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and Hollie chose (as opposed to having been instructed) not to speak to Denton. The district court noted that at trial it had given Hollie an opportunity to speak to Denton, and she had refused to do so. The court did not abuse its discretion in finding unfounded Denton’s claims that the government interfered with his right to establish a defense. B. Denton also contends that the newly discovered evidence demonstrates constitutional violations under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that, as a result, the district court abused its discretion by denying his motion for a new trial. “In order to succeed on a Giglio challenge, the defendant must demonstrate that the prosecutor knowingly used perjured testimony, or failed to correct what he subsequently learned was false testimony, and that the falsehood was material.” United States v. Vallejo, 297 F.3d 1154, 1163-64 (11th Cir. 2002) (quotation marks omitted). And to establish a Brady violation, a defendant must show that “(1) the government possessed favorable evidence to [him]; (2) [he] does not possess the evidence and could not obtain the evidence with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the evidence been disclosed to [him], there is a reasonable probability that the outcome would have been different.” Id. at 1164. When law enforcement was investigating Denton for the bank robbery, they interviewed Hollie and, during one of those interviews, Hollie gave consent to search the apartment where she lived with Jonathon and Denton. In her post-trial affidavit Hollie stated that she did not freely go to the police station to be interviewed about Denton and that investigators told her that she had no choice but to go to the station. Denton contends that those statements demonstrate Giglio and Brady violations because they show that Hollie did not freely consent to law enforcement searching the apartment, and that some resulting evidence should have been suppressed. Hollie’s affidavit, however, says nothing at all about the apartment search
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a defendant must show that “(1) the government possessed favorable evidence to [him]; (2) [he] does not possess the evidence and could not obtain the evidence with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the evidence been disclosed to [him], there is a reasonable probability that the outcome would have been different.” Id. at 1164. When law enforcement was investigating Denton for the bank robbery, they interviewed Hollie and, during one of those interviews, Hollie gave consent to search the apartment where she lived with Jonathon and Denton. In her post-trial affidavit Hollie stated that she did not freely go to the police station to be interviewed about Denton and that investigators told her that she had no choice but to go to the station. Denton contends that those statements demonstrate Giglio and Brady violations because they show that Hollie did not freely consent to law enforcement searching the apartment, and that some resulting evidence should have been suppressed. Hollie’s affidavit, however, says nothing at all about the apartment search or her consent to it. Even if her post-trial statements about not freely going to the police station were true, that would not render the apartment search unconstitutional, nor would it demonstrate a Giglio or Brady violation. See United States v. Jones, 475 F.2d 723, 730 (5th Cir. 1973) (“[A] defendant under arrest or in custody may voluntarily consent to a search.,..”). The district court did not abuse its discretion in rejecting Denton’s request for a new trial based on Hollie’s affidavit. In his affidavit, Jonathon stated that investigators had told him he would not be charged for any crimes related to the bank robbery if he testified against his father by identifying his father in the bank security camera footage. Denton contends that Jonathon’s affidavit demonstrates Giglio and Brady violations because it shows that the prosecution knowingly permitted Jonathon to commit perjury at trial and suppressed evidence by permitting Jonathon to state that he had not been promised anything in exchange for his testimony. The district court found that those statements in Jonathon’s affidavit were not
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or her consent to it. Even if her post-trial statements about not freely going to the police station were true, that would not render the apartment search unconstitutional, nor would it demonstrate a Giglio or Brady violation. See United States v. Jones, 475 F.2d 723, 730 (5th Cir. 1973) (“[A] defendant under arrest or in custody may voluntarily consent to a search.,..”). The district court did not abuse its discretion in rejecting Denton’s request for a new trial based on Hollie’s affidavit. In his affidavit, Jonathon stated that investigators had told him he would not be charged for any crimes related to the bank robbery if he testified against his father by identifying his father in the bank security camera footage. Denton contends that Jonathon’s affidavit demonstrates Giglio and Brady violations because it shows that the prosecution knowingly permitted Jonathon to commit perjury at trial and suppressed evidence by permitting Jonathon to state that he had not been promised anything in exchange for his testimony. The district court found that those statements in Jonathon’s affidavit were not credible. It noted that Jonathon’s testimony against Denton at trial—that the man in the bank security video walked like Denton—was consistent with the court’s own observations of Denton’s gait during the trial. The court also noted that Denton had attempted to have Jonathon testify falsely in Denton’s favor at trial, which further undermined the credibility of Jonathon’s post-trial statements in the affidavit. As a result the district court did. not abuse its discretion in concluding that the newly discovered evidence did not demonstrate either a Giglio violation (because Jonathon did not perjure himself at trial) or a Bra-dyviolation (because those statements did not credibly show that the prosecution suppressed any favorable testimony Jonathon could have given). III. Denton also contends that the district court abused its discretion in failing to hold an evidentiary hearing on his newly discovered evidence claims. The district court found that, based on the record and insight gained from presiding at trial, the relevant statements in the affidavits were not credible and Denton’s claims lacked merit. It was permitted to make that finding
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credible. It noted that Jonathon’s testimony against Denton at trial—that the man in the bank security video walked like Denton—was consistent with the court’s own observations of Denton’s gait during the trial. The court also noted that Denton had attempted to have Jonathon testify falsely in Denton’s favor at trial, which further undermined the credibility of Jonathon’s post-trial statements in the affidavit. As a result the district court did. not abuse its discretion in concluding that the newly discovered evidence did not demonstrate either a Giglio violation (because Jonathon did not perjure himself at trial) or a Bra-dyviolation (because those statements did not credibly show that the prosecution suppressed any favorable testimony Jonathon could have given). III. Denton also contends that the district court abused its discretion in failing to hold an evidentiary hearing on his newly discovered evidence claims. The district court found that, based on the record and insight gained from presiding at trial, the relevant statements in the affidavits were not credible and Denton’s claims lacked merit. It was permitted to make that finding under our Reed decision. 887 F.2d at 1404 n.12. The district court did not abuse its discretion in deciding that no evidentia-ry hearing was required. AFFIRMED. . After Denton filed his notice of appeal from the denial of his Rule 33 motion, he filed a motion for reconsideration, which the district court denied. Then he filed a motion to vacate the dismissal of the motion for reconsideration, which the district court also denied. He filed a new notice of appeal of those two orders, and we consolidated that appeal with the present one. Because Denton has not addressed the part of the district court’s judgment denying his motion to reconsider or his motion to vacate, he has abandoned any argument challenging those decisions. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). . We use the Todds’ first names not to be overly familiar but for ease of reference. . Denton also contends that the government failed to disclose other exculpatory evidence before trial. The evidence he points to is eyewitness Sims’ statement to
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under our Reed decision. 887 F.2d at 1404 n.12. The district court did not abuse its discretion in deciding that no evidentia-ry hearing was required. AFFIRMED. . After Denton filed his notice of appeal from the denial of his Rule 33 motion, he filed a motion for reconsideration, which the district court denied. Then he filed a motion to vacate the dismissal of the motion for reconsideration, which the district court also denied. He filed a new notice of appeal of those two orders, and we consolidated that appeal with the present one. Because Denton has not addressed the part of the district court’s judgment denying his motion to reconsider or his motion to vacate, he has abandoned any argument challenging those decisions. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). . We use the Todds’ first names not to be overly familiar but for ease of reference. . Denton also contends that the government failed to disclose other exculpatory evidence before trial. The evidence he points to is eyewitness Sims’ statement to law enforcement that the man driving the car fleeing from the bank robbery was "a black man with a gold grill.” Sims, however, testified at trial that the driver of the fleeing car was "a black man with a gold grill.” Assuming that the govemment did not disclose that evidence to Denton before trial, Denton heard it at trial and any alleged non-disclosure of it was not newly discovered evidence found after the trial ended. Denton should have raised any arguments about non-disclosure during the trial or within 14 days "after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). He failed to do so.
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Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Victor Broadhurst was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). Broadhurst pled guilty, reserving the right to appeal the district court’s order denying his motion to suppress a firearm recovered after a pat-down search of his person. Broadhurst argues that the district court erred in denying his motion to suppress because the police violated his Fourth Amendment rights by conducting a Terry stop without reasonable suspicion and, as a result, the officers’ subsequent search for weapons was unlawful. In an appeal from the denial of a motion to suppress, we review the district court’s legal determinations de novo and factual findings for clear error. United States v. Wharton, 840 F.3d 163, 168 (4th Cir. 2016). We construe the evidence in the light most favorable to the government, id,, and defer to the district court’s credibility findings. United States v. Griffin, 689 F.3d 148, 150 n.1 (4th Cir. 2009). Consistent with the Fourth Amendment, a police officer may conduct a brief investigatory stop, known as a Terry stop, “when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868). “[I]n connection with such a seizure or stop, if presented with a reasonable belief that the person may be armed and presently dangerous, an officer may conduct a protective frisk.” United States v. Black, 525 F.3d 359, 364 (4th Cir. 2008). In assessing whether a Terry stop was supported by reasonable, articulable suspicion, we must consider the “totality of the circumstances ... to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation marks and citation omitted). “Thus, factors which by themselves suggest only innocent conduct may amount to reasonable suspicion when taken together.” United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004).
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officer may conduct a brief investigatory stop, known as a Terry stop, “when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868). “[I]n connection with such a seizure or stop, if presented with a reasonable belief that the person may be armed and presently dangerous, an officer may conduct a protective frisk.” United States v. Black, 525 F.3d 359, 364 (4th Cir. 2008). In assessing whether a Terry stop was supported by reasonable, articulable suspicion, we must consider the “totality of the circumstances ... to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation marks and citation omitted). “Thus, factors which by themselves suggest only innocent conduct may amount to reasonable suspicion when taken together.” United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004). While an officer’s “hunch” will not justify a stop, Terry, 392 U.S. at 27, 88 S.Ct. 1868, we “give due weight to common sense judgments reached by officers in light of their experience and training.” Perkins, 363 F.3d at 321. “In cases where an informant’s tip supplies part of the basis for reasonable suspicion, we must ensure that the tip possesses sufficient indicia of reliability.” Id. at 323. With these standards in mind, after reviewing the parties’ briefs and the materials submitted in the joint appendix, and fully considering the arguments, we conclude that the district court did not err in denying the motion to suppress. We therefore affirm the district court’s criminal judgment. 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 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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HAZEL, District Judge. This is an involuntary proceeding in bankruptcy. The petitioning creditors are Dunn, Salmon & Co., a corporation, the Bank of Batavia, a banking corporation, and D. Armstrong & Co., a co-partnership. The special master to whom the matter was referred to take proof and report has found that the firm of Gillette & Prentice have committed acts of bankruptcy while insolvent, and within four months previous to the filing of the petition, in this: that the alleged bankrupt, Gillette, on or about the 3d day of January, 1900, conveyed and transferred to William E. Webster, his brother-in-law, who acted in behalf of Sarah A.. Showerman and Jennie R. Showerman, a material part of the property of the firm (being-stock of goods and fixtures owned, by the firm), with intent to hinder, delay, and defraud the creditors of the firm; that said firm has committed a further act of bankruptcy, in that while insolvent, 'and within four months previous to the filing of the petition, the said firm, through the alleged bankrupt, Gillette, on or about the 3d day of January, 1900, conveyed and transferred to the Bank of Batavia, one of the petitioners herein, the sum of $4,000 (being a part of the property of the firm of Gillette & Prentice), in payment of the individual debt of said Gillette, with intent to hinder, delay, and defraud the creditors of the firm. After the most careful consideration of the evidence in this case, I have no hesitation in sustaining the report of the special master in reference to the acts of bankruptcy committed by the alleged bankrupts. The Bank of Batavia had previous knowledge of the insolvent condition of the firm of Gillette & Prentice when it accepted payment of the note. The facts are substantially as follows: A few days before the payment of the note to the bank the president of the bank became aware of the insolvent condition of the alleged bankrupts. January 2, 1900, Mr. Armstrong, one of the petitioners herein, the president of the bank, and Gillette talked over the financial affairs of
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or about the 3d day of January, 1900, conveyed and transferred to the Bank of Batavia, one of the petitioners herein, the sum of $4,000 (being a part of the property of the firm of Gillette & Prentice), in payment of the individual debt of said Gillette, with intent to hinder, delay, and defraud the creditors of the firm. After the most careful consideration of the evidence in this case, I have no hesitation in sustaining the report of the special master in reference to the acts of bankruptcy committed by the alleged bankrupts. The Bank of Batavia had previous knowledge of the insolvent condition of the firm of Gillette & Prentice when it accepted payment of the note. The facts are substantially as follows: A few days before the payment of the note to the bank the president of the bank became aware of the insolvent condition of the alleged bankrupts. January 2, 1900, Mr. Armstrong, one of the petitioners herein, the president of the bank, and Gillette talked over the financial affairs of the alleged bankrupts. After discussing the amount of the assets and other property, the aggregate of which was not sufficient to pay their debts, a settlement of 50 cents on the dollar was recommended by the president of the bank, representing tlie Bank of Batavia, one of tlie petitioners herein, and Mr. Armstrong, representing 1). Armstrong & Co., also petitioners herein. The stock and fixtures inventoried $7,200, and were claimed to be of the estimated value of $4,320. The liabilities at this time were estimated at $5,300. January 3, 1900, Webster bought the property for $4,000, with money received from Mrs. fcShowerman and her daughter, who are mother-in-law and sister-in-law, respectively, of Gillette, and paid the sum of $4,000 to Gillette, who immediately thereafter paid the note at the bank, instead of using the money received in an endeavor to compromise with his creditors, of which there wras talk between two of the petitioners herein and Mr. Gillette and Mr. Webster. January 4, 1900, the petition herein was filed to have the firm of Gillette
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the alleged bankrupts. After discussing the amount of the assets and other property, the aggregate of which was not sufficient to pay their debts, a settlement of 50 cents on the dollar was recommended by the president of the bank, representing tlie Bank of Batavia, one of tlie petitioners herein, and Mr. Armstrong, representing 1). Armstrong & Co., also petitioners herein. The stock and fixtures inventoried $7,200, and were claimed to be of the estimated value of $4,320. The liabilities at this time were estimated at $5,300. January 3, 1900, Webster bought the property for $4,000, with money received from Mrs. fcShowerman and her daughter, who are mother-in-law and sister-in-law, respectively, of Gillette, and paid the sum of $4,000 to Gillette, who immediately thereafter paid the note at the bank, instead of using the money received in an endeavor to compromise with his creditors, of which there wras talk between two of the petitioners herein and Mr. Gillette and Mr. Webster. January 4, 1900, the petition herein was filed to have the firm of Gillette & Prentice adjudged bankrupts. The indebtedness of the Bank of Batavia, upon which it claims the right to petition herein, is a note of $2,300 due and owing by Gillette & Prentice as partners. It is insisted on the part of the Bank of Batavia that it accepted the sum of $4,000 to apply on an individual note of Gillette, in the ordinary course of business, and without any knowledge of the facts, and that the bank had no alternative; that, when payment of this note was tendered by the maker, it was obliged to accept such payment, and cancel and deliver up the note, as it did. It seems to me that the negotiations existing between the president of the bank and Gilletie and Webster a few days before the petition herein to adjudicate Gillette & Prentice bankrupts was filed gave sufficient knowledge to Che Bank of Batavia of the insolvency of Gillette & Prentice. The circumstances attending their negotiations give rise to more than a suspicion of possible insolvency. The bank had more than
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& Prentice adjudged bankrupts. The indebtedness of the Bank of Batavia, upon which it claims the right to petition herein, is a note of $2,300 due and owing by Gillette & Prentice as partners. It is insisted on the part of the Bank of Batavia that it accepted the sum of $4,000 to apply on an individual note of Gillette, in the ordinary course of business, and without any knowledge of the facts, and that the bank had no alternative; that, when payment of this note was tendered by the maker, it was obliged to accept such payment, and cancel and deliver up the note, as it did. It seems to me that the negotiations existing between the president of the bank and Gilletie and Webster a few days before the petition herein to adjudicate Gillette & Prentice bankrupts was filed gave sufficient knowledge to Che Bank of Batavia of the insolvency of Gillette & Prentice. The circumstances attending their negotiations give rise to more than a suspicion of possible insolvency. The bank had more than reasonable cause to believe that Gillette & Prentice were insolvent. Tlie facts and circumstances of their financial condition were brought home to the bank, and the president of the bank sufficiently interested himself in the financial condition of the debtors to place himself in communication with other debtors and endeavor to effect a compromise. In re Eggert (C. C. A.) 102 Fed. 735, 4 Am. Bankr. R. 449. It follows that the Bank of Batavia is chargeable with that knowledge of the facts which such inquiries as its president made should reasonably be expected to disclose. In Re Conhain (D. C.) 97 Fed. 923, 2 Nat. Bankr. N. 148, the court said: “Where a hank holds several notes of a bankrupt, and payments hare been made within four months before the filing of the petition in bankruptcy, and after the petitioner became, insolvent. and those payments have been so applied Thai one of the note's is left wholly unpaid, the hank cannot assume the position of an nnpreferred creditor as to this wholly unpaid promissory note:
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reasonable cause to believe that Gillette & Prentice were insolvent. Tlie facts and circumstances of their financial condition were brought home to the bank, and the president of the bank sufficiently interested himself in the financial condition of the debtors to place himself in communication with other debtors and endeavor to effect a compromise. In re Eggert (C. C. A.) 102 Fed. 735, 4 Am. Bankr. R. 449. It follows that the Bank of Batavia is chargeable with that knowledge of the facts which such inquiries as its president made should reasonably be expected to disclose. In Re Conhain (D. C.) 97 Fed. 923, 2 Nat. Bankr. N. 148, the court said: “Where a hank holds several notes of a bankrupt, and payments hare been made within four months before the filing of the petition in bankruptcy, and after the petitioner became, insolvent. and those payments have been so applied Thai one of the note's is left wholly unpaid, the hank cannot assume the position of an nnpreferred creditor as to this wholly unpaid promissory note: for the prohibition contained in section 57g is not limited to the particular debt or chose' in action on account of which a preference has been received, but it refers to creditors who have received a preference", and provides that tlie claim of such creditors shall not he allowed unless they surrender the preference received.” The distinction between the Conhaim Case and the case at bar is that here the note paid was an individual obligation of Gillette, while the indebtedness claimed by the bank to be a provable claim is a promissory note made jointly by the alleged bankrupts. The money paid, however, to the bank was the proceeds of the partnership property owned by Gillette & Prentice; and such a transfer is fraudulent and void as to the creditors of the firm, unless the firm was at the time solvent, and sufficient property remained to pay the partnership debts. Menagh v. Whitwell, 52 N. Y. 146. The proceeds of the sale of partnership property, where an adjudication in bankruptcy is had, must be appropriated
