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Wilkins, Thurman. Clarence King. A Biography. Photo available. New York. Macmillan. 1958. Octavo. Decorated hard cover. First edition. Illustrated. Fine copy.
Wilkins, Thurman. Clarence King. A Biography. Photo available. Albuquerque. University of New Mexico Press. 1988. Octavo. Hardcover. Revised and enlarged edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Wilkins, Thurman. Clarence King. A Biography. Photo available. Albuquerque. University of New Mexico. 1988. Octavo. Soft cover. Revised and enlarged edition. Illustrated. Important reference work. Fine copy.
Wilkinson, Megan Michelle. What Ever Happened to Russell City, California. Photo available. San Francisco. Self published. 2002. 151 pps. Octavo. Soft cover. First edition. Important reference work. Fine copy. Like new.
Willard, John. The Charles M. Russell Book (CMR Book). Seattle. Superior Publishing. 1970. 63 pps. 4to. Hardcover. First edition. Illustrated in color and black & white. Foreword by Senator Mike Mansfield. Fine copy.
Williams, Brad. Lost Legends of the West. New York. Holt, Rinehart and Winston. 1970. 192 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Williams, Brad. Lost Legends of the West. Photo available. New York. Holt, Rinehart and Winston. 1970. 192 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Williams, Brad. Lost Legends of the West. Photo available. New York. Holt, Rinehart and Winston. 1970. 192 pps. Octavo. Hardcover. Stated first edition. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
Williams, Chuck. Bridge of The Gods, Mountains of Fire. A Return to the Columbia Gorge. Photo available. New York. Friends of the Earth. 1980. 4to. Hardcover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Williams, Chuck. Mount St. Helens. A Changing Landscape. Photo available. Portland. Graphic Arts Center. 1980. Folio. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Williams, Chuck. Mount St. Helens. A Changing Landscape. Portland. Graphic Arts Center. 1980. Folio. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Williams, George III. Rosa May: The Search for a Mining Camp Legend. Inscribed by the author. Photo available. Riverside. Tree by The River Publishing. 1991. Octavo. Soft cover. Second edition. Illustrated. Important reference work. Inscribed by the author "Sincerely hope you enjoy my books Love to hear from you. George Williams, III". Fine copy.
Williams, George, III. Rosa May: The Search for a Mining Camp Legend. Photo available. Riverside. Tree by the River Pub. 1982. Octavo. Soft cover. Reprint. Illustrated. Important reference work. Fine copy.
Willison, George F. The Gold Rush. The Search for Treasure in the American West. Photo available. New York. Indian Head Books. 1992. 299 pps. Octavo. Hardcover. Reprint. Illustrated. Important reference work. Fine (small owner name on end paper) copy in fine dust jacket (in mylar).
Wilshire, Howard G. The American West at Risk. Science, Myths, and Politics of Land Abuse and Recovery. Photo available. New York. Oxford University Press. 2008. Octavo. Hardcover. First edition. Illustrated. Important reference work. Fine copy.
Wilson, Bill G. Challenging The Mountains. The Life and Times of Wendell T. Robie. Photo available. Auburn. Robie Historical Foundation. 1998. 249 pps. 4to. Soft cover. Reprint. Illustrated. Important reference work. Fine copy.

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The U.S. Supreme Court granted certiorari in Guido v. Mt. Lemmon School District. — U.S. — , 138 S.Ct. 1165 (February 26, 2018). Presumably, it did so to resolve a Circuit split regarding the application of the Age Discrimination in Employment Act of 1967’s (ADEA) numerosity requirement, 29 U.S.C.A. § 630(b), to public employers. In Guido, the Ninth Circuit held that the numerosity requirement applied only to private employers, 859 F.3d 1168 (2017). In prior cases the Sixth, Seventh, Eighth, and Tenth Circuits had held that the numerosity requirement applies to both public and private employers. The leading decision was Kelly v. Wauconda Park District, 801 F.2d 269 (7th Cir. 1986), upon which the other three Circuits relied.
In this post, I will outline the interpretive problem that faces the Court. In doing so I will discuss a “clear statement” rule that has so far gone unmentioned. In my next post, I will examine whether public employers should be excused from the numerosity requirements employment discrimination statutes. I will suggest, based on the rationales for the numerosity provisions laid out with respect to Title VII, that application of such numerosity requirements governmental entities is not particularly appropriate.
(a) The term “person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, or receivers.
(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees . . .
(a) The term “person” means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.
(b) The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, . . .
(Emphasis added.) Notice, both statutes’ definition of “employer” incorporates the statute’s definition of “person.” Title VII extends the Act’s coverage by broadening the definition of “person,” while the ADEA does so by supplementing the definition of “employer” so as to include entities that fall outside the ADEA’s definition of “person.” This minor difference could have great significance.
At first blush, Guido will pit strong textualists, who will generally accept a clear expression of rights and obligations in statutory text without need for further explanation, against jurists generally inclined to favor sovereign immunity as well as those who inclined to seek explanations for apparent anomolous statutory text.
ADEA section 630’s text can most naturally be read to apply the numerosity requirement only to private enterprises (that is, only to “employers” that also satisfy the ADEA’s definition of “person”), particularly given that a similar amendment to Title VII just two years earlier, added governments, government agencies, and political subdivisions to the definition of person, making the numerosity requirement clearly applicable. For the textualist, such an analysis would ordinarily suffice to resolve the case. See, Chisom v. Roemer, 501 U.S. 380, 406 (1991)(Scalia, J., dissenting)(rejecting the concept that “Congress cannot be credited with having achieved anything of major importance by simply saying it, in ordinary language, in the text of a statute, ‘without comment’ in the legislative history”). As Guido’s author, Judge Diarmuid F. O’Scannlain, explained in rejecting the contrary Seventh Circuit precedent, “Kelly’s focus on divining congressional intent, rather than determining the ordinary meaning of the text, led it astray.” Id. at 1174. (Note, Judge O’Scannlain describes himself as a textualist in the mold of Justice Scalia, Diarmuid F. O’Scannlain, Lawmaking and Interpretation: The Role of a Federal Judge in Our Constitutional Framework, 91 Marquette L. Rev. 895, 900-903 (2008)).
