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https://www.courtlistener.com/api/rest/v3/opinions/4234494/
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C-Track E-Filing
The Supreme Court
of Nevada
Appellate Case Management System
C-Track, the browser based CMS for Appellate Courts
Case Search
Participant Search
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01-03-2023
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01-05-2018
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https://www.courtlistener.com/api/rest/v3/opinions/3382871/
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Cause dismissed on Motion of Counsel for Relator.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4233804/
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3852
___________
ANDREW PANICO,
Appellant
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-15-cv-01566)
District Judge: Honorable Brian R. Martinotti
____________________________________
Argued: March 30, 2017
Before: VANASKIE, KRAUSE, and RESTREPO, Circuit
Judges
(Opinion Filed: January 2, 2018)
_____________
PHILIP D. STERN, ESQ. [ARGUED]
ANDREW T. THOMASSON, ESQ.
Stern Thomasson
150 Morris Avenue
2nd Floor
Springfield, NJ 07081
Counsel for Appellant Andrew Panico
DAVID N. ANTHONY, ESQ. [ARGUED]
STEPHEN C. PIEPGRASS, ESQ.
Troutman Sanders
1001 Haxall Point
P.O. Box 1122
15th Floor
Richmond, VA 23219
AMANDA L. GENOVESE, ESQ.
Troutman Sanders
875 Third Avenue
New York, NY 10022
CINDY D. HANSON, ESQ.
Troutman Sanders
600 Peachtree Street, N.E.
Suite 5200
Atlanta, GA 30308
Counsel for Appellees Portfolio Recovery
Associates, LLC
___________
OPINION OF THE COURT
2
RESTREPO, Circuit Judge.
In this putative class action, Plaintiff-Appellant Andrew
Panico, who resides outside of the state of Delaware but signed
a contract with a choice-of-law provision specifying
application of Delaware state law, asserts that Defendant-
Appellee Portfolio Recovery Associates (“PRA”) violated the
Fair Debt Collection Practices Act (“FDCPA”) and the New
Jersey Consumer Fraud Act (“NJCFA”) by suing to collect
debts after the applicable Delaware statute of limitations had
run. The District Court granted Defendant’s motion for
summary judgment, after finding that a Delaware tolling
statute served to prevent the Delaware statute of limitations
from running as to a party residing outside the state of
Delaware through the pendency of the credit relationship,
default, collections attempts, and ensuing litigation. For the
reasons that follow, we will reverse the District Court’s grant
of summary judgment and remand the case for further
consideration.
I1
Panico is a resident of the state of New Jersey, who, by
early 2010, allegedly incurred substantial debt on a credit card
account with MBNA America Bank (“MBNA”). As it arose
from spending for personal or household purposes, Panico’s
obligation qualifies as “debt” under 15 U.S.C. § 1692a(5) of
the FDCPA. On June 18, 2010, MBNA regarded Panico as
delinquent on his then-outstanding balance. MBNA assigned
the rights to the debt to Appellee PRA, a debt collector.
1
For purposes of summary judgment in the District
Court, the parties stipulated to all of the facts as related here.
3
Although PRA engaged in attempts to collect the debt, it did
not succeed.
On October 20, 2014—more than three but fewer than
six years after the cause of action for debt collection accrued—
PRA sued Panico in New Jersey Superior Court to recover the
balance. New Jersey’s relevant statute of limitations barred
collection of such debts after six years; Delaware’s statute of
limitations, by contrast, proscribed collection of such debts
after only three years. The credit agreement governing the
relationship between Panico and MBNA provided for
application of “the laws of the State of Delaware, without
regard to its conflict of laws principles, and by any applicable
federal laws.” App. 54. Panico moved for summary judgment,
on the ground that the collections action was time-barred.
Rather than litigate the issue of whether Delaware’s tolling
statute applied to stop the state’s three year statute of
limitations from running as to defendants residing outside the
state, PRA agreed to a stipulated dismissal.
In March 2015, Panico filed this putative class action in
the District Court for the District of New Jersey. The class
action alleged violations of the FDCPA and the NJCFA, on the
grounds that PRA had sought to collect on a time-barred debt.
PRA moved for summary judgment on the basis that the debt
it had sought to collect was not time-barred. That motion
presented squarely the issue of whether the Delaware tolling
statute would apply to abrogate the statute of limitations that
would otherwise have barred the collection of the underlying
debt. The parties agreed to address that issue before addressing
class certification, and ultimately, the District Court granted
PRA’s motion for summary judgment on September 14, 2016.
Panico timely appealed.
4
II
The District Court had jurisdiction under 15 U.S.C.
§ 1692k(d)—the relevant section of the FDCPA—and 28
U.S.C. § 1331. We have jurisdiction over an appeal from a
final decision of a District Court under 28 U.S.C. § 1291. Our
review of a District Court’s grant of summary judgment is
plenary. NAACP v. City of Philadelphia, 834 F.3d 435, 440
(3d Cir. 2016). Summary judgment is appropriate when “the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a).
III
The parties agree, for the purpose of this appeal, that
under New Jersey conflict-of-law rules, Delaware law governs
this action.2 They disagree, however, as to the interaction of
Delaware’s statute of limitations and statutory tolling
provision. Delaware’s statute of limitations for actions to
recover debts based on a credit relationship between two
parties bars filing against defendants “after the expiration of
3 years from the accruing of the cause of such action.” Del.
Code Ann. tit. 10, § 8106a. PRA’s suit, filed in October of
2
PRA’s memorandum of law in support of its motion
for summary judgment before the District Court acknowledged
that, “[f]or the purposes of this motion only, PRA will presume
that [Panico]’s allegation as to the applicable state law and
statute of limitation is correct.” Supp. App. 1. PRA confirmed
at oral argument that it agreed to so presume, rather than
litigate the issue of conflict of laws, based on PRA’s firm belief
that it would prevail even if Delaware law applies.
5
2014 to collect an alleged debt regarded as delinquent as of
June 2010, falls outside the applicable statute of limitations.
PRA asserts, however, that the Delaware tolling statute applies
to stop the statute of limitations from running because Panico
resided outside of Delaware during the entirety of the credit
relationship, the debt collection efforts, and the period of time
preceding the commencement of litigation. The Delaware
tolling statute provides that:
If at the time when a cause of action accrues
against any person, such person is out of the
State, the action may be commenced, within the
time limited therefor in this chapter, after such
person comes into the State in such manner that
by reasonable diligence, such person may be
served with process. If, after a cause of action
shall have accrued against any person, such
person departs from and resides or remains out
of the State, the time of such person’s absence
until such person shall have returned into the
State in the manner provided in this section, shall
not be taken as any part of the time limited for
the commencement of the action.
Del. Code Ann. tit. 10, § 8117.
Our role is to apply the law of the appropriate
jurisdiction. City of Philadelphia v. Lead Indus. Ass’n, 994
F.2d 112, 123 (3d Cir. 1993). Contrary to PRA’s argument,
Delaware courts have interpreted the state’s tolling statute not
to abrogate the statute of limitations against defendants within
reach of the state’s long-arm statute. See, e.g., Hurwitch v.
Adams, 155 A.2d 591 (Del. 1959); Sternberg v. O’Neil, 550
6
A.2d 1105, 1114 (Del. 1988). In Hurwitch, the Delaware
Supreme Court noted that applying the tolling statute literally
“would result in the abolition of the defense of statutes of
limitations in actions involving non-residents.” Hurwitch, 155
A.2d at 594. Rather than countenance such a result, the Court
held that the tolling statute “has no tolling effect . . . when the
defendant in the suit is subject to personal or other service to
compel his appearance.”3 Id. at 593. As such, the limitations
period “runs continuously without interruption when there is
available to the plaintiffs throughout the period an acceptable
means of bringing the defendant into court.” Id. at 594
(citation omitted). Within Delaware, Hurwitch has guided
state courts to find that statutory tolling does not stop the
statute of limitations from running as to defendants who would
have been amenable to service. See, e.g., Sternberg, 550 A.2d
at 1114 (confirming, in the context of an Ohio corporation, that
there “is no tolling effect on the applicable statute of limitations
in any action when the nonresident defendant in the suit is
subject to substituted service of process.”).
PRA points to Saudi Basic Industries Corp. v. Mobil
Yanbu Petrochemical Co., where the Delaware Supreme Court
applied statutory tolling to an out-of-state entity so as to
abrogate an otherwise-applicable statute of limitations. 866
A.2d 1 (Del. 2003). But Saudi Basic only underscores that the
lynchpin of the analysis is whether the defendant could
reasonably be served. In that case, the court held that “the
purpose and effect of [the tolling statute] is to toll the statute of
3
Since Hurwitch, the tolling statute has been re-
codified at Del. Code Ann. tit. 10, § 8117, as cited above. At
the time, the tolling statute was codified at Del. Code Ann. tit.
10, § 8116.
7
limitations as to defendants who, at the time the action accrues,
are outside the state and are not otherwise subject to service of
process in the state.” Id. at 18. In those circumstances, the
statute of limitations is tolled until the defendant “becomes
amenable to service of process.” Id. The defendant in Saudi
Basic was a corporation based in Saudi Arabia, and could not
have been served even under Delaware’s long-arm statute.4
There is no dispute that the tolling statute applies in such a
case—but serving a resident of New Jersey differs
substantially from serving a Saudi Arabian corporation.
Indeed, PRA had no trouble serving Panico when it sued him
in New Jersey state court.5
The Hurwitch line of cases has guided out-of-state
courts in answering the question that Delaware courts cannot
sit in a posture to answer: whether Delaware’s tolling statute
4
That statute provides that “[a]ny person . . . submits
to the jurisdiction of the Delaware courts” when he or she,
among other things, “[t]ransacts any business . . . in the State.”
Del. Code Ann. tit. 10, § 3104(b)-(c). The same statute
provides for “service of process outside the State” in a variety
of ways—including personal delivery as prescribed for service
within Delaware, or personal delivery as prescribed for service
within the jurisdiction of the person to be served—so long as it
is “reasonably calculated to give actual notice.” Id. § 3104(d).
5
The parties stipulated at the summary judgment stage
that Plaintiff was not amenable to service of process in
Delaware, App. 47; however, while it may have been true that
Plaintiff was not subject to process while physically located in
Delaware, it is beyond peradventure that Plaintiff was subject
to service of process, even out of state.
8
stops the Delaware statute of limitations from running in suits
commenced, as here, in out-of-state jurisdictions against out-
of-state parties based on agreements governed by Delaware
law. Out-of-state courts have uniformly declined to apply the
Delaware tolling provision to stop the statute of limitations
from running in perpetuity. E.g., Portfolio Recovery Assoc.,
LLC v. King, 927 N.E.2d 1059, 1062 (N.Y. 2010) (concluding
the Delaware tolling provision did not extend the Delaware
statute of limitations in an action by the same party in this suit
to collect a debt against a non-resident of Delaware);
McCorriston v. L.W.T., Inc., 536 F. Supp. 2d 1268, 1276 (M.D.
Fla. 2008) (finding that an argument that the Delaware tolling
statute stopped the Delaware statute of limitations from
running, “although wrong . . . was a good faith mistake”);
Resurgence Fin., LLC v. Chambers, 173 Cal.App. 4th Supp. 1,
6 (2009) (finding that the Delaware tolling statute “can be most
reasonably read to apply only to actions that are actually filed
in a Delaware court or actions that could have been filed in a
Delaware court”).6
6
See also Izquierdo v. Easy Loans Corp., No. 2:13-cv-
1032-MMD-VCF, 2014 WL 2803285, *7 (D. Nev. June 19,
2014) (finding that the Delaware tolling statute only stopped
the Delaware statute of limitations from running when the
action was or could have been filed in a Delaware court);
Lehman Bros. Holdings, Inc. v. First Cal. Mortg. Corp., No.
13-cv-02113-CMA-KMT, 2014 WL 1715120, *4 (D. Colo.
April 30, 2014) (rejecting the argument that Delaware’s tolling
statute stops the statute of limitations from running when such
application would result in “an absurd result: tolling the
limitations period in perpetuity”).
9
The only courts that have accepted arguments
analogous to PRA’s here—that the Delaware tolling statute
stops the Delaware statute of limitations from running—have
done so in contexts where doing so would not create “the
‘absurd’ result of a claim surviving in perpetuity” or result in
“the abolition of a statute of limitations affirmative defense.”
Unifund CCR Partners v. Sunde, 260 P.3d 915, 925 (Wash.
App. 2011); see also CACV of Colorado, LLC v. Stevens, 274
P.3d 859 (Or. Ct. App. 2012). In both of those cases, the courts
applied the forum state’s limitations period to preserve the
availability of a statute of limitations defense. Unifund, 260
P.3d at 915 (applying Washington’s limitations period);
CACV, 274 P.3d at 859 (applying Oregon’s limitations period).
No court, then, has accepted the argument that PRA makes
here—that the Delaware tolling statute may stop the Delaware
statute of limitations from running in perpetuity as to the many
out-of-state consumers who sign contracts of adhesion with
Delaware corporations without ever setting foot in the state.
We believe those courts have the correct reading of the
interaction of the Delaware tolling and limitations statutes as
to such out-of-state defendants. For decades, the Delaware
tolling statute has abrogated the State’s statute of limitations
only as to defendants not otherwise subject to service of
process. We have heard no evidence that the Delaware
legislature intended to export the state’s tolling statute into out-
of-state forums so as to substantially limit the application of
the Delaware statute of limitations. Departing from that
precedent would also have the effect of eliminating the
protections of the FDCPA, NJCFA, and other state statutes
intended to protect debtors and regulate debt collection. We
see no reason to predict that the Delaware Supreme Court
would reject the Hurwitch line of cases in contravention of
10
federal and out-of-state consumer protection law in a manner
that would result in indefinite tolling of the state statute of
limitations. Accordingly, we decline to do so.
IV
For the foregoing reasons, we reverse the order of the
District Court, and remand for further proceedings consistent
with this opinion.
11
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01-03-2023
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01-02-2018
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https://www.courtlistener.com/api/rest/v3/opinions/4229404/
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4130
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA ALAN MCNEELY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:15-cr-00098-CCE-2)
Submitted: November 28, 2017 Decided: December 15, 2017
Before MOTZ, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James E. Quander, Jr., Winston-Salem, North Carolina, for Appellant. Terry Michael
Meinecke, Angela Hewlett Miller, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Alan McNeely pled guilty, pursuant to a plea agreement, to conspiracy to
distribute heroin, in violation of 21 U.S.C. § 846 (2012). The district court sentenced
McNeely to 162 months’ imprisonment. Pursuant to Anders v. California, 386 U.S. 738
(1967), McNeely’s counsel has filed a brief certifying that there are no meritorious
grounds for appeal, but questioning whether the district court complied with Fed. R.
Crim. P. 11 in accepting McNeely’s guilty plea and whether McNeely’s sentence is
reasonable. McNeely has not filed a pro se supplemental brief despite being notified of
his right to do so. We affirm.
Because McNeely did not seek to withdraw his guilty plea, we review the
adequacy of the Rule 11 hearing for plain error. United States v. Sanya, 774 F.3d 812,
815 (4th Cir. 2014). To establish plain error, an appellant must show: (1) error; (2) that
was plain; and (3) that affected his substantial rights. Id. at 816. “In the Rule 11 context,
this inquiry means that [defendant] must demonstrate a reasonable probability that, but
for the error, he would not have pleaded guilty.” Id. (internal quotation marks omitted).
Additionally, we exercise our discretion to correct such an error only if failing “to do so
would seriously affect the fairness, integrity or public reputation of judicial proceedings.”
Id. (internal quotation marks omitted). Our review of the record reveals that the district
court substantially complied with Rule 11 in accepting McNeely’s guilty plea, which he
entered knowingly and voluntarily.
We review the reasonableness of McNeely’s sentence for abuse of discretion.
United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). First, we assess procedural
2
reasonableness, considering whether the district court properly calculated the Sentencing
Guidelines range, allowed the parties to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2012) factors, and sufficiently explained the selected sentence.
