S.D. Fla. Notes Split Re Whether Secretarial Work Is Compensable as Part of Attorneys' Fees Awards

Per For Play Limited v. Bow to Stern Maintenance, Inc., Slip Copy, 2006 WL 3662339 (S.D. Fla. Nov. 06, 2006):

Pursuant to the lodestar method, the Court must multiply the number of hours that Plaintiff's counsel reasonably worked by the prevailing market rate for his work. . . .

After the Court has calculated the lodestar, "the [C]ourt has the opportunity to adjust the lodestar to account for other considerations that have not yet figured in the computation, the most important being the relation of the results obtained to the work done." . . .

Defendant . . . objects to Plaintiff's request for fees for: 2.6 hours of Mr. Casano's work which Defendant contends was "secretarial work . . . ," "in excess of 6.7 hours . . . ," of which allegedly "is secretarial time . . . ," id. at 7; and additional "hours which were purely administrative in nature . . . ," id. As a preliminary matter, the Court must determine whether Plaintiff would be entitled to any compensation for clerical or secretarial work that Mr. Casano performed. There is a split of authority regarding whether clerical or secretarial work is compensable. Compare, e.g., Walker v. United States Dep't of Housing and Urban Development, 99 F.3d 761, 770 (5th Cir.1996) ("Clerical work, however, should be compensated at a different rate from legal work."), with, e.g., Surge v. Massanari, 155 F.Supp.2d 1301, 1307 (M.D.Ala.2001) ("requests for . . . non-compensable clerical tasks [are] inappropriate").

Consistent with what appears to be the great majority of courts within the Eleventh Circuit that have considered that issue, this Court concludes that Plaintiff is not entitled to any reimbursement for clerical or secretarial tasks that Plaintiff's counsel performed.

S.D. Fla. Notes Split Re Whether Laches Is a Viable Defense Where the Copyright Holder Files His Case within the Statutory Period

Per Oravec v. Sunny Isles Luxury Ventures L.C., --- F.Supp.2d ----, 2006 WL 3734155 (S.D. Fla. 2006):

Defendants next argue that Oravec's claims are barred by the doctrine of laches. Laches is an equitable doctrine that prevents unfairness to a defendant owing to plaintiff's unreasonable delay in filing suit. See Venus Lines Agency v. CVG America, Inc., 234 F.3d 1225, 1230 (11th Cir.2000). To establish a laches defense, Defendants must show that (1) Oravec delayed in asserting his claims, (2) his delay was not excusable, and (3) Defendants were unduly prejudiced by the delay. Id. Here, Defendants argue that Oravec's twenty month delay between the time he discovered the alleged infringement and the time he filed suit meets the standard for barring his claims under laches. By the time Oravec filed suit, construction of the Trump Palace was all but completed Defendants assert that Oravec has no excuse for his delay and that had they known about Oravec's allegations they "could have considered alternative options as to the project and perhaps obviate[d] the claim." Dev. Def. Br. at 36..*24 The statute of limitations on a copyright claim is three years. 17 U.S.C. § 407(b). Oravec filed his lawsuit within two years.

There is a split among the circuits about whether laches is a viable defense where the copyright holder files his case within the statutory period. Compare Danjaq LLC v. Sony Corporation, 263 F.3d 942, 954 (9th Cir.2001) ("If a defendant can show harm from the delay, the court may, in extraordinary circumstances, defeat the claim based on laches, though the claim is within the analogous limitations period") (citation omitted) with Lyons Partnership v. Morris Costumes, Inc., 243 F.3d 789, 797 (4th Cir.2001) ("in connection with copyright claims, separation of powers principles dictate that an equitable timeliness rule adopted by courts cannot bar claims that are brought within the legislatively prescribed statute of limitations"). The Eleventh Circuit has yet to address the subject. That question need not be answered here, however, because Defendants have not shown inexcusable delay nor undue prejudice.

