text:
In each of two suits brought in a Missouri state court under the Federal Employers' Liability Act, the plaintiff was not a resident of Missouri, the carrier was a foreign corporation, and the accident which gave rise to the claim occurred outside of Missouri. The State Supreme Court determined that the doctrine of forum non conveniens could not bar the suits; but it was not clear whether this holding was based on local law or upon a belief that it was required by federal law as enunciated by this Court. Held: The judgment is vacated and the cause is remanded, in order that the State Supreme Court may determine the availability of the principle of forum non conveniens according to its own local law. Pp. 2-3, 5.
(a) Neither Baltimore & O. R. Co. v. Kepner, 314 U.S. 44 , nor Miles v. Illinois Central R. Co., 315 U.S. 698 , limited the power of a state to deny access to its courts to persons seeking recovery under the Federal Employers' Liability Act if in similar cases the state for reasons of local policy denies resort to its courts and enforces its policy impartially, so as not to involve a discrimination against Employers' Liability Act suits nor against citizens of other states. P. 4.
(c) Even prior to 1404 (a) of the 1948 revision of the Judicial Code (28 U.S.C.), there was nothing in the Federal Employers' Liability Act which purported "to force a duty" upon the state courts to entertain or retain Federal Employers' Liability litigation "against an otherwise valid excuse." Pp. 4-5.
359 Mo. 827, 224 S. W. 2d 105, judgment vacated and cause remanded.
[ Footnote * ] Together with No. 16, Missouri ex rel. Atchison, Topeka & Santa Fe Railway Co. v. Murphy, Circuit Court Judge, also on certiorari to the same court.
In two suits brought in a Missouri state court under the Federal Employers' Liability Act, motions to dismiss under the doctrine of forum non conveniens were denied as beyond the jurisdiction of the court to grant. In original proceedings in mandamus to compel the trial court to exercise discretionary jurisdiction in disposing of the motions, the State Supreme Court denied relief. 359 Mo. 827, 224 S. W. 2d 105. This Court granted certiorari. 339 U.S. 918 . Judgment vacated and cause remanded, p. 5.
Floyd E. Thompson argued the cause for petitioners. Sidney S. Alderman, Bruce A. Campbell and H. G. Hedrick were on the brief for the Southern Railway Co. Mr. Thompson, J. C. Gibson and R. S. Outlaw were on the brief for the Atchison, Topeka & Santa Fe Railway Co.
Roberts P. Elam argued the cause for respondents. With him on the brief was Harvey B. Cox.
These two cases had their origin in suits based on the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. 51 et seq., brought in the Circuit Court of the City of St. Louis, Missouri. It is superfluous to give concrete details regarding the parties, the circumstances of the injuries, and the considerations affecting the choice of forum. It suffices to state that in both cases the plaintiff was not a resident of Missouri, the carrier was a [340 U.S. 1, 3] foreign corporation, and the accident which gave rise to the claim of liability for negligence took place outside Missouri. In both, the doctrine of forum non conveniens was invoked; in both, the trial court denied the motion to dismiss the suit on that ground as beyond the jurisdiction of the court to grant. In both cases original proceedings in mandamus were thereupon begun in the Supreme Court of Missouri to compel the trial court to exercise discretionary jurisdiction in disposing of the motions. After alternative writs of mandamus had issued and the causes had been consolidated for consideration, the writs were quashed by a single judgment. 359 Mo. 827, 224 S. W. 2d 105. We brought the proceedings here for review, 339 U.S. 918 , because they involved questions important to the enforcement of the Federal Employers' Liability Act by the courts of the States.
A decision by the highest court of a State determining that the doctrine of forum non conveniens cannot bar an action based on the Federal Employers' Liability Act, in the circumstances before us, may rest on one of three theories. (1) According to its own notions of procedural policy, a State may reject, as it may accept, the doctrine for all causes of action begun in its courts. If denial of a motion to dismiss an action under the Federal Employers' Liability Act is rested on such a general local practice, no federal issue comes into play. (It is assumed of course that the State has acquired jurisdiction over the defendant.) (2) By reason of the Privileges-and-Immunities Clause of the Constitution, a State may not discriminate against citizens of sister States. Art. IV, 2. Therefore Missouri cannot allow suits by nonresident Missourians for liability under the Federal Employers' Liability Act arising out of conduct outside that State and discriminatorily deny access to its courts to [340 U.S. 1, 4] a non-resident who is a citizens of another State. But if a State chooses to "[prefer] residents in access to often overcrowded Courts" and to deny such access to all non-residents, whether its own citizens or those of other States, it is a choice within its own control. This is true also of actions for personal injuries under the Employers' Liability Act. Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377, 387 . Whether a State makes such a choice is, like its acceptance or rejection of the doctrine of forum non conveniens, a question of State law not open to review here.
But, (3), a State may reject the doctrine of forum non conveniens in suits under the Federal Employers' Liability Act because it may deem itself compelled by federal law to reject it. Giving the opinion of the Supreme Court of Missouri in these cases a scope most favorable to reliance on a non-federal ground, doubt still remains whether that Court did not deem itself bound to deny the motions for dismissal on the score of forum non conveniens by its view of the demands of our decisions in Baltimore & O. R. Co. v. Kepner, 314 U.S. 44 , and Miles v. Illinois Central R. Co., 315 U.S. 698 .
But neither of these cases limited the power of a State to deny access to its courts to persons seeking recovery under the Federal Employers' Liability Act if in similar cases the State for reasons of local policy denies resort to its courts and enforces its policy impartially, see McKnett v. St. Louis & S. F. R. Co., 292 U.S. 230 , so as not to involve a discrimination against Employers' Liability Act suits and not to offend against the Privileges-and-Immunities Clause of the Constitution. No such restriction is imposed upon the States merely because the Employers' Liability Act empowers their courts to entertain suits arising under it. There was nothing in that Act even prior to 1404 (a) of the 1948 revision [340 U.S. 1, 5] of the Judicial Code, Title 28, U.S.C., 1 which purported "to force a duty" upon the State courts to entertain or retain Federal Employers' Liability litigation "against an otherwise valid excuse." Douglas v. New York, N. H. & H. R. Co., supra, at 388.
Therefore, if the Supreme Court of Missouri held as it did because it felt under compulsion of federal law as enunciated by this Court so to hold, it should be relieved of that compulsion. It should be freed to decide the availability of the principle of forum non conveniens in these suits according to its own local law. To that end we vacate the judgment of the Supreme Court of Missouri and remand the cause to that Court for further proceedings not inconsistent with this opinion. State Tax Comm'n v. Van Cott, 306 U.S. 511 ; Minnesota v. National Tea Co., 309 U.S. 551 ; Herb v. Pitcairn, 324 U.S. 117 ; 325 U.S. 77 .
[ Footnote 1 ] Section 1404 (a) reads, "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." See Ex parte Collett, 337 U.S. 55 .
The Missouri Court appears to have acted under the supposed compulsion of Miles v. Illinois Central R. Co., 315 U.S. 698 , among other of this Court's decisions. The deciding vote in that case rested, in turn, only on what seemed to be compulsion of statutory provisions as to venue. By amendment, 28 U.S.C. 1404 (a), as interpreted in Ex parte Collett, 337 U.S. 55 , Congress has removed the compulsion which determined the Miles case, and the Missouri Court should no longer regard it as controlling. A federal court in Missouri would now be free to decline to hear this case and could transfer it to [340 U.S. 1, 6] its proper forum. Certainly a State is under no obligation to provide a court for two nonresident parties to litigate a foreign-born cause of action when the Federal Government, which creates the cause of action, frees its own courts within that State from mandatory consideration of the same case. Because of what I wrote in the Miles case I add this note, but otherwise concur in the decision and opinion of the Court.
MR. JUSTICE CLARK, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE DOUGLAS concur, dissenting.
"The Federal Employers' Liability Act does not compel the courts of this state to hear cases arising under that act, but it empowers our courts to do so.
"Since Missouri does allow its citizens to maintain Federal Employers' Liability actions in its courts, . . . it follows that not to allow citizens of other states the right to file Federal Employers' Liability suits in our state courts would violate Article 4, Section 2, of the Constitution of the United States." 359 Mo. 827 at 839, 224 S. W. 2d 105 at 110 (1949).
But the majority of this Court apparently presumes that when the Supreme Court of Missouri thus used the term "citizens" it was unmindful that the term includes all persons domiciled within a State regardless of their [340 U.S. 1, 7] actual residence. I am unwilling to conclude that the court thought that only actual residents of Missouri are citizens of that State. Indeed it seems clear that the court used the term "citizens" in the usual sense, meaning to include Missourians regardless of where they reside. That it did is shown by its discussion of the opinion of this Court in Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377 (1929), which upheld a New York statute permitting dismissal of suits by "non-residents" against foreign corporations. As against the contention that the New York statute discriminated against citizens of other States, this Court in the Douglas case found the statute unobjectionable since New York courts in defining "residents" had included only persons actually living in New York and had interpreted "non-residents" to mean all persons residing outside the State, whether citizens of New York or of some other State. The Missouri court below observed that Missouri had no such statute and that dismissal could not be justified in view of its local policy which "permits citizens of this state to file Federal Employers' Liability cases in its courts." 359 Mo. at 838, 224 S. W. 2d at 110.

