2)  SURETIES / BONDS / TAXATION:  Island Ins. Co. v. Hawaiian Foliage, 00-16874 (9th Cir. May 3, 2002).  Under the plain language of the contracts at issue, the state and federal governments were designated as intended beneficiaries, for the purpose of securing the payment of taxes due, of a surety bond that insured a subcontractor's performance where the bond incorporated the subcontract, which covered the subcontractor's tax obligations;  dissenting, Judge O'Scannlain thought the purpose and language of the bond nowhere evinced an intent that the insurer be held liable for a subcontractor's unpaid taxes;  he thought it would have made little sense for the parties to enter into the agreement described by the majority.  Thompson, O'Scannlain (dissenting) and Berzon (author), Circuit Judges.  J. Dudeck of Washington, DEC, for the defendants;  M. Tanoue of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  TAXATION:  Liti v. CIR,01-71259 (9th Cir. May 8, 2002).  Joining the Seventh and Eighth Circuits, the USCA held that a lower court must make findings in support of a determination to either grant or deny an IRC Sec. 7430 motion for litigation costs and a Sec. 6673 motion for sanctions.  Reinhardt and Graber, Circuit Judges, and Hunt (author), District Judge.  A. Taylor of Santa Ana, CA, for the petitioners-appellants;  J. McElvain of Washington, DC, for the respondent-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  TAX FRAUD:  USA v. Bishop, 01-50195 (9th Cir. May 30, 2002).  In an tax evasion case, a defendant asserting a good faith reliance on the advice of a tax professional defense must have made full disclosure of all relevant information to that professional.  Goodwin (author), Pregerson and Trott, Circuit Judges. G. McFadden of San Diego, CA, for the defendant;  R. Lindsay of Washington, DC, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  TRADEMARKS:  Barcamerica Trust v. Tyfield Importers, 01-15973 (9th Cir. May 6, 2002).  A wine trademark owner's occasional, informal tasting of the wine and reliance on the reputation of a deceased "world-famous winemaker," did not constitute an exercise of quality control over a licensee sufficient to defeat a finding that the owner had abandoned its mark through uncontrolled licensing;  the owner had engaged in "naked" licensing of its mark and thus had forfeited its rights in the mark.  O'Scannlain (author) and Tallman, Circuit Judges, and King, District Judge.  J. Sutton of San Francisco, CA, of the plaintiff;  J. Rabinowitz of New York, NY, and T. Blizzard of Sacramento, CA, for the defendants;  J. Harrison of Sacramento, CA, for the third-party-defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  ENVIRONMENTAL LAW:  Pronsolino v. Nastri, 00-16026 (9th Cir. May 31, 2002).  Under Sec. 303(d) of the Clean Water Act, the phrase "are not stringent enough" triggers the identification requirement both for waters as to which effluent limitations apply but do not suffice to attain water quality standards and waters as to which effluent limitations do not apply at all to the pollution sources impairing the water.  Hall, Wardlaw, and Berzon (author), Circuit Judges.  R. Eggert of Chicago, IL, for the plaintiffs-appellants;  S. Donahue of Washington, DC, for the plaintiffs-intervenors-appellants;  J. Brecher of Oakland, CA, for the defendants-intervenors-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  INTELLECTUAL PROPERTY:  Cavalier v. Random House, Inc., 00-56192 (9th Cir. May 21, 2002).  A story's general premise of a child, invited by a moontype character, who takes a journey through the night sky and returns safely to bed to fall asleep, is a basic plot idea that is not protected by copyright law;  the USCA thus affirmed the district court's summary judgment for the defendants on the issue of substantial similarity as to the literary works as a whole;  however, the USCA reversed the summary judgment against the plaintiffs' copyright claim with respect to a "moon night light" cover and a "relaxing stars on clouds" illustration.  Ferguson, T.G. Nelson, and W. Fletcher (author), Circuit Judges.  M. Silas of Encino, CA, for the plaintiffs-appellants;  S. Contopulos of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

 8)  PROBATE / TRUSTS:  Nickel v. Bank of America National Trust, 01-15452 (9th Cir. May 17, 2002).  Under California law, the remedy for breach of trust by a bank acting as a professional trustee is a proportionate share of the profits the bank made with the misappropriate trust funds;  dissenting, Judge Fernandez thought that the district court opinion was essentially correct and adopted it as his own, with one caveat: that is, as he read that opinion, the district court determined that in most instances the appropriate remedy for taking an excess fee should be repayment of that fee with simply interest; however, there may be times when it is proper to use a dif-ferent measure; because of the lack of tracing, the small amount of the fees in the whole picture, and the excessively speculative an inappropriate nature of the alternate solutions propounded by Nickel, this is not one of those times;  thus the wisdom of the usual approach is apparent, Judge Fernandez thought, and the proper remedy remains reimbursement plus simple interest.  Judge Reinhardt, Noonan (author), and Fernandez (dissenting), Circuit Judges.  J. Falk of San Francisco, CA, for the plaintiff;  J. Fetsch of San Francisco, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  INSURANCE:  Carrington Estate Planning Services v. Weisman Family Trust, 00-17491 (9th Cir. May 6, 2002).  The "notice-prejudice" rule applicable to insurance policies under Rhode Island and Arizona law applied to a "notice of disability" requirement for extension of benefits under a life insurance contract's "waiver of premium" provision.  Reinhardt, Magill, and Fisher (author), Circuit Judges.  R. Waugh of Phoenix, AZ, for the plaintiff;  M. Flory of San Diego, CA, and D. Davis of Phoenix, AZ, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  INSURANCE / MILLER ACT:  U.S. for the Use and Benefit of Walton Technology v. Weststar Engineering, 99-35311 (9th Cir. May 22, 2002).  A subcontractor's right of recovery on a Miller Act payment bond accrues 90 days after the subcontractor has completed its work, not "when and if" the prime contractor is paid by the government;  dissenting in part, Judge Trott thought that the defendants were not liable to plaintiff Walton for the disputed sum, because Walton expressly agreed for good and sufficient consideration in a written and signed settlement and release agreement.  Thompson, Trott (dissenting in part), and Paez (author), Circuit Judges.  A. Bornstin of Seattle, WA, for the plaintiffs;  R. Zajac of San Diego, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  INSURANCE:  Amadeo v. Principal Mutual Life Ins. Co., 00-55333 (9th Cir. May 22, 2002).  When an insured has a 20-year history of steady employment in the securities industry, followed by a two-year period of unemployment during which time she applies for benefits under a disability policy, the insurer's interpretation that the insured's "regular occupation" was "unemployment" prior to her disability constituted an unreasonable interpretation;  dissenting, Judge Fernandez thought it apparent that the denial of benefits was based upon a genuine dispute over whether the insured was legally entitled to them; she did not even apply for them until more than two years after she had stopped working; thus it could not be said that the insurer's refusal to pay was unreasonable;  the evidence thus demonstrated that the insurer did not breach the covenant of good faith, and could not be liable for punitive damages.  Browning, Fernandez (dissenting), and Fisher (author), Circuit Judges.  S. Jacobs of Los Angeles, CA, for the plaintiff;  M. Levy of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  INSURANCE: Rubin v. State Farm Mutual Automobile Ins. Co., 98-16961 (9th Cir. May 28, 2002).  Under Nevada law, a provision in an auto insurance policy excluding coverage for medical expenses resulting from bodily injury for which workers' compensation is payable does not apply to medical expenses initially paid by workers' compensation but ultimately reimbursed from the insured's third-party recovery.  Hug (author), D.W. Nelson, and McKeown, Circuit Judges.  A. Sgro of Las Vegas, NV, for the plaintiff;  D. Gass of Phoenix, AZ, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  DEBT COLLECTION PRACTICES ACT:  Renick v. Dun & Bradstreet Receivable Management Services, 01-15117 (9th Cir. May 16, 2002).  The 30-day validation of debts provision of the Federal Debt Collection Practices Act, 15 USC Sec. 1692g(a), was not violated by a notice requesting payment "today" and "prompt" payment, where these requests were in the same font as surrounding text and not otherwise emphasized;  the notice was also a request rather than a demand, carried no sense of urgency, included a statement informing the debtor that he had 30 days to challenge the debt's validity, and was not confusing about whom to contact for information as to the debt's validity.  Wallace, Kozinski, and Paez, Circuit Judges.  Per Curiam.  O. Bragg of Chicago, IL, for the plaintiff;  J. Feeney of San Francisco, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  BANKRUPTCY:  In re McGhan,99-56956 (9th Cir. May 7, 2002).  State courts lack jurisdiction to determine whether a listed and scheduled creditor has received adequate notice of discharge proceedings;  they also lack authority to modify a bankruptcy discharge order.  McKeown and Fisher (author), Circuit Judges, and Hagen, District Judge.  J. Tobin of San Bernardino, CA, for the debtor;  W. Light of Riverside, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  BANKRUPTCY:  In re Hamada,00-56865 (9th Cir. May 29, 2002).  Under the circumstances of this case no right of subrogation existed with respect to the issuer of a standby letter of credit; thus, the issuer was not eligible under the Bankruptcy Code for statutory subrogation;  dissenting, Judge Armstrong thought that the majority's ruling could chill access to the courts as banks must now assume greater risk in issuing standby letters of credit;  this, in turn, could make it more difficult for litigants to secure the requisite bond to pursue appeals.  Thomas (author) and Rawlinson, Circuit Judges, and Armstrong (dissenting), District Judge.  J. Tobin of San Bernardino, CA, for the debtor;  W. Light of Riverside, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  BANKRUPTCY:  In re Su, 01-55656 (9th Cir. May 20, 2002).  Under 11 USC Sec. 523(a)(6), a "willful and malicious injury" finding requires that the debtor has a subjective motive to inflict injury or believes that injury is substantially certain to result from his conduct.  Beezer, Tashima (author), and Graber, Circuit Judges. J. Marks of San Francisco, CA, for the appellant;  S. Zlotoff of San Jose, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  BANKRUPTCY:  In re Smith, 00-36014 (9th Cir. May 16, 2002).  Joining other circuits that have considered the issue, the USCA affirmed the Bankruptcy Appellate Panel's denial of Smith's claim actual damages as a result of a creditor's violation of the Truth in Lending Act (TILA);  to receive actual damages for a TILA violation (i.e., "an amount awarded to a complainant to compensate for a proven injury or loss," the borrower must establish detrimental reliance on the financing terms offered by the creditor;  here, without any evidence in the record to show that the debtor would either have secured a better interest rate elsewhere, or foregone the loan completely, her argument failed.  B. Fletcher, O'Scannlain, and Berzon, Circuit Judges. Per Curiam.  H. Lichtig of Port Orford, OR, for the appellant; G. Smith pro se. (Download the full text of this decision at www.cc9.uscourts.gov/)[See Memo Decision #6]

