2d Circuit Notes Split Re Applicable Standard of Review for Equitable Tolling Determinations Under AEDPA of Questions Other Than Findings of Fact

Per Belot v. Burge, 490 F.3d 201 (2d Cir.(N.Y.) Jun 20, 2007) (NO. 05-6875-PR):

We have held that "in rare and exceptional circumstances a petitioner may invoke the courts' power to equitably toll the limitations period." Doe v. Menefee, 391 F.3d 147, 159 (2d Cir.2004) (quotation marks omitted). "To qualify for such treatment, the petitioner must establish that extraordinary circumstances prevented him from filing his petition on time, and that he acted with reasonable diligence throughout the period he seeks to toll." Id. (quotation marks omitted).

A threshold question is what standard of review we should apply when reviewing a district court's denial of equitable tolling as to a petition under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. In Baldayaque v. United States, 338 F.3d 145 (2d Cir.2003), we reviewed the district court's finding of fact for clear error and applied de novo review to the district court's analysis of a controlling legal question. Id. at 151. That case, however, did not involve our circumstances, where the district court denied equitable tolling not as a matter of law, but as an exercise of its discretion. We decide this as a matter of first impression in our Circuit.

Other circuits are divided on the applicable standard of review for equitable tolling determinations under AEDPA of questions other than findings of fact. Some circuits have held that when the facts are undisputed, the district court's decision on equitable tolling is reviewed de novo. See Brinson v. Vaughn, 398 F.3d 225, 231 (3d Cir.2005) (Alito, J.) (noting but not holding that "we are inclined to believe that where, as here, the relevant facts are not disputed, a District Court's decision on the question whether a case is sufficiently 'extraordinary' to justify equitable tolling should be reviewed de novo."); FN3 Wade v. Battle, 379 F.3d 1254, 1264 n. 11 (11th Cir.2004) ("We review de novo a district court's decision on equitable tolling."); Dunlap v. United States, 250 F.3d 1001, 1007 n. 2 (6th Cir.2001) ("In this Circuit, we hold that where the facts are undisputed or the district court rules as a matter of law that equitable tolling is unavailable, we apply the de novo standard of review to a district court's refusal to apply the doctrine of equitable tolling; in all other cases, we apply the abuse of discretion standard." (emphasis added)); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999) ("[W]here, as here, the facts are undisputed as to the question of equitable tolling, we review de novo....").

FN3. In Brinson, the court explained its reason for finding de novo review to be the appropriate standard:

First, a District Court does not have any comparative advantage in deciding whether particular circumstances are extraordinary enough to warrant the application of the doctrine. Second, reversal of a District Court's ruling on this issue will not lead to a retrial or any other comparably burdensome proceedings. Third, de novo review leads to greater uniformity in the application of the doctrine and better serves the goal of ensuring that the doctrine is indeed used "sparingly" and is not employed to upset the strong concern for finality embodied in 28 U.S.C. § 2254. Brinson, 398 F.3d at 231.

Other circuits have held that the district court's decision on equitable tolling is reviewed for an abuse of discretion. See Cordle v. Guarino, 428 F.3d 46, 47 (1st Cir.2005) ("We review the district court's decision regarding equitable tolling in this habeas case for abuse of discretion."); Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir.2003) ("[W]e review the district court's decision on equitable tolling of the limitation period for an abuse of discretion."). Several Circuits, however, take a third approach and provide for de novo review when the district court denies equitable tolling as a matter of law, and abuse of discretion in other circumstances where the court's decision is based on exercise of discretion. See Rouse v. Lee, 339 F.3d 238, 248 (4th Cir.2003) ("[W]here the relevant facts are undisputed and the district court denied equitable tolling as a matter of law, we review the district court's decision de novo. In all other circumstances, we review the denial of equitable tolling for an abuse of discretion." (emphasis added)); United States v. Saro, 252 F.3d 449, 455 n. 9 (D.C.Cir.2001) ("We have examined whether the court was 'correct,' rather than whether it 'abused its discretion,' because we employ de novo review when a district court holds-as the court appears to have done here-that the facts cannot justify equitable tolling as a matter of law."); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (reviewing a district court's denial of equitable tolling for abuse of discretion but noting that de novo review applies where district court denies equitable tolling as a matter of law); cf. Jihad v. Hvass, 267 F.3d 803, 806 n. 3 (8th Cir.2001) (ruling that in a case where the district court denied equitable tolling as a matter of law, "we have reviewed its ruling de novo.").


