(1) The following terms and conditions apply to business transactions with entrepreneurs, legal entities under public law and special funds under public law.
(2) Deliveries and other services (hereinafter referred to as “Delivery”) shall be made exclusively on the basis of our terms and conditions. Once these have been received by the customer, they shall also apply to all future transactions without express reference to them.
(3) Conflicting terms and conditions of the customer shall not apply unless we have expressly agreed to their validity. Deviating terms and conditions of the customer shall not apply even if they are not expressly rejected again upon conclusion of the contract.
(1) Our offers are subject to change without notice. The contract is only concluded by our order confirmation. If the delivery is carried out without the customer receiving a confirmation beforehand, the contract is concluded by the acceptance of the delivery. With the acceptance of the delivery the customer accepts these terms and conditions.
(2) Drawings, illustrations, dimensions, weights or other performance data or information shall only be binding if expressly confirmed by us in writing. We reserve the right to make technical, constructive and customary changes to the delivery item, insofar as they do not unreasonably affect the customer and insofar as they do not affect the usability of the item.
(1) The prices valid on the day of delivery according to the respectively valid price list without deduction of cash discounts are decisive, unless otherwise agreed in writing in the offer. The prices are quoted ex works/warehouse plus the applicable statutory value added tax. Packaging, freight, insurance and postage will be charged separately. This shall also apply to unforeseen additional services for which we are not responsible.
(2) Unless otherwise agreed, our invoices are due for payment immediately after issue without deduction. Bills of exchange and cheques shall only be accepted on account of payment on the basis of special agreements and shall only be credited after final encashment.
(3) If it becomes apparent after conclusion of the contract that our payment claim is endangered by the customer’s lack of ability to pay, we shall be entitled to the rights arising from § 321 BGB (German Civil Code). The same shall apply in the event of non-compliance with payment conditions, default of payment or in the event of circumstances which call the creditworthiness of the customer into question. These circumstances result in the immediate maturity of all our claims.
(4) The customer shall only be entitled to offset or exercise the right of retention due to counterclaims if these have been legally established or are undisputed.
(1) As a matter of principle, delivery periods shall only be agreed by us in writing.
Compliance with our delivery and performance obligations presupposes the timely and proper fulfilment of the customer’s obligations.
(2) In the event of unforeseen hindrances which lie outside our sphere of influence and which we could not avert despite exercising reasonable care in the circumstances of the case, or in the event of force majeure – regardless of whether they occur at our premises or at those of our suppliers – we shall be entitled to rescind the contract in whole or in part on account of the unfulfilled part or to extend the delivery period by the duration of the hindrance. We will inform the customer immediately of any obstacles to performance.
(3) In the event of a delay in delivery, a reasonable period of grace must be set beforehand in order to assert a rescission or claim for damages. For claims for damages § 9 of these AGB applies.
(4) We shall be entitled to make partial deliveries and render partial services as long as these do not unreasonably impair the customer.
(5) If the customer is in default of acceptance, we may withdraw from the contract or demand damages instead of performance after the customer has been unsuccessfully set a reasonable deadline for performance. If we choose compensation, this claim shall amount to 25% of the purchase price. Further claims for damages remain unaffected by this. The customer shall be permitted to prove that no damage or a reduction in value has occurred at all or that it is substantially lower than the lump sum.
(6) Insofar as test items of the customer are required for test purposes, these must, unless otherwise agreed, be received by us at least 8 weeks prior to the advance acceptance date or 10 weeks prior to the agreed delivery date.
(7) In the event of assembly, the customer shall be obliged to make available qualified and authorised plant operators and assistants, also – if necessary – on weekends and public holidays, free of charge. The Customer shall guarantee a freely accessible installation site and trouble-free operation and support in accordance with sentence 1 for 10 hours per day, including – if necessary – on weekends and public holidays. The customer is obliged to guarantee safety precautions for our fitters and to provide protective clothing, as well as to point out hazards or unusual working conditions already in the order.
(1) The customer receives a non-exclusive and non-transferable right (simple right) to use the software specified in the contract within the framework of the contractual provisions. The customer is obliged to treat our software, drawings and documents as strictly confidential and to make them accessible only to employees who have to deal with them due to their tasks. Any further use of the software; use on other equipment or passing on to third parties is prohibited. We have the right to modify, further develop and market the software to third parties.
(2) We shall be entitled without restriction to the property rights and copyrights of exploitation, use and protection of cost estimates, drawings, other documents and our software. These items are to be returned immediately upon failure of the contract or upon termination of the contract. In the event of violations, planning costs for engineering services in accordance with HOAI will be reimbursed by the customer.
(1) We reserve title to the delivered goods until receipt of all payments under the delivery contract.
(2) Processing or transformation of the goods delivered by us under retention of title shall always be carried out on our behalf to the exclusion of the acquisition of title in accordance with § 950 BGB (German Civil Code), without any liabilities arising for us therefrom. If the reserved goods are combined, mixed, blended or processed with other objects not belonging to us, we shall be entitled to co-ownership of the new object in the ratio of the invoice value of the reserved goods to the other processed goods at the time of processing or treatment. If the customer acquires sole ownership of the new item, the contracting parties agree that the customer shall grant us co-ownership of the new item in the internal relationship to the amount of the value of the processed item subject to retention of title and shall keep it in safe custody for us free of charge. If the other item is to be regarded as the main item, the customer shall transfer to us proportionate co-ownership in accordance with the invoice value as soon as the main item belongs to him.
(3) The customer may only sell or process the goods in the ordinary course of business as long as he is not in default, the claim from the resale or processing is actually transferred to the customer and the customer has agreed a retention of title with his customers in accordance with these conditions.
(4) Upon conclusion of the contract, the customer assigns to us all claims with all ancillary rights and securities to which he is entitled from the resale or processing of the reserved goods or from insurance against third parties. We hereby accept the assignment. If the reserved goods are sold together with items not belonging to us or in connection with other services, the assignment of the claim shall be limited to the amount of the invoice value of the reserved goods. The customer is authorized to collect the claim assigned to the customer for the customer’s account in his own name. This direct debit authorisation can be revoked by us in the event of default in payment on the part of the customer.
(5) Pledges or assignments by way of security are not permitted. In the event of access by third parties to the reserved goods, in particular seizure, the customer shall draw attention to our ownership and inform us immediately. The customer is obliged to immediately disclose the claims assigned to us and their debtors and to hand over all information and documents required for collection. If the customer acts in breach of contract – in particular in default of payment – we shall be entitled to take back the reserved goods or to demand assignment of the customer’s claims for surrender against third parties.
(6) If the value of our securities exceeds our outstanding claims against the customer by more than 10%, we shall release securities of our choice upon request. The repossession or seizure of the reserved goods shall not be deemed withdrawal from the contract unless this is expressly declared.
(1) Loading and dispatch shall take place ex works/warehouse of the Seller upon transfer of risk.
(2) Goods declared ready for dispatch must be called off immediately. Should the customer be in default of acceptance, the risk shall pass to him. Insurance against transport damage shall only be taken out at the written request of the customer.
(3) If delivery has been agreed, this shall be free truck edge without unloading obligation and only to the extent that proper access is possible. Return of packaging material is excluded.
(1) We shall be liable for proven material defects existing at the time of transfer of risk and notified in good time. The liability for material defects shall be effected by subsequent performance in such a way that we either remedy the defect or deliver a defect-free item at our discretion. If the subsequent performance fails, the customer has the right to demand a reduction of the purchase price (reduction) or withdrawal from the contract.
(2) Claims for subsequent performance, damages and reimbursement of expenses as well as claims for defects shall become statute-barred one year after delivery of the object of sale. This shall not apply where longer periods are prescribed by law, in particular pursuant to § 438 (1) no. 2 BGB (Buildings and objects for buildings), § 479 (1) BGB (Right of recourse) and § 634 a. (1) No. 2 (construction defects) and in cases of injury to life, limb and health, fraudulent concealment of the defect, claims for damages under the Product Liability Act and breach of material contractual obligations. Essential contractual obligations are those whose fulfilment is essential for the proper execution of the contract and on whose observance the contractual partner may regularly rely.
