UNITED STATES of America, Appellee, v. Jerome HUDSON, Defendant, Appellant.
Before HOWARD, Chief Judge, SELYA and STAHL, Circuit Judges. Jane Elizabeth Lee, for appellant. Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Jerome Hudson pled guilty, without a plea agreement, to possession of ammunition by a felon. See 18 U.S.C. § 922(g)(1). Based upon his criminal history he was sentenced as an armed career criminal. See 18 U.S.C. § 924(e)(1). On appeal, he claims error in his designation as an armed career criminal and also in the calculation of his Guideline Sentencing Range (“GSR”). We affirm Hudson's classification as an armed career criminal. In light of the government's concession of error in the calculation of Hudson's GSR, we vacate his sentence and remand.
At 7:50 in the morning on January 13, 2014, officers in Lewiston, Maine responded to a reported shooting near an apartment complex. Their investigation quickly identified Hudson—who had fled the scene—as the perpetrator. The police learned through witnesses that an altercation had occurred between Hudson and the father of Hudson's girlfriend's children. That argument escalated until Hudson fired a number of shots at the other man at “point blank range.” All of this took place as a number of school-aged children began to come out of their homes to catch the school bus.2 The police retrieved four spent shell casings from the scene and made contact with Hudson's girlfriend at the apartment that he and she shared. With her consent, the police searched the home and located an open safe containing 35 rounds of 9mm ammunition, one loose round of .45 caliber ammunition, and two loose rounds of Winchester 9mm ammunition. Officers found Hudson hiding in a stairwell a short distance away, and upon being apprehended he stated “you guys have my ammo and that's all you're getting, you won't find my gun.” Hudson would later admit to firing the shots, but claimed that he did so as a “warning” because the other man was reaching for something in his waistband.
On April 4, 2014, a federal grand jury indicted Hudson for possession of ammunition by a felon. The indictment included notice that the government intended to classify Hudson as an armed career criminal, specifying five separate prior Massachusetts convictions.3 See 18 U.S.C. § 924(e). Prior to his October 14, 2014 sentencing, Hudson objected to a recommendation in the PSR that he be designated as an armed career criminal. At sentencing, the court identified three of the five enumerated offenses as qualifying convictions for violent crime under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and the sentencing judge imposed a 216–month incarcerative term followed by 5 years of supervised release.
The ACCA requires the imposition of more severe sentences on repeat offenders when they are convicted of certain new crimes. See 18 U.S.C. § 924. In this case, if Hudson has “three previous convictions ․ for a violent felony or a serious drug offense, or both,” then a mandatory 15–year prison sentence and other sentencing enhancements follow. Id. § 924(e)(1). Whether a prior conviction qualifies as a “serious drug offense” or a “violent felony” under the ACCA is a question of law, and where, as here, the question is preserved, we undertake a de novo review. See United States v. Holloway, 630 F.3d 252, 256 (1st Cir.2011); United States v. McKenney, 450 F.3d 39, 42 (1st Cir.2006).
When a claim runs headlong into circuit precedent, our law of the circuit doctrine must be confronted. That doctrine “dictates that ‘[i]n a multi-panel circuit ․ newly constituted panels ordinarily are constrained by prior panel decisions directly (or even closely) on point.” Holloway, 630 F.3d at 258 (quoting United States v. Guzman, 419 F.3d 27, 31 (1st Cir.2005)). Absent special circumstances, we are duty bound to follow our prior holding. See United States v. Chhien, 266 F.3d 1, 11 (1st Cir.2001) (listing exceptions).
Hudson offers no new or previously unaddressed reason to deviate from our prior holdings on the issue. He argues only that the Supreme Court's decision in United States v. Rodriguez, 553 U.S. 377, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008), represents a shift in authority that requires us to revisit Moore. This argument is not a novel one; we have already held that there is “nothing in the Supreme Court's intervening decision in United States v. Rodriguez to require us to revisit” our holding in Moore. United States v. Weekes, 611 F.3d 68, 72 (1st Cir.2010) (citation omitted). Accordingly, a Massachusetts conviction for possession with intent to distribute a class B substance continues to qualify as a “serious drug offense” under the ACCA.
The government maintains that Hudson's prior felony conviction for Assault with a Dangerous Weapon, Mass. Gen. Laws ch. 265, § 15B(b), also qualifies as a predicate “violent felony” under the ACCA. See 18 U.S.C. § 924(e)(2)(B). Although the ACCA's residual clause is no longer effective, the government argues that a Massachusetts ADW conviction fits within the ACCA's “force clause” (also referred to as the “elements clause”).
The force clause requires that a qualifying conviction stem from a crime punishable by more than one year in prison “that has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. The Supreme Court defines the phrase “physical force” within the context of the force clause to “mean[s] violent force—that is, force capable of causing physical pain or injury to another person.” Johnson v. United States (Johnson I), 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).
Massachusetts law provides that “[w]hoever, by means of a dangerous weapon, commits an assault upon another shall be punished․” Mass. Gen. Laws ch. 265, § 15B(b). And we have held that a Massachusetts ADW conviction qualifies as a predicate offense under the force clause of the ACCA. See United States v. Am, 564 F.3d 25, 33–34 (1st Cir.2009). As noted earlier, however, intervening authority, such as a Supreme Court decision, can undermine a once well-settled holding. Hudson argues that intervening authority renders Am unpersuasive and urges us to undertake a new categorical analysis. He suggests two separate reasons why his ADW conviction now falls outside the bounds of the force clause: 1) because the statute lacks the necessary element of “physical force,” and 2) because the statute fails to require a sufficient mens rea.
Hudson first argues that, because a Massachusetts ADW constitutes an attempted or threatened battery, and because in Massachusetts a battery can be committed with a “mere touching, however slight,” United States v. Fish, 758 F.3d 1, 9 (1st Cir.2014) (internal citation and quotation marks omitted), ADW necessarily lacks the requisite level of physical force. The argument thus identifies the combination of the Supreme Court's decision in Johnson I (violent force required) and our observation in Fish that battery may be accomplished by mere touching as abrogating Am. We have already directly addressed and rejected this same argument. See United States v. Whindleton, 797 F.3d 105, 115–16 (1st Cir.2015) (holding that “ADW can be a violent felony under the [f]orce [c]lause, even if simple assault is not, by virtue of the additional dangerous-weapon element.”).
The same law of the circuit principles that guide our analysis with respect to the drug conviction apply equally to this claim. Hudson points to no post-Whindleton authority that would require us to revisit our prior holding, and we see no good reason to do so. Thus, we reaffirm that a Massachusetts ADW conviction meets the physical force requirement under the force clause of the ACCA.
Hudson's second theory, which also relies on Fish, is that his ADW conviction does not qualify as a predicate offense because the Massachusetts ADW statute does not require a sufficient mens rea. In Fish, we held that a prior Massachusetts conviction for assault and battery with a dangerous weapon (“ABDW”), see Mass. Gen. Laws ch. 265, § 15A(b), did not qualify as a “crime of violence” as defined in 18 U.S.C. § 16(b). See 758 F.3d at 17. Fish's analysis applied the principles first espoused by the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1, 9–10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), wherein the Court held that “use” as contained within a similarly worded federal statute7 requires “active employment” and thus does not encompass crimes that may be committed with a mens rea of negligence or less. Fish determined that, because a Massachusetts ABDW can be committed with “the intentional commission of a reckless act” it “falls short of the mens rea required” for use of physical force. 758 F.3d at 16. Reasoning from Leocal, the majority in Fish observed that “sister circuits have concluded ․ that section 16(b) does not reach recklessness offenses,” and “[o]n the force of Leocal's logic, we hold the same.” Id. at 9–10. Hudson seeks to apply Fish's mens rea analysis to disqualify his ADW conviction.
The Massachusetts cases observe that “an assault may be perpetrated in either of two ways[:] the crime may consist of ‘an attempted battery’ or ‘an immediately threatened battery.’ ” Commonwealth v. Melton, 436 Mass. 291, 763 N.E.2d 1092, 1096 (Mass.2002) (quoting Commonwealth v. Gorassi, 432 Mass. 244, 733 N.E.2d 106 (Mass.2000)). For convictions under either theory, proof of specific intent is required. See e.g., Commonwealth v. Musgrave, 38 Mass.App.Ct. 519, 649 N.E.2d 784, 787–88 (Mass.App.Ct.1995) aff'd 421 Mass. 610, 659 N.E.2d 284 (Mass.1996).
Under the threatened battery variant, “conviction of assault by means of a dangerous weapon requires proof of an overt act undertaken with the intention of putting another person in fear of bodily harm and reasonably calculated to do so, whether or not the defendant actually intended to harm the victim.” Commonwealth v. Domingue, 18 Mass.App.Ct. 987, 470 N.E.2d 799, 802 (Mass.App.Ct.1984). Thus, in order to meet its burden at trial, the Commonwealth must show that “the defendant intended to place the victim in fear of an imminent battery” with a dangerous weapon. Porro, 939 N.E.2d at 1163. This intent requirement fits squarely within the ACCA's definition of “threatened use” of physical force as contemplated in 18 U.S.C. § 924(e)(2)(B)(i).
Similarly, “[u]nder the attempted battery theory, the Commonwealth must prove that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so.” Melton, 763 N.E.2d at 1096. It follows that “[a] defendant must intend a battery to be guilty under the attempted battery theory.” Porro, 939 N.E.2d at 1163. Thus, a conviction for ADW under this variant necessarily entails the “attempted use ․ of physical force” as required by 18 U.S.C. § 924(e)(2)(B)(i).
The cases also make clear that a mens rea of recklessness is not enough to support an ADW conviction. ADW requires specific intent, because “the central aspect of an assault is an attempted application of physical force or a threat of the use of physical force, either by an attempt to do bodily harm, or by placing the victim in fear of imminent bodily harm.” Gorassi, 733 N.E.2d at 110. This framework, coupled with the “additional dangerous-weapon element,” Whindleton, 797 F.3d at 115, places a Massachusetts ADW conviction within the language of § 924(e)(2)(B)(i). Accordingly, a Massachusetts ADW conviction meets both the physical force and mens rea requirements necessary to qualify as a predicate offense under the ACCA's force clause.
The district court sentenced Hudson to an incarcerative term of 216 months, within an advisory GSR of 188–235 months. As previously discussed, however, after the sentencing in this case was concluded, the Supreme Court decided Johnson II. The government concedes that Johnson II's invalidation of the ACCA's residual clause renders erroneous the sentencing court's calculation of the applicable sentencing range. Despite this concession, the government maintains that the sentence should nevertheless be affirmed.
First, the government accepts that Johnson II's holding that the ACCA's residual clause is unconstitutionally “vague in all its applications,” 135 S.Ct. at 2561, invalidates the district court's application of United States Sentencing Guidelines (“USSG”) § 4B1.4(b)(3)(A) to set a Base Offense Level (BOL) of 34. That section of the armed career criminal guideline requires a finding that a defendant “used or possessed the ․ ammunition in connection with ․ a crime of violence.” In turn, the definition of “crime of violence” applicable to the sentencing in this case is found in USSG § 4B1.2(a)(2), the residual clause of the career offender guideline.9 As that definition of “crime of violence” is the same as in the ACCA, the government acknowledges that it is invalid after Johnson II. See, e.g., United States v. Winter, 22 F.3d 15, 18 n. 3 (1st Cir.1994) (noting “substantial similarity” between the ACCA and § 4B1.2 and that “interpreting one phrase frequently is found to be persuasive in interpreting the other phrase”). The government and Hudson agree that, instead, the armed career criminal guideline's default offense level should be applied in this case. See USSG § 4B1.4(b)(3)(B). The parties agree that the appropriate BOL is therefore 33, and, after a reduction for acceptance of responsibility, Hudson's total offense level (TOL) should be 30, rather than the 31 that was assigned at sentencing.
Second, the government says that Johnson II also operates to invalidate Hudson's placement in Criminal History Category (CHC) VI, again because that determination relied upon the career offender guideline's definition of crime of violence. See id. § 4B1.4(c)(2). The parties agree that CHC V is appropriate, and that combining the correct TOL of 30 with CHC V yields a proper GSR calculation of 151–188 months' imprisonment rather than the GSR of 188–235 months calculated at sentencing. For purposes of this appeal, we accept the government's concessions, but after accepting them we vacate and remand for resentencing.
In a sentencing appeal under plain error review, to show that an error affected his substantial rights, a defendant must demonstrate “a reasonable likelihood ‘that, but for the error, the district court would have imposed a different, more favorable sentence.’ ” United States v. Ortiz, 741 F.3d 288, 293–94 (1st Cir.2014) (quoting United States v. Turbides–Leonardo, 468 F.3d 34, 39 (1st Cir.2006)). Relevant to Hudson's claim, the Supreme Court has observed recently that “[w]hen a defendant is sentenced under an incorrect guidelines range—whether or not the defendant's ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina–Martinez v. United States, ––– U.S. ––––, 136 S.Ct. 1338, 1345, –––L.Ed.2d –––– (2016); see also Ortiz, 741 F.3d at 294 (noting that “a calculation error that artificially increases the GSR is unlikely to be harmless”). Our approach has been to attempt to discern whether there exists “a ‘clear statement by the [sentencing] court’ that would be sufficient to ‘diminish the potential of the [Guideline Sentencing Range] to influence the sentence actually imposed.’ ” United States v. Marchena–Silvestre, 802 F.3d 196, 201 (1st Cir.2015) (quoting Ortiz, 741 F.3d at 294). If such a clear statement exists, then we may affirm the sentence. See Molina–Martinez, 136 S.Ct. at 1346–47.
I see no basis to vary from the [GSR] in this case, certainly [none] to vary underneath the guidelines in this case, and considering [Hudson's] personal circumstances and the nature and circumstances of this particular offense, I conclude that a sentence of about the middle [of] that range is appropriate.
These observations, though appropriately severe, do not suggest to us that the court intended to untether Hudson's sentence from the GSR that had been calculated. On the contrary, it appears that the sentencing court may well have “used the GSR as an anchoring point” to reach its 216–month sentence. Ortiz, 741 F.3d at 294. While the court viewed Hudson's conduct as reprehensible and noted his extensive criminal history, it nonetheless chose a sentence well within the incorrectly calculated GSR.
Finding no clear contrary expression in the record, the “district court's evident intent to sentence” Hudson to a within-guidelines sentence is an insufficient basis to “demonstrate that the district court's failure” to calculate correctly the “sentencing range did not affect the sentence it imposed.” United States v. Tavares, 705 F.3d 4, 27–28 (1st Cir.2013). With a correctly calculated GSR “there is at least a reasonable likelihood that the [district court] would have landed on” a shorter sentence, and “[n]othing in this record provides any indication clear enough to overbear the probative force of this logical presumption.” Marchena–Silvestre, 802 F.3d at 202.
Hudson's convictions for possession with intent to distribute and assault with a dangerous weapon qualify as predicates under the Armed Career Criminal Act, but we vacate his guidelines sentence for the reasons stated above. Accordingly, the judgment of the district court is affirmed in part, vacated in part, and remanded for resentencing consistent with this opinion.
1. Because Hudson pled guilty, we recite the facts as drawn from the pre-sentence investigation report (“PSR”), change-of-plea hearing, and sentencing transcript. See, e.g. United States v. Rossignol, 780 F.3d 475, 476 (1st Cir.2015).
2. During the change-of-plea colloquy, Hudson admitted to these events sufficiently to support conviction, but he maintained that the shots were fired in the air and that there were no children around.
4. Hudson does not challenge the district court's inclusion of his prior conviction for assault to rob as a qualifying predicate offense under the ACCA.
5. Hudson's PSR specified that his possession with intent conviction was for a class B substance. See Mass. Gen. Laws ch. 94C, § 32A(a).
6. The government does not suggest that the statute of conviction is divisible, see Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 2293, 186 L.Ed.2d 438 (2013), and consequently that there is any need to examine so-called Shepard documents, see Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Accordingly, Hudson's claim will rise or fall on a categorical inquiry, rather than on the modified categorical approach.
7. Fish and Leocal dealt with the interpretation of 18 U.S.C. § 16. The Supreme Court has noted that section 16 is “very similar to § 924(e)(2)(B)(i).” Johnson I, 559 U.S. at 140. To the extent that Hudson relies on a section 16 analysis to inform his ACCA claim, we assume without deciding that a similar bridge can be built between the mens rea requirements of the two sections.
8. Hudson's claim that ADW lacks a sufficient mens rea requirement to qualify as a predicate offense is grounded in his assertion that ADW is a general intent crime in Massachusetts. That conclusion is based on a mistaken interpretation of dicta contained within our decision in Am. At one point, Am refers to ADW as a “general intent” crime, accompanied by a citation to Commonwealth v. Ford, 677 N.E.3d 1149, 1151 (Mass.1997). See Am, 564 F.3d at 34. Ford, however, dealt not with ADW, but with assault and battery by means of a dangerous weapon, ABDW. See Ford, 677 N.E.3d at 1151. To accept Hudson's reading of Am would be to ignore our reasoning in that case accompanying the “general intent” label. See Am, 564 F.3d at 33–34. Although ABDW may be committed recklessly, we made clear in Am that ADW cannot be, holding that “because the state ․ had to show Am acted intentionally, his conviction for [ADW] thus constituted a ‘crime of violence’ for purposes of career offender status.” Id. at 34 (emphasis added); cf. Commonwealth v. Jones, 6 Mass.App.Ct. 750, 383 N.E.2d 527, 533 n. 8 (Mass.1978) (holding that “assault and battery by means of a dangerous weapon is a crime requiring general intent.” (citing Commonwealth v. Randall, 70 Mass. 36, 4 Gray 36, 38–39 (Mass.1855))).
9. The government expressly eschews reliance on the career offender guideline's force clause, § 4B1.2(a)(1).
10. Ordinarily, to benefit from plain error review, an appellant must establish that “(1) an error occurred which was (2) clear or obvious and which not only (3) affected his substantial right but also (4) seriously impaired the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Savarese, 686 F.3d 1, 12 (1st Cir.2012).


