W.D. Wash. Discusses Split in Holding that Real Estate Settlement Procedures Act Does Not Create A Private Cause of Action

Per Birkholm v. Washington Mut. Bank, F.A., --- F. Supp. 2d ---, 2006 WL 2104296 (W.D. Wash. July 26, 2006):

Under 12 U.S.C. § 2609(c)(1)(A), a provision of the Real Estate Settlement Procedures Act (RESPA), a loan servicer that establishes an escrow account is required to provide the borrower with a statement outlining the estimated taxes, insurance premiums, and other charges expected to be paid during the first 12 months after an escrow account is established. Under 12 U.S.C. § 2609(c)(1)(B), the loan servicer must provide this statement at closing of the mortgage loan, or no later than 45 days after the loan servicer establishes the escrow account. The loan servicer is required to provide annual statements to the borrower thereafter. 12 U.S.C. § 2609(c)(2). If the loan servicer fails to comply with the requirements of 12 U.S.C. § 2609(c), 12 U.S.C. 2609(d) authorizes the Secretary of Housing and Urban Development, see 12 U.S.C. § 2602(6), to assess penalties.

12 U.S.C. § 2609 does not by its terms provide for a private right of action. The Circuits are split on whether Congress intended to vest borrowers with a private cause of action for violation of Section 2609. See State of La. v. Litton Mortgage Co. ., 50 F.3d 1298, 1301-02 (5th Cir.1995), and Allison v. Liberty Sav. & Loan Ass'n of Detroit, 695 F.2d 1086, 1091 (7th Cir.1982) (no implied private cause of action for violation of Section 2609); Vega v. First Federal Sav. & Loan Assoc., 622 F.2d 918, 925, n. 8 (6th Cir.1980)(Congress intended to create private cause of action for violation of Section 2609).

To determine whether a statute provides for an implied private right of action, the court looks to whether Congress intended to create the private remedy asserted. Suter v. Artist M., 503 U.S. 347, 364 (1992). The burden of demonstrating Congressional intent to create an implied right of action lies with the party asserting an implied right of action. Id. at 363-64. To determine whether Congress intended to create a private remedy, the Supreme Court, in Cort v. Ash, 422 U.S. 66 (1975), set forth a four-part test for determining whether an implied private right of action exists: (1) whether the plaintiff is a member of a class for whose especial benefit the statute was enacted; (2) whether there is any explicit or implicit indication of congressional intent to create or deny a private remedy; (3) whether a private remedy would be consistent with the underlying purposes of the legislative scheme; and (4) whether the cause of action is one traditionally relegated to state law. Id. at 78.

. . .

A review of the statutory scheme shows that Congress did not intend to provide a private right of action for violation of 12 U.S.C. § 2609. The court should grant Washington Mutual's motion for judgment on the pleadings, and should dismiss the Birkholms' claim under 12 U.S.C. § 2609.


Fourth Circuit Notes Split Re Whether Denial of "State Action Antitrust Immunity" Satisfies Collateral Order Requirements

Per South Carolina State Bd. of Dentistry v. Federal Trade Commission, 455 F.3d 436 (4th Cir. May 1, 2006):

The Federal Trade Commission ("FTC") brought this action against the South Carolina State Board of Dentistry ("Board"), alleging that the Board engaged in unfair competition by promulgating an emergency regulation that prevented oral hygienists from performing certain services in school settings unless a dentist had first examined a student and prescribed a course of treatment. The Board countered, inter alia, that it was immune from suit under the "state action antitrust immunity" doctrine of Parker v. Brown, 317 U.S. 341 (1943). After the FTC refused to grant that protection, the Board brought this interlocutory appeal, arguing that the denial of Parker protection falls within the narrow class of "collateral orders" that may be appealed notwithstanding their lack of finality. We disagree, and dismiss the appeal for lack of jurisdiction.

. . .

The Court has . . . reserved "collateral order" status only for orders that meet three "stringent" conditions: an order must "[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." Will v. Hallock, --- U.S. ----, ----, 126 S.Ct. 952, 957 (2006). See also Digital Equip. Corp., 511 U.S. at 867. "If the order fails to satisfy any one of these requirements, it is not an immediately appealable collateral order." Carefirst of Md., Inc. v. Carefirst Urgent Care Ctr., 305 F.3d 253, 258 (4th Cir.2002).

