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HORACE M. LEONARD vs. CHESTER STRONG & another [Note 1] (and a companion case).
TWO ACTIONS OF CONTRACT. Writs in the Superior Court dated November 22, 1968.
The actions were heard by Frank E. Smith, J., without jury.
Richard D. Clarey (Paul F. Wynn with him) for Alice Strong Kydd.
Ellsworth A. Hathaway for Horace M. Leonard & another.
ROSE, J. These are two actions of contract, one of which was brought by Horace Leonard against Chester Strong and his then wife Alice [Note 2] and the other of which was brought by Merle Leonard against the same defendants. Each case is before us on a substitute bill of exceptions filed by Alice Kydd. Since the allegations of error in the two cases are for the most part unrelated, we shall discuss the cases separately.
Kydd was a defendant only in the first of the three counts in this action. On that count, a claim for money advanced, the judge found against both defendants in the amount of $6,000. Kydd took exceptions to the denials of her motion for a continuance, of her requests for rulings, [Note 3] and of her motion for a new trial.
The facts pertinent to a consideration of Kydd's exception to the denial of her motion for a continuance are as follows. Horace's action was begun in 1968. An attorney seasonably entered an appearance for Kydd but subsequently withdrew from the case on July 17, 1970.
Seventeen months later, on December 6, 1971, the case was called for trial. Kydd, however, did not appear on that date, having received no notice of the call. The case was marked for trial on December 8, at which time Kydd appeared with new counsel and moved for a continuance. Her motion was denied subject to exception. On December 10 the case went to trial with all parties present.
Kydd's other exceptions were each grounded in whole or in part on the contention that the statute of frauds barred any recovery against her. Kydd relies on that portion of the statute which governs the sale of interests in land. See G. L. c. 259, Section 1, Fourth. Although there was mention at the trial of transactions in land, the plaintiff's action against Kydd was a claim for money advanced, to which the cited provision has no application. Her exceptions on this point must therefore be overruled.
Kydd also argues that there was a variance between the declaration and the evidence introduced by the plaintiff.
Even if we assume that this issue was properly raised at trial [Note 5] (see Griffin v. Rudnick, 298 Mass. 82, 84 ; Spence v. Lawrence, 337 Mass. 355, 358 ), we are of the opinion that no variance existed. The plaintiff, an elderly man in failing health, testified that Kydd had realized $6,000 by selling property which he had transferred to her for safekeeping. Chester Strong, however, testified that the plaintiff had sold the property himself and had advanced the proceeds to the defendants. The judge could and apparently did believe the testimony of Strong, which adequately supported the allegations made in the declaration.
Merle Leonard's action consisted of two counts. Kydd was a defendant in only the first count, a claim for money advanced, on which there was a finding for the plaintiff in the amount of $3,100. Of the arguments advanced by Kydd in support of her exceptions to the denial of her requests for rulings and her motion for a new trial, we need consider only one, to wit, that the action against her was barred by the statute of limitations.
to buy real estate. The bulk of the $3,300 was never repaid, either to the plaintiff or to the real estate concern, but on February 14, 1967, while the plaintiff and Chester Strong were in a store looking at a jacket, Strong paid the plaintiff $200, commenting as follows: "Well, we owe you $3,300 from a long time ago. So . . . [take] this $200 on account and buy your jacket." The present action was brought in November of 1968.
The plaintiff concedes that the six year statute of limitations applicable to actions of contract (see G. L. c. 260, Section 2) had run by the time his action was begun and further recognizes that part payment by one of two joint debtors would not toll the running of the statute as to the other. [Note 6] He argues, nevertheless, that Strong's payment tolled the running of the statute as to Kydd because there was evidence that they were in a close business relationship. [Note 7] Compare, in this regard, Vermont-Peoples National Bank v. Parker, 269 Mass. 387, 390-391 (1929). The bill of exceptions, however, contains no evidence of a business relationship between the defendants other than their participation, at an undisclosed date, in a construction corporation. This evidence is not sufficient to establish that the "debtor . . . [stood] in such a relation to . . . [the payment by a joint debtor] as to warrant an inference that by the payment he personally intended to renew his promise to satisfy the indebtedness." See Abele v. Dietz, 312 Mass. 685, 687 (1942), and cases cited. We conclude that Kydd's exceptions on this point must be sustained.
In the action brought by Horace Leonard, Kydd's exceptions are overruled. In the action brought by Merle Leonard, her exceptions are sustained, and judgment is to be entered in her behalf.
[Note 2] Chester Strong and Alice Kydd separated on October 3, 1968, and were divorced in 1969.
[Note 3] Although the bill of exceptions suggests that Kydd raised the issue of an alleged failure of proof (argued in this court as an issue of variance; see n.5) by a motion for a "directed finding," an examination of the papers filed in the case reveals that the point was presented in proper form by a request for a ruling of law. See Forbes v. Gordon & Gerber, Inc. 298 Mass. 91, 94 (1937).
[Note 4] Kydd also argues that the court's failure to give her as much notice as the other parties to the case may have received violated her rights under the equal protection clause of the Fourteenth Amendment to the United States Constitution. As no distinct objection or exception on this point appears in her substitute bill of exceptions, we treat it as an aspect of her argument regarding the denial of her motion for a continuance. We discern no constitutional violation. Compare Old Colony R.R. Co. v. Assessors of Boston, 309 Mass. 439, 449-450 (1941).
"The plaintiff is barred from recovery on Count 1 because he introduced no evidence to support his allegations in the declaration that be `advanced' money to the defendants."
"Plaintiff utterly failed to introduce proof that he advanced $6,000.00 to the defendant Alice Kydd as alleged in Count 1 of his declaration."
[Note 6] See G. L. c. 260, Section 15: "A joint contractor or his executor or administrator shall not lose the benefit of this chapter so as to be chargeable by reason only of an acknowledgement or promise made or signed, or by reason of a payment made, by any other joint contractor or his executor or administrator."
[Note 7] The plaintiff does not rely on the defendants' marital status at the time of Strong's payment, and there is no reason to believe that this would modify the operation of Section 15.

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[291 U.S. 442, 443] Messrs. Samuel T. Ansell and George M. Wilmeth, both of Washington, D. C., for petitioner. Mr. Harrell O. Hoagland, of Washington, D.C., for respondent J. Raymond McCarl, Comptroller General of the United States.
[291 U.S. 442, 447] Mr. J. Crawford Biggs, Sol. Gen., of Washington, D.C., for respondent Frederick W. Coleman, Chief of Finance, United States Army.
Petitioner thereupon brought this suit in the Supreme Court of the District of Columbia to enjoin the Comptroller General from interfering with the respondent Coleman, Chief of Finance, or with any finance or disbursing officer of the Army, to prevent payment to petitioner of the retired pay and allowances due for the month of November and subsequent months; and to enjoin and command the Comptroller General to return forthwith to the disbursing officer the voucher then being retained in the files of his office. The bill further sought to enjoin and command respondent Coleman, Chief of Finance, to pay or cause to be paid to petitioner such retired pay and [291 U.S. 442, 450] allowances for November and subsequent months. Motions of respondents to dismiss the bill were denied by the Supreme Court of the District, and thereupon respondents filed separate answers. A motion to strike these answers and for a decree in favor of petitioner was granted by the Supreme Court of the District. Final decree against respondents followed in accordance with the prayer of the bill.
