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At the September 29 meeting of the United Nations Human Rights Council, Paraguay led 29 countries, including the U.S. and the U.K., in presenting a statement that reiterated their “commitment to assist, within the framework of international law, to ensuring that Venezuelans fully enjoyed their civil, political, economic, social, and cultural rights. The disposition of the Holy See to contribute to facilitating dialogue was welcomed. Concern was expressed at reports of repression of the voices of the opposition and excessive force used against peaceful protesters and journalists.” The statement also urged all parties in Venezuela to hold a “timely and effective dialogue,” either directly or via facilitators, “to preserve peace and safety, to ensure the full respect of human rights, due process, the separation of powers and the consolidation of a representative democracy” and to release political prisoners.
Any casual observer from the U.S. and elsewhere should know that Venezuela has been experiencing exceedingly difficult economic and political problems and that most of its people are desperate for food and other essentials. Its government’s attempt to gain international support by calling and hosting a sparsely attended Summit of the Non-Aligned Movement, as discussed in a prior post, was an embarrassing failure.
 U.N. Hum. Rts. Council, Human Rights Council holds general debate on technical assistance and capacity building in the field of human rights (Sept. 29, 2016); Reuters, Venezuela Urged at U.N. to Seek National Dialogue, Free Inmates, N.Y. Times (Sept. 29, 2016).
 Zeid’s global human rights update, U.N. Hum. Rts. Council (Sept. 13, 2016).
Most of the editorial is devoted to discussing the many problems of the Cuban economy.
The 1959 Cuban Revolution’s “[c]ommunism brought an ever more anemic and backward economy, one propped up largely by Moscow. But after the Soviet Union collapsed in 1991, so did Cuba’s economy.” After that collapse, Cuba found Venezuela as a “new benefactor” that provided “heavily subsidized oil” to the island, but now that country’s “worsening economic and political crisis” threatens that subsidy.
Low wages and poor prospects have forced many Cubans to leave the island “in recent years in search of a better life.” This could be accelerated by the elimination of the country’s two-currency system, which the government plans to do.
“The country’s birthrate is declining, while its elderly are living longer.” Couple these facts with the exodus of working-age citizens presents Cuba with an enormous demographic challenge.
I concur in the Times’ call for ending the U.S. designation of Cuba as a “State Sponsor of Terrorism.” It is an unfounded, stupid, absurd action that is only counter-productive as has been argued in posts in 2010, 2011, 2012 (with supplement), 2013 and 2014.
But I do not see ending this policy as the linchpin for the U.S.’ helping the Cuban economy. Instead it is ending the embargo, which the Times on October 11th recommended, but which is not mentioned in the latest editorial.
First, the Cuban economy by itself is obviously unable to afford to purchase the many commodities that presumably will be unloaded from the new super-container ships that will be able to cross the expanded Panama Canal.
Second, for the commodities to go elsewhere will require the unloading of the super-container ships at Mariel and then reloading those commodities in smaller container vessels to go to the major countries on the northern and eastern sides of the South American continent: Venezuela, Brazil, Argentina, Uruguay and Paraguay. How big are those markets?
Third, presumably the major Latin American countries with coasts on the Pacific Ocean like Mexico, El Salvador, Costa Rica, Colombia, Ecuador, Peru and Chile will not be markets for commodities transshipped from Mariel.
Fourth, unless there is U.S.-Cuba reconciliation, the largest potential market for such transshipment, the U.S., presumably would not be importing commodities from the Mariel port.
Similar skepticism about Cuba’s ability to attract foreign investment for other reasons have been voiced by foreign investment experts. The Inter-American Dialogue, which is the leading U.S. center for policy analysis, exchange, and communication on Western Hemisphere affairs, has provided the following four such skeptics.
On November 17th the New York Times published another editorial in its series urging changes in U.S. policies regarding Cuba. Under the title “A Cuban Brain Drain, Courtesy of the U.S.,” the editorial targets the U.S.’s Cuban Medical Professional Parole Program (CMPPP).
In order to understand the editorial, we first must look at the Cuban government’s policy and program of sending Cuban medical personnel to other countries and then at the CMPPP’s response to that Cuban program. Thereafter we will examine the Times’ rationale for its recommendation along with the arguments for the Wall Street Journal’s support of the CMPPP before we voice our conclusions.
Again, according to the same Wall Street Journal article, Cuban doctors often desire such overseas assignments because they provide opportunities to earn significantly more money than at home. “When serving overseas, they get their Cuban salaries [of $25 per month], plus a $50-per-month stipend—both paid to their dependents while they’re abroad. . . . In addition, they themselves receive overseas salaries—from $150 to $1,000 a month, depending on the mission.” Many on-the-side also engage in private fee-for-service medical practice, including abortions. As a result, many of the Cubans are able to save substantial portions of their overseas income, which they often use to purchase items they could not have bought in Cuba like television sets and computers. Other desirable purchases are less expensive U.S. products that they can sell at a profit when they return to Cuba.
As a result of this quid pro quo, Cuba has over 10,000 medical personnel serving in Venezuela. According to the Los Angeles Times just this past September, the working conditions in that country for the Cubans are horrible. Many of the clinics lack air-conditioning and functioning essential medical equipment. The Cubans’ workload is often “crushing.” Common crime is rampant, and the Cubans are often caught in the middle of Venezuela’s civil unrest between followers of the late Hugo Chavez who want the Cubans to be there and more conservative forces that oppose the Cuban presence. As a result, as we will see below in the discussion of CMPPP, many Cuban medical personnel serving in Venezuela have chosen to defect to the U.S. under CMPP.
Under the program “Cuban Medical Professionals” (i.e., health-care providers such as doctors, nurses, paramedics, physical therapists, lab technicians and sports trainers) are eligible if they meet the following criteria: (1) Cuban nationality or citizenship, (2) medical professional currently conscripted to study or work in a third country under the direction of the Government of Cuba, and (3) not otherwise ineligible for entry into the U.S. Spouses and/or minor children are also eligible for such parole.
According to the Times’ editorial and the Wall Street Journal, the program “was the brainchild of Cuban-born Emilio González,” a former U.S. Army colonel, the director of the U.S. Citizen & Immigration Services from 2006 to 2008 and a “staunchly anti-Castro exile.” “He has characterized Cuba’s policy of sending doctors and other health workers abroad as ‘state-sponsored human trafficking.’” The Cuban doctors, he says, work directly for health authorities in other countries and have no say in their assignments.
Given the large numbers of Cuban medical personnel that are sent to Venezuela to help pay for Cuba’s importation of Venezuelan oil, it is not surprising that the largest number of defections of Cubans has been from that country. As of the end of FY 2010, according to the previously mentioned Wall Street Journal article, the total defections by country were the following: Venezuela, 824; Colombia, 291; Bolivia, 60; Dominican Republic, 30; Ecuador, 28; Guatemala, 25; Brazil, 21; Namibia, 21; Peru, 19; and Guyana, 14.
Apparently the largest number of defections from Venezuela continues in light of the previously mentioned difficult working conditions. For FY 2011-2014 there were an additional 1,181 Cuban defections from Venezuela to the U.S. under CMPPP for a grand total of 2,005. In addition, many of the Cubans in that country fear being seen going to the U.S. embassy in Caracas and instead fly to neighboring Colombia and apply there for CMPPP.