18)  ERISA:  Padfield v. AIG Life Ins. Co., 00-57054 (9th Cir. May 17, 2002).  Benefits for death by autoerotic asphyxiation under an accidental injury and death insurance policy governed by ERISA are not precluded by exclusions for death resulting from suicide or intentionally self-inflicted injury; dissenting in part, Judge Leavy, while agreeing that the plaintiff's death did not result from suicide, thought that as a matter of law his autoerotic act of tying a necktie around his neck with the intent to restrict the flow of oxygen to his brain was an intentionally self-inflicted injury which resulted in his death, coverage for which was excluded by the policy.  Leavy (dissenting in part), T.G. Nelson and W. Fletcher (author), Circuit Judges.  C. Fleishman of Beverly Hills, CA, for the plaintiff;  H. Cotton of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  EMPLOYMENT DISCRIMINATION:  Paige v. California, 01-55312 (9th Cir. May 31, 2002).  In an action under 42 USC Sec. 1983 alleging that the California's Highway Patrol's promotional process violates Title VII of the Civil Rights Act, an "internal" pool of applicants is the proper comparative group for use in determining whether parts of the promotional process have a disparate impact on non-white officers.  Reinhardt (author), Kozinski, and Hawkins, Circuit Judges.  J. Cohn of Washington, DC, for the defendants;  D. Bahan of Pasadena, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  ERISA:  Funkhouser v. Wells Fargo Bank, N.A., 00-35397 (9th Cir. May 15, 2002).  A federal court may rule on ERISA pre-emption of a state law claim when it ultimately declines to exercise supplemental jurisdiction.  B. Fletcher, O'Scannlain (author), and Berzon, Circuit Judges.  W. Guas of San Francisco, CA, for the defendants-appellants;  J. Crowell of Portland, OR, for the plaintiffs-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  WORKERS COMPENSATION:  Sestich v. Long Beach Container Terminal, 00-70978 (9th Cir. May 20, 2002).  In deterining disability benefits under the Longshore and Harbor Workers' Compensation Act, the petitioner's "wage-earning capacity" are equal to his actual post-injury "average weekly wages," and he is entitled to two-thirds of the difference between his "wage-earning capacity" and his pre-injury "average weekly wages."  Leavy, T.G. Nelson, and W. Fletcher (author), Circuit Judges.  R. Nizich of  San Pedro, CA, for the petitioner;  W. Brooks of Long Beach, CA, and C. DeDeo of Washington, DC, for the respondents.(Download the full text of this decision at www.cc9.uscourts.gov/)

22)  TORTS:  Orsay v. Dept. of Justice, 00-16860 (9th Cir. May 14, 2002).  The Federal Tort Claims Act's intentional tort exception to sovereign immunity, 28 USC Sec. 2680(h), does not unequivocally waive the government's sovereign immunity for all FTCA claims alleging that investigative or law enforcement officers committed one of the specified, intentional torts while acting within the scope of their employment;  Sec. 2680(h)'s waiver reaches only those claims asserting that the tort occurred in the course of investigative or law enforcement activities;  dissenting in part, Judge Nelson thought that Sec. 2680(h) was not reasonably susceptible to a reading that would shield the government from liability because the defendant was not engaged in a specific law enforcement activity when the tort was committed;  Judge Nelson thought that when plaintiff's supervisor, who was acting within the scope of his employment as a law enforcement officer when he allegedly pointed a loaded gun at the plaintiffs and made statements such as "You're dead" and "You're history," exhibited conduct falling within the enumerated tort of assault, and the government should be liable if the allegations prove to be true.  Hug (author), D.W. Nelson (dissenting in part), and Hawkins, Circuit Judges.  G. Gorski of Fair Oaks, CA, for the plaintiffs;  AUSA J. Rodriguez of Boise, ID, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  ATTORNEYS' FEES:  Vizcaino v. Microsoft Corp., 01-35494 (9th Cir. May 15, 2002).  A 28% fee award to class counsel in litigation between Microsoft Corporation and its freelance workers was reasonable under the percentage method and the relevant state law;  because in a common fund case the relationship between the plaintiffs and their attorneys turns adversarial at the fee-setting stage, courts have stressed that when awarding attorneys' fees from a common fund, the district court must assume the role of fiduciary for the class plaintiffs;  fee applications thus much be closely scrutinized; rubber-stamp approval, even in the absence of objections, is improper;  here, the USCA was satisfied that the district court subjected the application to the requisite scrutiny and did not abuse its discretion in determining a reasonable fee in light of the relevant circumstances of the case.  Reinhardt and Hawkins, Circuit Judges, and Schwarzer (author), District Judge.  C. Wiggins of Seattle, WA, for the plaintiffs-appellants;  L. Schonbrun of Berkeley, CA, for the plaintiffs-objectors-appellants;  C. Arnold of Seattle, WA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  DISCOVERY:  Phillips v. General Motors, 01-35126 (9th Cir. May 13, 2002).  The federal common law presumption of access does not apply to documents filed with a court under seal pursuant to a valid protective order;  when a court grants a protective order for information produced during discovery, it already has determined that "good cause" exists to protect that information from disclo-sure by balancing the needs for discovery against the need for confidentiality.  Alarcon and Silverman, Circuit Judges, and Brewster (author), District Judge.  E. Clays of Washington, DC, for the defendant; J. Goetz of Bozeman, MT, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  EVIDENCE:  Blind-Doan v. Sanders, 00-17194 (9th Cir. May 28, 2002).  Under Fed. R. of Evid. 415, a district court fails to make, as required, a clear record in support of its exclusion of evidence of sexual assault where it vaguely identifies why proffered testimony should be excluded, and the exclusion is finalized by means of a one-sentence order without findings or explanation;  dissenting, Judge Fernandez thought that a district court need not explicitly set out its thoughts, and that the district court here did not abuse its discretion in refusing to admit "lurid, highly inflammatory, generally irrelevant evidence." Reinhardt, Noonan (author), and Fernandez (dissenting), Circuit Judges. K. Little of Fresno, CA, for the plaintiff;  L. Peake of Bakersfield, CA, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/))

26)  SETTLEMENTS:  Berkla v. Corel, 00-15166 (9th Cir. May 9, 2002).  The district court did not abuse its discretion in denying the prevailing party attorneys' fees where the jury rejected his contractual damages theory and awarded damages consistent with the estimates offered by a defense expert;  but, because the defendant did not make an offer of judgment pursuant to Fed. R. Civil Proc. 68, the court, in deciding to deny the prevailing party costs, could not rely on the fact that he recovered far less than the defendant had informally offered;  dissenting in part, Judge Sedwick thought the majority had adopted an inflexible rule that it is always error to deny costs on the basis that a prevailing party ignored an offer to settle and thereby prolonged litigation, unless the defending party's offer to settle was made pursuant to Rule 68;  Judge Sedwick further thought that by failing to take into account the difference between Rule 68 and Fed. R. Civil Proc. 54(d)(1) the majority conflated the two rules and substituted the simple comparative analysis and mandatory outcome dictated by Rule 68 for the exercise of discretion authorized by Rule 54(d)(1).  Hug and Tashima (author), Circuit Judges, Sedwick (dissenting in part), District Judge.  J. Houpt of Sacramento, CA, for the plaintiffs;  B. Lewis of Palo Alto, CA, for the defen-dant. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  CIVIL PROCEDURE / UNPUBLISHED DECISIONS: Sorrels v. McKee, 01-35222 (9th Cir. May 2, 2002).  While noting that it is not categorically forbidden from considering unpublished or non-precedential decisions in inquiring whether a prison's "no gift publication" policy was established under the second prong of qualified immunity, the inclusion of these additional sources did not alter the USCA's conclusion that the law was not clearly established;  concurring, Judge Teilborg thought that as unpublished opinions can never be binding precedent and do not put non-parties on notice of the opinion, courts should not consider them in reaching a determination that a law was clearly established.  Alarcon and Silverman (author), Circuit Judges, and Teilborg (concurring), District Judge.  N. Levine of Seattle, WA, for the plaintiff; R. Sorrels pro se;  M. Mitchell of Olympia, WA, for the defendants;  J. Hendricks of Helena, MT, for the intervenor-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  JURISDICTION:  United Computer Systems v. AT&T Corp., 00-55768 (9th Cir. May 31, 2002).  If the fraudulence of a defendant's joinder is irrelevant for purposes of determining diversity and there is no obligation to join that defendant in a removal petition, then the date of service on the fraudulently joined defendant does not commence the 30-day time period for removal under 28 USC Sec. 1446(b).  Schroeder, Cudahy (author), and McKeown, Circuit Judges.  S. Stanwyck of Los Angeles, CA, for the plaintiffs;  W. Kramer of San Francisco, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  AMERICANS WITH DISABILITIES ACT:  Vinson v. Thomas, 00-15534 (9th Cir. May 3, 2002).  A plaintiff cannot bring a 42 USC Sec. 1983 action against a state official in her individual capacity for the official's alleged violations of federal rights created by Title II of the Americans with Disabilities Act and Sec. 504 of the Rehabilitation Act;  dissenting, Judge O'Scannlain thought that since Hawaii enjoys a constitutionally protected right of sovereign immunity from suits neither waived nor validly abrogated by Congress, the merits of the plaintiff's disability discrimination claim against the state should not have been reached. Thompson (author), O'Scannlain (dissenting), and Berzon, Circuit Judges.  M. Livingston of Honolulu, HI, for the plaintiff;  J. Lam of Honolulu, HI, for the defendants;  S. Galanter of Washington, DC, for the intervenor.  (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  EDUCATION:  Ford v. Long Beach Unified School Dist., 00-56438 (9th Cir. May 29, 2002).  California requires that "standardized tests," but not a standardized "IQ" test be administered to determine whether a student has a "severe discrepancy between intellectual ability and achievement" for purposes of entitlement to special education services under the Individuals with Disabilities Education Act.  Schroeder (author) and McKeown, Circuit Judges, and Zilly, District Judge.  T. Whiteleather of Lakewood, CA, for the petitioners;  J. Hayashida of Tustin, CA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  MEDICAL TREATMENT:  Bryant v. Adventist Health System, 00-16399 (9th Cir. May 20, 2002).  Congress passed the Emergency Medical Treatment and Active Labor Act to address the failure of hospitals to provide emergency care to the uninsured and indigent; it did not intend it to be a federal malpractice statute;  a hospital thus cannot be liable under the Act if it negligently fails to detect or misdiagnoses an emergency condition.  Canby, Graber, and Paez (author), Circuit Judges.  R. Massa of Lakeport, CA, for the plaintiffs;  S. Dahl of Walnut Creek, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  FREEDOM OF SPEECH:  Planned Parenthood v. American Coalition of Life Activists, 99-35320 (9th Cir. May 16, 2002).  Under the Freedom of Access to Clinics Entrances Act, "threat of force" refers to statements which a reasonable person would foresee would be interpreted by the person to whom the statement is made as a serious expression of intent to inflict bodily harm upon that person; dissenting, Judge Reinhardt, joined by Kozinski, Kleinfeld, and Berzon, thought the majority's rejection of the concept that speech made in a political forum on issues of public concern warrants heightened scrutiny weakened First Amendment protections;  dissenting, Judge Kozinski, joined by Reinhardt, O'Scannlain, Kleinfeld, and Berzon, thought the majority's broad and uncritical deference to the judgment of a jury was contrary to the principles of the First Amendment;  dissenting, Judge Berzon, joined by Reinhardt, Kozinski, and Kleinfeld, and in part by O'Scannlain, thought that neither the defendant's advocacy of the view that murdering abortion providers was morally justified nor the posters or website it published crossed over into unprotected speech. Schroeder, Reinhardt (dissenting), Kozinski (dissenting), O'Scannlain, Rymer (author), Kleinfeld, Hawkins, Silverman, Wardlaw, Berzon (dissenting), and Rawlinson, Circuit Judges.  