No appearance is made here by respondent Coleman, and no brief filed or argument made in his behalf. The Solicitor General, however, has filed a comprehensive brief (in which the Judge Advocate General of the War Department joins) urging the correctness of the petitioner's contention and uniting with him in challenging the decision below. The Comptroller General, contending that the decision is right and should be affirmed, states the point of inquiry to be whether the Chief of Finance and the Comptroller General can be compelled by mandatory injunction, the one to pay or cause to be paid the voucher in question, and the other to approve and allow credit for such payment, after the latter, on application for a decision by the disbursing officer before whom the [291 U.S. 442, 451] voucher was pending for payment, has rendered his decision holding such payment not authorized under existing appropriations.
In Roberts, Treasurer, v. United States, 176 U.S. 221 , 20 S.Ct. 376, this court held that where the proper construction of a statute is [291 U.S. 442, 452] clear, the duty of an officer called upon to act under it is ministerial in its nature and may be compelled by mandamus. The opinion points out ( page 231 of 176 U.S., 20 S.Ct. 376, 379) that every such statute to some extent requires construction by the officer; that he must read the law and, therefore, in a certain sense, construe it in order to form a judgment from its language what duty he is required to perform. 'But that does not necessarily and in all cases make the duty of the officer anything other than a purely ministerial one. If the law direct him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to perform, then that act is ministerial, although depending upon a statute which requires, in some degree, a construction of its language by the officer. Unless this be so, the value of this writ is very greatly impaired.' This view of the matter has been uniformly approved in subsequent decisions. See, for example, Lane v. Hoglund, 244 U.S. 174, 181 , 37 S.Ct. 558; Wilbur v. U.S. ex rel. Krushnic, 280 U.S. 306, 318 , 50 S.Ct. 103. The mandatory injunction here prayed for is in effect equivalent to a writ of mandamus, and governed by like considerations. Warner Valley Stock Company v. Smith, 165 U.S. 28, 31 , 33 S., 17 S.Ct. 225. With the foregoing well settled rule in mind we turn to the pertinent legislation.
Petitioner enlisted under this act, and it does not admit of doubt that thereby he enlisted 'for service in the Army' as a member of the organization of Philippine Scouts. One who enlists for service in the Army certainly [291 U.S. 442, 453] becomes 'an enlisted man ... in the Army'; and when he 'shall have served thirty years' therein, he falls within the plain terms of the Act of March 2, 1907, supra, and, in accordance therewith, is entitled to 'be placed upon the retired list' with the pay and allowances therein prescribed. Statutory provisions so clear and precise do not require construction. In such case, as this court has often held, the language is conclusive. 'There can be no construction where there is nothing to construe.' United States v. Shreveport Grain & El. Co., 287 U.S. 77, 83 , 53 S.Ct. 42, 44, and cases cited.
The court below cites section 26 of the National Defense Act of June 3, 1916, 39 Stat. 166, 185; sections 22 and 26 of the Act of June 4, 1920, 41 Stat. 759, 770, 775; and section 17 of the Act of June 10, 1922, 42 Stat. 625, 632, in support of its view that this is a case of 'doubtful inference from statutes of uncertain meaning' in the sense of the rule stated in Wilbur v. United States, supra, hereinbefore quoted. But those sections fail, in our opinion, to disclose anything which conflicts with the positive words of section 36 of the act of 1901, supra. Section 26 of the 1916 act simply provides that captains and lieutenants of the Philippine Scouts who are citizens of the United States shall be entitled to retirement under the laws governing retirement of enlisted men of the Regular Army, but to be retired with the grade held by them at the date of their retirement. The section is confined to the officers named and has nothing to do with enlisted men. The provision was necessary, as pointed out in the brief of the Solicitor General, because prior to the enactment of the Act of June 4, 1920, supra, these officers were usually enlisted men of other branches of the Regular Army, whose appointments were of a provisional character. Special legislation was therefore required to enable them to retire with the pay and allowances of officers instead of enlisted men. The provisions in the Act of June 4, 1920, which are referred [291 U.S. 442, 454] to, relate to 'all officers of the Philippine Scouts,' but it is expressly provided that nothing in the act shall alter the status of enlisted men. Section 17 of the Act of June 10, 1922, likewise relates to officers and former officers of the Philippine Scouts, according them the status of officers in the regular establishment; and again it is provided that the act shall not be construed as affecting the enlisted men.
It is said by the Comptroller General that there was no existing appropriation of public money available for payment of retired pay and allowances to petitioner. But this statement quite evidently is made only in the view that the petitioner does not come within the retirement provision of the Act of March 2, 1907, since there was [291 U.S. 442, 455] available an existing appropriation for retired pay and allowances of enlisted men retired under that provision.
The Chief of Finance is charged by law with the duty of disbursing all funds of the War Department, including the pay of the Army. U.S.C., title 10, 172 (10 USCA 172). The disbursing officer to whom the voucher was presented for payment, therefore, is simply a subordinate of the Chief of Finance, subject to his control and direction, and the suit was properly brought against the latter. The purpose of the suit was to control the action of the Chief of Finance, that is, to compel him to pay or cause to be paid the voucher in question. The disbursing officer as the mere agent of his superior officer is not an indispensable, although he might have been joined as a proper, party. Compare Warner Valley Stock Company v. Smith, supra, pages 34, 35 of 165 U.S., 17 S.Ct. 225; Gnerich v. Rutter, 265 U.S. 388 , 391-393, 44 S.Ct. 532; Webster v. Fall, 266 U.S. 507 , 45 S.Ct. 148; Alcohol Warehouse Corporation v. Canfield (C.C.A.) 11 F.(2d) 214; Dami v. Canfield (D.C.) 5 F.(2d) 533. We find no merit in the contention that the United States is a necessary party and this suit not maintainable without its consent, Payne v. Central Pac. R. Co., 255 U.S. 228, 238 , 41 S.Ct. 314; or in the further contention that the suit cannot be maintained because petitioner has a remedy at law in the court of claims for his retired pay. Smith v. Jackson, 246 U.S. 388 , 38 S.Ct. 353; Id. (C.C.A.) 241 F. 747, 760.
As to the Comptroller General, a different situation is presented. The request for an advance decision from him came from the Chief of Finance at the request of the disbursing officer. U.S.C. Supp., title 31, 74 (31 USCA 74). The Comptroller General undertook nothing on his own [291 U.S. 442, 456] motion, and as he asserts, did nothing either to coerce or invite the application for an advance decision. Having given that decision, his function in that regard ceased. The effect of the decision is a matter purely of law. Obviously, there is no occasion for compelling him by mandamus to recall his decision. However, he continues to retain possession of the voucher, upon the theory evidently that, having determined that the disbursing officers were without authority to make payment, it belongs in the files of his office. The view of the Supreme Court of the District, that a mandatory injunction will lie to compel a return of that voucher to the disbursing officer and to enjoin the Comptroller General from any interference with the Chief of Finance tending to prevent payment thereof to petitioner, has not, in the light of the case as now made, met with the concurrence of a majority of this court. In that situation, we, therefore, affirm, without discussion, the decree of the District Court of Appeals in so far as it relates to the Comptroller General. But it is not to be supposed that, upon having his attention called to our decision, the Comptroller General will care to retain possession of the voucher or that he will interfere in any way with its payment.