Another obvious reason for such defections under CMPP is the desire of the Cubans to earn more income in the U.S. I have met a Cuban neurologist whose wife was a skilled nurse, but who worked as a waitress in a nearby resort in order to earn more income and obtain tips in hard currencies. Like almost all Cubans, they did not earn enough to afford to have their own automobile and told me about Cuban television announcements that people who had an automobile or other vehicle had a special obligation to give rides to anyone in a white coat. Later while on a mission in Central America they defected to the U.S. under CMPPP. At least as I heard their story, they were merely looking for a way to improve their lives financially.
The creation of CMPP was really motivated by a desire by anti-Castro Americans “to strike at the core of the island’s primary diplomatic tool, while embarrassing the Castro regime.” This is hardly a worthy motivation for the U.S.
For a poor country like Cuba, it makes sense to use one of its few economic strengths to bolster its foreign exchange earnings. Is this not an example of the concept of comparative advantage first formulated by classical economists Adam Smith and David Ricardo? The program also helps Cuba garner good will around the world for helping to improve the health of others. There is no legitimate reason for the U.S. to be opposed to such a program.
Her argument centers on the Cuban government’s being paid for these services by other countries like Venezuela or by international organizations like WHO and the government’s paying its medical personnel only some of the Cuban government’s revenues for their services. But this ignores the fact that any corporation or other business entity that sells services, pays the people who actually provide the service less than what is collected by the corporation because there are other cost factors that have to be covered plus a profit.
When the CMPPP was created in 1966, Cuba’s government prohibited its medical personnel from leaving the island, and one of CMPP’s original rationales was providing a legitimate way to provide them with a way to leave Cuba and go elsewhere. Now, however, the Cuban government permits such citizens to leave. This change, in this blogger’s opinion, eliminates the only arguably legitimate basis for CMPPP.
The allegation by some supporters of CMPP that Cuba’s practice of sending medical teams to other countries is a form of human trafficking is absurd, in this blogger’s opinion. The Cuban government has paid for all of the education of its medical personnel, and sending some of them to serve in foreign countries is a way for them to compensate the state for their free education. This Cuban practice is like the U.S. practice during some wars of having a selective service system and drafting some people to serve in our armed forces. Similarly we in the U.S. from time to time have debated having some kind of required national non-military service program for younger citizens without anyone arguing that it would be illegal human trafficking.
This blogger, therefore, supports the Times’ calling for an end to CMPPP.
 Under the overall title of “Cuba: A New Start,” the prior editorials (all of which are simultaneously published in Spanish) have urged overall reconciliation between the two countries, including ending the ending of the U.S. embargo of the island, the U.S. designation of Cuba as a “State Sponsor of Terrorism” and re-establishing normal diplomatic relations; U.S.-Cuba collaboration in combatting Ebola in West Africa; recognizing changing U.S. public opinion on relations with Cuba; U.S.-Cuba exchange of prisoners; and ending USAID covert programs to promote regime change in Cuba.
 Another issue unrelated to CMPPP is whether or not the services provided by the Cuban medical personnel meet the professional standards of the country where they serve. A South American ophthalmologist has told this blogger that she frequently has been called to fix problems created by Cuban doctors on such missions, but this blogger has no information about any comprehensive study of this issue.
 The program’s stated statutory authorization is INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) (permits parole of an alien into the United States for urgent humanitarian reasons or significant public benefit); 8 CFR 212.5(c) & (d) (discretionary authority for granting parole), whereby the U.S. Citizenship and Immigration Services (USCIS) may exercise its discretionary parole authority to permit eligible Cuban nationals to come to the United States.
 This calculation is based upon a November 9, 2014, article in Venezuela’s El Universal newspaper.
 Tier 3 is a U.S.-created category of countries that the U.S. asserts “do not fully comply with [a U.S. statute’s] minimum standards and are not making significant efforts to do so”.
The U.S. Alien Tort Statute (ATS) was originally enacted in 1789 and was virtually unused through 1979. This changed in 1980 when the U.S. Court of Appeals for the Second Circuit in New York City decided a case, Filartiga v. Pena-Irala.
The facts giving rise to the case arose in Paraguay in 1976. Dr. Joel Filartiga was well-known in his country as a physician, painter and opponent of his country’s dictator, General Alfredo Stroessner. In March of that year, Filartiga’s 17-year-old son Joelito was kidnapped, tortured and killed. In the middle of the night of the abduction, Joelito’s sister, Dolly, was forced out of the house to go view the mutilated body of her brother. All of these horrendous acts allegedly were committed by Americo Norberto Pena-Irala, who was a police official in the city where the Filartiga family lived.
In 1978 Dolly Filartiga, who was living in New York City, learned that Pena-Irala also was in the City. With the assistance of the Center for Constitutional Rights she commenced a civil lawsuit for money damages under the ATS in U.S. federal court on behalf of herself and her father against Pena-Irala. The complaint alleged that as a police inspector general in Paraguay he had kidnapped and tortured to death Joelito Filartiga in violation of international law. The district court, however, dismissed the complaint for lack of subject-matter jurisdiction.
On appeal and at the request of the Second Circuit Court of Appeals, the Carter Administration’s Department of Justice advised the court that the universal and fundamental prohibition against torture protected individuals from their own governments, that enforcement of this norm in cases under the ATS would not undermine U.S. foreign policy interests and that failure to entertain such cases could undermine U.S. credibility regarding international human rights and our ability to influence states with poor human rights records.
Later the Second Circuit reversed and remanded the case for further proceedings. The Second Circuit held that “an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.” As a result, the complaint had a proper basis for federal jurisdiction under the ATS.
On remand, the defendant (Pena-Irala) took no further part in the case and thus defaulted. The district court then entered judgment against him and in favor of the father for $5,210,364 and in favor of the sister for $5,175,000.
This case established many firsts. The ATS supports assertions of extraterritorial jurisdiction over events happening in other countries. International human rights norms are justiciable, i.e., they can be adjudicated by U.S. federal courts. The individual as victim and perpetrator is a proper subject of international law. A robust system of accountability for foreign human rights violations under the ATS is consistent with the national interest of the U.S.
Thereafter for the next 25 years Filartiga was followed by other lower federal courts without any guidance from the U.S. Supreme Court, which will be the subject of another post.
 See Post: The Alien Tort Statute, 1789-1979 (Oct. 21, 2011).
 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
 Id.; Center for Constitutional Rights, Filartiga v. Pena-Irala,http:ccrjustice.org/ourcases/pastcases; Wikipedia, Filartiga v. Pena-Irala, http://en.eikipedia.org; William Aceves, The Anatomy of Torture: A Documentary History of Filartiga v. Pena-Irala (Brill; 2007); Richard Alan White, Breaking Silence: the Case That Changed the Face of Human Rights (Georgetown Univ. Press; Washington, D.C. 2004); HBO Docudrama, One Man’s War (1991).
 Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y.1984). Twenty years later, the Filartigas had not collected anything on the judgment, but were still trying to do so. (Boustany, For a Sister, Court Fight Stirs Memories of Paraguay, Wash. Post (Apr. 2, 2004).
 Schaack, Read On! The Definitive Filartiga, IntLawGrrls (June 27, 2008).

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PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARIO MIGUEL Y BERNABE, AND AMALIA DIZON Y REGACHELO, DEFENDANT-APPELLANTS.