If you are looking for information on accredited schools authorized by the Hawaii Post-Secondary Education Authorization Program (HPEAP), please see the HPEAP website.
For those considering continuing their education at an unaccredited school, you may want to download HPEAP’s “Choose Wisely” guide.
In the State of Hawaii, degree granting institutions fall into one of two categories: accredited or unaccredited. State law specifically defines an unaccredited institution as a “degree granting institution that is not accredited or a candidate for accreditation by at least one nationally recognized accrediting agency that is listed by the United States Secretary of Education.” Not all so-called accrediting agencies enjoy such recognition. The U.S. Department of Education’s Office of Post-Secondary Education provides a list of recognized accreditors and accredited institutions and information on accreditation online.
The Western Association of Schools and Colleges is the recognized regional accrediting association that accredits private schools, colleges and universities in the State of Hawaii. They provide a listing of the WASC institutions operating in or from Hawaii.
Private trade, vocational and technical schools are required to be licensed and are regulated by the State of Hawaii’s Department of Education (“HIDOE”). For further information on these types of schools, contact the HIDOE at ptvt@hawaiidoe.k12.hi.us or go to the HIDOE website on licensed vocational schools.
Unaccredited degree granting institutions which offer courses, programs, or degrees, or maintain a campus or an administrative, corporate, or other address in Hawaii are subject to Hawaii’s Unaccredited Degree Granting Institutions law, codified in Chapter 446E of the Hawaii Revised Statutes. The Office of Consumer Protection is the state agency responsible for enforcing Chapter 446E. Unlike many other states, Hawaii does not accredit, license or approve any unaccredited institutions.
§446E-1 defines various terms used within the law.
§446E-1.6 lists the types of schools and courses of instruction that are not subject to the law.
§446E-2(a) and (b) contain the requirement that unaccredited institutions must disclose their unaccredited status and the method for doing so. The section contains the exact text of the required disclosure and other information concerning it.
§446E-2(c) requires unaccredited institutions to keep records and to produce them to the Office of Consumer Protection upon request.
§446E-4 requires unaccredited institutions to designate and maintain an agent for service of process purposes and provides a mechanism for serving process upon them.
§446E-5 contains a list of prohibited practices. Unaccredited institutions cannot indicate or suggest that the State licenses, approves, or regulates its operations. They cannot offer or issue juris doctor, master of law, doctorate of medicine or equivalent degrees. Unaccredited institutions are prohibited from issuing any degrees unless they have a Hawaii office, a Hawaii resident employee and 25 enrolled students in Hawaii. Unaccredited institutions are prohibited from accepting tuition or other payments unless they are in complete compliance with all the provisions of Chapter 446E. Unaccredited institutions are prohibited from claiming that they have applied for future accreditation.
Violations of the provisions of Chapter 446E are deemed to be per se “unfair acts or practices.” Under Hawaii law, unfair acts or practices are subject to fines of not less than $500 nor more than $10,000 for each violation.
The Office of Consumer Protection has filed numerous lawsuits seeking to enforce the law. A list of the universities which have been sued, including the text of the lawsuits and judgments is now available.
Individual students or graduates also have the right under state law to file their own private lawsuits or class action suits against universities which they believe have violated Chapter 446E. In addition to Chapter 446E and like any private business, unaccredited degree granting institutions are also subject to the general business and consumer protection laws of the state.