E.D. Tenn. Bankruptcy Court Notes and Weighs in on Split of Authority Re Timing of Bankruptcy Code's Credit Counselling Requirement

Per In re Moore, --- B.R. ----, 2006 WL 3692640 (Bkrtcy.E.D.Tenn. Dec. 14, 2006):

In Mr. Moore's bankruptcy case, the chapter 13 trustee Gwendolyn M. Kerney filed a motion to dismiss on August 23, 2006, and a brief in support thereof on October 2, 2006, asserting that Mr. Moore is ineligible to be a debtor under 11 U.S.C. § 109(h)(1) because he received his credit counseling briefing on the same day that he filed for bankruptcy relief. In Ms. Seabolt's case, the United States trustee filed a similar motion to dismiss on September 8, 2006, and subsequently filed a statement adopting and incorporating the brief filed by Ms. Kerney in Mr. Moore's case. The position of both the chapter 13 trustee and the United States trustee is that 11 U.S.C. § 109(h)(1) requires an individual to obtain credit counseling on any day within 180 days prior to, but not including, the day upon which the bankruptcy petition is filed and that because the debtors herein obtained their briefings on the same day as their bankruptcy filings, albeit prior to the filings, their cases must be dismissed.

Resolution of the motions to dismiss turns on the interpretation of 11 U.S.C. § 109(h)(1), which was enacted by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), Pub.L. No. 109-8, § 106, 119 Stat. 23, 37. This provision states in part:

[A]n individual may not be a debtor under this title unless such individual has, during the 180-day period preceding the date of filing of the petition by such individual, received from an approved nonprofit budget and credit counseling agency described in section 111(a) an individual or group briefing (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis.

Not surprisingly, there is already a split of authority on the issue at hand. The trustees urge this court to adopt the decision by Bankruptcy Judge Richard Stair Jr. of this district, In re Cole, 347 B.R. 70 (Bankr.E.D.Tenn.2006), along with those of the court in In re Murphy, 342 B.R. 671 (Bankr.D.D.C.2006), and In re Mills, 341 B.R. 106 (Bankr.D.D.C.2006), both authored by the same judge. The debtors' position, on the other hand, rests upon the holdings of In re Warren, 339 B.R. 475 (Bankr.E.D.Ark.2006); In re Hudson, ___ B.R. ___, 2006 WL 2689699 (Bankr.D.Md. Sept. 16, 2006); In re Spears, B.R. ___, 2006 WL 3017364 (Bankr.E.D. Wis. June 19, 2006), and In re Toccaline, No. 06-20218, 2006 WL 2081517 (Bankr.D.Conn. July 17, 2006).

. . .

After careful consideration, this court finds itself in agreement with Hudson, Warren and Spears and respectfully disagrees with Cole, Murphy and Mills. . . .

[T]he "180-day" phrase must be read in context with the clause that proceeds it: "an individual may not be a debtor under this title unless such individual has, during the 180-day ...." This language is instructive because it reminds us that this is an eligibility provision, just like other eligibility requirements in § 109 of the Bankruptcy Code, defining who is eligible for bankruptcy relief. Eligibility is determined as of the filing of the petition. See, e.g., In re Global Ocean Carriers Ltd, 251 B.R. 31, 37 (Bankr.D.Del.2000) ("The test for eligibility is as of the date the bankruptcy petition is filed."). . . .

Thus, considered in its context of § 109's eligibility requirements, the more likely plain meaning of "date" as used in § 109(h)(1) appears to be the less common, but still often used definition, that of moment or specific time. . . . Similarly, the now infamous "hanging paragraph" at the end of 11 U.S.C. § 1325(a) refers to debts "incurred within the 910-day [period] preceding the date of the filing of the petition." . . .

Furthermore, although this court believes that the appropriate reading of § 109(h)(1) is ascertainable from both its language and context, the sparse legislative history to the provision also supports the determination that rather than mandating an artificial time frame period during which credit counseling must occur, Congress' focus in § 109(h)(1) was on imposing a new eligibility requirement which must be satisfied at the bankruptcy filing deadline.

11th Circuit Weighs in on Split Re Whether Railroads May Challenge State Valuation Methodologies under 4-R Act

This appeal presents a question about state taxation of railroad properties that was expressly left open by the Supreme Court of the United States, has since divided the federal appellate courts, and involves the traditional balance of federal and state power. We are asked to decide whether section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act or the Act), 49 U.S.C. § 11501, allows a railroad to challenge the methodology by which a state determines the true market value of railroad property for ad valorem tax purposes. The 4-R Act provides an exception to the general rule of the Tax Injunction Act that federal district courts will not interfere with matters of state taxation. Compare id. with 28 U.S.C. § 1341. This appeal turns on the breadth of that exception.
. . .