Assailed in this appeal via Notice of Appeal is the 9 May 2007 Decision of the Court of Appeals in CA-G.R. CR H.C. No. 02115 which affirmed the 16 January 2006 Decision promulgated by the Regional Trial Court (RTC) of Pasig City, Branch 70, in Criminal Case Nos. 12364-D and 12365-D, finding accused-appellants Mario Miguel y Bernabe (Miguel) and Amalia Dizon y Regachelo (Dizon), guilty beyond reasonable doubt of violating Sections 5 and 11, Article II, of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.
Accused-appellants were arrested and charged following a buy-bust operation conducted by the drug enforcement operatives of the Pasig City Police.
On 25 April 2003, two separate Informations were filed against accused-appellants charging them with violating Republic Act No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.
On or about April 24, 2003 in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and give away to PO3 Amilassan M. Salissa, a police poseur-buyer, one (1) heat-sealed transparent plastic sachet containing sixteen (16) decigrams (0.16 gram) of white crystalline substance, which was found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law.
On or about April 24, 2003, in Pasig City and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and feloniously have in her possession and under her custody and control one (1) heat-sealed transparent plastic sachet containing twenty six (26) decigrams (0.26 gram), of white crystalline substance, which was found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law.
The two cases were raffled to Branch 70 of the RTC of Pasig City. When arraigned, albeit on separate dates, accused-appellants, with the assistance of counsel, both entered `NOT GUILTY' pleas to the charges.
During the pre-trial conference, the defense and the prosecution entered into a stipulation of facts mutually agreeing to dispense with the testimony of Forensic Chemist Inspector Joseph Perdido.
On trial proper, the prosecution presented the following witnesses to adduce evidence against accused-appellants: PO3 Amilassan Salisa (PO3 Salisa), PO1 Janet Sabo (PO1 Sabo) and PO2 Arturo San Andres (PO2 San Andres), all police officers from the Pasig City Police Station.
PO3 AMILASSAN SALISA testified that on April 24, 2003, at about 5:00 o'clock in the afternoon, a confidential informant arrived in their office at the Pasig City Mayor's Special Action Team, City Hall Detachment, Pasig City Police Station, where he was then detailed and reported that one, alias `Moluk,' was engaged in the sale of illegal drugs in Floodway, Purok 4, Barangay Sta. Lucia, Pasig City. Following his receipt of the report, he informed their Chief, Police Senior Inspector Rodrigo Villaruel who immediately caused the formation of a team to conduct a buy-bust operation composed of himself, who was designated as the poseur-buyer, PO1 Janet Sabo, PO2 Arturo San Andres and PO1 Aldrin Mariano. As the poseur-buyer, he was provided with two (2) pieces of One Hundred Peso (P100.00) bills (Exhs. `D' and `E') upon which he placed the markings `AMS' representing his initials (Exhs. `D-1' and `E-1,' respectively) for identification purposes. After a briefing, the team, together with the informant, proceeded to the target area, as abovementioned, arriving there at about 6:00 o'clock in the evening of the aforementioned date. Upon arrival at the target area, and after parking their vehicle, he and the informant alighted first and proceeded by walking to the house of alias `Moluk' while the other team members positioned themselves nearby to observe the projected buy-bust operation. After he and the informant saw Moluk, they approached him and thereafter, the informant introduced his companion (herein witness) as one who wanted to buy shabu. After a brief conversation, he handed to `Moluk' the two (2) PHP 100.00 bills and in turn, the latter handed to him one (1) heat-sealed transparent plastic sachet containing white crystalline substance (Exh. `C-1') upon which, he later placed the markings `AMS-4/24/03' representing his initials and the date of the buy-bust operation. The buy-bust transaction having been consummated, he immediately gave the pre-arranged signal for his teammates to approach and assist him in the operation. PO1 Janet Sabo who was the first to arrive at the scene of the buy-bust operation, apprehended a female person to whom `Moluk' also handed a sachet of suspected shabu earlier. PO1 Sabo allegedly recovered from the woman the plastic sachet (Exh. `C-2') after she opened her hand upon instructions of PO1 Sabo. As to the two (2) One Hundred Peso bills (Exhs. `D' and `E'), he was able to recover the same from `Moluk' right after the buy-bust operation. Both `Moluk' and the female person who turned out to be Mario Miguel y Bernabe (accused in Criminal Case No. 12364-D), and Amalia Dizon y Regachelo (accused in Criminal Case No. 12365-D), respectively, were subsequently brought to the Pasig Police Station for investigation and filing of the appropriate charge/charges. As part of the investigation, both herein witness as well as PO1 Janet Sabo, executed a `Pinagsamang Salaysay' consisting of two (2) pages (Exhs. `F' and `F-1') narrating the circumstances leading to the arrest of the accused.
PO1 JANET SABO corroborated the above testimony of PO3 Salisa. In addition, PO1 Sabo testified that while PO3 Salisa, the poseur-buyer, was talking with a male person, who was with a female companion, at the place of the buy-bust operation, PO1 Sabo saw PO3 Salisa hand something to the male person and in turn, the latter handed something to Salisa. At this point, Salisa scratched his nape which was the pre-arranged signal indicating the completion of the buy-bust transaction. Upon seeing the signal, she, together with the other team members, immediately rushed to where PO3 Salisa was situated to give him assistance. Upon instructions of PO3 Salisa, she immediately held the female companion of the male person and after introducing herself as a police officer told the female person to bring out the sachet of suspected shabu which according to PO3 Salisa the male person had earlier handed the female person. At first, the female person refused, but eventually gave in to the demand and brought a plastic sachet containing suspected shabu (Exh. `C-2'). Thereafter, she placed the markings `JAS-4/24/03' on the plastic sachet representing her initials and the date of the buy-bust operation (Exhibit "C-2-A"), for identification purposes. Later, they brought the male and female persons, who turned out to be the accused Mario Miguel (in Criminal Case No. 12364-D) and accused Amalia Dizon (in Criminal Case No. 12365-D), respectively, first to the Rizal Medical Center for medical examination and then to the Pasig Police Station. In the course of the investigation conducted, she and PO3 Salisa executed a Joint Affidavit entitled `Pinagsamang Salaysay' (Exh. `F' and `F-1').
For his part, PO2 ARTURO SAN ANDRES testified that being a member of the team which was formed to conduct a buy-bust operation against a suspected drug trafficker at Purok 4, East Bank Road, Floodway, Pasig City, on April 24, 2003, he was with the team when they proceeded to the area on said date. Aside from being a back-up which was his assigned role, he was the one who delivered the request for Laboratory examination (Exh. `A') together with the specimen subject matter of these cases, to the PNP Crime Laboratory, St. Francis Street, Mandaluyong City, on 24 April 2003, as shown by the Rubber Stamp (Exh. `A-1') appearing at the bottom left-hand corner of the Request.
The first defense witness, accused AMALIA DIZON testified that on April 24, 2003, at about 2:00 o'clock in the afternoon, while she was then outside her house (691 Purok 4, Floodway, Sta. Lucia, Pasig City) sweeping, a male person approached her asking for the whereabouts of one by the name of `Lyn.' In response, she told the male person that she did not know the person he was looking for. After a while, three (3) male persons in civilian clothes arrived in a vehicle and held the male person who was looking for Lyn. One of the three (3) male persons also held her and when she asked why, she was told to just go with them telling her that they were policemen. Thereafter, she and the male person who was handcuffed were forcibly brought to a vehicle. Once inside the vehicle, one of the three (3) male persons allegedly asked her for PHP5,000.00 in order that she can be released, but she told him that she did not have that amount. While still inside the vehicle, she also told them that she did not know the male person who was taken together with her and when asked by the three (3) male persons, why she was talking with the male person, she told them that at that time, the male person was just looking for somebody. They were brought to the Pasig City Hall where she was detained. After twelve (12) days, she posted bail and was released.
