The due process hearing for the bifurcated residency issue in this case convened on April 16, 17, and 18, 2013, before Paul H. Kamoroff, Administrative Law Judge (ALJ) from the Office of Administrative Hearings (OAH), State of California.
Seth A. Schwartz, Attorney at Law, appeared on behalf of Parents on behalf of Student I and Student II (individually referred to as Student I or Student II; collectively referred to as Students). Matthew H. Storey, Attorney at Law, also appeared on behalf of Students. Mother and Father attended each day of the hearing. Students did not attend the hearing.
Jack M. Sleeth, Jr., Attorney at Law, appeared on behalf of the Coronado Unified School District (District). Richard J. Erhard, Assistant Superintendent of Student Services for the District, was present during each day of the hearing.
On February 19, 2013, Students, who are siblings, filed separate Requests for Due Process Hearing and Mediation, naming the District as the respondent. On April 5, 2013, OAH granted Students’ request to consolidate Student I and Student II’s issue pertaining to residency. On April 10, 2013, OAH granted Students’ and District’s joint request to bifurcate the residency issue and to consolidate the remaining issues. Also on April 10, 2013, OAH granted the parties’ joint request to continue the non-bifurcated issues to June 17, 18 and 19, 2013. As of the date of this Decision, the hearing for the non-bifurcated issues has not yet occurred.
At hearing, the ALJ received oral and documentary evidence regarding the residency issue. The following witnesses testified: Robert Price, Richard Erhard, Students’ mother (Mother), Students’ grandmother (Grandmother), Students’ father (Father), and Bryan Scott.
At the request of the parties, the record remained open for the submission of written closing arguments. The parties filed their closing briefs on May 3, 2013. The ALJ marked Students’ closing brief as Exhibit S-68 and District’s closing brief as Exhibit D-81. The matter was submitted on May 3, 2013.
Were Students residents of the District during all times material to these cases such that the District was responsible for providing them with special education and for implementing Students’ IEP’s?
Student I is a 17 year-old male who has been found to exhibit serious emotional deficits, including depression and suicidal ideation. In August 2012, the parties entered into a settlement agreement, whereby the District agreed to find Student I eligible for special education and agreed to fund placement for him at a residential treatment center.
Student II is Student I’s younger brother. Student II is deaf in one ear. Student II has been found eligible for special education and related services as a pupil who is deaf and hard-of-hearing.
The District asserts that Students have resided outside of the District during a period of time which is material to these cases. For this reason, the District argues it is no longer obligated to provide Students special education and related services.
Students assert they are residents of a house in Coronado, within the District’s boundaries, which their parents own but rent out due to financial difficulties. Students assert that this particular home should be considered their permanent residence because the family intends to someday return to this house. In the alternative, Students argue they are residents of a house which is owned by their grandmother, and which is also located in the District.
For the following reasons, this Decision finds that during a period of time material to these cases, Students resided outside of the District.
1. Students’ parents (Parents) are married and have legal custody of Students, who are minors. From 2005 to January 2010, Parents and Students resided in Coronado, within the District’s geographic boundaries, at a house which is owned by Parents (the A house). In January 2010, Parents chose to lease out this house due to financial difficulties. Parents have leased out the A house without interruption since January 2010.
2. Parents also own a home in the North Park area of San Diego, which they have also leased to long term tenants. Parents have utilized this house solely as an income property, Parents and Students have never resided at this property.
3. Beginning in January 2010, Parents and Students moved all of their furniture and most of their personal belongings to a house located in the Point Loma area of San Diego (the B house), which is owned by Students’ grandmother (Grandmother) and which had been vacant for several years. Father also moved his business, a small, landscape architecture firm, into a detached garage at the B house, which he converted into a home office. The B house is not within the District’s geographic boundaries, and instead lies within the boundaries of the San Diego Unified School District.
4. Also in January 2010, after moving their furniture, some personal belongings, and Father’s home-office, into the B house, Parents and Students moved themselves into a second house which is owned by Grandmother, and which is located in Coronado and within the District’s boundaries (the C house). At that time, Grandmother and mother’s step-father (Grandfather) resided exclusively at the C house. Grandmother permitted Parents and Students to temporarily reside in a single bedroom loft, located over a detached garage, at the C property.
5. In January 2011, Parents and Students moved into the B house. At that time, Mother also moved her home business, an art studio, into the B house.
6. Student I currently attends the Family Life Center, a non-profit residential treatment center and private school located in Petaluma, California. A residential treatment center (RTC) is a live-in health care facility which treats multiple conditions from drug and alcohol addictions, to emotional and physical disorders as well as mental illnesses. Parents placed Student I at the Family Life Center in November 2012.
7. Parents first placed Student I in an RTC in early February 2012, after he began exhibiting serious depression and began abusing drugs. At that time, Parents placed Student I at the In Balance Ranch Academy, an RTC located in Southern Arizona. In June 2012, Parents moved Student I from the In Balance Ranch to the Meridell Achievement Center, an RTC located in Liberty Hill, Texas. Student I has lived continuously and exclusively at RTC’s since February 2012. He has not lived with, or visited, his family in California since he first began attending RTC’s in February 2012.
8. Student I was initially assessed by the District in 2009, due to his mother’s concerns regarding difficulties with focusing and completing his school work. Based upon the results of the assessment, the District determined that he did not qualify for special education and related services.
9. Parents requested a second assessment in the fall of 2011, due to concerns regarding his lack of success at school and low motivation. The District agreed to Parents’ request and conducted its second assessment of Student I during September and October 2011.
10. On November 3 and December 8, 2011, and February 8, 2012, the District convened Individualized Education Program (IEP) meetings for Student I, where the District reviewed the second assessment and determined that he was not eligible for special education.
11. On February 22, 2012, the District filed a Request for Due Process against Student I, alleging that it had properly completed educational assessments for Student I and lawfully denied him eligibility for special education. OAH designated this matter as case No. 2012020760. On March 6, 2012, Student I filed a complaint for due process against the District, alleging, amongst other claims, that the District had unlawfully denied Student I eligibility for special education. OAH designated this matter as Case No. 2012030133. On March 9, 2012, OAH ordered that these cases be consolidated.
Based upon ongoing residency within the geographic boundaries of the District, the District agrees to either reimburse Parents in an amount not to exceed $364.00 per day, for educational, residential, and mental health services provided by Meridell Achievement Center (“Meridell”), or to contract directly with a California certified residential treatment center (“RTC”) for educational, residential, and mental health services, from the date of execution of this Agreement, through and including the last day of the 2012-2013 regular school year.
Should Parents cease residing within the geographic boundaries of the District, the Parties agree that the District will bear no further financial responsibility for Student’s placement at Meridell or a California certified RTC.
The District agrees to schedule, and Parents agree to attend, an IEP meeting, to include staff from either Meridell, and/or other RTC pursuant to…to determine Student’s eligibility, present levels of performance, review progress, and develop goals and objectives within 30-days of full execution of this agreement.
13. Following the execution of the Agreement, the District did not convene an IEP meeting for Student I. Student I has never been determined eligible for special education pursuant to an IEP.
14. Student II is a 14 year-old male who has been found eligible for special education and related services as a pupil who is deaf and hard-of-hearing. Student II is currently a ninth grade student at Coronado High School, a District school.
15. In September 2012, which was Student II’s freshmen year of high school, he began attending High Tech High School (High Tech High). High Tech High is a charter school which is chartered by the Desert/Mountain Special Education Local Plan Area (SELPA), and is located in San Diego, California. Although High Tech High is physically located within the San Diego Unified School District, it is not a member school of the San Diego Unified School District. High Tech High, along with the Desert/Mountain SELPA, is a separate local educational agency. Similar to other charter schools, High Tech High does not have established residency requirements for admission. Normally, a minor student attends the public school of his or her parents’ residence. A public charter school, however, does not admit students by residency. It admits only volunteers, and can admit students who reside in the county of the charter school or in any county immediately adjacent to the county of the charter school.
16. While attending High Tech High, Student II resided with his parents at the B house. The B house is located conveniently close to High Tech High and Student II was able to ride his bicycle daily to-and-from school from this location.
17. Other than Student I, who was placed at an RTC, the family inhabited the B house each day and slept there each night. On occasion, Mother would spend the night with Grandmother, who was recently widowed, at the C house.
18. Parents were pleased that Student II had been admitted to High Tech High, which they considered a prestigious high school. Based upon its close proximity, Parents and Student II intended to reside at the B house during Student’s II’s tenure at High Tech High, which was anticipated to be the regular four years of high school.
19. In December 2012, during a school sponsored field trip, Student II engaged in conduct which was prohibited by High Tech High. In early January 2013, High Tech High brought a disciplinary proceeding against Student II. Pursuant to this disciplinary action, Parents and High Tech High agreed that Student II would leave the charter school.
20. On January 9, 2013, Parents enrolled Student II at Coronado High School. As part of this enrollment, Parents declared that they resided at the C house, and Mother signed an affidavit verifying residency at this address. Mother also provided a waste disposal invoice and a telephone invoice which were addressed to her at the C house address.
21. On January 7, 14, and 18, 2013, the District sent letters to Parents regarding its belief that the family did not reside within the geographic boundaries of the District. The District asserted that Students’ enrollment was based on false or unreliable evidence of residency.
22. On February 12, 2013, the District revoked Students’ enrollment in the District, including Student II’s enrollment at Coronado High School. The District also terminated its payments for Student I’s RTC placement.
23. In April 2013, the District permitted Student II to resume attending Coronado High School. The District has held IEP meetings for Student II and was implementing an agreed upon IEP as of the date of this hearing. The District also resumed payments for Student I’s RTC placement.
24. The District’s residency investigation of Students’ family was supervised by Richard J. Erhard, Assistant Superintendent of Student Services for the District, and Dr. Jeffrey Felix, the District’s Superintendent. Mr. Erhard testified as a witness on behalf of the District.
25. Beginning in January 2011, various District staff, including school site administrators, notified Mr. Erhard that they believed Students did not reside within the District.
26. By November 2011, the District had conducted a residency check at the C house, which was conducted by a school administrator and a local sheriff. These individuals went to the C house during the daytime and were greeted by Grandmother. Mr. Erhard found this residency check to be inconclusive.
27. By August 28, 2012, although Mr. Erhard suspected that Students did not reside within the District, he believed that he did not have enough evidence of non-residency to forego approving the Agreement, or to delay the District Board’s ratification of this agreement, which occurred several weeks later.
