The district court properly dismissed Janis Carmona's complaint under the Rooker-Feldman doctrine. Janis sought to overturn state court decisions in federal district court, which does not have jurisdiction to review state court judgments. The Rooker-Feldman doctrine bars lower federal courts from reviewing state court decisions. Janis' only recourse was to appeal to the U.S. Supreme Court, which denied her petition for certiorari. The district court correctly determined it lacked subject matter jurisdiction over Janis' complaint seeking to invalidate the state court rulings.
Doc1037 robert oneil paul ballard_todd hickman_seeking approval_settlement & ...malp2009
This document is a Trustee's Motion to Approve Compromise and Settlement with Defendants Robert O'Neal, Paul Ballard and Todd Hickman in an Adversary proceeding. The Trustee is seeking the court's approval of a settlement agreement between the Trustee and the Defendants that would allow portions of the Defendants' claims against the Debtor's estate and resolve all claims between the parties. Key terms of the settlement include allowing 75% of O'Neal's claim, 60% of Ballard's claim, and 60% of Hickman's claim. The Trustee believes the settlement is in the best interest of the estate to avoid costly and uncertain litigation.
Doc962 freeman group motion compromise & settlement_ a walk-awaymalp2009
The Trustee filed a motion seeking court approval of a compromise and settlement agreement between the Trustee and the Freeman Parties. The agreement provides that Robert Freeman and David Ward will withdraw their respective $92,500 proof of claims against the estate with prejudice, and the Trustee will dismiss the Freeman Parties from an adversary proceeding. The agreement achieves a walk-away settlement and full mutual release of claims between the parties. The Trustee believes the settlement is in the best interest of creditors and the estate by avoiding substantial time and costs of litigation, despite believing there are good objections to the proof of claims.
This document is an order from a United States District Court regarding cross-motions for summary judgment in a case involving a plaintiff who was imprisoned at a halfway house operated by the defendant. The court provides background on the case, including that the plaintiff sued over alleged unlawful seizure of his property and constitutional violations. The court evaluates the motions using the standard for summary judgment, granting the defendant's motion and denying the plaintiff's motion.
Conspiracy to Defraud the United States FDAElyssa Durant
The United States appealed a district court's decision to grant a new trial to defendants Suhas Sardesai and Edmund Striefsky. The district court found that, under a recent Supreme Court ruling, it had erred in not allowing the jury to determine the materiality of alleged false statements, an essential element of those charges. While the government argued materiality was not an element, the appellate court affirmed the district court's ruling. It found materiality was incorporated into the language of the indictment and prior circuit precedent had also established it as an element of the relevant statute.
The document is a memorandum analyzing a products liability case. A college football player, Joseph Green, died from heat stroke after practicing in a football helmet and shoulder pads manufactured by Sports Equipment, Inc. Green's mother brought a lawsuit against the company. The memorandum examines the company's motion for summary judgment on several claims. For the failure to warn claim, the court should grant summary judgment because the plaintiff failed to provide sufficient evidence that the lack of warning on the helmet and pads was the proximate cause of Green's death. The court should also grant summary judgment that the risk of heat illness was open and obvious. However, the learned intermediary defense does not apply in this case.
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
SC Opinion and Order - motion for comtemptJRachelle
The court granted in part and denied in part the plaintiff's motion for contempt and sanctions. The court found Susan Brown, the attorney, in contempt for violating a consent order requiring her to turn over all copies of estate property. However, the court did not find Ben Thompson, Brown's former client, in contempt as there was no clear evidence he violated the order. As a sanction, the court ordered Brown to pay the plaintiff's reasonable attorney's fees and costs for bringing the contempt motion, but no other punitive sanctions. The court also ordered Brown and Thompson to turn over any remaining estate property.
This document is a petition for review filed with the Supreme Court of California. It seeks review of two appellate court decisions relating to a legal malpractice judgment and the addition of new judgment debtors. The petition summarizes the underlying litigation and appellate proceedings. It requests that the Supreme Court grant review of both appellate decisions and hold them pending the resolution of a related petition for review in order to prevent the appellate judgments from becoming final before the related issues are decided.
Doc1037 robert oneil paul ballard_todd hickman_seeking approval_settlement & ...malp2009
This document is a Trustee's Motion to Approve Compromise and Settlement with Defendants Robert O'Neal, Paul Ballard and Todd Hickman in an Adversary proceeding. The Trustee is seeking the court's approval of a settlement agreement between the Trustee and the Defendants that would allow portions of the Defendants' claims against the Debtor's estate and resolve all claims between the parties. Key terms of the settlement include allowing 75% of O'Neal's claim, 60% of Ballard's claim, and 60% of Hickman's claim. The Trustee believes the settlement is in the best interest of the estate to avoid costly and uncertain litigation.
Doc962 freeman group motion compromise & settlement_ a walk-awaymalp2009
The Trustee filed a motion seeking court approval of a compromise and settlement agreement between the Trustee and the Freeman Parties. The agreement provides that Robert Freeman and David Ward will withdraw their respective $92,500 proof of claims against the estate with prejudice, and the Trustee will dismiss the Freeman Parties from an adversary proceeding. The agreement achieves a walk-away settlement and full mutual release of claims between the parties. The Trustee believes the settlement is in the best interest of creditors and the estate by avoiding substantial time and costs of litigation, despite believing there are good objections to the proof of claims.
This document is an order from a United States District Court regarding cross-motions for summary judgment in a case involving a plaintiff who was imprisoned at a halfway house operated by the defendant. The court provides background on the case, including that the plaintiff sued over alleged unlawful seizure of his property and constitutional violations. The court evaluates the motions using the standard for summary judgment, granting the defendant's motion and denying the plaintiff's motion.
Conspiracy to Defraud the United States FDAElyssa Durant
The United States appealed a district court's decision to grant a new trial to defendants Suhas Sardesai and Edmund Striefsky. The district court found that, under a recent Supreme Court ruling, it had erred in not allowing the jury to determine the materiality of alleged false statements, an essential element of those charges. While the government argued materiality was not an element, the appellate court affirmed the district court's ruling. It found materiality was incorporated into the language of the indictment and prior circuit precedent had also established it as an element of the relevant statute.
The document is a memorandum analyzing a products liability case. A college football player, Joseph Green, died from heat stroke after practicing in a football helmet and shoulder pads manufactured by Sports Equipment, Inc. Green's mother brought a lawsuit against the company. The memorandum examines the company's motion for summary judgment on several claims. For the failure to warn claim, the court should grant summary judgment because the plaintiff failed to provide sufficient evidence that the lack of warning on the helmet and pads was the proximate cause of Green's death. The court should also grant summary judgment that the risk of heat illness was open and obvious. However, the learned intermediary defense does not apply in this case.
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
SC Opinion and Order - motion for comtemptJRachelle
The court granted in part and denied in part the plaintiff's motion for contempt and sanctions. The court found Susan Brown, the attorney, in contempt for violating a consent order requiring her to turn over all copies of estate property. However, the court did not find Ben Thompson, Brown's former client, in contempt as there was no clear evidence he violated the order. As a sanction, the court ordered Brown to pay the plaintiff's reasonable attorney's fees and costs for bringing the contempt motion, but no other punitive sanctions. The court also ordered Brown and Thompson to turn over any remaining estate property.
This document is a petition for review filed with the Supreme Court of California. It seeks review of two appellate court decisions relating to a legal malpractice judgment and the addition of new judgment debtors. The petition summarizes the underlying litigation and appellate proceedings. It requests that the Supreme Court grant review of both appellate decisions and hold them pending the resolution of a related petition for review in order to prevent the appellate judgments from becoming final before the related issues are decided.
JUDICIAL THREATS OF SANCTIONS - Against Vogel Denise NewsomeVogelDenise
1) Newsome filed a discrimination charge with the EEOC against her former employer CHM. The EEOC dismissed the charge after determining CHM was exempt from religious discrimination claims as a religious organization.
2) Newsome then filed a lawsuit against the EEOC seeking to compel further investigation. The district court dismissed the lawsuit, finding Newsome's claims lacked merit.
3) The appeals court affirmed the dismissal, finding that the EEOC has discretion over the scope of investigations and Newsome had other remedies available through suing her employer directly. Newsome's legal theories did not plausibly allege violations of Title VII, the APA, civil rights statutes, or the constitution.
Par JULIEN G. - Vendredi 12 novembre, dans une décision nationale, la Cour d’Appel fédérale du 5e circuit de la Nouvelle Orléans, a ordonné l’interruption de l’obligation vaccinale, imposée par l’administration Biden, dans le secteur privé. C’est un nouveau revers de taille pour Joe Biden, dont le seul recours possible est maintenant la Cour Suprême des États-Unis (SCOTUS)
Un juge fédéral Texan a interdit lundi au département américain de la Défense de punir un groupe de Navy Seals et d'autres membres des forces spéciales qui ont refusé les vaccins pour des motifs religieux.