The next defense witness, accused MARIO MIGUEL, testified that on April 23, 2003, at about 3:00 o'clock in the afternoon, while he and his wife were on board a jeepney being then driven by his `compadre,' a lady by the name of `Lyn,' who happened to be riding also (in) the same jeepeney, asked him if he knows somebody who has a vehicle which can be rented. He answered in the affirmative and then asked the lady where she lived because he will see her the following day and the lady said that she lived along Floodway where, according to her, she is well known. The following day, April 24, 2003, at about 3:00 o'clock in the afternoon, he went to the said place where he met one Amalia Dizon and asked her if she knew Lyn, but Amalia told him she did not know Lyn. It was at this point that he was suddenly arrested by persons whom he concluded were policemen because they had guns. He was frisked, but nothing was recovered from him. Thereafter, he was brought to the vehicle used by the policemen and after a while, Amalia Dizon was likewise brought there. He said he did not know Amalia Dizon personally prior to the above incident. Then, he and Amalia were brought to the Pasig Police Station and detained.
The third and last defense witness, NIDA MIGUEL, wife of accused Mario Miguel, testified that on April 23, 2003, at about 3:00 in the afternoon, they were on board a jeepney driven by their compadre on their way home. While they were seated at the back of the driver's seat, her husband and the driver were talking about their lives as drivers. Along the way, a female person hailed the jeepney and seated herself in front of them. Having heard the conversation between her husband and the driver, the female passenger asked them if they knew of someone who has a vehicle that can be rented. Her husband Mario then asked the lady passenger, `Bakit po kayo aarkila ng sasakyan?' and the lady replied, `For purposes of transferring residence.' (T.S.N., August 9, 2005, p.4) Then her husband asked the lady where she was transferring. In reply, the lady told Mario that she will discuss it first with her husband and asked Mario to visit her in her house. Before alighting from the jeepney, the lady told Mario to `Go to my house tomorrow and my name is Lyn.' x x x. Accordingly, the following day, after lunch, her husband went to the place mentioned by the lady passenger to look for her which is in front of the MMDA station. Before her husband left, he told her that he will return immediately after she talked with the lady. She waited until evening that day, but her husband never returned. Later, she learned from her husband's aunt that Mario Miguel had been detained at the Pasig Police Station.
In Criminal Case No. 12364-D filed against accused Mario Miguel y Bernabe for Violation of Section 5, Article II, Republic Act 9165 (Illegal Sale of Shabu), he is hereby sentenced to LIFE IMPRISONMENT and to pay a FINE of Five Hundred Thousand Pesos (PHP 500,000.00).
In Criminal Case No. 12365-D filed against accused Amalia Dizon y Regachelo for Violation of Section 11, Article II, Article II, (sic) Republic Act 9165 (Illegal Possession of Shabu), said accused is hereby sentenced to Twelve (12) Years and One (1) Day to Twenty (20) Years and to pay a FINE of Three Hundred Thousand Pesos (PHP300,000.00).
Considering the penalty imposed upon accused Mario Miguel, his immediate commitment to the National Penitentiary, New Bilibid Prison, Muntinlupa City, is hereby ordered.
Pursuant to Section 20 of Republic Act 9165, the amount of Two Hundred Pesos recovered from accused Mario Miguel representing the proceeds of the illegal sale of the plastic sachet of shabu is hereby ordered forfeited in favor of the government.
Again, pursuant to Section 21 of the same law, representatives from the Philippine Drug Enforcement Agency (PDEA) is (sic) hereby ordered to take charge and have custody over the sachets of shabu object of these cases, for proper disposition.
The trial court accorded full faith and credence to the testimonies of the police officers and found no clear showing of malice, bad faith or ill-will on their part, applying the presumption of regularity in the performance of official duty.
WHEREFORE, the instant appeal is DISMISSED and the assailed decision dated January 16, 2006 of the Regional Trial Court of Pasig City, Branch 70, is AFFIRMED in toto.
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT MARIO MIGUEL GUILTY OF VIOLATING SECTION 5, ARTICLE II OF REPUBLIC ACT 9165 AND ACCUSED-APPELLANT AMALIA DIZON GUILTY OF VIOLATING SECTION 11, ARTICLE II OF REPUBLIC ACT 9165.
Essentially, the defense prays for the acquittal of accused-appellants Miguel and Dizon by impugning the credibility of the prosecution witnesses. It argues that inconsistencies in the statements of the police operatives during the trial cast serious doubt as to the guilt of accused-appellants. Against this, the Solicitor General relies on the regularity in the performance of duty of the police officers who produced the evidence that proved the elements of illegal sale and illegal possession of dangerous drugs, or particularly shabu in this instance.
We find that the guilt of accused-appellants for the crime of illegal sale and illegal possession of shabu has been proven beyond reasonable doubt, and is well-supported by evidence, law and jurisprudence.
It is a well-settled rule that prosecutions involving illegal drugs depend largely on the credibility of the police officers who conducted the buy-bust operation. Hence, the evaluation by the trial court of the credibility of witnesses is entitled to the highest respect and will not be disturbed on appeal unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case. The reason for this is that the trial court is in a better position to decide thereon, having personally heard the witnesses and observed their deportment and manner of testifying during the trial. This is explained by the fact that this Court has access only to the cold and impersonal records of the proceedings, thus, it relies heavily on the rule that the weighing of evidence, particularly when there are conflicts in the testimonies of witnesses, is best left to the trial court, which had the unique opportunity to observe their demeanor, conduct and manner while testifying. We find no reason to deviate from this rule in the case before us.
In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. Material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale had actually taken place, coupled with the presentation in court of evidence of corpus delicti. The term corpus delicti means the actual commission by someone of the particular crime charged.
On the other hand, in illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug. Similarly, in this case, the evidence of the corpus delicti must be established beyond doubt.
In arriving at the appealed decision, both the trial court and the appellate court accorded to the testimony of the police officers the presumption of regularity in the performance of official duty and noted the absence of malice, ill-will, or ill-motive on their part to trump up charges against accused-appellants. As held in People v. Sariol, accused-appellants have not shown that the prosecution witnesses were motivated by any improper motive other than that of accomplishing their mission.
Evidence presented for the prosecution showed that at around 6:00 o'clock in the evening of 24 April 2003, Miguel and Dizon were arrested in a buy-bust operation conducted in Purok 4, Sta. Lucia, Pasig City. In the course of the buy-bust operation, Miguel sold and delivered to PO3 Salisa, the poseur-buyer, one transparent plastic sachet containing white crystalline substance for P200.00. Upon a qualitative examination conducted by Forensic Chemist P/Insp. Joseph Perdido of the Eastern Police District Crime Laboratory in Mandaluyong City, the substance contained in the plastic sachet tested positive for Methamphetamine Hydrochloride, or shabu, a dangerous drug.
Will you please state in brief what was that assignment given to you?
On April 24, at about 5:00 p.m., a confidential informant went to our office and informed us regarding (the) activities of alias Moluk, selling drugs, sir.
Would you know who received that information from the confidential informant?
Me (sic) personally, sir. And after I got the information, I informed our chief, P(olice) Sr. Insp(ector) Villaruel.
When you informed your Chief Villaruel regarding this information given by the confidential informant, what did your office do, if any?
