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535 U.S. 1021 GORDONv.CITY OF NEW ORLEANS ET AL. No. 01-8499. Supreme Court of the United States. April 22, 2002. 1 C. A. 5th Cir. Certiorari denied. Reported below: 273 F. 3d 393.

Opinions of the United 1999 Decisions States Court of Appeals for the Third Circuit 5-18-1999 USA v. Hernandez Precedential or Non-Precedential: Docket 98-5266 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999 Recommended Citation "USA v. Hernandez" (1999). 1999 Decisions. Paper 135. http://digitalcommons.law.villanova.edu/thirdcircuit_1999/135 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. Filed May 17, 1999 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 98-5266 UNITED STATES OF AMERICA v. JULIO HERNANDEZ, Appellant On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 97-cr-00362-2) District Judge: Honorable Anne E. Thompson Argued: January 25, 1999 Before: SLOVITER, McKEE and RENDELL, Circuit Judges (Filed May 17, 1999) Lisa Van Hoeck, Esq. (Argued) Office of Federal Public Defender 22 South Clinton Avenue Station Plaza #4, 4th Floor Trenton, NJ 08609 Attorney for Appellant George S. Leone, Esq. Allan Tananbaum, Esq. (Argued) Office of United States Attorney 970 Broad Street Room 700 Newark, NJ 07102 Attorneys for Appellee OPINION OF THE COURT McKEE, Circuit Judge. Julio Hernandez appeals his conviction for conspiring to obstruct interstate commerce by robbery in violation of 18 U.S.C. SS 1951 (a) and 2, and receiving or possessing goods stolen from commerce in violation of 18 U.S.C. S 659. He argues that the District Court erred in defining reasonable doubt to the jury, in sustaining objections to certain oral statements which defense counsel sought to admit into evidence, and in allowing jurors to ask questions of witnesses. Because we agree that the District Court's definition of reasonable doubt was likely to cause confusion, we will reverse and remand for a new trial. I. This case arises from the highjacking of a tractor trailer truck containing 494 cases of cigarettes valued at $335,125.00. On the morning of Friday, June 13, 1997, Jose Sanchez was delivering the shipment of cigarettes when a van cut him off and forced him to stop his truck. Washington Alvarez jumped out of the van waiving a gun and ordered Sanchez to roll down the window and get out of the truck. Sanchez complied with the demand, but only after he pressed a panic button inside the truck that was designed to silently signal an alarm. As Sanchez was forced from his truck, another individual, later identified as Julio Hernandez, got in. Alvarez lead Sanchez to a nearby van and forced him to get in. When Sanchez got inside, Alvarez placed duct tape over his eyes and taped his hands together. After Alvarez finished binding Sanchez, a third individual named Luis got out of a second van and joined the confederate who had gotten into Sanchez' truck. The conspirators then drove off with Sanchez' truck and its cargo, and Alvarez drove off with Sanchez. Sanchez was eventually released, and sought help from a police officer who lived nearby. Alvarez was arrested a short time later. 2 Meanwhile, a satellite tracking device inside the stolen truck disclosed the truck's location to police. As the truck was backed into a docking space at a gas station, the police arrived, secured the scene, and questioned onlookers about the whereabouts of the driver. A garage at the gas station had been converted to a warehouse, and after the police conducted their investigation they arrested Hernandez who had been unloading cases of cigarettes from the truck and placing them inside the warehouse. Police searched Hernandez pursuant to that arrest and found Sanchez' cigarette lighter inside a package of cigarettes that was inside Hernandez' shirt pocket. Hernandez later gave a statement in which he explained that he had borrowed a cigarette from men who had offered him a job unloading the truck. He explained that he never returned the cigarettes because the men left when the police arrived.1 According to Hernandez, the lighter was inside the pack of cigarettes when he got it. Hernandez stood trial on charges of conspiring to obstruct commerce in violation of 18 U.S.C. S 1951(a) (count 1), obstructing commerce by robbery in violation of 18 U.S.C. SS 1951(a) and 2 (count 2); and receiving and possessing goods that had been stolen from interstate commerce in violation of 18 U.S.C. SS 659 and 2 (count 3). Alvarez testified against Hernandez pursuant to a plea bargain. He testified that Hernandez had jumped into Sanchez' truck after Sanchez was forced out of it, and that Hernandez then drove it away with Luis, and one other conspirator. Hernandez' trial lasted only four days, but the jury deliberated for three days without reaching a verdict. Finally, on the third day, after the trial judge gave a modified Allen charge, the jury convicted Hernandez on counts 1 and 3, but acquitted him of the charges in count 2 of the indictment. This appeal followed. II. We turn first to Hernandez' challenge to the District _________________________________________________________________ 1. Police did briefly detain two men, but allowed them to walk away after brief questioning. 3 Court's practice of allowing jurors to participate in questioning witnesses during the course of the trial. The District Court allowed jurors to pose questions by handing the court written questions for the court's review. It appears from this record (and appellant does not argue to the contrary) that the court would then allow the attorneys to see the question so that counsel could make whatever objections they deemed appropriate, and the court could thus determine the admissibility and propriety of a question outside the hearing of the jury before asking the question. One juror did submit a question in this manner. The juror asked: "[w]hat kind of rear doors are on the rear of the trailer?" App. at 644. However, the court did not ask the question of the witness. Rather, the court allowed the attorneys to decide what, if any, response each would make to the question. The court then gave the following explanation to the jury: Let me just say with regard to questions that are presented by a witness, -- by a juror, it well may be a particular witness who is on the stand at the time may not be the person to whom such a question would be addressed because he may not be a witness who may be in a position to answer the question. We appreciate having your questions because now the attorneys on both sides know what inquiries you would make and either they may address them through their closing arguments, or they know if they wish to bring any additional witnesses to address the question, that would be up to them. App. at 644-45. Defense counsel immediately objected to the question, even though the court never asked it. When court reconvened the following day, defense counsel reiterated her objection, and requested that the court conduct voir dire of the juror who had submitted the question. Defense counsel argued that the substance of the question, as well as its timing, suggested that the juror assumed Hernandez was guilty. The court denied the request stating: 4  That . . . is an unreasonable request because there is nothing to suggest the juror had any notions of guilt. It merely reveals a juror had a question about the truck and what the truck was like. This was a fact question. There was nothing in the way the question was worded which suggested guilt, innocence, anything other than was the light red or was the light green? It was purely a fact question. I think it was handled appropriately. App. at 675-76. Defense counsel now insists that [b]y permitting the jurors to act as inquisitors and declining to investigate alleged jury misconduct following the suspect question, the court denied Hernandez his Sixth Amendment right to a fair trial before an impartial jury. Juror questioning of witnesses is a "procedure fraught with perils. In most cases, the game will not be worth the candle." United States v. Sutton, 970 F.2d 1001, 1005 (1st Cir. 1992). Appellant's Br. at 37. However, there is nothing here to suggest "jury misconduct" other than the unsupported inference that the juror who posed the question had reached a decision about the defendant's guilt before the end of the trial. Although defense counsel's argument urges such an assumption upon us, we refuse to jump to that conclusion. There is nothing in this record to suggest that the juror who posed the question was motivated by anything other than a desire to know about the rear doors on the highjacked truck. We will not violate the sanctity of the jury by requiring a judge to probe into the motivation behind such an innocuous question. Defendant's more general challenge to the propriety of allowing juror questioning is an issue of first impression in this circuit, and requires more discussion. Although we have not previously addressed this issue, several other courts of appeal have. Although those courts have consistently expressed concern over the dangers of the practice, they have refused to adopt a rule prohibiting juror questioning of witnesses during the course of a criminal trial. See United States v. Bush, 47 F.3d 511 (2d Cir. 1995); United States v. Ajmal, 67 F.3d 12, 14 (2d Cir. 1995); 5 United States v. Cassiere, 4 F.3d 1006, 1017-18 (1st Cir. 1993); United States v. George, 986 F.2d 1176, 1178 (8th Cir. 1993); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516 (4th Cir. 1985); United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir. 1979); United States v. Gonzales, 424 F.2d 1055, 1055 (9th Cir. 1970). We take this opportunity to approve of the practice so long as it is done in a manner that insures the fairness of the proceedings, the primacy of the court's stewardship, and the rights of the accused.2 In United States v. Polowichak, 783 F.2d 410 (4th Cir. 1986), the court disapproved the practice of posing juror questions in front of other jurors. The court stated that the trial judge should require questions to be submitted in writing, without disclosure to other jurors, "whereupon the court may pose the question in its original or restated form upon ruling the question or the substance of the question proper." Id. at 413. In United States v. Stierwalt, 16 F.3d 282 (8th Cir. 1994), the court held that the District Court did not err where questions were submitted in writing and all evidentiary issues were resolved before the judge read the questions to the witness. See id. at 286. See also George, 986 F.2d at 1178-79 (holding that despite the fact that the jury submitted 65 written questions to the court, the court employed proper formal procedures in that the questions were discussed with the attorneys and ruled upon by the judge). In United States v. Bush, supra, jurors directly questioned witnesses, including the defendant. Defense counsel failed to object, and even engaged in a dialogue with the jurors.3 The practice of allowing such questioning _________________________________________________________________ 2. Our discussion is in the context of this criminal trial. We note, however, that properly structured juror questioning in a civil trial poses even fewer of the risks than we are concerned with here. Moreover, allowing jurors in both civil and criminal trials to pose questions for the court's consideration is consistent with modern concepts of trial practice. See Verdict: Assessing the Civil Jury System Robert E. Litan ed. (1993). 3. After the defendant had answered one of the questions asked by a juror, defense counsel asked the juror: "does that answer your question sir?" 47 F.3d at 512. 6 was therefore reviewed for plain error. The courtfirst noted that "[w]e have already held . . . that direct questioning by jurors is a `matter within the judge's discretion, like witness-questioning by the judge himself.' " Id. at 514. The court noted that "[e]very circuit court that has addressed this issue agrees. State courts, moreover, have overwhelmingly placed juror questioning of witnesses within the trial judge's discretion, and indeed its common law roots are deeply entrenched." Id. at 515 (citations omitted). Nevertheless, the court expressed concern over this practice. "Although we reaffirm our earlier holding . . . that juror questioning of witnesses lies within the trial judge's discretion, we strongly discourage its use." Id. The court listed several dangers endemic to the practice including "turning jurors into advocates, compromising their neutrality," the "risk that jurors will ask prejudicial or otherwise improper questions," and counsel's inability to respond for fear of antagonizing, alienating, or embarrassing a juror. Id. The court noted that [b]alancing the risk that a juror's question may be prejudicial against the benefit of issue-clarification will almost always lead trial courts to disallow juror questioning, in the absence of extraordinary or compelling circumstances. Id. at 516. However, the court affirmed the conviction because the challenged questioning had been "limited and controlled" and because the defendant could not demonstrate prejudice. Id. In United States v. Sutton, 970 F.2d 1001 (1st Cir. 1992), the court voiced similar concerns about allowing jurors to question witnesses even though the procedure used involved the court asking questions that the jurors had submitted in writing. Id. at 1005. Once again, the court allowed the practice though it was clearly troubled by it. "Although we think this practice may frequently court unnecessary trouble, we find no error in the circumstances of this case." Id. at 1003. There, at the beginning of the trial, the trial court had informed the jurors that they could ask questions by handing written questions to the jury foreman who would then give them to the judge. "If your question even possibly could make any legal difference . . . 7 if it's relevant as the lawyers say, I'll ask it for you." Id. On appeal, the court stated: Allowing jurors to pose questions during a criminal trial is a procedure fraught with perils. In most cases, the game will not be worth the candle. Nevertheless, we are fully committed to the principle that trial judges should be given wide latitude to manage trials. We are, moreover, supportive of reasoned efforts by the trial bench to improve the truth seeking attributes of the jury system. Consistent with this overall approach, and mindful that the practice . . . may occasionally be advantageous, especially in complex cases and under carefully controlled conditions, we hold that allowing juror-inspired questions in a criminal case is not prejudicial per se, but is a matter committed to the sound discretion of the trial court. Id. at 1005. Although the court allowed the practice, it was quick to discourage it. "We hasten to add that the practice, while not forbidden, should be employed sparingly and with great circumspection." Id. The court also added to the list of concerns enunciated in Bush, though it acknowledged that the practice could further the search for truth by allowing jurors to clear up confusion. The court also recognized that allowing jurors to participate in questioning could enhance the attentiveness of jurors. Nevertheless, the court concluded "in most situations, the risks inherent in the practice will outweigh its utility." Id. In United States v. Ajmal, supra, the court did reverse a conviction based upon juror questioning of witnesses, even though the judge had "incorporated prophylactic procedures to lessen the potential prejudice. . . ." 67 F.3d at 15. The Second Circuit noted that the trial judge's decision to invite such questioning was not necessitated by the factual intricacies of this banal drug conspiracy, nor . . . prompted by the urging of jurors themselves. Rather, the District Court, as a matter of course, established at the outset of the trial that jurors would be allowed to question witnesses. Indeed, the District Court encouraged juror questioning throughout the trial by asking the jurors at the end of 8  each witness's testimony if they had any queries to pose. Not surprisingly, the jurors took extensive advantage of this opportunity to question witnesses, including Ajmal himself. Id. at 14 (emphasis added). The trial judge there had taken precautions. He had required questions to be in writing, and the court, rather than the attorneys, asked the questions. In addition, the court only asked those questions that it believed were proper under the Federal Rules of Evidence. Nevertheless, the Court of Appeals held that the trial judge had abused his discretion. Although the District Court substantially complied with the procedures this Court advocated in Bush,. . . such measures alone cannot purge the harm caused by the extensive juror questioning in the case at hand. Regardless of the procedures adopted by the District Court to vet questions, there must be ample justification for adopting the disfavored practice in the first instance. To hold otherwise would sanction juror questioning of witnesses in any circumstance, so long as appropriate prophylactic measures are adopted. We cannot accept such a proposition. In light of our discussion above, the District Court's encouragement of juror questioning of witnesses . . . was an abuse of discretion. 67 F.3d at 15 (emphasis added). Thus, although the court was once again concerned with the practice of allowing juror questioning absent circumstances sufficient to justify the risk inherent in the procedure, the court clearly based its reversal upon the trial court's encouragement of such questioning, and the frequency with which jurors had accepted the judge's invitation. Here, the court received only one question from the jury. It was a fact question that was not even asked. We do not think that one fact question which is submitted to a judge in writing, but not even asked, can be labeled an abuse of discretion. See United States v. Lewin, 900 F.2d 145 (8th Cir. 1990). In Lewin, jury questioning was deemed proper where the jury tendered six questions to the court and the court only asked four of them. The questions that the court 9 allowed were "specific and factual in nature," and no questions were asked of the defendant. Id. at 147-48. The court of appeals noted that "this [was] not a case in which juror questioning was allowed to become disruptive or abusive." Id. Moreover, the court suggested appropriate safeguards. "[I]f [the District Court] decides to permit jurors to ask questions in future trials, it should consider requiring jurors to submit their questions in writing, or orally out of the presence of the other jurors, without prior discussion with the other jurors." Id. at 148. We agree that a trial judge who allows such questioning in a given case should adopt a procedure to first screen the questions. However, we conclude that the dangers of allowing jurors to ask questions orally far outweighs any perceived benefit of allowing juror questioning of witnesses. Thus, the judge should ask any juror-generated questions, and he or she should do so only after allowing attorneys to raise any objection out of the hearing of the jury. The procedure utilized here is consistent with our admonitions and consistent with the sound exercise of judicial discretion. The court did not surrender its discretion as to whether to allow a given question to be asked, and the judge, not the attorneys (and certainly not the jurors), was to have asked any questions posed by a juror. This procedure is consistent with the holding of every court of appeals that has addressed this issue. We hold that the trial judge did not abuse her discretion. III. At trial, defense counsel attempted to have a witness testify that when police approached Hernandez at the gas station, Hernandez told them that "he was there unloading a truck and expected to be paid for his labor." Appellant's Br. at 18. The District Court ruled that the statement was inadmissible hearsay. Hernandez argues that this statement should have been admitted under the state of mind exception contained in Federal Rule of Evidence 803(3). We afford the District Court's evidentiary rulings plenary review insofar as the court was interpreting a rule of evidence. However, we review the court's rulings on 10 admissibility for abuse of discretion. See United States v. Donley, 878 F.2d 735, 737 (3d Cir. 1989). Federal Rule of Evidence 803(3) states: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. The state of mind exception is usually traced to the Supreme Court's holding in Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892). There, the Supreme Court held that letters in which a missing person expressed an intent to travel to Crooked Creek could be introduced to help establish the identity of an unidentified body later found there. The Court reasoned that "[t]he existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that intention would be." Id. at 295. Thus, while the letters were not proof that the deceased actually went to Crooked Creek, they tended to show that at least prior to his death, he intended to. Id. at 295-96. The rule is now firmly established that "[t]here are times when a state of mind, if relevant, may be proved by contemporaneous declarations of feeling or intent." Shepard v. United States, 290 U.S. 96, 104 (1933). However, the scope of this exception must be limited to prevent it from devouring the rule. Thus "[s]tatements that are considered under . . . the `state of mind' exception, cannot be offered to prove the truth of the underlying facts asserted." Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc. , 63 F.3d 1267, 1274 (3d Cir. 1995). See also Blackburn v. Aetna 11 Freight Lines, Inc., 368 F.2d 345, 348 (3d Cir. 1966), (holding "[i]t is too well settled to require discussion that a declaration of a state of mind or intention is admissible to prove that the declarant actually had such intention."). Thus, in United States v. Palma-Ruedas, 121 F.3d 841 (3rd Cir 1996), we affirmed the District Court's exclusion of testimony that a witness named Hernandez had said,"nice to meet" you when introduced to a person named Avenando. The proponent wanted to use the statement as evidence that the two had not previously met. We concluded that use of the statement was improper because "statements offered to support an implied assertion are inadmissible hearsay." Id. at 857 (citing United States v. Reynolds, 715 F.2d 99, 104 (3rd Cir. 1983)). Here, Hernandez' statement that he had just arrived and expected to be paid was only relevant because of the implied assertion that he was not involved in the highjacking. Appellant relies on United States v. DiMaria, 727 F.2d 265 (2d Cir. 1984), to support his argument that the state of mind exception applies. In DiMaria, the defendant was prosecuted for his involvement in stealing cigarettes. His defense was that he thought that no tax had been paid on the cigarettes ("bootleg cigarettes"), but that he did not know they were stolen. In support of that position, defense counsel attempted to introduce evidence that the defendant told FBI agents arriving on the scene: "I thought you guys were just investigating white collar crime; what are you doing here? I only came here to get some cigarettes real cheap." Id. at 270. The District Court excluded that statement ruling that it was inadmissible hearsay. The Court of Appeals for the Second Circuit reversed. That court held that the defendant's comment "stated, or so the jury could find, that his existing state of mind was to possess bootleg cigarettes, not stolen cigarettes. It was not offered to prove that the cigarettes were not stolen cigarettes but only to show that DiMaria did not think they were. . . . It was a statement of what he was thinking in the present." Id. at 271. The court also recognized that the Federal Rules of Evidence opted for the view that"the self- serving nature of such a declaration went only to its weight." Id. The court reasoned that"[t]here is a peculiarly 12 strong case for admitting statements like DiMaria's, however suspect, when the Government is relying on the presumption of guilty knowledge arising from a defendant's possession of the fruits of a crime recently after its commission." Id. at 272. DiMaria is distinguishable from the instant case. Here, Hernandez' statement that he was unloading a truck is not evidence of his state of mind. Rather, it is his out of court statement of why he was at the gas station, and what he was doing there. Accordingly, it does not fall within Rule 803(3), or any other exception to the general prohibition against hearsay evidence. Although his statement that he expected to be paid arguably falls within DiMaria's interpretation of Rule 803(3), we believe it is only relevant because of the implicit assertion that Hernandez was a laborer, and not involved in a highjacking. Accordingly, the District Court properly excluded it as required by Palma- Ruedas. To the extent that DiMaria would require a different result, we are clearly bound by our own precedent, as was the District Court. IV. Hernandez also alleges that the District Court's definition of "reasonable doubt" violated his Fifth Amendment right to due process and his Sixth Amendment right to a jury trial. "In reviewing whether a District Court in its charge to the jury correctly stated the appropriate legal standard, our review is plenary." United States v. Johnstone, 107 F.3d 200, 204 (3d Cir. 1997). Jury instructions, taken as a whole, must "clearly articulate the relevant legal standards" and "avoid confusing and misleading the jury." Id. at 204. When an attack upon a jury charge is based upon the trial court's instruction on reasonable doubt, "[t]he constitutional question . . . is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the [constitutional] standard." Victor v. Nebraska, 511 U.S. 1, 6 (1994). Such a reasonable likelihood exists here. It is axiomatic that "[t]he Due Process Clause requires the government to prove a criminal defendant's guilt beyond a 13 reasonable doubt," therefore, "trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires." Id. at 22. Nonetheless, District Courts are not required to define "reasonable doubt" as a matter of course. Id. at 5. Moreover, when a trial judge does define the term, no "particular form of words" is required. Id. The law requires only that the concept be correctly conveyed to the jury when it is defined. Id. (citing Holland v. United States, 348 U.S. 121, 140 (1954)). Reasonable doubt is not an easy concept to understand, and it is all the more difficult to explain. Moreover, given the concerns about crime that are so prevalent in today's society, common sense suggests that it is particularly difficult for lay jurors to understand that they must acquit a criminal defendant if the prosecution does not establish guilt beyond a reasonable doubt, even if they feel that the defendant is probably guilty. Jurors may well be reluctant to free someone accused of a serious and violent crime "merely" because the government didn't prove beyond a reasonable doubt what they feel "in their hearts" is probably true. Yet, due process is satisfied by nothing less than a juror's understanding that he or she may not vote to convict a defendant based upon a belief "that the defendant is probably guilty. . . ." Sullivan v. Louisiana, 508 U.S. 275, 278 (1993) (emphasis added). Rather, an impartial evaluation of evidence is required. "A juror is impartial if he or she can lay aside any previously formed `impression or opinion as to the merits of the case' and can `render a verdict based on the evidence presented in court.' " United States v. Polan, 970 F.2d 1280, 1284 (3d Cir. 1992). Reasonable doubt is, therefore, a doubt based upon reason rather than whim, possibilities or supposition. Id. at 1286. Here, the District Court commented upon proof at different points during the trial. The court first commented upon reasonable doubt during the course of jury selection. The court informed potential jurors: [THE COURT]: Now, ladies and gentlemen, a criminal case comes before you by way of indictment and the Government has to prove the elements of the offense, 14  each offense in the indictment beyond a reasonable doubt, each count has to be proven beyond a reasonable doubt. And if the Government fails to prove to your satisfaction each and every element of each count, then you would return a verdict of not guilty. If the Government does prove a count beyond a reasonable doubt, including each and every element, then you would return a verdict of guilty. You are to be thoughtful, systematic, analytical, impartial, unbiased. . . . Under our system of justice, the Government carries the burden of proof in a criminal case. The Government brings the charge. The Government has to prove the charge. . . . How do you decide if they have been proven? There is no scale we can say all right, this is how you can weigh the evidence. It's really an internal process that you must engage in. You have to use your judgment, your maturity, your powers of analysis, your sense of what makes -- what sounds reasonable, what sound [sic] likely. Does this sound like what happened or does that sound like I can't believe that's what happened? You have to decide that. App. at 121-22 (the "voir dire instructions"). 4 After the jury was empaneled, but before the jury began hearing evidence, the court told the jury: The burden of proof is on the Government. The Government brings the charges. The Government has to prove the charges. The grand jury has been impaneled by the Government. The defendant doesn't appear before the grand jury. The grand jury hears the evidence and decides whether an indictment shall issue, and you are the body to decide whether the charges are to be sustained. _________________________________________________________________ 4. For clarity, we will separately characterize each of the portions of the District Court's comments to the jury that are relevant to this appeal. 15 How do you decide that? By whether the Government can prove the guilt of the charges of this defendant beyond a reasonable doubt. That's the standard. How do you decide what is proof beyond a reasonable doubt? There is no specific definition. I'm sorry to tell you, but there are none. It's what you in your own heart and your own soul and your own spirit and your own judgment determine is proof beyond a reasonable doubt. I'll give you some definitions at the end of the trial when I give the Judge's charge to the jury, but don't expect it to be the kind of ruler or measuring rod that you are going to be able to say: Uh-huh, now, I know what proof beyond a reasonable doubt means. It's what you feel inside as you listen to the evidence, and so that's why you really have to pay attention from the very beginning. I'm going to have each witness put his or her name up on the easel there so you can just see that. That kind of helps you to focus. The government will call its witnesses first because that's the way a case proceeds. Each witness is called by the Government, questioned by counsel for the Government, cross-examined by the defense lawyer, counsel for the defense, and then, one by one, they come in and go out. Then the Government rests at the end of its presentation of witnesses. Then the defendant has an opportunity to present any witnesses he wants to present. He doesn't have to. He is free to present anybody he wants. Then both sides rest. Then the lawyers on each side give what we call a closing argument. They summarize what has been presented in the trial and the Judge gives the Judge's charge to the jury. When I do that, I'll give you something written so you can read along with me. That's when I'll define proof beyond a reasonable doubt. I'll define the presumption of innocence, what 16  does that mean. I'll define robbery. I'll define the various terms that you will hear throughout the trial. App. at 175-76 (emphasis added) (the "initial instruction"). Defense counsel objected, and the court responded in an effort to impress upon the jurors the importance of the reasonable doubt concept. The court stated: I don't want you to think that it is so ephemeral that it's meaningless or so subjective that it's an unworthy concept. It is a very important concept. It's indeed the backbone of the criminal law that proof must be convincing to a jury as to the guilt of a defendant beyond a reasonable doubt. And you will have to analyze the proofs so as to decide in your own mind: Was this proven beyond a reasonable doubt? App. at 13 (the "clarification"). At the end of the trial the District Court gave what defendant refers to as a "traditional charge" on reasonable doubt. There, the court explained: Under our system, the judge is the final arbiter of all questions of law and the jury in its deliberations must follow the law as given to it by the judge. It is the judge's function to instruct you in the law. You are not to be concerned with the wisdom of any rule of law. . . . *** Each phase of the instructions is to be considered and applied together with all other parts and phases of the instructions. You must not pick out some particular instruction alone or some particular portion of an instruction and overemphasize it and apply it without considering and keeping in mind all the other instructions given you with regard to this case. You should construe each of the instructions in light of and in harmony with the other instructions. You should apply the instructions as a whole to the evidence. The order in which the instructions are given has no significance and is no indication of their relative importance. . . . 17  *** A defendant is never to be convicted on mere suspicion or conjecture. The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witness or testifying himself or producing any evidence. If after a fair, impartial and careful consideration of all the evidence, you have a reasonable doubt as to a defendant's guilt, it is your duty to acquit him. . . . Now, what is reasonable doubt? Now, I'll try to define that. Reasonable doubt. A reasonable doubt is doubt based on reason and common sense. A reasonable doubt is such a doubt as would cause you to hesitate to act in matters of importance in your own lives. A reasonable doubt may arise from a lack of evidence. It is doubt based on reason, logic, common sense and experience. Reasonable doubt is not vague or hypothetical doubt. It is not speculative, imaginary qualms or misgivings. It is not just an excuse by a juror to avoid the performance of an unpleasant duty. It is not the normal sympathy which one human being may hold for another. App. at 800-1 (the "traditional charge"). We first address Hernandez' assertion that portions of the voir dire instructions require a new trial. He argues that "[b]ased on the court's remarks, the jury may have believed incorrectly that a conviction could be based on what they felt in their hearts or what sounded likely." Appellant's Br. at 18. He asserts that "the court's sounds likely test reduced the constitutionally required standard of proof to a mere preponderance of the evidence." However, the portion of the voir dire instructions that Hernandez challenges has nothing to do with reasonable doubt, nor do we think the jurors could have interpreted the comments to suggest a definition of that concept. Rather, the court was simply explaining how jurors go about determining if a witness is telling the truth. Its 18 comments amounted to nothing more than a suggestion that jurors ask themselves whether testimony has the proverbial "ring of truth," and we find no error in the court having done so. See Altmose Construction Co. v. NLRB, 514 F.2d 8, 15 n.8 (3d Cir. 1975) (noting the proverbial ring of truth in the noncriminal context); NLRB v. Nichols-Dover, Inc., 414 F.2d 561, 564 (3d Cir. 1969) (same). We reach a different result, however, with regard to the court's explanation of reasonable doubt. Defendant acknowledges that the traditional charge was proper, but argues that the initial instruction stated an incorrect definition of reasonable doubt, and also suggested that the jury could ignore the correct definition in the traditional charge by warning jurors that the traditional definition would not be helpful.5 Appellant's Br. at 18. The government responds in part by arguing that the judge's initial instruction was meant merely to give an overview of the trial procedure. The government cites Guam v. Ignacio, 852 F.2d 459 (9th Cir. 1987), to argue that "[i]nstructions given at the start of a case simply do not have the same impact and therefore importance as instructions given to the jury at the close of a case, just before the case is submitted for the jury's deliberation." Appellee's Br. at 14. However, we believe that Ignacio, and the other cases relied upon by the government actually support Hernandez' argument. In Ignacio, the trial court gave some general preliminary instructions that included instructions on reasonable doubt. The instruction that the court gave was, however, incomplete, and the Court of Appeals for the Ninth Circuit had previously ruled that the instruction "standing alone," was erroneous under Guam law. Ignacio, 852 F.2d at 461. However, the court's final charge "adequately cured the incomplete instruction. . . ." Id. Here, the initial instruction suggested that jurors could convict the defendant based upon what they believed in their own heart, soul and spirit _________________________________________________________________ 5. "There is no specific definition. I'm sorry to tell you, but there are none. It's what you in your own heart and your own soul and your own spirit and your own judgment determine is proof beyond a reasonable doubt." App. at 175. 19 whether or not that belief was based upon a reasoned conclusion that the evidence established Hernandez' guilt beyond a reasonable doubt. Therefore, it was erroneous, not merely incomplete. The distinction is substantial. Subsequent amplification can fill the interstices in an incomplete explanation. However, when an erroneous instruction is given, a subsequent clarification must be sufficiently clear and compelling to allow a reviewing court to conclude that there was no reasonable likelihood that the initial inaccuracy affected the jury's deliberations. Victor, supra. Here, the government does not even maintain that the court's explanation that reasonable doubt is "what you feel inside" was correct. Rather, the government urges us either to ignore this language or to minimize its significance because of the subsequent clarification. In Ignacio, the court stated: [g]eneral orientation at the beginning of a trial should be cautiously worded, but it will not require reversal unless it produces prejudice or misleads the jury in a material way. Id. at 461. Allowing a jury to determine reasonable doubt as to each element of a crime based upon what "you in your own heart and your own soul and your own spirit and your own judgment determine is proof beyond a reasonable doubt" clearly misleads the jury in a material way, to the prejudice of the defendant. It allows each juror to judge the evidence by a visceral standard unique to that juror rather than an objective heightened standard of proof applicable to each juror. It allows jurors to convict based upon their individual "gut feeling." In Jackson v. Virginia, 443 U.S. 307 (1979), the Court stated The standard of proof beyond a reasonable doubt . . . plays a vital role in the American scheme of criminal procedure, because it operates to give concrete substance to the presumption of innocence to ensure against unjust convictions and to reduce the risk of factual error in a criminal proceeding. At the same time by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the 20  accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. 443 U.S. at 315 (emphasis added) (internal quotation marks omitted).6 Thus, although a juror must subjectively believe that a defendant has been proven guilty, that subjective belief must be based upon a reasoned, objective evaluation of the evidence, and a proper understanding of the quantum of proof necessary to establish guilt to a "near certitude." An instruction which allows a juror to convict because of his or her subjective feelings about the defendant's guilt, without more, is clearly inadequate. Here, as Judge Sloviter quite correctly notes in her thoughtful and forceful dissent, the District Court did tell the jury that their verdict had to be based upon the evidence, and that the government had the burden of proof. See dissent at 31. However, a likelihood of confusion remained as to the quantum of evidence necessary to sustain a conviction, and the level of certainty that a juror had to have as to the defendant's guilt, because the original explanation of reasonable doubt may well have remained in the juror's minds. Thus, a juror may well have concluded that a"gut feeling" as to the defendant's guilt was adequate to convict so long as that feeling was supported by a preponderance of the evidence (or even less). The reasonable likelihood that this may have happened is not mitigated merely because jurors understood that the government had the burden of proof. Francis v. Franklin, 471 U.S. 307, 322 (1985). Moreover, the remaining cases that the government relies upon are not to the contrary. See Appellee's Br. at 14. In United States v. Hegwood, 977 F.2d 492 (9th Cir. 1992), defense counsel failed to object to the court's initial definition of the crime of conspiracy. Id. at 495. The definition that the court gave did not inform the jurors that an intent to commit the substantive crime was an element of the conspiracy. However, the court's final instructions _________________________________________________________________ 6. In Jackson, the defendant was convicted in a bench trial. Thus, the Court was not considering the effect of an erroneous reasonable doubt standard on a lay jury. Nevertheless, as the dissent quite correctly notes, the language of Jackson is relevant to our discussion. 21 did inform the jury of that element. On appeal, the erroneous initial instruction was reviewed for plain error. The court relied upon Ignacio to hold that, absent exceptional circumstances, "[w]here the instruction challenged is given at the beginning of trial, reversal is unwarranted unless the defendant can prove prejudice or that the jury was materially misled." Id. The court then stated that no exceptional circumstances existed and it therefore would not assume that the jurors failed to follow the correct instruction. It was the only instruction they had on whether the government had to prove intent to commit the substantive offense. The court reasoned that [i]t stretches credulity to think that the jury disregarded the instruction they had just been given because it included an element that had not been mentioned earlier. Id. (citing Franklin, 471 U.S. at 322)). The situation here is far more problematic than an inquiry into whether providing a missing element cured its earlier omission. Indeed, our situation is more akin to the problem in Franklin, supra. There, a defendant was charged with murder in connection with a fatal shooting that occurred after he had escaped from state custody. The defendant's sole defense was that the gun had accidentally discharged. The trial judge instructed the jury that one is presumed to intend the natural consequences of his or her actions, but that the presumption may be rebutted. The court also informed the jury that the defendant was presumed innocent, and that the prosecution had the burden of proving each element of the crime charged beyond a reasonable doubt. Following his conviction, the defendant appealed alleging that the court's charge had improperly shifted the burden of proof to him, and that the language in the charge clarifying the burden of proof did not cure the infirmity. The Supreme Court agreed. A reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption and ignore the prohibition of presumption. Nothing in these specific sentences or 22  in the charges as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict. Franklin, 471 U.S. at 322 (emphasis added). That is precisely our situation. Indeed, our situation is worse because in the initial instruction the District Court suggested that jurors would derive little guidance from the definition that would be given at the end of the trial. Jurors who may have been confused by the more abstract traditional charge may well have relied upon the court's earlier assessment of the definition, and adopted the more easily understood standard of what you feel "in your heart and soul" to determine if the defendant's guilt had been proven beyond a reasonable doubt. The dissent believes that the initial instructions"were really comments rather than instructions . . . ," and concludes that they were not sufficient to create a reasonable likelihood of prejudice under Victor v. Nebraska, especially since they were immediately followed by a curative instruction. Dissent at 31. However, nothing in this record suggests that lay jurors drew this fine distinction, or that they were even aware of it. Moreover, the jury was never instructed to ignore the substantive portion of the court's initial instructions in determining the meaning of reasonable doubt. We do not suggest that the problems created by the initial instruction could not have been cured. Rather, we hold that the instructions taken as a whole (including the clarification) were not adequate to "unring" the bell. The clarification stressed the importance of the concept of reasonable doubt, and emphasized that it was not an "ephemeral" concept. However, it did not provide an accurate definition of the term, or instruct jurors to rely exclusively upon the written definition they would receive at the end of the trial. When the jurors finally heard the correct definition they had been forewarned that the definition they were hearing was less helpful than the prior erroneous explanation of what the term meant. 23 We are also unconvinced by the government's reliance upon United States v. Dilg, 700 F.2d 620 (9th Cir. 1981). See Appellee's Br. at 15-6. In Dilg, two juries were selected simultaneously. One was to hear Dilg's case, and the other was to be "on deck" to hear a trial that would start after Dilg's was finished. After both juries were selected, the judge gave general instructions that included instructions as to the presumption of innocence. Dilg's jury was then sworn, and the other jury was excused until later in the week.7 At the conclusion of Dilg's trial the court gave a formal charge that informed the jury of the government's burden of proving every element beyond a reasonable doubt, but did not mention the presumption of innocence. On appeal the defendant argued that this omission required a new trial. The prosecution countered that the jurors had been informed of the presumption of innocence in the court's general comments before trial and this cured the omission. The court of appeals disagreed. There was no indication that the preliminary instructions were intended as the sole source of any aspect of the law by which the case was to be decided. To make matters worse, at no time during the instructions given at the close of the trial did the judge refer back to the pre-trial instruction given on the presumption of innocence. Dilg, 700 F.2d at 625. Here, it is clear that the initial instructions were not intended to be the "sole source" of the law the jury was to apply. Although the final charge did not "refer back to the court's preliminary comments," Appellee's Br. at 15, it did not have to. The seed had already been planted, and nothing in the final charge diminished the fertility of that seed. The government urges us to adopt a rule giving thefinal charge more weight than instructions given during the course of the trial because it was given immediately before _________________________________________________________________ 7. Because we find that the instructions given during voir dire were not erroneous we need not decide the effect of an erroneous instruction that is given before jurors are sworn. 24 deliberations, and the initial instructions were muted by the passage of time having been given earlier in the trial. See Appellee's Br. at 15. We refuse to adopt a rule that would judge the significance of a preliminary jury instruction by the length of the trial absent instructions from the trial court that would cause jurors to place more weight on the final charge than instructions given during the course of the trial. We will not assume that jurors, contrary to their oath, ignored part of the judge's initial instruction simply because it came early in the trial.8 "The [law] presumes that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them." Franklin, 471 U.S. at 324. We will not now hold that the importance of a jury instruction is determined by its proximity to the end of the trial. Similarly, we disagree with the dissent's assessment of the importance of "one sentence in an overview that covers eight pages." Dissent at 32. Clearly, one sentence can not be viewed out of context with the totality of the judge's instructions. Neither can that one sentence be ignored when viewing the eight pages of which it is a part. Thus, we can not agree that our holding is based upon "unfounded speculation that the jurors disregarded clear instructions." Dissent at 33 (citing United States v. Newby, F.3d 1143, 1147 (3d Cir. 1993).9 Rather, this conviction can stand only if we engage in unfounded speculation that jurors followed the proper written instruction despite the court's statement that it was not going to help them. See Franklin, 471 U.S. at 322 ("[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict."). Here, the jury was given two explanations of reasonable doubt. One was incorrect, and one was not. Due Process does not allow us to guess which _________________________________________________________________ 8. Moreover, we note that this trial only lasted four days. 9. In Newby, the curative instruction as to improperly admitted evidence "was clear and effective," and the evidence in question was, "at most cumulative." Id. at 1146. Here, the curative instruction was neither clear nor effective, and the error requiring a curative instruction was far more serious. 25 definition the jurors adopted so long as there is a reasonable likelihood it chose the wrong one. Victor, 511 U.S. at 6. We hold only that, given the totality of the unique circumstances here, that reasonable likelihood exists. The government's position to the contrary is rooted in the axiom that jury instructions must be viewed in their entirety, and a series of cases that have reaffirmed that principle. See United States v. Isaac, 134 F.3d 199 (3d Cir. 1998); United States v. Pine, 609 F.2d 106 (3d Cir. 1979); United States v. Smith, 468 F.2d 381 (3d Cir. 1972). Accordingly, the government relies upon Hegwood, to argue that "even assuming arguendo that the court's preliminary instructions were faulty, they were outweighed and indeed cured by the court's correct final charge." Appellee's Br. at 14. The government contends that the instructions, taken as a whole, adequately conveyed the concept of reasonable doubt and that there was, therefore, no reasonable likelihood that the jury understood the standard of conviction to be less than beyond a reasonable doubt. However, as noted above, "[l]anguage that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity." Franklin, 471 U.S. at 322. Thus, although the soundness of the principle underlying the government's argument is beyond dispute, we do not think it cures the infirmity in the initial instruction. Accordingly, we conclude that there is a reasonable likelihood that jurors utilized an improper definition of reasonable doubt and convicted the defendant not because the government proved its case beyond a reasonable doubt as that term is properly understood, but because the jurors "felt" the defendant was guilty.10 _________________________________________________________________ 10. Our holding today is not intended to discourage the very common practice of providing jurors with preliminary remarks to assist them during the course of the trial. We only hold that when such preliminary instructions are given, jurors must not be allowed to guess at which of two conflicting instructions control their deliberations. This can be avoided by simply informing jurors which instructions control in the event they perceive a conflict between something they are told during the course of the trial, and something contained in the formal instructions that will follow the close of the evidence. 26 V. For the reasons set forth above, the judgment of conviction will be reversed, and the matter will be remanded to the District Court for further proceedings consistent with this opinion. 27 RENDELL, Circuit Judge, Concurring: I join in the thorough analysis, and result reached, by my colleague, but write briefly only to offer an additional practical reason as to why the purported cure by the District Court judge was not an adequate fix. I have great faith in jurors, but think it asks too much to expect them to cast aside the court's initial instruction that reasonable doubt is incapable of definition and is based on what you feel inside, when later they are told its more analytic underpinnings. It strikes me as an exceedingly difficult if not impossible task. If students of film were told before viewing afilm that there are no set rules for assessing a film and they should trust their heart and soul, then later, after viewing it, they are told to comment on it using a "reasoned" approach, will they not cling nonetheless to the impressions formed throughout the viewing based on their emotional reaction? I think we are naive if we think not. Reasonable doubt is difficult enough without the confusion evident on this record. Can we trust that a juror who adheres to the judge's instruction and determines in her heart and soul that the defendant is probably guilty will be able to perform the mental gymnastics to replace all she has observed and felt with a reasoned weighing of the government's case (assuming she has made the effort to do so in the face of initial instructions that the later definition will be of little help)? I am dubious. While it is true that a trial court's guidance as provided in most preliminary instructions will pale in significance as compared to the final dictates given, that is not the case if the particular instruction guides the jury's perceptions and observations as much as, or even more than, their ultimate decision making. Further, I do not agree with our dissenting colleague that our holding that this particular miscue was not cured poses any threat to the concept of cure beyond the limits of this unique fact pattern. 28 SLOVITER, Circuit Judge, Dissenting: I approve and join in Parts I, II and III of the majority's opinion. I dissent from Part IV because I do not agree that we should reverse a conviction when, as we all agree, the trial court gave the jury complete and accurate instructions on reasonable doubt before the jury deliberated. The majority overturns the conviction on the basis of language with which the District Court described reasonable doubt in preliminary comments made to the jury before they heard opening statements or evidence. However, in light of the majority's concession that there was no error in the instruction on reasonable doubt when it was included in the charge that was given to the jury four days later, immediately before the jury proceeded to deliberate, the effect of the majority's decision is to elevate those preliminary comments to incurable error. In my view, the majority's result is serious error, both because in the circumstances here the erroneous instructions, if any, were cured and because, as a general principle, incurable error is limited to grievous faults. I. The trial of Julio Hernandez began on February 4, 1998, on a three-count superseding indictment charging (count 1) conspiracy to obstruct, delay and affect commerce and the movement of commodities in commerce by robbery of a tractor-trailer and the contents thereof, in violation of 18 U.S.C. S 1951(a); (count 2) obstructing, delaying and affecting commerce and the movement of articles and commodities in commerce by robbery, and threatening physical violence to a person in furtherance of a plan to rob a tractor-trailer and its contents, in violation of 18 U.S.C. SS 1951(a) and 2; and (count 3) receiving and possessing with the intent to convert to his own use goods and chattel, namely 494 cases of cigarettes valued at over $250,000 that had been embezzled and stolen from a motortruck and were moving as part of an interstate shipment, in violation of 18 U.S.C. SS 659 and 2. The jury received comments and/or instructions from the trial judge on reasonable doubt on three separate 29 occasions. The first occasion was on February 4 during what the majority characterizes as the "voir dire instruction." Hernandez contends that because the court stated in the course of those comments that the jurors would have to use their sense of "what sounds likely" in evaluating the evidence, he was entitled to a new trial. The majority rejects Hernandez's contention and concludes that there was no error in the remarks made by the District Court at that time. The third occasion was the formal jury charge, given to the jury orally and in writing on February 13, before it proceeded to deliberate. The defendant does not challenge the instruction and the majority finds that charge to be without error. That instruction fully incorporates all of the relevant elements of a reasonable doubt charge, which the majority refers to as the "traditional charge" on reasonable doubt. In it, the District Court stated as follows: Now, what is reasonable doubt? Now, I'll try to define that. Reasonable doubt. A reasonable doubt is doubt based on reason and common sense. A reasonable doubt is such a doubt as would cause you to hesitate to act in matters of importance in your own lives. A reasonable doubt may arise from a lack of evidence. It is doubt based on reason, logic, common sense and experience. Reasonable doubt is not vague or hypothetical doubt. It is not speculative, imaginary qualms or misgivings. It is not just an excuse by a juror to avoid the performance of an unpleasant duty. It is not the normal sympathy which one human being may hold for another. It is not necessary for the United States or the Government to prove the guilt of a defendant to a mathematical certainty or beyond all possible doubt. The reason is in this world of ours, it is practically impossible for a person to be absolutely and completely convinced regarding any disputed fact which by its nature is not susceptible of mathematical certainty. Consequently, the law is such that in a criminal case it is sufficient if the proofs establish that a defendant is guilty beyond a reasonable doubt, not beyond all possible doubt. 30  Reasonable doubt is an honest and reasonable uncertainty existing in your mind as to the guilt of the defendant after carefully considering all the evidence. A reasonable doubt may be said to exist in any case when after a careful consideration of all of the evidence the jury would be unwilling to rely upon that evidence unhesitatingly in a matter of importance in its own affairs. App. at 800-02. The majority's decision to reverse Hernandez's conviction thus rests on its conclusion that the remarks made by the District Court on the second occasion, February 9, immediately after the jury was sworn and before the opening statements, which the majority characterizes as "the initial instructions," were such flagrant error as to mislead the jury and be incurable. These remarks are quoted in full in the majority's opinion. What are the majority's objections? The majority focuses on the statement made by the District Court, after it advised the jury that there is no specific definition of reasonable doubt (a patently accurate comment), that "[i]t's what you in your own heart and your own soul and your own spirit and your own judgment determine is proof beyond a reasonable doubt." App. at 175. The majority has two objections: this statement "allows each juror to judge the evidence by a visceral standard unique to that juror, rather than an objective heightened standard of proof applicable to each juror," Majority Opinion at 20, and it "allows jurors to convict based upon their individual gut feeling.' " Id. The majority fails to acknowledge that in those remarks, which were really comments rather than instructions, the District Court emphasized, at the outset of even that initial stage, that "[t]he burden of proof is on the Government. The Government brings the charges. The Government has to prove the charges." App. at 175 (emphasis added). Nor does the majority specify what the jurors were told that might lead them to look to their "gut feelings" rather than the evidence to which the District Court repeatedly referred. 31 If the majority's objection to the language used by the District Court is that it improperly suggests a subjective approach, then the majority is inconsistent with the Supreme Court's articulation of the concept of reasonable doubt as a "subjective state of near certitude," Jackson v. Virginia, 443 U.S. 307, 315 (1979) (emphasis added); see In re Winship, 397 U.S. 358, 364 (1970). The majority's objection to the District Court's"initial instructions" takes those comments out of context. It gives short shrift to the government's argument that these comments were merely meant to give an overview of the trial procedure. An examination of the court's entire presentation at that time reveals that the court was providing precisely that overview. See generally Federal Judicial Center, Benchbook for U.S. District Court Judges 95 (4th ed. 1996) (Preliminary jury instructions "are intended to give the jury, briefly and in understandable language, information to make the trial more meaningful."). The District Court began by explaining the jury's function and role, that witnesses will be called, that there will be interpreters, who the lawyers will be, that the burden of proof is on the Government, the sequence of events, where the jurors could lunch, and the courtroom procedures to be followed. The comment to which the majority objects is one sentence in an overview that covers eight pages. App. at 172-79. The District Court emphasized the preliminary nature of those comments, stating on several occasions that the charge and the instructions would be given to the jury at a later time. Immediately after the language on which the majority focuses, the District Court expressly told the jurors that it would give them "some definitions at the end of the trial when I give the Judge's charge to the jury." App. at 175. Shortly thereafter, the court, continuing its explanation of the sequence of events that would follow, stated that after the lawyer on each side makes a closing argument, "the Judge gives the Judge's charge to the jury. When I do that, I'll give you something written so you can read along with me. That's when I'll define proof beyond a reasonable doubt. I'll define the presumption of innocence, what does that mean. I'll define robbery. I'll define the 32 various terms that you are hearing throughout the trial." App. at 176 (emphasis added). The court's procedure was consistent with common practice, under which the formal instructions containing precise definitions are left for the end of trial, following a formal charge conference. There is no reason to assume that the jurors were unaware that the formal instructions and definitions, including that for reasonable doubt, would be given later in light of the District Court's clear statements to that effect. Just as we assume that jurors follow the accurate, formal instructions of the court, see Opper v. United States, 348 U.S. 84, 94 (1954) ("To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions."); United States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993) (jury presumed to follow curative instructions regarding stricken evidence absent "overwhelming probability" jury was unable to follow it), we should assume that the jurors here listened to the judge's preliminary instructions regarding when and how they would receive their formal ones. Even were this not enough to show that there was no prejudicial error from the court's overview at the beginning of the trial, this conclusion is reinforced by the District Court's clarification of the import of the earlier language as soon as counsel objected. At sidebar, defense counsel stated: I'm also objecting to the Court's lack of definition of burden of proof as far as reasonable doubt is concerned as something you feel inside which suggests they can go with some sort of a gut or bias or prejudice or some feeling about the case, while beyond a reasonable doubt is the highest burden we have in our system of justice. App. at 182. Contrary to the majority's suggestion that what it regards as the infirm instruction was not corrected, but merely contradicted by the final charge, the District Court took 33 steps almost immediately in response to counsel's objection. After reviewing the indictment with the jury, the court stated as follows Now, I have told you proof beyond a reasonable doubt will be defined in my charge, just as I will explain at greater length presumption of innocence. Because I refer to the fact that proof beyond a reasonable doubt has no accurate measuring rod, I don't want you to think that it is so ephemeral that it's meaningless or so subjective that it's an unworthy concept. It is a very important concept. It's indeed the backbone of the criminal law that proof must be convincing to a jury as to the guilt of a defendant beyond a reasonable doubt. And you will have to analyze the proofs so as to decide in your own mind: Was this proven beyond a reasonable doubt? App. at 191. In light of the prompt correction to the remarks that the majority finds objectionable, the court's emphasis to the jury that the instruction on reasonable doubt would be given later (and in writing), and the majority's acknowledgment that the final instructions on reasonable doubt were not objectionable, I believe that there is no reasonable likelihood that the jurors were misled to use an improper definition of reasonable doubt in finding Hernandez guilty. I believe the majority's reversal of a conviction based on its view that the court's preliminary remarks were incurable is out of step with the precedent. Underlying our jurisprudence is recognition that error will occasionally be made, even error of constitutional magnitude, but that most error either can be cured through an instruction or has not prejudiced a defendant's right so substantially that the conviction must be reversed. See generally Donnelly v. DeChristoforo, 416 U.S. 637, 644 (1974) ("Although some occurrences at trial may be too clearly prejudicial for . . . a curative instruction to mitigate their effect, the [prosecutor's comment that defendant hoped to be convicted of a lesser charge] is hardly of such character."); United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 34 1995) (en banc) ("In determining prejudice, we consider the scope of the objectionable [prosecutorial] comments and their relationship to the entire proceeding, the ameliorative effect of any curative instructions given, and the strength of the evidence supporting the defendant's conviction."); Newby, 11 F.3d at 1146 ("[W]e presume that the jury will follow a curative instruction [regarding stricken evidence] unless there is an `overwhelming probability' that the jury will be unable to follow it and a strong likelihood that the affect of the evidence would be `devastating' to the defendant." [citations omitted]); United States v. Menichino, 497 F.2d 935, 945 (5th Cir. 1974) ("[A]ny harm done by the [mid-trial] charge was vitiated by the later proper and curative instructions."). To evaluate a claimed error in a jury instruction, as in this case, an appellate court must look to the charge as a whole. See Victor v. Nebraska, 511 U.S. 1, 5 (1994). There was extensive analysis of two reasonable doubt instructions by the Supreme Court in Victor, where the petitioners challenged their reasonable doubt instructions. In one case, the petitioner challenged the charge that defined reasonable doubt in terms of "moral evidence" and "moral certainty," but the Court, although not condoning use of those terms, nevertheless concluded that they neither suggested a standard of proof lower than required by due process nor allowed conviction on factors extraneous to the government's proof. Id. at 16. In the other case, the Court held that the instruction that a reasonable doubt is "not a mere possible doubt" also did not require reversal because other language in the instruction made clear the meaning of that instruction. Similarly, the Court, while agreeing that the trial court's equating of a reasonable doubt with a "substantial doubt" was problematic, nonetheless concluded that "taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury." Id. at 22. It is significant that Justice O'Connor, speaking for the Court in Victor, pointed out that "in only one case have we held that a definition of reasonable doubt violated the Due Process Clause." Id. at 5. In the case to which she referred, Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), the 35 Court held that an instruction defining a reasonable doubt to be "an actual substantial doubt" was fatally defective because it suggested a higher degree of doubt than is required for acquittal under the reasonable doubt standard. Id. at 41. Certainly, the alleged error here in the court's preliminary, overview remarks is in no way equivalent with that in Cage, particularly as the error, if any, was followed by a prompt cure and, ultimately, a fully correct charge. The majority suggests that the decision in Francis v. Franklin, 471 U.S. 307 (1985), may be analogous to this case. Not so. The instructions in Franklin were not defective because of the reasonable doubt portion of the charge but because the instruction on intent effected a mandatory presumption in violation of the Fourteenth Amendment's requirement that the state prove every element of a criminal offense. In fact, in Holland v. United States, 348 U.S. 121 (1954), the Court, in considering the petitioner's challenge to a reasonable doubt charge in a federal criminal trial, agreed that there were problems with the charge, which"should have been in terms of the kind of doubt that would make a person hesitate to act . . . rather than the kind on which he would be willing to act. . . ," but nevertheless declined to reverse, noting "the instruction as given was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some." Id. at 140. Similarly, in this case, I see no basis to conclude that the court's initial comments to the jury in an overview of the procedure that was to take place could have misled the jury. Although the court may not have adopted the most felicitous expression in its overview, both the curative instruction and the final charge were correct. The District Court's final jury instructions emphasized that"[a] defendant is never to be convicted on mere suspicion or conjecture"; "[r]easonable doubt is not vague or hypothetical doubt"; "[i]t is not speculative, imaginary qualms or misgivings." App. at 801. Those final instructions correctly conveyed the meaning of reasonable doubt and adequately neutralized whatever misleading effect may have been caused by the "what you feel inside" language in the remarks some four days earlier. 36 Our zealousness to insure that a defendant has had a fair trial and that justice has been done does not mean that every error, although corrected, must lead to reversal. In this case, I disagree with my colleagues that a small portion of the trial court's initial comments, which were promptly corrected and later neutralized by the final charge, requires reversal of Hernandez's conviction. I therefore respectfully dissent. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit 37 

United States Court of Appeals for the Federal Circuit ______________________ JAPANESE FOUNDATION FOR CANCER RESEARCH, Plaintiff-Cross-Appellant, v. MICHELLE K. LEE, Deputy Director, U.S. Patent and Trademark Office, in her official capacity as Deputy Under Secretary of Commerce for Intellec- tual Property AND UNITED STATES PATENT AND TRADEMARK OFFICE, Defendants-Appellants. ______________________ 2013-1678, 2014-1014 ______________________ Appeals from the United States District Court for the Eastern District of Virginia in No. 1:13-CV-00412-AJT- TRJ, Judge Anthony J. Trenga. ______________________ Decided: December 9, 2014 ______________________ MICHAEL J. LOCKERBY, Foley & Lardner LLP, of Washington, DC, argued for plaintiff-cross-appellant. ADAM C. JED, Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, argued for defendants-appellants. With him on the brief were STUART F. DELERY, Assistant Attorney General, 2 JAPANESE FOUNDATION v. LEE DANA J. BOENTE, Acting United States Attorney; and NATHAN K. KELLEY, Solicitor, United States Patent and Trademark Office. Of counsel were MARK R. FREEMAN, Attorney, and DAVID MOSKOWITZ, United States Attor- ney’s Office, of Alexandria, Virginia. ______________________ Before PROST, Chief Judge, DYK and TARANTO, Circuit Judges. PROST, Chief Judge. The United States Patent and Trademark Office (“PTO”) appeals from the decision of the United States District Court for the Eastern District of Virginia grant- ing the Japanese Foundation for Cancer Research’s (“the Foundation”) cross-motion for summary judgment that the PTO acted arbitrarily and capriciously, and abused its discretion, when it refused to withdraw the terminal disclaimer on U.S. Patent No. 6,194,187 (“’187 patent”). For the reasons stated below, we reverse. I The ’187 patent was issued and assigned to the Foun- dation on February 27, 2001. On October 11, 2011, the Foundation’s attorney of record responsible for the prose- cution of the ’187 patent filed a statutory disclaimer pursuant to 37 C.F.R. § 1.321(a) with the PTO, disclaim- ing “the entire term of all claims in U.S. Patent 6,194,187” and requesting that the disclaimer be “duly recorded.” J.A. 894. On December 13, 2011, the Foundation’s attor- ney of record filed a petition under 37 C.F.R. § 1.182 to withdraw the statutory disclaimer. The petition indicated that the disclaimer “was not filed in the context of any litigation or an assertion of double patenting,” and that the disclaimer had not yet been made public by either the Foundation or the PTO, as it had not yet been entered into the PTO’s electronic Patent Application Information Retrieval (“PAIR”) database or the paper prosecution file. JAPANESE FOUNDATION v. LEE 3 J.A. 900. The PTO issued a decision denying the Founda- tion’s petition on January 17, 2012. According to the PTO’s decision, the petition indicated that the Foundation’s filed disclaimer included all of the information as well as the fee required pursuant to 37 C.F.R. § 1.321(a). J.A. 928. The PTO also noted that “[t]here is no indication that the power of attorney was revoked or withdrawn,” and thus the attorney of record “appears to be a proper party to file the statutory dis- claimer.” J.A. 928-29. The PTO explained that the statu- tory mechanisms available to correct a patent “are not available to withdraw or otherwise nullify the effect of a recorded terminal disclaimer,” and that the PTO’s estab- lished policy was to deny any “request to withdraw or amend a recorded terminal disclaimer in an issued patent on the grounds that the rules of practice and 35 U.S.C. § 253 do not include a mechanism for withdrawal or amendment of such a terminal disclaimer.” J.A. 929. The PTO concluded by noting that even though the disclaimer had not been “fully processed” the “patent owner freely dedicated to the public the entire term” of all the patent’s claims when the disclaimer was filed. Id. The Foundation’s terminal disclaimer subsequently appeared in the ’187 patent’s prosecution file on the electronic PAIR database. On February 27, the Founda- tion filed a petition under 37 C.F.R. §§ 1.182 and 1.183 asking the PTO to withhold publication of the terminal disclaimer in the Official Gazette, and indicating that it would file a request for reconsideration, which it filed on March 16. (The Foundation asked in the alternative for relief under 37 C.F.R. §§ 1.182 and 1.183 “to invoke the discretion of the director and suspend the rules.”). In August, the Foundation’s attorney of record met with the PTO and, following that meeting, filed a supplemental petition addressing its argument concerning whether the PTO had the inherent authority to grant the relief the Foundation requested. 4 JAPANESE FOUNDATION v. LEE The Foundation’s March petition described what the Foundation characterized as “newly revealed information” and “newly discovered evidence.” J.A. 976. This included signed declarations from a number of personnel associat- ed with one of the ’187 patent’s Japanese licensees, Kyowa Hakko Kirin, Inc. (“KHK”), and KHK’s Japanese patent counsel, Kyowa Law Group (“Kyowa Law”). 1 According to the declarations and the Foundation’s peti- tion, the following series of events preceded the Founda- tion’s attorney of record’s filing of the statutory disclaimer. First, on March 8, 2011, KHK’s in-house counsel con- tacted a paralegal at Kyowa Law to inquire as to whether a patent may be abandoned or disclaimed before it lapsed because of non-payment of the next maintenance fee. The paralegal’s declaration states that she contacted her “boss” and together they “conducted research which indicated that a disclaimer could be filed under U.S. statutory and regulatory provisions.” J.A. 963. Then, the next day, March 9, the paralegal declares that she sent a letter by fax to the Foundation’s attorney of record’s law firm, Foley & Lardner LLP (“Foley”), which reads, in relevant part, as follows (below the subject line “Re: U.S. Patent No. 6,194,187” and dated March 9): Dear Sirs: Our clients would like to abandon the captioned patent positively and invalidate this patent before the case lapses by non-payment of the next maintenance fees, which will be due on August 27, 2012. 1 Despite sharing the name “Kyowa,” the licensee and its counsel are unrelated entities. JAPANESE FOUNDATION v. LEE 5 Would you please let us have the necessary forms and/or information for the procedure of positive abandonment, preferably by March 15, 2011. We would appreciate your immediate reply by re- turn facsimile. J.A. 967. The paralegal’s declaration further states that after the March 11 earthquake and subsequent tsunami in Japan, her work “reporting and following up the pro- gress of the disclaimer was adversely affected by the long lasting irregular and abnormal situation after the Earth- quake.” J.A. 964. She explained this was why she did not send a copy of the March 9 letter to KHK or otherwise inform KHK of its contents. Id. Then, on October 11, the Foundation’s attorney of record filed the terminal dis- claimer at the PTO. The paralegal’s declaration goes on to state that she received a copy of the filed terminal disclaimer from the Foundation’s attorney of record on November 29, 2011, and then reported it to KHK. Id. The next day, she was informed by KHK instructing Kyowa Law to “urgently ask Foley to restore the patent.” Id. (The Foundation’s attorney of record subsequently filed the aforementioned December 2011 petition.) The Foundation’s petition also included a declaration from the Executive Director of the Foundation stating inter alia, that the Foundation neither requested nor authorized the disclaimer. J.A. 969. The petition also included a declaration from the individual “in charge of patents regarding biotechnology at KHK” stating that KHK did not have the authority to disclaim the patent, and that the declarant did not instruct nor authorize any action leading to the ’187 patent’s disclaimer. J.A. 970. The in-house patent counsel for KHK who originally communicated with the paralegal at Kyowa Law also provided a declaration, stating that the request was not for the disclaimer of the ’187 patent but rather a question about “whether it was possible to actively disclaim a U.S. 6 JAPANESE FOUNDATION v. LEE patent, rather than allow it to lapse by non-payment of maintenance fees.” J.A. 973. The Foundation’s March petition and August supple- ment argued that in light of the aforementioned “new and extraordinary facts,” the disclaimer was erroneous and unauthorized, and, therefore, the PTO had the inherent authority to withdraw it. J.A. 982. On February 22, 2013, the PTO issued a final agency decision denying the Foundation’s petition. J.A. 990-1001 (“Final Decision”). 2 The Foundation thereafter filed an action in district court appealing the PTO’s decision under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551. The PTO subsequently agreed to withhold publication of the ’187 patent’s disclaimer in the Official Gazette. In May, the PTO and the Foundation filed cross motions for summary judgment. The district court granted the Foun- dation’s motion and denied the PTO’s motion. It directed the PTO “to withdraw the disclaimer, absent a finding that the Foundation actually authorized its filing.” Japa- nese Found. for Cancer Research v. Rea, No. 13-412, 2013 WL 3894156, at *10 (E.D. Va. July 26, 2013) (“District Court Op.”). The PTO appeals. The Foundation’s APA claim raises “a substantial question under the patent law.” Helfgott & Karas, P.C. v. Dickinson, 209 F.3d 1328, 1334 (Fed. Cir. 2000). Accordingly, we have jurisdiction under 28 U.S.C. § 1295(a)(1). 2 The final agency decision, as well as all the vari- ous petitions and filings concerning the ’187 patent, is contained in the prosecution file, which is available on the Internet through the PTO’s electronic PAIR database at http://portal.uspto.gov/pair/PublicPair. JAPANESE FOUNDATION v. LEE 7 II We review the district court’s grant of summary judgment de novo, applying the same standard as the district court. Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004). Under the APA, we set aside an agency’s action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 3 “Under the arbitrary and capricious standard the scope of review is a narrow one.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). In particular, “the court is not empowered to substitute its judgment for that of the agency.” Id. To the extent that the PTO’s decision relied on statutory inter- pretation, “[t]his court reviews questions of statutory interpretation without deference.” Liesegang v. Sec’y of Veterans Affairs, 312 F.3d 1368, 1372 (Fed. Cir. 2003). An agency abuses its discretion “where the decision is based on an erroneous interpretation of the law.” Burandt v. Dudas, 528 F.3d 1329, 1332 (Fed. Cir. 2008). Otherwise, an agency acts arbitrarily or capriciously only if the decision was not based on the relevant factors or it fails to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). 3 The Foundation argues that the PTO’s decision should be reviewed under an “abuse of discretion” stand- ard that is somehow less deferential than “arbitrary and capricious.” However, we generally review agency deci- sions pursuant to the APA § 706(2)(A) using the terms “abuse of discretion” and “arbitrary and capricious” inter- changeably, as indicated by the plain text of the statute. See, e.g., Helfgott, 209 F.3d at 1334-35. 8 JAPANESE FOUNDATION v. LEE A On appeal, the Foundation argues that the PTO has the authority to issue a certificate of correction for the ’187 patent to withdraw the terminal disclaimer under the statute that governs such certificates, 35 U.S.C. § 255. This statutory section provides that a certificate of correction may be issued “[w]henever a mistake of a clerical or typographical nature, or of minor character, which was not the fault of the Patent and Trademark Office, appears in a patent and a showing has been made that such mistake occurred in good faith . . . if the correc- tion does not involve such changes in the patent as would constitute new matter or would require re-examination.” 35 U.S.C. § 255. The Foundation did not ask for relief pursuant to § 255 in its petition to the PTO. However, it argues that it did not waive this ground for relief because it would have been futile to raise it, due to the PTO’s established policy. In particular, the Manual of Patent Examining Procedure (MPEP) provides that “[a] mistake in filing a terminal disclaimer does not fall within any categories of mistake for which a certificate of correction of applicant’s mistake is permissible.” MPEP § 1490. In support of its position that § 255 is available as a mechanism for withdrawing a mistakenly filed terminal disclaimer, the Foundation cites the disclaimer at issue in Carnegie Mellon Univ. v. Schwartz, 105 F.3d 863 (3d Cir. 1997). Carnegie Mellon, which was a malpractice case, describes the circumstances by which the patentee’s attorney of record mistakenly entered the serial number and filing date of an issued patent, rather than the appli- cation for which he had intended to file a disclaimer, and filed it with the PTO. Id. at 865. The PTO subsequently granted his petition to withdraw the disclaimer and issued a certificate of correction, indicating that all refer- ences to the disclaimer in the notice of disclaimer at- JAPANESE FOUNDATION v. LEE 9 tached to the patent and published in the Official Gazette should be deleted. Id.; see also U.S. Patent No. 4,767,708. The Foundation argues that the facts of Carnegie Mellon indicate that a certificate of correction may be used to effect the withdrawal of a terminal disclaimer on an issued patent and, moreover, that its filing of the dis- claimer on the ’187 patent analogously represented a “clerical or typographical error” that occurred in “good faith” as required by § 255. As an initial matter, the PTO’s policy in fact does acknowledge the possibility of correcting a terminal disclaimer in the scenario that the Foundation argues was described in Carnegie Mellon. To wit: Where a terminal disclaimer was submitted to overcome a nonstatutory double patenting rejec- tion (made during prosecution of an application which has now issued as a patent), and the num- bers for the patent being disclaimed in the termi- nal disclaimer were inadvertently transposed (e.g., 6,444,316 written as 6,444,136), a petition under 37 CFR 1.182 may be filed to withdraw the terminal disclaimer with the incorrect (trans- posed) patent number (recorded in the issued pa- tent), and replace it with a corrected terminal disclaimer having the correct patent number. In this instance, the inadvertency is clear from the record. MPEP § 1490 (emphasis added). This paragraph follows a description of the related situation in which a terminal disclaimer identifies “the wrong target application or patent,” and in which the PTO undertakes an office action that “make[s] it clear that ‘the second terminal disclaimer replaces the first terminal disclaimer, and the first termi- nal disclaimer is thus void.’” Id. Indeed, the PTO’s decision on the Foundation’s peti- tion noted this rule of practice, contrasting it with the 10 JAPANESE FOUNDATION v. LEE Foundation’s request to simply withdraw a recorded disclaimer on an issued patent. Final Decision at 6, n.4. 4 Importantly, in the hypothetical scenarios described in the MPEP, the patentee sought to file a terminal dis- claimer but indicated the wrong target patent or applica- tion. The Carnegie Mellon disclaimer, for example, indicated the number of a patent that was related to the patent application that was the intended target. Carne- gie, 105 F.3d at 865. There, the relief accorded by the PTO only nullified the terminal disclaimer on the wrongly identified patent, while then enforcing the terminal disclaimer on the intended patent or application. Here, the Foundation has not identified an error in the patent number or application that is apparent on its face—like a transposed number or the number of a related patent— which would entail redirecting the disclaimer to the correct target. It instead claims that the filing of the disclaimer was itself the “clerical or typographical error” that may be corrected under § 255. The Foundation’s argument here is that, first, “cleri- cal or typographical error” in the statute should be read disjunctively, such that § 255 is operative where there is a “clerical error.” Second, the Foundation argues that since the terminal disclaimer was filed due to the mistake of 4 During oral argument, the PTO’s counsel suggest- ed that the Vectra decision, which issued after Carnegie Mellon and emphasized the importance of the “finality and certainty” of disclaimers as filed, called into question whether a certificate of correction may still be available under these circumstances. See Vectra Fitness, Inc. v. TNWK Corp., 162 F.3d 1379, 1383 (Fed. Cir. 1998) (“This court has interpreted the term ‘considered as part of the original patent’ in section 253 to mean that the patent is treated as though the disclaimed claims never existed.”); accord Guinn v. Kopf, 96 F.3d 1419, 1422 (Fed. Cir. 1996). JAPANESE FOUNDATION v. LEE 11 Kyowa Law’s paralegal, the mistaken filing constitutes a “clerical error” because she was a clerical employee per- forming clerical work. This reading of the statute is not only strained but also lacks support in case law, including those cases cited in the Foundation’s briefing. The Foundation argues that in our previous decision interpreting “clerical or typographical error” in § 255, we defined “clerical” as “relating to an office clerk or office work” and “typographical” as “relating to the setting of type, printing with type, or the arrangement of matter printed from type.” Superior Fireplace Co. v. Majestic Prods. Co., 270 F.3d 1358, 1369-70 (Fed. Cir. 2001). However, in that case, while we noted these separate definitions, we went on to interpret the combined phrase as a whole within the context of § 255, holding that “cleri- cal or typographical mistakes are generally understood to include simple mistakes such as obvious misspellings that are immediately apparent.” Id. An erroneous identifica- tion of a patent number, as in Carnegie Mellon, represents the outer edge of such an error, in which a patent applica- tion number was transposed with a related patent num- ber. However, this definition of “clerical or typographical error” applies only to an error that appears on the face of the document, as opposed to the filing of the document itself. To further support its reading of “clerical error,” the Foundation points to our interpretation of the term in the context of 19 U.S.C. § 1520(c)(1), a provision involving refunds of customs duties and fines from the U.S. treas- ury. In that context, we held that a “clerical error” arises when a subordinate acts contrary to binding instructions, distinguishing the subordinate from one whose duty involves exercising “original thought or judgment.” Ford Motor Co. v. United States, 157 F.3d 849, 860 (Fed. Cir. 1998). Setting aside whether this reading would apply to Kyowa Law’s paralegal, the terminal disclaimer in this case was actually filed by the Foundation’s attorney of 12 JAPANESE FOUNDATION v. LEE record. Indeed, the PTO’s rules require that terminal disclaimers be signed by “the patentee, or an attorney or agent of record.” 37 C.F.R. § 1.321(a)(1). Therefore, even if the Foundation’s reading of “clerical error” was correct, it would be impossible for a subordinate who lacks the duty of exercising judgment to file a valid terminal dis- claimer on his own. In sum, there is no basis for withdrawing the terminal disclaimer on the ’187 patent by means of a certificate of correction under § 255. 5 B The Foundation also argues, as the district court held, that the PTO has the inherent authority to withdraw a mistakenly filed terminal disclaimer and should have exercised its discretion to do so here. As an initial matter, the Foundation argues that the PTO erred by failing to account for the fact that the terminal disclaimer was not yet recorded, because it had not been placed in the ’187 patent’s paper or electronic prosecution file at the time of its first petition, nor was it published in the Official Gazette. The Foundation sub- mits that this is important because the statute governing patent disclaimers provides that a “disclaimer shall be in writing, and recorded in the Patent and Trademark Office.” 35 U.S.C. § 253 (emphasis added). However, we have held that “nothing in the statutes or regulations requires any action by the PTO for a disclaimer to be ‘recorded.’” Vectra Fitness, Inc. v. TNWK Corp., 162 F.3d 1379, 1382 (Fed. Cir. 1998). Therefore, a disclaimer is considered to be “recorded” on the date that it was filed, as long as it was “received by the PTO in proper form and 5 The district court also agreed with the PTO that § 255 did not authorize the disclaimer’s withdrawal. See District Court Op., 2013 WL 3894156, at *7 n.12. JAPANESE FOUNDATION v. LEE 13 with the appropriate filing fee,” regardless of any delay in its processing by the PTO. Id. The Foundation attempts to limit Vectra to its facts because, in that case, the pa- tentee was seeking to reissue broad patent claims that were previously disclaimed, which we noted “would ne- gate the finality and certainty of the disclaimer.” Id. at 1384. But we did not so limit our holding in Vectra. Rather, we squarely indicated that our conclusion was based on interpreting the text of § 253 and 37 C.F.R. § 1.321, the regulation that sets forth the requirements for a terminal disclaimer to be recorded. Id. at 1382. Therefore, whether the PTO had finished processing the ’187 patent’s disclaimer before the Foundation’s petition has no bearing on whether the PTO could or should have withdrawn it. The first question, then, is the scope of the PTO’s au- thority, if any, to withdraw an effectively recorded dis- claimer. We have held that “administrative agencies possess inherent authority to reconsider their decisions, subject to certain limitations, regardless of whether they possess explicit statutory authority to do so.” Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360 (Fed. Cir. 2008). This principle is reflected in the PTO’s regulations that allow the review of petitions in “situa- tions not specifically provided for” in its regulations and, moreover, provide that “any requirement of the regula- tions in part which is not a requirement of the statutes” may be waived “[i]n an extraordinary situation.” 37 C.F.R. §§ 1.182, 1.183. Indeed, the Foundation petitioned the PTO for relief pursuant to these regulations. The PTO’s denial of the Foundation’s petition ex- pressed its position that, as to terminal disclaimers recorded under § 253, there was no administrative deter- mination for it to reconsider. Final Decision, at 7. Ac- cording to the PTO, the only “determination” is whether the disclaimer satisfied the requirements of 37 C.F.R. § 1.321(b), i.e., was signed by the applicant or an attorney 14 JAPANESE FOUNDATION v. LEE or agent of record, stated the applicant’s ownership inter- est and what portion of the term was being disclaimed, and was accompanied by a fee. Indeed, the PTO indicated that it found that these requirements were met when it denied the Foundation’s initial petition. J.A. 928-29. In that sense, the PTO already reviewed its determination that the terminal disclaimer was valid. The district court, however, held that as the PTO re- ceives disclaimer filings and is responsible for placing them in the public record, the PTO has the inherent authority to reconsider whether it should have filed an unauthorized terminal disclaimer. District Court Op., 2013 WL 3894156, at *8. The district court also noted that during its hearing, the PTO “appeared to concede that it had inherent discretionary authority to withdraw a fraudulently filed disclaimer but not an unauthorized one.” Id. at *8 n.15. However, it is also not our place to define what hypothetical circumstances might allow or require the PTO’s action, where those circumstances are not at issue here. The PTO has sufficiently stated its reasoning that, in this case, the existence of a mistake by an attorney other than the type falling under § 255 or a lack of actual authority from a client should not result in the withdrawal of the terminal disclaimer. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1994). The PTO need not articulate what other circumstances would warrant such withdrawal. In its decision, the PTO provided reasons for refusing to withdraw the ’187 patent’s disclaimer in this case, “assuming arguendo that the decision to enter or not enter the disclaimer was subject to reconsideration.” Final Decision, at 8. Though this section of its decision was styled as an alternative basis for rejecting the Foun- dation’s petition, “we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be dis- cerned.” Bowman Transp., 419 U.S. at 285-86; see also Casino Airlines, Inc. v. Nat’l Transp. Safety Bd., 439 F.3d JAPANESE FOUNDATION v. LEE 15 715, 717 (D.C. Cir. 2006) (sustaining an agency decision as long as at least one of multiple grounds is valid and the agency would have acted on that ground even if others were unavailable). The PTO provided two reasons for declining to withdraw the terminal disclaimer. First, the PTO determined that, once the disclaimer was filed, the public may have relied on it, and the PTO “does not determine on an ad hoc basis whether the public has actually relied on such filing.” Final Decision, at 8. Second, the PTO held that it “is not the proper forum for resolving the issue of whether the disclaimer was filed per the intentions of the patentee,” on the basis of its position that “miscommunications between attorneys and clients do not excuse the actions of the representative.” Id. at 9. With respect to the first ground of the PTO’s decision, the Foundation argues that the public did not rely on the ’187 patent’s disclaimer. In the Foundation’s view, alt- hough by the time of the PTO’s final decision the dis- claimer did appear in the patent’s prosecution file and online, the public was nevertheless on notice that its validity was in question. The Foundation’s position appears to be based on the fact that the Foundation’s own petitions also appeared in the file, in which it contested the disclaimer. However, nothing in the file actually indicated that the PTO had any doubt about the disclaim- er’s validity. The lack of publication in the Official Ga- zette is also unavailing, given that the prosecution file is freely accessible on the Internet. That said, even if we gave the Foundation the full benefit of its argument, the PTO’s other ground for denying the petition suffices to sustain its decision. In this case, the Foundation has alleged that its at- torney of record filed the disclaimer because of miscom- munications between the Foundation, KHK, Kyowa Law, and Foley. The PTO declined to delve into the record and evaluate the merits of the Foundation’s assertion. The PTO instead determined that it need not examine alleged 16 JAPANESE FOUNDATION v. LEE miscommunications between the patentee and its attor- ney of record because of the principle that it holds the patentee to be “bound by the actions or inactions of his voluntarily-chosen representative.” Final Decision, at 9. The PTO, apart from a clerical error under § 255, ends its inquiry into attorney authorization once it determines that the attorney of record signed the disclaimer, as required by regulation. The Foundation suggests that it should not be bound to the consequences of its attorney of record’s actions, as it resulted in the loss of a valuable property right. It analo- gizes, as the district court did, to the principle that an attorney cannot settle a case or waive certain rights without the client’s authorization in the context of ordi- nary representation. See District Court Op., 2013 WL 3894156, at *6. The PTO has, however, clearly articulat- ed in its regulations that, other than the patentee, only the attorney of record with power of attorney is author- ized to file a terminal disclaimer on the patentee’s behalf. See 37 C.F.R. § 1.32. And here, the patentee provided specific authority to its attorney to file a disclaimer by filing a power of attorney to prosecute the underlying application and to transact all business in the PTO con- nected therewith. J.A. 199. Even if we disagreed with the PTO’s position as a matter of policy, we must not substitute our own judgment for that of the agency be- cause “[unless] these vital differentiations between the functions of judicial and administrative tribunals are observed, courts will stray outside their province and read the laws of Congress through the distorting lenses of inapplicable legal doctrine.” FCC v. Pottsville Broad. Co., 309 U.S. 134, 144 (1940). We must defer to the agency’s interpretation of its own procedures and regulations, and this case does not indicate the kind of “extremely rare circumstances” that could “justify a court in overturning agency action because of a failure to employ procedures beyond those required by the statute.” Vt. Yankee Nucle- JAPANESE FOUNDATION v. LEE 17 ar Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524, (1978). 6 Here, the PTO determined that mis- communications between the Foundation and its attorney of record did not excuse the actions of the attorney, and we will not substitute our judgment for that of the agency. State Farm, 463 U.S. at 30. Therefore, we find that the PTO did not act arbitrari- ly, act capriciously, or abuse its discretion in declining to use any inherent authority that it might have in with- drawing the terminal disclaimer on the ’187 patent that the Foundation’s attorney of record duly filed in accord- ance with the PTO’s regulations. III For the aforementioned reasons, we reverse the dis- trict court’s grant of the Foundation’s motion for summary judgment and denial of the PTO’s motion for summary judgment, and, accordingly, we vacate the district court’s order that the PTO conduct additional proceedings and withdraw the terminal disclaimer on the ’187 patent from the public record. REVERSED AND VACATED 6 The district court suggests that the “PTO is the Foundation’s only source of adequate relief.” District Court Op., 2013 WL 3894156, at *9. We note that in circumstances where a client may be deprived of a claim based on its attorney’s conduct, and the facts indicate that the “attorney’s conduct falls substantially below what is reasonable under the circumstances, the client’s remedy is against the attorney in a suit for malpractice.” Link v. Wabash R.R. Co., 370 U.S. 626, 634, n.10 (1962). 

853 F.2d 370 AMERICAN GENERAL FIRE & CASUALTY COMPANY, Plaintiff-Appellee,v.Mizell REESE and Barbara Reese, Defendants-Appellants,v.U.S. DEPARTMENT OF AGRICULTURE, Defendant-Appellee. No. 88-4155. United States Court of Appeals,Fifth Circuit. Aug. 29, 1988. Paul Henry Kidd, Jr., Monroe, La., for defendants-appellants. John A. Broadwell, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Leven H. Harris, Asst. U.S. Atty., Shreveport, La., for defendant-appellee. Sharon W. Ingram, J. Michael Hart, Monroe, La., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Louisiana. Before THORNBERRY, WILLIAMS and SMITH, Circuit Judges. JERRE S. WILLIAMS, Circuit Judge: 1 Appellants, Mr. and Mrs. Reese, appeal the district court's order releasing insurance proceeds for their home, which was destroyed by fire in 1986, to the Farmers Home Administration (FmHA). The terms of the mortgages which the Reeses gave FmHA on their home as security for crop production loans required them to insure the home for the benefit of FmHA. But the American General Fire and Casualty Co. insurance policy in effect at the time of the fire did not name FmHA as a loss mortgagee or loss payee. The district court held that under Louisiana law, FmHA held an equitable lien in the security property as of the time of the fire, and awarded the insurance proceeds to the FmHA. We AFFIRM the district court's judgment in favor of American General and FmHA, but on different grounds. We also amend the court's judgment to deny the Reeses penalties or damages or attorney's fees under the Louisiana Insurance Code. This matter was not addressed by the district court. I. 2 Most of the facts were stipulated by the parties, and the case was decided by the district court on the record, without trial. 3 Mr. and Mrs. Reese are farmers who in recent years received several crop production loans through the Farmers Home Administration (FmHA), an agency of the federal government. As security for these loans, the Reeses granted various mortgages on their home, which was located on a one-acre lot in Morehouse Parish, Louisiana. The mortgages all contained language requiring that the mortgage security be properly insured for the benefit of the mortgagee, FmHA.1 By a letter dated March 27, 1985, FmHA wrote appellants directing them "to obtain insurance on dwelling and assign it to FmHA." The Reeses then obtained an $80,000 fire insurance policy on their residence in June, 1985. The policy did not, however, name the FmHA as a loss payee or mortgagee, nor did it otherwise indicate FmHA's interest in the property. 4 The policy was in full force and effect when the Reeses' home was totally destroyed by fire on April 26, 1986. The Reeses made timely proof of loss to appellee, American General. About July 15, 1986, American General issued a check for the fire loss to the Reeses for $80,000 which was made payable jointly to them and to the United States.2 A few weeks later, the Reeses returned the check to American General and asked that a new one be issued to them only. American General did not issue a new check. 5 On October 23, 1986, the Reeses sold the one-acre lot upon which their residence had been located. Proceeds of the sale (amounting to $2,000) were paid to FmHA, and four mortgages held by FmHA on the one acre were "cancelled" or "released" the next day. Relevant language in the cancellation form, captioned "Partial Release," reads: 6 ... the Government does hereby release from the lien of said mortgage the property hereinafter described to-wit: [legal description of location omitted] but no further, hereby authorizing and requesting the Recorder of mortgages of the Parish of Morehouse, Louisiana, to make mention of the partial release of mortgage herein granted ... on the margin of the record of said mortgage in his office ... 7 Only the aforedescribed property is released from the lien of said mortgage. This release shall not affect or modify the obligation secured by said mortgage, or affect or release any property described in said mortgage other than that specifically released herein. 8 American General asked the United States for a release of its claims against the $80,000, but the United States made no response. It does not appear that the United States manifested any interest in the insurance proceeds until February 18, 1987. 9 On August 20, 1986, the Reeses sued American General in state court for $116,000 ($80,000 for dwelling loss, $20,000 penalty or damages under Louisiana law, and $16,000 for loss of use of dwelling). On January 20, 1987, American General filed petition for concursus (interpleader) naming as defendant-claimants the Reeses and the United States. American General then deposited the full amount payable under the policy into the state court registry. On January 29, 1987, the Reeses filed a motion for summary judgment asking the state court to award them the insurance policy proceeds from American General together with statutory penalties and attorney's fees under La.R.S. 22:658.3 On February 18, 1987, the United States removed the case to the federal district court. Following removal, on April 21, 1987, the Reeses filed a supplemental motion for summary judgment with a copy of the cancellation/release of mortgages held by the United States on the one-acre lot. The district court denied the Reeses' motion for summary judgment on June 16, 1987. On August 7, the parties agreed to have the case tried upon stipulations of fact under an October 7, 1987 deadline. The Reeses' unpaid loan balance at that time was in excess of $185,000. 10 On February 16, 1988, the district court awarded the entire insurance policy proceeds of $80,000 plus accumulated interest to the United States. The court directed the Parish Clerk of Court to disburse all subject funds from the registry to the United States. The district court held that an "equitable lien" existed on the policy proceeds in favor of FmHA by virtue of appellants' agreement to make the policy payable to it, and that this equitable lien was not affected by cancellation of all mortgages on the subject lot. The court did not address appellants' motion for penalties and attorney's fees. The Reeses appeal this judgment.4 II. 11 Three issues are before us. The first is whether the district court properly awarded the insurance proceeds to FmHA under an "equitable lien" or some other legal or equitable theory. The second is whether the district court erred in finding that the government's claim upon the insurance proceeds was unaffected by FmHA's cancellation or "partial release" of the subject property. The final issue involves possible penalties and attorney's fees under Louisiana law. A. Equitable Lien; Equitable Reformation 12 On March 27, 1985, FmHA wrote a letter to appellants requiring them "to obtain insurance on dwelling and assign it to FmHA." All of the mortgages between the United States and appellants contained a clause requiring the mortgage security to be properly insured for the benefit of the mortgagee. Nevertheless, FmHA was not listed as mortgagee on appellants' fire insurance policy with American General, the policy was not assigned to FmHA, and there was no loss payee clause in the policy in favor of FmHA when the fire occurred on April 26, 1986. 13 The district court found that these facts invoked the doctrine of equitable lien under Louisiana law as set out in Wheeler v. Insurance Company, 101 U.S. 439, 442, 25 L.Ed. 1055 (1880). 14 [I]t is settled by many decisions in this country, that if the mortgagor is bound by covenant or otherwise to insure the mortgaged premises for the better security of the mortgagee, the latter will have an equitable lien upon the money due on a policy taken out by the mortgagor to the extent of the mortgagee's interest in the property destroyed. [Citations omitted]. The equitable doctrine upon which the appellants' claim is founded undoubtedly obtains in Louisiana. It is derived from the principles of the civil law, which is the basis of the civil code of that State; and it is supported by the authorities cited from the Louisiana reports. [Citations omitted.] 15 The district court held that Wheeler is still recognized authority in Louisiana courts, citing Davis v. Aetna Casualty & Surety Company, 329 So.2d 868, 872 (La.App.1975), writ refused, 333 So.2d 233 (La.1976). 16 It is not clear from Davis, however, whether Wheeler still is the law in Louisiana. The Davis court merely stated, "we are cognizant of the equitable lien theory enunciated in Wheeler," but then went on to resolve the issue before it (penalties and attorney's fees) on the basis of La.R.S. 22:658. Id. No recent cases cited by the district court or by the parties refer to Wheeler.5 Of course, the general law in Louisiana is that where an insurance policy is taken out by a mortgagor for the benefit of a mortgagee, the mortgagee is entitled to the proceeds of the policy to the extent of the mortgage debt due at the time of loss. Durbin v. Allstate Insurance Co., 267 So.2d 779, 781 (La.App.1972); Adams v. Allen, 19 So.2d 578, 580 (La.App.1944). Particularly applicable to the case before us are the recent Louisiana cases holding that this principle of law is properly applied where the mortgagee is unnamed in the policy. The legal theory in these cases is that an equitable reformation of the insurance contract for the benefit of a previously unnamed mortgagee is justified in order to prevent unjust enrichment. Leon A. Minsky, Inc. v. Providence Fashions, Inc., 404 So.2d 1275, 1278-79 (La.App.), writ denied, Y407 So.2d 731 (La.1981); Taylor v. Audubon Insurance Co., 357 So.2d 912, 914-15 (La.App.), writ denied, 359 So.2d 1307 (La.1978); Diaz v. Cherokee Insurance Co., 275 So.2d 922, 924-25 (La.App.1973). 17 Under Louisiana jurisprudence, reformation is an equitable remedy whereby a court may reform a contract so as to reflect the intentions of the parties. An insurance policy may be reformed where, because of error or mistake, the policy does not conform to the original intention of the parties. Pacific Insurance Co. v. Quarles Drilling Corp., 850 F.2d 1087, 1088-89 (5th Cir.1988). Clearly, the Louisiana doctrine of equitable reformation articulated in Minsky, Taylor, and Diaz is applicable to prevent unjust enrichment in the present case. Appellants had agreed to maintain insurance on their home for the benefit of FmHA as a condition for receiving crop insurance loans worth substantially more than the value of their home. It must be assumed that the debtors intended to carry out their legally contracted obligation. Minsky, 404 So.2d at 1278. They cannot now claim the proceeds of that insurance for themselves on the basis of their own failure to name FmHA as mortgagee or loss payee in their policy. 18 The district court held that the government is entitled to the insurance proceeds on the theory that an equitable lien was created in favor of the FmHA at the time of the fire. The same result would obtain on either the equitable lien or the equitable reformation theory. We are not certain, however, whether the equitable lien doctrine continues to exist in Louisiana, and it is unnecessary to decide that question to resolve this case. Thus we affirm the district court's holding that the government was entitled to the insurance proceeds on the theory of equitable reformation. In Louisiana, an appellate court has authority to render any judgment which is just, legal and proper based on the record on appeal, irrespective of whether the particular legal theory on which it makes the judgment has been advanced before, or considered by, the trial court. LA. CODE CIV.PROC.ANN. art. 2164 (West 1961); Givens v. Richland-Morris Agency, Inc., 369 So.2d 1184, 1185 (La.App.1979); McMorris v. Pepperdene, 292 So.2d 892, 893-94 (La.App.), writ denied, 294 So.2d 840 (La.1974); Diaz, 275 So.2d at 926. 19 We therefore reform the insurance contract to name FmHA as the loss payee in accordance with the Reeses' prior obligation under the mortgages it granted in return for the crop production loans. This equitable reformation is effective as of the date the insurance policy was issued, and concurrent with the policy during its term. See Diaz, 275 So.2d at 925. Thus FmHA was properly the loss payee under the insurance policy both at the time it was issued, and at the time of the fire. 20 B. The effect of cancellation/release of the mortgages 21 Appellants state that in Louisiana, structures of a permanent nature are deemed an integral part of the real estate beneath them, and add, "So too are insurance proceeds arising therefrom." They do not cite authority for the latter proposition, however, and case law in Louisiana clearly is to the contrary. Numerous Louisiana cases hold that a residential property insurance policy is a personal contract, and does not run with the land. See Eagle Star Insurance Co. v. General Accident, Fire & Life Assurance Corp., 315 So.2d 826, 828-29 (La.App.1975). Appellants' argument that the government's cancellation or release of its mortgages on the one-acre lot, at that time with no building on it, somehow also cancelled or released their obligation as to the insurance policy is, therefore, without merit. 22 Moreover, the terms of the cancellation specifically reserved "the obligation secured by" the mortgages and "any property described in" them other than that specifically released. The duty to insure for the benefit of FmHA was undoubtedly an "obligation secured by" the mortgages. The fact that the government permitted the Reeses to sell the one-acre lot on which the destroyed home had been situated and apply the proceeds of that sale against their continuing indebtedness to FmHA does not mean that the government forgave or cancelled the remainder of that debt. The home and the acre of land were security for the obligation; but the obligation existed apart from and independently of the security. We also reject appellants' contention that the government's acceptance of the $2,000 proceeds from the sale of their one-acre lot and its cancellation or release of the mortgages on that property constituted "accord and satisfaction" absolving them from their obligation to repay the remainder of their debt.6 23 We conclude that the government's cancellation or partial release of the remaining mortgages on appellants' destroyed home and lot had no effect upon their obligation to repay the funds obtained as crop production loans. 24 C. Penalties and Interest under Louisiana Law 25 Appellants contend that under LA.REV.STAT.ANN. Sec. 22:6587 they are entitled to a penalty or damages equal to ten percent of the amount of their claim, along with attorney's fees for the failure of American General to pay them the insurance policy proceeds within 60 days. 26 In other Louisiana cases in which penalties and attorney's fees have been awarded under Sec. 22:658, the award has been made to the party eventually found entitled to the disputed insurance proceeds. The statutory language itself appears to provide for such penalties and fees only if the party seeking them is entitled to the policy proceeds. The penalty is to be "in addition to the amount of the loss," and attorney's fees are "for the prosecution and collection of such loss." Section 22:658(B)(1), emphasis added. The Reeses were not entitled to the proceeds of the policy. They obviously have no standing to assert a penalty for non-payment of proceeds to which they have no claim. We amend the district court's order to state that appellants are not entitled to penalties or attorney's fees under Sec. 22:658. III. 27 We hold that the district court properly awarded the subject insurance proceeds to the United States, but we affirm this result on the Louisiana doctrine of equitable reformation rather than the Wheeler equitable lien theory. We conclude that the government's cancellation or "partial release" of the several mortgages it held on the Reeses' one-acre lot did not affect the Reeses' obligation to repay the remaining balance due on their crop production loans. Finally, we hold that the Reeses are not entitled to penalties or attorney's fees under La.R.S. Sec. 22:658, and we amend the district court's order and judgment to state that the Reeses shall take nothing by way of penalties or attorney's fees. 28 AFFIRMED AS AMENDED. 1 The language printed in the standard USDA-FmHA mortgage form states that the borrower "hereby COVENANTS AND AGREES: ... (8) To keep the property insured as required by and under insurance policies approved by the Government and, at its request, to deliver such policies to the Government." The parties stipulated that "[t]he mortgage between the United States and the Reeses contains clauses requiring the mortgage security to be properly insured for the benefit of the mortgagee." 2 The record includes an affidavit dated February 25, 1987, and signed by Charles N. Andrews, American General's claims manager, which states "... that during the course of his investigation following the fire concerning Mr. and Mrs. Reese, he discovered that there was a mortgage on the insured premises to and in favor of the F[m]HA, which said mortgage, among other provisions, contained clauses [sic ] providing that the insured would keep and maintain the property properly insured." 3 The Louisiana Insurance Code provides in relevant part as follows: Sec. 658. Payment of claims, policies other than life and health and accident; penalties; ... A. All insurers issuing any type of contract, other than those specified in R.S. 22:656 and R.S. 22:657, shall pay the amount of any claim due any insured ... within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. B. (1) Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the total amount of the loss, payable to the insured ... together with all reasonable attorney fees for the prosecution and collection of such loss ... LA.REV.STAT.ANN. Sec. 22:658 (West 1988). 4 The district court and this Court subsequently denied appellants' motion to stay the judgment releasing the proceeds pending appeal 5 The only case cited in the briefs and the record in support of the equitable lien theory is Hartford Fire Insurance Co. v. Landreneau, 19 La.App. 280, 140 So. 52, 54-55 (1932). Wheeler and the equitable lien theory are also mentioned in dicta in Smith v. United Fire Insurance Co., 303 So.2d 286, 289 (La.App.1973), writ denied, 303 So.2d 749 (La.1974) 6 Appellants presented this argument for the first time on appeal. Ordinarily, courts of appeal will consider an issue that was not first presented to the district court only if the issue is purely legal and if refusal to consider it would result in a miscarriage of justice. C.F. Dahlberg & Co. v. Chevron U.S.A., Inc., 836 F.2d 915, 920 (5th Cir.1988); In re Goff, 812 F.2d 931, 933 (5th Cir.1987); Atlantic Mutual Insurance Co. v. Truck Insurance Exchange, 797 F.2d 1288, 1293 (5th Cir.1986). These conditions do not obtain in the present case 7 See supra note 3

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 15-1896 JAMES S. EICHER, APPELLANT, V. DAVID J. SHULKIN, M.D., SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Decided August 14, 2017) Glenn R. Bergmann and Sun H. Choi, both of Bethesda, Maryland, were on the brief for the appellant. Leigh A. Bradley, General Counsel; Mary Ann Flynn, Chief Counsel; Christopher W. Wallace, Deputy Chief Counsel; and Catherine A. Hulgan, all of Washington, D.C., were on the brief for the appellee. Before DAVIS, Chief Judge,1 and BARTLEY and GREENBERG, Judges. DAVIS, Chief Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting opinion. DAVIS, Chief Judge: The appellant, James S. Eicher, appeals, through counsel, a January 13, 2015, decision of the Board of Veterans' Appeals (Board) that denied entitlement to payment of educational benefits under chapter 33, title 38, U.S. Code (Post-9/11 GI Bill benefits or Chapter 33 benefits) for distance learning pursued at a foreign educational institution from October 4, 2010, to September 30, 2012. Record (R.) at 3-13. On June 30, 2016, the Court, in a single-judge decision, vacated the Board's decision and remanded the matter for further adjudication. Eicher v. McDonald, No. 15-1896, 2016 WL 3548143 (U.S. Vet. App. June 30, 2016) (mem. dec.). On July 20, 2016, the Secretary filed a motion for single-judge reconsideration or, in the alternative, a panel decision. The 1 On May 25, 2017, Chief Judge Davis replaced Judge Lance, who participated in the decision on the merits, but who retired from active service before the appellant's motion for reconsideration was filed. Court granted the Secretary's motion for a panel decision, withdrew the Court's June 30, 2016, memorandum decision, and on April 19, 2017, issued a panel opinion in its place. On May 10, 2017, the appellant filed a motion for reconsideration of the panel opinion. The Court grants the appellant's motion for reconsideration, withdraws the April 19, 2017, panel opinion, and issues this panel opinion in its place. For the reasons that follow, the Court will affirm the Board's decision. I. BACKGROUND The appellant served in the U.S. Army from July 1987 to September 1993 and from April 1998 to February 2011, including service in the Gulf War and Afghanistan. R. at 15-17. In August 2009, before his separation from service, the appellant filed an electronic VA Form 22-1990, "Application for VA Education Benefits," for benefits under chapter 30, title 38, U.S. Code (Montgomery GI Bill benefits or Chapter 30 benefits). R. at 713-21. Following receipt of his VA Form 22-1990, on March 18, 2010, VA issued a "Certificate of Eligibility," which notified him that he was entitled to 36 months of "education benefits under the Montgomery GI Bill . . . for enrollment and pursuit of any course, program, final objective, or institution approved for veterans." R. at 711. On March 22, 2010, VA received a request from De Montfort University (the University), located in the United Kingdom, for approval of its Masters of Arts (MA) degree in sports history and culture program (the Program). R. at 579. The University's representative stated that the University sought approval of the Program by VA for the appellant, who would pursue the Program via distance learning. Id. On July 20, 2010, the appellant emailed the University, copying VA representatives, to confirm his enrollment in the Program "as an international, on-line, internet-based student" and explained that, although other "De Montfort University courses of study . . . have already been registered or certified by [VA]," the Program had not. R. at 637. He asked the VA representatives "what steps must be taken for" the Program "to gain []VA approval or certification." R. at 638. In an email response to the appellant, copying a University representative, a VA representative explained that a University official must apply "for VA approval of the MA degree program in Sports History & Culture," and directed the University's representative to submit "the application for 2 the Foreign School Approval Group" to the "Washington Regional Office [(RO)]." R. at 636. In reply, the University's representative emailed the appellant and a VA representative and explained that the University "had already applied for approval of the MA Sports History and Culture" program. R. at 635. On August 6, 2010, the University's representative requested an update on "the status of the approval of the MA Sports[] History and Culture course with the VA." R. at 634. That same day, a VA representative emailed the University's representative that the "program was approved August 4, 2010," and that "[a] letter and information regarding the approval was forwarded that d[ay]." R. at 633. The University's representative forwarded the VA representative's email to the appellant. Id. The record contains a letter dated "August 45, 2010," from VA to the University's representative, which the University's representative asserts she never received. R. at 574-75, 576. That letter stated that VA had "approved Masters in Sports History and Culture" and immediately after that stated: PLEASE NOTE: Programs are approved for in-residence training only. Due to recent changes in the law governing [VA] educational benefits for students at foreign schools, we cannot pay benefits for distance learning or independent study courses. Please do not submit enrollment information for any courses taken by distance learning, online, or independent study. All students must be in residence and all courses must be attended in-person in a formal classroom setting (taught programs). R. at 574 (emphasis in original). The letter noted that the University had "no designated Certifying Officials responsible for submitting enrollment information for eligible students" and included "a VA Form 22-8794, Designation of Certifying Officials," that VA "must receive . . . before [it] can process awards for eligible students." Id. The letter also included "VA Form 22-1999, Enrollment Certifications, for use in reporting enrollment information," of eligible students. R. at 575. On August 17, 2010, the appellant filed a second electronic VA Form 22-1990, "Application for VA Education Benefits," and requested Post-9/11 GI Bill benefits in lieu of his Montgomery GI Bill benefits. R. at 728, 722-31. He stated that he would attend the Program starting in September 2010. R. at 723. After VA received the appellant's second VA Form 22-1990, VA issued him on August 24, 2010, a "Certificate of Eligibility," which notified him that he was entitled to 35 months and 6 days of "benefits for an approved program of education or training under the Post 9/11 GI 3 Bill," that he "must take this letter to [his] school," and that his "school must certify [his] enrollment before [he] can get paid." R. at 689. On February 18, 2011, VA received the University's VA Form 22-1999, "Enrollment Certification," on the appellant's behalf reflecting enrollment in the Program, taken by distance learning, from October 2010 to September 2012. R. at 684. On March 7, 2011, VA denied the appellant's request for payment. R. at 662-65. VA explained that, although the appellant was eligible for Post-9/11 GI Bill benefits, VA could not pay for his enrollment in the Program, as "[i]ndependent or distance learning is not approved for GI Bill payment at foreign schools" and his "school reported that [his] training is distance learning only." R. at 662. The appellant submitted a Notice of Disagreement with the March 2011 decision, R. at 658-60; VA issued a Statement of the Case, R. at 490-503; and he perfected his appeal, R. at 342-46. In the decision on appeal, the Board determined that it was "without legal authority to grant the educational benefits sought," because Post 9/11 GI Bill "benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken via distance learning." R. at 9-10. The Board noted that 38 U.S.C. § 503 provides equitable relief when there has been administrative error but that "if the [v]eteran wishes to petition for equitable relief, he must file such a petition with the Secretary given that the authority to award equitable relief under that statute is committed to the sole discretion of the Secretary." R. at 10. The Board concluded that it lacked jurisdiction to consider the Secretary's exercise of its authority to award equitable relief under section 503. Id. II. THE PARTIES' ARGUMENTS The appellant does not dispute the Board's determination that it "is without legal authority to grant the educational benefits sought."2 R. at 10; Appellant's Brief (Br.) at 13-26; see Cromer v. Nicholson, 19 Vet.App. 215, 217 (2005) ("[I]ssues not raised on appeal are considered abandoned."), aff'd, 445 F.3d 1346 (Fed. Cir. 2006). Rather, he asks that the Court grant relief on the basis of equitable estoppel. Appellant's Br. at 13-24. Specifically, he contends that he detrimentally relied upon communications from VA to the University and that he satisfies the traditional elements of 2 Thus, contrary to the view of our dissenting colleague, the Court need not determine whether the Board legally erred in its interpretation of "independent study" under 38 C.F.R. § 21.4267. The veteran made no argument concerning this issue, either in his brief or his reply brief. 4 estoppel. Id. Alternatively, he asserts that the Board provided an inadequate statement of reasons or bases, because it failed to discuss 38 C.F.R. § 2.7 and whether a recommendation to the Secretary for consideration of equitable relief was warranted. Id. at 24-26. The Secretary responds that this Court's precedent makes clear that it is not a court of equity and may not apply the doctrine of equitable estoppel to grant monetary awards against the Government. Secretary's Br. at 8-14. The Secretary also replies that neither the Board nor the Court is required to discuss the issue of entitlement to a recommendation for equitable consideration under 38 U.S.C. § 503 and 38 C.F.R. § 2.7, as the Secretary's authority to award equitable relief is not subject to the Board's or the Court's jurisdiction. Id. at 14-21. III. ANALYSIS A. Post-9/11 GI Bill Education Benefits 1. Legal Framework For more than 70 years, veterans have received educational assistance through various "GI Bills," including the Servicemen's Readjustment Act of 1944, Pub. L. No. 78-346, 58 Stat. 284 (1944), and the Veterans' Educational Assistance Act of 1984 (Montgomery GI Bill), Pub. L. No. 98-525, Title VII, 98 Stat. 2553 (1984), now codified at chapter 30, title 38, U.S. Code. In June 2008, Congress enacted the most recent form of those benefits through the Post-9/11 Veterans Educational Assistance Act of 2008 (Post-9/11 GI Bill), Pub. L. No. 110-252, Title V, §§ 5001- 5003, 122 Stat. 2357 (2008), codified at chapter 33 of title 38. VA's implementing regulations are codified at 38 C.F.R. §§ 52.9500- 9770 (2017). The Post-9/11 GI Bill builds upon the system established by the Montgomery GI Bill and many of the eligibility determinations under Chapter 33 are defined by reference to Chapter 30. See 38 U.S.C. § 3323(a) (stating that, except as otherwise provided, the provisions of "sections 3034(a)(1) and 3680(c) shall apply to the provision of education assistance under this chapter"); see also 38 U.S.C. § 3034(a)(1) (stating that the provisions of 38 U.S.C. §§ 3470, 3471, 3474, 3476, 3482(a), 3483, 3485, as well as the provisions of 38 U.S.C. §§ 3670 et seq., 3680 et seq. (with limited exceptions), "shall be applicable to the provision of educational assistance under this chapter"). For example, entitlement to Chapter 33 benefits depends on whether an eligible veteran is 5 pursuing a program of education that VA has approved for the purposes of Chapter 30. 38 U.S.C. § 3313(a)-(b). Chapter 30, in turn, relies on the definition of a "program of education" found in 38 U.S.C. § 3452(b), which defines a "program of education" as, among other things, "any curriculum or combination of unit courses or subjects pursued at an educational institution which is generally accepted as necessary to fulfill the requirements for the attainment of a predetermined and identified educational, professional, or vocational objective." 38 U.S.C. § 3452(b); 38 U.S.C. § 3002(3)(A). An eligible veteran is entitled to education benefits "while enrolled in a course of education offered by an educational institution only if such course is approved in accordance with the provisions of subchapter I of chapter 36 of this title." 38 U.S.C. § 3483. An accredited standard college degree program at a public or not-for-profit proprietary educational institution that is accredited by an agency or association recognized for that purpose by the Secretary of Education is deemed to be an approved course of study. 38 U.S.C. § 3672(b)(2)(A). In addition, a nonaccredited course of education—whether offered by a public, private, profit, or nonprofit educational institution—which has not been approved by the Secretary or a State approving agency may be approved if certain conditions are met. 38 U.S.C. § 3676. For nonaccredited courses of education at institutions outside of the United States, "[a]n eligible veteran may not enroll in any course offered by [that] institution . . . unless that educational institution is an approved institution of higher learning and the course is approved by the Secretary." 38 U.S.C. § 3476. VA will not approve a nonaccredited course of education, however, "if it is to be pursued in whole or in part by independent study." 38 U.S.C. § 3676(e); see 38 C.F.R. § 21.4254(d), 21.4267 (2017). VA further defines "independent study" as a course that "consists of a prescribed program of study with provision for interaction between the student and the regularly employed faculty of the institution of higher learning . . . personally or through use of communications technology" that "is offered without any regularly scheduled, conventional classroom or laboratory sessions" but does not fall under certain exceptions, including student teaching and research necessary for the preparation of a thesis or dissertation. 38 C.F.R. § 21.4267(b)-(e). A course is considered to be independent study in part if it has some standard scheduled class sessions and, when there are no scheduled classes, interaction is accomplished personally or through the use of 6 communications technology. 38 C.F.R. § 21.4267(b)(2). VA regulations state that independent study and distance learning are treated comparably, see 38 C.F.R. §§ 21.9625(b), 21.9635 (2017), and have commonalities of definition, compare 38 C.F.R. § 21.4267(b) (definition of independent study), with 38 C.F.R. § 21.9505 (deferring to similar definition in 20 U.S.C. § 1003(7)). 2. The Board's Decision In the decision on appeal, the Board explained that the appellant was not enrolled in a standard degree program at an institution accredited by an agency or association recognized for that purpose by the Secretary of Education. R. at 9; see 38 U.S.C. § 3672(b)(2)(A). The Board noted that, despite the University's lack of accreditation, VA approved the Program on an in-residence basis. R. at 9; see R. at 633-64, 574-75. The Board found, however, that the appellant attended the course by distance learning, which is categorized as independent study under VA regulations. R. at 9; see R. at 684; see also 38 C.F.R. § 21.4267(b). Ultimately, the Board determined that the appellant was not entitled to Post-9/11 GI Bill benefits for his enrollment in the Program for the period from October 4, 2010, to September 30, 2012, as he pursued that course of study in whole or part by independent study. R. at 9; see 38 U.S.C. § 3676(e); 38 C.F.R. § 21.4254. Throughout his briefs, the appellant appears to conflate three related determinations: first, VA's certification of his basic eligibility for Post-9/11 GI Bill benefits by virtue of the length and character of his service; second, VA's designation of the Program as an approved course of study; and third, VA's determination as to whether he was enrolled in an approved course of study and, thus, entitled to benefits. Appellant's Br. at 13-24; Reply Br. at 1-10. There is no question that the appellant is eligible to receive Chapter 33 benefits, as the August 24, 2010, Certificate of Eligibility states that he is entitled to 35 months and 6 days of "an approved program of education or training under the Post-9/11 GI Bill." R. at 689. Likewise, there is no dispute that the Program is an approved course of study "for in-residence training only." R. at 574. Thus, the only issue is whether the appellant was enrolled in an approved course of study. The Board correctly found that he was not enrolled in an approved course of study, because he completed the Program by distance learning. R. at 9; see 38 U.S.C. § 3676(e); 38 C.F.R. § 21.4254. Although the Court is sympathetic to the appellant's situation, the Board's findings are supported by the law. Section 3676(e) and § 21.4254 make clear that Post-9/11 GI Bill education 7 benefits cannot be used to pay for a nonaccredited program at a foreign educational institution taken by distance learning. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law). The Court may not conclude that the Board erred when as a matter of law it determined that educational benefits for distance learning pursued at a foreign educational institution were not warranted as a matter of law. B. Equitable Estoppel The appellant first argues that the Court should consider its ability to administer equitable remedies and apply the principles of equitable estoppel to his case. Appellant's Br. at 16-24. The Court declines his invitation. As the Court has clearly explained, "[t]he [U.S.] Supreme Court has held that the Appropriations Clause of the Constitution, U.S. Const. art. I, § 9, cl. 7, precludes the judiciary from ordering an award of public funds to a statutorily ineligible claimant on the basis of equitable estoppel." Rosenberg v. Mansfield, 22 Vet.App. 1, 5 (2007) (citing OPM v. Richmond, 496 U.S. 414, 430 (1990)), aff'd sub nom. Rosenberg v. Peake, 296 F. App'x 53 (Fed. Cir. 2008); see McCay v. Brown, 106 F.3d 1577, 1581 (Fed. Cir. 1997) (holding that equitable estoppel "is not available to grant a money payment where Congress has not authorized such a payment or the recipient doesn't qualify for such a payment under applicable statutes"). Thus, even if the Court were inclined to grant the appellant relief on the basis of equitable estoppel—though, to be clear, it is not—the Court could not lawfully do so in the absence of statutory entitlement. The remedy that the appellant seeks "is a monetary award against the U.S. government, and particularly where Congress has enacted an intricate and all-encompassing statutory scheme, such expenditures must be specifically authorized by statute." Smith v. Gober, 14 Vet. App. 227, 231 (2000), aff'd sub nom. Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002) (citing Malone v. Gober, 10 Vet.App. 539, 542 (1997)); see OPM, 496 U.S. at 424. No statute or regulation in the comprehensive veterans benefits system authorizes the Secretary to pay education benefits for distance learning pursued at a foreign educational institution, and there is thus no legal basis for entitlement to the benefits the appellant seeks. 8  The appellant argues that the VA representative's August 6, 2010, email to the University was misleading, as it did not state that the Program was approved for in-resident training only,3 and that "the subsequent approval of his VA Form 22-1990 for the online [] program mislead him to believe that it had been approved."4 Appellant's Br. at 23-24. Assuming without deciding that the email was misleading, "'erroneous advice given by a government employee cannot be used to estop the government from denying benefits,'" Johnson v. Brown, 9 Vet.App. 369, 377 (1996) (quoting McTighe v. Brown, 7 Vet.App. 29, 30 (1994)). Put another way, even if a VA employee had erroneously informed him that he would be eligible for educational benefits for distance learning pursued at the University, "VA would not be bound to grant benefits due to this administrative error." Owings v. Brown, 8 Vet.App. 17, 23 (1995). The appellant asserts that "VA repeatedly failed to respond to [his] application for his online [] program or to notify him of any disapproval in violation of 38 U.S.C. § 3471," Appellant's Br. at 23, however, his argument is misplaced. VA explicitly notified him of its denial of payment in the March 7, 2011, decision. R. at 662-65. Notably, VA did not receive a VA Form 22-1999, "Enrollment Certification," from the University until February 18, 2011. R. at 684. To the extent VA failed to notify the appellant prior to February 2011 – that is, after receiving the August 2010 application – that the on-line program was disapproved, the appellant nonetheless enrolled in the program without confirmation that his selected program was approved, and under the circumstances here the statute does not provide for an equitable remedy that would allow the award of benefits. C. The Secretary's Equitable Powers 3 The VA representative's August 6, 2010, email to the University's representative appears to be a notification to the University that the Program was an approved foreign program course of study for VA education benefits purposes generally but not an approval for this specific veteran's enrollment in that approved course of study. R. at 633-36. 4 In response to the appellant's August 17, 2010, VA Form 22-1990, on August 24, 2010, VA issued a Certificate of Eligibility that informed him that he was entitled to 35 months and 6 days of "benefits for an approved program of education or training under the Post-9/11 GI Bill" and immediately followed this statement by informing him that "[y]ou must take this letter to your school. Your school must certify your enrollment before you can get paid." R. at 689 (emphasis in original). VA issued the August 24, 2010, Certificate of Eligibility to the appellant before he began his studies at the University on October 4, 2010. Compare R. at 689-91, with R. at 684. 9  Finally, the appellant asks the Court to vacate the Board's decision and remand the case on the grounds that it provided an inadequate statement of reasons or bases by failing to discuss whether, pursuant to 38 C.F.R. § 2.7, the Board Chairman should have submitted a recommendation to the Secretary that this case be considered for equitable relief. Appellant's Br. at 24-26; see 38 C.F.R. § 2.7(c) (2017). The Court declines to do so.5 First, it is undisputed that the Secretary, and the Secretary alone, has the power to grant equitable relief where administrative error leads to a denial of benefits. 38 U.S.C. § 503; 38 C.F.R. § 2.7(a)-(b) (outlining the process for seeking equitable relief), (c) ("The authority to grant equitable relief . . . has not been delegated and is reserved to the Secretary."). Further, this Court's caselaw is clear that both the Board and the Court lack jurisdiction to review the grant of, or refusal to grant, equitable relief under section 503(a). Darrow v. Derwinski, 2 Vet.App. 303, 305 (1992) (holding "that the Board . . . lacks jurisdiction to review the exercise of authority under 38 U.S.C. § 503(a), or the refusal to exercise such authority, by the Secretary of Veterans Affairs"); see Smith, 14 Vet.App. at 231 (holding that "[t]he Secretary's authority to grant equitable relief under section 503 is wholly within the Secretary's discretion, and the Court lacks jurisdiction even to review the exercise of the Secretary's equity discretion"); Zimick v. West, 11 Vet.App. 45, 50 (1998); McCay v. Brown, 9 Vet.App. 193, 189 (1996). Indeed, although Congress specifically created a right of appeal to the Board as to decisions made under the authority of 38 U.S.C. § 511, there is no analogous statutory grant of jurisdiction to the Board to review a determination made under section 503(a). 5 The Court has no authority to remand the case on the requested basis but is confused as to why the Board member failed both to convey the Board Chairman's ability to recommend the case for equitable relief and to encourage such a recommendation, given the facts of this case. 10  Similar to the power to grant equitable relief, questions regarding who may recommend equitable relief to the Secretary pursuant to § 2.7(c) are governed by section 503 and not section 511. 38 C.F.R. § 2.7 (stated authority as 38 U.S.C. §§ 503, 512). Accordingly, because section 511 does not govern the recommendation process for seeking equitable relief, the Board was not required to discuss that issue and its failure to do so cannot render its statement of reasons or bases inadequate. See Wages v. McDonald, 27 Vet.App. 233, 237 (2015) ("[A]lthough [the Court's] jurisdiction over VA benefits decisions is broad, a decision to award equitable relief under 38 U.S.C. § 503(a) is not a decision under section 511 and therefore not reviewable by the Board or subject to [the Court's] jurisdiction."); Darrow, 2 Vet.App. at 305 ("In defining the jurisdiction of the Board, Congress confined it to '[a]ll questions in a matter which under section [511(a)] of this title is subject to a decision by the Secretary . . . ' 38 U.S.C. § 7104(a)."); compare 38 U.S.C. §§ 511, 7104(a), with 38 U.S.C. § 503.6 As the Secretary's authority to grant equitable relief is discretionary, the Court will not remand this matter on the grounds that the Board failed to discuss whether equitable relief was warranted. See Smith, 14 Vet.App. at 231. However, as the Board explained, the appellant is free to seek equitable relief from the Secretary pursuant to the Secretary's authority under section 503. IV. CONCLUSION On consideration of the foregoing analysis, the record on appeal, and the parties' pleadings, the Court's April 19, 2017, panel decision is WITHDRAWN, and this opinion is issued in its stead. The Board's January 13, 2015, decision is AFFIRMED. GREENBERG, Judge, dissenting: I respectfully dissent. Congress has aimed to provide veterans occupational freedom through broad access to educational benefits. The Servicemen's Readjustment Act of 1944, Pub. L. No. 78- 6 Nevertheless, the Board acknowledged "what seems to be misleading information," R. at 9, and that "[i]t seems clear that if the [appellant] had received notice [that distance learning was not approved for the Program], it would have had a material impact on his decision to enroll in distances learning courses," R. at 10. Given the Board's characterization of events, it remains unclear why the Board member did not acknowledge in his decision that the Board Chairman has authority to recommend equitable relief to the Secretary and did not state that in this case he would encourage the Board Chairman to recommend equitable relief. 11 346, 58 Stat. 284 (1944), provided "the special benefits which are due to the members of our armed forces – for they have been compelled to make greater economic sacrifice and every other kind of sacrifice than the rest of us, and are entitled to definite action to help take care of their special problems." See Franklin D. Roosevelt: Statement on Signing the Servicemen's Readjustment Act of 1944, June 22, 1944 (citations omitted). The appellant is not excluded from this congressional mandate. While still on active duty, the appellant applied for Chapter 33 benefits stating: I am an active guard reserve (AGR) Judge Advocate Soldier serving on active duty with the U.S. Army. I anticipate retiring from active duty service [on or about] March 2011 [and] I would like to thereafter pursue a career in teaching. I am now hoping to prepare for such post-active duty career by taking some teaching credentialing courses in my off-duty hours. R. at 719. In denying the appellant these "special benefits," the Board failed to correctly apply the law, as I read it. The Board found that the "[v]eteran attended distance learning which is categorized as independent study under 38 C.F.R. § 21.4267." R. at 8. Nowhere in that regulation is "distance learning" mentioned, nor is there a bar to the basic concept. See 38 C.F.R. § 21.4267. The regulation bars educational benefits for any non-accredited course "offered in whole or in part by independent study," defining the term "independent study" as follows: (b) Definition of independent study. (1) VA considers a course to be offered entirely by independent study when-- (i) It consists of a prescribed program of study with provision for interaction between the student and the regularly employed faculty of the institution of higher learning. The interaction may be personally or through use of communications technology, including mail, telephone, videoconferencing, computer technology (to include electronic mail), and other electronic means; (ii) It is offered without any regularly scheduled, conventional classroom or laboratory sessions; and (iii) It is not a course listed in paragraph (c), (d), or (e) of this section. (2) VA considers a course to be offered in part by independent study when-- (i) It is not classified as one of the three types of courses listed in paragraph (c) of this section; (ii) It has some weeks when standard class sessions are scheduled; and (iii) It consists of independent study as defined in paragraph (b)(1) of this section during those weeks when there are no regularly scheduled class sessions. 38 C.F.R. § 21.4267(b) (emphasis added). 12  A veteran is not engaged in "independent study" merely because he attends a course online. Rather, to qualify as "independent study" under § 21.4267 a course must also be offered "without any regularly scheduled, conventional classroom or laboratory sessions." 38 C.F.R. § 21.4267(b)(1)(ii). As long as the appellant is planning on taking part in "regularly scheduled, conventional classroom or laboratory sessions," even online, the course should not have been considered "independent study." The fact that VA approved this course generally after the University submitted the requisite information suggests that the course was indeed "regularly scheduled." R. at 633. VA has repeatedly stated that distance learning is barred because it is considered "independent study." This is not so. To the extent that the regulation can be read differently, "[a]mbiguity is a creature not of definitional possibilities but of statutory context." Brown v. Gardner, 115 S. Ct. 552, 555 (1994). Congress did not broadly exclude a veteran from pursuing independent study with Chapter 33 benefits. Rather, independent study is barred only if the educational institute is not accredited. Compare 38 U.S.C. § 3675, with 38 U.S.C. § 3676. The import of the statutory scheme is not that Congress wanted to prevent veterans from achieving educational goals without flexibility, but that it was worried about potential fraud and abuse of these benefits. Although the regulatory definition of "independent study" has existed for 20 years, "[a] regulation's age is no antidote to clear inconsistency with a statute." Brown, 115 S. Ct. at 557. The fact that VA has interpreted its regulation as a general bar to distance learning is utterly inconsistent with the statutory context of congressional limitations on independent study. Accordingly, the Court should have remanded this case to the Secretary to correctly apply his regulation. 13 

758 F.Supp. 226 (1990) In re MIDLANTIC CORPORATION SHAREHOLDER LITIGATION. Civ. No. 90-1275 (DRD). United States District Court, D. New Jersey. October 11, 1990. *227 *228 Barrack, Rodos & Bacine, Leonard Barrack, Anthony J. Bolognese, Cherry Hill, N.J., for plaintiffs Cheryl Cohen, Custodian for Jason Mark Cohen, Rose B. Rosenbaum, and Barry F. Schwartzman, Co-lead Counsel for Class. Greenfield & Chimicles, Richard D. Greenfield, Mark C. Rifkin, Haverford, Pa., for plaintiff Gerry Banmiller and Co-lead Counsel for Class. Gross & Metzer, Debra R. Gross, Anne D. White, Philadelphia, Pa., for plaintiff Labov and Counsel in the Derivative Claims. Pitney, Hardin, Kipp & Szuch, Clyde A. Szuch, Dennis R. LaFiura, Morristown, N.J. (Skadden, Arps, Slate, Meagher & Flom, Jeremy Berman, New York City, of counsel), for defendants. OPINION DEBEVOISE, District Judge. Pursuant to Federal Rule of Civil Procedure 12(b)(6) defendant Midlantic Corporation and individual defendants Van Buren, Peraino, Rishel, McDonald, Fox, Holman, Hough, and Lewis move to dismiss plaintiffs' complaint for failure to state a claim on which relief can be granted. Specifically, defendants claim that the causes of action alleged in plaintiffs' Consolidated Amended and Derivative Complaint (hereafter "Complaint") sounding in fraud under Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, have been pled with insufficient particularity under Federal Rule of Civil Procedure 9(b). Defendants also claim that several Counts allege failures to disclose mismanagement and to make financial predictions and are thus not actionable under Section 10(b) and Rule 10b-5. Furthermore, defendants move for dismissal of plaintiffs' claims under Sections 14(a) and 20(a) of the Exchange Act, 15 U.S.C. §§ 78n(a), 78t(a), and plaintiffs' shareholder derivative action under Federal Rule of Civil Procedure 23.1 for failure to plead facts sufficient to support actionable claims. Likewise, the legal sufficiency of plaintiffs' pendent state law claim alleging negligent misrepresentation under New Jersey law is challenged for failure to plead adequate facts to sustain a cause of action. Plaintiffs have voluntarily dismissed Count II of the Complaint. Thus plaintiffs do not oppose defendants' motion to dismiss as to Count II of the Complaint asserting claims under Sections 11, 12 and 15 of the Securities Act, 15 U.S.C. §§ 77k, 77l (2), 77o. Accordingly, this opinion will not address the issues raised by defendants with respect to these claims. FACTS Midlantic Corporation [hereafter "Midlantic"][1]*229 is an interstate bank holding company with assets of approximately $23.7 billion dollars and operations primarily serving the mid-Atlantic region but with offices scattered throughout Pennsylvania, New Jersey, Florida, Delaware, Maryland, London, Hong Kong, and the Cayman Islands. Complaint ¶ 6. Midlantic was formed in January 1987 by the reorganization of CBI and Midlantic Banks, Inc. Complaint ¶ 16. Dubbing itself "the Hungry Bankers", Midlantic then engaged in an aggressive expansion campaign which allegedly entailed making increasingly risky loans and investments concentrated in real estate, construction and leveraged buy-outs (LBOs). Complaint ¶¶ 17-19, 30(a). Plaintiffs allege that this expansion program required Midlantic to maximize reported earnings to paint a glowing picture of financial health that veiled the enormous risks assumed by its recent investments and the concentration of its capital committed to such high-risk ventures. As a consequence of this alleged need to boost the profits on the books and conceal the risks entailed by defendants' strategy for expansion, plaintiffs allege that the pressures to continue Midlantic's fast-paced growth led defendants to "under-reserve for potential loan losses and to avoid acknowledgment of the risks inherent in the loans and investments" made by the corporation. Complaint ¶ 19. In other words, Midlantic failed to set aside sufficient funds to cover the amount of loans and investments likely to become non-performing and thus posing a likelihood of vast losses. Plaintiffs further allege that these pressures, inherent in Midlantic's expansion drive, also led defendants to make material misstatements of fact and material omissions of fact in public announcements and publications that perpetuated the illusory image of a financially untroubled corporation experiencing rapid growth of assets and profits which was a safe investment opportunity. The gravamen of plaintiffs' Complaint is their allegation that these material misstatements and omissions were designed to and did in fact induce prospective investors to purchase Midlantic securities at artificially high prices to raise badly needed capital during a period from March 27, 1987 and April 5, 1990 [hereafter "the class period"]. See Complaint ¶¶ 7(f), 22-23, 29-39. On December 20, 1989, Midlantic added $75 million dollars to its loan loss reserves. Plaintiffs allege this increase was accompanied by false and misleading statements to "downplay and conceal the material extent to which the [Midlantic]'s earnings, assets, and shareholders' equity had been overstated, and possible loan losses had been understated." Complaint ¶ 26. Midlantic's loan loss reserves were again increased on April 6, 1990, this time by $110 million. Complaint ¶ 27. Plaintiffs claim that defendants again responded with materially false public statements. Id. The speculative bubble Midlantic had allegedly become apparently burst at or about this time. April 5, 1990 marks the end of the class period, during which plaintiffs claim they and other investors in Midlantic securities were misled by defendants' statements and purchased securities at inflated prices. Midlantic's securities, traded on the NASDAQ exchange, tumbled in price following the announcement that loan loss reserves were to be dramatically increased. Consequently, Midlantic's shareholders absorbed the loss from this fall in the value of their Midlantic securities. A number of these shareholders brought class actions and one derivative action was brought on behalf of Midlantic against the individual defendants for damages incurred as the true financial state of Midlantic came to be appreciated by the financial markets. All actions were consolidated by Pre-Trial Order No. 1 on May 25, 1990. Plaintiffs' first complaint was filed with the Clerk of this Court on March 28, 1990 and a Consolidated Amended Class and Derivative Complaint on May 25, 1990. A second Consolidated Amended Class and Derivative Complaint was filed June 5, *230 1990. They claim, inter alia, that Midlantic, its senior officers, and its directors made a practice of issuing misleading statements and engaging in suspect accounting and managerial practices to conceal risks lying at the very foundation of its loan and investment portfolios and in this manner induced members of the public to invest in Midlantic without the benefit of material information which would have led them to invest elsewhere. Defendants filed this motion July 31, 1990 to dismiss for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), failure to plead fraud with particularity as required by Federal Rule of Civil Procedure 9(b), for lack of actionable subject matter as to the state law Counts III and V, and for insufficiency of service of process as to individual defendants Fox, Holman, Hough and Lewis. Defendants' motion to stay merits discovery was denied by Order dated August 17, 1990 which set a schedule for discovery and production of specified classes of documents. Plaintiffs were to receive the first "wave" of discovery materials, nine categories of documents, on September 4, 1990. A hearing on class certification has been postponed until the disposition of this motion to dismiss. DISCUSSION Defendants bring a Motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Pursuant to Rule 12(b)(6), plaintiffs' complaints must be dismissed for failure to state a claim if defendants demonstrate "beyond a doubt that plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir.1980). All allegations set forth in the complaint must be accepted as true, see Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Walck v. American Stock Exchange, Inc., 687 F.2d 778, 780 (3d Cir.1982), and all reasonable inferences must be drawn in plaintiff's favor, see McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229, 1235-36 (3d Cir.1978). To withstand the motion, it "is not necessary to plead facts upon which the claim is based." Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir.1977). PLEADING REQUIREMENTS FOR FRAUD CLAIMS UNDER RULE 9(b) The majority of defendants' arguments in favor of this motion to dismiss involves the sufficiency of plaintiffs' pleading fraud with particularity under Federal Rule of Civil Procedure 9(b). Thus the standard for pleading fraud under the Rule as construed by the Court of Appeals for the Third Circuit is the logical starting point in considering this motion. Rule 9(b) states In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of the mind of a person may be averred generally. Fed.R.Civ.P. 9(b). The simplicity of this Rule, evident from the text, requires judicial interpretation to properly apply it to complex factual contexts. However, any interpretation given the Rule must be informed by an awareness that "focusing exclusively on the particularity requirement is `too narrow an approach and fails to take account of the general simplicity and flexibility contemplated by the rules.'" Christidis v. First Pennsylvania Mortgage Trust, 717 F.2d 96, 100 (3d Cir.1983) (quoting C. Wright & A. Miller, 5 Federal Practice and Procedure § 1298, at 407 (1969)); see In re Craftmatic Securities Litigation v. Kraftsow, 890 F.2d 628, 645 (3d Cir.1989); Kronfeld v. First Jersey National Bank, 638 F.Supp. 1454, 1463-65 (D.N.J.1986). The Third Circuit's decision in Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786 (3d Cir. 1984) sets forth the standard by which the pleading of a fraud claim under Rule 9(b) is evaluated. In that case the Court found that where the complaint had identified specific "pieces of machinery that were the subject of the alleged fraud," the plaintiff had satisfied Rule 9(b) by pleading the circumstances *231 constituting the fraud. The District Court dismissed the complaint "because [plaintiff] did not describe the date, place or time of the phone calls and letters defendants allegedly used in furtherance of their fraudulent scheme.... failed to set forth `with even minimal particularity the details of the alleged fraud or misrepresentations.'" Seville, 742 F.2d at 791 (quoting Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 567 F.Supp. 1146, 1156 (D.N.J.1983)). The Court of Appeals reversed, concluding that the "complaint [set] forth the nature of the alleged misrepresentations, and while it [did] not describe the precise words used, each allegation of fraud adequately describes the nature and subject of the misrepresentation." Seville, 742 F.2d at 791 (footnote omitted). In reaching this conclusion, the Court stated that Rule 9(b) requires plaintiffs to plead with particularity the "circumstances" of the alleged fraud in order to place the defendant on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior. It is certainly true that allegations of "date, place or time" fulfill these functions, but nothing in the rule requires them. Plaintiffs are free to use alternative means of injecting precision and some measure of substantiation into their allegations of fraud. Id. This Court has held that a Complaint pleads fraud with sufficient particularity where it: (1) "quotes verbatim from the alleged representations", (2) explains "the context in which the representations were made", (3) "described the various defendants involved in the investment program as well as their roles in the scheme", and (4) plaintiffs submitted exhibits in support of the accounts contained in the complaint. CFTC v. American Metal Exchange Corp., 693 F.Supp. 168, 190-191 (D.N.J.1988). The court in American Metal Exchange held further that "even absent allegations with respect to the exact factual context or words constituting the misrepresentation, a description of the nature and subject matter of the representation is sufficient." Id. at 190 (discussing Seville, 742 F.2d 786 (3d Cir.1984) and citing Kronfeld v. First Jersey National Bank, 638 F.Supp. 1454, 1464 (D.N.J.1986)). This flexible approach to the issue of pleading fraud allows for some play in the inherent tension between ensuring that the policies underlying federal securities legislation are effected through the prosecution of civil suits against violators and the policies embodied in Rule 9(b), namely: "(1) to provide a defendant with fair notice of the plaintiff's claim, (2) to protect a defendant from harm to his goodwill, and (3) to reduce the number of strike suits." Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The courts' reconciliation of this tension is thus partially dependant on the facts of each case. If the pleaded facts and supporting allegations permit the inference of a colorable claim for fraud and afford the defendant notice as to which actions or communications are alleged to have been fraudulent, the complaint will withstand a motion to dismiss. In the recent Third Circuit case of In re Craftmatic Securities Litigation, the Court provided an additional rationale for adopting a flexible approach to pleading fraud in securities cases. "Courts must be sensitive to the fact that application of Rule 9(b) prior to discovery `may permit sophisticated defrauders to successfully conceal the details of their fraud,'" 890 F.2d at 645 (quoting Christidis, 717 F.2d at 99-100). Securities cases, always tending toward the complex, have become even more sprawling, labyrinthine and complicated with developments in corporate finance. In the face of such contemporary developments the courts must adjust the balance between Rule 9(b)'s requirement of pleading fraud with particularity and the need to ensure that the securities laws continue to be effective countermeasures to corporate corruption. As the Third Circuit made clear in Craftmatic: "Particularly in cases of corporate fraud, plaintiffs cannot be expected to have personal knowledge of the details of corporate *232 internal affairs. Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir.1987); C. Wright & A. Miller, § 1298 at 416. Thus, courts have relaxed the rule when factual information is peculiarly within the defendant's knowledge or control. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir.1989); Michaels Building Co. v. Ameritrust Co., 848 F.2d 674, 680 (6th Cir.1988); DiVittorio v. Equidyne Extractive Industries, Inc., 822 F.2d 1242, 1248 (2d Cir.1987); see Saporito v. Combustion Engineering Inc., 843 F.2d 666, 675 (3d Cir.1988) (pleadings do not satisfy Rule 9(b); no reason to believe that additional information is in the exclusive control of defendant), vacated on other grounds, 489 U.S. 1049, 109 S.Ct. 1306, 103 L.Ed.2d 576 (1989). 890 F.2d at 645. The Court went on to caution "[n]onetheless, even under a nonrestrictive application of the rule, pleaders must allege that the necessary information lies within defendants' control, and their allegations must be accompanied by a statement of the facts upon which the allegations are based." Id. Still, the Court expressly declined to adhere to the "rigid enforcement" of Rule 9(b) in securities fraud cases. Id. at 645-646. The allegations contained in plaintiffs' Complaint conform to the pleading criteria set forth in Seville and American Metal Exchange. The Complaint quotes verbatim and at great length the representations alleged to have been fraudulently made. The time and context of the statements have been pled with great specificity. The parties making the representations, be they Midlantic or the individual defendants have also been included in the pleadings. It appears that some of these allegations appear on their face to be qualitative statements referring to the quality of Midlantic's credit standards and practices, loan and investment diversity, and "conservative" financial management.[2] Although such statements inject a degree of subjective imprecision into the allegations, it cannot be said that the statements alleged to be false cannot form the basis of a claim sounding in fraud. To hold otherwise would allow corporations and those charged with their management to issue statements calculated to mislead investors by couching them with glowing yet relatively vague language, knowing full well that the investing public would attach to them meanings inducing them to invest in a corporation they otherwise would avoid. The basis for plaintiffs' claim that the statements were fraudulent remains at its foundation a factual matter. While statements concerning the quality and stability of Midlantic's loans, portfolio diversity, adequacy of its loan loss reserves, and philosophy of its management appear to express mere matters of opinion, each allegation contains, at a minimum, a kernel of fact. Each of these matters are subject to proof or disproof as accurate economic evaluations of the financial condition of the corporation. Plaintiffs are entitled to continue with this action to subject their assertions to this process of proof. Rule 9(b) does not require that a plaintiff plead with such particularity that the cause of action *233 be proven prior even to the summary judgment stage of the litigation.[3] At the present stage of this litigation, plaintiffs' allegations must be accepted as true. See D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984). Given this posture, favorable to the plaintiffs, the allegations constitute an actionable factual basis for a securities fraud claim. Nor do defendants' objections that plaintiffs failed to plead scienter with sufficient particularity warrant dismissal of the Complaint. Rule 9(b) clearly states that "... knowledge and other condition of mind of a person may be averred generally." Fed.R. Civ.P. 9(b). Furthermore, given the present posture of this case all reasonable inferences that can be drawn from the pleadings must be drawn in favor of the plaintiff. Given this constraint, defendants' argument that plaintiffs' assertions of scienter are overly conclusory and thus not actionable is specious. Even if I were inclined to accept defendants' characterization, which appears to be a gross oversimplification, the allegations readily permit the inference that defendants are accused of possessing the requisite scienter to state a cause of action for fraud. See In re Craftmatic Securities Litigation, 890 F.2d at 645-646 ("A projection that is issued without a reasonable basis is an untrue statement and actionable under § 10(b) and Rule 10b-5 and is made knowingly or recklessly."); American Metal Exchange, 693 F.Supp. at 191 (citing Kronfeld, 638 F.Supp. at 1465). Finally, defendants' last challenge under the pleading rules for fraud maintains that plaintiffs' allegations of fraud against the defendants collectively rather than individually are fatally defective for not attributing to each individual defendant specific wrongful acts of misrepresentation. This Court has held that a plaintiff need not plead with specificity which fraudulent acts were caused or performed by which individual defendants. See In re First Fidelity Bancorporation Securities Litigation, Fed.Sec.L.Rep. (CCH) ¶ 95299 (D.N.J. Nov. 13, 1989) at 96,392, 1989 WL 222603; see also Petro-Tech, Inc. v. Western Company of North America, 824 F.2d 1349, 1362 (3d Cir.1987). In First Fidelity the Court observed that The complaint clearly alleges the circumstances of fraud, and the Court concludes that where multiple defendants are involved, each in high ranking positions, there is no requirement at this stage of the proceedings to specify what each defendant individually is alleged to have done. It would be virtually impossible before there has been any discovery for the plaintiffs to delineate which defendants were responsible for which acts. To require ... plaintiffs in this type of action [to] identify the specific wrongful acts attributable to particular defendants would place an insurmountable goal and burden to the maintenance of such actions. First Fidelity, Fed.Sec.L.Rep. (CCH) ¶ 95299 (D.N.J. Nov. 13, 1989) at 96,392, 1989 WL 222603. The foregoing passage *234 applies fully to the instant matter. Therefore, the Complaint will not be dismissed on this ground. ACTIONABLE GROUNDS FOR FRAUD UNDER § 10(b) AND RULE 10b-5 Defendant argues that plaintiffs allege no more than mere mismanagement of Midlantic as the source of their woes. The argument continues that under Santa Fe Industries v. Green, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977), mismanagement is insufficient as grounds for an action under § 10(b) and Rule 10b-5. Defendants correctly state the holding of Santa Fe, but their application of that holding to the present case has no merit. It is well established in the Third Circuit that Santa Fe does not apply where defendants have "engaged in conduct expressly forbidden by the statute and the rule." Healy v. Catalyst Recovery of Pennsylvania, Inc., 616 F.2d 641, 646 (3d Cir.1980). In Biesenbach v. Guenther, 588 F.2d 400, 402 (3d Cir.1978), the Court of Appeals "stated that the failure to disclose the motive behind a directors decision is not actionable unless accompanied by objective and external deeds or omissions." In re Craftmatic Securities Litigation, 890 F.2d at 638 (commenting on Biesenbach). "The crucial difference is whether there was misrepresentation or omission in the flow of information ..." Healy, 616 F.2d at 646; see In re Craftmatic Securities Litigation, 890 F.2d at 639. Plaintiff has alleged material misrepresentation and omission in plenty. The allegations assert that defendants made numerous representations with the knowledge they were false and for the fraudulent purpose of inflating the market values of Midlantic securities and inducing investors to purchase these securities at these prices. The complaint also alleges that defendants failed to disclose true material facts known to them in order to achieve these same ends. That the duty to disclose such facts may derive from fiduciary duties in addition to those duties imposed by the federal securities laws is of no moment. See In re First Fidelity Bancorporation Securities Litigation, Fed.Sec.L.Rep. (CCH) ¶ 95,299 at 96,391, 1989 WL 222603. It is reasonably, indeed readily, inferred from the Complaint that plaintiffs statements regarding the sufficiency of loan loss reserves and the character of Midlantic's portfolio were affirmative acts to defraud. Defendants' omissions as to these subjects are alleged to have occurred while they had the requisite scienter for fraud and occurred within the context of consistently misleading public statements. Taken as a whole, the complaint alleges, and unquestionably supports the inference, that defendants engaged in conduct exceeding the boundary of mismanagement and crossing into fraud. The allegations contained in the Complaint are therefore actionable. Defendants also contend that plaintiffs' allegations that defendants' failure to make certain predictions are not actionable under § 10(b) and Rule 10b-5. In particular, plaintiffs allege that: (1) defendants failed to "predict" that Midlantic would have to add $75 million and then another $110 million to its loan loss reserves; (2) its concentration of real estate and construction loans presented extreme risks of losses; and, (3) regulatory examinations by federal officials would have an adverse impact on Midlantic's financial results. Complaint ¶ 30(g)-(j). Defendants argue that these allegations are far too speculative in nature to be actionable. These allegations are not properly considered "predictions". Plaintiffs accuse defendants of knowing that the loan loss reserves would have to be increased and failed to disclose this fact and in fact made material misstatements maintaining that Midlantic's loan reserves were more than sufficient.[4] This does not constitute failing *235 to make a speculative judgement call as to the future state of the corporation; rather, it is an accusation premised on facts alleged with sufficient particularity to sustain a claim of fraud against a motion to dismiss.[5] The third allegation appears on its face to be more of a baseless prediction. However, the paragraph may be construed to allege that either (1) a federal regulatory investigation was ongoing, or (2) that in a heavily regulated industry such as banking and securities trading a regulatory investigation was inevitable. When these reasonable inferences are drawn from the allegation, in either event defendants' statements failed to address a material fact likely to have a major impact on Midlantic's financial standing. Either of these inferences would transform what initially appears to be a mere prediction into a factual issue of materiality beyond the scope of inquiry on a motion to dismiss. Hence, plaintiffs' Complaint will not be dismissed on this ground. CAUSATION BETWEEN THE ALLEGED FRAUD AND SECURITIES SALES Defendants argue that plaintiffs fail to plead that the alleged material misstatements were made "in connection with" securities transactions. Specifically, defendants assert that because many of the alleged misstatements and omissions were made towards the end of the class period it is impossible to discern which of the representations, or lack thereof, exerted an effect on plaintiffs' securities holdings. This argument is without merit. The Third Circuit has unequivocally held that the "in connection with" requirement requires merely "some causal connection between the alleged misrepresentation and the harm incurred when a security is purchased or sold." Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985) (citing Ketchum v. Green, 557 F.2d 1022, 1028 (3d Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 431, 54 L.Ed.2d 300 (1977); Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 194 (3d Cir.1976)). Plaintiffs have pled a connection between their injury, sustained by purchasing securities at inflated prices, and defendants' alleged prolonged practice of making misleading statements through falsehoods and material omissions.[6] Furthermore, the "in connection with" requirement was developed by the Supreme Court to ensure that mere corporate mismanagement did not become the basis for claims under securities laws enacted to protect purchasers of securities and the integrity of financial markets. See Superintendent of Insurance v. Bankers Life and Casualty Co., 404 U.S. 6, 12, 92 S.Ct. 165, 168, 30 L.Ed.2d 128 (1971). For reasons already stated in this opinion, this concern does not impact upon the present case. CLAIMS UNDER SECTION 14(a) OF THE EXCHANGE ACT Plaintiffs bring a claim pursuant to § 14(a) of the Exchange Act, 15 U.S.C. § 78n(a), alleging that material misrepresentations and omissions were made in connection with proxy solicitations for the election of corporate directors at the Annual Meeting of Shareholders on April 18, 1990. Complaint, Count IV. Plaintiffs seek to have the election of these directors voided due to the taint of defendants' alleged unlawful conduct during the solicitation process. Complaint, Prayer for Relief (e). Defendants claim that plaintiffs have not pled transaction causation between the issuance of the proxies and the subject matter of the litigation — the pecuniary harm caused by the effect of defendants' representations. Defendants completely mischaracterize or misread this Count of the Complaint. The harm alleged here is that corporate directors were elected on the basis *236 of materially false or misleading proxy statements. The causation alleged is perfectly clear on the face of the Complaint. Defendants also advance the argument that there are no actionable misrepresentations alleged in the Complaint. The grounds for this charge are that plaintiffs have phrased their allegations as a failure to "disclose the utter failure of the individual defendants and their co-directors to cause Midlantic to disseminate reports to the investing public and to file with the SEC documents in full compliance with the federal securities laws and to continue to overstate its earnings, certain assets and net worth by under-reserving for loan losses by at least $150 million or more." Complaint, ¶ 56. The foundation of the defendants' argument is that the information they did not disclose was either a matter of mismanagement or too speculative and predictive and therefore is not actionable. Both these issues have been disposed of by this opinion in plaintiffs' favor with respect to the § 10(b) and Rule 10b-5 claims. For the reasons previously given in the disposition of these issues, Count IV of plaintiffs' complaint states a valid cause of action. CLAIMS UNDER SECTION 20(a) FOR SECONDARY LIABILITY Plaintiffs claim the individual defendants are secondarily liable as controlling persons pursuant to § 20(a) of the Exchange Act, 15 U.S.C. § 78t(a). See Complaint ¶ 7(e), (f), (g). Section 20(a) provides in pertinent part: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, ... 15 U.S.C. § 78t(a); see Rochez Brothers, Inc. v. Rhoades, 527 F.2d 880, 884 (3d Cir.1975). Defendants move to dismiss this claim for failure to plead that the individual defendants culpably participated in the wrongful acts alleged. "By enacting Section 20(a), Congress wanted to impose liability on persons who were able to directly or indirectly exert influence on the policy and decision making process of others." Rochez Brothers, Inc., 527 F.2d at 884. However, to maintain a cause of action under Section 20(a) a plaintiff must prove that the defendant, the "controlling person", engaged in "culpable participation" in the fraud. Id. at 885. This leaves open to the defendant a "good faith defense" that prevents directors and senior officers from becoming insurers strictly liable for the fraud of others. Id. (discussing Kohn v. American Metal Climax, 458 F.2d 255 (3d Cir.1972) (Adams, J., dissenting and concurring)). Plaintiff has alleged control and culpability to the degree necessary to withstand a motion to dismiss. The Third Circuit has "given heavy consideration to the power or potential power to influence and control the activities of a person, as opposed to the actual exercise thereof." Id. at 890-891 (quoted in In re National Smelting of New Jersey, Inc., 722 F.Supp. 152, 165 (D.N.J. 1989)). The SEC has defined control similarly, as "the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities, by contract or otherwise." 17 C.F.R. § 240.12(b)-2(f). Each defendant was either a director or officer of the corporation with access to information and to policy making processes during the class period. In addition, defendant Van Buren is also alleged to be the Chairman of the Board, the CEO, and a major shareholder of Midlantic. A majority of the Board is pled as defendants along with Van Buren. Substantial weight must be given to the authority, or rather the potential authority, inherent in such corporate positions, considered separately or in concert. Furthermore, prior to discovery in any meaningful sense, plaintiff can hardly be able to plead the precise culpable *237 conduct of each individual defendant.[7] At this stage of the litigation, plaintiffs have sufficiently pled the individual defendants' power to exercise control. AIDING AND ABETTING LIABILITY Both plaintiffs and defendants agree that three elements must be proved to establish aiding and abetting liability for a securities law violation: (1) an underlying securities violation by a primary actor, (2) the party charged with aiding and abetting knew of the fraudulent conduct, and (3) the party charged substantially participated in the perpetration of the fraud. See Walck v. American Stock Exchange, Inc., 687 F.2d 778, 791 (3d Cir.1982) (citing Landy v. FDIC, 486 F.2d 139, 162, 163 (3d Cir.1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974)); Rochez Brothers, Inc., 527 F.2d at 886 (also citing Landy). Defendant argues that plaintiffs have failed to adequately plead the second and third elements. As to the second element of aiding and abetting liability, knowledge of the wrongful conduct of the primary actor, this is yet again another reappearance of the scienter issue dealt with previously in this opinion. Suffice it to say that plaintiffs have met the pleading requirements for scienter[8], for no useful purpose would be served by repetition. Similarly, plaintiffs have satisfied pleading the third element of the cause of action. Not only have plaintiffs pleaded that defendants substantially participated in the fraud as aiders and abettors, they have alleged defendants are primarily liable as well. Complaint ¶¶ 32-33. This element is well pled, alleging the defendants were in positions of control, had access to information concerning the alleged fraudulent statements, and consciously played a substantial role in issuing those statements. Id. CLAIMS FOR NEGLIGENT MISREPRESENTATION Defendants claim that plaintiffs' claim under New Jersey law for negligent misrepresentation must be dismissed for failure to allege actual reliance on the part of the investor-plaintiffs. New Jersey law provides that "an incorrect statement, negligently made and justifiably relied upon, may be the basis for recovery of damages for economic loss or injuries sustained as a consequence of that reliance." Kronfeld, 638 F.Supp. at 1467-68 (citing Rosenblum v. Alder, 93 N.J. 324, 334-335, 461 A.2d 138 (1983)). Defendants assert that plaintiffs failed to allege the requisite reliance. This is simply not the case. The defendants even quote the paragraph of the Complaint where the allegation is made. Plaintiffs allege, inter alia, "In reliance ... directly or indirectly on [defendants'] misrepresentations, in ignorance of the truth and in reliance on the superior knowledge and expertise of the defendants, the Class plaintiffs and other members of the class were induced to purchase Midlantic's securities." Complaint ¶ 52. Hence, plaintiffs plead actual reliance on the allegedly fraudulent misrepresentations themselves and not exclusively on a fraud on the market theory.[9] *238 DERIVATIVE CLAIMS AND PLEADING UNDER RULE 23.1 Defendants seek dismissal of plaintiffs' shareholder derivative claims for failure to make a pre-litigation demand, pursuant to Federal Rule of Civil Procedure 23.1, on the Board of Directors to act in the best interests of the shareholders' rights. Rule 23.1 provides in relevant part: In a derivative action brought by one or more shareholders ... to enforce a right of a corporation ..., the corporation ... having failed to enforce a right which may properly be asserted by it, ... [t]he complaint shall ... allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors ... and, if necessary, from the shareholders ... and the reasons for his failure to obtain the action or for not making the effort. The demand requirement is not necessary where such demand would be futile. Fed.R.Civ.P. 23.1. The issue presented here is whether plaintiffs have adequately pled that a demand on the Board would have been futile and whether making a demand on the shareholders was necessary. According to the Third Circuit, "Whether [plaintiffs have] complied with the demand requirement of Rule 23.1 involves solely an examination of the amended complaint." See In re Kaufman Mutual Fund Actions, 479 F.2d 257, 263 & n. 4 (1st Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 107 (1973). Courts will excuse the derivative plaintiff from the demand requirement when his complaint alleges that a majority of the directors have participated in the underlying wrongdoing or that the board is controlled by the alleged wrongdoers. See Untermeyer v. Fidelity Daily Income Trust, 580 F.2d 22, 23 (1st Cir.1978); Cathedral Estates v. Taft Realty Corp., 228 F.2d 85, 88 (2d Cir.1955). Lewis v. Curtis, 671 F.2d 779, 784 (3d Cir.1982). However, so that the intended effect of Rule 23 is not completely circumvented mere conclusory allegations of wrongdoing will not support an excuse of the demand requirement. See Id. at 785. The Complaint, viewed as a whole, does not present such conclusory allegations. Defendants argue that the Complaint reveals nothing more than the directors' "acquiescence" in the alleged fraudulent conduct and is thus insufficient to excuse the demand requirement. This severely understates the allegations contained in the Complaint. As previously discussed in this opinion, plaintiffs have alleged causes of action against the individual defendants sounding in fraud, for both primary and secondary liability. The allegations are set forth at length and cannot be considered conclusory or as regarded as alleging that defendants were completely passive, rather than active, participants. Furthermore, the Complaint alleges the interests served by the defendants wrongful conduct. These include efforts to: "(i) protect their executive positions and the substantial compensation and prestige they obtained thereby; (ii) conceal and cover up their past misconduct and disregard of internal control and credit control procedures; and, (iii) satisfy their personal desires for aggrandizement and their desire to cause Midlantic and its loan portfolio and assets grow." Complaint ¶ 33. Given the magnitude of the wrongdoing alleged, well pled and assumed as true for purposes of this motion, the board can be said to "lack the requisite disinterestedness to determine fairly whether the corporate claim should be pursued." Lewis, 671 F.2d at 785. Defendants' cautionary argument that allowing a plaintiff to avoid the demand requirement simply by naming a majority of the directors as defendants in a contemporaneous suit is unavailing. Here, the Complaint has already been through the special pleading review under Rule 9(b). This pleading requirement is designed to screen out just the sort of frivolous suits that draw the defendants' ire and concern. Also, in this case the fraud and derivative suits were filed separately. Hence, this was not a situation that presents a threat of abusing the excuse provision to Rule 23.1, where a plaintiff files a fraud or other cause of action as a "smoke screen" for a *239 derivative suit brought without making a demand of the directors. The demand requirement of Rule 23.1 is therefore excused. Defendants also argue that plaintiffs were required to make a demand of the Midlantic shareholders for the desired action pursuant to Rule 23.1. This requirement is not imposed directly by Rule 23.1 but, rather, by state law. Rule 23.1 was drafted to apply both in cases arising under federal law such as those underlying the bulk of plaintiffs' suit and in cases under state law such as the ordinary shareholders derivative action heard in federal court under pendent jurisdiction as is the case here. See Complaint ¶ 62. The shareholder derivative action in this case is brought under New Jersey common law. Complaint ¶ 61. Thus, plaintiffs are required to make a demand of the Midlantic shareholders pursuant to Rule 4:32-5, the New Jersey equivalent of Rule 23.1, unless excused from doing so as a matter of state law. The principles for determining whether a demand on the corporation's shareholders must be made are provided by Escoett v. Aldecress Country Club, 16 N.J. 438, 109 A.2d 277 (1954). In Escoett the New Jersey Supreme Court held that the predecessor of R. 4:32-5[10] required, "that the complaint in a shareholder's derivative action set forth with particularity the efforts of the plaintiff to secure from the managing directors or trustees and, if necessary, from the shareholders such action as he desires, and the reasons for his failure to obtain such action or the reasons for not making such effort." Id. at 449, 109 A.2d 277. The Court, however, drew attention to the less than categorical language of the rule, commenting that "[a]s the terms of the rule itself indicate, the requirement of application to the general body of stockholders is not absolute and will readily give way in the interests of justice." Id. The Court also held that "resort to the general body of stockholders would be unnecessary where it would jeopardize the cause of action or where it affirmatively appeared to be futile or impracticable or otherwise unwarranted." Id. The interests of justice seem to weigh in favor of excusing plaintiffs from making a demand on the shareholders. The logistics of contacting the shareholders of a multibillion dollar publicly held corporation and then actually organizing them into compelling the action plaintiffs seek are daunting. Also, to wait for the corporation's annual meeting entails delay and the potential expense of a bitter proxy battle. Indeed, this course of action seems particularly suspect where, as here, manipulation of the proxy system has been alleged in a well pleaded complaint. Dismissing plaintiffs' derivative action and requiring plaintiffs to make a demand on the shareholders presents these possibilities: (1) force plaintiff to sever the derivative action, in part negating the Order consolidating all the related actions; (2) keeping all the actions consolidated and delay the disposition of the entire case. The former course of action seems to impose a burden on the courts and on the plaintiffs for scant, if any, benefits. The second course will not be entertained. Too much is at risk for the shareholders if plaintiffs' allegations are true and defendants' reputations will remain subject to question if they are false. Finally, it is in the Court's own interest to ensure the expeditious disposition of matters pending before it — including this one. The requirement pursuant to R. 4:32-5 that plaintiffs make a demand on the shareholders of Midlantic is therefore excused. CONCLUSION For the foregoing reasons, defendants' motion to dismiss is hereby denied. An appropriate form of order will be entered. ORDER This matter having been opened to the Court on the application of Pitney, Hardin, Kipp & Szuch, attorneys for defendants, for an order dismissing the Consolidated *240 Amended Class and Derivative Complaint, and this Court having considered the papers submitted in support of said application and in opposition thereto, in accordance with the Opinion filed on even date, IT IS, on this 9th day of October, 1990, ORDERED as follows: 1. The motion is hereby granted with respect to Count II of the Complaint. 2. The remainder of defendants' motion is hereby denied. NOTES [1] "Midlantic", for purposes of this opinion, stands for the holding company and all its subsidiaries. [2] By way of example only, plaintiffs allege that the following statements were materially false and made with fraudulent intent: "Building the loan portfolio has meant an adherence to stringent credit criteria. Midlantic has combined an aggressive leading culture with an excellent record of credit quality that is superior to peer group banks." Midlantic's Annual Report, February 16, 1989. "Midlantic's overall credit quality remains sound, the loan portfolio is well structured and we are appropriately reserved. * * * * * * The Corporation's balance sheet is fundamentally sound and its capital remains strong." Midlantic's Second Quarter Report, August 4, 1989. "On December 20, 1989, Midlantic Corporation announced an increase of $75 million in its forth quarter loan loss provision. This action was taken to reflect the weakened values, and was in keeping with our Company's policy of maintaining an above-average reserve for possible loan losses. This amount will increase our loan loss reserve to a level in excess of industry norms." Letter to Shareholders from Defendants Van Buren and Peraino, December 26, 1989. Complaint ¶ 22. [3] In this regard, defendants' argument that plaintiffs have not pled the nature of the statements' falsity with sufficient particularity overstates the burden that Rule 9(b) places on a plaintiff. Defendants cite repeatedly to Christidis for the proposition that plaintiffs are required to plead why a statement was false by demonstrating its falsity using generally accepted accounting principles. First, the case does not stand for this proposition; the case involved a complaint that specifically alleged as its only ground for demonstrating falsity which made the pleading of such accounting principles and an indication of how they would be applied essential to state a cause of action. Second, Christidis displayed a far less charitable bearing toward pleading securities fraud than do the later cases Seville and In re Craftmatic Securities Litigation. To the extent that Christidis differs in this respect from the cases that followed it, the latter two cases supply the surer guidance and more persuasive authority. While plaintiffs do not allege the falsity of the statements by resort to an application of generally accepted accounting standards, they have alleged the manner in which the statements are false and adequate facts to permit an inference of falsity. Defendants are more than adequately apprised of the basis for plaintiffs' claims on the falsity issue. Accordingly, defendants' argument that falsity has not been pled adequately under Rule 9(b) is untenable. [4] Thus the issue that arises with respect to these allegations is really one of scienter. The allegations of scienter have already been held, supra, to be adequately pled. Scienter having been satisfied, whether these allegations can be considered material is not an issue that need be addressed here and should be left for a jury. See NUI Corporation v. Kimmelman, 593 F.Supp. 1457, 1467 (D.N.J.1984). [5] Thus, "soft information" does not form the basis for these allegations. Furthermore, even if the allegations in ¶ 30 of the Complaint were based on "soft information", the claims still could be actionable as "projections ... made without a reasonable basis." In re Craftmatic Securities Litigation, 890 F.2d at 645-646. [6] Also, given that the named plaintiffs purport to represent unnamed class members and unnamed plaintiffs remain and could be named at any time, to dismiss any allegations or Counts on this ground would be premature to say the least. [7] Defendants cite VT Investors v. R. & D. Funding Corp., 733 F.Supp. 823 (D.N.J.1990) in support of their motion to dismiss. However, in that case the § 20(a), secondary liability, counts were necessarily dismissed and moot because the Counts alleging primary liability were dismissed. Also, the Court stated that to plead "control liability plaintiffs must identify the relationship on which it is based." Id. at 841. The plaintiffs in VT Investors failed to do so; the plaintiffs here have succeeded. [8] Compare Walck, 687 F.2d at 791 (complaint dismissed where plaintiffs completely failed to plead any degree of knowledge of the primary securities law violation). [9] Defendants also seek to parse out a subtle distinction between a "business decision" and an "investment decision". These terms, as defined in Cammer v. Blum distinguish between an audit statement sent directly to an institutional investor to induce an investment and audit reports released to the general public for the same purpose. 711 F.Supp. 1264, 1299 & n. 57 (D.N.J.1989) (citing Rosenblum, 93 N.J. at 345, 461 A.2d 138). The contention is that the former investors are covered under the negligent misrepresentation doctrine while the ordinary public investor remains unprotected. Rosenblum makes no such distinction between these classes of equally foreseeable plaintiffs and such a distinction will not be inferred here. To the extent this opinion diverges from Cammer, I decline to follow it. [10] This rule, R. 4:36-2, reads identically to the current R. 4:32-5.

Electronically Filed Intermediate Court of Appeals CAAP-15-0000363 16-SEP-2016 01:38 PM 

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 29,056 10 HENRY PACHECO, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 13 John M. Paternoster, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Max Shepherd, Assistant Attorney General 17 Albuquerque, NM 18 for Appellee 19 Hugh W. Dangler, Chief Public Defender 20 Allison Jaramillo, Assistant Appellate Defender 21 Santa Fe, NM 22 for Appellant 23 MEMORANDUM OPINION 24 Henry Pacheco (Defendant) appeals from the judgment and the amended  1 judgment, partially suspended sentence and commitment. [RP 18, 32] Defendant 2 raises two issues on appeal, contending that: (1) Defendant was not guilty of any 3 crime, for not returning from a furlough to the county jail, after having been 4 sentenced, both orally and in writing, to the Department of Corrections; and (2) 5 alternatively, if a crime was committed, the correct charge is escape from jail, a fourth 6 degree felony rather than escape from the penitentiary, a second degree felony. [DS 7 3] 8 This Court’s first calendar notice proposed summary affirmance. Defendant 9 filed a memorandum in opposition that persuaded us to propose summary reversal in 10 a second calendar notice. The State now agrees with the proposed disposition but asks 11 this Court to reverse and remand for the district court to enter a guilty verdict and 12 sentence Defendant for escaping from jail pursuant to NMSA 1978, § 30-22-8 (1963), 13 rather than escaping from the penitentiary pursuant to NMSA 1978, § 30-22-9 (1963). 14 After considering the State’s request, however, we decline to do so. See, e.g., State 15 v. Villa, 2004-NMSC-031, ¶¶ 12-13, 136 N.M. 367, 98 P.3d 1017 (holding that giving 16 Defendant notice of the lesser-included offenses after conviction hardly provides 17 Defendant with adequate notice of those charges). This is not merely a re-sentencing 18 issue as the State asserts. As our Supreme Court stated in Villa, this Court cannot 19 convict a defendant on appeal of a charge that the State did not pursue and Defendant 2  1 did not defend below. Id. ¶ 13. 2 For these reasons and the reasons set forth in the second calendar notice, we 3 reverse and remand to the district court to vacate Defendant’s conviction for escape 4 from the penitentiary pursuant to Section 30-22-9. See State v. Hodge, 118 N.M. 410, 5 417, 882 P.2d 1, 8 (1994) (discussing that when the defendant has reserved for appeal 6 an issue that does not deal simply with the sufficiency of the evidence to establish one 7 or more factual determinations but rather a question of law or a mixed question of fact 8 and law, the favorable resolution requires the defendant’s acquittal). 9 IT IS SO ORDERED. 10 ___________________________________ 11 RODERICK T. KENNEDY, Judge 12 WE CONCUR: 13 ___________________________ 14 MICHAEL E. VIGIL, Judge 15 ___________________________ 16 TIMOTHY L. GARCIA, Judge 3 

647 F.3d 772 (2011) UNITED STATES of America, Appellee, v. B.A.D., Appellant. No. 11-1391. United States Court of Appeals, Eighth Circuit. Submitted: June 14, 2011. Filed: August 1, 2011. *773 Al J. Arendt, argued, Pierre, SD, for Appellant. Jay P. Miller, AUSA, argued, Pierre, SD, for Appellee. Before COLLOTON, CLEVENGER,[1] and BENTON, Circuit Judges. CLEVENGER, Circuit Judge. Defendant B.A.D.[2] appeals his juvenile delinquency conviction on two counts of aggravated sexual assault. At trial before the district court,[3] the victim failed to identify B.A.D. as the perpetrator. The victim did, however, provide other testimony concerning the crimes, as did other members of the family (B.A.D. is the victim's uncle). B.A.D., pointing to the failed in-court identification, contends that his conviction lacked sufficient supporting evidence. We disagree, and therefore affirm the district court. I The charged conduct in this case occurred around September 2009. At that time, B.A.D. was 16 years old. He was a member of the Cheyenne River Sioux Tribe, and he lived with his father R.D. on the Lower Brule Indian Reservation.[4] J.D. is B.A.D.'s nephew,[5] and was four years old at the time of the charged conduct. According to the government, B.A.D. engaged in at least two sexual acts (specifically, oral sex and anal sex) with J.D. around this time. On September 2, 2010, the government charged B.A.D. by juvenile information with two counts of aggravated sexual assault. See 18 U.S.C. §§ 2241(c), 2246(2)(A), (2)(B). B.A.D. pled not guilty and the case proceeded to an adjudicatory hearing. The court heard testimony from, among others, the victim J.D., who by this time was five years old; the victim's mother D.D., who is B.A.D.'s half-sister; R.D., father of B.A.D. and grandfather of the victim J.D.; and C.D., R.D.'s wife and B.A.D.'s mother. Trial Tr., United States v. B.A.D., No. CR 10-30074, Dkt. # 53 (D.S.D. Feb. 23, 2011) (trial held Dec. 21, 2010) [hereinafter Trial Tr.]. The victim's mother D.D. was the government's first witness. She described the family relationships discussed above, and laid out how her half-brother B.A.D. lived with their common father R.D. D.D. also testified that she regularly left her son, the victim J.D., at R.D.'s house to be cared for while D.D. attended night classes at a local community college. Id. 20:7-21:18. D.D. *774 testified that she was giving J.D. a shower in late September 2009 when she noticed redness on J.D.'s penis and around his anus. She also testified that she had a conversation that night with J.D., after which she came to believe that J.D. had been the victim of sexual assault. Id. 21:19-25:24. The victim J.D. also testified. In response to the government attorney's questions, J.D. testified that he knew a person named "Uncle [B.],"[6] and described "Uncle [B.]" as "A guy that has been mean to me." Id. 52:21-25. The government attorney asked J.D. if "Uncle [B.]" was in the courtroom, and J.D. said he was not: Q: [I]s this person that you just said was mean to you, your Uncle [B.], is he here in the room with us today? A: No. Q: Okay. What I want you to do is look around the room and see everybody and tell me if your Uncle [B.] is in this room. A: Nope. Q: Okay. You don't see him? A: Nope. Q: Okay. Do me a favor and stand up so you are big and tall. A: (Complies.) . . . Q: Do you see this guy sitting here? A: Yes. Q: In the green shirt? A: Yes. Q: Do you know who that is? A: Nope. Q: That's not your Uncle [B.]? A: Nope. Trial Tr. 53:1-54:1. J.D. went on to describe in detail two sexual assaults upon him by "Uncle [B.]" at a location near where B.A.D. lived with his father. J.D. stated that he did not immediately tell his mother about the assaults because "Uncle B." instructed him not to—as recounted by J.D., "Uncle B.'s" words were "Don't tell her." Id. 54-63. The government also called to the stand Renette Kroupa, an employee at the nearby Indian Health Service clinic who performed a forensic interview and forensic examination of J.D. in October 2009. Ms. Kroupa testified that on her examination of J.D. she discovered a "small fissure" around J.D.'s anus. She acknowledged that this was not the extent of damage a layperson might expect for a victim in these circumstances, but pointed out that nearly a month had passed between the reported incident and her examination. Ms. Kroupa testified that injuries of the type commonly incurred in sexual abuse cases involving anal penetration can heal quickly, especially for small children. On cross-examination, Ms. Kroupa acknowledged that she was unable to draw from her physical examination of J.D. any conclusions about whether he had been sexually abused. Id. 66-86. The defense called B.A.D.'s father R.D. to testify. After first testifying that he never left the defendant B.A.D. alone with J.D., on cross-examination R.D. acknowledged that due to his own health problems, R.D. might have been unaware if the two had been alone and unsupervised for some period of time. See id. 112-16. At the end of R.D.'s testimony, the district court questioned him directly: Q: To your knowledge, is there any other family member of [J.D.] whose name is [B.], besides your son, [B.A.D.]? A: Not that I know of. *775 Q: When [J.D.] was in your household with your son [B.A.D.], by what name did [J.D.] call your son? A: Uncle [B.] Id. 117:4-10. R.D. also testified that he was unaware of any instances where J.D. exhibited confusion about who "Uncle B." was. Id. 119-20. Finally, the defense called C.D., B.A.D.'s mother. Again questioned by the court, C.D. testified that J.D. called her son B.A.D. "Uncle B." She also testified that there had not been major changes to B.A.D.'s appearance since the time of the charged assaults. Id. 151-52. Following the hearing, the court held that, while "it [was] a very close call on these facts," the government had proved B.A.D.'s guilt beyond a reasonable doubt. Findings, United States v. B.A.D., No. CR 10-30074, Dkt. # 41, at 7 (D.S.D. Jan. 4, 2011) [hereinafter Findings]. It sentenced him to twelve months incarceration and four years of juvenile delinquency supervision. B.A.D. timely appealed. This court has jurisdiction to review final judgments of the U.S. District Court for the District of South Dakota. 28 U.S.C. §§ 41, 1291, 1294. II A This court reviews the factual findings of a district court in a juvenile delinquency case for clear error, and accords deference to the court's credibility determinations. United States v. L.B.G., 131 F.3d 1276, 1278 (8th Cir.1997). To determine the sufficiency of the evidence supporting a criminal conviction, this court must "look at the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict." United States v. Black Cloud, 101 F.3d 1258, 1263 (8th Cir. 1996) (citations omitted). We avoid weighing the evidence or assessing the credibility of witnesses. United States v. Meeks, 639 F.3d 522, 527 (8th Cir.2011). Reversal is warranted only if no reasonable fact finder could have found guilt beyond a reasonable doubt. Id. B B.A.D. contends that J.D.'s refusal to positively identify B.A.D. as the perpetrator created ipso facto reasonable doubt as to B.A.D.'s guilt, and thus renders the district court's judgment unsupported by the evidence. B.A.D. notes the paucity of physical evidence connecting him to the crime, noting that the primary evidence against him is J.D.'s testimony that the perpetrator was "Uncle B." B.A.D. argues that this testimony is contradicted by J.D.'s refusal to identify B.A.D. as "Uncle B." in court, so automatically raising a reasonable doubt as to B.A.D.'s guilt. The presence of facial contradictions in a witness's testimony is not itself necessarily grounds for reversal. To the contrary, the resolution of such contradictions is the sole province of the trial fact-finder. See United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir.2007). It is beyond doubt that the judge in this case was privileged to determine that one part of any witness's testimony was credible while another part was not. Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Kohl ex rel. Kohl v. Woodhaven Learning Ctr., 865 F.2d 930, 943 (8th Cir.1989) ("This proposition is so basic, it hardly needs citation."). Only if the credited story were "so internally inconsistent or implausible on its face that a reasonable fact-finder would not credit it" would an appellate court upset a trial determination of what testimony was true and what was not. United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.1995). *776 Witness credibility is "quintessentially a judgment call and virtually unassailable on appeal." United States v. Sicaros-Quintero, 557 F.3d 579, 582 (8th Cir.2009). We therefore turn to the district court's findings. A court conducting a bench trial is obliged to make fact findings sufficient to enable appellate review of the basis for its decision. King v. United States, 553 F.3d 1156, 1161 (8th Cir.2009); see also Fed.R.Civ.P. 52(a). It is not necessary for the court to make a specific finding on every fact. So long as the findings "afford a reviewing court a clear understanding of the basis of the trial court's decision," they are sufficient. Allied Van Lines, Inc. v. Small Bus. Admin., 667 F.2d 751, 753 (8th Cir.1982) (internal quote marks omitted). The district court's findings meet that standard and demonstrate that B.A.D.'s conviction was based in part on the court disbelieving J.D.'s testimony that "Uncle B." was not in the courtroom. While the findings do not expressly state that the trial judge discredited J.D.'s failure to identify B.A.D., they make clear that the court credited the other evidence of B.A.D.'s guilt over the failed identification: 31. The evidence establishes that there is only one Uncle [B.] in [J.D.]'s life. That one Uncle [B.] is the Defendant. The testimony was that [J.D.] does not mistake other people for Uncle [B.] [B.A.D.] lives across the street from the place where [J.D.] testified that "Uncle [B.]" placed his penis in [J.D.]'s mouth and his penis in [J.D.]'s anus. . . . 33. Although it is a very close call on these facts, the Government has met its burden of proof beyond a reasonable doubt on each of the elements of the offense charged. Findings at 7. Reading these findings in the context of J.D.'s inability to identify B.A.D. in court inexorably leads to the conclusion that the trial judge did not credit that failed identification as proof of B.A.D.'s innocence. We find nothing in the record to suggest that this credibility determination was so erroneous as to merit reversal. To the contrary, a reasonable fact-finder could have believed that J.D., a five year-old recounting a sexual attack occurring over a year before and about which his attacker had told him not to share any details, merely balked at specifically identifying his attacker in court. J.D.'s failure to identify B.A.D. could therefore reasonably have been disbelieved, while the remainder of his testimony was given weight. In this context, we owe deference to that credibility determination, and we will not upset it. Heath, 58 F.3d at 1275. Combining this credibility assessment with the other evidence in the record— e.g., J.D.'s identification of "Uncle B." as his molester, the uncontested testimony that B.A.D. was known to J.D. as "Uncle B.," uncontested evidence of B.A.D.'s access to J.D., evidence that B.A.D. could have isolated J.D. from adult supervision, and the close proximity of B.A.D.'s residence to the place where J.D. said he was assaulted—we find B.A.D.'s conviction supported by sufficient evidence. In other words, it was within the capacity of a reasonable fact-finder to find B.A.D. guilty on this evidence. L.B.G., 131 F.3d at 1278. Accordingly, we affirm. NOTES [1] The Honorable Raymond C. Clevenger, III, Circuit Judge for the United States Court of Appeals for the Federal Circuit, sitting by designation. [2] The defendant and the victim in this case are juveniles and members of the same extended family. To protect their privacy, this opinion refers to the defendant, victim, and other family members by initials only. See 18 U.S.C. § 3509(d). [3] The Honorable Roberto A. Lange, United States District Judge for the District of South Dakota. [4] The parties stipulated that B.A.D. is an Indian, that the place where the conduct is alleged to have taken place is in Indian country, and that B.A.D. was a juvenile at the time. Neither party disputes that these stipulations satisfy the prerequisites for B.A.D.'s prosecution by the United States as a juvenile delinquent. 18 U.S.C. §§ 1153 ("Offenses committed within Indian country"), 5032 ("Delinquency proceedings in district courts"). [5] Technically, J.D. is B.A.D.'s half-nephew. As discussed infra, however, the uncontested trial testimony was that within the family B.A.D. was referred to as J.D.'s uncle, and this opinion adopts that usage. [6] "Uncle B.'s" first name is that of the defendant B.A.D.