28. On August 30, 2012, two days following the full execution of the Agreement, the District retained the services of ESI International, Inc. (ESI), a private investigation firm, to determine whether Students were residing within the geographic boundaries of the District. ESI has conducted various high profile investigations since 1994 and specializes in fraud, economic crimes, and personnel issues for private and public sector clients. ESI is owned and operated by Robert Price. Mr. Price was a special agent for the Federal Bureau of Investigation from 1978 through 1986. He has received various commendations for his roles as a special agent and was directly involved in various investigations ranging from bank fraud to kidnapping. Since 1986, Mr. Price has worked as a private investigator. Mr. Price testified as a witness on behalf of the District.
29. On September 4, 2012, ESI began surveillance of Parents and Student II. From September 2012, through February 20, 2013 1 , ESI conducted 245 separate observations, called “spot checks,” pertaining to their investigation for this matter. This surveillance was meticulously recorded in hundreds of photographs and many hours of video recordings. ESI kept the District abreast of its surveillance and findings in periodic written reports to the District’s superintendent and attorney.
1 ESI did not conduct surveillance from October 11, 2012, through December 20, 2012.
30. ESI spot checks were conducted at various times of the day, often several times on the same day, and ranged from as early as 4:56 a.m., to as late as 10:13 p.m. Spot checks were conducted on weekdays and weekends.
31. As part of its surveillance, ESI conducted spot checks at the A, B and C houses.
There were holiday decorations, Christmas lights and a tree, at the B residence.
33. During this same time period, on three occasions, ESI observed Mother leaving the B home late at night, generally after 9:00 p.m., and driving to the C house. On each of these occasions, Mother would return to the B home early the next morning, generally around 6:30 a.m. From September 4 through January 11, 2013, ESI observed Father at the C house on one occasion. ESI did not observe Student II at the C house during this time frame.
34. ESI did not observe Parents or Students at the A house on any occasion.
35. Beginning on January 13, 2013, and lasting through the conclusion of the ESI surveillance on February 20, 2013, Parents and Student II spent the majority of nights sleeping at the C house. During this period, the family continued to frequent the B house during the daytime. Father and Mother continued to operate their home offices from the B house, and it was not unusual for them to be at the B house on both weekdays and weekends. Student II generally accompanied his Parents at the B house when he wasn’t in school, and the family’s black and white dog also accompanied Parents at the B house each day.
36. Mr. Price believes that at some point during the first two weeks of January 2013, the Parents discovered ESI’s surveillance. He asserted that this discovery, along with the present lawsuit, coincided with, and was the catalyst for, Parents and Student II changing their pattern of sleeping at the B house to sleeping at the C house. Mr. Price testified credibly on behalf of the ESI surveillance, which was substantial and persuasive evidence that the family resided outside of the District, at the B house, during a component of time which is material to these cases.
37. Mother is an artist who operates an art studio from the B house. To gain publicity for her art, she operates an online blog. A blog is a website where an individual can post their thoughts, journal entries and messages to the entire on-line world. Mother’s blog contained thoughts and information pertaining to both her art studio and her personal life.
40. On January 14, 2011, Mother posted a blog discussing new curtains she put in her home and posted before and after pictures, one of which is a picture looking out the window of the B house.
2 No evidence was provided which demonstrated that Grandmother was granted any form of custodial rights, or caregiver status, over Students.
Learn that they do “bed checks” in Coronado, where the asst. [sic.] principal and a Sheriff arrive unannounced at your door at 6am [sic.] to make sure your child is in the bed at the caregiver’s house…(Freakshow [sic], sheesh).
43. On March 19, 2011, Mother posted a blog entry where she stated that she enjoyed exploring her new neighborhood in Point Loma, where the B home is located.
45. On September 11, 2011, Mother posted a blog entitled “Distractions….”, wherein she discussed a power outage at her home. Accompanying this blog post, Mother included a photograph of her family lying on the lawn at the B house.
47. On several occasions over the course of several months of blog entries, Mother regularly referred to the C house as Grandmother’s home, and consistently described the B house as her new home, where she, Father and Students resided.
48. Over the past several years, Mother and Father have intermittently used all three houses, A, B and C, as their mailing address. The parties provided examples of letters and invoices which intermittently bear each one of these addresses.
49. However, prior to June 2012, Mother used bank checks from her Wells Fargo checking account which listed the A house address. As of June 2012, Mother began using checks from this same account which listed solely the B house address.
50. From January 2011, to the present, it is normal for Parents to receive their business mail at the B home. Father is uncomfortable receiving any mail at the C house because Grandmother, who has lent him money, will often rifle through his personal belongings and documents, especially documentation which may refer to financial matters. Father presently receives all of his mail at the B address.
51. Mother is an established artist who is local to Coronado. She described growing up in her parent’s home in Coronado, which was the A house. Mother has fond memories regarding the A house and she has an emotional attachment to this house.
52. Mother considers the A house her childhood home, and she was thrilled when she was able to purchase this property from Grandmother in 2005. Parents purchased the home for $600,000.00, and spent approximately $400,000.00 to restore the property. Their present mortgages for the home total one million dollars. In 2012, Parents listed the A home for sale for approximately 240 days. Following this listing, they received a firm offer to purchase the home for their original asking price of just over $2,100,000.00, which they turned down. Mother explained that when she received this favorable sale’s offer, she no longer desired to sell the property, due to her emotional attachment to this house.
53. After residing at the A house for several years, Parents chose to lease out this property due to financial difficulties. Initially, Parents chose to rent out the property on a short term, six month lease, because they believed they would return to the A home when their financial difficulties subsided. However, Father’s landscape architecture business was seriously impacted by the recent recession. Following the six month lease, Parents sought and found a long term lessor for the property. Presently, the A property has an annual lease, with a tenant’s right of renewal. Mother does not have an anticipated date for returning to the A home.
54. Nonetheless, Mother considers the A home her permanent residency. During her testimony, she regularly referred to the C house as her “Mom’s home” and she does not consider the B house a permanent residency. Rather, Mother asserts that her family was forced to leave the A home due to financial difficulty, and because she intends to return there some day, the A home is her family’s permanent residence. For this reason, Mother contends that Students are residents of Coronado and the District.
55. Mother described some of Student I’s emotional deficits and his difficulties with drug addiction. Student I is a bright, likable young man who has suffered from serious depression and some processing delays. She attributed Student I’s drug abuse to his growing up in Coronado and various influences he was subjected to while attending Coronado High School. She purported that Coronado High School has a well-known problem with students abusing drugs, which she feels is endemic to the small beach community. She is concerned that Student I’s younger brother, Student II, may fall into a similar pattern of drug abuse if he is exposed to the same influences his brother was subjected to, which include influences she feels still exist at Coronado High School.
56. Mother described that she was very pleased when Student II was accepted to High Tech High, so that he could avoid attending Coronado High School. When he left High Tech High in early January 2013, Mother enrolled Student II at Coronado High School because she believed Parents resided within the District, at either the A or C houses.
57. Mother asserted that some conclusions drawn by the ESI surveillance were inaccurate. For example, Mother testified that she had slept at the C house more frequently than the three instances recorded by ESI. Mother described that she occasionally spent the night at Grandmother’s house during the time period covered by the ESI surveillance due to marital problems, and because Grandmother required more assistance due to the recent death of her husband. Mother described that her marital problems were caused by a difficult relationship between Father and Grandmother. During these occasions, Father and Student II continued to sleep at the B house and Mother would go by herself, very late at night, to the C home. Mother was unable to recall how many nights she slept at Grandmother’s home, but her testimony evidenced it was approximately six times rather than the three occasions recorded by ESI. Mother continued to keep all of her personal belongings at the B home, and would return early the next morning to be with Student II and to operate her home business. Mother posited that the C house could be considered Students’ residence due to her sleeping there on occasion.
58. Mother provided testimony which was often confusing and incongruent with other evidence. For example, Mother was unable to recall where her family resided during substantial periods of time over the last two years. She testified that after moving to the B house in January 2011, Parents and Student II moved back to the C house, and then returned again to the B house prior to September 2012, when Student II began his freshman year at High Tech High. However, she could not recall the month or year when either of these two moves occurred, and she was unable to provide any details regarding these transitions. Mother became frustrated when trying to describe this information, and rather than provide concrete information, summarized her family’s whereabouts as a “freak show.” Another example of a problem found in Mother’s testimony related to her testimony concerning a mold problem. She testified that her family had to leave the B house due to a mold problem, but was uncertain when. However, evidence showed that a mold problem was remediated within one week of discovery, during the month of October 2012. Mold impacted one bathroom of this three bathroom property, during a period of time that Parents acknowledged working and sleeping at this home. There was no evidence provided which showed that the family vacated the B home during this period of time, or ever, due to a mold problem. While Mother was an impassioned witness, her testimony was often unclear and inconsistent with more persuasive evidence.
59. Father generally testified in a similar manner as Mother. He believes that the A home is his permanent residence. However, like Mother, he does not anticipate returning to this property anytime in the foreseeable future. Similar to Mother, he does not consider either the B or C houses as his family’s permanent residence.
60. Throughout his testimony, Father regularly referred to the C house as his mother-in-law’s, or Grandmother’s, home. However, unlike Mother, he did not feel comfortable at the C house. Grandmother regularly infringed upon Father’s privacy at the C house. Grandmother went through his mail and personal belongings, did not respect closed doors, and made living at the C house unbearable for Father. It was due, in part, to this conduct that the family chose to move to the B house, which was vacant.
61. Similar to Mother, Father described moving back to the C house after moving into the B house, and then returning to the B house in September 2012. Father was similarly unable to recall when these moves occurred, or to provide any details regarding these moves, such as what caused the family to move back and forth between these two houses.
62. Since returning to the C house in mid-January 2013, Parents and Student II have slept in the main house, as the detached loft is now being used by Grandmother’s niece. Given the problems Father complained of while residing in a detached part of the home, it is likely his concerns will be greater now that the family is sleeping in the main portion of the C home, along with Grandmother.
63. Father testified that Grandmother will permit him and his family to return to the B house whenever they wish. He described that Grandmother would like to sell the B house someday, but this property is not presently for sale and there is no anticipated date when it may be listed for sale.
64. The family does not pay rent at the C house, but has an agreement with Grandmother to pay her one dollar per month as rent for the B house.
65. As of the date of the hearing, the family’s furniture and various personal items were still in Point Loma at the B house. Father testified that he would not move the family’s furniture to the C house, because this was Grandmother’s house and she already had her own furniture.
