four acres, or 300,800 square feet.4 The "just compensation" figure in this case is the difference in the value of the 11-acre parcel "before" the taking and the remaining seven-acre parcel "after" the taking. To determine just compensation, the appraisers estimated a price-per-square foot "before" the taking for the larger, 11-acre parcel, and a price-per-square foot "after" the taking for the remaining seven-acre parcel. 5 The parties differed in their opinions of the highest and best use of the property before and after the taking. Relying on the property's potential for development as a hotel, retail shops, and exhibition hall, Norville claimed that just compensation exceeded $14 million. His appraisers calculated the value of the original eleven acre parcel, projected to be built out with a 500-room hotel and 50,000 square foot exhibition hall, at $38 per square foot before the taking. Because they forecast that the only reasonable use of the seven acres remaining after the condemnation would be for overflow parking or an unidentifiable investment for some unknown future use, they estimated a value of $11.94 per square foot after the taking. These computations resulted in "just compensation" of $14,460,348. 6 The government's appraiser, William Peterson, estimated just compensation at $3.2 million, using a value of $10.75 per square foot ($5,107,000) before the taking and $6.99 per square foot ($2,105,000) for the remaining property after the taking. He testified that holding the property for future investment was the highest and best use of the property because there was no current demand in Tucson for a high-rise hotel or retail space. 7 In addition to its own in-house appraiser, the government relied on Gene Dilmore ("Dilmore"), an independent appraiser, as a rebuttal witness. Dilmore had developed a widely used computer program for making density adjustments to the comparable sales that are used to derive accurate valuations for a subject property. Dilmore testified that Norville's appraisers had erred in their density adjustments to comparable sales, resulting in an inflated valuation for Norville's property.5 Using the same comparables and other assumptions as those used by Norville's appraisers, but properly corrected for density adjustments, Dilmore testified that their data would yield a just compensation value of $12.46 per square foot, or $1.4 million. 8 Dilmore emphasized that he was "not attempting to appraise the subject property" but that his analysis established "that the proper application of size adjustments to the proper pricing unit square foot of building built or allowable, whether using [Norville's appraisers'] sales as is, or as modified in the Corbett report, gives results extremely different from those in [Norville's appraisers'] report." The role of Dilmore's testimony has some bearing on whether competent evidence supported the jury's verdict and whether the verdict was outside the range of the evidence. 9 The government also called Susan Corbett ("Corbett"), another appraiser, as a rebuttal witness. Corbett testified that Norville's appraisers generated inflated valuations because they erred in their choice of comparables. Using the comparables that Corbett recommended, Dilmore derived a value of $8.04 per square foot. Corbett also testified that, although there was no significant change in the market over the last several years, Norville's appraisers had previously appraised the same property in 1990 and 1992, and estimated values of $10.68--$14 per square foot, substantially lower than the $38 value they testified to at trial. 10 The jurors also heard Norville testify that he did not want to lose any of his land and that he "never wanted the courthouse on my property." To impeach Norville on this point, the United States called the Hon. William D. Browning, a district judge in Tucson, who had been the Chief Judge in 1993, and the judge responsible for overseeing plans for the new courthouse.6 Norville insists that Judge Browning's appearance and testimony were unfair. 11 Judge Browning testified that Norville contacted him in 1993, before Norville's property was selected for the courthouse, and suggested that the new courthouse should be built on his land. According to Judge Browning, Norville suggested that he would build a hotel next to the courthouse that would share a garage with the courthouse. Norville declined to cross-examine Judge Browning. In addition to Judge Browning's testimony countering Norville's purported desire not to have the courthouse on his property, the government played a videotape showing Norville testifying to the County Council in 1996 about a project on his land that would include the courthouse. 12 A jury awarded "just compensation" of $2,526,625,7 which reflected a valuation of $6,888,225 ($14.50 per square foot) "before" the taking and $4,361,600 ($14.50 per square foot) for the remaining property "after" the taking. The jury award was lower than the government's appraisal but higher than the $1.4 million estimate that Dilmore derived using Norville's numbers adjusted for density. When the award is parsed on a per square foot basis, the "before" valuation falls between the values offered by the government and Norville, whereas the "after" valuation is higher than either party suggested. The jury apparently disagreed with the appraisers that the remaining seven acres would decline in value after condemnation and, therefore, declined to award "severance" damages. Norville insists that the jury's failure to award severance damages justified a new trial.2. Post-Trial Motions 13 After the jury announced its verdict, a newspaper article appeared in the Arizona Daily Star on March 1, 1997. The article quoted a juror who explained that Judge Browning's testimony convincingly undermined Norville's assertion that he never wanted the courthouse on his property. 14 Norville, dissatisfied with the jury award, filed a motion for new trial pursuant to Fed.R.Civ.P. 59, alleging that the verdict was (1) against the weight of the evidence because it was outside the range of qualified opinion testimony and failed to award severance damages; (2) the product of prejudice or tainted by the misconduct of counsel; (3) the product of inadmissible and/or overwhelmingly prejudicial testimony by Judge Browning and testimony concerning certain comparable sales; and (4) that the verdict unjustly deprived Norville of "full and fair" just compensation. After hearing, the district court granted Norville's motion for a new trial. 15 The judge concluded that the verdict was "against the weight of the evidence" because he thought that the verdict was "outside the range of the testimony in evidence is not supported and that the--fact that there was no severance damage given, I think that is overwhelming." The judge also commented that 16 I am deeply disturbed [about] the effect of Judge Browning's testimony. I feel I was err [sic] in that and it's difficult for me to admit that I was in error but when I heard the way the evidence was used and the testimony was used, the fact that he hadn't been disclosed as a witness in advance ... I feel that that was a err [sic] on the Court in allowing that testimony in. 17 The source of the judge's discomfort appeared to be the newspaper article that appeared shortly before Norville filed his motion for a new trial, as the judge said that "the only thing I know about the post verdict was the newspaper article that I read. And in that one of the jurors said that they gave overwhelming weight to Judge Browning's testimony." 18 In addition to expressing concerns about Judge Browning's testimony, the judge added that "I don't feel that ... Mr. Dilmore's testimony supports the verdict because he was not offering anything with respect to value. It was [a] non-opinion as to value." Together, those factors apparently convinced the court that the verdict was "against the weight of the evidence" and a "miscarriage of justice" and required a new trial. 19 The United States filed a motion urging the court to reconsider its decision to grant a new trial. The government also offered to consent to an additur of $475,375, raising the total compensation to $3,178,000,8 the value provided by its appraiser, Mr. Peterson. The district court denied its motion. 3. The Second Trial 20 Before the second trial commenced, the district court granted Norville's in limine motion to exclude Judge Browning's testimony and any reference, by any witness, to Norville's discussions with Judge Browning. The court also excluded Corbett's testimony. Her testimony would have rebutted the testimony of Norville's appraisers. 21 For the second trial, Norville hired two new appraisers, Herbert Havins and Donald Duncan. Havens appraised the property at $28 per square foot before the taking and $12 per square foot after the taking, making just compensation, $9,691,800. Duncan also appraised the property at $28 before, but only $8 after, making just compensation, $10,895,000. The government introduced the appraisal of Jay Vance who testified that the "before" value was $9 per square foot and the "after" value was $7.50, making just compensation $1.9 million. The second jury awarded $8,213,000 as just compensation.9 The United States timely appealed the court's decision to grant a new trial following the first trial and challenged the court's evidentiary rulings in the second trial. STANDARD OF REVIEW 22 We review for an abuse of discretion a district court's grant of a new trial. Anheuser-Busch v. Natural Bev. Distributors, 69 F.3d 337, 346 (9th Cir.1995); Roy v. Volkswagen of America, Inc., 896 F.2d 1174, 1176 (9th Cir.1990), amended, 920 F.2d 618 (1991). The trial court may grant a new trial, even though the verdict is supported by substantial evidence, if "the verdict is contrary to the clear weight of the evidence, or is based upon evidence which is false, or to prevent, in the sound discretion of the trial court, a miscarriage of justice." Oltz v. St. Peter's Community Hosp., 861 F.2d 1440, 1452 (9th Cir.1988). We must uphold the district court if any of its grounds for granting a new trial are reasonable. Id. The corollary, of course, is that a district court may not grant or deny a new trial merely because it would have arrived at a different verdict. Wilhelm v. Associated Container Transp. (Australia) Ltd., 648 F.2d 1197, 1198 (9th Cir.1981). Thus, we may find that a district court abused its discretion in ordering a new trial if the jury's verdict is not against the clear weight of the evidence. Roy, 896 F.2d at 1176. 23 We also review for abuse of discretion a district court's decision to exclude expert testimony. McKendall v. Crown Control Corp., 122 F.3d 803, 805 (9th Cir.1997). In this case, however, we need not rule on whether evidence was properly excluded in the second trial because we hold that the district court abused its discretion in granting the second trial. ANALYSIS 1. Just Compensation 24 Under the Fifth Amendment of the Constitution, the government may not take private property for public use without paying "just compensation" to the owner. U.S. CONST. amend. V. Where the taking is a partial taking, "just compensation" is the difference between the fair market value of the whole parcel immediately before the taking and the remainder after the taking. See United States v. Miller, 317 U.S. 369, 376, 63 S.Ct. 276, 87 L.Ed. 336 (1943). A "partial taking" occurs where, as here, the government condemns only a portion of the landowner's property. Id. ("the owner's compensation for that taking includes any element of value arising out of the relation of the part taken to the entire tract."); see also 71 Nichols on Eminent Domain § 12.03. If the value of the remaining land, on a unit basis, diminishes when the condemned parcel is removed from the larger whole, the landowner is entitled to compensation "both for that which is physically appropriated and for the diminution in value to the non-condemned property." U.S. v. 33.5 Acres, Okanogan County, 789 F.2d 1396, 1398 (9th Cir.1986). The diminution in value of the remaining property is called "severance damages." Id. See also, Miller, 317 U.S. at 376. Alternatively, if the taking benefits the remainder, "the benefit may be set off against the value of the land taken." Miller, 317 at 376. 25 A condemnation action awards "just compensation" to the property owner whose property has been taken by the government. United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970); McCandless v. United States, 298 U.S. 342, 348, 56 S.Ct. 764, 80 L.Ed. 1205 (1936). There is no Seventh Amendment right to a jury trial in a condemnation action. Reynolds, 397 U.S. at 18; see also Fed.R.Civ.P. 71A(h). However, if a party elects a jury, it is the jury that determines just compensation "within ground rules established by the trial judge." Reynolds, 397 U.S. at 20; Fed.R.Civ.P. 71A(h). The property owner bears the burden of proving the value of the condemned land. US ex rel. TVA v. Powelson, 319 U.S. 266, 273, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943). 2. New Trial 26 The district court granted a new trial because it concluded that Judge Browning's testimony was improperly admitted and that the award was against the weight of the evidence. If either ground could support a new trial, we may not reverse that decision. Norville insists that his seven acres remaining after condemnation have dramatically diminished in value on a per-square-foot basis compared to the value per square foot of his full 11-acre parcel. He argues, and the district court agreed, that the jury's failure to award severance damages resulted in an award outside the range of the evidence and contrary to the expert testimony. We disagree. When the evidence is viewed in its entirety, the jury award was consistent with the weight of the evidence. 27 a. Judge Browning's testimony 28 The district court relied heavily on its perception that the jury misused or was impermissibly prejudiced by Judge Browning's testimony. The only evidence of the impact of Judge Browning's testimony, however, is the newspaper article, published after the trial, which quoted one juror as saying 29 It stuck out to me a lot due to the fact that (Norville) said he never, ever wanted the courthouse in that corner of the property.... Judge Browning pointed to that corner of the property and said (Norville) wanted it here. I highly doubt that Judge Browning would lie in his own federal court, so I had to go with him. 30 A juror's observations may not be used as grounds to grant a new trial absent exceptional circumstances. Rule 606(b) of the Federal Rules of Evidence prohibits a juror from testifying about the jury's deliberations or how the jurors reached their conclusions unless "extraneous prejudicial information was improperly brought to the jury's attention." Neither party alleges that extraneous prejudicial information was brought to the jury's attention. Rule 606(b) also prohibits any evidence of any statement by a juror "concerning a matter about which the juror would be precluded from testifying" from being used in an inquiry into a jury's verdict. There was no official inquiry into the jury's verdict in this case. Apparently, the juror's post-verdict statements to the press distorted the lens through which the district court viewed the verdict. The statements should not have been considered.10 31 Judge Browning, as the judge in charge of the courthouse relocation project, possessed first hand knowledge concerning Norville's efforts to generate interest in his property for the courthouse. Judge Browning's testimony undercut Norville's testimony that the remaining land would be less desirable, and hence, less valuable, if the courthouse was built on the northern four acres. 32 Judge Browning's testimony may have influenced the jury's decision not to award severance damages, but the influence was not improper. The jury was entitled to conclude that Norville, an experienced developer in Tucson, would not have sought out the courthouse for his property if he thought it would diminish the value of his remaining property. Moreover, the parties fully briefed the issues surrounding Judge Browning's testimony before he was allowed to testify. There were no surprises at trial. Norville declined to cross examine Judge Browning and neither party requested limiting instructions regarding the jury's use of Judge Browning's testimony. We conclude, therefore, that Judge Browning's testimony was properly admitted. 33 b. Size of Jury Award 34 We must next determine whether the jury award was outside the range of the evidence. Norville insists that the "scope of the evidence rule" in condemnation cases requires that the fact finder award a value between the extremes of the expert valuations. See e.g., United States v. 1,162.65 Acres of Land, 498 F.2d 1298, 1301, n. 5 (8th Cir.1974)("The rule is that an award of just compensation will not be disturbed if it is within the scope of the evidence ... [which generally means] determining whether the award falls within the extremes of the adverse parties' experts' opinion testimony."). We have found no case that requires a jury award to fall between the extremes of expert appraisals without regard to other testimony that may bear on the property's valuation or that bears on the knowledge or credibility of the appraisers. In fact, we find just the opposite. Courts have rejected a rigid application of the scope of the evidence rule. See e.g., 1,162.65 Acres of Land, 498 F.2d at 1301, n. 5 ("where the totality of the evidence supports the award it will be upheld notwithstanding the fact it is outside the range of all the experts' valuations."). "The awarding of [a] lesser sum, or other difference of opinion between the trier of the facts and the witnesses, does not necessarily dictate the setting aside of the award .... especially ... if there is other evidence upon which the award has been based." Nichols on Eminent Domain, § 17.3, 17-42. 35 Here, we find ample evidence that supports the jury's decision to depart from the appraisers' recommendations. Although Norville observes, correctly, that Dilmore never appraised the property and did not offer his own, independent valuation, that observation misses the point. Dilmore was a rebuttal witness, not an independent appraiser. He accepted Norville's appraisers' data and their basic assumptions. His role, like that of Corbett, was to expose flaws in their use of the data and to offer a "corrected" valuation. 36 Much of Norville's argument relies on the absence of severance damages in the jury's award. He belabors the point that the jury's failure to award severance damages is dispositive because every expert testified to a diminished value of the land remaining after the taking. The jury's award translates into $14.50 per square foot before and after condemnation. We, of course, do not know whether the jury calculated its award on a per-square-foot basis, or whether it simply determined total "before" and "after" values, as the verdict form asked only for the total valuations. Even if we assume that the jury deliberately assigned identical before and after per-square-foot values, this suggests that the jury rejected the appraisers' contentions that the remaining seven acres was diminished in value after the courthouse corner was taken, and simply declined to award "severance damages." 37 The jury's valuation of $14.50 per square foot before condemnation falls between Norville's estimate of $38 and the government's estimate of $10.75. The $14.50 after condemnation figure, however, is higher than either Norville's value of $11.94 or the government's estimate of $6.99 per square foot. The United States contends that the jury's decision not to reduce the "after" value reflected a "reasonable compromise" that Norville was "unlikely to suffer any significant loss in value on the remaining property." The jury heard testimony from which it could have reasonably concluded that Norville's remaining seven acres would not diminish in value after the taking. Its verdict, therefore, was not against the clear weight of the evidence. 38 The government urges us not to view the "after" award in isolation. We agree that we cannot isolate the "after" award from testimony that might bear on whether the remaining property would diminish in value. The "totality of the evidence" approach that looks beyond the specific numbers used in the expert opinions is appropriate. See 1,162.65 Acres of Land, 498 F.2d at 1301. This approach reflects the discretion accorded the jury in weighing the credibility of witnesses and looking critically at experts' analyses. We cannot conclude, as Norville urges, that each component of the jury's award must be within the range of each component of expert testimony, and that evidence other than the appraisals has no role.11 Were we to adopt Norville's suggested approach, we would discredit the role of the jury and give unbounded discretion to the district judge to override a jury's verdict. We conclude that, here, the clear weight of the evidence justifies the jury's decision to find Norville's appraisals suspect and to reject the appraisers' assertions of diminished value in the remaining property. 39 Our conclusion is bolstered by our review of the jury instructions which neither party challenges on appeal. The jury was expressly entrusted with all credibility determinations including whether the evidence that Norville's remaining seven acres would diminish in value after the taking was reliable. Jury instruction number 11 explained the concept of severance damages. "The owner is entitled to just compensation, not only for the fair market value of the interest actually taken, but also for the amount equivalent to the lowering or diminution of the fair market value, if any, of the owner's interest in the remaining land, due to the severance of the land which was taken." (emphasis added). The jury, therefore, was acutely aware of the concept of severance damages. We note especially the following instructions to the jury regarding its consideration of witness testimony: 40 # 3: You may disbelieve all or any part of any witness's testimony. 41 # 4: A witness may be discredited or impeached by contradictory evidence; or by evidence that at some other time the witness has said or done something ... which is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. 42 # 17: The government must pay fair market value for that which it has acquired and severance damages, if any, to the remainder, but nothing more. (emphasis added). 43 # 20: [I]f you should decide that the reasons given in support of a landowner's opinion as to fair market value are not sound, you may reject that opinion; or you may give it any weight you may think it deserves. 44 # 21: Both sides in this case have offered opinion evidence as showing the value of the property taken herein. You are the sole judges of the credibility of the witnesses who have testified before you, and of the weight to be given the testimony of each. 45 # 22: You should consider each expert opinion received in evidence in this case, and give it such weight as you may think it deserves. If you should decide that any such opinion is not based upon sufficient study, investigation, knowledge, or experience, or if you should conclude that the reasons given in support of the opinion are not sound, you may reject it entirely. 46 # 25: In determining fair market value, you may consider not only the opinions of the various witnesses, but also other evidence which may assist you such as the location of the property, the surroundings and general environment, any peculiar suitability of the property for particular uses, and the reasonable probabilities as to future potential uses, if any for which the property was suitable or physically adaptable .... 47 "Rule 71A(h) ... makes clear that a jury in federal condemnation proceedings is to be confined to the performance of a single narrow but important function--the determination of a compensation award within ground rules established by the trial judge. " Reynolds, 397 U.S. at 20 (emphasis added). Although the judge may "tell the jury the criteria it must follow in determining what amount will constitute just compensation," the "precise issue of the amount of compensation" is left for the jury. Id. Nowhere did the judge instruct that the expert opinions were binding on the jury or bounded the value it could assign for just compensation. Neither party complains on appeal that the ground rules in the first trial were wrong. In light of the jury instructions and the evidence presented, the first jury's verdict should stand. From the totality of evidence, therefore, we cannot conclude that the jury delivered a verdict against the clear weight of the evidence. CONCLUSION 48 The district court erred in granting a new trial. Where the jury's verdict is not against the clear weight of the evidence, a district court abuses its discretion in ordering a new trial. See Roy, 896 F.2d at 1176. Such is the case here. We find no evidence of impropriety in the jury proceedings or in the jury instructions. The district court should not second-guess a jury verdict based on a juror's statements to the press after a verdict is entered. All of the evidence, including that which weakens appraisers' expert opinions as to the value of the property or the likelihood that the remainder will diminish in value must be considered. Severance damages need not be awarded in every partial takings case. The jury award was not outside the range of evidence presented and a new trial should not have been granted. 49 We reverse the grant of a new trial and instruct the district court to reinstate the original jury verdict. In light of our ruling, we need not address the United States' contention that the court erred in rejecting its offer of additur instead of a new trial or the alleged errors in the court's pre-trial rulings in the second trial. 50 REVERSED with directions. 1 The Honorable Jack D. Shanstrom, United States District Judge of the District of Montana, sitting by designation as the trial judge 2 The Honorable James M. Fitzgerald, United States Senior District Judge, District of Alaska, sitting by designation on the Court of Appeals 3 Appropriate compensation may be determined by a jury or based on the report of a three-member commission appointed by the district court pursuant to Fed.R.Civ.P. 71A(h) 4 The parties agreed to these estimates of square footage and these numbers were used on the verdict forms in both trials 5 Density adjustments are used when comparing the sales prices of land and buildings of different sizes 6 Before allowing Judge Browning to testify, the district court allowed the parties to brief the issue of whether Judge Browning should be allowed to testify and to conduct voir dire of Judge Browning 7 The total jury award was $2,702,625, which included $160,000 for the value of site improvements and $16,000 for a "temporary take," the rental value of the property taken before the title transferred. The parties stipulated to these amounts, which remained unchanged in each trial. Thus, only the "just compensation" figures for the land itself are used for comparison here 8 The $3,178,000 reflects Peterson's condemnation value of $3,002,000 plus the stipulated values of $176,000 for site improvements and rental value. The jury verdict of $2,702,625 plus the government's proposed additur would rise Norville's total compensation to $3,178,000, the total value that Peterson testified to at trial 9 With the addition of $176,000 in stipulated compensation, the total jury award was $8,389,099 10 If we ignore for the moment the court's improper use of the juror's statements, those statements, taken in context, do not support the court's decision to grant a new trial. The balance of the quotes from the juror explained that the jury carefully considered the full range of evidence presented and did not find Norville's appraisers credible. For example, the same juror stated, "[t]hey never proved to us that the market wanted what the Norvilles said they wanted to do.... We couldn't accept his vision (for) the future. I just don't see it happening." 11 The government observes that the jury could have reached an identical total valuation with a different combination that included severance damages

509 U.S. 764 (1993) HARTFORD FIRE INSURANCE CO. et al. v. CALIFORNIA et al. No. 91-1111. United States Supreme Court. Argued February 23, 1993. Decided June 28, 1993.[*] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *765 *766 Souter, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and IIโ€”A, the opinion of the Court with respect to Parts III and IV, in which Rehnquist, C. J., and White, Blackmun, and Stevens, JJ., joined, and an opinion concurring in the judgment with respect to Part IIโ€”B, in which White, Blackmun, and Stevens, JJ., joined. Scalia, J., delivered the opinion of the Court with respect to Part I, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined, and a dissenting opinion with respect to Part II, in which O'Connor, Kennedy, and Thomas, JJ., joined, post, p. 800. Stephen M. Shapiro argued the cause for petitioners in No. 91-1111. With him on the briefs were Kenneth S. Geller, Mark I. Levy, Roy T. Englert, Jr., Timothy S. Bishop, Ronald A. Jacks, Richard E. Sherwood, William A. Montgomery, William M. Hannay, John G. Harkins, Jr., Eleanor Morris Illoway, Bartlett H. McGuire, Douglas I. Brandon, James S. Greenan, Raoul D. Kennedy, Alan H. Silberman, Stuart Altschuler, Peter O. Glaessner, David L. Foster, Gregory L. Harris, Frank Rothman, Timothy E. Carr, Kent E. Keller, Lewis A. Kaplan, Allan Blumstein, Ronald C. Redcay, Michael M. Uhlmann, Robert B. Green, Stephen M. Axinn, Michael L. Weiner, James M. Burns, Eugene F. Bannigan, Christine C. Burgess, Robert M. Mitchell, Philip H. Curtis, Zoe Baird, Jane Kelly, Joseph P. Giasi, Jr., Joseph A. Gervasi, Debra J. Anderson, Michael S. Wilder, Jeffrey L. Morris, Edmond F. Rondepierre, and John J. Hayden. Molly S. Boast argued the cause for petitioners in No. 91โ€” 1128. With her on the briefs for petitioners Merrett Underwriting Agency Management Ltd. et al. were Lawrence W. Pollack, Andreas F. Lowenfeld, Barry L. Bunshoft, Eric J. Sinrod, David W. Slaby, Michael L. McCluggage, James T. Nyeste, Michael R. Blankshain, Jerome N. Lerch, Paul R. Haerle, Martin Frederic Evans, Donald Francis Donovan, and Colby A. Smith. Barry R. Ostrager, Eleanor M. Fox, Mary Kay Vyskocil, and Kathryn A. Clokey filed briefs for petitioner Sturge Reinsurance Syndicate Management Ltd. *767 Laurel A. Price, Deputy Attorney General of New Jersey, argued the cause for respondents in both cases. With her on the brief for state respondents in No. 91-1111 and on the brief for state respondents in No. 91-1128 were J. Joseph Curran, Jr., Attorney General of Maryland, Ellen S. Cooper, Assistant Attorney General, James H. Evans, Attorney General of Alabama, Charles E. Cole, Attorney General of Alaska, Jim Forbes, Assistant Attorney General, Grant Woods, Attorney General of Arizona, Suzanne M. Dallimore, Assistant Attorney General, Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Sanford N. Gruskin, Assistant Attorney General, Thomas Greene, Supervising Deputy Attorney General, Kathleen E. Foote, Deputy Attorney General, Gale A. Norton, Attorney General of Colorado, James R. Lewis, Assistant Attorney General, Richard Blumenthal, Attorney General of Connecticut, Robert M. Langer and William M. Rubenstein, Assistant Attorneys General, Richard T. Ieyoub, Attorney General of Louisiana, Jenifer Schaye, Assistant Attorney General, Scott Harshbarger, Attorney General of Massachusetts, Thomas M. Alpert and George K. Weber, Assistant Attorneys General, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Thomas F. Pursell, Deputy Attorney General, Lisa Tiegel, Special Assistant Attorney General, Marc Racicot, Attorney General of Montana, Paul Johnson, Assistant Attorney General, Robert J. Del Tufo, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, George Sampson, Richard L. Schwartz and Gary J. Malone, Assistant Attorneys General, Lee Fisher, Attorney General of Ohio, Doreen C. Johnson and Marc B. Bandman, Assistant Attorneys General, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Thomas L. Welch and David R. Weyl, Deputy Attorneys General, Kenneth O. Eikenberry, Attorney General of Washington, John R. Ellis, Deputy Attorney General, Tina *768 E. Kondo, Assistant Attorney General, Mario J. Palumbo, Attorney General of West Virginia, Donald L. Darling, Deputy Attorney General, Donna S. Quesenberry, Senior Assistant Attorney General, James E. Doyle, Attorney General of Wisconsin, and Kevin J. O'Connor, Assistant Attorney General. H. Laddie Montague, Jr., Howard Langer, Nicholas E. Chimicles, Eugene Gressman, Jerry S. Cohen, and Robert Miller filed a brief for private respondents in both cases. Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Bryson, Acting Assistant Attorney General Clark, Robert A. Long, Jr., Robert B. Nicholson, Marion L. Jetton, Charles S. Stark, and Edward T. Hand.[โ€”] *769 Justice Souter announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IIโ€”A, III, and IV, and an opinion concurring in the judgment with respect to Part IIโ€”B.[*] The Sherman Act makes every contract, combination, or conspiracy in unreasonable restraint of interstate or foreign commerce illegal. 26 Stat. 209, as amended, 15 U. S. C. ง 1. These consolidated cases present questions about the application of that Act to the insurance industry, both here and abroad. The plaintiffs (respondents here) allege that both domestic and foreign defendants (petitioners here) violated the Sherman Act by engaging in various conspiracies to affect the American insurance market. A group of domestic defendants argues that the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U. S. C. ง 1011 et seq., precludes application of the Sherman Act to the conduct alleged; a group of foreign defendants argues that the principle of international comity requires the District Court to refrain from exercising jurisdiction over certain claims against it. We hold that most of the domestic defendants' alleged conduct is not immunized *770 from antitrust liability by the McCarran-Ferguson Act, and that, even assuming it applies, the principle of international comity does not preclude District Court jurisdiction over the foreign conduct alleged. I The two petitions before us stem from consolidated litigation comprising the complaints of 19 States and many private plaintiffs alleging that the defendants, members of the insurance industry, conspired in violation of ง 1 of the Sherman Act to restrict the terms of coverage of commercial general liability (CGL) insurance[1] available in the United States. Because the cases come to us on motions to dismiss, we take the allegations of the complaints as true.[2] A According to the complaints, the object of the conspiracies was to force certain primary insurers (insurers who sell insurance directly to consumers) to change the terms of their *771 standard CGL insurance policies to conform with the policies the defendant insurers wanted to sell. The defendants wanted four changes.[3] First, CGL insurance has traditionally been sold in the United States on an "occurrence" basis, through a policy obligating the insurer "to pay or defend claims, whenever made, resulting from an accident or `injurious exposure to conditions' that occurred during the [specific time] period the policy was in effect." App. 22 (Cal. Complaint ถ 52). In place of this traditional "occurrence" trigger of coverage, the defendants wanted a "claims-made" trigger, obligating the insurer to pay or defend only those claims made during the policy period. Such a policy has the distinct advantage for the insurer that when the policy period ends without a claim having been made, the insurer can be certain that the policy will not expose it to any further liability. Second, the defendants wanted the "claims-made" policy to have a "retroactive date" provision, which would further restrict coverage to claims based on incidents that occurred after a certain date. Such a provision eliminates the risk that an insurer, by issuing a claims-made policy, would assume liability arising from incidents that occurred before the policy's effective date, but remained undiscovered or caused no immediate harm. Third, CGL insurance has traditionally covered "sudden and accidental" pollution; the defendants wanted to eliminate that coverage. Finally, CGL insurance has traditionally provided that the insurer would bear the legal costs of defending covered claims against the insured without regard to the policy's stated limits of coverage; the defendants *772 wanted legal defense costs to be counted against the stated limits (providing a "legal defense cost cap"). To understand how the defendants are alleged to have pressured the targeted primary insurers to make these changes, one must be aware of two important features of the insurance industry. First, most primary insurers rely on certain outside support services for the type of insurance coverage they wish to sell. Defendant Insurance Services Office, Inc. (ISO), an association of approximately 1,400 domestic property and casualty insurers (including the primary insurer defendants, Hartford Fire Insurance Company, Allstate Insurance Company, CIGNA Corporation, and Aetna Casualty and Surety Company), is the almost exclusive source of support services in this country for CGL insurance. See id., at 19 (Cal. Complaint ถ 38). ISO develops standard policy forms and files or lodges them with each State's insurance regulators; most CGL insurance written in the United States is written on these forms. Ibid. (Cal. Complaint ถ 39); id., at 74 (Conn. Complaint ถ 50). All of the "traditional" features of CGL insurance relevant to this litigation were embodied in the ISO standard CGL insurance form that had been in use since 1973 (1973 ISO CGL form). Id., at 22 (Cal. Complaint ถถ 51-54); id., at 75 (Conn. Complaint ถถ 56โ€” 58). For each of its standard policy forms, ISO also supplies actuarial and rating information: it collects, aggregates, interprets, and distributes data on the premiums charged, claims filed and paid, and defense costs expended with respect to each form, id., at 19 (Cal. Complaint ถ 39); id., at 74 (Conn. Complaint ถถ 51-52), and on the basis of these data it predicts future loss trends and calculates advisory premium rates, id., at 19 (Cal. Complaint ถ 39); id., at 74 (Conn. Complaint ถ 53). Most ISO members cannot afford to continue to use a form if ISO withdraws these support services. See id., at 32-33 (Cal. Complaint ถถ 97, 99). Second, primary insurers themselves usually purchase insurance to cover a portion of the risk they assume from the *773 consumer. This so-called "reinsurance" may serve at least two purposes, protecting the primary insurer from catastrophic loss, and allowing the primary insurer to sell more insurance than its own financial capacity might otherwise permit. Id., at 17 (Cal. Complaint ถ 29). Thus, "[t]he availability of reinsurance affects the ability and willingness of primary insurers to provide insurance to their customers." Id., at 18 (Cal. Complaint ถ 34); id., at 63 (Conn. Complaint ถ 4(p)). Insurers who sell reinsurance themselves often purchase insurance to cover part of the risk they assume from the primary insurer; such "retrocessional reinsurance" does for reinsurers what reinsurance does for primary insurers. See ibid. (Conn. Complaint ถ 4(r)). Many of the defendants here are reinsurers or reinsurance brokers, or play some other specialized role in the reinsurance business; defendant Reinsurance Association of America (RAA) is a trade association of domestic reinsurers. B The prehistory of events claimed to give rise to liability starts in 1977, when ISO began the process of revising its 1973 CGL form. Id., at 22 (Cal. Complaint ถ 55). For the first time, it proposed two CGL forms (1984 ISO CGL forms), one the traditional "occurrence" type, the other "with a new `claims-made' trigger." Id., at 22-23 (Cal. Complaint ถ 56). The "claims-made" form did not have a retroactive date provision, however, and both 1984 forms covered "`sudden and accidental' pollution" damage and provided for unlimited coverage of legal defense costs by the insurer. Id., at 23 (Cal. Complaint ถถ 59-60). Within the ISO, defendant Hartford Fire Insurance Company objected to the proposed 1984 forms; it desired elimination of the "occurrence" form, a retroactive date provision on the "claims-made" form, elimination of sudden and accidental pollution coverage, and a legal defense cost cap. Defendant Allstate Insurance Company also expressed its desire for a retroactive date provision on *774 the "claims-made" form. Id., at 24 (Cal. Complaint ถ 61). Majorities in the relevant ISO committees, however, supported the proposed 1984 CGL forms and rejected the changes proposed by Hartford and Allstate. In December 1983, the ISO Board of Directors approved the proposed 1984 forms, and ISO filed or lodged the forms with state regulators in March 1984. Ibid. (Cal. Complaint ถ 62). Dissatisfied with this state of affairs, the defendants began to take other steps to force a change in the terms of coverage of CGL insurance generally available, steps that, the plaintiffs allege, implemented a series of conspiracies in violation of ง 1 of the Sherman Act. The plaintiffs recount these steps as a number of separate episodes corresponding to different claims for relief in their complaints;[4] because it will become important to distinguish among these counts and the acts and defendants associated with them, we will note these correspondences. The first four Claims for Relief in the California Complaint, id., at 36-43 (ถถ 111-130), and the Second Claim for Relief in the Connecticut Complaint, id., at 90-92 (ถถ 120โ€” 124), charge the four domestic primary insurer defendants and varying groups of domestic and foreign reinsurers, brokers, and associations with conspiracies to manipulate the ISO CGL forms. In March 1984, primary insurer Hartford persuaded General Reinsurance Corporation (General Re), the largest American reinsurer, to take steps either to procure desired changes in the ISO CGL forms, or "failing that, [to] `derail' the entire ISO CGL forms program." Id., at 24 (Cal. Complaint ถ 64). General Re took up the matter with its trade association, RAA, which created a special committee that met and agreed to "boycott" the 1984 ISO CGL forms unless a retroactive-date provision was added to the *775 claims-made form, and a pollution exclusion and defense cost cap were added to both forms. Id., at 24-25 (Cal. Complaint ถถ 65-66). RAA then sent a letter to ISO "announc[ing] that its members would not provide reinsurance for coverages written on the 1984 CGL forms," id., at 25 (Cal. Complaint ถ 67), and Hartford and General Re enlisted a domestic reinsurance broker to give a speech to the ISO Board of Directors, in which he stated that no reinsurers would "break ranks" to reinsure the 1984 ISO CGL forms. Ibid. (Cal. Complaint ถ 68). The four primary insurer defendants (Hartford, Aetna, CIGNA, and Allstate) also encouraged key actors in the London reinsurance market, an important provider of reinsurance for North American risks, to withhold reinsurance for coverages written on the 1984 ISO CGL forms. Id., at 25-26 (Cal. Complaint ถถ 69-70). As a consequence, many London-based underwriters, syndicates, brokers, and reinsurance companies informed ISO of their intention to withhold reinsurance on the 1984 forms, id., at 26-27 (Cal. Complaint ถถ 71-75), and at least some of them told ISO that they would withhold reinsurance until ISO incorporated all four desired changes, see supra, at 771, and n. 3, into the ISO CGL forms. App. 26 (Cal. Complaint ถ 74). For the first time ever, ISO invited representatives of the domestic and foreign reinsurance markets to speak at an ISO Executive Committee meeting. Id., at 27-28 (Cal. Complaint ถ 78). At that meeting, the reinsurers "presented their agreed upon positions that there would be changes in the CGL forms or no reinsurance." Id., at 29 (Cal. Complaint ถ 82). The ISO Executive Committee then voted to include a retroactive-date provision in the claims-made form, and to exclude all pollution coverage from both new forms. (But it neither eliminated the occurrence form, nor added a legal defense cost cap.) The 1984 ISO CGL forms were then withdrawn from the marketplace, and replaced with forms (1986 ISO CGL forms) containing the new provisions. Ibid. *776 (Cal. Complaint ถ 84). After ISO got regulatory approval of the 1986 forms in most States where approval was needed, it eliminated its support services for the 1973 CGL form, thus rendering it impossible for most ISO members to continue to use the form. Id., at 32-33 (Cal. Complaint ถถ 97, 99). The Fifth Claim for Relief in the California Complaint, id., at 43-44 (ถถ 131-135), and the virtually identical Third Claim for Relief in the Connecticut Complaint, id., at 92-94 (ถถ 125-129), charge a conspiracy among a group of London reinsurers and brokers to coerce primary insurers in the United States to offer CGL coverage only on a claims-made basis. The reinsurers collectively refused to write new reinsurance contracts for, or to renew longstanding contracts with, "primary . . . insurers unless they were prepared to switch from the occurrence to the claims-made form," id., at 30 (Cal. Complaint ถ 88); they also amended their reinsurance contracts to cover only claims made before a "`sunset date,' " thus eliminating reinsurance for claims made on occurrence policies after that date, id., at 31 (Cal. Complaint ถถ 90-92). The Sixth Claim for Relief in the California Complaint, id., at 45-46 (ถถ 136-140), and the nearly identical Fourth Claim for Relief in the Connecticut Complaint, id., at 94-95 (ถถ 130-134), charge another conspiracy among a somewhat different group of London reinsurers to withhold reinsurance for pollution coverage. The London reinsurers met and agreed that all reinsurance contracts covering North American casualty risks, including CGL risks, would be written with a complete exclusion for pollution liability coverage. Id., at 32 (Cal. Complaint ถถ 94-95). In accordance with this agreement, the parties have in fact excluded pollution liability coverage from CGL reinsurance contracts since at least late 1985. Ibid. (Cal. Complaint ถ 94). *777 The Seventh Claim for Relief in the California Complaint, id., at 46-47 (ถถ 141-145), and the closely similar Sixth Claim for Relief in the Connecticut Complaint, id., at 97-98 (ถถ 140โ€” 144), charge a group of domestic primary insurers, foreign reinsurers, and the ISO with conspiring to restrain trade in the markets for "excess" and "umbrella" insurance by drafting model forms and policy language for these types of insurance, which are not normally offered on a regulated basis. Id., at 33 (Cal. Complaint ถ 101). The ISO Executive Committee eventually released standard language for both "occurrence" and "claims-made" umbrella and excess policies; that language included a retroactive date in the claims-made version, and an absolute pollution exclusion and a legal defense cost cap in both versions. Id., at 34 (Cal. Complaint ถ 105). Finally, the Eighth Claim for Relief in the California Complaint, id., at 47-49 (ถถ 146-150), and its counterpart in the Fifth Claim for Relief in the Connecticut Complaint, id., at 95-97 (ถถ 135-139), charge a group of London and domestic retrocessional reinsurers[5] with conspiring to withhold retrocessional reinsurance for North American seepage, pollution, and property contamination risks. Those retrocessional reinsurers signed, and have implemented, an agreement to use their "`best endeavors' " to ensure that they would provide such reinsurance for North American risks "`only . . . where the original business includes a seepage and pollution exclusion *778 wherever legal and applicable.' " Id., at 35 (Cal. Complaint ถ 108).[6] C Nineteen States and a number of private plaintiffs filed 36 complaints against the insurers involved in this course of events, charging that the conspiracies described above violated ง 1 of the Sherman Act, 15 U. S. C. ง 1. After the actions had been consolidated for litigation in the Northern District of California, the defendants moved to dismiss for failure to state a cause of action, or, in the alternative, for summary judgment. The District Court granted the motions to dismiss. In re Insurance Antitrust Litigation, 723 F. Supp. 464 (1989). It held that the conduct alleged fell within the grant of antitrust immunity contained in ง 2(b) of the McCarran-Ferguson Act, 15 U. S. C. ง 1012(b), because it amounted to "the business of insurance" and was "regulated by State Law" within the meaning of that section; none of the conduct, in the District Court's view, amounted to a "boycott" within the meaning of the ง 3(b) exception to that grant of immunity. 15 U. S. C. ง 1013(b). The District Court also dismissed the three claims that named only certain London-based defendants,[7] invoking international comity and applying the Ninth Circuit's decision in Timberlane Lumber Co. v. Bank of America, N. T. & S. A., 549 F. 2d 597 (1976). The Court of Appeals reversed. In re Insurance Antitrust Litigation, 938 F. 2d 919 (CA9 1991). Although it held the conduct involved to be "the business of insurance" within the meaning of ง 2(b), it concluded that the defendants could *779 not claim McCarran-Ferguson Act antitrust immunity for two independent reasons. First, it held, the foreign reinsurers were beyond the regulatory jurisdiction of the States; because their activities could not be "regulated by State Law" within the meaning of ง 2(b), they did not fall within that section's grant of immunity. Although the domestic insurers were "regulated by State Law," the court held, they forfeited their ง 2(b) exemption when they conspired with the nonexempt foreign reinsurers. Second, the Court of Appeals held that, even if the conduct alleged fell within the scope of ง 2(b), it also fell within the ง 3(b) exception for "act[s] of boycott, coercion, or intimidation." Finally, as to the three claims brought solely against foreign defendants, the court applied its Timberlane analysis, but concluded that the principle of international comity was no bar to exercising Sherman Act jurisdiction. We granted certiorari in No. 91-1111 to address two narrow questions about the scope of McCarran-Ferguson Act antitrust immunity,[8] and in No. 91-1128 to address the application of the Sherman Act to the foreign conduct at issue.[9] 506 U. S. 814 (1992). We now affirm in part, reverse in part, and remand. *780 II The petition in No. 91-1111 touches on the interaction of two important pieces of economic legislation. The Sherman Act declares "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations,. . . to be illegal."15 U. S. C. ง 1. The McCarran-Ferguson Act provides that regulation of the insurance industry is generally a matter for the States, 15 U. S. C. ง 1012(a), and (again, generally) that "[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance," ง 1012(b). Section 2(b) of the McCarranFerguson Act makes it clear nonetheless that the Sherman Act applies "to the business of insurance to the extent that such business is not regulated by State Law," ง 1012(b), and ง 3(b) provides that nothing in the McCarran-Ferguson Act "shall render the . . . Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation," ง 1013(b). Petitioners in No. 91-1111 are all of the domestic defendants in the consolidated cases: the four domestic primary insurers, the domestic reinsurers, the trade associations ISO and RAA, and the domestic reinsurance broker Thomas A. Greene & Company, Inc. They argue that the Court of Appeals erred in holding, first, that their conduct, otherwise immune from antitrust liability under ง 2(b) of the McCarranFerguson Act, lost its immunity when they conspired with the foreign defendants, and, second, that their conduct amounted to "act[s] of boycott" falling within the exception to antitrust immunity set out in ง 3(b). We conclude that the Court of Appeals did err about the effect of conspiring with foreign defendants, but correctly decided that all but one of the complaints' relevant Claims for Relief are fairly read to allege conduct falling within the "boycott" exception to McCarran-Ferguson Act antitrust immunity. We therefore *781 affirm the Court of Appeals's judgment that it was error for the District Court to dismiss the complaints on grounds of McCarran-Ferguson Act immunity, except as to the one claim for relief that the Court of Appeals correctly found to allege no boycott. A By its terms, the antitrust exemption of ง 2(b) of the McCarran-Ferguson Act applies to "the business of insurance" to the extent that such business is regulated by state law. While "business" may mean "[a] commercial or industrial establishment or enterprise," Webster's New International Dictionary 362 (2d ed. 1942), the definite article before "business" in ง 2(b) shows that the word is not used in that sense, the phrase "the business of insurance" obviously not being meant to refer to a single entity. Rather, "business" as used in ง 2(b) is most naturally read to refer to "[m]ercantile transactions; buying and selling; [and] traffic." Ibid. The cases confirm that "the business of insurance" should be read to single out one activity from others, not to distinguish one entity from another. In Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205 (1979), for example, we held that ง 2(b) did not exempt an insurance company from antitrust liability for making an agreement fixing the price of prescription drugs to be sold to Blue Shield policyholders. Such activity, we said, "would be exempt from the antitrust laws if Congress had extended the coverage of the McCarran-Ferguson Act to the `business of insurance companies.' But that is precisely what Congress did not do." Id., at 233 (footnote omitted); see SEC v. National Securities, Inc., 393 U. S. 453, 459 (1969) (the McCarran-Ferguson Act's "language refers not to the persons or companies who are subject to state regulation, but to laws `regulating the business of insurance' ") (emphasis in original). And in Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119 (1982), we explicitly framed the question as whether "a particular practice is part of the `business of insurance' exempted from the antitrust *782 laws by ง 2(b)," id., at 129 (emphasis added), and each of the three criteria we identified concerned a quality of the practice in question: "first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry," ibid. (emphasis in original). The Court of Appeals did not hold that, under these criteria, the domestic defendants' conduct fell outside "the business of insurance"; to the contrary, it held that that condition was met.[10] See 938 F. 2d, at 927. Nor did it hold the domestic defendants' conduct to be "[un]regulated by State Law." Rather, it constructed an altogether different chain of reasoning, the middle link of which comes from a sentence in our opinion in Royal Drug Co. "[R]egulation . . . of foreign reinsurers," the Court of Appeals explained, "is beyond the jurisdiction of the states," 938 F. 2d, at 928, and hence ง 2(b) does not exempt foreign reinsurers from antitrust liability, because their activities are not "regulated by State Law." Under Royal Drug Co., "an exempt entity forfeits antitrust exemption by acting in concert with nonexempt parties." 440 U. S., at 231. Therefore, the domestic insurers, by acting in concert with the nonexempt foreign insurers, lost their McCarran-Ferguson Act antitrust immunity. See 938 F. 2d, at 928. This reasoning fails, however, because even if we were to agree that foreign reinsurers were not subject to state regulation (a point on which we express no opinion), the quoted language from Royal Drug Co., read *783 in context, does not state a proposition applicable to this litigation. The full sentence from Royal Drug Co. places the quoted fragment in a different light. "In analogous contexts," we stated, "the Court has held that an exempt entity forfeits antitrust exemption by acting in concert with nonexempt parties." 440 U. S., at 231. We then cited two cases dealing with the Capper-Volstead Act, which immunizes from liability under ง 1 of the Sherman Act particular activities of certain persons "engaged in the production of agricultural products."[11] Capper-Volstead Act, ง 1, 42 Stat. 388, 7 U. S. C. ง 291; see Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384 (1967); United States v. Borden Co., 308 U. S. 188 (1939). Because these cases relied on statutory language referring to certain "persons," whereas we specifically acknowledged in Royal Drug Co. that the McCarranFerguson Act immunizes activities rather than entities, see 440 U. S., at 232-233, the analogy we were drawing was of course a loose one. The agreements that insurance companies made with "parties wholly outside the insurance industry," id., at 231, we noted, such as the retail pharmacists involved in Royal Drug Co. itself, or "automobile body repair shops or landlords," id., at 232 (footnote omitted), are unlikely *784 to be about anything that could be called "the business of insurance," as distinct from the broader "`business of insurance companies,' " id., at 233. The alleged agreements at issue in the instant litigation, of course, are entirely different; the foreign reinsurers are hardly "wholly outside the insurance industry," and respondents do not contest the Court of Appeals's holding that the agreements concern "the business of insurance." These facts neither support even the rough analogy we drew in Royal Drug Co. nor fall within the rule about acting in concert with nonexempt parties, which derived from a statute inapplicable here. Thus, we think it was error for the Court of Appeals to hold the domestic insurers bereft of their McCarran-Ferguson Act exemption simply because they agreed or acted with foreign reinsurers that, we assume for the sake of argument, were "not regulated by State Law."[12] B That the domestic defendants did not lose their ง 2(b) exemption by acting together with foreign reinsurers, however, is not enough reason to reinstate the District Court's dismissal order, for the Court of Appeals reversed that order on two independent grounds. Even if the participation of foreign reinsurers did not affect the ง 2(b) exemption, the Court of Appeals held, the agreements and acts alleged by the plaintiffs constitute "agreement[s] to boycott" and "act[s] of boycott [and] coercion" within the meaning of ง 3(b) of the McCarran-Ferguson Act, which makes it clear that the Sherman Act applies to such agreements and acts regardless of the ง 2(b) exemption. See 938 F. 2d, at 928. I agree with *785 the Court that, construed in favor of the plaintiffs, the First, Second, Third, and Fourth Claims for Relief in the California Complaint, and the First and Second Claims for Relief in the Connecticut Complaint, allege one or more ง 3(b) "act[s] of boycott," and are thus sufficient to survive a motion to dismiss. See infra, at 789-790; post, at 811. In reviewing the motions to dismiss, however, the Court has decided to use what I believe to be an overly narrow definition of the term "boycott" as used in ง 3(b), confining it to those refusals to deal that are "unrelated" or "collateral" to the objective sought by those refusing to deal. Post, at 803. I do not believe that the McCarran-Ferguson Act or our precedents warrant such a cramped reading of the term. The majority and I find common ground in four propositions concerning ง 3(b) boycotts, as established in our decisions in St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531 (1978), and United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944). First, as we noted in St. Paul, our only prior decision construing "boycott" as it appears in ง 3(b), only those refusals to deal involving the coordinated action of multiple actors constitute ง 3(b) boycotts: "conduct by individual actors falling short of concerted activity is simply not a `boycott' within [the meaning of] ง 3(b)." 438 U. S., at 555; see post, at 800 ("`boycott' " used "to describe . . . collective action"); post, at 801 ("To `boycott' means `[t]o combine in refusing to hold relations' " (citation omitted)). Second, a ง 3(b) boycott need not involve an absolute refusal to deal.[13] A primary goal of the alleged conspirators in South-Eastern Underwriters, as we described it, was "to force nonmember insurance companies into the conspiracies." [14] 322 U. S., at 535; cf. Joint Hearing on S. 1362, H. R. *786 3269, and H. R. 3270 before the Subcommittees of the Senate Committee on the Judiciary, 78th Cong., 1st Sess., pt. 2, p. 335 (1943) (statement of Edward L. Williams, President, Insurance Executives Association) ("[T]he companies that want to come into the Interstate Underwriters Board can come in there. I do not know of any company that is turned down"). Thus, presumably, the refusals to deal orchestrated by the defendants would cease if the targets agreed to join the association and abide by its terms. See post, at 801 ("The refusal to deal may . . . be conditional" (emphasis omitted)). Third, contrary to petitioners' contentions, see Brief for Petitioners in No. 91-1111, pp. 32, n. 14, 34, 38-39, a ง 3(b) boycott need not entail unequal treatment of the targets of the boycott and its instigators. Some refusals to deal (those, perhaps, which are alleged to violate only ง 2 of the Sherman Act[15]) may have as their object the complete destruction of the business of competitors; these may well involve unconditional discrimination against the targets. Other refusals to deal, however, may seek simply to prevent competition as to the price or features of the product sold; and these need not depend on unequal treatment of the targets. Assuming, *787 as the South-Eastern Underwriters Court appears to have done, that membership in the defendant association was open to all insurers, the association is most readily seen as having intended to treat all insurers equally: they all had the choice either to join the association and abide by its rules, or to be subjected to the "boycotts," and acts of coercion and intimidation, alleged in that case. See post, at 808 (describing South-Eastern Underwriters as involving a "boycott, by primary insurers, of competitors who refused to join their price-fixing conspiracy"). Fourth, although a necessary element, "concerted activity" is not, by itself, sufficient for a finding of "boycott" under ง 3(b). Were this the case, we recognized in Barry, ง 3(b) might well "`devour the broad antitrust immunity bestowed by ง 2(b),' " 438 U. S., at 545, n. 18 (quoting id., at 559 (Stewart, J., dissenting)), since every "contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce," 15 U. S. C. ง 1, involves "concerted activity." Thus, we suggested, simple price fixing has been treated neither as a boycott nor as coercion "in the absence of any additional enforcement activity." 438 U. S., at 545, n. 18; see post, at 804 (contending that simple concerted agreements on contract terms are not properly characterized as boycotts). Contrary to the majority's view, however, our decisions have suggested that "enforcement activity" is a multifarious concept. The South-Eastern Underwriters Court, which coined the phrase "boycotts[,] . . . coercion and intimidation," 322 U. S., at 535; see n. 14, supra, provides us with a list of actions that, it finds, are encompassed by these terms. "Companies not members of [the association]," it states, "were cut off from the opportunity to reinsure their risks, and their services and facilities were disparaged; independent sales agencies who defiantly represented non[association] companies were punished by a withdrawal of the right to represent the members of [the association]; and persons needing insurance who purchased from non[association] *788 companies were threatened with boycotts and withdrawal of all patronage." 322 U. S., at 535-536. Faced with such a list, and with all of the other instances in which we have used the term "boycott," we rightly came to the conclusion in Barry that, as used in our cases, the term does not refer to a "`unitary phenomenon.' " 438 U. S., at 543 (quoting P. Areeda, Antitrust Analysis 381 (2d ed. 1974)). The question in this litigation is whether the alleged activities of the domestic defendants, acting together with the foreign defendants who are not petitioners here, include "enforcement activities" that would raise the claimed attempts to fix terms to the level of ง 3(b) boycotts. I believe they do. The core of the plaintiffs' allegations against the domestic defendants concern those activities that form the basis of the First, Second, Third, and Fourth Claims for Relief in the California Complaint, and the Second Claim for Relief in the Connecticut Complaint: the conspiracies involving both the primary insurers and domestic and foreign brokers and reinsurers to force changes in the ISO CGL forms. According to the complaints, primary insurer defendants Hartford and Allstate first tried to convince other members of the ISO that the ISO CGL forms should be changed to limit coverage in the manner we have detailed above, see supra, at 773-774; but they failed to persuade a majority of members of the relevant ISO committees, and the changes were not made. Unable to persuade other primary insurers to agree voluntarily to their terms, Hartford and Allstate, joined by Aetna and CIGNA, sought the aid of other individuals and entities who were not members of ISO, and who would not ordinarily be parties to an agreement setting the terms of primary insurance, not being in the business of selling it. The four primary insurers convinced these individuals and entities, the reinsurers, to put pressure on ISO and its members by refusing to reinsure coverages written on the ISO CGL forms until the desired changes were made. Both domestic and foreign reinsurers, acting at the behest of the four primary *789 insurers, announced that they would not reinsure under the ISO CGL forms until changes were made. As an immediate result of this pressure, ISO decided to include a retroactive-date provision in its claims-made form, and to exclude all pollution coverage from both its claims-made and occurrence forms. In sum, the four primary insurers solicited refusals to deal from outside the primary insurance industry as a means of forcing their fellow primary insurers to agree to their terms; the outsiders, acting at the behest of the four, in fact refused to deal with primary insurers until they capitulated, which, in part at least, they did. This pattern of activity bears a striking resemblance to the first act of boycott listed by the South-Eastern Underwriters Court; although neither the South-Eastern Underwriters opinion, nor the underlying indictment, see Transcript of Record, O. T. 1943, No. 354, p. 11 (ถ 22(e)), details exactly how the defendants managed to "cut off [nonmembers] from the opportunity to reinsure their risks," 322 U. S., at 535, the defendants could have done so by prompting reinsurance companies to refuse to deal with nonmembers, just as is alleged here.[16] Moreover, the activity falls squarely *790 within even the narrow theory of the ง 3(b) exception Justice Stewart advanced in dissent in Barry. Under that theory,[17] the ง 3(b) exception should be limited to "attempts by members of the insurance business to force other members to follow the industry's private rules and practices." 438 U. S., at 565. I can think of no better description of the four primary insurers' activities in this litigation. For these reasons, I agree with the Court's ultimate conclusion that the Court of Appeals was correct in reversing the District Court's dismissal of the First, Second, Third, and Fourth Claims for Relief in the California Complaint, and the Second Claim for Relief in the Connecticut Complaint.[18] *791 The majority concludes that, so long as the reinsurers' role in this course of action was limited to "a concerted agreement to seek particular terms in particular transactions," post, at 801-802, the course of action could never constitute a ง 3(b) boycott. The majority's emphasis on this conclusion assumes an artificial segmentation of the course of action, and a false perception of the unimportance of the elements of that course of action other than the reinsurers' agreement. The majority concedes that the complaints allege, not just implementation of a horizontal agreement, but refusals to deal that occurred "at the behest of," or were "solicited by," the four primary insurers, who were "competitors of the target[s]." *792 Post, at 808 (citations and internal quotation marks omitted). But it fails to acknowledge several crucial features of these events that bind them into a single course of action recognizable as a ง 3(b) boycott. First, the allegation that the reinsurers acted at the behest of the four primary insurers excludes the possibility that the reinsurers acted entirely in their own independent selfinterest, and would have taken exactly the same course of action without the intense efforts of the four primary insurers. Although the majority never explicitly posits such autonomy on the part of the reinsurers, this would seem to be the only point of its repeated emphasis on the fact that "the scope and predictability of the risks assumed in a reinsurance contract depend entirely upon the terms of the primary policies that are reinsured." Ibid. If the encouragement of the four primary insurers played no role in the reinsurers' decision to act as they did, then it is difficult to see how one could describe the reinsurers as acting at the behest of the primary insurers, an element I find crucial to the ง 3(b) boycott alleged here. From the vantage point of a ruling on motions to dismiss, however, I discern sufficient allegations in the complaints that this is not the case. In addition, according to the complaints, the four primary insurers were not acting out of concern for the reinsurers' financial health when they prompted the reinsurers to refuse reinsurance for certain risks; rather, they simply wanted to ensure that no other primary insurer would be able to sell insurance policies that they did not want to sell. Finally, as the complaints portray the business of insurance, reinsurance is a separate, specialized product, "[t]he availability [of which] affects the ability and willingness of primary insurers to provide insurance to their customers." App. 18 (Cal. Complaint ถ 34). Thus, contrary to the majority's assertion, the boundary between the primary insurance industry and the reinsurance industry is not merely "technica[l]." Post, at 808. *793 The majority insists that I "disregar[d] th[e] integral relationship between the terms of the primary insurance form and the contract of reinsurance," post, at 807, a fact which it seems to believe makes it impossible to draw any distinction whatsoever between primary insurers and reinsurers. Yet it is the majority that fails to see that, in spite of such an "integral relationship," the interests of primary insurer and reinsurer will almost certainly differ in some cases. For example, the complaints allege that reinsurance contracts often "layer" risks, "in the sense that [a] reinsurer may have to respond only to claims above a certain amount . . . ." App. 10 (Cal. Complaint ถ 4.q); id., at 61 (Conn. Complaint ถ 4(f)). Thus, a primary insurer might be much more concerned than its reinsurer about a risk that resulted in a high number of relatively small claims. Or the primary insurer might simply perceive a particular risk differently from the reinsurer. The reinsurer might be indifferent as to whether a particular risk was covered, so long as the reinsurance premiums were adjusted to its satisfaction, whereas the primary insurer might decide that the risk was "too hot to handle," on a standardized basis, at any cost. The majority's suggestion that "to insist upon certain primary-insurance terms as a condition of writing reinsurance is in no way `artificial,' " post, at 808; see post, at 806, simply ignores these possibilities; the conditions could quite easily be "artificial," in the sense that they are not motivated by the interests of the reinsurers themselves. Because the parties have had no chance to flesh out the facts of this case, because I have no a priori knowledge of those facts, and because I do not believe I can locate them in the pages of insurance treatises, I would not rule out these possibilities on a motion to dismiss. Believing that there is no other principled way to narrow the ง 3(b) exception, the majority decides that "boycott" encompasses just those refusals to deal that are "unrelated" or "collateral" to the objective sought by those refusing to deal. Post, at 803. This designation of a single "`unitary phenomenon,'" *794 Barry, 438 U. S., at 543, to which the term "boycott" will henceforth be confined, is of course at odds with our own description of our Sherman Act cases in Barry.[19] See ibid. Moreover, the limitation to "collateral" refusals to deal threatens to shrink the ง 3(b) exception far more than the majority is willing to admit. Even if the reinsurers refused all reinsurance to primary insurers "who wrote insurance on disfavored forms," including insurance "as to risks written on other forms," the majority states, the reinsurers would not be engaging in a ง 3(b) boycott if "the primary insurers' other business were relevant to the proposed insurance contract (for example, if the reinsurer bears greater risk where the primary insurer engages in riskier businesses)." Post, at 810 (emphasis deleted). Under this standard, and under facts comparable to those in this litigation, I assume that reinsurers who refuse to deal at all with a primary insurer unless it ceases insuring a particular risk would not be engaging in a ง 3(b) boycott if they could show that (1) insuring the risk in question increases the probability that the primary insurer will become insolvent, and that (2) it costs more to administer the reinsurance contracts of a bankrupt primary insurer (including those unrelated to the risk that caused the primary insurer to declare bankruptcy). One can only imagine the variety of similar arguments that may slowly plug what remains of the ง 3(b) exception. For these reasons, I cannot agree with the majority's narrow theory of ง 3(b) boycotts. III Finally, we take up the question presented by No. 91-1128, whether certain claims against the London reinsurers should have been dismissed as improper applications of the Sherman *795 Act to foreign conduct. The Fifth Claim for Relief in the California Complaint alleges a violation of ง 1 of the Sherman Act by certain London reinsurers who conspired to coerce primary insurers in the United States to offer CGL coverage on a claims-made basis, thereby making "occurrence CGL coverage . . . unavailable in the State of California for many risks." App. 43-44 (ถถ 131-135). The Sixth Claim for Relief in the California Complaint alleges that the London reinsurers violated ง 1 by a conspiracy to limit coverage of pollution risks in North America, thereby rendering "pollution liability coverage . . . almost entirely unavailable for the vast majority of casualty insurance purchasers in the State of California." Id., at 45-46 (ถถ 136-140). The Eighth Claim for Relief in the California Complaint alleges a further ง 1 violation by the London reinsurers who, along with domestic retrocessional reinsurers, conspired to limit coverage of seepage, pollution, and property contamination risks in North America, thereby eliminating such coverage in the State of California.[20]Id., at 47-48 (ถถ 146-150). At the outset, we note that the District Court undoubtedly had jurisdiction of these Sherman Act claims, as the London reinsurers apparently concede. See Tr. of Oral Arg. 37 ("Our position is not that the Sherman Act does not apply in the sense that a minimal basis for the exercise of jurisdiction doesn't exist here. Our position is that there are certain circumstances, and that this is one of them, in which the interests of another State are sufficient that the exercise of that jurisdiction should be restrained").[21] Although the *796 proposition was perhaps not always free from doubt, see American Banana Co. v. United Fruit Co., 213 U. S. 347 (1909), it is well established by now that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States. See Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 582, n. 6 (1986); United States v. Aluminum Co. of America, 148 F. 2d 416, 444 (CA2 1945) (L. Hand, J.); Restatement (Third) of Foreign Relations Law of the United States ง 415, and Reporters' Note 3 (1987) (hereinafter Restatement (Third) Foreign Relations Law); 1 P. Areeda & D. Turner, Antitrust Law ถ 236 (1978); cf. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 704 (1962); Steele v. Bulova Watch Co., 344 U. S. 280, 288 (1952); United States v. Sisal Sales Corp., 274 U. S. 268, 275-276 (1927).[22] Such is the conduct alleged here: that the London reinsurers engaged in unlawful conspiracies to affect the market for insurance in the United States and that their conduct in fact produced substantial effect.[23] See 938 F. 2d, at 933. *797 According to the London reinsurers, the District Court should have declined to exercise such jurisdiction under the principle of international comity.[24] The Court of Appeals agreed that courts should look to that principle in deciding whether to exercise jurisdiction under the Sherman Act. Id., at 932. This availed the London reinsurers nothing, however. To be sure, the Court of Appeals believed that "application of [American] antitrust laws to the London reinsurance market `would lead to significant conflict with English law and policy,' " and that "[s]uch a conflict, unless outweighed by other factors, would by itself be reason to decline *798 exercise of jurisdiction." Id., at 933 (citation omitted). But other factors, in the court's view, including the London reinsurers' express purpose to affect United States commerce and the substantial nature of the effect produced, outweighed the supposed conflict and required the exercise of jurisdiction in this litigation. Id., at 934. When it enacted the FTAIA, Congress expressed no view on the question whether a court with Sherman Act jurisdiction should ever decline to exercise such jurisdiction on grounds of international comity. See H. R. Rep. No. 97-686, p. 13 (1982) ("If a court determines that the requirements for subject matter jurisdiction are met, [the FTAIA] would have no effect on the court[`s] ability to employ notions of comity. . . or otherwise to take account of the international character of the transaction") (citing Timberlane ). We need not decide that question here, however, for even assuming that in a proper case a court may decline to exercise Sherman Act jurisdiction over foreign conduct (or, as Justice Scalia would put it, may conclude by the employment of comity analysis in the first instance that there is no jurisdiction), international comity would not counsel against exercising jurisdiction in the circumstances alleged here. The only substantial question in this litigation is whether "there is in fact a true conflict between domestic and foreign law." Soci้t้ Nationale Industrielle A้rospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, 555 (1987) (Blackmun, J., concurring in part and dissenting in part). The London reinsurers contend that applying the Act to their conduct would conflict significantly with British law, and the British Government, appearing before us as amicus curiae, concurs. See Brief for Petitioners Merrett Underwriting Agency Management Ltd. et al. in No. 91-1128, pp. 22-27; Brief for Government of United Kingdom of Great Britain and Northern Ireland as Amicus Curiae 10-14. They assert that Parliament has established a comprehensive *799 regulatory regime over the London reinsurance market and that the conduct alleged here was perfectly consistent with British law and policy. But this is not to state a conflict. "[T]he fact that conduct is lawful in the state in which it took place will not, of itself, bar application of the United States antitrust laws," even where the foreign state has a strong policy to permit or encourage such conduct. Restatement (Third) Foreign Relations Law ง 415, Comment j; see Continental Ore Co., supra, at 706-707. No conflict exists, for these purposes, "where a person subject to regulation by two states can comply with the laws of both." Restatement (Third) Foreign Relations Law ง 403, Comment e.[25] Since the London reinsurers do not argue that British law requires them to act in some fashion prohibited by the law of the United States, see Reply Brief for Petitioners Merrett Underwriting Agency Management Ltd. et al. in No. 91-1128, pp. 7-8, or claim that their compliance with the laws of both countries is otherwise impossible, we see no conflict with British law. See Restatement (Third) Foreign Relations Law ง 403, Comment e, ง 415, Comment j. We have no need in this litigation to address other considerations that might inform a decision to refrain from the exercise of jurisdiction on grounds of international comity. IV The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. *800 Justice Scalia delivered the opinion of the Court with respect to Part I, and delivered a dissenting opinion with respect to Part II.[*] With respect to the petition in No. 91-1111, I join the Court's judgment and Parts I and IIโ€”A of its opinion. I write separately because I do not agree with Justice Souter's analysis, set forth in Part IIโ€”B of his opinion, of what constitutes a "boycott" for purposes of ง 3(b) of the McCarran-Ferguson Act, 15 U. S. C. ง 1013(b). With respect to the petition in No. 91-1128, I dissent from the Court's ruling concerning the extraterritorial application of the Sherman Act. Part I below discusses the boycott issue; Part II extraterritoriality. I Determining proper application of ง 3(b) of the McCarranFerguson Act to the present cases requires precise definition of the word "boycott."[1] It is a relatively new word, little more than a century old. It was first used in 1880, to describe the collective action taken against Captain Charles Boycott, an English agent managing various estates in Ireland. The Land League, an Irish organization formed the previous year, had demanded that landlords reduce their rents and had urged tenants to avoid dealing with those who failed to do so. Boycott did not bend to the demand and instead ordered evictions. In retaliation, the tenants "sen[t] Captain Boycott to Coventry in a very thorough manner." J. McCarthy, England Under Gladstone 108 (1886). "The population of the region for miles round resolved not to have anything to do with him, and, as far as they could prevent *801 it, not to allow any one else to have anything to do with him. . . . [T]he awful sentence of excommunication could hardly have rendered him more helplessly alone for a time. No one would work for him; no one would supply him with food." Id., at 108-109; see also H. Laidler, Boycotts and the Labor Struggle 23-27 (1968). Thus, the verb made from the unfortunate Captain's name has had from the outset the meaning it continues to carry today. To "boycott" means "[t]o combine in refusing to hold relations of any kind, social or commercial, public or private, with (a neighbour), on account of political or other differences, so as to punish him for the position he has taken up, or coerce him into abandoning it." 2 Oxford English Dictionary 468 (2d ed. 1989). Petitioners have suggested that a boycott ordinarily requires "an absolute refusal to deal on any terms," which was concededly not the case here. Brief for Petitioners in No. 91-1111, p. 31; see also Reply Brief for Petitioners in No. 91-1111, pp. 12-13. We think not. As the definition just recited provides, the refusal may be imposed "to punish [the target] for the position he has taken up, or coerce him into abandoning it. " The refusal to deal may, in other words, be conditional, offering its target the incentive of renewed dealing if and when he mends his ways. This is often the caseโ€”and indeed seems to have been the case with the original Boycott boycott. Cf. McCarthy, supra, at 109 (noting that the Captain later lived "at peace" with his neighbors). Furthermore, other dictionary definitions extend the term to include a partial boycottโ€”a refusal to engage in some, but not all, transactions with the target. See Webster's New International Dictionary 321 (2d ed. 1950) (defining "boycott" as "to withhold, wholly or in part, social or business intercourse from, as an expression of disapproval or means of coercion" (emphasis added)). It is, however, importantโ€”and crucial in the present casesโ€”to distinguish between a conditional boycott and a concerted agreement to seek particular terms in particular *802 transactions. A concerted agreement to terms (a "cartelization") is "a way of obtaining and exercising market power by concertedly exacting terms like those which a monopolist might exact." L. Sullivan, Law of Antitrust 257 (1977). The parties to such an agreement (the members of a cartel) are not engaging in a boycott, because: "They are not coercing anyone, at least in the usual sense of that word; they are merely (though concertedly) saying `we will deal with you only on the following trade terms. ` ". . . Indeed, if a concerted agreement, say, to include a security deposit in all contracts is a `boycott' because it excludes all buyers who won't agree to it, then by parity of reasoning every price fixing agreement would be a boycott also. The use of the single concept, boycott, to cover agreements so varied in nature can only add to confusion." Ibid. (emphasis added). Thus, if Captain Boycott's tenants had agreed among themselves that they would refuse to renew their leases unless he reduced his rents, that would have been a concerted agreement on the terms of the leases, but not a boycott.[2] The tenants, of course, did more than that; they refused to engage in other, unrelated transactions with Boycottโ€”e. g., selling him foodโ€”unless he agreed to their terms on rents. It is *803 this expansion of the refusal to deal beyond the targeted transaction that gives great coercive force to a commercial boycott: unrelated transactions are used as leverage to achieve the terms desired. The proper definition of "boycott" is evident from the Court's opinion in Eastern States Retail Lumber Dealers' Assn. v. United States, 234 U. S. 600 (1914), which is recognized in the antitrust field as one of the "leading case[s] involving commercial boycotts." Barber, Refusals to Deal under the Federal Antitrust Laws, 103 U. Pa. L. Rev. 847, 873 (1955). The associations of retail lumber dealers in that case refused to buy lumber from wholesale lumber dealers who sold directly to consumers. The boycott attempted "to impose as a condition . . . on [the wholesale dealers'] trade that they shall not sell in such manner that a local retailer may regard such sale as an infringement of his exclusive right to trade." 234 U. S., at 611. We held that to be an "`artificial conditio[n],' " since "the trade of the wholesaler with strangers was directly affected, not because of any supposed wrong which he had done to them, but because of the grievance of a member of one of the associations." Id., at 611-612. In other words, the associations' activities were a boycott because they sought an objectiveโ€”the wholesale dealers' forbearance from retail tradeโ€”that was collateral to their transactions with the wholesalers. Of course as far as the Sherman Act (outside the exempted insurance field) is concerned, concerted agreements on contract terms are as unlawful as boycotts. For example, in Paramount Famous Lasky Corp. v. United States, 282 U. S. 30 (1930), and United States v. First Nat. Pictures, Inc., 282 U. S. 44 (1930), we held unreasonable an agreement among competing motion picture distributors under which they refused to license films to exhibitors except on standardized terms. We also found unreasonable the restraint of trade in Anderson v. Shipowners Assn. of Pacific Coast, 272 U. S. 359 (1926), which involved an attempt by an association of *804 employers to establish industry-wide terms of employment. These sorts of concerted actions, similar to what is alleged to have occurred here, are not properly characterized as "boycotts," and the word does not appear in the opinions.[3] In fact, in the 65 years between the coining of the word and enactment of the McCarran-Ferguson Act in 1945, "boycott" appears in only seven opinions of this Court involving commercial (nonlabor) antitrust matters, and not once is it used as Justice Souter uses itโ€”to describe a concerted refusal to engage in particular transactions until the terms of those transactions are agreeable.[4] In addition to its use in the antitrust field, the concept of "boycott" frequently appears in labor law, and in this context as well there is a clear distinction between boycotts and concerted agreements seeking terms. The ordinary strike *805 seeking better contract terms is a "refusal to deal"โ€”i. e., union members refuse to sell their labor until the employer capitulates to their contract demands. But no one would call this a boycott, because the conditions of the "refusal to deal" relate directly to the terms of the refused transaction (the employment contract). A refusal to work changes from strike to boycott only when it seeks to obtain action from the employer unrelated to the employment contract. This distinction is well illustrated by the famous boycott of Pullman cars by Eugene Debs' American Railway Union in 1894. The incident began when workers at the Pullman Palace Car Company called a strike, but the "boycott" occurred only when other members of the American Railway Union, not Pullman employees, supported the strikers by refusing to work on any train drawing a Pullman car. See In re Debs, 158 U. S. 564, 566-567 (1895) (statement of the case); H. Laidler, Boycotts and the Labor Struggle 100-108 (1968). The refusal to handle Pullman cars had nothing to do with Pullman cars themselves (working on Pullman cars was no more difficult or dangerous than working on other cars); rather, it was in furtherance of the collateral objective of obtaining better employment terms for the Pullman workers. In other labor cases as well, the term "boycott" invariably holds the meaning that we ascribe to it: Its goal is to alter, not the terms of the refused transaction, but the terms of workers' employment.[5] *806 The one case in which we have found an activity to constitute a "boycott" within the meaning of the McCarranFerguson Act is St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531 (1978). There the plaintiffs were licensed physicians and their patients, and the defendant (St. Paul) was a malpractice insurer that had refused to renew the physicians' policies on an "occurrence" basis, but insisted upon a "claims made" basis. The allegation was that, at the instance of St. Paul, the three other malpractice insurers in the State had collectively refused to write insurance for St. Paul's customers, thus forcing them to accept St. Paul's renewal terms. Unsurprisingly, we held the allegation sufficient to state a cause of action. The insisted-upon condition of the boycott (not being a former St. Paul policyholder) was "artificial": it bore no relationship (or an "artificial" relationship) to the proposed contracts of insurance that the physicians wished to conclude with St. Paul's competitors. Under the standard described, it is obviously not a "boycott" for the reinsurers to "refus[e] to reinsure coverages written on the ISO CGL forms until the desired changes were made," ante, at 788, because the terms of the primary coverages are central elements of the reinsurance contractโ€” they are what is reinsured. See App. 16-17 (Cal. Complaint ถถ 26-27). The "primary policies are . . . the basis of the losses that are shared in the reinsurance agreements." 1 B. Webb, H. Anderson, J. Cookman, & P. Kensicki, Principles of Reinsurance 87 (1990); see also id., at 55; Gurley, Regulation of Reinsurance in the United States, 19 Forum 72, 73 (1983). Indeed, reinsurance is so closely tied to the terms of the primary insurance contract that one of the two categories of reinsurance (assumption reinsurance) substitutes the reinsurer for the primary or "ceding" insurer and places the reinsurer into contractual privity with the primary insurer's policyholders. See id., at 73-74; Colonial American Life Ins. Co. v. Commissioner, 491 U. S. 244, 247 (1989); B. Ostrager & T. Newman, Handbook on Insurance Coverage *807 Disputes chs. 15-16 (5th ed. 1992). And in the other category of reinsurance (indemnity reinsurance), either the terms of the underlying insurance policy are incorporated by reference (if the reinsurance is written under a facultative agreement), see J. Butler & R. Merkin, Reinsurance Law B.1.1-04 (1992); R. Carter, Reinsurance 235 (1979), or (if the reinsurance is conducted on a treaty basis) the reinsurer will require full disclosure of the terms of the underlying insurance policies and usually require that the primary insurer not vary those terms without prior approval, see id., at 256, 297. Justice Souter simply disregards this integral relationship between the terms of the primary insurance form and the contract of reinsurance. He describes the reinsurers as "individuals and entities who were not members of ISO, and who would not ordinarily be parties to an agreement setting the terms of primary insurance, not being in the business of selling it." Ante, at 788. While this factual assumption is crucial to Justice Souter's reasoning (because otherwise he would not be able to distinguish permissible agreements among primary insurers), he offers no support for the statement. But even if it happens to be true, he does not explain why it must be trueโ€”that is, why the law must exclude reinsurers from full membership and participation. The realities of the industry may make explanation difficult: "Reinsurers also benefit from the services by ISO and other rating or service organizations. The underlying rates and policy forms are the basis for many reinsurance contracts. Reinsurers may also subscribe to various services. For example, a facultative reinsurer may subscribe to the rating service, so that they have the rating manuals available, or purchase optional services, such as a sprinkler report for a specific property location." 2 R. Reinarz, J. Schloss, G. Patrik, & P. Kensicki, Reinsurance Practices 18 (1990). *808 Justice Souter also describes reinsurers as being "outside the primary insurance industry." Ante, at 789. That is technically true (to the extent the two symbiotic industries can be separated) but quite irrelevant. What matters is that the scope and predictability of the risks assumed in a reinsurance contract depend entirely upon the terms of the primary policies that are reinsured. The terms of the primary policies are the "subject-matter insured" by reinsurance, Carter, supra, at 4, so that to insist upon certain primary-insurance terms as a condition of writing reinsurance is in no way "artificial"; and hence for a number of reinsurers to insist upon such terms jointly is in no way a "boycott."[6] Justice Souter seems to believe that a nonboycott is converted into a boycott by the fact that it occurs "at the behest of," ante, at 789, or is "solicited" by, ibid., competitors of the target. He purports to find support for this implausible proposition in United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944), which involved a classic boycott, by primary insurers, of competitors who refused to join their price-fixing conspiracy, the South-Eastern Underwriters Association (S. E. U. A.). The conspirators would not deal with independent agents who wrote for such companies, and would not write policies for customers who insured with them. See id., at 535-536. Moreover, Justice Black's opinion for the Court noted cryptically, "[c]ompanies not members of S. E. U. A. were cut off from the opportunity to reinsure their risks." Id., at 535. Justice Souter speculates *809 that "the [S. E. U. A.] defendants could have [managed to cut the targets off from reinsurance] by prompting reinsurance companies to refuse to deal with nonmembers." Ante, at 789. Even assuming that is what happened, all that can be derived from S. E. U. A. is the proposition that one who prompts a boycott is a co-conspirator with the boycotters. For with or without the defendants' prompting, the reinsurers' refusal to deal in S. E. U. A. was a boycott, membership in the association having no discernible bearing upon the terms of the refused reinsurance contracts. Justice Souter suggests that we have somehow mistakenly "posit[ed] . . . autonomy on the part of the reinsurers." Ante, at 792. We do not understand this. Nothing in the complaints alleges that the reinsurers were deprived of their "autonomy," which we take to mean that they were coerced by the primary insurers. (Given the sheer size of the Lloyd's market, such an allegation would be laughable.) That is not to say that we disagree with Justice Souter's contention that, according to the allegations, the reinsurers would not "have taken exactly the same course of action without the intense efforts of the four primary insurers." Ibid. But the same could be said of the participants in virtually all conspiracies: If they had not been enlisted by the "intense efforts" of the leaders, their actions would not have been the same. If this factor renders otherwise lawful conspiracies (under McCarran-Ferguson) illegal, then the Act would have a narrow scope indeed. Perhaps Justice Souter feels that it is undesirable, as a policy matter, to allow insurers to "prompt" reinsurers not to deal with the insurers' competitorsโ€”whether or not that refusal to deal is a boycott. That feeling is certainly understandable, since under the normal application of the Sherman Act the reinsurers' concerted refusal to deal would be an unlawful conspiracy, and the insurers' "prompting" could make them part of that conspiracy. The McCarran- *810 Ferguson Act, however, makes that conspiracy lawful (assuming reinsurance is state regulated), unless the refusal to deal is a "boycott." Under the test set forth above, there are sufficient allegations of a "boycott" to sustain the relevant counts of complaint against a motion to dismiss. For example, the complaints allege that some of the defendant reinsurers threatened to "withdra[w] entirely from the business of reinsuring primary U. S. insurers who wrote on the occurrence form." App. 31 (Cal. Complaint ถ 89), id., at 83 (Conn. Complaint ถ 93). Construed most favorably to respondents, that allegation claims that primary insurers who wrote insurance on disfavored forms would be refused all reinsurance, even as to risks written on other forms. If that were the case, the reinsurers might have been engaging in a boycottโ€”they would, that is, unless the primary insurers' other business were relevant to the proposed reinsurance contract (for example, if the reinsurer bears greater risk where the primary insurer engages in riskier businesses). Cf. Gonye, Underwriting the Reinsured, in Reinsurance 439, 463-466 (R. Strain ed. 1980); 2 R. Reinarz, J. Schloss, G. Patrik, & P. Kensicki, Reinsurance Practices 21-23 (1990) (same). Other allegations in the complaints could be similarly construed. For example, the complaints also allege that the reinsurers "threatened a boycott of North American CGL risks," not just CGL risks containing dissatisfactory terms, App. 26 (Cal. Complaint ถ 74), id., at 79 (Conn. Complaint ถ 78); that "the foreign and domestic reinsurer representatives presented their agreed upon positions that there would be changes in the CGL forms or no reinsurance," id., at 29 (Cal. Complaint ถ 82), id., at 81-82 (Conn. Complaint ถ 86); that some of the defendant insurers and reinsurers told "groups of insurance brokers and agents . . . that a reinsurance boycott, and thus loss of income to the agents and brokers who would be unable to find available markets for their customers, would ensue if the [revised] ISO forms were not approved," *811 id., at 29 (Cal. Complaint ถ 85), id., at 82 (Conn. Complaint ถ 89). Many other allegations in the complaints describe conduct that may amount to a boycott if the plaintiffs can prove certain additional facts. For example, General Re, the largest American reinsurer, is alleged to have "agreed to either coerce ISO to adopt [the defendants'] demands or, failing that, `derail' the entire CGL forms program." Id., at 24 (Cal. Complaint ถ 64), id., at 77 (Conn. Complaint ถ 68). If this means that General Re intended to withhold all reinsurance on all CGL formsโ€”even forms having no objectionable termsโ€”that might amount to a "boycott." Also, General Re and several other domestic reinsurers are alleged to have "agreed to boycott the 1984 ISO forms unless a retroactive date was added to the claims-made form, and a pollution exclusion and a defense cost cap were added to both [the occurrence and claims made] forms." Id., at 25 (Cal. Complaint ถ 66), id., at 78 (Conn. Complaint ถ 70). Liberally construed, this allegation may mean that the defendants had linked their demands so that they would continue to refuse to do business on either form until both were changed to their liking. Again, that might amount to a boycott. "[A] complaint should not be dismissed unless `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S. 232, 246 (1980) (quoting Conley v. Gibson, 355 U. S. 41, 45-46 (1957)). Under that standard, these allegations are sufficient to sustain the First, Second, Third, and Fourth Claims for Relief in the California Complaint and the First and Second Claims for Relief in the Connecticut Complaint.[7] *812 II Petitioners in No. 91-1128, various British corporations and other British subjects, argue that certain of the claims against them constitute an inappropriate extraterritorial application of the Sherman Act.[8] It is important to distinguish two distinct questions raised by this petition: whether the District Court had jurisdiction, and whether the Sherman Act reaches the extraterritorial conduct alleged here. On the first question, I believe that the District Court had subject-matter jurisdiction over the Sherman Act claims against all the defendants (personal jurisdiction is not contested). Respondents asserted nonfrivolous claims under the Sherman Act, and 28 U. S. C. ง 1331 vests district courts with subject-matter jurisdiction over cases "arising under" federal statutes. As precedents such as Lauritzen v. Larsen, 345 U. S. 571 (1953), make clear, that is sufficient to establish the District Court's jurisdiction over these claims. Lauritzen involved a Jones Act claim brought by a foreign sailor against a foreign shipowner. The shipowner contested the District Court's jurisdiction, see id., at 573, apparently on the grounds that the Jones Act did not govern the dispute between the foreign parties to the action. Though ultimately agreeing with the shipowner that the Jones Act did not apply, see discussion infra, at 816, the Court held that the District Court had jurisdiction. "As frequently happens, a contention that there is some barrier to granting plaintiff's claim is cast in terms of an exception to jurisdiction of subject matter. A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact." 345 U. S., at 575. *813 See also Romero v. International Terminal Operating Co., 358 U. S. 354, 359 (1959). The second questionโ€”the extraterritorial reach of the Sherman Actโ€”has nothing to do with the jurisdiction of the courts. It is a question of substantive law turning on whether, in enacting the Sherman Act, Congress asserted regulatory power over the challenged conduct. See EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (Aramco) ("It is our task to determine whether Congress intended the protections of Title VII to apply to United States citizens employed by American employers outside of the United States"). If a plaintiff fails to prevail on this issue, the court does not dismiss the claim for want of subject-matter jurisdictionโ€”want of power to adjudicate; rather, it decides the claim, ruling on the merits that the plaintiff has failed to state a cause of action under the relevant statute. See Romero, supra, at 384 (holding no claim available under the Jones Act); American Banana Co. v. United Fruit Co., 213 U. S. 347, 359 (1909) (holding that complaint based upon foreign conduct "alleges no case under the [Sherman Act]"). There is, however, a type of "jurisdiction" relevant to determining the extraterritorial reach of a statute; it is known as "legislative jurisdiction," Aramco, supra, at 253; Restatement (First) Conflict of Laws ง 60 (1934), or "jurisdiction to prescribe," 1 Restatement (Third) of Foreign Relations Law of the United States 235 (1987) (hereinafter Restatement (Third)). This refers to "the authority of a state to make its law applicable to persons or activities," and is quite a separate matter from "jurisdiction to adjudicate," see id., at 231. There is no doubt, of course, that Congress possesses legislative jurisdiction over the acts alleged in this complaint: Congress has broad power under Article I, ง 8, cl. 3, "[t]o regulate Commerce with foreign Nations," and this Court has repeatedly upheld its power to make laws applicable to persons or activities beyond our territorial boundaries where United *814 States interests are affected. See Ford v. United States, 273 U. S. 593, 621-623 (1927); United States v. Bowman, 260 U. S. 94, 98-99 (1922); American Banana, supra, at 356. But the question in this litigation is whether, and to what extent, Congress has exercised that undoubted legislative jurisdiction in enacting the Sherman Act. Two canons of statutory construction are relevant in this inquiry. The first is the "longstanding principle of American law `that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.' " Aramco, supra, at 248 (quoting Foley Bros., Inc. v.Filardo, 336 U. S. 281, 285 (1949)). Applying that canon in Aramco, we held that the version of Title VII of the Civil Rights Act of 1964 then in force, 42 U. S. C. งง 2000e to 2000eโ€”17 (1988 ed.), did not extend outside the territory of the United States even though the statute contained broad provisions extending its prohibitions to, for example, "`any activity, business, or industry in commerce.' " Id., at 249 (quoting 42 U. S. C. ง 2000e(h)). We held such "boilerplate language" to be an insufficient indication to override the presumption against extraterritoriality. Id., at 251; see also id., at 251-253. The Sherman Act contains similar "boilerplate language," and if the question were not governed by precedent, it would be worth considering whether that presumption controls the outcome here. We have, however, found the presumption to be overcome with respect to our antitrust laws; it is now well established that the Sherman Act applies extraterritorially. See Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 582, n. 6 (1986); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 704 (1962); see also United States v. Aluminum Co. of America, 148 F. 2d 416 (CA2 1945). But if the presumption against extraterritoriality has been overcome or is otherwise inapplicable, a second canon of statutory construction becomes relevant: "[A]n act of congress *815 ought never to be construed to violate the law of nations if any other possible construction remains." Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804) (Marshall, C. J.). This canon is "wholly independent" of the presumption against extraterritoriality. Aramco, supra, at 264 (Marshall, J., dissenting). It is relevant to determining the substantive reach of a statute because "the law of nations," or customary international law, includes limitations on a nation's exercise of its jurisdiction to prescribe. See Restatement (Third) งง 401-416. Though it clearly has constitutional authority to do so, Congress is generally presumed not to have exceeded those customary international-law limits on jurisdiction to prescribe. Consistent with that presumption, this and other courts have frequently recognized that, even where the presumption against extraterritoriality does not apply, statutes should not be interpreted to regulate foreign persons or conduct if that regulation would conflict with principles of international law. For example, in Romero v. International Terminal Operating Co., 358 U. S. 354 (1959), the plaintiff, a Spanish sailor who had been injured while working aboard a Spanish-flag and Spanish-owned vessel, filed a Jones Act claim against his Spanish employer. The presumption against extraterritorial application of federal statutes was inapplicable to the case, as the actionable tort had occurred in American waters. See id., at 383. The Court nonetheless stated that, "in the absence of a contrary congressional direction," it would apply "principles of choice of law that are consonant with the needs of a general federal maritime law and with due recognition of our self-regarding respect for the relevant interests of foreign nations in the regulation of maritime commerce as part of the legitimate concern of the international community." Id., at 382-383. "The controlling considerations" in this choice-of-law analysis were "the interacting interests of the United States and of foreign countries." Id., at 383. *816 Romero referred to, and followed, the choice-of-law analysis set forth in Lauritzen v. Larsen, 345 U. S. 571 (1953). As previously mentioned, Lauritzen also involved a Jones Act claim brought by a foreign sailor against a foreign employer. The Lauritzen Court recognized the basic problem: "If [the Jones Act were] read literally, Congress has conferred an American right of action which requires nothing more than that plaintiff be `any seaman who shall suffer personal injury in the course of his employment.' " Id., at 576. The solution it adopted was to construe the statute "to apply only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law. " Id., at 577 (emphasis added). To support application of international law to limit the facial breadth of the statute, the Court relied uponโ€”of courseโ€”Chief Justice Marshall's statement in Schooner Charming Betsy, quoted supra, at 814-815. It then set forth "several factors which, alone or in combination, are generally conceded to influence choice of law to govern a tort claim." 345 U. S., at 583; see id., at 583-593 (discussing factors). See also McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 21-22 (1963) (applying Schooner Charming Betsy principle to restrict application of National Labor Relations Act to foreign-flag vessels). Lauritzen, Romero, and McCulloch were maritime cases, but we have recognized the principle that the scope of generally worded statutes must be construed in light of international law in other areas as well. See, e. g., Sale v. Haitian Centers Council, Inc., ante, at 178, n. 35; Weinberger v. Rossi, 456 U. S. 25, 32 (1982). More specifically, the principle was expressed in United States v. Aluminum Co. of America, 148 F. 2d 416 (CA2 1945), the decision that established the extraterritorial reach of the Sherman Act. In his opinion for the court, Judge Learned Hand cautioned "we are not to read general words, such as those in [the Sherman] *817 Act, without regard to the limitations customarily observed by nations upon the exercise of their powers; limitations which generally correspond to those fixed by the `Conflict of Laws.' " Id., at 443. More recent lower court precedent has also tempered the extraterritorial application of the Sherman Act with considerations of "international comity." See Timberlane Lumber Co. v. Bank of America, N. T. & S. A., 549 F. 2d 597, 608-615 (CA9 1976); Mannington Mills, Inc. v. Congoleum Corp., 595 F. 2d 1287, 1294-1298 (CA3 1979); Montreal Trading Ltd. v. Amax Inc., 661 F. 2d 864, 869-871 (CA10 1981); Laker Airways Limited v. Sabena, Belgian World Airlines, 235 U. S. App. D. C. 207, 236, and n. 109, 731 F. 2d 909, 938, and n. 109 (1984); see also Pacific Seafarers, Inc. v. Pacific Far East Line, Inc., 131 U. S. App. D. C. 226, 236, and n. 31, 404 F. 2d 804, 814, and n. 31 (1968). The "comity" they refer to is not the comity of courts, whereby judges decline to exercise jurisdiction over matters more appropriately adjudged elsewhere, but rather what might be termed "prescriptive comity": the respect sovereign nations afford each other by limiting the reach of their laws. That comity is exercised by legislatures when they enact laws, and courts assume it has been exercised when they come to interpreting the scope of laws their legislatures have enacted. It is a traditional component of choice-of-law theory. See J. Story, Commentaries on the Conflict of Laws ง 38 (1834) (distinguishing between the "comity of the courts" and the "comity of nations," and defining the latter as "the true foundation and extent of the obligation of the laws of one nation within the territories of another"). Comity in this sense includes the choice-oflaw principles that, "in the absence of contrary congressional direction," are assumed to be incorporated into our substantive laws having extraterritorial reach. Romero, supra, at 382-383; see also Lauritzen, supra, at 578-579; Hilton v. Guyot, 159 U. S. 113, 162-166 (1895). Considering comity in *818 this way is just part of determining whether the Sherman Act prohibits the conduct at issue.[9] In sum, the practice of using international law to limit the extraterritorial reach of statutes is firmly established in our jurisprudence. In proceeding to apply that practice to the present cases, I shall rely on the Restatement (Third) for the relevant principles of international law. Its standards appear fairly supported in the decisions of this Court construing international choice-of-law principles (Lauritzen, Romero, and McCulloch ) and in the decisions of other federal courts, especially Timberlane. Whether the Restatement precisely reflects international law in every detail matters little here, as I believe this litigation would be resolved the same way under virtually any conceivable test that takes account of foreign regulatory interests. Under the Restatement, a nation having some "basis" for jurisdiction to prescribe law should nonetheless refrain from exercising that jurisdiction "with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable." Restatement (Third) ง 403(1). The "reasonableness" inquiry turns on a number of factors including, but not limited to: "the extent to which the activity takes place within the territory [of the regulating state]," id., ง 403(2)(a); "the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the *819 activity to be regulated," id., ง 403(2)(b); "the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted," id., ง 403(2)(c); "the extent to which another state may have an interest in regulating the activity," id., ง 403(2)(g); and "the likelihood of conflict with regulation by another state," id., ง 403(2)(h). Rarely would these factors point more clearly against application of United States law. The activity relevant to the counts at issue here took place primarily in the United Kingdom, and the defendants in these counts are British corporations and British subjects having their principal place of business or residence outside the United States.[10] Great Britain has established a comprehensive regulatory scheme governing the London reinsurance markets, and clearly has a heavy "interest in regulating the activity," id., ง 403(2)(g). See 938 F. 2d, at 932-933; In re Insurance Antitrust Litigation, 723 F. Supp. 464, 487-488 (ND Cal. 1989); see also J. Butler & R. Merkin, Reinsurance Law A.1.1-02 (1992). Finally, ง 2(b) of the McCarran-Ferguson Act allows state regulatory statutes to override the Sherman Act in the insurance field, subject only to the narrow "boycott" exception set forth in ง 3(b)โ€”suggesting that "the importance of regulation to the [United States]," Restatement (Third) ง 403(2)(c), is slight. Considering these factors, I think it unimaginable that an assertion of legislative jurisdiction by the United States would be considered reasonable, and therefore it is inappropriate to assume, in the absence of statutory indication to the contrary, that Congress has made such an assertion. *820 It is evident from what I have said that the Court's comity analysis, which proceeds as though the issue is whether the courts should "decline to exercise . . . jurisdiction," ante, at 798, rather than whether the Sherman Act covers this conduct, is simply misdirected. I do not at all agree, moreover, with the Court's conclusion that the issue of the substantive scope of the Sherman Act is not in the cases. See ante, at 796, n. 22; ante, at 797, n. 24. To be sure, the parties did not make a clear distinction between adjudicative jurisdiction and the scope of the statute. Parties often do not, as we have observed (and have declined to punish with procedural default) before. See the excerpt from Lauritzen quoted supra, at 812; see also Romero, 358 U. S., at 359. It is not realistic, and also not helpful, to pretend that the only really relevant issue in this litigation is not before us. In any event, if one erroneously chooses, as the Court does, to make adjudicative jurisdiction (or, more precisely, abstention) the vehicle for taking account of the needs of prescriptive comity, the Court still gets it wrong. It concludes that no "true conflict" counseling nonapplication of United States law (or rather, as it thinks, United States judicial jurisdiction) exists unless compliance with United States law would constitute a violation of another country's law. Ante, at 798-799. That breathtakingly broad proposition, which contradicts the many cases discussed earlier, will bring the Sherman Act and other laws into sharp and unnecessary conflict with the legitimate interests of other countriesโ€”particularly our closest trading partners. In the sense in which the term "conflic[t]" was used in Lauritzen, 345 U. S., at 582, 592, and is generally understood in the field of conflicts of laws, there is clearly a conflict in this litigation. The petitioners here, like the defendant in Lauritzen, were not compelled by any foreign law to take their allegedly wrongful actions, but that no more precludes a conflict-of-laws analysis here than it did there. See id., at 575-576 (detailing the differences between foreign and *821 United States law). Where applicable foreign and domestic law provide different substantive rules of decision to govern the parties' dispute, a conflict-of-laws analysis is necessary. See generally R. Weintraub, Commentary on Conflict of Laws 2-3 (1980); Restatement (First) of Conflict of Laws ง 1, Comment c and Illustrations (1934). Literally the only support that the Court adduces for its position is ง 403 of the Restatement (Third)โ€”or more precisely Comment e to that provision, which states: "Subsection (3) [which says that a State should defer to another state if that State's interest is clearly greater] applies only when one state requires what another prohibits, or where compliance with the regulations of two states exercising jurisdiction consistently with this section is otherwise impossible. It does not apply where a person subject to regulation by two states can comply with the laws of both . . . ." The Court has completely misinterpreted this provision. Subsection (3) of ง 403 (requiring one State to defer to another in the limited circumstances just described) comes into play only after subsection (1) of ง 403 has been complied withโ€”i. e., after it has been determined that the exercise of jurisdiction by both of the two States is not "unreasonable." That prior question is answered by applying the factors (inter alia) set forth in subsection (2) of ง 403, that is,precisely the factors that I have discussed in text and that the Court rejects.[11] *822 * * * I would reverse the judgment of the Court of Appeals on this issue, and remand to the District Court with instructions to dismiss for failure to state a claim on the three counts at issue in No. 91-1128. NOTES [*] Together with No. 91-1128, Merrett Underwriting Agency Management Ltd. et al. v. California et al., also on certiorari to the same court. [โ€”] Briefs of amici curiae urging reversal were filed for the Government of Canada by Douglas E. Rosenthal; for the Government of the United Kingdom of Great Britain and Northern Ireland by Mark R. Joelson; for the American Insurance Association et al. by John E. Nolan, Jr., Craig A. Berrington, and Patrick J. McNally; for the National Association of Casualty & Surety Agents et al. by Anthony C. Epstein and Ann M. Kappler; for the National Conference of Insurance Legislators by Stephen W. Schwab, Seymour Simon, and Reuben A. Bernick; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of Texas et al. by Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Thomas P. Perkins, Jr., Mark Tobey, Katherine D. Farroba, and Floyd Russell Ham, Assistant Attorneys General, Charles M. Oberly III, Attorney General of Delaware, John J. Polk, Deputy Attorney General, Robert A. Butterworth, Attorney General of Florida, Scott E. Clodfelter, Assistant Attorney General, Robert A. Marks, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Brett T. DeLange, Deputy Attorney General, Bonnie J. Campbell, Attorney General of Iowa, John R. Perkins, Deputy Attorney General, Chris Gorman, Attorney General of Kentucky, Robert V. Bullock, Assistant Attorney General, Mike Moore, Attorney General of Mississippi, Jim Steele, Special Assistant Attorney General, William L. Webster, Attorney General of Missouri, Henry T. Herschel, Tom Udall, Attorney General of New Mexico, Frankie Sue Del Papa, Attorney General of Nevada, Lacy H. Thornburg, Attorney General of North Carolina, James C. Gulick, Special Deputy Attorney General, and K. D. Sturgis, Assistant Attorney General, Nicholas J. Spaeth, Attorney General of North Dakota, David W. Huey, Assistant Attorney General, James E. O'Neil, Attorney General of Rhode Island, Maureen G. Glynn, Special Assistant Attorney General, T. Travis Medlock, Attorney General of South Carolina, Mark Barnett, Attorney General of South Dakota, Jeffrey P. Hallem, Assistant Attorney General, R. Paul Van Dam, Attorney General of Utah, Patrice Arent and Cy H. Castle, Assistant Attorneys General, Jeffrey L. Amestoy, Attorney General of Vermont, Julie Brill, Assistant Attorney General, and Mary Sue Terry, Attorney General of Virginia; for the National League of Cities et al. by Lawrence Kill and Anthony P. Coles; and for the Service Station Dealers of America by Dimitri G. Daskalopoulos. Richard I. Fine filed a brief for the Service Industry Council et al. as amicus curiae. [*] Justice White, Justice Blackmun, and Justice Stevens join this opinion in its entirety, and The Chief Justice joins Parts I, IIโ€”A, III, and IV. [1] CGL insurance provides "coverage for third party casualty damage claims against a purchaser of insurance (the `insured')." App. 8 (Cal. Complaint ถ 4.a). [2] Following the lower courts and the parties, see In re Insurance Antitrust Litigation, 938 F. 2d 919, 924, 925 (CA9 1991), we will treat the complaint filed by California as representative of the claims of Alabama, Arizona, California, Massachusetts, New York, West Virginia, and Wisconsin, and the complaint filed by Connecticut as representative of the claims of Alaska, Colorado, Connecticut, Louisiana, Maryland, Michigan, Minnesota, Montana, New Jersey, Ohio, Pennsylvania, and Washington. As will become apparent, the California and Connecticut Complaints differ slightly in their presentations of background information and their claims for relief; their statements of facts are identical. Because the private party plaintiffs have chosen in their brief in this Court to use the California Complaint as a "representative model" of their claims, Brief for Respondents (Private Party Plaintiffs) 3, n. 6, we will assume that their complaints track that complaint. On remand, the courts below will of course be free to take into account any relevant differences among the complaints that the parties may bring to their attention. [3] The First Claim for Relief in the Connecticut Complaint, App. 88-90 (ถถ 115-119), charges all the defendants with an overarching conspiracy to force all four of these changes on the insurance market. The eight federal-law Claims for Relief in the California Complaint, id., at 36-49 (ถถ 111-150), charge various subgroups of the defendants with separate conspiracies that had more limited objects; not all of the defendants are alleged to have desired all four changes. [4] The First Claim for Relief in the Connecticut Complaint, id., at 88-90 (ถถ 115-119), charging an overarching conspiracy encompassing all of the defendants and all of the conduct alleged,is a special case. See n. 18, infra. [5] The California and Connecticut Complaints' Statements of Facts describe this conspiracy as involving "[s]pecialized reinsurers in London and the United States." App. 34 (ถ 106);id., at 87 (Conn. Complaint ถ 110). The claims for relief, however, name only London reinsurers; they do not name any of the domestic defendants who are the petitioners in No. 91โ€” 1111. See id., at 48 (ถ 147); id., at 96 (Conn. Complaint ถ 136).Thus, we assume that the domestic reinsurers alleged to be involved in this conspiracy are among the "unnamed co-conspirators" mentioned in the complaints. See id., at 48 (Cal. Complaint ถ 147); id., at 96 (Conn. Complaint ถ 136). [6] The Ninth, Tenth, and Eleventh Claims for Relief inthe California Complaint, id., at 49-50 (ถถ 151-156), and the Seventh Claim for Relief in the Connecticut Complaint, id., at 98 (ถถ 145-146), allege state-law violations not at issue here. [7] These are the Fifth, Sixth, and Eighth Claims for Relief in the California Complaint, and the corresponding Third, Fourth, and Fifth Claims for Relief in the Connecticut Complaint. [8] We limited our grant of certiorari in No. 91-1111 to these questions: "1. Whether domestic insurance companies whose conduct otherwise would be exempt from the federal antitrust laws under the McCarranFerguson Act lose that exemption because they participate with foreign reinsurers in the business of insurance," and "2. Whether agreements among primary insurers and reinsurers on such matters as standardized advisory insurance policy forms and terms of insurance coverage constitute a `boycott' outside the exemption of the McCarran-Ferguson Act." Pet. for Cert. in No. 91-1111, p. i; see 506 U. S. 814 (1992). [9] The question presented in No. 91-1128 is: "Did the court of appeals properly assess the extraterritorial reach of the U. S. antitrust laws in light of this Court's teachings and contemporary understanding of international law when it held that a U. S. district court may apply U. S. law to the conduct of a foreign insurance market regulated abroad?" Pet. for Cert. in No. 91-1128, p. i. [10] The activities in question here, of course, are alleged to violate federal law, and it might be tempting to think that unlawful acts are implicitly excluded from "the business of insurance." Yet ง 2(b)'s grant of immunity assumes that acts which, but for that grant, would violate the Sherman Act, the Clayton Act, or the Federal Trade Commission Act, are part of "the business of insurance." [11] We also cited two cases dealing with the immunity of certain agreements of labor unions under the Clayton and Norris-LaGuardia Acts. See 440 U. S., at 231-232. These cases, however, did not hold that labor unions lose their immunity whenever they enter into agreements with employers; to the contrary, we acknowledged in one of the cases that "the law contemplates agreements on wages not only between individual employers and a union but agreements between the union and employers in a multi-employer bargaining unit." Mine Workers v. Pennington, 381 U. S. 657, 664 (1965). Because the cases stand only for the proposition that labor unions are not immune from antitrust liability for certain types of agreements with employers, such as agreements "to impose a certain wage scale on other bargaining units," id., at 665, they do not support the far more general statement that exempt entities lose immunity by conspiring with nonexempt entities. [12] The Court of Appeals's assumption that "the American reinsurers . . . are subject to regulation by the states and therefore prima facie immune," 938 F. 2d, at 928, appears to rest on the entity-based analysis we have rejected. As with the foreign reinsurers, we express no opinion whether the activities of the domestic reinsurers were "regulated by State Law" and leave that question to the Court of Appeals on remand. [13] Petitioners correctly concede this point. See Brief for Petitioners in No. 91-1111, p. 32, n. 14. [14] As we have noted before, see Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205, 217 (1979); SEC v. National Securities, Inc., 393 U. S. 453, 458 (1969), the McCarran-Ferguson Act was precipitated by our holding in South-Eastern Underwriters that the business of insurance was interstate commerce and thus subject generally to federal regulation under the Commerce Clause, and to scrutiny under the Sherman Act specifically. Congress responded, both to "ensure that the States would continue to have the ability to tax and regulate the business of insurance," Royal Drug Co., 440 U. S., at 217-218 (footnote omitted), and to limit the application of the antitrust laws to the insurance industry, id., at 218. In drafting the ง 3(b) exception to the ง 2(b) grant of antitrust immunity, Congress borrowed language from our description of the indictment in SouthEastern Underwriters as charging that "[t]he conspirators not only fixed premium rates and agents' commissions, but employed boycotts together with other types of coercion and intimidation to force nonmember insurance companies into the conspiracies." 322 U. S., at 535. [15] Section 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. ง 2, prohibits monopolization of, or attempts or conspiracies to monopolize, "any part of the trade or commerce among the several States, or with foreign nations." [16] The majority claims that this refusal to deal was a boycott only because "membership in the association [had] no discernible bearing upon the terms of the refused reinsurance contracts." Post, at 809. Testimony at the hearings on the bill that became the McCarran-Ferguson Act indicates that the insurance companies thought otherwise. "We say `You do not issue insurance to a company that does not do business the way we think it should be done and belong to our association.' . . . It is for the protection of the public, the stockholders, and the companies. . . . You know when those large risks are taken that they have to be reinsured. We do not want to have to take a risk that is bad, or at an improper rate, or an excessive commission, we do not want our agents to take that, nor do we want to reinsure part of the risk that is written that way. We feel this wayโ€”that some groups are doing business in what is not the proper way, we feel it is not in the interest of the companies and it is not in the interest of the public, and we just do not want to do business with them." Joint Hearing on S. 1362, H. R. 3269, and H. R. 3270 before the Subcommittees of the Senate Committee on the Judiciary, 78th Cong., 1st Sess., pt. 2, p. 333 (1943) (statement of Edward L. Williams, President, Insurance Executives Association). [17] In passing the McCarran-Ferguson Act, Justice Stewart argued, "Congress plainly wanted to allow the States to authorize anticompetitive practices which they determined to be in the public interest." St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531, 565 (1978) (dissenting opinion). Hence, ง 2(b) provides that the federal antitrust laws will generally not be applicable to those insurance business practices "regulated by State law," and presumably state law could, for example, either mandate price fixing, or specifically authorize voluntary price-fixing agreements. On the other hand, Congress intended to delegate regulatory power only to the States; nothing in the McCarran-Ferguson Act suggests that Congress wanted one insurer, or a group of insurers, to be able to formulate and enforce policy for other insurers. Thus, the enforcement activities that distinguish ง 3(b) "boycotts" from other concerted activity include, in this context, "private enforcement . . . of industry rules and practices, even if those rules and practices are permitted by state law." Id., at 565-566 (emphasis in original) (footnote omitted). [18] The First and Sixth Claims for Relief in the Connecticut Complaint, and the Seventh Claim for Relief in the California Complaint, which also name some or all of the petitioners, present special cases. The First Claim for Relief in the Connecticut Complaint alleges an overarching conspiracy involving all of the defendants named in the complaint and all of the conduct alleged. As such, it encompasses "boycott" activity, and the Court of Appeals was correct to reverse the District Court's order dismissing it. As currently described in the complaint's statement of facts, however, some of the actions of the reinsurers and the retrocessional reinsurers appear to have been taken independently, rather than at the behest of the primary insurer defendants. I express no opinion as to whether those acts, if they were indeed taken independently, could amount to ง 3(b) boycotts; but I note that they lack the key element on which I rely in this litigation to find a sufficient allegation of boycott. The Seventh Claim for Relief in the California Complaint, and the virtually identical Sixth Claim for Relief in the Connecticut Complaint, allege a conspiracy among a group of domestic primary insurers, foreign reinsurers, and the ISO to draft restrictive model forms and policy language for "umbrella" and "excess" insurance. On these claims, the Court of Appeals reversed the District Court's order of dismissal as to the domestic defendants solely because those defendants "act[ed] in concert" with nonexempt foreign defendants, 938 F. 2d, at 931, relying on reasoning that the Court has found to be in error, see supra, at 781-784. The Court of Appeals found that "[n]o boycotts [were] alleged as the defendants' modus operandi in respect to [excess and umbrella] insurance." 938 F. 2d, at 930. I agree; even under a liberal construction of the complaints infavor of plaintiffs, I can find no allegation of any refusal to deal in connection with the drafting of the excess and umbrella insurance language. Therefore I conclude that neither the participation of unregulated parties nor the application of ง 3(b) furnished a basis to reverse the District Court's dismissal of these claims as against the domestic insurers, and I would reverse the judgment of the Court of Appeals in this respect. The Fifth, Sixth, and Eighth Claims for Relief in the California Complaint and the Third, Fourth, and Fifth Claims for Relief in the Connecticut Complaint also allege concerted refusals to deal; but because they do not name any of the petitioners in No. 91-1111, the Court has no occasion to consider whether they allege ง 3(b) boycotts. [19] The majority contends that its concept of boycott is still "multifaceted" because it can be modified by such adjectives as "punitive," "labor," "political," and "social." Post, at 804, n.3. This does not hide the fact that it is attempting to concoct a "precise definition" of the term, post, at 800, composed of a simple set of necessary and sufficient conditions. [20] As we have noted, see supra, at 776-777, each of these claims has a counterpart in the Connecticut Complaint. The claims each name different groups of London reinsurers, and not all of the named defendants are petitioners in No. 91-1128; but nothing in our analysis turns on these variations. [21] One of the London reinsurers, Sturge Reinsurance Syndicate Management Limited, argues that the Sherman Act does not apply to its conduct in attending a single meeting at which it allegedly agreed to exclude all pollution coverage from its reinsurance contracts. Brief for Petitioner Sturge Reinsurance Syndicate Management Ltd. in No. 91-1128, p. 22. Sturge may have attended only one meeting, but the allegations, which we are bound to credit, remain that it participated in conduct that was intended to and did in fact produce a substantial effect on the American insurance market. [22] Justice Scalia believes that what is at issue in this litigation is prescriptive, as opposed to subject-matter, jurisdiction. Post, at 813-814. The parties do not question prescriptive jurisdiction, however, and for good reason: it is well established that Congress has exercised such jurisdiction under the Sherman Act. See G. Born & D. Westin, International Civil Litigation in United States Courts 542, n. 5 (2d ed. 1992) (Sherman Act is a "prime exampl[e] of the simultaneous exercise of prescriptive jurisdiction and grant of subject matter jurisdiction"). [23] Under ง 402 of the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 96 Stat. 1246, 15 U. S. C. ง 6a, the Sherman Act does not apply to conduct involving foreign trade or commerce, other than import trade or import commerce, unless "such conduct has a direct, substantial, and reasonably foreseeable effect" on domestic or import commerce. ง 6a(1)(A). The FTAIA was intended to exempt from the Sherman Act export transactions that did not injure the United States economy, see H. R. Rep. No. 97-686, pp. 2-3, 9-10 (1982); P. Areeda & H. Hovenkamp, Antitrust Law ถ 236'a, pp. 296-297 (Supp. 1992), and it is unclear how it might apply to the conduct alleged here. Also unclear is whether the Act's "direct, substantial, and reasonably foreseeable effect" standard amends existing law or merely codifies it. See id., ถ 236'a, p. 297. We need not address these questions here. Assuming that the FTAIA's standard affects this litigation, and assuming further that that standard differs from the prior law, the conduct alleged plainly meets its requirements. [24] Justice Scalia contends that comity concerns figure into the prior analysis whether jurisdiction exists under the Sherman Act. Post, at 817โ€” 818. This contention is inconsistent with the general understanding that the Sherman Act covers foreign conduct producing a substantial intended effect in the United States, and that concerns of comity come into play, if at all, only after a court has determined that the acts complained of are subject to Sherman Act jurisdiction. See United States v. Aluminum Co. of America, 148 F. 2d 416, 444 (CA2 1945) ("[I]t follows from what we have . . . said that [the agreements at issue] were unlawful [under the Sherman Act], though made abroad, if they were intended to affect imports and did affect them"); Mannington Mills, Inc. v. Congoleum Corp., 595 F. 2d 1287, 1294 (CA3 1979) (once court determines that jurisdiction exists under the Sherman Act, question remains whether comity precludes its exercise); H. R. Rep. No. 97-686, supra, at 13. But cf. Timberlane Lumber Co. v. Bank of America, N. T. & S. A., 549 F. 2d 597, 613 (CA9 1976); 1 J. Atwood & K. Brewster, Antitrust and American Business Abroad 166 (1981). In any event, the parties conceded jurisdiction at oral argument, see supra, at 795, and we see no need to address this contention here. [25] Justice Scalia says that we put the cart before the horse in citing this authority, for he argues it may be apposite only after a determination that jurisdiction over the foreign acts is reasonable. Post, at 821. But whatever the order of cart and horse, conflict in this sense is the only substantial issue before the Court. [*] Justice O'Connor, Justice Kennedy, and Justice Thomas join this opinion in its entirety, and The Chief Justice joins Part I of this opinion. [1] Section 3(b) of the McCarran-Ferguson Act, 15 U. S. C. ง 1013(b), provides: "Nothing contained in this Act shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." [2] Under the Oxford English Dictionary definition, of course, this example would not be a "boycott" because the tenants had not suspended all relations with the Captain. But if one recognizes partial boycotts (as we and Justice Souter do), and if one believes (as Justice Souter does but we do not) that the purpose of a boycott can be to secure different terms in the very transaction that is the supposed subject of the boycott, then it is impossible to explain why this is not a boycott. Under Justice Souter's reasoning, it would be a boycott, at least if the tenants acted "at the behest of" (whatever that means), ante, at 792, the Irish Land League. This hypothetical shows that the problems presented by partial boycotts (which we agree fall within ง 3(b)) make more urgent the need to distinguish boycotts from concerted agreements on terms. [3] Justice Souter points out that the Court in St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531 (1978), found the term "boycott" "does not refer to ` "a unitary phenomenon,"` " ante, at 788 (quoting Barry, supra, at 543 (quoting P. Areeda, Antitrust Analysis 381 (2d ed. 1974))), and asserts that our position contradicts this. Ante, at 793-794. But to be not a "unitary phenomenon" is different from being an all-encompassing one. "Boycott" is a multifaceted "phenomenon" that includes conditional boycotts, punitive boycotts, coercive boycotts, partial boycotts, labor boycotts, political boycotts, social boycotts, etc. It merely does not include refusals to deal because of objections to proposed terms. [4] See United States v. Frankfort Distilleries, Inc., 324 U. S. 293, 295โ€” 296, 298 (1945) (refusal to engage in all transactions with targeted companies unless they agreed to defendants' price-fixing scheme); United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 535, 536, 562 (1944) (discussed infra, at 808-809); United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 722 (1944) (word used in reference to a refusal to deal as means of enforcing resale price maintenance); Fashion Originators' Guild of America, Inc. v. FTC, 312 U. S. 457, 461, 465, 467 (1941) (boycott of retailers who sold competitors' products); United States v. American Livestock Commission Co., 279 U. S. 435, 436-438 (1929) (absolute boycott of a competing livestock association, intended to drive it out of business); Eastern States Retail Lumber Dealers' Assn. v. United States, 234 U. S. 600, 610-611 (1914) (discussed supra, at 803); Nash v. United States, 229 U. S. 373, 376 (1913) (word used in passing). [5] See, e. g., Bedford Cut Stone Co. v. Stone Cutters, 274 U. S. 37, 47, 49 (1927) (refusal to work on stone received from nonunion quarries); Duplex Printing Press Co. v. Deering, 254 U. S. 443, 462-463 (1921) (boycott of target's product until it agreed to union's employment demands); Gompers v. Bucks Stove & Range Co., 221 U. S. 418 (1911) (boycott of company's products because of allegedly unfair labor practices); Loewe v. Lawlor, 208 U. S. 274 (1908) (boycott of fur hats made by a company that would not allow its workers to be unionized). See also Apex Hosiery Co. v. Leader, 310 U. S. 469, 503-505 (1940) (distinguishing between ordinary strikes and boycotts). [6] Once it is determined that the actions of the reinsurers did not constitute a "boycott," but rather a concerted agreement to terms, it follows that their actions do not constitute "coercion" or "intimidation" within the meaning of the statute. That is because, as previously mentioned, such concerted agreements do "not coerc[e] anyone, at least in the usual sense of that word," L. Sullivan, Law of Antitrust 257 (1977), and because they are precisely what is protected by McCarran-Ferguson immunity. [7] We agree with Justice Souter's conclusion, ante, at 790-791, n. 18, that the Seventh Claim for Relief in the California Complaint and the Sixth Claim for Relief in the Connecticut Complaint fail to allege any ง 3(b) boycotts. [8] The counts at issue in this litigation are the Fifth, Sixth, and Eighth Claims for Relief in the California Complaint. See App. 43-46 (ถถ 131โ€” 140), id., at 47-49 (ถถ 146-150). [9] Some antitrust courts, including the Court of Appeals in the present cases, have mistaken the comity at issue for the "comity of courts," which has led them to characterize the question presented as one of "abstention," that is, whether they should "exercise or decline jurisdiction." Mannington Mills, Inc. v. Congoleum Corp., 595 F. 2d 1287, 1294, 1296 (CA3 1979); see also In re Insurance Antitrust Litigation, 938 F. 2d 919, 932 (CA9 1991). As I shall discuss, that seems to be the error the Court has fallen into today. Because courts are generally reluctant to refuse the exercise of conferred jurisdiction, confusion on this seemingly theoretical point can have the very practical consequence of greatly expanding the extraterritorial reach of the Sherman Act. [10] Some of the British corporations are subsidiaries of American corporations, and the Court of Appeals held that "[t]he interests of Britain are at least diminished where the parties are subsidiaries of American corporations." Id., at 933. In effect, the Court of Appeals pierced the corporate veil in weighing the interests at stake. I do not think that was proper. [11] The Court skips directly to subsection (3) of ง 403, apparently on the authority of Comment j to ง 415 of the Restatement (Third). See ante, at 799. But the preceding commentary to ง 415 makes clear that "[a]ny exercise of [legislative] jurisdiction under this section is subject to the requirement of reasonableness" set forth in ง 403(2). Restatement (Third) ง 415, Comment a. Comment j refers back to the conflict analysis set forth in ง 403(3),which, as noted above, comes after the reasonableness analysis of ง 403(2).

Filed 3/17/16 Windsor Properties v. JPMorgan Chase Bank CA2/8 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 EIGHT WINDSOR PROPERTIES, INC., B261709 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. SC121468) v. JPMORGAN CHASE BANK, N.A., et al., Defendants and Respondents. APPEAL from the judgment of the Superior Court of Los Angeles County. Richard A. Stone, Judge. Reversed. Nass Law Firm, Edmond Nassirzadeh and Justin R. Felton for Plaintiff and Appellant. Locke Lord, Conrad V. Sison and Daniel A. Solitro for Defendants and Respondents. **********  This is an appeal from the sustaining of a demurrer without leave to amend. Plaintiff Windsor Properties, Inc., sued defendants JPMorgan Chase Bank N.A. (Chase), Quality Loan Service Corporation, and Select Portfolio Servicing, Inc., alleging causes of action for declaratory relief, slander of title, and cancellation of instruments. The lawsuit concerns a residential unit in a stock cooperative building in Santa Monica, California. Residential stock cooperatives are commonplace in New York but not in California. Plaintiff holds a stock certificate and leasehold interest in the property issued by Ocean Towers Housing Corporation (Ocean Towers), the owner of the building. Plaintiff purchased its interest in the property from Ocean Towers after Ocean Towers terminated the previous owner’s lease through an unlawful detainer action. Plaintiff contends it acquired the property free and clear of any liens, on the theory that Chase’s secured interest in the unit was extinguished by the unlawful detainer judgment. Defendants demurred, and the court found as a matter of law that Chase’s first priority lien was not extinguished by the unlawful detainer judgment. We reverse. BACKGROUND The following facts are taken from the complaint and from defendants’ request for judicial notice, which was granted by the trial court: Ocean Towers owns real property located at 201 Ocean Avenue, in Santa Monica, California. The Ocean Avenue property is a stock cooperative building. Ocean Towers issues shares and proprietary leases to shareholders/tenants, permitting them to occupy particular units within the building. The proprietary leases require the shareholders/tenants to pay monthly rent and maintenance payments to Ocean Towers. On December 15, 1992, Richard Housman became a shareholder and tenant of unit 1905P. Ocean Towers had a secured interest in the lease and share certificate, secured by a deed of trust, recorded on December 15, 1992. Among other remedies, Ocean Towers’ deed of trust expressly gave it the right to pursue an unlawful detainer action in the event of Mr. Housman’s default in the payment of rent and maintenance expenses. 2  On July 12, 2005, Mr. Housman obtained a loan which was secured by the lease, shares, and improvements to the unit in favor of Chase’s predecessor in interest, Metrocities Mortgage, LLC (Metrocities). Mr. Housman, Metrocities, Ocean Towers, and Union Bank entered into a Recognition Agreement, by which Ocean Towers acknowledged its security interest was subordinate to Metrocities’ first position. The Recognition Agreement defined the stock certificate and lease, in which Metrocities had a first priority secured interest, collectively as the “proprietary documents.” The Recognition Agreement provides in the recitals that Metrocities agreed to make a loan to Mr. Housman if Ocean Towers agreed that its interest in Mr. Housman’s leasehold estate and stock certificate were subordinate to Metrocities’ first priority interest in those documents, to be secured by a deed of trust. Ocean Towers represented and warranted for the benefit of Metrocities (and acknowledged that Metrocities relied on this representation and warranty) that Ocean Towers consented to Metrocities having a first priority interest in the proprietary documents, and that Ocean Towers had a second priority interest in the proprietary documents, subordinate to that of Metrocities. The Recognition Agreement provides the following obligations of Ocean Towers and Metrocities in the event of Mr. Housman’s default under the proprietary documents: “[Ocean Towers] will forbear from exercising its immediate right to terminate Borrower’s interest in the Unit for thirty (30) calendar days following Lender’s receipt of the applicable default notice (the ‘Cure Period’); and . . . [¶] Lender must either: [¶] Cure the default within the Cure Period, or if the default is not curable in the Cure Period, commence the cure during the Cure Period, and diligently pursue the cure to completion, provided that the acceptance of such actions as a complete cure shall be in the sole and absolute discretion of [Ocean Towers]; or [¶] Notwithstanding that Borrower may also be in default under the Loan, forebear from any action to enforce its remedies under the Loan so long as [Ocean Towers] is pursuing any of its remedies under the Proprietary Documents, the Operative Documents, and the Second Deed of Trust. If [Ocean Towers] exercises its power of sale under the Second Deed of Trust, Lender acknowledges that its security interest in the Lease and the Shares will be terminated concurrently with the sale, 3 provided that Lender is paid an amount equal to the full unpaid amount due under the Loan as of the date hereof.” Mr. Housman defaulted on his loan to Metrocities, and defendants caused a notice of default and election to sell to be recorded in February 2010. But defendants did not actually conduct a trustee’s sale and took no further action at that time. Mr. Housman also defaulted on his rent and maintenance payments to Ocean Towers. On November 4, 2011, Ocean Towers gave a three-day notice to pay rent or quit. Ocean Towers sent a copy of the three-day notice to defendant Quality Loan Service Corporation, the trustee under the Metrocities deed of trust, along with a letter stating the amount due to cure the default, and further advising “[i]f the default is not cured, [Ocean Towers] will pursue its rights and remedies which may include, without limitation, the termination and forfeiture of the Lease which secures your deed of trust.” On August 27, 2012, Ocean Towers filed its unlawful detainer action. Judgment was entered in favor of Ocean Towers on September 20, 2012, forfeiting the lease. Ocean Towers then sold the unit to plaintiff on October 2, 2012. Plaintiff entered into a new “Memorandum of Proprietary Lease” with Ocean Towers on October 1, 2012. On October 9, 2012, counsel for Ocean Towers sent a letter to defendant Quality Loan Service Corporation informing it of the unlawful detainer judgment, stating its view that Chase’s loan was now unsecured, and demanding reconveyance of the 2005 deed of trust in favor of Chase’s predecessor, Metrocities. On July 17, 2013, Chase gave notice that it was transferring servicing of the mortgage loan to defendant Select Portfolio Servicing, Inc. It did not reconvey the deed of trust. Plaintiff alleges in this action that the forfeiture of Mr. Housman’s lease also extinguished Mr. Housman’s stock certificate, and that because the lease and stock served as collateral for Chase’s loan, “Chase Bank’s security interest in the Property was extinguished by operation of law, and Chase Bank no longer had any right to exercise a power of sale, and any and all obligations in favor of Chase Bank with respect to the property became unsecured.” 4  Defendants demurred to all of plaintiff’s causes of action, on the ground that none of the claims had any merit because they were all based on the erroneous legal conclusion that Chase’s security interest was extinguished by Ocean Towers’ unlawful detainer judgment against Mr. Housman. The trial court requested further briefing on the applicable law and statutes relating to stock cooperatives. Plaintiff’s supplemental brief argued that it stated a valid claim for declaratory relief, and that leave to amend should be granted to include a claim for quiet title. Plaintiff lodged a proposed first amended verified complaint which stated a single cause of action for quiet title. The trial court sustained the demurrer without leave to amend, concluding that under the Recognition Agreement, Ocean Towers “expressly subordinated its security interest to Metrocities’ security interest” and that Metrocities’ “shares could only be extinguished if the loan was fully repaid.” This timely appeal followed the trial court’s judgment of dismissal. DISCUSSION A demurrer tests the legal sufficiency of the complaint. We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action. For purposes of review, we accept as true all material facts alleged in the complaint, but not contentions, deductions or conclusions of fact or law. We also consider matters that may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.) When a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.” (Blank, supra, at p. 318.) A stock cooperative is a type of common interest development. (Civ. Code, Former § 1351, subd. (c)(4), added by Stats. 1985, ch. 874, § 14 and repealed by Stats. 2012, ch. 180, § 1, eff. Jan. 1, 2013, op. Jan. 1, 2014 [enacting Civ. Code, § 4100, subd. (d)].) It is defined by former Civil Code section 1351, subdivision (m) (now 5 section 4190, subd. (a)) as “a development in which a corporation is formed or availed of, primarily for the purpose of holding title to, either in fee simple or for a term of years, improved real property, and all or substantially all of the shareholders of the corporation receive a right of exclusive occupancy in a portion of the real property, title to which is held by the corporation. ” “The owners’ interest in the corporation, whether evidenced by a share of stock, a certificate of membership, or otherwise, shall be deemed to be an interest in a common interest development and a real estate development for purposes of subdivision (f) of Section 25100 of the Corporations Code.” (Civ. Code, former § 1351, subd. (m).) A “separate interest” in a stock cooperative means “the exclusive right to occupy a portion of the real property.” (Civ. Code, former § 1351, subd. (l)(4) [now Civ. Code, § 4185, subd. (a)(4)].) “Both the separate interest . . . and the correlative interest in the stock cooperative corporation, however designated, are interests in real property.” (Civ. Code, § 783.1.) Former Civil Code section 1358, subdivision (d) provided: “In a stock cooperative, any conveyance, judicial sale, or other voluntary or involuntary transfer of the separate interest includes the ownership interest of the corporation, however evidenced. Any conveyance, judicial sale, or other voluntary or involuntary transfer of the owner’s entire estate also includes the owner’s membership interest in the association.” (Former § 1358, subd. (d) [now Civ. Code, § 4640].) As such, a lease and its associated stock interest are indivisible, and an occupant of a unit in a stock cooperative who loses his leasehold interest also loses his stock ownership. (See ibid.) Plaintiff contends that the complaint validly stated a cause of action for declaratory relief, and that it could have been amended to state a valid cause of action for quiet title. Plaintiff does not argue in its opening brief that its claims for slander of title or cancellation of instruments were properly pled. As such, any claim of error as to these causes of action has been forfeited. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99; see Yee v. Cheung (2013) 220 Cal.App.4th 184, 193, fn. 6 [failure to address all 6 causes of action subject to demurrer forfeits any claim of error concerning causes of action not raised on appeal].)1 A claim for declaratory relief is available when “[a]person interested under a written instrument . . . desires a declaration of his or her rights or duties . . . over or upon property . . . in cases of actual controversy relating to the legal rights and duties of the respective parties.” (Code Civ. Proc., § 1060.) A quiet title claim seeks a “determination of the title of the plaintiff against . . . adverse claims.” (Code Civ. Proc., § 761.020, subd. (e); Gerhard v. Stephens (1968) 68 Cal.2d 864, 918 [a quiet title action requires that “plaintiff must prove a title in himself superior to that of defendant.”].) There is no dispute between the parties whether the lien of Metrocities is senior to Ocean Towers’ lien under the Recognition Agreement. Therefore, the trial court erred in finding, “The main issue presented here is whether Metrocities’ 2005 security interest was senior or junior to [Ocean Towers’] proprietary lease in the property.” Plaintiff does not dispute the priority of Metrocities’ lien. Rather, plaintiff contends that Metrocities’ lien was extinguished, even though Ocean Towers did not repay the amount due under Mr. Housman’s loan, because Metrocities failed to protect its rights under the Recognition Agreement. Plaintiff alleges that Ocean Towers gave defendants notice of Mr. Housman’s default in payment of rent and other amounts due to Ocean Towers. Plaintiff contends that Metrocities had the right to cure Mr. Housman’s default within the cure period to protect its secured interest. Plaintiff alleges that Metrocities’ failure to cure the default triggered Ocean Towers’ right to seek termination of Mr. Housman’s interest in the unit. Plaintiff acknowledges that Ocean Towers could have foreclosed on its deed of trust on 1 For the first time in its reply brief, plaintiff attempts to argue these claims are properly stated. New issues raised for the first time in the reply brief need not be considered in the absence of good cause. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) 7 the unit (in which case Ocean Towers would be obligated to pay the amount due to Metrocities), but alleges that Ocean Towers had the right instead to obtain an unlawful detainer judgment. The Recognition Agreement does not address the rights of the parties in the event Ocean Towers obtained an unlawful detainer judgment. Therefore, plaintiff argues that, “Chase’s lien under the Recognition Agreement was, at best, unclear. . . . [U]nder the terms of the Recognition Agreement, . . . Chase . . . lost its security interest in the collateral (which had been terminated) or at least completely lost any right to claim the superiority of its lien on the Unit.” One California case has held that a shareholder-tenant in a stock cooperative is a tenant subject to eviction, and that a stock cooperative that obtains an unlawful detainer judgment in its favor may then be free to sell, lease, or rent the premises to another party. (Sun Terrace Manor v. Municipal Court (1973) 33 Cal.App.3d 739, 743-744.) Defendants cite a New York decision for the proposition that an owner of a stock cooperative may not extinguish a lender’s security interest in the stock certificate and appurtenant proprietary lease of the owner of a unit in default under the lease by cancelling the shares and lease and reselling the unit without applying the proceeds to payment of the indebtedness to the lender. (United Orient Bank v. Green (S.D.N.Y. 1997) 215 B.R. 916, 923-925.) The trial court also cited Green as support for its finding that “Under the Recognition Agreement, Metrocities’ shares could only be extinguished if the loan was fully repaid by Housman.” But in Green, the court’s analysis rested on the finding that the Recognition Agreement in that case barred the coop owners from terminating the leases or canceling the shares absent prior notice to the lenders who held security interests in the leases and shares, and that notice was not given. (Id. at p. 924.) Here, plaintiff specifically alleges that notice was given in conformance with the provisions of the Recognition Agreement, so Green does not establish any rule of law that determines the rights of the parties in this lawsuit. Both parties rely on Glendale Federal Bank v. Hadden (1999) 73 Cal.App.4th 1150. In Glendale Federal, the bank held a deed of trust in a leasehold interest but did 8 not have any contract with the landlord obligating the landlord to give the bank notice of the tenants’ default and an opportunity to cure. Thus, the bank “failed to protect itself from the contingency that its borrowers might default on the lease.” (Id. at p. 1154.) When the tenants defaulted in payment of rent and the landlord obtained an unlawful detainer judgment, the court found the bank had forfeited its interest in the lease. The Glendale Federal court explained the bank could have avoided this consequence. “A lender can protect itself from the lease’s being terminated as a result of a default either by reaching a separate agreement with the landlord which permits it to cure any defaults or by obtaining an amendment to the lease which so provides. [Citation.] The normal lender-protective agreement includes provisions requiring the landlord to give notice to the lender of any defaults and providing time for the lender to cure those defaults. [Citation.]” (Ibid.) Here, plaintiff alleges defendants took steps to protect their interests by entering into various agreements with Ocean Towers but then failed to exercise their right to cure Mr. Housman’s default. Plaintiff alleges the unlawful detainer judgment extinguished not only Mr. Housman’s leasehold interest but also the associated stock interest, since the two are indivisible, and Metrocities thereby lost the collateral that secured the loan to Mr. Housman. Plaintiff seeks a declaration of its unencumbered right to the lease and stock certificate it acquired from Ocean Towers after Ocean Towers terminated Mr. Housman’s lease and associated stock interest, as a consequence of which Metrocities lost its security interest. We express no opinion whether plaintiff may prove its claims, but plaintiff has stated a cause of action for declaratory relief and may amend to add a cause of action for quiet title. DISPOSITION The judgment sustaining the demurrer to the declaratory relief cause of action is reversed, as is the order denying appellant leave to amend to add a cause of action for quiet title. Appellant is to recover its costs on appeal. GRIMES, J. WE CONCUR: BIGELOW, P. J. RUBIN, J 9 

740 F.2d 963 Rabonv.Landon 84-8090 United States Court of Appeals,Fourth Circuit. 7/27/84 1 E.D.Va. CPC DENIED--DISMISSED

16 F.3d 413NOTICE: 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. UNITED STATES of America, Plaintiff-Appellee,v.John Douglas RASCO, Jr., a/k/a/ A.G. Sheets, Defendant-Appellant. No. 93-6998. United States Court of Appeals, Fourth Circuit. Submitted Dec. 16, 1993.Jan. 19, 1994. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Frank W. Bullock, Jr., Chief District Judge. (CR-92-140-G) John Douglas Rasco, Jr., appellant pro se. Scott Patrick Mebane, Asst. U.S. Atty., Greensboro, NC, for appellee. M.D.N.C. DISMISSED. Before HALL and NIEMEYER, Circuit Judges, and SPROUSE, Senior Circuit Judge. OPINION PER CURIAM: 1 Appellant appealed from the district court's order denying his motion to reduce his sentence pursuant to 18 U.S.C.A. Sec. 3582(c)(2) (West Supp.1993). On November 11, 1993, during the pendency of this appeal, Rasco died. We therefore dismiss this appeal as moot. We dispense with oral argument because the facts and legal contentions are adequately presented and argument would not aid the decisional process. 2 DISMISSED.