There is no dispute that the denial of Parker protection satisfies the first collateral order requirement; a decision that the Board is not entitled to such protection "conclusively determines" the question of whether the Board is subject to the Federal Trade Commission Act restrictions on anticompetitive conduct. The circuits are divided, however, as to whether the denial of Parker protection satisfies the final two requirements. Two circuits have said that it does. See Martin v. Memorial Hosp., 86 F.3d 1391, 1394-97 (5th Cir.1996); Commuter Transp. Sys. v. Hillsborough Cty. Aviation Auth., 801 F.2d 1286, 1289 (11th Cir.1986). Two others have suggested the same in dicta. See We, Inc. v. City of Philadelphia, 174 F.3d 322, 329 (3rd Cir.1999); Segni v. Commercial Office of Spain, 816 F.2d 344, 346 (7th Cir.1987). The Sixth Circuit, however, has held that the denial of Parker protection fails to meet either of the final two collateral order requirements. See Huron Valley Hosp., Inc. v. City of Pontiac, 792 F.2d 563, 567 (6th Cir.1986). Because we too conclude that the Parker analysis is neither "completely separate from the merits" nor "effectively unreviewable" after trial, we join the Sixth Circuit in holding that the denial of Parker protection is not an immediately appealable collateral order.


Fifth Circuit Discusses Circuit Split Re "Extreme Cruelty"

Per Wilmore v. Gonzales, 455 F.3d 524 (5th Cir. July 5, 2006):

The Ninth and Tenth Circuits have addressed the question of whether the determination of "extreme cruelty" is discretionary and are split. The Ninth Circuit concluded that it had jurisdiction because the determination of "extreme cruelty" was a reviewable legal and factual one. Hernandez v. Ashcroft, 345 F.3d 824, 833-35 (9th Cir.2003). On the other hand, the Tenth Circuit held that the determination of "extreme cruelty" was discretionary, and, thus, it did not have jurisdiction to consider a cancellation of removal claim under § 1229b(b)(2). Perales-Cumpean v. Gonzales, 429 F.3d 977 (10th Cir.2005). We find the Tenth Circuit analysis more persuasive. The Tenth Circuit . . . explain[ed] that the definition "requires consideration of many factors." Id. at 984.

In the instant case, the IJ [immigration judge] would have to determine whether the "pattern of mental and psychological abuse" alleged by Wilmore amounted to extreme cruelty. Although the extreme cruelty definition provides some guidance in making this determination, it certainly does not remove the discretion afforded by Congress. Indeed, as the Tenth Circuit stated, "[c]onsiderable discretion also is provided by the definition's phrases 'includes, but is not limited to' and 'may . . . be acts of violence under certain circumstances.' " Id. Accordingly, based on the definition of "extreme cruelty" in the federal regulations, the statutory language of § 1252(a)(2)(B), our precedent, and the persuasive reasoning of the Tenth Circuit, we conclude that a determination of "extreme cruelty" under § 1229b(b)(2)(A)(i)(I) is discretionary. As such, § 1252(a)(2)(B) precludes our review.


Ninth Circuit Notes Split Re Exclusivity of Tucker Act Jurisdiction

Per Marceau v. Blackfeet Housing Authority, 455 F.3d 974 (9th Cir. July 21, 2006):

The Tucker Act vests the Court of Federal Claims with exclusive jurisdiction for contract claims against the United States. See 28 U.S.C. § 1491(a)(1). The Little Tucker Act carves out a minor exception, creating concurrent jurisdiction in the district courts for contract claims against the United States not exceeding $10,000. See 28 U.S.C. § 1346(a)(2). [G]iven that Plaintiffs seek monetary damages in excess of $10,000, the District Court correctly determined that it was without jurisdiction to hear Plaintiffs' contract claims against HUD. [FN6]