105 Ariz. 380 (1970) 465 P.2d 360 STATE of Arizona, Appellee, v. Robert QUINONES, Appellant. No. 2033. Supreme Court of Arizona, In Banc. February 19, 1970. Rehearing Denied March 24, 1970. Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee. Meyer & Wortman, by Dennis J. Wortman, Phoenix (later substituted by Robert A. Wertsching, Phoenix), for appellant. UDALL, Justice. Robert Quinones (hereinafter referred to as the defendant) appeals from his conviction of the crime of illegal possession of heroin. His appeal is based upon two grounds. Defendant's first ground for appeal is that he was tricked by an arresting officer into giving an incriminating admission of his address. Defendant asserts that the admission into evidence of his statement of his address violated his constitutional rights under the rationale of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). *381 Secondly, defendant argues that the state failed to offer sufficient evidence as to whether the amount of narcotics involved was susceptible of use, and further that the trial court erred in its instruction to the jury on what constitutes a usable amount of narcotics. Defendant was arrested on May 28, 1968 pursuant to a valid warrant for petty theft. The warrant was served by three members of the Narcotics Division of the Phoenix Police Department. The arrest took place in a one-room apartment in Phoenix where defendant and three other adults were then present. As soon as he was placed under arrest, defendant was advised of his constitutional rights in the form of "Miranda warnings."[1] Defendant was asked whether he understood the warnings, and he indicated that he did. The officer who administered the warnings then indicated he had no questions for defendant at that time. Immediately after the arrest, the officers seized several articles lying on a table in the room. These articles, associated with the use of heroin, included hypodermic needles, a packet of paper containing a light brown substance, a spoon, a cotton wad and a cup of water. All of the persons in the room, including defendant, were then warned that the officers suspected the presence of narcotics and that everyone in the room was to remain until a test could be run to determine the presence of narcotics. When the test result was positive, all those in the room were arrested for a narcotics violation and a search of the room was instituted. Thereafter, while defendant was still in the apartment, one of the arresting officers asked defendant several routine questions pursuant to filling out a "booking slip". When asked his address, defendant responded that his address was the apartment wherein the evidence of narcotics was found. Defendant here urges that the introduction of this statement as evidence at trial to show possession of narcotics violated his constitutional rights. Defendant argues that the arresting officers obtained this statement by trickery. Defendant's position is that, under the guise of asking routine questions pursuant to the misdemeanor arrest for petty theft, the officer violated defendant's rights by obtaining an incriminating admission relating to a wholly separate felony of narcotics possession. In support of his position defendant relies upon Miranda v. Arizona, wherein the Supreme Court stated as follows: "Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." Miranda v. State of Arizona, 384 U.S. 436 at 476, 86 S.Ct. 1602 at 1629 (1966). We accept defendant's abstract proposition that serious constitutional questions are raised when police officers, under the guise of investigating one crime, ask questions pertaining to an entirely different crime without advising the defendant that he is under suspicion of the second crime. However, the record in this case simply does not show that such circumstances occurred here. The trial judge in this case held a hearing in chambers on the issue of the voluntariness of defendant's statement of his address. At this hearing at least two of the arresting officers testified that defendant was twice given "Miranda" warnings; first when he was arrested on the petty theft warrant, and second, when he was arrested on the charge of possession of narcotics. *382 In addition, as noted above, the evidence showed that as soon as the arresting officers saw objects associated with narcotics in the room, they warned everyone in the room that the presence of narcotics was suspected. At oral argument counsel for defendant commendably stated that this fact had escaped his notice in the record.[2] There can be no question that defendant was fully informed that he was at least under suspicion of the felony of narcotics possession. Defendant's contention here that he was tricked without knowledge of this fact is clearly controverted by the record. Defendant's only further contention with respect to the admissibility of his statement is that even though he had been warned of his constitutional rights, and even though he was aware that he was suspected of narcotics possession, he should have been given some further warning before being asked his address. This contention must be rejected. The trial court determined that defendant's statements were made knowingly, voluntarily and intelligently. Once a defendant is fully and fairly apprised of his rights, there is no requirement that warnings be repeated each time that questioning is commenced. State v. Jennings, 104 Ariz. 6, 448 P.2d 62 (1968); People v. Hill, 39 Ill.2d 125, 233 N.E.2d 367 (1968). Defendant's second ground for this appeal relates to the issue of "usable amount" of narcotics. Defendant argues that the State failed to offer evidence of usable amount, and further that the jury was improperly instructed on this question. The amount of heroin involved here is very small, amounting to only .36 milligrams. Defendant correctly points out that under State v. Moreno, 92 Ariz. 116, 374 P.2d 872, and State v. Urias, 8 Ariz. App. 319, 446 P.2d 18 (1968), where the amount of narcotics involved is so small as to not be within the realm of an uninformed layman's knowledge of usability, there must be evidence presented by the State as to its usability and also an instruction to the jury as to the necessity of finding a usable amount. An examination of the transcript in this case reveals that both of these criteria were met here. This is true despite the fact that the briefs for both parties proceed inexplicably upon the assumption that no testimony of usable amount was presented and no instruction on usable amount was given to the jury. The transcript shows that expert testimony was introduced that the amount of narcotics found "could be effectively used as a narcotic heroin." The instructions to the jury included instructions on "usable amount" substantially identical to those instructions approved by this court in State v. Moreno.[3] We therefore must conclude there is no foundation in the record for the errors charged by defendant. Defendant also suggests that there should have been additional testimony and an instruction on whether the substance was usable "under the known practice of narcotics users." Defendant argues that without such specific evidence and instruction, *383 a conviction could be had on the basis of a small amount of a narcotic substance found in vacuum cleaner sweepings from a floor. This hypothetical situation may well present special problems. But we find no requirement for additional expert testimony or jury instruction under the circumstances of the instant case. See State v. Moreno, supra, State v. Urias, supra. Here the narcotic substance was found in a packet, lying on a table. Moreover there was expert testimony explaining how the substance in the packet could be placed in a form for injection by narcotics users. In addition, the packet itself, containing the actual substance in its original form, was admitted into evidence and shown to the jury. We accordingly must conclude that sufficient evidence was presented on the question of "usable amount", and that the jury was properly instructed on this question. Judgment affirmed. LOCKWOOD, C.J., STRUCKMEYER, V.C.J., and McFARLAND and HAYS, JJ., concur. NOTES [1] These warnings were as follows: "You have the right to remain silent. Anything you say can be used against you in a Court of Law. You have the right to the presence of an attorney to assist you prior to questioning, and to be with you during questioning if you so desire. If you cannot afford an attorney, you have the right to have an attorney appointed for you prior to questioning." [2] Defendant's counsel on appeal did not handle the case at trial. [3] The court instructed the jury in the case before us in pertinent part as follows: "You are instructed that the elements of the crime charged, to-wit, unlawful possession of narcotics are these: (1) The person charged must have been in possession of a substance: (2) The substance must have been a narcotic drug: (3) The substance must have been in such quantity and quality to be susceptible of use as a narcotic: (4) The possessor must have knowledge of the possession of such substance. "If you believe from the evidence beyond a reasonable doubt that the defendant possessed a narcotic drug known as heroin, then you are instructed the weight or amount of the drug is immaterial so long as you find that there was a sufficient amount of such drug as to be usable as a narcotic." [Emphasis supplied]

669 S.W.2d 85 (1984) STATE of Tennessee, Plaintiff-Appellee, v. Robert D. FRANCIS, Defendant-Appellant. Supreme Court of Tennessee, at Jackson. April 2, 1984. *86 William M. Leech, Jr., Atty. Gen. & Reporter, Raymond S. Leathers, Asst. Atty. Gen., Nashville, of counsel, for plaintiff-appellee. Eugene D. Lyne, Leland Carter, Memphis, for defendant-appellant. OPINION DROWOTA, Justice. In this appeal from a conviction of sexual battery, defendant contends, inter alia, that the State's use of the missing witness inference during closing argument was prejudicial error. We granted defendant's Rule 11 application for permission to appeal in order to determine whether the State's comment on the failure of the defendant to call his six-year-old daughter as a witness was a proper subject matter of argument. We hold that the trial court erred in allowing the State to make this argument before the jury. We reverse the conviction and remand the case for a new trial. This case arose in 1981 when a Shelby County grand jury returned three indictments against the defendant, Robert D. Francis, for sexual battery of three girls under the age of thirteen. The defendant, a 43 year-old father of two, was alleged to have committed the unlawful acts upon the three neighborhood children while they played in his back yard during a period between May 1, 1980 and August 26, 1981. The trial judge granted the State's motion to consolidate the three indictments pursuant to Rule 13 of the Tennessee Rules of Criminal Procedure. At trial a jury found the defendant guilty of sexual battery as to each of the indictments. The defendant was sentenced to a total of four to seven years imprisonment in the state penitentiary. The defendant's motion for a new trial and a petition for a suspended sentence *87 were both denied. The Court of Criminal Appeals affirmed the conviction. During the summer of 1980 and 1981, Kelli Dobry, her sister Denise, and Cassandra Rene Cobb visited the defendant's home several times each week to play with his two children.[1] The children usually played in the defendant's back yard where a gym set and metal shed were located. The defendant, who worked for the Memphis fire department, often played with the children during the days when he was off from work. Kelli Dobry testified at trial that the defendant touched her buttocks and breasts. These acts took place on several occasions and usually occurred in the metal shed. Additionally, she stated the defendant exposed himself and touched his private parts in her presence. The incidents complained of took place in the summer of 1980 and 1981. The testimony of Denise Dobry and Cassandra Rene Cobb was similar to Kelli's account. Denise Dobry testified that the defendant touched her private parts and exposed himself in her presence on several occasions. Cassandra Rene Cobb testified that the defendant placed his hand in her vagina. A pediatrician, who had treated Cassandra for several years, testified that she examined the child on August 27, 1981 and found that Cassandra's hymenal ring had been torn. While the injury could have been caused in numerous other ways, it was consistent with the insertion of an object like a finger into the vagina. The children did not immediately notify their parents of these incidents because they were afraid of how their parents would react. On August 26, 1981, Kimberly Scott, a thirteen year old who also lived in the neighborhood, placed a letter, which she had typed, in the Dobry's mailbox. After receiving the letter, the parents of these children asked them about the defendant's conduct and the children told them what had happened. As a result of this discussion, the parents went to the police. While the defendant denied these charges, there was considerable testimony from the three girls that the defendant's children were present when the acts took place. The defendant's son, Robert Donald Francis, Jr., who was eight years old at trial, testified that he had never seen his father expose himself in his presence or in the presence of other children. Donald also stated he had never seen his father touch any of the girls under their shorts. Heather Francis, who was six years old at the time of the trial and was four years old when the incidents were said to have taken place, was not called as a witness at trial. On cross-examination by the State, Helen Francis, the defendant's wife, testified that she and her husband were in the process of training Heather to tell the truth and not to tell lies. Helen Francis initially testified she did not know whether her daughter knew the difference between truth and untruth. She went on to say, however, that while Heather was "very immature," she thought Heather knew the difference between telling the truth and telling lies. The State avers that the "mother's testimony did not conclusively establish that [Heather] did not know the difference between truth and untruth." Mrs. Francis further testified that she had never seen her husband mistreat any of the children. In its closing argument, the State called the jury's attention to the fact that the appellant had failed to call his six-year-old daughter as a witness. In pertinent part, the argument was as follows: MR. NEWSON: The children [Don and Heather] were present, did they say that all the children were standing there and looking at us when this was occurring? Specifically, Denise said that the defendant and Heather were in the shed when this happened. And, I asked — I asked Mrs. Francis about Heather. She's *88 [Heather] been up here a few days, she's sitting here listening to me now, and that's regrettable. But she can't tell the difference between truth and untruth. That's what they said. That's why they didn't put her on the stand. Wonder what she would have told us? Mr. Lyne (appellant's counsel): Your honor, ... I want to object. That's improper argument as to — MR. NEWSON: That is not, Your honor. (Simultaneous speech). THE COURT: Well, as I said before when you were arguing, these ladies and gentlemen know arguments are not evidence, so let's just go ahead... . MR. NEWSON: Is it not in the evidence that that little girl was present with Denise when her father did this? It is in evidence. And if it's in evidence it's proper for me to argue it. Why didn't she take that witness stand? Maybe they were afraid she might tell the truth. Maybe. It can't be to keep her from having to hear all of this because she's sitting here listening to all of it right now... . The defendant contends that the trial court erred in allowing the State to make this argument before the jury, and that this error substantially affected the verdict. The Court of Criminal Appeals concluded there was no error, stating that a proper foundation for the argument was laid. Specifically, the appellate court noted "there was evidence that the daughter had knowledge of material facts; that a relationship existed that would naturally incline the witness to favor the defendant; and that the daughter was in the courtroom and was therefore available." The Missing Witness Rule It is well-established that a prosecutor may comment upon the failure of a defendant to call an available and material witness whose testimony would ordinarily be expected to favor the defendant.[2] The United States Supreme Court recognized this common law rule in Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), stating that "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would have been unfavorable." 150 U.S. at 121, 14 S.Ct. at 41. Similarly, this Court has held that a party may comment about an absent witness when the evidence shows that "[1] the witness had knowledge of material facts, [2] that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and [3] that the missing witness was available to the process of the Court for trial." Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979). While the Graves Court spoke of the missing witness rule in terms of creating a "presumption," the rule is now generally characterized as authorizing a permissive inference. State v. Jones, 598 S.W.2d 209, 224 (Tenn. 1980); State v. Sanderson, 550 S.W.2d 236, 238 (Tenn. 1977); National Life & Accident Ins. Co. v. Eddings, 188 Tenn. 512, 518, 221 S.W.2d 695 (1949); See C. McCormick, McCormick's Handbook of the Law of Evidence § 272, at 658 (2d ed. 1972). The mere fact that a party fails to produce a particular person who may have some knowledge of the facts involved does not justify application of the inference against him.[3] However, when it can be *89 said "with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his testimony," an inference may be drawn by the jury that the testimony would have been unfavorable. Burgess v. United States, 440 F.2d 226, 237 (D.C. Cir.1970). Due to the potentially critical effect of the missing witness rule, the Delk requirements set out above are to be strictly construed, particularly when the rights of a criminal defendant may be affected. The reason for this caution is that there are several dangers inherent in the operation of the missing witness rule. The adverse inference may add a "fictitious weight to one side of the case, for example, by giving the missing witness an undeserved significance." Dent v. State, 404 A.2d 165, 171 (D.C.App. 1979). Repeated arguments about an absent witness may also create a false impression of the witness' value in the eyes of the jury. Id. Furthermore, since the missing witness inference is usually invoked in closing argument the opposing party is foreclosed from offering the jury any evidence regarding the decision not to produce the witness. Id. Thus, in determining whether to permit the application of the missing witness inference, the trial judge must make an informed decision as to the absent witness' availability to the process of the court, the witness' capability to elucidate the transaction at issue, and whether a relationship exists between the witness and the party that would naturally incline the witness to favor the party. By implication, the missing witness rule is restricted to witnesses who are competent to testify.[4] For the rule rests on the notion that the absent witness, if produced, would have made an intelligent statement about what was observed. The Supreme Court decision in Graves v. United States, supra, supports this conclusion. In Graves, the government in its closing argument commented upon the defendant's failure to produce his wife at trial. Under an existing common law rule, however, a wife was considered incompetent to testify either against or in behalf of her husband. The Court held the argument was prejudicial error, stating that: Permission to make this comment was equivalent to saying to the jury that it was a circumstance against the accused that he had failed to produce his wife for identification, when, knowing that she could not be a witness, he was under no obligation to do so. The jury would be likely to draw the inference that she was prevented from testifying for her husband because her evidence might be damaging. Graves v. United States, supra, 150 U.S. at 121, 14 S.Ct. at 41. The concerns raised by the Court in Graves are particularly relevant in the instant case. There is no evidence in the record that the defendant's six-year-old daughter was competent to testify. Nor was there any proof that her testimony would not be merely cumulative. In either case the defendant would not be obligated to call his daughter as a witness. Accordingly, we reject the State's contention *90 that a proper foundation for the argument was laid.[5] For it must appear from the evidence that the absent witness was competent to testify before any inference may be asserted against the noncalling party. Without this requirement, the missing witness rule itself is absent of any meaning or reasonable purpose. Ordinarily, this factual determination will not present a problem because it is presumed (prima facie) that a person fourteen years of age or older is competent to testify. Ball v. State, 188 Tenn. 255, 219 S.W.2d 166 (1949); Higgens v. Higgens, 629 S.W.2d 20 (Tenn. App. 1981); See also D. Paine, Tennessee Law of Evidence, § 149, p. 169 (1974). However, where the witness is a child under the age of fourteen, as in the instant case, there is a presumption that the child is incompetent. Ball v. State, 188 Tenn. at 258, 219 S.W.2d at 167. While this presumption is rebuttable,[6] a finding of competency cannot be made in a vacuum. There must be evidence to the effect that the witness possesses the requisite testimonial capacities and understands the nature and obligation of the oath. See State v. Williams, 598 S.W.2d 830 (Tenn. Cr.App. 1980); State v. Nelson, 603 S.W.2d 158 (Tenn.Cr.App. 1980). In the instant case, the State failed to present any evidence establishing that Heather Francis was competent to testify. At best, the testimony of Helen Francis left the issue in doubt. While Heather may have had some knowledge of the acts in question and been available to the process of the court, the threshold issue whether she had the requisite mental capacity to truthfully and accurately relate what she observed was not resolved. On this point, the reasoning of the Connecticut Supreme Court in Cote v. Palmer, 127 Conn. 321, 16 A.2d 595 (1940), is particularly appropriate. In Palmer, a missing witness instruction was requested when the defendant failed to call his 8-year-old daughter as a witness. The Palmer court held the requested instruction was properly denied, concluding that: any testimony she might give would naturally be subject to the infirmities incident to her youth. The trial court lacked such knowledge as to her qualification and credibility as a witness as would have resulted from her being called to the stand and it might well have seemed that under the circumstances the requested charge would have unfairly implied testimonial qualifications and abilities which she might not in fact possess. Id. at 332, 16 A.2d at 600. Since there is no evidence showing the defendant's daughter was competent to testify, the State's argument to the jury that an inference could be drawn from defendant's failure to call her as a witness was improper. It should be noted that when a party intends to argue the missing witness inference, they should inform the court at the earliest opportunity so that an evidentiary hearing, if necessary, can be held to establish whether the requirements for laying a proper foundation under Delk have been met. An advance ruling from the trial court on the permissibility of arguing before a jury the adverse inference to be drawn from the absence of a witness, will ultimately save judicial time and the expense of a retrial. Harmless or Prejudicial Error Upon concluding that the trial court erred in allowing the State to make use of the missing witness, we must now determine whether the error resulted in prejudice to the defendant. Harrington v. State, 215 Tenn. 338, 340, 385 S.W.2d 758 (1965). The court, in Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App. 1976), laid out *91 five factors to be considered in making this determination: 1. The conduct complained of viewed in context and in light of the facts and circumstances of the case. 2. The curative measures undertaken by the court and the prosecution. 3. The intent of the prosecution in making the improper statement. 4. The cumulative effect of the improper conduct and any other errors in the record. 5. The relative strength or weakness of the case. Id. at 344. While the record reveals that the prosecutor's comments were an isolated occurrence in the heat of the trial, the comments were not corrected by the trial judge who should have instructed the jury to disregard the argument. Instead, after defendant's objection was implicitly denied, the prosecutor went ahead and suggested Heather Francis' testimony would have revealed the "truth." While this Court has recognized that wide latitude must be given counsel in arguing their case to the jury, the prosecutor's comment as to what the missing testimony would have been is clearly outside of the evidence and inappropriate. More importantly, however, is the fact that the defendant's credibility was a crucial issue and the missing witness inference directly affected that part of the case. Where the non-calling party's credibility is a crucial issue in a case and the "missing witness inference directly affects that credibility, an improper argument or instruction will ordinarily require reversal." Thomas v. United States, 447 A.2d 52, 59 (D.C.App. 1982). The Supreme Court in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), stated, if one cannot say: with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error, it is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. Id. at 765, 66 S.Ct. at 1248. As Chief Justice Fones stated in Delk, "the line between harmless and prejudicial error is in direct proportion to the degree of the margin by which the proof exceeds the standard required to convict, beyond a reasonable doubt." Delk v. State, supra, at 442. Our review of this record convinces us that this was an extremely close case and we cannot say beyond a reasonable doubt that the error was harmless. Since the trial court erred in permitting the State to utilize the missing witness inference which may have substantially damaged defendant's credibility with the jury, we hold that the conviction must be reversed and the case remanded for a new trial. FONES, C.J., and COOPER, BROCK and HARBISON, JJ., concur. NOTES [1] At the time of the trial, Kelli Dobry, Denise Dobry and Cassandra Rene Cobb were respectively 13, 10 and 11 years old. The defendant's children, Don and Heather, were respectively 8 and 6 years old at the time of trial, in March of 1982. [2] See D. Paine, Tennessee Law of Evidence, § 46, p. 43 (1974), § 46, p. 31 (Cum.Supp. 1981), and cases cited therein. For a collection of cases from other state and federal courts, see Annot., 5 A.L.R.2d 893 (1949). [3] The inference is not appropriate where the evidence shows, for example, that the absent witness is truly unavailable, his testimony would be immaterial, or the witness is as likely to be favorable to one party as another. For cases holding the inference to be inappropriate, see, e.g., Poor Sisters of St. Francis v. Long, 190 Tenn. 434, 447, 230 S.W.2d 659 (1950) (witness outside of state and beyond the jurisdiction of the court and it was not possible to compel her attendance as a witness); Conboy v. State, 2 Tenn.Cr.App. 535, 548, 455 S.W.2d 605 (1970) (witness under care of a physician and unable to attend court, 80 girls attending slumber party could not testify to anything other than cumulative facts); Henderson v. New York Life Ins. Co., 194 Tenn. 46, 56, 250 S.W.2d 11 (1952) (doctors not under control of plaintiff and were as available to defendant as they were to the plaintiff); see also Brown v. United States, 414 F.2d 1165, 1166-67, n. 2 (D.C. Cir.1969) (witness was unimportant); James v. State, 223 Ga. 677, 157 S.E.2d 471 (1967) (absent witness' testimony would be privileged); Knox v. State, 112 Ga. 373, 37 S.E. 416 (1900) (no evidence that witness was competent) State v. DePaolo, 5 N.J. 1, 73 A.2d 564, 574 (1950) (absent witness was biased against the party). [4] Among the courts which have addressed this aspect of the missing witness rule, there is a wide agreement that the rule requires the absent witness to be competent to testify before any inference may be drawn by the jury. See, e.g., Bisno v. United States, 299 F.2d 711, 721 (9th Cir.1961); Cote v. Palmer, 127 Conn. 321, 16 A.2d 595 (1940); Kindell v. State, 413 So.2d 1283, 1288 (Fla.App. 1982) (Pearson, J., concurring); Contreras v. State, 242 Ga. 369, 249 S.E.2d 256 (1978); Knox v. State, 112 Ga. 373, 37 S.E. 416 (1900); Floyd v. Colonial Stores, Inc., 121 Ga. App. 852, 176 S.E.2d 111 (1970); Byington v. State, 106 Ga. App. 247, 126 S.E.2d 698 (1969). [5] The State argues that "the requirements for laying a proper foundation prior to commenting on the failure to call a particular witness do not include a determination concerning the competency of the witness who did not testify." Although Delk did not specifically set out competency as a predicate for comment on a missing witness, it was certainly implied and contemplated in the Delk decision. [6] See e.g., Franks v. State, 187 Tenn. 174, 213 S.W.2d 105 (1948) (no error in allowing 7-year-old to testify).

726 S.E.2d 708 (2012) 315 Ga. App. 227 In the Interest of R.W., a child. No. A11A2177. Court of Appeals of Georgia. March 27, 2012. *710 Melissa Elizabeth Lawrence, Craig T. Pearson, John Thomas Durden, Jr., for the Interest of R.W. PHIPPS, Presiding Judge. After the burglary of an Evans County pharmacy, R.W. was adjudicated delinquent and ordered into restrictive custody. R.W. appeals from the juvenile court's order of adjudication and its order of commitment and restrictive custody. R.W. claims: that the adjudication of delinquency is erroneous because the evidence was insufficient to corroborate the testimony of his accomplice; that his adjudication and disposition were "tainted" by the filing into the record of extraneous and prejudicial material; that the juvenile court was predisposed to order him into restrictive custody and improperly relied on facts not in evidence; and that the juvenile court's commitment order was not based on a proper analysis of the factors which, by statute, it was required to consider. For reasons that follow, we find no reversible error and affirm. The evidence presented at the adjudicatory hearing shows that on June 12, 2010, approximately 27 guns were stolen from Kemp's Pharmacy. According to Jordy Melvin, he, R.W., and Dewayne Evans broke the store window with a barrel, entered the premises, smashed the gun cases inside, and put the guns from the cases, including multiple silver revolvers, into a bag. They divided the proceeds of the crime among themselves, and R.W.'s share was eight or nine guns. Also on June 12, 2010, officers responded to a report of fighting at the Hillside Apartments.[1] After they arrived, officers saw R.W. running away from the apartments. A door was open to one of the rooms, and officers entered and found a .38 caliber pistol and bags of marijuana inside. The pistol was identified as one of the weapons stolen from the pharmacy. Officers later learned the apartment belonged to a Mr. Freeman. Charles Freeman testified that on June 12, his girlfriend dropped him and R.W. off at the Hilltop Apartments, where Freeman went to his brother's room and knocked on the door. When his brother did not answer, Freeman went to another room, identified alternately as his aunt's room or his uncle's room. The police later arrived at the apartments. According to Freeman, "I was in my uncle['s] room getting away from my girlfriend.... So I ... went in there, and my uncle [told me] they was chasing us ..." It appears that the police searched Freeman's brother's room. Freeman was not specific about where R.W. went after the two arrived at the apartments, testifying that "I was just out there. And [R.W.] was out there too." Monique Moody, who considered R.W. "like a nephew," testified that the morning after the burglary she saw R.W. and Javan Wise in her living room with several guns. According to Moody, she could not count the number of guns, but there were more than two. She was unable to say there were more than five, but there were not more than ten, and one of the guns was "shiny silver." Moody did not keep any guns in her house, and, upon seeing R.W. and Wise with the weapons, she asked them to leave. According to Moody, they had to "gather them up" before they left. *711 1. R.W. contends that the evidence was insufficient to corroborate Melvin's testimony that he participated in the burglary. R.W. asserts that without such corroboration the evidence was insufficient to establish that he was delinquent. We disagree that Melvin's testimony was not sufficiently corroborated. "To establish delinquency based on acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts."[2] Accomplice testimony must be corroborated in felony cases where the only witness is the accomplice.[3] In addition, "testimony which concerns the identity of other participants must be corroborated by some means independent of the testimony of the accomplice."[4] "But only slight evidence from an extraneous source as to a defendant's identity and participation is needed to corroborate an accomplice's testimony. And, such evidence may be entirely circumstantial."[5] Nevertheless, "the corroborating evidence must do more than cast on the defendant a grave suspicion of guilt."[6] Here, the evidence showed that on June 12, 2010, the same day as the burglary, shortly after the arrival of police R.W. ran from apartments where a gun stolen from the pharmacy was later found; thus, a trier of fact could conclude that R.W. fled from police and that his flight showed consciousness of guilt.[7] "The corroborating evidence... may include defendant's conduct before and after the crime was committed."[8] The state, however, did not offer any evidence that R.W. fled from the room containing the weapon, and so R.W.'s flight from police, if that were the only corroborative evidence, may have cast only a suspicion that R.W. was involved in the burglary. But given the peculiar nature of the crime, in which numerous guns were stolen, and the evidence that very shortly after the burglary R.W. was seen in possession of between three and ten guns, the trier of fact could infer that R.W. was in unexplained possession of the proceeds of the crime.[9] Viewed in a light most favorable to the delinquency adjudication,[10] the extraneous evidence, even if slight and entirely circumstantial, connected R.W. to the burglary.[11] "If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient."[12] Because Melvin's testimony was corroborated, the evidence was sufficient for any rational trier of fact to find R.W. delinquent.[13] *712 2. R.W. argues that his trial and disposition were "tainted" by the filing of an "investigation packet" into the record. The packet contained police reports and interviews that R.W. claims were prejudicial and inadmissible. R.W. posits that the state, by filing the investigation packet, invited the trier of fact to consider it, and that prejudice should be presumed and his conviction reversed. But R.W.'s argument is based on nothing more than unsupported speculation. "Because this was a bench trial, there is a presumption, in the absence of a strong showing to the contrary, that the trial judge sifted the wheat from the chaff, ignored illegal evidence and considered only legal evidence."[14] The presumption has "no place where it affirmatively appears to the contrary,"[15] but R.W. points to nothing that affirmatively shows the juvenile court improperly considered the investigation packet. Accordingly, we find no error. 3. After R.W. was adjudicated delinquent, the juvenile court held a hearing and thereafter confined R.W. to a youth development campus for 44 months and 10 days, and ordered him released on his 21st birthday. R.W. argues that the juvenile court erred in its commitment order because the court was predisposed to order him into restrictive custody, made conclusions without a proper basis, relied on facts not in evidence, and failed to properly analyze the factors set forth in OCGA § 15-11-63(c). R.W. does not challenge the juvenile court's conclusion that his adjudication of delinquency constituted a designated felony act.[16] "Where a child is found to have committed a designated felony act, the order of disposition ... shall include a finding based on a preponderance of the evidence as to whether ... the child does or does not require restrictive custody under [OCGA § 15-11-63]."[17] [T]he court must consider five factors in determining whether to order restrictive custody, including the needs and best interest of the juvenile; his record and background; the nature and circumstances of the offense; the need for community protection; and the age and physical condition of the victim.[18] The weight of each factor, and the ultimate decision about whether restrictive custody is warranted, is within the discretion of the juvenile court.[19] (a) R.W. claims that the juvenile court erred in its commitment order because it was predisposed to order him into restrictive custody. After the delinquency adjudication hearing, the judge remarked that he "plan[ned].. to give [R.W.] the exact same sentence as the last one," but must "go through the different things on the record...." Consequently, any alleged predisposition to commit R.W. to restrictive custody is belied by the court's pronouncement of intent to review the record before issuing any ruling. The juvenile court, following a hearing and "upon considering the evidence presented, made the requisite finding in its order to determine whether restrictive custody was required."[20] We find no error. (b) R.W. further complains that the judge made certain statements at the disposition hearing that were not warranted by the evidence. The judge commented during the disposition hearing that incarceration *713 was the only way to protect the county from "all these crimes you've done — and probably a bunch of them we don't know about yet." The judge also commented that because R.W. helped steal the guns, those guns were used in other crimes, and that "[w]hile I don't know the exact causation, one girl was shot — and now paralyzed." While it appears these two statements may have contained speculation on the part of the juvenile court judge, the statements are not replicated in the juvenile court's written order, which sets forth, at length, the court's basis for committing R.W. to restrictive custody. "While a judge's oral statements on the record may provide insight into the intent of [his] subsequent written judgment, any discrepancies between the two must be resolved in favor of the written judgment."[21] Accordingly, we cannot conclude that the oral statements made by the judge during the hearing show that the juvenile court abused its discretion in placing R.W. in restrictive custody. (c) R.W. also claims that in its written commitment order the juvenile court drew unwarranted conclusions from the evidence, failed to properly address the five factors set forth by OCGA § 15-11-63(c), and relied on facts not in evidence. R.W. contends that the juvenile court drew unwarranted conclusions in finding (i) that the safety of the employees and owner of the pharmacy were not important to R.W. at the time of the burglary and (ii) that no restitution was paid to cover the damages. R.W. admits that the latter is true, and the first finding is an inference that the juvenile court could draw from the evidence. We find no error. R.W. also maintains that the juvenile court failed to address the initial factor required to be considered under OCGA § 15-11-63(c), his needs and best interests. The commitment order shows that, under the heading of "The Needs and Best Interests of the Juvenile," the juvenile court found R.W. to be "in need of secure confinement and rehabilitation before he is allowed to return to the community." This is sufficient to show that the court considered R.W.'s needs and best interests.[22] R.W. also argues that in considering the fifth factor, the age and physical condition of the victim, the juvenile court made erroneous findings of fact. Specifically, after noting that Harold Kemp was the owner of the business burglarized, the court found that insurance on Kemp's store covered all the damages except for a $1,000 deductible, but that Kemp "had additional out of pocket expenses in security enhancements to the store of $16,850.00." We can find no basis in the record for the court's findings as to the dollar amount of the insurance deductible, that Kemp made security enhancements to the store, or as to the cost of the security enhancements, and so we agree with R.W. that the trial court's findings were erroneous in this respect.[23] "[A]n abuse of discretion occurs where the trial court significantly misapplies the law or clearly errs in a material factual finding."[24] Here, the juvenile court's analysis of the five factors rests heavily on its lengthy and detailed discussion of R.W.'s record and background, and on the nature and circumstances of this and the other offenses for which R.W. had been adjudicated delinquent. As the juvenile court notes at the beginning and end of its written analysis, this incident marked the fifth time R.W. had been adjudicated delinquent for offenses which would, if committed by an adult, constitute *714 felonies. Kemp's insurance deductible and security enhancements are not, in the context of the commitment order, material findings of fact, and the evidence supports the juvenile court's ultimate finding that restrictive custody was warranted. It follows that the error was harmless,[25] and that the juvenile court did not abuse its discretion in placing R.W. in restrictive custody. Judgment affirmed. ANDREWS and McFADDEN, JJ., concur. NOTES [1] The Hillside Apartments apparently included motel rooms. [2] In the Interest of Q.S., 310 Ga.App. 70, 72(1), 712 S.E.2d 99 (2011). [3] OCGA § 24-4-8. [4] Hill v. State, 236 Ga. 831, 833, 225 S.E.2d 281 (1976) (citation omitted). [5] Smith v. State, 257 Ga.App. 595, 597(1), 571 S.E.2d 817 (2002) (footnotes omitted). [6] Smith v. State, 238 Ga. 640, 642, 235 S.E.2d 17 (1977). [7] See Ellison v. State, 265 Ga.App. 446, 448(1), 594 S.E.2d 675 (2004) (flight from the residence which had marijuana in many rooms showed consciousness of guilt of possession of marijuana and was sufficient to corroborate accomplice testimony); Davis v. State, 154 Ga.App. 803, 804(2), 269 S.E.2d 874 (1980) (testimony of accomplice as to defendant's participation in burglary corroborated by defendant's flight on foot after the getaway car was stopped by police several days after the burglary). [8] King v. State, 268 Ga.App. 811, 813(1), 603 S.E.2d 88 (2004) (citation omitted). [9] See, e.g., Inman v. State, 182 Ga.App. 209, 355 S.E.2d 119 (1987) (recent possession of stolen property, not satisfactorily explained, is sufficient basis for the corroboration of an accomplice's testimony). [10] See In the Interest of A.B., 296 Ga.App. 350, 674 S.E.2d 401 (2009). [11] Kesler v. State, 249 Ga. 462, 466(2), 291 S.E.2d 497 (1982) (circumstantial evidence tying the defendant to the crime and justifying an inference of guilt is sufficient to corroborate an accomplice's testimony). [12] Bradford v. State, 262 Ga. 512, 513, 421 S.E.2d 523 (1992) (citation and punctuation omitted). [13] Richardson v. State, 305 Ga.App. 850, 852, 700 S.E.2d 738 (2010) (independent evidence was sufficient to corroborate testimony of accomplice, and cumulative evidence was sufficient for a rational trier of fact to find defendant guilty of the charged crime). [14] Mays v. State, 306 Ga.App. 507, 512(2), 703 S.E.2d 21 (2010) (punctuation and footnote omitted). [15] In the Interest of A.D., 282 Ga.App. 586, 589(2), 639 S.E.2d 556 (2006) (citation and punctuation omitted). [16] The juvenile court's commitment order shows that R.W. had previously been adjudicated guilty of four acts which, if committed by an adult, would constitute felonies. "`Designated felony act' means ... [an] act which, if done by an adult, would be a felony, if the child committing the act has three times previously been adjudicated delinquent for acts which, if done by an adult, would have been felonies." OCGA § 15-11-63(a)(2)(B)(vii). [17] OCGA § 15-11-63(b). [18] In the Interest of J.W., 306 Ga.App. 339, 341(3), 702 S.E.2d 649 (2010). See OCGA § 15-11-63(c). [19] In the Interest of Q.S., supra at 77(2), 712 S.E.2d 99. [20] In re S.F., 312 Ga.App. 671, 675(2)(a), 719 S.E.2d 558 (2011) (emphasis omitted.) [21] In the Interest of S.S., 276 Ga.App. 666, 667, 624 S.E.2d 251 (2005) (footnote omitted). [22] In the Interest of J.A.C., 291 Ga.App. 728, 731(3), 662 S.E.2d 811 (2008). [23] A state's brief would have been particularly helpful to this court in assessing R.W.'s claim that these facts cannot by supported by the substantial appellate record. The state has not, however, filed an appellee's brief as required by our Rule 23(b) ("A brief shall be filed by the appellee in all criminal appeals when the State is the appellee; and upon failure to file such brief, the State's representative may be subject to contempt."). After our independent but necessarily limited review, the appellate record appears consistent with R.W.'s claim that the factual findings at issue are unsupported. [24] State v. Pickett, 288 Ga. 674, 679(2)(d), 706 S.E.2d 561 (2011); In the Interest of Q.S., supra at 77-78(2), 712 S.E.2d 99. [25] See In the Interest of I.C., 300 Ga.App. 683, 686 S.E.2d 279 (2009) (any error as to the court's challenged specific finding was harmless, as juvenile court's findings otherwise accurately reflected nature and circumstances of offense); In the Interest of J.A.C., supra (juvenile court's reference to the defendant's "previous convictions" was harmless because the remainder of the order showed that the trial court was aware that the defendant's background included only one delinquency adjudication); C.P. v. State, 167 Ga.App. 374, 377(4), 306 S.E.2d 688 (1983) (error in stating number of delinquent adjudications was harmless because "appellant could have received restrictive custody for the designated felony act of aggravated assault alone, and certainly with consideration of his extensive record").

986 F.Supp. 409 (1997) ST. PAUL MERCURY INS. CO., v. WILLIAMSON, et al. No. CIV. A. 1:93-1902. United States District Court, W.D. Louisiana, Alexandria Division. October 22, 1997. *410 *411 *412 Marshall G. Weaver, Brian B. Ripple, Henican James & Cleveland, Metairie, LA, Frederick B. Alexius, Provosty Sadler & deLaunay, Alexandria, LA, Gary J. Rouse, Ronald L. Riggle, Monroe & Lemann, New Orleans, LA, Gregory L. Jones, Farrar Law Firm, Pineville, LA, for St. Paul Mercury Ins. Co. J. Ransdell Keene, Office of J. Ransdell Keene, Shreveport, LA, Christopher A. Hostage, Terrance G. Reed, Reed & Hostage, Washington, DC, Roark M. Reed, Waxahachie, TX, for Robert Williamson. J. Ransdell Keene, Office of J. Ransdell Keene, Shreveport, LA, Terrance G. Reed, Reed & Hostage, Washington, DC, Roark M. Reed, Waxahachie, TX, for Sonya Williamson. J. Ransdell Keene, Office of J. Ransdell Keene, Shreveport, LA, for Arlone Belaire. Seahorse Farms, Lafayette, LA, pro se. W. Gerald Gaudet, Robert M. Kallam, Bradley J. Haight, Vorrhies & Labbe, Lafayette, LA, Nancy J. Marshall, Ambrose V. McCall, James A. Nugent, Deutsch Kerrigan & Stiles, New Orleans, LA, Campbell E. Wallace, Spyridon, Koch et al, Metairie, LA, for Richard Vale. W. Gerald Gaudet, Robert M. Kallam, Bradley J. Haight, Vorrhies & Labbe, Lafayette, LA, Campbell E. Wallace, Spyridon Koch et al, Metairie, LA, for Haynes Best Western of Alexandria Inc., Best Western Intern. Inc., H. L. Haynes, H.L. Haynes, Mrs., H & L Holding Co., American General Fire & Casualty, Maryland Casualty Co. W. Gerald Gaudet, Robert M. Kallam, Bradley J. Haight, Vorrhies & Labbe, Lafayette, LA, for H L & H Holding Co. MEMORANDUM RULING AND JUDGMENT TUCKER L. MELANÇON, District Judge. Before the Court are five Motions for Summary Judgment filed by the various counterdefendants in this case. Counterdefendant Best Western International (BWI) has filed two partial motions for summary judgment, one seeking dismissal of counterplaintiffs' claims pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO) and the other seeking dismissal of counterplaintiffs' state law claims. Counterdefendants St. Paul Mercury Insurance Company and Richard Vale have each filed single motions for summary judgment seeking dismissal of all counterplaintiffs' claims. Finally, counterdefendants Mr. and Mrs. H.L. Haynes, H & L Holding Company, Haynes Best Western of Alexandria, American General Fire and Casualty Company, Maryland Casualty Company, and Best Western International collectively filed a summary judgment motion seeking dismissal of all counterplaintiffs' claims. For the reasons *413 that follow, all of the above motions are GRANTED. History A. Procedural Background The consolidated actions forming this case arise from the prosecution of an allegedly fraudulent tort claim by Sonya J. Williamson and her husband Robert Williamson. In 1990, Sonya Williamson filed a personal injury action in the Civil District Court for the Parish of Orleans against Haynes Best Western Motel of Alexandria (HBW), its insurers and its related entities. Williamson alleged that "she was electrocuted on 21 July 1989 while attempting to turn off the light in her room in the [HBW]." Williamson v. Haynes Best Western of Alexandria, 688 So.2d 1201, 1202 (La.Ct.App. 4th Cir.1997). The jury found the accident was either staged or fraudulent, and judgment was entered in favor of the defendants. Williamson, 688 So.2d at 1204. On January 29, 1997 the Louisiana Fourth Circuit Court of Appeal affirmed the jury's verdict. Id. at 1242. The Louisiana Supreme Court denied applications for writs filed by the Williamsons on June 20, 1997, and the state court judgment is now final. Williamson v. Haynes Best Western of Alexandria, 695 So.2d 1355 (La.1997). The Williamsons also have initiated a separate state court action in Civil District Court for the Parish of Orleans, seeking to nullify the judgment rendered in Sonya Williamson's personal injury action. St. Paul Mercury Insurance Company (St.Paul) was one of the named defendants in Sonya Williamson's personal injury action. St. Paul instituted this action on November 4, 1993, naming as defendants Robert Williamson, Arlone Belaire, Robert Williamson's mother, and Seahorse Farms, a Williamson family business. R. 1, paras 4-6. On December 12, 1994, St. Paul amended its complaint to add Sonya Williamson as a defendant. R. 76. St. Paul alleges that the Williamsons staged the electrical shock accident and that the Williamsons and Belaire have a lengthy history of asserting fraudulent personal injury claims. See R. 1, Exhibit A. St. Paul seeks recovery of the expenses incurred in connection with the defense of Sonya Williamson's personal injury action, and other damages, under civil RICO, 18 U.S.C. § 1961, et seq., and under state law. R. 1, paras 51-52. On September 25, 1996, the Williamsons filed a counterclaim against St. Paul, HBW, Mr. and Mrs. H.L. Haynes, H & L Holding Co. (HLH), American General Fire Company (American), Maryland Casualty Company (Maryland) and Richard Vale. R. 171. Vale was one of the defense attorneys in Sonya Williamson's personal injury action. The remaining counterdefendants are Best Western owners, entities or insurers that were named defendants in the personal injury action. The counterclaim generally alleges that the fraud defense asserted in Sonya Williamson's personal injury action, and as a basis for recovery in this action, is itself fraudulent. R. 273, paras 3-5. The Williamsons assert civil RICO violations against Vale, and they claim the other counter-defendants are vicariously liable and liable as aiders and abettors to Vale's RICO violations. R. 273, paras 55-60. Finally, the Williamsons bring nine separate state law claims against the counterdefendants. R. 273, paras 69-107. As a protective measure, the Williamsons filed a separate action in this court against the counterclaim defendants asserting the same bases of recovery (Civil Action No. 96-2263). That separate action has been consolidated with this case. The Court will consider the motions for summary judgment as addressing both the claims asserted in the counterclaim and the claims forming the basis of the consolidated case. For simplicity's sake, in this opinion, the Court will refer to the movants collectively as counterdefendants and to the Williamsons as counterplaintiffs. When the counterclaims were first filed, counterdefendants filed motions to dismiss based upon failure to state a claim upon which relief could be granted. R. 181; R. 200. On April 3, 1997, Magistrate Judge Roy S. Payne issued a Report and Recommendation that all of the motions to dismiss be denied. R. 258. That Report and Recommendation was adopted by this Court on May 9, 1997. R. 300. Magistrate Judge *414 Payne also instructed counterplaintiffs to file an amended counterclaim. R. 258, p. 12. Counterplaintiffs filed their Second Amended Answer and Second Amended Complaint on April 23, 1997. In response, counterdefendants St. Paul and Vale again filed motions to dismiss on May 29, 1997 and June 17, 1997, respectively. R. 319; R. 343. A Report and Recommendation was issued by Judge Payne on September 25, 1997. R. 678. Magistrate Judge Payne recommended that the motions to dismiss be denied in all respects except with regard to the counterplaintiffs' state law claim pursuant to Louisiana Revised Statute 12:1220, which he recommended be dismissed with prejudice. R. 678, p. 11. This Court adopted Magistrate Judge Payne's Report and Recommendation on October 21, 1997. Finally, there has been related litigation in the Eastern District of Louisiana. In 1993, the Williamsons sued a number of defendants, including present counterdefendants, alleging a conspiracy to deprive the Williamsons and others of their civil rights. Sonya Williamson, et al. v. Ellis Pisciotta, et al., Civil Action No. 93-3729. By motion of the Williamsons, the civil rights claims against all defendants except Maryland Casualty Company, Ellis Pisciotta, Don Dixon and Larry Reagan were dismissed with prejudice. Williamson, 688 So.2d at 1204. U.S. District Judge Ginger Berrigan dismissed the claims against Maryland, Pisciotta, Dixon and Reagan without prejudice. Id. More recently, in January, 1997, U.S. District Judge Edith Brown Clement enjoined the Williamsons from asserting in the state action in nullity, or in any other action, any claims arising from the alleged civil rights violations. B. Factual Background Counterplaintiffs allege that on July 21, 1989, Sonya Williamson was electrocuted in Room 170 of the Haynes Best Western Motel (HBW) in Alexandria, Louisiana. R. 273, para. 8; R. 607, Exhibits 61, 62. The electrocution allegedly occurred when Sonya Williamson came into contact with a hanging lamp that had been soaked in water due to a leak in the ceiling of Room 170. Williamson, 688 So.2d at 1206. In March, 1990, Sonya Williamson filed a personal injury action against BWI, HBW and its owners, the Hayneses, and their insurers in the Civil District Court for the Parish of Orleans. Id. at 1202. After a three-and-a-half month trial, the jury returned a verdict in favor of the defendants, "finding that although Sonya Williamson was `injured' while in the Haynes Best Western Motel, the accident was either staged or fraudulent." Id. at 1204. All of the defendants in the personal injury action were represented by the Blue Williams law firm through its partner Stephen Little. R. 406, p. 4; R. 572, p. 3. Mr. Little died in May, 1991, and Richard Vale, also a partner at Blue Williams, was substituted as counsel of record. R. 572, p. 3. Vale represented the defendants at trial. Id. The fraud defense asserted by Vale at trial was based upon extensive evidence which is laid out in detail in the Louisiana Fourth Circuit Court of Appeal's decision. See Williamson, 688 So.2d at 1206-39. Briefly, Vale relied upon the Williamsons' extensive insurance claim history, which included at least thirty five lawsuits filed between 1969 and 1989 on behalf of Robert Williamson, Sonya Williamson and/or Arlone Belaire. R. 1, Exhibit A; see also 688 So.2d at 1222-23. Each of these suits involved personal injuries arising from various accidents. See 688 So.2d at 1228-34. In addition, Vale presented evidence suggesting the various Williamson family businesses "were not viable business entities" but rather were vehicles for obtaining insurance coverage. Id. at 1225-26. Vale also argued that the circumstances surrounding the alleged electrocution suggested fraud. These circumstances included the fact that the Williamsons were staying in a hotel in Alexandria over one month period when they lived in the same town, 688 So.2d at 1208, 1235, and that during that month "the Williamsons requested to be moved from room to room ... prior to their having settled in Room 170 ... the only room of the ones inhabited by the Williamsons that had a crawl space in the ceiling that was accessible to room guests." Id. at 1207. The accident was unwitnessed by anyone other than Robert Williamson and he continually refused medical treatment on behalf of his wife following the alleged electrocution. Id. at *415 1209-11, 1235. Finally, Vale asserted that the medical evidence of Sonya Williamson's alleged injuries indicated fraud. Id. at 1211-21. It revealed "[t]he ER doctor found no marks or burns on Sonya's skin to show electricity had entered her body." Id. at 1211. In fact, "[a]ll ER tests were normal." Id. The state court jury chose to credit much of the evidence presented by Vale as they determined that any injuries suffered by Sonya Williamson "w[ere] either staged or fraudulent." Id. at 1204. Vale hired Mr. George Cassellas as a non-testifying expert during the defense of the personal injury action. R. 575, p. 9; R. 607, Exhibit 12, pp. 23-25. On July 21, 1991, Vale and Cassellas traveled to the HBW to inspect Room 107, the room in which Sonya Williamson was allegedly electrocuted. R. 607, Exhibit 12, p. 6. While in Room 107, Cassellas inspected the electrical system and took pictures of the hanging lamp involved in the alleged accident and the electrical fixtures in the room. R. 607, Exhibit 12, pp. 10-16, Exhibit 13. In the course of his inspection, Mr. Cassellas determined that there was stray voltage at the light switch located on the wall. R. 607, Exhibit 17, pp. 9-10; Exhibit 16, p. 2. On July 11, 1997, this Court issued a Memorandum Order that "the facts known and the opinions held by Mr. George Cassellas are not discoverable." R. 430. In addition, on August 8, 1997, the Court conducted an on the record, in camera interview of Cassellas and concluded there was "no reason to alter its previous ruling that Mr. Cassellas is protected as a non-testifying expert pursuant to Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure." R. 540. Prior to Cassellas' investigation of Room 170, the Williamsons' own electrical expert, Dr. Leonard Adams, inspected the room. R. 575, Exhibit 14; R. 563, Exhibit A. Dr. Adams found no violations of the National Electric Code. R. 563, Exhibit A, p. 32. In addition, Dr. Adams indicated that extraneous voltage at the wall switch could not have caused Sonya Williamson's electrocution at the hanging lamp. Id. at 37-38, 54. The Williamsons hired a second electrical expert, Dr. Eugene Tims, who inspected Room 170 after the Cassellas inspection. R. 607, Exhibit 27, pp. 1-2. Barbara Dubois, an HBW manager was present at this inspection and she informed Tims that the electrical system then in place in Room 170 was unchanged from the time of the alleged July 21, 1989 accident. Id. Counterplaintiffs claim that by the time Tims examined Room 170, the toggles of the wall switches formerly examined by Cassellas and the hanging lamp itself had been replaced. R. 607, p. 15. In addition, at some time prior to the trial of Sonya Williamson's personal injury action, Vale and another defense attorney inspected a crawl space between Room 170 and the room directly above it—Room 270. R. 607, Exhibit 25, p. 165. Counterplaintiffs claim that photographs of this crawl space were taken by Vale and that these photographs reveal there is no concrete slab between Room 170 and Room 270. Id., Exhibit 27. Finally, a drain hole exists on the second floor of the HBW just above Room 170. R. 607, Exhibit 2, p. 38. Some evidence suggests that this drain hole was drilled soon after Sonya Williamson's alleged accident. Id. Summary Judgment Standard A motion for summary judgment shall be granted if the pleadings, depositions, and affidavits submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Once the movant produces such evidence, the burden shifts to the respondent to direct the attention of the court to evidence in the record sufficient to establish that there is a genuine issue of material fact requiring a trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The responding party may not rest on mere allegations made in the pleadings as a means of establishing a genuine issue worthy of trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). If no issue of fact is presented and if the mover is entitled to judgment as a matter of law, the court is required to render the judgment prayed for. Lavespere v. Niagara Mach. & Tool Works, *416 Inc., 910 F.2d 167, 178 (5th Cir.1990). Before it can find that there are no genuine issues of material fact, however, the court must be satisfied that no reasonable trier of fact could have found for the non-moving party. Id. Analysis A. The RICO Claims 1. The RICO Statute In Crowe v. Henry, 43 F.3d 198 (5th Cir. 1995), the Fifth Circuit articulated a "plain english" reading of the RICO statute. According to Crowe, the four applicable subsections of the RICO statute state: (a) a person who has received income from a pattern of racketeering cannot invest that income in an enterprise; (b) a person cannot acquire or maintain an interest in an enterprise through a pattern of racketeering activity; (c) a person who is employed by or associated with an enterprise cannot conduct the affairs of the enterprise through a pattern of racketeering activity; and (d) a person cannot conspire to violate subsections (a), (b), or (c). Crowe, 43 F.3d at 203, 18 U.S.C. § 1962(a)— (d). Crowe goes on to explain that there are common elements to each of the four RICO subsections. "These common elements teach that any RICO claim necessitates `1) a person who engages in 2) a pattern of racketeering activity, 3) connected to the acquisition, establishment, conduct, or control of an enterprise.'" Crowe, 43 F.3d at 204 (emphasis in original), citing Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 242 (5th Cir.1988). In the civil context, the RICO statute provides substantial remedies. Any person found to have violated the statute is liable for treble damages, costs, and attorney's fees. 18 U.S.C. § 1964(c). Here, counterplaintiffs allege that counterdefendant Vale conducted the affairs of an enterprise through a pattern of racketeering activity in violation of subsection 1962(c). R 273, para. 58. Counterplaintiffs further allege that each counterdefendant, is liable as an aider and abettor in the 1962(c) violation and that each counterdefendant "ratified" the actions of Vale. Id. at paras. 40, 60. With the exception of St. Paul, all counterdefendants are also charged with vicarious liability for Vale's alleged 1962(c) violation. Id. at para. 59. Finally, a claim is made by counterplaintiffs that all counterdefendants conspired to violate the RICO statute in violation of subsection 1962(d). Id. at para. 65. Because the Court finds counterplaintiffs have failed to establish genuine issues of material fact regarding Vale's alleged RICO violations, it is unnecessary for the Court to address the issues of ratification, vicarious liability and aider and abetter liability. 2. RICO Persons "The RICO person in a civil or criminal action is the defendant." Crowe, 43 F.3d at 203. A RICO person is defined as "any individual or entity capable of holding a legal or beneficial interest in property." 18 U.S.C. § 1961(3). While this definition seems extremely broad, the Fifth Circuit has identified a limiting principle. "[T]he RICO person must be one that either poses or has posed a continuous threat of engaging in acts of racketeering ... The continuous threat requirement may not be satisfied if no more is plead than that the person has engaged in a limited number of predicate racketeering acts." Delta Truck, 855 F.2d at 242. Participation in "isolated" or "sporadic" predicate acts does not qualify an individual or legal entity as a RICO person. Crowe, 43 F.3d 198 (5th Cir.1995). None of the counterdefendants have argued they are not "RICO persons." As a result, for the purposes of these motions, the Court will assume that all counterdefendants are RICO persons as required by the RICO statute and Delta Truck. 3. Pattern of Racketeering Activity The pattern element of a RICO claim has two components: "1) predicate acts—the requisite racketeering activity, and 2) a pattern of such acts." In re Burzynski, 989 F.2d 733, 742 (5th Cir.1993). For a RICO claim to survive a motion for summary judgment, there must exist genuine issues of material fact for each component. Counterplaintiffs allege 251 acts of mail fraud, one *417 act of witness intimidation and one act of bribery as a pattern of predicate acts. The Court will address the mail fraud, witness intimidation and bribery allegations in turn. a) The Predicate Acts of Mail Fraud In their Second Amended Answer, counterplaintiffs identify 251 mailings which allegedly constitute mail fraud. See R. 174, Exhibit A. The mail fraud statute prohibits the use of the United States mails in furtherance of a scheme to defraud. 18 U.S.C. § 1341; U.S. v. Curry, 681 F.2d 406, 410 (5th Cir.1982). To establish the predicate act of mail fraud, a plaintiff must prove three elements: "(1) a scheme or artifice to defraud, (2) specific intent to commit fraud, and (3) use of the mails for the purpose of executing the scheme to defraud." U.S. v. Blocker, 104 F.3d 720, 730 (5th Cir.1997). In short, a plaintiff must prove that the mails were used for the purpose of carrying out a purposeful scheme to defraud. Here, counterplaintiffs allege a scheme to defraud that included: "(1) misrepresenting the availability and amount of insurance coverage; (2) misrepresenting that the premises were free of defects and that Mrs. Williamson could not have been injured by the electrical fixtures in the room; and (3) misrepresenting that Sonya Williamson's injuries were not covered by insurance because of fraud." R. 273, para. 48. This scheme allegedly had the dual purpose of defrauding the counterplaintiffs and CIGNA Insurance Company (CIGNA) of "money and property" and of defrauding "Sonya Williamson, CIGNA, the state court, and the state court jury" of "money or property or their honest services." R. 23 7, para. 48. Of the 251 mailings alleged as acts of mail fraud, 120 of them are worker's compensation checks mailed by CIGNA to pay for Sonya Williamson's medical care and maintenance. R. 174, Appendix A. Counterplaintiffs claim CIGNA is a "victim" of counterdefendants' fraudulent scheme because it made "disability and health care payments that are rightfully the legal responsibility of the insurer [counterdefendants]." R. 273, para. 45. Due to its alleged "victim" status, counterplaintiffs assert CIGNA's mailings constitute acts of mail fraud. R. 607, pp. 35-36. Counterplaintiffs correctly note "that the mailing in a federal mail fraud [claim] need not be sent by the defendant or his co-conspirator. It may be sent by a victim of the plot or an innocent third party." U.S. v. Manges, 110 F.3d 1162, 1169 (5th Cir.1997). However, this principle applies only "so long as the [victim's] mailing is `incident to an essential part of the scheme, . . . or a step in [the] plot.'" Id., citing Schmuck v. U.S., 489 U.S. 705, 710-11, 109 S.Ct. 1443, 1447-48, 103 L.Ed.2d 734 (1989). Thus merely identifying CIGNA as a "victim" of counterdefendants' scheme does not elevate CIGNA's mailings to incidents of mail fraud. Rather, evidence must exist which tends to show "the alleged scheme's completion [was] dependent in some way upon the information and documents which passed through the mails." U.S. v. Pazos, 24 F.3d 660, 665 (5th Cir.1994). Here, the alleged fraudulent scheme involves alleged misrepresentations made to Sonya Williamson's attorneys regarding the amount and availability of insurance to induce a settlement below fair value and alleged misrepresentations made to the state court judge and jury regarding the cause of Sonya Williamson's injuries. R. 273, para. 48. Counterplaintiffs have failed to submit any evidence indicating that the mailing of worker's compensation checks by CIGNA was an "integral" part of this alleged scheme. Manges, 110 F.3d at 1169; Pazos, 24 F.3d at 665. Because completion of counterdefendants' alleged scheme was in no way dependent upon the CIGNA mailings, those mailings do not constitute acts of mail fraud. However, even absent the CIGNA mailings, counterdefendants have alleged that various mailings by counterdefendant Vale furthered the alleged scheme to defraud. R. 174, Appendix A. Thus if evidence indicates both the existence of a scheme to defraud and that Vale's mailings furthered that scheme, counterplaintiffs have established predicate acts of mail fraud. "The definition of scheme to defraud is quite broad." U.S. v. Curry, 681 F.2d 406, 410 (1982). It "is not defined according to technical standards; ... it ... need only involve fraudulent representations or omissions reasonably *418 calculated to deceive persons of ordinary prudence and comprehension." U.S. v. Finney, 714 F.2d 420, 423 (5th Cir.1983). After a review of all the evidence submitted by the parties, the Court finds counterplaintiffs have failed to establish any issue of material fact regarding the existence of a "scheme to defraud." Regarding the scheme to induce a settlement below fair value, counterplaintiffs have forwarded no evidence indicating how settlement efforts were impacted by the alleged scheme to defraud. See R. 607, pp. 35-39 and supporting Exhibits. In addition, counterdefendants have submitted answers to interrogatories, R. 575, Exhibit 7, discovery correspondences, R. 575, Exhibit 8, and responses to requests for production, R. 575, Exhibit 9, which indicate that discovery requests made on behalf of Sonya Williamson regarding insurance coverage and policies were answered by Vale. There exists no evidence of a fraudulent scheme to induce a settlement. The alleged scheme to present a fraudulent defense in Sonya Williamson's personal injury cause of action also fails for lack of evidence. Counterplaintiffs allege that Vale, on behalf of counterdefendants, presented a defense that Sonya Williamson's claim was fraudulent when, in fact, Vale, knew this could not have been the case. R. 607, pp. 15-23; R.273 paras. 48-49. This allegation rests upon facts supposedly inconsistent with a fraud defense known to Vale at the time he presented this defense to the state court jury. These facts include: the facts and opinions of George Cassellas, the inspection of and photographs of the "crawl space" between Room 170 and Room 270 at the Haynes Best Western Motel (HBW), the possibility that the toggles of the wall switch and the lamp itself in Room 170 were changed, and the fact that there existed a drain hole above Room 170 of the HBW. See supra pp. 7-9 and cited Exhibits. Because the facts and opinions of Cassellas have been held privileged and inadmissible at trial, see R. 430; R. 540, they cannot be used to defeat summary judgment. Newport Ltd. v. Sears, Roebuck & Co., 6 F.3d 1058, 1064 (5th Cir.1993). Any change in the conditions of the wall switch or lamp were made after Sonya Williamson's electrical expert, Dr. Leonard Adams, had an opportunity to inspect Room 170 and after that expert found no violations of the National Electric Code. R. 575, Exhibit 14, pp. 32-35. In a later deposition, Dr. Adams even indicated that "stray voltage at the [wall] switch" would have made no difference as to whether or not Sonya Williamson could have been electrocuted at the hanging lamp in Room 170. R. 575, Exhibit 15, pp. 125-26; Exhibit 17, pp. 58-60. Thus even assuming that Cassellas' opinions are admissible and that they were known to Vale during Sonya Williamson's personal injury trial, they do not establish that the electrocution of Sonya Williamson could not have been staged or fraudulent as Vale asserted at trial. The alleged alterations of the wall switch or hanging lamp are not indicative of a scheme to defraud. Likewise, the fact that certain photographs do not reveal a cement slab between Rooms 170 and 270, R 607, Exhibit 23, does not confirm a scheme to defraud Sonya Williamson or the state court judge and jury, nor does the fact that a drain hole may have been drilled above Room 170 after Sonya Williamson's alleged electrocution. R. 607, Exhibit 2, p. 38. The fraud defense developed by Vale was largely premised on the assumption that the Williamsons staged Sonya Williamson's electrocution. See R. 607, Exhibit 70, pp. 93-96. The photographs of the "crawl space" and existence of a drain hole do not undermine the legitimacy of this defense. In addition, counterplaintiffs have made no allegation that the existence of the drain hole or the "crawl space" itself was not discoverable by the Williamsons prior to the personal injury trial. In fact, Sonya Williamson's attorneys questioned a defense witness at trial regarding the drain hole. R. 607, Exhibit 9, p. 45. In short, none of the evidence submitted by counterplaintiffs indicates that Sonya Williamson's electrocution could not have been staged or fraudulent. Quite to the contrary, an abundance of evidence pointed to the possibility of fraud, see Williamson, 688 So.2d at 1206-38, and Vale's efforts to emphasize this *419 evidence at trial did not represent a scheme to defraud the Williamsons or the state court in any way. A plaintiff must demonstrate a scheme to defraud to prove the predicate act of mail fraud, U.S. v. Blocker, 104 F.3d at 730. Counterplaintiffs have failed to do so, and thus the mail fraud allegations fail as RICO predicate acts. b) The Predicate Act of Witness Intimidation Counterplaintiffs allege a violation of the federal "Witness Protection Act" as a further predicate act supporting their theory of a pattern of racketeering activity. R. 273, paras. 50-52. In relevant part the Act prohibits the knowing use of intimidation, physical force, threats, corrupt persuasion, or misleading conduct with the intent to "(1) influence, delay, or prevent the testimony of any person in an official proceeding; ... [or] (2) cause or induce any person to ... be absent from an official proceeding to which such person has been summoned by legal process." 18 U.S.C. § 1512(b)(1), (b)(2)(D). The Act focuses upon intimidation of witnesses in federal court proceedings. "As used in sections 1512 and 1513 of this title ... the term `official proceeding' means a proceeding before a judge or court of the United States." 18 U.S.C. § 1515(a)(1)(A). In addition, certain "proceeding[s] involving the business of insurance whose activities affect interstate commerce" are covered by the Act, but only those proceedings "before any insurance regulatory official or agency ... to examine the affairs of any person engaged in the business of insurance." 18 U.S.C. § 1515(a)(1)(D). Counterplaintiffs point to a single encounter between Vale and Cassellas as witness intimidation. R. 607, pp. 40-41. During this encounter Vale allegedly "accosted, ... raised his fist in anger, and told Mr. Cassellas to cease and desist disclosing the results of the Vale-Cassellas inspection." R. 273, para. 51; see also R 607, Exhibit 23, pp. 4-5. These actions of Vale allegedly constitute a violation of Title 18, United States Code, Section 1512(b) because "[a]t the time of these acts of intimidation, these federal court proceedings were underway, and plaintiffs intended to bring to the attention of this Court, and the jury, the testimony and evidence of George Cassellas." R. 273, para. 52. This Court has already concluded that "the facts known and the opinions held by ... George Cassellas are not discoverable [because] [t]here has been no voluntary waiver of the work product privilege . . ." R. 430, p. 1. In addition, following a fifty-five minute, in camera interview with Mr. Cassellas, this Court found "no reason to alter its previous ruling that Mr. Cassellas is protected as a non-testifying expert pursuant to Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure." R. 540. Thus George Cassellas is ineligible to be a witness in "these federal court proceedings" as counterplaintiffs contend. R. 273, para. 52. Because he was retained by Vale as a non-testifying expert during the defense of Sonya Williamson's state court personal injury action, Vale's alleged "intimidation" of Cassellas amounted to nothing more than an effort to protect privileged information. In addition, the documents supporting counterplaintiffs' Consolidated Opposition Brief To The Motions For Summary Judgment reveal that, at the time of the confrontation between Vale and Cassellas, Cassellas was preparing to testify before a state tribunal, not a federal one. The affidavit of Scott Hymel, who served as a paralegal to the attorneys for Sonya Williamson from 1990 to 1996, explains "I attended a hearing in Civil District Court in November 1995 in the nullity action.... While I was in the hallway outside of the courtroom, I saw Richard Vale come up to George Cassellas and physically threaten him ..." R. 607, Exhibit 23, p. 4 (emphasis added). The Witness Protection Act only "guard[s] the integrity and effectiveness of proceedings over which a federal body clearly has authority." Puckett v. Tennessee Eastman Company, 889 F.2d 1481 (6th Cir.1989). The encounter between Vale and Cassellas does not represent a violation of the "Witness Protection Act" because Cassellas is ineligible to be a witness in this federal court proceeding and because the only contact between Vale and Cassellas occurred during a state court matter. *420 c) The Predicate Act of Bribery Counterplaintiffs' Second Amended Complaint only alleges predicate acts of mail fraud and witness intimidation. See R. 273, paras. 47-54. However, in their Consolidated Opposition Brief To The Motions For Summary Judgment, counterplaintiffs assert "bribery" as a third predicate act in support of their RICO claims. R. 607, p. 41. Federal Rule of Civil Procedure 9(b) states "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." The Fifth Circuit interprets Rule 9(b) as requiring "the plaintiff to allege `the existence of facts and circumstances sufficient to warrant the pleaded conclusion that fraud ha[s] occurred' or face dismissal of his claim." Norman v. Apache Corporation, 19 F.3d 1017, 1022 (5th Cir.1994), citing Haber Oil Co. v. Swinehart, 12 F.3d 426, 439 (5th Cir.1994). The purpose of this interpretation is to "preclude litigants from filing baseless complaints and then attempting to discover unknown wrongs." Shushany v. Allwaste, Inc., 992 F.2d 517, 521 (5th Cir.1993). Thus "a district court has the ability to grant a summary judgment on facts not briefed by the movant, as long as the non-movant has notice of the issue." Turco v. Hoechst Celanese Chemical Group, Inc., 101 F.3d 1090, 1093 (5th Cir.1996) (emphasis added). Here, the pattern of racketeering activity alleged by counterplaintiffs is based upon fraud. "The Williamsons contend that counterdefendants falsely accused them of fraud and that they did so by perpetrating a fraud upon the state court, the state court jury, and the Williamsons." R. 607, p. 2. The pattern of fraudulent conduct asserted within Second Amended Complaint only includes predicate acts of mail fraud and witness intimidation. R. 273, pp. 20-21. Allegations of bribery do not appear in the Second Amended Complaint, Id. As such, counterplaintiffs have failed to plead this predicate act with specificity as required by Federal Rule of Civil Procedure 9(b). Because counterdefendants were not "on notice of the [bribery] issue," the Court will not consider the allegation of bribery raised for the first time in counterplaintiff's Consolidated Opposition Brief. Turco, 101 F.3d at 1093. In sum, the Court finds that there exists no genuine issue of material fact regarding counterplaintiffs' allegations of mail fraud and witness intimidation. The Court will not consider the allegation of bribery raised for the first time in counterplaintiffs' Consolidated Opposition Brief. Each of the alleged predicate acts supporting counterplaintiffs' RICO claims have failed. Where no predicate acts exist, there can be no "pattern of racketeering activity." 18 U.S.C. § 1961(5); Word of Faith World Outreach Center Church v. Sawyer, 90 F.3d 118, 122 (5th Cir.1996). Thus the RICO claims asserted in counterplaintiffs' Second Amended Complaint must be dismissed. Even assuming the existence of the alleged predicate acts, counterplaintiffs' RICO claims fail because there does not exist the requisite pattern of predicate acts for the reasons set forth below. d) The Pattern of Predicate Acts A plaintiff must demonstrate that alleged predicate acts constitute a "pattern of racketeering activity." Burzynski, 989 F.2d at 742. To prove a pattern of racketeering activity "a plaintiff ... must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1988) (emphasis in original). The element of "relatedness" is established if the predicate acts have the "same or similar purposes, results, participants, victims, or methods of commission." Id. at 240, 109 S.Ct. at 2901. To establish the "continuity" element "a plaintiff ... must prove ... a continuity of racketeering activity, or its threat." Id. at 241, 109 S.Ct. at 2902. Such continuity "may be shown by either a closed period of repeated conduct, or an open-ended period of conduct that `by its nature projects into the future with a threat of repetition.'" Word of Faith, 90 F.3d at 122, citing H.J. Inc., 492 U.S. at 241, 109 S.Ct. at 2901-02. In Word of Faith, the Fifth Circuit articulated its approach to the RICO pattern requirement. "[W]here alleged RICO predicate *421 acts are part and parcel of a single, otherwise lawful transaction, a `pattern of racketeering activity' has not been shown." 90 F.3d at 123. See also Burzynski, 989 F.2d at 742-43; Calcasieu Marine National Bank v. Grant, 943 F.2d 1453, 1464 (5th Cir.1991). The Word of Faith Court emphasized that "[s]hort term criminal conduct is not the concern of RICO." Id., citing Calcasieu, 943 F.2d at 1464. Rather, a RICO claim must present a "threat ... of continued criminal acts." Id. Assuming arguendo that counterdefendants committed the alleged predicate acts of mail fraud, there exists no evidence of a "threat of continued criminal acts." Word of Faith, 90 F.3d at 123. In Burzynski, the Fifth Circuit dismissed a RICO claim where the alleged predicate acts all occurred during the defense of a lawsuit. 989 F.2d at 742-743. Finding that "[a]ll of the alleged predicate acts took place as part of the Burzynski I litigation," the Fifth Circuit held "[t]he conduct did not constitute or threaten longterm criminal activity." Id. at 743 (emphasis in original). Rather, "the alleged multiple acts of fraud" were deemed "part and parcel of a single, discrete and otherwise lawful ... transaction ... the defense of a lawsuit." Id. at 742. Here, every cognizable mail fraud allegation is based upon the mailings of motions, pleadings, discovery requests, or other documents related either to the defense of Sonya Williamson's personal injury action or to the present case. R. 174, Appendix A.[1] The scheme to defraud allegedly supporting the mail fraud allegations involves events which occurred during the defense of the personal injury action. R. 607, pp. 35-40. Likewise, the alleged act of witness intimidation occurred during a hearing on the Williamson's motion to have the state court jury verdict declared a nullity. R. 273, para. 51; R. 607, Exhibit 23, pp. 4-5. Finally, even assuming the predicate act of bribery had been properly plead, it also allegedly took place during discovery in Sonya Williamson's personal injury action. R. 607, p. 41; R. 607, Exhibit 11, pp. 38-39. Counterplaintiffs argue that because these alleged predicate acts occurred over a "substantial span and duration" and involve several "species of conduct," they must be considered a pattern of racketeering activity. R. 607, pp. 42-43. The predicate acts alleged in Burzynski took place over a six year span of time and involved a wide variety of predicate acts. Burzynski, 989 F.2d at 737-38. However, the Fifth Circuit found no pattern of racketeering activity because the alleged predicate acts were all "part and parcel of ... the defense of a lawsuit." Id. at 743. In determining whether a pattern of racketeering activity has been established, the emphasis is not necessarily placed upon the duration of the alleged predicate acts, but upon whether a plaintiff has established the "threat of continued criminal acts." Word of Faith, 90 F.3d at 123. Counterplaintiffs have not made that showing. e) Conclusion Counterplaintiffs have failed to establish the existence of any predicate acts that may support a RICO claim. In addition, even assuming the existence of the alleged predicate acts, counterplaintiffs cannot establish a "pattern of racketeering activity" as required by Fifth Circuit jurisprudence. Word of Faith, 90 F.3d at 123; Burzynski, 989 F.2d at 742-43. Because the existence of a "pattern of racketeering activity" is necessary in any RICO claim, Crowe, 43 F.3d at 204, the claims asserted in counts one and two[2] of counterplaintiffs' Second Amended Complaint *422 must be dismissed with prejudice as to all counterdefendants. B. The State Law Claims Counts three through eleven of counterplaintiffs' Second Amended Complaint assert nine claims under various Louisiana state law theories. On September 25, 1997, Magistrate Judge Payne issued a Report and Recommendation granting motions to dismiss counterplaintiffs' claims pursuant to Louisiana Revised Statute 22:1220 filed by Vale and St. Paul. R. 678. This Court adopted Magistrate Judge Payne's recommendations on October 21, 1997. Magistrate Judge Payne's analysis applies with equal force to the remaining counterdefendants. Thus count seven of counterplaintiffs' Second Amended Complaint is dismissed with prejudice as to all counterdefendants. With respect to the remaining state law claims, counterdefendants argue that each of these claims have prescribed and, alternatively, that each claim fails for lack of any duty owed. See R. 561, pp. 4-14. The Court will first address the prescription argument and then assess the merit of each state law claim alleged by counterplaintiffs. 1. Prescription Tort claims in Louisiana "are subject to a liberative prescription of one year." La. Civ.Code art. 3492. However, where a defendant's "conduct constitutes concealment, misrepresentations, fraud or other ill practices that prevents plaintiff from availing itself of its cause of action ... the doctrine of contra non valentem is triggered." Our Lady of the Lake Hospital, Inc. v. Carboline Co., 632 So.2d 339, 343 (La.App. 1st Cir. 1993), citing Bunge Corp. v. GATX Corp., 557 So.2d 1376, 1386 (La.1990). Where contra non valentem applies "[p]rescription ... will not begin to run until the plaintiff learns that it has been injured by the failure to disclose." Id. Counterdefendants argue that Lawrence Smith and Randall Keene, the attorneys who represented the Williamsons from 1993 through 1997, learned of the state law claims no later than September 19, 1995. R. 563, p. 20; R. 575, pp. 25-26. Because the claims were not filed until September 25, 1996, counterdefendants assert those claims have prescribed. R. 563, p. 20. In support of their prescription argument, counterdefendants point to an affidavit of Scott R. Hymel, a paralegal for Smith and Keene, sworn on November 6, 1995. R. 575, Exhibit 29. Hymel states that he was traveling in a car with George Cassellas "on or about September 12, 1995." During this car ride, Cassellas informed Hymel that "he found extraneous voltage at the wall switch" of Room 170 at the HBW and that Vale had instructed him "not to report this defect in any report." Id. Hymel returned "to [his] office and informed Lawrence Smith and Randall Keene of these facts." Id. A subsequent deposition of Lawrence Smith confirms that Hymel told him of Cassellas' representations either "the next day or the day after" his car ride with Cassellas. R 563, Exhibit D, p. 59. "Within a week of the report by Scott Hymel," Smith contacted Cassellas, who confirmed Hymel's report. Id. at 60-61. "Under Louisiana ... law, it is well settled that the knowledge of an attorney is imputable to his client." Orgeron v. Mine Safety Appliances Co., 603 F.Supp. 364, 369 (E.D.La.1985), citing Martin v. Schwing Lumber & Shingle Co., Inc., 228 La. 175, 81 So.2d 852 (1955). See also Gilbert v. Pearson, 478 So.2d 937, 940-41 (La.App. 3d Cir. 1985). Of the eight state law claims that survived counterdefendants' motions to dismiss, all but the invasion of privacy claim in count ten are based upon alleged misrepresentations made by Vale during Sonya Williamson's personal injury action. Thus knowledge of Cassellas' report by Smith and Keene marked the beginning of the one year prescriptive period with regard to counts three through six, eight, nine and eleven of counterplaintiffs' Second Amended Complaint. Gilbert, 478 So.2d at 940-41.[3] *423 Counterplaintiffs assert that Smith and Keene did not learn of the Cassellas report until sometime after September 26, 1995. In support of this contention, they submit another affidavit by Scott R. Hymel sworn on August 29, 1997, R. 607, Exhibit 23, and a billing record. R. 607, Exhibit 34. In his second affidavit, Hymel declares his car ride with Cassellas did not occur on September 12, 1995, but on September 26, 1995. R. 607, Exhibit 23, p. 2. Hymel further states "I am certain of this date because I have reviewed the billing records for George Cassellas, and they reflect that the date of the inspection was September 26, 1995." Id. The billing record seems to confirm that the car trip took place on September 26, 1995. R. 607, Exhibit 34. However, the billing record is completely unsubstantiated and counterplaintiffs have provided no documentation that it would be admissible at trial. Id.[4] The Court is extremely wary of the circumstances surrounding Hymel's second affidavit. It was prepared after counterdefendants had submitted their motions for summary judgment wherein they raised the prescription defense[5] and a full two years after the car trip with Cassellas, while the initial affidavit was prepared less than one month following the trip. Compare R. 607, Exhibit 23 with R. 575, Exhibit 29. In addition, Hymel's second declaration was apparently based not upon his own memory of the event, but upon a "review[][of] the billing records." R. 607, Exhibit 23, p. 2. Federal Rule of Civil Procedure 56(e) states "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to matters stated therein" (emphasis added). Hymel's declaration pertaining to the September 26, 1997 date is obviously not based upon "personal knowledge." Fed. R. Civ. Proc. 56(e). In addition, the Fifth Circuit has ruled "[a] party cannot create a factual dispute by filing an affidavit, after a motion for summary judgment has been made, which contradicts earlier testimony." Dotson v. U.S. Postal Service, 977 F.2d 976, 978 (5th Cir.1992). The Court will not consider Hymel's second affidavit as competent evidence in support of counterplaintiffs' opposition to summary judgment. Excluding Hymel's second affidavit, the sole piece of "evidence" suggesting that Smith and Keene did not become aware of the Cassellas report until after September 26, 1997 is the unsubstantiated billing record. R. 607, Exhibit 34. Fifth Circuit case law holds "a plaintiff must respond to an adequate motion for summary judgment with admissible evidence." Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 191 (5th Cir. 1991). Because unauthenticated documents are "not the kind of evidence described in Rules 56(c) and 56(e) ... it [is] ... not the district court's duty to examine whether and how [such documents] might be reduced to acceptable form by the time of trial." Id. at 192. The billing record as submitted by counterplaintiffs is not admissible evidence. For this record to be admitted pursuant to the "business record exception" to the hearsay rule the "custodian or other qualified witness" must testify to its authenticity and to the fact that it was kept "in the course of a regularly conducted business activity." Fed. R.Evid. 803(6). Counterplaintiffs have failed *424 to provide an affidavit qualifying the billing statement as admissible evidence. Without the benefit of Hymel's second, contradictory affidavit and the billing record, counterplaintiffs have no evidence suggesting Smith and Keene did not learn of the Cassellas report, and thus Vale's alleged misconduct, on or before at least September 19, 1995. In a final effort to avoid prescription, counterplaintiffs argue "[a]ll of the tort claims ... are continuous, and hence the continuing tort doctrine would preclude the commencement of any prescriptive period." R. 607, p. 63. Under the Louisiana continuing tort doctrine, "[w]hen the tortious conduct and resulting damages continue, prescription does not begin until the conduct causing the damage is abated." South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982). Here, counterplaintiffs' tort claims are based upon the conduct of Vale during the defense of Sonya Williamson's personal injury cause of action. This conduct ended in September, 1994, when the trial in that matter concluded. Based on all the evidence properly before the Court, the Cassellas report and Vale's alleged misconduct became apparent to Smith and Keene on or before September 19, 1995. The circumstances of Vale's alleged misconduct represent the basis of each of counterplaintiffs' remaining state law tort claims with the exception of the invasion of privacy claim alleged in count ten. Because these tort claims were not filed until September 24, 1996, they are barred by Louisiana's one year prescriptive period. Thus counts three through six, eight, nine and eleven of counterplaintiffs' Second Amended Complaint must be dismissed with prejudice as to all counterdefendants. After a review of the record before it, the Court also finds each of the state law claims are without merit and will briefly discuss the individual claims. 2. Invasion or Privacy The prescription discussion above does not apply to the "invasion of privacy" alleged by counterplaintiffs. See supra note 3. Claims for invasion of privacy may stem from four types of misconduct: "(1) the appropriation of an individual's name or likeness, for the use or benefit of the defendant; (2) an unreasonable intrusion by the defendant upon the plaintiff's physical solitude or seclusion; (3) publicity that unreasonably places the plaintiff in a false light before the public; and (4) unreasonable public disclosure of embarrassing private facts." Young v. St. Landry Parish School Board, 673 So.2d 1272, 1275 (La.App. 3d Cir.1996), citing Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1389 (La.1979). For a defendant's conduct to be actionable, it "must be unreasonable and must seriously interfere with the plaintiff's privacy interest." Young, 673 So.2d at 1275. The reasonableness of a defendant's conduct is determined on a case-by-case basis "by balancing the conflicting interests at stake; the plaintiff's interest in protecting his privacy from serious invasion, and the defendant's interest in pursuing his course of conduct." Jaubert, 375 So.2d at 1389. Counterplaintiffs allege an unreasonable intrusion upon their physical solitude or seclusion, which caused them "mental anguish, embarrassment, humiliation and severe emotional distress." R. 273, paras. 102-04; R. 607, pp. 26-28. This allegation is supported with photographs, R. 607, Exhibit 43, and investigative records, R. 607, Exhibit 44. The photographs depict various residences and certain individuals (presumably counterplaintiffs) walking in public. R 607, Exhibit 43. The investigative records reveal that numerous services were employed by various counterdefendants to conduct "activity checks" and "record checks" of Sonya and Robert Williamson. R. 607, Exhibit 43. While counterdefendants' investigation of the Williamsons can certainly be characterized as extensive, the Court finds no evidence indicating its "unreasonableness." Young, 673 So.2d at 1275. As indicated above, the defense of Sonya Williamson's personal injury action was predicated upon a demonstration that her alleged electrocution was fraudulent. Supra pp. 414-415. This defense required not only an investigation into the alleged accident at the HBW on July 21, 1989, but also an investigation into the *425 Williamsons' lengthy claim history. Id. Counterdefendants clearly had an important interest in developing their fraud theory and, given the facts of this particular case, any intrusion into counterplaintiffs' privacy was outweighed by the counterdefendants' interest in conducting their defense. 3. Intentional Infliction of Emotional Distress Count three of counterplaintiffs' Second Amended Complaint asserts a claim of intentional infliction of emotional distress. R. 273, paras. 69-72. To recover for intentional infliction of emotional distress, a plaintiff must establish "(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct." White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). The alleged conduct "must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Id. Here the "severe emotional distress" allegedly suffered by counterplaintiffs, see R. 273, paras. 69-72, was not the result of any "outrageous conduct." White, 585 So.2d at 1209. As stated above, supra pp. 417-419, Vale's conduct during the defense of Sonya Williamson's lawsuit was neither fraudulent nor "extreme and outrageous" and certainly did not "go beyond all possible bounds of decency." White, 585 So.2d at 1209. 4. Remainder of Counterplaintiffs' State Law Claims a) The Substantive Counts With the exception of a conspiracy claim alleged in count eleven, the remaining state law claims asserted by counterplaintiffs in their Second Amended Complaint are grounded in various negligence theories. See R. 273, paras. 73-86, 94-101, 105-107.[6] Louisiana Civil Code, Article 2315 states "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." "The standard negligence analysis ... employ[ed] in determining whether to impose liability under Civil Code Article 2315 is the duty-risk analysis." Mathieu v. Imperial Toy Corp., 646 So.2d 318, 321 (La.1995). This analysis consists of a four-prong inquiry: (1) was the conduct in question a "cause-in fact" of the harm?; (2) did the defendant owe a duty to the plaintiff?; (3) was the duty breached?; and (4) was the risk and harm caused within the scope of protection afforded by the duty breached? Id. at 321-22. Each of these four inquiries must be affirmatively answered in order for a plaintiff to recover. Id. at 322. In their Consolidated Opposition Motion, counterplaintiffs argue that counterdefendants owed them a variety of "duties" during the course of Sonya Williamson's personal injury litigation. See R. 607, pp. 65-79. These duties are summarized by counterplaintiffs as "a general duty ... not to falsely accuse another of engaging in a fraudulent act." Id. at 65. Assuming arguendo that counterdefendants did owe certain duties to counterplaintiffs, the evidence before the Court confirms that neither Vale nor any other counterdefendant breached any duty. The conduct of counterdefendants during the defense of Sonya Williamson's personal injury action was entirely reasonable. As stated previously, there existed substantial evidence indicating Sonya Williamson's July 21, 1989 electrocution was fraudulent. See supra pp. 414-415. The evidence now before the Court indicates that the defense Vale presented to the state court jury was neither fraudulent nor misleading. In addition, the conduct of Vale during discovery was not unreasonable. Counsel for Sonya Williamson had every opportunity to inspect Room 170 *426 of the HBW prior to the inspection by Cassellas. R. 575, Exhibit 14; R. 563, Exhibit A. At any rate, this Court has held the facts and opinions known by Cassellas are privileged. R. 430; R. 540. Thus, Vale owed counterplaintiffs no duty of any kind regarding revelation of the Cassellas information. Finally, the evidence before the Court reveals counterdefendants fully complied with counterplaintiffs' requests for disclosure of insurance information during Sonya Williamson's personal injury action. R. 575, Exhibits 7-9. There exists absolutely no evidence indicating that Vale or any other counterdefendant breached any duty owed to counterplaintiffs. b) The Conspiracy Count Louisiana law does recognize a civil action for conspiracy. "He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act." La. Civ.Code art. 2324. However, article 2324 does not create "an independent cause of action for civil conspiracy." Jefferson v. Lead Industries Assoc., Inc., 106 F.3d 1245, 1253 (5th Cir.1997). Rather, "[t]he actionable element under article 2324 is the intentional tort the conspirators agreed to commit and committed in whole or in part." Id. at 1254. Because the Court has determined that none of the counterplaintiffs' state law claims survive counterdefendants' motions for summary judgment, the conspiracy count cannot stand on its own. C. Conclusion The Court finds no evidence supporting any of the alleged predicate acts which underlie counterplaintiffs' RICO claims. As such, no pattern of racketeering activity can exist. Assuming arguendo the validity of the alleged predicate acts, the Court finds no evidence indicating they form a "pattern of racketeering activity." Thus counterplaintiffs' RICO claims in counts one and two of their Second Amended Complaint are dismissed with prejudice as to all counterdefendants. With regard to counterplaintiffs' state law claims, count seven is dismissed with prejudice for the reasons stated by Magistrate Judge Payne in his Report and Recommendation of September 25, 1997. The claims asserted in counts three through six, eight, nine and eleven of counterplaintiffs' Second Amended Complaint have prescribed. In addition, the claim of intentional infliction of emotional distress in count three fails because none of the counterdefendants' conduct during the defense of Sonya Williamson's personal injury action was extreme and outrageous. The alleged invasion of privacy asserted in count ten fails because the investigation of the Williamson family conducted by counterdefendants was not unreasonable. The claims in counts four, five, six, eight and nine must be dismissed because none of the counterdefendants breached any duty they may have owed to counterplaintiffs. Finally, the conspiracy alleged in count eleven fails because each of counterplaintiffs' substantive state law claims are dismissed. Thus, each of the state law claims appearing in counts three through six, eight, nine and eleven of counterplaintiffs' Second Amended Complaint are dismissed with prejudice as to each counterdefendant. NOTES [1] The Court has already determined the checks mailed by CIGNA to Sonya Williamson were not "integral to the alleged scheme to defraud" and thus cannot be acts of mail fraud. See supra pp. 417-418. However, even if these mailings are included as predicate acts, counterplaintiffs have still failed to establish a pattern of racketeering activity. Assuming the CIGNA mailings were integral to a scheme to defraud, each CIGNA mailing relates to the subject matter of Sonya Williamson's personal injury lawsuit. These mailings indicate no threat of "continued criminal activity." H.J. Inc., 492 U.S. at 239, 109 S.Ct. at 2900-01. [2] In their Second Amended Complaint, counterplaintiffs refer to their various federal and state claims as "counts." Although it is not the usual practice of this Court to refer to allegations in a complaint in civil cases as "counts," the Court will do so in this instance as the parties have chosen this term. [3] As discussed above, the alleged violation of the Insurance Unfair Trade Practices Act, La.Rev. Stat. 22:1220, in count seven was dismissed as to all counterdefendants for the reasons given by Magistrate Judge Payne in his Report and Recommendation of September 25, 1997, which was adopted by this Court on October 21, 1997. However, because this alleged violation is based upon "Cassellas information," the prescription discussion that follows would apply to count seven. Count ten of counterplaintiffs' Second Amended Complaint alleges an "invasion of privacy." It is not based upon any facts known or opinions held by Cassellas. Rather, the invasion of privacy claim rests upon counterplaintiffs' discovery of surveillance photos and investigative reports. Counterdefendants have not provided the Court with any evidence as to when these items were discovered by counterdefendant. Thus the prescription discussion that follows does not apply to the invasion of privacy claim asserted in count ten of counterplaintiffs' Second Amended Complaint. [4] Counterplaintiffs have failed to include an affidavit from the custodian of the billing record or any other document indicating its authenticity or accuracy. [5] BWI and St. Paul filed their motions for summary judgment on August 15, 1997. R. 561; R. 563. The Hayneses, HLH, HBW, American and Maryland filed their motion of August 21, 1997. R. 572. Vale filed his motion on August 22, 1997. R. 575. [6] Specifically, counterplaintiffs assert claims based upon: "negligent infliction of emotional distress" (count four), "abuse of process" (count five), "negligent supervision and retention of an agent" (count six), "spoliation" (count eight), and "impairment of tort claim and defense" (count nine).

493 F.Supp. 1105 (1979) B & J MANUFACTURING COMPANY, Plaintiff, v. HENNESSY INDUSTRIES, INC., Defendant. No. 73 C 2174. United States District Court, N. D. Illinois, E. D. December 19, 1979. *1106 *1107 *1108 James P. Hume, Hume, Clement, Brinks, Willian & Olds, Ltd., Jerry Hosier, Hosier, Niro & Daleiden, Ltd., Chicago, Ill., for plaintiff. James W. Kissel, Sidley & Austin, James C. Wood, William A. Van Santen, Jr., Wegner, Stellman, McCord, Wiles & Wood, Chicago, Ill., for defendant. MEMORANDUM OPINION FLAUM, District Judge: This cause having been tried by the court without a jury, the court, having heard the testimony and examined the exhibits properly placed in evidence by the parties, having heard the arguments of counsel, and being otherwise fully advised in the premises, hereby enters the following findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52(a). This court has jurisdiction over this matter under 28 U.S.C. § 1338(a). Venue is admittedly proper in this district. Plaintiff, B & J Manufacturing Co. (B & J), is an Illinois corporation having a principal office and place of business at 700 West 193rd Street, Glenwood, Illinois. Hennessy Industries, Inc. (Hennessy) is a Delaware corporation having a principal office and place of business at 520 Lively Boulevard, Elk Grove Village, Illinois. B & J is the holder of three patents — viz., United States Patent 3,552,469 (the '469 patent), entitled "Tire Bead Seater", United States Patent 3,675,705 (the '705 patent), entitled "Tire Bead Seating and Inflation Apparatus", and United States Patent 3,805,871 (the '871 patent), entitled "Tire Mounting, Bead Seating and Inflation Apparatus and Method of Use". It alleges that these patents have been infringed by Hennessy. Hennessy denies the charge of infringement and makes an alternative affirmative defense of license. In addition, it claims that those claims of the patents that it is said to have infringed are invalid. For the reasons set forth below, the court holds that all of the contested claims of the three patents are valid, that the accused devices infringe the claims of those patents that B & J alleges they infringe, and that the sale by Hennessy of the accused devices as kits and their sale in any form after its receipt of the latter from counsel for B & J dated September 16, 1974, constituted unlicensed infringement. The court rules, further, that an accounting must be held to ascertain the compensation owing to B & J. Treble damages and attorney's fees will not be awarded to B & J. It is, however, entitled to an award of costs. BACKGROUND The tubeless tire made its first appearance on American automobiles in the early *1109 1950's. By the middle of that decade, the tubeless tire had become standard equipment on passenger cars manufactured in this country. Indeed, it also replaced tires equipped with inner tubes for use on trucks and other off-the-road vehicles. The introduction of tubeless tires led to the appearance of a new problem in tire inflation. When its upper and lower beads[1] are in sealing contact with the wheel rim, a tubeless tire can be inflated through the valve stem located in the wheel.[2] However, it often happens that, owing to the vicissitudes of, inter alia, the shipping, storing, or packaging of a tubeless tire, when it has been mounted on a wheel, at least one of its beads is found not to be in sufficient sealing contact with the wheel rim. In such a case, the inflation of the tire cannot, without the use of some mechanical aid, be accomplished entirely through the valve stem, as the air injected into the cavity would escape through the opening, or window, between the unseated bead and the wheel rim proximate to it. Thus, a new method had to be devised to facilitate the inflation of these problem tires. As a result of an industry-wide effort, numerous devices were fashioned to accomplish this task. These apparatus all required the creation of a mechanical seal between the tire bead and the wheel rim. Some of them involved the use of a constricting band, by means of which the circumference of the tire sidewall was constricted, thereby causing the interior rim of the sidewall, the tire bead, to move into sealing engagement with the wheel rim. Others operated by enclosing the window within a larger sealed space, and then seating the tire beads by injecting air into this closed container. Neither of these methods of tubeless tire inflation were without its drawbacks. The use of constrictor bands was always hazardous for the would-be tire inflator. The appearance of radial ply and steel-belted radial ply tires on the market added to the problem, as they rendered constrictor bands ineffective and/or harmful to the tires themselves. Difficulties also attended the use of many of the devices that achieved a mechanical seal by the second means mentioned above. For instance, to employ a device on the order of the Omega Band bead seater marketed by Bruce Caulkins, Inc. (BCI), patented as United States Patent 3,280,880, entitled "Method of and Apparatus for Inflating Tubeless Tires", filed January 29, 1965 and issued on October 25, 1966, it was necessary to have a different mechanical sealing part for each tire, each rim diameter, and each rim size. The apparatus disclosed by the Muller patent, United States Patent 3,461,938, entitled "Tire Mounting and Inflation System", filed March 9, 1967 and issued on August 16, 1969, required the application of 10,000 lbs. of pressure against the wheel rim in order to seat the beads of and inflate "problem" tubeless tires. Bruce D. Caulkins (Caulkins) holds a Bachelor's degree in science and a Master's degree in physics, with minors in chemistry and mathematics. He worked for Uniroyal between the end of his formal education in 1929 and 1945, in connection with its business of manufacturing and selling tires. In 1945, he joined the Atlas Supply Company (Atlas), for whom Uniroyal had manufactured tires during at least the latter portion of Caulkins' tenure with Uniroyal. At Atlas, Caulkins was responsible for selecting the tires and equipment relating thereto that would be made available to Standard Oil service stations under the Atlas brand name. Caulkins returned to Uniroyal in 1960 as the Director of Quality Control of their automobile tire manufacturing operations. He continued to work for Uniroyal until August 1, 1963, at which time he commenced devoting himself to the affairs of BCI, a basically one-person enterprise that he had incorporated in March, 1963. From the beginning, BCI marketed tire-related products developed by Caulkins. In 1965, BCI started selling the aforementioned *1110 Omega Band, which was the invention of Caulkins and others. This product was a commercial success, and, in 1968, BCI recruited Caulkins' friend Lee M. Corless (Corless) to provide some office help. Corless received a B.S. in mechanical engineering from Michigan State University in 1930. With the exception of the war years, during most of which he headed an Army school for motor mechanics, Corless spent the next thirty-three years in the employ of several American automobile manufacturing companies. Principally, his duties with them involved experimental automotive engineering. Not long after becoming associated with BCI, Corless began to go out into the field to talk to BCI's customers and discuss with them whatever problems that they might have had with BCI's products. At that time, BCI was primarily selling Omega Bands, and so Corless became educated in the above-mentioned problems involved in the inflation of tubeless tires. He came to the conclusion that there had to be a "better answer" to those problems than the mechanical sealing devices then in use, and he set out to find it. Corless' experiments resulted in the issuance to him of the three patents in suit. He assigned his rights under the patents over to BCI, which, on June 1, 1971, granted Hennessy a nonexclusive license under the then-issued '469 patent, the then-pending application which shortly thereafter issued as the '705 patent, and the about-to-be-filed application which matured into the '871 patent. Subsequently, in July, 1971, B & J acquired BCI's entire right, title and interest in and to the patents in suit. The Coats Company, Inc. (Coats), a subsidiary of Hennessy, is its supplier and manufacturer of tire changing machines. Coats tire changing machines are sold by Hennessy with or without tubeless tire inflation apparatus, according to its customers' specifications. Hennessy also markets the Coats-made tire inflation apparatus parts sold separately for field installation on Coats brand tire changers. These OEM machines and kits are the devices accused of infringement in this suit.[3] PATENT VALIDITY The '469 Patent The application that lead to the issuance of the '469 patent was filed on February 16, 1969. The application was amended in January, 1970, before the Patent Office had taken any action thereon, at the request of Corless. The patent was issued without further amendment on January 5, 1971, all of its claims being allowed. Finally, in June of 1971, BCI, then the holder of the patent, filed a disclaimer with the Patent Office in which it disclaimed several claims of the issued patent. Hennessy challenges the validity of this patent on two grounds. First, it alleges that the '469 patent is invalid under 35 U.S.C. § 102 for anticipation. Second, it maintains that the claims of the patent are invalid under 35 U.S.C. § 103, because they are obvious in light of the prior art. Before evaluating the merits of these arguments, the court deems it proper to review certain general principles of patent law. 35 U.S.C. § 282 states that [a] patent shall be presumed valid. Each claim of a patent . . . shall be presumed valid independently of the validity of other claims .... The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity. This statutory presumption is not conclusive; rather, it shifts the burden of proof to the party attacking the validity of the patent. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963 (7th Cir. 1979). In general, clear and convincing evidence of invalidity is necessary to overcome this presumption. Laser Alignment, Inc. v. Woodfruff & Sons, Inc., 491 F.2d 866, 871 (7th *1111 Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974). The presumption is strengthened when the record before the Patent Office Examiner, the file wrapper, discloses that the prior art references, or equivalent references, relied on by the party claiming invalidity were considered by the Examiner during the prosecution of the application for a patent. Id. On the other hand, the presumption does not exist against evidence of prior, non-equivalent, art not before the Patent Office, The Allen Group v. Nu-Star, Inc., 575 F.2d 146 (7th Cir. 1974) (per curiam), and invalidity need only be proven in such cases by a preponderance of the evidence. The burden of proof imposed upon the party attacking a patent's validity is similarly reduced when allowed claims are subsequently disclaimed. Hoover Co. v. Mitchell Manufacturing Co., 269 F.2d 795 (7th Cir. 1959); 4 Deller's Walker on Patents § 286, at 237 (1965).[4] With these principles in mind, the court will turn to the arguments raised by Hennessy against the validity of the '469 patent. 35 U.S.C. § 102 provides, in pertinent part, as follows: A person shall be entitled to a patent unless — (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States .... In Namirowski v. Nabisco, Inc., 421 F.Supp. 349 (N.D.Ill.1976), aff'd mem., 567 F.2d 392 (7th Cir. 1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1612, 56 L.Ed.2d 62 (1978), this court concluded that a purported invention is anticipated, hence unpatentable under 35 U.S.C. § 102, "only where, except for insubstantial differences, [a previous patent, printed publication or domestic product] contains all of the same elements in the same fashion to perform an identical function." 421 F.Supp. at 353 (quoting Popeil Bros., Inc. v. Schick Electric, Inc., 494 F.2d 162, 164 (7th Cir. 1974)) (emphasis supplied in Namirowski). Thus, as the first step in deciding whether the '469 patent is void for want of novelty, the court must identify the challenged claims of said patent, and identify the elements thereof. The '469 patent consists of 22 claims. Three of these are independent claims. The others are dependent claims. Claim 1 discloses an [a]pparatus for inflating tubeless tires on a vehicle wheel comprising an annular tube of larger diameter than the wheel to be received over the wheel adjacent to the rim thereof, orifice means around the inner periphery of the tube for injecting a substantially continuous ring of air under pressure through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on a wheel, and inlet means on the tube for supplying air under pressure to the interior of the tube. Claims 2-9 and 11-15 are dependent on claim 1.[5] Claim 2 describes the angle at which the orifice means are to be aimed. Claims 3 and 4 describe different forms that orifice means might take. Claim 5 provides that the annular tube may be of a variable diameter. Claim 6 describes one such tube, a discontinuous ring whose ends are joined by a turnbuckle. Claim 7 discloses the apparatus defined in Claim 6 equipped with orifice means designed specifically so as to direct their streams of air into "the peripheral space occupied by the turnbuckle". Claims 8 and 9 describe another *1112 type of variable-diameter tube, a discontinuous tube provided with telescoping ends. Finally, Claims 11-15 provide for varying cross-sectional shapes in which the annular tube could be fashioned. Independent claim 16 discloses [t]he method of inflating a tubeless tire on a vehicle wheel comprising the steps of mounting a noninflated tubeless tire on a vehicle wheel, injecting air under pressure as a substantially continuous ring into the tire peripherally around the tire through the space between the wheel rim and the adjacent tire bead to partially inflate the tire and cause the tire bead to almost make sealing contact with the wheel rim, and then completely inflating the tire by injecting air under pressure through the conventional tire valve. Claims 17-19 are dependent upon claim 16. Claim 17 provides that the injection of air under pressure through the window shall cease substantially simultaneously with the commencement of the injection of air under pressure through the valve stem. Claim 18 modifies claim 17 by disclosing that the accomplishment of the simultaneous switch from injection via the annular ring to injection via the valve stem shall be achieved by use of a valve device. Claim 19 elaborates upon the method described in claim 16 by providing for a reservoir of air under pressure as a source for the initial injection of air into the tire via the annular ring. Claim 21, the third and last independent claim in the '469 patent, discloses an [a]pparatus for inflating tubeless tires on a vehicle wheel comprising an annular tube of larger overall diameter than the wheel to be received on the wheel, orifice means around the periphery of the tube and spaced radially outwardly from the periphery of the wheel for injecting air under pressure as a substantially continuous ring through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on the wheel, and inlet means on the tube for supplying air under pressure to the interior of the tube. Claims 22, 23, and 26 are dependent upon claim 21. Claim 22 describes the inner diameter of the annular tube as larger than the diameter of the wheel, such that the tube may be received over the wheel and adjacent to its rim. It further provides that when the apparatus appears in this form, the orifice means should be located on the inner periphery of the tube. Claim 23 defines a version of claim 21 in which the outer, but not the inner, diameter of the annular tube is greater than the diameter of the wheel. Claim 26 provides that the apparatus described in claim 26, which is designed such that the annular tube rests on the wheel rim during tire inflation, should be equipped with an auxiliary device to insure that the tube is actually in sealing engagement with the wheel rim. Hennessy argues that claims 1 and 16, and therefore the claims dependent upon them, are unpatentable because they are anticipated by United States Patent 2,874,760, entitled "Bead Seating Device For Tubeless Tires", filed June 9, 1954, and issued to Walter F. Bishop on February 24, 1959 (Bishop).[6] The Bishop patent discloses a bead seating device that operates through the use of a mechanical seal. Specifically, Bishop teaches that a tubeless tire whose beads are not in sealing contact with the wheel rim can be inflated by means of a device composed of a rigid plate so fashioned as to be able to be positioned in airtight sealing contact with the wheel rim; an extension thereof jutting outwards from the top of that plate over the sidewall of the tire that it is sought to seat; and a flexible rubber membrane that is connected on one end to the aforementioned extension of the rigid plate, and that descends from thence to the tire sidewall, the membrane being designed so as to be able to achieve airtight sealing contact with said sidewall. Bishop's specifications describe the inflation of such a tire with this device as involving the injection of air under pressure into the previously (mechanically) sealed space bounded by the *1113 patented device and the cavity formed by the wheel and the tire along the entire circumference of the window, thereby seating the beads and inflating the tire.[7] The file wrapper of the '469 patent discloses that the Patent Office Examiner considered Bishop during the prosecution of the application for the '469 patent. Thus, Hennessy must overcome the presumption of validity if it is to prevail on the issue of anticipation. The court holds that Hennessy has failed to prove that Bishop is a prior patent which contained all the elements enumerated in [claims 1 and 16 of the '469 patent], which performed the same function in the same way as the [device] defined in those claims, and whose [purpose was] to perform the same function as was performed by the device described in those claims. Namirowski v. Nabisco, Inc., 421 F.Supp. at 354 (citations omitted) (emphasis added). The two devices plainly were intended to perform the function of tire bead seating. However, the other portions of the standard enunciated in Namirowski are not met in this case. Bishop lacks the annular tube called for in claim 1. More importantly, there exists a profound structural difference between Bishop and the '469 patent: Bishop requires the existence of a sealing mechanism as part of its bead seating apparatus, while the '469 patent requires no mechanical sealing mechanism at all.[8] This structural difference is reflected in a methodological distinction — before Bishop can be used to seat the bead of and inflate a "problem" tubeless tire, its disclosure requires the mechanical creation of a relatively airtight chamber enclosing the window, tire cavity, and wheel, whereas no such initial seal need be created before the bead seating and inflation process commences according to the teachings of the '469 patent. This, taken together with the evidence before the court as to how the apparatus disclosed by the '469 patent works, suggests to the court that Bishop and the '469 patent operate on the basis of fundamentally different principles. Hennessy has not presented the court with evidence which would cause it to reach any other conclusion with regard to the question of whether the devices perform the same function "in the same way".[9] Accordingly, Hennessy has failed to prove that the challenged claims of the '469 patent are unpatentable under 35 U.S.C. § 102. Hennessy also argues that the '469 patent is invalid under 35 U.S.C. § 103. The defense of obviousness raises the question of inventiveness, as opposed to the question of novelty, upon which the defense of anticipation turns. As the court noted in Illinois Tool Works v. Sweethart Plastics, Inc., 436 F.2d 1180, 1183 (7th Cir.), cert. denied, 403 U.S. 942, 91 S.Ct. 2270, 29 L.Ed.2d 722 (1971), [t]he obviousness test is somewhat broader in its restrictions on the issuance of valid patents, and prior art which does not render an invention anticipated may nonetheless make it obvious. (footnote omitted). 35 U.S.C. § 103 provides that [a] patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at *1114 the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. In Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), the Supreme Court outlined the proper analysis to be followed when obviousness is at issue. While the ultimate question of patent validity is one of law [citation omitted], the § 103 condition, which is one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. 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. 383 U.S. at 17, 86 S.Ct. at 694. "[T]he Graham analysis [is] the exclusive means by which to measure nonobviousness under section 103." Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963, 972 (7th Cir. 1979). Hennessy refers the court to the following prior art as relevant to its claim of obviousness: United States Patent 2,874,759, entitled "Bead Seating and Inflating Device for Tubeless Tires", filed January 12, 1953, and issued to E. G. Ranallo on February 24, 1959 (Ranallo); United States Patent 2,874,761, entitled "Bead Seating and Inflating Device for Tubeless Tires", filed August 26, 1954, and issued to A. J. Varvaro on February 24, 1959 (Varvaro); United States Patent 2,936,827, entitled "Apparatus for Mounting and Inflating Tubeless Tires", filed June 20, 1955, and issued to M. B. Riggs on May 17, 1960 (Riggs); and United States Patent 2,500,015, entitled "Automatic Tubeless Tire Bead Seating and Inflation Machine", filed March 10, 1955, and issued to H. S. Harrison on August 18, 1959 (Harrison).[10] The file wrapper of the '469 patent reveals that Bishop and Harrison were considered by the Examiner during the prosecution of the application for the patent.[11] However, the other prior art mentioned above, the disclosures of which the court has examined, is no more pertinent than the two references that were considered by the Examiner: all of the above prior art references, including Bishop and Harrison, rely for their efficacy upon the creation of an initial mechanical seal in order to seat the beads of and achieve the inflation of a tubeless tire whose sidewalls do not engage the wheel in sealing contact, and they all describe and claim only apparatus incorporating and methods employing mechanical sealing devices. Therefore, it is only necessary for the court to refer to the disclosures of Bishop, which Hennessy considers to to be by far the most pertinent prior art, in order to describe "the scope and content of the prior art". As summarized above, the teaching of Bishop is that one could seat the beads of and inflate a "problem" tubeless tire by creating a mechanical seal around the tire cavity, wheel, and window, and then injecting air under pressure into this sealed chamber. *1115 Hennessy claims that the progression from Bishop's device to the apparatus disclosed in the '469 patent would have been obvious to a person skilled in the art of tire inflation because Bishop provides for the creation of "a temporary barrier, but not a seal". Before turning to the obviousness question, the court deems it appropriate to note its disagreement with this characterization of the disclosure of Bishop. The claims of the Bishop patent require the mechanical creation of an initial seal prior to inflation of the tire by the injection of air under pressure into the tire cavity. Further, while it is true that the Bishop specifications state that one portion of the sealing mechanism described in the patent may consist of a semipermeable rubber membrane, nothing in the statement explicating the purpose and function of this avatar of Bishop's sealing apparatus casts any doubt upon the fact that Bishop teaches that the creation of an initial mechanical seal is essential to the operability of the Bishop apparatus. Indeed, that statement, upon which Hennessy relies so heavily, underlines this fact.[12] Prior to resolving the obviousness issue, it is incumbent upon the court to ascertain what the level of ordinary skill in the art of tubeless tire inflation was at the time the device disclosed in the '469 patent was invented. Hennessy has submitted no evidence as to the level or kind of education or the type of work experience typical among practitioners of this art. Rather, it has elected to describe the level of ordinary skill in the art only in terms of a hypothetical person "working in his shop with the prior art references — which he is presumed to know — hanging on the walls around him". Application of Winslow, 365 F.2d 1017, 1020, 53 CCPA 1574 (1966). It is the court's conclusion that Hennessy has failed to prove that the '469 patent is invalid for obviousness. It introduced no expert testimony to that effect at trial. Indeed, one of Hennessy's witnesses, Charles Rummler, whose testimony the court finds credible in this limited regard, acknowledges that the Corless device disclosed in the '469 patent operates in a manner "directly contrary to the teachings of the prior art", including Bishop. Upon its own review of the record before it, the court is of the opinion that Corless' invention was not an obvious outgrowth of the teachings of the prior art, but the result of his totally unprecedented approach to the problem of the inflation of "problem" tubeless tires.[13] *1116 As Hennessy has not prevailed on either of its arguments against the validity of the '469 patent, the court rules that that patent is valid. The '705 Patent The '705 patent matured from an application filed on November 16, 1970, at which time the application for what subsequently became the '469 patent was still pending in the Patent Office. After the issuance of the '469 patent, on July 29, 1971, a terminal disclaimer was filed with regard to the former application, disclaiming "the terminal part of any patent granted on [that application] which would extend beyond the expiration date of [the '469 patent]". The application was amended before the Patent Office had taken any action thereon, at the request of the applicant, which request was made in late July, 1971. The Patent Office Examiner, who was the same Examiner before whom the '469 and '871 patents were prosecuted, disallowed two claims of the application and allowed the other claims on November 3, 1971. After receiving a communication sent by Corless' attorney and filed with the Patent Office on March 17, 1972, the Examiner reconsidered his earlier action and decided to allow all of the claims of the amended application. The '705 patent was issued on July 11, 1972. Hennessy challenges the validity of the allegedly infringed claims of the '705 patent on three grounds. First, it alleges that the claims are invalid under 35 U.S.C. § 101 on grounds of double patenting. Second, it maintains that these claims are invalid under 35 U.S.C. § 102 for anticipation. Third, it asserts that these claims are invalid under 35 U.S.C. § 103 for obviousness. The '705 patent contains thirteen claims, including three independent and ten dependent claims. Claim 1, upon which claims 2-11 are dependent, discloses an [a]pparatus for inflating tubeless tires on a vehicle wheel having oppositely disposed rim portions comprising tire bead seating apparatus including an annular tube of larger diameter than the wheel to surround a rim of the wheel, structure extending radially inwardly of said tube for abutment against said rim to position the apparatus with respect to the wheel, orifice means around the inner periphery of the tube for injecting a substantially continuous ring of air under pressure through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on the wheel, and inlet means on the tube for supplying air under pressure to the interior of the tube; said tire bead seating apparatus having no mechanical sealing element capable of sealing a gap between the wheel and the tire. Claims 2-4 describe the above-mentioned "positioning" means, which also constitute handles. Claims 5-10 elaborate upon various aspects of what claim 1 refers to as the "inlet means". Claim 11 reveals a form of the annular tube in which the tube is made up of a plurality of detached arcurate segments, the ends of each of which are sealed, and each of which is equipped with its own inlet through which to receive air under pressure. Claim 12, the second of the '705 patent's independent claims, discloses [t]he method of inflating a non-inflated tubeless tire on a vehicle wheel comprising the steps of applying an annular orifice structure to one side of a tire and wheel assembly, positioning the orifice structure with respect to the wheel by abutment of structure extending radially inwardly from said orifice structure against the wheel, injecting air under pressure from said orifice structure into the tire peripherally around the wheel through the space between the wheel rim and the tire bead in sufficient amounts, without using a mechanical seal, so that more air is injected into the tire than may escape with the result that the tire will be expanded to cause the tire beads to sufficiently close on the wheel rims to permit complete inflation through the conventional tire valve, and then completely inflating the tire by injecting air under pressure through the conventional tire valve. Claim 13, the third independent claim of the '705 patent, discloses an *1117 [a]pparatus for inflating tubeless tires on a vehicle wheel having oppositely disposed rim portions comprising tire bead seating apparatus including an annular orifice structure having orifice means provided around a periphery of larger diameter than the diameter of a wheel to surround the rim of a wheel for injecting air under pressure around the periphery of the wheel through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on the wheel in sufficient amounts, without using a mechanical seal, so that more air will be injected into the tire than may escape with the result that the tire will be expanded to cause the beads to sufficiently close on the wheel rims to permit complete inflation through the conventional tire valve, structure extending radially inwardly of said annular orifice structure for abutment against said wheel to position the apparatus with respect to the wheel, and inlet means on said orifice structure for supplying air under pressure to the orifice means. Claims 1, 12 and 13 are the allegedly infringed claims, and it is the validity of these claims that is challenged by Hennessy. The doctrine of double patenting grows out of the recognition by the Supreme Court in Miller v. Eagle Manufacturing Co., 151 U.S. 186, 14 S.Ct. 310, 38 L.Ed. 121 (1894), of the principle that "no patent can issue for an invention actually covered by a former patent". 151 U.S. at 198, 14 S.Ct., at 315. It is a set of judicially created rules, Ropat Corp. v. McGraw-Edison Co., 535 F.2d 378, 380 (7th Cir. 1976); Application of Braithwaite, 379 F.2d 594, 602 (Cust. & Pat.App.1967) (Smith, J., concurring), which act to deny the patentability of co-pending applications regarding an invention upon which a patent has already been granted to the same inventor. See generally, 1 Deller's Walker on Patents § 62 (2nd ed. 1964). Double patenting analysis therefore is employed where an application that satisfies the test of patentability under 35 U.S.C. §§ 102, 103 has been filed by a person who already holds a relevant patent. As the Court of Customs and Patent Appeals observed in Application of White, 405 F.2d 904, 906, 56 CCPA 870 (1969), such a subsequent invention will fall into one of three categories: unobvious, obvious, and same invention. The subsequent application may represent an attempt to twice claim the same invention. Or it may be an attempt to patent an obvious improvement or modification of a claim patented in the first-to-issue patent. Finally, it may be that the new invention constitutes an unobvious variant of the claims of the previously-issued patent. The impact of the double patenting doctrine on an invention varies according to which of the three categories the invention falls into. See generally Application of Thorington, 418 F.2d 528, 57 CCPA 759 (1969); Application of Eckel, 393 F.2d 848, 55 CCPA 1068 (1968). If the invention is "unobvious", in the sense discussed in the preceding paragraph, there can, of course, be no double patenting. Application of White, 405 F.2d at 906. If the invention is the "same invention", the "same invention" aspect of double patenting analysis will apply. This branch of the double patenting doctrine has been anchored in 35 U.S.C. § 101, which provides that [w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor . . .. (emphasis added). It is intended to bar an inventor from obtaining multiple patents on a single invention. The filing of a terminal disclaimer does not avoid the effect of this type of double patenting. If the invention is "obvious", within the meaning of the previous paragraph, the "obviousness" type of double patenting analysis will apply. This branch of the doctrine has no statutory basis. Rather, it is a judicially-created doctrine grounded in public policy . . . and primarily intended to prevent prolongation of monopoly. *1118 Application of Thorington, 418 F.2d at 534. Accordingly, this type of double patenting objection can be defeated by a terminal disclaimer. Id. Because that portion of the life of the '705 patent extending beyond the expiration date of the '469 patent has been disclaimed, Hennessy can only challenge the validity of the '705 patent under the "same invention" aspect of double patenting doctrine. Thus, the question before the court is whether claims 1, 12, and 13 of the '705 patent constitute the "same invention" that was claimed in the '469 patent. The parties agree that the law governing the definition of "same invention" is to be found in In re Eckel, 393 F.2d 848, 55 CCPA 1068 (1968), and its progeny. At least under the circumstances of this case, the court concurs. As refined in Application of Vogel, 422 F.2d 438, 57 CCPA 920 (1970), and Application of Avery, 518 F.2d 1228 (Cust. & Pat. App.1975), the test is one of cross-readability. This test, in the words of the Vogel court, asks whether one of the claims could be literally infringed without literally infringing the other. If it could be, the claims do not define identically the same invention. In assessing Hennessy's charge that claims 1, 12, and 13 of the '705 patent are invalid for double patenting, the court bears in mind the fact that the presumption of validity is applicable in this context. TSC Industries, Inc. v. International Harvester Co., 406 F.2d 53 (7th Cir. 1968). Moreover, the court notes that the presumption is strengthened where, as here, the Examiner who approved the issuance of the later patent not only referenced to the earlier-issued patent, but was the same Examiner who allowed the latter patent. The court holds that Hennessy has not succeeded in proving that the claims are invalid for double patenting. The claims of the '469 patent could be infringed without literally infringing claims 1 and 12 of the '705 patent by manufacturing and using an annular bead seater which is not equipped with the positioning/holding apparatus disclosed in the latter patent. Claim 13 of the '705 patent is not crossreadable on the claims of the '469 patent both for this reason and because claim 13 does not require that the bead seating apparatus consist of an annular "ring". The court also rejects Hennessy's anticipation and obviousness attacks upon the '705 patent. 35 U.S.C. § 102(b) does not represent a statutory bar against the patentability of the claims of the '705 patent. The device disclosed in the '469 patent was not first publicly demonstrated or sold until mid-April, 1970, less than one year prior to the date of the filing of the application that matured into the '705 patent. Hennessy does not suggest, and the court does not find, that any of the claims subsequently added to this application by amendment are not entitled to enjoy the effective filing date of November 16, 1970. Thus, none of the circumstances mentioned in section 102(b) is present in this case. Illinois Tool Works, Inc. v. Solo Cup Co., 461 F.2d 265 (7th Cir.), cert. denied, 407 U.S. 916, 92 S.Ct. 2441, 32 L.Ed.2d 691 (1972), teaches that the '469 patent does not constitute prior art with regard to the '705 patent within the meaning of 35 U.S.C. § 102(a). Nor is it considered to be prior art with regard to the '705 patent for the purposes of 35 U.S.C. § 103. See, e. g., Nashua Corp. v. RCA Corp., 431 F.2d 220 (1st Cir. 1970); Weatherhead Co. v. Drillmaster Supply Co., 227 F.2d 98, 101 (7th Cir. 1955); Application of Braithwaite, 379 F.2d 594, 600 n. 4 (Cust. & Pat.App.1967); Application of Braithwaite, 379, F.2d 594, 603 n. 5 (Cust. Pat. App.1967) (Smith, J., concurring); Application of Robeson, 331 F.2d 610, 612 n. 2, 51 CCPA 1271 (1968).[14] Hence, the only prior art reference with regard to the '705 patent that was not available as prior art for the purposes of sections 102(a) and 103 in determining the validity of the '469 patent is United States Patent 3,669,175, entitled *1119 "Bead Expander", filed September 29, 1969, and issued to B. L. Sorenson, et al., on June 13, 1972. This patent, like the prior art relative to the '469 patent, teaches the necessity of a mechanical seal to the bead seating of "problem" tubeless tires. Accordingly, Hennessy's anticipation and obviousness arguments fail for the same reasons that similar contentions concerning the validity of the '469 patent failed. Therefore, the court finds that Hennessy has not successfully met its burden of proving claims 1, 12, and 13 of the '705 patent invalid. The '871 Patent The '871 patent, which is a continuation-in-part of the '705 patent, matured from an application filed in the Patent Office on July 26, 1971.[15] The application was amended at the request of the applicant, which request was made by a letter filed on September 5, 1972, before the Patent Office had taken any action thereon. On September 15, 1972 and September 25, 1972 the Patent Office Examiner, who was the same Examiner who had already approved the '469 patent and the '705 patent, rejected several independent claims of the application as obvious in light of the '469 patent. On November 9, 1972, Corless' assignee, B & J, filed an amendment adding new specifications and proposed claims 14-17 to his application and requesting a declaration of interference with respect to the added claims. On the same date, B & J also filed a terminal disclaimer disclaiming the "terminal part of any patent granted on the above-identified application which would extend beyond the expiration date of [the '469 patent]." After proposed claims 14-17 prevailed in the interference proceeding with certain claims of United States entitled "Improved Tire Bead Seater", Patent 3,683,991, filed February 11, 1971 and issued to F. H. Ruhland on August 15, 1972, the Examiner allowed all of the claims except proposed claim 15 on January 9, 1973. He rejected that claim and demanded the deletion of a portion of the specifications that had been added to the application in the amendment dated November 9, 1972. This language was rejected by him on the ground that it was impermissibly directed to "new matter" under 35 U.S.C. § 132. By means of a letter filed February 1, 1973, the offending claim and specification language were deleted from the application, and the '871 patent was issued on April 23, 1974. As issued, the '871 patent contains 16 claims. These include four independent and nine dependent apparatus claims and two independent and one dependent method claims. Claims 1-3 were originally filed in the Patent Office as claims 12-14 in Corless' application that matured into the '705 patent. They were deleted from that application by the claimant's amendment filed July 29, 1971. The remarks accompanying that letter requesting the Patent Office to amend the application explained that "[c]laims 12-14 have been cancelled because the structure recited therein is being disclosed and claimed in a Continuation in Part Application". Claim 1 discloses an [a]pparatus for inflating tubeless tires on a vehicle wheel having oppositely disposed rim portions comprising a tire mounting device including a base, means on said base to receive a vehicle wheel, clamp means for engaging the wheel, said device including means for mounting and de-mounting tires on a wheel held by said clamp means, tire bead seating apparatus on said base including an annular tube of larger outer diameter than the wheel to surround the lower rim of a wheel set onto the base, orifice means around the inner periphery of the tube for injecting a substantially continuous ring of air under pressure through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on the wheel *1120 and inlet means on the tube for supplying air under pressure to the interior of the tube. Claim 2 defines the above-mentioned clamp means and inlet means and characterizes the annular tube as a series of discrete arcuate segments arranged in a circular pattern. Claim 3 adds a mechanism to the apparatus described in claim 1 which could move the apparatus towards or away from the wheel and tire assembly. Claim 4 is an independent apparatus claim, upon which claims 5-9 are dependent. It discloses an [a]pparatus for inflating tubeless tires on a vehicle wheel having oppositely disposed rim portions, comprising a tire mounting device including a base, means on said base to receive a vehicle wheel, said device including means for mounting and de-mounting tires on a wheel tire bead seating apparatus on said base including an annular orifice structure including orifice means provided around a periphery of larger diameter than the diameter of a wheel to surround the lower rim of a wheel set onto the base for injecting air under pressure around the periphery of the wheel through the space between the wheel rim and the bead of a noninflated tubeless tire mounted on the wheel in sufficient amounts, without using a mechanical seal, so that more air will be injected into the tire than may escape with the result that the tire will be expanded to cause the tire beads to sufficiently close on the wheel rims to permit complete inflation through the conventional valve, and inlet means on said orifice structure for supplying air under pressure to the orifice means. Claim 5 characterizes the orifice structure of claim 4 as an annular tube. Claims 6 and 7 modify claim 4 in the same way that claims 2 and 3 modify claim 1. Claim 8 adds a bead breaking structure to the apparatus defined in claim 4, and further describes the orifice structure as a ring-like tubular passageway provided with a gap through which the bead breaking structure may pass. Claim 9 teaches the addition of a shelf structure, equipped with an orifice structure in the form of an annular passageway on its periphery, to the top of the base of the mounting device. Claims 10 and 11 are two of the three method claims of the '871 patent. Claim 10 teaches [t]he method of inflating a tubeless tire on a vehicle wheel comprising the steps of mounting a vehicle wheel and non-inflated tubeless tire assembly on a support surface of a tire mounting device, injecting air under pressure into the tire peripherally around the wheel through the space between the wheel rim and the tire bead adjacent the support surface in sufficient amounts, without using a mechanical seal, so that more air is injected into the tire than may escape with the result that the tire is expanded to cause the tire beads to sufficiently close on the wheel rims to permit complete inflation through the conventional tire valve, and then completely inflating the tire by injecting air under pressure through the conventional tire valve. Claim 11 adds to the above-recited method the step of lifting the tire so that the top bead makes contact with the wheel rim prior to the injection of air into the cavity formed by the tire carcass and the wheel. Claim 12 discloses an [a]pparatus for inflating tubeless tires on a vehicle wheel having oppositely disposed rim portions, comprising a tire mounting device including a base, means on said base to receive a vehicle wheel, said device including an orifice for injecting air under pressure through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on the wheel in sufficient amounts, without using a mechanical seal, so that more air will be injected into the tire than may escape with the result that the tire will be expanded to cause the tire beads to sufficiently close on the wheel rims to permit complete inflation through the conventional valve, and inlet means on said orifice structure for supplying air under pressure to the orifice means. *1121 Claim 13 reveals [t]he method for inflating a tubeless tire on a vehicle wheel comprising the steps of mounting a vehicle wheel and non-inflated tubeless tire assembly on a support surface of a tire mounting device, injecting air under pressure into the tire through the space between the wheel rim and the tire bead adjacent the support surface in sufficient amounts, without using a mechanical seal, so that more air is injected into the tire than may escape with the result that the tire is expanded to cause the tire beads to sufficiently close on the wheel rims to permit complete inflation through the conventional tire valve, and then completely inflating the tire by injecting air under pressure through the conventional tire valve. Claim 14, upon which claims 15 and 16 are dependent, teaches an [a]pparatus for seating the bead of a tubeless tire on the rim of a wheel and inflating the tire comprising: a. a plenum in the form of a discontinuous ring having an inlet for receiving air under relatively high pressure therein; b. a plurality of jets in communication with said plenum for forming relatively high velocity jets of air enamating from said plenum; and c. said jets being positioned for directing said jets of air into the tire between the rim and the bead.[[16]] Claim 15 describes the plenum of claim 14 as at least partially accurate. Claim 16 discloses the presence of at least 12 jets in the apparatus disclosed in claim 14. Hennessy raises several arguments against the validity of the claims of the '871 patent. First, it maintains that claims 12, 14, 15, and 16 are invalid under the late claiming doctrine of Muncie Gear Works, Inc. v. Outboard Marine & Manufacturing Co., 315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171 (1942). Second, it contends that the patent is invalid for double patenting. Third, Hennessy claims that the claims at issue are void under the doctrine of Lincoln Engineering Co. v. Stewart Warner Corp., 303 U.S. 545, 58 S.Ct. 662, 82 L.Ed. 1008 (1938). Fourth, it says that the claims are unpatentable for obviousness. In pertinent part, 35 U.S.C. 102(b) provides that a person shall not be entitled to the issuance of a patent if the invention was in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States. The late claiming doctrine of Muncie Gear holds that an inventor may not achieve by amending a pending application what he is prohibited by section 102(b) from accomplishing by way of a new application. Faulkner v. Baldwin Piano & Organ Co., 561 F.2d 677 (7th Cir. 1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978). Hennessy contends that claim 12 is invalid under this doctrine because it was added by amendment to the application that ultimately matured into the '871 patent on September 5, 1972, which is more than one year after the first sales of the device embodying the Corless inventions, which occurred in May, 1970. Hennessy also argues that claims 14-16 are invalid for late claiming on the ground that they were added to the application on November 9, 1972, which is more than a year after Hennessy publicly disclosed its discontinuous ring inflater, which disclosure occurred in September, 1971. The court will first address Hennessy's argument concerning the validity of claims 14-16. 35 U.S.C. § 132[17] and 37 C.F.R. § 1.118[18] prohibit the introduction *1122 of "new matter" into an application by way of amendment.[19] By allowing claims 14-16, all of which were added to the application that matured into the '871 patent by the amendment dated November 9, 1972, the Examiner in the Patent Office clearly found them not to constitute "new matter" with respect to either the '705 patent or the application for what became the '871 patent. This determination is presumed to be correct. Technion Instruments Corp. v. Coleman Instruments Corp., 385 F.2d 391, 393 (7th Cir. 1967). Hennessy has not presented the testimony of any qualified experts in opposition to this determination,[20] and the court concludes that these claims do not constitute "new matter" with respect to either the '705 patent or the original application for the '871 patent. Thus, there was no late claiming with regard to these claims. See, e. g., Rel-Reeves, Inc. v. United States, 534 F.2d 274, 280, 209 Ct.Cl. 595 (1976); Acme Highway Products Corp. v. D. S. Brown Co., 431 F.2d 1074 (6th Cir. 1970), cert. denied, 401 U.S. 956, 91 S.Ct. 977, 28 L.Ed.2d 239 (1971); Binks Mfg. Co. v. Ransburg Electro-Coating Corp., 281 F.2d 252, 257 (7th Cir.), cert. granted, 364 U.S. 926, 81 S.Ct. 353, 5 L.Ed.2d 265 (1960), writ dismissed, 366 U.S. 211, 81 S.Ct. 1091, 6 L.Ed.2d 239 (1961); Illinois Tool Works, Inc. v. Continental Can Co., 273 F.Supp. 94, 123 (N.D.Ill.1967), aff'd, 397 F.2d 517 (7th Cir. 1968).[21] In regard to the Muncie Gear objection to claim 12, the court notes that the Examiner implicitly found that it, too, did not insert "new matter" into the then pending application. Again, Hennessy attempts to rebut the presumption of correctness attached to this determination solely by observing that no prior claim in any of the three patents in suit literally claimed what claim 12 claims — "an orifice". However, once again, Hennessy has failed to rebut this presumption. The original application for the '871 patent adequately disclosed the subject matter of claim 12. For instance, claim 4 is identical to claim 12, except that it substitutes an annular orifice structure including orifice means provided around a periphery of larger diameter than the diameter of a wheel to surround the lower rim of a wheel set onto the base for injecting air under pressure around the periphery of the wheel for the latter claim's "an orifice for injecting air under pressure". These differences are not significant. "Orifice means" comprehends "an orifice" — "inlet means" is used in the same application to describe one inlet. The specifications expressly state that it is not necessary to employ an annular orifice structure in order to utilize the invention disclosed in the application. The "periphery" language is plainly intended merely to reflect the fact that air to be injected into the window must be injected from a position beyond the wheel rim if a bead is to be seated without using a mechanical seal. This requirement is clearly present in the language of claim 12. Hence, the court is not convinced that the Patent Office Examiner's conclusion that claim 12 did not constitute "new matter" *1123 with respect to the application that matured into the '871 patent was erroneous. This does not, however, resolve the question of whether claim 12 is invalid for late claiming, because the filing date of the application that matured into the '871 patent, July 26, 1971, is more than twelve months after May, 1970. Consequently, late claiming will only be avoided if claim 12 is entitled, under 35 U.S.C. § 120,[22] to enjoy the benefit of the earlier filing date of the '705 patent, which was co-pending with the original application for the '871 patent. The court finds that claim 12 is entitled to the benefit of an effective filing date of November 16, 1970.[23]Technion Instruments Corp. v. Coleman Instruments Corp., 385 F.2d 391 (7th Cir. 1967), teaches that [t]o come within the purview of 35 U.S.C. § 120, the following qualifications must be met by the later patent application. 1) The same invention must be disclosed. 2) It must be filed by the same inventor. 3) It must be filed before patenting of the first application. 4) It must contain a specific reference to the earlier-filed application. If the conditions are met, the effective filing date of the later application is that of the earlier application. 385 F.2d at 393. These tests are met in this case. The application that matured into the '871 patent, as originally filed, adequately disclosed the same invention disclosed by the then-pending application for the '705 patent. Specifically, claim 12 of the '871 patent describes, with two modifications, the apparatus of claim 13 of the '705 patent.[24] The former claim differs from the latter in that it lacks claim 13's positioning/holding structure and contains the additional element of the modified tire mounting device. Both of these modifications were taught by the original disclosures of the application for the '705 patent. In sum, the application for the '705 patent, which was co-pending with the application for the '871 patent, adequately, see Bendix Corp. v. Balax, Inc., 421 F.2d 809 (7th Cir.), cert. denied, 399 U.S. 911, 90 S.Ct. 2203, 26 L.Ed.2d 562 (1970), disclosed the same invention as that claimed in claim 12. The amendment inserting claim 12 into the application for the '871 patent was filed by Corless' appointed attorneys. Finally, the application for '871 patent contained a specific reference to the co-pending application. Because claim 12 is entitled to the benefit of an effective filing date of November 16, 1970, Hennessy's charge of late claiming must be rejected. The court concludes that the same fate must befall Hennessy's Lincoln Engineering-based attack on claims 1-13 of the '871 patent. These claims involve the combination of a modified tire mounting device and a tire bead seater and inflater in one apparatus. This combination had been known in the tire inflation art prior to the filing of the application for this patent, see, e. g., the above-mentioned Riggs patent, but always in the context of tire bead seating and inflation mechanisms reliant for their efficacy upon an initial mechanical seal. After revolutionizing the field of tubeless tire inflation through his invention of the device *1124 revealed by the '469 patent, Corless naturally sought to patent that invention in combination with a tire mounting device. In Lincoln Engineering, the Supreme Court held that [t]he mere aggregation of a number of old parts or elements which, in the aggregation, perform or produce no new or different function or operation than that theretofore performed or produced by them, is not patentable invention. And the improvement of one part of an old combination gives no right to claim that improvement in combination with other old parts which perform no new function in the combination. 303 U.S. at 549-550, 58 S.Ct. at 664-665 (footnotes omitted). However, at the very least, this ruling has been severely limited by the Court's subsequent decision in Williams Manufacturing Co. v. United Shoe Machinery Co., 316 U.S. 364, 62 S.Ct. 1179, 86 L.Ed. 1537 (1942). This court shares the view of the Second Circuit Court of Appeals that subsequent history militates against an expansive application of the Court's reasoning in Lincoln Engineering. Jamesburg Corp. v. Litton Industrial Products, Inc., 586 F.2d 917, 924 (2d Cir. 1978), cert. denied, 440 U.S. 961, 99 S.Ct. 1503, 59 L.Ed.2d 774 (1979). Under the facts of this case, the court can see no reason to apply the doctrine of Lincoln Engineering to invalidate these claims. Any device that infringes them would also infringe one of the earlier patents. The disclaimer of that portion of the life of the '871 patent extending beyond the life of the '469 patent eliminates the possibility that the upholding of these claims could improperly extend Corless' monopoly over his bead seating invention beyond the 17 year statutory limit. Indeed, the addition of the elements concerning the tire changer machine narrows rather than broadens the claims. Further, this is not a lawsuit against a contributory infringer. See, Jamesburg Corp. v. Litton Industrial Products, Inc., 586 F.2d at 924. Moreover, this case does not concern an attempt to patent a combination of which all the elements are old.[25] Finally, all of the elements of the claims must cooperate to perform the desired end of the tire bead seating and inflation. Cf. Reese v. Elkhart Welding and Boiler Works, Inc., 447 F.2d 517 (7th Cir. 1971).[26] Therefore, the court does not find the rule of Lincoln Engineering applicable to this case, and Hennessy's over-claiming argument falls. Turning next to Hennessy's double patenting objection to the '871 patent, the court again notes that a terminal disclaimer has been filed in the Patent Office disclaiming the portion of the life of the '871 patent extending beyond the life of the '469 patent. Hence, the validity of the '871 patent can only be challenged under the "same invention" aspect of the double patenting doctrine. As such, the question before the court is whether the claims of the '871 patent are cross-readable on the claims of the '705 patent or the '469 patent. Upon examination of the three patents, the court finds that the claims of the '871 patent are not cross-readable on the claims of the earlier filed patents. None of the former claims requires the "inwardly extending structure" that is an element of each of the latter claims. Moreover, with the exception of claims 14-16, each of the claims of the '871 patent require the presence of a modified tire mounting device, which is not required by the claims of the other two patents. Accordingly, Hennessy has not proven the '871 patent invalid for double patenting. Hennessy does not contend, and the court does not find, that the '469 patent or the '705 patent constitute prior art with *1125 regard to the '871 patent, within the meaning of 35 U.S.C. § 103. Therefore, the court rejects Hennessy's obviousness attacks on the validity of claims 1, 4, 5, 8, 10-12 and 14-16 of the '871 patent for the same reasons that it rejected similar contentions concerning the validity of the '469 patent.[27] Accordingly, the court finds all of the contested claims of the '871 patent to be valid. INFRINGEMENT 35 U.S.C. § 271(a) provides that [e]xcept as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent. Infringement may be shown in one of two ways. On the one hand, infringement is proved if the accused device falls literally within a claim. As the Supreme Court remarked in Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950), [i]n determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the claim, infringement is made out and that is the end of it. 339 U.S. at 607, 70 S.Ct. at 855. On the other hand, under the doctrine of equivalents, infringement will also be found, despite the fact that the accused device is not an exact copy of the patent device, "if [the former] performs substantially the same function in substantially the same way to obtain the same result." [citation omitted]. The theory on which it is founded is that "if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape". [citation omitted]. 339 U.S. at 608, 70 S.Ct. at 856. In either case, it is the claims of the allegedly infringed device that define the scope of the patent grant. CTS Corp. v. Piher International Corp., 527 F.2d 95, 100 n.16 (7th Cir. 1975), cert. denied, 424 U.S. 978, 96 S.Ct. 1485, 47 L.Ed.2d 748 (1976). And in either case, the burden of proving infringement rests on the party alleging it. Decker v. Webcor, Inc., 289 F.2d 357, 360 (7th Cir. 1961), cert. denied, 368 U.S. 970, 82 S.Ct. 445, 7 L.Ed.2d 398 (1962). Infringement must be proven by a preponderance of the evidence. The structures accused of infringement in this suit are the Coats manufactured, Hennessy marketed inflaters known as Inflat-Air and Air-Flate. Each has been manufactured in varying forms so that they may be attached to the different models of Coats tire changers. However, neither party contends that these minor variations effect the infringement issue in any way. The Inflat-Air structure is an annular tube bent into a circular arc of approximately 260°. The ends of the tube are seated, and a gap exists between them. About 20 holes of equal size are located on this tube. Except for the holes adjacent to the gap, each of the holes is separated by an equal distance from the holes on either side of it. All of the holes are directed towards the center of the tire changing machine.[28] The Air-Flate device is a U-shaped steel tube whose ends are sealed. The tube embraces an arc of approximately 260°. It mounts four nozzles, each of which is directed toward the center of the tire changing machine. These nozzles lie virtually on the circumference of a circle, and they are spaced at intervals of 90°. James Holladay (Holladay), defendant's primary technical expert and the developer of the Air-Flate structure, conceded at trial that these two accused devices operate on the basis of the same principle. This court *1126 agrees, finding that the differences between the two devices are reducible to the scientific fact that a decrease in the number of holes injecting air into a space can be compensated for by increasing the size of — and the quantity of air emerging from — the remaining holes. B & J accuses the Inflat-Air device of infringing claims 1-4, 11, and 16-19 of the '469 patent, claims 1, 12 and 13 of the '705 patent, and claims 1, 4, 5, 8, and 10-16 of the '871 patent. It alleges that the Air-Flate structure infringes claims 6-19 of the '469 patent, claims 12 and 13 of the '705 patent and claims 4, 8, 14 and 15 of the '871 patent. Hennessy's primary argument against infringement is that neither of the accused devices involves a "substantially continuous ring of air under pressure", and that B & J is estopped by Corless' dealings with the Patent Office and by a statement made by Corless at trial from asserting any broader scope for its patent rights, either through the literal language of its claims that do not expressly require said ring or by way of the doctrine of equivalents. Hennessy maintains that the amendment of the application that matured into the '469 patent, which amendment was filed on January 19, 1970, before the Patent Office had taken any action on said application, created a file wrapper estoppel that prevents the application of the doctrine of equivalents to find infringement in the case of an accused device which lacks the feature of a "substantially continuous ring" of air inserted into the language of the claims of the application for the '469 patent by that amendment. It then states, citing C-Thru Products v. Uniflex, Inc., 262 F.Supp. 213, 217-219 (E.D.N.Y.1966), aff'd, 397 F.2d 952 (2d Cir. 1968), that Corless could not avoid this file wrapper estoppel by filing a later, broader application with the Patent Office. The doctrine of file-wrapper estoppel is that an applicant who acquiesces in rejection of his patent claim and accordingly modifies it to secure its allowance, will not subsequently be allowed to expand (or narrow) his claim by interpretation to include limitations originally given up, or their equivalents. Ellipse Corp. v. Ford Motor Co., 452 F.2d 163, 168 (7th Cir. 1971), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972) (citations omitted). In this Circuit, the law is that "[a] necessary condition for the establishment of a file wrapper estoppel is that the patentee must have narrowed his claim in response to an objection by the Patent Office in order to obtain the patent". Bishman Manufacturing Co. v. Stewart & Warner Corp., 380 F.2d 336, 340 (7th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 216, 19 L.Ed.2d 214 (1967). Since no objection — or any other communication from the Patent Office to Corless — preceded the amendment in question, the doctrine of file wrapper estoppel is inapplicable to this case.[29] Hennessy also urges the court to restrict the claims of Corless' patents to devices employing a "substantially continuous ring of air under pressure" because he stated at trial that without such a ring, no device not including a mechanical sealing element could in fact seat the beads of and inflate a problem tubeless tire. In light of Hennessy's contention that its devices accomplish this allegedly impossible result, the court finds this argument somewhat disingenuous. The court also notes that Corless' expertise in fluidics — the art relevant to making such a determination — has not been established. While the court is of the opinion that the purpose of the amendment was merely to reiterate to the Patent Office the fact that, unlike all of the prior art — including the Bishop patent referred to in the *1127 letter requesting the entry of the amendments at issue — the '469 device does not require the use of a mechanical seal,[30] it is not necessary for the court to resolve the file wrapper estoppel questions at this time. This is because there is no occasion to resort to the doctrine of equivalents — hence, file wrapper estoppel is unavailable as a defense—where the claims in suit read literally upon the accused structure. Paper Converting Machine Co. v. FMC Corp., 409 F.2d 344, 353-354 (7th Cir.), cert. denied, 396 U.S. 877, 90 S.Ct. 154, 24 L.Ed.2d 136 (1969). The court finds that the accused devices do, in fact, operate by injecting a "substantially continuous ring of air" into the window. The court comes to this conclusion after having witnessed the actual operation of Corless' commercially sold embodiment of the '469 invention, the Omega jet, and a videotape of the operation of the accused Air-Flate structure. The court has found the testimony of, and, to an even greater extent, the in-court demonstrations conducted by, plaintiff's expert witness, George B. Richards, to be particularly helpful in terms of furthering its understanding of the operation of the various devices and of the principles of fluidics that underlie their operation.[31] The court has concluded that the evidence concerning the air-flow tests conducted by Holladay is not persuasive evidence to the contrary because of the fact that they involved the spraying of liquid paint by the inflater's air jets, which substance concededly has different air flow characteristics than does gas or air. Finally, the court, as a factual matter, simply rejects Hennessy's scientific explanations of the operation of the accused devices, which, if pressed to their irresistible logical conclusion, would even teach that the apparatus claimed in the '469 parent itself does not operate by reason of the injection of a substantially continuous ring of air into the window. These major points of dispute having been resolved, the court is left with a number of minor defenses raised by Hennessy against the charged infringement. The court finds all of these arguments without merit. In its Post Trial Brief, Hennessy argues that the Inflat-Air structure does not infringe any of the claims relied on by B & J because it "does not inject one peripherally around the wheel." The court disagrees, because, as noted above, the court construes the use of the terms "periphery" and "peripherally" in the claims, in this context, as solely indicating that the air must be injected into the window from its outside periphery. Hennessy also maintains therein that infringement of claims 1-4 and 11 of the '469 patent is avoided by virtue of the fact that those claims "required that the orifice structure be placed over the wheel, not under as in the Inflat-Air". However, these are equivalent procedures, and, as Hennessy raises no file wrapper estoppel defense with regard to any aspect of the claims other than the "substantially continuous ring of air" language, infringement exists in this respect under the doctrine of equivalents despite the fact that the claims may not be literally infringed. Further, Hennessy claims non-infringement of method claims 17 and 18 of the '469 patent on the grounds that, in the Inflate-Air structure, injection of air through the tire valve is initiated before the discontinuance of the injection of air via the inflater, and that said discontinuation is achieved by use of a foot pedal. These are legally insignificant distinctions. The Inflat-Air device relies, in this respect, on substantially the same method of operation as the relevant claims of the '469 patent: the inflater achieves sufficient bead seating so that the tire can be inflated via the tire valve; the injection of air through the valve then inflates the *1128 tire; and this inflation occurs after the bead seating device has done its work. Finally, in its Reply Brief, Hennessy suggests that the '469 patent is not infringed because it requires an unbroken tube, the entire periphery of which is virtually over-populated with orifices. The court rejects this strained reading of the patent. Having considered the arguments raised by Hennessy and having examined the patents and the accused device, the court holds that each of the claims cited by B & J is infringed by the Inflat-Air structure, either literally or by operation of the doctrine of equivalents. Turning to the question of infringement of the claims of the three patents by the Air-Flate device, the court observes that Hennessy asserts the same non-infringement defenses with regard to the claims of the '469 patent that it raised in connection with the charges of infringement of those claims by the Inflat-Air apparatus. Those defenses are equally without merit in this context. The court also finds Hennessy's challenge to the allegations of infringement of claim 12 of the '705 patent and claims 4 and 8 of the '871 patent on the ground that the Air-Flate structure does not inject air "around the periphery" of the wheel to be unpersuasive because, as intimated above, the court construes this language in the claims as signifying that the air under pressure is to be injected into the window from the outside thereof. Nor does the court subscribe to Hennessy's restrictive reading of claim 12 of the '705 patent. Hennessy would have it that the Air-Flate structure does not infringe that claim if B & J has shown that ambient air plays a role in the operation of the device (which, of course, Hennessy denies). But the court does not read the claims so narrowly. The claim only requires the injection from the orifice structure into the window of "sufficient" air under pressure to seat the bead to the extent that the tire can be inflated through the tire valve. It does not preclude the participation of ambient air, caused by the injection of air from the orifice structure, in the seating process. In either case, it is the jets emitted by the inflater that form the substantially continuous ring, even though a portion of that ring may consist of air not injected from within the inflater. Finally, Hennessy denies infringement of claims 12 and 13 of the '705 patent and claims 4, 8, 14, and 15 of the '871 patent on the ground that the Air-Flate structure is U-shaped, not circular. This is a legally insignificant distinction. Based upon its examination of the patents in suit and the Air-Flate device, the court holds that each of the claims cited by B & J is infringed, either literally or by operation of the doctrine of equivalents, by that structure. In conclusion, the court rules that B & J has proven that the Inflat-Air structure infringes claims 1-4, 11, and 16-19 of the '469 patent, claims 1, 12, and 13 of the '705 patent, and claims 1, 4, 5, 8, and 10-16 of the '871 patent and that the Air-Flate device infringes claims 16-19 of the '469 patent, claims 12 and 13 of the '705 patent, and claims 4, 8, 14, and 15 of the '871 patent.[32] LICENSE As mentioned above, Hennessy became a non-exclusive licensee under the patents in suit under June 1, 1971. It now claims that this license constitutes an affirmative defense to the charge of infringement. B & J, on the other hand, contends that the license only granted Hennessy the right to make, use, and sell OEM machines. Consequently, it argues that Hennessy's manufacture and sale of Inflat-Air and Air-Flate "kits" was unlicensed. Indeed, B & J maintains that the sale of these kits constituted a breach of the license sufficient to render its purported termination of the license in November, 1971, effective. Alternatively, B & J says that the license was terminated by it in 1974 because of Hennessy's removal *1129 of the patent marking notice in violation of the terms of the license agreement. The parties filed cross-motions for summary judgment on the license issues well before the trial. This court, in an opinion dated October 19, 1976 (Opinion), which appears at 194 U.S.P.Q. 496, held that Hennessy could not assert a license defense against the charge of infringement with regard to the manufacture and sale of kits, and that, in the event that such kits were found to infringe the patents in suit, their manufacture or sale did not constitute a breach of the licensing agreement. The court reserved judgment on the patent marking question. Both parties have asked the court to reconsider this decision. After hearing substantial amounts of evidence at trial on the questions involved therein, the court reaffirms the conclusions that it reached in the Opinion. As to the patent marking issue, the court rules that B & J effectively terminated the license agreement in 1974. Scope of the 1971 Licensing Agreement The language in the licensing agreement that pertains to the question of whether BCI granted Hennessy the right to make, use or sell kits is as follows: LICENSOR hereby grants to LICENSEE a nonexclusive license on the terms and conditions hereinafter set forth to make, have made, use and sell Tire Mounting Machines incorporating bead seating and inflation apparatus claimed in the following Patents and Patent Applications. Hennessy argues that the word "incorporating" is ambiguous as to the time and place of incorporation, and that it should be construed against the scrivener, BCI, which was B & J's predecessor-in-interest. Hennessy further contends that Robert Hennessy (RH), the President of Hennessy, who conducted the negotiations with Caulkins that led to the granting of the license, reasonably believed that he had obtained for his company the right to make, use or sell kits as well as OEM machines. Next, Hennessy suggests that, on account of his years of dealings with Hennessy while he was with Atlas, Caulkins knew about Hennessy's modus operandi, which included a general practice of making new improvements available as conversion kit accessories to previous purchasers of its tire changers. Because Caulkins never expressly told RH that that policy could not be followed with regard to his bead seating apparatus, Hennessy claims that this case falls within the purview of Restatement of Contracts § 233(b), which states that where a party manifests his intention ambiguously, knowing or having reason to know that the manifestation may reasonably bear more than one meaning, and the other party believes it to bear one of those meanings, having no reason to know that it may bear another, that meaning is given to it. Accordingly, Hennessy insists that the word "incorporating" should be construed to include incorporation of the bead seating and inflation apparatus into tire mounting machines in the field as well as in the shop. The court is not persuaded by Hennessy's argument. First, the terms of the license themselves indicate that the parties intended the license to cover only OEM machines. The grant, after all, is to "make, have made, use and sell Tire Mounting Machines incorporating" Corless' inventions, not to "make, have made, use and sell bead seating and inflation apparatus for incorporation into Tire Mounting Machines". Moreover, since BCI had no patent rights with regard to "Tire Mounting Machines" per se, the only reasonable construction of the language of the grant is that it covered OEM machines and nothing more. Second, even granting that, under Ortman v. Stanray Corp., 437 F.2d 231 (7th Cir. 1971), parol evidence is admissible even in an "integrated" contract to discover what the parties truly meant by the term "incorporating", the court finds Hennessy's contentions unconvincing. Caulkins may well have been familiar with Hennessy's general policy of providing owners of old Coats tire changers with access to new improvements by marketing them as conversion kit accessories. However, RH could not have "reasonably" *1130 believed that the license included the grant of a right to do so in this case. While this precise question never arose prior to Hennessy's actual marketing of kits in September, 1971, other questions as to the scope of the license had already been explicitly resolved.[33] Specifically, when Hennessy initially offered to obtain exclusive rights to make and market the patented devices in any form, Caulkins turned it down. Hennessy then proposed that it be able to manufacture and sell the devices in the form of a platform equipped with the apparatus as well as in connection with its sales of tire changing machines, although it acknowledged that it would not be licensed to manufacture hand-held devices like the Omega jet, the above-mentioned embodiment of the '469 patent. This suggestion, too, was rejected, as Caulkins would not allow Hennessy to make an inflation stand. Indeed, RH testified at trial that Caulkins "refused to relent as to that item". It should have been clear to RH that Caulkins intended to permit Hennessy to make and sell only OEM machines, as any other use by it of the patents would inherently undercut his efforts to sell the hand-held Omega jet ring, particularly insofar as Caulkins was familiar with Hennessy's standing in the tire changer market, which — given customer loyalty and the importance of reputable brand names and organization in marketing — would have allowed them to pre-empt the market for "retrofitting".[34] Thus, any belief that RH may have had that the agreement granted Hennessy the right to make and sell kits would have been unreasonable.[35] Additionally, the court does not believe that RH, or any other responsible officer of Hennessy, in fact so understood the contract on June 1, 1971. The court is of the opinion that RH never thought about the question of whether kits fell within the scope of the license until he was faced with B & J's objections after the kits were marketed. See note 33, supra. For these various reasons, the court again holds that the license agreement did not grant Hennessy the right to make, use, or sell inflater kits covered by the Corless patents in suit. Manufacture and Sale of Inflat-Air Kits as Breach Hennessy first publicly demonstrated a tire changing machine equipped with an Inflat-Air structure at an industry show in Cincinnati, Ohio, in mid-September, 1971. The Inflat-Air device employed at the show was designed and built immediately before the show, and was flown down to Cincinnati at literally the last minute and retrofitted onto (i. e., attached to) a tire changing machine.[36] The machine was well received. In fact, it was so well received that owners of Coats tire changers asked if they could buy the Inflat-Air apparatus as an accessory which they could retrofit into their old tire changing machines. RH then made the formal decision to offer them kits, and their queries were answered in the affirmative. Immediately after the Cincinnati show, Hennessy, with the aid of B & J personnel, shipped the Inflat-Air-equipped tire changing machine that it had displayed there to Germany, where it was demonstrated at an industry show at the end of September. Evidently, the sale of kits was more aggressively pursued at the European show, and it came to the attention of B & J. *1131 On October 5, 1971, B & J's President, Wayne E. Jenson (Jenson), having been apprised of these developments, made an angry phone call to RH. Jenson's ire was aroused because he felt Hennessy had not been licensed to make or sell kits. Jenson threatened to cancel the licensing agreement if the kits were not withdrawn from the market, stating that the sale of kits threatened to interfere with his ability to sell the Omega jet rings that he had purchased from BCI along with its entire right, title, and interest in and to the patents in suit in July, 1971. Three days later counsel for B & J sent Hennessy a letter stating that his client regarded the sale of Inflate-Air kits as a breach of the above-quoted paragraph of the license agreement. In addition, counsel wrote that the letter constituted written notice of breach as required by section 8 of the contract, and that if the breach was not cured, the license would be terminated in thirty days, in accordance with that provision.[37] There followed a period of negotiations, during which the parties discussed the possibility of settling the dispute out of court. Although these discussions continued, B & J considered the license agreement terminated as of November 8, 1971. Finally, the negotiations collapsed and, on February 28, 1972, B & J returned Hennessy's check covering the royalty payments that Hennessy felt were due and owing for the last quarter of calendar year 1971. It continued thereafter to refuse to accept other tendered royalty payments.[38] As mentioned above, the court, in its previously published opinion, ruled that Hennessy's manufacture and sale of the kits did not constitute a breach of the licensing agreement. In reaching this decision, the court relied on three facts. First and foremost was the fact that the agreement is an integrated contract lacking any express condition prohibiting Hennessy from making or selling kits.[39] Second was the fact that the inference of an implied negative condition is not "absolutely necessary" to effectuate the purpose of the agreement or to preserve either party's rights thereunder. Third was the fact that the evidence failed to show that the parties intended that such a negative condition exists. B & J has requested that the court reconsider its decision as to the law applicable to the resolution of this dispute. In addition, it insists that the court's conclusion regarding the second and third facts that the court had stated to be critical to its ruling on this issue in the Opinion should be re-examined in light of the evidence adduced at trial. Thus B & J challenges the court's earlier disposition of this issue as erroneous both in terms of its legal predicate and its application of the law therein deemed applicable to the facts of this case. The court disagrees with B & J on both counts. As an initial matter, the court continues to adhere to the position taken by it in the Opinion as to the law to be applied in *1132 this case. That is, the court believes that where the implication of a negative covenant into an integrated agreement is not "`absolutely necessary . . . to effectuate the intention of the parties'", S. Williston § 1295, at 36 (1968) (footnote omitted), no such negative covenant should be implied as a matter of law, especially in the face of an express integration clause. Further, the court still finds that the parties did not intend the manufacture and sale of kits by Hennessy to constitute a breach of this licensing agreement. In the Opinion, the court observed that the licensor merely meant the license to specify what the licensee could do under the agreement, and not to prohibit it from doing anything. The live testimony at trial has not altered the court's conviction in this regard. B & J claims that the trial testimony establishes that Hennessy's officers did not share this view of the meaning of the contract. Such a unilateral belief, if it existed, would not satisfy the test articulated by Williston. But the court does not so interpret the testimony of RH and his brother James, an Executive Vice-President of Hennessy, upon which B & J relies. Rather, the court views their testimony, taken as a whole, as crudely attempting to state the obvious fact that when one is granted a license to do X, it is understood that one will only do X. Of course, their recognition of this truth does not show that any one regarded the doing of "not-X" — i. e., the manufacture and sale of kits — as a breach of the license agreement.[40] In sum, the court remains unpersuaded that the implication of a negative covenant would "effect the intention of the parties". Finally, even if this were not so, the court still believes that the possibility of a patent infringement suit to protect B & J's rights as BCI's successor-in-interest under the agreement negates any inference that the implication of such a covenant is "absolutely necessary" to the effectuation of the parties' intentions. B & J suggests that the insertion by the court of a covenant not to manufacture or sell kits into the agreement is necessary because Caulkins consented to a severe limitation of royalties in exchange for such a promise and because by violating the "understanding", Hennessy totally destroyed the finite "retrofit" market to which Caulkins hoped to sell his hand held inflater. The court, however, does not regard the evidence as establishing the existence of any such quid pro quo,[41] and it finds the availability of relief in an infringement suit as sufficiently providing Caulkins with insurance against the destruction of the finite "retrofit" market by making available to him the retirement money that B & J says he wanted.[42] *1133 For these reasons, the court again holds that the manufacture and sale by Hennessy of kits was not per se a breach of the June 1, 1971 licensing agreement. Removal of Patent Markings as Breach As a result of Jenson's angry phone call of October 5, 1971, with its threat of cancellation of the license, RH was determined to scrupulously comply with the terms of the license, as Hennessy understood them. To this end, he called Hennessy's patent lawyer, who also acted as its counsel in the trial of this case, and inquired as to whether a patent marking had to be put on the Inflat-Air device. When counsel, who had also participated in the negotiation of, and was familiar with the terms of, the license, informed him that "you had better be sure you have the patent markings on that" in order to conform to the requirements of the contract, RH ordered marking notices put on the Inflat-Air devices.[43] Thus, the marking of the Inflat-Air device represented the deliberate conclusion of counsel, who had studied the patents in suit and the prior art, that the Inflat-Air devices were made "under the license". And this conclusion was shared by RH, who had negotiated for the license and who had "reexamined" it before ordering the markings put on. No marking notice was ever put on Air-Flate structures. In April, 1973, as a result of the ongoing dispute with B & J that would soon — i. e., on August 23, 1973 — enter the Federal courts, counsel for Hennessy recommended to RH that these markings be removed and that no further patent markings be placed on the Inflat-Air apparatus. RH, in turn, ordered the markings removed. Nonetheless, owing to some bureaucratic foul-up, this was not accomplished until some time in September, 1973. Hennessy's actions did not immediately come to the attention of B & J. Ultimately, however, they did. On August 13, 1974, a letter was sent to Hennessy from counsel for B & J notifying Hennessy, in conformity with section 8 of the license agreement, that B & J regarded Hennessy's failure to mark its inflation devices as a breach of the agreement. When this alleged breach was not timely cured, counsel for B & J sent Hennessy a letter dated September 16, 1974, which notified Hennessy that, in the event that B & J's 1971 termination of the agreement had been ineffective, the agreement was now terminated for failure to cure the alleged patent marking breach.[44] In the opinion rendered upon the parties' cross-motions for summary judgment, the court declined to decide the marking/breach question, as noted above. At this time, with the full record before it, the court rules that the license agreement was effectively terminated by B & J by means of the letter from its counsel to Hennessy dated September 16, 1974. Section 6 and 8 of the contract are relevant to the resolution of this issue. Section 6 of the license agreement provides that [a]ll products made, used or sold pursuant to the license herein granted shall bear the proper legal notice as to the patent markings with respect to any patents *1134 under which the same are made and licensed. Section 8 of the contract states: If any breach or default in respect of any of the terms of this Agreement by either of the parties shall occur, the other of said parties shall have the right to give notice in writing specifying in detail the nature of the breach or default and if the alleged breach or default has, in fact, occurred and is not cured within thirty (30) days of the mailing of the notice, the other of said parties shall have the right to terminate this Agreement forthwith. (emphasis added). No parole evidence has been adduced by either party that sheds much light on the meaning of these provisions. However, the conduct of the parties throughout this dispute, from Hennessy's reaction to Jenson's angry phone call to Hennessy's failure to present any evidence at trial indicating that this is not so, suggests that both provisions were intended to mean exactly what they say: Hennessy was to put a patent marking notice of all products made or sold by it under the license, and its mistaken failure to do so would be grounds for termination, irrespective of its bona fides in so acting. However, even if, under the provisions of the contract itself, Hennessy's good faith in removing the notice would have saved it from termination, the court finds that Hennessy did not remove the markings in good faith. The court does not believe that this action was taken because Hennessy really believed its products to be non-infringing. In this connection, the court notes that, during the course of the long dispute with Jenson that preceded the filing of this lawsuit, Hennessy not only did not once allege non-infringement, but it repeatedly claimed that the accused Inflat-Air structure was being made and sold under the patent. No credible evidence has been presented to the court that would indicate that Hennessy, or its lawyers, had ceased to hold this belief when the markings were secretly removed.[45] Rather, the court holds that Hennessy removed the notices in an attempt to escape the effects of the marking estoppel doctrine in the event that a lawsuit materialized, and that this decision was made, not on the basis of a good faith belief that the Inflat-Air apparatus did not infringe the patents, but on the basis of a decision to groundlessly increase the burden that would be placed upon B & J in the event of litigation, a choice perhaps made in the hope of dissuading B & J from going to court. Of course, this means that the court finds that Hennessy had not yet arrived at the non-infringement defense it relied on at trial when these events occurred. Hennessy's arguments against the validity of B & J's 1974 termination of the contract are easily answered. Its claim that the patent marking was first put on the Inflat-Air devices without the allegedly requisite "specific intent", if relevant, has been rejected by the court. Its next argument, that there was no need to mark because there was no infringement, has obviously met the same fate. Its suggestion that marking was optional under the license is contrary to both the mandatory language of paragraph 6 of the contract and the interpretation thereof of Hennessy and its attorney, as revealed, by, inter alia, their conclusion in October, 1971, that notices had to be put on products made by it under the license. Hennessy's remaining arguments — that B & J's purported termination of the contract should not be given effect because this was a minor breach, B & J suffered no damage as a result thereof, and Hennessy had previously spent much money in reliance on the contract — are sufficiently answered by observing that if Hennessy did not want B & J to have the power to terminate the contract under these circumstances, it should not have signed a contract expressly giving it such power. While forfeitures are not favored by the law, "[a] *1135 provision as to the grounds on which the license may be terminated will be enforced according to its terms". 4 Deller's Walker on Patents § 410, at 645 (2d ed. 1964). Nor do the cases relied on by Hennessy, assuming, arguendo, that they are all still good law, indicate that a contrary result should be reached. For the most part these cases, like Crane Co. v. Aeroquip Corp., 504 F.2d 1086 (7th Cir. 1974), involved attempts to obtain cancellation or rescission in the absence of a written contractual provision authorizing such a remedy. Such cases are obviously inapposite here. Krell v. Bovaird Supply Co., 83 F.2d 414 (10th Cir. 1936), is not pertinent to the resolution of this case because in that case the relevant contract [did] not provide that it may be canceled for any and every breach. Neither [did] it provide that it may be rescinded for a breach of any covenant contained therein, whether it be dependent or independent. 83 F.2d at 416. In Slezak v. Andrews, 21 F.Supp. 688 (D.Del.1937), the remedy of cancellation was denied licensors because they failed to comply with the terms of the contractual provision governing their contractual right to rescission. No such failure is alleged to have occurred — or did occur — here. Indiana Manufacturing Co. v. Nichols & Shepard Co., 190 F. 579, 585 (C.C. Mich.1911), concerns the enforceability of a liquidated damage clause, not a provision allowing termination of a license. In I. F. Laucks, Inc. v. Balfour Guthrie & Co., Ltd., 35 U.S.P.Q. 206, 216 (W.D.Wash.1937), the court refused to enforce a termination provision in a license agreement where the licensee's breach of a minimum price provision of the contract was in good faith and the equities otherwise inclined the court in that direction. The element of good faith and the minor nature of the breaches were also central to the refusals of courts to enforce termination clauses in the context of late payment of small amounts of royalties in Carr v. Jaeger Mach. Co., 69 F.2d 434 (7th Cir. 1934), and Standard Stoker Co. v. Brewster, 277 F. 783 (7th Cir. 1921). Finally, in Foster House Supporter Co. v. Taylor, 184 F. 71 (2d Cir. 1911), the court ruled that, where the alleged breach was a result of a nonpayment of money, for which full compensation could be made, 184 F. at 73, equity might preclude forfeiture in accordance with the terms of a contract. In this case, Hennessy did not act in good faith in breaching the contract. The marking requirement that it violated was of sufficient importance to the parties to the contract that they provided that the breach of section 6 would allow the licensor to terminate the agreement. The court finds Hennessy's claim of reliance unpersuasive. It says it relied on the contract in making the Inflat-Air, but it now asks to be relieved, for this reason, of the known consequences of its subsequent — and continuing — refusal to acknowledge that the license applies to that device. The court does not find this position equitably compelling. Finally, the court notes that the result of its finding the contract to have been effectively terminated in 1974 will not be to render Hennessy's expenses in connection with the development of its inflation devices a waste of money, as B & J has offered to grant Hennessy a license to make the same devices it was previously licensed to make, albeit at the royalty rate that every other user of Corless' patents is now paying. For these reasons, even if the court had the equitable power to nullify paragraph 8 of the license agreement, it would not use that power in this case. Accordingly, the court finds that the license agreement between B & J and Hennessy was properly terminated by B & J by the letter from its counsel to Hennessy dated September 16, 1974. Therefore, Hennessy's manufacture and sale of the accused devices, in any form, after its receipt of that letter, constituted unlicensed infringement of the patents in suit. REMEDY This court having determined that Hennessy committed actionable infringement against the patents in suit by marketing the accused devices as kits and by making and marketing the same apparatus in any form after the termination of the license agreement, *1136 it remains to consider the remedy to be allowed B & J. Damages B & J is entitled to an accounting to determine its actual damages under 35 U.S.C. § 284.[46] It also asks that, in accordance with that statute, its actual damages be trebled. However, in light of the fact that the court concludes that the infringement by Hennessy was not willful and that the issues regarding patent validity, license, and infringement were litigated in good faith, B & J's request for treble damages is denied. Wahl v. Carrier Manufacturing Co., 511 F.2d 209 (7th Cir. 1975); Union Carbide Corp. v. Graver Tank Mfg. Co., 282 F.2d 653 (7th Cir. 1960), cert. denied, 365 U.S. 812, 81 S.Ct. 692, 5 L.Ed.2d 691 (1961). Hennessy's infringement of the patents in suit was not willful. The court finds that the question of whether the kits fall within the scope of the license grant was fairly debatable and was, in fact, litigated in good faith. The court further finds that the infringement resulting from B & J's termination of the license a year after the institution of these proceedings was not willful because, at that time, there existed fairly debatable issues of infringement (in light of the newly-conceived non-infringement/file wrapper estoppel defense) and the legal effect of B & J's purported terminations of the license, which issues were, with the exception of the question of the effectiveness of B & J's purported termination of the agreement in 1974, already being litigated in this court, and which were all ultimately litigated in good faith. Attorney's Fees These same considerations also cause the court to conclude that this is not an "exceptional case" within the meaning of 35 U.S.C. § 285.[47]See Faulkner v. Baldwin Piano & Organ Co., 561 F.2d 677, 685 (7th Cir. 1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978). Therefore, B & J's petition for attorney's fees is denied. Costs As the prevailing party, B & J is entitled to an award of costs. CONCLUSION Accordingly, the court holds that Hennessy has not proven the patents in suit invalid; that B & J has proven Hennessy to have committed unlicensed infringement of said patents by selling the accused devices as kits, and by making and selling them after its receipt of the letter from counsel for B & J dated September 16, 1974 in any form whatsoever; that B & J is entitled to an accounting to determine the amount of its damages; that B & J is entitled to an award of costs; that B & J is not entitled to an award of treble damages or attorney's fees; and that Hennessy is not entitled to an award of damages, costs, or attorney's fees. Therefore, final judgment is entered in favor of B & J on the liability questions found in the Amended Complaint and on the Counterclaim. This court retains jurisdiction herein solely for the purpose of conducting an accounting by Hennessy to B & J and, after the taking of said accounting, to enter a money judgment herein for and in favor of B & J against Hennessy in accordance with said accounting. It is so ordered. NOTES [1] The interior rings of tubeless tires are known as beads. [2] Tube tires are typically inflated in this manner. [3] Tire changers provided with factory installed tubeless tire inflation apparatus are called "OEM machines". The apparatus sold separately in a form suitable for retrofitting — i. e., installing them on tire changer machines already in the field — will be referred to as "kits". [4] 4 Deller's Walker on Patents § 286, at 237 also points out that "[t]he construction of a patent, after a disclaimer has been properly entered, must be the same as it would have been if the matter so disclaimed had never been claimed". (The propriety of the entry of the disclaimer filed in connection with the '469 patent has not been challenged in this suit.) [5] Claims 10, 20, 24, 25, and 27, all of which involved the use of an auxiliary device to create a mechanical seal over the entire window, were disclaimed in June, 1971. [6] It is only these claims with regard to which B & J alleges infringement. [7] Bishop contains only apparatus claims. However, "[a]nticipation by a prior patent is to be determined from the disclosure in the patent as contained in the specification and drawings, rather than from the language or precise scope of the claims". 1 Deller's Walker on Patents § 61, at 283 (2d ed. 1964). [8] While the language of the independent claims of the '491 patent is broad enough to cover an annular tube large enough to seal the window, this is not said in the claims to be necessary in order for the disclosed apparatus to work. Nor is it recommended, either in the apparatus claims or in the method claims. Indeed, the possibility of fashioning such a tube is no where alluded to in the patent. [9] It should be obvious that the court does not consider this to be a case in which "the general aspects [of the two devices] are the same and the difference in minor matters is only such as would suggest itself to one of ordinary skill in the art". Amphenol Corp. v. General Time Corp., 397 F.2d 431, 438 (7th Cir. 1968). [10] The court has also studied the disclosures of United States Patent 2,786,516, entitled "Bifurcated Bead Seating Device for Tubeless Tires", filed April 15, 1955, and issued to A. A. Schreiner on March 26, 1957; United States Patent 2,910,117, entitled "Method and Apparatus for Inflating a Tubeless Tire and Seating the Beads", filed April 23, 1956, and issued to U. D. Lamerson on October 27, 1959; United States Patent 2,918,115, entitled "Bead Seating and Inflating Device for Tubeless Tires", filed December 7, 1955, and issued to H. G. Twigford on December 22, 1959; United States Patent 3,366,153, entitled "Tire Bead Seating and Inflating Means for Tubeless Tire Casings", filed July 5, 1966, and issued to A. R. Allen on January 30, 1968; and United States Patent 3,461,938, entitled "Tire Mounting and Inflating System", filed March 9, 1967, and issued to J. L. Mueller on August 19, 1969. These patents were cited to the court at trial, but are not relied on in Hennessy's post-trial briefs. The court's conclusions as stated in the text are equally applicable to the prior art references cited above. [11] The file wrapper also indicates that Mueller, see footnote 10, supra, was considered by the Examiner. [12] The pertinent portion of the Bishop specifications reads as follows: Applicant prefers to use a cellular rubber for ring 80 which has communicating cells so that it is not completely impervious to air. By using this type of material for ring 80, applicant has found that sufficient inflationary air pressure can be created within the tire to cause the mounting apparatus to function properly while, at the same time, air will pass through ring 80 fast enough to substantially deflate the air chamber defined by applicant's apparatus after said tire is mounted in its ultimate position on the rim, to prevent any objectionable sudden discharge of air from said chamber when the closure member is removed from the tire and rim. [13] The court does not consider this to be a close case in which secondary considerations such as long felt need, failure of others, and commercial success should be weighed in assessing the validity of the '469 patent. However, as the fact finder in this case, the court does find that a long felt need did exist for an improved tubeless tire inflation apparatus that would work on the type of "problem" tires discussed in the test of this opinion. The search for "a better way" to inflate these tires was spearheaded by the rubber tire companies, particularly Firestone, whose efforts culminated in the Varvaro, Ranallo, and Bishop patents. However, this research did not succeed in solving the problem of providing a durable, cheap, efficient, easy-to-use inflator for use in the field to the satisfaction of those concerned with the inflation of tubeless tires. The technological breakthrough represented by the '469 patent succeeded in fulfilling this need, despite the fact that, as the evidence in this case demonstrates, at least some persons familiar with the tire inflation art did not even believe that Corless device could work. Finally, the court notes that while the Omega jet, BCI's commercial embodiment of the device claimed in the '469 patent, has not enjoyed overwhelming commercial success, the invention, as part of a tire changing, bead seating, and inflation apparatus, has enjoyed immense commercial success. [14] Hennessy does not contend that the '469 patent constitutes prior art with regard to the '705 patent under section 102(a) or section 103. [15] 5 Deller's Walker on Patents § 432, at 32 defines a continuation-in-part as an application filed during the lifetime of an earlier application filed by the same applicants repeating some substantial position or all of the earlier application and adding matter not disclosed in the earlier application. (footnote deleted). [16] Claim 14 is identical with claim I of the Ruhland patent. [17] 35 U.S.C. § 132 provides, in pertinent part, that [n]o amendment shall introduce new matter into the disclosure of the invention. [18] 37 C.F.R. § 1.118 states that [i]n original applications, all amendments of the drawings or specifications, and all additions thereto, must conform to at least one of them as it was at the time of the filing of the application. Matter not found in either, involving a departure from or an addition to the original disclosure, cannot be added to the application even though supported by a supplemental oath, and can be shown or claimed only in a separate application. [19] "New matter" is matter that an original application discloses to a person skilled in the applicable art. See Technion Instruments Corp. v. Coleman Instruments Corp., 385 F.2d 391, 393 (7th Cir. 1967); Application of Wolfensperger, 302 F.2d 950, 985, 49 CCPA 1075 (1962). The Manual of Patent Examining Procedure, 3rd Ed., instructs Examiners to "be on the alert to detect new matter", 706.03(o), and to reject amendments introducing new matter into pending applications. 608.04; 706.03(o). [20] Indeed, Charles Rummler, a witness for Hennessy whose sole area of expertise is patent law, virtually conceded at trial that the discontinuous ring found in claims 14-16 was disclosed by the '705 patent. [21] The court also finds that these claims meet the tests of 35 U.S.C. § 120, see Bendix Corp. v. Balax, Inc., 421 F.2d 809 (7th Cir.), cert. denied, 399 U.S. 911, 90 S.Ct. 2203, 26 L.Ed.2d 562 (1970), Technion Instruments Corp. v. Coleman Instruments Corp., 385 F.2d 391, 393 (7th Cir. 1967), such that they are entitled to enjoy the effective filing date of the '705 patent. [22] 35 U.S.C. § 120 reads as follows: An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States ... by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application. [23] Hennessy does not contend otherwise. [24] Claim 13 was inserted into the application for the '705 patent by an amendment filed with the Patent Office July 29, 1971. By allowing the claim, the Examiner found it not to constitute "new matter" with respect to the application. Although it questions the permissible breadth of claim 13, Hennessy has not challenged this determination, and the court concludes that the presumption of its correctness has not been rebutted. [25] The Corless inflater does not constitute prior art with regard to the '871 patent. If it did, the court would find the combination claims invalid under section 103, despite the difficulties encountered by Hennessy's engineers in fashioning a device embodying the combination. [26] The Reese court did not consider the impact of Williams Manufacturing Co. upon the rule of Lincoln Engineering. [27] Hennessy does not contend that any prior art references other than those previously mentioned in this opinion render the '871 patent's claims void for obviousness. [28] Coats and Hennessy are no longer making or selling the Inflat-Air device. The Air-Flate structure was first developed by Hennessy in mid-1973. [29] If this were not so, Application of Jentoff, 392 F.2d 633, 640-641, 55 CCPA 1026 (1968), holds that the proper course is not to invalidate any subsequently filed claims on the ground that they impermissibly attempt to avoid a file wrapper estoppel, but to construe them as subject to the estoppel. Hennessy has, in this case, requested that the court follow this course of action. [30] It may indeed be true, as that letter indicates, that without the one mechanical seal, the Bishop device would not work. Such, in any case, is the teaching of that patent. Further, if it did function without a mechanical sealing element, the Bishop device would be working according to fundamentally different principles than those taught by the patent. [31] The court notes that Hennessy has offered the testimony of no expert with comparable expertise in the area of fluidics. [32] Because the court has found actual infringement, it will not consider B & J's estoppel argument. [33] The court believes that this question was not broached during the negotiations leading to the execution of the license agreement because, prior to the signing of that agreement, Hennessy did not intend to rely upon the license and did not have any idea about whether or not the device could be made and sold as a kit. [34] If, as seems reasonable, a kit could be made that would fit on tire changers made by Coats and still fit on those made by other companies, such a grant would have totally eliminated Caulkins' potential market. [35] Obviously, the court also finds that Caulkins had no reason to suspect that the use of the word "incorporating" in the license agreement was ambiguous in the sense now suggested by Hennessy. [36] It had been designed to be able to be made and sold in kit form. [37] Section 8 of the license agreement states that [i]f any breach or default in respect of any of the terms of this Agreement by either of the parties shall occur, the other of said parties shall have the right to give notice in writing specifying in detail the nature of the breach or default and if the alleged breach or default has, in fact, occurred and is not cured within thirty (30) days of the mailing of the notice, the other of said parties shall have the right to terminate this Agreement forthwith. [38] Hennessy refused to accept B & J's cancellation of the license, and, even after it ceased tendering checks to B & J, it continued to accrue royalty payments on its books until the contractual maximum of $150,000 was reached. This occurred in January, 1974, if royalties on cover sales of kits and OEM machines equipped with the Inflat-Air inflaters are to be included. The $150,000 figure was reached in August, 1974, in terms of royalties on the OEM machines only. The court has not been informed as to whether any royalties were ever so accrued by Hennessy for Air-Flate devices. [39] Section 20 of the license agreement provides: THIS INSTRUMENT contains the entire and only agreement between the parties and it supersedes and merges all pre-existing agreements; any representation, understanding, promise or condition not expressly incorporated herein shall not be binding upon either party. [40] Moreover, the testimony in question concerned the implications of Hennessy's manufacturing or selling hand-held inflaters and inflation stands, objects which Hennessy had sought the right to make and sell, not kits, which subject never came up during the negotiations. [41] The evidence does not establish that, during the negotiations leading to the execution of the license agreement, the parties connected the question of a limitation on royalties to the question of the scope of the grant. Rather, it seems that Hennessy was trying to obtain most possible rights and pay the least possible money, while Caulkins was attempting to relinquish the smallest possible portion of his patent monopoly and get the most possible money for licensing what he wished to license. In other words, it appears that these were two issues that were separately negotiated. This is not surprising in light of the fact that Caulkins viewed the scope of the grant as non-negotiable while Hennessy hoped never to have to rely on the rights obtained under the license. [42] B & J also argues that the losses that it has allegedly incurred as a result of Hennessy's infringement of the patents cannot be recouped by means of recovery in an infringement suit. Even assuming that B & J's aspirations would be relevant in this context, the court disagrees. The court rejects B & J's claim that it wished to go into the business of manufacturing and selling tire changing machines. It is of the opinion that B & J purchased the rights under the patents from BCI in order to obtain the royalty payments that it hoped would flow to it from its licensees' sales of bead seating devices (hand-held or otherwise) utilizing Corless' invention. The court believes that B & J did not buy BCI's inventory of hand-held rings because it wished to enter the business of selling them itself, but because BCI wanted, as part of the overall transaction, to get out of that business. Therefore, an award of an accounting for the sales of infringing, non-licensed products could make B & J whole. [43] This notice, which appears to have been put on every Inflat-Air structure sold or delivered by Hennessy between the time of the first delivery of Inflat-Air devices in late November or early December, 1971, and the removal of the notices in September, 1973, read as follows: ONE OR MORE OF U.S. PATENTS 3,552,469 & OTHER PATENTS PENDING. The notice was never amended to reflect the issuance of the '705 patent. It had been removed from the Inflat-Air structure prior to the issuance of the '871 patent. [44] Hennessy does not suggest, and the court does not find, that B & J waived its right to claim or is estopped by virtue of its delay in providing the notice of breach from asserting, that Hennessy's failure to mark the accused inflate devices constituted a breach of the agreement. In this connection, the court notes that B & J regarded the contract as previously cancelled, and that Hennessy has shown no reliance on, or perception by it of, any acquiescence on the part of B & J in its failure to mark these structures. [45] In fact, Hennessy continued to accrue royalties on its books for their sales of Inflat-Air devices until some time in 1974. [46] 35 U.S.C. § 284 provides: Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court. When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances. [47] 35 U.S.C. § 285 states that [t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.

88 Ill. App.3d 272 (1980) 410 N.E.2d 404 THE PEOPLE ex rel. JULIA LARSON et al., Plaintiffs-Appellants, v. EDWARD J. ROSEWELL, Treasurer and Ex-Officio County Collector of Cook County, Defendant-Appellee. Nos. 79-1086, 79-1217 cons. Illinois Appellate Court — First District (2nd Division). Opinion filed September 2, 1980. Bernard Allen Fried, of Chicago, for appellants. Bernard Carey, State's Attorney, of Chicago (Paul P. Biebel, Jr., and Michael F. Baccash, Assistant State's Attorneys, of counsel), for appellee. Judgment reversed. Mr. PRESIDING JUSTICE PERLIN delivered the opinion of the court: This appeal is a consolidation of two separate actions involving the construction of section 235a of the Revenue Act (Ill. Rev. Stat., 1978 Supp., *273 ch. 120, par. 716a), commonly referred to as the Scavenger Act. At issue is whether the Scavenger Act's provision for the publication by the county collector of "an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or part of the general taxes for each of 5 or more years are delinquent" is directory or mandatory, such that the county collector could choose to omit from the advertisement certain properties because actions for the unpaid taxes were pending against the owners of those properties. For reasons hereinafter set forth, we reverse the judgment of the circuit court of Cook County. Because the nature of the question presented for review does not require an elaborate recitation of the factual bases for each action herein consolidated, an abbreviated version will suffice. Approximately 100 parcels of property upon which the general taxes were delinquent for the year 1977 and for at least four years prior thereto were omitted by the county collector from his advertisement giving notice of the intended application for judgment for sale pursuant to the Scavenger Act. Plaintiffs-appellants Julia Larson and others filed a petition for a rule to show cause why the county collector "should not be held to comply with" the provisions of the Scavenger Act and include in his advertisement those 100 parcels. The trial court dismissed the petition with prejudice finding that "[t]he proper construction would be to view [section 235a] as directory rather than mandatory, and permit [the county collector] to use his judgment in utilizing any appropriate method of dealing with tax delinquent property." Objector-appellant, Northern Illinois Industrial Properties, Inc., filed an objection to the county collector's application for judgment and order of sale requesting that the trial court dismiss the application or modify the application to include the omitted 100 parcels. The trial court held "that the duties imposed on the County Collector under the provisions of the Scavenger Act, Section 235a, as amended, of the Revenue Act, are not mandatory but discretionary" and accordingly overruled the objection. The Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 482 et seq.) provides two basic methods to enforce the payment of taxes levied upon real property: an in rem proceeding against the property; and an in personam proceeding against the owner. The in rem proceeding encompasses two different and distinct statutory actions. The first type of in rem proceeding commonly referred to as the annual tax sale, is authorized by section 225 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 706). Such a sale for the full amount of delinquent taxes may occur "[a]t any time after the first day of September next after all of such delinquent taxes on lands and lots shall become due in any year, * * *." The second type of in rem proceeding is an action instituted pursuant to section 235a of the Revenue *274 Act (Ill. Rev. Stat. 1977, ch. 120, par. 716a) which is commonly referred to as the Scavenger Act. Section 235a, unlike section 225, requires that tax delinquency continue for a period of five years or more. Property subject to the Scavenger Act is sold to the highest bidder, even though the bid may be less than the full amount of the unpaid taxes. Section 275 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 756) authorizes an action by the county board to recover from the owner of tax delinquent property which has been forfeited to the State[1] the full amount of taxes due. Normally the entire tax liability for real estate would be met through a judgment and sale of the property pursuant to section 225. (People v. Chicago Title & Trust Co. (1979), 75 Ill.2d 479, 486, 398 N.E.2d 540.) However, in People v. Chicago Title & Trust Co., our supreme court at pages 486-87 acknowledged the limitations of the tax sale. "[These cases] have arisen however, because, for an increasing number of inner-city parcels, the marketable price is well below the outstanding tax bills. (See J. Lawlor, Real Property Tax Delinquency and the Rehabilitation of Multi-Family Housing Stock in Chicago, Illinois: The Role of the Collection Provisions of the Illinois Revenue Act, 26 De Paul L. Rev. 1 (1976).) There simply are no buyers willing to pay taxes in order to obtain the property. As a consequence, the property has been forfeited to the State and the tax bills remain unpaid." The Revenue act apparently anticipates that some property will not be purchased at the annual tax sale and therefore will be forfeited to the State. As a result supplementary statutory procedures such as the action for unpaid taxes and the scavenger sale were enacted to serve as a "back stop" for property which was not purchased at the annual tax sale. Section 275 which authorizes the action for unpaid taxes provides in pertinent part: "The county board may, at any time, institute suit in a civil action in the name of the People of the State of Illinois in the circuit court for the whole amount due for taxes and special assessments on forfeited property; * * *." (Emphasis supplied.)[2] Section 235a, the Scavenger Act, provides in pertinent part: "At the same time the County Collector annually publishes an advertisement giving notice of the intended application for judgment for sale of lands and lots for unpaid general taxes as provided in Section 225 of this Act, he shall in counties with a population of *275 2,000,000 or more, and shall in other counties if the county board by resolution so orders, also publish an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or a part of the general taxes for each of 5 or more years are delinquent as of the date of the advertisement. In no event, however, may there be more than 2 consecutive years without a sale under this Section. The term delinquent also includes forfeitures. The County Collector shall include in the advertisement and in the application for judgment for sale under this Section the total amount of all general taxes upon those tracts of land or lots which are delinquent as of the date of the advertisement. However, in lieu of a single annual advertisement and application for judgment for sale under this Section the County Collector may, from time to time, beginning on the date of the publication of the advertisement giving notice of the intended application for judgment for sale of lands and lots for unpaid general taxes as provided in Section 225 of this Act and prior to the first day of August of the next year, publish separate advertisements and make separate applications, in each which advertisement and application shall be included the tracts of lands and lots required to be sold pursuant to this Section which are described in one or more volumes of the delinquent list. Such separate advertisements and applications shall, in the aggregate, include all the tracts of land and lots which otherwise would have been included in the single annual advertisement and application for judgment for sale pursuant to this Section." Section 235a also provides that "[t]he remedy herein provided is in addition to other remedies for the collection of delinquent taxes." The general rule governing whether the provisions of statute are to be construed as mandatory or directory was enunciated in French v. Edwards (1871), 80 U.S. (13 Wall.) 506, 511, 20 L.Ed. 702, 703, and expressly adopted by our supreme court in People v. Jennings (1954), 3 Ill.2d 125, 127, 119 N.E.2d 781, and in Andrews v. Foxworthy (1978), 71 Ill.2d 13, 19-20, 373 N.E.2d 1332, as follows: "There are, undoubtedly, many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions *276 prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise." In People v. Jennings the State sued the defendant to recover personal property taxes for 1951. However, the list of personal property assessments for 1951 had not been published as ordained by section 103 of the Revenue Act (Ill. Rev. Stat. 1949, ch. 120, par. 584).[3] The court, quoting from Lyon v. Alley (1889), 130 U.S. 177, 185, 32 L.Ed. 899, 9 S.Ct. 480, opined at pages 127-28: "`The provisions of statutes as to the form and mode of assessments, as to tax lists, and the place where the tax lists are to be deposited, are, according to the highest authority, designed for the benefit of the taxpayers and the protection of their property from sacrifice.'" In holding that the provisions of section 103 were mandatory, the Jennings court reasoned at page 128: "Publication of the assessment roll is clearly not designed for the guidance of officers or the maintenance of order, system and dispatch in proceedings. Its purpose, like that of provisions concerning notice, is to afford the taxpayer information and an opportunity to ascertain whether the assessment is excessive or disproportionate. In view of its nature, therefore, the requirement is prima facie mandatory rather than directory * * *." • 1 We believe that an analysis of the distinction between mandatory and directory statutes (particularly those prescribing conduct of public officials), together with a close examination of the language, nature and purpose of the Scavenger Act, considered in light of the above authority, indicates that the provisions of the Scavenger Act are to be construed as mandatory. • 2 The Scavenger Act itself contains the words "shall * * * publish." The use of the words "shall" or "must" is generally regarded as mandatory. (Andrews v. Foxworthy, at 21.) However, the term "shall" does not have fixed or inflexible meaning. It can, in fact, be construed as meaning "may," depending on the legislative intent. However, "[w]here the word is employed with reference to any right or benefit to anyone and the right or benefit depends upon giving a mandatory meaning to the word, it cannot be given a permissive meaning * * * [Citations.]" (Clark v. Patterson *277 (1905), 214 Ill. 533, 539, 73 N.E. 806; cf. Cooper v. Hinrichs (1957), 10 Ill.2d 269, 272, 140 N.E.2d 293; 73 Am.Jur.2d Statutes § 22 (1974).) Thus, proper interpretation of the provision cannot simply be based upon the language; it must be grounded upon the "nature, objects and the consequences which would result from construing it one way or another." Carrigan v. Illinois Liquor Control Com. (1960), 19 Ill.2d 230, 233, 166 N.E.2d 574. • 3 In summary, when a statute prescribes the performance of an act by a public official or public body, the question of whether it is mandatory or directory depends upon its purpose. If the provision merely directs a manner of conduct for the guidance of the officials or specifies the time for the performance of an official duty, it is directory, absent negative language denying the performance after the specified time. If, however, the conduct is prescribed in order to safeguard a person's rights, which may be injuriously affected by failure to act within the specified time, the statute is mandatory. Andrews v. Foxworthy, at 21; Carrigan v. Illinois Liquor Control Com., at 233; see 72 Am.Jur.2d State & Local Taxation § 709 (1974). Provisions for publication and notice are designed for the benefit of the taxpayers. Publication under the Scavenger Act appears to have been designed not for the guidance of public officers but to afford taxpayers notice that all or part of the general taxes upon their property for each of five or more years are delinquent and that their property is subject to the judgment and sale provisions of the Scavenger Act. Publication was also designed to afford the taxpayers an opportunity to object to the proposed sale as provided in section 235 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 716) and to protect "their property from sacrifice" (Jennings, at 128). In light of the nature and purpose of the publication requirement, therefore, we must conclude that the provisions of the Scavenger Act are mandatory and require strict compliance. Our interpretation also appears to be in agreement with an opinion issued by the Illinois Attorney General in 1943. (1943 Ill. Op. Att'y Gen. 220.) The Attorney General's opinion was requested as to whether it would be compulsory upon all counties, regardless of population, to comply with the provisions of section 235a. It was the opinion of the Attorney General "that the legislature contemplated that the provisions of the section were to be construed as mandatory." (1943 Ill. Op. Att'y Gen. 220, 224.) In so opining the Attorney General noted that section 235a also provides that "`the remedy herein provided shall be in addition to other remedies for the collection of delinquent taxes.'" (1943 Ill. Op. Att'y Gen. 220, 224.) He further opined at page 224: "In considering the entire Revenue Act, I do not think that this provision affects in any particular the mandatory construction of [section 235a]. *278 As I view the statute, this provision means that any of the other remedies for the collection of delinquent taxes may be pursued, until such time as taxes become delinquent for ten years. It then becomes mandatory, when taxes are delinquent for ten years, to comply with [section 235a]. It clearly appears that it was the intention of the legislature to make a final disposition of taxes which are delinquent for ten years, and to prevent taxes from becoming delinquent for more than ten years."[4] In so concluding, the Attorney General reasoned: "An examination of the provisions of [section 235a] discloses that in its enactment the legislature evidently intended to provide a method for the final disposition of tax delinquents in order that the county might profitably dispose of its delinquent properties and eliminate the expense of continually carrying such delinquent items on the tax books." 1943 Ill. Op. Att'y Gen. 220, 223. It should again be emphasized that the question propounded to the Attorney General was whether it would be compulsory upon all counties, regardless of population, to comply with the provisions of section 235a. Although the question propounded to the Attorney General and the issue presently before this court are not identical, it may be persuasively argued that, in the words of the Attorney General, "any other remedies for the collection of delinquent taxes may be pursued, until such time as taxes become delinquent for [five] years. It then becomes mandatory, when taxes are delinquent for [five] years, to comply with [section 235a]." 1943 Ill. Op. Att'y Gen. 220, 224. We are not suggesting, however, that an action for unpaid taxes once instituted cannot be pursued to final judgment if during the pendency of the action the taxes become delinquent for five years.[5] That issue is not before us. Nor are we suggesting that our interpretation should jeopardize an action for unpaid taxes and frustrate attempts to collect the full amount of unpaid taxes. That issue is likewise not before us. We hold only that the county collector is mandated by the Scavenger Act to "publish an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or part of the general taxes for each of 5 or more years are delinquent." We express no opinion as to whether every parcel included in such advertisement must be the subject of a judgment for sale; the Scavenger Act provides that "[n]o sale of lands or lots pursuant to this Section shall be final until confirmed by the Court * * *." Ill. Rev. Stat. 1977, ch. 120, par. 735a. *279 The State appears to argue that the scavenger sale fails to profitably dispose of tax delinquent properties. We are not unaware that real property tax delinquency in Cook County has been rising steadily. (Lawlor, at 2-3.) Although a portion of this increased delinquency may be attributed to an increase in the tax burden, the increase may also reflect serious problems in the tax collection apparatus. There are an increasing number of delinquent parcels failing to attract bidders at the annual tax sale. For example, Cook County Treasurer Rosewell reported that 40,266 parcels were not purchased at the annual tax sale for 1974 taxes and thus forfeited. This compares to 34,871 forfeitures for 1973, 20,601 for 1972 and 18,102 for 1971. (Lawlor, at 3.)[6] The result is that a growing number of parcels of land continue in the possession of property owners who do not pay their share of the cost of municipal services. Nor are we unaware that at the scavenger sale, sale is to the highest bidder, even though the bid may be less than the full amount of the taxes. The sale price is often low since the property has been in the hands of a tax delinquent property owner for five years and, in the case of improved property, is likely to be in a somewhat dilapidated condition. Between 1967 and 1973, the 6,000 parcels sold at the scavenger sale averaged bids of only $143. (Lawlor, at 8.) In terms of dollars, in 1971 there was $54,412,375.87 in uncollected property tax bills in Cook County. In 1973 the delinquency cost the county a net amount of $73,119,410.79. However, the State's apparent contention that the scavenger sale fails to profitably dispose of tax delinquent properties misconceives the function of this court. While we do not dispute that a revenue statute has, as its foundational purpose, the collection of taxes to defray the cost of governmental services, such matters as the effective implementation of the goals of the Revenue Act must be addressed to the General Assembly, which is entrusted with the duty of determining public policy and promoting the general welfare. Based upon the foregoing, we conclude that the Scavenger Act's provision for the publication by the county collector of "an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or part of the general taxes for each of 5 or more years are delinquent" is mandatory. We hold, therefore, that the county collector could not lawfully omit from the advertisement certain properties because actions for the unpaid taxes were pending against the owners of those properties. Reversed. DOWNING and STAMOS, JJ., concur. NOTES [1] Section 246 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 727) provides that "[e]very tract or lot so offered at public sale [the annual tax sale], and not sold for want of bidders * * * shall be forfeited to the State of Illinois * * *." [2] Section 27a of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 508a) imposes liability upon the "owner" of real estate for unpaid taxes on that land. [3] Section 103 provides that the appropriate officer "shall publish the assessment of personal property in full" in a public newspaper on or before July 10. [4] Section 235a was amended by Public Act 80-1407, par. 1, effective August 25, 1978, to substitute 5 years for 10 years. [5] As a practical matter the prosecution of an action for unpaid taxes commenced well before the fifth year of delinquency may not be reduced to final judgment by the fifth year of delinquency. [6] Published public records have failed to provide more current statistics.

