Public Service Mutual Insurance Company et al., Respondents.
Anthony T. Antinozzi, Corporation Counsel, for appellant.
Sidney Advocate for Public Service Mutual Insurance Company, respondent.
Frank H. Connelly for remaining respondents.
Judges JASEN, GABRIELLI, JONES, WACHTLER and STEVENS concur; Judge RABIN taking no part.
In this action to recover on a surety bond given to secure timely completion of some six buildings, the City of Rye, as obligee under the bond, seeks to recover the face amount of $100,000. The surety and the developers are defendants. Special Term denied the city's motion for summary judgment, and a divided Appellate Division affirmed the denial. In his concurring opinion at the Appellate Division,  Mr. Justice SHAPIRO reasoned that the bond was penal in nature and therefore not enforceable. The dissenters, in an opinion by Mr. Justice HOPKINS, would have sustained the city's contention that, as a governmental entity pursuing its governmental responsibilities, it had the power, without violating any public policy, to exact a substantial bond to secure performance of obligations imposed on a developer by the zoning ordinance and action taken under it.
The order of the Appellate Division denying plaintiff city's motion for summary judgment should be affirmed. The bond of $100,000 posted by the developers with the city to ensure completion of the remaining six "peripheral" buildings by a date certain did not reflect a reasonable estimate of probable monetary harm or damages to the city, but a penalty, and, in the absence of statutory authority for the penal bond, may not be recovered upon.
The developers, under a plan approved by the City Planning Commission, had constructed six luxury co-operative apartment buildings and were to construct six more. In order to obtain certificates of occupancy for the six completed buildings the developers were required to post a bond with the city to ensure completion of the remaining six buildings. By letter agreement with the city in the fall of 1967, they agreed to post a $100,000 bond and to pay $200 per day for each day after April 1, 1971 that the six remaining buildings were not completed, up to the aggregate amount of the bond. More than 500 days have passed without the additional buildings having been completed within the time limit. The city seeks to recover the entire $100,000 amount of the bond.
Concededly, no statute authorizes the city to exact a penalty or forfeiture from the developers. If there were such a statute, the statutory penalty would undoubtedly be upheld (see, e.g., Lyman v. Perlmutter, 166 N.Y. 410, 413-415; Clark v. Barnard, 108 U. S. 436, 461; see, also, United States v. Zerbey, 271 U. S. 332, 340, and cases cited). Hence, general principles of contract law governing the enforceability of liquidated damage clauses should apply (cf. Priebe & Sons v. United States, 332 U. S. 407, 411; see 5 Williston, Contracts [3d ed.], § 775B, at p. 664). The sole issue, then, becomes whether the agreement exacted from the developers and the conditional bond supplied provide for a  penalty or for liquidated damages. If the agreement provides for a penalty or forfeiture without statutory authority, it is unenforceable. Where, however, damages flowing from a breach are difficult to ascertain, a provision fixing the damages in advance will be upheld if the amount is a reasonable measure of the anticipated probable harm (Ward v. Hudson Riv. Bldg. Co., 125 N.Y. 230, 235; Restatement, Contracts, § 339; 5 Corbin, Contracts, §§ 1059, 1063). If, on the other hand, the amount fixed is grossly disproportionate to the anticipated probable harm or if there were no anticipatable harm, the provision will not be enforced.
The harm which the city contends it would suffer by delay in construction is minimal, speculative, or simply not cognizable. The city urges that its inspectors and employees will be required to devote more time to the project than anticipated because it has taken extra years to complete. It also urges that it will lose tax revenues for the years the buildings are not completed. It contends, too, that it is harmed by a continuing violation of the height restrictions of its zoning ordinance. This is entailed because the 12 buildings in the entire complex vary in height between two and four stories; the ordinance sets a maximum average height of 30 feet for the complex; and the taller buildings, those higher than the allowable average, were built first. Only after all of the structures in the complex are built will the project comply with the average height requirement of the ordinance.
The most serious disappointments in expectation suffered by the city are not pecuniary in nature and therefore not measurable in monetary damages. The effect on increased inspectorial services or on tax revenue are not likely to be substantial and, in any event, are not developed in the record on summary judgment. There is nothing to show that either the sum of $200 per day or the aggregate amount of the bond bear any reasonable relationship to the pecuniary harm likely to be suffered or in fact suffered.
There is, as noted, no statutory authority for the city to exact harsh penal bonds from developers who are perforce dependent on approvals by local officials at the various stages of construction, and after construction for certificates of occupancy. For  municipalities, without statutory authorization or restriction, to condition perhaps arbitrarily the grant of building permits or certificates of occupancy on large penalty bonds raises potential for grave abuse. A developer, especially an outside developer, is rarely in a position to bargain on an equal basis with local officials, after completion of buildings rendered useless and an economic drain without a certificate of occupancy. Whether, and under what circumstances, the drastic remedy of penal bonds may be exacted is a matter best left to legislated authority, standards, and limitations.
Developers ask not only that the denial of summary judgment to the city be affirmed, but that summary judgment be granted to defendants dismissing the city's complaint. Since the city by this action sought, not actual damages, but only to recover the face amount of the bond, for the reasons discussed above, defendants perhaps might have been entitled to judgment dismissing the complaint. In denying the city's motion for summary judgment, the motion court and perhaps the Appellate Division, could have, but did not, grant summary judgment for defendants (see CPLR 3212, subd. [b]). Defendants, however, took no appeal from that determination. This court has no power to grant defendants, respondents on this appeal, affirmative relief (People v. Consolidated Edison Co. of N. Y., 34 N Y 2d 646, 648).
Accordingly, the order of the Appellate Division should be affirmed, without costs, and the question certified by that court answered in the affirmative.
Original Item: "Rye v. Pub. Serv. Mut. Ins. Co."
Lineage of: Rye v. Pub. Serv. Mut. Ins. Co.


(a) Several considerations support the Court’s holding. First, because AEDPA’s “statute of limitations defense … is not ‘jurisdictional,’ ” Day v. McDonough , 547 U. S. 198 , it is subject to a “rebuttable presumption” in favor “of equitable tolling,” Irwin v. Department of Veterans Affairs , 498 U. S. 89 . That presumption’s strength is reinforced here by the fact that “equitable principles” have traditionally “governed” substantive habeas law. Munaf v. Geren , 553 U. S. 674 , ___, and the fact that Congress enacted AEDPA after Irwin and therefore was likely aware that courts, when interpreting AEDPA’s timing provisions, would apply the presumption, see, e.g., Merck & Co. v. Reynolds , 559 U. S. ___, ___. Second, §2244(d) differs significantly from the statutes at issue in United States v. Brockamp , 519 U. S. 347 , and United States v. Beggerly , 524 U. S. 38 , in which the Court held that Irwin’ s presumption had been overcome. For example, unlike the subject matters at issue in those cases — tax collection and land claims—AEDPA’s subject matter, habeas corpus, pertains to an area of the law where equity finds a comfortable home. See Munaf, supra, at ___. Brockamp, supra, at 352, distinguished. Moreover, AEDPA’s limitations period is neither unusually generous nor unusually complex. Finally, the Court disagrees with respondent’s argument that equitable tolling undermines AEDPA’s basic purpose of eliminating delays in the federal habeas review process, see, e.g., Day, supra, at 205–206. AEDPA seeks to do so without undermining basic habeas corpus principles and by harmonizing the statute with prior law, under which a petition’s timeliness was always determined under equitable principles. See, e.g., Slack v. McDaniel, 529 U. S. 473 . Such harmonization, along with the Great Writ’s importance as the only writ explicitly protected by the Constitution, counsels hesitancy before interpreting AEDPA’s silence on equitable tolling as congressional intent to close courthouse doors that a strong equitable claim would keep open. Pp. 12–16.
(b) The Eleventh Circuit’s per se standard is too rigid. A “petitioner” is “entitled to equitable tolling” if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing. Pace v. DiGuglielmo , 544 U. S. 408 . Such “extraordinary circumstances” are not limited to those that satisfy the Eleventh Circuit’s test. Courts must often “exercise [their] equity powers … on a case-by-case basis,” Baggett v. Bullitt , 377 U. S. 360 , demonstrating “flexibility” and avoiding “mechanical rules,” Holmberg v. Armbrecht , 327 U. S. 392 , in order to “relieve hardships … aris[ing] from a hard and fast adherence” to more absolute legal rules, Hazel-Atlas Glass Co. v. Hartford-Empire Co. , 322 U. S. 238 . The Court’s cases recognize that equity courts can and do draw upon decisions made in other similar cases for guidance, exercising judgment in light of precedent, but with awareness of the fact that specific circumstances, often hard to predict, could warrant special treatment in an appropriate case. Coleman v. Thompson , 501 U. S. 722 , distinguished. No pre-existing rule of law or precedent demands the Eleventh Circuit’s rule. That rule is difficult to reconcile with more general equitable principles in that it fails to recognize that, at least sometimes, an attorney’s unprofessional conduct can be so egregious as to create an extraordinary circumstance warranting equitable tolling, as several other federal courts have specifically held. Although equitable tolling is not warranted for “a garden variety claim of excusable neglect,” Irwin, supra, at 96, this case presents far more serious instances of attorney misconduct than that. Pp. 16–19.


text:
…analogous to racism, sexism or ageism, [and] sees persons with disabilities as being less worthy of respect and consideration, less able to contribute and participate, or of less inherent value than others. Ableism may be conscious or unconscious, and may be embedded in institutions, systems or the broader culture of a society. It can limit the opportunities of persons with disabilities and reduce their inclusion in the life of their communities.