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§ 1270.04 Abrogation and Greater Restrictions.
§ 1270.05 Warning and disclaimer of liability.
§ 1270.06 Designation of Floodplain Administrator.
§ 1270.08 Duties and responsibilities of Floodplain Administrator.
§ 1270.09 Application procedures and requirements.
§ 1270.10 Review by County Conservation District.
§ 1270.11 Review of application by others.
§ 1270.14 Start of construction.
§ 1270.18 Description and special requirements of identified floodplain areas.
§ 1270.19 Changes in identification of area.
§ 1270.21 Jurisdictional boundary changes.
§ 1270.23 Elevation and floodproofing requirements.
§ 1270.24 Design and construction standards.
§ 1270.25 Development which may endanger human life.
§ 1270.26 Special requirements for subdivisions and development.
§ 1270.27 Special requirements for manufactured homes.
§ 1270.28 Special requirements for recreational vehicles.
§ 1270.33 Variance procedures and conditions.
Editor's Note: This ordinance also repealed former Ch. 1270, Flood Plain Overlay District, adopted 9-30-1993 by Ord. No. 250, as amended.
1270.04 Abrogation and Greater Restrictions.
1270.05 Warning and disclaimer of liability.
1270.06 Designation of Floodplain Administrator.
1270.08 Duties and responsibilities of Floodplain Administrator.
1270.09 Application procedures and requirements.
1270.10 Review by County Conservation District.
1270.11 Review of application by others.
1270.18 Description and special requirements of identified floodplain areas.
1270.19 Changes in identification of area.
1270.23 Elevation and floodproofing requirements.
1270.24 Design and construction standards.
1270.25 Development which may endanger human life.
1270.26 Special requirements for subdivisions and development.
1270.27 Special requirements for manufactured homes.
1270.28 Special requirements for recreational vehicles.
1270.33 Variance procedures and conditions.


o, ā. adj. used chiefly of persons, apparently off one's head, demented, crazy , both of temporary condition due to excitement, intoxication, anger, etc., and of permanent quality; in heroic lit. applied to warriors (often in unfavour- able sense foolhardy, rash ); in Laws to the insane or half- witted. In late lit. often used in a complimentary sense spirited, lively, agile ; see IGT Dec. § 65 ( mear . . . ó chéill in mholta).
(a) Of persons: m.¤ .i. mo a ír .i. a ferg, Corm. Y 907. ? m.¤ quasi mur .i. imat . . . ar it imda na mera, 905 . mear .i. iarsinní bís a ænur isin allt a mbí .i. ina meracht ┐ ina ænur téit. quasi merulus .i. lon ... quod volat solus ┐ ni bí én aile cid dia cheniul féin ina coemtecht, Corm. 31 = mér, Corm. Y § 890 . mer .i. merulus .i. lon CIH ii 633.16 . fonrālaig mairb mesctha mir at our wit's end (?), SR 3579 (n p m. for a p.). dia n-essib cor bo m.¤ , Met. Dinds. ii 24. comdar mera mescda, YBL 138a28 . tibir cech m.¤ `every madcap is a laughing-stock', Tec. Corm. § 13.15 . drūth cech mer `recklessness is foolish', Ir. Proverbs 84.9 = Ériu ix 47 § 20 ( LL 147b39 ). cid dotgní m.¤, a mic legind? what drives you mad? Aisl. MC 47.28 . rogain mir `a madman's choice', Met. Dinds. iii 84. ni luadh mir (i.e. incredible statement), BR 170.4 . ra toebh leicne mer- laīch mhir, Moling § 18. gasruidh m.¤ active, spirited , Ir. Texts ii 33 § 18. nert sloigh láinmhir, IGT Dec. ex. 352. comhartha an mār-mir Macha `great warrior' (? madman), MR 226.12 . gníomh ainnirtag ollamh mhear `a crazy poet', Content. xxvii 5. Of women: in m.¤ mend (of Macha of Emain), Met. Dinds. iv 128 . don mnaí théithmir, ib. Compar. Midlúachair miriu cech maín ` sprightlier ', Met. Dinds. iii 282. ni ḟaca laoch . . . budh mōrrda is budh mire, LL 396.2 . fear fa mire is fa cliste san gcomhlann nimblest, fastest , Keat. Poems 209. is miride cruaidh fabhairt, steel is the nimbler for tempering, Dánfhocail 12 § 60.
(b) of the mentally deficient: oinmhit .i. m.¤ nó baeth, IT iii 276. fear fris ro scara[d] a cond .i. duine mear, Laws v 234. 28 Comm. na mir ┐ na hecodnaig, i 86.21 . cuimrech in duine mir (.i. fo tabur in dluighe fulla), 300.10 , 11 . cor mire contract of a mad woman, 52.2 . m.¤ gan rath (a class of `drúth'), H. 3.18 p. 423a ( O'C. 892 ).
(c) of animals: tarb maeth mer, Met. Dinds. iv 338. delb dhoim allaid . . . mhir, LB 124b1 = Keat. iii 2039. eascaire . . . inn aighi mir `mad cow', Laws iii 272.12 . Mide magen na marc mer spirited, mettlesome , Met. Dinds. ii 42. eich maithe meara, Cog. 112.5 .
(d) common epithet of sea: cusin muir m.¤ , LL 136a49 . Cog. 178.25 . tar tonnaib in mara mir, Lism. L. 3819. ar thonnuib mera in mara, Ériu ii 92.12 . fairge mhear, Keat. Poems 1462. mire 'náit na mōrthonda (of a chieftain), ZCP viii 221 § 48.
(e) of abstracts, actions, etc. wild, rash, precipitate, etc.: m.¤ is nír chond ceille in col, LL 33a38 . don mortlaid malar- tuind mir raging , 132b48 . Cath Glinne Mama is mór m.¤ , Cog. 112.18 . roga romer ` eager' (? extravagant, fantastic ), Met. Dinds. i 6. togla, tána, . . . áera, rúne romera `keen riddles' (? rash purposes or designs), iii 20 . Eochaidh mac R. an rūin mhir, LL 394.16 . ropo m.¤ a nnert, 33a41 . treb Beniamín co mbrig mir, LB 124b9 = Keat. iii 2047. uabhar mer, IGT Dec. ex. 880. ní rád m.¤ no wild (incredible) statement, LU 3035 , cf. ní m.¤ , ZCP viii 113 § 1. criss arcait, ni haicde m.¤ `no paltry (? hastily finished, scamped) work', Fianaig. 14.2 . imchosnam in míre mir `the contest for the coveted portion', Met. Dinds. iv 180 (epithet prob. transferred from imchosnam = the mad contest for the portion). matin mir, O'Mulc. 268 (`on a bright morning' < Lat. merus, Stokes; perh. wild, gusty ).
(a) with adj. forming a dwanda compd. or in adverbial relation: ¤amnas, ZCP viii 264 § 21. ¤borb, CCath. 5791. ¤calma 1928 . ¤dána 347 . ¤glé: gen mergle a scion bold and bright (?), LL 134b7 = Todd Nenn. 246. ¤trén, CCath. 1928. ¤uallach, SR 6686. With adj. formed from subst.: oclach . . . meardālach brisk in encounter, Cog. 170.19 . meardhuaiseach swift (impulsive) in bounty , Keat. Poems 738. mermenmnach, ZCP vi 32.12 . xiii 217.12 .
(b) with subst.: ¤ág ` furious battle ', Gorm. July 10. ¤aicme: mac Mugroin mir-aicme, LL 394.45 . ¤aichne: trí comartha tirdachta .i. immargal ┐ immarbág ┐ m. `mistaking one person for another (?)' (? muddle-headedness), Triads 229. Samhradh na meraithne . . . ni aithned neach caem nō cara ann `Summer of the Aberration', AU iii 130.6 , cf. FM iv 896. Finghin . . . do mharbhadh lá a bhráithribh tre mhearaithne by mistake , FM ii 1104.5 . ¤bhuinne Muaidhe swift stream, torrent , Ériu viii 135.28 . ¤cenn ` mad-head', epithet of sea: tar muir meircenn, Trip. 34.5 ; 448.21 (meircend). Lism. L. 302. meirceann .i. mear, O'Cl. ¤clann: tar merchlainn Ghaoidel, O'Gr. Cat. 456.13. ¤dánacht recklessness , Fianaig. 70.2 . merdhánacht (oppd. to críndacht), Luc. Fid. 143.14 . ¤dántas, id. O'Hussey TC 225. meardhortadh, TSh. 6636. ¤ghasradh, FM v 1652.9 . ¤gním a rash deed , Gorm. Apr. 14. ¤grád infatuation: (with obj. gen.) éd tre mer-grádh a mná, ZCP viii 108 z . mear-ghrádh na meirdreach, TSh. 5514. ¤gus: co m. garg, LL 137b16 . go m. dían, ZCP x 24.28 . co mēd meargosa, MR 136.24 . ¤laithe: i mmerlaithib errchaidib blustering days, Hib. Min. 66.36 . ¤lasad: a ṡúile ar merlasadh wildly flashing, Ériu v 180.300 . ZCP vi 278.27 . ¤línad: dochóidh gus an mbairille púdair . . . do merlíonadh a mhiosúr ` quickly (? rashly) replenish ', FM vi 2072. ¤ṡáile `brackish water', FM v 1626.7 . ¤scál: cland in merscáil móir (of Mile), ZCP xiii 364.2 , cf. Leb. Gab. i 176.11 . ¤tonn, RC xxix 142.2 . ¤tretell: in mertretill ┐ in rind agha (of Asca- nius), Aen. 2364.