105 F.3d 663 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Cedric L. ROULETTE, Appellant. No. 96-2542WM. United States Court of Appeals, Eighth Circuit. Submitted Dec. 31, 1996.Filed Jan. 8, 1997. Before FAGG, WOLLMAN, and MURPHY, Circuit Judges. PER CURIAM. 1 Cedric L. Roulette appeals the sentence imposed by the district court. Having reviewed the record, we reject Roulette's contention that the district court improperly enhanced Roulette's sentence for possession of a firearm. We also reject Roulette's argument that the sentence imposed was vindictive. The district court's sentence was correct and further discussion is not warranted. We affirm. See 8th Cir. R. 47B.

594 F.Supp. 514 (1984) NORFOLK SOUTHERN CORPORATION, et al., Plaintiffs, v. Charles M. OBERLY, III, et al., Defendants. Civ. A. No. 84-330. United States District Court, D. Delaware. September 25, 1984. *515 David S. Swayze, and Susan C. Del Pesco, of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for plaintiffs; Jeffrey S. Berlin, David E. Menotti, Russell E. Pommer, Robert C. Fisher, and Mark E. Martin, Elizabeth A. Campbell, Verner, Lipfert, Bernhard and McPherson, Chartered, Washington, D.C., A. Gayle Jordan, Norfolk, Va., of counsel. Fred S. Silverman, Regina M. Mullen, John J. Polk, and Ellen R. Chaikin, Dept. of Justice, Wilmington, Del., for defendants. OPINION LONGOBARDI, District Judge. The Plaintiffs, Norfolk Southern Corporation ("Norfolk Southern") and Norfolk Southern Marine Services, Inc. ("Marine Services"), seek a preliminary injunction against John E. Wilson ("Wilson"), Delaware's Secretary of the Department of Natural Resources and Environmental Control *516 ("DNREC"), and Charles M. Oberly, III ("Oberly"), Attorney General of the State of Delaware. More particularly, Plaintiffs seek to enjoin the Defendants and their agents and employees from enforcing that portion of the Delaware Coastal Zone Act ("CZA"), 7 Del.C., Ch. 70, that has been held applicable to their proposed vessel-to-vessel coal top-off project in the Delaware Bay and requiring Wilson to process their pending applications for air pollution control permits under Delaware Environmental Protection Law, 7 Del.C., Ch. 60. They contend the CZA is unconstitutionally violative of the commerce clause. CZA was enacted by the Delaware Legislature in 1971 and the avowed purpose of the Act was to control the location, extent and type of industrial development in Delaware's coastal areas. The control of such industrialization, it was hoped, would better protect the natural environment of the bay and coastal areas and safeguard their use primarily for recreation and tourism. 7 Del.C. ß 7001. Section 7001 also provided: ... that offshore bulk product transfer facilities represented a significant danger of pollution to the coastal zone and generate pressure for the construction of industrial plants in the coastal zone, which construction is declared to be against public policy. For these reasons, prohibition against bulk product transfer facilities in the coastal zone is deemed imperative. (emphasis added). "Bulk product transfer facility" is defined as "any port or dock facility, whether an artificial island or attached to shore by any means, for the transfer of bulk quantities of any substance from vessel to onshore facility or vice versa. Not included in this definition is a docking facility or pier for a single industrial or manufacturing facility for which a permit is granted or which is a nonconforming use. Likewise, docking facilities for the Port of Wilmington are not included in this definition." 7 Del.C. ß 7002. Administration of the Act is by the Secretary of DNREC, Wilson, and appeals from his decisions are heard first by the State Coastal Zone Industrial Control Board ("Board"), section 7007(a), whose decisions are binding on all the agencies of the State of Delaware. Under section 7010, the Attorney General, Oberly, is responsible for enforcing the CZA, for using cease and desist orders and for recovering monetary penalties that can go as high as $50,000 per day of violation. Appeals from the Board are heard by the Superior Court of Delaware and appeals from that court are heard in the Supreme Court of Delaware. The Plaintiffs became interested parties in a proposal to transport and sell coal on the international market. Existing port facilities on the East Coast, however, allow only the loading of ordinary sized colliers or partial loading of super colliers. Super colliers are ships with coal carrying capacities ranging from 100,000 to more than 160,000 deadweight tons ("DWT"). Super colliers are obviously much more cost effective to operate than smaller vessels provided they are fully loaded. Because the super colliers cannot be fully loaded from any East Coast port, they would have to be "topped-off", the loading of additional coal to ship's capacity, in deeper water away from the existing ports. Big Stone Anchorage is the sole naturally protected anchorage with a depth of 55 feet or more between Maine and Mexico. It lies within the Delaware Bay and well within the zone protected by CZA. The anchorage is presently utilized for oil lightering, the transfer of oil from super tankers to smaller vessels capable of navigating East Coast rivers and harbors. Plaintiffs' plan is to partially load super colliers at existing ports and then move the ships to Big Stone Anchorage. Two specially constructed, fully loaded coal barges, part of the top-off project, will then deliver their coal to the holds of the super colliers. After unloading, the barges will return to local ports for loading preparatory to the next top-off job at Big Stone Anchorage. It is estimated by the Plaintiffs that each of the two barges will be capable of making 60 such trips per year and, when the *517 project is fully established, the top-off project will be handling 3,000,000 tons of coal annually from Big Stone Anchorage. These are necessarily projections only because there is no comparable service elsewhere in the United States which could provide the basis for empirical data. The volume of tonnage is contested by the Defendants who have supplied the Court with articles denigrating the value of a top-off project in the United States. The reports are skeptical that there will be a substantial foreign market for American coal. Among the premises for the conclusion is that costs of mining and interstate shipment, primarily by companies like those associated with Norfolk Southern, push the costs of American coal beyond the competitive world-wide market. Interestingly, the conclusions are reached without material regard to cost of international shipping, a premise that strikes at the heart of Plaintiffs' projections for a world market for American coal shipped from Big Stone Anchorage. Pursuant to 33 U.S.C. ß 471, Big Stone Anchorage is subject to the jurisdiction of the United States Coast Guard. In 1982, it proposed to change the designation of Big Stone Anchorage to a "general anchorage." Previously, the "specific" purpose of the anchorage was to allow deep draft tankers to anchor and lighter their cargoes of imported oil. The new Rule was designed to permit "shippers transporting commodities other than oil to use [Big Stone Anchorage] as both a holding anchorage and an anchorage for lightering." 33 C.F.R. 110.157. In response to the notice, the Governors of Delaware, Maryland and Pennsylvania endorsed the proposed change and specifically endorsed the coal top-off project. Comments in support of the proposal were filed by affiliates of the Plaintiffs, operators of railroads and by exporters of coal. DNREC did not endorse the proposal, noting that vessel-to-vessel coal transfer posed the potential for water pollution and suggesting that the Coast Guard determine the environmental impact of coal top-off operations at the anchorage. The Coast Guard formally changed the designation of Big Stone Anchorage to a "general anchorage" in May, 1983. 48 Fed.Reg. 23,636 (1983). It is not absolutely clear from the present record but there are indications that what prompted the Coast Guard to change the designation of the anchorage could have been based in part on the efforts by one J. Patrick Dowd, a Vice-President of Coastal Barge Corporation ("Coastal Barge") and President of Coal Logistics Corporation ("Coal Logistics"). Dowd and the corporations are not parties to this litigation but they play a major role in the scenario that covers this federal action. Coastal Barge, however, is a party to a state court action that is now pending in the Supreme Court of Delaware. A decision in that appeal could very well moot this federal action. (The Court will deal with that issue later in this opinion.) Dowd started thinking about a coal top-off operation in 1981. (Transcript of Superior Court hearing, August 7, 1984, p. 10, hereinafter referred to as "Super. Trans.") Because oil lightering had been in process in the bay for many years, he saw no reason why coal top-off could not be utilized. He commenced negotiations with Norfolk Southern whose subsidiaries move more export coal than any other shipper in the United States. Super.Trans., p. 12. Somewhat later, around October, 1982, Dowd met with David Hugg of the DNREC together with three Japanese coal buyers. The purpose of the meetings was to get a feel for Delaware's reaction to the project. Although environmental concerns were evident, as corroborated by Hugg's earlier letter to the Coast Guard, Hugg assured Dowd that the CZA was not applicable to the project. Subsequent visits raised no concerns about the applicability of CZA. After the Coast Guard approved the designation for the anchorage, Dowd commenced a series of complicated financial arrangements and business agreements that are the basis for this claim of irreparable harm. First, Lamberts Point Barge Co., Inc., a wholly owned subsidiary of Norfolk Southern, ordered the construction of Thoroughbred Topper *518 ("Topper"), a new 35,000 ton barge. Norfolk Southern has approximately 5 million dollars invested in the vessel which is also subject to a permanent mortgage of $15,564,000. In William J. Romig's statement dated August 17, 1984, he said Topper was chartered by Marine Services. Marine Services then chartered the barge "Producer", a 21,000 ton converted tank barge, from Coastal Carriers Corporation ("Coastal Carriers"), a company affiliated with Coastal Barge. Marine Services chartered the oceangoing tug "Five Brothers" from Coast Tug No. 1 Limited Partnership in which Coastal Barge is general partner. Marine Services engaged Coastal Barge to operate the three vessels and then engaged Coal Logistics to manage the top-off project. Coal Logistics is a company affiliated with the Dowd interests. All of these things occurred between August 17 and August 19, 1983. Within two months thereafter, the principals claim they were aware of their jeopardy under the CZA for the first time. Statements by public officials questioning the legality of Plaintiffs' operation appeared in the local press. Dowd and his associates called the Governor's office and, as a result, a meeting with public officials ensued. It would be fair to characterize the meeting as unsettling and inconclusive. There were some questions that remained to be answered. The controversy continued to brew until in February, 1984, Wilson suggested that Coastal Barge submit an application to DNREC for a "Delaware Coastal Zone Act Status Decision." If the principals did not actually know previous to this time that the CZA was implicated, there is no question about their knowledge of such after they received Wilson's letter. And like their inaction in the early fall of 1983, just eight weeks after their extensive financial arrangements had been made, they similarly did nothing to mitigate their losses or to stay the various contracts even for a forfeiture fee until many months later when the barges were put to alternative uses. Even at that, it is costing Marine Services about $11,000 per day. Norfolk Southern's loss is a highly speculative and incalculable loss. They contend their railroad subsidiaries are losing gross revenues because they are not shipping coal from Appalachian coal mines to Norfolk for the top-off project. One day after Wilson's letter, on February 21, 1984, Coastal Barge submitted an application for a status decision. One day later, February 23, 1984, Wilson issued a status decision in which he concluded that the top-off project was not a "bulk project transfer facility" within the meaning of section 7002(f) of the CZA. The decision did not purport to relieve Coastal Barge of the environmental protection prerequisites of 7 Del.C., Ch. 60. On March 7, 1984, there was an appeal to the Board and they rendered a decision on May 7, 1984. The Board reversed Wilson and held that the Plaintiffs' proposed top-off project constituted a "bulk product transfer facility" as construed by section 7002(f) of the CZA and, consequently, the project is prohibited by section 7003. On May 15, 1984, Coastal Barge filed an appeal to the Superior Court. In an attempt to accelerate the appellate process, the parties were able to convince the court to certify the question in issue to the Supreme Court. The Supreme Court rejected certification and, thereafter, the Superior Court decided the issue on August 29, 1984. It affirmed the decision of the Board. In the meanwhile, Plaintiffs filed this action for declaratory judgment and injunctive relief on June 15, 1984, but did not move for injunctive relief until August 20, 1984. The Plaintiffs contend that the state's decision construing their top-off project as a "bulk product transfer facility" and, therefore, a prohibited activity under the CZA, constitutes an unlawful discrimination against interstate commerce. Alternatively, the Plaintiffs contend that if the statute is not construed as a per se prohibition of interstate commerce, then the enforcement of the Act to this particular activity imposes unconstitutional burdens on *519 interstate or foreign commerce. They contend that the constitutional violations establish their burden of proving probable success on the merits of their claim and that the violation of the commerce clause is per se proof of the irreparable harm necessary to establish the right to preliminary injunctive relief. Alternatively, they argue that the large sums of money being lost daily also establish irreparable harm. The Defendants, on the other hand, deny that the prohibition of this coal top-off project is a per se prohibition of interstate commerce and that the burdens on interstate commerce are amply displaced by the benefits derived from the enforcement of the CZA. They also suggest that the prohibition of the top-off project should be construed by a standard similar to that used in commerce clause cases involving highway safety, i.e., the "deferential approach." They contend that the state owns the subaqueous land at Big Stone Anchorage and has the inherent right to control its use. Finally, they contend that Congress' enactment of the Coastal Zone Management Act, 16 U.S.C. ß 1451, et seq., and the receipt of benefits under that bill constitutes the Federal government's approval of Delaware's CZA. The approval, they allege, precludes any constitutional attack on the CZA. A preliminary injunction is not granted as a matter of right. Eli Lilly and Co. v. Premo Pharmaceutical Labs., 630 F.2d 120, 136 (3rd Cir.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). It is an extraordinary remedy and should be sparingly granted. Dorfmann v. Boozer, 414 F.2d 1168 (D.C.Cir.1969); Wyrough & Loser, Inc. v. Pelmor Laboratories, Inc., 376 F.2d 543, 547 (3d Cir.1967). "There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing an injunction; it is the strong arm of equity, that never ought to be extended unless to cases of great injury...." Detroit News. Pub. Ass'n v. Detroit Typo. Un. No. 18, etc., 471 F.2d 872, 876 (6th Cir.1972) (quoting 3 Barron & Holtzoff, Federal Practice and Procedure (Wright, Ed.) section 1731). A preliminary injunction requires a strong showing of necessity. A.O. Smith v. F.T.C., 530 F.2d 515, 527 (3d Cir.1976). The Third Circuit has identified four factors which the Court must weigh in exercising its discretion whether to grant the injunction: [T]he moving party must generally show (1) a reasonable probability of eventual success in the litigation and (2) that the movant will be irreparably injured pendente lite if relief is not granted.... Moreover, while the burden rests upon the moving party to make these two requisite showings, the district court "should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunctions, and (4) the public interest." Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir.1975) (citations omitted); Constructors Ass'n of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir.1978). The term "irreparable injury" is somewhat misleading since irreparability is only part of the requirement. The plaintiff must also show that the injury is "special, peculiar or work[s] an onerous hardship." Coca-Cola Bottling Co. of Shreveport v. Coca-Cola, 563 F.Supp. 1122, 1141 (D.Del. 1983); See, A.O. Smith v. F.T.C., 530 F.2d at 527 ("the threatened injury must be in some sense `peculiar'"). In this case, Plaintiffs emphasize two primary sources of irreparable injury. First, they assert that Marine Services is losing about $11,000 per day in fixed costs for ships which cannot be used for their intended purpose. Second, Plaintiffs argue that deprivation of their constitutional rights under the commerce clause in itself constitutes irreparable injury.[1] *520 Any monetary loss suffered by Plaintiffs due to the allegedly unconstitutional statute will not be recoverable if Plaintiffs ultimately prevail on the merits. Their injury is, therefore, irreparable in the sense that it is unrecoverable immediately. If they prevail on the merits, however, it could very well be recovered from profits over an extended period of time. The question is whether their injury is sufficiently "peculiar" to satisfy the requirements for a preliminary injunction. Plaintiffs erroneously characterize their injury as being equal to the fixed costs of the ships intended for use in the topping-off project less the revenues they have been able to derive from using the ships for other purposes. The fixed costs cannot constitute Plaintiffs' injury from denial of the injunction since the fixed costs must be incurred whether or not the injunction is granted. The true monetary injury to Plaintiffs is equal to a loss of profits or at least greater revenues. (And this assumes their operation can pass the scrutiny of the air and water pollution standards under 7 Del.C., Ch. 60, a statute which is not under attack in this law suit. In light of the present record, their ability to comply with air and water pollution regulations may be most difficult to prove. The issue is one that has been heatedly debated.) It is this aspect of the present facts, however, which poses the greatest problem for not just calculating but even estimating future revenues or future losses. No one, not even the Plaintiffs, has empirical data to support the suppositions contained in the deposition of Allen B. Childress.[2] At best, they are speculative assumptions dependent upon any number of various factors, any one of which, if adversely affected, could skew the projections into a financial disaster. This is not pure conjecture but based on facts in the present record. These facts, presented by the Defendants, suggest that the coal export market is quite weak at the present time and suggests that the components of pricing for United States coal make it not very competitive.[3] But that is not all. The uncertainty of what is at stake here is heightened when one considers that what will be recovered if the Plaintiffs are allowed to proceed will not be fully realized until the passage of an appreciable amount of time characterized as a "start-up period." If everything proceeds as planned, projected revenues by 1986 will amount to 10 million dollars per year.[4] Obviously, the vagaries of business conditions could prolong the start-up period and, yes, it could even shorten it. The point is, however, that whatever the case, the present record for irreparable injury is based on speculation and uncertainty. And this hardly presents the situation which lends itself to some reasonable degree of definition, to some fair estimate of irreparable harm. Projections of future growth are necessarily the ingredients for continued business success. Whether the projections meet the standards for establishing irreparable harm, however, appear to be somewhat of a different case. Cf., A.O. Smith v. F.T.C., 530 F.2d at 528; Constructors Ass'n of Western Pennsylvania v. Kreps, 573 F.2d at 819. In A.O. Smith v. F.T.C., 530 F.2d 515, the plaintiffs contended that the Federal Trade Commission had illegally issued orders requiring them to file Line of Business ("LB") Reports. The Third Circuit held that the costs of preparing the reports did not constitute irreparable injury although plaintiffs could not recover their costs even if they prevailed on the merits. The Court reasoned: [T]he alleged injury was "unrecoverable costs and commitment of diverse business resources." Without intending to disparage the importance of such an injury, we observe that all that is lost is *521 profits. Any time a corporation complies with a government regulation that requires corporation action, it spends money and loses profits; yet it could hardly be contended that proof of such an injury, alone, would satisfy the requisite for a preliminary injunction. Rather, in cases like these, courts ought to harken to the basic principle of equity that the threatened injury must be, in some way, "peculiar." ... These are not "small" corporations; there is no contention that compliance with the LB program would render any appellee unable to meet its debts as they come due. Nor is there any contention that the cost of compliance would be so great vis · vis the corporate budget that significant changes in a company's operations would be necessitated. 530 F.2d at 527-28. The court did not establish a general standard for determining when a loss is "peculiar" but did note that "a corporate liquidity crisis or significant changes in company operations" were not necessarily required. Id. at 527 n. 9a. Unrecoverable losses of over 30 million dollars have been held sufficient to constitute irreparable injury where this resulted in an operating loss to one of the plaintiffs even though the plaintiffs' solvency was not threatened. Northern Natural Gas v. U.S. Dept. of Energy, 464 F.Supp. 1145, 1155-58 (D.Del. 1979). This is not to suggest that lost profits may never be the basis for establishing irreparable injury. Curiously, however, the Plaintiffs have not alleged that the daily loss of fixed costs impairs the solvency of their operations or even jeopardizes their vitality. The annualized sum, accepting Plaintiffs' contentions, is an onerous expense but on the whole represents something less than one per cent of Norfolk Southern's 1983 pre-tax earnings of 604 million dollars.[5] On the whole, this case is, therefore, not similar to Northern Natural Gas, supra, in which the injury would have resulted in an overall loss to one of the plaintiffs. Rather, this case is analogous to Phillips Petroleum v. United States Steel Corp., 566 F.Supp. 1093, 1103 (D.Del.), aff'd, 727 F.2d 1120 (Fed.Cir.1983), which held that an unrecoverable loss of $700,000 to United States Steel did not constitute irreparable injury. If the conclusions of the Court on irreparable injury appear somewhat disdainful, it should be remembered that Plaintiffs took a rather cavalier attitude in determining their status under the CZA. Even after getting notice of their jeopardy in the early fall of 1983, they did nothing to protect their interests or mitigate their losses. Their protestations to the contrary, the Court is convinced that a reasonably prudent investor should have known that CZA was at least an administrative hurdle that had to be accommodated before proceeding with this project. Why else did Dowd meet with DNREC personnel in 1982 and early 1983 other than to inquire about the application of the CZA. Admittedly, that was at least one topic for discussion. In addition, they were aware that there were inquiries made by other people regarding the applicability of CZA to a coal top-off project.[6] And, in spite of the fact that state personnel voiced their opinion that the CZA was not applicable, Plaintiffs knew of the law and its prohibitions of industralization along Delaware's Coastal area. Under these circumstances, it was at least foolhardy to embark on million dollar expenditures before they were sure of the legality of their project. The opinions of state personnel cannot rise to the level of a formal administrative hearing, even if the agency's chief gives an "off-the-cuff" opinion. It is quite clear from the statute that neither the Secretary nor the other state officials consulted by Plaintiffs has the final say in determining the construction of *522 the Act. Further, the Act specifies a clear and expedited procedure for obtaining an authoritative review of the Secretary's decision. Plaintiffs and the Dowd interests could have followed this procedure prior to signing the contracts and incurring major expenses on the project but failed to do so. The Court cannot allow Plaintiffs to bootstrap a claim for irreparable injury by incurring obligations in utter disregard of state regulatory uncertainties. Downstate Stone Co. v. United States, 651 F.2d 1234, 1242 (7th Cir.1981). To rule otherwise is to place in the hands of enterprising individuals the key to injunctive relief. Plaintiffs argue that the denial of their constitutional right to carry on interstate commerce is in itself an irreparable injury. The Supreme Court and the Third Circuit have recognized that a violation of constitutional rights, even for a minimal period of time, can constitute irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (first amendment); Lewis v. Kugler, 446 F.2d 1343, 1350 (3d Cir.1971) (search and seizure). Plaintiffs have not, however, cited any authority holding that a violation of commerce clause rights constitutes irreparable harm. The Third Circuit has made it clear that not all violations of constitutional rights constitute irreparable injury. In Constructors Ass'n of Western Pennsylvania v. Kreps, 573 F.2d 811, plaintiffs sought a preliminary injunction enjoining compliance with a statute requiring that 10% of all federal funds for certain public works projects be expended in contracts with minority business enterprises. Plaintiff was a trade association of white-owned construction contractors. Plaintiff claimed, inter alia, irreparable harm due to denial of its members' equal protection rights under the fifth amendment. The Third Circuit, after noting that Plaintiff had not demonstrated a probability of success on the merits, ruled, "unlike first amendment rights whose deprivation even for minimal periods of time constitutes irreparable injury ... a denial of equal protection rights may be more or less serious depending on the other injuries which accompany the deprivation." Id. at 820 n. 33 (citations omitted). Similarly, where the loss to Plaintiffs is purely monetary and that loss by itself is not an "irreparable injury", any violation of the commerce clause does not constitute irreparable injury per se. The Court concludes that any possible violation of the commerce clause is not the same as a violation of first amendment rights. In weighing the totality of circumstances to determine the possibility of harm to third parties or to the public interest, the Court is mindful of the delicate balance of interests which are presented by this petition. The claims of interest and the jeopardy of those interests applicable to the Plaintiffs have already been discussed. What has not been discussed, however, are the implicated interests of the State of Delaware if this Court were to grant a preliminary injunction. The people of the State of Delaware, acting through their elected officials, have duly enacted into law a consensus about the quality of life they seek for themselves and their posterity. They seek by the CZA to protect their environment and preserve the immensely valuable coastal area of their state. In the fashion approved by the mandates of our democratic process, they have elected to forego industrialization, the profits, the jobs and obvious economic benefits flowing from such development in favor of protecting and preserving their environment. These are noble efforts and should not be lightly dismissed. As diligent and anxious as the federal courts must be to protect federal rights and federal interests, we must be ever mindful of the critical role played by our states and their agencies in our federalism. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). If our intrusion becomes too great, we lay the groundwork for the suppressing of the public will. It is a concern that should prompt our forbearance in matters that unduly and unnecessarily "interfere with the legitimate activities of the States." *523 Younger v. Harris, supra, at 44, 91 S.Ct. at 750. In this instance, there is a great deal at stake for the State of Delaware. The granting of our injunction will for most purposes sweep aside the prohibitions of the CZA, open the door to a project declared by an Administrative Board and a Delaware Court as prohibited practice and sweep aside the legitimate interests of the public in the CZA and the procedure for protecting those interests. There is now pending before the Supreme Court of Delaware a controversy involving corporations which are not parties to this action but certainly principals in the total scheme of the top-off project. Coastal Barge seeks a reversal of the Superior Court's decision that decided the coal top-off project is a bulk product transfer facility and, therefore, a prohibited practice under the CZA. A favorable determination of that issue for Coastal Barge will moot the constitutional issues in this case. The state action was filed first; it has proceeded in an orderly and efficient manner. To the date of its appeal to the Supreme Court, it was even given preferential treatment in spite of the critical issues involved.[7] Wilson acted within one day and the Superior Court, rather than rule on a stay, ruled on the merits of the appeal. From February, 1984, to August 29, 1984, their case has proceeded from the Secretary of DNREC to the Board, to the Superior Court and is now pending before the Supreme Court of Delaware. In deference to that procedure now pending before the State Supreme Court, this Court is not prepared to discuss Plaintiffs' probability of success on the merits of its constitutional claims. First, it is not necessary. The Court has found that the Plaintiffs have not carried their burden in establishing irreparable injury. On balancing the equities, it is apparent that Plaintiffs precarious position was unjustifiably and recklessly self imposed and they should not be entitled to bootstrap themselves to relief. If relief were to be granted, the status quo would not be maintained and the Plaintiffs would have gained everything they would have gained after a trial on the merits. Dorfmann v. Boozer, 414 F.2d 1168, 1173 n. 13 (D.C.Cir.1969); Selchow & Righter Co. v. Western Printing & L. Co., 112 F.2d 430 (7th Cir.1940). Third parties and the public interests would be adversely and unnecessarily affected if the injunction were granted. Finally, any discussion of the constitutional claims would impose a serious cloud over what should be a free and unencumbered exercise of the Delaware Supreme Court's legitimate and unique jurisdictional function. For all these reasons, the motion for a preliminary injunction is denied. NOTES [1] While Plaintiffs have emphasized these two sources, they have also pointed to an unquantifiable loss of revenue to Norfolk Southern's railroad subsidiaries resulting from lower coal shipments. Plaintiffs' Opening Brief, p. 55-56. [2] Childress Statement, p. 6, 8. [3] Attachments 3 and 4 to Chaikin Statement. [4] This figure is consistent with testimony by Thomas H. Kerwin, Vice-President and Treasurer of Norfolk Southern, in the proceedings before the Superior Court. Super.Trans., p. 76. [5] Attachment 1 to Chaikin statement. [6] Letter from David Hugg to Elias Kulukundis, dated September 7, 1982. Appendix to Plaintiffs' Answering Brief, p. A-2. [7] One gets the impression of a frenzy of activity in this case. The Plaintiffs and their related parties have pushed for accelerated treatment throughout and, to this date, have received it.

741 F.2d 1086 HODGE CHILE COMPANY, Appellant,v.KNA FOOD DISTRIBUTORS, INC., Kenneth E. Adelmann and HarryBrunsen, Appellees.HODGE CHILE COMPANY, Appellee,v.KNA FOOD DISTRIBUTORS, INC., Kenneth E. Adelmann and HarryBrunsen, Appellants. Nos. 83-2610, 83-2696. United States Court of Appeals,Eighth Circuit. Submitted June 12, 1984.Decided Aug. 23, 1984.Rehearing Denied Sept. 24, 1984. Joseph A. Fenlon, Clayton, Mo., A. Fuller Glaser, Jr., St. Louis, Mo., for Hodge Chile Co. Francis L. Ruppert, Terrance L. Farris, Clayton, Mo., for appellees/cross-appellants. Before ROSS, HENLEY and BOWMAN, Circuit Judges. ROSS, Circuit Judge. 1 This case involves the right to use the name "Hodge" in marketing chile products. Jurisdiction exists by virtue of the Lanham Act. 15 U.S.C. Sec. 1121. 2 The district court prepared two opinions, one of which is published at 575 F.Supp. 210 (D.Mo.1983). Hodge Chile Company appeals the district court's decision that KNA Food Distributors (KNA) is not infringing its federally registered "Hodge's" trademark or acting in unfair competition by marketing chile and tamales in grocery outlets under the name "O.T. Hodge Chile Parlor Chili" (or "Tamales"). 3 KNA defends on the basis of a settlement agreement reached between Hodge Chile Company and O.T. Hodge Chile Parlors, Inc. in 1954. The 1954 agreement, inter alia, transferred the right to use the name "O.T. Hodge Chile Parlors" to O.T. Hodge Chile Parlors, which right O.T. Hodge Chile Parlors assigned to KNA. 4 KNA cross-appeals, arguing that the district court erred in failing to award it attorney fees pursuant to 15 U.S.C. Sec. 1117. KNA asserts that the requisite "exceptional circumstances" existed via the fact that the Hodge Chile Company obtained its registered trademark by use of a false affidavit. 5 We have carefully studied the record, including the district court's opinions and the briefs of the parties to the action. We find no merit in the arguments for reversal, and accordingly affirm pursuant to Rule 14 of the Rules of this court on the basis of the district court's findings.

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this May 14 2015, 8:40 am Memorandum Decision shall not be regarded as May 14 2015, 8:39 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Deborah M. Agard Douglas R. Long Law Office of Deborah M. Agard Anderson, Indiana Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA In Re the Marriage of: May 14, 2015 Court of Appeals Case No. Leann Palmer (Lawrence), 48A04-1405-DR-203 Appellant-Petitioner, Appeal from the Madison Circuit Court. v. The Honorable Carl E. Van Dorn, Special Judge. Cause No. 48D03-0712-DR-1413 Jeffrey Palmer, Appellee-Respondent Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 1 of 13 [1] Leann Palmer (Mother) appeals the trial court’s order denying her petition to modify the child custody arrangement in place between Mother and Jeffrey Palmer (Father). Mother makes a number of arguments, which we consolidate and restate as follows: (1) that the trial court erred by declining to name Betty Palmer, the children’s paternal grandmother (Grandmother), as a de facto custodian and party; and (2) that there is insufficient evidence supporting the trial court’s order. Finding no error, we affirm. Facts [2] Mother and Father were married in 1988 and had two children, A.P., who was born in 2001, and B.P., who was born in 2003. On April 18, 2007, the marriage was dissolved and Father was named primary custodian of the children. At that time, Mother was incarcerated on convictions for five counts of federal bank fraud.1 [3] Since that time, Father and the children have lived with Grandmother. The children are enrolled in a parochial school, which they have attended for the past three years. Mother does not contribute to the cost of their education or healthcare, and she has never paid child support, though Father receives part of her disability payments to care for the children. 1 As a result of her convictions, Mother is ordered to pay over $429,000 in restitution. Monthly payments on this debt are deducted from her disability payments. Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 2 of 13 [4] A.P. has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The school he attends has set up a program to help manage his special needs. He has had the same teacher for the past two years, and she testified that A.P. has adjusted quite well to school, concentrates much better since beginning a medication regimen, and now has many friends. Mother has never been involved in the children’s education. A.P. sees a psychiatrist, Dr. Sheila Irick, to help manage his medication and his needs. Dr. Irick testified that removing A.P. from his school would be harmful, that A.P. is receiving exceptional care from Father and Grandmother, and that the weight of both children is within normal limits.2 While there was a time when the children were not involved in any extracurricular activities because of concerns for A.P., both children are now involved in Boy Scouts and basketball. [5] Father has a full-time job that requires his presence at work from approximately 9 in the morning until 7 or 7:30 in the evening. As a result, he is generally able to spend time with the children in the morning before school and in the evenings before bed, as well as on the weekends. While Father is at work, Grandmother cares for the children. Specifically, she takes A.P. to his doctor appointments, communicates with the school about the children, and ensures that their needs are met. When Father is at home, he cares for the children. When he is able to, he attends medical appointments and always discusses 2 Mother testified that she was concerned that the children were underweight, but offered no expert testimony to contradict Dr. Irick’s opinion that the children’s weight was healthy. Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 3 of 13  medical care decisions with Grandmother before those decisions are made. The children are bonded to both Father and Grandmother. [6] At some point, Mother was released from incarceration. Since that time, she has called the police on Father, resulting in charges against him that were later dismissed, and called Child Protective Services on Father, resulting in allegations that were unsubstantiated. On one occasion, Mother went to the children’s school, where she screamed and verbally attacked teachers and school personnel, resulting in her being escorted from the school premises. Mother complains that she has been unable to access the children’s school, medical, and mental health records, but that has since been rectified. Father has never been held in contempt for any failure to abide by the custody order in place. Mother testified that if she got custody, she would consider moving the boys to a different school or home schooling them, which Dr. Irick opined would not be in their best interests. [7] On September 19, 2011, Mother filed a petition to modify the child custody arrangement, seeking to be named the primary custodian. Mother asked that a Guardian ad Litem (GAL) be named to represent the children’s interests, and the trial court granted that request, appointing a GAL on March 5, 2012. The GAL filed a report with the trial court on May 21, 2012, and filed a supplemental report on August 7, 2012. The GAL recommended that Mother and Father share joint legal custody but that Father remain the primary physical custodian, with Mother to have liberal parenting time while Father is at work. Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 4 of 13 [8] On March 5, 2013, Mother filed a second petition to modify the child custody arrangement, seeking to be named the primary custodian. According to Mother, the second petition was filed because no hearing had been held on the first.3 [9] On four days between August 28, 2013, and January 27, 2014, the trial court held an evidentiary hearing on the motion to modify. The parties submitted proposed findings of fact and conclusions of law, and on April 8, 2014, the trial court entered its order denying Mother’s motion to modify. Mother now appeals. Discussion and Decision I. De Facto Custodian [10] Mother first argues that the trial court erred by declining to find that Grandmother is the children’s de facto custodian and naming her a party to the litigation. “De facto custodian” is defined as “a person who has been the primary caregiver for, and financial support of, a child who has resided with the person” for at least one year for children over the age of three. Ind. Code § 31- 9-2-35.5. If it is established “by clear and convincing evidence that a child has been cared for by a de facto custodian,” then certain factors must be considered. Ind. Code § 31-17-2-8.5. If, having considered all relevant factors, the trial 3 The Chronological Case Summary shows that another motion to modify custody, support, and visitation was filed by Mother on June 26, 2013, but this pleading does not appear in the Appellant’s Appendix. Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 5 of 13  court “determines that a child is in the custody of a de facto custodian, the court shall make the de facto custodian a party to the proceeding.” I.C. § 31-17-2- 8.5(c). In other words, even if a child has been cared for by a de facto custodian, that person is not a required party unless the trial court determines that the child was actually “in the custody” of the de facto custodian. [11] In this case, Mother never requested that the trial court find Grandmother to be a de facto custodian of the children. Indeed, her proposed findings of fact and conclusions of law make no mention of this issue. Consequently, she has waived it for purposes of this appeal. [12] Waiver notwithstanding, we note that in any event, Mother failed to meet her burden of establishing by clear and convincing evidence that Grandmother was a de facto custodian. Instead, the record reveals that Grandmother cared for the children while Father was at work, including managing their medical appointments and educational needs. But when Father was home, he was also a caregiver for the children, he kept apprised of what was happening in the children’s lives, and he attended medical appointments and school events when he was able to. This is a common situation when any parent has a full-time job, and in this case, the children are lucky enough to have a family member able to meet these needs instead of a childcare facility or babysitter. Therefore, even if Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 6 of 13  Mother had not waived the issue, we find that she has failed to establish that Grandmother is a de facto custodian.4 II. Sufficiency [13] Next, Mother makes a number of arguments that amount to a contention that there is insufficient evidence supporting the trial court’s denial of her motion to modify. We review rulings on requests to modify custody for abuse of discretion, with a preference for granting latitude and deference to our trial judges in family law matters. Wilson v. Myers, 997 N.E.2d 338, 340 (Ind. 2013). In reviewing the trial court’s determination, we neither reweigh evidence nor assess witness credibility. In re Marriage of Harpenau, 17 N.E.3d 342, 346 (Ind. Ct. App. 2014). We will not substitute our judgment if any evidence or legitimate inferences support the trial court’s judgment. Id. [14] The Indiana Code prohibits a court from modifying a child custody order unless “(1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 . . . of this chapter.” I.C. § 31-17-2-21(a). Those factors include: 4 We also express our skepticism that Mother has standing to raise this issue. It is apparent to us that the intent of the requirement to make a de facto custodian who has custody of a child a party to any custody proceeding is to benefit and protect the de facto custodian, who otherwise might have no input into the trial court’s determination. We question whether a biological parent has the right to inject the issue into a custody proceeding. We need not answer this question, however, inasmuch as we conclude that in this case, Mother has not succeeded with her argument on this issue. Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 7 of 13   the child’s age and gender;  the wishes of the parent(s);  the wishes of the child, with greater consideration given to the wishes of children fourteen years of age and older;  the relationship the child has with his or her parent(s), sibling(s), and others;  the child’s adjustment to home, school, and community;  the mental and physical health of all involved;  any evidence of domestic or family violence;  and any evidence that the child has been cared for by a de facto custodian. I.C. § 31-17-2-8. The party seeking modification “bears the burden of demonstrating that the existing arrangement is no longer in the best interests of the child and there has been a substantial change in one or more of the enumerated statutory factors[.]” Wilson, 997 N.E.2d at 340 (internal citation omitted).5 [15] In this case, the record reveals that Father has been the children’s primary custodian since 2006. While the normal ups and downs of life have occurred in the ensuing years, it is apparent that the children are safe, loved, and thriving in this home. Father and Grandmother appropriately sought medical advice 5 Mother makes much of the fact that the trial court quoted caselaw that may or may not still be good authority, claiming that the trial court applied an incorrect legal standard to the proceedings. Specifically, in its order, the trial court stated as follows: “The requirements for a modification of child custody are set forth in I.C. 31-17-2-21 and case authority. There must be a showing that modification is in the best interest of the boys and that there has been a substantial change of circumstances in [Father’s] home that warrants a modification.” Appellant’s App. p. 17. The trial court then proceeds to reference outdated caselaw. While we acknowledge that an incorrect standard may have been applied, we are confident that the evidence in the record readily supports the trial court’s judgment. To remand for reconsideration would be an inefficient use of judicial and litigant resources, inasmuch as the trial court would justifiably reach the same conclusion as it did the first time around. Consequently, we decline to remand on this basis. Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 8 of 13  regarding A.P.’s challenges, received the ADHD diagnosis, and then worked with the school to ensure that his educational needs are being met and with a psychiatrist to ensure that his medication regimen is appropriate. Since receiving the diagnosis and treatment, A.P. has dramatically improved in school and has made many friends at school and in his neighborhood. His psychiatrist testified that A.P. is receiving exceptional care from Father and Grandmother and that it would not be in his best interests to change homes or schools. There is no evidence that B.P. is having any difficulties at this time. Both children are now enrolled in basketball and Boy Scouts. [16] The vast majority of Mother’s argument on appeal consists of her directing our attention to evidence that supports her position and attempting to discredit the evidence and witnesses relied upon by the trial court. This amounts to a repeated request that we reweigh the evidence and assess witness credibility, which we will not do. See Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (cautioning that with respect to custody modifications, appellate courts “are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence”). [17] It is readily apparent that the difficulties in this case stem from the negative relationship between Mother, Father, and Grandmother. This relationship is permeated by animosity, vitriol, and poor communication. That, unquestionably, is not in the children’s best interests. We encourage the adults Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 9 of 13  in this case to act as such, to leave the past behind, and start anew for the sake of the children. Mother must respect Father’s role as parent and primary custodian and Grandmother’s role as caregiver, and Father and Grandmother must respect Mother’s role as parent, as well as her right to the parenting time to which she is entitled. [18] That said, there is ample evidence in the record supporting the trial court’s denial of the motion for custody modification. There is no basis on which to conclude that the trial court abused its discretion in concluding that Mother failed to meet her burden of establishing a substantial change in circumstances such that modification is warranted. [19] The judgment of the trial court is affirmed. Crone, J., concurs, and Brown, J., concurs in part and dissents in part with an opinion. Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 10 of 13  IN THE COURT OF APPEALS OF INDIANA In Re the Marriage of: Court of Appeals Case No. 48A04-1405-DR-203 Leann Palmer (Lawrence), Appellant-Petitioner, v. Jeffrey Palmer, Appellee-Respondent. Brown, Judge, concurring in part and dissenting in part. [20] I concur with the majority as to its de facto custodian analysis, but respectfully dissent from the majority’s conclusion that “it is apparent that the trial court applied the correct legal standard” to the proceedings. Slip op. at 8 n.5. In denying Mother’s petition, the trial court stated in its “Conclusions of Law” that “[t]he requirements for a modification of child custody are set forth in I.C. 31-17-2-21 and case authority.” Appellant’s Appendix at 17 (emphasis added). It proceeded to cite language from the case of Herrmann v. Herrmann, 613 N.E.2d 471, 473 (Ind. Ct. App. 1993), reh’g denied, in which this court stated: “A Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 11 of 13  modification of custody is warranted only when the noncustodial parent shows a decisive change of conditions in the custodial home or a change in the treatment of the children in the custodial home which necessitates removal.” Id. Thus, despite the fact that it cited to the current modification statute, the court applied this language in Herrmann in rendering a decision on Mother’s petition. [21] At the time of Herrmann,6 modification of child custody was governed by Ind. Code § 31-1-11.5-22(d), which provided as follows: The court in determining said child custody, shall make a modification thereof only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable. In making its determination, the court shall not hear evidence on matters occurring prior to the last custody proceeding between the parties unless such matters relate to a change of circumstances. (Subsequently amended by Pub. L. No. 4-1993, § 264; Pub. L. No. 5-1993, § 277; Pub. L. No. 139-1994, § 2; repealed by Pub. L. No. 1-1997, § 157). In Pub. L. No. 139-1994, the General Assembly replaced the former statute with a new modification statute which is substantially similar to the current version found at Ind. Code § 31-17-2-21(a) and is principally focused on the best interests of the child and whether a substantial change in one of the enumerated factors listed in Ind. Code § 31-17-2-8 has occurred. See also Joe v. Lebow, 670 N.E.2d 9, 6 The father in Herrmann filed his petition for modification of custody on November 5, 1990. 613 N.E.2d at 473. Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 12 of 13  17 (Ind. Ct. App. 1996) (noting that “[e]ffective July 1, 1994, the modification provisions in both the paternity and the dissolution statutes were revised significantly . . .”). [22] The court erroneously applied certain language from Herrmann that, to prevail, Mother was required to show that “a decisive change of conditions in the custodial home or a change in the treatment of the children in the custodial home” existed “which necessitate[d] removal” of A.P. and B.P. This is a statement of law interpreting a superseded statute which neither concerns itself with the best interests of the children, nor instructs the court to examine the enumerated factors listed in Ind. Code § 31-17-2-8. Rather, when Herrmann was issued the court’s sole focus was to determine whether the movant demonstrated “changed circumstances so substantial and continuing as to make the existing custody order unreasonable.” Because the court applied an incorrect legal standard in reviewing Mother’s modification petition, I would remand with instructions that the court consider the best interests of A.P. and B.P., as well as the factors of Ind. Code § 31-17-2-8, without necessarily hearing additional evidence, and to issue amended findings and conclusions based thereon. For these reasons, I respectfully dissent in part. Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 13 of 13 

FILED Apr 28 2016, 9:38 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Stephen Miller Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana ______________________________________________________________________________ In the Indiana Supreme Court _________________________________ No. 02S03-1508-CR-510 LEONARD L. SUGGS, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Allen Superior Court, No. 02D06-1408-F6-90 The Honorable Wendy W. Davis, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-1412-CR-440 _________________________________ April 28, 2016 Rucker, Justice.  The question presented is whether the sister of a brother who was once married to the defendant’s aunt is a “family or household member” within the meaning of the statute elevating misdemeanor battery to a level 6 felony. We think not. Facts and Procedural History On the evening of August 2, 2014, Leonard L. Suggs and his girlfriend, Evelyn Garrett, attended a family reunion at a bowling alley in Allen County. Suggs and Garrett were dating and had lived together in an intimate relationship for about two years. Family members attending the reunion included ten to twenty children under the age of sixteen. Also in attendance was Vera Warren whose brother had been previously married to Suggs’ aunt. Suggs has known Warren all his life and refers to her as “Auntie.” At some point during the course of the evening Suggs and Garrett became engaged in a verbal altercation. Despite the intervention of several family members and the assistant manager of the bowling alley Suggs refused to leave. The altercation escalated and Suggs threw a beer can at Garrett that missed; he then picked up a bowling ball and threw it at her. The bowling ball grazed Garrett and hit Warren on the left side of her head, which she later testified caused her pain. Warren immediately left the building and called 911. In the meantime Suggs grabbed Garrett by the hair and pulled her down a flight of stairs. Officers of the Fort Wayne Police Department arrived on the scene a short time thereafter and spoke with Garrett and two of the children who had observed the fracas. The children were extremely upset by what they had seen. On August 7, 2014 the State charged Suggs with domestic battery as a level 6 felony for his assault on Garrett and battery as a level 6 felony for his assault on Warren. Following a jury trial on October 8, 2014 Suggs was found guilty as charged. Thereafter the trial court sentenced him to two years for each conviction to be served consecutively for an aggregate term of four years with credit for time served in pretrial confinement. Suggs appealed challenging the sufficiency of the evidence for both convictions. Rejecting Suggs’ challenge the Court of 2 Appeals affirmed the judgment of the trial court. See Suggs v. State, 31 N.E.3d 998 (Ind. Ct. App. 2015). Having previously granted transfer we now reverse the judgment of the trial court with respect to Suggs’ level 6 battery conviction. In all other respects we summarily affirm the opinion of the Court of Appeals. See Ind. App. R. 58(A). Discussion Indiana Code section 35-42-2-1 provides in relevant part, “a person who knowingly or intentionally: (1) touches another person in a rude, insolent, or angry manner . . . commits battery, a Class B misdemeanor[,]” which is elevated to a class A misdemeanor “if it results in bodily injury to any other person.” Ind. Code § 35-42-2-1(b), (c).1 The statute further provides: [Battery] is a Level 6 felony if . . . [t]he offense is committed against a family or household member (as defined in IC 35-31.5-2- 128) if the person who committed the offense: (A) is at least eighteen (18) years of age; and (B) committed the offense in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense. I.C. § 35-42-2-1(d)(6). Challenging the sufficiency of the evidence Suggs does not dispute he was at least eighteen years of age at the time of the offense, nor does he contest that the battery occurred in the physical presence of a child less than sixteen years of age or that he knew the child was present and might be able to see or hear the offense. Rather he complains the evidence is insufficient to demonstrate that Warren was a “family or household member” within the meaning of Indiana Code section 35-31.5-2-128. When we review a claim challenging the sufficiency of the evidence we neither reweigh the evidence nor assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). Instead, we consider only the evidence and reasonable inferences drawn therefrom that support the verdict. Id. And we will affirm the conviction if there is probative evidence 1 “‘Bodily injury’ means any impairment of physical condition, including physical pain.” I.C. § 35-31.5- 2-29. 3 from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. Captioned “Family or household member” Indiana Code section 35-31.5-2-128 dictates in pertinent part: (a) An individual is a “family or household member” of another person if the individual: (1) is a current or former spouse of the other person; (2) is dating or has dated the other person; (3) is or was engaged in a sexual relationship with the other person; (4) is related by blood or adoption to the other person; (5) is or was related by marriage to the other person; (6) has or previously had an established legal relationship: (A) as a guardian of the other person; (B) as a ward of the other person; (C) as a custodian of the other person; (D) as a foster parent of the other person; or (E) in a capacity with respect to the other person similar to those listed in clauses (A) through (D); or (7) has a child in common with the other person. I.C. § 35-31.5-2-128(a) (emphasis added). Focusing on subsections (a)(4) and (5) Suggs insists that Warren is neither his “blood relative” nor is she related by marriage to him. Br. of Appellant at 9. According to Suggs, a relative by marriage connotes “Brother-in-law,” “Sister-in-law,” “Mother-in-law,” “Son-in-law,” and “Daughter-in-law,” and that Warren does not fall within any of these categories. Id. at 11. The State counters, “[t]he statute appears to define ‘family or household member’ in broad terms to capture as many types of familial and household relationships as possible, and, while the statute provides that an individual who is related by blood to the other person is a family or household member, other types of relationships are also clearly protected.” Br. of Appellee at 10-11. As is apparent by the arguments of both sides we are presented with a question of statutory construction which is a matter of law and is reviewed de novo. When construing a statute our primary goal is to ascertain the legislature’s intent. Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012). To discern that intent, we look first to the statutory language itself and give 4 effect to the plain and ordinary meaning of statutory terms. Pierce v. State, 29 N.E.3d 1258, 1265 (Ind. 2015). “If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning.” State v. Evans, 810 N.E.2d 335, 337 (Ind. 2004) (quotation omitted). However, if a statute admits of more than one interpretation, then it is ambiguous; and we thus resort to rules of statutory interpretation so as to give effect to the legislature’s intent. Adams, 960 N.E.2d at 798. “For example, we read the statute as whole, avoiding excessive reliance on a strict, literal meaning or the selective reading of individual words.” Id. And we seek to give a practical application of the statute by construing it in a way that favors public convenience and avoids an absurdity, hardship, or injustice. Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005). Further, criminal statutes must be strictly construed against the State, and “may not be enlarged beyond the fair meaning of the language used . . . .” Yao v. State, 975 N.E.2d 1273, 1279 (Ind. 2012) (internal citation omitted). We have no doubt the “Family or household Member” statute contemplates the inclusion of in-laws. See, e.g., City of Las Vegas v. Eighth Jud. Dist. Ct. ex rel. Cty. of Clark, 188 P.3d 55, 58-59 (Nev. 2008) (analyzing a similar statute and noting, it “plainly includes mothers-in- law, fathers-in-law, sisters-in-law, and brothers-in-law” based in part on the fact that “a person of ordinary intelligence would interpret the phrase ‘related by blood or marriage’ to include a person’s direct in-laws”). But that is not to say the statute is limited to in-laws only. Indeed we agree with the State’s contention that the statute appears to define family or household member in broad terms. However, if literally construed the term “related by marriage” would encompass not only the attenuated relationship between Warren and Suggs, but it would also include even far more attenuated relationships as well, say for example, the aunts and uncles of second cousins three times removed. We are not persuaded that by use of the term “related by marriage” the legislature intended to include an infinite variety of relationships whose only connection is a marriage or series of marriages identified somewhere on the remote branches of a family tree. The statute is thus ambiguous in that it admits of more than one interpretation. We therefore seek to give a practical application to the meaning of the statute by construing it in a way that avoids absurdity. See Merritt, 829 N.E.2d at 475. 5  “Related by marriage” is commonly referred to as affinity, which is defined as “the connection existing in consequence of marriage between each of the married persons and the kindred of the other. It is distinguished from consanguinity, which denotes relationship by blood.” Tegarden v. Phillips, 42 N.E. 549, 551 (Ind. App. 1895). The Court of Appeals has elaborated, “a husband is related by affinity to all the [blood relatives] of his wife and vice versa the wife to the husband’s [blood relatives]; for the husband and wife being considered one flesh, those who are related to the one by blood are related to the other by affinity.” White v. State, 756 N.E.2d 1057, 1060-61 (Ind. Ct. App. 2001) (quotation omitted); see also Black’s Law Dictionary 1480 (10th ed. 2014) (defining “relative by affinity” and explaining: “Based on the theory that marriage makes two people one, the relatives of each spouse become the other spouse’s relatives by affinity.”). Nonetheless a relationship by affinity is not unlimited, hence the maxim “affinis mei affinis non est mihi affinis . . . . A relative of my relative by marriage is not my relative.” Ballentine’s Law Dictionary with Pronunciations 45 (3d ed. 1969); accord John Trayner, Latin Phrases and Maxims: Collected from the Institutional and other Writers on Scotch Law; with Translations and Illustrations 22 (Edinburgh, William Paterson 1861) (writing that “Affinitas affinitatis” translates as “Affinity of affinity” and explaining: “This constitutes no relationship. The brother of a husband is no way thereby related to the sister of the wife.”). Further, “[t]here is no affinity between the blood relatives of one spouse and the blood relatives of the other. A husband is related by affinity to his wife’s brother, but not to the wife of his wife’s brother. There is no affinity between the husband’s brother and the wife’s sister.” 2 Charles E. Torcia, Wharton’s Criminal Law § 242 at 573 (15th ed. 1994) (footnotes omitted); see also White, 756 N.E.2d at 1061 (noting “the [blood relatives] of the husband are not at all related to the [blood relatives] of the wife” (citation omitted)). It appears to us that rather than extending the scope of “related by marriage” to an infinite configuration of marital relationships the legislature intended instead to employ the term in its commonly understood meaning namely, related by “affinity.” As applied to the facts here, we 6 assume for the sake of discussion that Suggs’ aunt is his mother’s sister.2 Suggs is obviously related by blood to his mother and his mother’s sister. As for Warren, although she is related by blood to her own brother and related by affinity to her brother’s wife (the sister of Suggs’ mother), she is not related by blood or affinity to Suggs. And this is so because Suggs is the blood relative of one spouse—his mother’s sister—and Warren is the blood relative of the other spouse—her own brother. “There is no affinity between the blood relatives of one spouse and the blood relatives of the other.” 2 Wharton’s Criminal Law § 242 at 573. In essence, the evidence is not sufficient to show that Suggs is related to Warren by marriage as the term is used in Indiana Code section 35-31.5-2-128. Accordingly, Warren is not a family or household member within the meaning of the statute elevating misdemeanor battery to a level 6 felony. Conclusion We reverse Suggs’ conviction for battery as a level 6 felony and remand this cause to the trial court with instructions to enter judgment on battery as a class A misdemeanor and to resentence accordingly. Rush, C.J., and Dickson, David and Massa, JJ., concur. 2 The record is silent concerning the way in which Suggs’ aunt is so classified. There are at least two possibilities: (1) she is the sister of either Suggs’ mother or father, or (2) she is married to the brother of either Suggs’ mother or father. However, this silence does not affect our analysis. 7 

505 F.2d 1229 Nathaniel WRIGHT, III, et al., Appellees,v.Delbert C. JACKSON et al., Appellants. No. 74-1353. United States Court of Appeals, Fourth Circuit. Argued June 6, 1974.Decided Nov. 8, 1974. David P. Sutton, Washington, D.C. (C. Francis Murphy, Louis P. Robbins and Richard W. Barton, Washington, D.C., on brief), for appellants. Geoffrey Judd Vitt, Alexandria, Va. (Cohen & Rosenblum, Alexandria, Va., William H. Allen, Michael A. Schlanger, David S. Weissbrodt, and Covington & Burling, Washington, D.C., on brief), for appellees. Before WINTER, RUSSELL and WIDENER, Circuit Judges. DONALD RUSSELL, Circuit Judge: 1 The District of Columbia maintains a number of prisons where persons convicted of crimes committed within the District are confined. Among such prisons is the Lorton Reformatory which, by a special Act of the Congress, was constructed outside the District in Northwest Virginia. As an integral part of the District prison system, however, administrative control of Lorton, as does that of all other prisons in the system, rests entirely with the District of Columbia Department of Corrections.1 2 The plaintiffs-appellees, all of whom are inmates of Lorton, have filed this class action, complaining that, in disciplinary proceedings as conducted at Lorton, the plaintiffs and all other inmates of Lorton are denied their due process rights. The defendants-appellants are the Director of the District of Columbia Department of Corrections and various officials at Lorton itself. The plaintiffs seek injunctive relief. Two other actions brought by other inmates of the District prison system and involving the same issues and seeking similar relief are pending in the District Court of the District of Columbia.2 3 The defendants by their answer, among other pleas, raised the issue that the proper forum for the disposition of plaintiffs' claims was either the Superior Court or the District Court of the District of Columbia.3 The District Court seemingly overruled the defendants' contention of inappropriate forum, proceeded to dispose of the action on the merits, and entered a comprehensive decree setting forth in considerable detail the procedures to be observed by the District of Columbia Department of Corrections in disciplinary proceedings at Lorton. This appeal followed. We remand with instructions. 4 After the entry of the judgment of the District Court herein, the Supreme Court in Wolff v. McDonnell (1974), 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, authoritatively resolved the due process rights of prison inmates in disciplinary proceedings. While a number of the due process requirements established by the District Court complied with the rules authorized by the Supreme Court in Wolff, some of them went beyond what the Supreme Court mandated. For this reason, the judgment of the District Court will be vacated and the cause remanded to the Court for further proceedings in light of Wolff. 5 Apart from the validity of the judgment below on the merits, however, the defendants complain of the exercise of jurisdiction over the cause by the District Court of Virginia. We find this contention deserving of earnest consideration. In Canada Malting Co. v. Paterson Co. (1932), 285 U.S. 413, 423, 52 S.Ct. 413, 415, 76 L.Ed. 837, Justice Brandeis said: 6 '* * * Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.' 7 This authoritative admonition for restraint in the exercise of jurisdiction in those cases where there is a more appropriate forum was quoted by Justice Jackson in his exposition of the doctrine of forum non conveniens in the leading case of Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. After quoting from Canada Malting and observing that 'the principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute',4 Justice Jackson, speaking for the Court in that case, said (p. 505, p. 841 of 67 S.Ct.): 8 '* * * On substantially forum non conveniens grounds we have required federal courts to relinquish decision of cases within their jurisdiction where the court would have to participate in the administrative policy of a state.' 9 Both Gulf and Canada Malting, it is true, predated the enactment of Section 1404, 28 U.S.C. That section, however, was not designed to overturn or restrict the doctrine of forum non conveniens as it was articulated in those cases but, among other reasons, rather to enlarge it and make its exercise more equitable. Norwood v. Kirkpatrick (1955), 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789. That this is so is evident from this statement by Judge Maris, long chairman of the Committee on Civil Rules, in Hoffman v. Goberman (3d Cir. 1970), 420 F.2d 423, 426: 10 'A district court may in the interest of justice decline to pass upon the merits of a controversy and relegate the plaintiff to a more appropriate forum. Indeed, as between the district courts of the United States, transfer to a more appropriate federal forum is expressly authorized by statute. 28 U.S.C. 1404(a).' 11 This case presents, it would seem, just that unusual case envisaged by Gulf and Canada Malting, where the Court should decline to decide the merits of the controversy in deference to 'a more appropriate federal forum'. Actually, we are not dealing here merely with a single separate and independent prison operating under its own individual rules and procedures. What is concerned here is the validity of the operating procedures for all the prisons operated by the Correctional Department of the District of Columbia. Those procedures have been adopted and are to be applies under guidelines fixed by the District Correctional Department in which is vested jurisdiction over all such prisons, whether physically located in the District or without. Those procedures are intended to apply not merely to Lorton but to all the other prison installations in the entire system. Lorton is thus but one of the institutions affected. But this Court-- this District Court of Virginia-- is limited in its determination of the validity of those procedures as they apply to inmates of that single installation at Lorton. That is the sole District prison physically within the jurisdiction of a Virginia District Court. The decree of the Virginia District Court can accordingly have no effect on or control over the procedures followed in the other installations of the District of Columbia's prison system. Those other installations are in the District of Columbia and their officials are not subject to injunctive processes issuing from the Courts of the Virginia District. On the other hand, the Courts of the District of Columbia, before which actions involving these same issues are pending, have jurisdiction over the District of Columbia Department of Corrections and its officials and, through them, over all the prisons, including Lorton, within the entire District's prison system. 12 It must be remembered that Lorton, though physically in Virginia, has, as has been emphasized, a 'unique relationship to the District of Columbia' and its courts;5 it is an integral part of that District's governmental operations and its officials are subject to any decree entered by the District Courts of the District of Columbia. The jurisdiction, under authority of whose courts its prison inmates were confined, and by whose administrative officials control over its prison facilities is exercised, have, as the Court in Preiser v. Rodriguez (1973), 411 U.S. 475, 492, 93 S.Ct. 1827, 36 L.Ed.2d 439, observed, such a peculiarly 'intimate' relationship with the operation of those facilities as to give to that jurisdiction a primacy in the disposition of any equitable complaints relating to the operations of those facilities that will not prevail in other circumstances and instances or in the administration of other statutes having national application. Because of its jurisdiction over all the prisons in the District of Columbia system and this 'intimate' relationship with them and their officials, the District Courts of the District of Columbia can do what the District Court of Virginia cannot do: They can enter a decree that will have universal application throughout the entire prison system of the District of Columbia and covering all the officials in that system, establishing thereby a uniform procedure in all the prisons for disciplinary proceedings and avoiding the confusion likely to result from having the operations of the several units of the District's prison system subject to injunctive processes issued by separate federal courts. 13 Common sense, as well as sound judicial administration, argues against having two separate decrees from two separate courts where a single decree from a single court will suffice. Piece-meal fashioning of remedies for the inmates of the District prison system, prison by prison, by the District Court of the District of Columbia and in the District Court of Virginia, is an intolerable waste of judicial effort and imposition on both courts when the entire issue can be resolved by the formulation of a single decree by one of the District Courts that will apply system-wide. All this can easily be avoided by transferring this case to the District Court of the District of Columbia, to be decided along with the other cases pending before it.6 In that way, there can be a single decree binding on all prisons in the District's prison system; in that way there will be uniformity in the treatment of inmates of any of the prisons; and, finally, in that way, the administrator of the District Correctional System will be supervised by a single court and that the court of the very jurisdiction which had imposed on the inmates of the prison their sentences. In sum, administrative convenience, judicial efficiency, and avoidance, of any possibility of conflict between courts all combine to support the wisdom of transfer in this case on principles of comity, as those principles were expressed in Preiser v. Rodriguez, supra, where the Court, after remarking that, 'The relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private citizen', said: 14 '* * * The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.' (411 U.S. at 492, 93 S.Ct. at 1837) 15 We direct, therefore, that, upon remand, the District Court, even though its 'jurisdiction (over the action) is authorized by the letter of a general venue statute', decline to decide the action on its merits and transfer the cause to the District Court of the District of Columbia for decision. 16 Remanded with directions. 1 Cf., Section 24-442, D.C.Code, 1973 2 These actions were stayed pending the disposition of this case-- presumably because this case was filed earlier than the actions in the District of Columbia. Since, however, this case must be remanded it has no real precedence in terms of trial progress over the two cases in the District of Columbia; all of the cases will necessarily call for a consideration of the standards established in Wolff. The plaintiffs can, therefore, suffer no substantial delay in the adjudication of their rights, whether those rights are determined in the District Court of the District of Columbia or in the District Court of Virginia 3 The defendants' contention is set forth in the fourth defense of their answer: 'These defendants say that the appropriate forum to consider plaintiffs' allegations, regarding the operation of the District of Columbia Correctional facility at Lorton, Virginia, is the Superior Court of the District of Columbia, which court has jurisdiction to consider equitable claims and claims of denial of constitutional rights, and to grant any relief to which plaintiffs may show they are entitled whether as a matter of equity or of constitutional right. In the alternative, the defendants say that the United States District Court for the District of Columbia is the appropriate forum to consider plaintiffs' allegations.' 4 330 U.S. at 507, 67 S.Ct. at 842 5 See Young v. Director, U.S. Bureau of Prisons (1966), 125 U.S.App.D.C. 105, 367 F.2d 331. This case reiterated the rule earlier established that a suit filed by a disaffected federal prisoner against the Board of Parole in the District of Columbia would normally be transferred to the District where the prisoner was actually incarcerated. But the Court, in order to emphasize that Lorton was a part of the judicial system of the District of Columbia, indicated that a different rule would apply if the prisoner were incarcerated at Lorton and that jurisdiction in the District of Columbia would be retained in a suit involving an inmate of Lorton. Thus, the Court said (367 F.2d at p. 333, n. 8): 'Of course, were the district court to find that some other district would best suit 'the convenience of parties and witnesses' or 'the interest of justice' in a given case, today's decision would not preclude a transfer to such court. Similarly, because of its unique relationship to the District of Columbia, different considerations may well apply to actions instituted by inmates of the Lorton Reformatory, Lorton, Virginia. 6 In their answer as well as in argument in this Court, the defendants have argued that the preferable forum for this controversy is the Superior Court of the District of Columbia under the terms of the District Court Reform Act. The actions pending in the District of Columbia are, however, in the District Court and that is the only court to which the District Court, under the terms of Section 1404, can transfer this action. Whether the District Court of the District of Columbia chooses to or can itself transfer jurisdiction to the Superior Court is a matter better resolved by that Court, with its superior acquaintance with the District Court Reform Act

11 A.3d 1026 (2010) COM. v. GRIFFIN. No. 295 MDA 2009. Superior Court of Pennsylvania. August 16, 2010. Affirmed.

961 F.2d 1577 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.John E. KENEALY, Plaintiff-Appellant,v.Jack BRESLIN; Donald Chamberlain; Frank Coyer, Jr.;Russell Howell; Robert Rowan; Francis Sehan; T. NealCombs; Leon Alexander; John Grace; John McCabe; ThomasReghanti; James Wilkerson; and Dean Richardson, Defendants,v.FRUEHAUF CORPORATION; K-H Corp; and Robert Siefert,Defendants-Appellees. Nos. 90-1461, 90-1569. United States Court of Appeals, Sixth Circuit. April 29, 1992. Before DAVID A. NELSON, BOGGS and KRUPANSKY, Circuit Judges. PER CURIAM: 1 The plaintiff-appellant, John E. Kenealy, has initiated this consolidated pro se appeal from the district court's order dismissing without prejudice his complaint against certain individual defendants for failure to effect service of process and from a grant of summary judgment in favor of those defendants who entered an appearance and answered the complaint, the K-H Corporation and Robert Siefert.1 2 In his complaint, Kenealy sought to maintain an action for damages founded on civil contempt for the alleged violation by the corporation and its officers and directors of a preliminary injunction issued on July 24, 1986 in Plaza Securities v. Fruehauf Corporation, 643 F.Supp. 1535 (E.D.Mich.1986), modified, Edelman v. Fruehauf Corporation, 798 F.2d 882 (6th Cir.1986). Kenealy was not a party to that case. The case, including the injunction, was dismissed with prejudice pursuant to the stipulation of the parties on August 22, 1986. 3 The district court permitted Kenealy to proceed in forma pauperis and ordered the United States Marshal to serve the summons and complaint without prepayment of costs. Kenealy apparently supplied the United States Marshal with an incorrect address for the corporation's offices, and none of the defendants acknowledged receipt of the summons and complaint. Three months after the faulty summons and complaint were mailed by the United States Marshal pursuant to the court order, the district court, on December 19, 1989, at the conclusion of a show cause hearing, advised Kenealy that the case would be dismissed if service was not effected within thirty days from the date of the hearing. 4 Kenealy did not perfect service, although he did file a motion for default judgment. On March 12, 1990, the district court denied the default motion for failure to effect service of the summons and complaint as required by Fed.R.Civ.P. 4(c)(2)(C)(i), 4(c)(2)(C)(ii), or 4(d)(1). The complaint was dismissed without prejudice pursuant to Fed.R.Civ.P. 4(j) as to those defendants who had not acknowledged service. On February 28, 1990, the K-H Corporation and Robert Siefert filed a motion for summary judgment which was granted by the court on April 16, 1990. 5 This court assumed jurisdiction over the Fed.R.Civ.P. 4(j) dismissal pursuant to Gillis v. United States Dep't of HHS, 759 F.2d 565, 569 (6th Cir.1985). The district court did not abuse its discretion in dismissing the complaint. In addition, the complaint was dismissed without prejudice. Kenealy was not barred by the district court's order from refiling his complaint and attempting to effect proper service. 6 Finally, summary judgment was appropriate because there is no genuine issue as to any material fact that would entitle Kenealy to judgment as a matter of law. Fed.R.Civ.P. 56(c). Kenealy has no standing to seek damages under a preliminary injunction that has been dissolved in a case in which he was not a real party in interest and that has been dismissed upon the stipulation of the parties to that action. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535 (1966); Reed v. Rhodes, 635 F.2d 556, 558 (6th Cir.1980), modified, 642 F.2d 186 (6th Cir.1981). Even assuming that Kenealy could surmount the procedural obstacles posed by his attempt to enforce a nonexistent injunction, as a matter of law and fact he was not a "bidder" for the corporation and would not have been embraced by the terms of the injunction while it was in effect. Plaza Securities Co. v. Fruehauf Corp., 643 F.Supp. 1535 (E.D.Mich.1986), modified, Edelman v. Fruehauf Corp., 798 F.2d 882 (6th Cir.1986). Thus, the final judgment of the district court is AFFIRMED in its entirety. 1 The corporate name was changed from "Fruehauf Corporation" to "K-H Corporation" on June 22, 1989

918 F.2d 174Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Lamar PERRYMAN,v.John D. PARKER, Clarence L. Jackson, Lewis W. Hurst, theVirginia Parole Board, Members, Defendants-Appellees. No. 90-6109. United States Court of Appeals, Fourth Circuit. Submitted Oct. 29, 1990.Decided Nov. 16, 1990. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-90-241-AM) Lamar Perryman, appellant pro se. E.D.Va. AFFIRMED. Before WIDENER, PHILLIPS and WILKINSON, Circuit Judges. PER CURIAM: 1 Lamar Perryman appeals from the district court's order dismissing his 42 U.S.C. Sec. 1983 suit without prejudice. Our review of the record discloses that this appeal is without merit.* Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. 2 AFFIRMED. * The district court dismissed Perryman's suit without prejudice for failure to exhaust administrative remedies. The administrative exhaustion requirement is not applicable in this case because Perryman's suit is against the Virginia Parole Board and does not concern prison conditions. However, because Perryman seeks to challenge the "denial of parole release," his claim appears to seek release from his confinement. Such a claim is subject to the exhaustion requirement of 28 U.S.C. Sec. 2254(d). See Todd v. Bakerville, 712 F.2d 70 (4th Cir.1983). Therefore, Perryman must file a petition for a writ of habeas corpus in Virginia court, see Va.Code Ann. Secs. 8.01-654, 17-97, refiling his federal claim

523 So.2d 1338 (1988) Roland N. ROZAS, M.D. v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, State of Louisiana, et al. No. 88-C-0845. Supreme Court of Louisiana. May 6, 1988. Denied. LEMMON, J., would grant the writ.

Matter of Matsen v Matsen (2018 NY Slip Op 03836) Matter of Matsen v Matsen 2018 NY Slip Op 03836 Decided on May 30, 2018 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 30, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. ROBERT J. MILLER VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ. 2017-07042 (Docket Nos. V-5145-16, V-5146-16, V-5856-16, V-5857-16, V-848-17, V-849-17) [*1]In the Matter of Drew W. Matsen, respondent, vMegan E. Matsen, appellant. Kelley M. Enderley, P.C., Poughkeepsie, NY, for appellant. Jonna Spilbor Law, Poughkeepsie, NY (Anthony C. Cillis of counsel), for respondent. Gary E. Eisenberg, New City, NY, attorney for the children. DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Dutchess County (Tracy C. MacKenzie, J.), dated June 28, 2017. The order, insofar as appealed from, after a hearing, denied the mother's petition for permission to relocate with the parties' children to Ridgefield, Connecticut, denied the mother's separate petition alleging that the father violated the parties' stipulation of settlement as incorporated into the judgment of divorce, and granted, in part, the father's petition to modify the judgment of divorce so as to award him sole legal and physical custody of the children. ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying the mother's petition for permission to relocate with the parties' children to Ridgefield, Connecticut, and substituting therefor a provision granting that petition, and (2) by deleting the provision thereof granting, in part, the father's petition to modify the judgment of divorce so as to award him sole legal and physical custody of the children, and substituting therefor a provision denying the father's petition in its entirety; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Dutchess County, to establish, with all convenient speed, an appropriate physical access schedule for the father in accordance herewith. The mother and the father are the parents of two children, who are now seven and five years old, respectively. The parties were divorced by judgment entered June 3, 2016, which incorporated, but did not merge, a stipulation of settlement entered into by the parties in May 2016. The stipulation provided, in relevant part, that the parties would share joint legal custody of the children, with physical custody of the children to the mother and frequent physical access to the father, and that the party with whom the children did not have physical access would have daily private, uninterrupted telephone, FaceTime, or Skype calls with the children. The parties also agreed that they would not move more than 40 miles away from each other's residence in Millbrook, New [*2]York. In October 2016, the father filed a petition to modify the judgment of divorce so as to award him sole legal and physical custody of the children on the grounds that the mother notified him that she intended to relocate with the children the following June to Ridgefield, Connecticut, to live with her fiancé. The proposed relocation exceeded the 40-mile limitation to which the parties had agreed and would make compliance with the existing physical access schedule impossible. Thereafter, the mother filed a petition for permission to relocate with the children to Ridgefield and a separate petition alleging that the father had violated the custody arrangement by interfering with her calls with the children. Following a hearing on the petitions, the Family Court denied the mother's petitions and granted the father's petition to the extent of directing, inter alia, that sole custody of the children would be transferred to the father in the event the mother relocated to Ridgefield or any other location which made the current physical access schedule impracticable. The mother appeals. "A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests" (Matter of Caruso v Cruz, 114 AD3d 769, 771; see Matter of Tropea v Tropea, 87 NY2d 727, 741; Matter of DeCillis v DeCillis, 128 AD3d 818, 819; Matter of Doyle v Debe, 120 AD3d 676, 680). The court must consider factors that include, but are not limited to, each parent's reasons for seeking or opposing the move, the quality of the relationships between the children and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the children's future contact with the noncustodial parent, the degree to which the custodial parent's and children's lives may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and children through suitable physical access arrangements (see Matter of Tropea v Tropea, 87 NY2d at 740-741; Matter of Boyd v Ivory, _____ AD3d _____, 2018 NY Slip Op 02457 [2d Dept 2018]; Matter of DeCillis v DeCillis, 128 AD3d at 820; Matter of Doyle v Debe, 120 AD3d at 679-680; Matter of Caruso v Cruz, 114 AD3d at 771). While an agreement of the parties is a factor for consideration, "[n]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interest" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95; see Matter of Gravel v Makrianes, 120 AD3d 815, 816-817; Matter of Shannon J. v Aaron P., 111 AD3d 829, 830; Rheingold v Rheingold, 4 AD3d 406). The court must consider a relocation request on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the children. While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered, it is the rights and needs of the children that must be accorded the greatest weight (see Matter of Tropea v Tropea, 87 NY2d at 739; Matter of Caruso v Cruz, 114 AD3d at 771; Matter of Abbott v Abbott, 96 AD3d 887, 888; Matter of McBryde v Bodden, 91 AD3d 781, 781-782). The Family Court's credibility determinations are entitled to deference, but "this Court's authority is as broad as that of the hearing court, and a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record" (Matter of DeCillis v DeCillis, 128 AD3d at 820 [internal quotation marks omitted]; see Matter of Doyle v Debe, 120 AD3d at 680; Matter of Caruso v Cruz, 114 AD3d at 771-772). Here, the Family Court's determination that the children's best interests would not be served by relocating with the mother to Ridgefield is not supported by a sound and substantial basis in the record. Contrary to the court's conclusion, the mother's testimony did not show that her sole motivation for the relocation was to ease her fiancé's commute. Rather, the evidence demonstrated that the mother also considered the educational and social opportunities for the children, her fiancé's inability to move the businesses he ran in Norwalk, Connecticut, and the feasibility of frequent physical access with the father following the relocation. The evidence demonstrated that both parents have a good relationship with the [*3]children and were involved in their educational and recreational activities. The father did not dispute that the children's educational and social opportunities would be greatly enhanced by the move to Ridgefield. Although the parties agree that the distance of the relocation would impact the father's current physical access schedule, the father's work schedule is flexible, which should afford him the opportunity to participate in the children's activities. Further, the mother planned to work, at most, part time after the move, while she had been working full time in Millbrook. Her increased availability would allow her to better facilitate the children's physical access with the father. In addition, the father will continue to have daily telephone, FaceTime, or Skype calls with the children during the times that the father does not have physical access. A liberal physical access schedule will allow for the continuation of a meaningful relationship between the father and the children (see Matter of Clarke v Boertlein, 82 AD3d 976, 978). Accordingly, the Family Court should have granted the mother's petition for permission to relocate with the children to Ridgefield (see Matter of Tropea v Tropea, 87 NY2d 727; Matter of DeCillis v DeCillis, 128 AD3d at 820-821; Matter of Caruso v Cruz, 114 AD3d at 772) and denied the father's petition to modify the judgment of divorce so as to award him sole legal and physical custody of the children in its entirety. We agree with the Family Court's determination denying the mother's petition alleging that the father violated the parties' stipulation of settlement as incorporated into the judgment of divorce. Contrary to the mother's contention, she failed to establish that the father willfully violated a clear and unequivocal mandate of the court pertaining to her calls with the children (see Matter of Wright v McIntosh, 125 AD3d 679, 680; Matter of Terry v Oliver, 63 AD3d 1079, 1080). BALKIN, J.P., MILLER, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

511 F.3d 334 (2008) Herbert COUSIN, Petitioner-Appellant, v. Floyd G. BENNETT, Respondent-Appellee. Docket No. 03-2837-pr. United States Court of Appeals, Second Circuit. Argued: April 10, 2007. Decided: January 4, 2008. *335 Julia Pamela Heit, New York, NY, for Appellant. Guy Arcidiacono, Assistant District Attorney, Suffolk County, Riverhead, N.Y. (Thomas J. Spota, District Attorney of Suffolk County, on the brief), for Appellees. Before: LEVAL, CABRANES, RAGGI, Circuit Judges. LEVAL, Circuit Judge: Petitioner, Herbert Cousin, appeals from an order of the United States District Court for the Eastern District of New York (Weinstein, J.), denying a petition for habeas corpus under 28 U.S.C. § 2254. Petitioner sought to vacate a New York State court conviction on the ground that the New York courts misapplied Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when they found that petitioner failed to make a prima facie showing of racial motivation. We affirm the district court's ruling. The New York State Supreme Court, Appellate Division's rejection of petitioner's claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court rulings. See 28 U.S.C. § 2254(d)(1). BACKGROUND Petitioner was indicted in Suffolk County, New York, on one count of first degree rape and one count of second degree assault. The jury was selected by calling successive panels of jurors for voir dire. Before being called into the jury box, all prospective jurors filled out a questionnaire which asked, among other things, the juror's occupation, whether the juror had ever been accused of a crime or had ever been the victim of a crime, and whether the juror had served on a jury before. The trial judge began by placing eighteen prospective jurors in the jury box, and conducting a voir dire, asking each of the eighteen a few questions. The court then allowed the prosecutor and defense lawyer to ask further questions. Upon completion of the voir dire, the court invited challenges for cause (none were asserted) and peremptory challenges against the first twelve jurors. The prosecutor struck four prospective jurors, and the defense struck six. The court then invited challenges against the remaining jurors (numbers *336 13 through 18). No challenges for cause were exercised. The prosecutor then peremptorily struck two jurors, and the defense counsel three. Thus at the end of the first round, three jurors out of the eighteen had been qualified. For the second round, twenty-two prospective jurors were placed in the jury box and questioned. Because three jurors had already been qualified, the court invited challenges to the first nine jurors from the new group. The prosecutor raised a challenge for cause, which the judge denied. The prosecutor then peremptorily struck three prospective jurors, and defense counsel struck four. The two remaining from the panel were then seated, bringing the total of seated jurors to five. The judge then repeated the same process with the next seven jurors: numbers ten through sixteen. The defense counsel unsuccessfully challenged one juror for cause. The prosecutor then peremptorily struck two jurors, and the defense counsel struck one. Four additional jurors were then seated for trial, bringing the total of selected jurors to nine. The process was then repeated with the next three jurors, all of whom were peremptorily struck (two by the prosecutor and one by the defense), and again with the last three jurors (one of which was struck by the prosecutor). This brought the total number of seated jurors to eleven, with only one more needed to complete the main jury of twelve. The following day, a new panel of jurors was brought into the courtroom. Eighteen were placed in the jury box and questioned. Bonita Smith, who was African-American, was the first of the new eighteen. Upon completion of the questioning of the new eighteen, the court invited challenges to one juror at a time, as only one was needed to complete the main jury of twelve. The court began with Ms. Smith, because she was in the first seat. Neither lawyer challenged Smith for cause. The court then asked the prosecutor whether he would peremptorily challenge juror Smith, which the prosecutor answered in the affirmative. The defense immediately raised a Batson objection, arguing that "[o]ut of the entire jury pool we have had, this is the only Afro-American that's been seated. She said absolutely nothing that I can see that would persuade the District Attorney's Office to kick her off, and it seems to me that it is clear the only reason the district attorney's elected to knock her off is because she is black, and my client is also black." It is apparently undisputed that Smith was the only African-American to have been placed in the jury box for questioning. In response to the defendant's Batson objection the judge asked, "Don't you have to [show] a pattern of that, though?" Defense counsel answered that he could not establish a pattern of discriminatory challenges because there had been only one African-American called for voir dire, making it impossible for the prosecutor to have challenged more than one African-American. Defense counsel further argued in support of his objection that Smith had "stated the victim [who] was robbed is a clerk," a (possibly mis-transcribed) reference to the fact that Smith had stated during voir dire that her mother, a toll booth clerk, had been robbed. The judge then asked the prosecutor if he wanted to "put anything on the record as to the reason" for challenging Smith. The prosecutor declined to do so. The trial judge then stated, "I can't establish a pattern from only one person. So . . . I will deny your Batson application." Smith was thus excused. The judge then invited challenges to the juror in the second seat. There were no challenges, so that this juror became the twelfth and final *337 juror. Four alternates were then selected, and the following day the trial began. Petitioner was convicted of first degree rape and second degree assault and was sentenced to twenty-five years to life on both counts. Petitioner appealed to the Appellate Division, which affirmed the conviction. People v. Cousin, 272 A.D.2d 477, 707 N.Y.S.2d 676 (2000). As to petitioner's Batson claim, the Appellate Division reasoned: Contrary to the defendant's contentions on appeal, the fact that the prosecutor peremptorily challenged the only black potential juror to be questioned during voir dire was insufficient, without more, to establish a prima facie case of purposeful discrimination. The defendant did not articulate a sound factual basis for his Batson claim, as he failed to establish the existence of facts and other relevant circumstances giving rise to an inference of purposeful discrimination. Id. at 478, 707 N.Y.S.2d 676 (citations omitted). Leave to appeal to the New York Court of Appeals was denied. People v. Cousin, 95 N.Y.2d 851, 714 N.Y.S.2d 2, 736 N.E.2d 863 (2000) (Rosenblatt, J.). Petitioner moved in the Eastern District to set aside the conviction under § 2254. The district court denied the petition. As to the Batson claim, the court ruled that the state court decisions were in accord with federal law and petitioner had failed to make a prima facie showing of racial motivation in support of his Batson objection. Cousin v. Bennett, No. 01 Civ. 6060 (E.D.N.Y. Sept.4, 2003). We granted a certificate of appealability on petitioner's Batson claim only, and now affirm the judgment of the district court. DISCUSSION The Equal Protection Clause of the Constitution forbids a prosecutor from challenging jurors solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the Supreme Court outlined a three-part burden-shifting framework that trial courts must use to determine whether a prosecutor unconstitutionally excluded a potential juror on the basis of race. 476 U.S. at 86-87, 96-98, 106 S.Ct. 1712. First, the defendant must make a prima facie showing, based on "any . . . relevant circumstances," that the government's peremptory challenge was racially motivated. Id. at 96-97, 106 S.Ct. 1712. The Court noted, as examples, that a pattern of exercising strikes against jurors of a particular race, or a prosecutor's racially-biased questions and statements during voir dire, might be sufficient to establish a prima facie case. Id. at 97, 106 S.Ct. 1712. Second, if the defendant makes such a prima facie showing of racial motivation, the prosecutor is required to give a race-neutral explanation for the peremptory challenge. Id. at 97, 106 S.Ct. 1712. Third, if the prosecutor gives a race-neutral explanation, the trial court must then determine whether the defendant has established that the peremptory challenge was motivated by race. Id. at 98, 106 S.Ct. 1712. Petitioner claims that he is entitled to habeas corpus relief because the New York state courts misapplied the first step in Batson's three-part test. Habeas corpus relief is not warranted, however, unless the state court "unreasonably" applied law as established by the Supreme Court in ruling on petitioner's claim, or made a decision that was "contrary to" it. See 28 U.S.C. § 2254(d)(1); see also Overton v. Newton, 295 F.3d 270, 276-77 (2d Cir.2002) (whether prima facie case has been shown is a "mixed question of law and fact," subject to § 2254(d)(1) standard). More fundamentally, habeas corpus relief is not warranted unless the petitioner can show that he is in custody in violation of federal *338 law. See 28 U.S.C. § 2254(a). We conclude that the district court was correct in denying the petition. Petitioner argues that the fact of the prosecutor's challenge to the only African-American prospective juror to be called for voir dire was sufficient to establish a prima facie showing that the challenge was racially motivated. We disagree. Petitioner is correct that Batson forbids the exclusion of even one juror on the basis of race. See Green v. Travis, 414 F.3d 288, 297 (2d Cir.2005) (citing Powers v. Ohio, 499 U.S. 400, 409, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)). Thus a "pattern" of discriminatory exclusions is not required for a prima facie showing, and the exclusion of a single juror could, in circumstances tending to show racial motivation, be sufficient. A trial court evaluating whether a prima facie showing has been made must consider "all relevant circumstances." Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. Among other factors, the manner in which a prosecutor exercises peremptory strikes may be relevant to whether a prima facie showing was made. For example, if a prosecutor who possessed no information about prospective jurors other than what was visible from their appearance, proceeded to challenge the only African-American juror in a venire of sixty, or if a prosecutor's remarks or questions in the course of exercising a single challenge indicated racial motivation, the single challenge might well be sufficient to sustain a prima facie showing of a Batson violation. The circumstances of this case, however, were quite different. As explained above, by the time the prosecutor challenged Smith, he had already challenged fourteen (non-African-American) prospective jurors. The prosecutor, furthermore, did not select Smith for challenge out of a larger number of jurors. At the time the prosecutor challenged her, she was the only juror eligible to be challenged. Finally, the prosecutor had received information about each of the jurors, including Smith, from their questionnaires and then answers during voir dire, which information could have informed his decision. In other words, although there are no doubt circumstances in which a prosecutor's challenge of the only prospective juror of a particular race could give rise to a sufficiently strong inference of racial motivation to make a prima facie showing, the present facts do not give sufficient support to such an inference. See United States v. Bergodere, 40 F.3d 512, 516 (1st Cir.1994) ("[T]he mere fact that the prosecutor challenges the only juror of a particular race, without more, does not automatically give rise to an inescapable inference of discriminatory intent."); United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994) ("[T]he fact that the juror was the one Black member of the venire does not, in itself, raise an inference of discrimination."); cf. DeBerry v. Portuondo, 403 F.3d 57, 69 (2d Cir.2005) (trial court did not err by finding that a challenge to the only African-American juror in that round of jurors did not raise a prima facie case of racial motivation). But see United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir.1989) (concluding that a prima facie case was made when "there was one potential American Indian juror and that juror was struck"); United States v. Chalan, 812 F.2d 1302, 1313-14 (10th Cir.1987) (finding that where, "[i]n effect," three out of four American-Indian prospective jurors were removed for cause "and the last Indian member of the panel was stricken by the Government through a peremptory challenge," these circumstances establish a prima facie case). *339 Petitioner is correct in arguing that the trial judge misunderstood Batson in suggesting that a "pattern" of discriminatory strikes must be shown in order for the defendant to make a prima facie showing of racial motivation. The Batson opinion cited a "pattern" of strikes only as an example of how the inference might be suggested. Batson clearly contemplates that a prima facie showing of race motivation may arise from a single challenge if the circumstances sufficiently suggest the inference of race motivation. See Batson, 476 U.S. at 97, 106 S.Ct. 1712. Nonetheless, even assuming that the trial judge's reasoning was erroneous, habeas corpus relief is not warranted. Federal courts may not grant a writ of habeas corpus under § 2254 unless the prisoner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Even if the state court issued a decision "contrary to" clearly established Supreme Court law, see id. at § 2254(d)(1), a petitioner "cannot obtain relief on his Batson claim unless application of a correct interpretation of that decision leads to the conclusion that his rights were violated." Bronshtein v. Horn, 404 F.3d 700, 724 (3d Cir.2005) (Alito, J.) (emphasis added). Because petitioner did not make a prima facie showing of racial motivation, his rights under the Equal Protection Clause were not violated when the trial judge denied his Batson objection, notwithstanding the state trial judge's misunderstanding of the rule. Therefore habeas corpus relief cannot be granted.[1] Moreover, the decision of the Appellate Division, which superseded the trial judge's ruling, was not contrary to, nor did it involve an unreasonable application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1). The Appellate Division did not repeat the trial judge's erroneous view that a "pattern" of discriminatory strikes was a prerequisite to making a prima facie showing of racial motivation. Instead, the court explained: "the fact that the prosecutor peremptorily challenged the only black potential juror to be questioned during voir dire was insufficient, without more, to establish a prima facie case. . . . [The defendant] failed to establish the existence of facts and other relevant circumstances giving rise to an inference of purposeful discrimination." Cousin, 272 A.D.2d at 478, 707 N.Y.S.2d at 676-77. Petitioner has cited to no Supreme Court case, nor can we find any, that would require a different outcome or *340 analysis. In fact, the Appellate Division's analysis was consistent with Batson, which requires that the petitioner show "relevant circumstances" raising an inference of discrimination in order to make a prima facie case. Batson, 476 U.S. at 96, 106 S.Ct. 1712. Neither Batson nor any other Supreme Court decision required the Appellate Division to remand the case to the trial court based on the trial court's misstatements of Batson's requirements. The record was sufficient to permit the appellate court to arrive independently at the conclusion that petitioner had not made out a prima facie case. See Moody v. Quarterman, 476 F.3d 260, 267-68, 272 (5th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 88, ___ L.Ed.2d ___ (2007) (denying habeas corpus relief because, while the state trial court erroneously failed to conduct the three-step Batson test, the state appeals court "did so in its stead," and although "we might disagree with the [state appeals court's] failure to remand the case to the trial court," the decision of the state appeals court was not unreasonable). CONCLUSION Petitioner failed to make a prima facie showing that the prosecutor's exclusion of prospective juror Smith was racially motivated. Because the petitioner is not in state custody in violation of federal law, and because the state appellate court decision was not "contrary to," nor did it involve "an unreasonable application of," clearly established Supreme Court law, 28 U.S.C. § 2254(d)(1), habeas corpus relief may not be granted. The judgment of the district court is affirmed. NOTES [1] Petitioner also argues that a prima facie case was made because there was no obvious reason for the government to challenge Smith. See Pet'r. Br. at 8, 11. This argument is unavailing. The absence of an obvious race-neutral reason for excluding a juror is not sufficient to establish a prima facie showing of racial motivation. See United States v. Allison, 908 F.2d 1531, 1538 (11th Cir.1990) ("In making out a prima facie case, `the defendant must point to more than the bare fact of the removal of certain venirepersons and the absence of an obvious valid reason for the removal.'") (quoting United States v. Young-Bey, 893 F.2d 178, 180 (8th Cir.1990)). A party's valid reasons for exercising a peremptory challenge are often not apparent without explanation, and explanation is not required unless a prima facie showing of an improper motivation has been made. Before the trial court, defense counsel also argued that a prima facie showing was made because Smith should have been acceptable to the prosecution as the relative of a crime victim. Petitioner has not pressed this point on appeal, either in the state or federal courts. In any case, we are not persuaded that Smith's relation to a crime victim suggests that the prosecutor's challenge was racially motivated, especially given that the prosecutor challenged a number of non-African-American crime victims and relatives of crime victims, as to whom there was no other obvious reason for the challenge.

87 F.3d 1313 In Matter of Ann Sidwell Fatheree NO. 95-10666 United States Court of Appeals,Fifth Circuit. Feb 09, 1996 Appeal From: N.D.Tex., No. 2:90-CV-82 1 AFFIRMED.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 97-1456 ___________ Double D Spotting Service, Inc., * * Plaintiff-Appellant, * Appeal from the United States * District Court for the v. * Southern District of Iowa. * Supervalu, Inc.; World Super * Services, Inc., * * Defendants-Appellees. * ___________ Submitted: October 23, 1997 Filed: February 11, 1998 ___________ Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges. ___________ HANSEN, Circuit Judge. Double D Spotting Service, Inc. (Double D) brought this suit against Supervalu, Inc. (Supervalu) and World Super Services, Inc. (World Super Services), alleging that the defendants violated federal antitrust laws, state competition laws, and a federal motor carrier law. The district court dismissed Double D’s complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). We affirm in part and reverse in part.  I. When reviewing a Rule 12(b)(6) dismissal for failure to state a claim, we look only to the facts alleged in the complaint and construe them in the light most favorable to the plaintiff. See Doe v. Norwest Bank Minnesota, N.A., 107 F.3d 1297, 1303-04 (8th Cir. 1997). In its amended and substituted complaint, Double D pleaded that until 1996, it had been in the business of competing with other companies to provide semitrailer unloading services for over the road trucking companies that deliver goods to the Supervalu warehouse in Urbandale, Iowa. The semitrailers travel in interstate commerce, carrying goods that are unloaded at the Supervalu warehouse and subsequently shipped to grocery stores in several states. In addition to unloading trucks driven to the warehouse by the trucking company drivers, Double D offered trucking companies a more involved unloading service. By agreement with Double D, the trucking company could drop its loaded, unhooked semitrailer at a nearby interstate truck stop. A Double D driver driving a Double D tractor would then hook on to the trailer and transport it to the Supervalu warehouse. The Double D driver would then unload the semitrailer and return it empty to the same truck stop location for the over the road trucking company to retrieve at its convenience. This service allowed the over the road trucking company to save the time and expense of paying its own driver both to deliver the semitrailer to the warehouse and to wait for it to be unloaded. It also freed up the trucking company’s tractor for other work. In 1996, Supervalu entered into an agreement granting World Super Services the exclusive right to provide unloading services at the Urbandale warehouse. The agreement provided fixed prices to be charged by World Super Services and barred all other unloading companies from performing any unloading services at the Urbandale warehouse. Thereafter, trucking companies could choose either to unload their own trucks at the warehouse or to hire World Super Services to unload them. Double D complains that the agreement between Supervalu and World Super Services wrongfully -2- eliminated competition and imposed an unreasonable restraint on the unloading services trade at Supervalu’s Urbandale warehouse. Double D originally brought suit against Supervalu and World Super Services in state court, seeking an injunction and damages for the defendants’ alleged restraint of trade and competition in violation of state and federal antitrust law and for alleged tortious interference with Double D’s business relationships. The defendants removed the case to federal district court and moved to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Double D filed an amended and substituted complaint in federal district court, alleging in counts I through IV that the defendants contracted to restrain trade in violation of Iowa Code § 553.4 (1997) and Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (1994); and that they attempted to establish a monopoly in violation of Iowa Code § 553.5 and Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2. Count V alleges a violation of 49 U.S.C.A. § 14103(b) (West 1997), which prohibits the act of coercing any motor carrier operator to pay someone to load or unload the property being transported in interstate commerce. The district court granted the defendants’ motion to dismiss. The court held that Double D failed to state a claim of restraint of trade or monopoly as alleged in counts I through IV, concluding that the facts as alleged do not constitute a legally cognizable relevant market or demonstrate an actual adverse impact on competition within that market. Additionally, the district court concluded that count V, asserting coercion of a ?person providing transportation of property by motor vehicle for compensation in interstate commerce,” fails to state a claim because there is no allegation that any trucking companies were forced or coerced to pay World Super Services to unload their semitrailers. Double D appeals the dismissal of its complaint. -3-  II. We review de novo the district court’s grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Association of Commonwealth Claimants v. Moylan, 71 F.3d 1398, 1402 (8th Cir. 1995). Using the same standard as the district court, we must accept the factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff. Doe, 107 F.3d at 1303-04. We affirm a Rule 12(b)(6) dismissal if ?it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996) (internal quotations omitted), cert. denied, 117 S. Ct. 1081 (1997). A. Antitrust Claims The first four counts of Double D’s complaint allege violations of state and federal antitrust law. Two counts are based on the Sherman Antitrust Act, which declares it unlawful to contract or form a conspiracy ?in restraint of trade or commerce among the several States,” 15 U.S.C. § 1, and which makes it a felony to ?monopolize, or attempt to monopolize . . . any part of the trade or commerce among the several States,” 15 U.S.C. § 2. Two counts are based on Iowa statutes that mirror these federal prohibitions, absent the interstate commerce element. See Iowa Code §§ 553.4, 553.5.1 ?The essential elements of a private antitrust claim must be alleged in more than vague and conclusory terms to prevent dismissal of the complaint on a defendant’s [Rule] Section 553.4 provides, ?A contract, combination , or conspiracy between two 1 or more persons shall not restrain or monopolize trade or commerce in a relevant market.” Section 553.5 provides, ?A person shall not attempt to establish . . . a monopoly of trade or commerce in a relevant market for the purpose of excluding competition or of controlling, fixing, or maintaining prices.” -4- 12(b)(6) motion.” Crane & Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 805 (6th Cir. 1988). The district court concluded that Double D’s antitrust claims failed to state a claim because Double D failed to plead a valid relevant market. Double D contends that it was not required to plead a relevant market because it pleaded per se antitrust violations. Alternatively, Double D asserts that even if it was necessary for it to plead a relevant market, the Supervalu warehouse in Urbandale itself is the relevant market for trailer unloading services. To demonstrate a violation of section 1 of the Sherman Act, a plaintiff must provide proof of an illegal contract, combination, or conspiracy which results in an unreasonable restraint of trade. State Oil Co. v. Khan, 118 S. Ct. 275, 279 (1997). ?[M]ost antitrust claims are analyzed under a <rule of reason,’ according to which the finder of fact must decide whether the questioned practice imposes an unreasonable restraint on competition.” Id. This ?rule of reason” analysis involves an inquiry into the market structure and the defendant’s market power in order to assess the actual effect of the restraint. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768 (1984); see also Flegel v. Christian Hosp., Northeast-Northwest, 4 F.3d 682, 688 (8th Cir. 1993). Certain types of restraint are so inherently anticompetitive that they are illegal per se, without inquiry into the reasonableness of the restraint or the harm caused. Copperweld Corp., 467 U.S. at 768; see also Khan, 118 S. Ct. at 279. ?It is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act.” United States v. Topco Assocs., 405 U.S. 596, 607-08 (1972). ?Per se treatment is appropriate once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it.” Khan, 118 S. Ct. at 279 (internal quotations and alterations omitted). -5-  Practices which have been held to be illegal per se include price- fixing, division of markets, group boycotts, and tying arrangements. See Arizona v. Maricopa County Med. Soc., 457 U.S. 332, 344 n.15 (1982); Northern Pac. Ry. v. United States, 356 U.S. 1, 5 (1958). The district court concluded that under a liberal construction of the factual circumstances pleaded, Double D failed to plead circumstances under which it could prove a per se antitrust violation. We agree. In support of its contention that it has pleaded per se violations, Double D contends that the agreement between Supervalu and World Super Services amounts to a horizontal restraint of trade, which the Supreme Court has described as a ?naked restraint[] of trade with no purpose except stifling of competition.” Topco, 405 U.S. at 608 (internal quotations omitted). Horizontal restraints of trade result when combinations of traders at one level of the market structure agree to exclude direct competitors from the same level of the market. See id. Thus, a plaintiff alleging a horizontal restraint must at least define the market and its participants, which, for reasons discussed below, Double D has failed to do. Supervalu is not a participant in the unloading services market at the same level as Double D or World Super Services. Furthermore, for reasons discussed more fully below, we conclude that Supervalu’s agreement with World Super Services has no improper effect of restraining trade in the relevant unloading services market, because Double D has failed to plead a valid relevant market. Thus, Double D has not stated a claim of a per se horizontal restraint of trade. Double D asserts that it has also alleged vertical price-fixing as a per se violation. Vertical restraints of trade result from agreements among ?combinations of persons at different levels of the market structure, e.g., manufacturers and distributors.” Id. Vertical nonprice restrictions are governed by the rule of reason and are not per se violations, because they ?promote interbrand competition by allowing the manufacturer to achieve certain efficiencies in the distribution of his products.” Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 54 (1977). We have noted that vertical -6- refusals to deal are subject to the rule of reason unless they are price- related ?or are designed to enforce underlying restrictions that would otherwise be subject to per se analysis,” such as an illegal tying arrangement. Lomar Wholesale Grocery, Inc. v. Dieter’s Gourmet Foods, Inc., 824 F.2d 582, 590 (8th Cir. 1987), cert. denied, 484 U.S. 1010 (1988). Generally, vertical price restrictions are per se antitrust violations. Business Elec. Corp. v. Sharp Elec. Corp., 485 U.S. 717, 735-36 (1988) (?A vertical restraint is not illegal per se unless it includes some agreement on price or price levels.”). Recently, however, the Supreme Court has clarified that vertical maximum price-fixing is not a per se violation but is subject to the rule of reason. See Kahn, 118 S. Ct. at 283. Double D asserts that the agreement between Supervalu and World Super Services is one fixing prices between market participants at different levels of the market structure and therefore amounts to a vertical per se price-fixing violation. We disagree. The agreement at issue does not fix prices between different levels of the market structure. Instead, the agreement fixes the price that one unloading service provider can charge at Supervalu’s one warehouse in Urbandale, Iowa. Such an arrangement does not amount to an unlawful restraint between different levels of the market structure. Rather, it demonstrates an isolated agreement concerning Supervalu’s operation of its warehouse. Double D has not stated a claim of a per se vertical price- fixing violation. Double D also asserts that it has stated an unlawful tying arrangement. ?A tying arrangement is <the sale or lease of one item (the tying product) on the condition that the buyer or lessee purchase a second item (the tied product) from the same source.’” Marts v. Xerox, Inc., 77 F.3d 1109, 1112 (8th Cir. 1996) (quoting Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1498 (8th Cir. 1992)), cert. denied, 506 U.S. 1080 (1993)). ?[A] per se illegal tying arrangement does not exist unless the defendant has coerced buyers into purchasing a product [or service] which such buyers otherwise would not have purchased or would have purchased from a different source than the defendant.” Amerinet, 972 F.2d at 1499. In this case, Double D asserts that a tying arrangement arose because trucking companies who deliver trailers to Supervalu’s -7- Urbandale warehouse (the alleged tying service) and who want to use an unloading service have no choice but to use World Super Service’s unloading service (the alleged tied service). Double D’s attempt to define this situation as a tying arrangement is unsuccessful. The trucking companies always remain free to unload their own trucks, and they are not coerced into hiring World Super Service’s third-party unloading service. Furthermore, to demonstrate a per se tying violation the plaintiff must show that the defendant has sufficient market power in the tying product or service market to restrain competition. Marts, 77 F.3d at 1112. As we will discuss below, Double D’s complaint fails to plead a valid relevant market, and thus Double D could not demonstrate sufficient market power necessary to state or sustain a tying violation. Because no per se violation is established, it is necessary for Double D to allege a valid relevant market in order to apply the rule of reason analysis to determine whether the arrangement amounts to an unreasonable restraint of trade within the meaning of section 1 of the Sherman Act. As we noted above, the ?rule of reason” analysis involves ?an inquiry into market power and market structure” to assess the actual effect of the restraint. Copperweld Corp., 467 U.S. at 768. Double D must also allege a valid relevant market in order to prevail on its monopoly claim. Section 2 of the Sherman Act requires a plaintiff to plead and prove that the defendant ?(1) possessed monopoly power in the relevant market and (2) willfully acquired or maintained that power as opposed to gaining it as a result <of a superior product, business acumen, or historical accident.’” Amerinet, 972 F.2d at 1490 (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966)). Thus, in order to state a Sherman Act claim under either section 1 or section 2, the plaintiff must identify a valid relevant market. See Brader v. Allegheny Gen. Hosp., 64 F.3d 869, 877 (3d Cir. 1995); Tunis Bros. Co. v. Ford Motor Co., 952 F.2d 715, 726 (3d Cir. 1991), cert. denied, 505 U.S. 1221 (1992). We note that courts are hesitant to dismiss antitrust actions before the parties have had an opportunity for discovery, because the proof of illegal conduct lies largely -8- in the hands of the alleged antitrust conspirators. Huelsman v. Civic Ctr. Corp., 873 F.2d 1171, 1174 (8th Cir. 1989). A dismissal on the pleadings should be ?<granted sparingly and with caution.’” Id. (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1349 (1969)). Most often, ?proper market definition can be determined only after a factual inquiry into the commercial realities faced by consumers.” Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 436 (3d Cir. 1997), petition for cert. filed (Jan. 5, 1998). This general rule, however, does not amount to ?a per se prohibition against dismissal of antitrust claims for failure to plead a relevant market under Fed. R. Civ. P. 12(b)(6).” Id. It is the plaintiff’s burden to define the relevant market. Id. ?Antitrust claims often rise or fall on the definition of the relevant market.” Bathke v. Casey’s Gen. Stores, Inc., 64 F.3d 340, 345 (8th Cir. 1995). ?The definition of the relevant market has two components - a product market and a geographic market.” Id. The relevant product market includes all reasonably interchangeable products. See Queen City Pizza, 124 F.3d at 436. The geographic market is defined by considering the commercial realities faced by consumers. Bathke, 64 F.3d at 345. It includes the geographic area in which consumers can practically seek alternative sources of the product, and it can be defined as ?the market area in which the seller operates.” Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327 (1961); see Bathke, 64 F.3d at 345. In each of the four antitrust counts of its complaint, Double D states that Supervalu and World Super Services engaged in anticompetitive activity within the relevant market ?for unloading services at the Supervalu, Inc. warehouse in Urbandale, Iowa.” (Appellant’s App. at 26, 31, 34, and 36.) Thus, the product market is defined as unloading services and the geographic market is alleged to be the Supervalu warehouse in Urbandale, Iowa, which is a suburb of Des Moines. We agree with the district court that, as a matter of law, this stated geographic market is too narrow to support a claim of an antitrust violation. At issue is one contract between the owner of one particular warehouse within the Des Moines metropolitan area and one -9- unloading service provider. The contract provides that this one unloading service provider has the right, subject to an agreed upon price schedule, to provide all of the unloading services at this particular warehouse. Supervalu’s one warehouse in Urbandale does not amount to a relevant market for unloading services of this type. Rather, the market for unloading services would seem to be more properly defined as including all warehouses within, at least, the entire Des Moines, Iowa, metropolitan area, if not an even larger area. ?<It is axiomatic that the antitrust laws were passed for the protection of competition, not competitors.’” Bathke, 64 F.3d at 344 (quoting Brooke Group, Ltd. v. Brown & Williamson Tobacco, 509 U.S. 209, 224 (1993)) (other internal quotations omitted). As the district court in the present case aptly stated, ?[p]laintiff’s complaint does no more than state plaintiff’s commercial disappointment at losing the unloading business at the Supervalu warehouse.” (Appellant’s Adden. at 6.) Disappointment at not receiving one unloading contract at one particular warehouse is insufficient as a matter of law to rise to the level of an antitrust violation within a relevant market. For the same reasons, the Iowa state law claims pursuant to sections 553.4 and 553.5 of the Iowa Code fail as well. The Iowa Competition Law, Iowa Code §§ 553.1-553.18 (1997), must ?be construed to complement and be harmonized with the applied laws of the United States which have the same or similar purpose as this chapter.” Iowa Code § 553.2. See also State v. Cedar Rapids Bd. of Realtors, 300 N.W.2d 127, 128 (1981). Double D asserts that several material differences exist between the express language of section 553.4 of the Iowa Competition Law and section 1 of the Sherman Act, and likewise between Iowa Code section 553.5 and section 2 of the Sherman Act, which indicate that a smaller relevant market is acceptable under the Iowa Competition Law than the Sherman Act would tolerate. Aside from the lack of an interstate commerce requirement, the wording of the state provisions is very similar to that of their federal counterparts. Our research has produced no Iowa case law dealing with the requirement to plead a relevant market. In an absence of state case -10- law on point, it is necessary to examine the comparable federal statutes and case law, see Cedar Rapids Bd. of Realtors, 300 N.W.2d at 128, which we have done above. We conclude that Double D has not stated a per se violation or valid relevant market under either federal or state law. Accordingly, the district court properly dismissed counts I through IV of the amended and substituted complaint for failure to state a claim. B. Motor Carrier Operator Claim In count V of its complaint, Double D asserts that by precluding it from delivering and unloading semitrailers for trucking companies, Supervalu and World Super Services wrongfully coerced operators of motor carriers into either unloading their semitrailers themselves or employing the only unloading service available, World Super Services, in violation of 49 U.S.C.A. § 14103(b) (West 1997). The district court dismissed this count for failure to state a claim, concluding that Double D lacks standing to bring this claim and that Double D did not allege that any carrier was forced to pay someone else to unload its truck. The court noted that each trucker was free to unload his own truck. Thus, the district court concluded that the conduct alleged was not coercive within the meaning of the statute and failed to state a claim. Double D argues on appeal that the district court’s ruling ignores its pleaded facts that Double D itself has been engaged in providing transportation of property by motor vehicle within the meaning of the statute when it hooks on to the trailer left for it at nearby truck stops and transports it to the warehouse, and that it acts not just as an unloader. Section 14103(b) provides as follows: It shall be unlawful to coerce or attempt to coerce any person providing transportation of property by motor vehicle for compensation in interstate commerce (whether or not such transportation is subject to jurisdiction -11- under subchapter I of chapter 135) to load or unload any part of such property onto or from such vehicle or to employ or pay one or more persons to load or unload any part of such property onto or from such vehicle . . . . The wording of this statute is not limited to protecting only actual trucking companies or registered motor carriers ?under subchapter I of chapter 135.” Id. Instead, the statute says, ?any person providing transportation of property by motor vehicle for compensation in interstate commerce” must be allowed to unload his own truck free of coercion to pay someone else to do the job. Id. (emphasis added). We conclude that Double D’s complaint alleges facts at least sufficient to survive a Rule 12(b)(6) motion to dismiss. As we noted before, Double D alleges that it often provided a service to interstate trucking companies where a Double D driver would transport a semitrailer from a local truck stop to the Supervalu warehouse and would return the semitrailer to the designated location after unloading the truck. Double D has alleged a set of facts which if proved come within the provisions of the statute. Accordingly, we reverse the dismissal of count V and remand for further proceedings. III. Conclusion For the reasons stated above, we affirm the judgment of the district court dismissing counts I through IV of the amended and substituted complaint. We reverse the judgment of the district court dismissing count V and remand to the district court for further proceedings on that count. -12- A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -13- 

43 F.Supp.2d 708 (1999) LOUISIANA-PACIFIC CORPORATION, Plaintiff, v. TEXAS DEPT. OF TRANSPORTATION and Southern Pacific Transportation Company, Defendants. No. 1:98-CV-1516. United States District Court, E.D. Texas, Beaumont Division. March 23, 1999. *709 Joe G. Roady, Sheinfield Maley & Kay, Houston, TX, for plaintiff. Walter C. Brocato, Attorney General Office, Austin, TX, for defendant Texas D.O.T. David P. Young, Houston, TX, Linda C. Schoonmaker, Bayco Gibson Carnegie, Hagan, Schoonmaker & Meyer, Houston, TX, for defendant Southern Pac. AMENDED MEMORANDUM OPINION COBB, District Judge. In the 1880's, Plaintiffs predecessors in title (who owned property in question in fee simple) granted easements for railroad purposes to the Sabine and East Texas Railway Company. Southern Pacific Railway, the current defendant, subsequently acquired these easements.. In 1994, Southern Pacific, pursuant to The National Trails System Act of 1983, 16 U.S.C. § 1247(d) ("Trails Act") conveyed the easements in question to the Texas Department of Transportation. The Trails Act allows a railroad wishing to cease operations on a line to negotiate with, among others, a State or political subdivision to allow the railroad right-of-way to be converted to a public trail. 16 U.S.C. § 1247(d). The purpose of the Act is to increase the number of trails in the United States and to preserve rail corridors for potential future use. The Trails Act treats conversions such as the one at issue in this case as a discontinuance, and not an abandonment (as Plaintiffs try to allege), and retains ICC jurisdiction over the line. Id. (the ICC, or Interstate Commerce Commission, has since been replaced by the Surface Transportation Board, or STB see National Association of Reversionary Property Owners v. Surface Transportation Board, 158 F.3d 135 (D.C.Cir.1998)). In its original petition in state court, Plaintiff alleged that the Trails Act was unconstitutional and that the Defendants' actions constituted a taking without due process of law and consequently a violation of the 5th and 14th Amendments of the United States Constitution. In addition, Plaintiff alleged that Defendants actions violated due process under the Texas Constitution, a takings provision in § 2007.044 of the Texas Code, and also clouded their title to the land. After Plaintiff filed its initial petition, Defendants properly and timely removed to this Court. Plaintiff then filed a motion for leave to amend its complaint (which *710 has not yet been granted), dropping all federal claims and keeping only the state law claims. The question at issue is whether the case in its present posture should be remanded to state court. ANALYSIS The first question to be answered is whether the Court has jurisdiction. Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir.1998). According to Ruhrgas, "the appropriate course is to examine for subject matter jurisdiction constantly and, if it is found lacking, to remand to state court if appropriate, or otherwise dismiss." Ruhrgas at 220 citing Ziegler v. Champion Mortgage Co., 913 F.2d 228 (5th Cir.1990). In this case, the mere fact that Plaintiff here indicated a desire to drop its federal claims does not answer the question whether this Court retains subject matter jurisdiction. In fact, when a Plaintiff drops federal claims and only retains state law claims then the Court has discretion whether to order a remand. In re Ben Carter, 618 F.2d 1093, 1101 (5th Cir. 1980) (holding that a Plaintiff cannot rob the district court of subject matter jurisdiction by electing to amend away the ground for federal jurisdiction). See also St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845. Indeed, it is fundamental that whether subject matter jurisdiction exists is a question answered by looking to the complaint as it existed at the time the petition for removal was filed. Carter at 1101; Pullman Co. v. Jenkins, 305 U.S. 534 537-38, 59 S.Ct. 347, 83 L.Ed. 334. That having been said, the accepted rule in the 5th Circuit is that upon removal the removal court should inspect the complaint to determine whether a federal claim is necessarily presented, even if the plaintiff has couched his pleading exclusively in terms of state law. Carter at 1101; see also Romick v. Bekins Van & Storage Co., 197 F.2d 369 (5th Cir.1952). The reviewing court should look to the substance of the complaint, not merely the labels used in it. Carter at 1101; Smith v. Local 25, Sheet Metal Workers Int'l Ass'n., 500 F.2d 741, 748-49 (5th Cir.1974). At issue in this case, as much as Plaintiffs attempt to deny it, is fundamentally a federal law claim. Plaintiff's attempt to transform its action into a state law action by simply evidencing its desire to drop its federal claims is impermissible. The transfer of land between the defendants was conducted pursuant to the Rails to Trails Act, a Federal Statute. Federal law supercedes state law. U.S. Constitution Art. VI § 2. Plaintiff's claims, which center around a takings theory, are rooted in state law (one cites Section 2007.044 of the Texas Code, requiring that a "takings impact assessment" be made before the government takes private land. Another cites Article I, § 17 of the Texas Constitution, requiring that compensation be paid to private individuals who suffer a taking at the hands of the state government). Plaintiff's claims are rooted in state law, and because the transfer in question occurred pursuant to a Federal statute, Plaintiff's claims are superceded by the Federal statute and do not belong in state court. Just because a takings claim cannot be made pursuant to state law, does not mean that a takings claim cannot be made at all. It simply means that it must be brought pursuant to the Federal statute. In this case, takings claims rooted in transfers conducted pursuant to the Rails to Trails should be brought under the Tucker Act. Preseault v. I.C.C., 494 U.S. 1, 22, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (holding that, the Tucker Act provides an appropriate remedy for claims brought under to the Trails Act). The appropriate venue for such an action, provided that it exceeds $10,000 is the United States Court of Claims. 28 U.S.C.A. § 1491(a)(1) (the Tucker Act); Preseault, 494 U.S. 1, 4-5, 110 S.Ct. 914, 108 L.Ed.2d 1; U.S. v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980); Graham v. Henegar, 640 F.2d 732 *711 (5th Cir.1981) (holding that the Federal Court of Claims has exclusive jurisdiction over nontort claims for money damages against the United States over $10,000). [Incidentally, this court, under 28 U.S.C. § 1631 has the discretionary authority to transfer claims to the Court of Federal Claims. 28 U.S.C. § 1631; Dunn McCampbell Royalty Interest v. Nat. Park Serv., 964 F.Supp. 1125, 1139 (S.D.Tex. 1995)]. The United States Court of Claims, although it can hear the takings claim and decide on monetary restitution, can only decide on monetary claims, and therefore cannot grant Plaintiff's wish to have the alleged cloud lifted from its title. Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988); Lee v. Thornton, 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975). This cloud, as Plaintiff describes it, derives from the transfer of the property in question which Plaintiff attempts to frame as an abandonment. Under the Trails Act, however, if the I.C.C. (now the S.T.B) approves a transfer of land pursuant to the Trails Act, then it is not classified as an abandonment, 16 U.S.C.A. § 1247(d), but a discontinuance. Grantwood Village v. Missouri Pacific R.R. Co., 95 F.3d 654, 658. In the case at hand, the I.C.C. did approve the transfer. Therefore, it is not an abandonment, and Plaintiff's claim to the contrary, is in essence a collateral attack on the I.C.C.'s order, similar to the allegation at issue in Grantwood, 95 F.3d 654. In Grantwood, Plaintiffs attempted to characterize their claim as a "quiet title" action. The transfer of property in question, however, like the transfer at issue in this case, was conducted pursuant to the Rails to Trails Act and was in compliance with an I.C.C. order. Consequently, the Eighth Circuit ruled that a challenge to the Defendant's interest in the property amounted to a collateral attack on the I.C.C. ruling. Id. at 657. Such an attack, the Court continued, necessarily involved Federal law, and therefore did not belong in state court. Id. at 657. Further, the appropriate venue for bringing such an attack, the Court ruled, is neither state nor U.S. District Court, but rather, U.S. Court of Appeals. Id. at 658 citing 28 U.S.C.A. § 2342(5) (the Hobbs Act) (stating that circuit courts have exclusive jurisdiction over any action to enjoin, suspend or determine the validity of an I.C.C. order); see also Glosemeyer v. Missouri-Kansas-Texas R.R., 879 F.2d 316, 320 (8th Cir.1989). CASES WITH SIMILAR FACT PATTERNS Denying the Plaintiff's motion to remand and either dismissing the case, or severing the claims and transferring them would not contradict findings by other courts in similar cases around the country. Although no cases exist in the 5th Circuit that deal with Rails to Trails Act, several cases in other districts, and one from the United States Supreme Court do. In the Supreme Court case, entitled Preseault v. I.C.C., 494 U.S. 1, 22, 110 S.Ct. 914, 108 L.Ed.2d 1 (1989), the Supreme Court of the United States faced facts similar to those at issue in this case. Specifically, the Plaintiff in Preseault claimed a reversionary interest in a railroad right-of-way and brought a quiet title action alleging that the easement had been abandoned and was thus extinguished (the Vermont Railway had stopped using the route for over a decade and had since removed all railroad equipment from the contested property persuant to the Trails Act). The I.C.C. issued a ruling approving an agreement made concerning the property pursuant to the Trails Act and consequently allowed the railroad to discontinue service (as it did in the case at bar). The Plaintiff then challenged the I.C.C. order in the Court of Appeals for the 2nd Circuit on the grounds that it authorized the taking of private property by the Government without issuing just compensation. The Supreme Court held that as long as the government has provided an adequate *712 process for obtaining just compensation, then the property owner has no claim against the Government for a taking. 494 U.S. at 11, 110 S.Ct. 914, citing Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). The Court further held that the government has provided just such a process via the Tucker Act: "taking claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act." 494 U.S. at 11, 110 S.Ct. 914 citing from Williamson County, 473 U.S. at 195, 105 S.Ct. 3108. Further, the Supreme Court held that the Tucker Act applies to claims arising under the Trails Act: "[W]e find that rail-to-trail conversions giving rise to just compensation claims are clearly authorized by § 8(d)." 494 U.S. at 13, 110 S.Ct. 914, and "We reaffirm that a Tucker Act remedy exists unless there are unambiguous indications to the contrary." Id. The proper venue for claims brought under the Tucker Act, the Court continued, is the United States Claims Court: "The Tucker Act provides jurisdiction in the United States Claims Court for any claim against the Federal Government to recover damages founded on the Constitution, a statute, a regulation, or an express or implied-in-fact contract." See 28 U.S.C. § 1491(a)(1) (1982 ed.); see also § 1346(a)(2) (Little Tucker Act, which creates concurrent jurisdiction in the district courts for such claims not exceeding $10,000 in amount). Transferring the case to the United States Claims Court would not interfere with Plaintiff's state law claims. On the contrary, state law is central to determining property rights. As the Supreme Court stated in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548: Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. Id. at 577, 92 S.Ct. 2701. Earlier cases with similar fact patterns in which state law claims were in question were correctly brought in U.S. Claims Court. See Preseault v. United States, 27 Fed.Cl. 69, reversed and remanded in Preseault v. United States, 100 F.3d 1525 (Fed.Cir.1996) arising from the same facts as Preseault v. I.C.C. 494 U.S. at 22, 110 S.Ct. 914 (Preseault I), and consequently known as Preseault II. In Preseault II, owners of property subject to railroad rights of way brought claim in the U.S. Court of Claims against the United States for just compensation under Fifth Amendment for alleged taking of their land, based on conversion of rights-of-way into a public recreational trail. The Circuit Court for the Federal Circuit held that the conversion of the railroad into a private trail constituted a taking of private property for public use and consequently ordered that the case be remanded to the U.S. Claims Court so that just compensation could be paid. Likewise, in Chevy Chase Land Company v. United States, 37 Fed.Cl. 545 (1997) the United States Court of Federal Claims asserted jurisdiction to determine title to real property as a preliminary matter when addressing a takings claim involving the Rails to Trails Act. Id. at 564, 565. Specifically, in Chevy Chase a land company brought action against the United States and county, alleging a taking of a railroad right-of-way by operation of the Rails-to-Trails Act in the United States Court of Claims. In a similar vein, in Trustees of the Diocese of Vermont v. Vermont Railway, Inc., 145 Vt. 510, 496 A.2d 151 (1985), the Supreme Court of Vermont ruled on a case whose fact pattern paralleled and indeed derived from the one in Preseault I and II and concluded that state court was not the proper venue for bringing a claim that involved a taking under the Trails *713 Act. In Vermont Railway, the Court recognized that the ICC has plenary authority in the area of determining whether an action under the Trails Act constitutes an abandonment. Consequently, courts are only empowered to enjoin actions pending disposition of the matter by the ICC. In the case at hand, the ICC approved of the transfer between Southern Pacific and the Texas Department of Transportation. Therefore, to determine that an abandonment did occur, would strip the ICC of its authority to determine that an abandonment did not occur, thereby eviscerating with the laws of Congress. CONCLUSION The essence of Plaintiff's claim has two parts: (1) a taking occurred and therefore it should receive just compensation, and (2) a cloud has been placed on its title. In regard to the first part of Plaintiff's claim, in cases like the Plaintiff's involving the Trails Act, the United States Court of Federal Claims has been the appropriate venue in which these types of allegations have been brought. Not only does the Court of Claims determine if just compensation is due, but it also determines if a taking in fact occurred. In regard to Plaintiff's desire to have the alleged cloud removed from its title, this claim cannot be brought in Federal Claims Court. Not only does it not involve monetary compensation, but it amounts essentially to a collateral attack on the I.C.C. ruling, and, therefore, should have been attacked in the appropriate U.S. Court of Appeals. For the foregoing reasons, this case is dismissed without prejudice to file in the U.S. Court of Claims. Costs are taxed against the plaintiff.

NUMBER 13-08-125-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG HENRY KAPPE, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 214th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Justice Benavides Appellant, Henry Kappe, was convicted by a jury of intoxication manslaughter, intoxication assault, and failure to stop and render aid. TEX . PENAL CODE ANN . §§ 49.07(a)(1), 49.08(a) (Vernon 2006); TEX . TRANSP . CODE ANN . §§ 550.021(a)-(c), 555.023(3) (Vernon 1999).  Kappe claims that the evidence was insufficient to support revocation of his community supervision and that the trial court failed to take into consideration mitigating factors in sentencing. For the reasons stated herein, we affirm the trial court’s judgment. I. Background Henry Kappe was indicted for intoxication manslaughter, intoxication assault, and failure to stop and render assistance. On February 2, 2005, Kappe was found guilty by a jury of all three offenses. The jury sentenced him to five years in the Texas Department of Criminal Justice and a $500.00 fine for intoxication assault and intoxication manslaughter, and six months in the Nueces County jail and a $500.00 fine for failure to stop and render assistance. The jury also recommended that the punishment of imprisonment be suspended and that Kappe be placed on community supervision with respect to the intoxication assault and manslaughter convictions. On February 10, 2005, the trial court placed Kappe on community supervision. The State filed a motion to revoke Kappe’s community supervision, and later amended the motion. The motions to revoke alleged that Kappe failed to report to his probation officer, failed to report a change of his residence, failed to pay fines, and failed to avoid alcoholic beverages. A hearing was held on motion to revoke on February 21, 2008 at which time Kappe pleaded “true” to all the allegations in the State’s motion to revoke. Kappe did not enter into an agreement regarding punishment. The State requested that the trial court impose the original five year sentence in Texas Department Criminal Justice. Kappe asked that his probation not be revoked and, in the alternative, asked the 2 court to consider SAFPF or SATF.1 After hearing the evidence, the court found the allegations in the motion to revoke to be true. The trial court revoked Kappe’s community supervision, and he was sentenced to five years in the Texas Department of Criminal Justice for the intoxication assault and the intoxication manslaughter, and he was sentenced to six months in the Nueces County Jail for his failure to stop and render aid. The court certified Kappe’s right to appeal, and this appeal ensued. II. Anders issues Kappe’s counsel describes his appellate brief as a “hybrid-Anders” brief. In other words, Kappe’s counsel has argued one issue that she found to be meritorious but has also listed several possible issues that she deems frivolous. The State argues that the brief fails to comply with the procedure required by Anders v. California, 386 U.S. 738 (1967) and In Re Shulman, 252 S.W.3d 403 (Tex. Crim. App. 2008). We agree. States must provide counsel for an indigent appellant on his first appeal as a matter of right, and courts have recognized the superior ability of trained counsel in the examination into the record, research of the law, and marshalling of the arguments on the appellant’s behalf. Douglas v. California, 372 U.S. 353, 358 (1963). Experienced advocates have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most, on a few key issues. Jones v. Barnes, 463 U.S. 745, 751 (1983). Appellate counsel does not have to raise every possible argument on appeal; rather, appellate counsel should examine the record with a view to selecting the most promising issues for review. Id. at 752. Even though 1 Substance Abuse Felony Punishm ent Facilities. See T EX . G O V ’T C OD E A N N . § 493.009 (Vernon Supp.2007) 3 Kappe’s counsel has set out various issues that she found to be wholly frivolous, she was not required to do so. Kappe’s counsel did brief one issue which she felt was not frivolous. We will confine our review to that issue. III. Revocation and Punishment Kappe argues that the evidence at the hearing to revoke his probation was insufficient to support the revocation, and that the court failed to take into account mitigating factors. The State argues that appellant did not raise this objection at the hearing and has thus waived the issue. In the alternative, the State argues that the sentence is within the range of punishment for the offenses. A. Waiver To preserve a complaint of disproportionate sentencing, an appellant must object or otherwise raise error in the trial court. TEX . R. APP. P. 33.1; Jackson v. State, 989 S.W.2d 842, 844 (Tex. App.–Texarkana 1999, no pet.). Kappe did not specifically object when the trial court pronounced his sentence. However, Texas Rule of Appellate Procedure 33.1(a)(1)(A) excuses the lack of a timely and specific objection if “the specific grounds were apparent from the context.” TEX . R. APP. P. 33.1(a)(1)(A). Kappe did not challenge the evidence supporting revocation because he pleaded true to the State’s allegations. Accordingly, he has not preserved that argument for appeal. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that the issue on appeal must comport with the objection raised at trial). However, Kappe did request that the court continue his community supervision and order alcohol rehabilitation. Id. Accordingly, he preserved his challenge to the sentence. 4 B. Standard of Review A trial judge is afforded a great amount of discretion in determining the appropriate punishment in any given case. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); see also Jeter v. State, No. 13-05-069-CR, 2006 Tex. App. LEXIS 7136, at *2-3 (Tex. App.–Corpus Christi Aug. 10, 2006, no pet.) (mem. op., not designated for publication). Accordingly, the trial court’s assessment of a particular punishment will not be disturbed on appeal absent a showing of abuse of discretion. Jackson, 680 S.W.2d at 814. Generally, a penalty assessed that is within the range of punishment established by the Legislature for a particular offense will not be disturbed on appeal. Id. Texas Code of Criminal Procedure article 42.12, section 23 sets forth the procedures to be followed when a person violates the terms of his or her community supervision. TEX . CODE CRIM . PROC . ANN . art. 42.12 § 23 (Vernon Supp. 2007). Section 23 provides that if community supervision is revoked, “the judge may proceed to dispose of the case as if there had been no community supervision, or if the judge determines that the best interests of society and the defendant would be served by a shorter term of confinement, reduce the term of confinement originally assessed to any term of confinement not less than the minimum prescribed for the offense of which the defendant was convicted.” Id. At the hearing, the court heard from Kappe and his counsel regarding the reason for keeping him on community supervision. After the hearing, the sentence given to Kappe was the sentence given by the jury and was well within the range of punishment for the offenses. TEX . PENAL CODE ANN . § 49.07(c) (intoxication assault is a third-degree felony); id. § 12.34(a) (two-to-ten year imprisonment as punishment for third-degree felony); id. § 5 49.08(b) (intoxication manslaughter is a second-degree felony); id. § 12.33(a) (two-to- twenty year imprisonment as punishment for second-degree felony); TEX . TRANSP . CODE ANN . § 550.021(c)(2)(A) (punishment for failure to render aid is limited to “imprisonment in the Texas Department of Criminal Justice for not more than five years or confinement in the county jail for not more than one year”). Accordingly, the trial court did not abuse its discretion. IV. Conclusion For the above given reasons, the judgment of the trial court is AFFIRMED. __________________________ GINA M. BENAVIDES Justice Do not publish. See TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this the 21st day of August, 2008. 6 

In the United States Court of Appeals For the Seventh Circuit ____________ No. 03-2339 PAMELA JOHNSON, Plaintiff-Appellant, v. LARABIDA CHILDREN’S HOSPITAL, Defendant-Appellee. ____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01-C-1047—Charles R. Norgle, Sr., Judge. ____________ ARGUED JANUARY 15, 2004—DECIDED JUNE 22, 2004 ____________ Before COFFEY, KANNE, and EVANS, Circuit Judges. COFFEY, Circuit Judge. Plaintiff-appellant Pamela Johnson brought suit against her former employer, LaRabida Children’s hospital in Chicago, Illinois, alleging that her civil rights had been violated, pursuant to 42 U.S.C. § 1983, when she was struck in the head by security guard Tommy Stephens while attempting to gain access to the facility. The district court granted LaRabida’s motion for summary judgment under Fed. R. Civ. P. 56(c), finding Johnson had failed to provide sufficient proof to demon- strate that Stephens was a state actor within the meaning of § 1983. We affirm. 2 No. 03-2339 I. BACKGROUND On March 23, 1999, plaintiff-appellant Pamela Johnson (“Johnson”) entered the lobby of her former employer, the LaRabida Children’s Hospital (“Hospital”) to discuss a negative recommendation a potential employer allegedly received from LaRabida while she applying for a new job. The stated purpose of her visit to the hospital that day was to review her personnel file with the director of the human resource department, Bill Koulias (“Koulias”). Upon arrival, Johnson requested access to the human resources depart- ment and Koulias, but her request was denied by the Hospital’s receptionist, Willie Williams (“Williams”). At this point, Johnson began to threaten Williams, allegedly screaming “Call the police [explicative] because I am going to kill you!” R.22, Williams Affidavit ¶ 1. This prompted Williams to again deny Johnson’s requested audience with Koulias and place a call to Hospital security. Prior to security arriving Johnson continued her tirade, allegedly threatening to beat and kill Williams and Koulias. When security guard Tommy Stephens (“Stephens”) ar- rived on the scene, in the midst of Johnson’s ranting, he directed Williams to call 911. Stephens also told Johnson that she would not be allowed to go up to the human re- source department to see Koulias. Johnson responded by asking whether Stephens had a gun. When Stephens told her that he did not, Johnson warned Stephens that he would need to find some people with guns to stop her. According to Stephens and Williams, Johnson claimed to have a gun. R.22, Williams Affidavit ¶ 1; R.22, Stephens Affidavit ¶¶ 1, 2. As Johnson became more enraged, she attempted to walk around Stephens and proceed to the human resource department. Stephens grabbed Johnson to impede her ad- vance and was subsequently kicked in the leg. Stephens responded by screaming out “that bitch kicked me.” Johnson No. 03-2339 3 Affidavit ¶ 2. Then, in an attempt to prevent Johnson from possibly doing harm to herself or others, Stephens, using a downward motion, struck Johnson in the head with the walkie-talkie he was holding in his left hand. It was only after Stephens struck Johnson that her verbal and physical barrage ceased and she left the Hospital’s lobby, where she was met at the door by Chicago police called to the scene by Williams. Police took Johnson to a local hospital where she received 13 stitches for her wound. While neither Johnson nor Stephens were arrested the day of the incident, Johnson was issued a citation for assault, battery, and disorderly conduct. Although Johnson filed criminal battery charges against Stephens, the State’s Attorney’s Office elected not to pursue charges. Subsequently, Stephens, Koulias, and two other Hospital employees prepared and signed misdemeanor criminal complaints against Johnson alleging disorderly conduct, telephone harassment, assault, and battery.1 The assault and battery charges were dismissed on April 4, 2000 and never reinstated. In return for the dismissal of those charges, Johnson pled guilty to the misdemeanor disorderly conduct and telephone harassment charges. She was sentenced to, and completed, one year of conditional supervision. In her plea agreement, Johnson admitted that she (1) acted in “an unreasonable manner”; (2) “threat[ened] bodily harm” to persons at the Hospital; (3) “provoke[d] a breach of the peace”; (4) “battered [Stephens]”; and (5) “created dismay.” On February 15, 2000, Johnson filed a civil complaint, pursuant to 28 U.S.C. § 1983, against the Hospital and Stephens alleging that they violated her civil rights because 1 After the incident, Johnson continued to threaten bodily harm to various Hospital personnel in numerous recorded telephone calls made to the Hospital. 4 No. 03-2339 Stephens used excessive force when he struck her in the head. Johnson’s complaint also alleged a number of pendant state law claims. On January 24, 2002, the defendants filed a motion for summary judgment on Johnson’s Section 1983 claim. On September 27, 2002, the trial judge granted the defendant’s motion, dismissing both Johnson’s federal and pendant state law claims. Specifically, the district court found that Stephens was not a “state actor” for purposes of Section 1983. The judge’s Order also declined to retain pendant jurisdiction over Johnson’s state law claims. Johnson timely appealed the Order to this Court on October 16, 2002. We affirm. II. ANALYSIS “We review a district court’s grant of summary judgment de novo, construing all facts and inferences in the light most favorable to the non-moving party.” Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1028 (7th Cir. 2004). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). 42 U.S.C. § 1983 provides in pertinent part that “[e]very person who, under color of any statute, ordinance, regu- lation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983. While generally employed against government officers, the language of § 1983 authorizes its use against private in- dividuals who exercise government power; that is, those individuals who act “under color of state law.” Payton v. No. 03-2339 5 Rush-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 628 (7th Cir. 1999). This Court held in Payton v. Rush- Presbyterian-St. Luke’s Medical Center that a private party will be deemed to have acted under “color of state law” when the state either (1) “effectively directs or controls the actions of the private party such that the state can be held responsible for the private party’s decision”; or (2) “dele- gates a public function to a private entity.” Id. Johnson argues, in accord with the latter theory, that Stephens should be considered a state actor due to his status as a special policeman, duly appointed under Chicago Municipal Code § 4-340-100.2 Chicago Municipal Code § 4-340-100 declares that “[s]pe- cial policemen shall possess the powers of the regular police patrol at the places for which they are respectively ap- pointed.” Furthermore, “for purposes of determining whether [an individual is a] state actor[ ] . . . , no legal difference exists between a privately employed special officer with full police powers and a regular Chicago police officer. Payton, 184 F.3d at 630 (emphasis added). If, how- ever, the privately employed special officers are “no sub- stitute for the police” in that they are not “entrusted with all powers possessed by the police,” then the special officer is not considered a state actor. Id. (citations omitted). When, for example, a special officer’s only recourse in a given situation is to call the police for help, it is “a far cry from delegating all of the powers of the regular police patrol to the special officer.” Payton, 184 F.3d at 630. 2 While Chicago Municipal Code § 4-340-100 also requires “[s]pecial policemen [to] report to the superintendent of police . . . as . . . required by him,” and thus creates the potential for a claim of state action under the “directs or controls” prong, Payton v. Rush-Presbyterian-St. Luke’s Medical Center, 184 F.3d 623, 628 (7th Cir. 1999), Johnson does not offer that argument before this Court. 6 No. 03-2339 In United States v. Hoffman, 498 F.2d 879 (7th Cir. 1974), for example, we held that privately employed railroad policemen, who were also Chicago special police officers, were state actors when they brutally beat vagrant trespass- ers. Id. at 881-82. Of particular importance was the fact that the policemen were “authorized on a continuing and full-time basis to search actively for criminals and . . . to use the powers of the state when their search [was] success- ful.” Id. at 881. In Wade v. Byles, on the other hand, we held that a se- curity guard working under contract with the Chicago Housing Authority (“CHA”) was not a state actor when, while on duty, the security guard got into an altercation with an individual at a CHA security checkpoint, and shot the man in the groin. 83 F.3d 902 (7th Cir. 1996). Like the railroad policemen in Hoffman, the CHA had been officially delegated police authority. Id. at 903. Unlike the situation in Hoffman, however, we held that Wade was not a case “where the state ha[d] delegated its entire police power to a private police force.” Id. at 905 (Although contract with CHA allowed guard to carry gun, it only permitted him to detain individuals for trespass and only pending arrival of police). For that reason, the guard in Wade was not a state actor. Id. at 907. Under this standard, the district court did not err in finding that Stephens was not a state actor. Initially, it should be noted that Stephens did not, and was not autho- rized to, carry a firearm. Also, at the time of the incident, Stephens was not expected or authorized to carry out the functions of a police officer. Stephens was merely responsi- ble for routine security duties only such as patrolling the interior and exterior of the hospital, observing potential safety hazards, manning an information desk, monitoring the alarm system, and providing escorts for patients and staff. In the event that a visitor to the hospital were to No. 03-2339 7 become unruly or disruptive, as Johnson clearly did, it was within Stephen’s discretion to ask that person to leave the premises. However, per Hospital policy, when Johnson began acting belligerent and hostile and refused to leave, the only recourse Stephens had was “to call 911 for assis- tance in having the individual removed.” Defendant’s Motion for Summary Judgment, Ex. 11, at L00001. This is “a far cry from delegating all of the powers of the regular police patrol to . . . special officer [Stephens].” Indeed, Stephens precisely followed this procedure on March 23, 1999. For when Stephens arrived on the scene (after responding to an assistance call from Williams) and perceived the threat that Johnson posed, he immediately directed Williams to dial 911. It was only after Stephens had been physically assaulted by Johnson, and legitimately feared for his safety and the safety of others present,3 that he used force to subdue Johnson, striking her once in the head with the only “weapon” he had, his walkie-talkie. Much like Wade, therefore, this is not a case “where the state ha[d] delegated its entire police power to a private police force.” Id. at 905. Stephens was no substitute for the police and, therefore, not a state actor. Payton, 184 F.3d at 630. Nonetheless, assuming arguendo, that Stephens was a state actor, Johnson would still need to establish that Stephens deprived her of a constitutional right. 42 U.S.C. § 1983. She cannot do so. In her complaint, Johnson claims 3 As noted above, Johnson allegedly implied she was in possession of a firearm. Stephens states in his affidavit that “I became very concerned that Johnson would pull the gun she had been re- peatedly threatening to use . . . [and] [d]etermined not to become the latest victim of a disgruntled former employee’s shooting spree, I instinctively reacted by striking Johnson in the forehead . . . .” 8 No. 03-2339 that Stephens used excessive force in seeking to detain her in violation of the Fourth Amendment. We disagree. Stephens’ use of force was reasonable as a matter of necessity and law. “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. M.S. Connor, 490 U.S. 386, 396 (1989). Furthermore, it is clear that, under the Fourth Amendment, “the right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion.” Id. What is reason- able depends upon the particulars of a given case, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [s]he is actively resisting arrest or at- tempting to evade arrest by flight.” Id. In addition, what is reasonable “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. Under this standard, it is clear that Stephens exercised reasonable force in attempting to detain Johnson. By her own admission, Johnson (1) acted in “an unreasonable manner”; (2) “threat[ened] bodily harm” to persons at the Hospital; (3) “provoke[d] a breach of the peace”; (4) “bat- tered [Stephens]”; and (5) “created dismay.” These ad- missions alone demonstrate that Stephens had reason to exercise physical coercion and that the single blow from his walkie-talkie was reasonable force given the situation. Id. As such, even if we were to hold that Stephens was a state actor, he did not deprive Johnson of her Fourth Amendment right to be free from excessive force. No. 03-2339 9 III. Conclusion The judgment of the district court is AFFIRMED. A true Copy: Teste: ________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—6-22-04 

970 F.2d 898 Gelin (Ernst J.)v.Stone (Michael P.W.) NO. 91-5457 United States Court of Appeals,Third Circuit. June 12, 1992 Appeal From: D.N.J., Thompson, J. 1 AFFIRMED.

644 F.2d 880 Mabryv.Mitchell 79-8508 UNITED STATES COURT OF APPEALS Fourth Circuit 2/23/81 1 E.D.Va. CPC DENIED--DISMISSED

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-50618 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OSCAR POLANCO-SALAS, also known as Victor Ortiz, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1658-1-F - - - - - - - - - - February 15, 2001 Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Oscar Polanco-Salas appeals his sentence following his guilty plea conviction for illegal re-entry after deportation in violation of 8 U.S.C. § 1326. Polanco argues that his sentence should not have exceeded the two-year maximum sentence under 8 U.S.C. § 1326(a). Polanco acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for Supreme Court review in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 00-50618 - 2 - Polanco’s argument is foreclosed by Almendarez-Torres, 523 U.S. at 235. The Government has moved for a summary affirmance in lieu of filing an appellee’s brief. In its motion, the Government asks that the judgment of the district court be affirmed and that an appellee’s brief not be required. The motion is granted. AFFIRMED; MOTION GRANTED. 

240 F.Supp.2d 396 (2002) Jerry D. WEAST,[1] et al. Plaintiffs v. Brian SCHAFFER, et al. Defendants No. CIV. PJM 99-15. United States District Court, D. Maryland. November 25, 2002. *397 Zvi Greismann, Esquire, Rockville, MD, Jeffrey A. Krew, Esquire, Columbia, MD, for Plaintiffs. Michael J. Eig, Esquire, Haylie Michelle Iseman, Esquire, Chevy Chase, MD, for Defendants. OPINION MESSITTE, District Judge. I. The parents of Brian Schaffer, a child with a disability as defined in the Individuals With Disabilities Education Act (IDEA), 20 U.S. § 1400, et seq., disagreed with the Montgomery County, Maryland, Public School system (MCPS) that it offered Brian a Free Appropriate Public Education (FAPE) for the school year 1998-99. As a result, the parents unilaterally placed Brian in private school for that year and sought reimbursement pursuant to the Act. With the case before him for a second time, the Administrative Law Judge (ALJ) held that MCPS had not provided Brian a FAPE,[2]but awarded the parents reimbursement *398 for only one-half the year's tuition (Schaffer II). The parents have appealed the latter decision. They also ask, by way of a motion for preliminary injunction, that MCPS be required to fund Brian's placement at private school for the school years 1999-00 and 2000-01. MCPS has appealed the decision of the ALJ to the extent that he awarded the parents any reimbursement at all. The parties have filed Cross-Motions for Summary Judgment.[3] The Court will GRANT the parents' Motion for Summary Judgment and will AFIRM the finding of the ALJ that MCPS did not provide Brian with a FAPE for 1998-99. It will REVERSE the ALJ's decision insofar as he ordered reimbursement for only one-half of the school year and will DIRECT that the parents be reimbursed for the entire 1998-99 school year. The parents' Motion for Preliminary Injunction, asking that they be reimbursed for the school years 1999-00 and 2000-01, will be DENIED. The Cross-Motion of MCPS for Summary Judgment will be DENIED. II. A) Schaffer I Brian, who was 14 years old in 1998-99, is learning-disabled, language-impaired and other health impaired. He has been diagnosed as having attention deficit hyperactivity disorder and needs special education and related services to benefit from school attendance. From kindergarten through seventh grade, he attended Green Acres School, a private school in Montgomery County where, despite small class size and significant accommodations as well as parentally provided extra services, he did not succeed. In November 1997, Brian's mother contacted MCPS and requested special education services for him for the 1998-99 school year, submitting outside evaluations in support of her request. After reviewing the outside evaluations and conducting additional tests, MCPS found Brian eligible for special education and proposed a parttime placement at Hoover Middle School, with an alternative placement at the Robert Frost Middle School. This was Brian's initial IEP. Because they believed the IEP drafted for Brian was not reasonably calculated to provide him with appropriate educational benefit, his parents notified MCPS that they rejected the proposed placement. In May of 1998, they requested an administrative due process hearing. More or less simultaneously, anticipating the beginning of a new school year in the fall, they enrolled him for the 1998-99 school year at the McLean School, a private school for learning and language-disabled students located in Montgomery County. In Schaffer I, in which the ALJ assigned the burden of proof to the parents, the ALJ considered the evidence relative to the "central auditory processing problem" he found Brian had. He cited the testimony of Drs. Ruth D. Spodak and Carol A. *399 Kamara, Brian's experts on learning disabilities and speech/language pathology respectively, both of whom stated that the IEP proposed for Brian failed to offer an appropriate educational benefit because he required small, self-contained special education classes of a kind not included in the IEP. Dr. Spodak testified that such classes were essential to Brian's education because they would tend to minimize the distractions interfering with his ability to learn. Dr. Kamara testified that his "central auditory processing" problem increased his susceptibility to distractions, necessitating a small, self-contained learning environment. The ALJ noted that Dr. Spodak's testimony differed in some respects from a report she and members of her staff had written earlier about Brian's learning disabilities. This, along with the fact that she herself had spent only ten minutes with Brian, caused the ALJ to "question! ] the probative value of Dr. Spodak's opinion." Similarly, the ALJ noted that Dr. Kamara's opinion was compromised to some extent by her acknowledgment of the diagnostic limitations of the test she relied upon in diagnosing Brian's "central auditory processing" problem and by her refusal to offer an opinion as to whether Brian's speech-language disability was mild, moderate, or severe. Finally, the ALJ noted that two experts from MCPS, Dr. Barbara J. Butera, a school psychologist, and Pamala Zahara, a speech pathologist, testified that the IEP was appropriate to Brian's needs and that, in their view, Brian suffered not from a "central auditory processing" problem but from a mild speechlanguage disability. The ALJ deemed assignment of the burden of proof in the case to be "critical": There are experts on both sides in this case who have testified with opposing points of view. The credentials of all of those experts, in their respective fields, were impressive. Because each side's experts have diverging views on the question of what the Child's needs were and which placement would afford the requisite educational benefit for the Child, an assignment of the burden of proof in this case becomes critical. Placing the burden of proof upon the parents, the ALJ decided that they had not demonstrated that Brian failed to receive a FAPE: The Parents have failed to persuade the ALJ that the April 6, 1998 IEP was not reasonably calculated to provide educational benefit, or that the placement(s) offered by MCPS are not appropriate to provide for the Child's educational needs in accordance with the IDEA. Accordingly, the parents' request for reimbursement was denied. B) Schaffer II In Schaffer II, with the burden of proof shifted to MCPS, but without additional evidence being presented, the ALJ revisited the record. Again he found that the core dispute was whether Brian had a "central auditory processing" problem and again he considered the impact, if any, that that disability had on Brian's ability to learn. The ALJ reviewed the testimony of Dr. Kamara, the Schaffers' speech/language pathology and audiology expert, who was critical of the proposed placement of Brian at Herbert Hoover Middle School or the Robert Frost Middle School "because of the risk of simultaneous messages, distractions and possible distortions of audio signals in that setting." He looked again at Dr. Kamara's opinion that the critical need of the child—his "central auditory processing" problem—had not been addressed in the 1998-99 IEP. The ALJ also considered the testimony of the speech/language pathologist for MCPS, Pamala Zahara, who opined that Brian did *400 not exhibit evidence of "severe auditory processing difficulties related to discrimination at the word level." The ALJ weighed Dr. Kamara's qualifications as a certified audiologist against those of Ms. Zahara as a speech/language pathologist. The fact that Dr. Kamara had conducted a formal comprehensive evaluation of Brian that took four hours to complete as opposed to the informal assessment Ms. Zahara took approximately one hour to make was also taken into account. At the end of the day, the ALJ concluded that "undoubtedly, Dr. Kamara's effort and experience in evaluating the Child was more extensive than that of Pamala Zahara." Even then, however, the ALJ found that the evidence remained in balance: In sum, the weight of the evidence from Dr. Kamara and Pamala Zahara on the usefulness of the SCAN-A and the existence of the Child's unique "central auditory processing" problem, rests in equipose. In resolving the dispute of fact, the ALJ must accept one expert's opinion and reject the other. Unlike the initial hearing, MCPS now bears the burden of proof on facts in dispute. For this reason, the ALJ now accepts the opinion from Dr. Kamara that the Child has an unique "central auditory processing" problem and rejects Pamala Zahara's opinion to the contrary. Having reversed the factual finding on that initial point, the ALJ will further accept, the opinion of Dr. Kamara that the Child's unique "central auditory processing" problem has a significant impact on his learning and rejects expert opinion testimony from MCPS to the contrary. The ALJ also revisited the testimony of Dr. Spodak, Brian's expert witness in psychology and learning disabilities: During her testimony, she opined, consistent with the opinion of Dr. Kamara, that the Child would receive only trivial or minimal educational benefit, not the appropriate benefit, in a placement at either the Herbert Hoover Middle School or the Robert Frost Middle School. Dr. Spodak would not recommend that the Child be provided special education services in an "inclusion model" setting.[4]Dr. Spodak believes that the Child's educational needs can only be met in small, self-contained special education classes. Small, self-contained special education classes in all academic settings are needed to minimize distractions in order for the Child to be available for learning. The ALJ gave the MCPS experts thendue, but found their opinions wanting: MCPS special education experts testified that many of the disabled students in the "inclusion model" setting at the Herbert Hoover Middle School or the Robert Frost Middle School have a "profile" similar to the Child's abilities, disabilities and educational needs. MCPS special education experts testified those students with a "similar profile" are successful learning in that setting. This testimony estimates the Child's projected learning in the "inclusion model" setting compared with a group of students with whom the experts are familiar on the basis that the Child has a "similar profile." This may be a valid comparison if the Child's needs are correctly *401 identified and properly considered in such "profiling." However, MCPS experts do not recognize that the Child has an unique central auditory processing problem that has a significant impact on his learning as described by Dr. Kamara. Resultantly, the ALJ is left to question how similar a profile the Child has to those students who are successful at the Herbert Hoover Middle School or the Robert Frost Middle School. The failure of MCPS experts to accept and take this need of the Child into their consideration is a factor in evaluating the merit of their opinions. Dr. Kamara testified that the April 6, 1998 IEP, as drafted, does not recognize the Child's central auditory processing problem as a need to be addressed in the Child's education. The April 6, 1998 IEP had no goals to address the Child's severe auditory deficit (perception of sound), which is responsible for his reading problem, and no goals to address his articulation problem, as found and described by Dr. Kamara. This testimony was not refuted. Having accepted the position that the Child has an unique central auditory processing deficit, the failure of the IEP to recognize and address that deficit is noteworthy. And, finally, the ALJ reaffirmed the essential equivalence of the evidence: In sum, the weight of the evidence from the Parents' experts and the experts on behalf of MCPS on the degree of "educational benefit" that the Child could have obtained under the April 6, 1998 IEP, in the "inclusion" setting at either the Herbert Hoover Middle School or the Robert Frost Middle School, rests in equipose. In resolving this dispute, the ALJ must accept the opinion from one side's experts and reject the other. Unlike the initial hearing, MCPS now bears the burden of proof on facts in dispute. For this reason, the ALJ now accepts the opinions from Dr. Kamara and Dr. Spodak that the Child—given his potential for learning—would not have obtained meaningful educational benefit under the April 6, 1998 IEP in a placement at either the Herbert Hoover Middle School or the Robert Frost Middle School. Given the findings of fact, herein, MCPS has failed to persuade the ALJ that the April 6, 1998 IEP was reasonably calculated to provide "significant learning" and "meaning educational benefit" and the placement(s) offered by MCPS were appropriate to provide for the Child's educational needs in accordance with the IDEA. Notwithstanding this conclusion, full reimbursement for Brian's private schooling for school year 1998-99, was denied. Noting that reimbursement is an equitable form of relief, the ALJ concluded on the basis of the evidence that there was "a design by the parents to simply obtain funding from MCPS for a predetermined decision to have the Child attend private school ... The parents did not approach their interaction with MCPS as a partnership in educating the child as a student with disabilities." Accordingly, "[a]s a matter of equity," the ALJ decided to create a "partnership between the parents and MCPS for funding the placement of the Child at the McLean School of Maryland for the 1998-1999 school year." In other words, he directed the school authorities to pay one-half the tuition's costs for the year, the parents would be obliged to assume the other half. III. Interestingly, in its appeal from the ALJ's decision in Schaffer II, MCPS does not challenge the Court's earlier decision to allocate the burden of proof to MCPS. Instead it argues that the ALJ misapplied *402 that burden of proof by materially altering his findings of fact and by making new findings as to the credibility of witnesses where no new evidence was introduced and where the original evidence in favor of MCPS remained "overwhelming." However, despite the failure of MCPS to raise the issue, since the Fourth Circuit vacated the Court's earlier decision regarding the allocation of burden of proof and since the allocation of the burden was as critical to the disposition of Schaffer II as it was to Schaffer I, the Court must necessarily address the issue again. Only then can the Court determine whether or not the ALJ misapplied that burden, as argued by MCPS. Brian's parents, while denying that they "predetermined" that Brian would attend private school come what may, insist that their intention is in any event irrelevant. So long, they say, as they cooperated in good faith in the development of an IEP, they are entitled to full reimbursement if Brian was not offered a FAPE, even if they were fixed on private schooling for him all along. IV. The Court accepts the ALJ's conclusion in Schaffer II that allocation of the burden of proof is critical to the adjudication of Brian's claim. Accordingly the Court reaffirms its earlier decision that, with regard to an initial IEP, the burden of proof in the administrative due process hearing that might follow is upon the school district, not upon the parents. The Court embraces the same analysis as before. Thus — A challenge to an IEP may arise in different settings: 1) The first involves an initial IEP, proposed by the school authorities the first time it is sought for a child, one which the parents disagree with and as to which they seek a administrative due process hearing (the present case); 2) Next is the existing IEP, which at one time was agreed to by everyone, but which either the parents or the school district seeks to change against the wishes of the other, whereupon the matter goes to a due process hearing; and 3) Finally, there is the IEP that has been passed upon by an independent ALJ, which a party seeks to challenge in a court proceeding.[5] The cases, when considering which side has the burden of proof, do not always distinguish among these settings, but in fact there appears to be reason to do so. In the last scenario, the law and policy considerations are the most sharply defined. The Fourth Circuit has clearly held that the burden of proof on appeal from an administrative decision is upon the party challenging the decision. See Barnett v. Fairfax County Sch. Bd., 927 F.2d 146, 152 (4th Cir.1991); Tice v. Botetourt County Sch. Bd., 908 F.2d 1200, 1206 n. 5 (4th Cir.1990); Spielberg v. Henrico County Pub. Sch, 853 F.2d 256, 258 n. 2 (4th Cir.1988). This, according to the Fourth Circuit, arises out of deference to the underlying state administrative process. Tice, 908 F.2d at 1206 n. 5. That in turn undoubtedly flows from the general belief that, once an impartial judicial hearing has been held and a decision made—even at the administrative level—the burden of overturning the decision ought to be upon the party challenging it.[6] *403 Moving to the intermediate scenario, where an existing IEP is sought to be changed, if for no other reason than that it seems "fair[]," Tatro v. Texas, 703 F.2d 823, 830 (5th Cir.1983), it is not unreasonable to conclude that the burden of persuasion as to the change should be borne by the party seeking the change. Numerous cases so hold. See, e.g., Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458, 467 (5th Cir.1995); Doe v. Bd. ofEduc., 9 F.3d 455, 458 (6th Cir.1993); Johnson v. Indep. Sch. Dist. No. k, 921 F.2d 1022, 1026 (10th Cir.1990); Alamo Heights Ind. Sch. Dist. v. State Bd. ofEduc., 790 F.2d 1153, 1158 (5th Cir.1986); Doe v. Brookline Sch. Comm., 722 F.2d 910, 919 (1st Cir.1983); Tatro, 703 F.2d at 830.[7] These authorities are in accord with the observation made by Professor Wigmore that the burden of proof is frequently placed "upon the party to whose case the fact is essential," 9 Wigmore on Evidence, § 2486 at 288 (italics omitted). In the context of an IDEA case, this argues for the proposition that the party seeking a change in the IEP should have to explain why the change is appropriate. Despite this, a number of cases have held that the burden of proof at the administrative level should always lie with the school district, even when the parents are seeking to change an existing IEP. See Clyde K. v. Puyallup Sch. Dist, No. 3, 35 F.3d 1396, 1398 (9th Cir.1994); see also Walczak v. Fla. Union Free Sch. Dist, 142 F.3d 119, 122 (2d Cir.1998); E.S. v. Indep. Sch. Dist, No. 196, 135 F.3d 566, 569 (8th Cir.1998); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533 (3d Cir.1995); Fuhrmann v. East Hanover Bd. of Educ, 993 F.2d 1031, 1034-35 (3d Cir.1993); Lascari v. Bd. of Educ, 116 N.J. 30, 44, 560 A.2d 1180,1188 (1989). The reasoning of these holdings varies from none at all, i.e. from mere assertion, to a brief reference to the statutory obligation to accommodate disabled children, to, in a very few rather elaborate explanation. Among the cases that merely assert that the burden is upon the school district are Clyde K, 35 F.3d at 1398, and Walczak, 142 F.3d at 122. In the middle category is Wall v. Mattituck-Cutchogue Sch. Dist, 945 F.Supp. 501 (E.D.N.Y. 1996), to wit: It has consistently been held that the burden throughout the administrative process is placed upon the school district. This is in obvious recognition of the school's overarching obligation to attend to the specific educational needs of children with disabilities. See S.Rep. No. 94-168 to P.L. 94-142, at 9, reprinted in 1975 U.S.C.C.A.N. 1425, 1433 ("It is this Committee's belief that the Congress must take a more active role under its responsibility for equal protection of the laws to guarantee that handicapped children are provided equal educational opportunity."). 945 F.Supp. at 511 (citations omitted). Undoubtedly the most elaborate rationale was set forth in Lascari, which bears quoting in extenso: [W]e believe it is more consistent with the State and federal scheme to place *404 the burden on the school district not only when it seeks to change the IEP, but also when the parents seek the change. Various considerations lead us to that conclusion. Underlying the State and federal regulations is an abiding concern for the welfare of handicapped children and their parents. Consistent with that concern, the basic obligation to provide a handicapped child with a free, appropriate education is placed on the local school district. It is the district that must identify handicapped children and then formulate and implement their IEPs. Finally, the regulatory scheme vests handicapped children and their parents with numerous procedural safeguards. Those safeguards include the right to counsel and to the advice of experts, 20 U.S.C. § 1415(d)(1); 34 C.F.R. § 300.508(a)(1); to present evidence and cross-examine witnesses, 20 U.S.C. § 1415(d)(2); 34 C.F.R. § 300.508(a)(2); to "have the child who is the subject of the hearing present," id. at § 300.508(b)(1); and to a public hearing, id. at § 300.508(b)(2). Like those procedural safeguards, the allocation of the burden of proof protects the rights of handicapped children to an appropriate education. Our result is also consistent with the proposition that the burdens of persuasion and of production should be placed on the party better able to meet those burdens. In the past, we have placed either the burden of production, see Ryan v. Mayor & Council of Borough of Demurest, 64 N.J. 593, 604-05, 319 A.2d 442 (1974), or the burden of proof on the party with the better access to relevant information, Andersen v. Exxon Co., 89 N.J. 483, 500, 446 A.2d 486 (1982); Brundage v. Neiv Jersey Zinc Co., 48 N.J. 450, 475-77, 226 A.2d 585 (1967). The school board, with its recourse to the child-study team and other experts, has ready access to the expertise needed to formulate an IEP. Through the child study team, the board generally has extensive records pertaining to a handicapped child. The board is also conversant with the federal and State laws dictating what the district must provide to handicapped children in order to comply with the EAHCA. Cf. S-1 v. Turlington, 635 F.2d 342, 348-49 (5th Cir.) (burden on district to raise question whether student's misconduct is based on handicap because parents lack wherewithal to know rights under EAHCA), cert. denied, 454 U.S. 1030, 102 S.Ct. 566, 70 L.Ed.2d 473 (1981), abrogated on other grounds by Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). By contrast, parents may lack the expertise needed to formulate an appropriate education for their child. 116 N.J. at 44-45, 560 A.2d at 1188.[8] As to the first scenario—that in which an initial IEP is disputed at a due process hearing—all of Lascari's considerations came into play but there is more. In the initial situation, unlike the change situation, *405 the parents have never agreed that the IEP is appropriate. By definition, they have disagreed and sought a determination by an impartial hearing officer, one, it may be noted, who by law may not be associated with the school authority. 20 U.S.C. § 1415(f)(3). In this circumstance, the only sense in which "change" is involved is that the parents wish to change what the school authorities have unilaterally proposed. Since the IEP is supposed to be a joint enterprise, if parents have never agreed to it, it is debatable whether an IEP can even be said to exist. The situation seems much like that in which two parties engage in a dispute, following which litigation is initiated. If one assumes, following Wigmore, that "the party having in form the affirmative allegation" should carry the burden of proof, 9 Wigmore on Evidence, § 2486 at 288 (italics omitted), it would seem entirely reasonable to assign the burden to the school authority to affirmatively establish the propriety of the plan it proposes.[9] As one commentator has pointed out, allocating the burden of proof to the school authority in no way reflects a lack of deference to the expertise of the school authorities. But there may be, she writes, a tendency to "confuse the Rowley Court's deference to school officials on methodological matters with matters of burden of proof." Dixie Snow Huefner, Judicial Review of the Special Educational Program Requirements Under the Education for All Handicapped Children Act: Where Have We Been and Where Should We Be Going?, 14 Harv. J.L. & Pub. Pol'y 483, 512 (1991). To acknowledge the expertise of school officials is not the same as saying that they should not have to demonstrate to an impartial fact-finder, at least in connection with an initial IEP, that the proposed goals and objectives of the IEP address the student's needs, that the proposed IEP will deliver services to those needs in a way that will provide progress towards those goals and objectives, or that criteria are in place to evaluate the child's progress which can actually measure the extent to which the objectives are obtained. Id. Finally, Wigmore offers this perspective on the burden of proof issue: There is ... no one principle, or set of harmonious principles, which afford a sure and universal test for the solution of a given class of cases. The logic of the situation does not demand such a test; it would be useless to attempt to discover or to invent one; and the state of the law does not justify us in saying that it has accepted any. There are merely specific rules for specific classes of cases, resting for their ultimate basis upon broad reasons of experience and fairness. 9 Wigmore on Evidence, § 2487 at 292 (footnotes omitted).[10] To the extent that the Court writes on a clean slate, therefore, it holds that with regard to an initial IEP, experience and *406 fairness dictate that the school district should have the burden of proof at any administrative due process hearing that might follow. In contrast, not only experience and fairness but clear case law indicate that, when a change is sought in an existing IEP, the party seeking the change should have the burden of proof. Because the case at bar involved the parents' disagreement with a proposed initial IEP, the Court finds the ALJ correctly assigned the burden of proof to MCPS. V. As MCPS points out, "federal courts must accord due weight to state administrative proceedings which are entitled to be considered prima facie correct." See Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir.1991). But what MCPS asks is that the Court defer to the ALJ's findings in Schaffer I as opposed to Schaffer II. Brian's parents argue, not without reason, that the ALJ's findings in Schaffer I are no longer entitled to a presumption of correctness, especially insofar as they were made based upon a misallocated burden of proof. The Court agrees with the parents. Unquestionably the operative administrative decision before the Court is that of Schaffer II. If Schaffer I has any continuing relevance, it is only be insofar as it may lead the Court not to follow findings in Schaffer II because the former seriously undermine the latter. The Court, however, giving due weight to the ALJ's findings in Schaffer II, which is to say acknowledging their prima facie correctness, chooses to follow those findings. Whatever reservations the ALJ may have had in Schaffer I regarding certain aspects of testimony of Brian's experts, the essential and unvarying point of both Schaffer I and Schaffer II is that the evidence was in equipoise. That clearly means that, with the shifting of the burden of proof to MCPS, a conclusion favorable to Brian's parents relative to the FAPE question must follow. The Court is not persuaded by the dramatic suggestion of MCPS that the ALJ has "materially altered" the facts. Since the facts have always been, in the ALJ's judgment, in balance, the case could have been decided either way. The ALJ has now opted in favor of Brian and his parents instead of MCPS and the Court is satisfied with that conclusion. The Court concludes that MCPS did not provide Brian with a FAPE for the school year 1998-99. That aspect of the ALJ's decision will be AFFIRMED. VI. The Court takes a different view with regard to the ALJ's decision to reimburse the parents for only one-half of Brian's tuition for the 1998-99 school year. The ALJ recognized that parents are entitled to be reimbursed by the public education agency for a private placement when the public agency has not provided their child with a FAPE. Sch. Comm. v. Dep't of Educ, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). But because he determined that reimbursement is "equitable in nature," Id. at 374, 105 S.Ct. 1996, and because he found that the parents were always committed to sending Brian to private school come what may, the ALJ concluded that their reimbursement should be limited. MCPS cites authority to the effect that in circumstances such as these—where parents intend to reject any public school placement regardless of the school's recommendation—no reimbursement should be awarded at all. See, e.g., Tucker v. Calloway County Bd. of Educ, 136 F.3d 495, 503, n. 25 (6th Cir. 1998) ("Under IDEA, if the Tuckers unilaterally decided to place Barkley in LCDC, the local school district was not required to pay for that private school *407 education, even though Barkley had a recognized disability and had been receiving special education services from the local school district."). The Court disagrees with both the ALJ and MCPS. The Court accepts that Brian's parents were intent on finding a private school for him even as they sought to have him identified as a student with disabilities under IDEA. It is undisputed that they paid a non-refundable enrollment fee to the McLean School knowing that the Admission, Review and Dismissal (ARD) meeting that was going to review Brian's IEP for the 1998-99 school year had not yet taken place. Nevertheless, on April 6, 1998, the parents attended the ARD committee meeting and indicated that they would review the goals and objectives of the IEP, have private consultants review the IEP, visit the schools to observe the placements offered and thereafter recontact MCPS. From all that appears the parents substantially followed through. They arranged for private consultants to review the IEP, submitted those reviews to MCPS, and Brian's mother visited the Robert Frost Middle School where she met with one of the school's special education teachers.[11] The Court further accepts that the mother told the special education teacher at Frost that she was sure that Frost would not be appropriate for Brian. Finally, the Court accepts the ALJ's finding that the parents did not thereafter recontact MCPS or request any additional services or goals to be added to the child's IEP for the 1998-99 school year.[12] Other than this, there is no suggestion that the parents in any way failed to cooperate in the development of the IEP. On that basis the ALJ found that there was a "predetermined decision" to have Brian attend private school which precluded an award of full funding. The Court notes, in the context of reviewing this issue that, to the extent that the ALJ's decision involves a conclusion of law as opposed to a finding of fact, it is not entitled to a presumption of correctness. The Court reviews the ALJ's conclusions of law de novo. Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993). The question presented—and it is essentially a legal one—is whether parents who are committed to placing their child in private school despite what the IEP might ultimately provide (and who may nevertheless proceed with plans for the private placement) are ipso facto precluded from *408 receiving full reimbursement for the placement even if it is eventually determined that the school authorities did not provide a FAPE. The Court holds that they are not. As the Court observed in Sanger v. Montgomery County Bd. of Educ, 916 F.Supp. 518, 527 (D.Md.1996): Parents who unilaterally change their child's placement during the pendency of review proceedings, without the consent of school officials, may still seek reimbursement for any period in which the placement proposed by the school authority violated IDEA. Sch. Comm. v. Dept. ofEduc, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); Amann v. Stow Sch. Sys., 982 F.2d 644 (1st Cir. 1992). They do so, however, at their own risk; if the school authority's placement is ultimately deemed proper, the parents will not prevail. 916 F.Supp. at 527 (footnote omitted). The critical consideration, as the Court sees it, is not whether the parents have their minds set on private school, but whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible. If they have not, they cannot fairly be heard to complain that the school authorities have failed to develop an IEP and consequently have failed to offer a FAPE for their child. But if they have cooperated—even if throughout they have held to the belief that the best the school authorities can offer will not be good enough—they are entitled, acting "at their own risk," to place the child privately, hoping that eventually they will be able to convince an ALJ or a judge that the child was not offered a FAPE. As citizens and taxpayers, City of Burlington entitles them to nothing less. If subsequent developments show that the parents were correct all along—that their child was not offered a FAPE—their mental reservations are simply irrelevant. Indeed, it is quite conceivable that parents who begin the IEP process certain that the school authorities will not be able to produce an acceptable IEP may become convinced in the course of their joint exploratory efforts with the school authorities that an acceptable IEP can in fact be produced. Additionally, parents whose disabled child is already in private school, who may feel that continuing the child in private school remains the best placement for the child, are nevertheless—as citizens and taxpayers—entitled to request the public school to attempt to develop an IEP for the child, one which might well cause them to change their minds and opt for the public instead of the private program. But in no sense should the parents be penalized merely because they may have entertained strong skepticism about the likely effectiveness of the IEP proposed by the public school authorities. Sanger v. Montgomery County Bd. of Educ, supra, presents a useful contrast to the case at bar. In Sanger, the parents made it clear throughout the process that they were not inclined to consider the IEP, passing up several opportunities to go before the ARD Committee, choosing not to respond to a letter from the Local Coordinating Council that suggested a residential placement for their child and never seeking to visit the facility where the placement was proposed to be made. They were, accordingly, denied reimbursement. In the present case, there is no indication in the ALJ's report that the parents' actions in any way thwarted the school system's ability to propose an IEP for Brian. They cooperated fully in attempting to develop the IEP, dubious though they may have been about its ultimate utility. But, as it turns out, and the ALJ has found, they were correct. Their skepticism was justified. The best that MCPS had to offer did not make the grade as a *409 FAPE. That, in the Court's view, suffices to establish their entitlement. Accordingly, to the extent that the Court is authorized to make factual and legal findings inconsistent with those of the ALJ, it does so on this point. The parents in no way prevented the IEP from being formulated or otherwise failed in good faith to consider it. As a result, they are entitled to full reimbursement for the 1998-99 school year. The decision of the ALJ will thus be REVERSED insofar as he ordered 50% reimbursement for that school year. MCPS will be ordered to make full reimbursement to the parents for the 1998-99 school year. VII. The final matter for consideration is the request of Brian's parents that MCPS be required to pay for Brian's educational placement at the McLean School for the 1999-00 and 2000-01 school years. They argue that the IDEA provides "stay put" protection for a student's current educational placement as a means of preserving the status quo until the underlying IDEA litigation is resolved, citing Drinker v. Colonial Sch. Dist, 78 F.3d 859, 865 (3rd Cir.1996). See also 20 U.S.C. § 1415CJ); 34 C.F.R. § 300.526. MCPS argues, to persuasive effect, that Brian's parents have failed to exhaust their administrative remedies for the 1999-00 and 2000-01 school years and are therefore precluded from raising the issue in this proceeding. While MCPS developed IEPs for the school years 1999-00 and 2000-01 and the parents rejected them, they never sought due process hearings as to either. MCPS prevails on this point. The Fourth Circuit, in the recent case of MM v. Sch. Dist, 303 F.3d 523, 536 (4th Cir. 2002) held that: When parents of a disabled child challenge multiple IEPs in court, they must have exhausted their administrative remedies for each academic year in which an IEP is challenged (emphasis in original). The parents' request for reimbursement for the school years 1999-00 and 2000-01 will therefore be DENIED. VIII. Summing up: 1) The Court will AFFIRM the decision of the ALJ insofar as he found that MCPS did not provide Brian with a FAPE for the school year 1998-99; 2) It will REVERSE the ALJ's decision with regard to the right of Brian's parents to receive reimbursement for Brian's private school tuition for the school year 1998-99 and will ORDER that they receive full reimbursement for that year; 3) The request of Brian's parents for reimbursement for the school years 1999-00 and 2000-01 will be DNIED. A separate Order will be ENTERED implementing this decision, including appropriate rulings on the parties' Cross-Motions for Summary Judgment. FINAL ORDER OF JUDGMENT The Court has considered pending Motions in the captioned proceeding. Accordingly it is for the reasons set forth in the accompanying Opinion this 21 day of November, 2002 ORDERED: 1) Defendants' Motion for Summary Judgment (Paper No. 45) is GRANED: A) The Court AFFIRMS the decision of the Administrative Law Judge insofar as he found that MCPS did *410 not provide Brian Schaffer with a FAPE for the school year 1998-99; B) The Court REVERSES the decision of the Administrative Law Judge insofar as he would award Brian's parents reimbursement for only one-half of the tuition costs for that year; C) MCPS is DIRECTED TO REIMBURSE the Schaffers for Brian's full tuition for said school year; 2) Plaintiffs' Cross-Motion for Summary Judgment (Paper No. 51) is DENIED; 3) Defendants' Motion for Preliminary Injunction (Paper No. 41) is DNIED; 4) All other pending Motions are MOOT; 5) Final judgment is ENTERED in favor of Defendants herein; 6) Counsel for the parents may submit an appropriate Petition for Fees. NOTES [1] Plaintiff Weast is the Superintendent of the Montgomery County, Maryland Public School System (MCPS) Plaintiffs will be referred to collectively hereinafter as "MCPS." [2] The first time this case was before him (Schaffer I), the ALJ denied the parents reimbursement. Finding that assignment of the burden of proof in the case was "critical" to his decision and assigning that burden to the parents, he concluded that they had failed to demonstrate that the Individualized Educational Plan (IEP) devised for Brian was not reasonably calculated to provide educational benefit or that the placement offered by MCPS was not appropriate to provide for the child's education in accordance with the IDEA. Brian's parents appealed the decision to this Court, which granted their motion for summary judgment and issued an opinion reallocating the burden of proof to MCPS. See Brian S. v. Vance, 86 F.Supp.2d 538 (D.Md. 2000). Based on that reallocation of the burden of proof, the case was remanded to the ALJ for further proceedings. Notwithstanding the apparent interlocutory nature of the Court's decision, MCPS took an appeal to the Fourth Circuit. While that appeal was pending, the ALJ considered the case anew and applied this Court's revised burden of proof scheme. Revisiting his earlier decision, the ALJ reversed himself and concluded that the proposed IEP would not have provided Brian with a FAPE for 1998-99. However, the ALJ also concluded that, while Brian's parents were entitled to reimbursement for the private placement, since they never seriously contemplated placing him in public school, they should receive only no more than onehalf of the tuition paid for Brian's private education for the indicated school year. The Fourth Circuit, viewing the case in that posture, ruled: In light of this development, we vacate the decision of the district court and remand to that court with directions that any issue with respect to the proof scheme in this case be consolidated with the consideration on the merits. At this stage, it remains unclear what role, if any, the allocation of the burden of proof will have on the final adjudication of Brian's claim. Moreover, there may well be cross-appeals of the ALJ's decision since neither party prevailed fully at the hearing stage. If this court is to address the issue of who has the burden of proof in challenging an initial IEP, it should be in the context of a matured case or controversy rather than in the piecemeal fashion in which this case now appears before us. Accordingly, the judgment of the district court is vacated and remanded for further proceedings consistent with this opinion. Schaffer v. Vance, 2 Fed. Appx. 232, 2001 WL 22920 (4th Cir.2001). The ALJ has now rendered his decision on remand (Schaffer II)and the parties have cross-appealed that decision. As the Court will discuss presently, the issue of which side bears the burden of proof was once again critical to the ALJ's decision. [3] Summary judgment is appropriate where there is no genuine issue of material fact. Fed.R.Civ.P. 56. The parties apparently agree that such is the case here, the only issue being what conclusions should be drawn from undisputed facts. On the other hand, the Court is also the trier of fact in an appeal from an administrative decision in an IDEA case. Accordingly, the Court can also (and indeed will) judge this appeal as the trier of fact, especially where—as here—the parties have added no evidence to the record beyond what the ALJ had before him. Cf. Marathon Mfg. Co. v. Enerlite Prod. Corp., 767 F.2d 214, 217 (5th Cir.1985) (holding that where the parties stipulate that the court may make findings of fact on the basis of the record at the summary judgment hearing, the court may determine the facts rather than merely whether factual issues exist). [4] Under the "inclusion model" at Herbert Hoover, Brian would have been in a class of between 24-28 students. Those classes would be co-taught by a certified special education teacher and another teacher (not certified as a special education teacher). The certified special education teacher would focus on and provide special education services to 5-6 students in the class who had IEPs. Brian would have been one of those 5-6 students. [5] There is at least one further scenario, in which both the parents and the school district seek to change an existing plan. Discussion of which party has the burden of proof in that setting is best left for another day. [6] But not all circuits agree that assignment of the burden should be thus. In Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533 (3d Cir. 1995), for instance, the Third Circuit held that the burden should always be upon the school district. See also Oberti v. Bd. of Educ, 995 F.2d 1204, 1219 (3d Cir.1993). [7] It is not always clear from the language of these cases whether they are addressing the burden of proof at the administrative level, in the district court, or both. The cases are often cited, however, as standing for the proposition that the party seeking to change an existing IEP bears the burden of proof at the administrative level. See, e.g., T.H. v. Bd. of Educ, 55 F.Supp.2d 830, 835 n. 5 (N.D.Ill. 1999); Schmerling v. Anne Arundel County Bd. of Educ, Civ. No. WMN 98-2283 slip op. at 5 (D.Md. May 19, 1999); Manchester Sch. Dist. v. Charles M.F., No. CIV. 92-609-M, 1994 WL 485754, at *4 (D.N.H. Aug. 31, 1994). [8] This Court would add a further observation: The Congressional statements and declarations that appear at the beginning of the IDEA refer to minority children, see, e.g. 20 U.S.C. § 1400(b)(7) to (10), in particular economically disadvantaged minorities. Id. at § 1400(b)(8)(C). Strictly speaking, if parents in those categories have the burden of persuasion at the administrative level, their failure to put on a prima facie case would mean that the school district could rest without having to produce any evidence in justification of the IEP. On the other hand, parents who can afford to retain counsel and experts, while still having the burden of persuasion, could at least force the school district to produce evidence in support of the IEP. Query, whether such a result is fair, apart from whether Congress could have intended it. [9] Of course the same argument could be made in support of assigning the burden to the school board at any level—that it should always be required to demonstrate the propriety of the plan that it proposes. That, in fact, appears to be the rationale of those cases that have assigned the burden to the school board at all levels. [10] Accord Edmund M. Morgan, Basic Problems of Evidence 28 (4th ed.1963): The truth seems to be, and many of the modern decisions expressly state, that the allocation of the burden is to be determined by considerations of fairness, convenience and policy. Such considerations require the exercise of a sound judgment and prior judicial experience, as revealed in past decisions, has strong persuasive effect. [11] Although the parents failed to visit the Herbert Hoover Middle School, the record does not indicate whether this was the result of a decision of the parents not to cooperate with MCPS, whether the visit was canceled by MCPS, or whether it was canceled by mutual agreement. [12] However, the ALJ suggested that MCPS bore some responsibility for this state of affairs: The conduct of MCPS experts also leaves much to be desired. MCPS experts failed to develop an IEP that was reasonably calculated to provide the Child with "significant learning" and "meaning educational benefit." The Parents' experts had evaluated the Child and provided reports of those evaluations. Those reports were provided to MCPS. The independent assessments of the Child were extensively reviewed and considered by MCPS experts. An MCPS expert accepted the independent psychoeducational evaluation of the Child but rejected the educational setting recommended. An MCPS expert accepted, inpart, the independent speech-language assessment of the Child but rejected the educational setting recommended. MCPS experts made no effort to contact the Parents' experts and discuss those reports and recommendations. Lack of contact by MCPS experts with the Parents experts may have played a role in the failure by MCPS to develop an IEP appropriate to the Child's educational needs and offer an appropriate placement.