66. Father still works at the B house daily with several employees. The B house is residentially zoned. Therefore, any business at this location must be accompanied by a residence.
67. From January 13, 2013, through the date of the hearing, Parents and Student II, and the family dog, would sleep at Grandmother’s home in Coronado and then return daily to the B home in Point Loma, where they conducted their business and personal affairs. At present, while the family sleeps uncomfortably at Grandmother’s house, the B house sits livable and fully furnished, yet unoccupied at night.
68. Father provided testimony that all of Student I’s furniture and personal property have been kept at the B home since he began attending RTC’s in February 2012, other than some personal effects that he took to the RTC’s. Student I’s personal property was still located at the B house as of the date of this hearing.
69. Father’s testimony failed to substantiate Students’ claim that their permanent residence should be considered either the A or C houses, for a period of time which is material to these cases.
70. Bryan Scott is a general contractor who has worked directly for Parents and Grandmother. He has conducted various repairs and renovations to the A, B and C homes. Mr. Scott testified as a witness on behalf of Students.
71. Mr. Scott confirmed that Parents and Student II are not presently sleeping at the B home, although they are generally there during the daytime. He described the B home as an active location during the daytime, with both Mother and Father’s small businesses operating from this location. Student II also goes to this location on a daily basis, when he is not at school.
72. Mr. Scott described that the family’s furniture is spread throughout the B house in a livable manner, and not kept in a manner consistent solely as storage. He described seeing the family’s personal belongings and effects, such as toothbrushes and toothpaste, still present in the B house.
73. Mr. Scott explained that he had been hired by Grandmother to renovate the B house so that she could one day sell this property, but he does not know when Grandmother intends on selling this home. Although Grandmother hired and pays him, he described that Mother oversees and directs his work. The property has undergone various renovations from time to time, including improvements to a bathroom, remediating mold in one bathroom, the addition of a bathroom for Father’s office, and improvements to the kitchen. However, he described that the property has always been in a livable condition and remains so at present.
74. Grandmother is Mother’s mother, and is an active participant in Parents and Students’ lives. She testified briefly on behalf of Students. Grandmother owns the B and C houses through a trust which was established by her late husband (Grandfather). Grandfather passed away in October 2012 after suffering from Alzheimer’s disease. He was Mother’s stepfather and has several adult children from a previous marriage. Grandmother described that, pursuant to the trust, several offspring, including half-siblings, will have an ownership interest in the B and C homes when she passes. She does not want to diminish the ownership interests the other siblings will have in the B property by selling, or giving, it to Parents.
75. Grandmother resides solely at the C home. She provided details concerning the loft above the garage where Parents and Students temporarily stayed after leaving the A house in January 2010. She described that she had promised this particular loft space to her niece, who attended a local college. Grandmother testified that it was well known to Parents that they could only use this space for a temporary period of time, until her niece, who was then a freshman in college and residing in the school dormitory, required this space during her sophomore, junior and senior years of college. As of the hearing, the niece was residing in the detached loft at the C house.
76. Grandmother will permit Parents and Students to reside at either the B house or the C house for as long as they wish, subject only to the trust taking effect upon her death. To that end, she does not charge the family rent to stay at the C house. However, she does charge Parents rent, one dollar per month, which she takes seriously, to stay at the B house. Moreover, as part of their agreement to stay at the B house, Parents have promised to supervise the property’s various renovations.
77. Grandmother presented as a credible and caring witness. However, her testimony failed to overcome the substantial evidence which showed that Students resided outside of the District during times material to these cases.
1. In a special education administrative due process proceeding, the party seeking relief has the burden of proving the essential elements of his claim. (Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528, 163 L.Ed.2d 387].) The standard of a preponderance of evidence, also known as a balance of probabilities, is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than a 50 percent chance that the proposition is true. In this case, the parties stipulated that the District had the burden of establishing that Students’ were not residents during a period of time which was material to these cases.
2. Under the Individuals with Disabilities Education Act (IDEA), the State Educational Agency has the responsibility for the general supervision and implementation of the Act. (20 U.S.C. § 1412(a)(11)(A); 34 C.F.R. § 300.149(a)(2006).) This responsibility includes ensuring that a free appropriate public education (FAPE) is available to all children with disabilities in the mandated age ranges within the state. (20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101(a)(2006).) Generally, a FAPE is made available through a Local Educational Agency (LEA) within the state. (20 U.S.C. § 1412(a)(12)(A); Letter to Covall, 48 IDELR 106 (OSEP Dec. 2006).) In this case, the District and the San Diego Unified School District (SDUSD) are the Local Educational Agencies, or LEA’s, within the meaning of these provisions.
3. Special education due process hearing procedures extend to the parent or guardian, to the student in certain circumstances, and to “the public agency involved in any decisions regarding a pupil.” (Ed. Code, § 56501, subd. (a).) Such parties have the right to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” (20 U.S.C. § 1415(b)(6); Ed. Code, § 56501, subd. (a).) In this matter, OAH has jurisdiction to hear and decide the residency issue presented for decision because the issue concerns what LEA has the responsibility of providing Students with a FAPE.
7. The IDEA speaks in terms of an LEA “providing for the education of children with disabilities within its jurisdiction.” (20 U.S.C. § 1413(a)(1).) California law generally requires students to attend the public school “in which the residency of either the parent or legal guardian is located.” (Ed. Code, § 48200.) Students are not claiming any exceptions to this general rule.
Courts and legal writers usually distinguish “domicile” and “residence,” [b]ut statutes do not always make this distinction in the employment of those words. They frequently use “residence” and “resident” in the legal meaning of “domicile” and “domiciliary,” and at other times in the meaning of factual residence or in still other shades of meaning. . . . [I]n our codes “residence” is used as synonymous with domicile in the following statutes: sections 243 and 244 of the Government Code . . . .
There can only be one residence.
The residence of the parent with whom an unmarried minor child maintains his or her place of abode is the residence of such unmarried minor child.
ISSUE: Were Students residents of the District during all times material to these cases such that the District was responsible for providing them with special education and for implementing Students’ IEPs?
10. On February 19, 2013, Students filed separate complaints for due process. In Student I’s complaint he alleged that the District denied him educational rights during a period of time which began 30 days after the Agreement was signed. Student II similarly alleged he was denied educational rights beginning sometime in September 2012. Neither Student included an allegation in their respective complaints which predated September 2012. Consequently, this Decision will be limited to the period of time which is material to these cases, which is September 1, 2012, through the date of the hearing.
12. Students argue that the A home should be considered Students’ legal residence. Students assert that Parents’ stated intent to return to the A home someday is sufficient, by itself, to confer the responsibility of providing Students a FAPE to the District.
14. Consequently, a preponderance of evidence in the present matter revealed that Parents’ intended to relocate their residence from the A home, located within the District, to the B house, located within the boundaries of the SDUSD, and their actions supported this intent. For these reasons, Students were not residents of the District for a period of time material to these cases.
15. In the alternative, Students argue that the C house should be considered Students’ residence.
19. Finally, Mother and Father each testified that they intended to reside at the B house during Student II’s attendance at High Tech High, which they anticipated would encompass the next four years. It is objectively unreasonable to describe a home which the family has physically moved all of their belongings into, and where they intend to sleep nightly for at least the next four years, as a temporary residence.
20. Consequently, the majority of evidence showed that from September 1, 2012, through January 12, 2013, Students resided at the B house, which was located outside of the District’s geographic boundaries.
23. Consequently, a preponderance of the evidence demonstrated that the C house, located within the District’s geographic boundaries, was Students’ residence from January 13, 2013, through the date of this Decision.
1. The District was not responsible for providing Students with special education and implementing Student’s IEP’s from September 1, 2012, through January 12, 2013.
2. The District was responsible for providing Students with special education and implementing Student’s IEP’s from January 13, 2013, through the date of this Decision.
Pursuant to California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. The District and Student each prevailed partially on the residency issue.
This is a final administrative decision, and all parties are bound by this Decision.


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BLACK v. ELKHORN MIN. CO.
Thomas H. Carter, for plaintiff in error.
W. E. Cullen, for defendant in error.
This is a writ of error to the circuit court of appeals for the Ninth circuit. The action was brought by the plaintiff in error for the purpose of recovering dower in a mining claim in Montana a fractional interest in which was owned by her husband during coverture. The question is whether a mere locator of a mining claim in the state of Montana and under the laws of the United States, and having only the possessory rights conferred by those laws, has such an estate in the property as will sustain a claim for dower therein. The claim is made by the plaintiff, as widow, under the statute of Montana relating to dower (1 Laws Mont. 1876, c. 63), which reads as follows: 'A widow shall be entitled to a third part of all lands whereof the husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form. Equitable estates shall be subject to a widow's dower, and all real estate of every description contracted for by the husband during his [163 U.S. 445, 446] lifetime, the title to which may be completed after his decease.' Another statute of Montana provides that 'the word 'land' or 'lands' and the words 'real estate' shall be construed to include lands, tenements and hereditaments, and all rights thereto and all interests therein.' Comp. Laws Mont. p. 248, 202.
The case was commenced in the state court, and was subsequently removed, on the petition of the defendant, to the United States circuit court for the district of Montana. The facts upon which the question arises appear in the pleadings, and the question was raised by demurrer.
The plaintiff is the widow of one Leander W. Black, who died intestate in July, 1881. During his lifetime, and while the plaintiff was his wife, Black owned an undivided two-fifths of a certain mining claim situate in the then territory of Montana, called the 'A. M. Holter Quartz Lode.' On the 7th of March, 1879, Black sold and conveyed his interest in this claim to one Burton, who took possession thereof, but the plaintiff did not join in that conveyance. The interest conveyed by him to Burton subsequently passed by various mesne conveyances to the defendant in error. On the 29th of October, 1883, an application was made to th proper United States land office by the immediate predecessor in interest of the defendant in error to enter the claim for patent, and such proceedings were had in the matter of the application that on the 19th of November, 1889, a patent therefor was issued by the United States to the applicant, covering the whole interest in the mining claim. No protest or adverse claim or objection of any character was made of filed by the plaintiff in error at any stage of such proceedings in the land department. Upon these facts the circuit court held that the plaintiff had a contingent dower interest in the mining claim, under the Montana statute, although none in the interest the United States retained in such mining lands prior to the locator becoming entitled to a patent therefor; but that by the granting of a patent by the United States to the defendant's predecessor the estate or interest in the lands called a mining claim ceased to exist, and the title to the whole land passed to the [163 U.S. 445, 447] patentee, the mining claim became merged in the paramount title, and perished, and no estate was in the defendant out of which plaintaiff could ask to have dower assigned.