(c) rarely with vb.: do merlabhair an muir talked wildly, raved , CF 736. ro merlasadur a shuili, ZCP vi 58.21 (see merlasad above).


The applicant or the attorney/agent of record, if any, can sign an express abandonment. It is imperative that the attorney or agent of record exercise every precaution in ascertaining that the abandonment of the application is in accordance with the desires and best interests of the applicant prior to signing a letter of express abandonment of a patent application. Moreover, special care should be taken to ensure that the appropriate application is correctly identified in the letter of abandonment.
A letter of abandonment properly signed becomes effective when an appropriate official of the Office takes action thereon. When so recognized, the date of abandonment may be the date of recognition or a later date if so specified in the letter itself. For example, where a continuing application is filed with a request to abandon the prior application as of the filing date accorded the continuing application, the date of the abandonment of the prior application will be in accordance with the request once it is recognized.
(B) filed electronically using EFS-Web.
Since a petition under 37 CFR 1.138(c) will not stop publication of the application unless it is recognized and acted on by the Pre-Grant Publication Division in sufficient time to avoid publication, applicants should transmit the petition electronically using EFS-Web in all instances where the projected publication date is less than 3 months from the date of the petition. This will increase the chance of such petition being received by the appropriate officials in sufficient time to recognize the abandonment and remove the application from the publication process. If the issue fee has been paid, the letter of express abandonment should be directed to the Office of Petitions instead of the Pre-Grant Publication Division and be accompanied by a petition to withdraw an application from issue under 37 CFR 1.313(c). See subsection "I. After Payment of Issue Fee."
Action in recognition of an express abandonment may take the form of an acknowledgment by the Publishing Division of the receipt of the express abandonment, indicating that it is in compliance with 37 CFR 1.138.
It is suggested that divisional applications be reviewed before filing to ascertain whether the prior application should be abandoned. Care should be exercised in situations such as these as the Office looks on express abandonments as acts of deliberation, intentionally performed.
Applications may be expressly abandoned as provided for in 37 CFR 1.138. When a letter expressly abandoning an application (not in issue) is received, the Office should acknowledge receipt thereof, and indicate whether it does or does not comply with the requirements of 37 CFR 1.138.
The filing of a request for a continued prosecution application (CPA) under 37 CFR 1.53(d) in a design application is considered to be a request to expressly abandon the prior application as of the filing date granted the continuing application.
If the letter expressly abandoning the application does comply with 37 CFR 1.138, the Office personnel should respond by using a "Notice of Abandonment" form PTO-1432, and by checking the appropriate box(es). If such a letter does not comply with the requirements of 37 CFR 1.138, a fully explanatory letter should be sent.
A letter of express abandonment which is not timely filed (because it was not filed within the period for reply), is not acceptable to expressly abandon the application. The letter of express abandonment should be placed in the application file but not formally entered.
The application should be pulled for abandonment after expiration of the maximum permitted period for reply (see MPEP § 711.04(a)) and applicant notified of the abandonment for failure to reply within the statutory period. See MPEP §§ 711.02 and 711.04(c).
An amendment canceling all of the claims is not an express abandonment. The Office will not enter any amendment that would cancel all of the claims in an application without presenting any new or substitute claims. See Exxon Corp. v. Phillips Petroleum Co., 265 F.3d 1249, 60 USPQ2d 1368 (Fed. Cir. 2001). Such an amendment is regarded as nonresponsive and is not a bona fide attempt to advance the application to final action. The practice set forth in 37 CFR 1.135(c) does not apply to such amendment. Applicant should be notified as explained in MPEP §§ 714.03 to 714.05.
An attorney or agent not of record in an application may file a withdrawal of an appeal under 37 CFR 1.34 except in those instances where such withdrawal would result in abandonment of the application. In such instances the withdrawal of appeal is in fact an express abandonment.
(D) submitted electronically by EFS-Web.
Applicants are strongly encouraged to either transmit by EFS-Web, or facsimile or hand-carry the petition to the Office of Petitions to allow sufficient time to process the petition and if the petition can be granted, withdraw the application from issue.
See MPEP §§ 711.05 and 1308. In cases where 37 CFR 1.313 precludes giving effect to an express abandonment, the appropriate remedy is a petition, with fee, under 37 CFR 1.183, showing an extraordinary situation where justice requires suspension of 37 CFR 1.313.
A petition under 37 CFR 1.138(c) will not stop publication of the application unless it is recognized and acted on by the Pre-Grant Publication Division in sufficient time to avoid publication. The petition will be granted when it is recognized in sufficient time to avoid publication of the application. The petition will be denied when it is not recognized in time to avoid publication. Generally, a petition under 37 CFR 1.138(c) will not be granted and the application will be published in regular course unless such declaration of express abandonment and petition are received by the appropriate officials more than four weeks prior to the projected date of publication. It is unlikely that a petition filed within four weeks of the projected date of publication will be effective to avoid publication. Also note that withdrawal of an application from issue after payment of the issue fee may not be effective to avoid publication of an application under 35 U.S.C. 122(b). See 37 CFR 1.313(d).
37 C.F.R. 1.138 Express abandonment.
(d) An applicant seeking to abandon an application filed under 35 U.S.C. 111(a) and § 1.53(b) on or after December 8, 2004, to obtain a refund of the search fee and excess claims fee paid in the application, must submit a declaration of express abandonment by way of a petition under this paragraph before an examination has been made of the application. The date indicated on any certificate of mailing or transmission under § 1.8 will not be taken into account in determining whether a petition under § 1.138(d) was filed before an examination has been made of the application. If a request for refund of the search fee and excess claims fee paid in the application is not filed with the declaration of express abandonment under this paragraph or within two months from the date on which the declaration of express abandonment under this paragraph was filed, the Office may retain the entire search fee and excess claims fee paid in the application. This two-month period is not extendable. If a petition and declaration of express abandonment under this paragraph are not filed before an examination has been made of the application, the Office will not refund any part of the search fee and excess claims fee paid in the application except as provided in § 1.26.
As provided in 37 CFR 1.138(d), refund of the search fee and excess claims fee paid in an application filed under 35 U.S.C. 111(a) and 37 CFR 1.53(b) on or after December 8, 2004 may be obtained by submitting a petition and declaration of express abandonment before an examination has been made of the application.
A petition under 37 CFR 1.138(d) will be granted if it was filed before an examination has been made of the application and will be denied if it was not filed before an examination has been made of the application. This averts the situation in which an applicant files a declaration of express abandonment to obtain a refund of the search fee and excess claims fee, the request for a refund is not granted because the declaration of express abandonment was not filed before an examination has been made of the application, the applicant then wishes to rescind the declaration of express abandonment upon learning that the declaration of express abandonment was not filed before an examination has been made of the application, and the Office cannot revive the application (once the declaration of express abandonment is recognized) because the application was expressly and intentionally abandoned by the applicant.
An "examination has been made of the application" for purposes of 37 CFR 1.138(d) once an action (e.g., restriction or election of species requirement, requirement for information under 37 CFR 1.105, first Office action on the merits, notice of allowability or notice of allowance, or action under Ex parte Quayle, 1935 Dec. Comm’r Pat. 11 (1935)) is shown in the Patent Application Locating and Monitoring (PALM) system as having been counted. For purposes of 37 CFR 1.138(d), "before" means occurring earlier in time, in that if a petition under 37 CFR 1.138(d) is filed and an action is counted on the same day, the petition under 37 CFR 1.138(d) was not filed before an examination has been made of the application. In addition, the date indicated on any certificate of mailing or transmission under 37 CFR 1.8 is not taken into account in determining whether a petition under 37 CFR 1.138(d) was filed before an examination has been made of the application.
The PALM system maintains computerized contents records of all patent applications and reexamination proceedings. The PALM system will show a status higher than 031 once an action has been counted. If the status of an application as shown in PALM is higher than 031 before or on the day that the petition under 37 CFR 1.138(d) was filed, the petition under 37 CFR 1.138(d) will be denied and the search fee and excess claims fee will not be refunded except as provided in 37 CFR 1.26.
A petition under 37 CFR 1.138(d) may not be effective to stop publication of an application unless the petition under 37 CFR 1.138(d) is granted and the abandonment processed before technical preparations for publication of the application has begun. Technical preparations for publication of an application generally begin four months prior to the projected date of publication.
The Office recommends that petitions under 37 CFR 1.138(d) be submitted by EFS-Web. The use of form PTO/SB/24B (or PTO/AIA/24B), reproduced in MPEP § 711.01, subsection V., is recommended.