Mark swhwartz gets_40k_for_client_vs_peter_mallonihatehassard
This order approves the settlement of a personal injury claim brought on behalf of a minor, Joseph Michael Hernandez. It approves attorney fees of $10,096, reimbursement of medical expenses of $11,279, and a total settlement of $41,667. The remaining $30,291 will be deposited in a blocked account for the minor until he turns 18. The guardian is authorized to sign settlement documents and a full release of claims.
This case involves a dispute over insurance proceeds from an automobile accident settlement. Plaintiff Glenn Cody received $25,000 from the insurer of the at-fault driver, but had over $29,500 in medical expenses. Defendant MILA paid $17,632.18 of Plaintiff's medical expenses and asserts an equitable lien over the settlement funds. Plaintiff disputes the validity of MILA's lien. Plaintiff was also insured by Defendant Farm Bureau, which provided $25,000 in UM coverage, but disputes its applicability. The Court must determine the validity of MILA's lien to then address potential liability of Farm Bureau.
2009 BIOL503 Class 8 Intellectual Property IV Supporting Doc: City of Hope v....Karol Pessin
This document summarizes a Supreme Court of California case between City of Hope National Medical Center and Genentech, Inc. regarding royalties from a 1976 research collaboration agreement. The jury found Genentech breached its fiduciary duty and contract, awarding $300 million in compensatory damages and $200 million in punitive damages. The Supreme Court affirms the compensatory damages but sets aside punitive damages, finding no fiduciary relationship existed. While the contract terms were ambiguous, extrinsic evidence showed the parties did not intend City of Hope's royalty rights to apply to products not using DNA synthesized by City of Hope or to settlement proceeds not involving patent infringement.
Ms. Randolph is appealing her conviction and sentence. She filed an emergency motion for release pending appeal after the district court denied her request. She argues that she meets the criteria for release: (1) she does not pose a risk of flight or danger; and (2) her appeal raises substantial questions that could result in reversal or a new trial. Specifically, she cites issues with the sufficiency of evidence, discovery violations, and errors in the government's billing spreadsheets presented at trial. She requests that the court grant her release pending resolution of her appeal.
This motion seeks to disqualify the law firm Wilson & Varner and attorney Rodney Varner from representing David Nance in litigation against the debtors Introgen Therapeutics, Inc. and Introgen Technical Services, Inc. Varner previously served as general counsel for the debtors from 1993 to 2009. The debtors have filed an adversary proceeding against Nance alleging fraudulent transfers and other claims. Wilson & Varner is now representing Nance in that proceeding and in related bankruptcy matters. The motion argues that Varner's prior representation of the debtors is substantially related to the current matters, and there is a risk that confidential information may be disclosed, in violation of ethical rules regarding conflicts of interest with former clients. The
This document is a petition for review filed with the Supreme Court of California seeking review of two appellate court decisions related to a legal malpractice case. The petitioners (the plaintiff and additional judgment debtors from the underlying case) are asking the Supreme Court to grant review of the present matter and hold it pending the outcome of a related case also pending before the Supreme Court. If the petitioners prevail in the related case, they would be entitled to reversal of the orders in the present matter. Granting review and holding the present matter would prevent those orders from becoming final while the related case is still pending.
Marshall v. BOA USC civil action -- Gen Sherman (1865) Land relief on behalf ...Ken Williams
Marshall (2010) sought land relief on behalf African descendants never received 40 acres of land by Sherman's Special Field Order No. 15 (1865). The court dismissed Marshall's civil action. It opined in (1865) the Order wasn't a contract by Congress. 14th Amend "African-American" citizenship was passed by Congress in 1868. In 1862, whites were granted land welfare when Lincoln signed landmark legislation called The Homestead Act. The act allowed any white age 21 or older to claim a 160 acre parcel of land in the public domain upon little more than an $18 filing fee.
Fall 2010 open memo assignment no doubt v. activision right of publicity cali...Lyn Goering
This document is a court order granting the plaintiff's application to remand a case back to state court from federal court. The plaintiff had filed a complaint against the defendant in state court for claims related to the use of the plaintiff's likeness in a video game. The defendant removed the case to federal court, arguing the claims were preempted by federal copyright law. The court analyzed the relevant legal standards for removal and copyright preemption. Applying a two-part test, the court determined the plaintiff's claims were not preempted as they involved misappropriation of the plaintiff's name and likeness beyond what was agreed to, rather than contesting the defendant's copyright. The court therefore granted the application to remand the case back to
This document is a motion for a stay of the mandate pending a petition for certiorari to the Supreme Court. It was filed by Howard K. Stern on behalf of Vickie Lynn Marshall's estate following the 9th Circuit's denial of rehearing. The motion argues that substantial questions will be presented in the cert petition regarding the scope of bankruptcy courts' power over compulsory counterclaims. It contends the 9th Circuit's new test conflicts with other circuits and Supreme Court precedent. The declaration also asserts the petition raises important issues of bankruptcy practice that require uniformity.
This document is an appellant's opening brief for a case in the California Court of Appeal regarding a trust. Robert Quick (the appellant) alleges that Andrea Pearson (the respondent), as trustee, breached the trust by concealing its existence from him and failing to provide him distributions as a beneficiary. The brief argues that Quick sufficiently alleged facts to state a cause of action and overcome defenses of statute of limitations and laches. It maintains the trial court erred in sustaining Pearson's demurrer without leave to amend.
This document summarizes a court case regarding a dispute over land use jurisdiction between the City of Tontitown, Arkansas and landowners Jay and Connie Potter. The Potters purchased 19 acres outside Tontitown city limits and sought approval to build an RV park. They withdrew their application to Tontitown and received approval from the Washington County Planning Board, but the approval stated it would be void if Tontitown had jurisdiction. Tontitown claimed jurisdiction and sought an injunction to stop construction, arguing it had properly designated its planning area boundaries. The circuit court granted the injunction, finding Tontitown likely to succeed on the merits. The Potters appealed.
WV Supreme Court Decision Disallowing Surface Rights Owners to Appeal Drillin...Marcellus Drilling News
The decision issued Nov 21, 2012 by the West Virginia Supreme Court in case #11-1157 - James Martin, et al. v. Matthew L. Hamblet. The ruling says that surface rights landowners may not appeal permit decisions by the state Dept. of Environmental Protection on the location of drilling pads by mineral rights owners and their representatives (drilling companies). Surface rights owners would like a say in where drilling will happen on their property--and just compensation for the land taken.
The Court of Appeals of North Carolina held that the federal Animal Welfare Act does not preempt a claim brought under North Carolina law alleging animal cruelty at a zoo. The federal law does not expressly preempt state law, implies no intent to exclusively regulate animal welfare nationwide, and does not conflict with the state law. Therefore, the district court had subject matter jurisdiction over the plaintiffs' claims and its dismissal was reversed and remanded.
Knowledge Management-Standard Check In ProcedureSandeep Rangra
The document outlines standards and procedures for check-in at The Ritz Carlton, Bangalore. It details the check-in process that should be completed within 2-4 minutes and involves greeting the guest, confirming their reservation, taking payment information, providing room keys, and escorting them to their room. Changes were introduced to improve guest experience by having materials ready ahead of time and escorting guests directly to their room. Maintaining standards through training and audits benefits the hotel with increased customer satisfaction, retention, and sales.
The document discusses guest checkout procedures for hotels. It describes organizing late charges, retrieving room keys, reviewing guest bills, processing different payment methods including credit cards and cash, obtaining future reservations, transferring guest accounts to back office records, and generating checkout reports. It also covers maintaining guest history records for marketing purposes such as tracking guest demographics, visit patterns, and advertising effectiveness.
JUDICIAL THREATS OF SANCTIONS - Against Vogel Denise NewsomeVogelDenise
1) Newsome filed a discrimination charge with the EEOC against her former employer CHM. The EEOC dismissed the charge after determining CHM was exempt from religious discrimination claims as a religious organization.
2) Newsome then filed a lawsuit against the EEOC seeking to compel further investigation. The district court dismissed the lawsuit, finding Newsome's claims lacked merit.
3) The appeals court affirmed the dismissal, finding that the EEOC has discretion over the scope of investigations and Newsome had other remedies available through suing her employer directly. Newsome's legal theories did not plausibly allege violations of Title VII, the APA, civil rights statutes, or the constitution.
