FindACase | Downing v. Cessna Aircraft Co.
Downing v. Cessna Aircraft Co.
CESSNA AIRCRAFT COMPANY a subsidiary of Textron Aviation, Inc., and JOHN DOES 1-20, Defendants.
This matter comes before the court upon plaintiff Sandra Lynne Downing's Motion to Remand (Doc. 8). This case was initially filed in the District Court of Johnson County, Kansas. It was removed to federal court on August 14, 2017, based on diversity jurisdiction by defendant Lycoming. (Doc. 1.) On August 16, 2017, plaintiff filed an Amended Complaint (Doc. 5) alleging negligent wrongful death and products liability claims, all relying on Kansas state law, but naming only defendant Cessna Aircraft Company (“Cessna”) and the John Doe defendants. Plaintiff filed her motion to remand on September 13, 2017, arguing that the court does not have subject-matter jurisdiction based on the forum-defendant rule, because defendant Cessna is Kansas company. For the reasons explained below, plaintiff's motion to remand is granted.
28 U.S.C. 1332(a) provides that federal district courts have original jurisdiction in civil matters where (1) the amount in controversy exceeds $75, 000 and (2) there is complete diversity of citizenship. The parties do not dispute that these requirements are met.
Instead, plaintiff relies on 28 U.S.C. § 1441(b)(2)-the forum-defendant rule-as authority to remand this case. The forum-defendant rule adds the separate requirement that for proper removal of a civil action to federal court, none of the parties in interest properly joined and served as defendants can be a citizen of the state in which the action is brought-here, Kansas. 28 U.S.C. § 1441(b)(2) (explaining that an otherwise removable case “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought”). Defendant Cessna is a subsidiary of Textron Aviation, which is a citizen of Kansas. Therefore, this case should be remanded pursuant to the forum-defendant rule.
None of defendant's three arguments persuade the court otherwise. First, defendant correctly suggests that the forum-defendant rule is a procedural barrier to subject-matter jurisdiction that may be waived if a plaintiff proceeds in federal court without raising it. Herrera v. Las Cruces Pub. Schs., 695 F. App'x 361, 366 (10th Cir. 2017). Defendant argues that plaintiff waived her right to remand this case because she filed an amended complaint in federal court.
The purpose of the forum defendant rule also supports treating it as a non-jurisdictional requirement. Removal based on diversity jurisdiction is intended to protect out-of-state defendants from possible prejudices in state court. . . . The need for such protection is absent, however, in cases where the defendant is a citizen of the state in which the case is brought. Within this contextual framework, the forum defendant rule allows the plaintiff to regain some control over forum selection by requesting that the case be remanded to state court. A procedural characterization of this rule honors this purpose because the plaintiff can either move to remand the case to state court within the 30-day time limit, or allow the case to remain in federal court by doing nothing. Either way, the plaintiff exercises control over the forum.
Id. at 940. Here, plaintiff moved to remand within 30 days. The court does not find that filing the amended complaint waived plaintiff's right to control the forum for adjudication of her claims, especially when the only basis for removal in the first instance was diversity jurisdiction.
Second, defendant argues that Cessna was not a party in interest properly joined and served at the time this case was removed and that because diversity jurisdiction is determined at the time of removal, the forum-defendant rule should not apply. This court has previously held that this interpretation of the forum-defendant rule is contrary to its purpose. The joined and served language is included to prevent plaintiffs from foreclosing a defendant's ability to remove an action by naming a local defendant whom the plaintiff has no intention of serving or proceeding against. The rule does not authorize the court to ignore the citizenship of unserved defendants in determining diversity jurisdiction. See Gift Card Impression v. Grp. Servs. Ltd., No. 12-2766-CM, 2013 WL 568211, at *1 (D. Kan. Feb. 13, 2013) (citing Boulter v. Citi Residential Lending, No. 10-350-JHP, 2011 WL 128789, at *3 (E.D. Okla. Jan. 14, 2011)).
Third, defendant argues that plaintiff's motion to remand should be denied because she did not sufficiently develop her legal argument or reply. There is no requirement that a reply brief be filed and plaintiff provided the court with sufficient argument and authority to decide in her motion in her favor. Plaintiff brings all state law claims. The forum-defendant rule applies to this case. The court finds that plaintiff's motion to remand should be granted and this case should be remanded to the District Court in Johnson County, Kansas.


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On April 19, 2019, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion reversing a decision of the U.S. District Court for the District of Oregon. Versatop Support Sys. v. Georgia Expo, Inc., —F.3d—, (Fed. Cir. April 19, 2019). The CAFC ruled that the district court had incorrectly found no infringement based on the “use in commerce” requirement of the Lanham Act.
On April 1, 2019, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion affirming a dismissal under Federal Rule of Civil Procedure 12(b)(6) by the United States District Court for the Eastern District of Virginia. Cleveland Clinic Foundation et al. v. True Health Diagnostics, —F. App’x—, (Fed. Cir. Apr. 1, 2019). The CAFC ruled that the district court had correctly decided that the asserted claims are invalid as patent ineligible abstract ideas under 35 U.S.C. § 101.
On Monday, March 4, 2019, the United States Supreme Court issued an opinion affirming a dismissal of the plaintiff’s copyright claim. Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ____ (2019). The Supreme Court held that a copyright plaintiff may not commence a lawsuit until after the Register of Copyrights officially registers the copyright.
On February 14, 2019, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion reversing and remanding a decision by the United States District Court for the District of Delaware granting summary judgment of invalidity for lack of written description. CenTrak, Inc. v. Sonitor Techs., Inc., —F.3d—, (Fed. Cir. Feb. 14, 2019). The CAFC ruled that there were genuine issues of material fact as to whether it was necessary to disclose in the patent specification particular implementation details to satisfy the written description requirement.
On Wednesday, January 30, 2019, Judge Kiyo A. Matsumoto of the United States District Court for the Eastern District of New York denied the request of defendant Presidio Components, Inc., (the “Company”) to supplement its invalidity contentions. American Technical Ceramics Corp. et al. v. Presidio Components, Inc., Case No. 14-cv-6544 (E.D.N.Y. Jan. 30, 2019). Judge Matsumoto determined that the Company was statutorily estopped from raising invalidity grounds that it did not include in its petition for inter partes review (“IPR”) to the U.S. Patent and Trademark Office (“USPTO”), and, thus barred the Company from supplementing its invalidity contentions in the subsequent district court proceeding.
On Thursday, January 24, 2019, the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) issued a decision exercising its statutorily authorized discretion to deny institution of a petition for inter partes review (IPR). Deeper, UAB v. Vexilar, Inc., IPR Case No. 2018-01310 (PTAB Jan. 24, 2019). The PTAB determined that instituting IPR would be an inefficient use of the PTAB’s finite resources because the petitioner had shown a reasonable likelihood of prevailing on its invalidity challenges with respect to only two of the twenty-three challenged claims as to one of the four grounds.
On Monday, January 14, 2019, the Court of Appeals for the Federal Circuit (“CAFC”) issued an opinion vacating and remanding a decision by the Trademark Trial and Appeal Board (“TTAB”) refusing to register a design mark based on likelihood of confusion. In re Guild Mortgage Co., —F.3—, (Fed. Cir. January 14, 2019). The CAFC ruled that the TTAB failed to consider the relevant evidence and argument directed to DuPont factor 8.
On Thursday, December 20, 2018, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion affirming a dismissal under Federal Rule of Civil Procedure 12(b)(6) by the U.S. District Court for the Western District of Washington. Glasswall Solutions Ltd. v. Clearswift Ltd., —F.App’x—, (Fed. Cir. Dec. 20, 2018). The CAFC ruled that the district court had correctly decided that the asserted claims are invalid as patent ineligible abstract ideas under 35 U.S.C. § 101.
On October 30, 2018, the Court of Appeals for the Federal Circuit issued an opinion vacating an earlier decision from the International Trade Commission (“ITC”) regarding a shoe company’s (the “Company”) trademark in its All Star shoes trade dress. Converse, Inc. v. Int’l Trade Comm’n, —F.3d—, (Fed. Cir. October 20, 2018). The Court held that the presumption of secondary meaning that applies to registered marks does not apply before the registration. The Court also clarified the considerations to be assessed in determining whether a mark has acquired secondary meaning.
On Tuesday, October 2, 2018, the International Trade Commission (ITC) issued the public version of an initial determination issued by Administrative Law Judge (ALJ) Clark S. Cheney. In re Certain Magnetic Tape Cartridges and Components Thereof, Investigation No. 337-TA-1058,—Fed. Reg.— (October 2, 2018). The ALJ applied prior art to find asserted patent claims invalid, even though the respondents may have been estopped by statute from relying on that prior art.
On October 10, 2018, the United States Patent and Trademark Office (“USPTO”) announced that it had published its final rule changing the America Invents Act (“AIA”) trial proceeding claim-construction standard to the same standard used in district court and International Trade Commission (“ITC”) proceedings. (83 FR 51340.) As we previously reported, see Shearman & Sterling LLP, USPTO Issues Proposed Rulemaking to Adopt District-Court Claim Construction Standard for AIA Trial Proceedings, the USPTO in May 2018 proposed this change as part of its ongoing efforts to “shape and improve” AIA trial proceedings.