An express abandonment pursuant to 37 CFR 1.138 of an application involved in an interference under pre-AIA 35 U.S.C. 135 is considered an abandonment of the contest and it is construed as a request for entry of an adverse judgment against the applicant. See 37 CFR 41.127(b)(4).
Form PTO/AIA/24 (or PTO/SB/24 for applications filed before September 16, 2012) may be used for filing a letter of express abandonment or a letter of express abandonment in favor of a continuing application. Form PTO/AIA/24A (or PTO/SB/24A for applications filed before September 16, 2012) may be used for filing a petition for express abandonment under 37 CFR 1.138(c) to avoid publication of the application. Form PTO/AIA/24B (or PTO/SB/24B for applications filed before September 16, 2012) may be used for filing a petition for express abandonment under 37 CFR 1.138(d) to obtain a refund of the search fee and excess claims fee.


The MASON AND DIXON LINES, INC., Timothy Leverette, National Truck Leasing, a.k.a. National Truck Funding, Defendants-Appellees.
Before ED CARNES, Chief Judge, HULL, and JULIE CARNES, Circuit Judges.
On July 19, 2013, Cardona and Leverette were both driving eastbound on State Road 826 in Miami, Florida. Cardona was driving a sedan, while Leverette was driving a tractor-trailer truck.2 Just before the collision, Leverette was travelling in the second lane from the left hand median. Cardona was travelling in the same direction in the lane to the immediate right of Leverette. Cardona and Leverette disagreed as to who was at fault for the collision.
Cardona testified that as she was driving on the highway, she saw Leverette’s truck behind her in her rearview mirror. According to her, Leverette failed to yield the right-of-way as he changed lanes to get over to an exit on the right side of the highway; when he changed lanes, he hit her car in the driver’s door. But according to Leverette, Cardona was passing him on his right, and as she entered his lane she struck the right front fender of his truck, causing her to lose control of her car.
When Cardona collided with the truck’s right front fender, her car turned sideways, flipped over, and came to a stop inverted on the median area of the roadway. Florida Highway Patrol Trooper Harold Gracey was driving westbound on the highway when he saw Cardona’s overturned car. He ran over to her and extracted her from the car. An ambulance arrived at the scene and took her to the hospital. Cardona testified that she sustained injuries as a result of the crash, including headaches, back problems, and a fractured shoulder.
Gracey inspected the scene for physical evidence, such as tire marks from Cardona’s car, and prepared an accident report. The report contained a narrative about the accident and a diagram showing how it occurred. It stated that Cardona had operated her car in a careless or negligent manner. It also stated that Leverette operated his truck in a careless or negligent manner and that he made an improper lane change by pulling in front of Cardona’s car.
Gracey prepared an updated accident report on September 26, 2013. The accident narrative and diagram were the same as in the original. But the updated report stated that Cardona did not contribute to the accident. It did not indicate the reason for that change, but Cardona asserted that Gracey made a clerical error in the original report. Like the original report, the updated report stated that Leverette operated his truck in a careless or negligent manner and that he committed an improper lane change by pulling out in front of Cardona’s car.
*2 Cardona filed this lawsuit against Leverette and The Mason & Dixon Lines, asserting various negligence claims against both defendants. The defendants filed a motion in limine to exclude Gracey’s reports. They argued that because Gracey never saw the accident, the accident narrative and the diagram were based on hearsay. They also argued that his opinion about who was at fault should be excluded as unduly prejudicial. Cardona argued that Gracey did not base his accident narrative and opinion on the parties’ statements because the skid marks at the accident site indicated which lanes the vehicles were travelling in. Cardona also argued that it was possible Gracey viewed the accident because he was already at the scene by the time Leverette stopped his truck.
The court ruled that under Florida’s accident report privilege, Gracey’s reports were inadmissible insofar as any portions relied on Cardona’s or Leverette’s statements, but that he could testify as to the estimated damage to the vehicles because those estimates were within his observations. See Fla. Stat. § 316.066(4) (precluding the admission of reports or statements made to law enforcement by a person involved in an accident). It also ruled that Gracey’s opinion about who caused the accident was inadmissible as unduly prejudicial under Federal Rule of Evidence 403.
The case proceeded to a three-day jury trial. Gracey testified about his response to the accident and the physical evidence he saw at the scene. He testified that he walked backwards from Cardona’s car and traced the yaw marks—skid marks caused by a wheel travelling sideways—back to the initial point of impact. He stated that he could ascertain how the accident occurred by tracing those marks, which began in the third lane from the left and ended where Cardona’s car overturned.
At that point, Cardona asked Gracey if he could determine whether Leverette hit Cardona based on the yaw marks. The defendants objected on the ground that Gracey was not listed as an expert, and, in accordance with the court’s ruling on the motion in limine, could not opine on who caused the accident. Cardona agreed that Gracey was not listed as an expert, but argued that as an officer he could render his opinion as to how the accident occurred. The court ruled that he could testify as to what he saw, such as yaw marks or dents on the vehicles, but that he could not give an opinion as to the cause of the accident, even if that opinion was based only on the physical evidence.
The jury found in favor of the defendants.3 Cardona filed a motion for a new trial, contending that (1) Gracey’s reports should have been admitted, (2) Gracey should have been allowed to give his opinion about who caused the accident, and (3) the defendants’ counsel made improper comments during closing argument. Cardona also included a proffer from Gracey in which he stated that his conclusions in his reports were based on his observations of the physical evidence, not on the statements of any of the parties involved in the accident.
The court denied that motion. It ruled that because Gracey was not an expert, he could not provide an opinion as to who caused the accident and could testify only about what he observed at the scene. It also stated that Gracey’s proffer did not affect its ruling. And it rejected Cardona’s argument that the defendants’ counsel made improper comments in closing argument. This is Cardona’s appeal.
We review for Mkts., Inc.abuse of discretion the district court’s evidentiary rulings and its ruling on a motion for a new trial. ML Healthcare Servs., LLC v. Publix Super, 881 F.3d 1293, 1297 (11th Cir. 2018); Hicks v. City of Tuscaloosa, 870 F.3d 1253, 1257 (11th Cir. 2017). Cardona contends that the district court abused its discretion by excluding the reports, limiting Gracey’s testimony, and denying her motion for a new trial based on the defendants’ counsel’s comments during closing argument.
[E]ach crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal.
Fla. Stat. § 316.066(4). The district court ruled that “the portions of the crash report and the updated crash report which are based on the statements and observations of individuals involved in the crash (including the diagrams) are excluded from the evidence [to be] presented at trial.” But it stated that Gracey could testify as to what he observed, such as the damage to the vehicles. Cardona argues that ruling was an abuse of discretion because Gracey’s accident reports were not based on the parties’ statements but on the physical evidence he observed at the scene.
Cardona next argues that the district court erred in prohibiting Gracey from giving his opinion about who caused the accident.
That ruling was not an abuse of discretion. Because Gracey was not an expert, he could offer opinion testimony only if it was “not based on scientific, technical, or other specialized knowledge.” Fed. R. Evid. 701(c). As the district court stated, Gracey’s opinion that Leverette caused the accident, which was based on the yaw marks from Cardona’s car, required the kind of specialized knowledge that an accident reconstruction expert could provide.5 See United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (stating that a doctor’s diagnosis of an injury “would be permissible lay testimony, but her statement about the cause of the injury” was a hypothesis, and noting that the “ability to answer hypothetical questions is the essential difference between expert and lay witnesses”) (quotation marks and alterations omitted). Because Gracey was not an expert, the district court did not abuse its discretion in limiting his testimony to his personal observations.
That argument fails. Contrary to Cardona’s assertion, counsel’s reference to the “physics” of the crash was not based on the excluded testimony of the defendants’ accident reconstruction expert; counsel was using the word “physics” in a colloquial sense. And Gracey testified during trial that yaw marks are caused by a tire moving sideways, so counsel’s comment on that point was based on the evidence. Neither of those comments was so “plainly unwarranted and clearly injurious” as to warrant a new trial. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1282 (11th Cir. 2008) (quotation marks omitted). And after Cardona’s objection, the court reminded the jury that the attorneys’ comments were not evidence. See Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988) (noting that appellate courts look to whether a curative instruction was given to determine whether comments during closing argument are improper). As a result, the district court did not abuse its discretion in denying Cardona’s motion for a new trial based on the comments during closing argument.
The parties agreed to try the case before a magistrate judge. See 28 U.S.C. § 636(c).
There was no dispute that The Mason & Dixon Lines was vicariously liable for any negligence of Leverette.
After deliberations began, the jury asked for the accident reports. With the agreement of both parties, the court informed the jury that pursuant to Florida law, the accident reports were not admitted into evidence and could not be provided.
Cardona argues that the accident reports were admissible under the public records hearsay exception, Fed. R. Evid. 803(8), and under Rule 403, but those arguments fail because the reports (insofar as they relied on the parties’ statements) were inadmissible under the Florida privilege.
Both parties planned to call accident reconstruction experts, but the district court did not allow them to testify.
Cardona also argues that the district court’s evidentiary rulings warrant a new trial, but that argument fails because those rulings were not an abuse of discretion.