W.D. Louisiana Notes Split Re Whether Lost Profits Constitute Recoverable Damages Under CFAA

Per Frees, Inc. v. McMillian, Slip Copy, 2007 WL 2264457 (W.D.La . Aug 06, 2007) (NO. CIV.A. 05-1979):

Defendants contend that lost revenues are not compensable damages in this case because there has not been an interruption of computer service. See Record Document 82-3 at 1. They argue the phrase "any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service " is not only a jurisdictional threshold, but also a limitation on the types of recoverable damages. 18 U.S.C. § 1030(e)(11). Frees rejects this contention, arguing that a plaintiff is entitled to recover ordinary "compensatory damages" once the jurisdictional threshold has been met.

The Fifth Circuit has not addressed this issue and the circuits addressing the issue are split. See Nexans Wires S.A. v. Sark-USA, Inc., 166 Fed. Appx. 559 (2nd Cir.2006); Creative Computing v. Getloaded.com LLC, 386 F.3d 930 (9th Cir.2004). The Ninth Circuit held that loss of business and business goodwill constitutes recoverable damages under the CFAA [Computer Fraud and Abuse Act], but the Court failed to provide any discussion or give any reason for its holding. See Creative Computing, 386 F.3d at 936. Conversely, the Second Circuit excluded lost profits from the recoverable damages, stating:

As the district court correctly recognized, the plain language of the statute treats lost revenue as a different concept from incurred costs, and permits recovery of the former only where connected to an "interruption of service." Nexans, 166 Fed. Appx. at 562.

However, the district court in Nexans simply found that the plaintiff did not allege "loss" sufficient to establish the jurisdictional threshold; the court did not discuss whether lost profits would be recoverable as damages, nor did the court address the issue.


2d Circuit Notes Split Re Whether a Petitioner May File a Subsequent Motion to Reopen to Cure a Lack of Notice

Per Chhetry v. U.S. Dept. of Justice, 490 F.3d 196 (2d Cir. Jun 20, 2007) (NO. 06-3416-AG):

There is, however, a circuit split as to whether a petitioner's ability to file a subsequent motion to reopen cures a lack of notice. The Fifth, Seventh, and D.C. Circuits have held that, for a petitioner on direct appeal from a final order of removal, the availability of a motion to reopen serves as a sufficient "mechanism to rebut officially noticed facts" because petitioners can use such a motion to present the BIA with "evidence that the facts it officially noticed are incorrect or that they are true but irrelevant to their case," and, if the BIA refuses the motion, petitioners can appeal. Kaczmarczyk, 933 F.2d at 597; see also Rivera-Cruz, 948 F.2d at 968-69; Gutierrez-Rogue, 954 F.2d at 773. The Ninth and Tenth Circuits, on the other hand, have held in similar cases that the availability of a motion to reopen is an inadequate substitute for a full opportunity to rebut administratively noticed facts because, inter alia, the discretionary nature of motions to reopen does not guarantee a petitioner an effective ability to respond to previously-noticed facts, and petitioners are not guaranteed a stay of deportation while awaiting a decision on reopening. See Castillo-Villagra, 972 F.2d at 1030; Gomez-Vigil v. INS, 990 F.2d 1111, 1124 (9th Cir.1993) (Fletcher, J., concurring); de la Llana-Castellon, 16 F.3d at 1100.