Par JULIEN G. - Vendredi 12 novembre, dans une décision nationale, la Cour d’Appel fédérale du 5e circuit de la Nouvelle Orléans, a ordonné l’interruption de l’obligation vaccinale, imposée par l’administration Biden, dans le secteur privé. C’est un nouveau revers de taille pour Joe Biden, dont le seul recours possible est maintenant la Cour Suprême des États-Unis (SCOTUS)
Un juge fédéral Texan a interdit lundi au département américain de la Défense de punir un groupe de Navy Seals et d'autres membres des forces spéciales qui ont refusé les vaccins pour des motifs religieux.
Mark swhwartz gets_40k_for_client_vs_peter_mallonihatehassard
This order approves the settlement of a personal injury claim brought on behalf of a minor, Joseph Michael Hernandez. It approves attorney fees of $10,096, reimbursement of medical expenses of $11,279, and a total settlement of $41,667. The remaining $30,291 will be deposited in a blocked account for the minor until he turns 18. The guardian is authorized to sign settlement documents and a full release of claims.
This case involves a dispute over insurance proceeds from an automobile accident settlement. Plaintiff Glenn Cody received $25,000 from the insurer of the at-fault driver, but had over $29,500 in medical expenses. Defendant MILA paid $17,632.18 of Plaintiff's medical expenses and asserts an equitable lien over the settlement funds. Plaintiff disputes the validity of MILA's lien. Plaintiff was also insured by Defendant Farm Bureau, which provided $25,000 in UM coverage, but disputes its applicability. The Court must determine the validity of MILA's lien to then address potential liability of Farm Bureau.
2009 BIOL503 Class 8 Intellectual Property IV Supporting Doc: City of Hope v....Karol Pessin
This document summarizes a Supreme Court of California case between City of Hope National Medical Center and Genentech, Inc. regarding royalties from a 1976 research collaboration agreement. The jury found Genentech breached its fiduciary duty and contract, awarding $300 million in compensatory damages and $200 million in punitive damages. The Supreme Court affirms the compensatory damages but sets aside punitive damages, finding no fiduciary relationship existed. While the contract terms were ambiguous, extrinsic evidence showed the parties did not intend City of Hope's royalty rights to apply to products not using DNA synthesized by City of Hope or to settlement proceeds not involving patent infringement.
Ms. Randolph is appealing her conviction and sentence. She filed an emergency motion for release pending appeal after the district court denied her request. She argues that she meets the criteria for release: (1) she does not pose a risk of flight or danger; and (2) her appeal raises substantial questions that could result in reversal or a new trial. Specifically, she cites issues with the sufficiency of evidence, discovery violations, and errors in the government's billing spreadsheets presented at trial. She requests that the court grant her release pending resolution of her appeal.
This motion seeks to disqualify the law firm Wilson & Varner and attorney Rodney Varner from representing David Nance in litigation against the debtors Introgen Therapeutics, Inc. and Introgen Technical Services, Inc. Varner previously served as general counsel for the debtors from 1993 to 2009. The debtors have filed an adversary proceeding against Nance alleging fraudulent transfers and other claims. Wilson & Varner is now representing Nance in that proceeding and in related bankruptcy matters. The motion argues that Varner's prior representation of the debtors is substantially related to the current matters, and there is a risk that confidential information may be disclosed, in violation of ethical rules regarding conflicts of interest with former clients. The
This document is a petition for review filed with the Supreme Court of California seeking review of two appellate court decisions related to a legal malpractice case. The petitioners (the plaintiff and additional judgment debtors from the underlying case) are asking the Supreme Court to grant review of the present matter and hold it pending the outcome of a related case also pending before the Supreme Court. If the petitioners prevail in the related case, they would be entitled to reversal of the orders in the present matter. Granting review and holding the present matter would prevent those orders from becoming final while the related case is still pending.
Marshall v. BOA USC civil action -- Gen Sherman (1865) Land relief on behalf ...Ken Williams
Marshall (2010) sought land relief on behalf African descendants never received 40 acres of land by Sherman's Special Field Order No. 15 (1865). The court dismissed Marshall's civil action. It opined in (1865) the Order wasn't a contract by Congress. 14th Amend "African-American" citizenship was passed by Congress in 1868. In 1862, whites were granted land welfare when Lincoln signed landmark legislation called The Homestead Act. The act allowed any white age 21 or older to claim a 160 acre parcel of land in the public domain upon little more than an $18 filing fee.
Fall 2010 open memo assignment no doubt v. activision right of publicity cali...Lyn Goering
This document is a court order granting the plaintiff's application to remand a case back to state court from federal court. The plaintiff had filed a complaint against the defendant in state court for claims related to the use of the plaintiff's likeness in a video game. The defendant removed the case to federal court, arguing the claims were preempted by federal copyright law. The court analyzed the relevant legal standards for removal and copyright preemption. Applying a two-part test, the court determined the plaintiff's claims were not preempted as they involved misappropriation of the plaintiff's name and likeness beyond what was agreed to, rather than contesting the defendant's copyright. The court therefore granted the application to remand the case back to
This document is a motion for a stay of the mandate pending a petition for certiorari to the Supreme Court. It was filed by Howard K. Stern on behalf of Vickie Lynn Marshall's estate following the 9th Circuit's denial of rehearing. The motion argues that substantial questions will be presented in the cert petition regarding the scope of bankruptcy courts' power over compulsory counterclaims. It contends the 9th Circuit's new test conflicts with other circuits and Supreme Court precedent. The declaration also asserts the petition raises important issues of bankruptcy practice that require uniformity.
This document is an appellant's opening brief for a case in the California Court of Appeal regarding a trust. Robert Quick (the appellant) alleges that Andrea Pearson (the respondent), as trustee, breached the trust by concealing its existence from him and failing to provide him distributions as a beneficiary. The brief argues that Quick sufficiently alleged facts to state a cause of action and overcome defenses of statute of limitations and laches. It maintains the trial court erred in sustaining Pearson's demurrer without leave to amend.
This document summarizes a court case regarding a dispute over land use jurisdiction between the City of Tontitown, Arkansas and landowners Jay and Connie Potter. The Potters purchased 19 acres outside Tontitown city limits and sought approval to build an RV park. They withdrew their application to Tontitown and received approval from the Washington County Planning Board, but the approval stated it would be void if Tontitown had jurisdiction. Tontitown claimed jurisdiction and sought an injunction to stop construction, arguing it had properly designated its planning area boundaries. The circuit court granted the injunction, finding Tontitown likely to succeed on the merits. The Potters appealed.
WV Supreme Court Decision Disallowing Surface Rights Owners to Appeal Drillin...Marcellus Drilling News
The decision issued Nov 21, 2012 by the West Virginia Supreme Court in case #11-1157 - James Martin, et al. v. Matthew L. Hamblet. The ruling says that surface rights landowners may not appeal permit decisions by the state Dept. of Environmental Protection on the location of drilling pads by mineral rights owners and their representatives (drilling companies). Surface rights owners would like a say in where drilling will happen on their property--and just compensation for the land taken.
The Court of Appeals of North Carolina held that the federal Animal Welfare Act does not preempt a claim brought under North Carolina law alleging animal cruelty at a zoo. The federal law does not expressly preempt state law, implies no intent to exclusively regulate animal welfare nationwide, and does not conflict with the state law. Therefore, the district court had subject matter jurisdiction over the plaintiffs' claims and its dismissal was reversed and remanded.
Knowledge Management-Standard Check In ProcedureSandeep Rangra
The document outlines standards and procedures for check-in at The Ritz Carlton, Bangalore. It details the check-in process that should be completed within 2-4 minutes and involves greeting the guest, confirming their reservation, taking payment information, providing room keys, and escorting them to their room. Changes were introduced to improve guest experience by having materials ready ahead of time and escorting guests directly to their room. Maintaining standards through training and audits benefits the hotel with increased customer satisfaction, retention, and sales.
The document discusses guest checkout procedures for hotels. It describes organizing late charges, retrieving room keys, reviewing guest bills, processing different payment methods including credit cards and cash, obtaining future reservations, transferring guest accounts to back office records, and generating checkout reports. It also covers maintaining guest history records for marketing purposes such as tracking guest demographics, visit patterns, and advertising effectiveness.
The document discusses managing human resources for front office managers. It covers topics like internal and external recruiting advantages and disadvantages, the hiring process including job descriptions, interviewing, and orientation. It provides guidance on evaluating applicants, avoiding common interview mistakes, asking open and closed-ended questions in interviews, and training new employees.
The document provides guidance for hotel staff on properly welcoming guests at the Hilton St Helens hotel. It emphasizes that first impressions last only 3-5 seconds and the importance of body language like making eye contact, smiling, and having an upright posture in giving a good first impression. It also discusses the concept of "Hilton Time" which means putting life back into what it takes out through providing a smooth guest experience. Staff are instructed to greet guests respectfully using titles and names when known and focus on making guests feel special through personalized service.