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PATRICK BERGSRUD, No. 17-17181 Plaintiff-Appellant, D.C. No. 2:14-cv-01592-RFB-GWF v. MEMORANDUM* BANK OF AMERICA, N.A., FKA Countrywide Home Loans Servicing LP, as Successor by merger to BAC Home Loans Servicing, LP; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding Submitted December 17, 2018** Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges. Patrick Bergsrud appeals from the district court’s summary judgment in his diversity action challenging a foreclosure sale. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Bourne Valley Court Tr. V. Wells Fargo * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Bank, NA, 832 F.3d 1154, 1157 (9th Cir. 2016). We affirm. The district court properly granted summary judgment for defendant Bank of America, N.A. on Bergsrud’s claims to set aside the foreclosure sale and quiet title because Bergsrud filed this action after the statute of limitations to challenge procedural defects to the sale had run, and assuming without deciding that these deadlines were subject to equitable tolling, Bergsrud failed to establish that equitable tolling should apply. See Nev. Rev. Stat. § 107.080(5) and (6) (an action to void a trustee’s sale must commence within 90 days of the date of the sale, or 120 days of the date of actual notice of the sale where the person entitled to notice did not receive proper notice); City of N. Las Vegas v. State Local Gov’t Emp.- Mgmt. Relations Bd., 261 P.3d 1071, 1077 (Nev. 2011) (standard under Nevada law for equitable tolling). The district court properly granted summary judgment on Bergsrud’s wrongful foreclosure claim because Bergsrud failed to raise a genuine dispute of material fact as to whether the property was not in default at the time of the foreclosure sale. See Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623 (1983) (elements of a wrongful foreclosure claim under Nevada law). We do not consider matters raised for the first time on appeal, or matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. 2 17-17181 Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. 3 17-17181 

714 F.2d 135 Williamsv.Morgan 83-6096 UNITED STATES COURT OF APPEALS Fourth Circuit 7/21/83 1 D.Md. AFFIRMED

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 31,406 10 CIPRIANO BOTELLO, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Lisa C. Schultz, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Cipriano Botello 18 Hobbs, NM 19 Pro Se Appellant 20 MEMORANDUM OPINION 21 FRY, Judge. 22 Defendant Cipriano Botello appeals the district court’s denial of his motion for 23 reconsideration of sentence. This Court filed a notice of proposed summary  1 disposition on September 21, 2011, proposing to dismiss the appeal because 2 Defendant’s notice of appeal was filed one day late. Defendant filed a memorandum 3 in opposition on October 3, 2011, which we have given due consideration. 4 Unpersuaded, we dismiss Defendant’s appeal. 5 Rule 12-201(A)(2) NMRA requires that a notice of appeal shall be filed “within 6 thirty (30) days after the judgment or order appealed from is filed in the district court 7 clerk’s office.” The New Mexico Supreme Court has held that timely filing a notice 8 of appeal is a mandatory precondition to this Court’s exercise of jurisdiction. Trujillo 9 v. Serrano, 117 N.M. 273, 277-78, 871 P.2d 369, 373-74 (1994). 10 Our review of the record shows that the order denying Defendant’s motion to 11 reconsider sentence was filed on May 10, 2011. [RP 361] Defendant, acting pro se, 12 filed his notice of appeal thirty-one days later on Friday, June 10, 2011. [RP 363] 13 Accordingly, the mandatory precondition has not been met, nor has Defendant pointed 14 out any unusual circumstances, such as late filing caused by an error of the court, that 15 might provide a sufficient reason to overlook the lateness. Id. 16 For the reasons stated above, we dismiss this appeal. 17 IT IS SO ORDERED. 2 1 2 CYNTHIA A. FRY, Judge 3 WE CONCUR: 4 5 JAMES J. WECHSLER, Judge 6 7 TIMOTHY L. GARCIA, Judge 3 

21 F.3d 430NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. CITY OF JEFFERSONVILLE, INDIANA, and JeffersonvilleDepartment of Redevelopment, Plaintiffs-Appellees,v.William A. WRIGHT, Defendant-Appellant. No. 93-1055. United States Court of Appeals, Seventh Circuit. Submitted March 15, 1994.*Decided April 14, 1994. Before CUDAHY, EASTERBROOK and MANION, Circuit Judges. ORDER 1 On January 17, 1991, the City of Jeffersonville and the Jeffersonville Department of Redevelopment filed suit in state court seeking to acquire by eminent domain several parcels of real estate belonging to William A. Wright. See Ind.Code Sec. 32-11-1 et seq. Nine lienholders were also named as defendants. Citing 28 U.S.C. Secs. 1331, 1441, and 1443, Wright petitioned to remove the case to federal district court on the ground that it involved the adjudication of constitutional rights which he could not effectively vindicate in state court, as he is currently serving a prison sentence in Kentucky. Wright now appeals from the district court's order remanding the case to state court. 2 Wright filed a notice of removal on October 14, 1992, claiming that he first became aware that the case was removable when the plaintiffs filed a brief in state court which asserted that the court possessed the authority to enter judgment against Wright without him being present. That brief was filed in the Clark Circuit Court on September 18, 1992. Acting sua sponte, the district court ordered the case remanded to state court on the grounds that removal was not accompanied by the requisite filing fee and was untimely under 28 U.S.C. Sec. 1446(b), and that Wright's claim that he could not receive due process in state court was "entirely spurious." 3 An order remanding a case to state court on one of the grounds listed in Sec. 1447(c) is not appealable, unless the case was removed pursuant to Sec. 1443. In re Amoco Petroleum Additives Co., 964 F.2d 706, 708 (7th Cir.1992); 28 U.S.C. Sec. 1447(d). The plaintiffs contend that Sec. 1443 does not apply to this case, and that the remand order is not subject to our review under Sec. 1447(d). The record establishes that Wright sought to remove this case to federal court on several grounds, including 28 U.S.C. Sec. 1443, and that the district court concluded that his invocation of Sec. 1443 was without merit. We therefore have jurisdiction to review this determination. 4 Section 1443(1) provides for the removal of a civil action commenced in state court "[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, ..." 28 U.S.C. Sec. 1443(1). The Supreme Court has determined that a case may be removed under this provision only if the petitioner is deprived of a right secured by a federal law that specifically deals with racial equality. Johnson v. Mississippi, 421 U.S. 213, 219 (1975). Section 1443 does not apply to protect rights guaranteed by constitutional or statutory provisions of general applicability, such as the Due Process Clause of the Fourteenth Amendment. Id.; Georgia v. Rachel, 384 U.S. 780, 792 (1966); J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267, 269 n. 2 (7th Cir.1990). Because Wright has not alleged that he has been deprived of any right that is specifically defined in terms of racial equality, the district court was correct in concluding that he could not use Sec. 1443 as a basis for removing this case to federal court. 5 Insofar as Wright generally invoked the federal question jurisdiction of the district court, 28 U.S.C. Sec. 1331, and the district judge remanded the case on the basis of defects in removal procedure (including the fact that Wright's petition was untimely under 28 U.S.C. Sec. 1446(b)), we are without jurisdiction to review the merits of that aspect of the judge's order. See In re Amoco, 964 F.2d at 708; 28 U.S.C. Sec. 1447(c)-(d). 6 AFFIRMED in part, DISMISSED in part. * After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record

    FIFTH DIVISION  December 31, 2001 No. 1-99-1888 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS VASQUEZ, Defendant-Appellant. ))))) )))) Appeal from the Circuit Court of Cook County Honorable Colleen McSweeney-Moore, Judge Presiding. JUSTICE QUINN delivered the opinion of the court: Defendant, Luis Vasquez, was charged by indictment with first degree murder, armed robbery and aggravated battery.  Following a jury trial defendant was found guilty of armed robbery and acquitted of the other charges.  After the verdict, the State moved to have defendant, who was 16 at the time of the offense, sentenced as an adult.  The trial court granted the motion and defendant was sentenced to a term of 30 years' imprisonment in the Illinois Department of Corrections.  Defendant now timely appeals. On appeal defendant argues that his case must be remanded for a new sentencing hearing where: (1) the sentencing statute under which defendant was charged as an adult is unconstitutional as being violative of the single subject rule; (2) the trial court abused its discretion in failing to take into account all statutory factors enumerated in the sentencing statute; and (3) defendant's sentence was disparate to that of his codefendants. I.   Background The pertinent facts of the case involve the events that took place during the evening hours of January 24, 1997.  Assistant State's Attorney Kari Mason testified at trial that she was assigned to investigate the first degree murder and armed robbery of Joaquin Diaz.  Mason stated that after speaking with detectives assigned to the case, she met with the sixteen-year-old defendant at Area 1 police headquarters on January 27, 1997.  Defendant's mother was present for this interview.  After advising defendant of his Miranda rights, defendant stated that on January 24, 1997, at 8 p.m. he was with Claudio Martinez, Anthony Saucedo and Marcos Sanchez in a van driving around.  Defendant told Mason that while driving they saw two members of the Party People gang, a gang which was a rival of his gang.  Defendant stated that he was a member of the La Raza gang.  Defendant stated that they stopped the van and exited the vehicle looking to fight with the Party People.   Defendant said that as they approached the two Party People, he noticed that there was nothing in their hands.  He said that one of "his boys" threw a bottle at one of the Party People.  Defendant told Mason that the person who was struck picked up the bottle and threw it back, striking defendant in the eye.  Defendant stated that he then approached the person who threw the bottle at him and punched him in the head.  He said that he saw his friend Anthony Saucedo, also know as T-Bone, with a stick or pipe.  Mason testified that at that point defendant's mother told defendant not to answer any more questions.  Mason also stated that she observed defendant's left eye was bruised and cut. Ivan Flores testified for the State under a grant of use immunity.  Flores testified that on January 24, 1997, he was a member of the La Raza gang and was nicknamed "Little Popeye."  Flores stated that defendant was also a member of La Raza on that date and that his nickname was "Popeye."  Flores testified that he was riding in a van on January 24, 1997, with defendant, Martinez (nicknamed "Flaco"), Saucedo (nicknamed "T-Bone"), Sanchez (nicknamed "Pelon") and two girls, drinking beer.  Flores said that while riding in the van someone yelled there were some Party People.  Flores stated that the van stopped and Pelon, T-Bone, Flaco and Popeye got out of the van.  Flores testified he saw a bunch of people fighting and beating each other, but he was unable to identify each person's exact activity.  Flores testified that he saw one of the four La Raza gang members with a pipe striking one of the Party People, but he could not identify which of the four it was.   Assistant State's Attorney John Maher then testified that on January 26 he obtained a written statement from Flores.  Flores' statement provided a more detailed version of the incident.  Maher testified that Flores told him that Martinez exited the van with a beer bottle.  Flores stated Saucedo had a pipe in the van, but Sanchez actually exited the vehicle with that pipe.  Maher also testified that Flores told him that one of the Party People, the one who was hit with the bottle, was "getting his ass kicked by three or four La Raza guys" while the other Party People member had run away.  Flores told Maher that Martinez hit one of the two mem over the head with a bottle.  Additionally, Flores told Maher that defendant came back to the van wearing the leather coat of the boy whom everyone was "stomping."  Maher stated that Flores read the statement, reviewed it, made corrections and signed every page. Urbano Alvarez testified, through the assistance of an interpreter, that on January 24, 1997, at around 8 p.m., he left his house with Joaquin Diaz headed for Diaz's house on Washtenaw Avenue.  Alvarez stated that both he and Diaz were wearing leather jackets that evening.  Alvarez testified that while crossing 60th Street, he noticed a group of people, all dressed in black, walking toward them.  Alvarez said he turned around and saw a van behind them.  Alvarez stated that one of the people in the group, whom he later identified as Martinez, pulled off his hood, said "La Raza ------------" and hit Diaz with a beer bottle.  Alvarez stated that a different person, whom he later identified as Saucedo, had a metal or wood pipe.  Alvarez stated that while he was held by the arm, he saw about four people beating Diaz, who was lying on the ground.  Alvarez testified that he managed to free himself and run toward Diaz's home to get help from Alfredo Monroy and James Monroy, Diaz's cousins.  Alvarez stated that the group was still beating Diaz when he left.  Alvarez said that when he returned, Diaz was lying on the opposite side of the street covered in blood. Jamie Monroy testified that on January 24, 1997, Urbano came to his house on Washtenaw Avenue, yelling that Diaz was being beaten.  Jamie was living at that house with his brother Alfredo, Diaz and two friends.  Jamie testified that as he left the house, shortly after Urbano and Alfredo, he saw a blue van parked in front of his house.  Jamie stated that he walked slowly past the van and then ran to where Diaz was lying on the ground.  Jamie testified that Diaz was covered in blood and that when he put his hands behind Diaz's head he felt that the back of Diaz's head was open.   Alfredo Monroy testified that after Urbano came to the house he ran to where Diaz was being beaten.  Alfredo testified that he saw Diaz on the ground and another "guy" beating him in the chest and face.  Alfredo said he yelled and the "guy" pulled Diaz's jacket off and ran through a passage way between two houses.  Alfredo later identified Sanchez in a lineup as the person still on top of Diaz as they approached. Dr. Mitra Kalelkar, assistant chief medical examiner, testified that on January 26, 1997, she performed an autopsy on Joaquin Diaz.  Dr. Kalelkar testified regarding the extensive injuries to Diaz's head.  Dr. Kalelkar noted very severe hemorrhages underneath the scalp, a fractured and depressed skull cap and a severely contused brain.  In Dr. Kalelkar's opinion, these injuries were consistent with being struck with a metal pipe.  Dr. Kalelkar opined that Diaz died as a result of extensive cranial cerebral injuries. Defendant testified on his own behalf at trial.  Defendant admitted that in January of 1997 he was a member of the La Raza gang.  Defendant testified that on January 24, 1997, he was with T-Bone, Flaco, Pelon, Little Popeye, and two girls "drinking and smoking weed" in a van.  Defendant stated that while driving around in the area of 59th and Washtenaw, he and Flaco (Martinez) exited the van at a friend's house.  Defendant testified that at that point they saw two Party People walking towards them.  Defendant admitted that 59th and Washtenaw was Party People territory and that the Party People gang was at war with the La Raza gang.  Defendant stated that when they approached the Party People, a fist fight began.  Defendant stated he was hit with a beer bottle near his eyebrow.  Defendant testified that at that point he returned to the van and left Martinez still fighting.  He saw T-Bone (Saucedo) exit the van with a pipe.  Defendant testified that he remained in the van until the fight was over.  Defendant denied that they were driving in the area looking to fight with Party People.  Defendant admitted that he was arrested and taken to Area 1 with Martinez, Sanchez and Flores on January 25 but denied ever speaking to any police officers while there. In rebuttal, Officer Frank Valdez testified that he spoke with the defendant on January 26th at Area 1.  Valdez stated that the defendant told him that he was home all day on January 24th under home confinement.   At the close of all the evidence, the jury returned a verdict finding defendant guilty of the armed robbery of Joaquin Diaz but not guilty of the first degree murder of Diaz and not guilty of the aggravated battery of Alvarez.  The State subsequently filed a  motion to have the defendant sentenced as an adult pursuant to section 5-4-(6)(c)(ii) of the Juvenile Court Act (705 ILCS 405/5-4(6)(c)(ii) (West 1996)).  On May 5, 1999, the motion was granted and the case proceeded to sentencing.   During sentencing, the State called Officer Bill Quinn.  Quinn testified that on January 23, 1996, in responding to a gang disturbance call, he arrested defendant, along with 11 others, for underage drinking.  A handgun, thrown to the floor by Michael Reyes, was recovered at the scene.  Saucedo was arrested on that date along with the defendant.  On the way to the police station, defendant admitted he was a member of the La Raza gang. Officer Bochnak testified that he arrested defendant on April 7, 1996, for assault.  The victim informed officers that he and defendant got into a verbal altercation when defendant pointed a handgun at the victim.  Defendant admitted that he was a member of the La Raza gang. Officer John C. Haggerty testified that on November 22, 1996, he responded to a battery call at approximately 8:00 p.m.  The victim informed Haggerty that about five La Raza gang members approached him and began to beat him.  The victim identified both defendant and Saucedo as two of the people who beat him.  Defendant again admitted that he was a member of the La Raza gang. Defendant did not present any evidence in mitigation.  The trial court sentenced the defendant to 30 years' imprisonment in the Illinois Department of Corrections.  Defendant's motion to reduce or reconsider the sentence was denied.  Defendant now timely appeals. II.  ANALYSIS A.  Constitutionality of the sentencing statute In his opening brief, defendant argued that the amendment to section 5-4(6)(c)(ii) was passed as part of Public Act 88-680 (eff. January 1, 1995), known as the "Safe Neighborhoods Law" which was subsequently struck down by our supreme court in People v. Cervantes , 189 Ill. 2d 80 (1999).  The State responded that the amendment was actually passed in Public Act 88-239.  Defendant concedes this issue for the purposes of appeal and therefore, we deem it waived for review. B.  Abuse of discretion Defendant argues that his sentence must be remanded for a new hearing on his eligibility for sentencing as an adult where the trial court abused its discretion.  In this case, although defendant was only 16 years old at the time of the offense, he was charged as an adult pursuant to section 5-4(6)(a), which provided: "The definition of delinquent minor under Section 5-3 of this Act shall not apply to any minor who at the time of the offense was at least 15 years of age and who is charged with first degree murder * * *. These charges and all other charges arising out of the same incident shall be prosecuted under the Criminal Code of 1961."  705 ILCS 405/5-4(6)(a) (West 1992) Although defendant was acquitted of first degree murder, the defendant was convicted of armed robbery.  Therefore, defendant was sentenced under section 5-4(6)(c)(ii), which provided: "(ii) If after trial or plea the minor is only convicted of an offense not covered by paragraph (a) of this subsection (6), the conviction shall not invalidate the verdict or the prosecution of the minor under the criminal laws of the State; however, unless the State requests a hearing for the purpose of sentencing the minor under Chapter V of the Unified Code of Correction, the Court must proceed under Sections 5-22 and 5-23 of this Act.  Should the State request a hearing it must do so by written motion within 10 days following the entry of a finding or the return of a verdict.  Reasonable notice of the motion shall be served upon the minor or his counsel.  If the motion is made by the State, the court shall conduct a hearing to determine if the request should be granted.  In making its determination on the motion, the court shall consider among other matters: (a) whether there is evidence that the offense was committed in an aggressive and premeditated manner; (b) the age of the minor; (c) the previous history of the minor; (d) whether there are facilities particularly available to the Juvenile Court or the Department of Corrections, Juvenile Division, for the treatment and rehabilitation of the minor; (e) whether the best interest of the minor and the security of the public require sentencing under Chapter V of the Unified Code of Corrections; and (f) whether the minor possessed a deadly weapon when committing the offense."  705 ILCS 405/5-4(6)(c)(ii) (West 1996). We note that section 5-4(6)(c)(ii) was amended effective January 1, 1994.  Prior to that date, section 5-4(6)(c)(ii) required the trial court to sentence the defendant to the juvenile division of the Department of Corrections when the defendant was found not guilty of murder.  Defendant maintains that the trial court failed to take all statutorily enumerated factors into account when determining whether he should be sentenced as an adult or transferred back to juvenile court for a dispositional hearing. The trial court is bound to consider the specific criteria set forth in the Juvenile Court Act.   People v. Ollins , 231 Ill. App. 3d 243, 247, 595 N.E.2d 1295 (1992).  However, no one factor is determinative nor must each factor be given equal weight.   People v. Martin , 285 Ill. App. 3d 623, 631, 674 N.E.2d 90 (1996).  Not all of the statutory criteria must be resolved against the minor to justify treating him as an adult.  See People v. Sistrunk , 259 Ill. App. 3d 40, 48, 630 N.E.2d 1213 (1994). "Where the record shows that the [trial] court considered all the factors and its determination is not an abuse of discretion, then the ruling will be affirmed on appeal."   People v. Martin , 285 Ill. App. 3d at 631. The record in this case shows that the State filed a motion requesting a hearing for the purpose of sentencing the defendant as an adult. The defense requested and received a 30-day continuance to prepare a response to the State's motion.  The trial court then conducted a hearing and reviewed the evidence relating to the statutory factors.  Defendant only takes issue with the trial court's evaluation of the fourth and fifth factors provided in the statute.  As the trial court properly evaluated and applied the statutory factors, we find that the trial court did not abuse its discretion in sentencing the defendant as an adult. We first note that defendant maintains that the statutory factors in section 5-4(6)(c)(ii) to be considered in a "transfer back" hearing are "nearly identical to the factors the juvenile court must consider in making a determination whether to transfer a juvenile to the adult court" under 5-4(3)(a).  Defendant concludes, therefore, that the factors should be evaluated in precisely the same manner.  However, defendant cites no case law for the proposition that the factors are to be analyzed in such a manner. Defendant cites People v. Brown , 301 Ill. App. 3d 995, 1008, 705 N.E.2d 162 (1998), which stated: "By allowing the trial court discretion to determine whether to transfer the juvenile back to juvenile court, the trial court is afforded the opportunity to balance the interests of the community and the minor in reaching a sentencing determination, just as it had an opportunity to balance the interests in reaching a prosecutorial determination.  Further, the trial court should use the same guidelines provided in section 5-4(3)(b) in reaching a decision on whether to transfer the juvenile." However, the defendant in Brown was 14 at the time of the offense and therefore was not subject to the mandatory transfer provision in section 5-4(6)(a).   The State points out that in cases involving mandatory transfer, our supreme court has held: "[t]he legislature itself balanced the competing interests of minor offenders and society where it is alleged that a minor has committed 'murder, [or] aggravated criminal sexual assault' and 'was at least 15 years of age' at the time of the alleged offense. [Citation.]   Under these circumstances, the legislature struck the balance in favor of societal security by vesting exclusive jurisdiction over these alleged juvenile offenders within the criminal court."   People v. Clark , 119 Ill. 2d at 13.  Therefore, while the factors may be evaluated similarly, unlike the straight balancing between the interests of the minor and society when the defendant is under 15 years of age in section 5-4(3)(a), when a minor is mandatorily transferred to criminal court pursuant to section 5-4(6)(c)(ii), a balancing has in essence already occurred, weighing in favor of protecting society.   We note that there are subtle differences in the language of the two statutes.  While the fourth factor under section 5-4(3)(b) requires the court to consider whether "there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor" (705 ILCS 405/5-4(3)(b) (West 1996)) the fourth factor under section 5-4(6)(c)(ii) requires the court to consider whether "there are facilities particularly available to the Juvenile Court or the Department of Corrections, Juvenile Division, for the treatment and rehabilitation of the minor" (705 ILCS 405/5-4(6)(c)(ii) (West 1996)).  Likewise, the fifth factor under section 5-4(3)(b) requires the court to consider whether "the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority" (705 ILCS 405/5-4(3)(b) (West 1996)) where the fifth factor under section 5-4(6)(c)(ii) asks whether "the best interest of the minor and the security of the public require sentencing under Chapter V of the Unified Code of Corrections" (705 ILCS 405/5-4(6)(c)(ii) (West 1996)). Even if we were to accept defendant's argument that trial courts should consider the factors in section 5-4(6)(c)(ii) in the same manner as the factors in section 5-4(4)(3), we note that section 5-4(4)(3.3)(a) provides: "If the State's Attorney files a motion under subsection (3)(a) to permit prosecution under the criminal laws and the petition alleges the commission by a minor 15 years of age or older of: (i) a Class X felony other than armed violence***and the State's Attorney's motion to transfer the case alleges that the offense committed is in furtherance of the criminal activities of an organized gang***and, if the juvenile judge designated to hear and determine motions to transfer a case for prosecution in the criminal court determines that there is probable cause to believe that the allegations in the petition and motion are true, there is a rebuttable presumption that the minor is not a fit and proper subject to be dealt with under the Juvenile Court Act of 1987, and that, except as provided in paragraph (b), the case should be transferred to the criminal court."  705 ILCS 405/5-4(3.3)(a) (West 1996). In the instant case, it is clear that the attack on Diaz was committed in furtherance of the criminal activities of defendant's gang.  Consequently, even if we were to apply the factors of section 5-4(3.3)(a), we would be compelled to find that defendant has failed to rebut the presumption that he is not a fit and proper subject to be dealt with under the Juvenile Court Act.   Defendant argues that the trial court erroneously evaluated the fourth factor under the statute because, in sentencing defendant, the court did not specifically refer to the defendant's exposure to juvenile programs.  The record reveals that the trial court, at the conclusion of the hearing on the State's section 5-4(6)(c)(ii) motion, stated: "Based on the factors enumerated in the statute, I find that this crime, under subsection A, was committed in an aggressive and premeditated manner.  The evidence before me suggested that the defendant joined with his fellow gang members in a specific mission to seek out and harm rival gang members.  The aggressiveness of the crime is shown by the numbers of the defendant and his gang members against the victim in this case, and the deadly weapon that was used to kill the victim.  The defendant was 16 at the time of the offense.  The only evidence before me at this juncture is a prior aggravated assault finding as a juvenile.  Based on the actions of the defendant and his accountability for the actions of his fellow co-defendants, his rehabilitative potential is certainly questionable.  Based on his actions, even at his young age, certainly the public needs to be protected from him.  And the defendant was accountable for a deadly weapon being possessed and used to beat to death the victim in this case.  For all these reasons, I find that the defendant shall be sentenced as an adult under the Unified Code of Corrections Chapter 5."   Although defendant is correct in stating that the trial judge did not specifically mention the availability of treatment or rehabilitation services in juvenile court or the juvenile division of the Illinois Department of Corrections, that alone is not conclusive proof that the trial judge did not evaluate this factor.  See People v. Luckett , 295 Ill. App. 3d 342, 348, 692 N.E.2d 1345 (1998).  As the court in Luckett noted, the fourth factor was mentioned to the trial judge by both the prosecutor and the defense counsel.   In the case at bar, defense counsel addressed the fourth factor stating "there's been no evidence that he is incapable under D of being held in a particular juvenile Department of Corrections.  There's been no evidence to suggest that this young man cannot go to the juvenile Department of Corrections or that he or his behavior is somehow indicative of an individual that has to be housed in an adult facility."  In the written section 5-4(6)(c)(ii) motion, the State addressed the fourth factor,  stating "given the fact that defendant is now 18 years old, the State does not believe the defendant requires a specific or a particular juvenile facility."  Additionally, the prosecution notified the trial court in its section 5-4(6)(c)(ii) motion that defendant was on juvenile probation for a prior aggravated assault when he committed the instant offense and listed defendant's numerous contacts with the law.  Some of those prior contacts involved codefendants in this particular case.  The trial court's comment regarding its skepticism of defendant's rehabilitative potential was based upon the information provided by both defense counsel and the State.  In considering defendant's continued criminal actions, "even at his young age," the court determined defendant's proper place remained in the criminal court.  This determination was made in a manner consistent with this court's holding in People v. Luckett , 295 Ill. App. 3d 342, 348, 692 N.E.2d 1345 (1998). In the instant case, the defendant makes the additional argument that the trial court could not properly consider whether defendant was amenable to treatment where the record does not reflect that the court was informed as to whether defendant was ever in any rehabilitation programs unique to the juvenile court or the juvenile division of the Department of Corrections.  However, the fourth factor requires the trial court to consider "whether there are facilities particularly available to the Juvenile Court or the Department of Corrections, Juvenile Division, for the treatment and rehabilitation of the minor." (Emphasis added.) 705 ILCS 405/5-4(6)(c)(ii) (West 1996). Defendant's contention on appeal that a sentencing court cannot comply with the fourth factor unless it is aware of the defendant's prior participation, if any, in rehabilitation programs is simply belied by the plain language of the statute. Defendant also argues that the trial court erroneously evaluated whether the best interest of the minor and the security of the public required sentencing defendant as an adult.  During the section 5-4(6)(c)(ii) hearing, the court explicitly stated, "based on his actions, even at a young age, certainly the public needs to be protected from him."  The court further stated that "defendant was accountable for a deadly weapon being possessed and used to beat to death the victim in this case."  The prosecutor argued that "the acts of this defendant clearly show that he has to be sentenced as an adult and not to think of the best interest of the defendant because obviously he, under the theory of accountability, is responsible for every single harm that was done to our victim and the taking of a leather jacket is what the jury found him guilty of."  The prosecutor briefly reminded the court of the extensive injuries the young victim suffered and the fact that defendant is a self-admitted gang member.  The State's motion indicated that the prior criminal history of the defendant supported sentencing him as an adult to protect the public.   Although defendant insists that the fifth factor requires a court to take into account the potential time in prison a juvenile will face, defendant cites to cases that evaluate the statutory factors used in a section 5-4(3)(a) determination.  See People v. Clark , 119 Ill. 2d 1, 518 N.E.2d 138; see also People v. D.B. , 202 Ill. App. 3d 194, 559 N.E.2d 873 (1990).  Cases interpreting the factors enumerated in section 5-4(6)(c)(ii), however, have not required the same.  The court in Luckett merely stated, when reviewing the trial court's section 5-4(6)(c)(ii) determination, "[a]s far as the fifth factor, the defendant's actions clearly indicate a need to protect the public by sentencing the defendant as an adult."   People v. Luckett , 295 Ill. App. 3d at 348.  Further, as recently noted by our supreme court in People v. Morgan , Nos. 88508, 88513 cons., (October 18, 2001): "[I]t is worth noting that in a later version of the Act, the legislature amended the statute on discretionary transfers to add: 'In considering these factors, the court shall give greater weight to the seriousness of the alleged offense and the minor's prior record of delinquency than to the other factors listed in this subsection.' (Emphasis added.) 705 ILCS 405/5-805 (West 2000)."   Morgan , slip. op. at 12. Importantly, in a "transfer back" hearing, the decision whether to sentence defendant as an adult is made by the same court that will ultimately sentence the defendant.  In making a determination pursuant to section 5-4(3)(a), the juvenile court is considering mere allegations.  In making a determination pursuant to section 5-4(6)(c)(ii), the criminal court is considering the proper disposition of a defendant's case when he has been convicted after a trial.  In the instant case, immediately prior to trial, the court advised defendant of the potential sentences he faced.  In sentencing a defendant as an adult to a specific term of years, the criminal court judge is obviously taking into account not only the term of years the defendant potentially faces, but also the term of years he or she will actually impose.   Based upon the record, we find that the trial court properly weighed the fifth factor in its determination as well. Defendant does not contend that the trial court improperly weighed the other four factors under section 5-4(6)(c)(ii): the offense could not have been committed in a more aggressive manner, defendant was 16 at the time of the offense and 18 at the time of sentencing, the previous history of the defendant, and the defendant's codefendants used a deadly weapon to murder the unarmed victim.  For all the above reasons, we hold that the trial court did not abuse its discretion when it determined that the defendant should be sentenced as an adult. C.  Disparate sentence               Defendant also argues that his sentence should be reduced or his cause remanded where defendant's sentence was disparate to his codefendants' sentences.  Specifically, defendant maintains that while he was sentenced to 30 years in prison for armed robbery, his codefendants were sentenced to 25 years' imprisonment for first degree murder and a consecutive 6-year sentence for armed robbery.  Although his sentence was nearly equivalent to that of his codefendants, defendant maintains that the sentences are disparate because he was convicted of a less serious crime.  We disagree. Sentencing is a matter taht rests within the sound discretion of the trial court, and therefore, if it is within the statutory limits, a sentence will not be disturbed on appeal unless the trial judge abused that discretion.   People v. Nutall , 312 Ill. App. 3d 620, 635, 728 N.E.2d 597 (2000).  "The general rule as to the question of whether defendant's sentence was unfairly disparate is that arbitrary and unreasonable disparity between the sentences of similarly situated codefendants is impermissible."   People v. Taylor , 318 Ill. App. 3d 464, 477, 742 N.E.2d 357 (2000).  A mere disparity in sentences does not, by itself, establish a violation of fundamental fairness.   People v. Caballero , 179 Ill. 2d 205, 216, 688 N.E.2d 658 (1997).  In addition, the trial court is in the best position to determine the appropriate punishment, and its decision is entitled to great weight and deference.   People v. Fern , 189 Ill. 2d 48, 53, 723 N.E.2d 207, 209 (1999); People v. Modrowski , 296 Ill. App. 3d 735, 751, 696 N.E.2d 28 (1998). In Taylor , this court rejected an argument virtually identical to the defendant's argument in the case at bar.  In Taylor , the defendant was sentenced to concurrent terms of 24 years on charges of armed robbery and home invasion, and 4 years on a charge of residential burglary.  Defendant argued that his sentence was disproportionate where Caples, an equally culpable codefendant, pled guilty to the more serious crime of murder and received only a 20-year sentence.  We held that "[a] sentence imposed on a codefendant who pleaded guilty as part of a plea agreement does not provide a valid basis of comparison to a sentence entered after trial."   People v. Taylor , 318 Ill. App. 3d at 477, citing People v. Caballero , 179 Ill. 2d at 217, 688 N.E.2d 658.  As we acknowledged: "In Caballero , the supreme court found that the codefendant who pled guilty (1) acknowledged his guilt and showed willingness to assume responsibility for his conduct; (2) made a public trial unnecessary; and (3) gave cooperation which resulted in the successful prosecution of another offender engaged in equally serious or more serious criminal conduct. [Citation.] As a result, the supreme court found that the defendant could not establish that the disparate treatment of himself and his codefendant was unreasonable or unwarranted."   People v. Taylor , 318 Ill. App. 3d at 477. "Dispositional concessions are properly granted to defendants who plead guilty since the public interest in the effective administration of criminal justice is served."   People v. Nutall , 312 Ill. App. 3d at 636.   In the case at bar, defendant was sentenced to 30 years' imprisonment for armed robbery.  Armed robbery is a Class X offense, carrying a sentencing range from 6 to 30 years.  720 ILCS 5/18-2 (West 1996); 730 ILCS 5/5-8-1(a)(3) (West 1996).  Therefore, although it was the maximum nonextended sentence allowable, defendant's sentence was clearly within the statutorily permissible range.  The record establishes that the codefendants in this case entered into voluntary negotiated guilty pleas, whereby they pled guilty to the offenses of first degree murder and armed robbery with respect to Joaquin Diaz.  In exchange, the State recommended, and the trial court imposed, consecutive sentences of 25 years for first degree murder and 6 years for armed robbery.  The State nol-prossed the remaining attempted armed robbery and aggravated battery charges with respect to victim Urbano Alvarez.  The defendant declined the plea agreement and chose to proceed to trial.  In this case, defendant cannot establish that his sentence was disparate to that of his codefendants. For the foregoing reasons, we affirm the defendant's convictions and sentence . Affirmed. CAMPBELL, P.J., and GREIMAN, J., concur.             

200 F.Supp.2d 1346 (2002) Donnie GRANGER, et al., Plaintiffs, v. Marshall J. WILLIAMS, Jr., Defendant. Kenneth E. Lightner, et al., Plaintiffs, v. Marshall J. Williams, Jr., Defendant. Nos. CIV.A. 00-D-1175-N, CIV.A. 00-D-1705-N. United States District Court, M.D. Alabama, Northern Division. January 24, 2002. *1347 A. Wesley Pitters, A. Wesley Pitters, P. C., Montgomery, AL, for Plaintiffs. C. Winston Sheehan, Jr., Allison L. Alford, Ball, Ball, Matthews & Novak, P.A., Montgomery, AL, for Defendant. MEMORANDUM OPINION AND ORDER DE MENT, District Judge. Before the court is a Motion For Summary Judgment ("Mot."), which, along *1348 with a supporting brief, was filed by Defendant Marshall J. Williams, Jr., ("Williams") on November 14, 2001. (Doc. Nos. 13, 14.) Plaintiffs Donnie Granger, Johnny Wilson, Kenneth Lightner, Richard Johnson, and Evelyn Person ("Granger", "Wilson", "Lightner", "Johnson", "Person", and collectively "Plaintiffs") jointly filed a Response ("Resp.") on December 14, to which Williams filed a timely Reply on December 20. (Doc. Nos. 24, 26.) Accompanying said Reply were three Motions to Strike, to which Plaintiffs have not responded. (Doc. Nos. 21-23.) However, Plaintiffs have filed a Supplemental Brief to further buttress their arguments. (Doc. No. 27.) After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Williams' Motions to Strike are due to be granted in part and denied in part; similarly Williams' Motion For Summary judgment is due to be granted in part and denied in part. I. JURISDICTION AND VENUE The court exercises subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1343(a)(3). The parties do not contest personal jurisdiction or venue. II. SUMMARY JUDGMENT STANDARD When a party moves for summary judgment, the court construes the evidence and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment is entered only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely "determine[s] whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). This determination involves applying substantive law to the pertinent facts that have been developed. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the nonmoving party, based on the applicable law in relation to the evidence presented. See id. at 248, 106 S.Ct. 2505; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If this task is satisfied, the burden then shifts to the non-moving party, which must designate specific facts remaining for trial and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An action will be dismissed when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. See id. at 587, 106 S.Ct. 1348. III. FACTUAL BACKGROUND The present matter focuses upon the hiring and promotion practices of Williams, the white Sheriff of Barbour County, Alabama. Plaintiffs are African-Americans who allege that Williams' practices in the employment context violated their right to Equal Protection under the law as secured by the Fourteenth Amendment. Lightner, Johnson, Granger, and Wilson ("male Plaintiffs") each allege that they applied for the position of deputy, but that Williams did not hire them on the basis of their race; Person, on the other hand, was already employed in the Barbour County jail, but she alleges that she was denied an internal promotion because of her race. *1349 Though the suits, which are brought against Williams in both his individual and official capacities,[1] originally began as two separate matters, the factual overlap compelled the court to consolidate the cases on March 1, 2001. (Doc. No. 11.) The following is an account of those overlapping facts, viewed in the light most favorable to Plaintiffs. Williams has served as the Sheriff of Barbour County since November of 1998. (Williams Dep. at 25.) Although he retained the deputies of the previous administration, he restructured the hierarchy in that, rather than there being one chief deputy, he made two captains, each designated to patrol a portion of Barbour County. (Williams Aff. ¶ 2.) Williams points out that one of these captains, Stern Neumon ("Neumon"), is an African-American, and that in his tenure he has also hired three other African-Americans. (Id. at 2, 3.) Additionally, he contends that he extended job offers to a number of African-Americans who simply did not accept them. (Id. at 3.) He does acknowledge that he did not extend offers to the male Plaintiffs and that he did not promote Person, but he also contends that he likewise did not extend offers to several white applicants. (Williams Dep. at 88-89, 160; Williams Aff. at 4.) Nevertheless, Williams admits that, in the end, each of the respective positions sought by Plaintiffs was filled by a Caucasian. (Williams Aff. ¶ 8.) Prior to applying for a deputy position at Barbour County, Lightner had five years of law enforcement experience with the Clayton Police Department. (Lightner Dep. at 60-62.) Indeed, the majority of this tenure was served as a certified police officer, as he was a 1991 graduate of the Southwest Alabama Police Academy. (Id. at 61-62.) During the latter part of the last decade, Lightner worked several higher paying jobs as a security officer, but he was still a reserve officer, and, in fact, he had worked under Williams at this time. (Id. at 27-28, 71-75.) In January of 1999, Lightner submitted an application for a deputy sheriff position, and Williams informed him that he did not hire part-time deputies, but that Lightner's application would be considered if he left his full-time job as a security officer. (Id. at 31, 104.) Williams contends that, while some of his full-time deputies have part-time jobs outside the force, permitting the deputies to have additional full-time jobs would interfere with their duties. (Williams Aff. ¶ 7.) However, Neumon, Barbour County's African-American captain deputy, testifies that Williams permitted a white deputy named Robin Daniels to retain full-time employment with another police department.[2] (Neumon Aff. ¶ 14.) Lightner apparently *1350 opted to retain his full-time security officer position, for, beyond charges of racism, he offers no other evidence surrounding the denial of his application. Johnson also attended the Southwest Alabama Police Academy, having graduated in 1989. (Johnson Dep. at 47.) Thereupon he worked at the Clio Police Department for five years, the latter of which found him serving as chief of police. (Id. at 74-77.) Although he moved to Clayton where he served as a patrolman from 1994 to 1998, he returned to Clio thereafter where he was reinstated to his present position in the police force. (Id. at 77, 80.) Nonetheless, when Johnson submitted an application to Williams, he was not hired. (Williams Dep. at 88-89.) Williams contends that the rejection was based on the fact that Johnson owned and operated a game room, and because he had heard rumors suggesting that Johnson's wife sold drugs. (Id.) At the time, however, he did not inform Johnson that these were the reasons for refusing to hire him. (Id. at 101.) Granger likewise had extensive service in law enforcement prior to seeking employment under Williams. (Granger Dep. at 26-32.) With the exception of a few brief stints as a truck driver in 1990, 1993, and 1998, Granger has been employed by a number of law enforcement agencies since 1987. (Id.) In fact, he served as a deputy sheriff with the Barbour County Sheriff's Department from 1993 to 1996, and as a narcotics investigator under the Barbour County District Attorney from 1996 to 1998. (Id. at 29.) Toward the end of his time as a narcotics investigator and the beginning of Williams' tenure as sheriff, Granger unsuccessfully sought employment, despite having submitted two applications. (Id. at 49.) Williams told him that the job was promised to a white male named Michael Saad, but should Saad back out, Granger would get the job. (Granger Aff. ¶ 2.) However, neither Saad nor Granger was ever hired. (Id.) Williams asserts that he decided not to hire Granger upon learning that he had received a three-day suspension without pay for spraying a prisoner with a water hose in 1995. (Williams Dep. at 88; Williams Aff. ¶ 6; Granger Dep. at 101-03.) Williams never discussed the issue with Granger. (Williams Dep. at 101.) Wilson is another police academy graduate who began his career in law enforcement in 1986. (Wilson Dep. at 26.) However, he was seriously injured in an automobile accident in 1988, and he did not work for approximately ten years thereafter, instead surviving on social security *1351 disability payments. (Id. at 27, 30, 64-65.) He returned to police work in 1998, but such a livelihood has suffered intermittent interruptions due to his disability. (Id. at 65-67.) Prior to Williams' election as the sheriff of Barbour County, Wilson unsuccessfully sought employment as a deputy, allegedly due to his disability. (Id. at 103-04.) He later submitted an application to Williams and spoke on occasion with Williams about the matter. (Id. at 127-28.) Williams told him that he would be in touch when there was an opening, but Wilson never received a call. (Wilson Aff. ¶ 2.) Williams points out that Wilson had been arrested for harassment once, and that, when Wilson was a police officer, a woman filed a complaint concerning his behavior during a traffic stop. (Wilson Dep. at 142; Williams Dep. at 143.) He also alleges having heard that Wilson consumed alcohol while on duty. (Williams Dep. at 88.) Again, these incidents were never discussed with Wilson. (Id. at 101.) Person, the final Plaintiff, has worked at the Barbour County Jail for approximately fourteen years, and she presently serves as the jail's supervisor. (Person Dep. at 26-27.) She attended a course in jail management in 1994 where she learned the basic skills integral to jail administration ranging from booking new inmates to dealing with their day-to-day needs. (Id. at 16-17.) These general skills are put to work in her daily tasks which range from administrative, clerical, and care-giving. (Id. at 27.) Shortly after Williams became the sheriff, Person spoke with him about becoming the jail administrator, and submitted an application for the same. (Id. at 36-37.) However, a white female was hired for the position and was given a white assistant, even though neither was a certified jailer like Person. (Person Aff. ¶ 4.) Williams alleges that Person's application did not specifically request the position of jail administrator, and that when she asked him about the position it was already filled. (Williams Dep. at 55; Person Dep. at 70-71.) Moreover, he contends that she was not deserving of the promotions since her personnel file contained complaints as to tardiness, suspected mishandling of funds, and poor interpersonal skills. (Person Dep. at 38-57.) Not only were the positions sought by Person filled by whites, but the deputy sheriff positions were also filled by three whites, Lonnie Adams, Brian Smith, and Larry Hubbard. (Williams Aff. ¶ 8.) None of these formally submitted an application to Williams; they simply approached him in person having heard that he was hiring, and they subsequently were hired. (Williams Dep. at 119.) He even bought out their present contracts to immediately get their services. (Id.) At this time, Adams had yet to finish training at the police academy, and Smith and Hubbard had only recently graduated. (Id. at 106; Neumon Aff. ¶ 7.) Williams points out, however, that he was unaware of any significant blemishes on their records to make them unworthy candidates. (Williams Aff. ¶ 8.) By the same token, neither does he recall engaging in a significant investigation into their backgrounds. (Williams Dep. at 118.) However, Neumon has testified that he brought to Williams' attention the fact that Hubbard had been indicted for theft, to which Williams responded that the felony indictment had been reduced to a misdemeanor.[3]*1352 (Neumon Aff. ¶ 8.) Williams offers the testimony of Berry Forte, an African-American Barbour County Commissioner, who states that Williams asked him if he knew of "any black folk" that might be interested in being his deputy. (Forte Dep. at 25.) The record does not indicate when this conversation was held. Neumon has testified that he was regularly consulted whenever a black sought employment, and although Neumon recommended that Williams hire each of the male Plaintiffs as deputies, Williams disagreed saying "I have to be careful when it comes to hiring a black deputy. I'd rather be safe than sorry." (Neumon Aff ¶ 5, 10.)[4] Moreover, not only did Williams never inform the male Plaintiffs as to his alleged reasons for not hiring them, he never shared these reasons with Neumon.[5] (Id. at 9-12.) As no other relevant evidence has been offered by either parties, the court will now proceed to analyze the preceding facts in the light most favorable to Plaintiffs. IV. DISCUSSION Although Plaintiffs bring their discrimination claims pursuant to both 42 U.S.C. § 1981 and 42 U.S.C. § 1983, the court finds that the claims are due to be merged into a single cause of action under § 1983. See Godby v. Montgomery Co. Bd. of Educ., 996 F.Supp. 1390, 1411 (M.D.Ala.1998); see also Butts v. County of Volusia, 222 F.3d 891, 893 (11th Cir. 2000) (holding that "§ 1983 constitutes the exclusive remedy against state actors for violations under § 1981"). Under such a cause of action, Plaintiffs can establish discriminatory intent by either circumstantial or direct evidence. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). This distinction is important, for the analytical framework applied by the court varies depending upon the type of evidence in consideration. Id. Whereas circumstantial evidence creates merely a rebuttable presumption of discrimination, see Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), direct evidence shifts the burden of proof to a defendant to "prove by a preponderance of the evidence that the same employment decision would have been made in the absence of the discriminatory intent." Standard, 161 F.3d at 1330. A. Discriminatory Hiring Practice Claims The male Plaintiffs argue that Williams' remarks that he had "to be careful when it comes to hiring a black deputy," and that he would "rather be safe than sorry" constitute direct evidence that race played an improper role in Williams' employment decisions. Direct evidence is "evidence from which a reasonable trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected characteristic." Wright v. Southland Corp., 187 F.3d *1353 1287, 1298 (11th Cir.1999). The Eleventh Circuit has observed that "a statement that members of a racial minority in general ... are simply not competent enough to do a particular job would seem to be a classic example of direct evidence." Haynes v. W.C. Caye & Co., 52 F.3d 928, 931 (11th Cir.1995) (holding that statement regarding fitness of women for particular job constituted direct evidence of gender discrimination). While not denying having made the statements, Williams insists that they are subject to interpretation insofar as he has made efforts to seek out "qualified black applicants." (Mot. at 3-4.) He has provided the court with no plausible alternative interpretations, however, beyond the plain intention conveyed by the language: race played a factor in Williams' employment decisions. Cf. Miles v. M.N.C. Corp., 750 F.2d 867, 873-74 (11th Cir.1985) (holding that racial slur in the context of a discussion of workforce composition constituted direct evidence of discrimination). Williams apparently is arguing that his alleged search for African-American candidates calls into question whether or not race "played a motivating part in an employment decision." Haynes, 52 F.3d at 931 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 242, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)). The only evidence he offers in this regard are his own testimony and the statement of Forte, the County Commissioner, who testified that Williams approached him and inquired whether he knew of "any black folk" who might want a job. (Williams Dep. at 90; Forte Dep. at 25.) Context is the key consideration in the direct evidence analysis, and no evidence is offered as to the context of the conversation Williams shared with Forte. It may have occurred when Williams took office, or it may have taken place when Williams found himself subjected to discrimination lawsuits. But more importantly, the possibility that Williams was actively seeking prospective black applicants does not negate the proposition laden in his statements, namely that he is especially scrupulous when considering such applicants. Without more, the evidence is insufficient to minimize the significance of Williams' statements that explicitly were made to Neumon in the context of deciding not to give consideration to African-Americans. The record is not clear as to whose application was under consideration when Williams made the statements, although the Neumon affidavit indicates that Williams commented as such with respect to at least three of the deputy applicants. (Neumon Aff. ¶ 10.) It should not matter, though, at least for purposes of the male Plaintiffs, whether the comment was made in the context of only one of their applications, for it indicates a general reluctance on the part of Williams to hire black deputies. See EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1287 (11th Cir.2000) (holding that "direct evidence of an intent to discriminate may be used to establish a pattern or practice claim"). As such, the court finds that the male Plaintiffs have established direct evidence that Williams inappropriately used race as a factor in the hiring of deputies. Although Williams has also offered non-discriminatory reasons for his decision not to hire Plaintiffs, in the face of direct evidence, the burden is his to establish, by a preponderance of the evidence, that he would have made the same decision notwithstanding his discriminatory intent. Standard, 161 F.3d at 1330. His proffered justifications were never expressed to Plaintiffs, and they contradict other evidence in the record.[6] Because the facts at *1354 this stage are to be viewed in the light most favorable to Plaintiffs, the court finds that there are genuine issues of fact as to whether the four male Plaintiffs were denied employment on the basis of their race. Cf. Moore v. Alabama State Univ., 980 F.Supp. 426, 434 (M.D.Ala.1997) (denying summary judgment in the face of direct evidence of gender discrimination). Accordingly, summary judgment is due to be denied on the male Plaintiffs' claims.[7] B. Person's Failure to Promote Claim Notwithstanding the forgoing discussion, the court does not believe that Williams' remarks can be construed as direct evidence of Person's failure to promote claim. Not only was Person not seeking a position as a Barbour County deputy, she was already employed by Barbour County. While Williams' remark plainly attests to his misgivings when it comes to initiating new deputies into his force, it does not so readily indicate a similar misgiving as to the race of his present employees in a different division. The argument might be made that Williams' statement is emblematic of an overarching policy to curtail any and all employment opportunities on the basis of race, but this conclusion is inferential. Accordingly, for purposes of Person's claim, Williams' statement is to be regarded merely as circumstantial evidence of discrimination. See Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989) ("Direct evidence of discrimination would be evidence which, if believed, would prove the existence of fact without inference or presumption.") (emphasis added). The court applies the McDonnell Douglas burden-shifting analysis to cases involving circumstantial evidence of discrimination. Standard, 161 F.3d at 1331. Under this approach, Person's initial burden is to establish a prima facie case, thereby creating a presumption of discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). She can establish a prima facie case of discrimination in this regard by pointing to evidence showing that (1) she is African-American; (2) she was qualified for the position as Barbour County jail administrator; (3) she was not promoted; and (4) a white person ultimately filled the position *1355 sought. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); see also Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir.1988). Williams may rebut the presumption, however, by producing evidence that his decision not to promote Person was "for a legitimate, non-discriminatory reason." Hicks, 509 U.S. at 506, 113 S.Ct. 2742. Person then must show that the proffered justifications were merely pretextual, at all times bearing the ultimate burden of proving intentional discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. The court is satisfied that Person has established a prima facie case on her claim. She is black and the eventual jail administrator (as well as the assistant jail administrator) is white. Person's extensive experience and training with regards to jail administration reflect positively on the extent of her qualifications, especially given the significant overlap between such qualifications and the duties required of the jail administrator. (Person Dep. at 17-18, 27; Williams Dep. at 72-74.) Indeed, Williams does not appear to contest Person's prima facie case; rather his argument focuses on allegedly legitimate and non-discriminatory reasons for not promoting Person. Williams offers a number of reasons as to why he did not promote Person, the first being that he was never made aware of her interest in the position. The application that Person submitted did not give mention of the position of jail administrator; rather, on the line denoting the "Employment Desired," Person merely wrote "Same as now." (Person Dep. Ex. B.) In her deposition, she testified that when she first expressed to Williams her interest in the position that he replied that the position was already filled.[8] (Person Dep. at 70-71.) Indeed, Williams testified that Hartzog, the white jail administrator appointed by Williams, was already serving as acting jail administrator when Williams took office and that he formally appointed her in recognition of her experience with the position. (Williams Dep. at 55-56.) The only evidence even remotely touching upon the issue of race is Williams' statement as to the hiring of black deputies. The court recognizes the probative value that such a statement might have in terms of showing that all employment decisions made by Williams were tainted by discriminatory intent. However, the court also observes the necessity of avoiding the slippery slope of concluding that all dissatisfied employees suffer their plight due to their race. It is noteworthy in this regard that Hartzog was already acting as the jail administrator and Williams was given no reason to believe she should not continue in her position. Moreover, Williams has presented a significant number of negative reviews from Person's personnel file suggesting that her qualifications are less impressive than she might believe.[9] Indeed, *1356 Williams argues that Person's prior shortcomings as an employee would have prevented him from promoting her, even had he been aware of her desire for promotion. Not only does the court believe these reasons to be legitimate and non-discriminatory, it finds that Williams statements to Neumon do not suggest that Williams' justifications are pretextual. The court simply does not find there to be sufficient evidence for Person's claim to reach a jury, so summary judgment is due to be granted on her failure to promote claim. V. ORDER Based on the foregoing, it is CONSIDERED and ORDERED that Defendant Marshall J. William's Motions To Strike be and the same are hereby GRANTED in part and DENIED in part, and that William's Motion For Summary Judgment be and the same is hereby GRANTED in part and DENIED in part. As Plaintiff Evelyn Person's claim has been dismissed, the clerk is DIRECTED to remove her name from the caption of the present matter. NOTES [1] Because Alabama law recognizes county sheriffs as executive officers of the state, lawsuits seeking money damages against such officers are barred by the Eleventh Amendment. Carr v. City of Florence, Ala., 916 F.2d 1521, 1524-25 (11th Cir.1990). Accordingly, only the claim seeking injunctive relief against Williams in his official capacity may proceed; all other claims against him in his official capacity are due to be dismissed. See Tinney v. Shores, 77 F.3d 378, 383 (11th Cir. 1996). However, all claims against Williams in his individual capacity may proceed, subject only to the defense of qualified immunity which will be discussed infra note 7. [2] Williams objects to this testimony on the grounds that Neumon had no basis for knowing such matters. See Fed.R.Civ.P. 56(e) (requiring that "affidavits shall be made on personal knowledge"). As one of Barbour County's Captain Deputies, Neumon was occasionally consulted on employment matters. (Neumon Aff. ¶ 5.) The court is satisfied that he was aware of the employment status of his fellow workers. The court notes that it would have been better had Plaintiffs deposed Daniels, but it cannot conclude that Neumon's assertions are outside the ambit of his experience such that the affidavit is due to be stricken. Cf. White v. Wells Fargo Guard Servs., 908 F.Supp. 1570, 1577-78 (M.D.Ala.1995) (striking portions of affidavit where "the affiant does not claim to know anything" about the underlying facts). Accordingly, the Motion To Strike this portion of Neumon's affidavit is due to be denied. At this point, it is necessary to address Williams' three Motions To Strike. In all, he requests that portions of sixteen paragraphs be stricken from the record, and some of his contentions are meritorious. For instance, Person testifies that "Williams utilized no objective criteria" in making his job determination. (Person Aff. ¶ 5.) The court agrees that such self-serving, conclusory allegations have no possible basis in personal knowledgewhether as much can be inferred from her other testimony is the actual issue. For the sake of efficiency, the court does not deem it necessary to explicitly rule on every objection at this point, however. Rather, for purposes of this Motion For Summary Judgment, "the court will implicitly address any meritorious objection as needed in its consideration of this motion" by simply not considering the testimony in question. Owens v. Superfos, 170 F.Supp.2d 1188, 1190 n. 1 (M.D.Ala.2001) (internal quotations omitted). On the other hand, when the court relies upon certain evidence, it will indicate the reasons for overruling the objections. In short, the three Motions To Strike are due to be granted in part and denied in part. [3] Williams objects to this testimony on the grounds that Neumon had no basis for knowing such matters. See Fed.R.Civ.P. 56(e) (requiring that "affidavits shall be made on personal knowledge"). The court first notes that it believes Neumon was aware of what he said to Williams. Moreover, as Neumon was a high-ranking police officer with access to such records, the court infers sufficient basis for knowing the facts of an individual's arrest. Cf. Owens, 170 F.Supp.2d at 1190 n. 1 (finding that basis for knowing can be inferred from the nature of the affiant's employment status). Accordingly, the Motion to Strike this portion of Neumon's affidavit is due to be denied. [4] Williams objects to a portion of these paragraphs in Neumon's affidavit, but his Motion To Strike does not specifically refer to the present language. This is for good reason as Neumon undoubtedly had a basis to know that Williams made such a comment; moreover, the statement is not hearsay insofar as it goes to motive for it is not admitted for the truth of whether Williams had to be careful, but rather that he might have been motivated by race. See Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1141-42 (9th Cir.2001). [5] Here the court only refers to admissible testimony to which Williams did not specifically object. [6] Each of the male Plaintiffs gained employment in the law enforcement field both prior to, and following Williams' rejection of their applications. This fact calls into question the persuasiveness of Williams' argument that he would not have hired them anyway. It can be countered, of course, that Williams simply has higher expectations of his police officers than other police forces in the area, but this conclusion is seriously undermined upon consideration of the evidence before the court. For instance, although he claims to have been concerned about Johnson's moral character, he did not appear bothered by the criminal background of Larry Hubbard, a white deputy Williams subsequently hired. Additionally, the disparity between Williams' ultimatum to Lightner while permitting Robin Daniels to retain a full-time job at least raises a material fact as to Williams' true motive. Finally, it is unclear whether Granger's and Wilson's allegedly unprofessional histories were known to Williams at the time he chose not to hire them, and, even if they were known to him, whether a jury would find them to be sufficient reasons for overlooking the significant disparity in work experience between these two and the white deputies Williams came to hire. [7] Williams seeks to invoke the defense of qualified immunity for the claims brought against him in his individual capacity. (Mot. at 18.) The defense is available only to government officials performing discretionary functions in such a manner that infringes on a right that was not clearly established at the time of the conduct. "It is clearly established that the equal protection clause affords ... a right to be free from racial discrimination." Busby v. City of Orlando, 931 F.2d 764, 775 (11th Cir.1991). Because the facts raise a jury issue as to whether Williams intentionally violated this clearly-established right, he cannot seek protection in the qualified immunity doctrine. [8] This statement is contradicted by a portion of Person's affidavit which states Williams had not yet appointed Hartzog when Person discussed the position with him. (Person Aff. ¶ 3.) The general rule is that affidavits are due to be stricken when they are "inherently inconsistent with [prior] deposition testimony." Rice v. Barnes, 149 F.Supp.2d 1297, 1300 (M.D.Ala.2001). However, even were the court to conclude that this unexplained inconsistency raised a genuine issue of fact as to whether Williams was actually aware of Person's employment desire, the legitimate reasons discussed below are sufficient to rebut her prima facie case. See infra note 9. [9] Indeed, just weeks before she filled out her application, she was suspected of stealing from the department's petty cash funds. (Person Dep. Ex. E.) Also, her supervisory skills were given the lowest marks possible in an internal job evaluation which also criticized her bookkeeping skills. (Person Dep. Ex. I.) These two incidents are in addition to a number of previous instances in which she was written up for shoddy workmanship, rudeness, and arriving to work late. (Mot. at 12-13.)

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 9, 2004 Session OFFICE OF THE ATTORNEY GENERAL, CONSUMER ADVOCATE AND PROTECTION DIVISION v. TENNESSEE REGULATORY AUTHORITY Appeal from the Tennessee Regulatory Authority No. 03-00060 No. M2003-01363-COA-R12-CV - Filed December 21, 2005 WILLIAM C. KOCH , JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined. OPINION ON PETITION FOR REHEARING On November 29, 2005, this court issued an opinion finding that the Tennessee Regulatory Authority (Authority) failed to follow the requirements of then-existing law when it declined to convene a contested case proceeding with regard to BellSouth Telecommunications, Inc.’s “Welcoming Reward Program” tariff. Both the Authority and BellSouth have filed timely petitions for rehearing in accordance with Tenn. R. App. P. 39 with regard to portions of that opinion. I. SCOPE OF THE REMAND The Authority has expressed doubt with regard to the significance of our remand instructions in light of our conclusion that the dispute regarding the “Welcoming Reward Program” tariff is moot because the program expired before the appellate record was filed with this court. Notwithstanding the expiration of the program, we remanded the case to the Authority “for further proceedings consistent with this opinion.” This standard instruction does not require any particular action by the Authority with regard to the “Welcoming Reward Program.” It is intended to allow the Authority to take whatever actions it deems necessary to conclude this matter consistent with this court’s opinion. Depending on the facts of the particular case, these actions may be nothing more than taxing costs or collecting any applicable fees.  II. THE APPLICATION OF TENN . CODE ANN . § 65-5-101(c) (SUPP. 2005) Both the Authority and BellSouth assert that we overlooked Tenn. Code Ann. § 65-5-101(c) in the portion of our opinion discussing the standards for determining whether it should convene a contested case proceeding to review a proposed tariff. This statute supplies specific standards and gives the Authority broad discretion with regard to convening a contested case proceeding. However, the statute was not in effect when the Authority considered the tariff at issue in this case.1 Our opinion measured the Authority’s actions at issue in this case against the law in effect at the time. Proceedings occurring after July 1, 2004 will, of course, be measured against Tenn. Code Ann. § 65-5-101(c) to the extent it is applicable. III. THE RIGHT OF THE CAPD AND THE BELLSOUTH COMPETITORS TO A HEARING IN THIS PROCEEDING As a final matter, both the Authority and BellSouth express concern with Section IV of our November 29, 2005 opinion in which we concluded that the CAPD and BellSouth’s competitors had not waived their right to take issue on this appeal with the denial of their petitions for a contested case hearing. They assert that instead of making a waiver argument, they were arguing that the CAPD and BellSouth’s competitors simply failed to present sufficient evidence to the Authority to warrant convening a contested case proceeding. We adhere to our conclusion that the CAPD and BellSouth’s competitors did not waive their right to insist on appeal that the Authority should have granted them a contested case hearing. We likewise adhere to our conclusions (1) that both the CAPD and BellSouth’s competitors presented particularized allegations alleging the illegality of the proposed tariff, (2) that they demonstrated specifically how they would be injured by the proposed tariff, and (3) that these matters had not been addressed by the Authority in earlier proceedings. As the law stood at the time, these showings should have been sufficient to trigger a contested case hearing. As Director Jones pointed out in his April 25, 2003 dissent to the order denying the petitions for suspension of the tariff and for a contested case hearing: The record here shows that as a result of the aggrieved entities in this docket expressing concerns that affected their interests, the majority ordered the Petitioner to make amendments to its original filing. The majority’s very actions of ordering amendments consistent with the pleadings of the aggrieved entities rendered this proceeding a de facto contested case proceeding. Here, substance over form is crucial. Nevertheless, the majority disregarded the 1 The Authority’s final order denying the petitions to suspend the tariff and to convene a contested case proceeding was filed on April 14, 2003. The effective date of Tenn. Code Ann. § 65-5-101(c) was July 1, 2004. Act of April 7, 2004, ch. 545, § 2, 2004 Tenn. Pub. Acts. 1335, 1336. -2-  administrative consequences of its actions in favor of erecting a standard for the convening of a contested case that apparently requires an entity to prosecute its entire case on the front end in order to secure the judicial rights contemplated in Tennessee’s Uniform Administrative Procedures Act. The filings of the CAPD and BellSouth’s competitors, coupled with their presentations and arguments during the proceedings before the Authority, provided ample basis for convening a contested case proceeding.2 IV. The petitions for rehearing filed by the Authority and BellSouth are denied. We tax the costs related to these petitions in equal proportions to the Tennessee Regulatory Authority and to BellSouth Telecommunications, Inc. _______________________________ WILLIAM C. KOCH, JR., P.J., M.S. 2 This result could conceivably have been different had this proceeding taken place after July 1, 2004 because Tenn. Code Ann. § 65-5-101(c)(3)(C)(i) would have required the complaining party to demonstrate a “substantial likelihood of prevailing on the merits of its complaint. . . .” -3- 

837 F.2d 1093 Wachterv.City of Mobile* NO. 87-7089 United States Court of Appeals,Eleventh Circuit. JAN 14, 1988 1 Appeal From: S.D.Ala. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 23

THE STATE OF SOUTH CAROLINA In The Court of Appeals The State, Respondent, v. Jermaine Marquel Bell, Appellant. Appellate Case No. 2017-001500 Appeal From Chester County Paul M. Burch, Circuit Court Judge Opinion No. 5742 Heard March 10, 2020 – Filed July 8, 2020 REVERSED Appellate Defender David Alexander and Appellate Defender Sarah Elizabeth Shipe, both of Columbia, for Appellant. Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, and Senior Assistant Attorney General W. Edgar Salter, III, all of Columbia; and Solicitor Randy E. Newman, Jr., of Lancaster, for Respondent. GEATHERS, J.: Jermaine Bell appeals his conviction of murder, for which he was sentenced to life imprisonment. Bell argues the circuit court erred in allowing the decedent's husband and daughter to testify regarding statements purportedly made by the decedent indicating that she believed Bell was stealing from her. We reverse.  FACTS The decedent, Judy Lindsay, and her common law husband, Mitchell Mayfield, lived in Chester County. Judy and Mayfield had one son, two daughters, and several grandchildren. Their youngest daughter, Jessica, lived at home with Judy, Mayfield, and Jessica's children. The family was well known in their neighborhood, and people would often gather to socialize on the family's front porch. One such person was Jermaine Bell, who was friends with Jessica and her brother. The family had a unique relationship with Bell, as they often ran him off or told him not to come around, only to invite him over later or allow him back, oftentimes after he procured sodas or other drinks for the family. During the weekend of Judy's death, Bell, who was transient, spent the night of Friday, September 11, 2015, on the family's couch. On Saturday, September 12, 2015, Bell was gone before anyone else woke up. That same day, Judy and Jessica attended a funeral before Judy went to church to sing with the choir. After returning from church, Judy changed into a pair of pants and a t-shirt. Judy joined Jessica, who had been drinking alcohol,1 on the porch to smoke a cigarette. Mayfield also joined them on the porch before going to bed around 11:00 or 11:30 p.m.2 At some point, Jessica telephoned Bell and invited him to join them on the porch. When Bell arrived, Jessica gave him a shot of liquor. After socializing on the porch for a while, Jessica called her cousin and asked him to take her to get something to eat. When she returned about fifteen to twenty minutes later, Judy and Bell were still on the porch, and Bell was still drinking. Upon finishing her food, Jessica smoked a cigarette and went to bed around 12:30 or 12:45 a.m. As Jessica was heading to bed, Judy indicated that she was going to stay on the porch until she finished her cigarette. Bell was still on the porch with Judy when Jessica went to bed. On Sunday, September 13, 2015, Mayfield woke up around 5:00 or 6:00 a.m. As part of his usual morning routine, Mayfield made himself some coffee, emptied his trash, and burned his trash in a burn barrel. Mayfield did not see Judy that morning, but assumed she was sleeping in the room with Jessica. However, while he was burning his trash, Mayfield noticed Judy's socks, shoes, and scarf were strewn 1 Judy and Mayfield did not drink alcohol. 2 Prior to going to bed, Mayfield and Judy got into an argument over whether Mayfield would attend a church event with her on Sunday and what he would wear. When Mayfield did go to bed, one of the couple's grandchildren slept in the bed with him. around the yard. Believing that the grandkids had thrown Judy's clothes into the yard, Mayfield woke Jessica up and told her to get up and have the kids clean the yard.3 Jessica asked Mayfield if he knew where Judy was, and Mayfield responded that he did not but indicated that Jessica should get up and try to locate Judy. After waking up, Jessica went outside and began panicking when she could not find Judy. Jessica started calling family members to ask if they had seen Judy. Additionally, Jessica tried to call Bell because she knew he was the last person to see Judy. When that proved unsuccessful, Jessica and a family friend drove to Herman "Bo" Weldon's house, where Bell was supposedly staying, but no one answered the door. However, while on the porch, Jessica spotted the black shoes Bell had been wearing the night before and noticed that they were covered in mud. At some point, Jessica finally got a hold of Bell and asked if he knew what happened to Judy, to which Bell responded, "Ask Mango.[4]" Thereafter, Jessica returned home to continue looking. When Mayfield and Jessica went back into the yard, Mayfield noticed what appeared to be drag marks. He attempted to follow the drag marks but could not follow them once they led into the tall grass. Mayfield then looked around the neighbor's yard and found one of Judy's shirts and her keys. At that point, Mayfield informed Jessica that he was calling the police. Around 9:35 a.m., Officer John Kelly of the Chester County Sheriff's Office was dispatched to investigate a reported missing person. Officer Kelly arrived on the scene at 9:41 a.m. and was met by Mayfield and Jessica, who explained that Judy was last seen on the porch with Bell. Mayfield took Officer Kelly to the side of the house where he found Judy's clothes. Once in the yard, Officer Kelly noticed the drag marks, noting that they went through the dirt, around the back side of the house, and into the next-door neighbor's yard. Mayfield then offered to show Officer Kelly where he had found Judy's shirt and keys, but Officer Kelly decided to call for detectives and a dog. Officer Kelly taped off the crime scene and continued talking with Mayfield and Jessica.5 At some point, Mayfield pointed out that Bell was walking down the street towards the crime scene, and Officer Kelly made contact 3 On cross-examination, Jessica was presented with her earlier statement in which she indicated that she had woken herself up around 7:00 a.m. and subsequently roused Mayfield. 4 "Mango" is Mayfield's nickname. 5 The crime scene comprised Judy and Mayfield's house, their next-door neighbor's house, and an abandoned house on the other side of their neighbor. with him. Bell gave detectives his version of the night's events, indicating that he left the house after Judy went to bed around 12:30 or 1:00 a.m. Bell then agreed to be interviewed, and a detective placed him in a squad car and transported him to the Chester County Sheriff's Office.6 Prior to the interview, Bell consented to a buccal swab. Around 10:55 a.m., Officer Randy Clinton of the York County Sheriff's Office's K-9 Division received a call in reference to using a bloodhound to track a missing person. Officer Clinton arrived on scene and "scented" the dog off a pair of Judy's socks. The dog led Officer Clinton through Judy and Mayfield's yard, past their neighbor's house, around a fence and rosebush, past Judy's shirt and keys, and to the backyard of an abandoned house. The dog continued to lead Officer Clinton to the back side of a tin storage shed behind the abandoned house. Officer Clinton then found Judy's naked body lying face down behind the storage shed. Following the discovery of Judy's body, the South Carolina Law Enforcement Division (SLED) was contacted to assist on the case. Thereafter, three SLED agents arrived on scene at 1:31 p.m. While on the scene, the SLED agents collected or marked multiple pieces of evidence, including Judy's orange t-shirt and several footwear impressions. Additionally, the agents took a buccal swab from Mayfield. After spending most of the day on site, law enforcement cleared the scene and took down the crime scene tape around 7:20 p.m. After clearing the murder scene, law enforcement investigated several other locations, including Weldon's house. Once there, officers collected a pair of black Coogi shoes based on Jessica's tip that they were the same shoes Bell had worn the night before. However, by the time officers found the shoes, they were wet and appeared to have been washed. Meanwhile, at the crime scene, Mayfield and his sister7 were walking around the yard to see if they could find any more items. Mayfield testified that while walking near the location where Judy's body was found, the two found a plastic bag filled with Judy's underwear and a missing ashtray. Upon finding the bag, Mayfield contacted law enforcement, and SLED agents arrived back on scene around 8:27 p.m. The items were then turned over to law enforcement, who did not find any latent fingerprints on the plastic bag or its contents. 6 Law enforcement also had the grandchildren who were present at the house on the night of the murder sent to Safe Passage for a forensic interview. However, the grandchildren were not able to provide any information regarding Judy's death. 7 Mayfield testified that his sister used to work for a police department and he asked her if she thought it was ok to look around the scene after the tape was removed.  During Bell's interview at the Chester County Sheriff's Office, SLED Agent Lee Boan used several interview tactics in an attempt to gain information, including telling Bell that Judy had died of a heart attack and claiming that officers had matched Bell's DNA to evidence on scene. Despite Agent Boan's tactics, Bell maintained his innocence throughout the interview. However, during this interview and a follow-up interview conducted on September 15, 2015, Bell offered several inconsistent statements. First, Bell claimed that he spent the night of Judy's death at two different houses before finally conceding that he spent the night on Weldon's porch. Second, Bell claimed that on the night of the murder, he stepped off the porch and walked directly down the road. Bell then indicated that he had gone into the side yard to urinate before leaving. Finally, officers asked Bell what he was wearing the night of the murder, and Bell indicated that he had worn a black shirt, jeans, and Coogi shoes. Bell further claimed that he had slept in his clothes and had not showered or changed before walking to the crime scene and agreeing to be interviewed. Despite these claims, Bell was not wearing the same clothes during the interview and ultimately claimed that he did change clothes and shower. On September 14, 2015, Dr. Kim Collins conducted Judy's autopsy. Dr. Collins noted that Judy had an abrasion on her forehead and the area from Judy's collarbone up had a reddish-purple discoloration resulting from bruising. Dr. Collins indicated that such discoloration was consistent with manual strangulation, and swabs of Judy's neck area were taken to test for touch DNA. As she continued, Dr. Collins discovered blood in Judy's mouth resulting from Judy biting into the deep muscle of her tongue, scratches on the inside of her lips resulting from the pressure placed onto her teeth from her lips, and pinpoint hemorrhages on her inner lips resulting from ruptured blood vessels in her mouth. Additionally, Dr. Collins found hemorrhages in Judy's eyes as a result of ruptured blood vessels. Turning to the neck area, Dr. Collins discovered more hemorrhages in Judy's strap muscles, further indicating that the hemorrhages extended down through several layers of muscle.8 Dr. Collins also found a massive amount of hemorrhaging on the deep tissue in the back of Judy's neck. Dr. Collins explained, "that's a lot of squeezing through the skin[,] through the underlying fat, through all those strap muscles and then to cause hemorrhage in the back of all these structures around the esophagus, that's very deep in the back of the neck." Based on the bruising and hemorrhaging in Judy's neck, 8 Dr. Collins explained that such hemorrhages do not always appear when a victim has been strangled but their presence suggests a significant amount of pressure on the neck. Dr. Collins determined Judy's cause of death to be homicide by manual strangulation and opined that Judy was strangled with "a great deal of force." Dr. Collins further noted multiple areas of abrasion and bruises to different parts of the body. One such abrasion was a long, linear scratch from Judy's armpit area down to her thigh.9 Dr. Collins also found a large area of abrasion on the left knee and an area of abrasion on the left buttock. Additionally, Dr. Collins found a large area of bruising on the inner aspect of the left arm near the elbow and similar bruising on the right arm, further indicating that the bruises were noticeable despite Judy's darkly pigmented skin. Dr. Collins opined that the bruising around Judy's armpits was consistent with being dragged and, after considering the knee abrasions, law enforcement concluded that Judy's body was dragged face down. Dr. Collins also performed a sexual assault examination on Judy's body. Dr. Collins determined that Judy had an abrasion to her pubic area, a tear and scraping to the tissue on the outside of the vagina, and hemorrhaging in the tissue around the rectum. However, Dr. Collins did not find any injuries inside the vagina nor did she discover anything suggesting the presence of bodily fluids. Bell was arrested on October 2, 2015, and the Chester County Grand Jury indicted him for murder on February 16, 2016. Bell's trial was conducted on June 26 through June 30, 2017. At trial, Bell twice objected to the admission of testimony at issue on appeal. First, Bell raised the following objection to Mayfield's testimony: State: "Now, getting closer to the time of September 2015, had any other problems arose regarding the defendant, Jermaine Bell, between you and your wife, Judy?" Mayfield: "No. Now, at a point in time they - - Judy had told me Jermaine was stealing." State: "Someone was stealing?" Defense: "Objection, Your Honor." State: "Goes to the state of mind, Your Honor." Defense: "404-B." 9 Officers theorized that this abrasion occurred as Judy was being dragged past the rose bush.  Court: "I'm going to give her a little leeway on it, I will overrule the objection. Go ahead." Mayfield went on to testify that Judy believed Bell was stealing glasses, money, cigarettes, and clothes from her. However, Mayfield also testified that they had no proof that Bell was stealing and they never reported it to the police. Similarly, Bell raised the following objection to Jessica's testimony: State: "Had she ever explained to you about anything that he had done?" Jessica: "Yeah, stealing stuff from her." Defense: "Objection, Your Honor, same as before, 403."[10] State: "Goes to the state of mind, Your Honor." Court: "Overruled." Jessica went on to testify that Judy believed Bell was stealing her glasses and underwear but indicated that no one had confronted Bell or called the police about the issue. Notably, the circuit court did not provide a rationale in overruling either objection. Following the testimony of Mayfield and Jessica, the State presented several witnesses who saw Bell on the night of the murder or the following morning. First, Detective Brian Sanders testified without objection regarding a statement given by one of Jessica's friends. According to the friend, she had driven over to the house around 12:30 a.m. on the night of the murder to pick Jessica up so they could go out. She claimed that she blew the horn, nobody came to the door, the lights were off, the TV was on, and the front door was open. She further claimed that Bell came walking from a house across the street and indicated he did not know the location of Jessica or Judy when asked. Second, Weldon testified that he woke up around 7:00 a.m. on September 13, 2015, to find Bell sleeping on the couch on his porch. Weldon walked to the store 10 We note the circuit court likely interpreted "same as before" to mean that Bell was objecting under Rule 404(b), SCRE, which he invoked in objecting to Mayfield's testimony regarding Judy's statements. to buy cigarettes and shared one with Bell when he returned. Weldon claimed that he and Bell did not really talk but that Bell kept going back and forth to the road. Next, Mayfield's nephew, Darkarious Woods, testified that he was driving by Judy and Mayfield's house around 1:00 or 1:30 a.m. on the night of the murder. Woods claimed that he saw Bell coming from the side yard between the house neighboring Judy's and the abandoned house behind which Judy's body was found. According to Woods, Bell walked up to his car and asked if it was new. Woods explained that he found this question odd because Bell had previously washed his car multiple times. Woods further testified that Bell seemed "jittery" during their conversation. Finally, Ervin Chalk testified that he had known Bell for a year or two and that Bell lived in the abandoned house across the street from his. Chalk indicated that on the day of the murder, he and Bell had attended the same birthday party at Chalk's aunt's house. Chalk claimed that Bell was drinking at the party, was wearing a blue and white striped shirt, and had left around 10:00 or 11:00 p.m. Chalk testified that he went to a club after leaving the party but on his way home around 3:30 a.m., he saw Bell walking in the direction of Weldon's house and wearing the same blue and white striped shirt he had worn to the party. The State then presented several experts.11 First, the State offered Jessica Stowe as an expert in forensic serology. Stowe explained that while looking at oral, vaginal, and rectal swabs from Judy's body, she detected the presence of P30, a protein found in high concentrations in male seminal fluid. However, Stowe testified that she could not identify any spermatozoa from the swabs. Stowe forwarded the swabs testing positive for P30 to SLED's DNA section but the record does not reveal whether the P30 samples underwent DNA analysis or what results, if any, were obtained. Additionally, Stowe explained that she scraped and swabbed the underarms of Judy's orange t-shirt for touch DNA. Stowe also forwarded these swabs to SLED's DNA section. Following Stowe, the State offered Lilly Gallman as an expert in DNA analysis. Gallman testified that the swabs taken from Judy's neck contained a mixture of DNA from two individuals and indicated that Judy and Bell could not be excluded as contributors to the mixture. Gallman explained that the probability of 11 These experts included SLED Agent Melinda Worley, an expert in shoe wear impression. However, Agent Worley testified that she was not able to conclude that Bell's black Coogi shoes made the prints on scene nor was she able to conclude that Bell's shoes did not make the prints on scene. selecting an unrelated individual who could have contributed to the mixture was one in ten.12 Gallman testified that she also conducted a YSTR-DNA test on the swabs, further explaining that a YSTR-DNA test focuses only on the Y-chromosome. Gallman indicated that the YSTR test from the swabs "matched" Bell's Y-DNA and the probability of randomly selecting an unrelated male individual having a matching DNA profile was one in 8,600.13 Furthermore, Gallman asserted that the Y-DNA "matched" Bell's DNA profile to a reasonable degree of scientific certainty. After testing the swabs from Judy's neck, Gallman tested the swabs taken from the underarms of Judy's shirt. Gallman determined that these swabs contained a mixture of DNA and that Judy and Bell could not be excluded as contributors to the mixture. Gallman indicated that the probability of selecting an unrelated individual who could have contributed to the mixture was one in 960.14 Gallman then performed a YSTR test on the underarm swabs and determined the swabs "matched" Bell's Y-DNA and the probability of randomly selecting an unrelated male individual having a matching DNA profile was one in 8,600. Conversely, Gallman determined that, to a reasonable degree of scientific certainty, Mayfield could be excluded as a contributor to the neck and shirt swabs under both the standard DNA and Y-DNA tests. However, Gallman testified that she analyzed Judy's fingernail clippings and determined that Bell could be excluded as a minor DNA contributor but Mayfield could not. During its closing arguments, the State made the following references to the testimonies of Mayfield and Jessica: Now I'm going to talk about that bag and the ashtray that was found. Remember, they were saying that Mitchell Mayfield and Jessica, that some of their mother's items had been missing and she believed that [Bell] was stealing from them, Judy did, and so did Jessica. 12 Gallman explained that the statistical frequency of the DNA was high because she was only able to analyze two out of sixteen loci on the chromosome. 13 Gallman explained that all males sharing the same paternal lineage would share the same Y-DNA. Therefore, any such male would be a match under the YSTR-test. However, Bell stipulated that his brother was working on the night of the murder and was not present at the home of the victim. 14 Gallman testified that she was only able to analyze four out of sixteen loci on the chromosome.  ... [Jessica] said Judy believed the defendant was stealing some of her personal items; glasses, underwear[,] ashtray. I'm going to tell you something, after I got this case it was already too late, but I even went back over here to see this area for myself. I wish someone had gone back and looked even a little harder, you might have found a pair of glasses in there. I submit to you this defendant had his own little spots to hang out[,] to put stuff, to hide stuff. Her clothing could be anywhere in this area. He knows the woods, he knows the back trail, he knows the abandoned houses, he knows every single corner of that. ... Whoever killed Judy knew where to hide her body. Abandoned home, overgrown. . . . This was his hiding place, that's where the underwear was, that's where the ashtray was. ... [Judy] probably confronted [Bell] about her stolen items, maybe she was just sick of it, unfortunately we will never know because he killed her. Maybe it was a sexual rejection . . . . Ultimately, the jury found Bell guilty of murder, and the circuit court sentenced Bell to life imprisonment. Bell then moved for a new trial, but the motion was denied. This appeal followed. ISSUE ON APPEAL Did the circuit court err in allowing Mayfield and Jessica to testify regarding Judy's statements indicating she believed Bell was stealing from her? STANDARD OF REVIEW "In criminal cases, the appellate court sits to review errors of law only." State v. Wharton, 381 S.C. 209, 213, 672 S.E.2d 786, 788 (2009). As such, "[appellate courts are] bound by the [circuit] court's factual findings unless they are clearly erroneous." State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "A [circuit court] has considerable latitude in ruling on the admissibility of evidence . . . ." State v. Kelley, 319 S.C. 173, 177, 460 S.E.2d 368, 370 (1995). Accordingly, "[t]he admission of evidence is within the discretion of the [circuit] court and will not be reversed absent an abuse of discretion. An abuse of discretion occurs when the conclusions of the [circuit] court either lack evidentiary support or are controlled by an error of law." State v. Goodwin, 384 S.C. 588, 601, 683 S.E.2d 500, 507 (Ct. App. 2009) (quoting State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006)). "The improper admission of hearsay is reversible error only when the admission causes prejudice." State v. Hughes, 419 S.C. 149, 155, 796 S.E.2d 174, 177 (Ct. App. 2017) (quoting State v. Weston, 367 S.C. 279, 288, 625 S.E.2d 641, 646 (2006)). Additionally, "[a circuit court]'s decision regarding the comparative probative value and prejudicial effect of relevant evidence should be reversed only in exceptional circumstances." State v. Sweat, 362 S.C. 117, 129, 606 S.E.2d 508, 514 (Ct. App. 2004). Finally, "[i]f there is any evidence to support the admission of[] bad act evidence, the [circuit court]'s ruling will not be disturbed on appeal." State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001). LAW/ANALYSIS Bell argues the circuit court erred in allowing Mayfield and Jessica to testify regarding Judy's statements indicating she believed Bell was stealing from her because 1) the statements constituted inadmissible hearsay and did not fall within the "Then Existing Mental, Emotional, or Physical Condition" exception to the rule against hearsay; 2) the risk of unfair prejudice stemming from the statements outweighed their probative value; and 3) the statements constituted evidence of prior bad acts precluded by Rule 404(b), SCRE. Prior bad acts and Rule 404(b)15 15 Bell's remaining arguments are unpreserved for appellate review because they were not raised to and ruled upon by the circuit court or were not raised with sufficient specificity. See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("It is well-settled that an issue . . . must have been raised to and ruled upon by the [circuit] court to be preserved for appellate review."); State v. Patterson, 324 S.C. 5, 19, 482 S.E.2d 760, 767 (1997) (indicating an "[a]ppellant is  Bell argues the circuit court erred in allowing Mayfield and Jessica to testify regarding Judy's statements because the statements constituted evidence of prior bad acts and were thus inadmissible under Rule 404(b). The State argues the statements did not constitute evidence of prior bad acts but, rather, constituted evidence of the suspicion of prior bad acts. We agree with Bell. Pursuant to Rule 404(b), SCRE, Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent. In other words, "evidence of prior bad acts is inadmissible to show criminal propensity or to demonstrate the accused is a bad person." State v. King, 334 S.C. 504, 512, 514 S.E.2d 578, 582 (1999). Our courts have explained that, "[p]roof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution's theory that he is guilty of the crime charged." State v. Lyle, 125 S.C. 406, 416, 118 S.E. 803, 807 (1923). Thus, the effect of such evidence "is to predispose the mind of the juror to believe the [defendant] guilty, and thus effectually to strip him of the presumption of innocence." Id. Consequently, "[t]o be admissible, the bad act must logically relate to the crime with which the defendant has been charged." State v. Fletcher, 379 S.C. 17, 23, 664 S.E.2d 480, 483 (2008). Moreover, "[i]f the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing." Id. (emphasis added). At the outset, the State argues the statements did not constitute evidence of prior bad acts but, rather, constituted evidence of a belief or suspicion of prior bad acts. We disagree for the following reasons. First, Judy's belief that Bell was stealing was, at minimum, evidence of two things: 1) Judy believed her property was stolen or lost; and 2) something led Judy to believe Bell was responsible. Thus, we find the State elicited Judy's belief that Bell was stealing to demonstrate that Bell limited to the grounds raised at trial"); see also State v. Johnson, 363 S.C. 53, 58, 609 S.E.2d 520, 523 (2005) ("The objection should be addressed to the [circuit] court in a sufficiently specific manner that brings attention to the exact error."); State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("[T]o preserve [a legal issue], []it must be clear that the argument has been presented on that ground."). had previously stolen from her. Cf. Smalls v. State, 422 S.C. 174, 185–86, 810 S.E.2d 836, 842 (2018) (finding that after the officer indicated on cross-examination that a prior burglary involving a stolen gun had not been solved, the State's question asking whether the defendant had burglarized the house "did not serve any legitimate purpose" but "was an improper effort to introduce evidence that Smalls committed another crime"). Second, in its closing argument, the State portrayed Judy's belief as conclusive evidence that Bell had been stealing from her and asserted that the prior thefts were evidence of Bell's possible motives. Notably, evidence of motive is one of the five exceptions to the rule precluding the admission of prior bad acts evidence. See Rule 404(b), SCRE ("Evidence of other crimes, wrongs, or acts . . . may[] be admissible to show motive . . . ."). Finally, if this court were to accept the State's distinction between evidence of prior bad acts and evidence of the belief of prior bad acts, such a distinction would swallow Rule 404(b)'s preclusion of prior bad acts evidence. Pursuant to the State's position, Rule 404(b) would not preclude evidence of a belief of prior bad acts, thus, the State would not need to invoke an exception to the rule to have such evidence admitted. Moreover, under the State's position, evidence that a defendant committed an unconvicted prior bad act would require proof of the act by clear and convincing evidence, but evidence that someone believes a defendant committed an unconvicted prior bad act would not be subject to the same evidentiary burden. See Fletcher, 379 S.C. at 23, 664 S.E.2d at 483 ("If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing." (emphasis added)). If this court were to sanction such a distinction, the State could bypass the rule, as well as 404(b) scrutiny when invoking an exception to the rule, by simply having witnesses testify that they believe a defendant committed a prior bad act rather than putting forth direct evidence of the prior bad act in question. Thus, we conclude that Mayfield's and Jessica's statements constitute evidence of prior bad acts, and we will scrutinize the circuit court's admission of the statements accordingly. In State v. Fletcher, our supreme court found that the circuit court erred in allowing the State to present evidence of prior bad acts in a homicide by child abuse case. 379 S.C. at 25, 664 S.E.2d at 483–84. At trial, the State called one of the defendant's friends and coworkers to testify regarding two events involving the child victim. Id. at 21, 664 S.E.2d at 481. Both co-defendants objected to the testimony, arguing there was not clear and convincing evidence establishing who committed the acts in question. Id. at 21, 664 S.E.2d at 481–82. The circuit court overruled the objection and allowed the witness to testify. Id. at 21, 664 S.E.2d at 482. The witness testified that on one occasion, he had gone to the co-defendants' house and heard a baby crying. Id. After going upstairs, he found the child sitting in a walker in the attic and profusely sweating. Id. On another occasion, the witness indicated he had gone to the co-defendants' house and found the child handcuffed by his feet to the co-defendants' bed. Id. at 22, 664 S.E.2d at 482. On appeal, our supreme court found that, "there is simply not clear and convincing evidence in the record that Fletcher committed the prior bad acts testified to by [the witness]." Id. at 24, 664 S.E.2d at 483. The court explained that, "[a]lthough [the witness] testified he saw [the child] handcuffed to the bed and in the walker in the attic, there was no evidence whatsoever introduced at trial that Fletcher was either the person who placed [the child] in the attic[] or that he handcuffed him to the bed." Id. Ultimately, the court held that the circuit court erred in admitting the witness's testimony, concluding "there is simply no evidence, let alone clear and convincing evidence[,] that Fletcher was the perpetrator of the prior bad acts against [the child]."16 Id. at 25, 664 S.E.2d at 483–84. Here, we find the circuit court abused its discretion in allowing Mayfield and Jessica to testify regarding Judy's statements because there is no evidence, let alone clear and convincing evidence, demonstrating that Bell had previously stolen Judy's property. See Goodwin, 384 S.C. at 601, 683 S.E.2d at 507 ("An abuse of discretion occurs when the conclusions of the [circuit] court either lack evidentiary support or are controlled by an error of law." (quoting Pagan, 369 S.C. at 208, 631 S.E.2d at 265)). Mayfield and Jessica both testified that Judy believed Bell was stealing from her but indicated that the family had no proof of this, had not called the police, and had not confronted Bell about the alleged thefts. Assuming some of Judy's property 16 Consistent with the holding in Fletcher, our courts have routinely held that a circuit court errs by admitting evidence of prior bad acts when the defendant cannot be established as the perpetrator of the bad acts by clear and convincing evidence. See State v. Cutro, 332 S.C. 100, 106, 504 S.E.2d 324, 327 (1998) ("[H]ere, the evidence is insufficient to establish that appellant was the actor in Parker's death or Asher's injuries[,] and we hold the trial judge erred in admitting this evidence."); State v. Pierce, 326 S.C. 176, 178, 485 S.E.2d 913, 914 (1997) ("The State failed to offer any proof that appellant inflicted these injuries. Thus, this testimony is inadmissible under Lyle[,] and the trial court erred in admitting it."); State v. Conyers, 268 S.C. 276, 281, 233 S.E.2d 95, 97 (1977) ("There was very little evidence, however, to establish that appellant poisoned her first husband other than the fact that she was his wife and he had some life insurance. This evidence alone was insufficient to establish the identity of appellant as the actor in poisoning her first husband. The admission of this testimony was clearly prejudicial and requires that a new trial be granted."). had been stolen, we find this case is similar to Fletcher because neither Mayfield's nor Jessica's testimony could definitively establish that Bell was the perpetrator of the thefts. See Fletcher, 379 S.C. at 25, 664 S.E.2d at 483–84 ("[T]here is simply no evidence, let alone clear and convincing evidence[,] that Fletcher was the perpetrator of the prior bad acts . . . ."). Moreover, unlike the acts in Fletcher, there is no evidence, beyond her statements of belief, that Judy's property had in fact been stolen. There is no evidence in the record indicating that the clothes in the bag Mayfield testified he found are the same clothes Judy alleged were stolen. Additionally, neither Mayfield nor Jessica testified that Judy believed Bell had stolen the ashtray found in the bag. Accordingly, we do not find clear and convincing evidence demonstrating that Bell was the perpetrator of the alleged thefts. See id. at 23, 664 S.E.2d at 483 ("If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing." (emphasis added)). Thus, the circuit court erred in admitting the evidence of prior bad acts. Harmless error The State argues that any error in admitting Mayfield's and Jessica's testimonies was harmless beyond a reasonable doubt. We disagree. An "[e]rror is harmless when it 'could not reasonably have affected the result of the trial.'" State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (quoting State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890 (1971)). "No definite rule of law governs this finding; rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case." State v. Thompson, 352 S.C. 552, 562, 575 S.E.2d 77, 83 (Ct. App. 2003) (quoting Mitchell, 286 S.C. at 573, 336 S.E.2d at 151). Accordingly, "our jurisprudence requires us not to question whether the State proved its case beyond a reasonable doubt, but whether beyond a reasonable doubt the trial error did not contribute to the guilty verdict." State v. Tapp, 398 S.C. 376, 389–90, 728 S.E.2d 468, 475 (2012) (emphasis added). In other words, an error is harmless "when guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached." State v. Kirton, 381 S.C. 7, 37, 671 S.E.2d 107, 122 (Ct. App. 2008) (emphasis added). In State v. King, our supreme court found the erroneous admission of prior bad acts evidence constituted reversible error. 334 S.C. at 514–15, 514 S.E.2d at 583–84. King was accused of the murder of his father-in-law. Id. at 507–09, 514 S.E.2d at 579–81. At trial, King's ex-wife testified regarding prior incidents in which King had stolen items from her. Id. at 511, 514 S.E.2d at 582. On appeal, the supreme court found the circuit court erred in admitting the prior bad acts evidence because the evidence was "not admissible under any theory." Id. at 513, 514 S.E.2d at 583. In concluding that the error was not harmless, the supreme court determined that all of the evidence in the record was circumstantial. Id. at 514, 514 S.E.2d at 583. The court further found that, "[w]hile this circumstantial evidence pointed to appellant's guilt, especially the blood evidence, the evidence was not overwhelming." Id. (emphasis added). The court explained that "[t]he admission of this testimony allowed the State to insinuate to the jury that appellant had a drug problem[,]" and "[t]he [State]'s questions eliminated many legitimate reasons why appellant would need money." Id. "This improper evidence suggested to the jury that appellant was guilty of committing the charged crimes because of his criminal propensity to commit crimes and his bad character." Id. at 514, 514 S.E.2d at 583–84. Additionally, the court noted that "[t]he State continuously stressed this improper testimony in its closing argument." Id. at 514–15, 514 S.E.2d at 584 (emphasis added). "Therefore, it [wa]s impossible under these circumstances to conclude the improper evidence did not impact the jury's verdict." Id. at 515, 514 S.E.2d at 584 (emphases added). Finally, the court determined that the "improper testimony permeated the trial and the jury likely used this evidence to infer that since appellant had previously stolen from his ex-wife, he probably committed these crimes against his father-in-law also." Id. We find the case at bar is strikingly similar to King. Here, like in King, all of the evidence in the record was circumstantial. Additionally, while we are cognizant of the fact that this circumstantial evidence pointed to Bell's guilt, such evidence was not overwhelming.17 Given this evidentiary context, we find Mayfield's and Jessica's 17 In asserting that the error was harmless, the State relies heavily on Gallman's testimony indicating the touch DNA taken from Judy's neck and the underarms of her shirt "matched" Bell's Y-DNA. However, we note that a "match" is only part of the equation in DNA analysis. "After determining that two DNA samples match, forensic analysts estimate the statistical frequency of such matches in a reference population. The purpose of the statistical estimates is to provide meaning to the match by showing the likelihood that an unrelated person in the reference population would match by chance." William C. Thompson, Evaluating the Admissibility of New Genetic Identification Tests: Lessons from the "DNA War", 84 J. Crim. L. & Criminology 22, 61 (1993); see also State v. Phillips, Op. No. 27978 (S.C. Sup. Ct. filed June 3, 2020) (Shearouse Adv. Sh. No. 22 at 29–30) ("Random match probability is the likelihood that another randomly chosen person—unrelated to the suspect—will have a DNA fragment identical to the fragment the analyst found in statements regarding Judy's belief were highly prejudicial. First, like the testimony in King, the statements tended to establish Bell's criminal propensity by painting him as a thief. See id. at 514, 514 S.E.2d at 583–84 ("This improper evidence suggested to the jury that appellant was guilty of committing the charged crimes because of his criminal propensity to commit crimes and his bad character."); Lyle, 125 S.C. at 416, 118 S.E. at 807 ("[The] effect [of bad acts evidence] is to predispose the mind of the juror to believe the [defendant] guilty, and thus effectually to strip him of the presumption of innocence."). Second, the statements allowed the State to insinuate to the jury that Bell was a pervert. See King, 334 S.C. at 514, 514 S.E.2d at 583 ("The admission of this testimony allowed the State to insinuate to the jury that appellant had a drug problem."). Because Judy's body was found unclothed and with injuries to the vaginal and rectal areas of her body, the insinuation that Bell was a the touch sample."). Crucially, "[o]ne very important thing to understand about touch DNA is that in many cases . . . the DNA analyst is not able to obtain a full DNA profile from the 'touch' sample." Phillips, (Shearouse Adv. Sh. No. 22 at 28). Therefore, "[t]he probability of a random match in any given case depends on the size of the fragment the analyst can obtain from the touch sample." Id. at 30. "Thus, the more complete the fragment, the less likely another person could randomly match it. The smaller the fragment, on the other hand, the more likely some other person will also have the identical fragment, and would then be a 'random match.'" Id. (emphases added). Here, the State's DNA expert testified that when examining the DNA sample from Judy's neck, the expert was only able to analyze two out of the chromosome's sixteen loci. Similarly, when analyzing the DNA sample from Judy's underarms, the State's expert was only able to analyze four of the chromosome's sixteen loci. The expert further testified that the probability of selecting an unrelated individual with a matching DNA profile ranged from one in ten to one in 960. Additionally, the expert testified that the probability of randomly selecting an unrelated male individual with a matching Y-DNA profile was one in 8,600. We do not find that the statistical frequencies associated with Bell's DNA and Y-DNA tests were so low as to suggest that Bell's guilt was the only rational conclusion to be drawn from the evidence. See, e.g., Thompson, 352 S.C. at 556– 57, 575 S.E.2d at 80 ("The expert further opined that only one in thirty-two quadrillion persons have the same genetic marker as Thompson." (emphasis added)). Rather, a jury could have reasonably determined that the statistical frequencies did not reliably identify Bell as the source of the DNA or Y-DNA on Judy's neck and shirt. See State v. Dinkins, 319 S.C. 415, 418, 462 S.E.2d 59, 60 (1995) ("The jury should be allowed to make its own determination as to whether it believes the [DNA] statistics are reliable. The jury is free to believe or disbelieve the experts and the statistics."). pervert tended to suggest that Bell was capable of and likely engaged in a sexually charged attack. In turn, this allowed the State to compensate for the absence of any evidence connecting Bell to the sexual injuries. Third, the statements allowed the State to establish potential motives for the killing despite Bell's friendly relationship with Judy and her family. In fact, in its closing argument, the State relied on Judy's belief as evidence of Bell's potential motive, asserting that Bell may have killed Judy after she confronted him about the alleged stolen items or after rejecting Bell's sexual advances. But perhaps the most prejudicial effect was the establishment of a connection between Bell and the bag of Judy's underwear Mayfield testified he found on the scene. During the trial, law enforcement testified that they did not find any latent fingerprints on the bag or its contents, nor did they find anything that would directly tie Bell to the bag. However, despite the lack of proof that Bell was stealing, Mayfield's and Jessica's testimonies tied Bell directly to the bag of underwear. Because the bag was purportedly found near the location of Judy's body, this connection tended to place Bell at the scene and suggested that he was familiar with the area in which the body was found. Moreover, in its closing argument, the State again used the statements against Bell, consistently asserting that the items in the bag were the ones Judy believed Bell had stolen, that Bell in fact stole these items, and that Bell had "hiding spots" behind the abandoned house. Ultimately, we find the statements that Judy believed Bell was stealing from her, which could not be proven or disproven, had the same prejudicial effect as evidence that would have conclusively established that Bell was stealing. In other words, even if Judy was mistaken in her belief that Bell was stealing, her statements would have still prejudiced him as if he had been. Furthermore, these statements were extremely prejudicial because they provided possible motives for the murder, connected Bell to the bag of underwear and Judy's injuries, and demonstrated Bell's criminal propensity. Moreover, because the State continuously stressed the improper statements in its closing argument, "it is impossible under these circumstances to conclude the improper evidence did not impact the jury's verdict." King, 334 S.C. at 515, 514 S.E.2d at 584; see also Phillips, (Shearouse Adv. Sh. No. 22 at 39) ("If there were any possibility we might find the error of admitting the [testimonies] harmless, the assistant solicitor extinguished that possibility with her incorrect statements in her closing argument."). Therefore, we find the error in admitting Mayfield's and Jessica's testimonies concerning the alleged prior bad acts was highly prejudicial and requires that Bell's conviction be reversed.  CONCLUSION Based on the foregoing, Bell's conviction is REVERSED. LOCKEMY, CJ., and HEWITT, J., concur. 

2 Mich. App. 506 (1966) 140 N.W.2d 782 QUINLAN v. GUDES. Docket No. 776. Michigan Court of Appeals. Decided March 22, 1966. Leave to appeal denied May 25, 1966. *507 E.R. Whinham, Jr., for plaintiffs. Moll, Desenberg, Purdy, Glover & Bayer (Harold B. Desenberg, of counsel), for defendant. Leave to appeal denied by Supreme Court May 25, 1966. See 377 Mich 712. LESINSKI, C.J. The plaintiffs, Villana P. Quinlan and her husband James F. Quinlan, commenced this action in the circuit court for the county of Wayne on December 15, 1964, to recover for injuries suffered "because of excessive exposures to X rays" given by the defendant medical doctor to Villana P. Quinlan for the treatment of facial skin eruptions. The defendant filed a motion for summary judgment[1] and for accelerated judgment[2] invoking the statute of limitations, CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805), as an affirmative defense. On the basis of the affirmative defense, the trial court granted defendant's motion and dismissed the case. From this ruling, appeal was taken. In August of 1952 the plaintiff, Mrs. Villana Quinlan, sought out the defendant for treatments for her facial skin eruptions. X-ray treatments were given to Mrs. Quinlan from August of 1952 through June of 1954. In January of 1963 when she was operated on for cancer of the soft palate, the plaintiffs were informed by the surgeon who operated on Mrs. *508 Quinlan "that the cause of the cancer was the receiving of X-ray treatments." Suit for malpractice was begun 23 months after the discovery of the cancer. The question facing this Court revolves around the effective date of the section limiting actions for malpractice found in the revised judicature act, hereinafter called RJA.[3] Plaintiffs contend that this cause of action, having arisen prior to January 1, 1963, the date the revised judicature act (RJA) went into effect (see CLS 1961, § 600.9911 [Stat Ann 1962 Rev § 27A.9911]), the action is controlled by the statute of limitations in effect at the time the cause of action arose, namely CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605). It is the defendant's contention, on the other hand, that since this action was begun in December of 1964, it should be controlled by the new statute of limitations created by the RJA, namely CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805) and by CLS 1961, § 600.5838 (Stat Ann 1962 Rev § 27A.5838). This question must be considered the crux of the case as by its determination the remaining issue of when does the statute of limitations begin to run is readily resolved. The effectuating clause of the RJA, CLS 1961, § 600.9911 (Stat Ann 1962 Rev § 27A.9911) states that "This act shall become effective on January 1, 1963." As of that date the various sections of the RJA were to be considered the law of this State, but as to a right accruing, accrued, or acquired prior to this date, the statute CLS 1961, § 600.9905 (Stat Ann 1962 Rev § 27A.9905[1]) states: "Except as specifically stated or reasonably inferred from the provisions of this act, this act shall *509 not impair or affect any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time this act takes effect, but the same may be enjoyed, asserted, enforced, prosecuted, or inflicted as if the act had not been passed." (Emphasis supplied.) The treatments in this case were done and completed nine years prior to the effective date of the RJA. Though the plaintiffs did not discover their rights to a cause of action in this case until the RJA was in effect, it is the Court's view they had acquired these rights prior to January 1, 1963. This Court deems this case to be of the exact type contemplated by the legislature when it enacted CLS 1961, § 600.9905 (Stat Ann 1962 Rev § 27A.9905). It is, therefore, this Court's construction that this case is controlled by CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605) as to when the statute of limitations began to run against the plaintiffs. There are two basic theories of the running of statutes of limitations in malpractice cases. The first theory is the "last treatment"[4] rule. This theory contemplates that the statute of limitations in malpractice actions begins to run as soon as the plaintiff discontinues receiving treatments or service from the accused professional. The other theory commonly known as the "discovery rule" was laid down in Johnson v. Caldwell (1963), 371 Mich 368 as the rule in Michigan in malpractice cases prior to the institution of the RJA. As Justice O'HARA stated in the Johnson Case at page 379: *510 "Simply and clearly stated the discovery rule is: The limitation statute or statutes in malpractice cases does not start to run until the date of discovery, or the date when, by the exercise of reasonable care, plaintiff should have discovered the wrongful act." The Court continued at page 379: "We are persuaded we should adopt the rationale of the discovery rule." Thus, using the rule enunciated in the Johnson Case, the plaintiffs timely instituted this action within the limitation under CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605) which is two years from the time of discovery of the malpractice. This cause is remanded to the trial court for entry of an order setting aside the accelerated judgment and for this cause to be set for trial. Costs to the appellant. QUINN and WATTS, JJ., concurred. NOTES [1] GCR 1963, 117. — REPORTER. [2] GCR 1963, 116.1(5). — REPORTER. [3] CLS 1961, § 600.101 et seq. (Stat Ann 1962 Rev § 27A.101 et seq.) [4] The RJA, CLS 1961, § 600.5838 (Stat Ann 1962 Rev § 27A.5838) has instituted the above-named rule for determining the running of the statute of limitations in malpractice cases. It has been the determination of this Court that this statute only affects those causes of actions accruing after January 1, 1963.

681 F.2d 61 10 Fed. R. Evid. Serv. 1038 UNITED STATES of America, Appellee,v.Nicholas Anthony MOCCIA, Defendant, Appellant. No. 81-1532. United States Court of Appeals,First Circuit. Argued April 9, 1982.Decided June 16, 1982. John A. Macoul, Lawrence, Mass., by appointment of the Court, for appellant. Helen J. Forsyth, Asst. U. S. Atty., Concord, N. H., with whom W. Stephen Thayer, III, U. S. Atty., Concord, N. H., was on brief, for appellee. Before CAMPBELL, BOWNES, and BREYER, Circuit Judges. BREYER, Circuit Judge. Defendant/appellant Nicholas Moccia was convicted of possessing two drugs-marijuana and diethylpropion-with intent to distribute. 21 U.S.C. §§ 812 (Schedule I(c)(10)), 841; 21 C.F.R. § 1308.14(e)(1) (1981). He was sentenced under the "Dangerous Special Drug Offender" statute, 21 U.S.C. § 849, to two concurrent fifteen-year terms. He attacks his conviction and sentence on several grounds. In our view, both must stand. 1. Defendant's first claim is that the trial court erred in allowing the Government to tell the jury that he had previously been convicted in state court for possession of marijuana. The relevant federal rule of evidence is 404(b), which states,Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This rule codifies the common law doctrine forbidding the prosecution from asking the jury to infer from the fact that the defendant has committed a bad act in the past, that he has a bad character and therefore is more likely to have committed the bad act now charged. Although this "propensity evidence" is relevant, the risk that a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment-creates a prejudicial effect that outweighs ordinary relevance. 2 Weinstein's Evidence P 404(04) at 404-26 (1980); Note, Procedural Protections of the Criminal Defendant-A Reevaluation of the Privilege Against Self-Incrimination and the Rule Excluding Evidence of Propensity to Commit Crimes, 78 Harv.L.Rev. 426, 436 (1964). Where the evidence has some "special" probative value, however,-where, for example, it is relevant to something other than mere "character" or "propensity,"-it "may " be admitted. The trial judge then must weigh the special relevance against the prejudicial risk, taking into account the likely hostile jury reaction that underlies the common law rule. United States v. Halper, 590 F.2d 422, 432 (2d Cir. 1978); 2 Weinstein's Evidence §§ 404(08), 404(18). See also United States v. Byrd, 352 F.2d 570, 574-75 (2d Cir. 1965) (Friendly, J.). 1 In this case there was a "special" factor making the past conviction more than an effort to produce a "bad character/propensity" chain of inference. Evidence was introduced showing that federal agents had found marijuana and diethylpropion buried under some dog food in the freezer room of the farmhouse where defendant lived with his wife (the owner). Bags of marijuana were also found in the barn under a chicken coop. While defendant offered to stipulate that he knew marijuana and diethylpropion were "controlled" substances, and that whatever he did, he did "knowingly" and "intentionally," cf. United States v. Mohel, 604 F.2d 748 (2d Cir. 1979), he would not stipulate that he knew the drugs were in the freezer room or under the chicken coop. By introducing the past conviction, the Government thus, in part, sought to have the jury infer that one who lives on a farm with marijuana in the freezer room and under the chicken coop and has a prior possession conviction is more likely to know about the presence of marijuana than one who lives on such a farm and does not have a past possession conviction. 2 Such an inference would not have been difficult to draw. The jury might have thought a past possessor is more likely to associate with those who use and keep and talk freely about nearby marijuana; it might have thought a past possessor is more likely to spot marijuana under a chicken coop; it might have thought a past possessor is less likely to throw away marijuana if he comes across it. None of these inferences-all supporting a conclusion of "knowledge"-depends entirely upon the "bad character/propensity" chain of reasoning. See United States v. Sinn, 622 F.2d 415, 416 (9th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980). Cf. United States v. Merryman, 630 F.2d 780, 786 (10th Cir. 1980). But see United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979). Thus, they escape the absolute bar of the Rule's first sentence. 3 The question of balancing relevance and risk is more difficult, but we believe that the trial court acted within its discretion. United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975); 2 Weinstein's Evidence P 404(18) at 404-110 & n.16. On the one hand, the court refused to allow the Government to do more than simply read the prior charge. It instructed the jury to consider the conviction only for its tendency to show knowledge or intent and to ignore whatever light it shed on character or propensity. And the prior conviction (for possession of "more than one pound" of marijuana) was not for a shocking or heinous crime likely to inflame the jury. 4 On the other hand, there was so much other evidence of guilt in the case that it is difficult to believe the prior conviction was needed. Drug-related equipment was found in public rooms on the farm. Large amounts of cash were found in the defendant's room. The defendant and his wife sold the farm and fled from New Hampshire one month before they were initially to be tried (four years ago). And, the defendant had made two highly incriminating admissions: the day of the search he told one of the agents that they should have waited a few days to raid the farm as the Mexican crop had not yet been harvested. The next day he told two deputy marshals (in their words) that the Government 5 really blew it. I was going to get two tons of marijuana. In fact, I was talking to the guy on the phone when you raided the place.... I really needed the two tons to get out of the hole, ... but after this, ... I'll never hear from the guy again. 6 In the face of this evidence, the defense presented no witnesses. 7 While all this evidence lessened the need for introducing the prior conviction, it also lessened the likelihood of any prejudicial effect-to the point where, even were we to find the evidence inadmissible (which we do not), the error would have been harmless. See United States v. Bosch, 584 F.2d 1113, 1117-18 (1st Cir. 1978); 2 Weinstein's Evidence P 404(18) at 404-111 & n.19. 8 2. Defendant complains of the trial judge's instruction that the jury not consider any lesser included offenses "until or unless you have arrived at a reasonable doubt on the offenses charged." Defendant does not complain about the well-established rule that a jury is to consider lesser included offenses only after a determination of "not guilty" is reached on the primary charge. See 2 Devitt & Blackmar, Federal Jury Practice and Instructions § 58.15. Rather, he states that this charge somehow implied that the defendant had the burden of coming forward with evidence that would lead the jury to find a reasonable doubt. He claims the charge implied to the jury that "reasonable doubt" had to be created instead of existing from the outset. 9 We disagree. At the end of the trial, the judge charged the jury as follows: 10 Consider ... whether the government had sustained its burden of proving beyond a reasonable doubt each offense of possession with intent to distribute with which (Moccia) is charged. 11 If you find that such burden has been sustained, that is the end of the case as to him. You will have established his guilt as to such offense or offenses. If, however, you find that a reasonable doubt exists as to either or both of such offenses, you must then turn to the issue of whether he is guilty of the lesser included offenses of possession of controlled substances, and here again must consider whether the government has sustained its burden of proof beyond a reasonable doubt as to each of the elements of those offenses. If it has, then he is guilty of the lesser included offense. If it has not, then you must find him not guilty. 12 The judge then gave the challenged instruction: 13 I caution you do not turn to the lesser included offense until or unless you have arrived at a reasonable doubt on the offenses charged, that is, possession with intent to distribute. 14 Taken as a whole, Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); United States v. Thomann, 609 F.2d 560, 565-66 (1st Cir. 1979), this charge certainly seems adequate as to the burden of proof on "reasonable doubt." Moreover, the judge properly charged the jury several different times as to "reasonable doubt" and "presumptions of innocence." We find no violation of "due process" or "fair treatment," In re Winship, 397 U.S. 358, 359, 90 S.Ct. 1068, 1070, 25 L.Ed.2d 368 (1970), or any other basis for complaint. 15 3. Finally, defendant makes three arguments attacking the "enhanced" fifteen-year concurrent sentences he received as a "dangerous special" drug offender under 21 U.S.C. § 849. First, he claims that at his "enhancement" hearing, the trial judge should not have considered hearsay evidence, evidence derived from "illegal" wiretaps, and evidence not specified in the notice that the statute requires the Government to give prior to trial, 21 U.S.C. § 849(a). The short and conclusive answer to these objections is that the Comprehensive Drug Abuse Prevention and Control Act (of which § 849 is a part) specifically states that, 16 no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purposes of imposing an appropriate sentence.... 17 21 U.S.C. § 850. This provision codifies the principle that when setting a sentence, a judge can consider a virtually unrestricted range of information, see United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2615, 57 L.Ed.2d 582 (1978), including hearsay, United States v. Inendino, 604 F.2d 458, 463 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979); United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980), other information that might be inadmissible at trial, United States v. Williamson, 567 F.2d 610, 615 (4th Cir. 1977), and evidence not specified in a § 849(a) pretrial notice. See United States v. Ilacqua, 562 F.2d 399, 403 (6th Cir. 1977), cert. denied, 435 U.S. 906, 917, 947, 98 S.Ct. 1453, 1473, 1532, 55 L.Ed.2d 497, 508, 545 (1978). We see no reason to depart from this rule in the case of wiretap evidence where, as here, attacks on that evidence have been raised and rejected in a prior criminal prosecution in state court. 18 Second, defendant claims the Government failed to show that he is both "special" and "dangerous" by a "preponderance of the information." See United States v. Sutton, 415 F.Supp. 1323, 1325-27 (D.D.C.1976); 21 U.S.C. § 849(b). Again, we disagree. In showing that defendant was "special," the Government produced evidence that he was a "professional," United States v. Sutton, 415 F.Supp. at 1325, which is to say that his offenses were committed 19 (1) as a part of a pattern of dealing in controlled substances which was criminal under applicable laws of any jurisdiction, 20 (2) which constituted a substantial source of his income, and 21 (3) in which he manifested special skill or expertise; ... 22 21 U.S.C. § 849(e)(2). The "pattern" was evidenced by the fact that only a year previously defendant had been found in the same place, with the same "farmhands," and with 740 pounds of marijuana. State v. Moccia, 119 N.H. 169, 400 A.2d 44 (1979); 21 U.S.C. § 849(e). That defendant's drug sales provided a "substantial source of his income" was shown by the tax court's decision in Moccia v. Commissioner, No. 708-78 (June 4, 1979) and by his 1976 tax return. The decision indicates that defendant's drug profits amounted to several hundred thousand dollars in 1976-far more than the 50 percent of declared income ($30,000) that the statute requires. 21 U.S.C. § 849(e). Defendant argues that the tax court's decision rests upon unlawful wiretap evidence. No policy of the law, however, requires us to go behind that decision to examine its evidentiary basis where the decision itself was used only for sentencing purposes, and where, in any event, defendant's attacks on the wiretap evidence have been heard, and rejected, by the New Hampshire courts. In any event, defendant's claim that the income projections are unreliable because the wiretap lasted only eleven days is frivolous. The projections imply that defendant's drug profits exceeded the requisite $15,000 during just the period of the wiretap itself! Finally, defendant's "special skill" was shown by his prior conviction, his flight before trial, and this same wiretap evidence (which revealed that defendant was in charge of a good-sized operation, and that he described himself as a "dealer's dealer"). In sum, the trial judge's finding that defendant was "special" was adequately supported by the evidence, which the judge identified in the record as the statute requires. 21 U.S.C. § 849(b). 23 The statute's special definition of "dangerous" requires that the judge find that 24 a period of confinement longer than that provided for (the) felonious violation (in question) is required for the protection of the public from further criminal conduct by the defendant. 25 21 U.S.C. § 849(f). In our view, the judge's finding that defendant was "special" was also adequate to support a finding of "dangerous." 26 Third, defendant claims that his sentence is disproportionately severe. 21 U.S.C. § 849(b). We note that there are certain mitigating factors in defendant's background. Nonetheless, the fifteen-year sentence is considerably less than the twenty-five years the Government sought. It is seven years more than the sentence he might have been given were he not a "special" and "dangerous" offender. See 21 U.S.C. § 841(b)(1)(B) and (b)(2). Yet, it is still only three years more than the sentence that might have been imposed had defendant's earlier drug conviction been under federal rather than state law. See 21 U.S.C. § 841(b)(1)(B). The evidence, suggesting that he was a serious professional dealer, who repeated his crimes, and who fled the jurisdiction when caught, convinces us that this is not a case for interfering with the sentence. 27 In sum, we reject defendant's arguments, and the conviction and sentence are 28 Affirmed.

991 F.2d 791 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Marcus Duke SHELTON, Plaintiff-Appellant,v.James H. MICHAEL, Jr., Defendant-Appellee. No. 92-7210. United States Court of Appeals,Fourth Circuit. Submitted: March 29, 1993Decided: April 22, 1993 Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (CA-92-833) Marcus Duke Shelton, Appellant Pro Se. W.D.Va. AFFIRMED. Before LUTTIG, Circuit Judge, and BUTZNER and CHAPMAN, Senior Circuit Judges. PER CURIAM: 1 Marcus Duke Shelton appeals from the district court's order dismissing without prejudice his complaint filed pursuant to 42 U.S.C. § 1983 (1988). Our review of the record and the district court's opinion discloses no abuse of discretion and that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court.* Shelton v. Michael, No. CA-92-833 (W.D. Va. Nov. 2, 1992). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED * As the district court found, these claims should be brought in a motion made pursuant to 28 U.S.C. § 2255 (1988)

J-S51030-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ANTOINE WILLIAMS Appellant No. 2698 EDA 2014 Appeal from the Judgment of Sentence August 19, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010129-2013, MC-51-CR-0011641-2013 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.* MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 01, 2015 Antoine Williams appeals from the judgment of sentence imposed in the Court of Common Pleas of Philadelphia County, following his convictions for robbery – theft by removing money from a financial institution by making a demand on an employee,1 and related offenses. The trial court set forth the factual history of this case as follows: On December 9, 2011, Ms. Delnisha Sims was working as a bank teller inside a branch office of Sovereign Bank located at 101 East Olney Avenue in Philadelphia when, at about 5:18 p.m., she looked over to her co-worker, Elsa Febes, and noticed that Ms. Febes was red in the face, shaking and appeared to be scared. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 3701(a)(1)(vi). J-S51030-15 Suddenly, Ms. Febes screamed, “Oh, my God. I just got robbed.”1 1 An examination of Ms. Febes’ cash drawer following the robbery showed that it was short $3,303.65. This fact was entered as a stipulation. Ms. Sims immediately observed a person fleeing the bank. Post incident Sims was shown photographs taken from the bank’s surveillance system, and stated that the person depicted in the photographs was the person she saw fleeing the bank. Ms. Sims also provided police with a description of the person approximately five minutes after the robbery occurred. Detective Steven Jefferson, the assigned investigator, recovered a black leather aviator hat outside the entrance of the bank along with a demand note that read, “Give me your fucking money, no dye packs.” Detective Jefferson interviewed [Williams] on March 25, 2013. [Williams] denied involvement in the robbery claiming he had been in Georgia on the day the robbery was committed. The Commonwealth’s key witness was Nicole Lane, [Williams’] former paramour and the mother of two of his children. Lane [was looking at the news online] and in the course of doing so recognized [Williams] as the person depicted in the photograph accompanying the article [about] the purported robber. Lane, employed as a nurse at a correctional facility, reported her observation to her superior at work in accordance with a regulation requiring employees to report any evidence of crime. Lane also identified the hat recovered by police as belonging to [Williams] and also recognized that the handwriting on the demand note was that of [Williams]. Trial Court Opinion, 2/4/15, at 2-3. The Commonwealth charged Williams with robbery – threatening another or intentionally putting him in fear of bodily injury in the course of committing a theft,2 theft by unlawful taking,3 receiving stolen property,4 ____________________________________________ 2 18 Pa.C.S. § 3701(a)(1)(ii). (Footnote Continued Next Page) -2- J-S51030-15 and simple assault.5 On February 6, 2014, at the conclusion of a non-jury trial, the court found Williams guilty of theft by unlawful taking and receiving stolen property. The court also found him guilty of robbery – theft by removing money from a financial institution by making a demand on an employee. Williams filed a motion for extraordinary relief on February 19, 2014, which the court denied July 11, 2014. On August 19, 2014, the court sentenced Williams to eleven and one-half to twenty-three months’ incarceration plus five years’ probation for robbery, followed by two concurrent terms of two years’ probation for the theft convictions. This timely appeal followed, in which Williams raises the following issue for our review: Did the trial court improperly convict Williams of robbery as a felony of the second degree under 18 Pa.C.S. § 3701(a)(1)(vi) where he was never charged with this subsection on the bills of information or formal charging documents, the Commonwealth never amended the bills or the charges, and where Williams was never arraigned on this form of robbery? Appellant’s Brief, at 3. Williams relies, in part, on Pa.R.Crim.P. 564, which provides: _______________________ (Footnote Continued) 3 18 Pa.C.S. § 3921(a). 4 18 Pa.C.S. § 3925(a). 5 18 Pa.C.S. § 2701(a). -3- J-S51030-15 Rule 564. Amendment of Information The court may allow an information to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice. Pa.R.Crim.P. 564. Williams argues the trial court “circumvented the plain language” of the Rule. See Appellant’s Brief, at 16. He maintains that although Rule 564 permits the court to allow amendments requested by the Commonwealth, the court may not amend an information sua sponte. Williams further asserts that the amendment was improper because it occurred after the close of evidence. However, Rule 564 “is a starting point only . . . because our courts apply the rule with an eye towards its underlying purposes and with a commitment to do justice rather than be bound by a literal or narrow reading of the procedural rules.” Commonwealth v. Grekis, 610 A.2d 1284, 1289 (Pa. Super. 1992). “The caselaw sets forth a broader test for the propriety of amendments than the plain language of the rule suggests.” Commonwealth v. Mosley, 585 A.2d 1057, 1060 (Pa. Super. 1991). Our disposition of this matter is informed by In re D.G., 114 A.3d 1091 (Pa. Super. 2015), where this Court noted: In Commonwealth v. Mentzer, 18 A.3d 1200 (Pa. Super. 2011), we set forth our considerations in determining whether the trial court erred in permitting the amendment of the information. -4- J-S51030-15 [W]hen presented with a question concerning the propriety of an amendment, we consider: [w]hether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted. Additionally, [i]n reviewing a grant to amend an information, the Court will look to whether the appellant was fully apprised of the factual scenario which supports the charges against him. Where the crimes specified in the original information involved the same basic elements and arose out of the same factual situation as the crime added by the amendment, the appellant is deemed to have been placed on notice regarding his alleged criminal conduct and no prejudice to defendant results. Further, the factors which the trial court must consider in determining whether an amendment is prejudicial are: (1) whether the amendment changes the factual scenario supporting the charges; (2) whether the amendment adds new facts previously unknown to the defendant; (3) whether the entire factual scenario was developed during a preliminary hearing; (4) whether the description of the charges changed with the amendment; (5) whether a change in defense strategy was necessitated by the amendment; and (6) whether the timing of the Commonwealth’s request for amendment allowed for ample notice and preparation. In re D.G., 114 A.3d 1091, 1095 (Pa. Super. 2015) (citations omitted). Accordingly, the critical issue is whether Williams was prejudiced by the trial court’s amendment of the charge of robbery brought against him. Here, the facts underlying the offense of robbery by committing a theft in the course of which the defendant threatened or put another in fear of -5- J-S51030-15 immediate serious bodily injury (section 3701(a)(1)(ii)) and robbery by removing money from a financial institution by making a demand of an employee (section 3701(a)(1)(vi)) were the same, namely, handing a demand note to a bank teller with the words, “Give me your fucking money, no dye packs.” Prior to trial, Williams was aware that the Commonwealth had the demand note and intended to enter it into evidence. Accordingly, there was no element of surprise in the introduction of this critical piece of evidence necessary to establish the offense set forth in section 3701(a)(1)(vi). At trial, Williams presented no evidence. Nevertheless, during his cross-examination of the Commonwealth’s witnesses, and in his closing statement, Williams’ counsel pursued a defense of mistaken identity. Such a defense was equally applicable to a charge under section 3701(a)(1)(ii) or section 3701(a)(1)(vi). Because the crime originally charged involved the same basic elements and arose out of the same factual situation as the crime included in the amendment, Williams was on notice regarding his alleged criminal conduct. Accordingly, he was not prejudiced by the court’s amendment of the charge. See In re D.G., supra. 6 ____________________________________________ 6 In the statement of questions involved section of his brief Williams also asserts that the trial court improperly denied his post-verdict motion for extraordinary relief. However, he has abandoned that issue. See Appellant’s Brief, at 27. -6- J-S51030-15 Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/1/2015 -7- 

16 F.Supp.2d 74 (1998) FIGAWI, INC., Plaintiff, v. Robert F. HORAN, Defendant. No. CIV. A. 97-11180-REK. United States District Court, D. Massachusetts. July 21, 1998. *75 Peter N. Baylor, Lori J. Polacheck, Nutter, McClennen & Fish, Boston, MA, Patrick M. Butler, Nutter, McClennen & Fish, Hyannis, MA, for Figawi, Inc., Plaintiffs. Roger S. Davis, Davis & Rubin, Boston, MA, for Robert F. Horan, Defendant. Memorandum and Order KEETON, District Judge. I. Procedural and Factual Background Pending for decision before the court is defendant's Motion to Dismiss and Request for Oral Argument (Docket No. 15, filed February 26, 1998). Plaintiff filed opposition (Docket No. 22, filed May 1, 1998). This case arises from the use of a logo and mark for commercial purposes by two parties. They consented to mutual use up to a point in the past, and then parted ways. At the center of the controversy are (i) the undisputed fact that only the defendant has registered the trademark at issue and (ii) plaintiff's disputed allegation that defendant should not have done this because defendant was aware of plaintiff's continued use of the logo and mark. The logo at issue depicts a male described by the parties as a "Native American" wearing a captain's hat and a feather on his head and looking through the wrong end of a telescope. The mark at issue is the name "Figawi." In particular, plaintiff has made the following allegations of fact: Early 1970s. Logo and mark "[are] developed" for promotional use in connection *76 with a boat race from Hyannis to Nantucket over Memorial Day weekend. Verified Complaint at 3 (passive voice in original). There is no mention of who designed or commenced use of the logo and mark. 1979. Defendant registers logo in Massachusetts for use on merchandise. 1980. Plaintiff corporation is formed. 1980-1989. Plaintiff uses logo and mark "with Horan's knowledge and consent." Verified Complaint at 4. At an unspecified time in this period, defendant moves to Florida and ceases to be associated with plaintiff. 1989-present. Plaintiff continues to use logo and mark. Defendant sells "T-shirts and caps, with the Figawi Mark and Logo." Verified Complaint at 7. March 28, 1989. Defendant's registration of logo expires. July 6, 1993. Defendant obtains re-registration of logo in Massachusetts. April 1997. Defendant places advertisement in Boston Globe for merchandise bearing the logo and mark. Plaintiff has filed a seven-count Verified Complaint (Docket No. 1, filed May 23, 1997). Count I of the complaint alleges that defendant's continuing use of the logo and mark described above constitutes unfair competition under the Lanham Act, 15 U.S.C. § 1125(a). Count II alleges that defendant's continuing use of the logo and mark is likely to create confusion among consumers in violation of the Lanham Act, 15 U.S.C. § 1125(a). Count III alleges that (i) defendant's use of the logo and mark in connection with a boat race in Florida dilutes the value of use of the logo and mark in connection with the boat race that plaintiff organizes in Massachusetts, and (ii) that the Massachusetts boat race preceded in time and was "famous" before the boat race in Florida. Count IV alleges trademark infringement under the common law of the Commonwealth of Massachusetts. Count V alleges common law unfair competition. Count VI alleges unfair competition and dilution under statutes of the Commonwealth of Massachusetts, including a Chapter 93A claim. Count VII alleges that defendant committed fraud in applying for renewal of trademark registration in Massachusetts of the logo and mark in 1993 by "knowingly making false statements," in his application for trademark registration. Verified Complaint at 14. The plaintiff specifically identified the following statements allegedly made by defendant: [t]hat he was using the Logo on the listed goods, that he believed himself to be the owner of the Logo, and that he believed no other person had the right in the Commonwealth of Massachusetts to use the Logo in his application for registration. Id. Plaintiff appears to assert a cause of action for fraudulent procurement of trademark registration under Mass. Gen. L. ch. 110B, § 10. With respect to all of these claims, plaintiff asks this court to order declaratory, compensatory and permanent injunctive relief. II. Which, if Any, of the Disputes over Jurisdiction and Venue Should the Court Decide Now? A core issue that none of the submissions filed by the parties addresses squarely and adequately is the extent to which, if both subject-matter and in-personam jurisdiction are shown as to one claim, under federal or state law or both, the court may and should exercise supplemental jurisdiction over one or more other claims, under federal or state law or both. Because the outcome of many of the other disputed issues of law material to the motions now pending before the court may depend on the answer to this core issue, I consider it first. Among the potential sets of circumstances that may exist when a court first considers this core issue are the following: (1) None of the claims alleged in the complaint is a claim over which the court has subject-matter jurisdiction. The only appropriate final order for the court to make in this instance is a dismissal of the civil action for lack of subject-matter jurisdiction. See United Mine Workers of *77 America v. Gibbs, 383 U.S. 715, 722, 727, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Camelio v. American Fed., 137 F.3d 666, 672 (1st Cir.1998); Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995); Brennan v. Hendrigan, 888 F.2d 189, 196 (1st Cir.1989). (2) The court has subject-matter jurisdiction over one or more claims alleged, under federal or state law or both, but none of the claims alleged in the complaint is a claim as to which the plaintiff has met plaintiff's burden of making at least a prima facie showing of in personam jurisdiction over the defendant. In this instance, the court may, and perhaps must in the absence of any material change of circumstances, either (i) dismiss the civil action for lack of in-personam jurisdiction or (ii) make an appropriate procedural order allowing plaintiff a reasonable opportunity to make a showing that the plaintiff, for good cause or excusable neglect, has not so far made. See, e.g., Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (both subject-matter and in-personam jurisdiction must be present); Media Duplication Serv. Ltd. v. HDG Software, Inc., 928 F.2d 1228, 1232 (1st Cir.1991) (lack of personal jurisdiction is sufficient to reverse judgment even when appellant challenges both subject-matter and personal jurisdiction). (3) As to one claim but not others, plaintiff has met plaintiff's burden of showing subject-matter jurisdiction and plaintiff's burden of making a prima facie showing of in personam jurisdiction and venue. In this instance, the court is authorized to determine in an exercise of discretion, that the civil action may go forward on that one claim only, but that the court will not undertake to adjudicate any issue not material to that one claim until one party or the other shows good cause for doing so. That the court is authorized to permit the civil action to go forward on that one claim is well settled. See, e.g., Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 151 (1st Cir.1995); Val Leasing Inc. v. Hutson, 674 F.Supp. 53, 55 (D.Mass.1987) (findings at trial that only supported conclusion of no personal jurisdiction with respect to some counts did not "destroy the Court's jurisdiction over [defendant] with respect to the other counts"). It is less clear that precedents have squarely considered whether, and decided that, the court may limit proceedings in the civil action to issues material to that one claim, but I conclude from the guidance that is available in precedents that this is the most supportable answer. See, e.g., United Elec., Radio and Mach. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1089 (1st Cir.1992) ("defendant's in-state conduct must form an important or at least material element of proof in the plaintiff's case"; also discussing "Gestalt factors") (citations omitted); Milford Power Ltd. Partnership v. New England Power Co., 918 F.Supp. 471, 479-80 (D.Mass.1996) (failure of plaintiff to meet burden of showing in-personam jurisdiction with respect to some claims required dismissal of those claims, even if plaintiff met burden with respect to other claims). But see also Salpoglou v. Shlomo Widder M.D., P.A., 899 F.Supp. 835, 837 (D.Mass.1995) ("Because the court has personal jurisdiction over Widder with respect to the breach of contract claim, it can also exercise personal jurisdiction with respect to the malpractice claim because both arise from a common nucleus of operative fact"); Home Owners Funding Corp. of America v. Century Bank, 695 F.Supp. 1343, 1345 (D.Mass. 1988) ("in a multi-count complaint, if a court has personal jurisdiction over the defendant with respect to one count, it has personal jurisdiction with respect to all counts"). The decisions in these two cases that seem to contradict this court's conclusion, however, analogize "pendant personal jurisdiction" to "pendant subject-matter jurisdiction" in support of their conclusion. That analogy is not persuasive in the face of due process concerns underscored in Insurance Corp. of Ireland, 456 U.S. at 701, 102 S.Ct. 2099, and Media Duplication Serv., 928 F.2d at 1232. Moreover, tendencies toward an expansive concept of pendent jurisdiction — even pendent subject-matter jurisdiction — have been questioned and, in some instances curbed, in *78 more recent precedents that move toward an increasingly claim-based and claim-specific explanation of the scope and limits of jurisdiction of federal trial courts. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 379-81, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (claim for breach of a contract, part of the consideration for which was dismissal of an earlier federal suit; "[n]o federal statute makes that connection (if it constitutionally could) the basis for federal-court jurisdiction over the contract dispute" and "automatic jurisdiction" to decide disputes arising from a contract for dismissal of an earlier federal-court suit is "in no way essential" to conducting federal-court business); Recupero v. New England Tel. & Tel. Co., 118 F.3d 820, 829 (1st Cir.1997) (affirming summary judgment against claim for accidental disability benefits under Employee Retirement Income Security Act (ERISA), on ground that court's function was limited to judicial review and that the plan administrator's denial of benefit was not arbitrary or capricious; and noting claim-specific scope of federal jurisdiction). These three different sets of circumstances obviously do not exhaust the range of possibilities. See, e.g., Boit v. Gar-Tec Prod., Inc., 967 F.2d 671 (1st Cir.1992). But they are adequate for this court's decision of the motions now pending, for the reasons explained in the remainder of this Memorandum and Order. III. Dismissal under Fed.R.Civ.P. 12(b)(2) A. The Applicable Legal Tests Defendant moves to dismiss this civil action for lack of in personam jurisdiction. In support of dismissal on this ground, defendant contends that this court lacks personal jurisdiction over him because, inter alia, (1) the Massachusetts Long-arm Statute does not authorize jurisdiction over defendant, and (2) his contacts with Massachusetts are insufficient under applicable legal tests bearing upon constitutional due process. In opposing the motion to dismiss for lack of in personam jurisdiction, plaintiff contends that either § 3(a) or § 3(c) of Mass. Gen. L. ch. 223A, or both, authorize this court to exercise jurisdiction, and that an exercise of jurisdiction over defendant does not violate his right to due process. Defendant correctly points out that plaintiff bears the burden of showing that the court has jurisdiction. Statutory provisions and precedents do not prescribe a single, mandated procedural structure for deciding an issue regarding in personam jurisdiction. See Boit v. Gar-Tec Prod., Inc., 967 F.2d 671 (1st Cir.1992). Nevertheless, it is settled that at minimum, to defeat a motion to dismiss on this ground, a plaintiff must make a prima facie showing that personal jurisdiction lies in this court. See Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 84 (1st Cir.1997) ("[A]ll litigants effectively are on notice that motions to dismiss for want of personal jurisdiction will be adjudicated under the prima facie standard unless the court informs them in advance that it will apply a more demanding test."). For the reasons stated below, I conclude that plaintiff has made a prima facie showing that this court has authority to exercise jurisdiction over defendant with respect to some claims, but not with respect to other claims. B. Long-Arm Jurisdiction Under Mass. Gen. L. ch. 223A 1. In General Plaintiff has asserted that certain of the acts of defendant, separately or as a totality, amount to "transacting business" and that those acts are enough to show that each claim asserted "aris[es] from" conduct that amounted to "transaction of business" in Massachusetts. See Mass. Gen. L. Ann. ch. 223A, § 3(a). Plaintiff has asserted, in addition, that each claim "aris[es] from" defendant's "causing tortious injury by an act or omission in this commonwealth." See Mass. Gen. L. Ann. ch. 223A, § 3(c). If adequately supported, one or another of these assertions with respect to each claim would allow this court to exercise personal jurisdiction over defendant as to that specific claim if doing so is consistent with constitutional due process. See Foster-Miller, Inc., 46 F.3d at 144. In this case, plaintiff has alleged in the complaint and in his opposition to the motion *79 to dismiss the following contacts of defendant with Massachusetts: (1) defendant applied for, and obtained, re-registration of the logo in Massachusetts in 1993; (2) in April of 1997, defendant placed two advertisements in the Boston Globe for merchandise bearing the logo and mark; (3) defendant has sold "merchandise, including T-shirts and caps, with the Figawi Mark and Logo," Verified Complaint at 7; (4) defendant currently "advertises" a "Figawi South" race on websites that are accessible to consumers in Massachusetts; and (5) defendant mailed to participants in the "Figawi" race (without specifying whether the recipients were in Massachusetts when they received the mailing) a brochure about the "Figawi South" race. Plaintiff has the burden to show that each asserted cause of action "arises from" transacting business in Massachusetts. In this case, plaintiff does not contend that defendant has "continuous and systematic" contacts with Massachusetts. Under these circumstances, personal jurisdiction over defendant with respect to the acts giving rise to one claim does not authorize this court to exercise jurisdiction over the defendant with respect to another claim. See Part II, supra. The questions, therefore, are (1) whether one, or a combination, of the contacts described immediately above constitutes "transacting business" in Massachusetts or constitutes an "act or omission in Massachusetts" that caused tortious injury in Massachusetts, and (2) whether each asserted cause of action "arises from" whatever contacts constitute "transacting business" in Massachusetts or an "act or omission in Massachusetts" that caused tortious injury in Massachusetts. Defendant disputes the relevance and materiality of plaintiff's allegations in opposition to the motion to dismiss. In particular, with respect to (3) above, defendant asserts that he only sold three T-shirts and a cap as a result of his two advertisements in the Boston Globe. See Affidavit of Robert F. Horan in Support of Motion to Dismiss (Docket No. 17, filed February 26, 1998) at 2. In its opposition, plaintiff did not proffer any evidence that may support a determination by this court that defendant's assertion is genuinely in dispute. Furthermore, with respect to the mailing of brochures bearing the logo mark by defendant to unspecified persons at unspecified locations, plaintiff has not alleged that any of the recipients were in Massachusetts when receiving the mailing. Plaintiff's opposition fails to address the claim-specific nature of "specific" in personam jurisdiction under § 3(a) and § 3(c). In this case, the factual allegations described above can be grouped into (1) allegations about acts and omissions allegedly causing a fraudulent 1993 registration and (2) allegations about defendant's use of the logo and mark after he stopped being associated with plaintiff (newspaper advertisement, website advertisement, and merchandise sale). These two different sets of allegations correspond with the types of claims asserted by plaintiff: (i) some are claims about fraud in seeking the registration (most clearly identified in Count VII), and (ii) others are claims about unfair competition, dilution and trademark infringement based on theories other than fraud (all other counts). For the reasons explained in this Memorandum, I conclude that plaintiff has made a prima facie showing that this court has jurisdiction under the Long-Arm Statute over the defendant only with respect to those claims based on allegations that defendant committed fraud in applying for re-registration of a Massachusetts trademark on the logo in 1993. 2. Causing Tortious Injury in Massachusetts by Act or Omission in Massachusetts Plaintiff has alleged that defendant failed to disclose, to the Massachusetts trademark office in 1993, knowledge that other persons, namely plaintiff and those authorized by plaintiff, had consistently and persistently used the logo and mark. A reasonable reading of plaintiff's complaint also reveals an assertion that this failure to disclose may be the basis for other causes of action for unfair competition, dilution and trademark infringement. *80 An allegation of fraud, of course, is an allegation of tortious injury. An allegation of a deliberate failure to disclose material facts in the presence of a duty to disclose is sufficient to assert a cause of action for fraudulent misrepresentation. The filing of the application for registration that allegedly failed to disclose material facts that defendant was under a duty to disclose satisfies the requirement of an act in Massachusetts allegedly "causing tortious injury" in Massachusetts. In addition, it is undisputed that the alleged harm occurred, mostly if not completely, in Massachusetts. For these reasons, I conclude that, with respect to claims based on a theory of fraud in seeking registration, plaintiff has alleged sufficient facts to make a prima facie showing of in personam jurisdiction under § 3(c). Nevertheless, for the reasons explained immediately below, I conclude that, with respect to the claims of trademark infringement, unfair competition, and dilution, to the extent that these claims are based on allegations of conduct other than fraud at the time of registration, plaintiff has not made a prima facie showing that defendant caused tortious injury by acts or omissions in Massachusetts. Plaintiff correctly points out that allegations of unfair competition and trademark infringement, when adequately plead as in this case, are ordinarily allegations of tortious injury. See Keds v. Renee Int'l Trading Corp., 888 F.2d 215, 218 (1st Cir.1989) (trademark infringement is a tort). Another issue of concern, however, is whether defendant caused this alleged tortious injury by acts or omissions in this Commonwealth. Plaintiff contends that the "advertisement" on a website, the two advertisements in the Boston Globe and the sales of merchandise that plaintiff alleges are, as a matter of law, acts in Massachusetts causing tortious injury in Massachusetts for purposes of § 3(c). Plaintiff seems to rely on Digital Equip. Corp. v. Altavista Technology, Inc., 960 F.Supp. 456 (D.Mass.1997). In that case, the court determined that contents of a website were acts in Massachusetts that caused trademark infringement in the commonwealth because defendant "knows that its Web-site reaches residents of Massachusetts [who] choose to access it, just as surely as it knows any letter or telephone call is likely to reach its destination." 960 F.Supp. at 466. Plaintiff contends that the website advertisement, newspaper advertisement and merchandise sales in this case are essentially similar to the website use of the trademark in Altavista. In any event, however, defendant's placement of the newspaper ad and the sales of merchandise from Florida, as alleged, are, as a matter of law, out-of-state acts. See Keds, 888 F.2d at 218 (sale of merchandise via phone and mails is "act outside the commonwealth"). And plaintiff's allegations regarding defendant's "website advertisement," in this case, do not even assert that defendant knew that the "Figawi South" race was advertised on the Web. Thus, I conclude that plaintiff has failed to make such a prima facie showing with respect to claims based on all other allegations, even though plaintiff has made a prima facie showing that the alleged acts of defendant in applying for re-registration of the trademark in 1993 were acts or omissions in Massachusetts causing tortious injury in Massachusetts. 3. Transacting Business in Massachusetts For purposes of deciding in personam jurisdiction under the Massachusetts Long-Arm Statute, the question remains whether this court has in personam jurisdiction under § 3(a) ("transacting business") over the defendant with respect to claims other than allegations of fraud in seeking registration of the trademark in 1993. In opposing the motion to dismiss, plaintiff fails to connect each set of allegations with each cause of action asserted. Instead, plaintiff contends that all of the contacts described above constitute either "transacting business in Massachusetts" or acts or omissions causing tortious injury in Massachusetts, and that all of plaintiff's claims "arise from" one or more of these contacts. In support of these contentions, plaintiff cites Christopher v. Mount Snow, Ltd., 1996 WL 590738 (D.Mass.1996), for the proposition that "any advertisement" in Massachusetts *81 constitutes "transacting business." The case, however, does not support the proposition that "any advertisement" would do. Instead, the case states that the advertisement must be "purposeful" and "persistent." Christopher, 1996 WL 590738, at *2-*3. Indeed, the Supreme Judicial Court has determined that one advertisement in a publication "distributed in Massachusetts" and a subsequent sale by the out-of-state defendant to the instate plaintiff, over the phone and mails, do not constitute "transacting business" in Massachusetts. Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151, 376 N.E.2d 548, 550 (1978). In this case, plaintiff's allegations are closely analogous to those in Droukas. For these reasons, I conclude that plaintiff has failed to make a prima facie showing that defendant was "transacting business in Massachusetts" with respect to claims based on allegations other than the alleged fraud in seeking re-registration of the trademark in 1993. 4. "Arising from" Among other possibilities, a cause of action may "arise from" contacts with the Commonwealth if "defendant['s] contacts with the Commonwealth constitute the first step in a train of events that result[s] in" the alleged harm, that is, if the contacts are a "but for" cause. Lyle Richards Int'l Ltd. v. Ashworth, Inc., 132 F.3d 111, 114 (1st Cir. 1997) (citations omitted); Tatro v. Manor Care, Inc., 416 Mass. 763, 770, 625 N.E.2d 549, 553 (1994). Plaintiff's claims based on allegations of fraud in seeking registration of the trademark "arise from" an act or omission that allegedly caused tortious injury in Massachusetts. "But for" defendant's failure to disclose his alleged knowledge that plaintiffs were using the logo and mark in filing his application for re-registration in Massachusetts in 1993, plaintiff would not be able to assert a cause of action, based on that theory, against defendant. For these reasons, I conclude that plaintiff has made a prima facie showing that his claims based on allegations of fraud in seeking re-registration "arise from" acts or omissions in Massachusetts causing tortious injury in Massachusetts. C. Due Process Considerations The appropriate constitutional inquiry in this case is guided by First Circuit precedent: First, the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state activities. Second, the defendant's forum-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of the state's laws and making the defendant's involuntary presence before the state's court foreseeable. Third, the exercise of jurisdiction must, in light of the Gestalt factors, be reasonable. Nowak v. Tak How Investments, Ltd., 94 F.3d 708, 712-13 (1st Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1333, 137 L.Ed.2d 493 (1997). 1. Relatedness The standard for meeting the "relatedness" prong of the applicable test is whether defendant's acts were a "proximate cause" of plaintiff's alleged harm. Nowak, 94 F.3d at 716. In this case, a reasonable person in defendant's position would have foreseen that his allegedly fraudulent application for registration would result in harm to plaintiff in Massachusetts. The proximate cause standard is satisfied. For these reasons, I conclude that plaintiff has made a prima facie showing of "relatedness" with respect to claims alleging fraud by defendant in seeking re-registration of the trademark in 1993. 2. Purposeful Availment The defendant filed an allegedly fraudulent application for re-registration of the logo as a protected trademark in Massachusetts. In these circumstances, as a matter of law, the defendant should have anticipated the likelihood of being haled into court in Massachusetts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). See also National Patent Dev. Corp. v. T.J. Smith & Nephew Ltd., 877 F.2d 1003, 1009-10 (D.C.Cir.1989) (registration *82 of patent with United States Patent and Trademark Office by foreign national sufficient to constitute "purposeful availment" in this country). Furthermore, defendant's acts leading to re-registration in 1993 were indisputably voluntary. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). For these reasons, I conclude that plaintiff has made a prima facie showing of "purposeful availment" with respect to claims alleging fraud by defendant in seeking re-registration of the trademark in 1993. 3. Reasonableness under the Gestalt Factors The applicable "gestalt factors" are the following: (1) defendant's burden of appearing, (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the judicial system's interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies. Nowak, 94 F.3d at 717 (citations omitted). In this case, important interests of Massachusetts are at stake. Plaintiff has alleged serious violations of federal and state trademark laws. More importantly, the allegation that defendant committed fraud on the Massachusetts trademark office, thus harming plaintiff, is conduct that lawmakers in Massachusetts have proscribed by statute. Mass. Gen. L. ch. 110B, § 10. In addition, the allegations of fraud are sufficient to state a cause of action under Mass. Gen. L. ch. 93A, a statute through which Massachusetts provides a high standard of protection and possible awards of multiple damages and attorney's fees to individuals and businesses doing business in Massachusetts. For these reasons, Massachusetts, more than any other forum, has a strong interest in adjudicating these claims and allegations. Plaintiffs interest in convenient and effective relief also weighs in favor of exercising jurisdiction. Many of plaintiff's claims are claims for declaratory and injunctive relief. This type of relief frequently requires ongoing involvement of the court. In this case, the appropriate declaratory and injunctive relief, if any, is likely to order the parties to do or not do something in Massachusetts. For these reasons, effective relief is likely to be greater in Massachusetts. To be sure, the inconvenience to defendant of defending a case in Massachusetts is great because he is a resident of Florida. Nevertheless, the seriousness of the allegations, in light of the record before the court, makes the interests of Massachusetts and plaintiff more compelling than those of defendant. For these reasons, I conclude that plaintiff has made a prima facie showing that the gestalt factors weigh heavily in favor of exercising jurisdiction with respect to claims based on allegations that the defendant committed fraud in seeking re-registration of the trademark on the logo in Massachusetts in 1993. D. Surviving Claims After having determined the appropriate scope of jurisdiction, I proceed to identify the claims with respect to which, because they are based on the allegations of fraud by defendant in applying for re-registration in 1993, this court has in personam jurisdiction over the defendant. For the reasons stated below, I conclude that, after the rulings above, only two claims remain in this case and only with respect to the allegedly fraudulent application for re-registration in 1993:(1) a claim for deceptive trade practices by defendant under Mass. Gen. L. ch. 93A, § 11, and (2) a claim for fraudulent procurement of registration under Mass. Gen. L. ch. 110B, § 10. Plaintiff alleges "fraudulent conduct" only in Count VII of the complaint. Count VII is reasonably interpreted as asserting a cause of action for fraudulent procurement under Mass. Gen. L. ch. 110B, § 10. All of the events leading to the "fraudulent procurement" took place before defendant completed his efforts in seeking re-registration in 1993. The statute provides that: Any person who shall for himself, or on behalf of another person, procure the filing or registration of any mark in the office of *83 the state secretary, by knowingly making any false or fraudulent representation or declaration, verbally or in writing, or by any other fraudulent means, shall be liable to pay all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction. Mass. Gen. L. ch. 110B, § 10. Under this statutory action, the fraud takes place in "procur[ing]." I conclude that the allegations in Count VII and in other parts of the complaint also allege sufficient conduct to state a cause of action under Chapter 93A for deceptive trade practices with respect to the allegations of fraud. This court has not been able to identify any other claims in plaintiff's Verified Complaint that are allegedly based on plaintiff's allegations of fraud by the defendant in applying for re-registration. If plaintiff disagrees with this determination, plaintiff may file an appropriately supported motion for reconsideration of this ruling on or before Thursday, August 13, 1998. Defendant may file a response to such a motion on or before Friday, August 28, 1998. IV. Dismissal under Fed.R.Civ.P. 12(b)(3) Defendant moves under Rule 12(b)(3) to dismiss plaintiff's complaint because this district court is an improper venue in which to proceed. In opposition, plaintiff points to the applicable statute: A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought ... in ... (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C. § 1391(a). In cases "wherein jurisdiction is not founded solely on diversity of citizenship," venue also lies in such a district. 28 U.S.C. § 1391(b). In Part III above, I have determined that a substantial part of the events or omissions giving rise to those claims as to which plaintiff has made a prima facie showing of in personam jurisdiction over defendant took place in Massachusetts. For those reasons, I conclude that venue is proper in this district. V. Dismissal under Fed.R.Civ.P. 12(b)(6) Defendant moves under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff's complaint. Defendant contends that plaintiff has failed to assert a cause of action upon which this court could grant relief. In light of the jurisdictional rulings in Part II above, I reach defendant's 12(b)(6) contention only with respect to surviving claims in this case, that is, claims based on plaintiff's allegation that defendant committed fraud in filing an application for re-registration of a trademark on the logo in Massachusetts in 1993. In deciding the present motion to dismiss with respect to those claims, this court must accept as true all well-pleaded factual assertions in plaintiffs' complaint and draw all reasonable inferences from those assertions in plaintiff's favor. Aybar v. Crispin-Reyes, 118 F.3d 10, 13 (1st Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 857, 139 L.Ed.2d 757 (1998) (citation omitted). Proceeding in this way, I conclude that reasonably disputable legal-factual issues must be resolved to decide a Rule 12(b)(6) motion founded on a limitation defense. I leave that decision to be made on a record that does not suffer from the incompleteness in material respects of the record now before me. ORDER For the reasons stated in the foregoing Memorandum, it is ORDERED: Defendant's Motion to Dismiss (Docket No. 15) is DENIED, but, until a showing of good cause for doing otherwise, proceedings in this Civil Action will be limited to matters bearing upon the merits of plaintiff's claims allegedly arising from fraud associated with defendant's application in 1993 for renewal of trademark registration in Massachusetts of the logo and mark at issue, and the claims under Mass. Gen. L. ch. 93A, § 11 and Mass. *84 Gen. L. ch. 110B, § 10 identified in Part III.C of the Memorandum above.

575 F.2d 299 Smithv.Neeco, Inc.* No. 77-2711 United States Court of Appeals, Fifth Circuit 5/19/78 1 S.D.Miss. 2 AFFIRMED*** * Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409 *** Opinion contains citation(s) or special notations

636 N.E.2d 682 (1993) 263 Ill. App.3d 968 201 Ill.Dec. 250 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert GEORGE, Defendant-Appellant. No. 1-90-2005. Appellate Court of Illinois, First District, Second Division. August 17, 1993. Rehearing Denied September 29, 1993. *684 Office of the State Appellate Defender, Chicago (Michael J. Pelletier and Debra R. Salinger, of counsel), for defendant-appellant. State's Atty. of Cook County, Chicago (Jack O'Malley, Renee Goldfarb, Susan Schierl and Matthew L. Moodhe, of counsel), for plaintiff-appellee. Presiding Justice McCORMICK delivered the opinion of the court: Following a bench trial, defendant Robert George was found guilty of murder and sentenced to 20 years' imprisonment. On appeal, defendant contends that (1) he did not waive his right to a jury trial; (2) the State failed to prove beyond a reasonable doubt that he was accountable for the murder; (3) the trial court considered improper evidence against him; (4) the simultaneous joint jury and severed bench trial with three codefendants denied defendant a fair trial; and (5) the trial court improperly failed to hold a hearing on defendant's fitness to stand trial. We affirm the judgment of the trial court. I. On September 20, 1988, defendant requested severance of his trial from the trials of codefendants Thomas Basden and Shawn Downey. The trial court granted the motion. On May 8, 1989, counsel for codefendant Michael George, defendant's cousin, moved for severance from Basden and Downey. With defendant present in court, the prosecutor noted that because counsels for defendant and Michael George had indicated that they sought bench trials, the jury trial of Basden and Downey could proceed together with the bench trial of the Georges. Counsel for Michael George answered that the possibility of a bench trial had no bearing on the severance motion: "If we indicate a bench [and] on that morning [of trial], my client wishes a jury, we have to bring up a double jury * * *. [I]f the posture changes, we'll let you know." The court granted the severance and asked about scheduling the trial. The four attorneys agreed to a single tentative trial date for all defendants. Michael George's counsel said he anticipated a bench trial, and defendant's attorney said, "[s]ame for Robert George, ma'am, bench trial at this time." The four defendants later moved for substitution of judge. At the hearing on the motion, with defendant present in court, defendant's attorney said: *685 "There are two lawyers who have opted not to take juries and were opting for a bench trial and Judge Morgan would have to rule directly on the evidence in those cases." The court denied the motion for substitution. Defendant said nothing. At the beginning of jury selection, the trial court excused defendant from the courtroom. The next day, defendant moved for severance from Michael George. The trial court said, "[I]t seems to me since these are bench trials anyway, I don't have any problems with the severance." Neither defendant nor his counsel objected to the trial court's assertion that defendant would have a bench trial. Following a recess and before bringing the jury into court, the trial court requested opening statements for "the bench people." Defendant's attorney then made a brief opening statement to the trial court. The trial court brought in the jury and said: "[T]here [are] two other defendants whose cases you will not be hearing. Their cases are being heard by the court." The trial court permitted counsel for the Georges to introduce themselves and their clients to the jury. Defendant contends that he did not validly waive his right to a jury trial because the trial court never expressly informed him of his right to jury trial, and defendant never stated on the record that he waived his right to a jury trial. "[A] jury waiver, to be valid, must be knowingly and understandingly made. [Citations.] That determination cannot rest on any precise formula and necessarily turns on the facts and circumstances of each particular case. [Citations.] Recognizing that the accused typically speaks and acts through his attorney, we have given effect to jury waivers made by defense counsel in defendant's presence where defendant gave no indication of any objection to the court hearing the case. * * * We have not required that the record affirmatively establish that the court advised defendant of his right to a jury trial and elicited his waiver of that right [citation], nor that the court or counsel advised defendant of the consequences of the waiver." People v. Frey (1984), 103 Ill.2d 327, 332, 82 Ill.Dec. 661, 469 N.E.2d 195. Here, defendant's counsel stated in open court that defendant, like Michael George, was indicating a bench trial as of May 1989, almost a year before the trial actually began, but after the trial court granted defendant's motion for severance from Basden and Downey. The waiver at the May 1989 hearing was somewhat equivocal because defendant's attorney qualified the waiver with the phrase, "at this time." The attorney adopted the position of Michael George's counsel, who said that he anticipated a bench trial, and if the posture changed, he would inform the trial court. Neither Michael George nor Robert George ever informed the trial court of any change in the posture of their cases. Defendant failed to inform the trial court of any change in his position on the morning of trial, when the trial court again asserted that the Georges were to have bench trials, while a jury was to hear the trial of Basden and Downey. Before bringing codefendants' jury into the courtroom, the trial court requested opening statements for "the bench people." Defendant's attorney complied with this request and made an opening statement to the trial court outside the presence of the jury. Neither defendant nor his counsel objected at any time, either before or during trial to a bench trial for defendant while Basden and Downey had a jury trial. It is indeed insufferable to allow defendant to knowingly participate in a bench trial without protest or demand for a jury trial with a view that if an adverse judgment is rendered, he would be granted a new trial because of the absence of an affirmative waiver of his right to a jury trial. From the facts and circumstances of this case, we infer that defendant understood his right to a trial by jury and he knowingly waived that right. See Frey, 103 Ill.2d at 332, 82 Ill.Dec. 661, 469 N.E.2d 195. II. Defendant next argues that the evidence does not prove beyond a reasonable doubt that he is guilty of murder. Defendant does *686 not dispute evidence that on February 29, 1988, he drove a car into an alley near 39th Street and St. Louis Avenue. Basden and Downey, passengers in the car, fired shots down the alley where some boys were playing basketball. A bullet from Basden's gun killed Juan Madrigal. Defendant argues that the evidence does not show that he knew Basden had a gun or that he intended to shoot, so defendant cannot be held accountable for Basden's acts. James Pelikan, nicknamed "Jimbo," testified that on February 28, 1988, the day before the shooting, he discovered on his garage, in the alley near 39th Street and St. Louis Avenue, graffiti stating: "Jimbo and Frank dies, [Satan] Disciples, 36th and Rockwell, Two-Six Killer * * * Godfather and Player." Pelikan, who was a lieutenant in a street gang called the Two-Six, has a brother named Frank. He knew that Michael George had the nickname "Godfather," and defendant was called "Player." Since 1982, Pelikan had disagreements with the Georges because they belonged to the Satan Disciples, a rival gang. Pelikan admitted that he did not see anyone put the graffiti on the garage, so he did not know exactly when it was done. Pelikan was standing near Madrigal, watching the basketball game in the alley, when defendant drove into the alley and Basden shot Madrigal. On direct examination, Pelikan said that the car from which the fatal shot was fired "pulled up" at the intersection in the alley. On cross-examination, he assented when defense counsel asked: "[A] car slowed down and some shots were fired. Is that correct?" Joe Gutierrez testified that after school on February 29, 1988, he and about 10 of his friends saw defendant and three others walking towards them as they were walking from their high school. Several of the persons with Gutierrez were members of the Two-Six. Defendant made gang hand signals for the Satan Disciples and signals to put down the Two-Six. Defendant pulled out a gun from up his pants far enough so that Gutierrez could see the handle. Defendant put his hand out front, which Gutierrez interpreted to mean "[l]ater on," but he admitted the gesture could have meant "stay back." Gutierrez and his friends went to the alley behind 39th and St. Louis and played basketball. He said that the car defendant drove stopped in the alley before the shots were fired. Ricky Cataldo, who was 14 in 1988, testified that on February 29, 1988, he went with Downey, Basden and the Georges to Basden's home to pick up Basden's father's car. Cataldo saw the other four talking, but they fell silent and all got into the car when Cataldo approached them. Defendant sat in the front passenger seat and Michael George sat behind him. Cataldo sat in back, between Downey and Michael George. No one in the car discussed guns or the Two-Six gang. Basden "drove to Rockwell, took Rockwell to 38th Street, 38th Street up to St. Louis and St. Louis to 39th," and then he drove to Downey's home on 35th Place. Downey went into his house and returned to the car moments later. Cataldo testified that Basden drove back to the area of 39th and St. Louis, where he stopped to change places with defendant while Downey switched with Michael George. Defendant drove into the alley while Basden and Downey rolled down the windows on the passenger side of the car. Defendant turned at the T-intersection in the alley and stopped for a few seconds while Basden and Downey fired. Defendant did not tell either Basden or Downey to roll down their windows or fire their guns. Cataldo said defendant drove a few blocks and changed places with Basden again. Basden drove to a K mart parking lot at 51st and Kedzie, where defendant and Michael George took the guns and left the car. We find that the trial court properly held defendant accountable for Basden's acts. "In order to establish the defendant's legal accountability for the offense * * *, the State must prove beyond a reasonable doubt that the accused solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense, that such participation occurred either before or during the perpetration of the crime, and that this participation *687 was with the concurrent, specific intent to promote or facilitate the commission of the offense. [Citations.] While mere presence at the scene of the crime is insufficient to establish legal accountability for commission of the offense, one may aid or abet without actively participating in the overt act. [Citations.] Words of agreement are not necessary to demonstrate a common purpose to perpetrate a crime, since the common design can be inferred from the circumstances surrounding the commission of the unlawful act. [Citations.] Although it is true that legal accountability for a crime is based on the defendant's assistance before or during the commission of the criminal act, the defendant's conduct subsequent to the offense may raise an inference of prior or concurrent participation. [Citations.] While mere presence at the scene of the crime is not culpable and knowledge by the defendant that a crime was being committed does not constitute aiding or abetting [citations], proof that the accused was present during the commission of a crime without opposing or disapproving it, that she maintained a close affiliation with her companions after the perpetration of the offense and that she failed to report the crime are all factors which the trier of fact may consider in determining the defendant's legal accountability." People v. Grice (1980), 87 Ill.App.3d 718, 724-25, 43 Ill.Dec. 209, 410 N.E.2d 209. Here, defendant argues that the record contains no evidence that he knew Basden and Downey had guns or that they intended to shoot when he slowed down at the intersection in the alley. Cataldo testified that defendant switched places with Basden; Basden could more readily shoot because he was no longer driving. The witnesses testified that defendant did not merely slow down, he stopped after turning at the T-intersection in the alley with Basden's side of the car facing the crowd in the alley. When defendant got out of the car, he took the gun from Basden and disposed of it, ostensibly to help Basden escape detection. Thus, defendant's acts aided Basden and those acts support the inference that defendant intended to facilitate the offense. The graffiti on Pelikan's garage, as well as Gutierrez's account of the encounter with defendant earlier on the day of the shooting, further supports the finding that defendant specifically intended to facilitate commission of the crime. The record adequately supports the trial court's finding that defendant was accountable for Basden's acts. III. Defendant next argues that the trial court considered evidence not admissible against him in determining his guilt. Basden's statement was not admitted into evidence against defendant, but the trial court heard the assistant State's Attorney read the statement into evidence against Basden and Downey in the jury trial which the trial court conducted simultaneously with defendant's bench trial. Although Basden's statement is not included in the record on appeal in this case, it is in the record for People v. Thomas Basden, docket no. 1-90-1335. In that statement, Basden said that when he first drove around 39th and St. Louis, he saw a group playing basketball in the alley, so he drove into the alley to get a closer look. When he saw members of the Two-Six in the crowd, he drove to Downey's house, where Downey picked up a gun. He then drove back to the area of 39th and St. Louis, where he and Downey changed places with the Georges, before defendant drove the car on its second pass through the alley. No witness and no evidence included in the record against defendant indicated that defendant and codefendants went into the alley the first time they went to the area of 39th and St. Louis, before they switched places in the car. No evidence admitted against defendant shows that the car made two passes through the alley. Throughout trial, the trial court indicated that it was carefully keeping track of which evidence had been admitted against each defendant. After all parties rested in the bench trials, the trial court decided to delay ruling on the cases to give it an opportunity to review the evidence specifically admitted against each defendant before ruling. A few days later, after hearing closing arguments, the trial court said: *688 "[B]ased on the evidence, considered attributable to each of the Defendants separately, * * * this Court has no doubt in its mind that Robert George knew what was going to go down * * *. * * * * * * We do know that Juan Madrigal was shot and killed that night * * *. We do know that those shots came from Basden's car. * * * [W]e do know that Robert George was driving the car at the time those shots were fired * * *. * * * * * * * * * I considered the evidence that the car drove by * * * and the switching took place[. T]his is Tom Basden's car and he is driving as you would normally expect, unless there is some reason for him not to drive. The evidence has shown that the gun[s] belonged to Basden and Downey, and this switching did take place and it did place those shooters on the side of the car that was going to be facing that crow[d] on the next pass through that alley. * * * [This court] infer[s] that some conversation had taken place at some point because * * * [the defendants] did this specific switch [ ] to put the two shooters on the passenger side of the car. * * * [E]verybody knew where they were supposed to go. * * * Robert was driving the car after he switched with Tom. Whether that car came to a full stop or merely slowed down, I think that that cannot be taken as anything other than facilitating the shots that were fired * * *. * * * * * * There is again a switching after the shooting where people resumed their prior positions and again, I * * * infer * * * the admission of the common purpose having been accomplished * * *. I do think * * * that a conspiracy did exist. * * * I certainly think it existed to the point where Michael asked for the guns out at K-Mart. * * * Michael George and Robert George were going to take the responsibility for getting rid of them. * * * [T]hose guns were not recovered. * * * [I]t would be unreasonable to assume that Michael and Robert were there not knowing what on earth was going on[,] not knowing that Basden had a gun * * *." (Emphasis added.) The trial court concluded that defendant was accountable for Basden's acts. In a post-trial motion, Michael George's attorney objected to the conviction because the trial court based it on the car having taken two passes through the alley. Counsel noted that only Basden's statement showed two passes through the alley, and that statement was not admissible in the bench trials. The trial court reaffirmed the conviction, briefly restating the evidence apart from the two passes through the alley which supported the finding of accountability. Defendant now asserts that the conviction must be reversed because the trial court referred to two passes through the alley. The trial court apparently based its assertion on Basden's statements to the police, and use of that evidence against defendant would violate the confrontation clause of the sixth amendment because Basden was not subject to cross-examination. (People v. Dixon (1988), 169 Ill.App.3d 959, 967, 120 Ill.Dec. 249, 523 N.E.2d 1160.) The record contains no direct evidence that the four defendants saw a basketball game or members of the Two-Six the first time they drove in the area of 39th and St. Louis. This court presumes that the trial court in a bench trial considered only competent evidence in reaching its verdict, but an affirmative showing that the trial court considered improper evidence will overcome the presumption. (People v. Nuccio (1969), 43 Ill.2d 375, 396, 253 N.E.2d 353.) Where the court has considered such inadmissible evidence, even if the evidence violates a constitutional prohibition, this court should affirm the conviction if the error was harmless beyond a reasonable doubt. People v. Schmitt (1989), 131 Ill.2d 128, 140, 137 Ill.Dec. 12, 545 N.E.2d 665. *689 In this case, we have a particularly strong indication that the trial court would have reached the same verdict if it had not considered the evidence of two passes through the alley against defendant. When counsel for Michael George pointed out to the trial court her erroneous assertion that there had been two passes through the alley, the trial court recounted the evidence properly admitted against the Georges, and stated that that evidence formed the basis for its verdict. Since the properly admitted evidence upon which the trial court actually relied adequately supports the verdict, we find beyond a reasonable doubt that the erroneous consideration of evidence of two passes through the alley had no effect on the verdict. IV. Defendant maintains that he did not receive a fair trial because the three separate trials of four defendants confused the trial court. Defendant points to two comments the trial court made to support his argument. During trial, when counsel for Michael George moved to strike Gutierrez's testimony regarding the encounter with defendant on grounds that Gutierrez did not say Michael George was there, the trial court said: "I am not going to strike the testimony. What you have to do is differentiate between what is admissible and what weight that testimony might be given at some future date given the totality of the circumstances. I'm sure that one of the things that I think is happening is some confusion coming forth around the fact that we're doing things simultaneously. * * * I don't think I can remember a trial recently where every witness who testified had to testify to something that was in the presence of the defendant. There are all kinds of background witnesses, circumstantial witnesses. * * * The witness relative to [Michael George] is quite another matter. And certainly I would in looking at that testimony at the end would certainly not overlook the fact that * * * he never identified your defendant. That's all part of weighing the evidence. I don't see any basis to strike the evidence." Later, the State sought to elicit from Officer James Spratte testimony that Michael George's mother told him on the night of the shooting that she last saw Michael in Basden's car and that she told Spratte where Basden lived. Spratte said that he did not remember whether the woman at Michael George's home identified herself. The prosecutor asked what she said and all defense counsel objected. The trial court heard argument on the objections in chambers. The prosecutor and counsel for Michael George contradicted each other concerning evidence already presented, and the trial court said: "Counsels, please. I realize that there are a lot of ins and outs of this case and everybody gets confused about what is or isn't [in evidence] at this point but I think given the fact that he cannot identify [the woman, the objection should be sustained.]" Defendant argues that the trial court's comments show that the procedure of simultaneously conducting two severed bench trials of the Georges and a jury trial of the other two defendants was too complex, and that by using this procedure the trial court denied him a fair trial. Defendant did not object in the trial court to the simultaneous trials. In Schmitt, the defendant argued on appeal that separate but simultaneous bench trials of him and a codefendant violated his right to a fair trial. Our supreme court held that that defendant "cannot claim error in the procedure employed by the court where he willingly participated without objection." (Schmitt, 131 Ill.2d at 137, 137 Ill.Dec. 12, 545 N.E.2d 665.) The court in Schmitt proceeded to consider and reject the argument on the merits. The court found that the trial court was capable of adequately compartmentalizing its consideration of the evidence, so the simultaneous trials in that case did not deny defendant a fair trial. In this case, the trial court repeatedly indicated that evidence at trial was admissible against only some of the defendants, or *690 that evidence had different weights against different defendants. Defendant has not pointed to any error in the court's rulings on the evidence. Defendant relies instead on two comments the trial court made in the course of trial concerning the complexity of the proceedings. The first occurred in the trial court's explanation of its ruling that evidence of the encounter between defendant and Gutierrez would be admissible against all defendants, and the second was an admonition to stop counsel from arguing with each other in chambers. Neither comment indicated that the simultaneous trials were overtaxing the trial court's ability to compartmentalize consideration of the evidence. The record as a whole does not show that the procedure of conducting simultaneous bench and jury trials was so complex that it effectively denied defendant a fair trial. V. Finally, defendant objects to the trial court's failure to hold a hearing on his fitness to stand trial. At the sentencing hearing, the trial court observed that the presentence investigation revealed that after arrest and before trial, defendant shot himself in the head, cut his arms with a razor and took an overdose of pills in three unsuccessful suicide attempts. Defendant's attorney admitted that he was unaware of the incidents. The trial court ordered an examination to determine defendant's competence for sentencing. Although the psychiatrist's report of the examination is not in the record, the trial court stated that according to that report, the psychiatrist found defendant fit for sentencing. The trial court sentenced defendant to the minimum term of 20 years' imprisonment. Defendant contends that the trial court should have sua sponte conducted a separate hearing to determine whether defendant was fit to stand trial apart from the hearing on competence for sentencing. "To require an accused to stand trial when he is unfit to do so constitutes a denial of due process. [Citations.] A defendant is unfit to stand trial if, because of a mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. [Citations.] Fitness speaks only to a person's ability to function within the context of trial; it does not refer to sanity or competence in other areas. A defendant can be fit for trial although his mind may be otherwise unsound. [Citation.] The mere fact that defendant suffers some mental disturbance or requires psychiatric treatment does not necessarily raise a bona fide doubt as to his ability to understand the nature and purpose of the proceedings against him or to assist in his defense. [Citations.] When a bona fide doubt as to defendant's fitness to stand trial is raised, the court shall order that a determination of that question be made before further proceedings. [Citations.] The critical inquiry is, did the facts presented raise a bona fide doubt that defendant possessed the two qualities necessary to make him fit for trial. [Citations.] The initial determination of whether a bona fide doubt has been raised is a decision resting within the discretion of the trial court since it is in a better position to observe and evaluate defendant's conduct. [Citations.] Accordingly, the trial court's decision will not be disturbed on review unless there is a clear showing of an abuse of discretion." People v. Bivins (1981), 97 Ill.App.3d 386, 388-89, 52 Ill.Dec. 835, 422 N.E.2d 1044. Defendant claims that his three suicide attempts raised a bona fide doubt of his fitness for trial. In People v. Lopez (1991), 216 Ill.App.3d 83, 159 Ill.Dec. 577, 576 N.E.2d 246, the trial court held no hearing on defendant's fitness to stand trial despite his suicide attempt and his history of mental illness, including several periods of hospitalization. The court found that the suicide attempt and hospitalizations did not create a bona fide doubt of defendant's fitness to stand trial. In People v. Jones (1982), 109 Ill.App.3d 120, 64 Ill.Dec. 709, 440 N.E.2d 261, the appellate court found that the trial court did not abuse its discretion although the court held no hearing on the fitness to stand trial of a defendant who had a substantial history *691 of mental illness. The appellate court emphasized the trial court's ability to view the defendant and the fact that "[d]efense counsel, who would have been the first to know whether the defendant was unable to assist in his defense, never questioned the defendant's fitness." (Jones, 109 Ill.App.3d at 130, 64 Ill.Dec. 709, 440 N.E.2d 261.) The appellate court also noted that "within a month after the defendant's conviction, he was again examined and found to be fit" for sentencing. Jones, 109 Ill.App.3d at 130, 64 Ill.Dec. 709, 440 N.E.2d 261. Defendant's attempted suicides do not, in and of themselves, raise a bona fide doubt of the defendant's fitness for trial, because the suicide attempt has no direct bearing on the issue of whether defendant can understand the charges and assist in preparing a defense. (Lopez, 216 Ill.App.3d 83, 159 Ill.Dec. 577, 576 N.E.2d 246.) When defense counsel has neither indicated a problem in preparing a defense nor requested a fitness hearing, evidence of mental illness alone does not provide grounds for reversing a conviction. (Jones, 109 Ill.App.3d 120, 64 Ill.Dec. 709, 440 N.E.2d 261.) Certainly, defendant's suicide attempts create a bona fide doubt of his sanity. However, defendant's behavior was not so severely aberrant as to raise a serious doubt of his ability to function within the context of trial. (Cf. People v. Harris (1983), 113 Ill.App.3d 663, 69 Ill.Dec. 506, 447 N.E.2d 941.) The trial court saw no indication that defendant was unfit, defense counsel never suggested that he had any difficulty in preparing a defense and a psychiatrist subsequently found him fit for sentencing. We find that the trial court did not abuse its discretion when it decided not to hold a post-trial hearing on defendant's fitness to stand trial. For the reasons stated above, we affirm the judgment of the circuit court of Cook County. Affirmed. HARTMAN and SCARIANO, JJ., concurring.

Filed 2/10/16 Robinson v. Cooper CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE STEPHEN P. ROBINSON, B262826 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. EC056563) v. DONALD E. COOPER et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Mary H. Strobel, Judge. Dismissed. Law Office of Stephen P. Robinson and Stephen P. Robinson, in pro. per., for Plaintiff and Appellant. Donald E. Cooper, in pro. per., for Defendants and Respondents.  Plaintiff, Stephen Robinson, purports to appeal from the December 18, 2014 final statement of decision filed after the completion of one of two phases of a court trial. Plaintiff’s claims arose from a dispute with another attorney, former clients and three lien claimants. We noted that typically a litigant may not appeal from a statement of decision which does not resolve all of the issues between the parties. We have a duty to raise issues concerning our jurisdiction on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) Because such an order did not appear to be appealable, we issued an order to show cause concerning possible dismissal of the appeal. Plaintiff may not appeal from December 18, 2014 final statement of decision filed after the completion of one of two phases of a court trial. (Allen v. American Honda Motor Co. (2007) 40 Cal.4th 894, 901; In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1570-1571.) Further, the December 18, 2014 final statement of decision did not resolve all of the issues between the parties. An appeal may only be taken from a final judgment or order. (Code Civ. Proc., § 904.1, subd. (a)(1); Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697; Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.) Our Supreme Court has explained: “‘[A]n appeal cannot be taken from a judgment that fails to complete the disposition of all causes of action between the parties even if the causes of action disposed of by judgment have been ordered tried separately, or may be characterized as “separate and independent” from those remaining.’ (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743 [(Morehart)].)” (Griset v. Fair Political Practices Com., supra, 25 Cal.4th at p. 697.) Later in 2013, our Supreme Court again emphasized the importance of the final judgment rule: “In Morehart, we explained that the rule codified in this provision, known as the one final judgment rule, precludes an appeal from a judgment disposing of fewer than all the causes of action extant between the parties, even if the remaining causes of action have been severed for trial from those decided by the judgment. ‘A judgment that disposes of fewer than all of the causes of action framed by the pleadings, however, is necessarily “interlocutory” (Code Civ. Proc., § 904.1, subd. (a)), and not yet final, as to any parties 2 between whom another cause of action remains pending.’ (Morehart, supra, 7 Cal.4th at p. 741.) The theory of the rule is that ‘“piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 58, p. 113 [citations].)’ (Griset v. Fair Political Practices Com.[, supra,] 25 Cal.4th [at p.] 697)” (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1101.) The December 18, 2014 phase one statement of decision did not resolve all the issues between the parties. Named as defendants in the second amended complaint are Donald E. Cooper, also a lawyer, and the two attorneys’ former clients: Kevin Young Keen Chang; Jayne Eun Mee Chang; and Brandon Min Hyuk Chang. In addition, the second amended complaint alleges claims against three lien claimants, Margaret, Rick and Erik Jesmok. The prayer for relief in the second amended complaint seeks: an order that all defendants “interplead and litigate their claims” to a settlement draft; a declaration that plaintiff’s lien is entitled to priority over those of the Jesmoks; a declaration that plaintiff is entitled to judgment in an amount equal to or greater than his lien; imposition of an involuntary trust on all settlement proceeds; and reformation of an agreement. The December 18, 2014 final statement of decision did not resolve all of the disputes between plaintiff and Mr. Cooper. The amount of any final judgment was dependent upon the outcome of the trial’s second phase, which involves the former clients, the Changs, and the lien claimants, the Jesmoks. Moreover, as explained by Mr. Cooper, the parties are currently litigating cost issues arising from the December 18, 2014 final statement of decision. And that is because it would have been premature to resolve cost issues until the entry of a final judgment. Further, there is no reason to deem the appeal to be from a subsequently entered judgment. The opening brief filed January 20, 2016, is in material part unreadable. Pages 2-27 consist of 95 paragraphs of record citations following terse headings such “Chimera (Issue 2 only),” “Waiver,” “3-400(A) (Issue 1 only)” and “Cross-purposes.” Further, any issue concerning the correctness of rulings relating to Mr. Cooper’s codefendants as well as himself can be litigated in a single appeal. This case typifies the 3 concern expressed by our Supreme Court in both Kurwa and Griset that “‘piecemeal disposition and multiple appeals in a single action’” can be oppressive and costly. (Kurwa v. Kislinger, supra, 57 Cal.4th at p. 1101; Griset v. Fair Political Practices Com., supra, 25 Cal.4th at p. 697) We decline to exercise our discretion to increase the costs to the public and the parties by allowing for multiple separate appeals from a single judgment. Future briefs in future appeals filed by plaintiff should be readable and avoid the errors occurring in both previously filed opening briefs. The errors have been respectfully noted in this and the December 18, 2015 orders. No disrespect is intended by the court’s statements in this regard. And if the litigation does not settle, the record in the present appeal may used in subsequent appellate proceedings. (Cal. Rules of Court, rules 8.147(b), 8.155(a).) The appeal is dismissed without prejudice. All parties are to bear their own costs incurred on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS TURNER, P. J. We concur: KRIEGLER, J. KUMAR, J.* * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 4 

457 B.R. 684 (2011) Sidney R. MILLER, Appellant/Debtor v. Marilyn O. MARSHALL, Appellee/Trustee. No. 10 C 5915. United States District Court, N.D. Illinois, Eastern Division. May 24, 2011. *686 Sidney R. Miller, Chicago, IL, pro se. U.S. Bankruptcy Court, Clerk, Clerk, United States Trustee, Office of the United States Trustee, Pamela S. Hollis, United States Bankruptcy Court, Northern District of Illinois, Chicago, IL, for Appellee/Trustee. MEMORANDUM OPINION AND ORDER RONALD A. GUZMAN, District Judge. Before the Court is pro se debtor/appellant Sidney R. Miller's appeal, pursuant to 28 U.S.C. § 158(a), of the bankruptcy court's order dismissing his case for failure to file certain documents as required by 11 U.S.C. ("the Bankruptcy Code") § 521(i). For the reasons set forth below, the Court reverses the order and remands the case to the bankruptcy court. Background On June 3, 2010, Miller filed a Chapter 13 petition in the United States Bankruptcy Court for the Northern District of Illinois, case number 10-BK-25290. Pursuant to § 521(i) of the Bankruptcy Code, Miller was required to file certain documents with the bankruptcy court within forty-five days of that filing or on or before July 19, 2010. On July 19, 2010, the trustee orally moved to dismiss the case because, among other things, Miller failed to file the required documents under § 521. (See Bankr. Ct. Tr., Case No. 10-BK-25290, 1-3, July 19, 2010.) Miller objected, explaining to the bankruptcy court that he had certain documents with him that were ready to be filed, upon which the bankruptcy court told Miller to let the trustee view the documents. (Id. at 4-5.) After viewing the documents, the trustee told the bankruptcy court that Miller still did not have all the required documents, and that today "[was] the 46th day," after Miller had filed his petition. (See id. at 8.) Upon which the following conversation ensued: Miller: With all due respect, the reason that I can't produce tax returns [which Miller alleges he needed to properly complete one or more of the § 521 required documents] is because they are not in my possession. They're in the possession of the receiver in the state court when my currency exchanges were placed in receivership seven years ago. I spoke with the IRS [Internal Revenue Service] on April 26th. The IRS said that the tax returns were improperly filed under my own FEIN's [sic] [Federal Employer Identification Number]. The receiver never— Court: Stop, stop. You're rambling on about things that have nothing to do with what we've just raised. One, you *687 have to file a plan. You have to file it on time. You didn't do that. Two, once you file the plan, you have to start making plan payments. You're not doing that, okay? .... [Y]ou open up your entire world when you filed bankruptcy. So you don't get to pick and choose what you do. If you want the benefit of the proceedings, you have to follow all the rules, all right? So you have to amend, you have to get your schedules on file, you need to make your payments, you need to have a plan. I'm continuing this for one week. If you do not have all those documents on file, and I'm not necessarily giving you leave to file them late, you haven't asked for that, if you don't have everything on file, your case will be dismissed next week. .... Miller: And when you refer to those documents, you're referring [to] everything the trustee just— Court: I'm referring to everything that the rules require, many of which he [the trustee] mentioned all right? To [sic] have to follow the rules just like everybody else, okay? Miller: I always attempt to, Your Honor. Court: Well, you know, attempt to is not good enough. If you want the benefit of the proceeding, you have to do what it requires. So I'm giving you one week and a last chance to get all those documents on file. (Id. at 9-11.) A week later at a status hearing on July 26, 2010, Miller allegedly filed all the required documents: Miller: The schedules that Your Honor extended one week have been filed. I have the trustee's copy in my hand. They're all file stamped. Would you like me to tender this to the trustee? Court: Yeah, I assume they're not going to show up on the docket. Were they filed this morning? Miller: That is correct, Your Honor. Court: All right. Okay. So because they were filed this morning, we won't be able to get a chance to take a look at them, so we need to continue it. Trustee: Well, that's entirely up to Your Honor, obviously. .... Court: I said 7/26 to get documents on file. So if you want to be very technical about my order, you could have probably done it right up to the moment before the hearing. Trustee: These documents, having been filed today, are beyond the 45 days of Section 521(i). The case was automatically dismissed Tuesday. .... Court: The case is dismissed. Trustee: And I've prepared an order, if the court wanted to— Miller: Your Honor gave— Trustee: —dismissing the case and finding that the documents were not filed within the 45 days required under 521(i). Court: You understand that provision, don't you? Are you aware of that? Miller: I was aware, but your Honor issued an order at the bench last— Court: No, wait a minute, wait a minute. I did not issue any order. There's no order on the docket giving you an extension of time to file the documents. I just gave you a continuance to get done what you were supposed to get done.... So I said you need to have these problems resolved by today, you need to get things on file and have them resolved by today. But if you choose to file them after the 45 days, I don't have any ability to do *688 anything with it. The Code says the case is automatically dismissed. Trustee: Right. And there was no motion requesting an extension of time to do so. Court: And there is no order giving you an extension of time beyond the 45 days. All I did was what I always do here, if there are problems, I say I'll give you a continuance, instead of dismissing your case today, I'll give you a continuance to fix the problems. That's not the same as overriding the 45-day rule. (See Bankr. Ct. Tr., Case No. 10-BK-25290, at 1-4, July 26, 2010.) The court entered an order on July 26, 2010 stating that the case was dismissed for failure to file required documents under § 521(i) nunc pro tunc July 20, 2010, the day after the bankruptcy court granted the continuance.[1] Discussion I. Legal Standard A district court reviews a bankruptcy court's legal conclusions de novo and findings of fact for clear error. Tidwell v. Smith, 582 F.3d 767, 777 (7th Cir. 2009); see also United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ("A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."). But where a decision is left to the discretion of the bankruptcy court such decision is reviewed for an abuse of discretion. Wiese v. Cmty. Bank of Cent. Wis., 552 F.3d 584, 588 (7th Cir. 2009). Under this standard, the relevant inquiry is whether any reasonable person could agree with the bankruptcy court. In re Morris, 223 F.3d 548, 554 (7th Cir. 2000); see also Corp. Assets, Inc. v. Paloian, 368 F.3d 761, 767 (7th Cir. 2004) ("[A] court abuses its discretion when its decision is premised on an incorrect legal principle or a clearly erroneous factual finding, or when the record contains no evidence on which the court rationally could have relied."). II. Analysis 1. Mootness First, the trustee argues that Miller's appeal is moot because he has a pending Chapter 13 case in the bankruptcy court. (Appellee's Br. at 7.) Cases are moot when there is no longer a live case or controversy. See, e.g., Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528 (7th Cir. 2001). "If a case becomes moot while on appeal, this [C]ourt loses its jurisdiction to decide the merits of the action." Bd. of Educ. of Oak Park & *689 River Forest High Sch. Dist. 200 v. Nathan R., 199 F.3d 377, 380-81 (7th Cir. 2000). Although Miller may have had a pending case when the trustee filed her brief, it appears that the case has since been resolved. Although there is no official dismissal on the docket for the case, the Court takes judicial notice of the fact that no activity has taken place in the case since November 29, 2010, when the bankruptcy judge denied Miller's Chapter 13 plan. See 10-BK-34623, Order Denying Confirmation Chapter 13 Plan; see In re Miller, No. 10 C 4432, 2011 WL 940044, at *3 (N.D.Ill. Mar. 15, 2011) (finding (on another one of Miller's appeals) that Miller's appeal was not moot even though he technically had a pending bankruptcy case where his plan was denied and no other activity had taken place for a couple of months). The bankruptcy court gave Miller until November 29, 2010 to get "caught up on [his] payments" or else "confirmation is going to be denied, and then the case will be dismissed for failure to confirm a plan." (Bankr. Ct. Tr., Case No. 10-BK-34623, 6, November 15, 2010.) Therefore, since Miller no longer has an active case before the bankruptcy court, Miller's appeal is not moot. Accordingly, the Court will now address the issues raised by Miller on appeal regarding whether the bankruptcy court committed reversible error by: (1) granting the trustee's June 4 motion to dismiss; (2) dismissing the case on July 26 after granting a continuance; and (3) whether the trustee breached her fiduciary duties to the estate thereby precluding the court from ruling on the trustee's motion to dismiss. (Appellant's Br. at 1-2.) 2. Granting Untimely Motion to Dismiss First, Miller argues that the trustee's motion to dismiss was not properly before the bankruptcy court since it was filed on June 4, 2010, before the forty-five day deadline. The record indicates, however, that the bankruptcy court did not grant the June 4, 2010 motion but instead granted the Trustee's Motion for Entry of Dismissal Order, which was presented to the bankruptcy court on July 26, 2010. (Order Dismissing Case, Miller v. Marshall, No. 10-BK-25290 (Bankr.N.D.Ill. July 26, 2010), ECF No. 25.) Furthermore, even if the court's order dismissing the case had been a ruling on the June 4th motion, the court did not abuse its discretion by ruling on the motion when it did because the issues were ripe when it was ruled on. 3. Section 521(i) Dismissal Second, Miller argues that his case should not have been dismissed on July 26, 2010 because he had been granted an extension by the bankruptcy court on July 19, 2010. Pursuant to § 521(i) of the Bankruptcy Code if a Chapter 13 debtor "fails to file all of the information required under [§ 521(a)(1)] within 45 days after the date of the filing of the petition, the case shall be automatically dismissed effective on the 46th day after the date of the filing of the petition." § 521(i)(1). But "upon request of the debtor," made within 45 days after the date of the filing of the petition, "the court may allow the debtor an additional period of not to exceed 45 days to file the information required under [§ 521(a)] if the court finds justification for extending the period for the filing." § 521(i)(3). If the forty-five day period ends on a Sunday, such period is extended to the next day. Fed. R. Bankr.P. 9006. Thus, the issue before the Court is whether the bankruptcy court abused its discretion when it interpreted its July 19, 2010 order as merely a continuance and not as an extension of time for Miller to *690 file his documents. We must defer to the bankruptcy court's interpretation of its July 19 order, unless such interpretation is a clear abuse of discretion. Chiplease, Inc. & Scattered Corp. v. Steinberg, 528 F.3d 467, 476 (7th Cir. 2008). "Although this is a deferential standard, we must nonetheless conduct a `meaningful review' of the [lower] court's decision." Wilfong v. United States, 991 F.2d 359, 364 (7th Cir. 1993) (quotation omitted). The plaintiff, in effect, argues that the July 19th order would be rendered meaningless unless interpreted as an extension of the forty-five day deadline. The Court agrees. July 19th, the day of the hearing, was the forty-fifth day, and therefore the last day under § 521(i), for Miller to file certain documents with the bankruptcy court. The trustee moved for a dismissal on the basis of plaintiff's failure to comply, but rather than granting the motion, Judge Hollis gave the debtor "one week" and "a last chance" to get his documents on file or his "case would be dismissed next week." (Bankr. Ct. Tr., Case No. 10-BK-25290, 10-11, July 19, 2010.) Although Judge Hollis said she was not "necessarily giving [Miller] leave to file [the documents] late," that is the only reasonable conclusion that can be drawn from the totality of the circumstances. (Id. at 10.) Indeed, an ruling granting Miller one week as a last chance to file the documents otherwise due that same day, would be meaningless if it did not also extend leave to file the documents for that same period of time. It would be of no benefit to anyone, the court or the petitioner, to grant petitioner a week to file certain documents while allowing his case to be automatically dismissed the next day for failure to file the documents. The result would be to motivate the plaintiff to spend time and energy collecting the necessary documents but to absolutely no avail as his case would already have been automatically dismissed. As for the court, the result would be to keep a case on its docket for an extra week for absolutely no reason. Such a ruling would not only be of no benefit to any of the parties concerned, it would also be misleading to a pro se litigant. The court's language is quite clear that the one week extension was being given in order to give Miller an opportunity to avoid the automatic dismissal. The judge told Miller he had one more week to get the documents "on file" and said if he failed to do so the case "would be dismissed." (Id. at 1-4, 7-8, 10-11.) The only possible inference that can be drawn from these events is that the court had extended the filing date and the case would not be dismissed the next day by operation of the statute. This is especially true given Miller's pro se status. A pro se plaintiff, while essentially treated the same as any other litigant, is entitled to a certain amount of assistance from the court. See, e.g., Palmer v. City of Decatur, 814 F.2d 426, 428-29 (7th Cir. 1987) (holding that the court abused its discretion in dismissing the pro se plaintiff's case without first providing notice that the case would be dismissed if he did not secure counsel because it is a "well-established duty of the trial court to ensure that the claims of a pro se litigant are given a `fair and meaningful consideration.'") (quotation omitted); Schilling v. Walworth Cnty. Park & Planning Comm'n, 805 F.2d 272, 277 (7th Cir. 1986) (noting that a court should at least warn a pro se litigant of the possible consequences of any neglect especially where the result is dismissal); Camps v. C & P Tel. Co., 692 F.2d 120, 125 (D.C.Cir. 1981) (holding that the district court abused its discretion by dismissing pro se plaintiff's case for arriving late and advising the district court first to "acquaint" pro se litigants with the risks associated with tardiness). Similar to Palmer, plaintiff was given no notice by the bankruptcy *691 court that his case would be automatically dismissed the very next day if he did not file his documents.[2] Rather, the court told him that he had "one week and a last chance to get all those documents on file." (Bankr. Ct. Tr., Case No. 10-BK-25290, 11, July 19, 2010.) Under these circumstances, the bankruptcy court's order cannot be reasonably interpreted as anything but an extension. Consistent with this interpretation of the July 19 order is Judge Hollis' own actions at the status hearing on July 26. The hearing began with Miller telling the court that the documents "that Your Honor extended one week" had been filed, upon which Judge Hollis replied "ok." (Bankr. Ct. Tr., Case No. 10-BK-25290, 2, July 26, 2010). Then Judge Hollis said to the trustee "that according to the [July 19 order] Miller had until July 26 to get the documents on file" so "if you want to be very technical about my order, you could have probably done it right up to the moment before the hearing [on July 26]." (Id. at 2-3.) The trustee responded by explaining that the case had been automatically dismissed last Tuesday because the required documents had not been filed by the forty-fifth day. (Id. at 3.) July 19, the day of the previous hearing, was the last day of the forty-five day period. On that day, however, the trustee mistakenly informed the judge that it was "the 46th day." Perhaps this is where the court's confusion occurred. The mistaken representation by the Trustee and the lack of an indication on the docket that an actual extension was granted on the last court date may well have caused a judge with an extremely busy docket to mistake the posture of the case. Indeed, the judge's next comment seems premised upon a belief that the court lacked the authority to grant an extension after the expiration of the 45 day period. Miller replied that "he was aware of [§ 521(i)] but [that] Your Honor issued an order at the bench last—," but the court replied "[no] wait a minute ... there's no order on the docket giving you an extension" and that because the forty-five days had passed she "did not have the ability" do anything about it. (Id. at 3-4.) To remedy the confusion between Judge Hollis and Miller, and to avoid any unfair prejudice to Miller, this Court finds that the July 19, 2010 order was an extension, rather than as a continuance. Defendant argues that the bankruptcy court order was not an abuse of discretion because Judge Hollis had no discretion under § 521(i) to extend the forty-five day filing deadline. § 521(i)(1) (stating that the case is automatically dismissed if the documents are not filed within forty-five days). However, § 521(i)(3) provides that upon request of the debtor, a judge can grant an extension of the forty-five day deadline, which is, in essence, what happened here.[3] Conclusion Based on the foregoing analysis, the Court reverses the bankruptcy court's July 26, 2010 order dismissing the case and *692 remands the case to the bankruptcy court for further proceedings consistent with this opinion. SO ORDERED. NOTES [1] The bankruptcy court seems to have misapplied the nunc pro tunc designation in this case. As the Seventh Circuit has reiterated, a nunc pro tunc order cannot be used to "rewrite history." E.g., Cent. Laborers' Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999). Rather, a nunc pro tunc order is limited to "correct[ing] the record so that it reflects what was actually done but never recorded due to clerical inadvertence." Transamerica Ins. Co. v. South, 975 F.2d 321, 325 (7th Cir. 1992). It cannot be used to make substantive changes affecting the parties' rights. Id. Given that the court gave Miller a one-week continuance on July 19, the forty-fifth day after he filed his petition, "to get ... [his] documents on file," and dismissed the petition on July 26 because he had not filed those documents by July 19, its designation of the dismissal order nunc pro tunc July 20 substantively affected Miller's rights and as such, cannot have effect nunc pro tunc. King v. Ionization Int'l Inc., 825 F.2d 1180, 1188 (7th Cir. 1987) ("The office of a nunc pro tunc (`now for then') order is to clean up the records by showing what was previously done with effect from the time done; it is not to alter substantive rights."). Thus, the effective date of the order was July 26, 2010, not July 20, 2010. [2] Moreover, the trustee did not say anything at the July 19, 2010 hearing to correct any inadvertent confusion between Judge Hollis and pro se plaintiff Miller as to the continuance, though clearly aware that the case would be automatically dismissed by statute the next day, July 20, 2010, if Miller's documents were not filed. (Bankr. Ct. Tr., Case No. 10-BK-25290, 1-4, 8, July 19, 2010 ("In fact, today is the 46th day.").) Yet the trustee came prepared a week later, July 26, 2010, with an order for Judge Hollis to sign to effectuate the case's dismissal on the forty-sixth day. (Bankr. Ct. Tr., Case No. 10-BK-25290, 2, July 26, 2010 ("These documents, having been filed today, are beyond the 45 days of Section 521(i). The case was automatically dismissed Tuesday.").) [3] Because the Court is reversing the bankruptcy court's dismissal, it need not address the remaining arguments on appeal.