Three of our sister circuits, following Burlington Northern v. Oklahoma, have split on whether railroads may challenge state valuation methodologies. The Fourth Circuit, on the one hand, has concluded that the 4-R Act does not permit a railroad to challenge the valuation methodology of a state. That circuit concluded that the text of the Act is ambiguous, and the court was "not inclined to disregard" the general policy of noninterference in matters of state taxation contained in the Tax Injunction Act "where § 306 does not plainly authorize such an exception." Chesapeake W. Ry. v. Forst, 938 F.2d 528, 531 (4th Cir.1991); accord Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir.1993). The Second and Ninth Circuits, on the other hand, have repudiated Chesapeake Western and held that railroads may challenge valuation methodologies. In Burlington Northern Railroad v. Department of Revenue, the Ninth Circuit explained that section 11501(c) of the 4-R Act provides that state law governs the burden of proof in challenges to assessed value and true market value. 23 F.3d 239, 241 (9th Cir.1994). Because determinations of property value by public officials in Washington may be defeated by "clear, cogent and convincing evidence," the court reasoned that state valuation methodologies may likewise be defeated by clear, cogent, and convincing evidence. Id. In Consolidated Rail Corp. v. Town of Hyde Park, the Second Circuit held that, at least where states use a unique method to appraise railroads, the 4-R Act allows railroads to challenge valuation methodology. 47 F.3d 473, 482 (2d Cir.1995).

. . .

[W]e are persuaded that the Fourth Circuit correctly interpreted the 4-R Act as being subject to a clear statement rule. It is a well-settled principle of statutory interpretation that a statute will not be construed to burden states in the exercise of their traditional powers unless it clearly states its intent to do so. " 'If Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.' "

Eleventh Circuit Mentions Split Re Whether Deadline of FRCP 54(d)(1) Is Jurisdictional

Per Corwin v. Walt Disney Co. 468 F.3d 1329 (11th Cir. Nov 02, 2006):

The Federal Rules of Civil Procedure provide that after costs are taxed by the clerk, an objection may be made only "on motion served within 5 days thereafter." Fed.R.Civ.P. 54(d)(1). Although this deadline is not considered jurisdictional in our circuit, [FN14] it is still fully within the discretion of the district court to decline to review an untimely objection to costs.

FN14. There is a split among the circuits as to whether this deadline is jurisdictional, but we have found it not to be so. See Baum v. United States, 432 F.2d 85, 86 (5th Cir.1970) (per curiam).

First Circuit Notes Split Re "Unlawful or Unprivileged" Element of Generic Burglary under Taylor

Per U.S. v. Bennett, 469 F.3d 46 (1st Cir. Nov. 21, 2006)

Defendant-appellant William J. Bennett ("Bennett") pled guilty to possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He now appeals the sentencing enhancements applied pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), on the basis that (1) the predicate conviction for breaking and entering a steel storage shed does not constitute a violent felony . . . .

. . .

Under the ACCA, a defendant who violates § 922(g)(1) and has three previous convictions for violent felonies or serious drug offenses is subject to a minimum sentence of 180 months. 18 U.S.C. § 924(e)(1). The definition of "violent felony" includes, inter alia, the crime of burglary, but the term "burglary" itself is not defined in the statute. Id. § 922(e)(2).

The Supreme Court, however, addressed the meaning of burglary as used in the ACCA in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Court first rejected both the view that the definition depends on the label adopted by the state of conviction and the idea that Congress meant to include only the common-law definition of burglary as "breaking and entering of a dwelling at night, with intent to commit a felony." Id. at 592, 110 S.Ct. 2143. Rather, the Court concluded that

"Congress meant by 'burglary' the generic sense in which the term is now used in the criminal codes of most states. Although the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime."

. . .

Bennett [] contends that his conviction for breaking and entering a steel storage shed does not meet Taylor's definition because the statute under which he was convicted did not require an "unlawful or unprivileged" entry, and the record before the court did not indicate that his entry was "unlawful or unprivileged." Bennett did not raise this issue below and therefore we review for plain error. United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). We have not addressed the contours of the "unlawful or unprivileged" element of generic burglary under Taylor, and there exists a circuit split on the issue. Compare United States v. Bowden, 975 F.2d 1080, 1084-85 (4th Cir.1992) (finding that "the entry of a man who enters without breaking with intent to commit a felony or larceny is neither lawful nor privileged, so it must be within Taylor "), with United States v. Maness, 23 F.3d 1006, 1008-09 (6th Cir.1994) (finding that the same statute at issue in Bowden "does not satisfy Taylor's definition of generic burglary" because intent to commit a crime is a "separate and distinct element[ ]" from unlawful or unprivileged entry). In light of conflicting case law, any error that might have been committed by the district court was not "obvious," and therefore not plain error. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ("At a minimum, court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.").