Like the Ninth and Tenth Circuits, we doubt whether the protection afforded by the availability of a motion to reopen is enough for petitioners on direct appeal from final orders of removal. However, we need not decide this broader question because Chhetry appeals from the denial of a motion to reopen; he does not appeal from the BIA's final order of removal. Thus, not only would Chhetry have to surmount the usual hurdles attendant upon the filing of motions to reopen, but any subsequent motion to reopen might also be number-barred. See 8 C.F.R. §§ 1003.2(c)(2), (c)(3). We therefore agree with the First Circuit that when "the Board intends to take official notice in deciding a motion to reopen or reconsider it would be absurd to force an applicant to file a second motion to respond to the newly noticed facts. A multiplicity of motions for rehearing in this context would have two undesirable effects: dilution of the applicant's procedural rights and concentration of the incentive to prolong litigation." Gebremichael v. INS, 10 F.3d 28, 39 (1st Cir.1993) (emphasis omitted).


Federal Circuit Notes Split Re Circumstances in Which an Appeal From a Court's Criticism of an Attorney is Permitted

Per Nisus Corp. v. Perma-Chink Systems, Inc., --- F.3d ----, 2007 WL 2296504 (Fed. Cir. (Tenn.) Aug. 13, 2007) (NOs. 2006-1592, 2007-1142 ):

It is not always easy to determine whether a court's criticism of an attorney should be regarded as a sanction in a collateral proceeding, and there is some disagreement among the courts of appeals as to the circumstances in which an appeal from a court's criticism of an attorney is permitted. The Seventh Circuit permits such appeals only if the court has imposed a formal sanction against the attorney carrying a monetary penalty. See Seymour v. Hug, 485 F.3d 926, 929 (7th Cir.2007) ("[A]n attorney can bring an appeal on her own behalf when challenging a district court decision imposing monetary sanctions on the attorney, but this rule does not allow an appeal of otherwise critical comments by the district court when no monetary sanctions have been imposed."). Other courts permit an attorney to appeal from a judicial order in which the court states that the attorney has engaged in professional misconduct, holding that such a declaration is itself an appealable sanction. See Butler v. Biocore Med. Techs., Inc., 348 F.3d 1163, 1168-69 (10th Cir.2003); United States v. Talao, 222 F.3d 1133, 1137 (9th Cir.2000); Walker v. City of Mesquite, 129 F.3d 831, 832-33 (5th Cir.1997); Sullivan v. Comm. on Admissions & Grievances, 395 F.2d 954, 956 (D.C.Cir.1967). The First Circuit has adopted a middle position, not requiring a monetary sanction, but finding that "[w]ords alone may suffice if they are expressly identified as a reprimand." In re Williams, 156 F.3d 86, 92 (1st Cir.1998); see Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 542-44 (3d Cir.2007).


5th Circuit Notes Settled Split Re Due Process Concerns When District Court Reimposes Term of Supervised Release After Revoking Initial Term

Per U.S. v. Molina Martinez, --- F.3d ----, 2007 WL 2285324 (5th Cir.(Tex.) Aug 09, 2007) (NO. 06-41065):

The Supreme Court settled the circuit split in Johnson v. United States, which was issued in 2000, well before Martinez's initial supervised release term was revoked. In Johnson, the Supreme Court sided with the minority approach and held that § 3583(e)(3) permitted district courts to impose a term of supervised release after revoking an initial term of supervised release. Martinez argues that applying Johnson retroactively to his 1993 conviction violates the Due Process Clause because he had no notice or fair warning that he could be subjected to reimposition of supervised release following revocation. The Government argues that the retroactive application of Johnson does not violate the Due Process Clause because the Supreme Court's judicial interpretation of the statute was neither unexpected nor indefensible.

In a recent unpublished decision, United States v. Seals, this court held that Johnson was properly applied retroactively to the defendant's original conviction, which occurred in 1992. The court stated that "[i]f a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect." Because a circuit-split existed prior to Johnson and at the time of the defendant's original conviction and sentencing, the court concluded that Johnson's construction of § 3583(e)(3) was reasonably foreseeable and provided the defendant with a fair warning. Thus, it was not unconstitutional to apply Johnson retroactively.

Although Seals is unpublished, and thus not binding, Seals is authoritative and persuasive. Therefore, applying Johnson retroactively to Martinez's 1993 conviction does not violate the Due Process Clause, and the district court did not plainly err in reimposing supervised release after the first revocation. Accordingly, Martinez's sentence is affirmed.