Gall v. United States, 552 U.S. 38, 49-51 (2007). If a sentence is free of “significant
procedural error,” we then review it for substantive reasonableness, “tak[ing] into
account the totality of the circumstances.” Id. at 51. “Any sentence that is within or
below a properly calculated Guidelines range is presumptively reasonable,” and this
“presumption can only be rebutted by showing that the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d
295, 306 (4th Cir. 2014). Our review of the record leads us to conclude that McNeely’s
sentence is procedurally sound. Moreover, McNeely has failed to overcome the
presumption of substantive reasonableness accorded his within-Guidelines-range
sentence.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm the district court’s
judgment. This court requires that counsel inform McNeely, in writing, of the right to
petition the Supreme Court of the United States for further review. If McNeely requests
that a petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on McNeely.
3
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
4
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01-03-2023
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12-15-2017
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https://www.courtlistener.com/api/rest/v3/opinions/3829500/
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This is an original proceeding to review an award of the State Industrial Commission. It is admitted that on the 4th day of May, 1929, the respondent received an accidental personal injury arising out of and in the course of his employment, and that he was awarded compensation in the sum of $15 for temporary disability. He returned to work on May 14, 1929. On February 5, 1931, he was awarded compensation for $200 for serious and permanent disfigurement. On December 2, 1931, respondent was awarded compensation in the sum of $900 for 50 per cent. loss of vision of his right eye, and it was further ordered by the Commission that the petitioner pay all reasonable medical expenses incurred by respondent by reason of said injury.
The petitioner presents his cause to this court upon two propositions: (1) There is no competent evidence to sustain the finding of permanent loss of 50 per cent. of vision in the right eye as a result of said accidental personal injury; and (2) that there is no proof of any medical expense incurred by Martin Lankford as a result of said accidental injury. We have carefully examined the record in this case, and find that there is some competent evidence to sustain the award, and it is well settled in this jurisdiction that an award of the State Industrial Commission sustained by any competent *Page 282
evidence will not be disturbed on petition to review. The award for compensation is therefore affirmed. It is conceded by the respondent that there is no competent evidence relative to medical attendance, and the award for medical attendance is vacated.
LESTER, C. J., CLARK, V. C. J., and RILEY, HEFNER, CULLISON, and KORNEGAY, JJ., concur. ANDREWS and McNEILL, JJ., absent.
Note. — See under (1) annotation in L. R. A. 1916A, 266; L. R. A. 1917D, 186; 28 R. C. L. 812, 828, 829; R. C. L. Perm. Supp. p. 6254; R. C. L. Pocket Part, title Workmen's Compensation, § 116.
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3382940/
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Writ of Error dismissed on motion of counsel for the Defendant in Error.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4523033/
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Order entered April 6, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00377-CV
IN THE BEST INTEREST AND PROTECTION OF E.P., APPELLANT
On Appeal from the Probate Court No. 3
Dallas County, Texas
Trial Court Cause No. MI-20-00463
ORDER
Before the Court are appellant’s March 30, 2020 pro se motions to throw out
judgment and for mistrial. Because appellant is represented by counsel and is not
entitled to hybrid representation, we DENY the motion. See Smith v. Smith, 22
S.W.3d 140, 151, 153 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (civil
litigant not entitled to hybrid representation); see also In re Black, 04-18-00700-
CV, 2018 WL 6331052 (Tex. App.—San Antonio Dec. 15, 2018, orig. proceeding)
(mem. op.) (same - proceeding for civil commitment of sexually violent predator).
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE
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01-03-2023
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/3842056/
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Action by the Northwest Adjustment Company against Ora M. Akers, wherein the plaintiff recovered a judgment against the defendant, and wherein Multnomah County was brought in as garnishee. From a judgment determining that the money owing by the county to the defendant was not subject to garnishment, the plaintiff appeals.
APPEAL DISMISSED.
In an action brought by plaintiff against the defendant Akers, plaintiff recovered judgment *Page 342
for an amount in excess of $250 and caused an execution to be issued thereon and a notice of garnishment to be served on the county clerk of Multnomah county. At that time there was due and owing from the county to Akers $34.20 as a juror's fees.
Section 3-606, Oregon Code 1930, declares that any "salary", "wages", "credits" or "other personal property", in the possession or under the control of any county shall be subject to garnishment, and provides that the process in such proceeding may be served on the officer whose duty it is to issue a warrant for such "salary", "wages", "money" or "other personal property", and further provides that such officer shall not be required to answer as garnishee as to any money or property in custody of the law. The statute makes no specific mention of jurors' fees and such fees are not within the operation of the statute unless included in the words "salary", "wages", "credits" or "money". The certificate furnished by the clerk to the sheriff showed that said sum of $34.20 was due Akers as a juror's fees, but denied that such fees were attachable. This certificate being unsatisfactory to plaintiff, he caused written allegations and interrogatories to be served on the clerk, who answered as before. Upon the trial before the circuit court of the issues thus raised, it was held that jurors' fees were not subject to garnishment while in the possession of the county and that plaintiff was not entitled to judgment against the county as the garnishee defendant in the action. From this ruling, the plaintiff has appealed.
The appellate jurisdiction of this court is limited by section 7-501, Oregon Code 1930, which provides that: "no appeal to the supreme court shall be taken or allowed in any action for the recovery of money or *Page 343
damages only unless it appears from the pleadings in the case that the amount in controversy exceeds $250."
Plaintiff contends that the amount in controversy must be determined from the pleadings in the original action and not by the amount which was owed by the county and sought to be garnisheed herein. He cites in support of his contention King v.Porter, 113 Tex. 198 (252 S.W. 1022); Johnson v. Joslyn,47 Wash. 531 (92 P. 413); Ingham v. Harper, 71 Wash. 286
(128 P. 675, Ann. Cas. 1914C, 528); Lingo v. Belt, 198 Iowa 1276
(201 N.W. 5), and Meyer v. Perkins, 20 Cal. App. 661 (130 P. 206). In none of these cases, except King v. Porter, was the question involved of the amount necessary to confer jurisdiction upon an appeal in garnishment proceedings. It must be remembered, in considering decisions from other jurisdictions, that regard must be had to the statutory or constitutional provisions involved there. In the King case it was held that a garnishment proceeding being ancillary to and a part of the original action, the court had appellate jurisdiction in such proceedings though the amount involved was less than $100, where it had jurisdiction in the original suit. That decision recites that the statute provided that the writ shall be made returnable to the court in which the judgment was rendered and that the cause should be heard and determined in that court without reference to the amount in controversy. Since we have no such statute in this state, that decision is not authoritative in this case. The Washington cases cited were based upon a constitutional provision which provided that "appellate jurisdiction shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy, or the value of the property, does not exceed the sum of two hundred dollars". See Ingham v.Harper Son, *Page 344
supra, where it was said: "The framers of the Constitution must be presumed to have used the words `original amount' advisedly. The most obvious meaning and purpose of the word `original' in its connection is to limit the amount to the time when the matter first originates as a controversy in court; that is, to the time when the action is commenced."
In the recent case of Moore v. Myers, (Wash.) 27 P.2d 117, Mr. Justice Main, speaking for the court in holding that the appeal should be dismissed where the complaint contains numerous items, a part of which upon the trial were waived, thereby reducing the amount in controversy to less than the amount required to confer jurisdiction, said: "In the present case, the amount in controversy was the amount of the items remaining after the respondent waived certain items and thereby, in effect, struck them from the complaint. The amount over which the controversy was waged and submitted to the court was the sum of one hundred fifty dollars or less, and therefore was not within the appellate jurisdiction of this court."
We find nothing in the Washington cases cited which lends any support to plaintiff's contention that, in a garnishment proceeding, the amount in controversy is the amount sued for in the complaint or pleadings in the original action. The two cases last above cited, as supporting plaintiff's contention, merely hold that, in an appeal from an order refusing to tax costs, the appeal should not be dismissed upon the mere ground that the costs sought to be taxed are less than the amount required to confer jurisdiction upon the appellate court. Such costs, if taxed, become a part of the original judgment and, if the judgment appealed from is of a sufficient amount to confer jurisdiction upon the appellate court, it would seem that a party *Page 345
deprived of his lawful costs in the action would be as much entitled to appeal as he would if deprived of some substantive part of the claim sued on.
Under our statute, it has been repeatedly held that a garnishment proceeding "partakes of the nature of, and is in all essentials, a separate action or suit against the person garnished". Salem Mills Co. v. Lord, 42 Or. 82 (69 P. 1033, 70 P. 832); Keene v. Smith, 44 Or. 525 (75 P. 1065). And that the effect of the garnishment is to subrogate the plaintiff to the rights of the defendant and to empower him to sue the garnishee in the enforcement of such rights. Burns v. Payne, 31 Or. 100
(49 P. 884).
From the very nature of a garnishment proceeding, the enforcement of plaintiff's claim as set forth in his complaint in the original action and his enforcement in the ancillary proceeding by garnishment of a claim owing to the defendant by a third party are two entirely separate and distinct things. There is a difference between the parties and in the amounts of the two claims. The amount in controversy in the original action is the amount sued for and in the garnishment proceedings the amount sought to be garnisheed.
In Adams v. Vanhoose, 225 Ky. 606 (9 S.W.2d 722), under a statute which provided that no appeal shall be taken to the court of appeals from a judgment for the recovery of money or personal property, if the value in controversy be less than $200, plaintiff brought an action on a note and caused an attachment to issue and personal property of the value of $85 to be attached. The plaintiff recovered judgment for more than $200, but his attachment was discharged and, upon an appeal from that part of the judgment discharging the attachment, the appeal was dismissed, the court holding that the only amount involved upon the appeal *Page 346
was the value of the attached property, which, being only $85, was not sufficient to give the court jurisdiction over the appeal.
In the instant case the amount involved is only $34.20 and that sum is not sufficient under our statute to give this court jurisdiction. The appeal, therefore, is dismissed.
BEAN, CAMPBELL and BAILEY, JJ., concur. *Page 347
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-702V
UNPUBLISHED
ANTONIO PEREZ, Chief Special Master Corcoran
Petitioner, Filed: March 4, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
Respondent.
Michael Adly Baseluos, Baseluos Law Firm, PLLC, San Antonio, TX, for petitioner.
Mark K. Hellie, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On May 14, 2019, Antonio Perez filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that he suffered from Guillain-Barre Syndrome
(“GBS”) caused by an influenza (“flu”) vaccination. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On October 17, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for GBS. On February 27, 2020, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $84,265.00
comprised of $83,500.00 for pain and suffering, and $765.00 in past unreimbursed
medical expenses. Proffer at 1. In the Proffer, Respondent represented that Petitioner
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the decision will be available to anyone with access
to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
agrees with the proffered award. Id. Based on the record as a whole, I find that
Petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $84,265.00 (comprised of $83,500.00 for pain and suffering, and
$765.00 in past unreimbursed medical expenses) in the form of a check payable
to Petitioner. This amount represents compensation for all damages that would be
available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
ANTONIO PEREZ,
Petitioner,
Case No. 19-702V (ECF)
v. CHIEF SPECIAL MASTER
CORCORAN
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On May 14, 2019, petitioner filed a petition seeking compensation under the
Vaccine Act for Guillain-Barre Syndrome (GBS) that he claimed occurred within the
Table timeframe following a flu vaccine. On October 15, 2019, respondent conceded that
entitlement to compensation was appropriate under the terms of the Vaccine Act.
Thereafter, on December 20, 2019, the Special Master issued a Ruling on Entitlement,
finding that petitioner was entitled to vaccine compensation for a GBS Table injury.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be
awarded $84,265.00. The award is comprised of the following: $83,500.00 for pain and
suffering and $765.00 in past unreimbursed medical expenses. This amount represents
all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-
15(a). Petitioner agrees.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made
through a lump sum payment of $84,265.00, in the form of a check payable to petitioner.
Petitioner agrees. Petitioner is a competent adult. Evidence of guardianship is not
required in this case.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
s/ Mark K. Hellie
MARK K. HELLIE
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, D.C. 20044-0146
T: (202) 616-4208
E: [email protected]
DATED: February 27, 2020
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612 F.3d 960 (2010)
Geraldine LANG, Appellant,
v.
SOCIAL SECURITY ADMINISTRATION, Appellee.
No. 09-1927.
United States Court of Appeals, Eighth Circuit.
Submitted: February 11, 2010.
Filed: July 15, 2010.
*961 Robert J. Bruno, argued, Burnsville, MN, for appellant.
Lonnie F. Bryan, AUSA, argued, Minneapolis, MN, for appellee.
Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
BYE, Circuit Judge.
In this appeal, we are asked to decide whether a garnishment action brought by Geraldine Lang in Minnesota state court against the Social Security Administration (SSA) was removed to federal court in a timely manner. The district court held the government complied with the thirty-day time limit for removal set forth in 28 U.S.C. § 1446(b). We disagree, and therefore reverse and remand with instructions to the district court to remand this case to state court.
I
On December 26, 2007, Lang obtained a Minnesota state court judgment for unpaid child support against her ex-husband, Thomas Swanson. The judgment amounted to $9,436. At the time, Swanson was receiving Social Security disability benefits from the SSA. Five days later, on December 31, 2007, Lang served a garnishment summons on the SSA seeking to have her state court judgment satisfied out of Swanson's social security payments.[1] Lang *962 pursued the garnishment action in accordance with 42 U.S.C. § 659, under which the United States has agreed to be sued in state court garnishment proceedings brought to enforce child support obligations.
The garnishment summons complied with state law in all respects. Lang served the garnishment summons upon Anne Lewandoski at the SSA's field office in St. Paul, Minnesota. Prior to doing so, Lang's counsel contacted the SSA to determine who the SSA had designated as its "agent . . . to receive orders and accept service of process in matters relating to child support or alimony," 42 U.S.C. § 659(c)(1)(A), and was specifically instructed to serve the garnishment summons on Lewandoski.
Minnesota law requires a person served with a garnishment summons to respond to the summons by sending the creditor "a written disclosure of the garnishee's indebtedness, money, or other property owing to the debtor" within twenty days. Minn.Stat. § 571.75, subd. 1. The SSA did not comply with the garnishment summons. Instead, the SSA contacted Lang's counsel requesting a copy of the state court order of judgment for child support arrearages. Lang provided the SSA with a copy of the state court order on February 18, 2008. The SSA still did not comply with the garnishment summons by sending Lang a written disclosure. Instead, on February 25, 2008, the SSA sent Lang's counsel a letter claiming it could not comply with the garnishment summons because the state court order "does not show that it is to collect child support and/or alimony." The state court judgment expressly indicated the judgment was for child support. The SSA's letter also claimed it did not have "enough information (full name and social security number) for us to identify the person whose benefit payments it will affect." The garnishment summons specifically listed "Thomas M. Swanson" as the debtor and included his social security number.
On March 4, 2008, after the SSA had still failed to comply with the garnishment summons by providing Lang with a written disclosure in accordance with state law, Lang served the SSA with a notice of motion and motion indicating she would be asking the state court for a default judgment pursuant to Minn.Stat. § 571.82, subd. 1,[2] or, in the alternative, for leave to file a supplemental complaint against the SSA pursuant to Minn.Stat. § 571.75, subd. 4.[3] A motion hearing was set for March 25, 2008. The SSA did not serve or *963 file a response to the motion, and did not appear at the hearing.
On April 8, 2008, the state court authorized Lang to serve and file a supplemental complaint. Lang properly served and filed the supplemental complaint on April 10, 2008. The SSA did not file or serve an answer to the supplemental complaint.
On May 16, 2008, Lang properly served the SSA with a notice of motion and motion indicating she would be asking the state court for summary judgment. A motion hearing was set for June 5, 2008. Once again, the SSA did not respond to the motion or appear at the motion hearing to oppose summary judgment. As might be expected, on June 5, 2008, the state court entered judgment against the SSA in favor of Lang in the amount of $9,456.88, the amount requested in the initial garnishment summons. On June 30, 2008, after the default judgment had been entered, the SSA sent Lang's counsel a note stating "WE ARE UNABLE TO PROCESS YOUR REQUEST."