Discrimination against people with mental health or addiction issues is often linked to prejudicial attitudes, negative stereotyping, and the overall stigma surrounding mental health and addictions. All of these concepts are interrelated. For example, stereotyping, prejudice and stigma can lead to discrimination. The stigma surrounding mental health and addictions can also be an effect of discrimination, ignorance, stereotyping and prejudice.
Where stigma, negative attitudes and stereotyping result in discrimination, they will contravene the Code. Organizations and individuals have a legal obligation under the Code to not discriminate against people with mental health or addiction issues, and to eliminate discrimination when it happens. These obligations apply in situations where discrimination is direct and the result of a person’s internal stereotypes or prejudices. They also apply when discrimination is indirect and may exist within and across institutions because of laws, policies and unconscious practices.
Stigma, negative attitudes and stereotypes can lead to inaccurate assessments of people’s personal characteristics. They may also lead institutions to develop policies, procedures and decision-making practices that exclude or marginalize people with mental health disabilities and addictions.
There are a number of prevalent stereotypes about people with mental health disabilities and addictions. For example, people with mental health disabilities are often characterized as being violent.
Example: A man with a mental disability lived in a trailer park with his mother. The disability resulted in some “peculiar” but “harmless” behaviour. The owner began to be frightened of the man because of his perceived mental disability, and eventually warned other tenants to protect themselves and not provoke him. Otherwise harmless actions began to be interpreted as threatening. For example, the owner received a letter from the tenant asking her to repair a potential gas leak, and instead of investigating, she viewed him as “crazy” and dangerous, believing he might blow up his trailer. Eventually, he and his mother were evicted. A human rights tribunal concluded that there was “no reliable evidence” that the claimant posed a threat. The respondent sought the tenant’s eviction because of her perceptions and misconceptions about his mental disability, and based on unfounded and stereotypical views, she concluded the tenant was a threat to the safety of herself and other residents. This was found to be discriminatory.
Stereotypes related to violence persist even though studies show that most people with mental health disabilities are no more likely to engage in violent behaviour than the general population. In fact, research shows that people with serious mental illnesses are more likely to be victims of violence themselves, than other members of the general population.
People with mental health issues may also be perceived to lack the capacity to make decisions in their own best interests, even where this may not be the case. They are often seen as “childlike” and in need of help. These perceptions may result in paternalistic attitudes and practices that can create barriers.
Certain types of disabilities are more stigmatized than others due to the stereotypes associated with them. People with schizophrenia or drug addictions may experience particularly negative attitudes from others based on beliefs about dangerousness, anti-social behaviour or risk. People with addictions may also experience particularly negative behaviour because of assumptions about how much they are personally responsible for their disability, and assumptions about their involvement with crime.
Because of the extreme stigma around certain types of mental health disabilities and addictions, many people may be afraid to disclose their disability to others. They may worry about being labelled, experiencing negative attitudes from others, losing their jobs or housing, or experiencing unequal treatment in services after disclosing a mental health issue or addiction. Fear of discrimination can also result in people not seeking support for a mental health issue or addiction.
[M]any persons with mental health disabilities, particularly those who have been homeless, shared experiences which demonstrated that they had been subject to heavy judgment and negative assumptions when dealing with legal systems. Lack of supportive services for persons with mental health disabilities, together with stigma and fear about these disabilities may lead to increased contact with police and may contribute to the criminalization of persons with mental health disabilities, an issue of great concern to many participants.
Organizations must take steps to address negative attitudes, stereotypes and stigma and to make sure they do not lead to discriminatory behaviour toward or treatment of people with psychosocial disabilities.
 Law Commission of Ontario, Advancing Equality for Persons with Disabilities Through Law, Policy and Practice: A Draft Framework (March 2012) at 3, available online at: www.lco-cdo.org/disabilities-draft-framework.pdf.
 In this context, prejudices may be defined as deeply held negative perceptions and feelings about people with mental health or addiction issues.
 Stereotyping is when generalizations are made about individuals based on assumptions about qualities and characteristics of the group they belong to. The Supreme Court of Canada has recently said “Stereotyping, like prejudice, is a disadvantaging attitude, but one that attributes characteristics to members of a group regardless of their actual capacities.” Quebec (Attorney General) v. A,  1 S.C.R. 61 at para. 326.
 Christianson v. Windsor Police Service, 2010 HRTO 229 (CanLII) at para. 11. But see also Aberdeen v. Governing Council of the University of Toronto, 2013 HRTO 138 (CanLII).
 Turner v. 507638 Ontario, 2009 HRTO 249 (CanLII).
 Petterson v. Gorcak (No. 3) (2009), 69 C.H.R.R. D/166, 2009 BCHRT 439. See also Devoe v. Haran, supra, note 35.
 CMHA, Ontario, Violence and Mental Health: Unpacking a Complex Issue, supra, note 18.
 Gerald B. Robertson, “Mental Disability and Canadian Law” (1993), supra, note 12.
 For example, a psychiatric model of addiction that was popular between the 1940s and 1970s attributed the individual’s addiction to personality “flaws.” Caroline J. Acker, “Stigma or Legitimation? A Historical Examination of the 27 Social Potentials of Addiction Disease Models” (1993) 25:3 J. of Psychoactive Drugs 202, as cited by the Centre for Addiction and Mental Health, The Stigma of Substance Abuse: A Review of the Literature, supra, note 4 at 7.
 Neasa Martin & Valerie Johnston, A Time for Action: Tackling Stigma and Discrimination: Report to the Mental Health Commission of Canada (2007), supra, note 4 at 11.
 Law Commission of Ontario, A Framework for the Law as It Affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Toronto: September 2012) at 42, available online at: www.lco-cdo.org/persons-disabilities-final-report.pdf.

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CASE NAME: Calzaturificio Claudia S.n.c. v. Olivieri Footwear Ltd.
An Italian manufacturer of shoes, plaintiff, alleged that a buyer located in the United States, defendant, had agreed to purchase shoes but had failed to pay the price for four lots duly delivered "ex works." The plaintiff brought a court action for the price of these shoes and moved for summary judgment. The buyer responded that plaintiff was not entitled to summary judgment because there were material facts in dispute. The buyer denied that there was a contractual relationship, that it had agreed to delivery "ex works," and that it had received the goods at issue. It also counterclaimed for damages on the ground that any goods it had received were either delivered late or nonconforming.
The issue before the Court was what evidence it could consider when acting on a motion for summary judgment.
Recognizing that the CISG differs from domestic U.S. law rules on the need for a writing and the evidentiary weight to be given written terms, the Court stated that it could consider evidence of statements made during negotiations, article 8(3) CISG, and that the parties are bound by any usage to which they agreed and any practices between themselves which they have established, article 9(1) CISG. The Court concluded that material facts were in dispute as to all matters denied by the defendant and the court therefore did not grant summary judgment for the plaintiff.
The CISG interpretations handed down by the Court, e.g., "contracts governed by the CISG are freed from the limits of the parol evidence rule and there is a wider spectrum of admissible evidence to consider in construing the terms of the parties' agreement".
The complete text of the Court's ruling may be found in a later portion of this case presentation. A summary of the facts and contentions of the parties and excerpts of most of the Court's rulings on issues relevant to the CISG are provided below.
Seller from Italy invoiced buyer from the United States for sales of shoes. The invoices were marked "Ex works" (Ex works = seller fulfils his obligation to deliver when he has made the goods available at his factory). Alleging that the goods were so delivered but not paid for, seller moved for Summary Judgment. "[Buyer] contests (1) the existence of a contractual relationship with [seller]; (2) that it agreed to delivery "ex works;" and (3) that it received the goods at issue. It further argues that any goods received were either late or nonconforming, thus resulting in a breach by [seller]." In support of its position, buyer submitted several faxes (which seller contends are not authentic) and an affidavit denying both the existence of an agreement and receipt of any goods.
"The transactions . . . are governed by the [CISG]. . . . As the contractual relationship between [seller], an Italian shoe manufacturer, and [buyer], a United States corporation, did not provide for a choice of law, the CISG controls.
"The caselaw interpreting and applying the CISG is sparse. See, e.g., Helen Kaminski Pty., Ltd. . . . (stating that there is 'little to no case law on the CISG in general'); Filanto, S.p.A. . . . (acknowledging that there is virtually no United States caselaw interpreting the CISG). Thus, the Court must 'look to its language and 'to the general principles' upon which it is based.' Delchi Carrier SpA . . . (citing CISG Art. 7(2)). Caselaw interpreting Article 2 of the Uniform Commercial Code ('UCC') may also be used to interpret the CISG where the provisions in each statute contain similar language. See Delchi Carrier SpA . . . However, the Second Circuit [Court of Appeals] has cautioned that caselaw interpreting UCC provisions is not 'per se applicable.' Id.; see also Orbisphere Corp v. United States . . . Although the CISG is similar to the UCC with respect to certain provisions, it differs from the UCC with respect to others, including the UCC's writing requirement for a transaction for the sale of goods and parol evidence rule. Where controlling provisions are inconsistent, it would be inappropriate to apply UCC caselaw in construing contracts under the CISG. [full citations omitted here and below].
"In the instant case, there is no formal written contract and there are no purchase orders setting forth the terms of the parties' sales transactions . . . [Buyer] argues that the absence of purchase orders demonstrates that [buyer] never entered into any agreement for the purchase of shoes manufactured by [seller]. . . . There is no basis in law for this contention and [buyer] cites none. Indeed, it is undisputed that the [seller] and [buyer] had agreed upon and conducted several successful transactions for the sale of shoes, none of which are at issue in this suit, without the use of purchase orders. . . .