76 Wis.2d 436 (1977) 251 N.W.2d 449 ROBINSON, Appellant, v. KUNACH, and another, Respondents.[†] No. 75-536. Supreme Court of Wisconsin. Argued January 31, 1977. Decided March 15, 1977. *442 For the appellant there were briefs by Korth, Rodd, Sommer & Mouw, S. C., and oral argument by James A. Johnson, all of Rhinelander. For the respondents there was a brief and oral argument by Lawrence R. Heath, corporation counsel for Oneida County. ROBERT W. HANSEN, J. There were seven counts to plaintiff's complaint, five to which demurrer was sustained and two as to which summary judgment for defendants was granted. Trial court action as to all seven *443 counts is before us and we will deal with each count separately. However, since both plaintiff and defendants devoted all of their oral argument on appeal to the second count, we will begin discussion with the second cause of action pleaded and the demurrer sustained thereto. CAUSE OF ACTION NO. 2. We are faced here with the question of whether or not the relocation of a county trunk highway requires the filing of an environmental impact statement. We deal only with the narrow question as to whether a county is an agency of the state as that phrase is used in sec. 1.11 (2) (c), Stats.[1] We do not deal with the broad underlying question of public policy as to whether counties in this state ought be required to file such statement before proceeding with highway construction. We will only determine whether a county was intended to be included within that section. The trial court here ruled a county was not one of the "agencies of the state" referred to in sec. 1.11(2) (c), the Wisconsin Environmental *444 Protection Act. It is that ruling that is here challenged. [1] Whether the requirement of environmental impact statements applies to counties or refers only to the executive and administrative agencies of the state (as enumerated in ch. 15 of the statutes)[2] is the question. Sec. 1.11 (2) (c) is ambiguous. The phrase "agencies of the state" is not defined in the statute. So the statute on its face is capable of being understood by reasonably well-informed persons either as applying to or not applying to counties. And that is the test of ambiguity.[3] Since the statute is ambiguous, capable of being understood in either of two senses by reasonably well-informed persons, we consider the legislative history of the statute to determine legislative intent. In checking the legislative history of the environmental impact statute, it is apparent that no fiscal note is presently dealing with local government costs in preparing environmental impact statements. Such fiscal note must include "... a reliable estimate of the anticipated change in appropriation authority or state or general local government fiscal liability or revenues under the bill, including to the extent possible a projection of such changes in future biennia."[4] No such fiscal note as to *445 county fiscal liability or projected future costs is attached to the bill creating sec. 1.11 (2) (c), Stats. In fact, no mention whatever is made as to funding of county participation in the state environmental impact act. Such omission of county fiscal liability in preparing impact statements and the concommitant costs thereof clearly indicates the legislature did not intend to include counties. That is, only if such were the legislative intent would sec. 13.10, Stats., not be violated. This finding as to legislative intent to exclude counties is buttressed by the fact that an amendment providing state funds to local governments for preparing impact statements was introduced but not included in the final measure. This amendment, providing for reimbursement to local governments, at the least made clear the requirement of a fiscal note if local governments were covered. More than that, this suggested strongly that no mention of funding for local government impact statements was made because such local units were not reached by sec. 1.11(2) (c), Stats., as introduced and as enacted. Silence can be as eloquent as words, and here the complete silence as to fiscal liability of counties is persuasive that counties were not legislatively intended to be governed by the law. [2] Moreover, where the state legislature intended a county to be an "agency of the state," it has so provided. Thus, in ch. 92, Stats., entitled Soil and Water Conservation, it is specifically made clear that "Wherever used or referred to in this chapter" the phrase "agency of this state" includes the government of the state "and any subdivision, agency or instrumentality, corporate or otherwise, of the government of this state."[5] [Emphasis supplied.] *446 [3] It can be argued that this is intended to define the term "agency of the state" wherever used in the statutes, but this argument encounters the limitation to "Wherever used or referred to in this chapter." [Emphasis supplied.] We see as more reasonable the inference that where in a particular statute the legislature intends "agency of the state" to include local subdivisions of government, it will so state. Where no identification of counties as "agencies of the state" is made, we find a strong suggestion that where they are not included by legislative definition, it is not intended they become included by judicial construction. [4-6] Where an ambiguity exists in a statute the interpretation by the administrative agency charged with the duty of applying such statute is given great weight by this court.[6] It is true that construction of a statute is a question of law and therefore this court is not bound by the interpretation given to a statute by an administrative agency.[7] However the interpretation by the agency which applies the statute has great bearing on the determination as to what the appropriate construction should be.[8] [7] If several rules or several applications of a rule are equally consistent with the purpose of the statute, our court will accept the agency's formulation and application of the standard.[9] Thus where there was no clear *447 legislative mandate as to an appropriate definition of a term used in a statute, and it was incumbent upon the state employment relations commission to formulate a standard to be followed, this court approved the application of the statute as determined by the employment relations commission, finding it to be reasonable and consistent with the purpose of the statute.[10] As to sec. 1.11 (2) (c), Stats., now before us, the responsibility for its implementation and application was on the governor of this state. Soon after sec. 1.11 was enacted into law, Governor Patrick J. Lucey sent out an executive order directing compliance with the new law. All state agencies listed in ch. 15, Stats., including boards and commissions, were directed to comply with the guidelines for administration of sec. 1.11.[11] This executive order did not refer to counties and was not even sent to counties. Subsequently guidelines for the implementation of the environmental protection act were issued by the governor, once again not sent to counties and not referring to counties as included agencies.[12] Thereafter the executive department issued WEPA Agency Action Lists, as required by its guidelines, listing as affected agencies all state government agencies under ch. 15, Stats., but not including counties. Such exclusion was reaffirmed by revised guidelines issued on February 12, 1976. *448 [8] While we deal here with an executive department interpretation, not an administrative agency interpretation, we find supportive of the construction we have given sec. 1.11, Stats., the fact that the executive department directives providing for its application and enforcement do not include counties as "agencies of the state," as that term is used in sec. 1.11. We conclude counties are not "agencies of the state," within the provisions of sec. 1.11(2) (c), Stats., and not required by such statute to prepare and file environmental impact statements as a prerequisite to undertaking construction or relocation of county trunk highways. If they are to be required so to do, it will be for the legislature to add such requirement to sec. 1.11(2) (c) as an amendment thereto. With this major issue resolved— being the sole issue addressed during oral argument—we now turn to consider seriatim the trial court's disposition of the remaining six counts in plaintiff's complaint. CAUSE OF ACTION NO.1. As and for her first cause of action plaintiff alleges the building of the proposed road across her property will deprive her of her rights under sec. 29.415, Stats. In sub. (1) of that statute the state legislature finds that "certain fish and wildlife are endangered and are entitled to preservation and protection as a matter of general state concern," and further finds "the activities of both individual persons and governmental agencies are tending to destroy the few remaining whole plant-animal communities in this state." So finding, the statute concludes by providing that "the legislature urges all persons and agencies to fully consider all decisions in this light." [9] Plaintiff contends this statute, as does sec. 1.11, Stats., reviewed above, requires that decisions reached as to construction of a county highway be made only with full *449 consideration of their impact upon endangered species of fish or wildlife. But the statute stops at "urging" rather than requiring such consideration of endangered species impact. To urge is to recommend but not to mandate or require. We hold the statute involved not to be proscriptive in nature, and not to form a basis for seeking injunctive relief against the proposed relocation of a county highway. The trial court's sustaining of demurrer to plaintiff's cause of action No. 1 is affirmed. CAUSE OF ACTION NO. 3. As the third count in her complaint plaintiff alleges that defendants have the statutory responsibility to cooperate and coordinate with the department of natural resources (DNR) in order to protect, maintain and improve the quality and management of the waters of this state, and that the defendants, and each of them, "have failed to obtain the necessary permits ... failing to fully cooperate with the Department of Natural Resources." Mentioned in this count are permits from the DNR alleged to be required before construction of the county highway can proceed.[13] Without now determining whether such permits are required before road construction can commence, we find two things wrong with plaintiff's contention. The first fatal weakness is that, assuming that none of required permits have been secured as of the present time, there is here no basis for assuming the defendants will not make timely application prior to the time when construction is to be actually commenced. Therefore any claim for injunctive relief on this score would be premature. The second fatal flaw is that the statutes referred to which require DNR permits in certain situations provide penalties for proceeding without securing the required *450 permits. Remedies for noncompliance with such permit requirements lie in the field of forfeitures and not in the area of abatement actions by individual citizens. [10] Nothing in the general statute, sec. 144.025, Stats., delegating to the DNR the responsibility to "protect, maintain and improve the quality and management of the waters of the state" in any way changes the permit requirements or penalties for noncompliance with such requirements as specifically provided for by statute. The demurrer of defendants to plaintiff's third cause of action was properly sustained by the trial court. CAUSE OF ACTION NO. 4. Count four of plaintiff's complaint notes that sec. 29.546, Stats., prohibits the unpermitted cutting, uprooting, severing, injuring, destroying or unauthorized sale of any American lotus or any other species of plant enumerated in that section, and provides that the penalty for violating such section is a fine of not more than $100 and/or imprisonment of not more than six months per offense.[14] In this cause of action plaintiff alleges that defendants have uprooted lotus plants and other species mentioned in the statute "and will do so in the future should the proposed roadway project be continued." While the complaint alleges on information and belief that American lotus and trailing arbutus plants "exist in and close to the area of the proposed roadway," it is difficult to see this statute as stopping a highway construction crew whenever it encounters a lotus or arbutus flower. If that were true, planting a lonely lotus flower in the pathway of a proposed highway would effectively force its relocation to a lotus-free route. *451 [11, 12] We need not, however, determine what happens when a road construction crew encounters a lotus flower. This statute is a criminal statute providing fine or imprisonment for its violation. Criminal statutes are to be strictly construed,[15] and the criminal sanctions set forth in the statute are the only penalties provided for its violation. Possible future violation of this statute under these circumstances is not a sound basis for seeking and securing injunctive relief against a proposed construction of a county highway. The trial court's sustaining of defendant's demurrer of count four of plaintiff's complaint is affirmed. CAUSE OF ACTION NO. 5. As and for a fifth cause of action, plaintiff sets forth provisions in the Wisconsin Constitution which have "impressed all navigable waters in Wisconsin with a trust in favor of the public which requires that all such waters remain free for navigation, hunting and fishing, and for all other forms of recreation," and alleges that the highway relocation project "violates the defendants' responsibilities under said trust." However this count sets forth the fact that the Wisconsin legislature has "delegated to the levels of state government the fiduciary responsibility of administering, maintaining, and protecting the waters of this state." [13, 14] Therefore we look to the statutes enacted pursuant to the public trust doctrine to determine if a cause of action exists. Our court has clearly held that the public trust doctrine in this state does not per se provide an affirmative cause of action in addition to those causes of action recognized by the state.[16] Rather, "[t]he public trust *452 doctrine merely establishes standing for the state, or any person suing in the name of the state for the purpose of vindicating the public trust, to assert a cause of action recognized by the existing law of Wisconsin."[17] [15, 16] Plaintiff has alleged, generally, a violation of the public trust doctrine by defendants, but, in this cause of action, alleges no violation of any statute enacted pursuant to such doctrine. The trial court in sustaining the demurrer to this fifth count, held it to be speculative and premature. We would add that a general allegation of violation of the public trust doctrine, in and by itself without more, does not state a cause of action. The sustaining of the demurrer to this cause of action is affirmed. CAUSE OF ACTION NO. 6. The sixth cause of action in plaintiff's complaint alleges that defendants "have proceeded to condemn a strip of land across plaintiff's land for the purpose of implementing said relocation project," but have failed to comply with the procedures mandated by sec. 32.05, Stats., requiring certain actions to be taken by condemnors in condemnation proceedings.[18] Specifically, plaintiff claims that a "jurisdictional offer" was sent to her by defendants, and requirements flowing therefrom have not been complied with by defendants. The precise issue involved concerns the nature of certain documents appended to the complaint and designated therein as Exhibits A-1 through A-6. Review of these documents indicates that defendants referred to them at all times in their cover letter as a "right of way appraisal."[19] The three pages of standard *453 printed forms consist of a first page which is entitled RIGHT OF WAY APPRAISAL, a second page in which the paragraphs do not follow the same numbering sequence established on the first page, and a third page which is also entitled RIGHT OF WAY APPRAISAL. Defendants' contention is that these pages constitute, not a jurisdictional offer, but a right-of-way appraisal, with the second page inadvertently consisting of one page of a jurisdictional offer. In support of this contention defendants have submitted three affidavits—one from defendant highway commissioner, another from the chairman of the county highway committee, and the third from the highway department employee who mailed the form to plaintiff. These all state that the second page was inserted by mistake between the first and third pages of a right-of-way appraisal form, and that the mailing was intended to be a right-of-way proposal, not a jurisdictional offer. Plaintiff responded with an affidavit, repeating the allegations of the complaint but not challenging the claim of mistake made or purpose intended. Our court has prescribed a precise methodology for the aid of trial courts in determining whether the case then before them is an appropriate one for disposition by summary judgment.[20] We now apply the applicable portion of such prescribed step-by-step procedure to the case before us. Since a cause of action has been pleaded and a factual issue as to the nature of a particular document presented, the trial court is required to examine "the moving party's (defendant's) affidavits ... to determine whether a prima facie defense has been established."[21] *454 [17] Then, if the moving party has made a prima facie case for summary judgment, the trial court examines "the opposing party's (plaintiff's) affidavit and other proof to determine whether there exists disputed material facts, or undisputed material facts from which reasonable alternative inferences can be drawn, sufficient to entitle the opposing party to a trial."[22] This is the methodology evidently followed by the trial court here and to be followed by this court on review. [18] Here we have the sworn testimony of three county officials that an improper second page was included in a three-page form by mistake—i.e., the jurisdictional offer page inadvertently inserted into the right-of-way appraisal form. The plaintiff's counter-affidavit does no more than repeat the allegations of her complaint. It is thus clear the trial court was entitled to find no material issue of fact or possibility that reasonable alternative inferences could be drawn. Accordingly, the trial court was entitled to enter summary judgment for defendants as to this sixth cause of action. Its so doing is affirmed. CAUSE OF ACTION NO. 7. The seventh and final count in plaintiff's complaint alleges that defendants ordered a survey of the proposed relocation roadway and that under color of that order surveyors trespassed on plaintiff's land. Plaintiff seeks damages for such trespass in the amount of $5,000. It is undisputed that defendants' agents entered upon plaintiff's land for the purpose of performing survey and appraisal work preparatory to the planning and construction of the highway. Without reaching the issue raised as to the right of a county to cause a survey to be made when necessary to *455 aid in the construction of a highway,[23] we agree with the trial court this is not a presently actionable claim. This is because plaintiff has failed to allege or comply with sec. 895.43, Stats., requiring notice in tort actions against governmental subdivisions and officers[24] and with sec. 59.76, Stats., requiring presentation of a claim for money damages to a county board prior to instituting court action.[25] [19] Where a party plaintiff brought suit against the city of Whitewater, e.g., without having complied with either *456 the notice of claim or filing of claim statutes, this court held: "Therefore, in order for plaintiff to have successfully defeated the city's motion for summary judgment, it was necessary that he either have complied with both sec. 895.43 (formerly sec. 331.43) and sec. 62.25, or have presented facts which raised a disputed factual issue with respect to such compliance."[26] Count seven of plaintiff's complaint does not allege compliance nor existence of a disputed factual issue with respect to such compliance with the requirements of secs. 895.43 or 59.76, Stats., so the trial court's granting of summary judgment to defendants as to the seventh cause of action pleaded must be affirmed. The seven-stop journey is thus completed. We affirm the trial court's sustaining of defendants' demurrers to the first five counts of plaintiff's complaint, and affirm the trial court's granting of summary judgment to defendants as to the sixth and seventh causes of action pleaded in the complaint. By the Court.—Judgment and order affirmed, with costs to defendants. NOTES [†] Motion for rehearing denied, with costs, on July 1, 1977. [1] "(2) All agencies of the state shall: "(c) Include in every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the human environment, a detailed statement, substantially following the guidelines issued by the United States council on environmental quality under P.L. 91-190, 42 U.S.C. 4331, by the responsible official on: "1. The environmental impact of the proposed action; "2. Any adverse environmental effects which cannot be avoided should the proposal be implemented; "3. Alternatives to the proposed action; "4. The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and "5. Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented; "6. Such statement shall also contain details of the beneficial aspects of the proposed project, both short term and long term, and the economic advantages and disadvantages of the proposal." [2] Ch. 15, Stats., entitled STRUCTURE OF THE EXECUTIVE BRANCH, dealing with the "constitutional offices, administrative departments and independent agencies which comprise the executive branch of Wisconsin State government." (Sec. 15.02, Stats.) [3] In Madison Metropolitan Sewerage Dist. v. DNR, 63 Wis.2d 175, 179, 216 N.W.2d 533 (1974), this court stated the test of ambiguity has been consistently reiterated: "`"... A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses."'" Citing Milwaukee Fire Fighters Asso. v. Milwaukee 50 Wis.2d 9, 13, 183 N.W.2d 18 (1971); Kindy v. Hayes, 44 Wis.2d 301, 171 N.W.2d 324 (1969). [4] Sec. 13.10(2) (a), Stats. [Emphasis supplied.] [5] Sec. 92.03(7), Stats. [6] Milwaukee v. WERC, 71 Wis.2d 709, 715, 239 N.W.2d 63 (1976). See also: Libby, McNeill & Libby v. Wisconsin E. R. Comm., 48 Wis.2d 272, 179 N.W.2d 805 (1970). [7] Id. at 714. Amans v. H&SS Department, 70 Wis.2d 892, 236 N.W.2d 279 (1975). [8] Id. at 714. Cook v. Industrial Comm., 31 Wis.2d 232, 240, 142 N.W.2d 827 (1966). [9] Id. at 715, citing Milwaukee Transformer Co. v. Industrial Comm., 22 Wis.2d 502, 510, 126 N.W.2d 6 (1964). [10] Id. at 716. [11] Executive Order No. 69, issued by Governor Patrick J. Lucey. [12] Guidelines for the Implementation of Wisconsin Environmental Policy Act, issued by Governor Patrick J. Lucey pursuant to Executive Order No. 69, relating to sec. 1.11, Stats. Question No. 3 in such guidelines asks "To what agencies does WEPA apply?" and the stated answer is: "WEPA applies to `all agencies of the state.' It is assumed that the agencies referred to include the line agencies (including attached boards and commissions) as described in Chapter 15 of the Wisconsin Statutes." [13] Plaintiff's complaint sets forth laws requiring permits from the department of natural resources for certain purposes, including: Secs. 30.10, 30.12, 30.15, 30.18, 30.19, 30.195 and 31.04, Stats. [14] See: Sec. 29.546, Stats., entitled Lotus and other wild flowers protected. [15] Omernik v. State, 64 Wis.2d 6, 11, 12, 218 N.W.2d 734 (1974). [16] State v. Deetz, 66 Wis.2d 1, 13, 224 N.W.2d 407 (1974). [17] Id. at 13. [18] See: Secs. 32.04 and 32.05, Stats. [19] If the challenged documents constitute a right-of-way appraisal, the procedural requirements of sec. 32.05, Stats., are not triggered. [20] See: Peninsular Carpets, Inc. v. Bradley Homes, Inc., 58 Wis. 2d 405, 410, 206 N.W.2d 408 (1973), citing Marshall v. Miles, 54 Wis.2d 155, 160, 161, 194 N.W.2d 630 (1972). [21] Id. at 410, 411. [22] Id. at 411. [23] See: Secs. 80.39 (3), 83.015 (2) and 83.025, Stats. [24] Sec. 895.43 (1), Stats., providing: "No action founded on tort, except as provided in s. 345.05, shall be maintained against any ... governmental subdivision or agency thereof nor against any officer, official, agent or employe of such corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment unless within 120 days after the happening of the event causing the injury or damage or death complained of, written notice of the time, place and circumstances of the injury ... is served on such ... governmental subdivision or agency and on the officer, official, agent or employe under s. 262.06. Failure to give the requisite notice shall not bar action on the claim if the ... subdivision or agency had actual notice of the damage or injury and the injured party shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial...." [25] Sec. 59.76 (1), Stats., providing: "(1) No action shall be brought or maintained against a county upon any account, demand or cause of action when the only relief demandable is a judgment for money, except upon a county order, unless the county board shall consent and agree to the institution of such action, or unless such claim shall have been duly presented to such board and they shall have failed to act upon the same within the time fixed by law. No action shall be brought upon any county order until the expiration of thirty days after a demand for the payment thereof has been made; and if an action is brought without such demand and the defendant fails to appear and no proof of such demand is made, the court or the clerk thereof shall not permit judgment to be entered, and if judgment is entered it shall be absolutely void." [26] Pattermann v. Whitewater, 32 Wis.2d 350, 358, 145 N.W.2d 705 (1966).

Case: 15-10838 Date Filed: 05/03/2016 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-10838 ________________________ D.C. 5:10-cv-00583-WTH-TBS USA, ex rel., STATE OF FLORIDA, ex rel., Plaintiffs, CHARLES ORTOLANO, Plaintiff-Appellant, versus AMIN RADIOLOGY, d.b.a. Citrus Diagnostic Center, d.b.a. Dunnellon Open MRI, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (May 3, 2016) Before WILLIAM PRYOR, ANDERSON and PARKER,* Circuit Judges. __________ *Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit, sitting by designation.  Case: 15-10838 Date Filed: 05/03/2016 Page: 2 of 3 PER CURIAM: After oral argument, and careful review of the briefs and record, we conclude that the judgment of the district court should be affirmed. The particular arguments of plaintiff-appellant on appeal are not persuasive for the reasons fully explored at oral argument. We agree with the district court that the only claim that appellant has preserved for appeal relates to the defendant’s use of general radiographers for a partial role in the procedure, rather than using licensed nuclear medicine technologists for every aspect of the procedure. Appellant has expressly disavowed any reliance on an implied certification theory; thus, any claim based on that theory is deemed abandoned. We also reject appellant’s arguments based upon the factually false theory. The claims that defendant submitted to the government agencies for payment were simply not factually false, because there was no representation, either express or implied, that the services had been performed exclusively by licensed nuclear medicine technologists. Moreover, even if Florida requires every aspect of the procedure to be handled by licensed nuclear medicine technologists (which we assume arguendo, but expressly do not decide), such requirement is not a prerequisite for “reasonable and necessary” status, and thus not a prerequisite for 2  Case: 15-10838 Date Filed: 05/03/2016 Page: 3 of 3 reimbursability. 1 Accordingly, the submission of defendant’s claims made no representation with respect to licensure, and the claims were not false. The judgment of the district court is AFFIRMED. 1 Although 42 C.F.R. §410.32(b) does make “the appropriate level of supervision by a physician” a prerequisite for reasonable and necessary status, we agree with the district court that, especially in light of 42 C.F.R. §410.33, §410.32 does not require licensure. Similarly, although the Medicare Program Integrity Manual may impose as a prerequisite that the service be provided by “qualified personnel,” especially in light of the strong indication from 42 C.F.R. §§410.32 and 410.33 that no license is required, we decline appellant’s invitation to import Florida’s licensing provisions into the definition of “qualified.” 3 

32 So.3d 628 (2009) ALBRITTON WILLIAMS, INC. v. CGM SERVICES, INC. Nos. 2D08-4603, 2D08-6277. District Court of Appeal of Florida, Second District. September 4, 2009. Decision Without Published Opinion Affirmed.

667 F.2d 1029 U. S.v.Newkirk 80-5223, 80-5251 UNITED STATES COURT OF APPEALS Sixth Circuit 10/5/81 1 M.D.Tenn. AFFIRMED

707 F.2d 175 115 L.R.R.M. (BNA) 4260 Carolyn CONLEY, et al., Plaintiffs-Appellees,v.BOARD OF TRUSTEES OF GRENADA COUNTY HOSPITAL, et al.,Defendants-Appellants. No. 82-4018. United States Court of Appeals,Fifth Circuit. June 13, 1983. Paul O. Miller, III, Judith J. Johnson, Jackson, Miss., Marc A. Biggers, Greenwood, Miss., for defendants-appellants. Leon Johnson, R. Stewart Guernsey, Grenada, Miss., for plaintiffs-appellees. Appeal from the United States District Court for the Northern District of Mississippi. Before RANDALL and HIGGINBOTHAM, Circuit Judges, and McDONALD*, District Judge. PATRICK E. HIGGINBOTHAM, Circuit Judge: 1 Five former employees of Grenada County Hospital in Mississippi brought this Sec. 1983 action on behalf of themselves and a class of similarly situated persons against the hospital's board of trustees and other officers alleging that adverse employment actions taken against them violated their due process rights. Before a class certification hearing was held, defendants moved for summary judgment claiming that the employees had no property interest in continued employment sufficient to invoke procedural due process protection. The district court denied this motion and instead granted summary judgment in favor of three employees on the ground that they were deprived of a protected property interest without due process. This court granted the hospital's application for leave to appeal from the interlocutory order in order to examine its procedural and substantive propriety. We affirm the grant of summary judgment on the property interest issue. We also affirm the grant of summary judgment on the due process issue as to two of the plaintiffs but reverse as to the third. 2 Carolyn Conley, Sarah Hendrix, Bessie Trotter, Joan Williams, and Chris Mayhan are former employees of the Grenada County Hospital. All were terminated but Conley, who resigned after being placed on probation. On June 8, 1981, the five employees on behalf of themselves and a described class under Fed.R.Civ.P. 23(b)(2) brought a Sec. 1983 suit against the hospital's board of trustees and other officers alleging that the hospital had disciplined or terminated them without due process. The hospital then moved to dismiss under Rule 12(b)(6), contending that the employees had no property interest in continued employment sufficient to trigger due process. 3 The hospital also filed the affidavit of Executive Director Fletcher Crawford, thus converting the motion to dismiss into a motion for summary judgment. In his affidavit, Crawford stated that Conley was placed on probation for inadequate work performance before she resigned and that the other plaintiffs were terminated for such reasons as insubordination, poor work performance, interference with physician-patient relationships, absenteeism, or patient complaints. He also stated that none of the plaintiffs had a written or oral contract specifying the duration of their employment. Plaintiffs responded with a memorandum of law, contending that the hospital's "employee guidebook" created a property interest and that the grievance procedures described in the guidebook had not been followed. Conley, Hendrix, and Mayhan also filed affidavits in which they described the inadequacies of the hospital's pretermination proceedings. Though not mentioned by the district court, the attorneys for Conley and Hendrix also filed affidavits describing the deficiencies of the hospital's hearings. Trotter's attorney also filed an affidavit stating that her request for a hearing was denied. In rebuttal, the hospital argued that the grievance procedures set forth in the guidebook did not mandate a hearing and thus created no property interest. It also filed affidavits contesting several allegations by Conley and Mayhan. The hospital did not, however, respond to any assertions regarding the inadequacy of its pretermination hearings. 4 The court denied the hospital's motion for summary judgment. It instead sua sponte entered summary judgment for plaintiffs on the property interest question, reasoning that the hospital's employee guidebook "create[d] on behalf of its employees a legitimate claim of entitlement to their employment status." The court thus did not consider plaintiffs' claim that they had been deprived of a liberty interest. In addition, the court granted summary judgment to Conley, Hendrix, and Mayhan on the issue of the requisite due process because "it is undisputed that [they] were not notified of the specific charges against them in advance of adverse employment action." The court reserved judgment on the remaining plaintiffs' claims until they could file affidavits and the hospital could respond. It also reserved judgment on an award of damages. The hospital moved to reconsider under Rule 59(e) on the grounds that the court's finding of a property interest was erroneous. The court denied the motion in a second memorandum opinion but certified the order for an interlocutory appeal. The hospital timely applied1 for leave to appeal, challenging the procedural and substantive propriety of the summary judgment. This court granted leave to appeal. 5 Summary Judgment on the Property Interest Question 6 The hospital contends that the sua sponte summary judgment ruling in favor of the plaintiffs on the property interest issue was procedurally erroneous because plaintiffs filed no cross-motion. We note initially that the hospital could have sought direct appeal from this judgment but instead first filed a Rule 59(e) motion for reconsideration. It did not, however, challenge the procedural propriety of the summary judgment ruling in this Rule 59(e) motion. The district court expressly noted this failure in its second opinion: "Defendants do not challenge, as a procedural matter, our entry of judgment in favor of plaintiffs who had not moved for summary judgment." As a general principle of appellate review, we refuse to consider issues not raised below. See Delesdernier v. Porterie, 666 F.2d 116, 124-25 (5th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 86, 74 L.Ed.2d 81 (1982). This refusal is particularly appropriate when, as here, a party requests the trial court to reconsider the judgment but conspicuously omits a contention of procedural irregularity that the court could have corrected immediately. See Fackelman v. Bell, 564 F.2d 734, 736 n. 1 (5th Cir.1977). Nevertheless, if the issue is a purely legal one and the asserted error is so obvious that the failure to consider it would result in a miscarriage of justice, we have proceeded. See Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1030-31 (5th Cir.1982). 7 We find here that neither prong of this "plain error" exception has been met. First, the question whether summary judgment may be granted for the nonmoving party is thoroughly factridden. It depends on whether the original movant has had an adequate opportunity to show that there is no genuine issue of material fact or whether all material facts are already before the reviewing court. See 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2720 (1983). Moreover, the merit of the hospital's omitted claim is not so plain or obvious that our failure to consider it would result in manifest injustice. A determination of the existence of a property interest turns on a similar set of facts as a determination of the non-existence of a property interest. We recognize that asserting the absence of a property interest as a matter of law on a given Rule 56 record is not a concession that its presence is in logic an obverse answer. Yet, the hospital stated in a reply memorandum that no discovery was needed before determination of the property interest issue. Moreover, the hospital at no time suggested to the district court in its extensive attack upon his decision that fact issues could be shown. At oral argument the hospital nonetheless suggested that the "reasonable employee expectation" test employed by the district court necessitated discovery regarding employees' perception of the guidebook, without which the summary judgment was premature. We disagree. As will be seen, the question of property interest in this case proves to be the legal one of interpreting the law of Mississippi as expressed in the rules of the hospital. Accordingly, we decline to review the procedural propriety of the sua sponte grant of summary judgment.2 8 Although the hospital failed to raise the procedural propriety of the summary judgment ruling before the district court, it did there challenge the substantive propriety of the ruling. In reviewing the court's grant of summary judgment, we must consider the evidence in a light most favorable to the hospital and determine whether there were no genuine factual disputes and whether the plaintiffs were entitled to judgment as a matter of law. See Rule 56(c); Daly v. Sprague, 675 F.2d 716, 724 n. 10 (5th Cir.1982). The district court's ruling thus can be sustained only if plaintiffs demonstrated no material issue of fact regarding their property interest in continued employment at the hospital. We conclude that the trial court was correct in its decision that plaintiffs enjoyed the requisite property interest. 9 A protected property interest in employment exists only when the employee has "a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The source of such a claim can be a state statute, a local ordinance, a rule, or a mutually explicit understanding. Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); White v. Mississippi State Oil and Gas Board, 650 F.2d 540, 541 (5th Cir.1981). Whatever the source, however, "the sufficiency of the claim of entitlement must be decided by reference to state law." Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). Accordingly, the issue here is whether, under Mississippi law, the plaintiffs had the requisite express or implied right to continued employment at the hospital. In this inquiry we are appropriately deferential to the construction of Mississippi law by the district court, a veteran of its bar and bench. See Bishop v. Wood, 426 U.S. at 345, 96 S.Ct. at 2077. 10 In Mississippi, an employee employed for a permanent or indefinite term may be discharged at the will of his employer provided the employee has furnished no consideration in addition to the services incident to his employment. See Kelly v. Mississippi Valley Gas Co., 397 So.2d 874 (Miss.1981); Rape v. Mobile & O.R. Co., 136 Miss. 38, 100 So. 585 (1924). Mississippi also recognizes that "where the removal can only be for cause, the [employee] has a right to notice and an opportunity to disprove the charges." In re Bishop, 211 Miss. 518, 52 So.2d 18, 20 (1951). Many Mississippi statutes governing the employment practices of public employers expressly prescribe either a "terminable at will" or a "for cause" standard.3 The statute governing county hospitals including Grenada County Hospital is unique, however, because it is indisputably neutral. Under Miss.Code Ann. Sec. 41-13-35, the board of trustees of the hospital is authorized "to promulgate and adopt suitable staff and hospital rules and regulations [and] to employ such personnel as may be necessary to properly maintain and operate such hospitals...." The "employee guidebook" adopted by the hospital here exemplifies such a rule or regulation. It follows that the guidebook is the prime candidate as the source of a legitimate claim of entitlement if it limits the hospital's right to terminate an employee to specified causes or circumstances. 11 Nevertheless, the hospital denies that the guidebook expresses the law of Mississippi in the sense of Bishop v. Wood, urging that it is only a personnel manual. Citing several Mississippi cases in which an employer's power of removal was restricted by statute, the hospital suggests that an employee's right to continued employment can arise only under a statute or an enforceable employment contract. This argument misses the mark. All the cases cited by the hospital involved a determination of whether a statute permitted termination at will or limited removal for cause only. See, e.g., In re Bishop, 211 Miss. 518, 52 So.2d 18 (1952). None address a situation where, as here, the applicable statute grants authority to a public employer to make its own choice. The Mississippi legislature made no choice between terminable at will and for cause for its county hospital employees, leaving to its presumably specialized boards the task of adopting appropriate policies. Adopted pursuant to authority expressly granted by the legislature, the hospital's rules thus express state policy. 12 We now review the hospital's guidebook to determine whether it creates a legitimate claim of entitlement to continued employment. The guidebook is a fifty-five page document describing "the conditions of employment including policies, practices, responsibilities, rules of conduct, and benefits for the employees of Grenada County Hospital." Under the heading "Job Security," the guidebook assures employees that "[f]or those who measure up to the special demands of hospital employment, there need be no fear of lay-off." It nonetheless warns employees that they may be terminated "because of unsatisfactory service, failure to cooperate with department heads or repeated breaking of hospital rules or the violations justifying termination." The guidebook then lists thirty-six violations that may warrant dismissal. After dismissal, an employee may request a "termination interview." A different section of the guidebook states that "[o]ne of the purposes of this [exit] interview is to make sure that the reason for the employee's termination is not based on some misunderstanding or condition which could have been remedied by either the hospital or the worker." Though the hospital construes this section as applying only to employees who have resigned, the section expressly refers to "terminating employees." Finally, the hospital is afforded the right to "modify or amend" these policies after providing advance notice of any changes to the employees. 13 We agree with the district court that these regulations fairly read assure continued employment absent noncompliance with a specified reason for termination. This case is similar to Glenn v. Newman, 614 F.2d 467, 471 (5th Cir.1980), in which we held that a personnel regulation listing a number of violations warranting dismissal and describing disciplinary procedures was sufficient under Georgia law to create a property interest in continued employment. Like the regulation in Newman, the guidebook here not only permits, but also purports to limit, discharges to those based on the specified causes. Although scattered sections of the guidebook specify other reasons for dismissal that are not among the thirty-six, there is no indication that the guidebook contemplates discharge for some non-specified reason.4 In this respect, the guidebook guarantees that dismissal will result only from noncompliance with the specified rules of conduct. It is "meant to be analogous to allowing termination for 'cause'." Newman, 614 F.2d at 471-72. 14 The hospital nonetheless argues that this case is "virtually indistinguishable" from United Steelworkers v. University of Alabama, 599 F.2d 56 (5th Cir.1979) and McMillian v. City of Hazlehurst, 620 F.2d 484 (5th Cir.1980), in which we found no property interests in public jobs. We disagree. In Steelworkers, we held that Alabama common law permitting termination at will of permanent employees had not been altered by the University's personnel handbook. That handbook stated that "[j]ust cause for dismissal is not limited to those violations that follow as there may be other offenses committed that may warrant this action depending on a number of factors." It also provided the University with exclusive discretion to dismiss and discipline employees. Indeed, this provision led the panel to observe "We can hardly think of clearer words which could be used by management to reserve the right to hire and fire and discipline employees in the exercise of their discretion." 599 F.2d at 61. The hospital argues that like the handbook in Steelworkers, the guidebook here cannot create a property interest because as in Alabama it also is to be read against a background of a common law rule that employees hired for an indefinite term are terminable at will. This argument ignores the differences in the two handbooks and ignores the circumstance that Mississippi law was expressed by the guidebook's description. As we have observed, the Mississippi legislature has taken three tacks: it remains silent, it chooses between termination at will and for cause, or it delegates the choice to certain public employers. Here it delegated and the hospital chose to allow terminations for cause only. 15 The hospital's reliance on McMillian is equally misplaced. We there rejected plaintiff's contention that an ordinance permitting discharge for a violation of one of fifteen rules of conduct created a property interest. We held: 16 The language of the [ordinance] does not purport to limit the municipality's employment rights or abrogate the application of Miss.Code Ann. Sec. 21-3-5 [, which permits the municipality] to discharge police employees without cause. The ordinance nowhere undertakes to make its provisions the exclusive basis for dealing with Hazlehurst police officers. It would be entirely unreasonable to imply such a limitation from the fact that specific rules of conduct were made enforceable by reprimand, suspension or dismissal. 17 620 F.2d at 485. Relying on this language, the hospital contends that the guidebook cannot be deemed the source of a property interest. McMillian, however, does not control here. Central to our result there was the presence of a statute permitting terminations without cause.5 The ordinance in which the employees relied was not explicit enough concerning conduct and disciplinary procedures to override that statute. Thus, we concluded that the ordinance created no property interest. Unlike the statute in McMillian, however, Sec. 41-13-35 does not choose for the hospital between a policy of terminable at will or for cause. This statute permits the hospital to make its own decision. We find that pursuant to the legislative grant the hospital did so. The teaching of McMillian does not require a different conclusion. 18 In sum, we find no factual dispute but that the hospital's guidebook created a legitimate claim of entitlement to continued employment. The district court correctly granted summary judgment in favor of plaintiffs on the property interest issue. 19 Summary Judgment on the Procedural Due Process Issue 20 Having granted summary judgment on the property interest issue, the district court also granted summary judgment in favor of Conley, Hendrix, and Mayhan on the procedural due process issue even though neither side had so moved. The hospital contends that this result was procedurally erroneous because it had no opportunity to dispute the facts alleged by plaintiffs concerning the adequacy of the pretermination procedures. Nevertheless, the hospital did not raise this argument in its Rule 59(e) motion. Assuming that the question whether a court may sua sponte grant summary judgment implicates purely legal issues, see Capital Films Corp. v. Charles Fries Productions, 628 F.2d 387, 390-91 (5th Cir.1980), the merit of the hospital's omitted argument is not so plain or obvious that our failure to consider it would result in manifest injustice. While we disagree with plaintiffs' argument that the hospital admitted the inadequacy of its due process procedures by its assertion that no discovery was necessary and by not responding to plaintiffs' allegations of inadequate procedures, we note that the hospital has at no time suggested to us that fact issues on this matter can be shown. As such, we decline to construe any error as "plain" and thus do not reach the hospital's procedural argument. 21 We nevertheless must determine whether the court's grant of summary judgment on this issue was substantively correct. To establish denial of due process, a plaintiff must show that before termination he did not receive written notice of the reasons for termination and an effective opportunity to rebut those reasons. See Thurston v. Dekle, 531 F.2d 1264, 1273 (5th Cir.1976), vacated on other grounds, 438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978). Effective rebuttal means that the employee must be given an opportunity to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision. Id. Summary judgment for the plaintiffs on the procedural due process issue is thus inappropriate unless we can conclude from the summary judgment record that no factual dispute remains as to the unavailability or constitutional inadequacy of any due process proceedings. 22 In granting summary judgment on the due process issue, the district court relied on uncontroverted pleadings and affidavits of Conley, Hendrix, Mayhan, and their attorneys. Viewing this evidence and its reasonable inferences in a light most favorable to the hospital, we conclude that the summary judgment ruling in favor of Hendrix and Mayhan was correct but that the ruling in favor of Conley must be reversed. As the district court noted, the summary judgment evidence of Hendrix and Mayhan demonstrates that neither received notice of the reasons for termination or an opportunity to rebut them. In contrast, Conley's evidence is insufficient to sustain her Rule 56 burden. Conley's pleadings and affidavits claim that she was suspended indefinitely before she resigned. While the Supreme Court has held that suspensions may trigger due process protection, see Goss v. Lopez, 419 U.S. 565, 576, 95 S.Ct. 729, 737, 42 L.Ed.2d 725 (1975), it also has emphasized "that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved." Id. at 579, 95 S.Ct. at 738. The court below did not balance Conley's evidence on this scale; instead it analyzed Conley's claim of inadequate due process as if she actually had been terminated from employment. Conley's argument that she was in reality "constructively terminated" reinforces our conclusion that a fact issue remains as to what process was due. We therefore reverse the summary judgment in favor of Conley on the due process issue and remand so that both sides may further develop the facts. 23 Even though we affirm the summary judgment in favor of Hendrix and Mayhan, the district court on remand must yet determine the damages to which they are entitled for the procedural due process violation. We caution that an award of damages requires proof of actual injury. Moreover, if it be proved that plaintiffs would have been terminated even if proper procedures had been used, that proof of actual injury must flow from the loss of the procedural rights. See Carey v. Piphus, 435 U.S. 247, 259-264, 98 S.Ct. 1042, 1050-1052, 55 L.Ed.2d 252 (1978). 24 In conclusion, the summary judgment for plaintiffs on the property interest issue is AFFIRMED; the summary judgment on the issue of requisite due process is AFFIRMED as to Hendrix and Mayhan but REVERSED as to Conley and the case is REMANDED for further proceedings consistent with this opinion. 25 AFFIRMED IN PART; REVERSED IN PART; REMANDED. * District Judge of the Southern District of Texas, sitting by designation 1 Contrary to plaintiffs' argument, the hospital's application for leave to appeal was filed within the requisite ten days after entry of the court's order denying the hospital's motion for reconsideration on November 4, 1981 2 Even if we were to agree that this issue is before us, we nonetheless would conclude that the entry of summary judgment on the property interest question without a cross-motion by plaintiffs was not procedurally erroneous. We recognize that the sua sponte grant of summary judgment is a dangerous practice and has resulted in reversal. See Capital Films Corp. v. Charles Fries Productions, 628 F.2d 387 (5th Cir.1980). These dangers, however, were not present here. One concern is that Rule 56, by its terms, contemplates the granting of summary judgment only upon motion. Yet, the hospital so moved and the plaintiffs were not required to make a formal cross-motion as a prerequisite to entry of summary judgment in their favor. See 10A C. Wright, A. Miller and M. Kane, Federal Practice and Procedure Sec. 2720 (1983). A second concern is that a party must have a fair opportunity to develop the record in opposition to requested summary judgment. See E.C. Ernst, Inc. v. General Motors Corp., 537 F.2d 105 (5th Cir.1976). As we have stated, the hospital did have this opportunity and its failure to suggest to the trial court that it did not belies its present argument to the contrary 3 Compare Miss.Code Ann. Sec. 21-3-5 (allowing municipalities to discharge police employees without cause) with Miss.Code Ann. Sec. 41-13-5 (allowing joint municipal-county hospitals to discharge employees for inefficiency "or for any other good cause.") 4 Cf. Ogletree v. Chester, 682 F.2d 1366, 1371-72 n. 8 (11th Cir.1982) (holding that scattered statements throughout regulations specifying certain conduct that may result in dismissal did not create a property interest because they did not purport to exclude other reasons for dismissal) 5 Indeed, the court distinguished Glenn on the basis "of the absence [in Glenn ] of a state law provision similar to Miss.Code Ann. Sec. 21-3-5 (1972) that allowed the municipal employee to be terminated without cause." 620 F.2d at 486 n. 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4655 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC RICHARD WATTS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Margaret B. Seymour, District Judge. (3:06-cr-00452-MBS-12) Submitted: January 15, 2009 Decided: January 22, 2009 Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Langdon D. Long, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Stanley D. Ragsdale, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Eric Richard Watts appeals his sentence on his conviction of conspiracy to manufacture, possess with intent to distribute, and distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 (2006). The sole issue on appeal is whether there exists an improper sentencing discrepancy between the district court’s oral pronouncement and the criminal judgment such that Watts’ sentence should be vacated and the case remanded for resentencing. We find no error. Review of the record reveals that the district court granted Watts a three-level downward departure, based on the Government’s motion, as well as a downward variance of twenty- one months from the bottom of a properly calculated advisory guideline range, and imposed a sentence of forty-two months’ imprisonment. In its oral pronouncement, the district court imposed the forty-two month sentence, stating that the twenty- one month variance was based on Watts’ motion alleging extraordinary rehabilitation, and a credit for time Watts previously had served in state custody. While the written order of judgment does not reflect the district court’s oral pronouncement regarding the state sentence credit, the sentence reflected on the judgment order reflects the same orally- 2 pronounced sentence of forty-two months’ imprisonment. Moreover, the accompanying Statement of Reasons, issued in conjunction with the criminal judgment, clearly states that the twenty-one month variance was based upon previous time Watts served in state custody. Accordingly, we find no error in the judgment order or any contradiction between the oral pronouncement and the criminal judgment regarding the state sentence such that remand is necessary. We affirm Watts’ sentence. 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 3 

36 F.Supp.2d 666 (1999) Marybeth McCABE, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. No. 96-8245. United States District Court, E.D. Pennsylvania. January 13, 1999. *667 *668 Joseph M. Adams, Joseph M. Adams, P.C., Doylestown, PA, for plaintiff. Wayne A. Schaible, Earl L. Britt, Robert J. Williams, Britt, Hankins, Schaible, Moughan, Philadelphia, PA, for defendant. MEMORANDUM AND ORDER ANITA B. BRODY, District Judge. The plaintiff, Marybeth McCabe (McCabe), brought an action against her insurer, defendant State Farm Mutual Automobile Insurance Company (State Farm), for damages arising out of the alleged mishandling of an insurance claim. The parties have filed cross motions, State Farm for summary judgment and McCabe for partial summary judgment. I. Background On March 22, 1991, McCabe was injured in an automobile accident when her car was hit from the rear. As a result of the accident, she claims she suffers serious permanent injuries including a brachial plexus traction injury which requires ongoing medical treatment and physical therapy. She incurred medical expenses in excess of $18,000. As for the brachial plexus injury, McCabe was advised that she would need surgery which would expose her to potential paralysis. Besides medical expenses, McCabe claims a loss of approximately $25,000 from her law practice. At the time of the accident, McCabe was insured by State Farm. On December 22, 1992, the tortfeasor offered McCabe $92,755.39 to settle, which she accepted following State Farm's February 1993 approval of the offer. On December 30, 1992, McCabe's lawyer, Mona Shuben Picciotto, notified State Farm that McCabe would seek underinsured motorist benefits (UIM) under the terms of her insurance policy. In August of 1993, McCabe discharged her lawyer. On November 8, 1993, McCabe submitted medical documentation to State Farm regarding treatment for her injuries. On March 1, 1994, McCabe wrote to State Farm demanding the $100,000 policy limits pursuant to the UIM claim. In response to a request by State Farm, McCabe submitted additional medical records on July 20, 1994. On September 28, 1994, State Farm offered McCabe $3,000 to settle her claim. The following day, McCabe rejected the offer and demanded arbitration pursuant to the terms of the insurance policy. Following this demand, State Farm retained John F. Lewis as counsel to handle the arbitration and Mr. Lewis appointed William H. Pugh, V, Esq. as State Farm's arbitrator. On October 25, 1994, McCabe requested an extension of time to retain new counsel and to appoint an arbitrator. McCabe chose Joseph M. Adams as her attorney, who in turn appointed Carol A. Shelly, Esq. as McCabe's arbitrator. On June 14, 1995, both arbitrators agreed on the choice of Rae Boylan Thomas, Esq. as the neutral arbitrator. *669 Following McCabe's demand for arbitration, State Farm requested additional medical authorizations from McCabe, a statement under oath (SUO), and an independent medical examination (IME). In February 1995, McCabe forwarded the medical authorizations to Mr. Lewis, followed by the SUO in August 1995. Dr. Lawrence Kerson was chosen by Mr. Lewis to conduct the IME. The examination took place on September 8, 1995. On September 18, 1995, McCabe was examined by Dr. Robert Schwartzman, who indicated the potential for surgery to treat her injuries. In April 1996, both Dr. Kerson and Dr. Schwartzman submitted additional reports. Dr. Schwartzman continued to recommend surgery and Dr. Kerson advised against it. On April 10, 1996, Dr. Schwartzman was deposed. On May 17, 1996, State Farm made a second offer to McCabe in the sum of $25,000. On May 20, 1996, McCabe refused the offer, reiterating her demand for the policy limits. Dr. Kerson was deposed on May 23, 1996. Following his deposition, State Farm increased its offer to $30,000. The next day, McCabe refused this offer and again demanded the $100,000 policy limits. The arbitration hearing was held on May 30, 1996. On June 6, 1996, the arbitrators unanimously agreed to an award of $52,744.11. On July 1, 1996, State Farm paid this amount to McCabe. II. Legal Standard Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. When the moving party does not bear the burden of persuasion at trial, as here, its burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. Once the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party "may not rest upon the mere allegations or denials of the [nonmoving] party's pleading," id., but must support its response with affidavits, depositions, answers to interrogatories, or admissions on file. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.1990). To determine whether summary judgment is appropriate, I must determine whether any genuine issue of material fact exists. An issue is "material" only if the dispute "might affect the outcome of the suit under the governing law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Of course, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255, 106 S.Ct. 2505; see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992). Moreover, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505; see also Big Apple BMW, 974 F.2d at 1363. Thus, my inquiry at the summary judgment stage is only the "threshold inquiry of determining whether there is the need for a trial," that is, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter *670 of law." Anderson, 477 U.S. at 250-52, 106 S.Ct. 2505. III. Bad Faith McCabe brings her bad faith claim under 42 Pa.C.S.A. § 8371 which provides that: In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all the following actions: (1) award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%. (2) Award punitive damages against the insurer. (3) Assess court costs and attorney fees against the insurer. "[T]o recover under a claim for bad faith, the plaintiff must show that the defendant did not have a reasonable basis for denying benefits under the policy and that defendant knew or recklessly disregarded its lack of reasonable basis in denying the claim." Terletsky v. Prudential Property & Cas. Ins. Co., 437 Pa.Super. 108, 649 A.2d 680, 688 (1994); see also Klinger v. State Farm Mutual Auto. Ins. Co., 115 F.3d 230, 233 (3d Cir.1997). The plaintiff must establish bad faith by clear and convincing evidence. Polselli v. Nationwide Mut. Fire Ins. Co., 23 F.3d 747, 750 (3d Cir.1994). Since plaintiff's burden at trial is higher than preponderance of the evidence, plaintiff's burden in opposing summary judgment is also higher. Anderson, 477 U.S. at 254 ("... in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden."). Thus I must consider whether McCabe has come forward with sufficient facts to meet this substantive evidentiary burden. State Farm moves for summary judgment on the ground that there is no evidence that it acted unreasonably in refusing to pay UIM benefits to McCabe.[1] State Farm asserts that it acted reasonably in disputing the value of McCabe's UIM claim, in handling her claim, in negotiating a potential settlement, and in the arbitration process. State Farm puts forward several bases for initially refusing to pay the UIM policy limits. First, McCabe had been previously compensated by the tortfeasor in excess of her out of pocket costs and losses. (Exhs. C, E, Complaint at ¶¶ 11, 12).[2] Second, McCabe was still treating for injuries from a previous accident and the causative role of the two accidents was not specifically determinable. (Exh. K). Third, McCabe's injury claim was undercut by her work hours. (Exh. B, at 34). Fourth, McCabe's treating physicians produced differing reports, sometimes reporting normal findings with respect to her injuries. (Exhs. K, G, H, B, at 28-30). McCabe presents no evidence to show that State Farm acted unreasonably in disputing the value of the UIM claim. State Farm contends that it handled the UIM claim in a reasonable manner. Upon notification by McCabe in early 1993, State Farm began its claims process. (Exhs.D, E). Later in 1993, McCabe changed attorneys, which caused delays in the arbitration proceeding. (Exh. N). State Farm received complete medical authorization from McCabe in February 1995. (Exhs. P, B, at 110-13). Following additional delays sought by McCabe (Exh. B, at 169-71), State Farm took her SUO in August 1995. State Farm also notes that its request for the IME and use of the IME were proper under the insurance policy. (Exh. F, at 6). McCabe seeks to show that State Farm did not properly handle her claim. Specifically, McCabe focuses on State Farm's timeliness in processing her claim, the supposed animosity of one of State Farm's claims adjusters, and the use and method of the IME. *671 McCabe considers a two and a half month delay in the handling of her claim, caused by a switch in her claims representative from Thomas Hatch to Kim Gibbons, as evidence of State Farm's bad faith. (Exh. AB, at 35-36). However, both State Farm Claims Specialist Kim Gibbons and State Farm Superintendent Nadine Hamilton testified that the delay was caused by an internal reorganization. (Exhs. AB, at 26-27, AC at 21-22). McCabe provides no evidence to counter this testimony. This time delay alone does not create bad faith. See Quaciari v. Allstate Ins. Co., 998 F.Supp. 578, 583 (E.D.Pa.1998). McCabe complains that Kim Gibbons exhibited animosity toward her, making it impossible for State Farm to fairly handle her claim. This allegation misapprehends the bad faith claim, which requires an insured to demonstrate a lack of reasonable basis to an insurer's denial of benefits. The attitude of a lower level claims representative, who lacked the authority to make final decisions on the claim (Exh. AB, at 124-25) and who handled McCabe's claim for only a portion of the time (Exh. AB, at 123-24, Complaint at ¶¶ 23, 24), is not an element of this cause of action. McCabe has failed to show how this alleged dislike for her resulted in State Farm's denying her UIM benefits without a reasonable basis. McCabe attacks both Dr. Kerson who conducted the IME, and the use of the IME by State Farm. Since the policy specifically provides that the claimant shall "consent to be examined by physicians chosen and paid by [State Farm] as often as [State Farm] reasonably may require," (Exh. F, at 6), McCabe's complaints about the IME are baseless. McCabe claims that Dr. Kerson's failure to use a particular diagnostic test, coupled with Mr. Lewis's lack of inquiry about the non-use, reveals abuse of the IME by State Farm. Dr. Kerson, however, testified that he did not consider the test to be of any value for McCabe. (Exh. Z, at 35-36). Dr. Kerson also gave a complete explanation of the factors supporting his diagnosis. (Exh. Z, at 29). In Seidman v. Minnesota Mut. Life Ins. Co., 1997 WL 597608, at *3 (E.D.Pa.1997), the court held that an insured could dispute the adequacy of an examination, but, as a matter of law, it was not bad faith for an insurance company to rely upon the examination. McCabe has offered nothing to indicate why I should not follow this analysis. McCabe further contends that Dr. Kerson's representation by a member of Mr. Pugh's firm in a medical malpractice action, pending at the time of the arbitration, creates bias. This simultaneous representation is irrelevant because it is undisputed that Dr. Kerson did not know who the IME was for when he conducted it. (Exh. Z, at 6-9). Thus he did not know of either Mr. Pugh's involvement or State Farm's. In fact, Dr. Kerson had no contact with anyone at State Farm regarding the IME. (Exh. Z, at 49). More significantly, McCabe has put forward no evidence that Dr. Kerson's testimony was untruthful or misleading. The mere fact that his diagnosis differed from that of McCabe's medical expert, Dr. Schwartzman, (Exhs.Q, R, S), does not make it of questionable validity, especially as other physicians also differed from Dr. Schwartzman (Exh. K). McCabe fails to overcome State Farm's evidence that it acted reasonably in handling her UIM claim. State Farm asserts that it acted reasonably in settlement negotiations because each offer followed new information on McCabe's injuries. State Farm made an initial offer of $3,000 in September, 1994. (Exh. L). In response, McCabe rejected the offer demanded arbitration, and threatened a lawsuit. (Exh. M). Following receipt of McCabe's medical documentation, the SUO, the IME, and the taking of depositions for the arbitration, State Farm made a second offer of $25,000 on May 17, 1996, which was rejected by McCabe who again demanded the $100,000 policy limit. (Exh. T). Finally, after additional testimony was received, State Farm increased its offer to $30,000 on May 23, 1996. (Exh. U). This offer was also rejected by McCabe, who reiterated her demand for the policy limits. (Exh. U). McCabe alleges that State Farm's final offer unreasonably failed to reflect the valuation that its outside counsel placed upon the *672 claim. McCabe asserts that Mr. Lewis valued the claim at $50,000 to $60,000, based upon the testimony of State Farm Claims Specialist Kim Gibbons (Exh. AB, at 123). However, both Mr. Lewis and State Farm Superintendent Nadine Hamilton testified to the contrary. According to Ms. Hamilton, Mr. Lewis considered that amount to be a potential maximum award. (Exh AC, at 62-64). Mr. Lewis stated that the $50,000 to $60,000 range was an upside potential verdict. (Exh Y, at 42). The $30,000 figure was a compromise between the perceived maximum and minimum arbitration awards. (Exh AC, at 64-65). McCabe has mischaracterized the testimony and thus has failed to show that State Farm acted unreasonably with respect to the settlement negotiations. State Farm asserts that it appropriately relied upon the arbitration hearing to resolve the UIM claim. McCabe alleges that the arbitration process was tainted, making State Farm's reliance upon the arbitration award bad faith. The insurance policy provided for arbitration to resolve the UIM claim. (Exh. F, at 17). Ms. Shelly, McCabe's chosen arbitrator, in conjunction with State Farm's arbitrator selected the neutral arbitrator, Rae Boylan Thomas. (Exh. O). The three arbitrators unanimously awarded McCabe $52,744.11. (Exh. V). McCabe did not challenge the arbitration award, but accepted payment from State Farm.[3] These facts provide a firm basis for State Farm's reasonable reliance upon the results of the arbitration. McCabe also alleges that State Farm's use of Dr. Kerson's testimony at the arbitration hearing reveals an inconsistency on State Farm's behalf that must be bad faith. According to McCabe, State Farm's increased settlement offer means it believed Dr. Schwartzman's diagnosis, (Exhs.R, U); therefore it used Dr. Kerson's contradictory testimony, (Exhs.Q, S), to win the arbitration. Again, McCabe has lost sight of the bad faith claim. To prove bad faith, a plaintiff must attack the reasonableness of an insurer in denying benefits. There is no reason for State Farm to doubt the truthfulness of Dr. Kerson's testimony. Thus McCabe's argument has no force. State Farm has provided sufficient evidence that it acted reasonably in denying McCabe UIM benefits. McCabe has presented no evidence to the contrary. Therefore, I will grant summary judgment for State Farm on the bad faith claim. IV. Breach of Contract McCabe's breach of contract claim requires her to prove four elements: the existence of a contract between the parties, the essential terms of the contract, a breach of the duty imposed by the contract, and damages resulting from the breach. Electron Energy Corp. v. Short, 408 Pa.Super. 563, 597 A.2d 175, 178-80 (1991); General State Auth. v. Coleman Cable & Wire Co., 27 Pa.Cmwlth. 385, 365 A.2d 1347, 1349 (1976); see also Caplan v. Fellheimer, Eichen, Braverman & Kaskey, 5 F.Supp.2d 299, 303 (E.D.Pa.1998). Interpretation of the insurance contract is assigned to the court. Visiting Nurse Ass'n v. St. Paul Fire & Marine Ins. Co., 65 F.3d 1097, 1100 (3d Cir.1995); Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (Pa.1983). In this instance, the operative language of the insurance policy reads: "[e]ach party shall select a competent and impartial arbitrator. These two shall select a third one." (Exh. F, at 17). McCabe maintains that State Farm breached the contract by failing to appoint an impartial arbitrator. State Farm counters that it did not commit a breach because both the neutral arbitrator, Ms. Boylan Thomas, and the defense arbitrator, Mr. Pugh, met the legal standard for impartiality. Both State Farm and McCabe move for summary judgment on this count. McCabe and State Farm agree that Pennsylvania law applies to the issue of arbitrator impartiality. The parties, however, disagree on the meaning of "impartial arbitrator." *673 Pennsylvania's courts and legislature value arbitration greatly because it provides "an expeditious and inexpensive method of resolving disputes with the further winning attribute of helping to ease congested court calendars." Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585, 589 (Pa.1973). This reflects the sanctity of arbitration and the deference given arbitration awards. McCabe did not challenge the arbitration through a direct appeal. To allow a collateral challenge would invade the sanctity of arbitration. Dressing up the collateral attack as a breach of contract claim has no effect on this analysis. Land v. State Farm Mut. Ins. Co., 410 Pa.Super. 579, 600 A.2d 605 (1991). The courts have narrowly circumscribed their review of arbitration proceedings, and have required clear, precise, and indubitable evidence. Fioravanti, 299 A.2d at 588. The few exceptions to the general rule of leaving an arbitration award undisturbed are the denial of a full and fair hearing, Smaligo v. Fireman's Fund Ins. Co., 432 Pa. 133, 247 A.2d 577, 580 (1968); an arbitrator's fraud, misconduct, corruption, or similar irregularity leading to an unjust, inequitable, or unconscionable award, Fioravanti, 299 A.2d at 588; and prior legal representation of one of the parties by an arbitrator, Bole v. Nationwide Ins. Co., 475 Pa. 187, 379 A.2d 1346, 1348 (Pa.1977). The Pennsylvania Uniform Arbitration Act allows for court review of arbitration awards for evident partiality by the neutral arbitrator, but restricts filing such a challenge to within thirty days of receiving notification of the award. 42 Pa.C.S.A. § 7314. The case of Land v. State Farm Ins. Co., 410 Pa.Super. 579, 600 A.2d 605 (1991), emphasizes the narrowness of these exceptions. In Land, pursuant to an insurance policy requiring a competent and impartial arbitrator, the insurer chose an arbitrator it used frequently — he was nicknamed "State Farm's arbitrator" — and whose awards often favored the insurer. Nonetheless, the court found the arbitration above reproach because the arbitrator's relationship to the insurer was insufficient to bring the arbitration within the exceptions. The court concluded that "a showing of a direct relationship between a party to an arbitration proceeding and a designated arbitrator must be shown ... before the requisite partiality of that arbitrator is established." Land, 600 A.2d at 607. In reaching this outcome, the court reasserted the importance of arbitration in lessening the burden on the judicial system. It noted that a lesser standard of partiality, an "indirect connection," would trigger judicial review whenever a claimant was dissatisfied with an arbitration award. The dispute before me must be analyzed against this background. Neither arbitrator challenged by McCabe fits within any of the enumerated exceptions. McCabe first contends that Mr. Pugh's financial self-interest makes him partial to State Farm, relying upon his and Mr. Lewis's practice of occasionally choosing each other as arbitrators, (Exh. Y, at 36-37). This level of financial self-interest falls far short of the corruption exception. Fioravanti, 299 A.2d at 588. McCabe next alleges that Mr. Pugh is partial to State Farm because his firm represented Dr. Kerson in a medical malpractice case during the pendency of the UIM claim. (Complaint Exh. O). Undisputed testimony reveals that neither Mr. Lewis nor Mr. Pugh knew of the representation while the UIM claim was active. (Exhs. X, at 11, 27, Y, at 11). Finally, McCabe asserts that ex parte communications with Mr. Lewis reveal Mr. Pugh's partiality to State Farm. McCabe highlights six phone calls between the two men that occurred after the appointment of the neutral arbitrator and before the announcement of the arbitration award, (Plaintiff's summary judgment motion Exh. 2), and their eating together during the break in the arbitration hearing, before all the evidence had been presented, (Exh. X, at 23-25). Both Mr. Lewis and Mr. Pugh stated that they had no ex parte communications concerning the merits of the case, (Exhs. X, at 46, Y, at 15-19), and McCabe presents no specific evidence to counter their sworn testimony. At best, when McCabe asserts that Mr. Pugh is partial because he and Mr. Lewis have appointed each other as arbitrators, he has an alleged connection to Dr. Kerson, and he communicated on an ex parte *674 basis with Mr. Lewis, she has merely shown an indirect connection between Mr. Pugh and State Farm. Since Mr. Pugh's undisputed testimony clearly demonstrates that neither he nor his firm currently have or previously had an attorney-client relationship with State Farm, (Exh. X, at 27-28), McCabe's tenuous connections are insufficient to upset the award, Land, 600 A.2d at 607. McCabe asserts that alleged partiality by the neutral arbitrator, Ms. Boylan Thomas, creates a breach of contract by State Farm. Pursuant to the insurance policy, (Exh. F, at 17), Mr. Pugh and Ms. Shelly, McCabe's arbitrator, jointly chose Ms. Boylan Thomas, (Exh. O), not State Farm or its agent, Mr. Lewis. As McCabe has not established State Farm's liability for any partiality by the neutral arbitrator, she has failed to state a claim for breach of contract. Assuming that State Farm could be held liable and the statute of limitations had not run, McCabe's claim still fails because relief cannot be granted. McCabe seeks damages, but the proper remedy is to vacate the arbitration award and remand for assignment of a new panel, 42 Pa.C.S.A. §§ 7314, 7341; Bole, 379 A.2d at 1347. As explained, State Farm's summary judgment motion on the breach of contract claim will be granted and the cross claim for summary judgment by McCabe will be denied. V. Unfair Trade Practices and Consumer Protection Law McCabe asserts a claim under the Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 Pa.S.A. § 201-1 to 201-9.3. To state a UTPCPL claim, a plaintiff must show that the defendant committed a misfeasance, which is defined as the improper performance of a contracted obligation. Gordon v. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600, 604 (1988). The commission of a nonfeasance, defined as the mere failure to perform, is not actionable. Gordon, 548 A.2d at 604. Both State Farm and McCabe move for summary judgment on this count. McCabe asserts that State Farm committed a misfeasance by failing to select an impartial arbitrator as required by the insurance policy. In response, State Farm asserts that it did not commit a misfeasance, moving for summary judgment because the failure to pay benefits is not actionable, Gordon, 548 A.2d at 604; the contract allowed it to request the medical records, SUO, and IME, (Exh. F, at 6, 17); and, as previously shown, it timely handled the UIM claim. McCabe's allegation raises the same issues involving Mr. Pugh as those discussed in the breach of contract section. In my analysis of the arbitration, I concluded that under the contract Mr. Pugh was impartial. Therefore, McCabe fails to show the commission of a misfeasance and cannot state a UTPCPL claim. Therefore, summary judgment will be entered for State Farm on this claim. VI. Deceit McCabe's deceit claim requires her to demonstrate the following elements: a misrepresentation, a fraudulent utterance thereof, an intention to induce action thereby, justifiable reliance thereon, and damage as a proximate result. Mellon Bank Corp. v. First Union Real Estate Equity & Mortgage Invs., 951 F.2d 1399, 1409 (3d Cir.1991); Wilson v. Donegal Mut. Ins. Co., 410 Pa.Super. 31, 598 A.2d 1310, 1315 (1991). State Farm moves for summary judgment on the ground that it acted in accordance with the contract and, therefore, no misrepresentation exists. McCabe, relying upon the contractual language governing the selection of the arbitrators, contends that State Farm made a misrepresention by indicating that she would receive a fair arbitration hearing. As shown above, the contract was fulfilled and the arbitration proceeding was fair. Summary judgment shall be entered for State Farm on this claim. VII. Intentional Infliction of Emotional Distress McCabe's final claim asserts intentional infliction of emotional distress based upon State Farm's breach of the insurance policy. Pennsylvania has a stringent test for such claims, limiting the cause of action to those instances in which the breach was of the kind where "serious emotional distress *675 was a particularly likely result." D'Ambrosio v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 494 Pa. 501, 431 A.2d 966, 970 n. 5 (Pa.1981) (citations omitted). As previously discussed, State Farm has not breached its contract with McCabe. McCabe attempts to state a claim by noting that she has seen a physician twice for sleeplessness caused by State Farm's handling of her claim. (Exh B, at 172). McCabe's naked allegation of emotional distress falls far short of the standard of D'Ambrosio because it states no actionable link to conduct of State Farm. Thus, State Farm's summary judgment motion shall be granted on this claim. AND NOW, this 12th day of January, 1999, IT IS ORDERED THAT defendant's motion for summary judgment is GRANTED (docket # 35) and plaintiff's motion for summary judgment is DENIED (docket # 36). Judgment is entered in favor of defendant State Farm. NOTES [1] Since McCabe must show a lack of reasonable basis in State Farm's handling of the claim, State Farm may prevail by affirmatively demonstrating a reasonable basis for its actions if McCabe does not present contradictory evidence. [2] State Farm included complete deposition transcripts in the exhibits accompanying its summary judgment motion. Therefore, citations refer to these exhibits unless otherwise specified. [3] McCabe filed her complaint in this court on December 12, 1996, more than five months after State Farm paid the arbitration award in full.

697 F.2d 294 O'Gormanv.U. S. Postal Service 81-4161 UNITED STATES COURT OF APPEALS Second Circuit 4/8/82 1 M.S.P.B. AFFIRMED

746 F.Supp.2d 471 (2010) Lee James HECKMAN, Plaintiff, v. D I MEDEANE, Defendant. No. 06-CV-6361L. United States District Court, W.D. New York. October 27, 2010. *472 Lee James Heckman, Piffard, NY, pro se. Emil J. Bove, Jr., Office of New York State Attorney General, Rochester, NY, for Defendant. DECISION AND ORDER DAVID G. LARIMER, District Judge. Plaintiff, Lee James Heckman, commenced this action pro se on July 18, 2006, alleging claims under 42 U.S.C. § 1983 against Willard Correctional Facility ("Willard") and Jose Medina, a correction officer employed at Willard, arising out of certain incidents that occurred in September 2005, while plaintiff was incarcerated at Willard.[1] The Court dismissed plaintiff's claims against Willard on February 8, 2007. In December 2008, the Court assigned counsel to represent plaintiff. On April 29, 2010, however, the Court granted counsel's motion to withdraw (which plaintiff did not oppose), based on counsel's showing that plaintiff had ceased communicating with counsel. See Dkt. # 22-# 25. On June 25, 2010, defendant Medina moved for summary judgment. Plaintiff has not responded to the motion. For the reasons that follow, the motion is granted. DISCUSSION I. Plaintiff's Failure to Respond to the Summary Judgment Motion Rule 56(e) of the Federal Rules of Civil Procedure provides that [w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response by affidavits or *473 as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. The Court of Appeals for the Second Circuit has held that when a party moves for summary judgment against a pro se litigant, either the movant or the district court must provide the pro se litigant with notice of the consequences of failing to respond to the motion. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir.1999); see also Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir.2001). In the instant case, both defendant's notice of motion (Dkt. # 31) and separate "Irby Notice" (Dkt. # 34), as well as the Court's scheduling order (Dkt. # 35), gave plaintiff ample notice of the requirements of Rule 56 and the consequences of failing to respond properly to a motion for summary judgment. There is no question that plaintiff has been adequately advised of the pendency of the motion, of the need for him to respond and the form in which he should do so, and of the consequences of not responding to defendant's arguments and factual allegations. He has not done so, however, and in fact has ceased to prosecute the case at all, which is the principal reason why his prior counsel was permitted to withdraw.[2] Since plaintiff has not responded to the motion, the Court may accept the truth of defendant's factual allegations, and determine whether defendant is entitled to summary judgment. See Pettus v. McGinnis, 533 F.Supp.2d 337, 338-39 (W.D.N.Y.2008). II. Defendant's Motion The second amended complaint (Dkt. # 19-8) alleges that plaintiff injured his right big toe in September 2005, and that defendant denied his requests to be placed in Willard's medical dormitory and to be excused from participation in mandatory physical exercise. Plaintiff alleges that he has suffered pain and continuing injury as a result of defendant's refusal. Based on these allegations, plaintiff asserts a claim against Medina alleging that Medina violated plaintiff's rights under the Eighth Amendment to the United States Constitution. The Eighth Amendment protects incarcerated individuals from being subjected to cruel and unusual punishment. Such punishment may include prison officials' deliberate indifference to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To make out such a claim, however, an inmate must establish both that he suffered from a "serious medical need," i.e., "`a condition of urgency' that may result in `degeneration' or `extreme pain,'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994)), that the defendant both knew of and disregarded that serious need, Johnson v. Wright, 412 F.3d 398, 403 (2d Cir.2005), and that in doing so, the defendant had a culpable state of mind and intended wantonly to inflict suffering. Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Plaintiff has failed to make such a showing. The uncontradicted evidence submitted by defendant shows that plaintiff did receive medical treatment for his complaints of pain in his toe and other problems from late September through *474 December 2005, after which he was transferred to a different facility. See Defendant's Rule 56.2 Statement (Dkt. # 32) 119 and exhibits cited therein. Willard records submitted by defendant indicate that plaintiff was assigned to the unit where Medina worked only for about two weeks in late September and early October 2005, that Medina did send plaintiff to the nurse on September 26, 2005, after plaintiff had complained of pain in his toe, and that Medina did not violate the physical restrictions placed on plaintiff by facility medical staff. Defendant's Rule 56.2 Statement ¶¶ 11-14; Medina Declaration (Dkt. 31) ¶¶ 3-5. In short, there is no evidence from which a factfinder could conclude that plaintiff has established any of the elements of an Eighth Amendment claim. CONCLUSION Defendant's motion for summary judgment (Dkt. #31) is granted, and the complaint is dismissed. IT IS SO ORDERED. NOTES [1] Medina's name is variously misspelled "Medeane" and "Medeana" in the original and amended complaints. [2] The New York State Department of Correctional Services internet Inmate Lookup website, http://nysdocslookup.docs.state.ny.us, indicates that plaintiff was released on parole in June 2008.

491 So.2d 310 (1986) James Edward DAWSON, Appellant, v. STATE of Florida, Appellee. No. 85-415. District Court of Appeal of Florida, Fourth District. July 9, 1986. *311 Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Robert S. Jaegers, Asst. Atty. Gen., West Palm Beach, for appellee. HERSEY, Chief Judge. We affirm the convictions of James Edward Dawson on all counts, finding that his points on appeal either demonstrate no error or, in one instance, that the error is harmless. However, we vacate the sentences and remand for resentencing because of various errors apparent in the original sentencing process. Those errors are briefly chronicled here to avoid their repetition upon remand. While the trial court expressed the intention to sentence appellant as an habitual offender, it is clear that he did not do so. Had he carried out that intent it would have been error for failure to make findings on the record in compliance with section 775.084(1)(a)3 and 4, Florida Statutes (1983). The trial court, as we gather from examination of the record, reclassified an attempted sexual battery as a first-degree felony and a false imprisonment as a second-degree felony. This, too, was error. Pursuant to section 775.087(1), Florida Statutes (1983), there were two possible bases for reclassification: use of a weapon (mace) and commission of an aggravated battery. However, as appellant points out, "the factual element subjecting the defendant to reclassification under section 775.087(1) must be found by the trier of fact, precluding judicial reclassification in a jury trial." State v. Smith, 462 So.2d 1102, 1103 (Fla. 1985). See also State v. Overfelt, 457 So.2d 1385 (Fla. 1984); Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982). There was no specific finding by the jury that, in connection with the commission of attempted sexual battery and false imprisonment, appellant used a weapon or committed an aggravated battery. Although appellant was found guilty of aggravated battery in a separate count, this is not sufficient, because each count must be considered alone. Streeter. There is an exception to the above rule where the crime of which the defendant was convicted necessarily includes the factual elements subjecting him to reclassification, see Overfelt, but such is not the case before us. It is not necessary to show the presence of all of the elements of an aggravated battery or use of a weapon in order to convict of either attempted sexual battery or false imprisonment. See §§ 777.04, 784.045, 787.02, 794.011(3), Fla. Stat. (1983). Appellant also properly asserts that because the crimes were committed after the effective date of the sentencing guidelines he was entitled to be sentenced under the guidelines with the benefit of a court-approved guidelines scoresheet. § 921.001(4)(a), Fla. Stat. (1983); Fla.R. Crim.P. 3.701 d. 1.; Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984); Knight v. State, 455 So.2d 457 (Fla. 1st DCA 1984). Nor does appellant's failure to object below to being sentenced without the use of a scoresheet prevent consideration of the issue on appeal. State v. Rhoden, 448 So.2d 1013 (Fla. 1984); Myrick. The trial court further erred in retention of jurisdiction over one-third of appellant's sentence. Retention of jurisdiction over any portion of a sentence imposed under the guidelines — as this sentence should have been — is improper. Clement v. State, 468 So.2d 467 (Fla. 4th DCA 1985). Finally, the trial judge improperly assessed costs against appellant, who had been declared indigent, without compliance with the requirements set forth in Jenkins v. State, 444 So.2d 947 (Fla. 1984). *312 We affirm the convictions but vacate the sentences and remand for resentencing. AFFIRMED IN PART; REVERSED IN PART; REMANDED. LETTS and DELL, JJ., concur.

112 Mich. App. 449 (1982) 316 N.W.2d 454 RUSS v. FEDERAL MOGUL CORPORATION Docket No. 52541. Michigan Court of Appeals. Decided January 19, 1982. Boltz, Roth & Silver, for plaintiffs. Dickinson, Wright, McKean, Cudlip & Moon (by Fred W. Freeman and Robert P. Ufer), for defendant. *451 Before: J.H. GILLIS, P.J., and BASHARA and K.N. SANBORN,[*] JJ. BASHARA, J. Plaintiffs, preferred shareholders of defendant corporation, brought this action for declaratory and injunctive relief to prevent a vote on a proposed amendment to the corporate articles of incorporation. They appeal a judgment entered in defendant's favor. A proper resolution of this dispute requires a recitation of the facts in some detail. Under the terms of a 1967 agreement, defendant purchased all of the assets of National Grinding Wheel Company, Inc., in exchange for 120,000 shares of defendant's Series A preferred stock. Each shareholder of National received a portion equal to his or her percentage of the outstanding capital stock of National. Plaintiffs or their predecessors received 73,026 shares of the Series A preferred stock, presently held by them. The 1967 Agreement provided that the holders of preferred stock should have the right to vote on any matter coming before any meeting of defendant's shareholders on the basis of one vote for each share of preferred stock held. The parties to the agreement intended that: "the holders of Preferred Stock and the holders of Common Stock [vote] together as one class". The agreement provided that holders of preferred stock are entitled to vote separately as a class when dividends on the preferred stock fell into arrears in an aggregate amount equal to six quarterly dividends. It finally indicated the four specific instances where defendant could not take corporate action without the affirmative vote of a specified majority of holders of outstanding preferred stocks: *452 (1) The authorization of classes of stock ranking prior to the preferred stock either in the payment of dividends or in the distribution of assets; (2) Alterations or changes in preferences or limitations with respect to the preferred stock in any material respect prejudicial to the holders thereof; (3) An increase in the total number of authorized shares of preferred stock; or (4) The authorization or increase of any class of stock ranking on a parity with the preferred stock. At the 1980 annual shareholders' meeting, defendant's board of directors proposed that the articles of incorporation be amended by the addition of article VI. Succinctly stated, the article requires the vote as a single class of "noninterested shareholders" resulting in majority approval before a business combination involving the corporation may be transacted. Business combinations include mergers, liquidations and other transactions involving at least $1,000,000. "Interested shareholders" may not join in the vote. An interested shareholder is one who holds 10% or more of the outstanding common stock and is a party to the transaction. In their complaint, plaintiffs assert that they should be allowed to vote as a separate class as preferred shareholders on the proposed amendment. The trial court disagreed and refused to grant the injunction. Consequently, the vote was held with all shareholders voting as one class and the amendment was overwhelmingly approved. However, it is undisputed that if plaintiffs had been allowed to vote as a separate class as preferred shareholders, the amendment would not have been adopted. Plaintiffs argue that under the articles of incorporation and the Michigan Business Corporation *453 Act (act), MCL 450.1101 et seq.; MSA 21.200(101) et seq., they were entitled to vote as a separate class. We agree with the trial court's conclusion that this argument is without merit. Article IIIB5(a)(ii) of the articles provides that the corporation shall not "alter or change the preferences or limitations" regarding the preferred stock without the approval of two-thirds of the outstanding preferred shareholders. Similarly, § 615 of the act, MCL 450.1615; MSA 21.200(615), states, in pertinent part: "(1) The holders of the outstanding shares of a class may vote as a class upon a proposed amendment, whether or not entitled to vote thereon by the articles of incorporation, if the amendment would increase or decrease the aggregate number of authorized shares of the class, or alter or change the powers, preferences or special rights of the shares of the class or other classes so as to affect the class adversely." (Emphasis added.) Since the amendment would clearly not increase or decrease the number of authorized shares of preferred stock, the statute gives plaintiffs the right to vote as a class only in the event that the amendment would alter the powers, preferences or special rights of the preferred shareholders. As preferred shareholders, plaintiffs must vote with common shareholders as one class except in certain circumstances enumerated in the articles, or in the 1967 agreement with the shareholders of National. None of those circumstances contravene the statute, supra. In those situations, plaintiffs have the right to vote as a class. Preferred shareholders enjoy liquidation preferences, dividend privileges and rights to redeem or convert their shares. We have reviewed the amendment and plaintiffs' *454 rights as preferred shareholders and find that there exists no alteration of the special privileges owned by preferred shareholders. Nor did defendant corporation take any action which would require the affirmative vote of the preferred shareholders under the four criteria, previously referred to, from the 1967 agreement. Plaintiffs' assertion that they would qualify as "interested shareholders" under the amendment, thereby decreasing their right to vote, is without merit. Plaintiffs collectively would own only 3% of the common outstanding stock in the event they exercised their rights to conversion. Thus, they are not presently interested shareholders. Similarly, plaintiffs' assertion that their conversion rights would be adversely affected is also not supported by our interpretation of the amendment. Assuming, arguendo, that plaintiffs' stock value is over $1,000,000 and that a conversion qualifies as a business combination under the amendment, plaintiffs still do not possess 10% of the common outstanding stock. Their rights to conversion therefore remain intact and noninterested voter approval is not required before those rights may be exercised. Furthermore, plaintiffs' unqualified and absolute right of conversion under the 1967 agreement is specifically recognized in section B(5) of article III itself, the subject of this controversy. Defendant, in its brief and at oral argument, recognizes the right of plaintiffs to conversion under any and all circumstances. Both parties contend that there are various ramifications of the adoption of the amendment. Defendant argues that the amendment is a protective device for the good of the majority. Plaintiffs assert that the management of defendant corporation *455 pushed the measure through by obtaining proxies in order to prevent any significant change of corporate composition and to guarantee their continuing positions in the business. Assuming that plaintiffs are correct in their assertion that the value of their stock is lessened by the amendment, we do not find the act nor article IIIB5(a)(ii) to be applicable. Any decrease in value of the stock will be across the board and will not affect the preferred shareholders as a class. See Hartford Accident & Indemnity Co v W S Dickey Clay Manufacturing Co, 26 Del Ch 411; 24 A2d 315 (1942).[1] The remaining arguments raised by plaintiffs were not addressed by the trial court. The declaratory judgment is affirmed and the matter is remanded to the trial court for consideration of the remainder of plaintiffs' complaint. Costs to abide the final outcome. J.H. GILLIS, P.J., concurred. K.N. SANBORN, J. (dissenting). I respectfully dissent from the majority conclusion that the "powers, preferences or special rights" of the preferred shareholders would not be affected by the amendment. The specific provisions of the amendment affecting conversion rights provide: *456 "A. 1. In addition to any affirmative vote required by law or these Articles of Incorporation, and except as otherwise expressly provided in paragraph B: * * * "(c) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Shareholder or any Affiliate of any Interested Shareholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more * * * "* * * shall require the affirmative vote or consent of the holders of at least a majority of the outstanding non-Interested shares of Common Stock and Preferred Stock of the Corporation considered for the purposes of this Article as one class * * *." Thus, the transfer by the corporation of securities (common stock) for securities (preferred stock) to any interested shareholder or their affiliate, in excess of $1,000,000, requires a majority vote of the outstanding noninterested shares of common and preferred stock. Plaintiffs' shares are valued in excess of $1,000,000. If they become interested shareholders or affiliated with interested shareholders and attempt to convert their preferred stock for common stock, a majority of the vote of the noninterested shareholders would be required. I recognize that plaintiffs' right to convert is not denied. However, that right is restricted under the provisions of the amendment. The "special right" of conversion is "altered or changed" so as to adversely affect the class of preferred shareholders. The entire class is affected since only preferred shareholders have conversion rights. Plaintiffs therefore were entitled to vote as a class on the proposed amendment. Contrary to defendant's contention that some *457 future right is involved, the proposed amendment would presently alter the conversion rights although the changes may not actually be invoked by an exercise of conversion rights until some future time. This conclusion is bolstered by § 301 of the Michigan Business Corporation Act, MCL 450.1301; MSA 21.200(301). Subsection (3) provides that "each share shall be equal to every other share of the same class", subject to § 302 (MCL 450.1302; MSA 21.200[302]) which allows division of a class of stock into series. Sections 301 and 302, when read together, require that if a class of stock is not divided into series, each share within the class must possess the same rights and powers, while if the class is divided into series, each share within the series must possess the same rights and powers. In the case at bar, plaintiffs are the holders of Preferred Series A, the series of preferred stock having conversion rights. As shown above, under some circumstances, the proposed amendment could operate to take away plaintiffs' right to vote their shares while leaving the other holders of the same series free to vote their shares. The amendment would have the same effect on holders of common stock, creating an inequality between those common shareholders who were the "beneficial owners" of 10 percent or more of the outstanding common stock and other holders of common stock. Accordingly, since the proposed amendment attempts to create an inequality within the series of preferred stock possessing conversion rights, and within the class of common stock, it violates § 301 and § 302, and is, therefore, invalid. Defendant in its brief cites the Delaware case of Providence & Worcester Co v Baker, 378 A2d 121 (Del, 1977), in an effort to avoid this interpretation *458 of MBCA §§ 301, 302. Defendant's reliance on this case is misplaced. Delaware's Business Corporation Act contains no counterpart to MBCA § 301. Providence & Worcester was decided on the basis of the Delaware counterpart of MBCA § 441 (MCL 450.1441; MSA 21.200[441]), which provides that "unless otherwise provided in the articles of incorporation" each outstanding share is entitled to one vote. Obviously, the amendment involved in the case at bar does not violate § 441, as the inequality in voting rights is to be included in the articles of incorporation. The inequality in voting rights involved in Providence & Worcester was valid for the same reason. But § 301 of the Michigan Business Corporation Act requires a different result when an inequality in voting rights within a class or series is established by amendment of the articles or otherwise. Since plaintiffs were entitled to vote as a class, the amendment was defeated. I would reverse the trial court. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment. [1] As defendant indicates, § 615 of the Michigan statute took its language from § 242(c)(2) of the General Corporation Law of the State of Delaware, Del Code Ann Title 8, § 101 et seq. In comment on the predecessor statute, the Delaware Supreme Court stated in Hartford Accident & Indemnity Co v W S Dickey Clay Manufacturing Co, supra, 419: "Where the corporate amendment does no more than to increase the number of shares of the preferred or superior class, the relative position of the subordinated shares is changed in the sense that they are subjected to a greater burden. The peculiar, or special, quality with which they are endowed, and which serves to distinguish them from shares of another class, remains the same." (Emphasis added.)

510 Pa. 247 (1986) 507 A.2d 369 COMMONWEALTH of Pennsylvania, PENNSYLVANIA HUMAN RELATIONS COMMISSION, Appellant, v. SCRANTON SCHOOL DISTRICT, Appellee. Supreme Court of Pennsylvania. Argued January 22, 1986. Decided April 2, 1986. *248 G. Thompson Bell, Asst. Gen. Counsel, Harrisburg, for appellant. Edwin Abrahamson, Sol., Scranton, for appellee. NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ. OPINION OF THE COURT HUTCHINSON, Justice. The Pennsylvania Human Relations Commission ("Commission"), asserting we have jurisdiction under 42 Pa.C.S. § 723(a), has filed this direct appeal from an order of Commonwealth Court denying the Commission's petition for enforcement. In 1981, the Commission issued an order against the Scranton School District after Mrs. Angeline Mackarey, an employee, alleged that Scranton School District had discriminated against her in the course of her employment. The School District did not appeal that order. *249 Mrs. Mackarey later returned to the Commission alleging that the School District violated the Commission's order. The Commission then filed a petition for enforcement of its order in Commonwealth Court. That court, after holding evidentiary hearings, denied the petition. The Commission filed its notice of appeal to our Court. We addressed the issue of whether there is a right of direct appeal to this Court from Commonwealth Court orders in enforcement proceedings in Pennsylvania Department of Aging v. Lindberg, 503 Pa. 423, 469 A.2d 1012 (1983), and held there is not. In that case, the plurality expressly disapproved of our opinion in Pennsylvania Human Relations Commission v. School District of Philadelphia, 480 Pa. 398, 390 A.2d 1238 (1978) (plurality opinion), which allowed an appeal as of right in enforcement cases. This necessarily follows from the reasoning in Lindberg that 42 Pa.C.S. § 723(a) does not allow a direct appeal as of right from orders entered on enforcement petitions filed in Commonwealth Court. There, the petition for enforcement filed by Mr. Lindberg was against the Department of Aging for violation of a State Civil Service Commission's reinstatement order which Commonwealth Court had affirmed on appeal. Here, the Human Relations Commission is seeking enforcement of its order which was never reviewed by Commonwealth Court on the merits but became final when appellee did not appeal. This distinction is immaterial. Thus, following Lindberg, we must quash this direct appeal. Without regard to whether enforcement petitions are within Commonwealth Court's original jurisdiction, 42 Pa. C.S. § 761, they do not involve matters "originally commenced" in that court as required by 42 Pa.C.S. § 723(a). Treating the papers filed as a petition for allowance of appeal, 42 Pa.C.S. § 724(b), Pa.R.A.P. 1102, the petition is denied. Appeal quashed; petition for allowance of appeal denied. PAPADAKOS, JJ., concurs in the result. McDERMOTT and ZAPPALA, JJ., file a dissenting opinion. *250 McDERMOTT, Justice, dissenting. In the case relied upon by the majority, a plurality of this Court quashed a party's appeal from an enforcement order entered by the Commonwealth Court. See Pennsylvania Department of Aging v. Lindberg, 503 Pa. 423, 469 A.2d 1012 (1983). I concurred in the result on the basis that the enforcement order there at issue was merely ancillary to the Commonwealth Court's appellate jurisdiction. See Concurring Opinion, McDermott, J., Id., 503 Pa. at 436, 469 A.2d at 1019. Here, however, the Commonwealth Court never had appellate jurisdiction. Thus, the Lindberg decision is not directly on point. Since the enforcement proceeding in this case, by necessity, was originally commenced in the Commonwealth Court I dissent from the decision to quash the appeal. ZAPPALA, Justice, dissenting. I dissent from the Court's decision to quash the appeal, treat the matter as a petition for allowance of appeal, and deny allocatur. See Pennsylvania Department of Aging v. Lindberg, 503 Pa. 423, 436, 469 A.2d 1012, 1019 (1983) (Concurring Opinion of Roberts, C.J., joined by Zappala, J.). As to the merits of the appeal, believing that the Commonwealth Court properly decided the issue presented, I would affirm the Order of that court.