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for the prohibition contained in section 57g is not limited to the particular debt or chose' in action on account of which a preference has been received, but it refers to creditors who have received a preference", and provides that tlie claim of such creditors shall not he allowed unless they surrender the preference received.” The distinction between the Conhaim Case and the case at bar is that here the note paid was an individual obligation of Gillette, while the indebtedness claimed by the bank to be a provable claim is a promissory note made jointly by the alleged bankrupts. The money paid, however, to the bank was the proceeds of the partnership property owned by Gillette & Prentice; and such a transfer is fraudulent and void as to the creditors of the firm, unless the firm was at the time solvent, and sufficient property remained to pay the partnership debts. Menagh v. Whitwell, 52 N. Y. 146. The proceeds of the sale of partnership property, where an adjudication in bankruptcy is had, must be appropriated to the payment of the partnership debts. Should any surplus of the partnership property remain after paying the partnership debts, such surplus is added to the assets of the individual partners. Section 5f of the bankrupt act. Proof of the claim of the partnership estate against individual estates, and vice versa, is permitted. Both the individual estates and partnership' estate may be marshaled, so as to prevent preferences, and secure an equitable distribution of the property of the several .estates. Section 5g. The transfer of the partnership interest by Prentice to Gillette does not deprive creditors of the right to hold partnership assets for payment of their claims; and creditors having claims against an insolvent debtor who is a member of a co-partnership cannot, where the debtor has been adjudicated bankrupt, receive dividends from partnership assets until the co-partnership creditors have been paid in full. In re Wilcox (D. C.) 94 Fed. 84, 2 Am. Bankr. R. 117. I am of the opinion that the payment of-$4,000 to the bank was an unlawful preference, which
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to the payment of the partnership debts. Should any surplus of the partnership property remain after paying the partnership debts, such surplus is added to the assets of the individual partners. Section 5f of the bankrupt act. Proof of the claim of the partnership estate against individual estates, and vice versa, is permitted. Both the individual estates and partnership' estate may be marshaled, so as to prevent preferences, and secure an equitable distribution of the property of the several .estates. Section 5g. The transfer of the partnership interest by Prentice to Gillette does not deprive creditors of the right to hold partnership assets for payment of their claims; and creditors having claims against an insolvent debtor who is a member of a co-partnership cannot, where the debtor has been adjudicated bankrupt, receive dividends from partnership assets until the co-partnership creditors have been paid in full. In re Wilcox (D. C.) 94 Fed. 84, 2 Am. Bankr. R. 117. I am of the opinion that the payment of-$4,000 to the bank was an unlawful preference, which gave to the Bank of Batavia a greater percentage of its debt against Gillette, as an individual, than any other creditor. An important question in this case, however, and which was not presented to the special master, is whether the Bank of Batavia, which has accepted and retains an unlawful, preference, may petition to have the said Gillette & Prentice, from whom such unlawful preference was obtained, declared involuntary bankrupts. By section 59b of the bankrupt act it is provided that: “Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to five hundred dollars or over; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt.” It is argued with much force that the true intent of the act contemplates that where a petition is filed by three creditors, and for any reason it
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gave to the Bank of Batavia a greater percentage of its debt against Gillette, as an individual, than any other creditor. An important question in this case, however, and which was not presented to the special master, is whether the Bank of Batavia, which has accepted and retains an unlawful, preference, may petition to have the said Gillette & Prentice, from whom such unlawful preference was obtained, declared involuntary bankrupts. By section 59b of the bankrupt act it is provided that: “Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to five hundred dollars or over; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt.” It is argued with much force that the true intent of the act contemplates that where a petition is filed by three creditors, and for any reason it is claimed that one of such creditors is disqualified from uniting in that petition, that fact -must be set forth by answer, in order that the facts denied may be submitted to the special master for examination; that the answer in this case, by not denying that the petitioners have provable claims against the co-partnership assets, admits the allegation, and it is too late, after the master has made his report and all the evidence has been taken, to raise this question; and that the Bank of Batavia has a provable debt against the co-partnership assets, whatever may be said of its claim against the individual assets of Gillette. Under the act of 1867, a person who committed an act of bankruptcy was adjudged a bankrupt on the petition of one or more of his creditors, the aggregate of whose debts provable under the act amounted to at least $250. When under that act a person was adjudged a bankrupt, his assignee was empowered to recover back the money or other property so paid, conveyed,
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is claimed that one of such creditors is disqualified from uniting in that petition, that fact -must be set forth by answer, in order that the facts denied may be submitted to the special master for examination; that the answer in this case, by not denying that the petitioners have provable claims against the co-partnership assets, admits the allegation, and it is too late, after the master has made his report and all the evidence has been taken, to raise this question; and that the Bank of Batavia has a provable debt against the co-partnership assets, whatever may be said of its claim against the individual assets of Gillette. Under the act of 1867, a person who committed an act of bankruptcy was adjudged a bankrupt on the petition of one or more of his creditors, the aggregate of whose debts provable under the act amounted to at least $250. When under that act a person was adjudged a bankrupt, his assignee was empowered to recover back the money or other property so paid, conveyed, sold, assigned, or transferred contrary to the act; and the person receiving such preference, having reasonable cause to believe that fraud under the act was intended, was not permitted to prove his debt in bankruptcy. It is generally held by the decisions that a creditor who has given his consent to an act is estopped from thereafter urging it as an act of bankruptcy. In re Israel, 12 N. B. R. 204, Fed. Cas. No. 7,111; In re Schuyler, 2 N. B. R. 249, Fed. Cas. No. 12,494; In re Williams, 14 N. B. R. 132, Fed. Cas. No. 17,-706. Creditors who had been fraudulently preferred were not counted, in determining whether a sufficient number had joined in the petition. In re Israel, supra; In re Hunt, 5 N. B. R. 493, Fed. Cas. No. 6,883; Clinton v. Mayo, 12 N. B. R. 39, Fed. Cas. No. 2,899; In re Rosenfields, 11 N. B. R. 86, Fed. Cas. No. 12,061. In Re Rado, 6 Ben. 230, Fed. Cas. No. 11,522, it was held that: “A petition
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sold, assigned, or transferred contrary to the act; and the person receiving such preference, having reasonable cause to believe that fraud under the act was intended, was not permitted to prove his debt in bankruptcy. It is generally held by the decisions that a creditor who has given his consent to an act is estopped from thereafter urging it as an act of bankruptcy. In re Israel, 12 N. B. R. 204, Fed. Cas. No. 7,111; In re Schuyler, 2 N. B. R. 249, Fed. Cas. No. 12,494; In re Williams, 14 N. B. R. 132, Fed. Cas. No. 17,-706. Creditors who had been fraudulently preferred were not counted, in determining whether a sufficient number had joined in the petition. In re Israel, supra; In re Hunt, 5 N. B. R. 493, Fed. Cas. No. 6,883; Clinton v. Mayo, 12 N. B. R. 39, Fed. Cas. No. 2,899; In re Rosenfields, 11 N. B. R. 86, Fed. Cas. No. 12,061. In Re Rado, 6 Ben. 230, Fed. Cas. No. 11,522, it was held that: “A petition in involuntary bankruptcy which states the giving to the petitioner of an unlawful preference in respect to a debt, but does not surrender the preference, will be dismissed.” Section 59b and section 60 of the act of 1898 are similar to the provisions of the act of 1867, in the point under discussion, except that: uuder the act of 1898 three or more creditors who have provable claims are required to petition to have a person adjudged an involuntary bankrupt, while under the former act one or more persons were required for this purpose. By the amendment of 1874 jurisdiction is given in involuntary proceedings only in cases where a fourth in number and a third in value of the creditors unite in the petition. By section 57g of the present act it is provided, as we have seen, that "the claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences”; and it is held that an innocent creditor may keep a preference which he receives, but he
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in involuntary bankruptcy which states the giving to the petitioner of an unlawful preference in respect to a debt, but does not surrender the preference, will be dismissed.” Section 59b and section 60 of the act of 1898 are similar to the provisions of the act of 1867, in the point under discussion, except that: uuder the act of 1898 three or more creditors who have provable claims are required to petition to have a person adjudged an involuntary bankrupt, while under the former act one or more persons were required for this purpose. By the amendment of 1874 jurisdiction is given in involuntary proceedings only in cases where a fourth in number and a third in value of the creditors unite in the petition. By section 57g of the present act it is provided, as we have seen, that "the claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences”; and it is held that an innocent creditor may keep a preference which he receives, but he is not permitted to share in the distribution of the bankrupt’s estate unless the preference received by such creditor is surrendered. Electric Co. v. Worden, 39 C. C. A. 582, 99 Fed. 400, 2 Nat. Bankr. N. 434. But compare In re Smoke (D. C.) 104 Fed. 289, 4 Am. Bankr. R. 434; In re Alexander (D. C.) 102 Fed. 464, 4 Am. Bankr. R. 376; and In re Piper, 2 Nat. Bankr. N. 7. The fact, therefore, that three or more creditors who have provable claims may tile a petition to have a person adjudged a bankrupt is strictly a jurisdictional one. The authorities under the act of 1867 bear out this contention. In Re Mason (D. C.) 99 Fed. 256, 2 N. B. R. 425, the court said: “Want of jurisdiction over the subject-matter may be taken advantage of at any time, and it may be collaterally attacked; but, where the objection goes merely to want of jurisdiction of the person or thing, there may be a waiver of the objection or restriction as
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is not permitted to share in the distribution of the bankrupt’s estate unless the preference received by such creditor is surrendered. Electric Co. v. Worden, 39 C. C. A. 582, 99 Fed. 400, 2 Nat. Bankr. N. 434. But compare In re Smoke (D. C.) 104 Fed. 289, 4 Am. Bankr. R. 434; In re Alexander (D. C.) 102 Fed. 464, 4 Am. Bankr. R. 376; and In re Piper, 2 Nat. Bankr. N. 7. The fact, therefore, that three or more creditors who have provable claims may tile a petition to have a person adjudged a bankrupt is strictly a jurisdictional one. The authorities under the act of 1867 bear out this contention. In Re Mason (D. C.) 99 Fed. 256, 2 N. B. R. 425, the court said: “Want of jurisdiction over the subject-matter may be taken advantage of at any time, and it may be collaterally attacked; but, where the objection goes merely to want of jurisdiction of the person or thing, there may be a waiver of the objection or restriction as to the manner and time of making it.” And in Carriage Co. v. Stengel, 37 C. C. A. 210, 95 Fed. 637, 2 Am. Bankr. R. 883, Judge Taft said: “Where petition in an involuntary proceeding is answered without objection to its form, by such answer the parties have waived all formal and modal defects in the petition which do not reach to the jurisdiction of the court.” The petitioning creditors in involuntary proceedings must come within the provisions of section 59b of the bankrupt act. It is necessary that three creditors unite, and show that their claims, in excess of the value of securities held by them, amount to over $500. If this is. not done, jurisdiction is not conferred on the court. In re Rogers Milling Co. (D. C.) 102 Fed. 687, 2 Nat. Bankr. N. 978, is a case analogous to the one at bar. The Rogers Milling Company within four months next before the filing of the petition gave a note of $1,500 to the petitioning creditor. The debt upon which the petition was
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to the manner and time of making it.” And in Carriage Co. v. Stengel, 37 C. C. A. 210, 95 Fed. 637, 2 Am. Bankr. R. 883, Judge Taft said: “Where petition in an involuntary proceeding is answered without objection to its form, by such answer the parties have waived all formal and modal defects in the petition which do not reach to the jurisdiction of the court.” The petitioning creditors in involuntary proceedings must come within the provisions of section 59b of the bankrupt act. It is necessary that three creditors unite, and show that their claims, in excess of the value of securities held by them, amount to over $500. If this is. not done, jurisdiction is not conferred on the court. In re Rogers Milling Co. (D. C.) 102 Fed. 687, 2 Nat. Bankr. N. 978, is a case analogous to the one at bar. The Rogers Milling Company within four months next before the filing of the petition gave a note of $1,500 to the petitioning creditor. The debt upon which the petition was based was a separate and distinct debt from the note which was paid, but they were both promissory notes, and both in existence at the time the payment of the $1,500 was made. This, it was held, was an unlawful preference, and therefore the creditor could not maintain a petition, as long as such preference was not surrendered; and the court, distinguishing the cases in point under the act of 1867, said: “Only creditors who have provable claims may file a petition to have one adjudged a bankrupt, and the claims of any creditor are provable, under these decisions, as long as he may not hold an unlawful preference.” , It was held by this court, in an unreported case, where the facts showed that a preference was obtained by a judgment creditor, that, the preference so obtained not being a fraudulent one, the creditor was not estopped from filing the petition. The judgment creditor did, however, by its preference, obtain a greater percentage of its debt than any other creditor; and therefore it was held that,
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based was a separate and distinct debt from the note which was paid, but they were both promissory notes, and both in existence at the time the payment of the $1,500 was made. This, it was held, was an unlawful preference, and therefore the creditor could not maintain a petition, as long as such preference was not surrendered; and the court, distinguishing the cases in point under the act of 1867, said: “Only creditors who have provable claims may file a petition to have one adjudged a bankrupt, and the claims of any creditor are provable, under these decisions, as long as he may not hold an unlawful preference.” , It was held by this court, in an unreported case, where the facts showed that a preference was obtained by a judgment creditor, that, the preference so obtained not being a fraudulent one, the creditor was not estopped from filing the petition. The judgment creditor did, however, by its preference, obtain a greater percentage of its debt than any other creditor; and therefore it was held that, in order to maintain its petition, such preference so obtained must be surrendered. It was required of the petitioner who had obtained the preference that, before an order adjudicating the alleged bankrupts could be entered, it pay into court the amount of money received by it. That ruling will be followed in this case. The Bank of Batavia cannot maintain its petition to adjudicate Gillette & Prentice bankrupts so long as the bank does not surrender the preference obtained by it. I am asked by counsel for petitioners, if I come to the conclusion that an adjudication in bankruptcy cannot be had upon this petition, that the proceedings be not dismissed, but that an order t'o show cause be entered, and served upon creditors who have not petitioned, requiring one or more of them to enter their appearance and join in this petition. Such a proceeding, it is claimed, would be justified by section 59f, which reads as follows: “Greditorfc other than original petitioners may at any time enter their appearance and join in the petition or
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in order to maintain its petition, such preference so obtained must be surrendered. It was required of the petitioner who had obtained the preference that, before an order adjudicating the alleged bankrupts could be entered, it pay into court the amount of money received by it. That ruling will be followed in this case. The Bank of Batavia cannot maintain its petition to adjudicate Gillette & Prentice bankrupts so long as the bank does not surrender the preference obtained by it. I am asked by counsel for petitioners, if I come to the conclusion that an adjudication in bankruptcy cannot be had upon this petition, that the proceedings be not dismissed, but that an order t'o show cause be entered, and served upon creditors who have not petitioned, requiring one or more of them to enter their appearance and join in this petition. Such a proceeding, it is claimed, would be justified by section 59f, which reads as follows: “Greditorfc other than original petitioners may at any time enter their appearance and join in the petition or file an answer and may he heard in opposition to the prayer of the petition.” No power is vested in the court by the bankrupt act of 1898, nor was any power vested in the bankruptcy court by any previous act, to compel a creditor to become a petitioner in an involuntary proceeding. It was said in Neustadter v. Dry-Goods Co. (D. C.) 96 Fed. 830, 3 Am. Bankr. R. 98, that: “There is no right given to other creditors to come in and take the conduct of the case out of the hands of the original petitioners, and it cannot reasonably be presumed that congress intended to authorize different creditors to come in successively and retry issues which have been decided, and in that way make the pendency of involuntary cases perpetual.” The alleged bankrupts cannot be deprived of setting up a defense to a new petition, nor ought they to be barred from contesting the right to petition of new, parties. It is insisted by counsel for the alleged bankrupts that D. Armstrong & Co., other petitioners
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file an answer and may he heard in opposition to the prayer of the petition.” No power is vested in the court by the bankrupt act of 1898, nor was any power vested in the bankruptcy court by any previous act, to compel a creditor to become a petitioner in an involuntary proceeding. It was said in Neustadter v. Dry-Goods Co. (D. C.) 96 Fed. 830, 3 Am. Bankr. R. 98, that: “There is no right given to other creditors to come in and take the conduct of the case out of the hands of the original petitioners, and it cannot reasonably be presumed that congress intended to authorize different creditors to come in successively and retry issues which have been decided, and in that way make the pendency of involuntary cases perpetual.” The alleged bankrupts cannot be deprived of setting up a defense to a new petition, nor ought they to be barred from contesting the right to petition of new, parties. It is insisted by counsel for the alleged bankrupts that D. Armstrong & Co., other petitioners herein, are estopped from claiming that the transfer to Webster was an act of bankruptcy, because that firm consented to and advised sucli transfer. I can find no evidence in the case that would jusiify holding that the creditors Armstrong & Co. have not the right to petition in this proceeding, or that they are precluded from so doing. The conversation between Gillette, Webster, and Armstrong was to the effect that a sale of the partnership assets for the sum of $4,000 was advisable. Negotiations were then pending or under way to distribute the proceeds of the sale of stock of the firm of Gillette & Prentice to the creditors of the fern by paying them 50 cents on the dollar. This was not done. The proceeds of the sale of the property, as we have seen, were diverted to another purpose. If, however, any creditors affected thereby, not parries to this proceeding, deem themselves entitled t'o consideration by virtue of section 59g, they will be given an opportunity to enter their appearance and join
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herein, are estopped from claiming that the transfer to Webster was an act of bankruptcy, because that firm consented to and advised sucli transfer. I can find no evidence in the case that would jusiify holding that the creditors Armstrong & Co. have not the right to petition in this proceeding, or that they are precluded from so doing. The conversation between Gillette, Webster, and Armstrong was to the effect that a sale of the partnership assets for the sum of $4,000 was advisable. Negotiations were then pending or under way to distribute the proceeds of the sale of stock of the firm of Gillette & Prentice to the creditors of the fern by paying them 50 cents on the dollar. This was not done. The proceeds of the sale of the property, as we have seen, were diverted to another purpose. If, however, any creditors affected thereby, not parries to this proceeding, deem themselves entitled t'o consideration by virtue of section 59g, they will be given an opportunity to enter their appearance and join in the petition within the time hereinafter limited. Upon deposit with the clerk of this court of the sum of $4,000, the amount of the preference obtained by one of the petitioning creditors, the Bank of Batavia, within 20 days from the entry and service of an order to that effect, an order of adjudication may be entered herein; otherwise, the proceeding is dismissed. Within such time limited, however, any innocent creditor may intervene herein, and the matter may then be disposed of in accordance with the provisions of section 59f of the bankrupt act.