On October 1, 2018, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion affirming a decision by the Patent Trial and Appeal Board (PTAB) cancelling a patent in inter partes reexamination. Natural Alternatives Int’l, Inc. v. Iancu, —F.3d— (Fed. Cir. Oct. 1, 2018). The PTAB and the CAFC both rejected the patent-owner’s argument that the patent in question was entitled to claim priority to one of the owner’s earlier patent applications.
On September 12, 2018, the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office issued a decision exercising its statutorily authorized discretion to deny institution of a petition for inter partes review (IPR). NHK Spring Co., Ltd. v. Intri-Plex Techs., Inc., IPR Case No. 2018-00752 (PTAB Sept. 12, 2018). In doing so, the PTAB ruled that the IPR petition’s reliance on substantially the same arguments that the patent owner overcame during original prosecution justified a discretionary denial in this instance, as did the advanced stage of a parallel litigation involving the same parties.
On September 4, 2018, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion affirming a judgment of the United States District Court for the District of Delaware finding a patent claim invalid for indefiniteness. Intellectual Ventures I LLC v. T-Mobile USA, Inc. et al., —F.3d—(Fed. Cir. September 4, 2018). The CAFC ruled that the claim was invalid because it included a limitation that was entirely subjective and user-defined.
On August 20, 2018, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion reversing a decision of the Patent Trial and Appeal Board (PTAB) in which the PTAB had rejected a design patent application for indefiniteness. In re Ron Maatita, —F.3d—, (Fed. Cir. Aug. 20, 2018). The CAFC ruled that the PTAB had wrongly applied the indefiniteness standard in the context of a design patent claiming the design of the sole of an athletic shoe.
On July 24, 2018, the Court of Appeals for the Federal Circuit (“CAFC”) unsealed an opinion vacating a final written decision in two inter partes reviews (“IPRs”). Applications in Internet Time, LLC v. RPX Corp., —F.3d— (Fed. Cir. July 9, 2018). The CAFC remanded the IPRs to the Patent Trial and Appeal Board (“PTAB”) for further consideration of whether an RPX client was a real party-in-interest (“RPI”) to the IPRs, in which RPX had claimed to be the sole RPI.
On July 10, 2018, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion in an appeal from a District Court decision in a patent-infringement case, affirming the District Court’s finding of patent validity, but vacating the District Court’s award of enhanced damages of two-and-a-half times the original damages amount. Polara Eng. Inc. v. Campbell Co., Appeal Nos. 2017-1974 and 2017-2033 (Fed. Cir. July 10, 2018). The CAFC found that the District Court wrongly assessed the closeness of the case, and remanded the enhanced-damages issue to the District Court for further consideration.
On June 22, 2018, the United States Supreme Court reversed the Court of Appeals for the Federal Circuit (CAFC) on the issue of whether damages suffered overseas can be recovered as remedy for infringement under the U.S. patent laws. WesternGeco LLC v. ION Geophysical Corp., 585 U.S. ____, case no. 16-1011. The Supreme Court ruled that such damages can be recoverable.
On May 19, 2018, the United States District Court for the Eastern District of Wisconsin denied a patent owner’s request for reconsideration of a decision that the patent owner had not complied with the marking statute, and that therefore its damages in the pending infringement case would be limited, pursuant to that statute. Acantha LLC v. Depuy Orthopaedics, Inc., et al., Case No. 15-C-1257 (E.D. Wis. May 19, 2018). The Court rejected the patent owner’s argument that placing a patent notice in its surgical guide constituted sufficient marking.
As part of its ongoing efforts to “shape and improve” post-grant trial proceedings under the America Invents Act (AIA), the United States Patent and Trademark Office (USPTO) announced on May 8, 2018, a Notice of Proposed Rulemaking to change the AIA trial proceeding claim-construction standard to the same standard used in district court and International Trade Commission (ITC) proceedings. 83 FR 21221.
On Tuesday, May 1, 2018, the United States Court of Appeals for the Federal Circuit issued a decision affirming liability of plaintiff’s trade secret misappropriation claim, but vacating the monetary damages award. Texas Advanced Optoelectronic Solutions, Inc. v. Renesas Electronics America, Inc., f/k/a Intersil Corp., Appeal Nos. 2016-2121, 2016-2208, and 2016-2235. The Court held that plaintiff Texas Advanced Optoelectronic Solutions (“TAOS”) did not have a jury trial right on its claim for disgorgement of defendant Intersil’s profits, since disgorgement is equitable in nature and was not historically heard by law courts, at least as it concerned intellectual property claims.


The term “eligible veteran” means any veteran who is not eligible for educational assistance under chapter 34 of this title and who (i) entered military service on or after January 1, 1977, and before July 1, 1985, served on active duty for a period of more than 180 days commencing on or after January 1, 1977, and was discharged or released therefrom under conditions other than dishonorable, or (ii) entered military service on or after January 1, 1977, and before July 1, 1985, and was discharged or released from active duty after January 1, 1977, for a service-connected disability.
The requirement of discharge or release, prescribed in subparagraph (A), shall be waived in the case of any participant who has completed his or her first obligated period of active duty (which began after December 31, 1976) or 6 years of active duty (which began after December 31, 1976), whichever period is less.
For the purposes of subparagraphs (A) and (B), the term “active duty” does not include any period during which an individual (i) was assigned full time by the Armed Forces to a civilian institution for a course of education which was substantially the same as established courses offered to civilians, (ii) served as a cadet or midshipman at one of the service academies, or (iii) served under the provisions of section 511(d)  of title 10 pursuant to an enlistment in the Army National Guard or the Air National Guard, or as a Reserve for service in the Army Reserve, Navy Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve.
The requirement of ineligibility for educational assistance under chapter 34 of this title, prescribed in subparagraph (A), shall be waived in the case of a veteran described in division (ii) of this subparagraph who elects to receive benefits under this chapter instead of assistance under such chapter 34. A veteran who makes such an election shall be ineligible for assistance under such chapter. Such an election is irrevocable.
A veteran referred to in division (i) of this subparagraph is a veteran who before January 1, 1977, performed military service described in subparagraph (C)(iii), is entitled under section 3452(a)(3)(C) of this title to have such service considered to be “active duty” for the purposes of chapter 34 of this title, and is eligible for assistance under such chapter only by reason of having such service considered to be active duty.
includes (i) a full-time program of apprenticeship or other on-job training approved as provided in clause (1) or (2), as appropriate, of section 3687(a) of this title, and (ii) in the case of an individual who is not serving on active duty, a cooperative program (as defined in section 3482(a)(2) of this title).
The term “participant” is a person who is participating in the educational benefits program established under this chapter.
The term “educational institution” has the meaning given such term in section 3452(c) of this title.
The term “training establishment” has the meaning given such term in section 3452(e) of this title.
Section 511 of title 10, referred to in par. (1)(C)(iii), was renumbered section 12103 of Title 10, Armed Forces, by Pub. L. 103–337, div. A, title XVI, § 1662(b)(2), Oct. 5, 1994, 108 Stat. 2989.
Prior sections 3202 to 3205 were renumbered sections 5502 to 5505 of this title, respectively, and section 5505 was subsequently repealed by Pub. L. 103–446, title XII, § 1201(g)(4)(A), Nov. 2, 1994, 108 Stat. 4687.
2006—Par. (1)(C)(iii). Pub. L. 109–163 substituted “Navy Reserve” for “Naval Reserve”.
1991—Pub. L. 102–83, § 5(a), renumbered section 1602 of this title as this section.
Par. (1)(A). Pub. L. 102–54 inserted comma after last reference to “1977”.
Par. (1)(D)(ii). Pub. L. 102–83, § 5(c)(1), substituted “3452(a)(3)(C)” for “1652(a)(3)(C)”.
Par. (2). Pub. L. 102–83, § 5(c)(1), substituted “3452(b)” for “1652(b)” in subpar. (A) and “3687(a)” for “1787(a)” and “3482(a)(2)” for “1682(a)(2)” in subpar. (B).
Pars. (4), (5). Pub. L. 102–83, § 5(c)(1), substituted “3452(c)” for “1652(c)” in par. (4) and “3452(e)” for “1652(e)” in par. (5).
1988—Par. (2)(B). Pub. L. 100–689 inserted designation “(i)” after “includes” and added cl. (ii).
1986—Par. (1)(A). Pub. L. 99–576, § 309(a)(2), inserted “and before July 1, 1985,” in two places and substituted “commencing on or after January 1, 1977” for “commencing on or after such date” and “released from active duty after January 1, 1977” for “released from active duty after such date”.
Pars. (4), (5). Pub. L. 99–576, § 310(a)(2), added pars. (4) and (5).
1984—Par. (1)(D). Pub. L. 98–223 added subpar. (D).
1980—Par. (1)(A). Pub. L. 96–466 inserted “who is not eligible for educational assistance under chapter 34 of this title and” after “any veteran” and struck out “initially” before “entered military service” in two places.
Amendment by Pub. L. 100–689 effective Jan. 1, 1989, see section 108(c) of Pub. L. 100–689, set out as a note under section 3002 of this title.