Having properly complied with state garnishment law every step of the way, and now armed with a judgment against the SSA, Lang initiated post-judgment efforts to recoup her child support arrearages. On July 15, 2008, the state court issued a Writ of Execution directed to the Ramsey County (MN) Sheriff. On August 12, 2008, the Ramsey County Sheriff served a written demand on the SSA at its field office in St. Paul, Minnesota. On August 18, 2008, Lang served a notice of motion on the SSA indicating she was seeking an order authorizing the Ramsey County Sheriff to execute the writ of execution and to seize sufficient personal property at the SSA's field office to satisfy the judgment.
On August 26, 2008now 241 days after service of the initial garnishment summons; 140 days after the service of the supplemental complaint; and 84 days after judgment had been entered against the SSAthe government filed a notice of removal in federal district court seeking to remove Lang's garnishment action from state court to federal court. In the notice of removal, the government claimed § 1446(b)'s[4] thirty-day "period for removal has not expired" on the grounds the supplemental complaint "was commenced with insufficient service of process" because it did not comply with Rule 4 of the Federal Rules of Civil Procedure.
Lang timely moved the district court to remand the garnishment action to state court. Lang argued the garnishment summons should be considered the "initial pleading" for purposes of starting § 1446(b)'s thirty-day time limit, rendering the removal untimely. Alternatively, Lang argued even if the supplemental complaint was the "initial pleading" for purposes of § 1446(b)'s thirty-day period, the removal was still untimely because the supplemental complaint had been served 140 days before the government removed the case to federal court.
*964 In response, the government argued the supplemental complaint was the "initial pleading." The government further argued the notice of removal was timely because the supplemental complaint had not been properly served. See Murphy Bros. Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 348, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) (indicating formal service is required for § 1446(b)'s thirty-day period to begin to run). The government's argument was based on its claim that service of the supplemental complaint was insufficient because it did not comply with Rule 4 of the Federal Rules of Civil Procedure. More specifically, the government argued Lang was required to, and did not "deliver a copy of the summons and the complaint to the United States attorney for the district where the action is brought." Fed.R.Civ.P. 4(i)(1)(A)(i).[5]
The district court agreed with the government that the supplemental complaint, rather than the initial garnishment summons, was the "initial pleading" for purposes of § 1446(b)'s thirty-day period for removing an action. The district court further agreed with the government's contention that the thirty-day period had not yet run because service of Lang's supplemental complaint did not comply with Rule 4 of the Federal Rules of Civil Procedure. The district court then denied Lang's motion to remand the case to state court. In addition, for reasons we need not discuss for purposes of resolving the timeliness issue, the district court thereafter exercised jurisdiction over the action and granted the government's motion to dismiss. Lang filed a timely appeal contending, inter alia, the district court erred when it concluded the government's removal was timely.
II
We review de novo a district court's denial of a motion to remand a case to state court. Menz v. New Holland N. Am., Inc., 440 F.3d 1002, 1004 (8th Cir. 2006).
On appeal, Lang contends the district court erred when it determined the supplemental complaint (served 140 days prior to the government's notice of removal) was the initial pleading for purposes of § 1446(b), rather than the garnishment summons (served 241 days prior to removal). We have not previously decided whether, for purposes of a Minnesota state garnishment action, the garnishment summons or the supplemental complaint triggers § 1446(b)'s thirty-day time period for removal. The same question was raised in Koehnen v. Herald Fire Insurance Co., 89 F.3d 525 (8th Cir.1996), but the manner in which Koehnen was resolved made it unnecessary to decide the question. See id. at 529 n. 5.[6]
It is again unnecessary for us to decide which event triggers the thirty-day period, because the government's removal was untimely whether the clock started to run when the initial garnishment summons was served or when the supplemental complaint was served. The government's argument turns entirely on the premise that *965 service of the supplemental complaint was insufficient to start the thirty-day time period because Lang did not comply with Rule 4 of the Federal Rules of Civil Procedure.
There is no support for the remarkable and unprecedented claim that service of certain selective filings in a state court garnishment action must comport with the Federal Rules of Civil Procedure. State rules of procedure clearly governed Lang's state court garnishment action, including the service of the supplemental complaint, a part of the state garnishment process. See, e.g., Winkels v. George A. Hormel & Co., 874 F.2d 567, 568 (8th Cir.1989) ("[S]tate procedural rules govern cases originating in state court until removed to federal court."); see also Minn.Stat. § 571.82, subd. 4 ("The supplemental complaint shall be served upon the garnishee and the debtor and any other parties. The parties served shall answer or respond pursuant to the Minnesota Rules of Civil Procedure for the District Courts, and if they fail to do so, judgment by default may be rendered against them pursuant to section 571.82.").
The district court interpreted 42 U.S.C. § 659(a) in such a way as to conclude the filing of the supplemental complaint changed the "nature" of the state court garnishment action into something other than a state court garnishment action, giving "rise to a new, direct claim against the SSA." Even assuming that is true, it does not follow that the supplemental complaint triggered application of the Federal Rules of Civil Procedure. A supplemental complaint is an integral part of Minnesota's garnishment process, which a creditor may resort to whenever a garnishee fails to provide a written disclosure in response to the garnishment summons (as was the case here) or where the garnishee denies it owes money to the debtor. Service of filings in a state court garnishment are subject to state procedural rules before a creditor serves a supplemental complaint, remain subject to state procedural rules when a creditor serves a supplemental complaint, and remain subject to state procedural rules after a creditor serves a supplemental complaint (unless and until the action is removed to federal court). More to the point, to whatever extent the supplemental complaint may have changed the government's status in the state court garnishment action, the supplemental complaint did not, and could not, convert the state court proceeding itself into a federal court proceeding which would trigger application of the Federal Rules of Civil Procedure.
In addition to advocating an unprecedented application of the Federal Rules of Civil Procedure to state court proceedings, the government's argument runs directly contrary to the very purpose of § 659, which is to have the government treated the same way a private person would be treated with respect to legal process served in a state court garnishment action brought to satisfy a child support obligation. Section 659 is "designed to facilitate garnishment of federal funds where the intended recipient has failed to satisfy a legal obligation of child support." Rose v. Rose, 481 U.S. 619, 634, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987). "The provision was intended to create a limited waiver of sovereign immunity so that state courts could issue valid orders directed against agencies of the United States Government attaching funds in the possession of those agencies." Id. at 635, 107 S.Ct. 2029.
In order to facilitate the goal of the statute, the United States is treated the same as a private person would be treated for purposes of "legal process brought . . . by an individual obligee, to enforce the legal obligation of the individual *966 [i.e., a person entitled to moneys due from or payable by the United States] to provide child support or alimony." 42 U.S.C. § 659(a). In other words, whether government money due or payable to someone who owes child support will be subject to legal process must be "determined in accordance with State law in like manner as if the United States were a private person." United States v. Morton, 467 U.S. 822, 831 n. 13, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984) (citations omitted). "Congress intended the Government to receive the same treatment as a private employer with respect to garnishment orders." Id. at 831, 104 S.Ct. 2769.
It is axiomatic that state rules of civil procedure apply to state court actions, and the federal rules of civil procedure do not. For that reason alone, Lang did not have to comply with Rule 4 of the Federal Rules of Civil Procedure when serving the SSA with a copy of a supplemental complaint in a state court garnishment action. The provisions of § 659, however, make it even clearer that Lang did not have to comply with the Federal Rules of Civil Procedure when serving her supplemental complaint on the SSA. The position advanced by the government thwarts the very purpose of § 659 by applying different and more stringent rules to the legal process involved in a state court garnishment action brought against the United States. Minnesota practitioners are not required to comply with both state and federal rules of procedure when pursuing a child support garnishment action against the United States in Minnesota state courts.
The government urges us to leave the district court's decision intact, claiming this appeal has been mooted by a subsequent order issued in state court authorizing the SSA to garnish 10% of Swanson's monthly disability benefits to satisfy Lang's child support arrearages.[7] We disagree. The "test for mootness . . . is whether the relief sought would, if granted, make a difference to the legal interests of the parties[.]" Air Line Pilots Ass'n, Int'l v. UAL Corp., 897 F.2d 1394, 1396 (7th Cir.1990) (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). The relief Lang seeks is to have the untimely removed action remanded to state court. She also seeks reversal of the district court's dismissal of her action, which eviscerated the $9,456.88 judgment she obtained in state court. The relief sought here is different than the relief Lang obtained in state court and, if granted, would make a difference to her legal interests. The relief sought herea remand to state court and a reinstatement of a state court judgment for a lump sumdoes not match the relief obtained in state court, which is an order merely authorizing garnishment of 10% of Swanson's monthly disability benefits. The government has not presented any evidence that Lang's child support arrearages have now been fully paid, or even whether garnishment is now taking place. "Relief granted in another tribunal can moot a claim, but only where the relief granted is complete." Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 746 (8th Cir.2004).
In arguing this appeal is moot, the government contends Lang is not entitled to the $9,456.88 judgment she obtained in state court on the grounds 42 U.S.C. § 659 does not waive sovereign immunity for state court garnishment actions to the *967 point that a judgment can be entered directly against the United States. That is an interesting issue, but one on which we express no opinion at this time. The government's argument goes to the merits of the case. Our mootness inquiry focuses on whether the relief Lang seeks here is different than the relief she obtained under the subsequent state court order, not which party may ultimately be correct about the propriety of the relief sought. The government did not provide the district court, or us, with any sound basis for reaching the merits. Whatever challenges the government may have to the validity of the judgment, this untimely removed action is clearly not the appropriate forum for addressing them. The only reason the government has given us for exercising jurisdiction is the unsupportable claim that the Federal Rules of Civil Procedure govern the service of filings in a state court garnishment action. Having been presented with no sound reason for exercising jurisdiction, we must remand this matter to state court without reaching the merits.
III
We vacate the district court's order and judgment of dismissal, and remand this untimely-removed action to the district court with directions to remand the case to state court.
NOTES
[1] The garnishment summons listed the amount due and owing as $9,456.88. The parties do not explain the discrepancy between the state court judgment and the amount sought to be garnished. We presume the slight increase is due to accrued interest. See Minn.Stat. § 548.091, subd. 1a (providing for accrued interest on child support judgments).
[2] Minn.Stat. § 571.82, subd. 1 provides that "[i]f a garnishee fails to serve a disclosure as required . . . the court may render judgment against the garnishee . . . for an amount not exceeding 110 percent of the amount claimed in the garnishment summons." In this case, the amount claimed in the garnishment summons was $9,456.88.
[3] Minn.Stat. § 571.75, subd. 4 provides in relevant part as follows:
[W]here the garnishee denies liability, the creditor may move the court . . . for an order making the garnishee a party to the civil action and granting the creditor leave to file a supplemental complaint against the garnishee and the debtor. The supplemental complaint shall set forth the facts upon which the creditor claims to charge the garnishee. . . . The supplemental complaint shall be served upon the garnishee and the debtor and any other parties. The parties served shall answer or respond pursuant to the Minnesota Rules of Civil Procedure for the District Courts, and if they fail to do so, judgment by default may be rendered against them pursuant to section 571.82.
[4] Section 1446(b) provides:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable[.]
28 U.S.C. § 1446(b).
[5] The "districts" referred to in Rule 4(i)(1)(A)(i) of the Federal Rules of Civil Procedure are the ninety-four districts in the federal court system. The garnishment action was not brought in one of the district courts within the federal court system. The state court garnishment action was brought in the First Judicial District for the state of Minnesota, comprised of seven Minnesota counties (Carver, Dakota, Goodhue, LeSueur, McLeod, Scott, and Sibley).
[6] In Reko v. Creative Promotions, Inc., 70 F.Supp.2d 998 (D.Minn. 1999), a district court concluded the trigger for the thirty-day removal period was the date the garnishment creditor served the motion for leave to file a supplemental complaint. Id. at 1001.
[7] The state court order was entered only after, and as a consequence of, the district court's erroneous decision to exercise jurisdiction over this matter and dismiss Lang's action. The state court noted the district court "held the garnishment invalid" in granting the SSA's motion to intervene in the state court action. See Appellee's Addendum at A-13.
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1470V
(not to be published)
REBECCA EUGLEY,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 6, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 6, 2017, Rebecca Eugley filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
October 22, 2016. (Petition at 1, 4-5). On November 6, 2019, a decision was issued
awarding compensation to Petitioner based on the parties’ stipulation. (ECF No. 64).
Petitioner has now filed a motion for attorney’s fees and costs, dated January 14,
2020 (ECF No. 70), requesting a total award of $62,585.07 (representing $60,599.10 in
fees and $1,985.97 in costs). In accordance with General Order #9 Petitioner filed a
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
signed statement indicating that he incurred no out-of-pocket expenses. (ECF No. 70-3).
Respondent reacted to the motion the same day indicating that he is satisfied that the
statutory requirements for an award of attorney’s fees and costs are met in this case and
defers to the Court’s discretion to determine the amount to be awarded. (ECF No. 71).
Petitioner then filed his reply requesting the entry of a decision awarding the requested
amount in full. (ECF No. 72).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health &
Human Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
2
A. Hourly Rates
Petitioner requests the following rates of compensation for the work of her
attorneys: for Mr. Altom Maglio, $362.00 per hour for work performed in 2017; and for Mr.
Isaiah Kalinowski, $358 for work performed in 2017, $368 for work billed in 2018, and
$383 for work billed in 2019. (ECF No. 70-1 at 35). Petitioner also requests rates ranging
from $105.00 per hour to $154.00 per hour for paralegal work, depending on the individual
paralegal and the year of the work. (Id). The rates requested are consistent with what
Maglio Christopher and Toale, PA attorneys and paralegals have been awarded for their
work in the Vaccine Program. Accordingly, no adjustment to the requested rates is
necessary.
For time billed in 2020, Mr. Kalinowski is requesting the increased rate of $405.00
per hour for his time billed and the rate of $160 for time billed by his paralegals. Based
on my experience I find the requested increase for time billed in 2020 to be reasonable
and award it herein.
ATTORNEY COSTS
Petitioner requests $1,985.97 in overall costs. (ECF No. 70-2 at 1). This amount
is comprised of obtaining medical records, travel costs and the Court’s filing fee. I have
reviewed all of the requested costs and find the overall amount to be reasonable and shall
award it in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $62,585.07 (representing $60,599.10 in fees and $1,985.97 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 2
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
3
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1611V
(not to be published)
SHEREE GARRETT,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 6, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 26, 2017, Sheree Garrett filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”), which she contends meets the Table definition of SIRVA, after
receiving the influenza vaccination on October 28, 2014. (Petition at 1, ¶¶ 1, 8). On
February 14, 2020, a decision was issued awarding compensation to Petitioner based
on the parties’ stipulation. (ECF No. 56).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated February 24,
2020 (ECF No. 60), requesting a total award of $37,733.29 (representing $36,956.40 in
fees and $776.89 in costs). In accordance with General Order #9 Petitioner filed a signed
statement indicating that she incurred no out-of-pocket expenses. (ECF No. 60-4).
Respondent reacted to the motion on February 24, 2020 indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case
and defers to the Court’s discretion to determine the amount to be awarded. (ECF No.
61). That same day, Petitioner filed a reply indicating Petitioner did not intend to file a
substantive reply. (ECF No. 62).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $37,733.29 (representing $36,956.40 in fees and $776.89 in costs) as a
lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. In
the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court),
the Clerk shall enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
2
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0489V
(not to be published)
AMY GARZA,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 6, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On April 3, 2018, Amy Garza filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”). Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of her influenza (“flu”) vaccination on December 22,
2016. (Petition at 1-5). On February 14, 2020, a decision was issued awarding
compensation to Petitioner based on the parties’ stipulation. (ECF No. 42).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated February 19,
2020 (ECF No. 46), requesting a total award of $37,717.55 (representing $36,126.60 in
fees and $1,590.95 in costs). In accordance with General Order #9 Petitioner filed a
signed statement indicating that she incurred no out-of-pocket expenses. (ECF No. 46-
3). Respondent reacted to the motion on February 28, 2020 indicating that he is satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this
case and defers to the Court’s discretion to determine the amount to be awarded. (ECF
No. 48). On March 4, 2020 Petitioner filed a reply requesting the entry of a decision
awarding the requested amount in full. (ECF No. 49).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health &
Human Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
2
ATTORNEY FEES
A. Hourly Rates
Petitioner requests the following rates of compensation for the work of her
attorneys: for Altom Maglio, $362.00 per hour for work performed in 2017 and for Mr.