D. Nebraska Notes Split Re Whether Federal Counsel's Liability for Excessive Costs Statute Applies to Pro Se Litigants

Per Wallace v. Kelley, Slip Copy, 2007 WL 2248105 (D.Neb . Aug 01, 2007) (NO. 4:06CV3214):

The Defendants move for an award of attorney's fees against Plaintiff Edith Jackson pursuant to 28 U.S.C. § 1927, or in the alternative under the inherent power of the court.

28 U.S.C. § 1927 states:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.

Several courts of appeals have considered whether 28 U.S.C. § 1927 applies to pro se litigants. See, e.g. Wages v. I.R.S., 915 F.2d 1230, 1235-36 (9th Cir.1990), cert. denied, 498 U.S. 1096, 111 S.Ct. 986, 112 L.Ed.2d 1071 (1991)) (holding that § 1927 is applicable to pro se plaintiffs); see also Brown v. Adidas Int., 938 F.Supp. 628 (S.D.Cal.1996) (holding that § 1927 is applicable to pro se plaintiffs); contra Sassower v. Field, 973 F.2d 75, 80 (2nd Cir.1992) (emphasis added), cert. denied, 507 U.S. 1043, 113 S.Ct. 1879, 123 L.Ed.2d 497 (1993)(holding that pro-se litigants are not included within the phrase "other person admitted to conduct cases" in § 1927); Meadowbriar Home for Children, Inc. v. G.B. Gunn, 81 F.3d 521, 535 (5th Cir.1996) (holding that § 1927 applies not to parties but rather to the parties' attorneys); see also Alexander v. U.S., 121 F.3d 312, 316 (7th Cir.1997) (noting circuit split on whether § 1927 applies to pro se litigants and deciding to impose sanctions under court's inherent powers). The Eighth Circuit Court of Appeals has not considered the applicability of 28 U.S.C. § 1927 to pro se litigants, however, this Court will follow the approach of the Ninth Circuit Court of Appeals and apply the statute to pro se litigants. In the alternative, the Court will assess fees against the Plaintiff pursuant to the inherent power of the court. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (holding that a court may assess attorney's fees when a party has " 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons.' " ( citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-259, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) ( quoting F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974))).


D. New Jersey Notes Split Re Who Bears the Burden of Proof in FTCA Actions

Per Williams v. U.S. Army Corps of Engineers, Slip Copy, 2007 WL 2261559 (D.N.J . Aug 02, 2007) (NO. CIV.A.06-CV-834):

The policy behind discretionary immunity is to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.' " Gaubert, 499 U.S. at 325 (citing Berkovitz, 486 U.S. at 537). Defendant Army Corps points to 33 U.S.C. §§ 1, 419a, and 622 as express indicia of Congress' intent to give the Army Corps discretion in the design and placement of dredge facilities. (Army Corps Brief-December 19, 2006 at 10-13.) The Supreme Court has held that "when established government policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324. Furthermore, "for a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be grounded in policy of the regulatory regime." Id. at 324-25. FN14 This holding compels the Court to examine the statutes at issue to determine (1) whether the Army Corps was given judgment or choice under the applicable statutes in designing the NPCDF and (2) if so, whether the judgment exercised was of the kind discretionary immunity is designed to shield. See Mitchell, 225 F.3d at 363.

FN14. This holding seems to suggest that the burden of proof is on the plaintiff in FTCA actions. However, there is some division among the circuits as to what the proper burden allocation scheme may be. See Smith v. United States, 943 F.Supp. 159, 168 (D.R.I.1996) (articulating the circuit split); see also Ugo Colella & Adam Bain, The Burden of Proving Jurisdiction Under the Federal Torts Claim Act: A Uniform Approach to Allocation, 67 Fordham L.Rev. 2859 (1999). Given the Court's determination that this matter will proceed as a Rule 12(b)(1) motion, the burden of persuasion is on Plaintiff. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991). This means furthermore that "no presumptive truthfulness attaches to plaintiff's allegations," and the Court will determine for itself if the plaintiff has satisfied a jurisdictional claim. Mortensen v. First Fed'l Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). The Court is free to weigh the evidence to determine if it has subject matter jurisdiction. Id.