Section effective Jan. 1, 1977, see section 406 of Pub. L. 94–502, set out as a note under section 3201 of this title.
For provisions for continued eligibility for enrollment in the program established by this chapter until Apr. 1, 1987, of individuals on active duty in the Armed Forces who were eligible therefor on June 30, 1985, and requiring notice of such continued eligibility to affected individuals, see section 309(c), (d) of Pub. L. 99–576, set out as a note under section 3201 of this title.


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Most commercially available detonation nanodiamonds (DNDs) require further processing to qualify for use in biomedical applications, as they often contain many impurities and exhibit poor dispersibility in aqueous media. In this work, DNDs are modified to improve purity and impart a high colloidal stability to the particles. The dispersive and adsorption properties of modified DNDs are evaluated in terms of the suitability of DNDs as carriers for non-steroidal anti-inflammatory drugs (NSAIDs) in transdermal delivery. The study of adsorption on strongly positively and strongly negatively charged DNDs showed their high loading capacity for NSAIDs, and a pronounced relationship between the drugs and the particles’ charges. Experiments on long-term desorption carried out with DND/NSAID complexes indicate that the nanoparticles exert a sustained effect on the drug release process.
Detonation nanodiamonds (DND) are receiving much attention due to its remarkable mechanical, electrical and thermal properties, and large specific area. Nanodiamonds find wide applications in composite coatings for metals, diagnostic probes, micro-electro-mechanical devices, additives to polymers and lubricants etc [1-7]. The modifiable surface, high adsorption capacity, non-toxicity and small size of nanodiamond particles suggest their great potential in the biomedical field, particularly in drug delivery. The capacity of DND in drug delivery has been demonstrated many times for a variety of compounds employing different loading mechanisms [1-6]. The most important advantages of DND as a drug delivery vehicle stem from a strong physical adsorption controlled by the functional groups on well-developed surface area that is well suited for conjugating various biochemical substances. A high loading capacity means a high concentration of payload to be delivered using lower concentrations of DND. However, to fully use the potential of DND in drug delivery, attention must be paid to its purity, surface chemistry, colloidal stability and other parameters that may influence drug adsorption and desorption.
To be used in biomedical applications, most of commercial DND require further processing as they contain a high amount of impurities, are highly polydispersed and often exhibit micron-sized clusters unbreakable by the ultrasonic treatment [8-9]. Upon drying, DND particles aggregate and lose colloidal stability, which makes impossible their subsequent re-suspension or fractionating. There are several ways to overcome the aggregation and improve sedimentation stability of DND including the use of surfactants, removing impurities with ion exchange resins, oxidation at elevated temperatures, and ultrasonic irradiation [1, 8, 10-12]. However, most of them involve high power consumption and the use of costly equipment and reagents.
In this study we propose a simple and cost effective method for modifying commercially available DND with aims to provide properties suitable for drug delivery, particularly for the use of DND as a carrier for non-steroidal anti-inflammatory drugs. The dispersive and adsorption properties of modified DND were evaluated on purpose to be exploited in controlled drug release for prolonged times.
Non-steroidal anti-inflammatory drugs (NSAID) are a group of compounds known to prevent formation of prostaglandins and thromboxanes from arachidonic acid through the inhibition of the enzyme cyclo-oxygenase . The drugs of this group are widely used for acute and chronic diseases accompanied by pain and inflammation, with their oral, intramuscular or intravenous administration. However, there are a number of undesirable side effects associated, primarily with the digestive tract and kidneys. An alternative way to deliver NSAID is to use them in medical patches intended for external use with controlled and sustained release of the drug . Diclofenac and Ketorolac, which are widely used in surgery, traumatology, neurology, gynecology, urology, oncology and other medical fields, were chosen for the purposes of this research. Both drugs are hydrophobic, but they are soluble in water in salt form.
Detonation nanodiamond materials from three suppliers were used in this study: powder grade 0-150 produced by Real-Dzerzhinsk Ltd., Russia (hereafter named RND); powder obtained upon drying 5% nanodiamond aqueous dispersion produced by Carbodeon Ltd Oy, Finland (CND); powder produced by SKN, Snezhinsk, Russia (SND). The reason behind the choice of DND was to study the surface charge effect on the binding capacity of DND for the therapeutic agents. CND and SND have a positive zeta potential, while RND shows a negative charge in aqueous solvents.
Ketorolac Tromethamine and Diclofenac sodium with molecular weight of 376.4 and 318.1, respectively, were obtained from Sigma-Aldrich Co. LLC and used without further purification.
Modification of the initial DND was performed to obtain material having a high colloidal stability and purity required for biomedical application. Sodium bicarbonate (NaHCO3) was found to show a good effectiveness as a modifier for the chosen materials. The process of modification and simultaneous fractionating started with preparation of an initial suspension, which includes deionized water DI (18 MΩ cm, Milli-Q system, USA), a DND powder in concentration of 5 wt% and the modifying reagent. Ultrasonic pretreatment of the initial DND suspensions was not performed as sonication may result in wear debris from the sonotrode tip, which are difficult to remove. The suspension was held at room temperature for 5 hours, during which DND particles precipitated and reaction products between the modifier and surface substances of DND released into the supernatant. The precipitate was treated with water, intensively agitated with a stirrer and then centrifuged at 5000 g for 5 min at 10oC using the Eppendorf Centrifuge 5415 R (Eppendorf AG, Germany). The residue was added with water and stirred to get a uniform solution. The suspension was centrifuged at 16000 g for 20 min at 10oC and the resulting supernatant was collected. The cycle was repeated until the excess of modifier was removed (it manifested as a change of the supernatant color due to floating DND particles). Then the centrifugal fractionation of samples was conducted at 10oC with the following regimes: at 16000 g for 10 min; at 10000 g for 10 min; at 5500 g for 20 min; at 1000 g for 20 min. The final products of the modification procedure are suspensions of DND particles, whose size distribution depends on acceleration used during centrifugation. These suspensions were dried, the powders were weighed and the weight percents of each fraction were determined. Then all fractions of a certain DND were combined thus obtaining a sample to be used in experiments.
It is well known that DND enriched with carboxyl groups exhibits high affinity to proteins and polypeptides . However, for a high effectiveness the DND surface should be as uniform as possible. RND powder was used to produce the carboxylated nanodiamond (RND-COOH). The functionalization was achieved chemically employing the procedure described in  with a slight modification. An aqueous suspension of RND (3.0 g) was added to 100 ml of a preheated (60°C) mixture of H2SO4 : HNO3 (3:1) and stirred for 48 h. Then, to remove the excessive acid, 50 ml of 0.1 M aqueous NaOH were added and the mixture was stirred at 80°C for 3 hours following the addition of 0.1 M aqueous HCl for 2 hours. Finally, the resulting mixture was extensively washed several times by centrifugation with deionized water. The obtained sediment of RND-COOH was dried and dispersed in DI water for the further modification by the procedure described above. It should be noted that aqueous suspensions obtained from a dry powder of RND-COOH do not exhibit colloidal stability.
Unimodal particle size distributions of DND (pristine and NSAID-loaded) were determined with the dynamic light scattering technique using a Zetasizer Nano ZS (Malvern Instruments Ltd, UK). The same device was used for the zeta (electrokinetic) potential measurements. The data given are averaged over 3 measurements, 30 runs each performed on ~0.1 wt.% ND aqueous suspensions at 25°C. The elemental composition of DND was examined using a scanning electron microscope (Hitachi TM-1000, Japan).
where Wd - the weight of the drug adsorbed, WDND - the weight of DND nanoparticles.
The diffusion profiles of RND–COOH/Diclofenac and CND/Ketorolac complex were evaluated in vitro at 26°C employing a home-made cell assembled with a semi-permeable membrane between the donor and receptor chambers. The choice in favor of RND–COOH rather than RND was determined by the higher loading capacity of the former.
A dialysis tubing 36/32 VISKING (Serva, Germany) with the overage pore radius of 24 Å and exclusion limit of 8-15 kDa was used as the membrane. Before the experiment, the dialysis bag was activated with 10 mM EDTA-Na salt (pH 7.0) for 1 h at 50°C and then washed several times in DI water. Preliminary spectrophotometric testing showed that no DND particles could pass the barrier. The donor chamber was a plastic ring (27 mm in diameter) covered by the dialysis bag. The sample under study (2 ml) were introduced into the donor chamber, one end of which was fastened to a float immersed in a glass beaker filled with 30 ml of DI water (receptor solution). Continuous stirring was maintained throughout the testing using a magnetic bar. The receptor solution was periodically withdrawn (each hour during the first 24 hours, then with 12 hour interval) and replaced with equal volume of DI water. The drug concentration in the receptor solution was determined at the absorption maxima using the calibration curves. As a control, a release pattern of free drugs dissolved in 2 ml of DI water was monitored under the same conditions. The drug payload was virtually the same in the test and control samples. For the former, it was calculated based on the drug loading capacity of DND determined by absorption tests.