546 S.W.2d 798 (1977) Georgia H. CORDER, Appellant-Respondent, v. Nathan CORDER, Respondent-Appellant. Nos. KCD 27665, KCD 27956. Missouri Court of Appeals, Kansas City District. January 31, 1977. *800 Charlotte P. Thayer, Thayer, Gum, Ernst Y. Wickert, Grandview, for respondent-appellant. Robert W. Spangler, Robert B. Reeser, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for appellant-respondent. Before SHANGLER, P. J., and SWOFFORD and SOMERVILLE, JJ. SOMERVILLE, Judge. This is a dissolution of marriage proceeding involving cross-appeals. Neither party questions the dissolution of the marriage; however, the opposite is true with respect to all other provisions of the decree. At the very threshold of appellate review this court is faced with a basic question of decisive significance. Does jurisdiction lie in this court to entertain the cross-appeals? Although neither party has questioned this court's jurisdiction, it may not be conferred by waiver, silence, acquiescence, or consent, and it is incumbent upon this court to sua sponte inquire into and determine whether it has jurisdiction. Kansas City Power & Light Co. v. Kansas City, 426 S.W.2d 105, 107 (Mo.1968); L. F. H. v. R. L. H., 543 S.W.2d 520, handed down October 5, 1976, by the Missouri Court of Appeals, St. Louis District; and Taney County v. Addington, 296 S.W.2d 129, 129[1] (Mo.App.1956). The vexing question of whether jurisdiction lies in this court to entertain the cross-appeals emerges as follows: The family home, "Lot 91, Silver Lake, a subdivision in Cass County, Missouri", was acquired subsequent to the marriage but prior to the effective date of the Dissolution of Marriage Act (§§ 452.300, et seq., RSMo Supp. 1973), and title thereto was vested in the wife and husband as tenants by the entirety. All furnishings and furniture therein, and all other personal property not otherwise specifically mentioned, was apparently acquired subsequent to the marriage but prior to the effective date of the Dissolution of Marriage Act and treated as owned by the wife and husband as tenants by the entirety. The decree below contained, inter alia, the following provision: "That the following described real estate, to-wit: Lot 91, Silver Lake, a subdivision in Cass County, Missouri, together with all furnishings and furniture located therein and all other personal property are hereby declared to be marital property; that Petitioner and Respondent shall each own an undivided one half (½) interest therein as tenants in common." A colloquy between the trial court and counsel occurred prior to entry of the decree with respect to the real property, at which time the trial court stated: "I don't care what they do with it. They each have a half interest in it. I'm going to dissolve the marriage, leave them right where the *801 real estate law put them which is the way it should be." Notwithstanding the fact that the wife does not question this court's jurisdiction to entertain the cross-appeals, she vigorously contends, among other points relied upon, that the trial court's purported division of "marital property" lacked "finality" and did not constitute a "just" division as contemplated in and commanded by Section 452.330, RSMo Supp.1973. It is appropriate at this point to quote Section 452.330, supra, in full in order to put the jurisdictional question in proper perspective: "1. In a proceeding for nonretroactive invalidity, dissolution of the marriage or legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including: (1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (2) The value of the property set apart to each spouse: (3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and (4) The conduct of the parties during the marriage. "2. For purposes of sections 452.300 to 452.415 only, `marital property' means all property acquired by either spouse subsequent to the marriage except: (1) Property acquired by gift, bequest, devise or descent; (2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent; (3) Property acquired by a spouse after a decree of legal separation; (4) Property excluded by valid agreement of the parties; and (5) The increase in value of property acquired prior to the marriage. "3. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2. "4. The court's order as it affects distribution of marital property shall be a final order not subject to modification. "5. A certified copy of any decree of court affecting title to real estate shall forthwith be filed for record in the office of the recorder of deeds of the county and state in which the real estate is situate by the clerk of the court in which the decree was made, and the filing fees shall be taxed as costs in the cause." (Emphasis added.) The husband counters the wife's assertions that the purported division of "marital property" lacked "finality" and did not constitute a "just" division as contemplated in and commanded by Section 452.330, supra, with the following argument. Under "prior law, upon divorce, any property held in tenancy by the entirety, is converted to a tenancy in common with an undivided ½ interest in each party." He cites Allan v. Allan, 364 S.W.2d 578, 582 (Mo.1963), and Section 442.450, RSMo 1969, to support this statement with respect to the real property. Although not cited by the husband, Nye v. James, 373 S.W.2d 655, 659 (Mo.App.1963), supports the statement with respect to the personal property. As a capstone, the husband argues that any division of "marital property" under Section 452.330, supra, giving *802 either spouse any interest other or greater than an undivided one-half (½) interest as tenants in common in property which was acquired as tenants by the entirety prior to the effective date of Section 452.330, supra, "would be unconstitutional in that it would operate to divest vested rights, impair obligation of contract, and deprive persons of property without due process of law." In support thereof the husband cites various provisions of the state and federal constitutions, namely: Missouri Constitution, Art. I, §§ 10 (due process) and 13 (prohibiting the enactment of laws "impairing the obligation of contracts" or which are "retrospective" in their "operation"); and U.S. Constitution, Art. I, § 10 (prohibiting any state from passing any law "impairing the Obligation of Contracts") and Amend. XIV, § 1 (due process). At this juncture it is important to take cognizance of the true nature and thrust of the husband's constitutional argument. He does not contend that Section 452.330, supra, is unconstitutional. He does contend however that construing Section 452.330, supra, as being applicable to property acquired as tenants by the entirety prior to its effective date would be unconstitutional. See McManus v. Park, 287 Mo. 109, 229 S.W. 211 (1921). As the controversial provision of the decree purported to do nothing more than declare that the spouses each owned an undivided one-half (½) interest in the "marital property" as tenants in common, as would have occurred by operation of law prior to the effective date of Section 452.330, supra, there was no division of "marital property" (as hereafter discussed) as contemplated in and commanded by Section 452.330, supra, unless the property, by virtue of the date it was acquired, was exempt from the control and application of Section 452.330, supra, because of the constitutional grounds raised by the husband. If a division of the "marital property" as required by and envisioned in Section 452.330, supra, was not precluded on constitutional grounds, then the trial court did not exhaust its jurisdiction and the decree was not a final judgment or order and was not appealable. L. F. H. v. R. L. H., supra; Pendleton v. Pendleton, 532 S.W.2d 905, 906 (Mo.App.1976); Section 512.020, RSMo 1969; and Rules 81.01 and 81.04. As pointed out in Pendleton v. Pendleton, supra, at 906, and quoted with approval in L. F. H. v. R. L. H., supra, a trial court cannot "abdicate its jurisdiction to decide the parties' property rights. . . ." This court first turns to the husband's premise that constitutional considerations place the "marital property" in question beyond the reach of Section 452.330, supra, because of its acquisition date. It has been held in this state, as well as in other jurisdictions, that the marital relation is subject in all respects to the reasonable exercise of the state's police power. Brawner v. Brawner, 327 S.W.2d 808, 815 (Mo. banc 1959), cert. denied 361 U.S. 964, 80 S.Ct. 595, 4 L.Ed.2d 546 (1960); and Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496, 501 (1974). As cogently stated in Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed. 654, 657 (1888), "[m]arriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature . . . [and] [t]hat body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution." If Section 452.330, supra, insofar as it applies to "marital property" acquired prior to its effective date and held by a husband and wife as tenants by the entirety, reasonably furthers a valid public interest and is not otherwise palpably unreasonable or unduly discriminatory, then it is immune from the constitutional attacks launched by the husband. Brawner v. Brawner, supra, at 815; and Bellerive Investment Co. v. Kansas City, 321 Mo. 969, 981, 13 S.W.2d 628, 634 (1929). As stated in Bellerive Investment Co., supra, 13 S.W.2d *803 at 634, "[i]t has been definitely and clearly established and settled, by the decisions of this court and of the federal Supreme Court, that a statute or a municipal ordinance, which is fairly referable to the police power of the state or municipality, and which discloses upon its face, or which may be shown aliunde, to have been enacted for the protection, and in furtherance, of the peace, comfort, safety, health, morality, and general welfare of the inhabitants of the state or municipality, does not contravene or infringe the several sections of the state and federal Constitutions invoked[1] by the appellants herein, and cannot be held invalid as wrongfully depriving the appellants of any right or privilege guaranteed by the Constitution, state or federal; the reason and basis underlying such decisions being that the personal and property rights of the individual are subservient and subordinate to the general welfare of society, and of the community at large, and that a statute or ordinance which is fairly referable to the police power has for its object the `greatest good of the greatest number.'" (Citing cases.) The husband's argument that Section 452.330, supra, if applied to tenancy by the entireties property acquired prior to its effective date, would "impair obligation of contract" as prohibited by Art. I, § 10 of the Constitution of the United States, is laid to rest by Maynard v. Hill, supra. Therein it was held that the marriage relation, and reciprocal rights arising therefrom, do not come within the prohibition against state legislation impairing the obligation of contracts. The wisdom of legislation enacted in exercise of the police power is not open to judicial review—judicial review is limited to determining whether a real and substantial affinity exists between such legislation and the discernible public interest sought to be served and whether it is so palpably unreasonable or unduly discriminatory as to unjustifiably infringe upon constitutionally guaranteed rights. State ex rel. Kansas City v. Public Service Com'n., 524 S.W.2d 855, 862 (Mo. banc 1975). Public policy sought to be served by Section 452.330, supra, is multi-faceted and self-evident. Previously, the contributions of a wife regarding the accumulation of property during the marriage relation, either in the sense of direct financial contributions or in the sense of indirect contributions by virtue of her services as a homemaker, were largely ignored. Regarding property accumulated during the marriage relation and held in the husband's name alone, a wife, even though an innocent and injured party, upon severance of the marriage had only the concept of alimony (subject to termination on remarriage of the wife or the death of the husband, or future reduction occasioned by the husband's diminished financial ability), tenuous at best, to which to turn. Regarding property accumulated during marriage and held by the husband and wife as tenants by the entirety, the respective contributions of the spouses, whether direct or indirect in nature, were of no moment whatsoever, and their rights and interests in such property were regimented by operation of law. Upon termination of the marriage relation, fixing the rights and interests of a wife and husband in such property by operation of law, due to its inherent inflexibility, made it impossible to accommodate any consideration of what might be a just or fair division. If a just or fair division occurred in a given case it was a matter of sheer chance rather than a knowledgeable and responsible determination. Moreover, the division of property by operation of law was a half-way measure at best since it left the parties with a unity of possession after the marriage bond was severed, which, in many instances, continued rather than alleviated the acrimony and discord which prompted *804 scission of the marriage relation and relegated the parties to further litigation in order to sever the relationship attached to the common ownership of property. Section 452.330, supra, seeks to redress the patent inequity and rancorous aftermath heretofore attached to the division of property accumulated during the course of a marriage which now falls within the definition of "marital property". By the same token, it seeks to effectively minimize the necessity for recourse to further litigation to completely sever all relations between the parties. By so doing, the application of Section 452.330, supra, to "marital property" acquired both prior and subsequent to its effective date (regarding causes of actions within the purview of the Dissolution of Marriage Act) serves to promote the general welfare, seeks to achieve a valid public interest, constitutes a legitimate exercise of the state's police power, and is not so palpably unreasonable or unduly discriminatory as to render it vulnerable to the constitutional attacks leveled against it by the husband. Any other result, respecting "marital property" acquired prior to the effective date of Section 452.330, supra, would place one or more generations of married couples whose marriage is dissolved pursuant to the Dissolution of Marriage Act at a decided disadvantage in comparison with subsequent generations of married couples whose "marital property" is acquired after the effective date of Section 452.330, supra. To say that the legislature intended such a disparate, inequitable, and chaotic result strains credulity to the breaking point. This court is not unmindful that this case was tried during the nascency of the Dissolution of Marriage Act. The innovative nature of the Dissolution of Marriage Act, coupled with its sparsity of statutory guidance and direction, spawned understandable uncertainty at the trial level and an inordinate number of appeals. Nonetheless, the trial court had no discretion or leeway to divide or not divide the "marital property" on a "just" basis, it was inexorably commanded to do so—"the court * * shall divide the marital property in such proportions as the court deems just after considering all relevant factors" including those specifically enumerated. Section 452.330, supra. (Emphasis added.) As held in L. F. H. v. R. L. H., supra, "[b]y using the word `shall', the legislature has indicated that the trial court must specifically decree a division of the marital property upon dissolution of the marriage." When called upon to construe a statute, a court's first and foremost duty is to ascertain and give effect to the legislative intent expressed in the statute. Flarsheim v. Twenty Five Thirty Two Broadway Corp., 432 S.W.2d 245, 251 (Mo.1968); State ex rel. Lee American Freight System, Inc. v. Public Service Commission, 411 S.W.2d 190, 193 (Mo. banc 1966); St. Louis County v. State Highway Commission, 409 S.W.2d 149, 152 (Mo.1966); and In re Myers' Estate, 376 S.W.2d 219, 223 (Mo. banc 1964). Certain well established and recognized rules aid in doing so. The goal or manifest purpose sought to be achieved by a statute, in light of conditions existing at the time of its enactment, is one such rule. In re Tompkins' Estate, 341 S.W.2d 866, 872 (Mo.1960); State ex rel. M. J. Gorzik Corp. v. Mosman, 315 S.W.2d 209, 211 (Mo.1958); and Central Bank of Clayton v. State Banking Board of Missouri, 509 S.W.2d 175, 182 (Mo.App.1974). A goal or evident purpose of the Dissolution of Marriage Act was to eliminate, or in any event to minimize, many of the anachronistic vestiges which surrounded rights to property acquired during marriage in the event the marriage relation was severed. As opposed to the old order, the Dissolution of Marriage Act views the acquisition of "marital property" as a partnership endeavor, and it enunciates a standard for dividing such property which is flexible enough to weigh and balance the respective contributions of the spouses and to accommodate consideration of manifest justness and fairness. It appears that an additional goal or evident purpose was to eliminate any carryover of the animosity which brought about severance of the marriage *805 by terminating, without recourse to further litigation, all unity of possession, as well as unity of title, between the spouses when consummating a "just" division of "marital property". A division of "marital property" which stops short of severing the relationship attached to the common ownership of property "should be reserved for the unusual situation where the economics involved call for such a solution." Davis v. Davis, 544 S.W.2d 259, handed down November 20, 1976, by the Missouri Court of Appeals, Kansas City District. As pointed out in Davis, "a division which leaves the parties tenants in common in personal property susceptible to division in kind should be avoided in the interest of preventing the unnecessary extension of disputes and ill feeling. Although resort to such device with respect to real estate probably should not be absolutely precluded, again a tenancy in common solution should be reserved for the unusual situation where the economics involved call for such a solution." Section 452.330, supra, provides that all property within the definition of "marital property", whether title is held "individually" or "by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property", "shall" be divided "in such proportions as the court deems just after considering all relevant factors" including those specifically enumerated in subparagraphs (1), (2), (3), and (4) of paragraph 1 thereof. Section 452.330, supra, viewed in its contemporary context and with awareness of the patent inequities and aftermath of rancor and further litigation which it sought to rectify and eliminate, leaves no doubt that the legislature intended a division of "marital property" which would effect a complete severance of all unity of possession, as well as unity of title, between the spouses, excepting only "the unusual situation where the economics involved call for" (Davis v. Davis, supra) a division which stops short of severing the relationship attached to the common ownership of property. In those "unusual situation[s]" where a "tenancy in common solution" is resorted to for dividing either real or personal property falling within the definition of "marital property" because of the "economics involved"—the exception rather than the rule—the trial court should specifically state its reasons for doing so in its decree so that it will be apparent to an appellate court that the review is from a judgment which comports with the requirements of Section 452.330, supra, for the division of "marital property" and thus presents a final judgment ripe for appeal. The legislature, to the consternation of many members of the bench and bar, failed to statutorily specify any particular power or powers which the courts could or should employ to implement divisions of "marital property" contemplated in and commanded by Section 452.330, supra. Understandably, this may have accounted for the lack of a final judgment in the instant case. This court concludes that specificity was wisely avoided by the legislature. The relatively short history of the Dissolution of Marriage Act in this state, as gleaned from a case by case review, has already vividly demonstrated a wide diversity between the type and value of items of property comprising the whole of the "marital property" to be divided. Because of its diversified nature, it would be difficult, if not impossible, in many instances to effect a "just" division solely on an item for item basis; furthermore, the adaptability of a particular method for implementing a division of "marital property" in one case might be wholly inadaptable in another case. Fortunately, the legislature had the prescience to avoid delineating or suggesting particular "methods" or "mechanics" for apportioning "marital property" subsequent to judicial determination of what constituted a "just" division comportable with Section 452.330, supra. Otherwise, it would have incurred the risk of delineated or suggested "methods" or "mechanics" being construed or deemed as all-inclusive and, if such occurred, the paramount goal of a "just" division of "marital property" might be defeated in certain cases. The ultimate goal to be achieved in every division of "marital property" *806 is a "just" division which accords in all respects with the intent and purpose of Section 452.330, supra. Once the interests of the respective spouses in the "marital property" have been judicially determined according to Section 452.330, supra, the power to apportion to each spouse his or her share is not statutorily circumscribed by any rigid "methods" or "mechanics". The power to do so is statutorily rooted and virtually unlimited so long as it effects a division contemplated in and mandated by Section 452.330, supra. As held in Claunch v. Claunch, 525 S.W.2d 788, 791 (Mo.App. 1975), "the power given the trial court by § 452.330 (par. 1) to `divide the marital property' includes the powers necessary to render effective the power to divide." The record in the instant case fails to reveal any "economics involved" which would justify leaving either the real or personal property comprising the "marital property" vested in the parties as tenants in common. Perforce, the decree entered by the trial court did not constitute a division of "marital property" as contemplated in and mandated by Section 452.330, supra, and for that reason was not a final judgment and order, and was not appealable. Appeals dismissed. All concur. NOTES [1] In addition to other provisions of the Constitution of Missouri, 1875, appellants invoked Art. 2, § 15 (whose present counterpart, Art. I, § 13, Constitution of Missouri, 1945, is relied upon by the husband in this case) and Art. 2, § 30 (whose present counterpart, Art. I, § 10, Constitution of Missouri, 1945, is relied upon by the husband in this case); appellants also invoked Amend. XIV, § 1, of the Constitution of the United States (also relied upon by the husband in this case).

535 U.S. 1008 THOMASv.UNITED STATES. No. 01-8952. Supreme Court of the United States. April 15, 2002. 1 C. A. 5th Cir. Certiorari denied. Reported below: 31 Fed. Appx. 154.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4473 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ANTOINE JEFFREY POPE, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:05-cr- 00532-AMD) Submitted: November 30, 2006 Decided: July 5, 2007 Before WILLIAMS, Chief Judge, and GREGORY and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Flynn M. Owens, LAW OFFICES OF RUBIN & OWENS, P.A., Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Stephen M. Schenning, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following the denial of his motion to suppress a firearm discovered during the course of a traffic stop, Antoine Jeffrey Pope pled guilty to possession of a firearm by a convicted felon. He now appeals his conviction, arguing that the district court erred when it denied the suppression motion. We affirm. I At a hearing on the suppression motion, Sergeant David Long, a patrol supervisor with the Hagerstown City Police Department, testified that he was on duty in the early morning of August 31, 2005. He was advised that a residential burglary was in progress approximately one mile from where he was on patrol. The perpetrator was identified as a black male wearing dark clothing. When Long was advised of the burglary, the victim was on the phone with the 911 operator. Long testified that as he drove towards the scene of the burglary he encountered no vehicles until he spotted a sports utility vehicle (SUV) traveling with its headlights turned off. After Long saw the car, the headlights were illuminated and turned off several times. Long observed that the driver of the SUV was a black male wearing dark clothing. Long initiated a traffic stop. Pope, the driver, produced a driver’s license but was unable to produce the rental agreement for the car. Long observed that both Pope and his passenger appeared quite nervous. Two - 2 - backup officers arrived within thirty seconds of the traffic stop. When one of the backup officers began to speak to the passenger, the passenger appeared to reach for something. The backup officer opened the passenger door, grabbed the passenger’s arm, and asked him to exit the vehicle. When he did, a gun fell to the ground. The other backup officer then asked Pope if he had any weapons. Pope replied that he was sitting on a handgun. Officers took custody of that gun, which Pope subsequently moved to suppress. The district court denied the motion. The court found that, given the totality of the circumstances, a reasonable officer would have conducted the traffic stop based on a reasonable suspicion that the SUV was related to the burglary that had occurred nearby only minutes earlier. II On appeal, Pope argues that the district court erred when it found that Long had a reasonable, articulable basis to effect the traffic stop of Pope’s SUV. When evaluating the denial of a motion to suppress, we review legal conclusions de novo and factual findings for clear error. Evidence is viewed in the light most favorable to the prevailing party below. United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). The Fourth Amendment requires that a brief, investigatory stop of an individual be supported by reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. - 3 - 1, 30 (1968). The reasonable suspicion standard “is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). In deciding whether an officer had the requisite reasonable suspicion to conduct an investigatory traffic stop, courts apply an objective test rather than examining the subjective beliefs of the investigating officer. Id. “Reasonable suspicion standard is a commonsensical proposition. Courts are not remiss in crediting the practical experience of officers who observe on a daily basis what transpires on the street.” United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993). The Supreme Court has recognized that individual factors consistent with innocent travel can, when taken together, give rise to reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 9 (1989). We conclude that an officer in Sgt. Long’s position would have had an objectively reasonable suspicion that the SUV that Pope was driving was connected with the recent burglary—i.e., that criminal activity was afoot. The burglary had occurred only minutes earlier; indeed, when Long received the call, the victim was still on the telephone with the 911 operator. The offense occurred within one mile of Long’s location in a residential area where there was virtually no traffic in the early morning hours. The only car that Long saw on the road was the SUV, and that - 4 - vehicle was being operated in a suspicious manner—first without headlights, and then with its headlights being turned on and off. Finally, Pope, like the burglar, was a black man wearing dark clothing. We conclude that these factors, taken together, give rise to reasonable suspicion sufficient to justify a traffic stop under Terry. III We therefore affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 5 - 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-30345 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANKLIN DAVID MIRANDA, also known as Frankie, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CR-264-2-B -------------------- November 8, 2001 Before DAVIS, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* Franklin David Miranda challenges the sentence he received following his guilty-plea conviction for conspiracy to distribute heroin, in violation of 21 U.S.C. § 846. He argues that the district court erred by sentencing him to a five-year supervised- release term after having admonished him at rearraignment that he faced no more than four years’ supervised release. The Government concedes the error and argues that the case should be remanded for resentencing. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 01-30345 -2- Both Miranda and the Government are incorrect. The claim is not one of sentencing error but of alleged error under Fed. R. Crim. Proc. 11. Although Miranda states that he relied on the misinformation regarding the four-year maximum term of supervised release in “weighing the ramifications of pleading guilty,” at no time did he attempt to withdraw his plea or assert that it was involuntary or made without adequate knowledge. Instead, Miranda appears to assert that a Rule 11 error vitiates a subsequently imposed sentence and requires automatic remand for resentencing. There is no authority for this proposition. The district court erred in advising Miranda regarding the maximum term of supervised release he would receive, but the error does not affect the sentence imposed, only the validity of the plea itself. See, e.g., Rule 11(c) and (h). Because Miranda has not argued any error in connection with his plea but requests only resentencing, he seeks relief which is not available for a Rule 11 violation, and his claim fails. Miranda also renews his argument that he was entitled to a sentencing reduction under U.S.S.G. § 3B1.2 for playing a minimal or minor role in the offense because he was only a courier and because he was less culpable than his codefendant. He does not renew the argument that the adjustment was warranted based on the purity level of the heroin involved, and that claim is therefore waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)(arguments not briefed on appeal are deemed abandoned). The district court did not clearly err in refusing the  No. 01-30345 -3- § 3B1.2 adjustment. See United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994). Even if Miranda had served only as a courier, that alone would not entitle him to the reduction. See United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989). However, contrary to his assertions, Miranda did more than serve as a mere courier; the PSR found that he contacted the confidential informant (“CI”) to arrange payment for the drugs and was arrested with Alvarez at the site where payment was made. The district court concluded that, although his codefendant may have been more culpable than Miranda, the preponderance of the evidence showed that Miranda was aware of the full scope of the drug-trafficking activities and that Miranda was not substantially less culpable than his codefendant. See § 3B1.2, comment. (n.1 and 3). Miranda’s conclusional assertions that he only handled money and that he had never contacted the CI are not supported by any record evidence, nor has he presented any evidence to contradict the findings of the PSR. Miranda has neither alleged nor proved that he was not aware of the scope of the conspiracy or that he played a substantially less meaningful role in the offense than did his codefendant, and he has thus failed to sustain his burden of proving his mitigating role in the offense. See United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995). By his third issue, Miranda renews his challenge to the calculation of the amount of heroin attributed to him for sentencing purposes. He argues that the preponderance of the evidence did not demonstrate that there was heroin, as opposed to  No. 01-30345 -4- possibly only Benzocaine and Procaine, in each of the three baggies seized from the CI. The PSR found that each baggie seized from the CI contained heroin, as was confirmed by Agent Gill, which finding was adopted by the district court. Miranda thus has the burden of showing that the information in the PSR was materially untrue. United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992); see § 6A1.3. Miranda has not argued that the information in the PSR was materially untrue. Instead, he argues that Gill’s testimony is “suspect;” however, he provides no factual support for this speculative and conclusional allegation, and it is insufficient to make the required showing. His claim thus fails. Miranda has not demonstrated any error in the district court’s judgment. Accordingly, the judgment is AFFIRMED. 

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NAVAJO NATION, No. 13-15710 Plaintiff-Appellant, D.C. No. v. 3:11-cv-08205- PGR U.S. DEPARTMENT OF THE INTERIOR; KENNETH LEE SALAZAR, in his official capacity as Secretary of the OPINION USDOI; NATIONAL PARK SERVICE; JONATHAN B. JARVIS, in his official capacity as Director of the National Park Service; TOM O. CLARK, in his official capacity as Park Superintendent, Canyon de Chelly National Monument, Defendants-Appellees. Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, Senior District Judge, Presiding Argued and Submitted June 10, 2015—San Francisco, California Filed April 6, 2016 Before: Mary M. Schroeder, Sandra S. Ikuta, and Morgan Christen, Circuit Judges. 2 NAVAJO NATION V. USDOI Opinion by Judge Christen; Dissent by Judge Ikuta SUMMARY* Native American Graves Protection and Repatriation Act The panel reversed the district court’s dismissal of the Navajo Nation’s suit seeking an injunction ending the National Park Service’s inventory, pursuant to the Native American Graves Protection and Repatriation Act (“NAGPRA”), of human remains and funerary objects removed from the Canyon de Chelly National Monument on the Navajo Reservation; and the immediate return of the objects taken from the reservation. The panel held that the district court had jurisdiction to consider the Navajo Nation’s claims because the Park Service’s decision to inventory the remains and objects was a final agency action within the meaning of the Administrative Procedure Act. The panel also held that by deciding to undertake NAGPRA’s inventory process, the Park Service conclusively decided that it, and not the Navajo Nation, had the present right to “possession and control” of the remains and objects. 25 U.S.C. § 3003(a). The panel remanded for further proceedings. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  NAVAJO NATION V. USDOI 3 Judge Ikuta dissented because she would hold that because there was no final agency action reviewable under § 704 of the Administrative Procedure Act, the United States has not waived its sovereign immunity and the court lacks jurisdiction to hear the appeal. COUNSEL Paul Spruhan (argued), Assistant Attorney General; Harrison Tsosie, Attorney General, Navajo Nation Department of Justice, Window Rock, Arizona; Paul E. Frye and William Gregory Kelly, Frye Law Firm, Albuquerque, New Mexico, for Plaintiff-Appellant. Mary Gabrielle Sprague (argued); Robert G. Deher, Acting Assistant Attorney General; David C. Shilton; Andrew C. Mergen, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Appellees. 4 NAVAJO NATION V. USDOI OPINION CHRISTEN, Circuit Judge: The Navajo Nation appeals the district court’s dismissal of its suit seeking immediate return of human remains and associated funerary objects taken from its reservation. The Nation describes these remains and objects as “among the most sacred of [its] property” due to its deep spiritual belief that upon death humans should be placed in the earth and left there undisturbed. Between 1931 and 1990, the National Park Service removed 303 sets of human remains and associated funerary objects from Canyon de Chelly National Monument, a sacred site on the Navajo Reservation. In the mid-1990s, the Park Service decided to inventory the remains and objects pursuant to the Native American Graves Protection and Repatriation Act (NAGPRA) with the ultimate goal of repatriating the remains and objects to culturally-affiliated tribes. The Navajo Nation sued seeking, inter alia, an injunction ending the inventory process and returning the remains and objects. The Navajo Nation argued that the Park Service’s decision to inventory the remains and objects instead of returning them violated Navajo tribal treaties, various statutes, and the Fifth Amendment to the United States Constitution. The district court dismissed the suit as barred by sovereign immunity, reasoning that the Park Service had not yet taken any final agency action as to its disposition of the remains and objects. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the district court’s judgment. We hold that the district court had jurisdiction to consider the Navajo Nation’s claims because the Park Service’s decision to inventory the  NAVAJO NATION V. USDOI 5 remains and objects was a final agency action within the meaning of the Administrative Procedure Act. By deciding to undertake NAGPRA’s inventory process, the Park Service conclusively decided that it, and not the Navajo Nation, has the present right to “possession and control” of the remains and objects. 25 U.S.C. § 3003(a). We reverse the district court’s order and remand for proceedings consistent with this decision. BACKGROUND Canyon de Chelly is a spectacularly beautiful geological site consisting of over twenty miles of red sandstone walls rising hundreds of feet above the ground. See S. Rep. No. 71- 1395, at 2 (1931); Fig. 1. Figure 11 1 Places Reflecting America’s Diverse Cultures, Nat’l Park Serv., http://www.nps.gov/nr/travel/cultural_diversity/Canyon_de_Chelly_ National_Monument.html (last visited Mar. 8, 2016). 6 NAVAJO NATION V. USDOI Humans have lived in the canyon’s caves for thousands of years.2 Hopi and Pueblo Indians were the canyon’s primary occupants from roughly 750 A.D. until the 1600s.3 The Navajo began living in the canyon in significant numbers around the late 1600s. Id. Navajo live in the canyon to this day and consider Canyon de Chelly sacred ground.4 Navajo creation stories include events in the canyon, and Navajo lore maintains that key spiritual figures still reside there. See Kelli Carmean, Spider Woman Walks This Land: Traditional Cultural Properties and the Navajo Nation x, xvii–xx (2002). In 1849, the United States and the Navajo Nation signed a treaty acknowledging that the Navajo Nation was “under the exclusive jurisdiction and protection of the government of the said United States.” Treaty Between the United States of America and the Navajo Tribe of Indians, U.S.-Navajo Nation, September 9, 1849, 9 Stat. 974, 974. But in 1864 the federal government forcefully and violently removed the Navajo from their lands, including Canyon de Chelly, and relocated them to Fort Sumner, 300 miles away.5 Navajo villages and food stores were destroyed during the forced move and hundreds of Navajo died as a result of this forced 2 See Canyon de Chelly - History and Culture, Nat’l Park Serv., http://www.nps.gov/cach/learn/historyculture/index.htm (last visited Mar. 8, 2016). 3 Nat’l Park Serv., supra note 1. 4 David M. Brugge & Raymond Wilson, Administrative History: Canyon de Chelly National Monument Arizona, U.S. Dep’t of the Interior Nat’l Park Serv. (Jan. 1976), http://www.nps.gov/cach/learn/historyculture/up load/CACH_adhi.pdf 5 Nat’l Park Serv., supra note 1.  NAVAJO NATION V. USDOI 7 relocation. Kristen A. Carpenter et al., In Defense of Property, 118 Yale L.J. 1022, 1063 (2009). After four years of exile, the federal government allowed the Navajo to return to Canyon de Chelly, id., and in 1868 the United States and the Navajo Nation signed a second treaty ceasing hostilities and establishing, among other things, the boundaries of the Navajo Reservation, which include all of Canyon de Chelly. Treaty Between the United States of America and the Navajo Tribe of Indians, U.S.-Navajo Nation, June 1, 1868, 15 Stat. 667, 668. Under this treaty, the Navajo Reservation was “set apart for the exclusive use and occupation of the Indians.” Id. at 671. In 1906, Congress passed the Antiquities Act, which authorized the President to establish national monuments in order to protect historic and scientifically significant sites. See 54 U.S.C. §§ 320101–320303. It also authorized the Secretaries of the Interior, Agriculture, and War to grant permits “for the examination of ruins, the excavation of archaeological sites, and the gathering of objects of antiquity.” Id. § 320302. The Department of Interior’s regulations implementing the Antiquities Act do not treat tribal trust lands differently than other federal land and do not provide any rights to individual Indians or tribes concerning the collection or disposition of artifacts or human remains. See 43 C.F.R. §§ 3.1–3.17. All collections made under the authority of the Antiquities Act must be kept in public museums or national depositories. Id. § 3.17. In 1931, after receiving consent from the Navajo Tribal Council, the federal government created a national monument at Canyon de Chelly. 16 U.S.C. § 445. The monument encompasses Canyon de Chelly, two neighboring canyons, and lands adjacent to the canyons. Id. The act creating the 8 NAVAJO NATION V. USDOI monument (the Monument Act) specified that the Navajo Nation retained title to the lands within the monument, but it charged the federal government with the “care, maintenance, preservation and restoration of the prehistoric ruins, or other features of scientific or historical interest” in the monument. Id. §§ 445a–445b. Canyon de Chelly National Monument is the only national monument located on land not owned by the federal government.6 After the monument’s creation, the federal government removed certain human remains and associated cultural objects from the monument without the consent of the Navajo Nation. The National Park Service holds at least 303 sets of these remains and objects in its collection at the Western Archeology Conservation Center in Tucson, Arizona. In 1979, Congress passed the Archaeological Resources Protection Act (ARPA), which established permit requirements for removing archaeological resources from public and Indian lands. 16 U.S.C. § 470cc. Unlike the Antiquities Act, ARPA clearly distinguishes between “public lands” and “Indian lands” held in trust by the federal government. See id. § 470bb(3)–(4). Under ARPA, a permit authorizing excavation or removal of archaeological resources located on Indian land requires the consent of the tribe, and tribes are not required to obtain a permit to excavate or remove archaeological resources on their Indian lands. Id. § 470cc(g). ARPA’s implementing regulations provide that “[a]rchaeological resources excavated or removed from Indian lands remain the property of the Indian or Indian tribe having rights of ownership over such resources,” while “[a]rchaeological resources excavated or removed from the public lands remain the property of the 6 See Brugge & Wilson, supra note 4.  NAVAJO NATION V. USDOI 9 United States.” 43 C.F.R. § 7.13(a)–(b). ARPA requires an agency to notify Indian tribes of possible harm to or destruction of sites the tribe may consider to have religious or cultural importance. Id. § 470cc(c). Further, ARPA gives the Secretary of the Interior authority to “promulgate regulations providing for . . . the ultimate disposition” of “archaeological resources removed from public lands and Indian lands” and provides that the “ultimate disposition under such regulation of archaeological resources excavated or removed from Indian lands shall be subject to the consent of the Indian or Indian tribe which owns or has jurisdiction over such lands.” 16 U.S.C. § 470dd. It is uncontested that 297 of the 303 sets of remains and objects were removed without the Nation’s consent, but the complaint alleges that in the 1980s the Navajo Nation consented to the Park Service’s disinterment of six sets of remains from grave sites being eroded, on the condition that they be reinterred immediately.7 Instead, according to the complaint, the Park Service took the remains and added them to its collection at the Western Archeology Conservation Center in Tucson, Arizona. In 1990, Congress enacted the Native American Graves Protection and Repatriation Act (NAGPRA). See 25 U.S.C. §§ 3001–3013. Section 3003 of NAGPRA states: Each Federal agency and each museum which has possession or control over holdings or 7 The Park Service denies that it agreed to immediately reinter the remains. But in reviewing the district court’s order granting a motion to dismiss, we accept the complaint’s allegations as true. See Bill v. Brewer, 799 F.3d 1295, 1299 (9th Cir. 2015). 10 NAVAJO NATION V. USDOI collections of Native American human remains and associated funerary objects shall compile an inventory of such items and, to the extent possible based on information possessed by such museum or Federal agency, identify the geographical and cultural affiliation of such item. 25 U.S.C. § 3003(a).8 The inventory must include a description of each set of items, the geographical and cultural affiliation of the items, information regarding the acquisition and accession of the items, and a summary of the evidence used to determine the cultural affiliation of the items. 43 C.F.R. § 10.9(a), (c). “The purpose of the inventory is to facilitate repatriation by . . . establishing the cultural affiliation between these objects and present-day Indian tribes . . . .” Id. § 10.9(a). To that end, in creating the inventory, the agency must consult with any tribes likely to be geographically or culturally affiliated with the items. 25 U.S.C. § 3003(b); 43 C.F.R. § 10.9(b). The consultation process is a tribe’s opportunity to voice its reasons for seeking repatriation of the items. See 43 C.F.R. § 10.9(b)–(c). If the inventory process establishes an item’s “known lineal descendant” or “cultural affiliation” with an Indian tribe, then the agency must “expeditiously return” the item upon request. 25 U.S.C. § 3005(a)(1). Before NAGPRA’s enactment, the Secretary of the Interior did not promulgate regulations providing for the ultimate disposition of any resources excavated or removed pursuant to ARPA. See Archaeological Resources Protection 8 A separate provision governs the disposition of items excavated or discovered after NAGPRA’s enactment. See 25 U.S.C. § 3002.  NAVAJO NATION V. USDOI 11 Act of 1979; Final Uniform Regulations, 49 Fed. Reg. 1,016, 1,032 (Jan. 6, 1984). After Congress passed NAGPRA, the Secretary promulgated regulations providing that NAGPRA governs the ultimate disposition of any remains and items covered by both NAGPRA and ARPA. See 43 C.F.R. § 7.3(a)(6) (“For the disposition following lawful removal or excavations of Native American human remains and ‘cultural items’, as defined by [NAGPRA], the Federal land manager is referred to NAGPRA and its implementing regulations.”); Id. § 7.13(e) (“[T]he Federal land manager will follow the procedures required by NAGPRA and its implementing regulations for determining the disposition of Native American human remains and other ‘cultural items’, as defined by NAGPRA, that have been excavated, removed, or discovered on public lands.”). In the mid-1990s, the Park Service began the NAGPRA inventory process for the remains and objects it removed from Canyon de Chelly National Monument. As part of this process, the Park Service began consulting with the Navajo Nation and the Hopi and Zuni Pueblos.9 Shortly thereafter, in June 1996, the Navajo Nation sent a letter to the Superintendent of Canyon de Chelly National Monument asserting that it owned “all human remains and associated funerary objects within the National Monument,” and objecting to the inventory process. The Park Service replied by letter stating that it would “handle all . . . requests for repatriation in strict accordance with the NAGPRA” and 9 The Navajo did not populate the Canyon de Chelly region in significant numbers until around 1700. Before then, predecessors to the modern Hopi and Pueblo occupied the region. Nat’l Park Serv., supra note 1. 12 NAVAJO NATION V. USDOI encouraging the Navajo Nation to participate in the inventory process. The Navajo Nation participated, but it did so under protest.10 Although the record is sparse, it shows that the Navajo Nation engaged in ongoing dialogue with the Park Service regarding the Nation’s objections to the NAGPRA process and claims of ownership, and in 2007 the Park Service withdrew a draft inventory. Due to the continuing disagreement between the Park Service and the Navajo Nation, the Department of the Interior, of which the Park Service is a bureau, sought an opinion from its Office of the Solicitor. In an April 2010 email, the Park Service informed the Navajo Nation that Interior’s solicitor determined the Park Service “must comply with NAGPRA” and continue to inventory the remains and objects taken from Canyon de Chelly National Monument. In a June 2011 inventory consultation meeting between the Park Service and various tribes, the Park Service restated the determination made by Interior’s solicitor that the Park Service must “do NAGPRA on Canyon de Chelly cultural resources.” The Navajo Nation asked for a copy of the opinion, but the Park Service responded that Interior’s solicitor “did not supply an official opinion,” the opinion was “informally given,” and Interior would not issue any more opinions on the subject. The Navajo Nation sent a letter to the Park Service on August 9, 2011, stating its intent to sue if the Park Service did not cease the inventory process and immediately return the remains and objects. The Park Service responded with a letter, signed by 10 The Navajo continued to seek the immediate return of the objects consistent with their belief that exhumation “causes illness[,] . . . damages crops, natural ecosystems and the environment, and disrupts local and global weather patterns.”  NAVAJO NATION V. USDOI 13 the Superintendent of Canyon de Chelly National Monument, that cited the same opinion from Interior’s solicitor and reiterated the position that the Park Service was “required by law to complete the NAGPRA process for cultural items excavated or removed from lands within” Canyon de Chelly National Monument. By the time this letter was received, the inventory process had been ongoing for approximately fifteen years. In December 2011, the Navajo Nation sued the Park Service. The complaint alleged that the Park Sevice’s refusal to immediately return the remains and objects violated the Treaty of 1849, the Treaty of 1868, NAGPRA, ARPA, the Administrative Procedure Act (APA), and the Fifth Amendment to the United States Constitution. The district court ruled that there had been no final agency action under the APA, and it dismissed the suit as barred by sovereign immunity. The Navajo Nation appealed. STANDARD OF REVIEW This court reviews de novo a district court’s dismissal for lack of subject matter jurisdiction. Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 855 (9th Cir. 2012). DISCUSSION “The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted). The Administrative Procedure Act (APA) creates a comprehensive remedial scheme for those allegedly harmed by agency action. See 5 U.S.C. 14 NAVAJO NATION V. USDOI §§ 701–706. Section 702 of the APA waives sovereign immunity for suits alleging wrongful agency action or inaction. Id. § 702. It states: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States . . . . Id. Section 704 of the APA provides a right to judicial review of any “final agency action for which there is no other adequate remedy in a court.” Id. § 704. The Park Service argues that the district court correctly dismissed all claims for lack of jurisdiction because the Park Service has not taken final agency action as to the disposition of the remains and objects removed from Canyon de Chelly. In other words, the Park Service contends that the Navajo Nation seeks to interrupt the inventory process before the Park Service has determined which tribe is culturally affiliated with the remains and objects. The Navajo Nation counters that the Park Service’s decision that NAGPRA applies to the remains and objects was a final agency action because that decision triggered the inventory process and deprived the Navajo Nation of property rights the Nation claims to enjoy under ARPA and various treaties.  NAVAJO NATION V. USDOI 15 We hold that the decision to apply NAGPRA to the remains and objects constituted final agency action because it was the consummation of the Park Service’s decisionmaking process regarding which statutory scheme would apply to determine the Navajo Nation’s property interests in the remains and objects, and significant legal consequences flow from the decision. Accordingly, we reverse the district court’s judgment and remand for consideration of the Navajo Nation’s claims challenging the applicability of NAGPRA. In Bennett v. Spear, the Supreme Court stated two requirements for determining what constitutes a final agency action under the APA. See 520 U.S. 154, 177–78 (1997). “First, the action must mark the ‘consummation’ of the agency’s decisionmaking process . . . .” Id. (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). “[S]econd, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Id. (quoting Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). As to the first Bennett requirement, an agency’s determination of its jurisdiction is the consummation of agency decisionmaking regarding that issue. In Fairbanks North Star Borough v. U.S. Army Corps of Engineers, the Army Corps of Engineers determined that a tract of land contained “waters of the United States” requiring the landowner to receive a permit from the Corps before developing the land. 543 F.3d 586, 589–90 (9th Cir. 2008). We held that because there would be “[n]o further agency decisionmaking” as to the presence of jurisdictional wetlands on the property, the jurisdictional decision “mark[ed] the 16 NAVAJO NATION V. USDOI consummation of the agency’s decisionmaking process as to that issue.” Id. at 593. Similarly here, the Park Service’s legal determination that NAGPRA’s inventory requirements apply to the remains and objects from Canyon de Chelly “mark[ed] the consummation of the agency’s decisionmaking process as to that issue.” Id. In response to the Navajo Nation’s inquiries, the Park Service sent the Navajo Nation an email notifying it that Interior’s solicitor determined the remains and objects to be subject to NAGPRA’s inventory requirements. During an in-person meeting, a Park Service official declined to provide a copy of the informal opinion and made clear that no additional decisionmaking would be forthcoming. The Park Service refused the Navajo Nation’s request for a formal, written opinion, replying that Interior’s solicitor’s opinion was “informally given” and “[t]hat was the opinion they gave.” On August 9, 2011, the Navajo Nation sent a letter to the Park Service again requesting formal resolution of its request for return of the items. In a letter dated September 7, 2011 and signed by the Superintendent of Canyon de Chelly National Monument, the Park Service issued its final response to the demands of the Navajo Nation. This written decision cited the prior opinion from Interior’s solicitor and denied the Navajo Nation’s claim that all the remains and objects be returned to the Navajo Nation because they belonged to them by virtue of when and where the remains were excavated. This communicated that the objects collected before NAGPRA’s effective date would not be returned prior to completion of the NAGPRA inventory process, which necessarily meant that some of the remains and objects might never be returned to the Navajo Nation, that the six sets disinterred after the enactment of ARPA  NAVAJO NATION V. USDOI 17 would be subjected to the inventory process rather than being immediately reinterred, and that no further explanation would be forthcoming regarding NAGPRA’s applicability. On this record, we have no trouble concluding that the decision to follow Interior’s solicitor’s guidance and continue inventorying the remains and objects consummated the Park Service’s decisionmaking process as to the applicability of NAGPRA. The dissent argues that the first Bennett requirement is not satisfied because the Park Service is still in the process of determining cultural affiliation of the remains and objects pursuant to NAGPRA, overlooking that the Navajo Nation argues that NAGPRA’s statutory scheme does not apply to these objects at all. Contrary to the dissent’s further assertions, we do not conclude that the Park Service’s informal request to its lawyers for legal advice regarding NAGPRA’s applicability was a final agency action. Nor do we hold that delay and expense transform an interlocutory decision into final agency action. It is the agency’s decision to apply NAGPRA to these remains and objects that constituted a final agency action. The Park Service decision also meets the second Bennett requirement because the decision determined the Navajo Nation’s legal rights in the remains and objects, and legal consequences flow from the decision. A federal agency’s decision to apply NAGPRA is the agency’s legal determination of its property rights in the relevant objects. Under NAGPRA, the Park Service can only inventory the remains and objects if it has “possession or control” over them. 25 U.S.C. § 3003(a). As the district court recognized, NAGPRA’s implementing regulations specify that possession means “having physical custody . . . with a sufficient legal interest to lawfully treat the objects as part of its collection 18 NAVAJO NATION V. USDOI . . . .” 43 C.F.R. § 10.2(a)(3)(I) (emphasis added). Similarly, control means “having a legal interest . . . sufficient to lawfully permit the . . . Federal agency to treat the objects as part of its collection . . . .” Id. § 10.2(a)(3)(ii) (emphasis added). The regulations clarify that control may exist “whether or not the [objects] are in the physical custody of the . . . Federal agency.” Id. The Navajo Nation contends that because its 1868 treaty provides it with the “exclusive use and occupation” of Canyon de Chelly, it owns the remains and objects that the Park Service hopes to inventory. The Nation further argues that the creation of the monument and the adoption of ARPA reaffirm its ownership interest in the remains and objects and that the Park Service has no legal interests sufficient to trigger NAGPRA’s application. In correspondence with the Navajo Nation, the Park Service asserted that Interior’s solicitor determined that the Park Service has “legal possession AND control under NAGPRA.” Though the Park Service declined to provide a copy of the solicitor’s opinion, its decision to apply NAGPRA necessarily determined at least some of the Navajo Nation’s property rights in the remains and objects. The district court ruled that the Monument Act granted the Park Service possession and control of the remains and objects sufficient to trigger NAGPRA’s inventory process, but NAGPRA applies only if the Park Service has legal possession or control over the remains and objects. See 43 C.F.R. § 10.2(a)(3)(I)–(ii). For example, if remains and objects were loaned to the Park Service, the regulatory scheme dictates that the Park Service would have no legal right of possession for purposes of NAGPRA. See id.  NAVAJO NATION V. USDOI 19 § 10.2(a)(3)(I). It follows that the Park Service’s unexplained decision to apply NAGPRA to the remains and objects necessarily forecloses the Nation’s argument that it has complete ownership of the remains and objects pursuant to its treaty rights, and that the Monument Act and ARPA only reaffirm its ownership interest. Further, as to the six sets of remains disinterred after enactment of ARPA, the Park Service’s decision that it had a legal interest sufficient to lawfully permit it to treat the objects as part of its collection for purposes of NAGPRA denied the Nation’s claim that these sets were removed with its permission and on the condition that they be immediately reinterred. Thus, the decision to apply NAGPRA determined the Nation’s legal interests in these remains, and legal consequences flowed from the decision. Under Bennett, this decision constituted final agency action. The dissent asserts that the Park Service’s decision to apply NAGPRA did not determine any legal rights, implying that the regulatory definitions of the terms “possession” and “control” apply only to museums. Not so. By their own terms, the definitions apply to federal agencies. See 43 C.F.R. § 10.2(a)(3)(I) (explaining that “a museum or Federal agency would not be considered to have possession” of objects on loan’ (emphasis added)); id. § 10.2(a)(3)(ii) (defining control as “having a legal interest . . . sufficient to lawfully permit the museum or Federal agency to treat the objects as part of its collection” (emphasis added)). This reading is entirely consistent with the Park Service’s own interpretation of the regulations.11 11 See NAGPRA Glo ssa ry, Nat’l Park Serv., http://www.nps.gov/nagpra/TRAINING/GLOSSARY.HTM (last visited Mar. 9, 2016) (quoting 43 C.F.R. § 10.2(a)(3)(i)–(ii)). 20 NAVAJO NATION V. USDOI The definitions of possession and control appear in a subsection of the implementing regulations that address who must comply. Id. § 10.2(a). After defining “Federal agency,” “Federal agency official,” and “Museum,” the regulation defines “possession” and “control” in separate subparagraphs. Id. § 10.2(a)(1)–(3). In other paragraphs of this definitions section, where the drafters wanted a subparagraph to apply only to the term defined in the immediately preceding paragraph, the drafters so indicated with a colon. See id. § 10.2(d)(2), (f)(2), (g)(5). By contrast, the definition of “museum” concludes with a period. See id. § 10.2(a)(3). The only way to read this structure consistently with the rest of the regulation is to read “possession” and “control” to apply to “Federal agency,” “Federal agency official,” and “Museum.” See generally, Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 161–65 (2012) (“Punctuation is a permissible indicator of meaning.”). Finally, the dissent’s interpretation would read the statute as using the words “possession” and “control” to mean lawful possession and control when applied to museums but mean only physical possession and control when applied to federal agencies. Nothing in the regulatory scheme suggests this result. See id. at 170–73 (“A word or phrase is presumed to bear the same meaning throughout a text.”). The dissent also asserts that because the NAGPRA inventory process provides a method for determining ultimate ownership of remains and objects, an Indian tribe’s property interests in the remains and objects may only be determined at NAGPRA’s conclusion. We read the sequence of events in NAGPRA’s statutory scheme similarly as the dissent. But the dissent’s position assumes away the threshold question of whether NAGPRA’s statutory scheme applies in the first place. Here, the Navajo Nation asserts a superior property  NAVAJO NATION V. USDOI 21 interest in the remains and objects deriving from treaties and statutes that predate NAGPRA. We do not prejudge whether the Nation’s attacks on NAGPRA’s applicability are correct, we merely hold that the district court had jurisdiction to consider them. The dissent argues that Congress did not intend an agency to make a legal determination of possession and control as a part of the NAGPRA process. We agree. But because the Navajo Nation has challenged the invocation of the NAGPRA process, it is incumbent on the court to determine NAGPRA’s applicability. Congress was clear that NAGPRA’s inventory requirements only apply to “[e]ach Federal agency and each museum which has possession or control” over remains and objects. 25 U.S.C. § 3003(a). Section 10.2 of NAGPRA’s implementing regulations answers the question “[w]ho must comply with these regulations?” by defining “Federal agency” and the terms “possession” and “control.” 43 C.F.R. § 10.2(a). The Park Service’s threshold determination that NAGPRA applies is subject to judicial review. The dissent separately argues that the Park Service’s decision to apply NAGPRA does not satisfy the second Bennett factor because the Navajo Nation could simply choose not to participate in the NAGPRA process.12 But 12 Relatedly, the dissent argues the Navajo Nation’s claims can be vindicated at the conclusion of NAGPRA and that the Nation will be made whole if the remains and objects are eventually returned. This is only partially correct. As explained, the remains and objects are sacred and their continued disinterment is alleged to cause unique harm. Further, the regulation the dissent cites for the proposition that superior property rights can only be asserted at the conclusion of the NAGPRA process, 43 C.F.R. § 10.11(e), states that district courts may hear “any action brought that 22 NAVAJO NATION V. USDOI NAGPRA requires the Park Service to complete its inventories “in consultation with tribal government[s],” 25 U.S.C. § 3003(b)(1)(A), and to seek information from tribes, including contact information for traditional religious leaders and information about the “[k]inds of objects that the [tribe] reasonably believes to have been made exclusively for burial purposes or to contain human remains of their ancestors.” 43 C.F.R. § 10.9(b)(4)(ii)–(iii). Here, the Park Service has had several in-person meetings with tribal officials to attempt to determine cultural affiliation of the remains and objects. The dissent’s suggestion that the Nation forego the right to consultation and attack the NAGPRA process at its conclusion overlooks that by sitting on the sidelines, the Nation would miss its best opportunity to establish that the remains and objects are culturally affiliated with the Navajo if the inventory process goes forward. The dissent also overlooks the Navajo Nation’s assertion that it suffers a continuing harm as long as the remains are disinterred and not returned to their tribal lands. The Park Service argues that the Navajo Nation’s claims are unripe and that the Navajo Nation failed to exhaust administrative remedies because the NAGPRA inventory process is still ongoing, and the Park Service has not yet decided which of the remains is culturally affiliated with which tribe. But the Park Service’s argument is built on the flawed premise that the Navajo Nation asserts only that the remains should be repatriated to it pursuant to NAGPRA. In fact, the Navajo Nation claims that NAGPRA does not apply at all because the Navajo Nation, and not the Park Service, has the right to immediately possess and control the remains alleges a violation of [NAGPRA].” It says nothing about when such an action may be brought.  NAVAJO NATION V. USDOI 23 and objects. The Navajo Nation asserts that this right to immediate possession and control flows from the Navajo Nation’s treaty right to “exclusive use and occupation” of Canyon de Chelly. The Navajo Nation further asserts that both the 1931 Act creating Canyon de Chelly National Monument and ARPA confirm its right to immediate possession and control. Determining whether an agency’s decision is ripe for review “requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 (1977). Here, the Park Service’s continued possession of the remains and objects exacts a unique and significant hardship on the Navajo Nation. The Navajo believe that exhumation “causes illness[,] . . . damages crops, natural ecosystems and the environment, and disrupts local and global weather patterns.” By suing for return of the remains, the Navajo Nation seeks to end the Park Service’s longstanding “exercise [of] dominion and control over these remains and objects, among the most sacred of the Nation’s property.” The question of NAGPRA’s application is fit for review because it is a purely legal question applied to discrete facts and significant legal consequences flow from the decision. See id. Further, the Navajo Nation has exhausted all available administrative remedies for seeking review of the decision to apply NAGPRA and for obtaining possession of the remains and objects. In the fifteen years prior to filing suit, the Navajo Nation repeatedly demanded an explanation of the Secretary’s decision that NAGPRA applies, as well as return of the remains and objects. Their efforts yielded only 24 NAVAJO NATION V. USDOI correspondence reporting that Interior’s solicitor opined that NAGPRA applies to the remains and objects, and that no further opinion will be provided by the agency. Because both prongs of the Bennett test are met, we reverse the district court’s order and remand for review of the Navajo Nation’s claims challenging the applicability of NAGPRA.13 REVERSED and REMANDED. IKUTA, Circuit Judge, dissenting: Congress mandated that the National Park Service (Park Service) follow a process for identifying which tribes are entitled to receive the human remains and archeological artifacts removed from the Canyon de Chelly. That process, codified in the Native American Graves Protection and Repatriation Act (NAGPRA), provides for repatriation of human remains and associated artifacts to their known descendants. See 25 U.S.C. §§ 3001–3013. The Park Service is slowly implementing the NAGPRA process with respect to the human remains and artifacts in its possession. Its snail- like progress is in part attributable to the ongoing resistance of the Navajo Nation, which objects to Congress’s process, 13 Our decision moots the Navajo Nation’s remaining jurisdictional arguments. We need not decide whether the Park Service “unlawfully withheld” agency action within the meaning of 5 U.S.C. § 706(1). Nor do we decide whether Congress waived sovereign immunity as to non-APA claims challenging intermediate agency actions. See Gros Ventre Tribe v. United States, 469 F.3d 801, 809 (9th Cir. 2006).  NAVAJO NATION V. USDOI 25 and has filed suit against the Park Service for an immediate declaration that it owns all the human remains and artifacts that were removed from the Canyon. Although the Navajo Nation may be frustrated, a federal court cannot hear such an action unless the United States has waived its sovereign immunity under § 704 of the Administrative Procedure Act (APA),1 which makes reviewable a “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704; Maj. op. at 13–14. Despite the fact that the Park Service has not even come close to taking a final agency action, today the majority decides to take matters into its own hands. It selects virtually at random one of the many steps in the Park Service’s ongoing effort and claims it constitutes a final agency action, Maj. op. at 16–17. Because this decision is contrary to both the APA and our precedents, I dissent. I The Park Service’s slow-motion implementation of the NAGPRA process mirrors the long history of the Canyon de Chelly. The Canyon has been inhabited by humans for nearly 4,500 years and has been home to permanent settlements for about 2,000 years. Starting around 750 A.D. the Canyon became home to the ancient Pueblo, sometimes referred to as the Anasazi. The ancient Pueblo remained in the Canyon until about 1300, when they left to seek better farmlands. Their descendants, the Hopi Indians, continued to live in the Canyon until about 1600. The modern Zuni and Hopi Indians 1 Because the majority focuses on § 704 of the APA, I do not address whether the Navajo Nation could maintain its action under 5 U.S.C. § 702. 26 NAVAJO NATION V. USDOI are the descendants of the ancient Pueblo. The Navajos are relative newcomers, arriving at the Canyon around 1700. The federal government’s involvement in the collection and preservation of human remains and artifacts from the Canyon de Chelly dates back to 1906, when the Antiquities Act, 54 U.S.C. § 320302 (1906), authorized federal agencies to issue permits for the excavation and collection of archaeological artifacts so long as they were preserved in public museums. Under the authority of this act, the Park Service removed and preserved some 297 sets of human remains from the Canyon de Chelly. In 1979, the Archaeological Resources Protection Act (ARPA), 16 U.S.C. §§ 470aa–470mm (1979), added new permit requirements, and the Park Service removed an additional six sets of remains pursuant to a federal permit. In all, the Park Service removed 303 sets of remains from the Canyon before NAGPRA was enacted in 1990. The Park Service preserved all 303 sets of remains at the Western Archaeology Conservation Center in Tucson, Arizona. It was not until 1990 that Congress enacted NAGPRA, which “provides a framework for establishing ownership and control of (1) newly discovered Native American remains and funerary objects (collectively ‘cultural items’) and (2) cultural items already held by certain federally funded museums and educational institutions.” White v. Univ. of Cal., 765 F.3d 1010, 1016 (9th Cir. 2014) (citing 25 U.S.C. §§ 3001–3013); see also 43 C.F.R. § 10.1. With respect to pre-existing collections of human remains and artifacts, NAGPRA requires federal agencies and museums with “possession or control over [such] holdings or collections” to “compile an inventory” of the items and “identify the geographical and cultural affiliation of such item[s]” where possible. 25 U.S.C.  NAVAJO NATION V. USDOI 27 § 3003(a). Once the federal agency or museum has identified the cultural affiliation of the object, it must notify the affected tribes and publish a public notice in the Federal Register. Id. § 3003(d). After the cultural affiliation process is complete, Native American human remains and associated artifacts must be expeditiously repatriated to “a known lineal descendant of the Native American” or of the affected tribe, upon request of that descendant or tribe. Id. § 3005(a)(1). Other cultural artifacts may be returned to individuals or tribes that “owned or controlled” the items. Id. § 3005(a)(5). An agency may retain artifacts only if it has the “right of possession,” meaning that the items were “obtained with full knowledge and consent of the next of kin or the official governing body” of the relevant tribe. Id. §§ 3001(13), 3005(c). The regulations provide a robust dispute resolution process to address disagreements about the implementation of NAGPRA or the disposition of cultural artifacts. A federal agency’s “final denial of a request . . . for the repatriation or disposition of human remains [and cultural objects] brought under, and in compliance with [NAGPRA] constitutes a final agency action under the Administrative Procedure Act (5 U.S.C. 704).” 43 C.F.R. § 10.1(b)(3). When there are multiple requests for repatriation, and the competing claimants cannot resolve their dispute through informal negotiations, they may bring an action in district court. Id. §§ 10.10(c)(2), 10.11(e), 10.17. Further, a party claiming legal property rights to the human remains or artifacts that supersede NAGPRA can vindicate those claims in court. Id. § 10.11(e)(3). 28 NAVAJO NATION V. USDOI As mandated by NAGPRA, the Park Service started the inventory process for all 303 sets of remains in the mid- 1990s. Pursuant to § 3003(a), the Park Service began consulting with the Navajo Nation, Hopi, and Zuni regarding the cultural affiliation of the remains. 25 U.S.C. § 3003(b)(1)(A). By 1996 the Park Service had compiled a draft inventory, which it shared with the participating tribes. The draft inventory identified some of the remains as belonging to ancestral Puebloans. Under NAGPRA, such a finding would generally require the Park Service to return the remains to the Hopi and Zuni Tribes, the known lineal descendants of the Puebloans, upon their request. Id. § 3005(a). After the Park Service circulated the draft inventory, the Navajo Nation objected to the NAGPRA process and claimed that all “human remains and funerary objects” found in the Canyon de Chelly are “property of the Navajo Nation” by virtue of the Navajo’s land ownership. The Park Service stated it would respond to “any requests for repatriation in strict accordance with the NAGPRA.” This response did not satisfy the Navajo Nation. Faced with the Navajo Nation’s resistance, the Park Service put the inventory process on hold. In 2010, the Park Service asked lawyers at the Division of Parks and Wildlife and Division of Indian Affairs for advice. The Park Service’s lawyers informally confirmed that for purposes of NAGPRA, the Park Service had possession and control of the items that had been removed from the Canyon de Chelly and that these archeological resources were not exempt from NAGPRA’s repatriation procedures. Therefore, according to the lawyers, the Park Service was bound to comply with the procedure set forth in the statute and regulations. This advice was provided informally; the Park  NAVAJO NATION V. USDOI 29 Service later explained that it takes at least three years to obtain an official legal opinion. In June 2011, the Park Service informed the Navajo Nation about the informal advice of its lawyers and its intention to move forward with the NAGPRA process. Two months later, the Navajo Nation sent a formal demand letter to the Park Service and threatened to sue unless the Park Service turned over all human remains and artifacts to the Navajo Nation immediately. In its response on September 7, 2011, the Park Service stated that its position remained that it was required by law to complete the NAGPRA process. It hoped that the Navajo Nation would develop an agreement with the Hopi and Zuni Pueblo tribes so that they “would have more consistent input into the [Park Service’s] final decision” regarding repatriation of the remains. The letter also stated the Park Service’s hope that the Navajo Nation would not engage in litigation, which would cause further delays. The Park Service concluded by stating that it continued “to believe that we can work through our differences in a cooperative and collaborative manner.” The Navajo Nation then initiated this lawsuit. II A review of the applicable law makes clear that no event in the Park Service’s implementation of NAGPRA to date constituted a final agency action. To be final for purposes of § 704, an agency action must satisfy two requirements. First, the agency action “must mark the ‘consummation’ of the agency’s decisionmaking process . . . it must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) 30 NAVAJO NATION V. USDOI (internal citation omitted). Second, “the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Id. at 178 (internal quotations omitted). The elements of both Bennett prongs have been clearly delineated. For an action to “mark the consummation of the agency’s decisionmaking process” under the first Bennett prong, there must be an established “formal procedure,” Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 592–93 (9th Cir. 2008), in which the agency “evaluate[s] the merits of [the issue] to arrive at a reasoned, deliberate decision,” see ONRC Action v. Bureau of Land Management, 150 F.3d 1132, 1136 (9th Cir. 1998). A final decision must establish an official position that is “considered, definite and firm,” Fairbanks, 543 F.3d at 593, and constitutes the agency’s “last word on the matter,” Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 984 (9th Cir. 2006). A federal agency’s informal recommendation or assessment is not a final agency action. See City of San Diego v. Whitman, 242 F.3d 1097, 1101–02 (9th Cir. 2001); Aminoil U.S.A., Inc. v. Cal. State Water Res. Control Bd., 674 F.2d 1227, 1231 (9th Cir. 1982). Nor is an agency’s notice of its plans to make a decision in the future. See Gen. Atomics v. U.S. Nuclear Regulatory Comm’n, 75 F.3d 536, 540 (9th Cir. 1996); Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 263–64 (9th Cir. 1990). As a practical matter, this means that final agency decisions are virtually always written and generally published. See, e.g., Sackett v. EPA, 132 S. Ct. 1367, 1370–72 (2012) (formal, written EPA compliance order); Or. Nat. Desert Ass’n, 465 F.3d at 979–80 (written annual operating instructions, which functioned as a grazing permit, issued to Forest Service permit holders); Bennett, 520 U.S. at  NAVAJO NATION V. USDOI 31 177–78 (written Biological Opinion provided by the Fish and Wildlife Service). To satisfy the second Bennett prong, an agency’s decision must have the force and effect of law and be binding on the plaintiff. The decision must require the plaintiff to do or forbear from some action, see Fairbanks, 543 F.3d at 593, such that the plaintiff’s only choice is whether to comply with or defy a legal requirement, see FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239–40 (1980). An expression of the agency’s view regarding what the law requires is not enough, Fairbanks, 543 F.3d at 594, nor is a decision that a statute applies to an activity or individual, see Hale v. Norton, 476 F.3d 694, 697 (9th Cir. 2007) (holding that a Park Service decision that landowners were subject to permit requirements was not a final agency action under Bennett); Hecla Mining Co. v. EPA, 12 F.3d 164, 165–66 (9th Cir. 1993) (holding that the decision to include a river and mine on the lists subjecting them to permit requirements “is not the final agency action necessary to state a cause of action under § 704 of the APA”). Further, the agency’s decision must have legal and not merely practical consequences. It is well established that agency actions subjecting the plaintiff to a “greater risk of increased fines,” an “onerous administrative maze,” or further agency proceedings are not final, as these are practical effects, not legal consequences. Fairbanks, 543 F.3d at 595–96. Even an agency decision that causes immediate financial impacts or triggers profound economic consequences is not final under the second Bennett prong, as these too are merely practical effects. See id. Rather, an agency’s decision is final if it has tangible legal consequences 32 NAVAJO NATION V. USDOI or otherwise alters the legal relationship between the parties. Id. at 594. III The Park Service’s continuation of the NAGPRA inventory process meets neither of the Bennett prongs and so is not a final agency action. First, there has been no “consummation” of any decisionmaking process. The majority asserts that “the [Park Service’s] decision to apply NAGPRA to these remains and objects . . . constituted a final agency action.” Maj. op. at 17. But the Park Service decided that NAGPRA was applicable to its 303 sets of remains two decades ago, when it commenced the NAGPRA process. The Park Service’s long- ago decision to comply with NAGPRA did not mark the “consummation” of any decisionmaking process, but rather its beginning. See Hale, 476 F.3d at 697; Hecla Mining Co., 12 F.3d at 165–66 (holding that an agency’s decision to initiate regulatory proceedings does not constitute a final agency action because it is “merely preliminary”). Nor did the Park Service’s 2010 request to its lawyers for confirmation that NAGPRA applied constitute a final determination of the Park Service’s jurisdiction. The informal request occurred some 15 years after the Park Service began applying NAGPRA, and merely represented the continuation of the NAGPRA process. See ONRC Action, 150 F.3d at 1136. Indeed, if an agency is deemed to take a “final agency action” every time it asks its lawyers whether it is following the law, agencies will either be subject to challenge regarding every internal, interlocutory decision—or will have to banish government lawyers from every  NAVAJO NATION V. USDOI 33 government building. The Supreme Court rejected such a result in Bennett, holding that it was “loathe” to permit review of every procedural step taken by an agency, especially those “that had not yet resulted in a final disposition of the matter at issue.” 520 U.S. at 174. Likewise, the Park Service’s September 2011 letter to the Navajo Nation merely reiterated that “[t]he position of the [Park Service] and the advice of our solicitors . . . remains that we are required by law to complete the NAGPRA process.” (emphasis added). While the majority characterizes this letter as a “final response to the demands of the Navajo Nation,” Maj. op at 16, nothing in the letter suggests it is anything more than another response in the ongoing dialogue with the Navajo Nation. In short, no case identified by the Navajo Nation or the majority comes close to suggesting that an agency’s decision to stay the course, bolstered by informal advice from counsel, constitutes the “consummation of the agency’s decisionmaking process.”2 There is nothing in the record resembling the formal Biological Opinion at issue in Bennett, 520 U.S. at 177, or the written grazing permit addressed in ONDA, 465 F.3d at 980. There is thus no support for the majority’s claim that the Park Service’s decision to continue with the NAGPRA process after obtaining its lawyers’ advice marked the consummation of the Park Service’s 2 The Navajo Nation argues that Bonnichsen v. United States is such a case. 367 F.3d 864 (9th Cir. 2004). Its reliance is misplaced because that opinion did not address whether the decision to apply NAGPRA to remains that were possibly non-Indian was a final agency action. Rather, the issue of finality was decided by the district court and not appealed. See Bonnichsen v. U.S. Dept. of the Army, 969 F. Supp. 628, 637–38 (D. Ore. 1997). 34 NAVAJO NATION V. USDOI decisionmaking process regarding its jurisdiction. Maj. op. at 16–17. The second Bennett factor is also lacking here. The Park Service’s decision to proceed with the NAGPRA process does not impose any obligation on the Navajo Nation, and so is not “one by which rights or obligations have been determined or from which legal consequences will flow.” Bennett, 520 U.S. at 178 (internal quotation marks and punctuation omitted). The Navajo Nation is not put to the choice of compliance or defiance with any requirement, see Standard Oil, 449 U.S. at 239–40; rather, it is free to decline to participate in the inventory process. See 25 U.S.C. § 3003(b); 43 C.F.R. § 10.9(b).3 The Park Service’s decision to move forward may indeed have practical effects, in that it will delay vindication of the Navajo Nation’s alleged entitlement to the human remains and artifacts and will impose some costs if the Navajo Nation chooses to participate in the NAGPRA process. And while the Navajo Nation’s decision not to participate in the NAGPRA process may also have practical effects, see Maj. op. at 21–22, a practical burden is not a legal burden, and any additional delay and expense are insufficient to make an agency decision final even if they turn out to be quite substantial. See Standard Oil, 449 U.S. at 242 (“Although [the burden of responding to agency enforcement] certainly is substantial, it is different in kind and legal effect from the burdens attending what heretofore has been considered to be final agency action.”). 3 While NAGPRA requires that the Park Service seek to consult with tribal governments during the cultural affiliation process, see Maj. op. at 21–22; 25 U.S.C. § 3003(b)(1)(A); 43 C.F.R. § 10.9(b)(4), nothing in NAGPRA requires the Navajo Nation to cooperate.  NAVAJO NATION V. USDOI 35 The majority claims that the Park Service’s decision to continue with the NAGRPA inventory process “necessarily meant that some of the remains and objects might never be returned to the Navajo Nation,” Maj. op. at 16, and “necessarily forecloses the Nation’s argument that it has complete ownership of the remains and objects pursuant to its treaty rights,” Maj. op. at 19. The majority is simply mistaken. Once the NAGPRA process is complete, the Navajo Nation will be free to raise all the claims it brings today—including its challenges to the disposition of the human remains and artifacts, its claim that the Park Service breached an agreement to re-inter six sets of remains, see Maj. op. at 19, and its argument that it has legal property rights in the items that supersede the NAGPRA process. See 43 C.F.R. §§ 10.10(c)(2); 10.11(e).4 The majority’s theory that the Park Service made a reviewable “threshold determination” of its property rights in the remains and artifacts before applying NAGPRA, Maj. op. at 19–21, is completely backwards. Neither NAGPRA nor its implementing regulations require a federal agency to formally and finally determine whether it has “possession or control over” Native American artifacts before instituting the NAGPRA process. See 25 U.S.C. § 3003; 43 C.F.R. § 10.2. 4 The majority mischaracterizes 43 C.F.R. § 10.11(e) by claiming that it “says nothing about when such an action may be brought.” Maj. op. at 21–22 n.12. By its own terms, § 10.11 applies to disputes “regarding the disposition of culturally unidentifiable human remains and associated funerary objects,” 43 C.F.R. § 10.11(e) (emphasis added), that arise after the NAGPRA inventory process is complete, id. § 10.11(a) (“This section . . . applies to human remains previously determined to be Native American under § 10.9, but for which no lineal descendant or culturally affiliated Indian tribe or Native Hawaiian organization has been identified.”). 36 NAVAJO NATION V. USDOI To the contrary, it is a federal agency’s decision that NAGPRA is not applicable which is deemed to be a final agency action subject to review. 43 C.F.R. § 10.1(b)(3). An agency’s decision that it has the requisite possession and control of human remains and artifacts to apply NAGPRA is not final or reviewable until after the inventory process is complete. See id. §§ 10.1(b)(3), 10.10(c). Nor can we infer that Congress intended an agency to make a formal determination of its legal rights to human remains and artifacts before applying NAGPRA. Congress knew how to require a determination of ownership rights when it wanted one, as NAGPRA expressly provides guidance for determining the “ownership or control” of Native American cultural items excavated after 1990, 25 U.S.C. § 3002(a), and establishes a process for determining whether agencies or museums have a “right of possession” to objects in their collections, id. § 3005(c). Both of these determinations are made at the end of the NAGPRA process, along with all the other repatriation decisions. Nothing in NAGPRA requires the threshold determination that the majority relies on, and Congress’s omission of such a provision indicates that it did not want any such threshold determination to occur. The majority nonetheless claims that § 10.2 of the regulations requires the Park Service to ascertain whether it has a legal interest in the remains or artifacts before it starts the NAGPRA process. Maj. op. at 19–21. By its terms, however, § 10.2 merely defines the term “museum,” and provides a safe harbor for museums that have borrowed cultural items from a third party.5 The applicability of this 5 Section 10.2 answers the question “Who must comply with these regulations?” as: “federal agency,” “federal agency official,” and “museum.” 43 C.F.R. § 10.2(a)(1)–(3). “Museum” is defined as “any  NAVAJO NATION V. USDOI 37 regulation is therefore irrelevant for present purposes: only a museum’s decision that it did not have possession or control of the items in its collection would be subject to immediate legal review, id. § 10.1(b)(3), while a museum’s decision to apply NAGPRA would be reviewable only at the end of the process, see id. §§ 10.1(b)(3), 10.10(c). Here, the relevant question is who is entitled to obtain the human remains and artifacts currently in the Park Service’s hands, and that is the very question which NAGPRA is designed to answer. The Navajo Nation’s claims to the human remains and artifacts are not superior on their face to the claims of the Hopi and Zuni Tribes, and federal law requires the Park Service to proceed through a step-by-step process for making these cultural affiliation and repatriation determinations. The Navajo Nation’s desire to short-circuit institution or State or local government agency (including any institution of higher learning) that has possession of, or control over, human remains, funerary objects, sacred objects, or objects of cultural patrimony and receives Federal funds.” Id. § 10.2(a)(3) (emphasis added). In three subsections under the definition of museum, the regulations define each of the key terms in that definition: “possession,” id. § 10.2(a)(3)(i), “control,” id. § 10.2(a)(3)(ii), and “receives Federal funds,” id. § 10.2(a)(3)(iii). The definition of “possession,” as used in the definition of “museum,” is “having physical custody of human remains, funerary objects, sacred objects, or objects of cultural patrimony with a sufficient legal interest to lawfully treat the objects as part of its collection for purposes of these regulations.” Id. § 10.2(a)(3)(i). The regulation then explains that “[g]enerally, a museum or Federal agency would not be considered to have possession of human remains, funerary objects, sacred objects, or objects of cultural patrimony on loan from another individual, museum, or Federal agency.” Id. Because this language is included as part of the definition of “museum,” it provides a safe harbor for museums that do not want to engage in the expense of applying NAGPRA to items that are on loan from a third party, but would face penalties under § 10.2 if they failed to implement the NAGPRA process as required by statute. 38 NAVAJO NATION V. USDOI Congress’s plan is not sufficient to transform that ongoing process into a “final agency action.” IV In sum, the Park Service is making a good faith effort to comply with federal law, which requires it to engage in a deliberate and open process to determine who is entitled to the human remains and artifacts it currently holds. The majority’s strained attempt to detect a “final agency action” occurring at some point along the way, without a decisionmaking process, a written decision, or a determination that has any legal effect on the Navajo Nation, has no support in the record or in our precedent. Because there is no final agency action reviewable under § 704, the United States has not waived its sovereign immunity and we lack jurisdiction to hear this appeal. Accordingly, I dissent. 

895 F.2d 1468 283 U.S.App.D.C. 46 Unpublished DispositionNOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.KENTUCKY WEST VIRGINIA GAS COMPANY, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent,Columbia Gas Transmission Corporation, Intervenor. No. 88-1769. United States Court of Appeals, District of Columbia Circuit. Dec. 29, 1989. Before WALD, Chief Judge, and HARRY T. EDWARDS, and D.H. GINSBURG, Circuit Judges. JUDGMENT PER CURIAM. 1 Kentucky West petitions to review an order of the Federal Energy Regulatory Commission retroactively eliminating a minimum bill provision from the petitioner's rate filing under Sec. 4 of the Natural Gas Act. 2 The petitioner has failed to show that the Commission acted arbitrarily or capriciously in eliminating the minimum bill from its proposed rate. The petitioner is not entitled to a minimum bill as a means of guaranteeing recovery of its gathering costs, see Opinion 260-A, Transcontinental Pipe Line Corp., 40 F.E.R.C. p 61,188 (1987), (presumption that a minimum bill is anticompetitive). It has shown neither that it has incurred any take or pay liability nor that the minimum bill is the only reasonable means of avoiding exposure to such liability. Moreover, since the petitioner is now an open-access transporter under Order No. 436, its claim that a loss of business from partial requirements customers, resulting from elimination of the minimum bill, will lead to a shifting of fixed costs to full requirements customers, is speculative. 3 Because the minimum bill accompanied the petitioner's proposal to switch from the Atlantic Seaboard ratemaking methodology to the modified fixed variable methodology, however, the Commission's interim order requiring the petitioner to collect its rates under the MFV methodology without benefit of the minimum bill amounted to the imposition of a new rate for that interim period. 4 Upon review of the parties' presentations at oral argument and in their briefs, we are unable to discern the path of reasoning by which the Commission concluded that it is authorized to impose such a rate in a Sec. 4 proceeding without having made the requisite findings under Sec. 5 of the NGA. In particular, neither the Commission's order nor its arguments on appeal reveal whether, as the intervenor Columbia suggests, it invokes Sec. 16 of the NGA as authority for imposing a new rate in the interim before completion of the Sec. 5 proceeding. See FPC v. Tennessee Gas Transmission Co, 371 U.S. 145 (1962). We therefore remand this case to the Commission for further explanation of the authority under which it has proceeded in requiring Kentucky West to collect its rates under the MFV methodology in the interim before a lawful new rate is imposed. 5 At the respondent's request, in the wake of East Tennessee Natural Gas Co. v. FERC, 863 F.2d 932 (D.C.Cir.1988), we also remand to the Commission the question of the date as of which its decision eliminating the minimum bill from Kentucky West's rate schedule is to be effective. It is therefore 6 ORDERED and ADJUDGED that the case be remanded to the Federal Energy Regulatory Commission for further proceedings consistent with this order.

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE IN RE: MS2009-000010 No. 1 CA-MH 19-0011 SP FILED 12-10-2019 Appeal from the Superior Court in Maricopa County No. MS2009-000010 The Honorable Jay M. Polk, Judge AFFIRMED COUNSEL Maricopa County Legal Defender’s Office, Phoenix By Anne H. Phillips Counsel for Appellant Arizona Attorney General’s Office, Phoenix By Aubrey Joy Corcoran Counsel for Appellee State of Arizona MEMORANDUM DECISION Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.  IN RE: MS2009-000010 Decision of the Court J O N E S, Judge: ¶1 Appellant challenges the superior court’s order denying his petition for discharge from the Arizona Community Protection and Treatment Center (ACPTC) at the Arizona State Hospital (ASH). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In 2009, the superior court determined Appellant was a sexually violent person (SVP) and ordered him committed to ACPTC.1 See Ariz. Rev. Stat. (A.R.S.) §§ 36-3701(7)2 (defining SVP as a person who “[h]as ever been convicted of . . . a sexually violent offense . . . [and] [h]as a mental disorder that makes the person likely to engage in acts of sexual violence”), -3707(B) (authorizing the superior court to commit an SVP to a licensed facility supervised by ASH). In 2016, Appellant made progress toward his treatment goals and was transferred to a less restrictive program within ACPTC. See A.R.S. § 36-3710 (directing conditional release to a less restrictive alternative if it is in the SVP’s best interest and the public is adequately protected). Two years later, Appellant petitioned for absolute discharge. See A.R.S. § 36-3714(A) (authorizing discharge from treatment if the SVP’s “mental disorder has so changed that the person is not likely to engage in acts of sexual violence if discharged”). ¶3 At the December 2018 hearing, Sarah Gallimore, Psy.D., testified regarding a December 2017 report she had authored recommending Appellant remain at ACPTC. Dr. Gallimore is an Arizona- licensed clinical psychologist whose practice focuses on persons who have committed sexually violent offenses. She is familiar with Arizona’s SVP statutes and sex-offender treatment programs and has completed approximately sixty-five SVP evaluations. When evaluating the needs of an SVP, Dr. Gallimore interviews the person, reviews legal and treatment records and past diagnoses, and completes various risk-assessment tools to determine whether the person is making progress in treatment and whether the person continues to pose a danger to the public. After reviewing all the information, Dr. Gallimore attributes diagnoses, determines the person’s 1 We view the facts in the light most favorable to upholding the superior court’s ruling. In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14 (App. 2009) (citing In re MH 94-00592, 182 Ariz. 440, 443 (App. 1995)). 2 Absent material changes from the relevant date, we cite the current version of rules and statutes. 2  IN RE: MS2009-000010 Decision of the Court level of risk, and makes a recommendation about the need for continued treatment. ¶4 Based upon Appellant’s self-reports, a review of his history, and her prior experience evaluating him for a 2015 report, Dr. Gallimore testified that Appellant was diagnosed with antisocial personality disorder and exhibitionist disorder immediately before he was found to be an SVP and committed to ACPTC in 2009. She then determined Appellant continued to experience these disorders, and others, in 2017. The antisocial personality disorder, characterized by aggressiveness and a lack of empathy, was of particular concern, which, when combined with more recently identified narcissistic personality and paraphilic disorders,3 left Appellant “at high risk for committing another sexually violent offense.” Dr. Gallimore’s evaluation was consistent with three separate actuarial risk assessment tools that employ different combinations of static, dynamic, objective, and subjective factors — the Static-99R, the Static-2002R, and the SVR-20 — each of which placed Appellant at a “well above average risk” of committing a new sexual offense within five years with a rate of recidivism several times greater than the average individual convicted of a sexually motivated offense. Accordingly, Dr. Gallimore opined that absolute discharge would not be in Appellant’s best interest or adequately protect the community. ¶5 Brian Abbott, Ph.D., testified on Appellant’s behalf, criticizing Dr. Gallimore’s use, administration, and interpretation of the SVR-20. He also pointed out that the version of the SVR-20 Dr. Gallimore administered to Appellant was outdated, having been replaced three months before her evaluation of Appellant. Dr. Abbott did not personally evaluate Appellant but testified, based upon his review of Dr. Gallimore’s report, that the State had failed to prove that Appellant’s continued commitment at ACPTC was warranted. Dr. Abbott nonetheless agreed that current evidence of impulsivity and lack of remorse could demonstrate a person suffered from antisocial personality disorder, and that these behaviors, in conjunction with paraphilic conditions, could cause someone to have serious difficulty controlling sexually violent behavior. 3 Paraphilia is the “expression of the sexual instinct in practices which are socially prohibited or unacceptable, or biologically undesirable.” Dorland’s Illustrated Medical Dictionary 1135 (25th ed. 1974). 3  IN RE: MS2009-000010 Decision of the Court ¶6 After taking the matter under advisement, the superior court denied the petition for discharge. Appellant timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(10)(a). DISCUSSION ¶7 At a hearing on an SVP’s petition for discharge from treatment, “[t]he attorney for the state has the burden of proving beyond a reasonable doubt that the petitioner’s mental disorder has not changed and that the petitioner remains a danger to others and is likely to engage in acts of sexual violence if discharged.” A.R.S. §§ 36-3709(A), (C), -3714(A). Here, the superior court found “beyond a reasonable doubt that: (a) [Appellant]’s mental disorder has not changed; (b) [Appellant] remains a danger to others; and (c) [Appellant] is likely[] to engage in acts of sexual violence if he is unconditionally discharged.” Appellant argues the evidence is insufficient to sustain these findings in support of continued commitment at ACPTC. We disagree. ¶8 We will not set aside the findings supporting an order for involuntary civil commitment “unless they are clearly erroneous.” MH 2008-001188, 221 Ariz. at 179, ¶ 14 (citing MH 94-00592, 182 Ariz. at 443). “A finding of fact is not clearly erroneous if substantial evidence supports it, even if substantial conflicting evidence exists.” Ramsey v. Ariz. Registrar of Contractors, 241 Ariz. 102, 109, ¶ 22 (App. 2016) (quoting Kocher v. Dep’t of Revenue of Ariz., 206 Ariz. 480, 482, ¶ 9 (App. 2003)). Substantial evidence is such proof that a reasonable person could accept as adequate and sufficient to support the facts beyond a reasonable doubt. See State v. Coulter, 236 Ariz. 270, 275, ¶ 12 (App. 2014) (quoting State v. Gunches, 225 Ariz. 22, 25, ¶ 14 (2010)). ¶9 Appellant argues perceived deficiencies in Dr. Gallimore’s analysis render her conclusions invalid. He does not challenge her general competency to testify. See generally A.R.S. § 36-3701(2) (defining “competent professional” for purposes of Arizona’s SVP statutes); Ariz. R. Evid. 702 (governing the general admissibility of expert testimony). Therefore, her testimony “should be tested by the adversary process — competing expert testimony and active cross-examination — rather than excluded from [the fact-finder’s] scrutiny for fear that [it] will not grasp its complexities or satisfactorily weigh its inadequacies.” State v. Bernstein, 237 Ariz. 226, 229, ¶ 18 (2015) (quoting State v. Langill, 945 A.2d 1, 11 (N.H. 2008)); see also State ex rel. Montgomery v. Miller, 234 Ariz. 289, 298, ¶ 20 (App. 2014) (“[C]ross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate 4  IN RE: MS2009-000010 Decision of the Court means of attacking shaky but admissible expert evidence.”) (citing Ariz. R. Evid. 702, and quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3rd Cir. 1999)). ¶10 Dr. Gallimore testified at length regarding her experience and qualifications to render an opinion, the information she received from Appellant over the course of several interviews, and the materials she reviewed and tests she administered before reaching her conclusions regarding Appellant’s mental health and propensity to reoffend. See supra ¶¶ 3-4. Although Appellant offered contrary testimony from his own expert and effectively cross-examined Dr. Gallimore on the details of her methodology and analysis, the superior court nonetheless found Dr. Gallimore’s opinions sufficiently reliable and compelling to meet the State’s burden of proof. See Tyree v. Indus. Comm’n, 159 Ariz. 92, 95 (App. 1988) (“We must presume that the judge considered . . . all relevant evidence of record.”) (citing Perry v. Indus. Comm’n, 112 Ariz. 397, 398 (1975)). We will not reweigh evidence or second-guess credibility determinations on appeal because “judging the credibility of witnesses and resolving conflicts in testimony are uniquely the province of the trial court.” In re David H., 192 Ariz. 459, 461, ¶ 8 (App. 1998); see also In re General Adjudication of All Rights to Use Water in Gila River Sys. & Source, 198 Ariz. 330, 340, ¶ 25 (2000) (citing Pouser v. Pouser (Estate of Pouser), 193 Ariz. 574, 579, ¶ 13 (1999)). ¶11 The record contains sufficient evidence upon which the superior court could find, beyond a reasonable doubt, that Appellant’s continued placement at ACPTC was warranted. We find no error. CONCLUSION ¶12 The superior court’s order denying Appellant’s petition for discharge is affirmed. AMY M. WOOD • Clerk of the Court FILED: AA 5 

85 F.3d 628 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.John DOE, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee. No. 95-5567. United States Court of Appeals, Sixth Circuit. May 10, 1996. Before: JONES, BOGGS, and BATCHELDER, Circuit Judges. PER CURIAM. 1 Doe pled guilty to engaging in a continuing criminal enterprise to distribute narcotics, in violation of 21 U.S.C. § 848. On July 18, 1990, the district court sentenced him to twenty years in prison, the mandatory minimum under that newly amended statute for a person with no prior narcotics conviction. Doe did not appeal. On August 12, 1991, he filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Doe alleges that the government breached the plea agreement, that the plea agreement was coerced by improper threats to prosecute his father, and that his lawyer was constitutionally ineffective. The district court denied Doe's motion. We affirm. 2 * The government charged Doe with ninety-three counts of various crimes, as part of a multi-defendant indictment on August 16, 1989. Doe's lawyer, Trant, also represented six co-defendants. At arraignment on September 7, 1989, the magistrate judge warned Doe about the hazards of joint representation. The magistrate judge itemized potential conflicts and concluded: 3 [I]f you were convicted and if the case went up on appeal and at some point in time you decided that, hey, this was a mistake, I shouldn't have been represented by this one law firm, this one attorney, the court of appeals may say, yes, that probably was a mistake, but you waived any objection; because, on the morning of September the 7th, 1989, Judge Murrian held a hearing and you stood before him and said that you voluntarily waive or give up your right to have separate counsel and you agree to have joint or dual representation. 4 Doe told the court that he understood his rights, but nevertheless wished to share counsel with his codefendants. 5 Trant met with Doe in early February 1990, to discuss a plea. In a hearing before the magistrate judge, Doe testified that Trant pressured him during this meeting to plead guilty to the continuing criminal enterprise ("CCE") charge. Doe testified that Trant told him that the government would prosecute his elderly father unless Doe pled guilty.1 Except for Doe's testimony, there is no other evidence in the record that the government threatened to prosecute his father. However, the United States Attorney did admit to having conversations "regarding" Doe's father during preliminary plea negotiations. The magistrate judge found that the government told Trant, and Trant told Doe, that the government might investigate the father's role. At least seven different witnesses heard Trant say, shortly after his meetings with Doe and the government, that Doe had decided to plead guilty to protect his father. Report and Recommendation at 11-14. 6 Doe pled guilty to the CCE count on February 5, 1990. At that time, he stated to the court: 7 THE COURT: Has any person, including any officer or agent of the government, put any pressure on you mentally or physically to force you to plead guilty? 8 [DEFENDANT]: No, sir. 9 THE COURT: Does your plea of guilty to these charges result solely from the fact that you are guilty? 10 [DEFENDANT]: Yes, sir. 11 Doe now claims that he made this representation to the court only because Mr. Trant told him that his father would be arrested if Doe told the court of the government's threat. 12 Doe also testified that, during the same meeting, Trant told him that he would not receive more than ten years in prison. Trant denies that he made such a promise. Trant testified that he told Doe that he probably faced a twenty-year sentence, but that the government might decrease it to as little as ten years if Doe rendered substantial assistance. 13 Under the terms of the plea agreement between Doe and the government, the government dismissed ninety-two other counts. Several paragraphs of the plea agreement are relevant to Doe's current appeal. 14 3. The defendant further agrees to cooperate fully, truthfully and completely with any and all law enforcement agents including but not limited to personnel of the United States Attorney's Office. This cooperation includes, but is not limited to, meeting with such law enforcement agents or United States Attorney's personnel whenever requested. The defendant further agrees not to protect anyone who was truly involved and not to falsely implicate anyone who was not truly involved. 15 4. The defendant understands and acknowledges that his agreement to cooperate fully, truthfully and completely is an integral part of this agreement and that upon his failing to do so the United States will be free to withdraw from this plea agreement. 16 7. At the time of sentencing the United States agrees to bring to the court's attention the nature, extent, and value of the defendant's cooperation. This information will be provided to the Court so that it may be considered in determining a fair and appropriate sentence under the facts of the case. 17 12. In the event the defendant renders substantial assistance as determined by the United States Attorney and subject to the provisions of Rule 35, Federal Rules of Criminal Procedure, the United States will move for a downward departure from the Sentencing [G]uidelines range. 18 Between his plea and sentencing, Doe met at least three times with the FBI. On each occasion he supplied them with information about drug violations, including photo identifications of alleged violators. According to the government and Trant, Doe told the government on each of these occasions that, although he would supply information, he would not testify against anyone. Doe, on the other hand, says that he only told the FBI that he would not testify against his co-defendants. Appellant's Brief at 11. Doe contends that the government did not need his testimony, anyway. Doe claims that he would have been willing to testify against other drug violators, but the government chose not to use the valuable information that he volunteered. 19 Before the sentencing hearing, the district judge, the Assistant United States Attorney responsible for the case, and Trant and his co-counsel Cunningham, met in the judge's chambers to discuss the extent of Doe's cooperation. A transcript of the meeting was not made. The Assistant United States Attorney, Trant, and Cunningham all testified that the judge was informed of the extent of Doe's cooperation--including Doe's refusal to testify against his codefendants and a number of other people whom he had identified as drug dealers. Doe, who was not there, alleges that the government portrayed his cooperation in a biased way. After the meeting, the government did not move for a departure below the applicable guideline range. At sentencing, Trant did not object to the failure to request a downward departure, or argue that this failure was a breach of the plea agreement. Doe was sentenced to the mandatory minimum: twenty years. 20 After sentencing, Doe has continued to provide limited assistance to law enforcement officials. In September 1990, he supplied thirteen pages of information about drug activity, and represented that he would "both take a polygraph examination regarding it and would testify regarding it." Doe refused, however, to wear a wire on a fellow inmate without a firm ex ante guarantee that his sentence would be reduced. At no point did the government move for a post-sentencing reduction of Doe's sentence for substantial assistance. See Fed.R.Crim.P. 35. 21 Doe filed his § 2255 motion on August 12, 1991. The district court referred the case to a magistrate judge who held an evidentiary hearing on February 22, 1994. Doe's motion alleged that (i) the government breached its plea agreement by not requesting a downward departure; (ii) the plea was involuntary because of the government's threats and Trant's misinformation; and (iii) Trant was constitutionally ineffective. The magistrate judge analyzed each of these claims in a lengthy report. The report stated that the government's failure to request a downward departure could only be policed for constitutionally impermissible motives, such as racial discrimination, under Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). It found that Doe's plea was indeed voluntary, and that the government did not make an improper threat to prosecute Doe's father. It found that Trant's representation was well within the bounds of acceptable behavior--specifically finding that Trant told the court of the extent of Doe's cooperation during the meeting before the sentencing hearing. Finally, it found that Trant was not constitutionally ineffective when he chose not to argue that the government breached the plea agreement. The report concluded with a recommendation that Doe's motion be denied. 22 Doe filed timely objections to the magistrate judge's report. The district court adopted the magistrate judge's report and recommendation, dismissing Doe's § 2255 motion. Doe filed a timely notice of appeal. II 23 A § 2255 motion requires the petitioner to show a fundamental defect in the proceedings that inherently results in a complete miscarriage of justice or an error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, --- U.S. ----, ----, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994); United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.) (per curiam), cert. denied, --- U.S. ----, 113 S.Ct. 2424 (1993); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990). When we review a district court's disposition of a § 2255 motion, we consider de novo any legal conclusion. We accept a fact found by the district court, absent clear error. White v. Smith, 984 F.2d 163, 165 (6th Cir.1993). 24 Doe claims that the government breached the plea agreement by failing to recommend a downward departure. Generally, we do not review the government's failure to recommend a downward departure absent a claim that the prosecution intended to punish the defendant for membership in a protected group or for the exercise of a constitutional right. Wade, 504 U.S. at 185-86, 112 S.Ct. at 1843-44; United States v. Johnson, 46 F.3d 19, 21 (6th Cir.1995); United States v. Bagnoli, 7 F.3d 90, 92 (6th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 95 (1994). Beyond that restriction, the decision is left to the discretion of the government. Ibid. Cf. Futernick v. Sumpter Township, No. 94-1902 (6th Cir. March 1, 1996) (selective enforcement claim requires allegation of intent to punish for group membership or exercise of a constitutional right). The magistrate judge followed this approach in resolving Doe's motion and dismissed it because Doe failed to allege a constitutionally impermissible motive. 25 However, Wade is not controlling when the government signs a plea agreement in which it promises to consider a downward departure. Instead, the government is bound by the terms of the plea agreement. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). If clear terms in the agreement reserve absolute discretion, then the plea agreement itself may incorporate the default rule of Wade. See, e.g., Johnson, 46 F.3d at 20 (agreement that the decision is "solely within the government's discretion"); United States v. Epley, 52 F.3d 571, 580 (6th Cir.1995) (agreement that "[t]he United States retains the complete discretion"). Otherwise, the government is bound to perform any promise--including the promise to consider a departure upon substantial assistance--in good faith. See United States v. White, 71 F.3d 920, 925 (D.C.Cir.1995) (plea agreement with substantial assistance provision requires government to determine substantial assistance in good faith--resulting in more protection than defendant would have under Wade ); United States v. Leonard, 50 F.3d 1152, 1157-58 (2d Cir.1995) (when plea agreement has substantial assistance provision, court may hold an evidentiary hearing to determine whether government acted in bad faith in refusing to make downward departure). 26 The plea agreement in this case says that the government will decide if substantial assistance has been rendered. 27 In the event the defendant renders substantial assistance as determined by the United States Attorney ... the United States will move for a downward departure.... 28 This language is not sufficient to erase the general presumption that a party to a contract will behave in good faith. The magistrate judge therefore erred when he examined the government's failure to request a downward departure only under Wade, rather than also inquiring whether Doe could prove bad faith. 29 The magistrate judge's error, however, does not warrant remand. The district court, in adopting the magistrate judge's report, found that the government did not recommend a downward departure "because of [Doe's] refusal to testify." Memorandum and Order, April 7, 1995, at 2. The court's finding of fact, unless we hold that it is clearly erroneous, offers a legitimate justification for the government's action and precludes a finding of bad faith. See Sullivan v. United States, 11 F.3d 573, 575 (6th Cir.1993) (no bad faith where government's stated reasons for refusing to depart downward are "rational and acceptable"). 30 Reviewing the court's finding of fact for clear error, we hold that it is adequately supported by the record. The government alleges that Doe refused to testify against people whom he identified. The government also alleges that it warned Doe that he would not get a downward departure unless he reconsidered his obstinate position. Doe testifies to the contrary, but the district court was entitled to believe the government if it found the government more credible. Doe's other evidence of bad faith, troublesome in nature, was found irrelevant by the magistrate judge and by the district court.2 III 31 Doe also claims that his plea was involuntary because the government threatened to prosecute his father. The Supreme Court has specifically reserved judgment on the voluntariness of a plea entered in exchange for a promise by the government not to prosecute a third party. Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, 668 n. 8, 54 L.Ed.2d 6094 (1978). Other circuits have held that such a deal is permissible if the government had probable cause to prosecute the third person, but impermissible otherwise. United States v. Pollard, 959 F.2d 1011, 1021 (D.C.Cir.), cert. denied, 506 U.S. 915, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992); Miles v. Dorsey, 61 F.3d 1459, 1468 (10th Cir.1995) (requiring "good faith" ability to prosecute third party); Politte v. United States, 852 F.2d 924, 930 (7th Cir.1988); LoConte v. Dugger, 847 F.2d 745, 752-53 (11th Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988). We believe that this approach is correct. Cf. Bordenkircher, 434 U.S. at 357, 98 S.Ct. at 663 (prosecutor can threaten to add extra counts to a defendant's own indictment at plea negotiations, provided that there is probable cause for those extra counts). 32 The government denies making a specific threat to prosecute Doe's father.3 The Assistant United States Attorney responsible for Doe's case, Dedrick, did have a conversation regarding Doe's father with Trant. But Dedrick testifies that he told Trant that there was not sufficient evidence to warrant prosecution of Doe's father at that time. Faced with conflicting testimony, the magistrate judge stated: 33 Petitioner and his witnesses testified that petitioner pleaded guilty because of a threat to his father. However, the undersigned finds the testimony of petitioner's attorneys and the prosecutor, and the testimony of the petitioner himself at his guilty plea hearing, to be more credible. Clearly petitioner was concerned for his father and he may have believed that his own guilty plea might avert further investigation into his father's role. That, however, is insufficient to set aside petitioner's guilty plea. 34 Report and Recommendation at 26. 35 Given the facts found by the magistrate judge, the resolution of the issue is correct. When the question of the involvement of Doe's father arose, Dedrick was not required to state unequivocally that there would never be an investigation. His only obligation was to be truthful. Dedrick was aware of evidence that the father delivered money for Doe, although he did not know if the father knew that the money was used to purchase drugs. There is no legal principle that prevents Dedrick from relaying this information to Trant. Nor is there evidence in the record that Dedrick lied about Doe's father's situation. IV 36 Doe makes two other claims that we should address briefly. First, Doe argues that Trant's advice to him before he entered his plea was constitutionally ineffective. The district court adopted the magistrate judge's finding that Trant's statements to Doe during the critical meeting--that his father might be investigated and that he might get a downward departure--were appropriately conditional. Furthermore, for a federal court to vacate the plea, Doe must show that, but for Trant's misstatements, "he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). The evidence of Doe's guilt was, in the words of Trant, "probably as overwhelming as any I've seen," and the record contains no indication that Doe would have risked trial. Therefore, the court's refusal to vacate Doe's plea was correct. 37 Second, Doe claims that his plea should be vacated because of his attorney's conflict of interest. Doe waived that claim repeatedly in open court, and absent unusual circumstances cannot bring it before this court now. United States v. Straughter, 950 F.2d 1223, 1233 (6th Cir.1991), cert. denied, 112 U.S. 1238 (1992). Furthermore, Doe does not allege a specific conflict of interest. Kirby v. Dutton, 831 F.2d 1280, 1282 (6th Cir.1987). He was the first of the seven jointly represented defendants to plead--and there is no evidence in the record that the other defendants benefited significantly by his decision. The exercise of the (limited) constitutional right to chose joint counsel, see Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988), is not itself prejudicial. Kirby, 831 F.2d at 1282. V 38 The judgment of the district court denying Doe's motion to vacate is therefore AFFIRMED. 1 Doe's father is seventy-six years old and sometimes moved money for Doe. Doe says that his father had no knowledge that Doe used the money to purchase drugs 2 Doe's girlfriend decided to testify for the government in the conspiracy proceedings. The government moved her to an FBI safehouse for government witnesses. There, she and one of the FBI investigators began having an affair. The affair lasted from summer to fall of 1989. The same agent was involved in Doe's case, present at the sentencing hearing, and responsible for organizing Doe's post-sentencing cooperation. The affair is disturbing, but not adequate evidence of bad faith. It ended four months before Doe was sentenced, and almost a year before the majority of Doe's post-sentence cooperation. There is no evidence in the record that the FBI agent mischaracterized the extent of Doe's cooperation 3 The government does not brief this issue on appeal, and we rely on their pleadings below

703 F.Supp.2d 296 (2010) COMPAGNIA IMPORTAZIONI ESPORTAZIONI RAPPRESENTANZE, Plaintiff, v. L-3 COMMUNICATIONS CORPORTION d/b/a L-3 Communications Corporation, Ocean Systems Division, Defendant. No. 06 Civ. 3157(NRB). United States District Court, S.D. New York. March 10, 2010. *298 Anthony J. Marchetta, Esq., Jeffrey Mannis, Esq., Day Pitney LLP, New York, NY, for Plaintiff. Alan Gelb, Esq., Eugene P. Hanson, Esq., Jones, Hirsch, Connors & Bull, New York, NY, for Defendants. MEMORANDUM AND ORDER NAOMI RE ICE BUCHWALD, District Judge. Plaintiff Compagnia Importazioni Esportazioni Rappresentanze ("plaintiff' or "CIER") brought this suit against L-3 Communications Corporation d/b/a L-3 Communications Corporation, Ocean Systems Division ("defendant" or "L-30S"), alleging claims for declaratory relief, breach of contract, fraudulent concealment, breach of the duty of good faith and fair dealing, quantum meruit, promissory estoppel, and for an accounting, arising out of L-30S's alleged failure to pay CIER commissions earned pursuant to an International Representative Agreement signed in 2002. In an Order dated July 31, 2007, 2007 WL 2244062, this Court dismissed all but the breach of contract and declaratory judgment claims. Presently before the Court are the parties' cross-motions for summary judgment. FACTS[1] I. Background Plaintiff CIER is an Italian company that provides services including consulting, technical advising, and sales assistance for advanced military sonar equipment suppliers within Italy and the broader European defense market. CIER Statement of Undisputed Material Facts ("CIER SOF") ¶ 1. CIER markets itself based on its extensive contacts within the Italian military and defense market, through which it promotes and sells the products of clients. See CIER SOF ¶ 19. Defendant L-30S, a Delaware company and former client of CIER, is the current owner of the Ocean Systems ("OS") business. First Amended Complaint, ¶ 3. CIER has served as the sales representative for the OS business since it was owned by Bendix, dating from at least 1983. L-30S Statement of Undisputed Material Facts ("L-3 SOF") ¶ 3. These business dealings have involved a range of products over time.[2] By October 1985, Allied Signal *299 had acquired the OS business, becoming Allied Signal Ocean Systems (ASOS). ASOS continued the relationship with CIER. L-3 Communications Corporation's Memorandum of Law on Cross-Motions for Summary Judgment ("L-3 Mem."), 14; L-3 SOF ¶ 41; CIER Opp. ¶ 41. In March 1998 L-3 acquired the assets of the OS business from Allied Signal. L-3 Mem., 16. The resulting company, L-30S, is the defendant here. The OS business is the developer and producer of Helicopter Long Range Active Sonar ("HELRAS"). L-3 SOF ¶¶ 14-18. HELRAS is a dipping sonar system that is lowered from a helicopter into the ocean. The system transmits and receives signals that detect submarine targets. L-3 SOF ¶ 16; CIER SOF ¶ 4. In the late 1970s, ASOS demonstrated HELRAS successfully for the Italian Navy in an effort to promote sales in Italy. 30S SOF ¶¶ 18, 20. Subsequently, the Italian Navy became interested in pursuing production of a fleet of EH-101 helicopters with HELRAS dipping sonar technology. L-3 SOF ¶¶ 19, 20. Between October 1985 and the period of time at issue here, CIER was engaged by L-30S and its predecessors to promote the HELRAS program under a series of Service and Consulting Agreements. L-3 SOF ¶ 3; CIER Opp. ¶ 3. Between 1985 and 1995, ASOS and CIER entered into a series of these agreements designed to compensate CIER for work promoting HELRAS to the Italian Navy, whereby CIER was paid $20,000 per quarter. L-3 SOF ¶¶ 35-37, 41. The Service Agreements were designed to compensate CIER for its role as the "eyes and ears" of ASOS in Italy and for its promotion of HELRAS. L-3 SOF ¶ 40. This mechanism of compensation was used because HELRAS was still in the developmental stage, so there were no products for CIER to sell on commission. Thus, while the Representative Agreements compensated CIER for sales made of various other products, the Service Agreements allowed CIER to be compensated for its work on HELRAS during the early stages of that program. L-3 SOF ¶¶ 46, 47. During this period, CIER and L-30S first worked to promote HELRAS as the official selection by the Italian Navy for its EH-101 helicopters. CIER SOF ¶ 20. While they succeeded in convincing the Italians as to the value of the product, interest throughout the industry shifted from the EH-101 series of Italian helicopters to a smaller H-90 helicopter being developed under the auspices of NATO as part of a joint four nation program. L-3 SOF ¶ 21; CIER SOF ¶ 25. The four nation program was called the NATO Helicopter Management Agency ("NAHEMA") and included representation from France, Germany, Italy, and the Netherlands. 3 SOF ¶ 21; CIER SOF ¶ 27. The structure of the program was such that NAHMA designated a joint venture called NH Industries S.A.S. ("NHI") as the principal contractor for the program. NHI was composed of one contractor from each of the four representative countries. NHI was tasked with the design and production of the NH-90 helicopter program, a portion of which were to be equipped with long-range dipping sonar devices. The Italian representative to the joint venture, Agusta, was selected to lead the design and production of the platform technology for the helicopter's sonar system. CIER SOF ¶ 30; L-3 Opp. ¶ 30. HELRAS was one type of such dipping sonar, and thus CIER was retained by *300 ASOS to promote the selection of HELRAS for incorporation into this program. There were several obstacles to the fulfillment of this goal, however, including that (1) the HELRAS design was at the time too large to be used effectively on the NH-90 helicopters, and (2) the NAHEMA program required that the sonar equipment be purchased from a manufacturer within one of the four participant countries. L-3 SOF ¶ 22. In an effort to comply with the nationality requirements of the program, ASOS bought German manufacturing company ELAC Nautik Gmbh ("ELAC"), and CIER helped broker a joint venture between ASOS and Finmeccanica, an Italian manufacturing company. Id. ¶¶ 23, 24, 32. As negotiations continued, Finmeccanica became the prime contractor for the venture's NH-90 bid, leaving ASOS as a subcontractor receiving only a portion of the business from the contract bid. Id. ¶¶ 24, 30; CIER SOF ¶ 49. The bid was eventually made with FIAR S.p.A., a subsidiary of Finmeccanica (which later became Galileo Avionica S.p.A. ["Galileo"]), ELAC, and a Dutch company called Fokker. L-3 SOF ¶ 25; CIER SOF ¶ 49; see also Certification of Anthony J. Marchetta ("Marchetta Cert."), Exh. 16 (Manufacturing License and Technical Assistance Agreement between Allied Signal Inc. and FIAR, dated Nov. 18, 1996). Under the July 1, 1995 Service Agreement, CIER's fee was increased to $50,000 per quarter due to the increased effort on their part to arrange the bid and procure the subcontract. L-3 SOF ¶¶ 42, 62. In early November 1996, Agusta selected a different sonar producer for the NH-90 program. CIER SOF ¶ 32; L-3 SOF ¶ 53. This was obviously disappointing to ASOS. Thereafter the Italian Navy,[3] ASOS, and CIER began a campaign to reverse Agusta's decision. L-3 SOF ¶ 54. There is some dispute as to exactly how that campaign transpired, but no one contests that CIER played a role in the efforts and that the decision was reversed in early 1998, when Agusta selected the bid led by Finmeccanica and including ELAC to supply the dipping sonar. L-3 SOF ¶¶ 54-58; CIER Opp. ¶¶ 54-58. L-3 purchased the OS business from ASOS in March of 1998, becoming L-30S. CIER SOF ¶ 84; L-3 Mem., 14. By the end of 1999, the NH-90 program was in development but L-30S had not been awarded a production sub-supply contract yet. L-3 SOF ¶¶ 59-62. HELRAS was thus still not bringing funds into L-30S that could be used to compensate CIER on a commission bases. L-3 SOF ¶ 64. From October 1999 through the award of that sub-supply contract, discussed below, CIER's service and consulting relationship continued through Consulting Agreements between CIER and 30S. L-3 SOF ¶ 62. There were also two Representative Agreements signed with varying provisions as to the specified products covered.[4]See, e.g. Affidavit of Alan *301 M. Gelb ("Gelb Aff."), Exh. 70 (signed by CIER on Sept. 14, 1999). The most recent agreements are discussed below. II. The contracts between L-30S and CIER at issue here. At issue here are the International Representative Agreement ("Representative Agreement") and the International Consulting Agreement ("Consulting Agreement"), both signed on April 1, 2002. Gelb Aff. Exhs. 26 (Representative Agreement), 65 (Consulting Agreement). The "Duties" section of the Representative Agreement is identical to the "Duties" section of the Consulting Agreement though they reference appendices with differently defined terms. See Gelb Aff., Exh. 26, App. A (covering products and services "for end use in the 4-Nation NH-90 Helicopter Program," defining the Territory as Italy, and stating the term to be two years from date of final execution or earlier termination); Gelb Aff. Exh. 65, App. A (referencing Exh. A for definition of services as set out below). In keeping with prior consulting agreements, the 2002 Consulting Agreement provided for a $50,000 fee payable quarterly for services performed in "[p]romotion and consulting for continued acquisition maintenance of NH-90 Design and Development Contract effort to ensure maximum follow-on production among the nations involved in the 4-Nation NH-90 Helicopter Program." Gelb Aff. Exh. 65, App. A, Exh. A. As in past agreements, CIER's payments were to be made following approval by L-30S of CIER's submissions regarding services rendered. By its terms, the 2002 Consulting Agreement expired upon the award of the Sub-Supply Contract to L-30S. CIER SOF ¶ 103. The 2002 Representative Agreement provided that the products and services it covered included "L-30S products and services related to the 4-nation NH-90 Helicopter Program and services sold in connection with other NH-90 Helicopter programs for non-Italian end use." Gelb Aff. Exh. 26, App. B, ¶ 2. In the "Compensation for Services" section, the Representative Agreement provided that: Company [L-30S], either as a prime contractor or a subcontractor, agrees to pay to Representative [CIER] a commission as set forth in the applicable Appendix B, attached hereto, on the sale of the Products and Services for use in the Territory [Italy], provided that Representative has fulfilled its duties as set forth in Article 1 above in connection with such sale. For purposes of determining whether Representative is entitled to a commission, the determination whether Representative has fulfilled its duties in connection with such sale shall be within the sole judgment and discretion of Company which shall not be exercised in an unreasonable manner ... Said commission will be paid in U.S. Dollars and ... each such commission payment shall be based on the Net Sales Price (as defined in Appendix B) on payments received from customer and shall be paid within sixty (60) days of receipt and acceptance by Company (as specified in Appendix B) of a proper original invoice and supporting document. Gelb Aff. Exh. 26, ¶ 4 (emphasis added). Appendix B of the agreement defined how compensation would be payable: Subject to the requirements of Article 4 of this Agreement in which this Appendix B is incorporated, a commission for direct commercial sales, based on the *302 Net Sales Price of Products and Services..., will be payable as follows: 1. Five percent (5%) on the products/programs coverage identified in Paragraph 2(a) and 2(b) preceding [including the NH-90 program] that are sold in the Territory as a result of services performed and pursuant to the terms and conditions of this Agreement. id. at App. B, ¶ 3(A) (emphasis added). The contract goes on to define "net sales price" as "the U.S. dollar value of any contract order entered into between Company and a customer in the Territory [Italy] for the Products and Services...." Id. at App. B, ¶ 3(C) (emphasis added). The Representative Agreement was to remain in effect for two years from the date of execution, but was extended through July 31, 2004. L-3 SOF ¶ 203. The Representative Agreement was not renewed thereafter. CIER SOF ¶ 115. III. The contract awarded during the effective period of the 2002 Representative Agreement. On December 21, 2002, Galileo Avionica (the success or of Finmeccanica) awarded the production sub-supply contract to ELAC, L-30S's subsidiary. See Gelb Aff. Exh. 37 (Contract Between Galileo Avionica and ELAC Nautik GmbH for the Production Investment, Production and Product Support Phases of the Dipping Sonar Subsystem/LRU's Set/Materials Kit [Equipment] for the NH90 Programme, signed December 21, 2002 (the "Sub-Supply Contract")); see also L-3 SOF ¶ 96. Through this agreement, Galileo contracted with ELAC for the latter to supply the sonar systems contemplated by the original contract between NAHEMA and NHI ("the Main Contract").[5] CIER SOF ¶ 57; Gelb Aff. Exh. 37, Art. 3.1. The Sub-Supply Contract provided that: The Buyer [Galileo] is hereby committed to buy from the Supplier [ELAC] a minimum quantity of Equipment composed by 5 (five) DSS, 5 (five) Materials KIT and 55 (fifty five) LRU's SET. To fulfill this commitment the Buyer shall place multiple Purchase Orders in accordance with the following conditions: • The first Purchase Order shall be placed by the Buyer for the supply of 5 (five) DSS, 5 (five) Materials KIT and 15 (fifteen) LRU's SET, to be delivered in accordance with Annex D "Master Plan" and shall include the relevant PI activities. • Each subsequent Purchase Order(s) shall be consequent to the Agusta S.P.A. Purchase Order(s) to the Buyer, and shall be placed in such a way that the continuity of production is guaranteed to the Supplier. This means that any subsequent Purchase Order(s) shall be placed by Agusta to the Buyer (and consequently by the Buyer to the Supplier) at least 18 (eighteen) months before the delivery date of the last Equipment under the previous Purchase Order and the related delivery dates shall be in accordance with Annex K(SOR). *303 In the event that the Buyer will not fulfill the above obligations, the Supplier shall have the right to apply the provisions stated in Art. 5.3 or to terminate the Contract as per article 37. Gelb Aff. Exh. 37, Art. 4.1(emphasis added). Article 37 of the agreement provides for termination as a remedy for Galileo's failure to fulfill the "obligations" under the agreement or upon certain other events. Id. at Art. 37. Article 5.3 provides for the price term of the products as well as the right to renegotiate if Buyer fails to fulfill its obligations under Article 4.1. Id. at Art. 5.3. As contemplated by Article 4.1 of the Sub-Supply Agreement, Galileo issued Purchase Order No. 4541002913, dated December 20, 2002. CIER SOF ¶ 58. This purchase order requested delivery of 20 units of equipment: "5-DSS, 5-Kits, and 15-LRUs."[6] L-3 SOF ¶ 96; CIER SOF ¶ 58. This is the only purchase order that has been issued to date. CIER SOF ¶ 66; L-3 SOF ¶ 103. CIER maintains that since that contract was signed, L-30S has received, at least, $22,227,290.23 from Galileo for deliveries and milestones made under the first purchase order. CIER SOF ¶ 77. To date, L-30S has paid CIER one commission under the Representative Agreement based on the advanced payment received from Galileo for certain milestones as set out in the Sub-Supply Contract. CIER SOF ¶ 126. IV. The business relationship since the award of the Sub-Supply Contract. The business relationship between L-30S and CIER had begun to deteriorate by the end of 2002 and eroded further throughout 2003.[7] While the 2002 Representative Agreement was extended from March 31, 2004 to July 31, 2004, it was not renewed further. L-3 SOF ¶¶ 203, 204; CIER Opp. ¶¶ 203, 204. L-30S acknowledges that commissions were owed and paid on certain milestone payments received by L-30S prior to the Representative Agreement's expiration. L-3 SOF ¶¶ 133, 134. However, L-30S now maintains that no commissions are owed to CIER on payments received after the agreement's expiration, which CIER disputes. Both sides acknowledge that all invoices for payments received prior to the expiration of the contract have been paid by L-30S.[8] L-3 SOF ¶ 219, CIER Opp. ¶ 219. *304 Since the expiration of the Representative Agreement, continuous delays in the production schedule of the NH-90 helicopter program have resulted in disruptions to the delivery schedule under the Sub-Supply Contract and thus the HELRAS production process. In November 2006, L-30S stopped work on the sonar units and did not resume until March 2008. L-30S ¶ 230. The second purchase order, which was to be issued by October 2007 under the Sub-Supply Contract, has not yet been issued. In a document dated April 11, 2008, Galileo and L-30S executed Amendment 1 to the Sub-Supply Contract, including renegotiated terms[9] for the delivery schedule of the items under the first purchase order and extended delivery through June 2011. Gelb Aff. Exhs. 55, 56; CIER SOF ¶¶ 81, 82; L-3 SOF ¶¶ 234-236. The amended contract does not include dates for delivery beyond the remaining deliveries under the first purchase order, though, as CIER points out, the original language regarding the minimum deliverables under Sub-Supply Contract Article 4.1 also appears in the amended contract. L-3 SOF ¶ 238; CIER Opp. ¶ 238. While the expectation under the amendment is still that future purchase orders will be made, further deliveries are have not yet been ordered. L-3 SOF ¶ 243; CIER Opp. ¶ 243. DISCUSSION CIER now seeks relief on two counts. First, CIER seeks a declaratory judgment defining its right to collect commissions on any future deliveries made as part of the "minimum quantity" contemplated by the Galileo Sub-Supply Contract. Second, CIER alleges that defendant breached the 2002 Representative Agreement when it failed to pay CIER a commission on the payments it received from Galileo for deliveries of sonar equipment pursuant to the Sub-Supply Contract. Defendant disputes any claim of entitlement to post-expiration commissions under the Representative Agreement. To address either claim, we must determine what rights and obligations regarding post-expiration commissions accrue under the Representative Agreement. For the reasons set out below, and subject to certain qualifications, we find that CIER is entitled to a judgment declaring that L-30S is obligated to pay CIER commissions under the Representative Agreement for payments it receives under the Sub-Supply Contract, even though such payments are made after the expiration of the Representative Agreement. We also find that if Galileo has made payments to L-30S either before or since the expiration of the Representative Agreement for which commissions have not been paid, CIER is entitled to recover those commissions under Count II. I. The Summary Judgment Standard This matter is now before the court on the parties' cross motions for summary judgment. Summary judgment is appropriate only if "there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." Beth Israel Med. Ctr. v. Horizon Blue Cross and Blue Shield of N.J., Inc., 448 *305 F.3d 573, 579 (2d Cir.2006) (quoting D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998)) (internal quotation marks omitted); see also Fed.R.Civ.P. 56(c). Summary judgment should not be granted unless "no rational finder of fact could find in favor of the non-moving party." Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 134 (2d Cir.2000). The mere existence, however, of an alleged factual dispute between the parties will not defeat a motion for summary judgment because "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). In order to defeat such a motion, the nonmoving party must affirmatively set forth facts showing that there is a genuine issue for trial. Id. at 256, 106 S.Ct. 2505. An issue is "genuine ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505 (internal quotation omitted); see C.R. Bard, Inc. v. Advanced Cardiovascular Systems, Inc., 911 F.2d 670, 672-73 (Fed.Cir.1990). To raise a genuine issue, a non-moving party may not "rely on mere speculation or conjecture as to the true nature of the facts." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987); see also Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.1995). "`Mere conclusory allegations or denials' in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980) (citation omitted). Rather, the non-moving party must produce specific facts sufficient to establish the existence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Lipton, 71 F.3d at 464. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (citations omitted). II. Contract Interpretation CIER claims that it is entitled to commissions on payments received by L-30S under the Sub-Supply Contract, even after the expiration of their contractual relationship with L-30S. Plaintiff bases this claim on the 2002 Representative Agreement's compensation provisions. See Gelb Aff. Exh. 26, App. B (2002 Representative Agreement). The threshold issue for a court in any contract dispute is to determine whether the language of a contract is unambiguous. In interpreting contractual agreements, the "fundamental objective" of the court "is to determine the intent of the contracting parties `as derived from the language employed in the contract.'" Consolidated Edison, Inc. v. Northeast Utilities, 426 F.3d 524, 527 (2d Cir.2005) (citing Abiele Contracting v. N.Y. City Sch. Constr. Auth., 91 N.Y.2d 1, 9, 666 N.Y.S.2d 970, 689 N.E.2d 864 (1997)). "Where the contract is clear and unambiguous on its face, the courts must determine the intent of the parties from within the four corners of the instrument." Id. (quoting Meccico v. Meccico, 76 N.Y.2d 822, 824, 559 N.Y.S.2d 974, 559 N.E.2d 668 (1990)). However, where a contract is ambiguous, "extrinsic evidence may be considered `to ascertain the correct and intended meaning of a term' or terms." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 178-79 (2d Cir. 2004) (quoting Alexander & Alexander Services, Inc. v. These Certain Underwriters *306 at Lloyd's, London, England, 136 F.3d 82, 86 (2d Cir.1998)). Further, "[a]scertaining whether or not a writing is ambiguous is a question of law for the trial court." Morse/Diesel, Inc. v. Trinity Industries, Inc., et al., 67 F.3d 435, 443 (2d Cir.1995) (quoting Sayers v. Rochester Telephone Corp. Supplemental Mgmt. Pension Plan, 7 F.3d 1091 (2d Cir.1993)). "Under New York law Contract language is ambiguous if it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.'" Id. However, if the words of the contract convey a definite and precise meaning where there is no reasonable basis for a difference in opinion, summary judgment may be granted. Seiden Associates, Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992). Arguments made by the parties that include differing meanings for a provision do not necessarily mean a provision is ambiguous. Id. III. Contracts at Issue Here A. The 2002 Representative Agreement Plaintiff contends that the 2002 Representative Agreement provided for commissions on all sales related to the NH-90 program made during the effective period of the contract, including the Sub-Supply Contract. Defendant makes several arguments to the contrary, maintaining that plaintiff is not entitled to any commissions after the expiration of the Representative Agreement in 2004. Specifically, defendant argues that: (1) the Sub-Supply Contract was signed under the contemporaneous Consulting Agreement, rather than the Representative Agreement, so no commissions ever accrued under the Representative Agreement; (2) even if the Sub-Supply Contract was procured under the Representative Agreement, CIER had uncompleted continuing responsibilities after the order was placed so no commissions were earned prior to the expiration of the Representative Agreement; and (3) the course of dealings between L-30S and CIER demonstrates that historically no payments were made in the absence of an effective agreement. Defendant also argues that the Sub-Supply Contract is not a binding commitment to purchase any specific quantity of equipment and therefore can not serve as the basis for a claim to commissions after the Representative Agreement had expired. We will address the first three arguments regarding the Representative Agreement then address the Sub-Supply Contract. 1. The provision for commissions on all sales related to the NH-90 program is unambiguous. Defendant argues that the intention of the parties was for CIER's work in obtaining the Sub-Supply Contract to be compensated by the quarterly payments made under the International Consulting Agreement signed on the same day as the Representative Agreement, rather than through commissions under the Representative Agreement. This argument is advanced despite the facts that: (1) the Representative Agreement was clearly in force at the time of the signing of the Sub-Supply Contract on December 21, 2002;[10]*307 (2) the Representative Agreement clearly states that the products and services upon which compensation will be awarded include "[a]ll L-30S products and services related to the 4-nation NH-90 Helicopter Program," Gelb Aff. Exh. 26, App. B, ¶ 2(b), which is especially salient given that the parties clearly contemplated (and were actively seeking) the procurement of the Sub-Supply Agreement at the time of the Representative Agreement's signing on April 1, 2002; (3) the Sub-Supply Contract is clearly a sale of NH-90 products;[11] and (4) defendant offers no explanation of why there was a Representative Agreement with such terms in addition to the Consulting Agreement if it was not intended to cover commissions on these products. Accordingly, we reject defendant's position that the Representative Agreement did not provide for commissions on the Sub-Supply Contract, which explicitly included compensation for the sale of products relating to the NH-90 program.[12] 2. The commission accrual and payment provisions of the Representative Agreement are unambiguous. Defendant argues that, under the terms of the Representative Agreement, CIER was required to complete certain continuing duties until delivery before it could be considered to have earned its commission. Based on that reading, L-30S argues that no commissions are owed under the Sub-Supply Contract's commitment because no deliveries had been made before the Representative Agreement had expired. Further, defendant asserts that plaintiff is not entitled to any post-expiration commissions, based on New York's Entis line of cases. Defendant interprets this case law as holding that where a sales representative has a continuing role in procuring sales from its customer, commissions are not payable after the representative's employment contract has expired. See L-3 Mem. Point II(E). However, defendant misreads this line of case law, which actually stands for the proposition that the contract between the parties governs when the commissions are earned and therefore whether they are to be paid even after the expiration or termination of the contract. See Yale Security, Inc. v. Freedman Sales, Ltd., No. 97-1424, 1998 WL 690944 (7th Cir.1998) (finding that "the key [to the holding of Entis] was which party's interpretation of the contract was reasonable"); In re Hudson Feather & Down Products, Inc., 22 B.R. 247 (E.D.N.Y.1982) (citing Entis for proposition that "[t]he right of a sales agent after his employment has been terminated to continue receiving commissions on accounts he has solicited depends upon the nature of the agreement between the parties."); see also World Wide Communications, Inc. v. Rozar, et al., No. 96 Civ. 1056(MBM) (NRB), 1997 WL 795750, *11 (S.D.N.Y.) (finding that the court is required to give effect to the parties' intentions *308 in entering the agreement as derived from the language employed) (citing Reefer and General Shipping Co., Inc. v. Great White Fleet, Ltd., 922 F.Supp. 935, 940 (S.D.N.Y.1996), aff'd mem., 107 F.3d 4 (2d Cir.1997)). If the sales representative is found to have a contractual obligation requiring the completion of continuing duties prior to the earning of such a commission, this line of cases holds that the termination of the commission agreement prior to the completion of such duties terminates the right to earn commissions. Thus no commissions would be due after the relationship has ended. However, if the triggering event for the earning of commissions has occurred prior to termination, the commissions are payable after termination.[13] We turn now to the terms of the Representative Agreement at issue here. The relevant contract language addressing when commissions are earned states that commissions are earned "on the sale" of the relevant product, Gelb Aff. Exh. 37, ¶ 4(A), to be paid "based on the Net Sales Price ... on payments received" where Net Sales Price is defined as the "U.S. dollar value of any contract order." Id. at ¶ 4(B), App. B, ¶ 3(C). Further, the Representative Agreement states that commissions are payable at five percent of the net sales price of products "that are sold." Id. at App. B, ¶ 3(A). Thus the contract clearly provides that the commissions are earned upon sale. Though there is additional language providing that L-30S must confirm that CIER complied with its duties under the Representative Agreement in making the sale,[14] the operative *309 time for evaluation is clearly the "sale." Thus, while no deliveries had been made when the Representative Agreement expired, the commissions on the sales made in the Sub-Supply Contract had already accrued based on Galileo's commitment to buy the equipment from L-30S in the Sub-Supply Agreement. This, however, does not end our analysis. While the 2002 Representative Agreement unambiguously provides that commissions are earned at the time of sale, the amount of the commissions is "based on Net Sales Price ... on payments received from customer and shall be paid within sixty (60) days of receipt and acceptance by Company (as specified in Appendix B) of a proper invoice and supporting document." Id. at ¶ 4. The fact that the commissions are not payable until L-30S receives payment from Galileo does not change the result as to when commissions are earned by CIER, although it does condition the payment to CIER of any commissions earned on the receipt of payment by L-30S from Galileo. Thus, CIER is currently owed commissions on payments that L-30S has received under the Sub-Supply Contract and will be owed commissions on future payments made by Galileo as they are received by L-30S.[15] At bottom, this reading not only accords with the language of the agreement, but it is also the reasonable construction of the Agreement because it accommodates for the inevitable gap between the placement of an order and the completion of the sonar equipment's production. If read otherwise, the contract would be inequitable for one of the parties—either in that CIER could be deprived of compensation for its sales efforts by L-30S's unilateral decision not to renew the agreement or in that L-30S might be forced to pay commissions immediately upon receipt of the order despite the long production phase prior to their own receipt of payment.[16] 3. The course of dealings between the parties is not inconsistent with our reading of the Representative Agreement. As discussed above, where contract language is unambiguous, the court looks no further than the four corners of the document to determine the intention of the parties. Consolidated Edison, Inc., 426 F.3d at 527; see also R/S Associates v. New York Job Development Auth., 98 N.Y.2d 29, 32, 744 N.Y.S.2d 358, 771 N.E.2d 240 (2002) ("when parties set down their agreement in a clear, complete document, their writing should as a rule be *310 enforced according to its terms'") (quoting Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 198, 738 N.Y.S.2d 658, 764 N.E.2d 958 (2001)). Thus, for the reasons discussed supra, we need not go beyond the text to make our ruling. Nonetheless we note that, contrary to defendant's arguments, the course of dealings between the parties is not contrary to the language of the Representative Agreement. In this regard, defendant argues that: (1) the two parties here have a long history of contractual relationships and 30S's long-standing policy of "No Agreement, No Payment"[17] shows that that they did not intend to pay post-termination commissions; (2) CIER had previously signed a disclaimer letter indicating its awareness that it had no authority to act outside of a signed agreement; (3) payment to CIER had always been contingent on a determination of whether CIER's services were satisfactory and thus their determination that payment is unwarranted now must stand; and (4) prior Representative Agreements specifically used language prohibiting payment for deliveries "more than one year after ... termination or cancellation," thus the absence of such language precludes the payment of post-expiration commissions on the 2002 Representative Agreement. L-3 SOF ¶ 189; Gelb Aff. Exh. 22, 5(F)(2) (Sales Representation Agreement signed Nov. 3, 1997). CIER counters that, first, the alleged policy was not in fact adhered to during the course of dealing between the parties in that L-30S allowed the backdating of agreements to create the appearance of continuity. See CIER Opp. ¶ 189. Further, we note that such an internal corporate policy does not provide legal cover for L-30S to avoid liability under a contract it agreed to be bound by. Second, CIER correctly points out that the disclaimer letter was specific to a prior contract and is not applicable to the current conflict. See Gelb Aff. Exh. 40 (Letter from Victor M. Riehl of August 9, 2001, acknowledged by Roberto Bolla). Regardless, both of these arguments miss the mark because, contrary to fact, they assume that there was no governing contract in place when the commissions were earned. Defendant's arguments in the third category are completely unavailing in that they have in fact already paid a commission to CIER after payment was received from Galileo under the Sub-Supply Contract, so to the extent the measuring date is the sale, 30S has already found that CIER's efforts in producing the sale were adequate.[18] L-30S's *311 final point is that, in light of its "No Agreement, No Payment" policy, and given the absence in the governing agreement of a specific authorization for one year of post-termination commissions as had been included in a prior contract, such posttermination payments would not have been authorized. L-3 SOF ¶ 189. However, as CIER points out, such language in prior agreements does not necessarily support L-30S's argument concerning the operative agreement. See id. If anything the omission of the language in the 2002 Representative Agreement can as easily lead to the opposite conclusion: that there is no limitation on post-termination commissions absent contractual language to that effect because when the parties wanted to include a one-year limitation on post-termination payments they knew how to do so. Whether viewed singularly or in combination, the course of dealings arguments advanced by defendant do not undermine the unambiguous reading of the contract language, which is also the most reasonable. B. The Sub-Supply Contract Plaintiff claims that they are entitled to commissions on all sixty units contemplated by the Sub-Supply Contract, only twenty of which have been ordered by Galileo at this time. Defendant argues that (1) the claim of a "binding commitment" by Galileo to purchase all sixty units is not supported by the contract language in that agreement, and that (2) no binding contract is even formed until the condition precedent to formation occurs, namely that Agusta issues a purchase order to Galileo, and Galileo consequently issues a purchase order to L-30S. Defendant further argues that the "dual level of conditions precedent" required before a contract is formed means that the contract that is formed once those conditions are met is not embodied in the Sub-Supply Contract, but rather in the form of a Purchase Order.[19] The question is thus whether the Sub-Supply Contract is unambiguous as to (1) its commitment to purchase any units from L-30S and (2) if binding, whether the commitment to purchase is for all 60 units contemplated in the agreement, or rather only the amount in the ensuing purchase order. We find that the Sub-Supply Contract, by its unambiguous terms, covers the purchase of 60 units as contemplated in Article 4.1.[20] We make this finding based on the "commitment" language of that section, language throughout the document referring to the agreement as a contract, and the lack of any explicit language as to conditions precedent required prior to formation. See Gelb Aff. Exh. 37, Art. 4.1. We also note language citing the unit price for the *312 equipment, quoted as "fixed and firm," Id. at Art. 5.1, as well as the language in Article 5.3, Id. at Art. 5.3 ("in the case of failure of [Galileo] to fulfill the obligations set forth in Article 4.1 the Parties will negotiate in good faith a mutually agreeable price adjustment."), and Article 37's termination provision. Defendant argues that because the remedy provided is only renegotiation or termination, it is not demonstrative of a binding commitment. We do not find this argument persuasive.[21] The Sub-Supply Contract also sets out the methods to be used for payment to 30S, Id. at Art. 6 (providing for milestone payments and purchase orders), and provides that L-30S undertakes to deliver strictly in accordance with the delivery dates in Annex K, Id. at Art. 7. In sum, while we recognize that the amount of commissions due CIER will ultimately depend on future events which involve a chain of orders, that chain does not affect the reading of the Representative Agreement insofar as the obligations of L-30S to CIER are concerned. Obviously, other issues may arise between the defendant and Galileo, but those are separate from the issues before this Court. IV. The Propriety of a Declaratory Judgment at this Time Finally, defendant argues that a declaratory judgment is inappropriate at this time. Defendant argues that recent work stoppages at L-30S and Galileo's failure to comply with the original order schedule in the Sub-Supply Contract suggest that any future performance under the Sub-Supply Contract cannot be predicted with any certainty. Because there is no coercive remedy under the Sub-Supply Contract to enforce Galileo's commitment, L-30S argues, there is no contract to enforce, and thus no case or controversy. Defendant maintains that suit will not be ripe until compliance with the Sub-Supply Contract is achieved. Plaintiff counters that it is entitled to a declaratory judgment to clarify and settle the legal issue of contract interpretation and afford relief from the current uncertainty. Plaintiff argues that the court need not know what amount of commissions L-30S will be obligated to pay CIER by the end of the relationship contemplated in the Sub-Supply Contract in order to award a declaratory judgment. We agree with plaintiff in that we find this action ripe for consideration. We have been asked to interpret a valid contract that plaintiff argues continues to bind the parties regarding sales occurring during the contract's effective period.[22]Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617 (1937) *313 (finding that in a "concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages.") (citing Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U.S. 249, 263, 53 S.Ct. 345, 77 L.Ed. 730 (1933); Tutun v. United States, 270 U.S. 568, 576, 577, 46 S.Ct. 425, 70 L.Ed. 738 (1926); Fidelity Nat'l Bank v. Swope, 274 U.S. 123, 132, 47 S.Ct. 511, 71 L.Ed. 959 (1927); Old Colony Trust Co. v. Comm'r, 279 U.S. 716, 725, 49 S.Ct. 499, 73 L.Ed. 918 (1929)). The fact that commissions owed may be dependent on future events does not change this result. Associated Indem. Corp. v. Fairchild Industries, Inc., 961 F.2d 32, 35 (2d Cir.1992) (collecting cases). The parties' sealed submissions appear to indicate that defendant has received payments from Galileo for which CIER has not been paid commissions. If that is correct, we expect those unpaid commissions to be reflected in the proposed judgment discussed below. CONCLUSION For the foregoing reasons, we grant plaintiff's motion for summary judgment on Counts I and II of the First Amended Complaint and declare that, pursuant to the 2002 Representative Agreement, L-30S is obligated to pay CIER a commission equal to five percent of the Net Sales Price of all sonar equipment or component parts delivered pursuant to the Sub-Supply Contract, including any and all deliveries as contemplated in Article 4.1, upon L-30S's receipt of payment for such delivery. To the extent that such payments have been or will be received from Galileo by L-30S, L-30S must notify CIER in a manner that allows CIER to submit an invoice for its commissions. To the extent that L-30S has not complied with its obligations under the 2002 Representative Agreement as set out above, it is in breach of that agreement. If the parties are unable to agree on the payments L-30S has received to date and the consequent commissions due (as a mathematical matter), we would expect affidavit submissions to support the respective positions. The plaintiff is directed to submit a proposed judgment pursuant to this Order within five days on three days notice to the defendant. SO ORDERED. NOTES [1] The facts below are as set out in the cited submissions, which are generally to the parties' statements made under Southern District of New York Local Rule 56.1. Unless noted, the specific fact stated has not been materially disputed by the opposing party in their Opposition Statement under Local Rule 56.1(B) and (C), though at times other facts within the numbered paragraph may have been disputed. Where the Opposition Statement provides narrowing or clarification of the citation, it is also cited. [2] Beginning at least by 1983, CIER was engaged by L-30S and its predecessors under a series of Sales Representative Agreements to serve as a sales representative for many different products and services to military buyers in Italy, earning commissions on sales proceeds when CIER participated in effecting a sale. L-3 SOF ¶¶ 3, 40; CIER Opposition Statement Under Local Rule 56.1(B) and (C) ("CIER Opp.") ¶ 3; see, e.g., Gelb Aff. Exhs. 49, 50 (Sales Representative Agreement and Rider between The Bendix Corporation and CIER, effective January 1, 1983). [3] The Italian Navy sought to use HELRAS on their EH-101 helicopters, but did not want to have two different types of sonar on its own versus its NATO helicopters. Thus, it worked with CIER and L-30S to reverse Agusta's selection of a different manufacturer's sonar technology. L-3 SOF ¶¶ 28, 55, 56; CIER SOF ¶¶ 33, 42. [4] After the expiration of the 1999 Consulting and Representative Agreements, on August 9, 2001, L-30S sent CIER a "Disclaimer letter" noting that CIER was not authorized to "perform services for L-30S beyond the expiration date of the current agreement." Gelb Aff. Exh. 40 (Letter from Victor M. Riehl of August 9, 2001, acknowledged by Roberto Bolla for CIER); see also L-3 SOF ¶ 84. The letter continued, "there is no expressed or implied commitment by L-30S to engage you or compensate you beyond the term of the current agreement." L-3 SOF ¶ 84. CIER acknowledged and agreed to the letter's statements. L-3 SOF ¶ 85. The agreements discussed in the next section, signed in April 2002, followed this exchange. [5] The Sub-Supply Contract references the "Main Contract" as the relevant contract on which the sub-supply agreement between Galileo and L-30S was based. Gelb Aff. Exh. 37, Article 3.1. It further defines the "Main Contract" as "the contract PI/P 001 dated June 30th 2000, signed by NAHEMA and NHI for the additional design and development, production investment, production and initial product support of the first batch of 243 (two-hundred-forty-three) Helicopters inclusive of an option for up to 55 (fifty-five) additional Helicopters, and any further contract placed by NAHEMA." Id. at Article 2. [6] The Sub-Supply Contract defines "Equipment" as "deliverable hardware, the Supplier has to industrialise [sic], manufacture and deliver to the Buyer in accordance with provisions of this Contract and any Agreed Purchase Order. `Equipment' can identify either: DSS (Dipping Sonar Subsystem): To the extent of the present Contract the DSS is composed by the following Units (LRU): Submersible Unit (SU), Funnel (FU), Watershield (WS), Dome Control (DC), Cable Interface Power Supply (CIPS), Reeling Machine (RM), Cable Set (CS), Reel (R) and Latch (L), duly assembled and tested. Or, Materials KIT: Set of unassembled materials for DC + CIOS + RM + CS + R + L, duly packed following part list criteria. Or, LRU'S SET: Units SU + FR + WS duly assembled and tested." Gelb Aff. Exh. 37, Art. 2. The exact components currently on order have been amended, however, and are reflected in the currently in force Annex K, as amended April 11, 2008. See Gelb Aff. Exh. 56 (Annex K as amended). [7] By September 2003, an email was sent to CIER acknowledging CIER's role in the award of the NH-90 contract but also discussing L-30S's belief that the "mutual relationship, teamwork, and overall effectiveness has degraded" since the time of the award. L-3 SOF ¶¶ 199, 200. [8] While CIER does acknowledge that it has been paid on all invoices it has submitted (after notification by L-30S of payments received from Galileo prior to termination of the Representative Agreement), CIER maintains that there have been subsequent payments received by L-30S from Galileo on which it is owed commissions and for which it has not yet been able to submit invoices. [9] This process is contemplated by Article 5.3 of the Sub-Supply Contract. Gelb Aff. Exh. 37, Art. 5.3. The price term was amended, though L-3 maintains this was as a result of the removal of three components of the deliverable equipment (the latch, funnel, and watershield). L-3's Opposition Statement Under Local Rule 56.1(B) and (C) ("L-3 Opp.") ¶ 81. [10] The Representative Agreement states: "This Agreement, unless terminated in accordance with the provisions of Article 12 hereof, shall become effective upon execution by all parties and shall remain effective for the term set forth in Appendix A." Gelb Aff. Exh. 26, App. B, ¶ 2. Appendix A states the "term" as "two years from date of final execution or until such earlier termination of Representative's Agreement as provided herein." Id. at App. A, ¶ 3. [11] The relevant language from the Sub-Supply Agreement is set out above in Facts Section III. [12] Additionally, we note that the course of performance between the parties under the 2002 Representative Agreement demonstrates that after the Sub-Supply Contract had been signed, L-30S determined that CIER had earned commissions on the payments L-30S received from Galileo under the Sub-Supply Contract. Specifically, CIER was paid commissions on certain milestone payments received by L-30S prior to the expiration of the Representative Agreement. This course of performance suggests that defendant's argument here is litigation driven. [13] The cases cited by the defendant are not to the contrary and in fact are supportive of this analysis. See Coletti v. Knox Hat Co., 252 N.Y. 468, 169 N.E. 648 (1930) (holding that the performance of services for an entire year was a condition precedent to payment); Sommer v. Edward Ermold Co., 92 N.Y.S.2d 326, 327, 275 A.D. 629 (1st Dep't 1949) (finding that commissions are generally deemed to accrue upon "performance of services in the procurement of orders accepted by his employer" unless the contract provides otherwise); Entis v. Atlantic Wire & Cable Corp., 335 F.2d 759 (2d Cir.1964) (citing two lines of cases: (1) "finders fee" cases where fees continue to be payable after employment has terminated and (2) cases where a salesman has a continuing role and should be treated as an employee at-will earning compensation during only the term of employment; but ultimately finding the conflict between the two lines of cases is "more apparent than real" and holding that, where a contract is very informal, generally the surrounding facts should be looked to in order to determine which parties' interpretation is reasonable); Simas v. Merrill Corp., 2004 WL 213013 (S.D.N.Y. Feb. 4, 2004) (holding that the resolution of a claim for post-termination commissions turns on when the commissions are first earned according to contract language). [14] The Representative Agreement provides that L-30S has the right to refuse payment of commissions if it determines that CIER has not completed its duties under Article 1. Gelb Aff. Exh. 26, ¶ 4(A) (stating that L-30S "agrees to pay to Representative a commission as set forth in the applicable Appendix B... provided that Representative has fulfilled its duties as set forth in Article 1 above in connection with such sale."). Defendant argues that the duties listed require on-going involvement with the customer, such that commissions are not earned until the completion of this continued liaison. Not only is this reading inconsistent with the language in the remainder of the document, it is also not the most reasonable reading of these provisions, Any language in the "Duties" section of the Representative Agreement that even arguably contemplates a continuing relationship between CIER and the customer describes activities that, by their very nature, would occur in advance of any sale. See Gelb Aff., Exh. 26, ¶ 1(C) (requiring, for example, the reporting of information regarding sales opportunities generally and the provision of marketing assistance with respect to customer needs and competitor activities generally). While the Representative Agreement clearly contemplates a continuing relationship between CIER and L-30S, nothing in the "Duties" section vitiates the clear language in the remainder of the document, which unambiguously states that the governing event for accrual of commissions is the sale to the customer. Moreover, the fact that certain commissions have already been paid by L-30S to CIER with respect to money earned under the Sub-Supply Contract further supports the finding that L-30S had determined that CIER had fulfilled its duties with respect to that sale. To the extent that L-30S would now like the option of re-evaluating that determination, they are precluded from doing so because their decision not to renew the Representative Agreement prevented CIER from continuing to provide liaison services if any additional services were indeed owed. [15] Defendant also cites New York case law for the proposition that brokerage contracts can condition the broker's right to payment on complete performance of the agreement between buyer and seller. L-3 Mem., 28-29. We note that this argument is not contrary to the result here, where no payment on the commissions is owed until the contract is performed. Nor does this argument affect the section of the Representative Agreement that, as we have found, clearly provides that commissions are earned at the time of sale. [16] The Sub-Supply Contract itself contemplates a 17 month "lead-time" for the production of the equipment after a purchase order is issued. Gelb Aff. Exh. 37, Art. 7.3. [17] As set out in L-30S's 56.1 Statement, "[t]he practice and policy at ... ASOS ... was that no consultant or representative was permitted to receive fees without an agreement in place that allowed him to do so." L-3 SOF ¶ 153. L-30S maintains that this policy was good business and in line with the requirements of the Foreign Corrupt Practices Act ("FCPA"). Id. at ¶¶ 155-166. CIER challenges the relevance of the entirety of L-30S's statements on this subject. See CIER Opp. ¶¶ 155-166. [18] In making this observation, we also obviate the need for discussion of whether the "procuring cause" doctrine governs whether CIER has earned the sale or whether the contract language creates an additional requirement that the contract be earned "as a result of" CIER's efforts. L-30S admits that CIER is entitled to receive commissions for invoices on payments L-30S received under the Sub-Supply Contract prior to the expiration of the Representative Agreement "because L-30S had previously confirmed CIER's performance of services sufficient to permit payment of invoices covering those payments." L-3 Mem., 45 (citing Gelb Aff. Ex. 3, ¶ 35a). We further note that this conclusion is supported by the fact that the parties do not contest that CIER played a sufficient role in the winning of the Sub-Supply Contract, but only whether the Contract was procured under the Representative Agreement and whether CIER had continuing duties under the Representative Agreement before commissions were earned, as discussed above. [19] In making this argument, defendant characterizes the Sub-Supply Contract as a Basic Ordering Agreement ("BOA"), as defined in federal regulations regarding government contracting, rather than a contract. Regardless of whether such a regulation is applicable to the contract at issue, defendant's own expert, while describing the Sub-Supply Contract as a BOA, sets out characteristics of a BOA that are inconsistent with the terms of the Sub-Supply Contract in that the Sub-Supply Contract includes specific delivery dates and includes an obligation to purchase, as opposed to BOAs, which require that buyers issue requests for quotation in advance of an order. Supplemental Certification of Anthony J. Marchetta ("Supp. Marchetta Cert.") Exh. H, 246-261; Plaintiff's Memorandum of Law in Opposition to Defendant's Cross-Motion for Summary Judgment ("Plaintiff's Opp. Mem."), 22-23. [20] Whether Galileo's possible decision not to order more than the twenty units already ordered would create an issue between Galileo and L-30S is of no moment here as CIER has no right to a commission unless payments are made to L-30S. [21] Article 37 of the Sub-Supply Agreement sets forth extensive terms pursuant to which termination is allowed by the parties upon three months notice of one of the listed conditions of default by the Buyer and the failure of the Seller to "propose a remedy plan acceptable to the Buyer" within 60 days of receipt of the Buyer's notice. Gelb Aff. Exh. 37, Art. 37.1. The Agreement is also terminable on three months notice for the convenience of the parties if NAHEMA gives notice of termination on the Main Contract or in the case of extensive delay. Id. at Art. 37.2. Neither provision renders a contract unenforceable. See 2-6 Corbin on Contracts, ¶ 6.15 (Power to Cancel on Some Specified Non-performance of Duty by the Other Party), ¶ 6.10 (Promises Including an "Option to Terminate"). [22] As contemplated by Article 5.3, the price terms and delivery schedule of the Sub-Supply Contract have in fact been renegotiated as a result of Galileo's failure to meet its "obligations" under the terms of the agreement. As discussed more fully above, the amended terms provide for a new schedule of deliveries under the first Purchase Order, now scheduled through 2011, but do not include any new purchase orders. See Gelb Aff. Exh. 56.

J-A12028-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 M.S.C., JR. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. L.M.D. No. 3197 EDA 2015 Appeal from the Order September 18, 2015 In the Court of Common Pleas of Chester County Civil Division, at No(s): 2014-05496-CU BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E. MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 16, 2016 M.S.C., Jr. (“Father”) appeals from the order entered September 18, 2015, in the Chester County Court of Common Pleas, which denied his petition to modify custody and granted the petition to relocate of Mother (“L.M.D.”) to Toms River, New Jersey, with respect to twins, S.R.D. and A.S.D., born in May 2009, and B.S.D., born in July 2011 (collectively, the “Children”). The order further awarded the parties shared legal custody, Mother primary physical custody, and Father partial physical custody of the Children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. In addition, the order provided that the Chester County Court of Common Pleas shall retain jurisdiction over this matter until the State of New Jersey becomes the home state of the Children under the Uniform Child * Former Justice specially assigned to the Superior Court. J-A12028-16 Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S.A. §§ 5401-5482.1 We affirm. The trial court summarized the relevant procedural and factual history, in part, as follows: [L.M.D.] and [M.S.C.] are the parents of twins, [S.] and [A.], born [in May 2009], and [B.], born [in July 2011]. Mother and Father never married, and separated in 2011. Mother has been a stay-at-home mother and the primary caretaker of the [C]hildren since their birth. Under the custody order in effect at the time of trial, the parties shared legal custody of their [C]hildren, with Mother having primary physical custody and Father partial physical custody of the [C]hildren. That schedule gave Father custody of the [C]hildren for one overnight every other weekend and one evening per week.[2] Father once earned a substantial income, but by 2015 his income had dropped from $150,000 per year to $10 per hour, and he could no longer provide adequate financial support for Mother and the [C]hildren. Mother had not worked outside the home since 2008, and the parties had amassed significant debt. The home that the parties purchased when they were together, and where Mother and the [C]hildren still lived, was in foreclosure, and was scheduled to be sold at sheriff’s sale. Fortunately for Mother, her own mother owned a spacious home in Toms River, New Jersey, and invited Mother and the 1 Pursuant to order of November 2, 2015, upon motion of Father, the trial court stayed this provision regarding jurisdiction, pending appeal. See Order, 11/2/15. 2 Under the order in effect at the time, entered on May 27, 2015, the parties had shared legal custody, Mother primary physical custody, and Father partial physical custody of the Children. Specifically, Father was awarded partial physical custody, during the school year, from Tuesday at 5:00 p.m. until 7:30 p.m. and every other weekend from Friday at 5:00 p.m. until Saturday at 8:00 p.m. and, during the summer, from Tuesday at 5:00 p.m. until 7:30 p.m. and every other weekend from Thursday at 5:00 p.m. until Saturday at 8:00 p.m. See Custody Order, 5/27/15. -2- J-A12028-16 [C]hildren to move in rent-free. Father had recently moved into his girlfriend’s home in Oxford, [Pennsylvania]. On July 1, 2015, Mother filed an application requesting permission to relocate with the [C]hildren to her mother’s home in Toms River, New Jersey. In her petition, Mother cited the benefits of relocation as providing a stable home for the [C]hildren, as well as the support of her extended family as Mother finished her college [degree] and increased her earning potential. Father objected to relocation, and requested that he be granted primary physical custody of the [C]hildren.[3] A trial on both petitions began on September 9, 2015. Later that day, during the proceedings, Father suffered a cardiac event.[4] Trial recessed so that Father could be evaluated and treated at a hospital. Trial continued on September 23rd and was concluded on September 24, 2015. . . . Trial court opinion, 11/5/15, at 1-3. Over the course of the three hearings on the instant petitions, both Mother and Father testified on their own behalf. In addition, the court heard from creditor, Keith Kimmel; Paternal Grandmother, D.C.; and Father’s girlfriend, with whom he resides, J.G.5 Both parties were represented by 3 Subsequent to receipt of Mother’s notice of proposed relocation, Father filed a counter-affidavit objecting to Mother’s relocation with the Children on June 1, 2015. Father additionally filed a petition to modify custody and to deny Mother’s request to relocate on June 3, 2015. Father requested shared legal custody and primary physical custody of the Children. 4 Father has atrial fibrillation, which was active at the time, and for which he testified he needs a cardioversion. Father additionally testified that he had recently lost fifty-one pounds due to a stomach condition for which he required surgery. See N.T., Hearing, 9/23/15, at 121-122. 5 The court did not and was not requested by the parties, through counsel, to interview the Children. Opinion and Custody Order, 10/1/15, at 7. -3- J-A12028-16 counsel. Notably, upon resumption, Father was absent during portions of the proceedings due to his cardiac condition. See N.T., Hearing, 9/24/15, at 3. By order of October 1, 2015, the trial court denied Father’s petition to modify custody and granted Mother’s petition to relocate to Toms River, New Jersey, with the Children. The court awarded the parties shared legal custody, Mother primary physical custody, and Father partial physical custody of the Children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. In addition, the order provided that the Chester County Court of Common Pleas shall retain jurisdiction over this matter until the State of New Jersey becomes the home state of the Children under the UCCJEA. The trial court’s order, formatted as an opinion and custody order, analyzed each of the factors pursuant to §§ 5328(a) and 5337(h) and included findings of fact and determinations regarding credibility and weight of the evidence. Father, through counsel, filed a timely notice of appeal, along with concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii).6 On appeal, Father raises the following issues for review: 1. Did the [h]onorable [t]rial [c]ourt err in transferring jurisdiction to the state of New Jersey in violation of UCCJEA without taking any testimony concerning this point and 6 The court’s Rule 1925(a) opinion adopted its October 1, 2015 opinion and custody order which, as indicated, analyzed each of the custody and relocation factors pursuant to §§ 5328(a) and 5337(h), respectively. -4- J-A12028-16 without Defendant requesting this relief in her Petition for Relocation? 2. Did the [h]onorable [t]rial [c]ourt err in considering evidence not in the record by ruling that the parties shall exchange custody of the children at a location in Bellmawr, New Jersey, without any testimony or explanation as to that location? 3. Did the [h]onorable [t]rial [c]ourt err in repeatedly holding that Father’s custodial time would be increased so as to “lessen any negative impact” of relocation when, in fact, it is decreased? 4. Did the [h]onorable [t]rial [c]ourt err in placing undue weight and drawing a negative inference concerning Father’s health in that Father suffered a cardiac event during the first day of the hearing and was in active atrial fibrillation for the duration of the trial; however, Father testified that his illness is short term and not debilitating? 5. Did the [h]onorable [t]rial [c]ourt err in it’s [sic] consideration of the relocation factors? 6. Did the [h]onorable [t]rial [c]ourt err in denying Father’s Petition to Modify Custody to grant him primary custody? 7. Did the [h]onorable [t]rial [c]ourt err in failing to admit into evidence, or make a part of the record, the medical records of one of the children, despite Mother authenticating the records as being those she reviewed from the child’s therapist? 8. Did the [h]onorable [t]rial [c]ourt err in giving undue weight to [M]other’s role as primary care giver?[7] Father’s Brief, at 4. Our standard of review with regard to a custody matter is well-settled: In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings 7 The last two issues are noted as withdrawn by Father and are, therefore, not addressed. -5- J-A12028-16 of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted). “When a trial court orders a form of custody, the best interest of the child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014) (citation omitted). The factors to be considered by a court when awarding custody are set forth at 23 Pa.C.S. § 5328(a). E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015). Section 5328 provides as follows: (a) Factors.—In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following: (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party. (2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services). -6- J-A12028-16 (3) The parental duties performed by each party on behalf of the child. (4) The need for stability and continuity in the child’s education, family life and community life. (5) The availability of extended family. (6) The child’s sibling relationships. (7) The well-reasoned preference of the child, based on the child’s maturity and judgment. (8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm. (9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs. (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child. (11) The proximity of the residences of the parties. (12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements. (13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party. (14) The history of drug or alcohol abuse of a party or member of a party’s household. (15) The mental and physical condition of a party or member of a party’s household. -7- J-A12028-16 (16) Any other relevant factor. 23 Pa.C.S. § 5328(a). Further, in determining whether to grant relocation, the trial court must consider the following ten factors: § 5337. Relocation * * * (h) Relocation factors—In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child: (1) The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life. (2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child. (3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties. (4) The child’s preference, taking into consideration the age and maturity of the child. (5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party. (6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but -8- J-A12028-16 not limited to, financial or emotional benefit or educational opportunity. (7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity. (8) The reasons and motivation of each party for seeking or opposing the relocation. (9) The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party. (10) Any other factor affecting the best interest of the child. 23 Pa.C.S. § 5337(h). Turning to Father’s first issue, Father questions whether the trial court erred in transferring jurisdiction to the State of New Jersey, in violation of the UCCJEA, without taking any testimony concerning this point and without Mother requesting this relief in her petition for relocation. Father argues that Mother did not seek to transfer jurisdiction and did not object to a stay of this provision of the court’s order, nor did the court hear any testimony regarding this issue. See Father’s Brief, at 24. Father additionally avers that the Children have significant contact with Pennsylvania, as they have lived in Pennsylvania all of their lives. See id. at 25. Likewise, Father indicates that he continues to reside in Pennsylvania, as does his extended family, and his custodial time with the Children is exercised in Pennsylvania. See id. -9- J-A12028-16 While disputing any error on behalf of the trial court, Mother indicates that there is no objection to Chester County retaining jurisdiction, as long as Father maintains residency in Chester County. See Mother’s Brief, at 25. With regard to a decision declining to exercise jurisdiction under the UCCJEA, absent an abuse of discretion, we will not disturb a trial court’s decision not to exercise jurisdiction under the UCCJEA. See Merman v. Merman, 603 A.2d 201, 203 (Pa. Super. 1992). Section 5422 of the Domestic Relations Code provides, in part, as follows: (a) General rule.--Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth which has made a child custody determination consistent with section 5421 (relating to initial child custody jurisdiction) or 5423 (relating to jurisdiction to modify determination) has exclusive, continuing jurisdiction over the determination until: (1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child’s care, protection, training and personal relationships; or (2) a court of this Commonwealth or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this Commonwealth. Further, § 5427 states: (a) General rule.--A court of this Commonwealth which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the - 10 - J-A12028-16 circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion or request of another court. Here, regardless of Father’s continuing residency and exercise of his custodial time in Pennsylvania, we discern no abuse of discretion by transferring jurisdiction to New Jersey under the UCCJEA once the Children and Mother have resided in New Jersey for the appropriate period of time. Based on all evidence, Mother has been the Children’s primary caretaker. Further, the trial court stayed this provision of its order pending this appeal. Therefore, this issue is without merit. In his second issue, Father raises trial court error for considering evidence not in the record by ruling that the parties shall exchange custody of the children at a location in Bellmawr, New Jersey, without any testimony or explanation as to that location. Father avers that Mother did not present any evidence or make any proposal as to the location of the exchange and that the court made this decision based on factors not in evidence. See Father’s Brief, at 25. Mother indicates that at the start of trial she requested custodial exchanges at a midpoint between her proposed residence in Toms River, New Jersey, and Father’s residence in Oxford, Pennsylvania, noting that exchanges took place at the New Garden Police Department.8 See Mother’s 8 We note that, per order entered August 11, 2014, subsequent to conciliation, custodial exchanges were to occur at the New Garden Police Department. See Custody Order, 8/11/14. See also N.T., Hearing, 9/24/15, at 187. - 11 - J-A12028-16 Brief, at 22. Moreover, Mother contends that in her proposed order attached to her closing argument9 she proposed custodial exchanges at the Bellmawr Police Department. See id. at 23. However, she suggests that a trial court may take judicial notice of certain information.10 See id. at 22. “In this case, Mother proposed the Bellmawr Police Department to the [t]rial [c]ourt. However, the [t]rial [c]ourt would have been well within its authority to take judicial notice of the location on its own motion.” Id. at 23. We agree. In the instant matter, the certified record does not include Mother’s proposed order attached to her closing argument.11 Nonetheless, at the commencement of the hearing on September 9, 2015, counsel for Mother requested that the parties meet at a location in the middle for custodial exchanges, observing that the exchanges took place at the New Garden Police Department. See N.T., Hearing, 9/9/15, at 8. Counsel offered, “Mother would seek to have the parties meet in the middle for transportation. Currently, the exchanges take place at the New Garden Police Department for various reasons related to the case. We can find any police department at which the parties could meet.” Id. Further, pursuant to 9 While the certified record contains Mother’s closing argument, a proposed order is not attached to the copy contained therein. 10 Mother incorrectly cites Pennsylvania Rule of Civil Procedure 201, instead of Pennsylvania Rule of Evidence 201, in her brief. 11 We acknowledge that we may only consider that which is in the certified record. See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc). - 12 - J-A12028-16 Pa.R.E. 201, a trial court may take judicial notice of an adjudicative fact “generally known” or which “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Pa.R.E. 201(a),(b). And a court may do so on its own accord. See id. at (c)(1). Hence, this issue fails. Next, Father challenges the trial court suggesting that his custodial time would be increased so as to “lessen any negative impact” of relocation when, in fact, it was decreased. Father indicates that the trial court proposes, in considering § 5337(h)(1), (3), and (7), that the negative impact of relocation would be alleviated by increasing Father’s custodial time. See Father’s Brief, at 27. However, Father argues that the trial court “either misunderstood or disregarded” his work schedule, which includes working Sunday from 6:30 a.m. to 5:00 p.m. Id. As such, Father maintains that “his weekday custody was eliminated and he was given additional overnights during time when he would have to quit his job in order to exercise his custodial rights.” Id. at 28. Father further recounts the logistical difficulties of maintaining contact and a relationship with the Children given the distance between his residence in Oxford, Pennsylvania, and Mother’s proposed residence in Toms River, New Jersey. See id. at 27-28. Here, the trial court stated its goal of providing Father with additional custodial time because of the relocation. See Trial Court Opinion and Custody Order, 10/1/15, at 3-5. In discussing § 5337(h)(1), the nature, quality, extent of involvement and duration of the child’s relationship with - 13 - J-A12028-16 the party proposing to relocate and with the nonrelocating party, the court stated, “[t]he [C]hildren’s relationship with Father will be altered somewhat in that he will no longer see the [C]hildren every Tuesday night as he currently does. He will, however, be granted additional custodial time with his children on weekends, holidays and vacations to ensure his consistent presence in his children’s lives.” Id. at 3. In considering § 5337(h)(3), the feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties, the court expressed, “[w]e believe that Father’s relationship with his children can be preserved and maintained through suitable periods of physical custody.” Id. at 4. Similarly, in considering § 5337(h)(7), whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity, the court concluded, “[i]n that the [C]hildren will be living with their Mother and grandmother in a stable environment, relocation benefits the [C]hildren. In that their Father will be living two hours away, relocation does not enhance his life or relationship with the [C]hildren. However, to lessen any impact, Father will be granted additional periods of partial physical custody.” Id. at 5. Although Father testified to his work schedule, Father also testified that he was on disability and not working at the time. See N.T., Hearing, - 14 - J-A12028-16 9/23/15, at 140. While he anticipated returning to work, if and when was unknown. As a result, this issue is without merit. In his fourth issue, Father asserts that the trial court erred by placing undue weight and drawing a negative inference concerning his health, despite his testimony that his illness is short term and not debilitating. Father argues, “[t]he only testimony before the court concerning Father’s illness was that at the time of the hearing he was on short term disability but expected to return to work when his A Fib was controlled.” Father’s Brief, at 29 (citation to record omitted). Referencing the trial court’s statement in its Rule 1925(a) opinion, “[o]f significance to our decision were Father’s continuing health issues, and his almost total inability to articulate or demonstrate how granting him primary physical custody would benefit the [C]hildren,” Father further disputes the court’s denial of his request for primary custody and appears to extrapolate that the court directly correlated its decision with his health. Id. at 28-29 (citation omitted). In the case at bar, a review of the record reveals that, on direct examination, Father testified as follows: Q. What is the state of your current health at the present time? A. Right now I’m in Afib. I’m going for a cardiac version (sic) on Tuesday, Chester County Hospital. I also need an operation on my stomach, the pyloric valve that come out of the stomach into the small intestine does not drain properly and my stomach retains fluid and I have lost 51 pounds since April 2nd. - 15 - J-A12028-16 Q. Do you believe that you are still healthy enough to proceed today? A. I am going to try. Q. And you were in Afib all last night? A. Yes, I was. I’m still in it right now. N.T., Hearing, 9/23/15, at 121-122. Father additionally testified that he was on short-term disability with his employer at the time, due to his atrial fibrillation, but that he anticipated to return. See id. at 140. However, this was speculative. Father’s current health and employment status are unknown. Likewise, of significance, the first day of the hearing was terminated due to Father’s cardiac condition and, upon resumption, Father was not present for portions of the proceedings due to his continued cardiac condition. See N.T., Hearing, 9/9/15, at 105; N.T., Hearing, 9/24/15, at 3. In considering the § 5328(a) custody factors, the court noted Father’s medical condition where appropriate. In discussing § 5328(a)(12), each party’s availability to care for the child or ability to make appropriate child- care arrangements, the court recounted that Father was not currently working due to medical issues. See Trial Court Opinion and Custody Order, 10/1/15, at 8-9. Further, in discussing § 5328(a)(15), the mental and physical condition of a party or member of a party’s household, the court stated, “[i]n addition, Father’s physical health is of great concern, his history of a-fib.” Id. at 9. - 16 - J-A12028-16 Moreover, we do not read the sentence Father references from the trial court’s Rule 1925(a) opinion to suggest that the court found Father’s response to its inquiry regarding why he should be granted primary physical custody related to his health condition(s) or denied him primary physical custody specifically due to his health. Rather, we read this as two separate phrases or thoughts. Our reading is supported by review of § 5337(h)(8), the reasons and motivation of each party for seeking or opposing the relocation, in which the court noted, in part, “[h]owever, at the trial in this matter, Father was directly asked why he would make a better custodial parent and he responded that if Mother and children were to move to New Jersey the children ‘would have no ordinary life.’ When asked if he wished to expand on that answer, he declined.” Trial Court Opinion and Custody Order, 10/1/15, at 5. Consequently, upon review, we discern no undue weight or negative inference. With his fifth issue, Father contends that the trial court erred in its consideration of the relocation factors. As to § 5337(h)(2), the age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child, and the trial court’s conclusion that “no significant special needs for any of the [C]hildren were identified,” Father notes a defect in the court’s reasoning. Father’s Brief, at 31. Highlighting Plaintiff’s (Father’s) Exhibit 11, he states, “[n]ot only does it indicate that the [C]hildren have special needs but it also indicates Mother’s - 17 - J-A12028-16 refusal to appropriately address those needs.” Id. Looking to § 5337(h)(5), whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party, Father cites eighteen examples of Mother’s attempts to thwart his relationship with the Children. Likewise, as to § 5337(h)(8), the reasons and motivation of each party for seeking or opposing relocation, Father suggests that the court did not address any of the testimony elicited from Father and his witnesses regarding Mothers’ motivation, which he submits is her desire to remove him from the Children’s lives. See id. at 36. Father further addresses undue emphasis placed on his response to the court’s inquiry why he would make a better custodial parent. See id. at 37-40. As we interpret his challenge to the trial court’s order, Father, in essence, questions the trial court’s conclusions and assessments and seeks for this court to re-find facts, re-weigh evidence, and/or re-assess credibility to suit his view of the evidence. This we cannot do. Under the aforementioned standard of review applicable in custody matters, the trial court’s findings of fact and determinations regarding credibility and weight of the evidence are not disturbed absent an abuse of discretion. See E.R., 129 A.3d at 527. As we have stated: It is not this Court’s function to determine whether the trial court reached the ‘right’ decision; rather, we must consider whether, ‘based on the evidence presented, given [sic] due deference to the trial court’s weight and credibility determinations,’ the trial court erred or abused its discretion. . . . - 18 - J-A12028-16 King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)). Here, the trial court carefully analyzed and addressed each factor under § 5337(h) in considering Mother’s request for relocation. The court concluded, “[w]e have also fully considered that petition of [Mother] for relocation in light of the testimony presented, and after a careful review of the statutory factors we will grant Mother’s petition to relocate. . . .” Trial Court Opinion and Custody Order, 10/1/15, at 1. After review of the record, we determine that the trial court’s findings and determinations regarding relocation are supported by competent evidence in the record, and we will not disturb them. See E.R., 129 A.3d at 527. Lastly, Father challenges the trial court’s denial of his petition to modify custody requesting primary custody. Father once more posits that the court ignored examples of Mother’s attempts to reduce his role in the Children’s lives. See Father’s Brief, at 40. In addition, Father avers that the court disregarded evidence regarding the Children’s behavior and Mother’s actions related thereto. See id. at 41-42. Father states, “[t]he [c]ourt completely ignore[d] Mother’s own admissions with regard to the [C]hildren’s behavior in her presence, as confirmed by the Holcomb records and [P]aternal [G]randmother. Mother’s recitation of her idyllic existence with the [C]hildren is contradicted by her own words to Holcomb and by the observations of [P]aternal [G]randmother.” Id. at 42. Likewise, Father emphasizes Mother’s financial instability. See id. Father also points to - 19 - J-A12028-16 evidentiary support for his petition, in contravention to the trial court’s finding. Id. at 41-42. The [c]ourt’s conclusion that Father offered little evidence as to this factor does not comport with the record. Father testified that he is gainfully employed and if his proposed living arrangements with [Father’s girlfriend] need to be changed he has the ability to provide a stable environment for the [C]hildren. He testified to his attempts at involvement in their lives, including signing on as assistant soccer coach. Paternal Grandmother identified numerous photographs of Father and the children at sporting events, Christmas at Longwood, Easter with family members, swimming with them, birthday parties and a dinner with his great uncle. [Father’s girlfriend] testified that she was prepared to open her home to the [C]hildren. She explained her observations of the [C]hildren and their father and further cited other examples of Father’s relationship with them stating that the [C]hildren “…continually tell him they love him and they hang on him.” She also identified photos of Father and the [C]hildren and testified to his taking care of them while they are in his custody. Father, [Paternal Grandmother and Father’s Girlfriend] testified that none of the [C]hildren exhibited any anxiety during the custody transitions. The [C]hildren were quiet and non-communicative until Mother closed the care door after putting them in their car seats. Once Mother shut the car door, the [C]hildren became happy and affectionate. All three testified to their observations that the [C]hildren are happy and content with [F]ather and do not exhibit any of the oppositional issues of which Mother complains with regard to [A.]. The [c]ourt’s conclusion is simply not supported by the evidence and testimony. Id. at 42-43 (citations to record omitted). As we interpret this contest to the trial court’s order, Father, again, in essence, questions the trial court’s conclusions and assessments and seeks for this court to re-find facts, re-weigh evidence, and/or re-assess credibility to suit his view of the evidence, which we cannot do. - 20 - J-A12028-16 The trial court carefully analyzed and addressed each factor under § 5328(a). As summarized by the court, “[w]e have considered the best interest of the [C]hildren, based on all of the evidence presented, and conclude that Father’s request for primary physical custody (contained in his answer to Mother’s relocation petition) must be denied as Father’s reasons, stated in his testimony, are palpably inadequate to support his request.” Trial Court Opinion and Custody Order, 10/1/15, at 1. Hence, upon review, we determine that the trial court’s findings and determinations regarding the custody factors are supported by competent evidence in the record, and we will not disturb them. See E.R., 129 A.3d at 527. Accordingly, for the foregoing reasons, we affirm the order of the trial court denying Father’s petition to modify and granting Mother’s petition to relocate with the Children to Toms River, New Jersey. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/16/2016 - 21 - 

782 F.2d 278 251 U.S.App.D.C. 196 Crookerv.Federal Bureau of Prisons 84-5288 United States Court of Appeals,District of Columbia Circuit. 1/15/86 1 D.C.D.C. APPEAL DISMISSED

531 P.2d 915 (1975) STATE of Oregon, Respondent, v. Stephen SCHINDLER, Appellant. Court of Appeals of Oregon. Argued and Submitted January 17, 1975. Decided February 18, 1975. Rehearing Denied March 19, 1975. Review Denied April 8, 1975. *916 Darrell E. Bewley, Portland, argued the cause for appellant. With him on the briefs was Francis F. Yunker, Portland. Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem. Before SCHWAB, C.J., and FOLEY and FORT, JJ. FORT, Judge. Stephen Schindler, defendant herein, was jointly indicted with Matt Bob Freeman and George Andrew Lake for theft in the first degree. ORS 164.055. He was tried separately and convicted. On appeal he assigns a number of errors, including the denial of his motion for a directed verdict of acquittal, the failure to grant certain other motions, and certain jury instructions. At some time over the weekend of May 3-6, 1974, the Amrick Suzuki Company warehouse in Portland was burglarized of ten new Suzuki and Rickman brand motorcycles. The Amrick Suzuki dealership office was located on North Lombard Street, its warehouse at the corner of Killingsworth and North Missouri. On the afternoon of May 6, 1974, defendant saw James Shaw and codefendant George Lake walking and offered them a ride. Shaw testified that in the ensuing conversation Lake told defendant that he had several "hot" motorcycles for sale at $100 apiece. Defendant, according to Shaw, expressed an interest in the merchandise, and the three proceeded to the Lake residence where they inspected the motorcycles in the basement. Defendant *917 soon left but indicated he would return because of his interest in a motorcycle. Later in the day, defendant met one Michael Deardorff, the state's chief witness. Deardorff testified to the following effect at trial: Defendant told Deardorff that he knew where a Suzuki 250, still in its crate, could be bought for $100. Defendant was "very intent" on consummating the transaction. Deardorff testified: "A He [defendant] told me that he had the money on him and that * * * if I would pay him back the next day * * * then he would just go over and buy it for me * * *." Defendant and Deardorff then drove to the Lake residence to inspect the motorcycles. George Lake told Deardorff that the Suzuki 250 had been sold, but that he could purchase a Rickman for the same price, which was $80. Lake also informed Deardorff that the motorcycles were hot. When Lake indicated that he could not furnish a title or bill of sale to Deardorff, defendant volunteered that he (defendant) would give a bill of sale. After Deardorff and defendant left the Lake residence, defendant told Deardorff that the $20 price discrepancy was due to his own desire to make "a little bit extra" on the sale. The two agreed that Deardorff, if he decided to make the purchase, would pay $100. After Deardorff and defendant parted, Deardorff proceeded to a police station and related the night's events to a detective. He was given $100 and instructed to purchase the motorcycle offered him. Deardorff then returned to defendant's residence and told him that he had decided to buy the Rickman. Defendant informed him that the Rickman had been sold but that a Suzuki 250 was available for the same price. Deardorff agreed to purchase the Suzuki. Also during this conversation, defendant said that he himself had bought another of the motorcycles at Lake's and traded it for a red GTO automobile that was now in front of his house. James Shaw testified that defendant told him the same thing. Deardorff and defendant then returned to the Lake residence. This time Deardorff dealt with one Freeman, the other codefendant, who lived with Lake. After first quoting him a price of $80 on the Suzuki, Freeman demanded $100 for the motorcycle, which Deardorff paid. Subsequently, the motorcycle was loaded into James Shaw's pickup and, at defendant Schindler's suggestion, taken to his own residence until Deardorff could make further arrangements. Shaw and defendant unloaded the cycle and placed it in defendant's garage. Upon leaving, Deardorff told defendant that he would pay him the agreed $20 later in the week. A short while later, Deardorff returned to Schindler's residence with a pickup truck. Defendant came out and told Deardorff to turn off the engine so as not to arouse suspicion. Defendant then loaded the motorcycle into the pickup. Deardorff took it to the police station where it was identified by serial number as stolen property. Defendant first challenges the overruling at trial of his motion for a directed verdict of acquittal. In considering such, we review the evidence in the light most favorable to the state, and will sustain the trial court's action if there is any substantial evidence to support the verdict of guilt beyond a reasonable doubt. See, State v. Miller, 14 Or. App. 608, 513 P.2d 1199, Sup.Ct. review denied (1973); State v. Krummacher, 15 Or. App. 234, 515 P.2d 412 (1973), rev'd on other grounds, 269 Or. 125, 523 P.2d 1009 (1974); State v. Gross, Or. App., 99 Adv.Sh. 1987, 526 P.2d 1050 (1974). Based on the foregoing facts we conclude the motion was correctly denied. Defendant also asserts that the state did not show that any motorcycle was stolen from Gene Jurick, and that such constitutes a failure of proof. The indictment alleges the corpus delicti to consist of "one *918 (1) Suzuki RL 250 motorcycle, of the total value of more than Two Hundred Dollars, the property of Gene Jurick." At the trial, testimony showed that the motorcycles taken in the burglary were the property of "Amrick Suzuki, Inc." Gene Jurick and a business associate owned all the stock in said corporation. A variance between the indictment and proof presented at trial does not constitute reversible error unless such variance was material or prejudicial to the defendants in presenting their defenses. State v. Hanson/Hughes, 14 Or. App. 586, 513 P.2d 1202, Sup.Ct. review denied (1973). Moreover, ORS 135.725 specifically declares that an erroneous allegation as to the person injured by a crime such as that committed herein is not material so long as the subject act is otherwise sufficiently described. See, State v. Smith and Leonard, 253 Or. 280, 453 P.2d 942 (1969), and authorities cited therein. State v. Nored, 10 Or. App. 126, 498 P.2d 839, Sup.Ct. review denied (1972), relied on by defendant, is not inconsistent with this rule, merely indicating that an allegation of ownership may be necessary to protect the defendant from being charged twice for the same offense. Defendant makes no claim that there is any such danger herein, nor can we conceive of any. The contention is without merit. Defendant next asserts that there was a failure of proof in connecting the motorcycle purchased by Deardorff with the burglary. At trial, evidence was adduced to the following effect: (1) a number of Suzuki and Rickman motorcycles were stolen from the Amrick warehouse; (2) several Suzuki and Rickman motorcycles in new condition were observed in the basement of the Lake-Freeman residence very shortly after this burglary; (3) Deardorff was informed by Lake that the motorcycles in the basement were "hot"; (4) the Rickman motorcycle inspected by Deardorff on the Lake-Freeman premises had affixed to it a sticker bearing a North Lombard Street address — the street on which the Amrick dealership, as distinguished from its warehouse, was located; (5) a few hours after the sale to Deardorff, police found a registration tag on the Lake-Freeman premises bearing the serial number of one of the motorcycles taken in the burglary; and (6) Deardorff delivered the Suzuki motorcycle purchased from Freeman and taken from the Lake-Freeman basement to the police, who identified it by serial number as stolen property. We find such evidence sufficient to support an inference that the motorcycle purchased by Deardorff was taken as a part of the Amrick warehouse burglary. Defendant next contends that there was a failure of proof that defendant was involved in theft of any kind under our criminal code. The evidence, as set forth above, viewed in the light most favorable to the state, is such that a jury could conclude that defendant was intimately involved in the sale, disposition and concealment of property he knew or should have known was stolen, thereby rendering him guilty of theft by receiving. See, State v. Doster, 247 Or. 336, 427 P.2d 413 (1967). The argument is without merit. Defendant contends that it was error for the court to deny his motion to withdraw from the jury the question of whether defendant was involved in the actual theft of the motorcycle, and to give in his instructions the statutory definition of theft. He claims that such could easily have led the jury to assume that there was evidence of some actual involvement by defendant in the theft from the warehouse. The 1971 legislature adopted a new Oregon Criminal Code. Oregon Laws 1971, ch. 743. ORS 164.015 now provides: "A person commits theft when, with intent to deprive another of property or to appropriate property to himself or to a third person, he: "* * * "(5) Commits theft by receiving as provided in ORS 164.095." *919 ORS 164.095 provides: "(1) A person commits theft by receiving if he receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft. "(2) `Receiving' means acquiring possession, control or title, or lending on the security of the property." The Oregon Criminal Law Revision Commission in its Commentary stated: "The draft follows the Model Penal Code by incorporating the traditionally distinct crime of receiving stolen property as part of the comprehensive `theft' offense. "The definition of `receiving' is taken from Model Penal Code § 223.6(1). The commentary thereto stresses that the essential idea to be expressed in statutes prohibiting receiving stolen property is that of acquisition of control whether in the sense of physical dominion or of legal power to dispose. The definition is broad enough to cover `constructive possession' and the activities of those who buy stolen property, as well as persons who acquire title thereto otherwise than by purchase, and who make loans and advances on such property. "Consolidation of receiving with other forms of theft provides the same advantages as other aspects of the unification of the theft concept. It reduces the opportunity for technical defenses based upon legal distinctions between the similar activities of stealing and receiving the fruits of the theft." Proposed Oregon Criminal Code 137, Art. 14, § 129 (1970). Viewed in the context of the foregoing, it is clear that the instruction was not erroneous. In relevant part, the instructions delivered by the judge read as follows: "Now, the defendant is charged with the crime of theft in the first degree. To prove this charge, the State must prove each of the following material elements beyond a reasonable doubt: "That the defendant, Stephen Schindler, did unlawfully and knowingly commit theft of property, to-wit: a Suzuki RL-250 motorcycle, of the total value of more than $200, the property of Gene Jurick, "That the theft was theft by receiving as defined in the statute, "That the crime, if any, took place on or about May 6, 1974; and "That the crime, if any, occurred in Multnomah County, Oregon. "Oregon law defines theft as follows: "A person commits theft when, with intent to deprive another of property or to appropriate property to himself or to a third person, he: "(1) takes, appropriates, obtains or withholds such property from an owner thereof, or when he "(2) commits theft by receiving as provided in ORS 164.095. "Oregon law defines theft by receiving as follows: "A person commits theft by receiving if he receives, retains, conceals or disposes of property of another knowing that the property was the subject of theft or if he buys, sells, or lends upon the security of the stolen property. "`Receiving' means acquiring possession, control or title, or lending on the security of the property." The judge thus explicitly stated that the issue to be decided was whether defendant was guilty of theft by receiving. His recitation of the general theft provision (ORS 164.015) was merely to provide statutory context for the theft-by-receiving provision incorporated thereunder in our criminal code. In State v. Keffer, 3 Or. App. 57, 471 P.2d 438 (1970), we stated: "As a general rule it is not erroneous for the court to instruct the jury by defining the crime in the language of the *920 statute if the jury is not confused or misled thereby. See: 53 Am.Jur., Trial § 639, p. 494; and 23 A. 635, Criminal Law § 1194, pp. 493, 498. State v. Livingston, 2 Or. App. 587, 469 P.2d 632 (1970). * * *" 3 Or. App. at 60, 471 P.2d at 436. The above-quoted instructions in the context of this case were neither confusing nor misleading. There was no error. Defendant further objects to the following instruction which was based upon ORS 161.155 and ORS 161.160(1): "A person is criminally liable for the conduct of another person constituting a crime if with the intent to promote or facilitate the commission of the crime he solicits or commands such other person to commit the crime. It is no defense that such other person has not been prosecuted for or convicted of any crime based upon the conduct in question." We note first the defendant was jointly indicted with Lake and Freeman on this charge and that there was substantial evidence indicating their joint involvement in the crime. However, we find it unnecessary to decide whether there is sufficient evidence in the record from which a jury could infer that defendant solicited another to commit a crime. The instruction was clearly not prejudicial. In State v. Stark, 7 Or. App. 145, 490 P.2d 511 (1971), we declared: "It is basic that jury instructions must be considered as a whole. Kinney v. General Construction Co., 248 Or. 500, 435 P.2d 297 (1969). This means that if an instruction is confusing or misleading and a specific objection is made as to its sufficiency, the reviewing court must weigh the impact of the instructions in their entirety rather than piecemeal. Parmentier v. Ransom, 179 Or. 17, 169 P.2d 883 (1946); Klebaum v. Mitchell, 246 Or. 196, 424 P.2d 219 (1967); Smith v. Fields Chevrolet, 239 Or. 233, 396 P.2d 200 (1964); Simmons v. Holm, 229 Or. 373, 367 P.2d 368 (1961)." 7 Or. App. at 149, 490 P.2d at 513. In the context of an otherwise clear and unambiguous charge, we find no prejudice in the challenged instruction. In State v. Selby, 73 Or. 378, 144 P. 657 (1914), the Supreme Court said: "The defendant could not have been injured by the giving of the portion of said charge to which he objects. Courts should confine their charges to the facts of the case; but an abstract charge that states the law correctly cannot be the basis for a reversal of the judgment appealed from, unless it appears to the appellate court that it did mislead, or may have misled, the jury to the prejudice of the appellant. We are satisfied that the portion of the charge criticised by the appellant did not mislead the jury." 73 Or. at 389, 144 P. at 660. See also: State v. Townsend, 237 Or. 527, 530, 392 P.2d 459 (1964); State v. Livingston, 2 Or. App. 587, 593, 469 P.2d 632 (1970). We too are satisfied that the instruction did not mislead the jury. Defendant's remaining assignments of error relate to the failure of the trial judge to withdraw certain matters from the jury's consideration, and the subsequent giving of certain instructions. In view of our previous discussion, we find it unnecessary to discuss them. They are without merit. Affirmed.