This document discusses human resource issues related to housekeeping. It covers topics like recruiting, selecting, training, motivating and scheduling employees. Recruiting can be internal or external. Selection involves explicitness, objectivity, thoroughness and consistency. Training follows a four-step method of prepare, present, practice and follow up. Scheduling employees requires developing a staffing guide. Motivation techniques include recognition, communication and incentive programs. Discipline follows progressive steps and counseling is preferred over formal measures.
The document discusses various aspects of guest charges, payment, and check-out procedures in hotels. It covers what types of charges can be included on a guest's hotel folio, as well as accounting and payment settlement procedures including the use of payment cards, credit limits, and check-out variations. It also addresses check-out fundamentals and potential challenges that can arise during the check-out process.
The document provides guidance on how to handle difficult situations that may arise when dealing with hotel guests, such as complaints, intoxicated guests, visitors, noisy rooms, and special dietary needs. Key recommendations include listening carefully to complaints, apologizing and taking action to resolve issues, informing managers of problems outside one's control, and accommodating guests' special requests around diet, allergies or noise levels in a polite, considerate manner.
The document discusses the front office audit process in a hotel. It describes the functions of a front office audit as verifying guest transactions, balancing accounts, and generating reports. The front office auditor tracks statistics, summarizes daily transactions, and reconciles account postings. A key part of the audit involves cross-referencing transactions to ensure accuracy. The audit process involves completing postings, verifying rates, balancing department accounts, and preparing cash for deposit and reports. Automated systems now handle much of the audit work.
This document discusses the hotel registration process. It outlines the 7 steps of registration which include preregistration activities, creating a registration record, assigning a guestroom and rate, establishing payment method, verifying identity, issuing keys, and addressing requests. It describes functions of registration records and cards and factors affecting room assignments. Procedures for establishing various payment methods like cash, checks, cards, direct billing and promotions are also outlined.
This document summarizes check-out and account settlement procedures in hotels. It discusses the check-out process, methods of payment settlement including cash, credit cards, and direct billing. It also covers topics like late check-outs, express check-out, self check-out, unpaid balances, and account collection procedures. Finally, it discusses how front office staff can use guest history files to support marketing efforts and the importance of protecting guest data privacy.
The document discusses communications and guest services in hotel front office operations. It covers front office procedures for communicating with guests and handling various requests, including taking telephone messages, maintaining transaction files of guest issues, providing directories with area information, displaying daily schedules and group information on reader boards, and handling mail, packages, faxes and other deliveries for guests. Proper telephone etiquette and use of technologies like voice mail and group broadcast messages are also addressed.
The document discusses planning and evaluating front office operations at hotels. It covers topics like establishing room rates, forecasting occupancy, and using formulas and reports to set budgets and evaluate performance. The Hubbart Formula is described as a bottom-up approach used to determine room rates based on desired profits, taxes, fixed costs, variable expenses, and expected room sales. Front office managers must plan, organize, coordinate, lead, control and evaluate all front office functions to achieve the hotel's objectives.
This document discusses front office accounting fundamentals and processes. It covers topics like creating and maintaining front office accounts, folios, vouchers, points of sale, and ledgers. Specifically, it describes how front office accounts are created for guests and non-guests during check-in and reservations. It also explains how transactions are recorded on folios to track charges and payments. The document highlights how automated systems now integrate these front office accounting functions.
The document discusses reservations processes in the hotel industry. It covers types of reservations like guaranteed reservations involving prepayment, payment cards, or corporate rates. It describes reservation distribution channels like a hotel's own system, central reservation systems, and global distribution systems. It also outlines best practices for reservation agents in taking reservations, confirming details, and generating reports to manage availability.
This document discusses the organization and structure of hotel departments. It explains that hotels organize departments and staff to accomplish their mission through goals, strategies, and tactics. Key hotel departments include the front office, reservations, housekeeping, food and beverage, and support areas like accounting and engineering. The front office oversees guest services and operations. Within the front office are traditional roles like the bell staff who deliver items and assist guests.
The document provides details on front office operations in a hotel, including the various departments and job roles within the front office. It discusses the front office functions of reservation, registration, room assignment, guest services, and more. It describes the typical work shifts for front office employees and outlines the key responsibilities of front office roles like the front desk manager, reservation manager, and front desk agents. The guest cycle of pre-arrival, arrival, occupancy, and departure is also summarized.
How to Handle Guest with Complaints in HotelHotelCluster
The key to running a successful hotel is customer service. A big part of this is addressing customer complaints and ensuring that these complaints are resolved to the customer’s satisfaction. Successful resolution will have a positive effect on the customer, who will be more conducive to returning to the hotel in the future, as the way the complaint was handled and resolved makes the customer feel special and shows him that the hotel is genuinely interested in keeping its customers happy and satisfied.
This document summarizes front office operations in a hotel. It discusses the four stages of the guest cycle: pre-arrival, arrival, occupancy, and departure. It describes front office recordkeeping systems and documents. It also outlines the functions of the front desk and the hotel's telecommunications systems. Finally, it identifies common property management systems used in hotel front offices to support operations.
The document discusses different methods for registering hotel guests upon arrival. It describes the importance of making a positive first impression through courteous greeting. It then outlines the basic registration process of collecting guest information and assigning appropriate rooms. Three common registration methods are described: bound book, loose leaf register, and individual registration cards, with the advantages and disadvantages of each method discussed. Individual registration cards are noted as the most prevalent current system.
Hieleras ruled deprivation of constitutional rightsBryan Johnson
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UNITED STATES' ABUSE OF THE 'SERIAL LITIGATOR' DEFENSEVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
This document has been prepared in support of DEPRIVATION OF JURY TRIAL(S) - i.e. as “For depriving us in many cases, of the benefits of Trial by Jury” – as set forth in the United States of America’s DECLARATION OF INDEPENDENCE. Furthermore, provides a copy of a Court Order FALSELY accusing Newsome of RACIAL and ANTI-SEMITIC SLURS for addressing for what are KNOWN to be Terrorist Acts, War Crimes, Apartheid Practices/Crimes Against Humanity, and other Criminal Acts launched against her by the United States of America’s NAZI’S and/or WHITE Jews/Zionists/Supremacists!
IMPORTANT TO NOTE: Are those WHO played ROLES in the FOUNDING of Israel as the Nazis and/or WHITE Jewish/Zionists/Supremacists Law Firms as Baker Donelson Bearman Caldwell & Berkowitz: https://www.slideshare.net/VogelDenise/baker-donelson-founder-of-state-of-israel
The DENIAL of JURY TRIAL is also a defense that may be used in seeking INTERNATIONAL Judicial Review, INVESTIGATIONS and PROSECUTIONS, etc. – i.e. in taking matter(s) before INTERNATIONAL Tribunals!
Similar to 20060804_Hilton_Hotels_Answering_Brief (20)
UNITED STATES' ABUSE OF THE 'SERIAL LITIGATOR' DEFENSE
20060804_Hilton_Hotels_Answering_Brief
1. UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 06-15938
Janis Carmona, aka Janis Kester,
Plaintiff-Appellant
go
Judy Carmona, Successor Representative of Lupe N. Carmona, deceased; Hilton
Hotels Corporation Retirement Plan,
Defendants-Appellees
Appeal from the United States District Court
District of Nevada, The Honorable Kent J. Dawson
Presiding District Court Case No. CV-S-04-1310-KJD
APPELLEE'S ANSWERING BRIEF
Hilton Hotels Corporation, Retirement Plan
Thomas F. Kummer
Sheri Ann F. Forbes
KUMMER KAEMPFER BONNER RENSHAW & FERRARIO
3800 Howard Hughes Parkway
Seventh Floor
Las Vegas, NV 89169
(702) 792-7000
Attorneys for
Defendant/Appellee
Hilton Hotels Corporation, Retirement Plan
2. III.
IV.
TABLE OF CONTENTS
Jurisdiction 1
Standard of Review 1
Summary of the Argument 3
Argument 3
A. The District Court properly applied the Rooker-Feldman
Doctime 3
1. Janis sought review in U.S. District Court of a state court
decision, not a legal wrong committed by an adverse
party 3
2. State court jurisdiction was not preempted by ERISA 5
3. The constructive trust was not preempted by ERISA 9
4. The courts' findings that Janis waived her survivor
benefits did not give the U.S. District Court jurisdiction
to review the Nevada Supreme Court's decision 10
B. Janis's appeal of the denial of her Motion for Summary
Judgment is not properly before this Court 11
1. Hilton did not breach its fiduciary duties to Janis 12
a. A valid QDRO is exempted from ERISA 12
b. Hilton properly, and in good faith, determined the
QDRO Order meets the requirements under REA 15
e. Hilton is bound by the Nevada Family Court's
QDRO 18
Conclusion 22
Related Cases 22
228817__1 .DOC 11248.2 2
3. TABLE OF AUTHORITIES
Federal Cases
Ablamis v. Roper, 937 F.2d 1450 (9th Cir. 1991) 6, 7, 14
Boggs v. Boggs, 520 U.S. 833 (1997) 5, 6, 7, 9
Coyle v. P.T. Garuda Indonesia, 363 F.3d 979, 984 n.7 (9th Cir. 2004) 2
Gendreau v. Gendreau, 122 F.3d 815,817 (9th Cir. 1997) 13
Hopkins v. AT&T Global Info. Solutions Co., 105 F.3d 153,156 (5th Cir.