But jurists who are not devoted textualists might wonder about the following questions. Why would the ADEA treat public employers and private employers differently? And if so, why reverse the usual pattern of showing greater solicitude to states, their political subdivisions, and their instrumentalities than to private entities, by subjecting the former to more expansive coverage? Why would the ADEA and Title VII not be expanded in parallel fashion? And, if one of the two statutes was to be accorded a broader reach, wouldn’t Congress have chosen Title VII rather than the ADEA? Age discrimination is serious, but surely racial and gender discrimination are the greater scourges. See Kelly, 801 F.2d at 273. It is not clear that anything in the legislative history would explain such a policy choices, if indeed Congress made consciously made such policy choices. The unexplained difference between the ADEA and Title VII can perhaps more credibly be ascribed to imprecise drafting than to a considered policy decision. Id. at 272. As the Kelly Court explained, “[j]ust because the language of a subsequent statute is not identical to the earlier statute on which it was modeled, we do not necessarily assume that Congress intended to change the meaning[,]” particularly where “Congress gave no indication that it intended to change the meaning.” Id.
Of course, the Supreme Court’s textualists have also tended to favor expansive sovereign immunity for state and local governments. (Justices Rehnquist, Scalia, and Thomas most clearly fit this mold, but so do Justices Powell, O’Connor, and Roberts to some extent. One might predict Justice Gorsuch will also fit that mold.) Perhaps the Court’s current textualists may be saved from the dilemma created by their “new textualist” and “new federalism” tendencies by the federalism “plain statement” rules. (For a broader discussion of the federalism clear statement rules, see William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992)).
One federalism clear statement rule provides that Congress must be explicit when it seeks to alter the customary balance between federal and state powers. In Gregory v. Ashcroft, 501 U.S. 452, 460, 464 (1991), the Court phrased the rule as follows: ‘it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides’ ” the “usual constitutional balance of federal and state powers.” In BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994), the Court quoted Justice Frankfurter in annunciating the test: “[f]ederal statutes impinging upon important state interests ‘cannot . . . be construed without regard to the implications of our dual system of government. . . . [W]hen the Federal Government takes over . . . local radiations in the vast network of our national economic enterprise and thereby radically readjusts the balance of state and national authority, those charged with the duty of legislating [must be] reasonably explicit.’” Id. (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 539–540 (1947)). A line of cases have applied one or the other of these precedents. See, e.g., Bond v. U.S., — U.S. —, 134 S.Ct. 2077, 2088-2090 (2014); Rapanos v. U.S., 547 U.S. 715, 738 (2006); Nixon v. Missouri Municipal League, 541 U.S. 125, 140-41 (2004). By requiring such an explicit legislative statement when Congress seeks to significantly alter the federal-state balance, the Court seeks to ensure that the “political protections” of federalism “kick in.” Gregory v. Ashcroft, 501 U.S. at 464 (referencing the discussion of the political protections of federalism discussed in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 550-554, 556 (1985)).
Clear statement rules are particularly appealing to textualists, because unlike most canons of statutory interpretation, which try to resolve acknowledged statutory ambiguities, clear statement rules convert ambiguity into certainty. In effect, they allow courts to find unambiguous meaning in seemingly ambiguous statutes, by specifying a determinate rule of decision once ambiguity is acknowledged. Bernard W. Bell, Using Statutory Interpretation To Improve The Legislative Process: Can It Be Done In The Post-Chevron Era?, 13 J.L. & Pol. 105, 133-138 (1997). Indeed, such clear statement rules convert Chevron Step II cases into Chevron Step I cases, thus allowing courts to more readily disregard authoritative administrative interpretations that threaten the values encoded in “clear statement” rules. Id. at 135-137.
Ironically, Gregory v. Ashcroft itself involved the ADEA. But the case is clearly distinguishable from Guido. Gregory v. Ashcroft involved the ADEA’s applicability to state statutes prescribing a mandatory retirement age for judges. It required the Court to construe the exclusions from the ADEA’s definition of “employee.” Congress defined the term to exclude “any person elected to public office . . . , or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.” 29 U.S.C. § 630(f). The statutory text actually seems clear — the best argument Missouri could manage was, that the judges were “appointees on the policymaking level,” was certainly a stretch. Nevertheless, the Court presumed, absent a clearer expression of congressional intent, that appointed judges fell within this exemption, given that the usual federal-state balance allowed states to determine the qualifications for their own officials. Gregory v. Ashcroft, 501 U.S. at 460, 470. Indeed, the Court noted the critical nature of a government’s ability to specify the qualifications for holding public offices. Id. at 460, 468.
The application of the numerosity requirement to cover employees of fire districts employing fewer than twenty people does not raise the significant federalism concerns at issue in Gregory v. Ashcroft. The numerosity requirement is not focused on generally-applicable qualifications for any office, much less offices that play a central role in the polity. And any such federalism concerns implicated by the numerosity requirement are best addressed in interpreting the ADEA’s definition of “employee.” There is no federalism-based reason why the federal government should encourage states to create very small subdivisions.
And unlike Gregory v. Ashcroft, Guido does not involve any publicly announced policy regarding age limitations on public employment. Rather it involves an allegation that a public entity used a pretext in discharging the two firefighters to avoid acknowledging the real motivation for the personnel actions, the firefighters’ age. Federal invalidation of openly-acknowledged policies at odds with anti-discrimination or other employment laws might raise federalism concerns. They might infringe upon a state’s ability to set the generally-applicable qualifications for its most important officials. They may compromise a state’s ability to forthrightly determine whether its officials are performing their jobs competently and appropriately — there has been a trend toward making public employees “at will” employees lacking substantial civil service protection to enhance managerial flexibility. Jungin Kim & J. Edward Kellough, At-Will Employment in the States: Examining the Perceptions of Agency Personnel Directors, 34 Rev. of Pub. Personnel Adm. 2018, 2018-23 (2014)(chronicling state efforts to give managers more flexibility in discharging public employees); R. Paul Battaglio, Jr., Public Service Reform and Motivation: Evidence From an Employment At-Will Environment, 30 Rev. of Pub. Personnel Adm. 341, 341-45 (2010)(same). Federal mandates could also undermine “the States’ ability to use their employment relationship with their citizens as a tool for pursuing social and economic policies beyond their immediate managerial goals,” see EEOC v. Wyoming, 460 U.S. 226 (1983) (discussing National League of Cities v. Usery, 426 U.S. 833, 848 (1976)). But individual arguably-pretextual decisions to discharge public employees on the basis of age (or some other prohibited characteristic) do not pose the same level of danger to state and local sovereignty.
If the Gregory/BFP rule applies, any acknowledgement that the ADEA’s numerosity provision is ambiguous has significant consequences — that very ambiguity, in light of the clear statement canon, virtually compels the conclusion that the numerosity element applies. Of course, the Seventh Circuit rendered its decision long before Gregory v. Ashcroft and BFP v. Resolution Trust Corp. clearly announced the applicable “plain statement” canon. None of the decisions following Kelly appear to have discussed such plain statement rules, neither did the Ninth Circuit do so in its ruling. The EEOC’s influential amicus brief in Guido also failed to discuss the “plain statement” rule.