(2008) Pamela F. REYNOLDS, Plaintiff, v. REHABCARE GROUP EAST INC., Defendant. No. 4:07-cv-00388. United States District Court, S.D. Iowa, Central Division. December 12, 2008. ORDER ROBERT W. PRATT, Chief Judge. Pamela Reynolds ("Plaintiff") filed the present action against RehabCare Group East Inc. ("Defendant" or "RehabCare") on August 29, 2007 (Clerk's No. 1), alleging that Defendant violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-33. Specifically, Plaintiff claims that Defendant violated § 4311 of USERRA by discriminating against her because of her military service and that Defendant violated §§ 4312-13 by refusing to offer her reemployment after her return from active military service. Defendant filed an Answer to Plaintiffs Complaint on October 1, 2007. Clerk's No. 11. On October 4, 2007, Plaintiff filed a Motion for Preliminary Injunction. Clerk's No. 13. Following a hearing, the Court denied Plaintiffs request for a preliminary injunction in an Order dated January 29, 2008. See Reynolds v. Rehabcare Group East Inc., 531 F.Supp.2d 1050 (S.D.Iowa 2008). On March 26, 2008, Defendant filed the present Motion for Summary Judgment. Clerk's No. 33. After receiving an extension of time for the purpose of conducting additional discovery, Plaintiff filed a Resistance to Defendant's Motion for Summary Judgment on August 15, 2008. Clerk's Nos. 49-50. Defendant filed a Reply to Plaintiffs resistance on September 3, 2008. Clerk's No. 57. Neither party has requested a hearing and the matter is, therefore, fully submitted. I. FACTUAL BACKGROUND Plaintiff is a licensed physical therapist in the State of Iowa. Def.'s Material Facts ¶ 21. In 2002, Plaintiff began providing physical therapy services at Green Hills Retirement Community ("Green Hills") in Ames, Iowa. Id. ¶ 22. Green Hills has contracted with LifeCare Services, Inc. ("LifeCare") to provide management services to Green Hills' residents. Id. ¶ 2. Rod Copple ("Copple"), Green Hills' Executive Director, is an employee of LifeCare. Id. ¶ 3. Various independent entities provide vendor services at Green Hills. Id. ¶ 4. One such vendor service provided to Green Hills' residents is rehabilitative therapy. Id. At no time has Plaintiff ever been employed by Green Hills. Id. ¶ 5. Rather, Plaintiff provided physical therapy services at Green Hills beginning in 2002 pursuant to Green Hills' contract for rehabilitation services with Plaintiffs employer, MJ Care. Id. ¶¶ 22-23. MJ Care's contract with Green Hills ended in early 2004. Id. ¶ 24. Green Hills then entered into a contract with Progressive Rehab Associates ("Progressive"), a company that provides rehabilitation services in various communities throughout Iowa. Id. ¶¶ 6, 25. Progressive provided rehabilitation services at Green Hills from May 1, 2005 to June 30, 2007. Id. ¶ 7. Plaintiff became an employee of Progressive in May 2004, id. ¶ 26, and provided rehabilitation services at Green Hills for Progressive until she was deployed to active military duty on March 23, 2006.[1]Id. ¶ 28. Plaintiff served on active duty at Fort Hood, Texas from March 23, 2006 to July 8, 2007. Id. ¶ 30. On May 3, 2007, while Plaintiff was stationed at Fort Hood, Progressive gave Green Hills sixty days notice that it was terminating the contract for rehabilitation services, apparently due to Green Hills' decision to become a Skilled Nursing Facility ("SNF").[2]Id. ¶¶ 31-33. Upon learning of Progressive's decision in this regard, Green Hills began the process of locating a new vendor for rehabilitation services.[3] On July 26, 2007, Green Hills ultimately contracted with Deerfield Retirement Community ("Deerfield"),[4] which in turn, subcontracted with RehabCare, a company that provides rehabilitation services for health care facilities nationwide, for the provision of rehabilitation services at Green Hills. Id. ¶¶ 11-13, 37-38. RehabCare was aware of Plaintiff's military service commitments prior to signing the contract with Deerfield to provide services at Green Hills. Pl.'s Material Facts ¶ 77. Plaintiff has never been employed by RehabCare. Def.'s Material Facts ¶ 14. At the time of her deployment, Plaintiff was receiving $51.28 per hour as an employee of Progressive. She worked 30 hours per week, had three weeks of annual vacation, and was allowed to participate in Progressive's 401K program. Hr'g Tr. at 39. On June 5, 2007, during her "terminal leave" from the military,[5] Plaintiff contacted Progressive and Copple and stated that she was "reapplying for [her] position as physical therapist at Green Hills," pursuant to USERRA. Pl.'s App. at 221. In a post script to Copple specifically, Plaintiff stated her understanding that "Progressive is ending its relationship with Green Hills" and asserted that any successor contractor would be "a `successor in interest' and covered by USERRA." Id. A copy of Plaintiff's letter was forwarded to Rehab-Care.[6] Plaintiff had ongoing discussions with Melissa Violette ("Violette"), the regional manager of operations for RehabCare, beginning in June 2007. See generally Hr'g Tr. (Pl.'s Testimony at 34-59). Plaintiff maintained during these conversations that RehabCare was obligated to "reemploy" her under USERRA. Id. Violette told Plaintiff that she would provide the information to her supervisors, as RehabCare had a policy of not making employment offers of any sort until such time as it actually had a contract with a specific retirement home in place. Id. at 43. After their conversations, Violette sent Plaintiff an application for employment with Rehab-Care. Plaintiff filled out the application on July 11, 2007, making substantial changes to the form of the application. See Def.'s Ex. E. Specifically, Plaintiff crossed out the word "employment" in the heading, "Application for Employment," and hand-wrote "ReEmployment/USERRA" in its place. Plaintiff further wrote: "I am an employee of Progressive Rehab Associates returning from 16 months of Active Duty with the United States Army. I am seeking reemployment as physical therapist at Green Hills Retirement Community." Id. Plaintiff also crossed out the "Applicant Statement," certifying that the information in the application was true and acknowledging that employment would be at-will, and wrote "Not applicable-See USERRA." Id. Violette asked Plaintiff to meet her at Green Hills on July 27, 2007, the first day that RehabCare was to be present at Green Hills. Hr'g Tr. at 46. Plaintiff met with Violette for approximately an hour or an hour and one-half, during which time they reviewed patient records and Plaintiff gave Violette a tour of the building. Id. at 46-47. Plaintiff also introduced Violette and another RehabCare employee to various Green Hills staff. Id. at 49. Following the tour, Plaintiff and Violette spoke privately. Id. at 50-51. Violette told Plaintiff that RehabCare really wanted to bring Plaintiff on as an employee, but that RehabCare did not think that USERRA applied to it because RehabCare did not purchase any of Progressive's assets. Id. at 51. Plaintiff responded that she believed that USERRA did apply and that her lawyer would contact RehabCare's lawyer. Id. Violette informed Plaintiff during this meeting that RehabCare had offers of employment for Plaintiff to employ her as a physical therapist at Green Hills, but Plaintiff refused to hear the offers, maintaining that "if they are not going to honor the USERRA law and reinstate me into my job that I had prior to leaving, I didn't want to hear the offer." Id. at 83. Since that time, Plaintiff has not had any further personal communication with RehabCare, except in the context of this litigation, and she has not worked for RehabCare in any capacity. II. STANDARD OF REVIEW The plain language of Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir.1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n. 5 (8th Cir.1975)). The purpose of the rule is "`not to cut litigants off from their right of trial by jury if they really have issues to try,'" Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)), but to avoid "useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried." Anderson v. Viking Pump Div., Houdaille Indus., Inc., 545 F.2d 1127, 1129 (8th Cir.1976) (citing Lyons v. Bd. of Educ., 523 F.2d 340, 347 (8th Cir.1975)). The precise standard for granting summary judgment is well-established and oftrepeated: summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). The court does not weigh the evidence nor make credibility determinations; rather, the court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wilson v. Myers, 823 F.2d 253, 256 (8th Cir.1987) ("Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact."). Employment actions are inherently fact based, and the Eighth Circuit has repeatedly cautioned that in employment discrimination cases, summary judgment should "seldom be granted ... unless all the evidence points one way and is susceptible to no reasonable inferences sustaining the position of the nonmoving party." Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir.1998) (citations omitted); see also Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) ("[S]ummary judgment should seldom be used in employment-discrimination cases."); Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir.1987), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989). This is because "inferences are often the basis of the claim ... and `summary judgment should not be granted unless the evidence could not support any reasonable inference' of discrimination." Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir.1999) (quoting Lynn v. Deaconess Med. Ctr.—W. Campus, 160 F.3d 484, 486-87 (8th Cir.1998)). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Once the moving party has carried its burden, the nonmoving party must go beyond the pleadings and, by affidavits or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. See Fed. R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. An issue is "genuine" if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. See id. at 248, 106 S.Ct. 2505. "As to materiality, the substantive law will identify which facts are material.... Factual disputes that are irrelevant or unnecessary will not be counted." Id. III. LAW AND ANALYSIS A. Plaintiffs Right to Reemployment under 38 U.S.C. §§ 4312-13 Amongst other things, Congress enacted USERRA for the express purpose of "minimiz[ing] the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service." 38 U.S.C. § 4301(a)(2). In furtherance of this purpose, section 4312 provides that: "[A]ny person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter" if the person: (1) gave advance notice of their service to their employer; (2) was absent for service in the uniformed services for a period not exceeding five years; and (3) reports to or submits an application for reemployment within 90 days after the completion of uniformed service. Section 4313 provides that a person eligible for reemployment under USERRA "shall be promptly reemployed... in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the person is qualified to perform." 38 U.S.C. § 4313(a)(2)(A). An employer, for purposes of USERRA, is "any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities, including ... any successor in interest to a person, institution, organization, or other entity referred to in this subparagraph." 38 U.S.C. § 4303(4)(A)(iv) (emphasis added). There is no question that Plaintiff met all of the requirements to be eligible for reemployment under USERRA. Rather, as the Court noted in its Order on Plaintiff's Motion for Preliminary Injunction, "the fighting issue in this case is whether Plaintiff has a right to reemployment by RehabCare, given that she was employed by Progressive at the time of her deployment to active military service." Reynolds, 531 F.Supp.2d at 1056 (emphasis added). More specifically, the question is whether RehabCare is a "successor in interest" to Progressive, such that it was obligated to "reemploy" Plaintiff under USERRA. USERRA does not define the term "successor in interest." The applicable Department of Labor regulations, however, provide the following: Is a successor in interest an employer covered by USERRA? USERRA's definition of "employer" includes a successor in interest. In general, an employer is a successor in interest where there is a substantial continuity in operations, facilities, and workforce from the former employer. The determination whether an employer is a successor in interest must be made on a case-bycase basis using a multi-factor test that considers the following: (a) Whether there has been a substantial continuity of business operations from the former to the current employer; (b) Whether the current employer uses the same or similar facilities, machinery, equipment, and methods of production; (c) Whether there has been a substantial continuity of employees; (d) Whether there is a similarity of jobs and working conditions; (e) Whether there is a similarity of supervisors or managers; and, (f) Whether there is a similarity of products or services. 20 C.F.R. § 1002.35. A nearly identical test for successor liability was employed by the Eighth Circuit Court of Appeals in Leib v. Georgia-Pacific Corp., a case arising under a USERRA predecessor, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. §§ 2021 et seq.[7]Leib, 925 F.2d 240, 247 (8th Cir.1991) (adopting a test for successor liability that includes consideration of circumstances such as "whether there is (1) substantial continuity of the same business operations, (2) use of the same plant, (3) continuity of work force, (4) similarity of jobs and working conditions, (5) similarity of supervisory personnel, (6) similarity in machinery, equipment, and production methods, and (7) similarity of products or services.") (citing Smegal v. Gateway Foods of Minneapolis, Inc., 819 F.2d 191, 193 (8th Cir. 1987)). Indeed, the legislative history of USERRA states: "The Committee intends that the multi-factor analysis utilized by the court in Leib v. Georgia-Pacific Corp. is to be the model for successor in interest issues, except that the successor's notice or awareness of a reemployment rights claim at the time of merger or acquisition should not be a factor in this analysis." H.R.Rep. No. 103-65, reprinted in 1994 U.S.C.C.A.N. 2449 at 2454. In its Order on Plaintiff's Motion for Preliminary Injunction, this Court discussed extensively the only two reported cases that have considered questions of successor in interest liability under USERA—Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1232 (11th Cir. 2005), and Murphree v. Communications Technologies, Inc., 460 F.Supp.2d 702, 704 (E.D.La.2006). See Reynolds, 531 F.Supp.2d at 1058-60. The Court specifically declined to employ Coffman's "ownership and control" test,[8] favoring instead the "business continuity test" employed in Leib, adopted in Murphree, and requested by Plaintiff. Id. at 1060. Accordingly, bearing in mind the different standard of review applicable to the present Motion for Summary Judgment, the Court turns now, as it previously did with respect to Plaintiffs Motion for Preliminary Injunction, to an evaluation of each of the six Department of Regulation factors to determine whether RehabCare is a successor in interest to Progressive. 1. Whether there has been a substantial continuity of business operations from the former to the current employer. Defendant urges that the undisputed evidence shows that there has been no substantial continuity of Progressive's business by RehabCare. Specifically, Defendant points out numerous facts that demonstrate a lack of substantial continuity of business operations between Progressive and RehabCare. Plaintiff has never been employed by either Rehab-Care or Green Hills. Def.'s Material Facts ¶¶ 5, 14. Progressive not only has no relationship with RehabCare, but also has no existing relationship with Green Hills, never owned any portion of Green Hills, and never purchased any equipment for Green Hills—the only relationship between Progressive and Green Hills was a contractual one that ended when Progressive terminated it. Id. ¶¶ 19;[9] Hr'g Tr. at 62-63.[10] RehabCare did not "assume or take over" Progressive's contract with Green Hills, but rather entered into a separate contractual relationship with Deerfield, which had entered into a contractual arrangement with Green Hills that was separate and distinct from the contract between Progressive and Green Hills. Def.'s Material Facts ¶¶ 8, 11, 13. Progressive removed all of its patient files from Green Hills by August 19, 2007, and also removed equipment and supplies. Id. ¶ 42; Pl.'s Response ¶ 42. The services provided at Green Hills by RehabCare, other than to the extent their performance is governed by state law, was provided according to RehabCare's standards and policies, not Progressive's standards and policies. Def.'s Material Facts ¶ 46; Pl.'s Response ¶ 46.[11] RehabCare purchased absolutely nothing from Progressive, and it conducted independent assessments of all patients, started its own patient files, and utilized its own employees. Hr'g Tr. at 132 (Violette Testimony). Finally, when asked at the hearing on the Motion for Preliminary Injunction whether RehabCare's business operations at Green Hills were "separate and distinct from the operations that Progressive had," Plaintiff replied, "Yes." Hr'g Tr. at 65. Plaintiff counters these factors by arguing that there is a substantial continuity of operations between Progressive and RehabCare because RehabCare: provided the same types of rehabilitative services that Progressive provided to Green Hills residents; the services were provided in the same facility using the same or "functionally equivalent" equipment as that used by Progressive; RehabCare treated the same Green Hills residents as Progressive did; physical therapy prescriptions were made by the same physicians using the same forms for both Progressive and RehabCare; Lynn Mitchell ("Mitchell"), the director of nursing, and Dr. George Montgomery ("Dr. Montgomery") both maintained authority to prohibit physical therapists, whether from Progressive or RehabCare, from accessing patients; and Progressive and RehabCare both used forms based on Medicare mandated forms 700 and 701. Plaintiff further contends that the only real differences in Progressive's business operations and Rehab-Care's business operations are that Rehab-Care utilizes, though only rarely, a few additional pieces of therapy equipment, and that RehabCare might have provided slightly different services to specific Green Hills residents based on their unique needs. Thus, Plaintiff concludes, "a reasonable jury could find that Defendant continued to practice the business in the same manner and with the same fashion as its predecessor establishing that Defendant is a successor in interest." Pl.'s Br. at 24-25. Based on the record before it, the Court concludes that Plaintiff cannot demonstrate a continuity of business operations between Progressive and RehabCare, let alone a "substantial" continuity of business operations as required by the Department of Labor regulation. Indeed, the only "continuity" in this case comes by virtue of the fact that both Progressive and Rehab-Care provided, as a part of their overall business operation, physical therapy services on the Green Hills campus. Other than this commonality, Progressive and RehabCare had no relationship whatsoever. The mere fact that Progressive and RehabCare provided similar services to Green Hills by virtue of entirely separate and distinct contractual relationships, however, is insufficient to establish a "continuity of business operations" between Progressive and RehabCare. Indeed, to find otherwise would improperly blur the distinction between all independent service providers in a particular field. 2. Whether the current employer uses the same or similar facilities, machinery, equipment, and methods of production. Defendant next contends that there is no genuine issue of material fact on the question of whether RehabCare used the same or similar facilities, machinery, equipment, and methods of production. Specifically, Defendant points out that RehabCare did not purchase any of Progressive's equipment or supplies,[12] Def.'s Material Facts ¶ 35, and that the specific types of rehabilitation services offered to any Green Hills resident may vary depending on the professional opinion of the therapist and on the wishes of the resident's treating physician. Def.'s Br. at 7. Thus, Defendant argues, the "methods of production" employed by RehabCare are not the same as those utilized by Progressive. Id. Defendant additionally points out that the only real similarity between RehabCare and Progressive is the fact that both offered services on the Green Hills campus, a factor controlled by federal and state requirements that rehabilitation services be provided on the retirement facility's campus. Def.'s Material Facts ¶ 44. Plaintiff focuses her counter argument on the premise that a "reasonable jury could find that the physical therapy provided to the residents at Green Hills after Defendant took over the operation on July 27, 2007 was the same as that provided by Progressive." Pl.'s Br. at 25. In particular, Plaintiff points out that the Green Hills residents receiving therapy were the same, that the equipment and therapy room, both owned by Green Hills, were utilized by both Progressive and Rehab-Care in providing therapy, and that Progressive and RehabCare both used the same types of Medicare-mandated forms. Id. As it did with respect to Plaintiffs Motion for Preliminary Injunction, the Court agrees that Progressive and RehabCare provide fundamentally the same services, that is, occupational, speech, and physical therapy rehabilitation. The Court also agrees that these services were provided in the same location and in generally the same way by both Progressive and Rehab-Care. Plaintiff concedes, however, that this would be an equally true correlation between Progressive and any other rehabilitation services provider that might have entered into a contract with Green Hills. Given these factors, the Court believes that this factor is neutral in the determination of whether RehabCare is a successor in interest to Progressive. 3. Whether there has been a substantial continuity of employees. With regard to whether there was a substantial continuity of employees between Progressive and RehabCare, Defendant contends simply that "[n]o employees who previously worked for Progressive are currently working for RehabCare." Def.'s Br. at 8. Plaintiff does not dispute this fact, but argues instead that the Green Hills personnel that provided oversight of physical therapy services at Green Hills, namely Mitchell, Dr. Montgomery, and Copple, remained unchanged between Progressive and RehabCare. The Court previously rejected the contention that a continuity of Green Hills staff was sufficient to establish a continuity of employees for purposes of determining whether RehabCare is Progressive's successor in interest: Plaintiff offers absolutely no support for the proposition that this Court should evaluate continuity of employees by looking at whether the employees at Green Hills were the same during the contracts of Progressive and Rehab-Care. The question before the Court is whether Plaintiff is entitled to be reemployed by RehabCare on the basis that RehabCare is a successor in interest to Progressive, not whether Plaintiff is entitled to be reemployed by Green Hills. The fact that Progressive and Rehab-Care each provided services on the Green Hills campus does not change the fundamental fact that Plaintiff was never employed by Green Hills. Were this Court to adopt Plaintiff's position, successor interest liability under USERRA would be broadened beyond all logical bounds. Reynolds, 531 F.Supp.2d at 1062. Thus, as it did in its previous Order, the Court "finds that this factor weighs decidedly in favor of Defendant." Id. Plaintiff makes one alternative argument regarding the substantial continuity of employees factor, namely that the factor should be eliminated from consideration in this case because RehabCare discriminated against Plaintiff on the basis of her military service. Plaintiff cites Systems Management, Inc. v. NLRB, 901 F.2d 297 (3d Cir.1990) and Kallmann v. NLRB, 640 F.2d 1094 (9th Cir.1981) in support of this proposition. In both cases, which dealt with the applicability of union collective bargaining agreements when a company is purchased by new owners, the definition of "successor employer" depended on a finding that the "majority of the employees of the former enterprise were hired by the new employer." Systems Mgmt., 901 F.2d at 302 (citing Howard Johnson Co. v. Detroit Local Joint Executive Bd., Hotel & Restaurant Employees, 417 U.S. 249, 263, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974) (requiring a "substantial continuity in the identity of the work force across the change in ownership")); Kallmann, 640 F.2d at 1100. The courts declined to require that this factor be proven where the new owner's discriminatory refusal to hire union members was the cause for the lack of continuity in the work force. See Kallmann, 640 F.2d at 1100-01 ("`It is manifest that but for [the new owner's] discriminatory refusal to offer employment to [the union's bargaining] unit employees, the Union would have continued to enjoy a majority representative status. We decline to permit an employer to rely upon its own wrongdoing and thus avoid its legal responsibilities.") (quoting NLRB v. Foodway of El Paso, 496 F.2d 117, 120 (5th Cir.1974)). Plaintiff urges that the Court should adopt the reasoning of Systems Management and Kallmann and conclude that "Defendant should therefore not be rewarded for its refusal to hire Plaintiff." Pl.'s Br. at 26. Plaintiff's argument in this regard is wholly without merit. Even assuming that Plaintiff could prove that Defendant discriminated against her on the basis of her military service, the fact remains that if RehabCare had hired Plaintiff, it would have had a grand total of one employee that was formerly employed by Progressive. The regulations require a "substantial" continuity of employees. While the term "substantial" is not defined in the regulations, it is commonly understood to refer to an "ample or considerable amount." Oxford English Dictionary Online, available at http://dictionary.oed.com (last visited December 10, 2008). The Court is hard pressed to imagine a scenario where "one" could be deemed "substantial" for purposes of this factor. 4. Whether there is a similarity of supervisors or managers. Defendant contends that there is no similarity between the supervisors and managers of Progressive and those of Rehab-Care. Plaintiff, on the other hand, points out that regardless of whether Progressive or RehabCare was providing therapy services, Dr. Montgomery and Mitchell both maintained the same ultimate responsibility and authority for oversight of physical therapy at Green Hills. Plaintiff further points out that Copple also maintained the same oversight requirements for all employees or contractors working at Green Hills, pursuant to state law. Pl.'s Br. at 29 ("Thus, Mr. Copple's responsibilities for ensuring that the individuals providing therapy to the residents of Green Hills remained unchanged after July 27, 2007."). Additionally, Plaintiff contends that RehabCare did not dictate to its therapists how therapy was performed at Green Hills and maintained "little supervision and oversight of the individual physical therapists." Id. Plaintiff admitted at the Hearing on her Motion for Preliminary Injunction that her supervisors at Progressive, Joe Albright and Drew Bossum, were no longer supervising anyone at Green Hills, and that RehabCare had its own supervisors and managers, none of whom ever worked for Progressive. Hr'g Tr. at 66. Though Plaintiff indicated that she had some supervision at Green Hills by Copple, Dr. Montgomery, nursing staff, etc., she further admitted that not one of those people had the right to hire her, fire her, or indeed take any action worse than insisting to Progressive that she not be allowed to provide services at Green Hills. Id. at 96. Copple testified at the same hearing that "[n]o one at Green Hills, including Dr. Montgomery, has the ability to take any direct supervisory actions against any of the RehabCare employees." Hr'g Tr. at 153. Dr. Montgomery testified at deposition that none "of the Green Hills staff or any of the people working there" had the right "to hire or fire anyone at all." Pl.'s App. at 130. Despite the clear and undisputed fact that not a single Progressive manager or supervisor became a manager or supervisor for RehabCare, Plaintiff nonetheless maintains that Murphree and Burns Int'l Security Services Inc. v. NLRB, 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), are "dispositive to the case at bar" and require the Court to find that this factor of the analysis weighs in her favor. In Murphree, Major Thomas Murphree worked for a military support contractor, MPRI, Inc. ("MPRI") as an Assistant Professor of Military Science ("APMS") at Tulane University. Murphree, 460 F.Supp.2d at 704. At the time, MPRI had completed three years of a four year contract with the United States Army to staff the ROTC system partially with contract employees. Id. Just prior to Murphree's activation, COMTek won the contract and was designated to assume it from MPRI about six months later. Id. While deployed, MPRI filled Major Murphree's position at Tulane University and a second Tulane University APMS position was moved by the Army to Alabama. When Major Murphree sought reemployment under USERRA, COMTek informed him that neither of the APMS positions that previously existed at Tulane were available. Id. COMTek invited Major Murphree to apply for any APMS position in the nation, but emphasized its position that it owed Major Murphree no reemployment obligation because Major Murphree had been an employee of MPRI, not of COMTek. Id. Eventually, COMTek offered Major Murphree the APMS position in Alabama, but Major Murphree declined the offer because he viewed the position as inferior to his position at Tulane, and because he did not wish to relocate his family. Id. Despite a finding by the Department of Labor's Veterans Employment and Training Service that COTek was a successor in interest to MPRI, COMTek refused to rehire Major Murphree as an APMS at Tulane. Id. Major Murphree sued for, amongst other things, violation of USERRA. The district court in Murphree noted that COMTek had provided "no evidence to show that it is not a successor-in-interest under the Leib factors or the regulations" and that the available evidence "tend[ed] to support [Murphree's] position" that COMTek was a successor in interest to MPRI. Id. at 709. The court stated that genuine issues of material fact with regard to the Leib factors prevented a grant of summary judgment. Id. Specifically, the court noted, apparently in its attempt to address the "similarity of supervisors and managers" factor, that "Cadet Command clearly retained its administrative oversight of the ROTC program after the transition." Id. Plaintiff is apparently requesting that the Court draw a parallel with the present case and conclude that Dr. Montgomery, Mitchell, and Copple are the equivalent of Cadet Command. The Court, however, does not believe that Murphree offers compelling support for Plaintiff's argument. In Murphree, the precise contours of the relationships between the Army, Cadet Command, and MPRI or COMTek were neither addressed nor discussed. Furthermore, even assuming that the relationships were functionally equivalent to those in the present case, there is no indication that the Murphree court placed particular emphasis on this factor. Indeed, the conclusion that summary judgment was improper was equally, if not more, appropriate based on the court's findings that COMTek promised substantial continuity in the transition from MPRI, there was a significant continuity in the equipment used by MPRI and COMTek, there was a substantial continuity of employees,[13] and there was a substantial similarity of jobs and working conditions. Id. Plaintiff next cites Burns for the proposition that "when a service contract is involved, there is no requirement that the identical supervisors be hired by the successor for there to be continuity of the business operation." Pl.'s Br. at 28. In Burns, Burns International Security Services, Inc. ("Burns") replaced Wackenhut Corp. ("Wackenhut") in providing plant protection services to Lockheed Aircraft Service. Burns, 406 U.S. at 274, 92 S.Ct. 1571. Despite employing 27 former Wackenhut guards amongst its 42 total guards, Burns refused to bargain with the United Plant Guard Workers of America union, which had a National Labor Relations Board ("NLRB") certified collective bargaining agreement with Wackenhut. Id. The Supreme Court held that "where the bargaining unit remains unchanged and a majority of the employees hired by the new employer are represented by a recently certified bargaining agent there is little basis for faulting the [NLRB's order requiring] the employer to bargain with the incumbent union." Id. at 281, 92 S.Ct. 1571. The Court noted that, in the underlying decision, the Court of Appeals was "unimpressed with the asserted differences between Burns' and Wackenhut's operations": All of the important factors which the Board has used and the courts have approved are present in the instant case: "continuation of the same types of product lines, departmental organization, employee identity and job functions." ... Both Burns and Wackenhut are nationwide organizations; both performed the identical services at the same facility; although Burns used its own supervisors, their functions and responsibilities were similar to those performed by their predecessors; and finally, and perhaps most significantly, Burns commenced performance of the contract with 27 former Wackenhut employees out of its total complement of 42. Although the labor policies of the two companies differed somewhat, the Board's determination that the bargaining unit remained appropriate after the changeover meant that Burns would face essentially the same labor relations environment as Wackenhut: it would confront the same union representing most of the same employees in the same unit. Burns, 406 U.S. at 281 n. 4, 92 S.Ct. 1571 (quoting William J. Burns Int'l Detective Agency, Inc. v. NLRB, 441 F.2d 911, 915 (2d Cir.1971)). The Court does not read Burns so broadly as Plaintiff. The case does not forego any "requirement that the identical supervisors be hired by the successor for there to be continuity of the business operation" as Plaintiff contends. Rather, Burns provides, exactly the way Leib does, that a similarity in managers and supervisors is but one factor to be considered in the overall calculus of determining whether one entity is the successor of another. Nothing in Burns, however, can be read to support the argument that Plaintiff is making in this case, i.e., that the Court can find a similarity of supervisors and managers based on personnel that are not employed by either the predecessor company or the purported successor in interest. Accordingly, for the same reasons that the Court rejected Plaintiff's argument regarding continuity of employees, the Court finds that Plaintiffs argument regarding whether there is a similarity between supervisors and managers must fail, i.e., Plaintiff has conflated Green Hills and RehabCare. The question is whether RehabCare is a successor in interest to Progressive, which means that the primary consideration must be whether RehabCare had managers and supervisors similar to Progressive, not whether Green Hills had the same managers and supervisors during the tenure of both Progressive and RehabCare. 5. Whether there is a similarity of jobs and working conditions. Defendant argues that, other than the fact that both Progressive and RehabCare provide physical therapy services, there are no genuine similarities between the jobs and working conditions of the two entities. Specifically, Defendant points out that RehabCare provides therapy services at Green Hills pursuant to its own policies and standards and under working conditions determined by RehabCare. Plaintiff counters that the therapists working at Green Hills for both Progressive and RehabCare provide the same type of care, in the same rooms, with similar equipment and forms for Medicare reimbursement. Neither party has argued this factor differently than in the Motion for Preliminary Injunction. In its Order on that motion, the Court discussed Smegal, finding it useful in the analysis.[14] The Court found that the issue in Smegal was fundamentally the same as the issue before this Court, and the test applied in Smegal was functionally equivalent to the Leib test. Reynolds, 531 F.Supp.2d at 1063-64. The Court concluded that Smegal "supports Defendant's position that, while performing fundamentally the same work, Rehab-Care's employees were subject to different working conditions than were Progressive's employees, by virtue of different organizational policies and procedures." Id. at 1064. In its Order on Plaintiffs Motion for Preliminary Injunction, the Court "[could not] say that this factor weighs in favor of one side or the other, given the different working conditions and requirements of Progressive and RehabCare." Id. This conclusion is equally appropriate on the present record. 6. Whether there is a similarity of products or services. Plaintiff asserts that this factor weighs in her favor because Progressive and RehabCare each provided the same services at Green Hills. Defendant admits that the general rehabilitation services provided are fundamentally the same, but emphasizes that specific services provided to any particular patient may differ from one rehabilitation provider to another. Thus, since the specific services provided are subject to the professional judgment of the therapist involved, the services provided by RehabCare are not necessarily the same as those provided by Progressive. Defendant's position on this factor, while technically true, does not undermine the similarity in services provided by Rehab-Care and Progressive. Accordingly, the Court finds, as it did with respect to Plaintiff's Motion for Preliminary Injunction, that this factor weighs somewhat in favor of Plaintiff.[15] Having considered all of the Department of Labor/Leib factors, the Court finds, based on the evidence now before it, that no reasonable jury could conclude that RehabCare is a successor in interest to Progressive. Plaintiff cannot demonstrate a continuity of business operations, a continuity of employees, or a similarity in supervisors and managers. See 20 C.F.R. § 1002.35 ("In general, an employer is a successor in interest where there is a substantial continuity in operations, facilities, and workforce from the former employer."). While the services provided by both Progressive and RehabCare are generally the same, the only continuity in facilities, machinery, methodology, and working conditions comes from the fact that rehabilitative services are fairly uniform from one provider to another and the fact that the rehabilitative services provided in this case were provided by both companies at an identical location. In reaching this conclusion, the Court is mindful of its obligation to liberally construe the provisions of USERRA in favor of Plaintiff. See, e.g., Clegg v. Ark. Dept. of Correction, 496 F.3d 922, 931 (8th Cir.2007) ("Because USERRA was enacted to protect the rights of military service members and veterans it is construed broadly and `in favor of its military beneficiaries.'"); Coffman, 411 F.3d at 1238 ("USERRA `is to be liberally construed for the benefit of those who left private life to serve their country.'" (citations omitted)); Gordon v. Wawa, Inc., 388 F.3d 78, 81 (3d Cir.2004) ("[W]e construe USERRA's provisions liberally, in favor of the service member."); Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312-13 (4th Cir.2001) ("Because USERRA was enacted to protect the rights of veterans and members of the uniformed services, it must be broadly construed in favor of its military beneficiaries."); Chance v. Dallas County Hosp. Dist., 176 F.3d 294, 296 n. 14 (5th Cir.1999) ("The legislative history does reveal that the USERRA is to be `liberally construed.'"); McGuire v. United Parcel Serv., 152 F.3d 673, 676 (7th Cir.1998) ("USERRA is to be liberally construed in favor of those who served their country."). This obligation for liberal construction does not, however, require the Court to discard traditional concepts of fairness and reasonableness in a strained effort to find liability where none actually exists. See, e.g., Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946) (finding that liberal construction did not warrant the "distort[ion]" of the language of a USERA precursor); Aull v. McKeon-Grano Assoc., Inc., No. 06-2752, 2007 WL 655484, at *6 (D.N.J. Feb. 26, 2007) ("[E]ven a liberal construction [of USERRA] must have some limits."). On the undisputed facts of this case, Plaintiff was an employee of Progressive. She was assigned to work at Green Hills, but the terms of her employment, her rate of pay, benefits, schedule, and seniority were entirely dictated by Progressive. She could only be disciplined or terminated by Progressive. Indeed, the Court is unaware of any obligation by Progressive to maintain Plaintiffs employment at Green Hills, as opposed to at some other location where Progressive had contracted to provide services. Moreover, neither Plaintiff nor Progressive had any relationship with RehabCare. RehabCare did not assume Progressive's contract with Green Hills. It did not buy any equipment from Progressive or hire any Progressive employees. Successor liability, as Plaintiff points out in her brief, was developed to prevent situations where "`the victim of the predecessor's behavior may be left without a remedy unless recourse against the successor is allowed.'" Pl.'s Br. at 13 (quoting Holland v. Williams Mountain Coal Co., 256 F.3d 819, 825 (D.C.Cir.2001)). Successor liability is "fair," however, partly because a business entity that steps into the shoes of another business entity knows, or reasonably should anticipate, that its actions may cause it to acquire both the benefits and the liabilities of the predecessor. To adopt Plaintiffs position and hold that RehabCare is Progressive's successor in interest based simply on the fact that each had a contract to provide substantively similar rehabilitation services at Green Hills would undermine this entire premise. That is, any service contractor could be found a successor in interest to virtually any predecessor contractor based, not on its own affirmative actions or decisions, but solely on factors and circumstances entirely external to that service contractor and entirely external to the decision to contract in the first instance. The repercussions of such an outcome are simply untenable.[16] Accordingly, the Court concludes as a matter of law that RehabCare is not a successor in interest to Progressive. It, therefore, cannot be held liable under USERRA for failing to "reemploy" Plaintiff in her former position at Green Hills. B. Plaintiffs Discrimination Claim under 38 U.S.C. § 4311 Plaintiff's Complaint also alleges that Defendant discriminated against her on the basis of her military service, in violation of 38 U.S.C. § 4311. Plaintiff specifically alleges in Count 1: 1) RehabCare is an "employer" as that term is defined by USERRA; 2) RehabCare denied Plaintiff employment, reemployment, or a benefit of employment; and 3) Plaintiffs military service was a motivating factor in Rehab-Care's decision to deny Plaintiff these employment opportunities. Compl. ¶¶ 23-27. USERRA provides: (a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation. . . . (c) An employer shall be considered to have engaged in actions prohibited— (1) under subsection (a), if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service. 38 U.S.C. § 4311 (emphasis added). The Eighth Circuit articulated the standards for evaluating a USERRA discrimination claim in Maxfield v. Cintas Corp. No. 2: "USERRA, enacted in 1994 to improve the Veterans' Reemployment Rights Act (`VRRA'), prohibits employment discrimination on the basis of military service." Gagnon v. Sprint Corp., 284 F.3d 839, 852 (8th Cir.2002), abrogated on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). An employer violates USERA "when a person's membership in the uniformed services is a motivating factor in the employer's action, `unless the employer can prove that the action would have been taken in the absence of such membership, ... or obligation for service.'" Id. (quoting 38 U.S.C. § 4311(c)(1)). "Unlike the McDonnell Douglas framework [utilized in Title VII claims], the procedural framework and evidentiary burdens set out in section 4311 shift the burden of persuasion, as well as production, to the employer." Id. at 854. Under USERRA, an employee must make "`an initial showing... that military status was at least a motivating or substantial factor in the [employer's] action.'" Id. (quoting Sheehan v. Dep't of Navy, 240 F.3d 1009, 1014 (Fed.Cir.2001)). If the employee makes such a showing, "`the [employer] must prove, by a preponderance of evidence, that the action would have been taken despite the protected status.'" Id. (quoting Sheehan, 240 F.3d at 1014). 427 F.3d 544, 551 (8th Cir.2005). Plaintiff contends that it is apparent from the record that Plaintiff's military service was a "motivating factor" in Defendant's employment decisions. It is not entirely clear, however, precisely what employment decision Plaintiff contends Defendant made in a discriminatory fashion. Presumably, Plaintiff objects to either Defendant's decision not to "reemploy" her under USERRA or Defendant's decision not to hire her in the event that it was not obligated to "reemploy" her. Plaintiff argues that a reasonable jury could find that "the contract signed by Defendant would have permitted it to hire Plaintiff at her former and requested rate of $51.28/hour and that Defendant's inconsistent reasons for refusing to do so could be masking a discriminatory animus toward Plaintiff based on her military status." Pl.'s Br. at 32. As noted supra, in all her interactions with RehabCare, Plaintiff was insistent that she had a right to be "reemployed" at the Green Hills facility, pursuant to UERRA, on terms generally equivalent to those she enjoyed at Progressive.[17] Specifically, Plaintiff requested a "PRN"[18] position at a rate of $65 per hour, though at some point in time she did reduce her request to $51.28 per hour with additional benefits.[19] In the meeting between Violette and Plaintiff on July 27, 2007, Violette had three offers of employment to present to Plaintiff, one for full time employment, one for part time employment, and one for PRN status.[20] Def.'s Material Facts ¶ 57. During the meeting, Violette informed Plaintiff that RehabCare did not believe that it had an obligation to "reemploy" her under USERRA, but that the offers of employment were "good, fair rates, market rates. . . ." Def.'s Supp.App. (Violette Dep. at 72). Plaintiff declined to hear the offers, maintaining that "if they are not going to honor the USERRA law and reinstate me into my job that I had prior to leaving, I didn't want to hear the offer." Hr'g Tr. at 83; see also Def.'s Supp.App. (Pl.'s Dep. at 116-17) ("I didn't ever talk to anyone at RehabCare on specifics of an offer. Melissa and I decided that if, you know, they weren't going to recognize UERRA, we wouldn't talk about an offer because that was—I didn't feel—I felt I should be coming back into my job, not an offer."). It was only after filing the present lawsuit that Plaintiff heard from her attorneys what the offers were, though she declined to accept them even at that point in time. Def.'s Supp.App. (Pl.'s Dep. at 116-17) ("My attorney has talked to RehabCare about an offer later."). As discussed extensively in the previous section, Plaintiff was incorrect in her belief that RehabCare was her "employer" for purposes of USERRA "reemployment" under § 4312. Hence, RehabCare was entirely warranted in declining to "reemploy" Plaintiff on terms and conditions that were the same or equivalent to those Plaintiff enjoyed at Progressive. Plaintiffs claim, accordingly, could only survive if Rehab-Care, motivated at least in part by a discriminatory animus toward Plaintiffs military service, "denied initial employment" to her. The facts are clear, however, that RehabCare did not deny Plaintiff initial employment. It made every effort to offer Plaintiff the position she sought, but Plaintiff refused to even hear the offers, let alone to entertain them.[21] The Court also rejects Plaintiff's contention that comments by RehabCare employees support a conclusion that Defendant's decisions regarding employing her were motivated by military discrimination. Plaintiff cites the following "facts" in support of this proposition: 1) Defendant viewed Plaintiff and her claims under UERRA as a "distraction"; 2) Defendant made negative comments about Plaintiff and her assertion of USERRA rights; 3) Defendant developed a "game plan" in 2007 to deal with Plaintiff but none of its employees remember what that "game plan" was or who developed it; and 4) Defendant referred to Plaintiff as "beloved" by Copple and referred to not hiring her as a "bomb" to be dropped on Copple. When viewed in context, however, the comments to which Plaintiff refers do not support a discriminatory animus, but rather actually reveal significant efforts by RehabCare to employ Plaintiff under mutually agreeable terms pursuant to Rehab-Care's contract to provide services at Green Hills. For example, the "distraction" and "gameplan" references were made in response to an email from Violette to Curtis Davies ("Davies"). Violette told Davies that "[Plaintiff] called me again just now and wanted to remind me about USERRA.... As she is really going to push this USERRA thing and is confident that it includes her situation I will probably need your help Curt in handling this when the time comes." Pl.'s App. at 204. Davies replied: Let's stick to our gameplan. Don't get distracted by her throwing out USERA language. USERRA requires her employer to reemploy her. She has never worked for us. Once we have the financials and the Performa on this facility, we will determine rates of pay for those coming to work for us using the normal process. Id. Similarly, Plaintiff's claim of "negative comments" is a mischaracterization of the record. Plaintiff specifically references a comment that Plaintiff was "holding the contract hostage." The actual context of the comment, however, reveals that RehabCare had become aware of Plaintiff's demand for $65 per hour and was still attempting to finalize its contractual agreement with Green Hills, knowing that Copple wanted Plaintiff to continue providing rehabilitation services at Green Hills. Pl.'s App. at 206-07. Colleen Jones ("Jones") stated that if Plaintiff "attempts to hold this contract `hostage' for $65/hr," Jones had been instructed to contact Life-Care and "they will speak directly with Rod [Copple]." Id. at 206. And Jones' reference to "Copple's `beloved Pam,'" and a "bomb," when placed in full context, was clearly an effort to ensure full disclosure in the ongoing negotiations between Green Hills and RehabCare: "Does Rod [Copple] know and understand that we may not hire her if she won't come down on her rate? I wouldn't want Rod to tell [LifeCare] we `tricked' him into signing the contract and then he doesn't get his beloved Pam because we waited until the ink was dry to drop the bomb." Pl.'s App. at 209. Though perhaps distasteful or inarticulately stated, the Court concludes that no reasonable jury could find that such comments are indicative of discrimination. IV. CONCLUSION For the reasons stated herein, Defendant's Motion for Summary Judgment (Clerk's No. 33) is GRANTED as to both Counts of Plaintiffs Complaint. IT IS SO ORDERED. NOTES [1] Plaintiff joined the Army Reserves in 1999 as a First Lieutenant and currently holds the rank of Major. Def.'s Material Facts ¶ 27. She was notified in November 2005 that she would be activated for military duty on March 23, 2006. Id. ¶ 28. She sought, and was granted, a military leave of absence from Progressive. Id. ¶ 29. [2] Defendant contends that Progressive was not qualified to provide rehabilitation services for an SNF, whereas Plaintiff argues that Progressive simply had staffing concerns and, therefore, declined to provide services for SNFs. See Def.'s Material Facts ¶ 33; Pl.'s Response ¶ 33. The reason for Progressive's termination of services at Green Hills is not material to the present dispute. [3] While Plaintiff admits that Progressive's contract with Green Hills terminated in June 2007, Plaintiff contends that Progressive nonetheless continued to provide rehabilitation services at Green Hills until July 28, 2007. Copple testified at the Hearing on Plaintiff's Motion for Injunction that Progressive actually subcontracted with a physical therapy group in Boone, Iowa to provide this "transitional" coverage. See Hr'g Tr. at 149. [4] Deerfield is a retirement community located in Des Moines, Iowa. Def.'s Material Facts ¶ 10. [5] "Terminal leave" is leave time Plaintiff accrued that she was permitted to take prior to the formal termination of her active duty status. According to Plaintiff, she was "free to begin employment with a civilian employer" once she commenced terminal leave. Pl.'s Material Facts ¶ 78. [6] Plaintiff contends that Progressive forwarded the letter to RehabCare. Pl.'s Material Facts ¶ 78. Defendant contends that Copple forwarded the letter to RehabCare. Def.'s Response to Pl.'s Material Facts ¶ 78. In fact, an e-mail from Copple to Colleen Jones stated that Copple had "faxed and emailed [Plaintiff's letter] to [Progressive's owners] (Joe and Steve)." Pl.'s App. at 220. Regardless, there is no real dispute that RehabCare was aware that Plaintiff believed that whatever company took over rehabilitation services at Green Hills would be obligated to "reemploy" her under USERRA. Indeed, Plaintiff talked with Melissa Violette, the regional manager of operations for RehabCare, in June 2007. Violette told Plaintiff that RehabCare was aware that Copple wanted Plaintiff to return to Green Hills and that RehabCare was interested in discussing the matter with Plaintiff. Hr'g Tr. at 38. [7] The Leib test puts forth seven factors for consideration of whether one entity is a successor in interest to another, while the Department of Labor regulation puts forth only six factors. Two of the Leib factors, however, "use of the same plant" and "similarity of jobs and working conditions," are combined in the second factor of the Department of Labor regulation, which asks "[w]hether the current employer uses the same or similar facilities, machinery, equipment, and methods of production." Compare Leib, 925 F.2d at 247 with 20 C.F.R. § 1002.35. [8] The district court in Coffman determined that an analysis of the Leib factors "is unnecessary and improper when no merger or transfer of assets even transpired between the two subject companies." Coffman, 411 F.3d at 1237. [9] Plaintiff denied Defendant's assertion that "Progressive has no current contractual relationships with Green Hills, Deerfield, or RehabCare," asserting that the contract between Progressive and Green Hills provides for "a continuing contractual duty to provide records as needed." Pl.'s Response ¶ 19. The Court finds this minimal continuing duty immaterial to the successor in interest analysis. Furthermore, Plaintiff's denial is more appropriately a "qualification," given Plaintiff's own testimony at the Hearing on Plaintiff's Motion for Preliminary Injunction that Progressive has no continuing relationship at all with Green Hills. See Hr'g Tr. at 60. [10] Plaintiff testified as follows at the Hearing on Plaintiff's Motion for Preliminary Injunction: Q. Okay. Progressive never owned any portion of Green Hills assets; is that correct? A. Not to my knowledge. Q. And never bought any equipment for— from Green Hills, correct? A. Not to my knowledge. Q. And then conversely, Green Hills, never owned any portion of Progressive; correct? A. Not that I'm aware of. Q. To your understanding the only relationship that ever existed between Green Hills and Progressive was this independent contractor relationship; correct? A. That's my understanding. Hr'g Tr. at 62-63. [11] See also Hr'g Tr. at 66 (Plaintiff's testimony: Q: "Progressive had its own policies and procedures how things were done, correct?" A: "Yes." Q: And ... RehabCare has its own policies and procedures on how things were done?" A: "Yes."). [12] Much of the therapy equipment employed by both Progressive and RehabCare was owned exclusively by Green Hills. [13] COMTek even agreed to honor MPRI's "incumbent tenure for seniority based benefits." Murphree, 460 F.Supp.2d at 709. [14] In Smegal, a case arising under Labor Management Relations Act ("LMRA"), the sole question before the court was whether Gateway Foods of Minneapolis, Inc. was a successor employer to National Super Markets, Inc. ("NSM"), such that it was obligated to adhere to the terms of a collective bargaining agreement between NSM and a local union. 819 F.2d at 192. The Eighth Circuit Court of Appeals relied on the fact that the "major test for a successor employer is whether there is substantial continuity between the new operation and the old, particularly with regard to the employees." Id. at 193. The Court of Appeals found that the district court was not clearly erroneous in finding that Gateway was not a successor to NSM, since the NSM employees made up only a minority of the new group, because their work and working conditions had changed, and because the services offered had changed. Id. [15] The Court reiterates its conclusion from the Order on Plaintiff's Motion for Preliminary Injunction that this factor weighs only marginally in favor of Plaintiff. Much testimony was presented about efforts by Green Hills to become a skilled nursing facility. Plaintiff admits that Progressive ended its contract with Green Hills because it was either unable or unwilling to provide services to Green Hills once Green Hills became a skilled nursing facility. To become a skilled nursing facility under Medicare, Green Hills needs a separate Medicare certification, and has many additional requirements, over and above those that it made available on an outpatient basis. Hr'g Tr. at 69. Plaintiff admitted further that the rehabilitation services provided to a skilled nursing facility would likely be more frequent than for outpatient services, and that the paperwork is monitored more closely. Id. at 69. Progressive provided outpatient services as part of its contract with Green Hills, but did not provide skilled nursing facility services. Id. at 64. Though Green Hills had not yet become a skilled nursing facility at the time of Plaintiff's return from active duty, and indeed has not to date become a skilled nursing facility, this difference between services provided by Progressive and those that will eventually be provided by RehabCare tempers to some extent the conclusion that the similarity of products and services factor weighs in Plaintiff's favor. Reynolds, 531 F.Supp.2d at 1064 n. 8. [16] For example, service contractors would be loathe to enter into contract without a full inquiry and investigation into every other vendor who previously provided like services for fear of some unforeseen liability arising under the doctrine of successor in interest. [17] As noted previously, at the time of her deployment, Plaintiff was receiving $51.28 per hour as an employee of Progressive. She worked 30 hours per week, had three weeks of annual vacation, and was allowed to participate in the Progressive's 401K program. Hr'g Tr. at 39 [18] A "PRN" physical therapist is employed on an "as needed" basis and generally receives a higher rate of pay in lieu of benefits. Def.'s Material Facts ¶ 51; Pl.'s Response ¶ 51. [19] Plaintiff testified that she requested $65 per hour because PRN positions do not get benefits and because she had been told that "if you don't receive any benefits, that [30% should be added] on to your basic pay." Hr'g Tr. at 37. Thus, in Plaintiff's mind, $65 per hour in a PRN position would be approximately equivalent to her previous rate of pay with benefits. [20] RehabCare's offers of employment were for: "$35/hr with benefits after 32 hours/ week"; "part time position at $40/hr with partial benefits (vacation, Professional Choice Account)"; and "on-call PRN position at $45/hr without benefits but with 401(k) that matches 50% of 1 st 4%." Pl.'s App. at 226; see also Def.'s Supp.App. (Violette Dep. at 71-72). [21] To the extent that Plaintiff argues that Defendant deprived her of a "benefit of employment" or of "initial employment" by making "lowball" pay offers, her claim also must fail. The evidence in the record supports a finding that RehabCare attempted to make offers of employment to Plaintiff that provided reasonable compensation by RehabCare's standards. See Def.'s Material Facts ¶¶ 49 ("In the geographic area in question, which includes the Green Hills Retirement Community in Ames, Iowa, RehabCare's highest paid full time physical therapist makes $36.00 per hour."); 50 ("RehabCare currently has no part-time physical therapists working in this geographic area."); 51-54 (providing that PRN physical therapists in this geographical region have a "recommended target hourly rate" of $40.00 per hour according to Violette, but that a few PRN therapists make $50.00 or more per hour and that one makes $75 per hour, but is utilized only occasionally in "dire" situations); 55 (discussing that one factor considered in determining RehabCare's wage rates is "the hourly reimbursement rate to which RehabCare is entitled under its contract with a facility such as Deerfield"). The mere fact that Plaintiff did not believe the offers were reasonable once she actually found out what they were during the course of the present litigation does not automatically give rise to an inference that a jury could conclude the offers were unreasonable, let alone that they were unreasonable due to a discriminatory animus. Regardless, even under the most liberal construction of the USERRA statute, the Court is hard-pressed to say that the content of RehabCare's offers is even relevant given that Plaintiff refused to hear them in the first instance.

272 Kan. 1298 (2002) 38 P.3d 640 In the Matter of LARRY W. WALL, Respondent. No. 86,975. Supreme Court of Kansas. Opinion filed January 25, 2002. Alexander M. Walczak, deputy disciplinary administrator, argued the cause and was on the formal complaint for petitioner. Stephen M. Joseph, of Wichita, argued the cause and was on the briefs for respondent, and Larry W. Wall, respondent, argued the cause pro se. Per Curiam: This is a contested attorney discipline case filed by the office of the Disciplinary Administrator against the respondent, Larry W. Wall, an attorney admitted to the practice of law in the State of Kansas. All exhibits were admitted by agreement of counsel. Other evidence was submitted by stipulation. Respondent was the only witness. The Hearing Panel concluded that the respondent violated Kansas Rules of Professional Conduct (KRPC) 1.3 (diligence) (2001 Kan. Ct. R. Annot. 323), KRPC 1.4(a) (communication) (2001 Kan. Ct. R. Annot. 334), KRPC 1.15(a) (safekeeping property, separate account) (2001 Kan. Ct. R. Annot. 376), and KRPC 1.15(b) (safekeeping property, promptly deliver funds). The panel recommended public censure. Findings of Fact The respondent takes exceptions to three of the panel's findings of fact and conclusions of law. The panel's findings are as follows (those findings and conclusions to which the respondent takes exception are marked with an asterisk): "The Disciplinary Administrator and the Respondent stipulated to the following facts: "1. Larry W. Wall is an attorney at law .... His last registration address with the Clerk of the Appellate Courts in Kansas is [in] Wichita, Kansas ... . "DA7956 (Complaint of Katha Helms) "2. On October 1, 1997, Katha J. Helms was severely injured in an automobile *1299 accident when her automobile left K-99 Highway at a bend between Howard and Severy, Kansas. "3. As a result of this accident, on June 7, 1999, Helms retained Greg Lower as her attorney. "4. On July 15, 1999, Lower wrote to Helms telling her that he intended to refer her case to Wall. Lower asked Helms to sign a copy of the letter and return it to him if she agreed to the referral. "5. On July 15, Lower spoke to Wall concerning Helms' accident and injuries and advised Wall that he planned to recommend to Helms that her case be referred to Wall for representation. "6. On July 16, 1999, Lower wrote to Wall that Helms had orally agreed to the referral. "7. On August 23, 1999, Lower forwarded Helms' written approval of the referral and Lower's office file to Wall. The file contained the investigation report on Helms' accident, nine other auto accident investigation reports occurring in the same general area as Helms' accident, and several letters concerning requests for accident investigation reports to and from various law enforcement agencies, among other things. "8. On October 2, 1999, the [s]tatute of [l]imitation had run in Ms. Helms' case. "9. Prior to the referral of the case to Wall, Lower spoke with Jay Pfeiffer, an engineering expert, about investigating the accident. "10. On November 10, 1999, Steve Bough, an attorney in the firm of Shamberg, Johnson & Bergman, telephoned Wall's office inquiring about the Helms case. Bough left a telephone message for Wall. "11. On reading the telephone message, Wall discovered that the [s]tatute of [l]imitations had run on Helms' claim. "12. On December 20, 1999, Steve Bough telephoned Wall again inquiring about the Helms case. "13. On January 14 and February 28, 2000, Lynn Johnson, a partner in the firm of Shamberg, Johnson & Bergman, wrote to Wall about the Helms case. "14. On February 22, 2000, Wall told Lower that Wall had missed the statute of limitations in Helms' case. "15. On February 23, 2000, Wall wrote to Helms stating that the statute of limitations had run in her case and that she could file a claim against him with his malpractice carrier. "16. Helms did not receive Wall's letter of February 23, 2000, because Helms had moved and was no longer using the post office box address she provided to Lower. "17. On May 15, 2000, Lynn Johnson again wrote to Wall inquiring about Helms' case. "18. On June 19, 2000, Helms called Lower. During their telephone conversation, Helms learned for the first time that the statute of limitations had run in her case. *1300 "19. On June 19, after Helms spoke to Lower, Helms telephoned Wall. Wall was not available and Helms left a message for him. "20. On June 23, 2000, Wall returned Helms' telephone call. This telephone conversation was the first personal contact that Wall had with Helms since accepting the referral of her case in July, 1999. "21. On June 23, 2000, Helms filed a complaint with the Disciplinary Administrator. "22. On July 6, 2000, Wall sent a copy of his February 23, 2000, letter to Helms as his response to Helms' complaint. [We note that the letter in the record is dated February 23, 1999.]" "DA7472 (Complaint of Charles Wall) "23. Erma B. Wall, a widow, died on January 23, 1998. Erma B. Wall had two children who survived her: Larry Wall [respondent] and Charles Wall. "24. Wall drafted his mother's will. Wall was the executor under his mother's will. "25. After their mother's death, Wall and his brother decided not to probate their mother's will because of the value of the estate. "26. Under the provisions of Mrs. Wall's will, Wall and his brother were to share equally in the estate. Additionally, a statement signed by Mrs. Wall and attached to her will provided for specific personal property bequests to the two brothers. "27. On January 23, 1998, three days subsequent to his mother's death, Wall opened a non-interest bearing checking account in his sole name and, using a power of attorney, transferred a $4,288.70 certificate of deposit owned by his mother, $1,846.32 from his mother's checking account, and $1,618.87 from his mother's savings account into the new account. In subsequent months, Wall also collected other monies coming from his mother's death and deposited those in that non-trust and non-interest bank account. "28. The bank account opened by Wall was not labeled as a trust account, but no other money was commingled with the money from his mother's estate. Some money in the account was used to pay Mrs. Wall's funeral expenses, to pay her outstanding debts, and to pay the costs of preparing Mrs. Wall's house for sale. Wall did not withdraw any money from that account for his personal use until all the remaining money in the account was divided between Wall and his brother. None of the money in the account was misused or misappropriated by Wall. "29. Wall caused a quitclaim deed dated January 4, 1998, to be filed with the Office of the Register of Deeds. The deed conveyed his mother's house and property to Wall and his brother. The deed was recorded 3 hours and 29 minutes after Mrs. Wall's death on January 23, 1998. Mrs. Wall did not sign the deed. Wall does not remember whether he signed the quitclaim deed for his mother, but Wall did have a durable power of attorney that permitted him to do so prior to her death. *1301 "30. Within a few months after Mrs. Wall's death, Wall and his brother each received his share of their mother's personal property and his share of the proceeds from the sale of their mother's house. Sometime during the period of June 1998, to July 2000, Charles Wall and his attorney made demands for Charles Wall's share of the money held by Wall in the segregated bank account. "31. On July 17, 2000, sixteen months after the death of Erma B. Wall and following questioning of Wall during an investigation of an ethical complaint made by Charles Wall, Wall distributed to Charles Wall his share of the money held in the checking account. The amount sent to Charles Wall was $1,749.80, which included a small amount of interest. The check was accompanied by a letter from Larry Toomey, who was representing Larry Wall, and a document prepared by Toomey that was an accounting of Mrs. Wall's property. "32. On July 26, 2000, Toomey again wrote to Charles Wall sending him an additional $666.99 representing 10 percent annual interest on his share of the remaining money from the bank account and a credit for a copying expense previously charged equally to Larry Wall and Charles Wall. "C. STIPULATED VIOLATIONS "The respondent stipulated that his conduct violated the following rules: "Rule 1.3, Diligence. By missing the statute of limitations in the Helms case, Respondent was not diligent. "Rule. 1.4, Communication. By failing to communicate with Ms. Helms, the Respondent violated Rule 1.4(a). "Rule 1.15 (a). Safekeeping Property. Respondent violated Rule 1.15(a), dealing with the safekeeping of property, by not identifying as a trust account the account into which he deposited his mother's funds. *Respondent also stipulated to a violation of Rule 1.15(b), in that funds from the house closing upon the sale of his mother's house were not promptly delivered to the Respondent's brother. "D. CONCLUSIONS OF LAW "Based upon the Respondent's stipulations in the above findings of fact, the hearing panel concludes that the Respondent violated Kansas Rules of Professional Conduct 1.3, 1.4(a), 1.15(a) and 1.15(b), as follows: "1. Attorneys must act with reasonable diligence and promptness in representing their clients, as required by KRPC 1.3. In the Katha Helms complaint, Respondent received the files and materials in sufficient time for him to act to avoid the tolling of the statute of limitations. Respondent's failure to act with reasonable diligence and promptness resulted in the barring of any claim which Katha Helms may have had for recovery. "2. Lawyers are required to keep clients reasonably informed about the [status] of the matter handled by the attorney, as required by Rule 1.4. Respondent failed to communicate with Katha Helms following the receipt of her file, and it was not until sometime following the lapse of the statute of limitations that Respondent finally communicated with his client, and such failure of communication constituted a violation of Rule 1.4(a). *1302 "3. Lawyers are required to hold the property of clients or third persons that is in a lawyer's possession in connection with the representation separate from the lawyer's own property. The client's property is to be identified and appropriately safeguarded. Respondent failed to identify the account as a trust account and maintained the account solely in his own name. "4. Upon receiving funds or other property in which a client or third party has an interest, a lawyer is required by Rule 1.15(b) promptly to notify the client or the third person. Respondent failed to notify his brother and failed to pay his brother's share of the funds from the sale of their mother's house in a prompt fashion. "The Disciplinary Administrator urges that Respondent additionally violated Rule 8.1(a) by knowingly making a false statement of material fact and Rule 8.4(c), by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, both relating to a letter written by the Respondent which the Disciplinary Administrator argues states that Katha Helms' file was sent to another lawyer for handling. The panel is not persuaded by the evidence and therefore declines to find that Respondent's conduct violated either Rule 8.1 or 8.4. "Respondent stipulated that he used a power of attorney, following his mother's death, to obtain the transfer of funds from his mother's accounts over to a new bank account established by the Respondent. Respondent also testified that subsequent to his mother's death he used the same power of attorney to transfer title to a motor vehicle to his brother. Under Kansas law, a power of attorney terminates upon the death of the principal, and upon the death of the principal, the attorney in fact has no authority whatever to act as agent on behalf of the principal. The panel is of the opinion that Rule 4.1, Truthfulness in Statements to Others, may have been violated by this conduct by Respondent. Rule 4.1 states that in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a fraudulent act by a client. In using the terminated power of attorney to transfer the funds and obtain the transfer of the motor vehicle title, Respondent arguably violated Rule 4.1. For reasons more fully explained in its recommendations, the panel declines to find a violation of Rule 4.1. "E. RECOMMENDATIONS "The Disciplinary Administrator urges the panel to discipline Respondent by a definite suspension from practice, followed by suspension of that discipline pursuant to the terms of a proposed written plan of probation submitted by the Respondent at the time of hearing. The Respondent through counsel urges that the discipline imposed should be a suspension of imposition of discipline for a period of two years to determine whether Respondent abides by the terms of his proposed written plan of probation. "In the Katha Helms complaint, Respondent missed the statute of limitations, and the panel finds that Respondent at all times has admitted that error. The *1303 evidence indicates that the missing of the statute of limitations was a mistake caused by how the Respondent's calendar system was maintained. The panel finds that the mistake was not caused by lack of diligence or disregard for a client matter by the Respondent. The panel is of the opinion that lawyers can make mistakes which may constitute malpractice and subject the attorney to a potential claim for damages without those mistakes constituting a violation of the Kansas Rules of Professional Conduct. The panel expresses no opinion as to whether it would have found a violation of Rule 1.3 in the absence of stipulation by the parties, but in view of the stipulation of the parties, the panel accepts the stipulation of violation of Rule 1.3. "With respect to the violation of Rule 1.4, lack of communication, the panel is of the opinion that the lack of communication was at least in part caused by the mistake made when the matter was fixed on Respondent's calendar. There is no suggestion that the Respondent ignored or failed to communicate with Katha Helms, other than by virtue of the mistake that led Respondent to believe he had many months to work on Respondent's case. The panel therefore accepts the stipulated violation of Rule 1.4 without expressing an opinion as to whether it would independently have found a violation. "The violations of Rule 1.15 are troubling because the violations show the all-too-frequent pattern of a lawyer who has confined his practice to an area of narrow specialization and then upon the death of a close relative seems to believe that he is qualified to act with respect to the decedent's estate. The evidence did not so indicate in clear language, but inferences could be drawn from Respondent's testimony that he may have been unaware that his mother's durable power of attorney terminated upon her death. Similarly, Respondent appeared ignorant about the handling of his mother's funds. Respondent testified that his mother's estate represented the only will which he had drawn and the only estate which he handled, and the truth of those statements was confirmed by Respondent's inept attempts to deal with and handle the estate. Respondent attempted to practice in an area in which he was unfamiliar, and as a lawyer with 30 years of experience he should have known that. "In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereafter `Standards') as follows: Rule 4.14 deals with failure to preserve a client's property and states, `Admonition is generally appropriate when a lawyer is negligent in dealing with client property and causes little or no actual or potential injury to a client.' "Standard 4.43 deals with lack of diligence and states, `Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.' "Matters in Aggravation "a. Prior Disciplinary Offenses. Respondent was previously disciplined January *1304 12, 2001 for a violation of Rule 5.1, Responsibilities of Partner or Supervisory Lawyer. "b. Pattern of Misconduct. Both of these matters occurred about the same time and constitute a pattern. "c. Multiple Offenses. There were multiple offenses of the KRPC. `"d. Vulnerability of Victim. Katha Helms, as the victim of a serious personal injury, was obviously incapable of handling restitution and compensation on her own behalf and was therefore vulnerable. "e. Substantial Experience in the Practice of Law. As a practitioner with more than 30 years of experience, Respondent is experienced in the practice of law. "Matters in Mitigation "a. Absence of Dishonest or Selfish Motive. The panel finds that there was no dishonest or selfish motive. "b. Personal or Emotional Problems. The panel finds that during this period of time Respondent was undergoing martial difficulties, he was obviously upset by his mother's death, and he was suffering from alcoholism. "c. Cooperation During Hearing. The Respondent appeared cooperative at the hearing, and the panel was advised by the Disciplinary Administrator that Respondent has been cooperative throughout the disciplinary proceeding. "d. Mental Disability or Chemical Dependency. Respondent was suffering from alcoholism. "e. Remorse. Respondent exhibit[ed] remorse at the time of the hearing which the panel believed was genuine. "Additionally, the panel finds that with respect to the Wall complaint, there was no harm caused by Respondent's conduct. Previous family disagreements and feuds may have contributed both to the action of the complainant and to Respondent's response to his brother's demands, which would be unlikely to affect Respondent's practice of law as regards unrelated third parties. With respect to the complaint of Katha Helms, there was evidence to the effect that Ms. Helms' personal injury action might not have been a valid claim; suffice it to say that to the extent Ms. Helm's action may have been successful, she would appear to have an action against Respondent for malpractice. "It is the recommendation of [the] hearing panel that Respondent be disciplined by public censure. "Costs are assessed against the Respondent in such amount as shall be certified by the Office of the Disciplinary Administrator." The following was added to the panel's report: "ADDENDUM TO FINAL HEARING REPORT "This hearing on this matter was held March 9, 2001. The preliminary draft of the hearing report was completed and circulated to the panel members for comment on March 14. The final draft was completed and sent for signature on March 23. *1305 "On March 15, six days following the hearing and after the preliminary draft of the hearing report had already been mailed, the panel received two letters submitted by the Respondent, apparently intended as part of his evidence in mitigation. "On March 29, the panel received some 15 additional letters, ranging in date from March 14 through March 27. These letters were also apparently submitted as further evidence in mitigation. "The panel wishes to make two points regarding the submission of materials following the close of hearing: "1. Permission and Date. Permission should be obtained by a party prior to the close of the hearing to submit anything into evidence, whether in mitigation or otherwise, subsequent to the close of the hearing. A firm date should also be fixed by which time all documents to be submitted will be received by the panel. The panel has tried to be prompt in rendering its opinion; the panel now received two separate mailings of matters in mitigation, and as the result the panel has been required to review these matters and reconsider the evidence submitted in mitigation. "In the present matter, the panel still does not know whether it has received all of the matters in mitigation which the Respondent wishes to submit. The panel does not regard it as being in the best interest of any Respondent for the panel to hold up indefinitely on rendering its written opinion with the expectation that someday the Respondent may wish to submit further evidence in mitigation. "2. Deliberative Nature of Opinion. The Board of Discipline for Attorneys is intentionally structured by our Supreme Court to sit in deliberative bodies of three to hear the evidence and to reach a deliberative decision based upon the counsel of all three of the members. Following the conclusion of hearing, panel members meet to deliberate and express their ideas and opinions and arrive at a reasoned conclusion that represents the judgment of all three panel members. Panel members set aside time for this purpose so that undivided attention can be focused on the evidence presented at the hearing. "The benefit of this deliberative process is defeated by Respondents who submit documents to the panel members following the conclusion of the hearing. "To enable the deliberative nature of the hearing panel to be fulfilled, matters in mitigation must be submitted by [no] later than the close of the hearing unless other arrangements are permitted by the hearing panel. "We have reviewed all of the evidence in mitigation and find that no revision of our previously submitted final hearing report is required." Respondent's Exceptions The respondent takes exception to three statements made by the hearing panel in the final hearing report. These exceptions present three issues for review: (1) Did the panel err by finding that the respondent violated KRPC 1.15(b)? (2) Did the panel err in finding *1306 that Katha Helms was "vulnerable" within the meaning of Section 9.22(h) (aggravating factors) of the ABA Standards for Imposing Lawyer Sanctions (1991)? and (3) Was the panel's recommended discipline excessive? The applicable standards of review are as follows: "`In disciplinary matters, we have a duty to examine the evidence and determine for ourselves the judgment to be entered. Although the report of the disciplinary panel is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicted testimony. [Citations omitted.] We apply these rules in considering the evidence, the findings of the panel, and the arguments of the parties in making our determination of whether violations of KRPC exist, and, if they do, deciding upon the appropriate discipline to be imposed.'" In re Zimmerman, 270 Kan. 855, 858, 19 P.3d 160 (2001) (quoting In re Berg, 264 Kan. 254, 269, 955 P.2d 1240 [1998]). KRPC 1.15(b) The respondent claims that in the final hearing report, the hearing panel incorrectly said that he stipulated "that funds from the house closing upon the sale of his mother's house were not promptly delivered to the Respondent's brother." He also claims that in the "Conclusions of Law" section of the report, the panel incorrectly said, "Respondent failed to notify his brother and failed to pay his brother's share of the funds from the sale of their mother's house in a prompt fashion." The respondent contends that his brother Charles Wall was paid his share of the house sale proceeds directly by the closing agent. The respondent's testimony before the panel confirms this assertion. The Disciplinary Administer concedes that the quoted portions stated above do not accurately represent the conduct that violated KRPC 1.15(b) to which the respondent stipulated. However, the Disciplinary Administrator points out that at the hearing, the respondent admitted violating KRPC 1.15(b). Thus, the Disciplinary Administrator argues that the errors are clerical, harmless, and of no effect. At the hearing, the respondent's counsel said: *1307 "The other violation that we think probably occurred and we agree occurred with regard to 1.15 subsection(B) is this. The sequence of events that took place is relatively simple and we think and agree that it leads to a conclusion that Mr. Wall did not properly deliver to his brother his share of the funds in that segregated account.... There's been no claim by anybody that any of the property or proceeds from the sale of the house were delayed or not distributed appropriately." (Emphasis added.) Clarification developed during oral argument before this court. The Deputy Disciplinary Administrator said: "With respect to the first exception, the respondent is correct. The final hearing report inaccurately states in the stipulations of violations and the conclusions of law, that the respondent did not provide the proceeds of the sale of the house to his brother. That's inaccurate. What the final hearing report should state is that he did not provide in a timely manner the proceeds of the mother's checking and savings account." The panel accepted the respondent's admission to the violation of KRPC 1.15(b). The respondent points out that the funds distributed late to Charles totaled $1,687.05, plus interest. The respondent later paid him an additional $666.99, representing 10% annual interest on his portion of the remaining money from the bank account and a credit for a previous copying expense. The total amount of cash assets held by the respondent had totaled $7,753.93, out of which expenses were eventually paid. After Charles' complaint was filed, counsel was engaged to represent the respondent. The respondent's counsel advised him to do nothing while the investigation was ongoing. Then, John Seeber, the attorney investigating Charles' complaint, "made it crystal clear that he seriously considered this [nondistribution] to be a violation," so the respondent decided to go against his counsel's advice and distribute Charles' portion. Despite the panel's technical error concerning distribution of the funds from the sale of the respondent's mother's house, the respondent acknowledged that he violated KRPC 1.15(b) by failing to distribute Charles' share of the segregated account. See In re Rickman, 266 Kan. 658, 663, 972 P.2d 759 (1999) (recognizing a technical error in the panel's recitation of a date, but finding clear and convincing evidence to support the panel's findings). We find *1308 there is clear and convincing evidence supporting the panel's finding that the respondent violated 1.15(b). "Vulnerable" victim Next, the respondent argues that the panel incorrectly found "Katha Helms, as the victim of a serious personal injury, was obviously incapable of handling restitution and compensation on her own behalf and was therefore vulnerable." The ABA Standards permit consideration of the "vulnerability of [the] victim" as an aggravating factor: "Aggravation "9.21 Definition. Aggravation or aggravating circumstances are any considerations, or factors that may justify an increase in the degree of discipline to be imposed. "9.22 Factors which may be considered in aggravation. Aggravating factors include: (h) vulnerability of victim ...." The respondent argues that Helms was not permanently mentally or physically incapacitated by her injuries. However, he notes that she had "a metal jaw, a ruined right hip, and ... will have trouble having children." The respondent does not question that Helms was seriously and permanently injured in her accident, but he contends that her injuries were not the type that would make her especially vulnerable to the misconduct of a lawyer. The Disciplinary Administrator acknowledges that ABA Standard § 9.22(h) does not define the word "vulnerability." He argues that the application of the term is to be determined by the specific facts of a case. At the hearing, the Disciplinary Administrator argued that Helms was a "vulnerable" person: "Vulnerability of the victim, I think that applies only to Katha Hebb/Helms. She was vulnerable. She clearly ... did not know the statute of limitations had been missed until June 19th of 1999 when she had the conversation with attorney Greg Lower and then she telephoned the respondent. But up until that time, she was trusting her attorney that her attorney was going to represent her and she was injured." In addition, the Disciplinary Administrator argued that he did not think Helms was very "worldly" and that, although he was *1309 unsure of her education level, he did not think she was well-educated. The respondent argued that "vulnerability" means an "uneducated" person, "somebody who has a mental or emotional problem, someone who is very old, [or] someone who is very young." He observes that the Commentary to ABA Standard § 9.22, p. 49, cites People v. Lanza, 200 Colo. 241, 613 P.2d 337 (1980), as an example of "vulnerability of victim." Although the term "vulnerable" was not used in the opinion, the Lanza court observed that one of the victims was a widow in her early seventies, who was indigent, somewhat feeble, and had a poor grasp of the English language. 200 Colo. at 242. The respondent also cites cases from other jurisdictions. See People v. Grist, 948 P.2d 1020, 1020-21 (Colo. 1997) (lawyer abandoned clients in criminal, juvenile, and civil cases, and some of those clients were "vulnerable"); In re Basile, 714 So.2d 687, 688 (La. 1998) (victim of lawyer's misconduct included lawyer's own father); Matter of Discipline of Tanner, 960 P.2d 399, 402 (Utah 1998) (client was vulnerable due to his adversarial relationship with police, which may have led lawyer to believe client would avoid reporting lawyer's misconduct). The Disciplinary Administrator references our disciplinary opinions in which the panel has found clients to be vulnerable. See In re Coggs, 270 Kan. 381, 401, 14 P.3d 1123 (2000) (client was 90 years old and placed her trust in attorney who prepared her will and trust); In re Trickey, 268 Kan. 835, 838, 999 P.2d 964 (2000) ("all bankruptcy clients are financially vulnerable"); In re Cole, 268 Kan. 171, 175, 991 P.2d 422 (1999) (client did not have experience in the administration of a decedent's estate matters and relied completely on the advice and judgment of the attorney); In re Christians, 267 Kan. 240, 243, 978 P.2d 910 (1999) (client unsophisticated in bankruptcy matters and trusted attorney's professional expertise); In re Scimeca, 265 Kan. 742, 747, 962 P.2d 1080 (1998) (unsophisticated consumers of limited means); In re Anderson, 264 Kan. 758, 760, 956 P.2d 1330 (1998) (indigent clients); In re Berg, 264 Kan. 254, 278, 955 P.2d 1240 (1998) (emotionally distraught clients); In re Seck, 258 Kan. 530, 533, 905 P.2d 122 (1995) (client sustained permanent injuries and was not skilled or experienced in *1310 business matters or in handling litigation). However, none of the cited cases either involved a statute of limitations bar or an objection to the "vulnerability" finding. Helms relied upon her attorney, but was not informed that her claim was barred until months after the statute of limitations had run. The problem, as we see it, with applying vulnerability as an aggravating factor here is twofold. First, every personal injury plaintiff relies on counsel to protect his or her claim from being barred by the statute of limitations. Second, Helms did not appear before the panel. Thus, a traditional element of factfinding, listening, and observing as the witness testifies, is missing here. Helms' complaint was submitted by stipulation and agreement. We do not believe vulnerability is an appropriate aggravating factor here. Our conclusion is limited to the facts of this case. Our holding on vulnerability, however, does not affect our endorsement of the panel's recommendation on discipline. Recommended discipline The hearing panel recommended that the respondent be disciplined by public censure. The respondent recognizes negligence in handling the Helms matter and ineptness in the handling of his mother's estate. However, he contends that nobody suffered injury. The Disciplinary Administrator disagrees and argues that the respondent caused significant injury to his client, the public, the legal system, and the legal profession. ABA Standard § 4.43 deals with lack of diligence and says: "Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client." ABA Standard § 2.5 provides: "Reprimand, also known as censure or public censure, is a form of public discipline which declares the conduct of the lawyer improper, but does not limit the lawyer's right to practice." The Commentary to ABA Standard § 2.5 includes the following: "A reprimand is appropriate in cases where the lawyer's conduct, although violating ethical standards, is not serious enough to warrant suspension of disbarment.... A reprimand serves the useful purpose of identifying lawyers who *1311 have violated ethical standards, and, if accompanied by a published opinion, educates members of the bar as to these standards." p. 22. The respondent argues that ABA Standard § 2.6 (admonition) provides a more appropriate form of discipline. The Commentary to § 2.6 says, in pertinent part: "Admonition is the least serious of the formal disciplinary sanctions, and is the only private sanction.... Because imposing an admonition will not inform members of the public about the lawyer's misconduct, admonition should be used only when the lawyer is negligent, when the ethical violation results in little or no injury to a client, the public, the legal system, or the profession, and when there is little or no likelihood of repetition. Relying on these criteria should help protect the public while, at the same time, avoid damage to a lawyer's reputation when future ethical violations seem unlikely." The Disciplinary Administrator notes that the success of Helms' legal cause of action, had it gone to trial, is unknown. However, she clearly suffered serious injuries in her accident. As the Disciplinary Administrator observes, the respondent failed to fully investigate the merit of Helms' case, failed to keep her informed, and failed to meet the statute of limitations deadline. The statute ran on October 2, 1999. In his February 23, 2000, letter to Helms, the respondent said he was not convinced that she had a good claim because "it appears from the [accident] report that [Helms] simply missed the curve." However, the respondent acknowledged that he did not have Helms' version of events. At the disciplinary hearing, he admitted that he did not know if she "had a case" and had not analyzed the matter properly. With regard to Charles Wall's complaint, the Disciplinary Administrator notes that the respondent showed an unwillingness to distribute Charles' portion of their mother's savings and checking accounts and certificate of deposit for 2 years. The distribution was finally made during the investigation of Charles' complaint. The panel concluded that there was no harm caused by the respondent's conduct with respect to Charles' complaint. Despite the lack of injury to Charles, there was significant potential injury to Helms. In addition, respondent's admission of his four violations of the KRPC supports published censure. *1312 We find that the panel's findings and conclusions as modified herein are supported by clear and convincing evidence. Respondent suggests that if we publish this opinion we omit his name. No precedent is cited in support of that type of opinion. We reject the suggestion. IT IS THEREFORE ORDERED that Larry W. Wall, be disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2001 Kan. Ct. R. Annot. 224). IT IS FURTHER ORDERED that the costs of this proceeding be assessed to the respondent, and that this opinion be published in the official Kansas Reports. DAVIS, J., not participating. BRAZIL, Chief Judge Retired, assigned.[1] NOTES [1] REPORTER'S NOTE: Chief Judge J. Patrick Brazil, Retired, was appointed to hear case 86,975 vice Justice Davis pursuant to the authority vested in the Supreme Court by K.S.A. 20-2616.

14 B.R. 840 (1981) In re Russell E. BLEWETT and J. Susan Blewett, Debtors. FIRST CITY BANK, Appellant, v. Russell E. BLEWETT and J. Susan Blewett, Appellees. BAP No. CC-81-1030HGK. United States Bankruptcy Appellate Panels of the Ninth Circuit. Submitted June 1, 1981. Decided August 31, 1981. *841 Richard C. Robbins, Tremaine, Shenk, Stroud & Robbins, Los Angeles, Cal., for appellant. Richard M. Moneymaker, Moneymaker & Morrison, Los Angeles, Cal., for appellees. Before HUGHES, GEORGE and KATZ, Bankruptcy Judges. OPINION HUGHES, Bankruptcy Judge: Appellant First City Bank timely filed a complaint against Mr. and Mrs. Blewett, joint debtors under Chapter 7 of the Bankruptcy Code. Appellees moved to dismiss for failure to state a cause of action. At the hearing on this motion, appellant orally moved for leave to amend the complaint. Leave to amend was denied and the complaint was ordered dismissed. We reverse. I The title of the complaint as filed was "Complaint Specifying Objection to Discharge and for Money Due" followed by "11 U.S.C. 523(a)(2)." Dischargeability of a particular debt is governed by that code section; objections to discharge by 11 U.S.C. § 727. The complaint itself stated the elements of a cause of action under § 523(a)(2) in alleging that money owed by the debtors was obtained by use of a false financial statement. The prayer, although speaking of objection to discharge, sought a money judgment. This is compatible with dischargeability under § 523 but not with denial of discharge under § 727. The proposed amendments would change "objection" to "exception" in the title, make the same change twice in the body of the pleading, and change the second prayer from "the Court deny debtor's discharge pursuant to 11 U.S.C. 583 (sic)" to "The Court except from debtors' discharge pursuant to 11 U.S.C. 523." II Dismissal of the complaint for failure to state a cause of action was erroneous, even in the absence of the motion for leave to amend. The premise of the motion to dismiss was that appellant sought to deny appellee's discharge pursuant to 11 U.S.C. § 727 and that use of a false financial statement is not an enumerated ground for such relief. That premise, however, was based on nothing more than appellant's use of terms such as "objection to discharge" instead of "exception from discharge." On the other hand, the complaint stated — somewhat clumsily, to be sure — a cause of action under 11 U.S.C. § 523(a)(2) to except appellant's debt from discharge. Bankruptcy Rule 708 makes Rule 8 of the Federal Rules of Civil Procedure applicable in adversary proceedings. Rule 8(f) states that, "All pleadings shall be so construed as to do substantial justice." The purpose of this rule is to facilitate a decision *842 on the merits, Conley v. Gibson, (1957) 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, and to give notice to the adversary of the nature or basis of the claim brought against him and the general type of litigation involved. Lewis v. U.S. Slicing Mach. Co., 311 F.Supp. 139, (D.C.Pa.1970), Lobianco v. Valley Forge Military Academy, 224 F.Supp. 395, (D.C.Pa.1963), affirmed 331 F.2d 851 (3d Cir. 1964). The complaint in this case, although containing errors in terminology, gave the debtor adequate notice of the nature and basis of the claim and the type of litigation to be expected. A pleading, according to the liberal concepts of Rule 8, is to be judged by its substance rather than by its form or label. 5 Wright & Miller, Federal Practice and Procedure, § 1286, p. 383. As stated in Voytko v. Ramada Inn of Atlantic City, 445 F.Supp. 315, (D.C.N.J.1978), at 325: "It would be improper to dismiss a claim which raises a cognizable cause of action where that claim is merely mislabeled, in view of the command of F.R.C.P. 8(f) that, `[a]ll pleadings shall be so construed as to do substantial justice'." Thus, even if appellant had not sought to correct the mislabeling of its complaint, the order of dismissal was erroneous. III The bankruptcy judge also abused his discretion in denying appellant's motion to amend its complaint. "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served . . ." Fed.Rule Civ.Proc. 15(a). No answer had been filed and a motion to dismiss is not a responsive pleading. Nolen v. Fitzharris, 450 F.2d 958 (9th Cir. 1971); Richardson v. U.S., 336 F.2d 265 (9th Cir. 1964). The trial court apparently was persuaded by the argument that the proposed amendments would have changed the cause of action from an objection to discharge under 11 U.S.C. § 727 to a determination of the dischargeability of a particular debt under 11 U.S.C. § 523(a)(2). Appellees argue that because the amendment was proposed after the bar date fixed pursuant to Bankruptcy Rule 409(a)(2), it represented an untimely new cause of action. The argument is without merit. Fed. Rule of Civil Procedure 15(c) provides that whenever a "claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the original pleading." Appellant set forth (or attempted to set forth) a claim based on a transaction involving a false financial statement. The operative facts being unchanged, the amended complaint will be deemed filed as of the date of the original complaint. Reversal of a trial court's refusal to grant leave to amend is available only if abuse of discretion is found. Komie v. Buehler Corp., 449 F.2d 644 (9th Cir. 1971). The trial court must exercise its discretion, however, and failure to provide a statement of reasons justifying the denial where reasons are not otherwise readily apparent constitutes an abuse of discretion. Hurn v. Retirement Fund Trust of Plumbing, etc., 648 F.2d 1252 at 1254 (9th Cir. 1981). There being no justification in the record, the trial court's denial of the motion for leave to amend constituted an abuse of discretion. IV The orders dismissing the bank's complaint for failure to state a cause of action and denying leave to amend are reversed.

755 N.W.2d 169 (2008) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Dale MAURO, Defendant-Appellant. Docket No. 135978. COA No. 278853. Supreme Court of Michigan. September 9, 2008. On order of the Court, the application for leave to appeal the January 11, 2008 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).

174 Kan. 506 (1953) 257 P.2d 116 In the Matter of the Estate of MARY C. JONES, Deceased. EMMA JONES ALDRICH, Executrix of the Estate of Mary C. Jones, Deceased, Appellant, v. RUTH ELIZABETH JONES, Executrix of the Estate of David S. Jones, Deceased, Appellee. No. 38,943 Supreme Court of Kansas. Opinion filed May 9, 1953. W.D. Jochems, of Wichita, argued the cause, and John McKenna, of Kingman, was with him on the briefs for the appellant. Paul R. Wunsch, of Kingman, and Glenn J. Shanahan, of Wichita, argued the cause, and Charles H. Stewart, of Kingman, and Dale M. Bryant, Morris H. Cundiff, John C. Frank, and Garner E. Shriver, all of Wichita, were with them on the briefs for the appellee. The opinion of the court was delivered by WERTZ, J.: This is an appeal from a judgment on the final accounting and settlement of an estate by an executrix. Mary C. Jones, a resident of Kingman county, died testate November 7, 1937, and her will was admitted to probate in that county January 3, 1938. At the time of her death she was survived by two children, a daughter, Emma Jones Aldrich, who was designated by the testatrix as executrix of the will, and was appointed and qualified as such on January 3, 1938, and a son, David S. Jones, who were the principal beneficiaries of her will. By the terms of the will, Mary C. Jones bequeathed $1,500 to a nephew, and a special bequest of $30,000 to the daughter Emma Jones Aldrich. The possession and income from certain real estate was devised to her daughter, Emma and son, David, and the survivor of them, so long as either should live. The remainder of the mentioned property was devised to two great grandchildren. The residue of her estate, consisting of several tracts of real estate and personal property, constituting the bulk of her estate, was devised and bequeathed to Emma and David in equal shares. On March 3, 1938, the executrix filed an inventory and appraisement showing a bank account of $5,704.96, real estate mortgages and government bonds in the amount of $106,330.66, and the devised tracts of real estate valued at $31,000. After the executrix qualified as such, she paid the expenses of last sickness, funeral expenses, the nephew's legacy, various taxes, insurance premiums upon real estate, and estate and inheritance taxes. Subsequent *508 thereto on June 20, 1940, she paid to herself as executrix a fee of $3,500, her special bequest of $30,000, and an attorney fee. The personal property was more than sufficient to pay all debts, funeral and administrative expenses, taxes of all kinds, and special bequests. The will of Mary C. Jones gave the executrix no authority over the real estate, nor did any order of the probate court authorize her to take possession of the real estate and collect rents, or exercise any supervision thereof. The executrix under the will took over all the property belonging to the estate, including that specifically devised, and exercised full power, control and direction over it, and for more than thirteen years was recognized by everyone concerned as executrix of the estate with full power, control and direction over the real and personal property owned by the decedent at the time of her death. Throughout this period she, as executrix, received and collected the rents and income from the real estate and property bequeathed and devised under the will, and made and paid for repairs on the property, with the full knowledge of such action on the part of the heirs, and with their apparent consent and approval. She made no accounting in the estate to the probate court and none was requested by any of the parties concerned, until the year 1951 as hereinafter related. She maintained only one bank account in the name of Mary C. Jones estate and to this account she deposited all receipts and incomes from the various properties of the estate, including rental incomes from the real estate. From this same account she paid all taxes, repairs, insurance on the real estate, expenses of administration, and made certain distributions to herself and to her brother, David, and other beneficiaries of the estate. She made both federal and state income tax returns as executrix of Mary C. Jones estate for the years 1938 to 1950, inclusive. In these income tax returns she reported and included the income from the mortgages, government bonds, as well as the rentals collected from the real estate. On these fiduciary returns she claimed and deducted credit for depreciation of property, expenses, maintenance, and otherwise treated them as assets of the estate of Mary C. Jones, of which she was the executrix. David S. Jones, brother of the executrix, died August 30, 1950. Subsequently, his wife Ruth Elizabeth Jones, appellee herein, was appointed and qualified as executrix of the will of David S. Jones in the probate court of Sedgwick county. On May 3, 1951, she filed an application in the probate court of Kingman county to compel the executrix, Emma Jones Aldrich, to make final settlement and *509 accounting of the Mary C. Jones estate. On September 5, 1951, Emma filed her petition for final settlement and actually accounted for $138,665.76, consisting of items and amounts received and paid out by her in her official capacity, without regard to receipts and expenditures pertaining to the real estate. Application was made, and the case was transferred to the district court for hearing (G.S. 1951 Supp. 59-2402a). A pretrial conference (G.S. 1949, 60-2705) was called, and thereafter trial was had in the district court on April 30, 1952. The case was submitted to the trial court upon the testimony of Emma, along with the probate court files, bank statements, and fiduciary income tax returns filed by Emma as executrix, for the years 1938 to 1950, inclusive, and the individual income tax returns of David S. Jones for the years 1939 to 1949, inclusive. The trial court extended the action into one including an accounting for rents collected by her from the real estate devised to her and her brother, David. The court gave the executrix full credit for the total receipts and expenditures, as shown by her final settlement, in the amount of $138,665.76, with the exception of $3,500 which it disallowed as being paid to her for her services as executrix, and rendered judgment against Emma in the sum of $20,381.85. The court treated this balance of rentals as a shortage due the estate of David S. Jones. From this judgment, Emma Jones Aldrich, Executrix of the Estate of Mary C. Jones, deceased, appeals. Appellant first contends that the trial court erred in holding that she, as executrix, was required to account for the rentals on the real estate devised to her and her brother, David S. Jones, under the will of Mary C. Jones, and asserts that at the time the will was admitted to probate, the old probate code was in effect. Under the law as it then stood, title to the real estate and the right to receive the rentals vested in the devisees upon the death of the testator; that the executrix had no jurisdiction or control over the real estate unless the will specifically granted it, and cites several of our authorities to support that contention. Normally, appellant's contention is correct, but her argument overlooks the fact that there are exceptions to this rule. In Firmin v. Crawford, 140 Kan. 370, 36 P.2d 970, it was said: "It needs little citation of authority to show that as administrator he had nothing to do with the rents from the real estate (Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50, and cases cited; 11 R.C.L. 123; 23 C.J. 1139), although under certain circumstances the heirs or devisees may be estopped to recover *510 as against him where the moneys have been applied to taxes and mortgage payments with their knowledge and consent." (p. 372.) In Kothman v. Markson, 34 Kan. 542, 9 Pac. 218, we stated: "Where an administrator takes possession of the real estate of an intestate under an order of the probate court, and collects and receives rents for the same, which he reports to the probate court, and with which he charges himself as administrator, and a part of which is used for the benefit of the estate, and to pay the costs of its administration, and all is done with the knowledge and consent of the heirs of the intestate, held, that the administrator is estopped to deny that the rents so collected and received by him are assets of the estate." (Syl. ¶ 2.) And again in the case of In re Estate of Charles, 158 Kan. 460, 148 P.2d 765, we stated: "Where the terms of a will authorize the executor therein named to sell real estate belonging to a decedent on the date of her death and direct, after disposition of certain personal property, that the proceeds of the rest and residue of the estate be paid to the testatrix's children, and, where immediately after the probate of such will the executor takes over the custody and control of the real estate and for a period of time, extending over many years, with the knowledge, acquiescence, consent and approval of not only the devisees named in such will but the probate court as well, collects rents, maintains the property, pays taxes thereon and otherwise handles it as if the terms of the will and the conduct of the devisees and the probate court authorize his possession thereof in his capacity as executor, held, that both the executor and the devisees under the will are estopped to deny that the rents so collected and received by the former are assets of the estate, or to assert that the manner in which the proceeds of such rentals have been handled by such executor, preclude either assets or expenditures from being regarded as proper items for consideration in a proceeding in probate court for a final settlement and accounting." (Syl.) It is stated in 33 C.J.S. 1272, 1273, § 259c(2): "Whether the representative's liability to account for rents and profits is in his representative or his individual capacity depends on the facts of the particular case.... It is usually considered that, where the representative has received rents and accounted therefor or paid them out in discharge of the debts of his decedent, he is precluded from alleging that they belong to the heir and that he received them without authority, and those entitled to the rents may charge him therewith in his representative capacity as for assets rightfully received; while, if he received them without authority, he is also chargeable in his individual capacity for what he has paid out, the one entitled to the rents has the right to elect in which capacity he shall be charged, and he cannot defeat a recovery against him in his representative capacity on the ground that he is personally liable." At the death of Mary C. Jones, the right of possession to the real estate became vested in her daughter Emma, and son David and, therefore, they were entitled to the rents and profits of the same, *511 as long as either should live. As a general rule, where the administrator takes possession and collects the rents, they are not to be treated as assets of the estate. However, we are of the opinion that in the instant case the rents must be accounted for as assets of the estate, as the facts herein come within the exceptions mentioned in the foregoing cited cases. For more than thirteen years, Emma had been acting as the executrix of the estate of Mary C. Jones. From the very moment of her appointment, she took over and retained the possession and control of decedent's estate, both real and personal. During all this time, she collected the interest on the outstanding mortgages and bonds and collected the rents from all the properties that were devised to her and her brother, David; that she commingled these funds in one bank account kept by her in the Kingman bank in the name of Mary C. Jones Estate. Out of this same bank account she paid the expenses of administration, including funeral expenses of the decedent, the legacies, her fee as executrix, attorney fees, taxes and insurance on the real estate, made and paid for repairs on the properties, and made partial distributions to her brother, David from time to time. As executrix, she made income tax returns, both federal and state, showing all receipts such as interest on the bonds and mortgages, and the rents derived from the real estate devised to her and her brother, David, not only reporting the rents she collected, but also rents collected and reported to her by her brother, David. As executrix, on all tax returns she took credit for depreciation, insurance and repairs on the mentioned properties, credit for the taxes paid and, in each instance, treated the rents as assets of the estate. All these things and many others pertaining to matters affecting the real estate, she did with the full knowledge, acquiescence, consent and approval of her brother David, and others interested in the estate. Under these circumstances and conditions, we think the rule announced in Kothman v. Markson and In re Estate of Charles, both supra, is applicable and that not only the executrix but all persons interested in the estate are estopped to deny that the rents received and collected by appellant executrix are assets of the estate, and held by her in the capacity of executrix. Appellant contends that she was not required to account for the rents because the will of Mary C. Jones was admitted to probate before the new probate code was in effect. The present probate code (G.S. 1949, chapter 59) became effective July 1, 1939. Under the new code, the executor or administrator shall have a right to *512 possession of all the property of the decedent (G.S. 1949, 59-1401), with certain exceptions not material here. Under this act, the appellant would clearly be liable to account for the rents. Section 59-2602 provides, in part: "The rules of procedure herein prescribed shall govern all probate proceedings brought after they take effect and also all further procedure in probate proceedings then pending, except to the extent that in the opinion of the court their application in a particular proceeding when they take effect would not be feasible or would work injustice, in which event the former procedure applies." Under the above statute, it is expressly provided the rules of procedure prescribed shall apply to all further probate proceedings then pending, except to the extent that in the opinion of the probate court their application would work an injustice. No such order was made in the case at bar. For a period of more than eleven years after the enactment of the new code, her acts and conduct were in accordance with the provisions of the new code, and under this act she was properly accountable, as executrix, for the rents received, as hereinbefore related. Appellant, in her brief, invites our attention to paragraph 4 of the will of Mary C. Jones which provides, in substance, that she devised and bequeathed to her son, David and her daughter, Emma the possession, use, and income from a certain part of the real estate and to the survivor of them so long as either one shall live, and that therefore upon the death of David, all funds in her hands undistributed to David from such specific real estate became her property as a survivor, and she invites our attention to the case of Calkin v. Wallace, 160 Kan. 760, 165 P.2d 224. We have examined the provisions of the will in the mentioned case and find that the decision based thereon is not in point or controlling under the provisions of the will in this action. However, the general rule contained in the mentioned case, to the effect that in the absence of a contrary expression of intent in the trust instrument, it will be assumed that the grantor of the trust intended that income which at the time of the death of the life beneficiary was available for distribution in the hands of the trustee, but had not actually been paid over to the life beneficiary, was to go to his estate, is applicable here. We find nothing in the will of Mary C. Jones which would require a contrary holding. The lower court did not err in requiring appellant to make a complete accounting of her activities as executrix of the estate. *513 Appellant next argues that if the executrix is required to account for the rents on her final accounting, then the three-year statute of limitations, G.S. 1949, 60-306, Second, should apply to such accounting, and that appellant should have been required to account for the rents only for a three-year period prior to May 13, 1951. It is to be remembered that the court found the executrix should account for the rents in her representative capacity as executrix of the estate, and not in her individual capacity. The statute of limitations provided in our civil code does not apply to claims and demands of a beneficiary to his rightful share of the proceeds and distribution of an estate on the final accounting and settlement by an executrix of the estate. The general rule is stated in 21 Am. Jur. 658, § 495: "In the absence of statute fixing the term of an administration, an executor or administrator is not generally relieved from being called to account in the probate court by the mere lapse of time without any action by the court. Even after the lapse of many years, the beneficiaries are entitled to an accounting. Statutes of limitation do not ordinarily run in favor of a personal representative so as to bar an action for an accounting. Before he can claim the benefit of the statute, the continuance or continuity of his office must in some way be interrupted, as by judicial discharge, disclaimer, or breach of trust. The reason for this doctrine is that his trust is a continuing one. He has many duties to perform in administering the estate and is presumed to be engaged in performing them in subordination to his trust, and not to be maintaining an attitude hostile to his cestui que trust...." Where a person during his lifetime, as executor, stands in the relation of trustee to a fund, he therefore cannot plead the statute of limitations as against the rights of the next of kin or persons entitled to the distribution of assets of the estate. (34 Am. Jur. 292, § 376.) This rule was recognized in the case of In re Estate of Park, 147 Kan. 142, 75 P.2d 842, wherein we said: "Our statute, G.S. 1935, 60-306, containing the limitation provision sought to be applied here is confined in its scope of operation to `civil actions,' and consequently does not govern remedies in `special proceedings' such as in the administration of estates, and that this was the intention of the legislature is evident from the provisions of G.S. 1935, 60-3823, which provides that: "Until the legislature shall otherwise provide, this code shall not affect ... proceedings under the statutes for the settlement of estates of deceased persons, ..." (pp. 150, 151.) Under the facts in the instant case, as applied to the decisions of our state, the appellant cannot assert the statute of limitations of the code of civil procedure in her final accounting and settlement in the mentioned estate. *514 Appellant next contends that the court erred under the facts in this case in disallowing the compensation previously paid to her, and asserts that in determining tax liabilities of the estate, it was necessary that the executrix and attorney fees be set up as a deduction, and that the trial court penalized her by forfeiting her compensation. It may be noted here that the executrix's fee was never allowed or approved by the probate court. On this issue, the court made extensive findings of fact and concluded: "I am of the opinion that the Executrix fee in the amount of $3,500.00 claimed and deducted by her in her report should be disallowed. In divers ways the Executrix has been unfaithful in keeping records and accounting for the estate funds, creating great uncertainty and additional expenses in determining respective rights. Her report as to receipts from personal property is made largely from conclusions and her bank account with no supporting data reveals nothing but shortage above noted if her testimony and the fiduciary income tax returns are substantially correct." The rule, established by this court in a long and unbroken line of decisions, is that where a trial court makes a finding of fact our only function on appeal is to ascertain whether there is substantial competent evidence to support the finding as made, and not whether some evidence appears in the record which would have supported a contrary finding had the trial court seen fit to make one; and in the determination of that question, the appellate court does not weigh the evidence but is concerned only with whether it supports the findings as made by the court. (In re Estate of Johannes, 173 Kan. 298, 300, 245 P.2d 979; Bradbury v. Wise, 167 Kan. 737, 743, 208 P.2d 209; Pearcy v. Williams, 163 Kan. 439, 442-3, 183 P.2d 243; In re Estate of Spark, 168 Kan. 270, 275, 212 P.2d 369.) No useful purpose would be served be detailing a recital of all the evidence in this case. We have touched the high points of the facts related in the opinion and examined the record minutely and our conclusion is that the findings and conclusions of the trial court are sustained by substantial competent evidence, and the facts warranted the court's decision in disallowing appellant's claim for compensation as executrix. (In re Simmons Estate, 136 Kan. 789, 18 P.2d 117; Vincent v. Werner, 140 Kan. 599, 38 P.2d 687.) Appellant next complains that the court erred in admitting in evidence and considering the income tax returns filed by her. An examination of the record reveals that this complaint was not asserted as a ground of error in appellant's motion for new trial, nor was it presented to the trial court, but is asserted here for the first time. We have consistently held, when it does not affirmatively appear, *515 that a question raised on appeal was presented to and determined by the trial court, this court does not consider it on review. (Holton v. Holton, 172 Kan. 681, 243 P.2d 222.) In view of what has been said, the judgment of the trial court must be affirmed. It is so ordered. THIELE, J., (dissenting): I dissent to the following extent. In my opinion the evidence disclosed conclusively that the executrix performed valuable services for the estate. Even though she was not warranted in paying herself without an order of the probate court and taking credit for the payment in her final account, on final settlement an allowance for those services should have been made to her. PRICE, J., concurs in the dissent.

456 So.2d 357 (1984) Ex parte Marianne CLARE. (Re Marianne Clare v. State of Alabama). 82-1235. Supreme Court of Alabama. July 13, 1984. William R. Blanchard, Jr. of Pappanastos, Samford, Roberts & Blanchard, Montgomery, for petitioner. Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent. ADAMS, Justice. We granted certiorari in this case to consider whether the Court of Criminal Appeals, 456 So.2d 355, was correct in affirming the trial court's decision ordering defendant to pay $15,000.00 as restitution resulting from her conviction. The defendant was convicted for two separate charges of second degree theft and one charge of first degree theft. The court imposed a sentence of two years' imprisonment and a fine of $15,000.00. The sentence was suspended on condition that defendant make restitution in the amount of $15,000.00 during the first two years of her five-year probationary period. The case was appealed to the Court of Criminal Appeals, which affirmed. After a thorough examination of the case, we agree with the Court of Criminal Appeals' finding that the trial court was correct in its assessment of restitution. The judgment of the Court of Criminal Appeals is, therefore, affirmed. In affirming, we deem it necessary to discuss what type of damages may be included in the restitution order. *358 The Code authorizes the trial court, as a condition of probation, to order the defendant to "[m]ake reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court...." Code 1975, § 15-22-52(8). The Code defines "restitution" as "[f]ull, partial or nominal payment of pecuniary damages to the victim or to its equivalent in services performed or work or labor done for the benefit of the victim as determined by the court of record," while also defining "pecuniary damages" as "[a]ll special damages which a person shall recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities...." Code 1975, § 15-18-66 (1982 Repl.Vol.). The Court of Criminal Appeals states that included in the concept of special damages is the right to receive punitive damages. This, however, is incorrect. The purpose of the above-cited statute, as announced by the legislature, is to ensure "... that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof...." (Emphasis added.) Code 1975, § 15-18-65 (1982 Repl.Vol.). These special damages, then, are based on the theory of compensation. In Birmingham Waterworks Co. v. Keiley, the Court of Appeals discussed the issue of damages, and stated: "Actual damages are recoverable at law, out of a wrongdoer by the injured party as a matter of right as compensation for the actual loss sustained by him by reason of such wrong. Punitive damages are damages over and above such sum as will compensate a person for his actual loss, and the law permits their imposition, in proper cases, at the discretion of the jury, not because the party injured is entitled to them as matter of right, but as punishment to the wrongdoer, and to deter him and others in similar businesses from such wrongdoing in the future." 2 Ala.App. 629, 637, 56 So. 838, 841 (1911), citing Oliver v. Columbia, N. & L. R.R. Co., 65 S.C. 1, 43 S.E. 307 (1902). The legislative intent of the restitution statute is to compensate, and not to punish. We, therefore, hold that the special damages that the victim is entitled to in this case are limited to an amount which fully compensates the victim, and these damages may not be punitive in nature. Having settled the question concerning what type of damages are allowable for restitution, we now focus on the main issue offered for our review in this case: whether the Court of Criminal Appeals erred in affirming the trial court's order of restitution. The general rule regarding the imposition of restitution has been that the amount awarded may not be larger than that involved in the indictment. United States v. Follette, 32 F.Supp. 953 (E.D.Pa. 1940). This language is based on a strict interpretation of the federal Probation Act. Code 1975, § 15-22-52(8), is similar to the federal statute, and has been relied upon for years as the controlling law on the subject in Alabama. We now, however, have a new statute which the legislature enacted to govern restitution in Alabama, 1980 Ala. Acts 80-588 (Codified at Code 1975, § 15-18-65 through § 15-18-77 (1982 Repl.Vol.)). This statute authorizes restitution to "fully compensate all victims of [criminal] conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof." Code 1975, § 15-18-65 (1982 Repl.Vol.). It is clear to us from this new enactment that it is the intent of the legislature that victims be fully compensated through restitution. The Act authorizes restitution by defendant for any "criminal activity" on his part against the victim. "Criminal activity" is defined as "[a]ny offense with respect to *359 which the defendant is convicted or any other criminal conduct admitted by the defendant." Code 1975, § 15-18-66 (1982 Repl.Vol.). In the case before us, the defendant admits that she embezzeled monies which rightfully belonged to her employer, in an amount greater than that stated in the indictment. By using Code 1975, § 15-22-52(8), together with new Code 1975, §§ 15-18-65 and -66, we find that defendant can be held accountable for an amount greater than that set out in the indictment. Defendant contends that the most she can be held to owe as restitution is $12,000.00, as this is the total amount that she admits to taking unlawfully from her employer. The State, however, produced evidence showing that the total amount taken by defendant was $31,500.00. The trial court allowed each side ample time to gather evidence pertaining to the amount in question. The court held a hearing, as authorized by Code 1975, § 15-18-67 (1982 Repl.Vol.), to determine the amount of restitution to be made. Neither side chose to call any witnesses. The court found, after listening to counsel, that the actual amount taken by defendant was $31,500.00. Defendant objects, stating that she can only be held accountable for the amount in excess of the indictment which she admits having stolen. We disagree. The statute allows restitution for any criminal activity for which there is a conviction or an admission by defendant. Defendant admits to engaging in activities concerning certain discounts and loans, but maintains that she is entitled to the proceeds therefrom. The court finds that these too are included in defendant's criminal activities. In order to follow the intent of the legislature and compensate the victim, the court set restitution at $15,000.00. We find no abuse of discretion in the trial court's holding, and agree with the judgment of the Court of Criminal Appeals. The Court of Criminal Appeals, in reaching its decision, relied on the case of Killough v. State, 434 So.2d 852 (Ala.1983). The issue in the Killough case centered around the defendant's agreeing to pay full restitution pursuant to a plea bargain. Since there was no evidence of a plea bargain in this case, we find that the Court of Criminal Appeals' reliance on Killough was misplaced. The State contends that the restitution issue was not preserved for appeal by defense counsel, because no objection was made, as is authorized by Code 1975, § 15-18-69 (1982 Repl.Vol.). We dismiss this argument because the nature of this particular restitution hearing did not allow for objections, as there was no testimony from witnesses. Defendant's counsel made known to the court his disagreement with the State concerning the amount of restitution, and this was enough in this instance to preserve the issue for review. The Court of Criminal Appeals, properly having the issue before it, was under a duty to render a decision thereon. Even though we do not agree with all the rationale used by the Court of Criminal Appeals in its opinion, we, nevertheless, based upon the above-stated reasons, affirm the judgment of the Court of Criminal Appeals. AFFIRMED. TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

609 F.2d 501 22 Fair Empl.Prac.Cas. 62 Frinkv.U. S. Navy Pera (Crudes) No. 78-1203 United States Court of Appeals, Third Circuit 10/11/79 1 E.D.Pa. AFFIRMED

343 F.2d 466 Isao HITAI, also known as Mario Isao Hitai, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 358. Docket 29176. United States Court of Appeals Second Circuit. Argued March 5, 1965. Decided March 29, 1965. Francis L. Giordano, Brooklyn, N. Y., for petitioner. James G. Greilsheimer, Sp. Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, and Francis J. Lyons, Sp. Asst. U. S. Atty., New York City, of counsel), for respondent. Before MOORE, KAUFMAN and HAYS, Circuit Judges. HAYS, Circuit Judge. 1 Petitioner, a citizen of Brazil, was born in Brazil. His father, who is now dead, was a Brazilian citizen as is his mother who is still living. Both parents were, as the special inquiry officer found, "natives of Japan of the Japanese or Asiatic race." 2 Petitioner entered this country as a temporary visitor for pleasure on January 25, 1964, with permission to remain in that status until June 30, 1964. 3 In May 1964 the Immigration and Naturalization Service commenced deportation proceedings charging petitioner with having violated the terms of his permission to enter as a visitor by working as a hospital porter. At the hearing held pursuant to Section 242(b) of the Immigration and Nationality Act1 petitioner admitted that he had worked full time since February 17. The special inquiry officer found him deportable. Petitioner then applied for adjustment from the status of a "bona fide nonimmigrant" to that of "an alien lawfully admitted for permanent residence" under Section 245 (a) of the Act.2 The special inquiry officer denied the application on the ground that petitioner did not meet the requirement of Section 245(a) that "the alien [be] * * * eligible to receive an immigrant visa." Although as an "immigrant who was born in * * * an independent country of Central or South America," petitioner would otherwise be classified as a "nonquota immigrant,"3 the special inquiry officer assigned petitioner to the quota area for Japan because of Section 202(b) (4) of the Act. Under the terms of that section an 4 "immigrant born outside the Asia-Pacific triangle [defined by geographic boundaries including Japan] who is attributable by as much as one-half of his ancestry to a people or peoples indigenous to not more than one separate quota area, situate wholly within the Asia-Pacific triangle, shall be chargeable to the quota of that quota area * * *"4 5 A visa is not available under the Japanese quota. 6 The Board of Immigration Appeals approved the special inquiry officer's decision, but, rather than ordering deportation, granted petitioner permission to depart voluntarily. 7 The Immigration and Naturalization Service concedes that this order is reviewable by this Court under Section 106(a) of the Act5 as interpreted in Foti v. Immigration and Naturalization Serv., 375 U.S. 217, 84 S.Ct. 306, 11 L. Ed.2d 286 (1963),6 and we concur. 8 Petitioner challenges the constitutionality of Section 202(b) (4) on the ground that it prescribes a standard which is arbitrary and unreasonably discriminatory. He argues that a law that discriminates betwen native-born Brazilians for the purpose of granting permanent residence in the United States, by assigning those Brazilians whose ancestry is attributable to certain "Asiatic races" to a quota area, which has a definite limit, and permitting other Brazilians whose ancestry is not so attributable to enter the United States as permanent residents without any quota area limit, violates the requirements of due process of law guaranteed by the Fifth Amendment and those standards of equal protection of the laws contained by implication in that amendment. 9 We are constrained to reject petitioner's claim that Section 202(b) (4) as here applied is unconstitutional. The exclusion and deportation of aliens pursuant to statute falls within that category of policy decisions, which, "so far as the subjects affected are concerned, are necessarily conclusive upon all * * * [the government's] departments and officers," including "the judiciary." The Chinese Exclusion Case, 130 U.S. 581, 606, 9 S.Ct. 623, 630, 32 L.Ed. 1068 (1889). In Harisiades v. Shaughnessy, 342 U.S. 580, 588-589, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952), Mr. Justice Jackson said: 10 "[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." (Footnote omitted.) 11 See also Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893). 12 Petitioner also bases his argument on Article 55 of the United Nations Charter which provides for the promotion of "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." This provision of the Charter is not self-executing and therefore did not ex proprio vigore repeal or invalidate any of the laws, including the immigration laws, of the member states. Vlissidis v. Anadell, 262 F.2d 398 (7th Cir. 1959). Compare Sei Fujii v. State, 38 Cal.2d 718, 242 P.2d 617 (1952). 13 The petitioner makes no claim that he was not accorded a full hearing with adequate notice pursuant to Section 242 (b) nor that the statutes were misapplied or that the facts were incorrectly found in his case. Therefore the petition must be denied. 14 Denied. Notes: 1 66 Stat. 209 (1952), 8 U.S.C. § 1252 (b) (1958) 2 74 Stat. 505 (1960), 8 U.S.C. § 1255(a) (Supp. V, 1964) 3 § 101(a) (27) (C), 66 Stat. 169 (1952), 8 U.S.C. § 1101(a) (27) (C) (1958) 4 66 Stat. 177 (1952), 8 U.S.C. § 1152(b) (4) (1958) 5 75 Stat. 651 (1961), 8 U.S.C. § 1105a(a) (Supp. V, 1964) 6 See Talavera v. Pedersen, 334 F.2d 52 (6th Cir. 1964); Skiftos v. Immigration and Naturalization Serv., 332 F.2d 203 (7th Cir. 1964)

260 S.E.2d 427 (1979) 298 N.C. 783 STATE of North Carolina v. Willie SAMUELS. No. 80. Supreme Court of North Carolina. December 4, 1979. *429 Asst. Public Defender Tom Dickinson and Public Defender Fritz Y. Mercer, Jr., Charlotte, for defendant. Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Marilyn R. Rich, Raleigh, for the State. COPELAND, Justice. The record on appeal contains three exceptions, properly made, which are the basis of three assignments of error, properly set out at the end of the record. These assignments of error were not brought forward or discussed in the brief; therefore, they are deemed abandoned. Rule 28(a), (b)(3), Rules of Appellate Procedure; State v. Davis, 272 N.C. 469, 158 S.E.2d 630 (1968); State v. Battle, 271 N.C. 594, 157 S.E.2d 14 (1967) (per curiam); State v. Strickland, 254 N.C. 658, 119 S.E.2d 781 (1961). These cases arose under former Rule 28, Rules of Practice in the Supreme Court; however, our present Rule 28 maintains the same rule as former Rule 28 with respect to requiring that the assignments of error be brought forward and discussed in the brief in order to properly present questions for review on appeal. Defense counsel set forth one Question Presented in his brief. In it he stated that his examination of the record revealed no error prejudicial to the defendant. He has asked us to examine the entire record to determine whether we find prejudicial error warranting a new trial. This question presented in the brief was not made the basis of any assignment of error. Normally, this Court will not consider questions not properly presented by objections duly made, exceptions duly entered, and assignments of error properly set out. State v. Brooks, 275 N.C. 175, 166 S.E.2d 70 (1969); 1 Strong's N.C. Index 3d, Appeal and Error § 24. Under our former Rules of Practice in the Supreme Court, the appeal itself constituted an exception to the judgment and presented for review any error appearing on the face of the record proper. State v. Cox, 281 N.C. 131, 187 S.E.2d 785 (1972); State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970). Our present Rules of Appellate Procedure, effective 1 July 1975, obliterated the former distinction between the "record proper" and the "settled case on appeal." Instead, the single concept of "record on appeal" is used and the composition of the record on appeal is governed by Rule 9(b), Rules of Appellate *430 Procedure. State v. McMorris, 290 N.C. 286, 225 S.E.2d 553 (1976); State v. Adams, 298 N.C. 802, 260 S.E.2d 431 (1979). However, our present Rule 10(a), Rules of Appellate Procedure, does provide that, "[U]pon any appeal duly taken from a final judgment any party to the appeal may present for review, by properly raising them in his brief, the questions whether the judgment is supported by the verdict or by the findings of fact and conclusions of law, whether the court had jurisdiction of the subject matter, and whether a criminal charge is sufficient in law, notwithstanding the absence of exceptions or assignments of error in the record on appeal." (Emphasis added.) Also, G.S. 15-173 allows a defendant to appeal the denial of his motion for nonsuit made at the close of the State's evidence (if the defendant presents no evidence) or made at the close of all the evidence (if the defendant does present evidence), "without the necessity of the defendant's having taken exception to such denial." Therefore, it is clear that a defendant may properly present on appeal the questions enumerated in Rule 10(a), without taking any exceptions or making any assignments of error in the record and may properly present for review the denial of his motion for nonsuit under G.S. 15-173 without making any exception in the record. However, in both these situations, the defendant must still bring those questions forward in his brief, argue them and cite authorities in support of his arguments. Rule 28(a), (b)(3). Failure to do so means that those questions are not properly presented for review. Rule 28(a), (b)(3); State v. McMorris, supra; State v. Adams, supra. Indeed, Rule 10(a) states that the questions enumerated there may be properly presented for review without exceptions or assignments of error being made "by properly raising them in his brief." Rule 28(a), (b)(3) then elaborates on the requirements of the brief in this regard as discussed above. We have the power under Rule 2, Rules of Appellate Procedure, to suspend or vary the requirements of the Rules of Appellate Procedure in order "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest . . . except as otherwise expressly provided by these rules" and Rule 28(a), (b)(3) does not expressly provide otherwise. From the foregoing, it is clear that no questions have properly been presented for review in this case. Nevertheless, due to the seriousness of the conviction and the sentence in this case, we have elected, pursuant to our inherent authority and Rule 2, to review the record on appeal with regard to the sufficiency of the evidence to take the case to the jury and the questions presented by Rule 10(a) and we find no prejudicial error. Furthermore, we have scrutinized the entire record on appeal to determine whether any error prejudicial to the defendant occurred in this trial. There was sufficient evidence of every essential element of the crime of first degree rape to take this case to the jury. One essential element of the crime of first degree rape is that defendant be more than sixteen years of age. G.S. 14-21(1)b. Here, the jury had ample opportunity to view the defendant and estimate his age. See, State v. Evans, 298 N.C. 263, 258 S.E.2d 354 (1979). The trial judge properly conducted this trial, made no erroneous evidentiary rulings, properly conducted the voir dire on the pretrial identification procedures and the in-court identification, and correctly charged the jury. Our examination of the record reveals no prejudicial error. We caution members of the bar to recognize that, "[i]t is not the function of the appellate courts to search out possible errors which may be prejudicial to an appellant; it is an appellant's duty, acting within the rules of practice, to point out to the appellate court the precise error of which he complains." Nye v. University Development Co., 10 N.C.App. 676, 678, 179 S.E.2d 795, 796, cert. denied, 278 N.C. 702, 181 S.E.2d 603 (1971). Appeals such as this are subject to dismissal for failure to properly present any questions for review under the *431 requirements of Rule 28(a), (b)(3), unless we elect pursuant to Rule 2, as we have done in this case, to suspend or vary the requirements of the Rules of Appellate Procedure. NO ERROR.

965 So.2d 1146 (2007) RUSSELL v. DAVID. No. 1D07-0287. District Court of Appeal of Florida, First District. September 27, 2007. Decision without published opinion. Cert. denied.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-18-00060-CV MARK SCHOMBURG, Appellant V. GERMANIA INSURANCE AND KAKER AGENCY, LLP, Appellees On Appeal from the 271st District Court Wise County, Texas Trial Court No. CV18-03-244 Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Chief Justice Morriss  MEMORANDUM OPINION Mark Schomburg filed a timely notice of appeal on June 28, 2018, of this case arising from Wise County, Texas. 1 The clerk’s record was filed July 30, 2018, and the reporter’s record was filed on August 3, 2018. The original deadline for Schomburg’s appellate brief was September 4, 2018. When neither a brief nor a motion to extend time for filing same was received by September 4, 2018, this Court advised Schomburg by letter dated September 20, 2018, that the brief was late. We further extended the deadline for filing the brief to October 5, 2018. We warned Schomburg that failure to file the brief by October 5, 2018, would subject this appeal to dismissal for want of prosecution. See TEX. R. APP. P. 38.8(a)(1), 42.3(b), (c). We have received no responsive communication from Schomburg and have not received his appellate brief. Having not received any response to this Court’s letter of September 20, 2018, Schomburg’s appeal is ripe for dismissal for want of prosecution. Consequently, pursuant to Rules 38.8 and 42.3 of the Texas Rules of Appellate Procedure, we dismiss this appeal for want of prosecution. See TEX. R. APP. P. 38.8(a)(1), 42.3(b), (c). Josh R. Morriss, III Chief Justice Date Submitted: November 8, 2018 Date Decided: November 9, 2018 1 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. 2 

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs January 25, 2005 STATE OF TENNESSEE v. REBECCA G. RATLIFF Appeal from the Criminal Court for Sullivan County No. S47,686 R. Jerry Beck, Judge No. E2004-00940-CCA-R3-CD - Filed March 15, 2005 The defendant, Rebecca G. Ratliff, appeals from the Sullivan County Criminal Court’s revocation of her probation. On appeal, the defendant claims that the trial court erred in ordering her to serve her original two-year sentence in the Department of Correction. Because the record supports the trial court in its discretionary determination to order incarceration, we affirm. Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed. JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA MCGEE OGLE, J., joined. Mark H. Toohey, Kingsport, Tennessee, for the Appellant, Rebecca G. Ratliff. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James Goodwin and B. Todd Martin, Assistant District Attorneys General, for the Appellee, State of Tennessee. OPINION On July 30, 1999, the defendant was convicted of attempt to pass a worthless check, a Class E felony. Her two-year sentence was suspended but was imposed to run consecutively to a sentence in a previous case. Based upon the consecutive alignment of sentences, the probationary period in the present case was due to expire on June 16, 2003. On January 25, 2002, the state issued a violation of probation report based upon the defendant’s October 19, 2001 Virginia convictions of uttering bad checks. The resulting warrant was not served on the defendant until March 2003. On April 15, 2004, the trial court conducted a revocation hearing. The defendant admitted that she had violated the terms of her probation. She testified that she had three children, ages 10, three years, and 16 months. She stated that, except for her Virginia offenses and convictions, she had complied with all other terms of her probation. She testified that the Virginia offenses resulted from her discontinuing her medications for bipolar disorder. She had been taking lithium and Panax and was on hiatus from the medications pursuant to her doctor’s order due to her pregnancy. She testified that when she wrote the two bad checks in Virginia, she was having financial difficulty and used the proceeds from the checks to buy groceries and pay utility bills. Her mother paid the two checks in Virginia, and the defendant served six months on probation. The defendant testified that her 16-month-old son was born with a hole in his heart. He had been hospitalized numerous times, the most recent hospitalization resulting from severe dehydration following a viral episode. The defendant testified that the child was unable to walk and underwent physical therapy once a week. She testified that her fiancee works a night shift and that she is the only person available to care for her children. The trial court acknowledged that the defendant had a long history of medical or psychological problems, including bipolar disorder and depression. The court also recognized that the defendant had a long history of credit-related offenses, including four felonies in Sullivan County and bad check misdemeanors in Virginia prior to the 2001 convictions in that commonwealth. The judge stated, “[I]n this type of offense, the court is reluctant to incarcerate somebody, . . . but there can be a certain point reached where the integrity of the [c]ourts . . . reach a limit of how many times you can be put on [p]robation . . . .” The judge concluded that the succession of probations had “just run out of reason and that even though mitigation factors were present, the mitigation was recycled.” On April 21, 2004, the trial court ordered revocation of the defendant’s probation based upon the Virginia convictions and ordered the defendant to serve her two-year sentence in the Department of Correction. The defendant filed a timely notice of appeal. On appeal, the defendant claims that the trial court erred in ordering her to serve her sentence in confinement. We disagree. The standard of review upon appeal of an order revoking probation is abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order for an abuse of discretion to occur, the reviewing court must find that the record contains no substantial evidence to support the conclusion of the trial judge that a violation of the terms of probation has occurred. Id. The trial court is required only to find that the violation of probation occurred by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311(e) (2003). Upon finding a violation, the trial court is vested with the statutory authority to “revoke probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally entered.” Id. Furthermore, when probation is revoked, “the original judgment so rendered by the trial judge shall be in full force and effect from the date of the revocation of such suspension.” Id. § 40-35-310. Thus, the trial judge retains the discretionary authority to order the defendant to serve the original sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995). -2-  In this case, the trial judge expressed sympathy for the defendant’s plight, but he cited apt, substantial bases for ordering her sentence served in confinement. The judge was concerned not only that the defendant had amassed a long record of bad check or credit-related offenses, but also that she had received probation repeatedly. The court concluded that it could no longer nod to her lawless behavior, and the record supports this conclusion. The defendant has not shown that the trial court abused its discretion in ordering her to serve her two-year sentence. Accordingly, the order of the trial court is affirmed. ___________________________________ JAMES CURWOOD WITT, JR,. JUDGE -3- 

241 Cal.App.2d 440 (1966) 50 Cal. Rptr. 615 ALVIN E. CLAUSON, Plaintiff, Cross-defendant and Respondent, v. INDUSTRIAL INDEMNITY COMPANY, Defendant, Cross-complainant and Appellant; CALIFORNIA COMPENSATION & FIRE COMPANY et al., Cross-defendants and Respondents. Docket No. 11086. Court of Appeals of California, Third District. April 11, 1966. *441 Long & Levit, Bert W. Levit, Victor B. Levit, John B. Hoak and Gregory Archbald for Defendant, Cross-complainant and Appellant. Cooley, Crowley, Gaither, Godward, Castro & Huddleson, Thomas Hartwell, Leonard & Lyde and Raymond A. Leonard for Plaintiff, Cross-defendant and Respondent, and for Cross-defendants and Respondents. PIERCE, P.J. This appeal is by defendant and cross-complainant Industrial Indemnity Company (Industrial) from a judgment which holds Industrial solely liable to plaintiff for the latter's furniture store fire loss in the sum of $52,456.69. Liability was based upon an oral binder held to have been in effect at the time of the fire. A previous fire insurance policy covering the premises, written by cross-defendant California *442 Compensation & Fire Company (Cal Comp), was specially found by the jury to have been terminated and judgment was for that company. The court directed a verdict (which was returned and judgment entered thereon) in favor of cross-defendant Bryon Erdmann, the insurance broker who acted as agent for plaintiff (the insured) for both insurers. We disallow contentions (1) that the trial court improperly directed a verdict for Erdmann (2) that erroneous instructions regarding misrepresentation and concealment were given, (3) that Industrial was improperly nonsuited on the second cause of action of its cross-complaint, (4) that Industrial's binder had expired, and (5) that Cal Comp's policy had not been terminated. The facts are not complicated. Plaintiff Clauson owned a furniture store in Paradise, Butte County. Erdmann, an insurance broker, handled all of his insurance. Through Erdmann a standard commercial block policy of fire insurance was obtained with Cal Comp as insurer. The term for which it was written was from May 17, 1961, to May 17, 1964. Premiums fluctuated, being based upon reported inventory values. In December 1961 the coverage was $60,000. On December 19, 1961, plaintiff through Nelson, his son-in-law and store manager, asked Erdmann to investigate the possibility of obtaining a "package" policy which would include coverage of loss through business interruption after a fire. That coverage was not included in Cal Comp's policy. During the same phone call he told Erdmann the store inventory had risen and he desired that coverage be increased from $60,000 to $90,000. Erdmann replied that he was "bound" (i.e., covered) for the increased amount. An endorsement was sent to Clauson and Cal Comp was advised. On December 28, 1961, a representative of Cal Comp telephoned Erdmann's office, stating to one of the latter's employees that the insurer felt that $90,000 would be in excess of its "capacity"[1] for this particular risk and that it wished the coverage to be placed with another company. To give Erdmann an opportunity to obtain other insurance Cal Comp advised it would remain bound until January 8, 1962. Also stated was the insurer's willingness to take half of the desired coverage if another company would assume the other half. *443 On January 5, 1962, Erdmann, who had an agency agreement with Industrial, and who had been advised that that company wrote a "package" policy which included both the coverage in Clauson's existing policy and also the business interruption coverage which Clauson desired, phoned Timmermans in Sacramento. Timmermans is the "Property Lines Manager of the Sacramento Division" of Industrial, a position in which underwriting fire insurance coverage is his primary responsibility. All negotiations with Industrial were through Timmermans, and it is conceded he had full authority to act for and bind that company. Two telephone conversations were held between Erdmann and Timmermans that day. We state Timmermans' version: The first conversation was confined to a confirmation by him that his company did write a "package" policy of the type sought, and a statement by Erdmann of the premises sought to be covered. An appointment with Erdmann at the latter's office in Paradise was made for the following Thursday. There was a second conversation later that day. Between calls Timmermans consulted the rate book of the Pacific Fire Rating Bureau. From that authority he learned that although the City of Paradise had just been rerated "better" because of improved fire protection, Clauson's furniture store's rate had actually been increased rather than decreased. Twenty minutes after the first conversation Erdmann phoned again. He told Timmermans that he had discovered that the existing Clauson policy would "expire" on January 8, and since Timmermans' visit was not scheduled until after that date, he asked if Industrial would bind the risk from the 8th. Timmermans at first demurred upon the basis of the discovered increased rating of these premises but finally agreed to a temporary binder pending an investigation. On January 11 Timmermans and his associate, Richard Holmes, went to Paradise and examined the property. Holmes was a special agent of the underwriting department of Industrial. The two inspected the building. Erdmann joined them. Timmermans had noted that from four to six frame buildings adjoined the Clauson premises and said that additional hazards were presented thereby. He also pointed out defective wiring in Clauson's store which was visible. He told Erdmann Industrial would not be interested in writing a "package" policy. He did not then refuse a standard policy for $90,000. Nor did he cancel or give notice of cancellation of the binder. On the contrary, he told Erdmann: "We will keep this bound *444 for you as agreed to in our original temporary binder until such time as I can get a copy of the survey as originally agreed upon." The two representatives of Industrial returned to Sacramento where Timmermans sought the survey of the Pacific Fire Rating Bureau. It was made available to him on the following Tuesday, January 16. As a result of facts determined by this survey, Timmermans that same day wrote a memorandum to Erdmann. In it he asked that Industrial's coverage be "replaced." This memorandum was received by Erdmann on January 18. The fire occurred at 10:30 p.m. that night. No replacement of coverage had been obtained before the fire. Meanwhile, on December 29, 1961, Erdmann had sent a memorandum to Cal Comp acknowledging that the latter would be bound under its policy only until January 8, 1962, upon which date that insurer's liability would cease and the policy would be picked up and sent in for a pro rata cancellation. On January 15, 1962, Cal Comp wrote Erdmann, asking why its policy had not been returned and asking when it might expect to receive it. On January 17 Erdmann replied that the insured was presently bound with another company; that there was a possibility, however, that that company might wish to avail itself of Cal Comp's previously expressed willingness to divide the coverage. Erdmann stated Cal Comp would be advised shortly. Re: The Contention that Erdmann Misrepresented or Concealed a Material Fact. Although as originally pleaded and even when the trial began, Industrial's position had been that Erdmann and Clauson had intentionally, wilfully and fraudulently concealed from Industrial the existence of fire hazards known to them and unknown to Industrial — all contentions based upon intentional fraud were abandoned during the trial. Then and now Industrial relies solely upon Erdmann's misuse of the word "expire" in his conversation with Timmermans on January 5. It relies upon this (1) as entitling Industrial to have the question of Erdmann's liability go to the jury, (2) as causing error when the court instructed the jury that "one cannot be guilty of fraudulent concealment of that of which he has no knowledge," and (3) as constituting error when the court granted a nonsuit on Industrial's second cause of action which alleged that Clauson and Cal Comp had misrepresented that the latter's policy was "expiring." *445 [1] The evidence showed that there is a distinction in the parlance of insurance men between an "expiration" of an insurance policy and its cancellation of other termination. "Expiration" means that the policy has reached the end of the term for which it was written. A policy may also be terminated by either party upon a prescribed statutory notice or by mutual agreement. [2a] Erdmann testified that in his conversation of January 5 with Timmermans he told the latter that the existing coverage was "ceasing." (Cal Comp's representative had actually characterized that company's action as "retiring from the risk.") Since the court directed a verdict, we, as a reviewing court, must assume the jury, had it been permitted to, would have accepted Timmermans' testimony that Erdmann told him the existing coverage was "expiring." If this was a misstatement material to Industrial's assumption of the risk, then at least in connection with Industrial's first contention we would have to find error in the trial court's direction of a verdict in Erdmann's favor. [3] Erdmann was Industrial's agent and therefore had the status of a fiduciary towards it with a duty of good faith and loyalty (see 2 Cal.Jur.2d, Agency, § 104, p. 771, and cases cited), and if an agent negligently induces an insurer to assume insurance coverage on which it suffers a loss, the agent is liable. (4 Couch on Insurance 2d, § 26:343, p. 288.) [4] The test of the propriety of granting a directed verdict is the same as that involved when a nonsuit is granted. (Estate of Caspar, 172 Cal. 147, 149-150 [155 P. 631].) Neither may be granted unless there is a lack of substantial evidence supporting appellant's case, and its evidence must be given all the value to which it is legally entitled, including every legitimate inference which may be drawn therefrom. (Meyer v. Blackman, 59 Cal.2d 668, 671 [31 Cal. Rptr. 36, 381 P.2d 916].) [5] As regards the function of a reviewing court in considering an appeal from a judgment of nonsuit (or one following a directed verdict), it "must view the evidence as though judgment had gone in favor of the appellant and order a reversal if such judgment could be sustained. [Citation.]" (Guillory v. American President Lines, Ltd., 230 Cal. App.2d 296, 302 [40 Cal. Rptr. 796].) We have read the record with these rules in mind. Industrial argues that there was substantial evidence to support a jury verdict holding Erdmann because Timmermans testified he would not have given an oral binder had he known the true *446 circumstances of the cancellation of the Cal Comp policy. We cannot agree. As the court stated (per Justice Bray) in Guillory v. American President Lines, supra, at page 302: "`[B]efore a judgment of nonsuit can be disturbed, there must be some substance to plaintiff's evidence upon which reasonable minds could differ; ...'" (Italics supplied.) [2b] Therefore, the mere fact that Industrial's agent Timmermans stated that Erdmann's misuse of the word "expire" was material to the issuance of the oral binder does not necessarily make it so and does not necessarily even make it substantial evidence. If it can be said from the whole record that reasonable minds must concur that the statement, in spite of Timmermans' protestation to the contrary, was not material and that the evidence was not substantial, then the trial court properly took the issue from the jury. Insurance Code section 334 provides: "Materiality is to be determined not by the event, but solely by the probable and reasonable influence of the facts upon the party to whom the communication is due, in forming his estimate of the disadvantages of the proposed contract, or in making his inquiries." It appeared in evidence without real conflict that three factors are material to a fire underwriter's (and thus his company's) determination as to whether a specific risk will, or will not be, assumed and a fire insurance policy written (or binder given): (1) the moral hazard; (2) the physical hazard; and (3) the issuing company's "capacity." (See fn. 1.) (Although Timmermans in his testimony stated there were "many other factors" to be considered, it was obvious, when he was asked to enumerate these other factors, that all of them came within the category of either moral or physical hazards. He referred, for example, to "overinsurance" and "previous fire losses.") As regards the factor of moral hazard, he admitted it was nonexistent in this case.[2] He also conceded there had been no misrepresentation or concealment as to any physical hazard.[3] As regards the question of "capacity," he made it clear that if his was to be the only company on the risk he would not be interested in the "capacity" of another company which had *447 previously been on the risk.[4] Seemingly, in contradiction to that statement, Timmermans testified elsewhere that he would be interested in the capacity of the company previously carrying the insurance but on cross-examination it became obvious that this would only be in a situation where the previous company was canceling or reducing the previous policy because of some moral or physical hazard and a professed lack of "capacity" was being given as an excuse. In that case, he testified he would want to investigate the property and ascertain if there was some reason why the previous insurer was getting off the risk. There was no such situation here. Cal Comp was neither attempting to cancel nor to reduce the insurance coverage as such coverage had originally been written. The insured and not the insurer had been the active party seeking a change in coverage. First, he wanted a type of additional coverage — business loss — which Cal Comp apparently did not write, and secondly, he wanted additional coverage which Cal Comp felt a lack of "capacity" prevented it from assuming. The lack of "capacity" was no pretext; it was real. Moreover, by acts as well as words, Industrial demonstrated that Erdmann's misuse of the word "expire" was immaterial. All that Timmermans ever contended was that knowledge of the true situation as regards the circumstances of the cancellation of the Cal Comp policy would have caused him to "go to the locale and determine all the factors." Here he did investigate immediately after issuing the binder, and even after doing so and learning that which he now states would have caused him to refuse to bind, he expressly continued the binder in effect. He and his associate had visited the premises knowing of its uprating; they inspected the premises and observed defective wiring; they inspected the neighborhood, finding additional physical hazards there. Notice of termination of the binder could have been given then and there. (We will discuss this below.) Instead, Timmermans agreed when he left the premises that the binder would continue in effect — at least until the Pacific Fire Rating Bureau's survey had been examined. Although the testimony of a witness as to his own state of mind is admissible, circumstantial evidence, as this court had occasion recently to state, per Justice Friedman, in Dowden v. *448 Industrial Acc. Com., 223 Cal. App.2d 124, at page 132 [35 Cal. Rptr. 541], "may justify or even compel a finding" contrary to the professed state of mind. (Italics supplied.) (And see footnote 3 on page 132 of the Dowden decision, particularly the statement: "Historically, the courts have recognized the danger inherent in permitting an interested person to describe his own state of mind as he pleases. (2 Wigmore, ... [on Evidence (3d ed.)] § 580.) While modern rules of evidence seldom reject such declarations, the caution should persist.") We hold there was no substantial evidence that Erdmann's misuse of "expire" had any materiality whatever to Industrial's agreement to be bound and that the trial court properly directed a verdict in its favor. The stated conclusion also supports the challenged jury instruction and the nonsuit granted on the second cause of action. Re: The Contention that Industrial's Binder Expired of its own Terms or When Timmermans' Memo Reached Erdmann. [6] Because, according to Timmermans, Industrial's oral binder was stated in the following terms, "Well, I will bind this for you and I will issue a temporary binder for you until I can come up and inspect the premises personally, and also that we can get a copy of the survey from the rating bureau and determine exactly what the cause of the rate increase instead of the decrease is," it is urged that Industrial's binder had already expired "by its own terms" before the fire loss occurred. But the language quoted does not permit that interpretation. All that it reasonably can be said to mean is this: that Industrial is binding the risk temporarily until after it investigates the risk; it shall then determine whether or not it wishes to issue a policy. If it does, the policy issued will supersede the binder; if it does not, Industrial will then take steps to terminate the binder. And that is the way Industrial itself interpreted the binder, as shown both by Timmermans' testimony and his subsequent acts. Timmermans, on cross-examination, conceded: That ordinarily a binder will be either for a fixed date or period certain or until a reasonable notice has been given; that he (and therefore Industrial) knew that the binder given in this case followed the termination of the only policy of fire insurance covering Clauson's premises; that the purpose of a binder is to provide protection while things are worked out; that "it would be against the grain normally [for] an insurance company *449 to ... pull the rug out," leaving the property owner uninsured; that when a company which has issued a temporary binder decides it does not wish to write a policy the normal procedure is for it to give reasonable notice so that the insured or his broker will have an opportunity to replace coverage. He also was aware it would be difficult for a broker to obtain such replacement within a few hours. He offered no explanation of any intent to depart from the normal procedure in this case. And it is clear there was no such intent. As it was stated, the binder did not expire either on a date or contingency certain. Moreover, when Industrial finally did decide to terminate the binder the instrument stating that determination did not contemplate an immediate termination. In the memorandum of January 16 written by Timmermans to Erdmann it was stated: "I know that you will agree with me By [Erdmann's nickname] that under the circumstances we should be relieved of liability under our binder. I would appreciate your write [sic] me immediately that our liability has been replaced. Thanks." (Italics supplied.) Timmermans testified, stating his understanding of the meaning of the word "replaced": "Q. Now, isn't it correct that the term `replacement' means to substitute for something which is now existing for something else? A. That would be the normal interpretation." Again it is quite apparent that after the loss occurred Timmermans did not then consider the binder he had given had already expired. When Erdmann phoned Timmermans and advised him of the fire, the latter stated the matter would be turned over to Industrial's claims department. We hold that the court correctly instructed the jury that the binder had not expired by its own terms, and we also hold that it correctly ruled that Timmermans' memorandum of January 16, requesting Erdmann to "replace" the coverage, was intended to give him a reasonable time so to do, which had not elapsed when the fire occurred. Any other interpretation would be unreasonable. The assertion of the rule contended for would relegate "binders" such as this to a status of will-o-the-wisp uncertainty, a consequence as disastrous to insurers as it would be to the insured treated as a class. The authorities cited by Industrial all involved binders with specified expiration dates or containing a fixed terminating event (e.g., liability insurance during a specific trip as in Ward v. Gregory (Mo. 1957) 305 S.W.2d 499, or fire insurance *450 during a hop drying operation as in Leach v. Anderson, 85 N.Y. 632.) These cases are so obviously distinguishable that no useful purpose could be served by discussing them. Of the California cases cited, Meadows v. Emett & Chandler, 86 Cal. App.2d 1 [193 P.2d 785], in a footnote definition of "binder" (on p. 7) states that the binder continues "`until the policy is issued or the risk is declined and notice thereof given.'" (Italics supplied.) Similarly, in Apparel Mfrs. Supply Co. v. National Auto. & Cas. Ins. Co., 189 Cal. App.2d 443 [11 Cal. Rptr. 380], it was held the binder remained in effect until notice given. [7] When no time is specified within which the act called for by a notice must be done, a reasonable time is implied. (See 9 Couch on Insurance 2d, § 39:207, fns. 9, 10, p. 562; see also 7 Williston on Contracts (3d ed.) sec. 920, p. 623.) Re: The Contention that the Cal Comp Policy had Not Terminated. As stated above the jury made a special finding that the Cal Comp policy had terminated on January 8. Industrial argues that substantial evidence does not support that finding. We experience some difficulty in following Industrial's argument in this respect. The contention apparently is that there was no termination because Cal Comp entered into a separate loan agreement with Clauson, advancing him money sufficient to meet a portion of his fire loss immediately, or perhaps because Cal Comp on and after December 28, 1961, had been willing to participate in the coverage of a new policy. Or perhaps the claim is based upon the fact that the policy had not been delivered up physically. Whatever the basis of the contention, it is untenable. [8] The facts recited above show there was an unequivocal termination of the Cal Comp policy by mutual agreement. On December 28, 1961, Mr. Lopache of Cal Comp phoned Erdmann that the policy would be cancelled as of January 8. December 29 Erdmann, as Clauson's agent, sent a memorandum to Cal Comp: "[W]e shall consider coverage bound until January 8, 1962, and at that time we will pick up the policy for return and pro/rata cancellation." Timmermans was advised of this on January 5 and replaced the Cal Comp insurance with his binder. The loan made after the loss was a separate transaction. The fact that Cal Comp at all times was willing to accept 50 percent of the coverage on a new policy (which was never written) or that the physical act of the surrender of the written instrument was not consummated has *451 no bearing on the matter. There had been a complete meeting of the minds on the cancellation of the Cal Comp policy. (Glens Falls Ins. Co. v. Founders' Ins. Co., 209 Cal. App.2d 157, 168 [25 Cal. Rptr. 753, 3 A.L.R.3d 1058].) The judgment is affirmed. Friedman, J., and Bray, J.,[*] concurred. A petition for a rehearing was denied May 3, 1966, and appellant's petition for a hearing by the Supreme Court was denied June 8, 1966. NOTES [1] "Capacity" is defined as being the extent to which a company with a given amount of assets will give coverage on a particular risk. The limit is fixed internally by each company acting under its own rules. [2] He testified: "Q. Did you have any reason to believe that there was any question concerning the moral hazard? A. No, there was no question of that. Q. No question of concealment or misrepresentation on the moral hazard? A. No, sir." [3] He testified: "Q. [There was] no question of concealment or misrepresentation of the physical hazard? A. No, sir." [4] He testified: "Q. And you were not interested in the capacity of another company? A. Well, not as such, no." He also testified: "And in fact, it is not even material to you to know what another company's capacity is? A. Not if you are the only company on the risk, it is not." [*] Retired Presiding Justice of the District Court of Appeal sitting under assignment by the Chairman of the Judicial Council.

406 Pa. Superior Ct. 513 (1991) 594 A.2d 737 Jeremiah ANDERSON and Linda Anderson, his Wife v. CENTENNIAL HOMES, INC., Appellant. Superior Court of Pennsylvania. Submitted May 9, 1991. Filed August 7, 1991. *515 Michael R. Mey, Wilkes-Barre, for appellant. Steven D. Gladstone, Tannersville, for appellees. Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ. CIRILLO, Judge: Centennial Homes, Inc. ("Centennial") appeals from an order entered in the Monroe County Court of Common Pleas denying its motion to reinstate its appeal and denying its motion to open a default judgment. We affirm. On July 17, 1989, Jeremiah and Linda Anderson filed an action against Centennial before District Justice Charles P. Eyer. In their complaint, the Andersons claimed that Centennial wrongfully removed trees from their property. A hearing was scheduled for September 1, 1989 at which time judgment was entered against Centennial for failure to appear. See Pa.R.C.P.D.J. 319 B. On September 12, 1989, Centennial filed a notice of appeal to the Monroe County Court of Common Pleas. On September 19, 1989, notice of Centennial's appeal and rule to file complaint was served upon the district justice and the Andersons. It is unclear from the record if proof of service of the copies of the *516 notice of appeal and rule to file complaint was ever filed with the Monroe County Prothonotary. In any event, on October 3, 1989, Centennial's appeal was stricken for failure to comply with Pennsylvania Rule of Civil Procedure for District Justices 1005B. See Pa.R.C.P.D.J. 1006.[1] Centennial thereafter filed a motion to open judgment or reinstate the appeal. The trial court denied both motions and this timely appeal followed.[2] On appeal, Centennial raises the following issue: Is the Appellant entitled to have the Judgment entered against it opened and/or have its appeal reinstated? Centennial argues that although it did not technically comply with Pa.R.C.P.D.J. 1005 B, since the Andersons did receive actual notice of Centennial's appeal to the court of common pleas and because the Andersons suffered no prejudice, its appeal should be reinstated. Centennial reminds us that Pennsylvania Rule of Civil Procedure 126 allows the trial courts to disregard "any defect or rule of procedure which does not affect the substantial rights of the parties." Pa.R.C.P. 126. Centennial concedes that it did not comply with Pa.R.C.P.D.J. 1005 B. Namely, Centennial did not file proof of service of copies of its notice of appeal and rule to file a complaint with the prothonotary of Monroe County within five days after filing its notice of appeal. At the Andersons' request and pursuant to Pa.R.C.P.D.J. 1006, Centennial's appeal was stricken for failure to comply with rule 1005 B. Pa.R.C.P.D.J. 1006, however, provides that the "court of common pleas may reinstate the appeal upon good cause shown." Pa.R.C.P.D.J. 1006 (emphasis added). *517 "Good cause" is not defined in the rules governing district justice proceedings. Black's Law Dictionary defines good cause as a [s]ubstantial reason, one that affords a legal excuse. Legally sufficient ground or reason. Phrase "good cause" depends upon circumstances of individual case, and finding of its existence lies largely in discretion of officer or court to which decision is committed. . . . "Good cause" is a relative and highly abstract term, and its meaning must be determined not only by verbal context of statute in which term is employed but also by context of action and procedures involved in type of case presented. . . . Black's Law Dictionary 623 (5th ed. 1979) (emphasis original citations omitted). While the term good cause may be difficult to define, it is clear that Centennial must proffer some legally sufficient reason for the trial court to reinstate its appeal. We also emphasize that the determination of whether good cause has been demonstrated is trusted to the trial court's sound discretion. See State Farm Insurance Companies v. Swantner, 406 Pa.Super. 235, 594 A.2d 316 (1991) (en banc) (giving trial court's broad discretion to determine whether good cause has been demonstrated to compel an insured to submit to an independent medical examination). Centennial, however, offered no explanation to the trial court, or to this court, for its failure to file proof of service of copies of its notice of appeal and rule to file complaint within five days after filing its notice of appeal. Clearly, in attempting to demonstrate good cause for reinstating an appeal, Centennial should explain its reasons, if any, for failing to comply with the provisions which caused the appeal to be stricken. Centennial, rather than attempting to explain its reasons for not complying with rule 1005B, merely claims that since it acted as diligently as possible under the circumstances and since the Andersons' rights were not substantially affected by its noncompliance, its appeal should be reinstated. *518 Rule 1006 is discretionary with the trial court and is intended to provide sanctions for failing to act within the prescribed time limits of the relevant rules of procedure. Pa.R.C.P.D.J. 1006, note. Pa.R.C.P. 126, which allows the trial court to disregard procedural errors which do not substantially affect the rights of the parties, is likewise discretionary with the trial court. We remind Centennial that while the trial court may ignore procedural noncompliance, it is not required to do so. See Pa.R.C.P. 126. Here, Centennial, without an explanation, failed to comply with rule 1005 B. We find that simply stating that the instant noncompliance did not substantially affect the rights of the Andersons is not alone sufficient to demonstrate good cause to reinstate the appeal. In short, we cannot find that under the circumstances the trial court abused its discretion when it refused to reinstate Centennial's appeal. Cf. Friedman v. Lubecki, 362 Pa.Super. 499, 524 A.2d 987 (1987) (discussing good cause for failure to comply with Pa.R.C.P.D.J. 1004 A); Quarato v. Facelifters, 305 Pa.Super. 536, 451 A.2d 777 (1982) (appeal reinstated where appellants essentially complied with Pa.R.C.P.D.J. 1005 B, but failed to attach sender's receipt to affidavit as required by Pa. R.C.P.D.J. 1001). See also 25 Standard Pennsylvania Practice 2d § 130:166 (1984) ("An appeal from a decision of a district justice which has been stricken should be reinstated only under exceptional circumstances"). Centennial also claims that the trial court erred in refusing to open the default judgment entered by the district justice. This argument, however, is misplaced. A petition to open a default judgment is initially presented to the court which entered the default judgment. See Deviney v. Lynch, 372 Pa. 570, 94 A.2d 578 (1953); Lance v. Mann, 360 Pa. 26, 60 A.2d 35 (1948); see also 12 Standard Pennsylvania Practice § 71:39 (1983) (unless otherwise provided by statute, it is not within the power of one court to open the judgment of another court). As such, a petition to open judgment is an appeal to that court's equitable powers. Hanna v. Dey Computer Systems, Inc., 386 Pa.Super. 8, *519 562 A.2d 327, 328 (1989). Here, the default judgment was entered by the district justice when Centennial failed to appear. See Pa.R.C.P.D.J. 319 B. This judgment was appealed to the Monroe County Court of Common Pleas. A properly executed appeal to a court of common pleas permits a de novo proceeding and, unless the judgment is for the possession of real property, operates as an automatic supersedeas. Pa.R.C.P.D.J. 1008, 1008 B. See 25 Standard Pennsylvania Practice § 130:167 (1984). Consequently, it would seem needless to file a petition to open judgment entered by a district justice when an appeal from that judgment to the court of common pleas results in a de novo proceeding that stays the previous judgment. Moreover, the relevant rules of procedure governing district justice proceedings do not provide for motions to reconsider judgments entered. See Pa.R.C.P.D.J. 1 et seq. Appealing the district justice judgment to the relevant court of common pleas, not asking the district justice to reconsider its ruling, is the proper method of obtaining review of the judgment. Again, since a properly executed appeal from a judgment entered by a district justice results in a de novo proceeding in the court of common pleas, such motions for reconsideration would be superfluous. Clearly, since the case is tried de novo in the court of common pleas, the effect of reinstating Centennial's appeal to the court of common pleas is to suspend the effect of the default judgment entered by the district justice. See Pa.R.C.P.D.J. 1007. Unfortunately, Centennial failed to perfect its right to appeal the district justice judgment, and has failed to demonstrate that the trial court abused its discretion in denying its request to reinstate the appeal. Plainly, if the appeal is stricken the district justice judgment remains final. See Pa.R.C.P.D.J. 1008 C ("If an appeal is stricken,. . . any supersedeas based on it shall terminate"). Further, if the court of common pleas has declined to reinstate Centennial's appeal, it has no jurisdiction to entertain petitions to open a judgment which it has declined to review. *520 Here, Centennial, in an apparent effort to pursue all possible avenues of relief, simultaneously argued that its appeal should be reinstated and that the judgment should be opened. However, as stated earlier, we find that where the appeal is not reinstated, a petition to open the judgment which was the subject of the attempted appeal, should not, and indeed cannot, properly be entertained. Order affirmed. NOTES [1] Pa.R.C.P.D.J. 1006 provides: Upon failure of the appellant to comply with Rule 1004 A or Rule 1005 B, the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown. Pa.R.C.P.D.J. 1006 (emphasis added). [2] We note that an order denying a motion to reinstate an appeal is a final order for purposes of appeal. Jay Dee Department Store v. Penn Gas, 362 Pa.Super. 404, 524 A.2d 940 (1987).

J-A19023-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 C.S. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. B.M. Appellant No. 2053 WDA 2014 Appeal from the Order Entered November 24, 2014 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD01-08702-004 BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J. MEMORANDUM BY JENKINS, J.: FILED OCTOBER 05, 2015 D.M. (“Mother”) appeals from the November 21, 2014 order entered in the Allegheny County Court of Common Pleas granting C.S. (“Father”) primary physical and legal custody of Daughter and primary physical custody and sole legal custody regarding school decisions of Son.1 We affirm. The trial court set forth the following history: The parties are parents to two children, Daughter A.S. (DOB [12/1998]) and Son C.T.S. (DOB [9/2000]). Litigation on issues of custody began in 2001 and has continued at a fairly regular pace.2 The parties divorced in 2004, and both have subsequently remarried. Father and Ca.S. (hereinafter “Stepmother”) have a seven-year-old son, S.S., who is a half-brother to the children. Mother has no other children with her current husband, T.M. (hereinafter “Stepfather.”) The relevant history of the present custody dispute began roughly in 2012, when ____________________________________________ 1 Father chose to not submit an appellate brief. J-A19023-15 Mother became the primary physical custodian of the parties’ minor children. Daughter was 13, and Son was 11. Daughter testified that there was a great deal of tension when she lived with her [m]other. Son apparently did not have such conflict with Mother. Both children struggled in school. Son repeated the sixth grade. The tension between Daughter and Mother continued to the point where Daughter began hurting herself. The self- harm culminated with her suicide attempt in April 2013. Thereafter, Daughter had made it known that she was victim of Mother’s half-brother’s sexual abuse. 2 The extensive docket is a graphic representation of the acrimony between the parents. In April 2013, [the trial c]ourt granted Father interim physical and legal custody of Daughter. Father petitioned the [c]ourt to modify custody. Continuations and disagreements regarding psychological evaluations extended litigation. The matter was finally heard on October 24, 2014. The trial was then extended over the course of three more dates: October 28, 2014, to November 13, 2014 and ended on November 20, 2014. On November 20, 2014, after four days[’] worth of testimony, [the trial c]ourt announced its decision from the bench and discussed its findings on the record. See T4, at 137-164. That discussion included the [c]ourt’s findings per the custody factors enumerated in 23 Pa.C.S.A. §5328(a). The [c]ourt memorialized its decision by way of the November 21, 2014 [o]rder of [c]ourt, which provoked the subject appeal. 1925(a) Opinion (“Opinion”), 2/3/2015, at 1-2. The custody order provides, in relevant part: AND NOW, this 21st day of November, 2014, after four days of trial on October 24, 2014, October 28, 2014, November 13, 2014 and November 20, 2014 to consider Plaintiff’s Petition to Modify Custody and Defendant’s Petition for Special Relief with [Father] having appeared with counsel and [Mother] having appeared with counsel, it is hereby ORDERED, ADJUDGED, and DECREED as follows: -2- J-A19023-15 1. Custody of [Daughter]: Father shall have primary physical and legal custody of the minor [Daughter]. 2. Mother and [Daughter] shall participate in reunification therapy. a. Mother shall select and schedule therapy every other week with [Daughter]. Such therapist shall have an office within 10 miles of Father’s home. Mother shall schedule the therapy after school or on weekends and not schedule the therapy on days where [Daughter] has an activity. i. For every therapy session, Mother and Father shall share equally the co-pay with the therapist. Father shall send his share of the co-pay with [Daughter]. If [M]other selects a therapist who requires co-pay in excess of a total of Twenty Dollars ($20.00), Mother shall pay the remaining balance of the excess co- pay. ii. Mother shall pick up and drop off [Daughter] at Father’s home if [Daughter] agrees. Alternatively, Mother may arrange for and pay for a taxi service to take [Daughter] from Father’s house to the therapist and Father shall pick [Daughter] up from the therapist after the session. Father and [Stepmother] shall remain in the home or in the car during the exchange and shall not communicate in any way with Mother at the exchange. iii. Both parents shall be present and attend the therapy sessions only as specifically directed by the therapist in advance of the appointment. b. If Mother and [Daughter] would like to have visits outside of the therapeutic visits, these visits can be discussed and scheduled within the therapeutic setting, and memorialized in writing between [Daughter] and Mother. c. Father shall respect such written arrangements including overnights and weekends at Mother’s home if [Daughter] agrees. d. These scheduled visits shall respect [Daughter’s] already existing obligations and activities. -3- J-A19023-15 e. Father shall send a written calendar to each therapeutic appointment containing any very significant family events that would create conflicts that would preclude [Daughter] from scheduling a visit with her mother in the upcoming month. f. Mother shall provide all transportation for these visits with [Daughter]. 3. Custody of [Son]: Father shall have primary physical custody of [Son]. Father shall have sole legal custody with regards to making school choices for [Son]. Mother and Father shall share legal custody regarding all other issues. a. [Son’s] School Year: Father shall have custody of [Son] during the school year. This schedule shall begin after Christmas on December 31, 2014 at noon through that week and the weekend that follows. Mother shall have every other weekend thereafter beginning Friday after school, when Mother picks [Son] up at school until Monday morning before school when Mother shall drop [Son] off at school. b. [Son’s] Summer Vacation: Mother shall have custody of [Son] primarily during the summer vacation from school. Mother’s schedule with [Son] shall begin the first Friday after the last day of school until the Friday of the following week at 4:00 p.m. when Father’s weekend shall begin. Then Father shall have every other weekend during the summer beginning Friday at 4:00 p.m. until Monday morning before Father starts work when he will drop [Son] off at Mother’s home. Father shall pick up and drop off [Son] from Mother’s home and remain in his car during the exchange and shall not communicate in any way with Mother at the exchange. ... Order, 11/21/2014. Mother filed a timely notice of appeal and statement of matters complained of on appeal. The trial court filed an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925. -4- J-A19023-15 At argument before this Court on July 7, 2015, it became apparent that proceedings subsequent to the November 21, 2014 custody order had occurred in the trial court, which potentially impacted the custody order. On August 11, 2015, this Court remanded to the trial court to supplement the record or conduct additional hearings as necessary.2 On August 20, 2015, the trial court filed “Further Findings of Fact,” clarifying that the June, 2015 conciliation proceedings addressed a motion for contempt3 filed by Mother and resulted in an interim order temporarily providing custody of Daughter to Mother because Father was not permitting Daughter to visit Mother as Daughter wanted. Further Findings of Facts at 2; Interim Order of Court, ____________________________________________ 2 This Court’s August 11, 2015 Judgment Order vacated the November 2014 trial court order. On September 10, 2015, this Court amended its August 11, 2015 Judgment Order to reinstate the November Order. 3 Mother entitled the pro se motion a “petition for custody,” but the court interpreted it as a motion for contempt because Father refused to release Daughter. The trial court explained: [D]ue to the grave safety concerns, the allegations of contempt, and [the trial court’s] knowledge of Daughter’s mental health issue, [the trial court] set the matter for a conciliation to discuss matters for contempt and issues of safety and arranged for an in camera interview with Daughter to determine how best to proceed. On June 17, 2015, following the conciliation and interview with Daughter, [the trial court] allowed Daughter to stay with Mother on an interim basis while Daughter discussed in therapy with her parents and a mental health professional her desire to move to Mississippi with paternal aunt. Further Findings of Fact at 2. -5- J-A19023-15 6/17/2015. The June order did not alter the November custody order, which permitted Mother and Daughter to agree to visits outside of therapy. Further Findings of Fact at 3. On August 20, 2015, the trial court issued an order vacating its June Order.4 Mother raises the following claims: 1. Whether the trial court ignored the best interest of the child and erred by granting [M]other no partial custody of Daughter (except to take her to counseling) which is detrimental to the reunification of Mother with the child; 2. Whether the trial court erred in basing its decision to transfer primary physical custody of Son from Mother to Father on the child’s grades where there was no credible record evidence of the same or, to the extent there was such evidence, in ignoring that the child might simply not be a stellar student and not every child is capable of exemplary academic achievement; 3. Whether the trial court ignored the best interest of the child and erred by granting custody of Son, to Father given: a. The child’s strong, unequivocal reasoned preference to be with Mother; b. The child’s strained relationship with [Stepmother] and excellent relationship with [Stepfather]; ____________________________________________ 4 On July 29, 2015, Father filed a petition for special relief, raising contempt issues and requesting that Daughter be permitted to attend school in Mississippi with relatives. Further Findings of Fact at 2-3. The court conducted another conciliation. The trial court found the contempt issues moot because the trial court reinstated the November order. Id. at 4-5. Further, it found the November order would allow Father to send Daughter to stay with relatives while she continued her schooling. Id. at 5. -6- J-A19023-15 c. The need for stability and continuity, in the child’s life [] by taking the child away from his home, school, friends, neighborhood, and activities. Appellant’s Brief at 11. Our scope and standard of review of child custody orders are as follows: [O]ur scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. J.M.R. v. J.M, 1 A.3d 902 (Pa.Super.2010) (quoting Collins v. Collins, 897 A.2d 466, 471 (Pa.Super.2006)). “The primary concern in any custody case is the best interests of the child.” J.M.R., 1 A.3d at 900. “The best-interests standard, decided on a case-by-case basis, considers all factors that legitimately have an effect upon the child’s physical, intellectual, moral, and spiritual well being.” Id. (citing Saintz v. Rinker, 902 A.2d 509, 512 (Pa.Super.2006)). When determining whether modification of a custody order “is in a child’s best interest, the court has an obligation to consider all relevant factors that could affect the child’s well-being.” Id. (quoting Ketterer v. Seifert, 902 -7- J-A19023-15 A.2d 533, 539 (Pa.Super.2006)). Specifically, pursuant to 23 Pa.C.S. § 5328: In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following: (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party. (2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services). (3) The parental duties performed by each party on behalf of the child. (4) The need for stability and continuity in the child’s education, family life and community life. (5) The availability of extended family. (6) The child’s sibling relationships. (7) The well-reasoned preference of the child, based on the child’s maturity and judgment. (8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm. (9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs. -8- J-A19023-15 (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child. (11) The proximity of the residences of the parties. (12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements. (13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party. (14) The history of drug or alcohol abuse of a party or member of a party’s household. (15) The mental and physical condition of a party or member of a party’s household. (16) Any other relevant factor. 23 Pa.C.S. § 5328. Further, the “party seeking modification of custody arrangements has the burden to show that modification is in the child’s best interest.” Id. A. Custody of Daughter Mother’s first issue challenges the trial court order granting Father primary physical and legal custody of Daughter. Mother claims the November order, which limits Mother’s visits with Daughter to semi-weekly reunification counseling sessions and other visits only if Mother and Daughter agree to meet, violates the public policy of Pennsylvania, which guards the rights of non-custodial parents. Appellant’s Brief at 22-24. She further references supervised visitation, which, she alleges, is employed only for “compelling circumstances” and where it would -9- J-A19023-15 be the “least restrictive alternative.” Id. at 24. Mother argues the order does not even grant supervised visitation, rather it allows Daughter to determine whether she and Mother will have contact. Id. Mother argues the trial court’s conclusion that “Daughter is a danger to herself while in Mother’s care” and its statement that the trial court’s “concern for Daughter’s safety decided the matter” are not supported by the record. Appellant’s Brief at 25. Mother claims “[t]he only evidence of any ‘suicide attempt’ was Daughter’s in camera testimony: ‘and then there was a couple times I tried to kill myself.’” Id. at 25. She claims the only testimony about a Facebook message was from Mother, who testified Daughter posted the word “Good-bye” on her Facebook page. Mother also claims the trial court mischaracterized the testimony regarding the sexual abuse and harassment of Daughter by Mother’s half- brother. Appellant’s Brief at 26. Mother claims there were no allegations of abuse. Rather, Daughter testified the half-brother “sexually harassed” her. Id. She notes that there were no founded Allegheny County Children Youth and Families reports or criminal proceedings, no dependency proceedings, and no evidence at trial that “Mother’s half-brother behaved at all inappropriately towards Daughter.” Id. at 26-27. The trial court noted its custody decision was “influenced a great deal by safety concerns; namely, Daughter is a danger to herself while in Mother’s care.” Opinion, 2/3/2015, at 4. The trial court made the following findings: - 10 - J-A19023-15 Mother initially had primary physical custody of Daughter after a trial was held in January 2012. The trial did little to stop the litigation as the docket remained active in the months that followed. In April 2013, Daughter sent a detailed Facebook message to Father’s sister interpreted by all as a suicide note.[5] Father’s sister informed Father who informed the police. Daughter testified that she tried to kill herself. Daughter was then taken to the Sewickley Valley Hospital emergency room. Thereafter, she checked herself into a mental health facility called Southwood. Upon her release two weeks later, Daughter was placed in Father’s custody in the interim while she received treatment. Sometime thereafter, it was revealed that Daughter had been, for years, sexually abused and sexually harassed by Mother’s half-brother, who is allegedly a couple years older than Daughter. At age 12, Daughter reported this to Mother, but Mother refused to believe her. Worse still, Mother encouraged Daughter not to say bad things about the family. To this day, Mother refuses to believe Daughter despite the fact that Daughter’s accusations have led to multiple investigations, and despite the fact that Daughter has sought and received therapy from a variety of mental health professionals, including the Center for Traumatic Stress. Mother has refused to believe Daughter even after she started cutting herself, even after she started doing poorly in school, and even after Daughter tried to kill herself. Despite it all, Mother has never spoken with her half-brother about the allegations. Mother believes that Father and Stepmother have put the child up to making such allegations. Mother calls Daughter a lair. Naturally, this has led to the disintegration of the Mother- Daughter relationship. Daughter testified that she loves Mother and that she even misses her. But Daughter was adamant that she does not trust her. To Daughter’s great ____________________________________________ 5 Daughter communicated with her Aunt through Facebook and following either one of these exchanges or the “Good-bye” message, her Aunt became concerned and called the police. N.T., 10/24/2014, at 214-15; N.T., 11/20/2015, at 17-18. Mother took Daughter to Sewickley Valley Hospital. N.T., 11/20/2015, at 18. - 11 - J-A19023-15 credit, she still attempts to salvage her relationship with her Mother, but on her own terms. Those terms include reunification therapy and visitation only under conditions with which Daughter is comfortable.3 But to date, Mother had largely obstructed the reunification process. 3 Daughter displayed significant maturity as she outlined her insights and the terms necessary for a relationship with Mother, while at the same time protected her ongoing recovery from the abuse. As to the actual therapy, Daughter testified that Mother refuses to think that the therapy is for both of them — that Mother thinks that she is simply taking the child to see a therapist. Eventually the sessions with the therapist ceased prematurely, because Mother, allegedly not seeing the point, refused to pay the $25 co-pay. Apparently Mother believed that going out to dinner with Daughter would be better. Mother seemingly argued that Father should have to pay the copay, per the child support order’s language regarding unreimbursed medical expenses. [The c]ourt also notes its disappointment with Father, as he had an opportunity to keep the therapy going by paying the co- pay in full while the issue was resolved. In the absence of this therapy, Daughter has resorted to seeing the school counselor once per week. Mother and Daughter’s visitation has been equally problematic. In the months prior to trial, [the c]ourt twice contemplated and adjudicated disputes regarding the visitation arrangement between Mother and Daughter. The first was after the [c]ourt interviewed the child during a conciliation, which resulted in the April 28, 2014 [o]rder of [c]ourt. Another [o]rder of [c]ourt was issued on July 10, 2014, adding the specificity which was apparently lacking in the first order. The visitation arrangement was designed to be in public (a Starbucks at an outdoor mall), brief, and somewhat supervised by Father so that Daughter felt comfortable and safe. Daughter requested, and this Court ordered, that Father was to sit a few tables away so that Daughter could feel it was within her power to leave if the visit soured. So as to make Daughter feel that it was within her power to get up and leave of her own free will, Daughter requested, and [the c]ourt ordered, that Father was to sit a few tables away. The - 12 - J-A19023-15 supervision was necessary so that Daughter could terminate the conversation if she felt manipulated, or “pulled in” by Mother’s words. Despite [the c]ourt’s careful explanation of said arrangement, Mother feigned ignorance and proceeded with a disturbing lack of compassion for the trauma that Daughter faced. In two instances, Mother invited to the visitation Mother’s girlfriends, all of whom were old family friends who have children Daughter’s age. In one visit, two of Mother’s friends sought to catch up with Daughter and remind her of friends that Daughter has not seen since she left Mother’s custody. In the next visit, Mother sent these same friends to let Daughter know that she was running late to the visit. At best, such decisions represent Mother’s poor judgment. The fact that Mother sought to catch up with old friends and invite them to her Daughter’s reunification visitations, or, that she ran 15 minutes late to a one-hour, once-weekly reunification visit, could be indicative of a belief that such visits are not particularly serious. Perhaps that was the case. At worst, Mother’s moves were designed to play on Daughter’s guilt for leaving Mother (and especially Son) and to create conflict with Father. Mother’s testimony regarding these visits was simply not believable and such testimony seriously damaged her credibility. Mother testified that Mother and Daughter were very happy to see each other at one of the visits, where they talked about memories and old pictures. Mother testified that Daughter is very happy to see her but that Daughter will “switch” when Father makes his presence known during the visitation. Daughter has asked Mother to apologize for not believing her sexual abuse claims. Mother thinks that is strange and that Father is putting Daughter up to it. Mother thinks that Daughter speaks and acts coolly toward her because Father is around. Mother is blinded by her belief that the disintegration of her relationship with Daughter is of Father and Stepmother’s doing, not her own. For his part, Father handled the situation terribly. He was publicly argumentative and disparaging in front of Daughter. If Father thought his response to Mother’s transgression was justified, he is sorely mistaken and would do well to act more appropriately. - 13 - J-A19023-15 The [c]ourt takes the time to detail these aspects, because its decision to keep Daughter with Father is fundamentally one of safety. Opinion, 2/3/2015, at 4-7 (internal citations omitted). Additionally, the trial court conducted a comprehensive discussion of the custody factors following the trial. See N.T., 11/20/2014, at 137-150 (finding: (1) neither party would encourage and permit frequent and continuing contact with Daughter and other party; (2) Daughter was victim of sexual assault in Mother’s care, which Mother would not acknowledge; (3) Father provided safe and stable household for Daughter; (4) Daughter “transferred allegiance to [Father’s] household and community and has made a successful transition to the academic and social environment” at her new school; (5) no evidence of extended family, except stepparents, who have been supportive of Daughter; (6) sibling relationship is important; (7) both parents have attempted to turn Daughter against other parent; (8) Father has more stable, consistent, and nurturing relationship for Daughter’s current needs; (9) Father more likely to attend to educational, emotional, physical and developmental needs of Daughter; (10) no history of drug and alcohol abuse; and (11) no issue of physical or mental condition that would impact case; and awarding primary physical and legal custody of Daughter to Father and requiring Mother and Daughter to attend therapy and, permitting additional visits if Mother and Daughter agreed). The court also made factual findings and discussed the custody factors in its 1925(a) opinion. Opinion, 2/3/2015, at 4-9, 17 (noting: (1) Mother refused to - 14 - J-A19023-15 believe Daughter was abused or that therapy was for both Mother and Daughter; (2) Mother and Daughter visits have been problematic; (3) Father has obstructed the reunification of Mother and Daughter; (4) court’s “concern for Daughter’s safety decided the matter”; and (5) although Daughter expressed desire to have relationship with Mother, “[b]ecause her relationship was so damaged with [Mother], and because Daughter has excelled in her recovery under Father’s custody, [the court found] Father is more likely to maintain the right parental relationship necessary for Daughter’s emotional needs” and finding: (1) neither party encourages and permits frequent and continuing contact between Child and other party; (2) threat of abuse of Daughter no longer present, but Daughter is threat to herself if in Mother’s care; (3) Father performed all parental duties well; (4) need for stability and continuity is paramount and increased forced visitation or custody would jeopardize recovery; (5) Mother did not discuss extended family at trial and schedule would not prevent Daughter from seeing Mother’s extended family; (6) Daughter and Son bond is extremely close; (7) Daughter had clear preference to stay with Father; (8) Father should not disparage Mother in front of Daughter and should not obstruct a relationship with Mother; (9) Father more likely to maintain the right parental relationship necessary for Daughter’s emotional needs; (10) Father more likely to attend to daily physical and emotional, developmental, educational and special needs, given Daughter’s trauma and emotional recovery; (11) distance between residences is roughly 45 minutes; (12) both parents able - 15 - J-A19023-15 to make appropriate child care arrangements; and (13) no concerns regarding drugs and alcohol). After a thorough review of the record, we find the trial court’s conclusions are reasonable and it did not err in granting primary custody of Daughter to Father. B. Custody of Son Mother next challenges the trial court’s order granting Father primary physical custody and sole legal custody as to educational decisions of Son. Mother claims the “only reason” the trial court removed Son from Mother’s primary care and his school was his “grades” and there was no evidence of Son’s grades admitted at the hearing. Appellant’s Brief at 30- 32. This argument lacks merit. The trial court noted that “[i]t is not the case that Son was removed from his Mother[] because he did not do his homework. The issue is far more complex than the simplicity with which Mother argues it.” Opinion, 2/3/2015, at 10. The trial court found Son struggled for years, was held back in the sixth grade, nearly had to repeat it again, and almost failed seventh grade. Id. at 11. At the time of trial, Son was failing a third of his classes. Id. The trial court then noted “[m]ore worrisome for the [c]ourt than, say, a score on a project, is that Son stated that he is being called stupid by his classmates,” and he was “very compelling” when he spoke on the topic. Id. at 11. The trial court found Mother’s testimony “problematic,” noting Mother gave “an unreasonable amount of weight to Son’s social life.” - 16 - J-A19023-15 Id. Mother testified to Son’s popularity at school, “referred to him as the ring-leader of the neighborhood,” and said his friends were “free to come over his house on the weekends.” Id. The court noted “given[] Son’s fairly significant difficultly in school, [it had] to question Mother’s parenting priorities.” Id. The trial court then noted that there was a “strong indication that Son is not getting the parenting support he needs at home with Mother.” Id. at 12. Son demonstrated the ability to succeed and was sensitive to his poor school performance. Id. The trial court was not convinced Mother was attentive to his needs and found Father was better suited to provide educational care. Id. Mother next argues that Son wanted to stay with Mother and the trial court erred in not following Son’s wishes. Appellant’s Brief at 34-35. Mother also argues the court erred because Son had a strained relationship with Stepmother, but an excellent relationship with Stepfather. Appellant’s Brief at 35. Mother also contends the trial court erred by granting Father primary custody of Son due to the need for stability and continuity in Son’s life. Appellant’s Brief at 38-42. Mother claims the trial court failed to safeguard Son’s “basic physical and psychological needs” in regard to school choice. Id. at 39. This claim also lacks merit. The trial court found Son’s preferences were not strong and unequivocal. Opinion, 2/3/2015, at 12. Son wanted to live with both parents, does not like it when Father and Stepmother make disparaging comments about Mother and Stepfather, and is particularly sensitive to - 17 - J-A19023-15 name-calling when sister bickers with Father and Stepmother. Id. at 13. However, Stepmother was the biggest disciplinarian, which impacts a middle-schooler’s preference. Id. Further, the trial court noted that Mother has “at times, set Son up for failure,” including not informing him about a scheduled vacation with Father and forcing him to choose whether to stay with Mother or go with Father on Father’s scheduled weekend. Id. at 13-14. The trial court noted Son’s excellent relationship with Stepfather was just one of many factors. Id. at 15. The trial court also discussed stability and continuity. It noted Son had a good group of friends, and the custody change would affect the relationships. Opinion, 2/3/2015, at 16. However, Son had done poorly in school and the trial court found the change in schools was in Son’s best interest. Id. The court noted there was a chance Son would be unable to participate in his extracurricular activities next year if his grades did not improve and the extracurricular activities were a big reason he lacked the time and energy to concentrate on his schoolwork. Id. at 16-17. The court noted it would be difficult for Son to spend less time with Mother and Stepfather, but found the parties’ locations, which were 45 minutes from each other, did not permit another arrangement. Id. at 17. Further, the trial court thoroughly discussed the custody factors following the trial. N.T., 11/20/2014, at 150-164 (finding: (1) neither party encourages contact with the other; (2) one abuse issue with Stepfather, but Son did not take seriously and trial court did not see it as an issue; (3) Son - 18 - J-A19023-15 has a home with both parties, but has not been doing well in school with Mother; (4) stability and continuity favor Mother; (5) Son’s preference is to reside with Mother; (6) Mother more likely to maintain loving, stable, consistent and nurturing relationship; (7) Father more likely to attend to physical, emotional, developmental, educational and special needs of Son; and (8) because of lack of proximity of residences, Son will reside with Father during school year). The trial court also made findings as to the factors in its 1925(a) opinion. See Trial Court Opinion, 2/3/2015, at 9-18 (finding: (1) ample evidence Mother tried to turn Son against Father by withholding Son and preventing regular contact; (2) both parties offer safe environments for Son; (3) both parents perform parental duties for Son and can provide for his emotional needs; (4) change “comes at a cost to the world with which Son is accustomed, but stability and continuity for the sake of stability and continuity does not outweigh the other relevant factors”; (5) extended family not discussed at trial and custody schedule would not prevent Son from seeing Mother’s extended family; (6) bond between Daughter and Son is extremely close and Son will be able to spend more time with his half-brother; (7) Son’s preference was not strong and unequivocal; (8) evidence Mother tried to turn Son against Father; (9) both family can provide for Son’s emotional needs; (10) Father is best suited to attend to Son’s developmental, educational, and special needs; (11) distance between parties prevents an alternative arrangement; (12) both parents are able to make appropriate child care arrangements; (13) Son’s - 19 - J-A19023-15 best chance for having healthy relationship with both parents is if Father has primary custody; (14) there are no allegations of drug or alcohol abuse; and (15) Both offer safe environments for Son). The trial court’s conclusions are reasonable and it did not err in awarding primary physical custody of Son to Father and sole legal custody regarding school decisions of Son to Father. Order affirmed.6 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/5/2015 ____________________________________________ 6 Appellant’s “Application for Relief Pursuant to Pa.R.A.P. 123 Ancillary to Pending Appeal and Petition for Review Pursuant to Pa.R.A.P. 1501(A)(3) – Writ of Mandamus and Prohibition” is denied. - 20 - 

44 F.3d 1006 U.S.v.Blackburn (Charles Everett) NO. 94-40511 United States Court of Appeals,Fifth Circuit. Dec 30, 1994 E.D.Tex., 42 F.3d 640 1 DENIALS OF REHEARING EN BANC.