"Under certain circumstances, invoices may be viewed as contracts and, in such cases, under the UCC, the parol evidence rule prohibits evidence of contradictory oral agreements that were made prior to the receipt of the invoice. . . .
"Unlike the UCC, under the CISG a contract need not be evidenced by a writing. . . . See CISG, Art. 11 ('A contract of sale need not be . . . evidenced by a writing and is not subject to any other requirement as to form'). According to the CISG, a contract 'may be proved by any means . . .' and 'any evidence that may bear on the issue of formation is admissible.' Id. Such evidence may include oral statements made prior to a writing [citing Dimatteo, 23 Syracuse J. Int'l L. & Com. 67, at 103 (1997)]. Under the CISG, 'prior oral representations regarding the quality and performance would be enforceable.' Id. Thus, contracts governed by the CISG are freed from the limits of the parol evidence rule and there is a wider spectrum of admissible evidence to consider in construing the terms of the parties' agreement [citing Dimatteo, 22 Yale J. Int'l L. 111, at 127 (1997)]. The CISG's 'lack of a writing requirement allows all relevant information into evidence even if it contradicts the written documentation.' Id. at 108. Under the CISG, 'any relevant statement made in negotiations prior to the signing of the contract are [sic] admissible into evidence." Id. at 103 citing . . . Murray . . . 119 Purchasing 30 (Oct. 19, 1995).
"Consequently, the standard UCC inquiry regarding whether a writing is fully or partially integrated has little meaning under the CISG and courts are therefore less constrained by the 'four corners' of the instrument in construing the terms of the contract. 23 Syracuse J. Int'l L. & Com. 67, at 108. Evidence concerning any negotiations, agreements, or statements made prior to the issuance of the invoices in issue may be considered in determining the scope of the parties' agreement. Further Article 9 of the CISG provides that 'the parties are bound by any usage to which they have agreed and by any practices which they have established.' CISG Article 9(1).
Commenting on seller's position that "the invoice terms are unambiguous", the Court states: "[T]he CISG allows for the use of extrinsic evidence in determining the parties' agreement and intent. . . . The record . . . contains faxes from the [buyer] disavowing certain provisions in the invoices and/or questioning whether there was proper performance under the parties' agreement. This case is therefore distinguishable from others in which invoices were found to be unambiguous, binding contracts [citing a series of UCC cases].
"We do not know what the terms of the oral offer and acceptance were or whether [seller's] invoices modified the terms orally agreed upon. Under the CISG, 'all material terms of [an] acceptance should mirror the offer.' 23 Syracuse J. Int'l L. & Com. at 108. Article 19 of the CISG provides that 'a reply to an offer which purports to be an acceptance but contains additions . . . or other modifications is a rejection of the offer and constitutes a counter-offer' if the modification materially alters the terms of the offer. CISG, Article 19(1). Material modifications, including the alteration of delivery terms, often occur in 'the routine exchange of the buyer's printed purchase order and the seller's printed acknowledgment of sale form.' See Legal Analysis of the United Nations Convention on Contracts for the International Sale of Goods, (1980), commentary on Article 19, 'Acceptance with Modifications,' attached to the CISG. Under the CISG, 'no contract results from such an exchange if the purported acceptance contains additional or different terms that materially alter the offer.' Id."
". . . [Seller] has simply not submitted sufficient evidence to demonstrate conclusively the parties' prior practices, and questions of fact remain as to the agreed upon terms of their earlier transactions.
" . . . The evidence is . . . ambiguous . . . The resolution of these factual issues must be reserved for trial.
. . . Based upon the record as it now stands, the Court is unable to determine exactly what happened with regard to this shipment. Thus, genuine issues of material fact exist with regard to the delivery and acceptance of the invoiced goods. Issues of fact exist with respect to other invoices as well. . . .
"There is a genuine issue of material fact as to whether the shipper was, at all times, the agent of the [buyer]. . . .
"Given the factual disputes as to whether 'ex works' was an agreed upon term of the contract, whether the parties' agreement was accurately reflected in the invoices, whether delivery was satisfactorily performed, and whether the shippers were in all cases [buyer's] agents, summary judgment is inappropriate and [seller's] motion is denied. . . ."
For a higher court ruling on facts almost "on all fours" with the facts of this case and with an identical ratio decidendi, without this court's approval of dicta that where the CISG and the UCC are similar UCC case law can be used to help interpret the CISG, and with more extensive reasoning on why CISG Article 8 trumps the U.S. parol evidence rule, see MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino (11th Cir. 29 June 1998).
For CALZATURIFICIO CLAUDIA S.N.C., plaintiff: Eduardo Luis Tabio, Fox & Horan, New York, N.Y.
For OLIVIERI FOOTWEAR LTD., defendant: Mitchell S. Garber, Garber, Klein & Nelson, Lake Success, N.Y.
For OLIVIERI FOOTWEAR LTD., counter-claimant: Mitchell S. Garber, Garber, Klein & Nelson, Lake Success, N.Y.
For CALZATURIFICIO CLAUDIA S.N.C., counter-defendant: Eduardo Luis Tabio, Fox & Horan, New York, N.Y.
Plaintiff, Calzaturificio Claudia S.n.c. ("Claudia") brought this action against defendant Olivieri Footwear Ltd. ("Olivieri"), to recover payment for shoes manufactured by plaintiff and delivered to defendant. Defendant counterclaimed for breach of contract, claiming that plaintiff failed to deliver certain goods, and that the goods that were delivered were either late or nonconforming. The parties consented to trial before a United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. Currently before the Court is plaintiff's Motion for Summary Judgment based on its breach of contract claim. For the reasons that follow, the motion is denied.
Plaintiff is a shoe manufacturer organized under the laws of the Republic of Italy, with its principal place of business in Italy. See Plaintiff's Complaint, dated October 16, 1996 ("Compl."), at P 1. Defendant is a corporation organized under the laws of the State of New York, with its principal place of business in New York. Id. at PP 1-2; Defendant's Answer, dated December 13, 1996 ("Answer"), at P 2. Plaintiff contends that its business relationship with Olivieri first began in the Spring of 1993, when defendant approached plaintiff to negotiate the purchase of shoes. See Declaration of Francesco Zamboni in Support of Claudia's Motion for Summary Judgment, dated June 26, 1997 ("Zamboni Decl. 1"), at P 3. During the course of the parties' relationship, Claudia alleges that it engaged in thirteen transactions with Olivieri, in which plaintiff manufactured and delivered shoes to Olivieri in accordance with the terms set forth in the respective invoices detailing each order. Id. at PP 4-5, 7. The present dispute arises from Olivieri's failure to pay for the goods reflected in four invoices. Claudia claims that it is entitled to payment in the approximate amount of LIT (Italian Lira) 131,597,820 ($ 80,000), plus interest, for the shoes identified in the four unpaid invoices and the value added tax ("V.A.T.") on certain of the goods.
It is undisputed that there is no formal written contract defining the terms of the four disputed transactions that gave rise to this litigation. Rather, plaintiff relies upon its invoices as evidencing the terms of Claudia and Olivieri's agreement. See Plaintiff's Memorandum of Law in Support of its Motion for Summary Judgment, dated June 26, 1997 ("Pl. Mem."), at 7-8. Plaintiff contends that the shipments covered by the invoices were made available to Olivieri in accordance with the delivery terms reflected in the invoices, were picked up by Olivieri's agents at Claudia's factory, and were accepted by Olivieri. (Zamboni Decl. 1 at PP 5, 8.) Plaintiff thus contends that Olivieri's failure to pay for the invoiced goods constitutes a breach of their contractual agreement.
In support of its breach of contract claim, plaintiff submitted the following four invoices: (1) no. 336, dated November 16, 1993, for shoes valued at LIT 38,250,000; (2) no. 372, dated December 14, 1993, for shoes valued at LIT 14,364,000; (3) no. 383, dated December 29, 1993, for shoes valued at LIT 77,418,000; and (4) no. 5, dated January 14, 1994, for shoes valued at LIT 36,696,000. See Exs. A, B, C, E, attached to Compl. Each of these invoices was marked "Merce Resa Ex Factory," which is literally translated as "Merchandise delivery ex works (or ex factory)." (Zamboni Decl. 1 at P 6.) "Ex works" or "ex factory" means that the seller's delivery obligation is merely to deliver the goods to the buyer at the seller's factory. See Appendix A at 18, attached to Pl. Mem.
Claudia argues that the inclusion of the term "ex works" in the invoices demonstrates that its obligations to Olivieri ended when Claudia made the shipments of shoes available for pick-up at its factory, and that Olivieri bore the responsibility for shipping the shoes. (Zamboni Decl. 1, at PP 5-6, 7; Compl. at 2.) Moreover, plaintiff asserts that the shippers to whom delivery was made were agents of Olivieri, and that it, Claudia, bore no responsibility for any late or incomplete deliveries. In support of this proposition, and in response to the Court's inquiry at oral argument, plaintiff submitted an affidavit attesting that defendant "always . . . paid the shipper for its services, and the shipper always acted as Olivieri's agent in the transactions." Zamboni Declaration, attached to Reply Declarations in Further Support of Claudia's Motion for Summary Judgment, dated February 5, 1998 ("Zamboni Decl. 2"), at P 2; see Zamboni Decl. 1, at P 8.