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In his legal experience of more than 40 years, Thomas R. Larson has built a reputation as one of the area's most distinguished litigators. He serves as regional counsel advising and handling litigation for numerous manufacturers and businesses, and he also serves as national litigation counsel in asbestos claims for a large manufacturer of agricultural equipment.
Having served as lead trial counsel on more than 50 jury trials, during which he has amassed a winning percentage of 85%, Tom is one of only a handful of lawyers to win a defense verdict in an asbestos case in the City of St. Louis (Goede v. Aerojet Gen. Corp.). He also has the distinction of being one of a select group of attorneys to be recognized for his significant verdicts (Nichols v. Kubota Tractor Corp. and D.D. Beal v. Mid-Missouri Bank) as both defense and plaintiff's counsel by Missouri Lawyers Weekly.
In addition to his success in jury trials, Tom has an impressive record handling appeals including after trial court losses by other counsel. His win record of 90% as appellant far exceeds the statistical average of 50%, and his win record of 90% as respondent matches the statistical average. Appellate cases handled or briefed by him have helped to shape Missouri law for the past 40 years, including frequently cited cases establishing that a manufacturer cannot be liable for negligent design where the hazard is "open and obvious" (Morrison v. Kubota Tractor Corp.), designing the only jury instruction approved by the Missouri Supreme Court for submitting comparative fault on the part of a plaintiff in a product liability case (Eglehoff v. Holt), establishing rules limiting the availability of punitive damages (Angotti v. Celotex), establishing rules that limit the liability of a component part manufacturer (Sperry v. Bauermeister, Inc.), and many others.
Tom believes that his clients benefit most when they achieve a quick and effective result. His philosophy is understanding the risks and rewards associated with a particular matter are essential to determining how it should be handled. According to Tom, "Within a short period of time (30-60 days), we assimilate the essential facts and accurately advise our client on the feasibility of winning, the probable award, and the expected costs. With this information, we design protocols that permit our clients to minimize their legal expenses, and we work to find innovative strategies that enable our clients to resolve their matters quickly and successfully. When all else fails, we have the experience and knowledge to take our cases to trial and give our clients an excellent chance of winning."
Tom is a Fellow of the Litigation Counsel of America's Trial Lawyer Honorary Society and is AV® Preeminent™ Peer Review Rated by Martindale-Hubbell.

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The U.S. Supreme Court’s decision May 21 in Epic Systems v. Lewis is the latest 5-4 ruling in favor of the enforcement of arbitration clauses. In an opinion by Justice Neil M. Gorsuch, the court ruled that an employer may lawfully require its employees to agree, as a condition of employment, to take all employment-related disputes to arbitration on an individual basis and to waive their right to participate in a class action suit or class arbitration.
The case involved an effort by workers to file a class action suit against an employer for violating the federal minimum wage law. The employer sought to dismiss the case because it had insisted as a condition of employment that the employees waive their ability to go to court or be part of a class action; any dispute had to be resolved out of court in an arbitration.
The National Labor Relations Act, a federal law adopted in 1935, protects a right for employees to engage in “concerted activities for the purpose of … mutual aid or protection.” But Justice Gorsuch, joined by the conservative justices—John G. Roberts Jr., Anthony Kennedy, Clarence Thomas, and Samuel A. Alito Jr.—ruled that the arbitration clause in the employment contract had to be enforced, and the workers could not go to court or even have a class action in arbitration. The Supreme Court based its decision on the Federal Arbitration Act, a law adopted in 1925, which provides that arbitration clauses in contracts shall be enforced.
Epic Systems v. Lewis follows several other Supreme Court decisions, all split along ideological lines, that required the enforcement of arbitration clauses based on the Federal Arbitration Act. In Circuit City v. Adams (2001), the court ruled 5-4 that an employee could not sue in state court for discrimination because on the back of the job application was a clause saying that any employment-related disputes had to go to arbitration.
There is an exception to the Federal Arbitration Act that says arbitration is not required for claims by “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” However, the Supreme Court interpreted the statute to say that employees in interstate commerce refers only to transportation workers. Under the court’s interpretation, contractual clauses requiring arbitration are not enforceable only for those working in the transportation industry. But all other employees are compelled to have their employment disputes, including discrimination claims, resolved through arbitration when there is such a clause in the employment contract.
AT&T Mobility LLC v. Concepcion (2011) is another example of the Supreme Court enforcing arbitration agreements. Vincent and Liza Concepcion purchased cellular telephones from AT&T Mobility. The form contract they signed provided for arbitration of all disputes between the parties. They believed that AT&T had engaged in fraud by charging them sales tax after promising free phones. The Concepcions’ suit was consolidated with other similar claims in a class action suit filed in federal court.
AT&T moved to compel arbitration under the terms of its contract with the Concepcions. The Federal Arbitration Act specifically provides that arbitration clauses are not enforceable where state law provides for the revocation of the contractual provision. The federal district court and the San Francisco-based 9th U.S. Circuit Court of Appeals said that the arbitration clause was not to be given effect because California law was clear that such a contractual provision is not enforceable. The California Supreme Court had ruled that arbitration clauses in form agreements are contracts of “adhesion” and not to be enforced. But the Supreme Court, 5-4, held that the Federal Arbitration Act requires the arbitration of claims on an individual basis and that California law was therefore pre-empted.
In American Express v. Italian Colors Restaurant (2013), the court said that an arbitration clause in a contract must be enforced even if it means that an antitrust suit realistically has no chance of going forward, and when the effect will surely be to immunize a defendant’s wrongful conduct from any remedy. Italian Colors Restaurant, a small business, accepted American Express cards. Italian Colors wanted to bring a class action against American Express for antitrust violations. American Express sought to prevent this litigation by invoking a clause in its agreement that requires all disputes between the parties to be resolved by arbitration.
Italian Colors said that the antitrust suit could not realistically go forward except as a class action. Successfully suing for an antitrust violation can cost hundreds of thousands, if not millions of dollars. Recovery for a claim under the antitrust law, though, is limited to $39,000, including treble damages. No one is going to spend hundreds of thousands or millions of dollars to bring a lawsuit to collect $39,000.
In a 5-4 opinion by Justice Antonin Scalia, the high court said that the Federal Arbitration Act required that the arbitration clause be strictly enforced, even if it meant that the antitrust claims otherwise would not be brought. There is a long-standing principle under the Federal Arbitration Act that arbitration clauses are not to be enforced if they prevent “effective vindication” of a claim. But the court refused to allow the exception to apply in situations like this where the costs of litigation mean that no claim would ever be brought.
There are striking and consistent differences between the conservative majorities and the liberal dissents in these cases. First, they disagree as to whether the parties to the contracts really had a meaningful agreement to arbitration. In Epic Systems, Justice Gorsuch began his opinion by asking: “Should employers and employees be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?” The dissent did not see the arbitration as an agreement between the parties; it was dictated by the employer as a condition for employment, just as the dissents did not find a meaningful agreement in Circuit City in the back of an employment agreement or in AT&T Mobility in a form contract.
Justice Ruth Bader Ginsburg made a similar point in her dissent in Epic Systems: “Violations of minimum-wage and overtime laws are widespread. … One study estimated that in Chicago, Los Angeles, and New York City alone, low-wage workers lose nearly $3 billion in legally owed wages each year.” Individual employees are unlikely to bring individual claims to arbitration. Without the ability to bring class action suits, employees have little likelihood of recourse. Employers know it too, and will be ever more emboldened to rip off their employees.