FN6. Contrary to Plaintiffs' assertions, where a case falls under Tucker Act jurisdiction, federal question jurisdiction cannot serve as an alternative basis for jurisdiction. Plaintiffs cite a Seventh Circuit case holding that federal question jurisdiction can be an alternative basis for jurisdiction, W. Sec. Co. v. Derwinski, 937 F.2d 1276, 1280-81 (7th Cir.1991), and indeed the circuits appear to be divided on this question. Compare C.H. Sanders Co. v. BHAP Hous. Dev. Fund Co., 903 F.2d 114, 118- 20 (2d Cir.1990) (finding Tucker Act jurisdiction not exclusive, where there is federal question jurisdiction and a waiver of sovereign immunity), with A.E. Finley & Assoc. v. United States, 898 F.2d 1165, 1167 (6th Cir.1990) ("[I]f an action rests within the exclusive jurisdiction of the Claims Court under the Tucker Act ... the district court does not have jurisdiction regardless of other possible statutory bases."). The Ninth Circuit has not squarely confronted the particular arguments raised in those two cases, but has generally held that Tucker Act jurisdiction is exclusive. See, e.g., Skokomish Indian Tribe v. United States, 410 F.3d 506, 511 (9th Cir.2005) (en banc); M-S-R Pub. Power Agency v. Bonneville Power Admin., 297 F.3d 833, 840 (9th Cir.2002); Wilkins v. United States, 279 F.3d 782, 785 (9th Cir.2002). We see no reason to disturb that conclusion here. Because Tucker Act jurisdiction is exclusive, except where the Little Tucker Act provides concurrent district court jurisdiction, such claims are properly reviewed in the court of claims, not in the federal district courts.


CIT Notes Split Re Whether Claims or Entire Case Is Transferrable under 28 U.S.C. § 1631

Per Butler v. U.S., --- F.Supp.2d ----, 2006 WL 1815976 (Court of International Trade Jun. 30, 2006):

In Retamal, the Court of Appeals has squarely held that the Court of International Trade lacks subject matter jurisdiction to review the revocation of a customs broker's license for failure to timely file a triennial status report. Retamal v. U.S. Customs & Border Protection, Dep't of Homeland Security, 439 F.3d 1372, 1375-76 (Fed.Cir.2006). Plaintiff contends that this action therefore should be transferred to the U.S. District Court for the District of Massachusetts, pursuant to 28 U.S.C. § 1631.

The statute invoked by Plaintiff provides, in pertinent part: § 1631. Transfer to cure want of jurisdiction Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed ..., and the action ... shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred. 28 U.S.C. § 1631 (emphasis added). [FN12]

FN12. . . . The Courts of Appeals disagree as to whether § 1631 authorizes the transfer of individual claims, or only the transfer of an entire action. See 17 James Wm. Moore et al., Moore's Federal Practice § 111.51[2] (3d ed.1999). Similarly, there is a split in the circuits as to whether actions may be transferred under § 1631 to cure defects other than subject matter jurisdiction (such as a lack of personal jurisdiction over the defendant, or improper venue). See id. § 111.51[1],[3]; Moore's Federal Practice, Judicial Code ¶ 1631.2. However, neither controversy is relevant here.


D. Conn. Notes Split Re Scope of Permissible Changes Made to a Deposition Transcript Under FRCP 30(e)

Per North Trade U.S., Inc. v. Guinness Bass Import Co., Not Reported in F. Supp. 2d, 2006 WL 2263885 (D. Conn. Aug. 7, 2006):

Federal Rule of Civil Procedure 30(e) states: If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. Fed. R. Civ. Proc. 30(e). The circuits are split as to the scope of permissible changes that may be made to a deposition transcript under Rule 30(e). 7 Moore's Federal Practice § 30.60[3] (Matthew Bender 3d ed.2006). Some courts have held that the only changes permitted by Rule 30(e) are non-substantive in nature, such as the correction of typographical or spelling errors. See, e.g., Burns v. Bd. of County Comm'rs, 330 F.3d 1275, 1282 (10th Cir.2003); Greenway v. Int'l Paper Co., 144 F.R.D. 322, 325 (W.D .La.1992). Other courts, including the Second Circuit, have allowed deponents to make any change, in form or substance, to their deposition transcript. See Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir.1997) (affirming District Court's finding that deponent was not entitled to have his altered answers replace the original ones, but rather that his changed answers became a part of the record generated during discovery).