C. Ferrara of Ramsey, NJ, for defendants;  M. Vullo of New York, NY, for plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  FREEDOM OF RELIGION:  Guam v. Guerrero, 00-71247 (9th Cir. May 28, 2002).  The Supreme Court of Guam may not interpret the Territory of Guam's "Bill of Rights," a federal statute, to allow greater religious freedom than that provided by the First Amendment to the federal Constitution.  Beezer, Thompson, and O'Scannlain (author), Circuit Judges.  T. Ada of Hagatna, GU, for the petitioner;  D. Abrahamson of San Francisco, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  CIVIL RIGHTS:  Freeman v. Oakland Unified School Dist., 01-15327 (9th Cir. May 23, 2002).  A race-based employment discrimination claimant failed to exhaust his administrative remedies as required by Title VII of the Civil Rights Act of 1964 where factual allegations in his EEOC charge referred only to discriminatory conduct in relation to a specific school faculty election regarding the operation of his school, but his amended complaint alleged discrimination in the context of teaching assignments, class size, and the handling of a dispute.  O'Scannlain and Tallman (author), Circuit Judges, and King, District Judge.  D. Duggan of Oakland, CA, for the plaintiff;  D. Hoye of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  CIVIL RIGHTS:  Gerber v. Hickman, 00-16494 (9th Cir. May 23, 2002).  An inmate's claimed "right to procreate while in prison" is fundamentally inconsistent with incarceration;  dissenting, Judge Kozinski, joined by Judges Paez and Berzon, found nothing inherently inconsistent about the mechanics of procreation as the inmate proposed to practice them that would compromise prison security, unduly burden prison resources, or otherwise interfere with the safe and deficient operation of the prison system;  dissenting, Judge Tashima, joined by Judges Kozinski, Hawkins, Paez, and Berzon, found nothing in the record to indicate that the right to procreation is fundamentally inconsistent with the fact of incarceration.  Schroeder, Kozinski (dissenting), O'Scannlain, Rymer, Hawkins, Tashima (dissenting), Silverman (author), Gould, Paez, Berzon, and Rawlinson, Circuit Judges; dissenting, Judge Tashima thought that there was nothing in the record indicating that the right to have a child was fundamentally inconsistent with the fact of incarceration;  dissenting, Judge Kozinski thought that there was nothing inherently inconsistent about the mechanics of procreation as Gerber proposed to practice them that would compromise prison security, unduly burden prison resources, or otherwise interfere with the safe and efficient operation of the California prison system.  T. Zuber of Sacramento, CA, for the plaintiff;  G. Walston of Sacramento, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  CIVIL RIGHTS / PRISONERS:  Gibson v. County of Washoe, 99-17338 (9th Cir. May 22, 2002).  On the record of this case, a jury could conclude that Washoe County's medical screening policy that delays medical screening where an incoming inmate is combative, uncooperative, or unable to effectively answer questions due to intoxication, poses a substantial risk of serious harm to those with certain mental illnesses (e.g., there was evidence in the record that a common symptom of someone in a manic state, such as the plaintiff's husband, is that they are combative and uncooperative);  this mandatory exception to the County's normal medical screening procedures violated the plaintiff's husband's Due Process Clause right to receive medical care while in custody;  concurring, Judge Reinhardt wrote separately to say that there was no cause to resolve definitively which standard applies to the County [the more stringent subjective standard for determining deliberate indifference in the case of individual defendants established by Farmer v. Brennan, 511 US 825 (1994), or the less stringent objective standard of City of Canton v. Harris, 489 US 378 (1989)]  for purposes of this decision, Judge Reinhart noted, the USCA may simply apply the more stringent standard.  Reinhardt (concurring), Tashima, and Berzon (author), Circuit Judges.  J. Mowbray of Reno, NV, for the appellant;  G. Shannon of Reno, NV, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  CIVIL RIGHTS / PRISONERS:  Oliver v.  Keller, 00-15849 (9th Cir. May 2, 2002).  The district court did not err in dismissing the appellant's claims for emotional injury and correctly interpreted Sec. 1997e(c) of the Prison Litigation Reform Act to require that a prisoner bringing a federal civil rights action for mental or emotional injury must show more than de minimis physical injury to recover compensatory damages;  Sec. 1997e(e) applies only to claims for mental and emotional injury;  to the extent the appellant's claims for compensatory, nominal or punitive damages are premised on alleged Fourteenth Amendment violations, rather than on emotional or mental distress suffered as a result of those violations, Sec. 1997e(e) is inapplicable and those claims are not barred.  Hawkins (author) and Tashima, Circuit Judges, and Wilken, District Judge.  W. Jordan-Curtis of Tucson, AZ, for the appellant;  T. Dillard of Las Vegas, NV, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION LAW:  Rios v. Ashcroft, 01-70836 (9th Cir. May 1, 2002).  An applicant for asylum, whose husband was a high-ranking military official in her country of origin, Guatemala, established that she was persecuted on account of imputed political opinion where she had been abducted and wounded by guerrillas who told her they were acting because her husband and brother were members of the military; in addition, guerrillas attempted to abduct her child after confirming that her husband was the child's father.  Pregerson (author), Trott, and Goodwin, Circuit Judges.  C. Greene of Pasadena, CA, for the petitioner;  H. Phillips of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION LAW:  Jimenez-Angeles v. Ashcroft, 00-71478 (9th Cir. May 22, 2002).  An application of the Illegal Immigration Reform and Immigrant Responsibility Act's "cancellation of removal" rules (instead of the pre-IIRIRA's remedy of suspension of deportation), to an illegal alien who presents herself to the INS prior to the effective date of IIRIRA in order to admit her undocumented status and to begin a process that would permit her to apply for discretionary relief of suspension of deportation, was not impermissibly retroactive, where the INS did not commence removal proceedings against the alien until after the IIRIRA's effective date.  T.G. Nelson and W. Fletcher (author), Circuit Judges, and Aiken, District Judge.  R. Jacobs of Santa Ana, CA, for the petitioner;  S. Schiffer of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

40)  IMMIGRATION LAW:  Chen v. Ashcroft, 99-71546 (9th Cir. May 13, 2002).  For purposes of asylum based on fear of persecution due to membership in a social group, the punishment of a family member for a crime committed by another member of the family is punishment "on account of" membership in the family, not punishment for the crime;  the USCA concluded that, if returned to the People's Republic of China, it is more likely than not that the petitioner, persecuted on account of his family, will not only be imprisoned but, with the acquiescence of the PRC, tortured and killed while in prison.  Schroeder, Noonan (author), and W. Fletcher, Circuit Judges.  T. Nelson of Phoenix, AZ, for the petitioner;  M. Hall of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  UNLAWFUL REENTRY:  USA v. Godinez-Rabadan, 01-10455 (9th Cir. May 3, 2002).  The exact date on which an alien is found in the United States is not an element of the offense of unlawful reentry by a deported alien previously convicted of an aggravated felony in violation of 8 USC Sec. 1326(a);  the defendant had fair notice, from the face of the indictment, that the Government alleged that he had been found in the U.S., and the indictment included all other elements of a violation of Sec. 1326(a).  O'Scannlain and Tallman (author), Circuit Judges, and King, District Judge.  FPD F. Forsman of Las Vegas, NV, for the defendant-appellant;  AUSA R. Bork of Las Vegas, NV, the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  IMMIGRATION LAW:  Angulo-Dominguez v. Ashcroft, 00-15767 (9th Cir. May 21, 2002).  Eligibility for relief under the Registry Statute, 8 USC Sec. 1259, is available only to aliens who do not have a record of entry.  Pregerson and Rawlinson, Circuit Judges, and Weiner (author), District Judge.  V. Badrinath of Tucson, AZ, for the petitioner;  D. Ogden of Washington, DC, for the re-spondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMIGRATION LAW:  Armendariz-Montoya v. Sonchik, 01-16029 (9th Cir. May 30, 2002).  In the Antiterrorism and Effective Death Penalty Act context, deportation proceedings commence with the filing of an order to show cause with the Immigration Court.  O'Scannlain (author) and Tallman, Circuit Judges, and King, District Judge.  S. Goad of Washington, DC, for respondent;  V. Badrinath of Phoenix, AZ, for the petitioner. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  BORDER INSPECTIONS:  USA v. Carranza,00-50607 (9th Cir. May 3, 2002).  A customs inspector had probable cause to arrest a passenger in a vehicle at a border inspection point where the individual was the sole passenger in a vehicle carrying a commercial quantity of marijuana across the border, there was a strong odor of gasoline coming from the vehicle, suggesting recent tampering with the gas tank, the inspector had often seen gas tanks being used to smuggle contraband, and the vehicle's driver lied about his immigration status to the primary inspector.  Goodwin (author), Wallace, and Thomas, Circuit Judges.  FPD M. Winter of San Diego, CA, for the defendant; AUSA B. Castetter of San Diego, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  MIRANDA RIGHTS:  Pollard v. Galaza, 00-16210 (9th Cir. May 14, 2002).  A state court properly allowed the government to use the defendant's voluntary statements for impeachment purposes, although those statements were obtained in violation of Miranda;  when the police officer advised the defendant of his Miranda rights, the defendant responded that he did not want to make a statement;  after a short pause, the defendant initiated further conversation by asking, "What happened?" This prompted the officer to engage in a discourse about the events in question;  the officer did not misrepresent the nature or purpose of the interview, nor did he make promises or threats;  nor did he not confront the defendant with evidence the police may have had linking him to the crime;  moreover, during the interview, the defendant did not appear to be sweating, nervous, or showing signs of discomfort;  the physical environment of the interrogation area did not appear to be excessively uncomfortable.  O'Scannlain and Tallman, Circuit Judges, and King (author), District Judge.  FPD R. Barbour of Sacramento, CA, for the petitioner;   DAG L. Alcazar of Fresno, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  ROVING WIRETAPS:  USA v. Hermanek, 99-10092 (9th Cir. May 15, 2002).  