Isaiah Kalinowski, $358 for work billed in 2017, $368 for work billed in 2018, and $383 for
work billed in 2019. (ECF No. 46-1 at 25). Petitioner also requests rates ranging from
$145.00 per hour to $154.00 per hour for paralegal work, depending on the individual
paralegal and the year of the work. (Id). The rates requested are consistent with what
Maglio Christopher and Toale, PA attorneys and paralegals have been awarded for their
work in the Vaccine Program. Accordingly, no adjustment to the requested rates is
necessary.
For time billed in 2020, Mr. Kalinowski is requesting the increased rate of $405.00
per hour for his time billed and the rate of $160 for time billed by his paralegals. Based
on my experience I find the requested increase for time billed in 2020 to be reasonable
and award it herein.
ATTORNEY COSTS
Petitioner requests $1,590.95 in overall costs. (ECF No. 46-2 at 1). This amount
is comprised of obtaining medical records, travel costs and the Court’s filing fee. I have
reviewed all of the requested costs and find the overall amount to be reasonable and shall
award it in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $37,717.55 (representing $36,126.60 in fees and $1,590.95 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 3
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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This is suit seeking to restrain the building or maintaining of an apartment house on certain lots in Goldsmith's addition to Portland.
On October 28, 1910, the Giles Investment Company, a corporation, conveyed Lots 16 and 17 of Block 11, Goldsmith's Addition to Portland, to R.W. Schmeer, trustee. The consideration contributed by the trustee and seven others, of which plaintiff was one and who contributed one-ninth thereof, for the conveyance, was $12,000 — $4,500 in cash and the balance secured by a mortgage. On the same date, defendant, R.W. Schmeer, executed a declaration of trust in writing showing that he held the legal title for the use and benefit of himself and the seven others and further declared that:
"* * * and I do, for myself, my heirs, executors and administrators, covenant and agree to and with said parties and each of them, and with their and each *Page 319
of their executors, administrators, and assigns, that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey the said real property by a good and sufficient deed to the purchaser of said property when the same is sold and after deducting any and all sums paid for assessments, taxes, and charges of every kind that may have been paid or advanced by me for the benefit of said property and the payment of said mortgage and interest, that the balance remaining shall be paid to the several parties in interest in proportion to their payments on account of the said purchase price, assessments, taxes, costs, mortgage and interest."
This declaration of trust was accepted by his trustors by the following writing:
"The undersigned, property owners and residents in the vicinity of the hereinbefore described real property, for the purpose of preventing the purchase of said real estate by a stranger and the possible erection thereon of an apartment house or flats, which we consider will be detrimental to the appearance and value of our several residences and lots, have appointed R.W. Schmeer our Trustee to purchase and hold the title of said real estate, and we have contributed to the said purchase price the several amounts as hereinbefore stated, and we hereby further agree to reimburse our said Trustee on demand for any and all sums paid for assessments, taxes and charges of every kind that he may pay on account of said property and said mortgage and interest.
"We hereby agree to the terms and conditions of the Declaration of Trust signed by R.W. Schmeer."
This acceptance was signed by M.G. Thorsen, Mrs. R. Becker, J.R. Krausse, Frank A. Heitkemper, A.L. Levy, C.J. Cook and William Gadsby, the trustors, who with the trustee, Schmeer, had contributed to the purchase price.
In 1914, the majority of the trustors requested the trustee to dispose of the property without restrictions *Page 320
as to apartment houses and flats. The plaintiff was apprised of the desire on the part of the majority and wrote the trustee that while he would very much regret to see an apartment house erected on these lots, closed his letter by saying:
"However, I would not like to be the only one to stand out and if the others concerned would prefer to sell, I would not feel like making any objections provided we could sell for a price which would not mean a loss."
On March 23, 1922, the trustee wrote the plaintiff informing him that at a meeting of the owners the trustee was instructed to sell without restriction as to apartment house and unless objection was made within five days the trustee would offer the property for sale on said terms. Plaintiff made no reply.
The trustee made no sale of the lots and the matter drifted along until about September 1, 1925, when the beneficiaries executed an option to R.W. Schmeer to the lots in question, permitting him to buy said lots without restriction as to their use. The interest of some of the beneficiaries became involved and it required some time to adjust the transfer so as to enable the trustee to convey good title. By its terms, the option would expire on November 1, 1925. However, all the other beneficiaries except plaintiff completed the contract of sale to defendant Schmeer after the expiration of the option. Plaintiff was aware of these transactions. He however refused to complete the contract of sale to Schmeer because the option to purchase had not been exercised within the time therein limited. Notwithstanding that plaintiff knew of the action of defendant Schmeer in buying the interest of *Page 321
the other beneficiaries after the expiration of the option, he gave no notice of his intention to rely upon the terms of the option or to cancel the same, until January, 1926. Thereafter and on November 29, 1926, defendant Schmeer, as trustee and as an individual, conveyed, without restrictions as to apartments or flats, the north one-half of these lots to defendant Larrowe. The trustee thereupon notified plaintiff of the sale and the amount of the purchase price and on December 18, 1926, sent him a check for his proportionate share. This check plaintiff retained in his possession until January 8, 1927, when he returned it to the trustee with the advice that he refused to accept it or sanction the sale.
Defendant Larrowe began the construction of an apartment house upon these lots within a few days after his purchase and completed the excavation for the basement during the month of December, 1927. This construction work was within eighty feet of plaintiff's residence and must have been known to him during its progress. He was informed, as early as January 1, 1927, by the contractor on the job, that defendant Larrowe was constructing an apartment house, but made no move in the matter until January 12, 1927, when he notified Larrowe not to proceed further in the construction.
On March 9, 1927, when the building was about one-half completed, the complaint in this suit was filed, alleging in effect the above facts and further alleging that the trustee, the plaintiff and the other trustors entered into an agreement whereby the trustors and the trustee purchased the lots and,
"* * * when so purchased should never be sold to a stranger for the purpose of building or using on either or both of said lots, or with authority to any *Page 322
purchaser to build or use thereon, an apartment house or flats; but it was agreed that the property should be sold thereafter with a restriction against the erection thereon of an apartment house or flats.
"In order to effect the purpose of said joint undertaking, as aforesaid, and for no other purpose, it was mutually agreed between the contributors to appoint the defendant, R.W. Schmeer, one of the contributors, as the agent of the contributors to effect the purchase of the said property for the benefit of all the members of said joint enterprise, and it was agreed that the legal title of the said property should be taken in the name of the said R.W. Schmeer, to be held by him as trustee for the benefit of and to effect the purpose of the contributors, as aforesaid, and for no other purpose, and the said defendant, R.W. Schmeer, as one of the parties to said joint agreement, agreed with the others to accept said agency and said trusteeship according to the terms of said appointment, and not otherwise."
Plaintiff had contributed one-ninth of the purchase price and was therefore the equitable owner of an undivided one-ninth interest in said property.
Plaintiff attached a copy of the declaration of trust made by defendant Schmeer, the salient parts of which have been heretofore quoted, and made the same a part of his complaint. He further alleged:
"That in and by the said declaration, the said R.W. Schmeer, intended to declare the terms of his trusteeship and his powers and duties thereunder in accordance with the terms of the agreement hereinbefore set out, and to declare that he held said property for the purpose of preventing a stranger from buying said property and building thereon an apartment house or flats, and particularly intended to mean by the following words in the said declaration, `that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey the said real property by a good and sufficient deed to the *Page 323
purchaser of said property,' that he was to dispose of the said real property to effectuate the purpose of the said trust as hereinbefore recited, and not otherwise, and to sell the same subject to the restriction against apartment houses or flats, and not otherwise, and that the good and sufficient deed in the declaration was to be a good and sufficient deed, subject to the said restriction, and not otherwise, and before and at the time of accepting said trusteeship agreed orally to the same effect with plaintiff and the other contributors."
He then alleged, in substance, the sale by Schmeer to Larrowe without restrictions as to apartment houses or flats, and the construction of the apartment house by Larrowe, and that he was damaged thereby and asked for a decree and judgment that the apartment house be abated and removed and the lots restored to their original condition.
To this complaint, defendant filed a demurrer which was sustained by the circuit court. Plaintiff refusing to further plead, the suit was dismissed and the cause appealed to this court.
On that state of the pleadings, this court reversed the decree and judgment and remanded the cause with permission to plaintiff to amend his complaint and ask for an alternative decree for damages in the event the trial court should find that the removal of the apartment house could not be effected except at great loss to defendant Larrowe: Heitkemper v. Schmeer, 130 Or. 644
(275 P. 55, 281 P. 169).
Thereafter, plaintiff amended his complaint so as to conform to the suggestion of this court, said amendments not being material to the issues herein presented and said amended complaint being in effect as hereintofore set out, except that plaintiff alleged damages *Page 324
in the sum of $8,776.23 and changed the prayer to the alternative.
To the amended complaint, defendant Schmeer filed an answer in substance admitting the purchase of the lots by him as trustee, the execution of his declaration of trust, the execution of the writing made by the other beneficiaries in acceptance of his declaration of trust, but denied that there was any other agreement or understanding on his part or to his knowledge except as stated in said declaration and denying generally that plaintiff suffered any damages by reason of the sale of the property without restrictions as to apartment houses or flats. He alleged that in 1914 the plaintiff had waived any right to have the property sold with such restrictions and therefore should be estopped from now claiming the same, and further alleged that in 1922 plaintiff consented to a sale of the lots without such restriction; that in 1925 the plaintiff again waived the right to have such restrictions inserted in any conveyance executed by the trustee, by giving defendant Schmeer an option to purchase said property without such restrictions with the knowledge and information that Schmeer would not purchase the interest of any of the trustors unless he could get the interest of all the trustors and without restrictions as to apartment houses and flats and that plaintiff knew that Schmeer was completing the purchase from the other trustors after the option had expired but that plaintiff gave no notice until January, 1926, of his refusal to go through with the deal, therefore plaintiff should be estopped from now asserting any rights under such restrictions. He further alleged laches on the part of plaintiff in that he was aware on January 1, 1927, that defendant Larrowe was constructing an *Page 325
apartment house on those lots and made no objection until January 12, 1927, and that, notwithstanding defendant Larrowe continued the construction of the apartment house, this suit was not filed until March 9, 1927, at which time the building was 50 per cent completed; the building was to cost $65,000.
The defendant Larrowe filed an answer to the same tenor and effect as that of the defendant Schmeer and further alleged that he had no knowledge or information of any restriction being against said lots until after he made the purchase and expended large sums of money on the property.
The plaintiff, in his reply, denied all the new matter set up in the answer of either defendant and asserted that this court, on the former appeal, placed a construction upon the declaration of trust and the acceptance of said declaration and that the parties should be bound by that decision.
The cause came on for trial and, upon hearing the testimony and argument of counsel, the court made findings in favor of plaintiff and entered an alternative decree and judgment, decreeing that the maintenance of the apartment house constructed on said lots should be abated and the lots restored to their original condition within ninety days or, in default thereof, the plaintiff recover of and from defendant and each of them the sum of $3,000 in full for all damages occasioned by the building of said apartment house. Defendants appeal.
Appellants contend that the circuit court erred in holding that the declaration of trust, signed by defendant Schmeer, and the writing, signed by the beneficiaries, should be construed as one instrument. *Page 326
"No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law." Oregon Code 1930, § 9-905.
The evidence is not clear whether the two papers, the declaration of trust and the acceptance, were attached together at the time of their execution. The complaint would rather intimate they were not. Paragraph XI of the complaint in support of the declaration of trust alleges:
"That when copies of the declaration so made as aforesaid by the said R.W. Schmeer, were delivered to plaintiff and the other contributors, they, in order to make more clear and certain the meaning of said declaration of trust, signed and executed and delivered to the said R.W. Schmeer, the following writings:"
Then follows a copy of the acceptance of the declaration of trust hereinbefore quoted. We do not attach any particular importance in the instant case as to whether these papers were or were not physically attached at the time of their execution. In any event, each writing was practically contemporaneous and it appears that there has never been any question but that the trustee and each of the beneficiaries knew all about both writings all the time. Each writing clearly refers to the same transaction. One writing having been executed by the party "creating the trust" and the other by the party "declaring the trust", they should be read together. *Page 327
This assignment of error is predicated on the circuit court holding that the declaration of trust and the written acceptance thereof, when read as one instrument, prohibits the trustee from ever conveying the property held in trust without restrictions as to apartment houses or flats.
The law favors the greatest latitude of individual freedom of contract but does not look with favor upon limitations upon the use of real property. Any restrictions on the use of such property, must clearly appear in the instrument creating such restrictions, all doubts being resolved in the favor of the untramelled use: Gerling v. Lain, 269 Ill. 337 (109 N.E. 972);Van Duyne v. Chase, 149 Iowa 222 (128 N.W. 300); Casterton v.Plotkin, 188 Mich. 333 (154 N.W. 151); Fortesque v. Carrol,76 N.J. Eq. 583 (75 A. 923, Ann. Cas. 1912A, 79); Hunt v. Held,90 Ohio 280 (107 N.E. 765); Crawford v. Senosky, 128 Or. 232
(274 P. 306). With this view of the law in mind, we proceed to analyze the declaration of trust.
Here were eight people owning, and all but one occupying as a residence, what they considered, at that time, residential property scattered over five blocks in what was Goldsmith's addition to the city of Portland. They jointly purchased the two lots in Block 11, in 1910. Their purpose in purchasing was to prevent the sale to a stranger and the possible erection of an apartment house or flats thereon at that time. There were no building restrictions on any of the other lots in any of the blocks in which either of these persons owned or occupied his residence. In making the purchase, they made use of an agent or trustee to hold the legal title. The conveyance named the grantee therein, defendant R.W. Schmeer, as trustee without *Page 328
disclosing either the terms of the trust, or the beneficiaries. After the passage of the law in 1919 (Oregon Code 1930, § 63-110) the parties knew that anyone buying the property from the trustee might be an innocent purchaser; that a deed from the trustee as grantor would be prima facie evidence of title in the grantee.
In 1910, there were many vacant lots without restrictions as to their use, over which the trustors had no control, in the five blocks in which the trustors' individual residences were located. They must have anticipated the change that has actually occurred in the locality from a strictly residential district to one where apartments, flats, etc., have been built. Almost one-half of the block on which the home of Mr. Levy, one of the trustors, is located, and immediately south of Block 11, is occupied with apartments or flats. It would be very natural for the trustors, knowing the difficulty in getting eight men to agree as to the proper time to make a sale of said property and under what conditions the sale should be made, to place entirely in the hands of the trustee the power to determine when to make the sale and the conditions and the restrictions to be placed against said property.
The trustee did,
"Covenant and agree * * * that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey said real property by a good and sufficient deed to the purchaser of said property, when the same is sold."
Plaintiff now contends that, by the above declaration, R.W. Schmeer intended to, *Page 329
"* * * declare that he held said property for the purpose of preventing a stranger from buying the said property and building thereon an apartment house or flats and particularly intended to mean in the following words in the declaration, `that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey said real property by a good and sufficient deed to the purchaser of the said property'; that he was to dispose of said property to effectuate the purpose of said trust * * * to sell the same subject to the restriction against apartment houses or flats and before and at the time of accepting the trusteeship, agreed orally to the same effect with the plaintiff and other contributors."
There is no evidence of such oral agreement. It is remarkable that if the understanding of said declaration, at the time it was made, was as now claimed by plaintiff, that nothing was mentioned of any restriction to be inserted in the conveyance which the trustee covenanted to make to the purchaser. The disposal of the property was to be left to the trustee's best judgment.
It appears that the man who made the sale to the beneficiaries represented that he had a prospective buyer who desired to and in a short time would buy this property from the trustee and erect thereon a residence. There appears to have been no doubt in the minds of the beneficiaries but that a sale would be made to said prospective buyer and that it would not be necessary to place restrictions in the deed. All the contributors who testified agree that the understanding was that it would be necessary to hold the property but for a very short time. The beneficiaries were all experienced business men of Portland, so that the evidence that a sale would be consummated shortly *Page 330
must have been very convincing. There is no evidence of an intention to hold the property for a considerable length of time, or that it was never to be sold without restrictions against apartment houses and flats. Needless to say, the prospective purchaser failed to materialize. In the meantime the property kept decreasing in value until at the time of the sale by the trustee it would bring about only one-half of what the trustee paid for it.