Upon writ of error sued out by the plaintiff to review the judgment rendered against her by the circuit court, the case was argued before the United States circuit of appeals for the Ninth circuit, where the judgment was affirmed. That court held that the locator, before he made any application to purchase, or paid any of the purchase money, had no such estate in the mining claim, or against the government or its grantee, as that a right of dower could be founded thereon by virtue of any state legislation, and it therefore affirmed the judgment of the circuit court. 7 U. S. App. 393, 3 C. C. A. 312, and 52 Fed. 859. The plaintiff brings the case here for a review of the judgment against her in the court of appeals.
The two courts, while not precisely harmonious in their views as to the principles upon which the judgment should be rested, yet agreed in the rusult that the plaintiff was not entitled to dower. It was stated on the argument here that there is no decision of the supreme court of the state of Montana construing the state statute on the subject of dower, so far as regards this question.
The first question that presents itself is, what is the character of the interest which a locator has in a mining claim under the Revised Statutes of the United States, and prior to the time that he has made any application to purchase, or paid any of the purchase money, and where no patent has been issued to him for the land? Also, what interest does he convey by a conveyance purporting to convey it all, but in which his wife does not join?
'Sec. 2319. In all cases land valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law.
Section 2322 gives to locators of all mining claims and their heirs and assigns, as stated therein, 'the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies' as described in said statute.
It does not, by its terms, grant any right to the wife of the locator, either present or contingent. Being the owner of the lands, the government could, of course, impose its own terms upon which to grant any right, whether of possission or of purchase.
Section 2326 provides for the course to be pursued in case an adverse claim is filed, and for the issuing of a patent after a decision by a court of competent jurisdiction of the question as to which of the parties is entitled thereto. Perego v. Dodge, 16 Sup. Ct. 971.
It has been held that this character of interest thus outlined is property, and it is recognized as such in those states of the West whose inhabitants are interested in mines. These claims are subjects of bargain and sale, and constaitute, as it is said, very largely the wealth of the Pacific coast states; and the right to sell, transfer, mortgage and inherit them is recognized by the courts. Forbes v. Gracey, 94 U.S. 762 - 766; Belk v. Meagher, 104 U.S. 279 , 283; Manuel v. Wulff, 152 U.S. 505, 510 , 14 S. Sup. Ct. 651.
Mr. Justice Miller, in the course of his opinion in Forbes v. Gracey, supra, stated: 'It is very true that congress has by statutes permitted individuals to dig out and convert to their own use the ores containing the precious metals which are found in the lands belonging to the government without exacting or receiving any compensation for those ores, and without requiring the miner to buy or pay for the land. It has gone further, and recognized the possessory rights of these miners, as asserted among themselves by rules which have become laws of the mining districts as regards mining claims; but in doing this it has not parted with the title to the land, except in cases where the land has been sold in accordance with the provisions of the law upon that subject.' [163 U.S. 445, 450] The interest in a mining claim, prior to the payment of any money for the granting of a patent for the land, is nothing more than a right to the exclusive possession of the land based upon conditions subsequent, a failure to fulfill which forfeits the locator's interest in the claim. We do not think that under the federal statute the locator takes such an estate in the claim that dower attaches to it.
To sum up as to the character of the right which is granted by the United States to a locator, we find: (1) That no written instrument is necessary to create it. Locat ng upon the land, and continuing yearly to do the work provided for by the statute, gives to and containues in the locator the right of possession as stated in the statute. (2) This right, conditional in its character, may be forfeited by the failure of the locator to do the necessary amount of work; or if, being one among several locators, he neglects to pay his share for the work which has been done by his coowners, his right and interest in the claim may be forfeited to such co-owners under the provisions of the statute. (3) His interest in the claim may also be forfeited by his abandonment, with an intention to renounce his right of possession. It cannot be doubted that an actual abandonment of possession by a locator of a mining claim, such as would work an abandonment of any other easement, would terminate all the raight of possession which the locator then had.
An easement in real estate may be abandoned without any writing to that effect, and by any act evincing an intention to give up and renounce the same. Snell v. Levitt, 110 N. Y. 595, 18 N. E. 370, and cases cited at page 603, 110 N. Y., and page 370, 18 N. E., of opinion of Earl, J.; White v. Railroad Co., 139 N. Y. 19, 34 N. E. 887. If the locator remained in possession, and failed to do the work provided for by statute, his interest would terminate; and it appears to be equally plain that if he actually abandoned the possession, giving up all claim to it, and left the land, all the right provided by the statute would terminate under such circumstances. If he convey to another a right which may be thus lost, that conveyance would seem to be equivalent to an abandonment by him of all right under the statute. What could [163 U.S. 445, 451] be better evidence of an intention to abandon than an actual conveyance of his right to another, ceasing to do any work thereon, and the giving up of his possession in accordance with his conveyance. The abandonment by simply leaving the land is no more efficacious than conveying his rights, and also leaving possession without any intention of returning. His simple abandonment would leave no right remaining in his wife to claim dower upon his death in the interest thus abandoned. If he add a conveyance as a clearer evidence of abandonment, her alleged right to dower is not strengthened.
By the terms of the statute there is no grant of any right to the wife. It is granted to the locator and to his heirs and assigns, and there is no condition that hampers the right to convey by incumbering it with an inchoate right of dower. And until he does some act towards paying the purchase money he obtains no vested right of purchase or to claim a patent. Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U.S. 428 , 12 Sup. Ct. 877; Shepley v. Cowan, 91 U.S. 330 .
The last-cited case arose under the statute in relation to a settler seeking to acquire the right of pre-emption in certain lands, yet the same principle applies to a case of one who had located land, and is in possession thereof, but has paid nothing on account of the lands, and has made no effort to purchase the same. An abandonment, therefore, by the locator, surrenders merely a right to the exclusive possession, as provided for in the statute, which exclusive possession remains during the pleasure of the government. An abandonment of it by leaving it, not intending to return, or a conveyance of his interest to a third party, would seem equally to terminate that interest, and effectually to bar all possible future claim, if any ever existed, on the part of his wife to dower in such premises.
By conveying his interest as locator, he not only ceases to do any work on the claim as provided for by statute, but he puts another in possession with all his rights to do the work called for by it, and gives him the right to do all that he could have done towrads purchasing the land itself. When the grantee does the work, and then obtains a patent, it ought [163 U.S. 445, 452] not to be burdened with any right of dower in the widow of his grantor, who had, by his conveyance, abandoned all his rights, and given up the possession upon which they were based. The statute, by expressly providing that the locator and his heirs and assigns should have the rights, clearly meant to provide for a conveyance thereof to the grantee to the same extent that they were possessed by the grantor.
We are of opinion, therefore, that by the conveyance of Mrs. Black's husband to his grantee of all his interest as locator in the mining claim in question he abandoned all his right and interest in the claim to his grantee, and that interest which thus passed to his grantee was not subject to any possible incumbrance of the wife by way of dower in the premises. The interest granted by the United States was of such a nature that a conveyance of Black's right to the possession terminated it to the same excent as if it had been forfeited by nonperformance of the conditions provided for in the statute, and hence the wife has no claim for dower in the premises.

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Plaintiff Albert Cervantes appeals from the district court's order granting summary judgment to defendant in this case brought pursuant to 42 U.S.C. § 1981 and §§ 2000e-2000e-17 (Title VII). Because the record indicates that Mr. Cervantes made a prima facie showing and offered sufficient evidence of pretext to create a genuine dispute of material fact as to the validity of defendant's articulated reason for terminating him, we reverse and remand.
Mr. Cervantes, an Hispanic, was hired by defendant Wal-Mart in 1990. He was approached by a co-worker regarding an investment opportunity in the Friends and Family multi-level marketing scheme. To enter, he had to invest $2,000.00 and could not could not cash out until a sufficient number of other entrants had entered the program.(1) After he had made money during his period of participation, Mr. Cervantes admitted that he solicited another employee's participation after hours, but in her office. When defendant learned of the solicitation, Mr. Cervantes was terminated along with thirteen other employees, twelve of whom were Hispanic. After receiving a probable cause determination from the EEOC and the Colorado Civil Rights Division, Mr. Cervantes commenced this action alleging defendant had terminated him based on his race.
The district court granted summary judgment to defendant on the ground that Mr. Cervantes had not shown that his race was a motivating factor in his termination. The court found that four similarly situated Anglos who were not terminated did not meet the conditions defendant had set forth for termination.
On appeal, Mr. Cervantes argues that the district court erred in finding that he had not established a prima facie case of race discrimination. He further contends that he did establish sufficient evidence of pretext and his case should have been permitted to proceed to trial.
We review the district court's ruling on a motion for summary judgment de novo, examining "the record to determine whether any genuine issue of material fact was in dispute" and whether "the substantive law was applied correctly." McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (quotation omitted).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), the Court identified four factors a plaintiff must establish to set forth a prima facie case of discrimination.(2) The critical prima facie inquiry is whether the plaintiff has demonstrated that the adverse employment action occurred "under circumstances which give rise to an inference of unlawful discrimination." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). In its analysis of whether he had established a prima facie case, the district court determined that Mr. Cervantes had to show that (1) he belonged to a protected group; (2) he was performing satisfactorily, (3) he was subject to an adverse employment action, and (4) other, similarly qualified individuals who were not members of the suspect class, were treated more favorably. The court held that Mr. Cervantes had not met the fourth prong as two Anglo workers similarly situated were also fired.
As we noted in Perry, the Supreme Court has not required that a plaintiff meet the fourth factor identified by the district court. See 199 F.3d at 1135-36. We have clarified the controlling factors a plaintiff must demonstrate to establish a prima facie case in a termination case. The plaintiff must show that (1) he belongs to a protected class; (2) he was qualified for his job; (3) despite his qualifications, he was discharged; and (4) the job was not eliminated after his discharge. See id. at 1138. The first three prongs are clearly met here. As the parties did not analyze the case in this posture, they did not address whether Mr. Cervantes's job was eliminated after his discharge. It would appear that it was not. On remand, the parties can establish this fact. For our purposes here, we will accept that Mr. Cervantes has set forth a prima facie case of discrimination.