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OPINION IKUTA, Circuit Judge: Today we hold that we lack appellate jurisdiction to review a federal district court order remanding a case to state court based on a ground colorably characterized as a “defect” for purposes of 28 U.S.C. § 1447(c). See 28 U.S.C. § 1447(d); Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007). I In October 2008, a fire caused over $10 million in damage to buildings and property owned by Lebanon Hardboard, LLC. Atlantic National Trust, LLC (“Atlantic”) had loaned money to Lebanon Hardboard secured by interests in the buildings and property. The loan agreements required Lebanon Hardboard to maintain fire insurance on the property for the benefit of Atlantic, and to assign all insurance proceeds to Atlantic. Tritalent Funding Group, LLC (“Tritalent”) had also loaned money to Lebanon Hardboard and had likewise obtained a security interest in the buildings and property. Before the fire, Lebanon Hardboard submitted an application for fire insurance to Crump Insurance Services, Inc. (“Crump”) and Chamberlain Insurance Agency LLC (“Chamberlain”), both of which were agents of Mt. Hawley Insurance Company (“MtHawley”). Mt. Hawley issued an insurance binder (the actual policy was not delivered until after the fire) to Lebanon Hardboard with a $4 million per occurrence limit, but the binder did not designate Atlantic or Tritalent as mortgagees or loss payees. After the fire, Atlantic demanded payment under the policy from Lebanon Hardboard and Mt. Hawley. Mt. Hawley denied that Atlantic was covered by the insurance policy or that it had any obligation to pay Atlantic. On February 20, 2009, Atlantic filed a complaint for damages and declaratory relief against Mt. Hawley, Crump, Chamberlain, Lebanon Hardboard, and Tritalent in Oregon state court. Atlantic sought, among other things, reformation of the contract and a declaration that Atlantic’s rights to the insurance proceeds were superior to Tritalent’s and Lebanon Hardboard’s. Atlantic gave Lebanon Hardboard and Mt. Hawley courtesy copies of the complaint on February 25, 2009. The next day, Mt. Hawley removed the case to federal court without the consent of the other defendants. At that time, neither Mt. Hawley nor any of
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agents of Mt. Hawley Insurance Company (“MtHawley”). Mt. Hawley issued an insurance binder (the actual policy was not delivered until after the fire) to Lebanon Hardboard with a $4 million per occurrence limit, but the binder did not designate Atlantic or Tritalent as mortgagees or loss payees. After the fire, Atlantic demanded payment under the policy from Lebanon Hardboard and Mt. Hawley. Mt. Hawley denied that Atlantic was covered by the insurance policy or that it had any obligation to pay Atlantic. On February 20, 2009, Atlantic filed a complaint for damages and declaratory relief against Mt. Hawley, Crump, Chamberlain, Lebanon Hardboard, and Tritalent in Oregon state court. Atlantic sought, among other things, reformation of the contract and a declaration that Atlantic’s rights to the insurance proceeds were superior to Tritalent’s and Lebanon Hardboard’s. Atlantic gave Lebanon Hardboard and Mt. Hawley courtesy copies of the complaint on February 25, 2009. The next day, Mt. Hawley removed the case to federal court without the consent of the other defendants. At that time, neither Mt. Hawley nor any of the other defendants had been served. Lebanon Hardboard and Tritalent waived service on March 3. On March 19, 21 days after Mt. Hawley removed the case, Lebanon Hardboard and Tritalent filed a motion in district court to remand the case to state court. The next day, Atlantic joined the motion to remand. A magistrate recommended that the district court remand the action because Lebanon Hardboard and Tritalent had not consented to removal and they timely exercised their right under 28 U.S.C. § 1448 to choose a state forum. The magistrate reasoned that removal of a case to federal court is subject to the “unanimity rule” set forth in Chicago Rock Island & Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900), which holds that all defendants must consent to or join in a removal, and here Mt. Hawley had violated that rule by failing to obtain the consent of its co-defendants. The district court adopted the magistrate’s findings and recommendation and remanded the case to state court. This timely appeal
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the other defendants had been served. Lebanon Hardboard and Tritalent waived service on March 3. On March 19, 21 days after Mt. Hawley removed the case, Lebanon Hardboard and Tritalent filed a motion in district court to remand the case to state court. The next day, Atlantic joined the motion to remand. A magistrate recommended that the district court remand the action because Lebanon Hardboard and Tritalent had not consented to removal and they timely exercised their right under 28 U.S.C. § 1448 to choose a state forum. The magistrate reasoned that removal of a case to federal court is subject to the “unanimity rule” set forth in Chicago Rock Island & Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900), which holds that all defendants must consent to or join in a removal, and here Mt. Hawley had violated that rule by failing to obtain the consent of its co-defendants. The district court adopted the magistrate’s findings and recommendation and remanded the case to state court. This timely appeal followed. II The issue in this case is whether we have appellate jurisdiction to consider the appeal of the district court’s remand order. As always, “we have jurisdiction to determine whether we have jurisdiction to hear the case.” Aguon-Schutte v. Guam Election Comm’n, 469 F.3d 1236, 1239 (9th Cir.2006). Because the scope of our authority to review an allegedly erroneous remand order is not entirely clear, we begin with a review of the legal framework. A “The beginning point of statutory interpretation must be the language of the statute.” Am. Bird Conservancy v. F.C.C., 545 F.3d 1190, 1193 (9th Cir.2008) (internal quotation marks omitted). Under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise....” The Supreme Court has interpreted this section more narrowly than its plain language would indicate. See Thermtron Prods. Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), superseded by statute on other grounds, 28 U.S.C. § 1447(c). As explained in Thermtron, § 1447(d) prohibits
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followed. II The issue in this case is whether we have appellate jurisdiction to consider the appeal of the district court’s remand order. As always, “we have jurisdiction to determine whether we have jurisdiction to hear the case.” Aguon-Schutte v. Guam Election Comm’n, 469 F.3d 1236, 1239 (9th Cir.2006). Because the scope of our authority to review an allegedly erroneous remand order is not entirely clear, we begin with a review of the legal framework. A “The beginning point of statutory interpretation must be the language of the statute.” Am. Bird Conservancy v. F.C.C., 545 F.3d 1190, 1193 (9th Cir.2008) (internal quotation marks omitted). Under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise....” The Supreme Court has interpreted this section more narrowly than its plain language would indicate. See Thermtron Prods. Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), superseded by statute on other grounds, 28 U.S.C. § 1447(c). As explained in Thermtron, § 1447(d) prohibits review only of remand orders issued pursuant to a ground enumerated in § 1447(c). Id. At the time Thermtron was decided, § 1447(c) stated, in part: “If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.” Thermtron, 423 U.S. at 342, 96 S.Ct. 584. Thermtron indicated that the case at issue had not been removed “improvidently” because there was “no express statutory provision forbidding the removal” of the action and the case had been “timely removed in strict compliance with 28 U.S.C. § 1446.” Id. at 344 & n. 8, 96 S.Ct. 584. Moreover, the case had not been removed “without jurisdiction” because the case could have been filed initially in the district court pursuant to 28 U.S.C. § 1331. Id. at 344, 96 S.Ct. 584. According to Thermtron, “[i]f a trial judge purports to remand a case on the ground that it was removed ‘improvidently and without jurisdiction,’ his order is not
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review only of remand orders issued pursuant to a ground enumerated in § 1447(c). Id. At the time Thermtron was decided, § 1447(c) stated, in part: “If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.” Thermtron, 423 U.S. at 342, 96 S.Ct. 584. Thermtron indicated that the case at issue had not been removed “improvidently” because there was “no express statutory provision forbidding the removal” of the action and the case had been “timely removed in strict compliance with 28 U.S.C. § 1446.” Id. at 344 & n. 8, 96 S.Ct. 584. Moreover, the case had not been removed “without jurisdiction” because the case could have been filed initially in the district court pursuant to 28 U.S.C. § 1331. Id. at 344, 96 S.Ct. 584. According to Thermtron, “[i]f a trial judge purports to remand a case on the ground that it was removed ‘improvidently and without jurisdiction,’ his order is not subject to challenge in the court of appeals.” Id. at 343, 96 S.Ct. 584. As the Supreme Court later explained, “[wjhere the order is based on one of the enumerated grounds, review is unavailable no matter how plain the legal error in ordering the remand.” Briscoe v. Bell, 432 U.S. 404, 413 n. 13, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977); see also Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977) (per curiam). Nevertheless, an appellate court can review a remand order when a trial judge “exceeded his statutorily defined power” by remanding “a properly removed case on grounds that he had no authority to consider.” Thermtron, 423 U.S. at 351, 96 S.Ct. 584. In the matter before it, Therm-tron noted that the district court had remanded the case based on its concern about its “heavy docket,” which the district court “thought would unjustly delay plaintiffs in going to trial on the merits of their action.” Id. at 344, 96 S.Ct. 584. Because docket congestion was not
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subject to challenge in the court of appeals.” Id. at 343, 96 S.Ct. 584. As the Supreme Court later explained, “[wjhere the order is based on one of the enumerated grounds, review is unavailable no matter how plain the legal error in ordering the remand.” Briscoe v. Bell, 432 U.S. 404, 413 n. 13, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977); see also Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977) (per curiam). Nevertheless, an appellate court can review a remand order when a trial judge “exceeded his statutorily defined power” by remanding “a properly removed case on grounds that he had no authority to consider.” Thermtron, 423 U.S. at 351, 96 S.Ct. 584. In the matter before it, Therm-tron noted that the district court had remanded the case based on its concern about its “heavy docket,” which the district court “thought would unjustly delay plaintiffs in going to trial on the merits of their action.” Id. at 344, 96 S.Ct. 584. Because docket congestion was not a ground enumerated in § 1447(c), Thermtron held that there was appellate jurisdiction to review and reverse the district court’s decision. Id. at 345, 96 S.Ct. 584. B After Thermtron, Congress amended § 1447(c) several times. See Powerex, 551 U.S. at 229-30, 127 S.Ct. 2411. At present, § 1447(c) states, in relevant part: A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. In Powerex, the Court stated that it would “assume for purposes of this case” that the post -Thermtron amendments to § 1447(c) were “immaterial to Thermtron’s gloss on § 1447(d),” so that § 1447(d)’s bar on appellate review is limited to remands based on subject matter jurisdiction and nonjurisdietional defects. Powerex, 551 U.S. at 230, 127 S.Ct. 2411 (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12,
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a ground enumerated in § 1447(c), Thermtron held that there was appellate jurisdiction to review and reverse the district court’s decision. Id. at 345, 96 S.Ct. 584. B After Thermtron, Congress amended § 1447(c) several times. See Powerex, 551 U.S. at 229-30, 127 S.Ct. 2411. At present, § 1447(c) states, in relevant part: A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. In Powerex, the Court stated that it would “assume for purposes of this case” that the post -Thermtron amendments to § 1447(c) were “immaterial to Thermtron’s gloss on § 1447(d),” so that § 1447(d)’s bar on appellate review is limited to remands based on subject matter jurisdiction and nonjurisdietional defects. Powerex, 551 U.S. at 230, 127 S.Ct. 2411 (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996)). This assumption is consistent with the Court’s practice of applying Thermtron’s rule despite the changes in statutory language. See, e.g., Carlsbad Tech. Inc. v. HIF Bio, Inc., — U.S.-, 129 S.Ct. 1862, 1865-66, 173 L.Ed.2d 843 (2009); Kircher v. Putnam Funds Trust, 547 U.S. 633, 640-41, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006); Quackenbush, 517 U.S. at 711-12, 116 S.Ct. 1712; Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); Briscoe, 432 U.S. at 413 n. 8, 97 S.Ct. 2428; Gravitt, 430 U.S. at 724, 97 S.Ct. 1439. Our cases have followed the Court’s lead in assuming that amendments to § 1447(c) are immaterial to Thermtron’s gloss on § 1447(d). See, e.g., Kamm v. ITEX Corp., 568 F.3d 752, 754 (9th Cir.2009) (applying Therm-tron to the present form of § 1447(c) without addressing the changed statutory language); Executive Software N. Am., Inc. v. U.S. Dist. Ct., 24 F.3d 1545, 1549 (9th Cir.1994) (same for 1988 amendments to § 1447(c)). In applying Thermtron’s
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116 S.Ct. 1712, 135 L.Ed.2d 1 (1996)). This assumption is consistent with the Court’s practice of applying Thermtron’s rule despite the changes in statutory language. See, e.g., Carlsbad Tech. Inc. v. HIF Bio, Inc., — U.S.-, 129 S.Ct. 1862, 1865-66, 173 L.Ed.2d 843 (2009); Kircher v. Putnam Funds Trust, 547 U.S. 633, 640-41, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006); Quackenbush, 517 U.S. at 711-12, 116 S.Ct. 1712; Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); Briscoe, 432 U.S. at 413 n. 8, 97 S.Ct. 2428; Gravitt, 430 U.S. at 724, 97 S.Ct. 1439. Our cases have followed the Court’s lead in assuming that amendments to § 1447(c) are immaterial to Thermtron’s gloss on § 1447(d). See, e.g., Kamm v. ITEX Corp., 568 F.3d 752, 754 (9th Cir.2009) (applying Therm-tron to the present form of § 1447(c) without addressing the changed statutory language); Executive Software N. Am., Inc. v. U.S. Dist. Ct., 24 F.3d 1545, 1549 (9th Cir.1994) (same for 1988 amendments to § 1447(c)). In applying Thermtron’s rule that § 1447(d) does not preclude all appellate review of remand orders, we have held that review is appropriate in a number of situations not discussed in Thermtron. For instance, in order to determine whether we lack jurisdiction under § 1447(d) in cases where the basis of a district court’s remand order is unclear, we may “look to the substance of the order to determine whether it was issued pursuant to section 1447(c).” Schmitt v. Ins. Co. of N. Am., 845 F.2d 1546, 1549 (9th Cir.1988), superseded by statute on other grounds, 28 U.S.C. § 1447(c). In this vein, we have analyzed the basis of a district court’s remand order where the district court did not identify the ground for its remand, United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 963-64 (9th Cir.2004), where the order was ambiguous, Schmitt, 845 F.2d at 1549, or where it was not clear that the ground specified by the district court was a ground enumerated in § 1447(c), see Kamm, 568 F.3d at
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rule that § 1447(d) does not preclude all appellate review of remand orders, we have held that review is appropriate in a number of situations not discussed in Thermtron. For instance, in order to determine whether we lack jurisdiction under § 1447(d) in cases where the basis of a district court’s remand order is unclear, we may “look to the substance of the order to determine whether it was issued pursuant to section 1447(c).” Schmitt v. Ins. Co. of N. Am., 845 F.2d 1546, 1549 (9th Cir.1988), superseded by statute on other grounds, 28 U.S.C. § 1447(c). In this vein, we have analyzed the basis of a district court’s remand order where the district court did not identify the ground for its remand, United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 963-64 (9th Cir.2004), where the order was ambiguous, Schmitt, 845 F.2d at 1549, or where it was not clear that the ground specified by the district court was a ground enumerated in § 1447(c), see Kamm, 568 F.3d at 755, 757 (examining whether a district court’s remand of a breach of contract action based on the contract’s forum selection clause fell within § 1447(c)). In those cases, however, we acknowledged that if the district court had based its remand on a ground enumerated in § 1447(c), we would lack jurisdiction to review whether the district court’s application of that ground was correct. See, e.g., United Investors, 360 F.3d at 964. We have also held that we may review remand orders where the district court exceeded the procedural limitations in § 1447(e), even where a district court purported to remand on a ground enumerated in that statute. For example, we have reasoned that the plain language of § 1447(c) precludes a district court from issuing a remand order sua sponte for a nonjurisdictional defect, see Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1193 (9th Cir. 2003), or from remanding for such a defect outside of the prescribed 30-day time period, see N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines
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755, 757 (examining whether a district court’s remand of a breach of contract action based on the contract’s forum selection clause fell within § 1447(c)). In those cases, however, we acknowledged that if the district court had based its remand on a ground enumerated in § 1447(c), we would lack jurisdiction to review whether the district court’s application of that ground was correct. See, e.g., United Investors, 360 F.3d at 964. We have also held that we may review remand orders where the district court exceeded the procedural limitations in § 1447(e), even where a district court purported to remand on a ground enumerated in that statute. For example, we have reasoned that the plain language of § 1447(c) precludes a district court from issuing a remand order sua sponte for a nonjurisdictional defect, see Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1193 (9th Cir. 2003), or from remanding for such a defect outside of the prescribed 30-day time period, see N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir.1995). However, certain statements in our cases have strayed beyond the limited review permitted under Thermtron. Most notably, we have held that “we are not bound by the district court’s characterization of the basis for its remand order.” Reddam v. KPMG LLP, 457 F.3d 1054, 1058 (9th Cir.2006) (citing Abada v. Charles Schwab & Co., Inc., 300 F.3d 1112, 1117 (9th Cir.2002)). Thus, even when the district court purported to remand an action on jurisdictional grounds, we have held that we can look behind the district court’s ruling to determine whether the court correctly characterized the basis for its remand. In Reddam, for example, two defendants had removed a state action on the ground that the underlying dispute was subject to an arbitration agreement between the parties. Id. at 1057. When the arbitrator subsequently determined that it lacked authority to arbitrate, the plaintiffs moved to remand. Id. The district court granted the motion on the ground that it lacked subject matter jurisdiction under § 1447(c) because of the arbitrator’s
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Steel Co., 69 F.3d 1034, 1038 (9th Cir.1995). However, certain statements in our cases have strayed beyond the limited review permitted under Thermtron. Most notably, we have held that “we are not bound by the district court’s characterization of the basis for its remand order.” Reddam v. KPMG LLP, 457 F.3d 1054, 1058 (9th Cir.2006) (citing Abada v. Charles Schwab & Co., Inc., 300 F.3d 1112, 1117 (9th Cir.2002)). Thus, even when the district court purported to remand an action on jurisdictional grounds, we have held that we can look behind the district court’s ruling to determine whether the court correctly characterized the basis for its remand. In Reddam, for example, two defendants had removed a state action on the ground that the underlying dispute was subject to an arbitration agreement between the parties. Id. at 1057. When the arbitrator subsequently determined that it lacked authority to arbitrate, the plaintiffs moved to remand. Id. The district court granted the motion on the ground that it lacked subject matter jurisdiction under § 1447(c) because of the arbitrator’s determination. Id. Rather than holding that Thermtron’s construction of § 1447 prohibited our review, we instead held that we were not bound by the district court’s characterization. Id. at 1058. We justified our review of the district court’s remand order because its reasoning “plainly indieate[d] that the later occurring events [the arbitrator’s post-removal refusal to arbitrate] were the basis for the decision,” and such post-removal events “cannot be a basis for a § 1447(c) remand order.” Id. at 1059. Because we concluded that the district court erred in holding it lacked subject matter jurisdiction, we reversed the district court’s remand order. Id. at 1061; accord Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 938 (9th Cir. 2006). C In 2007, the Supreme Court issued its opinion in Powerex, narrowing the scope of appellate jurisdiction to review allegedly erroneous remand orders where the district court purported to remand under § 1447(c). In Powerex, two foreign defendants (including Powerex Corp.) and two federal defendants removed a state court action, alleging that the district court had subject matter jurisdiction
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determination. Id. Rather than holding that Thermtron’s construction of § 1447 prohibited our review, we instead held that we were not bound by the district court’s characterization. Id. at 1058. We justified our review of the district court’s remand order because its reasoning “plainly indieate[d] that the later occurring events [the arbitrator’s post-removal refusal to arbitrate] were the basis for the decision,” and such post-removal events “cannot be a basis for a § 1447(c) remand order.” Id. at 1059. Because we concluded that the district court erred in holding it lacked subject matter jurisdiction, we reversed the district court’s remand order. Id. at 1061; accord Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 938 (9th Cir. 2006). C In 2007, the Supreme Court issued its opinion in Powerex, narrowing the scope of appellate jurisdiction to review allegedly erroneous remand orders where the district court purported to remand under § 1447(c). In Powerex, two foreign defendants (including Powerex Corp.) and two federal defendants removed a state court action, alleging that the district court had subject matter jurisdiction under 28 U.S.C. § 1441(d) (authorizing removal by a “foreign state” as defined in the Foreign Sovereign Immunities Act) and 28 U.S.C. § 1442(a) (authorizing removal by federal agencies). Powerex, 551 U.S. at 227, 127 S.Ct. 2411. After dismissing the two federal defendants and one of the foreign defendants on immunity grounds, the district court determined that Powerex Corp. was not a “foreign state.” Id. Accordingly, the district court remanded for lack of subject matter jurisdiction. Id. at 228, 232-33, 127 S.Ct. 2411. Powerex Corp. sought review of the district court’s allegedly erroneous holding that it was not a foreign sovereign. Id. at 228, 127 S.Ct. 2411. The Supreme Court held, however, that as a threshold matter there was no appellate jurisdiction to consider this issue. See id. at 234, 239, 127 S.Ct. 2411. First, Powerex rejected the argument that post-removal events can never constitute a defect in subject matter jurisdiction for purposes of § 1447(c). Id. at 230, 127 S.Ct. 2411. The Court explained that “[n]othing in the text of § 1447(c) supports the proposition
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under 28 U.S.C. § 1441(d) (authorizing removal by a “foreign state” as defined in the Foreign Sovereign Immunities Act) and 28 U.S.C. § 1442(a) (authorizing removal by federal agencies). Powerex, 551 U.S. at 227, 127 S.Ct. 2411. After dismissing the two federal defendants and one of the foreign defendants on immunity grounds, the district court determined that Powerex Corp. was not a “foreign state.” Id. Accordingly, the district court remanded for lack of subject matter jurisdiction. Id. at 228, 232-33, 127 S.Ct. 2411. Powerex Corp. sought review of the district court’s allegedly erroneous holding that it was not a foreign sovereign. Id. at 228, 127 S.Ct. 2411. The Supreme Court held, however, that as a threshold matter there was no appellate jurisdiction to consider this issue. See id. at 234, 239, 127 S.Ct. 2411. First, Powerex rejected the argument that post-removal events can never constitute a defect in subject matter jurisdiction for purposes of § 1447(c). Id. at 230, 127 S.Ct. 2411. The Court explained that “[n]othing in the text of § 1447(c) supports the proposition that a remand for lack of subject-matter jurisdiction is not covered so long as the case was properly removed in the first instance.” Id. Rejecting the proposed “narrowing construction of § 1447(c)’s unqualified authorization of remands for lack of ‘subject matter jurisdiction,’ ” Powerex held that “when a district court remands a properly removed case because it nonetheless lacks subject-matter jurisdiction, the remand is covered by § 1447(c) and thus shielded from review by § 1447(d).” Id. at 230-31, 127 S.Ct. 2411. Second, Powerex enunciated the general principle “that review of the District Court’s characterization of its remand as resting upon lack of subject-matter jurisdiction, to the extent it is permissible at all, should be limited to confirming that that characterization was colorable.” Id. at 234, 127 S.Ct. 2411. The reason for so narrowly limiting any “look behind the district court’s characterization,” the Court explained, was to avoid “[Ijengthy appellate disputes about whether an arguable jurisdictional ground invoked by the district court was properly such....” Id. at 233-34, 127 S.Ct. 2411. Such lengthy disputes would frustrate
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that a remand for lack of subject-matter jurisdiction is not covered so long as the case was properly removed in the first instance.” Id. Rejecting the proposed “narrowing construction of § 1447(c)’s unqualified authorization of remands for lack of ‘subject matter jurisdiction,’ ” Powerex held that “when a district court remands a properly removed case because it nonetheless lacks subject-matter jurisdiction, the remand is covered by § 1447(c) and thus shielded from review by § 1447(d).” Id. at 230-31, 127 S.Ct. 2411. Second, Powerex enunciated the general principle “that review of the District Court’s characterization of its remand as resting upon lack of subject-matter jurisdiction, to the extent it is permissible at all, should be limited to confirming that that characterization was colorable.” Id. at 234, 127 S.Ct. 2411. The reason for so narrowly limiting any “look behind the district court’s characterization,” the Court explained, was to avoid “[Ijengthy appellate disputes about whether an arguable jurisdictional ground invoked by the district court was properly such....” Id. at 233-34, 127 S.Ct. 2411. Such lengthy disputes would frustrate the purpose of § 1447(d), which “reflects Congress’s longstanding policy of not permitting interruption of the litigation of the merits of a removed case by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed.” Id. at 238, 127 S.Ct. 2411 (internal quotation marks omitted). In addition, Powerex noted that “the line between misclassifying a ground as subject-matter jurisdiction and misapplying a proper ground of subject-matter jurisdiction is sometimes elusively thin.” Id. at 234, 127 S.Ct. 2411. Applying this reasoning to the facts before it, the Court stated that “[a]s an initial matter, it is quite clear that the District Court was purporting to remand” on the ground of subject matter jurisdiction, and indeed, that was the only “plausible explanation of what legal ground the District Court actually relied upon for its remand. ...” Id. at 233, 127 S.Ct. 2411 (emphases omitted). Although the Court had not passed on the legal question before the district court, “whether, when sovereign immunity bars the claims against the only parties capable of removing