SUPREME COURT OF THE UNITED STATES _________________ No. 5 Orig. _________________ UNITED STATES OF AMERICA, PLAINTIFF v. STATE OF CALIFORNIA ON BILL OF COMPLAINT [December 15, 2014] The joint motion for entry of a supplemental decree is granted. FIFTH SUPPLEMENTAL DECREE On October 27, 1947, this Court entered a final de- cree addressing the entitlement of the United States and the State of California to lands, minerals, and other natural resources underlying the Pacific Ocean offshore of California. United States v. California, 332 U.S. 804 (1947) (per curiam). On January 31, 1966, this Court entered a supplemental decree rede- fining the federal-state boundary pursuant to the Submerged Lands Act, 43 U.S.C. 1301-1315. 382 U.S. 448 (1966) (per curiam). Between 1977 and 1981, this Court issued three additional supplemental decrees further delineating particular portions of the federal- state boundary. 432 U.S. 40 (1977); 439 U.S. 30 (1978); 449 U.S. 408 (1981). For the purpose of identifying with greater particularity the boundary line between the submerged lands of California and those of the United States, it is ordered, adjudged, and decreed as follows: (1a)  2a 1. As against the United States, with the excep- tions provided by Section 5 of the Submerged Lands Act, 43 U.S.C. 1313, the State of California is entitled to all lands, minerals, and other natural resources underlying the Pacific Ocean, bounded on the south by the international boundary with the United Mexican States and on the north by the boundary between the States of California and Oregon and an extension thereof, that lie landward of the lines described in paragraph 3 below. 2. As against the State of California, the United States is entitled to all lands, minerals, and other natural resources underlying the Pacific Ocean, bounded on the south by the international boundary with the United Mexican States and on the north by the boundary between the States of California and Oregon and an extension thereof, that lie seaward of the lines described in paragraph 3 below. 3. The federal-state boundary lines, referred to in paragraphs 1 and 2 above, are located as follows: EXHIBIT A Location of the Fixed Offshore Boundary Between the United States and California that is Parallel to the Coastline of Mainland California. NAD 83/WGS 84 UTM ZONE 11 (meters) x-coordinate y-coordinate --------------------------------------------------------------------------- BEGINNING AT 482577.890 3599275.555 BY ARC CENTERED AT 488133.576 3599216.475 TO 482623.800 3599931.673 BY STRAIGHT LINE TO 482614.890 3599955.433 BY ARC CENTERED AT 487607.655 3602392.938  3a TO 482190.149 3601160.149 BY STRAIGHT LINE TO 482057.613 3601742.580 BY ARC CENTERED AT 487475.119 3602975.369 TO 481971.082 3602217.271 BY STRAIGHT LINE TO 481943.171 3602419.914 BY ARC CENTERED AT 487447.208 3603178.012 TO 481894.818 3603378.270 BY STRAIGHT LINE TO 481914.263 3603917.406 BY ARC CENTERED AT 487466.653 3603717.148 TO 481920.114 3604041.242 BY STRAIGHT LINE TO 481923.174 3604093.622 BY ARC CENTERED AT 487277.352 3605577.508 TO 481905.559 3606996.303 BY STRAIGHT LINE TO 481858.994 3607334.978 BY STRAIGHT LINE TO 481788.241 3607715.408 BY STRAIGHT LINE TO 481731.131 3607968.326 BY STRAIGHT LINE TO 481703.033 3608056.988 BY STRAIGHT LINE TO 481618.711 3608304.764 BY STRAIGHT LINE TO 481536.931 3608518.804 BY ARC CENTERED AT 486726.995 3610501.824 TO 481485.415 3608659.279 BY STRAIGHT LINE TO 481449.447 3608761.598 BY STRAIGHT LINE TO 481400.342 3608885.098 BY STRAIGHT LINE TO 481253.973 3609252.905 BY ARC CENTERED AT 479107.866 3614377.684 TO 480417.557 3608978.254 BY STRAIGHT LINE TO 478593.245 3608535.747 BY ARC CENTERED AT 477283.554 3613935.177 TO 473138.881 3610235.066 BY ARC CENTERED AT 476985.230 3614244.397 TO 471495.327 3613389.938 BY STRAIGHT LINE TO 471474.280 3613525.165 BY ARC CENTERED AT 476964.183 3614379.624 TO 471424.734 3613951.088  4a BY ARC CENTERED AT 476566.210 3616056.881 TO 471092.107 3615106.443 BY ARC CENTERED AT 476241.559 3617192.655 TO 470944.447 3615516.426 BY STRAIGHT LINE TO 470917.826 3615600.552 BY ARC CENTERED AT 476214.938 3617276.781 TO 470789.262 3616080.462 BY ARC CENTERED AT 476169.820 3617465.646 TO 470726.835 3616350.723 BY ARC CENTERED AT 476048.335 3617947.838 TO 470492.780 3618018.150 BY STRAIGHT LINE TO 470493.196 3618051.035 BY ARC CENTERED AT 476034.957 3618448.555 TO 470479.620 3618534.385 BY ARC CENTERED AT 475972.092 3619372.172 TO 470420.343 3619154.879 BY ARC CENTERED AT 475945.130 3619742.979 TO 470395.820 3619470.404 BY ARC CENTERED AT 475894.077 3620269.346 TO 470384.686 3619551.188 BY STRAIGHT LINE TO 470371.660 3619651.121 BY ARC CENTERED AT 475791.677 3620872.821 TO 470316.911 3621819.432 BY ARC CENTERED AT 475872.732 3621774.846 TO 470384.442 3622639.608 BY ARC CENTERED AT 475608.548 3624531.130 TO 470426.825 3626535.846 BY ARC CENTERED AT 474840.829 3629910.118 TO 470204.890 3626847.896 BY ARC CENTERED AT 474311.547 3630590.155 TO 469945.048 3627154.631 BY ARC CENTERED AT 474234.304 3630686.121 TO 469520.211 3627745.634 BY ARC CENTERED AT 473897.519 3631167.375  5a TO 468899.765 3628740.114 BY ARC CENTERED AT 473766.097 3631421.150 TO 468667.640 3629213.238 BY ARC CENTERED AT 473693.200 3631582.391 TO 468161.677 3631061.444 BY ARC CENTERED AT 473649.146 3631931.396 TO 468103.932 3631585.369 BY ARC CENTERED AT 473548.994 3632690.101 TO 468000.041 3632410.354 BY ARC CENTERED AT 473543.273 3632786.807 TO 467987.286 3632798.994 BY ARC CENTERED AT 473502.216 3633473.299 TO 468057.897 3634581.690 BY ARC CENTERED AT 473569.866 3633883.594 TO 468595.137 3636357.700 BY ARC CENTERED AT 473803.439 3634423.089 TO 470479.536 3638875.145 BY ARC CENTERED AT 474302.327 3634843.346 TO 470680.292 3639056.421 BY ARC CENTERED AT 476222.626 3639445.869 TO 470667.354 3639535.821 BY STRAIGHT LINE TO 470652.464 3639635.949 BY ARC CENTERED AT 475923.403 3641392.747 TO 470571.866 3639899.366 BY ARC CENTERED AT 475803.284 3641770.569 TO 470371.412 3640602.705 BY ARC CENTERED AT 475796.091 3641803.537 TO 470348.071 3640713.487 BY STRAIGHT LINE TO 470286.490 3641021.266 BY ARC CENTERED AT 475734.510 3642111.316 TO 470189.482 3641762.319 BY STRAIGHT LINE TO 470146.992 3642437.421 BY ARC CENTERED AT 475692.020 3642786.418 TO 470145.253 3642466.249  6a BY STRAIGHT LINE TO 470130.100 3642728.754 BY STRAIGHT LINE TO 470116.441 3642846.530 BY ARC CENTERED AT 475580.902 3643850.923 TO 470105.057 3642910.573 BY STRAIGHT LINE TO 470051.681 3643221.390 BY STRAIGHT LINE TO 469985.548 3643568.435 BY ARC CENTERED AT 475443.335 3644608.481 TO 469980.400 3643595.821 BY STRAIGHT LINE TO 469864.250 3643948.697 BY ARC CENTERED AT 475141.717 3645685.787 TO 469824.222 3644075.387 BY STRAIGHT LINE TO 469722.772 3644410.372 BY ARC CENTERED AT 475040.267 3646020.772 TO 469677.104 3644569.697 BY STRAIGHT LINE TO 469553.127 3645027.915 BY ARC CENTERED AT 474916.290 3646478.990 TO 469420.359 3645664.200 BY STRAIGHT LINE TO 469358.339 3646082.538 BY ARC CENTERED AT 474854.270 3646897.328 TO 469308.912 3646553.614 BY STRAIGHT LINE TO 469281.865 3646989.985 BY STRAIGHT LINE TO 469273.254 3647060.151 BY ARC CENTERED AT 474664.221 3648404.253 TO 469240.532 3647198.957 BY STRAIGHT LINE TO 469209.132 3647340.254 BY STRAIGHT LINE TO 469197.344 3647377.183 BY ARC CENTERED AT 474490.209 3649066.773 TO 469091.378 3647754.616 BY STRAIGHT LINE TO 469027.946 3648015.605 BY ARC CENTERED AT 474426.777 3649327.762 TO 468902.520 3648734.704 BY STRAIGHT LINE TO 468869.695 3649040.459 BY STRAIGHT LINE TO 468866.033 3649064.963 BY ARC CENTERED AT 473983.824 3651227.682  7a TO 468561.977 3650014.130 BY ARC CENTERED AT 473932.226 3651438.756 TO 468399.569 3650929.989 BY ARC CENTERED AT 473566.575 3652972.337 TO 468228.097 3651432.926 BY ARC CENTERED AT 473285.325 3653733.704 TO 468112.688 3651705.659 BY STRAIGHT LINE TO 468087.927 3651768.814 BY ARC CENTERED AT 472484.575 3655165.669 TO 467698.705 3652343.510 BY STRAIGHT LINE TO 467594.665 3652519.943 BY ARC CENTERED AT 472380.535 3655342.102 TO 466952.903 3654154.689 BY STRAIGHT LINE TO 466866.234 3654550.852 BY STRAIGHT LINE TO 466764.580 3655001.925 BY STRAIGHT LINE TO 466391.163 3656172.030 BY ARC CENTERED AT 471471.769 3658420.715 TO 466236.395 3656560.608 BY ARC CENTERED AT 471379.126 3658663.334 TO 466124.397 3656858.628 BY STRAIGHT LINE TO 465993.679 3657239.239 BY STRAIGHT LINE TO 465739.528 3657945.297 BY ARC CENTERED AT 470967.170 3659827.024 TO 465520.988 3658727.824 BY STRAIGHT LINE TO 465380.559 3659423.604 BY STRAIGHT LINE TO 465368.269 3659463.982 BY STRAIGHT LINE TO 465272.296 3659729.901 BY ARC CENTERED AT 470498.352 3661616.029 TO 465247.541 3659799.957 BY STRAIGHT LINE TO 465166.750 3660033.548 BY STRAIGHT LINE TO 465040.001 3660344.120 BY ARC CENTERED AT 470184.099 3662443.499 TO 464920.889 3660663.681 BY STRAIGHT LINE TO 464655.800 3661447.592  8a BY ARC CENTERED AT 469919.010 3663227.410 TO 464654.953 3661450.097 BY STRAIGHT LINE TO 464449.773 3662057.801 BY ARC CENTERED AT 468961.168 3665300.709 TO 464372.914 3662167.490 BY ARC CENTERED AT 468649.982 3665713.731 TO 463684.398 3663221.320 BY STRAIGHT LINE TO 463543.823 3663501.385 BY ARC CENTERED AT 468509.407 3665993.796 TO 463313.754 3664025.464 BY STRAIGHT LINE TO 463308.166 3664040.216 BY ARC CENTERED AT 468229.011 3666619.832 TO 463106.337 3664468.705 BY ARC CENTERED AT 467810.376 3667425.249 TO 462989.145 3664663.933 BY ARC CENTERED AT 467571.737 3667805.427 TO 462826.418 3664915.603 BY STRAIGHT LINE TO 462383.557 3665642.816 BY STRAIGHT LINE TO 462198.393 3665905.288 BY ARC CENTERED AT 466738.362 3669108.070 TO 462038.792 3666144.428 BY STRAIGHT LINE TO 461725.263 3666641.604 BY ARC CENTERED AT 466424.833 3669605.246 TO 461707.899 3666669.319 BY STRAIGHT LINE TO 461646.277 3666743.964 BY ARC CENTERED AT 465930.917 3670281.053 TO 461353.168 3667132.506 BY STRAIGHT LINE TO 461066.497 3667549.304 BY STRAIGHT LINE TO 460610.716 3668141.954 BY ARC CENTERED AT 465014.910 3671529.020 TO 460558.586 3668210.841 BY STRAIGHT LINE TO 460153.189 3668755.290 BY STRAIGHT LINE TO 459824.638 3669148.229 BY ARC CENTERED AT 464086.989 3672712.145  9a TO 459816.944 3669157.451 BY ARC CENTERED AT 462385.638 3674084.006 TO 457172.705 3672161.906 BY ARC CENTERED AT 462185.279 3674558.412 TO 456699.603 3673677.224 BY ARC CENTERED AT 461165.870 3676982.007 TO 456646.235 3673750.593 BY STRAIGHT LINE TO 456144.110 3674452.893 BY ARC CENTERED AT 460663.745 3677684.307 TO 456047.710 3674592.163 BY STRAIGHT LINE TO 455529.130 3675366.313 BY ARC CENTERED AT 460145.165 3678458.457 TO 455521.948 3675377.062 BY STRAIGHT LINE TO 454947.919 3676238.315 BY ARC CENTERED AT 459571.136 3679319.710 TO 454891.790 3676324.237 BY STRAIGHT LINE TO 454386.091 3677114.209 BY STRAIGHT LINE TO 453570.289 3678276.175 BY STRAIGHT LINE TO 452886.562 3679214.687 BY ARC CENTERED AT 457377.229 3682486.238 TO 452861.431 3679249.464 BY STRAIGHT LINE TO 452212.848 3680154.337 BY STRAIGHT LINE TO 451796.473 3680734.240 BY ARC CENTERED AT 456309.613 3683974.718 TO 451763.263 3680781.000 BY STRAIGHT LINE TO 451637.205 3680960.447 BY STRAIGHT LINE TO 451418.668 3681243.475 BY ARC CENTERED AT 455816.298 3684639.058 TO 451308.057 3681391.767 BY STRAIGHT LINE TO 451046.131 3681755.401 BY STRAIGHT LINE TO 450530.739 3682426.085 BY ARC CENTERED AT 454936.203 3685811.498 TO 450360.882 3682659.424 BY STRAIGHT LINE TO 450335.266 3682696.606  10a BY STRAIGHT LINE TO 449789.403 3683354.558 BY STRAIGHT LINE TO 449309.279 3683912.128 BY STRAIGHT LINE TO 448735.659 3684559.394 BY STRAIGHT LINE TO 448424.349 3684883.618 BY STRAIGHT LINE TO 448263.034 3685044.588 BY STRAIGHT LINE TO 448049.835 3685229.491 BY STRAIGHT LINE TO 447344.169 3685811.996 BY ARC CENTERED AT 450881.106 3690096.761 TO 447264.290 3685879.205 BY STRAIGHT LINE TO 446669.287 3686389.457 BY ARC CENTERED AT 450286.103 3690607.013 TO 446569.131 3686477.454 BY STRAIGHT LINE TO 446110.690 3686890.092 BY STRAIGHT LINE TO 445820.222 3687144.288 BY ARC CENTERED AT 448308.542 3692111.923 TO 445283.059 3687451.924 BY STRAIGHT LINE TO 445277.444 3687455.570 BY ARC CENTERED AT 447692.505 3692459.230 TO 444387.157 3687993.381 BY STRAIGHT LINE TO 444128.186 3688185.055 BY STRAIGHT LINE TO 444119.830 3688190.207 BY ARC CENTERED AT 447035.780 3692919.517 TO 443728.792 3688454.882 BY ARC CENTERED AT 445264.398 3693794.456 TO 443714.161 3688459.111 BY STRAIGHT LINE TO 443532.553 3688511.879 BY ARC CENTERED AT 445082.790 3693847.224 TO 441512.919 3689589.859 BY ARC CENTERED AT 444755.312 3694101.624 TO 441017.740 3689990.701 BY ARC CENTERED AT 444534.195 3694292.291 TO 440032.759 3691035.573 BY STRAIGHT LINE TO 439943.039 3691159.584 BY ARC CENTERED AT 444444.475 3694416.302  11a TO 439636.590 3691631.813 BY ARC CENTERED AT 442605.842 3696327.841 TO 438838.990 3692243.730 BY ARC CENTERED AT 442588.629 3696343.650 TO 437609.872 3693877.658 BY ARC CENTERED AT 441134.537 3698172.524 TO 436021.565 3695998.437 BY ARC CENTERED AT 438003.160 3701189.046 TO 435311.987 3696328.313 BY ARC CENTERED AT 435721.345 3701869.212 TO 433976.418 3696594.332 BY ARC CENTERED AT 433673.780 3702142.083 TO 429849.087 3698112.088 BY ARC CENTERED AT 433337.601 3702436.369 TO 428084.409 3700627.194 BY ARC CENTERED AT 433323.171 3702477.738 TO 427914.371 3701207.299 BY ARC CENTERED AT 431902.465 3705075.663 TO 427827.015 3701299.442 BY ARC CENTERED AT 431807.930 3705175.194 TO 427168.551 3702118.186 BY ARC CENTERED AT 431628.049 3705432.098 TO 426825.996 3702637.563 BY ARC CENTERED AT 431456.061 3705708.660 TO 426423.507 3703354.400 BY ARC CENTERED AT 430692.511 3706910.345 TO 425965.610 3703990.492 BY ARC CENTERED AT 429337.647 3708406.203 TO 425249.239 3704644.015 BY ARC CENTERED AT 429327.921 3708416.745 TO 424511.989 3705646.197 BY ARC CENTERED AT 427662.649 3710222.492 TO 423252.813 3706842.776 BY ARC CENTERED AT 425243.107 3712030.055  12a TO 423045.606 3706927.102 BY ARC CENTERED AT 425205.576 3712046.054 TO 421729.857 3707711.482 BY ARC CENTERED AT 423746.027 3712888.759 TO 419131.609 3709794.202 BY ARC CENTERED AT 422564.060 3714163.117 TO 419066.390 3709846.239 BY ARC CENTERED AT 422488.221 3714223.476 TO 417927.509 3711050.301 BY ARC CENTERED AT 420764.523 3715827.380 TO 417787.612 3711136.204 BY ARC CENTERED AT 419968.271 3716246.376 TO 417215.131 3711420.471 BY ARC CENTERED AT 418390.740 3716850.672 TO 414335.579 3713052.672 BY ARC CENTERED AT 415406.168 3718504.550 TO 413734.648 3713205.950 BY STRAIGHT LINE TO 413563.012 3713260.096 BY ARC CENTERED AT 413893.309 3718806.269 TO 410954.903 3714090.879 BY STRAIGHT LINE TO 410885.700 3714134.003 BY ARC CENTERED AT 413824.106 3718849.393 TO 409051.141 3716005.462 BY ARC CENTERED AT 411081.903 3721177.033 TO 406620.867 3717865.192 BY ARC CENTERED AT 409698.409 3722490.975 TO 406292.676 3718101.200 BY STRAIGHT LINE TO 405954.273 3718363.745 BY STRAIGHT LINE TO 405569.160 3718647.785 BY ARC CENTERED AT 408867.022 3723119.165 TO 405451.775 3718736.788 BY STRAIGHT LINE TO 405121.690 3718994.029 BY STRAIGHT LINE TO 404921.736 3719132.307 BY ARC CENTERED AT 408081.937 3723702.019  13a TO 404702.408 3719292.039 BY STRAIGHT LINE TO 404224.099 3719658.585 BY ARC CENTERED AT 407114.168 3724403.755 TO 403381.074 3720288.765 BY STRAIGHT LINE TO 403113.721 3720531.306 BY ARC CENTERED AT 406846.815 3724646.296 TO 402939.981 3720695.881 BY STRAIGHT LINE TO 402600.310 3721031.804 BY STRAIGHT LINE TO 402561.881 3721066.404 BY ARC CENTERED AT 405590.059 3725724.652 TO 401488.679 3721976.610 BY ARC CENTERED AT 405176.827 3726131.932 TO 401261.984 3722189.453 BY STRAIGHT LINE TO 400842.441 3722606.055 BY ARC CENTERED AT 404757.284 3726548.534 TO 400599.677 3722862.962 BY STRAIGHT LINE TO 399875.142 3723680.293 BY ARC CENTERED AT 404032.749 3727365.865 TO 399810.096 3723755.001 BY STRAIGHT LINE TO 399258.281 3724400.310 BY ARC CENTERED AT 403480.934 3728011.174 TO 399016.215 3724704.299 BY STRAIGHT LINE TO 398814.408 3724976.765 BY STRAIGHT LINE TO 398741.537 3725072.370 BY ARC CENTERED AT 403160.298 3728440.409 TO 398678.546 3725156.656 BY STRAIGHT LINE TO 398371.172 3725576.168 BY STRAIGHT LINE TO 397863.322 3726233.270 BY STRAIGHT LINE TO 397558.155 3726570.150 BY STRAIGHT LINE TO 397435.143 3726702.963 BY STRAIGHT LINE TO 397402.959 3726735.868 BY STRAIGHT LINE TO 395242.971 3726506.945 BY ARC CENTERED AT 394657.408 3732032.002 TO 394592.842 3726476.377  14a BY STRAIGHT LINE TO 390553.760 3726523.318 BY ARC CENTERED AT 390618.326 3732078.943 TO 390484.099 3726524.565 BY STRAIGHT LINE TO 389943.145 3726537.637 BY STRAIGHT LINE TO 389202.423 3726544.350 BY STRAIGHT LINE TO 386572.993 3725558.841 BY ARC CENTERED AT 384623.066 3730761.429 TO 386549.281 3725550.016 BY STRAIGHT LINE TO 385975.417 3725337.907 BY STRAIGHT LINE TO 384686.678 3724848.875 BY ARC CENTERED AT 382715.515 3730043.454 TO 383364.655 3724525.506 BY STRAIGHT LINE TO 383196.279 3724505.698 BY ARC CENTERED AT 382547.139 3730023.646 TO 381635.108 3724543.013 BY STRAIGHT LINE TO 381509.202 3724563.965 BY ARC CENTERED AT 382421.233 3730044.598 TO 381229.272 3724617.963 BY ARC CENTERED AT 380598.163 3730138.003 TO 380682.698 3724582.646 BY ARC CENTERED AT 380533.778 3730136.650 TO 380311.392 3724585.102 BY ARC CENTERED AT 380326.821 3730141.081 TO 380038.757 3724592.554 BY ARC CENTERED AT 380050.641 3730148.541 TO 377739.547 3725096.019 BY ARC CENTERED AT 380017.102 3730163.748 TO 376670.495 3725728.733 BY ARC CENTERED AT 377956.007 3731133.971 TO 375456.405 3726172.003 BY ARC CENTERED AT 377898.700 3731162.427 TO 374327.581 3726906.109 BY ARC CENTERED AT 376683.991 3731937.656 TO 374156.989 3726989.586  15a BY ARC CENTERED AT 376168.767 3732168.571 TO 373556.517 3727264.972 BY ARC CENTERED AT 374828.764 3732673.347 TO 372087.101 3727840.913 BY STRAIGHT LINE TO 372010.957 3727884.113 BY ARC CENTERED AT 374752.620 3732716.547 TO 371417.813 3728272.652 BY ARC CENTERED AT 370519.804 3733755.600 TO 370257.251 3728205.807 BY STRAIGHT LINE TO 370138.668 3728211.417 BY ARC CENTERED AT 370401.221 3733761.210 TO 368458.564 3728555.903 BY ARC CENTERED AT 370180.140 3733838.451 TO 368107.019 3728683.715 BY ARC CENTERED AT 369106.178 3734149.135 TO 367683.902 3728778.263 BY ARC CENTERED AT 369085.148 3734154.660 TO 363568.122 3733497.731 BY ARC CENTERED AT 369084.224 3734162.374 TO 363556.895 3733598.659 BY ARC CENTERED AT 369007.129 3734677.589 TO 363501.421 3733931.723 BY ARC CENTERED AT 368049.507 3737122.969 TO 362773.521 3735381.387 BY ARC CENTERED AT 367696.203 3737957.496 TO 362430.631 3736184.678 BY STRAIGHT LINE TO 362404.683 3736261.748 BY ARC CENTERED AT 367670.255 3738034.566 TO 362161.242 3738755.616 BY ARC CENTERED AT 367676.322 3738082.541 TO 363130.845 3741277.503 BY ARC CENTERED AT 368059.637 3738713.102 TO 363175.689 3741361.911 BY ARC CENTERED AT 368078.384 3738747.964  16a TO 363339.162 3741647.777 BY ARC CENTERED AT 368174.276 3738910.842 TO 363788.616 3742321.872 BY STRAIGHT LINE TO 363953.615 3742534.016 BY ARC CENTERED AT 368339.275 3739122.986 TO 364459.336 3743099.820 BY ARC CENTERED AT 368602.630 3739398.165 TO 364587.706 3743238.676 BY ARC CENTERED AT 369379.169 3740426.022 TO 365165.144 3744046.951 BY ARC CENTERED AT 370338.745 3746072.535 TO 365080.126 3744279.196 BY ARC CENTERED AT 370299.638 3746183.358 TO 364764.315 3746662.253 BY STRAIGHT LINE TO 364510.233 3747358.852 BY STRAIGHT LINE TO 364373.585 3747717.311 BY STRAIGHT LINE TO 364251.563 3747992.435 BY STRAIGHT LINE TO 364028.009 3748459.530 BY ARC CENTERED AT 369039.598 3750858.095 TO 363897.564 3748753.666 BY STRAIGHT LINE TO 363647.516 3749364.642 BY ARC CENTERED AT 368789.550 3751469.071 TO 363569.652 3749565.968 BY STRAIGHT LINE TO 363292.596 3750325.888 BY STRAIGHT LINE TO 363082.000 3750857.615 BY ARC CENTERED AT 367750.572 3753869.851 TO 362377.308 3752456.640 BY ARC CENTERED AT 367259.312 3755109.029 TO 361996.154 3753329.055 BY ARC CENTERED AT 366597.471 3756443.059 TO 361513.157 3754202.772 BY ARC CENTERED AT 365053.916 3758484.379 TO 361488.450 3754223.324 BY STRAIGHT LINE TO 361338.251 3754349.004  17a BY ARC CENTERED AT 364903.717 3758610.059 TO 360004.927 3755988.800 BY STRAIGHT LINE TO 359865.387 3756249.582 BY ARC CENTERED AT 364764.177 3758870.841 TO 359473.083 3757175.713 BY STRAIGHT LINE TO 359403.773 3757392.054 BY ARC CENTERED AT 364694.867 3759087.182 TO 359254.394 3757960.067 BY ARC CENTERED AT 363610.249 3761409.076 TO 358998.533 3758310.493 BY STRAIGHT LINE TO 358904.054 3758451.109 BY ARC CENTERED AT 363515.770 3761549.692 TO 358602.960 3758954.805 BY ARC CENTERED AT 361364.190 3763776.086 TO 357347.252 3759937.682 BY STRAIGHT LINE TO 356921.172 3760383.580 BY ARC CENTERED AT 360938.110 3764221.984 TO 355908.898 3761860.594 BY ARC CENTERED AT 356400.693 3767394.785 TO 355022.486 3762012.436 BY ARC CENTERED AT 353877.448 3767449.165 TO 354341.105 3761912.545 BY STRAIGHT LINE TO 354204.462 3761901.102 BY ARC CENTERED AT 353740.805 3767437.722 TO 352938.226 3761939.995 BY ARC CENTERED AT 351650.023 3767344.592 TO 352810.734 3761911.187 BY ARC CENTERED AT 351425.507 3767291.734 TO 352069.002 3761773.125 BY ARC CENTERED AT 351369.477 3767284.912 TO 350547.429 3761790.062 BY ARC CENTERED AT 351093.742 3767319.138 TO 350279.517 3761823.124 BY ARC CENTERED AT 349821.525 3767360.215  18a TO 349542.409 3761811.230 BY ARC CENTERED AT 348999.567 3767340.648 TO 348242.319 3761836.494 BY STRAIGHT LINE TO 348140.958 3761850.439 BY ARC CENTERED AT 348898.206 3767354.593 TO 347599.618 3761952.482 BY ARC CENTERED AT 347792.693 3767505.126 TO 347497.336 3761956.982 BY ARC CENTERED AT 344653.684 3766730.113 TO 346785.070 3761599.194 BY ARC CENTERED AT 344636.636 3766722.998 TO 346088.219 3761359.972 BY ARC CENTERED AT 344621.689 3766718.930 TO 345193.948 3761192.479 BY ARC CENTERED AT 344603.956 3766717.065 TO 343645.704 3761244.325 BY ARC CENTERED AT 342578.912 3766696.947 TO 342448.904 3761142.468 BY ARC CENTERED AT 342450.660 3766698.468 TO 341071.898 3761316.261 BY ARC CENTERED AT 341437.410 3766860.225 TO 340650.746 3761360.198 BY ARC CENTERED AT 341273.824 3766881.150 TO 340373.040 3761398.657 BY ARC CENTERED AT 337897.557 3766372.702 TO 338831.259 3760895.720 BY ARC CENTERED AT 334417.190 3764269.905 TO 336682.761 3759196.807 BY ARC CENTERED AT 333150.169 3763485.155 TO 336361.489 3758951.221 BY ARC CENTERED AT 333077.118 3763432.520 TO 330939.947 3758304.008 BY ARC CENTERED AT 333060.046 3763439.601 TO 328076.995 3760982.298  19a BY ARC CENTERED AT 332410.508 3764459.337 TO 327920.175 3761187.328 BY STRAIGHT LINE TO 327595.782 3761495.407 BY STRAIGHT LINE TO 327115.401 3761915.287 BY STRAIGHT LINE TO 326942.817 3762062.652 BY ARC CENTERED AT 328118.574 3767492.821 TO 326240.903 3762263.721 BY ARC CENTERED AT 327347.419 3767708.421 TO 326229.087 3762266.136 BY ARC CENTERED AT 326423.762 3767818.724 TO 325663.042 3762315.049 BY ARC CENTERED AT 325802.273 3767869.304 TO 324124.118 3762572.802 BY ARC CENTERED AT 325018.345 3768056.368 TO 323364.726 3762752.155 BY ARC CENTERED AT 323906.764 3768281.651 TO 322773.990 3762842.353 BY ARC CENTERED AT 323738.043 3768314.075 TO 322738.278 3762848.766 BY ARC CENTERED AT 323228.789 3768383.071 TO 321653.924 3763054.944 BY ARC CENTERED AT 321221.130 3768594.062 TO 319321.411 3763372.931 BY ARC CENTERED AT 320990.177 3768672.399 TO 319082.631 3763454.123 BY ARC CENTERED AT 319520.611 3768992.833 TO 316282.943 3764477.676 BY ARC CENTERED AT 319444.163 3769046.683 TO 315729.952 3764914.641 BY ARC CENTERED AT 319420.201 3769068.097 TO 315499.507 3765131.437 BY ARC CENTERED AT 318697.362 3769674.878 TO 315218.016 3765343.217 BY ARC CENTERED AT 316763.642 3770679.899  20a TO 314202.855 3765749.229 BY ARC CENTERED AT 314850.594 3771267.342 TO 312506.912 3766229.853 BY STRAIGHT LINE TO 312239.272 3766354.372 BY ARC CENTERED AT 314582.954 3771391.861 TO 311146.295 3767026.256 BY STRAIGHT LINE TO 311143.024 3767028.831 BY ARC CENTERED AT 313861.221 3771874.503 TO 310004.083 3767875.551 BY ARC CENTERED AT 310619.605 3773397.350 TO 309299.249 3768000.518 BY ARC CENTERED AT 309885.168 3773525.537 TO 308131.775 3768253.464 BY STRAIGHT LINE TO 308031.156 3768286.928 BY ARC CENTERED AT 309784.549 3773559.001 TO 306375.619 3769171.709 BY ARC CENTERED AT 305346.069 3774631.486 TO 304292.950 3769176.206 BY STRAIGHT LINE TO 304074.836 3769218.312 BY ARC CENTERED AT 305127.955 3774673.592 TO 303406.231 3769391.092 BY STRAIGHT LINE TO 303209.345 3769455.263 BY ARC CENTERED AT 304931.069 3774737.763 TO 302781.542 3769614.417 BY STRAIGHT LINE TO 302397.173 3769775.682 BY STRAIGHT LINE TO 302080.961 3769870.276 BY ARC CENTERED AT 303673.318 3775193.202 TO 301147.626 3770244.463 BY STRAIGHT LINE TO 300891.379 3770375.244 BY ARC CENTERED AT 303417.071 3775323.983 TO 300332.656 3770702.780 BY STRAIGHT LINE TO 300171.063 3770810.635 BY ARC CENTERED AT 303255.478 3775431.838 TO 299755.337 3771116.963  21a BY STRAIGHT LINE TO 299655.872 3771197.647 BY STRAIGHT LINE TO 299469.453 3771340.025 BY STRAIGHT LINE TO 299201.500 3771534.429 BY ARC CENTERED AT 302464.213 3776031.522 TO 298875.189 3771790.291 BY STRAIGHT LINE TO 298704.137 3771935.039 BY ARC CENTERED AT 302293.161 3776176.270 TO 298582.052 3772041.441 BY STRAIGHT LINE TO 298141.387 3772436.949 BY STRAIGHT LINE TO 297626.034 3772833.760 BY ARC CENTERED AT 301015.652 3777235.989 TO 297592.958 3772859.427 BY STRAIGHT LINE TO 296884.077 3773413.808 BY ARC CENTERED AT 300306.771 3777790.370 TO 296539.264 3773706.863 BY STRAIGHT LINE TO 296108.080 3774104.680 BY ARC CENTERED AT 299875.587 3778188.187 TO 296086.433 3774124.759 BY STRAIGHT LINE TO 295476.574 3774693.454 BY ARC CENTERED AT 296053.433 3780219.426 TO 294708.985 3774828.545 BY STRAIGHT LINE TO 294316.420 3774926.448 BY ARC CENTERED AT 295660.868 3780317.329 TO 291255.251 3776932.115 BY ARC CENTERED AT 294385.246 3781522.569 TO 289614.267 3778675.307 BY STRAIGHT LINE TO 289265.728 3779259.332 BY ARC CENTERED AT 294036.707 3782106.594 TO 288485.709 3782342.300 BY STRAIGHT LINE TO 288259.079 3782864.672 BY ARC CENTERED AT 293356.061 3785075.986 TO 288230.254 3782932.336 BY STRAIGHT LINE TO 287944.819 3783614.854 BY STRAIGHT LINE TO 287707.020 3784102.443  22a BY ARC CENTERED AT 292700.774 3786537.922 TO 287559.991 3784430.438 BY STRAIGHT LINE TO 287380.800 3784867.540 BY STRAIGHT LINE TO 287170.188 3785358.650 BY ARC CENTERED AT 292276.444 3787548.463 TO 287066.653 3785617.864 BY STRAIGHT LINE TO 286869.943 3786148.693 BY ARC CENTERED AT 292079.734 3788079.292 TO 286748.889 3786513.651 BY STRAIGHT LINE TO 286538.803 3787228.973 BY STRAIGHT LINE TO 286292.986 3788059.709 BY STRAIGHT LINE TO 286278.865 3788095.963 BY ARC CENTERED AT 291456.026 3790112.430 TO 286136.573 3788508.510 BY ARC CENTERED AT 291349.913 3790429.506 TO 286058.889 3788734.160 BY ARC CENTERED AT 290708.408 3791775.723 TO 285577.393 3789644.568 BY ARC CENTERED AT 287555.356 3794836.562 TO 284838.125 3789990.348 BY STRAIGHT LINE TO 284771.666 3790027.611 BY ARC CENTERED AT 287488.897 3794873.825 TO 284136.796 3790442.961 BY ARC CENTERED AT 287244.878 3795048.280 TO 283288.792 3791147.188 BY ARC CENTERED AT 286727.728 3795511.000 TO 282863.710 3791518.694 BY ARC CENTERED AT 285382.203 3796471.101 TO 282784.040 3791560.023 BY STRAIGHT LINE TO 282492.301 3791714.365 BY ARC CENTERED AT 285090.464 3796625.443 TO 281872.851 3792095.972 BY STRAIGHT LINE TO 281534.737 3792336.159 BY ARC CENTERED AT 284752.350 3796865.630  23a TO 280165.148 3793730.871 BY STRAIGHT LINE TO 280013.411 3793952.913 BY ARC CENTERED AT 284600.613 3797087.672 TO 279791.118 3794305.965 BY STRAIGHT LINE TO 279734.507 3794403.843 BY ARC CENTERED AT 280269.365 3799934.039 TO 279725.241 3794404.747 BY STRAIGHT LINE TO 279593.554 3794417.706 BY ARC CENTERED AT 280137.678 3799946.998 TO 277709.640 3794949.622 BY STRAIGHT LINE TO 277592.292 3795006.637 BY ARC CENTERED AT 280020.330 3800004.013 TO 276380.293 3795806.482 BY STRAIGHT LINE TO 276294.060 3795881.262 BY ARC CENTERED AT 279934.097 3800078.793 TO 275467.439 3796774.537 BY STRAIGHT LINE TO 275311.013 3796985.992 BY ARC CENTERED AT 279777.671 3800290.248 TO 274958.039 3797526.142 BY ARC CENTERED AT 278042.499 3802147.315 TO 274102.234 3798230.243 BY STRAIGHT LINE TO 274066.767 3798265.920 BY ARC CENTERED AT 278007.032 3802182.992 TO 273634.610 3798755.010 BY ARC CENTERED AT 277729.160 3802510.512 TO 273411.657 3799013.612 BY ARC CENTERED AT 275316.294 3804232.951 TO 272383.627 3799513.989 BY ARC CENTERED AT 275290.848 3804248.670 TO 270922.808 3800815.105 BY ARC CENTERED AT 272129.152 3806238.561 TO 269565.757 3801309.246 BY ARC CENTERED AT 272053.655 3806277.093 TO 268217.631 3802257.882  24a BY ARC CENTERED AT 269561.456 3807648.918 TO 268012.991 3802313.059 BY ARC CENTERED AT 269218.793 3807736.635 TO 267490.578 3802456.255 BY ARC CENTERED AT 268579.562 3807904.489 TO 265642.537 3803188.238 BY ARC CENTERED AT 266189.144 3808717.285 TO 261657.613 3805502.574 BY ARC CENTERED AT 263178.832 3810846.265 TO 261455.879 3805564.166 BY ARC CENTERED AT 262801.080 3810954.859 TO 260306.215 3805990.508 BY STRAIGHT LINE TO 260195.698 3806046.049 BY ARC CENTERED AT 262690.563 3811010.400 TO 259985.291 3806157.500 BY ARC CENTERED AT 259096.944 3811642.021 TO 259335.007 3806091.124 BY ARC CENTERED AT 257687.128 3811397.123 TO 257943.680 3805847.049 BY STRAIGHT LINE TO 257619.505 3805832.064 BY ARC CENTERED AT 257362.953 3811382.138 TO 256651.021 3805871.939 BY STRAIGHT LINE TO 256582.253 3805880.824 BY ARC CENTERED AT 257294.185 3811391.023 TO 256359.651 3805914.183 BY ARC CENTERED AT 252950.420 3810301.241 TO 255533.536 3805382.232 BY STRAIGHT LINE TO 255175.826 3805194.388 BY ARC CENTERED AT 252592.710 3810113.397 TO 254735.984 3804987.433 BY ARC CENTERED AT 251621.228 3809588.240 TO 254590.215 3804892.045 BY ARC CENTERED AT 251584.562 3809564.858 TO 254129.478 3804625.978  25a BY ARC CENTERED AT 251398.347 3809464.372 TO 253379.022 3804273.412 BY ARC CENTERED AT 251236.344 3809399.626 TO 253095.324 3804163.852 BY ARC CENTERED AT 251021.750 3809318.406 TO 252455.775 3803950.659 BY STRAIGHT LINE TO 252413.807 3803939.447 BY ARC CENTERED AT 250979.782 3809307.194 TO 251089.970 3803752.287 BY ARC CENTERED AT 250716.688 3809295.733 TO 249973.487 3803789.665 BY ARC CENTERED AT 249559.088 3809330.189 TO 248801.299 3803826.109 BY ARC CENTERED AT 249197.105 3809367.993 TO 246956.488 3804283.824 BY ARC CENTERED AT 249137.219 3809393.966 TO 246227.363 3804660.904 BY ARC CENTERED AT 248406.584 3809771.690 TO 245746.137 3804894.072 BY ARC CENTERED AT 247246.057 3810243.780 TO 244468.911 3805431.650 BY ARC CENTERED AT 246315.545 3810671.791 TO 243708.216 3805765.573 BY ARC CENTERED AT 245699.301 3810952.549 TO 243106.827 3806038.466 BY ARC CENTERED AT 245152.071 3811204.326 TO 242570.871 3806284.312 BY ARC CENTERED AT 242022.142 3811813.148 TO 241992.131 3806257.229 BY ARC CENTERED AT 238632.880 3810682.675 TO 241045.489 3805677.832 BY ARC CENTERED AT 238537.751 3810635.693 TO 236405.160 3805505.275 BY ARC CENTERED AT 235452.665 3810979.020  26a TO 233501.203 3805777.008 BY STRAIGHT LINE TO 233420.267 3805807.370 BY ARC CENTERED AT 235371.729 3811009.382 TO 232207.519 3806442.445 BY STRAIGHT LINE TO 232113.763 3806507.404 BY ARC CENTERED AT 235277.973 3811074.341 TO 231254.502 3807242.786 BY STRAIGHT LINE TO 231160.927 3807341.048 BY ARC CENTERED AT 235184.398 3811172.603 TO 230852.157 3807693.979 BY ARC CENTERED AT 233401.273 3812630.693 TO 230151.619 3808124.155 BY STRAIGHT LINE TO 230133.353 3808137.327 BY ARC CENTERED AT 233280.275 3812716.193 TO 230041.698 3808201.688 BY ARC CENTERED AT 233163.261 3812797.880 TO 230020.917 3808215.871 BY ARC CENTERED AT 233107.602 3812835.558 TO 229658.828 3808479.517 BY ARC CENTERED AT 232900.216 3812992.004 TO 229433.641 3808650.116 BY ARC CENTERED AT 228923.577 3814182.653 TO 228654.839 3808633.156 BY STRAIGHT LINE TO 228574.964 3808637.024 BY ARC CENTERED AT 228843.702 3814186.521 TO 227526.533 3808788.910 BY STRAIGHT LINE TO 227154.793 3808879.625 BY ARC CENTERED AT 228471.962 3814277.236 TO 226939.332 3808936.807 BY STRAIGHT LINE TO 226798.172 3808977.318 BY ARC CENTERED AT 228330.802 3814317.747 TO 224650.007 3810155.910 BY ARC CENTERED AT 227244.233 3815069.069 TO 224210.698 3810414.308  27a NAD 83/WGS 84 UTM ZONE 10 (meters) x-coordinate y-coordinate --------------------------------------------------------------------------- BEGINNING AT 775789.302 3810414.307 BY ARC CENTERED AT 778542.029 3815240.573 TO 775427.164 3810639.839 BY ARC CENTERED AT 776577.588 3816075.431 TO 774790.702 3810814.616 BY ARC CENTERED AT 776521.584 3816094.122 TO 773626.214 3811352.185 BY ARC CENTERED AT 773483.567 3816906.353 TO 772588.864 3811422.865 BY STRAIGHT LINE TO 772494.388 3811438.280 BY ARC CENTERED AT 773389.091 3816921.768 TO 771455.901 3811712.938 BY ARC CENTERED AT 770343.732 3817156.486 TO 769871.003 3811620.634 BY ARC CENTERED AT 768793.174 3817071.085 TO 769813.475 3811609.572 BY ARC CENTERED AT 768666.168 3817045.823 TO 768722.870 3811490.112 BY ARC CENTERED AT 768281.157 3817028.526 TO 768056.688 3811477.062 BY ARC CENTERED AT 767503.906 3817005.495 TO 766317.686 3811577.602 BY STRAIGHT LINE TO 765989.109 3811629.121 BY ARC CENTERED AT 766849.731 3817118.061 TO 765223.299 3811805.448 BY STRAIGHT LINE TO 764972.784 3811882.142 BY ARC CENTERED AT 766599.216 3817194.755  28a TO 764259.253 3812155.538 BY ARC CENTERED AT 766151.721 3817379.301 TO 763706.586 3812390.268 BY ARC CENTERED AT 765765.934 3817550.522 TO 763382.758 3812531.597 BY STRAIGHT LINE TO 763137.898 3812647.866 BY ARC CENTERED AT 764423.282 3818053.134 TO 762899.866 3812710.069 BY STRAIGHT LINE TO 762825.586 3812731.248 BY STRAIGHT LINE TO 762766.729 3812742.546 BY STRAIGHT LINE TO 762724.581 3812749.742 BY ARC CENTERED AT 760910.566 3818001.264 TO 761726.789 3812505.546 BY ARC CENTERED AT 760074.051 3817810.034 TO 759223.021 3812319.598 BY ARC CENTERED AT 758462.725 3817823.332 TO 759192.503 3812315.468 BY STRAIGHT LINE TO 759136.517 3812308.050 BY ARC CENTERED AT 758406.739 3817815.914 TO 757550.585 3812326.275 BY ARC CENTERED AT 758037.941 3817860.859 TO 757548.792 3812326.433 BY ARC CENTERED AT 756838.659 3817836.864 TO 756880.347 3812281.020 BY ARC CENTERED AT 756802.144 3817836.470 TO 756581.440 3812284.855 BY STRAIGHT LINE TO 756413.100 3812291.548 BY STRAIGHT LINE TO 756358.147 3812290.995 BY ARC CENTERED AT 756302.272 3817846.714 TO 756196.608 3812291.719 BY STRAIGHT LINE TO 755769.386 3812299.845 BY STRAIGHT LINE TO 755561.800 3812302.090 BY ARC CENTERED AT 753723.727 3817545.240 TO 754560.760 3812052.653  29a BY STRAIGHT LINE TO 754464.614 3812038.001 BY ARC CENTERED AT 753627.581 3817530.588 TO 754390.185 3812027.174 BY ARC CENTERED AT 753559.400 3817520.709 TO 753824.987 3811971.060 BY ARC CENTERED AT 752932.367 3817454.888 TO 753591.483 3811938.122 BY ARC CENTERED AT 752881.457 3817448.567 TO 752925.639 3811892.743 BY STRAIGHT LINE TO 752675.891 3811865.256 BY ARC CENTERED AT 752068.077 3817387.909 TO 752305.654 3811836.991 BY ARC CENTERED AT 751553.894 3817341.897 TO 751631.489 3811786.439 BY ARC CENTERED AT 751310.210 3817333.142 TO 751012.092 3811785.146 BY ARC CENTERED AT 750116.868 3817268.549 TO 750954.447 3811776.045\ BY STRAIGHT LINE TO 750883.225 3811765.184 BY ARC CENTERED AT 750045.646 3817257.688 TO 750546.324 3811724.293 BY ARC CENTERED AT 749947.828 3817247.964 TO 748974.676 3811777.853 BY ARC CENTERED AT 747657.708 3817175.513 TO 748586.238 3811697.651 BY ARC CENTERED AT 746974.934 3817014.872 TO 748466.835 3811662.922 BY STRAIGHT LINE TO 748252.854 3811603.273 BY ARC CENTERED AT 746760.953 3816955.223 TO 748247.160 3811601.689 BY ARC CENTERED AT 746198.188 3816766.072 TO 747194.703 3811300.169 BY STRAIGHT LINE TO 747111.583 3811285.015 BY ARC CENTERED AT 746115.068 3816750.918  30a TO 747106.287 3811284.052 BY ARC CENTERED AT 744716.557 3816299.860 TO 746715.454 3811115.890 BY ARC CENTERED AT 744583.859 3816246.722 TO 745464.336 3810760.932 BY ARC CENTERED AT 744185.683 3816167.796 TO 744491.984 3810620.246 BY STRAIGHT LINE TO 744396.084 3810614.951 BY ARC CENTERED AT 744089.783 3816162.501 TO 744195.404 3810607.505 BY ARC CENTERED AT 742826.309 3815992.179 TO 743656.365 3810498.533 BY STRAIGHT LINE TO 743550.272 3810482.503 BY ARC CENTERED AT 742720.216 3815976.149 TO 743024.424 3810428.483 BY STRAIGHT LINE TO 742573.729 3810403.769 BY ARC CENTERED AT 742269.521 3815951.435 TO 742554.696 3810402.758 BY STRAIGHT LINE TO 742116.717 3810380.248 BY ARC CENTERED AT 741831.542 3815928.925 TO 741730.770 3810373.839 BY ARC CENTERED AT 741059.403 3815889.127 TO 741313.533 3810338.942 BY ARC CENTERED AT 740289.824 3815799.817 TO 741289.085 3810334.416 BY STRAIGHT LINE TO 740966.984 3810275.525 BY ARC CENTERED AT 739967.723 3815740.926 TO 740532.967 3810213.754 BY STRAIGHT LINE TO 740436.161 3810203.854 BY ARC CENTERED AT 739870.917 3815731.026 TO 740126.316 3810180.899 BY STRAIGHT LINE TO 740020.971 3810176.052 BY ARC CENTERED AT 739269.403 3815680.984 TO 739600.136 3810134.837  31a BY ARC CENTERED AT 736966.344 3815026.899 TO 738526.071 3809694.321 BY STRAIGHT LINE TO 738419.835 3809663.248 BY ARC CENTERED AT 736860.108 3814995.826 TO 737266.568 3809454.714 BY STRAIGHT LINE TO 737092.684 3809441.959 BY ARC CENTERED AT 736686.224 3814983.071 TO 737056.015 3809439.391 BY ARC CENTERED AT 734078.026 3814129.883 TO 736608.945 3809183.815 BY ARC CENTERED AT 734023.056 3814101.367 TO 733488.141 3808571.177 BY ARC CENTERED AT 733936.519 3814109.055 TO 731687.399 3809028.642 BY ARC CENTERED AT 732189.168 3814561.938 TO 726925.629 3812783.093 BY ARC CENTERED AT 731904.055 3815249.752 TO 726350.103 3815400.605 BY ARC CENTERED AT 730593.702 3818986.829 TO 726014.024 3815841.088 BY ARC CENTERED AT 729829.145 3819880.146 TO 724724.703 3817686.107 BY ARC CENTERED AT 729802.084 3819942.063 TO 724393.795 3818669.450 BY STRAIGHT LINE TO 724344.503 3818841.607 BY ARC CENTERED AT 727834.135 3823164.986 TO 724252.699 3818917.345 BY ARC CENTERED AT 727344.330 3823533.724 TO 723839.935 3819222.303 BY ARC CENTERED AT 726086.955 3824303.645 TO 723639.852 3819315.577 BY ARC CENTERED AT 724648.657 3824779.225 TO 723584.277 3819326.131 BY ARC CENTERED AT 724424.730 3824818.196  32a TO 720996.109 3820446.275 BY ARC CENTERED AT 723598.684 3825355.016 TO 720639.233 3820652.805 BY ARC CENTERED AT 719364.571 3826060.612 TO 719095.785 3820511.117 BY ARC CENTERED AT 718605.559 3826045.448 TO 718533.330 3820489.918 BY ARC CENTERED AT 718587.953 3826045.649 TO 717793.969 3820546.674 BY ARC CENTERED AT 718022.234 3826097.983 TO 715435.576 3821180.836 BY ARC CENTERED AT 717319.634 3826407.638 TO 713441.640 3822428.907 BY ARC CENTERED AT 716801.868 3826853.611 TO 713064.050 3822742.911 BY ARC CENTERED AT 716357.999 3827217.175 TO 711506.564 3824509.277 BY ARC CENTERED AT 715337.049 3828533.767 TO 709781.071 3828549.230 BY ARC CENTERED AT 715337.068 3828543.941 TO 710206.335 3830675.775 BY ARC CENTERED AT 715659.584 3831739.360 TO 711743.749 3835680.854 BY ARC CENTERED AT 717027.493 3833962.952 TO 712399.413 3837037.039 BY ARC CENTERED AT 717677.665 3835302.337 TO 712436.238 3837145.318 BY ARC CENTERED AT 717846.464 3835880.964 TO 712509.559 3837425.820 BY STRAIGHT LINE TO 712539.480 3837529.186 BY ARC CENTERED AT 717876.385 3835984.330 TO 712851.506 3838354.925 BY STRAIGHT LINE TO 712936.578 3838622.294 BY STRAIGHT LINE TO 713008.493 3838895.093  33a BY ARC CENTERED AT 718380.949 3837478.812 TO 713113.022 3839244.622 BY STRAIGHT LINE TO 713174.123 3839426.903 BY ARC CENTERED AT 718570.910 3838106.363 TO 713216.716 3839590.190 BY STRAIGHT LINE TO 713258.255 3839740.078 BY ARC CENTERED AT 718612.449 3838256.251 TO 713267.907 3839774.477 BY STRAIGHT LINE TO 713670.847 3841192.928 BY ARC CENTERED AT 719015.389 3839674.702 TO 713671.837 3841196.407 BY STRAIGHT LINE TO 713792.630 3841620.578 BY STRAIGHT LINE TO 713793.633 3841627.194 BY ARC CENTERED AT 719286.771 3840793.782 TO 713860.818 3841988.842 BY ARC CENTERED AT 718582.506 3844917.117 TO 713771.899 3842137.333 BY ARC CENTERED AT 717271.672 3846452.507 TO 712401.922 3843777.686 BY ARC CENTERED AT 717237.919 3846513.059 TO 712255.566 3844054.342 BY ARC CENTERED AT 717198.664 3846591.055 TO 712132.897 3844309.139 BY ARC CENTERED AT 715883.714 3848407.981 TO 710362.349 3849027.388 BY ARC CENTERED AT 715888.106 3848448.470 TO 710370.353 3849099.268 BY ARC CENTERED AT 715903.277 3848593.414 TO 711088.337 3851365.686 BY ARC CENTERED AT 716401.919 3849742.422 TO 711271.231 3851874.364 BY ARC CENTERED AT 716455.023 3849875.005 TO 711350.032 3852067.767 BY ARC CENTERED AT 716652.346 3850408.067  34a TO 711644.412 3852814.254 BY ARC CENTERED AT 716999.609 3851334.050 TO 711811.166 3853321.308 BY ARC CENTERED AT 717209.570 3852007.394 TO 712014.164 3853976.375 BY STRAIGHT LINE TO 712097.003 3854367.352 BY STRAIGHT LINE TO 712170.171 3854725.633 BY ARC CENTERED AT 717613.815 3853613.936 TO 712276.383 3855156.972 BY STRAIGHT LINE TO 712299.327 3855321.159 BY ARC CENTERED AT 717801.861 3854552.227 TO 712329.919 3855515.027 BY STRAIGHT LINE TO 712458.863 3856247.861 BY STRAIGHT LINE TO 712527.744 3856639.835 BY ARC CENTERED AT 717999.893 3855678.208 TO 712575.474 3856880.212 BY STRAIGHT LINE TO 712607.925 3857026.658 BY ARC CENTERED AT 718129.264 3856407.019 TO 712670.434 3857441.579 BY ARC CENTERED AT 715616.589 3862152.132 TO 712417.133 3857609.818 BY ARC CENTERED AT 715317.231 3862348.865 TO 710780.684 3859141.237 BY ARC CENTERED AT 712594.139 3864392.953 TO 707069.239 3864979.990 BY ARC CENTERED AT 712620.739 3864756.427 TO 707528.378 3866978.363 BY ARC CENTERED AT 713024.114 3867794.467 TO 708317.849 3870747.467 BY ARC CENTERED AT 713722.734 3869460.471 TO 708384.264 3870999.910 BY ARC CENTERED AT 713841.354 3869956.213 TO 708437.604 3871247.963 BY ARC CENTERED AT 713914.912 3870316.175  35a TO 708607.158 3871958.394 BY ARC CENTERED AT 714002.680 3870632.695 TO 708632.667 3872058.209 BY ARC CENTERED AT 714102.519 3871083.607 TO 708837.009 3872856.609 BY ARC CENTERED AT 714302.155 3871855.954 TO 709041.849 3873644.339 BY STRAIGHT LINE TO 709046.027 3873660.496 BY ARC CENTERED AT 714425.164 3872269.807 TO 709056.291 3873699.609 BY STRAIGHT LINE TO 709200.532 3874241.233 BY ARC CENTERED AT 714677.160 3873305.453 TO 709373.608 3874961.192 BY STRAIGHT LINE TO 709404.183 3875059.127 BY STRAIGHT LINE TO 709404.610 3875060.934 BY ARC CENTERED AT 714889.160 3874172.761 TO 709567.557 3875769.532 BY ARC CENTERED AT 715039.399 3874806.162 TO 709671.594 3876239.970 BY ARC CENTERED AT 715187.678 3875575.174 TO 709793.480 3876906.251 BY ARC CENTERED AT 715301.768 3876179.683 TO 709905.553 3877502.559 BY ARC CENTERED AT 715404.233 3876706.534 TO 709956.268 3877796.859 BY STRAIGHT LINE TO 710027.502 3878152.790 BY ARC CENTERED AT 715475.467 3877062.465 TO 710049.159 3878255.912 BY STRAIGHT LINE TO 710075.358 3878375.033 BY ARC CENTERED AT 715572.557 3877568.845 TO 710105.503 3878559.026 BY STRAIGHT LINE TO 710153.734 3878825.321 BY ARC CENTERED AT 715708.802 3878927.085 TO 710156.994 3879142.863  36a BY STRAIGHT LINE TO 710168.652 3879442.815 BY ARC CENTERED AT 715720.460 3879227.037 TO 710225.790 3880050.288 BY STRAIGHT LINE TO 710250.680 3880216.408 BY STRAIGHT LINE TO 710274.420 3880580.677 BY ARC CENTERED AT 715818.658 3880219.346 TO 710370.868 3881310.548 BY ARC CENTERED AT 715889.019 3880663.132 TO 710374.729 3881342.648 BY STRAIGHT LINE TO 710424.709 3881748.234 BY STRAIGHT LINE TO 710427.782 3882074.301 BY ARC CENTERED AT 715983.535 3882021.940 TO 710429.853 3882182.405 BY STRAIGHT LINE TO 710438.670 3882487.553 BY STRAIGHT LINE TO 710442.781 3882881.033 BY ARC CENTERED AT 715998.478 3882822.977 TO 710445.506 3883006.391 BY STRAIGHT LINE TO 710461.851 3883501.242 BY STRAIGHT LINE TO 710452.310 3883858.937 BY ARC CENTERED AT 716006.335 3884007.079 TO 710450.463 3883969.363 BY STRAIGHT LINE TO 710447.431 3884415.970 BY STRAIGHT LINE TO 710441.662 3884874.462 BY STRAIGHT LINE TO 710425.441 3885230.264 BY STRAIGHT LINE TO 710379.209 3885521.507 BY ARC CENTERED AT 715866.505 3886392.553 TO 710350.852 3885724.188 BY STRAIGHT LINE TO 710315.963 3886012.110 BY STRAIGHT LINE TO 710258.937 3886354.117 BY ARC CENTERED AT 715739.276 3887267.910 TO 710245.774 3886436.902 BY STRAIGHT LINE TO 710244.065 3886448.200 BY ARC CENTERED AT 710951.358 3891958.996 TO 707414.325 3887674.310  37a BY ARC CENTERED AT 704955.335 3892656.529 TO 706602.084 3887350.179 BY ARC CENTERED AT 704874.137 3892630.646 TO 703054.041 3887381.228 BY ARC CENTERED AT 704828.461 3892646.261 TO 702794.855 3887475.808 BY ARC CENTERED AT 702960.143 3893029.349 TO 698858.069 3889282.067 BY ARC CENTERED AT 699448.634 3894806.591 TO 697085.236 3889778.322 BY ARC CENTERED AT 698779.669 3895069.639 TO 694423.690 3891620.787 BY ARC CENTERED AT 698731.006 3895130.226 TO 694007.632 3892204.671 BY ARC CENTERED AT 696754.559 3897034.115 TO 693861.694 3892290.649 BY ARC CENTERED AT 696013.752 3897412.932 TO 692834.505 3892856.451 BY ARC CENTERED AT 694955.189 3897991.802 TO 690847.838 3894250.304 BY ARC CENTERED AT 694416.260 3898508.884 TO 690539.606 3894528.848 BY ARC CENTERED AT 693647.631 3899134.205 TO 690377.903 3894642.211 BY ARC CENTERED AT 693363.939 3899327.584 TO 688982.985 3895910.512 BY ARC CENTERED AT 692473.629 3900233.074 TO 687170.354 3898576.447 BY ARC CENTERED AT 691415.122 3902161.288 TO 686836.572 3899013.906 BY ARC CENTERED AT 691202.902 3902449.644 TO 686172.500 3900090.790 BY ARC CENTERED AT 690717.889 3903285.876 TO 685669.866 3900964.970  38a BY ARC CENTERED AT 690698.020 3903328.613 TO 685684.315 3905722.751 BY ARC CENTERED AT 691224.582 3905304.926 TO 686768.879 3908623.939 BY ARC CENTERED AT 691292.141 3905397.604 TO 686978.612 3908899.404 BY ARC CENTERED AT 692295.225 3907286.096 TO 687771.913 3910512.361 BY ARC CENTERED AT 693078.308 3908865.755 TO 687949.902 3911003.182 BY STRAIGHT LINE TO 687970.252 3911052.008 BY STRAIGHT LINE TO 688032.802 3911246.771 BY STRAIGHT LINE TO 688113.976 3911551.580 BY STRAIGHT LINE TO 688321.625 3912472.172 BY ARC CENTERED AT 693741.462 3911249.672 TO 688372.267 3912678.267 BY ARC CENTERED AT 693845.251 3911721.405 TO 688440.004 3913006.876 BY STRAIGHT LINE TO 688440.714 3913009.864 BY ARC CENTERED AT 693469.621 3915371.904 TO 687917.799 3915587.319 BY ARC CENTERED AT 693438.997 3916208.209 TO 688087.528 3917701.835 BY ARC CENTERED AT 693474.038 3916339.980 TO 688129.459 3917858.073 BY ARC CENTERED AT 693152.707 3920232.123 TO 687856.315 3918553.623 BY ARC CENTERED AT 692538.205 3921545.117 TO 687784.277 3918669.477 BY ARC CENTERED AT 687359.908 3924209.247 TO 686272.021 3918760.794 BY ARC CENTERED AT 686392.993 3924315.477 TO 684578.823 3919064.008 BY ARC CENTERED AT 686178.638 3924384.697  39a TO 683273.491 3919648.743 BY ARC CENTERED AT 685874.329 3924558.405 TO 682520.124 3920129.134 BY ARC CENTERED AT 685795.672 3924616.886 TO 682386.580 3920229.720 BY ARC CENTERED AT 685196.995 3925022.496 TO 682274.344 3920297.324 BY ARC CENTERED AT 683408.572 3925736.319 TO 682052.684 3920348.304 BY ARC CENTERED AT 681663.332 3925890.645 TO 681940.888 3920341.582 BY ARC CENTERED AT 681213.699 3925849.788 TO 678998.539 3920754.476 BY ARC CENTERED AT 681192.581 3925858.917 TO 678473.082 3921013.975 BY ARC CENTERED AT 681059.716 3925931.135 TO 677049.003 3922086.227 BY ARC CENTERED AT 680632.448 3926332.173 TO 675936.999 3923362.006 BY ARC CENTERED AT 680607.186 3926371.738 TO 675874.384 3923461.459 BY ARC CENTERED AT 679782.821 3927410.289 TO 675221.011 3924238.692 BY ARC CENTERED AT 679405.725 3927893.457 TO 675158.212 3924311.869 BY ARC CENTERED AT 678096.157 3929027.547 TO 674895.775 3924485.885 BY ARC CENTERED AT 677980.877 3929106.630 TO 674599.696 3924697.917 BY ARC CENTERED AT 677895.392 3929170.894 TO 673321.907 3926016.156 BY ARC CENTERED AT 677472.493 3929709.633 TO 672864.616 3926605.345 BY ARC CENTERED AT 675980.120 3931205.646  40a TO 672029.807 3927298.708 BY ARC CENTERED AT 675879.873 3931304.470 TO 671866.766 3927462.061 BY ARC CENTERED AT 675338.324 3931799.966 TO 670704.672 3928734.284 BY ARC CENTERED AT 674503.682 3932788.499 TO 670351.490 3929096.828 BY ARC CENTERED AT 673297.468 3933807.491 TO 668277.246 3931427.049 BY ARC CENTERED AT 672678.736 3934817.627 TO 668208.008 3931518.881 BY ARC CENTERED AT 672001.204 3935578.536 TO 667105.812 3932950.938 BY ARC CENTERED AT 671785.543 3935945.809 TO 666835.872 3933421.944 BY ARC CENTERED AT 670193.180 3937848.864 TO 665778.142 3934475.946 BY ARC CENTERED AT 670141.798 3937915.080 TO 664658.549 3937018.910 BY ARC CENTERED AT 669415.975 3939888.760 TO 664649.125 3937034.592 BY ARC CENTERED AT 668708.778 3940827.790 TO 664550.319 3937143.180 BY ARC CENTERED AT 668436.494 3941113.920 TO 663420.771 3938724.011 BY ARC CENTERED AT 668073.592 3941760.522 TO 663142.569 3939200.415 BY ARC CENTERED AT 667374.600 3942800.283 TO 663115.229 3939232.805 BY ARC CENTERED AT 667082.868 3943122.147 TO 663050.378 3939300.085 BY ARC CENTERED AT 663494.350 3944838.318 TO 662193.971 3939436.638 BY ARC CENTERED AT 663385.178 3944863.438  41a TO 660268.419 3940263.987 BY ARC CENTERED AT 663173.303 3945000.102 TO 659828.689 3940563.584 BY ARC CENTERED AT 662115.560 3945627.116 TO 659209.173 3940891.923 BY ARC CENTERED AT 659745.383 3946421.988 TO 659131.838 3940899.969 BY ARC CENTERED AT 659362.439 3946451.181 TO 658789.247 3940924.827 BY ARC CENTERED AT 659333.957 3946454.061 TO 658386.961 3940979.361 BY ARC CENTERED AT 658980.845 3946503.530 TO 655712.899 3942010.239 BY ARC CENTERED AT 656725.390 3947473.205 TO 654364.930 3942443.556 BY ARC CENTERED AT 655051.159 3947957.015 TO 654227.407 3942462.421 BY ARC CENTERED AT 654953.826 3947970.728 TO 652443.861 3943013.994 BY ARC CENTERED AT 654877.705 3948008.545 TO 652163.640 3943160.557 BY ARC CENTERED AT 654854.083 3948021.694 TO 650170.497 3945032.855 BY ARC CENTERED AT 654822.803 3948070.154 TO 649595.654 3946187.058 BY ARC CENTERED AT 654811.443 3948101.394 TO 649346.261 3947100.932 BY ARC CENTERED AT 653709.776 3950540.245 TO 648336.332 3949127.716 BY ARC CENTERED AT 652561.324 3952735.843 TO 647724.303 3950002.281 BY ARC CENTERED AT 652199.780 3953294.581 TO 646876.477 3951703.486 BY ARC CENTERED AT 652073.991 3953666.898  42a TO 646520.803 3953490.139 BY ARC CENTERED AT 652070.458 3953755.601 TO 646516.376 3953901.566 BY ARC CENTERED AT 652006.589 3954754.029 TO 646462.770 3954386.319 BY ARC CENTERED AT 651985.970 3954989.147 TO 646432.953 3955171.172 BY ARC CENTERED AT 651930.350 3955976.006 TO 646398.139 3955462.417 BY ARC CENTERED AT 650924.989 3958683.715 TO 645389.470 3958207.101 BY ARC CENTERED AT 646593.835 3963630.996 TO 644807.527 3958369.985 BY ARC CENTERED AT 646406.039 3963691.065 TO 641257.456 3961602.708 BY ARC CENTERED AT 645551.821 3965127.984 TO 640585.035 3962637.968 BY ARC CENTERED AT 644364.689 3966710.235 TO 639191.120 3964684.570 BY ARC CENTERED AT 643137.426 3968595.555 TO 638982.266 3964907.224 BY ARC CENTERED AT 641823.665 3969681.697 TO 638775.176 3965036.716 BY ARC CENTERED AT 640945.043 3970151.480 TO 637904.127 3965501.538 BY ARC CENTERED AT 639576.002 3970800.025 TO 634613.911 3968300.667 BY ARC CENTERED AT 638064.107 3972655.582 TO 634604.919 3968307.806 BY ARC CENTERED AT 637713.219 3972912.978 TO 632468.922 3971078.181 BY ARC CENTERED AT 637701.411 3972946.386 TO 632184.715 3973606.081 BY ARC CENTERED AT 637093.112 3976209.304  43a TO 631540.741 3976008.531 BY ARC CENTERED AT 635660.876 3979735.946 TO 630226.379 3980891.533 BY ARC CENTERED AT 631995.289 3986158.420 TO 629158.572 3981381.164 BY ARC CENTERED AT 629236.780 3986936.614 TO 628547.039 3981423.594 BY ARC CENTERED AT 628492.497 3986979.326 TO 623739.447 3984102.236 BY ARC CENTERED AT 627909.281 3987773.968 TO 622489.106 3986552.970 BY ARC CENTERED AT 627102.735 3989648.703 TO 621819.020 3987930.712 BY ARC CENTERED AT 626918.717 3990135.758 TO 621622.628 3988456.300 BY ARC CENTERED AT 625265.356 3992651.496 TO 621143.783 3988925.671 BY ARC CENTERED AT 625078.889 3992847.925 TO 620876.468 3989213.534 BY ARC CENTERED AT 625071.766 3992856.145 TO 620001.316 3990584.653 BY ARC CENTERED AT 624615.674 3993679.300 TO 619543.251 3991412.218 BY ARC CENTERED AT 624198.248 3994445.391 TO 619038.174 3992385.592 BY ARC CENTERED AT 623778.882 3995282.974 TO 618342.576 3994135.928 BY ARC CENTERED AT 621820.171 3998468.995 TO 617399.169 3995103.898 BY ARC CENTERED AT 621532.533 3998816.638 TO 616249.923 3997095.254 BY ARC CENTERED AT 620591.809 4000561.831 TO 616041.882 3997373.210 BY ARC CENTERED AT 619486.854 4001732.259  44a TO 614755.341 3998819.886 BY ARC CENTERED AT 617434.952 4003687.002 TO 613721.479 3999554.296 BY ARC CENTERED AT 617412.188 4003707.344 TO 613429.033 3999833.894 BY ARC CENTERED AT 616973.695 4004112.271 TO 613039.921 4000188.682 BY ARC CENTERED AT 616966.097 4004119.874 TO 612503.970 4000809.503 BY ARC CENTERED AT 616689.890 4004462.886 TO 611951.191 4001562.220 BY ARC CENTERED AT 615594.555 4005756.863 TO 611552.113 4001945.329 BY ARC CENTERED AT 614393.977 4006719.524 TO 611264.486 4002128.727 BY ARC CENTERED AT 613391.465 4007261.474 TO 610353.275 4002609.750 BY ARC CENTERED AT 611961.889 4007927.785 TO 607734.961 4004321.927 BY ARC CENTERED AT 610279.902 4009260.794 TO 607554.814 4004418.994 BY ARC CENTERED AT 610123.759 4009345.418 TO 607118.130 4004672.589 BY ARC CENTERED AT 608954.708 4009916.263 TO 606845.739 4004776.089 BY ARC CENTERED AT 607120.669 4010325.283 TO 606547.180 4004798.960 BY ARC CENTERED AT 606842.007 4010347.132 TO 603556.556 4005866.625 BY ARC CENTERED AT 606465.643 4010600.159 TO 602807.436 4006418.454 BY ARC CENTERED AT 605334.097 4011366.698 TO 601843.786 4007043.867 BY ARC CENTERED AT 604444.048 4011953.834  45a TO 600711.264 4007838.562 BY ARC CENTERED AT 603961.085 4012344.980 TO 598809.256 4010264.645 BY ARC CENTERED AT 600233.389 4015635.025 TO 598196.257 4010465.961 BY ARC CENTERED AT 599789.479 4015788.627 TO 594364.936 4014587.184 BY ARC CENTERED AT 598407.338 4018398.761 TO 592892.963 4017719.938 BY ARC CENTERED AT 598388.294 4018538.760 TO 593055.281 4020096.999 BY ARC CENTERED AT 598037.918 4022555.142 TO 592492.689 4022900.928 BY ARC CENTERED AT 597911.738 4024126.914 TO 592372.036 4023701.669 BY ARC CENTERED AT 597863.112 4024548.555 TO 592337.912 4023964.346 BY ARC CENTERED AT 597858.943 4024586.722 TO 592302.979 4024566.725 BY ARC CENTERED AT 597855.436 4024765.111 TO 592300.974 4024895.836 BY ARC CENTERED AT 597855.926 4024787.922 TO 592305.694 4025041.015 BY ARC CENTERED AT 597806.371 4025823.117 TO 592252.260 4025968.000 BY ARC CENTERED AT 597807.511 4025876.751 TO 592269.484 4026323.283 BY ARC CENTERED AT 597818.855 4026594.605 TO 592262.986 4026632.722 BY ARC CENTERED AT 597185.219 4029209.688 TO 591663.891 4028589.955 BY ARC CENTERED AT 596862.559 4030550.308 TO 591310.499 4030759.509 BY ARC CENTERED AT 595676.710 4034195.399  46a TO 590680.815 4031764.315 BY ARC CENTERED AT 595203.093 4034992.029 TO 589656.646 4035317.705 BY ARC CENTERED AT 594615.172 4037824.128 TO 589189.374 4036628.363 BY ARC CENTERED AT 594269.427 4038878.296 TO 588736.680 4038370.512 BY ARC CENTERED AT 593201.995 4041676.582 TO 588702.060 4038417.791 BY ARC CENTERED AT 593152.510 4041743.844 TO 588361.938 4038929.674 BY ARC CENTERED AT 593132.746 4041777.221 TO 587713.015 4040554.254 BY ARC CENTERED AT 593075.528 4042007.728 TO 587840.991 4043870.189 BY ARC CENTERED AT 592009.874 4047543.001 TO 587643.046 4044107.896 BY ARC CENTERED AT 591383.222 4048216.450 TO 585903.417 4047299.461 BY ARC CENTERED AT 591146.248 4049138.443 TO 585702.791 4050251.056 BY ARC CENTERED AT 591149.319 4049153.575 TO 587441.256 4053291.135 BY ARC CENTERED AT 592845.917 4052003.202 TO 587998.846 4054718.904 BY ARC CENTERED AT 592937.252 4052173.068 TO 588793.890 4055874.647 BY ARC CENTERED AT 593104.820 4052369.648 TO 589247.850 4056368.763 BY ARC CENTERED AT 594605.217 4054896.432 TO 589250.409 4056378.042 BY STRAIGHT LINE TO 582379.149 4084018.895 BY ARC CENTERED AT 583177.995 4089517.166 TO 582248.486 4084039.470  47a BY ARC CENTERED AT 583000.119 4089544.394 TO 581593.254 4084169.465 BY ARC CENTERED AT 582863.986 4089578.196 TO 581353.988 4084231.324 BY ARC CENTERED AT 582831.989 4089587.129 TO 581191.920 4084278.710 BY ARC CENTERED AT 582467.896 4089686.207 TO 580639.395 4084439.711 BY ARC CENTERED AT 581327.979 4089952.876 TO 579389.094 4084746.163 BY ARC CENTERED AT 580126.481 4090253.013 TO 579210.488 4084773.041 BY ARC CENTERED AT 579589.902 4090316.071 TO 576749.403 4085541.063 BY ARC CENTERED AT 579546.625 4090341.551 TO 576440.449 4085734.946 BY ARC CENTERED AT 579378.901 4090450.308 TO 576376.937 4085775.123 BY ARC CENTERED AT 579286.597 4090508.306 TO 576058.772 4085986.107 BY ARC CENTERED AT 578382.694 4091032.742 TO 576028.116 4086000.337 BY ARC CENTERED AT 577762.146 4091278.810 TO 575550.505 4086181.970 BY ARC CENTERED AT 576980.158 4091550.883 TO 573251.758 4087431.639 BY ARC CENTERED AT 575379.773 4092563.957 TO 571498.310 4088588.611 BY ARC CENTERED AT 575298.720 4092641.513 TO 570956.630 4089175.191 BY ARC CENTERED AT 573817.175 4093938.217 TO 569565.959 4090361.026 BY ARC CENTERED AT 572693.466 4094953.175 TO 568312.553 4091536.051  48a BY ARC CENTERED AT 572026.883 4095667.986 TO 568253.589 4091589.826 BY ARC CENTERED AT 570565.143 4096642.138 TO 566289.818 4093093.796 BY ARC CENTERED AT 569097.820 4097877.986 TO 564508.212 4094756.751 BY ARC CENTERED AT 569075.064 4097921.083 TO 564192.357 4095269.988 BY ARC CENTERED AT 568899.648 4098221.351 TO 564014.033 4095575.619 BY ARC CENTERED AT 568742.013 4098493.724 TO 563515.333 4096609.327 BY ARC CENTERED AT 567225.796 4100744.735 TO 562745.501 4097458.995 BY ARC CENTERED AT 566539.667 4101517.743 TO 561693.913 4098799.691 BY ARC CENTERED AT 566417.755 4101724.491 TO 561585.960 4098981.702 BY ARC CENTERED AT 565974.657 4102388.823 TO 561197.399 4099552.109 BY ARC CENTERED AT 565355.859 4103236.719 TO 560530.529 4100482.572 BY ARC CENTERED AT 565062.902 4103696.095 TO 560173.678 4101057.037 BY ARC CENTERED AT 564708.877 4104266.571 TO 559922.048 4101446.038 BY ARC CENTERED AT 559024.796 4106929.110 TO 558907.385 4101374.351 BY ARC CENTERED AT 558889.522 4106930.322 TO 556418.422 4101954.099 BY ARC CENTERED AT 558874.164 4106937.919 TO 555437.793 4102572.087 BY ARC CENTERED AT 558665.242 4107094.554 TO 555158.486 4102785.053  49a BY ARC CENTERED AT 558557.028 4107180.397 TO 553081.296 4106239.392 BY ARC CENTERED AT 558264.128 4108241.237 TO 552737.895 4107666.886 BY ARC CENTERED AT 556686.411 4111575.639 TO 552592.563 4107819.371 BY ARC CENTERED AT 556526.168 4111743.131 TO 551227.730 4110071.098 BY ARC CENTERED AT 553491.714 4115144.905 TO 550239.761 4110640.026 BY ARC CENTERED AT 553476.851 4115155.597 TO 549105.522 4111726.221 BY ARC CENTERED AT 553303.895 4115365.287 TO 548289.138 4112973.354 BY ARC CENTERED AT 553024.731 4115879.088 TO 547596.300 4114695.334 BY ARC CENTERED AT 552726.851 4116827.606 TO 547176.604 4116574.834 BY ARC CENTERED AT 552619.894 4117688.265 TO 547118.546 4116910.897 BY ARC CENTERED AT 552403.031 4118626.516 TO 546895.887 4117891.330 BY ARC CENTERED AT 552383.975 4118757.369 TO 546858.239 4118178.247 BY ARC CENTERED AT 551686.889 4120926.570 TO 546403.667 4119207.065 BY ARC CENTERED AT 551667.305 4120985.617 TO 546379.701 4119279.634 BY ARC CENTERED AT 551404.997 4121649.346 TO 546199.744 4119706.546 BY ARC CENTERED AT 551119.473 4122288.289 TO 545700.561 4123514.881 BY ARC CENTERED AT 551141.521 4122390.119 TO 546298.451 4125112.949  50a BY ARC CENTERED AT 551744.032 4124010.779 TO 546453.326 4125707.119 BY ARC CENTERED AT 551909.502 4124658.652 TO 546864.709 4126986.569 BY STRAIGHT LINE TO 546889.049 4127342.000 BY ARC CENTERED AT 552432.067 4126962.406 TO 546910.582 4127580.743 BY STRAIGHT LINE TO 546950.229 4127934.774 BY ARC CENTERED AT 552471.714 4127316.437 TO 546973.032 4128112.448 BY ARC CENTERED AT 552529.032 4128111.268 TO 547025.558 4128873.439 BY STRAIGHT LINE TO 547083.737 4129293.537 BY ARC CENTERED AT 552587.211 4128531.366 TO 547100.933 4129408.801 BY ARC CENTERED AT 552634.562 4128910.716 TO 547103.359 4129435.051 BY STRAIGHT LINE TO 547166.849 4130104.806 BY ARC CENTERED AT 552698.052 4129580.471 TO 547174.239 4130177.654 BY ARC CENTERED AT 552729.191 4130069.739 TO 547201.399 4130628.894 BY STRAIGHT LINE TO 547257.974 4131188.190 BY STRAIGHT LINE TO 547295.858 4131615.119 BY ARC CENTERED AT 552830.112 4131124.025 TO 547309.054 4131746.160 BY STRAIGHT LINE TO 547340.052 4132021.248 BY ARC CENTERED AT 552861.110 4131399.113 TO 547400.096 4132422.082 BY ARC CENTERED AT 552953.842 4132263.824 TO 547410.837 4132643.609 BY ARC CENTERED AT 552882.346 4133608.871 TO 547355.418 4133041.246 BY ARC CENTERED AT 552432.062 4135298.859  51a TO 547022.509 4134031.628 BY ARC CENTERED AT 552325.563 4135688.962 TO 546907.124 4134460.280 BY ARC CENTERED AT 551217.203 4137966.326 TO 546418.555 4135165.949 BY ARC CENTERED AT 551018.539 4138281.921 TO 546200.572 4135514.914 BY ARC CENTERED AT 550926.860 4138435.759 TO 546130.358 4135631.708 BY ARC CENTERED AT 550883.381 4138508.843 TO 545996.289 4135865.840 BY ARC CENTERED AT 550852.050 4138565.973 TO 545827.135 4136195.453 BY ARC CENTERED AT 550790.046 4138693.182 TO 545267.646 4138083.076 BY ARC CENTERED AT 550409.220 4140188.628 TO 545176.912 4138319.914 BY ARC CENTERED AT 549984.055 4141105.684 TO 544659.488 4139518.826 BY ARC CENTERED AT 549843.189 4141518.420 TO 544561.236 4139795.021 BY ARC CENTERED AT 549076.680 4143032.288 TO 543952.276 4140885.285 BY ARC CENTERED AT 549066.959 4143055.344 TO 543547.326 4142420.691 BY ARC CENTERED AT 548995.473 4143510.107 TO 543442.659 4143321.968 BY ARC CENTERED AT 548989.823 4143635.195 TO 543437.968 4143849.768 BY ARC CENTERED AT 545282.485 4149090.655 TO 542623.291 4144212.354 BY ARC CENTERED AT 544245.990 4149526.108 TO 540088.565 4145840.331 BY ARC CENTERED AT 544128.414 4149654.614  52a TO 539055.242 4147389.208 BY ARC CENTERED AT 542928.797 4151372.261 TO 537517.005 4150114.627 BY ARC CENTERED AT 542775.298 4151908.921 TO 537322.802 4150841.485 BY ARC CENTERED AT 542574.850 4152653.976 TO 537282.444 4150962.948 BY ARC CENTERED AT 542244.760 4153461.859 TO 536714.398 4152928.721 BY ARC CENTERED AT 542227.782 4153615.552 TO 536819.653 4154888.847 BY ARC CENTERED AT 542359.221 4154461.851 TO 536871.741 4155331.733 BY ARC CENTERED AT 542380.325 4154607.417 TO 537162.307 4156515.668 BY ARC CENTERED AT 542525.412 4157966.957 TO 537095.633 4156789.401 BY ARC CENTERED AT 542329.589 4158653.494 TO 536961.573 4157220.478 BY ARC CENTERED AT 542205.632 4159055.955 TO 536650.814 4159170.543 BY ARC CENTERED AT 541867.982 4161081.117 TO 538372.299 4165399.604 BY ARC CENTERED AT 542462.037 4161638.863 TO 538964.558 4165955.897 BY ARC CENTERED AT 544094.652 4163822.525 TO 539000.404 4166040.130 BY STRAIGHT LINE TO 539014.130 4166630.190 BY ARC CENTERED AT 544568.627 4166500.982 TO 539014.998 4166663.294 BY STRAIGHT LINE TO 539029.062 4167144.474 BY ARC CENTERED AT 544264.881 4169003.326 TO 538814.703 4167924.117 BY ARC CENTERED AT 544152.667 4169465.309  53a TO 538747.184 4170749.787 BY STRAIGHT LINE TO 538697.811 4171027.752 BY STRAIGHT LINE TO 538645.952 4171273.828 BY STRAIGHT LINE TO 538580.873 4171507.894 BY ARC CENTERED AT 543933.817 4172996.224 TO 538549.239 4171626.751 BY STRAIGHT LINE TO 538450.456 4172015.152 BY ARC CENTERED AT 543835.034 4173384.625 TO 538414.077 4172167.103 BY STRAIGHT LINE TO 538273.634 4172792.418 BY STRAIGHT LINE TO 538158.407 4173218.461 BY ARC CENTERED AT 543521.710 4174669.017 TO 538052.664 4173689.901 BY STRAIGHT LINE TO 537940.932 4174314.002 BY ARC CENTERED AT 543409.978 4175293.118 TO 537902.884 4174557.555 BY STRAIGHT LINE TO 537832.051 4175087.875 BY ARC CENTERED AT 543339.145 4175823.438 TO 537803.112 4175352.830 BY STRAIGHT LINE TO 537737.122 4176129.108 BY ARC CENTERED AT 543273.155 4176599.716 TO 537721.834 4176371.749 BY STRAIGHT LINE TO 537719.236 4176435.010 BY ARC CENTERED AT 543237.600 4177080.606 TO 537697.877 4176655.627 BY STRAIGHT LINE TO 537679.926 4176889.620 BY STRAIGHT LINE TO 537632.562 4177151.955 BY ARC CENTERED AT 543100.162 4178139.118 TO 537552.618 4177832.697 BY STRAIGHT LINE TO 537543.093 4178005.148 BY STRAIGHT LINE TO 537517.303 4178225.511 BY ARC CENTERED AT 543035.639 4178871.345 TO 537498.510 4178413.805 BY STRAIGHT LINE TO 537440.778 4179112.475  54a BY ARC CENTERED AT 542977.907 4179570.015 TO 537437.744 4179150.816 BY ARC CENTERED AT 542546.440 4181334.931 TO 537334.808 4179409.307 BY ARC CENTERED AT 542466.366 4181539.154 TO 536985.304 4180629.705 BY STRAIGHT LINE TO 536981.012 4180655.572 BY ARC CENTERED AT 542462.074 4181565.021 TO 536910.201 4181350.916 BY STRAIGHT LINE TO 536414.395 4182722.401 BY ARC CENTERED AT 541254.386 4185450.701 TO 536322.661 4182891.947 BY ARC CENTERED AT 540691.339 4186324.699 TO 536217.410 4183030.295 BY ARC CENTERED AT 539618.846 4187423.400 TO 536102.380 4183121.818 BY ARC CENTERED AT 539601.913 4187437.187 TO 535735.930 4183446.785 BY ARC CENTERED AT 539582.510 4187455.894 TO 534734.955 4184741.056 BY ARC CENTERED AT 536798.717 4189899.546 TO 533262.820 4185613.923 BY ARC CENTERED AT 536617.726 4190042.663 TO 532578.390 4186227.837 BY ARC CENTERED AT 535891.552 4190687.892 TO 531839.019 4186887.088 BY ARC CENTERED AT 533732.196 4192110.594 TO 530752.971 4187420.887 BY ARC CENTERED AT 532870.180 4192557.672 TO 530516.673 4187524.766 BY ARC CENTERED AT 532753.683 4192610.523 TO 529093.666 4188430.402 BY ARC CENTERED AT 526589.053 4193389.842 TO 524765.780 4188141.527  55a BY ARC CENTERED AT 526465.807 4193431.049 TO 522864.802 4189199.986 BY ARC CENTERED AT 526106.568 4193712.201 TO 522788.982 4189255.435 BY ARC CENTERED AT 525786.621 4193933.394 TO 522306.277 4189602.534 BY ARC CENTERED AT 525466.149 4194172.474 TO 522218.936 4189664.177 BY ARC CENTERED AT 524702.949 4194633.967 TO 522072.046 4189740.350 BY ARC CENTERED AT 523984.935 4194956.670 TO 521229.216 4190132.237 BY ARC CENTERED AT 523954.112 4194974.146 TO 520467.256 4190648.528 BY ARC CENTERED AT 523881.654 4195031.566 TO 519038.438 4192308.994 BY ARC CENTERED AT 523826.425 4195127.561 TO 518533.066 4193439.518 BY ARC CENTERED AT 520329.168 4198697.194 TO 516310.895 4194860.188 BY ARC CENTERED AT 519534.178 4199385.625 TO 515882.270 4195198.418 BY ARC CENTERED AT 518815.342 4199917.128 TO 515409.088 4195527.758 BY ARC CENTERED AT 518771.332 4199950.930 TO 514218.388 4196766.619 BY ARC CENTERED AT 518631.778 4200141.693 TO 513180.391 4199068.606 BY ARC CENTERED AT 518624.371 4200178.659 TO 513128.603 4199362.772 BY ARC CENTERED AT 516498.639 4203780.010 TO 511505.354 4201343.570 BY ARC CENTERED AT 515007.073 4205657.165 TO 510924.570 4201888.571  56a BY ARC CENTERED AT 514000.745 4206515.263 TO 510121.726 4202537.532 BY ARC CENTERED AT 513155.859 4207191.903 TO 509637.662 4202891.737 BY STRAIGHT LINE TO 509504.472 4202947.341 BY STRAIGHT LINE TO 508934.277 4203159.108 BY STRAIGHT LINE TO 508849.771 4203186.441 BY STRAIGHT LINE TO 508756.198 4203207.608 BY ARC CENTERED AT 503400.474 4204685.903 TO 504860.726 4199325.231 BY ARC CENTERED AT 503059.019 4204580.989 TO 503360.005 4199033.148 BY ARC CENTERED AT 502919.984 4204571.696 TO 502986.308 4199016.092 BY ARC CENTERED AT 502715.087 4204565.468 TO 502923.277 4199013.370 BY ARC CENTERED AT 502644.349 4204562.364 TO 500986.539 4199259.459 BY ARC CENTERED AT 501366.127 4204802.477 TO 500273.704 4199354.932 BY ARC CENTERED AT 500548.986 4204904.108 TO 499617.752 4199426.705 BY ARC CENTERED AT 500492.884 4204913.351 TO 499567.190 4199435.009 BY ARC CENTERED AT 499648.934 4204990.408 TO 498725.734 4199511.646 BY ARC CENTERED AT 498692.801 4205067.548 TO 497334.287 4199680.195 BY ARC CENTERED AT 498617.191 4205086.052 TO 497283.851 4199692.413 BY ARC CENTERED AT 497965.976 4205206.381 TO 495900.986 4200048.382 BY ARC CENTERED AT 497895.251 4205234.136 TO 494525.385 4200816.768  57a BY ARC CENTERED AT 497870.864 4205252.634 TO 494184.027 4201096.149 BY ARC CENTERED AT 497817.706 4205299.185 TO 492442.256 4206704.060 BY ARC CENTERED AT 497860.924 4205476.390 TO 493333.966 4208697.537 BY ARC CENTERED AT 498090.272 4205825.832 TO 494507.880 4210072.666 BY ARC CENTERED AT 499680.016 4208043.346 TO 494662.387 4210429.249 BY STRAIGHT LINE TO 494711.333 4210532.184 BY STRAIGHT LINE TO 495778.896 4213345.285 BY STRAIGHT LINE TO 497134.838 4217043.405 BY STRAIGHT LINE TO 497828.252 4219139.959 BY STRAIGHT LINE TO 498052.252 4219871.903 BY ARC CENTERED AT 503365.030 4218246.012 TO 498170.462 4220217.204 BY STRAIGHT LINE TO 498336.089 4220825.491 BY ARC CENTERED AT 503696.919 4219365.821 TO 498344.105 4220854.620 BY STRAIGHT LINE TO 498465.061 4221289.504 BY STRAIGHT LINE TO 498644.517 4222030.767 BY STRAIGHT LINE TO 498703.144 4222275.545 BY ARC CENTERED AT 502797.327 4226031.447 TO 498039.370 4223162.479 BY ARC CENTERED AT 502767.629 4226080.132 TO 497553.952 4224160.053 BY ARC CENTERED AT 502762.272 4226094.616 TO 497207.620 4226216.995 BY ARC CENTERED AT 502026.078 4228983.147 TO 496804.887 4227083.594 BY ARC CENTERED AT 500439.547 4231285.782 TO 496312.222 4227566.330 BY ARC CENTERED AT 500418.880 4231308.588  58a TO 494948.772 4230335.421 BY STRAIGHT LINE TO 491561.250 4234281.180 BY ARC CENTERED AT 494660.824 4238892.229 TO 490351.734 4235384.969 BY ARC CENTERED AT 494465.689 4239119.203 TO 490208.216 4235549.461 BY ARC CENTERED AT 494281.241 4239328.297 TO 489852.867 4235972.907 BY ARC CENTERED AT 494266.924 4239347.109 TO 489188.061 4237094.491 BY ARC CENTERED AT 494228.609 4239431.586 TO 489019.891 4237498.092 BY ARC CENTERED AT 494221.821 4239449.775 TO 488886.649 4237898.943 BY ARC CENTERED AT 494146.701 4239688.075 TO 488864.793 4237964.537 BY ARC CENTERED AT 493216.735 4241418.482 TO 488346.893 4238743.829 BY ARC CENTERED AT 493170.426 4241501.121 TO 487899.399 4239744.588 BY ARC CENTERED AT 493093.880 4241716.009 TO 488210.865 4244366.537 BY ARC CENTERED AT 492721.883 4247609.969 TO 487782.267 4245066.481 BY ARC CENTERED AT 492405.750 4248147.478 TO 487342.773 4245859.378 BY ARC CENTERED AT 491551.919 4249485.978 TO 486567.021 4247032.424 BY ARC CENTERED AT 490908.530 4250499.474 TO 486129.819 4247665.209 BY ARC CENTERED AT 490603.697 4250959.682 TO 485434.186 4248923.683 BY ARC CENTERED AT 490401.478 4251412.688 TO 485338.861 4249123.792  59a BY ARC CENTERED AT 489386.827 4252929.460 TO 484801.439 4249792.048 BY ARC CENTERED AT 487567.938 4254610.307 TO 482241.391 4253030.105 BY ARC CENTERED AT 486458.391 4256647.570 TO 481633.689 4253892.323 BY ARC CENTERED AT 485994.491 4257335.075 TO 481454.069 4254132.934 BY ARC CENTERED AT 484479.985 4258792.652 TO 480646.268 4254771.240 BY ARC CENTERED AT 484226.016 4259020.304 TO 480505.612 4254893.837 BY ARC CENTERED AT 481369.369 4260382.285 TO 478013.764 4255954.074 BY ARC CENTERED AT 479425.520 4261327.721 TO 477306.778 4256191.568 BY ARC CENTERED AT 479367.446 4261351.295 TO 475481.004 4257380.816 BY ARC CENTERED AT 477426.341 4262585.122 TO 472860.020 4259420.024 BY ARC CENTERED AT 477117.741 4262989.470 TO 472607.882 4259744.427 BY ARC CENTERED AT 477099.408 4263014.798 TO 472200.042 4260394.616 BY ARC CENTERED AT 475615.656 4264776.707 TO 471525.259 4261016.682 BY ARC CENTERED AT 475576.320 4264819.055 TO 471326.657 4261240.019 BY ARC CENTERED AT 474015.194 4266102.210 TO 471185.947 4261320.526 BY ARC CENTERED AT 473973.394 4266126.697 TO 470464.731 4261818.748 BY ARC CENTERED AT 473409.482 4266530.179 TO 468952.427 4263212.982  60a BY ARC CENTERED AT 471771.764 4268000.515 TO 468787.658 4263313.912 BY ARC CENTERED AT 470999.265 4268410.767 TO 467100.903 4264451.990 BY ARC CENTERED AT 470910.275 4268496.471 TO 466484.147 4265138.120 BY ARC CENTERED AT 470685.739 4268773.468 TO 466090.033 4265651.189 BY ARC CENTERED AT 470373.408 4269189.810 TO 464968.738 4267901.913 BY ARC CENTERED AT 468748.463 4271974.113 TO 464530.228 4268358.089 BY ARC CENTERED AT 467868.113 4272799.672 TO 464428.727 4268436.214 BY ARC CENTERED AT 467808.315 4272846.149 TO 463793.823 4269005.186 BY ARC CENTERED AT 467686.425 4272969.627 TO 462544.816 4270864.160 BY ARC CENTERED AT 467682.114 4272980.124 TO 462423.199 4271187.653 BY ARC CENTERED AT 467598.148 4273209.791 TO 462316.971 4271484.013 BY ARC CENTERED AT 466904.992 4274617.574 TO 462103.328 4271822.371 BY ARC CENTERED AT 466196.412 4275579.471 TO 462067.981 4271861.247 BY ARC CENTERED AT 465931.851 4275853.695 TO 461111.910 4273090.128 BY ARC CENTERED AT 465300.776 4276740.133 TO 460173.543 4274599.896 BY ARC CENTERED AT 464061.539 4278568.853 TO 458863.110 4276607.866 BY ARC CENTERED AT 464055.806 4278583.984 TO 458726.175 4277014.217  61a BY ARC CENTERED AT 462388.517 4281192.301 TO 458412.314 4277311.715 BY ARC CENTERED AT 462054.161 4281507.676 TO 456664.436 4280158.601 BY ARC CENTERED AT 462048.943 4281528.354 TO 456647.170 4280228.362 BY ARC CENTERED AT 460529.398 4284202.961 TO 455893.178 4281141.164 BY ARC CENTERED AT 458262.507 4286166.641 TO 454731.798 4281876.742 BY ARC CENTERED AT 457946.726 4286408.119 TO 453685.873 4282842.412 BY ARC CENTERED AT 456019.503 4287884.565 TO 453638.349 4282864.681 BY ARC CENTERED AT 455192.195 4288198.975 TO 451429.562 4284110.977 BY ARC CENTERED AT 454807.273 4288522.349 TO 450759.630 4284716.338 BY ARC CENTERED AT 453976.173 4289246.568 TO 449224.032 4286367.976 BY ARC CENTERED AT 453934.083 4289314.933 TO 448732.689 4287361.825 BY ARC CENTERED AT 452920.151 4291013.440 TO 448361.995 4287836.594 BY ARC CENTERED AT 451577.851 4292367.312 TO 447063.419 4289128.633 BY ARC CENTERED AT 448666.236 4294448.418 TO 446204.272 4289467.668 BY ARC CENTERED AT 448599.382 4294480.909 TO 445051.369 4290205.311 BY ARC CENTERED AT 448482.750 4294575.066 TO 444470.772 4290731.478 BY ARC CENTERED AT 448408.221 4294651.380 TO 444011.033 4291255.225  62a BY ARC CENTERED AT 447843.265 4295278.051 TO 443103.344 4292379.381 BY ARC CENTERED AT 447632.856 4295596.936 TO 442671.483 4293096.154 BY ARC CENTERED AT 444901.305 4298185.066 TO 441023.314 4294206.332 BY ARC CENTERED AT 444890.766 4298195.311 TO 440109.470 4295365.408 BY ARC CENTERED AT 444880.279 4298212.955 TO 439845.697 4295863.037 BY ARC CENTERED AT 442661.679 4300652.544 TO 437205.849 4299602.282 BY ARC CENTERED AT 440981.619 4303678.149 TO 436600.938 4300260.727 BY ARC CENTERED AT 440957.987 4303708.228 TO 436064.761 4301076.598 BY ARC CENTERED AT 438866.259 4305874.592 TO 434733.468 4302161.214 BY ARC CENTERED AT 438846.912 4305896.012 TO 434040.327 4303109.280 BY ARC CENTERED AT 437130.817 4307726.423 TO 433085.958 4303917.453 BY ARC CENTERED AT 436851.234 4308003.017 TO 431346.497 4307250.022 BY ARC CENTERED AT 436843.938 4308054.555 TO 431308.632 4307575.464 BY ARC CENTERED AT 436755.888 4308669.330 TO 431227.240 4308118.707 BY ARC CENTERED AT 436674.503 4309212.535 TO 431225.370 4308128.062 BY ARC CENTERED AT 436456.169 4310000.994 TO 431028.536 4308813.587 BY ARC CENTERED AT 435558.475 4312030.540 TO 430421.149 4309914.643  63a BY ARC CENTERED AT 435294.122 4312583.589 TO 433780.634 4317929.474 BY ARC CENTERED AT 438846.472 4315647.715 TO 433993.315 4318352.526 BY STRAIGHT LINE TO 434077.179 4318554.070 BY STRAIGHT LINE TO 434162.047 4318766.371 BY ARC CENTERED AT 439500.757 4317227.763 TO 434247.861 4319037.795 BY ARC CENTERED AT 439802.631 4318920.903 TO 434259.484 4319298.598 BY ARC CENTERED AT 439782.726 4319901.035 TO 434241.350 4320303.890 BY ARC CENTERED AT 439661.502 4321524.993 TO 434127.790 4322022.155 BY ARC CENTERED AT 439035.977 4324625.775 TO 433632.669 4323332.178 BY ARC CENTERED AT 438941.805 4324969.922 TO 433607.685 4323415.477 BY ARC CENTERED AT 438181.563 4326569.645 TO 433426.617 4323695.689 BY ARC CENTERED AT 437625.423 4327334.255 TO 432103.483 4326719.996 BY ARC CENTERED AT 437623.403 4327352.150 TO 432070.751 4327544.991 BY ARC CENTERED AT 436884.312 4330319.655 TO 431478.170 4329037.950 BY ARC CENTERED AT 435879.271 4332429.034 TO 430382.445 4331620.309 BY ARC CENTERED AT 435779.276 4332940.668 TO 430225.183 4333086.222 BY ARC CENTERED AT 434602.998 4336507.314 TO 429551.616 4334193.728 BY ARC CENTERED AT 434224.163 4337199.796 TO 429439.813 4334375.060  64a BY ARC CENTERED AT 433443.974 4338226.791 TO 428209.110 4336365.249 BY ARC CENTERED AT 432998.015 4339182.256 TO 427468.556 4338639.836 BY ARC CENTERED AT 432526.007 4340940.124 TO 426977.811 4341234.492 BY ARC CENTERED AT 432472.147 4342059.964 TO 426922.781 4341788.532 BY ARC CENTERED AT 432398.348 4342730.500 TO 426867.427 4342203.192 BY ARC CENTERED AT 432311.335 4343313.600 TO 426783.094 4342758.903 BY ARC CENTERED AT 431847.419 4345044.018 TO 426463.858 4343670.553 BY ARC CENTERED AT 431179.702 4346608.231 TO 426463.321 4343671.416 BY ARC CENTERED AT 430931.527 4346973.577 TO 425486.361 4345869.358 BY ARC CENTERED AT 430765.968 4347599.931 TO 425307.356 4346564.221 BY ARC CENTERED AT 430694.090 4347925.190 TO 425212.061 4347021.592 BY ARC CENTERED AT 430552.787 4348553.185 TO 424999.464 4348380.744 BY ARC CENTERED AT 429913.461 4350973.381 TO 424587.875 4349389.946 BY ARC CENTERED AT 429843.100 4351193.205 TO 424404.672 4350056.261 BY ARC CENTERED AT 429613.401 4351989.725 TO 424083.321 4352525.776 BY ARC CENTERED AT 428702.456 4355613.288 TO 423903.251 4352813.865 BY ARC CENTERED AT 428523.863 4355899.166 TO 423813.556 4352952.618  65a BY ARC CENTERED AT 428484.693 4355960.876 TO 423038.644 4357060.735 BY ARC CENTERED AT 428584.312 4356722.052 TO 423054.501 4357260.868 BY ARC CENTERED AT 428559.302 4358013.396 TO 423502.776 4360315.716 BY ARC CENTERED AT 429043.707 4359906.795 TO 423578.561 4360907.451 BY ARC CENTERED AT 429130.267 4360689.063 TO 423598.291 4361205.186 BY ARC CENTERED AT 429112.914 4361881.998 TO 423558.593 4361745.414 BY ARC CENTERED AT 429082.210 4362344.407 TO 423718.131 4363792.092 BY ARC CENTERED AT 429086.172 4362359.168 TO 423746.627 4363894.874 BY ARC CENTERED AT 429300.166 4364060.220 TO 423770.762 4364603.204 BY ARC CENTERED AT 429221.888 4365677.618 TO 424043.123 4367689.962 BY ARC CENTERED AT 429561.332 4367043.043 TO 424725.190 4369778.160 BY ARC CENTERED AT 430178.499 4368714.885 TO 424973.838 4370659.273 BY ARC CENTERED AT 430485.857 4371356.975 TO 425872.118 4374452.545 BY ARC CENTERED AT 430686.791 4371679.809 TO 426725.184 4375575.294 BY ARC CENTERED AT 430777.215 4371773.955 TO 427564.982 4376307.242 BY ARC CENTERED AT 432403.005 4373575.454 TO 427630.794 4376420.649 BY STRAIGHT LINE TO 427734.383 4376727.124 BY ARC CENTERED AT 432997.848 4374948.059  66a TO 427767.402 4376821.978 BY STRAIGHT LINE TO 427874.127 4377119.868 BY ARC CENTERED AT 433292.258 4375889.828 TO 428016.047 4377630.727 BY ARC CENTERED AT 432927.780 4380227.651 TO 427373.827 4380378.446 BY ARC CENTERED AT 432346.355 4382856.973 TO 426976.563 4381430.624 BY ARC CENTERED AT 432147.018 4383464.225 TO 426841.854 4381813.659 BY ARC CENTERED AT 432077.301 4383673.559 TO 426556.740 4383047.030 BY ARC CENTERED AT 432075.528 4383688.989 TO 426548.197 4384252.679 BY ARC CENTERED AT 432103.142 4384144.416 TO 426680.510 4385354.458 BY ARC CENTERED AT 432109.850 4384174.879 TO 426688.443 4385390.396 BY ARC CENTERED AT 432178.349 4386244.835 TO 426623.620 4386363.660 BY ARC CENTERED AT 432158.383 4386848.976 TO 426608.453 4386589.337 BY ARC CENTERED AT 432005.823 4387907.492 TO 426494.281 4388608.946 BY ARC CENTERED AT 432044.145 4388869.987 TO 426492.269 4389084.016 BY ARC CENTERED AT 431972.304 4389999.632 TO 426432.494 4389575.788 BY ARC CENTERED AT 431776.339 4391096.465 TO 426255.315 4391718.905 BY ARC CENTERED AT 430970.203 4394658.117 TO 426249.356 4391728.485 BY ARC CENTERED AT 430464.829 4395347.729 TO 425996.535 4392045.686  67a BY ARC CENTERED AT 429091.094 4396660.103 TO 424483.627 4393555.206 BY ARC CENTERED AT 428690.679 4397184.235 TO 423854.092 4394449.905 BY ARC CENTERED AT 428610.053 4397322.181 TO 423054.220 4397279.078 BY ARC CENTERED AT 428207.609 4399355.546 TO 422652.002 4399289.438 BY ARC CENTERED AT 428010.556 4400757.443 TO 422456.577 4400607.585 BY ARC CENTERED AT 427912.610 4401656.796 TO 422358.025 4401782.170 BY ARC CENTERED AT 427912.591 4401908.383 TO 422482.208 4403083.151 BY ARC CENTERED AT 428015.834 4403581.271 TO 422460.585 4403489.944 BY ARC CENTERED AT 428013.408 4403677.797 TO 422463.947 4403947.285 BY ARC CENTERED AT 427561.253 4406157.853 TO 422073.339 4405290.712 BY ARC CENTERED AT 427433.234 4406753.811 TO 421941.680 4405910.027 BY ARC CENTERED AT 424373.935 4410905.352 TO 420828.763 4406627.398 BY ARC CENTERED AT 423841.378 4411295.726 TO 420634.808 4406758.431 BY ARC CENTERED AT 423648.740 4411425.909 TO 419346.241 4407910.565 BY ARC CENTERED AT 422365.363 4412574.688 TO 417472.244 4409942.860 BY ARC CENTERED AT 422230.887 4412810.690 TO 417222.483 4410405.481 BY ARC CENTERED AT 422025.960 4413197.568 TO 416778.575 4411371.620  68a BY ARC CENTERED AT 421868.253 4413599.694 TO 416766.699 4411398.949 BY ARC CENTERED AT 421798.325 4413755.190 TO 416395.433 4412459.853 BY ARC CENTERED AT 421697.980 4414118.809 TO 416203.347 4413295.316 BY ARC CENTERED AT 421361.263 4415360.512 TO 415972.948 4414005.817 BY ARC CENTERED AT 420816.018 4416728.648 TO 415890.169 4414158.599 BY ARC CENTERED AT 419485.748 4418394.275 TO 415182.191 4414880.227 BY ARC CENTERED AT 418690.668 4419188.327 TO 415069.364 4414974.624 BY ARC CENTERED AT 418584.067 4419277.646 TO 414034.521 4416088.482 BY ARC CENTERED AT 418264.172 4419691.146 TO 413841.845 4416327.791 BY ARC CENTERED AT 418121.515 4419870.891 TO 413162.891 4417364.661 BY ARC CENTERED AT 418099.658 4419913.675 TO 413034.303 4417630.845 BY ARC CENTERED AT 418032.819 4420056.535 TO 412868.279 4418007.958 BY ARC CENTERED AT 417120.455 4421584.009 TO 411806.583 4419961.696 BY ARC CENTERED AT 416045.554 4423553.389 TO 411354.158 4420576.824 BY ARC CENTERED AT 415562.748 4424204.069 TO 410741.506 4421442.772 BY ARC CENTERED AT 415112.958 4424871.991 TO 410454.409 4421844.276 BY ARC CENTERED AT 414898.116 4425179.333 TO 410279.474 4422091.084  69a BY ARC CENTERED AT 414425.027 4425790.209 TO 409819.396 4422682.590 BY ARC CENTERED AT 413250.861 4427052.279 TO 408129.329 4424898.433 BY ARC CENTERED AT 412081.766 4428803.223 TO 408100.548 4424927.783 BY ARC CENTERED AT 409052.831 4430401.565 TO 407475.926 4425074.041 BY ARC CENTERED AT 408667.082 4430500.853 TO 405283.592 4426093.912 BY ARC CENTERED AT 408359.137 4430721.023 TO 404502.704 4426721.390 BY ARC CENTERED AT 408089.894 4430964.173 TO 403283.650 4428176.853 BY ARC CENTERED AT 407681.890 4431571.646 TO 402129.387 4431374.543 BY ARC CENTERED AT 407675.463 4431706.477 TO 402200.498 4432651.935 BY ARC CENTERED AT 407750.298 4432914.332 TO 402198.906 4432688.107 BY ARC CENTERED AT 407744.751 4433023.866 TO 402276.470 4434007.246 BY STRAIGHT LINE TO 402281.602 4434100.151 BY ARC CENTERED AT 407494.399 4436022.620 TO 402267.511 4434138.799 BY ARC CENTERED AT 407450.345 4436140.641 TO 402194.472 4434339.270 BY ARC CENTERED AT 406838.049 4437389.898 TO 401836.451 4434970.569 BY ARC CENTERED AT 405748.136 4438916.181 TO 401231.932 4435679.974 BY ARC CENTERED AT 404535.384 4440147.226 TO 401144.075 4435746.299 BY ARC CENTERED AT 403339.040 4440850.343  70a TO 400734.573 4435942.606 BY ARC CENTERED AT 402054.449 4441339.555 TO 400015.498 4436171.207 BY ARC CENTERED AT 401846.389 4441416.870 TO 399315.706 4436470.682 BY ARC CENTERED AT 400206.556 4441954.797 TO 396655.812 4437681.466 BY ARC CENTERED AT 398764.033 4442821.947 TO 394745.097 4438985.635 BY ARC CENTERED AT 398716.634 4442870.996 TO 393973.544 4439977.515 BY ARC CENTERED AT 398368.099 4443377.077 TO 393652.175 4440439.528 BY ARC CENTERED AT 397888.626 4444034.193 TO 392951.054 4441486.739 BY ARC CENTERED AT 397525.690 4444639.808 TO 392600.316 4442068.849 BY ARC CENTERED AT 396115.936 4446371.122 TO 391710.985 4442985.041 BY ARC CENTERED AT 395362.977 4447172.175 TO 391552.399 4443128.831 BY ARC CENTERED AT 395106.585 4447399.299 TO 391451.958 4443214.465 BY ARC CENTERED AT 394689.355 4447729.816 TO 391359.957 4443281.868 BY ARC CENTERED AT 392835.175 4448638.440 TO 389738.457 4444025.472 BY ARC CENTERED AT 392806.352 4448657.659 TO 388987.404 4444622.219 BY ARC CENTERED AT 392764.564 4448696.799 TO 388710.406 4444897.729 BY ARC CENTERED AT 391763.012 4449540.005 TO 387617.100 4445841.282 BY ARC CENTERED AT 389828.034 4450938.429  71a TO 385138.890 4447958.318 BY ARC CENTERED AT 388666.595 4452250.687 TO 384313.509 4448798.184 BY ARC CENTERED AT 387476.159 4453366.201 TO 382826.646 4450324.628 BY ARC CENTERED AT 386378.808 4454596.780 TO 382169.986 4450969.804 BY ARC CENTERED AT 383628.846 4456330.855 TO 378105.731 4456934.455 BY ARC CENTERED AT 383629.947 4456341.016 TO 378115.764 4457021.397 BY ARC CENTERED AT 383612.936 4457827.767 TO 378056.936 4457828.203 BY ARC CENTERED AT 383600.675 4458197.112 TO 378156.892 4459308.133 BY ARC CENTERED AT 383682.860 4458731.229 TO 378347.850 4460282.617 BY ARC CENTERED AT 383902.887 4460179.174 TO 379017.562 4462825.442 BY ARC CENTERED AT 384214.905 4464789.306 TO 378855.446 4463324.611 BY ARC CENTERED AT 383942.780 4465558.031 TO 378398.562 4465919.672 BY ARC CENTERED AT 383810.128 4467178.279 TO 378322.961 4468050.138 BY ARC CENTERED AT 383813.268 4467198.276 TO 378336.955 4468135.894 BY ARC CENTERED AT 383209.733 4470805.195 TO 378331.479 4468145.914 BY ARC CENTERED AT 381596.780 4472641.128 TO 378084.936 4468335.772 BY ARC CENTERED AT 381570.004 4472662.831 TO 376807.475 4469801.458 BY ARC CENTERED AT 381528.166 4472731.341  72a TO 376716.566 4469953.277 BY ARC CENTERED AT 380219.601 4474265.803 TO 374794.247 4473068.024 BY ARC CENTERED AT 375375.515 4478593.534 TO 373584.209 4483852.846 BY ARC CENTERED AT 375604.770 4478677.281 TO 375835.767 4484228.477 BY ARC CENTERED AT 381249.670 4485476.992 TO 377328.211 4489412.891 BY ARC CENTERED AT 382185.380 4486715.290 TO 379176.110 4491385.775 BY ARC CENTERED AT 384321.628 4489289.878 TO 379244.654 4491546.751 BY STRAIGHT LINE TO 379299.163 4491669.372 BY STRAIGHT LINE TO 379310.633 4491706.454 BY ARC CENTERED AT 384618.516 4490064.651 TO 379528.585 4492292.147 BY STRAIGHT LINE TO 379683.430 4492645.975 BY ARC CENTERED AT 384773.361 4490418.479 TO 379729.999 4492749.495 BY STRAIGHT LINE TO 379937.181 4493197.751 BY STRAIGHT LINE TO 380016.520 4493397.596 BY ARC CENTERED AT 385345.677 4491826.219 TO 380214.606 4493957.238 BY STRAIGHT LINE TO 380508.874 4494665.777 BY ARC CENTERED AT 385639.945 4492534.758 TO 380667.169 4495012.788 BY STRAIGHT LINE TO 380864.862 4495409.509 BY STRAIGHT LINE TO 380995.659 4495758.702 BY ARC CENTERED AT 386198.644 4493809.836 TO 380999.199 4495768.127 BY STRAIGHT LINE TO 381307.691 4496587.202 BY ARC CENTERED AT 386507.136 4494628.911 TO 381308.267 4496588.731  73a BY STRAIGHT LINE TO 381487.101 4497063.129 BY ARC CENTERED AT 386685.970 4495103.309 TO 381649.793 4497449.808 BY STRAIGHT LINE TO 381892.793 4497971.347 BY ARC CENTERED AT 386928.970 4495624.848 TO 381895.264 4497976.644 BY STRAIGHT LINE TO 382027.957 4498260.655 BY STRAIGHT LINE TO 382179.561 4498665.344 BY ARC CENTERED AT 387382.459 4496716.245 TO 382430.517 4499235.652 BY STRAIGHT LINE TO 382559.138 4499488.459 BY ARC CENTERED AT 387511.080 4496969.052 TO 382743.623 4499822.206 BY STRAIGHT LINE TO 382754.139 4499839.777 BY ARC CENTERED AT 387757.428 4497423.948 TO 382850.704 4500030.323 BY STRAIGHT LINE TO 383186.157 4500661.842 BY ARC CENTERED AT 388092.881 4498055.467 TO 383424.148 4501067.454 BY STRAIGHT LINE TO 383472.948 4501143.097 BY ARC CENTERED AT 388626.890 4499068.002 TO 383584.071 4501400.194 BY STRAIGHT LINE TO 383823.468 4501917.834 BY ARC CENTERED AT 388866.287 4499585.642 TO 383891.750 4502060.135 BY STRAIGHT LINE TO 383899.773 4502076.263 BY STRAIGHT LINE TO 383906.378 4502093.529 BY ARC CENTERED AT 389095.626 4500108.375 TO 384144.851 4502630.073 BY STRAIGHT LINE TO 384438.456 4503206.499 BY STRAIGHT LINE TO 384640.274 4503662.730 BY ARC CENTERED AT 389721.335 4501415.075 TO 384691.727 4503775.622 BY STRAIGHT LINE TO 384794.935 4503995.526  74a BY STRAIGHT LINE TO 384922.055 4504270.552 BY ARC CENTERED AT 389965.384 4501939.464 TO 385109.841 4504639.989 BY STRAIGHT LINE TO 385151.957 4504734.259 BY ARC CENTERED AT 390224.726 4502467.952 TO 385250.881 4504943.837 BY STRAIGHT LINE TO 385471.534 4505387.109 BY STRAIGHT LINE TO 385684.712 4505845.113 BY ARC CENTERED AT 390721.812 4503500.597 TO 385794.814 4506068.442 BY STRAIGHT LINE TO 386075.086 4506606.208 BY ARC CENTERED AT 391002.084 4504038.363 TO 386327.559 4507041.353 BY STRAIGHT LINE TO 386476.705 4507340.621 BY STRAIGHT LINE TO 386530.419 4507459.174 BY ARC CENTERED AT 391591.210 4505166.244 TO 386847.239 4508058.281 BY STRAIGHT LINE TO 387069.327 4508422.585 BY STRAIGHT LINE TO 387238.018 4508704.608 BY ARC CENTERED AT 392006.152 4505852.586 TO 387249.171 4508723.173 BY STRAIGHT LINE TO 387489.935 4509122.154 BY ARC CENTERED AT 392246.916 4506251.567 TO 387583.367 4509271.575 BY STRAIGHT LINE TO 387737.535 4509509.644 BY ARC CENTERED AT 392649.651 4506913.444 TO 387988.605 4509937.313 BY STRAIGHT LINE TO 388231.381 4510311.533 BY STRAIGHT LINE TO 388530.535 4510789.532 BY STRAIGHT LINE TO 389014.361 4511590.689 BY STRAIGHT LINE TO 389106.068 4511743.297 BY STRAIGHT LINE TO 389245.824 4512052.267 BY ARC CENTERED AT 394308.042 4509762.489 TO 389481.796 4512515.030  75a BY ARC CENTERED AT 394967.587 4513395.501 TO 390100.583 4516075.315 BY STRAIGHT LINE TO 390107.323 4516087.556 BY ARC CENTERED AT 394974.327 4513407.742 TO 390949.636 4517238.016 BY STRAIGHT LINE TO 391271.376 4517576.086 BY ARC CENTERED AT 395425.702 4513886.817 TO 392781.547 4518773.286 BY STRAIGHT LINE TO 392939.125 4519043.977 BY ARC CENTERED AT 397740.788 4516248.773 TO 392948.253 4519059.599 BY STRAIGHT LINE TO 393112.805 4519340.165 BY STRAIGHT LINE TO 393343.621 4519782.259 BY ARC CENTERED AT 398268.763 4517210.856 TO 393365.575 4519823.877 BY STRAIGHT LINE TO 393557.788 4520184.554 BY ARC CENTERED AT 398460.976 4517571.533 TO 393631.162 4520317.809 BY STRAIGHT LINE TO 393868.343 4520734.933 BY STRAIGHT LINE TO 393985.481 4520969.935 BY STRAIGHT LINE TO 394202.855 4521414.855 BY ARC CENTERED AT 399194.911 4518975.899 TO 394285.662 4521577.515 BY STRAIGHT LINE TO 394412.883 4521817.581 BY ARC CENTERED AT 399322.132 4519215.965 TO 394545.447 4522053.644 BY ARC CENTERED AT 399541.344 4519622.563 TO 394586.583 4522136.421 BY STRAIGHT LINE TO 395028.569 4523007.566 BY STRAIGHT LINE TO 395258.306 4523520.209 BY ARC CENTERED AT 400328.461 4521248.059 TO 395272.191 4523550.941 BY STRAIGHT LINE TO 395506.320 4524065.001 BY ARC CENTERED AT 400562.590 4521762.119  76a TO 395536.294 4524129.710 BY STRAIGHT LINE TO 395797.157 4524683.511 BY ARC CENTERED AT 400823.453 4522315.920 TO 395833.290 4524758.749 BY STRAIGHT LINE TO 396079.615 4525261.936 BY STRAIGHT LINE TO 396291.113 4525745.037 BY ARC CENTERED AT 401380.735 4523516.834 TO 396468.941 4526113.643 BY ARC CENTERED AT 401587.458 4523952.643 TO 396550.306 4526297.048 BY STRAIGHT LINE TO 396670.533 4526555.366 BY STRAIGHT LINE TO 396797.761 4526841.106 BY STRAIGHT LINE TO 396848.355 4526956.297 BY STRAIGHT LINE TO 396968.972 4527256.664 BY ARC CENTERED AT 402124.799 4525186.256 TO 397063.868 4527478.877 BY STRAIGHT LINE TO 397222.366 4527828.760 BY ARC CENTERED AT 402589.265 4526391.564 TO 397251.077 4527931.981 BY STRAIGHT LINE TO 397332.999 4528215.875 BY ARC CENTERED AT 402671.187 4526675.458 TO 397465.470 4528617.015 BY STRAIGHT LINE TO 397597.220 4528970.264 BY ARC CENTERED AT 402802.937 4527028.707 TO 397822.947 4529492.208 BY STRAIGHT LINE TO 397851.198 4529569.362 BY STRAIGHT LINE TO 397966.100 4529894.370 BY STRAIGHT LINE TO 397997.406 4529983.417 BY STRAIGHT LINE TO 398026.478 4530096.102 BY ARC CENTERED AT 403406.314 4528708.116 TO 398272.397 4530832.272 BY STRAIGHT LINE TO 398318.677 4530944.126 BY STRAIGHT LINE TO 398338.528 4531012.593 BY ARC CENTERED AT 403674.774 4529465.463  77a TO 398400.893 4531213.408 BY STRAIGHT LINE TO 398476.062 4531440.209 BY STRAIGHT LINE TO 398531.742 4531655.008 BY ARC CENTERED AT 403909.988 4530260.876 TO 398565.997 4531781.038 BY STRAIGHT LINE TO 398697.896 4532244.717 BY ARC CENTERED AT 404041.887 4530724.555 TO 398770.647 4532480.450 BY STRAIGHT LINE TO 398809.306 4532596.505 BY STRAIGHT LINE TO 398828.224 4532677.889 BY ARC CENTERED AT 404239.938 4531419.919 TO 398996.552 4533257.319 BY STRAIGHT LINE TO 399018.272 4533319.303 BY STRAIGHT LINE TO 399038.523 4533398.735 BY STRAIGHT LINE TO 399054.497 4533503.979 BY ARC CENTERED AT 404547.586 4532670.246 TO 399180.149 4534105.429 BY STRAIGHT LINE TO 399232.113 4534373.295 BY ARC CENTERED AT 404686.428 4533315.192 TO 399346.358 4534849.071 BY STRAIGHT LINE TO 399525.593 4535473.063 BY STRAIGHT LINE TO 399595.793 4535807.945 BY ARC CENTERED AT 405033.600 4534668.037 TO 399671.247 4536122.103 BY STRAIGHT LINE TO 399819.507 4536668.861 BY ARC CENTERED AT 405181.860 4535214.795 TO 399922.159 4537004.958 BY STRAIGHT LINE TO 399996.252 4537361.303 BY STRAIGHT LINE TO 400049.827 4537744.570 BY ARC CENTERED AT 405552.327 4536975.394 TO 400059.294 4537809.497 BY STRAIGHT LINE TO 400086.357 4537987.722 BY ARC CENTERED AT 405579.390 4537153.619 TO 400263.097 4538767.981  78a BY STRAIGHT LINE TO 400429.643 4539316.437 BY STRAIGHT LINE TO 400432.863 4539327.902 BY ARC CENTERED AT 403154.296 4544171.758 TO 397937.294 4542260.730 BY ARC CENTERED AT 402595.375 4545289.165 TO 397741.807 4542585.092 BY ARC CENTERED AT 402395.483 4545620.291 TO 397720.029 4542618.748 BY ARC CENTERED AT 401650.505 4546545.641 TO 396103.824 4546223.981 BY ARC CENTERED AT 401422.206 4547831.447 TO 395866.241 4547851.290 BY ARC CENTERED AT 401275.696 4549118.940 TO 395749.524 4548543.993 BY ARC CENTERED AT 400457.598 4551494.108 TO 395114.533 4553017.523 BY ARC CENTERED AT 400544.445 4554194.464 TO 394992.682 4554411.417 BY ARC CENTERED AT 400545.564 4554225.292 TO 398948.550 4559546.822 BY ARC CENTERED AT 402503.757 4555277.204 TO 399745.726 4560100.315 BY STRAIGHT LINE TO 399978.553 4560833.613 BY ARC CENTERED AT 405274.040 4559152.257 TO 400078.908 4561121.962 BY STRAIGHT LINE TO 400449.483 4562099.361 BY STRAIGHT LINE TO 400868.177 4563268.860 BY STRAIGHT LINE TO 401148.937 4564119.241 BY ARC CENTERED AT 406666.604 4563467.713 TO 401359.170 4565110.964 BY ARC CENTERED AT 406827.333 4566094.999 TO 401384.737 4567211.818 BY ARC CENTERED AT 406861.555 4566277.152 TO 401407.398 4567336.072  79a BY ARC CENTERED AT 406954.377 4567019.585 TO 402341.651 4570116.663 BY ARC CENTERED AT 407743.710 4568817.859 TO 402470.474 4570567.751 BY ARC CENTERED AT 407778.844 4568927.523 TO 402724.356 4571234.316 BY ARC CENTERED AT 408115.391 4572578.147 TO 402616.761 4571781.779 BY ARC CENTERED AT 401385.761 4577199.691 TO 404849.571 4581543.785 BY STRAIGHT LINE TO 405003.429 4583197.377 BY ARC CENTERED AT 410535.534 4582682.645 TO 405112.312 4583890.038 BY STRAIGHT LINE TO 405150.287 4584060.612 BY STRAIGHT LINE TO 405182.709 4584464.181 BY ARC CENTERED AT 410720.866 4584019.263 TO 405292.734 4585204.389 BY STRAIGHT LINE TO 405337.281 4585408.420 BY STRAIGHT LINE TO 405371.474 4586024.491 BY ARC CENTERED AT 410918.936 4585716.595 TO 405390.761 4586271.952 BY STRAIGHT LINE TO 405443.159 4586793.531 BY STRAIGHT LINE TO 405463.491 4587255.494 BY STRAIGHT LINE TO 405462.958 4587325.279 BY ARC CENTERED AT 410740.782 4589061.284 TO 405190.353 4589310.023 BY ARC CENTERED AT 410746.276 4589280.822 TO 405190.426 4589321.631 BY ARC CENTERED AT 410726.781 4589788.437 TO 405170.962 4589743.599 BY ARC CENTERED AT 410700.849 4590281.637 TO 405171.060 4590820.682 BY ARC CENTERED AT 410480.451 4592457.601 TO 405166.401 4590835.872  80a BY ARC CENTERED AT 410307.174 4592943.379 TO 405095.909 4591016.762 BY ARC CENTERED AT 410094.199 4593442.918 TO 404538.406 4593395.006 BY ARC CENTERED AT 409634.247 4595608.947 TO 404144.448 4594753.816 BY ARC CENTERED AT 409402.586 4596548.566 TO 403899.286 4595785.133 BY ARC CENTERED AT 408781.278 4598437.546 TO 403290.665 4597587.661 BY ARC CENTERED AT 407357.439 4601373.224 TO 401902.182 4600319.985 BY ARC CENTERED AT 406352.532 4603646.173 TO 400983.589 4605075.715 BY ARC CENTERED AT 406358.853 4606481.303 TO 400824.883 4606975.585 BY ARC CENTERED AT 404724.305 4610933.317 TO 399312.582 4609675.387 BY ARC CENTERED AT 404712.033 4610984.991 TO 399159.819 4611190.074 BY ARC CENTERED AT 404576.183 4612427.871 TO 399046.138 4612964.286 BY ARC CENTERED AT 404590.419 4613324.962 TO 399041.125 4613052.058 BY ARC CENTERED AT 404588.387 4613363.546 TO 399229.154 4614829.069 BY ARC CENTERED AT 404644.501 4616071.306 TO 399126.502 4615422.596 BY ARC CENTERED AT 400920.018 4620681.154 TO 397910.922 4616010.557 BY ARC CENTERED AT 399165.087 4621423.154 TO 395511.185 4617237.687 BY ARC CENTERED AT 398300.525 4622042.759 TO 395231.302 4617411.452  81a BY ARC CENTERED AT 397758.202 4622359.574 TO 393744.415 4618517.875 BY ARC CENTERED AT 397720.411 4622398.673 TO 393381.505 4618928.365 BY ARC CENTERED AT 396371.935 4623610.936 TO 392397.667 4619728.369 BY ARC CENTERED AT 396357.822 4623625.330 TO 392357.328 4619769.790 BY ARC CENTERED AT 395976.161 4623985.616 TO 392036.988 4620067.447 BY ARC CENTERED AT 392662.539 4625588.119 TO 388939.151 4621464.344 BY ARC CENTERED AT 392610.809 4625634.244 TO 388335.662 4622085.687 BY ARC CENTERED AT 391797.975 4626430.975 TO 387259.878 4623225.540 BY ARC CENTERED AT 390460.931 4627766.729 TO 386487.801 4623882.997 BY ARC CENTERED AT 388162.151 4629180.703 TO 383218.835 4626644.415 BY ARC CENTERED AT 387677.201 4629959.849 TO 382459.293 4628051.296 BY ARC CENTERED AT 385742.025 4632533.796 TO 382365.112 4628121.813 BY ARC CENTERED AT 385704.641 4632562.160 TO 383093.395 4637466.294 BY ARC CENTERED AT 385816.363 4632623.301 TO 390858.805 4634956.306 BY ARC CENTERED AT 392051.411 4629529.813 TO 392896.827 4635021.116 BY ARC CENTERED AT 392177.621 4629511.862 TO 393330.482 4634946.938 BY STRAIGHT LINE TO 393435.934 4635343.028 BY STRAIGHT LINE TO 393658.066 4636228.782  82a BY STRAIGHT LINE TO 393763.685 4636704.398 BY STRAIGHT LINE TO 393839.593 4637142.274 BY ARC CENTERED AT 399313.945 4636193.272 TO 393908.007 4637475.837 BY STRAIGHT LINE TO 394037.794 4638022.879 BY STRAIGHT LINE TO 394075.190 4638240.153 BY STRAIGHT LINE TO 394078.286 4638272.854 BY ARC CENTERED AT 399609.539 4637749.039 TO 394160.837 4638835.675 BY STRAIGHT LINE TO 394249.943 4639282.480 BY ARC CENTERED AT 399505.599 4641084.483 TO 394154.206 4639590.586 BY ARC CENTERED AT 398552.047 4642985.896 TO 393340.720 4641059.446 BY ARC CENTERED AT 398546.057 4643002.023 TO 393013.419 4643510.990 BY ARC CENTERED AT 398552.985 4643083.978 TO 393426.765 4645226.642 BY ARC CENTERED AT 398981.191 4645094.386 TO 393497.375 4645987.077 BY ARC CENTERED AT 398775.736 4647721.447 TO 393313.383 4646705.654 BY ARC CENTERED AT 397928.493 4649799.179 TO 393128.310 4647001.434 BY ARC CENTERED AT 397143.152 4650842.030 TO 392383.440 4647975.974 BY ARC CENTERED AT 397114.576 4650888.960 TO 391672.499 4649769.616 BY ARC CENTERED AT 393149.315 4655125.748 TO the intersection with the California-Oregon state lateral boundary  83a EXHIBIT B Location of the Fixed Offshore Boundary Between the United States and California in the Vicinity of the Farallon Islands. NAD 83/WGS 84 UTM ZONE 10 (meters) x-coordinate y-coordinate --------------------------------------------------------------------------- BEGINNING AT 486509.525 4184401.713 BY ARC CENTERED AT 490468.788 4180503.846 TO 484913.004 4180454.832 BY ARC CENTERED AT 490468.659 4180392.899 TO 487134.261 4175948.697 BY ARC CENTERED AT 491250.770 4179680.117 TO 489190.768 4174520.124 BY ARC CENTERED AT 491363.269 4179633.770 TO 491808.391 4174095.629 BY ARC CENTERED AT 497158.083 4175595.606 TO 493300.616 4171596.970 BY ARC CENTERED AT 498800.150 4172387.075 TO 494168.425 4169318.483 BY ARC CENTERED AT 498900.532 4172229.891 TO 495053.624 4168221.096 BY ARC CENTERED AT 498954.400 4172177.494 TO 496519.986 4167183.221 BY ARC CENTERED AT 499618.035 4171795.295 TO 499638.585 4166239.333 BY ARC CENTERED AT 499659.668 4171795.293 TO 501906.060 4166713.673 BY ARC CENTERED AT 499782.120 4171847.679 TO 503999.408 4168230.551 BY ARC CENTERED AT 500036.816 4172125.034 TO 504880.925 4169404.052  84a BY ARC CENTERED AT 500061.305 4172168.179 TO 505617.282 4172184.066 BY ARC CENTERED AT 500066.201 4172417.802 TO 505622.175 4172434.915 BY ARC CENTERED AT 500066.200 4172451.700 TO 504877.586 4175230.136 BY ARC CENTERED AT 499796.841 4172981.765 TO 504350.184 4176165.506 BY ARC CENTERED AT 499779.701 4173006.420 TO 502173.198 4178020.431 BY ARC CENTERED AT 497172.771 4175598.683 TO 500742.579 4179856.101 BY ARC CENTERED AT 497165.429 4175604.850 TO 497074.872 4181160.112 BY ARC CENTERED AT 491686.406 4179806.020 TO 496459.464 4182649.794 BY ARC CENTERED AT 491679.079 4179818.354 TO 494560.962 4184568.500 BY ARC CENTERED AT 491285.449 4180080.722 TO 494345.879 4184717.845 BY ARC CENTERED AT 490586.357 4180626.985 TO 486509.525 4184401.713  85a EXHIBIT C Location of the Fixed Offshore Boundary Between the United States and California in the Vicinity of the Channel Islands. SANTA ROSA AND SAN MIGUEL ISLANDS NAD 83/WGS 84 UTM ZONE 10 (meters) x-coordinate y-coordinate --------------------------------------------------------------------------- BEGINNING AT 777470.131 3753268.397 BY ARC CENTERED AT 774356.862 3757870.211 TO 777148.970 3753066.747 BY ARC CENTERED AT 773570.674 3757317.033 TO 777095.194 3753022.049 BY ARC CENTERED AT 772897.885 3756662.341 TO 776180.900 3752180.048 BY ARC CENTERED AT 772774.567 3756569.357 TO 773625.206 3751078.861 BY ARC CENTERED AT 772120.395 3756427.195 TO 772764.176 3750908.619 BY ARC CENTERED AT 771825.908 3756384.821 TO 772710.579 3750899.705 BY ARC CENTERED AT 770228.362 3755870.393 TO 771399.409 3750439.207 BY ARC CENTERED AT 769993.388 3755814.357 TO 771170.828 3750384.553 BY ARC CENTERED AT 767318.206 3754387.857 TO 770870.429 3750115.756 BY ARC CENTERED AT 767242.850 3754324.058 TO 769196.688 3749122.938 BY ARC CENTERED AT 766996.191 3754224.599  86a TO 768610.489 3748908.286 BY ARC CENTERED AT 766769.393 3754150.376 TO 767149.556 3748607.397 BY ARC CENTERED AT 766561.591 3754132.199 TO 765939.753 3748611.107 BY ARC CENTERED AT 766388.814 3754148.930 TO 764870.991 3748804.274 BY ARC CENTERED AT 766243.699 3754188.028 TO 763706.258 3749245.303 BY ARC CENTERED AT 766144.581 3754237.669 TO 762923.258 3749710.836 BY ARC CENTERED AT 764808.352 3754937.265 TO 761290.966 3750636.436 BY ARC CENTERED AT 763110.594 3755886.016 TO 760320.406 3751081.436 BY ARC CENTERED AT 762012.095 3756373.631 TO 759506.986 3751414.441 BY ARC CENTERED AT 761905.233 3756426.182 TO 758932.450 3751732.389 BY ARC CENTERED AT 760610.900 3757028.797 TO 755501.364 3754846.647 BY ARC CENTERED AT 757501.005 3760030.330 TO 753490.750 3756184.944 BY ARC CENTERED AT 757445.485 3760087.406 TO 752376.882 3757811.797 BY STRAIGHT LINE TO 752349.529 3757872.722 BY ARC CENTERED AT 757418.132 3760148.331 TO 751862.244 3760183.647 BY ARC CENTERED AT 754972.588 3764787.439 TO 751362.608 3760564.030 BY ARC CENTERED AT 754288.774 3765287.026 TO 750974.548 3760827.761 BY ARC CENTERED AT 753979.969 3765500.724 TO 749584.715 3762102.065  87a BY ARC CENTERED AT 748317.795 3767511.691 TO 748595.050 3761962.613 BY ARC CENTERED AT 747700.695 3767446.158 TO 747846.289 3761892.066 BY STRAIGHT LINE TO 747797.536 3761890.788 BY ARC CENTERED AT 747651.942 3767444.880 TO 747123.684 3761914.050 BY STRAIGHT LINE TO 746660.412 3761958.298 BY STRAIGHT LINE TO 746532.371 3761962.170 BY ARC CENTERED AT 743996.674 3766905.790 TO 745928.864 3761696.589 BY STRAIGHT LINE TO 745914.322 3761690.641 BY ARC CENTERED AT 743811.102 3766833.170 TO 742828.976 3761364.663 BY ARC CENTERED AT 743406.483 3766890.568 TO 741145.125 3761815.590 BY ARC CENTERED AT 743079.513 3767023.976 TO 740812.086 3761951.707 BY ARC CENTERED AT 742477.952 3767252.087 TO 739452.910 3762591.802 BY ARC CENTERED AT 738015.702 3767958.698 TO 738314.245 3762410.725 BY ARC CENTERED AT 737628.906 3767924.294 TO 736867.465 3762420.718 BY ARC CENTERED AT 735909.602 3767893.527 TO 733883.872 3762719.983 BY ARC CENTERED AT 735048.261 3768152.601 TO 732052.008 3763473.754 BY ARC CENTERED AT 734818.891 3768291.793 TO 730467.002 3764837.781 BY ARC CENTERED AT 734594.083 3768557.504 TO 729800.183 3765749.006 BY ARC CENTERED AT 734088.388 3769281.772 TO 728696.340 3770621.532  88a BY ARC CENTERED AT 729023.776 3776167.875 TO 728525.573 3770634.257 BY ARC CENTERED AT 728792.566 3776183.838 TO 726136.888 3771303.622 BY ARC CENTERED AT 728743.192 3776210.384 TO 723231.453 3776910.289 BY ARC CENTERED AT 728753.838 3776300.045 TO 725379.555 3780714.040 BY ARC CENTERED AT 728799.151 3776335.056 TO 727591.070 3781758.125 BY ARC CENTERED AT 728829.758 3776341.965 TO 731127.906 3781400.389 BY ARC CENTERED AT 728855.689 3776330.264 TO 734402.735 3776645.559 BY ARC CENTERED AT 736217.323 3771394.235 TO 734533.485 3776688.933 BY ARC CENTERED AT 740086.051 3776884.256 TO 742270.511 3781992.805 BY ARC CENTERED AT 740148.276 3776858.094 TO 745374.270 3778744.393 BY ARC CENTERED AT 743087.652 3773680.747 TO 745758.915 3778552.450 BY ARC CENTERED AT 743332.106 3773554.477 TO 746220.495 3778300.670 BY ARC CENTERED AT 743451.971 3773483.574 TO 746537.150 3778104.267 BY ARC CENTERED AT 743608.533 3773382.791 TO 747394.291 3777449.383 BY ARC CENTERED AT 746241.092 3772014.379 TO 750978.961 3774916.401 BY ARC CENTERED AT 746329.430 3771874.856 TO 751500.501 3773906.889 BY ARC CENTERED AT 747848.975 3769719.349 TO 751874.597 3773548.644  89a BY ARC CENTERED AT 748088.822 3769482.068 TO 752713.571 3772561.164 BY ARC CENTERED AT 748786.434 3768630.931 TO 753250.520 3771938.660 BY ARC CENTERED AT 755090.576 3766696.205 TO 754850.083 3772246.998 BY ARC CENTERED AT 756149.696 3766845.133 TO 756369.565 3772396.781 BY ARC CENTERED AT 756540.079 3766843.398 TO 757090.981 3772372.018 BY ARC CENTERED AT 756617.314 3766836.246 TO 757861.631 3772251.115 BY ARC CENTERED AT 756994.232 3766763.242 TO 758644.368 3772068.540 BY ARC CENTERED AT 759993.518 3766678.834 TO 759143.767 3772169.468 BY ARC CENTERED AT 763352.127 3768541.956 TO 760900.607 3773527.854 BY STRAIGHT LINE TO 760953.801 3773554.009 BY ARC CENTERED AT 763405.321 3768568.111 TO 762247.436 3774002.119 BY ARC CENTERED AT 764088.116 3768759.883 TO 763505.662 3774285.268 BY ARC CENTERED AT 764254.457 3768779.958 TO 763542.458 3774290.148 BY ARC CENTERED AT 764390.008 3768799.174 TO 766108.928 3774082.587 BY ARC CENTERED AT 764889.429 3768662.074 TO 766146.884 3774073.908 BY ARC CENTERED AT 765892.199 3768523.748 TO 767266.700 3773907.045 BY ARC CENTERED AT 770477.292 3769372.595 TO 767654.428 3774158.049 BY ARC CENTERED AT 771422.567 3770075.126  90a TO 768660.211 3774895.762 BY ARC CENTERED AT 771548.801 3770149.691 TO 768965.075 3775068.380 BY ARC CENTERED AT 771591.793 3770172.515 TO 769974.134 3775487.806 BY ARC CENTERED AT 771856.292 3770260.319 TO 771529.661 3775806.710 BY STRAIGHT LINE TO 771632.190 3775812.748 BY ARC CENTERED AT 771958.821 3770266.357 TO 772038.957 3775821.779 BY ARC CENTERED AT 772676.701 3770302.502 TO 774669.492 3775488.822 BY ARC CENTERED AT 772832.410 3770245.325 TO 775081.597 3775325.708 BY ARC CENTERED AT 772946.806 3770196.205 TO 776761.814 3774235.370 BY STRAIGHT LINE TO 776777.653 3774220.410 BY ARC CENTERED AT 772962.645 3770181.245 TO 776858.754 3774142.238 SANTA ROSA, SANTA CRUZ, AND ANACAPA ISLANDS NAD 83/WGS 84 UTM ZONE 11 (meters) x-coordinate y-coordinate --------------------------------------------------------------------------- BEGINNING AT 223141.246 3774142.238 BY ARC CENTERED AT 219019.440 3770416.444 TO 224007.555 3772863.452 BY ARC CENTERED AT 229558.450 3772625.339 TO 224455.318 3774822.424 BY ARC CENTERED AT 229635.732 3772814.328 TO 225172.663 3776123.429  91a BY ARC CENTERED AT 230169.072 3773693.402 TO 225358.188 3776472.705 BY ARC CENTERED AT 230487.761 3774338.083 TO 225429.949 3776637.577 BY ARC CENTERED AT 230628.300 3774676.383 TO 229844.847 3780176.868 BY STRAIGHT LINE TO 229880.920 3780182.006 BY ARC CENTERED AT 230664.373 3774681.521 TO 231930.695 3780091.287 BY ARC CENTERED AT 231236.273 3774578.854 TO 233108.791 3779809.801 BY ARC CENTERED AT 232697.912 3774269.015 TO 233386.300 3779782.204 BY ARC CENTERED AT 233877.778 3774247.985 TO 235040.326 3779680.997 BY ARC CENTERED AT 234565.195 3774145.350 TO 236504.217 3779352.012 BY ARC CENTERED AT 235921.486 3773826.656 TO 237377.520 3779188.475 BY ARC CENTERED AT 236191.658 3773760.504 TO 237420.215 3779178.971 BY ARC CENTERED AT 236324.311 3773732.125 TO 238624.666 3778789.546 BY ARC CENTERED AT 236786.192 3773546.536 TO 239562.452 3778359.178 BY ARC CENTERED AT 238018.838 3773021.913 TO 240800.992 3777831.149 BY ARC CENTERED AT 238595.931 3772731.459 TO 241246.624 3777614.385 BY ARC CENTERED AT 241518.791 3772065.055 TO 242129.254 3777587.416 BY ARC CENTERED AT 242506.337 3772044.227 TO 242234.089 3777593.553 BY ARC CENTERED AT 242804.672 3772066.929  92a TO 242759.795 3777622.748 BY STRAIGHT LINE TO 242847.075 3777623.453 BY ARC CENTERED AT 242891.952 3772067.634 TO 243666.668 3777569.357 BY ARC CENTERED AT 244599.324 3772092.196 TO 244804.017 3777644.424 BY ARC CENTERED AT 245395.668 3772120.016 TO 247505.957 3777259.648 BY STRAIGHT LINE TO 247554.185 3777239.846 BY ARC CENTERED AT 245443.896 3772100.214 TO 248916.113 3776437.592 BY ARC CENTERED AT 247910.976 3770973.268 TO 249813.236 3776193.473 BY ARC CENTERED AT 248356.390 3770831.875 TO 250206.791 3776070.687 BY ARC CENTERED AT 248707.649 3770720.761 TO 251499.431 3775524.415 BY ARC CENTERED AT 249340.962 3770404.830 TO 251630.006 3775467.380 BY ARC CENTERED AT 249589.724 3770299.558 TO 252085.683 3775263.360 BY STRAIGHT LINE TO 252143.945 3775234.064 BY ARC CENTERED AT 249647.986 3770270.262 TO 253287.078 3774468.612 BY ARC CENTERED AT 249753.434 3770181.131 TO 253792.107 3773996.659 BY ARC CENTERED AT 250342.390 3769641.365 TO 253857.723 3773943.872 BY ARC CENTERED AT 250450.498 3769555.256 TO 254727.925 3773101.064 BY ARC CENTERED AT 254859.837 3767546.630 TO 254798.405 3773102.290 BY ARC CENTERED AT 259242.554 3769767.822 TO 256717.087 3774716.676  93a BY ARC CENTERED AT 260391.757 3770549.430 TO 257747.159 3775435.659 BY STRAIGHT LINE TO 257749.351 3775436.846 BY ARC CENTERED AT 261224.444 3771101.772 TO 261495.696 3776651.147 BY ARC CENTERED AT 261486.043 3771095.155 TO 261666.012 3776648.239 BY ARC CENTERED AT 263128.190 3771288.093 TO 262744.936 3776830.859 BY ARC CENTERED AT 263431.742 3771317.472 TO 265679.019 3776398.701 BY ARC CENTERED AT 263538.375 3771271.637 TO 267167.175 3775478.886 BY ARC CENTERED AT 264917.776 3770398.597 TO 268078.888 3774967.679 BY ARC CENTERED AT 266131.366 3769764.190 TO 268153.309 3774939.215 BY ARC CENTERED AT 266347.559 3769684.845 TO 268901.935 3774618.839 BY ARC CENTERED AT 266497.142 3769610.236 TO 270487.379 3773476.389 BY ARC CENTERED AT 266680.048 3769429.988 TO 270856.023 3773094.735 BY ARC CENTERED AT 267326.802 3768803.612 TO 272158.176 3771547.142 BY ARC CENTERED AT 274230.081 3766391.917 TO 272700.511 3771733.223 BY ARC CENTERED AT 274354.195 3766429.030 TO 273534.884 3771924.288 BY ARC CENTERED AT 275317.317 3766661.963 TO 276423.204 3772106.791 BY ARC CENTERED AT 276338.996 3766551.429 TO 278713.303 3771574.556 BY ARC CENTERED AT 280828.793 3766437.062  94a TO 279188.184 3771745.314 BY ARC CENTERED AT 280945.177 3766474.440 TO 280325.491 3771995.774 BY ARC CENTERED AT 281478.555 3766560.741 TO 280462.046 3772022.961 BY ARC CENTERED AT 281705.543 3766607.903 TO 282039.562 3772153.854 BY ARC CENTERED AT 281820.926 3766602.157 TO 282616.042 3772100.968 BY ARC CENTERED AT 282433.194 3766547.978 TO 286159.427 3770669.182 BY ARC CENTERED AT 282493.564 3766494.187 TO 287659.030 3764447.947 BY ARC CENTERED AT 282466.277 3766423.916 TO 284803.031 3761383.210 BY ARC CENTERED AT 282284.549 3766335.622 TO 283850.735 3761004.937 BY ARC CENTERED AT 281880.957 3766200.042 TO 283223.312 3760808.640 BY ARC CENTERED AT 281651.039 3766137.532 TO 282781.356 3760697.723 BY ARC CENTERED AT 279505.784 3765185.458 TO 282085.701 3760264.771 BY ARC CENTERED AT 279412.184 3765135.237 TO 281626.750 3760039.667 BY STRAIGHT LINE TO 281344.025 3759916.793 BY ARC CENTERED AT 279129.459 3765012.363 TO 279332.886 3759460.088 BY STRAIGHT LINE TO 279281.492 3759458.205 BY ARC CENTERED AT 279078.065 3765010.480 TO 277884.003 3759584.307 BY ARC CENTERED AT 278640.845 3765088.517 TO 277328.968 3759689.618 BY ARC CENTERED AT 278405.846 3765140.257  95a TO 277123.524 3759734.262 BY ARC CENTERED AT 276253.616 3765221.738 TO 276948.219 3759709.328 BY STRAIGHT LINE TO 276927.617 3759706.732 BY ARC CENTERED AT 276233.014 3765219.142 TO 272893.749 3760778.597 BY ARC CENTERED AT 274856.860 3765976.224 TO 269880.287 3763505.827 BY ARC CENTERED AT 264769.639 3765685.371 TO 269479.503 3762738.115 BY ARC CENTERED AT 264732.180 3765624.646 TO 268772.427 3761810.785 BY ARC CENTERED AT 264076.906 3764780.838 TO 265582.400 3759432.696 BY ARC CENTERED AT 263540.819 3764600.005 TO 264235.547 3759087.611 BY ARC CENTERED AT 263246.937 3764554.949 TO 263285.019 3758999.080 BY ARC CENTERED AT 260676.025 3763904.412 TO 260401.907 3758355.178 BY ARC CENTERED AT 259814.254 3763880.013 TO 260037.512 3758328.500 BY ARC CENTERED AT 259693.386 3763873.833 TO 259888.945 3758321.276 BY ARC CENTERED AT 258918.228 3763791.819 TO 258902.335 3758235.842 BY ARC CENTERED AT 258391.110 3763768.272 TO 257839.599 3758239.712 BY ARC CENTERED AT 256845.896 3763706.127 TO 256797.198 3758150.340 BY ARC CENTERED AT 256172.056 3763671.059 TO 255691.687 3758135.864 BY ARC CENTERED AT 253317.935 3763159.253 TO 255606.062 3758096.288  96a BY ARC CENTERED AT 252862.365 3762927.568 TO 255575.122 3758078.848 BY ARC CENTERED AT 252820.649 3762903.992 TO 254366.777 3757567.455 BY ARC CENTERED AT 252078.814 3762630.494 TO 254141.870 3757471.721 BY ARC CENTERED AT 251759.182 3762490.878 TO 253925.584 3757374.645 BY ARC CENTERED AT 251306.508 3762274.602 TO 253710.677 3757265.699 BY ARC CENTERED AT 250445.200 3761760.785 TO 252052.923 3756442.480 BY ARC CENTERED AT 249119.028 3761160.679 TO 250709.792 3755837.277 BY ARC CENTERED AT 248517.137 3760942.314 TO 246645.865 3755710.921 BY ARC CENTERED AT 245164.723 3761065.858 TO 245712.656 3755536.943 BY STRAIGHT LINE TO 245663.707 3755532.092 BY ARC CENTERED AT 245115.774 3761061.007 TO 244512.520 3755537.854 BY ARC CENTERED AT 244697.761 3761090.765 TO 243341.802 3755702.768 BY ARC CENTERED AT 242211.944 3761142.672 TO 242114.877 3755587.520 BY ARC CENTERED AT 239135.530 3760277.150 TO 241192.816 3755116.074 BY ARC CENTERED AT 238891.096 3760172.873 TO 239750.117 3754683.682 BY ARC CENTERED AT 238842.051 3760164.973 TO 238683.902 3754611.224 BY ARC CENTERED AT 238831.779 3760165.256 TO 235612.345 3755637.080 BY ARC CENTERED AT 238809.093 3760181.300  97a TO 234386.119 3756818.796 BY ARC CENTERED AT 237148.288 3761639.538 TO 233462.156 3757482.428 BY ARC CENTERED AT 236846.862 3761888.435 TO 232486.357 3758445.306 BY ARC CENTERED AT 234477.875 3763632.116 TO 231295.435 3759077.864 BY ARC CENTERED AT 225775.592 3759710.695 TO 226295.633 3754179.086 BY ARC CENTERED AT 225486.699 3759675.882 TO 225291.324 3754123.318 BY ARC CENTERED AT 225080.556 3759675.319 TO 224367.741 3754165.235 BY ARC CENTERED AT 222140.452 3759255.256 TO 223492.167 3753866.193 BY ARC CENTERED AT 220143.019 3758299.289 TO 222642.093 3753337.055 BY ARC CENTERED AT 219690.686 3758044.319 TO 222529.869 3753268.397 BEGG ROCK NAD 83/WGS 84 UTM ZONE 11 (meters) x-coordinate y-coordinate --------------------------------------------------------------------------- BEGINNING AT 247769.160 3689313.955 BY ARC CENTERED AT 249183.980 3694686.796 TO 243630.486 3694853.646 BY ARC CENTERED AT 249185.176 3694733.008 TO 246137.240 3699378.352 BY ARC CENTERED AT 249229.926 3694762.680 TO 254574.642 3696280.293 BY ARC CENTERED AT 249237.044 3694737.832 TO 254245.858 3692333.479  98a BY ARC CENTERED AT 249209.675 3694679.964 TO 247769.160 3689313.955 SAN NICOLAS ISLAND NAD 83/WGS 84 UTM ZONE 11 (meters) x-coordinate y-coordinate --------------------------------------------------------------------------- BEGINNING AT 258629.149 3690559.974 BY ARC CENTERED AT 259854.821 3685140.854 TO 260772.831 3690620.488 BY ARC CENTERED AT 262404.279 3685309.414 TO 261301.669 3690754.906 BY ARC CENTERED AT 263853.710 3685819.704 TO 263749.457 3691374.726 BY ARC CENTERED AT 264494.408 3685868.894 TO 268126.752 3690073.084 BY ARC CENTERED AT 264837.319 3685595.499 TO 268603.934 3689679.828 BY ARC CENTERED AT 265737.603 3684920.282 TO 269290.611 3689191.730 BY ARC CENTERED AT 268226.197 3683738.643 TO 270890.115 3688614.366 BY STRAIGHT LINE TO 270966.802 3688572.467 BY ARC CENTERED AT 268302.884 3683696.744 TO 271592.781 3688173.988 BY ARC CENTERED AT 270269.925 3682777.768 TO 273580.041 3687240.085 BY ARC CENTERED AT 270713.534 3682480.644 TO 275094.854 3685897.247 BY STRAIGHT LINE TO 275227.553 3685745.792 BY ARC CENTERED AT 271048.655 3682084.379 TO 275418.986 3685515.026 BY ARC CENTERED AT 271756.301 3681337.243  99a TO 275542.366 3685403.549 BY ARC CENTERED AT 272547.475 3680723.831 TO 276830.225 3684263.208 BY ARC CENTERED AT 274117.834 3679414.283 TO 278174.086 3683211.118 BY STRAIGHT LINE TO 278191.781 3683192.214 BY ARC CENTERED AT 274135.529 3679395.379 TO 276623.780 3674427.709 BY ARC CENTERED AT 272688.949 3678350.239 TO 273722.362 3672891.192 BY ARC CENTERED AT 272660.322 3678344.742 TO 273571.470 3672863.962 BY ARC CENTERED AT 272350.598 3678284.166 TO 272857.873 3672751.372 BY ARC CENTERED AT 271053.820 3678006.325 TO 271830.415 3672504.867 BY STRAIGHT LINE TO 271549.659 3672465.235 BY ARC CENTERED AT 270773.064 3677966.693 TO 271286.816 3672434.497 BY ARC CENTERED AT 269867.610 3677806.181 TO 269538.240 3672259.952 BY ARC CENTERED AT 269740.793 3677812.259 TO 268308.747 3672443.984 BY ARC CENTERED AT 269140.042 3677937.442 TO 267130.313 3672757.662 BY ARC CENTERED AT 267304.130 3678310.942 TO 265983.456 3672914.188 BY ARC CENTERED AT 267154.675 3678345.337 TO 264730.634 3673346.021 BY ARC CENTERED AT 266446.393 3678630.461 TO 264228.655 3673536.271 BY ARC CENTERED AT 265732.229 3678884.953 TO 262476.751 3674382.620 BY ARC CENTERED AT 263016.023 3679912.387  100a TO 261325.085 3674619.952 BY STRAIGHT LINE TO 261157.990 3674673.339 BY ARC CENTERED AT 262848.928 3679965.774 TO 260591.074 3674889.237 BY ARC CENTERED AT 262679.695 3680037.712 TO 258536.198 3676336.285 BY ARC CENTERED AT 261927.366 3680737.320 TO 257817.498 3676998.588 BY ARC CENTERED AT 261345.120 3681291.025 TO 257708.250 3677090.750 BY ARC CENTERED AT 260882.507 3681650.709 TO 255680.154 3679700.156 BY ARC CENTERED AT 257480.892 3684956.246 TO 253102.770 3681535.547 BY ARC CENTERED AT 257408.070 3685047.459 TO 252192.498 3686962.385 BY ARC CENTERED AT 257438.689 3685133.010 TO 258629.149 3690559.974 SANTA BARBARA ISLAND NAD 83/WGS 84 UTM ZONE 11 (meters) x-coordinate y-coordinate --------------------------------------------------------------------------- BEGINNING AT 304057.921 3705917.837 BY ARC CENTERED AT 309591.425 3706417.303 TO 304407.140 3708415.383 BY ARC CENTERED AT 309714.637 3706772.334 TO 305425.202 3710303.607 BY ARC CENTERED AT 309751.687 3706817.826 TO 308609.912 3712255.241 BY ARC CENTERED AT 310892.622 3707189.832 TO 309649.997 3712605.090  101a BY ARC CENTERED AT 311440.512 3707345.509 TO 313671.214 3712434.036 BY ARC CENTERED AT 311594.180 3707280.875 TO 316358.922 3710138.561 BY ARC CENTERED AT 311601.683 3707268.402 TO 317140.249 3706828.609 BY ARC CENTERED AT 311613.053 3706263.600 TO 317166.175 3706442.412 BY ARC CENTERED AT 311630.515 3705967.432 TO 317082.137 3704895.540 BY STRAIGHT LINE TO 317070.669 3704837.214 BY ARC CENTERED AT 311619.047 3705909.106 TO 316754.355 3703788.317 BY ARC CENTERED AT 311349.680 3705076.192 TO 316038.814 3702096.064 BY ARC CENTERED AT 311291.014 3704981.811 TO 315435.264 3701281.226 BY ARC CENTERED AT 311142.999 3704809.058 TO 314488.180 3700372.967 BY ARC CENTERED AT 311087.935 3704766.994 TO 312954.516 3699533.925 BY ARC CENTERED AT 310793.829 3704652.574 TO 310901.248 3699097.613 BY ARC CENTERED AT 309690.900 3704520.176 TO 309947.234 3698970.092 BY ARC CENTERED AT 309504.695 3704508.440 TO 304422.738 3702262.810 BY STRAIGHT LINE TO 304410.375 3702290.788 BY ARC CENTERED AT 309492.332 3704536.418 TO 304007.750 3703648.444 BY STRAIGHT LINE TO 303996.238 3703719.548 BY ARC CENTERED AT 309480.820 3704607.522 TO 303924.836 3704621.006  102a BY ARC CENTERED AT 309480.184 3704706.145 TO 304057.921 3705917.837 SANTA CATALINA ISLAND NAD 83/WGS 84 UTM ZONE 11 (meters) X-COORD Y-COORD --------------------------------------------------------------------------- BEGINNING AT 351237.227 3711104.561 BY ARC CENTERED AT 350852.361 3705561.907 TO 352343.476 3710914.076 BY ARC CENTERED AT 351477.663 3705425.952 TO 352345.409 3710913.771 BY ARC CENTERED AT 352287.340 3705358.074 TO 353889.572 3710678.035 BY ARC CENTERED AT 354171.244 3705129.180 TO 355288.561 3710571.674 BY ARC CENTERED AT 357039.684 3705298.847 TO 360532.315 3709619.803 BY STRAIGHT LINE TO 360710.907 3709475.447 BY ARC CENTERED AT 357218.276 3705154.491 TO 361017.398 3709208.601 BY ARC CENTERED AT 361379.459 3703664.411 TO 363048.653 3708963.744 BY ARC CENTERED AT 361389.742 3703661.183 TO 366362.061 3706140.131 BY ARC CENTERED AT 362698.015 3701963.541 TO 366403.273 3706103.613 BY ARC CENTERED AT 364038.817 3701075.842 TO 367805.169 3705160.414 BY ARC CENTERED AT 367149.514 3699643.236 TO 368266.222 3705085.855 BY ARC CENTERED AT 367667.625 3699562.195  103a TO 368447.413 3705063.201 BY ARC CENTERED AT 367935.849 3699530.802 TO 370755.944 3704317.889 BY ARC CENTERED AT 369366.684 3698938.382 TO 371733.739 3703964.930 BY ARC CENTERED AT 370905.276 3698471.044 TO 374425.878 3702769.241 BY ARC CENTERED AT 372402.441 3697594.800 TO 375009.042 3702501.405 BY ARC CENTERED AT 372499.953 3697544.227 TO 376228.193 3701663.616 BY ARC CENTERED AT 372949.866 3697177.893 TO 378505.590 3697233.230 BY ARC CENTERED AT 374319.062 3693580.544 TO 378947.694 3696653.800 BY ARC CENTERED AT 376014.242 3691935.326 TO 380795.024 3694766.095 BY ARC CENTERED AT 376189.083 3691658.936 TO 381045.515 3694357.863 BY ARC CENTERED AT 377410.960 3690155.584 TO 381810.103 3693549.207 BY ARC CENTERED AT 377545.873 3689987.539 TO 382203.829 3693016.166 BY ARC CENTERED AT 378029.121 3689349.976 TO 383204.276 3691371.586 BY ARC CENTERED AT 378205.069 3688947.320 TO 383492.841 3690652.782 BY ARC CENTERED AT 378317.475 3688631.713 TO 383757.447 3689761.242 BY ARC CENTERED AT 378678.405 3687509.029 TO 384222.523 3687145.860 BY ARC CENTERED AT 378666.798 3687201.140 TO 384107.569 3686075.462 BY ARC CENTERED AT 378576.537 3686601.604  104a TO 384093.059 3685940.456 BY ARC CENTERED AT 378546.438 3686263.143 TO 383743.308 3684298.026 BY ARC CENTERED AT 378516.988 3686183.423 TO 382330.860 3682143.186 BY ARC CENTERED AT 378386.058 3686055.688 TO 381235.850 3681286.221 BY ARC CENTERED AT 377634.313 3685516.831 TO 379556.302 3680303.857 BY ARC CENTERED AT 377509.544 3685469.118 TO 379364.176 3680231.802 BY ARC CENTERED AT 376439.833 3684955.927 TO 372913.678 3680662.284 BY ARC CENTERED AT 375213.076 3685720.140 TO 372334.173 3680968.188 BY ARC CENTERED AT 374773.827 3685959.903 TO 371221.087 3681688.232 BY ARC CENTERED AT 374399.853 3686245.049 TO 370864.376 3681959.079 BY ARC CENTERED AT 370262.172 3687482.347 TO 369552.542 3681971.851 BY ARC CENTERED AT 368030.420 3687315.285 TO 369513.417 3681960.861 BY ARC CENTERED AT 367786.288 3687241.596 TO 369195.704 3681867.335 BY ARC CENTERED AT 367627.911 3687197.547 TO 365889.197 3681920.615 BY ARC CENTERED AT 365942.765 3687476.357 TO 365792.298 3681922.395 BY ARC CENTERED AT 365795.366 3687478.394 TO 364264.939 3682137.333 BY ARC CENTERED AT 365725.800 3687497.839 TO 363651.480 3682343.585 BY ARC CENTERED AT 364976.500 3687739.274  105a TO 363096.772 3682510.913 BY ARC CENTERED AT 364350.579 3687923.593 TO 361547.412 3683126.574 BY ARC CENTERED AT 363734.211 3688234.122 TO 359811.640 3684299.332 BY ARC CENTERED AT 363570.887 3688390.444 TO 359402.034 3684717.597 BY ARC CENTERED AT 363321.173 3688655.806 TO 358885.440 3685310.151 BY ARC CENTERED AT 362972.765 3689073.515 TO 358261.761 3686128.081 BY ARC CENTERED AT 362848.729 3689263.183 TO 357962.712 3686618.192 BY ARC CENTERED AT 361983.815 3690452.233 TO 356883.268 3688249.154 BY ARC CENTERED AT 361825.688 3690787.189 TO 356442.536 3689412.120 BY ARC CENTERED AT 361492.664 3691728.442 TO 355979.870 3691036.896 BY ARC CENTERED AT 361473.922 3691864.257 TO 356104.130 3693290.605 BY ARC CENTERED AT 361653.337 3693565.265 TO 356160.878 3694403.137 BY ARC CENTERED AT 359051.538 3699147.947 TO 356067.513 3694461.292 BY ARC CENTERED AT 357485.729 3699833.238 TO 355840.526 3694526.408 BY ARC CENTERED AT 357354.556 3699872.140 TO 355230.318 3694738.258 BY ARC CENTERED AT 354994.505 3700289.251 TO 351981.170 3695621.387 BY ARC CENTERED AT 354643.742 3700497.846 TO 351309.835 3696053.276 BY ARC CENTERED AT 353827.401 3701006.154  106a TO 349867.721 3697108.710 BY ARC CENTERED AT 353723.059 3701109.398 TO 348716.250 3698700.871 BY STRAIGHT LINE TO 348671.180 3698794.562 BY ARC CENTERED AT 353065.398 3702194.560 TO 348122.424 3699657.603 BY ARC CENTERED AT 352808.780 3702642.098 TO 348090.258 3699708.723 BY ARC CENTERED AT 352119.962 3703533.723 TO 347643.126 3700243.271 BY ARC CENTERED AT 350819.946 3704801.445 TO 345267.248 3704609.912 BY ARC CENTERED AT 350741.318 3705560.542 TO 347583.641 3710131.998 BY ARC CENTERED AT 350754.367 3705569.583 TO 351237.227 3711104.561 SAN CLEMENTE ISLAND NAD 83/WGS 84 UTM ZONE 11 (meters) x-coordinate y-coordinate --------------------------------------------------------------------------- BEGINNING AT 346962.619 3649388.722 BY ARC CENTERED AT 349990.924 3654046.888 TO 345889.209 3650299.213 BY ARC CENTERED AT 349967.945 3654071.884 TO 344450.843 3653415.593 BY ARC CENTERED AT 349215.298 3656273.757 TO 344056.173 3654211.583 BY ARC CENTERED AT 349202.799 3656304.756 TO 345577.601 3660515.109 BY ARC CENTERED AT 349213.318 3656313.836 TO 346921.788 3661375.261  107a BY ARC CENTERED AT 349686.720 3656556.103 TO 350420.844 3662063.389 BY ARC CENTERED AT 351353.099 3656586.160 TO 350631.177 3662095.059 BY ARC CENTERED AT 351373.901 3656588.926 TO 351333.830 3662144.781 BY ARC CENTERED AT 351472.529 3656590.513 TO 353895.974 3661590.118 BY ARC CENTERED AT 352910.848 3656122.151 TO 357037.038 3659842.863 BY ARC CENTERED AT 353417.272 3655627.838 TO 357044.209 3659836.693 BY ARC CENTERED AT 353442.896 3655605.892 TO 357540.203 3659358.387 BY ARC CENTERED AT 353573.196 3655468.400 TO 357588.754 3659308.248 BY ARC CENTERED AT 353987.789 3655077.150 TO 359406.841 3656303.123 BY ARC CENTERED AT 355356.462 3652500.024 TO 360525.076 3654538.299 BY ARC CENTERED AT 355391.528 3652413.253 TO 360828.768 3653555.863 BY ARC CENTERED AT 356893.036 3649634.237 TO 361727.004 3652373.194 BY ARC CENTERED AT 357941.070 3648306.766 TO 362751.565 3651086.744 BY ARC CENTERED AT 358075.524 3648086.114 TO 362917.133 3650811.542 BY ARC CENTERED AT 358398.051 3647579.355 TO 363574.562 3649597.491 BY ARC CENTERED AT 359318.605 3646025.941 TO 364111.875 3648835.513 BY ARC CENTERED AT 359832.851 3645291.633 TO 364347.204 3648530.422  108a BY ARC CENTERED AT 360389.783 3644630.684 TO 364714.227 3648118.996 BY ARC CENTERED AT 361711.037 3643444.599 TO 365110.217 3647839.450 BY ARC CENTERED AT 362212.844 3643098.736 TO 365159.493 3647808.980 BY ARC CENTERED AT 362785.298 3642785.800 TO 366904.781 3646513.936 BY ARC CENTERED AT 363421.365 3642185.547 TO 368217.387 3644990.419 BY ARC CENTERED AT 364538.234 3640827.131 TO 368454.085 3644768.609 BY ARC CENTERED AT 365273.109 3640213.334 TO 369240.467 3644102.962 BY ARC CENTERED AT 365634.965 3639875.730 TO 369876.949 3643463.864 BY ARC CENTERED AT 366175.827 3639320.094 TO 370233.086 3643115.853 BY ARC CENTERED AT 366434.837 3639060.925 TO 370272.810 3643078.274 BY ARC CENTERED AT 367471.846 3638279.969 TO 371702.815 3641881.086 BY ARC CENTERED AT 368192.863 3637574.187 TO 372252.786 3641367.097 BY ARC CENTERED AT 368775.791 3637033.548 TO 372988.154 3640656.411 BY ARC CENTERED AT 369757.063 3636136.545 TO 373898.522 3639840.253 BY ARC CENTERED AT 370826.544 3635210.773 TO 374960.259 3638923.122 BY ARC CENTERED AT 371785.423 3634363.566 TO 375485.268 3638508.476 BY ARC CENTERED AT 372148.234 3634066.254 TO 376843.278 3637037.062  109a BY ARC CENTERED AT 372759.498 3633269.851 TO 377206.420 3636600.620 BY ARC CENTERED AT 373835.330 3632184.186 TO 379206.022 3633607.142 BY ARC CENTERED AT 373842.777 3632156.370 TO 377142.363 3627686.262 BY ARC CENTERED AT 373519.567 3631898.682 TO 376498.280 3627208.650 BY ARC CENTERED AT 373209.933 3631687.032 TO 374436.769 3626268.175 BY ARC CENTERED AT 373087.307 3631657.803 TO 373449.675 3626113.633 BY ARC CENTERED AT 372626.276 3631608.280 TO 371018.812 3626289.897 BY ARC CENTERED AT 368592.857 3631288.285 TO 370615.990 3626113.725 BY ARC CENTERED AT 368370.519 3631195.752 TO 370422.796 3626032.682 BY ARC CENTERED AT 366367.294 3629830.318 TO 362748.039 3625614.855 BY ARC CENTERED AT 365834.229 3630234.873 TO 360835.905 3627808.787 BY ARC CENTERED AT 364322.736 3632134.425 TO 360573.618 3628034.028 BY ARC CENTERED AT 364235.371 3632212.629 TO 359838.296 3628816.327 BY ARC CENTERED AT 362562.155 3633658.819 TO 359659.693 3628921.219 BY ARC CENTERED AT 362551.840 3633665.123 TO 358574.808 3629785.387 BY ARC CENTERED AT 360696.991 3634920.119 TO 356752.947 3631006.853 BY ARC CENTERED AT 359570.439 3635795.472 TO 356108.670 3631449.751  110a BY ARC CENTERED AT 359477.858 3635867.636 TO 353971.493 3635126.640 BY ARC CENTERED AT 358877.877 3637733.655 TO 353693.908 3635734.754 BY ARC CENTERED AT 357757.205 3639524.049 TO 353309.122 3636194.831 BY ARC CENTERED AT 357481.393 3639863.794 TO 352485.292 3637433.133 BY ARC CENTERED AT 356357.777 3641417.226 TO 351266.201 3639193.492 BY ARC CENTERED AT 355813.209 3642386.274 TO 350763.557 3640068.915 BY ARC CENTERED AT 355301.346 3643274.786 TO 349745.504 3643316.643 BY ARC CENTERED AT 355070.642 3644901.584 TO 349558.851 3644202.090 BY ARC CENTERED AT 353292.614 3648316.473 TO 348465.268 3645565.861 BY ARC CENTERED AT 352929.563 3648873.308 TO 347510.798 3647646.065 BY ARC CENTERED AT 352681.927 3649677.952 TO 347481.795 3647721.485 BY ARC CENTERED AT 352461.049 3650186.473 TO 346962.619 3649388.722 4. Plane coordinates refer to the Universal Trans- verse Mercator (UTM). All coordinates are refer- enced to the North American Datum 1983 (NAD 83), which is equivalent to the World Geodetic System 1984 (WGS 84). 5. Pursuant to 43 U.S.C. 1301(b), upon entry of this decree, the federal-state boundary shall be immobi- lized at the coordinates provided in paragraph 3 and shall not be ambulatory.  111a 6. The Court retains jurisdiction to entertain such further proceedings, to enter such orders, and to issue such writs as may from time to time be deemed neces- sary or advisable to give proper force and effect to this decree, or to effectuate the rights of the parties. 

299 Pa. Superior Ct. 40 (1982) 445 A.2d 137 Robert H. CROMPTON, III, Appellant, v. PARK WARD MOTORS, INC., and B & N Leasing Corporation and Network Leasing Company, Inc. Superior Court of Pennsylvania. Argued February 24, 1981. Filed April 30, 1982. *42 Wayde P. Seidensticker, York, for appellant. Robert J. Hoelscher, Philadelphia, for Park Ward, appellee. William A. Atlee, Jr., Lancaster, did not file a brief on behalf of Leasing Company, appellee. Before SPAETH, WIEAND and JOHNSON, JJ. SPAETH, Judge: This is an appeal from an order sustaining preliminary objections and dismissing appellant's complaint for lack of in personam jurisdiction. We affirm. When a defendant properly objects, the plaintiff has the burden of proving that the court has in personam jurisdiction. Whalen v. Walt Disney World Co., 274 Pa.Super. 246, 252 n. 3, 418 A.2d 389, 392 n. 3 (1980); Biel v. Herman Lowenstein, Inc., 411 Pa. 559, 192 A.2d 391, 393 (1963). Here, the record includes the complaint and answer, appellant's deposition, and affidavits filed by appellee Park Ward Motors, Inc. An examination of these documents discloses the following facts. In March 1977, while in New York City, appellant visited appellee Park Ward's showroom. There he saw a gray Rolls Royce sedan, which he decided to lease. Appellant did not, however, sign a contract with Park Ward. Instead, Park Ward sold the Rolls Royce to appellee B & N Leasing Corp., which then leased it to appellant. The lease was executed in the offices of Park Ward, in the presence and at the suggestion of Park Ward's employee. Later, the lease was assigned to appellee Network Leasing Co., Inc. It was understood that appellant was a Pennsylvania resident, and that the Rolls Royce would be used in Pennsylvania. *43 Pennsylvania sales tax was applied to the base monthly rental, and Park Ward removed the Pennsylvania license plate from appellant's old car, a Mercedes Benz, and placed it on the Rolls Royce. Walter McQuillan, whose status is disputed, accompanied appellant to his home in Lancaster County, Pennsylvania, where appellant gave McQuillan title to his Mercedes Benz and a check for the first payment under the lease. McQuillan remained at appellant's home overnight and returned to New York City the next day. In his complaint appellant alleges that Park Ward represented that he would receive a $9,000 trade-in credit for his Mercedes Benz; that this representation was false and known by all of appellees to be false; and that appellant relied on it, and would not have entered into the lease for the Rolls Royce without receiving a $9,000 trade-in credit for his Mercedes Benz. The complaint is in three counts: for damages, recission, and reformation. Park Ward is a Delaware Corporation with its only place of business in New York City. R. 42a. Park Ward's contacts with Pennsylvania may be summarized as follows: it is not qualified to do business in Pennsylvania as a foreign corporation; it has no offices, agents or other personnel in Pennsylvania; it has never transacted business in Pennsylvania nor advertised for or solicited business here; it had, when this action was started, sold a total of seven cars to Pennsylvania residents; all of these sales were transacted in New York; Park Ward's only direct contact with Pennsylvania was McQuillan's trip here. R. 42a-43a. B & N Leasing and Network Leasing are both New York corporations. Each has its principal place of business in New York; is not qualified to do business in Pennsylvania as a foreign corporation; does not have any place of business or personnel or agents working in Pennsylvania; and has never advertised for or solicited business, and has had no direct business dealings, in Pennsylvania. R. 26a-29a. Appellant contends that "McQuillan was the actual agent of B & N and the apparent agent of Park Ward," Brief for Appellant at 19, and that his trip to appellant's home was *44 sufficient "contact" with Pennsylvania to support a finding of in personam jurisdiction over appellees. As regards the fact that McQuillan's status is in dispute, appellant says: Park Ward basically argues: "McQuillan was not our agent, therefore, we did nothing in Lancaster County." B & N argues: "McQuillan may have been our agent, but anything he did in Lancaster County was for the benefit of Park Ward and outside the scope of his employment by us, therefore, we did nothing in Lancaster County either." Surely this raises an obvious issue for the trier of fact to determine for whom and on whose behalf Mr. McQuillan acted because he did do something here for some defendant's benefit. Brief for Appellant at 18-19. As will appear, we find it unnecessary to resolve the dispute regarding McQuillan's status. Under the Pennsylvania Long Arm Statute[1]in personam jurisdiction over a foreign corporation is coextensive with the permissible limits of jurisdiction under the due process clause of the United States Constitution. See Kingsley and Keith v. Mercer International Corporation, 291 Pa.Super. 96, 435 A.2d 585 (1981); Hart v. McCollum, 249 Pa.Super. 267, 271-72, 376 A.2d 644, 647 (1977). Due process requires that a state have "certain minimum contacts . . . such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted). In Kingsley and Keith v. Mercer International, supra, we discussed this "minimum contacts" requirement, and concluded that it had been adequately summarized in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa. Super. 12, 19, 323 A.2d 11, 15 (1974), as follows: First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Hanson v. Denckla [357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 *45 (1958)], supra. Secondly, the cause of action must arise from defendant's activities within the forum state. See Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir. 1968); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550 (D.Conn. 1968). Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. International Shoe Co. v. Washington, supra: see Southern Mach. Co. v. Mohasco Indus., Inc., supra [401 F.2d 374 (6th Cir. 1968)]; see also In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220 (6th Cir. 1972); Kourkene v. American BBR, Inc., 313 F.2d 769 (9th Cir. 1963). And see Bev-Mark, Inc., d/b/a Tuboy Trucking Company, et al. v. Summerfield GMC Truck Co., Inc., et al., 268 Pa.Super. 74, 407 A.2d 443 (1979). As regards Network Leasing, the first part of the Proctor & Schwartz test has not been met. The only way appellant claims any of appellees "purposely availed [itself] of the privilege of acting within the forum state" was by Walter McQuillan's entry into Pennsylvania. Brief for Appellant at 17. It may well be, as appellant urges, that McQuillan was an agent for Park Ward, or B & N Leasing, or even both. However, appellant does not suggest, or point to any evidence, that McQuillan was an agent for Network Leasing. It therefore cannot be subjected to jurisdiction in Pennsylvania. As regards Park Ward and B & N Leasing, the third part of the Proctor & Schwartz test has not been met. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the Court commented on when the exercise of jurisdiction is reasonable: Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State's interest in adjudicating the dispute, see McGee v. International Life Ins. Co., 355 U.S. 220, 223 [78 S.Ct. 199, *46 201, 2 L.Ed.2d 223] (1957); the plaintiff's interest in obtaining convenient and effective relief, see Kulko v. Superior Court, [436 U.S. 84, 92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978)], at least when that interest is not adequately protected by plaintiff's power to choose the forum, cf. Shaffer v. Heitner, 433 U.S. 186, 211 n. 37 [97 S.Ct. 2569, 2583 n. 37, 53 L.Ed.2d 683] (1977); the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several states in furthering fundamental substantive social policies, see Kulko v. Superior Court, supra, at 93, 98 [98 S.Ct. at 1700]. Id. at 292, 100 S.Ct. at 564. While Pennsylvania certainly has some interest in adjudicating this dispute, since it involves a contract affecting a Pennsylvania resident, the interest is not great because the conduct giving rise to the dispute occurred in a foreign jurisdiction and neither Park Ward nor B & N Leasing sought business in Pennsylvania. Thus Pennsylvania's interest is not so great as it would be if there were a likelihood that because of appellees' activities in Pennsylvania, other Pennsylvania residents might enter into similar contracts. Cf. International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Here, appellant went to New York, negotiated his contract there, and returned to Pennsylvania. The only direct contact appellant alleges on the part of either Park Ward or B & N Leasing was McQuillan's trip to Pennsylvania. This trip, however, was not made in the regular course of business but as a courtesy to appellant. For purposes of argument we may assume that while a minimal contact, the trip was nonetheless sufficient to meet the first part of the Proctor & Schwartz test. Its fortuitous nature nevertheless diminishes Pennsylvania's interest in adjudicating the dispute. This case would be different, for example, if Park Ward or B & N Leasing regularly delivered cars into Pennsylvania as part of their usual sales service. Nor would exercise of jurisdiction by a Pennsylvania court obtain the most efficient resolution of appellant's dispute with either Park Ward or B & N Leasing. Aside from *47 appellant, no one involved in the dispute, either as a party to the transaction or as a witness, is a Pennsylvania resident or has any significant connection with Pennsylvania. Indeed, all the others appear to be New York residents. Thus, to resolve appellant's actions against Park Ward and B & N Leasing in Pennsylvania would inconvenience all the other parties to this transaction. Cf. Kingsley and Keith v. Mercer International, supra (exercise of jurisdiction reasonable when breach of contract affected Pennsylvania domiciliary and all the other parties to the transaction were in Pennsylvania). Appellant, we may add, was not precluded from entering a forum where he could have obtained a resolution of his claims against all appellees. We believe that in these circumstances the exercise in Pennsylvania of jurisdiction over either Park Ward or B & N Leasing would be unreasonable within the meaning of the third part of the Proctor & Schwartz test. Affirmed. NOTES [1] See 42 Pa.C.S.A. § 5322(a) and (b).

537 U.S. 836 BANKSv.AMERENUE. No. 01-10149. Supreme Court of United States. October 7, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 2 C. A. 8th Cir. Certiorari denied. Reported below: 25 Fed. Appx. 483.