Next Next post: ALFA ADHESIVES d/b/a Simalfa, Plaintiff, v. A. DUIE PYLE, INC., Defendant.


Rule 7.2(c)(1)(D), which prohibits "a reference or testimonial to past successes or results obtained, except as allowed in the Rule regulating information about a lawyer’s services provided upon request"
Rule 7.2(c)(1)(J), which prohibits the "portrayal of a judge or a jury, the portrayal of a lawyer by a non-lawyer, the portrayal of a law firm as a fictionalized entity, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise implies that lawyers are associated in a law firm if that is not the case"
and Rule 7.2(c)(10), which provides as follows: "Any words or statements required by these Rules to appear in an advertisement or unsolicited written communication must be clearly legible if written or intelligible if spoken aloud. All disclosures and disclaimers required by these Rules shall be clear and conspicuous. Written disclosures and disclaimers shall use a print size at least as large as the largest print size used in the advertisement or unsolicited written communication, and, if televised or displayed electronically, shall be displayed for a sufficient time to enable the viewer to easily see and read the disclosure or disclaimer. Spoken disclosures and disclaimers shall be plainly audible and spoken at the same or slower rate of speed as the other spoken content of the advertisement. All disclosures and disclaimers used in advertisements that are televised or displayed electronically shall be both spoken aloud and written legibly."
With regard to the last provision, the plaintiffs only challenged the portion relating to font size, speed of speech, and the requirement that a disclaimer be spoken and written in televised and electronic advertisements.
The Supreme Court's 2010 term opened with five cases involving the law of lawyering on the docket, and we're now up to a total of eleven by my count. Here are the cases, those decided listed first, then argued but not decided, followed by a list of cases that the Court will hear in the upcoming weeks.
Connick v. Thompson (Argued October 6) Connick questions the imposition of failure-to-train liability on a district attorney's office. A jury awarded $14 million to a former death-row inmate who spent 18 years in prison, released after prosecutorial misconduct was revealed. More details from a previous post here.
Cullen v. Pinholster (Argued November 9) At issue in Cullen is whether defense counsel was ineffective in failing to consult with an additional psychiatrist and more family members to produce sufficient mitigating evidence.
Ashcroft v. al-Kidd (to be argued 3.2.11) Ashcroft questions the availability of prosecutorial immunity for then-Attorney General Ashcroft's use of the federal material witness warrant as a tool for preventative detention and investigation of terrorist suspects.
Turner v. Price (to be argued 3.23.11) Turner addresses an indigent defendant's constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration. Turner was jailed for failure to pay child support (he had no money to make the payments), and was neither represented by counsel nor advised by the court about his right to counsel.
Missouri v. Frye and Lafler v. Cooper (unscheduled) These cases involve separate appeals but are linked together because they address the same issue: whether bad advice from a lawyer during plea negotiations may impact a subsequent guilty verdict. Frye's attorney neglected to inform him about two deals offered by prosecutors before he pled guilty. Cooper was advised against taking a plea deal by his attorney only to be found guilty.
US v. Jicarilla Apache Nation (unscheduled) Here the federal government is claiming attorney-client privilege in an effort to withhold information from the Jicarilla Apache Nation Indian tribe about property the government holds in trust on the tribe's behalf.
Congressman Darrell Issa, Chairman of the House Government Oversight Committee, has written to OSC requesting an investigation of OPA political activity on behalf of Democrats in the 2010 election cycle, including alleged Hatch Act violations in the Sestak-Romanoff controversy.
A few days before release of this Report, the President shut down OPA and moved its operations out of the government to his political headquarters Chicago.
*In text accompanying footnote 66 of this Report, OSC adopts a narrow interpretation of § 7324(b), a provision which allows some White House staff members and senior political appointees in the Executive Branch agencies to conduct partisan political activity in government buildings and during normal working hours. OSC uses sick leave regulations by analogy to determine who is and is not eligible for the exception. I never liked this exception – and I believe it should be abolished – so the more narrowly construed it is the better.
*OSCs interpretation of the § 7324(b) exception is contrary to the way OPA has functioned over the past several administrations, including Clinton, Bush II and probably the first two years of Obama (I will provide some details in the comment area for this post). Indeed, OSC’s interpretation is sufficiently narrow that it allows only the most senior officials to conduct political activity inside the White House, and denies them the middle level and support staff they need for an effective political operation. For reasons I have already explained in previous posts here, this is as it should be, because these political operations do not belong in the White House to begin with.
*Under OSC’s interpretation of the Hatch Act, President Obama had no choice but to move OPA out of the White House and to Chicago. Had the OPA remained at the White House or anywhere else in the government it would have been ineffective or would have violated the Hatch Act.
*While I commend OSC for addressing this problem now, one must ask why this issue was not addressed before. Everyone has known about extensive political operations inside the White House going back to the days of Jimmy Carter, and that these operations became even more salient in the 1990’s and early 2000’s. Lawyers in the White House Counsel’s office furthermore over the past several administrations have been in regular contact with OSC about White House political operations and in many cases discussed with OSC specifically what OPA was doing or what OPA proposed to do. White House Counsel’s Office lawyers consult OSC because they need clear legal guidance from OSC, and then decisive support from OSC. OSC’s construction of the § 7324(b) exception in this Report is one example of Hatch Act guidance that would have helped White House lawyers keep OPA political operations in check. Simply saying “it doesn’t feel right” or “it violates the spirit of the Hatch Act” will get a lawyer nowhere when giving guidance to one of the most powerful offices in the White House. In sum, where has OSC been on this all of these years?
*This Report can become yet one more excuse for partisan accusations, as Democrats point to violations described in the Report, and Republicans wait for the OSC investigation of the Obama White House requested by Congressman Issa, hoping to use it in November 2012. Alternatively, leaders of both political parties can acknowledge that, as described in this Report, OPA has for many years violated the spirit if not the letter of the Hatch Act and has no business being in the White House. We are fortunate that at least for the time being the President has deicided to move his political people to Chicago.
Ben Barton, "The Lawyer-Judge Bias in the American Legal System"
Kevin Michels, "Lawyer Independence: From Ideal to Viable Legal Standard"
When, if ever, does a lawyer have an obligation to exercise independent judgment? While the question drives at the deepest commitments of the profession, it has been left largely unexplored in our leading treatises on legal ethics and lawyering. Lawyers, scholars, and judges have waxed eloquent on the ideal of independence, and have despaired of its prospects of renewal in a competitive, market-driven profession. The courts, however, have offered limited guidance on the question of lawyer independence. Indeed, the impression that one might gain from a review of the case law and treatises is that lawyer independence - whatever its virtues - is more a lost ideal than a legal requirement.
In fact, however, Rule 2.1 of the Model Rules of Professional Conduct (adopted by nearly every state) requires that lawyers “exercise independent professional judgment” in “representing a client.” This demand raises a host of questions about the lawyer’s role. What is lawyer independence? If lawyers are “agents” who seek to carry out client objectives, how can lawyer independence be squared with the notion of the client as decisionmaker and principal? Is lawyer independence enforceable, or does the paucity of cases construing the requirement suggest that it can never be more than an aspiration? Can we frame a standard that is sufficiently precise for lawyers to understand when they may not defer to client directives?
This Article seeks to answer those questions. In so doing, it seeks to develop a viable legal standard of lawyer independence grounded in Model Rule 2.1. The Article considers the purpose of lawyer independence, when it applies and when it does not, and what it requires of counsel. It contends that the law of lawyer independence, once understood, will require attorneys to revisit core assumptions about their role and will substantially reduce the incidence of wrongdoing in corporate transactions. The Article invites states to breathe life into a rule that has lain dormant on their books for too long.
What Should We Do About Ethics and Conflicts at the Supreme Court?
As we know, the Code of Conduct for U.S. Judges does not apply to the Justices. They are the only judges in the nation not governed by ethical rules.
The disqualification statute does apply. But a motion to disqualify is made by the Justice whose disqualification is sought and will not be reviewed by other Justices (although it could be, nothing stops them except perhaps their preference not to have their own decisions reviewed).
Recusal motions at the Supreme Court are rare. When they are made, they will often lack merit on their face. But sometimes not. Justice Scalia's opinion rejecting the motion to recuse himself in what has come to be known as the Cheney Duck Hunting Case is an example of a strong motion. Scalia's opinion rejecting it is weak (and in my view quite wrong), but there was no one there to say why or point out the gaps in his reasoning.
Requiring recusal motions to be decided by another Justice may be a solution, though perhaps at the expense of collegiality on occasion. And wouldn't the other Justice have an interest in the question, too, because how it's decided could determine the outcome of the appeal.
Imposing the Code of Conduct on the Supreme Court is a further solution. Maybe Congress could do that, unless it would violate separation of powers, but why would it? The recusal statute does not. Allowing retired Justices to fill a vacancy occasioned by recusal avoids the risk of a 4-4 split.
What else can we do? Or should we do nothing? Sometimes nothing is the best of a set of imperfect solutions.
Bill Simon asks, "Does the lawyer have to tell the client when she helps out the other side?"