Fifth Circuit Notes Split Re Curtilage Determination

Per Mack v. City of Abilene, --- F.3d ----, 2006 WL 2361694 (Cir. Aug. 16, 2006):

The warrantless search of the Cadillac might be constitutional if the Cadillac was parked within the apartment's curtilage. Appellees had a valid warrant to search Appellant's apartment. The question before us is whether the Cadillac was a part of the apartment's curtilage and therefore subject to search pursuant to the warrant, assuming the warrant's scope could validly include the apartment's curtilage. "[T]he curtilage is the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life." Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (internal quotation marks omitted). We conclude that the Cadillac was not within the apartment's curtilage.

The circuits are split on the appropriate standard of review on a curtilage determination. [FN3]

FN3. See United States v. Breza, 308 F.3d 430, 435 (4th Cir.2002) (holding that the question of "curtilage is ultimately a legal one, and thus is subject to de novo review, while antecedent factual findings are reviewed for clear error"); United States v. Diehl, 276 F.3d 32, 38 (1st Cir.2002) (same); United States v. Johnson, 256 F.3d 895, 911-913 (9th Cir.2001) (same); Bleavins v. Bartels, 422 F.3d 445, 449 (7th Cir.2005) (stating that, in the context of a civil case evaluating a curtilage question, the grant of summary judgment is reviewed de novo); Daughenbaugh v. City of Tiffin, 150 F.3d 594, 597 (6th Cir.1998) (same). But see United States v. Benish, 5 F.3d 20, 24 (3d Cir.1993) ("[T]he question of the extent of curtilage is essentially factual and therefore we review only for clear error.") (internal quotation marks and citation omitted); United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993) (same).


N.D. Iowa Applies Recent Supreme Court Case that Resolved Split Re What Types of Actions Qualify as “Adverse Employment Actions”

Per Podkovich v. Glazer’s Distributors of Iowa, Inc., --- F. Supp. 2d ---, 2006 WL 2326930 (N.D. Iowa Aug. 10, 2006):

Before discussing the parties' shifting burdens under McDonnell Douglas once a prima facie case has been adequately demonstrated, a brief discussion of the second element [that employee suffered an adverse employment action] of the prima facie case in Title VII cases is warranted in light of a very recent United States Supreme Court opinion--Burlington Northern & Sante Fe Railway Co. v. White, 126 S.Ct. 2405 (2006). In White, the Court clarified the scope of Title VII's anti-retaliation provision and resolved a circuit split over what types of actions qualify as "adverse employment actions." See generally Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, (2006). Prior to White, some circuits applied the same standard for retaliation that they applied to a substantive discrimination offense, holding that the disputed action must "resul[t] in an adverse effect on the 'terms, conditions, or benefits' of employment." See id. at 2410 (citing White v. Burlington N. & Sante Fe Ry. Co., 364 F.3d 789, 795 (6th Cir.2004); Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir.2001); Robinson v. Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.1997)). Other circuits, such as the Fifth and the Eighth Circuits, adopted an even more restrictive approach employing an "ultimate employment decisio[n] standard, which limited actionable retaliatory conduct to acts " 'such as hiring, granting leave, discharging, promoting, and compensating.' " Id. (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997); Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir.1997)). In contrast, the Seventh and D.C. Circuits required the plaintiff to show that the " 'employer's challenged action would have been material to a reasonable employee,' " which essentially means that it would have likely " 'dissuaded a reasonable worker from making or supporting a charge of discrimination.' " Id. at 2410-11. (quoting Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 662 (7th Cir.2005) (citing Rochon v. Gonzales, 438 F.3d 1211, 1217-1218 (D.C.Cir.2006)). Finally, the Ninth Circuit, in accord with EEOC guidance, required the plaintiff to merely establish " 'adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.' " Id. at 2411 (quoting Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir.2000). The majority opinion, authored by Justice Breyer, agreed with the formulation employed by the Seventh and D.C. Circuits. Thus, in the Court's view, the anti-retaliation provision, unlike the substantive provision of Title VII, is not limited to discriminatory actions that affect the terms and conditions of employment. Rather, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, "which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.' " Rochon, 438 F.3d at 1219 (quoting Washington, 420 F.3d at 662.

Consequently, based on the Court's guidance in White, Podkovich does not have to demonstrate a link between the challenged retaliatory action and the terms, conditions or status of employment. Rather, pursuant to the Court's pronouncement in White, she can rely on retaliatory acts and/or harms that extend beyond workplace-related or employment-related retaliatory acts and harm. Id. at 2414 ("The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm”).