text:
Interface Et. Al. v. Tandus Flooring Et. Al.
JSDQ Mesh Technologies v. Belair Networks et. al.
Blue Spike v. Zeitera et. al.
INTERFACE, INC. ; INTERFACE AMERICAS, INC.; INTERFACEFLOR LLC; and FLOR, INC., Plaintiffs, v. TANDUS FLOORING, INC. and TANDUS FLOORING US, LLC, Defendants.
existing under the laws of Georgia with its principal place of business at 2859 Paces Ferry Road, Suite 2000, Atlanta, Georgia 30339. Interface is the ultimate of the filing fee, moreover, clearly shows that the original Complaint was filed after midnight on February 26, 2013, in accordance with the Courts Electronic Filing of Case Initiating Documents Users Manual and CM/ECF tutorial on filing case initiating documents, as well case law holding that a patent issues just after midnight on the day of issuance. Electronic Filing of Case Initiating Documents Users Manual, p. 5 (filing is accomplished upon completion of steps that come after the payment of the filing fee through pay.gov); see Encore Wire Corp. v. Southwire Co., No. 3:10-cv-86-BMGL, 2011 WL 833220, at *4 (N.D. Ga. Mar. 4, 2011) (holding that a patent issued at midnight on the date of issuance). The original Complaint, however, was dated by the Courts computer February 25, 2013, and the Clerk has stated that a Court order will be necessary to correct the Court record to show filing on February 26, 2013. If a dispute as to standing, jurisdiction, or venue should arise, Interface reserves the right to rely on the time shown on the receipt from Pay.gov, in combination with the Courts User Manual, tutorial and sequence of screens presented to a filer of case-initiating documents, to dispute the filing date shown on the Notice of Electronic Filing. If the Court finds it appropriate that the Complaint electronically filed at either 12:03 a.m. or 12:04 a.m. on February 26, 2013 should be deemed filed on February 25, 2013, Interface respectfully requests that it be permitted to withdraw the original Complaint, and that this Complaint be deemed filed on February 26, 2013 at the earliest time filing was possible.
existing under the laws of the State of Delaware, with its principal place of business at 311 Smith Industrial Blvd., Dalton, GA 30721, and may be served through its registered agent, CT Corporation System, at 1201 Peachtree Street, N.E., Atlanta, GA 30361. Defendant Tandus Flooring US, LLC is in the business of manufacturing and/or selling floor covering products, including connectors for joining adjacent modular floor covering units, in interstate commerce and in this judicial district, and is a direct competitor of Interface.
problems. Glue gives off fumes that can affect indoor air quality. Before the glue goes on the floor, the entire underlying flooring surface must be cleared, cleaned, and prepared, and then after application it must be left undisturbed while the glue dries and cures.
to the underlying flooring surface.
offer for sale, and to sell connectors based on Interfaces TacTiles connectors.
For ease of reference, both TacTiles connectors and FlorDots connectors are herein referred to as TacTiles connectors.
ascertained, and has irreparably harmed, and continues irreparably to harm, Interface, including by usurping Interfaces sales and business opportunities, eroding Interfaces market share and prices, and damaging Interfaces reputation and goodwill.
irreparably harmed, and continues irreparably to harm, Interface.
has irreparably harmed and continues irreparably to harm Interface, and Tandus infringing activities will continue unless enjoined by this Court pursuant to 35 U.S.C. 283.
compensate Interface for damages caused by Tandus direct and indirect infringement of the Patent; F. 284; G. Award Interface its reasonable attorneys fees and litigation expenses, Treble the damages awarded to Interface, as provided by 35 U.S.C.
as provided by 35 U.S.C. 285; H. 284; and I. appropriate.
Award Interface prejudgment interest and costs pursuant to 35 U.S.C.
Respectfully submitted, this 26th day of February, 2013.
Documents Similar To Interface Et. Al. v. Tandus Flooring Et. Al.

matches: v. v. v. v. v. v.


text:
JOSIAH MILLARD, Appt., v. ELLIS H. ROBERTS, Treasurer of the United States; Henry B. F. Macfarland, Henry L. West, and John Biddle, Commissioners of the District of Columbia, et al.
Argued: and submitted April 18, 1906.
Mr. Josiah Millard in propria persona for appellant.
Solicitor General Hoyt, Edward H. Thomas, Wayne MacVeagh, Frederic D. McKenney, John Spalding Flannery, George E. Hamilton, and Michael J. Colbert for appellees.
An act entitled 'An Act to Provide for Eliminating Certain Grade Crossings of Railroads in the District of Columbia, to Require and Authorize the Construction of New Terminals and Tracks for the Baltimore & Ohio Railroad Company in the City of Washington, and for Other Purposes,' approved February 12, 1901; an act entitled 'An Act to Provide for Eliminating Certain Grade Crossings on the Line of the Baltimore & Potomac Railroad Company in the City of Washington, District of Columbia, and Requiring Said Company to Depress and Elevate its Tracks, and to Enable it to Relocate Parts of Its Railroad Therein, and for Other Purposes,' approved February 12, 1901; an act entitled 'An Act to Provide for a Union Railroad Station in the District of Columbia and for Other Purposes,' approved Rebruary 28, 1903. (31 Stat. at L. 767, 774, chaps. 353, 354; 32 Stat. at L. 909, chap. 856), and to enjoin the other defendants from carrying into effect said acts of Congress, and that said acts 'be declared null and void for want of constitutional authority.' Defendants interposed demurrers to the bill, which were sustained by the supreme court, and a decree entered dismissing the bill. The court of appeals affirmed the decree.
The principal allegations of the bill are that the railroad defendants are private corporations and all interested in the railway and terminal facilities of the District of Columbia; that the District of Columbia owns no stock in any of the companies nor is otherwise interested in any of them save as useful private enterprises, and yet it is required by said acts, 'without any lawful consideration therefor,' to pay the Baltimore & Potomac Railroad Company the sum of $750,000, and a like sum to the Baltimore & Ohio Railroad Company, 'to be levied and assessed upon the taxable property and privileges in the said District other than the property of the United States and the District of Columbia,' and for the exclusive use of said corporations respectively, 'which is a private use, and not a governmental use;' that the public moneys of the District of Columbia are raised chiefly by taxation on the lands therein, and that the complainant is obliged to pay and does pay direct taxes on land owned by him therein. And the bill also alleges that the acts of Congress are 'acts which provide for raising revenue, and are repugnant to article 1, § 7, clause 1, of the Constitution of the United States, and are, therefore, null and void ab initio, and to their entire extent, because they, and each and every one of them, originated in the Senate, and not in the House of Representatives.' Certain volumes of the Congressional Record are referred to and made part of the bill.
In other allegations of the bill are expressed the limitations upon the power of the United States and the District of Columbia as to taxation; that the acts of Congress complained of are repugnant to the Constitution of the United States; that public funds are appropriated for private use, and that exorbitant taxes will be required to meet the legitimate expenses of the District of Columbia, and appellant will thereby be oppressed and deprived of his property without due process of law.
This language is applicable to the acts of Congress in the case at bar. Whatever taxes are imposed are but means to the purposes provided by the act.
'The case is practically that of a contract between the United States and the District of Columbia on the one side and the railroad companies on the other, whereby the railroad companies agree to surrender certain rights, rights of property as well as other rights, and to construct a work of great magnitude, greater, perhaps, than their own needs require, but which Congress deems to be demanded for the best interest of the national capital and by the public at large; and for this surrender of right and this work of magnitude commensurate with the public demand, Congress agrees to pay a certain sum, partly out of the funds of the United States and partly out of the funds of the District of Columbia. It is a simple case of bargain and sale, like any other purchase.' 25 App. D. C. 221.
We have assumed that appellant, as a taxpayer of the District of Columbia, can raise the questions we have considered, but we do not wish to be understood as so deciding.
Mr. Justice Harlan concurs in the result only.
UNITED STATES, Appellant v. SPERRY CORPORATION et al.
UNITED STATES, Petitioner v. German MUNOZ-FLORES.
COMMONWEALTH OF MASSACHUSETTS v. MELLON, Secretary of the Treasury, et al. FROTHINGHAM v. SAME.

matches:
v.
§ 7
v.
v.
v.
v.