Our Chief conducted a briefing and instruction, sir. And he designated me as a poseur-buyer and he furnished me (with) two (2) One Hundred Peso (P100.00) bills to be used as a buy-bust money, sir.
And after the briefing, what else happened thereafter, (M)r. Witness, if any?
We proceeded to the given area, sir.
Where is that given area?
Purok 4, Brgy. Sta. Lucia, Pasig City, sir.
Did you in fact proceed to said area?
And that was on April 24, 2003, Mr. Witness?
And what time did you arrive at the said area?
On or about 6:00 p.m., sir.
What happened when you arrived in said Purok 4, Brgy. Sta. Lucia, Pasig City?
We parked our service vehicle and I alighted first, together with the informant. And then, we started to locate the residence of alias Moluk, sir.
And after you have located the residence of alias Moluk, what happened next, if any?
The informant pointed to me alias Moluk, sir.
And after that, what happened next?
And what happened next after you approached him?
The informant introduced me to him and then, he asked what do we need, so, we replied, `iiskor,' sir.
How were you introduced by the informant?
I was introduced as one who will score, shabu, sir.
What do you mean by `score,' (M)r. witness?
I will buy shabu, sir.
In other words, you were introduced by the informant to alias Moluk as the one interested in buying shabu?
What was the reaction or what was the response of alias Moluk when the confidential informant informed him that you were interested in buying shabu from him?
He looked at me and then, I handed to him the two (2) One Hundred Peso bills, which he accepted, sir.
And after that, what happened next, (M)r. witness?
He pulled out from his pocket and then, handed to me one (1) heat-sealed transparent plastic sachet containing white crystalline substance, sir.
And after receiving this one (1) plastic sachet of white crystalline substance, what happened next?
I looked at it, sir. And while looking at it, I sent to my companions my pre-arranged signal.
After I have confirmed that it was a suspected shabu, I held his hand and told him of his constitutional rights, sir.
Did you find out later what is the true identity of this alias Moluk?
When we were already in the office, we learned of his identity, sir.
What was his real identity?
After you give (sic) your pre-arranged signal, would you know what did (sic) your companion do after that?
After I have sent my pre-arranged signal, PO1 Sabo suddenly arrived. And when she came, I also pointed to her a female person and I told PO1 Sabo that this woman was also handed a shabu, sir.
Do I understand that alias Moluk gave shabu to this woman?
While we were approaching alias Moluk, we saw him talking with a lady, and I saw that he personally handed to her a plastic sachet containing white crystalline substance, sir.
And as you said earlier, this is the reason why you informed Sabo about the fact that Moluk handed one (1) plastic sachet to this woman?
And when you pointed this woman to Police Officer Sabo, what did you or PO1 Sabo do, if any?
I heard PO1 Sabo instructed the lady to open her hand and there, I saw one (1) plastic sachet containing white crystalline substance, sir.
And when you and PO1 Sabo found out that this woman was in possession of one (1) plastic sachet, what did you do with her, if any?
It was PO1 Sabo who told her that, "You are holding a shabu, so, I am arresting you."
Did you find out later on who is this woman, from whom Police Officer Sabo recovered this plastic sachet?
Yes, sir. When we reached our office, we learned that her true identity is Amy. I cannot recall her last name, sir.
At any rate, Mr. Witness, you stated earlier that you found out later that alias Moluk's real name is Mario Miguel, is that correct?
If ever you will see him again, will you be able to identify him?
Will you please look inside the courtroom and if he is present, will you please step down and approach him, and identify him?
Witness tapped the shoulder of a male person, who when asked, identified himself as Mario Miguel.
Although, Mr. Witness, you cannot recall the surname of this woman, whom you can only remember as one who has the name Amy. If ever you will see her again, will you be able to recognize her?
If ever she is present inside this courtroom, will you please step down from the witness stand and identify her?
Witness tapped the shoulder of a woman who when asked, identified herself as Amy.
May I request the said person be asked the full name, Your Honor?
What happened to the plastic sachet that you bought from Mario Miguel, alias Moluk?
After I have informed him of his constitutional rights, I handcuffed him and then, I put markings on the sachet, sir.
What markings did you place, Mr. Witness?
Exh. A, AMS 4/24/2003, sir.
As you have described, Mr. Witness, I am showing to you one (1) plastic sachet with said markings, Exh. A, AMS 4/24/03. Will you please look at the same and tell this Honorable Court if this is the very same plastic sachet whom you alleged that Mario Miguel alias Moluk, sold to you?
The same plastic sachet, sir.
May I make it of record, Your Honor, that this plastic sachet has been previously marked as Exhibit C-1 for the prosecution.
You also mentioned earlier that Sabo, when she requested the woman, now identified as Amalia Dizon, to open her hand, you and Sabo saw that she is also in possession of one (1) plastic sachet, is that correct?
What did you do with this plastic sachet?
It was PO1 Sabo who marked the other sachet, sir.
The establishment of the crimes of which the accused were charged is not weakened by the alleged inconsistencies cited by accused-appellants. The cited inconsistencies pertain to minor details. Inconsistencies referring to minor details strengthen rather than weaken the witness' credibility for they give the impression of rehearsed testimony. As a matter of fact, discrepancies referring only to minor details and collateral matters - not to the central fact of the crime - do not affect the veracity or detract from the essential culpability of witnesses' declarations as long as these are coherent and intrinsically believable on the whole.
Substantiating the charges against accused-appellants, the collective testimonies of all three prosecution witnesses were corroborated by the physical evidence on record as contained in Chemistry Report No. D-745-03E issued by Forensic Chemist Police Inspector Joseph Perdido. Upon laboratory examination, the white crystalline substance confiscated from accused-appellants were positively identified as methamphetamine hydrochloride.
Finally, the defense of accused-appellants that there was no buy-bust operation deserves scant consideration. Having been caught in flagrante delicto, his identity as seller of the shabu can no longer be doubted. Against the positive testimonies of the prosecution witnesses, appellant's plain denial of the offenses charged, unsubstantiated by any credible and convincing evidence, must simply fail.
Under the law, the illegal sale of shabu carries with it the penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00), regardless of the quantity and purity of the substance involved. On the other hand, the illegal possession of less than five (5) grams of said dangerous drug is penalized with imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three Hundred Thousand Pesos (P300,000.00) to Four Hundred Thousand Pesos (P400,000.00).
Reviewing the penalties imposed by the trial court, as affirmed by the Court of Appeals, we find them to be in order.
WHEREFORE, premises considered, the instant appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02115 dated 9 May 2007 which affirmed the decision of the Regional Trial Court of Pasig City, Branch 70, convicting accused-appellant MARIO MIGUEL y BERNABE of Violation of Section 5, Article II, Republic Act No. 9165 in Criminal Case No. 12364-D, and accused-appellant AMALIA DIZON y REGACHELO for Violation of Section 11, Article II, Republic Act No. 9165 in Criminal Case No. 12365-D is hereby AFFIRMED. No costs.
 Penned by Associate Justice Vicente S.E. Veloso with Associate Justices Juan Q. Enriquez, Jr., and Ricardo R. Rosario concurring. Rollo, pp. 2-22.
 Penned by Judge Pablito M. Rojas. CA rollo, 53-61.
 Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. x x x.
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana x x x.
 Id. at 46 and 59.
 People v. Almendras, 449 Phil. 587, 604 (2003).