Tenth Circuit Discusses Split Re Role of Jury in Pickering Balancing Test in Retaliatory Discharge Cases

Per Weaver v. Chavez, --- F.3d ---, 2006 WL 2294840 (10th Cir. Aug. 10, 2006):

It is well-settled that the balancing assessment [of an employee’s interest in commenting on public matters against the interest of a state in retaliatory discharge cases] must be performed by the court, not the jury. See Gardetto v. Mason, 100 F.3d 803, 811 (10th Cir.1996); see also Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). (noting that "[t]he inquiry into the protected status of speech is one of law, not fact"). The circuits are split, however, as to whether the jury has any role in the Pickering balancing, especially where the application of the balancing might turn on disputed questions of fact. See Lytle v. City of Haysville, 138 F.3d 857, 864 n. 1 (10th Cir.1998) (recognizing the circuit split but not reaching the issue because appellant failed to allege that any underlying factual disputes affected the Pickering balancing). Compare Johnson v. Ganim, 342 F.3d 105, 114-15 (2d Cir.2003) (stating "factual disputes pertaining to the potential for disruption and defendants' motivations in suspending and terminating plaintiff" are issues which "would properly be regarded as a question of fact, to be answered by the jury prior to the district court's application of the Pickering balancing test") (quotations omitted), and Belk v. City of Eldon, 228 F.3d 872, 881 (8th Cir.2000) ("Although the balancing of interests is a matter of law for the district court, the underlying factual questions should be submitted to the jury, generally through interrogatories or a special verdict form."), with Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir.1987) (holding "the advisory jury had no role to play" in resolving the question of "constitutional law for the court").


D.N.J. Notes Split Re Whether Showing of Actual Innocence Is Grounds for Equitable Tolling of AEDPA's Statute of Limitations Period

In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court vacated a judgment of the Eighth Circuit which held that a district court has no authority to stay a mixed petition to allow the petitioner to present his unexhausted claims to the state court and then to return to federal court. Id. at 277. Noting that "the filing of a petition for habeas corpus in federal court does not toll the statute of limitations," id. at 275, the Court observed that

"If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review. For example, if the District Court in this case had dismissed the petition because it contained unexhausted claims, AEDPA's 1-year statute of limitations would have barred Rhines from returning to federal court after exhausting the previously unexhausted claims in state court."

Id. at 275.

The Rhines Court held that a district court has the authority to issue stays only where a stay would be compatible with AEDPA's purposes. Id. at 276. The Court determined that "it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition." Id. at 278.

In light of * * * Rhines * * *, this Court holds that the statute of limitations was not equitably tolled while Petitioner's first § 2254 petition was pending before this Court.

In his Traverse, Petitioner appears to argue that equitable tolling is warranted because he is actually innocent of the crime of attempted murder. He bases his claim of actual innocence on discovery exhibits provided by the state during his criminal trial which call into question the testimony of witness Thomas MacPhee. The Third Circuit has not yet determined whether a showing of actual innocence is grounds for equitable tolling, and the circuits are split. See Souter v. Jones, 395 F.3d 577, 599 (6th Cir.2005) ("equitable tolling of the one-year limitations period based on a credible showing of actual innocence is appropriate"); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (same); contra David v. Hall, 318 F.3d 343, 347 (1st Cir.2003); Flanders v. Graves, 299 F.3d 974 (8th Cir.2002).


S.D. Ind. Comments on Split Re Whether Copyright Statute Makes Registration a Jurisdictional Prerequisite to Filing Suit

Per Woollen, Molzan and Partners, Inc. v. Indianapolis-Marion County Public Library, Slip Copy, 2006 WL 2135819 (S.D. Ind. Jul 28, 2006):

Under 17 U.S.C. § 411(a), no person can begin an action for infringement of a copyright until "registration of the copyright claim has been made" or, alternatively, until the registration has been refused and the applicant serves a copy of its complaint on the Register of the Copyrights. 17 U.S.C. § 411(a). The Library argues that this statute requires this court to dismiss Woollen Molzan's infringement claim. (Def.'s Mot. Dismiss 2). Either the court lacked jurisdiction to hear the complaint, or, in the alternative, Woollen Molzan did not have a claim to bring until the copyright was registered. (Id.) As the Library correctly noted, if this court dismissed the infringement claim for lack of subject matter jurisdiction, then it would have no basis for acquiring supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367. See Rifkin v. Bear Stearns & Co., 248 F.3d 628, 634 (7th Cir.2001).