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the purpose of § 1447(d), which “reflects Congress’s longstanding policy of not permitting interruption of the litigation of the merits of a removed case by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed.” Id. at 238, 127 S.Ct. 2411 (internal quotation marks omitted). In addition, Powerex noted that “the line between misclassifying a ground as subject-matter jurisdiction and misapplying a proper ground of subject-matter jurisdiction is sometimes elusively thin.” Id. at 234, 127 S.Ct. 2411. Applying this reasoning to the facts before it, the Court stated that “[a]s an initial matter, it is quite clear that the District Court was purporting to remand” on the ground of subject matter jurisdiction, and indeed, that was the only “plausible explanation of what legal ground the District Court actually relied upon for its remand. ...” Id. at 233, 127 S.Ct. 2411 (emphases omitted). Although the Court had not passed on the legal question before the district court, “whether, when sovereign immunity bars the claims against the only parties capable of removing the case, subject-matter jurisdiction exists to entertain the remaining claims,” the Court noted that “the point is certainly debatable.” Id. at 233-34, 127 S.Ct. 2411. Powerex concluded that “when, as here, the District Court relied upon a ground that is color-ably characterized as subject-matter jurisdiction, appellate review is barred by § 1447(d).” Id. at 234, 127 S.Ct. 2411. As such, there was no need to “pass on whether § 1447(d) permits appellate review of a district-court remand order that dresses in jurisdictional clothing a patently nonjurisdictional ground (such as the docket congestion invoked by the District Court in Thermtron).” Id. (citation omitted). Although Powerex involved a remand based on subject matter jurisdiction under § 1447(c), the Court’s reasons for holding that “review of the District Court’s characterization of its remand ... should be limited to confirming that that characterization was colorable,” id., are equally applicable to remands relying on a non-jurisdictional defect. Neither the plain language of § 1447(d) nor Thermtron’s gloss on that section distinguishes between orders based on jurisdictional and non-jurisdictional grounds. See Thermtron,
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the case, subject-matter jurisdiction exists to entertain the remaining claims,” the Court noted that “the point is certainly debatable.” Id. at 233-34, 127 S.Ct. 2411. Powerex concluded that “when, as here, the District Court relied upon a ground that is color-ably characterized as subject-matter jurisdiction, appellate review is barred by § 1447(d).” Id. at 234, 127 S.Ct. 2411. As such, there was no need to “pass on whether § 1447(d) permits appellate review of a district-court remand order that dresses in jurisdictional clothing a patently nonjurisdictional ground (such as the docket congestion invoked by the District Court in Thermtron).” Id. (citation omitted). Although Powerex involved a remand based on subject matter jurisdiction under § 1447(c), the Court’s reasons for holding that “review of the District Court’s characterization of its remand ... should be limited to confirming that that characterization was colorable,” id., are equally applicable to remands relying on a non-jurisdictional defect. Neither the plain language of § 1447(d) nor Thermtron’s gloss on that section distinguishes between orders based on jurisdictional and non-jurisdictional grounds. See Thermtron, 423 U.S. at 343, 96 S.Ct. 584; see also Briscoe, 432 U.S. at 413 n. 13, 97 S.Ct. 2428. Moreover, appellate review of a district court’s characterization of a remand based on a non-jurisdictional defect would frustrate Congress’s intent to avoid “interruption of the litigation of the merits of a removed case by prolonged litigation” of procedural questions. Powerex, 551 U.S. at 238, 127 S.Ct. 2411; see also Osborn v. Haley, 549 U.S. 225, 243, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (holding that § 1447(d) is an “antishuttling” provision aimed at preventing “prolonged litigation of questions of jurisdiction of the district court to which the cause is removed” (internal quotation marks omitted)). And as with jurisdictional defects considered in Powerex, it is equally difficult to distinguish the line between “misclassifying a ground” as a defect, and correctly classifying an issue as a defect but then misapplying the law to the facts of the case. See Powerex, 551 U.S. at 234, 127 S.Ct. 2411. Accordingly, in light of Powerex, when a district court remands a
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423 U.S. at 343, 96 S.Ct. 584; see also Briscoe, 432 U.S. at 413 n. 13, 97 S.Ct. 2428. Moreover, appellate review of a district court’s characterization of a remand based on a non-jurisdictional defect would frustrate Congress’s intent to avoid “interruption of the litigation of the merits of a removed case by prolonged litigation” of procedural questions. Powerex, 551 U.S. at 238, 127 S.Ct. 2411; see also Osborn v. Haley, 549 U.S. 225, 243, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (holding that § 1447(d) is an “antishuttling” provision aimed at preventing “prolonged litigation of questions of jurisdiction of the district court to which the cause is removed” (internal quotation marks omitted)). And as with jurisdictional defects considered in Powerex, it is equally difficult to distinguish the line between “misclassifying a ground” as a defect, and correctly classifying an issue as a defect but then misapplying the law to the facts of the case. See Powerex, 551 U.S. at 234, 127 S.Ct. 2411. Accordingly, in light of Powerex, when a district court remands a case purporting to rely on a ground enumerated in § 1447(c), we have appellate jurisdiction to look behind the district court’s characterization of its basis for remand only to determine whether the ground was “colorable.” Ill In light of these precedents, we must determine whether we have jurisdiction to review the district court’s allegedly erroneous remand order. We first consider whether the district court remanded purporting to rely on a ground enumerated in § 1447(c). Thermtron, 423 U.S. at 343, 96 S.Ct. 584. We conduct this part of our review de novo. Kamm, 568 F.3d at 754. In this case, the district court identified the defendant unanimity rule as the basis for its remand. Because we have held that a violation of the unanimity rule is a defect under § 1447(c), Aguon-Schulte, 469 F.3d at 1240, we conclude that the district court purported to rely on a legal ground enumerated in § 1447(c) even though the district court did not cite that statute. We must next consider whether the district court’s characterization of the defect in this case
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case purporting to rely on a ground enumerated in § 1447(c), we have appellate jurisdiction to look behind the district court’s characterization of its basis for remand only to determine whether the ground was “colorable.” Ill In light of these precedents, we must determine whether we have jurisdiction to review the district court’s allegedly erroneous remand order. We first consider whether the district court remanded purporting to rely on a ground enumerated in § 1447(c). Thermtron, 423 U.S. at 343, 96 S.Ct. 584. We conduct this part of our review de novo. Kamm, 568 F.3d at 754. In this case, the district court identified the defendant unanimity rule as the basis for its remand. Because we have held that a violation of the unanimity rule is a defect under § 1447(c), Aguon-Schulte, 469 F.3d at 1240, we conclude that the district court purported to rely on a legal ground enumerated in § 1447(c) even though the district court did not cite that statute. We must next consider whether the district court’s characterization of the defect in this case was “colorable.” Powerex, 551 U.S. at 234, 127 S.Ct. 2411. The district court reasoned that under § 1448, a later-served defendant who opts to exercise its right to choose the state court forum within the 30-day period provided in § 1447(c) may force a remand to state court. Because Lebanon Hardboard and Tritalent made a timely motion to remand, the district court concluded that a remand to state court was appropriate. The district court’s reasoning establishes that it based the remand order on defendant non-unanimity; indeed, that is the only “plausible explanation of what legal ground the District Court actually relied upon for its remand in the present case.” Powerex, 551 U.S. at 233, 127 S.Ct. 2411. As in Powerex, although we have not passed on the question whether the defendant non-unanimity rule applies in the precise circumstances of this case, “the point is certainly debatable.” Id. at 233-34, 127 S.Ct. 2411. Nor is there any concern here that the district court has “dressed up” a ground patently not within § 1447(c). See Powerex, 551
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was “colorable.” Powerex, 551 U.S. at 234, 127 S.Ct. 2411. The district court reasoned that under § 1448, a later-served defendant who opts to exercise its right to choose the state court forum within the 30-day period provided in § 1447(c) may force a remand to state court. Because Lebanon Hardboard and Tritalent made a timely motion to remand, the district court concluded that a remand to state court was appropriate. The district court’s reasoning establishes that it based the remand order on defendant non-unanimity; indeed, that is the only “plausible explanation of what legal ground the District Court actually relied upon for its remand in the present case.” Powerex, 551 U.S. at 233, 127 S.Ct. 2411. As in Powerex, although we have not passed on the question whether the defendant non-unanimity rule applies in the precise circumstances of this case, “the point is certainly debatable.” Id. at 233-34, 127 S.Ct. 2411. Nor is there any concern here that the district court has “dressed up” a ground patently not within § 1447(c). See Powerex, 551 U.S. at 234, 127 S.Ct. 2411. Indeed, Mt. Hawley does not argue that the district court’s remand order was based on a ground patently not enumerated in § 1447(c), such as docket congestion or abstention. Given that the district court purported to remand the case on the basis of a defect under § 1447(c), and that characterization of the remand is colorable, we lack appellate jurisdiction to review this remand order. See Powerex, 551 U.S. at 234, 127 S.Ct. 2411. Mt. Hawley argues that this conclusion is wrong because there was no defendant unanimity defect that justified a remand under § 1447(c), and that we are not bound by the district court’s characterization of the basis of remand. In arguing that there was no defendant unanimity defect here, Mt. Hawley primarily relies on Spencer v. United States District Court, 393 F.3d 867 (9th Cir.2004). In Spencer, following removal to district court, the plaintiffs sought to amend their complaint to name an additional defendant who was a citizen of the forum where the complaint had been filed.
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U.S. at 234, 127 S.Ct. 2411. Indeed, Mt. Hawley does not argue that the district court’s remand order was based on a ground patently not enumerated in § 1447(c), such as docket congestion or abstention. Given that the district court purported to remand the case on the basis of a defect under § 1447(c), and that characterization of the remand is colorable, we lack appellate jurisdiction to review this remand order. See Powerex, 551 U.S. at 234, 127 S.Ct. 2411. Mt. Hawley argues that this conclusion is wrong because there was no defendant unanimity defect that justified a remand under § 1447(c), and that we are not bound by the district court’s characterization of the basis of remand. In arguing that there was no defendant unanimity defect here, Mt. Hawley primarily relies on Spencer v. United States District Court, 393 F.3d 867 (9th Cir.2004). In Spencer, following removal to district court, the plaintiffs sought to amend their complaint to name an additional defendant who was a citizen of the forum where the complaint had been filed. Id. at 868. Citing the forum defendant rule, which prohibits removal of a case when at least one defendant is a citizen of the state in which the action is filed, see 28 U.S.C. § 1441(b), the plaintiffs then moved to remand the action to state court. Spencer, 393 F.3d at 868. We affirmed the district court’s refusal to remand the case, holding that “[challenges to removal jurisdiction require an inquiry into the circumstances at the time the notice of removal is filed.” Id. at 871. If removal is proper at the time the notice is filed, “subsequent events, at least those that do not destroy original subject-matter jurisdiction, do not require remand.” Id. Mt. Hawley argues that the defendant unanimity rule in this case is equivalent to the forum defendant rule in Spencer because both are non-jurisdictional defects that apply only to defendants “properly joined and serviced in the action.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n. 1 (9th Cir.1988). As such, Mt. Hawley contends, the principles enunciated in Spencer and
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Id. at 868. Citing the forum defendant rule, which prohibits removal of a case when at least one defendant is a citizen of the state in which the action is filed, see 28 U.S.C. § 1441(b), the plaintiffs then moved to remand the action to state court. Spencer, 393 F.3d at 868. We affirmed the district court’s refusal to remand the case, holding that “[challenges to removal jurisdiction require an inquiry into the circumstances at the time the notice of removal is filed.” Id. at 871. If removal is proper at the time the notice is filed, “subsequent events, at least those that do not destroy original subject-matter jurisdiction, do not require remand.” Id. Mt. Hawley argues that the defendant unanimity rule in this case is equivalent to the forum defendant rule in Spencer because both are non-jurisdictional defects that apply only to defendants “properly joined and serviced in the action.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n. 1 (9th Cir.1988). As such, Mt. Hawley contends, the principles enunciated in Spencer and Reddam apply: the validity of removal is determined by the facts as they existed at the time of the removal, and subsequent events do not require remand. See Reddam, 457 F.3d at 1059; Spencer, 393 F.3d at 871. In light of this principle, Mt. Hawley claims there was no unanimity defect at the time this case was removed because neither Lebanon Hardboard nor Tritalent had been properly joined and served. See Emrich, 846 F.2d at 1193 n. 1. According to Mt. Hawley, § 1448 does not help the defendants because it gives them only the right to bring a motion for remand for a defect that existed at the time of the removal, a situation not present here. Because in Mt. Hawley’s view there was no defect at the time of removal, Mt. Hawley concludes that the district court’s remand order “plainly indicates that the later occurring events were the basis for the decision.” Reddam, 457 F.3d at 1059. Because “[t]hat cannot be a basis for a § 1447(c) remand order,” id., the district court erred
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Reddam apply: the validity of removal is determined by the facts as they existed at the time of the removal, and subsequent events do not require remand. See Reddam, 457 F.3d at 1059; Spencer, 393 F.3d at 871. In light of this principle, Mt. Hawley claims there was no unanimity defect at the time this case was removed because neither Lebanon Hardboard nor Tritalent had been properly joined and served. See Emrich, 846 F.2d at 1193 n. 1. According to Mt. Hawley, § 1448 does not help the defendants because it gives them only the right to bring a motion for remand for a defect that existed at the time of the removal, a situation not present here. Because in Mt. Hawley’s view there was no defect at the time of removal, Mt. Hawley concludes that the district court’s remand order “plainly indicates that the later occurring events were the basis for the decision.” Reddam, 457 F.3d at 1059. Because “[t]hat cannot be a basis for a § 1447(c) remand order,” id., the district court erred in remanding based on § 1447(c), and as in Reddam, Mt. Hawley contends, we can review and reverse this erroneous holding. We disagree with this reasoning. Mt. Hawley’s analysis is based on three propositions: (1) defendant non-unanimity is a defect under § 1447(c) only at the time of removal; (2) § 1448 does not authorize a defendant who was served after removal to move to remand the case within 30 days after removal for lack of unanimity; and (3) we can review a district court’s remand order when it is plainly wrong. Under Powerex, we must ask whether these propositions are so clear that the district court’s characterization of its remand as being based on a non-jurisdictional defect was not even colorable. See 551 U.S. at 234, 127 S.Ct. 2411. However, rather than enunciating clearly established law, Mt. Hawley’s first two propositions raise unsettled questions that cannot be the basis for holding that the district court’s remand order failed the minimum standard of being “colorable.” Spencer did not resolve the issue raised in Mt. Hawley’s first proposition,
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in remanding based on § 1447(c), and as in Reddam, Mt. Hawley contends, we can review and reverse this erroneous holding. We disagree with this reasoning. Mt. Hawley’s analysis is based on three propositions: (1) defendant non-unanimity is a defect under § 1447(c) only at the time of removal; (2) § 1448 does not authorize a defendant who was served after removal to move to remand the case within 30 days after removal for lack of unanimity; and (3) we can review a district court’s remand order when it is plainly wrong. Under Powerex, we must ask whether these propositions are so clear that the district court’s characterization of its remand as being based on a non-jurisdictional defect was not even colorable. See 551 U.S. at 234, 127 S.Ct. 2411. However, rather than enunciating clearly established law, Mt. Hawley’s first two propositions raise unsettled questions that cannot be the basis for holding that the district court’s remand order failed the minimum standard of being “colorable.” Spencer did not resolve the issue raised in Mt. Hawley’s first proposition, whether a defendant unanimity issue that arises after removal can be a defect for purposes of § 1447(c). Neither the unanimity rule nor the authority of a district court to remand based on post-removal events was before us in Spencer, because in that case we upheld a district court’s denial of a remand motion based on the forum defendant rule. 393 F.3d at 869. Mt. Hawley has not cited, and we have not found, any case directly on point. Moreover, as explained above, Powerex overruled the doctrine that § 1447(c) and (d) do not apply when a remand is based on events occurring after removal. Powerex, 551 U.S. at 230, 127 S.Ct. 2411; see Blackburn v. Oaktree Capital Mgmt, LLC, 511 F.3d 633, 636 (6th Cir.2008) (“Accordingly, we recognize that our Sixth Circuit decisions are overruled to the extent they held that a remand for lack of subject matter jurisdiction pursuant to § 1447(c) was reviewable if it was premised on a postremoval [event].”); Price v. J & H Marsh & McLennan, Inc., 493 F.3d
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whether a defendant unanimity issue that arises after removal can be a defect for purposes of § 1447(c). Neither the unanimity rule nor the authority of a district court to remand based on post-removal events was before us in Spencer, because in that case we upheld a district court’s denial of a remand motion based on the forum defendant rule. 393 F.3d at 869. Mt. Hawley has not cited, and we have not found, any case directly on point. Moreover, as explained above, Powerex overruled the doctrine that § 1447(c) and (d) do not apply when a remand is based on events occurring after removal. Powerex, 551 U.S. at 230, 127 S.Ct. 2411; see Blackburn v. Oaktree Capital Mgmt, LLC, 511 F.3d 633, 636 (6th Cir.2008) (“Accordingly, we recognize that our Sixth Circuit decisions are overruled to the extent they held that a remand for lack of subject matter jurisdiction pursuant to § 1447(c) was reviewable if it was premised on a postremoval [event].”); Price v. J & H Marsh & McLennan, Inc., 493 F.3d 55, 60-61 (2d Cir.2007) (holding that Powerex overruled Reddam and other cases recognizing the postremoval-event doctrine). Although Powerex’s rejection of the post-removal-event doctrine arose in the context of a remand order based on lack of subject matter jurisdiction, the question whether that portion of Powerex’s ruling also extends to remand orders based on non-jurisdictional defects “is certainly debatable.” 551 U.S. at 233-34, 127 S.Ct. 2411. Accordingly, Powerex mandates that § 1447(d) deprives us of appellate jurisdiction to review the remand order. Nor did Spencer address Mt. Hawley’s second proposition, whether § 1448 authorizes a defendant who was served after removal to remand the case within 30 days for lack of unanimity when that defect did not exist at the time of the removal. We have not addressed this issue, and neither has the Supreme Court. Mt. Hawley’s third proposition, that under Reddam we can review a remand order when the district court’s reasoning indicates it made an error of law, is plainly contrary to Powerex. As explained above, if the district court purports to remand on a
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55, 60-61 (2d Cir.2007) (holding that Powerex overruled Reddam and other cases recognizing the postremoval-event doctrine). Although Powerex’s rejection of the post-removal-event doctrine arose in the context of a remand order based on lack of subject matter jurisdiction, the question whether that portion of Powerex’s ruling also extends to remand orders based on non-jurisdictional defects “is certainly debatable.” 551 U.S. at 233-34, 127 S.Ct. 2411. Accordingly, Powerex mandates that § 1447(d) deprives us of appellate jurisdiction to review the remand order. Nor did Spencer address Mt. Hawley’s second proposition, whether § 1448 authorizes a defendant who was served after removal to remand the case within 30 days for lack of unanimity when that defect did not exist at the time of the removal. We have not addressed this issue, and neither has the Supreme Court. Mt. Hawley’s third proposition, that under Reddam we can review a remand order when the district court’s reasoning indicates it made an error of law, is plainly contrary to Powerex. As explained above, if the district court purports to remand on a ground enumerated in § 1447(c), we can look behind the district court’s stated basis for its remand only if its characterization is not “colorable.” Powerex, 551 U.S. at 234, 127 S.Ct. 2411. Where a remand order “is based on one of the grounds enumerated in 28 U.S.C. § 1447(c),” and that ground is colorable, then “review is unavailable no matter how plain the legal error in ordering the remand.” Kircher, 547 U.S. at 642, 126 S.Ct. 2145 (brackets and internal quotation marks omitted). To the extent Reddam and other cases hold otherwise, they are irreconcilable with the holding and reasoning of Powerex and are thus superseded. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). Here the district court based its remand order on a lack of defendant unanimity, which we have held to be a defect for purposes of § 1447(c). See AguonSchulte, 469 F.3d at 1240. Mt. Hawley’s arguments, based on open legal questions and a superseded rule of law, have not established that the district court’s remand on this ground
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ground enumerated in § 1447(c), we can look behind the district court’s stated basis for its remand only if its characterization is not “colorable.” Powerex, 551 U.S. at 234, 127 S.Ct. 2411. Where a remand order “is based on one of the grounds enumerated in 28 U.S.C. § 1447(c),” and that ground is colorable, then “review is unavailable no matter how plain the legal error in ordering the remand.” Kircher, 547 U.S. at 642, 126 S.Ct. 2145 (brackets and internal quotation marks omitted). To the extent Reddam and other cases hold otherwise, they are irreconcilable with the holding and reasoning of Powerex and are thus superseded. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). Here the district court based its remand order on a lack of defendant unanimity, which we have held to be a defect for purposes of § 1447(c). See AguonSchulte, 469 F.3d at 1240. Mt. Hawley’s arguments, based on open legal questions and a superseded rule of law, have not established that the district court’s remand on this ground failed to meet Powerex’s “colorability” standard. See 551 U.S. at 234, 127 S.Ct. 2411. Accordingly, we lack jurisdiction to review Mt. Hawley’s appeal. See 28 U.S.C. § 1447(d). DISMISSED. . 28 U.S.C. § 1448 provides that after a case has been removed to federal court, the plaintiff may complete or perfect service on a defendant who had not been properly served before removal, but states that ''[t]his section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case.” . Because the district court adopted the magistrate's findings and recommendation in full, we use 'the term "district court” to refer to both the district court’s and the magistrate's conclusions. . Section 1447(d) provides an exception to this prohibition on appellate review, for “an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title....” The cited section, 28 U.S.C. § 1443, refers to certain civil rights cases, and therefore does not apply in this case. . Because we decide on this
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failed to meet Powerex’s “colorability” standard. See 551 U.S. at 234, 127 S.Ct. 2411. Accordingly, we lack jurisdiction to review Mt. Hawley’s appeal. See 28 U.S.C. § 1447(d). DISMISSED. . 28 U.S.C. § 1448 provides that after a case has been removed to federal court, the plaintiff may complete or perfect service on a defendant who had not been properly served before removal, but states that ''[t]his section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case.” . Because the district court adopted the magistrate's findings and recommendation in full, we use 'the term "district court” to refer to both the district court’s and the magistrate's conclusions. . Section 1447(d) provides an exception to this prohibition on appellate review, for “an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title....” The cited section, 28 U.S.C. § 1443, refers to certain civil rights cases, and therefore does not apply in this case. . Because we decide on this ground, we do not reach appellees' argument that we lack subject matter jurisdiction because the parties are not completely diverse. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (holding that there is “no mandatory ‘sequencing of jurisdictional issues,' ” and we have “leeway 'to choose among threshold grounds for denying audience to a case on the merits.’ ” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999))).