At the same time the Friends and Family scheme was operating, another multi-level marketing schemeUniversal Networkwas operating. Universal Network compensated its participants with commissions earned in the program and offered the sale of items of value which were sold to both members and non-members. Defendant maintains that Universal Network was not an illegal pyramid scheme and, thus, no one who solicited for it was terminated.
Defendant proffered non-discriminatory reasons for terminating Mr. Cervantes. Therefore, he must refute defendant's reasons by showing that a genuine dispute of material fact is present as to whether the employer's proffered reasons are pretextual. Kendrick v. Penske Transp. Servs, Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). Pretext cannot be established by allegations alone. Rather, Mr. Cervantes must demonstrate either that "a discriminatory reason more likely motivated the employer or . . . that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; see also Drake v. City of Fort Collins, 927 F.2d 1156, 1160 (10th Cir. 1991) (in responding to summary judgment motion, "plaintiff must raise a genuine factual question as to whether defendants' reasons are pretextual").
"Evidence concerning the treatment of persons outside of the protected class is . . . appropriately used in assessing whether a plaintiff has shown that the defendant's justification for the discharge was pretextual." Kendrick, 220 F.3d at 1229 n.8. Mr. Cervantes contends that the two Anglos who were terminated were not similarly situated to him. One Anglo apparently lied to investigators about his participation in the scheme and Mr. Cervantes asserts that this initial lie caused his termination. The other Anglo was not terminated until after she returned to work following a voluntary layoff which was after Mr. Cervantes filed his charge of discrimination. Mr. Cervantes also notes that other Anglo employees who participated in the scheme were not fired. Defendant stated that these employees were not similarly situated to Mr. Cervantes as they did not admit to the solicitation nor did two other employees identify them as having solicited participants. Thus, these employees did not meet defendant's criteria for termination.
Mr. Cervantes points out that both the Colorado Civil Rights Division and the EEOC determined that there was reasonable cause to believe that he had been discharged because he was Hispanic. As the district court stated in the pretrial order: "During the course of the investigation conducted by the Colorado Civil Rights Division, Wal-Mart presented evidence that showed that every Hispanic accused of solicitation was terminated while non-Hispanics who admitted to solicitation were not terminated. Based on this evidence, the CCRD found probable cause of discrimination. The Equal Employment Opportunity Commission concurred." Appellant's App. at 13.
In its order, the district court did not discuss this evidence. An EEOC report can be highly probative of the ultimate issues involved.
[T]o ignore the manpower and resources expended on the EEOC investigation and the expertise acquired by its field investigators in the area of discriminatory employment practices would be wasteful and unnecessary.
The fact that an investigator, trained and experienced in the area of discriminatory practices and the various methods by which they can be secreted, has found that it is likely that such an unlawful practice has occurred, is highly probative of the ultimate issue involved in such cases.
Smith v. Universal Servs, Inc., 454 F.2d 154, 157 (5th Cir. 1972) (emphasis added).
Admittedly, a district court has discretion whether to admit an EEOC probable cause determination at trial. See Williams v. Nashville Network, 132 F.3d 1123, 1128-29 (6th Cir. 1997); Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1554-55 (11th Cir. 1995); see also Chandler v. Roudebush, 425 U.S. 840, 863 n.39 (1976) (administrative findings regarding claims of discrimination are admissible in a trial de novo under Federal Rules of Evidence 803(8)(C), the public records and investigatory file exception to the hearsay rule).
Clearly the EEOC report has probative value. On summary judgment, this report, which was already noted in the pretrial order, should have been addressedalong with the Colorado Civil Rights Division decision. The court should have explained why it was according no credence to those reports.
Mr. Cervantes also contends he presented evidence that at least one racially hostile remark was made to him by a supervisor. Apparently, defendant offers employees a choice of items when they have been accident free for a year. Mr. Cervantes and several other Hispanics chose black jackets. The supervisor made the comment that "[i]t almost looks like the Mexican mafia out here." Appellant's App. at 75. The timing of this remark is unclear. It appears to be only a stray remark and may be of little probative value. See Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209-10 (10th Cir. 1999).
Mr. Cervantes contends that the first time defendant's employees were told that soliciting on company property was a terminable offense occurred after he was terminated. It appears that defendant would permit soliciting on company property for legal schemes, such as Universal Network, but not for illegal schemes such as Friends and Family, the one in which the Hispanics were involved.
The record shows that defendant had a policy that "engaging in non-work related activities during work time," including solicitation or distribution of literature, is not permitted. Id. at 130. The employee handbook states that dishonest and compromised integrity are causes for immediate termination. Id. at 126. It goes further to explain that dishonesty may include, among other things "misuse of the associate discount privilege or other improper transactions for personal gain." Id. at 128. These policy statements do not make it clear that solicitation for an illegal scheme warrants termination whereas solicitation for a legal scheme does not. A jury could find that defendant's decision to terminate plaintiff rested on a racially-based application of its policy.
On the record presented to us, Mr. Cervantes has presented sufficient "evidence that the defendant's proffered reason [for his termination] was pretexuali.e. unworthy of belief, [thus, he] can withstand a summary judgment motion and is entitled to go to trial." Kendrick, 220 F.3d at 1230. The judgment of the United States District Court for the District of Colorado is REVERSED and the case is REMANDED for further proceedings in accordance with this order and judgment. Mr. Cervantes' motion to file a supplemental appendix is DENIED. Although the plaintiffs in Pribble v. Wal-Mart, No. 98-CV-644, were Hispanics who were terminated by defendant at the same time as Mr. Cervantes for the same reasons, and although they prevailed at trial on their § 1981 claims, we do not take judicial notice(4) of that fact in determining whether Mr. Cervantes presented sufficient evidence to survive summary judgment.
1. Mr. Cervantes does not dispute that in actuality, Friends and Family was an illegal pyramid scheme.
2. "While McDonnell Douglas involved a Title VII claim for failure to hire, the analytical framework it pioneered applies equally to claims brought pursuant to section 1981." Perry v. Woodward, 199 F.3d 1126, 1135 (10th Cir. 1999), cert. denied, 120 S. Ct. 1964 (2000). Thus, our discussion, infra, covers both of Mr. Cervantes' claims.
3. Of the sixty-four employees interviewed during the investigation, twenty-one were Hispanic. Fourteen employees were ultimately terminated, twelve of them were Hispanic.
4. Judicial notice "alleviates the parties' evidentiary duties at trial, serving as a substitute for the conventional method of taking evidence to establish facts." York v. AT&T, 95 F.3d 948, 958 (10th Cir. 1996) (quotation omitted); see also Fed. R. Evid. 201(b). Mr. Cervantes cannot take advantage of a jury's decision in a parallel case to relieve him of his duty to prove his case here.


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Boehringer Ingelheim Pharma GmbH & Co. KG v. Web Advertising, Corp.
The Complainant is Boehringer Ingelheim Pharma GmbH & Co. KG, Ingelheim, Germany, represented by Hofstetter, Schurack & Skora Patent-und Rechtsanw�lte, Germany.
The disputed domain name <boehringerinelheim.com> is registered with Capitoldomains, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on September�27,�2006. On September�29,�2006, the Center transmitted by email to Capitoldomains, LLC a request for registrar verification in connection with the domain name at issue. On September�29,�2006, Capitoldomains, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the�“Policy”), the Rules for Uniform Domain Name Dispute Resolution 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 the Respondent of the Complaint, and the proceedings commenced on October�10,�2006. In accordance with the Rules, paragraph�5(a), the due date for Response was October�30,�2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October�31,�2006.
The Center appointed Dennis A. Foster as the sole panelist in this matter on November�21,�2006. 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.
The Complainant is a large, well-known German pharmaceutical company that has been in business for over a century. It owns registered trademarks for BOEHRINGER INGELHEIM in several countries (Annex 4 of the Complaint).
The Respondent registered the disputed domain name <boehringerinelheim.com> on November�5,�2005. The website found at the disputed domain name re-directs Internet users to other health-related websites.
- The Complainant has common law trademark rights in BOEHRINGER INGELHEIM according to � 4 No.�2 German Trademark Act. Moreover, the Complainant’s mark is registered as a trademark in the United States of America and various European countries.
- The Complainant’s mark has become a distinctive identifier associated with the Complainant and its products because of long and intensive world-wide use by the Complainant and the various other companies that make up its whole group of companies.
- As one of the twenty leading pharmaceutical companies in the world, the Complainant’s founding dates back to 1885. With world-wide net sales in 2004 amounting to €8,157 million, it has about 37,000 employees and 143 affiliate companies spread around the globe.
- The disputed domain name, <boehringerinelheim.com>, is nearly identical to the Complainant’s mark.
- The Respondent has no rights or legitimate interests in respect of the disputed domain name. To the best of the Complainant’s knowledge, Respondent is not a holder of any trademark similar to the Complainant’s mark or the disputed domain name; the Respondent does not use the disputed domain name or any similar trademark in connection with offering any of its own goods or services; and the Respondent is not an authorised dealer, distributor or licensor of the Complainant.
- The Respondent registered and is using the disputed domain name in bad faith since the website found at the name serves only as a link to other health-related sites.
The disputed domain name differs from the Complainant’s valid mark only by the exclusion of the space between the two names making up the mark and the letter “g” in the second of the two names. Innumerable prior Policy decisions have held that such minor deviations do not prevent a finding of confusing similarity between a domain name in dispute and a valid trademark.
Per the above, the Panel decides that the Complainant has sustained its burden to prove that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
In this case, the Panel is faced with a paucity of evidence regarding any rights or legitimate interests that the Respondent may have in the disputed domain name. The Complainant has provided little beyond the simple assertions that it has not licensed or otherwise authorized the Respondent’s use of the Complainant’s trademark, and that the Respondent does not have any apparent connection with or rights in any trademark similar to the domain name in contention. The Respondent has presented the Panel with no evidence of any kind.
Although the Policy puts the burden of proof on the Complainant as to Paragraph�4(a)(ii), the Panel is mindful of the difficulty in proving a negative proposition, and, in light of previous Policy cases (see Aetna Inc. v. Peter Carrington a/k/a Party Night, Inc., NAF Case. No.�154527, May�20,�2003; and Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No.�D2002-0568, August�1,�2002), considers that the Complainant’s assertions, together with its undeniable possession of rights in a trademark virtually identical to the disputed domain name, establish a prima facie case in its favor. Since the Respondent has presented no rebuttal – by, for instance, furnishing the Panel with evidence pertaining to ways in which it might establish its rights or legitimate interests in accordance with paragraph�4(c) of the Policy – the prima facie case becomes a conclusive case for the Complainant.