(3) Excluded from the warranty are damages caused by unsuitable or improper use of the object of purchase, faulty assembly or commissioning by the customer or third parties, as well as natural wear and tear. The warranty for used goods is excluded except in the case of warranty and fraudulent intent.
(4) Notifications of defects must be made in writing without prejudice to § 377 HGB (German Commercial Code) due to an inspection carried out immediately after delivery. If defects cannot be discovered within this period even after careful inspection, they must be reported immediately after discovery of the defect. Otherwise the goods shall be deemed to have been approved. The Seller shall not waive the objection of delay by examining delayed notices of defects.
(5) Section 9 of these GTC shall apply mutatis mutandis to claims for damages and reimbursement of expenses. Any further liability is otherwise excluded.
(1) We shall only pay damages if we are guilty of intent or gross negligence, in the event of culpable injury to life, limb or health within the scope of § 309 No. 7 BGB (German Civil Code), within the scope of the mandatory limits of the German Product Liability Act (Produkthaftpflichtgesetz) as well as in the event of assumption of a guarantee, fraudulent intent on the part of the seller or the assurance of a characteristic, if a defect covered by such a provision triggers our liability, as well as in the event of breach of material contractual obligations. Essential contractual obligations are those whose fulfilment is essential for the proper execution of the contract and on whose observance the contractual partner may regularly rely. In the event of reimbursement of expenses, the above shall apply mutatis mutandis.
(2) If the Seller culpably violates an essential contractual obligation, the liability within the scope of the above clause 1 shall be limited to the foreseeable damage typical for the contract. This does not entail any change in the burden of proof.
(1) The parties have not made any verbal agreements, contract amendments or other collateral agreements to the contract. These require the written form to be effective. This also applies to the waiver of the written form requirement.
(2) The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods of 11 April 1980 does not apply.
(1) The place of performance for all rights and obligations arising from the contract and for payments by the customer shall be Bochum.
(2) If the customer is a merchant, a legal entity under public law or a special fund under public law, Bochum shall be the agreed place of jurisdiction. This shall also apply if the customer does not have a general place of jurisdiction in Germany or relocates his place of business or usual residence abroad or relocates it unknown after conclusion of the contract.


text:
JAMES DORAN & another vs. THE ELECTRICAL INSTALLATION COMPANY.
A boy injured through a fall while in the plant of a corporation on a holiday when it was not open for business was a mere gratuitous licensee, and not an invitee, of the corporation where it appeared that he had no business with the corporation and that he and other boys went to the plant with its president, who wished to go there and had offered to drive them to a boys' club afterwards.
TORT. Writ in the Superior Court dated December 12, 1946.
The action was tried before Rome, J.
R. W. Bramley, for the defendant.
G. S. Ryan, for the plaintiff.
LUMMUS, J. James Doran, a boy ten years old, was hurt on January 1, 1946, by falling through a sheet rock ceiling in the plant of the defendant in Cambridge. The first two counts of the declaration [Note 1] allege negligence of the defendant. The third count is a claim for consequential damages by John Doran, the father of James, also alleging negligence of the defendant.
Motions by the defendant for directed verdicts in its favor were denied, and the defendant excepted. The jury returned verdicts against the defendant on all three counts, and the judge refused to enter verdicts in its favor under leave reserved. The exceptions of the defendant present the only question.
desired to go to the plant of the defendant, which was not open for business on that day, and offered after that to drive his own son, with the plaintiff James Doran and two other boys, to the Arlington Boys' Club. Keating remained on the first floor of the defendant's premises, while the boys went to the second floor. They were not told where to go. There was a ladder on the second floor, leading up. The four boys climbed the ladder and reached a place where a plank was laid over a sheet rock ceiling. They crossed on the plank, and, finding nothing interesting, walked back on it. In walking back, the plaintiff James stepped off the plank and fell through the ceiling.
The plaintiff James had no business with the defendant, and was on its premises merely to see whatever might interest him. He was not an invitee, but merely a gratuitous licensee. Zoebisch v. Tarbell, 10 Allen 385. Plummer v. Dill, 156 Mass. 426. McCoy v. Walsh, 186 Mass. 369. Norris v. Hugh Nawn Contracting Co. 206 Mass. 58. Murphy v. Boston & Maine Railroad, 248 Mass. 78. Bruso v. Eastern States Exposition, 269 Mass. 21. Coulombe v. Horne Coal Co. 275 Mass. 226. Lanstein v. Acme White Lead & Color Works, 285 Mass. 328. McNamara v. MacLean, 302 Mass. 428. Carroll v. Hemenway, 315 Mass. 45. Zaia v. "Italia" Societa Anonyma di Navigazione, 324 Mass. 547. The duty of the defendant toward the plaintiffs was only to refrain from wilful, wanton or reckless conduct, and there is no allegation and no evidence of such conduct. Murphy v. Boston & Maine Railroad, 248 Mass. 78, 82. Partridge v. United Elastic Corp. 288 Mass. 138, 144. Colbert v. Ricker, 314 Mass. 138, 141.
[Note 1] These counts were by James for personal injuries. -- REPORTER.

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


U.S. ex Rel. Moore v. University of Mich.
U.S. ex Rel. Moorev.University of Mich.
Philip Green and Christine Green, Ann Arbor, MI, for plaintiffs.
Kenneth J. McIntyre and Timothy H. Howlett, Detroit, MI, for defendant.
JULIAN ABELE COOK, Jr., Chief Judge.
On May 14, 1993, the Defendant, the University of Michigan (University), filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), claiming that this Court lacks jurisdiction on the basis of its immunity under the Eleventh Amendment. The Plaintiff, Robert D. Moore, responded in opposition.
This case was originally brought in the name of the United States and Robert D. Moore. However, the University of Michigan and the United States subsequently resolved their differences. Hence, the latter is no longer a party to this lawsuit. (Order, Judge Gerald E. Rosen, January 15, 1993.) In accordance with Judge Rosen's Order of March 23, 1994, in which he disqualified himself pursuant to 28 U.S.C. § 455, the matter was reassigned to this Court under the existing "blind draw" assignment system.
For the reasons that have been set forth below, this Court will grant the University's Motion and dismiss the remaining federal and state law claims without prejudice.
This controversy involves accusations of computer overcharging and wrongful discharge by Moore in violation of the Federal False Claims Act and the Michigan Whistle-Blowers' Protection Act. Moore became the Budget Finance Manager in the Information Technology Division at the University in 1986 and became its Director of Finance four years later. His position in these capacities allowed him to become acquainted with the University's computing procedures. During the course of his employment, he allegedly discovered that the University had (1) charged the United States Government twice the rate that it had imposed on other entities for their use of the mainframe computer, contrary to the directives from the United States Office of Management and Budget, (2) devised a billing scheme that was designed to offset the University's purchase of 1200 personal computers, factoring these costs into the rates that were being charged against the United States Government, (3) assessed the cost of acquiring, using and maintaining the University's Mirlyn Library system and its mainframe to the United States Government, while making these systems available at no cost to the University community, and (4) under-reported the income from the computer system to the Internal Revenue Service.
This asserted misconduct led to the filing of the Complaint which sets forth two counts; namely, (1) a qui tam action on behalf of the United States Government under the False Claims Act, 31 U.S.C. § 3730(b)(1) (1988), and (2) a claim that Moore had been demoted in violation of 31 U.S.C. § 3730(h) (1988) of the False Claims Act and contrary to the Michigan Whistle-Blowers' Protection Act, Mich.Comp. Laws Ann. §§ 15.361— 15.369 (West 1994). Moore filed a Supplemental Complaint on April 16, 1993 to Count Two of the action, alleging that he had been constructively discharged subsequent to the filing of the lawsuit.