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before MULLIGAN, LEVIN, 1 and WOLFE Appellate Military Judges UNITED STATES, Appellee v. Private First Class ALEXANDER E. DENSON United States Army, Appellant ARMY 20150137 Headquarters, United States Army Alaska Douglas Watkins, Military Judge (arraignment) Andrew Glass, Military Judge (trial) Colonel Erik L. Christiansen, Staff Judge Advocate For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman JA; Captain Matthew L. Jalandoni, JA (on brief). For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA; Captain Cassandra M. Resposo, JA (on brief). 18 August 2017 ---------------------------------- MEMORANDUM OPINION ---------------------------------- This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. LEVIN, Judge: Appellant raises four errors, three of which merit discussion and relief. First, appellant asks that we set aside his convictions for sexual assault and abusive sexual contact in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017). Here, the factfinder – over defense objection – was permitted to consider appellant’s propensity to commit the charged offenses based on the factfinder’s assessment of the evidence with respect to three other charged offenses. 2 This was error and warrants relief. Second, appellant 1 Judge LEVIN took final action while on active duty. 2 The military judge denied the motion with respect to one specification of sexual assault and ultimately acquitted appellant of that particular specification. DENSON—ARMY 20150137 alleges, and the government concedes in part, that several of the assault charges amounted to an unreasonable multiplication of charges. We agree with some, but not all, of appellant’s averments in that regard. Finally, appellant asks that we provide sentencing relief because it took 303 days for the convening authority to take action on his case. Because we find a due process violation, we agree and grant relief. 3 This case is before us for review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012) [hereinafter UCMJ]. A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of one specification of false official statement, two specifications of sexual assault, two specifications of abusive sexual contact, one specification of aggravated assault, seven specifications of assault consummated by a battery, and two specifications of communicating a threat, in violation of Articles 107, 120, 128, and 134, UCMJ. The convening authority approved the adjudged sentence to a bad-conduct discharge, confinement for sixty-eight months, forfeiture of all pay and allowances, and reduction to Private E-1. Appellant was credited with three days against the sentence to confinement. LAW AND DISCUSSION A. The Admission of Military Rule of Evidence 413 Propensity Evidence 1. Factual Background for the Article 120, UCMJ, Offenses With respect to the allegations involving sexual offenses, appellant’s crimes fall into four categories: misconduct relating to AK; misconduct relating to AS; misconduct relating to LR; and misconduct relating to EC. All of the misconduct occurred within a sixteen-month period. 3 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant personally asserts a number of issues. Among those issues, appellant claims that the record of trial is incomplete because his appellate defense counsel were unable to view Prosecution Exhibit 9, a video of appellant’s interview with the United States Army Criminal Investigation Command (CID). This statement, in part, served as the basis for appellant’s conviction for the Specification of Charge I, making a false official statement. As neither counsel nor appellant submitted an affidavit, there is no evidence before this court that appellate defense counsel were not able to view the exhibit. Furthermore, as part of our own statutory mandate to conduct a de novo review of the factual and legal sufficiency of a conviction, United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003), we have reviewed the record of trial and find this issue to be without merit. To the extent the other issues personally raised by appellant are not mooted by our resolution of other assignments of error, they merit neither discussion nor relief. 2 DENSON—ARMY 20150137 On 13 May 2013, appellant and AK met in person after having previously met online. While together in appellant’s car, appellant pulled out a knife and poked AK’s upper thigh, asking if it hurt. The record is silent as to whether AK responded to appellant’s question. The next day, sitting in appellant’s car, appellant again pulled out a knife and poked AK, asking if it hurt. AK responded, “Yeah, you already knew that would hurt because you had done it before.” That same evening, appellant placed a burning end of his cigarette on the middle of AK’s foot. AK pulled away and appellant responded, “I’m abusive, get used to it.” Apparently not heeding his warning, AK moved to appellant’s lap and the two started kissing. After first kissing AK’s breast in a playful way, appellant then bit down hard despite AK’s pleas for him to stop. Shortly thereafter, AK advised appellant she no longer wished to see him and, within an hour, reported the incident to the Anchorage Police Department. On 11 September 2013, appellant and AS met in person after having previously met online. While appellant and AS were watching a movie in AS’s apartment, appellant exposed his penis and asked AS to perform oral sex on him. AS complied. Later that night, AS was voluntarily guided onto “all fours” and appellant started to penetrate her anus. AS directed appellant to stop, explaining that it hurt. Although he stopped briefly, appellant began to thrust his penis into AS’s anus again. Later, appellant acknowledged to a CID agent that at the time of his statement, he felt like he had sexually assaulted AS. Significantly, appellant told the agent that at the time of the intercourse, he “figured it would be okay” and AS had given him permission to perform anal sex on her previously. In December 2013, appellant was with LR, whom he had previously met online and then married. After initially consenting to anal intercourse, LR told appellant to stop, explaining that “it really hurts.” Instead of stopping, appellant applied more pressure on her back, pushed her face down into a pillow, and stated, “No. You’ll be fine, take it. It’ll get better after a minute or two.” Finally, in August 2014, appellant was with EC, whom he had previously met online and with whom he had engaged in a sexual relationship the year before. 4 While in EC’s home, appellant became aggressive with EC, grabbing her breasts, vagina and buttocks without her permission. Although EC struggled with appellant and managed to get away momentarily, appellant grabbed her and held her by the throat against a door. Appellant released EC when EC’s roommate awoke and interceded. Prior to trial, the government gave the defense notice it intended to offer the charged offenses as propensity evidence under Military Rule of Evidence 4 Trial defense counsel argued that these particular websites were “hook-up sites.” A reasonable inference, no doubt. 3 DENSON—ARMY 20150137 [hereinafter Mil. R. Evid.] 413 and moved the court to make a preliminary ruling on admissibility. The defense opposed the government’s motion to admit evidence under Mil. R. Evid. 413. Although the military judge deferred ruling, he ultimately granted the government’s motion. 2. Hills and Hukill Applied to this Case After appellant's court-martial, our superior court held it is constitutional error for a military judge to give an instruction to a panel that permits Mil. R. Evid. 413 to be applied to evidence of charged sexual misconduct. Hills, 75 M.J. at 352. Our superior court reasoned: The instructions in this case provided the members with directly contradictory statements about the bearing that one charged offense could have on another, one of which required the members to discard the accused's presumption of innocence, and with two different burdens of proof - preponderance of the evidence and beyond a reasonable doubt. Evaluating the instructions in toto, we cannot say that Appellant's right to a presumption of innocence and to be convicted only by proof beyond a reasonable doubt was not seriously muddled and compromised by the instructions as a whole. Id. at 357. Recently, in Hukill, the Court of Appeals for the Armed Forces (C.A.A.F.) explained that the Hills reasoning applies to trials by military judge alone. Hukill, 76 M.J. at 220. In appellant's court-martial, the military judge allowed the propensity evidence involving charged offenses to be used against each charged offense for which appellant was convicted and, therefore, created constitutional error. Id. If instructional error is found when there are constitutional dimensions at play, this court tests for prejudice under the standard of harmless beyond a reasonable doubt. United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006). The inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the defendant's conviction or sentence. United States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). An error is not harmless beyond a reasonable doubt when there is a reasonable possibility the error complained of might have contributed to the conviction. United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007); United States v. Chandler, 74 M.J. 674, 685 (Army Ct. Crim. App. 2015). Here, not only did the military judge’s admission of propensity evidence provide for the lessening of the burden of proof, the government's closing argument 4 DENSON—ARMY 20150137 also drew attention to the propensity evidence. On at least three occasions, trial counsel urged the factfinder to consider the accused’s propensity to commit sexual acts of violence against several other victims. Having reviewed the evidence, given that this is a case of preserved error, we are not convinced beyond a reasonable doubt the propensity instruction did not contribute to the findings of guilty or appellant's sentence. Thus, the findings for these specifications and charges and the sentence cannot stand. We grant relief in our decretal paragraph. B. Unreasonable Multiplication of Charges With respect to this assignment of error, which appellant has couched in terms of unreasonable multiplication of charges, appellant’s charges fall into three categories: assault charges involving LR in January 2014; assault charges involving LR in February 2014; and assault charges involving AK in May 2013. We first address the assault charges involving LR. 1. Specifications 1 and 2 of Charge III and Specifications 3 and 4 of Charge III Appellant was found guilty, inter alia, of the following violations of the UCMJ: CHARGE III: Article 128: SPECIFICATION 1: [In that appellant] [d]id at or near Joint Base Elmendorf-Richardson, Alaska, between about 1 January 2014 and 30 January 2014, commit an assault upon Mrs. L.R. by putting his arm around her neck and applying force likely to produce death or grievous bodily harm, to wit: strangulation with his arm. SPECIFICATION 2: [In that appellant] [d]id at or near Joint Base Elmendorf-Richardson, Alaska, between about 1 January 2014 and 30 January 2014, unlawfully strike Mrs. L.R. on the head with his hand. These specifications stem from appellant's conduct during a single incident in late January 2014. 5 DENSON—ARMY 20150137 Appellant was also found guilty, inter alia, of the following violations of the UCMJ: CHARGE III: Article 128: SPECIFICATION 3: [In that appellant] [d]id at or near Joint Base Elmendorf-Richardson, Alaska, between about 1 February 2014 and 16 February 2014, unlawfully strike Mrs. L.R. on the face with his knee. SPECIFICATION 4: [In that appellant] [d]id at or near Joint Base Elmendorf-Richardson, Alaska, between about 1 February 2014 and 16 February 2014, unlawfully pull the hair of Mrs. L.R. with his hands. These specifications stem from appellant's conduct during a single incident in February 2014. After the military judge ruled that he would merge Specifications 1 and 2 of Charge III for sentencing purposes, as well as merge Specifications 3 and 4 of Charge III for sentencing purposes, he asked trial defense counsel if there was “[a]nything else?” Counsel responded, “No, Your Honor. Thank you.” Defense counsel did not file a motion or otherwise raise the issue of the unreasonable multiplication of charges for findings. Here, the government has conceded the issue. Therefore, we need not decide whether this is a “unit of prosecution” or unreasonable multiplication of charges issue. We also need not decide whether appellant has preserved the issue for appeal. As the government concedes that the specifications are unreasonably multiplied and we have no reason to reject this concession, we provide appellant relief below. 2. Unreasonable Multiplication of Charges as Applied to Specifications 1 and 2 of Additional Charge II With respect to Specifications 1 and 2 of Additional Charge II, we find no error. Appellant was found guilty, inter alia, of the following violations of the UCMJ: ADDITIONAL CHARGE II: Article 128: SPECIFICATION 1: [In that appellant] [d]id at or near Anchorage, Alaska, on or about 16 May 2013, unlawfully burn Ms. A.K.’s foot with a cigarette. 6 DENSON—ARMY 20150137 SPECIFICATION 2: [In that appellant] [d]id at or near Anchorage, Alaska, on or about 16 May 2013, unlawfully poke Ms. A.K.’s leg with a knife. Here, the Quiroz factors on balance weigh in favor of the government. See United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001). First, defense counsel, after findings, made a motion to merge these specifications - only for sentencing purposes - on the grounds that they constituted an unreasonable multiplication of charges. This factor weighs in favor of the government. Regarding the second Quiroz factor, it appears that Specifications 1 and 2 of Additional Charge II were aimed at separate criminal acts. First, appellant used separate objects to assault AK: a knife and then a lit cigarette. Second, there was a break between incidents, rather than a continuous assault. This factor weighs in favor of the government. Regarding the third factor, findings of guilty against appellant for all of the language in the specifications delineated above do not exaggerate appellant's criminality. This factor weighs in favor of the government. Regarding the fourth factor, appellant's punitive exposure was not unreasonably increased because the court merged the specifications for sentencing purposes. This factor weighs in favor of the government. Finally, because the two acts addressed separate acts of criminal conduct, there is no evidence of prosecutorial overreaching or abuse in the drafting of the charges. Thus, the fifth factor weighs in favor of the government. On balance, we find the Quiroz factors with respect to these specifications weigh in favor of the government and, thus, no relief is warranted. C. Speedy Post-Trial Processing Appellant requests relief for dilatory post-trial processing, where the convening authority took action 303 days after the court-martial concluded. Of that period, none was attributable to defense delay. See United States v. Banks, 75 M.J. 746, 748 (Army Ct. Crim. App. 2016). Appellant requests relief pursuant to this court's statutory authority. See Article 66(c), UCMJ; United States v. Collazo, 53 M.J. 721 (Army Ct. Crim. App. 2000) (recognizing the statutory authority of Courts of Criminal Appeals to grant relief for dilatory post-trial processing). However, given appellant's meritorious issue regarding the improper use of propensity evidence of charged misconduct, we must determine if the post-trial delay violated appellant's due process rights to timely post-trial processing. See Toohey v. 7 DENSON—ARMY 20150137 United States, 60 M.J. 100, 102 (C.A.A.F. 2004) (“An appeal that needlessly takes ten years to adjudicate is undoubtedly of little use to a defendant who has been wrongly incarcerated on a ten-year sentence.”) (quoting United States v. Smith, 94 F.3d 204, 207 (6th Cir.1996)). Appellant does not ground his post-trial processing claim as a due process violation. However, we are compelled to determine whether appellant has suffered a due process violation for several reasons. We previously articulated the analysis to be conducted in such a situation in United States v. Jackson, 74 M.J. 710, 718 (Army Ct. Crim. App. 2015). First, in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), our superior court established a “presumption of unreasonable delay that will serve to trigger the full [Barker v. Wingo, 407 U.S. 514 (1972),] analysis where the action of the convening authority is not taken within 120 days of the completion of trial.” Second, our superior court in Moreno further urged this court to exercise “institutional vigilance” in this area of law. Moreno, 63 M.J. at 143. Lastly, our statutory authority under Article 66(c) requires us to review the “entire record.” See United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002) (“Our Court has consistently recognized the broad power of the Courts of Criminal Appeals to protect an accused.”) (citation omitted). These reasons sufficiently establish our authority to review whether appellant suffered a due process violation in the post-trial processing of his case, even though he did not raise this issue before this court. We do so while acknowledging that the record may be less developed given the lack of litigation on this issue. As noted above, in determining whether post-trial delay results in a due process violation, we apply the four-factor test announced in Barker. 407 U.S. at 530; see also Moreno, 63 M.J. at 135. These factors include (1) length of the delay, (2) reasons for the delay, (3) assertion of the right to a timely review and appeal, and (4) prejudice. Id. “Once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation.” Moreno, 63 M.J. at 136. These factors ultimately weigh in favor of appellant. First, the length of the delay – 303 days - is facially unreasonable under any standard. Id. at 142 (establishing a presumption of unreasonable delay when the convening authority takes action more than 120 days after the trial ends). This 794- page record, while lengthy, was not particularly complex or unusual. This factor weighs in favor of appellant. Second, the government's explanations for the delay involve a 14-day defense delay for errata, a 45-day delay for the military judge to authenticate the record of trial, a 58-day delay for the record to be transcribed, and 135-day delay for defense counsel to submit clemency on behalf of his client. With respect to the defense delay to submit clemency, it is the government’s responsibility to hold individuals accountable for the performance of their duties in the military justice system. See 8 DENSON—ARMY 20150137 Banks, 75 M.J. at 748-51 (holding defense counsel to their statutory allowed time for post-trial). Still, we recognize that the defense requested this delay, and that the delay presumably benefited appellant. Thus, we consider these facts when deciding prejudice. With respect to the 58-day delay for the record to be transcribed, our superior court has held “that personnel and administrative issues ... are not legitimate reasons justifying otherwise unreasonable post-trial delay.” United States v. Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2011) (“To allow caseloads to become a factor in determining whether appellate delay is excessive would allow administrative factors to trump the Article 66 and due process rights of appellants.”) (citing Moreno, 63 M.J. at 137) (additional citations and quotations omitted). The reasons for delay weigh in favor of appellant. Third, there is no evidence before us that appellant asserted his right to speedy post-trial processing at any time before transcription was complete, before the military judge authenticated the record of trial, or before the convening authority took action. This factor weighs in favor of the government. Fourth, we apply three factors when analyzing prejudice in the context of a due process violation for post-trial delay: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person's grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired. Moreno, 63 M.J. at 138-39 (citing Rheuark v. Shaw, 628 F.2d 297, 303 n. 8 (5th Cir. 1980)) (additional citations omitted). The first sub-factor is “directly related to the success or failure” of appellant's substantive appeal. Id. at 139. “If the substantive grounds for the appeal are not meritorious, an appellant is in no worse position due to the delay, even though it may have been excessive.” Id. (citing Cody v. Henderson, 936 F.2d 715, 720 (2d Cir. 1991)). Appellant's remedy for the Mil. R. Evid. 413 issue is for this court to set aside appellant's sexual misconduct convictions and the sentence. Put another way, appellant served confinement as part of a sentence we cannot affirm. “[I]f an appeal is not frivolous, a person convicted of a crime may be receiving punishment the effects of which can never be completely reversed or living under the opprobrium of 9 DENSON—ARMY 20150137 guilt when he or she has not been properly proven guilty and may indeed be innocent under the law.” Id. (quoting Rheuark, 628 F.2d at 304). This sub-factor weighs in favor of appellant. The second sub-factor requires “an appellant to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision.” Id. at 140. Our superior court in Moreno concluded sex-offender registration following release from confinement sufficiently established this sub-factor, where appellant's ultimately-successful appeal was still pending at the time of registration. Appellant has not established a factual predicate that he has been released yet from confinement and been placed on a sex-offender registry. Cf. United States v. Bush, 68 M.J. 96, 100 (C.A.A.F. 2009) (requiring an appellant to produce corroborating evidence of employment prejudice). At the same time, we are cognizant sex-offender registration is an “automatic result” after some sex crime convictions. United States v. Riley, 72 M.J. 115, 121 (C.A.A.F. 2013) (citations omitted); see also Dep't of Def. Instr. 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority, app'x. 4 to enclosure 2 (March 11, 2013) (establishing offenses requiring sex offender registration within three days of release from confinement, including abusive sexual contact with a child). Because appellant has not established whether he has registered as a sex offender yet, this factor weighs slightly in favor of the government. The third sub-factor is relevant when a rehearing is authorized, as is the case here. Moreno, 63 M.J. at 140. “In order to prevail on this factor an appellant must be able to specifically identify how he would be prejudiced at rehearing due to delay. Mere speculation is not enough.” Id. at 140-41 (citation omitted). Because appellant did not raise a due process claim, his brief does not address this issue. However, we also acknowledge the difficulty on appeal “in identifying problems that would hinder an appellant's ability to present a defense at a rehearing.” Id. at 141 n. 19. This factor also weighs slightly in favor of the government. In balancing the Barker factors, we have an appellant who, for nearly one year of post-trial processing from sentencing to action, had a meritorious appeal warranting a rehearing. As a result of the post-trial delay, appellant served oppressive incarceration. The government's reasons for this delay are unavailing given the constitutional rights at issue. These factors outweigh appellant's failure to assert his right to speedy post-trial processing, establish particularized anxiety or articulate any prejudice he would suffer at a rehearing. For the same reasons, we cannot conclude that the post-trial delay was harmless beyond a reasonable doubt. See United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006) (“If we conclude that an appellant has been denied the due process right to speedy post-trial review and appeal, ‘we grant relief unless this court is convinced beyond a reasonable doubt that the constitutional error is harmless.’”) (quoting Toohey, 63 M.J. at 363). 10 DENSON—ARMY 20150137 Having found a due process violation, we must determine an appropriate remedy. In Moreno, our superior court listed a range of available remedies: (a) day-for-day reduction in confinement or confinement credit; (b) reduction of forfeitures; (c) set aside of portions of an approved sentence including punitive discharges; (d) set aside of the entire sentence, leaving a sentence of no punishment; (e) a limitation upon the sentence that may be approved by a convening authority following a rehearing; and (f) dismissal of the charges and specifications with or without prejudice. 63 M.J. at 143. As in Moreno, our range of available remedies is limited because we are authorizing a rehearing. Given that appellant has not demonstrated any prejudice he would face at that rehearing, dismissal of the charges and specifications is not appropriate at this stage of the proceedings. Since we are setting aside the sentence, we cannot as a matter of logic only approve certain portions of the sentence, a common remedy when we grant relief pursuant to Article 66, UCMJ. Appellant has already served nearly half of his confinement. In our view, the appropriate remedy is to limit the possible punishment that the convening authority may approve to a bad-conduct discharge, sixty-six months confinement, forfeiture of all pay and allowances, and reduction to the grade of E–1, unless the government tries appellant for additional offenses not tried at the first court-martial. See Article 63, UCMJ. CONCLUSION The findings of guilty as to Charge II and its specifications and Additional Charge I and its specifications are set aside in light of our superior court’s decisions in Hills and Hukill. 75 M.J. 350; 76 M.J. 219. Specifications 2 and 4 of Charge III are conditionally dismissed based on an unreasonable multiplication of charges. See United States v. Britton, 47 M.J. 195, 203 (C.A.A.F. 1997) (J. Effron concurring); United States v. Hines, 75 M.J. 734, 738 n.4 (Army. Ct. Crim. App. 2016); United States v. Woods, 21 M.J. 856, 876 (A.C.M.R. 1986). Our dismissal is conditioned on Specifications 1 and 3 of Charge III surviving the “final judgment” as to the legality of the proceedings. See Article 71(c)(1), UCMJ (defining final judgment as to the legality of the proceedings). The remaining findings of guilty are AFFIRMED. 11 DENSON—ARMY 20150137 Additionally, the sentence is set aside. The case is returned to the same or a different convening authority. A rehearing is directed on Charge II and its specifications, Additional Charge I and its specifications, and the sentence. If the convening authority determines that a rehearing on those charges is impracticable, he may dismiss the charges and order a rehearing on the sentence only. If the convening authority determines that a rehearing on the sentence likewise is impracticable, he may take any other lawful action. In any event, the convening authority shall not approve a sentence in excess of a bad-conduct discharge, sixty- six months confinement, forfeiture of all pay and allowances, and reduction to the grade of Private E–1, unless the government tries appellant for additional offenses not tried at the first court-martial. Senior Judge MULLIGAN and Judge WOLFE concur. FOR THE COURT: MALCOLM MALCOLM H. H. SQUIRES, SQUIRES, JR. JR. Clerk of Court Clerk of Court 12 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-7118 CASEY LEWIS, Petitioner - Appellant, v. LEVERN COHEN, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:18-cv-02067-DCN) Submitted: November 15, 2018 Decided: November 20, 2018 Before MOTZ and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Casey Lewis, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Casey Lewis seeks to appeal the district court’s order dismissing without prejudice his 28 U.S.C. § 2254 (2012) petition as successive and unauthorized. The district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2012). The magistrate judge recommended that relief be denied and advised Lewis that failure to file timely, specific objections to this recommendation would waive appellate review of a district court order based upon the recommendation. The timely filing of specific objections to a magistrate judge’s recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned of the consequences of noncompliance. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985). Lewis has waived appellate review by failing to file objections. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2 

NUMBER 13-19-00056-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ JOSIE PEREZ, Appellant, v. BRADFORD'S ALL AMERICAN AND BRADFORD TAYLOR, Appellees. ____________________________________________________________ On appeal from the County Court at Law No. 2 of Nueces County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Chief Justice Contreras and Justices Hinojosa and Tijerina Memorandum Opinion by Justice Tijerina Appellant, Josie Perez, filed an appeal from a judgment entered by the County Court at Law No. 2 of Nueces County, Texas, in cause number 2016CCV-62221-2. Appellant has filed an unopposed motion to dismiss the appeal on grounds that the parties have reached a full and final settlement of all matters. Appellant requests that this Court dismiss the appeal. The Court, having considered the documents on file and appellant’s unopposed motion to dismiss the appeal, is of the opinion that the motion should be granted. See TEX. R. APP. P. 42.1(a). Appellant’s motion to dismiss is granted, and the appeal is hereby DISMISSED. Costs will be taxed against appellant. See TEX. R. APP. P. 42.1(d) ("Absent agreement of the parties, the court will tax costs against the appellant."). Having dismissed the appeal at appellant's request, no motion for rehearing will be entertained, and our mandate will issue forthwith. JAIME TIJERINA, Justice Delivered and filed the 19th day of September, 2019. 2 

314 B.R. 753 (2004) In re NATIONAL HYDRO-VAC INDUSTRIAL SERVICES, L.L.C., Debtor. National Hydro-Vac Industrial Services, L.L.C., Plaintiff, v. Federal Signal Corporation; Guzzler Manufacturing, Inc., Defendants, Transamerica Equipment Financial Services Corporation, Intervener. Bankruptcy No. 5:01-BK-50466M. Adversary No. 5:01-AP-5016. United States Bankruptcy Court, E.D. Arkansas, Pine Bluff Division. June 15, 2004. *754 *755 *756 *757 Brian Rosenthal, Herbert C. Rule, III, Rose Law Firm, Kevin P. Keech, Keech Law Firm, Little Rock, AR, for Debtor. Thomas S. Streetman, Streetman, Meeks & McMillan, Crossett, AR, for Trustee. William S. Meeks, Streetman, Meeks & McMillan, Crossett, AR, pro se. Charles W. Tucker, U.S. Trustee's Office, Little Rock, AR, for U.S. Trustee. Stephen L. Gershner, Davidson Law Firm, Little Rock, AR, for Defendant. MEMORANDUM OPINION JAMES G. MIXON, Bankruptcy Judge. National Hydro-Vac Industrial Services, L.L.C. ("Debtor") petitioned for relief under the provisions of Chapter 11 of the United States Bankruptcy Code on March 15, 2001. On April 3, 2001, the Debtor filed a complaint against Federal Signal Corporation ("Federal Signal") for the turnover of three specially manufactured pieces of equipment or the proceeds from the sale of the units in the sum of $188,000.00. Transamerica Equipment Financial Services Corporation ("Transamerica") filed a complaint in intervention on June 26, 2001, alleging that it held perfected security interests in the three units in question, which were allegedly sold by Federal Signal. Transamerica asserted a lien in the sale proceeds held by Federal Signal. On June 27, 2001, the Debtor's complaint was amended to add Guzzler Manufacturing, Inc. ("Guzzler"), a subsidiary corporation of Federal Signal, as a party defendant. The amended complaint alleged conversion and breach of fiduciary duty on the part of both defendants. The amended complaint asked for the turnover of the sale proceeds of the units in question pursuant to 11 U.S.C. § 542, damages resulting from conversion of the property, punitive damages, attorney's fees, and costs. Federal Signal's answer to the original complaint denied that it had any property of the Debtor and asserted that the equipment in question had been sold prior to the date the bankruptcy petition was filed. Federal Signal filed an answer to Transamerica's complaint in intervention, alleging that it lacked knowledge of Transamerica's rights. On July 13, 2001, Federal Signal and Guzzler answered the first amended complaint, denying the allegations and asserting a right of setoff. Subsequently, the case was converted to Chapter 7 on July 20, 2001, and William S. Meeks was appointed Trustee. After the conversion, the Trustee assumed the Debtor's cause of action. Trial on the merits was held in Little Rock, Arkansas, on January 29, 2004, and the matter was taken under advisement to review the evidence and briefs. This Court has jurisdiction in accordance with 28 U.S.C. § 1334 and § 157. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(E) (2000), and this Court may enter a final judgment in this case. The following shall constitute the Court's findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. FACTS The Debtor is an Arkansas limited liability company formed at Pine Bluff, Arkansas, and later headquartered in the Houston, Texas, area. (Tr. at 105.) At some *758 point in time prior to spring of 2000, the Debtor purchased certain assets of the Freemyer Company. These assets included the three industrial vacuum units manufactured by Guzzler that are the subject of this litigation. TWO UNITS SOLD TO VAC-TECH John Stafford, the Used Equipment and Service Sales Manager of Guzzler in 2000, was called as a witness by the Trustee. He testified that sometime in early 2000 (at least a year prior to the bankruptcy filing), he was contacted by Guzzler's New Equipment Sales Manager about a possible transaction whereby the Debtor would transfer three pieces of used equipment in exchange for the purchase of one new one. (Tr. at 13.) Stafford expressed interest in the transaction but wanted to inspect the equipment. As a result, the equipment was transported to Birmingham, Alabama, for inspection. The inspection was conducted at some time prior to April and was satisfactory. He said the New Equipment Sales Manager subsequently "proceeded with a deal to trade three in for one new one." (Tr. at 15.) Stafford began contacting customers to resell three units. He stated, "In the process of our contact, we started to refurbish the vacuum equipment and make lists and that sort of thing to decide what needed to be done to the equipment so that it could be sold." (Tr. at 16.) Guzzler reached an agreement with Vac-Tech, a company located in Australia, and entered into a written contract to sell two of the units at issue to Vac-Tech. The sale and delivery were completed by August 2000. The purchase price for each of the units was $110,000.00. Stafford testified that the original trade-in deal with the Debtor fell through and subsequently Guzzler reached an agreement with the Debtor to sell two of the units to Guzzler for $65,000.00 each. Stafford never testified as to exactly when the oral agreement to sell the units occurred. He said, "I originally prepared these Bills of Sale [between the Debtor and Guzzler] for $75,000.00 when they [sic] agreement was made on the first unit. That's when we agreed to take the three trades for one. I made the Bills of Sale somewhere in that time frame." (Tr. at 81.) Stafford stated that he listed $75,000.00 as the purchase price in the two bills of sale even though the true sale price was $65,000.00. This was done, he said, to conceal the real selling price. Stafford stated after the sales from the Debtor to Guzzler were completed, Guzzler determined to exercise its right of set off and credited the sale price against the Debtor's account with Guzzler. Robert Racic, a former employee of Federal Signal, was called as a witness by the Debtor. He acknowledged that the Debtor's account with Federal Signal Leasing maintained on behalf of Guzzler was credited in the amount of $97,973.32 in November 2000 and, at that point, there was still a balance of $97,803.44 that was past due.[1] This credit was applied from the proceeds of the sale of the two units to Vac-Tech. He acknowledged he received the $110,000.00 purchase price per unit from Vac-Tech June 21, 2000, but the credit to the Debtor's account of $97,973.32 did not occur until November 1, 2000. The Debtor's separate account with Guzzler was credited in the amount of $32,026.68. (Pl.'s Ex. 5.) Thus, the Debtor received a total of $130,000.00 in credit toward various *759 accounts owed to Federal Signal and Guzzler. The relevant events were recalled by the Debtor's former President, Raymond Pascale. He testified that after the Debtor purchased some tractor-mounted vacuum units, he had asked Guzzler to inspect the equipment. The two units later sold to Vac-Tech and other units were transported to Guzzler's facility in Alabama. He stated that Stafford called him some time in May or June 2000, and asked if Pascale would be willing to sell two trailer-mounted vacuum units. (Tr. at 107.) The units were encumbered by a lien securing a debt to Transamerica. After some negotiation, Pascale indicated a willingness to sell the units for $75,000.00 each and Stafford agreed to that price. Stafford prepared two bills of sale for each of the units, both dated August 1, 2000, and forwarded them to Pascale. (See Pl.'s Exs. 17, 18.) The bills of sale reflected the Debtor as the seller and Guzzler as the buyer. (Tr. at 109.) The stated purchase price was $75,000.00 for each unit. Pascale signed both bills of sale as representative of the Debtor and returned them to Stafford around August 1, 2000. Pascale testified that Transamerica had been granted a lien in the 80 units purchased from Freemyer by the Debtor, and a "certain value" had been assigned to each of the units. (Tr. at 110.) From the proceeds of the sale of the two units, Pascale intended to pay some or all of the indebtedness owed on each unit to Transamerica. He stated $75,000.00 for each of the units sold to Guzzler would be "a bit short" in defraying the indebtedness to Transamerica. (Tr. at 110.) The Debtor never received any of the proceeds from the sale of the two units to Guzzler. Pascale testified that he never authorized Guzzler or Federal Signal to setoff or credit the sale proceeds against the Debtor's obligation to Guzzler or Federal Signal. He stated he was surprised when the Debtor's account with Guzzler was credited rather than the proceeds being sent to the Debtor. (Tr. at 114.) Pascale did not testify when payment was due from Guzzler to the Debtor, except he stated that he expected to receive $150,000.00 after he signed the two bills of sale. (Tr. at 110.) THIRD UNIT SOLD TO ACE PIPE Pascale also testified about the sale of the third unit. The third unit was apparently transported to Guzzler's facility in Alabama at the same time as the other two units that were sold to Vac-Tech. Pascale stated that before any inspection or refurbishing was authorized, he received a call from Stafford asking if he would sell the unit for $58,000.00 and Pascale agreed. He stated that he was not certain who the buyer was. He said he intended to pay off Transamerica with the sale proceeds but he never received any proceeds from Guzzler. Stafford testified that Guzzler was acting as a broker for the Debtor to sell the third unit to Ace Pipe. Exhibit 13 contained an inter-company message confirming the details of the transaction as follows: The unit was sold to Ace Pipe for $62,500.00. Of these proceeds, $4,500 was to be retained by Guzzler and the remaining $58,000.00 sent to National Hydro-Vac. However, with the status of National Hydro-Vac a memo from corporate was initiated which requested that the proceeds be applied to the outstanding invoices (which had previously been charged off in August) of National Hydro-Vac. *760 Plaintiff's Exhibit 13, Document 7, Message dated September 20, 2001. Stafford identified the certificate of title to the third unit reflecting a lien in favor of Transamerica dated March 1, 2001. (Pl.'s Ex. 3.) Guzzler received $62,500.00 from Ace Pipe on December 26, 2000. Plaintiff's Exhibit 13 contains accounting records of Vactor (another subsidiary of Federal Signal that handles accounting for Guzzler). The exhibit shows receipt of $62,500.00 from Ace Pipe. The record reflects the proceeds were not paid to the Debtor but instead were applied to bad debt reserve in the amount of $19,210.00 and transferred intercompany in the amount of $43,290.00 to "Guzzler Federal Signal Leasing account for National Hydro-Vac's outstanding balances." (Pl.'s Ex. 13, document 7.) The disbursement was accomplished and noted on the company books on October 5, 2001. (See Pl.'s Ex. 13, document 9, October 4, 2001 memo from Gary Nink.) Stafford acknowledged that the proceeds of the sale to Ace were disbursed between the two accounts in October 2001 and that the disbursement was made with knowledge of the pending bankruptcy case. Exhibit 10 contains a bill of sale evidencing the sale of the third unit from Guzzler to Ace on December 18, 2000, for $62,500.00. Stafford agreed that the third unit was sold to Ace before receipt of the bill of sale from the Debtor to Guzzler. (Tr. at 76.) ARGUMENTS The Trustee argues that Guzzler is liable for the tort of conversion because the evidence shows that when Guzzler received funds from Vac-Tech, Guzzler did not immediately pay the Debtor. The Trustee reasons that, pursuant to state law, Guzzler is not entitled to setoff a debt against a judgment for conversion. Second, the Trustee argues that when Guzzler received the proceeds from the sale of two units to Vac-Tech in June or July 2000, Guzzler's maximum right of setoff was $32,026.68. Third, the Trustee contends that the right of setoff does not exist because the debts were not mutual since some of the funds were transferred inter-company to Federal Signal, an entity that was not a creditor of the Debtor. The Trustee's fourth argument is that Guzzler was acting in a fiduciary capacity as agent of a principal, that it breached its duty by failing to turn over the sale proceeds from the sale of the units, and that damages of $282,500.00 resulted. Additionally, the Trustee asks for punitive damages to punish the Defendants for their actions. The final argument is that the setoff of the proceeds from the sale of the third unit to Ace occurred post-petition in violation of sections 362 and 549 of the Bankruptcy Code and should be set aside as void. Because of the violation of the automatic stay, the Trustee contends that sanctions should be imposed on Guzzler. Guzzler and Federal Signal argue that Guzzler had a right to set off the sums owed to the Debtor and that the Debtor has not been damaged by the setoff. While acknowledging that the setoff of the sale proceeds of the third unit to Ace may have violated the automatic stay, Guzzler states that it should now be permitted to accomplish the setoff. The Defendant, Federal Signal, argues it should be dismissed from the lawsuit because all decisions were made by Guzzler. The Defendants also deny that they converted the Debtor's property and state that punitive damages are not justified and have been waived by the Debtor's invoking of the bankruptcy court's equitable jurisdiction. As to the complaint in intervention, the Defendants argue that Transamerica presented *761 no evidence of its security interest in the three units in question. TRANSAMERICA CLAIM Transamerica alleges in its complaint in intervention that it held a perfected security interest and claims a lien in the three units. Brian DeRusha of Transamerica testified that Transamerica never received any funds from Guzzler and never released its lien in the three units. Pascale testified that the Debtor purchased 80 units from the Freemeyer Company and Transamerica financed the entire purchase. The three units in question, all made by Guzzler, were part of the acquisition. There was no other testimony concerning Transamerica's lien, and counsel makes no argument on behalf of Transamerica in his brief. Since Transamerica was secured by collateral in addition to the three units in question, the record in this case does not establish that the security interest in favor of Transamerica is supported by value as required by Arkansas law on secured transactions. See Ark.Code Ann. § 4-9-203(1)(b)(Michie Supp.1999). Therefore, Transamerica has not established it has a valid lien in the proceeds of the sale of the three units. CONVERSION Under Arkansas law, conversion is any distinct act of dominion wrongfully exerted over property in denial of, or inconsistent with the owner's rights. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 247, 961 S.W.2d 729, 732 (1998) (citing South v. Smith, 326 Ark. 774, 934 S.W.2d 503 (1996)) (citing Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995)); Reed v. Hamilton, 315 Ark. 56, 864 S.W.2d 845 (1993); Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 181, 839 S.W.2d 180, 184 (1992) (citing Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991)). In defining conversion, the Arkansas Supreme Court has stated that "The conversion may not be a manual taking or for the defendant's use: if the defendant exercises control over the goods in exclusion, or defiance, of the plaintiff's right, it is a conversion, whether it is for his own use or another's use." (Our italics). Big A Warehouse Distributors, Inc. v. Rye Auto Supply, Inc., 19 Ark.App. 286, 719 S.W.2d 716 (1986). "Perhaps the most common way in which conversion is committed is by an unauthorized transfer or disposal of possession of the goods to one who is not entitled to them." Prosser and Keeton on the Law of Torts, 5th Edition § 15 p. 92. McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 329-30, 749 S.W.2d 653, 655 (1988). Where a party exercises dominion over property in violation of the true owner's rights to possession, either actual or constructive dominion, a conversion occurs. Holland v. Walls, 3 Ark.App. 20, 24, 621 S.W.2d 496, 498 (1981)(citing Plunkett-Jarrell Grocery Co. v. Terry, 222 Ark. 784, 263 S.W.2d 229 (1953)). Conversion is a common law intentional tort action. Buck v. Gillham, 80 Ark.App. 375, 379, 96 S.W.3d 750, 753 (2003); McQuillan, 331 Ark. at 247, 961 S.W.2d at 732 (citing France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987); Gardner v. Robinson, 42 Ark.App. 90, 854 S.W.2d 356 (1993)). A converter cannot escape liability even if the proceeds of the conversion are applied in a manner that may ultimately benefit the owner. McKenzie, 295 Ark. at 330, 749 S.W.2d at 656. Moreover, if there has been a wrongful taking of one's property in subversion of his rights, a conversion *762 occurs irrespective of whether there was a demand and refusal to return the property. Ford Motor Credit Co. v. Herring, 267 Ark. 201, 204, 589 S.W.2d 584, 586 (1979) (citing Westark Prod. Credit Ass'n v. Shouse, 227 Ark. 1141, 305 S.W.2d 127 (1957); Plunkett-Jarrell Grocery Co. v. Terry, 222 Ark. 784, 263 S.W.2d 229 (1953); Meyers v. Meyers, 214 Ark. 273, 216 S.W.2d 54 (1948); Barnett Bros. Mercantile Co. v. Jarrett, 133 Ark. 173, 202 S.W. 474 (1918)). Generally, the proper measure of damage for conversion of property is the market value of the property at the time and place of the conversion. Buck, 80 Ark.App. at 379, 96 S.W.3d at 753; McQuillan, 331 Ark. at 250, 961 S.W.2d at 733 (citing Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979)). Fair market value as a measure of damages for conversion is defined as the price the personalty would bring between a willing seller and a willing buyer in the open market after negotiations. JAG Consulting v. Eubanks, 77 Ark.App. 232, 238, 72 S.W.3d 549, 553 (2002) (citing Minerva Enters., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992); Southern Bus. Co. v. Simpson, 214 Ark. 323, 215 S.W.2d 699 (1948)). TWO UNITS SOLD TO VAC-TECH Under these facts, the Trustee has failed to establish that Guzzler committed the tort of conversion of the two units sold to Vac-Tech. With reference to state law regarding the sale of goods, the term "goods" refers to all things which are moveable at the time of the identification to the contract. Ark.Code Ann. § 4-2-105(1)(Michie 1991). The two units sold to Vac-Tech qualify as "goods" under the statute. A sale of goods occurs when title passes to the buyer "at the time and place at which the seller completes his performance with reference to the physical delivery of the goods . . . even though a document of title is to be delivered at a different time or place. . . ." Ark.Code Ann. § 4-2-401(2)(Michie 1991); American Aviation, Inc. v. Aviation Ins. Managers, Inc., 244 Ark. 829, 835, 427 S.W.2d 544, 547 (1968). Where delivery is to be made without moving the goods, "if the goods are at the time of contracting already identified and no documents are to be delivered, title passes at the time and place of contracting." Ark.Code Ann § 4-2-401(b) (Michie 1991). Unless the buyer and seller have agreed otherwise, "payment is due at the time and place at which the buyer is to receive the goods. . . ." Ark.Code Ann. § 4-2-310 (Michie 1991). None of the documentary evidence or testimony indicates that the parties agreed upon when payment would be due from Guzzler. The Trustee argues that the Debtor's right to payment occurred when Guzzler received payment from Vac-Tech and that the Debtor should be granted judgment for the full price Guzzler received for the two units, or at least $75,000.00 each. The statute governing the sale of goods indicates that the Debtor's right to payment occurred even earlier. Since the goods were already in Guzzler's possession at the time of contracting in May or June of 2000, title passed to Guzzler and payment was due to the Debtor at the end of June at the very latest. Guzzler acquired the possession of two units by agreement with the Debtor. At some time in May or June 2000, the parties agreed on a sale from the Debtor to Guzzler of both units for $75,000.00 each.[2] Guzzler's actions in re-selling the units to *763 Vac-Tech were in reliance on that agreement and were consistent with the Debtor's ownership rights because the Debtor had agreed to transfer its ownership rights to Guzzler in exchange for payment of $75,000.00 for each unit. Stafford testified, "[W]e had made this original deal and we had gotten the okay to go ahead with the refurbishment from Mr. Pascale, and we were in the process of doing this." (Tr. at 80.) The fact that a formal bill of sale was not signed until August 1, 2000, is immaterial. The two units, having already been delivered to Guzzler by the Debtor, were sold to Guzzler when the parties reached an agreement, and not when the bills of sale were executed. Guzzler's failure to pay the Debtor at the time of contracting should be viewed as a breach of a contract rather than as a conversion. The Debtor's remedy was to sue Guzzler under the contract. See Ark.Code Ann. § 4-2-709(1)(a) (Michie 1991) ("When the buyer fails to pay the price as it becomes due the seller may recover . . . the price . . . of goods accepted . . . "). Also, there is no evidence in the record to support the Trustee's claim that the Debtor had any ownership interest in the funds Guzzler received from Vac-Tech. CONVERSION OF THIRD UNIT However, the facts regarding the third unit sold to Ace clearly support the conclusion that Guzzler committed the tort of conversion. The third unit was sent to Guzzler for inspection and possible repair and refurbishing by agreement of the parties. Although Pascale did not remember if he was selling to Guzzler or someone else, both parties agreed that the Debtor was to receive $58,000.00. Stafford recalled that Guzzler was acting as a broker for the sale and his testimony was corroborated by Gary Nink in an e-mail dated September 21, 2001, in which Guzzler was described as acting as a broker to assist the sale. (Pl.'s Ex. 13, Document 6.) The unit was sold to Ace Pipe for $62,500.00. It was anticipated that Guzzler would retain $4500.00 as a commission and the balance of $58,000.00 was to be remitted to the Debtor. Under these facts, Guzzler was acting in the capacity of a broker for the Debtor, and when it received the sale proceeds from Ace on December 26, 2000, $58,000.00 of the proceeds belonged to the Debtor. Unlike the proceeds from the sale of the two units to Vac-Tech, the funds received from Ace were property of the Debtor, and Guzzler owed a fiduciary responsibility as the broker to remit the money to the Debtor. Here, Guzzler simply seized the Debtor's property and applied it to a debt without any legal right established by a lien or by virtue of judicial process. Establishing the measure of damages for the conversion is simplified because of the parties' agreement that the Debtor would accept $58,000.00 for the unit and this amount was later disbursed to various accounts by Federal Signal and Guzzler. Therefore, the actual damages for conversion are fixed at $58,000.00. See McQuillan, 331 Ark. at 250, 961 S.W.2d at 733 (1998)(holding the proper measure of damages is the market value of the property at the time and place of the conversion). RIGHT TO SETOFF OF VAC-TECH UNITS The Court has determined that Guzzler did not commit the tort of conversion *764 in regard to the two units sold to Vac-Tech. Instead of paying the Debtor the $150,000.00 it agreed to pay for the purchase of the equipment, Guzzler exercised its right of setoff pre-petition by crediting the Debtor's account in the sum of $130,000.00 in the latter part of 2000. Aside from the definition of setoff as a type of counterclaim or affirmative defense applicable in court proceedings, the term also refers to the extrajudicial right of entities that owe each other money to apply their mutual debts against each other. Equitable setoff allows mutually indebted entities to avoid the "absurdity of making A pay B when B owes A." Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 18, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995) (quoting Studley v. Boylston Nat'l Bank, 229 U.S. 523, 528, 33 S.Ct. 806, 57 L.Ed. 1313 (1913)). The right of setoff entitles either party unilaterally to reduce the amount owed to the other party by the amount owed to the party exercising setoff. With regard to the right of setoff, the Bankruptcy Code provides that Except as otherwise provided in this section and in sections 362 and 363 of this title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case against a claim of such creditor against the debtor that arose before the commencement of the case. . . . 11 U.S.C. § 553(a) (2000). This section does not create a right of setoff but merely preserves the right as it exists under non-bankruptcy law. Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 18, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995). In order for a setoff action to be valid under the Bankruptcy Code, four requirements must be met: The two debts must be mutual; the debt owing to the creditor must arise before the bankruptcy case; the claim against the creditor must arise before the bankruptcy case; and state law allows setoff under the circumstances. River Valley Bank v. Ace Sports Management L.L.C. (In re Ace Sports Management, LLC), 271 B.R. 134, 140-141 (Bankr.E.D.Ark.2001)(citing Austin v. Cockings (In re Cockings), 195 B.R. 915, 917 (Bankr.E.D.Ark.1996)(citing In re Whitaker, 173 B.R. 359, 361 (Bankr.S.D.Ohio 1994); In re MetCo Mining & Minerals, Inc., 171 B.R. 210, 217 (Bankr.W.D.Pa.1994); In re Glaze, 169 B.R. 956, 964 (Bankr.D.Ariz.1994))). Each of these elements existed at the time Guzzler credited the Debtor's account with the sale proceeds from Vac-Tech. The fact that the setoff was accomplished through inter-company transfer does not alter the fact that the setoff was proper. There is no evidence to contradict Guzzler's witness who stated that accounting functions by the subsidiary companies were performed on behalf of Guzzler. Despite Guzzler's right to setoff, it remains indebted to the Debtor for $20,000.00, which is the difference between the amount of credit applied to the Debtor's accounts and the amount the Court has found was owing to the Debtor under the terms of the parties' agreement to sell the two units for $75,000.00 each. Guzzler has alleged a right of setoff in response to the Trustee's claim for turnover; however, Guzzler did not present a case in chief, and the record presented does not establish any current right of setoff with regard to the $20,000.00 not previously credited or paid to the Debtor. There is evidence in the record that in January 2001, the Debtor was indebted to Guzzler for more than $1 million, but Guzzler had collateral for the debt, and the *765 record is silent as to whether the Debtor owed Guzzler any monies at the time of the hearing. Therefore, the Trustee is entitled to a judgment of turnover in the sum of $20,000.00, which represents the balance of the purchase price of the two units that was not previously applied to the Debtor's account with Guzzler. RIGHT OF SETOFF AS TO PROCEEDS OF THIRD UNIT In addition to section 553 of the Bankruptcy Code, provisions dealing with the automatic stay govern the exercise of the right of setoff. In relevant part, the Code states that "Except as provided in subsection (b) . . . a petition filed under section 301, 302 or 303 of this title . . . operates as a stay, applicable to all entities, of — . . . (7) the set off of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor. . . ." 11 U.S.C. § 362(a)(7) (2000). The stay also applies to any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate. 11 U.S.C. § 362(a)(3) (2000). A majority of jurisdictions addressing the issue have found that a setoff has occurred when three steps have been taken. These include "(i) a decision to effectuate a setoff, (ii) some action accomplishing the setoff, and (iii) a recording of the setoff." Strumpf, 516 U.S. at 19, 116 S.Ct. 286 (citing Baker v. Nat'l City Bank of Cleveland, 511 F.2d 1016, 1018 (6th Cir.1975); Normand Josef Enters., Inc. v. Connecticut Nat'l Bank, 230 Conn. 486, 504-505, 646 A.2d 1289, 1299 (1994)). Even if setoff is authorized under the Code provisions, the Bankruptcy Court has discretion to deny setoff when principles of equity so dictate. In re Stienes, 285 B.R. 360, 363 (Bankr.D.N.J.2002) (stating that setoff may be denied if the creditor acted inequitably where setoff would result in either a preference or priority over other unsecured creditors)(quoting In re Lykes Bros., S.S. Co., 217 B.R. 304, 313 (Bankr.M.D.Fla.1997)); In re Ace Sports Management, L.L.C., 271 B.R. at 143 (citations omitted). Guzzler argues that it has the right of setoff in this action even if it is liable for damages of $58,000.00 for the tort of conversion because of an Arkansas statute permitting setoff under these circumstances. Guzzler contends that the Debtor was indebted to Guzzler for that amount; therefore, the Trustee should receive nothing upon his complaint. However, Guzzler's argument that it should be entitled to a setoff for the exact amount of the Trustee's damages for conversion must fail for several reasons. The statute upon which Guzzler relies states "a setoff may be pleaded in any action for the recovery of money and may be a cause of action arising either upon contract or tort." Ark.Code Ann. § 16-63-206(a) (Michie 1987) (emphasis added). The Court views this provision as a procedural rule allowing for the pleading of setoff in certain actions for the recovery of money. The provision does not provide defendants with a substantive right to set off their claims against damages awarded against them because the right of setoff, once pleaded, would remain an issue for the court to decide on the merits. Moreover, under Arkansas law, setoff is not permitted against a judgment for damages for conversion. Ouachita Valley Refining Co. v. Webster, 178 Ark. 845, 12 S.W.2d 779, 780 (1929); Henderson Co. v. Webster, 178 Ark. 553, 11 S.W.2d 463, 465 (1928). Referring to a precursor *766 of the statute upon which Guzzler relies, the Arkansas Supreme Court explained: But we held that the statute "does not authorize one who has sold goods to a person to go to the place of business of the buyer and retake the property which has been delivered, and then, when sued for the value of the property, so retaken, set off debts due to an action of this kind." Ouachita Valley, 178 Ark. 845, 12 S.W.2d at 780 (quoting Henderson, 178 Ark. 553, 11 S.W.2d at 465). Second, the debts in question are not mutual in the sense that they are owed in the same capacity. Serving as broker for the transaction between the Debtor and Ace, Guzzler owed the Debtor an obligation to return property Guzzler was holding in trust as an agent. By contrast, the debt owed by the Debtor to Guzzler was a simple account due and payable. See, e.g., In re Drexel Burnham Lambert Group, Inc., 113 B.R. 830, 847-48 (Bankr.S.D.N.Y.1990) (stating that if creditor's debt arose from fiduciary duty or was in the nature of a trust, creditor could not setoff his claim against a debtor's obligation to creditor because of lack of mutuality). Cf. Adams v. Resolution Trust Corp., 927 F.2d 348, 354 n. 14 (8th Cir.1991) (stating that purchasers' subordinated debentures did not exist in the same right as promissory notes and could not be set off because of lack of mutuality). Third, the right of setoff should not be permitted in this case upon equitable grounds. With knowledge of the pending bankruptcy case, Guzzler retained the Debtor's property and accomplished the setoff after the Debtor was in bankruptcy. The Court can only conclude from the evidence that this was a willful violation of the automatic stay. See 11 U.S.C. § 362(3) & (7) (2000). Guzzler's actions also implicate section 549 of the Code, which permits a trustee to avoid unauthorized post petition transfers. By seizing the Debtor's property without legal right to do so, Guzzler has attempted to convert its claim into a fully secured claim to the prejudice of other unsecured creditors in the case. See Federal Deposit Ins. Corp. v. Liberty Nat'l Bank, 806 F.2d 961, 969 (10th Cir.1986) (recognizing that setoff in insolvency cases gives secured status to an otherwise unsecured creditor to the extent of the creditor's indebtedness to the insolvent); In re Bourne, 262 B.R. 745, 751 (Bankr.E.D.Tenn.2001) (stating that section 506 of the Code provides that a creditor has a secured claim to the extent of the offset). If Guzzler is allowed a setoff, all creditors would be encouraged to seize an insolvent's property without process or claim of lien and then claim right of setoff when sued by the trustee for conversion. Such a result is contrary to the general policy of bankruptcy law of equality of distribution. Therefore, Guzzler is not entitled to exercise any right of setoff against the Trustee's judgment for conversion. PUNITIVE DAMAGES The Trustee seeks an award of punitive damages and attorney's fees in addition to the award of actual damages. Arkansas law authorizes an award of punitive damages for conversion. Dees v. Allied Fidelity Ins. Co., 655 F.Supp. 10, 12 (E.D.Ark.1985); McKenzie, 295 Ark. at 331, 749 S.W.2d at 656; Williams v. O'Neal Ford, Inc., 282 Ark. 362, 365, 668 S.W.2d 545, 546 (1984); Herring, 267 Ark. at 206-207, 589 S.W.2d at 588. Punitive damages are not recoverable in a conversion action simply because the defendant intentionally exercised control or dominion over the plaintiff's property. City Nat'l Bank of Fort Smith v. *767 Goodwin, 301 Ark. 182, 188, 783 S.W.2d 335, 338 (1990). The act of conversion will support an award for punitive damages only if the plaintiff can show that the defendant intentionally exercised control or dominion over the plaintiff's property for the purpose of violating his right to the property or for the purpose of causing damages. City Nat'l Bank, 301 Ark. at 188, 783 S.W.2d at 338(citing Walt Bennett Ford, Inc. v. Keck, 298 Ark. 424, 768 S.W.2d 28 (1989); McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988); Ford Motor Credit v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979)). Punitive damages penalize conduct that is malicious or done with deliberate intent to injure. Brown v. Blake, No. CA 03-828, ___ Ark.App. ___, ___, ___ S.W.2d ___, ___, 2004 WL 897060, at *3 (2004)(citing Routh Wrecker Serv., Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998)). Malice is defined not as hatred, but as an intent or disposition to do a wrongful act greatly injurious to another. Brown, ___ Ark.App. at ___, ___ S.W.2d at ___, 2004 WL 897060, at *4. The relationship of the parties and the extent and duration of dominion are elements to consider in awarding punitive damages for conversion. Walt Bennett Ford, Inc. v. Keck, 298 Ark. 424, 429, 768 S.W.2d 28, 31 (1989). Guzzler argues that punitive damages are not allowable because proceedings in bankruptcy are equitable in nature. See Pepper v. Litton, 308 U.S. 295, 303-304, 60 S.Ct. 238, 84 L.Ed. 281 (1939) (holding that "for many purposes" bankruptcy courts are courts of equity). However, the bankruptcy court also exercises jurisdiction over some matters that are in the nature of legal rather than equitable proceedings. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 43, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) (stating that "In England, long prior to the enactment of our first Judiciary Act, common law actions of trover . . . were resorted to for the recovery of preferential payments by bankrupts"). Here, the trustee has properly proceeded against the defendant under a theory of conversion, formerly trover, which is a legal, not equitable, cause of action that is cognizable in state circuit courts. Buck, 80 Ark.App. at 381, 96 S.W.3d at 754. Under the facts presented, the Trustee is entitled to punitive damages. Guzzler acted with complete indifference to the Debtor's ownership rights when it seized the Debtor's $58,000.00 and applied it to past due accounts. At the time of the seizure, Guzzler held no lien nor had judicial process issued. Moreover, Guzzler was aware of the Debtor's bankruptcy filing and knew or should have known that the automatic stay prevented Guzzler from enforcing its right of setoff. Under these circumstances, where Guzzler had no valid right to the funds under either state or federal law, the Court infers that Guzzler converted the Debtor's property for the purpose of violating the Debtor's property rights. More than two years later Guzzler still retains the Debtor's property without any legal basis to do so. These actions were also taken in violation of Guzzler's duties as a fiduciary while acting in a position of trust as broker for the Debtor. The extent and duration of control over the Debtor's property that were exercised by Guzzler and Guzzler's fiduciary relationship with the Debtor dictate that punitive damages must be assessed.[3] *768 Punitive damages should be awarded pursuant to some rational basis. The sum awarded should be sufficient to deter future misconduct. First Nat'l Bank of Brinkley v. Frey, 282 Ark. 339, 343, 668 S.W.2d 533, 536 (1984) (opining that penalty of punitive damages must be in an amount sufficient to deter defendant from similar conduct) (citing Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972); Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961)). Guzzler was entitled to a fee of $4500.00 as compensation for its services under the agreement with the Debtor. Therefore, the Court fixes punitive damages at three times the commission charged by Guzzler, a sum equal to $13,500.00. The Trustee is also entitled to an award of pre-judgment interest on the sum of $58,000.00 from the date of conversion, which is the date when the setoff was accomplished, October 5, 2001, until the date of the entry of this judgment. See Fitzgerald v. Investors Preferred Life Ins. Co., 258 Ark. 966, 968, 530 S.W.2d 195, 197 (1975) (stating that interest on a judgment award for a willful conversion runs from the date of conversion)(citing Bradley Lumber Co. v. Hamilton, 117 Ark. 127, 173 S.W. 848 (1915)). ATTORNEY'S FEES The Trustee seeks an award of attorney's fees for bringing this action. Attorney's fees are not authorized by state law to the prevailing party in an action for conversion. McQuillan, 331 Ark. at 250, 961 S.W.2d at 734 (distinguishing between non-compensable legal expenses in prosecuting a conversion action and compensable legal expenses incurred to recover possession of converted property) (citing Fulks v. Fulks, 95 Ohio App. 515, 121 N.E.2d 180 (1953); Cincinnati Ins. Co. v. Diebold, Inc., 64 Ohio App.3d 273, 581 N.E.2d 566 (1989)). Notwithstanding that the Trustee did not sue under a breach of contract theory, the Court has held under these facts that the Trustee is entitled to recover $20,000.00 because of Guzzler's breach of contract. The issue of whether attorney's fees would be allowed in this context was not addressed by the parties. Therefore, within 20 days of the entry of this judgment, the Trustee may petition the Court for attorney's fees related to the award of $20,000.00 for breach of contract. SUMMARY For the reasons stated herein, the Trustee is entitled to judgment against Guzzler and Federal Signal, jointly and severally, for the sum of $58,000.00 plus interest at the legal rate from October 5, 2001, until the date of the entry of the judgment; judgment for the sum of $20,000.00 plus interest at the legal rate from July 1, 2000, when payment was due to the Debtor, until the date of the entry of the judgment; judgment for punitive damages of $13,500.00 and costs of this action. The judgment shall bear interest at the legal rate from the date of entry of the judgment until satisfied. IT IS SO ORDERED. NOTES [1] Federal Signal is the parent company of Guzzler, and Federal Signal Leasing operates some financial and bookkeeping functions for Guzzler, the exact nature of which is unclear. [2] The Court does not find credible Stafford's testimony that the agreed price was $65,000.00. The fact that Stafford testified that it was a business practice to overstate the consideration in the bill of sale in order to conceal the true price is reason enough to find his testimony not worthy of belief. The Court credits Pascale's testimony that the agreed consideration was $75,000.00. [3] Under the Bankruptcy Code, even if Guzzler had a valid right of setoff with regard to the $58,000.00, Guzzler would not be permitted to exercise that right without first applying for relief from stay. In re Stienes, 285 B.R. at 362. However, the Court acknowledges that even though Guzzler willfully violated the automatic stay, the Debtor is not entitled to punitive damages under section 362(h) of the Bankruptcy Code because the Debtor is a corporation rather than an individual.

246 B.R. 341 (2000) In re Donald Dean SEARS and Daphne Alice Sears, Debtors. Jerry Cepelak, Jr., Mark Cepelak, Jerry F. Cepelak and Shirley J. Cepelak, Appellees and Cross-Appellants, v. Donald Dean Sears and Daphne Alice Sears, Appellants and Cross-Appellees. BAP Nos. 99-6073, 99-6074. United States Bankruptcy Appellate Panel of the Eighth Circuit. Submitted January 27, 2000. Decided March 28, 2000. *342 *343 David A. Morse, Des Moines, IA, for appellant. Jimmy Ray Sween, Eldora, IA, for appellee. Before KOGER, Chief Judge, DREHER and KISHEL[1], Bankruptcy Judges. *344 KISHEL, Bankruptcy Judge. The Debtors, Daphne and Donald Sears, appeal the judgment of the bankruptcy court[2] that denied them a discharge under Chapter 7, for knowingly and fraudulently making a false oath in connection with their case. Creditors Jerry F., Shirley, and Mark Cepelak and Jerry Cepelak, Jr. cross-appeal from a companion judgment that determined that the Debtors' debt to them was not the result of a willful and malicious injury to the Cepelaks or their property, and hence was not excepted from discharge in bankruptcy. For the reasons set forth below, we affirm the judgment of denial of discharge, and dismiss the cross-appeal as moot. I. BACKGROUND The Cepelaks and the Debtors are neighbors in Union, Iowa. Over a term of years in the 1970s, the Debtors acquired various parcels of real estate in the vicinity of the Cepelaks' residence. The Debtors carried on a junk, salvage, and repair business on the properties. In connection with it, they acquired large quantities of used heavy and light equipment, motor vehicles, metal tanks, and the like, and stored them on-site. The Cepelaks began objecting to the Debtors about the condition of their property in the late 1970s. In 1996, they sued the Debtors in the Iowa state courts, claiming that the Debtors were maintaining a nuisance. After a jury trial, the state court entered judgment in the Cepelaks' favor against the Debtors for a total of $27,000.00 in damages. After the Cepelaks initiated garnishment and levy proceedings, the Debtors filed a voluntary petition for bankruptcy relief under Chapter 7. They filed their schedules and statements on March 13, 1998. The Cepelaks timely filed a two-count complaint in adversary proceedings against the Debtors, seeking alternate relief: a judgment under 11 U.S.C. § 727(a)(4), denying the Debtors a general discharge in bankruptcy, or a judgment under 11 U.S.C. § 523(a)(6), excepting the Debtors' debt to them from discharge. At trial, the Debtors moved for judgment in their favor after the Cepelaks had rested. The bankruptcy court denied the motion, and directed the Debtors to present evidence. After the close of evidence and argument, the bankruptcy court rendered its decision on the record. It denied the request for a determination of nondischargeability, under alternate approaches. First, it noted that the state-court jury had found that the Debtors' conduct had not been "directed specifically at" the Cepelaks. On that basis, it held that the Cepelaks were collaterally estopped from maintaining that the injury to them or their property had been "malicious" within the meaning of § 523(a)(6). It then concluded that the Cepelaks' case failed even if collateral estoppel did not lie—because the evidence could not independently support a finding of malice, that the Debtors "intended any sort of direct injury to the Cepelaks." Holding that the Cepelaks had "not met their burden of proof that their particular debt should be excepted from discharge," the bankruptcy court granted judgment to the Debtors on that count. On the Cepelaks' objection to general discharge, the bankruptcy court found that the Debtors had failed to include entries on their bankruptcy statements and schedules for three "rather substantial items" of personalty that had been present on their real estate around the time of their bankruptcy filing. These items were a Drott yellow caterpillar tractor with front-end loader (termed "the Drott yellow cat" by counsel and the bankruptcy court),[3] a Case backhoe with front-end loader, and a Toro front-deck grass mower. The bankruptcy *345 court held that the disclosure of certain information on these items was material to the administration of the bankruptcy estate: whether the Debtors had held an ownership interest in them, whether they had held possession of them for another person, or whether they had transferred them to another person pre-petition. It held that the failure to disclose any such information made the Debtors' statements and schedules "false statements, because they are not full statements." It then found that Debtor Donald Sears "was doing well" health-wise when he reviewed the schedules before signing them, notwithstanding severe medical problems in the recent past; that in preparing the schedules the Debtors had discussed them with each other and with their daughter; and that they had consulted an auctioneer for valuations on various items. "[F]ind[ing] it hard to believe" that the Debtors could inadvertently fail to note the three items in question, given the detail with which they had scheduled many smaller items of personality, the bankruptcy court held that the Cepelaks had met their burden of proof on the elements of § 727(a)(4). It thus denied the Debtors a discharge under Chapter 7. The Debtors appeal from the judgment of denial of discharge, on two main theories: the bankruptcy court erred in denying their motion for judgment on partial findings,[4] and it erred in holding for the Cepelaks on the merits. The Cepelaks cross-appeal from the judgment of determination of dischargeability. They argue that the bankruptcy court erred in its application of collateral estoppel and in its alternate holding that the evidence could not support a finding of malice under § 523(a)(6). II. STANDARD OF REVIEW A. Denial of Motion for Judgment on Partial Findings. In a trial to the court, a motion for judgment on partial findings can serve the same function as the motion for judgment as a matter of law that is made in a jury trial: to terminate a factually-unsupported claim or defense after its proponent has put in all of its evidence. On appeal, however, the standard of review is different. The denial of a motion for judgment as a matter of law is reviewed de novo. Stoebner v. Lingenfelter, 115 F.3d 576, 578 (8th Cir.1997). As a general proposition, the review of the disposition of a motion under Rule 52(c) goes to the findings made on the nonmoving party's evidence, and whether they are clearly erroneous. London v. Directors of the DeWitt Public Schools, 194 F.3d 873, 875 (8th Cir.1999); Geddes v. Northwest Mo. State Univ., 49 F.3d at 429 n. 7. See also Biggs v. Logicon, Inc., 663 F.2d 52, 53 (8th Cir.1981) (decided under former FED. R. Civ. P. 41(b)[5]). *346 The standard of review, however, is different when the appeal is from the denial of a motion for judgment on partial findings. Such a holding is not based on findings of fact as such. Under former Rule 41(b), a defendant that moved for involuntary dismissal after the close of the plaintiff's case, but then offered evidence in its own behalf, was deemed to waive its right to press for involuntary dismissal on the ground that the plaintiff's prima facie case was insufficient. Duval v. Midwest Auto City, Inc., 578 F.2d 721, 724 (8th Cir.1978). "In such situations the sufficiency of the evidence is tested on appeal by viewing the entire record, reversal being warranted only if the [trial] court's findings are clearly erroneous." Id. (emphasis added). See also Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1503 (11th Cir.1993); duPont v. Southern Nat'l Bank of Houston, 771 F.2d 874, 881 (5th Cir.1985); Sanders v. Gen. Serv. Admin., 707 F.2d 969, 971 (7th Cir.1983); Wealden Corp. v. Schwey, 482 F.2d 550, 551 (5th Cir.1973). Rule 52(c)'s status as successor to Rule 41(b) makes this principle applicable to the denial of a motion for judgment on partial findings.[6]See n. 5, supra. B. Determinations on the Merits. In an appeal from a decision on the merits, the bankruptcy court's findings of fact are reviewed for clear error. FED. R. BANKR. P. 8013[7]; In re Miller, 16 F.3d 240, 242-243 (8th Cir.1994); In re Muncrief, 900 F.2d 1220, 1224 (8th Cir. 1990); In re Usery, 242 B.R. 450, 456 (8th Cir. BAP 1999); In re Kula, 213 B.R. 729, 735 (8th Cir. BAP 1997). A finding of fact 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." Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)); In re Waugh, 95 F.3d 706, 711 (8th Cir. 1996); In re Lockwood Corp., 223 B.R. 170, 174 (8th Cir. BAP 1998). This standard requires significant deference to the bankruptcy court as finder of fact: "If the [trial] court's account of its evidence is plausible in light of the record viewed in its entirety, the [appellate tribunal] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson v. City of Bessemer, 470 U.S. at 573-574, 105 S.Ct. at 1511. See also In re Consumers Realty & Dev. Co., Inc., 238 B.R. 418, 422 (8th Cir. BAP 1999). "Where there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer, 470 U.S. at 574, 105 S.Ct. at 1511. The bankruptcy court's conclusions of law are subject to de novo review on appeal. In re Cochrane, 124 F.3d 978, 982 (8th Cir. 1997). III. DISCUSSION A. Denial of Discharge Under § 727(a)(4)(A). 1. Generally. The Cepelaks' objection to discharge was premised on 11 U.S.C. § 727(a)(4)(A). That statute provides: *347 (a) The court shall grant the debtor a discharge, unless — . . . (4) The debtor knowingly and fraudulently, in or in connection with the case — (A) made a false oath or account . . . The Debtors submitted their bankruptcy statements and schedules on the prescribed forms, which required them to verify the averments in them under penalty of perjury. By statute, that has the force and effect of an oath. 28 U.S.C. § 1746. See also Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980) (subscription to false statement made under 28 U.S.C. § 1746 equates to false oath). Section 727(a)(4)(A) provides a harsh penalty for the debtor who deliberately secretes information from the court, the trustee, and other parties in interest to his case. In doing so, it bolsters the basic functions of estate administration and adjudication in bankruptcy. Mertz v. Rott, 955 F.2d 596, 598 (8th Cir.1992); In re Baskowitz, 194 B.R. 839, 843 (Bankr. E.D.Mo.1996). See also Payne v. Wood, 775 F.2d 202, 206 (7th Cir.1985) (requirement that debtor fully schedule all assets allows trustee to identify all claims of ownership and title and to challenge suspect ones). "The petition, including schedules and statements, must be accurate and reliable, without the necessity of digging out and conducting independent examinations to get the facts." Mertz v. Rott, 955 F.2d at 598 (interior quotation marks omitted). To merit denial of discharge, a debtor's misrepresentation or omission must be material. In re Olson, 916 F.2d 481, 484 (8th Cir.1990). The threshold to materiality is fairly low: "The subject matter of a false oath is `material,' and thus sufficient to bar discharge, if it bears a relationship to the bankrupt's business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property." In re Chalik, 748 F.2d 616, 618 (11th Cir. 1984) (per curiam) (quoted and relied on in In re Olson, 916 F.2d at 484). See also Mertz v. Rott, 955 F.2d at 598. The value of omitted assets is relevant to materiality, but materiality will not turn on value. In re Olson, 916 F.2d at 484. An omission of a relatively modest asset will merit denial of discharge, if done with knowledge and fraudulent intent. Mertz v. Rott, 955 F.2d at 598 (denying discharge for knowing and fraudulent omission of entitlement to state tax refund of $1,358.00). The question of a debtor's knowledge and intent under § 727(a)(4) is a matter of fact. In re Olson, 916 F.2d at 484. See also Williamson v. Fireman's Fund Ins. Co., 828 F.2d 249, 251-252 (4th Cir.1987); In re Devers, 759 F.2d 751, 754 (9th Cir.1985). On the other hand, the issue of materiality is best characterized as a mixed one of law and fact. The existence of a relationship between the subject matter of an omission or misrepresentation and the concerns of the bankruptcy process rests on connections in fact. Categorizing such relationships between substantial and insubstantial, however, requires the application of a legal standard, the drawing of a line by the court. Cf. In re Aboukhater, 165 B.R. 904, 911 (9th Cir. BAP 1994) (summarily holding that status of omitted property as property of the estate was issue of fact that had to be resolved in favor of objector to discharge on debtor's motion to dismiss under Rule 12(b)(6)). 2. Denial of Motion for Judgment on Partial Findings.[8] At trial, the Cepelaks rested after eliciting the testimony of two witnesses: Jerry Cepelak, Jr., and a deputy sheriff who had inspected the Debtors' real estate *348 during a levy of execution just before their bankruptcy filing. Arguing that this testimony was not sufficient to establish a prima facie case, the Debtors' counsel moved for a judgment on partial findings. The bankruptcy court denied the motion, but on a different ground. Counsel disagreed whether they had had an understanding that the Debtors would take the witness stand in their own case in chief without being called first as adverse witnesses in the Cepelaks'. The bankruptcy court noted the inevitability of an appeal, no matter the outcome at trial. Stating that a remand for additional evidence was "the last thing we need," it denied the motion and directed the Debtors' counsel to call their first witness. However accurate its underlying prediction, the bankruptcy court's rationale was not responsive to counsel's arguments. An appellate tribunal, however, may affirm on any ground that is supported by the record, regardless of the expressed basis for denial of the motion. Wycoff v. Menke, 773 F.2d 983, 986 (8th Cir.1985); Reeder v. Kansas City Bd. of Police Comm'rs, 733 F.2d 543, 548 (8th Cir.1984); In re McGowan, 226 B.R. 13, 18 (8th Cir. BAP 1998). We thus are not bound to reverse or remand, if an application of Rule 52(c) on its terms would have led to the same outcome. In making his motion, the Debtors' counsel unwittingly set up a Hobson's choice for himself and his clients.[9] Under the caselaw under former Rule 41(b), his election to proceed with evidence of his own results in a deemed waiver of any challenge to the sufficiency of the Cepelaks' prima facie case. Even if the deemed waiver principle did not survive the 1991 rules amendments, the bankruptcy court reached a correct outcome in denying the Debtors a judgment on partial findings. The issue was whether the Cepelaks had presented substantial evidence to support findings of fact on each of the elements of their objection to discharge. London v. Directors of the DeWitt Public Schools, 194 F.3d at 876; Geddes v. Northwest Mo. State Univ., 49 F.3d at 429 n. 7. If they had, the burden of production shifted over to the Debtors, Farouki v. Emirates Bank Int'l, Ltd., 14 F.3d 244, 249 (4th Cir.1994), and the bankruptcy court did not err in denying the motion. Ultimately, though it was a bit thin, the Cepelaks' case was enough to present to a finder of fact. The bankruptcy court received all exhibits—including the Debtors' statements and schedules—by consent of the parties. In sum, the deputy sheriff testified that on January 29, 1998 the Drott yellow cat and the Toro mower were on the Debtors' real estate, amidst the large mass of personality that unquestionably belonged to them. Jerry Cepelak, Jr. then testified in greater detail as to the several items in controversy. He stated that the Case backhoe had been on the Debtors' property "for quite awhile" before their bankruptcy filing; that, when operated, it had been operated by Debtor Donald Sears; and that it had a value of $10,000.00.[10] As to the Drott yellow cat, he testified that he had seen it consistently on the Debtors' real estate for several years before their bankruptcy filing; that the prior owner, Keith Hoy, had told him that he had sold it to Debtor Donald Sears; that in his observation the "persons *349 operating that particular piece of equipment" had been "[j]ust him"—Donald Sears—and that its value was $5,000.00. In this witness's opinion, the backhoe and the cat were the two most expensive pieces of equipment on-site. As to the Toro front-deck mower, he testified that it had "always been there" on the property, usually right in the middle of the lot, and that Donald Sears again had frequently used it there to mow the grass. This evidence of long-term presence and consistent pattern of use logically supports an inference of some kind of legal claim of right by the Debtors, whether that be ownership, lease, or possession in consideration for some other good or service. Such a finding, combined with the evidence of substantial value, made out a prima facie case on materiality. Disclosure of the Debtors' interest in the items, then, was required under law. The choice of the situs of the disclosure lay with the Debtors, and depended on the nature of the interest they maintained; if they held ownership, it would have been on Schedule B, and if they held possession by agreement, through bailment, or by sufferance, it would have come under Item 14 of their Statement of Financial Affairs.[11] The three items do not appear by any recognizable description on the Debtors' Schedule B; they checked a box for "None" on Item 14. The lack of any disclosure would make one or the other a false statement.[12] On the statutory element of knowledge, the evidence on the size, value, and use of the subject assets would support an inference that the Debtors knew they were on the property, and in their possession.[13] The detail with which the Debtors itemized other vehicles and equipment on their Schedule B, the proximity of Item 14 on the Statement of Financial Affairs to the signature line, and the clarity of Item 14's instruction would all support an inference that they knew that they had to disclose the items in controversy. The other statutory intent element is fraud — which in this context properly is equated with an intent to hide possession, ownership, or claim of right by simply not disclosing them on bankruptcy statements and schedules. As to this element, the Cepelaks' case in chief was not especially pointed, and their attorney's argument was less so. However, the other evidence as a whole, viewed against the clarity of the form instructions on the statements and schedules, could support an inference of such intent.[14]In re Calder, 907 F.2d 953, *350 955-956 (10th Cir.1990); Williamson v. Fireman's Fund Ins. Co., 828 F.2d at 252 (both noting that trial court may infer fraudulent intent under 727(a)(4)(A) from all facts and circumstances in case, given difficulty of relying only on debtor's testimony on state of mind). All of the cited evidence logically went to the various elements of the Cepelaks' objection to discharge, and enough of it went to each such element that findings could have been made in their favor. The Cepelaks having thus made out a prima facie case under § 727(a)(4)(A) through their own evidence, it was not error for the bankruptcy court to deny the Debtors' motion for judgment on partial findings. 3. Determination on the Merits. On the merits of the Cepelaks' objection to discharge, only one issue is presented on appeal: the adequacy of evidence to support the bankruptcy court's implicit findings[15] of knowledge and fraudulent intent on the part of the Debtors.[16] The making of an inference on a party's subjective state of mind under § 727(a)(4) is a fact-finding process. Williamson v. Fireman's Fund Ins. Co., 828 F.2d at 252. As a result, the inquiry on appeal is narrow: whether the result of the process was clearly erroneous. After a thorough review of the record, we do not harbor the "definite and firm conviction" that the bankruptcy court made a mistake in its findings on the Debtors' intent. Though there was no direct evidence that the Debtors intended to deceive any recipient or reader of their statements and schedules, there was a critical mass of circumstantial evidence to support an inference to that effect. The array includes circumstances that suggest that the Debtors had tried to hide their interest in the single most valuable piece of equipment, the Case backhoe, from the sheriff's levy made at the Cepelaks' instance. Shortly before his hospitalization, and in the face of the Cepelaks' post-judgment collection effort, Donald Sears moved the backhoe from the Debtors' front yard to the Ford garage in Union. He retrieved it after he was released from rehabilitation therapy. He did not offer a valid reason for the removal—maintenance, repair, or the like—and in fact had done much of the necessary maintenance on the backhoe ever since his purchase from Keith Hoy. There is also much circumstantial evidence to support the finding that the Debtors fully understood their duty to accurately complete their schedules. During the last weeks of Donald Sears's hospitalization, Daphne Sears carefully reviewed the contents of the Debtors' house, garage, and outbuildings with her daughter's assistance, after discussing the need to do so with her bankruptcy counsel. She used an appraiser to arrive at values. She submitted enough information to counsel to allow the preparation of detailed entries for personality on Schedule B. Though Donald Sears had no involvement in the preparation, he acknowledged that he "look[ed] at *351 the paper before he signed it," and that he "[knew his] property pretty good." Daphne Sears acknowledged that her husband was "`100 percent' his normal self" on the day he reviewed and signed the schedules, despite the gravity of his medical condition several months earlier. (Within a day or two of the signing, he retrieved the Case backhoe from the Ford garage.) Daphne Sears protested on direct examination that the Debtors had not fully itemized their personalty, "a lot of stuff," on Schedule B, and that that would have been "impossible." Nonetheless, the schedules did itemize 103 different classes of items, down to stated individual values of $15.00. The likely values of the Drott yellow cat and the Case backhoe each exceeded the very largest stated value of any such class of personalty, and exceeded the stated values of most such classes by multiples of 10 to 20. Both Debtors' testimony regarding the state of ownership of the three items was terse, summary and vague. Its content was often the result of leading by their counsel. The Debtors attested having bought the Case backhoe from Keith Hoy or his estate, and then to having conveyed ownership to their son Mark. The transfer was made on an indistinctly-described understanding that Mark had done enough work for them that he deserved to receive it. The proffered reason was Mark's need for it in a single personal endeavor—putting in a new water line for his home. At all relevant times, Mark Sears was employed as the manager of a concrete plant; Daphne Sears admitted that he had no need to possess or use a backhoe in his employment. The great preponderance of the evidence was that Mark rarely, if ever, used the backhoe after the purchase from Hoy, and that possession and use lay almost exclusively with his father. Jerry Cepelak, Jr. testified that he did not remember ever seeing the backhoe leave the Debtors' property, other than the removal to the Ford garage. In its findings, the bankruptcy court made much of a baffling pair of three-part exchanges among the Cepelaks' counsel, the Court, and Donald Sears during the latter's testimony regarding the backhoe.[17] It was not inappropriate that it did. Like testimony went in regarding the Drott yellow cat. This included the direct contradiction between Donald Sears's November, 1996 testimony regarding "my dozer" in a deposition in the state-court lawsuit, and the Debtors' current insistence that they had transferred the cat to their son early after their acquisition from Hoy. The same sort of inconsistency pervaded the Debtors' testimony on the Toro mower. This item was allegedly the property of a handicapped sibling who lived several miles away, and who "sometimes . . . like[d] to own things but he [couldn't] run them, and so he let[] other people use them . . ." The Debtors' proffered excuse for their failure to schedule the three items was relatively weak: Daphne Sears's statement that she had "just figured because it wasn't [their] stuff, [she] didn't need to list it." Topping this was the curious conclusion she drew, that she "didn't realize that [she] needed to list what other people owned" on Item 14 of the Statement of Financial Affairs. Finally, there is the fact that the Debtors never amended their statements and schedules, even after the omissions were drawn to their attention in the adversary proceeding. The facial content of much of this evidence did not go directly to the issue of intent to deceive in submitting bankruptcy schedules. Nonetheless, it did reflect on the Debtors' veracity generally. It was *352 for the bankruptcy court, as trier of fact, to conclude whether the Debtors' explanations as to ownership and possession were facile or forthright, and in turn how the credibility of the explanations bore on their protestations of inadvertence in omitting the three items. Ultimately, the bankruptcy court made its assignment of credibility, and weighed the evidence before it. Clearly, in the bankruptcy court's view, the body of circumstantial evidence outweighed the Debtors' summary protestations of mistake and inadvertence. The failure to amend reinforced the suggestion that the omissions were deliberate. Mertz v. Rott, 955 F.2d at 598-599. Given the relative weight of the two sides' evidence and the contradictions in the Debtors' proof, it was not clear error to largely reject the Debtors' testimony, to rely on the greater weight of the circumstantial evidence, and to draw an inference adverse to the Debtors on the elements of knowledge and fraudulent intent. In re Le Maire, 898 F.2d 1346 (8th Cir.1990) (en banc) ("even greater deference to the trier of fact is demanded" when findings turn on an assessment of credibility). To the extent that the Debtors' evidence did support a different version of the operative facts, the bankruptcy court's view is nonetheless plausible and supported by the evidence. As an appellate tribunal, we must uphold its choice between the two. In re Consumers Realty & Dev. Co., Inc., 238 B.R. at 425 (citing Anderson v. Bessemer City, 470 U.S. at 573-574, 105 S.Ct. at 1511-1512). 4. Conclusion, as to Objection to Discharge. The bankruptcy court's finding that the Debtors acted knowingly and fraudulently when giving a false oath for their property schedules and Statements of Financial Affairs was not clearly erroneous. B. Denial of Discharge Under § 523(a)(6). The Cepelaks cross-appeal from the judgment of the bankruptcy court that they had failed to prove that the Debtors had willfully and maliciously inflicted an injury on them or their property while they maintained the nuisance. Since the granting of an exception to discharge under § 523(a) is subsumed within a denial of general discharge under § 727(a), the cross-appeal is mooted by our disposition of the Debtors' appeal. In re Aboukhater, 165 B.R. at 912 (creditor's success on objection to discharge moots companion dischargeability proceeding); In re Maltais, 202 B.R. 807, 810 (Bankr.D.Mass.1996); In re DeBruin, 144 B.R. 90, 94 (Bankr. E.D.Wis.1992); In re Watson, 78 B.R. 267, 271 (Bankr.C.D.Cal.1987). IV. CONCLUSION The bankruptcy court did not err in ruling that the Cepelaks had met their burden in objecting to the grant of general discharge to the Debtors. The Cepelaks' cross-appeal is moot. Accordingly, the bankruptcy court's judgment is affirmed in all respects. NOTES [1] The Honorable Gregory F. Kishel, United States Bankruptcy Judge for the District of Minnesota, sitting by designation. [2] The Honorable Lee M. Jackwig, United States Bankruptcy Judge for the Southern District of Iowa. [3] This implement is of the sort colloquially called a "bulldozer." [4] Before the bankruptcy court, the Debtors' counsel identified his motion as one for a directed verdict. The nomenclature was wrong as a matter of both historical terminology and context. The federal rules no longer identify a procedure in the words counsel used; a 1991 amendment changed the term to "motion for judgment as a matter of law." See Advisory Committee Notes, Rule 50, 1991 Amendment, reprinted in 12A CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE: CIVIL, Appendices at 509-512 (West supp. 1999). In any event, the decision in a trial to the court is not rendered by a verdict. Where the court is the fact-finder, a motion to terminate the litigation for failure to prove up a prima facie case is currently made under FED. R. Civ. P. 52(c), and is termed a "motion for judgment on partial findings." Geddes v. Northwest Mo. State Univ., 49 F.3d 426, 429 n. 7 (8th Cir.1995); Williams v. Mueller, 13 F.3d 1214, 1215 (8th Cir.1994); Madison v. Frank, 966 F.2d 344, 345 n. 2 (8th Cir.1992). See also Advisory Committee Notes, Rule 52, 1991 Amendment, reprinted in WRIGHT, ET AL., Appendices at 521-522. FED. R. Civ. P. 52 is incorporated by FED. R. BANKR. P. 7052, which governed the Cepelaks' adversary proceeding before the bankruptcy court. [5] With the 1991 amendments to the Federal Rules of Civil Procedure, Rule 52(c)'s procedure for judgment on partial findings replaced Rule 41(b)'s one for involuntary dismissal. Williams v. Mueller, 13 F.3d at 1215. The published decisions apply the same standard of review to the procedures under both rules. [6] As yet, there do not appear to be any published decisions that extend the principle this way. In unpublished decisions, two Circuits have held that the grant or denial of a motion under Rule 52(c) after the close of a plaintiff's case is discretionary with the trial court, given the rule's use of the permissive "may." In re Tincher, 181 F.3d 104 (table), 1999 WL 266261 *3 (6th Cir.1999); In re Sovereign Partners, 110 F.3d 70 (table), 1997 WL 160279 *3-4 (9th Cir.1997). [7] In pertinent part, this rule provides: Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses. [8] Because the outcome on the Debtors' appeal moots the dischargeability proceeding, see p. 352 infra, we have treated their motion for judgment on partial findings only as it pertained to the Cepelaks' objection to discharge. [9] This choice, of course, was whether to go ahead with evidence, were the motion denied. The concomitant risk was that his own evidence might fill in any holes in the Cepelaks' case, had the bankruptcy court really erred in denying the motion. See Sanders v. Gen. Serv. Admin., 707 F.2d at 971; Wealden Corp. v. Schwey, 482 F.2d at 551-552. [10] The Debtors' counsel objected to this testimony; the ground was that Jerry Cepelak, Jr., was not competent as a witness on valuation. The bankruptcy court overruled the objection, holding that his occupation as a construction contractor gave him adequate familiarity with the values of heavy equipment. On appeal, the Debtors do not take exception to this ruling. [11] The instructions for this item read: 14. Property held for another person. List all property owned by another person that the debtor holds or controls. [12] Indeed, the computer printout of the Statement of Financial Affairs for the Debtors' very own filing put the instruction and the blank for Item 14 on the same page as their signature lines. [13] The observation has to be made: how can a person reasonably deny knowing that a bulldozer and a backhoe are in the front yard? The question is not as facetious or as rhetorical as it first seems. The whole point of the Debtors' contention with the denial of their motion under Rule 52(c) is that there was no evidence in the record to support findings on the subjective elements of § 727(a)(4)(A). When counsel argued the motion, neither of the Debtors had yet testified to any of the predicate facts, including their awareness of the assets and their understanding of their interest in them. As to those points, the Cepelaks' prima facie case had to be made by an inference. Common sense and ordinary human experience made that inference an easy one, but it still had to be propelled on some basic evidence. [14] Some of the caselaw under former Rule 41(b) opined that the plaintiff need not be given the benefit of favorable inferences on a motion for dismissal after the close of its case. E.g., Williams v. Mueller, 13 F.3d at 1215-1216; Madison v. Frank, 966 F.2d at 345. The application of this principle perforce is relaxed where an element almost invariably is proven by inference drawn from circumstantial evidence. Such is the case with knowledge, intent, and other states of mind. In re Calder, 907 F.2d at 955-956; Williamson v. Fireman's Fund Ins. Co., 828 F.2d at 252 (both noting that in proceeding under 727(a)(4)(A) "a debtor is unlikely to testify directly that his intent was fraudulent . . ."). Cf. In re Van Horne, 823 F.2d 1285, 1287 (8th Cir.1987) (applying 11 U.S.C. § 523(a)(2)(A) and reaching same conclusion re: mode of proof). [15] The bankruptcy court was somewhat brief in its recitation of facts, but clear in its statement that the Cepelaks had fully met their burden of proof. Even where a trial court does not "enunciate factual findings as such," it will be reviewed on appeal as if it had, as long as its decision is "based on explicit determinations." In re Clarkson, 767 F.2d 417, 419 (8th Cir.1985). [16] The other elements of § 727(a)(4)(A) either were uncontested or were established by the Debtors' admissions in testimony. Debtor Daphne Sears conceded on direct examination that, at the very least, the three pieces of equipment "should have been listed" under Item 14 of the Statement of Financial Affairs. Donald Sears was not as candid, but he did acknowledge the applicability of "that other thing," i.e., Item 14, to the subject matter of the three pieces of equipment. These concessions satisfied the Cepelaks' burden of proof on materiality and falsity; the Debtors' verification established the relevant portions of the statements and schedules as a false oath. [17] When the Cepelaks' counsel twice inquired regarding the circumstances of the Debtors' original acquisition, Donald Sears balked at answering, and asked the bankruptcy court whether he had to. When directed to respond, he answered "I don't know," both times.

972 F.2d 346 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.Vincent ASTOR; Dennis Dangel; Richard Herbruck; LindaHickle; F.J. Madera; Joe Manzella; RobertSteinberg; Lynn Steiner; Jack Walsh,PlaintiffsCounter-Defendants--Appellants-Cross Appellees,v.INTERNATIONAL BUSINESS MACHINE CORPORATION, DefendantCounter-Claimant--Appellee-Cross Appellant. Nos. 92-3662, 92-3687. United States Court of Appeals, Sixth Circuit. Aug. 4, 1992. Before RALPH B. GUY, Jr. and JAMES L. RYAN, Circuit Judges, and CONTIE, Senior Circuit Judge. ORDER 1 The parties appeal from the order of the district court granting judgment on the pleadings on plaintiffs' claims for breach of a fiduciary duty under the Employee Retirement Income Security Act of 1974. On June 11, 1992, plaintiffs filed a motion for reconsideration of that order. The notices of appeal were filed prior to a ruling on the motion for reconsideration. In response to a show cause order issued by the court, plaintiffs note that the district court denied their motion for reconsideration on July 8, 1992, and assert that requiring the filing of new notices of appeal would constitute a waste of time and effort. 2 However, a notice of appeal filed before the disposition of a time tolling motion "shall have no effect." Rule 4(a)(4), Fed.R.App.P.; see Moody v. Pepsi-Cola Metropolitan Bottling Co., Inc., 915 F.2d 201, 206 (6th Cir.1990). The parties are required to file new notices of appeal within the prescribed time following the July 8, 1992, denial of the motion for reconsideration. Id.; see also Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989). 3 It therefore is ORDERED that these appeals are sua sponte dismissed for lack of jurisdiction.

946 F.2d 887 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.UNITED STATES of America, Plaintiff-Appellee,v.Maurice GOODWIN, a/k/a Moe, Defendant-Appellant. No. 91-5536. United States Court of Appeals, Fourth Circuit. Submitted Sept. 30, 1991.Decided Oct. 18, 1991. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Frederick P. Stamp, Jr., District Judge. (CR-90-133) Michael John Aloi, Manchin, Aloi & Carrick, Fairmont, W.Va., for appellant. William A. Kolibash, United States Attorney, Sam G. Nazzaro, Assistant United States Attorney, Wheeling, W.Va., for appellee. N.D.W.Va. AFFIRMED. Before K.K. HALL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge. OPINION PER CURIAM: 1 Maurice Goodwin pled guilty to conspiracy to distribute crack cocaine (21 U.S.C. § 846 (1988). He appeals the sentence imposed on the ground that conduct of his co-defendants was improperly considered in determining his offense level. We affirm. 2 Goodwin was one of a number of people in Wheeling, West Virginia, who sold crack which was supplied primarily by Will Powell. After Goodwin pled guilty, all the others charged with Goodwin, including Powell, also entered guilty pleas. Goodwin's plea agreement contained a stipulation that the government could readily prove that he distributed two to three grams of crack, and that this amount would yield a base offense level of twenty. Powell, who supplied the cocaine Goodwin sold, stipulated that the government could readily prove that he distributed five to twenty grams of crack. In calculating Goodwin's base offense level, the probation officer considered as relevant conduct the amounts distributed by other members of the conspiracy, most importantly Powell, and recommended a base offense level of twenty-six. 3 Goodwin objected at sentencing to the consideration of Powell's conduct and to receiving a higher base offense level than twenty, arguing that information obtained from other conspirators was obtained only because he first pled guilty. The district court correctly found that it was not bound by the parties's stipulation as to amount, see U.S.S.G. § 6B1.4(d), and that in computing the base offense level it was required to take into account the actions of co-conspirators which were within the scope of Goodwin's agreement or reasonably foreseeable to him. § 1B1.3(a)(1) and comment. (n. 1). The record on appeal discloses evidence from potential witnesses who were not charged that Powell distributed at least ten grams of crack in Wheeling, and that he knew Goodwin well enough to store his guns in Goodwin's apartment. On these facts, the amount stipulated in Powell's plea agreement was correctly considered relevant conduct in computing Goodwin's offense level. 4 The judgment of the district court is accordingly affirmed. 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. 5 AFFIRMED.

FILED NOT FOR PUBLICATION OCT 25 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FREDY AMILCAR GONZALEZ- No. 12-71151 ARROYO, a.k.a. Freddy Amilcar Gonzalez-Arroyo, Agency No. A029-180-823 Petitioner, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 15, 2013** Before: FISHER, GOULD, and BYBEE, Circuit Judges. Fredy Amilcar Gonzalez-Arroyo, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction under * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 8 U.S.C. § 1252. We review de novo questions of law, and review for substantial evidence the agency’s factual findings. Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir. 2008). We deny the petition for review. The agency correctly determined that Gonzalez-Arroyo’s conviction for violating California Penal Code § 273.5(a) is categorically an aggravated felony crime of violence under 8 U.S.C. § 1101(a)(43)(F), where he was sentenced to a term of imprisonment of at least one year. See Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083 (9th Cir. 2010); see also United States v. Gonzalez-Tamariz, 310 F.3d 1168, 1170-71 (9th Cir. 2002) (an offense classified as a misdemeanor under state law may be considered an aggravated felony under 8 U.S.C. § 1101(a)(43)); Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1054 (9th Cir. 2005) (aggravated felony definition applies to convictions entered “before, on, or after” the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996). Gonzalez-Arroyo is therefore statutorily ineligible for asylum and relief under the Nicaraguan Adjustment and Central American Relief Act. See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i); 8 C.F.R. § 1240.61(b). Accordingly, we need not reach Gonzalez-Arroyo’s remaining contentions concerning his eligibility for these forms of relief. 2 12-71151  Substantial evidence supports the agency’s determination that Gonzalez- Arroyo failed to establish the requisite nexus between any harm he fears and a protected ground for the purpose of withholding of removal. See 8 U.S.C. § 1231(b)(3); Santos-Lemus, 542 F.3d at 747 (resistance to gang recruitment efforts does not, without more, constitute a political opinion); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”). Finally, Gonzalez-Arroyo failed to raise, and therefore waived, any challenge to the agency’s determination that he did not challenge on appeal the denial of his claim for Convention Against Torture relief. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (petitioner waives an issue by failing to raise it in the opening brief). PETITION FOR REVIEW DENIED. 3 12-71151 

41 F.3d 667 U.S.v.Parker* NO. 92-6980United States Court of Appeals,Eleventh Circuit. Nov 17, 1994 Appeal From: S.D.Ala., No. 92-00027-CR-CB 1 AFFIRMED.

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted March 12, 2014* Decided March 12, 2014 Before WILLIAM J. BAUER, Circuit Judge DANIEL A. MANION, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge No. 13-3013 JACK C. SWENSON, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 11 C 4295 SALIENT CORPORATION, et al., Defendants-Appellees. Ronald A. Guzmán, Judge. ORDER Jack Swenson sued his former employer, Salient Corporation, and several of its executives, contending that by firing him they committed age discrimination, see Age Discrimination in Employment Act, 29 U.S.C. § 623(a), and violated state law (breach of contract and unlawful termination). The district court granted summary judgment to * After examining the parties’ briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P. 34(a)(2)(C). No. 13-3013 Page 2 the defendants. Because no evidence links age bias to Swenson’s discharge, and the record establishes that he was an at-will employee under state law, we affirm. Salient, a consulting company, hired Swenson as Senior Vice-President of Healthcare in 2010 but terminated his employment less than two months later. His employment began after he discussed the position with Guy Amisano, the company’s chief executive, and Bill Carpenter, its chief operating officer. That discussion led to a written offer from Christine Cavanaugh, the corporate controller, dated June 16, 2010. The offer specified that Salient would require him to work on a business plan for the company’s new healthcare initiative during his first 60 days on the job. The offer also stated that it “does not constitute an employee contract (i.e., either one of us can terminate employment at will, with or without cause). Further, this offer of employment supersedes any prior or subsequent oral representation that might be made.” Swenson submitted a counteroffer, asking Carpenter, among other things, to remove the at-will language. Salient issued a new offer on June 17 that accepted some of Swenson’s requests but kept, verbatim, the paragraph on at-will employment. Swenson accepted that offer with his signature. When he began working, Swenson acknowledged in writing that he received the company’s handbook, which sets forth Salient’s at-will employment policy. The second paragraph of his acknowledgment declares: “I understand that no statement contained in the Employment Handbook creates any guarantee of continued employment or creates any obligation, contractual or otherwise, on the part of Salient Corporation. I have entered into my employment relationship with Salient Corporation voluntarily, and I acknowledge that there is no specified length of employment.” Swenson’s first day with Salient was June 28, giving him 60 days from then (until August 27) to produce a business plan. The day before Swenson was scheduled to leave for a pre-approved cruise vacation on August 5, Carpenter asked Swenson for a draft of the plan, as they had discussed previously. Carpenter did not hear from Swenson until he returned from vacation on August 13, and, again, asked for a draft of the plan. When Carpenter had not received a draft by the following Monday, with Amisano’s approval he fired Swenson for insubordination and lack of performance. In this suit, Swenson maintains two principal claims. His first claim is that Salient fired him because of his age. According to his deposition testimony, on his first day of work, Carpenter demanded that Swenson tell him his age (which was 56). When Swenson refused, Carpenter became increasingly agitated. Swenson also testified that No. 13-3013 Page 3 on his third day of work Amisano, too, demanded his age several times and became angry when Swenson again did not oblige. The company, he says, also required that he participate in activities that prevented him from completing the business plan. Swenson views the age inquiries and extra activities as evidence of age bias. His second claim challenges his discharge under state law. He argues that his June 17 offer plus other communications establish an employment contract that Salient breached by firing him. The district court granted summary judgment for the defendants. It assumed that the executives had asked Swenson about his age but concluded that neither those remarks, nor his workload, implied that he was fired because of his age. The court also concluded that, based on the June 17 letter and company’s employee handbook, he was an at-will employee; therefore Swenson could not prevail under state law. (Earlier in the case, the district court had also dismissed a due-process claim; Swenson does not challenge that dismissal, so we say nothing further about it.) On appeal Swenson first challenges the district court’s ruling that no evidence supported his claim of age discrimination. He again cites to Amisano and Carpenter’s remarks about his age, which, he says, were made “around the same time” as his discharge. He also repeats his contention that the extra “job duties and tasks that required his constant attention” prevented him from focusing on the business plan and were added because of his age. He proceeds under the direct method of proof, under which a plaintiff claiming age discrimination may rely on circumstantial evidence of suspicious timing, ambiguous statements, and “other bits and pieces” from which an inference of discriminatory intent might be drawn. Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1105 (7th Cir. 2012) (internal citation and quotation marks omitted); see Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114–15 (7th Cir. 2009); Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003). Swenson’s evidence does not support a reasonable inference that Salient discriminated against him based on his age. We begin with his assertion that Amisano and Carpenter, both decisionmakers, demanded that Swenson divulge his age. We may assume that they asked for his age (though they deny it) and that their inquiry reflected age bias (although neutral reasons for the inquiry are possible). To be actionable under the direct method, however, a decisionmaker’s discriminatory remarks must be both contemporaneous to the adverse employment action and refer to that adverse action. See Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 605 (7th Cir. 2012); Mach v. Will Cnty. Sheriff, 580 F.3d 495, 499 (7th Cir. 2009); Hemsworth, II v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir. 2007). Amisano and Carpenter’s remarks do not meet either No. 13-3013 Page 4 requirement. Swenson testified that they questioned him, not “around the same time” as his discharge, but during his first three days of work. Because the comments preceded his discharge by nearly two months, they were not contemporaneous to the firing. See Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906, 910–11 (7th Cir. 2002) (finding supervisors’ statements made “nearly two months” before firing were not contemporaneous to discharge and thus not evidence of discrimination). Furthermore, when they questioned him at the onset of his employment, they did not refer to or threaten any adverse action. And when they fired him after he did not produce a draft business plan, they did not refer to his refusal to divulge his age. On this record, then, a reasonable jury could not infer an age-discriminatory discharge from earlier, limited requests for his age. Swenson’s evidence about his workload also falls short because he has not specified what the extra assignments entailed. Without some detail about the work, let alone a reason to connect it to Swenson’s age, a reasonable jury could not find that Salient, by imposing those tasks, acted with discriminatory intent. See Lucas v. Chi. Trans. Auth., 367 F.3d 714, 726 (7th Cir. 2004) (refusing to consider plaintiff’s assertions that African–Americans were treated “more harshly” in that they were given tougher assignments where plaintiff offered no specifics to support his assertions). Swenson next contests the district court’s rejection of his state-law claims, but the grant of summary judgment was correct because he was an at-will employee who could be fired for any non-forbidden reason, or no reason. See Hunt v. DaVita, Inc., 680 F.3d 775, 778 (7th Cir. 2012); Hartlein v. Ill. Power Co., 601 N.E.2d 720, 728 (Ill. 1992). In Illinois, employment that is not for a fixed term is presumed to be at will and terminable by any party at any time. A.T.N., Inc. v. McAirlaid’s Vliesstoffe GMBG & Co., 557 F.3d 483, 486 (7th Cir. 2009); McInerney v. Charter Golf, Inc., 680 N.E.2d 1347, 1349 (Ill. 1997). That describes Swenson’s arrangement. The June 17 offer that Swenson accepted provides that “either one of us can terminate employment at will, with or without cause.” Swenson also agreed that “this offer of employment supersedes any prior or subsequent oral representation that might be made.” What’s more, Salient’s employee handbook, which Swenson also signed, repeats that his employment at the company was at will. Swenson argues that four documents refute that he was employed at will. See Janda v. U.S. Cellular Corp., 961 N.E.2d 425, 437–38 (Ill. App. Ct. 2011). He points to two restrictive covenants that he signed, one 3-year noncompete agreement, and one 10-year nondisclosure agreement. He believes that these are irreconcilable with at-will employment. Swenson also points to the employee handbook and job application. He No. 13-3013 Page 5 argues that both contemplate that Salient’s president can execute employment contracts that override an at-will presumption. Because he reported to the president, Swenson concludes, he must not have been employed at will. None of these documents suggests that Swenson was not employed at will. Illinois law recognizes that an employer’s need for restrictive covenants like Swenson’s is consistent with at-will employment. See Abel v. Fox, 654 N.E.2d 591, 597 (Ill. App. Ct. 1995); see also Medtronic, Inc. v. Benda, 689 F.2d 645, 654 & n.4 (7th Cir. 1982) (recognizing coexistence of at-will employment and restrictive covenants). And although Amisano has the power to execute contracts that may override the presumption of an at-will employment relationship, Swenson furnished no evidence that he did. To the contrary, as we have already observed, the offer letter that Swenson signed stated that the relationship was at will. In any case, that letter was signed by Cavanaugh, the corporate controller, not Amisano. Lastly, we reject Swenson’s contention that the handbook’s discussion of at-will employment is ineffective because the policy is buried inside the manual. Although the discussion is toward the end of the handbook, at-will employment is defined in the first sentence of the section on dismissals. Moreover, the second paragraph of the acknowledgment form that he signed repeats his understanding that the handbook creates no “guarantee of continued employment.” This prominence is sufficient to create at-will employment status. See Habighurst v. Edlong Corp., 568 N.E.2d 226, 228–30 (Ill. App. Ct. 1991) (approving disclaimer on signed, last page of handbook). Accordingly, we AFFIRM the judgment of the district court. 

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 33,334 5 JOSEPH DOMINGUEZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 8 Matthew J. Sandoval, District Judge 9 Gary K. King, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Bregman & Loman, P.C. 14 Eric Loman 15 Sam Bregman 16 Albuquerque, NM 17 for Appellant  1 MEMORANDUM OPINION 2 KENNEDY, Chief Judge. 3 {1} Summary dismissal was proposed for the reasons stated in the notice of 4 proposed summary disposition. No memorandum opposing summary dismissal has 5 been filed, and the time for doing so has expired. 6 {2} DISMISSED. 7 {3} IT IS SO ORDERED. 8 ____________________________________ 9 RODERICK T. KENNEDY, Chief Judge 10 WE CONCUR: 11 _________________________________ 12 MICHAEL D. BUSTAMANTE, Judge 13 _________________________________ 14 CYNTHIA A. FRY, Judge 2 

45 F.3d 369 97 Ed. Law Rep. 139, 10 IER Cases 321,23 Media L. Rep. 1375 Demar NILSON, Plaintiff-Appellant,v.LAYTON CITY and Rex Brimhall, Defendants-Appellees. No. 94-4077. United States Court of Appeals,Tenth Circuit. Jan. 6, 1995. Robert H. Copier, Salt Lake City, UT, for plaintiff/appellant. Anne Swensen (Julianne P. Blanch, with her on the briefs) of Snow, Christensen & Martineau, Salt Lake City, UT, for defendants/appellees. Before SEYMOUR, Chief Judge, LOGAN, and EBEL, Circuit Judges. SEYMOUR, Chief Judge. 1 Demar Nilson brought this 42 U.S.C. Sec. 1983 action alleging violations of his constitutional right to privacy because a Layton City official publicized an expunged portion of his criminal record. In a bench trial, the district court rejected Mr. Nilson's claim, and he appeals. We affirm. I. 2 In 1981, while a school teacher in the Davis County School District, Mr. Nilson pled no contest to forcible sexual abuse charges. Although charged in Davis County, Mr. Nilson was arrested and booked in Layton. The court sentenced him to one year of suspended jail time, indefinite probation, and a $1,000 fine. The Davis County School District terminated Mr. Nilson's employment, and the state revoked his teaching certificate for approximately one year. In 1984, the Jordan School District in Salt Lake County hired Mr. Nilson. On motion of Mr. Nilson, a district judge in Davis County entered an Order of Expungement on July 23, 1990, pursuant to Utah Code Ann. Sec. 77-18-2 (1990).1 The court never filed the expungement order with Layton or any Layton official. 3 The Jordan School District began receiving information and complaints regarding Mr. Nilson's prior criminal history in 1990. Soon thereafter, the Salt Lake County Sheriff's Office learned of Mr. Nilson's past conviction and received new complaints of sexual abuse by Mr. Nilson. Salt Lake County began investigating these new sexual abuse allegations and charged Mr. Nilson in 1991 with forcible sexual abuse. 4 On October 23, 1991, Sergeant Brimhall of the Layton Police Department discussed Mr. Nilson's prior conviction with Steve Eager of KSL-TV. As a Layton police officer in 1981, Sergeant Brimhall had first-hand knowledge of Mr. Nilson's arrest and conviction. However, because no one filed the expungement order with any Layton official or agency, the Layton records did not provide knowledge of the expungement, and it is unclear from the district court's findings whether Sergeant Brimhall actually knew of the expungement. Following his discussion with Sergeant Brimhall, Mr. Eager reported on the evening news that Layton had arrested and convicted Mr. Nilson for child abuse in 1981 and that some time thereafter his record was expunged. Also on the October 23 broadcast, two of Mr. Nilson's former Davis County students anonymously claimed to be victims of his sexual abuse. The charges and the news broadcast received substantial publicity. 5 Although Mr. Nilson was not convicted of the 1991 charges, the Jordan School District terminated his employment in 1992. Mr. Nilson then filed this section 1983 action against Layton and Sergeant Brimhall, alleging that Sergeant Brimhall's post-expungement interview with Mr. Eager and the ensuing media publicity violated his constitutional right to privacy. The district court concluded that neither Layton nor Sergeant Brimhall had first-hand knowledge of the expungement order and therefore did not violate Utah Stat.Ann. Sec. 77-18-2(5)(a). Because defendants were not liable under section 77-18-2, the court further concluded, they could not be held liable under section 1983.2 II. 6 On appeal, Mr. Nilson argues that the district court's analysis was misguided. He contends that the constitutionally-rooted right to privacy is a question of federal law, and the relevant inquiry is whether he had a legitimate expectation of privacy in his expunged criminal records. Mr. Nilson further argues that the Utah expungement statute created a legitimate expectation of privacy, and violations thereof implicated his constitutional right to privacy. We agree with Mr. Nilson's assertion that the constitutional right of privacy is a question of federal law, but we disagree that he had a legitimate expectation of privacy in his expunged criminal records. 7 Whether Sergeant Brimhall's post-expungement disclosure of Mr. Nilson's criminal history violated Mr. Nilson's right to privacy is a question of law which we review de novo. Estate of Holl v. Commissioner of Internal Revenue, 967 F.2d 1437, 1438 (10th Cir.1992). The Due Process Clause of the Fourteenth Amendment protects individuals from state intrusion on fundamental aspects of personal privacy. See Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). The Supreme Court has held that the right to privacy safeguards individuals from government disclosure of personal information. See Nixon v. Administrator of Gen'l Serv., 433 U.S. 425, 457, 97 S.Ct. 2777, 2797, 53 L.Ed.2d 867 (1977); Whalen v. Roe, 429 U.S. 589, 599 & n. 24, 97 S.Ct. 869, 876 & n. 24, 51 L.Ed.2d 64 (1977). In determining whether information is of such a personal nature that it demands constitutional protection, we must consider "(1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner." Denver Policemen's Protective Ass'n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir.1981). Because the alleged unconstitutional conduct in this case fails to meet the first prong of this test, we hold that Mr. Nilson has no constitutional right to privacy in his expunged criminal record. 8 Expectations of privacy are legitimate if the information which the state possesses is highly personal or intimate. Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986). Information readily available to the public is not protected by the constitutional right to privacy. Consequently, government disclosures of arrest records, see Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), judicial proceedings, see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975), and information contained in police reports, see Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207 (3d Cir.1991), cert. denied --- U.S. ----, 112 S.Ct. 1171, 117 L.Ed.2d 417 (1992), do not implicate the right to privacy. 9 Furthermore, a validly enacted law places citizens on notice that violations thereof do not fall within the realm of privacy. Mangels, 789 F.2d at 839. Criminal activity is thus not protected by the right to privacy. In Mangels, the Denver Fire Department publicized in the media its dismissal of two employees for drug usage. The firefighters argued that the disclosure of this information implicated their right to privacy. We concluded that information concerning unlawful activity "is not encompassed by any right of confidentiality, and therefore it may be communicated to the news media." Id. at 839 (footnote omitted) (citing Paul v. Davis, 424 U.S. at 712-13, 96 S.Ct. at 1165-66). In our judgment, the holding in Mangels controls here. Mr. Nilson pled no contest to charges of forcible sexual abuse in 1981. Laws proscribing sexual abuse place Mr. Nilson on notice that violations thereof do not fall within the constitutionally protected privacy realm. Consequently, Sergeant Brimhall's interview with Mr. Eager, during which he discussed the 1981 sexual abuse charges and conviction, did not breach Mr. Nilson's privacy rights. 10 The 1990 expungement order does not change this conclusion. An expungement order does not privatize criminal activity. While it removes a particular arrest and/or conviction from an individual's criminal record, the underlying object of expungement remains public. Court records and police blotters permanently document the expunged incident, and those officials integrally involved retain knowledge of the event. An expunged arrest and/or conviction is never truly removed from the public record and thus is not entitled to privacy protection. Mr. Brimhall, as an officer in the Layton police department in 1981, had first-hand knowledge of Mr. Nilson's arrest and conviction. The expungement order did not erase this knowledge. We hold that Mr. Nilson did not have a legitimate expectation of privacy in his expunged criminal records. 11 Mr. Nilson argues that the Utah expungement statute created the legitimate expectation of privacy, and that Sergeant Brimhall's violation of the statute consequently implicated his privacy rights. We disagree. Substantive due process rights are founded not upon state law but upon "deeply rooted notions of fundamental personal interests derived from the Constitution." Mangels, 789 F.2d at 839 (citing Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 228-30, 106 S.Ct. 507, 515-16, 88 L.Ed.2d 523 (1985) (Powell, J., concurring)). While state statutes and regulations may inform our judgement regarding the scope of constitutional rights, they "fall far short of the kind of proof necessary" to establish a reasonable expectation of privacy. Flanagan v. Munger, 890 F.2d 1557, 1571 (10th Cir.1989). Mere allegations that an official failed to abide by state law will not suffice to state a constitutional claim. The disclosed information itself must warrant constitutional protection. See Paul v. Davis, 424 U.S. at 713, 96 S.Ct. at 1166. We have already concluded that Mr. Nilson's criminal history, despite the expungement order, is not protected by the constitutional right to privacy. It is therefore irrelevant to our inquiry whether Sergeant Brimhall violated the Utah expungement statute. 12 For the reasons stated in this opinion, we AFFIRM the district court's decision.3 1 Utah Stat.Ann. Sec. 77-18-2(5)(a) (1990) (repealed 1994) states in relevant part: "The Utah Bureau of Criminal Identification shall keep, index, and maintain all expunged and sealed records of arrests and convictions. Any agency or its employee who receives an expungement order may not divulge any information in the sealed expunged records." 2 The district court also found that Sergeant Brimhall's media disclosures did not proximately cause Mr. Nilson's injuries. Because we conclude that the constitutional right to privacy does not protect Mr. Nilson's expunged criminal record, we do not reach the causation issue 3 Mr. Nilson argues that the district court erred in failing to assess damages for harm stemming from Sergeant Brimhall's disclosure. Because damages follow liability, we do not address this claim

198 F.3d 705 (8th Cir. 1999) REYNOLD D. KLEIN, PLAINTIFF - APPELLANT,v.PATRICK D. MCGOWAN, IN HIS CAPACITY AS SHERIFF OF HENNEPIN COUNTY, AND IN HIS INDIVIDUAL CAPACITY; HENNEPIN COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF MINNESOTA; DONALD J. OMODT; CHARLES E. VENSKE; DONALD H. VODEGAL, IN THEIR OFFICIAL CAPACITIES WITH THE HENNEPIN COUNTY SHERIFF'S DEPARTMENT, AND IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS - APPELLEES. No. 99-1866 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Submitted: October 20, 1999Filed: December 20, 1999 Appeal from the United States District Court for the District of Minnesota. Before Bowman, Ross and Murphy, Circuit Judges. Murphy, Circuit Judge. 1 After resigning from his position as a technician assistant at the Hennepin County Sheriff's Department, Reynold D. Klein sued the county, two of his supervisors and the current and former sheriff for sexual harassment and constructive discharge under 42 U.S.C. §1983, 42 U.S.C. §2000e et seq. (Title VII), and the Minnesota Human Rights Act (MHRA), Minn. Stat. Ch. 363 (1996), and for intentional infliction of emotional distress. The district court1 granted summary judgment for the defendants, and Klein appeals. A. 2 Reynold D. Klein worked as an aide in the sheriff's communications division, from May 5, 1980 until he resigned on May 10, 1996. In January 1997, more than ten months after leaving the sheriff's office, Klein filed a charge with the Equal Employment Opportunity Commission (EEOC) claiming that he had been constructively discharged because a hostile work environment caused his resignation. After receiving a right to sue letter, he filed this action against Hennepin County, Sheriff Patrick D. McGowan, former Sheriff Donald Omodt, former Captain Donald H. Vodegel, and Communications Division Lead Technician Charles E. Venske. In his brief Klein states that he was harassed because he was perceived as "being or behaving like a homosexual or of not behaving in the 'required manly' way," and claims he "would not have been treated the same way if he had been a woman." Klein later dismissed his claims against the two sheriffs. In his thirty-seven page declaration in opposition to the remaining defendants' motion for summary judgment, Klein alleged numerous incidents as part of the harassment. These allegations concerned various comments and innuendoes and claimed discrimination in promotion and assignment of duties. Klein does not supply dates for most of the incidents, but they appear to span his sixteen years of employment. 3 Venske supervised Klein from 1986 until September of 1995. Among Klein's complaints tied to a date are several incidents involving Venske. Klein asserts that Venske said to him in 1986, "If I ever find out you're a queer, I'll fire you," and in August 1989, "go home and play with yourself." Years later, on February 27, 1996, Venske announced that all of the technicians other than Klein would receive business cards. Venske issued Klein a disciplinary deficiency slip on March 28, 1996, after observing him flush a toilet with his foot. Venske noted on the slip that "Reynold has been verbally warned not to kick the flush handle on the men's stool. . . The handle has had to be replaced several times in the past year." Several weeks later when Klein called in sick less than an hour before his shift began, Venske told him, "[c]alling in 55 minutes before the start of your shift is against the rules. That's worthy of another deficiency report." Klein does not indicate that such a report was ever filed. Klein says that "during [his] last few days" of work, he found Venske and six technicians standing behind his workbench in a semi-circle "as a symbol of their solidarity among themselves and against [him]." He also makes other assertions without any time reference. He claims to have overheard Venske discussing his sexual preference with another employee, for example, and asserts that Venske harassed him by filing "unjustifiably low performance ratings" and that Venske assigned him menial tasks and periodically threatened him with dismissal. 4 Klein also claims that Venske failed to respond adequately to incidents of harassment he suffered from other employees. Klein alleges that he reported two separate incidents to Venske in September of 1993. Klein asserts that he overheard a co-worker say on September 2, "I'll use Vaseline; [Klein] knows all about that." When he notified Venske of this comment, he says Venske discouraged him from filing a formal complaint. Later that same month, Klein overheard a co-worker say in the locker room, "[h]e's a homo. . . He's come out of the closet." Klein was on the other side of a row of lockers when this was said, and the two other workers threw boxes over into his row. Klein alleges that Venske took no action after learning of this incident, although the affidavit of Lieutenant Bruce Lennox, Venske's immediate supervisor, indicates that Venske reported this as well as Klein's earlier complaint. Lennox states that he interviewed Klein, who told him that he did not wish to pursue a formal complaint, and that Lennox nevertheless admonished the alleged harassers, distributed an anti-harassment memo to all employees in the division, and notified his superior officer of the chain of events. Klein also alleges that on some unspecified date Venske failed to act after overhearing another employee telling Klein "[y]ou're nothing but a fucking homo." 5 Although Klein's declaration is vague on the point, Vodegel appears to have been Venske's supervisor and the office captain from the time that Klein began working in 1986 until Vodegel retired in 1993. Klein alleges that when he reported some unspecified incident of sexual harassment to Vodegel in "1981 or 1982", Vodegel replied, "[t]hey're grown men. No, you can't change them." Klein also alleges that in 1985 Vodegel demanded of him "[a]re you a leader or a follower," and abruptly left the room "as if in a fit of rage" during the interchange that followed. 6 There is no evidence that Klein ever filed a formal complaint against the defendants with the Hennepin County Human Resources department. Klein asserts that he "was never told or informed about any process for reporting sexual . . . harassment", although elsewhere in his declaration he describes a conversation he had with Venske concerning whether he should file a report following an incident of harassment. Appellees offer the affidavit of Syl Booth, the Hennepin County employee responsible for investigating all harassment complaints made by county employees. Booth describes in detail the grievance procedure for employees who wish to report harassment and states that all county employees receive a pamphlet which tells them what constitutes harassment and how to file a complaint. In his affidavit Lieutenant Lennox claims that he discussed the formal grievance procedure with Klein. 7 Before the district court ruled on the defendants' motion for summary judgment, Klein voluntarily dismissed all counts against defendants McGowan and Omodt and his state law claims. The remaining claims against the county, Venske, and Vodegal under Title VII and §1983 were dismissed by the district court on the motion of the defendants for summary judgment. The court ruled that the Title VII claims were not timely and that Klein had not made out a prima facie case that the violations alleged were severe or pervasive or based on sex and that his §1983 claim failed because he had not made out a prima facie case of constructive discharge. 8 On appeal, Klein argues that there are material issues of fact related to his claims and to whether a hostile work environment caused him to be constructively discharged. Appellants argue that Klein failed to make out a prima facie case of a Title VII violation because the alleged conduct was not severe or pervasive, and was not due to his sex, that discrimination based upon sexual orientation does not fall within Title VII, and that the bulk of his allegations fall outside the 300 day limitations period. Appellants assert that Klein has not made out a §1983 violation because he has not shown that a reasonable person would have felt compelled to resign, he has not established sufficient involvement of the individual defendants to make them liable, Venske and Vodegal are entitled to qualified immunity, and the claim is time barred. B. 9 Our review of a grant of summary judgment is de novo. Hanenburg v. Principal Mutual Life Insurance Co., 118 F.3d 570, 573 (8th Cir. 1997). While we view the facts in a light most favorable to the non-moving party, mere allegations which are not supported with specific facts are not enough to withstand the motion. Krenik v. County of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). See also Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1110 (8th Cir. 1998) (Conclusory assertions insufficient to make prima facie showing of Title VII violation). 10 Title VII prohibits employment discrimination based on sex. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998). A court evaluating a Title VII claim must evaluate the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Phillips, 156 F.3d at 888, quoting Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Simple teasing, offhand comments, and isolated incidents generally cannot amount to severe or pervasive harassment. Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1158 (8th Cir. 1999). 11 Before bringing a Title VII action, a plaintiff must file a charge with the EEOC within 300 days of the event giving rise to the cause of action. 42 U.S.C. §2000e-5(e). Conduct which occurred more than 300 days before the date of filing cannot be grounds for a suit unless it is part of a continuing violation which is systematic or serial. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 572-73 (8th Cir. 1997). To avail himself of this exception, a plaintiff must demonstrate that some incident of harassment occurred within the 300 day limitations period, Scott v. St. Paul Postal Serv., 720 F.2d 524, 525 (8th Cir. 1983) (per curiam), and that there is a sufficient nexus between that incident and the other instances of harassment. West v. Philadelphia Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995). 12 In order to make out a prima facie case that he was subjected to a hostile work environment a plaintiff must show that (1) he is a member of a protected group; (2) unwelcome harassment occurred; (3) a causal nexus existed between the harassment and his protected group status; (4) the harassment affected a term, condition, or privilege of employment; and (5) his employer knew or should have known of the harassment and failed to take prompt and effective remedial action. Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999). Constructive discharge occurs when an employer deliberately renders the employee's working conditions intolerable and thus forces him to quit his job. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997). The conduct complained of must have been severe or pervasive enough to create an objectively hostile or abusive work environment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). If a plaintiff establishes that a supervisor with authority over him created a hostile work environment, he may be able to hold the employer vicariously liable. Faragher v. City of Boca Raton, 524 U.S. 775, ---, 118 S.Ct. 2275, 2292-3 (1998), Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, ---, 118 S.Ct. 2257, 2270 (1998). 13 Because Klein filed his Title VII charge with the EEOC on January 21, 1997, he must demonstrate that conduct after March 28, 1996 constituted sexual harassment. Klein claims several incidents of alleged harassment occurred after that date: the filing of a deficiency slip, the threatened filing of a deficiency slip, Venske's refusal to issue him business cards, and his observation that Venske and the technicians were standing "in solidarity". 14 The four incidents alleged during the 300 day limitation period do not amount to severe or pervasive harassment, nor are they tied to sex. Klein has not produced evidence that Venske's use of the office disciplinary procedure was based on sex or that he himself did not do what was charged. Similarly, Klein has not set forth sufficient facts to support his claim that Venske's allegedly discriminatory distribution of business cards or his standing with the technicians amounted to harassment on the basis of sex. Moreover, these incidents did not rise to the level of severe or pervasive harassment. Other allegations about conduct occurring at some unspecified time, or between 1986 and March 28, 1996, may not be considered since they have not been shown to fall within the 300 day limitation period and Klein has not established a continuing violation. The district court did not err in dismissing his Title VII claim as untimely. 15 Klein claims that the treatment he received in the sheriff's department also violated his substantive due process rights. Substantive due process may be violated if state action either shocks the conscience or offends judicial notions of fairness or human dignity. Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir.1989). To meet his burden a §1983 plaintiff must demonstrate that the government action complained of is "truly irrational," that is "something more than ... arbitrary, capricious, or in violation of state law." Id. 16 Klein cites Woodward v. City of Worland, 977 F.2d 1392 (10th Cir. 1992), as the central support for his substantive due process claim under §1983. In that case the plaintiff alleged numerous instances of sexual harassment occurring during several years of employment, but she continued to work without filing a complaint. The plaintiff did not notify her employer of the harassment, nor did she allege that she had believed that requesting disciplinary action against her harassers would be ineffective. The defendants were entitled to summary judgment because the plaintiff had failed to establish a genuine dispute as to whether a reasonable person would have believed that there was no reasonable alternative to resignation. A plaintiff must show considerably more than unpleasant working conditions. Id. at 1402. An employee has a §1983 cause of action only when an employer deliberately makes or allows the employee's working conditions to become so intolerable that the employee has no other choice but to quit. Id. at 1401 quoting Irving v. Dubuque Packing Co., 689 F.2d 170, 172 (10th Cir. 1982) (emphasis in original). A §1983 plaintiff must also take steps short of resignation that a reasonable person would take to make her working conditions more tolerable. Id. 17 Like the Woodward plaintiff, Klein failed to seek formal redress of his grievances. He never filed a complaint during his sixteen years of employment, and he did not establish that a reasonable person would have believed that filing a formal complaint in his circumstances would be fruitless. The very authority which Klein cites indicates that he was not constructively discharged because he did not take reasonable steps to seek relief. 18 Klein has not established a prima facie case under §1983, and the incidents about which he complains, spread out as they are over many years, do not rise to the level of shocking the conscience. While tasteless and inappropriate comments were made and other events no doubt upset him, Klein has not shown that Venske or Vodegal engaged in or were responsible for conduct so arbitrary or capricious as to give rise to a constitutional tort claim. 19 For these reasons, the judgment of the district court is affirmed. NOTE: 1 The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota.