text:
Present: ARMSTRONG, C.J., GREENBERG, & RAPOZA, JJ.
COMPLAINT for divorce filed in the Essex Division of the Probate and Family Court Department on November 1, 1983.
A complaint for modification, filed on July 22, 1996, was heard by Edward J. Rockett, J. Allen C. B. Horsley for Karin Pearson.
William M. Levine (Marc J. Cooper with him) for Anthony E.P. Pearson.
GREENBERG, J. When the parties were divorced in 1985, their separation agreement, which was incorporated but not merged into their divorce judgment, provided that the former husband was to pay alimony to the former wife in the amount of $1,000 per month and child support for two children in the amount of $666 per month. The former wife also received a lump sum property settlement in the amount of $475,000 that was placed into an irrevocable trust, a portion of which was used by her for the purchase of a new home. The agreement further provided that the former husband pay all reasonable college expenses for the children "to the extent not otherwise provided for by any amounts paid or payable to the Minor Child by the Husband, his family or any other source." The former wife, who was given physical custody of the children, was responsible for routine medical and dental expenses, while the former husband was to pay for the children's medical insurance as well as any extraordinary medical costs.
The parties continued to reside in Massachusetts until, in 1986, the former wife obtained employment in New York and sought the Probate Court's permission to move the children there. As a result, the parties executed a modification to their separation agreement. One of its new terms acknowledged the former wife's motive to take the children to New York to further her career goals. The agreement also provided that any increased living expenses for her or the children occasioned by the move would become her sole responsibility. The modification agreement also amended that part of the parties' 1985 agreement pertaining to the children's education, and stated that costs not otherwise paid by the former husband, family, or another source "shall be borne by the parents with reasonable contribution from each party given their relative financial circumstances." A modified judgment, incorporating but not merging the modified separation agreement, entered in 1987.
Unfortunately, the former wife's prospects for a more independent life in New York soured. Although she sold her house at a $300,000 profit, she lost $50,000 in one ill-advised investment and reduced her work hours to spend more time with the children, both of whom had developed emotional problems. In the meantime, the former husband's assets increased substantially. As a result, the former wife filed a complaint for modification. After a trial in July, 1996, a judge of the Probate Court increased the total monthly child support payment that the former husband was to pay, from $666 to $2,817 [Note 1] The new judgment also included a general order requiring that the former husband pay the former wife's attorney's fees in the amount of $115,652.07.
In all other respects, the judge affirmed the 1987 modified judgment. It is apparent from his underlying findings of fact and conclusions of law that the judge considered inappropriate the former wife's principal demand for child support payments beyond the $2,817 monthly order. He wrote that "any additional monies granted to the plaintiff, in excess of the [$2,817.00 monthly] child support order[,] would essentially be utilized as alimony for the plaintiff [Note 2]."
The former wife has appealed, challenging the amount of child support as inadequate (including the judge's denial of her demand that her former husband pay the children's educational expenses from his own funds) and the judge's findings as contrary to the evidence and the law, and asserting that he failed to fashion an award consistent with the needs of the children and the resources of the parties. For his part, the former husband cross-appeals, but disputes only the judge's award of counsel fees to his former wife.
It is undisputed that the former husband's income derives primarily from inherited wealth placed in trust by his parents and other relatives. These assets have substantially increased in value over the ten years from the entry of the 1987 modified judgment to the November, 1997, trial on the complaint for modification [Note 3]. The former husband has the ability to pay greater sums for child support, should the law require him to do so. The former wife argues on appeal that the judge considered neither the former husband's existing assets nor his ability to control the amount of income he draws from the trusts established for his benefit. Because the former husband does not challenge the modification, we assume (without deciding) the standards for modification were met, and do not reach the question of how much deference should have been accorded to the parties' child support agreement. The narrow question before us is whether the judge erred with respect to the amount of child support ordered.
The statute governing support modification requires an analysis of both the changed circumstances of the parties and the best interests of the children. See G. L. c. 208, s. 28. When setting an amount of support, judges are granted discretion to award sums beyond the guideline amount where, as here, one or both of the parents exceed certain income levels. See Massachusetts Child Support Guidelines 11-C (effective January 1, 1994) (requiring noncustodial parent to pay a "minimum presumptive level of support" based on a $75,000 annual income when his or her income exceeds that amount) [Note 4]. Where a noncustodial parent's income level exceeds the children's basic needs, the minimum amount provided in the guidelines is presumptively correct, and the court may deviate upwards in the amount warranted by the circumstances. See J.C. v. E.M., 36 Mass. App. Ct. 446 , 450 & n.6 (1994) (affirming support award meeting child's needs and exceeding what it would have been at $75,000 guideline level). See also Quinn v. Quinn, 49 Mass. App. Ct. 144 , 148 (2000) (rebuttable presumption exists that child support guidelines are appropriate).
Some States considering the question of gross disparity of income have applied an "income-sharing" method that is designed to maintain the pre-divorce standard of living of the children after an intact family splits into two households. See White v. Marciano, 190 Cal. App. 3d 1026, 1031-1032 (1987); Galbis v. Nadal, 626 A.2d 26, 31 (D.C. 1993); Zak v. Zak, 629 So. 2d 187, 188-189 (Fla. Dist. Ct. App. 1993); Boyt v. Romanow, 664 So. 2d 995, 996-999 (Fla. Dist. Ct. App. 1995); Pratt v. McCullough, 100 Ohio App. 3d 479, 481-482 (1995); Branch v. Jackson, 427 Pa. Super. 417, 419-420 (1993) [Note 5]. In this case, a pure income-sharing approach is problematic because it does not account for the noncustodial parent whose income far exceeds any reasonable needs the child might have. See Baron, Comment, The Many Faces of Child Support Modification, 16 J. Am. Acad. Matrimonial Law. 259, 260 (1999). Courts have generally rejected pure income-sharing because this approach may constructively distribute the noncustodial parent's estate, provide a windfall to the child and custodial spouse, and infringe upon the noncustodial parent's right to direct the lifestyle of his or her children. See Morgan, Child Support and the Anomalous Cases of the High-Income and Low-Income Parent: The Need to Reconsider What Constitutes "Support" in the American and Canadian Child Support Guideline Models, 13 Can. J. Fam. L. 161, 192-196 (1996) (collecting cases) [Note 6]. Most of our cases involving modification requests contemplate a deterioration in the economic situation of the more dependent spouse, such that the former spouse and children have become impoverished and may require public assistance. See McCarthy v. McCarthy, 36 Mass. App. Ct. 490 , 493-494 (1994). See also G. L. c. 119A, s. 1, as amended by St. 1987, c. 490, s. 13 (noting the "public policy of the commonwealth that dependent children shall be maintained, as completely as possible, from the resources of their parents, thereby relieving or avoiding, at least in part, the burden home by the citizens of the commonwealth") [Note 7]. Here, nothing in the record shows that the children lacked anything money can buy. For example, the former husband purchased the daughter a car, paid for the son's music camp tuition, and gave the children expensive gifts, as well as paid for them to travel abroad.
As to the former wife's doubtfully relevant claim that the children - ages twenty and seventeen at the time of the trial were physically and emotionally abused by their father, the record contains vividly contrasting versions of what happened and why. Doctor Paul R. Duffly, a psychologist appointed by the court with consent of the parties, found, based on interviews with the children, that postdivorce conflict between the parents has contributed to the children's deteriorating emotional states. In any event, adequate provisions exist under the agreement to cover the children's pre-emancipation needs for psychotherapy [Note 8]. The judge found that, in addition to maintaining health insurance for both children, the father paid for their therapy and other uninsured health care expenses. No trust instrument or security is warranted. Contrast Passemato v. Passemato, 427 Mass. 52 , 54-57 (1998). Furthermore, when the children reached the age of twenty-one, each received over $100,000 from trusts, described below, established by the former husband.
The judge was correct to reject the former wife's request that the children's educational expenses be paid from the defendant's personal funds, and not the Uniform Gift to Minors Act (UGMA) accounts that the former husband funded before and after the divorce. The former wife's argument, posited for the first time on appeal, that the former husband should also replenish funds already taken for this purpose from these trusts in the children's names, makes little sense. He established these vehicles (UGMA trusts) to make funds available to the children for tuition and related living costs for higher education. The former wife cites no case law to support her demand that he pay these expenses entirely out of his own personal funds. To be sure, college expenses may be a support obligation as regards a child under the age of twenty-three and domiciled with the parent upon whom the child is principally dependent. See G.L. c. 208, s. 28. As we have observed, however, the panics' agreement adequately provides for the children's educational expenses to be met, and the former wife has not shown that the children's interests require something more.
Although the relative economic circumstances of the parties, if we examine the figures set out in the judge's findings, have changed significantly, the judge fashioned an award that allowed the wife and children to continue to meet their reasonable expenses. The size of the trusts created for the children's benefit, coupled with the judge's findings concerning the former wife's refusal to work and the depletion of her finances, suggest that the judge was satisfied that his order - which nearly quadrupled the support payment - provided adequate financial resources for the children [Note 9]. Even so, the former wife contends that the judge wrongly attributed income to her for work that she voluntarily eschewed to attend to her emotionally troubled children [Note 10]. Our cases hold otherwise. See Williams v. Massa, 431 Mass. 619 , 632 n.12 (2000) (a spouse's election to stay home "does not automatically entitle that party, in the absence of credible evidence, to be credited with contributions to the home and child care") [Note 11]. See also Canning v. Juskalian, 33 Mass. App. Ct. 202 , 206-207 (1992) (discussing the principle that earning capacity of a parent rather than actual income may be considered in determining child support orders); Child Support Guidelines II-H (allowing court to attribute potential as well as actual earnings to one or both parents).
Last, we turn to the former husband's cross appeal of the judge's award to the former wife of her attorney's fees. The former husband argues, and we agree, that the judge's $115,652.07 fee award was surprising given the judge's observation that part of the former wife's case was "unwarranted and without legal merit, and consequently should not be rewarded through the imposition of fees [Note 12]." The judge's rationale in making the award was that the former wife "does not have the ability to pay, nor should she be responsible for her attorney's fees." This, in itself, does not justify the imposition of an award against the former husband. The former wife, however, did succeed in quadrupling the support obligation, and raised the novel issue whether Massachusetts courts must use an income-sharing rationale for modifying agreements fixing child support. Cf. Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998) (holding that purpose of sanctions is not to deter novel legal arguments or cases of first impression). While the negative effect of the parties' lawsuit on their children is regrettable, as is the former wife's attempt to further complicate an already contentious support action by bootstrapping tort allegations against her exhusband, we disagree that the former wife's attempt to increase what she believes to be her children's share of her former husband's wealth was entirely "unwarranted."
We defer to the judge's decision to award the former wife her attorney's fees but find fault with his method of calculation. The judge set the $115,652.07 award (reduced from the $162,571.57 the former wife sought) admitting that the calculation was done "without much thought and for simplicity's sake, as an amount equal to the fees of the defendant's attorney." While matching the opposing counsel's bill has a certain appeal, assessment of counsel fees requires an application of relevant factors. See, e.g., Fontaine v. Ebtec Corp., 415 Mass. 309 , 325 (1993). We remand for the limited purpose of reassessing the former wife's reasonable attorney's fees.
As both parties have lost their appeals, and in the hopes of deterring them from further litigation, we deny their requests for counsel fees associated with this appeal.
For the reasons stated above, we affirm the portion of the judgment pertaining to child support and vacate so much of the judgment as sets at $115,652.07 the amount of the award of attorney's fees. The case is remanded for further proceedings consistent with this opinion.
[Note 1] The amount expressed in the newly modified judgment was $650 per week. We have stated a monthly amount for comparative purposes, by multiplying the weekly figure by fifty-two and dividing the result by twelve. We also note that this amount is exclusive of amounts to be paid by the husband for medical insurance and uninsured medical expenses.
[Note 2] In addition to seeking increased child support, the former wife had sought to increase the husband's alimony obligations in a second amended complaint for modification. Before trial, however, the former wife dismissed this demand. The judge found that the alimony provisions of the agreement survived, and in a discovery ruling ordered that "there shall be no redistribution of the marital assets. "
[Note 3] When the former husband turned eighteen, a trust was established by his parents to hold an inheritance for him. While "irrevocable," the trust reserves to him the right to amend, or to revoke, the trust in whole or in part, subject to approval by the two trustees, Citibank of New York and James Cherry, an attorney. As set forth in his financial statement of November 26, 1997, since 1984 the former husband has received annual distributions from the trust of $89,000, of which $20,000 annually has been paid directly by the trustees to satisfy his alimony and child support obligations. In addition, he received $32,907 annually as the sole income beneficiary of another family trust created by his late uncle. His children are the sole remainder beneficiaries of this trust. The rest of his $169,587 in gross annual income was from various sources, including distributions from his mother's estate. The primary trust set up by his parents increased in value by 350 per cent between 1984 and November, 1997, from $1,324,000 to $4,739,400. As of the trial, his assets consisted of $6,200,000 in cash and securities, about $508,000 in assessed value of unencumbered real estate, and $155,000 in assorted personal property, for total assets of not less than $6,850,000.
The trial judge, in his findings, noted that with the increased support payments, the financial resources of the wife and children totaled $104,388.00 on an annual basis.
[Note 4] These guidelines are not meant to apply where the combined gross income of the parties exceeds $100,000 or where the gross income of the non-custodial parent exceeds $75,000. In cases where income exceeds these limits, the court should consider the award of support at the $75,000/$100,000 level as a minimum presumptive level of support to be awarded. Additional amounts of child support may be awarded at the judge's discretion." Massachusetts Child Support Guidelines 11-C (effective January 1, 1994).
[Note 5] We acknowledge the helpful amicus brief of the Women's Bar Association, collecting these decisions.
[Note 6] Dubbed in literature the "Three Pony Rule" (i.e., no child needs three ponies), the doctrine has earned cachet. See Morgan, supra at 198 n.69. Cf. Coleman v. Coleman, 648 So. 2d 605, 606-607 (Ala. Civ. App. 1994) (upholding an award exceeding the statutory presumptive level where it correlated with the reasonable and necessary needs of the children); Voishan v. Palma, 327 Md. 318, 322-324 (1992) (upholding an award exceeding the statutory presumptive level where the court determined the reasonable needs of the child and then calculated each parent's proportionate share). Compare In re Marriage of Upson, 991 P.2d 341, 344-345 (Colo. Ct. App. 1999) (remanding for findings on the children's needs because the court could not deviate upwards from the statutory presumptive level solely on the basis of the parties' gross economic disparity).
[Note 7] The only precedent cited by the former wife to support her income-sharing argument is Redding v. Redding, 398 Mass. 102 , 110 (1986) ("children are entitled to adequate support and maintenance reasonably within the power of both parents to furnish it"). Here, the judge made extensive findings of fact and law supporting his determination of what constituted "adequate" support and maintenance for the children. While Redding stated in dictum that "[t]here is some ground for the view that the noncustodial parent's child support contribution might best be related to a percentage of his or her income so that the child may benefit from that parent's financial success," id. at 110 n.6, we are not convinced that any precedent in Massachusetts has actually applied this standard.
[Note 8] As to the former wife's argument that the support award fails to cover the children's (anticipated) post-emancipation therapy expenses, it appears that whatever remedy she might have in the future would be not by support modification under G. L. c. 208, s. 28, but by way of the court's general equity powers under G. L. c. 215, s.s. 3, 6, authorizing entry of orders for persons under guardianship. See Feinberg v. Diamant, 378 Mass. 131 , 134 (1979) (an action in equity may require a financially able divorced parent to contribute to a mentally infirm adult child's support).
[Note 9] While noting that the child support guidelines were inapplicable because the husband's annual income exceeded $75,000, the court based its determination on the minimum presumption for the $75,000 level, then in its discretion added approximately fifty per cent. The judge found that this amount was adequate to meet the children's increased reasonable expenses, and that anything more would represent an increase in the former wife's alimony.
The judge laid out his calculation as follows. He first noted that the former husband's annual income exceeded $75,000 and was therefore above the maximum range of the child support guidelines. He therefore set as a starting point, as required by the guidelines, a presumptive minimum amount of support for the $75,000 level. This amount was determined by multiplying the former husband's weekly income ($1,442) by 30 per cent (yielding $433 per week) and adding a discretionary 15 percent of the result (i.e., $64.95 per week) to account for the ages of the children (17 and 20), for a total of $497.95 per week. In arriving at the presumptive minimum support figure, the judge did not, as he might have done, reduce the amount by accounting for income attributable to the former wife ($699 per week, excluding $231 per week in alimony), sec Child Support Guidelines II-H, or costs of medical insurance and uninsured medical expenses (including psychotherapy) paid by the former husband (an approximate $653 per week), see Child Support Guidelines II-G.
To the presumptive minimum, the judge in his discretion added another $152.05 (about 30 per cent of the $497.95 minimum) to arrive at the final figure of $650 weekly. It was at this point that the judge appears to have factored in the aforementioned income of the former wife and medical expenses paid by the former husband. The judge also made a finding, supported by the evidence, that the reasonable needs of the children did not exceed $325 per week.
[Note 10] Although the former wife's actual earned annual income was $6,500 based on working one day per week, the judge attributed an additional $26,000 in earning capacity based on her trial testimony that work was available to her on a full-time basis.
[Note 11] The judge did not find credible the former wife's argument (echoed by the Women's Bar Association in its amicus brief) that she should be credited financially for her necessary decision to stay home with her psychologically fragile children. Further, during the period in question, the former wife took a trip to Ireland by herself for ten days, while her daughter traveled on her own to Australia for three weeks.
[Note 12] The judge spared no ink in faulting the former wife and her attorneys for their inordinate expenditures and overly complex trial strategy. The judge found that the former wife was poorly advised by her attorneys, whose actions "were clearly adverse to the interests of [their] client." The judge also called the former wife's discovery strategy "a fishing expedition," and noted that her counsel fees exceeded the total amount of increased child support by over $60,000. The judge also found that the former wife's plea for child support, brought just before the children reached the age of emancipation, was a "deceptive attempt" to revise the binding alimony agreement.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