Following the Second and Third Circuits the USCA held that a wiretap order is an extension of an earlier order only if it authorizes continued interception of the same location or communications facility specified by the prior order:  See USA v. Ojeda Rios, 875 F.2d 17, 21 (2d Cir. 1989) (holding that the term "extensions" is to be understood in a common sense fashion as encompassing all consecutive continuations of a wiretap order, however, designated, where the surveillance involves the same telephone, the same premises, and same crime, and substantially the same persons), and USA v. Vastola, 915 F.2d 865 (3d Cir. 1990) (holding that a change in the location of an illegal operation will prevent a subsequent order covering the new location from being an extension of a previous order);  the USCA concluded that applying Ojeda Rios and Vastola to cellular facilities is consistent with the plain language of Secs. 2518(a)(b)(ii) and (3)(d) of Title III of the Omnibus Crime Control and Safe Street Act of 1968;  the conclusion that the same meaning of "extension" should apply to cellular phones is supported by the overall structure of Title III which was amended to permit "roving" wiretaps; under 18 USC Sec. 2518(11) the government may obtain authority to intercept communications to and from any cellular phone number used by the target of an investigation;  before obtaining such authority, the government must establish that the target would thwart detection from a specified facility or location;  when the government makes such a showing, it need not specify a particular communications facility or location at which the surveillance will take place and Secs. 2518(1)(b)(ii) and (3)(d) do not apply;  by enacting that provision, Congress "contemplated the roving surveillance of suspects who move from room to room in a hotel or of terrorists who use different telephone booths to avoid surveillance;  roving wiretaps are, the USCA said, an appropriate tool to investigate individuals, such as the defendant here, who use cloned cellular phone numbers and change numbers frequently to avoid detection.  Politz, W. Fletcher, and Fisher (author), Circuit Judges.  AUSA J. Wilson of Oakland, CA, for the plaintiff; D. Riordan of San Francisco, CA, and A. Schwartz of Berkeley, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  INEFFECTIVE ASSISTANCE:  Jennings v. Woodford, 00-99008 (9th Cir. May 10, 2002).  The petitioner claimed that his state trial counsel was prejudicially ineffective by failing to investigate or present mental health defenses in either the guilt or penalty phases of his capital trial;  because the state provided no basis upon which to conclude that a reasonable tactical decision motivated trial counsel's abject failure to discover and consider vast and easily obtainable information about the petitioner's fragile and failing mental health—information that would have made a non-first degree conviction reasonably probable—the USCA concluded that the petitioner had been deprived of the effective assistance of counsel guaranteed by the Sixth Amendment during the guilt phase of his trial.  B. Fletcher (author), T.G. Nelson, and Berzon, Circuit Judges.  G. Eisenberg of San Francisco, CA, for the petitioner;  J. Deist of San Francisco,  CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  PLEAS:  USA v. Ma, 01-10025 (9th Cir. May 9, 2002).  The district court failed to satisfy the new requirements of Federal Rule of Criminal Procedure 11(c)(6), added by amendment in December 1999, when, while engaging in a plea colloquy with the defendant, it had the prosecutor summarize the terms of the plea agreement (which was proper prior to the 1999 amendment);  however, the defendant failed to show that the error seriously affect the fairness or integrity of her plea.  D.W. Nelson, Noonan (author), and Hawkins, Circuit Judges.  AFPD J. Carr of Las Vegas, CA, for the defendant;  AUSA M. Stanish of Las Vegas, NV, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  DOUBLE JEOPARDY:  USA v. Patterson, 00-30306 (9th Cir. May 16, 2002).  When, during a Rule 11 plea colloquy, a district judge accepts a guilty plea and clearly states that the court is not bound by the plea agreement, the court conditionally accepts the plea, and thus jeopardy does not attach; concurring Judge Noonan thought that when the defendant pleaded guilty to growing marijuana he had not escaped punishment for growing 100 or more marijuana plants;  he was exposed to the risk that he court would so find and thus was not twice put in jeopardy of his life, limbs, or any definite period of incarceration;  dissenting, Judge Tashima thought that the district court had conducted a thorough plea colloquy, satisfying the requirements of Federal Rule Criminal Procedure 11, and unconditionally accepted the defendant's guilty plea;  Judge Tashima thus thought jeopardy had attached.  Noonan (concurring), Tashima (dissenting), and Tallman (author), Circuit Judges.  M. Maxwell of Los Angeles, CA, for the appellant;  P. Bell of West Hills, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  JURY INSTRUCTIONS:  USA v. Rosales-Rodriguez, 00-50145 (9th Cir. May 8, 2002).  The district court's delivery of a supplementary jury instruction constituted a "critical stage" of the trial for which the defendant's presence or that of his counsel was both constitutionally and statutorily required under the Due Process Clause of the Fifth Amendment and Federal Rule of Criminal Procedure 43;  however, despite the constitutional and statutory violations, the USCA found the errors to be harmless beyond a reasonable doubt.  Kozinski and Tallman (author), Circuit Judges, and Winmill, District Judge.  FPD S. Lachelier of San Diego, CA, for the defendant; AUSA J. Parmley of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  PROSECUTORIAL MISCONDUCT:  USA v. Beckman, 01-50288 (9th Cir. May 21, 2002).  Although the prosecutor committed misconduct by attempting to impeach the defendant on cross-examination with the defendant's prior arrest and prior misdemeanor conviction and the district court erred in allowing such an examination, the error was harmless in the context of the entire trial:  the defendant never admitted to the arrest, the jury was given no evidence that the defendant had actually been arrested, the court sustained an objection to a question about the misdemeanor conviction, and because no answer was given to this question, the jury did not have evidence that the defendant had actually been convicted;  moreover, the government did not discuss the arrest or conviction in summation and the jury was able to assess the defendant's credibility in the broader context of the entire trial.  Hawkins (author) and Fisher, Circuit Judges, and Weiner, District Judge.  J. Roake of San Diego, CA, for the defendant;  S. Saham of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  EQUITY SKIMMING:  USA v. Weaver, 01-10438 (9th Cir. May 22, 2002).  The "purchase" element of the crime of equity skimming in violation of 12 USC Sec. 1709-2, does not require proof of the exchange of adequate consideration.  O'Scannlain (author) and Tallman, Circuit Judges, and King, District Judge.  W. Cohan of San Diego, CA, and M. Bigelow of Sacramento, CA, for the ap-pellants;   AUSA R. Taylor of Sacramento, CA, for the USA. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  WITNESSES:  USA v. Adamson, 00-10643 (9th Cir. May 23, 2002).  When a witness participates in a joint interview with the defendant but remains largely silent, making only a few indications of agreement with the defendant's statements, a district court effectively denies the defendant his right to attack the witness's credibility by failing to permit the introduction of the defendant's statements during the joint interview into evidence at the time of the witness's cross-examination so as to provide context for the witness's re-sponses;  the defendant was thus prejudiced and the error was not harmless.  Goodwin (author) and Trott, Circuit Judges, and Ezra, District Judge.  M. Topel of San Francisco, CA, for the defendant; AUSA T. Flynn of Sacramento, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  "FALSE STATEMENT" OFFENSES:  USA v. Hart, 01-10220 (9th Cir. May 28, 2002).  Proof of materiality is not an element of the crime of making a false statement in an application for a U.S. passport;  concurring, Judge Kleinfeld thought that, while he agreed with Justice Stevens' dissent in USA v. Wells, 519 US 482 (1997), which implied a materiality element in some statutes, he had to conclude that pursuant to the majority opinion in Wells there was no materiality element in the statute herein at issue.  Rymer, Kleinfeld (concurring), and McKeown, Circuit Judges.  Per Curiam.  A. Capozzi of Fresno, CA, for the defendant;  AUSA S. Oberto of Fresno, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  SENTENCING / TAX EVASION:  USA v. Brickey, 00-10561 (9th Cir. May 16, 2002).  An INS border inspector found guilty of willfully making a false income tax return and attempting to evade income taxes as a result of failing to report income derived from his participation in a scheme that allows cars carrying contraband to cross into the U.S.-Mexico border without routine inspection, was subject to a two-level abuse of trust enhancement under Sentencing Guideline Sec. 3B1.3.  Goodwin and Trott, Circuit Judges, and Ezra (author), District Judge.  A. Baggot of Apache Junction, AZ, for the defendant;  R. Lindsay of Washington, DC, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  SENTENCING:  USA v. Jordan, 00-10233 (9th Cir. May 30, 2002).  Any fact other than a prior conviction that increases the maximum statutory penalty must be charged in an indictment.  Canby, Hawkins, and Gould (author), Circuit Judges.  AUSA W. Wong of Sacramento, CA, for the plaintiff;  AFPD J. Staniels of Sacramento, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  HABEAS CORPUS:  Reynolds v. Cambra, 01-55643 (9th Cir. May 15, 2002).  Under USA v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002), which held that Apprendi v. New Jersey, 530 US 466 (2000), does not apply retroactively, the district court's partial grant of the habeas petition here was reversed.  Fernandez and Rawlinson (author), Circuit Judges, and Reed, District Judge.  M. Maxwell of Los Angeles, CA, for appellant;  P. Bell of West Hills, CA, for appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  HABEAS CORPUS:  Osband v. Woodford, 00-99016 (9th Cir. May 15, 2002).  A habeas petitioner who raises an ineffective assistance of counsel claims waives the attorney-client privilege as to the matters challenged, but it is within the discretion of the district court to limit that waiver to the habeas proceeding in which the ineffective assistance issues is raised.  Politz, W. Fletcher (author), and Fisher, Circuit Judges.  W. Campbell of Sacramento, CA, for the respondent;  C. Alvarez of Sacramento, CA, for the petitioner. (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  HABEAS CORPUS:  Franklin v. Johnson, 00-36108 (9th Cir. May 30, 2002).  Oregon procedurally defaulted its claim, raised for the first time on appeal, that petitioner's ineffective counsel claim had not been exhausted in state court;  concurring, Judge O'Scannlain thought that as the case only nominally involved a procedural bar and actually was based on petitioner's failure to exhaust a claim in state court, 28 USC Sec. 2254(b)(3) protects Oregon from its failure to raise the issue below.  B. Fletcher, O'Scannlain (concurring), and Berzon (author), Circuit Judges. AFPD C. Schatz of Portland, OR, for petitioner;  E. Hadlock of Salem, OR, for defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  HABEAS CORPUS:  Pagtalunan v. Galaza, 00-56697 (9th Cir. May 23, 2002).  The district court did not abuse its discretion in dismissing a habeas petition with prejudice where the petitioner failed to file a timely amended petition, offered no reasonable excuse for the delay, and the public's interest in the expeditious resolution of litigation, the court's need to manage its docket, and the risk of prejudice to the petitioner all weighed in favor of dismissal;  dissenting, Judge Schroeder thought there were times when the appellate court's preoccupation with the standard of review causes it to lose sight of its responsibility to ensure that district courts properly exercise discretion, and that here the district court did not exercise its discretion within appropriate limits as it failed to consider relevant factors in dismissing;  Concurring, Judge Trott wrote to assure the Chief Judge that the majority was not "preoccupied" with the standard of review and did not "lose sight" its responsibility as judges;  rather, it simply saw the case differently at a time when the Central California district court's need to manage its huge caseload had never been greater; with as many as six vacancies gone unattended for far too long;  Judge Trott thought the trial courts did not have time to waste on multiple failures by aspiring litigants to follow court rules.  Schroeder (dissenting), Trott (concurring), and Rawlinson (author), Circuit Judges. V. Wefald of Pasadena, CA, for the petitioner;  A. Duarte of Los Angeles, CA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  COPYRIGHTS:  Moxley v. McCann-Erickson, Inc., 00-35994, 01-35159 (9th Cir. May 16, 2002) (unpublished).  Beezer, Rymer, and McKeown, Circuit Judges.