S.D.N.Y. Notes Split within Second Circuit Re Whether Cash Balance Plans Are Discriminatory under ERISA

Per In re Citigroup Pension Plan Erisa Litigation, --- F.Supp.2d ----, 2006 WL 3613691 (S.D.N.Y. Dec. 12, 2006):

Under a cash balance pension plan, an employer guarantees each participant a retirement benefit premised on a hypothetical account that has been established in each participant's name. These accounts grow over time according to a predetermined formula, driven by two components: (1) the employer's hypothetical "contributions," expressed either in dollars or a specified percentage of the participant's current yearly salary (making it a "career average" formula); and (2) hypothetical earnings expressed as interest credits, which can either increase at a fixed rate or be tied to an extrinsic index, such as 30-year Treasury bonds. Employer contributions and interest credits are usually allocated to the accounts annually. Each year participants receive a balance statement so they can review the value of their pension.

. . .

ERISA's anti-age discrimination provision for defined benefit plans states that "[a] defined-benefit plan shall be treated as not satisfying the requirements of this paragraph if, under the plan, an employee's benefit accrual is ceased, or the rate of an employee's benefit accrual is reduced, because of the attainment of any age." Presently, there is a split within this Circuit as to whether cash balance plans violate this provision. Two district courts have held that cash balance plans are age discriminatory, [FN66] and two have held they are not. [FN67] For reasons set forth in Part IV.D below, I join in finding that cash balance plans unlawfully discriminate on the basis of age.


FN66. See Hirt, 441 F.Supp.2d 516; Laurent v. PriceWaterhouseCoopers, LLP, 448 F.Supp.2d 537 (S.D.N.Y.2006). Hirt is now pending before the Second Circuit Court of Appeals (notice of appeal filed Oct. 13, 2006).

FN67. See In re J.P. Morgan Chase Cash Balance Litig., No. 06 Civ. 732, 2006 WL 3063424 (S.D.N.Y. Oct. 30, 2006) ("J.P.Morgan" ); Richards v. Fleet Boston, 427 F.Supp.2d 150 (D.Conn.2006).

Eleventh Circuit Notes Circuit Split Re: Duty of Government to Interview Defendant After Submission of Written Proffer

Per United States v. Milkintas, ---F.3d----, 2006 WL 3431875 (11th Cir. Nov. 30, 2006):

FN4. We note there is a circuit split regarding whether, once a defendant submits a written proffer and offers to provide additional information if needed, the government then has a duty to interview the defendant. Compare United States v. Stephenson, 452 F.3d 1173, 1182 (10th Cir.2006) ("[T]he onus is on the defendant to come forward with all information he has concerning his relevant conduct."); with United States v. Brack, 188 F.3d 748, 763 (7th Cir.1999) (holding a defendant's truthful written statement combined with the defendant's offer to submit to a safety valve interview satisfied the safety valve disclosure requirement, but noting "a defendant cannot satisfy the disclosure requirement simply by notifying the court of his willingness to submit to a safety valve interview"). This conflict does not affect this case, however, because Milkintas did not submit a written proffer to the Government.

N.D. Ill. Discusses Circuit Split Re Selective Waiver

Per Lawrence E. Jaffe Pension Plan v. Household Intern., Inc., Slip Copy, 2006 WL 3524016 (N.D.Ill. Dec. 6, 2006):

Plaintiffs argue that Defendants cannot produce privileged material to a governmental agency for their own benefit and then still assert the privilege here. In other words, Plaintiffs ask the court to reject the "selective" or "limited" waiver theory, which provides that a party may disclose documents to a government agency without waiving the privilege as to any other party. As discussed below, the circuit courts are split as to the viability and application of this theory. Some have found that selective waiver is always permissible; some have found that selective waiver is never permissible; and others have found that selective waiver is permissible when the government has signed a confidentiality agreement. The court finds this last approach most persuasive in this case.

1. Courts Allowing Selective Waiver

The Eighth Circuit has adopted the theory of selective waiver in the context of the attorney-client privilege. [See] Diversified Indus.., Inc. v. Meredith, 572 F.2d 596 (8th Cir.1977). . . .