As a result of the procedural events in this case (see footnote 1), the only remaining claim deals with Moore's alleged illegal demotion and subsequent discharge from the University. Moore is seeking a monetary award and reinstatement to his former position with the University. The University's Motion to Dismiss is now before this Court for resolution.
The University maintains that the action should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) because the Eleventh Amendment bars Moore from prosecuting his personal damage claims against the University in a federal court. For the purposes of Eleventh Amendment immunity, the University contends that, as a state constitutional entity, it is analogous to the State of Michigan and Moore, as a citizen of the State, is barred from prosecuting his claim in this federal court. The University also claims that (1) Congress did not explicitly abrogate the State of Michigan's Eleventh Amendment immunity under § 3730(h), (2) § 3730(h) is a separate cause of action that is independent of a lawsuit brought in the name of the United States under § 3730(b)(1), and (3) without regard to the decision in the pending federal claim, a decision on Moore's claim under the Michigan Whistle-Blowers' Protection Act is prohibited because the supplemental jurisdiction of this Court cannot override the Eleventh Amendment.
Moore acknowledges that the University is an agency of the State in his Complaint. However, he argues that (1) the claim under § 3730(h), like those under § 3730(b)(1), is brought on behalf of the United States and as such, is not barred by the Eleventh Amendment, (2) Congress has abrogated the State of Michigan's Eleventh Amendment immunity by specific language in the False Claims Act, and (3) because § 3730(h) is an essential part of this Act, this Court should have jurisdiction to resolve all of the pending claims. Moore supports these contentions importing those portions of the False Claims Act that treat the United States as a party to the transaction to cover the retaliatory provision within the Act. He submits that the Court should retain the state issue in this matter under supplemental jurisdiction because of its jurisdiction over the federal claim.
A complaint that is barred by the Eleventh Amendment fails to state a claim upon which relief can be granted, and hence, should be dismissed by this Court. Fed.R.Civ.P. 12(b)(6).
If, on a motion asserting the defense . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
In order for a complaint to be dismissed for failure to state a claim, a court must conclude "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Carver v. Bunch, 946 F.2d 451, 452 (6th Cir. 1991) (quoting Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam)). Moreover, the court must liberally construe the pleading in favor of the non-moving party and accept as true all well-pleaded allegations. Dayco Corp. v. Goodyear Tire Rubber Co., 523 F.2d 389, 392 (6th Cir. 1975).
Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States: can we imagine that it would have been adopted by the States?
Id. at 15, 10 S.Ct. at 507. With this fiction, the Supreme Court prevented States from being sued by one of its own citizens — a fiction that remains in effect to the present day.
The first issue which this Court must resolve is whether the University is an extension of the State of Michigan. "[T]he application of the Eleventh Amendment turns on whether said agency or institution can be characterized as an arm or alter ego of the state. . . ." Hall v. Medical College of Ohio, 742 F.2d 299, 301 (6th Cir. 1984) (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 57273, 50 L.Ed.2d 471 (1977)), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985). In resolving the applicability of the Eleventh Amendment, the Supreme Court has made clear that "when the action is in essence one for the recovery of money from the state, the state is the real, substantive party in interest and is entitled to invoke its sovereign immunity. . . ." Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945) (citations omitted); See Estate of Ritter v. University of Michigan, 851 F.2d 846, 850 (6th Cir. 1988).
An analysis of the appropriate Michigan statutes convincingly demonstrates that the University is an extension of the State and entitled to immunity. Article VIII, Section 4 of the Michigan Constitution authorizes the Legislature to appropriate funds with which to maintain the University. The Legislature has also defined the University as being the equivalent of the "State" for purposes of governmental liability. Most importantly, any judgment against the University will be paid out of the State's tax revenues. Based on the relief sought by Moore and the University's constitutional and statutory structure for its funding and liability, the University is clearly within the meaning of "State" as defined in Ford Motor Co. See Hutsell v. Sayre, 5 F.3d 996 (6th Cir. 1993) (under similar analysis, University of Kentucky and its board of trustees were entitled to Eleventh Amendment immunity), cert. denied ___ U.S. ___, 114 S.Ct. 1071, 127 L.Ed.2d 389 (1994).
"The legislature shall appropriate moneys to maintain the University of Michigan, . . . by whatever names such institution may hereinafter be known, . . ." Mich. Const. art. VIII, § 4.
"State" is defined as "the state of Michigan and its agencies, departments, commissions, courts, boards, councils, statutorily created task forces, and shall include every public university and college of the state. . . ." Mich.Comp. Laws § 691.1401(c) (1979).
"When any judgment or decree is obtained against any corporate body, or unincorporated board, now or hereafter having charge or control of any state institution; the amount thereof shall be included and collected in the state tax and paid to the person entitled thereto." Mich. Comp. Laws § 600.6095 (1979).
This case presents a question of first impression within the Sixth Circuit as to whether § 3730(h) of the False Claims Act abrogates the states' sovereign immunity under the Eleventh Amendment.
The Eleventh Amendment does not bar Congress from creating federal jurisdiction for state liability. Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). Rather, "Congress may, in determining what is `appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Id. (citing Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945)). In doing so, Congress must use unequivocal statutory language to abrogate the states' Constitutional immunity. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). In Atascadero, the Supreme Court was asked to determine whether a state could be sued in federal court for retroactive monetary relief under a federal statute. The plaintiff in that case alleged employment discrimination by the State of California in violation of Section 504 of the Federal Rehabilitation Act which reads in pertinent part: "No otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, . . . be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." Id. at 245, 105 S.Ct. at 3148-49 (quoting 29 U.S.C. § 794 (1982)). The Court began the Eleventh Amendment discussion by stating that "it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides the guarantees of the Eleventh Amendment. The requirement that Congress unequivocally express this intention in the statutory language ensures such certainty." Id. at 243, 105 S.Ct. at 3147-48. After reviewing the statutory language, the Court determined that the language was a general authorization for suit in a federal court and "not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Id. at 246, 105 S.Ct. at 3149.
A statute that adequately abrogates the Eleventh Amendment was identified by the Supreme Court in Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989), which declared the following language to be sufficient: "A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of [several enumerated provisions] or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance." Id. at 229-30, 109 S.Ct. at 2401 (quoting 42 U.S.C. § 2000d-7(a)(1) (1982 Supp. IV 1986)).
Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys' fees. An employee may bring an action in the appropriate district court of the United States for the relief provided in this subsection.
U.S.C. § 3730(h) (1998). This subsection is silent on the issue of immunity and does not specify that the United States must be a party to a claim of retaliation. When the provisions of § 3730(h) are compared to the rationale and conclusions in Dellmuth, it becomes readily apparent that the silence in this subsection falls short of the unequivocal statutory language that is necessary to abrogate the Eleventh Amendment.
Congress did specifically abrogate the States' Eleventh Amendment immunity for actions brought under § 3730(b)(1). The Eleventh Amendment plays no role in this subsection because an individual is permitted to initiate a lawsuit on behalf of the United States. "[N]othing in [the Eleventh Amendment] or any other provision of the Constitution prevents or has ever been seriously supposed to prevent a State's being sued by the United States." United States v. Mississippi, 380 U.S. 128, 140, 85 S.Ct. 808, 815, 13 L.Ed.2d 717 (1965).
A person may bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government. The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.
31 U.S.C. § 3730(b)(1) (1988).
Moore insists that the application of the Eleventh Amendment would not be appropriate given that the lawsuit was brought on behalf of the United States. He cites §§ 3731(b), 3731(c) and 3732(a) to support this proposition. Although these provisions fail to differentiate between the main qui tam action and a retaliatory claim, none of these sections indicate that the United States is a party in the retaliatory claim under § 3730(h). This ambiguity is not the type of specific language that is sufficient to abrogate the application of the Eleventh Amendment.