As evidence of plaintiff's performance, and in response to defendant's counterclaim that defendant never received the goods at issue, plaintiff submitted bills of lading which allegedly demonstrate that a shipper accepted and picked up each disputed invoice shipment. Each invoice references a corresponding bill of lading by number, and each referenced bill of lading bears the name and signature of the shipper, the exact time and date of pick-up, and a customs stamp, indicating that the shipment left Italy. See Exs. A, B, C, E, attached to Compl.; Exs. A, C, E, F, attached to Reply Declarations in Further Support of Claudia's Motion for Summary Judgment, dated September 25, 1997 ("Pl. Reply"). The bills of lading bear the same date as the corresponding invoices. Further, plaintiff has submitted a letter from the shipper Matricardi stating that it delivered the goods reflected in invoice nos. 383 and 5 to Olivieri in New York. See Ex. G, attached to Pl. Reply.
Defendant does not dispute that the term "ex works" appears on all of the contested invoices, nor does it dispute that "ex works" means "delivery at seller's factory." Nevertheless, defendant opposes this summary judgment motion, claiming that there remain disputed issues of material fact. Specifically, Olivieri contests (1) the existence of a contractual relationship with Claudia; (2) that it agreed to delivery "ex works;" and (3) that it received the goods at issue. It further argues that any goods received were either late or nonconforming, thus resulting in a breach by plaintiff. See Defendant's Memorandum of Law in Opposition to Motion for Summary Judgment, dated August 6, 1997 ("Def. Mem."), at 2-3, 6, 8.
In support of its position, defendant submitted several facsimiles ("faxes"), all of which plaintiff contends are not authentic and were never received by plaintiff. In a fax dated November 29, 1993, defendant complained of plaintiff's marking all invoices with "Franco Fabrica"("ex works") because it was not consistent with the "original agreement," which instead allegedly provided defendant with an opportunity to inspect and accept the merchandise first. See Ex. A, attached to Response to Plaintiff's Motion for Summary Judgment, dated August 6, 1997 ("Def. Response"). Defendant also reminded plaintiff in that fax that the parties had agreed not to use the shipper Matricardi, because defendant did not want to be responsible for that shipper's unreliability. Id.
In another fax, dated November 26, 1993, which specifically addressed invoice no. 336, defendant emphasized that its agent must inspect the goods and approve them prior to shipping. See Ex. B. attached to Def. Response. Defendant further demanded a bill of lading to document plaintiff's "release of goods." Id.
In faxes dated December 24, 1993 and January 10, 1994, defendant demanded proof of delivery for the goods listed in invoice no. 372. See Exs. C, D, attached to Def. Response. In a fax dated January 11, 1994, defendant demanded proof of delivery for the goods listed in invoice no. 383, claiming that the delivery was late. See Ex. E, attached to Def. Response. Defendant further stated that it only accepted merchandise totaling LIT 10,764,000 and not LIT 77,418,000, as indicated in invoice no. 383. Id.
Finally, in a fax dated June 28, 1994, defendant objected to plaintiff's inclusion of the term "Franco Fabrica" on invoice no. 5. See Ex. F, attached to Def. Response. Defendant stated in the fax that it did not agree to that term and that the "agreement was that instead of sitting on this (sic) shoes in your warehouse you use our services to sell them here in [the] states." Id. Defendant also asserted that it rejected 528 pairs of shoes, valued at LIT 12,936,000, that were reflected in invoice no. 5. See Ex. F, attached to Def. Response. Plaintiff's bill of lading, bearing the name and signature of the shipper, noted defendant's rejection of 528 pairs of shoes. See Ex. F, attached to Pl. Reply. Plaintiff does not dispute that these goods were rejected and points to the credit in invoice no. 13 for that exact amount. See Ex. F, attached to Compl.; Compl. at PP 25-26.
In addition, defendant submitted an affidavit of Michail Litvin, the principal owner of Olivieri, contesting factual allegations made by plaintiff. See Affirmation of Michail Litvin in Opposition to Plaintiff's Motion for Summary Judgment, dated August 6, 1997 ("Litvin Aff.") at P 1, attached to Def. Response. In his affidavit, Litvin denies that any agreement existed between Olivieri and Claudia. (Litvin Aff. at P 6.) Litvin also states that Olivieri did not receive any of the goods at issue and that the "ex works" provision on the contested invoices was not agreed to by Olivieri. Id. at PP 9-11. Litvin further claims that Olivieri's faxes requesting proof of delivery serve as evidence of nondelivery of the goods at issue. Id. at P 13.
Plaintiff moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Aldrich v. Randolph Cent. School Dist., 963 F.2d 520, 523 (2d Cir.), cert. denied, 506 U.S. 965, 113 S. Ct. 440, 121 L. Ed. 2d 359 (1992). While the Court must draw all reasonable inferences against the moving party in assessing whether a genuine issue of fact exists, the party opposing the motion may not simply rest on the allegations in its pleadings, but must present "specific facts," based upon personal knowledge or evidence that is otherwise admissible, showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138 (2d Cir. 1992). In deciding the motion, the Court may consider only that evidence that would be admissible at trial. Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994); Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir. 1993); International Knitwear Co. v. M/V Zim Canada, 1996 U.S. Dist. LEXIS 4488, No. 92 Civ. 7508 (PKL), 1996 WL 169360, at 1 (S.D.N.Y. Apr. 11, 1996). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when] he is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255, 106 S. Ct. at 2513. However, "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is 'no genuine issue for trial,' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968)), and summary judgment is appropriate.
In order to prevail on this motion, plaintiff must demonstrate that there are no genuine issues of material fact as to the terms of the parties' agreement, whether the parties agreed to be bound by the terms of the invoices, and whether plaintiff fulfilled all of its obligations under the parties' agreement.
The transactions in the instant case are governed by the United Nations Convention on Contracts for the International Sale of Goods ("CISG"), codified at 15 U.S.C.A. Appendix (West 1998). When two foreign nations are signatories to this Convention, as are the United States and Italy, the Convention governs contracts for the sale of goods between parties whose places of business are in these different nations, absent a choice-of-law provision to the contrary. See CISG, Article 1(1)(a); see also Delchi Carrier SpA v. Rotorex Corp., 71 F.3d 1024, 1027-28 (2d Cir. 1995) (applying CISG in contract dispute between Italian manufacturer and a New York corporation); Filanto, S.p.A. v Chilewich Int'l Corp., 789 F. Supp. 1229, 1237 (S.D.N.Y. 1992) (applying CISG in a contract dispute between an Italian footwear manufacturer and New York export-import company), appeal dismissed, 984 F.2d 58, 61 (2d Cir. 1993); Helen Kaminski Pty., Ltd. v. Marketing Australian Products, 1997 U.S. Dist. LEXIS 10630, Nos. M-47 (DLC), 96B46519-97-8072A, 1997 WL 414137, at 2 (S.D.N.Y. July 23, 1997). As the contractual relationship between plaintiff Claudia, an Italian shoe manufacturer, and defendant Olivieri, a United States corporation, did not provide for a choice of law, the CISG controls.
The caselaw interpreting and applying the CISG is sparse. See, e.g., Helen Kaminski Pty., Ltd., 1997 U.S. Dist. LEXIS 10630, 1997 WL 414137, at 3 (stating that there is "little to no case law on the CISG in general"); Filanto, S.p.A., 789 F. Supp. at 1237 (acknowledging that there is virtually no United States caselaw interpreting the CISG). Thus, the Court must "look to its language and 'to the general principles' upon which it is based." Delchi Carrier SpA, 71 F.3d at 1027 (citing CISG Art. 7(2)). Caselaw interpreting Article 2 of the Uniform Commercial Code ("UCC") may also be used to interpret the CISG where the provisions in each statute contain similar language. See Delchi Carrier SpA, 71 F.3d at 1027. However, the Second Circuit has cautioned that caselaw interpreting UCC provisions is not "per se applicable." Id.; see also Orbisphere Corp. v. United States, 13 C.I.T. 866, 726 F. Supp. 1344, 1355 n.7 (Ct. Int'l Trade 1989). Although the CISG is similar to the UCC with respect to certain provisions, it differs from the UCC with respect to others, including the UCC's writing requirement for a transaction for the sale of goods and parol evidence rule. Where controlling provisions are inconsistent, it would be inappropriate to apply UCC caselaw in construing contracts under the CISG.
Under certain circumstances, invoices may be viewed as contracts and, in such cases, under the UCC, the parol evidence rule prohibits evidence of contradictory oral agreements that were made prior to the receipt of the invoice. See Polygram, S.A., v. Enterprises, Inc., 697 F. Supp. 132, 135 (E.D.N.Y. 1988) (holding that invoices containing express "terms of sale" provisions were the final expression of the parties' agreement and could not be contradicted by evidence of a prior agreement); Battista v. Radesi, 112 A.D.2d 42, 491 N.Y.S. 2d 81, 81 (4th Dep't 1985) (holding that an invoice including names and addresses of the parties, the date and payment terms, a description, and the price for the goods, was intended to be the final expression of the parties' agreement and could not be contradicted by evidence of a prior oral agreement); Matthew Bender, & Co., Inc. v. Jaiswal, 93 A.D.2d 969, 463 N.Y.S.2d 78, 78 (3d Dep't 1983) (holding that invoices containing names and addresses of the parties, the date, payment and refund terms, and the price and description of goods, represented a final written expression of the parties' agreement and could not be contradicted by evidence of a prior agreement). But see Getz v. Eichner, 1997 U.S. Dist. LEXIS 9267, No. 96 Civ. 8304 (LBS) (AGS), 1997 WL 362318, at 3-4 (S.D.N.Y. July 1, 1997)(summary judgment denied on breach of contract claim where only written evidence of oral agreement was an unsigned invoice, which defendant denied receiving and which contained disputed terms). Accordingly, in cases governed by the UCC, where written documents evidencing the parties' agreement are unambiguous, summary judgment may be appropriate. See L.B. Foster Co. v. America Piles, Inc., et al., 1998 U.S. App. LEXIS 3086, F.3d , 1998 WL 88873, at 6 (2d Cir. Feb. 26, 1998); Schiavone v. Pearce, 79 F.3d 248, 252 (2d Cir. 1996) (summary judgment appropriate only where language of the contract is "wholly unambiguous"); accord John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 461 (2d Cir. 1994).