789 F.2d 795 UNITED STATES of America, Plaintiff-Appellee,v.William Paul SCOTT, Defendant-Appellant. No. 85-5175. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 8, 1986.Decided May 13, 1986. Pamela J. Naughton, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Pamela J. Naughton, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee. Gershon D. Greenblatt, San Diego, Cal., for defendant-appellant. Appeal from the United States District Court for the Southern District of California. Before SCHROEDER and FLETCHER, Circuit Judges, and MacBRIDE,* District Judge. FLETCHER, Circuit Judge: 1 William Paul Scott appeals his conviction on six counts of unauthorized sale of government property, 18 U.S.C. Sec. 641 (1982).1 We affirm. BACKGROUND 2 This conviction arose out of a sting operation conducted by the FBI and the Naval Investigative Service that attempted to address the problem of missing equipment at the Marine Corps base at Camp Pendleton, California. The agents conducting the operation opened an undercover store known as Golden State Surplus (GSS) and advertised their willingness to purchase military equipment. 3 Scott was a Gunnery Sergeant at Camp Pendleton. Between September, 1983, and February, 1984, it is undisputed that he sold government property to GSS on six different occasions. He told the agents working at GSS that he needed the money for his personal use. On several of these occasions, the agents offered or Scott asked for a beer, which was provided to him. The agents commonly gave beer and soft drinks to people who sold them equipment to make them feel at home and encourage them to talk. 4 The trial centered on whether Scott had authority to sell gear he believed was surplus and what he did with the funds that he received from the sales. There was evidence that he was given no explicit authority to sell gear and that the sales were beyond the scope of his implied authority. Scott testified that he believed that it was within his authority to sell the excess material because he used the funds to complete a military assignment--to clean up an armory and put it in a condition to pass inspection. 5 It is undisputed that Scott spent a great deal of effort and some of his own money to make significant improvements to the armory. Several witnesses commented on how well he fixed it up. However, there was contradictory testimony as to when he became aware he would be working on the armory. He claims he knew as early as August, 1983, but there was evidence from which the jury could find that he did not begin planning the clean-up of the armory until November, 1983, or even as late as January, 1984, some months after the first sales were made. There was also evidence that Scott was having financial difficulties in the fall of 1983, and the jury could have inferred that he needed the sale proceeds for his own use. 6 After the jury returned a verdict of guilty, Scott moved for dismissal due to outrageous government conduct. He also moved for a new trial on several grounds, including the trial court's failure to give an instruction on the defense of good faith belief and improper closing argument by the prosecution. These motions were denied. Scott timely appeals. DISCUSSION I. GOOD FAITH/NO INTENT TO HARM INSTRUCTION 7 Scott claims the trial court erred in denying his requested instructions on good faith and lack of intent to harm the government. The availability of such defenses to the crime of selling government property without authorization is a question of law. We review de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Failure to give an instruction on the defendant's theory of the case is reversible error if the theory is legally sound and evidence in the case makes it applicable. United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir.1984). 8 18 U.S.C. Sec. 641 contains a collection of crimes including embezzlement, larceny, and related offenses that do not fit into strict common law categories. See Morissette v. United States, 342 U.S. 246, 266-67, 269 n. 28, 72 S.Ct. 240, 251-52, 253 n. 28, 96 L.Ed. 288 (1952). "Guilty" intent is an element of each section 641 crime. Id. at 269 n. 28, 72 S.Ct. at 253 n. 28. The defendant "must have had knowledge of the facts, though not necessarily the law" that made his act a crime. Id. at 271, 72 S.Ct. at 254. No court has directly addressed how this intent requirement applies to the crime of selling government property without authorization. 9 The Sixth Circuit has recently interpreted Morissette to hold that section 641 contains "a traditional criminal intent standard for all [its] proscribed activities." United States v. Jeter, 775 F.2d 670, 681 (6th Cir.1985). Thus, inadvertent, negligent or reckless action "would fail to trigger the criminal prohibitions" of the section. Id. While not directly addressing the issue raised here, Jeter does say that "purposeful action" is not required, id., and recognizes no good faith defense. 10 Scott argues that the requisite intent includes a bad purpose of some sort: bad faith or an intent to harm the government. A common sense reading of the statute suggests that he is wrong. The section prohibits unauthorized sale of government property. Logically, the requisite intent is intent to sell without authorization, and nothing more. There is no indication that unauthorized selling for a good purpose is allowed. Cf. United States v. Powell, 294 F.Supp. 1353, 1355 (E.D.Va.1968) (rejecting claim that subsequent restitution or intent to return property is defense to embezzlement charge under section 641), aff'd on other grounds, 413 F.2d 1037 (4th Cir.1969) (per curiam). We hold that any intentional sale with knowledge of the facts that make it a crime2 (i.e., that the sale is made without authority) is prohibited, regardless of motive. The trial court properly rejected the proposed instructions. 11 Scott relies on cases that have dealt with the specific intent required for conversion of government property, also prohibited by section 641. The offense of conversion includes the element of serious interference with another's property rights. See United States v. May, 625 F.2d 186, 192 (8th Cir.1980). Thus, if the defendant did not know that he was seriously interfering or that the property was another's, he does not have the requisite intent and cannot be convicted of conversion. See, e.g., United States v. Croft, 750 F.2d 1354, 1362-63, 1366 (7th Cir.1984); United States v. Shackelford, 677 F.2d 422, 425-26 (5th Cir.1982); United States v. Wilson, 636 F.2d 225, 228 (8th Cir.1980). Cases discussing the elements of conversion do not support a good faith defense for unauthorized sale. The two crimes are separate and distinct. Thomas v. United States, 249 F.2d 429, 430 (9th Cir.1957) (per curiam), cert. denied, 355 U.S. 936, 78 S.Ct. 421, 2 L.Ed.2d 418 (1958); Hawkins v. United States, 458 F.2d 1153, 1155 (5th Cir.1972). To write the elements of conversion into the crime of unauthorized sale would be to assume that Congress meant nothing at all by making them separate crimes, an assumption we refuse to make. See California v. Tahoe Regional Planning Agency, 766 F.2d 1308, 1314 (9th Cir.1985) ("statute should not be construed in a way that renders words or phrases superfluous"). See also Morisette, 342 U.S. at 271-73, 72 S.Ct. at 254-55 (section 641 designed to reach all instances of larceny-type offenses and avoid gaps and loopholes between them).3 II. SUFFICIENCY OF THE EVIDENCE 12 Scott contends that there was insufficient evidence that he was not authorized to make the sales. We review the record to "determine whether a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir.1986). 13 We find sufficient evidence from which the jury could conclude that Scott did not have authority to sell the property. The FBI agent who worked on the case, an ex-Marine, testified that a Marine cannot go out and sell property just because it is excess. A Marine Corps supply officer testified that Naval Regulations forbid the sale of Marine Corps or government property and that the correct procedure for dealing with most excess property was to turn it in to the supply officer. Scott's commanding officer testified that rope sold by Scott to GSS is normally not sold, but reused by the Marines, and that it should not be given away, even to other units. He specifically stated that Scott would not have been authorized to sell surplus gear, as such sale would be illegal. The officer also stated that if he had known Scott was selling gear to pay for improvements at the armory, he "would have relieved him of his duties and attempted to process him for court martial." Other officers testified that they had not given Scott authority to sell the property and did not know that he had been so authorized. 14 In addition to the direct evidence of lack of authority, there was circumstantial evidence that Scott might have been using the money acquired from the sales to pay for home improvements or to pay off his own debts. Scott, himself, told that story to the agents operating the surplus store. If Scott was using the money for private purposes, obviously the sales were unauthorized. III. ABILITY TO PRESENT DEFENSE 15 Scott claims he was denied his due process right to present his defense. See Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). He claims this was accomplished by placing limits on the amount of time he spent testifying and by the prosecution suppressing photographs. A. Time Limitation 16 The judge was anxious to complete the trial, and did set a time limit on Scott's testimony. However, defense counsel made no objection at the time, and made no offer of proof as to additional testimony that he would have presented. The most significant limitation was placed on the prosecution, which was given only about one hour to cross-examine Scott. 17 Scott argues that the limitation prevented him from giving a thorough presentation of the armory improvements. Yet the record reveals that the jury received a full picture of the improvements. Any further testimony would have been cumulative. Normally a trial judge's decision to exclude cumulative evidence is reviewed for abuse of discretion. See United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 823 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 2684, 86 L.Ed.2d 701 (1985). Although the district court did not rule explicitly that any further testimony on this topic would have been cumulative, it is clear from the record that such was the case. We review to ensure that there was no denial of a fair trial resulting from the time limitation. We conclude there was no violation of Scott's due process rights. B. Suppression of Photographs 18 The second prong of this claim stems from some missing photographs of the armory improvements. During the last day of testimony, when Scott was on the stand, the photographs, which had been in the possession of the prosecution, disappeared. Scott was unable to use them to testify. The photographs reappeared at the end of the day, and were put into evidence with the rest of the exhibits. The prosecutor aggravated this problem by arguing to the jury that Scott had not shown the pictures to other witnesses. 19 Although there is no evidence that the photographs were deliberately suppressed, the situation is analogous to a Brady claim, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where the prosecution deliberately does not disclose exculpatory evidence. When a defendant requests material and it is not produced, reversal is required only if the material would tend to exculpate the defendant or reduce his penalty. United States v. Dupuy, 760 F.2d 1492, 1501 n. 3 (9th Cir.1985). In this case, the jury saw the photographs. The only thing lacking was the defendant's own explanation of the pictures. Yet the defendant and others had described the armory improvements in great detail. It is difficult to believe further explanation would have had any effect on the verdict, especially since the jury got to look at the pictures anyway. Moreover, Scott's counsel made no attempt to renew his examination once the pictures were found. Cf. United States v. Bell, 742 F.2d 509 (9th Cir.1984) (no reversal for negligent failure to disclose Brady materials where defense counsel aware of materials yet did not move for continuance to obtain them). Scott's right to present a defense was not infringed. IV. IMPROPER ARGUMENT 20 Scott argues that the trial judge erred in not granting a mistrial after the following argument by the prosecutor: 21 Prosecutor: ... And how does the law deal with that? How does justice deal with that, breaking the law for a good motive? This is even if you believe his story about the improvements. But lets say you do for a minute. How do you justify your duty in finding those elements and how do you find him guilty with maybe a good motive? Well, that's not your job. So that's an easy one. That's the Judge's job. Your job is simply to be judges of fact and to conclude that all of these elements are met or conclude they are not met. That's it. You are not to allow sympathy, or prejudice, or passion, or any kind of preconceptions to judge (sic) your judgement (sic) on the facts. 22 Also, the Judge will instruct you are not to consider whatever punishment the defendant might receive if you find him guilty. And this is an important instruction, because I know as jurors you worry about that. I mean are we sending this kid away for life if we convict him. 23 Defense Counsel: Objection. That's an improper argument, your honor. 24 The Court: Overruled. 25 Prosecutor: That's a proper consideration for jurors. It's a human consideration. Ladies and gentlemen, it's Judge Keep's job. That's what she gets paid for. She has heard all of the evidence that you have heard-- 26 Defense Counsel: Objection. Improper argument, your honor, refers to punishment. 27 The Court: Overruled. 28 Prosecutor: Ladies and Gentlemen, it's Judge Keep's job. That is what she gets paid for. She has heard all of the evidence that you have ... (emphasis by Scott). 29 Scott claims this was an appeal to the passions and prejudices of the jury. See Viereck v. United States, 318 U.S. 236, 247-48, 63 S.Ct. 561, 566, 87 L.Ed.2d 734 (1943). 30 This argument was not error. The prosecutor was merely relaying information that would later be included in the jury instructions.4 During closing argument, counsel are entitled to argue to the jury the law that will be encompassed in the instructions. United States v. Sawyer, 443 F.2d 712, 713-14 (D.C.Cir.1971). See United States v. Companion, 508 F.2d 1021, 1022 (9th Cir.1974) (per curiam). V. GOVERNMENT MISCONDUCT 31 Scott's final claim is that the agents' supplying him with beer constituted government misconduct sufficient to warrant dismissal of the charges. We have noted that there might be a due process violation sufficient to require dismissal if government conduct in investigating crime "is so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982) (quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). Accord, United States v. McQuin, 612 F.2d 1193, 1196 (9th Cir.) (per curiam), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980). See United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973). 32 The basis of Scott's claim is that he had had some previous problems with alcohol, and therefore the government should not have given him beer. There is no evidence that Scott was an alcoholic or that the agents knew or had any reason to know of his previous problems with alcohol. There is also no evidence that he was drunk when he was at GSS. There was evidence that he had asked for a beer on at least one occasion. 33 Scott suggests that the agents had a duty to check the records to discover that he had had counseling for alcohol-related problems. He also suggests that the use of alcoholic beverages in the sting operation disrupted his "capacity to resist." There is no evidence to suggest Scott was not ready to sell at all times, however. In any event, the government's actions do not come close to meeting the strict test for government misconduct that we have enunciated. 34 AFFIRMED. * Hon. Thomas J. MacBride, Senior United States District Judge for the Eastern District of California, sitting by designation 1 "Whoever ... without authority, sells, conveys or disposes of any ... thing of value of the United States or of any department or agency thereof ... [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both ...." 2 Section 641 does not require that the defendant know the property belongs to the government. United States v. Howey, 427 F.2d 1017, 1017-18 (9th Cir.1970) 3 Scott argues in the alternative that the government must show either that the defendant intended to exercise control interfering with the rights of the United States or believed that the government would suffer monetary loss. Again, he supports his arguments with conversion cases. See United States v. Collins, 464 F.2d 1163 (9th Cir.1972); Wilson, 636 F.2d 225; May, 625 F.2d 186. Because, as noted, serious interference with property rights is an element of conversion, these defenses are germane to that crime, not to unauthorized sale 4 In his motion for mistrial, Scott claimed that this argument stated "in effect that the jurors could disregard defendant's testimony as to his intent because it did not amount to a legal defense and because the trial judge could be relied upon to consider defendant's 'excuse' when imposing sentence." Because the trial judge correctly ruled that no good faith defense was available, this would have been a proper line of argument

IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 43565 MAX J. GORRINGE, ) 2016 Unpublished Opinion No. 593 ) Petitioner-Appellant, ) Filed: July 7, 2016 ) v. ) Stephen W. Kenyon, Clerk ) STATE OF IDAHO, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Respondent. ) BE CITED AS AUTHORITY ) Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Molly J. Huskey, District Judge. Order denying motion to reconsider summary dismissal of petition for post- conviction relief, affirmed. Nevin, Benjamin, McKay & Bartlett LLP; Deborah Whipple, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. ________________________________________________ GRATTON, Judge Max J. Gorringe appeals from the district court’s order denying his motion to reconsider the summary dismissal of his petition for post-conviction relief. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Gorringe pled guilty to attempted strangulation. He appealed and this Court affirmed his conviction. State v. Gorringe, Docket No. 39638 (Ct. App. Mar. 13, 2013) (unpublished). Gorringe subsequently filed a pro se petition for post-conviction relief and moved for appointment of counsel. The district court appointed counsel and noticed its intent to dismiss the petition. Gorringe’s counsel moved for additional time to respond to the court’s notice of intent to dismiss and the court granted the motion for additional time. Gorringe’s counsel filed an amended petition and the State responded to the amended petition and moved for summary 1 dismissal. The court held a hearing on the State’s motion for summary dismissal where Gorringe’s counsel responded to the State’s motion. On May 19, 2015, the court summarily dismissed the amended petition in a written order. Gorringe subsequently filed a pro se motion entitled “Motion to Reconsider (set aside) Dismissal of Postconviction (5-20-15); Rule 59(e), 60(b) or any other rule that may Grant Relief and or in the alternative Motion to Review the record.” The motion was treated by the district court as a motion to alter or amend the judgment under Idaho Rule of Civil Procedure 59(e). The court denied the motion because Gorringe had not filed the motion within fourteen days of the dismissal of his petition as required by I.R.C.P. 59(e). Ross v. State, 141 Idaho 670, 672, 115 P.3d 761, 763 (Ct. App. 2005). The court also held that it would have denied the motion even if it had been timely because the motion failed to identify legal or factual errors that occurred in the post-conviction proceeding. The court did not address the motion as a motion for relief from judgment under I.R.C.P. 60(b). On September 21, 2015, Gorringe filed a notice of appeal. II. ANALYSIS Gorringe contends that the district court improperly treated his motion solely as a motion to alter or amend a judgment under I.R.C.P. 59(e). He suggests the court should have also treated his motion as a motion for relief from judgment under I.R.C.P. 60(b) because the motion contained allegations of ineffective assistance of post-conviction counsel. The State asserts that Gorringe did not file a timely appeal because the pendency of a Rule 60(b) motion does not toll the time for appeal. Alternatively, the State argues that Gorringe has not demonstrated a basis for relief under I.R.C.P. 60(b). When a movant files an ambiguously titled post-judgment motion, courts consider the substance of the motion to determine whether it is properly an I.R.C.P. 59(e) or I.R.C.P. 60(b) motion. Bias v. State, 159 Idaho 696, 706, 365 P.3d 1050, 1060 (Ct. App. 2015); see Vierstra v. Vierstra, 153 Idaho 873, 879, 292 P.3d 264, 270 (2012). A motion is most appropriately considered a motion to alter or amend a judgment pursuant to I.R.C.P. 59(e), when it is filed within fourteen days of the entry of judgment and is premised solely upon information that was before the court at the time judgment was rendered. Dunlap v. State, 141 Idaho 50, 58, 106 P.3d 376, 384 (2004); Bias, 159 Idaho at 706, 365 P.3d at 1060; Schultz v. State, 155 Idaho 877, 883, 318 P.3d 646, 652 (Ct. App. 2013). Conversely, where a motion presents new information or 2 issues for the court to consider, treatment as a motion for relief from judgment under I.R.C.P. 60(b) is most appropriate. Bias, 159 Idaho at 706, 365 P.3d at 1060; Ross, 141 Idaho at 672, 115 P.3d at 763. In this case, Gorringe’s motion contained additional matters for the court to consider, principally an allegation of ineffective assistance of post-conviction counsel. Thus, the court should have considered the motion under I.R.C.P. 60(b). However, an appellate court may affirm a lower court’s decision on a legal theory different from the one applied by the lower court. Bias, 159 Idaho at 706, 365 P.3d at 1060; In re Estate of Bagley, 117 Idaho 1091, 1093, 793 P.2d 1263, 1265 (Ct. App. 1990). The appeal is timely as to the denial of the Rule 60(b) motion. Idaho Appellate Rule 14(a) requires parties to file their notice of appeal within forty-two days of the final judgment. The requirement of perfecting an appeal within the forty-two-day time period is jurisdictional. State v. Thomas, 146 Idaho 592, 594, 199 P.3d 769, 771 (2008); State v. Tucker, 103 Idaho 885, 888, 655 P.2d 92, 95 (Ct. App. 1982). A “[m]otion for relief under Rule 60(b) does not affect the finality of a judgment and hence does not toll the time for appeal from the final judgment.” First Sec. Bank v. Neibaur, 98 Idaho 598, 603, 570 P.2d 276, 281 (1977); see Idaho Appellate Rule 14(a) (excepting I.R.C.P. 60 motions from civil motions that toll the time for appeal from the final judgment). Here, the district court summarily dismissed Gorringe’s petition on May 19, 2015. On September 21, 2015, Gorringe filed his notice of appeal, 125 days after the district court summarily dismissed his petition. Because an I.R.C.P. 60(b) motion does not toll the time for appeal from a final judgment, this Court lacks appellate jurisdiction to consider an appeal from the order dismissing the petition. However, an order denying a motion for reconsideration is itself an appealable order. In this case, the district court entered its order denying the motion for reconsideration on July 14, 2015. Gorringe did not file his notice of appeal until September 21, 2015, which, as the State points out, is sixty-nine days later. However, on the day the district court entered its order denying the motion for reconsideration, the court also appointed counsel to assist Gorringe in establishing that the motion was timely filed, since the court had considered the motion untimely under I.R.C.P. 59(e). Nothing further having thereafter been filed, the district court entered its “Final Judgment” denying the motion for reconsideration on August 14, 2015. The notice of appeal was timely from that “Final Judgment.” Essentially, the court’s 3 initial order denying the motion for reconsideration was left open for receipt of additional evidence and therefore, not finally determined until the August 14, 2015, “Final Judgment.” Under the circumstances, Gorringe’s appeal from the denial of the motion for reconsideration is considered timely. However, Gorringe’s motion would have failed under I.R.C.P. 60(b). A party must demonstrate “unique and compelling circumstances” justifying relief before a court may grant an I.R.C.P. 60(b) motion. Dixon v. State, 157 Idaho 582, 587, 338 P.3d 561, 566 (Ct. App. 2014). Gorringe argues this case may present “the unique and compelling circumstances sufficient to justify relief under IRCP 60(b)(6).” Gorringe relies on Eby v. State, 148 Idaho 731, 228 P.3d 998 (2010) for this assertion. According to Gorringe, Eby establishes that ineffective assistance by post-conviction counsel constitutes a sufficient basis for granting relief under I.R.C.P. 60(b). Gorringe’s reliance on Eby is misplaced. In Eby, the petitioner’s post-conviction counsel failed to file any response to the court’s issuance of no less than five notices of its intention to dismiss his case for inactivity pursuant to I.R.C.P. 40(c). Eby, 148 Idaho at 733, 228 P.3d at 1000. The petitioner’s post-conviction attorney did not file any “amendments to [the petitioner’s] pro se petition” or “response to the state’s motion for summary dismissal.” Id. After the court dismissed the case under I.R.C.P. 40(c), petitioner’s fourth post-conviction attorney sought relief under I.R.C.P. 60(b), which the court denied. Eby, 148 Idaho at 734, 228 P.3d at 1001. On appeal, the Idaho Supreme Court reiterated that petitioners do not have a right to effective assistance of post-conviction counsel. Id. at 737, 228 P.3d at 1004. However, because post-conviction proceedings constitute “the only available proceeding for [a petitioner] to advance constitutional challenges to his conviction and sentence,” the Court held that relief may be warranted under I.R.C.P. 60(b) in the “unique and compelling circumstances” where a petitioner experiences “the complete absence of meaningful representation.” Eby, 148 Idaho at 737, 228 P.3d at 1004 (emphasis added). See generally Bias, 159 Idaho at 706, 365 P.3d at 1060. Here, Gorringe’s motion does not allege a complete absence of post-conviction representation, nor does the record support such a finding. Gorringe’s post-conviction counsel amended Gorringe’s pro se petition and responded to the State’s motion for summary dismissal at the hearing on the motion for summary dismissal. Unlike the petitioner in Eby, Gorringe did not experience a “complete absence of meaningful representation.” Eby, 148 Idaho at 737, 228 4 P.3d at 1004. Gorringe’s dissatisfaction with his post-conviction counsel’s performance does not constitute the unique and compelling circumstances required before a court may grant relief under I.R.C.P. 60(b). Because Gorringe’s motion would have failed under I.R.C.P. 60(b), we uphold the district court’s denial of his post-judgment motion. III. CONCLUSION Although the district court should have considered Gorringe’s motion under I.R.C.P. 60(b), it is without merit under I.R.C.P. 60(b). The district court’s order denying Gorringe’s motion to reconsider the summary dismissal of his petition for post-conviction relief is affirmed. Chief Judge MELANSON and Judge GUTIERREZ CONCUR. 5 

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT September 30, 2010 Elisabeth A. Shumaker Clerk of Court ROGER SCOTT BRYNER, Petitioner-Appellant, v. No. 10-4077 (D.C. No. 2:09-CV-00903-BSJ) JUDGE WILLIAM BARRETT; JUDGE (D. Utah) DENISE LINDBERG, Respondents-Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY* Before KELLY, EBEL and LUCERO, Circuit Judges. Roger Bryner seeks a Certificate of Appealability (COA) in order to appeal the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In his petition, Bryner complained of the following contempt order issued in Utah state court: IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that petitioner, Roger Bryner, is held in contempt of this Court, and he is sentenced to thirty (30) days in the Salt Lake County Adult Detention Center, with twenty-eight (28) days suspended upon the condition that he conduct himself in a civil manner * This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.  in compliance with the standards of professionalism and civility while representing himself pro se in this case or any case filed in this District. This includes conduct in court or out of court. (App. at 19.) In his habeas petition, Bryner argued that this order was an unconstitutional prior restraint on speech. The district court dismissed Bryner’s petition because he was not in custody as required by § 2254. Then Bryner filed a motion for a COA in the district court, which was also denied. Now Bryner seeks a COA from this Court. We DENY Bryner’s motion for a COA and DISMISS this appeal. Under 28 U.S.C. § 2253(c)(1)(A), Bryner may only obtain review of the district court’s dismissal of his § 2254 petition if this Court elects to grant a COA. The Court will grant a COA “only if [he] has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Bryner must make out such a showing by demonstrating “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and . . . whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). After fully reviewing the record and Bryner’s arguments, we hold that the district court correctly disposed of Bryner’s claim in his petition. As the district court pointed out, § 2254 requires that the petitioner be “in custody” under the challenged conviction or sentence at the time his petition is filed. Maleng v. Cook, 490 U.S. 488, 490–91 (1989). Bryner is not in custody pursuant to the judgment of the Utah state court within the meaning of 28 U.S.C. § 2254. In his application to this Court, other than making the same bare assertion that he is in custody that he made in the district court, Bryner points 2 to no evidence indicating that he is in custody within the meaning of this statute. He is not on probation, is not under supervision, and is not on parole. Thus, jurists of reason would not find Bryner’s claim of the denial of a constitutional right debatable, and jurists of reason could not disagree over the correctness of the district court’s dismissal of Bryner’s § 2254 petition. Therefore, we DENY Bryner’s request for a COA and DISMISS this appeal. ENTERED FOR THE COURT David M. Ebel Circuit Judge 3 

165 F.3d 38 Watsonv.Goodwill Industries** NO. 97-2663 United States Court of Appeals,Eleventh Circuit. November 30, 1998 1 Appeal From: M.D.Fla. , No.94-01318-CIV-ORL-19 2 Affirmed. ** Local Rule 36 case

254 Cal.App.2d 428 (1967) THE PEOPLE, Plaintiff and Respondent, v. VIOLA BACA, Defendant and Appellant. Crim. No. 12326. California Court of Appeals. Second Dist., Div. Four. Sept. 18, 1967. Frank C. Morales for Defendant and Appellant. Thomas C. Lynch, Attorney General, Doris H. Maier, Assistant Attorney General, Edward A. Hinz, Jr., and Anthony S. Dick, Deputy Attorneys General, for Plaintiff and Respondent. KINGSLEY, J. Defendant was arrested as a fugitive and for possession of heroin for sale. A preliminary examination *429 was held; an information was filed accusing defendant of violating 11500.5 of the Health and Safety Code; a motion under Penal Code section 995 was made and denied; defendant pled not guilty. Defendant personally, and all counsel, waived a jury trial and the cause was submitted on the testimony contained in transcripts of the proceedings at the preliminary hearing, together with exhibits there received. Defendant was found guilty; motion for new trial was argued and denied; probation was denied; defendant was sentenced for the term prescribed by law. Defendant appeals. State Narcotics Agent Manuel Diaz received information from the fugitive detail of the Los Angeles sheriff's office that defendant failed to appear in a superior court trial and that a warrant had been issued for her arrest. Agent Diaz also had personal knowledge that defendant failed to appear and that a bench warrant was issued. He also received information from a woman named Terry Camarado that defendant moved from Stillwell's Motel to a friend's residence at 2707 Pomeroy, apartment number 18. Sergeant Sanchez and McCarville, together with Agent Diaz, went to the new address, talked to the manager, went to apartment 18, knocked on the door, and heard noises but no answer. The agent got the key from the manager and Sergeant Sanchez and McCarville entered with the key. Agent Diaz testified as to the circumstances of the ensuing arrest and search as follows: "I proceeded to the bathroom and behind a door in the bathroom I observed the defendant. I immediately placed the defendant under arrest as a fugitive. I told her to come out from behind the door. I then went behind the door, and on the floor I observed a piece of paper containing numerous white objects. I examined the objects, and they contained 11 condoms, each containing a white powder resembling heroin. I then arrested the defendant for possession of heroin with intent to sell, advised her of her constitutional rights; she had a right to an attorney, a right to remain silent, and anything she said could be used against her, and I asked her if she understood, and she said, 'Yes.' " On cross-examination, the officer clarified the sequence of events, as follows: "Q. Upon gaining entry into the apartment, you say you first observed the defendant in the bathroom? A. Yes." "Q. You could see her in the bathroom? A. Yes." "Q. And you asked her to come out of the bathroom? A. Yes. *430" "Q. She did not come out of the bathroom? A. Pardon?" "Q. She did not come out of the bathooom? A. Yes, she did." "Q. She did come out of the bathroom? A. Yes." "Q. And the bathroom exits into what room? A. A bedroom." "Q. Is that where you placed her under arrest? A. Yes." "Q. Then you went into the bathroom yourself? A. Yes." "Q. Then you found the items that you have just described, which are marked for identification as People's 1 collectively? A. Yes." Defendant raises only two issues: (1) Defendant asserts that the officers had no reasonable or probable cause to believe defendant was in apartment 18 and therefore the entry and search were unlawful. [1a] (2) Defendant asserts that the search of the bathroom was not incidental to defendant's arrest and that the evidence obtained was a product of an unlawful search and seizure and inadmissible. Defendant's argument that the search of the bathroom was improper is well taken. [2a] When an arrest is lawful, it is proper to make a reasonable search, and evidence found is admissible, even though it relates to a crime that is different from the one for which the arrest is made. (See People v. Reed (1962) 202 Cal.App.2d 575 [20 Cal.Rptr. 911], and People v. Nebbitt (1960) 183 Cal.App.2d 452 [7 Cal.Rptr. 8].) In People v. Kraps (1965) 238 Cal.App.2d 675 [48 Cal.Rptr. 89], it was held that a search which was not connected with an offense stated in an outstanding traffic warrant against defendant did not render illegal the seizure of marijuana from defendant's pocket, since the police are entitled to make a search for weapons. (Also see People v. Stewart (1961) 189 Cal.App.2d 176 [10 Cal.Rptr. 879].) However, "an exploratory search, using one alleged crime as a subterfuge, is illegal." (Witkin, Cal. Evidence (2d ed. 1966) 113, p. 112.) In the case of People v. Mills (1957) 148 Cal.App.2d 392, 398 [306 P.2d 1005], Mills was arrested for violation of the Corporate Securities Act. The officers already had convincing proof of his guilt when they searched and found evidence of other crimes. The appellate court held that a search may be exercised to discover evidence of the particular crime for which the arrest is made but when the bounds of a reasonable search have been exceeded, as where a search is made for evidence of crimes other than the one for which the arrest is *431 made, the evidence wrongfully seized and its derivative may not be used. [1b] In the case at bench defendant was being arrested as a fugitive. It is clear that the search of the bathroom could not have been made for the purpose of providing evidence of guilt of that crime. The officers had no legitimate purpose other than to arrest her as a fugitive and pursuant to the outstanding warrant. Once they had discovered her, and she had come out of the bathroom, their purpose had been fulfilled. There was no need to search further once the object of the search had been found. [2b] The People correctly argue that the mere looking at that which is in plain sight is not a search. (People v. Fitch (1961) 189 Cal.App.2d 398 [11 Cal.Rptr. 273]; People v. Hurst (1960) 183 Cal.App.2d 379, 386 [6 Cal.Rptr. 483].) [1c] However, the testimony of Agent Diaz, quoted in detail above, indicates that the narcotics were not, and could not have been, seen until the officer entered the bathroom after defendant had left that room and surrendered. The "plain sight" rule has no application on these facts. Since the judgment must be reversed for that reason, we need not consider defendant's alternative argument that the officers had no reasonable grounds for entering the apartment at all. The judgment is reversed. Files, P. J., and Jefferson, J., concurred.

879 F.2d 165 BYWATER NEIGHBORHOOD ASSOCIATION, Plaintiff-Appellant,v.William J. TRICARICO, in his capacity as Secretary, FederalCommunications Commission, Crescent CityCommunications Company, Inc., ofDelaware, and Notel, Inc.,Defendants-Appellees. No. 88-3901 Summary Calendar.United States Court of Appeals, Fifth Circuit.Aug. 8, 1989. James G. Derbes, New Orleans, La., for plaintiff-appellant. M. Alice Thurston, David C. Shilton, John P. Greenspan, Nancy Stanley, F.C.C., Washington, D.C., John Volz, Stephen Mark Gallinghouse, U.S. Attys., Mark Gallinghouse, Asst. U.S. Atty., New Orleans, La., for Tricarico (Federal). William Wright, Jr., New Orleans, La., for Notel, Inc. Paul L. Zimmering, New Orleans, La., for Crescent City. Appeal from the United States District Court for the Eastern District of Louisiana. Before POLITZ, KING, and SMITH, Circuit Judges. JERRY E. SMITH, Circuit Judge: 1 The Bywater Neighborhood Association ("Bywater") seeks the removal of two structures it considers inconsistent with the character of its neighborhood, a national historic district. The two structures are a 200-foot television microwave tower, owned and built by Crescent City Communications Company, Inc. ("Crescent City"), and a satellite earth station, owned and built by Notel, Inc., ('Notel'), a firm related to Crescent City. The Federal Communications Commission ("FCC"), together with local authorities, is the regulatory body with authority to issue licenses for the operation of both facilities.1 The FCC has already issued a license for the satellite earth facility, now constructed and operational. However, it has "deferred" action on the operating license for the television transmitter, although the tower itself has been built under the "one-step" licensing procedure. 2 The gravamen of Bywater's complaint is that the FCC failed to adhere to the dictates of the National Historic Preservation Act ("NHPA") and to its own regulations, which require it to consult with the NHPA Advisory Council with regard to the potential effect the structures might have upon the Bywater National Historic District. Bywater contends that the FCC's failure in this regard was, in part, the result of Crescent City and Notel's having withheld important facts concerning the area in which they were to build. Bywater brought this suit against the FCC, Crescent City, and Notel under the Administrative Procedure Act ("APA"),2 the Declaratory Judgment Act,3 the National Historic Preservation Act,4 and the Mandamus and Venue Act.5 The district court dismissed the suit for want of subject-matter jurisdiction. We affirm. I. 3 Bywater correctly observes that the NHPA expressly permits private suits outside the APA review process; it points to 16 U.S.C. Sec. 470w-4, which provides that attorneys' fees, expert witness fees, and other costs may be awarded.6 In Vieux Carre Property Owners, Residents & Assocs., Inc. v. Brown, 875 F.2d 453, 457-58 (5th Cir.1989), we held that section 470w-4 does in fact create a private right of action that can be brought by any interested person, but only against the agency, since the NHPA, by its terms, can be violated only by an agency.7 4 Bywater seeks to compel the FCC's compliance with the following NHPA provision: 5 [T]he head of any Federal ... agency having authority to license any undertaking shall, ... prior to the issuance of any license, ... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment with regard to such undertaking. 6 16 U.S.C. Sec. 470f. 7 Here, however, it is the FCC which Bywater accuses of neglecting its NHPA duties, and in suits against that agency, special rules apply. Those rules are found in 28 U.S.C. Sec. 23428 and 47 U.S.C. Sec. 402(b),9 which vest exclusive jurisdiction over appeals from the FCC's final orders in the respective circuit courts of appeals10 and, in the case of licensing decisions, in the District of Columbia Circuit alone.11 The Supreme Court has declared that "[l]itigants may not evade these provisions by requesting the District Court to enjoin action that is the outcome of the agency's order." FCC v. ITT World Communications, Inc., 466 U.S. 463, 468, 104 S.Ct. 1936, 1939, 80 L.Ed.2d 480 (1984) (citing Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 69, 91 S.Ct. 203, 208, 27 L.Ed.2d 203 (1970)). Yet that is precisely the purpose of Bywater's suit. The association's plea before this court is that we "maintain District Court jurisdiction over both facilities so that, in the event that the FCC denies and/or revokes permits for their operation, their removal from the Historic District can be assured." 8 In ITT World Communications, ITT brought its claim against the FCC under the APA, 5 U.S.C. Sec. 703,12 arguing that the court of appeals was an inadequate forum because the record had not been fully developed. The Court, rejecting that argument, observed that the court of appeals could remedy any deficiencies in the record with a remand to the agency. 466 U.S. at 469. Hence, the Court declared, the APA was not a proper vehicle for circumventing the special statutory review process. 9 That is not the last word for this case, however, since the private right of action arising under the NHPA might be an alternative basis for Bywater's suit in district court. Thus, some tension exists between section 470w-4, as construed in Vieux Carre, and the specific statutory provisions governing appeals of FCC decisions. We resolve that tension in favor of Congress's specific and obvious intent to restrict to the circuit courts any appeals from rulings of the FCC. Though we have construed section 470w-4 to create a private right of action that may be brought in "any U.S. District Court," Vieux Carre, 875 F.2d at 458, we find no intent in the legislative history of that section to override the special provisions concerning the FCC.13 We follow the lead of the court in City of Rochester v. Bond, 603 F.2d 927, 931 (D.C.Cir.1979), in recognizing that 10 Congress, acting within its constitutional powers, may freely choose the court in which judicial review may occur.... If ... there exists a special statutory review procedure, it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies. 11 Indeed, any doubts we might have about Congress's intent in these matters is resolved in the APA, which states, "The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute." 5 U.S.C. Sec. 703. 12 For similar reasons, we must also reject the Mandamus and Venue Act and the Declaratory Judgment Act as independent predicates for district court jurisdiction in this case.14 Aside from our adherence to the general principle that Congress's exclusive and specific review procedure should be followed, we observe that the Mandamus and Venue Act also fails to confer jurisdiction in that "it is an extraordinary remedy that is not available when review by other means is possible." Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 78 (D.C.Cir.1984) (citing Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976)). Likewise, where Congress has created a specific mode of judicial review of administrative orders, declaratory relief under 28 U.S.C. Sec. 2201 is not available to those who have not pursued that remedy. See American President Lines, Ltd. v. Federal Maritime Bd., 235 F.2d 18 (D.C.Cir.1956). Our courts "recognized early in the development of administrative agencies that coordination between traditional judicial machinery and these agencies was necessary if consistent and coherent policy were to emerge." Port of Boston Marine Terminal Ass'n, 400 U.S. at 68, 91 S.Ct. at 208 (citing Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907)).15 II. 13 For specified litigants appealing FCC orders, courts have interpreted 47 U.S.C. Sec. 402(b) to allow venue only in the District of Columbia Circuit. See FCC v. Columbia Broadcasting Sys., 311 U.S. 132, 136, 61 S.Ct. 152, 153, 85 L.Ed. 87 (1940); Campos v. FCC, 650 F.2d 890, 892 (7th Cir.1981). Bywater's complaint falls within category (6) of section 402(b), which provides that appeals may be taken before the District of Columbia Circuit "[b]y any other person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying any application described in paragraphs (1)-(4) of this subsection." In Bywater's prayer to this court, it admits that it would be "premature," because Bywater has not yet exhausted its administrative remedies, for this court or the district court a quo to act until the FCC has issued an order with respect to Crescent City's application and a final order, after entertaining Bywater's petition to revoke, with respect to Notel's license. Instead, Bywater asks that we "maintain jurisdiction" until these events have occurred. But if and when those events occur, Bywater's complaint will fall squarely within section 402(b)(6), and venue will lie only in the District of Columbia Circuit. Hence, any order from our court requiring the district court to "preserve" jurisdiction pending issuance of the FCC's final orders would be futile. The district court therefore properly dismissed Bywater's suit. III. 14 The district court correctly determined that it was without jurisdiction to hear this complaint against the FCC. When the FCC's final orders have been issued, Bywater must follow the path Congress has laid out for judicial review of those decisions. We note that our ruling should in no way be read as a comment on the merits of Bywater's claims against the FCC. 15 The judgment of the district court is AFFIRMED. 1 The FCC explains that it also requires a license for the construction of certain types of facilities. However, for both facilities at issue here, "streamlined" application processes were available: Notel was able to submit one application for both the construction and operation of the satellite earth station. For the television microwave tower, Crescent City took advantage of an available "one-step" process under which there is no requirement that the applicant receive a construction permit, although the applicant cannot operate the facility without a license. Applicants that, like Crescent City, use this procedure take the risk that the license will be denied and the structure thereby will become useless for transmitting purposes 2 5 U.S.C. Sec. 701 et seq 3 28 U.S.C. Sec. 2201 et seq 4 16 U.S.C. Sec. 470 et seq 5 28 U.S.C. Sec. 1361 6 Section 470w-4 reads, in its entirety, In any civil action brought in any United States district court by any interested person to enforce the provisions of this subchapter, if such person substantially prevails in such action, the court may award attorneys' fees, expert witness fees, and other costs of participating in such action, as the court deems reasonable. 7 Hence, were it possible for Bywater to go forward with this action, the private defendants, Crescent City and Notel, would be dismissed 8 Section 2342 provides, The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of-- (1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47; .... 9 Section 402(b) provides: * * * (b) Appeals may be taken from decisions and orders of the [FCC] to the United States Court of Appeals for the District of Columbia in any of the following cases: (1) By any applicant for a construction permit or station license, whose application is denied by the Commission. (2) By any applicant for the renewal or modification of any such instrument of authorization whose application is denied by the Commission. (3) By any party to an application for authority to transfer, assign, or dispose of any such instrument of authorization, or any rights thereunder, whose application is denied by the Commission. (4) By any applicant for the permit required by section 325 of this title whose application has been denied by the Commission, or by any permittee under said section whose permit has been revoked by the Commission. * * * (6) By any other person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying any application described in paragraphs (1)-(4) of this subsection. 10 See South Cent. Bell Tel. Co. v. Louisiana Pub. Serv. Comm'n, 744 F.2d 1107, 1114 (5th Cir.1984) ("the exclusive method for obtaining judicial review of FCC action is a direct appeal to the court of appeals pursuant to [the applicable statute]") 11 See infra Part II 12 Section 703 provides as follows: The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement. 13 The House Report states simply, The intent is to ensure that property owners, non-profit organizations and interested individuals who may otherwise lack the means for court action be awarded reasonable costs for actions taken under this Act. The intent is not to award costs for frivolous suits against Federal agencies. H.R. No. 1457, 96th Cong., 2d Sess. 46 (1980), reprinted in 1980 U.S.Code Cong. & Ad. News 6378, 6409. 14 Bywater would also have us premise jurisdiction upon the old workhorse, 28 U.S.C. Sec. 1331. But Congress may, as 47 U.S.C. Sec. 402(a) and (b) indicate, narrow that jurisdiction; to the extent that Bywater argues that the district court could retain "residual federal question jurisdiction" on the ground that the agency's violation might be found a patent abuse of its authority or a manifest infringement of a substantive right, we must reject that jurisdictional basis also. Nothing precludes Bywater from obtaining immediate remedies from the District of Columbia Circuit. See Tennessee Dep't of Employment Sec. v. Secretary of Labor, 801 F.2d 170, 175 n. 8 (6th Cir.1986) 15 We note that by such reasoning, we do not thereby defeat any private right of action that may exist against other agencies not in compliance with the NHPA. Nothing in our opinion should be read as precluding Bywater, or similar associations aggrieved by an agency's failure to follow the NHPA's procedures, from bringing suit against that agency in the district court. See, e.g., Vieux Carre (suit against Army Corps of Engineers); Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 278-82 (3d Cir.1983) (action against Department of Housing and Urban Development). But where, as here, Congress has established exclusive procedures for judicial review of a particular agency's actions, we are bound to follow those dictates. See Whitney Nat'l Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965)

473 F.Supp. 917 (1979) HOSPITAL ASSOCIATION OF NEW YORK STATE, INC., Misericordia Hospital Medical Center, Buffalo General Hospital, the Genesee Hospital, and the Mount Sinai Hospital on behalf of themselves and all other nonprofit hospitals which are members of the Hospital Association of New York State, Inc. and which are reimbursed for Medicaid services rendered to hospital patients, Plaintiffs, v. Philip L. TOIA, as Commissioner of Social Services of the State of New York, Robert P. Whalen, as Commissioner of Health of the State of New York, Peter Goldmark, as Director of the Budget of the State of New York, Hugh L. Carey, as Governor of the State of New York, and David Mathews, as Secretary of the U. S. Department of Health, Education & Welfare, Defendants. No. 76 Civ. 2027. United States District Court, S. D. New York. April 25, 1979. *918 *919 Proskauer, Rose, Goetz & Mendelsohn, New York City, for plaintiffs; Jacob Imberman, Robert M. Kaufman, Steven S. Miller, Susan C. Rosenfeld, M. William Scherer, New York City, of counsel. Rosenman, Colin, Freund, Lewis & Cohen, New York City, for the New York City Health and Hospitals Corp.; Peter F. Nadel, New York City, of counsel. Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, for State defendants; Covington & Burling, Washington, D. C., of counsel. Robert B. Fiske, Jr., U. S. Atty., S. D. of New York, New York City, for U. S. Dept. of Health, Ed. and Welfare; John M. O'Connor, Asst. U. S. Atty., New York City, of counsel. LASKER, District Judge. One of the results of the explosion of medical knowledge in the past century has been a radical increase in the expenditure of resources for cure, prevention and research. At least in part because increasingly sophisticated medical processes and techniques are more costly, and because this is an age of developing social programs, a wide variety of regulated plans now exist to finance the care of the sick. In some countries the plans provide comprehensive care of all sickness regardless of the age or economic circumstances of the patient. In this country, the two governmentally financed plans are Medicare (Pub.L. 89-97, Title I, July 30, 1965, which provides health insurance for the aged) and Medicaid (42 U.S.C. § 1396 et seq.) intended to assist the medically indigent, who are defined by statute as "families with dependent children and . . . aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services." This case deals with significant questions arising under the Medicaid statute. To put the issues in perspective a review of the checkered history of the case is necessary. THE BACKGROUND Congress enacted the Medicaid statute in 1966 as Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.). The program is administered by the states pursuant to statute and regulations of the federal Department *920 of Health, Education and Welfare (HEW). Under § 1396a(a)(13)(D) providers of inpatient hospital services, such as the plaintiffs here, are entitled to reimbursement by the states for the "reasonable cost" of their services, "as determined in accordance with methods and standards . . . reviewed and approved by the Secretary and . . . included in the [state Medicaid plan]." The ultimate cost of Medicaid reimbursement to hospitals is shared equally between the state and the federal government. Since 1970, New York State has used a prospective methodology to compute the reimbursable "reasonable costs" of hospitals. The system attempts to predict costs for a forthcoming year and is part of the State Medicaid plan. Normally, at the end of each calendar year, the State publishes reimbursement rates for each hospital group[1] for the forthcoming year. However, at the end of 1975, faced with rising hospital costs and its own financial instability, New York took action, by issuance of interim rates which in essence froze the 1975 rates. In May, 1976, the plaintiffs, a class consisting of 270 voluntary and public hospitals in New York State, brought this suit claiming that the freeze was illegal because it 1) amended the State plan without approval by the Secretary of HEW as required by 42 U.S.C. § 1396a(a)(13)(D) and 2) deprived them of reimbursement of their "reasonable costs." In July, 1976, the State promulgated a revised formula for determining the 1976 rates. The revision included significant changes in the earlier method of computation. In particular, 1) it lowered the ceiling on reimbursable costs for "routine" inpatient services from 110% to 100% of the average of the costs for the group of hospitals to which the hospital being reimbursed belonged; 2) for the first time it imposed a ceiling (of 100% of average) on reimbursement for "ancillary" inpatient costs; and 3) it reduced to 90% the earlier 100% reimbursement of salaries of interns and residents. On July 16, 1976, the plaintiffs amended their complaint to specify objections to the new formula and moved to restrain the defendants from implementing the amendments until they were approved by HEW. An injunction granting that relief was issued August 2, 1976. * * * * * * Effective January 1, 1976, Congress had required states participating in the Medicaid program to consent to suits in federal court by hospitals which claimed that the state was not in compliance with the reimbursement requirements of the statute (see 42 U.S.C. § 1396a(g)). Pursuant to this statute, but under protest, New York had executed a consent to suit. On October 18, 1976, the mandatory waiver of immunity provisions were repealed "effective January 1, 1976." (Pub.L. 95-452) Upon the enactment of the repealing statute, the State moved, under the Eleventh Amendment, to dismiss the suit as to itself. The motion was granted by this court, Hospital Association of New York State, Inc. v. Toia, 435 F.Supp. 819 (S.D.N.Y.1977) aff'd, 577 F.2d 790 (2d Cir. 1978). The Secretary of HEW concurrently moved to dismiss on the grounds of mootness but that motion was denied since HEW's role in the approval process was found to be "capable of repetition, yet evading review," within the rule of Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); and Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). Governing Law 42 U.S.C. § 1396a(a)(13) provides that: "A State plan for Medical assistance must . . . provide . . . for payment of the reasonable cost of inpatient hospital services . . . in accordance with methods and standards . . . developed by the State and reviewed and approved by the Secretary . . ." *921 The Secretary has specified criteria by which the approvability of a state plan is to be determined: ". . . criteria for approval will include: (a) Incentives for efficiency and economy; (b) Reimbursement on a reasonable basis: . . . (d) Assurance of adequate participation of hospitals and availability of hospitals services of high quality to title XIX recipients . . ." * * * * * * "(a) State plan requirements: A State plan for medical assistance under title XIX of the Social Security Act must: . . . (2) Provide for payment of the reasonable cost of inpatient hospital services as determined in accordance with methods and standards, consistent with the provisions of section 1122 of the Social Security Act for participating States which shall be developed by the State . ." (45 C.F.R. 250.30 (1976). The hospitals contend that HEW's review and approval of the State plan were arbitrary and capricious in giving inadequate attention to the statutory and regulatory criteria for approval and that HEW's conclusions that the criteria were satisfied were based on clear errors of judgment. See Hospital Association of New York State, Inc. v. Toia, 438 F.Supp. 866 at 879 et seq. (S.D.N.Y.1977). To understand how the regulatory criteria were applied in reviewing the New York State system, it is necessary to describe how the State computed reimbursement rates in 1976, and how HEW went about reviewing the validity of the plan. How the Plan Works The prospective reimbursement system works in the following manner.[2] In the "base" year, which is two years prior to the payment, or "rate," year, the State compiles the actual inpatient costs for all of its Medicaid hospitals. On the basis of this compilation, the State computes allowable costs (described below), and these are used to determine how much hospitals will be paid at the beginning of the rate year. The first step in the derivation of allowable costs is the computation of the average costs (routine and ancillary) that each hospital incurs in treating a Medicaid patient. To obtain this average, the state divides each hospital's total routine costs by its total patient days, and divides each hospital's total ancillary costs[3] by total patient discharges. Every hospital's average cost is then compared with the average cost of other hospitals in its peer group.[4] The comparison yields an average for the entire group, the "group average" (sometimes referred to as the "ceiling"). After the disallowance of costs in excess of the group average, if any, each hospital's allowable costs (routine and ancillary) are, with some additions, "trended forward" to compensate for inflation, and, with the addition of allowable capital costs and the conversion of the total costs to per diem amounts, become the hospital's Medicaid reimbursement rate in the rate year.[5] As stated above, in 1976 the amount of the prospective ceiling was set exactly at *922 the average. That is, every hospital was to receive no more than 100% of the trended, base year group average. This marked a substantial change over 1975, when hospitals' rate year maximum reimbursement was set at 110% of their peer group's average per diem cost. Furthermore, under the 1976 plan, the 100% ceiling on prospective payments was applied to both routine and ancillary costs. In 1975, only routine costs had been subjected to the ceiling. Also, the 1976 plan reduced reimbursement of interns' and residents' salaries from 100% to 90%. Finally, the 1976 plan contained an expanded appeals provision,[6] which permitted hospitals to recoup, upon a proper showing, the costs that were disallowed as being in excess of the ceiling. HEW Review Process and Rationale of Approval Pursuant to its statutory and regulatory obligations, HEW reviewed and approved the 1976 amendments (although the approval was issued after they had been put into effect). The review process began shortly after HEW received the amendments, in December, 1975. This review consisted of analysis by the HEW regional staff, as well as correspondence and meetings with both the State and HEW's central office in Washington, D.C. Moreover, although there was no statutory or regulatory obligation to do so, HEW kept the Hospital Association of the State of New York, Inc. ("HANYS") abreast of the amendments being proposed by the State, and solicited and received from HANYS detailed statements, as well as live presentations, of HANYS' views with regard to the proposed changes. In its review of the 1976 amendments, HEW focused on the projected "impact" of the lowered ceilings, which, as indicated above, limited prospective reimbursement of routine and ancillary Medicaid costs to 100% of the group average and disallowed 10% of the salaries of interns and residents. In an array of tables (PX-1 at 86-120, 162-205, 978-1061, especially, 115-120, 999-1000, 1008-12, 1058-61) the State provided statistics that variously represented the effect of the lowered ceilings by showing: the absolute difference between each hospital's Medicaid costs and the Medicaid ceilings, (the difference is known as the Medicaid Disallowance); that difference expressed as a percentage of the hospital's total inpatient cost,[7] and a comparison of the 1975 and 1976 Medicaid reimbursement rates. What the State's tables purported to show was that, when expressed in percentage terms, the impact of the lowered ceilings would, for approximately 90% of the hospitals, be a Medicaid Disallowance of between 0 and 2% of total inpatient cost.[8] (PX-1 at 116) For HEW, this statistic was crucial: there is no dispute that the agency's conclusion that the plan measured up to the statutory and regulatory criteria[9] was based on its view that the impact of the 100% average ceiling was minimal[10] and that hospitals that were dissatisfied with their rate of reimbursement could appeal. Seymour Budoff, an Associate Regional Commissioner at the time of approval, broadly summarized HEW's rationale: ". . . to the extent [that] the hospital had costs above the peer group average which it could justify, it would get *923 those costs reimbursed [on appeal] and to the extent that the costs . . . were above the group average . . . and were inefficiently produced . . . the hospital through prudent management would reduce those costs and not have a deficit . . . [I]n the aggregate . . . [the] impact was about two percent of total inpatient cost, which seemed like an attainable goal for the hospitals to reach." (Tr. 2688-89). In somewhat more detail, HEW's conclusion was reached in the following manner. First, with regard to its decision that the 1976 plan satisfied the reasonable cost criterion, HEW viewed the amendments as giving rise to a two-phased reimbursement system. The first phase was the prospective one, in which, at the beginning of the rate year, each hospital would receive reimbursement on the basis of 100% of the base year group average. HEW decided that a plan that, at worst, inflicted a disallowance of 2% of total inpatient cost provided reimbursement on a reasonable basis. This decision was based on a number of factors. First, to the extent that the disallowance represented a penalty on costs that exceeded a hospital's peer group's average cost, HEW viewed the disallowance as a prohibition of inefficient costs (Tr. 762-63, 765, 2261, 2688-89; see also, id. at 2276, 2311, 2365) which, under the Medicaid statute and regulations, are not subject to reimbursement. HEW considered the conclusion that above-ceiling costs were inefficient to be supported by its judgment that there was universal inefficiency within the hospital industry (Tr. 385-89, 2307, 2697-99; see also, id. at 2275). Moreover, HEW concluded that whatever the reason a hospital's costs exceeded the ceiling, the State plan provided a safety valve for those hospitals for which imposition of the 100% average resulted in reimbursement of less than the reasonable cost of their services: they could appeal. In HEW's judgment, the State plan's appeals process gave all hospitals an opportunity to justify their above-average costs; upon a showing that these costs were not the result of inefficiency, hospitals would recoup the amount of the disallowance. HEW believed that it was fair to remit the hospitals to the appeals procedure to recover what, for more than 90% of the hospitals, was a relatively small sum. As for the requirement that the State plan provide for "adequate participation of hospitals" and the availability of "services of high quality," HEW concluded that since, participation and quality of care had been excellent, under the prior plan, the minimal impact would neither drive hospitals away from the Medicaid program nor force a significant reduction in the quality of service. With regard to incentives for efficiency and economy, HEW concluded that once it received notice of its projected, rate year payments and its disallowance (if any), a hospital would institute measures to trim unnecessary "fat" from its costs. Plaintiffs' Attack on HEW's approval In particular, the hospitals challenge (1) HEW's reliance on the State's "impact tables," which, they claim, were generated by an incorrect formula and (2) HEW's approval of the appeals system, which is said to have been inchoate at the time the State presented it for agency review. Other objections to HEW's approval are that: to the extent that the agency's approval was based on a presumption of industry-wide inefficiency, the presumption was both impermissible and unfounded, both the methods used to construct peer groups (from which the per diem group average was computed) and the statistical formula for determining the group average were faulty; the impact tables excluded cost data from hospitals belonging to the New York City Health and Hospitals Corporation ("HHC"), the cut in reimbursement of interns' and residents' salaries was thoughtlessly made and thoughtlessly endorsed, use of the 100% ceiling would, over a period of years, create a continuously declining rate of reimbursement, and the State's failure to submit the plan to the State medical advisory committee *924 ("MAC") prior to presenting it to HEW should have warranted HEW's rejection of the amendments.[11] The Legal Framework of the Case Before proceeding to findings with respect to plaintiffs' claims, it is necessary to define the legal framework within which the findings are made, and, to this end, a certain amount of procedural history must be recited. The hospitals' pleadings in this action contained allegations against both the State and HEW. Against the State, it was claimed that the 1976 plan was substantively inadequate; and, as has been discussed above, the charge against HEW was that its review and approval procedures had been faulty. The case against the State was ultimately dismissed as moot. Memorandum opinion of November 17, 1978, aff'd, Hospital Association of New York State, Inc. v. Toia, 577 F.2d 790 (2d Cir. 1978). The case against HEW was retained: against the agency's argument that the Secretary's approval was a matter committed to agency discretion (and therefore, judicially unreviewable), we ruled that the manner in which the Secretary reached the decision to approve was a proper subject for judicial review, Hospital Association of New York State, Inc. v. Toia, supra, 438 F.Supp. at 868-69, and that the approval methods were capable of repetition but evading review. Southern Pacific Terminal Company v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). The decision that the manner of approval was judicially reviewable was based primarily on the existence of agency regulations, 45 C.F.R. 250.30(a)(2)(ii), that listed explicit criteria[12] to be considered in the approval process; it was proper for the court to determine whether the Secretary had considered the criteria (and whether his consideration was adequate) in reaching his decision to approve the plan. The parties were informed, both orally (at numerous pretrial conferences) and by way of opinion issued in connection with plaintiffs' motion for summary judgment and defendant's motion to dismiss, that in the case against HEW, the merits of the *925 1976 plan—long since altered—and the correctness of the Secretary's conclusions about that plan were not at issue:[13] the sole issue which remained for trial was whether HEW had properly discharged its statutory and regulatory obligations in reaching its conclusions. This issue whether the Secretary had properly considered the relevant criteria was designated one of "procedure," and the designation was intended to underscore our refusal to review the merits of the State plan. To a certain extent, both parties have misapprehended our earlier rulings on this point. In its post-trial brief, the government argues that the only question before the court is: "the narrow procedural issue: whether HEW violated the Administrative Procedure Act or the Due Process clause by failing to adhere to a required procedural mandate, such as opportunity to be heard, etc." (HEW Brief at 190)[14] The government goes on to argue that since the Secretary's approval constitutes informal decision making as opposed to adjudication or rule making (See 5 U.S.C. §§ 553, 554, 556, 557), the Administrative Procedure Act does not impose any procedural standards on the Secretary. Neither, claims the government, do the Medicaid Act or the regulations thereunder. Finally, HEW argues that the due process clause of the Fifth Amendment does not apply (HEW Brief at 218, citing Langevin v. Chenango Court, 447 F.2d 296, 300-302 (2d Cir. 1971)) and that in any event, the hospitals did not press the due process claim at trial.[15] Satisfied that all relevant procedures were complied with and pointing out that the court may not impose additional procedures and then sanction the agency for not having followed them, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978),[16] the government urges that there is no basis for overturning the Secretary's actions. In sum, HEW's argument is as follows: 1. This court earlier ruled that the only issue against HEW was a narrow one of procedural due process. 2. No procedural due process claims may be asserted against the Secretary because none of the applicable statutes or regulations imposes any procedural due process requirements upon the Secretary's approval. 3. Vermont Yankee precludes imposition by the court of any additional procedural requirements. Despite its internal consistency, the government's argument on this point is *926 incorrect because it ignores what was specified as the single remaining issue in the case (in which HEW is the sole remaining defendant): whether the Secretary's approval was based on due consideration of the criteria established by the C.F.R. Accordingly, the question for decision is whether the Secretary's actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).[17] Judged by this standard, the issue is whether the agency acted without taking account of all "relevant factors, and whether there has been a clear error of judgment," Citizens to Preserve Overton Park, Inc. v. Volpe, infra, 401 U.S. at 416, 91 S.Ct. at 824; United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 251 (2d Cir. 1977); Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 630-31 (2d Cir. 1976); American Meat Institute v. Environmental Protection Agency, 526 F.2d 442, 453 (7th Cir. 1975); Hanley v. Mitchell, 460 F.2d 640, 648 (2d Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972), or whether it acted on the basis of scant consideration. See Hempstead Bank v. Smith, 540 F.2d 57, 60 (2d Cir. 1976); Chelsea Neighborhood Associations v. United States Postal Service, 516 F.2d 378, 387 n. 23 (2d Cir. 1975).[18] For their part, plaintiffs largely ignored, both at trial and in the post-trial briefs, the question whether the steps taken by HEW conformed to the requirements of the statute and the regulations. Instead, the merits of the State plan became the focus, with HEW's action a shell under which an attack on the merits could be made. Thus, the plaintiffs argued and attempted to prove that HEW was "wrong" in approving the plan because the plan was inadequate. From there, the adequacy of the plan was put to test. Whether the agency was right or wrong is not the object of review.[19] The matter for determination is rather whether, in reaching its expert conclusion, HEW followed a rational path, one marked by consideration of all relevant factors and free from clear errors of judgment. The Administrative Record The first step in determining whether the Secretary's action was arbitrary and capricious is to define the data upon which he acted. Judicial "review is to be based on the full administrative record that was before the Secretary at the time he made his decision," Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 420, 91 S.Ct. at 825 (footnote omitted), and not on the basis of ". . . some new record made initially in the reviewing court." Camp v. Pitts, supra, 411 U.S. at 142, 93 S.Ct. at 1244.[20] *927 The parties have hotly disputed what constitutes the administrative record in this case. To resolve the dispute, we have been guided by the considerations which follow. The prohibition against measuring agency action according to facts adduced for the first time on review derives from the doctrine of separation of powers: "If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment. For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency." Securities & Exchange Commission v. Chenery Corporation, 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). "an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained." Id., 318 U.S. at 95, 63 S.Ct. at 462. The obvious and "important corollary" to the Chenery rule is that the "basis [of an administrative action] must be set forth with such clarity as to be understandable." Securities & Exchange Commission v. Chenery Corporation, 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). However, although the Chenery cases and the cases following them confine judicial review to the contemporaneous record, they give no indication how that record is to be discovered if it was not contemporaneously set forth clearly . . . or at all, for that matter. Where, as here, the agency's action consists of non-formal decision making and there is no requirement that the Secretary compile a contemporaneous record, what the factual basis for his decision was is itself a question of fact, which is resolved like any other such question.[21] The plaintiffs have consistently argued that that question of fact has already been resolved by HEW's submission of an "administrative record" and documents denominated "findings and reasons," Exhibits PX-1, PX-16—all of which were both compiled and presented well after the Secretary's approval in August, 1976. We believe that in a case like this, where the "contemporaneous" factual record came into existence only after the challenged decision, the court's obligation to conduct a "thorough, probing, in-depth" inquiry, Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 415, 91 S.Ct. 814, requires it independently to determine what facts were before the agency at the time it acted. The conduct of such an inquiry is best calculated to determine the facts upon which the administrator actually relied and in no way compromises the separation of powers. Moreover, even if the dimensions of the administrative record did not pose an issue of fact in this case—that is, even if there were no dispute about the basis of the Secretary's approval—supplementary testimony would be required. This is so because here, as in every other case involving examination of an agency decision, the basis of the decision is not merely factual, but also involves theoretical considerations. That is, the court must not only determine the facts upon which the agency made its decision but also how it construed these facts.[22]*928 This, too, is a question of fact, and is resolved on the basis of written or oral testimony of agency officials: ". . . since the bare record may not disclose the factors that were considered or the Secretary's construction of the evidence, it may be necessary for the District Court to require some explanation in order to determine if the . . . Secretary's action was justifiable under the applicable standard." Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 420, 91 S.Ct. at 825; accord, Camp v. Pitts, supra, 411 U.S. at 142-43, 93 S.Ct. 1241; County of Suffolk v. Secretary of Interior, supra, 562 F.2d at 1384 ("Although review of deliberative memoranda reflecting an agency's mental process . . . is usually frowned upon, . . . in the absence of formal administrative findings they may be considered by the court to determine the reasons for the decision-maker's choice." (citations omitted); National Nutritional II, supra, 557 F.2d at 331-32. These considerations lead us to judge HEW's approval in the light of the thought processes which, although in some instances first asserted at trial, we credit as having been employed contemporaneously by the agency in reaching its decision. FINDINGS Satisfying the Reasonable Cost Criterion —Impact At trial, the hospitals attempted to establish that the State's formula, referred to above, which generated the impact figures was wrong and that therefore, HEW's conclusion that the plan provided reimbursement of reasonable costs—a conclusion that rested principally on HEW's review of the impact tables—was arbitrary and capricious.[23] The hospitals offered a formula which shows the impact of the lowered ceilings to be substantially greater than the one upon which HEW acted. Resolution of the dispute requires that both formulas be described in greater detail. As indicated above, the State formula expressed impact both as an absolute disallowance (the Medicaid Disallowance) and as a percentage representing the Medicaid Disallowance divided by the total base year inpatient cost. The Medicaid Disallowance, the amount by which a hospital's Medicaid costs exceeds the ceiling,[24] is derived by multiplying a hospital's total Medicaid days by its per diem Medicaid Disallowance (the last figure is the amount by which a hospital's per patient, per diem base year cost exceeds the group average). In short, the Medicaid Disallowance is the projected "shortfall" of the prospective payments and the State's impact formula compares that shortfall to the hospital's total inpatient costs. HEW viewed the impact data in a variety of perspectives, taking into account that hospitals could respond to a projected shortfall in a number of ways. As Budoff (and others) testified at trial, a hospital faced with a Medicaid Disallowance could: (1) retain its cost structure and attempt to recover the disallowance on appeal (Tr. 302, 2821), (2) retain its cost structure and suffer the disallowed amount as a deficit (Tr. 302-03, 899; see also, id. at 3295-96, 3313, 3323-25), or (3) reduce its total inpatient cost by the amount of the Medicaid Disallowance and thereby balance its books in the rate year (Tr. 302, 899, 906, 918) Bearing these considerations in mind, HEW concluded that notwithstanding the diminution of the prospective payment rate (which, according to the impact formula HEW accepted, for more than 90% of the hospitals, would result in disallowances of between 0 and 2% of total actual costs), the plan guaranteed reasonable reimbursement: "we went to the impact statement and determined that . . . 92 percent of *929 [the] hospitals were going to have costs disallowed of between 0 and 2 percent of their total inpatient costs . . . [I]f they can justify . . . [the disallowed] costs and can satisfy an appeal on those costs, they will get those costs . . [On the other hand, the disallowance] is not money which is being taken away from . . . [a hospital] at . . . [the time the new formula is announced]. [The new rate] is a notification that in the coming year . . . [the hospital is] going to receive X amount of money. If [it] can't justify [its] costs, [it] has the coming year to reduce [its] costs by that percentage and if [it is] successful in doing that, [it] can be whole at the end of the year, [its] income will match [its] expenses. "An impact of between 0 and 2 percent on a cost that couldn't be justified seemed to us to be a reasonable thing to do." (Tr. 302-03) In their attack on HEW's conclusion with regard to reasonable costs, the hospitals focused on the impact analysis, and, in particular, on rebutting Budoff's remarks that a hospital would be made whole if it cut its inpatient costs by the amount of the Medicaid Disallowance. Crucial to Budoff's conclusion as to the amount a hospital would have to save to balance its books was the expectation that whatever reductions the hospitals achieved as to Medicaid patients in the rate year, non -Medicaid patients would continue to pay at the same level as before. (Tr. 905-06) It was this expectation that the hospitals, through their expert, Dr. Norman Hirsch, criticized: ". . . in the real world, a hospital gets reimbursed from not only Medicaid, but from other third party payers; and other third party payers generally pay based on actual costs incurred . . . "Therefore, if a hospital does reduce the costs as . . . testified to by Mr. Budoff, the cost of all the patients is reduced and therefore, the hospital receive[s] less reimbursement from the other third parties than it had originally intended to do." (Tr. 3109)[25] According to Hirsch, a reduction in cost equal to the Medicaid Disallowance would not balance the books because, as Budoff conceded (Tr. 903, 2420), a reduction in hospital costs must be distributed over the entire patient population, not just the Medicaid segment:[26] therefore, a reduction equal to the Medicaid Disallowance would not bring the Medicaid patient per diem cost down to the ceiling level. Consequently, the Medicaid portion of the books would show a deficit, and that deficit would not be compensated for by other third party payers, since, according to Hirsch, they would pay no more than the rate to which the per diem cost had been reduced. In plaintiffs' view, the only way a hospital could balance its books would be to eliminate the deficit in the Medicaid portion of the budget. But this elimination in turn would require a hospital to reduce its total costs sufficiently so that when the reduction was averaged over the entire patient population, the per diem cost for all patients would drop to the level of the Medicaid ceiling. Such a reduction the plaintiffs define as the "total disallowance," the product of the per diem Medicaid Disallowance and the total number of patient days (rather than the number of Medicaid patient days which is the multiplier used in the *930 State's impact formula). In other words, the formula relied on by HEW was asserted to be incorrect by a factor equal Total patient days to Medicaid patient days We find that HEW rationally reviewed the reasonable cost criterion and that its use of the State's impact formula was not "arbitrary or capricious," nor did it amount to a "clear error of judgment." First, the hospitals failed to establish that Medicaid cuts would be imitated by other third party payers.[27] Blue Cross was the only example of alleged coupling that was offered, and although there was no dispute that Blue Cross' reimbursement rates might be affected by the Medicaid rates (Tr. 696-99, 2623, 3110-11, 3301-02), the hospitals presented no evidence of the details of the Blue Cross plan, and there was no proof that Blue Cross' ceilings were set at the same level as Medicaid's, so there was no proof as to the magnitude of the Blue Cross disallowance, if any (see Tr. 2836, 3365). On the other hand, Budoff testified that certain reimbursements prohibited under Medicaid would be permitted by Blue Cross (TR. 699). Furthermore, he testified that Blue Cross was believed to use a different statistical method for computing its group averages (TR. 2674-75). In sum, there was no evidence as to the precise relation between Blue Cross and Medicaid nor was there any evidence to support Hirsch's proposition that the inclusion of the alleged coupling effect would on the whole raise the impact by a factor of 2.5. Having said this we consequently find that when HEW considered impact-as-deficit, it reasonably measured the deficit to be the Medicaid Disallowance, and not any additional disallowances resulting from coupling. Second, even if the hospitals had made an adequate showing on the question of coupling, they failed to establish the correctness of their view as to what would be required of a hospital in order for it to balance its books; indeed, there was substantial testimony from the other side rebutting the hospitals' theory that the only way to balance the budget would be to reduce costs by the total disallowance. What emerged at trial is that the real world, which HEW was charged with having ignored, is substantially more complicated than either Budoff conceived or Hirsch testified. For example, Hirsch conceded that notwithstanding the practice of other third party payers, some portion of the hospitals' population would continue to pay at a rate in excess of actual cost. Taking this into account, Hirsch's tables showed that if a hospital attempted to balance its books as Budoff had suggested, by reducing total costs by the Medicaid Disallowance, although the books would not balance, the imbalance amounted to 0.7% of the hospitals' total inpatient costs.[28] In further rebuttal of plaintiffs' contention, HEW's expert, Fred Hellinger, testified—and we credit his testimony—that a hospital notified of a decrease in its Medicaid reimbursement could manipulate its costs in several ways to compensate for the reduced revenue, all without making the drastic cut described by Hirsch.[29] *931 Moreover, use of "disallowances" — particularly total disallowances — is a completely inappropriate way to measure impact in light of the existence of an appeals system. As discussed above, HEW correctly perceived that one, if not the most probable, response of a hospital adversely affected by the lowered ceiling was to prosecute an appeal. The stake on such an appeal is the Medicaid Disallowance — the total disallowance is irrelevant — and HEW reasonably concluded that the availability of appeal insures that whatever the shortfall of prospective payments, a hospital will ultimately be reimbursed its full reasonable costs. Finally, obliging HEW to use the plaintiffs' proposed theory of "impact accounting," which measures the effect of changes in Medicaid reimbursement rates on the rates of other hospital payers, may well be inconsistent with Congressional intent. The hospitals appear to argue that in considering any reduction in Medicaid payments, the State (and HEW) are required to anticipate the secondary effect that such cuts might have on rates for similar services for non-Medicaid patients. When HANYS presented this argument to Budoff (prior to HEW's approval), he responded bluntly that HEW was "aware of the coupling but did not take that into consideration in . . . approving a Medicaid reimbursement methodology because we were concerned with paying reasonable rates for Medicaid patients and what Blue Cross might or might not do was not our consideration." (Tr. 2840-41) We believe that Budoff's view properly perceived the limits of the State's and HEW's responsibility. Carried to its logical conclusion, the implication of the hospitals' impact theory would result in the proposition that no Medicaid cut, even one which disallowed unreasonable cost, may be made unless the hospitals are "held harmless" against any secondary effect on non-Medicaid costs and revenues. It is seriously to be doubted that Congress intended the State or HEW to be responsible, directly or indirectly, for the payment schedules applicable to services rendered to non-Medicaid patients. Such an intent would be inconsistent with the State's power to determine what constitutes reasonable Medicaid costs and to reimburse accordingly. It would also saddle both the State and HEW with an impossible task. The trial made evident that a hospital may avail itself of a number of strategies to cope with budget cuts, so that the effect of a Medicaid cut, as opposed to its amount, is something that can be measured only after a hospital chooses its responsive strategy. Neither the State nor HEW may be charged with anticipating the full range of a hospital's reactions to a reduction in Medicaid revenues. In sum, we find that HEW's reliance on the State's impact tables was not a clear error of judgment.[30] Having said this, in light of what the impact tables showed — a negligible, if any, disallowance of actual costs, which might nevertheless be recovered on appeal — HEW's conclusion that the plan would provide payment on a reasonable *932 cost basis rested on rational grounds; it was not reached arbitrarily and capriciously.[31] HEW's Failure to Consider the HHC Data HHC is the State's primary Medicaid provider, accounting on its own for more than 40% of the Medicaid inpatient days of care rendered by all hospitals in the State. (Tr. 3159; PX-33) In reaching its conclusions as to what the impact of the 1976 amendments would be on the hospitals of New York State, HEW acted on figures which did not include data relating to HHC. (Tr. 502-4, 868-9, 892-99) HEW's witnesses explained this figure by stating that no reliable data as to HHC was available and that, in any event, the impact of the amendments on HHC and other hospitals could be determined by extrapolation of the figures which were available. HHC challenges HEW's explanation, asserting that reliable HHC information was available before HEW made its decision and that the extrapolated data was inadequate. HHC claims that if HEW had taken into consideration HHC's figures it would have concluded that the statewide impact of the amendments was $61,000,000. rather than $25,000,000., the figure on which HEW relied. Whatever first blush appeal HHC's argument has, on considered judgment it is not persuasive. While it is undisputed that the percentage of Medicaid patients treated by HHC hospitals was substantially higher than the percentage of Medicaid patients treated by other hospitals, the plaintiffs did not demonstrate that the proportion of a hospital's patients receiving Medicaid assistance necessarily influences its costs. What the statute and regulations call for, and what the hospitals are entitled to receive is the reimbursement of their "reasonable costs." In sum, it cannot be said that because HHC's percentage of Medicaid patients is high, its reasonable costs for treating them will necessarily vary from that of other hospitals and therefore warrant reimbursement at a different level. Moreover, Budoff testified that because of HEW's concern that the data submitted to it by the State did not contain information as to the impact upon HHC (Tr. 870-72), it was determined, reasonably, we believe, that the HHC hospitals' costs be "leaned against;" that is, be made subject to the appropriate group average after the calculations. (Tr. 872-73, PX-1 at 17) Finally, it must be remembered that HEW knew HHC could, of course, appeal if the actual impact of the amendments, in fact, resulted in HHC's being reimbursed less than its reasonable costs. In the circumstances, we do not find HEW's failure to have considered data relating specifically to HHC to have rendered its determination arbitrary or capricious. Satisfying the Reasonable Cost Criterion — Appeals HEW's conclusion that the plan provided reasonable reimbursement was based, in important part, on its view that any deficiencies in the prospective phase of reimbursement could be cured on appeal. As HEW saw it, the appeal process would allow hospitals to recoup any justified costs that had been disallowed as being in excess of the group average, and HEW perceived the process to be an essential element of the plan (Tr. 292, 303, 1002-03, 1347-48): ". . . [W]e approved that ceiling reduction only after we had received from the state adequate representation and *933 documentation that an appeals process would exist that would give relief to those hospitals that had legitimate costs above the ceiling . . . [The new plan] would not have been approved without an adequate appeals process." (Tr. 165; see also, id. at 549-50, 1017) The hospitals contend that HEW approved the 1976 amendments without receiving any meaningful assurance that the vital appeals element would work. In particular, they complain that: (1) there was no written description of the appeals mechanism, so that hospitals had no idea how to file or prosecute an appeal, (2) the grounds upon which an appeal could be taken were unknown, (3) there was no guarantee that hospitals would have sufficient data with which to support an appeal, (4) there was no assurance that procedural due process standards would be met, (5) HEW failed to obtain any written promise that sufficient staff would be made available to process appeals timely, and (6) that in view of all the above mentioned points, the appeals system, which the hospitals contend comprises the core of the 1976 plan, lacked methods and standards, in violation of 42 U.S.C. § 1396a(a)(13)(D).[32] Lack of Written Description Prior to HEW's approval of the 1976 amendments, HANYS complained to the agency that the State had not provided the hospitals with a written explanation of the appeals process (PX-1 at 395, 480; Tr. 2059-60). HEW conveyed these complaints to the State during negotiations conducted in the first two weeks of August, 1976 (Tr. 2063-78, 2491-95). The State conceded that no explanation had been written and circulated; it explained that its failure to publish an appeals guide was motivated by its concern that publication would lead to a rash of appeals (Tr. 577, 1336, 2454). HEW insisted that the State distribute to the hospitals "a written appeals procedure so that there would be no question of the mechanics of actually filing an appeal." (Tr. 2078; see also, id. at 329, 2454-55, 2716). As a result of this insistence, the State committed itself to writing and circulating an appeals guide (Tr. 2455). Although the guide itself was not contained in the plan when and as approved (Tr. 1320), the plan did contain a comprehensive outline of the guide (PX-1 at 51-2),[33] and the State gave HEW oral assurances that it would ultimately produce and circulate a detailed explanation of the procedure. (Tr. 1318, 1336). These assurances were confirmed in a letter from the State, which accompanied the comprehensive outline: "As indicated at our August 12th meeting, this [written appeals] process will be distributed to all hospitals statewide with sufficient detail to make it clear and readily accessible to all interested parties. . . ." (PX-1 at 50) (Letter of J. Raymond Diehl, Jr., Acting Deputy Commissioner, Division of Medical Assistance) On the basis of the oral assurances and the written confirmation HEW satisfied itself that the State would publish and send a written explanation of the appeals system (Tr. 1335-36; see also, id. at 1312-18, 1323-25, 2716). As Acting Deputy Regional Commissioner Dennis Coughlin testified: *934 ". . . pages 51 and 52 [of the administrative record, PX-1] . . . — that document from my perspective represented an outline and a commitment on [the State's] part that they would publish procedures and disseminate these procedures so that all hospitals would be aware of what steps had to be undertaken and followed in filing an appeal. . . ." (Tr. 1311; see also, id., at 579, 1322) The hospitals do not contend that HEW failed to explore the "appeals guide" problem with the State. (Certainly, the uncontradicted testimony adduced at trial established that HEW not only reviewed the problem but was active in, and primarily responsible for, getting the State to correct the problem.) However, the hospitals argue vigorously that HEW impermissibly relied on the State's oral assurances with regard to the promised guide, and that there was accordingly no reliable assurance that the State would fulfill its obligations. First, as we held in the earlier opinion, neither statute nor regulation prohibits HEW from acting on the basis or oral promises. Hospital Association of New York State, Inc. v. Toia, supra, 438 F.Supp. at 872. In any event, the State's oral assurances were confirmed in writing by the Diehl letter. However, neither oral nor written assurances provide an absolute guarantee of future performance; nor as we view it, is HEW obligated in reviewing and approving proposed plans, to obtain such guarantees. In the nature of things, there is always a possibility that a State may not comply with its own obligations under a plan. The solution is not to defer approval or insist that all promises be written but, rather in case of breach, to enforce the promises, oral or written, that the State makes. Budoff testified, and we have no reason to discredit his testimony, that had the State failed to publish the guidelines as promised, HEW would have commenced a compliance proceeding. (Tr. 751, 1017-18). Moreover, as Budoff testified, HEW had no reason to distrust the State's oral assurances: ". . . the State of New York and the federal government had had a longstanding relationship and . . . oral representations were continually being made back and forth. "There was the understanding or the fact that we would continue to have relationships with the state and to the extent that they had up to that point not reneged on any prior oral representations, there was no reason to conclude that they were going to renege on oral representations being made at that point." (Tr. 1034-35) We believe that where, as here, there was no history which would cause HEW not to rely on the State of New York, it was entitled to accept the State's word, especially in matters of such import and where a mechanism for forcing compliance existed if the word were breached. (Tr. 1208-09) Grounds for Appeal Plaintiffs contend that the appeals section of the approved plan does not adequately specify the grounds upon which appeals from the ceiling rates may be taken. Furthermore, it is argued that the provision does not indicate what showing an appellant must make to prevail on appeal. Aside from the fact that this argument speaks more to the merits of the plan than to the adequacy of HEW's review, it is inaccurate. The appeal system lists specific grounds for an appeal and also includes a catch-all provision that permits an appeal to be taken whenever a hospital can identify a "pertinent factor" that causes costs in excess of the ceiling: "86.17 Revisions in Certified Rates. (a) The State Commissioner of Health may consider only those applications for prospective revisions of certified rates which are based on * * * * * * "(7) requests for relief from the ceiling provisions of section 86.14 of this part. For such relief, a medical facility must demonstrate that its range of approved services, patient mix, lengths of appropriate *935 stays or other pertinent factors[*] are direct causes for all or part of the costs in excess of the routine or ancillary ceilings. Such relief shall not result in a rate which exceeds that based on maximum reimbursable State standards, unless a waiver of such standards is granted by the commissioner. If relief is granted, the resulting revised rate shall become effective as of the first day of the rate period. (PX-1 at 349-50) (emphasis in original) We find that the above-quoted provision is meaningful and that HEW's endorsement of it was rational and certainly not a clear error of judgment. Moreover, it is fair to say that the language amounts to the very sort of provision that HANYS lobbied for prior to HEW's approval, as may be seen from its written submission to the agency: "Appealable items ought to include . . ceilings . . ." (PX-1 at 480) "Inasmuch as the New York State prospective rate setting system makes no provision for end-of-the-year adjustments, it is important that [the appeals provision] be as flexible as possible and recognize unforeseen and special circumstances." (Id. at 391-92; see also, id. at 394) It is evident from the correspondence under whose cover the amendments to the appeals provisions were submitted (PX-1 at 342, 348), as well as from the annotations to the amendments themselves (id. at 347, 350), that HEW was largely responsible for persuading the State to adopt HANYS' suggestions. HEW cannot be criticized for having carried out HANYS' wishes. Unavailability of Data The availability of an appellate forum was an empty promise, charge the hospitals, unless data sufficient to make an argument were available to the aggrieved providers. HEW is alleged to have been derelict in taking the State's word that it would provide the hospitals with the information needed to prosecute appeals. Aside from the fact that the trial record does not support plaintiffs' claim that the State promised to provide all necessary data, we find that collection of data necessary for appeal is reasonably the hospitals', not the state's or HEW's, responsibility. First, during its negotiations with HEW, the State did represent that the hospitals would be provided sufficient data to prosecute an appeal, but not that the State would be the sole source of that data. To the contrary, the State indicated that it would provide whatever information it had (Tr. 570, 1342, 1345) and that it anticipated that additional data would be available through professional hospital associations and cooperatives. (Tr. 620-22) What the State did represent was that by using all sources of information, available from both the State and professional organizations, the hospitals would have the information necessary to take an appeal: "In discussing how the hospital[s] could present their appeal, the State represented that they would make available to the hospitals any data that they would have that would be pertinent and also that the Hospital Association themselves had a fairly large network of sharing information and that [a] hospital would be able to make its appeal from the data that was out there and available." (Tr. 2108-09; see also, id. at 620-22, 1471-74, 2719) HEW relied on the State's oral assurance as to the general availability of data (Tr. 639-40); it conducted no independent investigation on this issue. (Tr. 638-39, 1349-50) As indicated in our earlier discussion, reliance on these oral representations was reasonable (see supra at 933-934). Furthermore, there was no evidence at trial that the reliance was misplaced: the plaintiffs made no showing that the data was unavailable.[34] Moreover, the State, much *936 less HEW, is not the guarantor of information. Like any other litigant, a hospital must assume the burden of making its case, and this means that it has the primary responsibility for collecting pertinent information[35] where there is no showing that the State is the sole repository of the necessary data. Procedural Due Process of Appeal System At the administrative level, HANYS complained to HEW that the plan's appeals provision specifies ". . . no time limits, specific hearing procedures, or notice requirements," and urged that the provision be brought "into conformity with fundamental due process requirements." (PX-1 at 395-96) The procedural due process aspects of the appeals system — the right to a hearing, the time within which an appeal could be taken and within which it had to be decided, the burden of proof and the standard of decision-making — were matters that Budoff and Coughlin did not consider. (Tr. 572-73, 608-10, 1224-26; see also, id. at 2222-23) Budoff relied exclusively on the advice of HEW's regional attorney that the appeals system conformed with due process. (Tr. 569, 580-81, 609) Such dependence was not unreasonable in the circumstances. The question was a legal one, properly left to HEW's regional attorney. Moreover, HEW cannot be charged with the responsibility of guaranteeing the plan's conformity with the Constitution. Whether a procedure offends due process is often a complicated question, and, absent glaring defects — none of which have been established in the present case — the question does not even arise until, in the course of applying the system, particular defects are discovered or complained of. Even then, the remedies are negotiation between concerned parties (in this case, the hospitals and the State) or, if that fails, recourse to HEW or the courts. Staffing When HEW discussed the proposed appeals system with the State, the agency was aware that there was already a backlog of appeals. (Tr. 555-58, 564, 2074-75) Mindful that increased appeals could be anticipated in light of the lowered ceilings, HEW discussed whether the State would be able to handle the increased load. These discussions were not detailed; HEW did not explore how much additional staff would be required, or how much time would be involved in the resolution of any given appeal. (Tr. 1336-37, see also, id. at 750, 2717). Instead, the agency relied on the State's verbal assurance that it would hire whatever staff and take whatever steps were necessary to process the appeals on a reasonably prompt basis. (Tr. 565, 567-68, 577-78, 750-51, 1335-36, 2075) As Budoff testified: ". . . we got assurances and representations from the State of New York that should every one of the hospitals appeal, the [S]tate was prepared to put on whatever staff and do whatever was necessary to process those appeals in a reasonable period of time." (Tr. 303; see also, id. at 2078) Based on these assurances, and also upon HEW's recognition that despite the backlog, the State had been processing appeals at a satisfactory rate in the past (Tr. 571-72), HEW felt that the State would process appeals adequately. As in other instances, the hospitals criticize HEW's reliance on the State's oral assurances, but as earlier discussed, such reliance *937 was reasonable, and, therefore, HEW's conclusion that the appeals system would be adequately staffed was not arbitrary or a clear error of judgment. Methods and Standards The hospitals argue that the appeals process amounted, in fact, to the plan (i. e., the tail that wagged the dog) and because that process lacked "methods and standards," the plan itself lacked "methods and standards." The hospitals established neither premise of this argument. First, the appeals process was not the plan, but part of it. (Tr. 1002-03) Plaintiffs argue that 61% of the hospitals were expected to appeal. This percentage indicates nothing. As we said in an earlier opinion, the importance of the appeals system is not to be measured by the number of appeals expected, but the stakes on appeal. Hospital Association of New York State, Inc. v. Toia, supra, 438 F.Supp. at 874. HEW was aware of the 61% figure, but it concluded that because of what it considered to be the minimal impact of the proposed rate changes, almost all of the appeals would involve small stakes. It was in this context that HEW concluded that the appeals process was adequate, and we find that that conclusion was not reached arbitrarily or capriciously, nor was it a clear error of judgment. Yet even if the appeals procedure could fairly be designated as "the plan," HEW reasonably concluded that it contained "methods and standards." Section 86.17(a)(7) lists the bases on which appeals may be brought and this sufficiently notifies hospitals of what is required to recoup disallowed amounts. To the extent that the provision is general, it reflects a need for a system that can accommodate extraordinary circumstances. That there is no explicit mention of burden of proof, nor guidelines for rendering decisions is not fatal. As for the mechanics of the process — how long appeals would take, how many staff members there would be — HEW reasonably relied on the State's assurance that these would be properly taken care of. Finally, it is important to note that the process provided that an unfavorable decision on appeal could be further appealed to the courts of New York State pursuant to Article 78 of the Civil Practice Law and Rules. That provision assured all concerned that any dispute as to whether a hospital would be reimbursed its reasonable costs would be determined objectively and in accordance with law; and knowledge of the existence of this provision strengthened the reasonableness of HEW's approval of the appeal system. * * * * * * In sum, the plan that HEW approved did provide "for payment of the reasonable cost . . . in accordance with methods and standards . . ." (42 U.S.C. § 1396a(a)(13)(D)). The approved plan was partly prospective (reimbursement on the basis of the group average) and partly retrospective (appeals). The prospective portion clearly contained well defined methods and standards for computing reimbursement (grouping, averaging, imposing ceilings), as did the appeals part. Though a hospital may not have known in advance precisely how much money it would receive, the statute and regulations do not require that. They command that methods and standards for computing the ultimate amount be worked out in advance. The State plan accomplished this and HEW's conclusion that it did so was not arbitrary or capricious. Other Criteria Incentives for Efficiency and Economy It has never seriously been contended that HEW failed to pay adequate attention to whether the State plan contained "incentives for efficiency and economy." 45 C.F.R. § 250.30(a)(2)(ii)(a). Indeed, on the earlier motion for summary judgment, the hospitals argued that this criterion received too much emphasis Hospital Association of New York State, Inc. v. Toia, supra, 438 F.Supp. at 873 and at trial they offered no rebuttal to the validity of HEW's analysis — described below — with regard to this criterion. *938 What emerged at trial is that HEW concluded that the basic structure and operation of the plan as a whole provided incentives to operate efficiently. As Budoff testified without challenge, a prospective reimbursement system, which announces paid rates in advance of the reimbursement year, encourages hospitals to bring their costs into conformity with the rates. ". . . [T]he methodology itself is a prospective reimbursement methodology and the nature of a prospective reimbursement methodology is to indicate to [a hospital] what its reimbursement will be for the coming year. "A prudent operator . . . knows how much money he is going to get for the coming year. [T]o the extent that this amount of money has . . . ceilings and limitations . . . [it] require[s] him, in order to have his income meet his expenditures, to realize certain efficiencies and economies. So it is the nature of the prospective system itself that induces efficiencies and economies." (Tr. 115-116; see also, id. at 117, 2260-61) This analysis is palpably rational, not arbitrary or capricious. It is interesting to note that Budoff's testimony is consistent with what the Washington office of HEW later (post-trial) announced to be its position on the question of efficiency and economy: "Incentives For Efficiency And Economy Comment. How does a State adopt standards and principles which provide incentives for efficiency and economy? This provision is so vague that it appears unenforceable. Response. There are various approaches to meeting this criterion. One approach, for example, would be to establish prospective payment rates: another approach would be to establish rates based on comparisons with peer groups. In keeping with the flexibility intended for development of alternative plans, we do not mandate specific methods." 43 Fed.Reg. 8803 (March 3, 1978)[36] Assurance of Adequate Participation and High Quality Care As discussed earlier, HEW's conclusion with respect to the participation/quality criterion was based on its impact analysis. Starting with the premise, which was not challenged, that participation of hospitals under the old plan had been 100% (Tr. 132) and that the quality of care was excellent (Tr. 827), HEW decided that the minimal impact of the lowered ceilings would neither cause hospitals to withdraw from the program, nor impair the quality of their medical services. (Tr. 133, 826-28, 1180, 2304, 2316-17). This conclusion proceeds along an obviously logical line of reasoning, and except to contest the validity of HEW's views on impact, the hospitals did not offer evidence disproving the rationality of HEW's analysis. Since we have found that HEW's measurement of impact was not arbitrary and capricious, it follows that HEW's conclusion with regard to the participation/quality factor was rational and not a clear error of judgment. Interns and Residents Disallowance The 1976 amendments to the State plan included a provision that: "In computing allowable costs related to salaries and fringe benefits for interns and residents for purposes of reimbursement during the period January 1, 1976 through March 31, 1977, ten per cent of such costs will be eliminated from rate computations on the basis that this elimination represents the minimum amount properly chargeable to education activities not directly related to patient services." (Section 86.26) *939 For 1975 and earlier years the State had reimbursed the hospitals 100% of the salaries and fringe benefits for interns and residents. The hospitals allege that there was no rational basis for the State's determination that the 10% elimination was "properly chargeable to education activities" and not "related to patient services." They argue that HEW's action in approving the amendment of Section 86.26 was arbitrary and capricious not only because the State's amendment was unsupported by reason or evidence but also because as to this issue, HEW abdicated its responsibility to review the plan, allowing the State carte blanche to decide for what portion of residents and interns salaries the State would reimburse the hospital. Before August 20, 1976, the State proposed to HEW a regulation which would have permitted it to make an across-the-board disallowance of 10% of the costs of interns and residents in every hospital. In support of its application the State submitted documentation which purported to show that at least 10% of residents' and interns' hospital time was spent on educational rather than patient care activities. On August 20th, HEW Washington, in a memorandum to the Regional Commissioner of HEW in New York, rejected the application stating (PX-12, p. 2), "we are of the opinion that this documentation is inadequate to support a decision . . ." Having refused to approve the proposed amendment because it was not supported by sufficient evidence, it might have been suspected that this would have been the end of the matter, but it was not. The State continued to press the request on the theory that it was reasonable to assume that some portion of residents' and interns' time was clearly attributable to education and that under the statute and regulations, the State was not liable to reimburse the hospitals for that time, whatever it was. Accepting the assumption uncritically, HEW, which had refused to approve the State's application for disallowance of a specific percentage of resident-intern salary, nevertheless, approved the State's right to decline to reimburse whatever portion of those salaries the State determined to be devoted to educational matters. To compound the irrationality of this behavior, HEW approved such a carte blanche regulation knowing in advance that the State would, in fact, implement such approval by actually enacting a 10% across-the-board disallowance: the very act which when specifically presented had been disapproved. Budoff testified as to this: "Q In other words, you knew in advance before you officially approved this particular amendment on October 4th that as soon as it was approved the state would impose this ten percent disallowance; isn't that so? A I don't know if we knew for a fact but it was a reasonable assumption to make that they would impose the ten percent. THE COURT: When you say you didn't know for a fact, you mean Governor Carey didn't tell you but that was the assumption? THE WITNESS: Yes. Q You operated on that assumption, is that correct? THE COURT: Or you made your decision knowing that that was likely to occur. THE WITNESS: That is correct, we made it knowing it was likely to occur." (Tr. 530-31) and earlier: "Q Did HEW approve any methods or standards pursuant to which a determination would be made as to the number of hours an intern or resident might be engaged in education activities not directly related to patient care? A No, I don't believe so." (Tr. 527-28) He agreed that the only evidence HEW relied upon in granting the approval it did was a summary of the National Institute of Medicine Study, the very study which, as indicated above, the HEW Washington office determined "inadequate" in its communication of August 20, 1976. (PX-12) He admitted that the document did not relate *940 to New York hospitals, an admission accentuated by the statement of Dr. Robert Whelan, Commissioner of Health, that the State Department of Health had never conducted a study of interns and residents time (Tr. 1794) and that "it has not been determined yet either nationally or statewide as to whether this is an educational experience or not." (Tr. 1795) We find the approval of the amendment to Section 86.26, under the circumstances described, to have been arbitrary and capricious, indeed to have constituted a total abdication of responsibility on the part of HEW with regard to the subject. This view is fortified by the fact that under the regulations, the hospitals have no right to appeal the 10% disallowance of resident-intern salaries. HEW itself has, properly in our opinion, argued that the appeal provisions legitimatize the other amendments by providing a method of individual treatment for what might otherwise be arbitrary disallowance. HEW's approval of a scheme which it knew would produce a non-appealable 10% disallowance, although it had earlier disapproved a specific request to authorize a 10% disallowance, was arbitrary and capricious. If HEW agreed with the State that some portion of resident-intern salary was allocable to education, and non-reimbursable, it was obligated to require the State to determine, on a rational basis, what the extent of that portion was. If it did not agree with the State, there was no basis for the approval. Miscellaneous Objections Failure to Consult The Medical Advisory Committee The hospitals argue that the State's failure to consult the Medical Advisory Committee (MAC) (see § 365-c, New York State Social Services Law (McKinney's 1976)) before submission of the 1976 plan to HEW was a deficiency which required HEW's disapproval of the plan as a matter of law. They base this claim on 45 C.F.R. § 246.10(a)(3), which, in pertinent part, provides that the: ". . . Medical Care Advisory Committee will have adequate opportunity for meaningful participation in policy development and program administration, including the furtherance of recipient participation in the program of the [State] agency [responsible for promulgating the Medicaid plan]." There is no question, and we find, that the State failed to consult MAC before presenting the 1976 plan to HEW (Tr. 819, 2073; see also, id. at 1384-88). However, it does not follow that the State's failure to comply with the applicable State statute and federal regulation warrants reversal of HEW's approval of the 1976 plan. The duty to consult MAC is one that runs directly against the State, see Benton v. Rhodes, 586 F.2d 1 (6th Cir. 1978); Becker v. Toia, 439 F.Supp. 324 (S.D.N.Y.1977); Robinson v. Maher, C.C.H. Medicaid and Medicare Guide, ¶ 27,707 (D.Conn.1976), and to overturn HEW's decision on account of the State's dereliction of this duty would have the effect of imposing on HEW — in its review and approval role — all the substantive obligations that are, by statute and regulation, properly the State's. Such an imposition would improperly amend HEW's status from editor to author of the plan. See Hospital Association of New York State, Inc. v. Toia, supra, 438 F.Supp. at 869. Moreover, such a requirement is not suggested by the regulations themselves, 45 C.F.R. § 250.30, as one which HEW ought to have taken into consideration in approving the State plan. In sum, though the State's failure to work with MAC is deplorable, if not explicitly illegal, the appropriate remedy is the commencement of a compliance proceeding, not the undoing of HEW's approval. The "Ever-Declining Ceiling" The hospitals argue that if the 100% average were imposed as a ceiling year after year, the effect would be continuously to reduce the amount of the hospitals' reimbursement, since, as hospitals kept cutting costs to meet the ceiling, the group *941 average would keep going down. The hospitals contend that HEW should have considered this "ratchet effect" and that its failure to do so was a clear error of judgment. We disagree. First, there was no convincing evidence that the ratchet effect would necessarily occur. Indeed, there was evidence that averages might stabilize as below-group-average cost hospitals were paid a rate above their costs. (Tr. 3348-49) More important, however, the question whether the 1976 plan would create a ratchet effect in later years was not a proper consideration for HEW at the time it approved the plan, for there was no way of telling whether the State would or would not continue to use the 100% ceiling in the years to come. In short, even if the hospitals had established that the 100% average would—if continued —create a ratchet effect, the issue was not ripe for HEW consideration. (See Tr. 929) We have considered plaintiffs' other arguments and believe them to be without merit. * * * * * * Although this lengthy and complex litigation arose from amendments to the New York State Medicaid Plan, the issue to be decided has never been whether the amended plan was meritorious but whether in approving the amendments, as required by law, HEW acted arbitrarily or capriciously or whether its decision constituted a clear error of judgment. We find that in approving the amendment which set reimbursement ceilings at 100% of hospital group averages for routine and ancillary costs of hospitals, HEW did not act arbitrarily or capriciously; that in approving the amendment reducing reimbursement of interns' and residents' salaries from 100% to 90% HEW did act arbitrarily and capriciously; and that the State's failure to consult the Medical Advisory Committee did not require HEW's disapproval of the amended plan as a matter of law. This memorandum constitutes our findings of fact and conclusions of law. Submit judgment on notice. NOTES [1] See note 4, infra. [2] The basic amended plan, "submittal 76-28," can be found in PX-1 at 1-40. In the course of consultation and negotiation with HEW—leading up to the final approval—the basic plan was supplemented by other submittals and attachments. [3] Routine costs are those arising from services that are provided to all patients (such as nursing and housekeeping). Ancillary costs arise from special services rendered for the particular needs of an individual patient (operating room, chemotherapy, etc.) (Tr. 61). Certain categories of routine and ancillary costs (such as bad debt expenses) are not reimbursed by the Medicaid program and, hence, are excluded from this calculation. [4] Hospitals were grouped according to the similarity of four characteristics: size, ownership, geographic location and teaching/non-teaching (Tr. 59-60, 143). [5] Hospitals are reimbursed their costs as billed, if lower than the ceiling. However, except where an appeal is allowed (see text at footnote 6) they are reimbursed at a rate no higher than the ceiling even if their costs are greater. [6] Section 86.17(a)(7), PX-1 at 349-50. [7] This figure represents ". . . the hospital's total expenditures for all patients . .," (Tr. 918), "the total cost . . . that a hospital incurs in treating all of its patients." (Tr. 2818). [8] For 40% of the hospitals, the lowered ceilings would result in no disallowance; for an additional 42%, the disallowance would be for less than 1%; an additional 8% of the hospitals would experience a disallowance of less than 2%; and an additional 3% of the hospitals would have disallowances of less than 3%. [9] The criteria are quoted in the text at pages 920-921 supra. [10] See Tr. 214, 387-88, 853, 1151, 2376—reasonable cost in terms of impact; id. at 132-33, 826-27, 853, 929-30, 1174-76; 1180, 2302-06, 2316-19—adequate participation/quality care in terms of impact; id. at 1140, 2305, 2315-16, 2825—efficiency economy in terms of impact. [11] With regard to all of the plaintiffs' objections, the government argues that to the extent they may be construed as complaints of failure to consider the governing statutory and regulatory criteria, those complaints which were not brought to the agency's attention prior to its approval may not now be invoked to overturn the agency's action. This argument was earlier made and rejected, Hospital Association of New York State, Inc. v. Toia, supra, 438 F.Supp. at 872, n. 5—HEW cannot delegate its obligation to observe applicable statutes and regulations, County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1385 (2d Cir. 1977)— and nothing now submitted by HEW adds to the arguments made before the earlier ruling. Specifically, HEW's reliance on two cases involving agency rulemaking, State of New York v. United States, 568 F.2d 887, 897-98 (2d Cir. 1977); Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 330, 486 F.2d 375, 397 (1975) is misplaced. In those cases, the courts refused to judge challenged agency actions in light of substantive submissions that had not theretofore been presented to the agencies, since to have done so would have both usurped the agencies' role and unfairly held them responsible for the assimilation of information that had become available only after the challenged decisions. (That is, since rulemaking is generated by an exchange of views and data between the agency and the relevant community, as opposed to deriving from any pre-existing source, a rule may only be judged on the basis of material actually exchanged.) In the instant case, the criteria upon which the agency action is challenged existed prior to HEW's decision, and holding the agency to them is nothing more than requiring compliance with the law. Citation of National Labor Relations Board v. Newton-New Haven Company, 506 F.2d 1035, 1038 (2d Cir. 1974) is similarly unhelpful to HEW's argument. That case reiterated a long standing rule that objections to procedural due process defects are waived if not raised during the challenged procedure. No such objection is in issue here. [12] As is apparent from our earlier opinion, the express criteria of the C.F.R. also give rise to implicit standards. For example, the requirement that the Secretary approve the State's plan in advance of its implementation may be read as an injunction against the Secretary's approving a "plan" which is to be worked out by the State, on an ad hoc basis, during the course of implementation. See Hospital Association of New York State, Inc. v. Toia, supra, 438 F.Supp. at 874-75. [13] Because review of the Secretary's conclusion would have lead unavoidably to a consideration of the merits of the defunct 1976 State plan, such review would have been moot and of no value. Also, the conclusion itself, as opposed to the manner in which the Secretary reached the conclusion (that is, whether or not he attended to the applicable C.F.R. criteria)— involves complex technical considerations that may well be an inappropriate subject for judicial scrutiny. Kletschka v. Driver, 411 F.2d 436, 443 (2d Cir. 1969). [14] This contention ignores the fact that our earlier use of the term "procedure" occurred in connection with the question whether HEW had properly considered the relevant C.F.R. criteria. Hospital Association of New York State, Inc. v. Toia, supra, 438 F.Supp. 866, passim. [15] HEW brief at 217. [16] In Vermont Yankee, the Court of Appeals had "examined the [contested] rulemaking proceedings and, despite the fact that it appeared the agency [had] employed all the procedures required by 553 and more, the court determined the proceedings to be inadequate and overturned the rule" 435 U.S. at 535, 98 S.Ct. at 1207. The Supreme Court reversed the decision of the Court of Appeals and reasserted the rule ". . . that generally speaking . . . section [553] of the [Administrative Procedure] Act established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures. Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them." 435 U.S. at 524, 98 S.Ct. at 1202 (footnote omitted) [17] The other potential standards of review, 5 U.S.C. § 706(2)(B), (C), (D), (E), and (F) either do not apply or reach the same result. Subsections (E) and (F) are inapplicable, the first because the action challenged here was neither rulemaking nor adjudication; the second because de novo review is indicated only when the judicial proceeding is one to enforce an administrative action or when there have been inadequate fact finding procedures in an adjudicatory proceeding. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Subsection (B) is no longer available since the plaintiffs did not press their constitutional claims at trial. To the extent that the charge of failure to observe the relevant criteria may be fitted to the language of subsections (C) or (D), our findings of fact would nevertheless be the same, as would be the conclusions of law. [18] The government urges that in conducting its inquiry, the court should uphold HEW's approval unless the agency had a "sufficient basis" for rejecting the State's plan. See Massachusetts General Hospital v. Weiner, 569 F.2d 1156, 1160 (1st Cir. 1978). Our findings make it unnecessary to decide whether state Medicaid plans submitted for HEW approval enjoy such a presumption of approvability. [19] Cf. United States v. Nova Scotia Food Products Corp., supra, 568 F.2d at 251 (2d Cir. 1977), "[A] reviewing court will not match submission against counter-submission to decide whether the agency was correct in its conclusion on . . . matters [within the agency's area of technical expertise]." [20] Accord, United States v. Nova Scotia Food Products Corp., supra, 568 F.2d at 249; County of Suffolk v. Secretary of Interior, supra, 562 F.2d at 1384; National Nutritional Foods Association v. Weinberger, 557 F.2d 325, 331 (2d Cir. 1977) ("National Nutritional II"); National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 701 (2d Cir.), cert. denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 445 (1975) ("National Nutritional I"). [21] In cases involving rulemaking and adjudication, the record is defined as a matter of law. See 5 U.S.C. §§ 553(c), 554(c)(2). [22] In cases involving "on the record" rulemaking and adjudication, this question is normally resolved by referring to contemporaneous documentation. See 5 U.S.C. § 557(c)(A). In cases involving non-formal decision making, although the agency is under no obligation to record its rationale, if it does so contemporaneously, the contemporaneous record may be dispositive of the question. See Camp v. Pitts, supra, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106. [23] The hospitals also argued that it was arbitrary and capricious for HEW to base its conclusions as to reasonable cost reimbursement on the presumption of inefficiency, because that presumption was not stated in the administrative record and, in any event, was baseless. [24] The Medicaid Disallowance includes the interns'/residents' disallowance, but for the purpose of argument as to what impact formula was correct, the interns'/residents' disallowance was ignored by all parties. [25] As an example of the claimed reverberating effect that any Medicaid reductions would have, the hospitals testified to "Blue Cross coupling," a phenomenon which they asserted would itself increase the impact figures by a factor of 2.5% (Tr. 3112): "At least in the northeastern part of the United States, almost all the Blue Cross plans have some form of reimbursement which is closely related to cost; be it on a prospective or retrospective basis." (Tr. 3113) ". . . for the patients that are covered by Blue Cross . . . their reimbursement is going to be reduced if indeed the same formula were applied as applied to Medicaid." (Tr. 3111). [26] Although Budoff testified that cost cutting had to be "across the board," because hospitals could not restrict patient cost to the indistinguishable Medicaid segment, an HEW expert testified that such a restriction was possible (infra, at n. 29). [27] Even Hirsch's testimony as to coupling was phrased in a tentative mode (see text at n. 25). [28] See PX-29, line B, where a hospital with $10,000,000. total inpatient cost shows a $70,000. imbalance. Note that even assuming all non-Medicaid patients paid at a strict cost rate, Hirsch's tables showed that the Budoff "balance" formula was incorrect by a factor of only .8%. PX-28, line C ($80,000. deficit in a $10,000,000. budget). [29] A hospital can increase charges for those patients whose reimbursement is on a charge, as opposed to cost, basis (e. g., self-payers). In some instances, this increase may be accomplished by identifying services that are used more often by one group of patients than by another: ". . . it is possible for hospitals to increase the charges for services used most intensively by Medicare patients, hence increase the ratio of Medicare charges to total charges within a given department, and, hence, increase the reimbursement. "In fact, we have done studies which indicate that hospitals do exactly that." (Tr. 3327; see also, id. at 3293, 3321). Hellinger also testified that Medicaid cost can be decreased independently of other patients costs, through the manipulation of the lengths of stay of Medicaid patients. (Tr. 3293-96) [30] In light of this and the consequent ruling upholding HEW's conclusion as to the reasonableness of the rates, it is unnecessary to decide whether HEW ought to have rejected the State's grouping criteria, or the statistical methods it used in computing the group average. Grouping was the means of setting the ceiling rate. Once HEW determined that the ceilings (together with appeals), provided reasonable reimbursement, it was unnecessary to decide whether the groups were properly constructed and the average correctly computed. It should be noted, however, that HEW did explicitly consider whether the criteria for grouping hospitals were sufficiently refined in light of the lowered ceilings and it decided they were. (Tr. 119-20, 144-45, 800, 1418; see also id. at 290-91, 1416, 1430-33, 2354-55) As for the statistical methods used by the State, HEW offered evidence that they were sound (see Tr. 210-11, 306, 1403-08, 2075-76) while the hospitals submitted nothing to contest this conclusion, but merely offered testimony that the State's methods differed from Blue Cross. [31] As an additional ground supporting the conclusion, HEW's principal decision makers testified to their belief, based on long experience with the hospital industry, that the industry was inefficient. While Budoff's and Coughlin's testimony credibly describes some of the thoughts they may have had when they considered the cost data, the evidence conclusively establishes that with regard to the reasonable reimbursement criterion, HEW's conclusion rested primarily, if not entirely, on the small size of the impact relative to total actual cost and the availability of appeal. Because we find the conclusion justifiable on these grounds alone, there is no need to decide whether the hospital industry may be accurately described as inefficient. [32] The hospitals also contend that HEW's approval of the appeals system was faulty because the system provided that the State budget director could veto awards won on appeal. We earlier held, Hospital Association of New York State, Inc. v. Toia, supra, 438 F.Supp. at 875-76, and now reiterate, that if the State budget director exercises his veto power illegally (that is to say, in contravention of the State plan or the Medicaid statute and regulations), that exercise would raise a compliance issue. The mere fact that the veto power existed does not invalidate HEW's approval. [33] There is some question whether PX-1 at 51-52 is technically part of the plan, although, as the court observed, (Tr. 1300), the dispute is largely semantic (see generally, Tr. 1297-1310). The outline was not submitted under the proper cover, an "OPC 11" form, and Coughlin testified on deposition that it was not officially part of the plan, (Tr. 1298, 2884-90) (he changed his testimony at trial; Tr. 1300-01, 1309-10). Whether or not technically part of the plan, the outline was treated as such by both HEW (Tr. 1301, 1304) and the State, as is apparent from the Diehl letter quoted above, which, in pertinent part, reads ". . . the enclosed should make it possible for you to approve [the amendments] effective this date." (PX-1 at 50) [*] (emphasis supplied) [34] George Meitch, who had 17 years experience with the New York State health program, and substantial experience with the appeals bureau (Tr. 1452-53), testified that he never heard of an appeal failing for lack of information (Tr. 1520). [35] This is a logical requirement, since information relevant to appeals originates from the hospitals themselves. For example, the hospitals argue that comparative patient-mix data was crucial for appeals and the State ought to have provided it. However, Ginsburg testified that "every hospital in New York has information in its medical records as far as what the diagnosis of each patient is . . ." (Tr. 3569-70). Obviously, the most efficient way to get that information is to seek it directly from the members of the peer group. The hospitals recognized this, but, recognizing that collection would be time consuming, wanted the State to assume the burden. (Tr. 1342-45) [36] The approved plan was also believed to encourage efficiency by comparing a hospital's costs to those of its peer group (Tr. 116, 2261; see also, id. at 762-63, 765). The hospitals attacked this conception on the grounds that, as HEW itself conceded (Tr. 957, 3006-07), there is no absolute definition of efficiency. The argument fails, however, since HEW's view was that the nature of the plan permitted relative judgments as to efficiency. Such judgments may be made even in the absence of an absolute measure.

706 So.2d 611 (1998) STATE of Louisiana v. Curtis Lee KYLES. No. 97-K-2660. Court of Appeal of Louisiana, Fourth Circuit. January 21, 1998. *612 Harry F. Connick, District Attorney, Margaret Lagattuta, Assistant District Attorney, New Orleans, for Respondent. Denise LeBoeuf, Nicholas J. Trenticosta, New Orleans, and Michael S. Fawer, Smith, Jones & Fawer, Covington, for Relator. Before ARMSTRONG, PLOTKIN and WALTZER, JJ. WALTZER, Judge. Relator seeks review of the trial court's denial of his Motion to Bar a Fifth Trial. In the interest of clarity a brief recitation of the litigation history is necessary. On 8 December 1984 Relator was convicted of first degree murder, and he was subsequently sentenced to death. His conviction and sentence were affirmed on appeal. State v. Kyles, 513 So.2d 265 (La.1987), cert. den. Kyles v. Louisiana, 486 U.S. 1027, 108 S.Ct. 2005, 100 L.Ed.2d 236 (1988). Relator sought post conviction relief in both the State and Federal Courts. On 19 April 1995 the United States Supreme Court reversed his conviction and sentence and remanded the case for further proceedings. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). After a multitude of pretrial motions, hearings, and writ applications, Relator was brought to trial in an ad hoc section of the Criminal District Court, the Honorable Charles Ward presiding. After a two week trial, a mistrial was declared on 18 October 1996 because the jury was hopelessly deadlocked. The case was continued without date pending a meeting between the prosecution and the defense to select a new trial date. On 14 November 1996 the case was returned to Section "G" of the Criminal District Court, where the trial judge was forced to recuse himself. The case was reallotted to Section "C" of the Criminal District Court, but that judge also declined to try the case. In April 1997, the Supreme Court appointed a new ad hoc judge. Relator's fourth trial commenced on 2 September 1997 before Judge Mansour. On 14 September 1997, the court declared a mistrial because the jury was hopelessly deadlocked. On 24 September 1997, the Supreme Court appointed a new ad hoc judge, the Honorable Robert Burns. Both the prosecution and the defense filed various motions before Judge Burns, many of which had previously been filed and ruled upon by prior judges.[1] RELATOR'S MOTION TO BAR A FIFTH TRIAL In this writ application, Relator seeks review of the trial court's ruling of 31 October 1997, denying his pleading styled "Motion to Bar a Fifth Retrial." When the motion was presented in the trial court, testimony was presented from Professor Bennett Gerhman, an expert in prosecutorial ethics and conduct. The Court denied the motion after considering the evidence and memoranda that had been submitted.[2] Before we consider the ruling of Judge Burns, we have perused the docket master of this case. The docket and entries show that the issue of barring a retrial had been heard and denied prior to the appointment of Judge Burns. More particularly, the docket master shows that just prior to the last trial in September of 1997, the defense filed a "Motion to Bar Re-Trial on Double Jeopardy Grounds." Judge Mansour denied the motion; Relator noted an objection and was given until 3 September 1997 to file a writ. The defense did not do so. *613 Thereafter, on 14 September 1997, when the jury was unable to reach a verdict, the trial court examined the jury and declared a mistrial. Relator at that time "re-urged" the defendant's motion to preclude prosecution. The trial court denied the motion. Relator once more noted an objection and was given until 15 September 1997 to file a writ application. The defense did not do so. In the instant writ application, Relator makes no mention of the prior motions. Additionally, during the September 1997 trial, the defense filed an emergency writ in which Relator urged that a mistrial should be ordered because of the "egregious violations of prosecutorial misconduct in the form of subornation of perjury, the withholding of other evidence favorable to Mr. Kyles, and the improper questioning by the prosecutor." Two of the violations alleged in that writ, the testimony of Isaac Smallwood and improper questions posed to a witness regarding Professor Gerard Rault's relationship to executed murderer Sterling Rault, were the subject testimony by Professor Gerhman. This Court denied the writ stating that the defendant would have an adequate remedy on appeal if convicted. State v. Kyles, 97-2024 (La. App/ 9/11/97) unpub. DOUBLE JEOPARDY, DUE PROCESS AND PROSECUTORIAL MISCONDUCT Relator's argument to this Court is that double jeopardy, due process, and fundamental fairness mandate that he not be retried where prosecutorial misconduct has continued throughout the proceedings. However, as to the double jeopardy argument, Relator did not timely file a writ of review after the issue was decided adversely to him. Furthermore, the jurisprudence is almost uniform that double jeopardy does not bar a retrial if the mistrial was manifestly necessary because of a truly deadlocked jury. See Berch & Berch, Hung Juries: A Proposed Rule to Control Judicial Discretion, 30 Loy. L.A.L.Rev. 535 (1997). As to the prosecutorial misconduct issues, the trial court found that mistrial was not warranted as the result of the prosecutor's conduct during the trial, and this Court found that exercise of our supervisory jurisdiction was not warranted. FUNDAMENTAL FAIRNESS—INHERENT POWER OF THE TRIAL COURT The only new issue posed by this writ is a general claim that fundamental fairness requires that the defendant not be tried for a fifth time.[3] Courts in other states have prevented retrials after juries deadlocked more than once pursuant to the exercise of a general inherent power of their courts to administer justice. See State v. Abbati, 99 N.J. 418, 493 A.2d 513, 515 (1985), State v. Moriwake, 65 Haw. 47, 647 P.2d 705, 708 (1982), and State v. Witt, 572 S.W.2d 913 (Tenn.1978). The court in Witt summarized the relief as follows: We do not think that the relief applicable here can be accurately labelled double jeopardy, cruel and unusual punishment or due process, However, we think that trial judges have the inherent authority to terminate a prosecution in the exercise of a sound judicial discretion, where, as here, repeated trials, free of prejudicial error, have resulted in genuinely deadlocked juries and where it appears that at future trials substantially the same evidence will be presented and the probability of continued hung juries is great. State v. Witt, 572 S.W.2d at 916. The court further found that "[r]equiring defendants to face additional juries with the continuing prospect of no verdict offends traditional notions of fair play and substantial justice." Id. The court's language in Witt is applicable to the instant writ, because Louisiana courts possess the same inherent authority, and the trial court judge correctly so held in his judgment denying the Motion to Bar a *614 Fifth Trial. Cf. Sullivan v. State, 874 S.W.2d 699 (Tex.App. 1st Dist.1994), in which the court found that Texas courts have no general authority, whether written or not, inherent or implied, to dismiss a case without a prosecutor's consent. The prosecution in its response to this writ argues that Louisiana courts, like Texas courts, have no inherent power to dismiss the case. The trial court at the 31 October 1997 hearing found that it did, but "decline[d] the invitation" to do so. The trial court's finding that it possessed the inherent authority to dismiss the prosecution is correct because La.C.Cr.P. art. 17 states: A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including the authority to issue such writs and orders as may be necessary or proper in aid of its jurisdiction. It has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done. A court has the power to punish for contempt. In State v. Mims, 329 So.2d 686, 688 (La. 1976), citing Article 17, the Court recognized that "[w]here the law is silent, it is within the inherent authority of the court to fashion a remedy which will promote the orderly and expeditious administration of justice." The Court specifically noted that the trial court had the authority to dismiss a case without prejudice when the prosecution was unwilling or unable to proceed with trial after having announced its readiness to do so. Because the Court has the inherent authority to bar a retrial so that fundamental justice is done, the cases relied upon by Relator make clear that such a decision is a matter of sound judicial discretion by the trial court who heard the evidence, polled the juries, and is in the best position to know at what point "enough is enough". Furthermore, the trial court must give deference to the prosecution's choice to continue the prosecution. State v. Sauve, 164 Vt. 134, 666 A.2d 1164(1995). The factors adopted in other jurisdictions to be considered in the trial court's decision are: 1) the number of prior mistrials and reasons for them; 2) the character of the prior trials and similarity of evidence presented; 3) the likelihood of any substantially different result at a new trial; 4) the trial court's own evaluation of the strength of the parties' cases; 5) the conduct and diligence of counsels; 6) the seriousness of the offense; 7) the public's concern for the effective and definitive conclusion of criminal prosecutions; 8) the status of the defendant; and 9) the impact of retrial upon the defendant in terms of untoward hardship and unfairness. Sauve, 666 A.2d at 1167. We note that in this case Judge Mansour, who heard the testimony at the last trial, refused to bar a retrial, both before and after that trial. The 31 October 1997 ruling by the now presiding judge is in accord with that ruling. CONCLUSION Louisiana courts have the inherent authority to dismiss a prosecution on the basis of fundamental fairness, but a trial court's decision not to do so should not be reversed absent a gross abuse of discretion. We cannot say that there has been such an abuse of discretion by the two trial judges, one of whom presided over the most recent trial, who have refused to bar further prosecution, especially in light of Judge Burn's decision not to suppress the purported confession which Relator allegedly made to inmate Chris Alphonso in 1989. This evidence was unknown prior to the last two trials and will be evidence not previously presented to any jury. ACCORDINGLY, SUPERVISORY WRITS OF REVIEW ARE GRANTED, THE JUDGMENT OF THE TRIAL *615 COURT IS AFFIRMED AND RELIEF IS DENIED. NOTES [1] Only one motion is clearly new. That motion pertains to a confession which the Relator allegedly made at the State Penitentiary in Angola in 1989. The inmate witness, Chris Alphonso, did not advise the prosecution of the purported confession until after the last mistrial. A hearing on that matter has been held; no writs have been filed to date. [2] The trial judge stated: "... I have a motion to bar this future trial. That motion is denied. I consider this to be a separation of powers issue. The District Attorney of this parish is duly elected by our constitution to have certain powers. He is elected to retry Curtis Lee Kyles. I believe that I have the power, the inherent power, to bar this trial but after considering the evidence I've heard and the extensive memorandum that's been submitted, I decline the invitation to bar the next trial." [3] The prosecution suggests in its response that the upcoming trial is only the defendant's third, not fifth, retrial. Relator's first trial resulted in a hung jury. The second trial a week later resulted in conviction and the death penalty. That conviction was reversed by the United States Supreme Court because of Brady violations by the prosecution. The next two trials also ended in mistrials when the jury deadlocked. Whether this is the defendant's "fifth retrial" or "third retrial" does not change the fact it is his FIFTH TRIAL.

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 11-1743 _____________ CHARLES MCNAIR; THEODORE AUSTIN; DANIELLE DEMETRIOU; USHMA DESAI; JULIE DYNKO, Appellants v. SYNAPSE GROUP INC. _______________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 06-cv-5072) District Judge: Hon. Jose L. Linares _______________ Argued January 10, 2012 Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.  (Filed: March 6, 2012) _______________ Paul Diamond 1605 John Street - #102 Fort Lee, NJ 07024 Gary S. Graifman [ARGUED] Kantrowitz, Goldhamer & Graifman 747 Chestnut Ridge Road - #200 Chestnut Ridge, NY 10977 Michael S. Green Green & Associates 522 Route 18 - #5 P.O. Box 428 East Brunswick, NJ 08816 Counsel for Appellants Geoffrey W. Castello, III Lauri A. Mazzuchetti Vincent P. Rao, II Kelley, Drye & Warren 200 Kimball Drive Parsippany, NJ 07054 Thomas E. Gilbertsen [ARGUED] Veneble 575 7th Street, N.W. Washington, DC 20004 Counsel for Appellee _______________ 2  OPINION OF THE COURT _______________ JORDAN, Circuit Judge. A group of former customers (collectively, “Appellants” or “the named plaintiffs”) of Synapse Group Inc. (“Synapse”) successfully petitioned under Federal Rule of Civil Procedure 23(f)1 for interlocutory review of an order denying class certification. More specifically, Appellants challenge the decision of the United States District Court for the District of New Jersey to deny certification of a Rule 23(b)(2) injunctive relief class consisting of Synapse customers who received automatic renewal notifications in connection with magazine subscriptions obtained through Synapse. Because we conclude that Appellants, none of whom are current Synapse customers, lack standing to seek the remedy they are pursuing on behalf of the class, we will affirm the District Court’s order denying class certification. 2 1 That rule provides that “[a] court of appeals may permit an appeal from an order granting or denying class- action certification … if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered.” Fed. R. Civ. P. 23(f). We will hereafter refer to the Federal Rules of Civil Procedure simply as “Rules.” 2 Appellants have moved to file Volume IV of the appendix and their reply brief under seal because some of the materials therein were produced under a confidentiality order and filed under seal in the District Court. Appellants, however, have failed to limit the scope of their request by asking us to seal only those materials that are actually the subject of the confidentiality order, and we will therefore 3 I. Background A. Synapse’s Magazine Sales Synapse, a wholly-owned subsidiary of Time Inc. (“Time”), is the largest marketer of magazine subscriptions in the United States. It conducts its business operations under several other names, including Magazine Direct, New Sub Magazine Services, SynapseConnect, Synapse Solutions, and CAP Systems. Aiming to “bring magazine publishers and potential subscribers together by promoting trial offers that might evolve into long-term subscriptions,” Synapse markets over 800 magazines to consumers through “credit card issuers, catalogers, retailers, airlines, and internet companies.” (App. at 643.) deny their request, without prejudice to their submitting an appropriately limited motion. See L.A.R. 30.3(b) (2008) (“Records sealed in the district court … must … not be included in the paper appendix.”); see also Couch v. Bd. of Trs. of Mem’l Hosp. of Carbon Cnty., 587 F.3d 1223, 1245 n.25 (10th Cir. 2009) (denying “the parties’ motions to seal both the record on appeal and their briefs” because “[t]he court’s business is public business”); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785 (3d Cir. 1994) (“Disturbingly, some courts routinely sign orders which contain confidentiality clauses without considering the propriety of such orders, or the countervailing public interests which are sacrificed by the orders.”). To the extent we have not already relied on the materials filed under seal in setting forth the facts of this case, we will delay the effective date of this denial for two weeks, to allow Appellants an opportunity to prepare a properly redacted filing. 4  The majority of Synapse’s magazine subscriptions are offered under what is known as a “continuous service plan” whereby a customer’s subscription does not expire unless and until the customer opts to cancel it. To secure subscribers to those plans, Synapse offers introductory promotional offers under which customers can receive magazine subscriptions for free or at greatly reduced rates. Although the offers are varied, all customers provide a credit or debit card number upon signing up and are informed that, once the promotional rate expires, their card will be charged at the regular subscription rate, unless the subscription is cancelled. 1. Synapse’s Advance Notification of Future Charges Prior to processing charges for the promised rate increase, however, Synapse provides its customers with advance notice. That notice, made in accordance with the terms of Synapse’s initial offer, explains the impending charge for continued services and provides a toll-free telephone number for the customer to call to cancel his or her magazine subscriptions. Before 2009, Synapse provided the majority of those notifications by sending its customers a sealed double postcard with a visible exterior and a concealed interior (the “Standard Postcard”). The front of the Standard Postcard’s exterior was addressed to the customer and contained no other text besides a return address. The back of the Standard Postcard’s exterior appeared as follows: 5 (App. at 507.) The Standard Postcard’s interior, which, again, was only visible if opened, stated the names of the magazines subscribed to, the number of issues ordered, the cost of the automatic renewal, and a toll-free number for customers to call to cancel their magazine subscriptions, if they so desired. Synapse’s market testing demonstrated that an explicit statement on the exterior of the Standard Postcard that it was an “automatic renewal notice” or an “automatic magazine renewal” would increase the number of pre-billing cancellations. For example, adding the words “Your Automatic Magazine Renewal Notice” to the front of the 6 Standard Postcard’s exterior resulted in an increase of several percentage points in pre-billing cancellations. An expert retained by Appellants took that into account in opining that the Standard Postcard was “intentionally designed to avoid giving customers notice of renewal.” (App. at 1098.) Beginning in February 2009, Synapse voluntarily began using a new, non-folded, postcard to provide its advance notifications to customers (the “Single Postcard”). Unlike the Standard Postcard, the Single Postcard contains no interior. The back of the Single Postcard has a picture of magazines in a mailbox and states that magazine subscriptions are available for up to 40% off newsstand prices. The front of the Single Postcard contains two panels. On the left side, it states in large print: “The low rate for your next year of issues is guaranteed!” (App. at 1483.) And then, in smaller print, it says: We guarantee a hassle-free subscription. You’ll never miss an issue. No bills, reminders, publisher renewal notices and no telemarketing calls. We do the work for you by automatically extending your subscription each year for as long as you want your selections. Your service includes convenient home delivery and huge savings off the newsstand price. We guarantee to send you advance notice every year about your next subscription period and rates. We will send you notice that spells out: your guaranteed low rate, your 7  number of issues and when your credit card will be charged. If you don’t wish to continue, you can simply cancel before your new term begins. We guarantee you outstanding savings. As a Valued Subscriber, enjoy substantial savings off cover price. For more great deals, visit www.magazineoutlet.com. (Id.) On the right side, the following appears: Thank you for being a valued customer. We hope you have been enjoying your service, as your complete satisfaction is our ultimate goal. For your convenience, we will continue to ensure that you don’t receive extra unwanted mail – the multiple renewal notices and bills that normally come with a subscription. For the next term of issues the credit card you previously provided for your selections and will be charged for [magazine title], at $[price] … . If you do not wish to continue, call 800 927 9351 by [date] and no charge will appear. As long as you are satisfied, your selections will continue through our open-ended, customer- friendly subscription method – continuous service. Of course, we will always send you a courtesy reminder before you are ever billed to ensure your satisfaction. Remember, you can always look for the expiration date on your magazine label. You may cancel anytime and receive a refund of unserved issues. If a title ceases, it will be replaced with one of equal or 8  greater value. We hope you enjoy your selections and look forward to serving you in the future. Please keep this notice for your records. (Id.) Appellants’ expert reviewed Synapse’s Single Postcard and concluded that it, like the Standard Postcard, is “an exercise in deception” inasmuch as it provides scant information and is designed to appear like a direct mail offer for a new subscription rather than an automatic renewal notice for an existing subscription. 3 (App. at 1495.) 3 Appellants believe that Synapse’s use of the Standard Postcard and Single Postcard violates accepted standards in the publishing industry, as evidenced by an agreement between Synapse’s parent company, Time, and 23 states’ Attorneys General. That agreement, known as the Assurance of Voluntary Compliance or Discontinuance (the “Assurance”), provides that Time and its wholly-owned subsidiaries must send continuous-service-plan customers advance notification reminders that clearly and conspicuously identify the relevant terms concerning automatic renewals. Although Appellants acknowledge that Synapse is not bound by the Assurance because it did not become a wholly-owned subsidiary of Time until after the Assurance was signed, they contend that the Assurance demonstrates that there are governing industry standards which Synapse is knowingly violating by using deceptive advance notification reminder mailings. 9  2. Synapse’s Cancellation Process As detailed above, while the effectiveness of the message may be open to dispute, both the Standard Postcard and the Single Postcard state that a customer will be automatically charged a renewal rate if the customer does not cancel his subscription before a certain date. If a customer’s subscription is not timely cancelled, however, the customer can still seek a complete or pro rata refund. There are at least two ways to reach Synapse to request cancellation or seek reimbursement of an unwanted automatic renewal charge. The customer may either call the number listed on the advance notification mailing, or he may call a toll-free number that is automatically listed on his credit or debit card statement when a charge is submitted by Synapse. While the toll-free number that appears on a customer’s billing statement differs from the phone number that appears on Synapse’s advance renewal notices, both lead customers to Synapse’s Interactive Voice Recognition (“IVR”) telephone system. That system is meant to be entirely automated, so that a caller will not ordinarily interact with a human being, but the IVR usually does permit customers to reach a live operator by pressing zero or failing to respond to the IVR’s prompts. When a customer attempts to cancel his magazine subscriptions using the IVR system, the IVR attempts to retain that business by presenting so- called “save offers.” On average, approximately 30% of callers accept a save offer. The remaining 70% of Synapse customers who call to cancel end up doing so, and most are, in fact, able to accomplish that without speaking with a live operator. 10  B. Procedural History Appellants, who are “residents” 4 of New Jersey, New York, or the District of Columbia, received the Standard Postcard when they were Synapse customers and brought suit against Synapse after allegedly suffering monetary injury as a result of Synapse’s deceptive business practices. 5 4 In their second amended complaint, the operative pleading in this case, Appellants refer to themselves as “residents” of their respective states, not as “citizens” or “domiciliaries” of those states. (See, e.g., App. at 293 (“McNair is a resident of … New Jersey … having a place of residence in … New Jersey.”).) Although those averments need not, and do not, serve as a basis for our disposition, they are jurisdictionally inadequate in this diversity of citizenship case. See Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972) (“[M]ere residency in a state is insufficient for purposes of diversity [of citizenship].”). So too is Appellants’ allegation of Synapse’s citizenship, which, instead of identifying Synapse’s principal place of business and state of incorporation, refers only to “a” principal place of business. (App. at 294); see 28 U.S.C. § 1332(c)(1) (“[A] corporation shall be deemed to be a citizen of every State … by which it has been incorporated and of the State … where it has its principal place of business … .”); J & R Ice Cream Corp. v. Cal. Smoothie Licensing Corp., 31 F.3d 1259, 1265 n.3 (3d Cir. 1994) (alleging that a corporation has “‘a’ principal place of business” in a given state is insufficient to establish domicile so as to “properly plead diversity jurisdiction”). This lack of care in invoking the District Court’s jurisdiction is regrettable. 5 Appellants do not allege that they received Synapse’s 11  1. Appellants’ Initial Motion for Class Certification On June 29, 2009, Appellants moved for class certification based on a prior iteration of their complaint, which pleaded consumer fraud claims for monetary and injunctive relief under New Jersey, New York, and District of Columbia law. McNair v. Synapse Grp., Inc., No. 06-cv-5072, 2009 WL 1873582, at *8, *12 (D.N.J. June 29, 2009). Specifically, Appellants asked the District Court to certify the following class under Rules 23(b)(2) and (b)(3): From October 23, 2000 to the date of the order certifying the class, all persons residing in New Jersey, New York and the District of Columbia who accepted an initial magazine subscription, or subscriptions, offered by Synapse, were sent [the Standard Postcard] notification with the “standard exterior” in advance of an automatic charge for an additional term or renewal of their subscription(s), and either before or after being charged for the additional term or renewal of their subscription(s): (1) called the Synapse “IVR,” and responded affirmatively to the recorded question asking whether they were calling to cancel a magazine or selected an option to cancel a magazine from the list of options presented, and rejected all “save attempts” that may have been offered; or, new Single Postcard. 12  (2) fully cancelled the subscription(s) by speaking with a Synapse live operator; and, were not refunded all charges for the additional term or renewal of the magazine subscription(s) and/or were not reimbursed upon request to Synapse all bank overdraft charges, on their debit or credit card(s). Excluded from the class are defendant, its agents and affiliates, and any government entities. Id. at *6 (quoting Appellants’ Reply Mem. of Law in Support of Class Cert.). The District Court denied the motion. Observing that Appellants’ various consumer fraud claims required a causal link between the plaintiffs’ alleged injuries and the defendant’s alleged deception, the District Court concluded that predominance was lacking because it could not be presumed that all of the class members were deceived by Synapse’s marketing techniques. Id. at *12. In fact, the Court noted that two of the five named plaintiffs were not deceived by the Standard Postcard, as they “read … and acted on it.” Id. Accordingly, as the District Court held, a Rule 23(b)(3) damages class could not be certified. The District Court also rejected Appellants’ request for certification as an injunctive relief class under Rule 23(b)(2), reasoning that “the predominant relief sought … [was] money damages,” and “certification under Rule 23(b)(2) [was therefore] not appropriate.” Id. at *7. The Court stated, however, that “[a] differently defined class or one that does not predominantly seek money damages may pass muster.” Id. at *14. 13  2. Appellants’ Motion to File an Amended Complaint Appellants did not challenge the District Court’s decision denying their initial motion for class certification. Instead, on August 10, 2009, they filed a motion proposing a revised complaint that sought injunctive relief only. See McNair v. Synapse Grp., Inc., No. 06-cv-5072, 2009 WL 3754183, at *1 (D.N.J. Nov. 5, 2009). Synapse opposed the new complaint on several grounds, arguing that, under Article III of the United States Constitution, Appellants lacked standing because they were no longer Synapse customers and therefore could not claim a likelihood of future injury. See id. at *3 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)). Synapse also argued that Appellants lacked statutory standing under New Jersey law because their amended complaint abandoned all claims for monetary relief. 6 See id. at *4-5 (citing Weinberg v. Sprint Corp., 801 A.2d 281, 291 (N.J. 2002), for the proposition that Appellants lacked statutory standing because Appellants failed to plead “any claim for ascertainable, money, loss”). Appellants responded that they have Article III standing to seek injunctive relief because they are likely to be 6 Synapse did not lodge a similar argument with respect to Appellants’ claims under New York and District of Columbia law. They did, however, argue that Appellants’ requested amendment would, as a whole, be futile because the proposed class failed to meet the standards necessary for certification. The District Court rejected that contention, reasoning that “any ruling on whether class certification is warranted is premature.” Synapse, 2009 WL 3754183, at *5. 14 Synapse customers in the future. The District Court agreed with that theory. Although it acknowledged that none of the named plaintiffs claimed to be current Synapse customers, the Court decided that they had made a “sufficient showing that they are likely to become Synapse customers in the future” because Synapse is the leading marketer of magazine subscriptions and offers compelling magazine deals in which it does not clearly identify itself as the distributor. Id. at *4. The District Court further concluded that the named plaintiffs were likely to suffer from the alleged deception again because “the whole point of” the advance notification renewal postcards is to fool consumers into discarding it. Id. However, because Appellants’ complaint had abandoned claims for monetary relief, the District Court agreed with Synapse that Appellants lacked statutory standing to seek injunctive relief under New Jersey law. Id. at *5. 3. Appellants’ Second Amended Complaint and Motion for Class Certification Appellants filed a timely motion for reconsideration on November 17, 2009, apprising the Court that they had, in fact, intended to seek monetary relief in their amended complaint – albeit only on behalf of themselves individually – and that they therefore had statutory standing to seek injunctive relief under New Jersey law. The District Court, over Synapse’s objection, entered an order permitting Appellants to again amend their complaint for the purpose of clarifying their assertion of individual claims for monetary relief. Appellants did so on December 31, 2009, filing a second amended complaint (the “Complaint”), 7 which is the operative pleading 7 Appellants second amended complaint is actually the 15 before us on this appeal and which asserts three separate consumer fraud claims under New Jersey, New York, and District of Columbia law. It seeks both monetary and injunctive relief for the individual Appellants but only injunctive relief for class members. On June 18, 2010, Appellants moved for class certification under Rule 23(b)(2), asking the District Court to certify the following class: All persons residing in New Jersey from October 23, 2000 to the date of the order certifying the class, and all persons residing in New York and the District of Columbia from fifth iteration of Appellants’ pleading filed on the District Court’s docket over the course of this litigation. The first complaint, filed on October 23, 2006, named only Charles McNair as a plaintiff. The second, filed on August 2, 2007, added Theodore Austin, Danielle Demetriou, Steven Novak, Rod Bare, Ushma Desai, and Julie Dynko as named plaintiffs. The third, submitted for the District Court’s review by way of Appellants’ August 10, 2009 motion to file an amended complaint, dropped Bare and Novak as plaintiffs. The fourth, submitted by way of Appellants’ November 17, 2009 motion for reconsideration, added requests for monetary relief on behalf of the named plaintiffs remaining in Appellants’ third complaint. The fifth and final complaint was filed on December 31, 2009, after the District Court granted Appellants’ November 17 motion to reconsider and afforded them an opportunity to prepare another version of the complaint. 16  October 23, 2003 to the date of the order certifying the class, who as customers of Synapse were mailed a postcard advance notification of an automatic charge for an additional term or renewal of their magazine subscription(s) that failed to state that he or she is an Automatic Renewal Customer or is subject to an automatic charge, in type larger and more prominent than the predominant type in the notice. Excluded from the class are defendant, its agents and affiliates, and any government entities. (App. at 485.) Appellants also sought to certify two subclasses: All members of the Class who were sent Defendant’s [Standard Postcard] as the advance notification of an automatic charge for an additional term or renewal of their subscription(s). …. Members of the Class for whom the postcard and/or billing descriptor on their credit card or bank statement provided a telephone number to an IVR that did not audibly state how to transfer to a live operator. (Id.) The District Court denied Appellants’ motion on November 15, 2010, holding that the putative class lacked the 17 requisite cohesion for purposes of Rule 23(b)(2). See McNair v. Synapse Grp., Inc., No. 06-cv-5072, 2010 WL 4777483, at *7-8 (D.N.J. Nov. 15, 2010). According to the Court, certification was inappropriate because the injunctive relief sought would not “benefit the entire class” since Synapse’s conduct did not affect all class members in a similar way. Id. at *7; see id. at *6 (“Plaintiff McNair testified that he read the card and understood it … . For class members like Mr. McNair, the relief requested would have no benefit.”). Appellants were granted interlocutory appellate review pursuant to Rule 23(f), and this appeal followed. 8 8 Before seeking interlocutory appellate review, Appellants asked the District Court to reconsider its order denying class certification. The District Court denied that motion. McNair v. Synapse Grp., Inc., No. 06-cv-5072, 2011 WL 666036 (D.N.J. Feb. 14, 2011). Appellants thereafter filed their Rule 23(f) petition, which was timely as measured from the order denying reconsideration, but untimely as measured from the order denying class certification. We granted Appellants’ petition, concluding – as our sister circuits have – that the period for filing a Rule 23(f) petition “does not start to run until the district judge rules on [a timely] motion for reconsideration” of a class certification order. Shin v. Cobb Cnty. Bd. of Educ., 248 F.3d 1061, 1064- 65 (11th Cir. 2001); see Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 837 (7th Cir. 1999) (holding that, although Federal Rule of Appellate Procedure 4(a)(4) does not toll the time to appeal an interlocutory order, a timely-filed motion for reconsideration of a class certification order nevertheless “defers the time for appeal until after the district judge has disposed of the motion”). 18 II. Discussion 9 As it did before the District Court, Synapse argues that Appellants lack Article III standing to pursue injunctive relief. If Synapse is correct, Appellants are not entitled to represent the putative Rule 23(b)(2) class they asked the District Court to certify. See, e.g., Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000) (“It should be obvious that there cannot be adequate typicality between a class and a named representative unless the named representative has individual standing to raise the legal claims 9 The District Court had jurisdiction, if at all, pursuant to 28 U.S.C. § 1332(d)(2)(A), which permits district courts to exercise “original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which … any member of a class of plaintiffs is a citizen of a State different from any defendant.” We have appellate jurisdiction under 28 U.S.C. § 1292(e) and Rule 23(f), and review the District Court’s order denying certification for an abuse of discretion. Behrend v. Comcast Corp., 655 F.3d 182, 189 (3d Cir. 2011). Our review is plenary, however, to the extent a threshold question of law, such as Article III standing, bears on our review of that order. See Gen. Instrument Corp. of Del. v. Nu-Tek Elecs. & Mfg., Inc., 197 F.3d 83, 86 (3d Cir. 1999) (“We exercise plenary review of standing … .); see also Cole v. Gen. Motors Corp., 484 F.3d 717, 721 (5th Cir. 2007) (reviewing a certification order under Rule 23(f), and observing that the standing inquiry “is a question of law that [is] review[ed] de novo”). 19 of the class.”). We thus consider whether Appellants have standing to seek injunctive relief for the class. 10 In order to have Article III standing to sue, a plaintiff bears the burden of establishing “(1) [an] injury-in-fact … that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3) [a likelihood] … that the injury will be redressed by a favorable decision.” Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 290-91 (3d Cir. 2005); see N.J. 10 Although the scope of our Rule 23(f) appellate review is limited, see McKowan Lowe & Co., Ltd. v. Jasmine, Ltd., 295 F.3d 380, 390 (3d Cir. 2002) (observing that “Rule 23(f) inquiries” are limited “to class certification issues”), we join our sister circuits in considering Article III standing as a necessary threshold issue to our review of an order denying class certification. See Lindsay v. Gov’t Emps. Ins. Co., 448 F.3d 416, 420 (D.C. Cir. 2006) (stating that constitutional standing may be considered in an appeal under Rule 23(f)); Olden v. LaFarge Corp., 383 F.3d 495, 498 (6th Cir. 2004) (“The question of subject matter jurisdiction is a prerequisite to class certification and is therefore properly raised in this Rule 23(f) appeal.”); City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002) (“[A] determination on standing is a part of the class certification analysis, and thus, subject to review under Rule 23(f).” (citation and internal quotation marks omitted)); Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290, 294 (5th Cir. 2001) (“Standing is an inherent prerequisite to the class certification inquiry; thus, despite the limited nature of a Rule 23(f) appeal, defendants can raise the issue of standing … .”). 20 Physicians, Inc. v. President of U.S., 653 F.3d 234, 241 (3d Cir. 2011) (affirming dismissal for lack of standing because the plaintiffs failed to meet “their burden in pleading facts that establish the requisite injury in fact and therefore fail[ed] to demonstrate standing”). When, as in this case, prospective relief is sought, the plaintiff must show that he is “likely to suffer future injury” from the defendant’s conduct. Lyons, 461 U.S. at 105. In the class action context, that requirement must be satisfied by at least one named plaintiff. See Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”); O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (“[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.”); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 978 (9th Cir. 2011) (“Standing exists if at least one named plaintiff meets the requirements.”). The threat of injury must be “sufficiently real and immediate,” Roe v. Operation Rescue, 919 F.2d 857, 864 (3d Cir. 1990) (citation and internal quotation marks omitted), and, as a result of the immediacy requirement, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief … if unaccompanied by any continuing, present adverse effects,” O’Shea, 414 U.S. at 495-96; see Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (“To seek injunctive relief, a plaintiff must show that he is under threat of suffering ‘injury in fact’ … .” (emphasis added)); Lyons, 461 U.S. at 105 (“Lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury … .”). 21  Pointing to the fact that Appellants are no longer customers, Synapse argues that they have no cognizable interest in the prospective relief sought in the Complaint. Appellants, in response, press the same arguments for standing that they made to the District Court, namely, that they are subject to a sufficiently real and immediate threat of future harm because Synapse is the leading marketer of magazine subscriptions and bombards the public with its offers; because it offers compelling deals in which it does not clearly identify itself; and because it sends customers advance notifications that are, by design, meant to fool consumers into discarding the notification received. Appellants further respond that they have accepted magazine offers from Synapse on more than one occasion. The District Court accepted those arguments and also seemed to agree with Appellants that the “capable of repetition yet evading review” doctrine applies, 11 because holding otherwise would unfairly “require [Appellants] to allow themselves to be continually billed for unwanted renewals either before or during the course of the litigation merely for standing purposes.” 11 Although federal courts generally “lack jurisdiction when ‘the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome,’” Merle v. United States, 351 F.3d 92, 94 (3d Cir. 2003) (citation and internal quotation marks omitted), the “capable of repetition yet evading review” doctrine permits consideration of a case that “would otherwise be deemed moot” when “‘(1) the challenged action is, in its duration, too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again,’” id. (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). 22 Synapse, 2009 WL 3754183, at *4 (internal quotation marks omitted). We disagree, and conclude that Appellants have not met their burden of establishing that they have standing to seek injunctive relief. Appellants have effectively acknowledged that they, unlike the class members they seek to represent, are not Synapse customers and are thus not currently subject to Synapse’s allegedly deceptive techniques for obtaining subscription renewals. 12 (See App. at 316 (alleging in the Complaint that “[e]ach of the named [p]laintiffs has standing to seek injunctive relief since they are likely to become magazine customers of Defendant in the future”).) Unless 12 Although the Complaint does not expressly state that Appellants are former Synapse customers, it – like Appellants’ briefing and representations at oral argument – implies as much. So does the appellate record. Indeed, with the exception of one of the named plaintiffs, Dynko, who was seemingly still a Synapse customer as of July 2008, the record reflects that none of the other named plaintiffs in this case were Synapse customers by that point. (See App. at 964 (Austin); 977 (Demetriou); 986 (Desai); 1005 (McNair).) Because the Complaint and Appellants’ ensuing class certification motion were filed over a year later, and in light of the Complaint’s failure to aver that Dynko received the Single Postcard that Synapse began using in 2009, see supra note 5, the only conclusion we can logically reach is that the one named class member who (perhaps) was a Synapse customer in July 2008 terminated her Synapse service by the time the Complaint was filed in December 2009. That, of course, occurred well before Appellants’ June 2010 motion for class certification. 23 they decide to subscribe again, then, there is no reasonable likelihood that they will be injured by those techniques in the future. They do not allege that they intend to subscribe again. Instead, they say that they may, one day, become Synapse customers once more because “Synapse’s offers are compelling propositions as evidenced by [Appellants’] own acceptance of these offers (even on more than one occasion) … .” (App. at 317.) Perhaps they may accept a Synapse offer in the future, but, speaking generally, the law accords people the dignity of assuming that they act rationally, in light of the information they possess. Cf. Atl. Gypsum Co., Inc. v. Lloyds Int’l Corp., 753 F. Supp. 505, 514 (S.D.N.Y. 1990) (rejecting the plaintiffs’ contention that “defendants advanced money to [a] venture with the intention of driving it into the ground so that they could control the failed venture and then wait in line with other creditors in a bankruptcy proceeding” because that “view of the facts defies economic reason, and therefore does not yield a reasonable inference of fraudulent intent”); John N. Drobak, Cognitive Science, in The Elgar Companion to Law and Economics 453, 453 (Jürgen G. Backhaus ed., 2d ed. 2005) (“Much of legal theory, like economics, assumes that people act rationally or at least can be induced to act rationally by the correct rules.”). Whether they accept an offer or not will be their choice, and what that choice may be is a matter of pure speculation at this point. 13 Indeed, while 13 If Appellants’ suggestion is that they may not be able to help themselves when confronted with a really good subscription offer, they have still not provided a basis for standing. Pleading a lack of self- restraint may elicit 24 the injuries Appellants allegedly suffered when they were Synapse customers may suffice to confer individual standing for monetary relief, 14 the wholly conjectural future injury Appellants rely on does not, and cannot, satisfy the constitutional requirement that a plaintiff seeking injunctive relief must demonstrate a likelihood of future harm. 15 See Lyons, 461 U.S. at 109 (observing that the plaintiff “ha[d] a sympathy but it will not typically invoke the jurisdiction of a federal court. 14 At least constitutional standing; we say nothing of statutory requirements that may or may not be met. 15 Appellants also suggest, albeit obliquely, that they might be tricked into becoming Synapse customers again because Synapse does not prominently identify itself when making its magazine offers. (See App. at 317 (“Synapse, if it identifies itself at all in these offers, does so in the fine- print.”).) However, Appellants are under no compulsion to uncritically accept magazine subscription offers. Because Appellants are familiar with Synapse’s practices as well as the various names under which it operates, it is a speculative stretch to say they will unwittingly accept a Synapse offer in the future. But even if they did, they would only be harmed if they were again misled by Synapse’s subscription renewal techniques, which would require them to ignore their past dealings with Synapse. In short, Appellants ask us to presume they will be fooled again and again. While we cannot definitively say they won’t get fooled again, it can hardly be said that Appellants face a likelihood of future injury when they might be fooled into inadvertently accepting a magazine subscription with Synapse and might be fooled by its renewal tactics once they accept that offer. 25 claim for damages … that appear[ed] to meet all Article III requirements” but that he nevertheless could not “meet[] the preconditions for asserting an injunctive claim in a federal forum”); Tucker v. Phyfer, 819 F.2d 1030, 1034-35 (11th Cir. 1987) (noting, in rejecting class certification under Rule 23(b)(2), that “a plaintiff who has standing to bring a damages claim does not automatically have standing to litigate a claim for injunctive relief arising out of the same set of operative facts” and that the plaintiff’s proposed injunctive relief class was inappropriate notwithstanding his “live claim for money damages”). Because Appellants have not established any reasonable likelihood of future injury in this case, they have no basis for seeking injunctive relief against Synapse. See Arguello v. Conoco, Inc., 330 F.3d 355, 361 (5th Cir. 2003) (customers who were subject to past discrimination by a gas station attendant lacked Article III standing to sue for prospective relief); Frankle v. Best Buy Stores, L.P., 609 F. Supp. 2d 841, 848 (D. Minn. 2009) (explaining that a former customer had no “standing to seek an injunction … because she [was] no more likely than anyone else to be impacted”); Goldstein v. Home Depot U.S.A., Inc., 609 F. Supp. 2d 1340, 1348 (N.D. Ga. 2009) (former customer of the defendant’s who did not allege “that he plans in the future to purchase a Dryer from Defendant or that he plans in the future to have a Dryer installed by Defendant” lacked standing to pursue injunctive relief on behalf of a class of consumers who might be subjected to the allegedly illegal practice); Smith v. Chrysler Fin. Co., L.L.C., No. 00-cv-6003, 2004 WL 3201002, at *4 (D.N.J. Dec. 30, 2004) (“The injury which Plaintiffs allege, that they may want to buy another Chrysler 26 in the future and may be discriminated against by Defendant, is simply too speculative … .”). Nor is Appellants’ position strengthened by the “capable of repetition yet evading review” doctrine. They argue that they “should not be required to allow themselves to be continually billed … merely for standing purposes” since “the term of a subscription purveyed by Synapse is shorter than the course of a typical litigation.” (App. at 317.) But the inescapable fact is – as Appellants’ speculation about their future actions reflects – they cannot “make a reasonable showing that [they] will again be subjected to the alleged illegality.” Lyons, 461 U.S. at 109. That means they cannot successfully invoke the “capable of repetition yet evading review” doctrine. See Spencer v. Kemna, 523 U.S. 1, 17 (1998) (stating the “capable of repetition yet evading review” doctrine applies in exceptional situations only and requires “a reasonable expectation that the same complaining party [will] be subject to the same action again” (alteration in original) (internal quotation marks omitted) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990))); Abdul-Akbar v. Watson, 4 F.3d 195, 207 (3d Cir. 1993) (“[C]onjecture as to the likelihood of repetition has no place in the application of this exceptional and narrow grant of judicial power.”). Appellants’ contention, moreover, is based on a false premise – namely, the alleged inequity in requiring them to maintain Synapse subscriptions throughout the duration of the class action litigation “merely for standing purposes.” (App. at 317.) In reality, standing is determined at the outset of the litigation, Davis v. FEC, 554 U.S. 724, 734 (2008), and Appellants would have been able to represent an injunctive relief class if they had maintained their subscriptions until 27 after moving for class certification, 16 see Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 135 (3d Cir. 2000) (“So long as a class representative has a live claim at the time he moves for class certification, neither a pending motion nor a certified class action need be dismissed if his individual claim subsequently becomes moot.”). 17 In 16 Moreover, it is not the case that the named plaintiffs’ standing to seek injunctive relief rises or falls solely with their status as Synapse customers. Appellants only needed to demonstrate that they were “likely to suffer future injury” from the Synapse’s conduct. Lyons, 461 U.S. at 105. The best way to do that, of course, would have been to show they were Synapse customers, but that is not necessarily the only way. The problem here is that Appellants provided no basis for their assertion of future harm. 17 Although Appellants’ Complaint implies that Appellants were no longer Synapse customers by December 2009, Appellants have not pleaded specific information concerning when they actually terminated their subscriptions with Synapse. See supra note 12 and accompanying text. Nor have they made any effort to establish that they faced a likelihood of future injury by Synapse at the time when their various complaints were filed. Accordingly, we have treated the justiciability question presented as one of standing, although we recognize that Appellants’ Article III problem might sound in mootness if Appellants initially had standing to seek injunctive relief but lost it before moving for class certification. See Davis, 554 U.S. at 734 (stating that “the standing inquiry [is] focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed”); Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 69 (2d Cir. 2001) (“[I]f the plaintiff loses standing … 28 addition, notwithstanding that they may prefer injunctive relief as opposed to monetary relief now that a possible injunction is their only route to class certification, the notion that Appellants might have needed to maintain their subscriptions to pursue their claims (as opposed to a specific kind of relief) is misplaced, given that no one is contesting their effort to pursue their individual claims for damages. See Lyons, 461 U.S. at 109 (“Lyons’ claim that he was illegally strangled remains to be litigated in his suit for damages; in no sense does that claim ‘evade’ review.”). during the pendency of the proceedings …, the matter becomes moot, and the court loses jurisdiction.”). However, because it is evident that none of the named plaintiffs were Synapse customers when the Complaint was filed and they did not seek or obtain class certification until after that, see supra note 12, the difference between “standing” and “mootness” is essentially a semantic one in this case, see Holmes, 213 F.3d at 135 (“So long as a class representative has a live claim at the time he moves for class certification, neither a pending motion nor a certified class action need be dismissed if his individual claim subsequently becomes moot.”). Indeed, Appellants either lack standing because they were not Synapse customers at the time they filed the relevant complaint, or lost their standing for prospective relief when they ceased being Synapse customers before seeking class certification, which results in their “claims becom[ing] moot.” PeTA, People for the Ethical Treatment of Animals v. Rasmussen, 298 F.3d 1198, 1203 (10th Cir. 2002); see Holmes, 213 F.3d at 135-36 (“If … the putative class representative’s individual claim becomes moot before he moves for class certification, then any subsequent motion must be denied and the entire action dismissed.”). 29  Because Appellants lack Article III standing to seek injunctive relief, the District Court was obliged to deny class certification under Rule 23(b)(2). III. Conclusion For the foregoing reasons, we will affirm the District Court’s order denying class certification. 18 18 Synapse argued before us that the District Court lacked statutory subject matter jurisdiction under § 1332(d) because Appellants’ averment that the value of the injunctive relief sought exceeded $5,000,000 is wholly speculative. In light of our conclusion that Appellants lack Article III standing to seek injunctive relief, we decline to address that argument. See generally Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 436 (2007) (recognizing that courts may “choose among threshold grounds for denying audience to a case on the merits” (citation and internal quotation marks omitted)). Nor do we address, given the limited nature of our review, how the District Court should proceed on remand. See Prado-Steiman, 221 F.3d at 1277-78 (observing that, outside the “Rule 23(f) context, issues of standing are normally not available for review on interlocutory appeal”). 30 

674 S.E.2d 328 (2009) CHISM v. The STATE. No. A08A2415. Court of Appeals of Georgia. January 28, 2009. *329 Shenita S. Chism, pro se. Brian Keith Fortner, Solicitor-General, Evelyn Proctor, Asst. Solicitor-General, for Appellee. SMITH, Presiding Judge. Convicted by a jury of speeding and driving a vehicle with a suspended tag, Shenita Shevaughn Chism, pro se,[1] appeals. Finding no error, we affirm. On appeal, we view the evidence in the light most favorable to the jury's verdict, and the appellant no longer enjoys the presumption of innocence. This Court does not weigh the evidence or determine witness credibility, but only determines if the evidence was sufficient for a rational trier of fact to find appellant guilty of the *330 charged offense beyond a reasonable doubt. (Citation, punctuation and footnote omitted.) Gregory v. State, 277 Ga.App. 664, 665(1), 627 S.E.2d 79 (2006). So viewed, the evidence shows that, on January 30, 2006, a Douglas County Sheriff's Deputy was conducting speed enforcement on Interstate 20, using a Pro Laser III speed detection device. He observed a white Nissan Altima which he estimated was traveling around 85 miles per hour in a 65 miles per hour zone. Activating the Pro Laser III, the deputy determined that the Altima was actually going 87 miles per hour. Upon executing a traffic stop, the deputy found Chism driving and verified that she had a suspended tag. During redirect examination of the deputy, the State tendered the 2007 and 2003 administrative orders approving the use of the Pro Laser III as a speed detection device. No objection to these documents was made by Chism. The deputy also testified that the location where he was using the laser had no area with more than a seven percent grade and that he and the laser were visible for 500 feet. 1. In her first enumeration of error, Chism contends that her prosecution was barred by the statute of limitation. OCGA § 17-3-1(d) provides that "[p]rosecution for misdemeanors must be commenced within two years after the commission of the crime." A prosecution "commences" when a charging instrument, such as an accusation, indictment, or Uniform Traffic Citation ("UTC"), is issued, State v. Rustin, 208 Ga.App. 431, 432-433(2), 430 S.E.2d 765 (1993), and "continues until there has been a final disposition of the case." Prindle v. State, 240 Ga.App. 461(1), 523 S.E.2d 44 (1999). Here, the prosecution commenced on January 30, 2006, with the issuance of the UTCs, and there was no violation of the statute of limitation. 2. Chism contends, in her second and third enumerations, that the State failed to introduce a certified copy of a list of laser devices approved by the Georgia Department of Public Safety (DPS) and failed to introduce a certificate of calibration for the laser device used by the officer. The only foundation required for the entry of evidence of speed obtained by a laser detection device is the certified copy of the DPS's list of approved laser speed detection devices, which was provided here. In the Interest of B.D.S., 269 Ga.App. 89, 91(3), 603 S.E.2d 488 (2004). Further, no objection was made by Chism to the introduction of the results of the laser detection device. This issue has therefore not been preserved for our review. Van Nort v. State, 250 Ga. App. 7, 8-9(2), 550 S.E.2d 111 (2001). 3. Chism's fourth enumeration is that the State failed to prove that the laser detection device was being used on a road with a grade of seven percent or less. No objection was made on this ground below. Van Nort, supra. Also, a review of the testimony of the sheriff's deputy shows that there was evidence that nowhere on the interstate where the deputy used the laser had a seven percent grade. 4. Although Chism argues that the trial court ignored her "request during cross-examination for a valid traffic and engineering survey," she includes no citation to the transcript where any such request was made and we find no such objection, motion, or request to this effect. This claim is therefore waived. 5. Finally, Chism contends that the trial court denied her substitute counsel after she filed a motion claiming ineffective assistance of counsel, forcing her to withdraw her motion "due to the Defendant is entitled to competent counsel[,]" and did not advise her of the dangers of proceeding pro se. On May 8, 2008, although represented by counsel, Chism filed her pro se Motion to Request Substitute Counsel or Allow Attorney to Withdraw. There is no written ruling on this motion contained in the record before us, nor is there any mention of this motion contained in the transcript. There is a notation on the motion that it was orally withdrawn *331 by Chism in open court. We find no error here. Judgment affirmed. MIKELL and ADAMS, JJ., concur. NOTES [1] Chism's brief contains no citations to the record or transcript, in violation of Court of Appeals Rule 25(a)(1). We remind Chism that "reference to the record should be indicated by specific volume or part of the record and by (R-Page Number of the Record). And where proper citations are not provided, we will not cull the record on appellant's behalf." (Citations, punctuation and footnotes omitted.) Migmar, Inc. v. Williams, 281 Ga.App. 870, 871(1), 637 S.E.2d 471 (2006).