Plaintiff contends that what is meant by the statement in the declaration of trust, in which defendant Schmeer covenanted to convey the said real property by a "good and sufficient deed", is that the deed that the trustee should make in case of sale would be a "good and sufficient deed" to protect the restrictions. The words "good and sufficient deed" are words of well-known and generally accepted import. They are in common usage in contracts for the sale of land.
"If it had been the intention of the defendant to covenant to execute and deliver a deed without warranty, he should not have used the words `good and sufficient'." Seaboard Air Line Ry. Co. v. Jones, 120 S.C. 354 (113 S.E. 142).
In a specially concurring opinion in the above case, Cothran, J., said, "I concur upon the ground that a covenant to convey by a `good and sufficient deed' means by general warranty." (Citing many cases.)
"It is a general rule that `an agreement to sell land, and to give a good and sufficient deed of it, means a deed that will convey a good title to the land'. Linton v. Allen, 147 Mass. 231,17 N.E. 523." New York N.H. H.R. Co. v. Butter, 276 Mass. 236
(176 N.E. 797).
"The accepted rule is that upon agreement for the sale of land the vendor must be considered as contracting *Page 331
for a general warranty deed unless the contrary is clearly shown. In this case, the contract requires the vendor to execute and deliver a good and sufficient deed of conveyance, and the trial court did not err in construing this to require the vendor to convey by deed with general warranty." Ford v. Street, 129 Va. 437
(106 S.E. 379).
"A good and sufficient deed is a marketable deed — one that will pass a good title to the land it purports to convey. We do not agree with counsel that a stipulation in a contract providing that the grantor shall convey `a good and sufficient deed', is satisfied by a conveyance of any title he may have, whether it be good or bad." Hall v. McKee, 147 Ky. 841 (145 S.W. 1149).
To adopt the meaning of those words now claimed by plaintiff would be giving words of ordinary use and acceptation a strained and unusual construction: Oregon Code 1930, § 9-217. There are no facts or circumstances in the instant case that would justify the court in so construing them.
There is no allegation in the complaint, nor is there any evidence, that the trustee did not use his best judgment in making the sale.
To adopt the construction claimed by plaintiff, would be adding to the trust agreement covenants which neither the trustors nor the trustee made, to say nothing of the statute which provides that when the terms of an agreement have been reduced to writing it is to be construed as containing all those terms and excludes all other evidence of its terms except the writing, with exceptions not material to this case: Oregon Code 1930, § 9-212. We would also have to ignore the provision of the Code defining the office of the judge in the construction of an instrument, "not to insert what has been omitted": Oregon Code 1930, § 9-214. *Page 332
It is undisputed and the fact is that the locality which the trustors wished to protect had been invaded by the erection of many commercial buildings, such as the zoning ordinance permits, some considerable time before the sale by the trustee to defendant Larrowe. In 1924, when the city adopted the zoning ordinance, the property of the trustors, including that of plaintiff was designated as Zone 2, territory in which apartment houses, flats, etc., might be built. But it is claimed by the respondent that this court passed upon the meaning of the declaration of trust and its acceptance thereof when this case was before the court on demurrer: Heitkemper v. Schmeer, supra. What this court passed upon at that time was whether or not the complaint stated a cause of suit. This court did not say that the two papers referred to as the declaration of trust and the acceptance thereof, when read as one, of itself showed a state of facts upon which plaintiff might recover or that a mere inspection of the deed which the trustee held was sufficient to put a purchaser on notice of the trustor's interest therein. The plaintiff, in his complaint, did not rely upon the written declaration of trust but alleged a further agreement made at the time the property was bought by the trustee, portions of said complaint referring to said agreement being above quoted. The complaint with such allegations was sufficient. But, when issue was joined and the agreement denied, it was incumbent upon the plaintiff to prove the allegation relating to such agreement. The plaintiff must have thought that the agreement, alleged in addition to the declaration and acceptance, was necessary to his cause or he would not have so pleaded.
It will be observed that this suit, as originally begun, was to prevent the building of an apartment *Page 333
house or flats on these two lots, alleging that such a building would greatly diminish the value of plaintiff's property.
The plaintiff having alleged that he was damaged by reason of the construction of an apartment house, it was incumbent upon him to establish his allegation by a preponderance of the evidence. It would seem that the preponderance of evidence was entirely against this allegation. Apart from plaintiff's own testimony and that of his wife, the only other witness who testified that the plaintiff's property was damaged was Mr. Dean. He testified that the property was damaged to the extent of $6,000. In stating how he arrived at that conclusion, he says, in effect, that notwithstanding that the property is located in an unrestricted district, as to apartment houses, and that many such buildings have already been erected therein, not until some one actually began the construction of such a building in the immediate vicinity of plaintiff's residence did the lack of restrictions affect its value. His testimony is not borne out by the general experience of property owners under the zoning ordinance of Portland.
On the other hand, Mr. A.H. Hickman, with an experience of twenty-three years in the realty business in Portland, Mr. A.R. Ritter, with twenty-one years of experience in the same business in Portland, Mr. A.C. Callan, a resident of Portland since 1889 and in the real estate business since 1911, and Mr. Henry E. Reed, who has lived in Portland for sixty years and has been in the real estate business continuously for the past seven years, specializing in appraisals, and who had been in the real estate business formerly as early as 1896 and who served for many years as *Page 334
assessor of Multnomah county and is generally recognized as an authority on real estate values in Portland, all testified, in effect, that it is the restriction to residence property in a whole district or zone that gives the property in such districts value as residential property. The fact that property is located in a district without such restrictions, and has already been invaded by commercial buildings, is what decreases its value as residential property rather than the actual construction of one more commercial building. They further testified that the building of the apartment house in suit did not damage or lessen the value of plaintiff's residential property.
The reason given by the beneficiaries for their purchase of the property was because they believed that the erection thereon of apartment houses or flats "will be detrimental to the appearance and value of our several residences and lots". The value they had in mind must have been its commercial value. There is no evidence that the building in question had detracted from the appearance of plaintiff's residence and the preponderance of the testimony is that it has not diminished its value.
The evidence shows that such restrictions of the use of property tend to diminish its value unless it is situate in a restricted residential district. Placing restrictions as to apartments or flats on only two lots in a district where apartment houses and flats already exist and all other lots are unrestricted would greatly diminish the value of the lots so burdened. This is abundantly established by the history of the lots under consideration. The lots in suit have no peculiar residential value over and above that of the other lots in the vicinity. It is not likely that any one desiring to *Page 335
buy strictly residential property would purchase property with such restrictions when there were so many lots without restrictions and without buildings in the vicinity. The purpose for which the lots were acquired has ceased to exist. Restrictions on this tract are no longer of value to plaintiff. The trustee has held the property for more than a reasonable length of time.
We must remember that this is not a suit to abate a nuisance, but to enforce the terms of a trust regarding certain restrictions. The character of the territory sought to be protected having so changed, the purposes of the trust have been defeated by causes outside the trust agreement. The purpose was to protect a district, not an individual residence.
The judgment of the trial court on a question of fact is entitled to weight and consideration but a suit in equity must be tried de novo in this court and while we give the lower court's opinion on questions of fact consideration, this court is by no means bound by the trial court's conclusions. It is argued that the trial court having viewed the premises he is in a much better position to estimate the value of the evidence, than this court. If this were a suit to abate a nuisance, that argument would be entitled to great weight, but the object of the suit is not to determine what damage may have been occasioned by the construction of this particular apartment house, by the manner of its construction and the way in which it is conducted, but as to what damage would be occasioned by the construction of an apartment house when conducted according to law and the ordinances of the city of Portland, and so as not to create a nuisance. Under those circumstances, the view of the particular building is of very *Page 336
slight value in determining the matters at issue in this cause.
In reference to how his property is damaged, plaintiff testified:
"So far as the question you asked, whether it affected the home itself to a great extent, it has destroyed it so far as pleasure and enjoyment of the home is concerned, since they put that apartment there, for several and many reasons. In the first place, it is the outlook of having a very ugly building to stare at in the face from rooms we occupy and like to look out of the window of. It has made a congested condition there; it has a transient population that comes and goes, and it is rather noisy. With that condition there, that has from three to four, sometimes as high as twelve automobiles parked along the land we own right on Pettygrove street. It has resulted several times we could not get in front of our garage, they were parked in front of the garage way. It has resulted in us having to go out and pick up trash and debris in the yard thrown out windows. Children from the apartment have overrun our garden place there; you could not keep them away, and each apartment is fitted with a radio that sometimes keeps going late at night. * * * It has made the house discomfortable. That is, we have never enjoyed it so much. The home means a great deal to myself and family, we use it to enjoy the place, but that has ruined it, so far as enjoying it is concerned. The greatest trouble we have had there, the greatest discomfort, is caused by a condition of smoke. Shortly after they put up that apartment, we were discommoded a great deal by very heavy thick smoke that came roaring out of a chimney on the apartment. I could not understand the smell until I investigated and found out they were using a garbage incinerator. * * *"
He further testified in effect that the smoke was oily and left an oily deposit on his residence. It would get into the house and smoke up the curtains. Some of the smoke he attributed to a defective oil burner. *Page 337
Mrs. Heitkemper, wife of plaintiff, testified to like effect.
Many of the things of which plaintiff complains are not peculiarly or necessarily the result of the erection or maintenance of an apartment house, but of an apartment or other house improperly managed or conducted or equipped.
Nearly every element of damage, of which plaintiff and his wife complain, could easily be eliminated. The smoke nuisance, the noisome odors from the incineration of garbage, the parkings of cars in front of their driveway, they are not obliged to put up with. In no event would defendant Schmeer be liable on these elements. If he is liable at all, he is answerable for the maintaining of an apartment house when properly managed and conducted. It does not seem just or equitable that the owners of eight-ninths of the property should be obliged to forever contribute their interest therein to cater to the esthetic tastes of the owner of the other one-ninth.
Plaintiff has filed a cross-appeal claiming that he is entitled to one-ninth of the price for which the property sold. In this contention, plaintiff is correct. He had a one-ninth interest in the property and is entitled to that proportion of what it sold for.
There are some other questions presented by the record, but, taking the view that we do, they cease to be of any importance.
The decree and judgment of the lower court should be vacated and one entered dismissing the suit as against defendant Larrowe, and awarding plaintiff judgment against defendant R.W. Schmeer in the sum of $363.42.
RAND, C.J., concurs in this dissent. *Page 338
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 23, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHNNY RAY CALDWELL,
Plaintiff-Appellant, No. 05-4046
v. (D.C. No. 2:04-CV-176-DAK)
UTAH STATE PRISON, Mental (D. Utah)
Health; STATE OF UTAH; and
DEPARTMENT OF CORRECTIONS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
This is a pro se civil rights appeal under 42 U.S.C. § 1983. In his claim to
the district court, Mr. Caldwell asserted that his civil rights were violated by Utah
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Department of Corrections officials (Defendants). Mr. Caldwell claims
Defendants violated his constitutional rights by depriving him of adequate
medical care for his various mental disorders. Mr. Caldwell alleges Defendants’
inaction subjected him to cruel and unusual punishment under the Eighth
Amendment. Mr. Caldwell also claims Defendants violated his right to access the
courts by not providing him adequate legal materials or assistance. The district
court dismissed Mr. Caldwell’s complaint because he failed to state a claim for
relief under 42 U.S.C. § 1983 and entered judgment in Defendants’ favor on both
claims. Mr. Caldwell appeals to this court.
After a thorough review of the Appellant’s brief, the district court’s order,
and the record, and for substantially the same reasons set forth in the district
court’s well-reasoned January 27, 2005 order and judgment of dismissal, we hold
that no relief is available to Mr. Caldwell pursuant to § 1983.
The decision of the district court is AFFIRMED. Mr. Caldwell’s motion
to proceed in forma pauperis on appeal is GRANTED. We therefore remind Mr.
Caldwell that he must continue to make partial payments of his court fees and
costs previously assessed until such have been paid in full.
Entered for the Court
Monroe G. McKay
Circuit Judge
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474 F.3d 783
Alassane SARR, Petitioner,v.Alberto R. GONZALES, United States Attorney General, Respondent.
No. 05-9606.
United States Court of Appeals, Tenth Circuit.
January 22, 2007.
COPYRIGHT MATERIAL OMITTED Sharon A. Healey, Seattle, WA, for Petitioner.
Irene M. Solet (Michael J. Singer and Peter D. Keisler, Assistant Attorneys General, with her on the brief), Civil Division, Department of Justice, Washington, DC, for Respondent.
Before LUCERO, McCONNELL, and HOLMES, Circuit Judges.
McCONNELL, Circuit Judge.
1
Petitioner Alassane Sarr seeks review of a final order of removal issued by the Bureau of Immigration Appeals (BIA), which affirmed a determination by an Immigration Judge (IJ) denying Mr. Sarr's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We reverse the decision of the BIA and remand for further proceedings.
I. BACKGROUND
A. Mauritania
2
The Islamic Republic of Mauritania is located in northwest Africa, bordered by the Atlantic Ocean, Senegal, Mali, Algeria, and Western Sahara. Formerly a French colony, the country gained its independence in 1960, an event that triggered a large migration of native sub-Saharan peoples to the area north of the Senegal River.1 Among these peoples were the Pulaar, or Fulani, a black African nomadic group with roots in the region dating back to at least the fourteenth century.2 The country's ethnic makeup is now approximately forty percent African-Arab-Berber (often called "Black Moor"), thirty percent Arab-Berber ("White Moor"), and thirty percent Black African (mostly Wolof, Tukulor, Soninke, and Fulani).3 Over time, conflict arose between the majority Moor population, which viewed Mauritania as an Arab nation, and the black Africans, who sought a more substantial role for sub-Saharan peoples and their way of life. The conflict came to a head in 1989 when violence erupted between the groups and thousands of black Africans were forced to leave the country and had their land and property confiscated. Though the Mauritanian government denies the allegations, a human rights group maintains that "[s]ince 1989, tens of thousands of black Mauritanians have been forcibly expelled, and hundreds more have been tortured or killed .... The campaign to eliminate black culture in Mauritania, orchestrated by the white Moor rulers, reached its height in the late 1980s and early 1990s...." Human Rights Watch/Africa, Mauritania's Campaign of Terror 1 (1994), Admin. R. at 270. The State Department has also recognized the "intercommunal violence that broke out in April 1989." Mauritania Note, supra note 1.
B. Mr. Sarr's Story
3
On March 3, 2001, Mr. Sarr used a false passport to enter the United States via New York City. On January 28, 2002, he filed applications for asylum, withholding of removal, and protection under the CTA with the Immigration and Naturalization Service (INS), the functions of which are now handled by U.S. Citizenship and Immigration Services within the Department of Homeland Security. During the pendency of these applications, Mr. Sarr relocated to Colorado, and the case was transferred to that venue.
4
In his asylum application and at his immigration hearing, Mr. Sarr claimed that he was a member of the Fulani ethnic group and that he was born in Mauritania in 1976. His father owned a three-acre farm in Kaedi, Mauritania, near the Senegalese border, where Mr. Sarr resided with his family through the age of thirteen. On September 20, 1989, five soldiers (whom Mr. Sarr identified as "white") arrived at the Sarr family home and demanded proof of the family's identity from Mr. Sarr's father. He complied, whereupon the soldiers promptly destroyed the documents. Mr. Sarr also explained to the court, however, that his mother retained his birth certificate, a document he later produced at his asylum hearing as proof of his identity. After destroying the papers, the soldiers assassinated Mr. Sarr's father, beat Mr. Sarr and the other members of his family, and removed the Sarrs from their home. After a brief detention in the local police station, the family members were forced to cross the Senegal River by rowboat, where they were met by Red Cross workers and admitted to a refugee camp in Matam, Senegal. During the asylum hearing, Mr. Sarr described in detail the circumstances of this incident, including the name of the military officer who led the attack on the Sarr family, the vehicle in which the soldiers traveled, the weapons they carried, and the instruments with which they beat the surviving members of the family.