 People v. Sy, 438 Phil. 383, 397-398 (2002).
 People v. Villanueva, G.R. No. 172116, 30 October 2006, 506 SCRA 280, 287.
 Valdez v. People, G.R. No. 170180, 23 November 2007, 538 SCRA 611, 629.
 G.R. No. 83809, 22 June 1989, 174 SCRA 237, 243.
 TSN, 5 January 2004, pp. 4-7.
 People v. Barriga, G.R. No. 178545, 29 September 2008, 567 SCRA 65, 78.
 People v. Fernando, G.R. No. 170836, 4 April 2007, 520 SCRA 675, 683-684.

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Hegemann v. M & M Am.
WERNER KARL HEGEMANN, Plaintiff, v. M & M AMERICAN, INC., Defendant.
Plaintiff Werner Karl Hegemann brings this negligence action against Defendant M & M American, Inc. after Plaintiff was injured in an automobile accident in Texas when his vehicle was struck by a tractor trailer owned or leased by Defendant and operated by an individual who is not named as a defendant. Pending before the court is Defendant’s motion to dismiss Plaintiffs claims for lack of personal jurisdiction and improper venue pursuant to Fed. R. Civ. P. 12(b)(2) and (3). (Doc. 3.) On August 30, 2018, the court heard oral argument on the motion. On September 4, 2018, Defendant consented to transfer of venue in this matter to the United States District Court for the Northern District of Texas, Amarillo Division.
Plaintiff is represented by Richard K. Bowen, Esq. Defendant is represented by Shapleigh Smith, Jr., Esq.
The facts are [*2] derived from Plaintiff’s Complaint. Plaintiff Werner Karl Hegemann resides in Putney, Vermont. Defendant M & M American, Inc. is a trucking company with a principal place of business in Mason, Ohio. Plaintiff’s Complaint does not identify Defendant’s state of incorporation. Plaintiff alleges, upon information and belief, that Defendant conducts business throughout the United States, Canada, and Mexico and is licensed with the Department of Transportation to do business in all forty-eight contiguous states. Defendant has a registered agent in the State of Vermont. Asserting that this is an action between citizens of different states and that damages exceed the amount-in-controversy requirement, Plaintiff claims that this court has subject matter jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a).
On or about April 24, 2016, Plaintiff was traveling eastbound in his 1994 GMC Sierra pickup truck on “IH 40 in Oldham County, Texas” when his vehicle was struck by a 2009 White International tractor-trailer truck owned or leased by Defendant and operated by Ratavius D. Buchanan. (Doc. 1 at 2, ¶ 10.) The collision caused Plaintiff’s truck to flip over, resulting in “serious bodily [*3] injuries to its occupants.” Id. at 3, ¶ 13.
A police officer responding to the accident issued Mr. Buchanan a ticket for failing to control the speed of the tractor-trailer. Mr. Buchanan had an unauthorized passenger in the cab of the tractor-trailer and was purportedly distracted by the unauthorized visitor when the accident occurred. Plaintiff was transported from the scene and admitted to Northwest Texas Hospital. Based on these allegations, Plaintiff asserts claims of negligence, respondeat superior, and negligent hire and supervision.
Defendant submitted an affidavit from its President, Brian West, which describes Defendant’s business as a for-hire, transportation company primarily serving the Midwestern and Southern United States. Mr. West avers that Defendant is incorporated and has its principal place of business in Ohio and is not registered with Vermont’s Secretary of State to do business in Vermont, does not have any offices, employees, or bank accounts in Vermont, and does not own or lease any property in the state.
Mr. West further describes Defendant’s obligations under the federal Motor Carrier Act, which provides that a motor carrier must designate an agent upon whom service of process may be made in each state in which the carrier operates. To that end, Defendant has “made arrangements with Process Agent Service Company, Inc. to make a ‘blanket designation.'” Id. at 2, ¶ 9. According to Mr. West, Process Service Company maintains a list on file with the federal Motor Carrier Safety Administration that identifies a process agent for each of the fifty states. “Because [Defendant] made a blanket designation, it has designated all of the people identified on that list as its process agents.” Id.
“In the absence of a federal statute specifically directing otherwise, and subject to limitations imposed by the United States Constitution, [the court] look[s] to the law of the forum state to determine whether a federal district court has personal jurisdiction over a foreign corporation.” [*5] Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016) (citing Fed. R. Civ. P. 4(k)(1)(A)). “On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant.” Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996).
“In evaluating whether the requisite showing has been made, [the court] construe[s] the pleadings and any supporting materials in the light most favorable to the plaintiffs.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013). “The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant’s affidavits.” MacDermid, Inc. v. Deiter, 702 F.3d 725, 727 (2d Cir. 2012). “If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiffs favor, and the plaintiffs prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.” In re Terrorist Attacks on Sept. 13, 200, 714 F.3d 659, 673 (2d Cir. 2013) (internal quotation marks omitted).
[I]n resolving questions of personal jurisdiction in a diversity action, a district court must conduct a two-part inquiry. First, it must determine whether the plaintiff has shown that the defendant is amenable to service of process under the forum state’s laws; and second, it must assess whether the court’s assertion of jurisdiction under these laws comports with the requirements of due [*6] process.
Ehrenfeld v. Mahfouz, 489 F.3d 542, 547 (2d Cir. 2007) (internal quotation marks omitted) (quoting Metro. Life Ins. Co., 84 F.3d at 567).
In Vermont, state courts may exercise personal jurisdiction over a non-resident defendant “to the full extent permitted by the. . . Due Process Clause” of the Fourteenth Amendment. State v. Atl. Richfield Co., 2016 VT 22, ¶ 10, 201 Vt. 342, 349, 142 A.3d 215, 220 (internal quotation marks omitted); see also In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 38 (2d Cir. 2014) (“Vermont’s long-arm statute . . . reflects a clear policy to assert jurisdiction over individual defendants to the full extent permitted by the Due Process Clause.”) (internal citation, footnote, and quotation marks omitted). As a result, “the first part of [the] inquiry—the interpretation of the Vermont law governing service of process—merges with the second part of the jurisdictional test: whether the court’s exercise of personal jurisdiction over the defendant satisfies the requirements of due process.” Metro. Life Ins. Co., 84 F.3d at 567. This “analysis consist[s] of two components: the ‘minimum contacts’ test and the ‘reasonableness’ inquiry.” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002); see also N Aircraft, Inc. v. Reed, 572 A.2d 1382, 1386 (Vt. 1990) (providing that “once the court determines that a nonresident defendant has purposefully established minimum contacts within the forum State, . . . several factors must be considered to ensure that exercising personal jurisdiction over the defendant is reasonable”) (citation and internal quotation marks omitted).
“To determine whether a [*7] defendant has the necessary ‘minimum contacts,’ a distinction is made between ‘specific’ and ‘general’ personal jurisdiction.” In re Terrorist Attacks, 714 F.3d at 673. Specific jurisdiction “exists when a forum exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum[.]” Id. at 673-74 (alteration and internal quotation marks omitted). In contrast, general jurisdiction “is based on the defendant’s general business contacts with the forum and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts.” Id. at 674 (alteration and internal quotation marks omitted). “A court deciding whether it has jurisdiction over an out-of-state defendant under the Due Process Clause must evaluate the ‘quality and nature . . . of the defendant’s contacts with the forum state under a totality of the circumstances test[.]” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007) (quoting Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985)).