The stability of DND suspensions prepared from the as-received powders was low. After storage for ca. 1 hour they separated into observable layers containing aggregates of different sizes formed under the influence of gravity. Metallic impurities, which facilitate coagulation of individual diamond particles, may be one of the reasons for poor dispersion . In contrast, the suspensions of modified DND exhibited a good colloidal stability with no precipitation observed for at least 6 months. They retained their colloidal stability after several cycles of drying followed by the addition of water to the resulting powder. All tested materials exhibit a feature that is intrinsic for DND: the color of a powder depends on the average size of particles. It changes from a deep black for the smallest fraction through grey for the middle sized fraction to milk white or beige for the biggest one . The modification significantly reduces amounts of inorganic impurities contained in the initial DND as it was showed by the elemental analysis. For example, the total amount of metals (Al, Si, P, Ca, Fe, Ni, Cu and Zn) in RND samples was reduced by more than two times (from 1.15% to 0.47%). We attribute such improvement to the use of modifier that binds ions of bivalent metals.
Colloidal stability can be measured quantitatively through the electrokinetic potential (zeta potential). All modified DND have a measured z-potential above 30 mV or below −30 mV (Table 1) and are considered stable because these particles presumably maintain their repulsive forces while dispersed . It is important to note that the performed modification does not alter the sign of charge of DND particles in suspension, but increase the change degree (in absolute value).
The fraction analysis revealed that studied DND are polydispersed systems containing DND aggregates of different sizes (Fig. 1). All but SND samples displayed comparable average size and distribution of nanoparticles. It implies that the size effect on the drug loading capacity of these materials was not significant.
Processing of the soot or further oxidation of DND (like carboxylation) results in oxidation with predominant carboxylic acid groups on the DND surface. Dissociation of these groups in water leads to a negative charge on surfaces of RND and RND-COOH. The positive charges of CND and SND can be attributed to protonation of amino groups on the DND surfaces.
The adsorption study showed a significant difference of DND in the adsorption capacity to the NSAID as it is demonstrated in Table 2.
The data show that negatively charged DND (RND and RND-COOH) practically do not adsorb Ketorolac, which has a negative charge in water, due to electrostatic repulsion. In contrast, these DND demonstrated a high adsorption to positively charged Diclofenac with a comparable capacity. RND-COOH showed a slightly higher value, presumably due to differences in surface chemistry, since RND-COOH has a higher density of negative surface groups.
The values of the zeta potential (Table 1) for RND, RND-COOH and their conjugates with Diclofenac indicate the presence of the drug on the DND surface. Due to the formation of complexes, the zeta potential of both RND/Diclofenac and RND-COOH/Diclofenac conjugates was significantly lower in absolute magnitude than that of the pristine DND. The same way, the conjugation of Ketorolac to the CND surface decreased the positive charge of DND by about 50%, which resulted in a low stability of the complexes in suspension. Adsorption of Diclofenac also manifests in an increase in the size of RND particles by 50% (Table 1). Surprisingly, the adsorption of the drug on RND-COOH resulted in a reduction (from 83 to 66 nm) of the average particle size. Such a phenomenon we observed in our earlier studies when bovine serum albumin was adsorbed on RNDCOOH.
An attempt has been made to improve the adsorption capacity of RND-COOH for Ketorolac by changing the pH of the solution. However, the transition to alkaline medium did not lead to a change in the adsorption capacity, while even a slight decrease in pH led to the crystallization of the drug, which made it impossible to carry out the experiment.
Positively charged CND and SND showed a high adsorption of Ketorolac, although their binding capacity was different (Table 2). At the same time, SND did not adsorb Diclofenac molecules. It is widely recognized that electrostatic forces play an important role in the adsorption process on DND. However, the electrostatic attraction/ repulsion model cannot explain the observed interactions between CND and Diclofenac . The binding capacity of CND for Diclofenac was almost twofold less than that of RND or RND-COOH, however, it was still quite high.
Figures 2-3 depict the results of determining the binding capacity for RND and RND-COOH, depending on the mass ratio of Diclofenac and nanoparticles. As follows from the data presented, the binding capacity of DND increases with increase of the mass ratio, reaching the maximum values of 511 and 524 μg/mg, respectively. Given that the size of the DND particles is much larger than the size of the drug molecule, it is obvious that during adsorption the latter form several layers on the surface of DND.
Experiments on the long-term desorption carried out with DND/NSAID complexes showed a delayed effect of the nanoparticles on release of the drugs. The diffusion of the molecules of NSAID from the surface of the DND through the membrane was much slower than the diffusion of free drugs. This effect was observed for the both complexes of DND/NSAID. However, for the CND/ Ketorolac complex, the release of the drug was significantly slower than in the case of RND-COOH/Diclofenac. In this case, diffusion of free molecules of Diclofenac and Ketorolac occurred approximately at the same rate. Note that at the initial stage of exposure (time to reach half of the maximum value of the drug that passed through the membrane), the diffusion rate of the preparations within the complexes was several times less than this value for control solutions. Over time, the rate of diffusion of drugs not associated with nanoparticles tended to zero, while the rate of their diffusion from the surface of DND upon a small decrease remained almost constant.
Figures 4-5 are graphs showing the change in the total number of drug molecules passed through the membrane with time. The experimental data are well approximated by a function based on the Michaelis-Menten equation, the coefficients of which are shown in the figures. Based on these dependencies, it is possible to calculate the required drug loading on nanoparticles taking into account the time.
Results of our study showed that nanodiamonds posses properties required for an effective carrier in transdermal delivery of NSAID. Modified DND have an excellent colloidal stability and resist aggregation in aqueous solutions for long time, exhibit a high drug and cargo loading capacity, and display a sustained mechanism on the drug release thus able to provide its controlled dose to the skin. Moreover, a recent study showed the capability of nanodiamonds as a drug permeation enhancer to improve limited drug delivery through the stratum corneum with a high biocompatibility and reactive oxygen species scavenging effect .
Commercial detonation nanodiamonds were modified to reduce the amount of impurities and impart to the particles a high colloidal stability in water suspension. Modified DND retain colloidal stability after drying and can be re-dispersed in water without sonication. Physical adsorption was used to produce conjugates of the modified DND with nonsteroidal anti-inflammatory drugs Diclofenac and Ketorolac. The study of adsorption showed a high adsorption capacity of DND towards NSAID, which increases with the NSAID/DND mass ration and reaches up to 524 μg/mg. A pronounced relationship between adsorption and the charge of particles and NSAID was observed. However, a simple electrostatic model cannot explain all observed interactions between DND and NSAID. Experiments on desorption carried out with DND/NSAID complexes showed a sustained effect of the nanoparticles on drug release. Thus, the results of this study showed that detonation nanodiamonds are perspective materials to be used as a carrier in transdermal delivery of NSAID.
Fig. 1. Particle size distributions of the studied DND.
Fig. 2. Dependence of the binding capacity of RND on the ratio of Diclofenac/DND.
Fig. 3. Dependence of the binding capacity of RND-COOH on the ratio of Diclofenac/DND.
Fig. 4. Total amount of Diclofenac passed through the membrane, as a percentage of the initial concentration.
Fig. 5. Total amount of Ketorolac passed through the membrane, as a percentage of the initial concentration.
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The Complainant is Grundfos A/S of Denmark, represented by Bech-Bruun Law Firm of Denmark.
The Respondent is WangShuLi of People’s Republic of China.
The disputed domain name <grundfoschina.com> is registered with Xin Net Technology Corp.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2010. On September 17, 2010, the Center transmitted by email to Xin Net Technology Corp. a request for registrar verification in connection with the disputed domain name. On September 19, 2010, Xin Net Technology Corp. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On September 27, 2010, the Center transmitted by email to the parties in both Chinese and English regarding the language of proceedings. On September 29, 2010, the Complainant submitted a request that English be the language of proceedings. The Respondent did not comment on the language of proceedings by the specified due date.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 4, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 24, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 25, 2010.
The Center appointed Jonathan Agmon as the sole panelist in this matter on October 28, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant, Grundfos A/S, is a subsidiary of the Grundfos Group (hereinafter: "the Complainant"). The Grundfos Group, which was established in 1945 and is owned by Poul Due Jensen's Foundation, includes over 82 companies in 45 countries and specializes in manufacturing high technology pumps and pump systems.
The Complainant employs approximately 15,800 employees and has a net turnover of over DK 17.2 billion.
The Complainant has been using the GRUNDFOS mark in connection with its business and owns multiple trademark registrations for this mark in many countries around the world. For example: United Kingdom trademark registration No. 856108 – GRUNDFOS, with the registration date of August 17, 1963; Irish trademark registration No. 67887 – GRUNDFOS, with the registration date of February 17, 1964; Denmark trademark registration No. 196802852 – GRUNDFOS, registered on October 25, 1968; International trademark registration No. 341863 – GRUNDFOS, filed on January 12, 1968, designated for Austria, Bosnia and Herzegovina, Switzerland, Czech Republic, Germany, Spain, France, Croatia, Hungary, Italy, Liechtenstein, Morocco, Monaco and others; Chinese trademark registration No. 145165 – GRUNDFOS, registered on March 15, 1981; and many others.
The Complainant has also developed a formidable presence on the Internet and is the owner of several domain names, which contain the term “grundfos”. For example: <grundfos.com>, <grundfos.dk>, <grundfos.net> and many others. The Complainant is using these domain names in connection with its activities.