But what of the legislative history? Might it be sufficiently decisive to overcome the plain statement presumption, at least for jurists willing to consult such materials? The EEOC provides a summary of the ADEA’s legislative history in the amicus brief the agency filed in Guido, Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiffs-Appellants and Reversal, Guido v. Mount Lemmon Fire District, 859 F.3d 1168 (9th Cir. 2017), accessible at, 2015 WL 3442450. Senator Lloyd Bentsen proposed expansion of the ADEA to government entities and smaller employers in 1972. The amendments Senator Bentsen sought were finally enacted as part of a bill that made a number of changes to the Fair Labor Standards Act of 1938 (FLSA). Fair Labor Standards Amendments of 1974, Pub.L. 93–259, §28(A)(1), 88 Stat. 55 (1974). But given that “the breadth and significance of the amendments to the FLSA overshadowed the ADEA amendment,” little of the legislative record is focused on the amendments to the ADEA. EECO Br. At 21 (quoting EEOC v. Elrod, 674 F.2d 601, 605 (7th Cir. 1982)). It is perhaps noteworthy that the FSLA contains no numerosity requirement for public or private employers, given that the amendment to the ADEA was described as a “logical extension of the Committee’s decision to extend FLSA coverage to Federal, state and local governmental employees.” H.R. Rep. No. 93-913, 93d Cong., 2d. Sess. 40 (1974), reprinted in, 1974 U.S.C.C.A.N. 2811, 2812; S. Rep. No. 93-690, 93d Cong., 2d. Sess. at 55 (1974).
The legislative history is somewhat contradictory. It suggests that public employers were to be “model employers,” EEOC Br. at 18 (quoting Sen. Bentsen a sponsor of the ADEA amendments during discussion of a prior version of the bill). The “model employer” conception supports the argument that a numerosity requirement should not apply. At the same time the legislative history includes statements that the amendment “‘insures that Government employees will be subject to the same protections against arbitrary employment [discrimination] based on age as are employees in the private sector.’ ” EEOC Br. at 22 (referencing 120 Cong. Rec. 8768 (1974)). That statement suggests that Congress intended to apply the same standards applicable to private employers, including the numerosity requirement, to public ones.
In short, I suspect that the Justices will have occasion to debate the applicability of the Gregory/BFP clear statement rule. I also suspect that the apparent clarity of the language and the seeming unexplained failure to extend the numerosity requirement to public employers will pull the Justices in different directions, even given the possible applicability of the clear-statement-rule-based interpretive presumption.
My next post will take a different perspective, discussing whether the numerosity requirement should apply to public entities that employ twenty or few people.
This entry was tagged Employment Discrimination, Federalism, statutory interpretation, Supreme Court.


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FindACase | Johnson v. Instant Auto Credit Corp.
Johnson v. Instant Auto Credit Corp.
This Court has consolidated two related actions filed by plaintiff Francois Johnson: Johnson v. Instant Auto Credit Corp., No. 3:17-cv-00115 (Johnson I) and Johnson v. Abernathy Motor Co., No. 3:17-cv-00127 (Johnson II). The Court has consolidated both actions into Johnson I.
Presently before the Court is a motion to dismiss filed by defendant Carl Oliver (Johnson II, Dkt. No. 9). Separate defendant Mr. Oliver moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiff Francois Johnson's complaint against him for failure to state claims upon which relief may be granted. Mr. Johnson, proceeding pro se, has timely opposed Mr. Oliver's motion (Johnson II, Dkt. No. 14). The Court grants Mr. Oliver's motion to dismiss (Johnson II, Dkt. No. 9). Furthermore, the Court sua sponte dismisses Mr. Johnson's claims against Instant Auto. Unless Mr. Johnson seeks leave of the Court to amend his complaint within 21 days from the entry of this Order to assert a claim over which this Court has federal jurisdiction, the Court is inclined to decline to exercise supplemental jurisdiction over any surviving state law claims Mr. Johnson may allege in his complaint.
The following facts are taken from Mr. Johnson's complaints filed in this action, unless otherwise noted (Johnson I, Dkt. No. 2; Johnson II, Dkt. No. 2). The Court treats Mr. Johnson's allegations as true for the purposes of this Order.
Mr. Johnson purchased a 2007 Chevrolet Suburban (hereinafter, the “Vehicle”) from Abernathy Motor Company (“Abernathy”) on May 6, 2015 (Johnson II, Dkt. No. 2-2, at 1). Mr. Johnson entered into a Retail Installment Contract (the “Contract”) with Abernathy for the purchase of the Vehicle (Johnson II, Dkt. No. 2, ¶ 2). Abernathy's rights under the Contract were assigned to Instant Auto Credit Corporation (“Instant Auto”) (Johnson II, Dkt. No. 2-2, at 2).
Mr. Johnson has brought two lawsuits in relation to this transaction. On May 17, 2017, he brought claims against Instant Auto under the Truth in Lending Act (“TILA”), 82 Stat. 146, 15 U.S.C. § 1601 et seq., the Gramm-Leach-Bliley Act (“GLBA”), 113 Stat. 1436, 15 U.S.C. § 6801 et seq., the Omnibus Appropriations Act of 2009, as amended by Section 1097 of the Dodd-Frank Act (“Dodd-Frank Act”), 123 Stat. 524, 12 U.S.C. § 5481 et seq., and the Federal Trade Commission Act (“FTCA”), 38 Stat. 717, 15 U.S.C. § 45. See Johnson v. Instant Auto Credit Corp., No. 3:17-cv-00115 (Johnson I, Dkt. No. 2). The next day, on May 18, 2017, Mr. Johnson brought the same claims against Mr. Oliver and Abernathy (Johnson II, Dkt. No. 2). The claims against Mr. Oliver and Abernathy under the Omnibus Act and the FTC Act have already been dismissed (Johnson II, Dkt. No. 5). Thus, all of Mr. Johnson's original claims against Instant Auto remain pending.
Mr. Johnson's only remaining claims against Mr. Oliver and Abernathy are based upon TILA and GLBA. In general, Mr. Johnson contends that the defendants violated TILA because defendants did not provide him with TILA disclosure forms prior to the execution of the Contract (Johnson II, Dkt. No 2, ¶ 15). Mr. Johnson also alleges that defendants violated the GLBA by not providing him with a “Privacy Notice” (Johnson II, Dkt. No. 2, ¶ 1). Furthermore, Mr. Johnson alleges that defendants violated the GLBA by sharing his “nonpublic information” with the assignee of the Contract, Instant Auto (Johnson II, Dkt. No. 2, ¶ 9). Mr. Oliver filed the pending motion to dismiss the remaining claims against him on August 18, 2017 (Johnson II, Dkt. No. 9).