During a hearing before this Court, Moore cited § 3733 for the proposition that "person" includes a state in the enforcement of civil actions for false claim under § 3730, and, by virtue thereof, Congress has abrogated the states' immunity. While this section does define "persons" to include states, the definition is only for the purposes of § 3733. This section deals with a false claims investigation prior to the commencement of a proceeding under § 3730, and requires "persons" to produce information for the purpose of a civil investigation. Contrary to Moore's assertion, § 3733 does not lend any support to his argument that Congress has abrogated the Eleventh Amendment under the circumstances of this case. Borrowing definitions from one section to cover another section cannot be construed to be express language and would represent a deviation from the edict in Atascadero.
Further, Moore's reliance upon United States ex rel. Milam v. University of Texas M.D. Anderson Cancer Center, 961 F.2d 46 (4th Cir. 1992) and United States v. Rockwell International Corp., 730 F. Supp. 1031 (D.Colo. 1990) is misplaced. The court in ex rel. Milam held that the Eleventh Amendment plays no role in a claim under § 3730(b)(1) because it is an action by the United States. Ex rel. Milam, 961 F.2d at 50. In dicta, the court stated that the False Claims Act is silent on the states' Eleventh Amendment immunity which, in turn, leaves the immunity intact. Id. at 50 n. 3. This position supports the conclusion of this Court (to wit, § 3730(h) does not abrogate the Eleventh Amendment).
In Rockwell, the district court held that if the United States declines to intervene in an action under § 3730(b)(1), the character of the case does not change and continues to be an action by the federal government. Rockwell, 730 F. Supp. at 1035. The court supported this holding by pointing to the need for joint consent by the Attorney General and the court as a condition precedent to the dismissal of the lawsuit. Id. The Rockwell holding is inapposite to the present controversy. Thus, neither Rockwell nor ex rel. Milam authorizes any abrogation for the individual retaliation suits that were brought under § 3730(h).
Notwithstanding Moore's position, this Court must confine its review to whether the particular statute evinces an unequivocal intent to abrogate the states' Eleventh Amendment immunity. Atascadero, 473 U.S. at 243, 105 S.Ct. at 3147-48. This Court is further restrained from considering the benefits of a single forum because "the significance of this Amendment `lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III' of the Constitution." Id. at 238, 105 S.Ct. at 3145 (quoting Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984)). Because § 3730(h) is silent on the issue of Eleventh Amendment immunity and does not make the United States a party to the claim, this Court must conclude that Moore's federal claim against the University be dismissed.
The Eleventh Amendment forecloses, however, the application of normal principles of ancillary and pendant jurisdiction where claims are pressed against the State. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). As we held in Pennhurst: "[N]either pendant jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment. A federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment." Id. at 121, 104 S.Ct. at 919.
County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 251, 105 S.Ct. 1245, 1260, 84 L.Ed.2d 169 (1985).
The Michigan Whistle-Blowers' Protection Act grants a waiver by the State to be sued in state court. No clear language in the statute — indeed no language at all — suggests an abrogation of Michigan's Eleventh Amendment immunity. The Sixth Circuit has recognized that the federal courts have consistently construed the states' waiver of immunity to be limited by the express terms of the statute. Johns v. Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir.) (citing Florida Dept. of Health v. Florida Nursing Home Assn., 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981)), cert. denied, 474 U.S. 824, 106 S.Ct. 79, 88 L.Ed.2d 65 (1985). "Thus, the fact that the state has waived immunity from suit in its own courts is not a waiver of Eleventh Amendment immunity in the federal courts." Johns, 753 F.2d at 527 (quoting Edelman, 415 U.S. at 677 n. 19, 94 S.Ct. at 1362-63 n. 19). Moore's argument of judicial economy, conveyance, and fairness to litigants, cannot override the Constitutional limitations that have been placed upon federal jurisdiction by the Eleventh Amendment. Therefore, because there is no evidence of a waiver by the State of Michigan of its Constitutional immunity, this Court is without any authority to exercise its supplemental jurisdiction over Moore's state law claim.
The Whistle-Blowers' Protection Act definitions read in pertinent part: "Employer includes an agent of an employer and the state or a political subdivision of the state." Mich.Comp. Laws Ann. § 15.361 (West 1994).
For the reasons that have been set forth above, this Court will grant the University's Motion and dismiss the remaining federal and state law claims without prejudice.


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Subject: Canadian Charter of Rights and Freedoms, Controlled Drugs and Substances act, Marijuana Medical Access Regulations, Declaration of Invalidity, Abuse of Process.
For thousands of years prior to its prohibition in the 20th century, cannabis was used as a medicine throughout the world. During the 19th century the potent extract of cannabis was one of the top three most prescribed medical agents in the United States. Until the 1937 Marijuana Tax Act, cannabis, being a powerful topical analgesic, muscle relaxant, anti-inflammatory, and anti-spasmodic agent, was found in virtually all fistulas, corn and mustard plasters, muscle ointments, and fibrosis poultices. The United States Pharmacopeia listed cannabis until 1942, after which it was removed under political pressure. The Pharmacopeia recommended cannabis for the treatment of over 100 illnesses, such as: fatigue, fits of coughing, rheumatism, asthma, delirium tremens, migraine headaches, and the cramps and depression associated with menstruation. In 1890, Dr. J. Russell Reynolds, Fellow of the Royal Society and the Physician in Order to Her Majesty's Household, stated in the journal Lancet that cannabis is ``one of the most valuable medicines we possess'' He even prescribed cannabis to Queen the late Victoria for PMS. In 1898 Sir William Osler, Professor of Medicine at the University of Oxford, stated that for migraine headaches, cannabis ``is probably the most satisfactory remedy’’ During the 20th century cannabis has been discovered to be an effective treatment for countless more ailments. For example, based on major research, Dr. Van Sim concluded that "marijuana ... is probably the most potent anti-epileptic known to medicine today" More powerful than standard anti-epileptic drugs, cannabis totally eliminated epileptic seizures in children not responding to surgery or other legal drug therapies. One such legal treatment used to treat epileptic children was drilling holes into their frontal lobes. Dr. Robert Hepler, Neuro-opthalmologist with the Jules Stein Eye Institute at UCLA, published a major study in the Journal of the American Medical Association in 1971 demonstrating that cannabis lowers intraocular pressure in the eyes. Glaucoma, a leading cause of blindness, is a condition in which intraocular pressures build up causing optical damage. Cannabis has been proven to reduce these pressures far better than legal drugs, allowing glaucoma patients to keep their vision so long as they use cannabis regularly. In the early 1970's both the Canadian and American Medical Associations agreed that marijuana is not a narcotic. The Le Dain Commission was allotted in Canada to undertake a complete and factual study of marijuana use and it's effects. The results of the study were presented to the government after four years and four million dollars worth of research. Like the New York La Guardia study of 1944, the Le Dain Commission recognized that the use of marijuana is not linked to violent crime in any way. It also concluded that prohibitionary laws have only served to create a sub-culture with little respect for the law and law enforcement, as well as diverting law enforcement capability, clogging the judicial system, and providing a base of funds for organized crime. The recommendations of the Le Dain Commission ranged from outright legalization to small fines for marijuana use.