B. Whether General Jurisdiction Exists.
Plaintiff asserts that this court has jurisdiction over Defendant “by reason of its business activities” as it provides services throughout the United States, Canada, and Mexico, is licensed with the Department of Transportation in all forty-eight contiguous states, and has a registered [*8] agent in Vermont. (Doc. 1 at 2, ¶ 5.) In his opposition brief, he further claims that Defendant advertises to Vermont companies, its employees use Interstate 89 and Interstate 91 in Vermont, purchase gas in the state, and make use of accommodations while in Vermont.1 Based on the uncontroverted allegations set forth in Mr. West’s declaration, Defendant responds that its limited contacts with Vermont do not permit the exercise of general jurisdiction over it.
A corporation is subject to general jurisdiction in a forum when “‘the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.'” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011) (quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 318 (1945)). “[T]he general jurisdiction inquiry ‘is not whether a foreign corporation’s in-forum contacts can be said to be in some sense continuous and systematic,'” but rather “‘whether that corporation’s affiliations with the State are so continuous and systematic as to render it essentially at home in the forum.'” Brown, 814 F.3d at 627 (quoting Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014)).
“With respect to a corporation, the place of incorporation and principal place of business are paradigm bases. . . for general jurisdiction.” [*9] Daimler, 134 S. Ct. at 760 (alteration and internal quotation marks omitted). A corporation’s principal place of business is “the place where a corporation’s officers direct, control, and coordinate the corporation’s activities.” Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). “In practice, this should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the ‘nerve center.'” One West Bank, NA. v. Melina, 827 F.3d 214, 218 (2d Cir. 2016) (citing Hertz, 559 U.S. at 93) (internal quotation marks omitted).
Neither of the “paradigm bases” of general jurisdiction exist here because there is no dispute that Defendant is incorporated and has its principal place of business in Ohio. Daimler, 134 S. Ct. at 760 (alteration and internal quotation marks omitted). The court therefore may only exercise general jurisdiction over Defendant if this is an “exceptional” case. See Brown, 814 F.3d at 627 (holding that “except in a truly ‘exceptional’ case, a corporate defendant may be treated as ‘essentially at home’ only where it is incorporated or maintains its principal place of business”).
In Brown, the Second Circuit found defendant Lockheed Martin’s contacts with the forum of Connecticut were insufficient under Daimler to permit the exercise of general jurisdiction. Lockheed had a physical presence in Connecticut for over three decades and had obtained and maintained a certificate to do business in that state. It employed between approximately thirty to seventy workers in Connecticut from 2008 through 2012, derived approximately $160 million in revenue for its Connecticut-based activities, and paid Connecticut taxes on that revenue. The Second Circuit explained that “Lockheed’s business in Connecticut, while not insubstantial, constitute[d] [*11] only a very small part of its portfolio[;]” that, “in each of the years from 2008 through 2012, when suit was filed, its Connecticut-based employees represented less than 0.05% of Lockheed’s full workforce[;]” and that the “$160 million in gross revenue that Lockheed derived from its Connecticut operations over five years never exceeded 0.107% of the company’s total annual revenue.” Id. at 629. As a result, the Second Circuit held that “Lockheed’s contacts with Connecticut fall far short of the relationship that Due Process requires, under Daimler and Goodyear, to permit the exercise of general jurisdiction over Lockheed by Connecticut courts.” Id. at 630.
In this case, Defendant’s contacts with Vermont are nominal to nonexistent in comparison to Lockheed’s contacts with Connecticut. Since 2014, Defendant’s deliveries and pick-ups make up 0.07% or less of its total number of deliveries or pick-ups. Defendant is not registered to do business in Vermont. It does not have any offices, employees, or bank accounts in Vermont and does not lease or own any property here. Without any Vermont-based clients, Defendant has not earned any revenue in Vermont. Defendant’s nominal to nonexistent business activities in [*12] the State of Vermont do not subject it to general jurisdiction here.
C. Whether Defendant Consented to General Jurisdiction in Vermont.
Because personal jurisdiction “is a waivable right, there are a variety of legal arrangements by which a litigant may give express or implied consent to the personal jurisdiction of the court.” Burger King, 471 U.S. 462 at 473 n.14 (internal quotation marks omitted). Plaintiff argues that Defendant has consented to general jurisdiction through its appointment of a registered agent in Vermont pursuant to the Motor Carrier Act, 49 U.S.C. § 13304(a). Relying on the Second Circuit’s decision in Brown, Defendant counters that a motor carrier does not consent to general jurisdiction in every state in which it designates a registered agent and that Plaintiff’s broad interpretation of the Motor Carrier Act would violate Due Process.
A motor carrier or broker providing transportation subject to jurisdiction under chapter 135, . . . shall designate an agent in each State in which it operates by name and post office address on whom process issued by a court with subject matter jurisdiction may be served in an action [*13] brought against that carrier or broker.
49 U.S.C. § 13304(a). The phrase “jurisdiction under chapter 135” “generally refers to the jurisdiction of the Secretary of the Department of Transportation and the Surface Transportation Board . . . over the interstate transportation by motor carrier and the procurement of that transportation.” W. Express, Inc. v. Villanueva, 2017 WL 4785831, at *5 n.4 (M.D. Tenn. Oct. 24, 2017) (citing 49 U.S.C. §§ 13102(1), (2)) (internal quotation marks omitted).
If mere registration and the accompanying appointment of an in-state agent—without an express consent to general jurisdiction—nonetheless sufficed to confer general jurisdiction by implicit consent, every corporation would be subject to general jurisdiction in every state in which it registered, and Daimler’s ruling would be robbed of meaning by a back door thief.
Consistent with Brown, the majority of Circuit Courts of Appeals have concluded that appointing a registered agent is insufficient to establish general jurisdiction over a corporation.3 Although Brown interpreted a state statute, its reasoning applies to the federal Motor Carrier Act as well because it does not “expressly provide” that corporations who register to transact business in a state and appoint a registered agent thereby consent to general jurisdiction.
In contrast, the Eighth Circuit in Ocepek v. Corp. Transp., Inc., 950 F.2d 556 (8th Cir. 1991) squarely considered the Motor Carrier Act’s designation of [*15] an agent provision and held that the defendant consented to personal jurisdiction. The Ocepek court looked to Congress’s intended purpose in passing the Motor Carrier Act, noting that “[o]ne of the goals of the [statute] was to protect citizens of the United States from injury resulting from the actions of interstate carriers.” Id. at 559. Consistent with that purpose, the Eighth Circuit interpreted the statute and corresponding regulations, which “say nothing about limited designations,” and found that “this silence reflects that no such limitations were contemplated by the drafters.” Id. at 560.
Ocepeck is non-binding precedent that pre-dates and is arguably inconsistent with Daimler. More critically, its reasoning is inconsistent with Brown, which concluded that a registration statute’s silence did not “expressly provide” for the exercise of general jurisdiction. Brown, 814 F.3d at 634; see also Davis v. Quality Carriers, Inc., 2009 WL 1291985 at *5 (D.N.J. May 7, 2009) (“Nothing in the language of [the Motor Carrier Act] or the applicable [Department of Transportation] regulations even suggests that a motor carrier or other covered entity submits to the jurisdiction of each state in which it designates an agent for service of process.”).