In a recent article in the Georgetown Journal of Legal Ethics, I argued that lawyers sometimes have a duty to disclose adverse information about legal authority to an opposing party even when the disclosure would disadvantage the client. In a December post that I just saw Monroe Freedman considers it an objection to my argument (among many) that it implies that the lawyer should make the disclosure without telling the client. Since several other people, including Steve Pepper and Kate Kruse, have echoed this concern, I want to respond to it.
I think their concern is basically this: If the lawyer does not tell the client about the disclosure, then she is violating her duty to keep the client informed of material information. If she does tell the client, the client may object and then respond by discharging the lawyer and finding a more zealous replacement.
Suppose you’re representing a client in high-stakes litigation and you learn that the judge is open to bribery. Your client is the only party who could afford a sufficient bribe, and the judge is about to make a decision on a matter that is likely to be decisive. Presumably, everyone agrees you have a duty not to facilitate the bribe. Do you have a duty to tell the client that he has this opportunity but that you are not going to help him take it?
I suppose if the client is expecting you to bribe the lawyer, you should disillusion him on this point. But what if the opportunity has never occurred to the client? Let’s suppose that there are lawyers in town who would pay the bribe. Should you tell the client about your position so that he can discharge you and go to these more accommodating lawyers?
I doubt if it’s controversial to say there’s no duty to inform the client about this opportunity. The matter is simply not open to decision by the client. Most clients wouldn’t be interested in the opportunity. And with respect to those who would, telling them would amount to counseling or assisting unlawful activity.
I assume Freedman et al. agree about the bribery example but would insist the Mistake-of-Law example is different because the lawyer has no duty to disclose there. But the main theme of my argument in the article was that the lawyer does have a duty to disclose there. If I am correct about that, the objection about client disclosure is wrong. There’s no duty for the lawyer to disclose where the client has no right to make a decision on the matter and where he could not make any legitimate use of the information.
It’s possible that Pepper and Kruse have a somewhat different objection. If the lawyer discloses to the client where the client can see that assisting the adverse party is a duty, the client is likely to authorize the lawyer to do the right thing, and that’s good. So not disclosing deprives the client of an opportunity to do the right thing. First, I don’t think law-respecting clients need or want their virtue to be tested in this manner. Second, even if they do, depriving them of whatever satisfaction they get from resisting temptation is the price we have to pay for not encouraging bad behavior by the others.
Of course, the critics don’t agree that the law is disrespected by failure to disclose to the adverse party. Fine; they should explain why not. But the client disclosure argument is a red herring.
Is a "civil Gideon" program the answer to unemployed lawyers and the mortgage foreclosure crisis?
Jonathan Turley discusses the price of Justice Scalia's political stardom: "At best, Scalia's appearance [at an event for new conservative members of the House of Representatives] can be viewed as a pep talk. At worst, it smacks of a political alliance."
On the US Supreme Court and female lawyers: "While the high court now has three women on its nine-member bench — the most ever — the justices are still more than five times more likely to hear an argument from a male attorney than from a woman, an Associated Press review shows."
Katherine Kruse recently posted on SSRN her forthcoming Arizona Law Review article, The Jurisprudential Turn in Legal Ethics. I recommend it.


Court grants plaintiffs’ motion for summary judgment relating to DMCA and Communications Act claims for distributing software that allows unlawful free access to plaintiffs’ satellite service, holding that satellite television piracy software distributed by defendant is both a “device” and “equipment” within the meaning of § 605(e)(4) of the Communications Act.
Plaintiff DISH Network L.L.C. provides video, audio, and data services via a direct broadcast satellite system to more than 13 million subscribers throughout the United States. Plaintiff EchoStar Technologies L.L.C. designs and distributes receivers and other equipment for the DISH Network System. Plaintiff NagraStar L.L.C. provides smart cards and access control software that prevent unauthorized viewing of DISH Network programming. Plaintiffs moved for summary judgment on Counts I and III of their Amended Complaint against defendant Robert Ward. These claims were, respectively, a claim under the Digital Millennium Copyright Act (DMCA) and a claim under § 605(e)(4) of the Communications Act (Title 47 U.S.C.).
In their Amended Complaint, plaintiffs alleged that Ward, operating under the online aliases “Thedssguy” and “Veracity”, offered piracy software for others to download and use. This piracy software was designed to be used with free-to-air satellite receivers, which normally are only capable of receiving unencrypted, freely available satellite transmissions. The piracy software Ward allegedly distributed effectively converted free-to-air receivers into DISH Network-capable receivers, allowing users to descramble encrypted DISH Network programming and view it without paying for it.
On July 9, 2009, a federal grand jury in California indicted Ward, charging him with one count of conspiracy to violate the DMCA. After the F.B.I. arrested Ward in Florida on July 13, 2009, he pleaded not guilty at his arraignment before the USDC for the Southern District of California. When Ward’s deposition was taken in the DISH Network case on August 6, 2009, he asserted his privilege under the Fifth Amendment, refusing to answer most questions on the grounds that his answers would incriminate him. On October 14, 2009, Ward entered a guilty plea in the criminal case against him. Pursuant to a Joint Motion, the parties in the DISH Network case agreed to stay the trial in this action until after Ward’s sentencing. As the court noted, this stay had no effect on its determination of plaintiffs’ motion for summary judgment on Counts I and III. The court also noted that, although it was entitled to draw an adverse evidentiary inference based on Ward’s refusal to testify at deposition, it relied principally on the independent factual record, which was presented by the plaintiffs.
Analyzing plaintiffs’ DMCA claim, the court noted that 17 U.S.C. § 1201(a)(2) “prohibits persons from providing or offering to the public any technology that satisfies one of three criteria: (1) the technology is designed or produced for circumventing a measure that controls access to copyrighted work; (2) the technology has only limited commercial purpose or use other than for circumventing an access control measure; or (3) the technology is marketed for use in circumventing an access control measure.” The court stated that the record reflected that the DISH Network security system is an access control measure under the DMCA and that Ward offered and provided software designed to circumvent that security over the internet. The court also stated that the software files Ward provided allowed users to circumvent DISH Network’s security system and that those files had no other commercially significant purpose or use. As Ward failed to produce evidence to rebut plaintiffs’ evidence, the court granted summary judgment for plaintiffs on their DMCA claim.
Considering plaintiffs’ Communications Act claim under 47 U.S.C. § 605(e)(4), the court stated that the question of whether piracy software is a “device” or “equipment” within the meaning of the statute was a matter of first impression. Section 605(e)(4) bars any person from, inter alia, distributing “any electronic, mechanical, or other device or equipment . . . primarily of assistance in the unauthorized decryption of satellite cable programming . . . .” Plaintiffs argued that the piracy software Ward distributed is both a “device” and “equipment” within the meaning of the phrase “any electronic, mechanical, or other device or equipment.” The court agreed that the plain meanings of the terms “device” and “equipment” include software. The court also found it persuasive that a definition of “telecommunications equipment” applicable to § 605(e)(4) includes “software integral to such equipment,” that several state statutes modeled on § 605(e)(4) support the meaning of “device” as including software, and that criminal prosecutions for distribution of piracy software are brought under § 605(e)(4). Having found piracy software to be within the meaning of § 605(e)(4), the court found, as required by the statute, (1) that Ward distributed piracy software on internet websites and (2) that the software was “primarily in assistance of unauthorized decryption” of DISH Network programming. Accordingly, the court granted summary judgment for plaintiffs on their Communications Act claim.
Turning to remedies, the court first addressed the issue of statutory damages. The court determined damages under the DMCA, finding the facts of the case more relevant to that statute than to the Communications Act. The court calculated damages totaling $51,148,200, based upon the minimum amount allowed under the statute for each act of piracy ($200) and 255,741 piracy software downloads. Next, the court permanently enjoined Ward from “creating or distributing any form of technology that is designed for, primarily used for, or marketed for circumventing the DISH Network security system” and from “engaging in any form of circumvention or interception with respect to DISH Network’s security system or satellite signal.” Finally, the court awarded plaintiffs attorneys’ fees and costs.


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This website uses the "Google AdWords Conversion Tracking" feature of Google Ireland Limited, Gordon House, Barrow Street, Dublin 4, Ireland ("Google"). Google AdWords Conversion Tracking uses so-called "cookies", text files that are stored on your computer that allow you to analyze the use of the website by you when you've clicked on a Google ad. The cookies are valid for a maximum of 90 days. Personal data is not stored. As long as the cookie is valid, Google and we as the website owner can see that you've clicked an ad and reached a specific landing page (e.g., order confirmation page, newsletter signup). These cookies can not be tracked across multiple websites by different Ad-Words participants. The cookie generates conversion statistics in Google AdWords. These statistics include the number of users who have clicked on one of our ads. In addition, it counts how many users have come to a landing page that has been tagged with a "conversion tag". However, the statistics do not contain any data that identifies you.
In order to protect your data against unwanted access as comprehensively as possible, we take technical and organizational measures. We use an encryption method on our website. Your information will be transferred from your computer to our server and vice versa via the Internet via TLS encryption. You will recognize this by the fact that the lock symbol is closed in the status bar of your browser and the address bar starts with https: //.