Finally, and not surprisingly, the conservative and liberal justices interpret the Federal Arbitration Act to reflect their views about arbitration and class actions. For the conservative justices, the Act is a strong mandate that arbitration clauses shall be enforced by the federal courts. The liberal dissenting justices, though, believe the court is ignoring the limits in the statute: it does not apply to employment contracts or when a contract would not be enforceable under state law or where it would prevent effective vindication of a claim.
Underlying these differences is the reality that the conservative justices are much more pro-business, and business strongly favors enforcement of arbitration agreements. By contrast, the liberal justices are much more concerned with protecting employees and consumers.
No one, liberal or conservative, has doubt that Epic System v. Lewis would have come out the other way if Hillary Clinton rather than Donald Trump had replaced Antonin Scalia. It is a significant loss for workers. More generally, it shows a court that is going to continue to enforce arbitration clauses and preclude class remedies.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).


Nothing in the record before us or the opinions below indicates that subsections 1(1) and 1(2) of the preamble to Missouri's abortion regulation statute will affect a woman's decision to have an abortion. Justice Stevens, following appellees, see Brief for Appellees 22, suggests that the preamble may also "interfer[e] with contraceptive choices," post, at 564, because certain contraceptive devices act on a female ovum after it has been fertilized by a male sperm. The Missouri Act defines "conception" as "the fertilization of the ovum of a female by a sperm of a male," Mo. Rev. Stat. §188.015(3) (1986), and invests "unborn children" with "protectable interests in life, health, and well-being," §1.205.1(2), from "the moment of conception . ..." §1.205.3. Justice Stevens asserts that any possible interference with a woman's right to use such postfertilization contraceptive devices would be unconstitutional under Griswold v. Connecticut, 381 U.S. 479 (1965), and our subsequent contraception cases. Post, at 564-566. Similarly, certain amici suggest that the Missouri Act's preamble may prohibit the developing technology of in vitro fertilization, a technique used to aid couples otherwise unable to bear children in which a number of ova are removed from the woman and fertilized by male sperm. This process often produces excess fertilized ova ("unborn children" under the Missouri Act's definition) that are discarded rather than reinserted into the woman's uterus. Brief for Association of Reproductive Health Professionals [*523] et al. as Amici Curiae 38. It may be correct that the use of postfertilization contraceptive devices is constitutionally protected by Griswold and its progeny, but, as with a woman's abortion decision, nothing in the record or the opinions below indicates that the preamble will affect a woman's decision to practice contraception. For that matter, nothing in appellees' original complaint, App. 8-21, or their motion in limine to limit testimony and evidence on their challenge to the preamble, id., at 57-59, indicates that appellees sought to enjoin potential violations of Griswold. Neither is there any indication of the possibility that the preamble might be applied to prohibit the performance of in vitro fertilization. I agree with the Court, therefore, that all of these intimations of unconstitutionality are simply too hypothetical to support the use of declaratory judgment procedures and injunctive remedies in this case.
Similarly, it seems to me to follow directly from our previous decisions concerning state or federal funding of abortions, Harris v. McRae, 448 U.S. 297 (1980), Maher v. Roe, 432 U.S. 464 (1977), and Poelker v. Doe, 432 U.S. 519 (1977), that appellees' facial challenge to the constitutionality of Missouri's ban on the utilization of public facilities and the participation of public employees in the performance of abortions not necessary to save the life of the mother, Mo. Rev. Stat. §§188.210, 188.215 (1986), cannot succeed. Given Missouri's definition of "public facility" as "any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivisions thereof," §188.200(2), there may be conceivable applications of the ban on the use of public facilities that would be unconstitutional. Appellees and amici suggest that the State could try to enforce the ban against private hospitals using public water and sewage lines, or against private hospitals leasing state-owned equipment or state land. See Brief for Appellees 49-50; Brief for National Association of Public Hospitals as Amicus Curiae [*524] 9-12. Whether some or all of these or other applications of §188.215 would be constitutional need not be decided here. Maher, Poelker, and McRae stand for the proposition that some quite straightforward applications of the Missouri ban on the use of public facilities for performing abortions would be constitutional and that is enough to defeat appellees' assertion that the ban is facially unconstitutional. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the [relevant statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." United States v. Salerno, 481 U.S. 739, 745 (1987).
I also agree with the Court that, under the interpretation of §188.205 urged by the State and adopted by the Court, there is no longer a case or controversy before us over the constitutionality of that provision. I would note, however, that this interpretation of §188.205 is not binding on the Supreme Court of Missouri which has the final word on the meaning of that State's statutes. Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 395 (1988); O'Brien v. Skinner, 414 U.S. 524, 531 (1974). Should it happen that §188.205, as ultimately interpreted by the Missouri Supreme Court, does prohibit publicly employed health professionals from giving specific medical advice to pregnant women, "the vacation and dismissal of the complaint that has become moot 'clears the path for future relitigation of the issues between the parties,' should subsequent events rekindle their controversy." Deakins v. Monaghan, 484 U.S. 193, 201, n. 5 (1988), quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950). Unless such events make their appearance and give rise to relitigation, I agree that we and all federal courts are without jurisdiction to hear the merits of this moot dispute.
In its interpretation of Missouri's "determination of viability" provision, Mo. Rev. Stat. §188.029 (1986), see ante, at 513-521, the plurality has proceeded in a manner unnecessary to deciding the question at hand. I agree with the plurality that it was plain error for the Court of Appeals to interpret the second sentence of §188.029 as meaning that "doctors must perform tests to find gestational age, fetal weight and lung maturity." 851 F. 2d 1071, 1075, n. 5 (CA8 1988) (emphasis in original). When read together with the first sentence of §188.029 -- which requires a physician to "determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinary skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions" -- it would be contradictory nonsense to read the second sentence as requiring a physician to perform viability examinations and tests in situations where it would be careless and imprudent to do so. The plurality is quite correct: "the viability-testing provision makes sense only if the second sentence is read to require only those tests that are useful to making subsidiary findings as to viability," ante, at 514, and, I would add, only those examinations and tests that it would not be imprudent or careless to perform in the particular medical situation before the physician.
Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the Court's past decisions concerning state regulation of abortion. Therefore, there is no necessity to accept the State's invitation to reexamine the constitutional validity of Roe v. Wade, 410 U.S. 113 (1973). Where there is no need to decide a constitutional question, it is a venerable principle of this Court's adjudicatory processes not to do so, for "[t]he Court will not 'anticipate a question of constitutional law in advance of the [*526] necessity of deciding it.'" Ashwander v. TVA, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring), quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). Neither will it generally "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." 297 U.S., at 347. Quite simply, "[i]t is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U.S. 283, 295 (1905). The Court today has accepted the State's every interpretation of its abortion statute and has upheld, under our existing precedents, every provision of that statute which is properly before us. Precisely for this reason reconsideration of Roe falls not into any "good-cause exception" to this "fundamental rule of judicial restraint . . . ." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 157 (1984). See post, at 532-533 (Scalia, J., concurring in part and concurring in judgment). When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully.