787 N.W.2d 511 (2010) CASS KEEGO PROPERTIES LLC, Plaintiff-Appellee, v. Eric R. BRYEN and Stuart J. Snider, Defendants, and Arthur Jay Weiss and Arthur Jay Weiss & Associates, PC, Defendants-Appellants. Docket No. 140949. COA No. 295076. Supreme Court of Michigan. September 10, 2010. Order On order of the Chief Justice, a stipulation signed by counsel for the parties agreeing to the dismissal of this application for leave to appeal is considered, and the application for leave to appeal is DISMISSED with prejudice and without costs.

168 P.3d 731 (2007) D.R. HORTON, INC., A Nevada Corporation; RCR Companies; Central Valley Insulation Las Vegas, LLC; and Builder Services Group, Inc., d/b/a Central Valley Insulation, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF CLARK, and The Honorable Allan R. Earl, District Judge, Respondents, and First Light at Boulder Ranch Homeowners Association, A Nevada Corporation, Real Party in Interest. No. 47654. Supreme Court of Nevada. October 11, 2007. *734 Marquis & Aurbach and Jack Juan and Micah S. Echols, Las Vegas, for Petitioner D.R. Horton, Inc. Hansen & Rasmussen and R. Scott Rasmussen, Las Vegas, for Petitioners Central Valley Insulation Las Vegas, LLC, and Builder Services Group, Inc., d/b/a Central Valley Insulation. Quon Bruce Christensen Law Firm and James R. Christensen, Las Vegas, for Real Party in Interest. Burris, Thomas & Springberg and Andrew J. Thomas, Las Vegas, for Amicus Curiae Nevada Trial Lawyers Association. Jeanne Winkler & Associates and Jeanne L. Winkler, Las Vegas, for Amicus Curiae Safe Homes Nevada. Marquiz Law Office and Craig A. Marquiz, Henderson, for Amicus Curiae Nevada Subcontractors Association. Snell & Wilmer, LLP, and Leon F. Mead II, Las Vegas, for Amici Curiae Associated *735 General Contractors, Las Vegas Chapter, and Coalition for Fairness in Construction. BEFORE THE COURT EN BANC. OPINION By the Court, GIBBONS, J.: In this petition, we address the question of how district courts should determine the sufficiency of a pre-litigation notice of constructional defects under NRS 40.645. The parties and amici curiae[1] invite us to examine the reasonableness of a pre-litigation notice that triggers a builder's right to repair, or a claimant's right to commence suit. Today, we provide district courts with a test and guidelines to measure the sufficiency of the pre-litigation notice. Real party in interest First Light at Boulder Ranch Homeowners Association utilized a "representative sample" of constructional defects in a small number of homes as a basis for giving notice of constructional defects common throughout a development of 414 residences. According to petitioners, First Light's extrapolated notice was inadequate because it failed to provide the "reasonable detail" of defects and their location necessary to preserve for petitioners a meaningful opportunity to repair the alleged defects before suit is brought. We conclude that adequate extrapolated pre-litigation notice must have a reasonable statistical basis to describe the alleged defects and their locations in reasonable detail sufficient to afford contractors a meaningful opportunity to repair the alleged defects. Therefore, we articulate below a test to guide district courts in making written findings on whether a pre-litigation notice satisfies that threshold. So long as an extrapolated notice meets that requirement, district courts have wide discretion to determine the adequacy of a pre-litigation notice on a case-by-case basis. Since we have adopted a test to be used by the district courts, we grant this petition in part and direct the district court to reconsider the notice and make factual findings as discussed herein. FACTS The First Light at Boulder Ranch Community is located in Henderson, Nevada. Petitioner D.R. Horton, Inc., built and sold the community in twenty-six releases. The community consists of 138 buildings with three residential units in each building, totaling 414 residences. The community has three floor plans, each with two possible elevations, for a total of six different types of homes. Approximately 40 contractors and subcontractors from various trades, some of which used several work crews, were involved in constructing the community. At times, more than one subcontractor from each trade was employed at the community. Believing that numerous constructional defects may exist in each residence in the community, First Light hired experts to assist it in preparing an NRS 40.645 pre-litigation notice of constructional defects. Those experts formulated the notice after using visual and invasive testing in a small representative sampling of the homes in the community. But they did not provide D.R. Horton with the addresses or the expert report of the homes they had tested. Based on the occurrence of each defect they found, the experts extrapolated the percentage of homes in which they believed each defect existed throughout the entire community. The defects First Light alleges are categorized into several major groups, many of which have multiple subcategories. According to First Light's notice, approximately 160 defects may exist in various combinations in each of the 414 homes. First Light's experts estimate that anywhere from 2 to 100 percent of the 414 homes in the community have any combination of each of the 160 defects. In its notice, First Light did not specify the floor plans, elevations, or addresses of the homes in which it alleges that a particular defect may exist. Unsatisfied with D.R. Horton's response to its notice, First Light *736 filed a constructional defect action with the district court. In response to First Light's pre-litigation notice and action, D.R. Horton moved the district court for a declaratory judgment, stating that First Light's NRS 40.645 notice was unreasonable and thus statutorily insufficient. The district court denied that motion, expressing dissatisfaction with the statutory constraints when it comes to cases involving a significant number of homes.[2] The district court further refused to declare First Light's NRS 40.645 notice statutorily insufficient. In its written order, the district court found that First Light "properly relied upon expert opinion and representative sampling pursuant to NRS 40.645(3)[and] (4)" to prepare its notice.[3] D.R. Horton then filed this petition challenging the district court's order denying its motion for declaratory relief.[4] Through this petition, D.R. Horton challenges the district court's order, arguing that First Light's prelitigation notice does not give it notice with the "reasonable detail" required by NRS 40.645(2). D.R. Horton further argues that the inadequacy of First Light's notice frustrates its opportunity to repair under NRS 40.647. In its answer, First Light contends that its notice is sufficient and that D.R. Horton bears the burden of finding and repairing the defects noticed or allow the litigation to proceed. DISCUSSION D.R. Horton seeks a writ of prohibition restraining the district court from allowing First Light to ignore the requirements of NRS 40.645(2). Additionally, D.R. Horton seeks a writ of mandamus directing the district court to (1) vacate the order denying D.R. Horton's motion for declaratory relief with respect to First Light's duty to provide adequate pre-litigation notice and (2) order First Light to disclose additional information concerning the defects it alleges in its homes. Availability of writ relief Writs of mandamus and prohibition are extraordinary remedies and are available when the petitioner has no "plain, speedy and adequate remedy in the ordinary course of law."[5] The right to immediately appeal or even to appeal in the future, after a final judgment is ultimately entered, will generally constitute an adequate and speedy legal remedy precluding writ relief.[6] Whether a future appeal is sufficiently adequate and speedy necessarily turns on the underlying proceedings' status, the types of issues raised in the writ petition, and whether a future appeal will permit this court to meaningfully review the issues presented. In this case, which has already existed below in a pre-litigation stage for more than two and one-half years, and which involves a pre-litigation notice of constructional defects designed to prevent litigation altogether, an eventual appeal from any final judgment would be neither a speedy nor adequate remedy. Consequently, writ relief is not precluded by other means of review. *737 Standards for granting writ relief Under NRS 34.160, a writ of mandamus is available "to compel the performance of an act which the law . . . [requires] as a duty resulting from an office, trust or station." Mandamus is also available to control a manifest abuse or an arbitrary or capricious exercise of discretion.[7] A writ of prohibition may likewise issue to arrest the performance of an act outside the trial court's discretion.[8] This court has broad discretion in deciding whether to consider a petition seeking relief in the form of mandamus or prohibition.[9] Although this court infrequently decides to exercise its discretion to consider issues presented in the context of a petition for extraordinary relief, we have elected to exercise our discretion in this instance to consider the issues raised. In doing so, we recognize that in large community-wide constructional defect cases, a fundamental disagreement exists regarding the interpretation of NRS 40.645. The interpretation of this statute is of great importance to both claimants and contractors. Our review of NRS 40.645's application in these constructional defect cases will aid the district courts in managing them. Having reviewed D.R. Horton's petition, First Light's answer, the amici curiae's briefs, and the parties' supporting documentation, we grant the petition, in part. In doing so, we address the application of NRS 40.645 and establish a "reasonable threshold test" to aid district courts in managing constructional defect cases, thereby avoiding the fate of this case, which has wallowed in a prelitigation quagmire while the parties litigate the level of detail required in a notice that is intended to prevent litigation. Nevada's constructional defect law The provisions of NRS Chapter 40, concerning constructional defect actions, reveal that the Legislature intended to provide contractors with an opportunity to repair constructional defects in order to avoid litigation.[10] To ensure that contractors are given an opportunity to repair, the Legislature requires a claimant to give the contractor notice in "reasonable detail"[11] and, based on that notice, to allow the contractor time and the opportunity to inspect and make repairs when a defect is verified.[12] A claimant's failure to comply with those requirements before filing a constructional defect action results in the dismissal or postponement of that action until the claimant complies with those requirements.[13] NRS 40.645 sets forth the requirements for a pre-litigation constructional defect notice and requires that a notice of constructional defects specify in "reasonable detail" the defects, any known causes, and the defects' locations. The question of what constitutes "reasonable detail" under NRS 40.645 is one of first impression in this court and a matter of statutory interpretation. This court reviews de novo a district court's interpretation of a statute, even when the issue is raised in a petition for extraordinary writ relief.[14] When a statute's language is clear and unambiguous, it must be given its plain meaning, unless doing so "violates the spirit of the act."[15] A statute is ambiguous if it is capable of being understood in two or more senses by reasonably well-informed persons.[16] When construing *738 an ambiguous statute, "[t]he meaning of the words used [in the statute] may be determined by examining the context and the spirit of the law or the causes which induced the legislature to enact it."[17] Moreover, we read legislative enactments as a whole in order to understand the Legislature's intent.[18] However, "no part of a statute [may] be rendered meaningless and its language `should not be read to produce absurd or unreasonable results.'"[19] With these rules in mind, we turn to the statute at issue in this case, NRS 40.645, which states, in pertinent part, 2. The notice given pursuant to subsection 1 [of NRS 40.645] must: . . . . (b) Specify in reasonable detail the defects or any damages or injuries to each residence or appurtenance that is the subject of the claim; and (c) Describe in reasonable detail the cause of the defects if the cause is known, the nature and extent that is known of the damage or injury resulting from the defects and the location of each defect within each residence . . . to the extent known. 3. [The notice may include] expert opinion concerning the cause of the constructional defects and the nature and extent of the damage or injury resulting from the defects which is based on a valid and reliable representative sample of the components of the residences or appurtenances . . . as notice of the common constructional defects within the residences . . . to which the expert opinion applies. 4. [O]ne notice may be sent relating to all similarly situated owners of residences . . . within a single development that allegedly have common constructional defects if: . . . . (b) [Among other things,] it is the opinion of the expert that those similarly situated residences . . . may have . . . common constructional defects.[20] Although the parties contend that NRS 40.645 is clear and unambiguous, each party advances a different interpretation. D.R. Horton contends that although extrapolation evidence may be used under NRS 40.645(3) and (4) to formulate a pre-litigation notice, NRS 40.645(2) requires the claimant to specify in "reasonable detail" the defects that exist within each residence in the development. First Light contends that NRS 40.645(2) describes what the contents of the notice should include, but extrapolation evidence under NRS 40.645(3) and (4) can satisfy the "reasonable detail" requirement. We conclude that NRS 40.645 is ambiguous based on the number of differing, yet reasonable, interpretations proffered by the parties and amici curiae. While the statute sets forth requirements for a pre-litigation notice, we are unable to determine from the statute's plain language the exact meaning of each of those requirements. Therefore, we examine the legislative history to ascertain the Legislature's intent when it drafted the statute. During a legislative hearing discussing the 2003 amendments to NRS 40.645, a representative of the contractors' lobby, which advocated for the contractors' opportunity to repair, explained the contractors' view of that opportunity.[21] From the legislative history, it is apparent that the Legislature discussed the contractors' approach, accepted it, and approved the current version of NRS 40.645 based on that approach. During their discussion, the contractors' representative testified *739 that the contractors' lobby envisioned a process through which claimants with similarly situated homes, who found a defect they believed to be common throughout their homes, could hire an expert to conduct a representative sampling of their homes. He explained that the expert should be allowed to use the results of that sampling to extrapolate the percentage of houses within a group of homes that the expert estimated were affected by that common defect. The claimants would then be required to provide the contractor notice of the defect in compliance with the requirements of NRS 40.645 and the opportunity to repair. The contractors' representative further explained that once a contractor receives a pre-litigation notice, "he has . . . [the] opportunity to make a business decision."[22] Some contractors, he explained, having received notice of a defect, will "avail [themselves] of the opportunity to notify all the other claimants who could have [that] problem, according to the expert's report, and deal with them directly."[23] If the contractor decides not to notify the claimants of the alleged defect, the claimants would then have the right to initiate a constructional defect action. The contractors' representative stated that the process would apply to defects that were common throughout many houses. The intent was that a contractor, having received a notice that either a workmanship or design defect existed, would send a letter to every claimant who, according to its records, might be affected.[24] In that letter, the contractor would notify the claimants, according to the expert's extrapolation, that a defect might exist in their homes. As the contractors' representative envisioned, the contractor would invite each claimant to "[p]lease call us and we will come out, inspect, repair, or replace [the defect]."[25] He then explained that if the contractor decided not to avail himself of the opportunity to repair, the claimant would have the right to sue and petition "the court [to] exact the appropriate penalty."[26] During that discussion, the contractors' representative also clearly stated that the burden of verifying a defect is on the contractor, not the claimant. It is clear from the legislative history that the Legislature intended to preserve an opportunity for contractors to repair the homes they construct. It is also clear that contractors are entitled to reasonable notice of alleged defects in their homes so that they can verify and repair those defects in lieu of litigation. If the contractors decide to verify and repair, they are responsible for the costs to do so. However, this responsibility on the contractors' part does not relieve the claimant of the duty to provide reasonable notice of what defects exist and a reasonable approximation of the location of those defects.[27] When multiple homes are believed to contain a common defect, the Legislature intended to allow owners of those homes to formulate a pre-litigation notice using expert opinion and extrapolation,[28] so long as their notice satisfies the "reasonable detail" requirement of NRS 40.645(2). Because of the variety of constructional defects that can occur, no universal formula exists for use in measuring whether every pre-litigation notice that comes before a district court is reasonable. Thus, the district courts have wide discretion to make that determination. To guide the district courts in the exercise of that discretion, this court now establishes a "reasonable threshold test," which every pre-litigation notice must satisfy, but only if challenged by the contractor. Extrapolation is defined as "[t]he process of estimating an unknown value or quantity *740 on the basis of the known range of variables."[29] Extrapolation encompasses the statistical use by an expert witness of a valid and reliable representative sample to formulate an opinion that similarly situated residences and appurtenances may have common constructional defects.[30] The scope of the extrapolated notice must be narrow. Homes included within the scope of an extrapolated notice typically will be similarly situated only if they are part of a subset of homes within the development. In some cases, a subset of homes for extrapolation purposes may be those of a particular floor plan. In other cases, depending on the nature or location of the defect, the subset of homes to which the extrapolated notice applies may be even narrower, such as homes of a particular elevation within a particular floor plan. Likewise, a valid extrapolated notice may be limited to a subset of homes in which a particular product or type of construction was used. In all cases, an extrapolated notice is valid only if it identifies the subset or characteristics of the subset to which it applies. In order to achieve the minimum statistical basis that the reasonable threshold test requires, we suggest that the district court require the claimants' expert to test and verify the existence of the alleged defect in at least one of the homes in each subset of homes included within the scope of the extrapolated notice. Additionally, the claimants must provide the address of each home tested and clearly identify the subset of homes to which the pre-litigation notice applies. In order to provide valid pre-litigation notice, that group of claimants must narrow the scope of their extrapolated notice. They should investigate further and identify a subset of homes within the community that has the purported defect. If they genuinely believe that every home in the community may have the alleged defect, then the claimants should test and verify the defect in at least one home from each subset of homes in the community and extrapolate the percentage of homes within each subset that they believe are likely to contain the defect. The district courts must then employ their wide discretion in determining whether a valid and representative sample has been used for the size and make-up of each subset. In exercising their discretion, the district courts may determine that a notice is not reasonable unless a defect is confirmed in more than one home in each subset. These guidelines merely set the minimum threshold that an extrapolated pre-litigation notice must satisfy. Once the district court determines that a notice is reasonable, the contractor bears the burden of verifying and repairing the alleged defects in every home in the subset of homes identified in the extrapolated notice.[31] We establish the reasonable threshold test because of the benefits and protections it provides for Nevada's contractors and claimants. It allows a contractor who chooses to repair to focus on testing and verifying defects in homes that are truly "similarly situated" and therefore more likely to contain an alleged defect. The rule increases the likelihood that a contractor who chooses to verify and repair defects can do so within the time constraints set out in the provisions of NRS Chapter 40. It also reduces the number of subcontractors a contractor must involve in investigating an alleged defect and who may be included as defendants in a lawsuit if an alleged defect is not repaired. Consumers and claimants will also benefit from the reasonable threshold test. The test prevents the contractor from having to inconvenience all claimants in a community with invasive testing in their homes unless it is statistically likely that their homes actually contain the defect alleged. The test may also reduce the costs each Nevada contractor has to add into the cost of new homes in *741 anticipation of community-wide constructional defect disputes. We emphasize that the Legislature intended NRS 40.645 to provide Nevada contractors an opportunity to inspect and repair defects in the homes they construct. To that end, a pre-litigation notice must contain reasonable detail that a contractor who makes the business decision to inspect and repair can do so in compliance with all of the provisions of NRS 40.600 though NRS 40.675, which govern constructional defect cases. We further conclude that pre-litigation notices are presumed valid under NRS 40.645. A contractor who wishes to challenge the adequacy of a pre-litigation notice bears the burden of doing so with specificity. Because each case is factually distinct, the district courts have wide discretion to consider each contractor's challenge to the reasonableness of each pre-litigation notice. With the assistance, expertise, and recommendations of the capable special masters appointed to assist in these matters, the district courts are well suited to determine whether a notice preserves a contractor's opportunity to repair. In determining the reasonableness of a notice, a district court should keep in mind the judiciary's policy of maintaining judicial economy,[32] the particular requirements and limitations set out in NRS Chapter 40, and the policy considerations discussed above. Although the district court has the discretion to hold an evidentiary hearing to determine the reasonableness of the notice, the district court may also make such a determination after examining the affidavits of the parties, witnesses, and expert witnesses. We conclude that a claimant cannot utilize the phrase "to the extent known" in NRS 40.645(2)(c) to justify withholding pertinent information from a pre-litigation notice. By the same token, the district court should use its wide discretion to ensure that a contractor is not utilizing NRS 40.645 as a shield for the purpose of delaying the commencement of repairs or legitimate litigation. Additionally, when multiple constructional defects are alleged in a single notice, the district court may conclude that the notice is adequate as to some of the defects and not as to others. The district court may sever the defects in the notice. The district court may then approve the notice as to some of those defects and allow the repair or litigation process to immediately commence as to those defects. Furthermore, because a district court's decisions may ultimately be subject to our review, the district courts shall make specific written findings as to the reasons why a pre-litigation notice of defects is reasonable or unreasonable. The district court's findings must also note how the notice preserves for the contractor an opportunity to repair. In this case, it was permissible for First Light to formulate its pre-litigation notice using expert opinion and extrapolation. However, the district court did not have an opportunity to apply the reasonable threshold test and to determine whether First Light's extrapolated notice provided the "reasonable detail" necessary under NRS 40.645. Therefore, we grant D.R. Horton's petition in part so that the district court can determine whether First Light's notice provided the reasonable detail required as discussed herein. We further conclude that NRS 40.645(4)(c) requires a claimant to disclose the expert opinions and reports in his possession that were used to prepare his pre-litigation notice. Accordingly, we grant D.R. Horton's petition to the extent that it asks us to require that First Light disclose its supporting expert reports concerning the alleged defects in the homes at First Light at Boulder Ranch Community. With respect to petitioners' other requests that First Light produce other information such as job files, notes, and photographs, the requirement to produce this information is within the district court's wide discretion. If the district court determines that First *742 Light's pre-litigation notice provides the detail necessary to preserve D.R. Horton's opportunity to repair, it should make specific findings supporting this conclusion and that the disclosure of this additional information is not necessary. CONCLUSION In a constructional defect case, the district court has wide discretion to determine whether a pre-litigation notice is reasonable. This wide discretion should be informed by the reasonable threshold test. As the district court did not have the benefit of this test in ruling on D.R. Horton's motion for declaratory relief, we grant D.R. Horton's petition in part and direct the clerk of this court to issue a writ of mandamus directing the district court to vacate its declaratory relief order. The writ shall further direct the district court to reconsider the motion in accordance with the reasonable threshold test and to make written findings with respect to the adequacy of First Light's pre-litigation notice, including, but not limited to, whether First Light's notice preserves D.R. Horton's statutory opportunity to inspect and repair, pursuant to NRS Chapter 40.[33] We concur: MAUPIN, C.J., and HARDESTY, PARRAGUIRRE, DOUGLAS, CHERRY and SAITTA, JJ. NOTES [1] Supporting this petition as amici curiae are the Associated General Contractors, Las Vegas Chapter; the Coalition for Fairness in Construction; and the Nevada Subcontractors Association. Additionally, the Nevada Trial Lawyers Association and Safe Homes Nevada each filed amicus curiae briefs supporting the real party in interest's position. [2] In the April 24, 2006, hearing, the district court stated, "that's the problem with this statute that works perfectly for one house, or a group of five. Let's say a builder builds a cul-de-sac and there are five homes there. Works perfect for that." The district court further stated that "[i]t doesn't work nearly as well in a project that has 414 units; and I don't think there's a solution that a [c]ourt can create given the boundaries of the statute." Having said that, the district court denied D.R. Horton's motion asking it to declare First Light's notice statutorily deficient. The district court then simultaneously encouraged D.R. Horton to petition this court for a writ instructing it on how to make these cases workable. [3] The record shows that the district court was reluctant to reach its holding because, while it could not determine that First Light's notice was technically insufficient under the statute, the district court recognized and expressed its concern that First Light's notice did not adequately notify D.R. Horton of which defects existed in each house. [4] The remaining petitioners, subcontractors in the First Light community, later joined in the petition. [5] NRS 34.170; NRS 34.330; see also State of Nevada v. Dist. Ct. (Ducharm), 118 Nev. 609, 614, 55 P.3d 420, 423 (2002). [6] Pan v. Dist. Ct., 120 Nev. 222, 225, 88 P.3d 840, 841 (2004). [7] Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). [8] NRS 34.320; Houston Gen. Ins. Co. v. District Court, 94 Nev. 247, 248, 578 P.2d 750, 751 (1978). [9] Ducharm, 118 Nev. at 614, 55 P.3d at 423; Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). [10] Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 853-54, 124 P.3d 530, 542 (2005). [11] NRS 40.645(2). [12] NRS 40.647(1). [13] NRS 40.647(2). [14] Marquis & Aurbach v. Dist. Ct., 122 Nev. ___, ___, 146 P.3d 1130, 1136 (2006). [15] McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). [16] Thompson v. District Court, 100 Nev. 352, 354, 683 P.2d 17, 19 (1984). [17] McKay, 102 Nev. at 650-51, 730 P.2d at 443. [18] Diamond v. Swick, 117 Nev. 671, 676, 28 P.3d 1087, 1090 (2001). [19] Harris Assocs. v. Clark County Sch. Dist., 119 Nev. 638, 642, 81 P.3d 532, 534 (2003) (footnote omitted) (quoting Glover v. Concerned Citizens for Fuji Park, 118 Nev. 488, 492, 50 P.3d 546, 548 (2002), overruled in part on other grounds by Garvin v. Dist. Ct., 118 Nev. 749, 59 P.3d 1180 (2002)). [20] After its amendment in 2003, NRS 40.635(1) states that "NRS 40.600 to 40.695, inclusive: [a]pply to any claim that arises before, on or after July 1, 1995, as the result of a constructional defect." [21] Hearing on S.B. 241 Before the Assembly Comm. on the Judiciary, 72d Leg. (Nev., May 16, 2003). [22] Id. at 32. [23] Id. [24] Id. at 34. [25] Id. [26] Id. [27] NRS 40.655(f) provides that claimants may recover the reasonable costs they incur in the preparation of their pre-litigation notice if the defects alleged are verified. [28] The parties agree that NRS 40.645(3) and (4) contemplate the use of extrapolation evidence even though the term "extrapolation" is not specifically used. [29] Black's Law Dictionary 625 (8th ed.2004). [30] NRS 40.645(4)(b). [31] Because of the contractor's burden during pre-litigation, we recognize that there are instances when it may be within the contractor's best interest to opt not to repair. If the contractor opts not to exercise its opportunity to repair, the claimant can commence litigation. At that point, the claimant bears the burden of proving the existence of each defect and the extent of damages resulting from those defects in each residence as part of its damages presentation. See Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 855-57, 124 P.3d 530, 543-44 (2005). [32] See State v. Dist. Ct. (Riker), 121 Nev. 225, 234-35, 112 P.3d 1070, 1076 (2005) (holding that in the interest of promoting judicial economy, it was appropriate for the court to grant the relief requested). [33] We have considered the parties' other arguments and conclude that they lack merit.

THE THIRTEENTH COURT OF APPEALS 13-10-00535-CR PAUL PAWLAK v. THE STATE OF TEXAS On Appeal from the 347th District Court of Nueces County, Texas Trial Cause No. 08-CR-3582-H (S1) JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes that the judgment of the trial court should be reversed and the cause remanded to the trial court. The Court orders the judgment of the trial court REVERSED and REMANDED for further proceedings in accordance with its opinion. We further order this decision certified below for observance. April 3, 2014 

somrfme 0ml3ls S.Carpenter Texas UPePlployasnt aempensetionConmiseion Brown Bld& Austin, Texas &bar Sir: Opfnlon No. o-2247 R%i uap the Coml%%loti r%uwe to l.tealftb determlmitlone 8 alaim for benefit8 or rerlsw e determlnatlonalrea6y rrde before an appeal iron 8tmh de- terwlnatlon~hasbeen iilod with %% appeal Srfbunal and re.. latsd questions. You2 reqamt for en opinioa on aar$ain ralattwl qws- tlons imuting qqeml proaodure Wore the !gma U-r Qae permotionOolPrlaaion lrrrrr been reaefved. Pour questionswill bo quoted end dltiassad in~tb& order +f their Irppemranae In the request. The Lsgi~lmture has andearorodto ~tllne gatiieular4 the proaodureto be iollowed ta tfibhfutdl.~ ef benefit olairs baiorathe Gomlaahn. Ue quote the peW.mmtSa&lons of &ti- ale 5223.-b,Vernen's Ravlsod Civil Statutsst "See. 4 (b). SnLtlal Determination: A represents- tire clasignetedby the GQIBBX%SB~~P,antihwdmUter re- ierred to aa a dsputp, shall promptly exnmine t4e O~&JU and, on the baais of the faoCa foam3 by hiat,shall either determkne whsther or not euoh aLaim 1% valid, end if mild, the date 0% w!~l%hb%a%fit% shell oomue~e, the benefit aiwiuutparetie end thciBlexilnumduration thereof. or ahall refbr suon aletw or any question lo- rolved theretn to en appeal xribunslor to the WIa5la- &of%, wuoh shell m&e its detemninatlanswith rsapeot thsreto In aooordanae with t!w proaedure deaeribed in subseatlton (0) of this %eotfcm, exoept t&et in any oa%e in which the peyment or d%ni%l of benefits wtil be da-  GrvIlla~S,Osrpantar,page 2 tarmIaad by tha prai%Iuns of %eotlon 5~x6) oi this AOtt,the deputy ahall prompay txailadt hle zllllfinding as rao4iwith reapeot to that aubaaationto the ConmU- alon, WhIoh, on tho be%I% of the atidauoe submittedand suoh a&ditlOual evldauoe 8% It may requlro, shall 8rriXJItj 6miif$, ox set a8Ida suah fiudiugs of facetend tran%&t to tha dapaty a daaI%Ion apon the Issues Involtad undar the subaeatlon. The daputy etia3.l propapt notify the alaImnt.and any dtmr lnterestadpsrtg-of tha deoiaion and the reabans thexsror. Unless tireal%Imsnt or any suoh Interestadpsrty, within tan (10) calenderdays ester the delivery of,ouoh uotificcrtion, or within twelve (U) a%lendsr day% after auoh notirlaaticnwc.8mailed tb hi8 leastlcuOspfl~addres:s, files en eppettlfrom such da- olalon, auoh dea$tsIon skmll baTIn%l and banefita shall ba paid or-&dad ln eaoamlanoe -tharawTth. IX an eppa%l Io~dulg filad, banaflto with respaot to the parlod prior to the flnal detarmInstionor tLreCommIuslon, shall ba pald or&y sitar such dstemInstIon; prop/dad, that If au appeal tribuuel~erfirusa dacisian of a deputy, or tha GomfnIe~~5o~ effirme a t!ieoisbmof en appaal trIbuna1, allowIng behefits, such bonefIt% shall ba paid reGardlea% efany~appaal.whloh~my tharaaftarbe taken but It suah daoision Is fimlly revarssd, no amployar*s daaouut ahall be ahergad with benefits so paid. aho. 4 (a). Appbal~~ Unless suah appeal Is wlth- drawn,,%u appeal trtbunal, artsir%tford&ng the partlea raaeonable oppc&iuIty for fair hmriog, aLall bffimi or.madYy the fludIng of faat anb'daoI%ionof the depaty. The partlss ahall be da4 natIfIed of sash. trlbtu+*6 deo+slon, tanager tit& It6 raaaom3 there- ior, whiah ahall be de&mad to ba tlma& tla6iaiix1 Eb tth& 6anmiasi0r~,unlsss within tan (10) days r&a? tha date of notlfloatlcmor msIl.ingof %%ah 4eaIaIoa rurtha appeel Is IhItIstad pursuant to subsaatian {a, of this aaotls4n;* aSea 4.(a) Th% Conmiseion may on Its own motion affira,modify, o? set as&de ang deoiaion of en Cppaal tribunal on the heals of the eW¶anaa previously sub- mitted In auah oasa, or dIreat the taking of eddftioual eviBauae, ax may peruit an$ of the partlee to s&h da- aiaion to unitlate further appesls before it . . ~. . The %mraIssIon may remva to Itself or transfar to another eppecl tribune1 the proeeadln,;sau any claim penblng before an eppeal tribunal. . rW ,. Thui a aaraful awmiuatioa of relevant eeatloua of Artlole 5221-b disaloses e power Hithin the Cor%n3.~sion, faund in Laotian 4 (a) to affirm, mdffy or set aoSda say Uaaoisionof en appeal tribunal on :ts own motion,. This m?i.ua %eatIon of our law~.fur- thar empowers the G&saion to ranove to ItaaU or to anothar appasl tribunal my alai& pendiug before en eppac~ltribuual. Raforanoa to the oour%e 6f a bleiu from Its fIlIug to Its rlnal deteruiuatlon,%how%.tha first datam&mtIou to ba teetea by Artlola 5221-b, Eaatian 4 (b), la a raprasantatiraor deputy designeted by tha &%rm~I%%Lon;subsaquantto detormf.a%tlon by the dapaty the prooedure 1% .outliuedfox an appaal to aa appeal tribunal und from that body to the ., GomnIesIan. Bon.~GrvllleS, Carpenter,paga 3 A pruvibionIa -de In Artlola !%!a-0, SeotIan 4(e), far remwal by the CoxnaIasIon on 1tS motion of a ola5.mber~re an appeal tribunal, bntno auhorlmatlonappears in the statute for the Gom&mion, on its own motion, -toremove e olain for revfew pr1a.rto an appaal to the appeal tribunal. 1t:obviouslywas intended that the epplioant for banerlts take the IuItlatIvaia'saaurIxtg benefita and that the Cumalsslon would not of Ita own volition award payments fndlaorimI~toly rrom a rund designed to help the needy unamployed. We have oonsideredthe datalledmanner adopted by the Lagls.:eturain oatlInIngthe prooedura of P olelm, tha authority and the duty of tha Colgfacilonand Ita daputlca with rderenoe to olaims. Thla sppears to be En apt situationror the appI& aatlon of the legal marIm vexpresalourrius~est exaluelo alterIus*. Where the stat&a auumarataat!m powers and dutias of ofiloialrr UoLto be ear&trued aa axaludlng all those not expresslyman- This rule was long ago laid down In Texae ln the opLn- ion oreJudge Wheeler in &-yen vs. gundberg, f,Tox. Rap. &I& Your first queetIon 18 qmwered in the negative. ‘QuestionHo. 2, ~May a oat38p&ding b&ore an appaak tribunal be ramovkd to the Commlselon bx an aotlon 00 the Corplnisslou taken ln the sbsenoe of trie tha oonaumdnoe 0r the lmpartislnumber; or iwioitheut impartialmember in aueh ~aotIanV Artdale 5223.-b,GeotIW 8 (e), reads as follows: "(e) Quorumt Any tool(2) Gorraalseione~sshall oon- atituta a quarum, provided, hewevar, that whanavar tha ConudsaIon hefms wy ease Imdlrlng 8 dlaputed 0lal.itoi, benefits kdar the &cwlmIon~ of Sd3.rm 6 af this Aat, the impcmtlalmember oi-ths Caaualaalon shallaot u3.e~~ in the sbeenoe or &isqualYioatio~~ai any other member, end in no oese ehall suoh a heerlng prooeed unless the inqpartlalmemberof the C~sslon is present. Bbroept as harefnbeioreprovided, no vaoanoy &aBu Impair the right 0r the ramaInIug Gumksslone173to exarelaa all oi the.poriaraoi the Gamai8sI01&"~ Our’aJlsW~ to this question IS rurther oomplioatadby oral.InformatIon,not-in the Xetter of requaat, that a ramavel to the Commission is In hot a ravlew of the olaira. This sltuatlonexlsting as It does Rlaaea the proeadura strIotly within tha prohlbltlonfouud in Section 8 (a) quoted abova-, ue advert partioularlpto that portion of f5actlon8 (a) whiohrsade "r . . and In no aase aasll.a hearing proased unIess the lmpartlalmambar of the Ccmmlssion 5s present.* . . . Ths 'presenoeand oouaurrenoaof tha impartlalmembar la tturrdm mmdatory if .thereglovalfrW au 8pped tribunal iS tankMouat to a revlaw 0r the olatsa n Quastlan No. 3 May the G&aeion act upon an applloatlonrar lea4 to appeal to ths aolRIRi86ion3.n the ebsanae of the ~urtIalmambar?* The provisions of Artiole 5221-b, Seotlon S-(e) Ver- non*8 RavIsed GIvII Statutes, damand the presanoe of the &a- partial mambar bafore a hearing may prooead. yh,have WId In  il~~.urvll.LeS. GqrpantBf.page 4 w user to your saooxu?question, that under the faota as.we hars'tham, the ramoval of an appeal vans that the mambara ham atudled the reaord and the ramoval la a rsvl&w, thus out anawar to your third qaeation la no. The bssle far our answar Is the same as that in question tnro; WgueatlonNo; 4 ~Xn an aotlon by the Gommlsalon unon an aoalloation;or leave lx aDDeal to the km- -~- ~. ~~a_- mIssIon, is the onourrerioeof the--&artIal m%mb%r neoes~aaryto s dealsion?* * is derlnsd by Webster asr "Aot 'The term ~"00110urren0e or oonourrlng*; "a meeting or corni&?together"; "union"; "aon- .' junotion*. Th%ra is also tha Interpratatlckn 0r oonourr%naeto ba *in agreement* as found In swordsand Phrases, PirEt Cexiea pg. 1390, and Worda end Phrases, Seoond series, Pa. 8!& We arcwont to believe that.the use implied in your ques- tion la the -aotIng together-. This Infermrrs rasults tram ratlure to rjnd any raqu5ramantor lndloatlon that the law aon- tamplatesthatall thrnmmbersm~~tagr88 onanappeal. Suoh a aonolusion w0uld not be Ln hsrnsny with the idea of a thra%-man baard. Adopting the vleu that aonaurr%no0embxapea the sating or preaenoa In tha me&In&.oi the isp?artIalmmb~, weibelieve our statutes apiwifloally require the prsaenoe of the kpartIa1 I -bar on any aation, but do%a not require the sfilrmatIv%vota 0r .auohxns&er. nere'the -8son has grantad daiiwminatIm~a olatiicrr benefits and wheie Micahappeal M berma the Oem~IaaIon on the raaord end so fori@ hearIng.haabeen hald, Is the oonaurr%aaa0r ~the Impartlalmamber IXbO886ErF to a deslaian on auoh app%aX?a TM.8 answer alao ambraoas prerloua QlauusaIon In thIa oplnian, W% find nothIag In the Texas statutes on unamp&~ .. ~eomp~tlonInaur8nee that suggest8 that the iagartI%laemb%r auat tippruvea bsnsiit 01al.mor appeal.b%fore 1% oan be paid. It appears to us that the,- uWa&asnta of the law and psrtleularly Artlole $i42l-13, S%otion 8 (e!, ar% 6atisfIed ii the partial member Is prssent et the hearing as aonaS.der~tIen of the olalm. The preseuti or oonaurr%ne%of the I&partIal~~~bar is al.1that Is riqulred, but the statute Is ol~~and~ unambIguouaIn its roquiraarentthat suoh memberbe premmnt b&ore the hearing may The atstutes appar%ntl.ydo n@t lnt%nd that a deolalon ~~~*ln the abaenoe of the &psrtial m%mW. 

CORRECTED COPY UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before the Court Sitting En Banc 1 UNITED STATES, Appellee v. Sergeant ERIC F. KELLY United States Army, Appellant ARMY 20150725 Headquarters, 21st Theater Sustainment Command David H. Robertson, Military Judge Major Michael P. Baileys, Acting Staff Judge Advocate For Appellant: Zachary Spilman, Esquire (argued); Lieutenant Colonel Christopher D. Carrier, JA; Zachary Spilman, Esquire (on brief and reply brief). For Appellee: Captain Sandra Ahinga, JA 2 (argued); Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Wayne H. Williams, JA; Captain Joshua Banister, JA (on brief). 30 November 2018 -------------------------------------------------- OPINION OF THE COURT ON REMAND -------------------------------------------------- WOLFE, Judge: We issued an initial decision on this case on 5 July 2017. In our initial decision, we determined that we lacked the authority to set aside a dishonorable discharge that was a mandatory sentence under Article 56(b) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 856(b) (2012 & Supp. I 2014). United States v. Kelly, 76 M.J. 793, 806-07 (Army Ct. Crim. App. 2017). Accordingly, because we viewed our authority as limited, we declined to consider whether appellant’s dishonorable discharge was an appropriate sentence under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012). Id. at 807. The Court of Appeals for the Armed Forces (CAAF) disagreed, determined we did have the power to set aside a mandatory punitive discharge, and remanded the case back to us. United States v. Kelly, 77 M.J. 404 (C.A.A.F. 2018). 1 Judge Schasberger took no part in this case as a result of her disqualification. 2 Corrected KELLY—ARMY 20150725 The circumstances of this case are adequately laid out in our initial opinion. See Kelly, 77 M.J. at 795-96. DISCUSSION A. The Scope of the Remand The threshold issue we must decide today is the scope of the CAAF’s remand. 3 Appellant argues that the remand is broad and that we must consider additional assignments of error that he has submitted on appeal, and determine whether the findings and sentence are correct in law and fact, and should be approved. The government, by contrast, argues that the scope of the CAAF’s remand is narrow. We begin with a discussion of our superior court’s opinion. 1. The Decision by the Court of Appeals for the Armed Forces After we issued our initial opinion, the CAAF granted review on two unrelated issues. The first, as discussed above, was to determine whether our authority under Article 66(c), UCMJ, extends to setting aside mandatory dishonorable discharges. We determined we lacked that authority. The CAAF found we had erred. Kelly, 77 M.J. at 408. The second issue was whether we had erred in applying the wrong standard when reviewing the case for improper argument. The second issue included claims of error in both the findings and sentencing argument. The CAAF found that we had erred in applying waiver, but that “[a]ppellant was not prejudiced” by the error as we had also tested for plain error. Kelly, 77 M.J. at 405 n.1. Having resolved the two claims, the CAAF returned the case to this court. We begin our analysis, as we must, with the plain language of our superior court’s order. The CAAF’s order stated, in its entirety: The judgment of the United States Army Court of Criminal Appeals [(ACCA)] is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the United States Army Court of Criminal Appeals for an assessment of sentence 3 The court sitting en banc heard oral argument on this issue on 13 * November 2018. * Corrected 2 KELLY—ARMY 20150725 appropriateness pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012), consistent with this decision. Id. at 408. Broadly, appellant focuses on the first line of the order. The government focuses on the second. We will take each clause in turn. 2. “The judgment of [ACCA] is set aside.” Appellant argues that when the CAAF set aside our “judgment,” the CAAF’s order necessarily set aside both our affirmance of the findings and sentence. If no findings are currently affirmed, so goes appellant’s argument, we must affirm or set aside the findings so that the case may progress through the appellate process under Articles 66 and 71, UCMJ. So, if we must consider anew the findings, we must address appellant’s additional assignments of error. Appellant further notes that the CAAF has, in other cases, specifically affirmed the findings while simultaneously setting aside the sentence and remanding the case for additional proceedings. See, e.g., United States v. Jerkins, 77 M.J. 225, 229 (C.A.A.F. 2018); United States v. Chikaka, 76 M.J. 310, 314 (C.A.A.F. 2017). Appellant asserts that because the CAAF did not do so in this case, they did not intend for our review to be limited. Appellant’s argument is persuasive when the reader is limited to the first sentence of the remand. It is also a persuasive understanding of the intersection of Articles 66, 67 and 71, UCMJ. But we see that reading as inconsistent when read with the history of the case. The CAAF’s opinion addressed only one alleged error of law that would affect the findings in this case. 4 That issue was the alleged improper findings argument by the trial counsel. However, the CAAF resolved that error in a footnote, granted no relief, and found appellant had not been prejudiced. Kelly, 76 M.J. at 405 n.1. We see no legal basis in the CAAF’s opinion that supports that CAAF set aside our findings decision based on an error of law. To read their remand as a decision setting aside the findings without an error of law would be inconsistent with our understanding of how military appellate courts review errors of law. See Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2012) (“The [CAAF] shall take action only with respect to matters of law.”); Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012) (establishing the standard for reversing findings based on errors of law). We can resolve this tension by turning to our superior court’s decision in United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Although appellant argues that it is only persuasive authority, there the CAAF explained how we should treat their remands: 4 CAAF was presented with additional multiple assignments of error by appellant regarding the findings phase but did not grant review. 3 KELLY—ARMY 20150725 When this Court sets aside the decision of a Court of Criminal Appeals and remands for further consideration, we do not question the correctness of all that was done in the earlier opinion announcing that decision. All that is to be done on remand is for the court below to consider the matter which is the basis for the remand and then to add whatever discussion is deemed appropriate to dispose of that matter in the original opinion. The original decretal paragraph of the Court of Military Review’s opinion . . . is not affected by the set-aside order unless resolution of the matter which is the subject of the remand dictates a different result. The amended opinion then becomes the decision which is subject to our review. This procedure does not permit or require starting the review process anew or setting aside action favorable towards an accused on other grounds. Ginn, 47 M.J. at 238 n.2 (citation omitted) (emphasis added). Under the framework announced by Ginn our initial decision affirming the findings “is not affected” by the CAAF’s decision, unless reexamining findings is necessary for the purpose of the remand. See id. As the purpose of the remand was for an “assessment of sentence appropriateness,” a reexamination of findings is not required, and perhaps may not be “permit[ted].” See id. 3. “The record of trial is returned to [ACCA] . . . .” The CAAF’s rules of court distinguish between when the CAAF remands “the case” and when the CAAF remands the “record of trial.” Rules of Practice and Procedure United States Court of Appeals for the Armed Forces, [C.A.A.F. R.] R. 30A (as amended through June 22, 2017). The CAAF “may . . . order a remand of the case or the record to the Court of Criminal Appeals.” Id. (Emphasis added). There is a significant difference between remanding the case and remanding the record. The rule explains: If the record is remanded, the [CAAF] retains jurisdiction over the case. If the case is remanded, the [CAAF] does not retain jurisdiction, and a new petition for grant of review or certificate for review will be necessary if a party seeks review of the proceedings conducted on remand. 4 KELLY—ARMY 20150725 Id. Here, the CAAF remanded the record of trial, not the case. If we read this correctly, 5 our authority in this case is limited, as the CAAF has retained jurisdiction over the case. Or put differently, our jurisdiction on the case only extends to the subject of the remand. 4. “[F]or an assessment of sentence appropriateness . . . .” All parties agree that the CAAF’s remand clearly mandates that this court must conduct a sentence appropriateness review. The disagreement is on what else we may (or must) do. The closest case law we have found on point is appellate litigation of United States v. Riley, 47 M.J. 603 (A.F. Ct. Crim. App. 1997). The CAAF would eventually issue three opinions in that case. 6 It is the first two, however, that shed light on our issue here. Broadly, when the case returned to CAAF after a remand, the CAAF in Riley II found that the Air Force Court of Criminal Appeals (AFCCA) had exceeded the scope of the remand when they used their Article 66(c) fact- finding authority to address matter not required by the remand. See Riley II, 55 M.J. at 187-89. When Riley was first at the AFCCA, our sister court found the evidence of murder to be factually insufficient. 47 M.J. at 608. However, the AFCCA affirmed a lesser-included offense of involuntary manslaughter by culpable negligence. Id. At CAAF, the issue in Riley I was whether it was permissible to convict the accused on a theory of manslaughter that had not been presented to the panel. 50 M.J. at 415-16. The CAAF found that AFCCA erred by affirming the conviction of the lesser-included offense. Id. at 416. The CAAF then requested clarification from AFCCA on the findings because it was unclear whether the AFCCA also found evidence factually insufficient to support a conviction of a lesser-included offense premised on a different theory. Id. The CAAF in Riley I returned the case to the AFCCA using language similar to the remand we received in this case: 5 The quoted language is from the CAAF’s rule on remands for factfinding. The remand here was for a sentence appropriateness review. While sentence appropriateness review may involve factfinding, and is part of our broad Article 66(c) authority, we do not see it as a pure question of fact. While we see no reason why the CAAF would use the same language differently when remanding a case for a sentence appropriateness review, we are cautious about reading too much from our interpretation of our superior court’s rules. 6 United States v. Riley, 50 M.J. 410 (C.A.A.F. 1999) [Riley I]; United States v. Riley, 55 M.J. 185 (C.A.A.F. 2001) [Riley II]; United States v. Riley, 58 M.J. 305 (C.A.A.F. 2003) [Riley III]. 5 KELLY—ARMY 20150725 The decision of the United States Air Force Court of Criminal Appeals is reversed. The record of trial is returned . . . for remand to the Court of Criminal Appeals for clarification of its holding and reconsideration consistent with the principles of due process set out [in the opinion]. Id. On remand from Riley I, the AFCCA concluded that it lacked the power to revisit its earlier finding that the evidence was insufficient to support the unpremeditated murder conviction. United States v. Riley, 52 M.J. 825, 827 (A.F. Ct. Crim. App. 2000). Acting under the belief that the case had been returned with their full Article 66(c) authority intact, the AFCCA affirmed a conviction of involuntary manslaughter, this time based on facts presented to the panel. Id. at 828-30. In doing so, AFCCA reconsidered and modified its previous findings of fact, rather than clarifying the findings as the CAAF’s order directed. See Riley II, 55 M.J. at 189. When the case returned to the CAAF, the first issue in Riley II was whether the AFCCA had the power to reinstate the original conviction for unpremeditated murder. 7 Id. at 187. The CAAF held that under the terms of the original remand, the AFCCA was not permitted to reconsider its finding that the evidence of unpremeditated murder was not factually sufficient. 8 Id. at 188. The CAAF stated that “a Court of Criminal Appeals ‘can only take action that conforms to the limitations and conditions prescribed by the remand.’” Id. (quoting United States v. Montesinos, 28 M.J. 38, 44 (C.M.A. 1989)). The CAAF concluded, “[a] mandate to clarify whether the evidence was insufficient to support a lesser-included offense cannot reasonably be construed to permit reinstatement of the greater offense.” Riley II, 55 M.J. at 188. Addressing the remaining assignments of error, the CAAF also found that the lower court erred when it reconsidered factual determinations made in its initial opinion. See id. at 189. As a result, the CAAF found that the AFCCA exceeded the 7 The CAAF also considered three additional issues of law. One of the additional issues, relevant to this discussion, was whether, upon a remand from CAAF, a Court of Criminal Appeals (CCA) may reconsider and change findings of fact favorable to the defense, if it concludes on reconsideration that its earlier findings of fact were clearly erroneous. Riley II, 55 M.J. at 187. 8 The CAAF found two reasons why the AFCCA did not have the power to reinstate the original conviction, only one of which was that the CCA had exceeded the scope of the remand. See Riley II, 55 M.J. at 188. However, we do not see the CAAF’s language as being dicta, as it was a specific holding of our superior court. 6 KELLY—ARMY 20150725 authority of the remand. Id. The CAAF reiterated the scope of the remand and stated, “a mandate to clarify a finding . . . does not encompass overturning that finding and substituting specific findings . . . .” Id. Applying the CAAF’s reasoning in Riley II to this case, the scope of the remand is limited to determining the appropriateness of the appellant’s sentence in light of our superior court’s decision in this case. A remand “for an assessment of sentence appropriateness” cannot “reasonably be construed” to include consideration of issues that only affect the findings. If for example, we were to consider an assignment of error that went only to findings, and used our fact-finding authority under Article 66(c), UCMJ, to assist in resolving the error, it would be hard to distinguish our action from the AFCCA’s improper actions in Riley. 9 Having construed the remand, we now turn to the issue of whether appellant’s sentence to a dishonorable discharge for abusive sexual contact and sexual assault is an appropriate punishment. B. The Sentence is Appropriate. Appellant argues that his sentence to a dishonorable discharge is inappropriately severe when considering the facts of his case. We disagree. Article 66(c), UCMJ, provides, in relevant part, that we “may affirm . . . the sentence or such part or amount of the sentence, as [we] find correct in law and fact and determine[], on the basis of the entire record, should be approved.” Stated another way, we must determine whether we personally find appellant’s sentence to be appropriate. See United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005). In making this assessment, we give “individualized consideration of the particular accused on the basis of the nature and seriousness of the offenses and the character of the offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citations omitted). Appellant stands convicted of abusive sexual contact and sexual assault of a fellow soldier. For these offenses, he received a sentence to a dishonorable 9 At oral argument, appellant noted that a narrow reading of the CAAF’s mandate could prevent this court from addressing case dispositive developments in the law. See, e.g., United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). In such a case, nothing would prevent us from noting the issue and suggesting to the CAAF that the case might be returned to this court with an expanded mandate. Or, if a remand is viewed as too narrow, an appellant can also request reconsideration of the CAAF’s opinion and seek an expanded remand. These actions reflect that it is the CAAF that controls the scope of the remand, not the parties or this Court. 7 KELLY—ARMY 20150725 discharge, confinement for one year, forfeiture of all pay and allowances, and a reduction to the grade of E-1. Appellant faced thirty-seven years confinement based on his convictions. In our review of the record, the sentence to confinement for one year was more than appropriate, if not lenient. Likewise, a dishonorable discharge, in our assessment, remains appropriate when considering not only the appellant, but the seriousness of his crimes. For these reasons, we find appellant’s sentence, to include the dishonorable discharge, appropriate. CONCLUSION Upon consideration of the matters remanded to this court, the findings of guilty and the sentence remain AFFIRMED. The Clerk of Court is directed to return the record of trial to the CAAF. Chief Judge BERGER, Senior Judge MULLIGAN, Senior Judge BURTON, Judge FEBBO, Judge SALUSSOLIA, Judge HAGLER, Judge ALDYKIEWICZ, and Judge FLEMING concur. FOR THE COURT: MALCOLM H. MALCOLM H. SQUIRES, SQUIRES, JR. JR. Clerk of Court Clerk of Court 8 

257 B.R. 72 (2000) In re Roceliua D. MURPHY, Debtor. Roceliua D. Murphy, Plaintiff, v. Educational Credit Management Corporation, Defendant. Bankruptcy No. 91-07838-TOM-13. Adversary No. 99-00086. United States Bankruptcy Court, N.D. Alabama, Southern Division. November 8, 2000. *73 Dennis G. Pantazis, Birmingham, AL, for Plaintiff. Edward McF. Johnson, Birmingham, AL, for Plaintiff. Jerry O. Lorant, Homewood, AL, for Plaintiff. W. McCollum Halcomb, Birmingham, AL, for ECMC. Ellen Kornblum, Beverly Hills, CA, for AFSA. David P. Rogers, Birmingham, AL, Standing Chapter 13 Trustee. MEMORANDUM OPINION TAMARA O. MITCHELL, Chief Judge. This matter comes before the Court to determine dischargeability of a debt after an Order was entered bifurcating *74 the adversary proceeding. (A.P. Proceeding No. 12). A joint stipulation of facts was submitted by the plaintiff Roceliua D. Murphy (hereinafter "Plaintiff" or "Debtor") and defendants Educational Credit Management Corporation (hereinafter "ECMC") and Academic Financial Services Association Data Corporation (hereinafter "AFSA"). The parties then submitted briefs on the dischargeability issue. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 151, and 157(a)(1994) and the district court's General Order Of Reference Dated July 16, 1984, As Amended July 17, 1984.[1] This is a core proceeding as set out in 28 U.S.C. § 157(b)(2)(I).[2] The Court must decide whether Debtor's discharge from her Chapter 13 case included a discharge from all postpetition student loan interest which accrued during the pendency of her case. This Court has considered the pleadings, briefs and the law, and finds and concludes as follows.[3] I. FINDINGS OF FACT[4] From May of 1985 through September of 1986, Plaintiff received three separate student loan disbursements guaranteed by the U.S. Department of Education.[5] Citibank N.A. was the holder of these loans. On October 11, 1991, the Plaintiff filed a voluntary Chapter 13 petition and her proposed plan was confirmed without objection on February 14, 1992. Citibank requested reimbursement under the loan guaranty and the loans were transferred and assigned to the Higher Education Assistance Foundation (hereinafter "HEAF"). Plaintiff's bankruptcy case file indicates that a claim was filed on behalf of HEAF for $3,944.44 on November 19, 1991. Thereafter, HEAF ceased operations. The claim and loans were then transferred and assigned to the United States Department of Education. The Department of Education then assigned the loans to ECMC.[6] Although the Debtor's case was dismissed on October 2, 1996, the dismissal order was later set aside by the Court upon Debtor's request. Debtor/Plaintiff was then able to make all her payments to the Chapter 13 Trustee and received a discharge from all debts provided for under the plan. The standard discharge order was entered on August 28, 1997 which prohibited all creditors from attempting to collect any debt discharged in the bankruptcy case. (B.K. Proceeding No. 20). It is undisputed that the principal of the student loan debt and all prepetition interest were paid in the case. The dispute concerns postpetition interest that may have accrued on the declining principal balance during the pendency of the case. *75 On March 9, 1998, ECMC sent a letter to the Plaintiff declaring that her student loan was near default and that she should contact ECMC or AFSA to resolve the problem. On March 30, 1998, Plaintiff's counsel[7] wrote AFSA advising that he represented the Plaintiff and that she had paid off her student loans under the plan. He further advised AFSA that their collection attempts were in violation of the Bankruptcy Court's Discharge Order and that he would seek relief from the Court if there were any further attempts at collection. On September 14, 1998, ECMC sent Plaintiff's employer, Caraway Methodist Hospital, a Withholding Order claiming it was entitled to the sum of $2,575.65 and directing the employer to deduct a portion of her check and send payments to ECMC until the amount was paid in full. On January 11, 1999, Ms. Murphy filed suit in the Circuit Court of Jefferson County, Alabama alleging that defendants ECMC and AFSA had wrongfully garnished and converted her wages.[8] She also alleged extortion and invasion of privacy based upon a series of phone calls from the defendants in their attempts to collect the monies allegedly owed. Pursuant to 28 U.S.C. § 1452(a)[9], ECMC removed this case to the United States Bankruptcy Court for the Northern District of Alabama on March 3, 1999. ECMC simultaneously requested that the Plaintiff's bankruptcy case be reopened. (B.K. Proceeding No. 23). The case was reopened on March 11, 1999. (B.K. Proceeding No. 24). On March 12, 1999, Plaintiff filed a Motion to Remand this Adversary Proceeding to the Circuit Court of Jefferson County, Alabama. Based upon an agreement by the parties, this Court entered an Order bifurcating this proceeding for the purpose of first determining the dischargeability of the postpetition interest and then any remaining causes of action would be remanded to the Circuit Court of Jefferson County, Alabama. (A.P. Proceeding No. 12). There being no dispute as to the facts of this proceeding, the parties submitted briefs in support of their respective positions under the law. II. CONCLUSIONS OF LAW A. Nondischargeability It is undisputed that student loans are nondischargeable. 11 U.S.C. § 523(a)(8).[10] However, the Bankruptcy Code does not explicitly address the dischargeability of postpetition interest on student loans. The Plaintiff is correct in its assertion that this Court has not yet addressed this issue. However, with one exception[11], every opinion reviewed by this Court has held that postpetition interest *76 on student loans is nondischargeable.[12] This Court now joins in that majority view. The seminal case on postpetition interest for a nondischargeable debt is Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964). In Bruning, the Court held that a nondischargeable tax debt continued to accrue interest during the pendency of the case. Id. The Court also held the postpetition interest to be nondischargeable and collectible against the debtor personally after the conclusion of the bankruptcy case. Id. at 363, 84 S.Ct. 906. Although Bruning was a pre-Code case, the Eleventh Circuit has explicitly held that the law of Bruning survived the enactment of the Bankruptcy Code and that postpetition interest on a nondischargeable debt is itself nondischargeable. Burns v. United States (In re Burns), 887 F.2d 1541, 1543 (11th Cir.1989).[13] The sole case to hold that postpetition interest is discharged along with the nondischargeable student loan debt is In re Wasson, 152 B.R. 639 (Bankr.D.N.M. 1993). The court in Wasson held that if the underlying student loan and all prepetition interest were paid in full through the plan, the postpetition interest would be discharged along with the underlying debt. Id. at 643. Wasson has been universally criticized as confusing "`the disallowance of unmatured interest with the non-accrual of interest.'" Leeper v. Pennsylvania Higher Education Assistance Agency, 49 F.3d 98 (3rd Cir.1995) (quoting Shelbayah, 165 B.R. at 337). A creditor may not file a claim for unmatured interest and a claim including such interest would be disallowed upon objection. 11 U.S.C. § 502(b)(2). See also Shelbayah, 165 B.R. at 337. ECMC was therefore limited to the repayment of its principal debt and prepetition interest while the Plaintiff's bankruptcy case was pending. See Bell, 236 B.R. at 429. However, interest on the declining balance of the debt continued to accrue at the contract rate during the pendency of the case. See In re Sullivan, 195 B.R. 649, 652 (Bankr.W.D.Tex.1996). While ECMC was prohibited from collecting the postpetition interest from the estate and the Plaintiff was under no obligation to pay the interest to ECMC during the pendency of the case, nothing prevented ECMC from seeking to collect from Plaintiff once she was discharged. See id. Plaintiff's discharge covered only those debts which are dischargeable. The Discharge Order entered by this Court explicitly provided that student loan debts under § 523(a)(8) were not discharged. The fact that Plaintiff paid the entire claim during the case does not control the outcome of this issue. Plaintiff paid the entire principal and prepetition interest claim — but she did not and could not have paid the entire debt in the case. Had ECMC attempted to include postpetition interest in its claim it would have been in violation of § 502 and subject to disallowance. Thus, the postpetition debt did not vanish even though the bankruptcy claim was paid and a discharge entered. The remaining debt was not discharged. "That debt, which pursuant to Bruning includes postpetition interest, was not discharged upon the completion of the debtor's plan." Wagner, 200 B.R. at 165. Thus, ECMC is free to pursue collection of its nondischargeable postpetition interest. B. Policy behind Nondischargeability Congress' main purpose in enacting the Bankruptcy Code was to ensure the insolvent debtor a fresh start by discharging his prepetition debts. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, *77 112 L.Ed.2d 755 (1991) (citing Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). In furtherance of Congress' fresh start policy, the Eleventh Circuit has generally construed exceptions to discharge narrowly. See Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 304 (11th Cir.1994). However, 11 U.S.C. § 523(a)(8) specifically provides that only in certain circumstances will education loans extended by or with the aid of a governmental unit or nonprofit institution solely on the basis of the student's future earnings potential be discharged in bankruptcy.[14] Several reasons have been cited to explain why Congress excepted student loans from a discharge in bankruptcy. One source claims that it was in response to "the perceived need to rescue the student loan program from insolvency, and to also prevent abuse of the bankruptcy system by students who finance their higher education through the use of government backed loans, but then file bankruptcy petitions immediately upon graduation even though they may have or will soon obtain well-paying jobs, have few other debts, and have no real extenuating circumstances to justify discharging their educational debt." Green v. Sallie Mae (In re Green), 238 B.R. 727, 732-733 (Bankr.N.D.Ohio 1999) (citing the Report of the Commission on the Bankruptcy Laws of the United States, H.R. DOC. NO. 93-137, 93d Cong., 1st Sess., Pt. II 140, n. 14). Another source claims that Congress enacted 11 U.S.C. § 523(a)(8) to ensure that these kinds of loans could not be discharged by recent graduates who would then pocket all future benefits derived from their education. See Andrews University v. Merchant (In re Merchant), 958 F.2d 738 (6th Cir.1992) (citing H.R. REP. NO. 95-595, 95th Cong., 1st Sess. 466-75 reprinted in 1978 U.S.C.C.A.N. 5787). These same policy concerns which persuaded Congress to declare student loans nondischargeable also dictate that postpetition interest on these loans survive bankruptcy.[15] III. CONCLUSION The great weight of the case law regarding the postpetition interest on nondischargeable student loan debts makes it clear that this interest is itself nondischargeable. Once Plaintiff was discharged from her Chapter 13 case, the defendants were free to pursue collection from her personally. Consistent with its order of May 20, 1999, this Court also directs that any remaining causes of action are remanded to the state court from which this action arose. Accordingly, it is hereby ORDERED, ADJUDGED, AND DECREED that the balance of the debt owed to ECMC which is postpetition interest on a student loan is hereby determined to be NONDISCHARGEABLE. The Clerk's office is directed to return the original action from the Circuit Court of Jefferson *78 County, Alabama to said court after the expiration of the time for appeal. NOTES [1] The General Order of Reference Dated July 16, 1984, As Amended July 17, 1984 issued by the United States District Court for the Northern District of Alabama provides: The general order of reference entered July 16, 1984 is hereby amended to add that there be hereby referred to the Bankruptcy Judges for this district all cases, and matters and proceedings in cases, under the Bankruptcy Act. [2] 28 U.S.C. § 157(b)(2)(I) provides: (b)(2) Core proceedings include, but are not limited to — (I) determinations as to the dischargeability of particular debts. [3] This Memorandum Opinion constitutes findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52, applicable to adversary proceedings in bankruptcy pursuant to Federal Rule of Bankruptcy Procedure 7052. [4] Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of the contents of its own files. See ITT Rayonier, Inc. v. U.S., 651 F.2d 343 (5th Cir. Unit B July 1981); Florida v. Charley Toppino & Sons, Inc., 514 F.2d 700, 704 (5th Cir.1975). [5] Most of the facts are taken from the Parties' Stipulated Statement of Facts. (A.P. Proceeding No. 23). Any additional facts are noted with their source. [6] ECMC is a non-profit Minnesota corporation created at the request of the Department of Education under the Federal Family Education Loan Program for the purpose of collecting student loan debts. [7] Robert D. Reese wrote this letter and served as Plaintiff's counsel during her bankruptcy case. [8] The case number of the state court suit was CV-99-0157. [9] 28 U.S.C. § 1452(a) provides: (a) A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police power or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. [10] 11 U.S.C. § 523(a)(8) provides: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt — (8) for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor's dependents[.] [11] See In re Wasson, 152 B.R. 639 (Bankr. D.N.M.1993). [12] See, e.g., Leeper v. PHEAA, 49 F.3d 98 (3rd Cir.1995); Great Lakes Higher Educ. Corp. v. Pardee (In re Pardee), 218 B.R. 916 (9th Cir. BAP 1998), aff'd 193 F.3d 1083 (9th Cir. 1999); Bell v. Educ. Credit Mgmt. Corp. (In re Bell), 236 B.R. 426 (N.D.Ala.1999). [13] Burns adopted the analysis of Hanna v. United States (In re Hanna), 872 F.2d 829 (8th Cir.1989). [14] See supra note 10. [15] However, notwithstanding these policy concerns, Congress also realized that not all student debtors abuse the bankruptcy system, and that some student debtors are in true need of bankruptcy relief. Thus, Congress determined that an absolute bar to the dischargeability of student loan debts would be too harsh, and also unnecessary to effectuate the foregoing policy goals. Consequently, unlike other types of debt, such as alimony and child support for which a debtor cannot receive a bankruptcy discharge, Congress permitted student loan debts to be discharged if the debtor could demonstrate extenuating circumstances. Specifically, Congress provided that a debtor who finances his or her higher education may seek to receive a bankruptcy discharge on an educational loan if the debtor can demonstrate that excepting the debt from discharge would impose an "undue hardship" on the debtor and the debtor's dependents. This issue is governed by 11 U.S.C. § 523(a)(8). To obtain a determination that a student loan (and/or the postpetition interest thereon) should be discharged pursuant to § 1328, a debtor must file an adversary proceeding and prove the requirements pursuant to 11 U.S.C. § 523(a)(8). FED. R. BANKR. P. 7001(6). See Morris v. United States (In re Morris), AP No. 00-00015-TOM-7 (Bankr. N.D.Ala. April 4, 2000)(Mitchell, C.J.), McCormick v. ECMC (In re McCormick), A.P. No. 99-00035-TOM-7 (Bankr.N.D.Ala. Jan. 3, 2000)(Mitchell, C.J.).

390 So.2d 1109 (1980) Tony Glen ALLRED v. STATE. 8 Div. 349. Court of Criminal Appeals of Alabama. June 30, 1980. Rehearing Denied July 29, 1980. *1110 Robert Straub, Decatur, for appellant. Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee. HARRIS, Presiding Judge. Appellant was put to trial upon a two-count indictment charging him with assault with intent to rob and assault with intent to murder. Throughout the trial proceedings he was represented by counsel of his choice and at arraignment pleaded not guilty. The jury returned a verdict finding him guilty under both counts of the indictment and the court sentenced him to ten years imprisonment in the penitentiary. After sentence was imposed he gave notice of appeal and trial counsel represents him on appeal. There was no motion to exclude the State's evidence; there was no motion for a new trial; no exceptions were reserved to the court's oral charge, but there was a written request for the affirmative charge which, of course, was refused. Mrs. Jill Ann Love, the victim, was working at Handy Foods Store located on 8th Street, S.W., in Decatur, Morgan County, Alabama, on May 20, 1978, when she was stabbed six times by a young white male. She was alone in the store when this man entered the store and began looking around. May 20th was the first time Mrs. Love worked the late night shift. The young man asked Mrs. Love for some thin spaghetti and he was directed to the last aisle in the store. He did not find the kind of spaghetti he wanted and he asked Mrs. Love the price of an item in the frozen foods section. In the meantime another young white male came in the store and talked to the first man a few seconds and left the store. Mrs. Love stated that the first one to enter the store remained twenty-five or thirty minutes just looking around and she kept watching him. He *1111 was not disguised in any manner and she had a clear view of his face. This young man, later identified as appellant, asked Mrs. Love the price of the french fries. Mrs. Love did not know the price and walked to the frozen foods section where appellant was standing. She opened the top and the first package did not have a price on it. She picked up the second package and told him the amount was $1.15. As she stood up next to appellant he grabbed her and began to stab her. He stabbed her six times, threw her on the floor and went to the cash register and pushed the buttons making a ringing noise. She heard the ringing sound and it appeared to her that he was pushing the buttons trying to get the register open. Mrs. Love further testified that the exit and entrance doors had bells attached to them and while she lay prostrate and bleeding on the floor she heard these bells ring but did not know if the second young man who talked to appellant a few seconds earlier had returned. After hearing these bells ring the second time Mrs. Love got up from the floor and ran from the store calling a Mrs. Woods next door. Mrs. Woods' grandson came to the aid of Mrs. Love and assisted her to Mrs. Woods' yard. He then called the police and the ambulance. She was taken to the hospital for treatment of the stab wounds and remained in the hospital about two weeks. Mrs. Love said she saw her assailant's face several times during the period of time he was in the store at close range and at times when they were standing side by side. She made a positive in-court identification of appellant as the person who stabbed her and threw her to the floor. She did not see her assailant from the date of the attack until 15th of October, 1978, when she saw him at a U-Totem Store on Sandlin Road. She was sitting in a car at the U-Totem Store waiting for her husband who was in the store when appellant got out of a car. She recognized him and got the number on the license tag, and she and her husband drove home and called the police and gave them the tag number. On cross-examination she testified that she talked to an unidentified officer at the hospital following the attack on her but did not know if he wrote down her statement. Later she talked to Detectives Collier and Crowell. She told them her assailant was wearing a reddish t-shirt and blue jeans. The shirt was short-sleeved. He was not wearing glasses and did not have a beard or mustache. She admitted that at the preliminary hearing she was uncertain about the mustache. She further said he was five feet, six or seven inches tall. At the U-Totem Store in October they pulled in behind the car occupied by appellant, which was a Toyota or Volkswagen stationwagon occupied by three people, appellant, another boy and a girl. She stated appellant went into the store, came out and went to a telephone booth. Prior to the time she saw appellant at the U-Totem Store she had viewed a number of photographs but appellant was not in that photographic array. On October 17, 1978, she viewed a handful of photographs and picked out a photograph of appellant. On redirect examination she testified she did not go back to work after being released from the hospital because she was afraid. Sergeant Kenneth Collier of the investigative division of the Decatur Police Department testified that he and Sergeant Crowell processed the Handy Food Store after the crime. They made photographs of the store and Sergeant Collier testified as to the accuracy of the scene depicted in these photographs and they were admitted into evidence over the objection of appellant. Sergeant Robert Clark of the Decatur Police Department was called as a defense witness and testified that he received a telephone call from Mrs. Love on October 15, 1978, in which conversation she gave him the tag number of the car parked at the U-Totem Store. He traced the tag number and found that it was registered in the name of Hubert Allred, appellant's father. Later he called Mrs. Love to the police station and showed her a number of photographs including one of appellant. *1112 Mrs. Love unhesitatingly and unequivocally identified the photograph of appellant. On October 17, 1978, Sergeant Clark conducted a lineup consisting of five persons. Mrs. Love, without the slightest hesitation, identified appellant as her assailant. The officer then removed Mrs. Love from the viewing room while the positions of the five people were rearranged. Then Mrs. Love was returned to the viewing room and again identified the appellant. On cross-examination he identified State's Exhibit 8 which was a photograph of the five persons in the lineup. The photograph was introduced into evidence. Appellant testified that he was 19 years of age at the time of the trial and would be 20 on May 6, which made him 17 at the time the crime was committed. He had a twelfth grade education and took a GED test after serving a short time in the Marines. At the time the offense allegedly occurred he was employed by Mr. James Guyse putting in central air and heat. He emphatically denied the stabbing. He stated he had been in the store a number of times both before and after Mrs. Love was stabbed. The store was on the route from his home to the place where his mother worked and he often took her to her place of employment. He said he had never seen Mrs. Love before and knew nothing about the stabbing. He stated he did not carry a knife and never had. He had been in and around Decatur from the time of the offense until the trial, but he could not state where he was at the time and place of the stabbing. From the record: "Q. Were you in that store on May 21, 1978, looking for spaghetti and french fries? "A. No, sir. I am not saying I wasn't in the store. I could have been over there, because I don't know where I was at, but I know I wasn't in there doing anything wrong." He further testified that he was presently employed as a caretaker at Johnson's Chapel in the Danville Cemetery taking care of the cemetery and digging graves. On cross-examination he testified that he had stopped at this store many times as it was just a handy place to stop when he needed to stop there. He was asked when the stabbing took place and replied and responded, "It happened in May; I know that." He admitted he heard all the witnesses testify but he still maintained he didn't stab Mrs. Love. He again said he did not know where he was on May 21, 1978. Appellant's mother and four other witnesses testified appellant enjoyed a good reputation in the community; that his reputation for truth and veracity was good, and they would believe him on his oath. Appellant contends that his sole defense was an alibi and the trial court failed to adequately charge the jury on the law of alibi and erred to a reversal in refusing to give his requested charge no. 6. This charge reads as follows: "The Court charges the jury that if you are reasonably satisfied from the evidence in this case that the defendant was at some other place and was not at the Handy Food Store, at the time and place testified to by the State's witnesses, then, under the law, it will be your duty to find the defendant not guilty." The court charged the jury on the law of alibi in the following language: "The defendant has among other defenses plead what we know in the law as an alibi. An alibi in effect means that the defendant was not present at the time and place in question, and therefore could not have committed the offense. You look to all the evidence from the case to determine from that evidence whether or not you are satisfied from the evidence beyond a reasonable doubt that he was present at the time and place in question, and whether or not he is the one who participated in the acts of violence which are charged here in this indictment. Use your common sense and judgment, as I stated before." The above portion of the court's oral charge adequately and sufficiently covered *1113 the law of alibi. If the jury was uncertain as to what action they should take if they believed appellant's alibi was proven that uncertainty was completely dispelled by given charge no. 5. Given charge no. 5 is as follows: "The defendant sets up an alibi in the case, and the burden of proof is not changed when he undertakes to prove it, and, if by reason of the evidence in relation to such alibi, when considered with all other evidence, the jury entertain a reasonable doubt as to defendant's guilt, he should be acquitted, although you may not be able to find that the alibi has been fully proven." The law is well settled that a refused charge, stating correct principles of law, which is adequately and substantially covered in the court's oral charge or in given charges does not constitute error. Langley v. State, Ala.Cr.App., 381 So.2d 223; Section 12-16-13, Code 1975, and the cases there annotated. We have repeatedly held that a conflict in alibi testimony and identification testimony is peculiarly within the province of the jury to resolve. Smith v. State, 53 Ala.App. 27, 296 So.2d 925; Lindsey v. State, Ala.Cr.App., 331 So.2d 797; Mullins v. State, Ala.Cr.App., 344 So.2d 539. See Ala. Dig., Criminal Law, Key No. 747, for a collection of cases on this proposition of law. Next appellant contends the trial judge made two remarks that prejudiced his case and this case should be reversed because of these statements. The first of these statements was made at the beginning of the trial and before any evidence was taken. The court stated: "We are entering the case of the State of Alabama vs. Tony Glen Allred. This is a charge of assault with intent to rob and assault with intent to murder. Give me your attention, jurors, just one minute please. We will ask that no other jurors remain in the courtroom because of another case that is to be tried that may have something that would interlock it with this case to some extent. You should not be exposed to that." Because of this statement appellant made an objection and a motion for a mistrial without assigning any grounds. The court overruled the motion for a mistrial. We are not convinced that appellant was prejudiced in any manner, form or fashion. The remark was not addressed to the jury sworn and empanelled to hear this case but to the other prospective jurors present in the courtroom. From the record we cannot say the jury in the present case even heard the statement and if they did, whether they had any idea that appellant was charged with another offense. In McCovery v. State, Ala.Cr.App., 365 So.2d 358, this court held: "Remarks by the trial judge may be open to criticism, but they are not error unless they have affected the result of the trial. (Case omitted). It is not every erroneous expression of opinion by a trial judge, during trial, that will furnish a ground for reversal. To do so it must, in some manner, influence the result of the cause, or be supposed to do so." (cases omitted). The statement made by the trial judge in this case was harmless and certainly there was no error in denying the motion for a mistrial. The second statement complained about was made at the close of the court's oral charge to the jury: "Ladies and gentlemen, we are going to let you retire to the jury room over on your front right and consider your verdict. Some time later in the afternoon if you do not reach a verdict, then we will let you go to the motel for the night. If you do reach a verdict, of course, we will discharge you until tomorrow. But do not let that affect your judgment one way or the other in the case. Give it full consideration and take such action as you think is proper according to the instructions and the evidence in the case. You can retire now." Appellant's counsel responded as follows: "Judge, I would like to enter an objection. The court said if they didn't reach *1114 a verdict he was going to send them to the motel for the night." From the record: "The Court: Do you have my full statement about that, about that not affecting their verdict in any way? "The Reporter: Yes, sir. "The Court: Overruled." "Mr. Straub: We except, to that statement." Appellant contends, in brief, that this "had the effect of coercing the jury to return a speedy verdict or spend the night sequestered." We do not construe the remark of the trial judge as coercive or threatening. He charged them in plain terms not to let that affect their judgment one way or the other but to give the case full consideration according to the instructions of the court and the evidence in this case. McCovery v. State, supra. Finally, appellant contends the trial court erred in allowing the State to bolster the testimony of the chief prosecuting witness, Mrs. Love. We do not agree. On cross-examination appellant's astute and resourceful counsel tried by every honorable means known to a trial lawyer to cast doubt on Mrs. Love's identification of appellant as her assailant. On redirect the prosecutor asked Mrs. Love the following question: "Is there any doubt in your mind whatsoever that the defendant seated over there at the table is the individual who stabbed you 6 times out there on May 20th, 1978, at the Handy Food Store?" Counsel for the appellant objected "on the grounds that that is what the jury is to decide." The objection was overruled. The question was not answered but was reframed: "Q. Is there any doubt in your mind whatsoever that the defendant seated over here at the table by his attorney, Mr. Straub, is the person who stabbed you 6 times on May 20th, 1978, at the Handy Food Store here in Decatur?" "A. No, sir, there is no doubt." There was no objection to the question as reframed. Absent an objection and an adverse ruling nothing is presented to this court for review. Review on appeal applies only to rulings by the trial court. Cooper v. State, Ala.Cr.App., 331 So.2d 752; Ala.Dig. Criminal Law, Key No. 1030(1). We have carefully searched the record for errors affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed. AFFIRMED. All the Judges concur.

427 F.2d 43 PANKEY LAND AND CATTLE COMPANY, on behalf of itself and allothers similarly situated, Appellant,v.Clifford M. HARDIN, The Secretary of Agriculture of theUnited States of America, Appellee.PANKEY LAND AND CATTLE COMPANY, on behalf of itself and allothers similarly situated, Appellant,v.Walter J. HICKEL, The Secretary of the Interior of theUnited States of America, Appellee. Nos. 352-69, 353-69. United States Court of Appeals, Tenth Circuit. June 1, 1970. James L. White and William J. Carney, Jr., Denver, Colo. (George T. Harris, Jr. and Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, N.M., of counsel on the brief), for appellant. Thomas L. McKevitt, Dept. of Justice, Washington, D.C. (Shiro Kashiwa, Asst. Atty. Gen., Victor R. Ortega, U.S. Atty., John A. Babington, Asst. U.S. Atty., Albuquerque, N.M., and S. Billingsley Hill, Dept. of Justice, Washington, D.C., with him on the brief), for appellees. Before PICKETT, Senior Circuit Judge, HILL and HICKEY, Circuit Judges. HICKEY, Circuit Judge. 1 Appellant livestock operators sought judicial review of administrative action taken by the Secretary of the Interior and the Secretary of Agriculture. The trial court found the relief sought was available only through legislative or executive channels and dismissed the claim on its merits. 2 The issue presented is whether the federal administrative agencies, which by virtue of statute have been delegated power to establish 'reasonable' grazing permit fees, exceed their authority when they do not consider certain relevant actual costs in order to establish a fee increase. 3 The appellant Pankey Land & Cattle Company, a ranching corporation in New Mexico, sues for itself and those similarly situated in a consolidated class action. The claims are directed against the Secretary of the Interior, who is the chief officer of the executive branch of government in charge of public grazing lands administered by the Bureau of Land Management, and the Secretary of Agriculture, a similarly situated officer in charge of the National Forests who administers livestock grazing thereon. Each officer sets fees pursuant to the statutory authority vested in him. 4 The basis of the fee increase by each agency was the 'Western Livestock Grazing Survey,' undertaken during 1966. The results of the survey suggested a grazing fee increase to $1.23 per Animal Unit Month (A.U.M.). 5 In November, 1968, both agencies adopted a new fee schedule increasing the fees by gradual fee hikes over a 10 year period to accomplish the total suggested by the survey. The 1969 fee was accordingly set at 44 cents per A.U.M. The 1968 fee set by the Bureau of Land Management was 33 cents per A.U.M. and the fee on Forest Service land was 51 cents per A.U.M. The difference between the pasture fees on private lands as compared with public lands was used by the survey as a comparison by which fee increases were justified. 6 The foregoing element of the survey is attacked because the estimate of costs on public pastures does not include an interest charge on the capital investment made on public pastures by the permittees pursuant to 43 U.S.C. 315c, nor on the investment made in a grazing permit. 7 Parties to the litigation agree that there is legislative authority for establishing a reasonable fee. The Secretary of the Interior's authority is derived from 43 U.S.C. 315b and the Secretary of Agriculture relies on 16 U.S.C. 551 and 580l. See Light v. United States, 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911). Each secretary undertook the fee change pursuant to the directive of 31 U.S.C. 483a. 8 The jurisdictional allegations of the claim and the pretrial order indicate that this is in the nature of judicial review of an act of a federal agency. The proceedings are not specifically authorized by statute in relation to the agency action complained of but are based upon general statutory review provisions, 28 U.S.C. 1331, 1332, 1337, 1361 and 2201, 5 U.S.C. 702, and the allegation that grazers are being deprived of property without due process of law under the fifth amendment of the Constitution. 9 The theory is identified in 81 Harv.L.Rev. 308 at 322 (1967-68) as non-statutory judicial review and judicial review under the Administrative Procedure Act. 10 The central issue upon which the arguments are focused is the scope of the discretion or power delegated to the Secretary of the Interior and the Secretary of the Department of Agriculture. 11 The sections granting the authority are not challenged herein but the discretion exercised by the officers in failing to consider elements which would effect the value spread between public grazing fees and private grazing fees is challenged. 12 Although the rule laid down in Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) has been criticized by many writers,1 this court adopted it in Cotter Corp. v. Seaborg, 370 F.2d 686 (10th Cir. 1966). Therefore we must examine the record to determine if the secretaries were acting within the scope of their Congressionally delegated duties. If they were, their actions are the sovereign's actions and thereby immune from review by a federal court. 13 As related above, there is complete accord that the statutory authority for setting fees exists. The question determined by the trial court was that the fees based upon the 1966 survey were reasonable and not illegal nor in conflict with the secretaries' statutory authority. 14 It is contended by appellants that their vested interest in the permits is not considered in the survey and, therefore, it was an illegal basis for the graduated increase in the fees. 15 As this court has previously held, 'Although the permits are valuable to the ranchers, they are not an interest protected by the Fifth Amendment against the taking by the Government who granted them with the understanding that they could be withdrawn * * * without the payment of compensation.' United States v. Cox, 190 F.2d 293, 296 (10th Cir.) cert. denied, 342 U.S. 867, 72 S.Ct. 107, 96 L.Ed. 652 (1951). The nature of the permit as above related was recently affirmed by this court. Porter v. Resor, 415 F.2d 764, 766 (10th Cir. 1969). 16 The foregoing establishes the lack of a recognizable interest in the permit, and therefore the claim must rest upon the contention that the officers abused their discretion. 17 This court said, '(the) abuse of discretion does not impose liability on the United States.' United States v. Morrell, 331 F.2d 498, 502 (10th Cir.) cert. denied, Chournos v. United States, 379 U.S. 879, 85 S.Ct. 146, 13 L.Ed.2d 86 (1964). 18 In the light of the foregoing and absent a Congressional declaration in the Taylor Grazing Act establishing the right to review these administrative actions as here contended for by appellants, we must affirm the trial court. 19 We note, however, that executive intervention has stayed the hand of the fee collector and a moratorium now prevails denying further graduated increase. We also note that pending cases in this circuit were considered at staff level on the issue of grazing fee structure. Letter to Honorable Lee Metcalf, United States Senate, December 23, 1969, reproduced in the Congressional Record. 116 Cong.Rec. E5 (Extension of Remarks, daily ed. Jan. 19, 1970). It would seem the relief sought from the courts is made moot by the executive intervention. 20 The trial court is affirmed. 21 Affirmed. 1 Byse and Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and 'Nonstatutory' Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308 at 338 (1967-68)

692 A.2d 318 (1997) STATE of Rhode Island, DEPARTMENT OF MENTAL HEALTH, RETARDATION, AND HOSPITALS v. RHODE ISLAND COUNCIL 94, A.F.S.C.M.E., AFL-CIO RHODE ISLAND COUNCIL 94, A.F.S.C.M.E., AFL-CIO v. STATE of Rhode Island, DEPARTMENT OF MENTAL HEALTH, RETARDATION, AND HOSPITALS. No. 95-535-APPEAL. Supreme Court of Rhode Island. April 4, 1997. *319 Gerard P. Cobleigh, Warwick, for Plaintiff. John Breguet, Cranston, for Defendant. Before LEDERBERG, BOURCIER and FLANDERS, JJ. OPINION FLANDERS, Justice. Can a department of state government bargain away its statutory responsibility to provide for the health and safety of its disabled, custodial patients by agreeing to arbitrate whether certain of its health-care employees (who are paid to look after these patients) can decide for themselves how many consecutive hours they will work when the state needs overtime help? In the circumstances of these consolidated cases, we answer this question in the negative and therefore reverse a Superior Court order confirming an arbitration award striking down a sixteen-consecutive-work-hours cap established by the state for these health-care employees. The Rhode Island Department of Mental Health, Retardation, and Hospitals (variously the state or the department), appeals from two Superior Court orders that collectively confirmed an arbitrator's award rejecting the state's attempt to limit the consecutive hours that the department's public-health-care employees may work without taking time off from their jobs when the state needs overtime help. One order denied the state's motion to vacate the award in favor of Rhode Island Council 94, A.F.S.C.M.E., AFL-CIO (the union), and the other order granted the union's motion to confirm the award. The arbitrator found that the state violated the parties' collective-bargaining agreement (CBA) when it instituted a rule limiting public-health-care employees at the Institute of Mental Health (IMH) and the State's General Hospital (hospital)[1] to working no more than two consecutive eight-hour shifts. Because we believe that the decision striking down the department's sixteen-consecutive-work-hours cap exceeded the arbitrator's powers, we reverse the Superior Court's orders and vacate the award. We hold that the department's power to establish a maximum-consecutive-work-hours cap for those health-care employees who work with its custodial patients was not properly arbitrable because it conflicts with the nondelegable managerial duties of the department and its director to provide for the safety and the welfare of these disabled, custodial patients and for the protection of the public's health.[2] A panel of the Supreme Court heard this matter pursuant to an order directing both parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After reviewing the record, considering the legal memoranda submitted by the parties, and listening to their counsel at oral argument, we determine that cause has not been shown. Accordingly, we shall proceed to decide this appeal without further briefing or argument. Facts and Travel The union represents state employees in two separate bargaining units at the IMH and at the hospital. All employees work under constant supervision and provide direct care to patients who are elderly and/or physically or mentally disabled. Intermittently, when it is "necessary for the efficient conduct of the business of the [s]tate," the CBA provides that "an appointing authority [of the state] * * * direct[s] or authorize[s] overtime work."[3] The state offered overtime assignments to employees on a rotational *320 basis, but under the CBA it could only require these employees to work overtime if it could not muster sufficient volunteers. However, the CBA also provides that the department's health-care employees cannot be compelled to work more than sixteen consecutive hours, the equivalent of two consecutive shifts, except in a state emergency. Conversely, there was no express contractual limit on the number of consecutive hours for which these employees could volunteer to work when the department needed overtime help. Accordingly, on various occasions in the past, employees would volunteer to work three consecutive shifts, or twenty-four straight hours. Moreover, it was at least theoretically possible that an employee could work additional consecutive shifts. In January 1992, concerned about the length of time its health-care employees could volunteer to work in one stretch without creating adverse health risks for the patients in its care, the department implemented a rule limiting these employees to two consecutive eight-hour shifts except in a state emergency. The union responded by filing grievances[4] protesting the state's new policy. These grievances were not settled, and the parties ultimately submitted the matter to arbitration.[5] The union claimed that the department had a long-standing practice of allowing employees to work more than two consecutive shifts on a voluntary basis and that the CBA's past-practices clause[6] insulated this custom from the state's attempt to bypass the collective-bargaining process and thereby unilaterally change the status quo. The state claimed that the grievances were "not arbitrable" because two prior awards involving the parties, one issued in 1979 and the other in 1991, each of which was "final and binding" upon the parties, precluded litigation of these same issues under the principles of res judicata and collateral estoppel.[7] According to the state, those awards allowed the department to limit the amount of overtime an employee could work. The state further argued that even if the grievances over the consecutive-work-hours cap were arbitrable, they should be denied because such a directive was a valid exercise of a contractual managerial right[8] and was consistent *321 with the state's obligation under the CBA to provide and maintain safe working conditions.[9] As for the union's past-practice argument, the state asserted that although employees were permitted to work in excess of two consecutive shifts prior to 1992, it did not thereby forfeit its inherent managerial right to limit such overtime in the future merely by not having chosen to exercise that authority in the past. The arbitrator distinguished the two prior awards and found that the grievances were arbitrable. On the merits the arbitrator concluded that the past practice of allowing employees to work voluntarily more than two consecutive shifts was a protected privilege and an employee benefit that limited the state's inherent managerial rights. He therefore decided that the state violated the CBA when it instituted the rule limiting the number of consecutive shifts employees could work. Consequently he ordered that "[t]he limitation * * * be removed immediately." Each party filed motions in separate proceedings in the Superior Court: the state requested an order vacating the award, and the union requested an order confirming the award. The Superior Court, after consolidating the proceedings, found that the award was rational and that it drew its essence from the CBA; therefore, it granted the union's motion to confirm and denied the state's motion to vacate. The state now seeks reversal of the Superior Court's confirmation of the award on several grounds. According to the state, the award resulted from the arbitrator's determination of a "nonarbitrable" issue in that it conflicts with the statutory authority of the director of the department. The state also claims that the award does not derive its essence from the CBA and contravenes public policy. Finally, the state contends that the arbitrator usurped the state's contractually protected managerial right "to set reasonable limits as to how many hours one [employee] can work." The union argues that the Superior Court's orders must be affirmed under settled Rhode Island law limiting the scope of this court's review of the Superior Court's confirmation of an arbitrator's award. Analysis General Laws 1956 § 28-9-13(1) provides that "[a] party who has participated in any of the proceedings before [an] arbitrator * * * may object to the confirmation of the award only on one or more of the grounds hereinafter specified." The specified ground that is applicable to this matter is provided at § 28-9-18(a)(2): a "court must make an order vacating the award * * * [w]here the arbitrator * * * exceeded [his or her] powers." See Pawtucket School Committee v. Pawtucket Teachers' Alliance, Local No. 930, American Federation of Teachers, 652 A.2d 970, 972 (R.I.1995) (affirming Superior Court's enjoining of arbitration award because "requirements of state law * * * cannot be submitted to arbitration"); Rhode Island Laborers' District Council v. State, 592 A.2d 144, 146 (R.I.1991) (in affirming Superior Court's vacating of arbitrator's award, court noted that an "arbitrator may not substitute his or her judgment for that of appointing authority" who had been statutorily given power and duty to supervise operations of District Court); see also Jacinto v. Egan, 120 R.I. 907, 923, 391 A.2d 1173, 1181 (1978) (Weisberger, J., dissenting) ("the appropriate rule to follow in respect to enforcement or review of an arbitrator's decision might be derived from a literal reading" of the "`exceeded their powers'" language of what is now § 28-9-18(a)(2)). We are of the opinion not only that the arbitrator exceeded his powers in this case because the dispute at issue was nonarbitrable but also that the submission of such a *322 dispute to arbitration constituted a usurpation of the exclusive statutory authority of the department and its director "to insure the comfort and promote the welfare of the patients." Section 40.1-5-3(7).[10]Cf. Pawtucket School Committee, 652 A.2d at 972 ("[w]e have stated clearly that while the school committee can negotiate many items with the professional and nonprofessional employees of the system, it cannot bargain away statutory powers and responsibilities[;] * * * requirements of state law * * * cannot be submitted to arbitration"); Rhode Island Laborers' District Council, 592 A.2d at 146 ("there are limits to the extent that a statutory power and responsibility may be bargained away in a labor contract"); see also Belanger v. Matteson, 115 R.I. 332, 359, 346 A.2d 124, 140 (1975) (Paolino, J., concurring in part and dissenting in part) (discussing School Teachers' Arbitration Act; stating further that "some disputes, being formally designated as matters of management * * * do not properly fall within the ambit" of arbitrability). Preliminarily we acknowledge that our review of the merits of an arbitration award is extremely limited.[11] Our job is to determine whether the Superior Court erred as a matter of law in upholding the challenged award. State v. Rhode Island State Police Lodge No. 25, 544 A.2d 133, 136 (R.I. 1988); Belanger, 115 R.I. at 356, 346 A.2d at 138 ("[e]xcept for complete irrationality, arbitrators are free to * * * determine the facts of a dispute before them without their award being subject to judicial revision");[12]see generally Prudential Property and Casualty Insurance Co. v. Flynn, 687 A.2d 440, 440 (R.I.1996) ("reaffirm[ing] our long-standing practice of upholding arbitration awards absent extraordinary circumstances"). However, this is not an instance of "[j]udicial reversal of an arbitration award based solely upon a disagreement with the arbitrator's interpretation of the contract * * *." Jacinto, 120 R.I. at 916, 391 A.2d at 1178. On the contrary, our disagreement is not with the arbitrator's interpretation of the CBA (in regard to which we express no opinion) but with the underlying premise that gave rise to that interpretation: the arbitrability of a dispute concerning whether the state's health-care employees may unilaterally decide to work as many consecutive hours as they want to work when the state needs overtime help to care for its disabled, custodial patients. Whereas we acknowledge that an arbitrator is "necessarily * * * called upon to make rulings concerning the applicable law and to interpret the law according to the facts," Vose v. Rhode Island Brotherhood of Correctional Officers, 587 A.2d 913, 914 (R.I. 1991), and that questions of law are not "per se" nonarbitrable, id., that acknowledgment does not insulate the arbitrator's interpretation of the law from judicial scrutiny. See § 28-9-18(a)(2) (court must vacate an award where "arbitrators exceeded their powers"). Indeed, we implied as much in Vose when we refuted the suggestion that questions of law are per se nonarbitrable. Like a judge sitting *323 without a jury, an arbitrator necessarily interprets the law and facts, and his or her decision is similarly subject to further judicial review. Furthermore, contrary to our highly circumscribed review of the merits of an award, "the issue of whether a dispute is arbitrable concerns a question of law and is subject to a broader standard of review than is the arbitrator's decision on the merits. * * * Courts should not equate the issue of arbitrability with the deference due the arbitrator's interpretation of the contract. * * * Rather, a reviewing court must decide the question of arbitrability de novo." Providence Teachers' Union Local 958 — American Federation of Teachers v. Providence School Committee, 433 A.2d 202, 205 (R.I.1981). See also Rhode Island Brotherhood of Correctional Officers v. State, 643 A.2d 817, 820 (R.I.1994) ("`because arbitration is a creature of the agreement, the preliminary issue for a reviewing court must be whether the parties derive from the contract an arbitrable grievance'"); Town of Coventry v. Turco, 574 A.2d 143, 147 (R.I.1990) ("[a]lthough public policy favors the final resolution of disputes * * * by arbitration, this policy relies on the premise that arbitrators act within their power and authority"). First, we observe that the trial justice erroneously relied upon Coventry Teachers' Alliance v. Coventry School Committee, 417 A.2d 886 (R.I.1980), to find that the state was "barred from raising any question of substantive arbitrability once it has participated in the arbitration." See id. at 889 ("[a] party who has participated in arbitration proceedings cannot later seek to vacate the award on the ground that the controversy was not arbitrable"). Later decisions make clear that Coventry Teachers' Alliance was "never intended [to bar] * * * judicial review when a party has preserved its objection at the arbitration hearing." Providence Teachers' Union, 433 A.2d at 204; see also State v. Local No. 2883, American Federation of State, County and Municipal Employees, 463 A.2d 186, 189 (R.I.1983) ("[i]t is well settled in this jurisdiction that if a party objects to substantive arbitrability at the arbitration hearing and then proceeds to arbitration, the party has preserved the issue for later determination by a reviewing court"). Because the state objected to arbitrability at the hearing, it preserved the issue for review by the courts. In any event, because the issue to be arbitrated implicated the state's nondelegable duties to "take all necessary steps to promote the health" of its custodial mental patients, § 40.1-2-16, and other disabled persons in its custody and to "provide for [their] proper care," § 40.1-5.3-1, this matter would still be properly before us even if the state had failed to object to arbitrability. This is so because we deem "the question of substantive arbitrability, the right to have the grievance heard in arbitration at all, [to be] the equivalent of subject matter jurisdiction in the courts." Nathan & Green, Challenges to Arbitrability, in 1 Labor and Employment Arbitration § 13.01[4], at 13-12. Second, the fact that the state submitted an issue to arbitration does not operate to lessen the scrutiny with which we review the question of arbitrability, especially when the question is not merely of contractual interpretation (that is, whether and to what extent the parties did agree to arbitrate) but of statutory authority (that is, whether and to what extent the parties could agree to arbitrate away a power that is statutorily given to the department and its director). More specific to this case, the critical question is: when does the determination of an otherwise arbitrable issue impermissibly infringe upon the statutory authority of the department and its director? See Belanger, 115 R.I. at 361-62, 346 A.2d at 141 (Paolino, J., concurring in part and dissenting in part) ("It is incumbent upon the courts * * * to render an interpretation of * * * [the terms `conditions of employment' and `policy'] whenever a matter is presented which does not clearly belong in one class or the other. * * * The ultimate outcome of such a categorization * * * is a determination as to whether the matter in issue is arbitrable."). But see Barrington School Committee v. Rhode Island State Labor Relations Board, 120 R.I. 470, 479-80, 388 A.2d 1369, 1375 (1978) (holding that, in the context of interest arbitration, *324 "when * * * the problem involved concerns both a question of management and a term or condition of employment, it is the duty of the committee to negotiate with the teachers involved"). Although the state is statutorily mandated to negotiate concerning hours and other conditions of employment, G.L.1956 §§ 36-11-1(a) and 36-11-7, and indeed was contractually bound to arbitrate grievances regarding such issues with the union, the extent to which the state is obligated to arbitrate regarding its health-care employees' hours of work is not boundless. Rather it is circumscribed by the statutory obligations of the department and of the director to protect the disabled, custodial patients who are entrusted to their care (and indirectly by their obligations to provide for the protection of the public health). Thus, neither the department nor its director is empowered to delegate to arbitrators the department's statutory obligation to take all steps necessary to provide for the health and welfare of these patients. Pawtucket School Committee, 652 A.2d at 972 ("requirements of state law * * * cannot be submitted to arbitration"); see also Belanger, 115 R.I. at 365, 346 A.2d at 142 (Paolino, J., concurring in part and dissenting in part) ("the school committee, by permitting the submission of this matter to arbitration, unlawfully delegated the discretionary authority that has been entrusted to it by statute"). The statutory authority against which this award must be measured reveals that the department and its director are charged with the responsibility of ensuring the well-being of the department's disabled, custodial patients, many of whom are helpless to care for themselves. The department "is charged with the execution of the laws relating to the admission and custody of the mentally disabled." Section 40.1-5-3. "In exercising the power and authority to provide for the care and physical welfare of the inmates, prisoners, patients, and pupils in the several institutions under its control and for the protection of the public health, the department * * * shall take all necessary steps to promote the health of the inmates, prisoners, patients, and pupils * * *." Section 40.1-2-16. Further, the director "shall maintain * * * an appropriate facility for the confinement of persons committed to his or her custody * * * and shall provide for the proper care, treatment, and restraint of all such persons," § 40.1-5.3-1, and "may adopt such rules and regulations governing the management of facilities, both public and private, as he or she may deem necessary to carry out the provisions of this chapter to insure the comfort and promote the welfare of the patients," § 40.1-5-3(7). Manifestly, the sixteen-consecutive-work-hours cap was adopted and implemented by the department pursuant to these statutory enabling provisions. In weighing the arbitrability of the dispute that led to this award against the department's statutory authority, we believe that a decision that requires the state to allow its health-care employees to insist on their being allowed to provide health care for retarded and disabled mental patients in the state's custody for over sixteen consecutive work hours encroaches upon the department's and the director's statutory duties to "provide for the proper care * * * of all such [patients]" and to "adopt such rules and regulations governing the management of facilities * * * to insure the comfort and promote the welfare of the patients." See Rhode Island Brotherhood of Correctional Officers, 643 A.2d at 821 (recognizing that "there may be some limitations on a CBA to supersede state statutes in certain critical areas such as the obligation of the director of corrections to require overtime services under emergent conditions, Vose, supra, or a chief judge to exercise control over a disobedient subordinate, Rhode Island Laborers' District Council v. State, 592 A.2d 144 (R.I.1991)"). Such an award bestows upon the IMH's and the hospital's employees the unilateral right to decide for themselves whether they are competent to care for the state's mental patients for extended periods far in excess of the normal workday.[13] Given their statutory *325 responsibilities to "take all necessary steps to promote the health of the * * * patients" and to "adopt such rules and regulations * * * to insure the comfort and promote the welfare of the patients," the department and its director should not have to arbitrate before they can perform their statutory duty to manage these patients' health care by limiting the consecutive work hours of the department's health-care employees. Nor should the department have to put patients at risk by being forced to allow its disabled patients to be cared for by employees who insist on voluntarily working three consecutive shifts in nonemergency situations. Although the state can point to no particular occasion when an employee who worked a third consecutive shift was involved in a health-care mishap, we do not believe that the state should be obliged to wait for a patient-care calamity to occur before it is allowed to manage proactively. Even though the state admittedly retained its contractual right in the face of this award to "relieve employees from duties because of * * * legitimate reasons," its supervening statutory authority to take all necessary steps to promote these patients' health should not be relegated to the status of a post-hoc damage-control option. In other words, when it comes to its statutory duty of looking after these disabled patients, the state should not have been required to arbitrate whether it should take nine stitches in time to save it from taking one. Finally, we reject the union's past-practices argument. See generally Rhode Island Court Reporters Alliance v. State of Rhode Island, 591 A.2d 376, 378-79 (R.I.1991) (discussing requisites to finding a past practice). Just as "there are limits to the extent that a statutory power and responsibility may be bargained away in a labor contract," Rhode Island Laborers' District Council, 592 A.2d at 146, so too are there limits to the extent to which a past practice can erode the statutory managerial rights of the department and its director. Although the state may have allowed (and perhaps even benefited from) this past practice of letting its health-care employees volunteer for as many consecutive overtime hours as they wished to accumulate, its statutory right and obligation to take steps that will promote the welfare and the comfort of its patients and to provide for the protection of the public's health cannot be sacrificed on the altar of its earlier inaction — especially when it had no statutory duty to act in the past on pain of waiving its right to act in the future with respect to this issue. Salus populi est suprema lex (Regard for the public welfare is the highest law). Conclusion The state's appeal is sustained, the orders of the Superior Court are reversed, and the arbitrator's award is vacated. The papers of this case are remanded to the Superior Court with instructions to enter judgment for the state in accordance with this opinion. WEISBERGER C.J., did not participate. NOTES [1] Now named the Eleanor Slater Rehabilitation Hospital, G.L.1956 § 40.1-3-8. [2] "The state department of mental health, retardation, and hospitals is charged with the execution of the laws relating to the admission and custody of the mentally disabled." General Laws 1956 § 40.1-5-3. Moreover, "[i]n exercising the power and authority to provide for the care and physical welfare of the inmates, prisoners, patients, and pupils in the several institutions under its control and for the protection of the public health, the department of mental health, retardation, and hospitals * * * shall take all necessary steps to promote the health of the inmates, prisoners, patients, and pupils." General Laws 1956 § 40.1-2-16. [3] Overtime work is contractually defined as "the required performance of work in excess of the established work week." [4] "`[G]rievance' means any difference or dispute between the [s]tate and the [u]nion * * * with respect to the interpretation, application, or violation of any of the provisions" of the CBA. [5] The CBA provides that "[i]f a grievance is not settled * * * such grievance shall, at the request of the [u]nion or the [s]tate, be referred to * * * arbitration." Furthermore, "[o]nly grievances arising out of the provisions of th[e] contract, relating to the application or interpretation thereof, may be submitted to arbitration." The following stipulated issues were submitted to the arbitrator: "Are the grievances arbitrable? "If so, did the [s]tate violate the contract in January, 1992 when it limited the number of consecutive shifts which could be worked by employees at the Institute of Mental Health and the General Hospital? If so, what shall be the remedy?" [6] "Except as otherwise expressly provided * * *, all privileges and benefits which employees have hitherto enjoyed shall be maintained and continued by the [s]tate during the term of this agreement." [7] We note that this argument is more properly raised (at least initially) as a defense in the arbitration proceeding rather than as an issue for the court to consider concerning whether arbitration of this dispute is precluded ab initio. See Harvey A. Nathan & Sara McLaurin Green, Challenges to Arbitrability, in 1 Labor and Employment Arbitration § 13.04[6][a], at 13-59 n.57 (Tim Bornstein & Ann Gosline eds., 1996) ("It is debatable whether defenses of this kind render a grievance nonarbitrable or merely control the outcome on the merits. If the grievance is truly not arbitrable, the arbitrator would not hear any evidence on the merits. He or she would not be in a position to determine whether the prior action was sufficiently related to the present case to be controlling. Therefore, it seems more reasonable to conclude that defenses such as res judicata do not affect arbitrability, i.e., the right to be heard, but affect the arbitrator's judgment on the merits."); see also Jay E. Grenig, Stare Decisis, Res Judicata, and Collateral Estoppel, in 1 Labor and Employment Arbitration §§ 15.03, 15.04 (Tim Bornstein & Ann Gosline eds., 1996). [8] The CBA provides, in pertinent part, as follows: "The [u]nion recognizes that except as specifically limited, abridged or relinquished by the terms and provisions of this agreement, all rights to manage, direct or supervise the operations of the [s]tate and the employees are vested solely in the [s]tate. "For example, but not limited thereto, the employer shall have the exclusive rights subject to the provisions of this agreement and consistent with the applicable laws and regulations: A. To direct employees in the performance of the duties of positions; * * * C. To maintain the efficiency of the operations entrusted to it; D. To determine the methods, means and personnel by which such operations are to be conducted * * *." [9] The CBA's language on this issue is as follows: "The [s]tate shall make every reasonable effort to provide and maintain safe working conditions relating to the safety and health of employees." [10] Because of our decision to dispose of the state's appeal on this basis, we do not reach or decide any of the state's other arguments concerning why the confirmation of the award should be reversed. [11] "A reviewing court must determine whether the arbitrator has resolved a grievance by considering the proper sources, such as the contract in effect between the parties." State v. National Association of Government Employees Local No. 79, 544 A.2d 117, 119 (R.I.1988). "`Absent a manifest disregard of a contractual provision or a completely irrational result,'" the courts have no authority to vacate the arbitrator's award. Rhode Island Brotherhood of Correctional Officers v. State, 643 A.2d 817, 820 (R.I.1994). As long as the award "`draws its essence' from the contract and is based upon a `passably plausible' interpretation of the contract, it is within the arbitrator's authority and our review must end." Id. (citing Town of Coventry v. Turco, 574 A.2d 143, 146 (R.I.1990) (Kelleher, J., dissenting) (quoting Jacinto v. Egan, 120 R.I. 907, 912, 391 A.2d 1173, 1176 (1978))). "The statutory authority to vacate an arbitration award where the arbitrators `exceeded their powers' does not authorize a judicial re-examination of the relevant contractual provisions." Jacinto, 120 R.I. at 912, 391 A.2d at 1175. [12] Indeed, "arbitrators `are under no obligation to set out the reasons for their award or the findings of fact or conclusions of law on which that award is premised.'" Warner v. Aetna Casualty and Surety Co., 624 A.2d 304, 305 (R.I.1993); Jacinto, 120 R.I. at 923, 391 A.2d at 1181 (Weisberger, J., dissenting) ("arbitrators have no obligation even to provide reasons for their determinations"). [13] A review of the CBA shows that there are four scheduled shifts: 7 a.m. to 3 p.m., 8 a.m. to 4:30 p.m., 3 p.m. to 12 a.m., and 11 p.m. to 8 a.m. Thus there is the distinct possibility that a nurse who has completed a volunteered third consecutive shift would then be obliged to work his or her next regularly scheduled shift on the next day. Conceivably then, a nurse could go into work on Monday at 7 a.m. to work the scheduled shift, work two additional consecutive shifts on overtime, and then be obligated to work another scheduled shift at 7 a.m. on Tuesday, going home at 3 p.m., having already worked thirty-two hours for the week.

337 F.2d 24 ROCK ISLAND MILLWORK COMPANY and Wholesale Distributing Co.,Appellants,v.HEDGES-GOUGH LUMBER COMPANY, V. R. Gough, Margaret H. Gough,June E. Current, Charles E. Hedges, Charles E. Hedges andThe Merchants National Bank, Executorsof the Estate of HelenL. Hedges, Deceased, and W. D. Willer, Appellees.HEDGES-GOUGH LUMBER COMPANY, Appellant,v.V. R. GOUGH, Margaret H. Gough, June E. Current, Charles E.Hedges, Charles E.Hedges and The Merchants National Bank,Executors of the Estate of Helen L.Hedges, Deceased, and W.D. Willer, Appellees.ROCK ISLAND MILLWORK COMPANY, Wholesale Distributing Companyand Hedges-GoughLumber Company, Appellants,v.V. R. GOUGH, Margaret H. Gough, June E. Current, Charles E.Hedges, Charles E.Hedges and The MerchantsNational Bank, Executors of the Estateof Helen L.Hedges, Deceased,and W. D. Willer, Appellees. Nos. 17352, 17353, 17640. United States Court of Appeals Eighth Circuit. Oct. 14, 1964. John D. Randall, Cedar Rapids, Iowa, made argument for appellants and cross-appellant Hedges-Gough Lumber Co., and filed brief. William R. Crary, Cedar Rapids, Iowa, made argument for appellees V. R. Gough and Margaret H. Gough and filed brief with William O. Gray, Cedar Rapids, Iowa. C. J. Lynch, Cedar Rapids, Iowa, made argument for appellees June E. Current, Charles E. Hedges, Charles E. Hedges, and Merchants Nat. Bank, executors of estate of Helen L. Hedges, deceased, and filed brief with William M. Dallas, Cedar Rapids, Iowa. Before MATTHES, BLACKMUN and RIDGE, Circuit Judges. MATTHES, Circuit Judge. These are appeals from a money judgment in favor of plaintiffs, Rock Island Millwork Company (Rock Island) and Wholesale Distributing Company (Wholesale), against the corporate defendant Hedges-Gough Lumber Company,1 and in favor of the individual defendants on plaintiffs' causes of action and in favor of the individual defendants on the corporate defendant's cross-claim. A chronological recitation of the proceedings in the trial court will be beneficial in understanding the basis for our ultimate conclusion that diversity jurisdiction is lacking and that the judgment must be vacated. 1 Rock Island and Wholesale, Illinois corporations which also have their principal offices in that state, instituted this action in the United States District Court for the Northern District of Iowa. Named as defendants were Hedges-Gough, an Iowa corporation having its principal office in that state, and certain individuals, all citizens of Iowa, who were alleged to be officers and directors of Hedges-Gough. 2 Counts 1 and 2 of the original complaint, in identical language, averred that the defendants were indebted to plaintiff Rock Island in the amount of $12,367.12 (Count 1) and to plaintiff Wholesale in the amount of.$14,834.91 (Count 2) 'on account of goods sold and delivered'. The complaint did not state whether the goods were sold and delivered either to the defendant corporation, the individual defendants, or to both. Upon motions of the individual defendants, the Court directed plaintiffs to allege to whom the goods were sold and delivered. Thereafter, plaintiffs amended their complaint alleging that the goods were sold and delivered either to the individual defendants as partners of Hedges-Gough Lumber Company, a co-partnership, or to Hedges-Gough, a corporation. In both the original complaint and amendments thereto, plaintiffs alleged that the individual defendants had failed to comply with the law in regard to the incorporation of Hedges-Gough; that the net worth of the corporation as shown by corporation papers was 'entirely fictitious', and that as a consequence of such conduct, the individual defendants were personally liable to plaintiffs. 3 The attorney who filed the complaint for plaintiffs, who represented them in all proceedings in the trial court, and who represents them in this court, also appeared for defendant Hedges-Gough in the trial court and represents it in these appeals. This attorney filed an answer on behalf of Hedges-Gough admitting all of the allegations of the complaint which, of course, included the averment that the individual defendants were liable to plaintiffs for the stated amounts. The answer also alleged that by agreement of certain creditors, the corporate defendant was to be given time 'within which to pay off the claims, and that it believes that the court should examine and determine whether such action is premature'. The answer prayed that the 'action be delayed pending the determination of the cross-claim filed herein by this defendant against the individual defendants'. 4 On the day of the filing of its answer to the complaint, the corporate defendant filed a cross-claim against the individual defendants, seeking among other relief a judgment: (1) requiring the individual defendants to make an accounting; (2) requiring defendants Charles E. Hedges and V. R. Gough to pay to Hedges-Gough the sum of $30,000.00 alleged to have been wrongfully paid to them; (3) and that the amount paid by the individual defendants to Hedges-Gough under the court's order be used to pay plaintiffs, and other creditors of Hedges-Gough. Hedges-Gough predicated its claims against the individuals upon the same averments which formed the basis for plaintiffs' cause of action against the individuals, however, additional acts of mismanagement were pleaded in the cross-claim. 5 All of the individual defendants filed motions to dismiss the complaint and the cross-claim for failure to state claims upon which relief could be granted. The trial court filed an opinion on April 11, 1963, demonstrating why the motions to dismiss should be granted and on February 6, 1964, the court's judgment was entered in favor of Rock Island and Wholesale against Hedges-Gough for the amounts sued for; dismissing plaintiffs' complaint against all individual defendants; and dismissing the cross-claim.2 From this judgment plaintiffs and Hedges-Gough have appealed.3 6 Although it is apparent that the trial judge entertained grave doubts as to the court's jurisdiction of the subject matter, the judge proceeded to adjudicate the controversies on the merits.4 7 None of the parties directly raised in this court the question of jurisdiction, but appellees V. R. Gough and Margaret H. Gough suggest in their brief that the plaintiff Illinois corporations controlled Hedges-Gough, the Iowa corporation; that there was no controversy between plaintiffs and Hedges-Gough, and that the individuals were joined as defendants for the purpose of enabling Hedges-Gough to seek an accounting from the individuals by way of a cross-claim. Upon oral argument all attorneys seemingly were aware of a serious jurisdictional question, indeed counsel for plaintiffs and Hedges-Gough, the appealing parties, suggested lack of jurisdiction and that we should consider vacating the judgment and remanding the cause with directions to dismiss. 8 The threshold inquiry in every federal case is whether the court has jurisdiction and we have admonished district judges to be attentive to a satisfaction of jurisdictional requirements in all cases. National Farmers Union Property and Casualty Co. v. Fisher, 8 Cir., 284 F.2d 421, 423 (1960); Texaco Cities Service Pipe Line Co. v. Aetna Casualty & Surety Co., 8 Cir., 283 F.2d 144 (1960); Employers Casualty Co. v. Kline Oldsmobile, Inc., D.Minn., 210 F.Supp. 269, 270 (1962). Lack of jurisdiction of the subject matter of litigation cannot be waived by the parties or ignored by the court. Kern v. Standard Oil Co., 8 Cir., 228 F.2d 699, 701 (1956); United States v. Mississippi Valley Barge Line Co., 8 Cir.,285 F.2d 381, 387 (1960). If jurisdiction is lacking the trial court should, on its own motion, decline to proceed in the case, and if the court tries a case where jurisdiction is lacking the jurisdiction of the appellate court on review is limited to correcting the error of the trial court in entertaining the action. United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263 (1936); Kern v. Standard Oil Company, supra. The appellate court must satisfy itself not only of its own jurisdiction but also of that of the district court, Fry v. Layne-Western Company, 8 Cir., 282 F.2d 97, 99 (1960); Russell v. New Amsterdam Casualty Co., 8 Cir., 303 F.2d 674, 681 (1962). 9 As initially indicated the alleged basis for federal jurisdiction is diversity of citizenship, (Illinois citizens as plaintiffs and Iowa citizens as defendants). However, the designation of parties as plaintiff or defendant in the complaint is not necessarily controlling in determining jurisdiction. The test to be applied was enunciated by the Supreme Court in City of Indianapolis v. Chase National Bank, 314 U.S. 63, 69-70, 62 S.Ct. 15, 17, 86 L.Ed. 47 (1941) as follows: 10 '* * * To sustain diversity jurisdiction there must exist an 'actual', * * * 'substantial' * * * controversy between citizens of different states, all of whom on one side of the controversy are citizens of different states from all parties on the other side. * * * Diversity jurisdiction cannot be conferred upon the federal courts by the parties' own determination of who are plaintiffs and who defendants. It is our duty, as it is that of the lower federal courts, to 'look beyond the pleadings, and arrange the parties according to their sides in the dispute'. * * * Litigation is the pursuit of practical ends, not a game of chess. Whether the necessary 'collision of interests' * * * exists, is therefore not to be determined by mechanical rules. It must be ascertained from the 'principal purpose of the suit', * * * and the 'primary and controlling matter in dispute'. * * * These familiar doctrines governing the alignment of parties for purposes of determining diversity of citizenship have consistently guided the lower federal courts and this Court.' 11 From our examination of the record in light of the foregoing legal principles, it is abundantly clear that the real and only controversy in this case is between the plaintiffs and the corporate defendant on the one hand and the individual defendants on the other. The common objective of plaintiffs and the corporate defendant was to obtain a judgment against the individual defendants for the amounts due plaintiffs; additionally the corporate defendant sought a judgment compelling the individual defendants to make an accounting to it, and to pay the amount found to be due from the individuals. This conclusion finds support in these circumstances: (1) the attempt by plaintiffs to allege a cause of action against the individual defendants and to recover a judgment against them in the amount sued for; (2) the representation of plaintiffs and the corporate defendant by the same attorney; (3) the admission by the corporate defendant of the allegations of the complaint directed against the individuals; (4) the attempt by the corporate defendant, through its cross-claim, to cause a judgment to be rendered in favor of plaintiffs and against the individual defendants. 12 In summary, since the record convincingly demonstrates the existence of a community of interest between plaintiffs and the corporate defendant, the trial court should have realigned the parties by designating Hedges-Gough as a party-plaintiff. This realignment destroys diversity of citizenship and federal jurisdiction. 13 Accordingly, the judgment is vacated and the causes are remanded to the district court with directions to dismiss the action for lack of jurisdiction. 1 Hedges-Gough Lumber Company is hereinafter referred to as Hedges-Gough or corporate defendant 2 Although judgment was not entered following the filing of the opinion, plaintiffs and corporate defendant nevertheless appealed to this court. On November 19, 1963, when appeals were set for hearing, we noticed sua sponte lack of jurisdiction because of no appealable judgment. Thereafter on February 6, the district court entered the judgment which is the subject of these appeals 3 Three separate notices of appeal were filed by the same attorney: one on behalf of Hedges-Gough, one on behalf of plaintiffs and one on behalf of plaintiffs and Hedges-Gough. This accounts for the three appeals as shown in the caption 4 In the concluding paragraph of the District Court's opinion the court stated: 'By thus arriving at its decision, it is not necessary for the court to rule on the questions of collusive joinder under Title 28 U.S.C.A. 1359, realignment of parties and what is an indispensable party. * * *' After the opinion was filed, the attorney who represented plaintiffs and the corporate defendant sought leave to further amend the plaintiffs' complaint and the cross-claim. In the hearing on the application for leave to amend, the court in addressing the attorney stated: 'You may have a good cause of action between the (defendant) corporation and the stock holders but * * * I have very serious doubts whether it belongs in Federal Court. * * * but in any event, it would appear that the interest of the defendant corporation' and plaintiffs 'were identical; that they should have been realigned as parties-plaintiff which destroys diversity of citizenship and dismisses the case in any event.'