Unlike the UCC, under the CISG a contract need not be evidenced by a writing. See CISG, Art. 11 ("A contract of sale need not be . . . evidenced by a writing and is not subject to any other requirement as to form."). According to the CISG, a contract "may be proved by any means . . ." and "any evidence that may bear on the issue of formation is admissible." Id. Such evidence may include oral statements made prior to a writing. Larry A. Dimatteo, An International Contract Law Formula: The Informality of International Business Transactions Plus the Internationalization of Contract Law Equals Unexpected Contractual Liability, 23 Syracuse J. Int'l L. & Com. 67, at 103 (1997). Under the CISG, "prior oral representations regarding the quality and performance would be enforceable." Id. Thus, contracts governed by the CISG are freed from the limits of the parol evidence rule and there is a wider spectrum of admissible evidence to consider in construing the terms of the parties' agreement. Larry A. Dimatteo, The CISG and the Presumption of Enforceability: Unintended Contractual Liability in International Business Dealings, 22 Yale J. Int'l L. 111, at 127 (1997). The CISG's "lack of a writing requirement allows all relevant information into evidence even if it contradicts the written documentation." Id. at 108. Under the CISG, "any relevant statement made in negotiations prior to the signing of the contract are [sic] admissible into evidence." Id. at 103 citing John E. Murray, Jr., Different Laws Might Apply to Foreign Buys Under the UN Convention for the International Sale of Goods, 119 Purchasing 30 (Oct. 19, 1995).
Consequently, the standard UCC inquiry regarding whether a writing is fully or partially integrated has little meaning under the CISG and courts are therefore less constrained by the "four corners" of the instrument in construing the terms of the contract. 23 Syracuse J. Int'l L. & Com. 67, at 108. Evidence concerning any negotiations, agreements, or statements made prior to the issuance of the invoices in issue may be considered in determining the scope of the parties' agreement. Further, Article 9 of the CISG provides that "the parties are bound by any usage to which they have agreed and by any practices which they have established." CISG, Article 9(1).
Plaintiff argues that the invoice terms are unambiguous. At first glance, that appears to be true in that they provide the names and addresses of the parties, the date, a description of the items, the price for the goods, the terms for payment, and a method of delivery. Nevertheless, any inquiry regarding ambiguous/unambiguous contractual language is not very instructive in this case, where (1) there is no formal written contract, (2) plaintiff relies on invoices which it prepared unilaterally and which do not contain language evidencing, either explicitly or implicitly, that the invoices reflect the parties' final agreement, and (3) the CISG allows for the use of extrinsic evidence in determining the parties' agreement and intent. The record also contains faxes from the defendant disavowing certain provisions in the invoices and/or questioning whether there was proper performance under the parties' agreement. This case is therefore distinguishable from others in which invoices were found to be unambiguous, binding contracts. Compare Data Research Assocs., Inc. v. Computer Center, Inc., No. 84 Civ. 8334 (JFK), 1988 WL 140864, at 3 (S.D.N.Y. Dec. 21, 1988) (parties' intent to be bound by invoice terms was evidenced by invoice provision specifically stating that the invoice "will be forwarded to an attorney for collection" if goods not paid for in accordance with invoice terms); Polygram, S.A., 697 F. Supp. at 133 (defendant failed to make any written or oral objection to the terms of sale explicitly stated in the invoice until after the action was commenced); Community Bank v. Newmark & Lewis, Inc.,534 F. Supp. 456, 458-59 (E.D.N.Y. 1982) (invoices stated "acceptance of merchandise covered by this invoice represents buyer's agreement to meet the current terms and conditions of sale under which the order was entered. Title passes from buyer to seller upon seller's delivery to carrier . . . "; defendant admitted that it received the invoiced goods; and defendant did not produce any evidence that it proposed different terms or that it timely objected to the terms set forth in the invoices); Orbisphere Corp., 726 F. Supp. at 1345 (invoice contained express provisions stating that "title and risk of loss passes (sic) from the seller to the buyer on delivery of the merchandise to the carrier at the F.O.B. point indicated in the invoice"; "All prices are F.O.B. Haworth, N.J."; and "Orders are subject to acceptance only at seller's office in Haworth, N.J."); Battista, 491 N.Y.S.2d at 81 (defendant signed the invoice containing the payment terms and did not dispute that it received the invoiced goods); General Motors Acceptance Corp. v. Fairway Dodge Sales, Inc., 80 A.D.2d 740,437 N.Y.S.2d 171, 173 (sales contract explicitly stated that the writing "comprised the complete and exclusive statement of the terms of the agreement.").
A. Whether the parties agreed to delivery "ex works"
Defendant denies that the place of delivery was Claudia's factory and that Claudia never assumed responsibility for shipping. (Litvin Aff. at P 10.) Defendant further disputes that the phrase "ex works," which is contained in each of the invoices at issue, represented any agreement to accept delivery of goods at Claudia's factory. (Litvin Aff. at P 11.) In support of its contention, defendant submitted a fax, dated November 29, 1993, in which defendant timely objected to the invoice term "Franco Fabrica" (translated as Merchandise Delivery Ex Factory) and requested that the invoices be marked in accordance with "the way we agreed." (Ex. A, attached to Def. Response.) According to defendant, the parties' agreement was that the goods were to be inspected and accepted by defendant prior to shipment and that plaintiff was to comply with delivery dates. Id.; Litvin Aff. at P 12. Defendant submitted another fax dated June 28, 1994, in which defendant again objected to the term "Franco Fabrica," stating "it was not our agreement." (Ex. F. attached to Def. Response.) While it does not appear to the Court that the defendant's characterization of its "agreement" with plaintiff is necessarily inconsistent with the delivery term "ex works," on their face the faxes explicitly object to the inclusion of such terms in the invoices. Because defendant objected to the delivery terms, for purposes of the instant motion plaintiff's invoices alone cannot be viewed as the unambiguous embodiment of the agreement between the parties. Moreover, any inquiry into the parties' intentions must be reserved for trial. See Ronan Assocs., Inc. v. Local 94-94A-94B, Int'l Union of Operating Eng'rs, 24 F.3d 447, 449 (2d Cir. 1994) ("Under traditional principles of contract law, questions as to what the parties said, what they intended, and how a statement by one party was understood by the other are questions of fact . . .").
Viewing the record in a light most favorable to the defendant, the non-moving party, the Court is unable to conclude as a matter of law that defendant agreed to or intended to be bound by the invoice terms. See CISG, Art. 8(3) ("In determining the intent of a party . . . due consideration is to be given to all relevant circumstances of the case . . .").
Although Claudia alleges that it engaged in nine successful transactions with Olivieri, where goods were delivered "ex works," plaintiff has provided virtually no documentation with regard to the terms of these other transactions and defendant disputes that these transactions occurred. See Litvin Aff. at P 6. The only evidence submitted by Claudia in support of its course of dealing argument is invoice no. 236. Plaintiff failed to submit evidence as to the other "successful" transactions that Olivieri and Claudia allegedly engaged in between August 1993 and March 1994. Thus, even if defendant accepted the terms of invoice no. 236, it is questionable whether this one transaction is enough to establish a course of dealing. Plaintiff has simply not submitted sufficient evidence to demonstrate conclusively the parties' prior practices, and questions of fact remain as to the agreed upon terms of their earlier transactions.
Defendant disputes plaintiff's contention that defendant (1) never communicated to plaintiff that the invoiced goods were either not delivered or were delivered late, and (2) never indicated that it was dissatisfied with the quality of the invoiced goods. (Litvin Aff. at P14.) In support of its contention, defendant submitted several faxes, allegedly sent to plaintiff, that complained of the plaintiff's failure to provide defendant with proof of delivery for the invoiced goods. See Exs. C, D, E, attached to Def. Response. Moreover, three faxes indicated that the invoiced goods were late and at least one fax complained that the merchandise was of "inferior quality and contained obvious damages." (Ex. F. attached to Def. Response.) There is no evidence in the record regarding the time frame agreed upon for the delivery of goods. Thus, the Court cannot determine, as a matter of law, whether Claudia's delivery of goods was timely under the parties' agreements.
Reviewing the record, the Court finds that there remain genuine issues of fact with regard to whether defendant received all of the goods in question and whether defendant took delivery "ex works" of the goods reflected in invoice nos. 383 and 5. Plaintiff's conflicting submissions call into question the facts surrounding the delivery of goods.