The disputed domain name <grundfoschina.com> was registered by the Respondent on May 12, 2010.
The disputed domain name currently does not resolve to a parking webpage, and when entered into an Internet browser the following announcement is displayed: “Internet Explorer cannot display the webpage”.
Before commencing the present UDRP action, the Complainant sent a cease and desist letter to the Respondent, dated August 2, 2010, and an additional letter to the Registrar dated July 7, 2010, asking the Respondent to transfer the disputed domain name in the name of the Complainant based on the Complainant’s trademark rights. The Respondent did not reply to the Complainant's letter.
The Complainant argues that it has established significant goodwill in the GRUNDFOS mark, which has become well-known for high technology pumps and pump systems.
The Complainant also argues that the disputed domain name is identical or confusingly similar to the GRUNDFOS trademark, owned by the Complainant, seeing that it incorporates the trademark as a whole. The Complainant further argues that the additional geographical indication "China" in the disputed domain name is insufficient to avoid confusing similarity between the GRUNDFOS trademark and the disputed domain name.
The Complainant further argues that it has rights to the GRUNDFOS trademarks as this trademark is widely recognized with the Complainant and with its operation.
The Complainant further argues that the Respondent did not make legitimate use of the disputed domain name.
The Complainant further argues that the disputed domain name is likely to mislead or confuse the public as to its source or origin.
The Complainant further argues it had not licensed or otherwise permitted the Respondent to use its GRUNDFOS trademark and is not affiliated or otherwise connected to the Respondent.
The Complainant further argues that the Respondent registered the disputed domain name for the purpose of free-riding on the Complainant's good will and reputation in the GRUNDFOS trademark or in an attempt to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s mark.
The Complainant further argues that the Respondent was aware of the Complainant’s existence and of the GRUNDFOS trademark and products at the time he registered the disputed domain name.
The language of the registration agreement for the disputed domain name is Chinese.
The Complainant requested that the language of proceedings should be in English.
“Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.“ (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004).
c) The Respondent did not object to the Complainant’s request that English be the language of proceedings despite the Center’s provision of documents in both English and Chinese.
Upon considering the above, and taking into consideration all of the facts and circumstances of this case, the Panel decides to render the Complainant’s request and rules that English be the language of proceedings.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The Complainant owns multiple trademark registrations for the mark GRUNDFOS. For example, United Kingdom trademark registration No. 856108 – GRUNDFOS, with the registration date of August 17, 1963; Irish trademark registration No. 67887 – GRUNDFOS, with the registration date of February 17, 1964; Denmark trademark registration No. 196802852 – GRUNDFOS, registered on October 25, 1968; International trademark registration No. 341863 – GRUNDFOS, filed on January 12, 1968, designated for Austria, Bosnia and Herzegovina, Switzerland, Czech Republic, Germany, Spain, France, Croatia, Hungary, Italy, Liechtenstein, Morocco, Monaco and others; Chinese trademark registration No. 145165 – GRUNDFOS, registered on March 15, 1981; and many others.
The disputed domain name <grundfoschina.com> differs from the registered GRUNDFOS trademark by the additional word "China" and the additional gTLD suffix “.com”.
The addition of the geographical indicator "China" is insufficient to avoid confusing similarity as it is a non-distinctive element that is somewhat connected with the Complainant is markets its products in among other countries, in China. The most prominent element in the domain name is clearly the term "grundfos", which lacks dictionary meaning in both English and Chinese, and may cause the public to view it as connected to the GRUNDFOS trademark.
Previous WIPO UDRP panels have ruled that the mere addition of a non-significant element does not sufficiently differentiate the domain name from the registered trademark: “The incorporation of a trademark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to the Complainant’s registered mark” (Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505). See also, “the trademark RED BULL is clearly the most prominent element in this combination, and that may cause the public to think that the domain name <redbull-jp.net> is somehow connected with the owner of RED BULL trademark” (Red Bull GmbH v. PREGIO Co., Ltd., WIPO Case No. D2006-0909).
The addition of the gTLD ".com" to the disputed domain name does not avoid confusing similarity. See, F. Hoffmann-La Roche AG v. Macalve e-dominios S.A., WIPO Case No. D2006-0451 and Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. Thus, the gTLD ".com” is without legal significance since the use of a gTLD is technically required to operate the domain name.
The result is that the Complainant has shown that the above disputed domain name is identical or confusingly similar to a trademark, in which the Complainant has rights.
Once the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, the responsibility of coming forward with evidence shifts to the Respondent to show that he has rights or legitimate interests in respect to the disputed domain name.
In the present case, the Complainant has demonstrated that the Respondent lacks rights or legitimate interests in respect of the domain name and the Respondent had failed to assert any such rights or legitimate interests.
The Panel finds that the Complainant has established a prima facie case in this regard inter alia due to the fact that Complainant has not licensed or otherwise permitted the Respondent to use the GRUNDFOS trademark, or a variation thereof.
The Respondent had not submitted a Response and did not provide any evidence to show any rights or legitimate interests in the disputed domain name that is sufficient to rebut the Complainant’s prima facie case.
The Complainant must show that the Respondent registered and is using the disputed domain name in bad faith (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may prove bad faith under paragraph 4(a)(iii).
The Complainant submitted evidence which shows that the Respondent registered the disputed domain name after the Complainant registered its trademark. According to the evidence filed by the Complainant and the trademark search performed by the Panel, the Complainant has owned registrations for the GRUNDFOS trademark at least since the year 1963. It is suggestive of the Respondent’s bad faith in these particular circumstances that the trademark, owned by the Complainant, was registered long before the registration of the disputed domain name (Sanofi-Aventis v. Abigail Wallace, WIPO Case No. D2009-0735).
The disputed domain name currently does not resolve to an active webpage, and the Panel’s browser displays an error announcement when attempting to view it. However, the fact that the Respondent does not use this domain name does not preclude the Panel from finding bad faith, having taken regard of all the circumstances of this case. See Mobimate Ltd. v. “World Mate” and Sachiwo Inagaki, WIPO Case No. D2008-1867.
Passive holding of a domain name may, in certain circumstances, constitute evidence of bad faith use. In this case, the Panel notes that the Complainant’s mark is well-known, there is no evidence of any actual or contemplated good-faith use by the Respondent, and as discussed further below, the Respondent has failed to reply to the Complainant’s cease-and-desist letter. In the circumstances, the Panel cannot conceive of any plausible good-faith use of the domain name by the Respondent. See Telstra Corporation, supra.
Paragraph 4(b)(iv) of the Policy provides that it will be considered bad faith registration and use by the respondent, if by using the domain name it had intentionally attempted to attract, for commercial gain, Internet users to the websites or other on-line locations to which the disputed domain name is resolved to, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the websites or locations or of a product or service on the websites or locations to which the domain name is resolved to.
The Panel also notes that the disputed domain name is confusingly similar to the Complainant’s trademark. Previous WIPO UDRP panels ruled that “a likelihood of confusion is presumed, and such confusion will inevitably result in the diversion of Internet traffic from the Complainant’s site to the Respondent’s site” (see Edmunds.com, Inc v. Triple E Holdings Limited, WIPO Case No. D2006-1095). To this end, prior WIPO UDRP panels have established that attracting Internet traffic by using a domain name that is identical or confusingly similar to a registered trademark may be evidence of bad faith under paragraph 4(b)(iv) of the UDRP.
In addition, the Panel notes that the Respondent failed to reply to the Complainant's cease and desist letter.
This constitutes additional evidence to the Respondent's bad faith (Alstom v. Stockmarket Domains, WIPO Case No. D2008-1542).
Based on the evidence presented to the Panel, including the late registration of the disputed domain name, the similarity between the disputed domain name and the Complainant's mark and the Respondent's default in responding to the cease and desist letter, the Panel draws the inference that the disputed domain name was registered and used in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <grundfoschina.com> be transferred to the Complainant.

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"if any person liable to an action shall conceal the fact from the person entitled thereto, the action may be commenced at any time within the period of limitation after the discovery of the cause of action."
A., who had recovered judgment in 1860 in a court of that state against B., brought suit in 1812 alleging that the latter, in 1858, in order to defraud his creditors, confessed judgments, encumbered his property, and in 1862 transferred his real and personal estate to sundry persons who held the same in secret trust for him; that on being arrested in 1862 upon final process to compel the payment of A.'s judgment, he deposed that he was not worth twenty dollars, and had in good faith assigned all his property to pay his creditors; that A., believing the statement and relying upon the representations of B. that C., his son-in-law, would with his own means purchase the judgment for fifty cents of the principal and interest, sold it in 1864 to C.; that he has since discovered that the money he received therefor belonged to B., that the latter has now an indefeasible title to the property, and that said judgment has been entered satisfied. Held that the statute of limitations commenced running when the alleged fraud was perpetrated, and that it is not avoided by a replication averring that B. fraudulently concealed the facts in the declaration mentioned, touching the encumbering or the conveying of the property, the confession of judgments, and his real ownership of the property, and that A. had no knowledge of them until a short time before the suit was brought.
could be collected, the defendant afterwards, on the 1st of January, 1864, in further pursuance of the conspiracy, pretended and represented that his son-in-law, one D. C. Keller, would purchase the judgments with his own means, and so procured the plaintiff, who acted upon the belief of the truth of the representations and of the perjured statement of the defendant, to assign the judgments to Keller for fifty percent of their principal and interest, amounting to $5,104.52, whereas in fact the judgments were bought by Keller with money furnished by the defendant, and they were held in trust by Keller for the defendant until June 1, 1873, when Keller, at the instance of the defendant, caused satisfaction to be entered. Before and since the rendition of the judgments, the defendant owned property worth exceeding $200,000. The title was held in secret trust for him by his brother Alvin and others, and was fraudulently concealed from the plaintiff until long after the assignment of the judgments. Within twelve months past, the property was all reconveyed to the defendant, and he holds it by an indefeasible title. The plaintiff had no knowledge of the ownership of the property by the defendant, nor of the secret trust, nor of the falsity of his representations, as alleged, until during the year 1872.