1999) 20
Maldonado v. Hams, 370 F.3d 945, 949 (9th Cir. 2004) 1, 2
Mathews v. Chevron Corp., 362 F.3d 1172, 1178 (9th Cir. 2004) 2
Metropolitan Life Ins. Co. v. Marsh, 119 F.3d 415 (6th Cir. 1997) 16, 17
Metropolitan Life Ins. v. Taylor, 481 U.S. 58, 64 (1987) 14
Metropolitan Life Insurance v. Wheaton, 42 F.3d 1080, 1085 (7th Cir. 1994) 17
National Automobile Dealers and Associates Retirement Trust v. Arbeitman,
89 F.3d 496 (8th Cir. 1996) 9, 10, 11
Noel v. Hall, 341 F.3d 1148, 1154 (ith Cir. 2003) passim
Padfield v. AIG Life Insurance Company, 290 F.3d 1121, 1124 (9th Cir.
2002) passim
Patton v. Denver Post Corporation, 179 F. Supp. 2d 1232, 1235 (D. Colo.
2002) 8
Rivers v. Central & Southwest Corp., 186 F.3d 681,683 (Sth Cir. 1999) 20
Stewart v. Thorpe Holdings Company Profit Sharing Plan, 207 F.3d 1143,
1149 (9th Cir. 2000) passim
Trustees of the Directors Guild of America-Producer Pension Benefits Plans
v. Tise, 234 F.3d 415,420 (9th Cir. 2000) passim
State Cases
Baker v. Baker, 251 Cal. Rptr. 126, 127 (1988) 18, 19
Torres v. Torres, 417, 60 P.3d 798, 818, 100 Hawaii 397 (2003) 20
Federal Statutes
1974 U.S.C.C.A.N. 4639 13
29 U.S.C. § 1055(c) 9
29 U.S.C. § 1056((d)(3)(a) 13
29 u.s.c. § 1056(d)(3)(A) 20
29 U.S.C. § 1056(d)(3)(C) 15
29 U.S.C. § 1056(d)(3)(G) 13
29 U.S.C. § 1144(a) 13
29 U.S.C. § 1144(b)(7) 14
P.L. 98-397 15
U.S.C. § 1056(d)(3)(B) 6
228817_1.DOC 11248.2 3
5. I. JURISDICTION
The U.S. District Court did not have subject matter jurisdiction of Appellant
Janis Carmona aka Janis Kester's ("Janis") Complaint and the District Court
properly dismissed Janis's Complaint pursuant to the Rooker-Feldman Doctrine.
See in depth discussion in Section IV(A) infra.
With regard to Janis's appeal of the District Court's dismissal of Janis's
Complaint, Appellee Hilton Hotels Corporation Retirement Plan (Hilton") agrees
generally with Janis's analysis of this Court's jurisdiction to hear Janis's appeal
from the dismissal of her Complaint.
However, Janis also appears to appeal the denial of her Motion for Summary
Judgment, disposed of in the same District Court Order. A denial of a motion for
summary judgment is unappealable, and this Court does not have jurisdiction to
hear Janis's appeal from the denial of her Motion for Summary Judgment. See
Padfield v. AIG Life Insurance Company, 290 F.3d 1121, 1124 (9 th Cir. 2002).
II. STANDARD OF REVIEW
The United States District Court for the District of Nevada dismissed Janis's
Complaint pursuant to the Rooker-Feldman Doctrine. Janis's Excerpt of Record
("Janis's ER") at 165-166. The Rooker-Feldman Doctrine provides that a federal
trial court does not have subject matter jurisdiction to review a final judgment of a
state court. Maldonado v. Harris, 370 F.3d 945,949 (9 th Cir. 2004); Noel v. Hall,
228817_1.DOC 11248.2
6. 341 F.3d 1148, 1154 (ith Cir. 2003). A dismissal of an action based on the
Rooker-Feldman Doctrine is reviewed by this Court de novo. Maldonado, 370
F.3d at 949. Additionally, subject matter jurisdiction is reviewed de novo. See
Coyle v. P.T. Garuda Indonesia, 363 F.3d 979, 984 n.7 (9 th Cir. 2004).
Janis claims in her appeal that the application of EPdSA precludes
application of the Rooker-Feldman Doctrine to dismiss her Complaint. Janis's
Opening Brief at 2-3. The interpretation of ERISA is also reviewed de novo by
this Court. SeeMathews v. Chevron Corp., 362 F.3d 1172, 1178 (9 t• Cir. 2004).
Janis appears to also be appealing from the District Court's denial of her
Motion for Summary Judgment, denied by the same District Court Order as moot.
See Janis's Opening Brief at 3, 20-27; Hilton Hotels Corporation Retirement Plan's
Excerpt of Record ("Hilton's ER") at 1-6; Janis's ER at 161-168. However, the
denial of a motion for summary judgment is unappealable unless it is coupled with
a grant of summary judgment to the opposing party. Padfield v. AIG Life
Insurance Company, 290 F.3d 1121, 1124 (9 th Cir. 2002) (citing Abend v. MCA,
Inc., 863 F.2d 1465, 1482 n.20 (9 th Cir. 1988)). In the present case however, the
District Court denied Janis's Motion for Summary Judgment (Docket #35) as
moot, and also denied Hilton's Countermotion for Summary Judgment (Docket
#41, Hilton's ER at 7-20) as moot, due to the dismissal of Janis's Complaint.
Janis's ER at 168:7-15. Thus, the Motion and Countermotion for Summary
228817_1.DOC 11248.2 2
7. Judgments were never reviewed by the District Court and are not properly before
this Court for review. See Padfield, 290 F.3d at 1124.
III. SUMMARY OF THE ARGUMENT
The District Court properly dismissed Janis's Complaint for lack of subject
matter jurisdiction. The Rooker-Feldman Doctrine precluded the District Court's
review of the Nevada Supreme Court's final decision, and Janis's only recourse, a
petition to the Untied States Supreme Court for certiorari was denied.
Janis's Motion for Summary Judgment was denied as being moot, thus the
issues raised in Janis's Motion are not properly before this Court.
IV. ARGUMENT
Janis appeals from the District Court's Order dismissing her Complaint filed
in case CV-S-04-1310-KJD (RJJ) on the basis that the Rooker-Feldman Doctrine
precluded the District Court from reviewing the Nevada state courts' decisions.
A. The District Court properly applied the Rooker-Feldman Doctrine.
1. Janis sought review in U.S. District Court of a state court decision, not a
legal wrong committed by an adverse party_.
The Rooker-Feldman Doctrine states that a federal district court does not
have subject matter jurisdiction to review a state court final judgment. Noel v.
Hall, 341 F.3d 1148, 1154 (9 th Cir. 2003). Janis's federal Complaint at issue here
followed state court proceedings, initiated by Janis, that adjudicated Janis's and
Judy Carmona's ("Judy") rights to the survivor benefits of Lupe Carmona's
228817_1.DOC 11248.2 3
8. ("Lupe") pension plans. Janis's ER at 18-21, 27-31, 45-52, 75-83. A disappointed
litigant, Janis sought relief from the U.S. District Court by filing a Complaint
alleging that Lupe had "in bad faith" sought and received a constructive trust from
the Nevada family court (Janis's ER at 78 ¶ 20-26); that the Nevada family court
denied Janis's request to toll its orders (Janis's ER at 79 ¶ 27-28); that Janis's
appeal to the Nevada Supreme Court resulted in an Order of Affirmance that
"disregarded" federal law and upheld the constructive trust imposed by the Nevada
family court (Janis's ER at 79 ¶ 30); that despite the Nevada court orders directing
it to do so, Hilton has deposited the survivor benefit funds into the constructive
trust account "in violation of' ERISA (Janis's ER at 80 ¶ 33); and that Judy should
be enjoined from enforcing the Nevada court orders (Janis's ER at 81 ¶ 39-40, 42).
However, despite crafting her allegations to implicate Judy and Hilton as having
COlImaitted a legal wrong against Janis, she is, in reality, seeking to overturn the
Nevada court orders being followed by Judy and Hilton because, she argues, the
Nevada courts lacked jurisdiction. This is not permitted under the Rooker-
Feldman Doctrine.