2. Courts Rejecting Selective Waiver

Many other courts have rejected the concept of selective waiver of the attorney-client privilege, finding that "[v]oluntary cooperation with government investigations may be a laudable activity, but it is hard to understand how such conduct improves the attorney-client relationship." Permian Corp. v. United States, 665 F.2d 1214, 1220-21 (D.C.Cir.1981). These courts explain that "[t]he client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or to invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit." Id. at 1221. See also United States v. Massachusetts Institute of Tech., 129 F.3d 681, 686 (1st Cir.1997) ("Anyone who chooses to disclose a privileged document to a third party, or does so pursuant to a prior agreement or understanding, has an incentive to do so, whether for gain or to avoid disadvantage. It would be perfectly possible to carve out some of those disclosures and say that, although the disclosure itself is not necessary to foster attorney-client communications, neither does it forfeit the privilege. With rare exceptions, courts have been unwilling to start down this path--which has no logical terminus--and we join in this reluctance."); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1425 (3d Cir.1991) ( "[S]elective waiver does not serve the purpose of encouraging full disclosure to one's attorney in order to obtain informed legal assistance; it merely encourages voluntary disclosure to government agencies, thereby extending the privilege beyond its intended purpose."); In re Martin Marietta Corp., 856 F.2d 619, 623-24 (4th Cir.1988) ("The Fourth Circuit has not embraced the concept of limited waiver of the attorney-client privilege.")

The Sixth Circuit has similarly joined the First, Third, Fourth, and D.C. Circuits in rejecting selective waiver. [See] In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th Cir.2002) . . . .

The Seventh Circuit has not yet determined whether it endorses the concept of selective waiver, though courts in this district have not viewed it with particular favor.

N.D. Cal. Notes Split Re Whether a Prisoner Must Prove That He Suffered More Than a De Minimis Injury in Order to Prevail on an Excessive Force Claim

Per Henderson v. City and County of San Francisco, Slip Copy, 2006 WL 3507944 (N.D.Cal. Dec 01, 2006):

[N]ot every malevolent touch by a prison guard gives rise to a federal cause of action; indeed, the Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force.

The circuit courts are currently split over whether a prisoner must prove that he suffered more than a de minimis injury in order to prevail on an excessive force claim. Compare Brooks v. Kyler, 204 F3d 102, 108 (3d Cir2000) ("[A]bsence of objective proof of non-de minimis injury does not alone warrant dismissal.") and Moore v. Holbrook, 2 F3d 697, 700 (6th Cir1993) ("No actual injury needs to be proven to state a viable Eighth Amendment claim.") with Gomez v. Chandler, 163 F3d 921, 924 (5th Cir1999) ("[T]o support an Eighth Amendment excessive force claim a prisoner must have suffered from the excessive force a more than de minimis injury.") and Norman v. Taylor, 25 F3d 1259, 1263 (4th Cir1994) (en banc) (plaintiff must show more than de minimis injury), cert. denied, 513 U.S. 1114 (1995). Although the Ninth Circuit has not addressed the issue, it has strongly suggested that a prisoner need only prove that the use of physical force was more than de minimis. See Oliver v. Keller, 289 F3d 623, 628 (9th Cir2002) (clarifying that in embracing physical injury standard under 42 USC § 1997e(e) adopted by several circuits, Ninth Circuit does not subscribe to reasoning of some of those circuits that 8th Amendment claims require that "the injury must be more than de minimis;" the standard used for 8th Amendment excessive force claims only examines whether the use of physical force is more than de minimis); see also Schwenk, 204 F3d at 1196-97 n6 (prisoner need not prove any injury "where the assault is one, such as attempted rape, that lacks any legitimate penological justification and is 'offensive to human dignity' ").