M.D. Florida Notes Former Split Re What Constitutes an Adverse Employment Action in Retaliation Claim Under Title VII

Per Bothwell v. RMC Ewell, Inc., Slip Copy, 2007 WL 2254496 (M.D.Fla . Aug 03, 2007) (NO. 804-CV-1270T-17-MSS):

Prior to Burlington, a split existed among the Circuits regarding what constitutes an adverse employment action with respect to a retaliation claim under Title VII and, therefore, the ADEA. See Burlington, 126 S.Ct. at 2410. Whereas some Circuits, such as the Fifth, Sixth and Eighth, considered an employment action to be adverse only if it resulted in a materially adverse change in the terms and conditions of employment, other Circuits, such as the Seventh, Ninth and District of Columbia, considered an employment action to be adverse where a plaintiff was able to show that a reasonable employee would have found the challenged action materially adverse. See id. at 2410-11. Because of these varying interpretations, the Supreme Court decided to adopt a uniform standard to be applied to all Title VII and ADEA retaliation claims across the Circuits. See id. at 2411.

In Burlington, the Supreme Court concluded that "[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm," thereby "reject[ing] the standards applied in [those] Courts of Appeals that ... limited actionable retaliation to so-called 'ultimate employment decisions.' " Id. at 2414. In conjunction with this interpretation, the Supreme Court adopted a similar standard applied by the other Courts of Appeals, including the Seventh, Ninth and District of Columbia Circuits. See id. at 2415. Under the adopted standard, in order for a plaintiff to prove that he or she was subjected to an adverse employment action in a retaliation claim, "[the] plaintiff must [only] show that a reasonable employee would have found the challenged action materially adverse," which means that the challenged action would have "dissuaded a reasonable worker from making or supporting a charge of discrimination." See id.

"Although not cited by the Supreme Court [in Burlington ], the Eleventh Circuit [previously] articulated substantially the same standard [for a retaliation claim] in Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1447 (11th Cir.1998)." Reis v. Universal City Dev. Partners, Ltd., No. 6:05-cv-613-Orl-19JGG, 2006 WL 2054178, at *13 (M.D.Fla. July 21, 2006). "Like the Supreme Court in [ Burlington ], the Eleventh Circuit established an objective, reasonable person standard," and "stressed that '[a]ny adversity must be material.' " Id. (summarizing the standard outlined in Doe ). The standard adopted in Doe also reflected prior decisions of the Eleventh Circuit such as Wideman, where the Eleventh Circuit expressly "join[ed] the majority of circuits which have ... [held] that ... protection against retaliatory discrimination [under Title VII and the ADEA] extends to adverse actions which fall short of ultimate employment decisions." Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998) (emphasis added).

Due to the overall similarity between the standards, this Court in Reis found "no appreciable difference in applying the standard articulated by the Supreme Court in [ Burlington ] and the standard articulated by the Eleventh Circuit in Doe." See Reis, 2006 WL 2054178, at *13. The standard set forth by the Supreme Court is essentially the same as the standard previously employed by the Eleventh Circuit and, therefore, this Court.


E.D. California Notes Split Re Whether a Sentencing Court has Authority to Impose a Consecutive Sentence to a Future Sentence Not Yet Imposed

Per King v. Smith, Slip Copy, 2007 WL 2253601 (E.D.Cal . Aug 03, 2007) (NO. CVF 051053 OWWDLBHC):