Janis's proper remedy to review a disappointing state court decision was to
petition the United States Supreme Court for certiorari. Noel, 341 F.3d at 1154.
"The United States Supreme Court is the only federal court with jurisdiction to
hear such an appeal [from the final judgment of a state court]." Id. "A party
228817_1DOC 11248.2 4
9. binding on this Court.
discusses the narrow
amendments.
disappointed by a decision of the highest state court in which a decision may be
had may seek reversal of that decision by appealing to the United States Supreme
Court." Id. at 1155. However, Janis has already attempted the proper review by
the United States Supreme Court, and her petition for certiorari was denied,
effectively exhausting all her remedies. Janis's ER at 80 ¶ 31. Janis's Complaint
was properly dismissed pursuant to the Roolcer-Feldman Doctrine.
2. State court jurisdiction was not preempted by ERISA.
Janis further argues inaccurately that because ERISA preempts state law, the
Rooker-Feldman Doctrine is inapplicable in the present case. Janis's Opening
Brief at 17-18. However, this is a gross misstatement of the case law that is
Janis fails to take into account authoritative case law that
exceptions to ERISA preemption afforded by the REA
The REA was created to amend ERISA to provide the QDRO exception to
ERISA's broad preemption provisions as well as to its anti-assignment provisions.
Stewart v. Thorpe Holdings Company Profit Sharing Plan, 207 F.3d 1143, 1149
(9 th Cir. 2000); Trustees of the Directors Guild of America-Producer Pension
Benefits Plans v. Tise, 234 F.3d 415, 420 (9 th Cir. 2000). In the case ofBoggs v.
Boggs, 520 U.S. 833 (1997), the Court ruled that ERISA preempted state statutes
regarding the ability of a beneficiary who predeceases the plan participant to
228817_1.D0C 11248.2 5
10. bequeath her survivor's benefits under the ERISA plan to her heirs. Id. However,
the Court acknowledged that the amendments to ERISA under REA provide that a
QDRO can alter who is eligible for benefits, where as state law regarding
testamentary assignments of such benefits cannot. Id. at 854. The U.S. Supreme
Court acknowledged that the QDRO is exempt from "ERISA's general pre-
emption clause." Id. at 847. Similarly, in the case ofAblamis v. Roper, 937 F.2d
1450 (9 th Cir. 1991), this Court held that a predeceased spouse of a plan participant
could not, by operation of state
community property interests in
benefits. Ablamis, 937 F.2d 1450.
law, make a testamentary transfer of her
the still living participant's future pension
But as with the U.S. Supreme Court, this Court
recognized the narrow exceptions afforded by QDROs. This Court specifically
stated that "the REA creates an express statutory exception to the prohibition on
assignment and alienation in the case of distribution made pursuant to certain
state court orders..." Id. at 1455 (emphasis added). This Court went on to state,
"Because orders providing for such allocations [meeting the requirements of a
QDRO under 29 U.S.C. § 1056(d)(3)(B)] are not subject to the anti-assignment
provisions, no preemption issue arises as to them. Id.
This Court has specifically held, "The QDRO provision is an exception not
only to ERISA's rule against assignment of plan benefits but also to ERISA's
broad preemption of state law. State family law can, therefore, create enforceable
228817_1.DOC 11248.2 6
11. interests in the proceeds of an ERISA plan, so long as those interests are
articulated in accord with the QDRO provision's requirements." Tise, 234 F.3d
at 420 (emphasis added). This Court went on to state, "Under this scheme, then,
whether an alternative payee has an interest in a participant's pension plan is a
matter decided by a state court according to the state's domestic relations law."
Id. at 421 (emphasis added); see also •4blarnis, 937 F.2d at 1455. Thus, the Nevada
state courts were not preempted by ERISA from issuing and upholding the QDP•Os
obtained by Judy. Janis's only recourse for review of the Nevada state court orders
was to petition the U.S. Supreme Court for certiorari, which she did, and her
petition was denied. Noel, 341 F.3d at 1154; Janis's ER at 80 ¶ 31.
Janis also argues that because Hilton abided by the Nevada family court's
QDRO, which was affirmed by the Nevada Supreme Court, Hilton's actions
created a new federal claim against Hilton. Janis's Opening Brief at 20. However,
as discussed above, a QDRO is an exception to the broad preemption of state law
by ERISA. Boggs, 520 U.S. at 847; Tise, 234 F.3d at 420; •Iblamis, 937 F.2d at
1455. A state court has jurisdiction to issue a QDRO and a plan administrator has
authority to determine if it is qualified under the requirements of ERISA. See Tise,
234 l:.3d at 421. A plan administrator's determination is reviewable by the courts,
but once Janis sought review from the Nevada Supreme Court, her only remedy
228817_1.DOC 11248.2 '7
12. was to petition the U.S. Supreme Court for certiorari, Noel, 341 F.3d at 1154,
which she did, and her petition was denied. Janis's ER at 80 ¶ 31.
Janis further argues that the Rooker-Feldman Doctrine has no application to
the review of QDROs and cites the United States District of Colorado case Patton
v. Denver Post Corporation, 179 F. Supp. 2d 1232, 1235 (D. Colo. 2002), to
support her argument. Janis's Opening Brief at 20-21. However, Janis reads the
holding in this case incorrectly. First, in Patton, the plaintiff sought review of a
plan administrator's determination that a court order was not qualified under
ERISA. Patton, 179 F. Supp. 2d at 1234. The plaintiff sought this review in the
first instance in a U.S. District Court, not the state supreme court as Janis did in the
present case. Id. Second, the Patton court specifically acknowledged that whether
the QDRO was qualified under ERISA was not addressed or decided by the state
court and thus the QDRO was not entitled to full faith and credit on an issue that
was not decided by the state court. /d. at 1235 n.1. Therefore, the Rooker-
Feldman Doctrine was inapplicable because the U.S. District Court was not being
asked to review a final state court order. Id. Therefore, Patton does not support
Janis's argument, and in fact, supports Hilton's argument in the present case that
the U.S. District Court had no subject matter jurisdiction over Janis's Complaint.
Id.
228817_1.DOC 11248.2 8
13. 3. The constructive trust was not preempted by ERISA.
In the same vein, Janis also argues inaccurately that the imposition of a
constructive trust by the Nevada state courts is in conflict with the mandates of
ERISA. Janis's Opening Brief at 17-19. For this proposition, Janis cites Boggs
and the Eighth Circuit Court case of National Automobile Dealers and Associates
Retirement Trust v. Arbeitman, 89 F.3d 496 (8 th Cir. 1996). As discussed above,
Boggs specifically acknowledged that the QDRO was a narrow exception that
could alter who is eligible for benefits under ERISA. Boggs, 520 U.S. at 854.
Thus, having issued a QDRO that was qualified by Hilton, it was within the court's
discretion and jurisdiction to create a constructive trust to receive the funds from
the two plans at issue. Arbeitman also does not support Janis's argument. At issue
was a prenuptial agreement entered into by the defendant and her deceased spouse,
the plan participant, who had been previously married to the plaintiff, wherein the
defendant waived any rights she had to the decedent's separate property
enumerated in the prenuptial agreement. Arbeitman, 89 F.3d at 498. The
decedent's pension plans were not included in the prenuptial agreement. Id.
Because the prenuptial agreement did not meet the specificity requirements of 29
U.S.C. § 1055(c), the Court held the agreement failed to satisfy the waiver
requirements under ERISA. Arbeitman, 89 F.3d at 501. As a result, the Court held
that the plaintiff's request that a constructive trust be imposed would be
228817_1.DOC 11248.2 9
14. inconsistent with the requirements of ERISA "in this case." Id. (emphasis added).
Thus the Arbeitman Court did not state that a constructive trust would never be
consistent with ERISA, but simply that because the underlying agreement did not
qualify as a waiver under ERISA, the imposition of a constructive trust under the
facts of that case would not be consistent with ERISA. Thus, neither case cited by
Janis support her argument, and the Nevada courts' jurisdiction was not preempted
by ERISA.
4. The courts' findings that Janis waived her survivor benefits did not give
the U.S. District Court jurisdiction to review the Nevada Supreme
Court's decision.
Janis next argues that the U.S. District Court erred in holding that the
Nevada Supreme Court held that Janis executed a valid waiver. Janis's Opening
Brief at 18-20. However, Janis's assertion ignores the next paragraph in the
Nevada Supreme Court's Order, where it found that the family court made that
finding. Janis's ER at 50 (wherein the Nevada Supreme Court acknowledged that
the family court found waiver). The Nevada family court's specific finding in its
April 16, 1999 Order stated,
During the settlement conference both parties agreed
Lupe would receive the entirety of his plans upon
payment to Janis of $1,500. At that time, Janis did not
assert that her interest as survivor beneficiary must be
maintained. Accordingly, it is the opinion of the Court
that Janis conceded that Lupe would receive every aspect
of his retirements, just as she received every aspect of
hers.