Research at the Harvard Medical School published in the New England Journal of Medicine demonstrated conclusively that cannabis is the most effective anti-nausea agent available. It has been used in this regard to eliminate the violent nausea and vomiting experienced by cancer patents undergoing chemotherapy. Cancer ward workers have been known to turn a blind-eye on cannabis smoking in the hospital. Based on extensive anecdotal evidence, cannabis, with its known appetite-stimulating effects -- described by users as "getting the munchies" -- is known to counter the "wasting syndrome" of full-blown AIDS. During this syndrome an AIDS patient, loosing all appetite, quickly loses weight in a free-fall to death. In case after case, AIDS patients have totally reversed their weight loss with the use of cannabis. Marijuana is one of the oldest natural herbs known to human beings. It is also one of the safest, as it is impossible to consume enough to produce a toxic effect in the body. "Nearly all medicines have toxic, potentially lethal effects. But marijuana is not such a substance. There is no record in the extensive medical literature describing a proven, documented cannabis-induced fatality...Simply stated, researchers have been unable to give animals enough marijuana to induce death...In practical terms, marijuana cannot induce a lethal response as a result of drug-related toxicity...In strict medical terms marijuana is far safer than many foods we commonly consume...Marijuana, in its natural form, is one of the safest therapeutically active substances known to man." - DEA Administrative Law Judge, FL Young, 1988.
In 2002 Canada’s Senator Nolin’s Report on the Non Medicinal Uses of Marijuana had similar findings also calling for the legalization, regulation and taxation of marijuana identically to that of alcohol and tobacco. Without political libido it was only the courts that let the cannabis camel’s head under the tent started the beginning to the end for almost a century of unconstitutional cannabis laws.
The prohibition of marijuana through the enactment of the current and past marijuana laws was nothing more than the irrational attempt to re-litigate a failed prohibition law originally known as the Volstead acts which legislated the prohibited of the drug alcohol in the 1920’s. Canada of the past would never have contemplate the enactment of any alcohol or any other such prohibition type laws and throughout the US alcohol prohibition period Canada amounted vast amounts of wealth from its domestic and its illegal US exportation alcohol industries. History demonstrates that Canada has never before followed blindly any unjust foreign law or policy. Canada was known as the underground railroad terminal for run away slaves, it gave conscientious objectors and draft dodgers the chance to live their life free from killing. But with Cannabis Canada has become little more than mice following the Pied pipe Uncle Sam’s war on the devil weed.
3. (1) Except as authorized by this Act or the regulations, no person shall have a narcotic in his possession.
(b) on conviction on indictment, to imprisonment for a term not exceeding seven years.
Seven years can you believe it just for simple possession of Cannabis! Hard to fathom in today’s standards but nevertheless many Canadians did spend seven years behind bars for this unconstitutional law. Even some famous ones such as CBC radio personality Rosie Rowbothum. Who holds the record for the longest incarceration for simple possession yup 7 years!!!! These federal statutes like their alcohol predecessors have also shaped a sophisticated criminal underworld and a plethora of corrupt bureaucrats at a level in the Multi-trillions if dollar. That would leave even Scar face himself breathless. Carleton University sociology professor Florence Kellner who has been monitoring the legal debate around pot since the 1970s believes that arrest levels for possession will probably continue to rise depending on where police focus their activities, she says. And debate about the laws will continue. Kellner says the issue of what to do about pot laws is “a political hot potato” between the federal government and the police, and there is added pressure from the United States. In the early 1970s, the Canadian Royal Commission on Non-Medical Use of Drugs recommended legalizing pot. Parliament even tried unsuccessfully in 1996 to relax pot laws by replacing criminal penalties with fines for possession of small amounts.
"The political will isn’t there, and it’s politically dangerous for any incumbent politician to bring (legalization) forward as a cause,” Kellner says. "It’s maybe two steps forward and two steps back,” she says.
This analogy from the perspective of the law enforcement community could not ring truer. In 1920, one year before MacKenzie King became Prime Minister of Canada, the Opium and Drug Branch was established by the Department of Health, and was put in charge of enforcing narcotics legislation. The RCMP worked very closely with the Drug Branch, and their service was rewarded with ever more lenient laws regarding their right to search and seize the property of suspected drug users. During this period three states in the US had made cannabis illegal, all without the benefit of any scientific studies. These laws were put in place to harass and deport the minority groups who favored different drugs than those of the European population. These unfounded and racist laws were to find their way into Canada, assisted by Maclean's Magazine, which in the early 1920's ran a series of articles about the illicit drug trade in Canada. This level of unconscionable cannabis persecution continued relentlessly until finally one day an epileptic man from Toronto decided he could stand it no longer. His case ended the Narcotic Control Act ushered in the 1996 Controlled Drugs and Substances act and returned medical marijuana to Canada.
Terrance “Terry” Parker suffered from a very severe form of epilepsy since he was a young child. For close to 40 years he had experienced frequent serious and potentially life-threatening seizures. His physicians had attempted to control these seizures through surgical procedures including drilling holes into his frontal lobe as well as other various conventional toxic medications. The surgery a failure left him feeling surgically assaulted and the conventional medication were only moderately successful. After lengthy research and trial and error he had found that by smoking marihuana he could substantially reduce the incidence of seizures. Since of course he had no legal source of marihuana, he was left with the choice of either associating with the illicit “black market’ or he had to grow it himself. On two occasions, the police searched his home and seized the marihuana. He was first charged with cultivating marihuana under the Narcotic Control Act. By the time of the second investigation, that Act had been repealed and he was charged with Possession of marihuana under the new Controlled Drugs and Substances Act. The former Narcotic Control Act and the Controlled Drugs and Substances Act both prohibit under threat of imprisonment the possession and cultivation of marihuana. That prohibition is theoretically not absolute. Both statutes contemplate that drugs like marihuana may have medicinal value and therefore should be available through a regulatory process. If a drug receives the necessary regulatory approval, it can be made available to the public through a physician’s prescription. Parker decided to fight the charges against him by attempting to show that the prohibition on the cultivation and possession of marihuana in the two statutes were unconstitutional. The court declared the marihuana prohibition in s. 4 of the Controlled Drugs and Substances Act to be invalid, and further declared that had the offence of cultivation had been challenged then that provision would also be invalid. The court then suspended the declaration of invalidity for a period of twelve months from the release of their reasons to provide time for the government to rewrite the law.
The court then ordered the respondent exempt from the marihuana prohibition in s. 4 of the Controlled Drugs and Substances Act during the period of suspended invalidity for possession of marihuana for his medical needs. The court also read-in a medical exemption into the former Narcotic Control Act and the Controlled Drugs and Substances Act and ordered the return of his seized cannabis plants.
I would like to apply for a grower’s license or permit so I can supply not only my needs but those of others as well. I would like to recruit a botanist and an experienced grower to develop strains and pedigrees for clinical trials.
Even with an exemption from two CDSA criminal provisions Wakeford was still no closer to his constitutional right to medical marijuana. Because his health was to unstable to grow the marijuana and the only supply in Canada was through the illicit criminal market. At the appeal the government mislead the court into believing it was in the process of securing a domestic supply of marijuana and was thus able to avoid further section 7 charter violations for the lack of supply issue. However the Justices did note that in R. v. Latimer (2001), 150 C.C.C. (3d) 129 (S.C.C.) the court seemed to leave open the possibility of a constitutional exemption if the application of valid legislation would result in the infliction of cruel and unusual punishment in violation of s. 12 of the Charter. Section 12 was not raised in this case. Had it been, than a domestic, medi-care covered supply medical marijuana would already be available at all Canadian pharmacies. For reasons unbeknownst to this author it was not. This error will be rectified in the ongoing charter challenge test case which I am lead counsel on Carlisle and Krist v. HMTQ.
Realizing that the Wakeford and Parker cases needed further arguments to challenge the cannabis laws the same lawyers combined Parker with several other plaintiffs including licensed patients, medical growers and even a Toronto compassion club director to attack the cannabis laws on multiple fronts.