E.D. Wis. Discusses Split on How to Construe "Directly and Independently of All Other Causes" Language in an ERISA Accidental Death Policy

Per Pedersen v. Union Labor Life Ins. Co., Slip Copy, 2006 WL 3474183 (E.D. Wis. 2006):

Central to the instant motion is whether, in an ERISA accidental death policy, language limiting coverage to injury caused "an accident, directly and independently of all other causes" is ambiguous. The Seventh Circuit took up this issue, albeit indirectly, in Mers v. Marriott Int'l Group Acc. Death and Dismemberment Plan, 144 F.3d 1014 (7th Cir.1998). In that case, a policyholder had died from a heart attack during physical exertion after a blood vessel burst in his brain. Id. at 1017. The policy, which fell under ERISA, defined "injury" as "bodily injury caused by an accident ... and resulting directly and independently of all other causes." Id. at 1018. As this limiting language was in the policy but not in the summary plan description ("SPD"), one issue before the court was whether the insurer was estopped by the terms of the SPD from denying coverage for a death having multiple causes. In finding that the insurer was not thus estopped, the court found that the "directly and independently" language in the policy clarified, rather than contradicted, the SPD. Id. at 1024. The court's rationale implied that the "directly and independently" language was clear, as no discussion was given to any potential ambiguity in interpreting that language.

Other circuits have more squarely interpreted accidental death benefits provisions that limit recovery to injuries caused by accident "directly and independently of all other causes." In the Sixth and Tenth Circuits, such language in an ERISA policy is considered unambiguous and thus precludes recovery unless two criteria are met: (1) the loss results directly from accidental bodily injury; and (2) the loss results independently of all other causes. Pirkheim v. First Unum Life Ins., 229 F.3d 1008, 1010 (10th Cir.2000); Criss v. Hartford Acc. & Indem. Co., No. 91-2092, 1992 WL 113370, at *5-6 (6th Cir. May 28, 1992). The Fourth and Eleventh Circuits, concerned that such a strict interpretation would require the claimant to be in perfect health at the time of injury before his policy would benefit him, have adopted a "middle ground" test under which "a pre-existing infirmity or disease is not to be considered as a cause unless it substantially contributed to the disability or loss." [FN4] Adkins v. Reliance Standard Life Ins. Co., 917 F.2d 794 (4th Cir.1990); Dixon v. Life Ins. Co. of N. Am., 389 F.3d 1179, 1184 (11th Cir.2004). In other words, recovery is barred if a pre-existing condition substantially contributed to the injury.


FN4. The fact that federal circuits have split on how to construe "directly and independently of all other causes" in an accidental death benefits policy does not itself create any meaningful ambiguity (such that the court would then need to consider the parties' reasonable
expectations). The Fourth and Eleventh Circuits adopted the middle-ground test on public policy grounds, not because they found such language ambiguous. Adkins, 917 F.2d at 797; Dixon, 389 F.3d at 1184. The Sixth and Tenth Circuits, as explained above, do not find such language ambiguous.

Seventh Circuit Notes Split Re Jurisdiction to Review BIA Determination to Use Streamlined Procedures

Gutnik v. Gonzales, --- F.3d ----, 2006 WL 3423144 (7th Cir. 2006):

Although the issue was discussed in Jarad v. Gonzales, 461 F.3d 867 (7th Cir.2006), we have yet to definitively determine whether we even have jurisdiction to review a BIA decision to commit an appeal to streamlined procedures. Other circuits have split on this question. Compare Kambolli v. Gonzales, 449 F.3d 454, 460-65 (2d Cir.2006) (no jurisdiction), and Tsegay v. Ashcroft, 386 F.3d 1347, 1353-58 (10th Cir.2004) (same), and Ngure v. Ashcroft, 367 F.3d 975, 983 (8th Cir.2004) (same), with Smriko, 387 F.3d at 290-95 (remanding case for three-member BIA panel review), and Chong Shin Chen v. Ashcroft, 378 F.3d 1081, 1086-88 (9th Cir.2004) (same), and Haoud v. Ashcroft, 350 F.3d 201, 206-08 (1st Cir.2003) (same).

E.D.Va. Considers Differing Circuit Interpretations of Leading Case on Availability of Default Judgment in Multiple-Defendant Cases

Per Jefferson v. Briner, Inc., --- F.Supp.2d ----, 2006 WL 3209957 (E.D.Va. Nov. 6, 2006):

This case presents the unusual situation where a plaintiff seeks a default judgment against one defendant, and yet the remaining, answering defendants have been exonerated from all liability. Stated more precisely, where multiple defendants are alleged to be jointly liable and the answering defendants have prevailed, must the action against the defaulting defendant be dismissed (and entry of default judgment refused) so as to prevent inconsistent judgments among the joint defendants? See Frow v. De La Vega, 82 U.S. (15 Wall.) 552, 554, 21 L.Ed. 60 (1872). Frow is the leading case on the subject of the availability of default judgment in actions involving multiple defendants. . . .