Here, the BOP considered Petitioner's request to have his federal sentence be deemed concurrent nunc pro tunc with his state sentence. Petition, Exhibit A. BOP staff verified that the State of Alaska had indeed given Petitioner custody credit for the entire time between the date of his arrest on February 18, 2000, and his release to federal custody on February 17, 2002. Attachment 2, ¶ 4. Although the federal district court could not have imposed the federal sentence to be consecutive with his state sentence that had not yet been imposed, the State of Alaska did not impose the state sentence to run concurrent with the federal sentence. See United States v. Clayton, 927 F.3d 491, 493 (9th Cir.1991) ("[A]s a matter of statutory construction, we interpret the 'already subject to' provision of section 3582(a) as only granting federal courts the power to sentence consecutive to a previously imposed term of imprisonment.") FN2

FN2. There currently exists a split among the circuit courts as to whether the sentencing court has the authority to impose a consecutive sentence to a future sentence, not yet imposed. Compare Romandine v. United States, 206 F.3d 731 (7th Cir.2000) (district court does not have such authority); United States v. Quintero, 157 F.3d 1038 (6th Cir.1998) (same); United States v. Smith, 472 F.3d 222 (4th Cir.2006) (same), with United States v. Hernandez, 234 F.3d 252 (5th Cir.2000) (district courts do have such authority); United States v. Williams, 46 F.3d 57 (10th Cir.1995) (same); Salley v. United States, 786 F.2d 546 (2d Cir.1986) (same); United States v. Ballard, 6 F.3d 1502 (11th Cir.1993) (same).


D.C. Circuit Notes Split Re Definition of "Successors in Interest" Under Internal Revenue Service Regulations

Per Holland v. Williams Mountain Coal Co., --- F.3d ----, 2007 WL 2176106 (D.C.Cir. Jul 31, 2007) (NO. 06-7041):

We begin with the defendants' claim that the trustees "pursued an action ... on a legal theory at odds with prevailing law." Appellees' Br. 13. The district court did not rely on this argument-and correctly so. When this lawsuit was initiated in 1996, there was no "prevailing law" regarding the meaning of "successor in interest" as it appears in the Coal Act. At that time, neither this circuit nor any circuit had ruled on the question.

It is true, as the defendants note, that a West Virginia district court, reviewing a bankruptcy court proceeding, had ruled on the issue. See UMWA 1992 Benefit Plan v. Leckie Smokeless Coal Co., 201 B.R. 163 (S.D.W.Va.1996). The West Virginia court, applying a definition of "successors in interest" found in Internal Revenue Service regulations, held that "purchasers of assets in bankruptcy cannot be 'successors in interest' because ... they do not inherit the tax attributes of their predecessors." Id. at 171. That ruling was on appeal when the trustees filed their complaint, and was later affirmed on grounds unrelated to the definition of "successor in interest." See In re Leckie Smokeless Coal Co., 99 F.3d 573 (4th Cir.1996). FN4

FN4. The Fourth Circuit stated: "The courts below determined that the purchasers of Appellees' assets would not be Appellees' successors in interest within the meaning of the [Coal] Act. We need not and do not now resolve the matter, having conclued that, even if [the purchasers were] successor[s] in interest, the Bankruptcy Court may extinguish Coal Act successor liability." Leckie Smokeless Coal Co., 99 F.3d at 585.

It is also true that, after our own district court issued its judgment, and while the case was pending on appeal to this court, the United States Court of Appeals for the Sixth Circuit reached a decision in accord with that of the West Virginia district court. See Holland v. New Era Coal Co., 179 F.3d 397, 403 (6th Cir.1999). On appeal, we cited the Sixth Circuit's conclusion in reaching our own. See Williams Mountain, 256 F.3d at 822.

But these cases cannot alone support a charge that the trustees acted in bad faith. Decisions of the Southern District of West Virginia and of the Sixth Circuit do not bind this court. Such decisions may, of course, influence our own decisions because of their persuasive force--as indeed happened here--but the fact that another jurisdiction has rejected a legal theory does not render it so devoid of merit as to make reliance on it an exercise in bad faith. It is hardly unusual for courts of appeals, including this court of appeals, to disagree with their sister circuits. To the contrary, such circuit splits are an important font of the Supreme Court's workload.