997 So.2d 1139 (2008) Laura RUIMY, Appellant/Cross-Appellee, v. Flor N. BEAL, et al., Appellees/Cross-Appellants. No. 3D07-533. District Court of Appeal of Florida, Third District. November 26, 2008. Rehearing and Rehearing En Banc Denied February 3, 2009. *1140 Grover & Weinstein, Marvin Weinstein, Joel S. Perwin, and Richard B. Rosenthal, Miami, for appellant/cross-appellee. Luks, Santaniello, Perez, Petrillo & Gold, James P. Waczewski, Tallahassee; Dearman & Gerson, and Mark Dearman, Plantation, for appellees/cross-appellants. Before GERSTEN, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge. PER CURIAM. Affirmed. See Murphy v. Intl. Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000) (stating that new trial is warranted where argument of counsel is determined to be improper, harmful, incurable, and damaging to trial fairness); McCain v. Fla. Power Corp., 593 So.2d 500 (Fla.1992) (holding that whether and to what extent defendant's conduct foreseeably and substantially caused injury is an issue to be determined by the jury based on the specific facts of the case). RAMIREZ, J., (concurring). This is an appeal of an order granting a new trial to the defendants/appellees after a jury awarded damages to the plaintiff, Laura Ruimy, of approximately $778,000. The jury found that the driver and the owner were each 50% at fault. The trial court overturned the verdict and granted a new trial for the stated reason that the cumulative effect of improper comments by plaintiff's counsel during closing argument denied the defendants a fair trial. Although I believe that the comments fell far short of the high threshold required to overturn a jury's verdict, I concur with the majority in affirming because the standard of review is abuse of discretion and, in view of the decision of the majority of this court, I cannot state that the trial judge was unreasonable. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) ("If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness."). I. Ruimy, an 18-year-old student, was injured when struck by an automobile as she lawfully crossed a Miami Beach crosswalk. The vehicle was driven by defendant Alex Beal, and was owned by Alex's sister, co-defendant Flor Beal. Until the morning of trial, the sibling defendants used the same attorney, Mr. Daniel Santaniello. Their joint defense evidently did not present an ethical problem until the morning of trial. Alex's liability for the accident was never contested. He had driven into the crosswalk against the light, then fled the accident scene before the police arrived, leaving Ruimy lying semi-conscious in the street with, among other injuries, a fractured pelvis and spinal vertebrae, and multiple leg and foot fractures—an incident for which Alex was later criminally convicted. But on the morning of trial, Mr. Santaniello announced that there was a conflict of interest between the siblings, so he was withdrawing as counsel for Alex, and remaining as counsel only for Flor. Alex's new counsel, Mr. Mark Dearman, announced his appearance and formally admitted Alex's liability. Mr. Santaniello then advised the court that Flor would contest her own liability and contend that Alex had taken the car without permission. Ruimy's counsel claimed to be surprised. The joint answer filed in this case had denied each and every allegation contained in plaintiff's complaint, then listed eighteen (18) affirmative defenses, the first of which *1141 was that United Automobile Insurance Company had timely tendered its insurance policy limits. During the two and a half years that the case was pending, Mr. Santaniello represented both defendants and never intimated that brother Alex had stolen his sister's car. The new tactic raised a number of questions: (1) If the car was taken without Flor's permission, why was the car never reported stolen? (2) Why would Flor's insurance carrier tender the policy limits? (3) Why wait from December 28, 2003 (the date of the accident) until November 27, 2006, to assert for the first time that Alex had stolen the car and separate counsel was necessary? Even on the eve of trial, defense counsel was less than candid, telling the court that he "felt uncomfortable trying the case where she would have an indemnity claim back against [her brother] some day." Counsel then went on to explain: "This isn't a liability case. Assuming we will admit liability, we'll ask Counsel not to get into too many details on liability ... We fell asleep at the wheel, apparently." At trial, the testimony of both Alex and Flor matched. They both claimed that Alex took the car without Flor's permission. In fact, Mr. Santaniello predicted it before jury selection: "There is an issue on consent. They both say he didn't have consent to take the vehicle ..." Ruimy's counsel attempted to counter with the obvious response—that the entire defense had been contrived in an attempt to avoid paying whatever verdict the jury awarded. It is undisputed that brother Alex was uninsured, usually unemployed, and probably judgment-proof. Understandably, plaintiff's counsel sought to challenge the defendants' credibility and show the jury that their testimony was motivated by an attempt to avoid satisfying any potential judgment. During trial, both Flor and Alex asserted that Alex took the car without Flor's consent while Flor was out of town on a business trip. Alex testified that he lived with his parents; that on previous occasions Flor had left the keys to her vehicle on a hook by the front doorway of their parents' home; and that he had previously driven her car. He admitted that when he had previously driven her car (just like this time), he had done so by taking the car keys off the hook. He acknowledged that the location of the keys was "readily available for anyone in your house to use to operate the car." He also admitted driving it without any family members in the car. Alex maintained that, until after this accident, he had never informed Flor that he had driven her car. He testified that Flor told him not to drive her car "anywhere up to 20 times" or "possibly 50 times." Alex volunteered that he was effectively judgment-proof: Q: Did your sister ever tell you a[sic] she was that you might take her car? A: That she was afraid I might take her car? Q: Yeah. A: No. I asked permission and she said no and she told me it was because if anything happened to her car I wasn't financially capable of reimbursing her in any way. Moments later, he voluntarily brought up his own lack of insurance: Q: Did [Flor] tell you you should be a more responsible driver? A: I can't remember her saying those exact words but everyone in my family was pretty much, you know, giving me a hard time. I wouldn't say a hard time but yeah, words, working me over about how I should be more *1142 careful and more responsible in the future. Q: Do you drive your father's car? A: Now? Q: Well, then. A: Then, I don't believe so. Not until he put me on his insurance. While maintaining that she did not consent to Alex's use of her car, Flor admitted that she did not recall what, if anything, she told her parents about the use of her car before she left on this business trip. She testified that she was concerned because Alex had been in multiple accidents using other people's vehicles. She admitted that before leaving on her trip and leaving her car keys on the hook at the front door, she did not tell Alex not to use her car, believing "it was just clear he was not supposed to" because she had told him that in the past. She further admitted that her prohibition was not absolute, but that Alex was authorized to use the car if an emergency arose. Their father confirmed this. When asked about previous occasions on which Alex had used her car, Flor denied any specific knowledge, but she also said it was "plausible" that her parents allowed him to drive it. She also testified: Q: I want to know why he took your car even though he should have assumed or known from the past that he should not have taken your car. A: Have you ever dealt with a teenager? Q: He's not a teenager now. A: He's a 26-year-old teenager; okay? Flor also admitted that, given Alex's immaturity, it was certainly possible that he would take the keys off the hook even if instructed not to do so: Q: So you could not foresee your brother taking the keys from the hook that was available while you were on vacation? A: I used to take my parents' keys off the hook, off the nightstand, out of the kitchen, you know, take my parents' cars when I was a kid, too, without them knowing. So there is a possibility, sure, there is a possibility in any household that somebody is going to take the keys and do something they are not supposed to do. I suspected that he would know. Just as Alex had volunteered the fact that he was essentially without assets, Flor said the same thing about him—again without any prompting from Ruimy's counsel: Q: Is it your testimony that you specifically prohibited your brother from using your car while you were on vacation, out of town, using a car that you were not using, using a car that was in your — that you placed in the driveway of your home? A: Should he have had the permission to drive my car and had gotten in an accident and unfortunately did happen in this occasion when he didn't even have my permission, I was afraid it would cause a family crisis situation because he would not be able to cover the cost of fixing my car. We would then be in altercations. II. A trial court's decision to grant a new trial is reviewed for abuse of discretion. See, e.g., Leyva v. Samess, 732 So.2d 1118, 1121 (Fla. 4th DCA 1999). As the Florida Supreme Court stated in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980), "[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable *1143 and there can be no finding of an abuse of discretion." Given that two of my colleagues find the trial court's decision as reasonable, I cannot in good conscience then conclude that the ruling was unreasonable. I must iterate, however, that I cannot agree that the trial court should have granted a new trial. Its discretion was necessarily circumscribed by the applicable standard: A jury verdict should not be overturned unless the trial court is convinced that the comments were improper, inflammatory and "so egregious as to interfere with the essential justice of the result." Rohrback v. Dauer, 528 So.2d 1362, 1363 (Fla. 3d DCA 1988). Furthermore, "attorneys are allowed wide latitude in presenting an argument to a jury," Brumage v. Plummer, 502 So.2d 966, 968 (Fla. 3d DCA 1987), and "even improper argument will not require a new trial if the remarks are not so egregious as to interfere with the essential justice of the result." Rohrback, 528 So.2d at 1363. The improper comments must be "so inflammatory and prejudicial that they deny the opposing party a fair trial." Maksad v. Kaskel, 832 So.2d 788, 793 (Fla. 4th DCA 2002). See Bakery Associates., Ltd. v. Rigaud, 906 So.2d 366 (Fla. 3d DCA 2005). Thus, while the trial court properly sustained a number of objections during the trial and plaintiff's closing argument, I do not believe the comments or questions were sufficiently egregious. During closing, Ruimy's counsel attempted to deal with the family's testimony. Like the testimony of any witness, he was entitled to challenge the credibility of the testimony of the Beal family. immediately asked the jury to consider the credibility of the witnesses. Standard Jury Instruction 2.2 on the believability of witnesses allows consideration of "any interest the witness may have in the outcome of the case." Counsel could legitimately highlight Flor's economic interest in blaming her brother, who was in effect judgment-proof. Counsel framed the issue of consent as whether Flor was not a careful person in making sure her car keys were not so openly displayed so that her brother could take the car. He stated: So I plead with you to find responsibility for the owner of the car for facilitating, you know, her brother. Her brother did not have a car. She left her car there. Now, the keys were placed on the hook. All this business about, well, you know, I am not trying to escape liability, but I did not give him permission. I don't have a recorder or a fly on the wall to know what really happened with the family. But the only people who were financially responsible say it's all my brother's fault. You should only bring a judgment against him and, therefore, I did not give him permission. There was no objection to this argument. A few pages later, Ruimy's counsel stated: So, therefore, on the jury form, I respectfully request that the first question about whether there was consent, either expressed or implied, you answer, yes, because of the way this family conducted themselves. They knew he didn't have a car. They knew his background. They knew that he didn't have a car on his own and she was away and those keys were provided right on the hook. Now, as I said before, can someone come in court and just say anything they want? No. The other side has no recorder, no way of knowing actually what took place around the table when they decided what they might say in court. Defendants' objection to improper argument caused the court to have a sidebar, at which the following transpired: *1144 THE COURT: Why is the argument improper? MR. SANTINELLO: Because he is in a nice way saying that we are liars ... The trial court sustained the objection but denied the mistrial. Defendants did not request a curative instruction. Ruimy's counsel continued arguing that a judgment against Alex would only be a paper judgment: You will recall that I read that part to you where she [Flor] says that, well, that time, I don't recall saying don't drive my car when she went to New York. Now, as I said I don't sit around — Laura [the Plaintiff] does not sit around the table and is not part of their family. That's their family. They don't talk and give anybody each other's car, whatever. But they do know where the financial responsibility lies. That is with — At this point, the trial court overruled Mr. Santinello's objection, and the plaintiff's counsel continued his sentence: "Where the financial responsibility is. The responsible person, the person who can respond financially, is the car owner. So they want you to absolve the car owner, so that Laura [the Plaintiff] can never recover any money." Defense counsel objected as improper argument and the court had another sidebar, where Mr. Santinello explained: "He can't argue that they should find against my client because she will not recover against the driver." This actually misquotes plaintiff's argument. Nevertheless, the court sustained the objection and denied the motion for mistrial. Again, no curative instruction was requested. Shortly after describing that Florida law "wants to make sure the innocent person in an accident is made whole," Ruimy's counsel added, "[s]o the law in Florida is that we care more for the victim and not the wrongdoer." The court sustained defendants' objection and instructed the jury to disregard the comment. Ruimy counsel then explained that "they have admitted that he [Alex] was wrong in striking her [the Plaintiff] down. That's what I mean by a wrongdoer." During his own closing argument, Flor's counsel argued that his client left her car keys with her disabled mother and it was well known that no one drives your car. "It's a family policy, undisputed, and he wants to hang her for that." Counsel then recounted how Alex had admitted he had previously taken Flor's car: "Now, if they are all such liars and connivers, why would he admit that?" On appeal, to justify the new trial, appellees argue that there were two constant themes that were highly improper and inflammatory during plaintiff's closing argument: 1) that a verdict against Alex Beal alone would be a "paper judgment" because he had no assets; and 2) that defendants and their father "conspired to lie in Court, and to defraud the Court and the jury, by coordinating their testimony in order to ensure that a judgment is entered only against Alex Beal — thus precluding Plaintiff from collecting on her judgment." I see nothing wrong with the first line of argument—plaintiff is entitled to challenge the credibility of witnesses and the standard jury instructions allow consideration of "any interest the witness may have in the outcome of the case." Flor had an economic interest in avoiding a money judgment entered against her while blaming her judgment-proof brother. As to the second argument, I agree that there was no evidence that the Beal family sat "around the table when they decided what they might say in court," but I cannot find this sufficient to warrant a new trial.

545 F.2d 1320 94 L.R.R.M. (BNA) 2020, 79 Lab.Cas. P 11,754 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.MONROE TUBE COMPANY, INC., Respondent. No. 89, Docket 76-4104. United States Court of Appeals, Second Circuit. Argued Sept. 27, 1976.Decided Nov. 29, 1976. Mary K. Schuette, Atty., John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Robert Sewell, Atty., N.L.R.B., Washington, D.C., for petitioner. Frederick L. Sullivan, Richard D. Hayes, Sullivan & Hayes, Springfield, Mass., for respondent. 1 Before WATERMAN and VAN GRAAFEILAND, Circuit Judges, and MOTLEY, District Judge.* MOTLEY, District Judge: 2 This is a petition by the National Labor Relations Board ("the Board") pursuant to Section 10(e) of the National Labor Relations Act, as amended,1 ("the Act") for enforcement of an order (1) directing Respondent, Monroe Tube Company, Inc. ("the Company"), to cease and desist from engaging in certain specified activities allegedly violative of Section 8(a)(1)2 of the Act; (2) requiring the posting of appropriate notices; and (3) setting aside a representation election, with a remand to the Regional Director to conduct a new election. 3 After a hearing before an Administrative Law Judge at which both the unfair labor practice charges and election objections were consolidated for trial,3 the Board concluded that Respondent had violated Section 8(a)(1) of the Act "(b)y encouraging and assisting employees to withdraw their union authorization cards and by interrogating employees concerning their union activities and union sentiments".4 The Board rejected, however, those objections to the election based upon allegations that Respondent's president had publicly threatened to close the Company if the Union5 won the election. In this enforcement proceeding, we are called upon to determine whether the Board's findings that Respondent violated Section 8(a)(1) are supported by substantial evidence on the record considered as a whole.6 4 Respondent employs about fifty persons in the manufacture of metal tubing at its one plant in Monroe, New York. Early in August of 1973, the Union began a drive to organize the factory. By the end of the first week, a number of employees had signed union authorization cards. On August 10, Respondent's president, Harold Grout, assembled all employees in the plant lunchroom for a brief prepared speech in which he advised the employees that signing cards would have serious legal consequences. He urged them not to sign until they had heard Respondent's views on union representation. He promised another meeting within a few days at which these views would be presented. 5 Some three or four days after Mr. Grout's speech, "night foreman"7 James Verbert approached Perry Nowak, an employee on his shift, and asked him to sign a written form seeking the withdrawal of his union authorization card. Verbert "made it clear" that he wanted Nowak to sign the card, although Nowak indicated that he wished to draft his own copy. Nowak ultimately did sign but asked Verbert not to turn the card in to the office. He wanted to draft his own letter and turn it in himself. Within the next few days, plant manager John Romer returned the form to Nowak advising that Nowak had neglected to fill in Respondent's name, and that the form would not be effective unless he did so. Nowak reiterated that he wanted to draft his own letter. Despite Romer's repeated requests that he complete the form, Nowak refused to do so, whereupon Romer became "flustered" and left. Nowak never sent his own letter requesting the return of his card. 6 On August 15, the employees were again assembled in the lunchroom. Mr. Grout, again speaking from a prepared text repeated his earlier warning about the consequences of joining a union and reminded the employees that Respondent, rather than the Union, provided wages and fringe benefits. He indicated that if the Union had refused to return authorization cards to employees who wanted them back, that fact should make them realize the sort of organization with which they were dealing. He cautioned the employees that they had the right to be free of any "pressure or harassment" to sign cards against their will. He added that any employees who had been refused the return of their cards should write directly to the Union headquarters in Yonkers for such return. He suggested that the employees keep a copy of any such letter. He offered the use of Respondent's copying equipment for that purpose. 7 On August 16, the Union filed a petition to represent Respondent's employees with the Board. About the same time, Mr. Romer told a group of employees that he would supply them with the Union's address in the event that they decided to send a letter requesting the return of their authorization cards. When employee James Sinsabaugh, who had voluntarily written a withdrawal letter, later asked Mr. Romer for the address, Romer handed him a number of slips of paper bearing the address and told him to give them to other employees who wanted to get their cards back. 8 At approximately the same time, foreman Verbert asked Charles Rosenstock, another worker on the night shift, whether he had signed a union card and whether he was serious when he did so. Rosenstock replied that he had, in fact, signed a card, but that he wasn't really sure whether he was serious in so doing. Verbert made no inquiry as to whether other employees had signed cards, but he asked whether Rosenstock wanted to write for the return of his card. He offered to provide Rosenstock with the Union's address. About a week later, Rosenstock wrote such a letter, gave it to Verbert, and received a copy of it from Respondent after it was mailed to the Union. 9 At the company picnic on August 18, Verbert asked Edward Willard, another employee on his shift, whether he had written to the Union to have his authorization card returned. When Willard responded that he had not, Verbert wrote a letter of withdrawal and asked him to sign it. In view of Verbert's previous inquiries some days earlier as to whether he had signed a card and whether anyone else had signed cards, Willard signed the letter and gave it back to Verbert. The letter was apparently never sent to the Union, however, perhaps in view of the fact that all the employees had been drinking to some extent at the outing.8 10 The Union withdrew its representation petition on September 5 and filed a new petition the following day. Subsequently, an election was scheduled for October 12. On the evening of October 10, President Grout assembled the "night shift"9 employees for a final speech concerning the Union. On the following day, he gave a similar speech to the day shift. In both of those extemporaneous speeches, Mr. Grout reiterated the themes of the speeches he had given in August, emphasizing the disadvantages which he perceived in belonging to a union. In addition, he told the employees that Respondent was not in a good financial condition, that it had difficulty in competing with other companies because of its location and older production equipment, and that he had considered selling the business. 11 The election resulted in the employees' rejection of the Union by a vote of 22 to 15, with seven ballots challenged by the Union, but undeterminative. The Union filed timely objections to the election based on alleged threats made by President Grout and production engineer Frank Hegedus to the effect that Respondent would be closed in the event of a Union victory in the election. (The Board ultimately found after the hearing, however, that there was insufficient evidence in the record to support those allegations. The objections were dismissed.) 12 On October 23, after the time for filing objections to the election had expired,10 the Union filed an unfair labor practice charge. The charge alleged the same speech threats on which the election objections had been based and, in addition, alleged that Respondent had unlawfully solicited the withdrawal of employees' union authorization cards. Complaint issued on these allegations on December 19. The objections and unfair labor practice allegations were consolidated for purposes of a hearing. At the hearing in January of 1974, the complaint was amended to include additional allegations that Respondent had engaged in unlawful interrogation of its employees concerning their union activities. 13 On the basis of the documentary and testimonial evidence adduced at the hearing in January of 1974,11 the Board found Respondent in violation of Section 8(a)(1) of the Act. It ordered Respondent to cease and desist from "(e)ncouraging and assisting employees to withdraw their union authorization cards and interrogating employees concerning their union sentiments or union activities". It further ordered that Respondent cease and desist from "(i)n any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act". Respondent appeals from the Board's unfair labor practice findings, order and remedy, including the direction of another election. The Status of James Verbert 14 Since much of the allegedly unlawful conduct on which the Board predicates its unfair labor practice findings was the activity of Verbert, we first examine the Board's finding that Verbert was a "supervisor" within the meaning of the Act, so as to make his conduct attributable to Respondent. While we agree that this is a close question, we find that the Board's affirmative finding was without sufficient support in the record. 15 Section 2(11) of the Act12 defines a supervisor as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." It is well settled that this section is to be read in the disjunctive, and that "the possession of any one of the listed powers is sufficient to cause the possessor to be classified as a supervisor." N.L.R.B. v. Metropolitan Life Insurance Co., 405 F.2d 1169, 1173 (2d Cir. 1968). 16 In its decision, the Board had to rely on a number of factors to support its conclusion that Verbert was, in fact, a supervisor, rather than a non- supervisory leadman as Respondent argues. There was evidence that Verbert, as "night foreman", was "responsible for eight people" on the night shift and that there was frequently no one of higher authority in the plant during that shift. Verbert was empowered to move employees from job to job when necessary, spent about 50 percent of his time doing the same physical work as the other members of the shift, was salaried and earned 30 percent more than the other employees on his shift and was regarded by the night shift employees as their supervisor. Finally, the record also reflected that Verbert allocated work to the members of the night shift but only in accordance with the directions of Charles Mancuso, the mill foreman during the day shift. 17 As Respondent suggests, other evidence in the record is consistent with a finding that Verbert's position could more accurately be characterized as that of a leadman. He did not attend weekly management meetings. He did not have an office or desk of his own. His instructions for the night shift as to work priorities and scheduling were received from Mr. Mancuso. Any action concerning emergency personnel situations had to be reported to Mr. Mancuso. And, lastly, no one was designated as responsible in the sense of having direct supervisory authority during the evening hours. 18 We feel that the Board could reasonably have found, on the above evidence, that Verbert had authority to transfer members of the shift from job to job, and responsibly to direct them, particularly in view of the fact that, for at least a substantial portion of each of the night shifts, there was no one of greater supervisory authority in the plant. However, we conclude that Verbert was not a supervisor within the meaning of the Act because his exercise of authority was of a strictly routine nature pursuant to Mancuso's directions. National Labor Relations Board v. Cousins Associates, Inc., 283 F.2d 242 (2d Cir. 1960); Precision Fabricators v. N.L.R.B., 204 F.2d 567, 569 (2d Cir. 1953). 19 In so holding, we are cognizant of the fact that "the Board's findings in this area are entitled to special weight since it possesses expertise in 'evaluating actual power distributions which exist within an enterprise' needed for drawing lines between managerial personnel and the rank and file." Amalgamated Local 355 v. N.L.R.B., 481 F.2d 996, 1000 (2d Cir. 1973), quoting N.L.R.B. v. Metropolitan Life Insurance Co., supra, at 1172. Thus, when the Board exercises its "special function of applying the general provisions of the Act to the complexities of industrial life," N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963), and determines that an individual possesses supervisory status, "the Board's determination stands if it has warrant in the record and a reasonable basis in the statute." N.L.R.B. v. Big Ben Department Stores, 396 F.2d 78, 82 (2d Cir. 1968). However, the Act expressly requires that the authority exercised by the employee in question be of a non-routine nature. The Solicitation Charges 20 We are also unable to find substantial evidence on the record as a whole for the Board's finding that Respondent violated Section 8(a)(1) of the Act by the facts enumerated above in which employees were encouraged and assisted in withdrawing their authorization cards. 21 We note preliminarily but critically that Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of rights guaranteed in Section 7 of the Act,13 among which is the right to form, join, or assist labor organizations. Thus the essence of the proscribed conduct is not merely opposition to union activity, but interference or coercion which makes impossible the free exercise of employees' rights. 22 We have been cited no case, nor do we know of any, which holds that it is per se a violation of Section 8(a)(1) for an employer to suggest that it is possible for his employees to withdraw their union authorization cards, or for an employer to make available the address of the Union's headquarters for that purpose, or for the employer to engage in the limited effort observed here to assist employees in the preparation of withdrawal letters. While it is certainly true that an employer's solicitation of withdrawal letters may violate the Act under some circumstances, the propriety of such conduct must be assessed in the light of all the facts in the case, particularly the employer's prior and contemporaneous conduct in dealing with union activities. 23 None of the cases cited by the General Counsel in his brief appear to establish a contrary proposition, and all appear to be distinguishable on their facts. 24 In N.L.R.B. v. Elson Bottling Company, 379 F.2d 223 (6th Cir. 1967), the Board found that the company engaged in a campaign of coercive speeches to its employees, threatening layoffs and curtailment of operations, as well as promising wage increases. The employer prepared two forms a withdrawal form for those employees who had signed union cards and a disclaimer of interest in union representation for those who had not. The employees were called into the company's office one by one, where one of the managerial officials gave them an "opportunity" to sign one of the two statements. In that manner, signatures were obtained from all 23 of the company's employees, and the company then put its promised wage and commission increases into effect and rejected the union's bargaining request. 25 Similarly, the company's solicitation activity in N.L.R.B. v. Deutsch Company, Metal Components Division, 445 F.2d 902 (9th Cir. 1971), cert. den. 405 U.S. 988, 92 S.Ct. 1248, 31 L.Ed.2d 454 (1972), reh. den. 405 U.S. 1076, 92 S.Ct. 1492, 31 L.Ed.2d 210 (1972), was accompanied both by unlawful interrogation and also by invocation of an invalid prohibition against union solicitation. Moreover, the Company sent two mailings to its employees urging them to revoke their union authorization cards, and enclosing post cards addressed to the Board with a prepared statement of revocation. 26 While in N.L.R.B. v. S & H Grossinger's Inc., 372 F.2d 26 (2d Cir. 1967) this court deemed unlawful an employer's suggestion to its employees that they withdraw from the union, when the company also "assisted" the employees in the preparation of a petition to that effect and allowed it to be circulated on company time and property, that activity was part of a larger pattern of hostility to union activity. The Board also found, and this court agreed, that Grossinger's had promised its employees a variety of benefits during the period prior to an election for the selection of a bargaining representative; that the company sought to convince employees that union meetings were held under employer surveillance; and that the employer had engaged in unlawful interrogation of its employees. 27 In Amalgamated Clothing Workers of America v. N.L.R.B., 137 U.S.App.D.C. 330, 424 F.2d 818 (1970), the court held unlawful a speech by the company's president in which he made the "very strong suggestion" that his employees who had signed cards should sign and mail to the union form letters which he provided withdrawing their union authorization cards. However, that activity was in the context of very strongly expressed hostility to union activity, and threats that the employer would retaliate by discontinuing its practice of soliciting marginal contracts to avoid loss of work and by closing the plant. 28 In Edward Fields, Inc. v. N.L.R.B., 325 F.2d 754 (2d Cir. 1963), a vice-president of the company suggested that the employees prepare a petition calling for the return of previously signed union authorization cards and, later, prepared such a petition at the request of one of his employees. The petition was then circulated among all the employees working that day by one of the employees, who indicated that everyone had to sign the petition regardless of whether he previously had signed a union card. Through this effort, the signatures of 24 of the company's 27 employees were obtained. This court held that "the assistance given by (the vice-president) in counseling and preparing the necessary papers for union disaffiliation, together with his authorization of its circulation among the employees might properly be found part of an anti-union campaign and in violation of § 8(a)(1)." 325 F.2d at 760. Significantly, however, that conduct was in the context of unlawful interrogation, attempted surveillance of employee organizational activities, and threats of loss of existing benefits in the event of union recognition. 29 Finally, in N.L.R.B. v. Priced-Less Discount Foods, Inc., 405 F.2d 67 (6th Cir. 1968), the Board found, and the court agreed, that an employer's conduct in soliciting withdrawals of union authorization cards was violative of the Act. In that case, employees were apparently summoned to the manager's office and requested to execute letters withdrawing their designations of the union as their bargaining representative. Over half of the company's employees thus signed letters withdrawing their cards. Additionally, the employer furnished the paper, envelopes, and postage for mailing; prepared a text for the letters; kept copies of the letters, and actually mailed the letters. 30 In examining these cases, we do not mean to suggest, of course, that an employer's conduct in soliciting and facilitating the withdrawal of union authorization cards, without more, may never violate the Act. Indeed, the Priced-Less case found just such a violation. We do suggest, however, that the propriety or impropriety of such conduct must be judged in the light of all the circumstances of the case to ascertain whether it was, in fact, coercive or otherwise in violation of the law. Where the alleged solicitation constitutes the principal illegal activity, unaccompanied by other illegal conduct,14 it must be of such a nature as to indicate a realistic possibility that employee coercion thereby is likely to result. 31 We do not find such circumstances in this case. While President Grout did indicate in his speech of August 15 that he felt the employees should reconsider their decision to sign union authorization cards, he merely indicated that he would provide his employees with the Union's address if they wanted it, and offered the use of Respondent's copying equipment for employees to make copies of their own correspondence. Employees were never put on the spot by being called into the office and asked to sign prepared letters of withdrawal. 32 On the contrary, three of the encounters on which the Board relied in finding employer coercion involved Verbert, a non-supervisory employee, rather than a high company official, in circumstances which were probably highly unlikely to cause the employees to become cowed. Willard signed his letter at a company picnic, when he was not even sure whether he had signed one letter or more on that day, and his letter was never received by the Union. Mr. Rosenstock was questioned only once, and, without any subsequent inquiry or intimidation by his foreman, drafted his own letter of withdrawal approximately a week later. Nowak was asked to sign the form and, ultimately, did so, but without providing Respondent's name on the form to make it effective. We find these circumstances clearly distinguishable from those situations in which an employee was pressured into signing a withdrawal letter by the cumulative effect of unfamiliar surroundings and the presence of high company officials. 33 Moreover, we consider the episodes involving the plant manager, John Romer, to be de minimis. We know of no reason why he should be prohibited from supplying the employees, at their request, with the address of the Union headquarters, even if for the purpose of writing to withdraw their authorization cards. And, while he certainly did approach Mr. Nowak on one occasion requesting that he complete the letter which he had signed, Mr. Nowak was sufficiently uncoerced by the encounter that he refused to do so, and never submitted a letter of his own. 34 We are mindful, of course, that employer conduct may be found violative of Section 8(a)(1) even though, through employee temerity, it does not succeed in deterring the employees in the exercise of their Section 7 rights. However, in the circumstances of this case where only three of almost fifty employees were asked to sign or prepare withdrawal letters, where only one of the resulting letters (prepared by the individual himself) actually arrived at the Union headquarters, where the assistance offered the employees was as minimal as it was here, and where the record is devoid of any other sustainable allegations of either election impropriety or unfair labor practices we find that the record is lacking in substantial evidence from which the Board could have found a violation of Section 8(a)(1). On the facts of this case, the employer conduct complained of is de minimis. The Interrogation Allegations 35 The Board also held that Respondent violated Section 8(a)(1) by coercively interrogating two employees concerning their union activities and union sentiments. We find that the interrogation charges are not supportable under the standards applied in this Circuit. 36 " The rule in this Circuit is that employer interrogation is unlawful if it is coercive in light of all of the surrounding circumstances." Retired Persons Pharmacy v. N.L.R.B., 519 F.2d 486, 492 (2d Cir. 1975). "(I)nterrogation, not itself threatening, is not held to be an unfair labor practice unless it meets certain fairly severe standards." Bourne v. N.L.R.B., 332 F.2d 47, 48 (2d Cir. 1964). While the absence of any one of the "indicia of coercive interrogation" set forth in Bourne does not necessarily exonerate the employer, Retired Persons Pharmacy, supra, we feel that the facts of this case fall so far short of meeting the tests set forth in Bourne, to which we continue to adhere, that the Board's findings cannot be upheld. 37 Bourne suggested that evidence of employer interrogation be judged by five criteria: (1) the background of the employer/union situation; (2) the nature of the information sought; (3) the identity of the questioner; (4) the place and method of interrogation; and (5) the truthfulness of the responses. 38 The entire evidence in the record on this issue is set forth in the margin.15 Whatever may be the rule elsewhere,16 it is clear that this interrogation is not improperly coercive under Bourne, even if we were to assume, arguendo, that Verbert, the questioner, was a supervisor. Although the inquiries were made against the background of an intensive, but legal, anti-union campaign by Respondent, there was no evidence of any prior activity tending to foreclose employees' opportunity to organize. There is little in the course of the inquiry which would indicate that Respondent was seeking to develop information on which to base action against other employees. The questioning was carried out by Verbert, a non-supervisory employee, in an atmosphere which was not shown to be unduly formal or unfamiliar. And, finally, the responses were evidently truthful. 39 Under these circumstances, we have no difficulty in holding that the Board's finding of unlawful interrogation is without substantial support in the record, as that requirement has been interpreted in this Circuit. Even making due allowance for the fact that inquiries which do not appear threatening to federal judges may appear so when directed to vulnerable employees in very different circumstances,17 we find it highly unlikely that the interrogations here in evidence should fall within the prohibition of the Act. 40 Accordingly, we deny enforcement of so much of the Board's order as directed Respondent to cease and desist from the specified practices, and to post notices. 41 As noted earlier, the Board determined, not only that the conduct here complained of constituted an unfair labor practice mandating the cease and desist order and notices, but it also decided that Respondent's activity precluded a fair election on October 12, 1973. Relying on its prior decision in Dawson Metal Products, Inc., 183 N.L.R.B. 191 (1970), the Board held that matters litigated in the consolidated complaint case could serve as the basis for an order setting aside the election in the representation case, even though those matters were not raised by the objections.18 Accordingly, the Board set aside the election, remanding the representation proceeding to the Regional Director to conduct a new election. 42 Respondent now urges that we should set aside this direction of election on a number of grounds, particularly since the conduct on which the cease and desist order was predicated is exactly the same conduct which was judged to preclude a fair election. While Respondent's position is appealing in its invocation of judicial economy and expeditious handling of disputed legal issues, it appears to be against the weight of authority among courts which have considered this question. The judicial consensus appears to be that, in this procedural situation, the election order in the representation case is not a final order19 subject to our review, despite the fact that it was entered in a consolidated proceeding and predicated upon the same actions giving rise to the unfair labor practice allegations. See A.F.L. v. N.L.R.B., 308 U.S. 401, 409, 411, 60 S.Ct. 300, 84 L.Ed. 347 (1940); Bonwit Teller, Inc. v. N.L.R.B., 197 F.2d 640, 642 n. 1 (2d Cir. 1952), cert. den., 345 U.S. 905, 73 S.Ct. 644, 97 L.Ed. 1342 (1953); N.L.R.B. v. Lifetime Door Co., 390 F.2d 272, 274, n. 3 (4th Cir. 1968); Daniel Construction Co. v. N.L.R.B., 341 F.2d 805, 808-810 (4th Cir. 1965), cert. den., 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (1965); Hendrix Manufacturing Co. v. N.L.R.B.,321 F.2d 100, 106 (5th Cir. 1963). 43 The one case which we have been cited in which a Court of Appeals also decided the issues involving the representation case and direction of election, N.L.R.B. v. Reliance Steel Products Company, 322 F.2d 49 (5th Cir. 1963), contains no discussion of the jurisdictional question, and apparently represents a minority view. Moreover, in view of the clear line of decisions governing this specific question under the Act, we consider it inappropriate to assume jurisdiction of the representation case on some other rationale, such as the exercise of our ancillary jurisdiction. We feel constrained to follow the view advanced by the Board and decline to review the election order at this time. * Of the United States District Court for the Southern District of New York, sitting by designation 1 29 U.S.C. §§ 151, et seq 2 29 U.S.C. § 158(a)(1) 3 The case has had a somewhat unusual procedural history before the Board. The decision of the Administrative Law Judge who initially heard the case was issued on May 16, 1974. On December 10, 1974, as a result of its determination that the Administrative Law Judge's decision reflected bias against Respondent, the Board issued an Order directing a hearing de novo before a different Administrative Law Judge. Thereafter, the parties filed various motions with the Board; the General Counsel (with support from the charging party, the Union) joined Respondent in requesting a stay of the order for a hearing de novo. The Board, noting that there was apparent agreement among all parties that a hearing de novo should not be held, vacated its December 10 order and proceeded to make its own review of the record in the case. On September 15, 1975, the Board issued a Proposed Decision, Order, and Direction of Election which made proposed findings of fact and conclusions of law on the basis of its review. On December 1, 1975, after considering Respondent's exceptions and brief, the Board adopted its own Proposed Decision, Order, and Direction of Election 4 The Board's decisions are reported at 220 NLRB No. 48 and 221 NLRB No. 151 5 Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America 6 29 U.S.C. § 160(e) 7 As indicated, infra, the exact nature of Verbert's position and authority was contested by Respondent before the Board 8 Willard even testified that he was uncertain as to whether or not he might have signed more than one such letter that day 9 One shift of eight employees worked from approximately 4:30 P.M. to 1:00 A.M 10 Objections to elections must be filed within five days after the election. NLRB Rules and Regulations, Series 8. Title 29 CFR § 102.69(a) 11 See note 3, supra 12 29 U.S.C. § 152(11) 13 29 U.S.C. § 157 14 See our discussion of the interrogation charges, infra 15 With respect to Verbert's questioning of employee Willard, the following testimony was developed by the General Counsel at the administrative hearing: Q. Do you recall the first time he asked you? A. No, I don't remember when it was. I know, it was before the clambake though. Q. Well, the first time he asked you to get it back, did he tell you how he knew you had signed the card? A. I think I told him I signed it when he asked me. Q. He asked you if you signed one too? A. Yes, I told him anyhow I signed one one of the cards. Q. Did he ask you if anyone else signed? A. Yes. Yes, sir. Q. Who did you tell him? A. I am not the only one. I know others signed. I knew other people signed. General Counsel developed the following testimony regarding Verbert's interrogation of employee Rosenstock: Q. Mr. Rosenstock, after you signed that particular card, did Mr. Verbert ever ask you whether or not you had signed for the Union? A. You are talking about the union card now? Q. Yes. A. He asked me if I had signed a card. Q. When did he ask you that? A. It might have been a week or two after I signed the card. Q. Was this before you sent in the letter to the Union? A. Somewhere around that area. Q. Was it before or not? A. I think he asked me if I signed the card before. Q. You sent in the letter? A. Before I sent in my letter, yes. Q. Did he say anything else? A. Well, he asked me if I was serious when I signed the card and at that time I told him I really don't know. Q. What else did he say? A. That was it. 16 See Johnnie's Poultry Co., 146 NLRB 770 17 See Hays, J., dissenting, in N.L.R.B. v. The Golub Corporation, 388 F.2d 921, 929 (2d Cir. 1967) 18 Member Penello dissented on this point and on the direction of election 19 See 29 U.S.C. §§ 160(e) and (f)

                                                                           In The                                                 Court of Appeals                         Sixth Appellate District of Texas at Texarkana                                                   ______________________________                                                                No. 06-10-00097-CV                                                 ______________________________                                         SANDRIA L. SHELDON, Appellant                                                                   V.              UNKNOWN NURSE/STAFF OF TRINITY MOTHER FRANCES HOSPITAL, TYLER, TEXAS, Appellee                                                                                                                                                   On Appeal from the 241st Judicial District Court                                                              Smith County, Texas                                                    Trial Court No. 2008-0440-B/A/C                                                                                                                                                      Before Morriss, C.J., Carter and Moseley, JJ.                                         Memorandum Opinion by Chief Justice Morriss                                                       MEMORANDUM OPINION               After Sandria L. Sheldon failed in three successive motions to have the trial judge recused from presiding over her health care liability claim, that judge dismissed her claim.  On appeal, Sheldon challenges the three recusal denials and the dismissal.  We affirm the judgment of the trial court because (1) denying Sheldon’s initial motion to recuse was not an abuse of discretion, (2) Sheldon waived the right to complain concerning the subsequent recusal motions, and (3) Sheldon’s failure to timely file an expert report mandates dismissal.             In February 2006, after an arrest for driving while intoxicated (DWI), Sheldon had been escorted to Trinity Mother Frances Hospital (Trinity), so a blood sample could be drawn.  Sheldon alleges that, once there, she informed hospital medical personnel that she had just been injured in a fight and that the officer who escorted her to the hospital had sexually assaulted her on the way to the hospital.  She also alleges that the nurse on duty asked the escorting officer if a rape kit was needed and that he stuttered, “No.”  Sheldon says that she was not treated for her injuries.  As a result, she filed, pro se, a medical negligence claim against Trinity in February 2008.[1]              In July 2008, Sheldon filed her first motion to recuse the trial judge.  That motion was denied.  The trial court did not rule on Sheldon’s two subsequent recusal motions and ultimately dismissed Sheldon’s lawsuit with prejudice because she failed to file an expert report.   (1)        Denying Sheldon’s Initial Motion to Recuse Was Not an Abuse of Discretion               In her initial recusal motion, Sheldon alleged that, because the trial judge was a litigant in Sheldon’s brother’s lawsuit, he had a conflict of interest.[2]  The trial court declined to recuse and referred the matter to the Regional Presiding Judge of the First Administrative Judicial Region.  The regional judge denied the recusal motion, having determined that it failed to meet the requirements of Rule 18a of the Texas Rules of Civil Procedure and was facially insufficient to warrant a hearing.              The denial of a motion to recuse is reviewed for an abuse of discretion.  Tex. R. App. P. 18a(f); Barron v. State Att’y Gen., 108 S.W.3d 379, 382 (Tex. App.—Tyler 2003, no pet.).  We, therefore, must determine whether the trial court acted in an arbitrary or unreasonable manner without reference to any guiding rules or principles.  Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).  We conclude that there was no abuse of discretion in overruling the motion.             A recusal motion must be verified,[3] Tex. R. Civ. P. 18a(a), or made over the unsworn declaration of an inmate.  Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (Vernon 2011).  Because Sheldon was (and is now) an inmate of the Texas corrections system, she was entitled to use an unsworn declaration in lieu of a verification.  But there are still standards her unsworn declaration must have met.             An unsworn declaration must be written and state that it is “subscribed by the person making the declaration as true under penalty of perjury.”  Tex. Civ. Prac. & Rem. Code Ann. § 132.002 (Vernon 2011).  Section 132.003 sets out the form of the declaration, but requires only substantial compliance with the prescribed form, that is, “I . . . declare under penalty of perjury that the foregoing is true and correct.”  Tex. Civ. Prac. & Rem. Code Ann. § 132.003 (Vernon 2011).  The only phrase the Legislature actually requires to be included in such a declaration is “under penalty of perjury.”  Bahm v. State, 219 S.W.3d 391, 394 (Tex. Crim. App. 2007).  Because Sheldon’s initial motion to recuse contains neither a verification nor the phrase “under penalty of perjury,” the motion was defective.  There was no abuse of discretion in denying the motion. (2)        Sheldon Waived the Right to Complain Concerning the Subsequent Recusal Motions               Sheldon generally complains that, “on several occasions since the lawsuit was filed in 2008 the appellant has submitted motions for Judge Skeen to recuse himself and he did not.”  After the initial recusal motion was denied, Sheldon filed two additional recusal motions, neither of which was ruled on by the trial court.[4]             To recuse a judge, a party must follow the procedure prescribed by Rule 18a of the Texas Rules of Civil Procedure.  Carson v. Serrano, 96 S.W.3d 697, 698 (Tex. App.—Texarkana 2003, pet. denied); Wirtz, 898 S.W.2d at 422.  According to Rule 18a, when the motion for recusal is filed, copies must be served on all other parties or their counsel of record, together with a notice that the movant expects the motion to be presented to the judge three days after the filing of such motion unless otherwise ordered by the judge.  Tex. R. Civ. P. 18a(b).  If a party fails to follow this procedure, there is a waiver of the right to complain of a judge’s failure to recuse.  Carson, 96 S.W.3d at 698.  The record contains no evidence that Sheldon gave notice of expectancy of presentment to the judge three days after filing or that the judge was presented with the motion.  Because Sheldon did not follow the procedure prescribed by Rule 18a, she has waived the right to complain about the judge’s failure to recuse pursuant to her second and third recusal motions.[5]  See id. (3)        Sheldon’s Failure to Timely File an Expert Report Mandates Dismissal               Sheldon also complains that the trial court dismissed her lawsuit with prejudice for failure to file an expert report.  We are to review such a dismissal for an abuse of discretion.  Kingwood Specialty Hosp., Ltd. v. Barley, 328 S.W.3d 611, 613 (Tex. App.—Houston [14th Dist.] 2010, no pet.).  When deciding if a trial court abused its discretion, we review de novo all issues of law based on statutory interpretation.  CHCA W. Houston, L.P. v. Priester, 324 S.W.3d 835, 838 (Tex. App.—Houston [14th Dist.] 2010, no pet.).             Health care liability claims are governed by the provisions of Chapter 74 of the Texas Civil Practice and Remedies Code.  A health care liability claim is a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.   Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon 2011) (emphasis added).               Sheldon’s allegation of lack of treatment by “unknown nurse/staff” of Trinity is a health care liability claim against a health care provider.[6]             A health care liability claimant must provide the defendant with an expert report within 120 days after filing the petition.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon 2011). In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.   Id.               In the present case, Sheldon’s health care liability claim is governed by the expert report requirements of Section 74.351 of the Texas Civil Practice and Remedies Code.  Absent an agreement among the parties for an extension of time to serve a report, when a claimant fails to meet the deadline, the trial court must dismiss the case with prejudice: (b)        If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c),[7] enter an order that:                    (1)            awards to the affected physician or health care provider reasonable attorney’s fees and costs of court incurred by the physician or health care provider; and                    (2)            dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.   Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon 2011).               Sheldon candidly admits[8] in her brief to this Court that she did not serve an expert report, alleging that such report was unnecessary because “the evidence of negligence speaks for itself.”  Sheldon’s allegation of res ipsa loquitur was not presented to the trial court, and is therefore waived.  See Tex. R. App. P. 33.1(a) (1).  Even if Sheldon had presented this argument to the trial court, she would nevertheless be required to file an expert report.[9]  An allegation of res ipsa loquitur does not relieve a party of the responsibility to file an expert report under Chapter 74 of the Texas Civil Practice and Remedies Code.  Bogar v. Esparza, 257 S.W.3d 354, 369 (Tex. App.—Austin 2008, no pet.).             Because Sheldon did not timely file an expert report, the trial court had no discretion to refuse to dismiss her action.             We affirm the judgment of the trial court.                                                                                         Josh R. Morriss, III                                                                                     Chief Justice   Date Submitted:          May 17, 2011 Date Decided:             May 18, 2011       [1]Originally appealed to the Twelfth 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 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3. [2]Before the filing of the recusal motions at issue here, Sheldon’s case was transferred from the 114th Judicial District Court of Smith County to the 7th Judicial District Court of Smith County in March 2008, pursuant to a standing order of the presiding judge of the first administrative region.  In June 2008, the case was transferred from the 7th Judicial District Court of Smith County to the 241st Judicial District Court of Smith County on Sheldon’s motion.   [3]Because an unsworn motion to recuse is defective on its face, it is not an abuse of discretion to summarily deny such a motion.  See Pena v. Pena, 986 S.W.2d 696, 701 (Tex. App.—Corpus Christi 1998, pet. denied); Wirtz v. Mass. Mut. Life Ins. Co., 898 S.W.2d 414, 422–23 (Tex. App.—Amarillo 1995, no writ). [4]Sheldon filed a second motion to recuse the trial judge in March 2010, complaining that the trial judge had been the Smith County District Attorney and had, four times, prosecuted Sheldon for DWI.  This second motion was appropriately verified.  In July 2010, Sheldon filed her third motion to recuse the trial judge; this asserted the reasons set forth in the previous motion.  The third motion was unverified. [5]Pro se litigants are not exempt from the Texas Rules of Civil Procedure.  Pena v. McDowell, 201 S.W.3d 665, 667 (Tex. 2006).   [6]A “health care provider” includes “any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care,” including registered nurses and employees of a health care provider acting in the course and scope of their employment.  Tex. Civ. Prac. & Rem. Code Ann. § 74.001(12)(A), (B)(ii) (Vernon 2011). [7]Subsection (c) provides for one thirty-day extension in order to cure a deficiency in a timely filed report.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (Vernon 2011); Thoyakulathu v. Brennan, 192 S.W.3d 849, 853 (Tex. App.—Texarkana 2006, no pet.).   [8]The record contains nothing contradicting Sheldon’s admission.   [9]Sheldon’s original petition was filed February 18, 2008, making the expert report due no later than 120 days thereafter.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0447n.06 Case No. 18-4206 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 22, 2019 WELLS FARGO BANK, N.A., ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN ALLSTATE INSURANCE COMPANY, ) DISTRICT OF OHIO Defendant-Appellant. ) OPINION BEFORE: SUTTON, McKEAGUE, and KETHLEDGE, Circuit Judges. McKEAGUE, Circuit Judge. Wells Fargo Bank owned an insurance policy on an abandoned home that an arsonist set ablaze. Allstate Insurance Company refused to indemnify Wells Fargo for the loss, relying on a policy exclusion for damage caused by “vandalism or malicious mischief” after the property has been vacant for more than 30 days. Wells Fargo sued, arguing that other policy provisions confirm that fire damage is considered distinct from vandalism or malicious mischief. The district court agreed with Wells Fargo and entered summary judgment in its favor. We AFFIRM. I The facts leading to this insurance-coverage dispute and the policy provisions that govern the result are straightforward. Case No. 18-4206, Wells Fargo Bank, N.A. v. Allstate Ins. Co. Our story begins with Antoniano Delsignore, though his role is limited. In September 2010, Delsignore took out a mortgage from Wells Fargo on his home in Poland, Ohio. Delsignore purchased a homeowner’s insurance policy from Allstate, with Wells Fargo listed as the insured mortgagee. Delsignore defaulted in 2013, and Wells Fargo foreclosed. In February 2014, an unknown arsonist set fire to the property. Wells Fargo filed a claim with Allstate for the damage caused by the arson. Allstate denied the claim under a provision in the policy that excludes coverage for damage caused by vandalism or malicious mischief if the loss occurs after the property has been vacant or unoccupied for more than 30 consecutive days. The homeowner’s policy provides coverage in three parts: (1) dwelling protection, (2) other structures protection, and (3) personal property protection. The only one directly at issue here is dwelling protection, specifically a provision excluding coverage for loss “consisting of or caused by”: 6. Vandalism or Malicious Mischief if your dwelling is vacant or unoccupied for more than 30 consecutive days immediately prior to the vandalism or malicious mischief. The terms “vandalism” and “malicious mischief” are not defined, but Allstate determined that arson fell within them and thus denied Wells Fargo’s claim under the exclusion. Looking elsewhere in the policy, the district court concluded otherwise. Mindful that isolated terms in a contract should be interpreted with an eye toward a coherent whole, the district court examined the coverage and exclusions for personal property. Because loss resulting from “fire” was specifically addressed there, even though a similar “vandalism or malicious mischief” provision was present, the district court concluded that arson could fit within the fire provision just as easily as it could within the vandalism or malicious mischief provision. That made it unclear whether damage resulting from arson (a fire, after all) fell under the “vandalism or malicious -2- Case No. 18-4206, Wells Fargo Bank, N.A. v. Allstate Ins. Co. mischief” exclusion for dwelling protection. The district court found further support for Wells Fargo’s position in the policy’s arson-reward provision, which discusses arson in connection with a fire loss, not a vandalism loss. Accordingly, the district court granted summary judgment to Wells Fargo. Allstate appealed, but the appeal was premature, as the district court had yet to address Wells Fargo’s demand for breach-of-contract damages. Because the district court’s grant of summary judgment did not constitute a final judgment under 28 U.S.C. § 1291, we dismissed the appeal for lack of jurisdiction. See Wells Fargo Bank, N.A. v. Allstate Ins. Co., 735 F. App’x 208 (6th Cir. 2018). On remand, the parties jointly stipulated to a damages figure, and the district court again entered judgment in favor of Wells Fargo. Allstate again appeals the district court’s grant of summary judgment. II A. Standard of Review First, some preliminaries. We review the district court’s summary judgment order de novo. Lexicon, Inc. v. Safeco Ins. Co. of Am., 436 F.3d 662, 667 (6th Cir. 2006). Summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment, we must view the evidence in the light most favorable to the non-moving party. Escher v. BWXT Y-12, LLC, 627 F.3d 1020, 1025 (6th Cir. 2010). Whether summary judgment was appropriate here turns on the application of Ohio contract law. Affiliated FM Ins. Co. v. Owens-Corning Fiberglas Corp., 16 F.3d 684, 686 (6th Cir. 1994) (applying state substantive law on exercise of diversity jurisdiction). “An insurance policy is a contract whose interpretation is a matter of law” for judges, not juries, to decide. Sharonville v. -3- Case No. 18-4206, Wells Fargo Bank, N.A. v. Allstate Ins. Co. Am. Emp. Ins. Co., 846 N.E.2d 833, 836 (Ohio 2006). While Ohio courts have not confronted the question whether arson is categorically encompassed by “vandalism or malicious mischief,” Ohio law’s interpretive principles guide us to the answer in this case. “[W]ords and phrases used in an insurance policy must be given their natural and commonly accepted meaning,” Gomolka v. State Auto. Mut. Ins. Co., 436 N.E.2d 1347, 1348 (Ohio 1982), “unless another meaning is clearly apparent from the contents of the policy,” Westfield Ins. Co. v. Galatis, 797 N.E.2d 1256, 1261 (Ohio 2003). Put differently, if words carry some “special meaning manifested in the contractual context,” that understanding trumps the man-on-the-street’s. Gomolka, 436 N.E.2d at 1351. Accordingly, the meaning of a disputed contract term “must be derived . . . from the instrument as a whole, and not from detached or isolated parts thereof.” Id. In the end, if we cannot ascertain the parties’ intended meaning and the disputed term remains “reasonably susceptible of more than one interpretation,” the ambiguity “will be construed liberally in favor of the insured.” Laboy v. Grange Indem. Ins. Co., 41 N.E.3d 1224, 1227 (Ohio 2015). B. Analysis We begin with the words themselves, Sunoco, Inc. (R & M) v. Toledo Edison Co., 953 N.E.2d 285, 293 (Ohio 2011), though they leave us at an unhappy impasse. On the one hand, as Allstate urges, the “usually accepted meanings of the words used” suggest arson should qualify as vandalism.1 Black’s Law Dictionary (11th ed. 2019) defines arson as the “malicious burning of someone else’s dwelling house . . . .” The same source defines vandalism as the “[w]illful or ignorant destruction of public or private property.” Webster’s Third New International Dictionary (1986), meanwhile, defines arson as “the willful and malicious burning of or attempt to burn any building, structure, or property of another.” It defines “vandalism” as the “willful or malicious 1 Allstate does not argue that arson constitutes “malicious mischief,” but rather focuses its argument exclusively on “vandalism.” -4- Case No. 18-4206, Wells Fargo Bank, N.A. v. Allstate Ins. Co. destruction or defacement of things of beauty or of public or private property.” If vandalism is, at bottom, the intentional destruction of property, arson seems like one (particularly pernicious) way to accomplish that objective. On the other hand, when someone intentionally sets fire to the property of another, would anyone—especially those steeped in legal parlance, like the lawyers who drafted this insurance contract—characterize that act as “vandalism”? Probably not. We have a well-established term of art for that: arson. Contrast arson with other, archetypal acts of vandalism. A rebellious youth throwing a brick through a window? A small-time gang spray painting a train car? Some bored teenagers “toilet-papering” their math teacher’s house? “Vandalism” would roll off our tongues. Yet that word would be far from the first to describe the act of burning down a person’s dwelling. Indeed, we think one would describe arson as vandalism about as regularly as one would call murder a battery—which is to say almost never. Though the former act in each instance cannot be completed without the latter, that does not mean one would interchange the terms in everyday speech. This points up the difficulty in deciding this case on the words alone. So we broaden our search for connotative clues. Gomolka, 436 N.E.2d at 1351 (instructing courts to define contract terms by reading the “instrument as a whole”). Like the district court, we find two bits of context crucial. The first is that the policy’s personal property coverage section lists fire loss separately from loss caused by vandalism or malicious mischief. Wells Fargo contends that if the vandalism term did not subsume fire damage in that section of the policy, it cannot do so for the dwelling coverage at issue here. The second contextual feature is the policy’s arson-reward provision, which contains the policy’s lone mention of “arson,” but does so in connection with fire (not vandalism or malicious mischief) loss. The first piece of context dampens Allstate’s plain-meaning argument; the second drowns it out altogether. We consider each in turn. -5- Case No. 18-4206, Wells Fargo Bank, N.A. v. Allstate Ins. Co. Because the meaning of disputed terms must be determined from the contract as a whole, Gomolka, 436 N.E.2d at 1351, identical terms should ordinarily have the same meaning throughout the contract. Here, Wells Fargo notes that the “vandalism or malicious mischief” term appears in both the personal property and dwelling sections of the policy. Yet the personal property section— a “named-peril” section—separately lists fire loss. Wells Fargo argues, and the district court agreed, that the separate treatment of fire and vandalism informs the meaning of the vandalism exclusion for the dwelling protection section of the policy. If “fire” and “vandalism or malicious mischief” are treated as separate phenomena for the purposes of personal property coverage, the argument goes, they ought to be treated separately for the purposes of dwelling protection. Or put more precisely, if “vandalism or malicious mischief” doesn’t encompass all fires in one section of the policy, it cannot capture all fires in another section of the policy. Were it otherwise, the policy’s separate listing of fire and vandalism loss would be superfluous. Affiliated FM Ins. Co., 16 F.3d at 686 (“In construing a contract, a court . . . must give meaning to every paragraph, clause, phrase and word, omitting nothing as meaningless, or surplusage.”). But that not all fires are vandalism is an obvious point. The more essential takeaway from the policy’s separate listing of fire and vandalism is that it presents two potential landing spots for arson, teeing up the question of which is the more natural fit. That brings us to the second, and we think decisive, bit of context: the policy’s arson- reward provision. It contains the policy’s sole reference to arson, and it provides that Allstate will pay “for information leading to an arson conviction in connection with a fire loss to property covered under Section I of this policy.” If Allstate were correct that arson should be read as a subset of “vandalism or malicious mischief”—and not “fire” loss—it is odd that the only mention of arson in the policy is in connection with a fire loss, and not a vandalism loss. Sunoco, 953 -6- Case No. 18-4206, Wells Fargo Bank, N.A. v. Allstate Ins. Co. N.E.2d at 293 (“Under the doctrine of noscitur a sociis, the meaning of an unclear word may be derived from the meaning of accompanying words.”). If the policy meant what Allstate says it does—that arson is vandalism—we might expect the arson-reward provision to read “in connection with a vandalism or malicious mischief loss to property” or avoid categorizing the loss at all. But it does not; instead, the words around the policy’s lone reference to arson indicate that arson is at least sometimes, if not always, considered a fire loss. Accord Johnson v. State Farm Fire & Cas. Co., No. 278267, 2008 WL 4724322, at *4 (Mich. Ct. App. Oct. 28, 2008). Allstate’s response fails to rekindle its argument. It asserts that the arson-reward provision “has no bearing on whether arson is to be considered vandalism” since it is “not found in either” the personal property or dwelling sections of the policy. True enough, but the provision by its terms applies to all property covered under the policy. And in any event, there is no rule that we cannot look to policy terms in one section of an insurance policy to inform the meaning of a term in another section of the policy; just the opposite is true. Gomolka, 436 N.E.2d at 1351 (courts must interpret contract terms in light of “the instrument as a whole”). Allstate also argues that the arson-reward provision is irrelevant “due to the fact that there is no coverage for such losses pursuant to the vandalism and malicious mischief exclusion.” But this merely assumes the conclusion. Again, the interpretive question we are trying to answer is whether arson is a vandalism or fire loss under the policy; the fact that the policy’s only mention of arson comes in the context of a “fire loss” suggests the latter. Finally, Allstate contends that the arson-reward provision is “not definitional.” We agree, to an extent. This provision is not a categorical indication that the policy considers arson to be a fire, rather than vandalism, loss. But it is at least a clue suggesting that interpretation and thus contributes to the policy’s ambiguity on this question. And ambiguity, remember, is all Wells Fargo must show to prevail in this case. -7- Case No. 18-4206, Wells Fargo Bank, N.A. v. Allstate Ins. Co. One last point. Allstate spends a good deal of its brief discussing the vacancy condition in the vandalism or malicious mischief provision—the 30-day rule that demarcates when vandalism loss ceases to be covered. Allstate may be right that the impetus for the vacancy condition is “common sense.” We do not doubt that abandoned buildings are far more susceptible to vandalism than occupied ones. Nor do we question the wisdom of insurers disclaiming responsibility for vandalism to such buildings. We even grant Allstate’s argument that if there is any damage to an abandoned building an insurer would be worried about, arson’s destructive potential puts it at the top of the list. But Allstate misses the point. Its argument explains the rationale behind the vacancy condition, but it does not help us determine whether arson is considered a fire loss or a vandalism loss under the policy. And at any rate, the fact that arson carries the most destructive potential of any purported act of vandalism only makes it more confounding that the policy does not more explicitly account for it. After all, Allstate has proven it knows how to do so. McPherson v. Allstate Indem. Co., No. 3:11CV638-WHA, 2012 WL 1448049, at *3 (M.D. Ala. Apr. 26, 2012) (involving policy excluding coverage for “vandalism, or loss caused by fire resulting from vandalism”); Bethel v. Allstate Indem. Co., No. 11-13664, 2012 WL 1060112, at *2 (E.D. Mich. Mar. 29, 2012) (same). Without such clear language, and in light of other indications in the policy that arson could be considered a fire (not vandalism) loss, we cannot say that the policy unambiguously permits Allstate to deny coverage for arson under the vandalism exclusion. We are made more certain of this conclusion given Ohio’s rule of thumb that “an exclusion in an insurance policy [should] be interpreted as applying only to that which is clearly intended to be excluded.” Sharonville, 846 N.E.2d at 836 (citation and quotations omitted). Instead, the furthest we can go—and what we hold today—is that the policy is ambiguous with respect to whether this particular arson is a -8- Case No. 18-4206, Wells Fargo Bank, N.A. v. Allstate Ins. Co. covered or excluded loss. This is cold comfort to Allstate, as we must resolve the ambiguity in favor of the insured, Wells Fargo. See Laboy, 41 N.E.3d at 1227 (noting that words “reasonably susceptible of more than one interpretation will be construed liberally in favor of the insured”). III The district court’s grant of summary judgment to Wells Fargo is affirmed. -9- 

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. ARIZONA COURT OF APPEALS DIVISION ONE NATHANIEL CHANDLER, II, Plaintiff/Appellant, v. RANCHO SANTA FE APARTMENTS, Defendant/Appellee. No. 1 CA-CV 14-0097 FILED 2-12-2015 Appeal from the Superior Court in Maricopa County No. CV2013-051757 The Honorable Thomas L. LeClaire, Judge AFFIRMED COUNSEL Nathaniel Chandler, II, Glendale Plaintiff/Appellant Dodge & Vega, PLC, Mesa By Angel “Bacho” Vega, Ryan M. Scott Counsel for Defendant/Appellee  CHANDLER v. RANCHO Decision of the Court MEMORANDUM DECISION Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined. P O R T L E Y, Judge: ¶1 Nathaniel Chandler, II (“Chandler”), appeals the dismissal of his complaint against Rancho Santa Fe Apartments (“Rancho”) for failing to state a claim upon which relief may be granted. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Chandler was employed by Rancho. After he was fired for refusing to take a drug test with an observer and given seventy-two hours to vacate his apartment, he filed a wrongful discharge lawsuit against Rancho in May 2013. ¶3 Rancho filed a motion to dismiss the amended complaint.1 After oral argument, the trial court dismissed Chandler’s amended complaint with prejudice for failing to state a claim upon which relief could be granted pursuant to Arizona Rule of Civil Procedure (“Rule”) 12(b)(6). ¶4 Chandler timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101.2 1 Chandler filed an amended complaint with attachments on May 24, 2013. The Rules of Civil Procedure allow him to file one amended complaint “as a matter of course.” Ariz. R. Civ. P. 15(a)(1). After Rancho filed its motion to dismiss, Chandler filed another amended complaint in July 2013. He, however, did not ask or get leave of the court to again amend his complaint, nor did he get written consent of Rancho to amend the May amended complaint pursuant to Rule 15(a)(1)(B). Consequently, we only review the amended complaint of May 2013 that was served on Rancho. 2 We cite to the current version of the statute unless otherwise noted. 2  CHANDLER v. RANCHO Decision of the Court DISCUSSION ¶5 Chandler’s opening brief does not comply with Arizona Rule of Civil Appellate Procedure 13(a).3 The brief does not state the proper standard of review and does not contain any relevant legal argument or citation to authority. See ARCAP 13(a)(6) (stating that the opening brief shall contain argument with “citations to the authorities, statutes and parts of the record relied on” and identify “the proper standard of review on appeal”). Chandler’s failure to comply with the rules limits our ability to evaluate his arguments and address his claims. See, e.g., In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 299, ¶ 28, 18 P.3d 85, 93 (App. 2000) (refusing to consider bald assertions offered without elaboration or citation to legal authority); Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 93, ¶ 50, 977 P.2d 807, 815 (App. 1998) (rejecting assertions made without supporting argument or citation to authority). ¶6 Although Chandler is not a lawyer, he is held to the same standards as a lawyer licensed to practice law in Arizona because he is acting as his own lawyer. See, e.g., Old Pueblo Plastic Surgery, P.C. v. Fields, 146 Ariz. 178, 179, 704 P.2d 819, 820 (App. 1985). Even though we could dismiss this appeal, we prefer to decide cases on the merits and will attempt to discern and address the substance of his argument. See Clemens v. Clark, 101 Ariz. 413, 414, 420 P.2d 284, 285 (1966). ¶7 We review de novo a superior court’s dismissal of a complaint. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012).4 In reviewing Chandler’s amended complaint to determine if it states a claim for relief that can be granted, we will assume the truth of all well-pled factual allegations and all reasonable inferences that can be determined from those facts. Cullen v. Auto–Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008). We will uphold the dismissal only if 3 Chandler’s opening brief, for example, argues that certain statements were made during the oral argument. Because he did not provide a copy of the transcript of the argument as part of the record, we cannot consider what may or may not have been said during the argument in resolving this appeal. 4 Although Rancho asserts that our review is for an abuse of discretion pursuant to Dressler v. Morrison, 212 Ariz. 279, 280, ¶ 2, 130 P.3d 978, 979 (2006), in Coleman, our supreme court re-examined Dressler and clarified that the standard of review of a Rule 12(b) dismissal is de novo. 230 Ariz. at 355-56, ¶¶ 7-8, 284 P.3d at 866-67. 3  CHANDLER v. RANCHO Decision of the Court Chandler is not entitled to relief under any interpretation of the facts in his amended complaint. See Coleman, 230 Ariz. at 355, ¶ 7, 284 P.3d at 866. ¶8 Chandler claims that he was wrongfully discharged on May 8, 2012. Although the amended complaint does not specifically cite to any 5 statute, we will review whether the amended complaint alleged a claim under the Arizona Employment Protection Act (“AEPA”), A.R.S. §§ 23-1501 to -1502. See Logan v. Forever Living Products Int'l, Inc., 203 Ariz. 193 n. 3, ¶ 7, 52 P.3d 760, 762 n. 3 (2002) (citations omitted). ¶9 In Arizona, the AEPA provides that employment relationships are presumptively at-will; meaning that “[t]he employment relationship is severable at the pleasure of either the employee or the employer unless both the employee and the employer have signed a written contract to the contrary. . . .” A.R.S. § 23–1501(A)(2). An at-will employee can challenge his termination if he alleges, and can demonstrate, one of the following three theories of liability: (1) there was a written contract (signed by both the employer and employee, or expressly included in an employment handbook) stating the employment relationship was for a 5 On appeal, Chandler also lists the following claims: Defendants Drug Testing Policy The right to request an Observed Drug Test Defendants Credibility Reporting False Information to (DES) Right to work State law Employment Contract Retaliatory Discharge General Employee Benefits Wages and Fringe Benefits Invasion of Privacy Whistleblowers Act Fraud Breach of Employee Contract Emotional Distress Many of the claims were raised in the July 2013 amended complaint. We will not address those claims because Chandler did not raise any of them in his complaint or May 2013 amended complaint and the trial court only addressed the wrongful discharge claim. See Nat'l Broker Assocs., Inc. v. Marlyn Nutraceuticals, Inc., 211 Ariz. 210, 216, 119 P.3d 477, 483 (App. 2005) (“We will not address issues raised for the first time on appeal.”). 4  CHANDLER v. RANCHO Decision of the Court specified period of time or otherwise restricted the right of either party to terminate the employment relationship, and the termination was a breach of that contract; (2) the termination was in violation of an Arizona statute; or (3) the termination was in retaliation for the refusal to violate the Arizona Constitution or an Arizona statute. A.R.S. § 23–1501(A)(3). ¶10 Here, and assuming the truth of Chandler’s factual allegations in his May amended complaint, the amended complaint failed to state a claim as a matter of law because it did not allege any facts which would have entitled Chandler to relief under the AEPA. Chandler did not allege that his termination: (1) was in breach of a written contract or employment handbook provision that specified the length of employment; (2) violated an Arizona statute; (3) was the result of his refusal to violate the Arizona Constitution or any Arizona statute; or (4) violated his right as a public employee to continued employment under either the United States or Arizona Constitutions. Rather, the amended complaint with its attachments reveal that Chandler worked as an at-will employee for Rancho; he signed Rancho’s drug and alcohol policy forms consenting to random drug testing and acknowledging that failing to test would result in immediate termination and eviction from the apartment provided as a term of his employment; he admits that he refused to take a random drug test as required under Rancho’s drug and alcohol policy and his refusal amounts to a positive test; and Rancho, pursuant to its policy, terminated his employment and gave him notice that he was being evicted from his apartment.6 ¶11 Although the amended complaint states that Rancho’s random drug testing policy was “bogus” and not applied to all of its employees (especially to the manager’s son, who had allegedly been arrested and sent to prison on a drug offense), the testing policy was a condition of employment and Chandler’s refusal to test according to the policy made him subject to termination. See Weller v. Ariz. Dep’t of Econ. Sec., 176 Ariz. 220, 223, 860 P.2d 487, 490 (App. 1993). And “an employer 6 The May amended complaint also alleges that Chandler was injured on the job in September 2011 and he either did not get information about Rancho’s insurance or did not qualify for AHCCCS, but also alleges that his worker’s compensation claim was in the process of being settled. The amended complaint also alleges that Rancho battled him over unemployment benefits, but that he was able to demonstrate that he was an employee and began receiving unemployment benefits. 5  CHANDLER v. RANCHO Decision of the Court who terminates an at-will employee for failing a drug test ordinarily incurs no civil liability.” Id. ¶12 Because Chandler did not allege any facts that would allow him to pursue any theory of liability against Rancho under the AEPA for wrongful discharge, the trial court correctly concluded that Chandler’s amended complaint failed to state a claim upon which relief can be granted and dismissed it. Ariz. R. Civ. P. 12(b)(6). CONCLUSION ¶13 For the foregoing reasons, we affirm. :ama 6 

453 F.3d 1137 In re Iouri MIKHEL,United States of America, Petitioner,v.United States District Court for the Central District of California, Respondent,Iouri Mikhel; Jurlius Kadamovas; Petro Krylov; Natalya Solovyeva, Real Parties in Interest. No. 06-73376. United States Court of Appeals, Ninth Circuit. July 7, 2006. Andrea L. Russi, Assistant United States Attorney, Los Angeles, CA, for petitioner United States. Dale Michael Rubin, San Marino, CA, and Richard M. Callahan, Jr., Pasadena, CA, for real party in interest Iouri Mikhel. Richard P. Lasting, Santa Monica, CA, and Sonia E. Chahin, La Canada, CA, for real party in interest Jurlius Kadamovas. George W. Buehler, Los Angeles, CA, and David R. Evans, Pasadena, CA, for real party in interest Petro Krylov. Terry J. Amdur, Pasadena, CA, and Michael M. Crain, Santa Monica, CA, for real party in interest Natalya Solovyevae. Petition for Writ of Mandamus to the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CR-02-00220-DT. Before MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, and BARRY G. SILVERMAN, Circuit Judges. OPINION AND ORDER PER CURIAM. OPINION 1 The United States petitions for a writ a mandamus ordering the district court to permit certain crime victims to observe in its entirety the murder trial in which they will testify, pursuant to the Crime Victims' Rights Act ("CVRA"), 18 U.S.C. § 3771. For the reasons explained below, we grant the United States' petition in part. 2 Defendants are charged, in pertinent part, with kidnaping for ransom and then murdering five people who lived in the Los Angeles area. On May 16, 2006, the United States filed an unopposed motion in limine to permit the family members of the murder victims—including those who were to testify—to witness the defendants' trial in its entirety. The district court denied the motion and held that 3 During the guilt or penalty phase of the trial any victim or relative of victim may observe the trial. Now, if that person is going to testify in the guilt phase of the trial, that witness will be excluded until called as a witness. After testifying, that witness may remain. During the penalty phase, the same procedure will be followed. 4 The court explained that its ruling served to prevent collusive witness testimony and to ensure proper courtroom decorum. The United States petitioned this court for a writ of mandamus.1 5 In recognition of the substantial deference afforded trial courts in these matters, our rules have traditionally provided that non-party witnesses cannot listen to the trial testimony of other witnesses. FED. R. EVID. 615. Rule 615, however, recognizes an exception for "a person authorized by statute to be present." Id. And, it turns out, Congress created just such an exception for crime victims when it enacted the CVRA and gave crime victims "[t]he right not to be excluded from any ... public court proceeding." 18 U.S.C. § 3771(a)(3).2 A crime victim, however, does not have an absolute right to witness a trial at the expense of the defendant's rights. A district court may exclude a victim-witness from the courtroom if the court finds by "clear and convincing evidence. . . that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding." Id. That said, even where a victim-witness may be properly excluded pursuant to § 3771(a)(3), "the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of the victim from the criminal proceeding." 18 U.S.C. § 3771(b). 6 In this case, the district court excluded the victim-witnesses without determining whether their testimony would be "materially altered" were they allowed to witness the entire trial. Nor does it appear that the district court considered whether there were "reasonable alternatives" that would enable the victim-witness to attend the trial pursuant to § 3771(b). 7 While the district court's summary exclusion of the victim-witnesses may have been proper under Rule 615 prior to the enactment of the CVRA, see generally United States v. West, 607 F.2d 300 (9th Cir.1979), the CVRA abrogated Rule 615, at least with respect to crime victims. A mere possibility that a victim-witness may alter his or her testimony as a result of hearing others testify is therefore insufficient to justify excluding him or her from trial.3 Rather, a district court must find by clear and convincing evidence that it is highly likely, not merely possible, that the victim-witness will alter his or her testimony. See United States v. Johnson, 362 F.Supp.2d 1043, 1056 (N.D.Iowa 2006) (permitting victim-witnesses to testify when "each of these witnesses appears likely to testify during the `merits phase' only as to discrete factual events surrounding the disappearance of the murder victims and to identify certain clothing and other items recovered during various searches, which are not matters susceptible to `material alteration' from hearing the testimony of other witnesses").4 8 Thus, we grant the United States' petition in part and instruct the district court to consider whether clear and convincing evidence proves that the victim-witnesses' testimony will be "materially altered" if they are allowed to attend the trial in its entirety. We decline to order the district court to allow the courtroom presence of the victim-witnesses, or to provide any other specific instructions. Rather, we simply remand the issue for reconsideration by the district court in light of this opinion and the requirements of CVRA. We do not reach the merits of any other issue. 9 PETITION GRANTED IN PART; REMANDED. Notes: 1 Although the United States is clearly not the "victim" in this case, it is proper that the government bring this petition because § 3771 provides that "the attorney for the Government may assert the rights described in subsection (a)." 18 U.S.C. § 3771(d)(1) 2 The definition of a "victim" under the CVRA is not limited to the person against whom a crime was actually perpetrated. Rather, the term "victim" includes any "person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia." 18 U.S.C. § 3771(e). When the victim is deceased, "the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim's rights."Id. Thus, the family members of the murder victims in this case are themselves victims for purposes of § 3771. 3 Because there is always apossibility that one witness will alter his testimony based on the testimony of another, were this the standard, a district court could without exception exclude crime victims, and Congress's intent to abrogate Rule 615 with respect to crime victims would be rendered meaningless. 4 The government argues that the testimony of the victim-witnesses it intends to call will be analogous to the testimony given by the victim-witnesses inJohnson. Because the district court did not consider the victim-witnesses' intended testimony and there is no evidence of the contents of that testimony in the record before us, we express no opinion as to the merits of the government's argument.

NUMBER 13-19-00008-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN THE INTEREST OF C.D.L.R., C.D.L.R., E.M., CHILDREN On appeal from the County Court at Law No. 5 of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Chief Justice Contreras The trial court terminated appellant Father’s parental rights to his daughter E.M.1 By two issues, Father argues that: (1) the evidence is legally and factually insufficient to support termination under both § 161.001(b)(1)(E) and § 161.001(b)(1)(Q) of the Texas Family Code, and (2) the evidence is insufficient to support a finding that termination was in the best interest of the child. Because we conclude the evidence was legally insufficient 1To protect the identity of the child, we refer to those involved in the case by aliases, as necessary. See TEX. R. APP. P. 9.8(b). under both § 161.001(b)(1)(E) and § 161.001(b)(1)(Q), we affirm in part, reverse in part, and remand for further proceedings. I. BACKGROUND On September 16, 2016, appellee the Department of Family and Protective Services (the Department) filed an amended petition to terminate the parental rights of Mother and the respective fathers of C.D.L.R., C.D.L.R., and E.M. Mother, however, passed away before trial began. After a bench trial on October 3, 2018, the trial court terminated the parental rights of the fathers of all three children. Father of E.M. appeals. E.M. was born in 2016 and was two years old at the time of trial; Father was twenty-eight years old and has been incarcerated since before E.M.’s birth. Before any witnesses were called, the trial court admitted into evidence multiple exhibits, including: (1) Father’s 2008 judgment of conviction for injury to a child; (2) a 2008 motion to revoke Father’s community supervision for injury to a child, alleging Father committed a new offense of burglary of a habitation and tested positive for marijuana in December 2007 and January 2008; (2) two 2016 judgments adjudicating guilt for two offenses for burglary of a habitation; (3) a July 2015 motion to revoke Father’s community supervision for the burglary offenses, alleging Father smoked synthetic marijuana “several times” while at a transitional treatment center in April 20152; (5) a July 2016 motion to revoke Father’s community supervision for the burglary offenses, alleging Father committed the offense of “possession of a substance” and tested positive for marijuana and benzodiazepines in May 20163; (6) an assault victim’s statement made by 2 The April 2015 motion to revoke also alleged Father, while at the transitional treatment center, refused to take his mental health medication for two weeks, tested positive for synthetic marijuana, smoked a cigarette in violation of the center’s rules, and was unsuccessfully discharged from the program. 3 The July 2016 motion to revoke also alleged Father admitted to his supervising officer that he had smoked marijuana in May 2016, that Father had failed to report in March and June of 2016, and that Father 2 Mother in June 2016, before E.M. was born, where she accused Father of assaulting her by pushing her multiple times, causing swelling of Mother’s right arm and pain in her neck; and (7) an incident/investigation report and supplemental notes concerning Mother’s allegation of assault against Father. In the incident report regarding the assault allegation by Mother against Father, a detective wrote: [Mother] stated that they argued in her car and [Father] pushed her. [Mother] stated she got out of the car and then [Father] tried pushing her back in the vehicle and she wound up getting in the driver[’]s seat trying to leave [Father]. [Mother] stated that [Father] then reached in the vehicle and tried pushing her to get in. [Mother] stated her head hit the window. [Mother] stated she was able to drive away without [Father] and called the police using another person [sic] phone. [Mother] stated she had no injury but the assault caused her pain. [Mother] did not want to conduct a video interview but she did fill out an assault victim’s statement form. [Mother] also stated [Father] would not try to kill her and she did not want to partake in the lethality assessment survey. [Father] was not on scene and not contacted at the time of this report. .... I located the written assault victim[‘]s statement. [Mother] wrote that [Father] assaulted her. She marked that he hit her and pushed her, she wrote she was assaulted on her “left arm and right side of my head.” She marked that it was painful and did causes [sic] bleeding, bruises or swelling. She described the injury as “swelling on her right arm and my neck is in pain.” She wrote she was assaulted with “his hands.” She wrote, “he kept pushing me while I was in [the] passenger seat, then as I got in the driver seat he was grabbing and pushing me. My head kept hitting the passenger seat.” Rey Rangel, an investigator with the Department, was the first witness called at trial. Rangel testified regarding the circumstances that led to the Department’s intervention into Mother and the three children. According to Rangel, the Department was informed that Mother was using illicit drugs. Rangel believed that Mother’s drug addiction made it inappropriate for her to care for the children, and the children were taken had failed to pay court costs and fees. The exhibits also included a June 2016 motion to revoke Father’s probation, making the same allegations, as in the July 2016 motion to revoke. 3 into conservatorship by the Department. According to Rangel, Father was not available at the time of removal because he was and still is incarcerated. Rangel testified that, at the time of trial, the children were currently placed with the maternal grandparents, and he recommended they remain there. Yliana Carlisle, another investigator with the Department, testified she had been in charge of the case for two months at the time of trial. Carlisle stated that E.M. could not be placed with Father because he was incarcerated. Carlisle further stated that Father’s projected release date was in 2020, but that his sentence could last until 2026. Carlisle explained that: she had made two home visits to the maternal grandparents’ home; she believed the grandparents are wonderful caregivers to the kids; the kids are happy, close, and bonded with the grandparents; she had no concerns about the children’s placement with their maternal grandparents; and she believed it would be in the best interest of the children to remain with the grandparents.4 According to Carlisle, Grandmother speaks with Father’s sister regularly and with Father sometimes by phone and the family “is getting along well.” Carlisle testified there was no indication that Father was the cause of the removal; instead, he is a “non-offending parent.” Carlisle testified there was nothing in the exhibits admitted that indicated the injury suffered by the fourteen-year-old victim of Father’s offense for injury to a child was serious. Father testified he was seventeen years old at the time of his offense for injury to a child and that he was convicted for punching a fourteen-year-old boy in the face. Father stated: “Just to be completely honest, sir, it was just—to me, I was just fighting with another teenager. I was a teenager. I made the mistake of getting into a fight with another 4Carlisle did not testify whether or not it was in E.M.’s best interest for Father’s right to be terminated. 4 teenager.” The Department asked Father about his two convictions for burglary of a habitation, and Father responded: Well, at the time of those offenses, sir, I was 18 years old. And, you know, if you look at them, I was 18. They happened in 2008. I haven’t gotten no new felonies since then. I was just young and I could say I was on drugs back then, but in today’s times, I won’t let that affect my relationship with my daughter.[5] Father was incarcerated in 2016, prior to E.M.’s birth, after his community supervision for the two burglary offenses was revoked. Father explained he spends his time reading, working out, and staying out of trouble. According to Father, he has taken peer education courses, was participating in Bible study through mail correspondence, had requested parenting courses through mail correspondence, and was on the wait list for a computer trade course. Father explained that E.M.’s birth changed his outlook on life and that Mother had taken E.M. to see Father a few times while he was incarcerated, including for E.M.’s first birthday. Father testified the maternal grandparents were “wonderful people” and that he was “very thankful for them taking responsibility of my little girl.” Father stated that Grandmother sends him photos of E.M., that he looks at her pictures all the time, and that he writes Grandmother at least once a month to check up on E.M.’s wellbeing. Father stated he wanted to be a part of E.M.’s life and he asked the trial court not to terminate his parental rights. Grandmother testified she met Father approximately six months before Mother became pregnant with E.M. She testified Father previously worked a night job cleaning. Grandmother thought that Father had smoked marijuana with Mother in the past, but that 5 No other testimony was elicited from Father regarding Father’s past drug use. 5 she was unaware of any other drug use by Father, and she did not believe Father to be a violent man. The Department emphasized Father’s conviction for injury to a child: [Department]: I’m going to ask this Honorable Court to terminate the parental rights of [Father]. One, because he’s serving a lengthy period of incarceration; and, two, because he injured a child. At 17, he punched a child. 14. In the face. That doesn’t sound like much, but he was indicted for it . . . . What do you think of that? [Grandmother]: My personal belief is he was still very young. He was a kid, too. I’m not real familiar with street fights, but, I mean, I don’t hold it against him because I think he was a child at the time, too. Grandmother testified she would be okay with E.M. being around Father after he is released: If he shows me he’s a good person and he’s not doing anything wrong[, then] I welcome him to be the father to her that she probably should have. I mean, I don’t want to take her out of our home, but I would love and welcome him to be the father. According to Grandmother, she would not let Father visit E.M. unless he is sober and clean from drugs. Grandmother testified she loved all the children dearly, wanted them to be together, and that they seem very happy. Grandmother stated she was happy to have the children, and she confirmed Father wrote her a letter once a month and frequently asked about E.M.’s overall wellbeing. Grandmother believed Father loves E.M. She testified she and her husband would be willing to care for E.M. regardless of whether E.M. is adoptable or whether they were given permanent managing conservatorship. Grandmother testified she would be willing to care for E.M. on behalf of Father and that she understood that, even if Father’s parental rights were not terminated, then Father would still have to prove it is in E.M.’s best interest before he would have any visitation rights to her. Grandmother believed that Father’s participation in parenting classes 6 through mail correspondence showed that Father was looking to be the best parent he could be for E.M. During closing arguments, the Department stated: [Father’s] parental rights should also be terminated under 161.001(b)(1)(E). (E) because the child was left in an environment of endangerment. Absolutely. The mother is deceased. Serious drug issues. Serious problems with him, too, that make it difficult for me to even suggest that there’s enough time for him to qualify as a parent. He does not have any trades. At the very most, he is an unskilled maintenance—building maintenance worker, at the very most.[6] He’s 28 years old. I wish him well, but he's not an adequate parent. You should terminate his parental rights immediately. And not wait. The law in Texas is clear. Childhood does not wait for the parent to become adequate. Have you ever seen what a 14- year-old child looks like when you punch him in the face? I can tell you what happens. I don’t have to. You know what happens. E.M.’s attorney ad litem recommended that the trial court not terminate Father’s parental rights, appoint grandparents as the sole managing conservators, and appoint Father as a possessory conservator “if and when he can get back into the child’s life.” The trial court found there were grounds to terminate Father’s parental rights under § 161.001(b)(1)(E) and § 161.001(b)(1)(Q) and that termination was in the best interest of E.M. This appeal followed. II. DISCUSSION By his first issue, Father argues the evidence is legally and factually insufficient to support termination under either § 161.001(b)(1)(E) or § 161.001(b)(1)(Q) of the Texas Family Code. A. Applicable Law and Standard of Review 6We note that a trial court “may not make a finding under [§ 161.001(b)] and order termination of the parent-child relationship based on evidence that the parent . . . is economically disadvantaged . . . .” TEX. FAM. CODE ANN. § 161.001(c)(2). 7  Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child’s right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.— Corpus Christi–Edinburg 2010, no pet.); see Stantosky v. Kramer, 455 U.S. 745, 753 (1982). “Termination of parental rights, the total and irrevocable dissolution of the parent- child relationship, constitutes the ‘death penalty’ of civil cases.” In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). Accordingly, termination proceedings must be strictly scrutinized. Id. at 112. In such cases, due process requires application of the “clear and convincing” standard of proof. Id. (citing Stantosky, 455 U.S. at 769; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). This intermediate standard falls between the preponderance of the evidence standard of civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re L.J.N., 329 S.W.3d at 671. “‘Clear and convincing evidence’ means a ‘measure of degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” In re N.G., No. 18-0508, __ S.W.3d__, __, 2019 WL 2147263, at *3 (Tex. May 17, 2019) (per curiam) (quoting TEX. FAM. CODE ANN. § 101.007); see In re K.M.L., 443 S.W.3d at 112–13 (“In cases requiring clear and convincing evidence, even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true.”). The trial court may order the termination of the parent-child relationship if the court finds by clear and convincing evidence that: (1) the parent committed an act or omission described in family code subsection 161.001(b)(1) and (2) termination is in the best 8 interest of the child. TEX. FAM. CODE ANN. § 161.001(b); In re N.G., __ S.W.3d at __, 2019 WL 2147263, at *1. “To affirm a termination judgment on appeal, a court need uphold only one termination ground—in addition to upholding a challenged best interest finding— even if the trial court based the termination on more than one ground.” In re N.G., __ S.W.3d at __, 2019 WL 2147263, at *1; see TEX. FAM. CODE ANN. § 161.001(b). However, we must always review any sufficiency challenge on appeal to a termination under subsection (E). See In re N.G., __ S.W.3d at __, 2019 WL 2147263, at *3 (“When a parent has presented the issue on appeal, an appellate court that denies review of a section 161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent’s only chance for review of a finding that will be binding as to parental rights to other children.”). In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient. In re J.F.C., 96 S.W.3d 256, 266–67 (Tex. 2002) (emphasis in original) (footnotes and quotation marks omitted). 9 B. Termination Under § 161.001(b)(1)(E) Subsection 161.001(b)(1)(E) allows for termination of parental rights if clear and convincing evidence supports a conclusion that the parent “engaged in conduct . . . which endangers the physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). “Endanger” means “to expose to loss or injury [or] to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The term means “more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment,” but “it is not necessary that the conduct be directed at the child or that the child actually suffers injury.” Id.; see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). “Indeed, the law does not require that the child be a victim of abusive conduct before the Department can involuntarily terminate a parent’s right to the child.” In re C.J.F., 134 S.W.3d 343, 352 (Tex. App.—Amarillo 2003, pet. denied) (citing Dallas Cty. Child Prot. Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.—Dallas 1992, no pet.)). The parent’s conduct both before and after the child is born is relevant. In re R.F., 115 S.W.3d 804, 810 (Tex. App.—Dallas 2003, no pet.); In re D.M., 58 S.W.3d at 812 (“It is inconsequential that the parental conduct considered in a termination proceeding occurred before the child’s birth.”); see In re J.O.A., 283 S.W.3d at 345. The relevant inquiry is whether evidence exists that a parental course of conduct endangered the child’s physical or emotional well-being. Walker, 312 S.W.3d at 616–17. “[E]vidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of . . . irresponsible choices.” In re N.J.H., No. 01-18-00564-CV, __ S.W.3d __, __, 2018 WL 6617360, at *6 (Tex. App.— Houston [1st Dist.] Dec. 18, 2018, pet. denied) (quoting In re J.O.A., 283 S.W.3d at 346); see also In re T.E.G., No. 01-14-00051-CV, 2014 WL 1878919, at *7 (Tex. App.— 10 Houston [1st Dist.] May 8, 2014, no pet.) (mem. op.) (“Nor was the trial court required to conclude that P.M. had adequately addressed her drug abuse issues in light of a single negative drug test.”). “However, ‘the relationship of the parent and child, as well as efforts to improve or enhance parenting skills, are relevant in determining whether a parent’s conduct results in ‘endangerment’ under section 161.001(1)(E), even where the parent is incarcerated.’” In re S.A.P., 459 S.W.3d at 145 (quoting In re D.T., 34 S.W.3d 625, 640 (Tex. App.—Fort Worth 2000, pet. denied)). Also, “Texas case law makes clear that in a termination suit, ‘acts done in the distant past, without showing a present or future danger to a child, cannot be sufficient to terminate parental rights.” In re R.R.F., 846 S.W.2d 65, 69 (Tex. App.—Corpus Christi–Edinburg 1992, writ denied), overruled in part on other grounds by In re D.S.P., 210 S.W.3d 776, 780–81 (Tex. App.—Corpus Christi–Edinburg 2006, no pet.) (citing Wetzel v. Wetzel, 715 S.W.2d 387, 391 (Tex. App.—Dallas 1986, no writ); Carter v. Dallas Cty. Child Welfare Unit, 532 S.W.2d 140, 142 (Tex. App.—Dallas 1975, no writ); see Hendricks v. Curry, 401 S.W.2d 796, 800 (Tex. 1966) (stating that termination of parental rights should not be based solely on conditions that existed in the distant past but no longer exist); see also In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.— Houston [14th Dist.] 2005, no pet.) (placing “particular significance” on crimes committed after child’s birth because parent committed them knowing they would result in incarceration, leaving the child without his or her support). 1. Criminal Activity “[I]ncarceration alone will not support termination, [but] evidence of criminal conduct, convictions, and imprisonment may support a finding of endangerment under subsection (E).” In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see Boyd, 727 S.W.2d at 533; In re S.A.P., 459 S.W.3d 134, 145 (Tex. 11 App.—El Paso 2015, no pet.). In considering the acts and omissions of a parent leading to the parent’s incarceration, we consider the expected length of imprisonment and whether it can be inferred from the criminal conduct that the parent has endangered the safety of the child. In re F.M.E.A.F., No. 14-18-00865-CV, __ S.W.3d __, __, 2019 WL 1291314, at *10 (Tex. App.—Houston [14th Dist.] Mar. 21, 2019, no pet. h.); see In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “Termination of parental rights should not become an additional punishment for imprisonment for any crime.” In re F.M.E.A.F., __ S.W.3d at __, 2019 WL 1291314, at *10; In re C.T.E., 95 S.W.3d at 466; see also In re E.N.C., 384 S.W.3d 796, 805 (Tex. 2012) (rejecting proposition that any offense committed by a parent that could lead to imprisonment or confinement would establish endangerment to children). However, routinely subjecting a child to the probability that the child will be left alone because his parent is in jail endangers the child’s physical and emotional well-being. In re J.J.L., __ S.W.3d at __, 2019 WL 20008004, at *8; In re S.M., 389 S.W.3d 483, 492 (Tex. App.— El Paso 2012, no pet.). 2. Drug Abuse “[A] parent’s use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct.” In re J.O.A., 283 S.W.3d at 345. “A parent’s continuing substance abuse can qualify as a voluntary, deliberate, and conscious course of conduct endangering the child’s well being.” In re J.J.L., __ S.W.3d at __, 2019 WL 2000804, at *7; In re J.O.A., 283 S.W.3d at 345. Illegal drug use may support termination under § 161.001(b)(1)(E), even if it transpires outside the child’s presence, because “it exposes the child to the possibility that the parent may be impaired or imprisoned.” See In re J.O.A., 283 S.W.3d at 345; In re N.J.H., __ S.W.3d at __, 2018 WL 6617360, at *5; 12 Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.— Houston [1st Dist.] 2009, pet. denied). Furthermore, a parent’s decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, may support a finding that the parent engaged in conduct that endangered the child’s physical or emotional well-being. In re J.J.L., __ S.W.3d at __, 2019 WL 2000804, at *7; In re N.J.H., __ S.W.3d at __, 2018 WL 6617360, at *5; In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.) (“[P]arent’s engaging in illegal drug activity after agreeing not to do so in a service plan for reunification with her children is sufficient to establish clear and convincing proof of voluntary, deliberate, and conscious conduct that endangered the well-being of her children”). “The fact finder may give ‘great weight’ to the ‘significant factor’ of drug-related conduct.” In re J.J.L., __ S.W.3d at __, 2019 WL 2000804, at *8 (quoting L.G.R., 498 S.W.3d at 204). 3. Knowledge of Other Parent’s Drug Use “One parent’s drug-related endangerment of the child may be imputed to the other parent.” In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018, no pet.). However, the father must have had knowledge of the mother’s drug use for his inaction to constitute endangerment. Id.; see TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (requiring knowledge that others are engaging in endangering conduct). 4. Domestic Violence and Propensity for Violence “Domestic violence, want of self-control[,] and propensity for violence may be considered as evidence of endangerment.” In re C.E.K., 214 S.W.3d 492, 496–97 (Tex. App.—Dallas 2006, no pet.) (citing In re C.F.J., 134 S.W.3d 343, 351 (Tex. App.— Amarillo 2003, no pet.)); see In re N.J.H., __ S.W.3d at __, 2018 WL 6617360, at *6 (“Abusive and violent criminal conduct by a parent can also produce an environment that 13 endangers the child’s well-being, and evidence that the person has engaged in such conduct in the past permits an inference that the person will continue violent behavior in the future.”). Sometimes, if a parent abuses the other parent or children, that conduct can support a finding of endangerment even against a child who was not born at the time of the conduct. See In re J.F.C., 96 S.W.3d 256, 270–72 (Tex. 2002); see, e.g., In re S.B., 207 S.W.3d 877, 885 (Tex. App.—Fort Worth 2006, no pet.) (affirming termination under subsection (E) when father murdered mother while the children were present); In re S.K.S., 648 S.W.2d 402, 404 (Tex. App.—San Antonio 1983, no writ) (affirming termination based on father’s murder conviction for the murder of the mother); Allred v. Harris Cty. Child Welfare Unit, 615 S.W.2d 803, 806 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (concluding evidence supported termination based on endangerment when father beat the mother upon learning she was pregnant, threatened to cause her to miscarry by pushing her down the stairs, and engaged in criminal conduct resulting in the revocation of his parole). 5. Legal Sufficiency “When presented with legal and factual sufficiency challenges, the reviewing court first reviews the legal sufficiency of the evidence.” In re D.T., 34 S.W.3d at 630. We begin with the evidence of criminal conduct by Father. As to Father’s 2008 conviction for injury to a child, it occurred when Father was seventeen years old and punched a fourteen-year-old boy in the face. This conviction occurred approximately eight years prior to trial, and it cannot be inferred that Father endangered the safety of E.M. from a fight between two teenagers eight years before the termination proceeding. See In re F.M.E.A.F., __ S.W.3d at __, 2019 WL 1291314, at *11; In re C.T.E., 95 S.W.3d 14 at 466–67; In re R.R.F., 846 S.W.2d at 68–69 (concluding that allegations of the father’s misconduct towards his children five years prior was too remote to support termination where there was no proof that this conduct created a present or future threat to the children); Wetzel, 715 S.W.2d at 391 (“We hold . . . that misconduct towards a child in the distant past, standing alone, is insufficient to support the termination of parental rights.”). The same can be said of Father’s convictions for burglary, which occurred approximately seven years prior to trial.7 See In re F.M.E.A.F., No. 14-18-00865-CV, __ S.W.3d at __, 2019 WL 1291314, at *11 (concluding that mother’s “theft, trespass, and resisting arrest convictions are not the type from which it can be inferred that she endangered [daughter’s] physical safety”); In re C.T.E., 95 S.W.3d at 466–67 67 (concluding that evidence was insufficient to prove termination was in the child’s best interest when the father’s criminal conduct of theft “was not the type from which it can be inferred that he has endangered the safety of his children”); In re R.R.F., 846 S.W.2d at 68–69; Wetzel, 715 S.W.2d at 391. We do note that the last motion to revoke Father’s community supervision alleged that he committed a new offense for “possession of a substance” in 2016; however, there is nothing in the record supporting the allegation of this offense or that it resulted in a conviction. There is also no evidence of any misconduct by Father since his incarceration. See In re J.F.C., 96 S.W.3d at 266 (“Disregarding undisputed facts that do not support the finding could skew the [legal sufficiency] analysis of whether there is clear and convincing evidence.”); cf. In re S.F., 32 S.W.3d 318, 321–22 (Tex. App.—San Antonio 2000, no pet.) (noting father’s misconduct during incarceration, along with behavior before 7 While Father’s guilt for the burglary offenses was adjudicated in 2016, the criminal conduct occurred in 2008. 15 imprisonment and child’s birth, showed father engaged in a course of conduct that was detrimental to child). As to Father’s drug use, there was evidence that Father: smoked marijuana with Mother sometime in 2015 or 2016; tested positive for marijuana and benzodiazepines in May 2016; was alleged to have committed a new offense of “possession of a substance” in 2016 leading, in part, to a motion to revoke his community supervision; smoked synthetic marijuana “several times” while at a transitional treatment center in April 2015; and tested positive for marijuana in December 2007 and 2008. There was, however, no evidence that Father engaged in any drug activity after being incarcerated or after the Department instituted the termination suit. Cf. In re J.J.L., __ S.W.3d at __, 2019 WL 2000804, at *7; In re N.J.H., __ S.W.3d at __, 2018 WL 6617360, at *5; In re T.N., 180 S.W.3d at 383. We conclude that these instances of drug use during an approximately eight-year period do not establish that Father knowingly engaged in conduct that endangered the wellbeing of E.M. Cf. In re J.J.L., __ S.W.3d at __, 2019 WL 2000804, at *7; In re A.J.H., 205 S.W.3d 79, 81 (Tex. App.—Fort Worth 2006, no pet.) (finding sufficient evidence for termination under § 161.001(b)(1)(E) where, “despite ongoing CPS proceedings, he smoked marijuana daily, refused anger management classes, refused drug treatment, refused counseling, and indicated that he intended to continue to smoke marijuana”). In regard to Mother’s drug use, there was no evidence presented that Father had knowledge of her drug use that led to the Department’s intervention. Therefore, Mother’s drug use cannot be imputed to Father.8 See TEX. FAM. CODE ANN. § 161.001(b)(1)(E); In re F.E.N., 542 S.W.3d at 764. 8 There is also no evidence in the record regarding any details of the “illicit drug use” by Mother that led to the Department’s intervention. 16  As to domestic violence and propensity for violence, Father has two alleged instances of violent conduct eight years apart. Neither incident, based on the record, caused serious bodily injury. As previously concluded, his conviction for injury to a child is too remote to support termination and does not support an inference that he endangered E.M. There is also no evidence that Father abused any other child. Finally, Father testified that: E.M.’s birth changed his outlook in life, he communicates with the child’s caregivers and inquires as to her wellbeing once a month, has pictures of E.M. he looks at every day, has requested parenting courses through correspondence, and was visited by E.M. on her first birthday and other times while Mother was alive. See In re S.A.P., 459 S.W.3d at 145 (quoting In re D.T., 34 S.W.3d at 640) (“However, ‘the relationship of the parent and child, as well as efforts to improve or enhance parenting skills, are relevant in determining whether a parent’s conduct results in ‘endangerment’ under section 161.001(1)(E), even where the parent is incarcerated.”); cf. In re L.M., No. 14-18-01047-CV, __ S.W.3d __, __, 2019 WL 1526426, at *8 (Tex. App.—Houston [14th Dist.] Apr. 9, 2019, no pet. h.) (“A lack of all contact with a child without any proffered excuse and no effort to ensure her well-being—coupled with multiple episodes of incarceration, the potential for future incarceration due to drug- related activity, and violence against the mother—is sufficient to support a termination finding based on endangerment.”). The trier of fact also could not have disregarded or found incredible Grandmother’s undisputed testimony that Father loves E.M. See In re J.F.C., 96 S.W.3d at 266. Father’s criminal history is properly considered as part of the review of the legal sufficiency of the evidence. See In re S.A.P., 459 S.W.3d at 145. Nevertheless, viewing the evidence in the light most favorable to the verdict, we conclude that Father’s 17 convictions do not establish that Father knowingly engaged in a course of conduct that endangered E.M.’s wellbeing. See In re F.M.E.A.F., __ S.W.3d __, __, 2019 WL 1291314, at *11; In re C.T.E., 95 S.W.3d at 466–67; In re R.R.F., 846 S.W.2d at 68–69; Wetzel, 715 S.W.2d at 391; cf. In re S.M.L., 171 S.W.3d at 479 (concluding that Father’s incarceration for assaulting a police officer once before and once after child birth, as well as his angry outbursts during termination hearing supported termination under subsection E; Father’s “most recent assault on a police office is particularly significant because he committed the crime knowing that . . . it would result in his incarceration” and leave his daughter without support); In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.) (concluding that Father’s incarceration for sexually assaulting a fifteen- month-old child and three other adjudications for aggravated sexual assault of child supported a finding that Father engaged in a course of conduct which endangered the emotional well-being of his child and showed a present and future danger to the child); In re M.D.S., 1 S.W.3d 190, 198–99 (Tex. App.—Amarillo 1999, no pet.) (concluding that sentences for burglary and sex with a minor, as well as prior convictions of marijuana possession, established endangering course of conduct). Furthermore, viewing the evidence in the light most favorable to the trial court’s verdict, we conclude that the evidence is legally insufficient to support termination under subsection (E). Based on our preceding discussion, the evidence before the trial court supporting termination included Father’s approximately eight instances of drug use throughout an almost eight-year period; one instance of violence perpetrated on the Mother by Father before E.M.’s birth which did not cause serious injury; and remote convictions and criminal acts that do not support an inference that Father endangered E.M. Based on the evidence, we conclude that a reasonable factfinder could not form a 18 firm belief or conviction that Father knowingly engaged in conduct which endangered the physical or emotional well-being of E.M. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E); In re K.M.L., 443 S.W.3d at 112–13 (“In cases requiring clear and convincing evidence, even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true.”); In re F.M.E.A.F., __ S.W.3d at __, 2019 WL 1291314, at *11; In re D.T., 34 S.W.3d at 636 (“In the cases we have found involving termination of parental rights of imprisoned parents, endangerment to a child could easily have been inferred from the underlying conduct of the parent.”); cf. In re J.O.A., 283 S.W.3d at 336 (concluding father’s admission of daily marijuana use before twins birth, history of domestic violence with mother, and failure to comply with service plan after twins were removed were sufficient to support termination under (E) despite father’s “significant” recent improvements in conduct); Boyd, 727 S.W.2d at 533–34 (concluding evidence was sufficient for termination under (E) when father was arrested for burglary both before and after child’s birth and there was “vague” evidence that father had supported the child while living with the child while on parole); In re A.J.H., 205 S.W.3d at 81; Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686–87 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (noting that parent engaging in illegal drug activity after agreeing not to do so in a service plan for reunification with her children is sufficient to establish clear and convincing proof of voluntary, deliberate, and conscious conduct that endangered the well-being of her children); In re K.M.M., 993 S.W.2d at 228. The facts of this case present no “more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment.” See In re K.M.L., 443 S.W.3d at 112–13; In re J.O.A., 283 S.W.3d at 345; Boyd, 727 S.W.2d at 533. 19 C. Termination Under § 161.001(b)(1)(Q) Father also challenges the trial court’s determination that there was clear and convincing evidence supporting termination under § 161.001(b)(1)(Q). Under § 161.001(b)(1)(Q), a parent’s rights can be terminated when a parent has knowingly engaged in criminal conduct that has resulted in the parent’s conviction of an offense, confinement, and inability to care for the child for not less than two years from the date of the filing of the petition. TEX. FAM. CODE ANN. § 161.001(b)(1)(Q). The purpose of subsection (Q) is to protect children from neglect. See In re A.V., 113 S.W.3d 355, 360 (Tex. 2003); see also In re K.G., No. 11-12-00130-CV, 2012 WL 3765058, at *3 (Tex. App.—Eastland Aug. 31, 2012, no pet.) (mem. op.). Incarceration alone does not show inability to care for a child. In re Caballero, 53 S.W.3d 391, 395 (Tex. App.—Amarillo 2001, pet. denied). Otherwise, the termination of parental rights could become an additional punishment automatically imposed along with imprisonment for almost any crime. In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.—Fort Worth 2004, no pet.). We employ a burden-shifting analysis to assess an incarcerated parent’s ability to care for a child. In re Caballero, 53 S.W.3d at 396; see also In re S.R., No. 13-15-00114-CV, 2015 WL 3657747, at *2 (Tex. App.—Corpus Christi–Edinburg June 11, 2015, no pet.) (mem. op.) (adopting Caballero’s analysis of the burden of proof under subsection (Q)). The party seeking termination must first establish that the parent will remain in confinement for the requisite period. In re B.D.A., 546 S.W.3d 346, 358 (Tex. App.—Houston [1st Dist.] 2018, no pet.); In re H.B.C., 482 S.W.3d 696, 702 (Tex. App.—Texarkana 2016, no pet.). The burden then shifts to the parent to produce “some evidence” as to how he would provide or arrange to provide care for the child during his incarceration. In re B.D.A., 546 S.W.3d at 358; In re Caballero, 53 S.W.3d at 396. “Cases 20 discussing the incarcerated parent’s provision of support through other people contemplate that the support will come from the incarcerated parent’s family or someone who has agreed to assume the incarcerated parent’s obligation to care for the child.” In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006) (per curiam); see also In re S.R., 2015 WL 3657747, at *2. However, an “incarcerated parent cannot meet his burden merely by producing evidence that there is an unincarcerated parent or grandparent who is willing and able to care for the child; instead, the parent must present evidence that the alternative caregiver is providing care on behalf of the parent.” In re J.G.S., __ S.W.3d __, __, No. 01-18-00844-CV, 2019 WL 1199521, at *11 (Tex. App.—Houston [1st Dist.] Mar. 14, 2019, no pet. h.) (citing In re H.R.M., 209 S.W.3d at 110); see also In re D.Z.R.- M., No. 14-13-01084-CV, 2014 WL 1390289, at *9 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (concluding that evidence of aunt’s care did not meet father’s burden because aunt’s care was “on her own behalf, rather than agreeing to assume the Father’s obligation to care for the Child while the Father is incarcerated,” and alternatively concluding that, even if father met burden, the Department met its subsequent burden). If the parent meets that burden of production, the Department then has the burden of persuasion to show by clear and convincing evidence that the parent’s provision or arrangement would not satisfy the parent’s duty to the child. In re Caballero, 53 S.W.3d at 396. Here, the Department proved that Father had been incarcerated for two years at the time of trial and that Father would continue to be incarcerated for at least two more years and possibly up to eight more years. However, Father presented testimony that the grandparents were willing to take care of the child; the Department supported the placement of the child with grandparents and Carlisle had “no concerns” with doing so; 21 E.M.’s attorney ad litem recommended placing the child with the grandparents; and Father testified he wanted the child to remain with the grandparents. Grandmother specifically testified that she would be willing to care for E.M. on Father’s behalf until he is able to provide support. This shifted the burden to the Department to show that the arrangement would not meet Father’s obligation to the child. See In re H.R.M., 209 S.W.3d at 110; In re J.G.S., __ S.W.3d at __, 2019 WL 1199521, at *11. The Department, however, did not present any evidence or argument that the arrangement with the grandparents was inadequate. Therefore, the evidence was legally insufficient to support termination under § 161.001(b)(1)(Q). See TEX. FAM. CODE ANN. § 161.001(b)(2); In re H.R.M., 209 S.W.3d at 110; In re Caballero, 53 S.W.3d at 396. We sustain Father’s first issue.9 III. CONCLUSION We reverse the trial court’s judgment terminating Father’s parental rights, and we affirm the remainder of the judgment.10 Ordinarily, when we find legally insufficient evidence to support a judgment, we render judgment to the contrary. See TEX. R. APP. P. 43.3. However, in cases involving involuntary termination of parental rights, “appellate courts are not in a position to 9 Because we find father’s first issue dispositive, we need not address his second issue. See TEX. R. APP. P. 47.1. 10 On appeal, Father does not specifically address the trial court’s findings in the termination order that (1) appointing him as permanent managing conservator would not be in the child’s best interest because such appointment would significantly impair the child’s physical health or emotional development, or (2) appointing the Department as the E.M.’s managing conservator would be in the E.M.’s best interest. Therefore, in these circumstances, our reversal of the trial court’s termination judgment does not affect the trial court’s appointment of the Department as managing conservator. See In re J.A.J., 243 S.W.3d 611, 612–13, 617 (Tex. 2007) (observing that the trial court continuously reviews the propriety of the Department’s conservatorship at placement-review hearings, which must occur at least once every six months until the child becomes an adult); see also In re G.C., No. 02-17-00259-CV, 2018 WL 547784, at *27 n.34 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem. op.) (finding legally insufficient evidence to support trial court’s best interest finding and remanding for further proceedings). 22 determine whether simply to deny the petition for termination or render some other order in the best interest of the child.” Van Heerden v. Van Heerden, 321 S.W.3d 869, 874–75 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (noting that “circumstances surrounding the parent-child relationship may have changed since the trial court’s original judgment, which would require a fact-finder to assess the new situation”). Accordingly, given the circumstances of this case and in the interest of justice, we remand for further proceedings consistent with this opinion. See TEX. R. APP. P. 43.3. DORI CONTRERAS Chief Justice Delivered and filed the 26th day of June, 2019. 23 

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 14-2739 ________________ ALDER RUN LAND, LP; ORRIN L. FRENCH, as trustee of the Schoonover Real Estate Trust; JEFFREY A. DALKE, as trustee of the Schoonover Real Estate Trust; CATHERINE G. ANDERSON, as trustee of the Catherine G. Anderson; DAVID K. DAHLGREN; MARJORIE DAHLGREN, husband and wife; BONNIE LOU DAHLGREN PETERS; TERRY PETERS, wife and husband, Appellants v. NORTHEAST NATURAL ENERGY LLC ________________ On Appeal from the District Court for the Western District of Pennsylvania (D.C. Civil No. 3-13-cv-00222) District Judge: Honorable Kim R. Gibson ________________ Submitted Pursuant to Third Circuit LAR 34.1(a) January 13, 2015 Before: MCKEE, Chief Judge, HARDIMAN, and SCIRICA, Circuit Judges (Filed: August 10, 2015) ________________ OPINION* ________________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge Appellants-Plaintiffs (collectively, “Schoonover”) brought suit against Northeast Natural Energy LLC (“Northeast”) alleging that Northeast refused to honor its agreement to enter into certain oil and gas leases. The District Court, finding that Northeast’s agreement to purchase such leases arose under earlier oil and gas leases that contained broad arbitration provisions, dismissed the claim and ordered the parties to arbitrate their dispute. Schoonover appeals, and we will affirm. I. In three separate but essentially identical leases (the “2010 Leases”), Schoonover granted East Resources, Inc., the right to produce oil and gas from approximately 1,800 acres of Schoonover’s property. The 2010 Leases indisputably contained an arbitration provision that provided: “Any issue, item or disagreement between Lessor and Lessee concerning this lease or performance there under shall be ascertained and determined by three disinterested arbitrators . . . .” Shortly after the 2010 Leases were executed, SWEPI, L.P., acquired East Resources and accordingly became the lessee thereunder. In the spring of 2011, Northeast sought to acquire certain oil and gas interests from SWEPI, including the 2010 Leases. But before doing so, Northeast required certain amendments to the 2010 Leases. Negotiations between Schoonover, Northeast, and SWEPI produced two sets of documents: the Letter Agreements, dated April 28, 2011, between Schoonover and Northeast; and the 2010 Lease Amendments, dated May 4, 2011, between Schoonover and SWEPI, the then-current lessee under the 2010 Leases. 2 Northeast eventually acquired the 2010 Leases as amended from SWEPI. The Letter Agreements between Northeast and Schoonover are central to this dispute. The Letter Agreements are three separate but nearly identical agreements which define the 2010 Leases as the “Underlying Lease” (and refer to them as such eleven times). Each Letter Agreement states: Should Northeast acquire an Assignment of . . . the Underlying Lease, then the parties hereto specifically agree that the Underlying Lease shall be subject to the following conditions: *** 3. For a period of eighteen (18) months from the date Northeast acquires the East Resources Leases, Northeast agrees to lease from the Lessor any additional oil and gas fee interests that may be acquired or identified and available to be leased by the Lessor and that are part of or contiguous to lands covered by the East Resources Leases . . . upon the same terms and conditions as set forth in the Underlying Lease, with the exception that the delay rental for the primary lease term of five (5) years will be a one-time payment of $2,000 per acre. (emphasis added). Paragraphs 1 and 2 set forth two additional conditions regarding a potential transfer of the 2010 Leases by Northeast, and paragraphs 4-9 set out typical contract terms such as choice of law and severability. In particular, paragraph 4 is an integration clause stating “This Agreement constitutes the entire contract between the parties . . . .” In April 2012, Northeast surrendered the 2010 Leases in accordance with their terms. But considering the Letter Agreements to still be in effect despite the surrender, Schoonover tendered 2,200 acres of oil and gas interests which Northeast refused to accept. Schoonover then brought suit on September 25, 2013, claiming breach of 3 paragraph 3 of the Letter Agreements. The District Court determined that “[w]ithout reference to the 2010 Leases, the Letter Agreements are incomplete and essentially meaningless,” and thus must be read together. Accordingly, the court ordered the case to be resolved through arbitration and this timely appeal followed. II. “‘We exercise plenary review over questions regarding the validity and enforceability of an agreement to arbitrate,’ and we are first obliged to determine which standard should have been applied [by the District Court].” Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (quoting Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 177 (3d Cir. 2010)) (citation omitted). “Review of the district court’s construction of a contract is . . . plenary.” Kroblin Refrigerated Xpress, Inc. v. Pitterich, 805 F.2d 96, 102 (3d Cir. 1986).1 III. The parties agree that arbitration is a question of contract and that Pennsylvania law should be applied “to interpret the parties’ agreement.” Gaffer Ins. Co., Ltd. v. Discover Reinsurance Co., 936 A.2d 1109, 1114 (Pa. Super. Ct. 2007). Though the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, “establishes a strong federal policy in favor of compelling arbitration,” Sandvik AB v. Advent Int’l Corp., 220 F.3d 99, 104 (3d Cir. 2000), the presumption applies “only when both parties have consented to and are bound by the arbitration clause,” Griswold v. Coventry First LLC, 762 F.3d 264, 271 (3d 1 The District Court had jurisdiction under 28 U.S.C. § 1332(a). We have jurisdiction under 28 U.S.C. § 1291. 4 Cir. 2014). Here, the question of whether there is a valid agreement to arbitrate comes down to one issue: So long as the Letter Agreements have a separate existence, without being merged into the 2010 Leases, Schoonover’s claims fall outside the scope of the arbitration clause in the 2010 Leases. But if the Letter Agreements and the 2010 Leases are all part of one transaction, as the District Court found, then the dispute must be arbitrated. A. We must first determine what standard should have been applied. The District Court applied a motion to dismiss standard, and Schoonover contends this was error. Schoonover is correct that in certain circumstances a District Court should apply a summary judgment standard to the question of whether a valid agreement to arbitrate exists. But this is not a default rule. As we explained in Guidotti, “when it is apparent, based on ‘the face of a complaint, and documents relied upon in the complaint,’ that certain of a party’s claims ‘are subject to an enforceable arbitration clause, a motion to compel arbitration should be considered under a Rule 12(b)(6) standard without discovery’s delay.’” Guidotti, 716 F.3d at 776 (quoting Somerset Consulting, LLC v. United Capital Lenders, LLC, 832 F. Supp. 2d 474, 482 (E.D. Pa. 2011)). Because all of the pertinent documents are attached to the complaint, a motion to dismiss standard was appropriate unless “the plaintiff has responded to a motion to compel arbitration with additional facts sufficient to place the agreement to arbitrate in issue.” Guidotti, 716 F.3d at 776. Schoonover produced no additional facts that required either discovery or the burden shifting of a summary judgment standard. Their argument is simply that the 2010 5 Leases and the Letter Agreements should be read as independent documents—a legal question based entirely on documents attached to their initial complaint.2 Accordingly the District Court correctly applied a motion to dismiss standard, as we will in our review. B. “When a written contract is clear and unequivocal, its meaning must be determined by its contents alone. In construing a contract, we must determine the intent of the parties and give effect to all of the provisions therein.” Gaffer, 936 A.2d at 1113 (quoting Capek v. Devito, 767 A.2d 1047, 1050 (Pa. 2001)). The District Court found that “[t]he only reasonable interpretation of [the Letter Agreements] is that, once Northeast acquired the 2010 [L]eases, the provisions of the Letter Agreements modified those leases.” We agree. First, the Letter Agreements define the 2010 Leases as the “Underlying Lease.” Next, the Letter Agreements state that, upon Northeast’s acquisition of the 2010 Leases, those leases would become “subject to the following conditions.” And of most interest to this case, the paragraph that Schoonover claims was breached by Northeast, paragraph 3, states that any new leases would be “upon the same terms and 2 Discovery had already begun in this case before the District Court ruled on the motion to dismiss, and Northeast turned over to Schoonover earlier versions of the Letter Agreements that Schoonover contends support the conclusion that the Letter Agreements were stand-alone documents. Even if these drafts were admissible, see Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004) and discussion, infra, they do not raise the type of factual dispute regarding the existence of an agreement to arbitrate that would require a summary judgment standard. Cf. Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 159 (3d Cir. 2009) (applying a summary judgment standard when plaintiff submitted an affidavit swearing she had never seen the bylaws which included the contested arbitration provision and thus could not be bound thereby). 6 conditions as set forth in the Underlying Lease.” One such term is that any dispute arising under the leases would be subject to arbitration, as this one must be. Like the District Court, we find no other plausible reading of the Letter Agreements. Schoonover raises several arguments why this reading of the Letter Agreements is erroneous. First, they urge the presence of an integration clause “creates an ambiguity about the meaning of the writing” and the court should look to the earlier drafts of the Letter Agreements as evidence the parties intended the Letter Agreements to be separate and distinct from the 2010 Leases. But under Pennsylvania law, Where the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract . . . and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence. Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004) (citation omitted). This is particularly true when a writing contains an integration clause, as the Letter Agreements did. It is also true “that this general rule does not apply where the agreement is ambiguous.” Daset Min. Corp. v. Indus. Fuels Corp., 473 A.2d 584, 592 (Pa. Super. Ct. 1984). But this agreement is not ambiguous; there are no terms that need explanation. Id. (citing Carter v. Edwin J. Schoettle Co., 134 A.2d 908 (Pa. 1957)) (“[E]vidence of prior negotiations is inadmissible to show an intent at variance with the language of the written agreement, but is admissible to show local usage, which would give a particular meaning to the language.”). Schoonover attempts to use the past draft to show an intent 7 different from what is evident from the face of the document. The District Court did not err in declining to consider the earlier drafts. Schoonover next contends the “commitment in Paragraph 3 to lease additional oil and gas interests had no relationship to the 2010 [Leases].” Although initially contending we should disregard the integration clause and consider the prior drafts as evidence, now Schoonover employs the integration clause to support its theory that we cannot look to the 2010 Leases for necessary terms of the agreement to lease additional oil and gas interests. They also contend that, because the parties later amended the 2010 Leases and made no reference to the Letter Agreements, it is clear the Letter Agreements were meant to be entirely separate contracts. But it is well established that, “[w]here several instruments are made as part of one transaction they will be read together, and each will be construed with reference to the other; and this is so although the instruments may have been executed at different times and do not in terms refer to each other.” Neville v. Scott, 127 A.2d 755, 757 (Pa. Super. Ct. 1956). This is true even if the later instrument has an integration clause. Id. (citing Int’l Milling Co. v. Hachmeister, Inc., 110 A.2d 186, 191 (Pa. 1955)). Here, the Letter Agreements were part of one business transaction—Northeast’s acquisition of the 2010 Leases from SWEPI—that amended the 2010 Leases, and the Letter Agreements and the 2010 Leases do “in terms refer to each other.” This is no less true because the 2010 Lease Amendments do not refer to the Letter Agreements, nor because the Letter Agreements are not titled “amendments.” Paragraph 3 states that any new leases would be “upon the same terms and conditions as set forth in the Underlying 8 Lease.” Thus “both agreements were inexorably associated with the same transaction,” Kroblin, 805 F.2d at 108, and the District Court was correct to read them together. Finally, Schoonover cites to two cases, E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187 (3d Cir. 2001) and Industrial Electronics Corp. of Wisconsin v. iPower Distribution Group, Inc., 215 F.3d 677 (7th Cir. 2000), in which third party non-signatories to a contract with an arbitration provision were not required to arbitrate their dispute arising out of a later, related transaction with a signatory. But these cases are inapposite because both Schoonover and Northeast (by assignment) are signatories to both the 2010 Leases and the Letter Agreements. In sum, we, like the District Court, are unpersuaded by Schoonover’s attempts to separate the Letter Agreements from the 2010 Leases. Schoonover must arbitrate this dispute with Northeast as it agreed to do. IV. For the foregoing reasons, the judgment of the District Court will be affirmed. 9 