In assessing §188.029 it is especially important to recognize that appellees did not appeal the District Court's ruling that the first sentence of §188.029 is constitutional. 662 F. Supp. 407, 420-422 (WD Mo. 1987). There is, accordingly, no dispute between the parties before us over the constitutionality of the "presumption of viability at 20 weeks," ante, at 515, Posted 9 Sep 2000.
first sentence of §188.029. If anything might arguably conflict with the Court's previous decisions concerning the determination of viability, I would think it is the introduction of this presumption. The plurality, see ante, at 515, refers to a passage from Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 64 (1976): "The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must [*527] be, a matter for the judgment of the responsible attending physician." The 20-week presumption of viability in the first sentence of §188.029, it could be argued (though, I would think, unsuccessfully), restricts "the judgment of the responsible attending physician," by imposing on that physician the burden of overcoming the presumption. This presumption may be a "superimpos[ition] [of] state regulation on the medical determination whether a particular fetus is viable," ante, at 517, but, if so, it is a restriction on the physician's judgment that is not before us. As the plurality properly interprets the second sentence of §188.029, it does nothing more than delineate means by which the unchallenged 20-week presumption of viability may be overcome if those means are useful in doing so and can be prudently employed. Contrary to the plurality's suggestion, see ante, at 517, the District Court did not think the second sentence of §188.029 unconstitutional for this reason. Rather, both the District Court and the Court of Appeals thought the second sentence to be unconstitutional precisely because they interpreted that sentence to impose state regulation on the determination of viability that it does not impose.
Appellees suggest that the interpretation of §188.029 urged by the State may "virtually eliminat[e] the constitutional issue in this case." Brief for Appellees 30. Appellees therefore propose that we should abstain from deciding that provision's constitutionality "in order to allow the state courts to render the saving construction the State has proposed." Ibid. Where the lower court has so clearly fallen into error I do not think abstention is necessary or prudent. Accordingly, I consider the constitutionality of the second sentence of §188.029, as interpreted by the State, to determine whether the constitutional issue is actually eliminated.
I do not think the second sentence of §188.029, as interpreted by the Court, imposes a degree of state regulation on the medical determination of viability that in any way conflicts with prior decisions of this Court. As the plurality [*528] recognizes, the requirement that, where not imprudent, physicians perform examinations and tests useful to making subsidiary findings to determine viability "promot[es] the State's interest in potential human life rather than in maternal health." Ante, at 515. No decision of this Court has held that the State may not directly promote its interest in potential life when viability is possible. Quite the contrary. In Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), the Court considered a constitutional challenge to a Pennsylvania statute requiring that a second physician be present during an abortion performed "when viability is possible." Id., at 769-770. For guidance, the Court looked to the earlier decision in Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476 (1983), upholding a Missouri statute requiring the presence of a second physician during an abortion performed after viability. Id., at 482-486 (opinion of Powell, J.); id., at 505 (O'Connor, J., concurring in judgment in part and dissenting in part). The Thornburgh majority struck down the Pennsylvania statute merely because the statute had no exception for emergency situations and not because it found a constitutional difference between the State's promotion of its interest in potential life when viability is possible and when viability is certain. 476 U.S., at 770-771. Despite the clear recognition by the Thornburgh majority that the Pennsylvania and Missouri statutes differed in this respect, there is no hint in the opinion of the Thornburgh Court that the State's interest in potential life differs depending on whether it seeks to further that interest postviability or when viability is possible. Thus, all nine Members of the Thornburgh Court appear to have agreed that it is not constitutionally impermissible for the State to enact regulations designed to protect the State's interest in potential life when viability is possible. See id., at 811 (White, J., dissenting); id., at 832 (O'Connor, J., dissenting). That is exactly what Missouri has done in §188.029.
"Because this point [of viability] may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability -- be it weeks of gestation or fetal weight or any other single factor -- as the determinant of when the State has a compelling interest in the life or health of the fetus. Viability is the critical point." Id., at 388-389.
The courts below, on the interpretation of §188.029 rejected here, found the second sentence of that provision at odds with this passage from Colautti. See 851 F. 2d, at 1074; 662 F. Supp., at 423. On this Court's interpretation of §188.029 it is clear that Missouri has not substituted any of the "elements entering into the ascertainment of viability" as "the determinant of when the State has a compelling interest in the life or health of the fetus." All the second sentence of §188.029 does is to require, when not imprudent, the performance of "those tests that are useful to making subsidiary findings as to viability." Ante, at 514 (emphasis added). Thus, consistent with Colautti, viability remains the "critical point" under §188.029.
Finally, and rather halfheartedly, the plurality suggests that the marginal increase in the cost of an abortion Posted 9 Sep 2000.
provision may make §188.029, even as interpreted, suspect under this Court's decision in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 434-439 (1983), striking down a second-trimester hospitalization requirement. See ante, at 517. I dissented from the Court's opinion in Akron because it was my view that, even apart from Roe's trimester framework which I continue to consider problematic, see Thornburgh, supra, at [*530] 828 (dissenting opinion), the Akron majority had distorted and misapplied its own standard for evaluating state regulation of abortion which the Court had applied with fair consistency in the past: that, previability, "a regulation imposed on a lawful abortion is not unconstitutional unless it unduly burdens the right to seek an abortion." Akron, supra, at 453 (dissenting opinion) (internal quotations omitted).
It is clear to me that requiring the performance of examinations and tests useful to determining whether a fetus is viable, when viability is possible, and when it would not be medically imprudent to do so, does not impose an undue burden on a woman's abortion decision. On this ground alone I would reject the suggestion that §188.029 as interpreted is unconstitutional. More to the point, however, just as I see no conflict between §188.029 and Colautti or any decision of this Court concerning a State's ability to give effect to its interest in potential life, I see no conflict between §188.029 and the Court's opinion in Akron. The second-trimester hospitalization requirement struck down in Akron imposed, in the majority's view, "a heavy, and unnecessary, burden," 462 U.S., at 438, more than doubling the cost of "women's access to a relatively inexpensive, otherwise accessible, and safe abortion procedure." Ibid.; see also id., at 434. By contrast, the cost of examinations and tests that could usefully and prudently be performed when a woman is 20-24 weeks pregnant to determine whether the fetus is viable would only marginally, if at all, increase the cost of an abortion. See Brief for American Association of Prolife Obstetricians and Gynecologists et al. as Amici Curiae 3 ("At twenty weeks gestation, an ultrasound examination to determine gestational age is standard medical practice. It is routinely provided by the plaintiff clinics. An ultrasound examination can effectively provide all three designated findings of sec. 188.029"); id., at 22 ("A finding of fetal weight can be obtained from the same ultrasound test used to determine gestational age"); id., at 25 ("There are a number of different [*531] methods in standard medical practice to determine fetal lung maturity at twenty or more weeks gestation. The most simple and most obvious is by inference. It is well known that fetal lungs do not mature until 33-34 weeks gestation. ... If an assessment of the gestational age indicates that the child is less than thirty-three weeks, a general finding can be made that the fetal lungs are not mature. This finding can then be used by the physician in making his determination of viability under section 188.029"); cf. Brief for American Medical Association et al. as Amici Curiae 42 (no suggestion that fetal weight and gestational age cannot be determined from the same sonogram); id., at 43 (another clinical test for gestational age and, by inference, fetal weight and lung maturity, is an accurate report of the last menstrual period), citing Smith, Frey, & Johnson, Assessing Gestational Age, 33 Am. Fam. Physician 215, 219-220 (1986).