5
According to Mr. Sarr, he remained in the refugee camp until 1996, at which time he moved to the city of Dakar in the hopes of finding help for his family and a "better life." Admin. R. at 89-90. There he became a peddler of merchandise for a shop owner. Mr. Sarr testified that he sent portions of his earnings to his siblings, who remained in the Matam refugee camp. Mr. Sarr also testified that he was unable to obtain legitimate identification or open a bank account while in Dakar. In 2001, Mr. Sarr purchased a false passport and left Dakar for the United States. He testified that he feared if he returned to Mauritania, "[t]he same thing that happened to us in 1989" would happen again. Supp. Admin. R. at 1.4 He stated that he had lost touch with his siblings, who presumably are still in Senegal.
C. The Immigration Judge's Opinion
6
The evidence before the IJ consisted of Mr. Sarr's asylum application and the INS's response, Mr. Sarr's Mauritanian birth certificate, Mr. Sarr's own testimony, which was presented through an interpreter, psychiatric analyses of Mr. Sarr, several State Department Country Reports on Mauritania, and a "packet of material" submitted by Mr. Sarr regarding Mauritania and his situation there.5 Admin. R. at 53. The government performed a forensic examination of the birth certificate, which did not reveal any changes to the document. At the beginning of the hearing, counsel for the Department of Homeland Security explained that the "particular problem with this case" was that Mr. Sarr "had stated to the asylum officer that all family documents were destroyed in the attack, yet he was able to produce the birth certificate. A huge inconsistency." Id. at 77. Counsel also argued that Mr. Sarr's description of conditions in Mauritania "was inconsistent with known conditions in Mauritania" and that "repatriation has been occurring for some time." Id.
7
At the conclusion of the hearing, the IJ delivered an oral decision rejecting Mr. Sarr's petitions for asylum and related relief based upon an adverse credibility finding. The IJ found that Mr. Sarr "failed to show past persecution or a well-founded fear of persecution," and that his testimony "was not sufficiently detailed, consistent or believable to provide a plausible and coherent account of the basis for his fears." Id. at 53-54. In particular, the IJ expressed doubt that Mr. Sarr was truly from Mauritania: "The issue before the Court is whether this guy is from Mauritania or not. I have no idea and I didn't give any credibility to his testimony." Id. at 55; see also id. at 57 ("Again, what this Court has problems with is credibility. I don't know if he's from Mauritania. I don't know if what he's telling me is the truth. He has absolutely nothing to show me that would suggest that he is, in fact, from Mauritania.").
8
The IJ identified three reasons for doubting Mr. Sarr's story. First, and most importantly, the IJ doubted Mr. Sarr's account of how his birth certificate was preserved:
9
[The respondent testified that] his birth certificate that his mother had on her when she died is what he produced for this Court. The problem is when I was listening to the testimony in this particular matter he told us quite clearly that when the soldiers came to his house that, in fact, they asked his father if, in fact, they were Mauritanians or not. That his father brought out the paperwork regarding the family and that the soldiers destroyed all of the paperwork. That nothing was available. Now, all of a sudden, he comes up with a birth certificate. From where, I have no idea other [than] what he said, the mother had it on her. Well, according to what [he told] us previously, ... the father had it and handed it to the soldiers and they destroyed all of the paperwork and ... there was nothing left there.
10
Id. at 54-55. Second, the IJ noted that Mr. Sarr gave two different dates—1994 and 1991—for his mother's death. Third, the IJ questioned why Mr. Sarr did not know the address or phone number of the man for whom he had worked in Dakar, and did not attempt to contact him to obtain corroboration of his story.
11
The IJ found in favor of Mr. Sarr on the issue of past and current conditions in Mauritania. In particular, the IJ stated: "[T]here was a problem between blacks and white Moors [in Mauritania in 1989].... I agree with counsel for the respondent that I don't think things in Mauritania have changed at all." Id. at 55.
D. The BIA's Opinion
12
Mr. Sarr appealed the IJ's decision to the BIA, which affirmed in a short opinion by a single member. After noting that it had "reviewed the record of proceeding, the Immigration Judge's decision[,] ... and the respondent's contentions on appeal," the BIA "agree[d] with the Immigration Judge that [Mr. Sarr] has failed to carry his burden of proof to demonstrate his actual identity, and did not establish either past persecution or a well-founded fear of future persecution that would justify a grant of asylum" or the other requested forms of relief. Id. at 2. The BIA recognized that the IJ did not "completely describe" Mr. Sarr's testimony regarding how his mother retained the birth certificate, but found that "the record reflects that [Mr. Sarr] made contradictory statements with regard to the central issue of the alleged destruction of his family's documents and the issue of when his mother, who he claimed successfully preserved at least one family document, passed away." Id. at 2-3. Consequently, the BIA upheld the IJ's adverse credibility finding as not clearly erroneous.
13
The BIA made no finding with respect to changed conditions in Mauritania.
14
Mr. Sarr timely appealed to this Court.
II. DISCUSSION
15
A. Establishing Eligibility for Asylum or Withholding of Removal
16
A deportable alien may seek to remain in the United States by demonstrating that he qualifies for one or more of three statuses: asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3)(A), or relief under the Convention Against Torture, see Pub.L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822-23 (1998); 8 U.S.C. § 1231 (note). To qualify for asylum, an alien must show that he "has suffered past persecution or has `a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir.2005) (alteration in original) (quoting 8 U.S.C. § 1101(a)(42)(A) and citing 8 C.F.R. § 208.13(a)). To qualify for restriction on removal, an alien must demonstrate that his "life or freedom would be threatened in [the proposed country of removal] because of [his] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R. § 1208.16(b). Protection under the CTA does not depend on a showing that mistreatment would be based on any particular characteristic (e.g. race or political opinion), but an alien seeking such relief must show that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2).
B. Standard of Review
17
When reviewing BIA decisions, an appellate court must "look to the record for `substantial evidence' supporting the agency's decision: `[O]ur duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole.'" Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006) (alteration in original) (quoting Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.2004)). Agency findings of fact are "conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary." Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir.2004) (citing 8 U.S.C. § 1252(b)(4)(B)) (other internal citations and quotation marks omitted). We do not "weigh the evidence or ... evaluate the witnesses' credibility." Woldemeskel v. INS, 257 F.3d 1185, 1189 (10th Cir.2001) (internal citations and quotation marks omitted).
18
"Credibility determinations are factual findings ... subject to the substantial evidence test." Uanreroro, 443 F.3d at 1204. "Because an alien's testimony alone may support an application for withholding of removal or asylum, 8 C.F.R. § 208.13(a), the IJ must give specific, cogent reasons for disbelieving it." Sviridov, 358 F.3d at 727 (internal citation and quotation marks omitted). In formulating those reasons, the trier of fact must look to the "totality of the circumstances" and "all relevant factors." 8 U.S.C. § 1158(b)(1)(B)(iii).
C. Scope of Review
19
Review in this case is complicated by the fact that there exists both an oral decision of the immigration judge and a written decision by a member of the BIA. These two decisions are not identical. The IJ decision relies upon some factors not mentioned by the BIA order, and the BIA order takes issue with the IJ's decision in one potentially important respect. Mr. Sarr contends that our review should be limited to the BIA opinion. The government, on the other hand, would have us look to both the BIA opinion and the IJ's opinion to determine whether the removal order satisfies our standard of review. To resolve this dispute, we turn to general principles of administrative law and to our recent precedent detailing the asylum process and our role within it.
20
Asylum applicants receive a hearing before an immigration judge, at which the applicant has the burden of proving refugee status. 8 C.F.R. § 1208.13(a); Nazaraghaie v. INS, 102 F.3d 460, 462 (10th Cir.1996). If the IJ's ruling is adverse to the applicant, he may seek review by the BIA. 8 U.S.C. § 1229a(c)(5); 8 C.F.R. § 1240.15; 8 C.F.R. §§ 1003.1(b)(3), 1003.38. If the BIA ruling is adverse to the applicant, he may seek review in this Court. "We have general jurisdiction to review only a `final order of removal,' 8 U.S.C. § 1252(a)(1), and there is no `final order of removal' until the BIA acts." Uanreroro, 443 F.3d at 1203 (quoting Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190 (10th Cir.2005)).
21
Until 1999, all appeals to the BIA were decided by three-member panels whose opinions constituted the final decision of the agency. Pursuant to regulations promulgated by the Attorney General in 1999 and 2002, the BIA now has three options: decision by a three-member panel with a full explanatory opinion, 8 C.F.R. § 1003.1(e)(6), summary affirmance by a single member of the board without opinion, id. § 1003.1(e)(4), or decision via a brief order by a single member of Board, affirming, modifying, or remanding the IJ's decision, id. § 1003.1(e)(5). See also Uanreroro, 443 F.3d at 1203-04; Tsegay v. Ashcroft, 386 F.3d 1347, 1351-52 (10th Cir. 2004).
22
Our scope of review depends upon which of these three forms the BIA decision takes. If a three-member panel issues a full explanatory opinion, which it does in a "particularly difficult or important case," the "BIA opinion completely supercedes the IJ [opinion] for purposes of [judicial] review." Uanreroro, 443 F.3d at 1203 (citing 8 C.F.R. § 1003.1(e)(6); 67 Fed.Reg. 54878, 54,886 n. 6 (Aug. 26, 2002)). If a single member of the BIA issues a summary affirmance without opinion, which occurs in "more routine appeal[s]," id., the IJ opinion constitutes the decision of the agency for purposes of appeal and the reviewing court looks to that opinion to determine the agency's rationale. Id. at 1203; Yan v. Gonzales, 438 F.3d 1249, 1251 (10th Cir.2006); Sviridov, 358 F.3d at 727. Such an affirmance does not imply BIA approval of all the reasoning in the IJ opinion, but does signify that any potential errors are harmless or nonmaterial. Uanreroro, 443 F.3d at 1203; 8 C.F.R. § 1003.1(e)(4)(ii).
23
"If the case is more significant than an (e)(4) case and less significant than an (e)(6) case," Cruz-Funez, 406 F.3d at 1190, a single BIA member can decide the merits of the appeal and issue "a brief order, affirming, modifying, or remanding" the IJ's order, 8 C.F.R. § 1003.1(e)(5). Such an order is a "middle ground ... between the full opinion and summary affirmance options." Uanreroro, 443 F.3d at 1203-04. In Uanreroro we held that such an order constitutes "the final order of removal under 8 U.S.C. § 1252(a)," and thus the Court "will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance." 443 F.3d at 1203-04. We noted, however, that "when seeking to understand the grounds provided by the BIA, we are not precluded from consulting the IJ's more complete explanation of those same grounds." Id. at 1204. In other words, because an (e)(5) affirmance is, by definition, a truncated process which can rest on what has been said below, we may consult the IJ's opinion to the extent that the BIA relied upon or incorporated it.
24
Uanreroro identified three general circumstances that call for consultation of the IJ opinion: (1) "where the BIA incorporates by reference the IJ's rationale," (2) where the BIA "repeats a condensed version of [the IJ's] reasons while also relying on the IJ's more complete discussion," and (3) "where the BIA reasoning is difficult to discern and the IJ's analysis is all that can give substance to the BIA's reasoning." Id. The first two categories are obvious and easily applied. Where the BIA explicitly incorporates the IJ's reasoning, we review it. The last category, however, requires more delicate analysis. Where the BIA does not explicitly incorporate or summarize the IJ's reasoning, but its opinion is opaque or otherwise unclear, we may look to the IJ's opinion for guidance on the theory that the BIA did the same. See, e.g., Cruz-Funez, 406 F.3d at 1191 (consulting an IJ opinion in the face of a "somewhat mystifying" (e)(5) order). But as we cautioned in Uanreroro, this category is not an open invitation to turn to the IJ's opinion in every instance. Where the BIA decision does not explicitly incorporate or summarize the IJ's reasoning and "contains a discernible substantive discussion" that stands on its own, "our review extends no further...." Uanreroro, 443 F.3d at 1204. Simply put, the task is to determine whether, in issuing an order under the (e)(5) process, the BIA incorporated the IJ's reasoning, either expressly or by implication. Only then may we impute the IJ's opinion to the BIA.
25
The government argues for a more expansive consideration of the IJ's opinion. But the principles of appellate review stated above are not an artificial creation of this Court. They rest on a fundamental principle of administrative law, announced by the Supreme Court nearly sixty years ago:
26
[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency.
27
SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). In INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam), the Supreme Court stressed that these principles of limited appellate review have "obvious importance in the immigration context." Id. at 16-17, 123 S.Ct. 353. By refraining from deciding immigration appeals on the basis of grounds not expressly or impliedly adopted by the BIA, "we safeguard agency decision making by ensuring that the agency itself makes the decisions entrusted to its authority based on grounds articulated by that entity." Mickeviciute v. INS, 327 F.3d 1159, 1165 (10th Cir.2003). Our procedures for judicial review respect the BIA's discretionary decision to adopt the IJ's opinion in part or in whole (or not at all). In a particular case, government lawyers may find it convenient for us to expand the scope of our review to include portions of the IJ's opinion that were not explicitly or implicitly adopted by the BIA, but that would come at the cost of respect for the agency's own judgment regarding its ground for decision.
28
In seeking a broader role for the IJ's opinion in the context of judicial review of an (e)(5) order, the government directs our attention to the explanation of the (e)(5) process in the preamble to the 2002 regulations:
29
As discussed below, § 3.1(e)(5) also authorizes a single Board member to enter a decision that modifies the immigration judge's decision or remands the case to the immigration judge in any case that does not meet the standards for three-member panel review under § 3.1(e)(6). Such an opinion may properly begin with the opinion of the immigration judge and make specific modifications to that opinion. For example, a single-member opinion may state that the Board member "adopts the opinion of the immigration judge, except to note that" a particular issue is governed by intervening precedent, and to explain that the immigration judge's opinion would still be correct in light of the intervening precedent. Accordingly, such an opinion would conclude that the "immigration judge's opinion is affirmed for the reasons set forth therein and as set forth in this opinion." In this instance, the parties and any reviewing court would be able to look to the combination of the immigration judge's opinion and the single-member decision to understand the conclusions reached in the adjudication.
30
67 Fed.Reg. 54878, 54886 n. 6 (Aug. 26, 2002) (emphasis added). We do not think the preamble supports the government's position. The government calls particular attention to the italicized last sentence, but that sentence does not suggest that the reviewing court should look to "the combination of the immigration judge's opinion and the single-member decision" in every case; rather, it suggests that such a procedure is appropriate only when the single-member opinion expressly adopts the IJ's opinion except in some particular respect. Our approach is entirely consistent with this explanation.
31
In this case, the BIA proceeded under 8 C.F.R § 1003.1(e)(5), and we will review its opinion in accordance with the principles outlined above.
D. Application
32
In a three-paragraph order, a single member of the BIA proceeded under the (e)(5) process and affirmed the IJ's denial of Mr. Sarr's petitions. In the first paragraph, the BIA stated that after "review[ing] the record of the proceeding, the Immigration Judge's decision," and Mr. Sarr's contentions on appeal, it "agree[d] with the Immigration Judge" that Mr. Sarr "failed to carry his burden of proof to demonstrate his actual identity, and did not establish either past persecution or a well-founded fear of future persecution." Admin. R. at 2. Although the BIA did not explicitly state in what respect Mr. Sarr failed to carry his burden of proof, we assume that the problem was with his proof of identity. The principal focus of the litigation before the IJ was on Mr. Sarr's birth certificate, which was his only documentary evidence of Mauritanian citizenship. Although the certificate withstood the government's forensic examination and was consistent with Mr. Sarr's own testimony regarding his place of birth and early residence, Mr. Sarr was unable to offer any confirmation of his identity from Mauritanian authorities. The IJ questioned the authenticity of the birth certificate on the basis of Mr. Sarr's account of the destruction of most of the family's documents.