County of Ventura, a political subdivision of the State of California; Does, 1-25, Defendants-Appellees.
Matthew D. Hinks (argued) and Benjamin M. Reznik, Jeffer Mangels Butler & Mitchell LLP, Los Angeles, California, for Plaintiffs-Appellants.
Ronda J. McKaig (argued), Assistant County Counsel; Leroy Smith, County Counsel; County of Ventura County Counsel, Ventura, California; for Defendants-Appellees.
Before: DIANA GRIBBON MOTZ, [*] MILAN D. SMITH, JR., and JACQUELINE H. NGUYEN, Circuit Judges.
The panel reversed the district court's dismissal of appellants' First Amendment claim, affirmed the dismissal of appellants' Religious Land Use and Institutionalized Persons Act claim, vacated the denial of a preliminary injunction and remanded in an action challenging the County of Ventura's permitting scheme, which requires individuals to obtain a Conditional Use Permit to host weddings on their properties.
Applying Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012), the panel first held that appellants functioned as wedding "vendors" because they sought to profit from facilitating and providing a commercial space for weddings. The panel held that because they were wedding vendors, they may suffer economic injury as a result of the permitting scheme, and an injunction may redress this harm. Thus, the panel held that appellants had Article III standing to bring their First Amendment challenge.
The panel reversed the dismissal of appellants' First Amendment claim, holding that the permitting scheme lacked definite and objective standards and also failed to provide any limitation on the time period within which a permit must be approved. Together, these defects conferred unbridled discretion on permitting officials. The panel affirmed the dismissal of appellants' equal treatment claim under the Religious Land Use and Institutionalized Persons Act because appellants did not assert that they were a religious institution or assembly. The panel vacated the district court's denial of appellants' motion for a preliminary injunction as to the First Amendment claim because the motion was no longer moot, and remanded to the district court for its consideration in the first instance.
Epona, LLC and Michael Fowler (collectively, Appellants) appeal the district court's order dismissing Appellants' First Amendment and Religious Land Use and Institutionalized Persons (RLUIPA), 42 U.S.C. § 2000cc et seq., claims, and denying as moot Appellants' motion for a preliminary injunction. Appellants challenge the County of Ventura's (the County) permitting scheme, which requires individuals to obtain a Conditional Use Permit (CUP) to host weddings on their properties.
We reverse the dismissal of Appellants' First Amendment claim because the permitting scheme vests permitting officials with unbridled discretion. We affirm the dismissal of Appellants' equal treatment claim under RLUIPA because neither Appellant is a religious institution or assembly. We vacate the district court's denial of Appellants' motion for a preliminary injunction, and remand to the district court for its consideration in the first instance because the motion is no longer moot.
Michael Fowler is Epona, LLC's sole member, and owns a 40-acre parcel of land (the property) in Ventura County. The property is zoned for agricultural use, and neighboring properties either are agricultural, or are designated as open spaces. Fowler created a garden area on the property, which he hoped to rent out for use in wedding ceremonies and related events.
The County's Non-Coastal Zoning Ordinance (NCZO) describes permissible land uses in specific zones. NCZO § 8105-4. Outdoor weddings are classified as "temporary outdoor" events under NCZO § 8102-0, which encompasses "[o]utdoor recreational events such as harvest festivals, amusement rides, historic re-enactments, animal events, art shows, concerts, craft fairs, weddings, and religious revival meetings." In order to hold a temporary outdoor event on an agriculturally zoned property, the landowner must apply for and receive a CUP.
The NCZO provides for issuance of a CUP when certain standards are satisfied, or where "such conditions and limitations, including time limits, as the decision-making authority deems necessary, are imposed to allow the standards to be met." Id. § 8111-1.2.1.1. At the time Appellants applied for a CUP, the NCZO stated that a permit "may" issue if the applicant meets these standards, and required the permitting official to make "[s]pecific factual findings" that each standard "can be satisfied." After the initiation of this litigation, the County amended the CUP scheme to provide that a permit "shall" issue if the relevant standards have been satisfied, and to require specific factual findings in support of an application denial. Id. Under both schemes, the applicant bears the burden of proving that all of the relevant standards can be met.
Appellants' CUP application sought permission to use the property for up to 60 temporary outdoor events per year, including weddings. County agencies reviewed the application, and found there were no grounds for denying the permit.
Appellants appealed the denial of their CUP application to the Board of Supervisors. Contrary to its recommendation in the previous report, this time the Commission staff prepared a report that recommended denial of the CUP application. The Board split its vote evenly on the application, which had the effect of affirming the Commission's denial.
Appellants filed a complaint in federal district court on August 24, 2016, followed by an amended complaint on October 7, 2016, both of which alleged (1) abridgment of free speech in violation of the First Amendment and California Constitution Article 1, § 2; (2) violation of RLUIPA; (3) denial of equal protection under the United States and California Constitutions; (4) civil rights violations pursuant to 42 U.S.C. § 1983; (5) entitlement to a writ of mandate pursuant to California Code of Civil Procedure § 1094.5; and (6) a request for declaratory relief. Appellants also filed a motion for preliminary injunctive relief on November 4, 2016, seeking to enjoin enforcement of the amended CUP scheme. The County filed a motion to dismiss for failure to state a claim the same day.
The district court granted the County's motion to dismiss and denied Appellants' motion for a preliminary injunction. The district court held that Appellants could only challenge the CUP scheme as applied, and thus dismissed their facial challenge to the amended CUP scheme without leave to amend. The court then dismissed, with leave to amend, Appellants' as-applied challenge for failing to plausibly allege that the CUP was improperly denied based on content. It further held that the CUP scheme did not grant unbridled discretion to permitting officials, and did not require time limits within which the County must act on a permit application because the scheme is content neutral. The court similarly dismissed Appellants' equal protection claims. The district court also found that Appellants had not shown either a substantial burden on religious exercise or unequal treatment as a religious assembly or institution under RLUIPA. Finally, the district court denied Appellants' motion for a preliminary injunction as moot because it had dismissed the entire amended complaint. Appellants timely appealed.