273 F.Supp. 68 (1967) MERCK & CO., Inc., Plaintiff, v. CHASE CHEMICAL COMPANY, Arroyo Pharmaceutical Corporation, Sidney Chasman and Randolph Chasman, Defendants. Civ. A. No. 270-62. United States District Court D. New Jersey. September 1, 1967. *69 Shanley & Fisher, Newark, N. J., by Frank L. Bate, Newark, N. J., Ward, Haselton, McElhannon, Orme, Brooks & Fitzpatrick, by Joseph M. Fitzpatrick, Charles B. Cannon and Laurence F. Scinto, New York City, of counsel, for plaintiff. Dughi, Johnstone & O'Dwyer, Westfield, N. J., by Louis J. Dughi, Westfield, N. J., Davis, Hoxie, Faithfull & Hapgood, by John Hoxie and William Kilgannon, New York City, of counsel, for defendants. OPINION AUGELLI, District Judge: This is an action for infringement of United States Letters Patent No. 2,563,794 ('794 patent) and No. 2,703,302 ('302 patent). The subject matter is vitamin B-12 and vitamin B-12 active compositions. *70 Plaintiff Merck & Co., Inc. (Merck) is a New Jersey corporation, having a place of business in Rahway, New Jersey, and is the owner, by assignment, of the '794 and '302 patents. Defendant Chase Chemical Company (Chase), is a New Jersey corporation, having a place of business in Newark, New Jersey. Defendants Sidney and Randolph Chasman, are residents of New Jersey, and President and Secretary-Treasurer, respectively, of Chase. Defendant Arroyo Pharmaceutical Corporation (Arroyo),[1] is a Puerto Rican corporation, having a manufacturing plant in Arroyo, Puerto Rico. This Court has jurisdiction over the subject matter and of the parties to this action. This is admitted by defendants, as is also the proper laying of venue. 35 U.S.C.A. §§ 271 and 281; 28 U.S.C.A. §§ 1338(a), 1391(c), 1400(b), 2201 and 2202. The action was tried to the Court on the issues of validity and infringement of the '794 and '302 patents as raised by Merck's original, amended, and supplemental complaints, and defendants' answers thereto, and on defendants' counterclaims for a declaratory judgment of invalidity and non-infringement of the patents. Merck seeks a permanent injunction, an accounting for damages, and an award of treble damages and reasonable attorneys' fees because of the alleged "deliberate and wilful" infringement of the patents by defendants. The '794 patent, entitled "Vitamin B-12" issued on August 7, 1951, in the names of Edward L. Rickes and Thomas R. Wood, as co-inventors, on an application, Serial No. 108,668, filed August 4, 1949. Said application is stated in the patent to be "a continuation-in-part of our pending applications, Serial No. 20,356, filed April 10, 1948, now abandoned, and Serial No. 38,175, filed July 10, 1948." The invention of the '794 patent is said to relate "to the preparation and isolation of a therapeutically valuable substance and more particularly, to the preparation of a substance obtained by the cultivation of suitable strains of the microorganism STREPTOMYCES GRISEUS in suitable culture mediums". It is further stated that the "new chemical compound", which Rickes and Wood named "vitamin B-12", is "capable of promoting the growth of LACTOBACILLUS LACTIS Dorner, and possesses marked and effective action in the therapeutic treatment of Addisonian pernicious anemia[2] and other macrocytic anemias." The '794 patent contains but one claim, a product claim, which reads as follows: "The compound vitamin B-12, an organic substance containing cobalt, together with carbon, nitrogen, hydrogen, oxygen, and phosphorous, said compound being a red crystalline substance soluble in water, methyl and ethyl alcohol and phenol, and insoluble in acetone, ether and chloroform, and exhibiting strong absorption maxima at about 2780 Å., 3610 Å. and 5500 Å., and an L.L.D. activity of about 11,000,000 L.L.D. units per milligram."[3] *71 The '302 patent, entitled "Vitamin B-12 Active Composition and Process of Preparing Same", issued on March 1, 1955, also in the names of Rickes and Wood, as co-inventors, on an application, Serial No. 324,834, filed December 8, 1952. Said application is stated in the patent to be "a continuation-in-part of our co-pending applications Serial No. 38,175, filed July 10, 1948, now abandoned, Serial No. 110,222, filed August 4, 1949, now Patent No. 2,695,862, and Serial No. 146,404, filed February 25, 1950, which applications are, in turn, continuations-in-part of our application Serial No. 20,356, filed April 10, 1948, now abandoned." The invention of the '302 patent, as set forth therein, "is concerned generally with the production of valuable vitamin products by fermentation. More particularly, it relates to vitamin B-12 active concentrates which possess animal protein factor (APF)[4] activity, and which can be characterized by their property of promoting the growth of the microorganism LACTOBACILLUS LACTIS Dorner (L.L.D.), and to methods for producing such vitamin B-12 active, APF-active and L.L.D.-active materials utilizing selected strains of microorganisms belonging to the subphylum Fungi. These vitamin B-12 active concentrates are valuable as feed supplements and for the treatment of nutritional diseases." The '302 patent contains 12 claims, but of these only product claims 1, 2 and 3, and process claims 4, 5, 6, 11 and 12 are at issue. The product claims are practically identical and differ only in the minimal limit of the L.L.D. activity at 440, 1500 and 65,000 L.L.D. units per milligram in each claim, respectively. Product claim 1 is typical and reads as follows: "1. A vitamin B-12 active composition comprising recovered elaboration products[5] of the fermentation of a vitamin B-12 activity producing strain of Fungi selected from the class consisting of Schizomycetes, Torula, and Eremothecium, the L.L.D. activity of said composition being at least 440 L.L.D. units per milligram and less than 11 million L.L.D. units per milligram." Of the process claims of the '302 patent in issue, claim 5 is typical and reads as follows: "5. A process for the production of a vitamin B-12 active composition *72 which comprises fermenting an aqueous nutrient medium under submerged aerated conditions by means of a vitamin B-12 activity producing strain of Fungi selected from the class consisting of Schizomycetes, Torula, and Eremothecium, extracting vitamin B-12 active substances therefrom, and recovering from the resulting extract a vitamin B-12 active composition having an L.L.D. activity of at least 440 units per milligram." Process claim 4 differs from 5 in defining the process as one for the production of an L.L.D. active composition; process claim 6 differs from 5 in specifically limiting the vitamin B-12 activity producing organism to a strain of Schizomycetes; process claim 11 differs from 5 in reciting the lower limit of L.L.D. activity of the vitamin B-12 active composition produced in accordance with the claimed process as being at least 1500 L.L.D. units per milligram; and process claim 12 differs from 5 in reciting the lower limit of L.L.D. activity as at least 1500 and in limiting the vitamin B-12 activity producing organism recited in said claim to a vitamin B-12 activity producing strain of Schizomycetes. It may be noted here that in connection with product claim 1, and process claims 4, 5 and 6 of the '302 patent, Merck asserts that the lower limit of 440 L.L.D. units per milligram as recited in said claims, excludes such impractical and low potency fermentation products as may have existed in nature, and that a composition having a vitamin B-12 activity of at least 440 L.L.D. units per milligram, within the language of the claims, is sufficiently potent and concentrated to insure freedom from undesirable or toxic materials. For a better understanding of the issues involved in this litigation, some recital of the history leading to the issuance of the patents in suit is necessary. Prior to 1926, medical science could offer very little help to persons afflicted with the disease of pernicious anemia. But in 1926, Doctors Minot and Murphy, of Harvard Medical School, found that pernicious anemia patients were benefitted by the addition to their diets of substantial quantities of the liver of cattle. For this discovery Minot and Murphy received the Nobel Prize. But neither they nor anyone else knew what it was in liver that controlled the disease. The Minot-Murphy discovery spurred efforts by medical and pharmaceutical workers throughout the world to attempt to isolate and identify the factor in liver that was responsible for the beneficial anti-pernicious anemia effect. The search for the anti-pernicious anemia factor (APAF) in liver was long and tedious. New extracts and concentrates of liver were developed, but they could only be tested by administration to pernicious anemia patients in relapse, and opportunities for such clinical testing were not plentiful. By 1947, however, a number of liver extracts and concentrates were on the market. These preparations reduced substantially the dosage amounts required by patients, but some patients were unable to tolerate them, and they were expensive. Just what it was in liver that was responsible for the anti-pernicious anemia factor remained a matter of speculation. Some researchers were of the opinion that multiple factors were involved. Others thought the factor was a hormone produced within the body of the animal. Still others believed it might be a vitamin formed in the liver of cattle after slaughter by postmortem autolysis. Tests, however, indicated no relationship between the liver fractions and the then known vitamins. In short, it may be said that there were as many different theories concerning the identity of the beneficial substance in liver as there were investigators. An indication of the scope and complexity of the problem that confronted the investigators in their efforts to isolate and identify the anti-pernicious factor in liver is disclosed in a joint report published in 1945 by Dr. Subbarow, Research Director of Lederle Laboratories, Dr. Elkin, also of Lederle, and Dr. Hastings *73 of Harvard Medical School. The purpose of this report was to make known "[t]he progress made since 1926 toward the isolation and identification of the anti-pernicious anemia material of liver." These researchers, after an analysis of all the then current learning on the subject, and a consideration by them of the 129 articles cited in their report, could only conclude that: "It is, unfortunately, apparently not possible at the present time [1945] to reconcile the various claims and facts regarding the material or materials which are present or capable of extraction from liver, and which are therapeutically active in pernicious anemia." Efforts to isolate and identify the APAF in liver continued. On June 10, 1946, Dr. Thomas R. Wood, one of the patentees named in the '794 and '302 patents, entered the employ of Merck. One of his first assignments was to attempt to isolate the anti-pernicious anemia factor or factors in liver. Earlier attempts by Merck to do this had proved unsuccessful and were abandoned. Dr. Wood worked on various fractionations of liver concentrates, using clinical testing to check the potency of the fractions. However, as previously stated, this type of testing was a slow process, depending as it did on the availability of suitable patients and the time necessarily required to ascertain the results obtained by the liver concentrates in individual cases. The lack of a good assay or test hampered the efforts of investigators to achieve the desired objective. An assay procedure that would expedite the work was needed. Such an assay was developed by Dr. Mary Shorb. Dr. Shorb was a bacteriologist employed by the United States Department of Agriculture, and later connected with the Department of Poultry Husbandry at the University of Maryland. In 1946, she was conducting experiments designed to develop an assay or test for an unidentified rat growth factor found in liver extracts and other foodstuffs. For this purpose, Dr. Shorb selected the microorganism Lactobacillus lactis Dorner. Using liver products having a determined value in the treatment of pernicious anemia, she noted that the rate of growth of the organism Lactobacillus lactis Dorner (L.L.D. activity), varied in an almost linear relation to the indicated anti-pernicious anemia potencies of the liver extracts she tested. This led Dr. Shorb to speculate that her assay might be useful in liver fractionation work, but of this she could not be certain because it was found that the organism she was testing was also responsive to materials, other than liver, which did not contain any anti-pernicious anemia activity. In November 1946, Dr. Shorb's work came to Merck's attention. A limited number of liver samples were thereupon sent by Merck to Dr. Shorb at the University of Maryland for assay and a report on the L.L.D. activity of the samples submitted. Thereafter, on February 1, 1947, Merck entered into a contract with the University of Maryland, pursuant to which Dr. Shorb was to continue her efforts to perfect an assay for the anti-pernicious anemia factor. In furtherance of this program, it was agreed that Dr. Shorb would test, with her assay procedure, for L.L.D. activity, such materials as might be forwarded to her by Merck. For convenience in testing, use was made of an existing liver extract to which was arbitrarily assigned a potency of 1000 L.L.D. units[6] per milligram. This became the standard against which L.L.D. active products were to be measured. The state of development of Dr. Shorb's assay as of May 1947, is indicated by her statement that "[b]ecause of many variables influencing the growth of L. lactis Dorner, further work is needed in the *74 separation of the various factors before accurate assay methods can be worked out. L. lactis Dorner should be of value in the further study of these factors and their relation to anemias." Notwithstanding the need for work "before accurate assay methods can be worked out", Merck admits that the L.L.D. assay, as developed by Dr. Shorb, was a tool of major assistance in the search for the anti-pernicious anemia factor. It was used by Dr. Wood to check the potency of the various liver fractions he was testing, with a considerable saving of time over the slower clinical testings that were dependent upon the availability of pernicious anemia patients. But the record does not support any finding that the Shorb assay pointed to fermentation materials as a source of the anti-pernicious anemia factor. In addition to the work on liver, Merck also undertook the study of fermentation materials as a possible source of the anti-pernicious anemia factor or factors. In June 1947, Edward L. Rickes, the co-inventor named with Dr. Wood in the '794 and '302 patents, was assigned by Wood to make this study. From that time forward, the research work at Merck proceeded along two lines: (1) the investigation of fermentation materials as a possible source of the anti-pernicious factor, and (2) the isolation and identification of that factor in liver. Wood worked with and supervised the Rickes fermentation investigation while he, Wood, continued his work on liver fractionations. Rickes experimented with, and performed, extraction operations on a number of materials derived from fermentation sources, samples of which would be sent to Merck's Microbiology Department for L.L.D. assay. Among the samples was an extract of grisein broth. Grisein was an antibiotic then being made and under study by Merck, but it was never successfully developed as an antibiotic for commercial use. This grisein was produced by a particular strain of Streptomyces griseus, a microorganism that is grown in a nutritional broth under aerobic conditions. Of all the fermentation products tested, grisein was selected as the most suitable for further experimentation. By September 16, 1947, Rickes and Wood succeeded in recovering from grisein fermentation source materials, compositions having a potency of over 440 L.L.D. units per milligram, the range being from 514 to 1200.[7] These compositions of at least 440 L.L.D. units per milligram are said to come within the terms of claim 1 of the '302 patent. Upon obtaining these results, research was intensified, and included extractions, concentrations, and chromotographic fractionations of grisein materials, in an effort to isolate therefrom the anti-pernicious anemia factor. On October 22, 1947, Rickes noted a pink or reddish color in some of the fractions, the recurrence of which was found to be correlated with the activity of the materials. Samples of grisein concentrates, tested by Merck's nutritional expert, Dr. Ott, who found them to be successful in promoting the growth of chicks. On December 11-12, 1947, Rickes, for the first time, obtained red crystals from a water solution of a grisein fermentation extract upon the addition of acetone thereto. These red crystals, upon assay, yielded an average reading of 11,000,000 *75 L.L.D. units per milligram. This, says Merck, was the first isolation of the anti-pernicious factor, and is the compound described and claimed in the '794 patent. The acetone-water crystallization technique used by Rickes to obtain red crystals from fermentation materials was subsequently found to be successful in extracting the anti-pernicious anemia factor in crystalline form from liver. In March 1948, the red crystalline material obtained from liver and from fermentation were compared and found to be identical. The crystals from both sources were successfully chick tested, and were also successfully tested clinically on patients suffering with pernicious anemia. Thereafter, on April 10, 1948, the first Rickes and Wood application on vitamin B-12, Serial No. 20,356, was filed. Consideration will now be given to the issues raised by the pleadings in this case. Passing for the present the presumption of validity that attaches to patents by virtue of section 282 of the Patent Act of 1952, 35 U.S.C.A. § 282, section 101 of the Act, 35 U.S.C.A. § 101, authorizes the issuance of a patent for "any new and useful * * * composition of matter", provided, of course, that there is a compliance with the other statutory conditions of patentability. Merck claims that the vitamin B-12 compound of the '794 patent, and the vitamin B-12 active compositions of the '302 patent, are new and useful compositions of matter; that the same can be produced in adequate quantities by fermentation processes under man-controlled conditions, and sold commercially for medicinal and nutritional purposes; that such products were not available prior to their invention by Rickes and Wood; that the products supplied a long-felt need in eliminating the disadvantages of liver extracts in the treatment of pernicious anemia, and also, in the field of animal husbandry, for a dietary growth supplement; and that these products have met with commercial success and acceptance. Defendants disagree, and they first attack the validity of the '794 and '302 patents on the ground that the patent specifications fail to meet the requirements of 35 U.S.C.A. § 112. That section lays down the rule that a patent specification must disclose the invention in such clear terms "as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same * * *." One contention made under this section 112 defense is that the patents lack a sufficient description of the strains of organisms used to produce vitamin B-12 or vitamin B-12 active materials in terms of an identifying number for a culture deposited in a culture collection. Defendants argue that this information could have been included in the patent specifications, and that the failure to do so renders the specifications insufficient under the statute. This argument is premised on the assumption that a person skilled in the art would be required "to conduct [his] own screening and fermentation program, including isolation of strains from various sites, and cultivation of the strains under conditions to be developed by the investigator for the particular strain before [he] can attain an organism capable of producing B-12 active material." The evidence does not sustain the position taken by defendants on this phase of the case. It is, of course, well settled, that a patent is invalid for insufficient disclosure if, in order to practice the invention, a person skilled in the art must resort to elaborate experimentation, independent investigation, or exercise inventive skill. Standard Brands v. National Grain Yeast Corp., 101 F.2d 814 (3 Cir. 1939); Standard Oil Co. of California v. Tide Water Associated Oil Co., 154 F.2d 579 (3 Cir. 1946). But such is not the situation here. The fact that preliminary tests may have to be made will not invalidate a patent for insufficient disclosure when the character and limitations of the tests are well known to the art. The particularity and certainty of disclosure that the law requires in patents is not greater than is reasonable, having regard to their subject matter. *76 Minerals Separation, Ltd. v. Hyde, 242 U.S. 261, 37 S.Ct. 82, 61 L.Ed. 286 (1916); Locklin v. Switzer Bros. Inc., 299 F.2d 160 (9 Cir. 1961). Defendants are attempting to equate the specifications of the '794 and '302 patents with the specification that was found to be insufficient in Ex parte Kropp, 143 USPQ 148 (POBA 1959). That case is clearly distinguishable on its facts. The organism used as the starting material in Kropp, which had been isolated from a soil sample obtained in Pennsylvania, could not be reproduced from the written description, nor did the specification give any source where it could be found. Reproduction of the invention (an antibiotic) from the Kropp specification, in the words of the appellate Examiner in Chief, "* * * would require the initiation of a screening program similar to the screening programs followed in discovering antibiotics in the first instance. Such a program would involve the collection of soil samples from different sources, making cultures from the samples, isolating organisms, reculturing the isolates, and testing the resultant cultures to determine if the particular antibiotic was produced. If the organism involved in the production of the antibiotic were of very common occurrence it might be found in a relatively short time, but if it were not of common occurrence it might not be found for a very long time, if found at all, and if it were a chance variation, the time before it was rediscovered might be extraordinary, or it might even never be found." It thus becomes apparent why the specification in Kropp was held insufficient. It was pointed out, however, that if Kropp involved "* * * a known organism which had a well defined source and which had been obtained and used by others before, or even with an organism which was merely known and available to persons skilled in the art * * *", the question of the sufficiency of the disclosure would not have arisen. The specifications in the case at bar deal with known and available organisms. The patents pertain to the arts of chemistry and microbiology, and their specifications are addressed to persons skilled in those sciences. The '794 patent makes specific reference to a grisein producing strain of Streptomyces griseus suitable for the production of vitamin B-12. There was uncontradicted testimony that as of April 10, 1948, the date on which the first Rickes and Wood application (Serial No. 20,356) on vitamin B-12 was filed, there was available at Rutgers University, in a stock culture collection, a grisein producing strain of Streptomyces griseus; that this organism was suitable for the production of vitamin B-12; that it could be obtained by anyone for experimental or commercial use; and that the identification of that particular strain had been made and published by Rutgers in January 1947. There was also undisputed testimony that the grisein producing strain of Streptomyces griseus was the only strain of that microorganism mentioned in the Rutgers publication; that it was this strain that Merck requested and got from Rutgers; that this same strain has been and still is available, and that anyone requesting it would get what Merck got, namely, a strain of Streptomyces griseus suitable for the production of vitamin B-12. The '794 specification teaches how the claimed compound of the patent may be obtained by the cultivation of suitable strains of the microorganism Streptomyces griseus in a suitable culture medium. The specification describes, as a starting material, a crude L.L.D. active concentrate of Streptomyces griseus elaboration products, and tells how that concentrate, which produces L.L.D. active ingredients from which vitamin B-12 may be derived, can be prepared. A person skilled in the art would need only to conduct a fermentation of the organism selected and assay the elaboration products for L.L.D. activity. The testimony was uncontradicted that a trained chemist, by following the teachings of the *77 '794 patent, would be able to produce vitamin B-12, and that the fermentation processes and L.L.D. assays described in said patent are procedures that are well understood and easily performed by those skilled in the art. In the '302 specification, reference is made to a number of different organisms within the classes Schizomycetes, Torula and Eremothecium which are useful in the production of vitamin B-12 active compositions. The specification gives 13 examples of the use made of a number of these organisms to produce the claimed compositions, suitable nutrients, and different recovery techniques for obtaining vitamin B-12 active compositions. A number of tests are also set forth by means of which the proper strain of organism capable of producing vitamin B-12 active compositions may be selected. Here again, the testimony establishes that a trained microbiologist, by following the teachings of the '302 patent, would be able to produce vitamin B-12 active compositions. For the reasons stated, the Court is satisfied that the omission to describe the organisms mentioned in the '794 and '302 specifications in terms of identifying numbers in a publicly available culture collection, does not render the specifications insufficient under 35 U.S.C.A. § 112. There is no factual basis to support defendants' contention that this lack of disclosure would require a person skilled in the art to conduct an extensive screening and fermentation development program, tantamount to discovery, before he could attain an organism capable of producing vitamin B-12 materials. The evidence is to the contrary. Another attack for insufficiency of disclosure under 35 U.S.C.A. § 112, directed to the '794 patent, is that the crystalline fraction, which is the end-product obtained by the '794 recovery procedure, is not pure vitamin B-12, later called cyanocobalamin, but is a complex crystal, in which cyanocobalamin is mixed with other cobalamins. In this connection it is pointed out that the "cobalamin" nomenclature did not exist at the time the '794 patent was issued. This nomenclature, say defendants, came later, after the molecular structure of the vitamin was elucidated and found to be plural in nature. As a family, the molecules were called "cobalamins", and the most stable of them, the one having a "cyano" group in the molecule was named "cyanocobalamin". It is contended that it was not until late 1949, after the plural nature of the vitamin was known and the cyano form differentiated, that the distinction between "B-12" and "B-12-like" was made by Merck, at which time the name "vitamin B-12" was confined to the cyano form, and the other cobalamins were called "B-12-like" compounds. Defendants argue that before the plural nature of the material was uncovered, vitamin B-12 meant simply the product obtained by the recovery procedure described in the '794 patent, a mixture of cobalamins, and not the "pure, crystalline cyanocobalamin vitamin B-12", claimed as the patented product. In support of the foregoing, defendants refer, inter alia, to the '302 patent and three other patents owned by Merck: WOLF (2,530,416), issued November 21, 1950; DENKEWALTER (2,678,900), issued May 18, 1954; and KACZKA (2,738,301), issued March 13, 1956. This argument, which laboriously threads its way through the massive record in this case, is without substance. It takes, as an admitted fact, that a Streptomyces griseus fermentation, such as the '794 patent uses for its starting material, produces in its broth, a mixture of cobalamins. Hence it is argued "as a minimum first proposition", that "there can be no doubt of the possibility that a crystalline fraction recovered from the broth of such fermentation is likewise a mixture of cobalamins." Assuming this to be true, it does not at all follow that such a mixture, when subjected to the '794 recovery procedure, does not yield the claimed compound of that patent. Examples 7 and 8 of the '302 patent are cited by defendants to show that the crystalline precipitate from a Streptomyces *78 griseus broth is a complex crystal, containing both vitamin B-12 and vitamin B-12-like substances. But the fact is, although defendants attempt to minimize it, that the recovery procedure used in the cited examples, differed from the recovery procedure described in the '794 patent. The Wolf patent relates to procedures for converting vitamin B-12-like substances to vitamin B-12. The patent is cited as being the first disclosure of the existence of several active forms of vitamin B-12 producing compounds, and of the use of cyanamid ions to effect conversion of the vitamin B-12-like substances to pure vitamin B-12. This later-in-time "first disclosure" in no way establishes that the recovery procedure of the '794 patent was incapable of producing pure vitamin B-12. The evidence hereinafter mentioned shows otherwise. The Denkewalter patent covers new and improved procedures for the recovery of vitamin B-12. It describes a fractionation system that may be used either to improve the recovery of the several B-12 active substances as one mixed product, free of inactive impurities, or to selectively recover vitamin B-12 free of the other active substances. The patent is cited to show that concentrates from Streptomyces griseus fermentations are mixtures of B-12 active substances, and also to highlight the difficulties experienced with the '794 style of recovery in the separation of B-12 active substances and associated impurities. Defendants assert that nothing like the Denkewalter fractionation system is described in the '794 patent, and that it is evident that without some such effective further fractionation, the '794 patent yields only a crystalline mixture and not pure cyanocobalamin. Again, the evidence is to the contrary. There is no question that the Denkewalter patent teaches a more efficient recovery method to obtain pure cyanocobalamin. But this later acquired knowledge can have no bearing on the validity of the '794 patent. The sufficiency of the disclosure of the '794 patent must be measured in terms of the specification as of the time it was written and passed upon by the Patent Office. The Kaczka patent relates to the preparation of a chemically modified form of vitamin B-12, called vitamin B-12a or hydroxocobalamin. This patent is said by defendants to provide the most pertinent evidence in the record concerning the true nature of the product resulting from the '794 recovery procedure, in that said patent shows that a red crystalline precipitate obtained thereby, from a Streptomyces griseus broth, is a mixture of cobalamins in which the cyanocobalamin content can be only about one-half. Attention is also called to the fact that the Kaczka patent discloses a close similarity of the "absorption maxima" curves of B-12 and B-12a, and the need for a special procedure, because of the wide difference in their partition coefficients, to separate the cyano form of cobalamin from the hydroxo form, when both are in a crystalline mixture. Defendants argue that the intelligence imparted by the Kaczka patent is proof that the '794 recovery procedure will not produce pure cyanocobalamin. But again, the proof is to the contrary. In sum then, defendants argue that viewed in light of the disclosures of these later dated Merck patents, and other evidence in the case, it is clear that the '794 patent does not teach a fractionation procedure by which to recover pure cyanocobalamin, free of other B-12 active compounds; that such procedure, at best produces a mixture of cobalamins, with whatever inactive materials come with it; and that in order to obtain pure cyanocobalamin, resort must be had to purification steps not taught in the '794 specification. The evidence is practically uncontradicted that by following the teachings of either the first Rickes and Wood application, Serial No. 20,356, filed April 10, 1948, or the '794 patent, a person skilled in the art, a trained chemist, would produce pure crystalline vitamin B-12, the claimed compound, now known as cyanocobalamin. *79 In the '794 patent, a number of distinguishing characteristics of vitamin B-12 are set forth, including the wavelengths and absorption intensities of the compound and its partition coefficient in toluene, ortho-cresol and water, and water/benzl alcohol systems. The patent teaches that when a crystalline product or a high degree of purification is wanted, "[t]he crystals may be redissolved in water and precipitated with acetone several times to remove any impurities that may still remain." Developments at different stages of the recovery procedure are noted so that the trained chemist would know whether or not the operation is progressing satisfactorily, and would also be able to determine that the end-product obtained was pure cyanocobalamin and not hydroxo or other forms of cobalamin. Dr. Earl Pierson, a chemist employed by Merck, and the holder of degrees in organic chemistry, testified that the '794 patent disclosed pure crystalline vitamin B-12, now known as cyanocobalamin, and that the '356 application filed April 10, 1948, likewise made a similar disclosure. Dr. Pierson further testified that a skilled chemist, following example 2 of said application, would obtain cyanocobalamin of 90-95% purity; also, that there was teaching in the '356 application that would enable the skilled chemist to improve the purity of the cyanocobalamin so obtained, if necessary; and that the purity of cyanocobalamin obtained by one crystallization could be improved by re-crystallization, a technique that was well known and in common use in 1947. Edward L. Rickes, one of the co-inventors named in the '794 patent, testified that in January 1948, he produced a batch of crystals, designated as sample 481-30A, in accordance with example 2 of the patent, which is practically identical with the same numbered example in the '356 application. He did not use any "countercurrent distribution"[8] procedure on the crystals. This same sample, 481-30A, was tested in February 1948, by Merck's research chemist, Dr. Donald E. Wolf. He ran a countercurrent distribution on the crystals and found them to be 98-99% pure cyanocobalamin. The sufficiency of the disclosures of the '794 and '302 patents passed muster in the United States Patent Office. While this, of course, is not binding on this Court, it is a factor to be considered in light of the expertise and competence that the trained personnel of the Patent Office bring to bear on problems involved in matters of this kind. Moreover, and more importantly, the Court is satisfied, upon a consideration of the evidence in this case, that the '794 and '302 patents fully satisfy the requirements of 35 U.S.C.A. § 112. See Guaranty Trust Co. of New York v. Union Solvents Corp., 54 F.2d 400 (D.Del.1931), aff'd 61 F.2d 1041 (3 Cir. 1932). What has already been said also disposes of the argument directed to the alleged insufficiency of the 1948 applications mentioned in the '794 and '302 patents. These are the so-called "parent" applications, Serial No. 20,356 filed April 10, 1948 and Serial No. 38,175 filed July 10, 1948. Defendants contend that the failure to set forth in said applications a sufficient description of the organisms suitable for the production of vitamin B-12 and vitamin B-12 active compositions, and the failure to sufficiently describe the claimed subject matter of the patents, render the applications fatally defective, under 35 U.S.C.A. § 120, as a proper basis upon which said patents may rely for their effective filing dates. The lack of sufficient descriptions of the organisms centers around the omission *80 to describe or refer to any publicly available culture collections in which strains of the organisms mentioned in the applications may be found or from which they may be obtained. But as mentioned earlier in this opinion, the organisms named in the applications and in the patents are well known organisms to persons skilled in the art, and available. Defendants have not shown the fact to be otherwise. As to lack of sufficient description in the applications of the claimed subject matter of the patents, the argument here is a repetition of that advanced in connection with the alleged insufficiency of disclosure of the patent specifications. For reasons already stated, there is no merit to this contention. The evidence clearly establishes that a person skilled in the art, whether reference is had to the applications or the patents, will be able, by following the teachings therein set forth, to produce the claimed compound of the '794 patent and the claimed compositions of the '302 patent. It follows, and the Court so finds, that the applications for the '794 and '302 patents were valid continuations-in-part of the '356 and '175 applications, and that the patents are entitled to their filing dates of April 10 and July 10, 1948. See General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 183, 58 S.Ct. 849, 82 L.Ed. 1273 (1938); Clark Blade & Razor Co. v. Gillette Safety Razor Co., 194 F. 421, 422 (3 Cir. 1912). The validity of the '794 patent is also attacked on the ground that it creates an excessive and unlawful monopoly. It is contended that the patentees did not invent the claimed compound, vitamin B-12, but merely recovered it, from an existing material containing it, in a more nearly pure condition than it had been in before. Defendants further contend that the patented product represents, not a newly created compound, but only a purified form of the anti-pernicious anemia factor (APAF) that had existed and was known to be present in liver, and that such being the case, the product monopoly asserted by Merck under the '794 patent, cannot legally be sustained. In other words, the compound claimed in the patent is not "new" since it existed before in the parent material, and it is not "inventive", as a product, because the concept of it was obvious. 35 U.S. C.A. §§ 101 and 103. In support of these contentions, defendants point to the work on liver done by a number of investigators, including Laland and Klem in Norway; Strandell in Sweden; Emery, Parker, Hurran and Smith in England; and Murphy in this country. Reference is also made to the commercial liver extracts of Lederle Laboratories, Inc. and Eli Lilly and Company. The work of Laland and Klem (1936), and Laland (1939), were cited to show that these scientists had effected a 200,000-fold concentration of the anti-pernicious anemia factor in liver, and that their product had some of the characteristics of vitamin B-12. But there is no indication that these men knew what it was in liver that controlled pernicious anemia, or that they had any understanding as to the chemical nature of whatever that something might be. The most refined liver fractions obtained by Laland and Klem were bright reddish-yellow or light orange-red in color, as contrasted with the red crystals of vitamin B-12. There was also a difference in chemical composition. An analysis of the Laland-Klem liver fractions showed the presence of carbon, nitrogen, hydrogen, and sulphur. Vitamin B-12 contains all of these elements except sulphur, plus phosphorus, cobalt and oxygen. The absorption maxima of the Laland-Klem fractions also differed from those of vitamin B-12, thus creating doubt as to whether the absorption observed in connection with the Laland-Klem material was due to the active [anti-pernicious] principle in the liver or to a contamination. And finally, Laland and Klem never obtained their substances in crystalline form. Strandell's paper (1935), merely reported on a number of cases treated by the author with a new liver preparation *81 called Pernami. Mention is made by Dr. Strandell that he had collaborated with Laland and Klem in experiments looking toward the isolation of "the anti-anemic principle of the liver", and he expressed the hope that this isolation would be accomplished in the near future. The work of Emery, Parker and Hurran appears to have been primarily concerned with the problem of standardization of liver extracts and not with the isolation or identification of the anti-pernicious anemia factor or factors in liver. The Emery and Parker report (1946), which makes reference to an earlier paper (1945) by Emery and Hurran, was cited to show that a further purification of the anti-pernicious anemia factor in liver had been achieved. This further purification yielded a fraction of 1.2 milligrams from 1 kilogram of liver, and was said to have proved active in human pernicious anemia on a single dose of 1 milligram. As to this fraction, however, the report stated that it had been dried from the frozen state and was shown not to have any specific ultraviolet absorption characteristics. Regarding the liver work done by Smith, suffice it to say that it was not until April 24, 1948, which was eight days after Merck's publication of its isolation of the anti-pernicious anemia factor from liver, that Smith wrote an article stating that he had prepared, from ox liver, two red pigments, both highly active in pernicious anemia. Defendants call attention to the fact that the Smith product, although not crystalline, was nevertheless "credited" by Merck as being an "isolation" of the anti-pernicious anemia factor. This statement is based on a note appearing in one of defendants' exhibits. That note hardly supports the conclusion that Merck "credited" Smith's purification of the liver fractions as an "isolation" of the anti-pernicious anemia factor. In any event, nothing like the Merck crystals eventuated from the Smith experiment. Dr. Murphy's article, "Anemia in Practice", published in 1939, contains an interesting history of the development of liver therapy in the treatment of pernicious anemia. The article describes the difficulties encountered in attempting to serve a sufficient quantity of liver in such a way as to be most effective and palatable for a patient who had an inherent dislike for it. Dr. Murphy then traces the development of liver extracts for peroral use for those patients who found it difficult to ingest whole liver. He then tells of the emergence of the highly concentrated and potent liver extracts that were suitable for parenteral administration. There can be no question but that following the Murphy-Minot discovery of whole liver therapy in 1926, much progress was made in the refinement, purification, and preparation, for commercial use, of liver extracts, which reduced substantially the dosage requirements for patients afflicted with pernicious anemia. These commercial liver extracts were available in 1947, and for some years prior thereto. However, as pointed out by Dr. Murphy in his 1939 article, the liver extracts that were prepared for parenteral administration, both in this country and abroad, varied greatly in concentration and potency, thus making it difficult to describe the dose and method of use of the available preparations. Dr. Murphy's experience was largely limited to the Lederle extracts, which were found by him to be of a high standard of potency. But it is to be noted that there were pernicious anemia patients who, when treated with the commercial liver extracts, experienced unfavorable reactions, ranging from mild to severe, including "weakness, increased pulse rate and perspiration, drop in systolic pressure, pruritis, or urticaria." Shock, and even death, sometimes occurred. In evidence in this case is a study made by Dr. Noren of Sweden in 1948, on the allergic reactions in parenteral liver therapy and vitamin B-12. Involved were 130 pernicious anemia patients, later reduced to 124, who were receiving parenteral liver treatments. Out of the reduced number, 18 were found to exhibit *82 allergic reactions to liver. It was noted that in some cases the symptoms were quite severe, while in others the allergic reaction so increased in intensity, that parenteral liver therapy had to be abandoned. Dr. Noren then tested 9 of the more serious cases with crystallized vitamin B-12, and found a complete absence of adverse reactions, thus demonstrating that those pernicious anemia patients who could not tolerate the liver therapy, could now be helped by vitamin B-12. Defendants agree that Merck's crystalline product, vitamin B-12, as claimed in the '794 patent, is more nearly pure, "by a substantial margin", than the most potent earlier concentrates of the anti-pernicious anemia factor in liver. Other advantages of the patented product over the earlier liver extracts are also admitted. But, say defendants, repeating the arguments already made, these advantages do not give rise to patentability because, in the best view of the matter, the patented product is not a newly created compound, but only a purified form of the anti-pernicious anemia factor in liver, the existence and efficacy of which, to cure anemias, has been known since 1926. Defendants have cited a number of cases which enunciate the generally recognized principles that a patent may not be awarded for a product of nature, or for a substance that is merely extracted from its parent material and purified, or for a new form of an old product. Illustrative are Ex parte Sparhawk, 64 USPQ 339; Ex parte Snell, 86 USPQ 496; Ex parte Cavallito, 89 USPQ 449; Ex parte Reed and Gunsalus, 135 USPQ 34; Ex parte Hartop, 139 USPQ 525; In re King, 107 F.2d 618, 27 CCPA 754; Application of Fisher, 307 F.2d 948, 50 CCPA 1025; General Electric Co. v. De Forest Radio Co., 28 F.2d 641 (3 Cir. 1928). De Forest is a good example of a typical "product of nature" case. It involved the Coolidge patent for "tungsten and a method of making the same for use as filaments of incandescent electric lamps and for other purposes." It appears that tungsten in its natural state as found in the earth is brittle. What Coolidge did was to invent a process to purify the natural product. Tungsten in this state, he discovered, had the characteristics of ductility and high tensile strength. The broadest product claim in the Coolidge patent was for "[s]ubstantially pure tungsten having ductility and high tensile strength." As against the patentee's assertion that he created "substantially pure tungsten", the court held he did not because the product existed in nature. As to the additional words of the claim, "having ductility and high tensile strength", the court said this was merely descriptive of the subject matter. In brief, the court found that Coolidge neither created pure tungsten, nor its characteristics. Both qualities, said the court, were created by nature. The validity of the patent was thus limited to the method Coolidge disclosed for converting the natural product into purer form. It is interesting to note, as did the court in De Forest, that Coolidge did not seek a patent for "a new composition of matter", but instead claimed as the subject matter of his patent, a product which, upon reference to the patent specification, was found to be the "tungsten of nature". It is also interesting to note that the state of the art, long before Coolidge, disclosed the use of tungsten as a filament for an incandescent lamp, and also how to make a wire of tungsten. There can be no quarrel with the holdings in De Forest and other cases cited by defendants, but they are not controlling here. Each case must be decided upon its own facts. Incidentally, no assertion is made on this branch of the case that Merck's patented composition was anticipated under 35 U.S.C.A. § 102. The date of the invention here is December 11-12, 1947, and it is clear that no single prior art patent or publication disclosed the vitamin B-12 compound claimed by the '794 patent. See Dewey & Almy Chemical Co. v. Mimex Co., 124 F.2d 986, 989 (2 Cir. 1942). Patentability rests, then, upon a determination of whether the '794 patent covers a "new and useful *83 * * * composition of matter", and, if so, whether the disclosures of the prior art, notwithstanding lack of anticipation, nonetheless negative patentability because of obviousness. The record in this case fully supports patentability when viewed in light of utility, novelty and non-obviousness of the subject matter. See in this connection the following cases: Kuehmsted v. Farbenfabriken of Elberfeld Co., 179 F. 701 (7 Cir. 1910); Union Carbide Co. v. American Carbide Co., 181 F. 104 (2 Cir. 1910); Parke-Davis & Co. v. H. K. Mulford Co., 189 F. 95 and 196 F. 496 (2 Cir. 1912); Smith, Kline & French Laboratories v. Clark & Clark, D.C., 62 F.Supp. 971, aff'd 157 F.2d 725 (3 Cir. 1946); Union Carbide & Carbon Corp. v. Stuart Laboratories, 194 F.2d 823 (3 Cir. 1952); Bristol Laboratories v. Schenley Laboratories, 117 F.Supp. 67 (S.D.Ind.1953); Charles Pfizer & Co. v. Barry-Martin Pharmaceuticals, 241 F.Supp. 191 (S.D.Fla. 1965). It cannot be seriously disputed, on this record, that the claimed compound of the '794 patent constitutes a new and useful composition of matter. It certainly was not disclosed or even suggested in or by the prior art. The prior art was liver-oriented. All efforts to isolate and identify the anti-pernicious anemia factor were directed to liver sources. The factor continued to remain unidentified and unknown. The '794 patent, of course, does not deal with liver.[9] The claimed subject matter, pure cyanocobalamin or vitamin B-12, is a red crystalline substance derived from a fermentation source. The record amply supports the conclusion that the idea to investigate fermentation materials as a possible source of the anti-pernicious anemia factor originated with the patentees, Rickes and Wood, and that it was not suggested to them by anyone else. Before Rickes and Wood made it available to the world, pure crystalline vitamin B-12, as described and claimed in the '794 patent, did not exist. No one had produced even a comparable product. The new product had such advantages over the earlier liver extracts that it not only replaced them, but became, and remains to this day, the universal treatment for pernicious anemia. The new product has completely eliminated the harmful side effects of the old liver preparations. Moreover, crystallization of the claimed compound was significant in that it established for the first time that the anti-pernicious anemia factor could be obtained in crystal form, susceptible to any desired degree of purification, and also to physical and structural determination. It also made possible standardization, by weight, of the exact dosage required by patients. Further evidence of the utility of the '794 invention from a medical standpoint may be found in defendants' own advertising brochure enclosed with each of their vitamin B-12 products, wherein it is stated, inter alia, that: "Vitamin B-12 is probably the most potent hematopoietic substance known. Since it is identical with the anti-anemia factor in liver, it is fully as effective as liver injection USP. It provides prompt and favorable response in the treatment of primary pernicious anemia. * * * No known toxic effects for oral or parenteral administered Vitamin B-12 have been reported. No chronic or cumulative toxic effects have been observed even with massive doses. There are no known contraindications. Although a very few reactions have been noted, evidence indicates that it is particularly useful in the treatment of patients sensitive to pork or beef liver extracts." In a similar vein, it was brought out on cross-examination of defendants' witness, Harry J. Konen, that in a talk given by him at a nutritional conference, he stated that he regarded the isolation by Merck *84 of the anti-pernicious anemia principle, and the research work relative thereto, as one of the most important developments in the field of nutrition from the standpoint of both basic science and scope of application, whether commercially in the feed industry or in human nutrition. The state of the prior art, as reflected by this record, does not support defendants' argument that the subject matter of the '794 patent was obvious. The proofs point in the direction of nonobviousness. No one, before Rickes and Wood, succeeded in isolating and identifying the anti-pernicious anemia factor that had theretofore been associated only with liver. The chemical nature of that factor was unknown and was the subject of many theories and speculations. No one, other than Rickes and Wood, conceived the idea that fermentation materials might be a source of the anti-pernicious anemia factor. This Court is satisfied that the patentees of the '794 patent have given to the world, for the first time, a medicine that can be used successfully in treating all patients suffering with pernicious anemia, a medicine that is subject to accurate standardization, and avoids the unfavorable reactions of the earlier liver extracts. It did not exist in nature in the form in which the patentees produced it, and nothing in the prior art either suggested or anticipated it. In considering the question of obviousness under 35 U.S.C.A. § 103, the prior art must be viewed from the point in time just prior to when the invention was made. Many things may seem obvious after they have been made, hence courts must guard against the use of hindsight. See Diamond Rubber Co. of New York v. Consolidated Tire Co., 220 U.S. 428, 435, 31 S.Ct. 444, 55 L.Ed. 527 (1911); Craft-Stone, Inc. v. Zenitherm Co., 22 F.2d 401, 402 (3 Cir. 1927); Marvel Specialty Company v. Bell Hosiery Mills, Inc., 330 F.2d 164, 172 (4 Cir. 1964); Monroe Auto Equipment Co. v. Heckethorn Mnfg. & Sup. Co., 332 F.2d 406, 412 (6 Cir. 1964). The difficulty of determining subjectively at some removed time whether a particular invention would have been obvious to a person of ordinary skill in the art, invites a consideration of objective criteria of obviousness. See Reiner v. I. Leon Co., 285 F.2d 501 (2 Cir. 1960). As was stated by Mr. Justice Clark in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1965): "Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy." In the case at bar, the '794 patented product met with great commercial success and acceptance. While these factors alone do not give rise to patentability, if none in fact exists, yet it is permissible to take them into consideration on the issue of obviousness or nonobviousness. A Merck witness testified that the first sale of crystalline vitamin B-12 by Merck was made in 1949, and consisted of 7 grams of that product, each gram of which was sold for $12,500.00. All 7 grams were purchased by Merck competitors, including 2 grams by Eli Lilly & Company. Sales of Merck products using crystalline vitamin B-12 cyanocobalamin, of U.S.P. purity, for the years 1948 through 1964, amounted to $79,575,000.00. It is apparent that vitamin B-12 fulfilled a long felt need for a medicine of great benefit to mankind, a medicine that could now be produced in adequate quantities by fermentation processes under man controlled conditions. It follows, and the Court so finds, that the single claim of the '794 patent is valid in all respects. Defendants have *85 failed by "convincing evidence" to overcome the presumption of validity to which the patent is entitled under 35 U.S. C.A. § 282. See Moon v. Cabot Shops, Inc., 270 F.2d 539 (9 Cir. 1959); King-Seeley Thermos Co. v. Tastee Freeze Industries, 357 F.2d 875, 879 (7 Cir. 1966). The three product claims of the '302 patent were involved in earlier litigation. In Merck & Co. v. Olin Mathieson Chemical Corp., 152 F.Supp. 690 (W.D.Va. 1957), the District Court found the claims to be invalid as (1) covering a "product of nature", and (2) for "lack of invention". On appeal this decision was reversed. The Court of Appeals, in 253 F.2d 156 (4 Cir. 1958) found the claims to be valid, stating: "* * * we think the invention is meritorious, the product claims of the patent valid and entitled to a liberal construction." The case was then remanded for further proceedings consistent with the opinion filed by the appellate court. Thereafter, the defendant petitioned the Court of Appeals for a rehearing on the ground that "[t]he defense of double patenting [as against the '794 patent], pleaded and proved in the District Court, was not passed upon below * * *." The rehearing was denied, but the court amended its earlier decree "to permit appropriate consideration by the said District Court of any defense except the defense of lack of invention considered and discussed in the opinion of this Court." In the retrial of the case on remand, the defendant urged the defenses of "double patenting", "excessive monopoly", and "non-infringement". Before a decision was reached on these issues, the case was settled by the taking of a license by the defendant, and the entry of a consent decree. Defendants, in the instant case, gloss over the record in Olin Mathieson, and insist that "new evidence", and "new connecting evidence", of "crucial force", that was not before the courts in the earlier case, establishes the invalidity of the '302 patent. It is said that on such different evidence as is claimed to be here present, there would be no lack of comity in coming to a conclusion contrary to that reached by the Court of Appeals in Olin Mathieson. That decision is, of course, entitled to great weight on the matters thereby decided, but it has no binding force here. This Court is under a duty to make an independent study of the record in this case and arrive at an independent judgment on the merits. See Standard Brands v. National Grain Yeast Corp., 101 F.2d 814 (3 Cir. 1939). Such a study and determination, in light of the alleged "new evidence", has been made, and for the reasons hereinafter stated, this Court concludes that the product claims of the '302 patent are valid. The '302 patent, as has already been noted, is directed to vitamin B-12 active compositions derived from the fermentation of selected microorganisms. As was stated by the Court of Appeals in Olin Mathieson, the product claims of this patent "* * * do not reach pure, crystalline vitamin B-12 [the '794 product], for they are restricted to compositions having a maximum LLD activity which is less than that of the pure substance. The claims do not cover vitamin B-12 compositions derived from liver or any source other than the specified fermentates. Nor do the claims extend to compositions of such low activity as to be of no commercial or therapeutic value. They do cover B-12 active compositions derived from the specified fermentates, which, beyond question, are of very great therapeutic and commercial importance. They are cheaply and abundantly produced and all toxic and harmful substances eliminated without the necessity of isolating crystalline vitamin B-12." The contention made by defendants that the '302 patent is invalid because Merck is not entitled, under 35 U.S.C.A. § 120, to invoke the effective filing dates of the 1948 "parent" applications of April 10 and July 10, 1948, heretofore considered also with respect to the '794 patent, has been considered and decided adversely to defendants. The present attacks against the validity of the '302 patent are: (1) lack of novelty over the prior *86 art because of the known existence of earlier concentrates of B-12 active material, of fermentation origin, having APF or APAF activity; (2) obviousness of resorting to a fermentation-recovery procedure as a means of obtaining B-12 active compositions from such earlier concentrates, as exemplified by a number of episodes; (3) "late claiming"; and (4) "double patenting". In order to more fully understand the foregoing arguments (1) and (2), the work of investigators in the field of animal husbandry must be considered. Reference has already been made in footnote 4 of this opinion to the need that developed to find a suitable substitute for the unknown factor in poultry feeds that hens required for growth, egg hatchability, and viability of the chicks hatched. Research in that field indicated the presence of some substances in cow manure, dried cow rumen contents, fish meal, whey, liver meal, alfalfa, residues from alcohol fermentations, distiller's solubles, hen feces, and the like, that stimulated the growth of chicks. But there was no single identification of the substance or substances in these so-called chick growth factors that was responsible for their growth promoting properties. To this day, many of these growth factors remain unknown. Others, like the cow manure and chicken feces factors were never isolated in any identifiable form. It is also to be noted that the substances which provided the animal protein factor (APF) in poultry feeds, were in relative short supply and expensive, adding considerably to the cost of poultry raising. Moreover, these substances were open to the objection that they contained comparatively small and varying amounts of the APF. And, of course, none of this material was used for treating human anemias. This is to be contrasted with the more concentrated, standardized, and less expensive source of the vitamin B-12 active compositions of the '302 patent, which have proved of value not only as animal feed supplements, but also as being useful in the treatment of nutritional diseases. It will be recalled that the invention date of the '302 patent is September 11-16, 1947. It was then, for the first time, that recovery from a fermentation source, of vitamin B-12 active compositions, having more than 440 LLD units per milligram, was obtained. Dr. Woodruff testified, and it was not disputed, that a composition having a potency above 440 units per milligram, is free from any undesirable toxic material and is capable of successfully treating disease, promoting growth, and enhancing the well-being of animals and humans. But defendants point to the prior publications on the liver extracts. As to these, defendants call attention to the fact that prior to September 16, 1947, it was publicly known that liver extracts were B-12 active compositions, and of fermentation origin. They hazard a guess that if the Shorb assay had then been available, the B-12 active compositions of liver extracts would have shown LLD values comparable to those of the '302 product claims. The gist of the argument here is that these extracts were in the public domain before 1947, and that regardless of the origin and past history of the B-12 active content of said liver extracts, the product claims of the '302 patent represent nothing more than a new way of producing an old product; hence, patentability is lacking. What has been said about the liver extracts in connection with the '794 patent is equally applicable in the case of the less pure products of the '302 patent. The '302 patented compositions are not "old products". As was stated by the Court of Appeals in Olin Mathieson, at pp. 162, 163 of 253 F.2d: "Until the patentees produced them, there were no such B-12 active compositions. No one had produced even a comparable product. The active substance was unidentified and unknown. The new product, not just the method, had such advantageous characteristics as to replace the liver products. What was produced was, in no sense, an old product." *87 Except for some testimony by Dr. Rubin, Dr. Green, and Mr. Konen, defendants' case, in the main, rested on a mass of documentary evidence, including a large number of prior art publications and patents, plus certain depositions that had been taken in Olin Mathieson, and in another case in this District, Merck & Co., Inc. v. Anheuser-Busch, Inc., Civil Action No. 441-57. This latter case, following the pattern of Olin Mathieson, was settled by the defendant therein taking a license, and the eventual entry of a consent decree which recognized the statutory validity of the '302 patent. No useful purpose will be served by a detailed analysis of the mass of material put in evidence by defendants. All of it has been examined by the Court, and reference will be made only to those parts deemed relevant. In addition to the work done on liver extracts, defendants also stress the pre-1947 experiments conducted by a number of investigators who were interested in finding a suitable animal protein factor (APF) for poultry feeds, to take the place of high quality protein supplements of animal origin. As previously mentioned, substances containing the APF were in short supply and expensive. Dr. Hammond, one of the early investigators, found that dried cow manure and dried rumen contents, contained a chick growth factor activity of animal protein. Two other scientists, Dr. Rubin and Dr. Bird, followed through on this work and prepared more concentrated extracts of cow manure. In an article published by Dr. Bird in "The Yearbook of Agriculture", on June 18, 1947, the author stated "* * * that the growth-promoting effect of cow manure was due to an unknown factor in it, not to the presence of any known vitamin, and * * * that this mysterious factor is synthesized in the digestive tract of mature chickens and is present in their excrement in about the same concentration as in cow manure. Hence, the rumen is not essential to its synthesis." This leads to a consideration of hen feces as an alternative natural material having the same chick growth activity as an animal protein such as the cow manure extract. In late 1946, Dr. McGinnis conducted a fermentation of hen feces which to him demonstrated that the chick growth activity was produced by incubation of the droppings after they were voided, and not materially in the chicken's intestines, as supposed by Bird and Rubin. The record also cites certain episodes, in which groups interested in producing a feed supplement having APF activity, resorted to fermentation and recovery to do so, thus confirming, say defendants, the obviousness of doing that on the basis of what was known before September 16, 1947, the invention date of the '302 patent. In a word, the argument is, that prior to that date, liver extracts, cow manure extracts, and hen feces extracts, were concentrates of vitamin B-12, produced by bacterial fermentation, and that the isolation thereof by a fermentation-recovery procedure was obvious in light of what was then known. But what was done by the investigators in this field is a far cry from that which was accomplished by the patentees in this case. In no sense do the mentioned extracts approach the established superiority of the patented compositions of the '302 patent. As found in the "natural fermentates" of liver, cow manure, and hen feces, the APF activity contained therein had no utility, therapeutically or commercially. It appears from Dr. Rubin's testimony that in his work with Dr. Bird, no consideration whatsoever was given to the use of their products for therapeutic purposes. Moreover, Dr. Rubin testified that he was not able to isolate from the materials used, either the "* * * cow manure factor or the hen feces factor". He further stated that neither of these were sold as animal feed supplements, and postulated that "* * * it would be very difficult to accomplish [this] unless it was [authorized] by an act of Congress." And Dr. Bird, a co-worker with Dr. Rubin, in a published article dated June 18, 1947, stated that "* * * the use of cow manure as a source of vitamins is not yet *88 advised by the Department [of Agriculture], pending further research. We must know more about the possibility of spreading disease." Not much time need be spent on the so-called "McGinnis-Lewis", "Lederle", "LeMense", and "Schenley (deBecze)" episodes. It was not until Dr. McGinnis met Dr. Lewis on December 18, 1947, that discussions took place concerning the "possibilities" of finding microorganisms to synthesize the unidentified chick growth factor in hen feces. And it was not until January 22, 1948, that these gentlemen began testing fermentation products for the presence of that unidentified chick growth factor. These dates, of course, are subsequent to the invention dates of the '794 and '302 patents, and it was not until long after the April 16, 1948 publications by Merck announcing the discovery of vitamin B-12, that McGinnis, Lewis, and others, filed their application which resulted in the issuance of Patent No. 2,576,932 for a "Fermentation Process for Production of Vitamin B-12". As to the "Lederle" episode, it appears that on September 19, 1947, Drs. Jukes, Petty and Stokstad, initiated a project to study the possible production of the "animal protein factor" by means of fermentation. There is no indication that these researchers were interested at the time with the isolation or identification of the anti-pernicious anemia factor. See the Subbarow report mentioned earlier in this opinion. The object of these Lederle men was to extract "* * * various micro-organisms from chicken and cow manure to be used in the fermentation", and that the "* * * micro-organisms would be used in the fermentation for production of the animal protein factor." These investigations, as well as an article by Dr. Stokstad and others, entitled "Activity of Microbial Animal Protein Factor Concentrates in Pernicious Anemia", and Patent No. 2,515,135, on "Animal Nutrition", issued to Dr. Petty on July 11, 1950, on an application filed June 8, 1945, were all later in point of time to the invention date of the '302 patent (September 11-16, 1947) and subsequent to the Merck announcement of its discovery of vitamin B-12 on April 16, 1948. The Stokstad article mentions two Lederle concentrates that were used successfully on pernicious anemia patients. However, there is no evidence as to when these concentrates were used, nor was there a finding that the animal growth factor in liver and bacterial substances were identical with the "* * * classic antipernicious factor". Moreover, the authors of the Stokstad article could not decide whether their substance was identical with the APAF or "* * * the recently isolated vitamin B-12 shown to be active in pernicious anemia * * *." The "LeMense" episode is based on an application filed by Elmer H. LeMense on April 7, 1948, for a patent covering ingredients for poultry and animal feeds. A second application filed December 4, 1951, resulted in the issuance on March 13, 1956, of a patent for "Producing a Growth Promoting Factor". The invention related to ingredients for poultry and animal feeds and to a process for preparing such ingredients. Defendants cite this patent as a disclosure of a process for making an APF active product by fermentation and recovery, using certain strains of microorganisms. LeMense's first application was directed only to an "unidentified" chick growth factor and made no mention of pernicious anemia or anti-pericious anemia products. It was not until December 4, 1951, long after the Merck announcements and sale of vitamin B-12, that LeMense filed his second application which resulted in the issuance of Patent No. 2,738,274, in which reference is made to vitamin B-12. The "Schenley" episode involved principally the work of Dr. deBecze and Mr. Konen. Dr. deBecze did not testify as a witness for defendants at the trial, but his voluminous depositions and many related exhibits were made part of the record. In his deposition, Dr. deBecze, Manager of Research and Distillery Control for Schenley Distillers, Inc., testified *89 concerning his work during the period 1945-1949 covering the fermentation enrichment of distillery wastes for use as animal feed supplements. This work, which he referred to as a "3N Soludri" process, resulted in two deBecze patents[10] now owned by defendants. Before trial, defendants singled out the deBecze patents, and deBecze himself made actual tests to demonstrate and reproduce a typical process and product made in accordance with the teachings of said patents. Defendants arranged for Dr. deBecze to run a typical fermentation process test in accordance with Example 5 of one of his patents, No. 2,636,823. This test took several days to run and counsel for both sides were present during the latter part of the test. The test procedures were supervised by defendants, who also selected the organisms used by Dr. deBecze. Samples of the deBecze tests were submitted to an independent testing organization of defendants' own choosing, with the request that said testing organization run vitamin B-12 assays on the samples submitted. The result of these tests were not offered in evidence by defendants, but the Court, on Merck's offer, and over defendants' objections, permitted them to become part of the record. An analysis of the reports of the tests, and the uncontradicted testimony of Dr. Woodruff, indicated that the vitamin B-12 activity of the deBecze material was less than 1.7 LLD units per milligram, and useless in light of the LLD content of the product claims of the '302 patent. Harry Konen, a Schenley employee during the 1945-1947 period (and whose testimony regarding the value of Merck's isolation of the anti-pernicious anemia factor in liver has already been mentioned in this opinion), was the person responsible for evaluating the deBecze work "* * * from the standpoint of feeding value", which was done "* * * through the use of chicks and white rats." The results of Konen's evaluation of the deBecze process was not conclusive, and was challenged in another contemporary Schenley report dated February 5, 1947. Konen testified that he was never successful in isolating the deBecze factor, which, in the deBecze patent (No. 2,636,823), was stated to be "* * * of an as yet unidentified nature * * *". In any event, sometime in 1947, Schenley disbanded the entire deBecze research program in animal feed supplements and never marketed any of the deBecze material. Subsequently, Schenley purchased its requirements of B-12 active products from Merck. Upon a consideration of the full record in this case, including that alleged not to have been before the court in Olin Mathieson, this Court concludes, and so finds, that the product claims of the '302 patent are in all respects valid. This patent, as does the '794 patent, enjoys the statutory presumption of validity which defendants have been unable to overcome. Also, that which has been said with respect to hindsight on the issue of obviousness in regard to the '794 patent applies here with equal force. And on the question of commercial success and acceptance as factors bearing on patentability, the record shows sales running into the millions of dollars, the total dollar sales volume of Merck's vitamin B-12 and vitamin B-12 active compositions, in the years 1948 through 1964, amounting to $121,727,000.00. The evidence in this case fully supports the conclusion reached by the Court of *90 Appeals in Olin Mathieson (253 F.2d) at page 164, that: "The compositions of the patent ['302] here have all of the novelty and utility required by the Act for patentability. They never existed before; there was nothing comparable to them. If we regard them as a purification of the active principle in natural fermentates, the natural fermentates are quite useless, while the patented compositions are of great medicinal and commercial value. The step from complete uselessness to great and perfected utility is a long one. That step is no mere advance in the degree of purity of a known product. From the natural fermentates, which, for this purpose, were wholly useless and were not known to contain the desired activity in even the slightest degree, products of great therapeutic and commercial worth have been developed. The new products are not the same as the old, but new and useful compositions entitled to the protection of the patent." See the previously cited cases of Smith, Kline & French Laboratories v. Clark & Clark, 157 F.2d 725, 729 (3 Cir. 1946); Kuehmsted v. Farbenfabriken of Elberfeld Co., 179 F. 701 (7 Cir. 1910). And Cf. American Wood Paper Company v. Fibre Disintegrating Company, 23 Wall. 566, 90 U.S. 566, 23 L.Ed. 31 (1874); Cochrane v. Badische Anilin & Soda Fabrik, 111 U.S. 293, 4 S.Ct. 455, 28 L. Ed. 433 (1883). The '302 patent is also alleged to be invalid for the reason that its broad claims were belatedly presented in December, 1952, after others had made the subject publicly known and had it in production and on sale. The short answer to this is found in the sufficiency of the "parent" applications of April 10 and July 10, 1948. Defendants cite the case of Muncie Gear Works, Inc. v. Outboard Marine and Mnfg. Co., 315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171 (1942). That case is predicated on the requirements of 35 U.S.C.A. § 102. Another case, Schriber-Schroth Co. v. Cleveland Trust Co., 305 U.S. 47, 59 S.Ct. 8, 83 L.Ed. 34 (1938), is based on lack of compliance with the disclosure provisions of 35 U.S. C.A. § 112. These cases are distinguishable. The evidence in the case at bar fully supports the sufficiency of the 1948 "parent" applications under the cited sections of the Act, hence there is no basis to support the "late claiming" charge. Defendants' "double patenting" defense has no merit. It is elementary that one invention can only support one patent. See Miller v. Eagle Manufacturing Company, 151 U.S. 186, 14 S.Ct. 310, 38 L.Ed. 121 (1894). The main objections to double patenting are obvious: (1) possible extension of the patent monopoly which would occur if two patents for the same invention did not expire at the same time; and (2) possible double harassment of infringers. The argument here is that the claims of the '302 and '794 patents present no difference in substance and are of the same scope. This contention is tied in with another patent, No. 2,703,303,[11] also issued to Rickes and Wood. Ignoring the '303 patent for the moment, and considering defendants' claim of substantial identity of subject matter of the '302 and '794 patents, it is clear from this record that the challenged patents are not invalid for double patenting. The '794 patent is for a pure crystalline substance, cyanocobalamin having specified characteristics, and possessing great therapeutic value for the treatment of pernicious anemia. The less pure product claims are directed to vitamin B-12 active compositions comprising *91 elaboration products recovered from the fermentation of selected groups of microorganisms having potencies between the stated limits of the claims, which are valuable for animal feed supplements and for the treatment of nutritional diseases. There is a substantial difference in the inventions covered by the patents in question, a complete lack of identity, which makes the defense of double patenting inapplicable. See Jacquard Knitting Machine Co. v. Ordinance Gauge Co., 213 F.2d 503, 507 (3 Cir. 1954); and Cf. Plax Corporation v. Precision Extruders, 239 F.2d 792, 796 (3 Cir. 1957); Pierce v. Allen B. Du Mont Laboratories, Inc., 297 F.2d 323 (3 Cir. 1961). As in the case of the '794 patent, the Court finds that the product claims of the '302 patent are in all respects valid. Some of the arguments advanced by defendants against the validity of the product claims of the '302 patent, are apparently also intended to prove the invalidity of the process claims of said patent here in issue, namely, process claims 4, 5, 6, 11 and 12. The Court has so considered the arguments, and finds that the process claims of the '302 patent are invalid, whether considered from the viewpoint of the prior art or on the basis of obviousness. The invalidity of a process claim does not, of course, affect the validity of a product claim that per se, meets the statutory tests of patentability. See Benger Laboratories, Limited v. R. K. Laros Company, 209 F.Supp. 639, aff'd 317 F.2d 455 (3 Cir. 1963); Application of Larsen, 292 F.2d 531, 49 CC PA 711 (1961). Benger involved a number of product and process claims relating to a therapeutic preparation for the treatment of iron deficiency anemia. The validity of the product claims was upheld, while the process claims were rejected. Representative of the product claims was one which read as follows: "A composition comprising a substantially monionic complex of ferric hydroxide with a dextran having an average intrinsic viscosity at 25°C. of about 0.025 to about 0.25, said complex being stable in contact with water." A typical process claim related to: "The process of preparing a substantially non-ionic collodial ferric hydroxide-dextran complex which comprises combining, in contact with water, a dextran having an average intrinsic viscosity at 25°C. of about 0.025 to about 0.25 with ferric hydroxide, said ferric hydroxide being formed in situ in contact with the dextran by a double decomposition reaction between an ionizable ferric salt and an alkali base." It is interesting to compare the similarity in principle between the product and process claims in Benger, with those contained in the '302 patent. Among the defenses asserted in Benger, many of which are also present in the case at bar, was one contending the Benger claims invalid as lacking in invention in view of the prior art. As to this contention the court said, at page 643 of 209 F.Supp.: "To appreciate the reason why the process is an obvious one while the product is not, one must have clearly in mind the objective of the invention claimed respectively in the process and product claims. The process claims do not even suggest anything of a therapeutic nature. The desired end result of the process was simply the production of a stabilized ferric hydroxide solution. That the admittedly old steps of the process would result in obtaining such a solution if dextran were the carbohydrate used could not but have been obvious to a skilled worker in the field, but that is all that was obvious. What was not obvious was that the solution produced would be intramuscularly injectable, and the discovery that it would have this unexpected and unpredictable property qualifies it as patentable. In other words, all that the process was aimed at was the creation of a certain composition of matter and, that having been accomplished by an obvious method, the fact that the finished product had a new and unexpected *92 property does not make the process patentable." The court in Benger, cited with approval, the principle enunciated in Larsen, supra, a case also involving a therapeutic compound. In Larsen, the court said "* * * it is clear * * * that the allowance (by the Patent Office) of the claims to the compounds was based on the fact that they possessed unique, and presumably unexpected properties. * * * Under these circumstances, however, the inventive concept is that of the compounds themselves. When they have been conceived, the processes by which they may be prepared may or may not be obvious. If, as is the case here, such processes, given the idea of the compound, are obvious then it is apparent that the invention resides in the compounds per se and is not properly defined as a process." In principle, the quoted language appears to be particularly appropriate when considered in relation to the '302 process claims. The product claims of the patent deal both with a product and source thereof unknown to the prior art. But the process claims all speak in terms of "fermentation", "extraction", and "recovery", all of which are manipulations known to and practiced by the trained chemist or microbiologist. The fermenting of an aqueous nutrient medium under submerged aerated conditions is nothing new. The fact that some known and available organisms require oxygen for growth (aerobic) while others (anaerobic) do not, is also known to the person skilled in the art. And the same is true with regard to the various temperatures, pressures, and acid levels of the fermenting material, as well as the nutrient medium used to promote growth of the selected organism. What is involved here is not "invention", but rather technical knowledge that does not rise above ordinary steps of chemical experimentation. The "recovery" steps of the patent do not describe any new or unobvious manipulations. Elutions, chromatographics, fractionations, and extractions, are all steps and procedures known to the skilled person, and used by him when attempting to solve a specific problem. The prior art in this case, considered as a whole satisfies the Court that the process claims of the '302 patent are not inventive in the sense of the patent law. See the 1935 work of Dakin and West in the Subbarow Report, and the 1939 work of Laland and Klem. The discovery by the patentees of a new product and source of same, is rewarded by the 3 product claims of the '302 patent. Because the Court has found the '302 process claims of the patent invalid, defendants' claim of double patenting as against the '303 patent need not be considered. It remains to consider whether defendants' products infringe the single product claim of the '794 patent and the three product claims of the '302 patent. The burden of proving infringement rests upon the party asserting it. See General Chemical Co. v. Selden Co., 60 F.2d 144 (W.D.Pa.1932). The determination of the problem in this case is simplified because defendants agree that the acts that are charged to infringe are "admitted" as acts done, and that there would be infringement by the acts accused, in relation to the several products accused, "if the patents [are] valid in the broad literal scope of their claims." The Court finds that the product claims of the '794 and '302 patents are commensurate with the scope of the inventions disclosed thereby, and that the accused products do infringe the product claims of both patents. The evidence clearly established that defendants' crystalline products, as exemplified by exhibits P-28, P-29, P-30 and P-31, embodied each and every element and feature of the '794 product claim. For example, the chemical analysis showed the same elements in both; the '794 compound is a red crystalline substance, so is that of defendants; the '794 product is soluble in water, methyl and ethyl alcohol and phenol; ditto, as to defendants' products; both are insoluble in acetone, ether and chloroform; both exhibit strong absorption maxima of the same range; and the L.L.D. activity of *93 the '794 product of "about 11,000,000 L. L.D. units per milligram", was matched by comparable figures ranging from 10,300,000 to 11,500,000 L.L.D. units per milligram in the accused products. These vitamin B-12 crystals produced by defendants are capable of being dissolved in liquid form, as evidenced by exhibit P-54, and of again being converted into crystal form without having any effect on their therapeutic value. Any claim of non-infringement based on suspension or temporary dissolution in a liquid solution is of no avail to defendants. The accused product is the same, bearing the label "Vitamin B-12 Cyanocobalamin Injection USP". The change in form, in the manner indicated, does not avoid infringement. See Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950); Smith v. Snow, 294 U.S. 1, 55 S.Ct. 279, 79 L.Ed. 721 (1935); Tilghmam v. Proctor, 102 U.S. 707, 26 L.Ed. 279 (1881); Flintkote Co. v. National Asbestos Mfg. Co., 52 F.2d 719 (3 Cir. 1931); Parke-Davis & Co. v. H. K. Mulford Co., 189 F. 95 (C.C.1911). Just as the evidence and exhibits P-28, P-29, P-30 and P-31, established infringement of the single product claim of the '794 patent, so, too, in relation to the product claims of the '302 patent, the evidence and exhibits P-32, P-33 and P-34, established infringement of the '302 claims. P-33 and P-34, the so-called "feed grade" materials, and P-32, the "liquid concentrate", were all shown to be B-12 active compositions, comprising recovered elaboration products of the fermentation of a vitamin B-12 activity producing strain of Fungi, selected from the class Schizomycetes, namely, Propionibacterium shermanii, with L.L.D. units per milligram well in excess of those specified in the product claims of the patent, but less than the maximum stated in those claims. At the trial, defendants stressed the fact that the microorganism used by them, Propionibacterium shermanii, was not one specifically listed in the '302 patent. But the evidence clearly established that said organism falls within the class of Schizomycetes, which is specifically named in the '302 product claims. Moreover, the Court was not too impressed with the testimony of defendants' microbiologist, Dr. Green, concerning the differences between the B-12 production activity of the two organisms, nor with his explanation of growth capacity under aerobic or anaerobic or "microaerophilic" conditions. For the reasons stated in this opinion, the Court finds that the single claim of the '794 patent and the three product claims of the '302 patent are valid, and that the same have been infringed by defendants. As to the relief sought, Merck is entitled to a permanent injunction, enjoining defendants, the officers of the corporate defendants, their agents, servants, employees and attorneys, and those in active concert or participation with them who receive actual notice of the Court's injunction order, by personal service or otherwise, from: (a) Manufacturing or selling any of defendants' crystalline vitamin B-12 products, as exemplified by exhibits P-28, P-29, P-30 and P-31, or using said pure crystalline vitamin B-12 products in the manufacture of defendants' "Vitamin B-12 Cyanocobalamin Injection USP" material, as exemplified by exhibit P-54, or selling the pure vitamin B-12 component of said injection material, as exemplified by said exhibit P-54; (b) Manufacturing, selling, or using any other vitamin B-12 product or products, embodying the single claim of the '794 patent; (c) Manufacturing, selling, or using defendants' liquid concentrate vitamin B-12 active compositions, as exemplified by exhibit P-32, or defendants' feed-grain vitamin B-12 active compositions, as exemplified by exhibits P-33 and P-34, or any other vitamin B-12 active compositions embodying the inventions of the products claims 1, 2 and 3, of the '302 patent; (d) Otherwise infringing the single claim of the '794 patent or any of the product claims of the '302 patent. *94 Said injunctive order shall also contain a provision for an accounting against all defendants, damages, and for the allowance of a reasonable counsel fee. With respect to damages, decision as to whether the same shall be increased as permitted by 35 U.S.C.A. § 284, is reserved until after said damages are assessed. Said injunctive order shall also include a provision dismissing defendants' counterclaims challenging the validity of the '794 and '302 patents, and denying the infringement thereof. This opinion shall constitute findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Counsel for Merck, on notice to counsel for defendants, will please submit an appropriate order. NOTES [1] By memorandum decision filed in this action on February 26, 1963, it was determined that Arroyo was completely dominated and controlled by Sidney and Randolph Chasman, and that for the purpose of venue, Arroyo could be considered as having a regular and established place of business in this judicial district. [2] Pernicious anemia was first recognized as a clinical entity in 1849 by Addison. The disease has been defined as "[a] severe, often fatal, form of anemia, characterized by a progressive decrease in the number of red blood corpuscles, and associated with pallor, muscular weakness, shortness of breath, and disturbances of the gastrointestinal and nervous systems." Webster's New International Dictionary, Unabridged, Second Edition. [3] The claimed compound was classified as a "vitamin" and called a "B" vitamin because it was soluble in water. It was assigned the number "12" because all prior numbers had been preempted. "B" vitamins differ in chemical composition, structure, and function. Vitamin B-12 is now known as cyanocobalamin, and both terms are used synonymously in the Pharmacopeia of the United States. The standard of purity for cyanocobalamin as set forth in that compendium, is not less than 95%, calculated on a dried basis. The references to 2780 Å., 3610 Å. and 5500 Å. in the single claim of the '794 patent relate to Angstrom units, which are used in measuring and expressing the length of light waves. The "L.L.D. activity" mentioned in said claim is a measure of the rate of growth of the microorganism Lactobacillus lactis Dorner. The claimed vitamin B-12 product has an assigned value of about 11 million L.L.D. units per milligram. [4] It had been known for many years that poultry feeds composed primarily of plant materials such as cereal grains, soybean meal, alfalfa, and similar products, were deficient in some factor, characterized as the "animal protein factor" (APF), that was needed to promote the growth of chicks and reduce their mortality. Commercial producers of poultry feeds supplied this essential factor by adding to their feeds substances with known APF activity, such as meat by-products, liver meal, fish meal, fish solubles, and the like. It is to be noted that the '302 patent, inter alia, speaks in terms of the need "to find a more concentrated, standardized, and less expensive source of this important [APF] dietary constituent." [5] As used in the product claims 1, 2 and 3, the term "elaboration products" is said to indicate the composition or "substance that is produced by a microorganism as a result of growth of that microorganism upon some normal footstuff or nutrient material." A "recovered" elaboration product is such a product that is obtained by manipulation carried out by man. It has already been noted that the product claims of the '302 patent all recite that the recovered elaboration products therein mentioned have an L.L.D. activity of "less than 11 million L.L.D. units per milligram", whereas the Vitamin B-12 compound claimed in the '794 patent has an L.L.D. activity of "about 11 million L.L.D. units per milligram." [6] An L.L.D. unit is basically established by measuring the amount of acid produced by the organism Lactobacillus lactis Dorner. In practice this is done by relating the amount of acid produced in a test system with the amount of acid produced in a standard system. Determination of the L.L.D. units is thus made with reference to the standard. [7] These values were obtained from the eluates recovered after elution operations on samples of activated charcoal. Some samples of this activated charcoal had grisein adsorbed thereon. These were called "rich" Norit. Other samples of the activated charcoal from which the adsorbed grisein had been largely removed, were called "spent" Norit. Elutions, with various solvents, were first conducted on the "rich" Norit. The potency of the material eluted by this operation assayed from about 45 to 540 L.L.D. units per milligram. Elutions were then conducted on the "spent" Norit with acetone and ethanol. The material eluted in this manner, and from this source, assayed from 514 to greater than 1200 L.L.D. units per milligram. Merck claims that these were the first activities of 440 L.L. D. units per milligram, or better, recovered from any fermentation product. [8] A countercurrent distribution procedure may be employed to determine purity or to purify impure materials. One of the charges levelled against the '794 patent is that said patent does not describe a countercurrent distribution or other purification procedure. However, such would seem to be unnecessary in light of the quality of the crystals produced by Rickes without the use of a countercurrent distribution, and confirmation of the purity of the crystals by the use of that procedure by Dr. Wolf. [9] It has already been noted that red crystals, identical with those obtained from fermentation on December 11-12, 1947, were also obtained from liver, by Merck personnel, about one week later. [10] These patents are No. 2,636,823, issued April 28, 1953 on an application, Serial No. 785,187, filed November 10, 1947; and No. 2,626,868, issued January 27, 1953, on an application filed June 16, 1948, which was a continuation-in-part of application '187. The invention of the '823 patent "* * * relates to the production of certain growth factors or growth materials, by treating aqueous nutrient media with micro-organisms which primarily comprise the bacteria of the colon-Aerobacter group of the Tribe-Eschericheae." The invention of the '868 patent "* * * relates to the production of certain growth factors or growth materials, by treating aqueous nutrient media with various micro-organisms." [11] The '303 patent was issued to Rickes and Wood March 1, 1955, on an application filed on February 25, 1950, as continuations-in-part of the "parent" 1948 applications filed on April 10 and July 10, 1948. The invention of the '303 patent was for the production of L.L.D. active substances by streptomyces, and contained 9 process claims for the production of L.L.D. active substances and vitamin B-12 active compositions, relating principally to the animal protein factor (APF) concentrates for use as feed supplements.

813 F.2d 1244 259 U.S.App.D.C. 123 UNITED STATES of Americav.George SCARBOROUGH, Appellant. No. 86-3035. United States Court of Appeals,District of Columbia Circuit. Argued Jan. 16, 1987.Decided March 17, 1987. Appeal from the United States District Court for the District of Columbia (Criminal No. 85-00416-01). Douglas J. Behr, Washington, D.C. (Appointed by this Court) for appellant. Richard G. Taranto, Atty., Dept. of Justice, with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Eric B. Marcy, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee. Before RUTH BADER GINSBURG, WILLIAMS and DONALD GINSBURG, Circuit Judges. Opinion PER CURIAM. PER CURIAM: 1 Appellant George Scarborough was convicted after a jury trial in the District Court of eight counts arising from fraudulent dealings with two banks. The convictions involved four criminal statutes: 18 U.S.C. Sec. 1014 (false statements made to obtain a bank loan); 18 U.S.C. Sec. 1344 (bank fraud); 18 U.S.C. Sec. 2314 (interstate transportation of stolen property); and 22 D.C.Code Secs. 3811, 3812(a) (theft). On appeal to this court, Scarborough challenges his convictions on several grounds. We have reviewed each of Scarborough's challenges and find all of them insubstantial. Furthermore, we conclude that only one of his objections raises a question without published precedent in this circuit. We therefore confine discussion of our determination to that issue. See D.C.Cir.Rule 13(c). 2 * Before setting forth the grounds for Scarborough's appeal, we briefly review the facts of the case. The relevant background begins in 1983, when Scarborough contracted with Charles and Fleur Bresler to purchase a house in Chevy Chase, Maryland, and presented fictitious income tax returns in order to obtain financing from the sellers. Despite having been instructed to provide certified funds for the down payment, at the closing Scarborough presented the title company with a personal check and promised to return the next day with a certified instrument. He never returned, and his personal check was returned for insufficient funds. Because the closing was never completed, legal title remained with the Breslers. 3 Scarborough's convictions arise from two instances of bank fraud in which his claims with regard to the ownership of the Chevy Chase house are central. In January 1985, when he opened two accounts there, Scarborough submitted false business and personal information to First American Bank in Washington, D.C. In addition to claiming 1981 income of more than $500,000 and a net worth of $1.5 million, he told bank officials that he owned the house in Chevy Chase, an assertion that was to form the basis for his conviction for violating 18 U.S.C. Sec. 1014. Scarborough wrote numerous bad checks on the accounts, resulting in overdrafts totaling $11,500, which the bank later agreed to turn into a loan for $12,000. 4 The second bank fraud was committed in April 1985. This time Scarborough obtained a loan for $25,000 by submitting false financial information to the Industrial Bank of Washington in Washington, D.C., and by providing a trust deed on the Chevy Chase house as security. Scarborough obtained part of the loan proceeds in the form of cashier's checks. One of these checks, written to Charles Bresler in partial payment of the price of the Chevy Chase house, was deposited in Bresler's bank in the District of Columbia but then traveled to the Federal Reserve Bank in Maryland in the normal course of the check clearing process. II 5 On appeal, Scarborough raises four issues. First, he claims that he did not act fraudulently by executing and delivering a second deed of trust on the Chevy Chase house because, while he did not have legal title to the house, he did have a mortgagable interest in it. Second, he argues that even if he had no legal interest in the house, the government failed to prove that he had knowledge of this fact. Third, he maintains that he should not have been convicted of violating both 18 U.S.C. Sec. 1014 and 22 D.C.Code Secs. 3811, 3812(a) for the same conduct. Finally, Scarborough argues that he did not "willfully cause" the cashier's check to Bresler to be transported in interstate commerce within the meaning of 18 U.S.C. Sec. 2314, as affected by 18 U.S.C. Sec. 2(b). 6 We have fully considered appellant's arguments and find them inadequate to upset any of the convictions. Accordingly, we affirm the district court's judgment in all respects. For purposes of clarification, we offer a brief elaboration of our reasoning for affirming Scarborough's conviction for the transportation of the cashier's check in interstate commerce pursuant to 18 U.S.C. Sec. 2314. 7 Appellant argues that, in order to sustain a conviction under 18 U.S.C. Sec. 2314, the government must prove that it was reasonably foreseeable that the cashier's check would travel in interstate commerce. Here the check was drawn on one bank in the District of Columbia and deposited in another, which he argues is inconsistent with foresight of any interstate travel. In United States v. Ludwig, 523 F.2d 705 (8th Cir.1975), cert. denied, 423 U.S. 1076, 96 S.Ct. 861, 47 L.Ed.2d 86 (1976), the court rejected the identical argument. The Eighth Circuit held that, since Congress intended interstate transportation to be "merely the linchpin for federal jurisdiction," and did not mean to relate interstate movement to the culpability of the underlying criminal acts, "the government should not have to prove that the interstate transport was in any way reasonably foreseeable." 523 F.2d at 707. We agree. 8 Scarborough seems also to contend that, since the movement of the check to Maryland did not further the bank fraud, the conviction was improper. The analysis in Ludwig is an adequate response to this argument as well. We therefore affirm Scarborough's conviction for violating 18 U.S.C. Sec. 2314, as well as his convictions on all other counts. 9 It is so ordered.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, No. 05-30076 v.  D.C. No. PATRICIA ANN LARSON, CR-04-00110-SEH Defendant-Appellant.  UNITED STATES OF AMERICA,  No. 05-30077 Plaintiff-Appellee, v.  D.C. No. CR-04-00110-SEH LEON NELS LAVERDURE, OPINION Defendant-Appellant.  Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding Argued and Submitted January 13, 2006—Portland, Oregon Filed August 28, 2006 Before: Diarmuid F. O’Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges. Opinion by Judge O’Scannlain 10263  UNITED STATES v. LARSON 10267 COUNSEL David F. Ness, Assistant Federal Defender, Federal Defenders of Montana, Great Falls, Montana, argued the cause for defendant-appellant Larson; Anthony R. Gallagher, Federal Defender, District of Montana, was on the briefs. James B. Obie, Helena, Montana, argued the cause for defendant- appellant Laverdure and filed a brief. Joseph E. Thaggard, Assistant United States Attorney, Great Falls, Montana, argued the cause for the plaintiff-appellee; William W. Mercer, United States Attorney, was on the brief. OPINION O’SCANNLAIN, Circuit Judge: In these methamphetamine conspiracy conviction appeals, we must consider whether defense counsel was improperly prevented from cross-examining coconspirators about the prison sentences they would have received but for their coop- eration with the government, and whether other trial rulings were proper. 10268 UNITED STATES v. LARSON I A Beginning in April 2003, police officers in Great Falls, Montana, investigated the possibility that Patricia Ann Larson and Leon Nels Laverdure were involved in a conspiracy to purchase and distribute methamphetamine. The police first orchestrated a controlled purchase of methamphetamine from Larson by a paid informant, one Con- nie Riggs, who had met Larson “through some sort of party or some kind of drug interaction” and had known her for “a couple years.” Riggs drove Larson to a house where Larson purchased approximately one sixteenth of an ounce of the drug (1.80 grams), which she then sold to Riggs. The police later arranged for two controlled purchases of drugs from Laverdure by Jason Gilstrap, another confidential informant. One purchase involved 1.46 grams of methamphet- amine, and the other involved 1.79 grams. The police also arranged for a confidential informant to purchase about 3.5 grams of methamphetamine from Joy Lynn Poitra and her cousin, Rick Lee Lamere. Lamere would later acknowledge receiving some of his methamphetamine from Laverdure. A second controlled purchase followed shortly after, at which time Poitra sold approximately 21 grams of methamphet- amine to the informant. B On July 23, 2004, a federal grand jury filed indictments against Larson, Laverdure, Lamere, and Poitra, charging each with a single count: conspiracy to possess and distribute con- trolled substances, “including but not limited to 500 grams or more of a substance containing a detectable amount of  UNITED STATES v. LARSON 10269 methamphetamine,” in violation of 21 U.S.C. §§ 841(a)(1) and 846, between January 1, 1999, and February 29, 2004.1 Prior to trial, Poitra pleaded guilty under a superseding indictment charging her with conspiring to possess a con- trolled substance with intent to distribute at least 50 grams of a substance containing a detectable amount of methamphet- amine. Conviction for the originally charged offense would have subjected Poitra to a term of imprisonment ranging from five to 40 years. With respect to Lamere, the government had notified him of its intention to seek an enhanced sentence under 21 U.S.C. § 851 and, accordingly, Lamere allegedly would have faced a mandatory minimum penalty of life imprisonment. Lamere avoided the possibility of such enhancement by pleading guilty to the conspiracy charge and admitting to having dis- tributed five kilograms of a substance containing metham- phetamine. Both Poitra and Lamere agreed to testify against Larson and Laverdure in exchange for the reduced charges. C The jury trial took place in Great Falls, Montana, before District Judge Sam E. Haddon, on October 26 and 27, 2004. Before any testimony was heard, Larson’s attorney requested that the defendants be allowed to “sit at counsel table with us so that we can consult with them.” The court denied the request. 1 The indictment further alleged “the drug quantity attributable to Defen- dant Larson to be five kilograms to fifteen kilograms of a substance con- taining a detectable amount of methamphetamine and two to 3.5 kilograms of cocaine”; and “the drug quantity attributable to Defendant Laverdure to be five to fifteen kilograms of a substance containing a detectable amount of methamphetamine.” 10270 UNITED STATES v. LARSON 1 On the second day of trial proceedings, the prosecution elicited testimony from Poitra and Lamere. On the witness stand, both Poitra and Lamere admitted to cooperating with the government with the expectation of receiving a reduced sentence. On direct examination, Poitra testified that she had obtained methamphetamine from Laverdure and that, on one or two occasions, she had overheard phone calls during which Laverdure would ask for “Patty” (i.e., Larson). Poitra said that Laverdure would then travel to Larson’s house to obtain the drugs. As to the controlled purchase which resulted in her arrest, Poitra testified that she had obtained the methamphet- amine from Larson through Laverdure. On cross-examination, counsel for Larson attempted to inquire about the likely prison term Poitra was facing absent her cooperation with the government. Judge Haddon sustained an objection by the prosecution and instructed the jury that the term of imprisonment was a decision for the court alone. Counsel was permitted to ask Poitra about the possibility of imprisonment, but not about her understanding of the particu- lar term she was likely to receive. Counsel was also able to cross-examine Poitra as to inconsistencies among the state- ments given to police in the course of three prior interviews. Poitra admitted to extensive drug use and to drug dealing. Finally, defense counsel cross-examined Poitra as to whether the plea agreement included a promise of a reduced sentence contingent upon her testimony at trial; Poitra acknowledged her understanding that the only person who could move to reduce her sentence was the Assistant United States Attorney. On direct examination of Lamere, the prosecution elicited testimony that Lamere had obtained methamphetamine from Larson through Laverdure. Lamere knew this to have been the case because, he said, Laverdure had told him it came from  UNITED STATES v. LARSON 10271 Larson. Lamere also testified that one “Fatso” Komeotis claimed to have obtained six ounces of methamphetamine from Larson, which he had then passed on to Lamere. The district court overruled two hearsay objections by defense counsel. On cross-examination, defense counsel, as it did when examining Poitra, elicited testimony from Lamere that he was testifying pursuant to a plea bargain under which he expected the government to move for a reduced sentence. 2 The jury rendered guilty verdicts against Larson and Laver- dure.2 On February 14, 2005, the district court sentenced Lar- son to a 97-month term of imprisonment to be followed by a four-year term of supervised release. On the same day, the court sentenced Laverdure to a 188-month term of imprison- ment to be followed by a four-year term of supervised release. II Larson and Laverdure’s first contention on appeal is that the district court violated their Confrontation Clause rights when it prevented counsel from cross-examining the govern- ment’s cooperating witnesses as to the minimum terms of imprisonment they would likely have faced if not for their agreement to testify against the appellants.3 2 The jury also rendered “special verdicts” finding the “amount of drugs attributable to . . . Larson, to be 309 grams of a substance containing a detectable amount of methamphetamine,” and the “amount of drugs attrib- utable to . . . Laverdure to be 364 grams of a substance containing a detectable amount of methamphetamine.” 3 With respect to our standard of review, there is a certain lack of clarity in our prior Sixth Amendment jurisprudence. In some cases we have reviewed de novo whether limitations on cross-examination are so severe as to violate the Confrontation Clause. See United States v. Adamson, 291 10272 UNITED STATES v. LARSON More specifically, Larson and Laverdure argue that the government’s case against them “was based almost entirely on the testimony of Poitra and LaMere [sic] . . . . Their credi- bility was, therefore, critical to the case.” Citing Delaware v. Van Arsdall, 475 U.S. 673 (1986), they further contend that but for the trial court’s limitation on cross-examination, the jury likely would have received a “significantly different impression” of the witness’s credibility. The government’s position is that the extent of cross- examination permitted was sufficient to pass constitutional muster and, if not, any error was harmless beyond reasonable doubt. A [1] The right to confrontation enshrined in the Sixth Amendment includes the right to cross-examine adverse wit- nesses. Davis v. Alaska, 415 U.S. 308, 315-17 (1974). This right, in turn, ensures a defendant’s opportunity to demon- strate any possible bias in the adverse witness as well as his F.3d 606, 612 (9th Cir. 2002); United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000); United States v. Beardslee, 197 F.3d 378, 383 (9th Cir. 1999). Yet in another line of cases, we have applied an abuse of discretion standard. See Wood v. Alaska, 957 F.2d 1544, 1550 (9th Cir. 1992); United States v. Lo, 231 F.3d 471, 482 (9th Cir. 2000); United States v. Feldman, 788 F.2d 544, 554 (9th Cir. 1986). This is not the first occasion on which we have noted the discrepancy. See United States v. Rodriguez- Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005). However, as was the case in Rodriguez-Rodriguez, we need not render a definitive holding as to the proper standard of review of this sort of Con- frontation Clause claim if reversal is unwarranted under any standard. See id. Moreover, the substantive Confrontation Clause standard, as we dis- cuss further below, itself prescribes deference to the trial court’s decisions. See, e.g., United States v. Jenkins, 884 F.2d 433, 435 (9th Cir. 1989). We also note that we may affirm the decision below on any ground sup- ported by the record, even if it differs from the reasoning of the district court. Padilla v. Terhune, 309 F.3d 614, 618 (9th Cir. 2002).  UNITED STATES v. LARSON 10273 motivation for testifying. Id. at 316-17 (“The partiality of a witness is . . . ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ ” (quoting 3A J. Wig- more, Evidence § 940, at 775 (Chadbourne rev. 1970))). [2] A Confrontation Clause violation occurs where the defendant is prevented from investigating “a prototypical form of bias” if the jury “might reasonably have found [that it] furnished the witness a motive for favoring the prosecution in his testimony.” Van Arsdall, 475 U.S. at 679-80. Accord- ingly, the cross-examination need not be certain to affect the jury’s assessment of the testimony. Fowler v. Sacramento County Sheriff’s Dep’t, 421 F.3d 1027, 1036 (9th Cir. 2005). Additionally, limitations on cross-examination “cannot pre- clude a defendant from . . . [making] ‘a record from which to argue why [the witness] might have been biased.’ ” United States v. Schoneberg, 396 F.3d 1036, 1042 (9th Cir. 2005) (quoting Davis, 415 U.S. at 318 (first alteration added)). But the right to cross-examine a witness for possible bias or incredibility is not absolute or unlimited. In Van Arsdall, the Supreme Court insisted that a trial court retains “wide lati- tude” to exclude cross-examination that is, among other things, harassing, prejudicial, confusing of the issues, threat- ening to the witness’s safety, repetitive, or only marginally relevant. 475 U.S. at 679. “ ‘[T]he Confrontation Clause guar- antees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Id. (quoting Dela- ware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). Moreover, in prior cases we have explained that, although the trial court cannot foreclose all inquiry into an otherwise proper area of cross-examination, it may impose limitations on cross-examination that are “reasonable” and not “arbitrary or disproportionate to the purposes they are designed to serve.” See, e.g., Fowler, 421 F.3d at 1037 (quoting Van Ars- 10274 UNITED STATES v. LARSON dall, 475 U.S. at 679; and Michigan v. Lucas, 500 U.S. 145, 151 (1991) (internal quotation marks omitted)). More specifically, the trial court does not err “ ‘as long as the jury receives sufficient information to appraise the biases and motivations of the witness.’ ” United States v. Shabani, 48 F.3d 401, 403 (9th Cir. 1995) (quoting United States v. Feldman, 788 F.2d 544, 554 (9th Cir. 1986)). On this point, the First Circuit’s formulation is apt: a trial court need allow only a “minimal constitutional threshold level of inquiry,” and it does not err provided that “there is sufficient evidence before the jury (absent the excluded evidence) from which the jury could make a discriminating appraisal of the possible biases and motivations of the witnesses.” United States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995) (inter- nal quotation marks omitted); accord Wood, 957 F.2d at 1550 (holding that the jury need have only “ ‘sufficient informa- tion’ upon which to assess the credibility of witnesses”). B [3] Accordingly, in this Circuit, we have distilled from the foregoing cases three criteria under which we will evaluate a claim that the trial court has violated the Confrontation Clause by excluding evidence: (1) whether the excluded evidence was relevant; (2) whether there were other legitimate interests outweighing the defendant’s interest in presenting the evi- dence; and (3) whether the exclusion of evidence left the jury with sufficient information to assess the credibility of the wit- ness. See Beardslee, 197 F.3d at 383 (citing United States v. James, 139 F.3d 709, 713 (9th Cir. 1998)). We apply these criteria to the present case. 1 [4] The parties do not specifically contest the potential rele- vance of the excluded cross-examination. All else being equal, we consider it more probable that a cooperating witness  UNITED STATES v. LARSON 10275 otherwise facing a lengthy prison sentence will give testimony biased in the government’s favor. Cf. James, 139 F.3d at 713 (citing Fed. R. Evid. 401). 2 As for the second criterion, “we begin by considering the probative value of the evidence.” Id. As noted above, the defense sought to elicit testimony that, but for their coopera- tion, Poitra and Lamere were facing mandatory minimum sen- tences of five years and life, respectively. [5] The five-year mandatory minimum faced by Poitra was of slight probative value. For an offense involving the sale of narcotics, a five-year sentence is not particularly lengthy; the jury likely assumed that Poitra’s sentencing exposure was at least that extensive without being specifically told so. Lamere’s exposure to a statutory life sentence has greater pro- bative value. We note, however, that the potential for biased or false testimony depends not only on the likely sentence the witness would otherwise face, but also—and more directly— on the reduction in sentencing he or she expects to receive. A cooperating witness’s motivation to give biased or false testi- mony is therefore not necessarily captured by the length of the potential sentence—the witness knows that his sentencing remains subject to the court’s discretion notwithstanding the government’s motion. Lamere’s sentencing had not yet taken place at the time he testified against Larson and Laverdure. [6] We must also consider whether the excluded cross- examination may have been prejudicial. See United States v. Easter, 66 F.3d 1018, 1022 (9th Cir. 1995). Larson and Laverdure sought to elicit testimony on cross-examination of Poitra and Lamere that “would [have] place[d] before the jury information from which it could infer the potential sentences the appellants faced and that could sway the jury.” United States v. Arocho, 305 F.3d 627, 636 (7th Cir. 2002), super- seded by statute on other grounds as stated in United States 10276 UNITED STATES v. LARSON v. Rodriguez-Cardenas, 362 F.3d 958, 960 (7th Cir. 2004); accord United States v. Mulinelli-Navas, 111 F.3d 983, 988 (1st Cir. 1997); Luciano-Mosquera, 63 F.3d at 1153. Where, as here, the defendants and cooperating witnesses were charged as members of a single conspiracy, we consider that danger especially troublesome. Moreover, we note that the severity of the potential prejudice is likely commensurate with the length of the prison term the cooperating witness may have received. The inference (stemming from Lamere’s potential sentence) that Larson and Laverdure could be sen- tenced to life in prison may have strongly biased the jury against conviction. 3 Lastly, we consider whether the jury was left with suffi- cient other information to assess the credibility of Poitra and Lamere. [7] In this case, it is clear that the district court did not fore- close “all inquiry” into the motivation for the cooperating witnesses’ testimony. Van Arsdall, 475 U.S. at 679. On cross- examination of Poitra, Larson’s attorney inquired about the plea agreement Poitra had reached with the government. He asked whether Poitra “was going to prison because of” the admissions in the plea agreement, to which Poitra responded affirmatively. Counsel then asked, “In fact, you’re going to prison for a minimum of five years; right?” Judge Haddon then interjected, “Well, just a minute counsel. You know that the sentencing of defendants in this court is the responsibility of the court. And I will make the decision about the appropri- ate sentence at the appropriate time. That’s not a proper sub- ject of cross-examination.” Counsel again attempted to ask Poitra about her “understanding of the penalty [she was] fac- ing.” Judge Haddon sustained the government’s second objec- tion. However, Larson’s trial counsel persisted, next asking, “Your understanding is, short of your cooperation, you’re  UNITED STATES v. LARSON 10277 likely to go to prison; correct?” Poitra answered affirmatively, and the following exchange ensued: Q. And you have a new baby, right? A. He’s two years old. Q. And obviously, you don’t want to go to prison and leave your baby; do you? A. No. Q. And you also know that there’s only one person in this courtroom that can even make a motion to try to reduce your sentence; correct? A. Yes. Q. And that’s Mr. Thaggard [the Assistant U.S. Attorney]; correct? A. Yes. .... Q. And so in a very real sense, your sentence is directly affected by your testimony here? A. Yes. Defense counsel was able to question Lamere along similar lines. Lamere testified that by his testimony against Larson and Laverdure he hoped for the government’s motion to reduce his prison sentence. He further acknowledged that the government prosecutor was the only person who could make the motion for the reduced sentence.4 4 The jury heard this testimony after the court’s admonition to defense counsel that sentencing “is the responsibility of the court.” We are satis- fied that the jury understood that the Assistant U.S. Attorney’s motion was required to reduce Poitra and Lamere’s sentences. 10278 UNITED STATES v. LARSON [8] In United States v. Dadanian, 818 F.2d 1443 (9th Cir. 1987), modified on other grounds, 856 F.2d 1391 (9th Cir. 1988), we rejected a claim that the district court violated the Sixth Amendment when it “fail[ed] to allow cross examina- tion of [a cooperating witness] about his maximum jail time exposure.” 818 F.2d at 1449. The court explained that Van Arsdall was not violated because the witness “was subject to extensive cross examination about the terms of his agreement with the government,” including questioning about an agree- ment to dismiss nine mail fraud counts and illegal gambling and racketeering charges in exchange for his testimony. Id. This constituted “more than an adequate opportunity to expose [the witness’s] potential bias and motive in testifying,” and thus the prison time the witness faced was “at best mar- ginally relevant.” Id. The cross-examination permitted in this case was quite sim- ilar to that which we deemed sufficient in Dadanian. Larson and Laverdue, however, would have us distinguish that case. They contend that in Dadanian the defense sought to inquire into the penalties that a defendant “might” have faced (the statutory maximum sentence), whereas in this case counsel attempted to cross-examine Poitra and Lamere as to the sen- tences they “would” otherwise face (the statutory minimum sentences). They think the latter is more nearly relevant to a showing of potential bias. [9] However, we do not read Dadanian as suggesting that our inquiry should turn on the length or certainty of the sen- tence about which defense counsel sought to inquire. Rather, in Dadanian we considered whether the trial court foreclosed “all inquiry” into a prototypical form of bias or merely imposed limitations that are reasonable and not arbitrary or disproportionate to the purposes served. Where the court allows extensive examination as to the existence of an agree- ment by which a witness has traded adverse testimony for the government’s motion for a reduced sentence, the defense has provided the jury with sufficient information upon which to  UNITED STATES v. LARSON 10279 judge the witness’s motivation for testifying and his or her corresponding credibility. The length of the sentence the cooperating witness would otherwise face—even where cer- tain because of an applicable statutory minimum—is margin- ally relevant in light of testimony about the existence of an agreement generally. Such evidence may be excluded at least where, as here, the jury may have improperly inferred that the defendants faced sentences of similar duration. Our holding is consistent with the opinions of several other circuits, which considered and rejected similar Sixth Amend- ment challenges. See Arocho, 305 F.3d at 636 (holding that where the jury heard about the witnesses’ plea agreements, that multiple counts were dismissed in exchange for testi- mony, and that the witnesses expected to receive a substantial benefit, the trial court did not violate the Confrontation Clause by excluding cross-examination as to the “specific sentences and the sentencing guideline ranges they faced both before and after their cooperation with the government”); Mulinelli- Navas, 111 F.3d at 987-88 (holding that the district court did not violate the Confrontation Clause where it excluded cross- examination as to the possible sentence faced by the cooperat- ing witness because the defense was able to elicit testimony as to the government’s agreement to drop charges against him and that the U.S. Attorney would make a recommendation for reduction in his sentence; district court had reasoned that “matters of sentencing were in the sound discretion of the dis- trict court judge”); Luciano-Mosquera, 63 F.3d at 1153 (hold- ing that the district court did not violate the Confrontation Clause when it cut off cross-examination into the 35-year penalty a government witness would have faced on counts that were dropped in exchange for his testimony; the defen- dant had “sufficient opportunity to expose potential biases” and “[a]ny probative value of information about the precise number of years [the witness] would have faced . . . was slight”); United States v. Nelson, 39 F.3d 705, 707-09 (7th Cir. 1994) (holding that the court reasonably limited cross- examination where it “prevented defense counsel from asking 10280 UNITED STATES v. LARSON [the witnesses] what penalties they might have faced without plea-bargains” where the jury heard about the plea bargains and about “what the witnesses were to receive from the bar- gains”; “once this core function is satisfied by allowing cross- examination to expose a motive to lie, it is of peripheral con- cern to the Sixth Amendment how much opportunity defense counsel gets to hammer that point home to the jury”); Brown v. Powell, 975 F.2d 1, 3-6 (1st Cir. 1992) (holding that the trial court did not violate the defendant’s Sixth Amendment rights when it excluded testimony that a cooperating witness had avoided the possibility of a life sentence without parole in exchange for his testimony; the jury had sufficient other information before it to apprise possible biases and motiva- tions).5 In sum, Poitra and Lamere were “subject to extensive cross examination, which established a variety of potential flaws in [their] testimony.” James, 139 F.3d at 714; accord Easter, 66 F.3d at 1022. We are satisfied, in light of the district court’s “wide latitude” on such matters, that the jury received ade- quate information with which to appraise the biases and moti- vations of the cooperating coconspirators. C [10] Having considered the foregoing factors, we reject Larson and Laverdure’s claim that the district court’s limita- 5 Decisions of this circuit in which the court found a Confrontation Clause violation are distinguishable from the present case. For example, Schoneberg involved circumstances in which defense counsel “was not permitted to cross examine [the witness] about whether his testimony was affected by the government’s promise to move for a sentence reduction if his testimony satisfied the government.” 396 F.3d at 1040-41. Here, Lar- son and Laverdure clearly had the opportunity “to make clear to the jury what benefit or detriment will flow [from Poitra and Lamere’s testimony], and what will trigger the benefit or detriment, to show why the witness might testify falsely in order to gain the benefit or avoid the detriment.” Id. at 1042.  UNITED STATES v. LARSON 10281 tion on cross-examination of adverse witnesses violated their Confrontation Clause rights. Poitra’s five-year minimum was of slight probative value. With respect to Lamere’s potential life sentence in particular, there was a significant danger of undue prejudice from counsel’s intended line of cross- examination. And as to each in equal measure, the jury other- wise received sufficient information from which to evaluate the cooperating witness’s biases and motivations. III Next, Larson and Laverdure contend that the district court erred when it admitted, over counsel’s objection, Lamere’s testimony that Laverdure and “Fatso” Komeotis told him that Larson was the source of their methamphetamine. Larson and Laverdure frame this objection as violating the Federal Rules of Evidence, as well as the Sixth Amendment.6 A Larson and Laverdure first contend that Lamere’s testi- mony was hearsay. They argue that, although the coconspirator-statement rule may encompass statements that aid in the initiation of the conspiracy or those that “help plan future strategy,” see FED. R. EVID. 801(d)(2)(E), the rule does not permit the introduction of the statements at issue, which they consider merely “chit chat, bragging, or descriptive com- ments,” and, in any event, that there was inadequate founda- tion here to support admission under Rule 801(d)(2)(E). 6 We review de novo the district court’s application of the hearsay rule. United States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir. 2004). However, we apply a clearly erroneous standard in reviewing whether challenged statements were made in the course and furtherance of a conspiracy. United States v. Pena-Espinoza, 47 F.3d 356, 360-61 (9th Cir. 1995); United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003). We review de novo whether the admission of an out-of-course state- ment violated the Confrontation Clause. United States v. Bowman, 215 F.3d 951, 960 (9th Cir. 2000). 10282 UNITED STATES v. LARSON The government’s position is that Laverdure and Komeo- tis’s statements were made during the course and in further- ance of a conspiracy. 1 [11] A coconspirator’s statement may be admitted against a defendant where the prosecution shows by preponderance of the evidence that (1) the conspiracy existed when the state- ment was made; (2) the defendant had knowledge of, and par- ticipated in, the conspiracy; and (3) the statement was made “in furtherance of” the conspiracy. Bowman, 215 F.3d at 960- 61 (citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)).7 In general, it is true that “[m]ere conversations between coconspirators, or merely narrative declarations among them, are not made ‘in furtherance’ of a conspiracy. Rather, to be ‘in furtherance’ the statements must further the common objectives of the conspiracy or set in motion transactions that are an integral part of the conspiracy.” United States v. arbrough, 852 F.2d 1522, 1535 (9th Cir. 1988) (citations omitted). [12] In prior cases we have considered a coconspirator’s identification of the defendant as the source of illegal drugs as having been made “in furtherance of” the conspiracy. See Williams, 989 F.2d at 1068-69; United States v. Paris, 827 F.2d 395, 400 (9th Cir. 1987). The broad context or circum- stances in which the statement was made can serve as founda- tion adequate to establish the purpose of such identification. Moreover, the foundation need be sufficient only to infer the statement’s purpose; it need not be laid bare on the pages of the trial transcript. See United States v. Layton, 720 F.2d 548, 557 (9th Cir. 1983) (“The context of [the coconspirator’s] statements supports an inference that they were made in fur- therance of the conspiracy.”). 7 Komeotis need not have been indicted to be considered a coconspirator for the purposes of Rule 801(d)(2)(E). United States v. Williams, 989 F.2d 1061, 1067 (9th Cir. 1993).  UNITED STATES v. LARSON 10283 In Yarbrough, we considered the admission of testimony that the declarant-coconspirator had conveyed details of past criminal acts committed by members of an alleged conspir- acy. See 852 F.2d at 1535 (involving, for example, reports of certain murders committed by conspiracy members). With no specific discussion as to “foundation,” the court treated the statements as clearly having been made “with the intent to keep [the] coconspirators abreast of what the [group] had done, was doing, or would do in the future.” Id. at 1536; accord United States v. Eaglin, 571 F.2d 1069, 1083 (9th Cir. 1977). The coconspirator was relaying facts as to what steps had been taken in furtherance of the conspiracy’s ultimate goal. Similarly, in Williams, we considered out-of-court state- ments identifying the defendant as the source of drugs and held that the statements could be admitted under Rule 801(d)(2)(E). 989 F.2d at 1067-69. Larson and Laverdure read Williams as involving statements that “were made to ‘set in motion a transaction that is an integral part of the conspira- cy.’ ” We disagree. In Williams we held simply that the state- ments concerning drug source—as opposed to other statements which involved a coconspirator’s request to buy drugs—were “clearly designed to keep [the coconspirator] informed as to the conspiracy’s activities.” Id. at 1068; see also id. at 1069 (holding that four other statements also “served to keep [a coconspirator] informed as to the group’s drug supply”). We also find helpful our holding in Pena-Espinoza. In that case, a special agent testified that, while attempting to make a controlled purchase of narcotics, he asked a coconspirator “where the stuff came from, referring to the cocaine that [he] bought yesterday.” 47 F.3d at 361. The court admitted testi- mony as to the coconspirator’s answer that the defendant was the source of the drugs. The testimony as to the coconspira- tor’s statement was not connected to any explicit foundational evidence as to why the declarant made the statement. See id. 10284 UNITED STATES v. LARSON Instead, we relied on “other evidence in the record,” such as “a drug courier’s several visits to [the defendant’s] house just prior to making deliveries, and the defendant’s presence dur- ing one of [the special agent’s] drug purchases.” Id. Thus, the defendant’s status as a coconspirator was sufficient to estab- lish the statements’ relevance to him and the manner in which it furthered the conspiracy’s purpose. 2 [13] In light of the foregoing cases, and given the context in which Laverdure and Komeotis made the statements at issue in this case, we easily infer several ways in which they furthered the objectives of the conspiracy. Most clearly, the statements by Laverdure and Komeotis kept Lamere abreast of the activities of the conspiracy. As in Yarbrough, the state- ments informed Lamere of certain steps taken in the process of reaching the ultimate goal of distribution of the metham- phetamine. As in Williams, the statements served to keep Lamere informed as to the group’s drug supply. And as in Pena-Espinoza, Lamere’s status as a member of the conspir- acy and the specific factual context in which the statements were made—during purchases of illegal narcotics—provide adequate foundation to infer the purpose of those statements.8 As the government suggests, the statements likely provided assurance to Lamere “that he would receive methamphet- amine from a source of supply known to him.” Given the dan- ger of the endeavor, Lamere may also have been interested to know precisely with whom he was dealing.9 8 As the prosecution pointed out at trial, “We’re looking at a business here. And basically [Komeotis] and Laverdure were identifying their sup- plier. And I think that that is highly relevant and it does pertain to the con- spiracy and tends to advance it.” 9 To be sure, a supplier’s informing a potential buyer as to the ultimate source of the illegal narcotics offered for the latter’s purchase is not a “mere conversation between conspirators” nor simply a “narrative declara- tion.” United States v. Fielding, 645 F.2d 719, 726 (9th Cir. 1981) (per  UNITED STATES v. LARSON 10285 [14] For all of the foregoing reasons, the district court did not commit clear error in admitting under Rule 801(d)(2)(E) the out-of-court statements of Komeotis and Laverdure. As such, the evidence was validly admitted against both Larson and Laverdure. See United States v. Eubanks, 591 F.2d 513, 519 (9th Cir. 1979) (per curiam). B We next consider Larson and Laverdure’s claim that admis- sion of the out-of-court statements violated the Confrontation Clause.10 [15] The Supreme Court’s recent decision in Crawford v. Washington, 541 U.S. 36 (2004), directs us to consider whether the admitted out-of-court statements were “testimoni- al.” As other circuits have done, we recognize that “Crawford at least suggests that the determinative factor in determining whether a declarant bears testimony is the declarant’s aware- ness or expectation that his or her statements may later be used at a trial.”11 United States v. Saget, 377 F.3d 223, 228 curiam). It is not a “casual admission of culpability to someone he had individually decided to trust.” United States v. Moore, 522 F.2d 1068, 1077 (9th Cir. 1975) (involving a statement by a coconspirator to a person unrelated to the conspiracy). And this is not a case in which the cocon- spirator had “limited responsibilities” in the enterprise such that the declarant’s statement was “immaterial to him.” United States v. Bibbero, 749 F.2d 581, 584 (9th Cir. 1984). 10 The government argues that the court could affirm the admission of Laverdure’s out-of-court statement against Laverdure as an admission by a party opponent. But if the statement were not the statement by a cocon- spirator, most likely Bruton v. United States, 391 U.S. 123 (1968), and its progeny bar its use in the joint-trial setting. 11 See also White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., con- curring in part) (“[T]he Confrontation Clause is implicated by extrajudi- cial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confes- sions.”), quoted in Crawford, 541 U.S. at 51-52. 10286 UNITED STATES v. LARSON (2d Cir. 2004); accord United States v. Hinton, 423 F.3d 355, 359 (3d Cir. 2005). The Crawford Court itself assumed that statements made in furtherance of a conspiracy “by their nature [are] not testimonial.” 541 U.S. at 56; accord United States v. Sanchez-Berrios, 424 F.3d 65, 75 (1st Cir. 2005); United States v. Lee, 374 F.3d 637, 644 (8th Cir. 2004). [16] Given our holding above, the out-of-court statements were clearly not testimonial in nature. It is unclear whether we are still required to apply the test articulated in Ohio v. Roberts, 448 U.S. 56 (1980), to determine the admissibility of such non-testimonial statements. See United States v. Wei- land, 420 F.3d 1062, 1076 (9th Cir. 2005) (stating that there is “uncertainty” as to whether the Ohio v. Roberts test sur- vives Crawford), cert. denied, 126 S. Ct. 1911 (2006); see also Jensen v. Pliler, 439 F.3d 1086, 1090 (9th Cir. 2006) (refusing to decide the issue), petition for cert. filed, ___ U.S.L.W. ___ (U.S. July 18, 2006) (No. 06-5449). In Roberts, the Supreme Court held that the admission of an out-of-court declaration in a criminal trial requires ade- quate “indicia of reliability.” 448 U.S. at 66. The Court cited two circumstances under which such indicia are established: (1) where admitted under a “firmly rooted hearsay exception”; or (2) where accompanied by “particularized guarantees of trustworthiness.” Id. Later, in Bourjaily v. United States, the Court held that “the co-conspirator exception to the hearsay rule is firmly enough rooted in our jurisprudence that . . . a court need not independently inquire into the reliability of such statements.” 483 U.S. at 183-84. Thus, the Bourjaily Court rendered the Sixth Amendment requirements for admit- ting coconspirator statements “identical” to those of Rule 801(d)(2)(E). Id. at 182-84. [17] The admission of the out-of-court statements was proper under Rule 801(d)(2)(E). As such, even if Roberts sur- vives Crawford, we hold that the Constitution was not vio- lated. See United States v. Hagege, 437 F.3d 943, 958 (9th  UNITED STATES v. LARSON 10287 Cir. 2006) (applying similar analysis), petition for cert. filed, 74 U.S.L.W. 3687 (U.S. May 23, 2006) (No. 05-1534).12 IV Larson and Laverdure also contend that the district court violated their constitutional rights to a fair trial and due pro- cess when it denied a request that the court seat them at the counsel table, instead seating them directly behind their attor- neys. They argue that the arrangement “adversely affect[ed] counsel’s ability to communicate with his client during the trial,” and that it “served to undermine the presumption of innocence” by injecting unnecessary and undue prejudice in the trial proceedings.13 A [18] The criminal process presumes that the defendant is innocent until proved guilty. Deck v. Missouri, 544 U.S. 622, 630 (2005); see also Estelle v. Williams, 425 U.S. 501, 503 (1976) (explaining that the presumption is a basic component of the right to a fair trial). Accordingly, the Constitution pro- hibits any courtroom arrangement or procedure that “under- mines the presumption of innocence and the related fairness of the factfinding process.” Deck, 544 U.S. at 630 (citing Wil- liams, 425 U.S. at 503). The presumption is so undermined 12 Admission under the coconspirator exception similarly alleviates any difficulty under Bruton and its progeny. See 391 U.S. at 128 & n.3; accord Sanchez-Berrios, 424 F.3d at 76; Eaglin, 571 F.2d at 1078. 13 At oral argument, counsel for Laverdure argued that the constitutional error stemmed from the combined effect of the seating arrangement and the proximity of federal marshals. The complaint about the marshals’ pres- ence, however, was raised for the first time at oral argument. It was not argued in the briefs, nor was there even any mention of it in the trial record. We consider it waived. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (“[I]ssues which are not specif- ically and distinctly argued and raised in a party’s opening brief are waived.”). 10288 UNITED STATES v. LARSON when the practice creates “an unacceptable risk . . . of imper- missible factors coming into play.” Williams, 425 U.S. at 505. 1 The courts have invalidated various courtroom arrange- ments and procedures as violating the right to a fair trial. See Deck, 544 U.S. at 632-35 (invalidating the routine practice of compelling defendants during the punishment phase of capital cases to wear visible shackles); Williams, 425 U.S. at 503-05 (invalidating the trial court’s requirement that a defendant appear in prison garb); Musladin v. LaMarque, 427 F.3d 653, 656-60 (9th Cir. 2005) (reversing a murder conviction because spectators wore buttons depicting the alleged victim’s photograph), cert. granted sub nom. Carey v. Musladin, 126 S. Ct. 1769 (2006); United States v. Olvera, 30 F.3d 1195, 1198 (9th Cir. 1994) (reversing a conviction because the defendant was compelled to speak the words of the bank rob- ber in front of the jury); Norris v. Risley, 918 F.2d 828, 831- 34 (9th Cir. 1990) (reversing a rape conviction because spec- tators wore anti-rape buttons). In contrast, the Supreme Court has upheld an arrangement by which four uniformed security personnel sat in the first row of the courtroom’s spectator section. See Holbrook v. Flynn, 475 U.S. 560 (1986). The Court explained that the deployment of security personnel is not “the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial.” Id. at 568-69. Similarly, in Morgan v. Aispuro, 946 F.2d 1462 (9th Cir. 1991), we held that the use of a court- room with special security features “did not ‘brand [the defen- dant] in [the jury’s] eyes with an unmistakable mark of guilt.’ ” Id. at 1465 (quoting Flynn, 475 U.S. at 571). And in Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004), we held that the “noticeable deployment” of four deputy marshals— “one near Williams, one near the jury, and one on each side of the gate from the spectator section”—was not inherently  UNITED STATES v. LARSON 10289 prejudicial, and we declined to remand to the district court for an evidentiary hearing on the issue. Id. at 587-89. The foregoing cases demonstrate that our core concern in this area is to avoid any procedure that undermines the pre- sumption of innocence by conveying a message to the jury that the defendant is guilty. See Flynn, 475 U.S. at 567 (explaining that guilt is not to be determined on “grounds of official suspicion, indictment, continued custody, or other cir- cumstances not adduced as proof at trial” (internal quotation marks omitted)); Williams, 425 U.S. at 503 (“[C]ourts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.”); Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir. 1999) (barring practices “creating an inherent danger that the jury may form the impression that the defendant is dangerous or untrustworthy . . . so as not to mark him as an obviously bad man or to suggest that the fact of his guilt is a foregone conclusion” (internal quotation marks omitted)); Olvera, 30 F.3d at 1197 (explaining that a trial practice cannot “isolate[ ] the defendant from all others in a courtroom [nor] inevitably associate[ ] him or her with the charged conduct” (emphasis added)); Norris, 918 F.2d at 831 (holding that the invalidated practice “constituted a continuing reminder that various spec- tators believed [the defendant’s] guilt before it was proven”). 2 While shackling and prison garb subtly suggest that the defendant should be imprisoned, and while buttons worn by spectators directly advocate for that result, the courtroom pro- cedure employed in this case is different. As with the uni- formed security guards in Flynn, the jury may not have even thought it remarkable that the two defendants were seated immediately behind their attorneys. The jury most likely “drew no impermissible inference” from the arrangement. Musladin, 427 F.3d at 657 (citing Flynn, 475 U.S. at 569). 10290 UNITED STATES v. LARSON [19] Given that the trial involved two defendants and the participation of two attorneys, the jury may have just as easily inferred that the arrangement simply ameliorated overcrowd- ing at the counsel table, or that it facilitated a more orderly and decorous courtroom. We are confident that the seating arrangement was simply “taken for granted,” and it surely car- ried a “wider range of inferences that a juror might reasonably draw.” Flynn, 475 U.S. at 569. In short, the arrangement in no way conveyed a message of Larson and Laverdure’s guilt and it therefore cannot be considered either “inherently prejudi- cial” or prejudicial in this particular case. See id. We note the agreement of the First Circuit, which, in United States v. Balsam, 203 F.3d 72 (1st Cir. 2000), con- cluded that a similar seating arrangement did not cause preju- dice by suggesting the defendant’s guilt. The court approved a district court’s decision, based on “the small courtroom and the attendant security concerns,” to seat the defendants in the front row of the spectator section. Id. at 81-82. The First Cir- cuit court noted that courtroom seating arrangements depend on “such a variety of factors” that it would afford substantial deference to the trial court’s decision. It concluded that “[t]he front row in the spectator section is not an inherently prejudi- cial location for seating criminal defendants.” Id.14 [20] Given that the seating arrangement in this case was not “inherently prejudicial,” the district court need not have “jus- tified [the arrangement] by an essential state interest specific to [Larson and Laverdure’s] trial.” Flynn, 475 U.S. at 568-69; Morgan, 946 F.2d at 1465 (holding that where a procedure is not inherently prejudicial “the state does not have to justify its decision” to employ that procedure). But see United States v. Sorrentino, 726 F.2d 876, 887 (1st Cir. 1984) (holding that 14 The factual difference between Balsam and this case is not significant. Though Balsam involved five defendants, deference is nonetheless due the trial court’s opting for alternative seating arrangements, based on similar concerns for courtroom security, for the two defendants at issue here.  UNITED STATES v. LARSON 10291 the district court must articulate reasons of security or practicali- ty).15 B Larson and Laverdure also suggest that the seating arrange- ment violated another constitutional value: a defendant’s right 15 Even if such a requirement were present, we think that the district court complied with it. We observe that in Deck, the Supreme Court took pains to assure the public that it did not “underestimate . . . the need to give trial courts latitude in making individualized security determina- tions.” 544 U.S. at 632. The trial transcript indicates that an “individual- ized security determination” is precisely what took place in this case: [LARSON’S COUNSEL]: I just wanted to ask permission if our clients could sit at counsel table with us so that we can con- sult with them. THE COURT: Well, that is a matter that I’m going to leave to the discretion of the marshals for security purposes, and that will be their decision. And I have given them authorization to have these people placed where they think necessary for those reasons . . . . You need only turn around to talk to your client. [LARSON’S COUNSEL]: They told me I had to ask you. They told me it was your order. THE COURT: Well, if they have no objection, I don’t. That’s up to — DEPUTY MARSHAL: I would prefer they stayed where they’re at. THE COURT: Marshal indicated he prefers the defendants stay where they are presently seated. That’s where they will stay. The judge relied on the informed, professional judgment of his deputy marshal and thereby clearly indicated that the only relevant concern involved in selecting this particular seating arrangement was courtroom security. Cf. Norris v. Risley, 878 F.2d 1178, 1182 (9th Cir. 1989) (explaining that a procedure is acceptable if it will be viewed only as a sign of a normal concern for safety and order). This constitutes a permissi- ble exercise of discretion, notwithstanding Larson and Laverdure’s attempt to malign the decision as “a rubber stamping of a request by law enforcement officers.” 10292 UNITED STATES v. LARSON to a meaningful defense and competent counsel. See Deck, 544 U.S. at 631. But there is no showing in the record that the seating arrangement interfered with the appellants’ ability to commu- nicate with their attorneys. Quite the contrary, the court explicitly informed the attorneys that they “need only turn around to talk to your client.” Counsel for Laverdure acknowledged at argument that the appellants were seated directly behind the attorneys and that counsel and client had ready access to each other. See United States v. Jones, 766 F.2d 994, 1004 (6th Cir. 1985) (finding no violation of the right to consult with counsel because the defendants could pass notes to the attorneys and the attorneys could get up from counsel table to speak with their clients). Moreover, there is no suggestion that, like the practice of shackling, the court imposed any physical burden, pain, or restraint that confused or embarrassed Larson and Laverdure. Deck, 544 U.S. at 630- 31. [21] We are persuaded that the challenged seating arrange- ment was not inherently prejudicial, and Larson and Laver- dure have not shown that they were actually prejudiced at trial. We therefore reject these constitutional claims. V Larson and Laverdure’s final contention is that their trial suffered from cumulative error. See, e.g., United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996)). Having dis- covered no error in Larson and Laverdure’s trial, we reject this argument as well. AFFIRMED. 

75 F.Supp. 655 (1948) MacDONALD v. DU MAURIER et al. District Court, S. D. New York. January 14, 1948. Charles S. Rosenschein, of New York City (Charles S. Rosenschein and Arthur L. Ross, both of New York City, of counsel), for plaintiff. Beekman & Bogue, of New York City, (Arthur E. Farmer, Edward K. Hanlon and Benjamin H. Stern, all of New York City, of counsel), for Doubleday Doran & Co., Inc. O'Brien, Driscoll & Raftery, of New York City (Arthur F. Driscoll, of New York City, of counsel), for Selznick International Pictures, Inc., David O. Selznick, David O. Selznick Productions, Inc., and United Artists Corporation. BRIGHT, District Judge. This action is one seeking a judgment for an alleged infringement of copyrights. Edwina Levin MacDonald, originally the plaintiff, has died since the commencement of the action and her ancillary administrator has been substituted. In her lifetime she wrote "I Planned to Murder My Husband", a confession story published in this country in Hearst's International Magazine of October, 1924. She incorporated that story in the novel "Blind Windows", which was published by the Macauley Company, in New York, in 1927. In 1938, the novel "Rebecca", written by the defendant Daphne DuMaurier, an English authoress, was published in this country by the defendant Doubleday Doran & Company, Inc. In 1939 it was made into a motion picture by the same name, produced by the defendants Selznick International Pictures, Inc. and David O. Selznick, Inc., and, in March 1940, released and distributed for exhibition by the defendant United Artists Corporation. Plaintiff claims, and defendants deny, that "Rebecca" infringes the copyrights of "I Planned to Murder My Husband" and "Blind Windows", that the defendant DuMaurier had access to Mrs. MacDonald's *656 works, and has substantially copied the same. A list of some 46 parallelisms is submitted by plaintiff as illustrative of the claimed plagiarism. "I Planned to Murder My Husband", written in the first person, purports to detail the feelings and experiences of a 16 year old unnamed girl, who, three months after graduation from a finishing school, marries Howard, a divorced man, 31 years old, of distinct Latin type. She goes to his home and sees there the furnishings, wedding presents, ornaments and servants of Della the first wife. Frequent references to her by the husband, servants and friends, and the surroundings in the home, engender a bitter jealousy of the first wife and hate for the husband and the thought that he still loved Della. The second wife's hate is further inflamed by Howard's cruel and vicious nature and violent temper, and she reaches the conclusion that her only salvation lies in her husband's death. Nearing the hour when this is to be accomplished, she entertains many at her "Farewell Party", and later dreams that she has accomplished his death. The shock wakes her. Her hysterical pouring out of the dream and her long months of suffering convinces her husband of her love for him, causes him to confide in her that he had wearied of his first wife and finally, because of her fickleness and public misbehavior, had divorced her. Shortly afterwards he dies, she finds out he had nothing, was not rich, only the son of a rich man, and she leaves the home. Later she meets he first wife and then discovers how futile had been her passion. The story ends without climax. It later developed in the deposition of Mrs. MacDonald, taken in this action, that the story is really a partial autobiography of her life. "Blind Windows" concededly is "I Planned to Murder My Husband", amplified and embellished. The first 200 pages are devoted to the life of the second wife, now identified by the name of Wilda Garnett, prior to and including her marriage and honeymoon, and her acquaintance with Ned Turner, a boy neighbor, which really has ripened into love. She is introduced by him to Vallon Dupré, about 35, French, and divorced. Between pages 200 and 361 is found the first story, in more detail, the first wife being named Ida, and expanded from a confession story into a novel, and which also ends without a climax. The balance of the book takes her back to Ned and a renewal of the acquaintance between them. "Rebecca" is written in the first person, the narrator never being identified other than by "I". She is 21 and employed as a companion of Mrs. Van Hopper. While at Monte Carlo with Mrs. Van Hopper she is introduced to Max deWinter, an Englishman, about 42, who had been previously married and whose wife, Rebecca, is said to have been drowned. They are married after a short acquaintance, and following a honeymoon in Italy, he takes her to Manderley, his manor house in England. There she meets, among others, Mrs. Danvers, the housekeeper, devotedly attached to the first wife, who obviously resents what she deems the intrusion of the second wife; and who finally almost causes "I" to commit suicide. The story is climaxed in the discovery of the body of the first wife in her boat sunk in the bay near Manderley, the confession by deWinter to "I" that he had murdered her, a coroner's inquest at which there is a finding of the first wife's suicide, the burning of the manor house, perhaps by Danvers, and the subsequent quiet and contented life of "I" with her husband. This action has already felt the impress of judicial decision. A motion for judgment on the pleadings was made by the defendant Doubleday, which was granted, Judge Bondy holding that the two stories were different, and that, although there were many similarities, they were suggested by the basic plot and environment and did not constitute a substantial and material part of the copyrighted matter in plaintiff's story. Upon appeal, the Circuit Court reversed, 2 Cir., 144 F.2d 696, 700, in an opinion by Judge Swan, concurred in by Judge L. Hand, Judge Clark dissenting. Both sides take comfort from what was there written. What was then actually decided was that, because on such a motion access and copying must be assumed and conceded, the question remaining was whether the borrowing was a "fair use", the determination of which required that plaintiff have her day in court. Judge Swan wrote: "Because of the way the case came on — a motion for *657 judgment on the pleadings — we must assume not only that the author of the book charged with infringing had access to the plaintiff's copyrighted works but also that she actually copied those parts common to both. * * * If so the only answer to the charge of tortious plagiarism must be that the common matter was either in the public domain or was so trifling as not to count. * * * Even though some of them (the similarities) may be far fetched, for example, the reference to trees looking like sentinels, so many remain that the common matter is not so trifling that it can be ignored. Consequently the question comes down to whether the author's borrowing, although substantial in amount, was a `fair use.' That is always a troublesome question. In the case at bar the supposititious borrowings are not in the general outline of plot and character: in `ideas' as opposed to `expression.' On the contrary they consist in a series of concrete incidents and details, and if in fact these were all borrowed from the plaintiff, we cannot properly hold that the common matter was outside the protection of the copyright law." Obviously the Circuit Court did not intend to decide, or to eliminate for decision by this court, the issues of access and copying. Another portion of the prevailing opinion, to which my attention has been directed by defendant's counsel, contains statements which are obviously obiter. After the reversal, the same defendant moved for summary judgment, apparently adopting the suggestion made in the prevailing opinion on appeal, that upon such a motion it might be satisfactorily established that there was neither access nor copying. However, the motion was denied, D.C., 75 F.Supp. 653, Judge Bondy holding that from the circumstantial showing then made, the trier of the issues might reasonably infer Daphne DuMaurier had access to plaintiff's copyrighted works, and defendant's denial of such presented a question of fact to be determined only after a full review of the evidence. I have above skeletonized most briefly the three stories, principally to make this opinion more understandable. Judge Bondy, on the first motion, much more capably and completely reviewed them. The Circuit Court in 144 F.2d at page 700, wrote that his opinion "admirably outlines the stories of the two books", a conclusion concurred in by all three judges as well as myself. His opinion, published with that of the Circuit Court, states that "I Planned to Murder My Husband" is substantially enlarged and embellished in "Blind Windows" and need not be considered separately. In what further is written I will assume familiarity with that outline. Without reference to it, this opinion would be most incomplete. The questions now to be determined are, (1) whether the defendant DuMaurier, in writing "Rebecca" had access to "I Planned to Murder My Husband", or "Blind Windows", and (2) whether she copied a substantial part of the copyrightable portions of either or both. On both my decision is in favor of defendants on the law and the facts. Plaintiff's proof of access is entirely circumstantial. The facts shown, except the ultimate one that Miss DuMaurier ever saw or heard of either the book "Blind Windows" or the story "I Planned to Murder My Husband", are uncontradicted. As stated before, "I Planned to Murder My Husband" was published in 1924 in this country in Hearst's International Magazine. It was never published in England, although Hearst did publish there two other magazines. Miss DuMaurier was 17 years old in 1924 and had not yet submitted any of her writings for publication. She was born in England, has always resided there, and had never been to this country until the trial of this action. She had been writing poems and short stories since she was 14, and apparently had been an avid reader both of books, magazines and other publications, including anthologies. "I Planned to Murder My Husband" was considered by the Hearst editors as an outstanding example of a confession story and was shown from time to time to aspiring authors here and in England to illustrate the way in which such a story would be suitable to the Hearst organization for publication. The story was included in the anthology, "As I Look At Life", published by a Hearst subsidiary in 1925. One hundred thousand *658 copies were printed and distributed free as a premium to persons who subscribed to the Cosmopolitan Magazine, also published in this country by Hearst's International. It is not shown that "As I Look At Life" was ever distributed in England. The Hearst organization had offices in England, and its representative there was under a duty to obtain literary material, in the form of short stories, novelettes and fiction, from English authors for publication in this country in Hearst's International and Cosmopolitan. The Hearst representatives in England from 1925 until August, 1931, were Mr. Lengel and Miss Mildred Temple, and they testified they had a copy or copies of "I Planned to Murder My Husband" and of the anthology in London and did show the story to prospective contributors; but neither testified that they had met Miss DuMaurier. One of them stated that copies of Hearst's American Magazines were on sale in England, but it was not shown when, how many copies, what issues, or whether any of them contained the story "I Planned to Murder My Husband". "Blind Windows", as previously stated, was published in New York in 1927, and about 3500 copies were printed. What became of them is not shown. In 1927, English publication rights in that book were sold by The Macauley Company through Curtis Brown, literary agents, with offices in London and New York, to John Long, Ltd., an English publisher. The book was published in England in March, 1928. Apparently 1184 copies were printed, of which 337 were sold in England and 44 in the English colonies. What became of the remaining 803 is not shown, except that one of the witnesses stated that they were probably reduced to pulp. The American book department of Curtis Brown, of which Laurence Pollinger was the head, handled the sale of the rights in the book to Long. He denied ever having seen or read the book. A review of that novel was published in London in the Times Literary Supplement on Thursday, May 10, 1928. But a reading of that review would not reveal a story similar to that outlined by Judge Bondy, or even that it was a "second wife" plot. Miss DuMaurier admitted that she occasionally read book reviews in the Sunday London Times literary supplement, but denied that she read the Thursday supplement. In 1928 she was 21, and, aside from her denial, it is difficult to understand how a reading of that review would either have furnished her with material for "Rebecca", which she did not commence to write until 1937, or which would have enticed her to read "Blind Windows" by the half praise contained in it — "Some care has been taken with the book, but it rarely leaves the gentle, sentimental plane." The first poem written by Miss DuMaurier — "The Old Ship" — was published in London in 1928 or 1929, in her uncle's publication "The By-Stander". She retained Curtis Brown, Ltd. of London, previously mentioned, as her literary agents in England in the summer of 1929, and in America in 1930. She also retained Stern & Rubins, attorneys in New York, to take care of some of her legal matters in this country in 1938, and this firm acted as counsel for the defendant Doubleday during the progress of this litigation. She wrote her first novel, "The Loving Spirit", in 1929 and it was published in 1931 in England. On May 13, 1931, Miss DuMaurier sold a short story, entitled "A Symphony On Paper", for publication in Hearst's Cosmopolitan in New York, and it was published in the September, 1931, number of that magazine under the title "His Letters Grew Colder". A manuscript card, kept in the files of Hearst's International Magazine, revealed this transaction in May, 1931, and that the payee for the story was the defendant DuMaurier, the check to be sent to London, care of Mildred Temple, Hearst's London representative. It was shown that only in instances where Miss Temple dealt directly with the author would the check come to her; that if the story was purchased through an agent, the check would be made to the author and sent to the agent. Miss Temple had no recollection of ever having met Miss DuMaurier, but the production of this card caused her to wonder if she had not; and Mr. Lengel testified that the story came from England and his best guess was that it came from Mildred *659 Temple; that the manuscript card revealed that Miss Temple must have gotten the manuscript herself, sent it over and requested that the check be sent to her. It was shown that Miss Temple had dealings once or twice a week with Nancy Pearn, who was at the head of the department of Curtis Brown in London which had charge of the sale of stories for magazines, and that from time to time Miss Temple showed to Nancy Pearn copies of stories published in Hearst's American Magazine, to suggest a way that stories might be purchased by the Hearst organization; and "I Planned to Murder My Husband" was so shown as such a sample. It did not appear, however, that any copy of that story was ever shown to Miss DuMaurier. Miss DuMaurier was acquainted with Michael Joseph and Nancy Pearn, and had met the latter when she took stories to her in the hope that they would be placed for publication. She was also well acquainted with Edgar Wallace, an English writer of mystery stories, and had read many of his books. Mr. Wallace's daughter Pat was one of her great friends, and she had frequently visited at their house and traveled with them to Europe on several occasions. It appeared that in two or three of the books written by Edgar Wallace and published by John Long, Ltd. in England, were pages which advertised other publications of John Long, among which was "Blind Windows", but Miss DuMaurier denied that she had seen these books or advertisements. Miss DuMaurier testified that she began thinking about the novel "Rebecca" in 1932, actually started the writing of it at Alexandria, Egypt, in 1937, and finished it in April, 1938; and that it was the product of her imagination, some of the scenes and incidents being founded upon her own home, known as Menabilly, in Cornwall, England, and other large residences in other parts of England, and upon legends and occurrences connected with some of these homes. After finishing the writing of the book, she handed the manuscript to Michael Joseph, who was not then connected with Curtis Brown. At her request, Mr. Joseph delivered the manuscript to her publisher without revision, and it was later published by Victor Gollantz, Ltd. in England, and by Doubleday in the United States in 1938. It was an immediate success, and in three years after its publication, had sold over 400,000 copies. She categorically denied that, although she had read many novels and short stories, she had ever read Hearst's International Magazine, that she had ever met or heard of Mrs. MacDonald; or had ever heard of or read "I Planned to Murder My Husband" or "Blind Windows" until after this action had been commenced. She further testified that "Rebecca" was entirely original with her, that no one had suggested any part of it to her, originally or for correction, and that the book was the product of her imagination without suggestion or copying from any other person or publication. Plaintiff contends that access is shown by the foregoing proven facts, and by the further proof that Miss DuMaurier admitted that from the time she was 14 she had read many books, some of which were "second wife" stories, but the only one she could recall was "Jane Eyre" which proved not to be such a story. From this the conclusion is said to be inevitable that the "second wife" story she did read was "Blind Windows", and that this is confirmed by the 46 similarities which plaintiff claims exist and which are adequately described in Judge Bondy's opinion previously cited. The circumstances shown do not inevitably lead to the conclusion of access, and the inferences and presumptions arising from them are as susceptible of the contrary. The denial of access made by the defendant, her proven reputation as a writer, and a reading of the three stories, have convinced me that she never saw or heard of "I Planned to Murder My Husband" or "Blind Windows" prior to the writing or publication of "Rebecca". There was nothing in her testimony which seemed to me false or improbable, and I accept it. Ordinarily, the failure of proof of access would be a complete answer to plaintiff's contentions. But in view of the similarities claimed to exist between the two books, said to be evidence of copying, and assuming arguendo that there is error in my finding of non-access, the question remaining is whether or not there was copying *660 of substantial copyrightable material, which, of course, is essential in order that there be infringement. Reference is again made to the opinion of Judge Bondy as well as those of the Circuit Judges printed in 144 F.2d 696. Every Judge who has considered the matter of copying has written adversely to the plaintiff's contention. Because of the insistence of plaintiff's counsel that what was written in the Circuit Court upon that subject was entirely unnecessary for the decision of the question there presented, and the earnest argument based upon the parallelisms claimed as well as the proof, said to show access, I have read and reread the three stories in conjunction with the voluminous testimony and exhibits introduced upon the trial, and I am convinced that there was no copying. In my opinion, not only is the handling of the plot or theme different, and the characters and incidents unlike, but also the readability of the two books inducing interest and a desire to finish, demonstrate the entire failure to show any literary piracy. Judge Clark has much more capably expressed what is in my mind. He comments in his dissenting opinion upon the sharp differences between the two stories in "intended objective and type of reader appeal, in fashioning of the plot and in its progression, in the inception and delineation of characters, in the climax of the story and denouncement of the plot, and in the effectiveness and, certainly in part at least, in the literary skill with which the chosen objective is reached." The similarities claimed are completely set out in Judge Bondy's opinion and his statement of them is to some extent adopted by the prevailing opinion of the Circuit Judges. I need not further refer to them except to suggest that the "second wife" plot and her coming into the former wife's home and being reminded of the first wife by the surroundings and conversation of servants and acquaintances would not ordinarily, and are not now contended to, be copyrightable or the subject of tortious plagiarism. As I understand it, plaintiff does not charge that the theme was improperly taken, only that details, incidents, similarities of locale, and characters were lifted. A large bulk of the parallelisms asserted naturally flow from the basic plot, are an integral part of it, and would naturally be expected to be included in such a story, written, as both were, by ladies with their intuitive analysis of the emotions, thoughts and introspection of their own sex under like conditions. Obviously the source of the material for "Rebecca" was entirely different from the source of that for the other publications. Mrs. MacDonald was writing of her personal experiences set out baldly in the first story and more fictionally amplified to a great extent in the second. Rebecca's theme was based upon imaginary lives. The ghost of Ida, the first wife in plaintiff's works, plus the actions of the husband, motivated the desire in the second wife to murder her husband. The murder in "Rebecca" was that of Rebecca, the first wife, and its concealment by the husband was the cause of his peculiar demeanor and actions so inexplicable to the second wife. Whatever emotions are aroused in the second wife by her thoughts of the first wife are seemingly unintentionally caused in plaintiff's stories; while those in "Rebecca" are vindictively and intentionally provoked by Mrs. Danvers. Vallon was rid of his first wife by a questionable divorce; deWinter assured his first wife's elimination by just shooting her. Wilda was freed of her entangling alliance by the death of Vallon; "I", to the contrary, was assured of a continuance of their mutual devotion by the confession of deWinter, his subsequent acquittal of responsibility, and the destruction of the home. Ida proved herself to be the contrary of what Wilda's thoughts had erected; Rebecca's devilishness was revealed in the dramatic story of her destruction. Vallon's house remained as his first wife had left it; Manderley was changed so that the second wife and deWinter would not occupy his first wife's boudoir, obviously to eliminate the necessity of deWinter's entering surroundings hateful to him. The basic thought of the theme in "Blind Windows" is presented in its very title. Throughout its context, the idea of the authoress was to picture characters whose minds were separate houses having tightly shuttered windows, concealing from outsiders the turbulent life within; the desire *661 to portray the emotions and impulses that carried on behind these closed windows; and the closing of the shutters of their secret house by the actors in the story. All that was concealed in "Rebecca" was a crime, which deWinter had confessedly committed, and which accounted for the behavior, which "I" did not understand, until it was revealed. And the characters in the two stories are different. Wilda was clearly dominated first by her desire to outdo her girl friends and to attract from them the male in their midst; "I" is not revealed to have had any such disposition, and had no opposition in the affections of deWinter. Clearly Wilda was intensely jealous and that temperment ruled her very existence; there is little, if any, showing of that in "Rebecca". Wilda ensnared herself in a marriage to a virtual stranger, and one which she did not love, by a silly adherence to what is described as a Garnett trait, never to break a promise or change a decision; "I" devotedly loved deWinter and was impelled by no other thought in her marriage. Wilda revelled in dress and her honeymoon was a "perfect orgy in pretty clothes"; not so "I", whose dress was the opposite. Wilda had already fallen in love with Ned, but there was no divided affection so far as "I" was concerned. Wilda's father did not tell her not to marry, as did Mrs. Van Hopper. The reasons given why marriage was inadvisable were entirely different in the two stories; Wilda's father emphasized the disparity of age, the impossibility of mental affinity, the French and, therefore, different point of view of Vallon, his fixed ideas and the fact that Wilda's were in the making, that Dupré had lived and that Wilda had been trained merely to think, and the consequent impossibility of Wilda's leaping over what had already been experienced by Dupré. Mrs. Van Hopper's reason, aside from her obvious personal pique because of not being consulted, was that "I's" sheltered life had illfitted her to be the mistress of Manderley, she had not the experience; "You don't know that milieu". Wilda's married life seems to have been dominated by thoughts of the absent wife so that they became an obsession, and she sought refuge, of all places, in reading Boccaccio. "I's" mental discomforts seem to have spurred her on to love deWinter more and to do what she could to accomplish that. Wilda, the first night of her coming into the home, knew that she hated her husband, her expectations of a child definitely confirmed her hate, and her thoughts became homicidal. There is nothing like that in "Rebecca". Wilda's discovery of Dupré's divorce was taken by her as proof that she had been sacrificed by Dupré to be revenged on Ida for a real or fancied wrong, and which she considered as the bitterest draught and his one unforgivable sin against her. "I's" discovery of the first wife's murder removed whatever barriers existed between her and deWinter and was but an opportunity for a greater affection. And the "Farewell Party" of Wilda's, the final splurge before she was to finish off her husband, was entirely different in reason from the party portrayed in "Rebecca", which was given out of deference to the customs and traditions of the proprietors of Manderley prior to "I's" coming. Similarly, the portrayal of the characters of Vallon and deWinter, the husband, revealed entirely different personalities. Vallon was French or Latin descent, different from that of Wilda, not easy to live with, insistent upon his wife dressing better than others, of violent temper, and inclined to dramatize himself; deWinter, to the contrary, was of the same nationality as "I", modest in the extreme, retiring, entirely satisfied with the manner in which his wife attired herself, moody because of his conscience and what had taken place with his first wife, and motivated in whatever outbursts of temper he displayed, which were infrequent, by reminders of his first wife's life, associations and death. Vallon was intensely jealous and suspicious of Wilda, and that, coupled with the jealousy of Wilda, presented a pair in whom the green eyed monster monopolized their lives almost to the destruction of both. There is no character in "Rebecca" like that of Ned Turner in "Blind Windows"; there was no other man in "I's" life. There is no child born or anticipated in "Rebecca", and no character in "Blind Windows" like the blackmailer Jack Favell in "Rebecca". Even the first wives in both stories were different. Ida in "Blind Windows" was frivolous and flirtatious. *662 Her portrayal seems to be of a woman who merely excited the jealousy of her husband, but who was not promiscuous in her habits. "Rebecca", however, was confessedly an adulteress, and taunted deWinter with the possibility that any child she might bear from her illicit relations with other men would some day be the heir of all of Manderley. As I read the story, it occurred to me that "Rebecca's" sole purpose in the final interview between her and deWinter, knowing that she was to die of cancer, having been so advised by her physician, was to provoke her husband into such a rage that he would kill her and thus she would be revenged on him even after her death by having him as her murderer and suffering accordingly. Concededly there is no such character in "Blind Windows" as Danvers, the housekeeper at Manderley. And about her revolves much of the story of "Rebecca" and the unhappy existence for a time of "I". It was not so much the fact that a first wife had existed as it was the action of Danvers who reincarnated her for her own purposes as the vehicle from which she launched her hate of the second mistress of Manderley. There is nothing in "Blind Windows" like the story of the effort that Danvers pursued to confront "I" with the first wife, no obvious plan to superimpose the dead upon the living, no clear cut hate and contempt as the base upon which to foist the first wife upon the second, no intentional effort to belittle the latter and to treat her and make her feel like an interloper, to such an extent as almost to cause her suicide. The other references of the first wife's presence in Manderley were secondary to the vindictive efforts of Danvers, who gloated in the opportunity to call to the second wife's attention everything that the first wife had, used, and did. In other words, the first wife's presence in Dupré's household was of a passive character; in Manderley the first wife was actively made to live through Danvers. The dissimilarities between the locale, the characters and the incidents might still further be multiplied were this opinion to be extended. I am reminded by counsel, of course, that dissimilarities are not the criterion by which the question of plagiarism may be decided. But the dissimilarities in essential and most important parts of the text of the two works, in my opinion, prove that the similarities which may exist are in non-essentials and details which have no real probative bearing upon the issue to be determined. "Blind Windows" leads through a detailed and somewhat tiresome telling of the life of an immature and jealous girl, to a finale without climax and without a happy ending. "Rebecca" leads through an entirely different life, disturbed largely by the dread of a reference to the first wife or to the sea or to the bay, a mystery dark, foreboding and oppressive, to a tremendous smashing climax following upon the scene when, through the hypnotic efforts of Danvers, "I" almost jumped out of the window, the discovery of the body of the first wife, the confession of her murder, the subsequent coroner's inquest, the possible revision of the verdict of suicide by the revelation of Jack Favell, the subsequent discovery of the reason why Rebecca's death was known by her to be imminent, and the destruction by fire of Manderley, supposedly caused by Danvers, to the happy subsequent life of the two principals. In reader appeal, in description of scenes and characters, and in literary skill, there can be no claim, in my judgment, that the latter was copied from the former. As "Rebecca" was not copied from "Blind Windows" or "I Planned to Murder My Husband", it follows that the motion picture, which I have viewed, produced from the DuMaurier novel was not an infringement, and its production, distribution and subsequent exhibition not tortious. The complaint is, therefore, dismissed, upon the merits, with costs to the defendants Doubleday, Selznick and United Artists appearing separately. The defendants' attorneys may present findings and conclusions, a copy of which will be served upon plaintiff's attorney, who may have five days thereafter in which to file objections. The final findings and conclusions will be made by the court.

153 Ill. App.3d 373 (1987) 505 N.E.2d 1325 DAVID DIERSEN et al., Plaintiffs-Appellants, v. JOE KEIM BUILDERS, INC., et al., Defendants-Appellees. No. 2-86-0965. Illinois Appellate Court — Second District. Opinion filed March 18, 1987. *374 Aldo E. Botti and John N. Pieper, both of Botti, Marinaccio, DeSalvo & Pieper, of Oak Brook, for appellants. Reese J. Peck, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellees. Judgment affirmed. JUSTICE NASH delivered the opinion of the court: Plaintiffs, David and Karen Diersen, appeal from an order of the trial court which stayed judicial proceedings and ordered arbitration of plaintiffs' complaint for fraud and breach of contract against defendant, Joe Keim Builders, Inc. On appeal, plaintiffs contend the trial court erred in ordering them to submit to arbitration. On November 19, 1983, plaintiffs and defendant entered into a contract in which defendant agreed to construct a single-family dwelling for plaintiffs on property owned by defendant. The contract provided that "all claims, disputes and other matters in questions relating to this Agreement, or the breach thereof," would be settled by arbitration. On July 24, 1985, plaintiffs filed a demand for arbitration with the Northern Illinois Home Builders Association (NIHBA) seeking compensation from defendant for property damage resulting from *375 defendant's failure to notify plaintiffs of the existence of two subterranean drainage lines on defendant's property at the homesite. On April 14, 1986, plaintiffs filed a complaint against defendant alleging that defendant misrepresented that the property was suitable for construction of a single-family dwelling and that the drainage lines created an unrecorded, common law easement on the property. Plaintiffs alleged theories of fraud, wrongful diversion of water, and breach of an implied warranty of habitability and sought rescission based upon its claim of fraud. On July 27, 1986, plaintiffs filed a motion to stay arbitration which was denied by the trial court, and the court granted defendant's motion to stay judicial proceedings and compel arbitration. This appeal followed. Plaintiffs first contend that the court erred in ordering them to submit to arbitration without first ruling on plaintiffs' request for rescission of the contract and cite provisions of the Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 101 et seq.) in support of their contention. • 1 We first note that plaintiffs are correct in stating that section 2(a) of the Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 102(a)) requires the court to determine whether an agreement to arbitrate exists, where a party denies its existence, before ordering arbitration on the matter. Since arbitration is a matter of contract, a party cannot be required to arbitrate any dispute which he had not agreed to arbitrate (Monmouth Public Schools v. Pullen (1985), 141 Ill. App.3d 60, 64, 489 N.E.2d 1100; Clark v. Country Mutual Insurance Co. (1985), 131 Ill. App.3d 633, 638, 476 N.E.2d 4), and it is for the courts to determine whether the claim, on its face, is covered by the contract (Kostakos v. KSN Joint Venture No. 1 (1986), 142 Ill. App.3d 533, 538, 491 N.E.2d 1322; Lehman v. Eugene Matanky & Associates, Inc. (1982), 107 Ill. App.3d 985, 988, 438 N.E.2d 614). However, plaintiffs did not deny the existence of the arbitration clause and section 2(a) does not require the court to consider the merits of plaintiffs' claims of fraud and breach of contract before ordering arbitration. • 2 Plaintiffs next cite section 1 of the Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 101), which states that a written agreement to submit controversies to arbitration is valid "save upon such grounds as exist for the revocation of any contract." Plaintiffs argue that fraud in the inducement is a ground for revocation of the contract and the trial court therefore erred in ordering arbitration proceedings without first resolving plaintiffs' claim of rescission based on fraud in the inducement. *376 In support of this argument, plaintiffs cite People ex rel. Delisi Construction Co. v. Board of Education (1975), 26 Ill. App.3d 893, 326 N.E.2d 55, in which a construction company sought damages for breach of contract from a board of education after the board advertised plans and specifications, which included an arbitration clause, for the construction of an elementary school, accepted the company's bid on the project, and then notified the company that its acceptance was rescinded. The reviewing court construed sections 1 and 2 of the Act and held that the trial court could not invoke the arbitration provisions contained in the specifications without first determining that a valid contract existed, since the formal contracts were not signed by the parties or even presented to plaintiff for execution. (26 Ill. App.3d 893, 895-96, 326 N.E.2d 55.) However, we regard Delisi as inapposite. In the present case, the parties fully executed the contract at issue and there was no question that the formal contract and its arbitration clause existed. Moreover, the issue currently raised by plaintiffs herein as to the validity of the contract was not addressed in Delisi. In any event, it has been determined that claims of precontract fraud may be considered arbitrable matters. In J&K Cement Construction Co. v. Montalbano Builders, Inc. (1983), 119 Ill. App.3d 663, 456 N.E.2d 889, another case arising out of the construction of a residence, the court held that broad language in an arbitration clause will be construed as an agreement by the parties to resolve any and all disputes arising out of the subject matter of the contract, including allegations of breach of contract, breach of an implied warranty of habitability, precontract fraud, breach of duty, and unfair and deceptive trade practices. (119 Ill. App.3d 663, 670-72, 456 N.E.2d 889.) In reaching this decision, the court noted that the "majority of courts considering a claim of fraud concerning the contract as a whole as opposed to a fraudulent inducement to enter into an arbitration agreement has concluded that the fraud claim is within the scope of a broad arbitration clause." 119 Ill. App.3d 663, 671-72, 456 N.E.2d 889. The arbitration clause in the present case is identical to that considered in J&K and should be interpreted to encompass all disputes arising out of the contract. Moreover, as in J&K, plaintiffs' claim of fraud in the inducement is directed toward the contract as a whole and not solely against the arbitration clause. Plaintiffs' claim is thus within the scope of the arbitration clause and the trial court was not required to resolve it before ordering the parties to submit to arbitration. *377 • 3, 4 Plaintiffs next contend the trial court stayed arbitration on the grounds of judicial economy and plaintiffs' inability to receive a fair and impartial hearing before the NIHBA. Plaintiffs argue that the claims and evidence against Joseph Keim individually are identical to those raised against this defendant and the trial court's order to submit to arbitration may lead to a duplication of effort and inconsistent results. Plaintiffs also argue that the NIHBA is biased because the association is comprised of builders such as defendant and defendant's attorney was a second vice-president of the association when the arbitration commenced. It is quite clear that the courts regard arbitration as a favored method of settling disputes. (Kostakos v. KSN Joint Venture No. 1 (1986), 142 Ill. App.3d 533, 536, 491 N.E.2d 1322; Schutt v. Allstate Insurance Co. (1985), 135 Ill. App.3d 136, 144, 478 N.E.2d 644; First Condominium Development Co. v. Apex Construction & Engineering Corp. (1984), 126 Ill. App.3d 843, 846, 467 N.E.2d 932.) Although one Illinois case has recognized that the factors of judicial economy and the desire to avoid the possibility of inconsistent results may permit the joinder and resolution of arbitrable and nonarbitrable claims by litigation (J.F., Inc. v. Vicik (1981), 99 Ill. App.3d 815, 820, 426 N.E.2d 257), the general rule in Illinois is that arbitration agreements in multiparty litigation should be enforced despite the existence of claims which create the potential for duplicative proceedings (J&K Cement Construction Co. v. Montalbano Builders, Inc. (1983), 119 Ill. App.3d 663, 674, 456 N.E.2d 889; Iser Electric Co. v. Fossier Builders, Ltd. (1980), 84 Ill. App.3d 161, 166, 405 N.E.2d 439; Galt v. Libbey-Owens-Ford Glass Co. (7th Cir.1967), 376 F.2d 711, 715-16). Moreover, where the issues and relationships are sufficiently interrelated and the result of arbitration may be to eliminate the need for court proceedings, submission of the disputes to arbitration meets the goals of judicial economy and of resolving disputes outside of the judicial forum. Kostakos v. KSN Joint Venture No. 1 (1986), 142 Ill. App.3d 533, 538, 491 N.E.2d 1322; see also J&K Cement Construction Co. v. Montalbano Builders, Inc. (1983), 119 Ill. App.3d 663, 456 N.E.2d 889. • 5 Here, it is apparent the issues and relationships are closely interrelated and plaintiff fails to demonstrate that the possibility of inconsistent results is likely. Plaintiffs also fail to provide any evidence of actual bias on the part of NIHBA, and its bare allegations of prejudice are insufficient to warrant a finding that the trial court erred in denying plaintiffs' motion to stay arbitration. Since the broad language of the arbitration clause clearly shows an intent by the parties *378 to settle disputes arising out of the contract through arbitration, we conclude that the trial court did not abuse its discretion in denying plaintiffs' motion and granting defendant's motion to compel arbitration. Accordingly, the judgment of the circuit court is affirmed. Affirmed. LINDBERG, P.J., and UNVERZAGT, J., concur.