         Two appeals were consolidated here for briefing, argument, and decision.  00-35994 appealed a summary judgment dismissing Moxley's claims of copyright infringement.  The USCA found that the undisputed facts established that Moxley authored materials which were not copyrightable.  The judgment was entered on October 10, 2000.  Notice of appeal was untimely filed on November 13, 2000, a date more than 30 days after the entry of judgment.  01-35159 is an appeal from the district court's denial of Moxley's motion for more time for appeal.  The notice of appeal from the denial of this motion was timely filed.  After considering records filed in these appeals and the arguments of counsel, the USCA ordered that 01-35159 should be affirmed because the district court found no excus-able neglect as required by Fed. R. App. P. 4(a)(5) and that 00-35394 should be dismissed because the USCA lacked jurisdiction.

2)  TRADEMARKS:  eCash Technologies v. Guagliardo, 00-57107 (9th Cir. May 13, 2002) (unpublished).  Wardlaw and W. Fletcher, Circuit Judges, and Whyte, District Judge.
                  The District Court for the Central District of California, Judge Collins presiding, dismissed Guagliardo's state law counter-claims with prejudice, dismissed his counterclaim for cancellation of eCash Technologies's federal trademark registration with prejudice, and granted eCash's motions to dismiss and strike despite an alleged violation of the district court's meet-and-confer require-ments. Guagliardo appealed.
          The USCA affirmed.  Guagliardo first sought to overturn the district court's dismissal of his state law counterclaims with prejudice, arguing that he had already voluntarily dismissed those counterclaims without prejudice under Fed. R. Civil Proc. 41(a)(1).  Rule 41(a)(1), however, only applies to dismissals of all claims against a particular defendant, not to dismissals of less than all claims.  Guagliardo's October 4, 2000 Notice of Dismissal sought to dismiss only his state law counterclaims, leaving additional counterclaims in the action.  Because the purported dismissal was of less than all counterclaims, Rule 41(a) was inapplicable.  Rule 15(a) was the proper mechanism by which Guagliardo could have sought to amend his pleading to drop some, but not all, counterclaims against the appellant.  However, he did not properly file a motion to amend prior to the district court's order dismissing the state law counterclaims with prejudice.  Those counterclaims thus remained in the action at the time the district court issued its decision.  In his March 15, 2002 supplemental brief, Guagliardo cites Banks v. Pitt, 928 F.2d 1108 (11th Cir. 1991), in arguing that he could challenge the district court's dismissal on appeal even though he did not properly seek leave to amend in the district court.  Given the circumstances of this case, however, including that Guagliardo already once amendment his counterclaims, the USCA found that granting the appellant leave to further amend would not serve the interests of justice.
         Guagliardo next sought to overturn the district court's dismissal of his counterclaim for cancellation of the appellee's federal trademark registration, arguing that the district court considered only one of the two grounds he had advanced in support of cancella-tion.  Those two grounds were: (1) that the appellee fraudulently registered its trademark, and (2) that the appellee misused its trademark by attempting to enforce it beyond the scope of the rights granted by the registration.  Guagliardo did not appeal the district court's rejection of the first ground.  Rather, he argued that the district court erred in failing to consider the second ground.  The USCA disagreed.  A court may cancel a trademark that has been on the Principal Register less than five years if the trademark is barred from registration under Sec. 2 of the Lanham Act or if the trademark is covered by any of the recognized grounds under which a registration may be canceled at any time.  Guagliardo does not challenge the trademark's appropriateness for registration and does not provide legal authority that its "trademark misuse" theory is a recognized basis for trademark cancellation.  Moreover, McCarthy on Trademarks and Unfair Competition does not recognize Guagliardo's theory as a basis for cancellation.  Because he failed to advance a cognizable theory for cancellation of eCash's federal trademark registration, the USCA affirmed the district court's dismissal with prejudice of Guagliardo's trademark cancellation counterclaim.
          Finally, Guagliardo sought to overturn the district court's decision granting eCash's motion to dismiss and motion to strike, arguing that eCash did not meet and confer prior to filing these motions, as required by Central District of California Local Civil Rule 7.4.1.  The USCA disagreed with Guagliardo's argument.  The local rules do not require dismissal of the eCash's motions for failure to satisfy the meet-an-confer requirements nor do they even provide for such a harsh penalty.  Local Rule 27, for instance, contemplates monetary sanctions for rule violations and calls for such sanctions only if the non-moving party's conduct was willful, grossly negligent, or reckless, or rises to the level of bad faith or willful disobedience of a court order.  The record did not show that eCash engaged in such conduct here.  In fact, the record shows that it complied with Rule 7.4.1's meet-and confer requirements in the meeting of counsel held on July 11, 2000.  Moreover, even if the parties had not met and conferred on July 11, 2000, Guagliardo had received sufficient information to put him on notice of the grounds for eCash's renewed motion to dismiss and motion to strike through its original, and nearly identical, motions to dismiss and strike filed on June 22, 2000.  Because the district court's decision to grant eCash's motions to dismiss and strike was not erroneous, it properly determined that Guagliardo violated California Code of Civil Procedure Sec. 425.16(c) (the "Anti-SLAPP statute"), and properly awarded eCash its attorneys' fees and costs as the prevailing party.

 3)  LANHAM ACT / ANTI-TRUST:  Theme Promotions, Inc. v. News America FSI, 01-16329 (9th Cir. May 3, 2002) (unpublished).  O'Scannlain and Tallman, Circuit Judges, and King, District Judge.
         The district court dismissed Theme Promotion's original complaint for failure to identity the market in which both Theme and News America operate, and failure to allege antitrust injury—that is, injury to competition in the marketplace, rather than merely injury to Theme itself.  Theme amended its complaint, but the district court again dismissed the antitrust claims—this time with prejudice—although it acknowledged that Theme "met its burden of setting forth a theory" as to why the "free-standing insert" ("FSI") coupon mar-ket was a market without suitable substitutes.  The district court again held that Theme failed to contend that it suffered antitrust injury because it had not properly pled that the challenged actions affected competition and not simply competitors.  It faulted Theme for not alleging that News' policy affected the output of FSIs or increases their price, and it concluded that it could not find an injury to competition in the absence of evidence that News' policy decreases output, raises prices, harmed the quality of goods or otherwise affected allocative efficiency in the market for advertising and promotional services provided in conjunction with the placement publication and distribution of FSIs in newspapers.
        The USCA affirmed the award of summary judgment on the Lanham Act claim but reversed as to all the other claims.  It first found that dismissal with prejudice was inappropriate.  Theme maintained that News' changed position regarding its "right of first refusal provisions" ("ROFRs") in contracts with "packaged goods manufacturers" ("PGMs"), even when Theme sought to create a tie-in promotional campaign, "resulted in a decrease in the number of overall FSI pages and an increase in the cost of advertising per unit sold."  A "decrease in the number of overall FSI pages" is insufficient, as Theme must have sustained an injury in the market where competition is being restrained.  Theme was not in the business of FSI publishing and distribution.  It was in the business of arranging FSI promotional and advertising services.   The second half of Theme's allegation of harm to competition addressed the appropriate market, however, as an increase in the cost of advertising per unit sold would have a direct effect on the availability of promotional and advertising services.  As pled, this allegation asserted an injury to consumers and competition in the relevant market, not just its own business.  News responded that Theme had merely pled antitrust buzzwords with conclusory allegations and no detailed analysis of the economic effects of increased costs on output.  However, the Federal Rules of Civil Procedure do not require the plaintiff to plead the particulars of his claim.  Hammes v. AAMCO Transmissions, Inc., 33 F.3d 774, 778 (7th Cir. 1994).  While Theme may not have provided the most detailed description of facts, its allegations were sufficient to survive a motion to dismiss in an antitrust case where "dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly" since "the proof is largely in the hands of the alleged conspirators."  Hospital Bldg. Co. v. Trustee of Rex Hosp., 425 US 738, 746-47 (1976). Although conclusory allegations without more are enough to defeat a motion to dismiss, Theme's complaint did not merely state that it suffered antitrust injury.  It specifically alleged that News caused "an increase in the cost of advertising per unit sold."  That fit with the requirement that the antitrust injury be of the type that antitrust laws were designed to prevent as the injury stems from a reduced ability to compete, not because of increased competition in the marketplace.