The jurisdictional issue regarding the requirements of § 411(a) is not a simple one. First, the circuits have divided between the "registration approach," in which a plaintiff must await the Copyright Office's actual registration before filing suit, and the "application approach," in which the plaintiff has a cause of action upon filing a copyright application, along with the appropriate fee and deposit of material to be protected. See La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1202-04 (10th Cir.2005) (describing, in relatively neutral terms, the arguments in support of each approach); see also 17 U .S.C. 410(d) (defining the effective date of copyright registration as "the day on which an application, deposit, and fee ... have all been received in the Copyright Office"). The Seventh Circuit has not yet addressed this issue directly, although one decision suggests that this circuit may favor the "application approach." See Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 631 (7th Cir.2003) (noting that "[a]though a copyright no longer need be registered with the Copyright Office to be valid, an application for registration must be filed before the copyright can be sued upon"). The comment in Chicago Board of Education, however, was made in passing, directed at the plaintiff's claim that the registered copyright was invalid. Id.

Secondly, the parties in this case argue over whether § 411(a) is a condition precedent to filing a lawsuit or a requirement for jurisdiction. If the former, then the court would still have jurisdiction even if the precondition was not met and the plaintiff could not prevail. See, e.g., Batesville Servs., Inc. v. Funeral Depot, Inc., 2004 WL 2750253 at *3 (S.D.Ind. Nov. 10, 2004) (discussing the difference between a condition precedent and jurisdictional requirement in a challenge to the validity of a copyright). But see Foraste v. Brown Univ., 248 F.Supp.2d 71, 76 (D.R.I.2003) (holding that copyright registration is a condition precedent and a jurisdictional requirement). The Seventh Circuit has not yet addressed this issue squarely, either.


Second Circuit Discusses Split Re Choice of Law in CERCLA/Successor Liability Context

Per New York v. National Service Industries, Inc., 2006 WL 2171526 (2nd Cir. Aug. 3, 2006):

The choice-of-law question is a complicated one that has led our sister circuits to reach different answers. See, e.g., N. Shore Gas Co. v. Salomon, Inc., 152 F.3d 642, 650 (7th Cir.1998) (noting the circuit split).

On one hand, in United States v. Davis, 261 F.3d 1 (1st Cir.2001), for example, the First Circuit found "no evidence that application of state law to the facts of this case would frustrate any federal objective," and held that federal common law therefore would absorb state law to determine the scope of successor liability under CERCLA. Id. at 54. … see also Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1501 (11th Cir.1996) (finding that "[a]bsent a showing that state partnership law is inadequate to achieve the goals of CERCLA, we discern no imperative need to develop a general body of federal common law to decide cases such as this" (internal quotation marks omitted)); City Mgmt. Corp. v. U.S. Chem. Co., 43 F.3d 244, 253 (6th Cir.1994) (explaining that state law governs the question of corporate successor liability under CERCLA); Atchison, Topeka & Santa Fe Ry. Co. v. Brown & Bryant, Inc., 159 F.3d 358, 363 (9th Cir.1998) (noting that "[a]lthough often invoked in this context, there has been no real explanation of the need for uniformity in this particular area of successor liability--especially since state law will in many other instances determine whom the EPA may or may not look to for compensation"); Anspec Co., Inc. v. Johnson Controls, Inc., 922 F.2d 1240, 1248 (6th Cir.1991) (Kennedy, J. concurring) (arguing that corporations are creatures of state law and therefore state law should determine their liability absent a conflict with federal law).