Olivieri argues that, with respect to the goods identified on invoice no. 383, it only received and accepted goods valued at LIT 10,764,000. (Litvin Aff. at P17.) In support of its position, Olivieri submitted a fax dated December 29, 1993, in which it explicitly stated: "We have accepted merchandise only for lire 10,764,000 but you are billing us for lire 77,418,000." Ex. E, attached to Def. Response. In this fax, Olivieri specifically requested proof of delivery for the "full amount of goods." Id. As of August 1997, the date of Mr. Litvin's affidavit, Olivieri claimed that it had not been furnished with such proof of delivery. (Litvin Aff. at P 17.) Further, plaintiff submitted a letter by the shipper Matricardi, which could be viewed as casting doubt on plaintiff's allegation that Olivieri, or its agent, was responsible for failing to remove the goods from plaintiff's factory. The shipper's letter stated that the goods "given to us have been sent to . . . Olivieri . . . in New York." (Ex. G. attached to Pl. Reply.) Based on this letter, it appears that the shipper delivered the goods that it received from Claudia. Thus, if any goods remained in Claudia's factory, a trier of fact could infer that Claudia failed to deliver these goods. The Matricardi letter seemingly contradicts Claudia's assertion that it delivered the full amount of the invoiced goods to Olivieri, but that Olivieri "failed to remove" the majority of the goods from the factory.
Based upon the record as it now stands, the Court is unable to determine exactly what happened with regard to this shipment. Thus, genuine issues of material fact exist with regard to the delivery and acceptance of the invoiced goods.
Issues of fact exist with respect to other invoices as well. Plaintiff asserts that on approximately January 14, 1994, plaintiff and defendant entered into an agreement for the purchase by Olivieri of 1,056 pairs of shoes manufactured by plaintiff. (Compl. at P 22.) Plaintiff claims that the terms of the parties' agreement are reflected in plaintiff's invoice no. 5, which was delivered to defendant. (Compl. at P 22.) According to the invoice, the price of the shoes was LIT 36,696,000, due within 30 days from the end of January. (Ex. E, attached to Compl.) Defendant rejected certain shoes covered by invoice no. 5 and plaintiff accepted the return of such shoes. (Compl. at P 25.) Plaintiff thereafter issued defendant a credit in the amount of LIT 12,936,000, which represented the price of the rejected and returned shoes. Id. Plaintiff contends that LIT 23,760,000, reflecting the difference between the total amount of goods on invoice no. 5 and the returned goods, remains due and unpaid. Id. at P 27.
Plaintiff's allegations and evidence offered in support of its claims on invoice no. 5 are at times inconsistent, and raise issues of fact concerning delivery and acceptance. For example, plaintiff notes that invoice no. 5 "bears the Customs stamp of the City of Milan, as well as the shipper's agent's receipt for the goods." (Zamboni Decl. 2 at P 13.) According to plaintiff, the invoice evidences that the goods in question were picked up at Claudia's factory by defendant's shipper and delivered outside of Italy. In addition, plaintiff notes that invoice no. 5 references bill of lading 17994, dated January 14, 1994. (Zamboni Decl. 2 at P 13.) Plaintiff further notes that bill of lading no. 17994 contains the signature of shipper Matricardi and the date and time that the shipper picked up the shoes reflected in invoice no. 5 from Claudia's factory. Id. Nevertheless, the invoice and bill of lading, which presumably demonstrate that the goods left Italy, contradict plaintiff's assertion that the goods remained in plaintiff's factory and were subject to a value added tax, itemized in invoice no. 97. Again, Matricardi's letter, discussed above, also noted that it delivered all of the goods "given to us" as reflected in invoice no. 5. (Ex. G attached to Zamboni Decl. 2) The letter casts doubt on plaintiff's assertion that defendant failed to remove goods from plaintiff's factory.
The evidence is thus ambiguous with regard to whether all of the goods covered by invoice no. 5 were picked up from Claudia's factory and were delivered to New York. There are genuine issues of material fact regarding the acceptance and delivery of this specific shipment, the meaning to be afforded to the shipper's letter, the significance and interpretation of the shipper's signature and customs stamp on the invoice, the meaning and interpretation of the shipper's signature on the bill of lading, and whether the terms of the parties' agreement were complied with. The resolution of these factual issues must be reserved for trial.
Defendant, in its affidavit, denies that plaintiff "never assumed responsibility for shipping." (Litvin Aff. at P 10.) During oral argument on the motion, defense counsel stated that "it was the responsibility of Claudia to ship." See Oral Argument Transcript, dated January 22, 1998 ("Tr."), at 3. Defendant's faxes raise questions with respect to which party was ultimately responsible for the shipment of goods. In the November 29, 1993 fax, defendant stated: "As per our agreement you have promised not to use Matricardi to ship our products. We find their services to be very unreliable and we do not want to be responsible for their mistakes." (Ex. A, attached to Def. Response.) In its November 26, 1993 fax, defendant stated, "we do not know how and where did you ship these shoes." (Ex. B. attached to Def. Response.) Moreover, at the oral argument on the motion, plaintiff's counsel acknowledged that plaintiff may have had some responsibility for the selection of the shippers. (Tr. at 19.) No affidavits or deposition testimony of the shippers, or any documentary evidence on the shippers' responsibilities, have been submitted on this issue.
Viewing the evidence in the light most favorable to the defendant, we are unable to conclude, on this record, that it bore entire responsibility for shipping the goods and that the shippers were solely its agents. These factual issues must be resolved at trial. See O'Connell Machinery Co., Inc. v. MV "Americana", 797 F.2d 1130, 1137 (2d Cir. 1986) (court found no evidence that buyer controlled or supervised the party responsible for forwarding the goods (the "forwarder") or any other indicia of agency, thus, despite "ex works" provision in the invoice, shipping company failed to meet its burden of showing that forwarder was buyer's agent; holding that it was unclear whether the forwarder acted as an agent of the buyer, as opposed to an independent contractor); compare Graves Import Co., Ltd. v. Chilewich Int'l Corp., 1994 U.S. Dist. LEXIS 13393, No. 92 Civ. 3655 (JFK), 1994 WL 519996 (S.D.N.Y. September 22, 1994) (contract contained explicit provision stating "Sellers to allow Buyer's representatives access to production facilities to inspect quality . . ." and specifying that "Graves Import Company . . . will act as agents in this transaction.").
Given the factual disputes as to whether "ex works" was an agreed upon term of the contract, whether the parties' agreement was accurately reflected in the invoices, whether delivery was satisfactorily performed, and whether the shippers were in all cases defendant's agents, summary judgment is inappropriate and plaintiff's motion is denied. This ruling is obviously not intended to suggest that plaintiff's claims lack merit. Indeed, a number of the assertions made in defendant's motion papers are highly dubious and there has been a strong suggestion that evidence offered by defendant has been contrived. These issues can only be resolved at trial.
The parties are directed to submit a Joint Pretrial Order by May 8, 1998.
1. In the Complaint, plaintiff also asserts claims for account stated, goods sold and delivered, and unjust enrichment.
2. "Ex works" assigns a minimum obligation to the seller. See Incoterms 1990, an International Chamber of Commerce publication, identified as Appendix A attached to Pl. Mem. ("Appendix A"), at 19. "Ex works" indicates that "the seller fulfils his obligation to deliver when he has made the goods available at his premises (i.e. works, factory, warehouse, etc.) to the buyer. . . . The buyer bears all costs and risks involved in taking the goods from the seller's premises to the desired destination." Id. at 18.
3. Defendant argues that the absence of purchase orders demonstrates that defendant never entered into any agreement for the purchase of shoes manufactured by plaintiff. (Def. Mem. at 2.) There is no basis in law for this contention and defendant cites none. Indeed, it is undisputed that the plaintiff and defendant had agreed upon and conducted several successful transactions for the sale of shoes, none of which are at issue in this suit, without the use of purchase orders.
4. The UCC requires that a sale of goods must be evidenced by a writing sufficient to indicate that a contract of sale has been made and must be signed by the party against whom enforcement is sought. UCC § 2-201(1). The writing may be a one-sided instrument, however, under the written confirmation rule. According to this rule, a merchant may legally confirm an oral agreement in writing. If the receiving party fails to object within a reasonable time, then she has waived her statute of frauds defense.
5. Defendant's fax states that plaintiff failed to comply with the terms of their "original October agreement" by (1) using Matricardi to ship defendant's purchased goods, and (2) marking the invoices "Franco Fabrica." Thus, defendant acknowledges an earlier purchase and sale agreement between the parties. However, there is no evidence in the record regarding the terms of this October agreement. The Court further notes that defendant has never explicitly stated its understanding of the parties' agreement as to which party bore the responsibility for delivery and shipment of the goods.
6. Plaintiff has argued that the faxes were fabricated and that defendant's objection to "ex works" delivery and complaints about late deliveries and nonconforming goods were never communicated to Claudia. (Zamboni Decl. 2 at P 4.) In light of the arguments set forth by plaintiff, the Court seriously questions the validity of the faxes. Nevertheless, it is not for the Court to weigh credibility on a summary judgment motion and the resolution of this issue must await trial.
7. We do not know what the terms of the oral offer and acceptance were or whether plaintiff's invoices modified the terms orally agreed upon. Under the CISG, "all material terms of [an] acceptance should mirror the offer." 23 Syracuse J. Int'l L. & Com. at 108. Article 19 of the CISG provides that "a reply to an offer which purports to be an acceptance but contains additions . . . or other modifications is a rejection of the offer and constitutes a counter-offer" if the modification materially alters the terms of the offer. CISG, Article 19(1). Material modifications, including the alteration of delivery terms, often occur in "the routine exchange of the buyer's printed purchase order and the seller's printed acknowledgment of sale form." See Legal Analysis of the United Nations Convention on Contracts for the International Sale of Goods, (1980), commentary on Article 19, "Acceptance with Modifications," attached to the CISG. Under the CISG, "no contract results from such an exchange if the purported acceptance contains additional or different terms that materially alter the offer." Id.