Moreover, the examinations and tests required by §188.029 are to be performed when viability is possible. This feature of §188.029 distinguishes it from the second-trimester hospitalization requirement struck down by the Akron majority. As the Court recognized in Thornburgh, the State's compelling interest in potential life postviability renders its interest in determining the critical point of viability equally compelling. See supra, at 527-528. Under the Court's precedents, the same cannot be said for the Akron second-trimester hospitalization requirement. As I understand the Court's opinion in Akron, therefore, the plurality's suggestion today that Akron casts doubt on the validity of §188.029, even as the Court has interpreted it, is without foundation and cannot provide a basis for reevaluating Roe. Accordingly, because the Court of Appeals misinterpreted §188.029, and because, properly interpreted, §188.029 is not inconsistent with any of this Court's prior precedents, I would reverse the decision of the Court of Appeals.


“I Gotta Feeling” this claim of infringement should go nowhere … along with that of another recent claim (Batts v. Adams) against “Black Eyed Peas”… and that plaintiff Pringle would be advised to “Take a Hike” – if not a “Dive” – out of the courthouse.
On 29 January 2011 U.S. District Judge Josephine Tucker denied defendants’ motion to dismiss the case, noting the extremely low standard for a claim to survive a challenge of dismissal — namely that a court must accept as true all material allegations made in the complaint, and that the plaintiff’s allegations indicate that there exists a mere possibility that defendants acted unlawfully. Perhaps the only way for wealthy defendants like “Black Eyed Peas” to curtail annoying predatory attempts like these is not to throw plaintiffs a settlement bone (indeed, Pringle’s attorneys actually claim that prior settlements by “Black Eyed Peas” indicate an ongoing record of unlawful conduct) but rather to hold firm – and seek attorney fees.
In March of 2012, however, Judge Tucker dashed any hopes she may have built as to sympathy towards plaintiff’s infringement allegations. Not only did the court grant the defendants’ motion for summary judgment, but it also sanctioned the plaintiff for having deliberately corrupted evidence on which he based his claim. In an extraordinary demonstration of chutzpah the plaintiff apparently not only attempted to falsify the date of creation of his work that he claimed plaintiffs infringed, but, as the court suggests, he also copied defendants’ work in creating the version of his song for which he attempted to obtain a copyright registration, and on which he based his infringement claim.
The audio clip above, of the plaintiff’s work, is the doctored version of his song, which he claimed the defendants copied.
Before the Court is a Motion for Summary Judgment filed by Defendants David Guetta, Frederic Riesterer, and Shapiro, Bernstein & Co., Inc. (collectively, “Moving Defendants”) (Mot., Doc. 159.) Moving Defendants assert several bases for summary judgment. Moving Defendants also assert that Pringle’s claims should be dismissed as a sanction for spoliation of evidence. Plaintiff Bryan Pringle (“Pringle”) filed an Opposition on December 19, 2011. (Opp’n, Doc. 195.) Moving Defendants filed a Reply on January 9, 2012. (Reply, Doc. 222.) Having heard oral argument and read and considered the parties’ papers, the Court GRANTS Moving Defendants’ Motion for Summary Judgment. The Court also concludes that dismissal is an appropriate sanction for Pringle’s willful spoliation of evidence.
Given that you have advanced a claim on [Pringle’s] behalf I am sure you have already advised Mr. Pringle of his duty to preserve all computer records. Out of caution, before Mr. Pringle is confronted with the topic of potential altered dates etc [sic], it is likely appropriate for you to have an independent forensic computer person image his entire hard drive etc. to capture and preserve everything on his system before you confront him. It will be something we will necessarily request in discovery should this case ever reach a filed action.
On behalf of my clients’ [sic], as I am sure you understand, I have to formally make a request for preservation of evidence. Please consider this email my formal request for preservation of evidence.
On December 21, 2010, Pringle delivered to his expert, David Gallant, a CD–ROM hand-marked “PROMO PHOTOS / 1999 ENSONIQ.NRG FILES” (“the NRG Disc”). (Gallant Decl. ¶ 4, Doc. 193.) This CD contained 134 digital photographs, the files for which were dated September 8, 1999, and the NRG files dated August 22, 1999.(Id. ¶ 5(a)).
On November 17, 2011, Moving Defendants moved for summary judgment on several bases. Moving Defendants also assert that Pringle’s claims should be dismissed as a sanction for spoliation of his Hard Drives.
In deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party’s favor. Anderson v.. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is proper “if the [moving party] shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. A factual issue is “genuine” when there is sufficient evidence such that a reasonable trier of fact could resolve the issue in the non-movant’s favor, and an issue is “material” when its resolution might affect the outcome of the suit under the governing law. Anderson, 477 U .S. at 248.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citation and quotation marks omitted). The burden then shifts to the non-moving party to “cit[e] to particular parts of materials in the record” supporting its assertion that a fact is “genuinely disputed.” Fed.R.Civ.P. 56(c)(1); see also In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (“non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party’s favor”).
In paragraph 30 of the FAC, Pringle defines “Take a Dive” to refer to “the derivative version [“Take a Dive” (Dance Version) ] .” (FAC ¶ 30.) Thereafter, Pringle’s FAC asserts that “Defendants … gained access to Plaintiff’s copyrighted song ‘Take a Dive,’ and then subsequently sampled and copies additional, substantial original elements of ‘Take a Dive,’ without Plaintiff’s permission, when they wrote, recorded, performed and made derivative works of their song ‘I Gotta Feeling.’” (FAC ¶ 62.) Therefore, from the FAC, it appears that Pringle alleges both sampling and other copyright infringement of “Take a Dive” (Dance Version).
I had many derivative versions of “Take a Dive” which contained the “guitar twang sequence” soloed out in the song, and provided samples of the same directly to. [sic] [Defendants] Guetta and Garraud, at least as far back as 1999 to 2003.
(Pringle Decl. ¶¶ 142–43.) Therefore, it is unclear whether Pringle asserts that “I Gotta Feeling” infringes “Take a Dive”, “Take a Dive” (Dance Version), or some other undisclosed “derivative” version of the song. However, “no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made….” 17 U.S.C. § 411(a). “Copyright registration is not a prerequisite to a valid copyright, but it is a prerequisite to a suit based on a copyright.” Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1211 (9th Cir. 1998) (citation omitted). Here, Plaintiff has presented evidence of registration of only two songs: “Take a Dive” and “Take a Dive” (Dance Version). Accordingly, these are the only two works on which Pringle’s copyright suit can be based. Therefore, to the extent Pringle claims copyright infringement as to an unidentified “derivative” version of “Take a Dive,” his claim fails.
The Court concludes that Pringle’s registration of “Take a Dive” (Dance Version) is invalid, and he therefore lacks standing to sue for infringement of that work. “In order to obtain a copyright registration, an applicant must deposit as a part of his application a ‘copy’ or ‘copies’ of the work.” Kodadek, 152 F.3d at 1211 (citing 17 U.S.C. § 408(b)(1) and (2)). The Ninth Circuit “[has] stated that the registration deposit requirement permits ‘bona fide copies of the original work only….” Kodadek, 152 F.3d at 1211 (citation omitted). This is because “[t]he Copyright Act does not contemplate the copyrighting of a now non-existent original on the basis of a tendered reconstruction.” Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1322 (9th Cir. 1986). “This means that any ‘copy’ deposited as part of an application for a certificate of copyright registration must be virtually identical to the original and must have been produced by directly referring to the original.” Kodadek, 152 F.3d at 1212. A subsequent copy meets the “bona fide copy” requirement, but only if that copy is a copy that was ultimately produced by reference to the original. Id.