text:
NOTE: As of June 26, 2018, I am no longer updating the list of cases in this post.
Yet decisions endorsing Trulia appear to be less common than approvals of disclosure settlements. To provide some context for the ongoing discussion of post-Trulia mergers and acquisitions litigation, I thought it might be helpful to provide a list of cases where disclosure settlements have been approved, along with the awards granted to plaintiffs’ attorneys. I have broken the cases down by state, with federal and state cases in the same chart. The list includes cases brought under federal securities laws, but only includes disclosure settlements (as the term is used in Trulia), not awards of mootness fees.
Some caveats to the data. As I have mentioned before, many orders from state trial courts are not easily available online. The list is limited to cases of which I am aware. Likewise, I have only included cases in which I have been able to acquire a copy of a decision or order approving settlement. Thus, this page almost certainly undercounts the number of approved settlements. (If you are aware of a post-Trulia case approving a disclosure settlement not listed here, please feel free to contact me.) As I add cases, I will keep a changelog at the bottom of this page.
And of course, the standard disclaimers: while I make every effort to ensure the accuracy of information on this site, I can make no guarantees regarding the data below or be certain that changes have not occurred after publication. Content is provided for informational and educational purposes only, and is not a substitute for legal advice in specific situations. As always, the disclaimer page applies.
†Indicates Margrave Law involvement in case.
January 23, 2017: Added In re Audience, Inc. S’holder Litig., Lead Case No. 1-15-cv-280778 (Ca. Super. Ct.—Santa Clara Cty.); In re Thoratec Corp. Shareholder Litigation, Lead Case No. RG15779109 (Ca. Super. Ct.—Alameda Cty.); Sloan v. Rentech Nitrogen Partners, LP, Case No. 2:15-cv-07818-GW-MRW (C.D. Cal.); Douglas v. Witney, Case No. 3:16-cv-00921-WHO (N.D. Cal.); Marino v. Harkey, 2016 WL 7451319 (Cal. App. 4th 2016); Jeter v. Spansion Inc., Case No. 2014-1-CV-274635 (Ca. Super. Ct.—Santa Clara Cty.); In re Home Properties, Inc. Shareholders Litigation, Consol. Case No. 24-C-15-3707 (Md. Cir. Ct.—Baltimore Cty.); Murphy v. Synergetics USA Inc., Case No. 1511-CC00778 (Mo. Cit. Ct.); In re Newbridge Bancorp Shareholder Litigation, 2016 WL 6885882 (N.C. Super. Ct.); In re Susquehanna Bancshares Inc. Stockholder Litigation, Lead Case No. CI-14-10817 (Penn. Ct. Cm. Pls.—Lancaster Cty.); and Aron v. Crestwood Midstream Partners LP, Case No. 4:15-CV-01367 (S.D. Tex.).
February 1, 2017: Added Stein v. StanCorp Financial Group, Inc., Case No. 15CV20372 (Or. Cir. Ct.–Multnomah Cty.).
March 23, 2017: Added Bushansky v. The Phoenix Companies, Inc., et al., No. FST-CV-15-6027891-S (Conn. Super. Ct.); In re Broadcom Corp. S’holder Litig., Lead Case No. SA 15-CV-00979 JVS (PJWx) (C.D. Cal.).
June 2, 2017: Added In re The Chubb Corp. Shareholder Litigation, Docket No. C-012040-15 (N.J. Super. Ct–Somerset Cty.).
July 23, 2017: Added Stein v. Symetra Financial Corp., et al., No. 15-2-20458-1-SEA (Wash. Super. Ct. — King Cty.).
July 29, 2017: Added In re XenoPort, Inc. S’holder Litig., Lead Case No. CIV 539069 (Ca. Super. Ct.–San Mateo Cty.).
September 20, 2017: Added In re Journal Media Group, Inc. S’holder Litig., Case No. 15-CV-9686 (Wi. Cir. Ct.–Milwaukee Cty.).
December 18, 2017: Added Gordon v. Verizon Commc’ns, Inc., Index No. 653084/2013 (N.Y. Supr. Ct.).

matches: v. v. v. v. v. v. v. v. v. v.