The Complainant alleges that the website found at the disputed domain name serves only as a link to other health-related websites. Since the Respondent has failed to submit a Response, it is reasonable for the Panel to accept the Complainant’s allegation as true. See e.g., Vertical Solutions Management, Inc. v. webnet-marketing, inc., NAF Case No.�FA95095 (July�31,�2000); and Talk City, Inc. v. Michael Robertson, WIPO Case No.�D2000-0009, (February�29,�2000). Prior panels operating under the Policy have found that a respondent’s use of a disputed domain name containing a strong trademark to merely re-direct Internet users to other websites is, in and of itself, sufficient grounds to sustain a finding of bad faith registration and use by that respondent. See e.g., Phillip Morris Incorporated v. r9net, WIPO Case No.�D2003-0004 (February�28,�2003); and Disney Enterprises, Inc. v. John Zuccarini, Cupcake City and Cupcake Patrol, WIPO Case No.�D2001-0489 (June�19,�2001). The�Panel concludes that such reasoning should control in this case.
As a result, the Panel rules that the Respondent registered and is using the disputed domain name in bad faith.
For all the foregoing reasons, in accordance with paragraphs�4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <boehringerinelheim.com>, be transferred to the Complainant.

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I am a Geologist with the U.S. Geological Survey at the Cascades Volcano Observatory in Vancouver, Washington. I specialize in volcano hazards assessment and risk research and applications for domestic as well as foreign volcanoes as a member of the Volcano Disaster Assistance Program (VDAP), co-funded by the U.S. Geological Survey and the U.S. Agency for International Development's Office of U.S. Foreign Disaster Assistance (USAID/OFDA). I am currently involved in several projects, including: compilation and analysis of a spatial database of Holocene volcanic vents in the western conterminous U.S., field mapping and characterization of Holocene rhyolitic tephras at Medicine Lake volcano in northern California, development of next generation volcano hazard and risk assessments, and co-leading the Bureau risk implementaton team.
Ramsey, D.W., Donnelly-Nolan, J.M., and Robinson, J.E., 2019, Hazard boundaries for the volcanic hazard assessment of Medicine Lake volcano, California: U.S. Geological Survey data release [Link].
Ewert, J.W., Diefenbach, A.K., and Ramsey, D.W., 2018, 2018 update to the U.S. Geological Survey national volcanic threat assessment: U.S. Geological Survey Scientific Investigations Report 2018–5140, 40 p., [Link].
Ludwig, K.A., Ramsey, D.W., Wood, N.J., Pennaz, A.B., Godt, J.W., Plant, N.G., Luco, N., Koenig, T.A., Hudnut, K.W., Davis, D.K., and Bright, P.R., 2018, Science for a risky world—A U.S. Geological Survey plan for risk research and applications: U.S. Geological Survey Circular 1444, 57 p., [Link].
Furze, A.J., Bard, J.A., Robinson, J.E., Ramsey, D.W., Kuntz, M.A., Rowley, P.D., MacLeod, N.S., 2017, Database for Geologic Maps of Pyroclastic-Flow and Related Deposits of the 1980 Eruptions of Mount St. Helens, Washington: U.S. Geological Survey Data Series 1054, [Link].
Bard, J.A., and Ramsey, D.W., 2016, High-resolution digital elevation dataset for Newberry Volcano and vicinity, Oregon, based on lidar survey of August-September, 2010 and bathymetric survey of June, 2001: U.S. Geological Survey data release, [Link].
Ramsey, D. W., 2009, Wizard Island in Gillespie, R. G., and Clague, D. A., eds., Encyclopedia of Islands: Berkeley, California, University of California Press, p. 979-981.
Ramsey, D. W., Schilling, S. P., Messerich, J. A., and Thompson, R. A., 2007, Rebuilding Mount St. Helens: Earth Imaging Journal, v. 4, no. 3, p. 26-27.
Ramsey, D. W., Robinson, J. E., Schilling, S. P., Schaefer, J. R., and Trusdell, F. A., 2007, Crisis GIS: Preparing for and Responding to Volcanic Eruptions in the United States, in Thomas, C., ed., Standards for Success: GIS for Federal Progress and Accountability: Redlands, California, ESRI Press, p. 3-8.
Ramsey, D. W., Dartnell, P., Bacon, C. R., Robinson, J. E., and Gardner, J. V., 2004, Crater Lake Revealed: Geospatial Solutions, v. 14, no. 12, p. 58.
Ramsey, D. W., Robinson, J. E., Dartnell, P., Bacon, C. R., Gardner, J. V., Mayer, L. A., Buktenica, M. W., and Nathenson, M., 2002, Crater Lake Revealed: Using GIS to Visualize and Analyze the Depths of Crater Lake, Oregon: ESRI Map Book, v. 17, p. 9.
Ramsey, D. W., Robinson, J. E., Christiansen, R. L., Smith, J. G., and Blakely, R. J., 2001, Digital Shasta: Applying GIS Technology to Volcano Hazards, in ArcUser, v. 4, no. 3, p. 66-67.
Ramsey, D. W., Robinson, J. E., Dartnell, P., Bacon, C. R., Gardner, J. V., Mayer, L. A., Buktenica, M. W., and Nathenson, M., 2001, Crater Lake Revealed: The Earth Geographic Monthly, v. 162, p. 14-15.
Howell, D. G., Brabb, E. E., and Ramsey, D. W., 2000, How useful is landslide information?: Lessons learned in the San Francisco Bay region, in Ernst, W. G., and Coleman, R. G., eds., Tectonic studies of Asia and the Pacific rim: A tribute to Benjamin M. Page (1911-1997): Columbia, Maryland, Bellwether Publishing Ltd. for the Geological Society of America, International Book Series, v. 3, p. 315-328.
Ramsey, D. W., Graham, S. E., and others, 1999, Landslide hazard susceptibility maps for the San Francisco Bay region: Tools for emergency planning during the 1997-98 El Niño: ESRI Map Book, v. 14, p. 18-19.
O'Hara, D., Karlstrom, L., and Ramsey, D. W., 2019, Volcanic topography covaries with subsurface magmatic structures through time in the Cascades Arc of the western U.S. [abs.]: Abstract 39-1, GSA Cordilleran Section Meeting, GSA.
Karlstrom, L., O'Hara, D. J., Lerner, A., and Ramsey, D. W., 2019, Patterns of crustal magma transport in arcs revealed by comparing geophysical observations with volcanic topography [abs.]: Abstract EGU2019-11048, General Assembly, EGU.
O'Hara, D. J., Karlstrom, L., and Ramsey, D. W., 2018, What can topography tell us about the regional-scale history of Cascades arc magmatism over the last 2 Myr? [abs.]: Abstract V31H-0228, Fall Meeting, AGU.
Mayberry, G. C., Ramsey, D. W., Lowenstern, J. B., and Pallister, J. S., 2018, The Volcano Disaster Assistance Program’s Journey to Developing a Systematic Plan to Monitor Program Progress- Learn from our Mistakes and Successes [abs.]: Abstract S02.11-703, Cities on Volcanoes 10.
Mayberry, G. C., Ramsey, D. W., and Pallister, J. S., 2017, The Volcano Disaster Assistance Program’s Performance Monitoring and Evaluation System: Coordinating, Capturing, and Communicating Progress in Building the Capacity to Respond to Volcanic Crises [abs.]: Abstract VS43E-232, IAVCEI 2017 Scientific Assembly.
Ramsey, D. W., and Siebert, L., 2017, Spatial and Temporal Database Compilation of Holocene Volcanic Vents in the Western Conterminous United States [abs.]: Abstract FT13B-217, IAVCEI 2017 Scientific Assembly.
Ramsey, D. W., and Siebert, L., 2015, Spatial compilation of Holocene volcanic vents in the western conterminous United States [abs.]: Abstract V31B-3013, Fall Meeting, AGU.
Vallance, J. W., Van Eaton, A. R., and Ramsey, D. W., 2015, Late Pleistocene and Holocene geology and hazards at Glacier Peak Volcano, Washington [abs.]: Abstract V33B-3088, Fall Meeting, AGU.
Shea, T., Giachetti, T., Gonnerman, H. M., Donnelly-Nolan, J. M., and Ramsey, D. W., 2014, From pumice to obsidian: Eruptive behaviors that produce tephra-flow dyads. I - The AD1100 Big Glass Mountain eruption at Medicine Lake Volcano (California) [abs.]: Abstract V14B-06, Fall Meeting, AGU.
Karlstrom, L., Loh, L.K., Ramsey, D. W., and Wright, H. M. N., 2013, Integrating temporal and spatial patterns of Quaternary Cascades eruptions with geochemistry, tomography and heat flow [abs.]: IAVCEI Scientific Assembly, Abstract 1P2_3B_O23.
Loh, L.K., Karlstrom, L., Ramsey, D. W., and Wright, H. M. N., 2013, Structure of the volcanic vent distribution of the Cascade arc from a new database of Holocene and Pleistocene volcanism, with a focus on pre-caldera monogenetic volcanism at Mount Mazama, Oregon [abs.]: Abstract V13E-2654, Fall Meeting, AGU.
Ramsey, D. W., 2013, Spatial databases for CalVO volcanoes: Current status and future directions [abs.]: Abstract V13G-2691, Fall Meeting, AGU.
Ramsey, D. W., and Driedger, C. L., 2013, Spatial Database of Holocene and Latest Pleistocene Volcanic Vents in the Western Conterminous U.S. [abs.] in Lowenstern, J. B., ed., Abstracts for the October 2012 Meeting on Volcanism in the American Southwest, Flagstaff, Arizona: U.S. Geological Survey Open-File Report 2013-1026.
Donnelly-Nolan, J. M., Jensen, R. A., Ramsey, D. W., and Robinson, J. E., 2012, Technology and geologic mapping at Newberry Volcano, Oregon [abs.]: Abstract V33B-2855 presented at Fall Meeting, AGU, San Francisco, CA, 3-7 December.
Loh, L. K., Karlstrom, L., Ramsey, D. W., and Driedger, C. L., 2012, A new multiparameter database of Holocene and Pleistocene Cascades magmatism [abs.]: Abstract V53B-2821 presented at Fall Meeting, AGU, San Francisco, CA, 3-7 December.
Ramsey, D. W., and Miller, C. D., 2011, Latest isopach mapping of Holocene rhyolitic tephras at Medicine Lake volcano, northern California [abs.]: Abstract V13C-2612 presented at 2011 Fall Meeting, AGU, San Francisco, CA, 5-9 December.