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Circuit Judges SILBERMAN, STEPHEN F. WILLIAMS, and SENTELLE would grant the petition for rehearing en banc. A statement of Circuit Judge SILBERMAN dissenting from the denial of rehearing en banc, in which Circuit Judges STEPHEN F. WILLIAMS and SENTELLE join, is attached. ORDER PER CURIAM. Petitioner’s Petition for Rehearing En Banc and the response thereto have been circulated to the full court. The taking of a vote was requested. Thereafter, a’majority of the judges of the court in regular active service did not vote' in favor of the pétition. Upon consideration of the foregoing, it is ORDERED that the petition be denied. SILBERMAN, Circuit Judge, with. whom STEPHEN F. .WILLIAMS and SENTELLE, Circuit Judges, join, dissenting from the denial of rehearing en banc: I believe that this case merits en banc consideration, since it concerns the proper application of the important and oft-used provision under which the bank regulatory agencies bring enforcement actions against individuals in the banking industry. For the reasons set forth in my dissent, see Proffitt v. FDIC, 200 F.3d 855, 865 (D.C.Cir.2000) (Silberman, J., dissenting), I think that the panel majority’s construction is incorrect and gives those agencies virtually unlimited discretion as to when they initiate proceedings. The majority opinion therefore has the curious result of formally extending our holding in Johnson v. SEC, 87 F.3d 484 (D.C.Cir.1996) to bank regulatory agency enforcement actions, but doing so in a manner that nullifies Johnson’s effect. On reflection, I think that my dissent should have responded more fully to the majority’s claim that my reading of section 8(e) would fail to give effect to all of the provision’s language. Section 8(e) states that a regulatory agency may bring an enforcement action against a banker if, Among other things, the depository institution “has suffered or will probably suffer financial loss or other damage.” 12 U.S.C. § 1818(e)(l)(B)(i). Reasoning that an institution always “will probably suffer” financial loss before it suffers actual financial loss, the majority asserts that the provision’s language permitting an enforcement action where there is probable or actual loss indicates Congress’ intent to create separate “has suffered” and “will probably suffer” causes of action, each
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the panel majority’s construction is incorrect and gives those agencies virtually unlimited discretion as to when they initiate proceedings. The majority opinion therefore has the curious result of formally extending our holding in Johnson v. SEC, 87 F.3d 484 (D.C.Cir.1996) to bank regulatory agency enforcement actions, but doing so in a manner that nullifies Johnson’s effect. On reflection, I think that my dissent should have responded more fully to the majority’s claim that my reading of section 8(e) would fail to give effect to all of the provision’s language. Section 8(e) states that a regulatory agency may bring an enforcement action against a banker if, Among other things, the depository institution “has suffered or will probably suffer financial loss or other damage.” 12 U.S.C. § 1818(e)(l)(B)(i). Reasoning that an institution always “will probably suffer” financial loss before it suffers actual financial loss, the majority asserts that the provision’s language permitting an enforcement action where there is probable or actual loss indicates Congress’ intent to create separate “has suffered” and “will probably suffer” causes of action, each with its own limitations period. See Prof-fitt, 200 F.3d at 863-64. Otherwise, it is argued, the “has suffered” language is superfluous. I think this analysis — based on the notion that actual loss .is included within the concept of probable loss — is wholly artificial. One does not normally use the phrase “will probably suffer” a loss with the intention of incorporating the concept of an actual loss. No one talks or writes like that — certainly not a legislative draftsman. Take for example those provisions in the Sentencing Guidelines that impose an increased sentence in the event that the offense causes “death or serious bodily injury.” See, e.g., U.S.S.G. § 2Dl.l(a)(l). Of course, a person who has been killed has also suffered serious bodily injury, and thus the word “death” is in a metaphysical sense a “superfluous” term. But we would not be inclined to afford special temporal meaning to this modest overlap — to the contrary, it would seem odd if the word “death” were not separately mentioned. Even if one thought that the term
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with its own limitations period. See Prof-fitt, 200 F.3d at 863-64. Otherwise, it is argued, the “has suffered” language is superfluous. I think this analysis — based on the notion that actual loss .is included within the concept of probable loss — is wholly artificial. One does not normally use the phrase “will probably suffer” a loss with the intention of incorporating the concept of an actual loss. No one talks or writes like that — certainly not a legislative draftsman. Take for example those provisions in the Sentencing Guidelines that impose an increased sentence in the event that the offense causes “death or serious bodily injury.” See, e.g., U.S.S.G. § 2Dl.l(a)(l). Of course, a person who has been killed has also suffered serious bodily injury, and thus the word “death” is in a metaphysical sense a “superfluous” term. But we would not be inclined to afford special temporal meaning to this modest overlap — to the contrary, it would seem odd if the word “death” were not separately mentioned. Even if one thought that the term “will probably suffer” a loss necessarily includes an actual loss and is therefore redundant, a bit of redundancy is common not only in everyday speech but in legislation where the draftsman has an understandable desire to, as Macbeth put it, “make assurance double sure.” See, e.g., Shook v. D.C. Fin. Responsibility and Management Assistance Auth., 132 F.3d 775, 782 (D.C.Cir.1998); United States v. Microsoft, 147 F.3d 935, 959 (D.C.Cir.1998) (Wald, J., concurring in part and dissenting in part). This textual canon is a most slender thread upon which to hang so dubious a construction of section 8(e). . Nor were Proffitt’s briefs terribly helpful in responding to this argument.
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THAYER, Circuit Judge. This action was brought by Carl Ka-sisehke, the defendant in error, against the Great Northern Railway Company, the plaintiff in error, to recover damages for certain personal injuries which he sustained at Brecbenridge, Minn., while he was in the employ of the defendant company, and was engaged in coaling one of its engines. It appears that, when an engine desired to take coal at the place' where the accident occurred, it was run alongside of a building or shed containing coal, and that the coal was dumped into the tender by means of movable chutes or boxes in the side’ of the building, which were so arranged that they would slide out of their own weight, and discharge, respectively, about flve tons of coal into the tender. These boxes were so arranged that they could be made to slide out of their sockets by pulling a rope, and when they had slid out a certain distance the coal which they contained could be dumped into the pit of the tender by drawing a bolt or pin, and permitting an apron or door at the front end of the box to open or fall. The plaintiff below alleged, in substance, that on the night of December 7, 1898, he was directed by his foreman to assist in coaling one of the defendant company’s engines at its coaling station; that he was ordered by the foreman to stand on the locomotive tender and pull on one of the coal chutes, so as to make it slide out of its socket; that he obeyed this order, and that while in the act of pulling on the chute it suddenly slid out of its socket, thereby throwing him to the bottom of the tender, and precipitating upon him about five tons of coal. He further alleged, in substance, that the injuries which he sustained by reason of the accident were due in part to the negligence of the defendant company in failing to provide safe machinery for dumping coal, and to the faulty and defective construction of such machinery. There was a
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bolt or pin, and permitting an apron or door at the front end of the box to open or fall. The plaintiff below alleged, in substance, that on the night of December 7, 1898, he was directed by his foreman to assist in coaling one of the defendant company’s engines at its coaling station; that he was ordered by the foreman to stand on the locomotive tender and pull on one of the coal chutes, so as to make it slide out of its socket; that he obeyed this order, and that while in the act of pulling on the chute it suddenly slid out of its socket, thereby throwing him to the bottom of the tender, and precipitating upon him about five tons of coal. He further alleged, in substance, that the injuries which he sustained by reason of the accident were due in part to the negligence of the defendant company in failing to provide safe machinery for dumping coal, and to the faulty and defective construction of such machinery. There was a verdict and judgment in favor of the plaintiff below for a moderate sum, to wit, $1,250, considering the nature and extent of the injuries which he is shown to have sustained. We are asked by the defendant company to reverse this judgment for various reasons. It is claimed in the first place that no evidence was introduced which tended to show that the coal chute in question was defective in any respect, and that the verdict is without any substantial evi dence to support it, but a careful perusal of the record has served to convince us that this proposition is untenable. The testimony-shows that the coal chutes or boxes, 12 in number, were made of sheet iron, and, if in a perfect state of repair, that they would slide out of their sockets of their own weight, by pulling a rope, or tripping them, and that they were designed to be operated in that manner, rather than by pushing or pulling them; also, that the doors or aprons of the boxes would remain closed and
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verdict and judgment in favor of the plaintiff below for a moderate sum, to wit, $1,250, considering the nature and extent of the injuries which he is shown to have sustained. We are asked by the defendant company to reverse this judgment for various reasons. It is claimed in the first place that no evidence was introduced which tended to show that the coal chute in question was defective in any respect, and that the verdict is without any substantial evi dence to support it, but a careful perusal of the record has served to convince us that this proposition is untenable. The testimony-shows that the coal chutes or boxes, 12 in number, were made of sheet iron, and, if in a perfect state of repair, that they would slide out of their sockets of their own weight, by pulling a rope, or tripping them, and that they were designed to be operated in that manner, rather than by pushing or pulling them; also, that the doors or aprons of the boxes would remain closed and retain the coal until a bolt or pin was drawn, so as to release a latch which held the aprons. For some reason, however, one of the chutes (that which occasioned the injury) did not operate oh the occasion of the accident as it was designed to operate. It did not slide out of its own weight when it was tripped,- and, because it failed to operate as it should have done, the plaintiff, was directed to stand on the tender and pull outwardly on the box with as much force as he could exert. Moreover, when the box slid from its socket it did not retain the coal, as it should have done, until the bolt was drawn and the latch released, but immediately discharged its contents into the pit of the tender, thereby covering the plaintiff’s body with five tons of coal. We think that the fact that the chute, although handled properly, did not operate as it should have operated, warranted an inference by the jury that it was for some reason
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retain the coal until a bolt or pin was drawn, so as to release a latch which held the aprons. For some reason, however, one of the chutes (that which occasioned the injury) did not operate oh the occasion of the accident as it was designed to operate. It did not slide out of its own weight when it was tripped,- and, because it failed to operate as it should have done, the plaintiff, was directed to stand on the tender and pull outwardly on the box with as much force as he could exert. Moreover, when the box slid from its socket it did not retain the coal, as it should have done, until the bolt was drawn and the latch released, but immediately discharged its contents into the pit of the tender, thereby covering the plaintiff’s body with five tons of coal. We think that the fact that the chute, although handled properly, did not operate as it should have operated, warranted an inference by the jury that it was for some reason out of order and in need of repair. Besides, there was direct evidence on the part of one of the plaintiff’s witnesses (a witness by the name of McColm), who had abundant opportunity to examine the chutes, that about 10 days after the accident none of them but one were in such a condition, owing to some defect in the pins or latches which controlled the aprons, that they would retain- the coal and prevent it from dumping prematurely, while there was no testimony that during the intermediate period any unexpected event had occurred which had put them out of repair suddenly. We conclude, therefore, that a jury could properly find that the particular chute which was being operated at the time of the accident was then out of repair, and that the defect in question contributed directly to the plaintiff’s injury. It is furthermore urged that, although the chute where the accident happened may have been defective, yet the burden was on the plaintiff to show that the defendant company had knowledge of its condition
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out of order and in need of repair. Besides, there was direct evidence on the part of one of the plaintiff’s witnesses (a witness by the name of McColm), who had abundant opportunity to examine the chutes, that about 10 days after the accident none of them but one were in such a condition, owing to some defect in the pins or latches which controlled the aprons, that they would retain- the coal and prevent it from dumping prematurely, while there was no testimony that during the intermediate period any unexpected event had occurred which had put them out of repair suddenly. We conclude, therefore, that a jury could properly find that the particular chute which was being operated at the time of the accident was then out of repair, and that the defect in question contributed directly to the plaintiff’s injury. It is furthermore urged that, although the chute where the accident happened may have been defective, yet the burden was on the plaintiff to show that the defendant company had knowledge of its condition prior to the accident, and that the plaintiff himself had no such knowledge. It is said that the record contains no evidence tending to show such knowledge on the part of the defendant company, while it does appear that the plaintiff himself vTas advised of the defect of which he now complains. We are willing to- concede that it was incumbent on the plaintiff to satisfy the jury by competent evidence that the defendant knew or ought to have known before the accident that the chute was out of repair, provided it had been constructed properly in the first instance, and had become defective solely through use. We think, however, that there was some evidence which would justify a jury in concluding that the chute had been out of repair for some time prior to December 7, 1898, and that its condition ought to have been- known to the defendant-company, or to the person'whose duty it was to inspect these chutes. Wo hare already referred to Hie fact that there* was testimony to the effect
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prior to the accident, and that the plaintiff himself had no such knowledge. It is said that the record contains no evidence tending to show such knowledge on the part of the defendant company, while it does appear that the plaintiff himself vTas advised of the defect of which he now complains. We are willing to- concede that it was incumbent on the plaintiff to satisfy the jury by competent evidence that the defendant knew or ought to have known before the accident that the chute was out of repair, provided it had been constructed properly in the first instance, and had become defective solely through use. We think, however, that there was some evidence which would justify a jury in concluding that the chute had been out of repair for some time prior to December 7, 1898, and that its condition ought to have been- known to the defendant-company, or to the person'whose duty it was to inspect these chutes. Wo hare already referred to Hie fact that there* was testimony to the effect that about 10 days after the accident all of the chutes but one were out of repair, and would not operate as they should have done, owing to some defect in the latches which were designed to hold the aprons in place. The defendant claimed, and offered evidence to that effect, that the chutes were inspected daily, and were in perfect order on the evening of the accident, .and for a long time afterwards. The jury probably credited the statement of the plaintiff's witness McColm that all of the 12 chutes, with possibly one exception, were in a defective condition very shortly after the accident; and, upon the assumption that they w'*re convinced of this fact, it afforded a reasonable basis for an inference that the chutes, or some of them, were out of repair on the night of Ihe injury and for some time previous, inasmuch as it did not appear that anything had happened in the meantime that would be liable to disarrange all of the chutes in that brief period. If, a
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that about 10 days after the accident all of the chutes but one were out of repair, and would not operate as they should have done, owing to some defect in the latches which were designed to hold the aprons in place. The defendant claimed, and offered evidence to that effect, that the chutes were inspected daily, and were in perfect order on the evening of the accident, .and for a long time afterwards. The jury probably credited the statement of the plaintiff's witness McColm that all of the 12 chutes, with possibly one exception, were in a defective condition very shortly after the accident; and, upon the assumption that they w'*re convinced of this fact, it afforded a reasonable basis for an inference that the chutes, or some of them, were out of repair on the night of Ihe injury and for some time previous, inasmuch as it did not appear that anything had happened in the meantime that would be liable to disarrange all of the chutes in that brief period. If, a week after this plaintiff was hurt, the chutes, with one exception, were out of order, and in Heed of repair to make them operate perfectly, or as they were designed to opera fe, it would be reasonable, we think, to conclude that some of them were in need of rejiairs previous to December 7, 1898, and that the defect should have been discovered by the defendant company, since the testimony which it jirodnced tended to show that they were subjected to a daily examination. We think, therefore, that no error was committed by the trial court in allowing the jury to determine whether the chutes were in a defective condition on the night of the accident, and whether the defect therein was of such long standing that the defendant company, in the exercise of ordinary diligence, ought to have discovered their condition. In view of the conflict in the testimony respecting the condition of ihe pins and larches by which the aprons were hold in place, it was ihe province of ihe jury to settle
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week after this plaintiff was hurt, the chutes, with one exception, were out of order, and in Heed of repair to make them operate perfectly, or as they were designed to opera fe, it would be reasonable, we think, to conclude that some of them were in need of rejiairs previous to December 7, 1898, and that the defect should have been discovered by the defendant company, since the testimony which it jirodnced tended to show that they were subjected to a daily examination. We think, therefore, that no error was committed by the trial court in allowing the jury to determine whether the chutes were in a defective condition on the night of the accident, and whether the defect therein was of such long standing that the defendant company, in the exercise of ordinary diligence, ought to have discovered their condition. In view of the conflict in the testimony respecting the condition of ihe pins and larches by which the aprons were hold in place, it was ihe province of ihe jury to settle the controversy; and, if they found the ehutes to be in a bad state of repair on ihe occasion of the accident, it was likewise their duty to determine for how long a period the\ had probably been in that condition, and whether reasonable care had been exercised by the defendant. It is a fact which admits of no controversy that when the plaintiff took his place on the tender, in obedience to the order of his foreman, for ihe purpose of pulling on the coal chutes or boxes, he was aware that for some reason ihe particular chulé did not operate as it should have done when the rope was pulled, and that there was something which obstructed its outward movement. But it will not do to say that the testimony shows beyond peradventure that the plaintiff was aware that there was a defect: in the pin or latch of the apronof the chute which he attempted to draw, which would cause it to dump prematurely. He testified, in substance, that he had only
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the controversy; and, if they found the ehutes to be in a bad state of repair on ihe occasion of the accident, it was likewise their duty to determine for how long a period the\ had probably been in that condition, and whether reasonable care had been exercised by the defendant. It is a fact which admits of no controversy that when the plaintiff took his place on the tender, in obedience to the order of his foreman, for ihe purpose of pulling on the coal chutes or boxes, he was aware that for some reason ihe particular chulé did not operate as it should have done when the rope was pulled, and that there was something which obstructed its outward movement. But it will not do to say that the testimony shows beyond peradventure that the plaintiff was aware that there was a defect: in the pin or latch of the apronof the chute which he attempted to draw, which would cause it to dump prematurely. He testified, in substance, that he had only assisted in coaling engines at the coal chute in question for two nights prior to the accident, and that during that time he had learned that some of the aprons were open, but that the pins in most of them were so tight that they had to be knocked out with a pick. This statement did not warrant the trial court in assuming that the plaintiff knew that tin* apron of the chute which he attempted to draw was in such a condition that it would open of its own accord, but it rather made it the duty of the court to permit the jury to determine whether he had such knowledge, ór ought to have acquired it, prior to the accident. It was the province of the jury to decide what knowledge he had or ought t.o have had as respects the condition of the apron, and whether it was of such a nature as rendered him guilty of contributory negligence. It may have been, and probably was, a defect in the apron fastenings