228817_1.DOC 11248.2 10--
15. Janis's ER at 30 ¶ 16. In accord with the Nevada family court's finding, it issued a
QDRO validly effectuating Janis's waiver of survivor benefits under the Hilton
Plan. Janis's ER at 59-60 ¶ 6. Thus, the U.S. District Court did not err in its
holding.
Janis continues her argument by asserting that the U.S. District Court always
has jurisdiction to determine whether a waiver in a state domestic relations order is
qualified under ERISA. Janis's Opening Brief at 19-20. However, this argument
ignores the fact that the QDRO had already been reviewed and affirmed by the
Nevada Supreme Court, and that the U.S. District Court had no jurisdiction to
review the Nevada Supreme Court's decision, as discussed in Section 2 supra.
Janis's only remedy was to petition the U.S. Supreme Court for certiorari, Noel,
341 F.3d at 1154, which she did, and her petition was denied. Janis's ER at 80 ¶
31.
B. Janis's appeal of the denial of her Motion for Summary Judgment is not
properly before this Court.
As discussed above, Janis appears to be appealing from the District Court's
denial of her Motion for Summary Judgment, denied by the District Court as moot.
See Janis's Opening Brief at 3, 20-27; Hilton's ER at 1-7; Janis's ER at 161-168.
However, as discussed more thoroughly in Section II above, Janis's Motion was
never reviewed by the District Court because it was found to be moot once the
District Court dismissed Janis's Complaint. Janis's ER at 168:8-15. Thus, the
228817_1.DOC 11248.2 --1!
16. issues raised in Janis's Motion for Summary Judgment are not properly before this
Court. See Padfield, 290 F.3d at 1124; Abend, 863 F.2d at 1482 n.20.
However, in the event this Court disagrees with the above analysis, Hilton
advances the following arguments in response to Janis's assertion that Hilton
breached its fiduciary duty.
1. Hilton did not breach its fiduciary duties to Janis.
Hilton has continually maintained the same position. Until a valid QDRO
was entered, Hilton, as the plan administrator, could not change the beneficiary
under the retirement plan, despite Lupe's requests. In this case, after six years of
litigation over this matter, a valid QDRO was entered. Janis's ER at 58-61. Hilton
simply followed the court's order by dispersing the funds into the constructive trust
set up for the benefit of Judy. Hilton has not breached its fiduciary duties because
(A) a valid QDRO is exempted from ERISA; (B) Hilton believes the April 2, 2004
Family Court Order constitutes a valid QDRO; and (C) Hilton believes that it is
bound by the April 2, 2004 QDRO.
a. A valid QDRO is exempted from ERISA.
Congress passed ERISA in order to establish a comprehensive federal
scheme for the protection of pension plan participants and their beneficiaries.
Stewart, 207 F.3d at 1148. According to the drafters, ERISA was enacted to
"assure American workers that they may look forward with anticipation to a
228817_1.DOC 11248.2 12--
17. retirement with financial security and dignity, without fear that this period will be
lacking in the necessities to sustain them as human beings within our society." Id.
(quoting S. Rep. No. 93-127 (1974) reprinted in 1974 U.S.C.C.A.N. 4639, 4849).
In order for this aim to be met, Congress required all plans falling under ERISA to
include anti-assignment provisions. Id. Additionally, "ERISA's preemption
provision specifically provides that ERISA supercedes any state law regarding
employee benefit plans." Id. at 1149 (citing 29 U.S.C. § 1144(a)).
After the enactment of ERISA, Congress created the Retirement Equity Act
of 1984 ("REA") because of confusion among the different states concerning
domestic orders and the anti-alienation provisions of ERISA. REA amended
ERISA by creating an exception to its anti-assignment provisions for state
domestic relations orders that meet the requirements of a QDRO. 29 U.S.C. §
1056((d)(3)(a).
"The QDRO exception was enacted to protect the financial security of
divorcees." Gendreau v. Gendreau, 122 F.3d 815, 817 (9th Cir. 1997). The
QDRO exception was also enacted to reduce the expense to plan providers and
protect them from suits for making improper payments. Id. As a result, Congress
requires that QDROs be specific and clear and give plan administrators
independent discretion to approve the QDRO before they would be required to act
in accordance with it. 29 U.S.C. § 1056(d)(3)(G); see also Stewart, 207 F.3d. at
228817_1.DOC 11248.2 13--
18. 1149 ("the purpose of the specificity requirements is to reduce the expense of
ERISA plans by sparing plan administrators the grief they experience when
because of uncertainty concerning the identity of the beneficiary they pay the
wrong person, or arguably the wrong person, and are sued by a rival claimant.").
As a result of QDRO's exemption from EPdSA, a federal court does not
have subject matter jurisdiction to hear disputes concerning a valid QDRO. In
Flaherty v. Flaherty, the federal district court of Massachusetts examined a motion
to remand. Flaherty v. Flaherty, 1992 WL 201103. The defendants' removal was
"based upon the preemptive effect of [ERISA], which generally makes a suit for
benefits under a plan subject to ERISA a federal question." Id. "However, ERISA
specifically exempts disputes involving qualified domestic relations orders from its
preemption provision." Id. (citing 28 or 29 U.S.C. § 1144(b)(7)). After reviewing
the QDRO, the court found that "[t]his case arises out of a divorce agreement
which meets the criteria for a qualified domestic relations order." /d. (citing 29
U.S.C. § 1056(d)(3)(B)(i)). Accordingly, the court held that "[s]ince the action is
not preempted by ERISA, the case must be remanded to the state court." Id.
(citing Metropolitan Life Ins. v. Taylor, 481 U.S. 58, 64 (1987)); see also Tise, 234
F.3d at 420; Ablamis, 937 F.2d at 1455.
Here, the order from the Family Court is a QDRO ordering Hilton to pay
Judy Carmona the benefits her deceased husband, Lupe Carmona, accrued under a
228817_1.DOC 11248.2 ]4--
19. pension plan while he worked for Hilton. Janis's ER at 58-61. Specifically, the
court order provides that "[i]t is intended that this Order shall qualify as a
Qualified Domestic Relations Order under the Retirement Equity Act of 1984, P.L.
98-397." /d. Thus, the Hilton Plan Administrator is required to determine if the
April 2, 2004 QDRO is valid. Tise, 234 F.3d at 421. If the QDRO is valid, the
Hilton Plan Administrator must comply with the court order.
b. Hilton properly, and in good faith, determined the QDRO
Order meets the requirements under REA.
To qualify under the statute, a marital dissolution order must meet four
specific requirements: (1) the name and the last known mailing address (if any) of
the participant and the name and mailing address of each alternate payee covered
by the order; (2) the amount or percentage of the participant's benefits to be paid
by the plan to each such alternate payee, or the manner in which such amount or
percentage is to-be determined; (3) the number of payments or period to which
such order applies; and (4) each plan to which such order applies. 29 U.S.C. §
1056(d)(3)(C).
Here, the court order meets the first requirement of § 1056(d)(3)(c) since the
address of the participant and alternate payee is given in the order. According to
the court order, "The Participant and Alternate Payee Judy Carmona designated the
following attorney as representative for receipt of copies of notices pertaining to
228817_1.DOC 11248.2 15
20. this Order: Law Office of Marshal S. Willick, P.C., 3551 E. Bonanza Road, Suite
101, Las Vegas Nevada, 89110-2198." Janis's ER at 58-61.
Like the first requirement, the court order meets the second and third
requirements of § 1056(d)(3)(c); this is true, even though the specific amount or
percentage of the participant's benefits to be paid to the alternate payee and the
number of payments or period to which the order applies is not specifically given
in the order. When deciding whether a purported QDRO satisfies the requirements
of REA, courts often liberally construe the requirements. Stewart, 207 F.3d at
1151. "As long as a formula within a plan can be clearly and easily followed,
courts have not hesitated to find ERISA's specificity requirements satisfied despite
the fact that the decree calls for some modicum of interpretation." Id. at 1153 n.7
(citing Williams, 50 F. Supp. 2d at 960). "The default position for an administrator
with regard to such interpretation would be to follow ERISA and the plan's
mandates." /d.