 Antitrust standing is also required under California's Cartwright Act, but California law grants antitrust standing more liberally than does federal law.  In dismissing the state antitrust claim the district court relied on its reasoning in dismissing the federal anti-trust claims, stating that Theme had not alleged injury to competition.  Because the USCA reversed the dismissal of the federal anti-trust claims, it also reversed the dismissal of the broader, more liberal state antitrust claims.
        To sustain a claim of intentional interference with prospective economic advantage under California law, the plaintiff must plead that the defendant "engaged in conduct that was wrongful by some legal measure other than the fact of interference itself."  Marin Tug & Barge, Inc. v. Westport Petroleum, Inc., 271 F.3d 825, 831 (9th Cir. 2001) [quoting Della Penna v. Toyota Motor Sales, U.S.A., Inc., 902 P.2d 740, 751 (Cal. 1995)].  Other elements of the tort are: "(1) an economic relationship between the plaintiff and another containing a probably future economic benefit or advantage to plaintiff, (2) defendant's knowledge of the existence of the relationship, (3) defendant's intentional conduct designed to interfere with or disrupt the relationship, (4) actual disruption, and (5) damage to the plaintiff as a result of defendant's acts."  Id. at n.8  In its amended complaint Theme alleged that News intentionally interfered with its prospective economic relationships with companies such as Benevia and Gillette by (1) changing its policy regarding its ROFRs, (2) threatening litigation, and (3) engaging in other anticompetitive behavior.  The district court dismissed this claim, citing Youst v. Longo, 729 P.2d 728 (Cal. 1987).  It found the claim about Theme's ability to have future contractual relationships with the companies with whom it currently did business too speculative.  But Youst was a unique case which held that "as a matter of law and public policy" the tort of intentional interference with prospective economic advantage is not available "in the context of a sporting event."  729 P.2d at 732. 
       Theme alleged that News' use of its ROFRs was unlawful and that News interfered with its prospective economic opportunities with PGMs.  The complaint thus met the threshold requirement under California law pertaining to unlawful conduct beyond the interference itself.  The district court noted that Theme did not enter long-term contracts so relationship with its customer "ceases at the end of the promotion."  While this fact may make prospective economic advantages less certain, it seems likely that Theme obtains some repeat business after completing a successful promotion.  Theme alleged it had relationships with certain companies and expected to continue to work with them in the future.  That was sufficient at the complaint stage.  The district court also noted that News' actions may have been privileged.  California's "competitive privilege" applies if "(a) the relation between the competitor and the third party concerns a matter involved in the competition between the actor and the competitor, and (b) the actor does not employ improper means, and (c) the actor does not intend thereby to create or continue an illegal restraint of competition, and (d) the actor's purpose is at least in part to advance his interest in his competition with the other."  Navellier v. Sletter, 262 F.3d 923, 937-38 (9th Cir. 2001).  Whether News used improper means or created or continued an illegal restraint of competition encompassed the whole dispute.  The district court could not determine the lawfulness of the ROFRs on the basis of Theme's complaint. 
        California's unfair competition law prohibits unlawful, unfair, or fraudulent business acts or practices as well as unfair, deceptive, untrue or misleading advertising.  "Unfair" conduct under Cal. Bus. & Prof. Code Sec. 17200 (2001) is conduct "that threatens an incipient violation of anti-trust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition." Cel-Tech Comm. v. Los Angeles Cellular, 20 Cal. 4th 163, 187 (Cal. 1999).  The record indicated little evidence that News' ROFRs were unlawful.  As the district court noted: "Unfortunately for [Theme], PGMs voluntarily entered into ROFR agreements to secure favorable rates and placements.  A PMG that seeks to participate in [Theme]-sponsored FSI programs can choose (1) not to enter into ROFR agreements, and thus remain free from such an obligation; (2) to inform [Theme] of its ROFR arrangements and request to be partnered with a PGM that is either a free-agent or has an ROFR with the same publisher; or (3) request an exemption from the ROFR, in a situation in which the PGM desires a tie-in arrangement with an entity which has an ROFR with the competing FSI publisher.  Although this situation may be inconvenient for [Theme], it hardly seems 'unworkable'."  Theme also entered into exclusive dealings with both News and Valassis.  Thus, as the district court noted: "[Theme] hopes to negotiate and benefit from desirable terms in ROFR contracts with one or the other FSI publishers, yet deny the validity of such arrangements when entered into by its clients."  As Theme's claim regarding the unlawfulness of News' actions is tied to its antitrust claims, the USCA reversed to permit the district court to resolve all the claims at once. 
       Finally, the USCA affirmed the summary judgment for News on the Lanham Act claim.  Under the Act a party is liable for any false or misleading description of fact in commercial advertising.  15 USC Sec. 1125(a).  Theme offered evidence that News told PGMs that there had been no change in the interpretation or enforcement of ROFRs; that ROFRs prohibited PGMs from certain arrangements; and that Theme was merely an agent for PGMs.  Theme also offered evidence that News questioned Theme's business ethics and practices.  Opinions about and interpretations of ROFRs in contracts are not actionable "facts" under the Act and expressions of Theme's business practices and ethics were opinions.  Misrepresentation of another's goods or services must be in the context of commercial advertising.  Thus internal discussions of Theme's business practices and ethics at News did not qualify.

4)  TAXATION:  CIR v. Lane, 00-71238 (9th Cir. May 1, 2002) (unpublished).  Reinhardt and Graber, Circuit Judges, and Hunt, District Judge.
 Marten appealed the Tax Court's ruling that she was deficient in paying her taxes.  The Commissioner of Internal Revenue (CIR) appealed a related case against her ex-husband, Lane.  The USCA affirmed.
         Alimony payments constitute taxable income for the receiving spouse and deductible expenditures for the paying spouse under IRC Sec. 215.  Under the version of IRC Sec. 71 in effect at the time of Lane and Marten's support decree, a payment qualified as alimony if it was (1) incurred by the husband under a decree of divorce or separation, or a written instrument incident to such divorce or separation;  (2) made in discharge of a legal obligation based on the marital or family relationship; and (3) made periodically.  Marten maintained that the Tax Court should have applied the more restrictive definition of alimony adopted as part of the Deficit Reduction Act of 1984 ("DEFRA").  However, DEFRA's changes apply only to divorce or separation instruments executed after December 31, 1984, and to instruments "executed before January 1, 1985, but modified on or after such date if the modification expressly provides that the amendments made by this section shall apply to such modification."  Id. Sec. 422(e), 98 Stat. at 798 (1984).  Here a support decree was originally executed in 1984, and then modified in 1987.  The 1987 modifications did not expressly provide for application of the post-DEFRA version of IRC Sec. 71. The Tax Court thus did not err in holding that pre-DEFRA law applied to the modified decree.  Applying the pre-DEFRA Sec. 71, Lane's payment of insurance premiums qualify as alimony because they were incurred under a support decree incident to divorce, made in discharge of a legal obligation based on the marital relationship, and made periodically.  Marten argued that the payment should not be considered alimony because the policy was for the benefit of their child and because she received no ascertainable economic benefit.  Child support payments do not qualify as alimony taxable to the receiving spouse or deductible by the paying spouse.  Payments to a spouse will be considered child support only if the support decree or agreement fixes the payments for the support of minor children of the husband.  Lane and Marten indicated that the purpose of the policy was in part to provide for their son's case.  However, the written support decree did not fix the insurance payments, or a portion thereof, as payable for the support of their minor child.  The Tax Court thus did not err in finding that the insurance premiums were not child support.  For a payment to be considered alimony, the receiving spouse must actually receive payment or constructively obtain an "ascertainable economic benefit."  In the context of insurance policies, a spouse must be both the owner and irrevocable beneficiary of the policy for payment of premiums to be considered income.  Marten was the owner and irrevocable beneficiary of the policy on Lane's life and had the right to borrow against the policy, receive interest from the policy, and exchange the policy for its case surrender value.  The Tax Court did not err in finding that she received an ascertainable economic benefit from the life insurance policy.  Finally, Marten maintained that the Tax Court abused its discretion in denying her request to estop Lane from denying that the insurance premium payments were child support.  The same payments, however, can result in benefits to both a wife and child.  Such payments constitute alimony when they are not labeled as child support and meet the statutory requirements for alimony, as the payments here did.  Lane's previous statements that the payments were for the case of his child thus are not necessarily inconsistent with his present argument that they also provide benefits to his wife and should be classified as alimony.  The Tax Court thus did not abuse its discretion in holding that the judicial estoppel did not apply.

5) SECURITIES FRAUD / DISGORGEMENT:   SEC v. Volmer, 00-57045 (9th Cir. May 3, 2002) (unpublished).  Reinhardt and Graber, Circuit Judges, and Hunt, District Judge.
          The District Court for the Central District of California, Judge Letts presiding, entered an order and judgment for the SEC and against defendants Brian Volmer and his two firms, International Alliance Trading and Sun Pacific Capital.  The court held that the defendants were liable for touting the stock of Cetacean Industries and Juina Mining Company without disclosing compensation they received from the issuer for doing so.  The defendants had received $296,429 in profits from their activities.  The court also held Volmer and International Alliance liable for material misrepresentations in a newspaper advertisement touting stock for Cetacean Industries.  It entered permanent injunctions against future violations by the defendants and ordered Volmer to disgorge $296,429, plus prejudgment interest of $22,021, and imposed a civil penalty on Volmer of $296,429, pursuant to Sec. 20(d) of the Securities Act of 1933 and Sec. 21(d)(3) of the Exchange Act.  The court also ordered relief defendant Lisa Volmer to pay disgorgement in the amount of $106,646 in the event Brian failed to satisfy the judgment.  The defendants appealed, asserting that the district court erred in:  (1) relying on documents not in the record;  (2) adopting the SEC's proposed findings of fact;  (3) finding that Brian did not have a good faith belief in the quality of his investments;  (4) ruling that he must disgorge $296,429 in "ill-gotten" gains; and, (5), ordering that he must pay a civil penalty of $296,429 and prejudgment interest. 