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assisted in coaling engines at the coal chute in question for two nights prior to the accident, and that during that time he had learned that some of the aprons were open, but that the pins in most of them were so tight that they had to be knocked out with a pick. This statement did not warrant the trial court in assuming that the plaintiff knew that tin* apron of the chute which he attempted to draw was in such a condition that it would open of its own accord, but it rather made it the duty of the court to permit the jury to determine whether he had such knowledge, ór ought to have acquired it, prior to the accident. It was the province of the jury to decide what knowledge he had or ought t.o have had as respects the condition of the apron, and whether it was of such a nature as rendered him guilty of contributory negligence. It may have been, and probably was, a defect in the apron fastenings of the particular chute which he attempted to draw, occasioning an unexpected fall of a mass of coal upon the plaintiff’s body as he lay in the pit of the tender, that caused his most serious hurt, namely, the rupture of which he now complains. In view of all the testimony, the trial court had no right to declare that the plaintiff had consciously assumed the risk of being crushed or bruised by the sudden fall of five tons of coal, even if it did appear that he had consciously assumed the risk of losing his balance on the edge of the tender by the sudden outward movement of the chute. Most men in his situation, and without knowledge that the apron of the chute was out of order and that it would discharge its load prematurely, would probably have obeyed the peremptory order of the foreman (which was given, as it seems, with some show of anger) to stand on the tender and pull on the chute, and would have done so without hesitation
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of the particular chute which he attempted to draw, occasioning an unexpected fall of a mass of coal upon the plaintiff’s body as he lay in the pit of the tender, that caused his most serious hurt, namely, the rupture of which he now complains. In view of all the testimony, the trial court had no right to declare that the plaintiff had consciously assumed the risk of being crushed or bruised by the sudden fall of five tons of coal, even if it did appear that he had consciously assumed the risk of losing his balance on the edge of the tender by the sudden outward movement of the chute. Most men in his situation, and without knowledge that the apron of the chute was out of order and that it would discharge its load prematurely, would probably have obeyed the peremptory order of the foreman (which was given, as it seems, with some show of anger) to stand on the tender and pull on the chute, and would have done so without hesitation or thought of serious harm. We are not prepared to hold, therefore, and cannot assent to the proposition, that because he attempted to start the chute by pulling on it, knowing that it was obstructed by some obstacle, he thereby assumed the risk of an injury that was occasioned by an unknown defect in the apron, and is not entitled to recover for such injury. The evidence shows that there was another risk besides that of slipping into the pit of the tender, of which he may have been ignorant, that may have occasioned his chief hurt, and that this risk was incurred through the fault of the master. We are of opinion that the trial court very properly allowed the jury to determine, in the light of all the circumstances, whether the plaintiff was guilty of such contributory negligence in obeying the order of .the foreman, and in taking such a position as he did on the tender, as should preclude him from recovering. It is further urged by the defendant company that the plaintiff
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or thought of serious harm. We are not prepared to hold, therefore, and cannot assent to the proposition, that because he attempted to start the chute by pulling on it, knowing that it was obstructed by some obstacle, he thereby assumed the risk of an injury that was occasioned by an unknown defect in the apron, and is not entitled to recover for such injury. The evidence shows that there was another risk besides that of slipping into the pit of the tender, of which he may have been ignorant, that may have occasioned his chief hurt, and that this risk was incurred through the fault of the master. We are of opinion that the trial court very properly allowed the jury to determine, in the light of all the circumstances, whether the plaintiff was guilty of such contributory negligence in obeying the order of .the foreman, and in taking such a position as he did on the tender, as should preclude him from recovering. It is further urged by the defendant company that the plaintiff on December 12, 1898, for a valuable consideration, released it from all causes of action then existing, and that this action is barred by the release, which is in the following form: “Form 2,704. Great Northern Railway Line. Great Northern Railway Company. Release of Damages. “Know all men by these presents, that in Consideration of the sum of medical attention-to me in hand paid by the Great Northern Railway Company, the receipt whereof is hereby acknowledged, 1 have released, acquitted, and discharged, and by these presents do release, acquit, and forever discharge, the said railway company, its successors and assigns, of and from any. and all cause or causes of action, costs, charges, claim, or demand, of whatever name or’ nature, in any manner arising or to grow out of personal injuries received by me at Breckenridge on Dec. 6th, 1898, while assisting in coaling engine No. 200. I slipped and fell into tank pit, and coal from pocket fell on me, whereby I was severely injured. The receipt of said sum of medi- cal attention dollars being
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on December 12, 1898, for a valuable consideration, released it from all causes of action then existing, and that this action is barred by the release, which is in the following form: “Form 2,704. Great Northern Railway Line. Great Northern Railway Company. Release of Damages. “Know all men by these presents, that in Consideration of the sum of medical attention-to me in hand paid by the Great Northern Railway Company, the receipt whereof is hereby acknowledged, 1 have released, acquitted, and discharged, and by these presents do release, acquit, and forever discharge, the said railway company, its successors and assigns, of and from any. and all cause or causes of action, costs, charges, claim, or demand, of whatever name or’ nature, in any manner arising or to grow out of personal injuries received by me at Breckenridge on Dec. 6th, 1898, while assisting in coaling engine No. 200. I slipped and fell into tank pit, and coal from pocket fell on me, whereby I was severely injured. The receipt of said sum of medi- cal attention dollars being hereby acknowledged to be in full payment, satisfaction, and discharge of any and all such cause or causes of action, costs, charges, and demand arising or growing out of said .personal injuries received as aforesaid. "Tn witness whereof, I have hereunto set my hand and seal this 12th day of December, A. D. 1898. Carl Kasischke. [Seal.] “In presence of ' “J. O. Nolan, “E. Abig.” Along Hie margin of this release was written the following statement, hut it was unsigned: “This release read and explained to me before signature, and releases all claims for personal injury to date.” With respect to this document the plaintiff testified, in substance, that on December 12, 1898, live days after the accident, he was sent for to come to the roundhouse; that he was somewhat affected by dizziness at that time, as a result of the accident; that on reaching the office in the roundhouse he was shown a paper by the division master mechanic, J. C. Nolan, and was asked if he understood it; that he told Xolan at the time that he
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hereby acknowledged to be in full payment, satisfaction, and discharge of any and all such cause or causes of action, costs, charges, and demand arising or growing out of said .personal injuries received as aforesaid. "Tn witness whereof, I have hereunto set my hand and seal this 12th day of December, A. D. 1898. Carl Kasischke. [Seal.] “In presence of ' “J. O. Nolan, “E. Abig.” Along Hie margin of this release was written the following statement, hut it was unsigned: “This release read and explained to me before signature, and releases all claims for personal injury to date.” With respect to this document the plaintiff testified, in substance, that on December 12, 1898, live days after the accident, he was sent for to come to the roundhouse; that he was somewhat affected by dizziness at that time, as a result of the accident; that on reaching the office in the roundhouse he was shown a paper by the division master mechanic, J. C. Nolan, and was asked if he understood it; that he told Xolan at the time that he could neither read nor write English; that Xolan then read the paper to him, hut that he did not understand it fully or accurately; that, in the course of the conversation which ensued about the paper, he told Xolan that his doctor had asked him that morning for a dollar, and that Xolan replied, “The company will pay your doctor hill and give you a light job.” He further testified, in substance, that Nolan did not explain to him tha t the document was intended as a release of his claim for damages on account of the injury that he had sustained; that he did not understand it to be an agreement of Iliac nature, but did suppose that it was an engagement on the company's part to pay Ms doctor and give him a light job, because Xolan said ihey would do so when he was asked to sign the document. lie also testified that the interview with Xolan, when the 'paper was signed, lasted only five or ten minutes; that no money was
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2,338,568 |
could neither read nor write English; that Xolan then read the paper to him, hut that he did not understand it fully or accurately; that, in the course of the conversation which ensued about the paper, he told Xolan that his doctor had asked him that morning for a dollar, and that Xolan replied, “The company will pay your doctor hill and give you a light job.” He further testified, in substance, that Nolan did not explain to him tha t the document was intended as a release of his claim for damages on account of the injury that he had sustained; that he did not understand it to be an agreement of Iliac nature, but did suppose that it was an engagement on the company's part to pay Ms doctor and give him a light job, because Xolan said ihey would do so when he was asked to sign the document. lie also testified that the interview with Xolan, when the 'paper was signed, lasted only five or ten minutes; that no money was paid to him at that time or afterwards; that nothing was said about paying him any money; that he ascertained the real purport of the writing after it was signed, through a conversation with some of Ms fellow workmen, and that he would not have signed the paper had he known it to be a release of all claims against the company for being injured. The evidence for the defendant with respect to this transaction was, as a matter of course, entirely different, and tended to establish that the release in question was not only read by Xolan, hut that the object thereof was fully explained to the plaintiff before it was signed, and that he executed it with a full knowledge of the language employed, even if he did not comprehend its legal effect. It was clearly the duty of the master mechanic, when he was informed that the plaintiff could not read or write English, and that he relied upon Mm for an explanation of the contents of the paper, to explain its purport
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paid to him at that time or afterwards; that nothing was said about paying him any money; that he ascertained the real purport of the writing after it was signed, through a conversation with some of Ms fellow workmen, and that he would not have signed the paper had he known it to be a release of all claims against the company for being injured. The evidence for the defendant with respect to this transaction was, as a matter of course, entirely different, and tended to establish that the release in question was not only read by Xolan, hut that the object thereof was fully explained to the plaintiff before it was signed, and that he executed it with a full knowledge of the language employed, even if he did not comprehend its legal effect. It was clearly the duty of the master mechanic, when he was informed that the plaintiff could not read or write English, and that he relied upon Mm for an explanation of the contents of the paper, to explain its purport and the object of asking him to sign it, and to do so fully, in language which the plaintiff could comprehend. Because Nolan represented the defendant company in the transaction, it was his duty to exercise special care in explaining its contents to the plaintiff. It was likewise the plaintiffs duty to make reasonable efforts to obtain a correct understanding of the document before he signed it, and not to sign it until he had reasonable grounds for believing that, he did understand it. Railway Co. v. Belliwith, 28 C. C. A. 358, 83 Fed. 437. We think, however, that the plaintiff had a right to rely upon Nolan for an explanation of the meaning and effect of the paper, inasmuch as he assumed the duty of interpreting and explaining it, and that the plaintiff was not bound to seek other advice on the subject. The result is that if Nolan, by his statements or conduct, misled the plaintiff in any manner as to tlie effect of the instrument and induced him to believe that
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and the object of asking him to sign it, and to do so fully, in language which the plaintiff could comprehend. Because Nolan represented the defendant company in the transaction, it was his duty to exercise special care in explaining its contents to the plaintiff. It was likewise the plaintiffs duty to make reasonable efforts to obtain a correct understanding of the document before he signed it, and not to sign it until he had reasonable grounds for believing that, he did understand it. Railway Co. v. Belliwith, 28 C. C. A. 358, 83 Fed. 437. We think, however, that the plaintiff had a right to rely upon Nolan for an explanation of the meaning and effect of the paper, inasmuch as he assumed the duty of interpreting and explaining it, and that the plaintiff was not bound to seek other advice on the subject. The result is that if Nolan, by his statements or conduct, misled the plaintiff in any manner as to tlie effect of the instrument and induced him to believe that it was merely a writing by which he was to have his doctor’s bill paid and get a light job, and that it was not in fact a release of his cause of action, it ought not to stand or be accepted in the present action as a bar to a recovery. The contention of the defendant company is that there was no evidence whatsoever which tended in any way to impeach, the validity of the release, and that the court should have so declared. But, in the light of what has been said, we are unable to assent to that proposition. In the first place, the consideration recited in the release as moving from the defendant company, to wit, “medical attention,” was trifling in comparison with the permanent bodily injury which the plaintiff appears to have sustained; and this in itself raises a suspicion of unfairness, and gives color to the claim that the plaintiff was in some way deceived, and did not understand that he was releasing his right of action. Aside from
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it was merely a writing by which he was to have his doctor’s bill paid and get a light job, and that it was not in fact a release of his cause of action, it ought not to stand or be accepted in the present action as a bar to a recovery. The contention of the defendant company is that there was no evidence whatsoever which tended in any way to impeach, the validity of the release, and that the court should have so declared. But, in the light of what has been said, we are unable to assent to that proposition. In the first place, the consideration recited in the release as moving from the defendant company, to wit, “medical attention,” was trifling in comparison with the permanent bodily injury which the plaintiff appears to have sustained; and this in itself raises a suspicion of unfairness, and gives color to the claim that the plaintiff was in some way deceived, and did not understand that he was releasing his right of action. Aside from this view are the positive statements of the plaintiff that he was not advised that the instrument was intended as a release of his claim for damages; that he would not have signed it had he understood such to be the object of asking his signature; that statements or representations were made by Nolan, which are not embodied in the document, that gave him a different understanding of its purpose; and the obvious facts that the plaintiff was to some extent subject to the influence of his superior officer, and had a very imperfect knowledge of the language in which the paper was written, and in which the negotiations leading to its- signature were conducted. These considerations, in our opinion, warranted the trial court in permitting the jury to determine whether the plaintiff had consciously released his right of action, or whether his signature to the release had been obtained by conduct or representations on the part of the company’s agent which amounted to deceit. While it is essential to the public welfare that the
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this view are the positive statements of the plaintiff that he was not advised that the instrument was intended as a release of his claim for damages; that he would not have signed it had he understood such to be the object of asking his signature; that statements or representations were made by Nolan, which are not embodied in the document, that gave him a different understanding of its purpose; and the obvious facts that the plaintiff was to some extent subject to the influence of his superior officer, and had a very imperfect knowledge of the language in which the paper was written, and in which the negotiations leading to its- signature were conducted. These considerations, in our opinion, warranted the trial court in permitting the jury to determine whether the plaintiff had consciously released his right of action, or whether his signature to the release had been obtained by conduct or representations on the part of the company’s agent which amounted to deceit. While it is essential to the public welfare that the integrity of written contracts should be maintained, by requiring the parties thereto, before they sign the same, to exercise reasonable diligence in acquiring a correct knowledge of their meaning and effect, yet it is equally important that the rule of law in this respect should not be applied with such strictness as will enable persons who are so' disposed to easily overreach those who are unlettered and unwary, and deprive them of valuable rights. In this instance we are satisfied that it was the function of the jury to decide whether the plaintiff was deceived as to the contents of the release, and also to determine whether he was guilty of any such negligence in execut- mg it, under the circumstances disclosed by the proof, as should estop him from contesting its validity. The foregoing comprehends all of the substantial grounds on which the right to a reversal is predicated, and, for the reasons stated, we think that none of them would warrant such action. The judgment below is accordingly affirmed. SANBORN, Circuit Judge. I am unable to
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integrity of written contracts should be maintained, by requiring the parties thereto, before they sign the same, to exercise reasonable diligence in acquiring a correct knowledge of their meaning and effect, yet it is equally important that the rule of law in this respect should not be applied with such strictness as will enable persons who are so' disposed to easily overreach those who are unlettered and unwary, and deprive them of valuable rights. In this instance we are satisfied that it was the function of the jury to decide whether the plaintiff was deceived as to the contents of the release, and also to determine whether he was guilty of any such negligence in execut- mg it, under the circumstances disclosed by the proof, as should estop him from contesting its validity. The foregoing comprehends all of the substantial grounds on which the right to a reversal is predicated, and, for the reasons stated, we think that none of them would warrant such action. The judgment below is accordingly affirmed. SANBORN, Circuit Judge. I am unable to yield assent to the opinion and decision of the majority of the court in this case, because it seems to me that the undisputed evidence shows that the injury which the plaintiff sustained was the direct result of his own contributory negligence, and because, if he had any claim against the railroad company, he released it. The uncontradicted evidence is that the theory of the construction and operation of the boxes containing the coal was that they should hold the coal after they were drawn out to the engine, until the pins were drawn and the aprons were released by the operator. The testimony is equally conclusive and uncontr-adicted, however, that these boxes never did in fact so operate, but that when they were in perfect condition the pins and aprons would not hold the coal after they were drawn forward to the engine, and they would frequently automatically dump It, so that it was always dangerous for an employó to be in front of them when they were drawn forth. There is a conflict in
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yield assent to the opinion and decision of the majority of the court in this case, because it seems to me that the undisputed evidence shows that the injury which the plaintiff sustained was the direct result of his own contributory negligence, and because, if he had any claim against the railroad company, he released it. The uncontradicted evidence is that the theory of the construction and operation of the boxes containing the coal was that they should hold the coal after they were drawn out to the engine, until the pins were drawn and the aprons were released by the operator. The testimony is equally conclusive and uncontr-adicted, however, that these boxes never did in fact so operate, but that when they were in perfect condition the pins and aprons would not hold the coal after they were drawn forward to the engine, and they would frequently automatically dump It, so that it was always dangerous for an employó to be in front of them when they were drawn forth. There is a conflict in the evidence respecting their condition at the time of the accident. The testimony for the defendant is that they were in order. The plaintiff himself testified that some of them opened themselves before and at the time of the accident, but that it was necessary to open most of them with a pick; and one of his witnesses testified that ten days after the accident all but one of them were so out of repair that they would dump the coal automatically. The opinion of the majority assumes that the condition of the boxes at the time of the accident was that described by this last witness. If this was their condition at the time of, it had undoubtedly been their condition for at least four days before, the accident. The evidence is uncontradict-ed that the plaintiff assisted in coaling the engines only when the boxes would not slide out by the use of the rope, and that he had assisted in pulling these coal boxes out and in coaling the engines from them for
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the evidence respecting their condition at the time of the accident. The testimony for the defendant is that they were in order. The plaintiff himself testified that some of them opened themselves before and at the time of the accident, but that it was necessary to open most of them with a pick; and one of his witnesses testified that ten days after the accident all but one of them were so out of repair that they would dump the coal automatically. The opinion of the majority assumes that the condition of the boxes at the time of the accident was that described by this last witness. If this was their condition at the time of, it had undoubtedly been their condition for at least four days before, the accident. The evidence is uncontradict-ed that the plaintiff assisted in coaling the engines only when the boxes would not slide out by the use of the rope, and that he had assisted in pulling these coal boxes out and in coaling the engines from them for the four nights immediately preceding the accident, and that he had done so 7 or 8 times each night, or from 28 to 32 times. He testified himself that during this time some of these boxes opened themselves, and that some of them they were compelled to loosen with a pick. Now, if, as the majori'y of the court assume, all the boxes but one dumped automatically at the time of the accident', because they were out of repair, the plaintiff must have known that fact, and he must have been aware of the risk and danger of placing himself in front of them. On the other hand, if they were in order, and if, as the uncontradicted testimony proves, they frequently dumped automatically when they were in perfect repair, so that there was always danger that they would do so, he must have known this fact. Whichever view of the testimony is taken, therefore, he was assisting to operate these boxes, and his opportunity to know and his knowledge of their condition and operation,