33
The BIA did not expressly adopt any part of the IJ's opinion. In the second and third paragraphs of its opinion, the BIA responded to Mr. Sarr's arguments on appeal. Only the second paragraph relates to issues on appeal to this Court. That paragraph is addressed to Mr. Sarr's contentions that the IJ's decision "was based on an inaccurate assessment of [Mr. Sarr's] testimony regarding his ability to produce a birth certificate and on an inconsequential inability to remember the year in which his mother died." Id. at 2. The BIA agreed with Mr. Sarr that the IJ's "decision did not completely describe [Mr. Sarr's] testimony with relation to the birth certificate at issue, namely by failing to mention [Mr. Sarr's] statement (Tr. at 14) that his mother had preserved one document." Id. Notwithstanding this error, the BIA declined to find the IJ's ultimate adverse credibility finding clearly erroneous, on the ground that Mr. Sarr "made contradictory statements with regard to the central issue of the alleged destruction of his family's documents and the issue of when his mother, who he claimed successfully preserved at least one family document, passed away." Id. at 2-3.
34
The BIA thus modified the grounds on which the IJ reached his adverse credibility determination. A finding that testimony is "not sufficiently detailed" obviously cannot be sustained when the IJ failed even to acknowledge relevant portions of that testimony, namely, Mr. Sarr's testimony regarding his mother's preservation of his Mauritanian birth certificate. The BIA affirmed the IJ's adverse credibility finding solely on the basis of the inconsistency in Mr. Sarr's testimony regarding two issues—the preservation of the birth certificate and the date of Mr. Sarr's mother's death.6
35
Perhaps recognizing that the supposed inconsistency in Mr. Sarr's testimony on these matters is less than met the BIA's eye, the government asks us to disregard the BIA's specific ruling and expand our review to include the IJ's rationale that Mr. Sarr's testimony was "not believable" or "improbable." The government contends that the "fact that the IJ and the Board labeled Sarr's statements regarding the preservation of his birth certificate as `inconsistent,' as opposed to `improbable,' is of no consequence—either can be the basis for an adverse credibility finding." Brief for Respondent at 35. Surely not. Inconsistency and improbability are two different things. Our review of the BIA decision must be confined to the ground identified by the BIA: the supposed inconsistencies in Mr. Sarr's testimony.
36
1. Inconsistency Regarding the Birth Certificate.
37
The first purported inconsistency discussed by the BIA concerns Mr. Sarr's testimony as to the fate of his birth certificate. The BIA recognized that Mr. Sarr offered an explanation for this seeming inconsistency and stated that the IJ did not "completely describe" this explanation. Admin. R. at 2. The BIA concluded, however, that "the record reflects that the respondent made contradictory statements with regard to the central issue of the alleged destruction of his family's documents. ..." Id. The BIA provided no further discussion as to what these inconsistencies were and provided no citation to the record. We are thus left to consult the IJ's more complete discussion and the record itself. As to this issue, the IJ found the following:
38
[R]espondent has ... testified ... [t]hat his father brought out the paperwork regarding the family and that the soldiers destroyed all of the paperwork. That nothing was available. Now, all of a sudden, he comes up with a birth certificate. From where, I have no idea other [than] what he said, the mother had it on her. Well, according to what [he told] us previously, ... the father had it and handed it to the soldiers and they destroyed all of the paperwork and ... there was nothing left there.
39
Id. at 54-55.
40
A review of the record suggests that the IJ and the BIA significantly overemphasize the inconsistent nature of Mr. Sarr's statements. In his Form I-589 asylum application, Mr. Sarr said only this regarding the documents: "[The soldiers] spoke with my father and ordered him to identify himself and also his family members to be Mauritanian citizens. He entered his room and came out with few documents and gave them. After they looked at the documents, they tore the documents and threw the pieces away." Id. at 175. At the hearing before the IJ, Mr. Sarr discussed the document destruction three times:
41
First, at the beginning of the hearing, counsel asked Mr. Sarr how the birth certificate escaped destruction by the soldiers. Mr. Sarr responded:
42
My mother was holding [my birth certificate]. My mother had all the papers. When they came they asked the papers to my father so my father requested that my mother bring them out and she brought everything but this last one that remained with the other papers that were there.
43
Id. at 79. He further explained that mores in the Islamic country of Mauritania accounted for the soldiers' failure to search the mother and children. Id. at 80.
44
During the second discussion of the documents, the following exchange occurred:
45
Q: What did the soldiers want from your father?
46
A: They asked him to prove that he was a Mauritanian citizen.
47
Q: Did he? What did he do about it?
48
A: When they asked him that they requested that he brings [sic] all his paperwork. That's when he went to my mom and requested that she give him all our paperwork.
49
Q: Did he end up giving them away or not?
50
A: Yes.
51
Q: What did they do with them?
52
A: He looked at the paperwork and then he destroyed it.
53
Id. at 82.
54
The third piece of testimony regarding the paperwork consisted of the following:
55
Q: ... How did the soldiers destroy your family paperwork?
56
A: This is how, the paper it has my father's certificate of nationality, his ID, his passport, and then my siblings and everybody else paperwork, certificate. And my father gave it to them hoping that this will save him but they took it and they torn it. It was torn.
57
Id. at 101.
58
As the BIA conceded, the IJ failed to describe fully Mr. Sarr's explanation of how his mother retained the birth certificate. At first, in response to a specific question about his birth certificate, Mr. Sarr said his mother had retained it. Later, in response to more general questions about the family's paperwork, he said all of it was destroyed. Although Mr. Sarr's later statements contain some language about "all" the paperwork and "everybody else[`s] paperwork" being destroyed, these statements were made through a translator and in the shadow of the very specific explanation given at the outset of the questioning on this topic. Taking into account the fact that this colloquy occurred through a translator—and given that the very first thing Mr. Sarr explained about his birth certificate was its absence from the group of destroyed papers—this testimony does not appear contradictory. In the context of all that unfolded at this hearing—and in the context of the concerns this Court has previously raised regarding the testimony of asylum applicants, see Solomon v. Gonzales, 454 F.3d 1160, 1164 (10th Cir.2006)7—there is no direct inconsistency in Mr. Sarr's statements, and there is no apparent inconsistency in their substance. As for any other "contradictory statements with regard to ... the alleged destruction of his family's documents," the BIA failed to point this Court to any and our independent review of the record has revealed none.
59
2. Inconsistency Regarding the Date of the Death of Mr. Sarr's Mother
60
The BIA also stated that "the record reflects that [Mr. Sarr] made contradictory statements with regard to ... the issue of when his mother, who he claimed successfully preserved at least one family document, passed away." Admin. R. at 2-3. For its part, the IJ's opinion adds little substance to this discussion. As a reason for disbelieving Mr. Sarr, the IJ pointed out that Mr. Sarr "indicated to the Court that his mother died in 1994 but this afternoon when he was asked again he said 1991, then he said 1994." Id. at 55.
61
Mr. Sarr discussed his mother's death at three different points during the hearing. The first mention came while Mr. Sarr was discussing the difficulties of life in the refugee camp:
62
Q: What happened with your mother?
63
A: While we were there life was very difficult.... And my mother was with a lot of pain because of everything that happened and I think she died, you know, as a result of all these things.
64
Q: When did she die?
65
A: She died in 1994.
66
Id. at 89. The second discussion of his mother's demise entailed a fairly detailed account of the circumstances surrounding the death, but no specific date was asked for or offered. Id. at 98-99. The third discussion of his mother's death was the subject of some confusion between the court, the lawyers, and the interpreter. It began with Mr. Sarr's lawyer, Ms. Healy, asking Mr. Sarr again to discuss his mother's death:
67
Q: Alassane, at our last hearing there were some questions with regard to the death of your mother and that's what I wanted to ask you about. Can you tell me what year your mother died in?
A: (No audible response.)
68
Id. The IJ then interjected and the following colloquy occurred between him and Ms. Healy:
69
[IJ]: 1994 according to what he said.
70
[Ms. Healy]: Okay.
71
[IJ]: So it's been asked and answered, so.
72
Id. at 119-20. Without further prompting, Mr. Sarr (through his translator) said:
73
In 1991. She got very sick and this was a result of the past thing that happened to us. I was out and when I came back I found her. Again she had relapsed. We took her to the Red Cross and she had office visit there and she was given some pills to take. And we went home and in the afternoon a little bit after 3:00 that's when she died.
74
Id. at 120. Ms. Healy then turned to the IJ and had the following discussion:
75
[Ms. Healy]: And because there was some confusion can I ask again when she died?
76
[IJ]: No.
77
[Ms. Healy]: Okay.
78
[IJ]: She [Mr. Sarr's interpreter] said 1991.
79
[Ms. Healy]: Okay.
80
[IJ]: That's not what he told me last time.
81
[Ms. Healy]: 1991, okay.
82
[IJ]: That's what he said. The last time he told me 1994. That's what I have in my notes.
83
[Ms. Healy]: Right, that's what I have too and so I want to make sure that it was clear because I'm not sure the stories—
84
[IJ]: Well, I got the answer already so.
85
[Ms. Healy]: Okay.
86
Id. at 120-21. Seven questions later, Ms. Healy asked Mr. Sarr what his family painted on his mother's grave marker. He answered: "Her name, the date that she died." Id. at 122. The IJ then directly addressed Mr. Sarr:
87
Q: Tell me what the date is again.
88
A: I do not remember the exact date but I remember the year.
89
Q: Tell me what it is.
90
A: 1994.
91
Q: Okay.
92
Id. at 122.
93
In view of this evidence, two things are evident. First, although there was some confusion as to Mr. Sarr's response (perhaps due to translation issues), Mr. Sarr did, momentarily, contradict himself as to the date of his mother's death. Second, that contradiction was a minor discrepancy that Mr. Sarr quickly corrected. Because the date of his mother's death made no difference to the strength or plausibility of his story, he had no incentive to change or reshape his testimony on this point. We do not believe this minor mistake constitutes substantial evidence upon which an adverse credibility finding can be based. In Diallo v. Gonzales, 447 F.3d 1274, 1283 (10th Cir.2006), this Court affirmed an adverse credibility finding where the petitioner "was given the opportunity to explain ... inconsistencies but failed to do so to the IJ's satisfaction." Here, by contrast, Mr. Sarr was given no opportunity to explain, and the inconsistency is far less significant than that in Diallo.
94
Aside from the lone misstep as to the year, Mr. Sarr's testimony regarding his mother's death was reasonably detailed and consistent. Moreover, the BIA seems to have linked the inconsistency about the date of his mother's death (a point that has little to do with his request for asylum) with the validity of the birth certificate (a point that has much to do with his request for asylum), see Admin. R. at 3 ("[R]espondent made contradictory statements with regard to ... the issue of when his mother, who he claimed successfully preserved at least one family document, passed away.")—a jump that has no logical foundation since, under either date, Mr. Sarr's mother would have been alive at the time of the document destruction.
III. CONCLUSION
95
We hold that the decision to deny Mr. Sarr's requested relief was not supported by substantial evidence. Mr. Sarr presented proof of his Mauritanian citizenship through both documentary and testimonial evidence. The government concedes that it subjected Mr. Sarr's Mauritanian birth certificate to forensic examination and found that it had not been altered. Mr. Sarr also testified that he was born in Mauritania, that his family resided and owned property in Mauritania, and that he lived there until his expulsion at the age of thirteen. As we have previously noted, "an asylum applicant's otherwise credible testimony constitutes sufficient evidence to support an application," Solomon, 454 F.3d at 1165, and while the agency is entitled to disbelieve such testimony, it must have "specific, cogent reasons" for doing so, Sviridov, 358 F.3d at 727 (internal quotation marks and citation omitted). It is quite possible that such reasons exist in this case, but the BIA failed to identify them, either in its own opinion or through incorporation of the IJ's opinion. The BIA concedes that the IJ's analysis of Mr. Sarr's testimony was incomplete. It upheld the IJ's adverse credibility finding based upon two inconsistencies that, if they existed at all, were too minor to constitute substantial evidence. We thus REVERSE the decision of the BIA and REMAND to the agency for further proceedings. On remand, the agency may consider additional evidence regarding Mr. Sarr's Mauritanian identity and may consider alternative grounds, including any possible change in country conditions.
Notes:
1
See U.S. Department of State, Bureau of African Affairs, Background Note: Mauritania, http://www.state.gov/r/pa/ei/bgn/5467.htm (last visited Dec. 26, 2006) (hereinafter "Mauritania Note").
2
See Fulani Empire, in 5 The New Encyclopedia Britannica 42 (15th ed.2002). It appears that the terms "Pulaar," "Pular," "Haalpulaar," "Fulfulde," and "Fulani" are used somewhat interchangeably to describe both an ethnic group and its native tongue. See, e.g., Annette Harrison, Fulfulde Family Language Report (2003), http://www.sil.org/silesr/2003/silesr2003-009.htm (last visited Dec. 26, 2006); Mauritania Note, supra note 1. During the asylum hearing, Mr. Sarr (or perhaps his translator) used "Fulani" and "Pulaar" with reference to both his ethnic group and his language. For simplicity, we will refer to both as Fulani.
3
See Mauritania Note, supra note 1; World Data: Mauritania, in Encyclopedia Britannica (2006) (online version), http://www. britannica.com/wdpdf/Mauritania.pdf (last visited Dec. 26, 2006).
4
This page of the hearing transcript was omitted from the certified Administrative Record, where it would have been between pages 95 and 96. The government submitted the page as a supplement to the record
5
The government sought to introduce the testimony of the asylum officer, but was refused. The government preserved its right to present this evidence in the case of remand
6
The BIA made no reference to the third reason the IJ gave for finding Mr. Sarr not credible: his lack of knowledge of his Dakar employer's address or phone number and failure to contact him. Because the BIA did not expressly or impliedly incorporate this rationale into its opinion, we do not address it. Even if we did, it would not change the outcome of this appeal. The transcript of Mr. Sarr's hearing before the IJ does not reveal that he was asked for the address or phone number of his employer, nor was he asked whether he had attempted to contact the employer or, if not, why not. The sum total of Mr. Sarr's testimony regarding his employer in Dakar was three sentences, with no follow-up questions and no questions on cross-examinationSee id. at 90.
7
InSolomon we observed:
The courts of appeals have frequently noted the inherent problems with credibility determinations in asylum cases. Asylum applicants rarely speak English, and their testimony is plagued with the uncertainties of translation and cultural misunderstanding. They are generally unfamiliar with American procedures and wary of lawyers and officials; often they are not well served even by their own legal counsel. Their escape from persecution sometimes entailed acts of deceit and prevarication, or even bribery or forgery, which complicates evaluation of their veracity in immigration proceedings. Moreover, because of their troubled relations with their native countries, purported refugees often have difficulty in obtaining documentation to back up their claims.
Id. at 1164 (internal citation omitted).
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08-14-2010
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https://www.courtlistener.com/api/rest/v3/opinions/4523064/
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-852
Filed: 7 April 2020
Wake County, No. 18 CVS 2501
SHIRLEY VALENTINE, ADMINISTRATOR OF THE ESTATE OF SHANYE
JANISE ROBERTS, DECEASED, Plaintiff,
v.
STEPHANIE SOLOSKO, PA-C; NEXTCARE URGENT CARE; NEXTCARE, INC.;
NEXTCARE, INC. D.B.A. NEXTCARE URGENT CARE; MATRIX OCCUPATIONAL
HEALTH, INC. and MATRIX OCCUPATIONAL HEALTH, INC. D.B.A. NEXTCARE
URGENT CARE, Defendants.
Appeal by Defendants from order entered 18 March 2019 by Judge Allen
Baddour in Wake County Superior Court. Heard in the Court of Appeals 4 February
2020.
The Law Office of Thomas E. Barwick, PLLC, by Thomas E. Barwick, for
Plaintiff-Appellee.
Lewis Brisbois Bisgaard & Smith, LLP, by Carrie E. Meigs and Justin G. May,
for Defendants-Appellants.
COLLINS, Judge.
Defendants appeal from an order granting Plaintiff’s motion for an extension
of time to serve the summons and complaint and denying Defendants’ motions to
dismiss and for judgment on the pleadings. Defendants argue that the trial court
erred in its application of Rules 4 and 6 of the North Carolina Rules of Civil
Procedure. Because a trial court is afforded discretion under Rule 6(b) to
VALENTINE V. SOLOSKO
Opinion of the Court
retroactively extend the time for service of process of a dormant summons under Rule
4(c) upon a finding of excusable neglect, we discern no legal error by the trial court.