In Stewart, the QDRO also "did not provide for periodic payments of
benefits." 207 F.3d at 1152. Notwithstanding this deficiency, the order was valid
because it "contain[ed] the information specified in the statute that a plan
administrator would need to make an informed decision." Id. at 1154. In
Metropolitan Life Ins. Co. v. Marsh, 119 F.3d 415 (6 th Cir. 1997), a case cited with
approval by the Ninth Circuit in Stewart, the Sixth Circuit held that a QDRO,
228817_1.DOC 11248.2 16--
21. which simply stated that the participant's two children were to receive two-third's
of the participant's ERISA benefits, "substantially complied with ERISA's
requirements." Marsh, 119 F.3d at 422. According to the Marsh court, the QDRO
was valid because it lacked "no essential information." Id. Along these lines, the
Seventh Circuit observed,
It is asking too much of domestic relations lawyers and judges to
expect them to dot every i and cross every t in formulating divorce
decrees that have ERISA implications. Ideally, every domestic
relations lawyer should be conversant with ERISA, but it is unrealistic
to expect all of them to be. We do not think Congress meant to ask
the impossible, not the literally, but the humanly, impossible, or to
make a suit for legal malpractice the sole recourse of an ERISA
beneficiary harmed by a lawyer's failure to navigate the treacherous
shoals with which the modem state-federal law of employee benefits
abounds.
Metropolitan Life Insurance v. Wheaton, 42 F.3d 1080, 1085 (7th Cir.
1994); see also Stewart, 207 F.3d at 1154 n.8 (quoting Marsh). Here, the
QDRO order provides, "Any periodic benefits of the Participant's pension
now being paid or that might be paid to Janis Carmona a/k/a Janis Kester,
are to be paid to Alternate Payee Judy Carmona, the Participant's surviving
spouse (widow), whether or not Judy is designated as the beneficiary of
those benefits." Janis's ER at 58-61. Although the order does not give the
amount or the percentage or the number of payments or period to which the
order applies, the QDRO clearly orders the plan administrator to substitute
Judy for Janis. Further, the Hilton Plan provides for the percentage amount
228817_1.D0C 11248.2 17--
22. and the number of payments. Therefore, like Stewart, notwithstanding these
deficiencies, all the relevant information is provided for the plan
administrator to make an informed decision. See Stewart, 207 F.3d 1143.
Finally, the court order also meets the fourth requirement. According to the
QDRO, the "Plan to which this Order applies is stated in item 2 hereof, as it now
exists or may from time to time be amended,, or any successor plan thereto."
Janis's ER at 58-61. Item 2 of the QDRO references Lupe's interest in the Hilton
Plan. Janis's ER at 58-61. Thus, Hilton properly determined all the requirements
are satisfied and the April 2, 2004 court order constituted a valid QDRO under
ERISA. See Stewart, 207 F.3d 1143.
c. Hilton is bound by the Nevada Family Court's QDRO.
Based on the fact that a valid QDRO was entered, Hilton did not breach its
fiduciary duty to Janis by properly paying Lupe's Hilton Plan benefits into the
constructive trust, pursuant to the Family Court order. See Janis's ER at 58-61. In
accord with Boggs, Tise and Ablamis, discussed in Section IV(A)(2) supra, a
California court reached a determination that federal law does not preempt state
court action dividing marital interests in employee benefit plans, nor does it require
that an action to enforce a state order dividing such benefits be brought in federal
court. Baker v. Baker, 251 Cal. Rptr. 126, 127 (1988). Further, the court
concluded that "Congress has clearly declared its intent that state courts in a
228817_1.DOC 11248.2 18
23. martial dissolution action can issue an order which, if a QDRO, is binding upon the
plan administrator, even though the plan is not a party to the action in which the
order is issued." Id. at 133. Therefore, "the federal statutory scheme binds the
plan to distribute benefits pursuant to a state court order which is a QDRO, even
though the plan is not a party to the dissolution action." Id.
In the instant case, Hilton, similar to Baker, was not a party to the preceding
litigation between Lupe and Janis. However, on April 2, 2004, the Family Court
issued an order directing Hilton to remove Janis as an Alternate Payee and "replace
her" with Judy. Janis's ER at 58-61. Because the QDRO was served on the Hilton
Plan, Hilton simply followed the court's instruction.
Hilton recognizes that IATSE and Janis believe the April 2, 2004 QDRO
was not valid. Janis argues that the QDRO exception was enacted to protect only
an ex-spouse. See Janis's Opening Brief at 22-24 Based on this reasoning, Janis
contends that since Judy is not an ex-spouse, rather a widow, the QDRO provisions
of § 1056 have no application to Judy. Id.. However, Janis' interpretation of §
1056 is inaccurate. In fact, § 1056(d)(3)(K) provides that an alternative payee
under a QDRO means "any spouse, former spouse, child, or other dependent of a
participant who is recognized by a domestic relations order as having a right to
receive all, or a portion of, the benefits payable under a plan with respect to such
participant." Judy is the surviving spouse of Lupe. As § 1056 clearly indicates
228817_1.DOC 11248.2 19--
24. "any spouse" can be named an alternative payee under a valid QDRO. In this case
a valid QDRO was entered, whereby it named Judy, Lupe's surviving spouse, as
the named beneficiary.
Similarly, IATSE argues that pension benefits irrevocably vest on the date of
the participant's retirement. See IATSE's Answering Brief at 12 in Appeal No. 06-
15581 (citing Rivers v. Central & Southwest Corp., 186 F.3d 681, 683 (5 th Cir.
1999), and Hopkins v. AT&T Global Info. Solutions Co., 105 F.3d 153, 156 (5 th
Cir. 1999)). Resting on this decision, IATSE argues that Janis was married to
Lupe on the date of his retirement and therefore Lupe's pension plans irrevocably
vested in Janis on the date of his retirement.
However, both IASTE and Janis fail to recognize the thorough, persuasive
discussion and analysis in Torres v. Torres, 417, 60 P.3d 798, 818, 100 Hawaii 397
(2003), which the Nevada Supreme Court correctly analyzed and on which it based
its decision. In Torres, the court concluded that nothing in the structure of ERISA
supports the claim that survivor benefits "vest" at the participant's retirement.
Torres, 60 P.3d at 818, 100 Hawaii at 417. Rather, state courts have jurisdiction
under ERISA to divide martial interests in employee benefit plans in dissolution
actions. In fact, 29 U.S.C. § 1056(d)(3)(A) provides that a "pension plan shall
provide for the payment of benefits in accordance with the applicable requirements
of any qualified domestic relations orders." As outlined above, the Family Court
228817_1.DOC 11248.2 20--
25. determined that Lupe's Hilton Plan is separate property. Thereafter, the Family
Court entered a valid QDt•O.
Moreover, Tise specifically held that "there is no conceptual reason why a
QDRO must be obtained before the plan participant's benefits become payable on
account of his retirement or death." Tise, 234 F.3d at 421. As this Court pointed
out in Tise, several provisions of the ERISA Statute confirm no such requirement.
Id.
Thus, although the Tise Court left the determination of whether a QDRO
issued after a participant's retirement may affect survivor benefits, Tortes provides
strong arguments that this Court should so rule. See Tortes, 630 P.3d at 818, 100
Hawaii at 417.
Furthermore, as argued in Section II supra, this Court need not make that
determination in this appeal as this issue is not properly before this Court. See
Padfield, 290 F.3d at 1124.
///
///
///
///
///
///
228817_1.DOC 11248.2 21
26. V. CONCLUSION
For the foregoing reasons, Appellee Hilton respectfully requests that this
Court affirm the U.S. District Court's dismissal of Appellant Janis's Complaint.
VI. RELATED CASES
This appeal is related to Appeal No. 06-15581. Both appeals arise out of the
same facts and circumstances and the same court actions below.
KUMMER KAEMPFER BONNER RENSHAW & FERRARIO
By:
T•HOMAS F. KUMI•IER
Nevada Bar No. 1200
SHERI ANN F. FORBES
Nevada Bar No. 7337
3800 Howard Hughes Parkway
Seventh Floor
Las Vegas, Nevada 89169
Attorneys for Defendant/Appellees
HILTON HOTELS CORPORATION RETIREMENT PLAN
228817_1,DOC 11248.2 22--
27. CERTIFICATE OF SERVI•(
The undersigned hereby certifies that on the
_• day of August, 2006, I
mailed a true and correct copy of the foregoing APPELLEE'S ANSWERING
BRIEF, in a sealed envelope, to the following with postage fully prepaid thereon:
William E. Freedman
411 S. Sixth St.
Las Vegas, NV 89101-6915
Attorneys for Plaintiff
Marshal S. Willick
Willick Law Group
3551 E. Bonanza Rd., Suite 101
Las Vegas, NV 89110-2198
Attorneys for Defendant Judy Carmona
as Successor Representative of Lupe N.
Carmona, Deceased
Adam P. Segal
Schreck Brignone
300 S. Fourth St., Suite 1200
Las Vegas, NV 89101
Attorneys for Defendant Nevada Resort
Association International Alliance of
Theatrical and Stage Employees Local
720 Pension Trust (I.A.T.S.E.)
An Employee of Kummer Kaempfer
Bonner Renshaw & Ferrario
228817_I.DOC 11248.2
23