On March 23, 2018, the Court ordered the consolidation of the present case and Johnson I. As Mr. Johnson was granted leave to proceed in forma pauperis in this case as well as in Johnson I, the Court is required to dismiss the claims made against Abernathy and Instant Auto if they (1) are frivolous or malicious, (2) fail to state a claim upon which relief may be granted, or (3) seek monetary relief from an individual immune to such relief. 28 U.S.C. § 1915(e)(2)(B). Therefore, the Court is required to screen Mr. Johnson's remaining claims against Abernathy and Instant Auto.
Mr. Oliver moves to dismiss the claims against him alleging that Mr. Johnson's claims run afoul of Rule 12(b)(6). Per 28 U.S.C. § 1915(e)(2)(B), the Court must also screen Mr. Johnson's remaining claims against Abernathy and Instant Auto. To survive a motion to dismiss under Rule 12(b)(6) or screening under 28 U.S.C. § 1915(e)(2)(B), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “While a complaint attacked by a [Federal] Rule [of Civil Procedure] 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citations omitted). “[T]he complaint must contain facts which state a claim as a matter of law and must not be conclusory.” Briehl v. General Motors Corp., 172 F.3d 623, 627 (8th Cir. 1999). “When ruling on a motion to dismiss, the district court must accept the allegations contained in the complaint as true and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).
Mr. Oliver moves to dismiss all of the federal claims Mr. Johnson has made against him. Mr. Johnson's causes of action under the Omnibus Act and the FTC Act have already been dismissed. The Court agrees with Mr. Oliver that Mr. Johnson's remaining federal law claims, as currently pled, are insufficient to state a claim for relief. Furthermore, screening Mr. Johnson's claims against Abernathy and Instant Auto, the Court finds that the claims against Abernathy and Instant Auto are insufficiently pled to state claims for relief.


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A determination as to whether a patent is eligible for extension may be made by the Director solely on the basis of the representations contained in the application for extension filed in compliance with § 1.740 or § 1.790. This determination may be delegated to appropriate Patent and Trademark Office officials and may be made at any time before the certificate of extension is issued. The Director or other appropriate officials may require from applicant further information or make such independent inquiries as desired before a final determination is made on whether a patent is eligible for extension. In an application for extension filed in compliance with § 1.740, a notice will be mailed to applicant containing the determination as to the eligibility of the patent for extension and the period of time of the extension, if any. This notice shall constitute the final determination as to the eligibility and any period of extension of the patent. A single request for reconsideration of a final determination may be made if filed by the applicant within such time as may be set in the notice of final determination or, if no time is set, within one month from the date of the final determination. The time periods set forth herein are subject to the provisions of § 1.136.
The determination as to whether a patent is eligible for an extension will normally be made solely from the representations contained in the application for patent term extension. However, further information may be required or inquiry made of applicant before a final determination is made on whether a patent is eligible for extension. In circumstances where further information is required by the Office, the applicant will be given a time period within which to respond. The failure to provide a response within the time period provided may result in a final determination adverse to the granting of an extension of patent term unless the response period is extended. An extension of time to respond may be requested under the provisions of 37 CFR 1.136. Under appropriate circumstances, e.g., if time is of the essence for a particular reason, a request for information may contain a statement that the provisions of 37 CFR 1.136(a) are not available. The intentional failure to provide the information requested may result in an adverse final determination.
A final determination may be made at any time after an application is filed. A single request for reconsideration of a final determination may be filed within one month or within such other time period set in the final determination. A notice will be mailed to applicant containing the determination as to eligibility of the patent for extension and the period of time of the extension of the term, if any. This notice shall constitute the final determination as to eligibility and any period of extension of the patent term. If no request for reconsideration is filed within the time period set in the notice of final determination, the certificate of patent term extension will be issued in due course. See MPEP § 2758.
37 CFR 1.760 Interim extension of patent term under 35 U.S.C. 156(e)(2).
An applicant who has filed a formal application for extension in compliance with § 1.740 may request one or more interim extensions for periods of up to one year each pending a final determination on the application pursuant to § 1.750. Any such request should be filed at least three months prior to the expiration date of the patent. The Director may issue interim extensions, without a request by the applicant, for periods of up to one year each until a final determination is made. The patent owner or agent will be notified when an interim extension is granted and notice of the extension will be published in the Official Gazette of the United States Patent and Trademark Office. The notice will be recorded in the official file of the patent and will be considered as part of the original patent. In no event will the interim extensions granted under this section be longer than the maximum period for extension to which the applicant would be eligible.
If the original term of the patent for which extension is sought will expire before a final decision to issue a certificate of extension can be made, and a determination is made that the patent is eligible for extension, 35 U.S.C. 156 provides that the Director may issue an interim extension of the patent term for up to one year pending a final decision on the application for extension. Should additional time be necessary, additional interim extensions of up to one year may be granted by the Director. The length of any interim extension is discretionary with the Director so long as it is for one year or less. Its length should be set to provide time for completion of any outstanding requirements. See In re Reckitt & Colman Products Ltd., 230 USPQ 369, 372 (Comm’r Pat. & Tm. 1986). The Director may issue an interim extension under 35 U.S.C. 156(e)(2) with or without a request from the applicant.
Where a determination is made that the patent is not eligible for patent term extension, an interim extension of the patent term is not warranted under 35 U.S.C. 156(e)(2). See In re Alcon Laboratories Inc., 13 USPQ2d 1115, 1123 (Comm’r. Pat.& Tm. 1989).
Where an interim extension has been granted and it is subsequently determined that the patent is not eligible for patent term extension, the interim extension may be vacated ab initio as ineligible under 35 U.S.C. 156(e)(2). See In re Reckitt, 230 USPQ at 370.
While 37 CFR 1.760 provides that a request for an interim extension by the applicant “should” be filed three months prior to the expiration of the patent, this time frame is not mandatory. Any request filed within a shorter period of time will be considered, upon a proper showing, where it is not possible to make an earlier request. However, for an interim extension to be granted, the application for extension, in compliance with 37 CFR 1.741, must have been filed prior to the expiration date of the patent. In no event will an interim extension be granted for a period of patent term extension longer than the period of extension to which the patent would be eligible.
A notice of each interim extension granted will be issued to the applicant for patent term extension. The notice will be recorded in the official file of the patent and will be considered as part of the original patent.