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the four nights immediately preceding the accident, and that he had done so 7 or 8 times each night, or from 28 to 32 times. He testified himself that during this time some of these boxes opened themselves, and that some of them they were compelled to loosen with a pick. Now, if, as the majori'y of the court assume, all the boxes but one dumped automatically at the time of the accident', because they were out of repair, the plaintiff must have known that fact, and he must have been aware of the risk and danger of placing himself in front of them. On the other hand, if they were in order, and if, as the uncontradicted testimony proves, they frequently dumped automatically when they were in perfect repair, so that there was always danger that they would do so, he must have known this fact. Whichever view of the testimony is taken, therefore, he was assisting to operate these boxes, and his opportunity to know and his knowledge of their condition and operation, and of the risk and danger attending their operation, were necessarily better and more intimate than any that the defendant could acquire by a diligent inspection; and if, upon this testimony, the defendant could be guilty of negligence because it might have learned by inspection that the boxes were out of repair, much more was the plaintiff guilty of contributory negligence because he had the best opportunity to learn, and he himself testifies that he did know, that they dumped automatically, and knowing this he must have known the risk and danger of placing himself in front of one of them when he was pulling at its door with all his power. It was gross negligence for the plaintiff to permit himself, with this knowledge, to be found in front of the door of one of these boxes when it was about to be drawn forth to its dumping place. If he had not so placed himself, he would not have been injured. The result is that his accident was necessarily the direct result of
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and of the risk and danger attending their operation, were necessarily better and more intimate than any that the defendant could acquire by a diligent inspection; and if, upon this testimony, the defendant could be guilty of negligence because it might have learned by inspection that the boxes were out of repair, much more was the plaintiff guilty of contributory negligence because he had the best opportunity to learn, and he himself testifies that he did know, that they dumped automatically, and knowing this he must have known the risk and danger of placing himself in front of one of them when he was pulling at its door with all his power. It was gross negligence for the plaintiff to permit himself, with this knowledge, to be found in front of the door of one of these boxes when it was about to be drawn forth to its dumping place. If he had not so placed himself, he would not have been injured. The result is that his accident was necessarily the direct result of his own negligence, for which the defendant was not liable, and the judgment against it should be reversed. Nor am I willing to. assent to the proposition that there was sufficient evidence of misrepresentation, fraud, or deceit in procuring the release which the plaintiff executed to warrant its avoidance. If the testimony of one of the parties to a written contract, who did not read it, or procure any friend or disinterested person to iead or explain it to him, but to whom it was read and explained by the agent of the other party, that he did not know its purport or that he was deceived in its terms, is to be deemed sufficient to set it aside, when that testimony is contradicted by all the other witnesses to the transaction, written agreements will not only lose their sanctity, but their reason for being. It is a settled rule of law that written contracts may not be set aside or disregarded for fraud or deceit in their procurement unless the evidence of the fraud or
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his own negligence, for which the defendant was not liable, and the judgment against it should be reversed. Nor am I willing to. assent to the proposition that there was sufficient evidence of misrepresentation, fraud, or deceit in procuring the release which the plaintiff executed to warrant its avoidance. If the testimony of one of the parties to a written contract, who did not read it, or procure any friend or disinterested person to iead or explain it to him, but to whom it was read and explained by the agent of the other party, that he did not know its purport or that he was deceived in its terms, is to be deemed sufficient to set it aside, when that testimony is contradicted by all the other witnesses to the transaction, written agreements will not only lose their sanctity, but their reason for being. It is a settled rule of law that written contracts may not be set aside or disregarded for fraud or deceit in their procurement unless the evidence of the fraud or mistake is clear, unequivocal, and convincing. In my opinion, the evidence in this case was not only not clear and convincing that there was fraud and deceit, but it was unequivocal and overwhelming that there was none. The story of the plaintiff is incredible in itself. It is that he did not know that the instrument he signed was a release of his claim, but that he supposed that it was a mere agreement on the part of the railroad company to give him a light job and pay him Ms doctor’s bill. But the company needed to make no agreement to enable it to do these things, and the plaintiff must have known that his signature was not sought without purpose or reason. He does not claim that Holán, who read the agreement to him, told him that the contract stipulated that he should have a light job. He admits that Nolan read .the contract to him, and he simply claims that Nolan told him that he should have a light job, and the
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mistake is clear, unequivocal, and convincing. In my opinion, the evidence in this case was not only not clear and convincing that there was fraud and deceit, but it was unequivocal and overwhelming that there was none. The story of the plaintiff is incredible in itself. It is that he did not know that the instrument he signed was a release of his claim, but that he supposed that it was a mere agreement on the part of the railroad company to give him a light job and pay him Ms doctor’s bill. But the company needed to make no agreement to enable it to do these things, and the plaintiff must have known that his signature was not sought without purpose or reason. He does not claim that Holán, who read the agreement to him, told him that the contract stipulated that he should have a light job. He admits that Nolan read .the contract to him, and he simply claims that Nolan told him that he should have a light job, and the payment of his doctor’s bill. If this testimony was true, his remedy was not an avoidance of his agreement, but an action for damages for the failure to give Mm the job, and to pay him his doctor’s bill, if indeed there was such a failure. There does not seem to me to be sufficient proof of fraud or deceit in the testimony of the plaintiff, standing alone, to warrant an avoidance of Ms release. But it does not stand alone. Nolan, who read the agreement to him, testifies that he read it in full and clearly explained it, that he told him that it was a release of his claim against the defendant, and that he made no misrepresentation to him of its contents. Abig, the witness to the contract, testifies that, when 'Nolan read it to the plaintiff in English, the latter said that he understood it, but that, for fear that he might not fully understand it, he explained it to him in German. He testified that he said to him in
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payment of his doctor’s bill. If this testimony was true, his remedy was not an avoidance of his agreement, but an action for damages for the failure to give Mm the job, and to pay him his doctor’s bill, if indeed there was such a failure. There does not seem to me to be sufficient proof of fraud or deceit in the testimony of the plaintiff, standing alone, to warrant an avoidance of Ms release. But it does not stand alone. Nolan, who read the agreement to him, testifies that he read it in full and clearly explained it, that he told him that it was a release of his claim against the defendant, and that he made no misrepresentation to him of its contents. Abig, the witness to the contract, testifies that, when 'Nolan read it to the plaintiff in English, the latter said that he understood it, but that, for fear that he might not fully understand it, he explained it to him in German. He testified that he said to him in that language, “Charley, by signing this paper you release the company of any further claim on account of this damage,” and that the plaintiff replied, “Yes, yes, yes, I understand,” and thereafter executed the release. When the attention of the plaintiff was called to this conversation in his testimony in rebuttal, he did not deny it. He merely said he did not remember it. In this state of the record, there seems to me to be not only no evidence which would warrant a jury in finding that this release was procured by misrepresentation or deceit, but conclusive proof that it was not so obtained, and the court below should have so instructed the jury. The case falls fairly under the decision of this court in Railway Co. v. Belliwith, 83 Fed. 437, 28 C. C. A. 358, 55 U. S. App. 113, where my views of the law upon these questions and the importance of its enforcement are expressed more forcibly and more at length.
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PER CURIAM: Jeremy Daubon appeals his 144-month prison sentence after pleading guilty to one count of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2), (b)(1). He argues that the District Court imposed a procedurally unreasonable sentence by relying on clearly erroneous factual findings in determining the applicable sentencing guidelines and, then, in fashioning his sentence. He also argues that the Court imposed a substantively unreasonable sentence by placing undue emphasis on one of the sentencing factors established by 18 U.S.C. § 3553(a). We review the reasonableness of a sentence under a deferential abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We first ensure that the district court committed no significant procedural error, such as basing its sentence on clearly erroneous facts. Id. at 51, 128 S.Ct. 586. A clearly erroneous factual finding occurs when “after reviewing all of the evidence,” we are “left with a definite and firm conviction that a mistake has been committed.” United States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). Assuming the sentence is not procedurally unreasonable, we ensure that it is not substantively unreasonable in light of the § 3553(a)(2) factors, which include the need to reflect the seriousness of the offense, to provide just punishment for the offense, and to deter future criminal conduct. See 18 U.S.C. § 3553(a)(2). The emphasis given to one factor is committed to the sound discretion of the district court, but a court’s unjustified reliance on any one § 3553(a) factor may be a symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006). A sentence imposed well below the statutory maximum penalty is another indicator of a reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Daubon contends that his sentence is procedurally unreasonable because the District Court relied on erroneous factual findings regarding his risk of recidivism— the need for a prison sentence in order to deter his future criminal conduct. We find no clear error. The Court’s disagreement with his expert’s opinion was carefully
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(11th Cir. 1998). Assuming the sentence is not procedurally unreasonable, we ensure that it is not substantively unreasonable in light of the § 3553(a)(2) factors, which include the need to reflect the seriousness of the offense, to provide just punishment for the offense, and to deter future criminal conduct. See 18 U.S.C. § 3553(a)(2). The emphasis given to one factor is committed to the sound discretion of the district court, but a court’s unjustified reliance on any one § 3553(a) factor may be a symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006). A sentence imposed well below the statutory maximum penalty is another indicator of a reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Daubon contends that his sentence is procedurally unreasonable because the District Court relied on erroneous factual findings regarding his risk of recidivism— the need for a prison sentence in order to deter his future criminal conduct. We find no clear error. The Court’s disagreement with his expert’s opinion was carefully weighed with the relevant facts in the record, including facts that were undisputed, and thus was not clearly erroneous. Dau-bon contends that his sentence is substantively unreasonable because the Court gave improper weight to his potential for recividism and the need for his incarceration. We disagree. Daubon’s criminal behavior became more serious over time. He amassed a large collection of pornography, had described his victims in sexually derogatory terms, and had been diagnosed with psychological disorders that resulted in an addiction to pornography. In sum, we find no procedural or substantive unreasonableness in Daubon’s sentence. It is therefore AFFIRMED.
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JOHNSON, Circuit Judge: Harold and Joeanne Antwine appeal from a judgment of the district court denying a motion to set aside an arbitration award and granting a motion to enforce the award. For the reasons cited herein, we affirm. I. FACTS AND PROCEDURAL HISTORY In 1985, Harold and Joeanne Antwine were owners and operators of a drug store which provided them with an annual income of approximately $40,000.00. That year, Mr. Antwine inherited a $1,000,000.00 stock portfolio. Although the Antwines originally planned on investing in insured municipal bonds which would yield a tax free annual income of approximately $80,-000.00, the couple instead decided to opt for the possibility of a $200,000.00 annual income by trading in options. In so deciding, the Antwines reportedly relied on representations made by James Palmer, the Branch Manager of the Jackson, Mississippi, office of Prudential Bache Securities, Inc., to the effect that trading in options was profitable eighty-five percent of the time. The Antwines' experience with options trading was a dismal failure. Instead of making money, they lost money. Accordingly, the Antwines terminated their relationship with Prudential Bache and filed a complaint against the company in federal district court. The Antwines’ complaint, which alleged violations of state and federal securities laws, charged Prudential Bache with making misstatements and omissions of material facts about the risks and mechanics of options trading. The Antwines also alleged pendant state law claims of deceit, negligent misrepresentation and breach of fiduciary duty. The district court, relying on the terms of a joint account agreement signed by the parties prior to this litigation, entered an agreed order staying litigation pending arbitration. The matter was then submitted to an arbitration panel of the American Arbitration Association. After three and one-half days of hearings, the arbitration panel entered an award which stated that “[a]ll claims submitted by Mr. & Mrs. H.M. Antwine are denied.... This Award is in full settlement of all claims submitted to this Arbitration.” After the arbitration award was entered, the Antwines requested “clarification” from the arbitration panel. The arbitrators declined the Antwines’ request, and accordingly, the Antwines re fused to enter into an agreed
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relationship with Prudential Bache and filed a complaint against the company in federal district court. The Antwines’ complaint, which alleged violations of state and federal securities laws, charged Prudential Bache with making misstatements and omissions of material facts about the risks and mechanics of options trading. The Antwines also alleged pendant state law claims of deceit, negligent misrepresentation and breach of fiduciary duty. The district court, relying on the terms of a joint account agreement signed by the parties prior to this litigation, entered an agreed order staying litigation pending arbitration. The matter was then submitted to an arbitration panel of the American Arbitration Association. After three and one-half days of hearings, the arbitration panel entered an award which stated that “[a]ll claims submitted by Mr. & Mrs. H.M. Antwine are denied.... This Award is in full settlement of all claims submitted to this Arbitration.” After the arbitration award was entered, the Antwines requested “clarification” from the arbitration panel. The arbitrators declined the Antwines’ request, and accordingly, the Antwines re fused to enter into an agreed order dismissing their action in federal court. Thereafter, Prudential Bache moved for summary judgment against the Antwines. In response, the Antwines moved for vacation of the arbitration award alleging that the award failed to satisfy the strictures of Rule 42 of the American Arbitration Association’s (AAA) Securities Arbitration Rules. More specifically, the Antwines alleged that because the arbitration panel did not provide the reasons for its decision, it acted in violation of the Securities Arbitration Rule 42 requirement that an arbitration award include a “statement” regarding the disposition of any statutory claims. The district court granted Prudential Bache’s motion for summary judgment, denied the Antwines’ motion to vacate the arbitration award and entered judgment dismissing the action with prejudice. The Antwines thereafter timely filed the instant appeal. II. DISCUSSION The sole issue on appeal is whether the arbitration award in this case should have been set aside by the district court because of the arbitration panel’s alleged noncompliance with the requirements of Securities Arbitration Rule 42. The Federal Arbitration Act gives federal courts the power to vacate an
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order dismissing their action in federal court. Thereafter, Prudential Bache moved for summary judgment against the Antwines. In response, the Antwines moved for vacation of the arbitration award alleging that the award failed to satisfy the strictures of Rule 42 of the American Arbitration Association’s (AAA) Securities Arbitration Rules. More specifically, the Antwines alleged that because the arbitration panel did not provide the reasons for its decision, it acted in violation of the Securities Arbitration Rule 42 requirement that an arbitration award include a “statement” regarding the disposition of any statutory claims. The district court granted Prudential Bache’s motion for summary judgment, denied the Antwines’ motion to vacate the arbitration award and entered judgment dismissing the action with prejudice. The Antwines thereafter timely filed the instant appeal. II. DISCUSSION The sole issue on appeal is whether the arbitration award in this case should have been set aside by the district court because of the arbitration panel’s alleged noncompliance with the requirements of Securities Arbitration Rule 42. The Federal Arbitration Act gives federal courts the power to vacate an award “[wjhere the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award ... was not made.” 9 U.S.C. § 10(d). On appeal the Antwines do not contend that the arbitrators exceeded their powers, but rather that the arbitrators so imperfectly executed their powers that a mutual, final and definite award was not made. We are constrained to disagree. The Antwines advance the argument that Securities Arbitration Rule 42’s requirement that an award include a statement regarding the disposition of statutory claims should be interpreted to mean that the arbitrators are bound to offer an explanation for an award. It has long been settled that arbitrators are not required to disclose or explain the reasons underlying an award. United Steel Workers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). The policy behind such a rule is manifest. If arbitrators were required to issue an opinion or otherwise detail the reasons underlying an arbitration award, the very purpose of
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award “[wjhere the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award ... was not made.” 9 U.S.C. § 10(d). On appeal the Antwines do not contend that the arbitrators exceeded their powers, but rather that the arbitrators so imperfectly executed their powers that a mutual, final and definite award was not made. We are constrained to disagree. The Antwines advance the argument that Securities Arbitration Rule 42’s requirement that an award include a statement regarding the disposition of statutory claims should be interpreted to mean that the arbitrators are bound to offer an explanation for an award. It has long been settled that arbitrators are not required to disclose or explain the reasons underlying an award. United Steel Workers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). The policy behind such a rule is manifest. If arbitrators were required to issue an opinion or otherwise detail the reasons underlying an arbitration award, the very purpose of arbitration — the provision of a relatively quick, efficient and informal means of private dispute settlement — would be markedly undermined. See Sobel v. Hertz, Warner and Co., 469 F.2d 1211, 1214 (2d Cir.1972). Nevertheless, the Antwines maintain that the fundamental principle addressed above does not apply in the instant case because the Antwines’ claims were arbitrated under the newer Securities Arbitration Rule 42 rather than the older Commercial Arbitration Rule 42. The language of Securities Arbitration Rule 42 is identical to the language of Commercial Arbitration Rule 42 with one exception. Commercial Arbitration Rule 42 provides that “[t]he award shall be in writing and shall be signed by a majority of the arbitrators. It shall be executed in the manner required by law.” The newer Securities Arbitration Rule 42 adds the following language to the language of the older Commercial Arbitration Rule 42: “[t]he award ... shall include a statement regarding the disposition of any statutory claims.” As we interpret this additional language of Rule 42 of the Securities Arbitration Rules, it does not, as the
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arbitration — the provision of a relatively quick, efficient and informal means of private dispute settlement — would be markedly undermined. See Sobel v. Hertz, Warner and Co., 469 F.2d 1211, 1214 (2d Cir.1972). Nevertheless, the Antwines maintain that the fundamental principle addressed above does not apply in the instant case because the Antwines’ claims were arbitrated under the newer Securities Arbitration Rule 42 rather than the older Commercial Arbitration Rule 42. The language of Securities Arbitration Rule 42 is identical to the language of Commercial Arbitration Rule 42 with one exception. Commercial Arbitration Rule 42 provides that “[t]he award shall be in writing and shall be signed by a majority of the arbitrators. It shall be executed in the manner required by law.” The newer Securities Arbitration Rule 42 adds the following language to the language of the older Commercial Arbitration Rule 42: “[t]he award ... shall include a statement regarding the disposition of any statutory claims.” As we interpret this additional language of Rule 42 of the Securities Arbitration Rules, it does not, as the Antwines’ would have us hold, compel the arbitration panel to explain the reasons underlying the disposition of statutory claims in an arbitration award. If the new rule were to require an award to include a “statement of reasons ” regarding the disposition of statutory claims, our conclusion today might be different. However, the language does not so read; instead, the newer rule requires an award to include a “statement” regarding the disposition of statutory claims. Thus, we conclude that the “statement” requirement of Rule 42 of the Securities Arbitration Rules does not imply that an arbitration panel must articulate reasons for an award. Even assuming for the sake of argument that Securities Arbitration Rule 42 requires an arbitration panel to tender written reasons underlying the disposition of statutory claims, any perceived error in this case does not rise to the level which would warrant judicial intervention. Judicial review of an arbitration award is extraordinarily narrow and this Court should defer to the arbitrator’s decision when possible. See, e.g., Wilko v. Swan, 346 U.S. 427, 436, 74