N.D. Cal. Notes Split Re Whether Costs of Videotaping Depositions are Recoverable Under Federal Judicial Taxation Statute

Per MEMC Electronic Materials v. Mitsubishi Materials, Slip Copy, 2004 WL 5361246 (N.D.Cal . Oct 22, 2004) (NO. C-01-4925 SBA (JCS)):

With respect to the question of whether fees for video technicians and other costs associated with videotaping are allowable, the Court looks first to the local rule. Rule 54-3(c)(1) provides that prevailing parties are entitled to "the cost of an original and one copy of any deposition (including videotaped deposition) taken for any purpose in connection with the case." Civil L.R. 54-3(c)(1). Admittedly, the phrasing of this rule is vague as to what expenses associated with videotaped depositions are recoverable. The Court concludes, however, that a sensible reading of the rule covers the cost of videotaping and the cost incurred by the court reporter associated with obtaining a stenographic transcription of a deposition, as well as the cost of one copy of the videotape and of the written transcript. The rule does not allow parties to recover the costs of obtaining multiple copies of videos or transcripts. Nor does the rule authorize award of appearance fees or special services such as indexing.

This reading is, for the most part, consistent with the scant case law the Court has found addressing the question of whether the costs associated with videotaping depositions is recoverable under 28 U.S.C. § 1920. For example, in Tilton v. Capital Cities/AB, Inc. ., 115 F.3d 1471 (10th Cir.1997), the court of appeals held that the district court did not err in awarding the costs of both videotaping and transcribing depositions. The Court in Tilton began by holding that the costs associated with videotaping of depositions are taxable under § 1920, reasoning as follows:

We agree with the district court that the costs associated with videotaping a deposition are taxable under section 1920(2). In so holding, we recognize that section 1920(2) does not explicitly provide for the taxation of costs associated with video depositions. Federal Rule of Civil Procedure 30(b)(2)-(3), however, authorizes videotape depositions as an alternative to traditional stenographic depositions.... Interpreting section 1920(2) in conjunction with Rule 30(b)(2)-(3), we hold section 1920(2) implicitly permits taxation of the costs of video depositions. Id. at 1477.

In a footnote, the court noted that "[m]ost courts have agreed that a district court may tax the costs of a video deposition under section 1920(2) ." Id. The court added that "permitting recovery of the costs of video depositions comports with public policy" because videotaping depositions is an efficient way to preserve witness testimony. Id.

. . .

The two cases cited by Plaintiff in support of the position that the cost of videotaping is not recoverable are not persuasive. First, Plaintiff cites to Coates v. Penrod Drilling, 5 F.3d 877, 891 (5th Cir.1993). In that case, the court denied a request for video technician fees on the basis that "[t]hese expenses are not included in § 1920 and therefore are not recoverable." The court, however, does not provide any reasoning in support of this conclusion or cite to any authority. Thus, to the extent the Coates cases suggests the existence of a split of authority between the circuits, this court finds the approach taken by the Tenth Circuit in Tilton more persuasive.


N.D. Ohio Notes Split Re Whether Cross-Claim Defendant Is a Defendant for Purposes of Removal

Per Ford Motor Credit Co. v. Jones, Slip Copy, 2007 WL 2236618 (N.D.Ohio Jul 31, 2007) (NO. 1:07 CV 728):

The Court does not disagree that the intent of Congress was to expand federal jurisdiction over class actions, by doing away with the nonaggregation rule and providing for minimal diversity. However, the argument that Congress intended to allow a cross-claim defendant to remove a case in enacting the CAFA is tenuous at best. As noted by Mullinax, the Circuit Courts are split on the issue of whether a cross-claim defendant is a defendant for purposes of removal. In the Sixth Circuit, a cross-claim defendant is not permitted to remove an action. There is no basis upon which to find otherwise.