Ramsey, D. W., Donnelly-Nolan, J. M., and Felger, T. J., 2010, Digital geologic map database of Medicine Lake volcano, northern California [abs.]: Abstract V11C-2290 presented at Fall Meeting, AGU, San Francisco, CA, 13-17 December.
Ramsey, D. W., and Donnelly-Nolan, J. M., 2009, Geologic map geodatabase of Newberry Volcano, Oregon [abs.]: Geological Society of America Abstracts with Programs, v. 41, no. 7, p. 310.
Ramsey, D. W., Miller, C. D., and Ewert, J. W. 2009, Preliminary volume estimates of primary Holocene rhyolitic tephras at Medicine Lake volcano, northern California [abs.]: Geological Society of America Abstracts with Programs, v. 41, no. 7, p. 63.
Miller, C. D., Ramsey, D. W., and Ewert, J. W., 2008, New isopach maps of Holocene rhyolitic tephras at Medicine Lake volcano, northern California [abs.]: Eos Transactions of the American Geophysical Union, v. 89, no. 53 (Supplement), Abstract V11B-2037.
Ramsey, D. W., Robinson, J. E., Schilling, S. P., Schaeffer, J. R., Trusdell, F. A., Griswold, J. P., and Graham, S. E., 2007, Crisis GIS: Preparing for and responding to volcanic eruptions in the United States [abs.]: Abstracts Volume, Cities on Volcanoes 5, Abstract 31-P-07, p. 156-157.
Schilling, S. P., Ramsey, D. W., Messerich, J. A., and Thompson, R. A., 2007, Rebuilding Mount St. Helens [abs.]: Geological Society of America Abstracts with Programs, v. 39, no. 2, p. 37.
Donnelly-Nolan, J. M., Champion, D. E., Ramsey, D. W., and Lanphere, M. A., 2005, The basalt of Yellowjacket Butte, another large and interesting lava flow at Medicine Lake volcano, N. California, USA [abs.]: Eos Transactions of the American Geophysical Union, v. 86, no. 52 (Supplement), Abstract V53B-1562.
Champion, D. E., Donnelly-Nolan, J. M., Lanphere, M. A., and Ramsey, D. W., 2004, Magnetic excursion recorded in basalt at Newberry Volcano, Central Oregon [abs.]: Eos Transactions of the American Geophysical Union, v. 85, no. 47 (Supplement), Abstract GP43B-0861.
Donnelly-Nolan, J. M, Champion, D. E., Lanphere, M. A., and Ramsey, D. W., 2004, New thoughts about Newberry Volcano, Central Oregon, USA [abs.]: Eos Transactions of the American Geophysical Union, v. 85, no. 47 (Supplement), Abstract V43E-1452.
Ramsey, D. W., Robinson, J. E., Schilling, S. P., Schaefer, J. R., Kimberly, P., Trusdell, F. A., Guffanti, M. C., Mayberry, G. C., Cameron, C. E., Smith, J. G., McIntire, J. A., Snedigar, S., and Ewert, J. W., 2004, Crisis GIS: Preparing for the next volcanic crisis in the United States [abs.]: Eos Transactions of the American Geophysical Union, v. 85, no. 47 (Supplement), Abstract V43E-1455.
Thornber, C., Rowe, M., Pallister, J., Gooding, D., Ramsey, D. W., Ewert, J., Couchman, M., Dzurisin, D., Hoblitt, R., Clynne, M., Lowenstern, J., Vallance, J., and Cashman, K., 2004, A collaborative approach to petrologic monitoring of the Mount St. Helens 2004 eruption [abs.]: Eos Transactions of the American Geophysical Union, v. 85, no. 47 (Supplement), Abstract V53D-04A.
Donnelly-Nolan, J. M., Lanphere, M. A., and Ramsey, D. W., 2003, Medicine Lake volcano: Results of geologic mapping and argon dating [abs.]: Geological Society of America Abstracts with Programs, v. 35, no. 6, p. 563.
Robinson, J. E., Ramsey, D. W., Clynne, M. A., Schilling, S. P., and Thompson, R. A., 2003, Remote sensing as a tool for geologic mapping at Mount St. Helens, Washington [abs.]: Geological Society of America Abstracts with Programs, v. 35, no. 6, p. 562.
Bacon, C. R., and Ramsey, D. W., 2002, Digital geologic map of Mount Mazama and Crater Lake caldera, Oregon [abs.]: Eos Transactions of the American Geophysical Union, v. 83, no. 47 (Supplement), p. F1462.
Lowenstern, J. B., Barth, G. A., Childs, J. R., Donnelly-Nolan, J. M., Ramsey, D. W., Robinson, J. E., Phillips, R. L., Starrat, S. W., and Barron, J. A., 2002, Bathymetric and seismic-reflection profiles hint at the origins of Medicine Lake, CA (USA) [abs.]: Eos Transactions of the American Geophysical Union, v. 83, no. 47 (Supplement), p. F1461.
Ramsey, D. W., Bacon, C. R., and Dutton, D. R., 2002, Geologic panoramas of the walls of Crater Lake caldera, Oregon [abs.]: Eos Transactions of the American Geophysical Union, v. 83, no. 47 (Supplement), p. F1462.
Ramsey, D. W., and Donnelly-Nolan, J. M., 2002, Digital geologic map database of Medicine Lake volcano, California [abs.]: Geological Society of America Abstracts with Programs, v. 34, no. 5, p. A-86.
Donnelly-Nolan, J. M., and Ramsey, D. W., 2001, Geologic mapping of Medicine Lake volcano, CA, USA [abs.]: Eos Transactions of the American Geophysical Union, v. 82, no. 47 (Supplement), p. F1318-F1319.
Ramsey, D. W., Robinson, J. E., Dartnell, P., Bacon, C. R., Gardner, J. V., Mayer, L. A., Buktenica, M. W., 2001, Crater Lake Revealed: Using GIS to Visualize and Analyze Postcaldera Volcanoes Beneath Crater Lake, Oregon [abs.]: Eos Transactions of the American Geophysical Union, v. 82, no. 47 (Supplement), p. F1377.
Blakely, R. J., Christiansen, R. L., Ramsey, D. W., Smith, J. G., and Donnelly- Nolan, J. M., 2000, A three-dimensional view of Mt. Shasta, California, based on inversion of gravity anomalies [abs.]: Geological Society of America Abstracts with Programs, v. 32, no. 7, p. A-430.
Gardner, J. V., Mayer, L. A., Buktenica, M. W., Bacon, C. R., Dartnell, P., Hellequin, L., Ramsey, D. W., and Robinson, J. E., 2000, High-resolution multibeam mapping of Crater Lake, Oregon [abs]: Eos Transactions of the American Geophysical Union, v. 81, no. 48 (Supplement), p. F1332.
Ramsey, D. W., Robinson, J. E., Christiansen, R. L., Smith, J. G., and Blakely, R. J., 2000, Digital Shasta: Applying GIS Technology to Volcano Hazards [abs.]: Eos Transactions of the American Geophysical Union, v. 81, no. 48 (Supplement), p. F1332.
Howell, D. G., Brabb, E. E., Pike, R. J., Ramsey, D. W., Roberts S., and Hillhouse, J. W., 1999, Landslide hazard information and the decision-making process [abs.]: Geological Society of America Abstracts with Programs, v. 31, no. 6, p. A-64.
Pike, R. J., and others (including Ramsey, D. W.), 1998, Slope failure and shoreline retreat around San Francisco Bay in the El Niño winter of 1997-98 [abs.]: Eos Transactions of the American Geophysical Union, v. 79, no. 45 (Supplement), p. F292.
Ramsey, D. W., and Godt, J. W., 1998, Damaging landslides in the San Francisco Bay region 1997-98: Building the better El Niño damage database [abs.]: Eos Transactions of the American Geophysical Union, v. 79, no. 45 (Supplement), p. F293.
The San Francisco Bay Landslide Team (28 authors including Ramsey, D. W.), 1998, Landslide Hazard Susceptibility maps for the San Francisco Bay region: Tools for Emergency Planning During the 1997-98 El Niño [abs.]: Eos Transactions of the American Geophysical Union, v. 79, no. 45 (Supplement), p. F292.
Ramsey, D. W., and Onasch, C. M., 1997, Fluid history of two cratonic fault zones in the eastern midcontinent [abs.]: Geological Society of America Abstracts with Programs, v. 29, no. 7, p. A-416.
Furze, Andrew J.; Bard, Joseph A.; Robinson, Joel; Ramsey, David W.; Kuntz, Mel A.; Rowley, Peter D.; MacLeod, Norman S.
Furze, A.J., Bard, J.A., Robinson, J.E., Ramsey, D.W., Kuntz, M.A., Rowley, P.D., MacLoed, N.S., 2017, Database for Geologic Maps of Pyroclastic-Flow and Related Deposits of the 1980 Eruptions of Mount St. Helens, Washington: U.S. Geological Survey Data Series 1054, https://doi.org/10.3133/ds1054.
Bard, Joseph A.; Ramsey, David W.
Bard, J.A., Ramsey, D.W., 2016, High-resolution digital elevation dataset for Newberry Volcano and vicinity, Oregon, based on lidar survey of August-September, 2010 and bathymetric survey of June, 2001: U.S. Geological Survey data release, doi:10.5066/F7J38QNV.
Bard, Joseph A.; Ramsey, David W.; Wolfe, Edward W.; Ulrich, George E.; Newhall, Christopher G.; Moore, Richard B.; Bailey, Norman G.; Holm, Richard F.
Barron, Andrew D.; Ramsey, David W.; Smith, James G.
Barron, A.D., Ramsey, D.W., and Smith, J.G., 2014, Database for the geologic map of upper Eocene to Holocene volcanic and related rocks in the Cascade Range, Washington: U.S. Geological Survey Data Series 842, http://dx.doi.org/10.3133/ds842.
Bard, Joseph A.; Ramsey, David W.; MacLeod, Norman S.; Sherrod, David R.; Chitwood, Lawrence A.; Jensen, Robert A.
Database for the Geologic Map of Newberry Volcano, Deschutes, Klamath, and Lake Counties, Oregon; 2013; DS; 771; Bard, Joseph A.; Ramsey, David W.; MacLeod, Norman S.; Sherrod, David R.; Chitwood, Lawrence A.; Jensen, Robert A.