On the other hand, in a split decision, the Third Circuit recently reaffirmed its pre-Bestfoods precedent that successor liability for purposes of CERCLA should be determined by a uniform, national rule. See United States v. Gen. Battery, 423 F.3d 294 (3d Cir.2005)….[It] concluded that the Supreme Court's approach in Bestfoods supported the use of a national rule based on traditional common law. Id. at 300. In Bestfoods, the Third Circuit found, the Supreme Court had applied "fundamental" and "hornbook" principles of corporate liability, not the law of any particular state. Id. As the Third Circuit explained, "the Supreme Court declined to apply Michigan law and instead looked to the general 'hornbook' rule of veil-piercing." Id. Moreover, the General Battery court rejected the reasoning of the First and Ninth Circuits, which, as noted, found no conflict between CERCLA's purposes and the use of state law. Id. at 301-02, 303. By contrast, the Third Circuit concluded that "[a] more uniform and predictable federal liability standard corresponds with specific CERCLA objectives by encouraging settlements and facilitating a more liquid market in corporate and 'brownfield' assets." Id. at 302. Similarly, the Fourth Circuit concluded that a national rule is required by "[t]he national interest in the uniform enforcement of CERCLA and the same interest in preventing evasion by a responsible party." United States v. Carolina Transformer Co., 978 F.2d 832, 837 (4th Cir.1992).

As we observed in NSI II, the Kimbell Foods factors appear to favor the absorption (non-displacement) of state law. See NSI II, 352 F.3d at 687 n. 1. Although CERCLA is a federal statute for which there is presumably an interest in uniform application, where there is no conflict between federal policy and the application of state law, "a mere federal interest in uniformity is insufficient to justify displacing state law in favor of a federal common law rule." Betkoski II, 112 F.3d at 91 (citation omitted).…Nevertheless, because the State's claim fails under either New York law or traditional common-law principles, we need not, and thus do not, decide whether CERCLA requires the displacement of state law in this instance.


E.D. Mich. Notes Split in Ruling on Level of Constitutional Protection Afforded Arrestees

Per Berishaj v. City of Warren, Not Reported in F. Supp. 2d, 2006 WL 2069440 (E.D. Mich. Jul 26, 2006):

...[T]he initial inquiry is whether Plaintiffs' [§ 1983] claims [relating to their arrest at a party that grew into a "near riot"] are properly assessed under the Fourth or Fourteenth Amendment. Plaintiffs argue their claim under the Fourth Amendment. The Officers do not address the claims at all, focusing only on the alleged use of force at the Royalty House [the site of the party]. But, the City of Warren defends its policy regarding the use of the restraint chair under the Fourteenth Amendment. There is a colorable question as to whether Preka, Timothy and Djeto Berishaj's claims arise under the Fourteenth, rather than the Fourth, Amendment. One could argue that they became pretrial detainees once they arrived at the station.
There is a split of authority among the circuits regarding whether and when the Fourth or Fourteenth Amendment applies during the period of custody after arrest but before trial. The distinction is important when claims of excessive force are leveled, because the Fourteenth Amendment imposes a different (and perhaps higher) burden of proof on the claimant. Under the Fourth Amendment, a claimant need only show that the officers' alleged actions were not objectively reasonable. Phelps v. Coy, 286 F.3d 295, 299 (6th Cir.2002).


The question is ... when an arrestee becomes a pretrial detainee protected by the Fourteenth, rather than the Fourth, Amendment. The standard for making this decision in the Sixth Circuit is ambiguous in situations such as those presented here. The Sixth Circuit holds that the Fourth Amendment applies when, at the time of the alleged use of force, the claimant "was a free person ... and the use of force occurred in the course of an arrest or other seizure." Phelps, 286 F.3d at 299. The Fourth Amendment, therefore, clearly applies during the period that the claimant is in the custody of the arresting officers. Id at 300. See also McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir.1998) ("[T]he seizure that occurs when a person is arrested continues throughout the time the person remains in the custody of the arresting officers."). It is not clear whether the Fourth Amendment continues to apply after arresting officers turn an arrestee over to colleagues for processing at the jail and excessive force is allegedly used during the latter period of custody. That is the situation presented in this case, and the Court did not find any cases in this or other circuits which further define "arresting officer" or which have the same or a similar factual scenario.