11. Although plaintiff submitted invoice no. 383 and bill of lading no. 17947, evidencing that goods valued at LIT 10,764,000 left the country, Exs. D, E, attached to Zamboni Decl. 2, neither document sheds any light on whether the non-exported goods that remained in plaintiff's factory were made available to the defendant for pick up.
12. The defendant itself has made contradictory statements. In its June 26, 1994 fax, defendant stated that because the goods were nonconforming it wanted a refund for the expense of duty and freight, thus implying that defendant paid for the shipping services. Olivieri also stated in that fax that its agreement was to have Claudia "use our services to sell [the goods]." Ex. F. attached to Def. Response.

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Balancing exercises permeate data protection law. This post investigates the interaction between two core manifestations of such balancing in the GDPR: the last lawful ground (Art.6(1)f) and the right to object (Art.21(1)).
Balancing in Article 6(1): From lawfulness to guiding principle?
Balancing exercises play a pivotal role in the General Data Protection Regulation (GDPR). They are implied in concepts such as fairness and proportionality that permeate the GDPR. The centrepiece of balancing exercises within the Regulation is to be found in Article 6(1)f. This last lawful ground permits processing of personal data whenever ‘necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject’. In other words, this provision puts the legitimate interests of the controller and those of third parties against the interests, fundamental rights and freedoms of the data subject.
The balancing exercise put forward in Article 6(1)f arguably transcends merely being one lawful ground among the others. Indeed, the previous four grounds (necessary for (b) performance of a contract, (c) compliance with a legal obligation, (d) protect the data subject’s vital interests, (e) tasks carried out in the public interest), could be qualified as variations on a theme. They are simply situations where the interest in processing prevails by default. In light of the fairness principle, one may even claim that the first lawful ground on consent is subject to some level of balancing in light of Article 6(1)f. The very act of consenting can be qualified as a strong indicator that there is a balance. This is particularly true in light of the new Article 7, inter aliaputting forward the unconditional ability to withdraw one’s consent as well as guarding against all-or-nothing clauses.
The practical relevance of this consideration is that the lawfulness of any processing operation, regardless of its lawful ground, will have to be assessed in light of Article 6(1)f’s balancing exercise. The Art. 6(1)f balancing test will inform – not determine – the validity of the other lawful grounds. In sum, the balancing test in Article 6(1)f is the manifestation of the fairness principle (Article 5(1)a) in the form of a lawful ground. As such it can be used as a proxy for evaluating the validity of any of the lawful grounds.
The balancing exercise in Article 6(1)f can be qualified as an ex ante obligation. It needs to be complied with before the processing operation initiates. In practice, this balancing exercise will unilaterally be defined by the controller. Enter data subject rights. The rights to object and to erasure install ex post rights, effectively empowering data subjects to challenge the balance put forward by the controller. The right to object (Art.21) is particularly interesting in this regard, because it defines its very own balancing exercise. When a data subject objects ‘on grounds relating to his or her particular situation, […] the controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interest, rights and freedoms of the data subject […]’. As such, the right to object may be one of the clearest manifestations of the fairness principle in the shape of a data subject right.
Despite the striking resemblance between the balancing exercises in Articles 6(1)f and 21(1), there are some key differences. The right to object explicitly requires the data subject to put forward grounds relating to his/her particular situation, but at the same time puts the onus on the controller to establish overriding ‘compelling legitimate grounds’. The shift in burden of proof when compared to its predecessor (Art.14) in Directive 95/46, seems to have settled halfway. Both controller and data subject have one, though the controller’s is more onerous. In light of the accountability principle in Article 5(2), the burden of proof for establishing a balance under Art.6(1)f a priori lies with the controller alone. But, to all intents and purposes, when a data subject wishes to effectively challenge this balance, he/she will have to substantiate that claim.
Importantly, Art.21(1) does not include a reference to third party interests, which makes it seem more narrow than Art.6(1)f’s balance. Reading more closely, however, the provision merely requires the controller to demonstrate overriding ‘compelling legitimate grounds’. The language does not constrain these grounds to be of the controller alone and could therefore encompass much more than only ‘the interests pursued by the controller or by a third party’ in Art.6(1)f. This would render it harder for data subjects to exercise their right to object than to challenge the lawfulness of the processing operation(s) itself. This puzzling conclusion might partially be countered by the fact that Article 21(1) does not require the rights and freedoms of the data subject to be fundamental (contrary to Art.6(1)f).
Things get even more confusing when reading recital 69, which conflicts with Art.21(1) on three occasions, referring to (a) the controller’s own legitimate interests only; (b) ‘interests’ instead of ‘grounds’, the former being narrower; and (c) data subjects’ fundamental rights and freedoms. The end-result is that it is unclear how the balancing exercise under Art.21(1) should be performed exactly, leaving data subjects less empowered.
In conclusion, one may wonder what the added value of Article 21(1)’s balancing exercise is in the first place. Firstly, data subjects are free – at least in theory – to challenge lawful grounds (including Art.6(1)f) already anyway. Secondly, a closer look at Art.21(1) suggests that its balancing exercise is less likely to benefit data subjects than the one in Article 6(1)f. In light of data protection law’s rationale – routinely confirmed by the CJEU – the right to object should be interpret from the perspective of ensuring a high and effective level of protection. Such a systematic reading implies the right to object’s balancing exercise should be mirrored against (not equated to) the one in Art.6(1)f. The right to object can still be successful even though the processing is lawful stricto sensu under Article 6(1)f. The main added value of Art.21(1) therefore appears to be (a) allocating the burden of proof; and (b) empowering data subjects to challenge the status quo.


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Petitioner Graham, a diabetic, asked his friend, Berry, to drive him to a convenience store to purchase orange juice to counteract the onset of an insulin reaction. Upon entering the store and seeing the number of people ahead of him, Graham hurried out and asked Berry to drive him to a friend's house instead. Respondent Connor, a city police officer, became suspicious after seeing Graham hastily enter and leave the store, followed Berry's car, and made an investigative stop, ordering the pair to wait while he found out what had happened in the store. Respondent backup police officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat Graham's condition. During the encounter, Graham sustained multiple injuries. He was released when Conner learned that nothing had happened in the store. Graham filed suit in the District Court under 42 U.S.C. § 1983 against respondents, alleging that they had used excessive force in making the stop, in violation of "rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983." The District Court granted respondents' motion for a directed verdict at the close of Graham's evidence, applying a four-factor test for determining when excessive use of force gives rise to a § 1983 cause of action, which inquires, inter alia, whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm. Johnson v. Glick, 481 F.2d 1028. The Court of Appeals affirmed, endorsing this test as generally applicable to all claims of constitutionally excessive force brought against government officials, rejecting Graham's argument that it was error to require him to prove that the allegedly excessive force was applied maliciously and sadistically to cause harm, and holding that a reasonable jury applying the Johnson v. Glick test to his evidence could not find that the force applied was constitutionally excessive.
Held: All claims that law enforcement officials have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are properly analyzed under the Fourth Amendment's "objective reasonableness" standard, rather than under a substantive due process standard. Pp. 490 U. S. 392-399.
(a) The notion that all excessive force claims brought under § 1983 are governed by a single generic standard is rejected. Instead, courts must identify the specific constitutional right allegedly infringed by the challenged application of force, and then judge the claim by reference to the specific constitutional standard which governs that right. Pp. 490 U. S. 393-394.
(b) Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable seizures," and must be judged by reference to the Fourth Amendment's "reasonableness" standard. Pp. 490 U. S. 394-395.
(c) The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation. Pp. 490 U. S. 396-397.
(d) The Johnson v. Glick test applied by the courts below is incompatible with a proper Fourth Amendment analysis. The suggestion that the test's "malicious and sadistic" inquiry is merely another way of describing conduct that is objectively unreasonable under the circumstances is rejected. Also rejected is the conclusion that, because individual officers' subjective motivations are of central importance in deciding whether force used against a convicted prisoner violates the Eighth Amendment, it cannot be reversible error to inquire into them in deciding whether force used against a suspect or arrestee violates the Fourth Amendment. The Eighth Amendment terms "cruel" and "punishment" clearly suggest some inquiry into subjective state of mind, whereas the Fourth Amendment term "unreasonable" does not. Moreover, the less protective Eighth Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. Pp. 490 U. S. 397-399.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, in which BRENNAN and MARSHALL, JJ., joined, post, p. 490 U. S. 399.
line. Concerned about the delay, he hurried out of the store and asked Berry to drive him to a friend's house instead.
Respondent Connor, an officer of the Charlotte, North Carolina, Police Department, saw Graham hastily enter and leave the store. The officer became suspicious that something was amiss, and followed Berry's car. About one-half mile from the store, he made an investigative stop. Although Berry told Connor that Graham was simply suffering from a "sugar reaction," the officer ordered Berry and Graham to wait while he found out what, if anything, had happened at the convenience store. When Officer Connor returned to his patrol car to call for backup assistance, Graham got out of the car, ran around it twice, and finally sat down on the curb, where he passed out briefly.
"I've seen a lot of people with sugar diabetes that never acted like this. Ain't nothing wrong with the M.F. but drunk. Lock the S.B. up."