In Hitzig the court found there exists a strong body of opinion supporting the claim that marihuana offers some individuals invaluable relief from a variety of debilitating symptoms associated with serious long-term illnesses such as AIDS, cancer and epilepsy. This support is based largely on personal experience and anecdotal evidence of individuals and their doctors. In 1999 the Government began to develop a policy with respect to the use of marihuana for medical purposes. That policy is a work in progress. Some of those who are seriously ill and gain significant relief from some of their symptoms by using marihuana see the government policy as a mean-spirited and grudging attempt to do only what the law absolutely demands. This viewpoint is understandable but ignores the complexity of the problem faced by the Government. On the one hand, the courts, relying on evidence of individuals' personal experiences and anecdotal evidence have determined that some seriously ill persons derive substantial medical benefit from the use of marihuana. The pronouncements in these cases reflect the normal process of judicial fact-finding made in the context of an adjudicative process based on the evidence and arguments led by the parties in a given case. These factual findings have in turn provided the basis for the legal conclusion that s. 7 of the Charter requires that a medical exemption be carved out of any criminal prohibition against the possession of marihuana. In developing a medical marihuana policy, the Government must respect individual constitutional rights as defined by the courts but, at the same time, be guided by the opinions of its medical experts concerning the health and safety of its citizens. As a legal policy, the medical marihuana policy must meet the requirements of s. 7 of the Charter.
The Hitzig applicants respond that the MMAR, combined with the criminal prohibitions against possession, distribution and cultivation in the CDSA, impact on both their liberty interest and their right to security of the person. They argue that the Government's scheme significantly limits their ability to make fundamental personal medical choices involving the treatment of very serious illnesses. The Hitzig applicants argue that the absence of a legal source of supply from which their legitimate medical needs can be filled is a direct result of state action that permits the lawful possession of marihuana for medical purposes, but does not provide for a legal supply to meet that recognized need. They contend that the absence of a legal source of supply is a direct result of both the MMAR and the criminalization of the conduct of anyone who would supply medical marihuana to individuals entitled to possess it for medical purposes. Lastly, the Hitzig applicants contend that a scheme, which drives seriously ill people who have a demonstrated medical need for marihuana to the black market to meet that need, is obviously and profoundly contrary to the principles of fundamental justice and cannot be saved by s. 1. In R. v. Parker, supra, this court declared the prohibition invalid as of July 31, 2001 if by that date the Government had not enacted a constitutionally sound medical exemption. Our decision in this case confirms that it did not do so. Having found that the MMAR do not create a constitutionally valid medical exemption to the criminal prohibition in s. 4 of the CDSA, we must now shape a declaration under s. 52 of the Charter which responds to the constitutional shortcomings of the MMAR. We must then determine whether that order should be suspended. As we shall explain, we have concluded that a precisely targeted declaration is appropriate and that it should not be suspended. This decision reaffirmed the court position regarding medical marijuana but what about the prosecution of non medical marijuana users in light of the continued unconstitutionality of the CDSA. The answer to that question fell to a 16 year Ontario high school student known as “JP”.
J.P. made application to Phillips J. to declare that s. 4(1) of the Controlled Drugs and Substances Act, no longer prohibits simple possession of marihuana, and as a consequence thereof, Count 1 and 2 of the information did not disclose offences known to law. "The Applicant's submission distilled to its core, is that the Court of Appeal in Parker, having determined that s. 4(1) of the Act (as it applied to the possession of marihuana) was constitutionally invalid, and having suspended that finding for 12 months, had left Parliament with no choice but to amend or re-enact it (prior to lapse of the suspension) if Parliament were to preserve the prohibition on marihuana possession. As it turns out, Parliament did neither instead Regulations were enacted. In my view, that is entirely within Parliament's prerogative (i.e. Parliament could choose to do nothing and allow another mechanism, namely approval of a regulation by order-in council, to remedy the defect), provided that there is a correction addressing the underlying faults found in Parker. Therefore, since a statutory framework with guiding principles was not enacted within the period of the suspension of the declaration of invalidity, it follows in my view that the declaration is now effectively in place. In light of that analysis the young person's application must succeed."
As of July 31/01, s. 4 of the Controlled Drugs and Substances Act as it related to marihuana was invalid. Section 4 includes the penalty section. "A statute which is of no force or effect confers no rights. In the absence of a direction to the contrary, a declaration that a law is of no force or effect, invalidates the law from the time when the Charter (here s. 15) came into force or the legislation was enacted, which ever is later. Since s. 4 of the Controlled Drugs and Substances Act has not been re-enacted, as it relates to marihuana, there is no penalty in the act for simple possession of marihuana even if it had been prohibited by the Medical Marihuana Access Regulations. It is to be noted, that there are no penalty sections set out in the Medical Marihuana Access Regulations.
I think it safer to hold that no one shall be convicted of a crime unless the offence with which he is charged is recognized as such in the provisions of the Criminal Code, or can be established by the authority of some reported case as an offence known to the law. I think that if any course of conduct is now to be declared criminal, which has not up to the present been so regarded, such declaration should be made by Parliament and not by the Courts. However even with the Ontario courts continued position that the CDSA possession charge has been invalid since July 31 2001 other jurisdiction were continuing to charge and convict persons for this and all other CDSA offences. SO it was no surprise to hear the provinces one by one reaffirmation of the CDSA’s untimely demise.
Kurtis Lee Masse stands charged on information 62876-1, that on or about the 21st day of February, 2003 at or near the City of New Westminster, he did unlawfully possess a controlled substance, to wit: Cannabis (marihuana), contrary to Section 4(1) of the Controlled Drugs and Substances Act The issue before the court was simply; is possession of cannabis (marihuana) an offence known to law in British Columbia? Counsel for Mr. Masse submitted that this court should apply the reasoning in reasons for judgment in Parker and Clay to find s.4(1) of the Controlled Drugs and Substances Act to be of no force and effect with respect to marihuana since July 31, 2001 and apply the reasoning in reasons for judgment in J.P. to find that the invalidity cannot be cured by the Medical Marihuana Access Regulations. Counsel for Mr. Masse submits in the alternative, that this court should apply the reasons for judgment in Hitzig to find that the Medical Marihuana Access Regulations are themselves unconstitutional and inadequate to cure the invalidity of s. 4(1).
The Court agreed with the decision in Hitzig that the MMAR were inadequate for this purpose because, as long as there is no legal supply of marihuana for persons requiring it for medical use, the infringement on s. 7 Charter rights identified in Parker has not been cured. The enactment of the Marijuana Exemption (Food and Drugs Act) Regulations on July 8, 2003 may or may not address the concerns raised in Hitzig but came too late to have any effect on the declaration of invalidity in Parker. July 31, 2001 had, by that time, already come and gone, and the legislation had already been rendered invalid. Once invalid, it became a nullity and could not be resuscitated; it could only be re-enacted. It follows therefore, that there is no offence known to law at this time for simple possession of marihuana.
This was an appeal from a PEI provincial court decision where a stay of proceedings was imposed for the respondent for the offence of possession of marijuana contrary to section 4(1) of the CDSA on the basis that it did not disclose an offence known to law. There was no evidence adduced nor was there any plea entered by the accused. The issue before the court was whether the federal crown was bound by the decision of the Ontario Court of Appeal in R v. Parker, and the subsequent decisions in R. v. J.P. and Hitzig v. Canada. The defense argued that crown was estopped from arguing that its marijuana possession law is valid in Prince Edward Island when it has been declared invalid in a decision which, as a final judgment, binds it in Ontario? Does issue estoppel apply in this matter to preclude the Crown from re-litigating the issue of the validity of its legislation which was found to be invalid in Parker? And finally, even if issue estoppel does not apply, would it constitute an abuse of this court’s process if the Crown were permitted to re-litigate the issue which was finally determined in Parker when the Crown chose not to appeal the Parker decision? Judge Thompson found that issue estoppel was not available as no plea had yet been entered. He then addressed the issue of abuse of process. He found that the Ontario Court of Appeal in Parker had struck down s. 4 of the CDSA as it related to marihuana possession as of July 31, 2000, subject to a one-year suspension, to afford Parliament the opportunity to pass remedial legislation. He further found that Parliament had not complied with the remedy required by Parker, because the Marihuana Medical Access Regulations (MMAR) enacted on July 30, 2001, were held to be inadequate to save s.(4) by the courts in J. P. and Hitzig. He concluded that since the Ontario court ruling in Parker was in effect, the Federal Crown cannot be permitted to contend that this final judgment is restricted to the Province of Ontario, because to hold otherwise would permit the Federal Crown to re-litigate the same issue in every jurisdiction of Canada. He stressed the importance of the law having national application where the Federal Crown has jurisdiction, and pointed out that 1/3 of the country’s population residing in Ontario is immune from prosecution for possession of marihuana, while persons residing in other provinces are not, if the Crown’s position were accepted.
to avoid an abuse of its own process. All residents of Canada, wherever they are situated, are entitled, in fairness, to expect a uniformity of approach from the Federal Crown, wherever it performs its prosecutorial function. Until such time as the law is changed by Parliament, or the higher courts provide a ruling which will enable such approach, this charge involving the simple possession of marijuana will not proceed in this court.