S.D. Ohio Bankruptcy Court Discusses Split Re Standard of Proving Fraudulent Transfer under Section 548(a)(1)(A) of Bankruptcy Code

Per In re Canyon Systems Corp., Not Reported in B.R., 343 B.R. 615 (Bankr. S.D. Ohio Mar. 31, 2006):

Courts are split as to the standard of proof a bankruptcy trustee must meet in an action to avoid a transfer under § 548(a)(1)(A) of the Code. Compare Silagy v. Gagnon (In re Gabor), 280 B.R. 149, 155 (Bankr.N.D.Ohio 2002) (trustee must meet preponderance-of-the-evidence standard in actual fraudulent transfer action); Dev. Specialists, Inc. v. Hamilton Bank, N.A. (In re Model Imperial, Inc.), 250 B.R. 776, 790-91 (Bankr.S.D.Fla.2000) (same) and Breeden v. L.I. Bridge Fund, LLC (In re Bennett Funding Group, Inc.), 232 B.R. 565, 570 (Bankr.N.D.N.Y.1999) (same) with Morse Operations, Inc. v. Goodway Graphics of Virginia, Inc. (In re Lease-A-Fleet, Inc.), 155 B.R. 666, 674 (Bankr.E.D.Pa.1993) (clear-and-convincing standard applies in § 548(a)(1)(A) cases) and Bumgardner v. Ross (In re Ste. Jan-Marie, Inc.), 151 B.R. 984, 987 (Bankr.S.D.Fla.1993) (same). See also Taylor v. Rupp (In re Taylor), 133 F.3d 1336, 1338 (10th Cir.1998) (noting the split of authority); David B. Young, Preferences and Fraudulent Transfers, 876 PLI/Comm 667, 803-04 (2005) (“The strong current of opinion now holds that actual intent under 11 U.S.C. § 548(a)(1)(A) need only be shown by a preponderance of the evidence···· A minority of courts, however, have continued to adhere to the clear and convincing standard in Section 548(a)(1)(A) cases.”). Here, it is not necessary to determine whether the preponderance or clear-and-convincing evidentiary burden applies in the context of a § 548(a)(1)(A) case because, as discussed above, the Trustee has established the existence of a Ponzi scheme, and thus actual intent to defraud, by clear and convincing evidence.


Second Circuit Creates Split Re Whether Appellate Challenge to Sentencing Guideline Calculation Becomes Moot Once Appellant Completes Prison Sentence

Per United States v. Blackburn, - - - F.3d - - - (2d Cir. July 26, 2006):

Blackburn...[argued] on appeal that the district court erred in imposing a four-level sentencing enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G" or "Guidelines") § 2K2.1(b)(5). Because Blackburn has completed his prison sentence and we are convinced that a favorable decision on appeal would yield no "effectual relief," United States v. Quattrone, 402 F.3d 304, 308 (2d Cir. 2005), we conclude that the case is moot and dismiss it for lack of jurisdiction without reaching the merits of Blackburn’s claim.


Several of our sister circuits have held that a challenge to a sentence by a criminal defendant who has completed his prison term but remains subject to supervised release is not moot because the possibility of the district court’s reducing the term of supervised release on remand gives the defendant-appellant a continuing stake in the outcome. See, e.g., United States v. Larson, 417 F.3d 741, 748 (7th Cir. 2005); United States v. Castro-Rocha, 323 F.3d 846, 847-48 (10th Cir. 2003); United States v. McCoy, 313 F.3d 561, 564 (D.C. Cir. 2002) (en banc); United States v. Verdin, 243 F.3d 1174, 1178-79 (9th Cir. 2000). The record before us, however, reveals that the possibility of the district court’s imposing a reduced term of supervised release on remand is so remote and speculative that any decision on the merits of Blackburn’s claim would amount to a "declar[ation of] principles or rules of law which cannot affect the matter in issue in the case before [us]," Mills v. Green, 159 U.S. 651, 653 (1895), and would thus run afoul of Article III’s restriction of our power.


Under the post-Booker sentencing regime, district courts have a "continuing duty to consider [the Guidelines], along with the other factors listed in [18 U.S.C. § ] 3553(a)," United States v. Crosby, 397 F.3d 103, 111 (2d Cir. 2005) (internal quotation marks omitted). The Courts of Appeals likewise have a continuing duty to review the district courts’ application of sentencing enhancements. See United States v. Argudelo, 414 F.3d 345, 347 (2d Cir. 2005). The sentencing issue raised here is an important one, over which there is a split of authority among the circuits.

The importance of the issue, however, and the temptation to decide it can have no bearing on our assessment of its justiciability.

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