1. He denied all the allegations of the petition.
2. He alleged that the causes of action set forth in the petition did not accrue within six years.
3. He averred that he was not guilty of any of the grievances set forth in the complaint at any time within six years before the commencement of the action.
fact the owner of the property, and that it was held by his brother and others in secret trust for him, and that his representations as to his insolvency were false and fraudulent.
It was averred further that the concealment was effected by the defendant by means of fraud, perjury and the other wicked devices set forth and described in the plaintiff's complaint herein, and that the plaintiff had no knowledge of the facts so concealed by the defendant until the year 1872 and a few weeks only before the commencement of this suit.
The defendant demurred to the last two paragraphs of the reply. The demurrer was sustained. The plaintiff not asking leave to amend, the court gave judgment against him, and he thereupon sued out this writ of error.
"The following actions shall be commenced within six years after the cause of action has accrued, and not afterwards." 2 Rev.Stat. of 1876, p. 121.
". . . If any person liable to an action shall conceal the fact from the person entitled thereto, the action may be commenced at any time within the period of limitation after the discovery of the cause of action."
Id., 128, sec. 219. Both these provisions apply to actions for fraud. Musselman v. Kent and Others, 33 Ind. 453; Cravens v. Duncan, 55 id. 347. The statute begins to run when the fraud is perpetrated. Wynne v. Cornelison, 52 id. 312.
which declares that where there is concealment, such actions may be brought within the time limited after the discovery of the cause of action.
Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.
The provision in the statute of which the plaintiff seeks to avail himself was originally established in equity, and has since been made applicable in trials at law. There is no trace of it in the English statute of limitations of the 21st of James I, which was adopted in most of the American colonies before the Revolution and has since been the foundation of nearly all of the like legislation in this country.
Having been imported from equity, the adjudications of equitable and legal tribunals upon the subject are alike entitled to consideration.
Upon looking carefully into the reply, we find it sets forth that the concealment touching the cause of action was effected by the defendant by means of the several frauds and falsehoods averred more at length in the complaint. The former is only a brief epitome of the latter. There is the same generality of statement and denunciation, and the same absence of specific details in both. No point in the complaint is omitted in the reply, but no new light is thrown in which tends to show the relation of cause and effect, or, in other words, that the protracted concealment which is admitted necessarily followed from the facts and circumstances which are said to have produced it.
confessed were of record, and he knew it. It could not have been difficult to ascertain, if the facts were so, that they were shams. The conveyances to Alvin and Keller were also on record in the proper offices. If they were in trust for the defendant, as alleged, proper diligence could not have failed to find a clue in every case that would have led to evidence not to be resisted. With the strongest motives to action, the plaintiff was supine. If underlying frauds existed, as he alleges, he did nothing to unearth them. It was his duty to make the effort. It should be borne in mind that when the judgments were assigned to Keller, the country was in the throes of the civil war. Lee had not surrendered. Gold and silver, in the currency of the time, were at a high premium. All real property was largely depreciated. The future was uncertain. A transaction which then seemed wise and fortunate, a year later might be deemed greatly otherwise. It is hard to avoid the conviction that the plaintiff's conduct marks the difference between forethought in one condition of things and afterthought in another.
"And the plaintiff further avers that he had no knowledge of the facts so concealed by the defendant until the year A.D. 1872, and a few weeks only before the bringing of this suit."
There is nothing further upon the subject.
"and especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see whether, by ordinary diligence, the discovery might not have been before made."
Stearns v. Page, 7 How. 819, 48 U. S. 829. "This is necessary to enable the defendant to meet the fraud and the time of its discovery." Moore v. Greene, 19 How. 69, 60 U. S. 72. The same rules were again laid down in Baubien v. Baubien, 23 How. 190 and in Badger v. Badger, 2 Wall. 95.
it was, how it was made, and why it was not made sooner. Carr v. Hilton, 1 Curt.C.C. 220.
The fraud intended by the section which shall arrest the running of the statute must be one that is secret and concealed, and not one that is patent or known. Martin, Assignee v. Smith, 1 Dill. 85, and the authorities cited.
"Whatever is notice enough to excite attention and put the party on his guard and call for inquiry is notice of everything to which such inquiry might have led. When a person has sufficient information to lead him to a fact, he shall be deemed conversant of it."
Kennedy v. Greene, 3 Myl. & K. 722.
"The presumption is that if the party affected by any fraudulent transaction or management might with ordinary care and attention have seasonably detected it, he seasonably had actual knowledge of it."
Angell, Lim., sec. 187 and note.
A party seeking to avoid the bar of the statute on account of fraud must aver and show that he used due diligence to detect it, and if he had the means of discovery in his power, he will be held to have known it. Buckner & Stanton v. Calcote, 28 Miss. 432, 434. See also Nudd v. Hamblin, 8 Allen (Mass.) 130.
In Cole v. McGlathry, 9 Me. 131, the plaintiff had given the defendant money to pay certain debts. The defendant falsely affirmed he had paid them, and fraudulently kept the money. It was held that the plaintiff could not recover because he had at all times the means of discovering the truth by making inquiry of those who should have received the money.
denial was not such a fraudulent concealment as would take the case out of the bar of the statute.
Numerous other cases to the same effect might be cited. They all show the light in which courts regard the qualification here in question of the limitation which would otherwise apply.
The subject has been several times considered in the State of Indiana, whence this case came. In Boyd v. Boyd, 27 Ind. 429, it was ruled that the concealment under sec. 219, which will avoid the statute, must go beyond mere silence. It must be something done to prevent discovery.
Stanley v. Stanton, 36 id. 445, is instructive with reference to the case before us. In 1870, A. sued B. The complaint alleged that in 1848, B. falsely represented himself to A. to be the agent of C., to whom A. was indebted on a promissory note, and that A. paid the money to B. as such agent, and that B. promised to pay it over to C., which he had not done. B. pleaded the statute of limitations. A. replied that he paid the money to B. on his claim that he was the agent of C.; that B. was not such agent, but concealed the fact from A., and promised A. to pay the money to C., which he had not done, and that by reason of the concealment, A. did not discover the cause of action until the fall of the year 1869. It was held that, the concealment being all previous to the accruing of the cause of action, something more than the silence of B. was necessary to prevent the running of the statute, and that the action was barred. The concealment, it was said, must be the result of positive acts.
world that the transactions were bona fide transactions is too general to amount to anything."
The fraud and deceit which enable the offender to do the wrong may precede its perpetration. The length of time is not material, provided there is the relation of design and its consummation.
Concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry.
There must be reasonable diligence, and the means of knowledge are the same thing in effect as knowledge itself.
The circumstances of the discovery must be fully stated and proved, and the delay which has occurred must be shown to be consistent with the requisite diligence.
The reply is clearly bad. It contains some vigorous declamation, but is wanting in the averment of facts, which are indispensable to give it sufficiency as a pleading, for the purpose intended. The complaint to which it refers does not help it. Further remarks are unnecessary. The demurrer was properly sustained by the circuit court.

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Sin Sin Fine Art proudly joined Art Central for the first time this year. During 21 – 26 March, we brought the reowned Indonesian Artists Bob Yudhita Agung and S. Teddy Darmawan’s recent pieces to everyone’s favourite Sin Sin Lane along with Helsinki based Indonesian Artist Dwi Setianto’s performance on his maganificent installation.
“day2day” continued at Sai Street opening on 24th March exhibiting the inventive artworks from Sin Sin Man, Hanafi, Lie Fhung and Rick Lewis in companion with the our beloved musicians’ improvised Jazz and the captivating Brazilian capoeira. Special thanks to Blue Butcher, Champagne G.H.MUMM, Tai Ping Carpet and Otto Tape for making everything happen.
Last but not least a big thank you to everyone who dropped by during Hong Kong's Crazy Art Week despite the pouring rain.
Click [More] to enjoy a glimpce of what you missed on “day2day”.
Keeping up with a fast-paced life in Hong Kong, one can easily overlook diminutive occurrences that nevertheless provide stability and strength. On closer look, those seemingly insignificant day to day activities can turn out to be stepping stones to introspection and spirituality.
As Sin Sin Man writes in her artist statement: “Life is constant change and so we cherish the constants that are dispersed like bridgeheads throughout our life. They are anchors, towers and markers of a finite timeline.” The small, repetitive day to day occurrences make up some of those bridgeheads.