text:
Appeal from Superior Court of Riverside County, No. I-36419, John P. Carroll, Judge.
Richard L. Knickerbocker and J.K. Moran for Plaintiff, Cross-defendant and Appellant.
William J. Adams, City Attorney, and Siegfried H. Siefkes, Assistant City Attorney, for Defendants, Cross-complainants and Respondents.
The Amusing Sandwich (plaintiff) is a video game and fast food operation, which claims to be "THE ONLY VIDEO ARCADE IN DOWNTOWN PALM SPRINGS." The action in the trial court was brought by plaintiff against the City of Palm Springs (City), seeking an injunction to prevent the enforcement of a City interim ordinance prohibiting the installation of any video games in City's central business district (CBD). City filed a cross-complaint, claiming that plaintiff's violation of the ordinance was a nuisance per se and should be abated. While the action was pending, the interim ordinance was replaced by a permanent ordinance, one which limited installation of video games in the CBD to four games or less in any one commercial facility.
After trial to the court, sitting without a jury, on a stipulated set of facts, judgment was entered for City and against plaintiff on all counts, and plaintiff was permanently enjoined from maintaining more than four video games on its premises.
Plaintiff appealed, contending: (1) the applicable ordinances (see infra) violate plaintiff's equal protection rights; (2) the ordinances violate plaintiff's due process rights; (3) a City planning commission resolution on video games (see infra) constituted an improper delegation of authority by the City to the planning commission; (4) the applicable ordinances are unconstitutionally vague; (5) a certificate of occupancy which City issued to plaintiff was improper; (6) the trial court erred in granting the injunction, because plaintiff's use of its property did not constitute a nuisance; (7) plaintiff has a vested right to operate 25 video games on its premises; and (8) City is estopped from preventing plaintiff's operation of the games.
The operative events occurred in the six-month period from July through December of 1982.
On July 6, plaintiff's president, plaintiff's attorney and a third representative of plaintiff told City's planning director that plaintiff intended to establish a sandwich shop with 25 video games at 160 East Andreas in City's CBD. The director advised them that such an operation would be contrary to City's zoning ordinance; that video games could be placed on the premises only as an accessory use, and that, under "long-standing" City policy, the accessory use of electronic games was limited to four games or less. Plaintiff's attorney (who had previously been the assistant city attorney) challenged the validity of City's policy on electronic games. The director said he would ask the planning commission to adopt a resolution of record on the subject.
On July 13, City issued to plaintiff a "BUSINESS LICENSE TAX RECEIPT" which provides in part that "Issuance hereof does not entitle the licensee to operate or maintain a business in violation of any other law or ordinance." At that time, sections 9229.01 and 9229.02 of City's zoning ordinance provided that pinball machines, shooting galleries and electronic games were not permitted as primary uses in the CBD, and that billiard parlors, bowling alleys, ice skating rinks, miniature golf courses and tennis courts were permitted in the CBD only by reason of a conditional use permit. As noted, existing City policy as to electronic games had been to permit four machines per location as an accessory use.
On July 14, City's planning commission adopted resolution No. 3445. The resolution provided in relevant part: "WHEREAS The Planning Commission has reviewed the policy of [City] staff in effect for some seven years and finds that policy to be reasonable and consistent and should be formalized; [¶] NOW THEREFORE BE IT RESOLVED that the Planning Commission does hereby approve a Resolution of Record determining that an accessory or secondary use for electronic game machines is four machines or less, and that the definition of a primary use is five machines or greater."
On August 13, City issued a building permit to plaintiff for "Tenant improvement for hot dog and sandwich shop."
On September 23, City issued a certificate of occupancy to plaintiff. The certificate recites in relevant part: "NOTE: This Certificate of Occupancy is subject to the condition that no video or electronic games shall be placed on these premises." Salvatore Cavallaro, one of the owners of plaintiff, refused to accept the certificate.
According to a memo in the record, all certificates of occupancy in the CBD were to be subject to the same condition, pending the enactment of a permanent video arcade ordinance.
On September 27, plaintiff's attorney was advised that an interim ordinance which would prohibit the installation of video games within City for a period of four months would be presented to the city council for action on the afternoon of September 28.
On either September 27 or the morning of September 28, plaintiff installed 25 video games on its premises. Many of the games can be played by two or more players. The restaurant portion of plaintiff's premises contains two tables with two chairs each, and two counters, each with a single bar stool.
On the afternoon of September 28, the city council enacted an interim ordinance (ordinance No. 1165) prohibiting the installation of video games within City.
On October 5, plaintiff filed its complaint, supra, for injunctive relief.
On October 12, City filed its cross-complaint, supra.
On November 3, injunctive relief pending trial was granted to plaintiff and denied to City.
On November 17, the city council enacted an ordinance regulating video arcades (ordinance No. 1166). The ordinance provides that video games are permitted in the CBD as primary or secondary uses (five machines or more) only in conjunction with resort hotels, and otherwise only as accessory uses (four machines or less).
"A. DEFINITIONS . . . 1. Video-amusement machine shall mean any machine, device, or game . . . which . . . by paying therefore [ sic] in advance or after use permits a person/persons to use the device as a game, contest of skill, or amusement . . . It shall include, but not be limited to, such devices as electronic or mechanic game machines, pinball machines, skillball, bowling machines, or any other mechanical or electronic or operation similar thereto under whatever name they may be indicated. . . .
"2. Primary and secondary uses shall mean any location where five (5) or more video-amusement machines are placed on a premise.
"3. Accessory use shall mean any location where four (4) or less video-amusement machines are placed on a premise. "B. VIDEO-AMUSEMENT ARCADES AS A PRIMARY OR SECONDARY USE . . . Video-amusement arcades as a primary or secondary use shall be permitted in C-D-N, C-1, C-2, CSC and O zones subject to the requirements of a conditional use permit. Video-amusement arcades as a secondary use shall be permitted in conjunction with resort hotels in R-2, R-3, R-4, R-4VP, CBD and CIAA Zones subject to the approval of a conditional use permit. . . .
"C. VIDEO-AMUSEMENT MACHINES AS AN ACCESSORY USE . . . Video-amusement machines as an accessory use to a conforming, established use shall be permitted in all commercial and industrial zones, hotels, and private and public clubhouses except as provided herein. Accessory uses shall be approved in writing by the Community Development Director or his designee prior to the issuance of a business license. . . .
On December 17, ordinance No. 1166 became effective.
On December 7, 1983, plaintiff's complaint and City's cross-complaint proceeded to trial.
In its statement of decision, the court ruled that: (1) all the applicable municipal codes and ordinances were constitutional; (2) the planning commission Resolution No. 3445, supra, was properly adopted; (3) the certificate of occupancy was proper; (4) plaintiff's use of its premises constituted a public nuisance; (5) plaintiff did not have a vested right to operate 25 video games on its premises; and (6) City had made no prior representation to plaintiff that City would approve the use of more than four games on plaintiff's premises.
(1a) Plaintiff's equal protection claim is that sections 9229.01 and 9229.02 of City's zoning ordinance, supra, and ordinance No. 1166, supra (the Ordinances), treat video games differently from billiards, bowling, skating, miniature golf and tennis, "without a scintilla of evidence that there is a basis for difference in treatment." In support of this claim, plaintiff relies principally on Cossack v. City of Los Angeles (1974) 11 Cal.3d 726 [ 114 Cal.Rptr. 460, 523 P.2d 260].
In this case, however, the distinction made is not between particular games within a class, as in Looff, and (presumably) in Cossack, but between one class of games (electronic games) and another demonstrably different class or classes of games (billiards, bowling, ice skating, miniature golf and tennis).
Moreover, the invalid ordinance in Cossack was prohibitory, and the ordinances here are merely regulatory, and the invalid distinction in Looff was between regulation and nonregulation, while the distinction here is merely between two types of regulations (accessory use versus the requirement of a conditional use permit). Parenthetically, in regard to the regulations here, we note that the accessory use regulation as to video arcades may not be materially different from the conditional use regulations as to the other games. Section 9402.00, which relates to conditional use permits, requires "special consideration in a particular zone . . . to . . . the unusual traffic, noise . . . or to the effect that such uses may have on property values, health, safety, and welfare in the neighborhood or in the community as a whole."
(1b) In light of the foregoing authorities, the evidentiary record here includes a May 1982 report by the planning division of City's department of community development (the Report). The Report refers to a "national concern" that video arcades are creating social problems such as juvenile delinquency, noise, pedestrian and traffic interference, and security problems for law enforcement officers. As to the local scene, the Report recites that existing City staff policy permits four video machines in a single commercial location as a secondary use; that Desert Hot Springs has a similar policy; that Indio requires a conditional use permit for three video machines or more in a commercial zone; that Palm Desert requires a conditional use permit for five video machines or more, and that not one of the outside communities noted has any major problems with video arcades.
On the basis of the Report, City could justifiably conclude that an increase in the existing use of four video machines per location in the CBD would threaten the safety, morals and general welfare of both the patrons of the district and the community at large.
In addition and more particularly, section 9229 of City's zoning ordinance provides in relevant part that the CBD "is intended to be a compact, lively, active, intensively used area catering to the pedestrian. . . . sitting, dining, conversing, gathering, and window shopping are permitted and encouraged." (Italics added.) Considering the known noise, traffic and security hazards posed by video arcades, City's refusal to increase the existing use of video machines in the CBD has a substantial relationship to its legitimate police power objectives for that area.
In view of all the above, plaintiff has not met its burden of demonstrating that the Ordinances are arbitrary or unreasonable.
(3a) Plaintiff contends that the Ordinances violate due process by depriving plaintiff of its property rights. This contention is without merit.
(3b) Plaintiff has failed, supra, to demonstrate that the ordinances are unreasonable, and cites no evidence that the legislation has deprived it of the economically viable use of its property.
(5a) Plaintiff contends that the planning commission's resolution No. 3445, supra, defining a secondary use of video games as four games or less, was an unconstitutional delegation of authority by the City because it resulted in the September 1982 issuance of the certificate of occupancy, supra, prohibiting plaintiff from installing any video games on its premises. Not so.
Plaintiff relies on: (1) People v. Perez (1963) 214 Cal.App.2d Supp. 881 [29 Cal.Rptr. 781], where a planning commission had virtually unlimited powers to grant or reject conditional use permits; (2) Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 [ 113 Cal.Rptr. 836, 522 P.2d 12], where a planning commission's granting of a variance was unsupported by substantial evidence; and (3) Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 183 [ 140 Cal.Rptr. 619], where a city's refusal to issue a building permit was based on a decision of its environmental assessment committee, rather than on any existing law, rule or ordinance.
Those cases are distinguishable, however, because the certificate here was issued by City and not by its planning commission, and because there is no evidence that City's decision to issue the certificate was in any way influenced by, much less based on, the planning commission's resolution No. 3445. Moreover, any defect in the issuance of the certificate was rendered moot by the judgment, which provided that the certificate would have no further force or effect.
(6a) Without citing any specific provisions thereof, plaintiff contends that "The Ordinance Restricting Accessory Uses [presumably Ordinance No. 1166] Was Void for Vagueness." This contention is specious.
(6b) Ordinance No. 1166 provides a detailed description of a video-game machine, specifies the maximum number of machines which may be installed in any one location in any particular zone, and provides additional, specific, requirements as to space, parking and advertising for the different zones. The ordinance is not vague.
If plaintiff is referring to the state of affairs before ordinance No. 1166 was enacted, there was uncontradicted evidence that existing City policy restricted accessory use of video games to four games or less. Plaintiff argues that "the declaration of David Kramer [plaintiff's president] establishes discriminatory enforcement." Not so. What the declaration does provide on the enforcement issue is that "some of the City's officials have said after I became committed to my project . . . that even though [video games] are accessory uses, if there are more than four they are not permitted." (Italics added.) In view of this statement, and in view of the fact that Kramer was one of the people who on July 6 was informed by City's planning director of the four or less limitation, plaintiff can hardly complain that it was not given "fair notice or warning" of that limitation. Plaintiff obviously decided, before the existing numerical restrictions on video games in the CBD were applied to plaintiff's case, to challenge those restrictions. Having lost that contest, plaintiff cannot credibly claim that it was unaware of the very restrictions it challenged.
(5b) Plaintiff contends that the certificate of occupancy prohibiting the installation of video games on its premises was invalid because unauthorized. Plaintiff relies on Taschner v. City Council (1973) 31 Cal.App.3d 48 [ 107 Cal.Rptr. 214], and Danville Fire Protection Dist. v. Duffel Financial Constr. Co. (1976) 58 Cal.App.3d 241 [ 129 Cal.Rptr. 882], which, respectively, concern the enactment of a city and a fire district ordinance. These cases are clearly inapposite because they involve legislative acts, and the issuing of the certificate here was an administrative act. Otherwise, as noted, any defect in the certificate or its issuance have been rendered moot by the judgment.
(8a) Plaintiff contends that the injunction should not have been granted, because plaintiff's operation of the 25 games on its premises did not constitute a nuisance and was not a clear violation of the zoning code. This contention is without merit.
(8b) In its cross-complaint for injunctive relief, City alleged that plaintiff's installation and use of 25 video electronic games on its premises constituted a violation of section 9229.02 of City's zoning ordinance ("The following classification of uses shall not be permitted in [the CBD] . . . electronic games as [a] primary [use]") as interpreted by the City planning commission resolution No. 3445 ("the definition of a primary use [for electronic game machines] is five machines or greater"), and that section 11.72.080 of City's municipal code provides that "`Any violation of the zoning ordinance of the City is a public nuisance.'"
In plaintiff's five-page answer to the cross-complaint, in which it admitted and denied various allegations thereof, including allegations in paragraphs VII and IX of City's first cause of action, plaintiff made no reference whatsoever to the foregoing paragraph VIII. By failing to controvert City's allegation in paragraph VIII that plaintiff's use of 25 video games on its premises was a violation of the zoning ordinance, plaintiff admitted the violation ( Fuentes v. Tucker (1947) 31 Cal.2d 1, 4 [ 187 P.2d 752]) and the trial court so found. Moreover, we have discovered no evidence in the record to contradict the violation, and on appeal, plaintiff has cited no such evidence.
Finally, as to the second or constitutional requirement of City of Bakersfield v. Miller, supra, 64 Cal.2d 93, 100, the trial court found that the applicable sections of City's municipal code and zoning ordinance were constitutionally valid, and that City's planning commission resolution No. 3445 was properly adopted.
In view of all the foregoing, the injunction was proper.
(11) Plaintiff contends that it had a vested right to operate 25 video games on its premises, because it relied in good faith "on ordinances permitting video games as accessory uses." This contention is unsupported by the record. Significantly, plaintiff does not contend that it relied on any ordinances or representations as to the number of games which constituted accessory uses. Moreover, there was uncontradicted evidence that plaintiff was timely informed of City's "long-standing" policy limiting accessory uses of video games to four games or less in the CBD, and plaintiff has cited no representations to the contrary.
(12a) Plaintiff contends that City is estopped from preventing plaintiff's use of the 24 games on its premises, because City granted plaintiff a license and "permitted" the installation of the games. This contention is also unsupported by the record.
In this case, the relevant (1982) facts are: (1) on July 6, plaintiff was told by a City official that plaintiff could not install more than four games on its premises; (2) on July 13, City issued plaintiff a business license tax receipt which provided that "Issuance hereof does not entitle the licensee to operate or maintain a business in violation of any other law or ordinance"; (3) on September 23, City issued plaintiff a certificate of occupancy which provided that "no video or electronic games shall be placed on these premises"; (4) on September 27 or 28, plaintiff installed 25 games on its premises.
(12b) In view of the foregoing facts, plaintiff should be estopped from contending that City did or said anything to make plaintiff believe it could install more than four games on its premises.
Morris, P.J., and Kaufman, J., concurred.