You will receive our newsletter subject to the requirements of § 7 Abs. 3 UWG or Art. 6 Abs. 1 S. 1 lit. f) DSGVO. These conditions apply if, in connection with the sale of one of our products (or services), we have received from our customer his electronic mail address, we use the address for direct mailing for our own similar goods or services, the customer has not objected to the use and the customer in collecting the address and in each case clearly and clearly indicated that he can object to the use at any time, without this, other than the transmission costs incurred according to the basic rates. Our legitimate interest is to inform you about offers for awnings, spare parts or care products. In order to be able to optimize our newsletter, the opening rate and time are understood. If the next interaction is more than five years ago, your email address will be deleted from the newsletter mailing list.
You can contradict the use of the e-mail address for the newsletter dispatch at any time. If you no longer wish to receive a newsletter in the future, you can unsubscribe at any time by e-mail to info(at)varisol.de.
You have the opportunity to contact us via a web form. To use our contact form, we need your e-mail address. You may or may not provide further information.
The legal basis of the processing is Art. 6 para. 1 sentence 1 lit. b) or f) GDPR. Your data will only be processed to answer your request and then deleted. You have a right of objection under Art. 21 GDPR. A passing on to third does not take place.
We process your personal data in accordance with the applicable data protection regulations on the basis of § 26 BDSG. We process the data that you disclose to us as part of your e-mail application solely for the purpose of selecting applicants. Data processing for other purposes does not take place.
You yourself determine the scope of the data that you would like to submit to us as part of your e-mail application. E-mail applications are transmitted electronically to our personnel department and processed there as quickly as possible. The transmission is encrypted. As a rule, applications are forwarded to the heads of the responsible specialist departments in our company. In addition, there is no disclosure of your data. Your information will be treated confidentially in our house. If unsuccessful, your documents will be deleted after three months.
In the event that we may also consider your application for other or future job postings, we kindly ask for a note on the application form. We then process your data on the basis of Art. 6 para. 1 p. 1 lit. a) GDPR.
In our password-protected dealer area, we provide useful information to our specialist dealers. From promotional material to technical drawings, manuals and more, we offer you first-class support. In addition, as a registered dealer, additional material is available on the public pages such as our FAQ and downloads (will only be visible there after registration). When you register for the merchant area for the first time, you only need to enter the data required to identify it as a merchant. When registering, it is sufficient to enter your e-mail address and the password you have selected. The data processing is based on Art. 6 (1) sentence 1 lit. f) GDPR on our legitimate interests, to be able to offer you this area voluntarily and in accordance with Art. 6 para. 1 sentence 1 lit. b) GDPR for contract execution.
You have the right to ask for confirmation as to whether personal data relating to you will be processed; If this is the case, you have a right to information about these personal data and to the information listed in Article 15 GDPR.
You also have the right to demand that personal data relating to you be deleted without delay if one of the reasons listed in detail in Art. 17 GDPR applies, eg. For example, when the data is no longer needed for the purposes pursued.
You have the right to demand the restriction of processing if one of the conditions listed in Art. 18 GDPR is met, eg. For example, if you objected to processing for the duration of any examination.
In certain cases, which are listed in detail in Art. 20 GDPR, you have the right to receive personal data concerning you in a structured, common and machine-readable format or to request the transmission of this data to a third party.
Are data based on Art. 6 para. 1 para. 1 lit. f) GDPR (data processing to safeguard legitimate interests), you have the right to object to the processing at any time for reasons that arise from your particular situation. We will then no longer process the personal data unless there are evidently compelling legitimate grounds for processing that outweigh the interests, rights and freedoms of the data subject, or the processing is for the purpose of enforcing, pursuing or defending legal claims.
You have gem. Art. 77 GDPR the right to complain to a supervisory authority if you believe that the processing of your data violates data protection regulations. The right of appeal may be invoked, in particular, with a supervisory authority in the Member State of your place of residence, your place of work or the place of the alleged infringement.

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D.C. Law Library - § 22–2709. Detaining an individual in disorderly house for debt there contracted.
↪ § 22–2709. Detaining an individual in disorderly house for debt there contracted.
§ 22–2708. Causing spouse or domestic partner to live in prostitution.
§ 22–2710. Procuring for house of prostitution.
§ 22–2709. Detaining an individual in disorderly house for debt there contracted.
Any person or persons who attempt to detain any individual in a disorderly house or house of prostitution because of any debt or debts such individual has contracted, or is said to have contracted, while living in said house of prostitution or disorderly house shall be guilty of a felony, and on conviction thereof be imprisoned for a term not less than one year nor more than 5 years. In addition to any other penalty provided under this section, a person may be fined an amount not more than the amount set forth in § 22-3571.01.
For temporary (90 days) amendment of this section, see § 306(b) of the Criminal Fine Proportionality Emergency Act of 2013 (D.C. Act 20-45, April 1, 2013, 60 DCR 5400, 20 DCSTAT 1300).


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We generally only collect and use personal data of our users insofar as this is necessary to provide a functional website as well as our contents and services. Personal data of our users is only collected and processed regularly on a contractual basis or with the consent of the user. An exception hereto applies in those cases where obtaining prior consent is not possible for factual reasons and processing the data is permitted by law.
Insofar as we obtain the consent of the data subject for the processing of personal data, Art. 6 para. 1 lit. a EU General Data Protection Regulation (GDPR) serves as the legal basis.
If the processing of personal data is required for the fulfilment of a contract to which the data subject is a party, Art. 6 para. 1 lit. b GDPR serves as the legal basis. This also applies to data processing that is necessary to carry out pre-contractual measures.
If the processing is necessary to safeguard a legitimate interest of our company or a third party and if the interests, fundamental rights and freedoms of the data subject do not outweigh the first-mentioned interest, Art. 6 para. 1 lit. f GDPR serves as the legal basis for processing.
The personal data of the person concerned will be deleted or blocked as soon as the purpose of storage ceases to apply. Furthermore, data may be stored if this is required by the European or national legislator in EU regulations, laws or other provisions to which the data controller is subject. The data shall also be blocked or deleted if a storage period prescribed by the aforementioned standards expires unless there is a need for further storage of the data for the conclusion or fulfilment of a contract.
Every time a user visits our website our system automatically collects data and information from the computer system of the calling computer.
The storage in log files ensures the functionality of the website. Moreover, the data serves the purpose of optimising our website and ensuring the security of our information technology systems. An evaluation of the data for marketing purposes does not take place in this context.
For these purposes our legitimate interest also lies in the processing of data in accordance with Art. 6 para. 1 lit. f GDPR.
The data is deleted as soon as it is no longer necessary for achieving the purpose it was collected for. If the data is collected for the purpose of providing the website, this occurs when the respective session is terminated.
If the data is stored in log files, this occurs at the latest after 365 days. Storage beyond this is possible. In this case the IP addresses of the users are deleted or made unrecognisable so that an assignment to the calling client is no longer possible.
The collection of data for the purpose of providing the website is technically essential for the operation of our website. The storage of data in log files is necessary to safeguard our platform. Consequently, there is no possibility of objection on the part of the user.
For these purposes our legitimate interest also lies in the processing of personal data in accordance with Art. 6 para. 1 lit. f GDPR.
We will personalise the newsletter you have subscribed to and also evaluate your user behaviour. For this purpose we use technology that enables us to see if and when an e-mail was opened, which links in the e-mail were followed by the respective recipient and whether further enquiries or orders were triggered by the user via our shopping basket or enquiry systems.
The data is not passed on to third parties in connection with data processing for sending newsletters. The data is used exclusively for sending the newsletter.
The legal basis for processing the data after registration of a newsletter by the user is Art. 6 para. 1 lit. a GDPR if the user has given his consent.
The purpose of collecting the e-mail address is to send the newsletter.
The evaluation of the concrete use of the newsletter serves the purpose of optimising our newsletter in future and making it more attractive for the addressees.
The data is deleted as soon as it is no longer necessary for achieving the purpose it was collected for. Therefore, the user’s e-mail address is stored for as long as the subscription to the newsletter is active.
Other personal data collected in the course of the registration process will generally be deleted after a period of 365 days unless this needs to be stored longer according to other legal provisions such as for documenting the conclusion of contracts by sending shopping baskets via the platform.
The subscription to the newsletter can be cancelled by the respective user at any time. There is a corresponding link in each newsletter for this purpose.
This also allows you to revoke your consent to the storage of personal data collected during the registration process.
Alternatively, you can contact us via the chat windows and e-mail address provided. In this case, the personal data of the user transmitted with the e-mail is stored.
The legal basis for processing the data is Art. 6 para. 1 lit. a GDPR if the user has given his consent.
The legal basis for processing the data transmitted in the course of sending an e-mail is Art. 6 para. 1 lit. f GDPR. If the e-mail contact aims at the conclusion of a contract, then the additional legal basis for the processing is Art. 6 para. 1 lit. b GDPR.
The processing of the personal data from the input mask only serves the purpose of establishing contact. In the event of contact by e-mail, this also constitutes the necessary legitimate interest in the processing of the data.
Any other personal data processed during the sending process serves to prevent misuse of the contact form and to ensure the security of the information technology systems.