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Antwines’ would have us hold, compel the arbitration panel to explain the reasons underlying the disposition of statutory claims in an arbitration award. If the new rule were to require an award to include a “statement of reasons ” regarding the disposition of statutory claims, our conclusion today might be different. However, the language does not so read; instead, the newer rule requires an award to include a “statement” regarding the disposition of statutory claims. Thus, we conclude that the “statement” requirement of Rule 42 of the Securities Arbitration Rules does not imply that an arbitration panel must articulate reasons for an award. Even assuming for the sake of argument that Securities Arbitration Rule 42 requires an arbitration panel to tender written reasons underlying the disposition of statutory claims, any perceived error in this case does not rise to the level which would warrant judicial intervention. Judicial review of an arbitration award is extraordinarily narrow and this Court should defer to the arbitrator’s decision when possible. See, e.g., Wilko v. Swan, 346 U.S. 427, 436, 74 S.Ct. 182, 187, 98 L.Ed. 168 (1953), overruled on other grounds, Rodriguez de Quijos, et al. v. Shearson/American Express, Inc., — U.S. -, -, 109 S.Ct. 1917, 1921, 104 L.Ed.2d 526 (1989) (judicial review of an arbitration award is even narrower than judicial review of trial proceedings). Section 10(d) of the Federal Arbitration Act provides that a district court should vacate an arbitration award “[wjhere the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(d). As mentioned previously, the Antwines do not argue that the arbitrators exceeded their powers, but rather that the arbitrators so imperfectly executed their powers that a mutual, final and definite award was not made. The award and statement provided by the arbitrators in this case, however, was clear and concise. It lacked any hint of ambiguity. Accordingly, we conclude that a mutual, final and definite award was made and, thus, the district court did not err in denying the Antwines’ motion to
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S.Ct. 182, 187, 98 L.Ed. 168 (1953), overruled on other grounds, Rodriguez de Quijos, et al. v. Shearson/American Express, Inc., — U.S. -, -, 109 S.Ct. 1917, 1921, 104 L.Ed.2d 526 (1989) (judicial review of an arbitration award is even narrower than judicial review of trial proceedings). Section 10(d) of the Federal Arbitration Act provides that a district court should vacate an arbitration award “[wjhere the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(d). As mentioned previously, the Antwines do not argue that the arbitrators exceeded their powers, but rather that the arbitrators so imperfectly executed their powers that a mutual, final and definite award was not made. The award and statement provided by the arbitrators in this case, however, was clear and concise. It lacked any hint of ambiguity. Accordingly, we conclude that a mutual, final and definite award was made and, thus, the district court did not err in denying the Antwines’ motion to vacate the award. III. CONCLUSION Rule 42 of the Securities Arbitration Rules does not require an arbitration panel to provide a statement of reasons underlying an arbitration award. The district court’s denial of the motion to vacate the award and judgment enforcing the award was not error. The judgment of the district court is affirmed. AFFIRMED. . The joint account agreement provided for arbitration as the resolution mechanism in the event of a dispute. The agreement provided in pertinent part as follows: This contract ... shall be binding on the undersigned .... Any controversy arising out of or relating to my account ... shall be settled by arbitration in accordance with the rules then obtaining of ... the American Arbitration Association. . The Antwines appear to at least implicitly argue that Commercial Arbitration Rule 42 embodies the long standing principle that, in the interest of expediency and economy, an arbitration panel need not give reasons underlying an award. On the other hand, the Antwines imply that Securities Arbitration Rule 42, with its requirement that an arbitration panel tender a statement regarding
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vacate the award. III. CONCLUSION Rule 42 of the Securities Arbitration Rules does not require an arbitration panel to provide a statement of reasons underlying an arbitration award. The district court’s denial of the motion to vacate the award and judgment enforcing the award was not error. The judgment of the district court is affirmed. AFFIRMED. . The joint account agreement provided for arbitration as the resolution mechanism in the event of a dispute. The agreement provided in pertinent part as follows: This contract ... shall be binding on the undersigned .... Any controversy arising out of or relating to my account ... shall be settled by arbitration in accordance with the rules then obtaining of ... the American Arbitration Association. . The Antwines appear to at least implicitly argue that Commercial Arbitration Rule 42 embodies the long standing principle that, in the interest of expediency and economy, an arbitration panel need not give reasons underlying an award. On the other hand, the Antwines imply that Securities Arbitration Rule 42, with its requirement that an arbitration panel tender a statement regarding the disposition of statutory claims, is evidence that the American Arbitration Association has relegated the notions of expediency and economy to a position of lesser importance in favor of a more comprehensive development of the reasons underlying an award.
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MILBURN, Circuit Judge. Plaintiff-appellant James Pachla appeals the district court’s award of summary judgment for defendant-appellee Saunders System, Inc., in this Toussaint wrongful discharge diversity action. For the reasons that follow, we affirm in part and reverse in part. I. A. Saunders is a national transportation company engaged in the truck rental and leasing business. Pachla began his employment with Saunders in November 1977 as a service manager at Saunders’ facility in Cincinnati, Ohio. Pachla’s duties as service manager included scheduling preventive maintenance for the vehicle fleets, purchasing materials, supervising employees, controlling inventory, and other general office management. Pachla worked in Cincinnati for approximately eleven months before accepting a transfer to the position of service manager at Saunders’ facility in Taylor, Michigan. In July 1980, Pachla was promoted to district service manager, a position in which he was responsible for three of Saunders’ facilities and had four salaried supervisors reporting to him. Pachla’s promotion resulted from a corporate reorganization which involved the consolidation of branches into larger districts. In October 1982, Saunders again reorganized, with districts being consolidated into larger regions, and Pachla was promoted to regional operations manager for the Michigan region. In October 1984, Saunders restructured its organization by consolidating seventeen regional offices into eleven area offices. As part of this reorganization, the Michigan region, managed by Pachla, was consolidated with the Wisconsin region, managed by John Simmons. In late October 1984, Pachla was informed that John Simmons would be the operations manager for the newly combined Michigan-Wisconsin area. Pachla testified in his deposition that Don Schwanke, Saunders’ Vice-President in charge of operations, informed Pachla that he was being laid off because Simmons had more seniority and had exercised his option to bump Pachla. Pachla was the only regional operations manager laid off as a result of Saunders’ reorganization in October 1984, and although among the other regional managers two had less seniority than Pachla, he was not given the opportunity to bump them. Approximately two weeks after his layoff, Pachla learned that Simmons had been fired by Saunders due to a conflict of interests, and that a lower-level manager who had worked for
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regions, and Pachla was promoted to regional operations manager for the Michigan region. In October 1984, Saunders restructured its organization by consolidating seventeen regional offices into eleven area offices. As part of this reorganization, the Michigan region, managed by Pachla, was consolidated with the Wisconsin region, managed by John Simmons. In late October 1984, Pachla was informed that John Simmons would be the operations manager for the newly combined Michigan-Wisconsin area. Pachla testified in his deposition that Don Schwanke, Saunders’ Vice-President in charge of operations, informed Pachla that he was being laid off because Simmons had more seniority and had exercised his option to bump Pachla. Pachla was the only regional operations manager laid off as a result of Saunders’ reorganization in October 1984, and although among the other regional managers two had less seniority than Pachla, he was not given the opportunity to bump them. Approximately two weeks after his layoff, Pachla learned that Simmons had been fired by Saunders due to a conflict of interests, and that a lower-level manager who had worked for Saunders less than one year had been promoted and transferred to replace Simmons. B. Pachla filed the present action on August 14, 1985, in the Wayne County Circuit Court, and the action was removed to the federal district court on the basis of diversity of citizenship. Pachla’s three-count complaint alleged breach of employment contract, negligent performance of contractual duties, and breach of implied covenant of good faith and fair dealing. On October 31, 1986, Saunders filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, and the court took the motion under advisement pending our en banc decision in Boynton v. TRW, Inc., 858 F.2d 1178 (6th Cir.1988). Pachla responded to the motion for summary judgment by filing a brief with supporting exhibits and his affidavit. Pachla also withdrew counts II and III of his complaint, leaving only the claim for breach of employment contract. Pachla’s breach of employment contract claim involves what is best described as “substantive” and “procedural” issues. The substantive issue is whether Pachla was discharged for just cause. The procedural
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Saunders less than one year had been promoted and transferred to replace Simmons. B. Pachla filed the present action on August 14, 1985, in the Wayne County Circuit Court, and the action was removed to the federal district court on the basis of diversity of citizenship. Pachla’s three-count complaint alleged breach of employment contract, negligent performance of contractual duties, and breach of implied covenant of good faith and fair dealing. On October 31, 1986, Saunders filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, and the court took the motion under advisement pending our en banc decision in Boynton v. TRW, Inc., 858 F.2d 1178 (6th Cir.1988). Pachla responded to the motion for summary judgment by filing a brief with supporting exhibits and his affidavit. Pachla also withdrew counts II and III of his complaint, leaving only the claim for breach of employment contract. Pachla’s breach of employment contract claim involves what is best described as “substantive” and “procedural” issues. The substantive issue is whether Pachla was discharged for just cause. The procedural issue is whether Pachla was discharged in compliance with layoff procedures established by Saunders. On May 5, 1989, the district court issued a Memorandum Opinion and Order granting Saunders’ motion for summary judgment and dismissing Pachla’s complaint. The district court held that our decision in Boynton rendered Pachla’s “employment contract unenforceable in situations of economically mandated reductions in work force.” The district court held “that, as a matter of law, Plaintiff’s discharge for economic reasons, as determined by the discretion of Defendant’s management, constitutes termination for sufficient cause to overcome a breach of employment contract claim.” Noting evidence that Saunders was incurring economic and financial difficulties, the district court concluded that Pachla “failed to make a showing sufficient to establish that [Saunders] was acting in any manner other than a good faith attempt to reorganize based upon economic necessity and circumstance.” The district court also rejected Pachla’s procedural challenge to his discharge, holding that the layoff procedures set forth in the personnel manual did not apply to Pachla because he was an exempt-salaried employee. Moreover, the court
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issue is whether Pachla was discharged in compliance with layoff procedures established by Saunders. On May 5, 1989, the district court issued a Memorandum Opinion and Order granting Saunders’ motion for summary judgment and dismissing Pachla’s complaint. The district court held that our decision in Boynton rendered Pachla’s “employment contract unenforceable in situations of economically mandated reductions in work force.” The district court held “that, as a matter of law, Plaintiff’s discharge for economic reasons, as determined by the discretion of Defendant’s management, constitutes termination for sufficient cause to overcome a breach of employment contract claim.” Noting evidence that Saunders was incurring economic and financial difficulties, the district court concluded that Pachla “failed to make a showing sufficient to establish that [Saunders] was acting in any manner other than a good faith attempt to reorganize based upon economic necessity and circumstance.” The district court also rejected Pachla’s procedural challenge to his discharge, holding that the layoff procedures set forth in the personnel manual did not apply to Pachla because he was an exempt-salaried employee. Moreover, the court held that even if Pachla was covered by the layoff provision, the manual did not address layoffs stemming from a corporate reorganization based upon economic necessity. This timely appeal followed. The principal issue on appeal is whether the district court erred by granting summary judgment for Saunders. II. Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. A district court’s grant of summary judgment is reviewed de novo. Pinney Dock & Transport Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). We must view all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
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held that even if Pachla was covered by the layoff provision, the manual did not address layoffs stemming from a corporate reorganization based upon economic necessity. This timely appeal followed. The principal issue on appeal is whether the district court erred by granting summary judgment for Saunders. II. Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. A district court’s grant of summary judgment is reviewed de novo. Pinney Dock & Transport Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). We must view all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). However, in responding to a summary judgment motion, the nonmoving party cannot rest on its pleadings, but must present some “specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. at 2512. The present action is governed by the Michigan Supreme Court’s ruling in Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980), and its progeny. In Toussaint,
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2552, 91 L.Ed.2d 265 (1986). However, in responding to a summary judgment motion, the nonmoving party cannot rest on its pleadings, but must present some “specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. at 2512. The present action is governed by the Michigan Supreme Court’s ruling in Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980), and its progeny. In Toussaint, the court held that “an employer’s express agreement to terminate only for cause, or statements of company policy and procedure to that effect, can give rise to rights enforceable in contract.” Id. at 610, 292 N.W.2d at 890. The court also held that where a personnel manual “established contractual rights in [plaintiff] to be disciplined and discharged only in accordance with the procedures ... set forth,” a jury question is presented as to whether plaintiff was discharged in compliance with the procedures. Id. at 619, 292 N.W.2d at 895. For purposes of this appeal, Saunders concedes that Pachla had a Toussaint just cause employment con tract. A. The district court granted summary judgment on the substantive issue in this case on the basis of our decision in Boynton v. TRW, Inc., 858 F.2d 1178 (6th Cir. 1988) (en banc), and the cases discussed therein. Pachla contends that Boynton is distinguishable because in that case plaintiff conceded that his layoff was due to adverse economic circumstances, and Pach-la has made no such concession in this case. Rather, Pachla
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the court held that “an employer’s express agreement to terminate only for cause, or statements of company policy and procedure to that effect, can give rise to rights enforceable in contract.” Id. at 610, 292 N.W.2d at 890. The court also held that where a personnel manual “established contractual rights in [plaintiff] to be disciplined and discharged only in accordance with the procedures ... set forth,” a jury question is presented as to whether plaintiff was discharged in compliance with the procedures. Id. at 619, 292 N.W.2d at 895. For purposes of this appeal, Saunders concedes that Pachla had a Toussaint just cause employment con tract. A. The district court granted summary judgment on the substantive issue in this case on the basis of our decision in Boynton v. TRW, Inc., 858 F.2d 1178 (6th Cir. 1988) (en banc), and the cases discussed therein. Pachla contends that Boynton is distinguishable because in that case plaintiff conceded that his layoff was due to adverse economic circumstances, and Pach-la has made no such concession in this case. Rather, Pachla argues that Saunders used the economic necessity defense as a pretext to discharge him without cause. Thus, there is a dispute as to the true reason for Pachla’s discharge. In Toussaint, the court held: Where the employer alleges that the employee was discharged for one reason — excessive tardiness — and the employee presents evidence that he was really discharged for another reason — because he was making too much money in commissions — the question also is one of fact for the jury. The jury is always permitted to determine the employer’s true reason for discharging the employee. Toussaint, 408 Mich. at 622, 292 N.W.2d at 896. Ordinarily, a jury question is presented when there is a dispute as to the “true reason” for discharging an employee. However, to reach the jury, Toussaint requires the employee to present “evidence that he was really discharged for another reason.” Id. (emphasis added). With a motion for summary judgment, the defendant-employer tests whether the employee has presented sufficient evidence to raise a question for the jury. Pachla principally relies upon Ewers
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argues that Saunders used the economic necessity defense as a pretext to discharge him without cause. Thus, there is a dispute as to the true reason for Pachla’s discharge. In Toussaint, the court held: Where the employer alleges that the employee was discharged for one reason — excessive tardiness — and the employee presents evidence that he was really discharged for another reason — because he was making too much money in commissions — the question also is one of fact for the jury. The jury is always permitted to determine the employer’s true reason for discharging the employee. Toussaint, 408 Mich. at 622, 292 N.W.2d at 896. Ordinarily, a jury question is presented when there is a dispute as to the “true reason” for discharging an employee. However, to reach the jury, Toussaint requires the employee to present “evidence that he was really discharged for another reason.” Id. (emphasis added). With a motion for summary judgment, the defendant-employer tests whether the employee has presented sufficient evidence to raise a question for the jury. Pachla principally relies upon Ewers v. Stroh Brewery Co., 178 Mich.App. 371, 443 N.W.2d 504 (1989), in which the court held that “a jury should be permitted to determine whether ‘economic necessity’ was defendant’s true reason for discharging plaintiff.” Id., 443 N.W.2d at 507. Pachla argues that the decision in Ewers precludes granting summary judgment for Saunders because “the ‘question of just cause’ is one of fact for the jury.” Id. The holding in Ewers does not preclude granting summary judgment where there is no genuine issue of material fact. In Ewers, the court held that a jury question on the issue of just cause is created where “the employee presents evidence that the economic necessity was pretextual and that he was discharged for another reason.” Id. (emphasis added). The court concluded “there was substantial evidence produced by plaintiff to rebut defendant’s economic necessity defense sufficient to create a jury question on the legitimacy of the defense.” Id. Thus, the inquiry remains whether Pachla presented sufficient evidence to create a jury question on the legitimacy of Saunders’ economic necessity defense. Saunders’ motion
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v. Stroh Brewery Co., 178 Mich.App. 371, 443 N.W.2d 504 (1989), in which the court held that “a jury should be permitted to determine whether ‘economic necessity’ was defendant’s true reason for discharging plaintiff.” Id., 443 N.W.2d at 507. Pachla argues that the decision in Ewers precludes granting summary judgment for Saunders because “the ‘question of just cause’ is one of fact for the jury.” Id. The holding in Ewers does not preclude granting summary judgment where there is no genuine issue of material fact. In Ewers, the court held that a jury question on the issue of just cause is created where “the employee presents evidence that the economic necessity was pretextual and that he was discharged for another reason.” Id. (emphasis added). The court concluded “there was substantial evidence produced by plaintiff to rebut defendant’s economic necessity defense sufficient to create a jury question on the legitimacy of the defense.” Id. Thus, the inquiry remains whether Pachla presented sufficient evidence to create a jury question on the legitimacy of Saunders’ economic necessity defense. Saunders’ motion for summary judgment was not accompanied by supporting affidavits. However, “a motion for summary judgment may be made pursuant to Rule 56 with or without supporting affidavits.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. “Under Rule 56(c), summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id., 477 U.S. at 322, 106 S.Ct. at 2552. In the present case, answers to interrogatories and depositions on file show that Pachla’s layoff was incident to a nationwide reorganization by Saunders. In response to one of Pachla’s interrogatories, Saunders explained that “Pachla was placed on permanent layoff after the company decided to condense its regional offices into a smaller number of area offices, thereby reducing the number of regional operations managers the company needed.” Defendant’s Response To Plaintiff’s First Set Of Interrogatories at 14. In fact,
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