37 CFR 1.790 Interim extension of patent term under 35 U.S.C. 156(d)(5).
(a) An owner of record of a patent or its agent who reasonably expects that the applicable regulatory review period described in paragraph (1)(B)(ii), (2)(B)(ii), (3)(B)(ii), (4)(B)(ii), or (5)(B)(ii) of subsection (g) that began for a product that is the subject of such patent may extend beyond the expiration of the patent term in effect may submit one or more applications for interim extensions for periods of up to one year each. The initial application for interim extension must be filed during the period beginning 6 months and ending 15 days before the patent term is due to expire. Each subsequent application for interim extension must be filed during the period beginning 60 days before and ending 30 days before the expiration of the preceding interim extension. In no event will the interim extensions granted under this section be longer than the maximum period of extension to which the applicant would be entitled under 35 U.S.C. 156(c).
(b) A complete application for interim extension under this section shall include all of the information required for a formal application under § 1.740 and a complete application under § 1.741. Sections (a)(1), (a)(2), (a)(4), and (a)(6) - (a)(17) of § 1.740 and § 1.741 shall be read in the context of a product currently undergoing regulatory review. Sections (a)(3) and (a)(5) of § 1.740 are not applicable to an application for interim extension under this section.
(c) The content of each subsequent interim extension application may be limited to a request for a subsequent interim extension along with a statement that the regulatory review period has not been completed along with any materials or information required under §§ 1.740 and 1.741 that are not present in the preceding interim extension application.
37 CFR 1.791 Termination of interim extension granted prior to regulatory approval of a product for commercial marketing or use.
Any interim extension granted under 35 U.S.C. 156(d)(5) terminates at the end of the 60-day period beginning on the date on which the product involved receives permission for commercial marketing or use. If within that 60-day period the patent owner or its agent files an application for extension under §§ 1.740 and 1.741 including any additional information required under 35 U.S.C. 156(d)(1) not contained in the application for interim extension, the patent shall be further extended in accordance with the provisions of 35 U.S.C. 156.
If a patent that claims a product which is undergoing the approval phase of regulatory review as defined by 35 U.S.C. 156(g)(1)(B)(ii), (2)(B)(ii), (3)(B)(ii), (4)(B)(ii), and (5)(B)(ii) is expected to expire before approval is granted, interim patent term extension is available under 35 U.S.C. 156(d)(5). The application for patent term extension that must be submitted is generally the same as would be filed had the product been approved, except that the approval date is not required to be set forth. Once the product is approved, the application must be converted to an application for patent term extension under 35 U.S.C. 156(d)(1) to obtain patent term extension under that subsection.
On __, patent owner __, filed an application under 35 U.S.C. 156(d)(5) for interim extension of the term of U.S. Patent No. __. The patent claims the active ingredient __ in the human drug product “___.” The application indicates that the product is currently undergoing a regulatory review before the Food and Drug Administration for permission to market or use the product commercially. The original term of the patent expired on ___ On ___, the patent was granted an first interim extension under 35 U.S.C. 156(d)(5) for a period of one year.
Review of the application indicates that except for receipt of permission to market or use the product commercially, the subject patent would be eligible for an extension of the patent term under 35 U.S.C. 156. Since it is apparent that the regulatory review period may extend beyond the date of expiration of the patent, as extended by the first interim extension, a second interim extension of the patent term under 35 U.S.C. 156(d)(5) is appropriate.
An interim extension under 35 U.S.C. 156(d)(5) of the term of U.S. Patent No. __ is granted for a period of one year from the extended expiration date of the patent.
As seen from the example given, a series of one-year interim extensions may be granted if requested in a timely manner (in the window of time between thirty and sixty days before the extended expiration date).
An interim extension granted under 35 U.S.C. 156(d)(5) terminates sixty days after permission for commercial marketing or use of the product is granted, except, if within the sixty day period any additional information needed for an application for patent term extension under 35 U.S.C. 156(d)(1) is submitted, the patent may be further extended. 35 U.S.C. 156(d)(5)(E).


The Comptroller of the Currency has now fined Chase Bank $30 million dollars for robosigning and other less than kosher debt collection practices that have been known for years. See July 8, 2015 Press release here. Consent Order for the Assessment of a Civil Money Penalty here.
But meanwhile our local courts of appeals have gone out of their way to accommodate and legitimize wrongful collection conduct, and other intermediate courts around Texas (but not all) have followed their lead. In light to the regulatory actions involving robosigning, including the most recent consent order against a major bank, the time seems ripe to revisit Simien v. Unifund CCR Partners, 321 S.W.3d 235 (Tex. App.-Houston [1st Dist.] 2010, no pet.)(overruling objections to admissiblity of credit card bank records sought to be admitted through an employee testifying for debt buyer).
This is how the issue was handled in Texas when assignees of credit card debt used dubious affidavits and documentation in credit card debt collection cases: Rather than holding debt collection plaintiffs and their attorneys to the same evidentiary standards that others have to live by, the Houston appellate courts fashioned special interest jurisprudence to accommodate debt collection firms' interest in efficient and fast-paced mass-litigation and procurement of judgments.
The First Court of Appeals (later followed by some others) simply changed the case law governing admissibility of business records to accommodate the debt collectors, and provided them with a remedy for their problems in proving their debt claims with poor documentation in the trial courts. How so? By creating new controlling precedent for admissibility of original creditor records through otherwise unqualified witnesses on the premise that the records must be trustworthy because the bank that sold the account would be violating the law -- and face penalties -- if it had not acted properly in running its business.
The debt buyer was therefore justified in relying on whatever documentation they had received upon purchase of portfolios of charged-off credit card accounts because those records were deemed inherently trustworthy. That exempted them from the need to actually know anything about the operations of the original creditor to put them in a position to vouch for the reliability of those records.
In other words, the Houston Court of Appeals blessed the practice of robosigning by employees of companies that bought charged-off accounts from banks such as Chase, Citibank, Capital One, GEMB, HSBC, and others. They substituted an evidentiary presumption of trustworthiness, thereby short-circuiting the safeguards for quality control that otherwise apply to use of documentary evidence in the litigation process, including authentication and hearsay.
Essentially, the justices on the court of appeals took the position that a major national bank could not possibly have done anything wrong, and that the records that the debtbuying company suing on the debt claims to have received must necessarily be trustworthy because they are business records created by a national bank. After all, if the bank were to engage in shady practices, they would face consequences.