S.D. Indiana Notes Split Re Meaning of "In Writing" Requirement under Telecommunications Act

Per Helcher v. Dearborn County, Slip Copy, 2007 WL 2249068 (S.D.Ind . Jul 31, 2007) (NO. 4:06-CV-00102SEBWGH):

Plaintiffs further maintain that the Board's denial of their conditional use permit application was not "in writing," as mandated by the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(iii). The text of the Telecommunications Act does not define precisely what is meant by a "writing," and our research suggests that the Seventh Circuit has not yet had the opportunity to interpret this provision. FN11 Other courts, however, have construed the writing requirement imposing differing degrees of stringency. See generally APT Pittsburgh Ltd. Partnership v. Penn Township Butler County of Pennsylvania, 196 F.3d 469, 474 n. 4 (3rd Cir.1999) (noting the lack of uniformity among courts as to the issue).

FN11. In VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 831 n. 4 (7th Cir.2003), the Seventh Circuit noted that, because the parties therein did not dispute that the Board's decision met the writing requirement, it had "no occasion to consider the 'in writing' requirement of § 332(c)(B)(iii) at this time." Id. The Court cited New Par v. City of Saginaw, 301 F.3d 390, 395 (6th Cir.2002), Southwestern Bell Mobile Systems, Inc. v. Todd, 244 F.3d 51, 60 (1st Cir.2001), and AT & T Wireless PC S, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423, 430 (4th Cir.1998), all discussed infra, demonstrating its awareness of the circuit split on this issue; however, it did not indicate whether it considered any of the approaches taken in these cases persuasive.

Plaintiffs attempt to persuade us to adopt an approach similar to that employed by the Sixth Circuit in New Par and by the First Circuit in Southwestern Bell. In New Par, the Sixth Circuit interpreted the Telecommunications Act's "in writing" requirement to mean that the denial "must (1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons." 301 F.3d at 395. The First Circuit's approach in Southwestern Bell is similar. 244 F.3d at 60. Under these standards, Plaintiffs argue, the Board's minutes do not suffice as a separate written decision under the Act. Moreover, Indiana statute requires that a zoning board "shall in all cases heard by it make written findings of fact," ( Ind.Code § 36-7-4-915), which courts have interpreted to require specific findings that enable a court to review the decision intelligently. Carlton v. Board of Zoning Appeals, 245 N.E.2d 337 (Ind.1969). Plaintiffs maintain that the written decision rendered here by the Board in its meeting minutes "is a mere restatement of the statutory requirements of the [Dearborn County Zoning] Ordinances" and provides nothing beyond conclusory statements. Pls.' Mem. at 20.

The Board proposes that we adopt the approach taken in the Northern District of Illinois in Primeco Personal Communications v. Village of Fox Lake, 26 F.Supp.2d 1052 (N.D.Ill.1998). In that case, the court, noting that the writing requirement was a matter of first impression for the Seventh Circuit, sought "to predict how the Seventh Circuit would rule on the issue." Id. at 1061. The court analyzed the legislative context in which the Telecommunications Act was enacted and noted its "radical" intrusion into the traditionally local domain of land-use decisions. The court reasoned that Congress could have, had it chosen to, articulated extensive requirements for the "in writing" provision of the Telecommunications Act (as, for example, it did for the writing requirement in the Administrative Procedure Act)-but it did not do so. Therefore, the court concluded that, "given the comity interests implicated under these circumstances, we will not impute to Congress the intent to impose more of a burden than that expressly dictated by the Act." Id. at 1062. Accordingly, a written denial "need only notify the applicant of the local government's decision denying the application." Id. at 1061. See also AT & T Wireless, 155 F.3d at 430 ("The simple requirement of a 'decision ... in writing' cannot reasonably be inflated into a requirement of a 'statement of ... findings and conclusions, and the reasons or basis therefor.' ").

We find the Fox Lake court's reasoning persuasive, and hold that the Board's decision does fulfill the requirements of the Telecommunications Act. The Board's written record of the denial enables us to "efficiently judge [its] findings and conclusions against the evidence and the record." Illinois RSA No. 3, Inc. v.. County of Peoria, 963 F.Supp. 732, 740 (C.D.Ill.1997). The fact that these findings are contained within the minutes of the meeting rather than in a separate document does not change our view. See Fox Lake, 26 F.Supp.2d 1052 (finding that the zoning body's minutes constituted a writing under the Telecommunications Act).

Visit Aspen Publishers today! Free Shipping!