matches: v. v. v. v. v. v. v. v.


text:
The origin of life on Earth and in the universe has always been a scientific question at the forefront of mankind’s mind. We recognise life on Earth has been around for 1,000s of millions of years on Earth from microfossils, stromatolites and mineralogical evidences preserved in the rock record. However, the record becomes increasingly ever sparse the further back in time we look and therefore so do the clues for when and where life first resided on Earth. One common variety of sedimentary rock preserved in Earth’s oldest terranes are banded iron formations. These iron-rich rocks are thought to be derived from hydrothermal vent plumes (Jacobsen and Pimentel-Klose, 1988) in the ancient oceans and therefore make promising targets to search for remains of the earliest organisms - which may have been chemolithotrophs that utilised the diverse chemistries around hydrothermal vents (Wächtershäuser, 1988). Although recent evidence for stromatolite structures in 3,700 million year old carbonates suggest phototrophic metabolisms may have arisen incredibly early (Nutman et al., 2016). We therefore targeted jaspers and banded iron formations from one of the oldest - if not the oldest geological terranes on Earth (O’Neil et al., 2008), to search for remnants of early life in hydrothermally active areas. The main goal of the study was to identify organic remains, often preserved as graphite in metamorphosed rocks. The major challenge we faced was the inherent lack of organic carbon preserved in these rocks, which is typical of banded iron formation and jaspers. However, this is not evidence for lack of biological activity, but a characteristic feature of iron-oxide-rich sediments. We therefore chose to conduct high-spatial (330 nm) resolution analyses, using a micro-Raman system to map and find organic carbon particulates on the order of a few microns or less.
While searching for microscopic particles of organic matter we found haematite filaments and tubes with remarkable similarity to microfossil structures in younger analogous hydrothermal vent deposits. Their morphology was very compelling however not conclusive evidence, so we looked for chemical lines of evidence to assess the biogenecity of the tubes and filaments, as well as assessing abiotic physical processes which could mimic the intricate morphologies. Studying the filament and tube bearing rocks we found graphite co-occurred with key biominerals such as apatite and carbonate. Especially it is the close association of isotopically light carbon in graphite with apatite and carbonate beside the haematite filaments and tubes along with their morphological characteristics, which allowed us to draw significant comparisons with similar younger microfossils. Finally, it was necessary to consider a detailed list of complex processes involving burial and metamorphic effects as possible formation mechanisms for the tubes and filaments. After considering these and in cohort with multiple, chemical lines of evidence we were able to clearly demonstrate the tubes and filaments were microfossils.
These observations certainly fit with models and timing on the emergence of the last common universal ancestor (Weiss et al., 2016) and a hydrothermal origin of life on Earth. However, recent dating of ancient rocks in northern Labrador, Canada, reveal that shallow marine sediments as old as 3,950 million years preserve graphitic carbon in chert concretions within carbonate rocks (Komiya et al., 2015). This finding may prove to be diagnostic of an active biological community in shallow marine environments, similar to the stromatolites in dolomite from the 3,700 million year old Isua belt (Nutman et al., 2016). These observations suggest life was already exploiting different environments by around 3,700 million years ago. Future research will need to explore these early environments in order to assess the birthplace of life on Earth and promising targets to hunt for extra-terrestrial life in the solar system.
Jacobsen, S. B., and Pimentel-Klose, M. R., 1988, A Nd isotopic study of the Hamersley and Michipicoten banded iron formations: the source of REE and Fe in Archean oceans: Earth and Planetary Science Letters, v. 87, p. 29-44.
Komiya, T., Yamamoto, S., Aoki, S., Sawaki, Y., Ishikawa, A., Tashiro, T., Koshida, K., Shimojo, M., Aoki, K., and Collerson, K. D., 2015, Geology of the Eoarchean, >3.95Ga, Nulliak supracrustal rocks in the Saglek Block, northern Labrador, Canada: The oldest geological evidence for plate tectonics: Tectonophysics, v. 662, p. 40-66.
Nutman, A. P., Bennett, V. C., Friend, C. R., Van Kranendonk, M. J., and Chivas, A. R., 2016, Rapid emergence of life shown by discovery of 3,700-million-year-old microbial structures: Nature.
O’Neil, J., Carlson, R. W., Francis, D., and Stevenson, R. K., 2008, Neodymium-142 Evidence for Hadean Mafic Crust: Science, v. 321, p. 1828-1831.
Wächtershäuser, G., 1988, Pyrite Formation, the First Energy Source for Life: a Hypothesis: Systematic and Applied Microbiology, v. 10, no. 3, p. 207-210.
Weiss, M. C., Sousa, F. L., Mrnjavac, N., Neukirchen, S., Roettger, M., Nelson-Sathi, S., and Martin, W. F., 2016, The physiology and habitat of the last universal common ancestor: Nature Microbiology, v. 1, p. 16116.

matches: v. v. V. v. v. v.


text:
Case: John Quinones v. Federated Department Stores, Inc.
In an action, inter alia, to recover damages for personal injuries, etc., the defendants Federated Department Stores, Inc., and Macy's East, Inc., appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated May 11, 2011, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Federated Department Stores, Inc., and Macy's East, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted.
On August 3, 2004, a cooking demonstration was held in the Cellar at a Macy's department store in Manhattan. A group of wooden folding chairs had been set up for customers to view the demonstration. As John Quinones (hereinafter the plaintiff) sat in a chair, it collapsed, allegedly causing him to sustain personal injuries. The plaintiff, with his wife suing derivatively, commenced this action against Federated Department Stores, Inc., and Macy's East, Inc. (hereinafter together Macy's), Beechwood Mountain, LLC (hereinafter Beechwood), and Broadway Famous Party Rental (hereinafter Broadway), alleging negligence, breach of warranty, and strict liability. Macy's moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the Supreme Court denied the motion.
"[L]iability may not be imposed for breach of warranty or strict products liability upon a party that is outside the manufacturing, selling, or distribution chain" (Spallholtz v. Hampton C.F. Corp., 294 A.D.2d 424, 424, 741 N.Y.S.2d 917, quoting Joseph v. Yenkin Majestic Paint Corp., 261 A.D.2d 512, 512, 690 N.Y.S.2d 611). Here, Macy's established its prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging breach of warranty and strict liability by demonstrating that it was outside the manufacturing, selling, or distribution chain. The subject chair was sold by a Bulgarian company to Beechwood, which sold it to Broadway, which sold it to Macy's, which used the chair for its customers to view cooking demonstrations. In opposition to this prima facie showing, Beechwood, the only party opposing the motion, failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Further, Macy's demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligence by submitting evidence establishing that it neither created nor had notice, actual or constructive, of the defective condition of the chair (see Miles v. Hicksville U.F.S.D., 56 A.D.3d 625, 625-626, 867 N.Y.S.2d 537; Loiacono v. Stuyvesant Bagels, Inc., 29 A.D.3d 537, 538, 814 N.Y.S.2d 695; Levinstim v. Parker, 27 A.D.3d 698, 815 N.Y.S.2d 596). In opposition, Beechwood failed to raise a triable issue of fact. Beechwood's contention that the doctrine of res ipsa loquitur applies to this case, raised for the first time on appeal, is not properly before this Court (see Doize v. Holiday Inn Ronkonkoma, 6 A.D.3d 573, 574, 774 N.Y.S.2d 792; Oliveri v. Oliveri, 251 A.D.2d 561, 673 N.Y.S.2d 604).
Accordingly, the Supreme Court should have granted Macy's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

matches: v. v. v. v. v. v. v. v. v.