Here is an example of a Houston appellate justice's reasoning used to affirm a judgment on a credit account sold by Chase Bank USA, N.A., citing her former colleague Elsa Alcala, who now sits on the CCA and took the lead in fashioning the precedent to lower the bar for admissibility of credit card debt records on the premise that a major bank like Citibank can do no wrong. See Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240-43 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (establishing alternative predicate for admissibility of business records).
Chase's failure to keep accurate records could result in criminal or civil penalties. See Tex. Fin. Code Ann. § 392.304(a)(8) (prohibiting misrepresentations of amount of consumer debt); id. § 392.402 (providing for criminal penalties for violations of chapter 392 of Texas Finance Code); see also Fair Debt Collection Practices Act, 15 U.S.C.A. § 1692e(2)(a) (prohibiting misrepresentation of amount of debt); id. § 1692l (providing for administrative enforcement of Administrative Debt Collection Practices Act). These circumstances otherwise indicate the trustworthiness of the Chase Bank documents. See Simien, 321 S.W.3d at 243-44. Accordingly, because the business-records affidavit at issue here meets the criteria for admission as business records under Texas Rule of Evidence 803(6), the trial court did not abuse its discretion in admitting these records. See id. We overrule Ainsworth's first issue.
The OCC has now imposed penalties to the tune of $30 million on Chase Bank for practices that the Houston Court of Appeals justices simply presumed would not occur because Chase and its like would be deterred by the possibility of facing an enforcement action by regulators. And the OCC is not the only regulator whose attention Chase attracted with its dubious practices. The CFPB and a bevy of state attorneys general also took action against the bank over improper conduct.
But misconduct and illegal conduct by major financial institutions is hardly man-bites-dog news. Nor was that so when Siemien v Unifund was decided in 2009 (with a superseding opinion in 2010).
Not to mention that the FDIC had shut down and liquidated Washington Mutual Bank years ago because of unsound practices (and resulting lack of trustworthiness). Chase Bank acquired WaMu's credit card portfolio (and other assets) via the FDIC acting as receiver, which also included accounts originated by Providian Bank that had been assumed by WaMu before its demise by merger.
Yet the Houston Courts of Appeals found such records presumptively trustworthy, and instructed (through the precedent set in Simien and its progeny) the lower courts to overrule evidentiary objections made by consumers lucky enough to find a competent attorney to make evidentiary objections to offers of dubious records and shoddy affidavits by robosigners in credit card and other consumer debt collection cases.
The Texas Supreme Court was not asked to weigh in at the time; nor is it likely that it would have ruled differently. But the latest regulatory developments have again shown that the premise underlying Simien was wrong. It was wrong all along. -- An exercise not in legislating from the bench, but of handing down special-interest jurisprudence to ease the burdens of proof for a particular category of litigants at the expense of others. And that amounts to policymaking too: Policymaking by other means. On the back-end of the law.
Ainsworth challenged the admission of the business-records affidavit and supporting documentation on numerous grounds, including hearsay and that the supporting documents were unreliable and not trustworthy. The admission and exclusion of evidence are within the sound discretion of the trial court. Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 609 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). The complaining party must show that the trial court erred and that such error probably resulted in an improper judgment, which usually requires a showing that the judgment turned on the challenged evidence. Id.; see also Tex. R. App. P. 44.1(a)(1) (requiring that before a judgment can be reversed on appeal it must be determined that the error probably caused rendition of an improper judgment or prevented the appellant from properly presenting the case on appeal).
A proponent of hearsay evidence bears the burden of showing that testimony fits within an exception to the general rule prohibiting admission of the hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n. 5 (Tex. 2004); see also Tex. R. Evid. 802. Rule of Evidence 803(6) provides an exception to the hearsay rule for business records if the offering party shows (1) the records were made and kept in the regular course of business; (2) the business kept the records as part of its regular practice; (3) the records were made at or near the time of the event they contain; and (4) the person making the records or submitting the information had personal knowledge of the events being recorded. See Tex. R. Evid. 803(6). Business records may also be "admissible in evidence in any court in this state upon the affidavit of [a] person" who can satisfy the requirements of Rule 803(6). Tex. R. Evid. 902(10)(a).
Finally, third-party documents can become the business records of an organization and, consequently, admissible under rule 803(6), if the records are (1) incorporated and kept in the course of the testifying witness's business; (2) the business typically relies upon the accuracy of the contents of the documents; and (3) the circumstances otherwise indicate the trustworthiness of the documents. Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240-41 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (citing Bell v. State, 176 S.W.3d 90, 92 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd)).
The business-records affidavit, described above, meets these criteria. Hwang stated that she is the custodian of records for CACH and that it is CACH's "regular business practice to obtain, integrate and rely upon documents prepared by the original creditor of the account at issue." She further averred that CACH relies on the accuracy of the documents in its day-to-day business activities and that the records are made and maintained by individuals who have a duty to keep the record accurately at or near the time of the event that they record. Finally, one of the documents attached to the business-records affidavit is the "affidavit of sale," which is notarized. Such a notarized document is self-authenticating under the Texas Rules of Evidence. See Tex. R. Evid. 902(8).
In this document, described above, an authorized agent of Chase Bank, N.A., stated that Chase had acquired Ainsworth's account from Washington Mutual Bank, sold it to CACH in December 2008, and that the amount due on the account at the time of the sale was $4,567.07.
Chase's failure to keep accurate records could result in criminal or civil penalties. See Tex. Fin. Code Ann. § 392.304(a)(8) (prohibiting misrepresentations of amount of consumer debt); id. § 392.402 (providing for criminal penalties for violations of chapter 392 of Texas Finance Code); see also Fair Debt Collection Practices Act, 15 U.S.C.A. § 1692e(2)(a) (prohibiting misrepresentation of amount of debt); id. § 1692l (providing for administrative enforcement of Administrative Debt Collection Practices Act).
These circumstances otherwise indicate the trustworthiness of the Chase Bank documents. See Simien, 321 S.W.3d at 243-44. Accordingly, because the business-records affidavit at issue here meets the criteria for admission as business records under Texas Rule of Evidence 803(6), the trial court did not abuse its discretion in admitting these records. See id.
We overrule Ainsworth's first issue.


Over the last five years, the Employment Lawyers at LaBar & Adams, P.A. cannot file a case regarding discrimination, retaliation, hostile work environment, harassment, wage and hour, overtime, minimum wage, etc. without being confronted with an Employers' attempt at extinguishing our Client's constitutionally protected right of Trial by Jury. Employers should not be able to trample upon such Fundamental Rights.
Amend VII, U.S. Const.(emphasis added).