Here, Pringle deposited an MP3 sound file with his November 2010 application for registration of “Take a Dive” (Dance Version). (SUF ¶ 86.) This MP3 file was not created in 1999, nor was it directly copied from a file that was created in 1999. Rather, it was created later using the separate sound files for each individual instrument contained on the NRG file. (See SUF ¶¶ 68, 90.) As described by Pringle in his declaration, this process closely resembles a “reconstruction” of the original, rather than the creation of a bona fide copy. (See generally Pringle Decl. ¶¶ 159–73.) Although Pringle likens the process to loading a tape reel onto a reel-to-reel tape recorder machine and pushing play, the instructions Pringle provided to Defendants’ expert reveal a series of choices that one who wishes to hear the song has to make in order to correctly hear the song as it allegedly existed originally. (Id. ¶¶ 162, 168, Ex. 47.) The key difference is not that there are many more steps to playing the NRG file on an Ensoniq ASR–10 keyboard than to loading a tape into a tape recorder. Rather, the distinction is that these instructions contain not only guidance on operating an Ensoniq ASR–10 keyboard, but on how to load the files and what decisions to make at each step of the way to play the song properly. For example, step 6 provides an instruction on how to “lower[ ] or ‘mute[ ]’ all the wavesamples in this instrument, which allows isolation of the ‘guitar twang sequence’ wavesamples by raising the volume of only the wavesamples needed for the ‘guitar twang sequence’ to play.” (Id. Ex. 47 at 2.) If someone were to have only the NRG file and knew how to operate an Ensoniq ASR–10 keyboard, these instructions suggest that he would still not be able to recreate the song without additional guidance from Pringle.
Accordingly, the Court concludes that the MP3 created through this process and deposited with the United States Copyright Office is not a bona fide copy. Thus, Pringle “did not properly receive a copyright registration in [“Take a Dive” (Dance Version) ] and his infringement action [on that basis] is foreclosed.” Kodadek, 152 F.3d at 1212.
It is undisputed that Pringle has a valid copyright in the original version of “Take a Dive” and has standing to sue for infringement of that copyright. To establish copyright infringement of Take a Dive, Pringle must show that (1) defendants had access to his work and (2) IGF and TAD are substantially similar in protected expression. See Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 2003). “Where a high degree of access is shown, [the Ninth Circuit] require[s] a lower standard of proof of substantial similarity.” Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004). With respect to “Take a Dive,” Plaintiff has failed to provide any evidence of access. Pringle’s declaration and that of his brother provide some facts relating to Defendants’ access to “Take a Dive” (Dance Version), but are completely devoid of any reference to “Take a Dive.” (SAF ¶¶ 129–37.) Jeffrey Pringle stated that Michael Brown played cuts from the Dead Beat Club album, but this statement omits any reference to “Take a Dive.” (SAF ¶ 136.) Furthermore, Jeffrey Pringle’s declaration lacks a showing of personal knowledge as to what music Michael Brown played on the radio. See Fed.R.Evid. 602.
Therefore, to the extent that Norris has identified any similarity, “no reasonable juror could find substantial similarity” between “Take a Dive” and “I Gotta Feeling.” See Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076 (9th Cir.2006). Accordingly, the Court concludes that Pringle’s claim for infringement of the original version of “Take a Dive” fails. The Court concludes that Pringle has met the registration prerequisite to a copyright suit only with respect to the original version of “Take a Dive.” However, because he has not provided evidence of access or substantial similarity between “Take a Dive” and “I Gotta Feeling,” his copyright claim fails. Accordingly, the Court GRANTS Moving Defendants’ Motion for Summary Judgment.


text:
If a record identical to the present one were developed at trial, plaintiff would fail to meet his burden of proof and the court would be required to direct a verdict for defendants. One might think, therefore, that the record would entitle defendants to summary judgment. But one who thought that would be wrong under New York law, because the initial burden to make an evidentiary showing on summary judgment rests on the moving party.
The federal courts have a different rule, which would probably lead to a different result in this case. As to issues on which the non-moving party would have the burden of proof at trial, the United States Supreme Court has rejected the idea ‘that the burden is on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact’ and has held instead that ‘the burden on the moving party may be discharged . . . by pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party’s case.’ (Celotex Corp. v. Catrett, 477 US 317, 325 (1986)). If we were writing on a clean slate, I might prefer the Celotex rule to ours, but we are not, and I am not urging a change in our law. I am urging, however, that parties moving for summary judgment in the future be alert to the burden that the New York law places on a moving party.
Yun Tung Chow, 17 N.Y.3d at 35-36.
Under the federal standard articulated in Celotex, summary judgment must be entered “after adequate time for discovery and upon a motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Under the federal scheme, the moving party is not required to "support its motion with affidavits or other similar materials negating the opponent’s claim.” Id. at 323.
The New York Court of Appeals is undeniably in agreement with the United States Supreme Court’s position that “[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses[.]” Id. at 323-324. In Brill v. City of New York, 2 N.Y.3d 648 (2004), Judge Kaye explained that summary judgment serves to “avoid needless litigation cost and delay” in meritless cases, thereby providing “a great benefit both to the parties and to the overburdened New York State trial courts[.]” Brill, 2 N.Y.3d at 651 (citing Siegel, NY Prac §§ 278-279, at 438-44 [3d ed]; Weinsten-Korn Miller, NY Civ. Prac P 3212.01, at 32-157).
This begs the question: if a record is void of evidence necessary to sustain a plaintiff’s burden at trial, why waste additional resources proceeding to trial? Doing so would seem to undercut the very purpose of summary judgment as a pre-trial disposition.
This clash between policy and practice is particularly visible in asbestos litigation, the largest mass tort in the history of the New York State court system. Given the sheer volume of asbestos cases filed in the State of New York, and the unusually high number of defendants in each of these cases, eliminating barriers to the disposal of factually unsupported claims would seem to serve the interests of the “overburdened New York State trial courts.” Brill, 2 N.Y.3d at 651. Nonetheless, in the past few years the First Department has actually reinforced such barriers, requiring defendants to affirmatively prove - virtually beyond a reasonable doubt - that their products did not cause a plaintiff to be exposed to asbestos. See Koulermos v. A.O. Smith Water Prods., 137 A.D.3d 575 (1st Dept. 2016); Ricci v. A.O. Smith Water Prods., 143 A.D.3d 516 (1st Dept. 2016); Matter of New York City Asbestos Litig. (Berensmann), 122 A.D.3d 520 (1st Dept. 2014); Matter of New York City Asbestos Litig. (DiSalvo), 123 A.D.3d 498 (1st Dept. 2014).