Accordingly, we affirm the trial court’s order.
I. Procedural History
Plaintiff, Shirley Valentine, the administrator of the estate of her deceased
daughter Shanye Janise Roberts, filed a lawsuit in 2015 alleging medical malpractice
and wrongful death against Stephanie Solosko, PA-C; NextCare Urgent Care;
NextCare, Inc.; NextCare, Inc. D.B.A. NextCare Urgent Care; Matrix Occupational
Health, Inc.; and Matrix Occupational Health, Inc. D.B.A. NextCare Urgent Care
(collectively “Defendants”). The action arose out of medical care that Defendants
provided to the deceased on 10 April 2013. The trial court extended the statute of
limitations to 7 August 2015 pursuant to Rule 9(j) of the North Carolina Rules of Civil
Procedure. Plaintiff voluntarily dismissed the lawsuit without prejudice on
24 February 2017.
Plaintiff timely filed a second lawsuit on 23 February 2018 and the Clerk of
Court issued summonses (“the original summonses”) for all Defendants on that day.
Plaintiff served the original summonses on defendant Solosko on 15 May 2018 and
the other defendants on 17 May 2018 (eighty-one and eighty-three days, respectively,
after the original summonses were issued). Plaintiff filed an affidavit of service of
process on 15 June 2018, including the returned registry receipts as exhibits.
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VALENTINE V. SOLOSKO
Opinion of the Court
Plaintiff sued out alias or pluries summonses1 for all Defendants on 23 May
2018, eighty-nine days after the original summonses were issued. Plaintiff did not
serve these alias or pluries summonses on Defendants.
On 19 July 2018, Defendants filed an answer and a motion to dismiss on the
following grounds: lack of personal jurisdiction, insufficiency of process, insufficiency
of service of process, failure to state a claim upon which relief can be granted, and the
action being time-barred by the statute of limitations. Defendants also filed a motion
for judgment on the pleadings.
Plaintiff sued out alias or pluries summonses again on 22 August 2018,
ninety-one days after issuance of the previous alias or pluries summonses. Plaintiff
did not serve these alias or pluries summonses. On 28 September 2018, Plaintiff filed
a motion to extend time to issue, file, and serve the summonses, the alias or pluries
summonses, and the complaint.
After conducting a hearing, the trial court entered an order granting Plaintiff’s
motion for extension of time for service of the summonses and complaint, and denying
Defendants’ motions to dismiss and for judgment on the pleadings. Defendants filed
notice of appeal.
1 North Carolina Rule of Civil Procedure 4 appears to use the terms “alias or pluries summons”
and “alias and pluries summons” interchangeably, as do our courts. Throughout this opinion, we use
the term “alias or pluries summons.”
-3-
VALENTINE V. SOLOSKO
Opinion of the Court
II. Appellate Jurisdiction
The trial court’s order does not dispose of all claims and all defendants, and is
thus an interlocutory order. N.C. Gen. Stat. § 1A-1, Rule 54(a) (2019); Veazey v. City
of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). There is generally no
right to immediate appeal of an interlocutory order—although immediate appeal may
be permitted if the trial court certifies the order under N.C. Gen. Stat. § 1A-1, Rule
54(b), or if the appellant can show that the order affects a substantial right—because
most interlocutory appeals tend to hinder judicial economy by causing unnecessary
delay and expense. Love v. Moore, 305 N.C. 575, 580, 291 S.E.2d 141, 145-46 (1982).
Here, the trial court could not certify the order pursuant to Rule 54(b) because
“there has been no adjudication as to any claim(s) or part(ies) within the meaning of
Rule 54(b).” Howze v. Hughes, 134 N.C. App. 493, 495, 518 S.E.2d 198, 199 (1999).
Moreover, contrary to Defendants’ argument that the order affects a substantial right
under N.C. Gen. Stat. § 1-277(b), which allows “the right of immediate appeal from
an adverse ruling as to the jurisdiction of the court over the person or property of the
defendant[,]” our courts have routinely held that that section 1-277(b) is limited to
rulings on minimum contacts questions, and does not apply to rulings based on
procedural issues regarding issuance or service of process, such as the order at issue
in this case. See Berger v. Berger, 67 N.C. App. 591, 595, 313 S.E.2d 825, 829 (1984).
Nonetheless, “because the case sub judice is one of those exceptional cases where
-4-
VALENTINE V. SOLOSKO
Opinion of the Court
judicial economy will be served by reviewing the interlocutory order, we will treat the
appeal as a petition for a writ of certiorari and consider the order on its merits.”
Carolina Bank v. Chatham Station, Inc., 186 N.C. App. 424, 428, 651 S.E.2d 386, 389
(2007) (citations omitted); N.C. R. App. P. 21(a)(1).
III. Discussion
The central question is whether the trial court may, upon a showing of
excusable neglect, grant an extension of time under these facts to serve a dormant
summons where a second alias or pluries summons was obtained ninety-one days
after the previous alias or pluries summons.
Plaintiff argues that Lemons v. Old Hickory Council, Boy Scouts of America,
Inc., 322 N.C. 271, 367 S.E.2d 655, reh’g denied, 322 N.C. 610, 370 S.E.2d 247 (1988),
and its progeny control the outcome here. Conversely, Defendants contend that
Plaintiff’s failure to timely obtain the second alias or pluries summons effectively
discontinued the action, as was the case in Dozier v. Crandall, 105 N.C. App. 74, 411
S.E.2d 635 (1992).
Rule 4 governs service of process. See N.C. Gen. Stat. § 1A-1, Rule 4 (2019).
Upon the filing of a complaint, summons shall be issued within five days. Id. at
§ 1A-1, Rule 4(a). Rule 4(c) requires that a summons be served within sixty days of
issuance. Id. at § 1A-1, Rule 4(c). A summons not served within sixty days “loses its
vitality and becomes functus officio, and service obtained thereafter does not confer
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VALENTINE V. SOLOSKO
Opinion of the Court
jurisdiction on the trial court over the defendant. However, although a summons not
served within [sixty] days becomes dormant and unserveable, under Rule 4(c) it is
not invalidated nor is the action discontinued.” Dozier, 105 N.C. App. at 75-76, 411
S.E.2d at 636 (citations omitted).
If the summons is not served within sixty days of issuance, Rule 4(d) permits
the action to be continued in existence by an endorsement from the clerk or issuance
of an alias or pluries summons within ninety days of the issuance of the preceding
summons. N.C. Gen. Stat. § 1A-1, Rule 4(d). Any such alias or pluries summons
must be served within sixty days of issuance. See Lemons, 322 N.C. at 275, 367 S.E.2d
at 657.
When there is neither an endorsement nor issuance of alias or pluries
summons within the time specified in Rule 4(d), the action is discontinued as to any
defendant who was not served with summons within the time allowed. N.C. Gen.
Stat. § 1A-1, Rule 4(e). Thereafter, endorsement may be obtained or alias or pluries
summons may issue, but, as to any defendant who was not served with summons
within the time specified in Rule 4(d), the action shall be deemed to have commenced
on the date of such issuance or endorsement. Id.
“Rule 4 . . . must be interpreted in conjunction with Rule 6, which addresses
the computation of any time period prescribed by the Rules of Civil Procedure.”
Lemons, 322 N.C. at 275, 367 S.E.2d at 657. Rule 6 provides:
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VALENTINE V. SOLOSKO
Opinion of the Court
When by these rules or by a notice given thereunder or by
order of court an act is required or allowed to be done at or
within a specified time, the court for cause shown may at
any time in its discretion with or without motion or notice
order the period enlarged if request therefor is made before
the expiration of the period originally prescribed or as
extended by a previous order. Upon motion made after the
expiration of the specified period, the judge may permit the
act to be done where the failure to act was the result of
excusable neglect.
N.C. Gen. Stat. § 1A-1, Rule 6 (2019).
In Lemons, our North Carolina Supreme Court concluded that Rule 6
permitted the trial court to grant an extension of time to serve a dormant summons,
and thus revive it, where the alias summons was served on the defendant after the
time for service of process under Rule 4(c) had expired. Lemons, 322 N.C. at 277, 367
S.E.2d at 658. The plaintiff commenced an action against the defendant on
6 February 1986. A summons was also issued that day but was not served. An alias
summons was issued on 2 May of that year and was served on 5 June, more than
thirty days2 after its issuance. On 13 October 1986, the plaintiff filed a motion for
retroactive extension of time, nunc pro tunc, from 2 June until 6 June to serve the
alias summons. Construing Rule 4 in para materia with Rule 6(b), the Court
determined that the General Assembly, by adopting Rule 6(b), gave trial courts the
authority to extend the time provided in Rule 4(c) to serve a summons upon a finding
2 At the time the summons was issued in this case, Rule 4(c) required process to be served
within thirty days. At the time the instant action was commenced, the time allowed under Rule 4(c)
was sixty days.
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Opinion of the Court
of excusable neglect, and thus to “breathe new life and effectiveness into [a dormant
summons] retroactively after it has become functus officio.” Id. at 274-75, 367 S.E.2d
at 657. The Court concluded that Rule 6 permitted an extension of time to serve a
dormant summons and thus revive it where the alias summons was served on the
defendant after the time for service of process under Rule 4(c) had expired. Id. at
277, 367 S.E.2d at 658.
Applying Lemons in Hollowell v. Carlisle, 115 N.C. App. 364, 444 S.E.2d 681
(1994), this Court concluded that Rule 6 permitted the trial court to grant a plaintiff
an extension of time to serve a dormant summons where no alias or pluries summons
was obtained. Id. at 368, 444 S.E.2d at 683. The defendant was served with the
original summons and complaint sometime between sixty-eight and ninety days after
issuance of the summons. Since the defendant “was served with a dormant summons
within the 90-day limit,” this Court held that “the trial court had the authority
pursuant to the language of Rule 6(b) to extend the time for service of process under
Rule 4(c), ‘to permit the act to be done where the failure to do the act was the result
of excusable neglect.’” Id. See also Wetchin v. Ocean Side Corp., 167 N.C. App. 756,
761, 606 S.E.2d 407, 410 (2005) (“The instant case is factually identical to Lemons.
The alias and pluries summons became dormant after sixty days, prior to plaintiffs’
effectuating service on 20 November 2002, but before the expiration of the summons
on 27 November 2002. The summons was merely dormant at the time of service; it
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VALENTINE V. SOLOSKO
Opinion of the Court
had not expired and the trial court had the discretion to retroactively extend the time
for service of the alias and pluries summons.”).
By contrast, in Dozier, this Court distinguished Lemons and concluded that
Rule 6(b) does not allow a party to continue an action beyond the ninety-day period
specified in Rule 4(e). Dozier, 105 N.C. App. at 77-78, 411 S.E.2d at 637-38. In Dozier,
the plaintiff filed an action on 15 March 1990 alleging personal injuries. A summons
was issued on that day but returned unserved twelve days later. Ninety-two days
after the issuance of the original summons, an alias or pluries summons was issued;
it was returned unserved eleven days later. The defendant accepted service on
20 August 1990 and filed a motion for judgment on the pleadings asserting the three-
year statute of limitations. The plaintiff moved pursuant to Rule 6 to extend the
period for issuance of the alias or pluries summons.
The Court explained that under Lemons, a trial court, pursuant to Rule 6, may
in its discretion and upon a finding of excusable neglect extend the time provided in
Rule 4(c) to serve a dormant summons and thus revive it. Id. Lemons did not control,
however, because the action before the Dozier Court had been discontinued. The
Court explained:
Rule 4(e) specifically provides that where there is neither
endorsement nor issuance of alias or pluries summons
within 90 days after issuance of the last preceding
summons, the action is discontinued as to any defendant
not served within the time allowed and treated as if it had
never been filed. Under Rule 4(e), either an extension can
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Opinion of the Court
be endorsed by the clerk or an alias or pluries summons
can be issued after the 90 days has run, but the action is
deemed to have commenced, as to such a defendant, on the
date of the endorsement or the issuance of the alias or
pluries summons. Thus, when plaintiff failed to have this
action continued through endorsement or issuance of alias
or pluries summons within 90 days, this action was
discontinued.
Id. at 78, 411 S.E.2d at 638 (internal quotation marks, emphasis, and citations
omitted).
Accordingly, “[w]hile Rule 6 under the Lemons case gives the trial court
discretion upon a showing of excusable neglect to permit an act to be done,” the Court
found “no authority in the rule or in Lemons to overrule the express language of Rule
4(e) as to the effect of failing to have an endorsement or alias or pluries summons
issued ‘within the time specified in Rule 4(d) . . . .’” Id.
Lemons and its progeny control this case, while Dozier involves a factual
situation which materially differs from that presented here. Unlike the defendant in
Dozier who was served some five months after the original summons was issued with
an alias summons that was issued outside the ninety-day time period prescribed by
Rule 4(d), Defendants in this case were served with the original summonses eighty-
one and eight-three days after issuance of the summonses. As in Hollowell,
Defendants were served with dormant summonses within the ninety-day limit
prescribed by Rule 4(d). Under Lemons, the trial court had the authority under Rule
6(b) to extend the time provided in Rule 4(c) to serve the summonses upon a finding
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VALENTINE V. SOLOSKO
Opinion of the Court
of excusable neglect, and thus to “breathe new life and effectiveness” into the dormant
summonses retroactively after they had become functus officio. Lemons, 322 N.C. at
274-75, 367 S.E.2d at 657. Accordingly, “the trial court had the authority pursuant
to the language of Rule 6(b) to extend the time for service of process under Rule 4(c),
‘to permit the act to be done where the failure to do the act was the result of excusable
neglect.’” Hollowell, 115 N.C. App. at 368, 444 S.E.2d at 683.
As the trial court found that Plaintiff’s service of the original summonses
outside the sixty-day period prescribed in Rule 4(c) was a result of excusable neglect,3
and the trial court had the authority to invoke its discretion to retroactively extend
the time for Plaintiff to serve the summonses and complaint to 23 May 2018 and to
explicitly deem service of process timely under Rule 4, the trial court did not err in
granting Plaintiff’s motion for an extension of time to serve the summonses and
complaint.4 Moreover, as service of process was deemed timely under Rule 4, the trial
court obtained personal jurisdiction over Defendants. See Fender v. Deaton, 130 N.C.
3 This finding is not challenged and is thus binding upon us. Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991). The trial court’s finding that Plaintiff’s failure to renew the alias
or pluries summons resulted from excusable neglect is not germane to this appeal, as the trial court
did not extend the time for suing out the second alias or pluries summons.
4 The trial court also found that “Plaintiff’s failure to renew her Alias and Pluries Summons
prior to the hearing of these Motions were the result of excusable neglect.” To the extent the trial
court’s order granting “Plaintiffs Motion to Extend the Time to Issue[], File and Serve Summonses and
Complaint” allowed Plaintiff an extension of time to renew her Alias and Pluries Summons, such
extension was erroneous under Dozier. See Dozier, 105 N.C. App. at 78, 411 S.E.2d at 638 (There is
“no authority in the rule or in Lemons to overrule the express language of Rule 4(e) as to the effect of
failing to have an endorsement or alias or pluries summons issued ‘within the time specified in Rule
4(d) . . . .’”).
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VALENTINE V. SOLOSKO
Opinion of the Court
App. 657, 659, 503 S.E.2d 707, 708 (1998) (“[I]t is well established that a court may
only obtain personal jurisdiction over a defendant by the issuance of summons and
service of process by one of the statutorily defined methods.”). Accordingly, Plaintiff’s
action was not barred by the statute of limitations. Thus, the trial court did not err
by denying Defendants’ motions to dismiss and for judgment on the pleadings.
IV. Conclusion
Because the trial court had the authority to exercise discretion under Rule 6(b)
to extend the time for Plaintiff to serve dormant summonses under Rule 4(c) upon a
finding of excusable neglect, we discern no legal error by the trial court. Accordingly,
we affirm the trial court’s order.
AFFIRMED.
Judges STROUD and BERGER concur.
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01-03-2023
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04-07-2020
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