The right to a trial by jury has been recognized as "a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment." Jacob v. City of New York, 315 U.S. 752, 752 (1942). The right to a trial by jury is a sacred and fundamental right in our society. In fact the Supreme Court has called it "[a] right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts." Id. Moreover, the Supreme Court has stated that "[t]he trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy." Chauffeurs, Teamsters and Helpers, Local, No. 391 v. Terry, 494 U.S. 558, 581 (1990) (quoting Parsons v. Bedford, Breedlove and Robeson, 28 U.S. (3 Pet.) 433, 7 L.Ed. 732 (1830)). Florida likewise recognizes the sanctity of the right to a trial by jury.
The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.
Art. I, § 22, Fla. Const..
Florida courts have also consistently highlighted the importance of the right to a trial by jury. As such, all questions regarding whether someone has waived their right to a jury trial should be answered with- they have not. In fact, the Florida Supreme Court has stated "[q]uestions as to the right to a jury trial should be resolved, if at all possible, in favor of the party seeking the jury trial, for that right is fundamentally guaranteed by the U.S. and Florida Constitutions." Hollywood, Inc. v. City of Hollywood, 321 So.2d 65, 71 (Fla.1975).
Despite the sanctity of the right of trial by jury, many Employers have been attempting to extinguish the right in cases regarding discrimination, retaliation, hostile work environment, harassment, wage and hour, overtime, minimum wage, etc. These are done through purported "Jury Waiver Agreements." The Courts should not allow such actions.
Because trial by jury is a fundamental guaranty of the rights and liberties of the people; every reasonable presumption should be indulged against any purported waiver. See Hodges v. Easton, 106 U.S. 408 (1883). In light of the "most exacting scrutiny," FGDI, Inc. v. Bombardier Capital Rail Inc., 383 F.Supp.2d 1350, 1352 (M.D. Fla. 2005), necessary to overcome this presumption, it becomes clear that Courts should rarely if ever find that a purported waiver is sufficient to overcome the presumptive right to trial by jury.
It has been acknowledged that under certain circumstances the right to trial by jury can be expressly waived. "[T]he right to trial by jury may be waived, and the waiver is enforceable so long as it is made ‘knowingly and voluntarily.' " Great Earth Int'l Franchising Corp. v. Milks Dev., 311 F.Supp.2d 419, 437 (S.D.N.Y.2004). To determine whether the waiver was obtained "knowingly and voluntarily" courts look at several factors including: "the conspicuousness of the waiver provision, the parties' relative bargaining power, the sophistication of the party challenging the waiver, and whether the terms of the contract were negotiable." Bakrac, Inc. v. Villager Franchise Systems, Inc., 164 Fed. Appx. 820, 824 (11th Cir. 2006). In evaluating jury waiver clauses and whether the waiver is "knowingly and voluntarily," Courts must apply the "most exacting scrutiny" standard. FGDI, Inc. v. Bombardier Capital Rail Inc., 383 F.Supp.2d 1350, 1352 (M.D. Fla. 2005)(quoting City of Morgantown, W. Va. V. Royal Ins. Co., 337 U.S. 254, 258 (1943). As such, waiver of the Constitutional Right to a jury trial should rarely be found.
Employees' Constitutional Rights are under attack in cases regarding discrimination, retaliation, hostile work environment, harassment, wage and hour, overtime, minimum wage, etc. If you have been a victim of discrimination, retaliation, harassment, a hostile work environment, wage and hour, overtime, minimum wage, etc., please call the employment attorneys at LaBar Adams in Orlando, FL at 1-866-680-4LAW or fill out our online form located at the top of the page and we will contact you shortly.


text:
The set of supported locales varies between different implementations of the Java 2 platform as well as between different areas of functionality.
Sun's Java 2 Software Development Kit, Standard Edition, v. 1.3.1 and the international version of the Java 2 Runtime Environment, Standard Edition, v. 1.3.1 support all locales shown below. The US-only version of the Java 2 Runtime Environment, Standard Edition, v. 1.3.1 supports only the English/United States locale.
Locales whose IDs end with "_EURO" are variant locales that use the Euro currency symbol.
On Windows 95, 98, ME, and NT 4.0, when running on a Windows system localized for a language using that writing system.
On Windows 2000, when running on a Windows system with both the user locale and the system locale set to a language using that writing system.
Sun's Java 2 Software Development Kit, Standard Edition, v. 1.3.1 and the international version of the Java 2 Runtime Environment, Standard Edition, v. 1.3.1 support all writing systems shown below. The US-only version of the Java 2 Runtime Environment, Standard Edition, v. 1.3.1 supports only the Western European subset of the Latin writing system. Peered AWT components are only supported for a subset of the writing systems - see the last column.
(1) eucJP on Solaris supports the JIS character sets X 0201, X 0208, and X 0212; eucJP on Linux only X 0201 and X 0208.
Support for text input consists of two parts: interpretation of keyboard layouts, and text composition using input methods. For interpretation of keyboard layouts, the Java 2 platform relies entirely on the host operating system. For text composition using input methods, Java 2 platform supports native input methods using the host operating system's input method manager as well as input methods developed in the Java programming language.
On Windows 95, 98, ME, and NT, the J2RE supports use of any keyboard layout or IMM-based input method that can be installed into a particular localized version of the host operating system.
On Windows 2000, the J2RE supports use of any keyboard layout using a non-Unicode code page and of any IMM-based input method.
Global IME is not supported.
The J2RE supports use of any keyboard layout or input method that can be used with a particular Solaris locale.
Using the virtual font names Serif, SansSerif, Dialog, DialogInput, Monospaced.
Using the name of a real font.
When using virtual font names, text in at least the writing system of the host locale and the Western European subset of the Latin writing system is supported.
When using real font names, we need to distinguish between simple and complex writing systems. Simple writing systems have a one-to-one mapping from characters to glyphs, and glyphs are placed on the baseline continuously from left to right. Complex writing systems may use different glyphs for the same character based on context, may for ligatures, may be written from right to left, and may reorder glyphs during line layout, or may have other rules for placing glyphs (in particular for combining marks).
When using virtual font names, text in the writing system of the host operating system's locale is supported.
When using real font names, text in the writing system of the host operating system's locale is supported to the extent that the font provides glyphs for this writing system.
Text rendering using the 2D printing API works to the same extent as text rendering on the screen. Text rendering using the AWT printing API on Windows works to the same extent as text rendering on the screen. Text rendering using the AWT printing API on Solaris and Linux works only for the Western European subset of the Latin writing system and for Japanese.
On Windows 95, 98, and ME, text in the writing system of the host operating system's localization can be transferred between applications.