          The USCA affirmed.  First, the appellants argued that the district court erroneously relied upon documents not in the record.  However, both parties stipulated to the admission of all but three of the documents.  Of those three, two were not relied upon and the third duplicated another exhibit.  Second, the appellants argued that the district court's finding of fact, specifically concerning scienter, were clearly erroneous.  The district court, in hearing and observing live testimony, was entitled to disbelieve Volmer's version of the events.  The remaining evidence was sufficient to support the court's findings, including those of scienter.  The fact that the court chose to adopt the SEC's recommended findings of fact did not detract from those findings.  Third, the appellants argued that they committed no securities violations and that the district court erred in holding they did.  The defendants recommended that investors buy securities without disclosing the compensation they received from the issuers of those securities.  Moreover, Volmer and International Alliance made materially false or misleading statements in recommending Cetacean stock through national advertisement.  In light of these circumstances, the district court did not err.  Fourth, the appellants argued that the amount of disgorgement (including interest) was too great because there was no nexus between the statutory violations and the amount ordered disgorged, which represented the entire amount of Volmer's "ill-gotten gains."  However, the defendants failed to show that severable parts of their business were legitimate and failed to offer evidence that would have shown an appropriate alternative cut-off date or other appropriate formula for pro-rating the amount their received.  The defendants failed to show error in the calculation of the disgorgement order.  Finally, the defendants argued that the district court should not have imposed a third-tier civil penalty.  In view of the fraud finding, which was not clearly er-roneous, such a penalty is authorized.

6)  BANKRUPTCY:  In re Smith, 00-36014 (9th Cir. May 16, 2002) (unpublished).  B. Fletcher, O'Scannlain, and Berzon, Circuit Judges. 
           Gold Country Lenders ("GCL"), a California real estate finance corporation, operates as a middleman matching investors to borrowers.  Investor loans are secured by real property.  While the payee of the note and deed of trust in these transactions is GCL, the beneficial interests are subsequently assigned to the actual investor.  In 1993, Hirsch borrowed $15,000 from GCL in consideration for which he executed a note ("the SPS note") and deed of trust on a California property.  SPS, a since-dissolved corporation, was the payee of the note.  The deed of trust was also in SPS's favor and recorded, but the SPS note cannot now be found.  Texeria later paid off SPS on Hirsch's behalf, and a note by Hirsch in Texeria's favor was executed for the same amount ("the Texeria note).  Shortly thereafter, United initiated foreclosure proceedings against the California property.  In 1994, Smith, who worked with Hirsch, approached GCL in hopes of arranging a loan intended in part to purchase the California property.  Smith borrowed $28,000 through GCL and she and Hirsch executed a $28,000 note (the "$28,000 note") and deed of trust on the property.  That same day, Smith executed a cross-collateral installment note to GCL for $43,000 at 12% interest, and a cross-collateral deed of trust recorded against real property Smith owned in Oregon as additional security.  A $43,000 balloon payment on the note was due June 25, 1995, and interest was to be paid in conformity with the terms of the SPS note and the $28,000 note, both secured by the deeds of trust on the California property and cross-secured by the Oregon property.  The $43,000 note recited the fact that it was executed only as additional security for the two prior notes and deeds of trust, and was not itself offered in consideration of an "additional loan."  It also stated that upon payment in full of both the $28,000 and SPS notes, the $43,000 note would be cancelled and the deed would be reconveyed.
         Smith continued to make interest payments on the $43,000 note through June 1996, but did not make a balloon payment in June 1995.  After failed attempts to reach Smith, GCL filed a notice of default and election to sell the Oregon property pursuant to the $43,000 note and deed of trust.  The notice declared that GCL was entitled to "all sums due and owing on the obligation secured by the deed of trust," to wit "$43,000 principal plus interest from June 8, 1994 until paid at the rate of 12% per annum on the amount afore-said."  Smith then filed a Chapter 13 petition, and her third amended plan was confirmed in 1998.  GCL filed a $49,174.82 proof of claim in the bankruptcy court, and later a third amended proof of claim, asserting a $61,182.59 secured claim that included attorneys' fees and costs.  Smith filed objections.  The bankrukpcy court issued a letter ruling allowing GCL a secured claim in the amount of $43,000, plus $9,796.60 in interest, less $1,000 in statutory damages for GCL's violation of the Truth in Lending Act (TILA), 15 USC Sec. 1601. After adding GCL's fees and costs into the total award, the court entered its final order, allowing GCL's claim in the amount of $68,980.91. 
        Acting pro se, Smith appealed the bankruptcy court's decision to the BAP.  On August 4, 2000, it affirmed the bankruptcy court's findings that GCL was entitled to a secured claim and to proceed against the property and assert a claim in Smith's bankruptcy proceeding.  However, the BAP reversed the bankruptcy court's calculation of the principal amount of the claim, finding that Smith did not assume the Texeria note, and that the SPS note, the note incorporated into the $43,000 cross-collateral note, "was paid off."  The BAP remanded to the bankruptcy court for a re-calculation of attorney's fees and costs excluding all fees and costs associated with the SPS and Texeria notes.  GCL appealed the BAP's decision to reduce its award, and Smith cross-appeals on over a dozen claims of error.
       The USCA affirmed.  GCL argued that the BAP erred in holding that it was not entitled to $15,000 of the principal amount awarded by the bankruptcy court, nor to any interest, attorneys' fees or costs related to the SPS and Texeria notes.  GCL maintained that even though the $43,000 cross-collateral note incorporated the "wrong" $15,000 note (i.e., the original $15,000 note given to SPS instead of the then-existing Texeria note), Smith intended to assume the "subsequent" Texeria note and must be liable for it.  The USCA disagreed.  There was no evidence that Smith assumed liability on the Texeria note.  The $15,000 note executed by Hirsch in favor of SPS was paid off by Texeria, who became beneficiaries of the new note.  The SPS and Texeria notes listed different beneficiaries, and appear to have different terms with respect to the interest rate—the SPS note at 12% interest, the Texeria note at 15% inter-est.  Most importantly, the cross-collateral installment note referred only to the SPS note, not also the Texeria note.  The USCA did not presume that Smith intended to assume responsibility for a note materially different from the one incorporated by the explicit language of the cross-collateral installment note.  The USCA disposed of Smith's claim that the BAP erred in failing to award her actual damages as a result of GCL's TILA violation in a published opinion filed concurrent with this memorandum. (See Published Opinion #17 above.)  With regard to the remaining issues Smith raised in her appeal, the USCA concluded that after careful review of the record, briefs, and oral argument, it found each issue to be without merit for substantially the reasons stated by the BAP.  The USCA thus affirmed the BAP's decision and remanded to the bankruptcy court to re-calculate Smith's liability to GCL and the reasonableness of any fees.

7)  BANKRUPTCY: Range Rider Partners Ltd. Partnership v. Range Rider Estates, 00-16623 (9th Cir. May 10, 2002) (unpublished).  Bright, B. Fletcher, and Fisher, Circuit Judges.
          The District Court for Arizona, Judge Silver presiding, upheld the bankruptcy court's judgment that Range Rider Partners Limited Partnership ("RR Partners") was not entitled to exercise its right to redeem a settlement agreement made with Range Rider Estates ("RR Estates"), concerning the purchase of 80 acres of undeveloped property in Maricopa County, because the agreement was not an executory contract. 
          The USCA affirmed.  Under the Bankruptcy Code, a debtor can redeem an executory contract with leave of the court at any time before its reorganization plan is confirmed.  11 USC Sec. 365.  RR Partners sought to exercise its right of redemption of its settlement agreement with RR Estates, based on the view that the agreement is an executory contract.  The USCA agreed with the ruling of the district court that the agreement was not executory within the meaning of Sec. 365.  A contract is executory if the obligation of both parties are so unperformed that the failure of either party to complete performance would constitute a material breach and thus excuse the performance of the other.  In re Robert L. Helms Constr., 139 F.3d 702, 705 (9th Cir. 1998).  However, a contract will not be considered executory if performance does not remain due to some extent on both sides.  Helms held that an option contract, for which the option has not been exercised prior to the debtor's bankruptcy filing, does not constitute an executory contract under Sec. 365, as the prospect of continuing duties between the parties remain too speculative to support the debtor's right of redemption.  Like the Helms option contract, the contract between the parties here imposed no mutual obligation until RR Partners paid to RR Estates $2 million by January 23, 1999, and $1 million by February 23, 1999.  When RR Partners filed its petition for bankruptcy on January 22, 1999, no payment had been made and, thus, no option to purchase the property had been exercised.  The parties thus owed no recipro-cal duties to one another, and no executory contract had been formed.

8)  BANKRUPTCY:  In re Fong, 01-55974 (9th Cir. May 16, 2002) (unpublished).  Thomas and Rawlinson, Circuit Judges, and Armstrong, District Judge.
          Pang appealed a Bankruptcy Appellate Panel's decision affirming a bankruptcy court's finding that a debt Fong owed Pang was dischargeable under 11 USC Sec. 523(a)(2)(A), and that Fong breached no fiduciary duty toward Pang within the meaning of 11 USC Sec. 523(a)(4).  The USCA affirmed.  Pang failed to establish, by a preponderance of the evidence, the elements of nondischargeability under Sec. 523(a)(2)(A).  In re Harmon, 250 F.3d 1240, 1246 (9th Cir. 2001).  The bankruptcy court thus did not err in determining that the debt was dischargeable.  Moreover, a fiduciary duty arises only if an expressed or technical trust exists.  In re Banks, 263 F.3d 862, 871 (9th Cir. 2001).  Pang failed to establish the existence of such a trust.  Thus, no fiduciary duty arose.  In ad-dition, the relationship between Pang and Fong did not rise to the level of a fiduciary relationship under Sec. 523(a)(4).

9)  AIR SAFETY:  Simmons v. American Airlines, 01-15659 (9th Cir. May 3, 2002) (unpublished).  D.W. Nelson and Hawkins, Circuit Judges, and Fitzgerald, District Judge.
         Simmons, an airline passenger, was removed from a fight with no explanation given for his removal.  When he filed suit alleging that his removal was racially motivated, the airline argued that he was a safety threat and was removed in accordance with the airline's safety policy.  At issue on appeal was whether the airline's contention satisfied its burden to establish a nondiscriminatory reason for the removal.  The District Court for the Northern District of California, Magistrate Spero presiding, entered summary judgment for of the airline.