171 So.2d 109 (1965) Otilla SHIVERS v. Barto SHIVERS. 3 Div. 135. Supreme Court of Alabama. January 21, 1965. Fred D. Gray, Montgomery, for appellant. Heirston L. Foster, and John T. Batten, Montgomery, for appellee. SIMPSON, Justice. Appeal from a decree of the Circuit Court of Montgomery County, In Equity, Domestic Relations Division, finding that appellant (wife) was not entitled to relief on her cross-bill for divorce a mensa et thoro and awarding her monthly payments of ten dollars and granting appellee a divorce a vinculo matrimonii. The evidence tended to show that the parties were married to each other in 1915 and lived together as man and wife until the year 1936, at which time they separated. Appellant's proof tended to show that the separation occurred due to no fault of hers. Appellee's proof tended to show that the separation occurred due to appellant's fighting him, hitting him with a hammer, fists, and threatening him with a pistol. Appellant and appellee have been separated for some twenty-eight years and have not lived together since the separation. Appellee is sixty-eight years old, is a veteran of World War I, and is now retired from the Louisville and Nashville Railroad and drawing a retirement check. He has to make frequent trips to a physician and his medical bills run from $9.00 to $25.50 every two weeks. Appellant lives in Madras, Georgia, where she has resided for three years before the suit was filed. She has been living in the State of Georgia for the past thirteen years. Appellant first argues that the lower court erred in refusing relief on the cross bill based upon abandonment for two years without support from the husband, under § 22, Tit. 34, Code of Ala. 1940, as amended, which provides in part as follows: "* * * In favor of the wife when the wife has lived, or shall have *110 lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the bill; and she has bona fide resided in this state during said period." The evidence is uncontradicted that appellant has not lived or resided in Alabama for the period of two years next preceding the filing of the cross bill, but to the contrary that she has resided in the State of Georgia for the past thirteen years. She could not therefore invoke the provisions of § 22, Tit. 34, supra. The case below was taken under consideration by the lower court on the oral testimony of the witnesses and it has long been the rule in this Court that the lower court's finding of fact is presumptively correct and will not be disturbed on appeal unless plainly or palpably wrong, or against the great weight of the evidence. Barry v. Thomas, 273 Ala. 527, 142 So.2d 918; King v. King, 269 Ala. 468, 114 So.2d 145; Wilfe v. Waller, 263 Ala. 110, 81 So.2d 614; Puckett v. Puckett, 240 Ala. 607, 200 So. 420. We are not prepared to conclude that the lower court plainly or palpably erred in its award to appellant or that its decree was against the great weight of the evidence, or that any error was committed in granting appellee a divorce a vinculo matrimonii. It would appear to the impartial mind, from the attendant circumstances adduced by appellee's attorneys, that appellant's motivations in contesting appellee's suit for divorce was probably that she desired to have appellee's veteran's benefits and his railroad retirement benefits after his death. Under these and other facts adduced we fail to see any error committed by the lower court. Affirmed. LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.

176 Ariz. 118 (1993) 859 P.2d 741 STATE of Arizona, Appellee, v. John Thomas ROMANOSKY, Appellant. No. CR-90-0105-AP. Supreme Court of Arizona, En Banc. October 5, 1993. Grant Woods, Atty. Gen., Phoenix, by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, for appellee. Neal W. Bassett, Phoenix, for appellant. OPINION MOELLER, Vice Chief Justice. STATEMENT OF THE CASE At trial, the state's theory was that defendant and two accomplices robbed the victim and his wife in their Phoenix motel room. During the course of the robbery, the victim was shot and killed. At his first trial, defendant was convicted of first degree murder, armed robbery, and aggravated *119 assault. Because of evidentiary errors, we reversed and remanded for a new trial. State v. Romanosky, 162 Ariz. 217, 782 P.2d 693 (1989). The evidence is summarized in the earlier opinion and need not be restated here. At his second trial, the trial court dismissed the aggravated assault count at the close of the state's case. Defendant did not testify at trial, and his defense was that the state failed to prove its case beyond a reasonable doubt. The jury convicted defendant of armed robbery and felony murder. He received the death penalty for the murder and 28 years for the armed robbery. Appeal to this court is automatic. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3) and A.R.S. §§ 13-4031, 13-4033, and 13-4035. On appeal, defendant raises numerous issues, many of which relate to the jury selection phase or the penalty phase. In this opinion, we do not discuss those issues unlikely to arise at a new trial before a different judge, or issues that are moot until and unless defendant is again convicted and sentenced to death. See Romanosky, 162 Ariz. at 226-27, 782 P.2d at 702-03. Because the trial judge did not instruct the jury on the doctrine of reasonable doubt at the end of the case, we reverse. We discuss only the facts relevant to that issue. ISSUE Whether a new trial is required because the trial court did not instruct the jury on the doctrine of reasonable doubt at the end of the case. DISCUSSION I. Requirement of Reasonable Doubt Instruction at the End of the Case On the first day of trial, the trial judge preliminarily instructed the jury that in order to convict defendant, the state had to prove defendant guilty of every element of the crimes charged beyond a reasonable doubt. At that same time, the then three-count indictment was read to the jury, but the crimes charged were not defined as they were at the end of the trial. Four days and 26 witnesses later, the lawyers made closing arguments. Both mentioned the state's burden of proving guilt beyond a reasonable doubt. The trial judge then gave additional instructions to the jury, but did not repeat those previously given. There was no reinstruction on the reasonable doubt standard. The judge did provide the jury with a written copy of the instructions that had been given the first day of trial, as well as a copy of those given at the end. Defendant argues that the trial judge's practice of refusing to instruct the jury on the reasonable doubt standard at the close of the evidence is reversible error. It is well-settled that failure or refusal to instruct the jury at the close of the evidence on the state's burden of proof after a request by the defendant is error. The appellate courts of this state have so held in five cases: State v. Johnson, 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992); State v. Jackson (Robert), 144 Ariz. 53, 54, 695 P.2d 742, 743 (1985); State v. Kinkade, 140 Ariz. 91, 94-95, 680 P.2d 801, 804-05 (1984); State v. Jackson (Richard), 139 Ariz. 213, 217, 677 P.2d 1321, 1325 (App. 1983); State v. Marquez, 135 Ariz. 316, 321, 660 P.2d 1243, 1248 (App. 1983). Each of these five published opinions involved the same trial judge that presided over defendant's trial here. Four of the five opinions were issued before the trial in this case. The state necessarily acknowledges the clear rule requiring instruction on reasonable doubt at the close of the case. The state argues, however, that the jury in this case was in fact instructed on the reasonable doubt standard at the close of the evidence, and that only a definition of reasonable doubt, which is not required, is lacking. See State v. Bracy, 145 Ariz. 520, 535, 703 P.2d 464, 479 (1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932 (1986). In support of this claim, the state relies on the following instruction given at the end of the case: "You may not find the defendant guilty of first degree murder unless you find beyond a reasonable doubt that at the time of the *120 killing, the defendant was engaged in the commission of a robbery as defined in these instructions." This instruction was given immediately following the felony murder instruction. This, however, falls short because the jury was told only that the reasonable doubt standard applied to robbery. The jury was not instructed that the standard applied to every element of robbery or of felony murder. The jury was not told that the state must prove beyond a reasonable doubt that the killing was done in the course of and in furtherance of or in flight from the robbery and that defendant or another person involved in the robbery caused the death. See A.R.S. § 13-1105(A)(2). The state correctly asserts that it is not necessary for the trial court to define reasonable doubt for the jury, Bracy, 145 Ariz. at 535, 703 P.2d at 479. However, under our cases, the jury must be instructed concerning the application of the doctrine to each element at the close of the case. See, e.g., State v. Pederson, 102 Ariz. 60, 68, 424 P.2d 810, 818 (1967). II. Preservation of the Issue The state also contends that defendant failed to preserve the reasonable doubt issue for appeal and, therefore, our review is limited to one for fundamental error. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991); Rule 21.3(c), Ariz. R.Crim.P. We disagree. The record shows defendant adequately preserved the issue in the trial court. During defense counsel's opening statement, he began discussing the standard of reasonable doubt. The trial judge interrupted, directed counsel to go on to "what the evidence will show," and stated that "at the appropriate time I will give the instructions of law." On the next-to-last day of trial, the trial judge informed the attorneys that she would not reread the instructions given at the beginning of the trial. The instructions separately requested by defendant included a reasonable doubt instruction. On the last trial day, the trial court asked if there were any objections to the instructions already given or those about to be read to the jury. Defense counsel stated: "Your Honor, your own proposed instructions are acceptable to the defense. I would again reurge my suggested or requested instructions...." In considering the adequacy of the record, we note also that a request to give a reasonable doubt instruction (which is commonly given without request in criminal cases) is somewhat different than a request to give an evidence-based instruction, where the party may need to demonstrate to the trial court an evidentiary basis for the instruction. The reasonable doubt instruction is applicable in all criminal cases regardless of the evidence. The basis for requesting it, in those rare cases where the trial court itself does not intend to give it, is self-evident. The record made by defense counsel here was adequate to put the trial judge on notice of her error in not reinstructing the jury on reasonable doubt. Given the unique history of this subject, any further request was both unnecessary and futile. The trial court's failure to give the requested instruction here was error, and the error was not waived. III. Harmless Error Analysis Our foregoing conclusions do not end our inquiry. We must next determine whether the error was harmless.[1] To constitute harmless error, we must be able to conclude beyond a reasonable doubt that the failure to reinstruct at the end of the trial did not influence the jury's verdict. See Jackson, 144 Ariz. at 55, 695 P.2d at *121 744. Here, we are unable to reach such a conclusion. As noted in Johnson, 173 Ariz. at 276, 842 P.2d at 1289, the failure to give a reasonable doubt instruction at the end of the case "is not necessarily obviated by furnishing written copies of instructions to jurors, or by the fact that lawyers have argued the instructions in summation." This trial involved over 25 witnesses. The instructions received by the jury on the first day of trial included only a statement of the basic principle of reasonable doubt without any reference to defined elements of defined crimes. The crimes themselves were undefined until the end of the case, and the jury was not told at the end of the case that the reasonable doubt standard applied to each element of the defined crimes. From our reading of the record, defendant's only defense was the doctrine of reasonable doubt. The attenuated instruction given at the start of the case was insufficient, given the paramount importance of the doctrine of reasonable doubt. We cannot say the error was harmless in this capital case. DISPOSITION A new trial is required. The convictions are reversed, and this case is remanded to the trial court for a new trial. In accordance with this court's order of January 26, 1993, the case will be reassigned to a different trial judge upon remand. FELDMAN, C.J., and CORCORAN and ZLAKET, JJ., concur. MARTONE, Justice, dissenting. I dissent for the reasons set out in detail in my dissenting opinion in State v. Johnson, 173 Ariz. 274, 277, 842 P.2d 1287, 1290 (1992). I would not reverse this case on the reasonable doubt instruction issue.[1] Nor do I believe the defendant preserved the issue. The general request to give this instruction was not enough. Rule 21.3(c), Ariz.R.Crim.P., states that a party must not only object to the failure to give an instruction, but must state "distinctly the matter to which he objects and grounds of his objection." E.g., State v. Schurz, 176 Ariz. 46, 154, 859 P.2d 156, 164 (1993) ("A general objection to the failure to give an instruction does not preserve the point."). Thus, this is a fundamental error case, and for the reasons stated in Johnson, there is no fundamental error here. Even if the error were preserved, I believe it to be harmless, again, for the reasons stated in my dissent in Johnson. NOTES [1] In Sullivan v. Louisiana, ___ U.S. ___, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), the Supreme Court held that a constitutionally deficient reasonable doubt instruction is a "structural error" that is not subject to a harmless error analysis. In Sullivan, the instruction given defined reasonable doubt in terms that required a higher degree of doubt than necessary. Here, however, we deal primarily with the timing of the instruction, not its validity. We have held in earlier cases that this issue is subject to a harmless error analysis. See Johnson, 173 Ariz. at 276, 842 P.2d at 1289; Jackson, 144 Ariz. at 55, 695 P.2d at 744. Although Sullivan is distinguishable, it illustrates the importance of proper instructions on reasonable doubt. [1] The issue of the exclusion of the defense investigator from the courtroom, in violation of Rule 9.3(d), Ariz.R.Crim.P., is quite another matter which, inexplicably, the court fails to reach.

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-30113 Plaintiff-Appellee, D.C. No. 2:04-cr-06045-EFS-1 v. JARED RYAN MARCUM, MEMORANDUM* Defendant-Appellant. UNITED STATES OF AMERICA, No. 18-30116 Plaintiff-Appellee, D.C. No. 4:15-cr-06031-EFS-1 v. JARED RYAN MARCUM, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding Argued and Submitted November 5, 2019 Seattle, Washington * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,** District Judge. Defendant-Appellant Jared Marcum appeals the district court’s rulings denying his motion to suppress evidence seized from the car in which he was a passenger; denying his motion to dismiss his indictment based on alleged prosecutorial misconduct during the grand jury proceedings; denying his motion in limine to prevent the admission of evidence from a prior narcotics and firearm arrest; and granting the government’s motion to shackle him during the court proceedings. Marcum also raises on appeal whether his 24-month sentence for violating the conditions of his supervised release was substantively reasonable and whether his conviction for being a felon in possession of a firearm is constitutional under Rehaif v. United States, 139 S. Ct. 2191 (2019). We discuss Marcum’s primary contentions in turn. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm. 1. Marcum challenges the district court’s denial of his motion to suppress the drug and firearm evidence that police seized from Jazmin Torres’s car during an inventory search. We review a district court’s denial of a motion to ** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. 2 suppress de novo, but we review the underlying factual findings for clear error. United States v. Perea-Rey, 680 F.3d 1179, 1183 (9th Cir. 2012). Marcum does not have standing to challenge the search because, as a passenger in Torres’s car, he had neither a possessory interest nor a reasonable expectation of privacy in the car. See United States v. Pulliam, 405 F.3d 782, 786 (9th Cir. 2005). Marcum does, however, have standing to challenge the initial stop. See United States v. Twilley, 222 F.3d 1092, 1095 (9th Cir. 2000). To make an investigatory traffic stop, the police must have a “reasonable suspicion” that an occupant of the car is engaged in criminal activity. United States v. Lopez-Soto, 205 F.3d 1101, 1104–05 (9th Cir. 2000). Here, the officers had such a reasonable suspicion because they knew Torres, the car’s registered owner, had an outstanding arrest warrant. It is reasonable to infer that a car’s registered owner will be driving or riding in the car, absent evidence showing otherwise. Here, the officers did not have any evidence that suggested Torres was not in the car, and they could not see the driver clearly through the car’s tinted windows. In these circumstances, the officers had a reasonable suspicion to justify the stop, and the stop did not violate Marcum’s Fourth Amendment rights. We affirm the district court’s denial of Marcum’s motion to suppress. 2. Marcum challenges the district court’s denial of his motion to dismiss his grand jury indictment. We review constitutional challenges to a district court’s 3 denial of a motion to dismiss de novo, and we review challenges to indictments based on a court’s supervisory powers for abuse of discretion. United States v. Fernandez, 388 F.3d 1199, 1238 (9th Cir. 2004). Marcum did not show outrageous government conduct that violated fundamental fairness and shocked the general conscience, which was necessary to support his due process claim. Id. at 1238–39. He similarly did not show flagrant prosecutorial misconduct or even a possibility that the discrepancy in the listed cross streets of the stop and search had a significant influence on the grand jury’s decision to indict him. See id. at 1239. We affirm the district court’s denial of Marcum’s motion to dismiss his indictment. 3. Marcum challenges the district court’s denial in part of his motion in limine to prevent the admission of evidence of his prior narcotics and firearm arrest. We review a district court’s evidentiary ruling for abuse of discretion. United States v. Fries, 781 F.3d 1137, 1146 (9th Cir. 2015). The district court did not abuse its discretion by admitting in part the evidence of Marcum’s arrest as evidence of his motive and intent under Federal Rule of Evidence 404(b). The district court found that the prior arrest was close in time and factually similar to the charged offense, and that it tended to prove a material point. See United States v. Verduzco, 373 F.3d 1022, 1027 (9th Cir. 2004). The district court properly weighed the probative value of the evidence against its prejudicial impact under Federal Rule of Evidence 403 and found that the probative value was not 4 substantially outweighed by any prejudicial impact. See United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002). Those rulings accorded with settled law. We affirm the district court’s denial in part of Marcum’s motion in limine. 4. Marcum challenges the district court’s grant of the government’s motion to shackle him during the court proceedings. We review a district court’s decision to shackle a defendant for abuse of discretion. United States v. Fernandez, 388 F.3d 1199, 1245 (9th Cir. 2004). The district court appropriately relied on the U.S. Marshals Service’s recommendation that Marcum’s out-of-court behavior and heightened danger and flight risk created an “essential state interest” in shackling Marcum with a single ankle restraint. See Deck v. Missouri, 544 U.S. 622, 628–29 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 569 (1986)). Importantly, the district court took special precautions to ensure that the jury would neither see nor hear the ankle restraint. In these circumstances, we conclude that the shackling did not prejudice Marcum’s right to a fair trial. Williams v. Woodford, 384 F.3d 567, 592–93 (9th Cir. 2004). We affirm the district court’s grant of the government’s motion to shackle Marcum during the court proceedings. 5. Next, Marcum claims on appeal that his 24-month sentence for violating the conditions of his prior supervised release is substantively unreasonable. We review a district court’s sentence under a reasonableness standard. United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir. 2006). 5  The district court sentenced Marcum to 24 months imprisonment for violating the terms of his supervised release. This sentence is below the Sentencing Commission range and under the statutory cap, and the district court chose to make the sentence concurrent with Marcum’s 300-month sentence for the indicted offenses, despite the probation officer’s recommendation that the sentences run consecutively. The district court had more than a sound basis to sentence Marcum for violating the terms of his prior supervised release, especially when the supervised release was related to a conviction for an offense similar to that for which he was convicted in this case. We see no basis on which to consider this 24-month sentence to be substantively unreasonable. See United States v. Gonzalez, 906 F.3d 784, 800 (9th Cir. 2018) (“[A] below-Guidelines sentence . . . will rarely be substantively unreasonable.”). We affirm Marcum’s sentence for violating his supervised release against this challenge. 6. Marcum also claims on appeal that his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) is unconstitutional because of the intervening Supreme Court decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). We review this claim for plain error. United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019). The district court clearly erred under Rehaif by not instructing the jury that it had to find that the government proved beyond a reasonable doubt that Marcum 6 knew he was a felon at the time of the search. Benamor, 937 F.3d at 1188. Marcum, however, cannot show that, “but for the error, the outcome of the proceeding would have been different.” Id. at 1189. At the time of the search, Marcum was subject to the conditions of his supervised release from past felony convictions, including a conviction for being a felon in possession of a firearm. There is no reasonable doubt that Marcum knew he was a felon at the time of the search. Id. Any failure to instruct the jury did not affect Marcum’s substantial rights or “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160 (1936); see also United States v. Olano, 507 U.S. 725, 732 (1993). We affirm Marcum’s conviction, rejecting his claim that his felon-in-possession conviction is unconstitutional. AFFIRMED. 7 

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Originally Filed: December 19, 2019 Refiled in Redacted Form: January 23, 2020 * * * * * * * * * * * * * * * R.S., * PUBLISHED * Petitioner, * No. 15-1207V * v. * Special Master Nora Beth Dorsey * SECRETARY OF HEALTH * Entitlement Decision; Influenza (“flu”) AND HUMAN SERVICES, * Vaccine; Guillain-Barré Syndrome (“GBS”), * Polyneuropathy, Organomegaly, * Endocrinopathy, Monoclonal Gammopathy, Respondent. * and Skin Changes (“POEMS”) Syndrome; * Onset. * * * * * * * * * * * * * * * Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner. Linda S. Renzi, U.S. Department of Justice, Washington, DC, for respondent. DECISION1 I. INTRODUCTION On October 15, 2015, R.S. (“petitioner”) filed a petition under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”),2 42 U.S.C. § 300aa- 10 et seq. (2012), alleging that as a result of receiving an influenza (“flu”) vaccine on October 1, 2013, she suffered from Guillain-Barré syndrome (“GBS”) and polyneuropathy, organomegaly, endocrinopathy, monoclonal gammopathy, and skin changes (“POEMS”) syndrome. Petition at 1 When this decision was originally filed the undersigned advised her intent to post it on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner filed a timely motion to redact certain information. This decision is being reissued with initials, R.S. or S., in place of petitioner’s name. Except for those changes and this footnote, no other substantive changes have been made. This decision will be posted on the court’s website with no further opportunity to move for redaction. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. 1 1-2. Respondent argued against compensation, stating that “this case is not appropriate for compensation under the terms of the Vaccine Act.” Respondent’s Report (“Resp. Rept.”) at 2 (ECF No. 17). After carefully analyzing and weighing the evidence presented in this case in accordance with the applicable legal standards, the undersigned finds that petitioner has failed to provide preponderant evidence that the flu vaccine she received on October 1, 2013, caused her injuries. Therefore, entitlement must be denied. II. PROCEDURAL HISTORY The petition was filed in this matter on October 15, 2015. Shortly thereafter, on October 26, 2015, petitioner filed seven medical record exhibits. Petitioner’s Exhibits (“Pet. Exs.”) 1-7 (ECF No. 7). Petitioner filed additional medical records, her supporting affidavit, and a Statement of Completion on October 27, 2015. Pet. Exs. 8-23 (ECF Nos. 9-10); Pet. Aff. dated Oct. 27, 2015 (ECF No. 11). On February 22, 2016, respondent filed his Rule 4(c) Report, recommending against compensation. Resp. Rept. at 2. A status conference was held in April 2016 to determine next steps in the case, and the parties agreed that petitioner should file an expert report. Order dated Apr. 27, 2016 (ECF No. 18). Petitioner filed two additional sets of medical records on March 26, 2016 and June 6, 2016, respectively. Pet. Exs. 24-28 (ECF Nos. 21, 25). On August 5, 2016, petitioner filed an expert report by Dr. Norman Latov. Pet. Ex. 29 (ECF No. 26). Respondent thereafter filed a responsive expert report by Dr. Dennis Bourdette on January 6, 2017. Resp. Ex. A (ECF No. 33). On January 26, 2017, the undersigned ordered petitioner to file a supplemental expert report addressing the opinions of Dr. Bourdette. Order dated Jan. 26, 2017 (ECF No. 34). Petitioner submitted a supplemental report from Dr. Latov on March 23, 2017. Pet. Ex. 31 (ECF No. 35). On May 2, 2017, the undersigned held a Rule 5 status conference with the parties. Order dated May 2, 2017 (ECF No. 39). Given the complexities of the case, the undersigned did not offer her preliminary findings. Rather, both parties agreed that expert reports addressing the hematologic aspect of petitioner’s claim would be helpful. Respondent filed an expert report by Dr. Brea Lipe on June 16, 2017. Resp. Ex. C (ECF No. 40). On December 4, 2017, petitioner submitted a responsive report from Dr. Latov. Pet. Ex. 38 (ECF No. 54). After a number of months, petitioner filed an expert report from Dr. Samir Parekh on October 11, 2018. Pet. Ex. 57 (ECF No. 75). On June 20, 2018, the undersigned set this matter for hearing to take place on January 29- 30, 2019. Order dated June 20, 2018 (ECF No. 72). The parties completed their respective pre- hearing filings by early January 2019, and the hearing took place as scheduled. The parties filed post-hearing briefs on April 26, 2019 and July 24, 2019, respectively. This matter is now ripe for adjudication. 2 III. MEDICAL TERMINOLOGY As the literature filed in this case establishes, GBS is a peripheral neuropathy involving rapidly-progressive and ascending motor paralysis caused by demyelination of the peripheral nerves. See Pet. Ex. 29, Tab C at S21-S22.3 The primary clinical features of the disease are generalized muscle weakness combined with sensory symptoms. Id. at S21. Symptoms indicative of GBS typically begin abruptly with paresthesia in the feet, progressing to paralysis of the lower limbs, and ascending to the trunk, limbs, and face. Id. at S21-S22. Weakness of the facial muscles and respiratory complaints are also common features. Id. Patients suffering from GBS typically experience a monophasic course and reach nadir between two and four weeks following onset. Id. at S21. Chronic inflammatory demyelinating polyneuropathy (“CIDP”) is a chronic form of GBS, which progresses slowly over time, but manifests similar symptoms. Resp. Ex. E, Tab 1 at 477.4 Patients with symptoms consistent with GBS, but lasting longer than two months, are typically considered to be suffering from CIDP. POEMS syndrome, by contrast, is a paraneoplastic syndrome due to an underlying plasma cell disorder. Pet. Ex. 29, Tab F at 214.5 Typical features of the syndrome include: demyelinating polyradiculoneuropathy, organomegaly, endocrinopathy, monoclonal plasma cell disorder, and skin changes. Id. The diagnostic criteria for the condition requires a patient to satisfy two mandatory criteria: polyneuropathy and monoclonal gammopathy, along with one of the following: elevated serum vascular endothelial growth factor (“VEGF”) levels, sclerotic bone lesions, or Castleman’s disease. Id. Additionally, patients suffering from POEMS may have various minor criteria, such as papilledema and thrombocytosis. Id. The progression of symptoms is gradual, with the median time from onset to diagnosis being thirteen to eighteen months. Resp. Ex. C, Tab 4 at 304.6 Misdiagnosis of the illness is common due to its rarity and multi-system manifestations. Id. The most common misdiagnoses, based on the initial symptoms, include CIDP, diabetes, and nephritis. Id. Despite their differences, distinguishing between POEMS and GBS/CIDP is difficult during the early phases given the similarities in the initial presenting neuropathy. The literature filed in this matter suggests that over half of POEMS patients presenting with a related polyneuropathy are diagnosed initially with CIDP. Resp. Ex. E, Tab 1 at 477. Clinically, POEMS patients typically experience distal muscle weakness in the lower extremities only, while patients 3 Arthur Asbury & David Cornblath, Assessment of Current Diagnostic Criteria for Guillain- Barré Syndrome, 27 Ann. Neurol. S21 (1990). 4 Saiko Nasu et al., Different Neurological and Psychological Profiles in POEMS Syndrome and Chronic Inflammatory Demyelinating Polyneuropathy, 83 J. Neurol. Neurosurg. Psychiatry 476 (2012). 5 Angela Dispenzieri, CME Information: POEMS Syndrome: 2014 Update on Diagnosis, Risk- Stratification, and Management, 89 Am. J. Hematol. 213 (2014). 6 Jian Li & Dao-Bin Zhou, New Advances in the Diagnosis and Treatment of POEMS Syndrome, 161 Brit. J. Hematol. 303 (2013). 3 with GBS/CIDP experience weakness in both the upper and lower limbs. Id. In addition, patients with POEMS usually complain of neuropathic pain in the lower extremities, whereas patients with symptoms akin to GBS/CIDP rarely complain of pain. Id. Patients whose symptoms are initially believed to be compatible with GBS/CIDP may later be diagnosed with POEMS syndrome based on the subsequent course of illness as additional symptoms manifest. Although intravenous immunoglobulin (“IVIG”) treatments are utilized successfully in resolving both GBS and CIDP, single agent IVIG therapy is not considered to be the most effective treatment for POEMS syndrome. Pet. Ex. 29, Tab F at 220. Case reports, however, do indicate that IVIG treatment can result in a reduction of serum VEGF levels and clinical improvement in some patients. Id. Indeed, even after initial treatment with IVIG therapy, POEMS syndrome will become progressively worse until the proper treatment is administered. Radiation, melphalan-dexamethasone, and corticosteroids typically result in the most noted improvement in the majority of POEMS syndrome cases. Id. at 219-20. IV. FACTUAL SUMMARY A. Medical History Prior to Vaccination R.S. was born on August 23, 1972. Pet. Ex. 3 at 35. Prior to her receipt of the vaccine at issue in this matter, R.S. had no history of neurological abnormalities. Her prior medical history is significant for cherry angiomas, basal cell neoplasms, and depression. Pet. Ex. 2 at 1; Pet. Ex. 3 at 35-36. B. Receipt of Vaccination and Subsequent Clinical Course i. Medical Treatment in 2013 R.S. received the flu vaccine at issue herein on October 1, 2013. Pet. Ex. 1 at 1. No adverse reaction was noted at the time of vaccine administration. Id. On November 6, 2013, roughly four weeks following her vaccination, R.S. presented to Dr. Gopalan Umashanker, a neurologist employed with Cottage Hospital in Woodsville, New Hampshire. Pet. Ex. 6 at 1-2. R.S. complained of weakness and numbness in her legs. Id. at 1. She reported to Dr. Umashanker that three days following her receipt of the flu vaccine, she experienced severe diarrhea and stomach pain that lasted a couple of days. Id. Around October 10, 2013, R.S. reported that she developed numbness in the tips of her toes, which eventually ascended to the pads of her feet and toes. Id. At the time of her visit with Dr. Umashanker, petitioner’s symptoms had progressed over the past week to include pain in the calves and hips, fatigue, palpitations, numbness in the fingers, unsteady gait, and drooling. Pet. Ex. 6 at 1. Upon exam, petitioner’s dorsiflexors were noted to be weak, and reflexes in her ankles, biceps, and knees were diminished. Id. at 2. A mid- shin sensory deficit was also noted. Id. Dr. Umashanker assessed R.S. with “probabl[e]” GBS due to the markedly diminished reflexes, sensory deficits, and facial involvement, though it was noted that additional testing would be needed to confirm the diagnosis. Id. R.S. was 4 admitted to Dartmouth Hitchcock Medical Center (“Dartmouth”) that same day for further testing. Id. Upon admission to Dartmouth, R.S. was seen by a second neurologist, Dr. Elijah Stommel. Pet. Ex. 7 at 1-6. Consistent with the history provided to Dr. Umashanker, R.S. reported that she developed a “GI bug” three days following her receipt of the flu vaccine on October 1, 2013. Id. at 1. By mid-October of that year, she developed toe and finger numbness, calf pain, weakness in the lower extremities, low back pain, palpitations, drooling, and eye strain. Id. at 1-2. Dr. Stommel reviewed R.S.’s history and opined that her course was “concerning for acute inflammatory demyelinating polyneuropathy” or AIDP. Id. at 6. Dr. Stommel further noted the viral illness reported prior to the onset of symptoms which would be consistent with such a diagnosis. Id. A lumbar puncture conducted during R.S.’s hospital stay showed a slightly elevated protein of 57 (range: 15-45) with normal glucose. Id. at 44. An EMG was consistent with a generalized peripheral neuropathy with demyelinating features. Id. at 56. R.S.’s lab tests also indicated that she had thrombocytosis, with an elevated platelet count of 473 x10(3) /mcL. Id. at 4. Her IgA level was within normal limits at 174 (range: 70- 400mg/dL). Id. at 5. R.S. was discharged on November 11, 2013, with diagnoses of GBS and AIDP. Id. at 54. Discharge notes indicated that she received a dose of Solu-medrol (200mg) and a five-day course of IVIG treatment with noted improvement in extremity strength. Id. at 54- 58. R.S. was hospitalized a second time at Littleton Regional Healthcare (“Littleton Regional”) in Littleton, New Hampshire, from November 26-29, 2013, due to difficulties with her speech and gait. Pet. Ex. 5 at 658-59. Upon admission, R.S. reported that she did well over a two-week period, but started to experience increased tingling in the legs and fingers, difficulty walking, chest pain, and voice issues, roughly thirty-six hours prior to presentation. Id. at 658. It was noted that she received a flu vaccine in early October. Id. at 658, 659. Emergency room treaters assessed her with a GBS flare and recommended further treatment with IVIG. Id. at 659. Her thrombocytosis persisted, with labs indicating her platelets remained elevated at 707 K/uL. Id. at 628. On November 27, 2013, Dr. Stephen Goldberg conducted a serum protein electrophoresis (“SPEP”) test without immunofixation (“IFE”) to test for monoclonal gammopathy. Pet. Ex. 7 at 600. R.S. tested negative for the monoclonal protein, but two beta region peaks were recorded. Id. The assessment remained GBS with treatment related fluctuation. Pet. Ex. 5 at 681. Discharge records indicated that R.S.’s paresthesia and gait improved following IVIG treatment. Id. Her deep tendon reflexes remained absent and she continued to experience residual tingling in the toes. Id. R.S.’s health continued to worsen. Less than two weeks later, she was readmitted to Littleton Regional on December 10, 2013 for persistent lower extremity weakness, sensory loss, and paralysis in the lower extremities. Pet. Ex. 5 at 544; Pet. Ex. 7 at 324-26. Upon admission, petitioner complained of worsening paresthesia, continued gait abnormalities, and leg pain. Pet. Ex. 5 at 485-87. R.S. received two additional infusions of IVIG at Littleton Regional, with no improvement in strength. Pet. Ex. 7 at 314-16. She was transferred back to Dartmouth on December 12, 2013 for further evaluation and treatment. Id. She finished her five-day course of IVIG at Dartmouth with a steady improvement in strength noted following her 5 last treatment. Id. at 342. R.S. was discharged on December 15, 2013, with instructions to follow up with her primary neurologist as needed. Id. at 325. On December 20, 2013, Petitioner presented for a follow-up appointment with Dr. Stommel. Petitioner reported that she continued to experience weakness, but could ambulate well with a walker. Pet. Ex. 7 at 471-72. On exam, Dr. Stommel noted residual complaints, including sensory loss in the lower extremities, weakness in both legs, and subtle weakness in the biceps. Id. at 471. A repeat nerve conduction study revealed a slight worsening in active denervation in the left tibialis. Id. Given the progression of her symptoms, Dr. Stommel recommended that she continue IVIG treatments. Id. Dr. Stommel also prescribed Cellcept. Id. Lab testing conducted on December 26, 2013, and January 15, 2014, indicated that Ms. Saver’s thrombocytosis remained persistent with elevated platelet levels of 554 k/uL and 583 k/uL, respectively. Id. at 477, 484. R.S. remained relatively stable throughout the remainder of 2013, though she continued to complain of tremors, foot pain, blurred vision, fatigue, weakness, and diminished sensation in the lower extremities. Pet. Ex. 7 at 478-79. ii. Medical Treatment in 2014 R.S. presented to Littleton Regional for a fourth hospitalization on January 27, 2014. Pet. Ex. 5 at 63-65, 379. The history recorded at discharge indicated that she was diagnosed with GBS initially on November 6, 2013, and suffered three relapses all of which required IVIG treatment. Id. at 63. Upon admission, R.S. complained of cognitive issues, fever, and chills. Id. at 63-64. She also had “trouble remembering things.” Id. at 64. The attending physician diagnosed R.S. with aseptic meningitis secondary to an IVIG infusion she received on January 23, 2014. Id. at 69. An MRI of the thoracic spine showed a spinal cord neoplasm at the T12-L1 level. Id. at 379. The attending neurologist opined that the neoplasm was likely incidental and not related to petitioner’s paresthesia, which he deemed to be related to a CIDP diagnosis. Pet. Ex. 5 at 64. On February 4, 2014, petitioner presented to the Massachusetts General Hospital (“MGH”) neuromuscular clinic for an evaluation of her persistent symptoms. Pet. Ex. 8 at 26-30. The health history recorded during this visit indicated that R.S.’s symptoms began with progressive lower limb weakness in October 2013 and thereafter progressed to include severe fatigue, calf pain, gait abnormalities, and sensory deficits. Id. at 26-29. The attending physician, Dr. Michael Bowley conducted a repeat EMG and nerve conduction analysis, both of which continued to show evidence of sensory and motor polyneuropathy. Id. at 8-10. Dr. Bowley concluded that R.S. likely had CIDP, with multiple subsequent relapses, given her clinical history of rapidly evolving motor deficits, distal areflexia, and elevated CSF. Id. at 28. R.S.’s “initial improvement” with IVIG was also considered to be supportive of such a diagnosis; however, Dr. Bowley indicated that her repeated relapses did not respond as well to further IVIG treatment. Id. Dr. Bowley recommended that she increase her mycophenolate dose and use corticosteroids as needed. Id. at 29. Her platelet count remained elevated at 627 k/uL. Pet. Ex. 9 at 131. A SPEP test conducted on February 4, 2014, showed an abnormal pattern of two IgA lambda components at 0.22 and 0.06 g/dL in the beta region, but was negative for monoclonal protein. Pet. Ex. 8 at 3-4. 6  Petitioner was hospitalized for a thoracic laminectomy and mass resection on February 12, 2014, both of which were unrelated to her underlying disease course. Pet. Ex. 9 at 25, 127- 28. Prior to the surgery, her treaters discovered a spinal mass and recommended removal out of concern for lymphoma. Id. at 116-19. Pathologic testing indicated that the mass was a T12 hemangioma. On February 18, 2014, R.S. was transferred to a rehabilitation facility for occupational and physical therapy. Pet. Ex. 10 at 36-39. Upon discharge on March 14, 2014, petitioner could ambulate and transfer with a walker. Id. at 38. Her discharge diagnoses included extradural spinal mass and post-T12 laminectomy, with a secondary diagnosis of GBS/CIDP. Id. at 32. On May 27, 2014, R.S. presented for a follow-up appointment at MGH with Dr. Jennifer Dineen. Pet. Ex. 8 at 14-18. She reported that she continued to experience fatigue, weakness in her legs, tremors, nerve pain, gait abnormalities, and blurry vision. Id. at 15-16. Her exam revealed a sensory and motor neuropathy with features indicative of a demyelinating polyneuropathy. Id. at 15. Dr. Dineen recommended that R.S. continue Cellcept and maintain Gabapentin as needed. Id. at 18. She also decreased petitioner’s Prednisone dosage to 30mg daily. Id. at 18. Dr. Dineen did not think that further IVIG treatment would be helpful at this time. Id. iii. POEMS Diagnosis and Treatment in July and August 2014 R.S. presented to Littleton Regional Hospital on July 14, 2014, with complaints of postural headaches, diplopia, incontinence, and cognitive issues. Pet. Ex. 22 at 194. Upon admission, petitioner was evaluated by Dr. Umashanker in the emergency room. Id. A lumbar puncture revealed an elevated opening pressure with no white blood cells detected, and a normal total protein at 38 mg/dl. Id. at 195. A brain MRI conducted during the visit was also normal. Id. Given the above, R.S.’s treaters felt her symptoms were consistent with benign intracranial hypertension. Id. Prior to her discharge, R.S. was also evaluated by an ophthalmologist, Dr. Krista Haight, for complaints associated with eye pressure, pain, and hazy vision. Pet. Ex. 53 at 1. Dr. Haight assessed petitioner with papilledema. Id. at 3. On July 31-August 5, 2014, R.S. presented to MGH for complaints related to persistent headaches and vision changes. Pet. Ex. 18 at 1232. Upon admission, R.S. was evaluated by a neurologist, Dr. Mingming Ning. Id. Cerebrospinal fluid testing was unrevealing. Id. Intake notes indicated that R.S. had symptoms of CIDP-like neuropathy, thrombocytosis, and papilledema. Id. Dr. Ning suspected that R.S. might have POEMS syndrome and he recommended a hematology consult. A SPEP draw with immunofixation, conducted on August 1, 2014, revealed a persistent IgA lambda monoclonal protein with components at 0.15 and 0.06 g/dl. Id. at 1163, 1165. The free light chain evaluation showed normal kappa level, and elevated lambda at 31, which was considered to be within a normal ratio limit. Id. at 1163. It was also noted that R.S. had possible sclerotic lesions in the mandible and right pelvis following a skeletal survey, though a bone scan showed no definitive sclerotic lesions. Id. R.S. returned to MGH on August 12, 2014. Pet. Ex. 18 at 441, 1152. Upon admission, she complained of lethargy, reduced appetite, and blurry vision. She also reported 7 that her symptoms of weakness remained stable, though she had lost movement in her right toe. Id. at 441, 1167. Treaters questioned the need to continue Cellcept and Prednisone in light of the alternative treatment plan for suspected POEMS syndrome. Id. at 1086. Petitioner was evaluated by the attending hematologist, Dr. Annemarie Fogerty, on August 13, 2014. Id. at 1163. Dr. Fogerty assessed petitioner with a progressive neuropathy, dual M-spike, and thrombocytosis, concerning for POEMS syndrome. Id. It was noted that petitioner satisfied the two major criteria for the condition (i.e., neuropathy and monoclonal gammopathy), as well as two minor criteria: papilledema and thrombocytosis. Id. Petitioner’s VEGF7 levels, taken on August 14, 2014, were noted to be elevated at 1799 (reference range: 31-86), and the diagnosis of POEMS syndrome was confirmed. Id. at 444, 446. Prior to her discharge on August 18, 2014, petitioner was evaluated by another hematologist, Dr. Andrew Yee. Pet. Ex. 18 at 1082. Dr. Yee discussed POEMS syndrome with R.S. and explained her course in light of the accepted diagnostic criteria. In his opinion, multiple clinical factors identified in R.S.’s prior history, including: polyneuropathy, IgA lambda gammopathy, markedly elevated VEGF levels, thrombocytosis, and papilledema, supported a POEMS diagnosis. Id. Dr. Yee also discussed treatment options with R.S., including a stem cell transplant. Id. Petitioner’s records reveal that Dr. Yee recommended Revlimid and dexamethasone for her POEMS-related symptoms. Id. iv. Medical Care in 2015 and Current Condition R.S. underwent an autologous stem cell transplant on January 29, 2015. Pet. Ex. 18 at 385-93. Of note, her VEGF levels improved with treatment. Id. at 386. R.S.’s platelets also returned to normal. Pet. Ex. 19 at 1, 28. On June 17, 2015, R.S. presented to Dr. Angela Dispenzieri, a hematologist at the Mayo Clinic, for a second opinion regarding her POEMS diagnosis. Dr. Dispenzieri noted that petitioner had been diagnosed with POEMS in August 2014 based on a set of factors, including: demyelinating peripheral neuropathy, IgA lambda monoclonal protein, hypertrichosis, white nails, papilledema, peripheral edema, and thrombocytosis. Pet. Ex. 19 at 27. Dr. Dispenzieri placed the onset of petitioner’s illness in October 2013, when she experienced new onset fatigue and numbness/tingling in the feet, along with eruptions of cherry angiomas on the skin. Id. By October/November 2013, her symptoms progressed to include muscle pain, difficulty walking, ascending hip pain, numbness in the fingers, and slight drooling. Id. Her initial hospitalization in November 2013 for presumed GBS/CIDP was noted, along with her initial marked improvement with IVIG treatment. Following her initial hospitalization, Dr. Dispenzieri noted that R.S.’s course worsened. Pet. Ex. 19 at 27. Additional treatment with IVIG, Cellcept, and Prednisone through 2014 did not result in similar levels of improvement. Id. Following her POEMS diagnosis, 7 VEGF levels are elevated in patients diagnosed with POEMS syndrome. See Pet. Ex. 29, Tab F at 215. VEGF is known to target endothelial cells and induce a rapid and reversible increase in vascular permeability. Id. It is expressed by osteoblasts in bone tissue, macrophages, tumor cells, including plasma cells, and megakaryocyte/platelets. Id. 8 R.S. started treatment with Revlimid and dexamethasone between September 2014 and December 2014, which resulted in a significant decrease in the serum VEGF, but only marginal improvement in her lower extremity neuropathy symptoms. Id. at 28. Further treatment with cyclophosphamide mobilization, high-dose melphalan, and stem cell infusion resulted in good improvement. Id. All in all, Dr. Dispenzieri opined that R.S.’s course was consistent with POEMS syndrome. Id. at 30. As of May 2015, R.S. continues to be treated for POEMS. Pet. Ex. 18 at 562. She routinely experiences fatigue, intermittent headaches, hot flashes, foot swelling and discomfort, and diminished strength in both feet. Id. at 563-64. A neurological exam conducted on May 29, 2015 showed normal function apart from marked weakness and sensory loss in the lower limbs. Id. at 565. Her gait was also improved. Id. V. Fact and Expert Testimony A. Fact Witnesses i. Russell S., M.D. Dr. S., petitioner’s husband, testified about her health history and course following her receipt of the flu vaccine at issue herein. Tr. 139. Prior to receiving the flu vaccine, Mr. S described petitioner as healthy and physically active. Tr. 142. She enjoyed skiing, hiking, completing household tasks, and spending time with the family dogs. Tr. 142, 144. R.S. worked as a medical assistant/consultant with a primary focus on electronic medical record training and administration. Tr. 143. Dr. S. testified that petitioner’s position as a consultant was demanding, but she enjoyed the social interaction and travel-related responsibilities. Tr. 143-44. Dr. S. next recalled petitioner’s deterioration in health following her receipt of the flu vaccine. Tr. 145. He testified that petitioner returned from a work conference shortly after receiving the flu vaccine, at which time she began complaining of calf pain and numbness in the feet. Id. Given his medical training, Dr. S. suspected that petitioner might have GBS, but she initially attributed these early-in-time symptoms to travel fatigue or perhaps the wearing of high- healed shoes. Tr. 145-46. According to Dr. S., petitioner first sought treatment for her symptoms around the beginning of November 2013. Tr. 146. He recalled that petitioner complained of persistent calf, upper leg, and back pain. Id. She had also fallen several times at work. Tr. 146-47. Her symptoms rapidly progressed to include numbness and tingling in the feet, ankles, and hands. Tr. 147. Petitioner also experienced paralysis, drooling, palpitations, nerve pain, and breathing difficulties, which prompted her initial emergency room visit on November 6, 2013 to Dartmouth Hitchcock. Tr. 147-48. During her initial hospitalization, Dr. S. recalled that petitioner’s symptoms improved immediately upon receiving IVIG treatment. Tr. 150. She gained back much of her strength following two to three doses. Id. Upon discharge, R.S. needed assistance with 9 standing. Tr. 151. She also experienced problems with her balance. Id. Otherwise, she returned home following clearance by her physical and occupational therapists. Id. In the days following her initial hospitalization, Dr. S. stated that petitioner expressed concern regarding the length of time of her recovery. Tr. 152. Petitioner’s recovery remained steady and she expressed interest in returning to work. Id. Roughly two weeks later, however, she experienced a relapse in symptoms. Id. The pain, numbness, and weakness started in her feet and progressed up her body. Id. Petitioner was hospitalization a second time, but improved following additional rounds of IVIG treatment. Tr. 153. Dr. S. recalled that both he and petitioner understood her recovery would be gradual, but they both expected a full recovery consistent with a GBS course. Tr. 53-54. Following a third hospitalization, Dr. S. recalled that petitioner’s treaters expressed some skepticism regarding the progression of her symptoms, as such treatment-related fluctuations attributable to GBS did not usually progress for extended periods of time. Tr. 154. Dr. S. recalled that petitioner’s doses of IVIG administered during the third hospitalization did not result in the same improvement as the previous infusions. Tr. 155-56. According to Dr. S., around December 2013, petitioner’s diagnosis changed to CIDP, which he understood to be a chronic form of GBS. Tr. 160. He recalled that petitioner’s treaters recommended a change in medication to include steroids and Cellcept. Id. Consistent with the medical records detailed above, Dr. S. recalled that petitioner was assessed for other health concerns as her course progressed (primarily during January 2014). Tr. 160. Specifically, petitioner developed aseptic meningitis following a rapid administration of IVIG. Tr. 160-61. Treaters also identified thoracic lesions following a full-body MRI, which resulted in a lymphoma work-up and lesion removal thereafter in February of that year. Tr. 161- 62. Petitioner’s surgery and weakened state resulted in an extended stay in a rehabilitation facility throughout March, April, and May 2014. Tr. 163. Dr. S. next recalled petitioner’s course throughout July and August 2014, along with her initial diagnosis of POEMS. Tr. 163. Dr. S. recalled that petitioner began to complain of a significant increase in angiomas, weight loss, fatigue, and further gait abnormalities throughout this time period. Tr. 163-65. In July 2014, petitioner also began to experience intercranial pressure, which resulted in a brain shunt, and papilledema. Tr. 165-66. Following a hematologic consult in August of that year, Dr. S. recalled that petitioner’s treaters suspected she had POEMS due to her elevated platelet levels and serum VEGF. Tr. 166. Dr. S. also attended petitioner’s appointment at the Mayo Clinic with Dr. Dispenzieri. Tr. 167. According to Dr. S., petitioner’s treaters recommended she see Dr. Dispenzieri given her extensive experience with POEMS patients and the overall rarity of the disease. Tr. 168. In his view, petitioner scheduled the visit to discuss the best treatment protocol moving forward. Id. He did not recall Dr. Dispenzieri discussing the onset of petitioner’s POEMS or her initial GBS diagnosis. Tr. 168-69. Given the extent of her health deterioration over the course of 2013 and 2014, Dr. S. testified that petitioner continues to experience a number of ongoing physical disabilities due to 10 her condition. Tr. 172. She has fatigue, pain, and balance issues. Tr. 172, 176. These ailments require routine maintenance, including daily medication. Tr. 176-77. Due to the pressure on her brain, petitioner underwent a surgical procedure to insert a brain shunt which helped with her balance. Tr. 176. She also continues to suffer from anxiety and depression. Tr. 172-73. Dr. S. expressed concern regarding petitioner’s health in the long term given her persistent physical limitations and mental health issues. Tr. 177-78. ii. R.S. Petitioner, R.S., also testified at hearing. Tr. 179. Her testimony largely consisted of her own recollections of her overall health history prior to receiving the flu vaccine, as well as descriptions of the symptoms that followed. Prior to October 2013, petitioner described herself as healthy, physically active, and outgoing. Tr. 181, 184. She worked as a medical assistant/consultant and enjoyed the travel and social interaction her job required. Tr. 181-82, 184-85. Petitioner recalled the day she received the vaccine at issue in this matter. Tr. 186. She described the day as normal. Id. She did not experience any unusual symptoms during vaccine administration or in the days immediately thereafter. Id. Petitioner stated that she first began to experience adverse symptoms, such as numbness in the feet and fatigue, roughly two weeks post vaccination. Tr. 186-88. By early November 2013, however, R.S. recalled that her symptoms progressed to include gait and swallowing abnormalities, pain, numbness in the fingers and legs, and drooling. Tr. 188-89. Following initial treatment with IVIG, petitioner testified that she felt “remarkably better.” Tr. 191. Petitioner reported that she could ambulate with a walker and regained some of her upper body strength upon discharge. Tr. 192. Despite her symptoms, petitioner’s treaters indicated to her that she should expect to recover fully, though the overall healing would take time. Id. Following two additional hospitalizations for a relapse of symptoms, R.S. recalled that IVIG treatment seemed to be less effective. Tr. 193-95. Leading up to her POEMS diagnosis in August 2014, Petitioner testified that she began to experience head pain/cranial pressure and papilledema in the summer of 2014. Tr. 195-96. She recalled the day her treaters recommended a blood draw to measure her serum VEGF. Tr. 198. Roughly two weeks later, she was diagnosed with POEMS syndrome. Id. R.S. next recalled her visit with Dr. Dispenzieri at the Mayo Clinic. Tr. 199. She stated that her treaters recommend she see Dr. Dispenzieri given her expertise in the disease. Id. Petitioner reported that that she discussed various treatment options with Dr. Dispenzieri to determine how best to proceed with the overall management of the disease. Id. Despite her satisfaction with Dr. Dispenzieri’s recommendations, R.S. took issue with some of the visit notes indicating that her POEMS syndrome began in late 2013. Tr. 200. Rather, R.S. reported that she may have felt “run down” from working, but she did not recall experiencing any other adverse symptoms apart from normal angiomas. Tr. 201. 11  Consistent with Dr. S.’s testimony, petitioner reported that she continues to suffer from adverse symptoms related to her illness. Tr. 201-02. She attends multiple doctor visits to manage her symptoms. Tr. 204. For instance, Petitioner noted that she has undergone a shunt placement procedure and stem cell transplant to help abate her disease progression. Tr. 203. She also continues to suffer from depression. Id. All in all, R.S. expressed frustration in her inability to work, to take part in outdoor activities, and to actively participate in family life. Tr. 203-04. B. Expert Witnesses i. Norman Latov, M.D. Dr. Latov provided an opinion on petitioner’s behalf as to the etiology of R.S.’s condition, along with the flu vaccine’s purported role in causing her symptoms. Dr. Latov opined that R.S. was properly diagnosed with GBS, which was vaccine-caused, and that her subsequent diagnosis of POEMS was caused by GBS. Tr. 33-34, 52. Dr. Latov filed three expert reports in support of his medical theory of causation. See Pet. Exs. 29, 31, 38. Dr. Latov obtained his medical degree from the University of Pennsylvania. Tr. 7; Pet. Ex. 30 at 1. After medical school, Dr. Latov went on to complete a neurology residency and immunology fellowship at Columbia University. Tr. 7. He then joined the faculty at Columbia, where his research and teaching responsibilities focused on autoimmune neuropathies. Tr. 7-8. At present, Dr. Latov serves as a Professor of Neurology and Neuroscience, and the Director of the Peripheral Neuropathy Center, at Cornell University. Tr. 8. His clinical duties include supervising medical students and attending to patients in the neuropathy center. Tr. 8-9. Dr. Latov estimated that his clinic practice represents sixty percent of his current work. Tr. 9. He testified that he treats patients with all forms of neuropathy, including GBS and CIDP. Tr. 11. He also follows roughly ten patients with POEMS syndrome. Id. Dr. Latov also conducts research in the fields of neurology and neuroimmunology, and he is board certified in neurology and psychiatry. Tr. 8-9. To begin, Dr. Latov reviewed R.S.’s symptoms and the progression of her condition compared to the most common features of GBS. Dr. Latov defined GBS as an acute, or rapidly progressive neuropathy, in which the immune system attacks the myelin component of the peripheral nerves. Tr. 13, 21; Pet. Ex. 29 at 7. A typical GBS course includes generalized weakness, tingling, pain, unsteady gait, cranial nerve involvement, and loss of bowel function. Tr. 14. Demyelination of the nerve can also result in secondary axonal loss, which leads to chronic muscle atrophy and weakness. Tr. 21. GBS is distinguished from other types of neuropathies by using an array of diagnostic testing, including a physical exam, nerve conduction studies, CSF analysis, and MRI imaging. Tr. 13. The condition is routinely treated with plasmapheresis or IVIG. Tr. 15. Dr. Latov next discussed petitioner’s health history in the weeks prior to her first hospital admission on November 6, 2013, and its relationship to her initial GBS diagnosis and subsequent progression of symptoms. Based on his review of the medical record, Dr. Latov recalled that petitioner developed neuropathy-related symptoms, including progressive weakness and 12 paresthesia in the hands, two weeks following her receipt of the flu vaccine on October 1, 2013. Tr. 12-13. She also complained of calf pain, ascending hip pain, numbness in the fingers, and drooling, all of which Dr. Latov characterized as typical GBS-related symptoms. Tr. 13-14. Dr. Latov relied heavily on petitioner’s contemporaneous diagnostic testing in formulating his opinion regarding her October and November 2013 neuropathy symptoms. As the medical record reveals, the testing completed during petitioner’s initial hospitalization showed an increased CSF protein, but no inflammatory changes. Tr. 12. EMG and nerve conduction studies were also consistent with a GBS diagnosis. Id. Petitioner thereafter experienced a rapid improvement in strength following treatment with IVIG therapy. Tr. 13, 15; see Pet. Ex. 7 at 3-4, 14.8 Given the above, Dr. Latov posited that petitioner’s early symptoms were consistent with GBS and he felt that her treating physicians correctly identified the diagnosis and treated her appropriately. Tr. 15. Following her initial diagnosis, Dr. Latov reported that petitioner experienced two presumed GBS-related relapses. Tr. 12; Pet. Ex. 29 at 9-10. After her second hospital admission, Dr. Latov noted that petitioner received additional rounds of IVIG therapy with noted improvement in her muscle strength. Tr. 17-18; see Pet. Ex. 5 at 662-64; Pet. Ex. 17 at 18. Similarly, in his view, petitioner responded well to IVIG treatment following her third relapse. Tr. 18-20; see Pet. Ex. 17 at 8, 18; Pet. Ex. 7 at 322. Due to her protracted course, Dr. Latov categorized these relapses as “GBS with treatment-related fluctuation.” Tr. 20 (“each treatment seems to result in improvement for about two weeks, and then she would relapse’), 21. As her course continued to deteriorate, Dr. Latov noted that petitioner’s diagnosis changed to CIDP around mid-December 2013 due to the repeated relapses outlined above. Tr. 22; Pet. Ex. 29 at 10. Dr. Latov described CIDP as a “sort of chronic” GBS. Tr. 22. In his experience, patients suffering from GBS relapses extending beyond two months are best categorized as experiencing CIDP. Id. Indeed, the medical literature cited by Dr. Latov defines CIDP as immune-mediated neuropathy with an initial phase lasting more than two months, whereafter the course may be relapsing-remitting, steadily progressive, or monophasic. See Pet. Ex. 29, Tab O at 1680.9 Consistent with R.S.’s treaters, Dr. Latov posited that he would have designated a change in her diagnosis to CIDP at this time given her persistent symptoms. Tr. 22. By July 2014, R.S. was diagnosed with POEMS syndrome. Tr. 22, 50. Dr. Latov described POEMS syndrome as a plasma cell disorder of unknown etiology. Tr. 58-59. Traditionally, the disorder is accompanied by a slowly progressive, demyelinating neuropathy associated with a lambda monoclonal gammopathy and increased serum levels of VEGF. Tr. 23- 24, 55; Pet. Ex. 29 at 7. The diagnostic criteria for the disease require a combination of 8 In addition to IVIG, Dr. Latov noted that petitioner received a dose of Solu-medrol, a steroid treatment not typically used to treat GBS. Tr. 16. He suspected that R.S. received this treatment for her neuropathy-related pain. Id. 9 L. Ruts et al., Distinguishing Acute-Onset CIDP From Fluctuating Guillain-Barré Syndrome: A Prospective Study, 74 Neurol. 1680 (2010). 13 neuropathy, monoclonal gammopathy, and elevated VEGF, or the presence of Castleman’s disease. Tr. 23, 58; see Pet. Ex. 29, Tab F at 214. Other systemic manifestations can include fluid overload, ascites or papilledema, intercranial pressure, skin changes, and endocrine abnormalities. Tr. 23. Dr. Latov posited that patients with POEMS are typically treated with Revlimid or lenalidomide. Tr. 25. Consistent with petitioner’s treating physicians, Dr. Latov agreed that R.S. met the diagnostic criteria for a POEMS syndrome diagnosis by July or August 2014. Tr. 24, 50. In reference to the medical record, Dr. Latov recalled that petitioner presented with a small IgA, lambda monoclonal gammopathy in February 2014. Tr. 24. She thereafter developed papilledema, and was found to have elevated serum VEGF levels in August 2014. Tr. 24, 50. Based on his interpretation of the medical records, Dr. Latov posited that R.S. developed two separate disease processes over the course of her illness: GBS and POEMS syndrome. Tr. 23; Pet. Ex. 38 at 2. At the same time, Dr. Latov explained that petitioner’s GBS evolved into CIDP and then POEMS, resulting in some overlap in the conditions. Tr. 23 (“she probably had POEMS syndrome and CIDP concurrently”) 33, 61. Given the accompanying neuropathy that is typically associated with GBS/CIDP and POEMS syndrome, Dr. Latov opined that the diseases are difficult to distinguish clinically at onset. Despite the similarities, Dr. Latov adamantly maintained that R.S.’s initial symptoms in October and November 2013 were not evidence of an onset of POEMS. Tr. 35, 52, 54-55, 69; Pet. Ex. 29 at 9. In so stating, Dr. Latov dismissed opinions from petitioner’s later-in- time treating physicians who placed her onset of POEMS syndrome in October 2013 close-in- time to her initial neuropathy and eruption of cherry angiomas. Tr. 46-47, 49. Rather, he maintained that the first manifestation of POEMS syndrome occurred in July/August 2014 when R.S. experienced increased cranial pressure/papilledema, and her bloodwork indicated an increase in serum VEGF levels and the presence of monoclonal gammopathy. Tr. 55-56, 85. Dr. Latov next discussed the medical record evidence he deemed supportive of his opinion that R.S.’s initial neuropathy-related symptoms, beginning in October 2013, were indicative of GBS as opposed to POEMS syndrome. Dr. Latov opined that a neuropathy associated with POEMS syndrome is typically chronic or subacute in nature and nonresponsive to treatment with IVIG therapy. Tr. 24-25, 35. In contrast, a neuropathy associated with GBS is acute, or rapidly progressive, and responds well to IVIG. Tr. 57-58. In R.S.’s case, Dr. Latov concluded that her initial neuropathy was best attributable to GBS given the rapid progression of symptoms and her positive response to IVIG therapy. In support, Dr. Latov referenced instances in the medical records where petitioner’s treaters reported an improvement in muscle strength over the course of her hospital admissions. He maintained on cross examination that R.S.’s response to IVIG as a whole, or over the course of her three hospitalizations, was consistent over the active course of her GBS and the related relapses, despite some suggestion by respondent that the treatment gradually became less robust. Tr. 36. 14  On cross examination, Dr. Latov was questioned further regarding the effectiveness of IVIG and plasmapheresis in patients with POEMS syndrome. Tr. 36. For instance, respondent offered a study authored by Dr. Latov, and submitted into evidence by petitioner, which reports that patients with monoclonal gammopathy can experience some clinical improvement following IVIG and plasmapheresis therapy. Tr. 36-37; see Pet. Ex. 29, Tab H.10 Dr. Latov acknowledged the study, but maintained that neuropathies associated with POEMS syndrome do not respond well to IVIG treatment. Tr. 37-38, 39. He explained that treatment effectiveness depends on the type of monoclonal gammopathy experienced and the underlying disease process associated with its occurrence. Id. For example, monoclonal gammopathies related to GBS or CIDP will respond well to IVIG, whereas classic POEMS does not. Tr. 36-37, 38-39. In support, Dr. Latov cited to case reports of POEMS patients reporting an improvement in GBS-related symptoms following treatment with IVIG. See, e.g., Pet. Ex. 29, Tab Q;11 Resp. Ex. A, Tab 10;12 Resp. Ex. A, Tab 6.13 In addition to her initial neuropathy, Dr. Latov recalled that petitioner experienced cranial nerve symptoms, such as drooling, during her first hospital admission. Tr. 24, 76, 85. Based on his review of the literature, Dr. Latov opined that cranial nerve involvement is not typically associated with POEMS syndrome. Tr. 24-25. He estimated that older POEMS literature identifies cranial nerve involvement as a presenting symptom in one percent of cases. Tr. 59-60. He further reported that updated literature discussing POEMS syndrome does not implicate the cranial nerve. Tr. 59, 76-77; see Resp. Ex. A, Tab 6 at 678. GBS, on the other hand, is more often associated with the cranial nerve. Tr. 14, 24, 55, 76. Dr. Latov thus concluded that petitioner cranial nerve symptoms were likely attributable to GBS. Tr. 55, 76. Dr. Latov downplayed the significance of R.S.’s cherry angioma eruption, occurring simultaneous with her neuropathy. Tr. 47, 61. At hearing, he estimated that fifty percent of the population experiences cherry angiomas, a condition which is routinely unrelated to some underlying disease process. Tr. 47, 61; see Pet. Ex. 31, Tab R at 905. Dr. Latov further posited that POEMS syndrome is associated with “glomerulus angioma[,]” which petitioner did not have. Tr. 47, 63-64; see Pet. Ex. 31, Tab N at 1349.14 Given the prevalence of angiomas, 10 Norman Latov, Pathogenesis and Therapy of Neuropathies Associated with Monoclonal Gammopathies, 37 Ann. Neurol. S32 (1995). 11 Monika Sojka et al., Guillain-Barré Syndrome as the First Manifestation of POEMS Syndrome, 46 Neurologia i Neurochirurgia Polska 284 (2012). 12 Ju-Hong Min et al., POEMS Syndrome Presenting with Acute Demyelinating Polyneuropathy: Increased Terminal Latency Indices and Uniform Demyelination, 52 Intern. Med. 1513 (2013). 13 S. Isose et al., POEMS Syndrome with Guillain-Barré Syndrome-Like Acute Onset: A Case Report and Review of Neurological Progression in 30 Cases, 82 J. Neurol. Neurosurg. Psychiatry 678 (2010). Rachel Miest et al., Cutaneous Manifestations in Patients with POEMS Syndrome, 52 Int’l J. 14 Dermatol. 1349 (2013). 15 Dr. Latov could not conclude that this symptom more likely than not supported a finding of an onset of POEMS in October/November 2013. Tr. 47-48. To further distinguish between R.S.’s initial GBS diagnosis and her development of POEMS syndrome, Dr. Latov spent some time at hearing discussing the relevance of petitioner’s SPEP test results. Tr. 43-44. R.S.’s initial SPEP test, conducted in November 2013, was negative for the monoclonal protein, a finding that suggested petitioner did not have POEMS around that time period. Tr. 43 (“serum protein electrophoresis was negative without an M protein”); see Pet. Ex. 7 at 600. On cross examination, however, Dr. Latov agreed that a small number of POEMS patients can present with normal SPEP. Tr. 43-44, 85-86. He further acknowledged that the SPEP test petitioner received in early November 2013 was conducted without immunofixation, the preferred method to test for monoclonal gammopathy. Tr. 43. On cross examination, respondent questioned Dr. Latov regarding the significance of R.S.’s persistent thrombocytosis and its relationship to her POEMS syndrome diagnosis. Tr. 44. Dr. Latov agreed that thrombocytosis can be a presenting symptom in both GBS and POEMS. Id. He estimated that fifty percent of patients with an inflammatory condition experience thrombocytosis. Id. Once the inflammation is treated, the platelet count returns to normal in most cases. Id. Dr. Latov acknowledged that R.S. presented with an elevated platelet count during her first hospitalization for neuropathy symptoms in November 2013, which progressed through 2014. Tr. 45. He could not recall if petitioner’s count improved following her treatment for POEMS syndrome. Id. Dr. Latov next proposed a medical theory of causation by which the flu vaccine caused R.S. to develop GBS, and thereafter, POEMS syndrome: the biologic process of molecular mimicry accompanied by chronic immune stimulation. Tr. 26. Dr. Latov’s testimony on molecular mimicry theory revolved around a concept that has largely been accepted in the medical community, and often in the Vaccine Program, as a causal mechanism for a flu vaccine- induced GBS injury. In short, Dr. Latov proposed that antibodies produced to fight off a foreign antigen/infection or generated in response to a vaccine can mistakenly attack, or cross-react with the myelin basic protein, a primary component of the human nerves. Tr. 26-27. As a result, an autoimmune process begins, which further promotes the production of these antibodies that then mistakenly attack the self, thereby causing damages to the nerve’s myelin sheath.15 Tr. 27; see Pet. Ex. 29, Tab P at 105.16 Dr. Latov acknowledged at the hearing that he is not proposing that the flu vaccine caused petitioner’s POEMS syndrome. Tr. 55, 72-73. But rather, as noted earlier, he theorized that petitioner’s POEMS syndrome was a direct result of GBS, which he deems vaccine-induced, 15 At hearing, Dr. Latov briefly referenced the concept of bystander activation as a possible mechanism by which the flu vaccine could initiate an autoimmune reaction via autoreactive immune cells (produced secondarily to those responding to the foreign antigen). Tr. 26; see Pet. Ex. 29 at 8. 16 Lawrence Schonberger et al., Guillain-Barré Syndrome Following Vaccination in the National Influenza Immunization Program, United States, 1976-1977, 110 Am. J. Epidemiol. 105 (1979). 16 a theory he acknowledged has not been described in the medical literature to date as an established mechanism for pathogenesis. Tr. 33, 54, 56-57. To causally connect plasma cell disorders or plasma cell “dyscrasia” to GBS, Dr. Latov posited that an over-production of plasma cells is thought to be secondary to the chronic stimulation of B-cells which resulted from petitioner’s GBS. Tr. 33, 50-51. When asked to describe how GBS could trigger POEMS, Dr. Latov stated that “if the monoclonal gammopathy happens to be lambda light chain and associated with [] the VEGF and the other cytokines, it can by chance, become POEMS.” Tr. 31. Dr. Latov posited that while chronic stimulation is necessary to initiate POEMS, the monoclonal gammopathy can self-perpetuate once its “in place” without further immune stimulation. Tr. 67. Dr. Latov’s testimony regarding the role of cytokines in his theory was vague. He explained that proinflammatory cytokines are produced by the immune system in response to a foreign antigen invasion. Tr. 32. Dr. Latov could not recall if cytokines are pathologically associated with the onset of GBS, but he theorized that the IL-6 cytokine may induce abnormal levels of VEGF which is related to POEMS syndrome. Tr. 32, 59. Despite these assertions, Dr. Latov did not cite to any studies supporting a theory that cytokines can result in elevated serum levels of VEGF. Tr. 32. He also acknowledged that anti-cytokine agents do not ameliorate the clinical manifestations of POEMS syndrome. Id. At hearing, Dr. Latov discussed multiple medical articles that he stated supported his theory that a plasma cell disorder, such as POEMS syndrome, could result from the chronic inflammation produced secondary to GBS. Tr. 28. First, Dr. Latov referenced the Di Troia article. Id.; see Pet. Ex. 29, Tab E.17 The Di Troia article correlated the clinical and electrophysical features of neuropathy with the duration and anti-neural activity of the M-protein in seventeen patients to determine the pathogenic relevance of an IgG monoclonal gammopathy. Pet. Ex. 29, Tab E at 64. Dr. Latov posited that the Di Troia study is relevant to the present matter because it shows that a monoclonal gammopathy can occur simultaneous with a neuropathy. Tr. 28, 81. Indeed, the authors of Di Troia reported that all patients included in the study were diagnosed with a neuropathy prior to onset of a monoclonal gammopathy. Pet. Ex. 29, Tab E at 66. They concluded, however, that the “pathogenic relevance of this association is . . . unknown.” Id. at 70. Dr. Latov acknowledged this conclusion at hearing, and agreed that further investigation is needed to determine how the two disease processes are related. Tr. 66. Dr. Latov next discussed the McShane article. Tr. 29-30; see Pet. Ex. 31, Tab M.18 The McShane article catalogs the current literature undertaken to evaluate the strength of evidence linking autoimmune disease with an elevated risk of monoclonal gammopathy and multiple myeloma. Pet. Ex. 31, Tab M at 332. Dr. Latov posited that researchers in McShane found an elevated risk of both monoclonal gammopathy and multiple myeloma in the presence of autoimmune disease. Tr. 29. Notably, however, researchers in McShane could not identify a 17 A. Di Troia et al., Clinical Features and Anti-Neural Reactivity in Neuropathy Associated with IgG Monoclonal Gammopathy of Undetermined Significance, 164 J. Neurol. Sci. 64 (1999). 18 Charlene McShane et al., Prior Autoimmune Disease and Risk of Monoclonal Gammopathy of Undetermined Significance and Multiple Myeloma: A Systemic Review, 23 Cancer Epidemiol. Biomarkers Prev. 332 (2014). 17 specific causal relationship between any autoimmune disease and the development of a monoclonal gammopathy or multiple myeloma. Pet. Ex. 31, Tab M at 335, 340. The article thus concludes only that the two conditions “may be of autoimmune origin” and that “immune-based biomarkers may be useful in predicting disease onset and progression.” Id. at 340. Finally, Dr. Latov referenced the Soderberg study. Tr. 30; see Pet. Ex. 31, Tab W.19 Dr. Latov posited that the authors in Soderberg concluded that chronic autoimmunity and immune stimulation could contribute to the development of hematological malignancies or myeloma. Tr. 30. Indeed, Soderberg studied roughly 40,000 cases of leukemia, Hodgkin’s disease, non- Hodgkin’s lymphoma, and myeloma in Sweden during 1987-1999 to investigate potential associations between several autoimmune diseases. Pet. Ex. 31, Tab W at 3028. Researchers in Soderberg found an elevated risk of malignancy in autoimmune haemolytic anemia and idiopathic thrombocytopenic purpura. Id. They theorized that chronic autoimmunity or immune stimulation induced by activated immune cells could lead to random mutation in dividing cells. Id. at 3028. Although petitioner in the present matter was not diagnosed with a preceding autoimmune disorder, Dr. Latov maintained that the Soderberg article supported his opinion given that monoclonal gammopathies are thought to precede the development of myeloma. Tr. 31. All in all, Dr. Latov agreed that there is “no proof” that GBS/CIDP can contribute to the development of POEMS syndrome, but he continued to maintain that evidence of a temporal relationship between the two suggests petitioner’s POEMS could be due to chronic immune stimulation. Tr. 30. Given the rarity of the disease, Dr. Latov acknowledged that he knew of no study detailing any direct relationship between GBS/CIDP and POEMS. Tr. 40. Dr. Latov thus relied upon case reports to establish a causal link between GBS and/or CIDP and POEMS syndrome. Id. The first case report cited by Dr. Latov was the Sojka case report. See Pet. Ex. 29, Tab Q. On cross examination, respondent maintained that the Sojka case report described a patient who presented with GBS-like symptoms, but ultimately received a POEMS diagnosis following testing which confirmed the presence of the monoclonal protein. Tr. 40-42; Pet. Ex. 29, Tab Q at 284. Respondent posited that the patient was diagnosed with GBS at onset due to the similarity in neuropathy-related features as well as the initial negative testing for the monoclonal protein. Tr. 40-42. Dr. Latov proposed, however, that the patient likely had GBS initially and developed POEMS months later, consistent with his theory that the chronic inflammation associated with GBS can result in POEMS. Tr. 42. Dr. Latov also commented on the Isose article, a case report and review of thirty POEMS cases. Tr. 74; see Resp. Ex. A, Tab 6 at 678. The case report discussed in Isose describes a patient who presented initially with acute neuropathy symptoms thought to be related to GBS and then CIDP following a six-week progression of symptoms. Resp. Ex. A, Tab 6 at 678. A laboratory examination conducted around six weeks after onset was positive for monoclonal gammopathy. Id. The patient was thereafter diagnosed with POEMS around eight weeks 19 Karin Soderberg et al., Autoimmune Diseases, Asthma and Risk of Hematological Malignancies: A Nationwide Case-Control Study in Sweden, 42 Eur. J. Cancer 3028 (2006). 18 following the onset of her neuropathy after additional laboratory results revealed elevated serum VEFG levels. Id. Dr. Latov maintained that the patient described in Isose suffered from GBS and POEMS “concurrently[,]” as the POEMS syndrome diagnosis occurred multiple weeks after the neurological abnormalities were recorded. Tr. 74. As to the timing of onset of R.S.’s illness, Dr. Latov maintained that she experienced her first symptom of GBS two weeks post vaccination. Tr. 33. In his view, a two- week onset falls within an appropriate timeframe for an immune-mediated injury caused by a vaccine. Id. For support, Dr. Latov relied primarily on the flu/GBS epidemiologic evidence in the Schonberger study. As discussed earlier, researchers in Schonberger studied the incidence of onset of GBS following the swine flu vaccine, concluding that an increase in disease frequency occurred mostly within a five-week week period thereafter. Pet. Ex. 29, Tab P at 105. To conclude, Dr. Latov briefly addressed evidence in the record suggesting R.S. suffered from some gastrointestinal infection three days following her receipt of the flu vaccine in October 2013. Tr. 70. Dr. Latov acknowledged that prior infection can be a precursor illness to GBS, but he felt petitioner’s illness was too mild to be causal given that she did not experience accompanying systemic manifestations such as a fever. Tr. 70-71. Even so, Dr. Latov theorized that a pre-existing gastrointestinal infection, coupled with a vaccination, could combine to trigger GBS. Tr. 71. ii. Samir Parekh, M.D. Dr. Parekh served as petitioner’s second testifying expert. He offered one expert report in support of her claim. See Pet. Ex. 57. Consistent with Dr. Latov, Dr. Parekh offered the opinion that R.S. initially presented with GBS in November 2013, and that chronic immune stimulation produced secondarily to GBS caused R.S. to develop POEMS syndrome thereafter in August 2014. Tr. 225, 249-50, 251. Dr. Parekh received his medical degree from the K.J. Somaiya Medical College at the University of Bombay in India. Tr. 213. After medical school, Dr. Parekh completed an internship and residency in internal medicine at Rush University in Chicago, Illinois. Id. He thereafter completed a clinical and research fellowship in hematology and medical oncology at Albert Einstein College of Medicine in New York. Id. In his clinical fellowship, Dr. Parekh treated patients with a variety of cancer and non-cancer hematological diseases. Id. He trained specifically in bone marrow transplantation. Tr. 214. Dr. Parekh is board certified in internal medicine and hematology. Tr. 214. Following his university training, he worked as an Assistant Professor at the Albert Einstein College of Medicine from 2003 to 2013. Id. At present, he serves as an Associate Professor of Hematology and Oncology, with a secondary appointment in oncological sciences within the graduate school, at the Icahn School of Medicine at Mount Sinai Medical Center. Tr. 215. As part of his research duties, Dr. Parekh studies the genomics of multiple myeloma. Tr. 216-17. His lab work also includes drug development for myeloma and hematological malignances. Id. Dr. Parekh also 19 attends to patients in a clinical setting, focusing on hematological malignances and myelomas. Id. He has treated and diagnosed individuals with POEMS syndrome. Tr. 219.20 Dr. Parekh’s opinion largely mirrored Dr. Latov’s although Dr. Parekh delved further into the debate regarding the proper diagnosis of petitioner’s symptoms, whether GBS and POEMS, or solely POEMS. Dr. Parekh began by discussing the underlying components of plasma cell dyscrasias. Tr. 223. He defined plasma cell dyscrasias as a spectrum of diseases caused by an over production of abnormal plasma cells clones. Id. Dr. Parekh explained that healthy individuals produce plasma cells, a type of disease-fighting white blood cell, which make antibodies against the various foreign antigens entering the body. Id. In patients with plasma cell dyscrasia, the plasma cell starts reproducing uncontrollably, making copies of itself and producing an excess of the antibody or immunoglobulin. Id. The most common plasma cell disorder is the monoclonal gammopathy of unknown significance or “MGUS[,]” a term used to describe a patient that has an abnormal blood test showing a protein of clonal nature. Tr. 224. As the plasma cells continue to grow in excess, they can result in low blood counts, kidney failure, bone lesions, or in severe cases, active myeloma. Tr. 224-25. Dr. Parekh next discussed the four diagnostic criteria for a POEMS syndrome diagnosis, as described in the Dispenzieri article. Tr. 225; Pet. Ex. 57 at 3; see Pet. Ex. 29, Tab F at 215. The Dispenzieri article categorizes the two main criteria as monoclonal plasma cell disorder and neuropathy. Tr. 226. The third criteria for POEMS syndrome must consist of one of the following: elevated VEGF, the presence of Castleman’s disease, or sclerotic lesions. Id. The final criteria encompass multiple “minor criteria” and can include organomegaly, endocrinopathy, skin changes, papilledema, thrombocytosis, and others. Tr. 226-27. Based on his review of what he deemed the appropriate clinical criteria, Dr. Parekh opined that R.S. had been correctly diagnosed with POEMS syndrome. Tr. 227. As he explained, she presented with a polyneuropathy in 2013 and thereafter developed a monoclonal plasma cell disorder, elevated VEGF, raised intracranial tension, and papilledema. Id. In his assessment of the contemporaneous medical record, Dr. Parekh’s discussion of R.S.’s clinical course focused primarily on the hematologic aspects of the disease. He mostly deferred to Dr. Latov to explain the significance of her polyneuropathy and presumed GBS diagnosis in November 2013, but he did offer some testimony regarding her early symptoms. Id. Dr. Parekh maintained that R.S.’s initial neuropathy symptoms were more consistent with a GBS. Tr. 246-47. In support, Dr. Parekh posited that petitioner experienced a neuropathy characterized by “ascending neurological deficit[,]” which he considered more indicative of GBS. Tr. 247. Dr. Parekh also referenced petitioner’s cranial nerve involvement (i.e., drooling), occurring at initial onset. Dr. Parekh testified that patients with POEMS syndrome typically do not experience symptoms indicative of cranial nerve disfunction. Tr. 231. He otherwise deemed the symptom to be neurological in nature and deferred to Dr. Latov’s interpretation regarding its significance. Id. Dr. Parekh also noted that multiple of R.S.’s treaters assessed her with GBS and associated the condition with the flu vaccine. Tr. 242-43. 20 On cross examination, Dr. Parekh confirmed that he does not diagnose patients with GBS. Tr. 242. 20  Dr. Parekh also briefly referenced petitioner’s initial response to IVIG therapy following her hospital presentation for neuropathy symptoms. Tr. 247; Pet. Ex. 57 at 3. Consistent with Dr. Latov, he posited that a positive response to IVIG would be consistent with a GBS neuropathy. Tr. 247. Dr. Parekh acknowledged on cross examination, however, that he was aware of case reports showing patients with POEMS syndrome can respond well to IVIG therapy. Id. Dr. Parekh otherwise discussed at length the evidence in petitioner’s medical record which he deemed best supportive of an onset of POEMS syndrome. He began by explaining the significance of Ms. Saver’s SPEP tests in relation to her development of a monoclonal gammopathy. Tr. 227. Consistent with the medical record, Dr. Parekh noted that R.S.’s initial SPEP test, conducted without immunofixation, in November 2013 was negative for M- protein. Tr. 228, 248-49; see Pet. Ex. 5 at 826. A second SPEP test from February 2014 revealed two IgA lambda M-components of .22 grams per deciliter and .06 grams per deciliter, respectively, in the beta region. Tr. 228, 248-49. Based on his reading of R.S.’s February 2014 test, Dr. Parekh posited that she had an abnormal plasma clone at that time. Tr. 228, 249; see Pet. Ex. 57 at 5. By August 2014, R.S. had elevated VEGF, thereby satisfying the third clinical criteria of POEMS syndrome. Tr. 228. Petitioner also underwent a bone marrow biopsy in mid- August, showing a small clonal IgA-positive plasma cell population in the marrow. Tr. 228-29; see Pet. Ex. 18 at 1049. As Dr. Parekh explained, healthy individuals have up to five percent of polyclonal plasma cells, that is cells having both kappa and lambda light chains. Tr. 229-30. R.S.’s biopsy results revealed an abnormal lambda light chain restriction in five percent of her cells, which further supported a finding of monoclonal gammopathy. Tr. 230. On cross examination, Dr. Parekh discussed the relevancy of petitioner’s active thrombocytosis and its relationship to POEMS syndrome. Tr. 244-46. As noted earlier, R.S. presented with elevated platelet levels during her initial hospitalization in November 2013. Tr. 244. Dr. Parekh acknowledged this symptom, but categorized the findings as nonspecific in the context of a POEMS diagnosis. Tr. 244-45; see also Pet. Ex. 57 at 4-5. As he explained, thrombocytosis is a common occurrence in response to unspecified inflammation, infection, or iron deficiency/anemia. Tr. 245-46. Concerning POEMS syndrome, he agreed that thrombocytosis could be a minor finding associated with the illness. Tr. 246.21 Dr. Parekh maintained, however, that elevated platelets are not specific enough to diagnosis a patient with POEMS. Id. Based on the findings discussed above, Dr. Parekh opined that R.S. met the diagnostic criteria for POEMS in or around August 2014. Tr. 231, 249-50. Once diagnosed, she started Revlimid, along with dexamethasone for four cycles, followed by an autologous stem cell transplant, and responded well to both therapies (i.e., her VEGF levels decreased). Tr. 232. Along those same lines, Dr. Parekh acknowledged that R.S. responded somewhat to IVIG 21 Dr. Parekh also agreed that R.S.’s thrombocytosis remained persistent throughout her illness and resolved following treatment for POEMS. Tr. 245-46. 21 therapy in the early stages of her illness. Id. In his clinical experience, however, Dr. Parekh explained that IVIG is not the typical treatment of choice for POEMS syndrome, given that IVIG is not directed at eradicating the plasma cell clone. Id. Nonetheless, Dr. Parekh acknowledged that POEMS may respond to IVIG is some instances. Id. (“there are anecdotal examples where POEMS may respond”). Dr. Parekh next offered his own interpretation of the medical theory of causation applicable herein. Consistent with Dr. Latov, Dr. Parekh opined that the chronic immune stimulation, resulting secondarily from a GBS diagnosis, caused R.S. to develop an overabundance of plasma cells, which in turn led to her onset of POEMS syndrome. Tr. 232, 240-41. To connect chronic immune stimulation and plasma cell dyscrasia, Dr. Parekh began by explaining how plasma cells develop in the body. Tr. 232-33. Plasma cells originate as immature B cells in the bone marrow. Id. Following formation, immature B cells are released into the bloodstream, exposing them to various foreign antigens. Tr. 232-33. B cells then enter the lymph nodes, where they undergo several rounds of a maturation process called high affinity antibody selection to learn how to make antibodies to a particular antigen. Tr. 233. The maturation process produces two types of cells: plasma cells and memory B cells. Id. The remaining cells are deleted from the system via apoptosis. Id. Along those same lines, Dr. Parekh posited that antigens can also be important in the developed of plasma cell proliferation. Tr. 233. In reference to the maturation process discussed above, Dr. Parekh opined that B cells, when presented to an antigen, can become “malignant and undergo monoclonal expansion near the population of expanded cells.” Tr. 235. For support, Dr. Parekh referenced the Nair article. Id. at 233-34, 312-13; see Pet. Ex. 61.22 Nair examined the clonal immunoglobulin in Gaucher’s patients and in mouse models of Gaucher’s disease- associated gammopathies to determine if long-term immune activation could stimulate the monoclonal gammopathy associated with the disease.23 Tr. 234. Researchers in Nair determined that the monoclonal protein underlying the disease-associated gammopathy is specific for certain lysolipids (LGLI and LPC). Id.; see Pet. Ex. 61 at 555. Taken together, Dr. Parekh posited that these proteins could cause the body to develop an overabundance of plasma cells. Tr. 234. Researchers in the same study also conducted experimental mouse models and determined that Gaucher’s medication could reduce the effect of monoclonal protein spikes in gammopathy patients. Id. Dr. Parekh suggested that this finding further supported his suspicion that removing “the antigen” causes plasma cell proliferation to resolve. Id. Dr. Parekh also suggested that cytokines, specifically the IL-6 variant, can stimulate plasma cell growth. Tr. 235. Dr. Parekh referenced the Rush article in support of this assertion. Tr. 235-36. In Rush, researchers conducted a mouse model study to determine if IL-6 can cause plasma cell dyscrasia. Tr. 236. As part of their experiment, the authors genetically engineered mice to overexpress IL-6 and determined that mice injected with the substance developed an 22 Shiny Nair et al., Clonal Immunoglobulin Against Lysolipids in the Origin of Myeloma, 374 New Eng. J. Med. 555 (2016). 23 Dr. Parekh defined Gaucher’s disease as an inborn error of metabolism where patients are deficient in a particular enzyme. Tr. 234. 22 increase in plasma cells and tumors. Id. Dr. Parekh posited that cytokines can also stimulate an overgrowth of myeloma cells, as well as further cytokine expansion, resulting in a “vicious circle of self-perpetuating growth.” Tr. 236-37. Dr. Parekh explained that VEGF, an element strongly considered to be pivotal to the pathogenesis of POEMS syndrome, is a cytokine secreted by plasma cells that causes blood vessel leakage. Tr. 237, 311-12; see Pet. Ex. 29, Tab F at 215. Dr. Parekh next went on to discuss the mineral oil plasmacytoma model or “MOPC[,]” an experimental mouse model he deemed instrumental in studying the development of plasma cell disorders. Tr. 238-39; see Pet. Ex. 68;24 Pet. Ex. 60.25 The Potter article indicates that the mineral oil, pristane, can stimulate plasma cell growth in mice by irritating the peritoneal cavity. Tr. 238; see Pet. Ex. 68 at 18, 28-31. Similarly, researchers in Hofgaard used the same technique to test a multiple myeloma model suitable for studying bone marrow tropism, development of osteolytic lesions, drug testing, and immunotherapy. Pet. Ex. 60 at e51892. According to Dr. Parekh, these two studies support his opinion that a “chronic irritating stimulus can cause inflammation leading to plasma cell dyscrasia.” Tr. 238-39. Finally, Dr. Parekh referenced the Lindqvist epidemiologic study. Tr. 239; Pet. Ex. 59. Lindqvist is a case-controlled study of both monoclonal gammopathy (21,0000 controls/5,000 diagnoses) and myeloma patients (75,000 controls/19,0000 diagnoses), which analyzed the relationship between autoimmune disease and risk of developing plasma cell dyscrasia. Pet. Ex. 59 at 6284. Dr. Parekh referenced table two in the article, which lists multiple autoimmune conditions including GBS, as possibly associated with both monoclonal gammopathy and multiple myeloma. Id. at 6286. The article reports that 6/8 patients developed GBS following onset of a monoclonal gammopathy. Id. Dr. Parekh understood this study to support “an increased risk of developing [monoclonal gammopathy] of almost three-fold.” Tr. 239, 252-53. Notably, the article does not discuss the relationship between autoimmune disease and POEMS syndrome. Tr. 253. Apart from the articles referenced above, Dr. Parekh could not recall any medical literature or evidence to suggest that GBS can be a precursor illness to POEMS, or any other literature directly connecting GBS to POEMS syndrome. Tr. 251. iii. Brea Lipe, M.D. Respondent’s first expert, Dr. Lipe, prepared two expert reports and testified at hearing. See Resp. Exs. C, E. She proposed that R.S. was properly diagnosed with POEMS syndrome beginning in October/November 2013 with her initial onset of neuropathy. In addition, Dr. Lipe posited that the flu vaccine played no role in her development of the condition. 24 Michael Potter, The Early History of Plasma Cell Tumors in Mice, 1954-1976, 98 Advances Cancer Res. 17 (2007). 25 Peter Hofgaard et al., A Novel Mouse Model for Multiple Myeloma (MOPC315.BM) That Allows Noninvasive Spatiotemporal Detection of Osteolytic Disease, 7 PolsOne e51892 (2012). 23  Dr. Lipe obtained her bachelor’s degree from the University of Colorado. Tr. 255; see Resp. Ex. D at 1. Thereafter, she attended medical school at Albany Medical College. Tr. 255. She completed her residency, followed by a fellowship in hematology and oncology at Dartmouth-Hitchcock Medical Center. Id. She then went on to receive a master’s degree in clinical research from the University of Kansas. Tr. 255. Dr. Lipe is board-certified in hematology and internal medicine. Tr. 256. At present, Dr. Lipe serves as an Associate Professor and the Director of Clinical Myeloma at the University of Rochester, where she treats patients suffering from a wide range of plasma cell disorders. Tr. 255-56. She also oversees clinical trials and research on topics including multiple myeloma and monoclonal gammopathies. Tr. 257. As part of her clinical practice, Dr. Lipe estimated that she has diagnosed roughly ten to fifteen patients with POEMS syndrome over the course of her career. Tr. 259. She is also part of a working group with the College of American Pathology that is working to create guidelines for diagnosing monoclonal gammopathies. Tr. 257. Dr. Lipe began by discussing POEMS syndrome and the diagnostic criteria relevant to the condition. Tr. 260. Dr. Lipe defined POEMS syndrome as a hematologic disease of the plasma cells, or a “plasma cell dyscrasia.” Tr. 263, 289; see also Resp. Ex. C at 3. Consistent with the testimony offered by petitioner’s experts, Dr. Lipe cited literature discussing the criteria required for diagnosis, which includes both a polyneuropathy and plasma cell clone or monoclonal gammopathy, and one of the following: VEGF elevation, sclerotic bone lesions, or Castleman’s disease. See Resp. Ex. C, Tab 3 at 2496.26 Other minor criteria can include papilledema, thrombocytosis, skin changes, and organomegaly. Id. Dr. Lipe estimated the frequency of a POEMS diagnosis to be 1 in 330,000. Tr. 261. Based on her clinical experience and review of the medical literature, Dr. Lipe opined that patients with POEMS syndrome typically present with related symptoms nine to sixteen months prior to diagnosis. Tr. 262; see Resp. Ex. C, Tab 4 at 304. The initial onset of symptoms, however, can present acutely, causing rapid deterioration within two weeks at the earliest. Tr. 268. Overall, Dr. Lipe maintained that patients with POEMS syndrome do not present with every possible symptom all at once. Tr. 287. Rather, over time, POEMS patients accumulate more of the features of the syndrome. Id. Dr. Lipe further posited that POEMS syndrome is often times initially misdiagnosed as CIDP or AIDP, conditions similar to GBS. Tr. 260-61, 282, 293; see Resp. Ex. E at 1. For support, Dr. Lipe referenced the Nasu and Dispenzieri articles. Tr. 261. Nasu analyzed over one hundred patients diagnosed with POEMS and CIDP to elucidate the differences in the neuropathy profiles of both diseases. See Resp. Ex. E, Tab 1 at 476. The authors in Nasu reported that sixty percent of POEMS syndrome patients were initially diagnosed with CIDP following an onset of polyneuropathy. Tr. 261; Resp. Ex. E, Tab 1 at 477. Similarly, researchers in Dispenzieri concluded that eighty-five percent of patients with POEMS syndrome were commonly misdiagnosed with AIDP or CIDP. Tr. 261; see Resp. Ex. C, Tab 3. 26 Angela Dispenzieri et al., POEMS Syndrome: Definitions and Long-Term Outcome, 101 Blood 2496 (2003). 24  Dr. Lipe stated that patients who are initially misdiagnosed are not considered to still be suffering from GBS/CIDP/AIDP once the POEMS diagnosis is made. Tr. 261. Indeed, Dr. Lipe reported that she has treated POEMS patients who are misdiagnosed at onset, but none who have distinct GBS/CIDP either consecutively or simultaneous with POEMS. Tr. 262. She also testified that she was not aware of any literature or evidence to suggest the conditions are linked in any way. Id. In so stating, Dr. Lipe offered her own interpretation of the case reports of GBS followed by onset of POEMS submitted by petitioner’s experts. For instance, Dr. Lipe classified the Sojka case report as a classic case of misdiagnosis. Tr. 262. Dr. Lipe next discussed the medical records filed in the present matter in relation to her opinion regarding petitioner’s onset of POEMS syndrome. Tr. 264. Dr. Lipe posited that R.S.’s POEMS presentation was typical compared to those she has treated in the past. Tr. 267. In reference to the medical record, Dr. Lipe stated that petitioner reported to the emergency room initially with thrombocytosis and neuropathy-related symptoms in late November 2013. Tr. 282. Her course thereafter continued to deteriorate over an eight-month period. By July and August 2014, VEGF levels were drawn27 and SPEP testing with immunofixation confirmed the presence of the monoclonal protein. Tr. 284-85. Based on the above, Dr. Lipe did not dispute that R.S. was officially diagnosed with POEMS syndrome in August 2014. Id. She maintained, however, that the diagnosis and biologic onset of the condition are two distinct events. Tr. 281. Given her overall course, Dr. Lipe posited that R.S.’s onset of neuropathy in October/November 2013 constituted the onset of her POEMS syndrome. Tr. 282; Resp. Ex. C at 4. In support, Dr. Lipe cited to medical literature which differentiated between neuropathies associated with POEMS from those with GBS/CIDP. Tr. 283; see, e.g., Resp. Ex. C, Tab 4 at 304. Dr. Lipe posited that POEMS-associated neuropathies are routinely accompanied by pain and edema,28 unlike those attributable to GBS/CIDP. Tr. 284, 293. As Dr. Lipe noted, petitioner’s records documented initial complaints of pain and lower extremity edema during her initial hospitalization in November 2013. Id. Moreover, Dr. Lipe referenced petitioner’s medical visit at the Mayo Clinic, with Dr. Dispenzieri, as supportive evidence of an onset of POEMS disease in October 2013. Tr. 285. Indeed, Dr. Dispenzieri placed onset of petitioner’s POEMS in 2013, at which time she experienced neuropathy-related symptoms, fatigue, and a cherry angioma eruption. Pet. Ex. 19 at 27. As Dr. Lipe recalled, Dr. Dispenzieri did not entertain GBS or CIDP as an alternative or concurrent diagnosis or cause. Id. Given her knowledge of the disease, Dr. Lipe gave Dr. Dispenzieri’s opinion a great deal of weight when formulating her opinion. Id. (“[Dr. Dispenzieri] is probably the world’s expert in diagnosis of POEMS” in the United States.). On redirect examination, Dr. Lipe stated that there is no way to determine how long R.S.’s 27 VEGF was elevated prior to August 2014. Tr. 314. Had the VEGF test been conducted in November 2013, Dr. Lipe speculated that it would have been positive at that time. Tr. 315. 28 Dr. Lipe posited that edema is a postulated mechanism by which POEMS patients develop neuropathy. Tr. 315. 25  Next, Dr. Lipe discussed petitioner’s thrombocytosis diagnosis and its relevance to her condition. Tr. 265-66. In general, Dr. Lipe agreed that thrombocytosis can be a nonspecific finding when taken in isolation. Tr. 266. In R.S.’s case, however, Dr. Lipe attributed her onset of thrombocytosis in November 2013, and overall persistence through August 2014, to POEMS syndrome. Tr. 266. Dr. Lipe posited that transient or reactive-type thrombocytosis would resolve on its own over time. Thrombocytosis attributable to POEMS syndrome, however, would not improve until the patient’s underlying plasma cell disorder was treated. Id. Consistent with the medical records filed herein, Dr. Lipe noted that R.S.’s thrombocytosis did not improve until her physicians definitively treated her for POEMS in 2014. Tr. 266-67; see Resp. Ex. E at 1-2. Dr. Lipe also posited that petitioner’s subsequent development of an abnormal increase in cherry angiomas in mid-2014 was attributable to POEMS syndrome. Tr. 286; see Pet. Ex. 3 at 5, 12, 16. Dr. Lipe acknowledged that petitioner may have had some history of cherry angiomas prior to her onset of the disease, which she deemed unrelated to the condition. Tr. 286-88. The increase to two angiomas in April 2014 and seven in May 2014, however, would be consistent with angiomas related to POEMS syndrome. Tr. 287-88. Consistent with the testimony offered by petitioner’s experts, Dr. Lipe opined that cranial nerve involvement or facial nerve involvement (i.e., drooling) is not typically seen in POEMS syndrome. Tr. 267. Dr. Lipe could not recall treating a patient with facial nerve symptoms specifically. Id. In her own clinical practice, Dr. Lipe stated that she has treated POEMS patients who experienced pulmonary and swallowing difficulties. Tr. 267. Based on her clinical experience, Dr. Lipe posited that petitioner’s initial respiratory complaints were best attributable to POEMS syndrome. Tr. 267. She could not, however, definitively relate petitioner’s drooling to POEMS given the lack of support relating facial nerve symptoms to the condition. Id. Dr. Lipe next offered her interpretation of petitioner’s SPEP testing over the course of her illness. Tr. 268. As discussed by petitioner’s experts on direct examination, R.S.’s initial SPEP testing from November 2013 was negative for M-protein. Tr. 268. As Dr. Lipe noted, however, the initial test did not include immunofixation, the method by which the M-protein could be detected, meaning there was no way of knowing if she had a monoclonal gammopathy at that time. Tr. 268-69. R.S.’s subsequent SPEP in February 2014, which was conducted with immunofixation, confirmed the presence of monoclonal protein. Tr. 269. Given that the 2013 SPEP test was conducted without immunofixation, Dr. Lipe acknowledged that she could not say for certain if petitioner would have tested positive for monoclonal protein at that time. Tr. 269. She suspected, however, that if the immunofixation had been conducted, it likely would have been positive. Tr. 271. Moreover, Dr. Lipe opined that petitioner’s November 2013 SPEP test revealed an abnormal beta peak. Tr. 270; see Pet. Ex. 5 at 770-71. Dr. Lipe acknowledged that petitioner’s treaters documented the testing as normal, but she interpreted the abnormal beta spike as a cause for concern. Tr. 270, 305; see Resp. Ex. C, Tab 9 at 106.29 Theodore O’Connell et al., Understanding and Interpreting Serum Protein Electrophoresis, 71 29 Am. Fam. Physician 105 (2005). 26  Dr. Lipe next discussed petitioner’s initial response to IVIG treatment. Tr. 264. Based on her review of the relevant literature, Dr. Lipe agreed that the majority of patients with POEMS syndrome do not respond well to IVIG therapy. Id. She noted, however, that there are case reports where patients do respond to IVIG. Id. In addition, Dr. Lipe posited that the underlying neuropathy associated with POEMS is traditionally treated with IVIG, thus many patients can experience an improvement of symptoms initially. Id. In R.S.’s case, Dr. Lipe agreed that the IVIG therapy she received in late November 2013 and continuing through early 2014 resulted in some benefit to her condition. Tr. 294. Overall, however, Dr. Lipe posited that petitioner’s health continued to deteriorate and her physical exams did not improve to the same degree following subsequent treatment. Id. In her view, the fundamental biology of her disease did not change based on the treatment course. Id. Along those same lines, Dr. Lipe opined that petitioner’s initial treatment with Solu- medrol could have played some role in her resolution of symptoms following her first hospital admission. Tr. 264, 294; Resp. Ex. E at 2. Dr. Lipe referenced the Dispenzieri article in support, which indicated that fifty percent of patients with POEMS syndrome respond to steroid therapy. Tr. 265, 296; see Resp. Ex. C, Tab 3 at 2501. Dr. Lipe acknowledged that R.S.’s initial improvement was attributed to IVIG, though she felt that it was possible that the Solu-medrol played a relevant part in her initial improvement. Tr. 265. Moreover, Dr. Lipe noted that petitioner did not receive steroid treatment during her second and third hospitalizations at which time her response to treatment was less robust. Id. Moving forward, Dr. Lipe commented on the medical theory of causation proffered by petitioner’s experts. Given her understanding of plasma cell biology, Dr. Lipe firmly disagreed that chronic immune stimulation is an accepted pathogenic mechanism for the development of plasma cell dyscrasia. Tr. 271, 277; see Resp. Ex. C at 6-7; Resp. Ex. E at 3-4. She knew of no medical literature or case reports supporting petitioner’s theory that immune stimulation occurring secondarily due to GBS or CIDP could cause POEMS. Tr. 272. Overall, Dr. Lipe posited that the literature submitted by petitioner in support of her theory focused heavily on conditions distinguishable from POEMS. The Lindqvist paper, for example, analyzed 5,403 patients with monoclonal gammopathy of unknown significance and multiple myeloma (compared to 21,209 controls) to determine if autoimmune diseases increase the risk of developing either condition. Tr. 273-75. Dr. Lipe gave little weight to the Lindqvist paper due to its structure. Tr. 273 (“epidemiologic studies, particularly MGUS, the way this was done, is particularly problematic”), 298-99. As she explained, monoclonal gammopathies of unknown significance are asymptomatic; thus, they are only detected once some other disease process has triggered adverse symptoms. Id. In her review of Lindqvist, Dr. Lipe noted that selection criteria for the study was limited to monoclonal gammopathy of unknown significance only, and did not account for any underlying disease process the patients might have experienced contemporaneously. Dr. Lipe otherwise categorized any association between monoclonal gammopathy and GBS to be too speculative. Tr. 275. In support, Dr. Lipe again referenced the Lindqvist study. Based on their findings, the Lindqvist authors reported that six patients with monoclonal 27 gammopathy had concurrent GBS out of roughly 26,000 total case test participants. Tr. 275. Dr. Lipe agreed that the Lindqvist article reported an elevated odds ratio of GBS in MGUS patients, but she maintained that such a small number does not suggest evidence of pathogenesis regarding monoclonal gammopathies. Tr. 276, 297. Moreover, Dr. Lipe critiqued the study for aggregating results. Tr. 276-77. As she explained, the study broadly concludes that autoimmune diseases are associated pathologically with monoclonal gammopathies based on multiple different conditions. Id. In her view, articles like Lindqvist, McShane, Soderberg, and Shimanovsky (see Pet. Ex. 31, Tab V),30 amount to low statistical significance. Tr. 276-77, 298- 301. Similarly, Dr. Lipe attributed little weight to the mouse model evidence offered by petitioner’s experts to support their chronic immune stimulation theory. Tr. 277. Dr. Lipe posited that the mouse model experimentation, as it relates to monoclonal gammopathies and multiple myeloma, offered by petitioner does not prove that immune stimulation can cause plasma cell dyscrasia. Tr. 278. Dr. Lipe explained that monoclonal gammopathies and myeloma do not occur naturally in mice. Tr. 277-78. Thus, mice populations used in myeloma studies have been repeatedly inbred, resulting in internal genetic manipulation. Tr. 278. Based on her review of the studies submitted, Dr. Lipe could not agree that lipid stimulation in mice and a resulting production of plasma cells supports a conclusion that immune stimulation can cause myeloma in humans. Tr. 278. Dr. Lipe also critiqued petitioner’s attempt to relate literature discussing Gaucher’s disease and onset of monoclonal gammopathies to plasma cell dyscrasia induced by chronic immune stimulation. Tr. 279. Dr. Lipe agreed with the underlying biology presented in Nair as explained by petitioner’s experts to show how plasma cells develop in response to foreign antigens. Tr. 279. As discussed in Nair, researchers studied the capacity of certain lysolipids to mediate B-cell activation and serve as antigenic targets in Gaucher’s-associated monoclonal gammopathies. Pet. Ex. 61 at 555, 560. Dr. Lipe found the paper to be helpful in assessing how best to treat gammopathies associated with the disease. Tr. 279-81. As she explained, lysolipids associated with Gaucher’s are abnormal proteins produced by abnormal cells. Dr. Lipe thus stressed that a target antigen is not always pathogenic or causative, meaning that targets as referenced in Nair could more be symptom-like, occurring as a result of some other mechanism related to the disease process, but treatable in the long term. Tr. 280. Based on her own review of the article, Dr. Lipe could not conclude that antigen stimulation could cause a plasma cell mutation. Tr. 281. When questioned further regarding her own understanding of POEMS syndrome and its pathogenesis, Dr. Lipe stated that she could not identify a specific causal mechanism given the state of the research at present. Tr. 290. Dr. Lipe opined that many researchers believe that proinflammatory cytokines, IL-1, IL-6, and VEGF in particular, could play some role in the 30 The authors in Shimanovsky reported that patients with preexisting autoimmune conditions have a higher prevalence of monoclonal gammopathy of undetermined significance and multiple myeloma. Alexei Shimanovsky et al., Autoimmune Manifestations in Patients with Multiple Myeloma and Monoclonal Gammopathy of Undetermined Significance, 6 BBA Clinical 12, 12 (2012). 28 condition’s development. Tr. 290, 301, 304. For instance, Dr. Lipe referenced the Gherardi article, which discussed the significance of IL-6 and its relationship to VEGF. Tr. 302-03; see Resp. Ex. C, Tab 1 at 1458.31 In her review of Gherardi, Dr. Lipe agreed that IL-6 has been shown to be elevated in plasma cell dyscrasias, but she maintained that researchers do not known what role, if any, the elevation plays in the context of inflammatory diseases or plasma cell disorders. Tr. 303-04. iv. Dennis Bourdette, M.D. Respondent’s second expert was Dr. Dennis Bourdette. He prepared one expert report and testified on behalf of respondent at the entitlement hearing. Tr. 88; see Resp. Ex. A. Consistent with Dr. Lipe, Dr. Bourdette proposed that R.S. was properly diagnosed with POEMS syndrome with onset in October/November 2013. In so stating, he refuted petitioner’s assertion that she developed distinct GBS/CIDP in November, followed by POEMS syndrome the subsequent year. He opined that the flu vaccine petitioner received was unrelated to her diagnosis. Tr. 93. Dr. Bourdette obtained his medical degree from the University of California at Davis. Tr. 89; see Resp. Ex. B at 1. He completed his internship at Santa Clara Valley Medical Center, followed by a three-year neurology residency at the VA Medical Center affiliated with Oregon Health and Science University (“OHSU”). Tr. 89. Dr. Bourdette is board-certified in neurology and holds an active medical license in Oregon. Id. He also currently serves as an article reviewer for the American Academy of Neurology’s main publication, Neurology, as well as other sub-journals, including Neuroimmunology and Neuroinfection. Tr. 90. Dr. Bourdette has published over 200 peer-reviewed papers. Tr. 91. At present, Dr. Bourdette serves as the Chairman of the Department of Neurology at Oregon Health and Science University. Tr. 89. He also directs the OHSU Multiple Sclerosis Center and Neuroimmunology Clinic. Id. In his clinical practice, he treats patients with various neuroimmunological conditions twice per week. Id. His current treatment specialty is Multiple Sclerosis. Id. at 90, 111.32 Dr. Bourdette has also treated patients with GBS and CIDP over the course of his career. Tr. 90, 92. In addition, Dr. Bourdette testified that he has diagnosed at least one patient with POEMS syndrome. Tr. 91, 116-17. Over the years, he has also consulted on POEMS cases. Tr. 91. Generally, Dr. Bourdette’s testimony was consistent with Dr. Lipe’s, although Dr. Bourdette’s opinion focused largely on the debate regarding the proper onset of R.S.’s POEMS symptoms and any precursor illness she may have experienced. Based on his review of the accepted clinical criteria for POEMS syndrome, Dr. Bourdette agreed that petitioner was not officially diagnosed with the disease until early August 2014. Tr. 126-28. Based on his review 31 Romain K. Gherardi et al., Overproduction of Proinflammatory Cytokines Imbalanced by Their Antagonists in POEMS Syndrome, 87 Blood 1458 (1996). 32 On cross examination, Dr. Bourdette acknowledged that he does not specialize in peripheral neuropathies. Tr. 111. 29 of the medical record, however, Dr. Bourdette opined that petitioner’s subacute inflammatory neuropathy, which was originally diagnosed as idiopathic GBS, was her first manifestation of POEMS syndrome.33 Tr. 94-95, 124, 135, 137; Resp. Ex. A at 3-4. Based on his understanding of the literature, Dr. Bourdette posited that neuropathies associated with POEMS syndrome can present in both a rapidly progressive or slowly progressive manner. Tr. 116-18. In support of his opinion, Dr. Bourdette cited to case reports of patients with established POEMS syndrome, or within a few weeks or months of a neuropathy clearly had POEMS which was considered to be GBS-like at onset. Tr. 95, 129-31; see, e.g., Resp. Ex. A, Tab 10; Resp. Ex. A, Tab 4; Resp. Ex. A, Tab 1.34 In addition, Dr. Bourdette also cited to petitioner’s various treatment records which analyzed her course retrospectively and placed onset of her illness in October/November 2013. Tr. 110. Following her POEMS diagnosis, Dr. Bourdette recalled that petitioner presented for an evaluation at the Mayo Clinic with Dr. Dispenzieri, a physician he deemed to be the world’s leading expert in POEMS. Id.; see Pet. Ex. 19 at 27. Consistent with his review of petitioner’s clinical course, Dr. Dispenzieri clearly attributed petitioner’s 2013 neuropathy to POEMS. Tr. 110. Dr. Bourdette took issue with petitioner’s assertion that she suffered from acute GBS in November 2013, which then evolved into CIDP thereafter. Tr. 95, 118-19. He posited that CIDP can present in a variety of ways, including with an initial episode that looks like GBS initially, followed by a relapse of symptoms. Tr. 95-96, 132. Had petitioner not been diagnosed with POEMS syndrome, Dr. Bourdette stated that he would have diagnosed her with CIDP in retrospect, not acute GBS, given the she had an initial neuropathy with sequelae persisting for over two months. Tr. 96, 123-24. Consistent with Dr. Lipe’s testimony, Dr. Bourdette agreed that POEMS syndrome can often be misdiagnosed as CIDP given the similarities in the presenting neurological symptoms. Tr. 98, 103, 118. Dr. Bourdette also maintained that he knew of no reports of patients experiencing preexisting GBS/CIDP as a precursory illness, or concurrent CIDP, and POEMS. Tr. 129-31, 132-33, 134-35. In so stating, he refuted petitioner’s assertion that the case report evidence filed in this case suggests that a POEMS patient can experience distinct GBS/CIDP prior to onset. Tr. 133-34; see, e.g., Pet. Ex. 29, Tab Q. Dr. Bourdette interpreted these case reports to conclude that POEMS symptoms can manifest with GBS or CIDP-like presentations, but he maintained that the authors clearly determined the early neurological symptoms were indicative of a POEMS diagnosis in retrospect. Tr. 134-35. Dr. Bourdette posited that POEMS syndrome can also manifest as respiratory issues or lower cranial nerve dysfunction. Tr. 98-99. In support, Dr. Bourdette referenced the Allam 33 Dr. Bourdette relied on the Dispenzieri study to establish the accepted diagnostic criteria for POEMS. Tr. 125-26; see Pet. Ex. 31, Tab C. 34 A. Abbas et al., A Case of POEMS Mimicking a Guillain-Barré Like Syndrome, 369 J. Neurol. Sci. 268 (2016). 30 article. Tr. 99-100; see Resp. Ex. H.35 The authors in Allam conducted a symptom review of patients diagnosed with POEMS and found that roughly one third exhibited restrictive pulmonary function. Tr. 99. Five percent of patients were noted to have pulmonary issues secondary to the related neuropathy. Id. Furthermore, Dr. Bourdette cited to case report evidence indicating that speaking difficulties and issues with the lower cranial nerve can be attributable to POEMS. Tr. 100. In his review of the medical record, Dr. Bourdette noted that petitioner experienced symptoms consistent with shortness of breath and voice irregularities/difficulty speaking at her initial hospital presentation in November 2013. Tr. 98-99. Dr. Bourdette categorized petitioner’s respiratory problems as related to phrenic nerve dysfunction, while the voice symptoms were likely due to swallowing issues. Tr. 99. The instances of drooling noted in the record, Dr. Bourdette admitted, could be indicative of facial paralysis, but he maintained that those symptoms were likely attributable to swallowing difficulties as well. Id.36 Dr. Bourdette posited that the lack of specificity in the contemporaneous record made it difficult to determine how petitioner’s early treaters characterized the drooling abnormality. Tr. 99. Dr. Bourdette also attributed petitioner’s early diagnosis of thrombocytosis in November 2013 to be related to POEMS. Tr. 104, 119-20, 136-37; Resp. Ex. A at 4. In support, he referenced literature categorizing thrombocytosis as a minor criteria of the disease. Tr. 104. As Dr. Bourdette recalled, R.S. presented with elevated platelets counts at her initial hospital presentation in 2013, which persisted through August 2014 when she was diagnosed with POEMS. Tr. 104-05. Based on his review of the contemporaneous record, Dr. Bourdette posited that R.S.’s platelet levels did not return to normal until she was treated for POEMS syndrome. Tr. 104. He otherwise relied heavily on the opinion of petitioner’s treating hematologists who related the thrombocytosis to an onset of POEMS syndrome in November 2013 around the time she also developed the neuropathy. Tr. 104-05. From a neurological standpoint, Dr. Bourdette opined that persistent thrombocytosis is not indicative of GBS. Tr. 105. He acknowledged that patients with GBS could have an initial rise in platelets levels during the acute phase of the disease, but any chronic platelet elevation would indicate a hematological problem. Id. Consistent with Dr. Lipe, Dr. Bourdette opined that POEMS can also be associated with an increase in cherry angiomas. Tr. 105-06; Resp. Ex. A at 4-5. Dr. Bourdette recalled that at least one of petitioner’s treaters reported that she experienced a significant increase in cherry angiomas as a part of her POEMS syndrome clinical course. Tr. 106. Based on his review of the medical record, however, Dr. Bourdette could not say for certain if the increases reported were 35 Joanne Allam et al., Pulmonary Manifestations in Patients with POEMS Syndrome, 133 Chest 969 (2008). 36 On cross examination, Dr. Bourdette maintained that petitioner’s records did not include persuasive evidence of complaints relating to lower facial numbness. Tr. 112-13; see Pet. Ex. 7 at 51. Dr. Bourdette explained that the numbness complaints in the record were reported by a nurse (at some point after her ER evaluation). Tr. 114. Based on his review of earlier records, he could not determine which treatment record confirmed this notation. Id. 31 well documented. Id. He also agreed with the testimony offered by Dr. Latov, characterizing cherry angiomas as common in the general population. Id. Regardless, Dr. Bourdette posited that the evidence of persistent thrombocytosis and the initial neuropathy were enough to establish an onset of POEMS in November 2013. Id. Given petitioner’s strong reliance on her initial improvement with IVIG treatment to establish that her neuropathy-related symptoms were indicative of GBS at onset, Dr. Bourdette spent some time discussing petitioner’s treatment in the context of her overall course. Tr. 96. Dr. Bourdette acknowledged that petitioner had robust improvement following IVIG therapy during her first hospital admission.37 Tr. 96, 115. Thereafter, she relapsed and received additional rounds of IVIG without the same robust improvement. Tr. 96. After a third treatment, Dr. Bourdette posited that petitioner’s response was less improved, so overall, her symptoms clearly worsened over that period of time. Tr. 96-97, 115-16. In addition, Dr. Bourdette explained that the medical literature on POEMS syndrome indicates that patients with POEMS can experience a transient improvement of symptoms following IVIG treatment. Tr. 97; Resp. Ex. A at 7; see Resp. Ex. A, Tab 10; Resp. Ex. A, Tab 1. He acknowledged, however, that it is well-accepted that IVIG is not a good or effective treatment for POEMS. Tr. 97, 116. Dr. Bourdette stated that he had not personally treated any POEMS patients with IVIG. Tr. 117. Even so, Dr. Bourdette did not accept this finding to be persuasive in establishing that R.S. had GBS at the onset of her illness especially when taken into context with her worsening course and eventual diagnosis. Tr. 97. Dr. Bourdette next discussed the significance of petitioner’s SPEP testing conducted over the course of her illness and its significance in determining the onset of POEMS. Tr. 100-03, 107-08. Consistent with Dr. Lipe and petitioner’s experts, Dr. Bourdette recalled that R.S.’s SPEP test in November 2013, which was conducted without immunofixation, was interpreted as normal. Tr. 100, 121. The SPEP with immunofixation was not conducted until February 2014. Had the immunofixation and VEGF tests been conducted closer-in-time to her manifestation of neuropathy symptoms, Dr. Bourdette speculated that her contemporaneous treaters likely would have made the diagnosis of POEMS sooner. Tr. 107-08. Dr. Bourdette otherwise deferred to Dr. Lipe regarding the significance of the beta peak spikes seen in the her earlier SPEP tests and what those could have indicated at that time. Id. Moving forward, Dr. Bourdette commented briefly on petitioner’s medical theory of causation. Tr. 108. Consistent with Dr. Lipe, Dr. Bourdette stated that he knew of no literature linking vaccinations with POEMS syndrome or monoclonal gammopathies. Tr. 108-09; Resp. Ex. A at 6-7. Dr. Bourdette also knew of no case reports or literature suggesting that GBS/CIDP or the secondary immune stimulation produced as a result could cause POEMS with or without a preceding vaccination. Tr. 109, 138. Given the lack of supportive scientific literature associating GBS/CIDP with POEMS syndrome, Dr. Bourdette posited that petitioner’s theory regarding vaccine causation was not well-supported. Tr. 109, 137-38. He otherwise did not dispute petitioner’s assertion that the flu vaccine can cause GBS. Tr. 121, 124-25. 37 Dr. Bourdette also noted that petitioner received pain medication and physical therapy around this time, which could have played some role in her overall improvement. Tr. 135-36. 32  Dr. Bourdette deferred to Dr. Lipe on multiple topics related to plasma cell dyscrasias and the origins of monoclonal gammopathies. Tr. 121-22. On cross examination, he offered some further comments regarding the role of proinflammatory cytokines in the pathogenesis of POEMS syndrome. Tr. 122. Dr. Bourdette agreed that the relevant literature filed in this matter suggests that the proinflammatory cytokines have shown to be elevated in POEMS patients. Id. He posited that the IL-6 variant, specifically, can stimulate VEGF. Id. Even so, Dr. Bourdette maintained that cytokines have not been deemed a causal mechanism for POEMS. Tr. 123. In his view, speculation regarding the role of cytokines in the development of POEMS stems from the recognition that VEGF responds quite easily to therapy. Id. VI. DISCUSSION A. Legal Framework The Vaccine Act was established to compensate vaccine-related injuries and deaths. § 10(a). “Congress designed the Vaccine Program to supplement the state law civil tort system as a simple, fair and expeditious means for compensating vaccine-related injured persons. The Program was established to award ‘vaccine-injured persons quickly, easily, and with certainty and generosity.’” Rooks v. Sec’y of Health & Human Servs., 35 Fed. Cl. 1, 7 (1996) (quoting H.R. Rep. No. 908 at 3, reprinted in 1986 U.S.C.C.A.N. at 6287, 6344). Petitioner’s burden of proof is by a preponderance of the evidence. § 13(a)(1). The preponderance standard requires a petitioner to demonstrate that it is more likely than not that the vaccine at issue caused the injury. Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010). In particular, petitioner must prove that that the vaccine was “not only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.” Id. at 1321 (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). A petitioner who satisfies this burden is entitled to compensation unless respondent can prove, by a preponderance of the evidence, that the vaccinee’s injury is “due to factors unrelated to the administration of the vaccine.” § 13(a)(1)(B). i. Causation To receive compensation under the Program, petitioner must prove either: (1) that she suffered a “Table Injury”—i.e., an injury listed on the Vaccine Injury Table—corresponding to a vaccine that he received, or (2) that she suffered an injury that was caused by a vaccination. See §§ 13(a)(1)(A) and 11(c)(1); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1319-20 (Fed. Cir. 2006). Petitioner must show that the vaccine was “not only a but-for cause of the injury but also a substantial factor in bringing about the injury.” Moberly, 592 F.3d at 1321 (quoting Shyface, 165 F.3d at 1352-53). Because petitioner does not allege that she suffered a Table injury, she must prove that the vaccine caused her illness. To do so, she must establish, by preponderant evidence: (1) a medical theory causally connecting the vaccine and his injury (“Althen Prong One”); (2) a logical sequence of cause and effect showing that the vaccine was the reason for her injury 33 (“Althen Prong Two”); and (3) a showing of a proximate temporal relationship between the vaccine and his injury (“Althen Prong Three”). § 13(a)(1); Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). The causation theory must relate to the injury alleged. Thus, petitioner must provide a reputable medical or scientific explanation for her theory, although the explanation need only be “legally probable, not medically or scientifically certain,” it must be “sound and reliable.” Boatman v. Sec’y of Health & Human Servs., 941 F.3d 1351, 1360 (Fed. Cir. 2019); Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548-49 (Fed. Cir. 1994). Petitioner cannot establish entitlement to compensation based solely on assertions. Rather, a vaccine claim must be supported either by medical records or by the opinion of a medical doctor. § 13(a)(1). In determining whether petitioner is entitled to compensation, the special master shall consider all material contained in the record, including “any . . . conclusion, [or] medical judgment . . . which is contained in the record regarding . . . causation.” § 13(b)(1)(A). The undersigned must weigh the submitted evidence and the testimony of the parties’ offered experts and rule in petitioner’s favor when the evidence weighs in his favor. See Moberly, 592 F.3d at 1325-26 (“[f]inders of fact are entitled—indeed, expected—to make determinations as to the reliability of the evidence presented to them and, if appropriate, as to the credibility of the persons presenting that evidence”); Althen, 418 F.3d at 1280 (noting that “close calls” are resolved in petitioner’s favor). ii. Law Governing Analysis of Fact Evidence The process for making determinations in Vaccine Program cases regarding factual issues begins with consideration of the medical records. § 11(c)(2). The special master is required to consider “all [] relevant medical and scientific evidence contained in the record,” including “any diagnosis, conclusion, medical judgment, or autopsy or coroner's report which is contained in the record regarding the nature, causation, and aggravation of the petitioner's illness, disability, injury, condition, or death,” as well as “the results of any diagnostic or evaluative test which are contained in the record and the summaries and conclusions.” § 13(b)(1)(A). The special master is then required to weigh the evidence presented, including contemporaneous medical records and testimony. See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (it is within the special master’s discretion to determine whether to afford greater weight to contemporaneous medical records than to other evidence, such as oral testimony surrounding the events in question that was given at a later date, provided that such a determination is evidenced by a rational determination). Medical records that are created contemporaneously with the events they describe are presumed to be accurate and “complete” (i.e., presenting all relevant information on a patient's health problems). Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993); Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl. 598, 608 (2010) (“[g]iven the inconsistencies between petitioner's testimony and his contemporaneous medical records, the special master’s decision to rely on petitioner's medical records was rational and consistent with applicable law”); Rickett v. Sec’y of Health & Human Servs., 468 F. App’x 952 (Fed. Cir. 2011) (non-precedential opinion). This presumption is based on the linked propositions that (i) sick people visit medical professionals; (ii) sick people honestly report their health problems to those professionals; and (iii) medical professionals record what they are told or observe when 34 examining their patients in as accurate a manner as possible, so that they are aware of enough relevant facts to make appropriate treatment decisions. Sanchez v. Sec’y of Health & Human Servs., No. 11-685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr. Apr. 10, 2013); Cucuras v. Sec’y of Health & Human Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993). Accordingly, if the medical records are clear, consistent, and complete, then they should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical records are generally found to be deserving of greater evidentiary weight than oral testimony— especially where such testimony conflicts with the record evidence. Cucuras, 993 F.2d at 1528; see also Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1947) (“[i]t has generally been held that oral testimony which is in conflict with contemporaneous documents is entitled to little evidentiary weight”)), aff’d, 968 F.2d 1226 (Fed. Cir. 1992). However, there are situations in which compelling oral testimony may be more persuasive than written records, such as where records are deemed to be incomplete or inaccurate. Campbell v. Sec’y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006) (“like any norm based upon common sense and experience, this rule should not be treated as an absolute and must yield where the factual predicates for its application are weak or lacking”); Lowrie, 2005 WL 6117475, at *19 (“[w]ritten records which are, themselves, inconsistent, should be accorded less deference than those which are internally consistent”) (quoting Murphy, 23 Cl. Ct. at 733)). Ultimately, a determination regarding a witness’s credibility is needed when determining the weight that such testimony should be afforded. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). iii. Evaluation of Expert Testimony Another important aspect of the causation-in-fact case law under the Vaccine Act concerns the factors that a special master may consider in evaluating the reliability of expert testimony and other scientific evidence. In Daubert v. Merrell Dow Pharm., Inc., the Supreme Court listed certain factors that federal trial courts should utilize in evaluating proposed expert testimony concerning scientific issues. 509 U.S. 579 (1993). In Terran v. Sec’y of Health & Human Servs., the Federal Circuit ruled that it is appropriate for special masters to utilize the Daubert factors as a framework for evaluating the reliability of causation-in-fact theories presented in Program cases. 195 F.3d 1302, 1316 (Fed. Cir. 1999). Daubert instructs fact-finders to consider “(1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error and whether there are standards for controlling the error; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community.” Terran, 195 F.3d at 1316 n.2 (citing Daubert, 509 U.S. at 592-95). In addition, where both sides offer expert testimony, a special master’s decision may be “based on the credibility of the experts and the relative persuasiveness 35 of their competing theories.” Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (citing Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1362 (Fed. Cir. 2000)). However, nothing requires the acceptance of an expert’s conclusion “connected to existing data only by the ipse dixit of the expert,” especially if “there is simply too great an analytical gap between the data and the opinion proffered.” Snyder v. Sec’y of Health & Human Servs., 88 Fed. Cl. 706, 743 (2009) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). A treating physician’s opinions are considered “quite probative,” as treating physicians are in the “best position” to evaluate the vaccinee’s condition. Capizzano, 440 F.3d at 1326. However, no treating physician’s views bind the special master, per se; rather, their views should be carefully considered and evaluated. § 13(b)(1); Snyder, 88 Fed. Cl. at 745 n.67. Each opinion from a treating physician should be weighed against other, contrary evidence present in the record – including conflicting opinions from other treating physicians. Hibbard v. Sec’y of Health & Human Servs., 100 Fed. Cl. 742, 749 (Fed. Cl. 2011), aff’d, 698 F.3d 1355 (Fed. Cir. 2012); Caves v. Sec’y of Health & Human Servs., 100 Fed. Cl. 119, 136 (Fed. Cl. 2011), aff’d, 463 F. App’x 932 (Fed. Cir. 2012); Veryzer v. Sec’y of Health & Human Servs., No. 06-522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011), aff’d, 100 Fed. Cl. 344 (2011). iv. Consideration of Medical Literature Both parties filed medical and scientific literature in this case, including some articles that do not weigh heavily on the outcome herein. The undersigned has reviewed and considered all of the medical literature submitted in this case, though the undersigned only discusses those articles that are most relevant to entitlement and/or are central to petitioner’s case – just as the undersigned has not exhaustively discussed every individual medical record filed. Moriarty v. Sec’y of Health & Human Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016) (“[w]e generally presume that a special master considered the relevant record evidence even though he does not explicitly reference such evidence in his decision”) (citation omitted)); see also Paterek v. Sec’y of Health & Human Servs., 527 F. App’x 875, 884 (Fed. Cir. 2013) (“[f]inding certain information not relevant does not lead to—and likely undermines—the conclusion that it was not considered”). B. Analysis i. The Evidence Supports a POEMS Diagnosis with Onset in November 2013. Although the parties agree that petitioner was appropriately diagnosed with POEMS syndrome, they firmly dispute the onset of the condition, as well as the appropriate diagnosis for her neuropathy-related symptoms in October and November 2013. Both sides devoted time at hearing to addressing whether vaccine-induced GBS could be shown to cause POEMS syndrome. The medical records in this case, however, suggest a more pertinent question: whether petitioner had GBS at all. The medical theory of causation proffered by petitioner hinges on the undersigned finding that her neuropathy-related symptoms in October and November 2013 are attributable to a GBS diagnosis, not POEMS. Therefore, if petitioner did not suffer from GBS at the outset, then her claim cannot succeed. 36  As Federal Circuit precedent establishes, in certain cases it is appropriate to determine the nature of a petitioner’s injury before engaging in the Althen analysis. Broekelschen, 618 F.3d at 1346. Since “each prong of the Althen test is decided relative to the injury[,]” determining facts relating to the claimed injury can be significant in a case like this, where the petitioner has an evolving course of symptoms, resulting in a changed diagnosis. Id. Thus, before determining if petitioner has met each prong of Althen, the undersigned addresses whether she has established, by a preponderance of the evidence, that she suffered from GBS as a precursor illness to her later-diagnosed POEMS syndrome. It is indisputable that petitioner’s treaters considered both GBS and CIDP diagnoses over the course of her illness and followed the appropriate treatment protocol for both diseases. See, e.g., Pet. Ex. 7 at 54-55; Pet. Ex. 5 at 63-66, 681. The experts in this matter agreed that GBS and POEMS syndrome are distinct conditions, consistent with the descriptions outlined above. They differed, however, on the interpretation of petitioner’s initial neuropathy-related symptoms in October 2013 as attributable to GBS or POEMS. Although there is earlier-in-time evidence in the medical records interpreting petitioner’s course as GBS, and CIDP thereafter, those records by themselves, viewed in retrospect, suggest that petitioner more likely than not suffered from POEMS syndrome at the outset, rather than GBS or CIDP. The medical records establish that petitioner began experiencing neuropathy-related symptoms in October and November 2013, initially thought to be indicative of GBS. See, e.g., Pet. Ex. 7 at 54-55; Pet. Ex. 5 at 681. Even after treatment in the months thereafter, however, petitioner experienced multiple relapses in her symptoms causing her treaters to suspect she may have CIDP. Her symptoms remained persistent through 2014, despite receiving treatment for presumed GBS and later CIDP, a fact Dr. Lipe noted and relied upon in opining that petitioner likely had POEMS syndrome from the early stages. Because GBS/CIDP and POEMS can be confused in their initial presentations, it is not surprising that the treating physicians who first saw petitioner in late 2013 reached different conclusions from those treating her later, in August 2014. Laboratory testing, followed by an alteration of petitioner’s treatment, also strongly supports the POEMS diagnosis. By August 2014, the fact that her symptoms, including neuropathy-related sequelae and thrombocytosis had still not fully cleared, and now included additional symptoms, such papilledema, prompted treaters to test petitioner for elevated serum VEGF based on her persistent neuropathic symptoms and positive SPEP testing. The medical literature strongly associates high-dose melphalan, cyclophosphamide, and stem cell transplantation with the successful treatment of POEMS. See, e.g., Pet. Ex. 29, Tab F at 219-20. Petitioner improved thereafter following similar treatment. Pet. Ex. 18 at 385-93; Pet. Ex. 19 at 27. As noted earlier, petitioner objects to the POEMS diagnosis made in October/November 2013. Her experts seemingly posit that greater weight should be given to the views of her early- in-time treating physicians who made the initial GBS/CIDP diagnoses, despite the fact that petitioner’s later-in-time treatment evaluations took into account her persistent and evolving symptoms. Indeed, petitioner’s early treaters reached immediate conclusions about the nature of 37 petitioner’s neuropathy-related symptoms without the benefit of the evidence Drs. Yee, Fogerty, and Dispenzieri later relied on, including the laboratory tests, altered treatment, and persistent/new onset of symptoms. There is no evidence in the record suggesting that any other treating physicians who saw petitioner after the POEMS diagnosis was established disagreed with the conclusions regarding her ultimate diagnosis, or posited that any precursor illness, like GBS, was appropriate. The undersigned finds that Dr. Lipe’s interpretation of the above-referenced records regarding disease onset and progression was ultimately more persuasive. Dr. Lipe based her opinion on a complete review of the record in light of petitioner’s entire course. Having treated multiple POEMS patients, she observed that a patient may experience neuropathy-related symptoms long before they are actually diagnosed with POEMS and even before such a diagnosis might be proper based on the diagnostic criteria. Tr. 268-67. Because of the chronic nature of their symptoms, POEMS patients are routinely misdiagnosed with conditions similar to GBS, including AIDP and CIDP. Tr. 260-61, 282, 293. Given the above, Dr. Lipe distinguished petitioner’s initial neuropathy, including pain and edema, and persistent thrombocytosis as best attributable to POEMS in light of later records indicating the presence of monoclonal gammopathy, an increase in cherry angiomas, and elevated serum VEGF. Tr. 265-66, 284, 293. She posited that early examinations and test results did not display all of the formal criteria for the condition at onset which is typical based on the literature discussing its progression over time. See, e.g., Pet. Ex. 29, Tab Q; Resp. Ex. A, Tab 6. Dr. Lipe was also more persuasive in identifying inconsistencies in petitioner’s history that prolonged the initial POEMS syndrome diagnosis. Through her reading of petitioner’s contemporaneous SPEP test results, she pointed out that early symptoms and testing actually supported a suspicion for a POEMS diagnosis prior to the date documented in the record—the beta spikes, for example, evident from petitioner’s November 2013 SPEP test (see Pet. Ex. 5 at 770-71) were abnormal in her view. Tr. 268, 271. Dr. Lipe felt these spikes were likely concerning evidence of an underlying plasma cell disorder. Moreover, she explained that petitioner’s initial treatment with IVIG therapy likely resulted in some positive improvement to her neuropathy-related symptoms in the early stages given it is the preferred treatment for the condition. Tr. 264, 295. All in all, however, petitioner’s response to IVIG became less robust over time with no eventual resolution, as the medical record indicates. Dr. Lipe also pointed out that petitioner received steroid treatment during her multiple hospital stays, which could have resulted in additional improvement. In response, petitioner’s experts failed to establish a reasonable explanation for petitioner’s course in light of her complete medical history. They placed too much emphasis on petitioner’s earlier-in-time records and treatment responses, indicating that petitioner likely had GBS/CIDP. Indeed, petitioner’s later-in-time treaters had the benefit of reviewing the additional evidence regarding petitioner’s condition, for example, SPEP with immunofixation confirming the existence of monoclonal gammopathy and confirmed elevated serum VEGF levels. Drs. Latov and Parekh generally found more significant the initial GBS/CIDP diagnoses and the IVIG treatment she received thereafter without explaining the subsequent changes in her course and overall improvement following treatment for POEMS syndrome. 38  Furthermore, Drs. Latov and Parekh were selective in their interpretation of petitioner’s multitude of symptoms without taking into consideration her POEMS course as a whole. For instance, Dr. Latov posited that petitioner’s cherry angioma eruption and thrombocytosis were nonspecific findings in the context of both GBS and POEMS given their overall presence in the general population at large. Tr. 44-45. Dr. Parekh, by contrast, agreed that thrombocytosis could be attributable to POEMS syndrome, but he maintained it was not enough to diagnosis the condition. Tr. 245-46. In so stating, both experts interpreted the above-described symptoms in isolation of petitioner’s entire course, without taking into consideration the progression of her symptoms and relevant laboratory testing in retrospect. Regarding petitioner’s cranial nerve symptoms, Drs. Latov and Parekh maintained that instances of drooling are best attributable to a GBS diagnosis. Tr. 24, 55, 76, 231. POEMS, by contrast, is typically not associated with cranial nerve involvement. See Resp. Ex. A, Tab 6 at 678 (case report of POEMS patient indicating “no cranial and autonomic nerve involvement” upon exam). Upon further questioning, however, Dr. Latov acknowledged that there are instances of POEMS-related cranial nerve dysfunction reported in the older literature. Tr. 59. Dr. Lipe agreed that drooling is not a typical POEMS-related symptom, but she maintained that pulmonary and swallowing difficulties are attributable to POEMS syndrome. Tr. 267; see Resp. Ex. C, Tab 3 at 2500-01; Pet. Ex. 31, Tab C at 955. Along those same lines, Dr. Bourdette maintained that R.S.’s drooling was likely a consequence of the respiratory and swallowing problems she experienced, which would be attributable to the lower cranial nerve. Tr. 98-100; see Resp. Ex. H at 971. All in all, Dr. Lipe was more persuasive in discussing what was relevant in diagnosing POEMS based on evidence from contemporaneous medical records before and after petitioner’s actual date of diagnosis and the relevant medical literature. In so doing, she convincingly offered an interpretation of the medical history that petitioner has not rebutted. It is thus improbable that petitioner suffered from distinct GBS as a precursor illness to her later- diagnosed POEMS syndrome. ii. Althen Analysis 1. Althen Prong One: Petitioner’s Medical Theory Under Althen Prong One, petitioner must set forth a medical theory explaining how his flu vaccine could have caused the injury alleged. Andreu, 569 F.3d at 1375; Pafford, 451 F.3d at 1355-56. Petitioner’s theory of causation must be informed by a “sound and reliable medical or scientific explanation.” Knudsen, 35 F.3d at 548; see also Veryzer v. Sec’y of Health & Human Servs., 98 Fed. Cl. 214, 223 (2011) (noting that special masters are bound by both § 13(b)(1) and Vaccine Rule 8(b)(1) to consider only evidence that is both “relevant” and “reliable”). If petitioner relies upon a medical opinion to support his theory, the basis for the opinion and the reliability of that basis must be considered in the determination of how much weight to afford the offered opinion. See Broekelschen, 618 F.3d at 1347 (“[t]he special master’s decision often times is based on the credibility of the experts and the relative persuasiveness of their competing theories”); Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 n.6 (Fed. Cir. 1994) 39 (stating that an “expert opinion is no better than the soundness of the reasons supporting it”) (citing Fehrs v. United States, 620 F.2d 255, 265 (Ct. Cl. 1980)). The undersigned’s conclusion that petitioner likely did not suffer from GBS at the outset of her illness largely moots petitioner’s arguments that the flu vaccine played any role in her development of POEMS syndrome thereafter, given that petitioner’s theory requires a finding that she experienced vaccine-induced GBS. The undersigned will, however, consider the evidence offered by petitioner in support of the first Althen prong under the assumption that petitioner offered preponderant evidence in support of a GBS diagnosis. The molecular mimicry theory has been accepted in the Vaccine Program as a reliable explanation for how the flu vaccine can initiate an autoimmune process resulting in GBS. See, e.g., Reichert v. Sec’y of Health & Human Servs., No. 16-697V, 2018 WL 4496561, at *15 (Fed. Cl. Spec. Mstr. Aug. 2, 2018). Indeed, both Drs. Latov and Parekh offered reputable scientific literature associating the flu vaccine with an onset of GBS thereafter via the mechanistic process of molecular mimicry. See, e.g., Pet. Ex. 29, Tab P at 105. Apart from her inability to show that she more likely than not suffered from GBS at the outset, however, petitioner has also failed to preponderantly establish that chronic inflammation produced secondarily due to GBS can result in plasma cell proliferation let alone instigate POEMS syndrome specifically. As discussed above, Drs. Latov and Parekh propose that the chronic stimulation of B-cells can cause the body to produce an abundance of plasma cells. Tr. 33, 50-51, 232, 240-41. The medical articles offered in support, however, do not support this assertion. Notably, none of the articles cited by petitioner’s experts associate chronic immune stimulation pathologically with the onset of POEMS syndrome. See, e.g., Pet. Ex. 29, Tab E; Pet. Ex. 31, Tab M; Pet. Ex. 31, Tab W; Pet. Ex. 61. Indeed, the mouse model evidence offered by Dr. Parekh shows only that the mineral oil, pristane, a substance wholly distinguishable from a vaccine, can stimulate plasma cell growth. See, e.g., Pet. Ex. 68; Pet. Ex. 60. At best, petitioner offered the Lindqvist article to establish that patients with an established autoimmune disease have an increased risk of developing a plasma cell disorder. See Pet. Ex. 59 at 6284. As the undersigned discussed at length above, however, petitioner has not preponderantly established that she suffered from an autoimmune condition, whether GBS or CIDP, as a result of the flu vaccine. Moreover, the relevant literature offered by experts on both sides which discusses the pathogenesis of POEMS syndrome makes no mention of immune stimulation, whether chronic or acute, as an acceptable biologic mechanism capable of causing the condition. Petitioner’s expert, Dr. Latov, even acknowledged at hearing that petitioner’s case would be the first reported instance of POEMS syndrome occurring as a direct result of GBS/CIDP via the mechanism posited herein. Tr. 54. Such a novel theory, without more persuasive scientific evidence, does not rise to the level of sound and reliable. See Boatman, 941 F.3d at 1360. Another questionable element of petitioner’s theory is her proposition that cytokine upregulation, presumably attributable to the flu vaccine, could have played a pathogenic role in the development of POEMS syndrome. Petitioner’s experts have referenced medical literature showing that mice injected with various cytokine variants can express an over production of 40 plasma cells. Moreover, there is some evidence in the record suggesting that elevated serum VEGF levels are thought to be associated with POEMS syndrome pathogenesis. See, e.g., Pet. Ex. 29, Tab F at 215. Drs. Latov and Parekh have further discussed literature showing that VEGF has been shown to be elevated in the POEMS population at large. Even so, petitioner has not persuasively shown how a vaccine or its components can stimulate VEGF or any other cytokine, so as to cause POEMS syndrome. In summary, petitioner has not offered a sound and reliable medical theory in support of her claim. Petitioner has not met the preponderant evidentiary standard with respect to the first Althen prong. 2. Althen Prong Two: Logical Sequence of Cause and Effect Under Althen Prong Two, a petitioner must prove by a preponderance of the evidence that there is a “logical sequence of cause and effect showing that the vaccination was the reason for the injury.” Capizzano, 440 F.3d at 1324 (quoting Althen, 418 F.3d at 1278). “Petitioner must show that the vaccine was the ‘but for’ cause of the harm . . . or in other words, that the vaccine was the ‘reason for the injury.’” Pafford, 451 F.3d at 1356 (internal citations omitted). As noted above, the medical record and testimony herein establishes that petitioner suffers from POEMS syndrome, with the first symptom manifesting in October and November 2013. The undersigned’s findings with respect to the medical theory proffered in this case along with the appropriate diagnosis for petitioner’s symptoms make it impossible for the undersigned to conclude that petitioner successfully established a logical cause-and-effect sequence that in this case the flu vaccine “did cause” petitioner’s POEMS syndrome or that the vaccine initiated GBS, which caused POEMS. Without being able to establish a reliable medical theory, or that she suffered from GBS, petitioner cannot show that the vaccine more likely than not caused her illness thereafter. Although some of petitioner’s treaters made some reference to her onset of symptoms being temporally related to the flu vaccine, they did so based on the assumption that she had experienced GBS or CIDP at the outset. Following her diagnosis with POEMS, no treaters appear to have embraced an association between the flu vaccine and petitioner’s subsequent development of POEMS. Indeed, even petitioner’s experts acknowledged that vaccines likely do not play a causative role in the development of POEMS syndrome. 3. Althen Prong Three: Proximate Temporal Relationship Under Althen Prong Three, petitioner must provide “preponderant proof that the onset of symptoms occurred within a time[] frame for which, given the medical understanding of the disorder’s etiology, it is medically acceptable to infer causation-in-fact.” De Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The acceptable temporal association will vary according to the medical theory advanced in the case. See Pafford, 451 F.3d at 1358. A temporal relationship between a vaccine and an injury, standing alone, does not constitute preponderant evidence of vaccine causation. See, e.g., Veryzer, 100 Fed. Cl. at 356 41 (explaining that “a temporal relationship alone will not demonstrate the requisite causal link and that petitioner must posit a medical theory causally connecting [the] vaccine and injury”). Roughly two weeks passed between petitioner’s receipt of the flu vaccine and the onset of her symptoms initially thought to be caused by GBS. There is support in the relevant medical literature for the conclusion that the timeframe between vaccination and petitioner’s subsequent symptoms was medically acceptable—assuming she suffered from GBS as she alleges. See, e.g., Pet. Ex. 29, Tab P at 105. However, as outlined above, petitioner has not established that she more likely than not suffered from GBS at the outset of her illness. Moreover, even if petitioner had accepted the conclusion that her symptoms in October and November 2013 were indicative of POEMS, and argued that it was caused by her receipt of the flu vaccine, there would still be a lack of a medically-acceptable temporal relationship, due to the fact that neither Dr. Latov nor Dr. Parekh proposed that vaccinations could cause POEMS syndrome at all let alone offered some medically cognizable timeframe for such an injury. Petitioner thus has not met her burden on the third Althen prong. VII. CONCLUSION POEMS syndrome has caused significant distress in petitioner’s life, and the undersigned empathizes with her dedicated search for medical and scientific answers. However, for all the reasons discussed above, the undersigned finds that petitioner has not established by preponderant evidence that she is entitled to compensation and her petition must be dismissed. In the absence of a timely filed motion for review pursuant to Vaccine Rule 23, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with this Decision. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 42 

IN THE SUPREME COURT OF THE STATE OF DELAWARE WAL-MART STORES, INC., § § No. 614, 2013 Defendant Below, § Appellant/Cross-Appellee, § § Court Below-Court of v. § Chancery of the State of § Delaware INDIANA ELECTRICAL WORKERS § C.A. No. 7779 PENSION TRUST FUND IBEW, § § Plaintiff Below, § Appellee/Cross-Appellant § Submitted: July 10, 2014 Decided: July 23, 2014 Before HOLLAND, BERGER, and RIDGELY, Justices and BUTLER and WALLACE, Judges,1 constituting the Court en Banc. Upon appeal from the Court of Chancery. AFFIRMED. Donald J. Wolfe, Jr., Esquire, Stephen C. Norman, Esquire, Tyler Leavengood, Esquire, Potter Anderson & Corroon LLP, Wilmington, Delaware, Theodore J. Boutrous, Jr., Esquire, Gibson Dunn & Crutcher LLP, Los Angeles, California, Jonathan C. Dickey, Esquire, Brian M. Lutz, Esquire, Gibson Dunn & Crutcher LLP, New York, New York, Mark A. Perry, Esquire (argued), Gibson Dunn & Crutcher LLP, Washington, DC, for appellants. Stuart M. Grant, Esquire (argued), Michael J. Barry, Esquire, Nathan A. Cook, Esquire, Bernard C. Devieux, Esquire, Grant & Eisenhoffer, P.A., Wilmington, Delaware, for appellees. 1 Sitting by designation pursuant to Del. Const. art. IV, § 12 and Supr. Ct. R. 2 and 4. HOLLAND, Justice: The Defendant Below/Appellant-Cross Appellee Wal-Mart Stores, Inc. (“Wal-Mart” or the “Company”) appeals from a final judgment of the Court of Chancery identifying specific steps Wal-Mart must take in searching for documents, and specific categories of documents Wal-Mart must produce, in response to a demand made by Plaintiff Below/Appellee-Cross Appellant Indiana Electrical Workers Pension Trust Fund IBEW ( “IBEW” or “Plaintiff”) pursuant to title 8, section 220 of the Delaware Code. The Court of Chancery conducted a Section 220 trial on the papers to determine whether Wal-Mart had produced all responsive documents in reply to IBEW’s demand. The Court of Chancery entered a Final Order and Judgment, which required Wal-Mart to produce a wide variety of additional documents, including ones whose content is privileged or protected by the work-product doctrine. Wal-Mart appeals the Court of Chancery’s Final Order with regard to its obligations to provide additional documents. IBEW filed a cross-appeal, arguing that the Court of Chancery erred in failing to require Wal-Mart to correct the deficiencies in its previous document productions and in granting in part Wal- Mart’s motion to strike its use of certain Whistleblower Documents. 2  We conclude that all of the issues raised in this appeal and cross-appeal are without merit. Therefore, the judgment of the Court of Chancery must be affirmed. Facts IBEW is a retirement system that provides retirement benefits to electrical workers in Indiana. Wal-Mart is a Delaware corporation that has its headquarters in Bentonville, Arkansas. Wal-Mart operates stores in 27 different countries and employs about 2.2 million people worldwide. The Company’s stock is listed on the NYSE. Wal-Mart de Mexico, S.A. de C.V. (“WalMex”) is a subsidiary of Wal-Mart in which Wal-Mart owns a controlling interest. WalMex is not a party to this action. At all times IBEW has been a stockholder of appellant, Wal-Mart. On April 21, 2012, The New York Times, in an article titled Vast Mexico Bribery Case Hushed Up by Wal-Mart After Top-Level Struggle (the “Times Article”), 2 described a scheme of illegal bribery payments made to Mexican officials at the direction of then-WalMex CEO, Eduardo Castro-Wright, between 2002 and 2005. The Times Article revealed that Wal-Mart executives were aware of the conduct no later than September 21, 2005, and suggested that Wal-Mart’s responses were deficient. IBEW summarized the Times Article in its answering brief, as follows: 2 Appendix to Wal-Mart’s Opening Br. at A96-116. 3  In exchange for the bribes, WalMex received benefits ranging from zoning changes to rapid and favorable processing of permits and licenses for new stores. The Company was aware of this illegal conduct by no later than September 21, 2005, when an executive of WalMex, Sergio Cicero Zapata (“Cicero”), informed the general counsel of Wal-Mart International, Maritza I. Munich (“Munich”), of “‘irregularities’ authorized by ‘the highest levels’ at [WalMex].” Munich initiated the investigation (the “WalMex Investigation”), first hiring a Mexican attorney to interview Cicero and evaluate his allegations, and then working with Willkie Farr & Gallagher LLP (“Willkie Farr”) to develop an independent investigation plan. Wal- Mart’s senior leadership in the U.S., however, rejected Willkie Farr’s November 2005 proposal for a “thorough investigation,” and instead chose a “far more limited” internal two-week “Preliminary Inquiry” involving Wal-Mart’s Corporate Investigations Department and International Internal Audit Services (“IAS”) departments. The “Preliminary Inquiry” work-plan provided that, among other things, a progress report would be given to Wal-Mart’s management and the Chairman of the Audit Committee, Roland Hernandez (“Hernandez”), on November 16, 2005. Munich kept senior Wal-Mart officials in Arkansas apprised of the preliminary inquiry in a series of emails and detailed memoranda. In December 2005, an internal Wal-Mart report on the preliminary inquiry’s findings was sent to Wal-Mart executives describing evidence “corroborat[ing] the hundreds of gestor payments [i.e., payments to ‘fixers’], the mystery codes, the rewritten audits, the evasive responses from [WalMex] executives, the donations for permits, the evidence gestores [i.e., ‘fixers’] were still being used.” The report’s conclusion was grave: “There is reasonable suspicion to believe that Mexican and USA laws have been violated.” Rather than expand the investigation, Wal-Mart executives chastised the investigators for being “overly aggressive . . . .” On February 3, 2006, Scott3 ordered the prompt development of a “modified protocol” for internal investigations. As a result, control over the 3 H. Lee Scott has been a director of Wal-Mart since 1999, Wal-Mart’s CEO from 2000 to 2009, and a Wal-Mart executive officer until January 31, 2011. 4  WalMex Investigation was transferred to “one of its earliest targets,” José Luis Rodríguezmacedo, WalMex’s general counsel (“Rodríguezmacedo”). Munich complained to senior Wal-Mart executives, noting that “[t]he wisdom of assigning any investigative role to management of the business unit being investigated escapes me,” and resigned from the Company shortly thereafter. Rodríguezmacedo quickly cleared himself and his fellow WalMex executive of any wrongdoing, “wrapp[ing] up the case in a few weeks, with little additional investigation[,]” and concluding that “[t]here is no evidence or clear indication of bribes paid to Mexican government authorities with the purpose of wrongfully securing any licenses or permits.” On June 6, 2012, Wal-Mart received a letter from IBEW (the “Demand”). The letter requested inspection of broad categories of documents relating to the bribery allegations described in the Times Article (the “WalMex Allegations”). The purpose of the Demand, as explained in the letter, was to investigate: (1) mismanagement in connection with the WalMex Allegations; (2) the possibility of breaches of fiduciary duty by Wal-Mart or WalMex executives in connection with the bribery allegations; and (3) whether a pre-suit demand on the board would be futile as part of a derivative suit. On June 13, 2012, Wal-Mart responded to the Demand, agreeing, subject to certain conditions, to make available to IBEW Board materials such as minutes, agendas, and presentations, relating to the WalMex Allegations, as well as existing policies relating to Wal-Mart’s Foreign Corrupt Practices Act (“FCPA”) compliance. Wal-Mart declined to provide documents that it determined were not 5 necessary and essential to the stated purposes in the Demand or that were protected by the attorney-client privilege and work-product doctrine. On August 1, 2012, Wal-Mart produced over 3,000 documents to IBEW, consisting of: policies relating to FCPA compliance, all Board and Audit Committee minutes and materials referencing the WalMex Allegations dating back to when those allegations arose in 2005, and Board and Audit Committee minutes and materials relating to Wal-Mart’s FCPA policy and compliance program. However, most of those documents were highly redacted without any explanation for the redactions. On August 13, 2012, IBEW filed a Complaint in the Court of Chancery pursuant to Section 220, alleging various deficiencies relating to Wal-Mart’s confidentiality designations and redactions in its production, and asserting that certain documents falling within the scope of the Demand had not been produced. In an attempt to satisfy IBEW, Wal-Mart provided an additional production on August 28, 2012, which included additional documents, less redacted material, and provided the reasons for the redactions that remained. On September 10, 2012, IBEW noticed depositions of certain Wal-Mart records custodians to gain information about documents that it believed should have been disclosed. IBEW noticed depositions of a current senior officer, a former senior officer, and a Rule 30(b)(6) witness. In response, Wal-Mart moved 6 for a protective order, alleging that the deposition notices encompassed virtually every document that might relate in any way to the WalMex Allegations. At an October 12, 2012 hearing, the Court of Chancery granted Wal-Mart’s motion for a protective order in part and restricted the scope of the depositions noticed by IBEW. To comply with the Court of Chancery’s October 12 ruling, Wal-Mart reviewed more than 160,000 documents. To locate any additional responsive documents, Wal-Mart also interviewed a number of current and former employees, officers, and directors, and it searched the data of eleven custodians. Wal-Mart then provided IBEW with a further supplemental production and an updated privilege log. On December 6, 2012, IBEW conducted a Rule 30(b)(6) deposition. Months earlier, in May 2012, IBEW’s counsel received an anonymous package containing high-level Wal-Mart documents that were mentioned in the Times Article and pertained to the WalMex Investigation (the “Whistleblower Documents”). Pursuant to the ethics rules, IBEW’s counsel immediately notified Wal-Mart’s counsel, who stated that the documents were stolen by a former employee. Wal-Mart took no other action regarding the Whistleblower Documents, but moved to strike the documents and prevent IBEW from using them. 7  IBEW advised the Court of Chancery that Wal-Mart’s document production did not comply with its October 12 ruling. The parties agreed to conduct a Section 220 trial on the basis of a paper record. The sole issue presented for judicial determination was whether Wal-Mart had produced all of the documents that were responsive to IBEW’s Demand. Final Order On May 20, 2013, the Court of Chancery heard oral argument and ordered Wal-Mart to produce all documents in the custody of eleven custodians whose data Wal-Mart had previously searched relating to (1) the WalMex Allegations, (2) policies and procedures regarding FCPA compliance, and (3) policies and procedures relating to internal investigations. The Court of Chancery’s ruling also required Wal-Mart to produce documents in the files of Roland A. Hernandez, a former director and former Chairman of Wal-Mart’s Audit Committee. In addition, the Court of Chancery ordered Wal-Mart to search the files of any person who served as an assistant to any of the twelve custodians. The Court of Chancery further held that IBEW was entitled to documents protected by the attorney-client privilege, invoking the exception articulated in Garner v. Wolfinbarger4 (the “Garner doctrine”). The Court of Chancery also ordered Wal-Mart to produce documents protected by the attorney work-product doctrine. 4 430 F.2d 1093 (5th Cir. 1970). 8  At a June 4, 2013 hearing on the parties’ competing forms of order, the court also addressed IBEW’s request for production of documents from Wal-Mart’s disaster recovery (or “backup”) tapes, which was made for the first time at the June 4 hearing. On October 15, 2013, the Court of Chancery entered the Final Order and Judgment.5 The Final Order requires Wal-Mart to produce: (1) officer (and lower)- level documents regardless of whether they were ever provided to Wal-Mart’s Board of Directors or any committee thereof; (2) documents spanning a seven-year period and extending well after the timeframe at issue; (3) documents from disaster recovery tapes; and (4) any additional responsive documents “known to exist” by the undefined “Office of the General Counsel.” The Final Order also requires the production of, among other things, “contents of Responsive Documents that are protected by the attorney-client privilege . . . and the contents that are protected by the attorney work-product doctrine under Court of Chancery Rule 26(b)(3),” but subject to the condition that IBEW “take appropriate steps to protect the confidentiality of [Wal-Mart’s] privileged documents, including filing and maintaining any such document as confidential.” 6 5 Ex. A to Wal-Mart’s Opening Br. at *5 [hereinafter Final Order]. 6 Del. Code Ann. tit. 8, § 220(c) (2014) (“The Court [of Chancery] may, in its discretion, prescribe any limitations or conditions with reference to the inspection.”). 9  The Court of Chancery also granted Wal-Mart’s motion to strike IBEW’s use of the Whistleblower Documents in part, allowing IBEW only to use those documents that were posted on The New York Times website or to the congressional website, or referenced in Wal-Mart’s public filings. The Court of Chancery ruled that IBEW’s request for Wal-Mart to correct the deficiencies in its previous productions had been waived. Parties’ Contentions In its appeal, Wal-Mart contends that the Court of Chancery erred in ordering Wal-Mart to produce documents that “far exceed” the proper scope of a Section 220 request. Wal-Mart cites four ways in which the Court of Chancery’s Final Order is beyond the proper scope of a Section 220 proceeding: first, it requires Wal-Mart to produce officer-level documents; second, it requires Wal- Mart to produce documents spanning a seven-year period, which is longer than the period in which the wrongdoing is alleged to have occurred; third, it requires Wal- Mart to search disaster recovery tapes for data from two custodians; and fourth, it requires Wal-Mart to produce documents “known to exist” by Wal-Mart’s Office of the General Counsel. Wal-Mart further submits that the Court of Chancery improperly and incorrectly applied the Garner doctrine to documents that it asserts are protected by the attorney-client privilege. Additionally, Wal-Mart contends that the Court of 10 Chancery erred by improperly applying the Garner doctrine to other documents that Wal-Mart asserts constitute protected attorney work product. In its cross-appeal, IBEW argues that the Court of Chancery erred by not ordering Wal-Mart to correct deficiencies in its search for, and collection of, books and records. The Court of Chancery held that IBEW waived this argument. IBEW submits, however, that because there was no prejudice to Wal-Mart, the issue should be decided on the merits. In its cross-appeal, IBEW also contends that the Court of Chancery’s conclusion that the Whistleblower Documents are subject to conversion is not supported by the record. According to IBEW, Wal-Mart bore the burden of proof on this conversion theory and did not provide the Court of Chancery with any record to support its ruling. IBEW argues that the Court of Chancery’s inference that because the Whistleblower Documents were sent anonymously, the individual must have stolen them, is unsupported by the record. Standard of Review Wal-Mart does not dispute that the Court of Chancery recognized that the proper standard to be applied to Section 220 actions is “necessary and essential.” 7 7 Saito v. McKesson HBOC, Inc., 806 A.2d 113, 116 (Del. 2002) (quoting Del. Code Ann. tit. 8, § 220(b)). 11 Wal-Mart also does not dispute that IBEW stated at least one proper purpose.8 However, Wal-Mart challenges the scope of the Final Order directing Wal-Mart to take specific steps to search for and to produce documents responsive to the Demand. According to Wal-Mart, IBEW failed to meet its burden of showing that the scope of production ordered by the Court of Chancery was “necessary and essential” to IBEW’s proper purposes and that the Final Order provides IBEW with the type of discovery that is reserved for plenary proceedings. Documents are “necessary and essential” pursuant to a Section 220 demand if they address the “crux of the shareholder’s purpose” and if that information “is unavailable from another source.”9 Whether documents are necessary and essential “is fact specific and will necessarily depend on the context in which the shareholder’s inspection demand arises.”10 The plain language of Section 220(c) provides that “[t]he Court [of Chancery] may, in its discretion, prescribe any limitations or conditions with reference to the inspection.” 11 Accordingly, this Court reviews the Court of 8 See, e.g., Appendix to Wal-Mart’s Opening Br. at A297 (“The only issue in dispute in this case is the extent of the corporate books and records to which Plaintiff is entitled and whether it extends beyond those documents the Company has already provided.”). 9 Espinoza v. Hewlett-Packard Co., 32 A.3d 365, 371-72 (Del. 2011). 10 Id. at 372. 11 Del. Code Ann. tit. 8, § 220(c) (2014) (emphasis added). 12 Chancery’s “determination of the scope of relief available in a Section 220 books and records action for abuse of discretion.”12 The standard of review this Court applies to the Court of Chancery’s exercise of statutorily conferred discretion is highly deferential. 13 However, questions of law, such as the applicability of the attorney-client privilege and the work-product doctrine, are reviewed de novo.14 Officer-Level Documents Wal-Mart argues that the Court of Chancery abused its discretion and committed legal error by requiring it “to produce documents that were never presented to or created by members of [Wal-Mart’s] Board of Directors” and by creating a “presumption” that “officer-level knowledge should be imputed wholesale to the Board.” These arguments are not supported by the record for two reasons: first, IBEW’s Demand had three proper purposes; and second, the Court of Chancery’s ruling did not create a presumption. 12 Espinoza, 32 A.3d at 371; see also Security First Corp. v. U.S. Die Casting and Dev. Co., 687 A.2d 563, 569 (Del. 1997). 13 See, e.g., Remco Ins. Co. v. State Ins. Dep’t., 519 A.2d 633, 637-38 (Del. 1986) (“In view of the established facts and because it is the Court of Chancery in which the statute [18 Del. C. § 5905] vests discretion, this Court will not attempt to substitute its own notions on the matter for those carefully articulated by the Court of Chancery.”) (citing Chavin v. Cope, 243 A.2d 694 (Del. 1968)). See also Chavin, 243 A.2d at 695 (“When an act of judicial discretion is under review the reviewing court may not substitute its own notions of what is right for those of the trial judge, if his judgment was based upon conscience and reason, as opposed to capriciousness or arbitrariness.”). 14 Espinoza, 32 A.3d at 371. 13  Wal-Mart contends that it is “undisputed that the purpose of IBEW’s inspection here is limited to determining whether demand on the current Board with respect to the WalMex Allegations would be futile” and that, accordingly, officer-level documents are not “necessary and essential to [IBEW’s] stated purpose.” The Court of Chancery acknowledged that the purpose of IBEW’s Demand “was primarily to look for facts to determine whether demand is, in fact, excused.”15 However, the other stated purposes of IBEW’s Demand were to investigate the underlying bribery and how the ensuing investigation was handled. The Court of Chancery acknowledged these other purposes. In its bench ruling ordering Wal-Mart to produce documents, the Court of Chancery explained that this information could be used for two purposes: [T]he core information that the petitioners probably most legitimately need in order to plead demand excusal or—and I want to be very clear about this—or to conclude that the appropriate action is an actual very strongly written demand, that why are these seven people still compliance people at Wal-Mart or in executive positions when they knew material information about legal violations, which they apparently did not share with higher-ups, and deprived the board of its ability to take effective remedial action to protect the company’s reputation and interests?16 As the Court of Chancery explained: 15 Appendix to Wal-Mart’s Opening Br. at A512. 16 Id. at A609-10. 14  I believe . . . that core information regarding the WalMex bribery, construction-permitting situation and how it was handled within Wal- Mart by high-level officers and directors, that information about that is essentially central to the plaintiff’s request. That is the wrongdoing they’re dealing with, is did Wal-Mart deal appropriately with that? Did Wal-Mart have effective internal controls to address situations like that and did it take appropriate remedial action when it was faced with that?17 In fact, Wal-Mart’s Opening Brief to this Court states that “the plaintiff’s Section 220 purpose was to investigate allegations in [The] New York Times concerning corrupt payments supposedly made by WalMex employees in Mexico, and how Wal-Mart investigated those allegations.” Therefore, Wal-Mart’s argument that officer-level documents are not “necessary and essential” to one of IBEW’s three proper purposes is not supported by the record. Moreover, Wal-Mart does not dispute that key officers were involved in the WalMex Investigation. Accordingly, officer-level documents are necessary and essential to determining whether and to what extent mismanagement occurred and what information was transmitted to Wal-Mart’s directors and officers.18 In McKesson Corp. v. Saito,19 this Court affirmed a Court of Chancery ruling that permitted inspection of officer-level documents. In doing so, we noted that 17 Id. at A582-83. 18 See Saito v. McKesson HBOC, Inc., 806 A.2d 113, 118 (Del. 2002). 19 818 A.2d 970 (Del. 2003) (Table) (affirming a Court of Chancery opinion that required the disclosure of officer-level documents). 15 “generally, the source of the documents in a corporation’s possession should not control a stockholder’s right to inspection under § 220.”20 Wal-Mart acknowledges officer-level documents that “refer[ ] to communications with members of the Board” regarding the WalMex Investigation are necessary and essential to the demand futility inquiry. However, the Court of Chancery’s ruling was not limited to officer-level communications with directors. The Court of Chancery held that officer-level documents from which director awareness of the WalMex Investigation may be inferred are also necessary and essential to IBEW’s Demand and must be produced. Wal-Mart argues that the Court of Chancery erred by adopting a presumption that “officer-level knowledge should be imputed wholesale to the Board.” The record reflects that the Court of Chancery did not adopt such a presumption. The Court of Chancery held that officer-level documents are necessary to Plaintiff’s inspection because Plaintiff may establish director knowledge of the WalMex Investigation by establishing that certain Wal-Mart officers were in a “reporting relationship” to Wal-Mart directors, that those officers did in fact report to specific directors, and that those officers received key information regarding the WalMex Investigation. 20 Saito, 806 A.2d at 118. 16  The Court of Chancery concluded that the reasonable inference from such facts would be that those officers passed the information on to the directors. The Court of Chancery’s acknowledgment that a reasonable inference can be established by circumstantial evidence is not the functional equivalent of creating a presumption. The record reflects that the Court of Chancery properly exercised its discretion in ordering Wal-Mart to produce certain officer-level documents. Relevant Dates for Production Wal-Mart asserts that the Court of Chancery abused its discretion with respect to the date range of production required by the Final Order. The Demand identified the relevant time period as “September 1, 2005 to the present.” Wal- Mart did not object to this time period in responding to the Demand and, in fact, agreed that it was appropriate: The Company believes that board minutes and agendas and Company policies regarding compliance with the Foreign Corrupt Practices Act, for the period of 2005 to the present, satisfy the necessary and essential requirement imposed by Section 220 and is therefore willing to produce them to your client.21 Consistent with this representation, Wal-Mart then produced documents to IBEW dated into 2012. However, at trial and in its September 2013 proposed final order, Wal-Mart sought to limit the relevant time period at December 31, 2010. IBEW argues that: 21 Appendix to IBEW’s Answering Br. on Appeal/Opening Br. on Cross-Appeal at B35-36 (emphasis added). 17  a key category of responsive documents essential to Plaintiff’s proper purpose are documents concerning the Company’s ongoing compliance activities and changes to its operative compliance procedures, such as changes to the Audit Committee’s charter. These documents, including documents reflecting changes in the wake of the WalMex Investigation, will bear on director and officer knowledge of the investigation, and thus liability. Indeed, Wal-Mart’s privilege log confirms that responsive documents exist from September 2005 through at least May 2012. The Court of Chancery agreed with IBEW’s argument and found that it was supported by the record. We agree. Therefore, we hold that the Court of Chancery properly exercised its discretion in setting the range of dates for production. Disaster Recovery Tapes for Two Custodians Wal-Mart argues that the Court of Chancery abused its discretion and “committed legal error in requiring the Company to collect and search the data from disaster recovery tapes for two additional custodians, or to explain why such collection would not be feasible.” Some of the events relating to the WalMex Investigation occurred over seven years ago. The record reflects that Wal-Mart voluntarily collected disaster tape recovery data for nine custodians but not for the two custodians at issue. IBEW argues that by collecting backup data for nine custodians, Wal-Mart implicitly recognizes that it may be a source of responsive documents. The Final Order requires Wal-Mart to search this data for two additional custodians or, “[i]f it is not feasible . . . provide a detailed explanation for this inability to collect [the] 18 data.”22 The record reflects that the Court of Chancery properly exercised its discretion with regard to the production of disaster recovery tapes for the two additional custodians. General Counsel Documents Wal-Mart contends that the Court of Chancery committed legal error by ordering the production of documents “known to exist by . . . the Office of the General Counsel of Wal-Mart.”23 According to Wal-Mart, the requirement that Wal-Mart produce documents “known to exist by” that undefined and unidentified “Office” is vague and ambiguous. In addition, Wal-Mart submits “this type of sweeping, indiscriminate production order flies in the face of Section 220’s mandate that the Court of Chancery narrowly circumscribe Section 220 relief to serve only the plaintiff’s stated purpose.” Accordingly, Wal-Mart asserts that the Court of Chancery’s Final Order, with respect to the Office of the General Counsel, lacks the requisite “precision.”24 The record reflects that Wal-Mart’s proposed order stated, “Defendant shall produce or log on its privilege log 1) all Relevant Data of the Identified Sources and 2) all Relevant Data of which its Litigation Counsel or its in-house counsel 22 Appendix to Wal-Mart’s Opening Br. at A727. 23 Final Order at *3. 24 See Espinoza v. Hewlett-Packard Co., 32 A.3d 365, 372 (Del. 2011); Sec. First Corp. v. U.S. Die Casting and Dev. Co., 687 A.2d 563, 570 (Del. 1997). 19 charged with responding to the Demand are aware, regardless of how such Relevant Data was identified.”25 The term “Office of the General Counsel” in the Final Order replaced the “in-house counsel” term used by Wal-Mart in its proposed order. Wal-Mart contends the term “the Office of the General Counsel” is ambiguous. In Saito, this Court affirmed the Court of Chancery’s use of descriptive terminology, such as “representatives,” “management,” “employees,” and “advisors.”26 Therefore, the Court of Chancery did not abuse its discretion by ordering the descriptive production of responsive documents “known to exist by . . . the Office of the General Counsel . . . .” The appropriate forum for relief from an allegedly ambiguous term is in the Court of Chancery by filing a motion for clarification.27 Garner Doctrine Adopted In this appeal, Wal-Mart raises two arguments regarding the Garner doctrine that it did not present to the Court of Chancery. First, Wal-Mart submits that the 25 Appendix to Wal-Mart’s Opening Br. at A717. 26 See Saito v. McKesson HBOC, Inc., 806 A.2d 113 (Del. 2002). 27 See, e.g., New Castle County v. Pike Creek Recreational Services, LLC, 2013 WL 6904387, at *2 (Del. Ch. Dec. 30, 2013) (“A motion for clarification may be granted where the meaning of what the Court has written is unclear.”); Naughty Monkey LLC v. MarineMax Northeast LLC, 2011 WL 684626, at *1 (Del Ch. Feb. 17, 2011) (same). 20 Garner doctrine has never been adopted by this Court and therefore the availability of the Garner doctrine to litigants in Delaware is an open question. Second, Wal- Mart contends that, regardless of whether the Garner doctrine is generally available to litigants in a plenary proceeding, the doctrine should not be available to stockholders in the context of Section 220 litigation. These two arguments are new to this litigation, neither having been presented to the Court of Chancery. Below, Wal-Mart argued only that IBEW had not shown “good cause” as required by the factors set forth in the Garner decision.28 Although Wal-Mart failed to preserve either of its Garner arguments for appeal, “when the interests of justice so require, [this] Court may consider and determine any question not” presented to the trial court. 29 We have determined that the interests of justice require this Court to consider both of Wal-Mart’s Garner arguments. In Garner v. Wolfinbarger,30 the Fifth Circuit Court of Appeals recognized a fiduciary exception to the attorney-client privilege when it held: The attorney-client privilege still has viability for the corporate client. The corporation is not barred from asserting it merely because those demanding information enjoy the status of stockholders. But where the corporation is in suit against its stockholders on charges of acting 28 See Appendix to Wal-Mart’s Opening Br. at A332-40. 29 Supr. Ct. R. 8. 30 430 F.2d 1093 (5th Cir. 1970). 21  inimically to stockholder interests, protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show cause why it should not be invoked in the particular instance. 31 The Fifth Circuit then listed several factors that should be considered when evaluating whether the plaintiff has met its “good cause” burden. 32 Thus, the Garner holding allows stockholders of a corporation to invade the corporation’s attorney-client privilege in order to prove fiduciary breaches by those in control of the corporation upon showing good cause. The Court of Chancery relied on the fiduciary exception to attorney-client privilege described in Garner to require the production of certain documents by Wal-Mart. In the trial transcript the Court of Chancery stated: 31 Id. at 1103-04. 32 The Fifth Circuit listed the following factors as relevant to the good cause inquiry: There are many indicia that may contribute to a decision of presence or absence of good cause, among them the number of shareholders and the percentage of stock they represent; the bona fides of the shareholders; the nature of the shareholders’ claim and whether it is obviously colorable; the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources; whether, if the shareholders’ claim is of wrongful action by the corporation, it is of action criminal, or illegal but not criminal, or of doubtful legality; whether the communication is of advice concerning the litigation itself; the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing; the risk of revelation of trade secrets or other information in whose confidentiality the corporation has an interest for independent reasons. Id. at 1104. 22  And under Garner, to me, it’s a classic application of Garner, because it’s a situation where, you know, has there been—I think the shareholders—and I take them—given their role in the thing, I think they’ve got enough skin in the game to qualify under Garner. .... So for the documents for which attorney-client solely has been sought, I’m ordering their production under Garner.33 Wal-Mart argues that the Court of Chancery erred in applying the Garner doctrine because this Court has never endorsed the doctrine in a plenary proceeding, much less in a summary Section 220 proceeding. This Court has, on two occasions, tacitly endorsed, in dicta, the Garner doctrine. Two decades ago, in Zirn v. VLI Corp.,34 this Court acknowledged that the attorney-client privilege “is not absolute and, if the legal advice relates to a matter which becomes the subject of a suit by a shareholder against the corporation, the invocation of privilege may be restricted or denied entirely.”35 Our decision in Zirn specifically cited the Court of Chancery’s application of the Garner doctrine requiring “good cause” for the disclosure of privileged communications and explained that this Court “[did] not share the [Court of Chancery’s] conclusion that there was no showing of good 33 Appendix to Wal-Mart’s Opening Br. at A586-89. 34 621 A.2d 773 (Del. 1993). 35 Id. at 781 (citing Valente v. Pepsico, Inc., 68 F.R.D. 361 (D. Del. 1975)). 23 cause based on direct conflict of interest . . . .”36 Nevertheless, in Zirn, this Court did not ultimately rely on the Garner doctrine in concluding that the privilege was waived through partial disclosure. 37 In the context of a Section 220 action in Espinoza v. Hewlett-Packard Co.,38 this Court was presented with the question of the applicability of the Garner doctrine, but did not reach that issue. In Espinoza, we ultimately cited the plaintiff’s failure to show that the documents requested were “essential” to his proper purpose as the reason for affirming the Court of Chancery’s ruling, rather than the applicability of Garner. This Court explained: “The ‘essentiality’ inquiry should logically precede any privilege or work product inquiry, because the former inquiry is dispositive of a predicate question—the scope of inspection relief to which a plaintiff is entitled under § 220.”39 Thus, Garner still has not been explicitly adopted by this Court in the context of either a plenary proceeding or a Section 220 action. On at least three occasions, however, the Court of Chancery has expressly adopted Garner as a valid exception to attorney-client privilege in the context of Section 220 books and 36 Id. 37 See id. at 781-82. 38 32 A.3d 365 (Del. 2011). 39 Id. at 374. 24 records actions.40 Of particular relevance is Grimes v. DSC Communications Corp.,41 where the Court of Chancery relied on the Garner doctrine to compel the production of documents in a Section 220 action, despite “the different posture of [the] action from those in which courts normally analyze whether to invoke the exception to application of the attorney-client privilege.” 42 In Grimes, the Court of Chancery explained why its use of Garner was appropriate in the Section 220 demand context as follows: In the present action, the plaintiff seeks access to DSC’s books and records in order to determine whether the board wrongfully refused his demand, and if so to assist him in meeting the particularized pleading requirements of Rule 23.1. Plaintiff is looking down the road to a demand-refused case where the focus will be on whether or not he can establish sufficient facts to overcome the decision made by the Special Committee and the board of directors in rejecting his demand. Thus, while as of yet no action has been filed, the current posture of the case contemplates the possible filing of a derivative suit sometime in the future. Thus, it is appropriate to analyze whether the plaintiff has demonstrated “good cause” under the factors set forth in Garner.43 40 See Khanna v. Covad Communications Group, Inc., 2004 WL 187274, at *7 (Del. Ch. Jan. 23, 2004) (discussing Garner and Grimes for the various factors to consider under the court’s “good cause” analysis in a Section 220 action); Saito v. McKesson HBOC, Inc., 2002 WL 31657622, at *12-13 (Del. Ch. Nov. 13, 2002) (applying the Garner factors for “good cause” in a Section 220 books and records proceeding); Grimes v. DSC Communications Corp., 724 A.2d 561, 568-69 (Del. Ch. 1998) (same). 41 724 A.2d 561 (Del. Ch. 1998). 42 Id. at 568. 43 Id. at 568-69. 25  In Grimes, the Court of Chancery then applied the Garner factors and concluded that the plaintiff had demonstrated “good cause” and was entitled to receive the disputed documents as part of its Section 220 books and records demand.44 In summarizing its conclusion, the Court of Chancery in Grimes noted, “[o]f particular import is the fact that the documents sought are unavailable from any other source while at the same time their production is integral to the plaintiff’s ability to assess whether the board wrongfully refused his demand—the stated purpose of his Section 220 demand.”45 The attorney-client privilege can be traced back to Roman times and is the oldest privilege recognized by Anglo-American jurisprudence.46 Delaware courts have agreed with the United States Supreme Court’s characterization of the attorney-client privilege as “critical” to “encourag[ing] full and frank communication between attorneys and their clients and thereby promot[ing] broader public interests in the observance of law and administration of justice,” including where the client is a corporation. 47 Accordingly, the Garner doctrine 44 Id. at 569. 45 Id. 46 See 8 John Henry Wigmore, Evidence in Trials at Common Law § 2290 (McNaughton rev. ed. 1961); see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 47 In re Lyle, 74 A.3d 654 (Del. 2013) (Table); see also Zirn v. VLI Corp., 621 A.2d 773, 781 (Del. 1993) (quoting Upjohn, 449 U.S. at 389); Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992); Deutsch v. Cogan, 580 A.2d 100, 104 (Del. 1990). 26 fiduciary exception to the attorney-client privilege is narrow, exacting, and intended to be very difficult to satisfy. It achieves a proper balance between legitimate competing interests. We hold that the Garner doctrine should be applied in plenary stockholder/corporation proceedings.48 We also hold that the Garner doctrine is applicable in a Section 220 action. However, in a Section 220 proceeding, the necessary and essential inquiry must precede any privilege inquiry because the necessary and essential inquiry is dispositive of the threshold question—the scope of document production to which the plaintiff is entitled under Section 220. 49 Garner Doctrine Properly Applied Wal-Mart contends that the Court of Chancery erred in holding that IBEW met its burden of showing the predicate necessity of the privileged information sought. The record reflects that IBEW’s proper purposes sought information regarding the handling of the WalMex Investigation, whether a cover-up took place, and what details were shared with the Wal-Mart Board. The Court of Chancery explained that the documents IBEW sought under Garner “go to those issues”: 48 See Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). 49 Espinoza v. Hewlett-Packard Co., 32 A.3d 365, 374 (Del. 2011). 27  There is evidence in this record of indications within Wal-Mart itself by internal audit and legal staff of Wal-Mart policies, to not entrust investigations to the business unit being investigated; indications of concern about entrusting the investigation to people within the legal department at WalMex, who are actually subjects of the investigation, or should have been subjects; indications when their reports came back from WalMex that this wasn’t really a good-looking report, didn’t seem up to snuff, and yet nothing being done to remedy it. 50 After finding that the privileged documents were necessary and essential to IBEW’s proper purposes, the Court of Chancery considered the panoply of factors set forth in Garner in determining whether good cause existed to order the privileged documents to be produced. The Court of Chancery began by examining whether IBEW had demonstrated a colorable claim against Wal-Mart and whether the information was available via other means at this point in the litigation. The Court of Chancery concluded that a colorable claim existed based on “Wal-Mart’s own public statements about this [which] suggest that there were some real concerns about what was going on in Mexico and whether it was legal.” 51 As for the availability of the information from other, non-privileged sources, the Court of Chancery concluded: [I]n a circumstance where judgments were made, which appear to be at odds with Wal-Mart’s own internal documents in terms of how you go about things, about avoiding going to the head of a business unit— as I said, this is just not a situation where they did something internal. 50 Appendix to Wal-Mart’s Opening Br. at A586. 51 Id. 28  .... There wasn’t a way to do it without outside counsel that doesn’t involve having the business unit itself do the investigation. I don’t understand how you would probe these decisions through other means. .... [B]ut where there is a colorable basis that part of the wrongdoing was in the way the investigation itself was conducted, I think it’s very difficult to find those documents by other means. 52 Wal-Mart argues that the Court of Chancery “misconstrued Garner’s ‘necessity’ factor . . . .” Wal-Mart asserts that the Court of Chancery “merely found that [Plaintiff’s] task would be made ‘more difficult’ without the production of such privileged documents.” Wal-Mart’s support for this assertion is one sentence where the Court of Chancery stated that, “where there’s a colorable basis that part of the wrongdoing was in the way the investigation itself was conducted, I think it’s very difficult to find those documents by other means.” However, the entire ruling reflects that the Court of Chancery found IBEW demonstrated that the privileged information sought was “necessary and essential” to one of its proper purposes: I’m going to start with what would ordinarily, I think, be . . . the more sensitive ruling, which is the documents which are actually on the privilege log. 52 Id. at A588-89. 29  In my view, in terms of this 220 action . . . whether these are necessary to the plaintiff’s purpose and not tangential—that’s how I read “necessary and essential.” Necessary and essential, I think just emphasizes because they’re redundant. I mean, usually if something is necessary, I suppose it’s usually essential. But my sense is it’s saying is this the core stuff? Is this out there? 53 Wal-Mart argues that the Court of Chancery “committed legal error by expressly conflating” the Section 220 necessary and essential standard and the Garner good cause standard. In fact, however, the Court of Chancery properly first made the predicate Section 220 finding that the privileged information was necessary and essential before it then applied the Garner doctrine and found that IBEW had demonstrated good cause. This paradigm was exactly in accordance with our holding in Espinoza. Garner also directs a trial judge to analyze “whether the communication is of advice concerning the litigation itself; [and] the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing.”54 The Court of Chancery addressed these factors, as follows: And I think the information is particularized. It’s not just a broad fishing expedition. There are specific documents. And whether the communication is advice concerning the litigation itself, no, this is not after those litigations. So I don’t think it’s trying to get into anybody 53 Id. at A582 (emphasis added). 54 Garner, 430 F.2d at 1104. 30  how to defend against what the plaintiffs are doing. This is during the real-time of Wal-Mart dealing with this thing. 55 With regard to the other Garner good cause factors, the record reflects that disclosure of the material would not risk the revelation of trade secrets (at least it has not been argued by Wal-Mart); the allegations at issue implicate criminal conduct under the FCPA; and IBEW is a legitimate stockholder as a pension fund. Accordingly, the record supports the Court of Chancery’s conclusion that the documentary information sought in the Demand should be produced by Wal-Mart pursuant to the Garner fiduciary exception to the attorney-client privilege. Work-Product Documents Wal-Mart withheld certain documents based on the work-product doctrine, to which the Court of Chancery responded: The work product documents fall out the same way, because the core—you know you have to have this heightened need. Are they really important and urgent to what you’re trying to get at and then the unavailability showing as core to that. For the same reason I mentioned with respect to Garner, I believe the work product doctrine documents also have to give way.56 Wal-Mart argues that the Court of Chancery committed legal error by purportedly applying the Garner doctrine to documents over which Wal-Mart invoked the work-product doctrine. The Garner doctrine applies to information 55 Appendix to Wal-Mart’s Opening Br. at A587. 56 Id. at A590. 31 protected by the attorney-client privilege, but not to work product.57 Instead, pursuant to Court of Chancery Rule 26(b)(3), a party may obtain access to non- opinion work product “upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”58 Wal-Mart asserts that the Court of Chancery erroneously applied Garner, rather than Court of Chancery Rule 26(b)(3), to the work-product issue. A careful reading of the Garner factors demonstrates that they overlap with the required showing under the Rule 26(b)(3) work-product doctrine. One factor under Garner is “the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources.”59 In fact, this Court has utilized the Garner factors in the context of a work-product analysis in the past. 60 When addressing the defendant’s work-product argument in Zirn v. VLI Corp., this Court stated: 57 Saito v. McKesson HBOC, Inc., 2002 WL 31657622, at *11 (Del. Ch. Oct. 25, 2002) (“this Court has held that there is no Garner exception to the work product privilege.”). 58 Ct. Ch. R. 26(b)(3). 59 Garner, 430 F.2d at 1104. 60 See Zirn v. VLI Corp., 621 A.2d 773 (Del. 1993). 32  [We] are satisfied that Zirn has demonstrated “good cause” for production of documents prepared in anticipation of the patent litigation. Of the factors set forth in Garner v. Wolfinbarger, which support the requisite showing of “good cause” that a shareholder must demonstrate to overcome a corporation’s claim of privilege, the following appear present here.61 The Court of Chancery in this case recognized this overlap and utilized the same reasoning for its decision regarding the work-product doctrine. In Grimes v. DSC Communications Corp.,62 the Court of Chancery also discerned the overlap in required showings and overruled a similar work-product claim: “For the same reasons that the plaintiff has shown ‘good cause’ to overcome the claim of attorney-client privilege, I conclude he has also shown a substantial need for the information for purposes of the work-product doctrine.” 63 In this case, the record reflects that the Court of Chancery’s work product ruling was properly and solely based upon Rule 26(b)(3) and only referred to the privilege rationale of Garner as overlapping with its own separate work product analysis. Cross-Appeal IBEW’s first argument in its cross-appeal is that the Court of Chancery should have required Wal-Mart to collect documents from additional custodians. The Court of Chancery found that IBEW waived this argument by not raising it in 61 Id. at 782. 62 724 A.2d 561 (Del. Ch. 1998). 63 Id. at 570. 33 its opening post-trial brief in that court. IBEW concedes its waiver 64 but asks this Court to consider its arguments on the merits. We have concluded that such consideration is not required “in the interests of justice.”65 IBEW’s second argument in its cross-appeal challenges the Court of Chancery’s order requiring IBEW to return to Wal-Mart certain privileged documents that were delivered to IBEW’s counsel by an anonymous source. The record reflects that a number of documents included in the anonymous mailing were publicly available on The New York Times website and a congressional website. Approximately three documents were not publicly available, including one document IBEW wanted to use as evidence that Wal-Mart conducted an inadequate search or previously failed to disclose all relevant documents. Wal-Mart moved to strike all of the Whistleblower Documents, including those available to the public. According to Wal-Mart, these materials were stolen from it by a former employee and had been disseminated without Wal-Mart’s consent. Wal-Mart revealed the name of the former employee it suspected of removing the documents. It also stated that the former employee worked in the IT department and that Wal-Mart had sought an order to keep him from disseminating 64 See, e.g., Emerald Partners v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. Apr. 28, 2003), aff’d, 840 A.2d 641 (Del. 2003) (citations omitted) (finding an argument waived when it was not included in the party’s opening post-trial brief). 65 Supr. Ct. R. 8. 34 further information. Wal-Mart sought the Court of Chancery’s assistance in securing the return of its stolen property from IBEW. The Court of Chancery ruled that the privilege had been lost by Wal-Mart as to certain Whistleblower Documents that had been posted on websites maintained by The New York Times and members of Congress. However, the Court of Chancery applied a conversion theory and held that the remaining Whistleblower Documents—that is, those that have not been published by the media or elected representatives—remain privileged and therefore must be returned to Wal-Mart. The Court of Chancery determined that the anonymous nature of the mailing was strong circumstantial evidence of conversion. The Court of Chancery stated, “I’ll tell you what’s a really strong evidence in favor of that it was unauthorized, is that—did the person who sent it to you identify him or herself?” 66 According to the Court of Chancery, even if the “whistleblower” was in a position of authority, the fact that he or she chose to remain anonymous indicated that they did not have authority to disseminate the information. The Court of Chancery ruled that IBEW had to return the Whistleblower Documents that were not otherwise publicly available. In arriving at its conclusion, the Court of Chancery explained: 66 Appendix to Wal-Mart’s Opening Br. at A449. 35  I look at it as if you have someone else’s stuff and you shouldn’t have that, then you got to give it back. We’re not going to do that in a way where the entire world has the stuff, but the entire world does not have these other documents. So I’m requiring those to be given back and I’m requiring the references to those to be stricken. I don’t believe that the—the defendants—I mean, the company waived anything by proceeding in the way it did. .... Now, it might be a momentary return in a sense that that is certainly without prejudice to any argument in the – on the merits that there are responsive documents that the company didn’t produce. 67 The record reflects that the Court of Chancery properly discharged its equitable discretion in crafting a remedy for Wal-Mart, while still leaving an avenue for IBEW to ultimately obtain the returned Whistleblower Documents. The Court of Chancery’s ruling was made without prejudice and allowed IBEW to address the returned Whistleblower Documents “on the merits that there are responsive documents that the company didn’t produce.” Thus, IBEW may still be entitled to the Whistleblower Documents it has been ordered to return if those documents should have been otherwise disclosed by Wal-Mart within the scope of the information already ordered to be produced by the Court of Chancery. 67 Id. at A479-80. 36  Scope of Relief The Court of Chancery carefully assessed the scope of documents that should have been made available to IBEW. During the colloquy with the parties, the Court of Chancery addressed the number of custodians, the chain of corporate communications, the internal investigation policy, the issue of duplication of documents coming from different sources, and the 30(b)(6) depositions, among other issues. The record supports the Court of Chancery’s conclusion that the documents it ordered to be produced satisfied the necessary and essential standard in the context of this Section 220 case. The Court of Chancery’s ruling is consistent with Saito v. McKesson HBOC, Inc.,68 in which this Court held that, upon meeting the requirements of Section 220, the stockholder “should be given access to all of the documents in the corporation’s possession, custody or control, that are necessary to satisfy that proper purpose.”69 “[W]here a [Section] 220 claim is based on alleged corporate wrongdoing, and assuming the allegation is meritorious, the stockholder should be given enough information to effectively address the problem . . . .”70 Whether or not a particular document is essential to a given inspection purpose is fact specific 68 806 A.2d 113 (Del. 2002). 69 Id. at 115. 70 Id. 37 and will necessarily depend on the context in which the stockholder’s inspection demand arises. In determining that “scope of relief,” our courts must circumscribe orders granting inspection “with rifled precision.”71 Wal-Mart contends that the Final Order was not circumscribed “with rifled precision.” However, “rifled precision” also requires a fact specific inquiry and can only be determined in the context of a specific case. The term “rifled precision” requires the Court of Chancery to make a qualitative analysis of documents demanded. “Rifled precision” is not a quantitative limitation on the stockholder’s right to obtain all documents that are necessary and essential to a proper purpose. 72 In this case, the Court of Chancery understood that “rifled precision” is a qualitative standard and must be applied contextually: “you have to—you actually have to interpret it sensibly and contextually. And in a situation like this, it’s not like you’re talking about a board minute or two.” 73 Wal-Mart argues that “[t]he scope of production ordered by the Chancery Court is unprecedented . . . .” In fact, however, following this Court’s remand in Saito, the Court of Chancery entered an implementing order substantially broader 71 Id. at 117 n.10 (citing Brehm v. Eisner, 746 A.2d 244, 266-67 (Del. 2000)) (emphasis added). 72 See Saito, 806 A.2d 113. 73 Appendix to Wal-Mart’s Opening Br. at A566. 38 in scope than the Final Order entered in this case.74 In Saito, the defendant- corporation appealed the implementing order, and this Court affirmed, holding that the order “was an appropriate implementation of the [stockholder’s] entitlement to discovery established under this Court’s decision in Saito v. McKesson, HBOC, 806 A.2d 113 (Del. 2002),” and involved “no abuse of discretion.” 75 Comparing the order entered in Saito and specifically approved by this Court with the significantly more limited scope of the Final Order entered here, we hold that the Final Order constituted an appropriate exercise of discretion. Conclusion For the reasons set forth in this Opinion, the judgment of the Court of Chancery is AFFIRMED. 74 Compare Saito v. McKesson HBOC, Inc., C.A. No. 18553 (Del. Ch. Sep. 20, 2002) (ORDER), with the Final Order. 75 McKesson Corp. v. Saito, 818 A.2d 970 (Del. 2003) (Table). 39 