The only case cited by Plaintiff that post-dates Daimler is Grubb v. Day to Day Logistics, Inc., 2015 WL 4068742 (S.D. Ohio July 2, 2015). There, [*16] the court found that the defendant had consented to be sued for an out-of-state automobile accident because it designated an agent pursuant to the Motor Carrier Act. In doing so, it relied on Sixth Circuit precedent, Shapiro v. Southeastern Greyhound Lines, 155 F.2d 135 (6th Cir. 1946), which does not address issues of personal jurisdiction.4 The court found that Shapiro was “unaffected by Daimler[,]” which generally limits general jurisdiction over a corporation to its state of incorporation and principal place of business, but did not address when a corporation consents to personal jurisdiction. Grubb, 2015 WL 4068742, at *4. This court, by contrast, is bound by the Second Circuit’s decision in Brown, which held that the “mere registration and the accompanying appointment of an in-state agent—without an express consent to general jurisdiction” does not constitute consent to personal jurisdiction. Brown, 814 F.3d at 640.
Because Defendant’s designation of a registered agent pursuant to the Motor Carrier Act does not constitute consent to be sued in Vermont, Plaintiff has not met his burden to demonstrate that general jurisdiction exists.
D. Whether Specific Jurisdiction Exists.
Defendant further argues that specific jurisdiction is lacking because none of Plaintiffs claims arise out of any [*17] of its contacts with Vermont but rather relate to an automobile accident that occurred in Texas. Plaintiff responds that Defendant has sufficient contacts with the forum to satisfy Vermont’s long-arm statute and that his claims have a relationship to Defendant’s contacts in Vermont.
“[A] State may authorize its courts to exercise [specific] personal jurisdiction over an out-of-state defendant if the defendant has ‘certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Goodyear, 564 U.S. at 923 (alteration in original) (quoting Intl Shoe, 326 U.S. at 316). “For the purpose of establishing specific personal jurisdiction, the necessary fair warning requirement is satisfied if the defendant has purposefully directed his activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities.” In re Terrorist Attacks, 714 F.3d at 674 (internal quotation marks omitted); see also Bristol-Myers Squibb Co. v. Super. Ct. of California, San Francisco Cty., 137 S. Ct. 1773, 1780 (2017) (stating that “there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.”) (internal quotation [*18] marks and alteration omitted).
“The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant focuses on the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1121(2014) (internal quotation marks omitted). In order for the court to exercise “case-linked” or specific jurisdiction, “the suit must arise out of or relate to the defendant’s contacts with the forum.” Bristol-Myers Squibb, 137 S. Ct. at 1780 (emphasis, internal quotation marks, and alterations omitted). There must be “‘some act by which the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'” Goodyear, 564 U.S. at 924 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The “‘minimum contacts’ analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.” Walden, 134 S. Ct. at 1122. “When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.” Bristol-Myers Squibb, 137 S. Ct. at 1781.
Here, none of the claims raised in Plaintiff’s Complaint arise out of Defendant’s contacts with Vermont. Instead, they arise out of a motor vehicle accident that took place in Texas between a Vermont driver and [*19] Mr. Buchanan who is from another state. The accident was investigated by Texas law enforcement and Plaintiff was treated and released from a Texas hospital. Plaintiff has thus neither established that Defendant has sufficient minimum contacts for specific jurisdiction nor established that his suit is related to those contacts. As a result, no further analysis of specific jurisdiction is warranted. See Metro. Life Ins. Co., 84 F.3d at 568 (“A reviewing court must first examine the defendant’s contacts with the forum. If the same do not exist in sufficient abundance, that is, if the constitutionally necessary first-tier minimum is lacking, the inquiry ends.”) (internal quotation marks omitted).
E. Whether the Court Should Permit Jurisdictional Discovery.
Without expressly requesting jurisdictional discovery, Plaintiff notes that this court can exercise its discretion to permit jurisdictional discovery and conduct an evidentiary hearing. “A district court is ‘typically within its discretion’ to order jurisdictional discovery where [*20] a plaintiff has ‘made out a prima facie case for jurisdiction.'” Funk v. Belneftekhim, 861 F.3d 354, 366 (2d Cir. 2017) (quoting Frontera Res. Azer. Corp. v. State Oil Co. of the Azer. Republic, 582 F.3d 393, 401 (2d Cir. 2009)). In this case, that threshold requirement has not been satisfied. In addition, Plaintiff has not identified discovery that may enable him to satisfy the requirements for personal jurisdiction over Defendant.
F. Whether the Court Should Transfer this Case.
28 U.S.C. § 1404 states that: “[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 or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). “Section 1404(a) is merely a codification of the doctrine offorum non conveniens for the subset of cases in which the transferee forum is within the federal court system; in such cases, Congress has replaced the traditional remedy of outright dismissal with transfer.” Atl. Marine Constr. Co., Inc. v. US. Dist. Ct. for the W. Dist. of Texas, 571 U.S. 49, 60 (2013). It “reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (footnote omitted).
As the Supreme Court has observed, § 1404 “was designed as a federal housekeeping measure, allowing easy change of venue within a unified federal [*21] system.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981) (internal quotation marks omitted). Therefore, “[district courts [are] given more discretion to transfer under § 1404(a) than they [have] to dismiss on grounds offorum non conveniensH” id. at 253, and “motions for transfer. . . are determined upon notions of convenience and fairness on a case-by case basis.” Cuyahoga Equip. Corp. v. United States (In re: Cuyahoga Equip. Corp.), 980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).
“[A] district court considering a § 1404(a) motion. . . must evaluate both the convenience of the parties and various public-interest considerations.” Ad. Marine, 571 U.S. at 62.
Factors relating to the parties’ private interests include relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Public-interest factors may include the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; and the interest in having the trial of a diversity case in a forum that is at home with the law. The [c]ourt must also give some weight to the plaintiff[‘s] choice of forum.
Id. at 62 n.6 (internal [*22] citations, alterations, and quotation marks omitted).6 It is the moving party’s burden to prove by clear and convincing evidence that a transfer is proper under § 1404(a). See N.Y. Marine & Gen. Ins. Co. v. Lafarge N.A., Inc., 599 F.3d 102, 113-14 (2d Cir. 2010).
Plaintiff has requested that rather than outright dismissal, the court transfer the case so that Plaintiff will not face a statute of limitations issue if he must file his suit elsewhere. Defendant consents to transfer. As the witnesses to the accident, the location of the scene, some of the treating physicians, the availability of compulsory process, and the likely application of Texas law all favor transfer, the court hereby GRANTS Plaintiff s request.
For the foregoing reasons, the court TRANSFERS this matter to the United States District Court for the Northern District of Texas, Amarillo Division and upon transfer, will dismiss this case without prejudice pursuant to Defendant’s motion (Doc. 3). SO ORDERED.
Dated at Burlington, in the District of Vermont, this 20th day of September, 2018.
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If you are building a car, truck, bike or considering modifying one you should check out the state law requirements. You can see them all by going to www.vsp.state.va.us/Safety_AntiqueVehicle.shtm or click on the links below to the Code of Virginia.
§ 46.2-1014.1. Supplemental high mount stop light.
§ 46.2-1038. When turn signals required; exceptions.
§ 46.2-1039. Requirements of turn signals; regulations.
§ 46.2-1048. Pollution control systems or devices.
§ 46.2-1055.1. Windshield defroster or defogger.
§ 46.2-1056. When safety glass required.
§ 46.2-1069. Brakes on motorcycles.
§ 46.2-1092. Safety lap belts or a combination of lap belts and shoulder harnesses to be installed in certain motor vehicles.
§ 46.2-1049 Exhaust system in good working order.