         Simons, a black man, boarded an American Airlines flight on August 19, 1999.  At some point after he sat down, a female passenger sitting one row in front of him apparently approached a flight attendant and complained about Simmons' language.  The record contains several different versions of the female passenger's complaint.  American's motion for summary judgment states (without citation to any evidence in the record) that the female passenger was offended when she overheard Simmons using many expletive while talking on a cell phone prior to departure.  But, according to American's event report (which is evidence in the record), Simmons was facing the window and "mumbling obscenities."  The only obscenity specifically listed by the event report, was Simmons' alleged use of the phrase "damn white bitch."  A third version of the incident emerges from Simmons' complaint:  he denies ever saying anything, but states that American employees told him that he had been removed after a female passenger complained of his alleged use of the phrase "honky bitches."  The record seems clear on the following:  First, the flight attendants moved the complaining passenger from her coach seat to first class.  After she was moved, she had no further contact with Simmons and made no further complaint about him.  Second, the flight attendant who heard the female passenger's complaint briefed the captain on the situation.  There was no evidence in the record, however, as to what was said during that briefing.  Third, after talking with the flight attendant, the captain apparently decided to have Simmons removed from the airplane.  There was no testimony in the record from the captain explaining his deci-sion, but an event report prepared by an American Airlines employee, Garza, states that the captain was motivated by a desire "to guarantee the safety of the other [passengers]."  Fourth, after the captain made his decision, Simmons was approached by the gate agent and another American employee.  He was told, without explanation, to get his carry-on bag and follow the American agents off the plane.
       A couple of months after this incident, Simmons filed a pro se complaint for racial discrimination against American Airlines in California state court.  American removed the case to federal court and moved for summary judgment.  The sole evidence offered by American in support of its motion for summary judgment (other than Simmons' responses to form interrogatories) was a declaration by George Warner, a "Team Leader for Insurance and Risk Management."  Attached to his declaration were copies of American Airlines' flight manual, which includes American's policy on passenger safety and misconduct. Also attached was the aforementioned event report.
       The district court granted American's motion for summary judgment because American had articulated a legitimate, non-discriminatory reason for removing Simmons, and Simmons introduced no evidence to show that this reason was pretextual.  More specifically, the court found that Simmons was removed from the aircraft pursuant to American's safety policy because of his miscon-duct, namely, the alleged use of obscenities within earshot of another passenger.  Absent proof of pretext, the court concluded that no reasonable jury could find that Simmons was removed because of his race.
        The USCA reversed the summary judgment and remanded for proceedings consistent with this disposition.  First, affidavits in support of a motion for summary judgment "shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence."  Fed. R. Civ. Proc. 56(e).  Simmons argued that American's motion for summary judgment was deficient because the sole support for it—the Warner affidavit—was hearsay that would not be admissible at trial.  The USCA disagreed.  The Warner affidavit was accompanied by two exhibits.  The first was a copy of portions of American's flight and safety manual.  This exhibit was not hearsay evidence because it was not being offered to prove the truth of the matter asserted.  The second exhibit was the event report prepared by Garza.  This report was properly considered under the business record exception to the hearsay rule; it was prepared by Garza roughly at the time of the event and in the regular course of his business duties.  Second, at issue was whether American provided a legitimate, non-discriminatory reason for removing Simmons.  The burden-shifting structure set out in Texas Dept. of Community Affairs v. Burdine, 450 US 248 (1981), does not give American carte blanche to proffer any explanation, regardless of plausibility, for its actions to shift the burden back to Simmons.  Rather, as Burdine states, American's evidence must be "legally sufficient to justify a judgment for the defendant."  Id. at 255.  Under this standard, the USCA thought American did not satisfy its burden of articulating a legitimate, non-discriminatory reason for removing Simmons.  American's evidence was legally insufficient to warrant summary judgment in its favor because there was not sufficient evidence in the record to justify the conclusion that American removed Simmons pursuant to its own safety policy.  At oral argument, counsel for American Airlines maintained that a provision of American's passenger misconduct policy authorized the flight attendants to remove Simmons.  It states:  "Passenger misconduct requiring the Captain's attention prior to departure may result in removal of the passenger from the aircraft.  The Captain should assess whether misconduct on the ground may escalate in flight."  To be subject to removal under this provision, a passenger must (1) engage in misconduct that (2) requires the captain's attention.  Paragraph A of the passenger misconduct section of American's flight manual defines in detail what constitutes passenger misconduct.  Paragraph A divides passenger misconduct into three escalating categories, the third being the highest and the first being the lowest.  Category One misconduct is defined by the FAA as follows:  "The Flight Attendant requests compliance with crewmember instructions and the passenger complies with the request.  No further action is required by the Flight Attendant nor does it warrant report to the cockpit, the carrier, or the FAA."  Category Two misconduct is where a passenger continues his disturbance, such as verbal abuse, that interferes with cabin safety after being warned.  Category Three misconduct occurs when a passenger or crew member is injured or subjected to a credible threat of injury—whether a warning was given or not.  American's proffered legitimate, non-discriminatory reason failed on its own terms because Simmons was not engaged in any misconduct—much less misconduct that required the captain's attention.  Simmons was never warned in any way prior to being removed from the plane.  He was never even told of the complaint by the other passenger, much less asked if it was true.  Paragraph A requires that even the lowest category of misbehaving passenger be given this courtesy before their conduct may be branded as "misconduct."           
        Moreover, the USCA found it troubling that there were no affidavits in the record from the complaining passenger, the flight attendants who informed the captain, or the captain.  Moreover, there was substantial confusion over what Simmons allegedly said.  Viewing the evidence in the light must favorable to Simmons, the USCA thus took seriously his assertion that he said nothing of an offensive nature.  And once that assertion is taken seriously, the USCA said it must take seriously the possibility that Simmons' race played a part in the events that ultimately led to his removal. 
         Finally, the USCA held that Simmons' complaint did not assert a claim for negligent or intentional infliction of emotional distress. The complaint was entitled "Complaint for Discrimination," and the only legal authority accompanying it was an excerpt from California's Unruh Civil Rights Act.  Moreover, a letter from Simmons to American attached to the complaint stated only that he would be "suing American Airlines in thirty days for racial discrimination, establishment discrimination and violation of my civil rights."  Even construing his pro se pleadings liberally, the USCA concluded that that the complaint referenced emotional distress in terms of the harm Simmons suffered as the result of the alleged discrimination, not as a separate cause of action.

10)  IMMIGRATION:  Kim v. INS, 01-70275 (9th Cir. May 8, 2002) (unpublished).  Wardlaw and W. Fletcher, Circuit Judges, and Whyte, District Judge.
 Kim and his sister sought review of the BIA's dismissal of their appeal from a deportation order.
           The USCA denied the petitions.  In deportation proceedings, the government must prove alienage by evidence of foreign birth before the burden shifts to the petitioner to rebut by showing legal entry.  Here, during the deportation phase of the hearing before the IJ, the government introduced the Records of Deportable Alien (Form I-213), which evidenced that the petitioners were born in Korea and entered the country without inspection from Mexico. The government called both Kims as witnesses, but they asserted their Fifth Amendment privileges and refused to testify.  Neither offered evidence to contest the government's case.  Thus, based on the evidence provided by the I-213 forms in conjunction with an adverse inference drawn against the petitioners resulting from their assertion of their Fifth Amendment privileges, the IJ concluded that the government had established alienage and deportability by clear, convincing and unequivocal evidence.  The hearing then proceeded to consider the petitioners' applications for voluntary departure where the petitioners continued to assert their Fifth Amendment privileges, but made two concessions:  Ms Kim said she had first entered the United States in July 1990; and, Mr. Kim said he and his sister entered illegally.  The IJ denied the petitioners' applications for voluntary departure, in part due to their continued assertion of their Fifth Amendment privileges.  The IJ then ordered the petitioners deported.
          The BIA concluded that the IJ did not err in admitting the I-213 forms, specifically finding the forms were probative and their use fundamentally fair.  The petitioners argued that the BIA and IJ erred in finding the I-213 forms to be admissible and probative as to deportability.  The test for admissibility of evidence in immigration proceedings is whether the evidence is probative and whether its use is fundamentally fair so as to not deprive the alien of due process.  The strict rules of evidence do not apply.  The INS may prove alienage with an authenticated I-213 Form.  The forms offered into evidence before the IJ were certified copies of the I-213 forms from the INS records.  No authenticity challenge was made.  The petitioners' only challenge to the admission of the I-213 forms was that they were not probative and contained hearsay evidence.  Although there some question existed regarding what information, if any, in the I-213 forms was obtained from the petitioners themselves, there was no error in admitting the forms.  Once they were authenticated and the ground for admissibility established, the petitioners had the burden of establishing a basis for exclusion.  They had to come forward with evidence to challenge the accuracy of the forms, or to establish that their entry was legal.  However, they offered no evidence to challenge the accuracy of the forms or the reliability of the information recited in the forms, such as that the information was obtained through coercion or duress.  They failed to meet their burden of establishing a basis for excluding the evidence.  Thus, there was no error in admitting the I-213 forms, and there was no error in relying on them as evidence of the petitioners' alienage. 
           The BIA's decision affirming the order of deportation recited that it relied on the I-213 forms plus the concessions.  The peti-tioners read this to mean that the BIA took the I-213 forms to be their admissions.  The concessions referred to in the BIA decision, however, were identified as the petitioners' testimony during the voluntary departure hearing that Ms. Kim first entered the U.S. in 1990 and that she and Mr. Kim entered illegally.  The petitioners suggest that it was improper for the BIA to have considered conces-sions made during the voluntary departure hearing in deciding whether to affirm the order of deportation.  The sole authority cited was the regulation then in effect, 8 CFR Sec. 242.17(e), which provided that "an application under this section shall be made only during the hearing and shall not be held to constitute a concession of alienage or deportability in any case in which the respondent does not admit his alienage or deportability."  A similar provision is now codified at 8 CFR Sec. 240.49(e).  The USCA was not convinced by this argument, as even if it was error for the BIA considered the concessions during the voluntary departure hearing, the error was harmless.  The unrefuted evidence from the I-213 forms was sufficient to establish alienage and deportability.  The adverse inference drawn from the petitioners' assertion of their Fifth Amendment privileges supported the same conclusion.