“day2day” at Sin Sin Fine Art continues until 24 May 2016. It features 4 artists’ interpretation of a “significant day to day insignificance”: Hanafi (Indonesia), Lie Fhung (Indonesia/Hong Kong), Rick Lewis (USA) and Sin Sin Man (Hong Kong).
The Tai Ping’s custom rug, adapted from one of the ink-on-paper artworks by Sin Sin Man will be shown as one of the display items. “Energy Process” as the design is named, is an interpretation of human body energy flow. Strong and weak energy dynamics intertwine through the cleverly overlay of opulent silk to create a magnificent pattern and exquisite textures. The 2 metre by 2.9 metre rug is a perfect manifestation of Tai Ping’s long established artisanship and celebration of the talent of Sin.
Tai Ping Carpet and Sin Sin Fine Art cordially invite you to join us for cocktails as we celebrate the launch of “ Energy Process” Carpet at Sin Sin Fine Art with “day2day” exhibition.
Sin Sin Fine Art associated with "Le French May" proudly presents a solo exhibition by French Artist Vincent Cazeneuve(Wensen Qi) who has been living in China for 9 years.
His creations connect the audience to the primitive sensation of the natural beauty freed from a analytic approach.
“The purpose of my paintings, large or small, has always been to take the viewer along with me on a shared journey of experience and feeling that allows them to observe the multiple changes of plane and intensity of colors and paints. This is especially true in my recent small scale Portraiture-Like works.
My act of painting is a dialogue between the conscious and the unconscious and the orientation of myself to the world” - Julia Nee Chu.
If you are in Los Angeles, make sure you won’t miss “Near and Afar” - the first solo exhibition of Julia Nee Chu in LA in over 20 years.
Eddi Prabandono is an Indonesian artist well known for his surreal sculptures - giant clay sculptures, some creations involved shovels, bicycles, skateboards, car, traffic sign and even a multi-looped Vespa.
Eddi will participate in this group show featuring artists from around Asia – including Aditya Novali from Indonesia, Miyanaga Aiko from Japan and Donna Ong from Singapore – whose pieces explore the technicality and significance of the various media they work with.
Open Studio is to Catch a glimpse of the vibrant, creative culture of Industry City, as more than 75 painters, photographers, sculptors, stained-glass artists, woodworkers, jewelers, textile designers, graphic designers open their doors to the public.
Rick Lewis will open his studio to the public as part of the IC Open Studios event in Sunset Park Brooklyn. Please do not miss the chance if you are around Brooklyn hood.
“Tumpek Kandang” is a Balinese ceremony to venerate the Almighty God as Shiva or Pasupati, which maintains all beings in this universe. The worship is manifested by giving thanksgiving ceremony to all animals, particularly cattle. It is one of the Balinese traditions giving the message that people should always act friendly against the nature and its contents.
Besides Hinduism Today in Bali there are also several different tumpek items , namely Tumpek Uduh for plants , Tumpek Landep for metal objects and tools ,Tumpek Kuningan to ancestral spirits , Tumpek Wayang puppets for shadow play and Tumpek Krulut for gamelan musical instruments traditional - all of which occurred in the 210 - day cycle on the calendar pawukon .
We all know some pairings in life are perfect together - Bread and Butter, Steak and Chips, Food and Art. Now you can experience all of these Yin and Yang’s under one roof.
For the months of March and April Blue Butcher has partnered with Sin Sin Fine Art displaying multi-media artworks by a selection of established Indonesian artists such as Bob Yudhita Agung, M.Irfan, Kokok P. Sancoko and Putu Sutawijaya in the restaurant itself.
We have invited 12 media friends to join us to preview these amazing art pieces selected by Sin Sin Man at Blue Butcher for an artsy lunch gathering.
The Dance "IN" Possible!? started from 1999 and now we have 5 series and 7 pieces. Aiming to discover the relationship between life with theatre, dance and performance, and to examine and explore more possibility of dance.
Dance artists and co-founders of Y-Space, Victor Choi-wo Ma and Mandy Ming-yin Yim review their life in dance at the age of 50+.. at it's fifth episode.!
It has been successfully shown last weekend at HK Culture center. We send our gratitude to all the efforts they have made to promote Contemporary dance culture in Hong Kong.
If you have missed the performance, click more to see what you have missed out.

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148. An executed trust is one in -which the terms and limitations are definitely and completely declared by the instrument creating it.
149. An executory trust is one in which the limitations are not completely declared, but only an outline given, by which the trustee is to declare the final limitations of the trust estates.
34 Wright v. Pearson, 1 Eden, 125; Austen v. Taylor, Id. 361; Jerroise v. Duke of Northumberland, 1 Jac. & W. 559.
35 Austen v. Taylor, 1 :Eden, 361; Neves v. Scott, 9 How. 196; Cushing v. Blake, 30 N. J. Eq. 6S9; Tallman v. Wood, 26 Wend. (N. Y.) 9.
36 Wright v. Pearson, 1 Eden, 125; Jerroise v. Duke of Northumberland, 1 Jac & W. 559. Executory trusts are closely applied to powers. See post, p. 306.
37 Tallman v. Wood, 26 Wend. (N. Y.) 9. Mcelroy y. Mcelroy, 113 Mass. 509; Cashing v. Blake, 30 N. J. Eq. 689; Wight v. Leigh, 15 Yes. 564.
38 Neves v. Scott, 9 How. 196; Gause v. Hale, 2 Ired. Eq. (N. C.) 241; Smith v. Maxwell, 1 Hill (S. C.) 101; Green v. Rumph, 2 Hill (S. C,) 1; Carroll v. Renich, 7 Smedes & M. (Miss.) 798.
39 See post, p. 295.
151. The parties to the creation of a trust are,(a) The feoffor, or creator.
(b) The feoffee, or trustee, who holds the legal title.
(c) The cestui que trust, or beneficiary.
Any real property may be held in trust.43 The requirements as to description of the property conveyed, the designation of the feoffee and of the cestui que trust, etc., are matters of conveyancing, and will be discussed in a subsequent chapter.
40 Bunn v. Winthrop, 1 Johns. Ch. (N. Y.) 329; Ownes v. Ownes, 23 N. J. Eq. 60; Massey v. Huntington, 118 Ie. 80, 7 N. E. 269; Branson v. Henry, 140 Ind. 455, 39 N. E. 256; Anon Brooke, 89. But see Beeman v. Beeman, 88 Hun, 14, 34 N. Y. Supp. 484; Hamilton v. Downer, 152 I1l 651, 38 N. E. 733. The instrument of creation must be executed and delivered. Govin v. De Miranda, 9 Misc. Rep. 684, 30 N. Y. Supp. 550.
41 Tiayes v. Kershow, 1 Sandf. Ch. (N. Y.) 258; Bunn v. Winthrop, 1 Johns. Ch. (N. Y.) 329; Buford v. Mckee, 1 Dana (Ky.) 107.
42 See post, p. 267.
43 1 Perry, Trusts (4th Ed.) §§ 67-69; 2 Washb. Real Prop. (5th Ed.) p. 416. But a trust cannot be created in a mortgage, where it is only a lien, though there may be a trust In the mortgage debt. Merrill v. Brown, 12 Pick. (Mass.) 216.

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David E. Caywood, Michael F. Pleasants, Memphis, Tenn., for plaintiffs.
James H. Allen, Asst. Dist. Atty. Gen., Memphis, Tenn., for defendant Canale.
C. Hayes Cooney, Asst. Atty. Gen., Nashville, Tenn., for defendants Pack and Dunn.
Before LIVELY, Circuit Judge, BROWN, Chief District Judge, and McRAE, District Judge.
Plaintiffs Airways Theater, Inc. and Southland Theatres, Inc., operators of "adult" motion picture theaters in Memphis, Tennessee, challenge the constitutionality of Tennessee's obscenity statute, T.C.A. § 39-3003 through 39-3008, and Tennessee's nuisance statute, T.C.A. § 23-301 et seq. Plaintiffs seek both declaratory and injunctive relief. Jurisdiction is based on 28 U.S.C. § 1343(3) and (4) and 28 U.S.C. § 2201. Since plaintiffs seek to enjoin state officers from enforcing allegedly unconstitutional statutes, a three-judge court has been convened. 28 U.S.C. § 2281.
Plaintiffs contend that the statutory definition of obscenity in § 39-3007 is vague and overbroad in the light of the requirement in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), that the sexual conduct prohibited must be specifically defined. Plaintiffs also challenge the procedures established by the obscenity statute for obtaining temporary restraining orders or injunctions, contending that, properly construed, they allow such to be issued without a prior adversary hearing. The nuisance statute is challenged on the grounds that it is vague and overbroad and that it operates as a prior restraint without procedural safeguards.
Defendants rely on the threshold defenses that plaintiffs have not stated an actual controversy, that, as to plaintiff Southland, the existence of a criminal proceeding against it under the obscenity statute prevents the granting of any relief to it with respect to that statute, and that this Court should, applying the abstention doctrine, deny all relief to plaintiffs. Defendants further contend that in any event, properly construed, the involved statutes are constitutional.