This was an application to have this charge dismissed, stayed, or held in abeyance, pending the final determination of the cases of Hitzig, J.P. from the Ontario Courts and now, most recently, Stavert[, a decision of the Provincial Court of Prince Edward Island, all presently on appeal. Based on the decisions in these cases, Defense submitted that the possession of marihuana charge is an offence not known to law as a result of the Parker decision of the Ontario Court of Appeal which declared Section 4(1) of the C.D.S.A. invalid because it failed to allow for the legal possession of marihuana for medical reasons; which was interpreted and followed in the J.P. case in which the Court found that the government’s response to the Parker decision failed to satisfy the intent of Justice Rosenberg in Parker and affirmed the invalidity of Section 4(1) of the C.D.S.A., as have the Courts in Barnes[, Hitzig and now Stavert.
Mr. Doughty further argues that to allow this prosecution to proceed would be an abuse of process; first, because of the state of flux of the law as the Parker decision was not appealed by the Crown; secondly, that simple possession of marihuana may soon be decriminalized, as noted in Stavert by Chief Judge Thompson where he acknowledged the September 2002 report of the Senate Special Committee on Illegal Drugs has recommended that the Government of Canada amend the C.D.S.A. to create a legislated criminal exemption scheme for the production and sale of cannabis; and thirdly, that should this prosecution proceed, that it would be the Federal Crown’s fourth attempt to re-litigate the same issue.
The court was satisfied that the high test had been met in deciding whether this case rises to the level of an abuse of process. It find that it would be oppressive and vexatious to allow the prosecution of Ms. Clarke on the charge of marihuana possession to continue, given the state of this law in the Provinces of Ontario and Prince Edward Island. To do otherwise would undermine the fundamental justice of the system. It further found that this case is one of those “clearest of cases” where a stay of proceedings should be entered by this Court in order to avoid an abuse of its own process.
I was born in Montreal on October 4th 1969 and later adopted into an Irish English Protestant-Catholic home on the West Island. Although my education was completely francophone both of my parents spoke mostly English at home. During the French- English conflict in Montreal my parents fearing the worst they immigrated the family to the Eastern United States to the town of Randolph Vermont. At the age of eight I was placed in the multi-age class which combined grades three through six. In multiage the students were allowed to advance at their own individual speed within this environment I was able to blossom academically. This class assisted in identifying me quite early as a gifted child.
Before I was sent to a private school for gifted students in Maine I spent a year learning discipline at a military in Ontario. I was afforded a comprehensive education with my studies including; Law, Government, physics, Egyptology and Latin. In September 1994 I enrolled in the General Studies program at University College of the Fraser eventually transferring into the Criminal Justice department. Since September 2005 I have been studying Canadian Constitution law at UBC prestigious school of law in Vancouver. Professionally I have over a decade of experience working in the legal field as a Bailiff, legal Assistant, Advocate and an Independent paralegal. Over the years I have been directly involved in changing the marijuana laws through the Canadian Judicial system. Some of my most notable accolades were as the President of a Compassion Club and as a Health Canada Medical Marijuana Stakeholder. Many marijuana users have benefited greatly by using the same sort of common law charter arguments included yours truly (R. v. Carlisle BCSC2003) as their defense to cannabis charges. Even before the Parker decision common law charter defenses were setting the stage for the changes to come. Precedent cases like my late great friends Wesley Winchester case (R v. Winchester BCSC 2002). It is my humblest hopes that this book will also help many others to fight marijuana charges until this prohibition of cannabis is also a thing of the past.

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The Complainant is Primal Quest, LLC, Morgan Hill, California, United States of America, represented by Donald M. Gindy, P.L.C.
The Respondent is Gabriel Salas, Bryan, Texas, United States of America.
The disputed domain name <primalquest.com> is registered with NameSecure, LLC (“NameSecure”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) in hardcopy on October�13,�2005. On October�14,�2005, the Center by email acknowledged receipt of the Complaint. On October�31,�2005, the Center notified Complainant that the Complaint was administratively deficient due to a failure to submit the Complaint in electronic format, as required by the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”). In response, on November�1,�2005, the Complaint was filed with the Center by email.
On October�14,�2005, the Center transmitted by email to NameSecure a request for registrar verification in connection with the domain name at issue. On October�17,�2005, NameSecure transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative and technical contacts.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules, and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on November�2,�2005. In accordance with the Rules, paragraph 5(a), the due date for the Response was November�22,�2005.
The Response was filed with the Center by email on November�19,�2005, and in hardcopy on November�22,�2005. On November�22,�2005, the Center by email formally acknowledged receipt of the Response.
The Center appointed David H. Bernstein as the sole panelist in this matter on December�1,�2005. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant, a California corporation, owns a United States service mark registration for PRIMAL QUEST (Registration Number 2,757,075) for “entertainment and sporting event services, namely organizing and conducting sporting competitions featuring a wide variety of sports; a television series featuring a wide variety of sports events.” Complainant filed its trademark application on October�4,�2001; the U.S. Patent and Trademark Office issued the registration on August�26,�2003. Complainant alleged in its application that the date of first use and first use in commerce of its PRIMAL QUEST mark was March�12,�2002.
Complainant also owns a United States service mark registration for PRIMAL QUEST EXPEDITION ADVENURE RACE (Registration Number 2,789,381) (together, with PRIMAL QUEST, the “Marks”) for the same services; that application also was filed on October�4,�2001 and was issued on December�2,�2003. Complainant alleged in that application that the date of first use and first use in commerce for its PRIMAL QUEST EXPEDITION ADVENTURE RACE mark was October�2001.
Respondent registered the <primalquest.com> domain name (the “Domain Name”) on April�11,�2000.
Complainant contends that the Domain Name is identical or confusingly similar to its Marks.
Complainant alleges that Respondent lacks any rights or legitimate interests in the Domain Name. Complainant contends that, throughout the period in which Respondent has owned the Domain Name, it has been “parked” or not used in connection with the bona fide offering of goods or services. Complainant further alleges that Respondent has not done anything tangible towards using the Domain Name for the bona fide offering of goods or services. Complainant asserts that Respondent is not commonly known by the Domain Name.
Complainant alleges that the Domain Name was registered and used in bad faith. Complainant contends that Respondent purchased the Domain Name for the purpose of resale and that Respondent currently is demanding $300,000 for the Domain Name, a price far in excess of Respondent’s actual costs when he acquired the Domain Name. Complainant asserts that Respondent is in the business of selling domain names for profit. Complainant states that Respondent’s actions have caused actual confusion and that Complainant’s consumers have reported difficulty in locating Complainant’s presence on the Internet. As a result, Respondent has misled users by directing them away from Complainant and has harmed Complainant’s business interests.