. . .Here, this court acted in accordance with Frowby waiting to address the issue of default judgment against [non-answering defendant Mortgage Store Financial, Inc.] MSF until the court first "proceed[ed] with the cause upon the answers of the other defendants," Briner and Carteret. Id. at 554. Accordingly, whether default judgment against MSF is appropriate is now ripe for decision.

. . .

Although many jurisdictions have narrowly construed Frow to bar entry of a default judgment against one of several defendants only if the theory for recovery is one of true joint liability, [FN6] the Fourth Circuit has interpreted Frow more broadly. The Fourth Circuit last revisited Frow almost forty years ago in United States ex rel. R.F. Hudson v. Peerless Ins. Co., 374 F.2d 942 (4th Cir.1967), an action prosecuted against a contractor and a contractor's surety. In Hudson, the contractor answered the complaint and denied liability. Id. at 943. However, the surety failed to respond and the district court entered default judgment against it. Id. In holding the default judgment against the surety to be premature, the court of appeals held:

Although Frow was a case of joint liability, we think the procedure established for multiple defendants by Rule 54(b) is strikingly similar and applicable not only to situations of joint liability but to those where the liability is joint and/or several. Id. at 944 (emphasis added).

The court went on to note that even when co-defendants are alleged to be "closely interrelated," and one of the multiple defendants "establishes that plaintiff has no cause of action or present right of recovery, the defense generally inures also to the benefit of a defaulting defendant[.]" Id. at 945 (citations omitted). Thus, the Fourth Circuit has concluded that Frow applies not only to defendants who are alleged to be jointly liable, but also to those defendants thought to be jointly and/or severally liable, or who are otherwise closely interrelated. [FN7]

FN6. See, e.g., McMillian/McMillian, Inc. v. Monticello Ins. Co., 116 F.3d 319 (8th Cir.1997) (Frownot extended to situation where the co-defendants shared closely related interests but were not truly jointly liable); Whelan v. Abell, 953 F.2d 663, 674 (D.C.Cir.1992) ("... in cases involving multiple defendants, a default order that is inconsistent with a judgment on the merits must be set aside only when liability is truly joint--that is, when the theory of recovery requires that all defendants be found liable if any one of them is liable--and when the relief sought can only be effective if judgment is granted against all.") (citation omitted), amended at No. 90-7016, 1992 U.S.App. LEXIS 6180 (D.C.Cir.), cert. denied sub. nom., Toomey v. Whelan, 506 U.S. 906, 113 S.Ct. 300, 121 L.Ed.2d 223 (1992); In re Uranium Antitrust Litig., 617 F.2d 1248, 1256-58 (7th Cir.1980) (Frow rule not applicable when defendants are alleged to be jointly and severally liable); Int'l Controls Corp. v. Vesco, 535 F.2d 742, 746-47 n. 4 (2d Cir.1976) ("... at most, Frowcontrols in situations where the liability of one defendant necessarily depends upon the liability of the others"), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 758 (1978).

FN7. Other Circuit Courts of Appeals have taken a similar stance to that of the Fourth Circuit when interpreting Frow. See In re: First T.D. & Inv., Inc., 253 F.3d 520, 532 (9th Cir.2001) (extending Frowto certain circumstances where defendants have closely related defenses or are otherwise similarly situated, even if not jointly and severally liable, so as to avoid inconsistent judgments against multiple defendants); Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir.2001) (citing Hudson and holding that it would " 'incongruous' and 'unfair' to allow some defendants to prevail, while not providing the same benefit to similarly situated defendants.") (citation omitted and emphasis added); Wilcox v. Raintree Inns of Am., Inc., No. 94-1050, 1996 U.S.App. LEXIS 1501, at *7-8 (10th Cir. Feb. 2, 1996) (unpublished) (extending Frow to cases where multiple defendants have "closely related" defenses); Gulf Coast Fans v. Midwest Elecs. Imp., 740 F.2d 1499, 1512 (11th Cir.1984) (holding that "when defendants are similarly situated, but not jointly liable, judgment should not be entered against a defaulting defendant if the other defendant prevails on the merits" to be "sound policy") (emphasis added). Although the Circuits are split on the extent to which Frow applies, see supra footnote 6, the underlying theme of Frow is indisputable: logically inconsistent judgments among multiple defendants are to be avoided, and a finding of inconsistency will preclude the entry of default judgment against a non-appearing defendant.