Because of the latency of asbestos-related diseases, the acts or omissions often alleged to have caused a particular plaintiff’s injury typically occurred decades before the suit is filed. As such, corporate representatives with personal knowledge of a defendant’s manufacturing, sales and/or distribution practices are frequently unidentifiable; similarly, records of actual sales are often unavailable. Consequently, present-day corporate representatives tasked with confirming or denying a plaintiff’s claims of exposure to a company’s allegedly asbestos-containing products are hamstrung, left to rely only on a paucity of available records, if any, and knowledge of past corporate practices obtained through job experience. Recently, several affidavits of corporate representatives attempting to satisfy defendants’ burden on summary judgment have been flatly rejected by the courts as conclusory and insufficient to meet the movant’s burden.
In DiSalvo, the First Department affirmed the trial court’s denial of defendant Neles-Jamesbury Inc.’s summary judgment motion because it “failed to meet its initial burden of establishing prima facie that its product could not have contributed to the causation of plaintiff’s asbestos-related injury[.]” DiSalvo, 123 A.D.3d at 499. The plaintiff had testified to working with Neles-Jamesbury valves in the 1970s at unidentified work sites. In support of its summary judgment motion, Neles-Jamesbury submitted an affidavit of a former employee and argued that the plaintiff could not have been exposed to Neles-Jamesbury valves in the 1970s, because Neles-Jamesbury, Inc. did not exist until 1990. See DiSalvo v. A.O. Smith Water Prods. Co., 2013 N.Y. Misc. LEXIS 4045 at *4 (Sup. Ct., New York County Sept. 11, 2013). In evaluating the affidavit for summary judgment purposes, the trial court noted that “there is no documentary evidence submitted herein to support the defendant’s assertion that ‘Neles-Jamesbury, Inc.’ did not exist during the 1970’s when Mr. DiSalvo claims to have been exposed to ‘Neles-Jamesbury’ valves.” Id. In affirming the denial of summary judgment, the First Department held that the trial court properly rejected the affidavit as “conclusory and without a specific factual basis[.]” DiSalvo, 123 A.D.3d at 499.
Similarly, in DeMartino v. Aurora Pump Co., 2016 N.Y. Misc. LEXIS 4108 (Sup. Ct., New York County, Oct. 27, 2016), the Supreme Court, New York County, denied defendant Aurora Pump Co.’s motion for summary judgment because it “failed to demonstrate that its pumps […] ‘could not have contributed to the causation of plaintiff’s injury[.]’” Id. at *8 (citing Matter of New York City Asbestos Litig. (Berensmann), 122 A.D.3d 520 (1st Dept. 2014); Reid v. Georgia-Pacific Corp., 212 A.D.2d 462 (1st Dept. 1995); DiSalvo,supra. In that case, the plaintiff claimed exposure to asbestos by virtue of his proximity to a coworker changing external flange gaskets on pumps manufactured by Aurora. He testified that an unidentified individual told him that the flange gaskets contained asbestos, and that they were manufactured by Aurora.
In support of its motion for summary judgment, Aurora submitted an affidavit from its corporate representative, an Engineering Process Manager who joined the company in 1979 and who affirmed that Aurora did not sell, design, manufacture or specify asbestos-containing flange gaskets for use with its pumps. The court rejected the affidavit as “conclusory” because, with respect to Aurora’s business practices prior to him joining the company in 1979, the corporate representative “does not acquire personal knowledge based on his review of unspecified documents and conversations[.]” Id. at *8-9.
The DiSalvo and DeMartino decisions highlight the difficulty - and often the impossibility - facing asbestos defendants on summary judgment motions. In order to succeed, they must prove a negative, and do so beyond a shadow of a doubt. In DiSalvo, a corporate representative’s sworn statement that the company did not exist at the time of alleged exposure was deemed insufficient in the absence of corroborating documentary evidence. In DeMartino, the person with most knowledge of the defendant’s business practices was deemed incapable of representing what the company did or did not do prior to his arrival.
This troublesome trend of requiring asbestos defendants to prove a negative on summary judgment expanded upstate with the O’Connor decision. In that case, the plaintiff claimed that she developed pleural mesothelioma as a result of her work with laboratory equipment at the Westchester County Department of Labs and Research (“WCDLR”) between 1975 and 1979. O’Connor, 2017 N.Y. App. Div. LEXIS 5355 at *2.Three of the defendants (Fisher Scientific Company, LLC, Thomas Scientific, Inc., and VWR International, LLC) (the “defendants”) were alleged to have supplied asbestos-containing products to WCDLR. Id. Certain former WCDLR employees, including the plaintiff, testified that asbestos-containing products were present in the lab during the relevant time period, but could not state that the defendants’ names, trademarks or logos appeared on those products. Id. at *4. However, certain deponents testified that they consulted defendants’ supply catalogs (as well as supply catalogs for other companies) to place orders for these types of products. Id. One former employee testified that WCDLR had contracts with two of the defendants, and another testified to having purchased supplies from the defendants on a regular basis. Id. at *4-5. Fisher Scientific’s interrogatory responses stated that it had no records of sales to WCDLR, which it qualified by pointing to the number of decades that had passed since the events in question and its adherence to standard records retention policies. Id. at *4.
The trial court granted each defendant’s summary judgment motion, concluding that the plaintiffs had failed to adequately identify any of the defendants as a supplier of asbestos-containing products to which the plaintiff was exposed. The Third Department reversed, stating that the defendants had failed to prove that their products could not have caused the plaintiff’s illness and that they could not rely on gaps in the plaintiff’s proof to establish entitlement to summary judgment. Id. at *5. The Court specifically found that Fisher Scientific’s lack of documentation of sales did not establish that it did not sell asbestos-containing products to WCDLR. Id.
The element of its decision and order which perhaps most strongly demonstrates the near impossibility of an asbestos defendant’s burden on a summary judgment motion is the Court’s rationale for rejecting VWR’s separate argument as to specific causation. As part of its motion, VWR argued that the plaintiff was incapable of establishing specific causation pursuant to Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), which requires a plaintiff in a toxic tort case to offer a scientific expression of how exposure to a particular defendant’s product is capable of contributing to the development of the plaintiff’s disease. The O’Connor Court rejected this argument, holding that “VWR had the initial burden of establishing that O’Connor lacked the necessary degree of exposure to its asbestos-containing products to cause her illness, and VWR offered no such proof.” Id. at *6. Logically, without any information confirming that the plaintiff was ever actually in contact with any of its products, VWR could not be expected to possess information regarding the level of exposure to asbestos released from its products, or whether such level was sufficient to contribute to the development of the plaintiff’s disease. With no factual predicate for quantifiable exposure, proving that an unidentifiable level of exposure could not cause the subject disease is a literal impossibility.
As the asbestos litigation continues to age, with the events at issue having occurred long before the advent of computer technology and advanced recordkeeping practices, a corporate defendant’s ability to confirm or deny allegations levied against it will continue to erode. The volume of asbestos lawsuits filed in New York does not appear to be dwindling, however, placing continued pressure on the trial court dockets. In the asbestos litigation, where dozens of defendants are sued in each case, summary judgment would seem to be a desired and effective tool for separating the wheat from the chaff, allowing only the provable cases to proceed to trial, in keeping with the firmly-rooted policies at the core of the summary judgment procedure. Recent applications of the summary judgment standard appear to be doing just the opposite: ignoring the sufficiency (or lack thereof) of plaintiffs’ proofs and requiring defendants to meet a burden that is incapable of being satisfied.

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