The data is deleted as soon as it is no longer necessary to achieve the purpose it was collected for. For personal data from the input mask of the contact form and any data that was sent by e-mail, this is the case when the respective conversation with the user is finished. The conversation is finished when it can be taken from the circumstances that the facts in question have been finally clarified.
The additional personal data collected during the sending process is deleted after a period of 365 days at the latest.
In this case any personal data stored in the course of the contact will be deleted. This shall not apply insofar as we are subject to regulations under tax and commercial law on the storage of such messages. The messages will not be deleted but only kept for the purpose of storage.
Furthermore, for the same purposes we will also process the data the user voluntarily provides when setting up his account and within the scope of participating in trading on the platforms.
The data is initially used for providing the respective user account. It is stored in a central user account of the user and can be reviewed, amended and updated at any time.
For the purpose of providing your user account we will set up a publicly visible profile page on our platform for you where your company and, if you so wish, also your offers can be viewed.
You have the possibility to add further information to your publicly visible profile in order to enable better accessibility for other users as well as target-oriented recommendations for you.
For the purpose of invoicing we will also collect and process the payment details of the user, i.e. the bank account details provided by him as well as any other payment and billing details.
For the purpose of settling costs for using the services we use qualified payment providers to which the payment details are forwarded for certain payment methods for the purpose of debiting the billed amount. This applies in particular if statutory requirements or internationally agreed financial safety standards such as PCI DSS (Payment Card Industry Data Security Standard) should make this necessary.
In the event a user uses the observation or notification functions for offers within the scope of his user account, his data will be processed in order to send him corresponding status notifications regarding the observed offers.
Registered users are automatically sent needs-oriented product recommendations or search suggestions. In addition, search results on the platform are prioritised. To this end search results or order details of registered users are evaluated. The data collected in this way is pseudonymised by technical measures. Therefore, an assignment of the data to the calling user is no longer possible. The data is not stored together with any other personal data of the user.
In addition, the user also has the possibility to actively participate in trading and place offers or initiate or conclude contracts with third parties on the platform.
For this purpose the user initially has the possibility to exchange messages on the platform in order to post enquiries or submit offers.
Furthermore, the user has the possibility to conclude contracts with other users. We pass on the user’s personal data required for initiating and executing contracts concluded by us via the platform to the respective contracting party on the platforms. This data relating to enquiries and transactions is also stored in the respective customer account. The same applies for messages exchanged between members which are also stored in the customer account.
Dispatch, invoice and other data the user enters for a transaction as well as information required for tax as well as customs clearance purposes (e.g. tax number or other identification numbers) as well as relevant dispatch information (such as consignment number and information on consignment tracking) are also stored in the respective customer account and passed on to the contracting party of the transaction.
For the purpose of prevention, detection, mitigation and investigation of unlawful activities, we will process data on the use of platforms and goods or services offered as well as carried out transactions. This may be the case, for example, if we are made aware of instances of fraud or possibly prohibited or unlawful activities. This also occurs if we are made aware of members involved in transactions and are asked to assist in the clarification of such cases.
If a user commissions further services, i.e. additional services subject to a fee or advertising services, the aforementioned points shall apply correspondingly.
For processing data to the aforementioned extent for the fulfilment of a contract to which the user is a party or the execution of pre-contractual measures Art. 6 para. 1 lit. b GDPR serves as the legal basis.
The user is required to register for the fulfilment of a contract with the user or for the execution of pre-contractual measures.
We operate an Internet trading platform on which users can conclude binding contracts with third parties. The provision of the platform is a continuing obligation subject to a fee which requires registration.
A registration on the part of the user is required for making available certain contents and services on our website.
In order to enable the conclusion of contracts with third parties, contents assigned to a certain user account must be stored on our platform. Therefore, setting up a user account is also required.
Moreover, the processing of data serves the purpose of providing you with a secure trading environment corresponding to your requirements.
The data is deleted as soon as it is no longer necessary to achieve the purpose it was collected for.
This is the case for data collected during the registration process for the fulfilment of a contract or execution of pre-contractual measures if the data is no longer required for the fulfilment of the contract. Even after conclusion of the contract it may remain necessary to store personal data of the contracting party in order to meet contractual or statutory requirements.
If the data is stored by us for the execution of contracts with other users, this data is generally stored for the duration while both users involved in the transaction are registered on our platform.
As a user you may cancel your registration at any time. You can have the stored data relating to you modified at any time.
If the data is required for the fulfilment of a contract or the execution of pre-contractual measures, a premature deletion of the data is only possible provided there are no contractual or statutory obligations to the contrary.
If you have given us your express consent to this during or after your registration on our platform in accordance with Section 6 Paragraph 1 Sentence 1 lit. a of the German General Data Protection Regulation (GDPR), we will send your e-mail address to Trusted Shops GmbH, Subbelrather Str. 15c, 50823 Cologne, Germany, so that they can send you a one-time customer review reminder by e-mail. This consent can be revoked at any time by sending a message to us or directly to Trusted Shops.
The Trusted Shops Trustbadge is integrated on this website to display our collected customer reviews as well as to offer the Trusted Shops review to members after registration.
When the Trustbadge is accessed, the web server automatically saves a so-called server log file, which also contains your IP address, date and time of access, transferred data volume and the requesting provider (access data) and documents the access. Individual access data is stored in a security database for the analysis of security anomalies. The log files are automatically deleted at the latest 90 days after creation.
Google Analytics uses "cookies", which are text files placed on your computer, to help the website analyse how users use the site. The information generated by the cookie about your use of this website will as a rule be transmitted to and stored by Google on a server in the United States. However, in the case of activating the IP address anonymisation on this website Google will shorten your IP address within member states of the European Union or in other states party to the agreement on the European Economic Area beforehand. Only in exceptional cases may the full IP address be transmitted to a Google server in the USA and shortened there.
Furthermore, you can prevent the transfer of the data generated by the cookie and the data relating to your use of the website (including your IP address) to Google as well as the processing of this data by Google by downloading and installing the browser plugin under the following link (http://tools.google.com/dlpage/gaoptout?hl=de).
The storage of Google Analytics cookies is carried out on the basis of Art. 6 para. 1 lit. f GDPR. These are stored for an indefinite period of time provided you do not make use of your opt out possibilities.
We also use the remarketing or “similar target groups” functions in AdWords of Google Inc. (“Google”). This function enables us to address users who have already visited our website before. In doing so, we can display target-oriented advertising when a user visits a different website on which Google has placed advertisements for our website.
This data use is generally carried out by creating pseudonyms. If you have given Google your consent to having your web and app browser history linked to your Google account and information from your Google account used to personalise advertisements, Google will use data of registered users together with the data of Google Analytics to create target group lists for cross-device remarketing purposes. To this end the data of Google Analytics is temporarily linked to the Google account of users to optimise target groups.
The storage of Google remarketing cookies is carried out on the basis of Art. 6 para. 1 lit. f GDPR. These are stored for an indefinite period of time provided you do not make use of your opt out possibilities.
You can exercise your right of access pursuant to Art. 15 GDPR at any time as to whether personal data relating to you may be processed by us.
You can exercise your right to rectification pursuant to Art. 16 GDPR at any time and request the rectification of inaccurate personal data relating to you.
You can exercise your right to restriction of processing pursuant to Art. 18 GDPR at any time and request the restriction of processing provided that the legal requirements for this are met.
You can exercise your right to erasure pursuant to Art. 17 GDPR at any time and request the immediate erasure of personal data relating to you if this data is no longer required for the purpose for which it was collected or processed in any other way.
You can exercise your right to notification pursuant to Art. 19 GDPR at any time. If you have exercised your right to rectification, erasure of personal data or restriction of processing, we are obliged to notify all recipients to whom any personal data relating to you has been disclosed about this rectification, erasure or restriction of processing unless this proves to be impossible or involves a disproportionate effort. You have the right to be notified of these recipients.
You can exercise your right to data portability pursuant to Art. 20 GDPR at any time. You have the right to receive the personal data you have provided to us in a structured, commonly used and machine-readable format or to request the transmission thereof to another data controller insofar as this is technically feasible.
For reasons that arise from your particular situation, you have the right to object at any time to the processing of personal data relating to you that was collected on the basis of Art. 6 para. 1 lit. e or f GDPR. This also applies to profiling based on those provisions.
The data controller shall no longer process the personal data relating to you unless he can prove compelling legitimate grounds for the processing which override your interests, rights and freedoms or for the establishment, exercise or defence of legal claims.
If personal data relating to you is processed for direct advertising purposes, you have the right to object at any time to the processing of personal data relating to you for such advertising purposes, which includes profiling to the extent that it is related to such advertising.
If you object to the processing for direct advertising purposes, the personal data relating to you shall no longer be processed for such purposes.
In the context of the use of information society services – regardless of directive 2002/58/EG - you may exercise your right to object by automated means using technical specifications.
You have the right to revoke your data protection declaration of consent at any time. By revoking your consent the legality of the of the processing carried out on the basis of the consent until revocation shall not be affected.
Without prejudice to any other administrative or judicial remedy, you have the right to lodge a complaint with a supervisory authority, in particular in the member state of your habitual residence, place of work or place of the alleged infringement if you are of the opinion that the processing of personal data relating to you infringes the GDPR.

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