Respondent admits that his asking price for the Domain Name is $300,000, but claims that that amount represents what he could sell it for in the future after the associated website is fully developed. Respondent claims that he is not presently taking action to sell the Domain Name other than listing a price next to the Domain Name on one of his websites, but he would be willing to sell it. Respondent asserts that he is not in the business of selling domain names in which he is aware that another party owns legitimate rights.
It is by now well established that, to prevail, a UDRP complainant must prove both bad faith registration and bad faith use. Policy, paragraph 4(a)(iii); e-Duction, Inc. v. Zuccarini, WIPO Case No. D2000-1369 (February�5,�2001). Complainant’s allegations, though, focus almost exclusively on Respondent’s alleged bad faith use of the Domain Name and largely ignore the issue of whether Respondent registered the Domain Name in bad faith.
Complainant’s only attempt at suggesting that the registration was in bad faith is the conclusory allegation that Respondent registered the Domain Name for the purpose of resale. Respondent denies that allegation, but even if it were true, that alone would not establish bad faith registration. The sale of domain names comprised of common terms, without some indicia of bad faith, is neither unlawful nor evidence of cybersquatting; it is only when domain names are registered for resale with knowledge that the names consist of another’s trademark that the conduct fairly may be characterized as cybersquatting. General Machine Products Company, Inc. v. Prime Domains (a/k/a Telepathy, Inc.), NAF Claim No. FA 92531 (January�26,�2000); Allocation Network GmbH v. Steve Gregory, WIPO Case No. D2000-0016 (March�24,�2000); see also Etam plc v. Alberta Hot Rods, WIPO Case No. D2000-1654 (January�31,�2001); WIPO Decision Overview � 2.2 (“If a respondent is using a generic word . . . to profit from the generic value of the word without intending to take advantage of complainant’s rights in that word, then it has a legitimate interest”).
Accordingly, Complainant has failed to sustain its burden under paragraph 4(a)(iii) of the Policy. In light of this finding, the Panel need not consider the other UDRP factors because Complainant cannot succeed absent a showing of bad faith registration.
Although Respondent has not requested a finding of Reverse Domain Name Hijacking, under the Rules, the Panel must also consider whether Complainant is guilty of Reverse Domain Name Hijacking. Rules paragraph 15(e) (“If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.”); see also Rodale, Inc. v. Cambridge, WIPO Case No. DBIZ2002-00153 (June�28,�2002).
Complainant was represented by counsel in this matter, and counsel was obviously familiar with the WIPO Decision Overview (given that it cited Section 2.1 of the WIPO Decision Overview in the Complaint for the proposition that, with respect to the second UDRP factor, a complainant need only make a prima facie showing of a lack of legitimate interest). That same WIPO Decision Overview, as noted above, clearly states that bad faith registration cannot exist if a respondent registered a domain name prior to the acquisition of trademark rights by the complainant. It thus appears that Complainant sought to obtain the Domain Name through this proceeding despite the fact that its Complaint had no possibility of success in light of both the clear language of the Policy and the consensus view of Panels applying the Policy. On this basis alone, a finding of Reverse Domain Name Hijacking may be appropriate.
Also informing the Panel’s judgment is that Complainant appears to have engaged in bad faith conduct in its attempt to obtain the Domain Name from Respondent prior to the filing of this Complaint. Specifically, it appears that Complainant affirmatively misrepresented itself and its intentions�in its communications with Respondent.
Respondent submitted evidence that Complainant tried to obtain the Domain Name through deception. In April and May 2005, Richard Brazeau, Complainant’s CEO, telephoned Respondent a number of times inquiring about the Domain Name. In at least one of those conversations (recorded on Respondent’s answering machine, the recordings of which are part of the record in this case), Mr. Brazeau stated that he and his wife were trying to “branch out with a small little local–like–clothing line” and that, in connection with that clothing line, they were looking to acquire the Domain Name.3 Although parties are, of course, permitted to try to purchase Domain Names and have no obligation to disclose their true identities or intentions, it is not appropriate to induce the sale of a Domain Name through misrepresentation of the identity of the prospective purchaser or what it intends to do with the Domain Name. Cf. David H. Bernstein and D. Peter Harvey, Ethics and Privilege in the Digital Age, 93 Trademark Reporter 1240, 1253-54 (November-December �2003) (discussing Sunrise Assisted Living, Inc. v. Sunrise Healthcare Corp., Civ. Action No. 98-1702-A, slip ops. (E.D. Va. Apr. 9 &�28,�1999)).
Taken together, these facts warrant a finding of Reverse Domain Name Hijacking. See Goldline International, Inc. v. Gold Line, WIPO Case No. D2000-1151 (January�4,�2001) (finding Reverse Domain Name Hijacking where “Respondent’s registration and use of the domain name could not, under any fair interpretation of the facts, constitute bad faith”).
Because Complainant has not demonstrated all three elements required under the Policy, the Complaint is denied. Moreover, in light of Complainant’s actions, the Panel finds Complainant to have been guilty of Reverse Domain Name Hijacking.
1 As this Panel previously explained, although the WIPO Decision Overview is not precedential in nature, it does reflect a studied and considered summary of consensus positions culled from the decisions of numerous panelists during the first five years of administration of the UDRP. Fresh Intellectual Properties, Inc. v. 800Network.com, Inc., WIPO Case No. D2005-0061 (March 21, 2005). Accordingly, when such a consensus has developed, it is incumbent upon panels to follow the consensus (or the majority view) to promote consistency among UDRP decisions. See Howard Jarvis Taxpayers Association v. Paul McCauley, WIPO Case No. D2004-0014 (April 22, 2004).
2 There are certain limited exceptions to this rule, such as “when the respondent is clearly aware of the complainant, and it is clear that the aim of the registration was to take advantage of the confusion between the domain name and any potential complainant rights. . . . This often occurs after a merger between two companies, before the new trademark rights can arise, or when the respondent is aware of the complainant’s potential rights, and registers the domain name to take advantage of any rights that may arise from the complainant’s enterprises.” WIPO Decision Overview � 3.1. Complainant, however, does not allege any facts that would cause any of these exceptions to apply.
3 The Panel notes that Complainant has not sought to file a supplemental submission to contest the veracity of these allegations. Cf. Pacific Fence & Wire Co. v. Pacific Fence, WIPO Case No. D2001-0237 (June 11, 2001).

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§ 183-3 Scope; effective date.
§ 183-8 Authority and enforcement.
§ 183-12 Violations and penalties.
§ 183-13 Unsafe, unfit, or unlawful structures or equipment.
§ 183-14 Order to demolish.
§ 183-16 Registration of rental units.
§ 183-17 Recurring inspection of one- and two-family dwelling rental units.
§ 183-18 Inspection of multiple-family dwelling rental units.
§ 183-19 Certificate of continued building compliance; exceptions.
§ 183-21 Minimum room; area dimensions.
§ 183-22 Floor area and occupant load.
§ 183-24 Prohibited sleeping areas.
§ 183-26 Illegal occupancy resulting in overcrowding.
§ 183-27 Vacant land and structures.
§ 183-28 Exterior property areas.
§ 183-29 Exterior of structures.
§ 183-31 Interior of structures.
§ 183-32 Rubbish and garbage.
§ 183-33 Infestation and extermination.
§ 183-38 Plumbing systems and fixtures.
§ 183-40 Sanitary drainage systems.
§ 183-44 Elevators, escalators, and dumbwaiters.
§ 183-47 Means of egress.
§ 183-51 Registration of vacant and abandoned properties required.
§ 183-54 Maintenance of property; notice of violation.
§ 183-56 Violations and penalties.
Garbage, rubbish and refuse — See Ch. 142.
Editor's Note: This ordinance also repealed former Ch. 183, Property Maintenance, consisting of Arts. I, Residential Regulations, adopted 4-8-1976 by Ord. No. 798, as amended, and II, Nonresidential Regulations, adopted 1-9-1986 by Ord. No. 1260, as amended.