McIntire, Jacqueline; Ramsey, David W.; Thoms, Evan; Waitt, Richard B.; Beget, James E.
Database for volcanic processes and geology of Augustine Volcano, Alaska; 2012; DS; 677; McIntire, Jacqueline ; Ramsey, David W.; Thoms, Evan ; Waitt, Richard B.; Beget, James E.
Donnelly-Nolan, Julie M.; Stovall, Wendy K.; Ramsey, David W.; Ewert, John W.; Jensen, Robert A.
Newberry Volcano—Central Oregon's Sleeping Giant; 2011; FS; 2011-3145; Donnelly-Nolan, Julie M. ; Stovall, Wendy K. ; Ramsey, David W. ; Ewert, John W. ; Jensen, Robert A.

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Derived from Norman French estoupail, 'conclusion'. "'Estoppe', commeth of the French word estoupe, from whence the English word stopped: and it is called estoppel or conclusion, because a man's owne act or acceptance stoppeth or closeth up his mouth to allege or plead the truth" 2 Co Litt 352a; "a bung or cork by which you stopped something coming out" McIlkenny v Chief Constable of the West Midlands  2 All ER 227, 235. A principle established by the English courts of equity that it would be inequitable for a person to go back on his word, or to act inconsistently with his previous representations or deeds, whether these are express or implied, when another has acted thereon to his detriment. Estoppel may even prevent a person from stating that something is true and, therefore, should be now acted on with a legal consequence, if that statement is inconsistent with a previously accepted statement. "Estoppel is when one is concluded and forbidden in law to speak against his own act or deed, yea, though it be to say the truth" Termes de la Ley. (Although the principle of estoppel came from the Normans – McIlkenny v Chief Constable of the West Midlands, supra. – there is no directly related principle in modern French law). "A man shall not be allowed to blow hot and cold – to affirm at one time and deny at another $ndash; making a claim on those whom he has deluded to their disadvantage, and founding that claim on the very matters of the delusion. Such a principle has its basis in common sense and common justice, and whether it is called 'estoppel', or by any other name, it is one which the Courts of law have in modern times most usefully adopted." Cave v Mills (1862) 7 Hurl & N 913, 927-8, 158 Eng Rep 740. "It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results – certain penalties or legal forfeiture – afterwards by their own acts or with their own consent, enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties." Hughes v Metropolitan Ry Co  2 App Cas 439, 448 (HL). In summary, estoppel "is a principle of justice and of equity. It comes to this when a man, by his words or conduct, has lead another to believe that he may safely act on the faith of them – and the other does act on them – he will not be allowed to go back on what he has said or done when it would be unjust or inequitable for him to do so." Lord Denning, The Discipline of Law (1979), p. 223.
Estoppel takes many forms, but may be classified broadly as: (A) 'promissory estoppel'—which arises when a person makes a promise not to insist on, or enforce, his legal rights against another (or his clear and unequivocal representations lead another to believe that those rights will not be insisted on) and, on the strength of that promise or representation, the other party clearly, and reasonably, alters his legal position or takes a particular course of action based on the promise or representation (Combe v Combe  2 KB 215, 220,  1 All ER 767, 770 (CA)); The American Law Institute, Restatement Second, Contracts § 90 (1981)). (B) Proprietary estoppel, or 'estoppel by encouragement and acquiescence'—which arises when a person takes a certain action that is to his detriment or prejudice, such as taking possession of property to carry out work therein, and another clearly accepts or acquiesces in that action. For example, "if a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and without objection by him, lays out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation." Ramsden v Dyson (1866) LR 1 HL 129, 170 (HL)(Taylors Fashion Ltd v Liverpool Victoria Trustees Co Ltd  QB 133,  1 All ER 897, 915; 31 C.J.S., Estoppel and Waiver, § 106). Also, a lessee may be estopped from denying the validity of his lease because of a defect after he has taken occupation, or taken some action in connection with the lease (National Westminster Bank Ltd v Hart  QB 773,  2 All ER 177 (CA); Anno: 84 ALR2d 920: Lease—Invalidity—Estoppel of Lessee). Similarly, if an owner of land invites another to spend money on that land, giving the impression that an interest in that land will be given over to the person expending the money equity "will require the owner by appropriate conveyance to fulfil his obligation … [or if for some reason a conveyance cannot be made effectively] a court of equity may declare that the person who has expended the money is entitled to an equitable charge or lien for the amount so expended." Chalmers v Pardoe  1 WLR 670, 681-2. (Duggan v. Wetmore, 137 CCA 486, 221 F 916 (Tenn 1915)). (C) 'legal estoppel', estoppel as a 'matter of fact'—which arises when there is a material fact that induces an action. (D) 'equitable estoppel' or 'estoppel in pais'—when it is not based on a deed or contract but on an action or conduct, or representation ('estoppel by representation'), or when a person remains silent ('estoppel by silence or by inaction'), especially when a person observes an action by another that is based clearly on a misapprehension or a mistaken understanding by that other party (Brown v. New York Life Ins. Co., 59 F Supp 724 (D NJ 1943); Jones v. Sunset Oil Co., 118 Cal.2d 668, 258 P.2d 510, 514 (1953); Pascoe v Turner  1 WLR 431; Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce Int'l Bank Ltd  QB 84,  3 All ER 577, 584 (CA); Spruce Falls Power & Paper Co v OPEIU Local 166 (1988) 1 LAC (4th) 418, 433 (Ont. Can)). A similar form of estoppel may be referred to as estoppel 'by convention', where the convention for dealing between two parties clearly indicates that one party will allow a reasonable period of time to elapse before relying on his rights (Republic 0f India v India Steamship Co Ltd (No 2)  AC 878). Equitable and promissory estoppel (also called 'quasi-estoppel') are akin and may be distinguished from estoppel based on a deed, or a record or judgment of a court. Estoppel by deed may arise when a seller does not have title at the time he purports to convey a property, but if he subsequently acquires title to that property, he would be estopped from then denying that title and transferring it as originally represented. Estoppel by a court record or judgment ('estoppel by record') is the oldest form of this doctrine and is enshrined in the maxims interest reipublicæ est ut sit finis litium – 'it is in the public interest that there be an end to litigation' – and nemo debet bis vexari pro eadem causa – 'no one should be in jeopardy twice on the same ground'. 'Equitable estoppel' may also be used generically to refer to any form of estoppel that arises as a principle of Equity, rather than from a court record.
In the US, estoppel may be categorized also as (i) 'estoppel by record'; (ii) 'estoppel by deed' or 'estoppel in writing'; or (iii) 'estoppel in pais' or 'equitable estoppel'. (i) covers matters arising from the records of the courts and applies to such matters as probate and crime; (ii) is the denial of a formal intent of a deed or such aspects as recitals and powers to convey; and (iii) covers the 'quasi', 'promissory' and 'proprietary' estoppel referred to above; all of which arise "from the conduct of a party, using that word in its broadest meaning as including his spoken or written words, his positive acts, and his silence or negative omission to do anything [Drexel v. Berney, 122 US 241, 30 L Ed 1222 (1887))" Pomeroy's Equity Jurisprudence (5th ed. 1941), § 802 (Blue Ridge Realty Co. v. Williamson, 247 SC 112, 145 SE.2d 927 (1965)). (The term 'promissory estoppel' is to be preferred to 'equitable estoppel' because the remedy is itself equitable).
Examples of the application of the doctrine of estoppel to real property are: (i) reduction of rent during war time because a large part of a block of flats was empty – when the war was over the landlord could not insist on the lost rent for the period of the war, because previously he had already collected the reduced sum (Central London Property Trust Ltd v High Trees House Ltd  1 KB 130); (ii) an agent executing an agreement on behalf of his principal without proper authority, or authority in writing – the principal cannot lead a third party to believe that the agent was authorized, or accept a benefit of the transaction, and then seek to deny the agreement (Corporation of America v. Harris, 5 Cal App.2d 459, 43 P.2d 307 (1935)); (iii) receipt from a debtor of a lesser sum than owed – the creditor clearly indicated that he accepts this as satisfactory and the debtor acts on that understanding – the creditor subsequently is bound by that settlement (D & C Builders Ltd v Rees  2 QB 617,  3 All ER 837 (CA); Anno: 44 ALR2d 1114: Building Contract—Satisfactory Work, §§ 8, 9).
Estoppel may be distinguished from ratification as the former induces a prejudicial action by another and is an equitable right, whereas ratification occurs after the event and is a matter of law. Estoppel is closely allied to waiver. However, it may be distinguished from waiver as the latter generally refers to an intentional surrender or relinquishment of a known right for a consideration, whereas estoppel creates a restraint or inhibition on an inconsistent action (Globe Indemnity Co. v. Cohen, 106 F.2d 687, 691-2 (3d Cir. 1939)). cf. misrepresentation, quasi-contract, waiver. See also dedication, estoppel by deed, estoppel certificate, licence by estoppel(Eng), mistaken improver, ostensible authority, recital, tenancy by estoppel, vested right.
Anno: 18 ALR5th 307: Promissory Estoppel—Lenders.
3 Corbin on Contracts (Rev. Ed. 1995), Ch. 8 'The Doctrine of Promissory Estoppel'.
3 Pomeroy's Equity Jurisprudence (5th ed. 1941), §§ 801-821.
28 Am.Jur.2d., Estoppel and Waiver, §§ 1-196.
31 Cor.Jur.Sec., Estoppel and Waiver, §§ 1-220.
T. Villiers and S. Wilkins. The Law of Estoppel, Variation and Waiver (1997), Ch. 8 'Estoppel by Representation', Ch. 10 'Estoppel by Deed', Ch. 11 'Proprietary Estoppel'.
E. Cooke, Elizabeth (ed.). Modern Studies in Property Law. (2001), Ch. 5 'Estoppel and Reliance'.
S.H. Goo. Sourcebook on Land Law (1994), Ch 3 'Proprietary Estoppel'.
Cheshire, Fifoot & Furmston's Law of Contract (13th ed. 1996), pp. 101-109, 316-317, 485-486.
Anson's Law of Contract (27th ed. 1998), pp. 100-108.
16 Halsbury's Laws of England, Estoppel (4th ed. Reissue), paras. 951-1091.
Snell's Equity (29th ed. 1990), Ch. 5. 'Equitable Estoppel'.
M. Pawlowski. The Doctrine of Proprietary Estoppel (1996).
Spencer-Bower and Turner: Estoppel by Representation (3d ed. 1995).