We conclude that plaintiffs have stated an actual controversy, but that the existence of a criminal proceeding against plaintiff Southland, together with a proper application of the abstention doctrine, preclude this Court from granting either declaratory or injunctive relief as to the obscenity statute. We do, however, hold that Tennessee's nuisance statute is unconstitutional.
We conclude that the facts alleged indicate that there is "a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality. . . ." Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). It is without question that there is an actual controversy as to plaintiff Southland involving the obscenity statute since subsequent to the filing of this action, Southland was indicted in state court under that statute.
Moreover, prior to the filing of this action, two injunctions had been issued against Southland in state Criminal Court pursuant to the obscenity statute.
Plaintiffs' other allegations also lead to the conclusion, although it is not without doubt, that there is an actual controversy as to plaintiff Southland involving the nuisance statute and as to plaintiff Airways involving both statutes in question. Plaintiffs have alleged that they are operators of "adult" motion picture theaters and that they have been exhibiting adult motion pictures and desire to continue doing so in a lawful manner. Tennessee's obscenity and nuisance statutes are directed in part at such establishments. It is without dispute that defendant District Attorney General Canale made statements in the Memphis newspapers shortly before this action was filed which indicate that he intends to enforce the statutes in question. In addition, representatives of defendant Canale have at his direction recently attended movies at the Airways Theater. Since plaintiff Southland has been enjoined under this obscenity statute prior to the filing of this action, and subsequent to such filing has been indicted, it is reasonable to conclude in the light of defendant Canale's statements and his representatives' actions that both plaintiffs have "assert[ed] a sufficiently direct threat of personal detriment," Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), both as to the obscenity statute and the nuisance statute.
The nuisance statute was only recently amended to include lewdness and obscene or pornographic material.
Prior to the filing of this action, as indicated, two injunctions had been issued against plaintiff Southland in the Criminal Court of Shelby County, Tennessee pursuant to T.C.A. § 39-3003. Plaintiff Southland contends, however, that since these injunctions are civil in nature, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) does not require that we dismiss this action. We need not reach the question of whether Younger proscribes interference in pending state civil actions, for after examining T.C.A. § 39-3003, pursuant to which the injunctions were issued, we conclude that the issuance of injunctions under that section is a first step in a process which looks toward the submission of an indictment to the grand jury, and thus § 39-3003 (including that part authorizing the issuance of injunctions) should be regarded as part of a criminal process.
§ 39-3005 also provides for injunctions, but looks not toward ultimate submission to the grand jury; rather, upon the obtaining of a permanent injunction, it looks to the seizure and destruction of obscene material.
Thus, there having been no allegations by Southland of harassment or bad faith prosecution, Younger, supra, requires that this Court not grant that plaintiff injunctive relief as to the obscenity statute and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) likewise precludes declaratory relief.
The Supreme Court of Tennessee, as a result of the remand to it of cases by the Supreme Court of the United States, is presently considering the constitutionality of the Tennessee obscenity statute in the light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Although the Tennessee statute does not describe specific prohibited sexual conduct, it is possible that the Tennessee Supreme Court might give it such a limiting construction, e. g., as the Supreme Court of the United States construed a federal obscenity statute in United States v. 12 200-Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 n. 7 (1973). Similarly the question whether the obscenity statute, insofar as it establishes injunction procedures, can be constitutionally construed is also before the Tennessee Supreme Court. Thus, the doctrine of abstention requires that this Court refrain from granting either plaintiff injunctive or declaratory relief regarding the obscenity statute. Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
The Tennessee obscenity statute (§ 39-3007) tracks the language of the Supreme Court in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).
Since there is no Younger v. Harris or abstention problem as to either plaintiff regarding the nuisance statute, we now consider the constitutionality of that statute. We conclude that the statute is unconstitutional for at least two reasons. In the first place, among the definitions of nuisance in the statute is "any place in or upon which . . . possession of any material determined to be obscene or pornographic . . . [is] carried on or permitted. . . ." "Place" is defined in the statute as "any building, room, enclosure or vehicle, or separate part or portion thereof or the ground itself." Thus, possession in one's home of material determined to be obscene or pornographic would clearly make that home a nuisance subject to abatement. Under Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), the state's power to regulate obscenity "does not extend to mere possession by the individual in the privacy of his own home." 394 U.S. at 568, 89 S.Ct. at 1250.
It is not contended that there are any pending state actions against either plaintiff under the nuisance statute or that the constitutionality of that statute is challenged in any state court. Moreover, as will be seen, the statute is not subject to an interpretation that would allow it to pass constitutional muster.
Secondly, the nuisance statute also provides that "[a]ll furnishings, fixtures, equipment . . . and stock, used in or in connection with the maintaining or conducting of a nuisance shall be subject to seizure, immediately upon detection by any law enforcement officer. . . ." Thus, once there is a determination of obscenity by a law enforcement officer, the seizure of the property may take place. In Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), the Supreme Court overturned a seizure of a film which "proceeded solely on a police officer's conclusions that the film was obscene." A magistrate had not been afforded an opportunity to "focus searchingly on the question of obscenity." 93 S.Ct. 2802, 37 L.Ed.2d 765-766. The Tennessee nuisance statute permits not only seizure of the film or other obscene material, conduct that was proscribed in Roaden, but also seizure of furnishings, fixtures and equipment used in connection therewith merely upon determination of obscenity by a law enforcement officer.
It results that plaintiffs' claim with respect to the unconstitutionality of the obscenity statute should be dismissed without prejudice. With respect to the nuisance statute, plaintiffs are entitled to a declaration of unconstitutionality; however, they are not entitled to an injunction against enforcement of such nuisance statute since they have not shown irreparable injury. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).
Since the judgment to be entered will be somewhat unusual as to its content, it is requested that the parties prepare and submit such to this Court.


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I would grant the petition for a writ of certiorari and either reverse out of hand or put the case down for argument.
By a 1903 Treaty the United States obtained a corridor across the Republic of Panama from the Caribbean to the Pacific. 33 Stat. 2234. But Art. VI of the Treaty provided that the grants to the United States shall not 'interfere with the rights of way over the public roads passing through the said zone . . . unless said rights of way or private rights shall conflict with rights herein granted to the United States in which case the rights of the United States shall be superior.' 33 Stat. 2234; 3 Canal Zone Code pp. 428, 431.
Petitioner is a Panamanion who has been operating buses in Panama for 23 years. His license to operate was granted by the Republic of Panama and his area of operation begins and ends in the Republic of Panama. Under a reciprocal agreement between the Canal Zone and Panama any motor vehicle inspected in Panama will be accepted in the Canal Zone and vice versa.
The public road travelled by petitioner crosses the Canal Zone and his operations in no way conflict with 'any rights granted to the United States' under the 1903 Treaty. [406 U.S. 935 , 936] The Canal Zone authorities decided to give all cross-Canal Zone public transportation to one Delaware corporation. The necessity of the Delaware corporation's meeting minimum wage requirements was said to be the reason. No hearings, however, were held. The petitioner and the other 'indigents' were given no notice and no opportunity to be heard. They were driven out of business by the ipse dixit of the Governor and petitioner stands criminally convicted. Petitioner is no fly-by-night operator. He operated 15 buses and employed 30 people and was in this business for 23 years. His crossing of the Canal Zone is guaranteed by the 1903 Treaty; and though one agrees arguendo that the right may be regulated as to times and circumstances, there is no defensible reason given why a person should be driven out of business with no chance to be heard.
'When Congress came to pass the act of July 1, 1902, it enacted, almost in the language of the President's instructions, the Bill of Rights of our Constitution. In view of the expressed declaration of the President, followed by the action of Congress, both adopting, with little alteration, the provisions of the Bill of Rights, there would seem to be no room for argument that in this form it was intended to carry to the Philippine Islands those principles of our Government which the President [406 U.S. 935 , 937] declared to be established as rules of law for the maintenance of individual freedom, at the same time expressing regret that the inhabitants of the islands had not theretofore enjoyed their benefit.
'How can it be successfully maintained that these expressions of fundamental rights, which have been the subject of frequent adjudication in the courts of this country, and the maintenance of which has been ever deemed essential to our Government, could be used by Congress in any other sense than that which has been placed upon them in construing the instrument from which they were taken?' Kepner v. United States, 195 U.S. 100, 124 .
That is the approach we should take here.
Procedural due process, for example, may not be necessary before food unfit for human use is seized. See North American Cold Storage Co. v. Chicago, 211 U.S. 306 . But barring the need for quick, expeditious action, the amenities of notice and hearing are required whether discharge from public employment be at issue, Slochower v. Board of Higher Education, 350 U.S. 551 ; denial of a tax exemption, Speiser v. Randall, 357 U.S. 513 ; disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398 ; or the termination of welfare benefits, Goldberg v. Kelly, 397 U.S. 254 , 263-265.
The honor of this Nation, as well as the livelihood of this petitioner, is at stake here. We grant Panamanians a Bill of Rights and dishonor it. The imperialistic, colonial attitude of our administration in the Canal Zone is notorious. But the 'natives' are entitled to the same due process which we grant our own citizens.
I see no reason why we should not reverse this judgment out of hand. The least we can do is to set the case for argument.

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