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 13a0335p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ X Plaintiffs-Appellants, - GLORIA STRAYHORN, et al., - - - Nos. 12-6195/ 6198/ 6200/ v. , 6203/ 6208/ 6209/ 6210 > - Defendants-Appellees. - WYETH PHARMACEUTICALS, INC., et al., N Appeal from the United States District Court for the Western District of Tennessee at Memphis. Nos. 2:11-cv-02058; 2:11-cv-02059; 2:11-cv-02060; 2:11-cv-02083; 2:11-cv-02095; 2:11-cv-02134; 2:11-cv-02145—S. Thomas Anderson, District Judge. Argued: July 31, 2013 Decided and Filed: December 2, 2013 Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges. _________________ COUNSEL ARGUED: Collyn A. Peddie, LAW OFFICES OF COLLYN PEDDIE, Houston, Texas, for Appellants. Henninger S. Bullock, MAYER BROWN LLP, New York, New York, for Appellees Schwarz and Alaven. Jeffrey F. Peck, ULMER & BERNE LLP, Cincinnati, Ohio, for Appellees Watson, Duramed, PLIVA, and Barr. Richard A. Oetheimer, GOODWIN PROCTER LLP, Boston, Massachusetts, for Appellee TEVA. ON BRIEF: Julie L. Rhoades, MATTHEWS & ASSOCIATES, Houston, Texas, for Appellants. Henninger S. Bullock, Andrew J. Calica, MAYER BROWN LLP, New York, New York, for Appellees Schwarz and Alaven. Kannon K. Shanmugam, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Wyeth Appellees. Jeffrey F. Peck, Linda E. Maichl, Joseph P. Thomas, ULMER & BERNE LLP, Cincinnati, Ohio, Richard A. Oetheimer, GOODWIN PROCTER LLP, Boston, Massachusetts, Irene C. Keyse-Walker, Julie A. Callsen, Michael J. Ruttinger, TUCKER ELLIS LLP, Cleveland, Ohio, Kathleen Kelly, HINSHAW & CULBERTSON LLP, Boston, Massachusetts, Katherine Frazier, BAKER & WHITT, PLLC, Memphis, Tennessee, Daniel J. Herling, KELLER AND HECKMAN LLP, San Francisco, California, Shea Sisk Wellford, MARTIN TATE MORROW & MARTSON, Memphis, Tennessee, Mark S. Cheffo, Rachel B. Passaretti-Wu, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, New York, New York, Albert C. Harvey, THOMASON, HENDRIX, HARVEY, JOHNSON 1 Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 2 6203/ 6208/ 6209/ 6210 et al. & MITCHELL, Memphis, Tennessee, Jonathan I. Price, GOODWIN PROCTER LLP, New York, New York, William F. Sheehan, GOODWIN PROCTER LLP, Washington, D.C., Habib Nasrullah, Kelly A. Laudenslager, WHEELER TRIGG O’DONNELL LLP, Denver, Colorado, for Appellees. GILMAN, J., delivered the opinion of the court, in which GRIFFIN, J., joined and STRANCH, J., joined in part. STRANCH, J. (pp. 40–55), delivered a separate opinion concurring in part and dissenting in part. _________________ OPINION _________________ RONALD LEE GILMAN, Circuit Judge. These seven consolidated cases are among the many that have been filed nationwide against the manufacturers of both the prescription drug Reglan and its generic equivalent, metoclopramide. The plaintiffs allege that they ingested generic metoclopramide and, as a result, developed a serious neurological disorder known as tardive dyskinesia. They filed suit against both the generic and brand-name manufacturers, alleging a wide variety of product-liability claims. The makers of the generic metoclopramide moved to dismiss the claims against them, arguing that all of the plaintiffs’ claims are preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §§ 301-399f, under the Supreme Court decision in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011). And the brand-name manufacturers moved for summary judgment, contending that they are not liable to the plaintiffs because none of the plaintiffs ingested Reglan. The district court granted both motions. For the reasons set forth below, we AFFIRM the judgment of the district court and DENY the plaintiffs’ pending motion to certify a proposed question to the Tennessee Supreme Court. Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 3 6203/ 6208/ 6209/ 6210 et al. I. BACKGROUND A. Factual background The basic facts are undisputed, and the lawsuits filed in the district court for each of the consolidated cases are identical to one another. We will therefore refer to the seven consolidated cases as “the present case.” The manufacturers of Reglan are Alaven Pharmaceuticals LLC; Pfizer, Inc.; Schwarz Pharma, Inc.; Wyeth Pharmaceuticals, Inc.; Wyeth LLC; and Wyeth, Inc. We will refer to these defendants collectively as the Brand-Name Manufacturers. The makers of generic metoclopramide are Actavis Elizabeth LLC; Barr Pharmaceuticals, Inc.; Duramed Pharmaceuticals, Inc.; Generics Bidco I LLC; McKesson Corporation; Mutual Pharmaceutical Co.; Northstar RX, LLC; PLIVA, Inc.; Ranbaxy Pharmaceuticals, Inc.; TEVA Pharmaceuticals USA, Inc.; The Harvard Drug Group; United Research Laboratories, Inc.; and Watson Laboratories, Inc. We will refer to these defendants collectively as the Generic Manufacturers. The district court took the following facts from the plaintiffs’ amended complaint as true for the purpose of ruling on the Generic Manufacturers’ Motion to Dismiss: Reglan is a prescription drug, and metoclopramide is its generic bioequivalent. (Am. Compl. ¶ 6.) Reglan and metoclopramide’s product labeling recommends them for use as short-term therapies for symptomatic gastroesophageal reflux—heartburn—and acute and recurrent diabetic gastric stasis—bloating. (Id. ¶ 13.) The labels recommend therapy for up to twelve weeks in adults for heartburn, but they did not contain a durational limit for bloating. (Id. ¶ 14.) At no time have Reglan or metoclopramide been shown to be either efficacious or safe when used for long-term treatment. (Id. ¶ 15.) Reglan and metoclopramide affect the brain’s movement center, typically causing involuntary, repetitive movements. (Id. ¶ 7.) Overuse of Reglan and metoclopramide can result in extra-pyramidal symptoms including, but not limited to, tardive dyskinesia, dystonia, and akathisia, Parkinsonism, and Reglan-induced tremors. (Id. ¶ 8.) Reglan and metoclopramide have also been associated with central nervous system disorders, depression with suicidal ideation, visual disturbances, and Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 4 6203/ 6208/ 6209/ 6210 et al. memory loss. (Id.) Tardive dyskinesia, dystonia, and akathisia are serious neurological movement disorders resulting in involuntary and uncontrollable movements of the head, neck, face, arms, or truck [sic], as well as involuntary facial grimacing and tongue movements, including tongue thrusting, tongue chewing, extreme anxiety, and restlessness or other involuntary movements. (Id. ¶ 9.) These disorders have no known cure. (Id. ¶ 10.) Patients using Reglan or metoclopramide for longer periods of time are at an “unreasonably dangerous increased risk of developing one or more severe and permanent neurological movement disorders, significantly and substantially greater than disclosed or suggested in the product labeling for the drug or in any other materials disseminated by the defendants to either the medical community or the public.” (Id. ¶ 16.) Ordinary consumers would not appreciate the risk of developing one or more incurable severe neurological movement disorders when taking Reglan or metoclopramide as discussed above. (Id. ¶ 17.) Similarly, a prudent manufacturer would not market Reglan or metoclopramide due to the risk of severe and permanent neurological movement disorders and the availability of less dangerous alternative treatments. (Id. ¶ 18.) Reglan is the reference listed drug (“RLD”) in abbreviated new drug applications (“ANDAs”) for generic versions of metoclopramide. (Id. ¶ 25.) ANDAs for new drugs must disclose to the Food and Drug Administration (“FDA”) the drug’s chemistry, pharmacology, and other matters, including its proposed labeling. (Id. ¶ 26.) For the FDA to approve a drug’s ANDA, its ANDA must include proposed labeling which discusses data and information about the risks and side effects of the drug, the drug’s test results, results of animal studies, results of clinical studies, and the drug’s bioavailability, all of which enable physicians or other foreseeable prescribers to use the drug safely. (Id.) Federal law requires the owner of an FDA-approved ANDA to ensure that the drug’s labeling remains accurate and adequate, to conduct safety surveillance for adverse drug effects, and to periodically report to the FDA data related to the safety of the drug or the accuracy of its label. (Id. ¶ 27.) The FDA has not approved Reglan and metoclopramide for long-term or pediatric use. (Id. ¶ 28.) The Amended Complaint contains three categories of claims: those against the Brand Name Defendants, the Generic Defendants, and all Defendants. . . . Plaintiffs allege that all Defendants knew or should have known that most physicians did not know or fully appreciate the seriousness of the risks associated with Reglan or metoclopramide. (Id. ¶ 31.) Moreover, all Defendants knew that physicians commonly prescribed the drug for inappropriate long term and pediatric use, as well Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 5 6203/ 6208/ 6209/ 6210 et al. as short term use for certain adults. (Id.) Thus, all Defendants “should have known that the Physician’s Desk reference monograph for Reglan and the package inserts for Reglan and metoclopramide were deficient, inaccurate, [or] false and misleading in communicating [information] to the medical community in general, to physicians, or to the public.” (Id.) Plaintiffs allege that all Defendants “failed to adequately inform physicians and misled [them] about the risks associated with their metoclopramide drug products.” (Id. ¶ 33.) Plaintiffs aver that all Defendants “knew or . . . should have known that the labeling for Reglan and generic metoclopramide substantially understated the frequency of acute and long term side effects of the drug.” (Id. ¶ 35.) Thus, all Defendants “failed to use reasonable care to ascertain or communicate to physicians or to the public information that would constitute adequate and effective warnings.” (Id.) Additionally, all Defendants knew through their own studies or “publicly available published literature” that doctors commonly prescribed metoclopramide for longer than twelve weeks, for pediatric use, or in other unsafe situations. (Id. ¶ 37.) All Defendants also knew that their “individual and collective failure to communicate [information] to the medical community . . . about the risks of long term and other metoclopramide therapy would . . . likely . . . result in serious injury.” (Id. ¶ 38.) Defendants failed to adequately communicate this information and failed to exercise due care to ensure that their warnings were effectively communicated; Defendants also had a duty to adequately communicate these warnings. (Id. ¶ 38–39.) All Defendants breached this duty in a number of ways. (Id. ¶ 40a–40g.) Moreover, all Defendants “failed to make reasonable efforts to ensure that accurate and adequate information regarding metoclopramide was provided to the medical community” and consumers or “to inform the FDA of the need for changes to its label.” (Id. ¶ 48.) The Amended Complaint also contains facts related directly to the Generic Defendants’ “failure to communicate adequate warnings.” (Id. at 22.) The Food, Drug, and Cosmetic Act (“FDCA”) requires a generic drug’s ANDA to include proposed labeling identical to the brand-name RLD in all material respects. (Id. ¶ 43.) Accordingly, the Generic Defendants submitted ANDAs for metoclopramide containing labels identical to the FDA-approved label for Reglan. (Id. ¶ 44.) The Generic Defendants had several duties, including the duty to ensure that their metoclopramide labels contained accurate information regarding the drug’s intended uses and other common uses, to conduct post-market safety surveillance, to review adverse drug event information, to make timely revisions to the labels after revisions were made to the RLD label, and to ensure that information regarding the drug’s safety was Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 6 6203/ 6208/ 6209/ 6210 et al. communicated to the medical community and consumers. (Id. ¶ 46.) The Generic Defendants were also required to effectively communicate the labels and their warnings to physicians and patients. (Id.) Plaintiffs allege that the Generic Defendants violated these duties in a number of ways, including by failing to “actually and effectively communicate” the labels and their warnings, to properly evaluate and understand how physicians and patients were using metoclopramide, to properly research, test, and market metoclopramide, to periodically review all medical literature, to independently monitor metoclopramide sales to alert them that it was widely overprescribed due to inadequate warnings, and to engage in marketing practices designed to minimize the risks associated with metoclopramide. (Id. ¶ 47a–47f.) On February 26, 2009, the FDA exercised its new agency powers and ordered all Defendants to add a black box warning to Reglan’s label. (Id. ¶ 49.) This new warning—the strongest available under FDA regulations—highlighted the “high risk of tardive dyskinesia with long term, high dose, or pediatric use of metoclopramide, even after the drugs are no longer taken.” (Id.) The FDA also required all Defendants to create a Risk Evaluation and Mitigation Strategy to ensure that they communicated information regarding the risks associated with metoclopramide directly to the consumers of the drug. (Id. ¶ 50.) Plaintiffs allege that prior to 2007, when the FDA did not have the authority to demand such action from drug companies, all Defendants knew that the metoclopramide and Reglan warnings were insufficient, but they “did nothing to communicate accurate information to individuals prescribing and consuming metoclopramide.” (Id. ¶ 51.) Plaintiffs aver that they were injured due to overexposure to Reglan or metoclopramide caused by all Defendants’ failure “to monitor the safety of their drug products, to provide accurate and complete information to the FDA, to use reasonable means to correct inaccuracies appearing in their labels, to communicate to the medical community, physicians, Plaintiffs’ physicians, Plaintiffs[,] and other foreseeable users of the drug adequate warnings about risks associated with common and foreseeable uses of their metoclopramide products.” (Id. ¶ 54.) “Concurrently, Plaintiffs’ injuries came about as a foreseeable and proximate result of [all D]efendants’ inaccurate, misleading, materially incomplete, and otherwise false information concerning the potential effects of exposure to the drug substance metoclopramide and the ingestion of metoclopramide products manufactured and sold by [all] Defendants.” (Id.) Strayhorn v. Wyeth Pharm., Inc., 887 F. Supp. 2d 799, 804-806 (W.D. Tenn. 2012) (alterations other than [sic] in original). Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 7 6203/ 6208/ 6209/ 6210 et al. In a separate order granting summary judgment to the Brand-Name Manufacturers, the district court noted an additional material fact not in dispute by the parties: “Plaintiffs in this case never took Reglan; rather, they ingested only generic metoclopramide manufactured by companies other than [the] Brand Name Defendants.” Strayhorn v. Wyeth Pharm., Inc., 882 F. Supp. 2d 1020, 1025 (W.D. Tenn. 2012). B. Procedural background In November 2011, after the Supreme Court’s decision in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), the plaintiffs filed amended complaints, all of which are identical. The Generic Manufacturers moved to dismiss the amended complaints, arguing that the plaintiffs’ various claims boiled down to the single claim that the Generic Manufacturers had failed to provide adequate warnings to medical professionals about the dangers of long-term use of metoclopramide. These defendants argued that, under Mensing, state-law failure-to-warn claims against generic drug manufacturers are preempted because federal law prohibits generic manufacturers from unilaterally altering their warning labels; therefore, generic manufacturers cannot simultaneously comply with both federal and state law. The district court agreed that Mensing controlled. It concluded that the plaintiffs had abandoned their claims for unfair and deceptive trade practices/conspiracy and for unjust enrichment, and further determined that all of the plaintiffs’ other claims against the Generic Manufacturers were essentially failure-to-warn claims preempted under Mensing. The plaintiffs do not challenge the court’s determination regarding those claims deemed abandoned, but they do challenge the dismissal of all of their other claims. The Brand-Name Manufacturers separately moved for summary judgment on the ground that the Tennessee Products Liability Act, Tenn. Code Ann. §§ 29-28-101 et seq. (TPLA), allows for recovery solely against the manufacturer or the seller of the product actually causing the harm. Because the plaintiffs did not ingest Reglan, but only generic metoclopramide, the Brand-Name Manufacturers argued that they could not be held Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 8 6203/ 6208/ 6209/ 6210 et al. liable. Agreeing with the Brand-Name Manufacturers, the district court granted summary judgment in their favor. II. ANALYSIS A. Standard of review 1. Motion to dismiss To survive a motion to dismiss for failure to state a claim, a complaint must allege sufficient facts that, accepted as true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When determining facial plausibility, the court must construe the complaint in the light most favorable to the plaintiff. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The district court’s grant of a motion to dismiss is reviewed de novo. Paige v. Coyner, 614 F.3d 273, 277 (6th Cir. 2010). 2. Motion for summary judgment Summary judgment is proper when “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 considering a motion for summary judgment, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue 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 of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). We review de novo a district court’s grant of summary judgment. Huckaby v. Priest, 636 F.3d 211, 216 (6th Cir. 2011). Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 9 6203/ 6208/ 6209/ 6210 et al. B. Claims against the Generic Manufacturers Our analysis of the claims against the Generic Manufacturers is guided by two recent decisions of the United States Supreme Court: PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), and Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013). We will therefore begin with a detailed discussion of these two decisions. 1. PLIVA, Inc. v. Mensing In Mensing, which involved consolidated appeals from decisions by the Fifth and Eighth Circuits, the Supreme Court held that state-law failure-to-warn claims against generic manufacturers of metoclopramide are preempted by federal law. The Court first noted that the Louisiana and Minnesota tort laws at issue “require a drug manufacturer that is or should be aware of its product’s danger to label that product in a way that renders it reasonably safe.” Mensing, 131 S. Ct. at 2573. Federal law, on the other hand, imposes different requirements. A brand-name manufacturer must prove that its proposed drug is “safe and effective and that the proposed label is accurate and adequate,” which occurs by way of clinical testing. Id. at 2574. But under the 1984 Drug Price Competition and Patent Term Restoration Act, 98 Stat. 1585 (popularly known as the Hatch-Waxman Amendments to the FDCA), generic drugs may be approved if their active ingredients are equivalent to a reference listed drug (RLD)—generally a brand-name drug—that has already been approved by the FDA. Generic drugs’ proposed labels must be “the same as the labeling approved for the brand-name drug” in order to gain approval by the FDA. Id. (brackets and internal quotation marks omitted). The issue was therefore whether “it was impossible” for generic drug manufacturers to simultaneously comply with both state and federal labeling laws. Id. at 2578. Although the plaintiffs in Mensing argued that generic manufacturers could unilaterally change their labels under the FDA’s “changes-being-effected” (CBE) process, which permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety, the FDA contended that the CBE process could not be Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 10 6203/ 6208/ 6209/ 6210 et al. used by generic manufacturers in this manner. This is because the FDA “interprets the CBE regulation to allow changes to generic drug labels only when a generic drug manufacturer changes its label to match an updated brand-name label or to follow the FDA’s instructions.” Id. at 2575. Nor could the generic manufacturers have used “Dear Doctor” letters to send warnings to healthcare professionals because, according to the FDA, such letters are considered “labeling” and must match the prescription drug’s approved labeling. Id. at 2576. The Supreme Court acknowledged that “[h]ad Mensing and Demahy taken Reglan, . . . Wyeth [v. Levine, 555 U.S. 555 (2009),] would control and their lawsuits would not be pre-empted.” Id. at 2581. In Levine, the Supreme Court held that state-law failure-to-warn claims against a brand-name manufacturer are not preempted by federal law because such manufacturers have the capability of complying with both state and federal law. 555 U.S. at 571. The Mensing Court noted that, from the plaintiffs’ perspective, “finding pre-emption [in Mensing] but not in Wyeth makes little sense.” Mensing, 131 S. Ct. at 2581. Despite the apparent unfairness of the result, the Court rested its decision on the fact that “the federal statutes and regulations that apply to brand-name drug manufacturers are meaningfully different than those that apply to generic drug manufacturers.” Id. at 2582. It further commented that the unique regulation of generic drugs has allowed the generic-drug industry to flourish and has brought cheaper drugs to the market. Id. The Court declined to “decide whether the statutory scheme established by Congress is unusual or even bizarre,” noting that “Congress and the FDA retain the authority to change the law and regulations if they so desire.” Id. (internal quotation marks omitted). 2. Mutual Pharmaceutical Co. v. Bartlett The Supreme Court recently reaffirmed Mensing in Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013). Bartlett took sulindac, a generic nonsteroidal anti- inflammatory drug. She developed toxic epidermal necrolysis, a condition in which the skin deteriorates or turns into an open wound. Bartlett sued the manufacturer of generic Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 11 6203/ 6208/ 6209/ 6210 et al. sulindac in New Hampshire, asserting failure-to-warn and design-defect claims. New Hampshire’s strict-liability regime imposes a duty on manufacturers “to ensure that the drugs they market are not unreasonably unsafe.” Bartlett, 133 S. Ct. at 2470. On appeal, the First Circuit affirmed the jury’s finding of liability and its award of $21 million in damages to Bartlett. In concluding that Bartlett’s design-defect claim was not preempted under Mensing, the First Circuit reasoned that the generic manufacturer “could simply choose not to make the drug at all and thus comply with both federal and state law.” Id. at 2472 (internal quotation marks omitted). The Supreme Court reversed. It first noted that “New Hampshire’s design-defect cause of action imposes affirmative duties on manufacturers,” including the “duty to design [a] product reasonably safely for the uses which [the manufacturer] can foresee.” Id. at 2473 (internal quotation marks omitted). Specifically, design-defect liability is imposed in New Hampshire when “the design of the product create[s] a defective condition unreasonably dangerous to the user.” Id. at 2474 (internal quotation marks omitted). A product is unreasonably dangerous under the New Hampshire Supreme Court’s “risk-utility approach” “if the magnitude of the danger outweighs the utility of the product.” Id. This inquiry balances the usefulness and desirability of the product to the public as a whole, whether the risk of danger could have been reduced without significantly affecting either the product’s effectiveness or manufacturing cost, and the presence and efficacy of a warning to avoid an unreasonable risk of harm from hidden dangers or from foreseeable uses. Id. at 2475 (internal quotation marks omitted). The Supreme Court reasoned that the first two factors (increasing the usefulness and desirability of the product and reducing the risk of harm) would require redesign of the product, which is not possible under FDA regulations that require generic drugs to have the same active ingredients as brand-name drugs. Redesign of the product was also not possible because sulindac is a one-molecule drug. Therefore, “the only way for [the generic manufacturer] to ameliorate the drug’s ‘risk-utility’ profile—and thus to escape Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 12 6203/ 6208/ 6209/ 6210 et al. liability [under New Hampshire law]—was to strengthen ‘the presence and efficacy’” of the drug’s warning. Id. But the warnings provided for a generic drug must be the same as the warnings found in the labeling approved for the brand-name drug in order to gain approval by the FDA. Mensing, 131 S. Ct. at 2574. As a result, the generic manufacturer could not possibly comply with both state and federal laws. Bartlett, 133 S. Ct. at 2477. In reaching this conclusion, the Supreme Court rejected the First Circuit’s “stop- selling” rationale as a basis for finding that the generic manufacturer could comply with both state and federal laws, stating that the Court’s “pre-emption cases presume that an actor seeking to satisfy both his federal- and state-law obligations is not required to cease acting altogether to avoid liability.” Id. at 2477. Such a narrow reading would render the impossible-to-comply preemption doctrine “all but meaningless.” Id. (internal quotation marks omitted). “Adopting the First Circuit’s stop-selling rationale would mean that . . . the vast majority—if not all—of the cases in which the Court has found impossibility pre-emption[] were wrongly decided.” Id. at 2478. The Court therefore held that “state-law design-defect claims that turn on the adequacy of a drug’s warnings are pre-empted by federal law under [Mensing].” Id. at 2470. Perhaps acknowledging that its preemption jurisprudence might be viewed as unjust because it bars plaintiffs from recourse against generic manufacturers, the Court stated: Suffice to say, the Court would welcome Congress’ “explicit” resolution of the difficult pre-emption questions that arise in the prescription drug context. That issue has repeatedly vexed the Court—and produced widely divergent views—in recent years. . . . [T]he FDCA’s treatment of prescription drugs includes neither an express pre-emption clause (as in the vaccine context, 42 U.S.C. § 300aa–22(b)(1)), nor an express non-pre-emption clause (as in the over-the-counter drug context, 21 U.S.C. §§ 379r(e), 379s(d)). In the absence of that sort of “explicit” expression of congressional intent, we are left to divine Congress’ will from the duties the statute imposes. Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 13 6203/ 6208/ 6209/ 6210 et al. Id. at 2480. This invitation for congressional action echoes the one in Mensing. See 131 S. Ct. at 2582. 3. Failure-to-warn claims The relevant preemption question after Mensing is whether a generic manufacturer can simultaneously comply with both its state and federal duties. See id. at 2577. Mensing considered Louisiana and Minnesota laws that “require a drug manufacturer that is or should be aware of its product’s danger to label that product in a way that renders it reasonably safe.” Id. at 2573. Louisiana law states that “a manufacturer’s duty to warn includes a duty to provide adequate instructions for safe use of a product.” Id. (internal quotation marks omitted). Minnesota law similarly states that “where the manufacturer . . . of a product has actual or constructive knowledge of danger to users, the . . . manufacturer has a duty to give warning of such dangers.” Id. (internal quotation marks omitted) (alterations in original). That is, “[i]n both States, a duty to warn falls specifically on the manufacturer.” Id. In the two consolidated cases before the Supreme Court, the parties admitted that if the generic manufacturers knew of a danger associated with their product that their labels did not adequately warn of, then they were obligated under state law to “use [] different, safer label[s].” Id. at 2574. The plaintiffs in the present case read Mensing narrowly and argue that the Supreme Court’s decision was based on the fact that Louisiana and Minnesota laws “would require a manufacturer to actually change the content of its label”—that is, “provide different, additional warnings.” They further contend that, under Mensing, only claims “based on the adequacy of the information contained in the drug’s label” are preempted, not claims based on “a manufacturer’s duty to provide a warning” beyond the label. The Generic Manufacturers, they argue, “could have sought FDA approval for a labeling change, or they could have notified health care professionals by other means, or could have ceased selling their products but chose not to do so.” In particular, they argue that the Generic Manufacturers, on their own initiative, could have distributed “Dear Health Care Professional” or “Dear Doctor” letters to medical professionals to Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 14 6203/ 6208/ 6209/ 6210 et al. warn them of the dangers of metoclopramide that were not adequately communicated on the drug’s label. Finally, they argue that generic manufacturer PLIVA failed to update its labels to include information found on the labels of Reglan as of 2004. The plaintiffs’ narrow reading of Mensing has been soundly rejected by all circuits to consider the argument. These circuits have interpreted Mensing to broadly preempt claims that are, at their core, claims that the generic manufacturer failed to provide additional warnings beyond that which was required by federal law of the brand- name manufacturers. See Schrock v. Wyeth, LLC, 727 F.3d 1273, 1287-90 (10th Cir. 2013) (holding that federal law preempts breach-of-warranty claims premised on a theory that generic manufacturers provided improper descriptions or warnings); Guarino v. Wyeth, LLC, 719 F.3d 1245, 1247-49 (11th Cir. 2013) (holding that the plaintiff’s state-law claims against the generic manufacturer for not “adequately warn[ing] medical providers of the risks associated with long-term use of metoclopramide” were all claims “premised upon an allegedly inadequate warning” and therefore preempted under Mensing); Bell v. Pfizer, Inc., 716 F.3d 1087, 1095-96 (8th Cir. 2013) (rejecting the plaintiff’s argument that Mensing’s preemption analysis “applies only to allegations that a generic manufacturer should have unilaterally changed the content of its metoclopramide label,” finding this to be an “unduly narrow view of Mensing” and holding that the plaintiff’s claims for negligence and misrepresentation under the Arkansas Product Liability Act were “preempted failure to warn claims” (emphasis omitted)); Morris v. PLIVA, Inc., 713 F.3d 774, 777 (5th Cir. 2013) (per curiam) (holding that “Mensing forecloses such [failure-to-communicate] claims because failure to ‘communicate’ extends beyond just a label change” and includes “affirmative steps to alert consumers, doctors, or pharmacists of changes in the drug label,” actions that the generic manufacturer is prohibited from taking unilaterally under federal law); see also Gaeta v. Perrigo Pharm. Co., 469 F. App’x 556 (9th Cir. 2012), aff’g 562 F. Supp. 2d 1091 (N.D. Cal. 2008) (granting summary judgment in favor of the generic manufacturer of over-the-counter ibuprofen because the plaintiff’s state-law claims for negligence, breach of express warranty, and breach of implied warranty based on an inadequate Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 15 6203/ 6208/ 6209/ 6210 et al. warning were preempted). Furthermore, the plaintiffs conceded at oral argument that the majority of their claims do not survive after Bartlett. We may not, of course, rest our holding on such broad language from other circuits, but must evaluate the plaintiffs’ claims in light of Tennessee law. As the district court correctly noted, [t]he TPLA governs products liability actions in Tennessee and defines “product liability action[s]” as “all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packing, or labeling of any product.” The TPLA also encompasses several different theories of products liability: “strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent; or under any other substantive legal theory in tort or contract whatsoever.” Strayhorn v. Wyeth Pharm., Inc., 887 F. Supp. 2d 799, 813 (W.D. Tenn. 2012) (internal footnotes omitted). The TPLA governs all of the plaintiffs’ claims because the claims were brought for or on account of personal injury resulting from the design, warning, instruction, marketing, packaging, and labeling of metoclopramide. See, e.g., Richardson v. GlaxoSmithKline, 412 F. Supp. 2d 863, 868 (W.D. Tenn. 2006) (stating that although the plaintiff’s complaint for personal injuries against a drug manufacturer under the theories of negligence, strict liability, and breach of warranty “does not cite the specific basis for his allegations, product liability suits in Tennessee are governed by the Tennessee Products Liability Act”). A manufacturer or seller of a product in Tennessee “shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105(a). Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 16 6203/ 6208/ 6209/ 6210 et al. Under the TPLA, a product is deemed defective when it is in a condition “that renders it unsafe for normal or anticipatable handling and consumption.” Id. § 29-28- 102(2). In contrast, a product is considered unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or [if] the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition. Id. § 29-28-102(8). The TPLA provides two tests to determine whether a product is unreasonably dangerous: the consumer-expectation test and the prudent-manufacturer test. Under the consumer-expectation test, a product is deemed unreasonably dangerous if it would be “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Ray by Holman v. Bic Corp., 925 S.W.2d 527, 530 (Tenn. 1996) (internal quotation marks omitted). “[T]he prudent manufacturer test,” on the other hand, “requires proof about the reasonableness of the manufacturer or seller’s decision to market a product assuming knowledge of its dangerous condition.” Id. at 531. The two tests are not mutually exclusive; either or both might be applicable to cases where the product is alleged to be unreasonably dangerous, but “the prudent manufacturer test will often be the only appropriate means for establishing the unreasonable dangerousness of a complex product about which an ordinary consumer has no reasonable expectation.” Id. With respect to the duty to warn, the Tennessee Supreme Court has stated that [m]anufacturers of prescription drugs, like the manufacturers of any other unavoidably dangerous product, have a duty to market and distribute their products in a way that minimizes the risk or danger. They may discharge their duty by distributing the drugs with proper directions and adequate warnings to those who foreseeably could be injured by the use of their products. . . . Warnings concerning prescription drugs generally are adequate when they contain a full and complete disclosure of the Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 17 6203/ 6208/ 6209/ 6210 et al. potential adverse reactions to the drug. A reasonable warning not only conveys a fair indication of the dangers involved, but also warns with the degree of intensity required by the nature of the risk. Pittman v. Upjohn Co., 890 S.W.2d 425, 428, 429 (Tenn. 1994). Tennessee law thus appears to track the laws of Louisiana and Minnesota discussed in Mensing, which impose a similar duty on the manufacturer to warn of known dangers associated with its product. See PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2573-74 (2011). In the present case, the plaintiffs essentially argue that the Generic Manufacturers have a duty to warn under state law, ignoring the limitations imposed on that duty by the federal labeling requirements. See Am. Compl. Count I - Strict Liability, ¶ 57 (“Each of the . . . defendants is liable under the common law and/or Product Liability Act for . . . failure to give adequate warnings and/or to effectively communicate adequate warnings . . . bearing on the . . . foreseeable uses of the specific metoclopramide product . . . .); Count III - Negligence, ¶ 87b (“[Defendants] failed to use ordinary care in marketing, labeling, and communicating adequate warnings about their respective products . . . .); Count V - Fraud, Misrepresentation, and Suppression, ¶ 99 (“Defendants are liable [for] willful and fraudulent misrepresentations to physicians[] regarding the safety, efficacy, and risk/benefit ratio” of the drugs); Count VII - Breach of Express and Implied Warranties, ¶ 123 (“[Defendants] fail[ed] to deliver products that were safe for their intended uses . . . in light of the substantially greater risk of dangerous side effects associated with its ordinary and expected uses . . . than disclosed and warranted in the product label and/or other advertising and promotional representations.”); Count XI - Civil Conspiracy, ¶ 153 (“Defendants acted with a common purpose to intentionally and/or fraudulently withhold information from the medical community and physicians regarding the safety of” the drugs). A few recent decisions have permitted claims similar to these to go forward. Two such decisions were issued on the same day by the Pennsylvania Superior Court in Hassett v. Dafoe, 74 A.3d 202 (Penn. Super. Ct. 2013), and in In re Reglan/Metoclopramide Litig., — A.3d —, 2013 WL 3874905 (Penn. Super. Ct. July 29, Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 18 6203/ 6208/ 6209/ 6210 et al. 2013). The majority opinion in both cases discounted “the tsunami of [federal] cases applying Mensing to pre-empt virtually all state tort claims against generic manufacturers,” criticizing those decisions for their general failure to explicitly identify “state law duties associated with various causes of action” and explain “how they conflict with federal law.” Hassett, 74 A.3d at 211-12 (internal quotation marks omitted). In particular, the Pennsylvania court majority discussed claims for breach of express and implied warranties and for fraud and misrepresentation. It stated that the claims for breach of express and implied warranties sought to impose liability “for failing to deliver products that conformed to the properties described in the label and promotional materials,” and that such claims were “not premised on the inadequacy of the label but rather on the product’s failure to live up to or conform to its label and advertising.” Id. at 215. Advertising and promotional materials did not fall into the FDCA’s definition of “labeling,” the majority further reasoned. Id. The claims were therefore not deemed preempted. With respect to the fraud and misrepresentation claims, the majority found that these claims were also not preempted because the plaintiff pled that the generic manufacturers fraudulently misrepresented the safety of the drugs “in their advertising and promotional materials, not just [on] their labels.” Id. Although the Pennsylvania court majority criticized the federal courts for not engaging in a nuanced comparison of federal and state duties, the dissent pointed out that the majority “offer[ed] virtually no state statutory or caselaw . . . in support of its conclusion that Appellees have presented allegations of state law tort claims which survive preemption.” Id. at 220 (Platt, J., concurring in part and dissenting in part). We are obviously not bound by the majority opinion of the Pennsylvania Superior Court, and the omission pointed out by the dissent undermines the persuasive force of these outlier cases. Moreover, we reject as unpersuasive the Pennsylvania Superior Court’s reasoning that breach-of-warranty claims avoid federal preemption to the extent that they Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 19 6203/ 6208/ 6209/ 6210 et al. are “not premised on the inadequacy of the label but rather on the product’s failure to live up to or conform to its label and advertising.” Hassett, 74 A.3d at 215. Under the FDCA, “labeling” embraces “all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.” 21 U.S.C. § 321(m). The Supreme Court has held that the first clause “clearly embraces advertising or descriptive matter that goes with the package in which the articles are transported.” Kordel v. United States, 335 U.S. 345, 349-50 (1948). With respect to the second clause, “[o]ne article or thing is accompanied by another when it supplements or explains it. . . . No physical attachment one to the other is necessary.” Id. Furthermore, the Code of Federal Regulations includes brochures, booklets, mailings, catalogues, films, sound recordings, and literature, among other things, in the definition of “labeling.” 21 C.F.R. § 202.1(l)(2). Such labeling must be consistent with the drug’s approved labeling. 21 C.F.R. § 201.100(d)(1); see also 21 C.F.R. § 202.1(e)(4) (prohibiting advertisements that “recommend or suggest” any use that is not in the labeling approved by the FDA). Because such advertising and promotional materials are considered labeling, and because labeling is limited by federal law to the information contained in the brand-name drug’s labeling, all of the warranty claims against the Generic Manufacturers based on these materials are preempted under Mensing. This follows from the fact that the Generic Manufacturers cannot meet their alleged state-law duty to provide an adequate warning without violating their federal duty of conformity to the Reglan label. See PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577-78 (2011). Somewhat closer to home are two recent decisions by the Eighth Circuit Court of Appeals, which remanded design-defect and breach-of-warranty claims for reconsideration. One of these decisions is Bell v. Pfizer, 716 F.3d 1087 (8th Cir. 2013), where the court determined that the “vast majority” of Bell’s allegations were essentially “preempted failure to warn claims” based on inadequate warning or labeling, but it remanded for reconsideration the design-defect and breach-of-implied-warranty claims that appeared not to be based on the warnings. Id. at 1096. The district court had simply Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 20 6203/ 6208/ 6209/ 6210 et al. construed all the claims as failure-to-warn claims and had not analyzed whether the plaintiffs “adequately state[d] viable claims under Arkansas law” or whether the claims were barred by “impossibility preemption.” Id. And in Fullington v. Pfizer, 720 F.3d 739 (8th Cir. 2013), the Eighth Circuit remanded the plaintiff’s design-defect claim for reconsideration in light of Bartlett because, under Arkansas’s consumer-expectation test, “it [was] not immediately clear” whether generic drug manufacturers in that state could “somehow alter an otherwise unreasonably dangerous drug” without running afoul of federal law. Id. at 747. In the present case, we find no similar inadequacy of analysis by the district court. We also conclude, unlike the Eighth Circuit in Bell and Fullington, that the plaintiffs’ implied-warranty claims boil down to the failure to give additional warnings. The plaintiffs allege that the Generic Manufacturers “fail[ed] to deliver products that were safe for their intended uses, including long term metoclopramide therapy, in light of the substantially greater risk of dangerous side effects associated with its ordinary and expected uses, including long term therapy, than disclosed and warranted in the product label and/or other advertising and promotional materials.” Am. Compl. ¶ 123. These claims are clearly based on the alleged inadequacy of the warnings given. Before further analyzing the plaintiffs’ implied-warranty claims, we note that their express-warranty claims are without merit because the labels never explicitly warranted that metoclopramide was safe for long-term use. In fact, the plaintiffs do not allege that the Generic Manufacturers ever made such an affirmative representation; they instead allege that the labeling failed to strongly warn that the product was not appropriate for such use. See Am. Compl. ¶¶ 13-15 (“The ‘indications’ (recommended uses) listed in the product labeling for Reglan/metoclopramide include adult short-term therapy . . . for up to twelve (12) weeks in adults, for gastroesophogeal reflux (heartburn), and specified no durational limit in therapy for gastric stasis or gastroparesis (bloating). . . . [But the drug has never] been shown to be either efficacious or safe when used for long term treatment.”); ¶¶ 33-34 (“The defendants failed to adequately inform physicians . . . about the risks associated with . . . metoclopramide . . . [and therefore] Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 21 6203/ 6208/ 6209/ 6210 et al. Plaintiffs’ physicians did not know or appreciate fully the risks of side affects associated with the use, particularly with the long term use, of the drug.”) In order to establish a prima facie claim for breach of express warranty in Tennessee, a plaintiff must prove that: (1) the seller made an affirmation of fact intending to induce the buyer to purchase the goods, (2) the buyer was in fact induced by the seller’s acts, and (3) the affirmation of fact was false regardless of the seller’s knowledge of the falsity or intention to create a warranty. Coffey v. Dowley Mfg., Inc., 187 F. Supp. 2d 958, 969 (M.D. Tenn. 2002), aff’d, 89 F. App’x 927 (6th Cir. 2003). The plaintiffs’ allegations in the present case do not identify any affirmation of fact made on the product labeling that they allege to be false; rather, they allege that the labeling was inadequate. We thus find no merit in their express-warranty claims. The plaintiffs’ implied-warranty claims under Tenn. Code Ann. § 47-2-314 fare no better because they are entirely premised on a failure-to-warn theory. In particular, the plaintiffs do not allege that the generic metoclopramide they took was ineffective for treating the gastrointestinal conditions for which it was prescribed; only that it was unsafe when used long-term because of the drug’s dangerous side effects. See Am. Compl. ¶ 15. Any long-term use, they further allege, was due to the Generic Manuacturers’ failure to warn about the consequences of such use. Id. ¶ 31. Indeed, the plaintiffs allege that the Generic Manufacturers delivered products that were “[un]safe for their intended uses . . . in light of . . . the product label and/or other advertising or promotional representations.” Id. ¶ 123 (emphasis added). In order to escape liability for such an alleged defect, the Generic Manufacturers would have had to give a stronger warning than they were permitted to give under federal law. But such implied-warranty claims are preempted by both Mensing and Bartlett. To the extent that the plaintiffs allege that the Generic Manufacturers should have unilaterally changed the label to reflect any danger posed by long-term use of the drug, this claim is clearly preempted. See PLIVA, Inc. v. Mensing, 131 S. Ct 2567, 2578 (2011). And to the extent that the plaintiffs allege that the drug itself should have been Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 22 6203/ 6208/ 6209/ 6210 et al. modified to conform to the properties described in the label, generic manufacturers are prohibited by their federal duty of sameness from designing their drugs differently from the RLD. See Mut. Pharm. Co. v. Bartlett, 133 S. Ct. 2466, 2475 (2013) (noting that “the FDCA requires a generic drug to have the same active ingredients, route of administration, dosage form, strength, and labeling as the brand-name drug on which it is based”). When a generic manufacturer cannot obey federal law without being held liable under a state-law warranty action, the state action is preempted. See Mensing, 131 S. Ct. at 2577. Our conclusion is consistent with this court’s previous decision in Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011), cert. denied, 132 S. Ct. 2103 (2012), which affirmed the district court’s determination that the plaintiffs’ state-law claims—centering on a failure to warn under Kentucky law that included claims for breach of implied warranty—were preempted. We further note that Kentucky’s implied-warranty regime is substantially the same as that of Tennessee. Compare Ky. Rev. Stat. § 355.2-314 with Tenn. Code Ann. § 47-2-314. To not find preemption in the present case would require us to disregard this court’s binding precedent. Nor does the Pennsylvania Superior Court’s evaluation of the fraud and misrepresentation claims in Hassett help the plaintiffs in the present case. As an initial matter, the plaintiffs’ allegations with respect to these claims appear to relate only to the Brand-Name Manufacturers. See Am. Compl. ¶ 100 (“Through its [sic] actions and omissions in advertising and other activities to promote the use of Reglan, defendants intentionally and fraudulently made misrepresentations of material facts . . . .”); ¶ 105 (“BRAND NAME DEFENDANTS made these material misrepresentations and omissions to physicians knowing that they were not true, and knowing and intending that physicians would consider the misinformation disseminated to be reliable . . . .”); ¶ 106 (“In the alternative, BRAND NAME DEFENDANTS made the false material representations and omissions with reckless disregard of whether these representations were true or not.”); ¶ 110 (“BRAND NAME DEFENDANTS overstated the benefits and safety of Reglan and concomitantly downplayed the risks in its use . . . .”). Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 23 6203/ 6208/ 6209/ 6210 et al. But even if the complaint is read to assert these claims against the Generic Manufacturers, the claims boil down to an alleged duty to provide additional information about generic metoclopramide. See Am. Compl. ¶ 108 (“Each of the DRUG COMPANY DEFENDANTS . . . is obligated to give physicians and their patients . . . accurate and material scientific information and data regarding the association between exposure to metoclopramide and the [risks of the drug].”); ¶ 111 (“The DRUG COMPANY DEFENDANTS passively assented to and indirectly cooperated in the misrepresentations, concealment, suppression and omissions made directly by the BRAND NAME DEFENDANTS . . . .”). These claims are essentially failure-to-warn claims that are preempted under Mensing. The plaintiffs’ design-defect claims suffer a similar fate under Bartlett because all of their claims rest on inadequate warnings. Although Tennessee caselaw has not yet addressed whether the prudent-manufacturer test or the consumer-expectation test applies to design-defect claims involving prescription drugs, the former test would appear to be the appropriate choice in this case because the ordinary consumer would not have the medical knowledge necessary to have a reasonable expectation about the safety of metoclopramide. See Ray by Holman v. Bic Corp., 925 S.W.2d, 527, 531 (Tenn. 1996) (“By definition, [the consumer-expectation test] could be applied only to those products in which everyday experience of the product’s users permits a conclusion. For example, ordinary consumers would have a basis for expectations about the safety of a can opener or coffee pot, but, perhaps, not about the safety of a fuel-injection engine or an air bag.” (ellipsis, emphasis, internal citation, and internal quotation marks omitted)). In analyzing whether a product is unreasonably dangerous under Tennessee’s prudent-manufacturer test, the court engages in a risk-utility analysis similar to New Hampshire’s by considering (1) the product’s usefulness and desirability; (2) the product’s safety aspects—the likelihood and probable seriousness of injury; (3) the availability of a substitute product that would safely meet the same need; (4) the manufacturer’s ability to eliminate the product’s unsafe character without hindering its usefulness or causing the maintenance of its utility Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 24 6203/ 6208/ 6209/ 6210 et al. to be too expensive; (5) the ability of the operator or user to avoid danger through the exercise of care in using the product; (6) the user’s anticipated awareness of the product’s inherent dangers and their avoidability; and (7) the feasibility of the manufacturer spreading the loss by setting the price of the product or maintaining liability insurance. Brown v. Crown Equip. Corp., 181 S.W.3d 268, 282-83 (Tenn. 2005). The Supreme Court in Bartlett considered factors such as these to effectively require either a redesign of the product or a stronger warning to avoid liability for a design defect, with neither course of action being available to a generic manufacturer under federal law. See Mut. Pharm. Co. v. Bartlett, 133 S. Ct. 2475-76 (2013). In any event, we need not decide which test applies in the present case because the plaintiffs conceded at oral argument that Bartlett forecloses their design-defect claims. We next turn to the plaintiffs’ argument that the Generic Manufacturers should have sent Dear Doctor letters to communicate additional warnings. Such letters, however, would violate the duty of conformity, as explained in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2576 (2011): A Dear Doctor letter that contained substantial new warning information would not be consistent with the drug’s approved labeling. Moreover, if generic drug manufacturers, but not the brand-name manufacturer, sent such letters, that would inaccurately imply a therapeutic difference between the brand and generic drugs and thus could be impermissibly “misleading.” [] [S]ee 21 CFR § 314.150(b)(3) (FDA may withdraw approval of a generic drug if “the labeling of the drug . . . is false or misleading in any particular”). . . . Accordingly, we conclude that federal law did not permit the Manufacturers to issue additional warnings through Dear Doctor letters. See also Fulgenzi v. PLIVA, Inc., 711 F.3d 578, 581 n.1 (6th Cir. 2013) (noting that the term “labeling” is broadly construed and includes Dear Doctor letters). As the Fifth Circuit recently explained, “the inquiry is whether the brand-name manufacturers sent out a warning, not whether the proposed warning to be disseminated contains substantially similar information as the label. Because no brand-name manufacturer sent a warning based on the 2004 label change, the generic manufacturers Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 25 6203/ 6208/ 6209/ 6210 et al. were not at liberty to do so.” Morris v. PLIVA, Inc., 713 F.3d 774, 777 (5th Cir. 2013) (per curiam). Nor can the plaintiffs proceed on a failure-to-withdraw or stop-selling theory, a theory recently rejected by the Supreme Court in Bartlett. Finally, the plaintiffs argue that Mensing does not control, and that their claims instead survive preemption under Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), Bates v. Dow Agrosciences, LLC, 544 U.S. 431 (2005), and Altria Group, Inc., v. Good, 555 U.S. 70 (2008). These latter cases involved federal statutes that expressly preempt certain state-law failure-to-warn claims, but leave available other state-law causes of action such as express warranty, conspiracy, and design defect. But express preemption is not at issue in the present case. The Supreme Court clearly based its decision in Mensing on conflict or impossibility preemption, which requires a comparison of the conflicts between state and federal duties to determine “whether the private party could independently do under federal law what state law requires of it.” Mensing, 131 S. Ct. at 2579. Simply because certain claims survived express preemption in other cases does not mean that they will survive conflict preemption in this case. See id. at 2577 n.5 (“[T]he absence of express pre-emption is not a reason to find no conflict pre-emption.” (emphasis in original)). The plaintiffs’ attempt to avoid Mensing by analogizing their claims to the express-preemption cases is therefore unavailing. We find no error in the district court’s dismissal of the plaintiffs’ claims that are, at their core, all failure-to-warn claims. 4. Failure-to-conform claims In their complaint, the plaintiffs alleged that several of the Generic Manufacturers “were negligent in failing to include information present in the label for the RLD and in failing to implement changes to their own labels to ensure that the information they provided was current and not outdated” and, in some cases, “waited years to conform their labels to the RLD label.” Am. Compl. ¶ 87l. And in the plaintiffs’ brief on appeal, they argue that “PLIVA failed to include instrumental warnings in its label for metoclopramide that had been approved by the FDA and were Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 26 6203/ 6208/ 6209/ 6210 et al. in use by the name brand manufacturers in their FDA approved labeling.” The district court characterized these allegations as “failure-to-conform claims.” Other courts refer to claims of this nature as “failure-to-update claims.” In Fulgenzi v. PLIVA, Inc., 711 F.3d 578 (6th Cir. 2013), this court held that the plaintiff stated a claim by alleging that the generic manufacturer failed to update its label in 2004 to match that of the prescription drug Reglan. The court held that the claim was not barred by the impossibility-preemption doctrine because the generic manufacturer could have complied with federal law by using the same label as the brand-name manufacturer (and in fact was required to do so). Fulgenzi, 711 F.3d at 584. Because the claim survived preemption, Fulgenzi was free to argue that the outdated warning was inadequate. That decision, however, is based on facts clearly distinguishable from the present case. The plaintiff in Fulgenzi alleged that “in July of 2004, the FDA approved Schwarz’s request to add a sentence to the Reglan label as follows: ‘Therapy should not exceed 12 weeks in duration.’ Consequently, the name brand warning label for Reglan contained the foregoing warning against treatment in excess of 12 weeks after this date.” Fulgenzi v. PLIVA, Inc., No. 5:09-cv-1767, Second Am. Compl. (D.E. 60) ¶ 46. Fulgenzi amended her complaint after Mensing to include a claim that PLIVA, the generic manufacturer, “failed to update its . . . label(s) as to metoclopramide to include the July, 2004 label change warning against any therapy in excess of 12 weeks.” Id. ¶ 60. She also specifically alleged that she ingested PLIVA-manufactured metoclopramide during the time when the generic’s label was not updated, i.e., “September, 2004; September, 2006; December, 2006; March, 2007; June, 2007; and August, 2007,” id. ¶ 17, allowing this court to conclude that “PLIVA’s label was not updated the entire time Fulgenzi was prescribed the drug,” Fulgenzi, 711 F.3d at 582. In the present case, nothing in the complaint indicates when the plaintiffs ingested generic metoclopramide. They simply allege that “several” of the Generic Manufacturers “fail[ed] to include information present in the label for the RLD and Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 27 6203/ 6208/ 6209/ 6210 et al. fail[ed] to implement changes to their own labels,” and that some Generic Manufacturers “waited years to conform their labels to the RLD label.” Am. Compl. ¶ 87l. The plaintiffs attempt to enlarge their pleadings on appeal by arguing that “PLIVA failed to include instrumental warnings in its label for metoclopramide that had been approved by the FDA and were in use by the name brand manufacturers in their FDA approved labeling.” But “[t]he appropriate method for adding new factual allegations to a complaint is not via an appellate brief, but by filing an amended complaint.” Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 328 (6th Cir. 2006). Moreover, these new statements still fail to allege when the metoclopramide was ingested and by whom it was used with regard to specific generic manufacturers, facts essential to show that a particular generic manufacturer’s label was not updated during the time that a particular plaintiff was using its product. In evaluating whether a complaint states a claim for relief, we “should not assume facts that were not pled.” Id. at 328. We will instead consider “only those facts alleged in [the plaintiffs’] complaint and the reasonable inferences that can be drawn from those facts.” Id. at 329. So even assuming that the failure-to-conform claims are not preempted under Fulgenzi, the plaintiffs have nonetheless failed to “state a claim to relief that is plausible on its face,” see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Bowman v. Wyeth, LLC, No. 10-1946, 2012 WL 684116, at *7 (D. Minn. Mar. 2, 2012) (declining to reach the question whether the failure-to-conform claim was preempted because the plaintiff’s complaint did not allege that he ingested metoclopramide after July 2004 or that he ingested metoclopramide for more than twelve weeks, nor did it allege any specific facts relating to the 2004 labeling change). The plaintiffs requested at oral argument an opportunity to amend their complaint once more in light of Fulgenzi, but they have offered no argument as to why they were unable to include the dates during which they took the drugs in their first amended complaint. Contrary to the plaintiffs’ assertion at oral argument that such information need not be in the complaint, such a factual averment is critical to the question of Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 28 6203/ 6208/ 6209/ 6210 et al. whether the plaintiffs’ alleged injuries are in any way connected to the alleged failure to conform. The plaintiffs are responsible for pleading their cause of action and are “not entitled to an advisory opinion from the Court informing them of the deficiencies of the complaint and then an opportunity to cure those deficiencies.” Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 573 (6th Cir. 2008) (brackets and internal quotation marks omitted). This is especially true here, where the plaintiffs were already given leave to amend their complaint once and where the key facts that might make their claims plausible are easily within their own knowledge. We therefore find no error in the district court’s dismissal of the plaintiffs’ failure-to-conform claims. 5. Civil conspiracy In their brief on appeal, the plaintiffs argue that they have adequately pled a cause of action for civil conspiracy. The district court held that the plaintiffs had not alleged any facts in support of their civil-conspiracy claim, and that such a claim was in substance another failure-to-warn claim. We find no error in the district court’s analysis. The plaintiffs’ complaint with regard to this claim does no more than recite the elements of a cause of action for civil conspiracy; on appeal, they simply reiterate their pleadings. Because “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the complaint fails to state a claim for civil conspiracy. Moreover, even if the civil-conspiracy claim was adequately supported by factual allegations, the essence of such a claim is that there was a tacit agreement between the manufacturers not to warn, or not to adequately warn, about the dangers of long-term metoclopramide use—a failure-to-warn claim that, for the reasons already discussed, is preempted under Mensing. Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 29 6203/ 6208/ 6209/ 6210 et al. 6. Punitive damages The plaintiffs further argue that “Mensing clearly does not mandate dismissal of the punitive damages claim as to the Generic Defendants.” But their claims for punitive damages are “derivative in nature.” See Graham v. Am. Cyanamid Co., 350 F.3d 496, 514-15 (6th Cir. 2003). “A derivative cause of action may not provide greater relief than that available under the primary cause of action.” Id. at 515 (internal citation omitted). Because the district court did not err in dismissing the plaintiffs’ substantive claims against the Generic Manufacturers, it did not err in dismissing their punitive-damages claims. C. Claims against the Brand-Name Manufacturers Turning now to the Brand-Name Manufacturers, the plaintiffs contend that the information disseminated by them was “materially false, incomplete, and misleading” and that this deficiency proximately caused the plaintiffs’ injuries. They assert that the Brand-Name Manufacturers had an affirmative duty under the FDA regulations to accurately label their products because a medical professional could foreseeably rely on that information in prescribing metoclopramide, the generic equivalent of Reglan. The Brand-Name Manufacturers respond that none of the plaintiffs took Reglan, only the generic metoclopramide, so the plaintiffs’ claims against them are barred by the TPLA. Agreeing with the Brand-Name Manufacturers, the district court held that the plaintiffs, who conceded that they never took Reglan, could not meet the “threshold requirement” of a Tennessee products-liability claim—i.e., “that the plaintiff assert that the defendant’s product caused the plaintiff’s injury.” Strayhorn v. Wyeth Pharm., Inc., 882 F. Supp. 2d 1020, 1029 (W.D. Tenn. 2012). The court found that Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011), cert. denied 132 S. Ct. 2103 (2012), a decision involving Kentucky law, controlled the present case. The Smith plaintiffs sued Wyeth and Schwarz, both makers of Reglan, alleging fraud and tortious misrepresentation. Examining the Kentucky Product Liability Act Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 30 6203/ 6208/ 6209/ 6210 et al. (KPLA), this court noted that the Act “defines a product liability action as any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation[,] . . . warning, instructing, marketing, advertising, packaging or labeling of any product.” Id. at 423 (internal quotation marks omitted) (second alteration in original). This court further noted that the Kentucky Supreme Court had held that the KPLA “applies to all damages claims arising from the use of products, regardless of the legal theory advanced.” Id. (internal quotation marks omitted). Kentucky law also requires that the plaintiffs assert, as a threshold matter, “that the defendant’s product caused the plaintiff’s injury.” Id. But the Smith plaintiffs, just as the plaintiffs in the present case, had ingested only generic metoclopramide, not Reglan. This court in Smith also rejected the plaintiffs’ argument that “the name-brand defendants’ liability stems from the fact that the regulatory structure governing name- brand and generic drugs makes it foreseeable that patients and their physicians will rely on the name-brand labels to use and prescribe generic drugs.” Id. at 423-24. It noted that the “leading case” on this issue, Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994), held that “the manufacturer of a name-brand drug has no duty to patients who ingested only a generic version of the drug manufactured by the name- brand drug company’s competitors.” Smith, 657 F.3d at 424. This court therefore joined “the majority of courts to address this question” and held that the plaintiffs could not bring their state-law tort claims against the brand-name defendants. Id. The plaintiffs’ arguments in the instant case track those of the Smith plaintiffs. They contend that their suit is not governed by the TPLA and that they have stated viable causes of action for negligent and fraudulent misrepresentation and for breach of express and implied warranties under Wyeth v. Levine, 555 U.S. 555 (2009) (finding no preemption against the brand-name manufacturer), and Conte v. Wyeth, Inc., 168 Cal. App. 4th 89 (2008) (holding that an injured plaintiff may hold a brand-name manufacturer liable for its alleged misrepresentations even though the actual injury was caused by a generic manufacturer’s drug). That is, they focus their arguments on Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 31 6203/ 6208/ 6209/ 6210 et al. whether the TPLA even applies to them. The plaintiffs do not challenge the district court’s dismissal of their remaining claims against the Brand-Name Manufacturers. Unfortunately for the plaintiffs, the relevant language in the TPLA is essentially the same as the language of the KPLA discussed in Smith. Both statutes define a “product liability action” to include all harm caused by a product regardless of the legal theory advanced. Compare Tenn. Code Ann. § 29-28-102(6) with Ky. Rev. Stat. § 411.300(1). The TPLA’s definition of “product liability action” has been interpreted broadly. See, e.g., Richardson v. GlaxoSmithKline, 412 F. Supp. 2d 863 (W.D. Tenn. 2006) (concluding that although the plaintiff’s complaint for personal injuries against a drug manufacturer under the theories of negligence, strict liability, and breach of warranty “does not cite the specific basis for his allegations, product liability suits in Tennessee are governed by the Tennessee Products Liability Act”); Spence v. Miles Labs., Inc., 810 F. Supp. 952, 959 (E.D. Tenn. 1992) (“Whether formulated as a ‘strict liability’ claim for damages resulting from untested blood products . . . or as a negligence claim, the plaintiff’s claims manifestly relate to a product [and] clearly fall within Tennessee’s broad definition of products liability actions.”), aff’d, 37 F.3d 1185 (6th Cir. 1994); Penley v. Honda Motor Co., 31 S.W.3d 181 (Tenn. 2000) (applying the TPLA to the plaintiff’s express- and implied-warranty claims for injuries caused by an all-terrain vehicle). As relevant to the present case, the TPLA clearly applies to the plaintiffs’ claims for breach of warranty against the Brand-Name Manufacturers. And although the definition of a “product liability action” does not explicitly state whether fraudulent misrepresentation claims are covered, see Tenn. Code Ann. § 29-28-102(6) (stating that the TPLA covers claims for “misrepresentation, concealment, or nondisclosure, whether negligent, or innocent”), we conclude that such a cause of action is fairly encompassed in the catch-all provision of this section, see id. (stating that a “product liability action” includes “any other substantive legal theory in tort or contract whatsoever”). Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 32 6203/ 6208/ 6209/ 6210 et al. The plaintiffs’ injuries allegedly caused by the Brand-Name Manufacturers’ purported fraudulent misrepresentations in the present case are the result of the Brand- Name Manufacturers’ “advertising, promotions, in-office and group presentations[,] . . . sponsored education and continuing education programs and seminar speakers, the planning, sponsorship, ghost-writing, and arranged publication of non-scientific and misleading medical research,” as well as their failure to warn the medical community about the true risks of Reglan. See Am. Compl. ¶¶ 101-03. In other words, they are the result of the “warning, instruction, marketing, packaging or labeling of” Reglan. See Tenn. Code Ann. § 29-28-102(6). These are essentially the same allegations made against the brand-name manufacturers in Smith. See Smith v. Wyeth, Inc., No. 5:07-CV-18-R, 2008 WL 2677051, at *3 (W.D. Ky. June 30, 2008) (“Specifically, Plaintiff argues that Defendants distributed false and misleading information concerning Reglan . . . . In effect, Plaintiff is arguing that Defendants’ warning, labeling, and marketing concerning Reglan should also be seen as the warning, labeling, and marketing of [competing generic manufacturers].” (emphasis added)). We thus conclude that the TPLA applies to all of the plaintiffs’ claims against the Brand-Name Manufacturers. This determination is consistent with the determination in Smith that the KPLA covers product-liability actions for fraud and misrepresentation despite the lack of any specific language to that effect in the statute. See Smith v. Wyeth, Inc., 657 F.3d 420, 423 (6th Cir. 2011), cert. denied 132 S. Ct. 2103 (2012) (holding that the KPLA “applies to all damages claims arising from the use of products, regardless of the legal theory advanced”) (internal quotation marks omitted). Similar to the KPLA, the TPLA contains multiple references to manufacturers and sellers. See Tenn. Code Ann. § 29-28-102(4), (7) (defining the terms “manufacturer” and “seller”); § 103(a) (setting forth the statute of limitations for “[a]ny action against a manufacturer or seller of a product for injury to person”); § 104(a) (discussing the rebuttable presumption that a product is not unreasonably dangerous if the manufacturer or seller complied with federal and state regulations). These references Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 33 6203/ 6208/ 6209/ 6210 et al. fairly imply that a claim falling under the definition of a “product liability action” may be asserted only against the manufacturer or the seller of the product that harmed the plaintiff. See Maness v. Boston Sci., 751 F. Supp. 2d 962, 968 (E.D. Tenn 2010) (“Only sellers and manufacturers may be held liable under the TPLA.”). The plaintiffs’ citation to Gaines v. Excel Industries, Inc., 667 F. Supp. 569 (M.D. Tenn. 1987), does not persuade us otherwise. In that case, the plaintiffs were injured by stamp presses in their employer’s plant. They sued the parent corporation of their employer, alleging under a “Good Samaritan” theory that the parent corporation assumed a duty of care to the plaintiffs by performing safety-inspection tours of the plant and negligently failed to implement appropriate safety measures. In response, the defendant argued that because the claim was one for injuries resulting from the construction, assembly, testing, service, or instruction of a product (the stamp presses and related safety devices) under a negligence theory, the TPLA’s statute of limitations operated to bar the claim. The district court in Gaines disagreed with the defendant because the Good Samaritan claim was “not based on any actions defendant took in a role as ‘manufacturer’ or ‘seller,’” as those terms are defined in the TPLA. Id. at 574. Rather, the claim against the parent corporation was due to its role as a safety inspector. The court, however, was careful to note that any claims relating to the parent corporation’s role in “designing, fabricating, or assembling the safety apparatus attached to the presses” were in the nature of its role as a manufacturer or seller and, therefore, fell under the TPLA. Id. In contrast to the Good Samaritan theory in Gaines, all of the claims against the Brand-Name Manufacturers in the present case are based on these defendants’ status as the manufacturers of Reglan. As such, the Brand-Name Manufacturers were responsible for proposing an accurate and adequate label to the FDA (as well as for updating that label), which, in turn, controlled the label for the Generic Manufacturers through the ANDA process. They were also responsible for distributing adequate warnings about Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 34 6203/ 6208/ 6209/ 6210 et al. the product. But they undertook no separate duties as did the parent corporation in Gaines. The TPLA therefore applies to all of the plaintiffs’ claims against the Brand- Name Manufacturers. Unfortunately for the plaintiffs, however, these defendants were not the manufacturers or sellers of the generic drugs that injured the plaintiffs. Yet “[i]n order to recover [under the TPLA], a plaintiff must show that the product manufactured and sold by the defendant . . . caused the injuries he alleges to have sustained.” Richardson v. GlaxoSmithKline, 412 F. Supp. 2d 863, 868 (W.D. Tenn. 2006) (brackets and internal quotation marks omitted); see also Tenn. Code Ann. § 29-28-105(a) (“A manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.” (emphasis added)); Wyatt v. Winnebago Indus., Inc. 566 S.W.2d 276, 280 (Tenn. Ct. App. 1978) (stating that the “first requirement [of proximate cause] is that the defendant’s act or, in this products liability case, the defect in the product, be a cause in fact of the injury”). The Supreme Court’s decision in Wyeth v. Levine, 555 U.S. 555 (2009), is not to the contrary. In Levine, the Court held that state-law tort claims against brand-name manufacturers are not preempted by federal law because “it is not impossible for [a brand-name manufacturer] to comply with its state and federal obligations.” 555 U.S. at 581. Specifically, the CBE process permits brand-name manufacturers to strengthen their warnings without prior approval from the FDA, thus allowing brand-name manufacturers to comply with both state and federal law. But unlike in the present case, Levine was injured by the brand-name manufacturer’s own product. The plaintiffs nonetheless argue that the Brand-Name Manufacturers are liable because they could foresee that physicians would rely on the information provided by the Brand-Name Manufacturers when prescribing metoclopramide. But simply because a particular harm is foreseeable “is not dispositive in determining the existence of a legal Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 35 6203/ 6208/ 6209/ 6210 et al. duty.” Burroughs v. Magee, 118 S.W.3d 323, 333 (Tenn. 2003); accord Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 366 (Tenn. 2008) (“[F]oreseeability alone is insufficient to create a duty.”). Finding the existence of a duty requires a substantive public-policy determination. See Bradshaw v. Daniel, 854 S.W.2d 865, 869-70 (Tenn. 1993) (stating that, to determine the existence of a duty, the court considers whether “a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the others—or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant”). Despite the above considerations, our dissenting colleague embraces the plaintiffs’ theory of brand-name-manufacturer liability. She repeatedly quotes the concurring opinion in Fullington v. Pfizer, Inc., 720 F.3d 739, 748 (8th Cir. 2013), to support her argument that the basis for insulating brand-name manufacturers from suit has been “severely eroded” since this court decided Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011). In our opinion, however, three factors militate against reaching such a conclusion. First, the Eighth Circuit in Fullington in fact affirmed the district court’s grant of summary judgment in favor of the brand-name manufacturers, relying on its prior decision in Bell v. Pfizer, Inc., 716 F.3d 1087 (8th Cir. 2013). Judge Murphy’s four-paragraph concurrence in Fullington indeed questions the soundness of Bell and similar decisions, but is hardly enough for us to overrule our own circuit’s decision in Smith. Second, we are bound by Smith’s holding even if, as our dissenting colleague contends, its analysis might be flawed. See United States v. Dunlap, 209 F.3d 472, 481 (6th Cir. 2000) (“[A] subsequent panel of this circuit court is powerless to revisit, modify, amend, abrogate, supersede, set aside, vacate, avoid, nullify, rescind, overrule, or reverse any prior Sixth Circuit panel’s published precedential ruling of law.”); see also Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 36 6203/ 6208/ 6209/ 6210 et al. overrules the prior decision.”). Because Smith ruled in favor of the brand-name manufacturers in a case virtually identical to the one before us, the dissent’s reliance on the concurring opinion in Fullington to reach a contrary result strikes us as misplaced. Finally, and perhaps most importantly, we have no basis to conclude in this diversity case that the Tennessee Supreme Court would overrule its prior decisions holding that a manufacturer owes no duty of care to consumers of products made by others. Tennessee law instead “requires manufacturers to warn of hidden and unknown dangers in their product.” Pemberton v. Am. Distilled Spirits Co., 664 S.W.2d 690, 693 (Tenn. 1984) (emphasis added) (internal quotation marks omitted). Furthermore, “[d]rug manufacturers have a duty to exercise ordinary and reasonable care not to expose the public to an unreasonable risk of harm from the use of their products.” Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994) (emphasis added). In Tennessee, a relationship exists between manufacturers and “those who foreseeably could be injured by the use of their products,” not those persons injured by some other product. See id. (emphasis added). This court has previously interpreted this principle to mean that “[a]lthough a product manufacturer generally has a duty to warn of the dangers of its own products, it does not have a duty to warn of the dangers of another manufacturer’s products.” Barnes v. Kerr Corp., 418 F.3d 583, 590 (6th Cir. 2005) (holding that a dental-amalgam manufacturer had satisfied its duty to warn about the dangers posed by the mercury in its products even though it did not warn that those dangers remained when combined with other manufacturers’ dental-amalgam ingredients). The plaintiffs have presented no authority indicating that manufacturers of a brand-name drug have a duty under Tennessee law to consumers of the brand-name manufacturers’ competitors, and we are loath to expand Tennessee’s substantive law without direction from the Tennessee Supreme Court. See Combs v. Int’l Ins. Co., 354 F.3d 568, 577 (6th Cir. 2004) (“[W]hen given a choice between an interpretation of [state] law which reasonably restricts liability, and one which greatly expands liability, we should choose the narrower and more reasonable path.” (second alteration in original) (internal quotation marks omitted)). Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 37 6203/ 6208/ 6209/ 6210 et al. Nor does Conte v. Wyeth, 168 Cal. App. 4th 89 (2008), save the plaintiffs’ claims. In Conte, the California Court of Appeal stated that it “ha[d] no difficulty concluding that [the brand-name manufacturer] should reasonably perceive that there could be injurious reliance on its product information by a patient taking generic metoclopramide.” Id. at 104. But this court in Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011), cert. denied, 132 S. Ct. 2103 (2012), considered Conte and characterized it as an outlier, choosing instead to follow Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994), and the majority of other courts that have rejected such a theory. See also Mensing v. Wyeth, Inc., 588 F.3d 603, 613-14 (8th Cir. 2009) (“Whatever the merits of Conte under California law, . . . under Minnesota law Mensing has not shown that the name brand manufacturers owed her a duty of care necessary to trigger liability.”), rev’d in part on other grounds sub nom. PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011). Although our decision is grounded in Tennessee law, we would note that every federal court of appeals to consider this issue has held that brand-name manufacturers are not liable to plaintiffs who are injured by a generic manufacturer’s drug, whether under a state’s product-liability act or under general principles of duty. See, e.g., Schrock v. Wyeth, LLC, 727 F.3d 1273, 1284-86 (10th Cir. 2013) (noting that every federal circuit court has rejected—and that the Oklahoma Supreme Court would not recognize—brand-name liability under these circumstances); Guarino v. Wyeth, LLC, 719 F.3d 1245, 1251-53 (11th Cir. 2013) (noting the “overwhelming national consensus” on the issue); Bell v. Pfizer, Inc., 716 F.3d 1087, 1092 (8th Cir. 2013) (same); Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182-83 (5th Cir. 2012) (per curiam), petition for cert. filed, 81 U.S.L.W. 3519 (U.S. Mar. 7, 2013) (No. 12-1093) (same). And this court, following the majority view in Foster, has previously come to the same conclusion in Smith. See Smith, 657 F.3d at 424 (“As have the majority of courts to address this question, we reject the argument that a name-brand drug manufacturer owes a duty of care to individuals who have never taken the drug actually manufactured by that company.”). Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 38 6203/ 6208/ 6209/ 6210 et al. Only three cases to our knowledge have decided the other way: Conte v. Wyeth, 168 Cal. App. 4th 89 (2008), Kellogg v. Wyeth, 762 F. Supp. 2d 694 (D. Vt. 2010), and Wyeth v. Weeks, — So.3d —, 2013 WL 135753 (Ala. Jan. 11, 2013) (reargument granted June 13, 2013). For differing reasons, we find each of these cases either unpersuasive or distinguishable. As explained above, this court rejected Conte in Smith and we do so again in the present case. The district court in Kellogg, on the other hand, recognized that common-law actions for fraud and negligence with regard to product-liability claims remain viable in Vermont, the state having no statute comparable to the TPLA. 762 F. Supp. 2d at 704, 707. As such, the court concluded that determining whether the plaintiff had ingested the defendant’s product was not essential to the claim. Id. at 709. The court also concluded that, under Vermont law, there was a duty on the part of the brand-name defendant to the generic’s consumer, id. at 708-09, a legal principle that is contrary to Tennessee law. Finally, the Alabama Supreme Court has decided to rehear Weeks, which makes its ultimate outcome far from certain. In sum, none of these cases persuade us to alter our analysis as set forth above. We therefore find no error in the district court’s grant of summary judgment in favor of the Brand-Name Defendants. D. Motion to certify a question to the Tennessee Supreme Court Finally, the plaintiffs have moved to certify the following question to the Tennessee Supreme Court: “Is there a duty on the manufacturer of a pharmaceutical drug to cease sales of a product, if that product is ‘unreasonably dangerous’ under [the] Tennessee Products Liability Act?” The Supreme Court recently rejected this very stop- selling rationale “as incompatible with [its] pre-emption jurisprudence,” Mut. Pharm. Co. v. Bartlett, 133 S. Ct. 2466, 2477 (2013), and the plaintiffs conceded at oral argument that Bartlett forecloses reliance on this theory. Accordingly, the plaintiffs’ motion has no merit. E. “Catch 22” dilemma Although we feel compelled to affirm the judgment below in light of the controlling caselaw, we cannot help but note the basic unfairness of this result. The Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 39 6203/ 6208/ 6209/ 6210 et al. plaintiffs’ problem is that all of their claims fall within the purview of the TPLA as a “product liability action.” See Tenn. Code Ann. § 29-28-102(6). This is true despite their most artful efforts to dress up a relatively simple failure-to-warn claim in a great variety of tort and contract causes of action. The plaintiffs are therefore caught in a classic “Catch 22,” barred from all claims against the Generic Manufacturers whose drugs they ingested (due to federal preemption) and from all claims against the Brand- Name Manufacturers (due to the TPLA). See PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2592 (2011) (Sotomayor, J., dissenting) (“If a consumer takes a brand-name drug, she can sue the manufacturer for inadequate warnings . . . . If, however, she takes a generic drug, as occurs 75 percent of the time, she now has no right to sue.”). This unfairness has been acknowledged by the Supreme Court in both Mensing (see supra p. 10) and Bartlett (see supra pp. 12-13), but the Court has suggested that any resolution of this dilemma rests with Congress. Relief could also come from the Tennessee General Assembly revising the TPLA to allow claims against brand-name manufacturers whose labels control the warnings that the generic manufacturers are compelled by federal law to duplicate. But unless or until such change comes, we find no basis to afford the plaintiffs any relief. III. CONCLUSION For all of the reasons set forth above, and despite the “Catch-22” dilemma, we AFFIRM the judgment of the district court and DENY the plaintiffs’ motion to certify their proposed question to the Tennessee Supreme Court. Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 40 6203/ 6208/ 6209/ 6210 et al. ___________________________________________________ CONCURRING IN PART AND DISSENTING IN PART ___________________________________________________ JANE B. STRANCH, Circuit Judge, concurring in part and dissenting in part. Before this panel comes another of the developing line of pharmaceutical cases in which a grievous harm is found to be without remedy for a large subset of the injured. The universal explanation for finding such a remediless wrong is that existing law drives these cases into the proverbial box canyon of precedent from which there is no hope of escape. I do not agree that case precedent consigns this group of plaintiffs to such an inequitable result. Accordingly, I respectfully concur in part and dissent in part from the majority opinion. In the cases before us, plaintiffs’ physicians prescribed generic metoclopramide for stomach distress. After taking the drug for more than twelve weeks, the plaintiffs developed an irreversible, incurable, life-altering neurological disorder called tardive dyskinesia. This disorder causes involuntary and rhythmic muscle movements, such as chewing, grimacing and frowning, eye blinking, lip puckering, and tongue rolling. See United States v. Grigsby, 712 F.3d 964, 966 n.1 (6th Cir. 2013). Evidence indicates that the manufacturers of generic metoclopramide and the brand-name drug Reglan knew that tardive dyskinesia occurs with much greater frequency than they warned about on their product labels. Now that the damage has been done, must the plaintiffs alone bear the burden of the harm they have suffered? The majority opinion says they must bear this Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 41 6203/ 6208/ 6209/ 6210 et al. burden alone because the law does not permit plaintiffs to pursue any state-law tort remedies against the generic or brand-name manufacturers. I cannot agree that recent changes in the law leave plaintiffs such as those before us with absolutely no remedy to redress their harm. While these plaintiffs may not be able to press all of their causes of action against the generic manufacturers, they should be permitted to pursue the failure-to-conform claim against them. As to the brand manufacturers, moreover, there exists a potentially viable path to recovery. A. Generic drug manufacturers I address the generic drug manufacturers first because the law concerning them is more settled, at least at the present time. Unfortunately I find myself compelled to join that portion of the majority’s decision holding that plaintiffs cannot, under current law, bring design-defect or failure-to-warn claims against generic drug manufacturers because such claims are preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §§ 301–399f. See Mut. Pharm. Co. v. Bartlett, 133 S. Ct. 2466 (2013); PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011). In both Mensing and Bartlett the Supreme Court adopted the position of the Food and Drug Administration (FDA) at that time that a generic drug manufacturer may not use the federal “changes-being- effected” (CBE) regulation to act independently of the brand-name manufacturer to strengthen a warning label so that known risks are adequately disclosed to medical providers and patients. See Bartlett, 133 S. Ct. at 2476; Mensing, 131 S. Ct. at 2575 (citing U.S. Brief at 15–16; 21 U.S.C. § 355(j)(4)(G); 21 C.F.R. §§ 314.94(a)(8)(iii), Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 42 6203/ 6208/ 6209/ 6210 et al. 314.150(b)(10)). Although state tort laws place “a duty directly on all drug manufacturers to adequately and safely label their products[,]” the CBE regulation as interpreted by the FDA prevents generic manufacturers from complying with federal law and state law relating to failure-to-warn and design-defect claims at the same time. Mensing, 131 S. Ct. at 2577. As a result, state tort law is preempted by federal law, leaving the plaintiffs without state-law tort remedies for these types of claims. Id.; Bartlett, 133 S. Ct. at 2476–77. This analysis “strips generic-drug consumers of compensation when they are injured by inadequate warnings” even though “Congress would [not] have intended to pre-empt state law in these cases.” Mensing, 131 S. Ct. at 2592 (Sotomayor, J., dissenting). Regrettably, Mensing and Bartlett prevent the plaintiffs from pursuing their failure-to-warn and design-defect claims against the manufacturers of generic metoclopramide, a medication that caused them permanent, debilitating harm. I follow Mensing and Bartlett because I am bound to apply Supreme Court law. My views on the liability of generic drug manufacturers on failure-to-warn and design-defect claims, however, coincide with those of the well-reasoned dissents in Mensing, 131 S. Ct. at 2582–93, and Bartlett, 133 S. Ct. at 2480–96. Mensing and Bartlett, moreover, do not seal the doorway to all claims. In Fulgenzi v. PLIVA, Inc., 711 F.3d 578, 584–85 (6th Cir. 2013), this court permitted a failure-to-conform claim to proceed against a generic drug manufacturer of metoclopramide where the plaintiff alleged that the generic manufacturer did not update its label beginning in 2004 to match the label of the brand-name drug, Reglan, and the Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 43 6203/ 6208/ 6209/ 6210 et al. plaintiff specifically alleged the time periods during which she ingested the drug. The majority invokes Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), to reject the failure-to-conform claim alleged against generic manufacturers in this case solely on the basis that the plaintiffs failed to allege facts specifying when they ingested metoclopramide. Because Fulgenzi issued in 2013 after the filing of the Amended Complaint in this case in 2011, I would grant the plaintiffs one additional opportunity to amend their complaint to specify more precisely the dates they ingested metoclopramide, thereby drawing the link between their use of the drug during a time period when the generic manufacturers failed to conform their labels to the label of the brand-name drug, Reglan. Accordingly, I dissent from subsection II.B.4. of the majority opinion, but otherwise I concur in sections II.A and II.B. B. Brand-name drug manufacturers Turning to the brand-name drug manufacturers, I further part ways with my colleagues. Brand-name drug manufacturers stand in a far different posture than generic drug manufacturers. Plaintiffs injured by brand-name prescription drugs retain state-law tort remedies against the manufacturers of those drugs. See Wyeth v. Levine, 555 U.S. 555 (2009). Proper application of federal and Tennessee law does not absolve brand- name drug manufacturers of all responsibility for the plaintiffs’ harm simply because the plaintiffs ingested generic metoclopramide and not brand-name Reglan. The plaintiffs’ state-law causes of action against the brand-name drug manufacturers are based on the lack of an adequate warning by the entity responsible for providing that warning. For Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 44 6203/ 6208/ 6209/ 6210 et al. the reasons explained below, I respectfully dissent from subsection II.C. of the majority opinion. In Wyeth, the plaintiff suffered an arm amputation following an injection of Phenergan, a drug that was administered to curb her nausea from a migraine headache. Id. at 558–59. She alleged that Phenergan’s warning label was defective because it did not instruct medical clinicians to use the IV-drip method of intravenous administration rather than the higher-risk IV-push method. Id. at 560. “More broadly, she alleged that Phenergan is not reasonably safe for intravenous administration because the foreseeable risks of gangrene and loss of limb are great in relation to the drug’s therapeutic benefits.” Id. Wyeth asserted that Levine’s claims were preempted because Wyeth could not possibly comply simultaneously with the duties imposed upon it by state tort laws and federal labeling laws. Id. at 568. This argument was comprised of several components. First, Wyeth contended that the CBE regulation was not implicated in the case because a 2008 amendment allowed a manufacturer to change its label only to reflect newly acquired information. Id. Because Levine had not pointed to any new information about the risks of the IV-push method of drug administration, Wyeth asserted that it could not fulfill its state-law duty to provide a stronger warning about that method of drug administration without violating federal law. Id. at 568–69. The Supreme Court disagreed, pointing out that Wyeth could have revised the Phenergan label even under the 2008 amendment because “newly acquired information” includes Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 45 6203/ 6208/ 6209/ 6210 et al. “new analyses of previously submitted data.” Id. at 569 (internal quotation marks omitted). “Wyeth could have analyzed the accumulating data” on the frequency of amputations and “added a stronger warning about IV-push administration of the drug.” Id. at 569–70. The same is true in this case. The brand manufacturers could have analyzed the accumulating data on the frequency of tardive dyskinesia and added a stronger warning on the Reglan label without waiting for the FDA to approve a supplemental application. The brand manufacturer also argued in Wyeth that, if it had added a stronger warning without first obtaining the FDA’s approval, it would have violated federal laws on misbranding and unauthorized distribution of its drug. Id. at 570. These arguments were not persuasive to the Court because strengthening the warning would not make Phenergan a “new drug” distributed without FDA authorization nor would such a warning misbrand the drug. Id. “[B]ecause the statute contemplates that federal juries will resolve most misbranding claims,” the Court explained, “the FDA’s belief that a drug is misbranded is not conclusive.” Id. The same reasoning applies here. Strengthening the warning label would not make Reglan a new drug distributed without FDA authorization, nor would it misbrand the drug. And because “[f]ederal law does not dictate the text of each generic drug’s label, but rather ties those labels to their brand-name counterparts,” Mensing, 131 S. Ct. at 2578, generic manufacturers have a duty to replicate the strengthened brand-name Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 46 6203/ 6208/ 6209/ 6210 et al. label to intensify the warnings on their own labels for metoclopramide. See Fulgenzi, 711 F.3d at 584. The brand-name manufacturer cannot shift the duty to warn to the FDA. The Supreme Court made this clear in Wyeth when it stated that it is a “central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times.” Wyeth, 555 U.S. at 570–71. The manufacturer must produce an adequate drug label initially and then ensure that the warnings on the label remain adequate throughout the time the drug is marketed. Id. at 571. Prior to 2007, the FDA did not have authority to order manufacturers to revise their labels, but “[w]hen Congress granted the FDA this authority, it reaffirmed the manufacturer’s obligations and referred specifically to the CBE regulation, which both reflects the manufacturer’s ultimate responsibility for its label and provides a mechanism for adding safety information to the label prior to FDA approval.” Id. at 571. The FDA can reject labeling changes made under the CBE regulation, “[b]ut absent clear evidence that the FDA would not have approved a change to Phenergan’s label,” the Supreme Court declined to “conclude that it was impossible for Wyeth to comply with both federal and state requirements.” Id. The same principles apply here. The responsibility to draft a warning label that is accurate at the time the product is issued and remains adequate during the entire time the product is on the market lies solely with the brand-name manufacturer, not the FDA. Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 47 6203/ 6208/ 6209/ 6210 et al. Finally, in Wyeth the brand-name manufacturer argued that the purposes and objectives of federal drug labeling regulation would be obstructed if Wyeth had to comply with a state-law duty to provide a stronger warning. Id. at 573. Once the FDA approves a drug’s label, Wyeth posited, a state court jury “may not deem the label inadequate, regardless of whether there is any evidence that the FDA has considered the stronger warning at issue.” Id. at 573–74. The Supreme Court rejected this contention because it relied on an “untenable interpretation of congressional intent and an overbroad view of an agency’s power to pre-empt state law.” Id. at 573. The “most glaring problem” with the argument, the Supreme Court said, was “that all evidence of Congress’ purposes is to the contrary.” Id. at 574. “Congress did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs” because it evidently “determined that widely available state rights of action provided appropriate relief for injured consumers.” Id. State-law tort claims remain intact because if “Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history.” Id. Because Congress has not adopted an express preemption provision for prescription drugs, “[i]ts silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.” Id. at 574–75. In declining to preempt state-law tort claims against brand-name drug manufacturers, the Supreme Court refused to defer to the FDA’s “newfound opinion,” first expressed in 2006, that state law frustrates the agency’s implementation of the Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 48 6203/ 6208/ 6209/ 6210 et al. FDCA. Id. at 580. The Court reasoned that a “complex and extensive” regulatory history “undercut the FDA’s recent pronouncements of pre-emption, as they reveal the longstanding coexistence of state and federal law and the FDA’s traditional recognition of state-law remedies—a recognition in place each time the agency reviewed Wyeth’s Phenergan label.” Id. at 580–81 (internal quotation marks omitted). Likewise, the Court refused to give deference to the amicus brief of the United States because “the Government’s explanation of federal drug regulation departs markedly from the FDA’s understanding at all times relevant to this case.” Id. at 580 n.13. Unfortunately for the plaintiffs, however, two years later the Supreme Court fully deferred to the FDA’s “newfound opinion,” as again expressed in an amicus brief of the United States, and found the claims against a generic manufacturer subject to federal preemption. Mensing, 131 S. Ct. at 2574–76. The upshot is that Wyeth, Mensing, and Bartlett draw a sharp distinction between brand-name and generic drug manufacturers. Injured plaintiffs can bring state-law tort claims against brand-name manufacturers. Wyeth, 555 U.S. at 581. Injured plaintiffs may not bring certain state-law tort claims against generic manufacturers. Bartlett, 133 S. Ct. at 2476; Mensing, 131 S. Ct. at 2577. “It is beyond dispute that the federal statutes and regulations that apply to brand-name drug manufacturers are meaningfully different than those that apply to generic drug manufacturers.” Mensing, 131 S. Ct. at 2582. Mensing’s acceptance of the FDA’s “newfound opinion” created a different landscape in pharmaceutical litigation. Brand-name drug manufacturers now stand in direct relationship with consumers who ingest generic drugs because only the brand- Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 49 6203/ 6208/ 6209/ 6210 et al. name manufacturers can control and change labeling to strengthen warnings about drug safety. Mensing and Bartlett “stripped any discretionary authority from the generic manufacturers to ensure the safety of their products or the adequacy of their labels, instead placing the burden entirely on the brand manufacturers.” Fullington v. Pfizer, Inc., 720 F.3d 739, 748 (8th Cir. 2013) (Murphy, J., concurring). The “privileged position accorded to the brand manufacturers may alter their state law relationship to the generic drugs whose composition and labeling they control, since at this point such a manufacturer is the party that actually controls the manufacturing and labeling of the product in question.” Id. (internal quotation marks omitted). Concomitantly, it is now reasonably foreseeable to brand-name drug manufacturers that medical providers and consumers rely on brand-name labeling to warn them about risks inherent in the use of brand-name and generic medications. See Fulgenzi, 711 F.3d at 586–88 (permitting failure-to-conform claim to proceed where plaintiff alleged that generic drug manufacturer failed to update its warning to match brand-name manufacturer’s new warning). Any defect or omission in the labeling for the brand-name drug will necessarily be repeated in the labeling for the generic drug, see id. at 581–82, causing reasonably foreseeable harm to a patient who ingests only the generic product. See Wyeth, Inc. v. Weeks, ___ So.3d ___, 2013 WL 135753, *15 (Ala. Jan. 11, 2013), argument granted, (June 13, 2013). Further, because Tennessee and all other states have laws requiring pharmacists to substitute less-expensive generic drugs for higher-priced brand-name drugs to lower health care costs, see Tenn. Code Ann. § 53-10-204; Mensing, 131 S. Ct. at 2583 (Sotomayor, J., dissenting), it is reasonably Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 50 6203/ 6208/ 6209/ 6210 et al. foreseeable to brand-name manufacturers that most prescriptions will be filled with a generic version of the drug prescribed, unless the physician insists that the patient receive the brand-name drug only. See Conte v. Wyeth, Inc., 85 Cal. Rptr. 3d 299, 315 (Cal. Ct. App. 2008). In Tennessee, “[d]rug manufacturers have a duty to exercise ordinary and reasonable care not to expose the public to an unreasonable risk of harm from the use of their products.” Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994). Drug manufacturers, “like the manufacturers of any other unavoidably dangerous product, have a duty to market and distribute their products in a way that minimizes the risk or danger. They may discharge their duty by distributing the drugs with proper directions and adequate warnings to those who foreseeably could be injured by the use of their products.” Id. Drug manufacturers may reasonably rely on “learned intermediaries” such as physicians “to transmit their warnings and instructions” to patients, thereby potentially avoiding liability for failure to warn of known risks. But “physicians can be learned intermediaries only when they have received adequate warnings” from the drug companies. Id. at 429. A reasonable warning “conveys a fair indication of the dangers involved, but also warns with the degree of intensity required by the nature of the risk.” Id. Whether a drug manufacturer’s warning is adequate is a question of fact based on several factors, including whether the warning adequately indicates the scope of the danger and reasonably communicates the extent or seriousness of the harm that could result from misuse of the drug. Id. Other pertinent factors are whether the warning alerts a Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 51 6203/ 6208/ 6209/ 6210 et al. reasonably prudent person of the danger and the consequences that might result from failure to follow the warning, and whether the means to convey the warning is adequate. Id. The adequacy of a drug warning is a question of law only if the warning is accurate and unambiguous. Id. at 429–30. The record evidence suggests that the brand-name drug manufacturers knew that the drug they created—metoclopramide by generic title and Reglan by brand- name—caused tardive dyskinesia to occur far more frequently, especially with long-term use of the drug, than was disclosed in the labeling. Yet they failed to warn physicians or patients about this known incidence rate. Under the changed landscape created by Mensing and Bartlett, the duty to warn of these dangers of Reglan and generic metoclopramide rests with the brand manufacturers. Tennessee law defines the parameters of that duty to warn. I cannot agree with my colleagues that the duty to warn as assigned by these cases simply ceases to exist because the plaintiffs ingested generic metoclopramide and not brand-name Reglan where the same warning—crafted by the brand-name manufacturer—is required as to both. See Fulgenzi, 711 F.3d at 584 (finding no impossibility preemption because the generic manufacturer could—indeed was required to—comply with its federal duty to update its labeling to match the brand- name manufacturer’s labeling). The Tennessee Supreme Court has not yet had an opportunity to discuss Wyeth and Mensing in the context of a state-law claim that a brand-name drug manufacturer failed to warn consumers adequately about the dangers of its drug, a warning that federal law requires the generic manufacturer to replicate. See Fulgenzi, 711 F.3d at 584. Therefore, it is too early to speculate, as the majority does, Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 52 6203/ 6208/ 6209/ 6210 et al. about whether the Tennessee Supreme Court would limit the liability of brand-name manufacturers to injuries caused by their “products,” and not their “warnings.” The majority opinion reaches the conclusion that the brand-name manufacturers can only be held liable if patients ingest brand-name Reglan by relying on our previous opinion in Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011), decided under Kentucky products liability law. Smith included claims against the manufacturers of Reglan and the manufacturers of generic metoclopramide. The case was decided very shortly after Mensing, which included only a claim against the generic drug manufacturer. Smith followed Mensing to reject the claim against the maker of the generic drug on federal preemption grounds. Id. at 423. Smith went further, however, and rejected the claim against the brand-name manufacturer because adopting the plaintiffs’ “theory of liability would require the court to attribute any deficiency in a name-brand manufacturer’s labeling and marketing of its products to products manufactured by its generic competitors.” Id. Smith further stated: “The plaintiffs’ argument—that the name-brand defendants’ liability stems from the fact that the regulatory structure governing name-brand and generic drugs makes it foreseeable that patients and their physicians will rely on the name-brand labels to use and prescribe generic drugs—has been rejected by all but one of the courts that have considered it.” Id. at 423–24. For this latter proposition, Smith cited the “leading case” of Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994), “in which the court held that the manufacturer of a name- brand drug has no duty to patients who ingested only a generic version of the drug manufactured by the name-brand drug company’s competitors.” Id. at 424. Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 53 6203/ 6208/ 6209/ 6210 et al. This part of Foster rested on the Fourth Circuit’s understanding in 1994 that a generic drug manufacturer could use the federal CBE regulation to strengthen its own product labeling, independently of the brand-name manufacturer. Foster, 29 F.3d at 169–70. With generic manufacturers in control of warning labels for their own products, courts understandably followed Foster to hold that brand-name drug manufacturers could not be held liable for injuries caused by generic medications. Some courts in other jurisdictions have continued to rely on Foster to hold that brand-name manufacturers of Reglan cannot be held liable for injury caused by metoclopramide manufactured by their generic competitors. See e.g., Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284–85 (10th Cir. 2013) (and cases cited therein); Guarino v. Wyeth, 719 F.3d 1245, 1252–53 (11th Cir. 2013) (same). These courts, like our own in Smith and the majority here, fail to recognize that Foster’s foundation was “severely eroded” by the Supreme Court’s recent decisions in Mensing and Bartlett.1 See Fullington, 720 F.3d at 748 (Murphy, J., concurring). Under Mensing and Bartlett, a generic manufacturer no longer retains independent control to strengthen its own label to disclose known risks of using the drug. The brand-name manufacturers control the warning labels for their own and their generic competitors’ products. See Mensing, 131 S. Ct. at 2578. “With the brand manufacturers solely responsible for the content and updating of a generic’s labels, it can no longer be credibly argued that communications regarding the risks of their product are not also 1 The majority recasts my argument to be that “the basis for insulating brand-name manufacturers from suit has been ‘severely eroded’ since this court decided Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011).” That is not correct. My point is that Foster was “severely eroded” by Mensing and Bartlett. See Fullington, 720 F.3d at 748 (Murphy, J., concurring). Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 54 6203/ 6208/ 6209/ 6210 et al. directed at consumers of the generic bioequivalents.” Fullington, 720 F.3d at 748 (Murphy, J., concurring). The majority criticizes my reliance on Judge Murphy’s concurrence in Fullington because in that case the Eighth Circuit affirmed a summary judgment in favor of brand- name manufacturers, relying on Bell v. Pfizer, Inc., 716 F.3d 1087 (8th Cir. 2013). But Bell, too, rested on the disintegrating Foster analysis, see id. at 1092, and that is precisely the point Judge Murphy made in her Fullington concurrence and that I make here. The majority also adheres to Smith on the ground that one panel may not overrule the decision of another panel. I have no disagreement with that general proposition. The majority concedes, however, that an inconsistent Supreme Court opinion can require modification of our decision. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Thus so here—Mensing precluded the reliance we placed on Foster in the Smith decision. We should not now repeat the same mistake in our analysis of Tennessee law. Consumers—who do not have the knowledge required to weigh the benefits of a medication against its risks—rely on the superior expertise of the manufacturer charged with the duty to provide label warnings. Those in need of medicine rightly expect that the manufacturer will disclose a medication’s potential to cause them physical harm. Thus, the plaintiffs’ state-law causes of action against the brand-name drug manufacturers are predicated on the lack of an adequate warning from the entity charged with providing that warning, not on whether the plaintiffs ingested Reglan or a generic competitor’s product. Once this distinction is realized and the flaw in reliance Nos. 12-6195/ 6198/ 6200/ Strayhorn et al. v. Wyeth Pharmaceuticals, Inc. Page 55 6203/ 6208/ 6209/ 6210 et al. on Foster recognized, section II.C. of the majority’s analysis lacks sufficient grounding to deny the plaintiffs the right to proceed on their state-law claims. For all of these reasons, I would hold that the plaintiffs may pursue their state- law tort claims against the brand-name manufacturers and their Fulgenzi claim against the generic manufacturers. Accordingly, I dissent from the majority’s conclusions otherwise. I concur with the majority’s conclusion that plaintiffs cannot pursue other state-law tort claims against generic drug manufacturers under the law as it presently exists. 

89 F.3d 841 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Vincent X. LEE, Appellant,v.Dora SCHRIRO; Bill Armontrout; Steve Long; Lisa Jones;Michael Groose; Dave Dormire; Gerald Bommel; Jack Kirk;Vivian Watts; Harriet Swinger; Larry Woods; Davis;Michael L. Plemmons; Malone; Steve Gilpin; Corum;Lucretia Bright; Gore; Oxford; Weaver; Ruppels; FarmAnd Home Insurance Company; State Farm Insurance; AllState Insurance, Appellees. No. 95-4012. United States Court of Appeals, Eighth Circuit. Submitted: June 7, 1996Filed: June 11, 1996. Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges. PER CURIAM. 1 Vincent X. Lee appeals the district court's1 dismissal of his complaint. Lee alleged twenty-four different defendants violated his state and federal constitutional rights, and the Religious Freedom Restoration Act, by placing him in administrative segregation, by interfering with his practice of religion, and by confiscating and destroying his personal property. On two occasions, the district court ordered Lee to submit a shorter, more readable, and more definite statement of his claims, and to provide facts showing how each defendant violated his constitutional rights; the court indicated failure to comply would result in dismissal. Lee did not comply. The district court dismissed Lee's property claim pursuant to 28 U.S.C. § 1915(d), and dismissed Lee's remaining claims without prejudice pursuant to Rule 41(b) for failure to comply with court orders. We conclude the district court did not err in dismissing Lee's claims. See Edgington v. Missouri Dep't of Corrections, 52 F.3d 777, 779 (8th Cir.1995) (no abuse of discretion to dismiss complaint for failure to comply with court order where pro se plaintiff failed to specifically plead how each defendant violated his rights); Orebaugh v. Caspari, 910 F.2d 526, 527 (8th Cir.1990) (per curiam) (inmate's due process rights were not violated by destruction of property seized from cell because Missouri provided adequate post-deprivation remedy). 2 Accordingly, we affirm the judgment of the district court. 1 The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri, adopting the report and recommendations of the Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri

636 F.2d 1226 Audio Dynamic Enterprises, In re 78-3198 UNITED STATES COURT OF APPEALS Ninth Circuit 12/5/80 1 C.D.Cal. AFFIRMED

Case: 11-30885 Document: 00511822117 Page: 1 Date Filed: 04/16/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 16, 2012 No. 11-30885 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JERRY LEE CUTLEY, Defendant-Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:10-CR-166-1 Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges. PER CURIAM:* Jerry Lee Cutley pleaded guilty to being a felon in possession of a firearm and ammunition. His sentence was enhanced under the Armed Career Criminal Act (ACCA) because the district court determined that he had at least three prior convictions for violent felonies. 18 U.S.C. § 924(e). He received a 180- month prison term. Cutley challenges his sentence, arguing that his prior convictions should not qualify as violent felonies warranting an enhancement * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 11-30885 Document: 00511822117 Page: 2 Date Filed: 04/16/2012 No. 11-30885 under the ACCA. The Government moved for summary affirmance, or, in the alternative, for an extension of time to file a brief. Under the ACCA, a person who has been convicted of possessing a gun as a felon is subject to a 15-year mandatory minimum sentence if he has three prior convictions for violent felonies or serious drug offenses. § 924(e). A violent felony includes certain enumerated crimes, including burglary, as well as any crime that falls under the residual clause of the statute, i.e., one that “involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(ii). We review the legal conclusions underlying the district court’s application of the ACCA de novo. United States v. Hawley, 516 F.3d 264, 269 (5th Cir. 2008). Cutley argues that his three prior convictions for simple burglary do not amount to violent felonies. In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court held that the generic definition of burglary for purposes of the ACCA is “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” 495 U.S. at 599. The statute under which Cutley’s convictions arose applies to unauthorized entry into not only buildings or structures but also vehicles, watercraft, and cemeteries. LA. REV. STAT. 14:62. Nonetheless, as Cutley concedes, the charging documents and the transcripts of the guilty pleas from these cases, which we may take into account, Shepard v. United States, 544 U.S. 13, 17-18, 26 (2005), reveal that he admitted that all three of his burglary convictions involved unauthorized entry into a building or structure with the intent to commit a theft while inside and thus meet the generic definition of burglary. Accordingly, the district court properly determined that these convictions are for violent felonies. Cutley acknowledges that his argument fails under Taylor, but wishes to preserve it so that he may urge the Supreme Court to revisit its decision. Because Cutley’s three prior convictions for burglary, an enumerated offense, are sufficient to support the enhancement under the ACCA, we need not 2  Case: 11-30885 Document: 00511822117 Page: 3 Date Filed: 04/16/2012 No. 11-30885 address Cutley’s argument with respect to other convictions found by the district court to also support the enhancement under the ACCA. The judgment of the district court is AFFIRMED. All pending motions are DENIED. 3 

In the United States Court of Appeals For the Seventh Circuit Nos. 11-3477, 11-3570 & 12-1334 L OCK R EALTY C ORP. IX, Plaintiff-Appellee/ Cross-Appellant, v. U.S. H EALTH, LP, et al., Defendants-Appellants/ Cross-Appellees. Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. Nos. 3:06-CV-487 RM, 3:05-CV-715 RM—Robert L. Miller, Jr., Judge. A RGUED S EPTEMBER 17, 2012—D ECIDED F EBRUARY 12, 2013 Before E ASTERBROOK, Chief Judge, and B AUER and W OOD , Circuit Judges. W OOD , Circuit Judge. These appeals represent the end of the line for a long-running dispute over a nursing- home lease between Lock Realty Corporation IX (the lessor) and U.S. Health (the lessee) and Americare (the lessee’s assignee). For simplicity, we refer to the 2 Nos. 11-3477, 11-3570 & 12-1334 defendants as Americare unless the context requires otherwise. Between Americare’s appeal and Lock’s cross- appeal, we are presented with a potpourri of issues covering everything from the propriety of a partial sum- mary judgment in Lock’s favor to the district court’s attorneys’ fee decision. The most complex question, however, relates to our appellate jurisdiction—a subject on which we requested supplemental briefing after oral argument. After reviewing the parties’ submissions, we are satisfied that our jurisdiction is secure. On the merits, we find no reversible error in the various rulings of the district court that the parties have highlighted, and so we affirm. I In January 2002, U.S. Health entered into a 20-year lease for a nursing home and adjacent property owned by Lock in Goshen, Indiana. Defendants Larry New, John Bartle, and Rebecca Bartle guaranteed the lease, which was to run from April 2002 to March 2022. At some point before mid-2006, U.S. Health assigned the lease to defendant Americare Living Centers III, LLC. It did so without obtaining Lock’s written consent, despite a provision in the lease imposing that precondition to assignment. Other concerns began to come to light, how- ever, that did attract Lock’s attention. Two separate lawsuits followed, to which we will refer as Lock I and Lock II. We trace each one here, in the hope that this detail will not only place the issues before us in context, but will also show why we have appellate jurisdiction. Nos. 11-3477, 11-3570 & 12-1334 3 For the most part, facts relating to the merits of the argu- ments on appeal will be presented as we discuss each point. A. Lock I On January 24, 2006, Lock filed suit in federal court, invoking the diversity jurisdiction, against U.S. Health. This lawsuit, No. 3:05-CV-715 in the district court, charged that U.S. Health had violated a provision of the lease under which it was required to fund a replace- ment reserve. The parties reached a settlement relatively quickly. On May 4, 2006, the district court entered an order for a stipulated judgment in Lock’s favor of $679,287.96, along with prejudgment interest of $1,471.13; it set the interest rate for the post-judgment period at 4.94%. The next day, U.S. Health filed a motion to set aside the May 4 judgment. On May 17, 2006, the parties stipulated that the judgment would be set aside and a new judgment for Lock in the amount of $485,430.56 would be entered. The stipulation also noted that an amount for attorneys’ fees would be agreed by June 10, 2006, and a supplemental judg- ment reflecting that agreement would be entered. On May 30, 2006, the court entered an order reflecting the May 17 stipulations. Although things had been going smoothly (more or less) up to that point, it was not long before problems began to crop up. The June 10 date for an agreement on attorneys’ fees turned out to be unrealistic, and so there were several extensions. On June 21, 2006, however, the 4 Nos. 11-3477, 11-3570 & 12-1334 court entered a final judgment for Lock in the agreed amount of $485,430.56, plus post-judgment interest at a rate of 5.13%. On July 14, 2006, the court issued an order granting Lock’s motion for fees and setting the amount at $29,238.85. Six weeks later, on August 31, 2006, Lock filed a motion under Federal Rule of Civil Procedure 60(b)(2) and (3) asking the court to modify its judgment to include Americare as a judgment debtor. Lock explained that it had only then learned that U.S. Health, without the necessary authorization from Lock, had assigned its lease to Americare. The court obliged in an order entered September 25, 2006. On October 5, Americare filed a motion under Fed- eral Rule of Civil Procedure 59(e) to amend the Septem- ber 25 order by removing it as a judgment debtor. The court denied this motion on November 28, 2006; this appears to be its last word on the appropriateness of including Americare in the case. In the meantime, Lock was having no luck collecting its half-million dollars from either U.S. Health or Americare. On January 16, 2007, Lock filed a motion for supplemental attorneys’ fees and costs arising out of its collection efforts. The court denied that motion on February 27, 2007. At the same time, it resolved some motions that raised issues about priority among the parties for certain Medicare funds, which apparently were being sought in connection with the judgment. It set a hearing on that issue for March 7, and on March 9, it entered an order disbursing the Medicare funds that it previously had frozen. This order stated that the Nos. 11-3477, 11-3570 & 12-1334 5 June 21 judgment on the merits and the July 14 attor- neys’ fee judgments were satisfied. This came tantalizingly close to resolving the case, but one matter remained out- standing: Lock’s effort to obtain additional fees and costs related to the post-judgment phase. On March 16, 2007, Lock decided to pursue that matter in a different way, by filing a motion to amend the July 14, 2006, judgment for attorneys’ fees. Although it is not clear, this motion seems to have relied on Rule 60(b)(3), which permits relief from a final judgment for reasons of fraud, misrepresentation, or misconduct by an opposing party. The court denied that motion more than a year later, on April 28, 2008, but it did so “without prejudice to its renewal at the conclusion of the companion case [Lock II], at which time Lock may submit evidentiary support for the attorneys’ fees and costs requested.” More than two years after that order, on July 22, 2010, the court entered its final judgment in Lock II, as we describe below. Lock followed up with a renewed motion for supplemental attorneys’ fees, as the court had said it could, on August 5, 2010. Another year and a half elapsed before that motion was resolved, but on January 10, 2012, the court issued an order granting Lock an additional $86,675.50 in fees and $1,206.02 in costs. In the same order, the court denied Americare’s motion to strike the affidavit of Timothy Maher, Lock’s lead counsel, in support of the fee motion. With all of the loose ends finally tied up, Americare and U.S. Health filed their notice of appeal on February 9, 2012, from the January 10 award of fees. That appeal was docketed as No. 12-1334 in this court. 6 Nos. 11-3477, 11-3570 & 12-1334 B. Lock II As we noted above, shortly after the district court entered its judgment in June 2006 in Lock’s favor and Lock began its collection efforts, Lock learned about U.S. Health’s assignment of the lease to Americare. In addition, Lock had not received the rental payments on the lease for the months of June, July, and August 2006, and Lock believed that U.S. Health had breached the guarantees in the lease. In September 2006, therefore, Lock filed suit against U.S. Health, Americare, and the individual defendants for breach of contract and for immediate possession of the premises. This case was assigned No. 3:06-CV-487 in the district court. Within a few days, the district court granted Lock’s motion for immediate possession. The focus of the case then shifted to the damages ques- tion. On February 6, 2007, the court denied Lock’s motion for damages in the amount of $10,291,817.73, which allegedly represented the future rent under the lease. Instead, the court ruled, damages had to be calcu- lated by offsetting the fair rental value of the property against the future rents owed under the lease. Lock also filed a motion seeking from the defendants the $371,249.30 that represented the missed rental pay- ments for June through September 2006. U.S. Health and Americare responded—five months late, the court thought—and asserted that this amount should be reduced by the value of the assets and consumables that Lock acquired when it took over the nursing home. On March 25, 2008, the court granted Lock’s motion for partial summary judgment for the delinquent rents Nos. 11-3477, 11-3570 & 12-1334 7 in the full requested amount of $371,249.30. The court explained that it was denying Americare’s setoff defense because it had been waived by the tardy filing. This left the question of the remaining damages for the breach of the lease on the table. Matters lay quiet for a long time, but on September 14, 2009, the district court filed an order addressing a number of matters that had accumulated. In that order, it rejected the methodology for calculating the fair rental value of the property that had been proposed by Lock’s expert, Jean Tipton, as unreliable under Federal Rule of Evidence 702. It criticized Tipton for relying on two rejected offers from U.S. Health to pay lower rent and for failing to use any of the three conventionally accepted methods for property valuation. Next, the court denied as untimely Lock’s motion to introduce evidence of audit rates to supplement its showing of fair rental value; Lock had filed the motion in Octo- ber 2008, long after the discovery cutoff of April 2008. The court also denied Lock’s motion for summary judg- ment in the amount of $6,092,153, because there was no support for this figure once Tipton’s testimony was excluded. Finally, the court granted Americare’s motion to limit Lock to its liquidated damages, because Lock had the burden of proof on damages and it had failed to submit any admissible evidence. After another long hiatus, on January 13, 2010, the district court denied Lock’s motion to reconsider the September 14, 2009, order. The spring of 2010 was ap- parently consumed by trial preparation: on July 20, 2010, 8 Nos. 11-3477, 11-3570 & 12-1334 after a one-day bench trial, the court reconsidered its earlier ruling on Americare’s motion and found that Americare was entitled to a total of $126,366.71 as a setoff from the $371,249.30 in rent that it owed Lock, for a net amount due to Lock of $244,883.13. (The dif- ference seems actually to be $244,882.59, but we will not quibble about less than a dollar.) It also awarded Lock liquidated damages in the amount of $212,703.96 (the security deposit) and $416,328.25 (the escrow account), making the total due to Lock $873,915.34 before prejudg- ment interest. On July 22, 2010, the court entered a final judgment to this effect, but on August 8, Lock filed a motion under Rule 59(e) asking the court to amend the judgment to include prejudgment interest. On October 3, 2011, the court granted that motion, but only for the past- due rent portion of the judgment ($244,883.13). Along the way, Lock had filed a motion for attorneys’ fees; the court also addressed that motion on October 3, 2011. Lock had wanted $804,614.50 in fees, but the court cut that amount back to $696,390.50, and it awarded $4,756.14 in costs. As it had done in Lock I, it denied U.S. Health’s motion to strike the affidavit of Maher, Lock’s lawyer. With the case at last over, on November 1, 2011, Lock filed its notice of appeal, in which it identified the Septem- ber 14, 2009, order rejecting its estimates of damages, and the January 13, 2010, order denying reconsideration of the same ruling. That appeal is No. 11-3477 in this court. On November 14, 2011, U.S. Health and Americare filed a cross-appeal from the district court’s decision of September 29, 2007, denying their motion to dismiss Nos. 11-3477, 11-3570 & 12-1334 9 the amended complaint, the July 22, 2010, judgment in Lock’s favor, the October 3, 2011, order refusing to strike Maher’s affidavit, and the October 2, 2011, order granting prejudgment interest for Lock. The cross- appeal is No. 11-3570. II The age of many of the critical rulings in these two cases caused us to wonder whether the notices of appeal had been filed within the time permitted by Federal Rule of Appellate Procedure 4(a). At first (and second) glance, the key rulings especially in Lock I seem to have taken place more than half a decade ago. Even Lock II’s final judgment has aged: it was entered on July 22, 2010. But, as we explain, for differing reasons both appeals are properly here. Lock II is the more straightforward case, and so we begin with that. The district court’s final judgment was entered on July 22, 2010; Lock’s Rule 59(e) motion was filed on August 8, 2010, well within 28 days after the judgment, and so it had the effect of postponing the time to file the notice of appeal until the district court resolved the motion. See F ED. R. A PP. P. 4(a)(4)(A)(iv). The court issued its ruling on the Rule 59(e) motion on October 3, 2011, and Lock’s notice of appeal was filed on Novem- ber 1, 2011, 29 days later and thus within the 30 days permitted by Appellate Rule 4(a)(1)(A). A properly filed notice of appeal from a final judgment brings up all earlier rulings in the same case, and so Lock is now entitled to raise its points in No. 11-3477 about the 10 Nos. 11-3477, 11-3570 & 12-1334 September 2009 and January 2010 rulings. See Carver v. Condie, 169 F.3d 469, 472 (7th Cir. 1999). Finally, for the sake of completeness, we note that U.S. Health and Americare filed their cross-appeal within the 14-day period allowed by Appellate Rule 4(a)(3), and so No. 11-3570 is properly here as well. The situation in No. 12-1334, the appeal in Lock I from the district court’s decision to grant additional attorneys’ fees to Lock, is somewhat more complicated. At root, it arises out of Lock’s March 16, 2007, motion under Rule 60(b); more broadly, it is important to remember that this part of the case arises out of post-judgment collection efforts. See generally Charles Alan Wright et al., 15B FEDERAL P RACTICE AND P ROCEDURE § 3916 (2d ed. 1992). In such circumstances, “we try to treat the postjudgment proceeding as if it were a free-standing lawsuit.” Bogard v. Wright, 159 F.3d 1060, 1062 (7th Cir. 1998). The only question in this appeal concerns the disposition of Lock’s post-judgment motions to collect attorneys’ fees related to its collection efforts. Lock re- newed that motion on August 5, 2010, and on January 10, 2012, the court granted Lock’s motion by awarding it an additional $86,675.50 in fees and $1,106.02 in costs and denying U.S. Health and Americare’s motion to strike Maher’s affidavit. On February 9, exactly 30 days after that order, U.S. Health and Americare filed their notice of appeal from the January 10 order. This too complied with Appellate Rule 4(a)(1)(A). We are therefore free to proceed to the merits of U.S. Health and Americare’s appeal and cross-appeal, and Lock’s appeal. Nos. 11-3477, 11-3570 & 12-1334 11 III Although it is plain that this litigation has endured for far too long, by this time issues have boiled down to a relatively manageable number. We see no further value in identifying which of two cases or which appeal corre- sponds to each dispute, and so the remainder of our discussion assumes that we have essentially one over- arching controversy. Lock has presented three matters for our consideration: (1) whether the district court abused its discretion when it struck Tipton’s expert opinion, denied Lock’s motion to strike the opinions of Greg Jurgonski and Bonnie Mitchell, and denied Lock’s motion to supplement its evidence of future damages; (2) whether on the record that existed, Lock showed that there were no genuine issues of material fact on its claim for future rent damages, and thus was entitled to summary judgment on that point; and (3) whether the district court abused its discretion by allowing Americare to assert its setoff defense and by refusing to allow Lock to conduct discovery on that issue. For its part, Americare (1) attacks the district court’s deci- sion to permit Maher’s affidavit to be used in support of attorneys’ fees in both Lock I and Lock II, and (2) argues that the district court erred both in awarding fees to Lock and in refusing to adjust the amount of fees to reflect Americare’s success on its setoff argument. We address these five points in turn. A District courts enjoy considerable discretion in evaluating the qualifications of an expert and the reli- 12 Nos. 11-3477, 11-3570 & 12-1334 ability of the proffered testimony. Ortiz v. City of Chicago, 656 F.3d 523, 536 (7th Cir. 2011). In this case, the court stated that it agreed with the defendants that the lease itself required the following three-step damages calcula- tion: (1) the remaining net rent must be calculated by an expert qualified to testify on the consumer price index and present discount values; (2) an expert qualified to testify as to the lease’s fair market value for the period of net rent must be determined; (3) the second number must be deducted from the first to determine whether any damages were sus- tained. With respect to the second step, the court observed that three valuation methods are generally used to determine the fair market value of real property, and each has its analog for rental property. Those methods, it continued, are (1) the comparable sales method, (2) the income method, and (3) the cost method. See, e.g., State v. Bishop, 800 N.E.2d 918, 923-24 (Ind. 2003) (describing these three methods as widely used in eminent domain cases); Scott- Reitz Ltd. v. Rein Warsaw Assoc., 658 N.E.2d 98, 105 (Ind. Ct. App. 1995) (“All three have been approved by this Court as a method of determining a property’s fair market value.”). The court indicated that a combination of those three methods might even be appropriate. Lock proposed to satisfy its burden of proving damages with an expert report from Jean Tipton. The court found that Tipton had satisfactory qualifications based on her Nos. 11-3477, 11-3570 & 12-1334 13 accounting and valuation experience, even though she had no special expertise in the health-care industry. Her methodology for determining the fair market value of the lease, however, was another matter; it did not follow any of the recognized approaches the court had outlined, either separately or in combination. Instead, Tipton relied on three items of evidence to help her assess the value of the future rent for the Goshen facil- ity. First, she consulted an email from defendant John Bartle offering to renegotiate the lease by reducing the monthly rent to $65,000; second, she took into account an email from American Senior Communities offering to lease the Goshen facility for $500,000 to $600,000 annually; and finally, she applied a formula found in an Indiana statute for use in compensating Medicaid providers in nursing facilities, 405 Ind. Admin. Code 1-14.6-12, to corroborate the first two numbers. She concluded that the reasonable rental value of the facility was $55,000 per month. Based on that information, Tipton determined that the remaining net rent payable (discounted to present value) was $14,937,182, the fair rental value of the property for the remaining period of the lease (again discounted) was $8,845,030, and thus that the damages were $6,092,153. For their part, the Americare defendants introduced valuation opinions from two people: Louis Jackson and Bonnie Mitchell. The district court did not, however, base any part of its decision on either Jackson’s or Mitchell’s opinion, and so we have no need to speculate whether the reports of either or both would have been admissible. 14 Nos. 11-3477, 11-3570 & 12-1334 The court found that Tipton’s calculations failed the standard of reliability required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); it might also have cited Federal Rule of Evidence 702(c). Tipton did not follow any of the recognized methodologies accepted under Indiana law (and no one argued that a law other than Indiana’s should apply in this diversity case). Moreover, there was no evidence indicating that Tipton had found a fourth valid approach. Against this backdrop, the court found that the bases for Tipton’s opinion were empirically questionable. Lock had re- jected the offers that U.S. Health made in an attempt to reduce the rent, and so those offers proved nothing. Using the Medicaid compensation formula to determine the private rental value was also unsupported. As the court put it, “Tipton does not explain how the Medicaid formula applies in deciding the fair market value for a lease between private companies, nor does she provide figures used to calculate the rate.” With Tipton’s evidence gone, Lock was left with nothing else that would permit a jury to find the actual damages it suffered from the breach of the lease. But in October 2008, Lock had moved to submit additional evidence on the fair rental value of the property. It had in mind some Notices of Audit Rates issued by a contractor for the Indiana Family and Social Services Agency. The court recognized that it had discretion to permit supplementary affidavits under Federal Rule of Civil Procedure 56(e), but it declined to exercise that discretion favorably to Lock for the simple reason that Nos. 11-3477, 11-3570 & 12-1334 15 the request came six months after the close of discovery. The court pointed out that the defendants had had no opportunity to depose or serve written discovery on the Agency’s representative, nor had they been able to explore the validity of the rates. Even though this motion languished for 11 months before the district court ruled—not something we endorse—we see no abuse of discretion in the substance of the court’s ruling. Lock did, however, prevail to a degree on one remaining point. At the same time as it moved for sum- mary judgment based on Tipton’s testimony, Americare responded with a motion for partial summary judg- ment that would either limit Lock to its liquidated dam- ages or rule as a matter of law that it was entitled to no damages at all. The court took the former option, as we explained in our account of the facts, and that is why Lock was entitled to recover both the security deposit and the escrowed funds in the judgment resolving Lock II. B Little needs to be said about Lock’s argument that the court erred when it refused to grant summary judg- ment awarding Lock $6,000,000 (or any other number) representing future rental payments. Once the district court rejected Tipton’s report and denied Lock’s motion to supplement the record, Lock could not satisfy its burden of proof on this issue. There are no additional facts or legal issues that bear on this point. The 16 Nos. 11-3477, 11-3570 & 12-1334 only choice the court had, therefore, was to deny Lock’s motion. C The setoff question relates to the amount Lock was entitled to recover for the delinquent rental payments for June through September 2006. Lock took the position that it was entitled to the full amount of those pay- ments ($371,249.30), while Americare argued that it should be entitled to set off the value of the assets and consumables that Lock acquired when it took over the nursing home. Initially, the court ruled that Americare could not present its setoff argument, because the court thought that the defense had not been raised in a timely manner and was thus waived. Later, the court reconsidered that order. It recalled that Lock acknowl- edged Americare’s intention to argue for a setoff in one of Lock’s own 2006 summary judgment filings. Lock was thus obviously aware of the defense well before the February 2007 deadline that the court had earlier thought barred the defense. That in turn meant that Lock was not prejudiced when Americare raised the setoff argument more formally. See Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005) (“[A] delay in asserting an affirmative defense waives the defense only if the plaintiff was harmed as a result.”). Once again, the district court enjoys considerable discretion to enforce and administer the case-processing deadlines it sets, and it is also in the best position to assess prejudice from any missed deadline. We see no abuse of discretion Nos. 11-3477, 11-3570 & 12-1334 17 here, and we therefore reject Lock’s challenge to the allowance of the setoff. D In its capacity as appellant, Americare devotes a great deal of time and energy to attacking the affidavit of Timothy Maher, who is an attorney at the firm of Barnes & Thornburg LLP and who has represented Lock through- out this litigation. Maher’s affidavit was submitted on the issue of attorneys’ fees, which the lease authorized. Lock also submitted a 286-page billing statement that showed hourly billing rates for attorneys ranging from $165 to $375, and an hourly rate for paralegals ranging from $135 to $150. Americare focuses its criticism on paragraph seven of Maher’s affidavit on the ground that it was based on a belief rather than on facts. Here is what the paragraph said: Lock was charged standard rates for this litigation. Based on the legal experience, education, and training of the attorneys and paralegals involved and the nature of this case, I believe these standard billable rates are reasonable and customary rates to be charged for people in this area and for the work that was done. The district court sensibly held that even if the phrasing in paragraph seven could be understood in isolation as a reference only to Maher’s beliefs, the affidavit taken as a whole amply demonstrated that Maher had personal knowledge of the facts presented in the affidavit and 18 Nos. 11-3477, 11-3570 & 12-1334 was competent to testify to them. His affidavit sup- ported a finding that the rates reflected in the billing sheets were the actual rates charged by the attorneys and paralegals who worked on the case, and that these rates were consistent with market rates in the area. Al- though the defendants would have been entitled to present evidence to rebut that showing, they did not. Under these circumstances, the court did not err by concluding that Maher’s affidavit was admissible under Federal Rule of Evidence 602, as lay witness testi- mony on matters about which he has personal knowledge. E Finally, Americare urges that the district court abused its discretion when it decided to award fees to Lock, and when it refused to reduce the award in Lock II because of Americare’s success on the setoff point. Our review of an award of attorneys’ fees is deferential for a number of reasons: the district court has a more com- plete picture of the case as a whole; the issues tend to be factual matters for which appellate review is limited; the accuracy of the ultimate decision is not likely to be enhanced by frequent and detailed appellate review; and it would be wasteful to engage in a “second major litigation” over attorneys’ fees. Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011). Nevertheless, we do rely on the district court to review both the en- titlement to fees and the particulars of fee requests care- fully and to justify its conclusions. Nos. 11-3477, 11-3570 & 12-1334 19 The district court here did all that and more. It reviewed Lock’s billing records for “objective evidence of the nature of legal services and reasonableness of the fee,” to ensure consistency with the Indiana Profes- sional Conduct Rules and Indiana law. See Order for Mandate of Funds Montgomery Cnty. Council v. Milligan, 873 N.E.2d 1043, 1049 (Ind. 2007). The court then looked at the “lodestar”—the rate charged and the hours worked—and concluded that it was presumptively rea- sonable. It was at this stage of the analysis that the court took Maher’s affidavit into account. In assessing the need for the number of hours worked, the court took into account Americare’s argument that “[t]he use of block billing, inclusion of services that can’t be identified as compensable in this case, the lack of detail with respect to the type of services rendered, and overlap between [Lock I and Lock II] make it impossible to determine whether the amounts claimed . . . were rea- sonable and necessary.” Recognizing these limita- tions, the court combed through the billing records and struck entries that could not be justified as reasonable and necessary. The court listed nine problem- atic entries, amounting to $3,103.50, as items that it was disallowing. It then identified another group of entries that added up to $9,917.50, and disallowed them as well. Americare has not pointed to any specific problem with the district court’s decisions, nor has it identified any additional items that should have been disallowed. The court had no obligation to respond any further to Americare’s global objection to the fee award. 20 Nos. 11-3477, 11-3570 & 12-1334 Americare did make one final set of objections, however, all of which relate to the degree of success Lock ultimately achieved. First, Americare asserted that Lock’s fees should be reduced to 8% of the requested level because Lock’s ultimate judgment was only about 8% of its original claim for $10,000,000. The court rightly noted that there is no authority for that approach under Indiana law. Indeed, under Indiana law, “a trial court abuses its discretion if it reduces an otherwise reasonable fee request based on the amount of the judg- ment.” Benaugh v. Garner, 876 N.E.2d 344, 348 (Ind. App. 2007). Americare tries to make it look as if Lock spent some $700,000 in fees to collect a judgment of $244,883.13. But that is not a fair representation of the degree of success Lock had. In Lock I, Lock recovered $485,430.56 in damages and secured $117,120.37 (the initial $29,238.85 plus the supplemental $86,675.50 and $1,206.02) in attorneys’ fees and costs. In Lock II, before the offset Lock won $1,000,281.51 in damages ($371,249.30 + $212,703.96 + $416,328.25); after subtracting the $126,366.71 offset, it still had $873,914.80 to show for its efforts. The Lock II fees and costs came to $701,146.64. Combining the amounts Lock won and the cost and fee awards in both cases, we have $1,359,345.36 in damages and $818,267.01 in fees and costs. These numbers do not compel a finding that the district court abused its discretion either in its decision to award fees or in the amount of the fees and costs it selected. Nos. 11-3477, 11-3570 & 12-1334 21 IV It is unfortunate that this litigation spun so far out of control. The long delays that punctuated the course of proceedings, even if motivated by hopes of reaching settlement or at least an agreed way to move forward, in the end helped no one. As we said at the outset, the issues before us now represent the end of the line. The district court did not abuse its discretion in the rulings brought before us for review. We therefore A FFIRM the judgments of the district court in all three appeals. Costs are to be taxed against U.S. Health and Americare. 2-12-13 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-15-00369-CR Dacious Parker, Appellant v. State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. D-1-DC-12-600094, HONORABLE P. DAVID WALHBERG, JUDGE PRESIDING ORDER AND MEMORANDUM OPINION PER CURIAM Appellant Dacious Parker pleaded guilty to the offense of aggravated assault-enhanced and the district court placed him on deferred-adjudication community supervision for a period of ten years. Subsequently, the State filed a motion to proceed with an adjudication of guilt. Parker pleaded “not true” to the allegations in the motion to adjudicate and was sentenced to twenty years’ imprisonment. This appeal followed. The rules of appellate procedure require a trial court to “enter a certification of the defendant’s right of appeal each time it enters a judgment of guilt or other appealable order.” Tex. R. App. P. 25.2(a)(2). The certification in this cause indicates that this is a plea-bargain case and the defendant has no right of appeal, but the record indicates that Parker did not plead guilty or nolo contendere but “not true” to the allegations in the State’s motion to adjudicate. See Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006) (concluding that “when the defendant appeals from the proceeding on the motion to adjudicate guilt, Rule 25.2(a)(2) will not restrict appeal”). In light of the apparent discrepancy between the certification and the record, we abate the appeal and remand the cause to the district court for entry of an amended certification addressing Parker’s right of appeal from the judgment adjudicating guilt. See Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (concluding that appellate courts may examine certification for defectiveness and use Appellant Rules of Procedure 37.1 and 34.5(c) when appropriate to obtain another certification and noting that “[Rule 25.2(a)(2)] refers only to plea bargains with regard to guilty pleas, not pleas of true on revocation motions”). Once entered, the certification shall be included in a supplemental clerk’s record and filed with this Court no later than October 29, 2015. Before Justices Puryear, Goodwin, and Bourland Abated and Remanded Filed: October 9, 2015 Do Not Publish 2 

286 P.2d 275 (1955) ELK CITY, a municipal corporation, Plaintiff in Error, v. Gertrude RICE, Defendant in Error. No. 36112. Supreme Court of Oklahoma. July 5, 1955. Donald Royse, City Atty., and Holland Meacham, Elk City, for plaintiff in error. Hill & Godfrey, by Houston Bus Hill, Oklahoma City, for defendant in error. *277 BLACKBIRD, Justice. The appearance of the parties to this appeal is the reverse of the order in which they appeared in the trial court, and all reference to them herein will be by their trial court designations. The action is one for damages to plaintiff's farm from erosion allegedly caused by water of the Red River being diverted against the north bank of said river's channel from its former course along the south bank, said diversion and change in course being allegedly caused by the negligent "construction, operation, maintenance and repair" of defendant's water pipe line which traversed said river and farm. The right-of-way which the defendant City obtained from plaintiff before constructing the pipe line in 1937 was, by the terms of said parties' easement agreement, for the purpose of repairing and maintaining the line, as well as constructing it. Thereafter, in 1942, high water and/or flood conditions in that vicinity resulted in the "washing out" of a portion of the line crossing the river; and, in 1943, defendant repaired it, burying it under the river bed and laying it deeper under the surface of the earth where it penetrated both banks of the river's channel. In order to accomplish and/or facilitate this work a temporary dam or dike, four or five feet high, was erected, extending partly across the river bed up stream from the line's river crossing. When the work was completed, this dike was not leveled or abolished and the defendant's negligence in failing to do this, which, according to plaintiff's claims, was the principal cause of the river changing its course and beginning to erode its north bank in the direction of her land, is the alleged cause of the damages plaintiff has suffered. In her petition, she sought recovery of a total of $33,280 as compensation for the alleged injuries to her farm, as if her action was statutory reverse condemnation, and, only in the alternative, did she characterize her alleged cause of action as the common-law one of damages for tort. Before the trial, the court, by order, ruled that her only alleged cause of action was in damages for the defendant's negligence, and this was the theory upon which the cause was submitted to the jury. The verdict was in plaintiff's favor for damages in the sum of $2,750, and judgment was entered accordingly. The case is presented to this Court both on appeal by defendant and cross appeal by plaintiff. To avoid repetition and serve the purpose of clarity, we will first consider defendant's argument concerning the trial court's alleged error in instructing the jury, along with the plaintiff's contention that said court erred in denying her the right to try the cause as one for condemnation in reverse, rather than as a common-law action for damages. Article II, § 24 of our State Constitution prohibits the taking of private property for public use without just compensation. Tit. 27 O.S. 1951 § 5, authorizes cities to condemn land for public purposes, and Tit. 66 O.S. 1951 § 57, provides for owners' recovery when their land has been taken or occupied for public use without having been condemned or purchased. This method is often referred to as "condemnation in reverse". Here there has been no taking or occupancy, without compensation, of any part of plaintiff's land for a public use. The erosion, flooding, washing away, and damages generally to the property of which plaintiff complained, was not a necessary incident to the construction, operation or repair of defendant's pipe line. On the basis of her own position and proof, the *278 river's course would not have been changed at the particular point that said change occurred, and the river's water have been there diverted to its opposite bank in the direction of her land with the resulting detriment alleged, had it not been for the defendant's failure, after completion of the work, to remove the temporary dike it threw up to facilitate its repairs to and/or re-laying of the pipe line in 1943. Neither the dike nor the pipe line have themselves ever touched, traversed, or encroached upon the property plaintiff claimed to have been lost and/or damaged; nor, from the undisputed evidence, can the dike be said to facilitate the operation, or be a necessary part of, the public utility here involved. Consequently, according to the overwhelming weight of authority, plaintiff's remedy was not, under the statutes relating to eminent domain, but was in damages for tort. See Oklahoma Gas & Elec. Co. v. Miller Bros. 101 Ranch Trust, 173 Okl. 101, 46 P.2d 570; 18 Am.Jur., Eminent Domain, sec. 38; 29 C.J.S., Eminent Domain, § 161. Defendant's contention that the trial court erred in instructing the jury is based upon said court's refusal to give the fourth of the instructions requested on its behalf. By said instruction, the jury would have been called upon to determine whether plaintiff's damages, if any, "were the natural result or might be regarded as obviously consequential, of the erection of the dike" and would have been told that if they determined that they were, the action was barred and the verdict should be for the defendant. This requested instruction seems to have been based primarily upon the second syllabus of this Court's opinion in Fletcher v. City of Altus, 188 Okl. 342, 108 P.2d 781. In that case, the defendant, in 1927, had constructed a permanent dam to form a lake. Plaintiff's complaint was that by 1934 and 1935 the dam had caused the water of said lake to back up sufficiently to overflow land he had been farming, with the result that the crops thereon during those two years had been damaged. He predicated his entitlement upon his ownership of a share of said crops as a tenant of the land. The trial court sustained defendant's demurrer to said plaintiff's evidence, and, on appeal, defendant urged affirmance on the ground that since there was no question but that the dam was completed in 1927, any cause of action plaintiff may have had was barred before his crops suffered the claimed injuries in 1934 and 1935. There, this Court, after quoting from Pahlka v. Chicago, R.I. & P. Ry. Co., 62 Okl. 223, 161 P. 544, another case of damages caused from a "permanent" improvement or structure, held that the matter should have been determined by submitting to the jury the issue (referred to therein as one of fact and as being "peculiar to each individual case" [188 Okl. 342, 108 P.2d 783]) of whether or not, at the time the Altus dam was completed in 1927, the injuries plaintiff claimed could have been regarded as the certain, or natural and obviously consequential, result of said dam's construction. That case, however, is different from the one here involved. Here the dam, indicated by a portion of the evidence to have caused the diversion of the water, was no appropriate nor necessary part of the pipe line which constituted the "public improvement", nor was it permanent. For all the record shows, it could, and should, have been removed after the rebuilding of defendant's pipe line across the river in 1943, without affecting the operation of the line in any way. If this had been done, plaintiff's damages would have been abated, or to put it more accurately, her claimed injuries could have been prevented long before 1948, which, according to her own testimony, is the first time her land ever suffered any detriment from the dam's diversion of the river or change of its water course. In that event, any claim for the damages she herein sought would have been both premature and unfounded. As pointed out in the court's reference, in Pahlka v. Chicago, R.I. & P. Ry. Co., supra, to the "predicament" of a plaintiff who brings suit immediately after completion of the construction, before his actual injury, her damages "though liable to have been incurred had neither resulted nor were certain to result", and could have been prevented by timely action on the part of the defendant in removing the dike and doing other things necessary to obviate the effect of its remaining there. By instruction number 12, *279 the Court limited plaintiff's recovery to that portion of her proven damages incurred within two years immediately preceding the filing of her action; and, it is our opinion that the trial court committed no error in refusing to otherwise instruct the jury on the limitations issue by an instruction such as defendant's requested instruction number 4. However proper the requested instruction might have been in an appropriate "permanent improvement" case, the facts of the present case were not such as to render proper the giving of that instruction in this case. The defendant also contends that its demurrer to the evidence and motion for directed verdict should have been sustained because the evidence shows that the river's diversion was not caused by the dike. We have carefully examined the record and find that though the evidence on this issue was conflicting, when considered in the proper light for the purpose of ruling upon said demurrer and motion, it was sufficient for submission to the jury. See Independent-Eastern Torpedo Co. v. Price, 208 Okl. 633, 258 P.2d 189. Plaintiff also contends that the court erred in refusing to sustain her motion for an instructed verdict in the sum of $8,000. No witness for the defendant testified as to the amount of plaintiff's damages. Most of plaintiff's witnesses estimated her damages at $8,000, or more. However, her witness, George Garrett, first testified her land was worth $20,000 or $25,000, in 1948 and 1949, and that, at the time of the trial, it was worth only $18,000 or $20,000. Plaintiff's attorney then went over the question again and the witness placed the land's present value at $12,000, or $14,000. We think the jury had a perfect right to consider this witness' first answer estimating plaintiff's damages as low as $2,000, as well as the higher estimates, in arriving at the amount of its verdict. When the jury viewed the premises, no one had measured the eroded land, but had merely estimated the acreage injured. The jury may have concluded that the eroded portion consisted of a fewer number of acres than some of the witnesses estimated. In view of such considerations, we cannot say that the court erred in denying plaintiff's motion for a directed verdict in the sum of $8,000. The only other alleged error is found in defendant's criticism of the trial court's exclusion from the jury panel, over its objection, of all resident taxpayers of said City. In taking such action, the court expressed the opinion that there was a sufficient number of jurors present who would not be financially or otherwise interested in any result returned, to constitute a jury for the trial of the case. It is pointed out that Tit. 12 O.S. 1951 § 572, provides, among other things, with reference to causes for challenging jurors, that a resident and taxpayer of a municipality is not to be disqualified in actions in which said municipality is a party. Here there is no showing that the regular jury panel was exhausted before the jury in this case was selected, or that defendant exercised all of its allowable peremptory challenges. Nor does defendant show that the jury was prejudiced in any manner, or that jurors who were its residents and taxpayers would have been more favorable than those selected. Assuming, without deciding, that on the basis of the cited statute, the trial court's action was error, it is our opinion that in view of Tit. 38 O.S. 1951 § 29, it was a harmless one. As we have found in the arguments of plaintiff and defendant no cause for reversal, the judgment of the trial court is hereby affirmed. JOHNSON, C.J., and WELCH, CORN, ARNOLD and JACKSON, JJ., concur. WILLIAMS, V.C.J., and HALLEY, J., dissent. HALLEY, Justice (dissenting). The majority opinion holds that the court did not err in refusing to give to the jury defendant's requested Instruction No. 4, which is as follows: "Gentlemen of the Jury you are instructed that if you find from the preponderance of the evidence that the defendant constructed a dyke in 1943 *280 above the water pipe line and if you further find that the injuries complained of were the natural result or might be regarded as obviously consequential, of the erection of such dyke, then and in that event plaintiff is barred from bringing this action and you are instructed to bring in a verdict for the defendant." I think the above instruction should have been given to the jury to enable it to determine whether or not plaintiff's claim is barred by the statute of limitations. The defendant urged the question of limitations in its demurrer. Subdivision 3, section 95, 12 O.S. 1951, provides that an action for trespass upon real property must be brought within two years. We have held in numerous cases that the question of when a cause of action accrues for damages to real property resulting from a public improvement depends upon whether or not the injuries complained of as resulting to land from the erection of a public improvement are the natural and obvious consequence of such public improvement, or the result of negligent maintenance, repair or operation of such public improvement. If the injuries suffered are the natural and obviously consequential result of the erection of such improvement, then the cause of action arises immediately and the two-year statute above mentioned is applicable. If the injuries are not the natural and obvious result of the erection of the public improvement, the statute of limitations is set in motion when the injury occurs as a result of negligent operation, maintenance, or repair of the public improvement. In Fletcher v. City of Altus, 188 Okl. 342, 108 P.2d 781, the rule is announced in the second paragraph of the syllabus as follows: "Whether a cause of action for injuries resulting from the erection of a permanent public improvement arises upon the completion of the improvement depends upon a determination of the issue of fact as to whether the injuries complained of are the natural result, or may be regarded as obviously consequential, of the erection of such permanent improvement, and such issue of fact should be submitted to the jury for determination, as a prerequisite for determining whether or not such action is barred by the statute of limitations." More recently we announced in the syllabus in City of Collinsville v. Swisher, 196 Okl. 57, 162 P.2d 324, as follows: "The statute of limitations is set in motion to an action for damages for such injuries as were the natural and obvious result of the erection of permanent improvements at the time of the completion thereof, but this rule does not apply to such other injuries as subsequently result from the negligent maintenance or operation of such improvements, and the limitation as to the latter is set in motion at the time such injuries occur." See also Murduck v. City of Blackwell, 198 Okl. 171, 176 P.2d 1002. The evidence shows that the pipeline was erected in 1937, but that in 1943, the line washed out and had to be relaid under the river bed. The erosion which injured plaintiff's land was claimed to be the result of the erection of a dyke on the up-stream side of the pipe line to divert the channel of the river from the south side to enable them to lay the pipe line under the channel of the river which was then along the south bank. There is evidence that this obstruction diverted the channel of the river from the south bank in a north or northeast direction where it reached and eroded plaintiff's land. Some of the witnesses were positive that the dyke caused the injuries suffered by plaintiff, while others thought it had nothing to do with such injuries, but that the river changed its course often and that in that case the channel naturally followed the pipe line in a northeasterly direction toward plaintiff's land because the deep ditch dug for the pipe line was *281 filled with loose dirt which the channel of the river naturally followed and washed out. If plaintiff's injuries were the natural and obvious consequential result of the erection of the dyke in 1943, her cause of action arose at that time and the statute of limitations began to run, barring her from recovery at the expiration of two years from 1943. If the injuries suffered were not the natural and obvious result following defendant's negligent acts in 1943, her cause of action arose only when the injuries actually occurred. This then became a question for the jury to determine and should have been presented for its consideration by requested Instruction No. 4. I therefore dissent.

201 U.S. 230 (1906) WYMAN v. WALLACE. No. 191. Supreme Court of United States. Submitted March 6, 1906. Decided April 2, 1906. APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. *233 Mr. W.W. Morsman and Mr. Howard B. Smith for appellants in this case and in Nos. 192 and 193, submitted simultaneously herewith.[1] Mr. Richard S. Horton for appellant in No. 194, argued at time of submission hereof.[2] Mr. Richard S. Horton and Mr. Charles Battelle for appellants in No. 195, submitted simultaneously herewith.[3] Mr. James M. Woolworth and Mr. R.S. Hall for appellees in this case and in Nos. 192, 193, 194 and 195, submitted. *240 MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court. A matter of jurisdiction is first presented. The note, which is the foundation of plaintiff's suit, is one made by the American Bank to the Union Bank, both located in Nebraska, and under the statute, for the purpose of jurisdiction, to be considered citizens of Nebraska. 25 Stat. 436; sec. 4. The plaintiff is a citizen of New Hampshire. He could not maintain *241 an action against the maker of the note, although a citizen of a State other than that of the maker and payee. 25 Stat. 434; sec. 1. But if diverse citizenship was the sole basis of the jurisdiction of the Circuit Court, the decision of the Court of Appeals would be final and there would be no appeal to this court. 26 Stat. 828, § 6. The jurisdiction of the Circuit Court, however, was not invoked on the ground of diverse citizenship — at least, not on that alone. The case presented was one arising under the laws of the United States. It was a suit to enforce a special right given by those laws. Section 5220, Rev. Stat., reads: "Any [national banking] association may go into liquidation and be closed by the vote of its shareholders owning two-thirds of its stock." By section 5151, Rev. Stat., stockholders in national banks are made liable for "all contracts, debts and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares." Section 2 of the act of June 30, 1876, 19 Stat. 63, is as follows: "SEC. 2. That when any national banking association shall have gone into liquidation under the provisions of section five thousand two hundred and twenty of said statutes, the individual liability of the shareholders provided for by section fifty-one hundred and fifty-one of said statutes may be enforced by any creditor of such association, by bill in equity, in the nature of a creditor's bill, brought by such creditor on behalf of himself and of all other creditors of the association, against the shareholders thereof, in any court of the United States having original jurisdiction in equity for the district in which such association may have been located or established." More than two-thirds of the stock voted, on February 25, 1896, for a voluntary liquidation, and on April 27, 1896, the Comptroller of the Currency formally approved the liquidation and notified the cashier of the American Bank to that effect. In proceeding, therefore, by this suit to enforce in behalf *242 of himself and all other creditors of the American Bank the extra liability imposed by Rev. Stat. § 5151, a case was presented arising under the laws of the United States, and of which, independently of the matter of diverse citizenship, the Circuit Court had jurisdiction. The bill is not multifarious. "The two subjects of applying the assets of the bank and enforcing the liability of a stockholder, however otherwise distinct, are by the statute made connected parts of the whole series of transactions which constitute the liquidation of the affairs of the bank." Richmond v. Irons, 121 U.S. 27, 50. It is suggested that no judgment had been obtained upon the note prior to this suit in equity, but as one object of the suit was to subject to the satisfaction of the debt certain property conveyed to a trustee as security therefor, no judgment at law was a prerequisite. Day v. Washburn, 24 How. 352; Case v. Beauregard, 101 U.S. 688, 691, in which the court said: "Without pursuing this subject further, it may be said that whenever a creditor has a trust in his favor, or a lien upon property for the debt due him, he may go into equity without exhausting legal processes or remedies. Tappan v. Evans, 11 N.H. 311; Holt v. Bancroft, 30 Alabama, 193." We come then to the final question in the case, and that is whether the notes executed by the American Bank were its valid obligations. And in reference to this question these are the significant facts: The demands against the American Bank were pressing. It had not the money with which to meet them. It arranged with the Union Bank to advance the money for the payment of all its outstanding obligations. When the Union Bank paid these obligations of the American Bank it was the same as though it advanced money to that bank to pay them. To reimburse and secure the former the latter bank turned over certain property, and executed these notes for the balance, securing them by a pledge of all its other assets which were placed in the hands of its president, as trustee. *243 All the stipulations and agreements made by the directors of the two banks were carried out in good faith; and, with full knowledge of what had been done, the stockholders voted for a voluntary liquidation. The borrowing of the money by the American Bank did not necessarily put it into liquidation. It had a large amount of assets, and if the real had equaled the nominal value of these assets it would have been enabled after discharging its obligation to the Union Bank to continue business. But on an examination the stockholders felt that it was wiser to stop at once. But that decision did not at all impugn the wisdom or bona fides of the transaction by which the money was obtained to pay off the pressing demands of the American Bank. The question, therefore, is, whether a national bank, finding itself embarrassed, with a large amount of assets; much in excess of its obligations, yet without the cash to make payment of those which are due and urgent, can borrow to meet those pressing demands. A very natural answer is, why not? It is not borrowing money to engage in new business. It simply exchanges one creditor for others. There may be wisdom in consolidating all its debts into the hands of one person. At least such a consolidation cannot be pronounced beyond its powers. When time is obtained by the new indebtedness (in this case a year) it gives the borrowing bank and its officers and stockholders time to consider and determine the wisdom of attempting a further prosecution of business. In the case of an individual it would be a legitimate and often a wise transaction. It is not in terms prohibited by the national banking act. Aldrich v. Chemical National Bank, 176 U.S. 618, is very clearly in point. The opinion in that case is quite lengthy and considers many authorities, but the gist of the decision is expressed in these words (p. 635): "Without further citation of cases we adjudge, both upon principle and authority, that as the money of the Chemical Bank was obtained under a loan negotiated by the vice president of the Fidelity Bank who assumed to represent it in the transaction, and as the latter used the money so obtained in *244 its banking business and for its own benefit, that bank having enjoyed the fruits of the transaction cannot avoid accountability to the Chemical Bank, even if it were true, as contended, that the Fidelity Bank could not consistently with the law of its creation have itself borrowed the money." We are of the opinion that the notes given by the American Bank for the money advanced by the Union Bank were its valid obligations and can, therefore, be enforced against its stockholders. The decree of the Circuit Court of Appeals is Affirmed. NOTES [1] No. 192, Frenzer v. Wallace; No. 193, Morsman v. Wallace, post, pp. 244, 245. [2] No. 194, Poppleton v. Wallace, post, p. 245. [3] No. 195, McClellan v. Wallace, post, p. 244.

462 N.W.2d 674 (1990) Robert RUDEN, Administrator of the Estate of Darci Elaine Ruden, Deceased, and Robert Ruden and Jo Lynn Ruden, Appellants, v. Terry Lynn PARKER, Appellee. No. 89-983. Supreme Court of Iowa. November 21, 1990. Earl A. Payson of Nagle, Harris, Cook & Payson, Davenport, Mark J. Smith of Wells, McNally & Bowman, Davenport, and Jerome V. Bolkcom, Alexandria, Va., for appellants. Michael J. Motto of Carlin, Hellstrom & Bittner, Davenport, for appellee. Considered by McGIVERIN, C.J., and SCHULTZ, LAVORATO, SNELL and ANDREASEN, JJ. McGIVERIN, Chief Justice. Plaintiff parents appeal from a grant of summary judgment that dismissed their claim for parental consortium due to the death of their adult child. We affirm. I. Background facts and proceedings. Darci Elaine Ruden was killed in an accident on March 24, 1986, when the car she was driving struck a truck driven by defendant Terry Lynn Parker. Darci was 18 years old at the time of her death. *675 A petition was filed against Parker. In division I, Robert Ruden, acting as administrator of Darci's estate, sought damages for her alleged wrongful death. In division II of this petition, Robert and Jo Lynn Ruden (Rudens) seek damages for the loss of companionship and society of Darci, their adult child. Defendant Parker filed a motion for partial summary judgment, Iowa R.Civ.P. 237, seeking dismissal of Rudens' claim for loss of parental consortium. Parker relied on Iowa Rule of Civil Procedure 8 which expressly limits a parent's right to maintain an action for loss of companionship and society to injury or death of a "minor child." See Miller v. Wellman Dynamics Corp., 419 N.W.2d 380, 383 (Iowa 1988). The district court granted defendant's summary judgment motion, ruling that Rudens have no claim for loss of consortium of their adult daughter Darci. Rudens appeal with our permission, Iowa R.App.P. 2, from the district court's grant of the partial summary judgment motion. In Miller, we recognized the well settled principle that the right of action for wrongful or negligent death of another was unknown at common law in this state and exists only by, and to the extent of, legislative grace. Id. We further refused to recognize a common-law right of parents to sue for consortium damages resulting from the wrongful death of an adult child. Id. In view of that state of the law, Rudens now challenge rule 8 on constitutional grounds. Rudens contend that denial or omission by rule 8 of parents' alleged right to recover for loss of consortium of an adult child, while allowing parents to recover for loss of consortium of a minor child, is a denial of the equal protection guarantees of the United States and Iowa constitutions. See U.S. Const. amend. XIV § 1; Iowa Const. art. I § 6. II. Standing. Parker contends that Rudens do not have standing to challenge the constitutionality of rule 8. We will assume, without deciding, that Rudens have standing to challenge rule 8 because we conclude that rule 8 does not deny equal protection as it applies to Rudens. We do, however, feel compelled to clarify our holding in Miller. In Miller, we stated that parents of an adult child did not have standing to bring a parental consortium action under Iowa Code sections 611.20 and 613.15 (1987). Miller, 419 N.W.2d at 383. Parents lack standing to bring a cause of action under those statutes because the statutes require that a cause of action under them must be brought by the administrator of the decedent's estate. Id. We, also, held in Miller that parents of an adult child could not recover damages under rule 8 because the language of rule 8 limits recovery to circumstances resulting from the death of a minor child. Id. We did not, however, hold that parents of an adult child could not challenge the constitutionality of rule 8. We stated error had not been preserved for appeal on that question. Id. at 384. III. Rudens' equal protection challenge. Iowa Rule of Civil Procedure 8 provides: "A parent, or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child." Rudens argue that the equal protection guarantees of the United States and Iowa constitutions will be violated if rule 8 is applied in a manner that denies them a right to recover for the loss of consortium that resulted from the death of their adult child, while allowing parents to recover for the loss of consortium of a minor child. The district court disagreed with Rudens and ruled that there was no equal protection violation. The United States Constitution provides that, "[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV § 1. Article I section 6 of the Iowa Constitution places substantially the same limitations upon the state as does the equal protection clause of the United States Constitution. See Hearst Corp. v. Iowa Dept. of Revenue & Finance, 461 N.W.2d 295, 304 (Iowa 1990). *676 A. The appropriate standard of review. The first step in applying an equal protection analysis is to determine the appropriate standard of review. Id. We apply a rational basis test unless the challenged statute employs a suspect classification or burdens a fundamental right. Bennett v. City of Redfield, 446 N.W.2d 467, 473 (Iowa 1989). "Suspect classifications are generally based on race, alienage, or national origin." Id. No suspect class is implicated in this case. "Fundamental rights include the right to vote, the right to interstate travel, and other rights, such as those guaranteed by the First Amendment, which are considered essential to individual liberty." Id. No fundamental right is involved in this case. See Parham v. Hughes, 441 U.S. 347, 358, 99 S.Ct. 1742, 1749, 60 L.Ed.2d 269, 279, n. 12 (1979) (Stewart, J., plurality) ("It cannot seriously be argued that a statutory entitlement to sue for the wrongful death of another is itself a `fundamental' or constitutional right."); see also Masunaga v. Gapasin, 57 Wash.App. 624, 630-32, 790 P.2d 171, 175 (1990); Shoemaker v. St. Joseph Hosp. & Health Care Center, 56 Wash.App. 575, 578-80, 784 P.2d 562, 564 (1990). Since the challenged statute does not employ a suspect classification or burden a fundamental right, we will apply a rational basis test. B. Rational basis analysis. "Under the rational basis analysis, a statute is constitutional unless it is patently arbitrary and bears no rational relationship to a legitimate governmental interest." Bennett, 446 N.W.2d at 474. Further, statutes have a presumption of constitutionality. Id. The burden rests on the challenger to demonstrate that the statute violates equal protection concepts. Id. To sustain this burden Rudens must negative every reasonable basis which may support the statute. City of Waterloo v. Selden, 251 N.W.2d 506, 508 (Iowa 1977). Parker points out a rational basis for the distinctions found in rule 8. In substance, Parker suggests that the parent-child relationship is different when a child is a minor as opposed to when a child is an adult. Minor children, as a general rule, live with their parents, and during their early years the interaction between the parent and child is of great importance to the parents, the child and society as a whole. In light of the importance of this relationship, it is rational that the legislature would choose to protect it by allowing recovery when the minor child is killed or injured. Once emancipation or majority is attained, the relationship is different. The fact that there may be a continuing relationship between the parent and the adult child does nothing to diminish the fact that the relationship does change as the child becomes emancipated or reaches the age of majority. Since there is a difference in the degree and nature of the relationship, with that of the parent/adult child being somewhat less than that of the parent/minor child, the legislature can rationally treat these relationships in a different manner, and limit the recoverability of consortium damages to the situation where the child dies before reaching the age of majority or emancipation. We agree with the rational basis for rule 8 suggested by Parker. Thus, we hold that the distinctions made by rule 8 do not deny Rudens equal protection. Our holding that rule 8 does not offend equal protection guarantees is in accord with other jurisdictions which have addressed similar equal protection challenges to statutes similar to our rule 8. See Masunaga v. Gapasin, 57 Wash.App. 624, 630-35, 790 P.2d 171, 175-77 (1990); Shoemaker v. St. Joseph Hosp. & Health Care Center, 56 Wash.App. 575, 578-80, 784 P.2d 562, 564 (1990); cf. Harris v. Kelley, 70 Wis.2d 242, 234 N.W.2d 628 (1975) (statute excluding nondependent adult children from recovery for death of parent not violation of equal protection). Rudens have directed us to other states that recognize a cause of action for loss of parental consortium of an adult child. None of these jurisdictions, however, have statutes that specifically limit parental recovery *677 for loss of consortium to minor children. When a legislative mandate exists defining the remedies available for wrongful death, our function is limited. Our duty in this case is not to pass on the policy, wisdom, advisability, or justice of a statute. See Selden, 251 N.W.2d at 508. "The legislature may pass any kind of legislation it sees fit so long as it does not infringe on the state or federal constitutions." Id. "The remedy for those who contend legislation which is within constitutional bounds is unwise or oppressive is with the legislature." Id. Other arguments raised by plaintiffs either have no merit or need not be discussed in view of the result reached. Because we conclude that rule 8 does not offend the equal protection guarantees of the United States or Iowa constitutions, we affirm the district court's ruling on the partial summary judgment motion. AFFIRMED.

886 A.2d 658 (2005) 185 N.J. 387 STATE of New Jersey, Plaintiff-Respondent, v. Robert F. GIORDANO, Jr., Defendant-Petitioner. Supreme Court of New Jersey. November 10, 2005. Denied.

928 F.2d 372 UNITED STATES of America, Plaintiff-Appellee,v.Edith Nidia RIVERA-LOPEZ, Defendant-Appellant. No. 90-5059 Non-Argument Calendar.United States Court of Appeals, Eleventh Circuit. April 11, 1991. Barry E. Witlin, Miami, Fla., for defendant-appellant. Dexter W. Lehtinen, U.S. Atty., Donnal S. Mixon, Linda C. Hertz and Kathleen M. Salyer, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of Florida. Before TJOFLAT, Chief Judge, KRAVITCH and EDMONDSON, Circuit Judges. PER CURIAM: 1 The appellant challenges the sentences she received in this cocaine-trafficking case because the district court, in fashioning her sentences, took into account the cocaine involved in an offense of which she had been acquitted. We affirm. 2 The indictment charged appellant in count one with a conspiracy involving more than 500 grams of cocaine, and in counts two and three, respectively, with possession of two kilograms and three kilograms of cocaine with intent to distribute. The jury convicted her on counts one and two and acquitted her on count three. At sentencing, the district court grouped counts one and two pursuant to Sentencing Guidelines Sec. 3D1.2(b)(1) (Nov. 1, 1990), and, in calculating the base offense level, considered the three kilograms of cocaine involved in count three. Appellant contends that linking her to this cocaine for sentencing purposes was "contrary to the foundation upon which the entire justice system is based; that the jury's verdict [on count three] must be honored"; and that she was denied due process. We disagree. 3 This court has held that "an acquittal does not bar a sentencing court from considering the acquitted conduct in imposing sentence." United States v. Funt, 896 F.2d 1288, 1300 (11th Cir.1990) (pre-guidelines case). Although, in this case, the Government did not prove all of the elements of the count-three offense beyond a reasonable doubt, the district court was not precluded from considering the facts underlying the offense at sentencing if those facts were established by reliable evidence.* United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989) (per curiam); see also United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989) (that defendant was acquitted at trial of firearm count did not preclude consideration of possession of firearm to enhance cocaine offense). 4 In a drug-trafficking case, the guidelines clearly mandate that the defendant's sentence be based on the total quantity of drugs involved in the transaction if they "were part of the same course of conduct or common scheme or plan as the offense of conviction." Sentencing Guidelines Sec. 1B1.3(a)(2) (Nov. 1, 1990); see also id. Sec. 2D1.4 application note 1 (Nov. 1987) ("If the defendant is convicted of a conspiracy that includes transactions in controlled substances in addition to those that are the subject of substantive counts of conviction, each conspiracy transaction shall be included with those of the substantive counts of conviction to determine scale."); id. Sec. 1B1.3 application note 1 (Nov. 1987) ("In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant 'would be otherwise accountable' also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant."). 5 The appellant concedes her involvement with the three kilograms of cocaine in count three of the indictment. Indeed, there is no doubt that appellant was connected with all of the cocaine used to calculate her base-offense level: she had two kilograms of cocaine in her purse at the time of her arrest (count two), she led police to her sister and brother-in-law's house where the additional three kilograms were found (count three); her brother-in-law stated that he was storing the cocaine for appellant and that he had acted as counter-surveillance for her while she transacted a cocaine deal; and both lots of cocaine were of approximately the same purity. In sum, notwithstanding the jury's not-guilty verdict on count three, the district court correctly considered the entire amount of cocaine in fashioning appellant's sentences. 6 AFFIRMED. * In this circuit, the relevant facts at sentencing need only be established by a preponderance of the evidence. United States v. Ignancio Munio, 909 F.2d 436, 439 (11th Cir.1990) (per curiam)

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/01/2019 01:06 AM CST - 929 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR Cite as 301 Neb. 929 Thomas Grady Photography, Inc., appellee, v. A mazing Vapor, Ltd., et al., appellees, and Thomas J. A nderson, appellant. ___ N.W.2d ___ Filed December 21, 2018. No. S-17-818. supplemental opinion Appeal from the District Court for Douglas County, Gregory M. Schatz, Judge, on appeal thereto from the County Court for Douglas County, Stephanie R. H ansen, Judge. Supplemental opinion: Motion of appellee for attorney fees sustained. Thomas J. Anderson, P.C., L.L.O., pro se. Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., for appellee Thomas Grady Photography, Inc. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Per Curiam. Appellee, Thomas Grady Photography, Inc. (Grady Photography), has moved under Neb. Ct. R. App. P. § 2-106 (rev. 2012) for attorney fees associated with the unsuccessful appeal to this court by appellant, Thomas J. Anderson. An affi- davit and itemized legal bill claims $6,866 in attorney fees for work performed by Grady Photography’s attorney in connec- tion with this appeal. Because Grady Photography is entitled to appellate attorney fees under Neb. Rev. Stat. § 25-1801  - 930 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR Cite as 301 Neb. 929 (Reissue 2016), as amended by 2018 Neb. Laws, L.B. 710, we award Grady Photography $6,866. As recited more fully in our opinion Thomas Grady Photography v. Amazing Vapor, ante p. 401, 918 N.W.2d 853 (2018), Grady Photography was hired to perform photogra- phy services related to the products of Amazing Vapor, Ltd. Amazing Vapor, Manuel Guillermo Calderon, and Anderson refused to pay for the services. The unpaid bill for photogra- phy services rendered totaled $2,400. The county court at trial and the district court on appeal essentially found that Anderson breached the oral contracts for Grady Photography’s services. We affirmed. Id. As a general rule, attorney fees and expenses are recover- able only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees. In re Estate of Graham, ante p. 594, 919 N.W.2d 714 (2018). Section 25-1801 applies to this case where there has been an unpaid claim for payment for photography services of $2,400. Section 25-1801, as amended, provides in part: (1) On any lawsuit of four thousand dollars or less, regardless of whether the claims are liquidated or assigned, the plaintiff may recover costs, interest, and attorney’s fees in connection with each claim as provided in this section. If, at the expiration of ninety days after each claim accrued, the claim or claims have not been paid or satisfied, the plaintiff may file a lawsuit for pay- ment of the claim or claims. If full payment of each claim is made to the plaintiff by or on behalf of the defendant after the filing of the lawsuit, but before judgment is taken, except as otherwise agreed in writing by the plain- tiff, the plaintiff shall be entitled to receive the costs of the lawsuit whether by voluntary payment or judgment. If the plaintiff secures a judgment thereon, the plaintiff shall be entitled to recover:  - 931 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR Cite as 301 Neb. 929 (a) The full amount of such judgment and all costs of the lawsuit thereon; (b) Interest at the rate of six percent per annum. Such interest shall apply to the amount of the total claim begin- ning thirty days after the date each claim accrued, regard- less of assignment, until paid in full; and (c) If the plaintiff has an attorney retained, employed, or otherwise working in connection with the case, an amount for attorney’s fees as provided in this section. (2) If the cause is taken to an appellate court and the plaintiff recovers a judgment thereon, the appellate court shall tax as costs in the action, to be paid to the plaintiff, an additional amount for attorney’s fees in such appellate court as provided in this section, except that if the plain- tiff fails to recover a judgment in excess of the amount that may have been tendered by the defendant, then the plaintiff shall not recover the attorney’s fees provided by this section. (3) Attorney’s fees shall be assessed by the court in a reasonable amount, but shall in no event be less than ten dollars when the judgment is fifty dollars or less, and when the judgment is over fifty dollars up to four thou- sand dollars, the attorney’s fee shall be ten dollars plus ten percent of the judgment in excess of fifty dollars. (4) For purposes of this section, the date that each claim accrued means the date the services, goods, mate- rials, labor, or money were provided, or the date the charges were incurred by the debtor, unless some different time period is expressly set forth in a written agreement between the parties. (Emphasis supplied.) We have described the foregoing section as follows: [This] section provides that a claimant with a claim amounting to less than $4,000 for, among other things, services rendered, may present that claim to the allegedly  - 932 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR Cite as 301 Neb. 929 liable party and then, if the claim is not paid within 90 days, sue for the amount of the original claim and addi- tional costs, interest, and attorney fees. Thomas & Thomas Court Reporters v. Switzer, 283 Neb. 19, 29, 810 N.W.2d 677, 686 (2012). Given the terms of § 25-1801 and the facts of this case, we determine that the appellate attorney fees incurred by Grady Photography of $6,866 are reasonable. This court sustains Grady Photography’s motion and awards Grady Photography attorney fees of $6,866 to be paid by Anderson. Motion of appellee for attorney fees sustained. 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 01-10491 _____________________ In The Matter Of: FIRST CITY BANCORPORATION OF TEXAS INC., Debtor. JERRY KRIM; HAROLD L. HARRIS, Individually and as Trustee of Mazel Inc. Profit Sharing Plan; GROUP OF SECURITIES LITIGATION CLAIMANTS; HARVEY GREENFIELD, Appellants, versus FIRST CITY BANCORPORATION OF TEXAS INC., Appellee. _________________________________________________________________ Appeal from the United States District Court for the Northern District of Texas March 5, 2002 Before JOLLY, SMITH, and BENAVIDES, Circuit Judges. PER CURIAM: After listening to the oral arguments of the parties and closely examining the record, we conclude that the sanctioned lawyer in this case, Harvey Greenfield, was appropriately sanctioned by the bankruptcy court. His attitude and remarks toward opposing attorneys, opposing parties, and the bankruptcy court were -- to understate his conduct -- obnoxious. Although incivility in and of itself is call for concern, what is most 1 disconcerting here is the rationale Greenfield gives for his behavior. Greenfield asserts that his deplorable and wholly unprofessional conduct helps him recover more money for his clients. Unremorsefully and brazenly, Greenfield contends that his egregious behavior serves him well in settlement negotiations and is therefore appropriate. Because we find that the bankruptcy court did not abuse its discretion when it issued sanctions in this case, we affirm the district court’s judgment affirming the bankruptcy court’s sanction order. I In 1990, Jerry Krim, Harold L. Harris, and several other claimants filed a class action lawsuit against FirstCity Bancorporation of Texas Inc. (“FirstCity”), its officers and directors, and Donaldson, Lufkin & Jenrette Securities Corporation. Greenfield represented the plaintiff class. In 1992, the parties reached a $20 million dollar settlement. The settlement, however, was set aside when federal regulators seized control of FirstCity’s assets. FirstCity then filed a bankruptcy petition under Chapter 11. Greenfield pursued the claims of the plaintiff class in bankruptcy, reaching a settlement agreement with FirstCity for over $10 million in cash and stock. FirstCity incorporated this settlement agreement into its Joint Plan for Reorganization. FirstCity then filed a motion to sanction Greenfield, based in part on his conduct during a July 13, 1995 deposition when 2 Greenfield deposed A. Robert Abboud, a director of FirstCity and a claimant in bankruptcy for indemnification of legal expenses. Abboud was represented by Hyman Schaffer. One day before the deposition, the bankruptcy judge conducted a telephone conference with Schaffer, Greenfield, and Kenneth Carroll (counsel for FirstCity Liquidating Trust). During this hearing, the bankruptcy court directed the parties to restrict the deposition to issues pertinent to Abboud’s indemnification claim. The bankruptcy court also denied Greenfield’s motion for leave to refer to a confidential report compiled by Baker & Botts for the audit committee at FirstCity. Finally, the bankruptcy court urged Greenfield not to engage in personal attacks during the deposition. At the deposition, in apparent defiance of the bankruptcy court’s order, Greenfield used the Baker & Botts report in the questioning of Abboud. Also during the deposition, the parties continued to disagree about the proper scope of the deposition inquiry. So, they again went to bankruptcy court to clarify the exact issues to be covered at the deposition. At this second telephone hearing, the bankruptcy court once more cautioned Greenfield to refrain from personal attacks. Despite these multiple warnings, during the deposition Greenfield stated that “I am going to have Mr. Abboud indicted.” He also accused Schaffer of having been fired from Sullivan and Cromwell. 3  Greenfield’s obnoxious behavior, however, was not limited to Abboud’s deposition. Some of the other statements made by Greenfield during the bankruptcy proceeding -- noted by both the district court and the bankruptcy court -- are the following: ! He characterized other attorneys, including an Assistant United States Attorney, as (1) a “stooge”; (2) a “puppet”; (3) a “weak pussyfooting ‘deadhead’” who “had been ‘dead’ mentally for ten years”; (4) “various incompetents”; (5)“inept”; (6) “clunks”; (7) “falling all over themselves, and wasting endless hours”; (8) “a bunch of starving slobs”; and (6) an “underling who graduated from a 29th-tier law school.” ! He called the chairman of FirstCity a “hayseed” and a “washed- up has been,” and he also called other FirstCity directors “scoundrels.” ! He referred to one law firm, Carrington, Coleman, Sloman & Blumenthal, L.L.P. as “stooges” of another law firm, Vinson & Elkins, L.L.P. ! He referred to the work of other attorneys as “garbage” that demonstrated “legal incompetence” while involving “ludicrous additional time and expense.” ! He asserted that Vinson & Elkins was using FirstCity as a “private piggybank.” ! He described an executive compensation plan approved by the bankruptcy court as a “bribe.” The bankruptcy court found that Greenfield’s “egregious, obnoxious, and insulting behavior ... constituted an unwarranted imposition upon and an affront to [the bankruptcy court] and the parties and practitioners who have appeared in this bankruptcy that should not have to be endured in the future.” Accordingly, the bankruptcy court imposed a monetary sanction of $22,500 and barred Greenfield from practicing in the bankruptcy courts of the Northern 4 District of Texas unless he first obtained written permission from the court. Greenfield appealed the sanction order to the district court. Meanwhile, in an unrelated appeal that involved sanctions against Greenfield for not conducting a reasonable inquiry into the facts before filing a pleading, we reversed the sanctions. Krim v. BancTexas Group, Inc., 99 F.3d 775 (5th Cir. 1996). In the light of this decision, the district court remanded the case to the bankruptcy court for reconsideration. On remand, the bankruptcy court removed the sanction that barred Greenfield from practicing in the Northern District’s bankruptcy courts but maintained the monetary penalty. In addition, the court increased the penalty by $2,500 “in light of the other findings and conclusions and because Mr. Greenfield filed a motion seeking to have this Court lift all sanctions against him ... and therefore caused counsel for FirstCity Liquidating Trust, A. Robert Abboud, and Mr. Schaffer to devote time in appearing and responding to that motion....” Greenfield appealed to the district court, which affirmed. Greenfield now appeals the district court’s decision. II We review the bankruptcy court's findings of fact under the clearly erroneous standard and decide issues of law de novo. Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th 5 Cir. 1994), cert. denied, 513 U.S. 1014 (1994). The imposition of sanctions is discretionary -- thus, we review the exercise of this power for abuse of discretion. Matter of Terrebonne Fuel and Lube, Inc., 108 F.3d 609, 613 (5th Cir. 1997). “A court abuses its discretion when its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Chavez v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995). A court, however, should exercise restraint when considering using its inherent power to impose sanctions. Id. In the instant case, the bankruptcy court assessed sanctions pursuant to (1) Rule 9011 of the Federal Bankruptcy Rules of Procedure and (2) its inherent authority to police practitioners before it. Greenfield does not dispute the factual basis of the bankruptcy court’s sanction order. He thus concedes that he made the myriad rude and insulting comments outlined above. Greenfield defends his comments in two ways. First, he argues that the statements he made were, for the most part, correct. We find this argument utterly meritless. Greenfield was never engaged in stating plain facts -- he was engaged in hurling gratuitous and hyperbolic insults. Second, Greenfield argues that the actions of both the court and the opposing attorneys caused his abusive conduct. Obviously, any error on the part of the court or motive on the part of opposing attorneys in filing the sanction motion did 6 not give Greenfield carte blanche to launch personal attacks and to defy the court’s directive to cease his wholly unprofessional conduct. The only cognizable argument Greenfield makes is that the sanction imposed was unduly harsh. Sanctions must be chosen to employ “the least possible power to the end proposed.” Spallone v. United States, 493 U.S. 265, 280 (1990)(quoting Anderson v. Dunn, 6 Wheat. 204, 231 (1821)). In other words, the sanctioning court must use the least restrictive sanction necessary to deter the inappropriate behavior. Here, the bankruptcy court repeatedly urged Greenfield not to engage in personal attacks. He did not respond to either the oral or the written warnings of the bankruptcy court. We therefore hold that the bankruptcy court did not abuse its discretion by imposing a sanction of $25,000. Accordingly, the district court judgment affirming the bankruptcy court is AFFIRMED. 7