On Windows NT and 2000, arbitrary Unicode text can be transferred between applications.
Applications that need to transfer arbitrary Unicode text independent of the host operating system, can do so using serialization: Create a Transferable which supports only one flavor: DataFlavor.stringFlavor. This flavor represents the serialized representation of a String. Make sure that the target supports stringFlavor as well. When the transfer occurs, the AWT will serialize out the String on one end and deserialize on the other. This is much slower than a native platform text transfer, but it will succeed where native transfers may not.

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


1. The complaint did not state facts sufficient to constitute a cause of action. It is well settled that in actions of this character the negligence of a railroad company is the basis of its liability. The mere injury or killing is not sufficient to sustain recovery. Wardsworth v. Railway Co., 18 Colo. 611, 33 Pac. 515, 23 L.R.A. 812; Railroad Co. v. Robinson, 6 Colo.App. 432, 40 Pac. 840; Same v. Wheatley, 7 Colo.App. 284, 43 Pac. 450. This being true, it was necessary that plaintiff should charge negligence in his complaint. It being the most essential element upon which liability and recovery were both dependent, it was absolutely obligatory upon him to allege as well as to prove it. This he did not do. The complaint does not contain a word, nor a line, from which such an averment can even be inferred. The answer, too, in no respect aids the complaint or supplies this defect. It denies in toto both the striking and the killing. It is possible that counsel who drew this complaint did so upon the assumption that the railroad stock-killing act of 1893 relieved him of the necessity of making this specific allegation. Laws 1893, p. 406. In this he was mistaken. That act has no bearing upon, and does not in the slightest respect change, the usual rule with reference to what a complaint shall contain. It simply attempts to aid a plaintiff in the matter of proof. It provides, in effect, that, the killing or injury of an animal by a railroad company or corporation being shown by competent *144 evidence, this should be prima facie proof of the negligence of the company or corporation, and, if this prima facie showing is not overcome by affirmative proof on the part of defendant, the plaintiff shall recover. The wording of this statute is convincing evidence, if any more were required, that it was still intended by the legislature that negligence should be the essential element and basis of liability and recovery.
2. In one important respect the evidence was wholly insufficient to sustain the verdict and judgment. In fact, there was no evidence at all given or offered. A material issue raised by the pleadings was whether the defendant operated the railroad upon which the injury is said to have happened. This was so charged in the complaint, and was specifically denied in the answer. Before plaintiff could recover, it was incumbent upon him to make some proof of some character tending to sustain this allegation. We do not mean to intimate that plaintiff was required to make positive record proof of this fact,--a thing which it would probably be difficult, if not impossible, for him to do; the records of whatever company was operating the road being, possibly, wholly inaccessible to him. He could without doubt, however, have offered some evidence as to shipments made on the road in that county; by whom bills of lading were issued; or of statements by employes and agents actually engaged in the operation of the road, in such positions that their declarations would, under the usual rule, be admissible against their principal; or have made some other kind of proof in support of this allegation, if it was the case that the defendant did operate the road. If the defendant did not operate it, it was, of course, not liable for any injuries caused by its operation. Having denied this, it was entitled to have it shown in some manner by the plaintiff, before it could be mulcted in damages. For these reasons, we think the motion of defendant for nonsuit should have been sustained.
The defendant urges that the evidence was wholly insufficient to show that the animal was injured by any railroad *145 engine, or by the cars of any railway company or corporation. We think that the evidence upon this point was sufficient to go to the jury. It is true, it may be said that it was not positive and conclusive, but it is exceedingly rare that such can be the case with reference to proof in actions of this kind. It is seldom that a plaintiff can secure eyewitnesses to prove this fact. Most generally, no one sees it, unless it be the trainmen, who are the servants and employes of the defendant, whose names or residence, even, it would be exceedingly difficult, and generally impossible, for a plaintiff to ascertain. We are aware that the mere finding of a dead or injured animal in the vicinity of a railroad track is not sufficient, of itself, to establish that it was injured by the railroad company owning said track, or by the engine or cars operated thereon. Railroad Co. v. Bullis, 6 Colo.App. 64, 39 Pac. 897. This authority, however, does not, nor does the rule, go to the extent of holding that the killing or injury can be established only by positive and direct testimony. From the nature of the case, as we have said, it is rare that such testimony can be secured; and, if this were the true rule, the owner of the injured animal, however gross the negligence from which he suffered damage, would be in most instances remediless, either at common law or under statute. From the nature of the case, the evidence on this point must be **426 largely circumstantial. Usually there are some marks upon the ground where such an accident occurred, such as blood and the hair of the animal, or indications upon the ground showing that the animal had fallen or been thrown or lain down, all of which may be competent evidence tending to show that the injury was inflicted by the engine or cars of a railroad company.
Defendant also insists that there was no competent evidence of the value of the animal, and in this we must also disagree with counsel. We think there was sufficient evidence on this point to go to the jury. Counsel base their contention upon the ground that the witnesses on this point, who were neighbors of plaintiff, and farmers, uniformly testified, *146 when interrogated, that they did not know the market value of the animal in that vicinity, and did not know that there was any market value for such animals. It is true that the rule contended for by the plaintiff as to proof of value is the general rule, but, like all legal rules, it must be reasonably construed, and not blindly followed, in its attempted application. The witnesses who testified as to value of the mare were owners of similar animals, used them, and had for years, in their occupation as farmers; had bought them, and, in some instances, sold animals of this character; and we think that under such circumstances their opinion as to the value was competent, and of weight, and should not be rejected because there did not happen to be an established and general market value for such animals in that community, there being no person in that neighborhood engaged actively in the business of buying and selling horses, so as to establish a market value. We think these views are in accord, upon principle, with the doctrine announced by this court. Railway Co. v. Williams, 3 Colo.App. 526, 34 Pac. 731. We think them also within the rule generally followed by the later and best authorities. 2 Suth.Dam. § 654. The average witness has usually a somewhat indefinite and confused idea as to what is meant by "market value,"--as to how many sales may be necessary to constitute it,--and is apt to become still more confused under a vigorous cross-examination by the ingenious questions of able counsel. We do not wonder that they sometimes answer, as did a witness in this case when asked if he knew the value of horses in that vicinity about the time of this injury: "Thought I did until I came here to-day, but don't know that I know anything now."
Counsel for defendant vigorously assails the constitutionality of the railroad stock-killing act of 1893. It not being necessary to the determination of this appeal for us to express an opinion on this question, we decline to do so. *147 For the reasons first given, this judgment will be reversed and remanded, with leave to plaintiff to amend his complaint, if he so desires; and it will be so ordered. Reversed.