D.N.J. Notes Split Re Ability to Pursue Benefits and Breach of Fiduciary Duty Claims Together under ERISA

Per DeVito v. Aetna, Inc., --- F.Supp.2d ----, 2008 WL 482847 (D.N.J. Feb. 25, 2008):

There is a split among circuits and within this district as to the effect of Varity Corp. v. Howe, 516 U.S. 489, 515 (1996) and Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), on a plaintiff's ability to simultaneously pursue claims for benefits under § 502(a)(1)(B) and for breach of fiduciary duty under § 502(a)(3). See, e.g., Wolfe v. Lu, No. 06-0079, 2007 WL 1007181, *8-9 (W.D.Pa. Mar. 30, 2007) (noting that “the issue has been addressed by many district courts within our circuit with differing results” and collecting cases); Tannenbaum v. UNUM Life Ins. Co. of Am., No. 03-1410, 2004 WL 1084658, *3 (E.D.Pa. Feb. 27, 2004) (noting that “[t]he courts of appeals are split over whether Varity ever permits a plaintiff who has been denied benefits to simultaneously bring an action for benefits under § 1132(a)(1)(B) and an action for breach of fiduciary duty under § 1132(a)(3)(B)” and collecting cases). The Third Circuit has not expressly addressed this issue. See Wolfe, 2007 WL 1007181 at *8.

The Court is persuaded by the reasoning of those courts that have found that Varity does not establish a bright-line rule at the motion to dismiss stage of the case. See, e.g., Wolfe, 2007 WL 1007181 at *8-9; Parente v. Bell Atl. Pa., No. 99-5478, 2000 WL 419981, *3 (E.D.Pa. Apr. 18, 2000) (“Instead of a bright-line rule, Varity requires an inquiry into whether ‘Congress provided adequate relief for a beneficiary's injury.’ ”); Moore v. First Union Corp., No. 00-2512, 2000 WL 1052140, * 1 (E.D.Pa. July 24, 2000) (“As was recently noted by this Court, Varity does not propose a bright-line rule that a claim for equitable relief under § 1132(a)(3) should be dismissed when a plaintiff also brings a claim under § 1132(a)(1)(B)”); see also Crummett v. Metro. Life Ins. Co ., No. 06-1450, 2007 WL 2071704, *3 (D.D.C. Jul. 16, 2007) (“The court agrees that dismissal of § 502(a)(3) claims should not automatically occur simply because a complaint also brings § 502(a)(1)(B) claims.”).


N.D. Okla. Briefly Notes Intra-Circuit Split Re Review of AEDPA Sufficiency-of-the-Evidence Issue

Per Veasman v. Mullin, Slip Copy, 2008 WL 450378 (N.D. Okla. Feb. 15, 2008):

Tenth Circuit authority is divided as to “whether, under AEDPA, we review a sufficiency-of-the-evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1).” Romano v. Gibson, 239 F.3d 1156, 1164 n. 2 (10th Cir.2001).


D. Colorado Notes Split Re Whether Sec. 1927 Authorizes Fee Awards agaisnt Law Firms

Per Medtronic Navigation, Inc. v. BrainLAB Medizinische Computersystems Gmbh,
Slip Copy, 2008 WL 410413 (D. Colo. Feb. 12, 2008):

There is a split of authority on the question of whether section 1927 authorizes fee awards against law firms. See Claiborne v. Wisdom, 414 F.3d 715, 722-24 (7th Cir.2005) (discussing circuit split and concluding that “ § 1927 does not provide a legal basis for an order of fees against an entity like a law firm that is not itself ‘admitted to practice’ ”). The United States Court of Appeals for the Tenth Circuit has not addressed this issue.


Fifth Circuit Notes Split Pertaining to 5th Amendment Privilege against Self-Incrimination

Per U.S. v. Martinez-Larraga, --- F.3d ----, 2008 WL 324783 (5th Cir. Feb. 07, 2008):

We also note that this court has not resolved, and there is a circuit split as to, whether the Fifth Amendment privilege against self-incrimination prohibits prosecution proof, as substantive evidence of guilt, of a nontestifying defendant's post-arrest, pre- Miranda warning silence not in response to custodial interrogation. See United States v. Salinas, 480 F.3d 750, 758-59 (5th Cir.2007); United States v. Frazier, 408 F.3d 1102, 1110-11 (8th Cir.2005).


D. Mass Discusses Split Re Whether the Government Bears the Burden of Establishing a Defendant's Competency to Stand Trial

Per U.S. v. Patel, 524 F.Supp.2d 107 (D. Mass. Nov. 27, 2007):

Surprisingly, a question arises regarding whether the Government bears the burden of establishing competency, or the defendant bears the burden of establishing incompetency. 18 U.S.C. § 4241 is silent on this point, noting only that the court must find by a preponderance of the evidence that the defendant is incompetent to stand trial. The legislative history is also silent. Lastly, the First Circuit does not appear to have considered the burden of proof issue.

. . .

[O]ther circuits' discussion of the matter may be instructive. But other circuits have either declined to address the issue or are split.

The Second Circuit, after acknowledging that “[t]he federal statute providing for competency hearings does not allocate the burden of proof, and neither the Supreme Court nor this court has decided as a matter of statutory construction whether the government or defendant bears the burden,” declined to decide the issue. Several district courts have also declined.

The Fourth and Eleventh Circuits have adopted the Supreme Court's statement in Cooper that the accused has the burden of proof. The Fourth Circuit stated that “Under federal law, the defendant has the burden ... [to show] that the defendant is ... mentally incompetent,” citing 18 U.S.C. 4241 and Cooper. The Eleventh Circuit also noted, “[A] petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence.” Several district courts have also adopted this view.

The Third, Fifth and Ninth Circuits, however, take the view that the Government has the burden of proof to demonstrate competency. The Fifth Circuit has stated, “ There is no question that in federal prosecutions, the government bears the burden of proving the defendant's competence to stand trial by a preponderance of the evidence.” Several district courts have also adopted this position.

. . .

This court adopts the view of the Third, Fifth and Ninth Circuits. It is the position of this court that it is the Government's burden to establish competency to stand trial, not the defendant's burden to establish incompetency. Just as the Government must establish other prerequisites to trial, the Government must establish a defendant's competency.


10th Circuit Notes Intra-Circuit Split Re Whether, under AEDPA, a Sufficiency-of-the-Evidence Issue Is Reviewed as Legal or Factual Finding

Per Denson v. Wilson, Slip Copy, 2008 WL 281579 (N.D. Okla. Jan. 31, 2008):

As stated above, a writ of habeas corpus will not be issued unless the state court's legal conclusions are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U .S.C. § 2254(d)(1), or the state court's factual conclusions are “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. at § 2254(d)(2). “[A] determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Tenth Circuit authority is divided as to “whether, under AEDPA, we review a sufficiency-of-the-evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1).” Romano v. Gibson, 239 F.3d 1156, 1164 n. 2 (10th Cir.2001); see also Dockins v. Hines, 374 F.3d 935, 939 (10th Cir.2004); Torres v. Mullin, 317 F.3d 1145, 1151 (10th Cir.2003). Under either standard, Petitioner's claim in this case fails.

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