App. 42. Several officers then lifted Graham up from behind, carried him over to Berry's car, and placed him face down on its hood. Regaining consciousness, Graham asked the officers to check in his wallet for a diabetic decal that he carried. In response, one of the officers told him to "shut up" and shoved his face down against the hood of the car. Four officers grabbed Graham and threw him headfirst into the police car. A friend of Graham's brought some orange juice to the car, but the officers refused to let him have it. Finally, Officer Connor received a report that Graham had done nothing wrong at the convenience store, and the officers drove him home and released him.
situation," id. at 248-249, the District Court granted respondents' motion for a directed verdict.
to petitioner's evidence "could not find that the force applied was constitutionally excessive." Id. at 949-950. The dissenting judge argued that this Court's decisions in Terry v. Ohio, 392 U. S. 1 (1968), and Tennessee v. Garner, 471 U. S. 1 (1985), required that excessive force claims arising out of investigatory stops be analyzed under the Fourth Amendment's "objective reasonableness" standard. 827 F.2d at 950-952. We granted certiorari, 488 U.S. 816 (1988), and now reverse.
law enforcement officers deprives a suspect of liberty without due process of law."
481 F.2d at 1032. As support for this proposition, he relied upon our decision in Rochin v. California, 342 U. S. 165 (1952), which used the Due Process Clause to void a state criminal conviction based on evidence obtained by pumping the defendant's stomach. 481 F.2d at 1032-1033. If a police officer's use of force which "shocks the conscience" could justify setting aside a criminal conviction, Judge Friendly reasoned, a correctional officer's use of similarly excessive force must give rise to a due process violation actionable under § 1983. Ibid. Judge Friendly went on to set forth four factors to guide courts in determining "whether the constitutional line has been crossed" by a particular use of force -- the same four factors relied upon by the courts below in this case. Id. at 1033.
source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U. S. 137, 443 U. S. 144, n. 3 (1979). In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. See id. at 443 U. S. 140 ("The first inquiry in any § 1983 suit" is "to isolate the precise constitutional violation with which [the defendant] is charged"). [Footnote 9] In most instances, that will be either the Fourth Amendment's prohibition against unreasonable seizures of the person or the Eighth Amendment's ban on cruel and unusual punishments, which are the two primary sources of constitutional protection against physically abusive governmental conduct. The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized "excessive force" standard. See Tennessee v. Garner, supra, at 471 U. S. 7-22 (claim of excessive force to effect arrest analyzed under a Fourth Amendment standard); Whitley v. Albers, 475 U. S. 312, 475 U. S. 318-326 (1986) (claim of excessive force to subdue convicted prisoner analyzed under an Eighth Amendment standard).
Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable . . . seizures" of the person. This much is clear from our decision in Tennessee v. Garner, supra. In Garner, we addressed a claim that the use of deadly force to apprehend a fleeing suspect who did not appear to be armed or otherwise dangerous violated the suspect's constitutional rights, notwithstanding the existence of probable cause to arrest.
Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests'" against the countervailing governmental interests at stake. Id. at 471 U. S. 8, quoting United States v. Place, 462 U. S. 696, 462 U. S. 703 (1983). Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U.S. at 392 U. S. 22-27. Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v. Wolfish, 441 U. S. 520, 441 U. S. 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S. at 471 U. S. 8-9 (the question is "whether the totality of the circumstances justifie[s] a particular sort of. . . seizure").
allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.
As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U. S. 128, 436 U. S. 137-139 (1978); see also Terry v. Ohio, supra, at 392 U. S. 21 (in analyzing the reasonableness of a particular search or seizure, "it is imperative that the facts be judged against an objective standard"). An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. See Scott v. United States, supra, at 436 U. S. 138, citing United States v. Robinson, 414 U. S. 218 (1973).
Also named as a defendant was the city of Charlotte, which employed the individual respondents. The District Court granted a directed verdict for the city, and petitioner did not challenge that ruling before the Court of Appeals. Accordingly, the city is not a party to the proceedings before this Court.
Petitioner also asserted pendent state law claims of assault, false imprisonment, and intentional infliction of emotional distress. Those claims have been dismissed from the case, and are not before this Court.
The majority did note that, because Graham was not an incarcerated prisoner, "his complaint of excessive force did not, therefore, arise under the eighth amendment." 827 F.2d at 948, n. 3. However, it made no further effort to identify the constitutional basis for his claim.
Petitioner's argument was based primarily on Kidd v. O'Neil, 774 F.2d 1252 (CA4 1985), which read this Court's decision in Tennessee v. Garner, 471 U. S. 1 (1985), as mandating application of a Fourth Amendment "objective reasonableness" standard to claims of excessive force during arrest. See 774 F.2d at 1254-1257. The reasoning of Kidd was subsequently rejected by the en banc Fourth Circuit in Justice v. Dennis, 834 F.2d 380, 383 (1987), cert. pending, No. 87-1422.
"ultimately turns on 'whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'"
"unreasonable . . . to suggest that a conceptual factor could be central to one type of excessive force claim but reversible error when merely considered by the court in another context."
827 F.2d at 948, n. 3.
Judge Friendly did not apply the Eighth Amendment's Cruel and Unusual Punishments Clause to the detainee's claim for two reasons. First, he thought that the Eighth Amendment's protections did not attach until after conviction and sentence. 481 F.2d at 1032. This view was confirmed by Ingraham v. Wright, 430 U. S. 651, 430 U. S. 671, n. 40 (1977) ("Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions"). Second, he expressed doubt whether a "spontaneous attack" by a prison guard, done without the authorization of prison officials, fell within the traditional Eighth Amendment definition of "punishment." 481 F.2d at 1032. Although Judge Friendly gave no reason for not analyzing the detainee's claim under the Fourth Amendment's prohibition against "unreasonable . . . seizures" of the person, his refusal to do so was apparently based on a belief that the protections of the Fourth Amendment did not extend to pretrial detainees. See id. at 1033 (noting that "most of the courts faced with challenges to the conditions of pretrial detention have primarily based their analysis directly on the due process clause"). See n 10, infra.
See Freyermuth, Rethinking Excessive Force, 1987 Duke L.J. 692, 694-696, and nn. 16-23 (1987) (collecting cases).
See Justice v. Dennis, supra, at 382 ("There are . . . certain basic principles in section 1983 jurisprudence as it relates to claims of excessive force that are beyond question[,] [w]hether the factual circumstances involve an arrestee, a pretrial detainee or a prisoner").
The same analysis applies to excessive force claims brought against federal law enforcement and correctional officials under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).
A "seizure" triggering the Fourth Amendment's protections occurs only when government actors have, "by means of physical force or show of authority, . . . in some way restrained the liberty of a citizen," Terry v. Ohio, 392 U. S. 1, 392 U. S. 19, n. 16 (1968); see Brower v. County of Inyo, 489 U. S. 593, 489 U. S. 596 (1989).
"serves as the primary source of substantive protection . . . in cases . . . where the deliberate use of force is challenged as excessive and unjustified."
Whitley v. Albers, 475 U.S. at 475 U. S. 327. Any protection that "substantive due process" affords convicted prisoners against excessive force is, we have held, at best redundant of that provided by the Eighth Amendment. Ibid.
"to restore order in the face of a prison disturbance, . . . the question whether the measure taken inflicted unnecessary and wanton pain . . . ultimately turns on 'whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'"
475 U.S. at 475 U. S. 320-321 (emphasis added), quoting Johnson v. Glick, 481 F.2d at 1033. We also suggested that the other prongs of the Johnson v. Glick test might be useful in analyzing excessive force claims brought under the Eighth Amendment. 475 U.S. at 475 U. S. 321. But we made clear that this was so not because Judge Friendly's four-part test is some talismanic formula generally applicable to all excessive force claims, but because its four factors help to focus the central inquiry in the Eighth Amendment context, which is whether the particular use of force amounts to the "unnecessary and wanton infliction of pain." See id. at 475 U. S. 320-321. Our endorsement of the Johnson v. Glick test in Whitley thus had no implications beyond the Eighth Amendment context.
Of course, in assessing the credibility of an officer's account of the circumstances that prompted the use of force, a factfinder may consider, along with other factors, evidence that the officer may have harbored ill-will toward the citizen. See Scott v. United States, 436 U. S. 128, 436 U. S. 139, n. 13 (1978). Similarly, the officer's objective "good faith" -- that is, whether he could reasonably have believed that the force used did not violate the Fourth Amendment -- may be relevant to the availability of the qualified immunity defense to monetary liability under § 1983. See Anderson v. Creighton, 483 U. S. 635 (1987). Since no claim of qualified immunity has been raised in this case, however, we express no view on its proper application in excessive force cases that arise under the Fourth Amendment.
substantive due process standard. I also see no basis for the Court's suggestion, ante at 490 U. S. 395, that our decision in Tennessee v. Garner, 471 U. S. 1 (1985), implicitly so held. Nowhere in Garner is a substantive due process standard for evaluating the use of excessive force in a particular case discussed; there is no suggestion that such a standard was offered as an alternative and rejected.
In this case, petitioner apparently decided that it was in his best interest to disavow the continued applicability of substantive due process analysis as an alternative basis for recovery in prearrest excessive force cases. See Brief for Petitioner 20. His choice was certainly wise as a matter of litigation strategy in his own case, but does not (indeed, cannot be expected to) serve other potential plaintiffs equally well. It is for that reason that the Court would have done better to leave that question for another day. I expect that the use of force that is not demonstrably unreasonable under the Fourth Amendment only rarely will raise substantive due process concerns. But until I am faced with a case in which that question is squarely raised, and its merits are subjected to adversary presentation, I do not join in foreclosing the use of substantive due process analysis in prearrest cases.