868 F.2d 420
63 A.F.T.R.2d 89-1009, 89-1 USTC  P 9245
SHERRY FRONTENAC, INC., Estate of Samuel Cohen, Deceased,Alan Cohen, Personal Representative, Estate of Ethel Cohen,Deceased, Joel Cohen, Personal Representative, Irvin Kovens,Jacqueline H. Kovens, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee.
No. 88-5722Non-Argument Calendar.
United States Court of Appeals,Eleventh Circuit.
March 23, 1989.

Harvey M. Silets, Silets and Martin, Ltd., Chicago, Ill., E. David Rosen, Rosen & Rosen, P.A., Miami, Fla., for plaintiffs-appellants.
Dexter W. Lehtinen, U.S. Atty., Miami, Fla., Gary R. Allen, Chief, Appellate Section, Tax Div., Dept. of Justice, Washington, D.C., William S. Rose, Asst. Atty. Gen., Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HILL, FAY and EDMONDSON, Circuit Judges.
PER CURIAM:

1
The judgment of the district court is affirmed for the reasons set forth in the Order Dismissing Causes With Prejudice entered on July 14, 1988, which we adopt and set forth in the appendix hereto.

APPENDIX

2
Sherry Frontenac, Inc., Plaintiff,

3
vs.

4
United States of America, Defendant.

5
Estate of Samuel Cohen, Deceased, et al., Plaintiffs,

6
vs.

7
United States of America, Defendant.

8
Irvin and Jacqueline H. Kovens, Plaintiffs,

9
vs.

10
United States of America, Defendant.

11
Nos. 86-2374-CIV-HOEVELER to 86-2376-CIV-HOEVELER.

12
United States District Court S.D. Florida.

13
Filed June 14, 1988.

ORDER DISMISSING CAUSES WITH PREJUDICE

14
THIS CAUSE came for consideration upon defendant, United States of America's motion to dismiss each of these consolidated actions.  A court may not grant a motion to dismiss a complaint unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief.  Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).  The material allegations of the complaint are taken as true, and are liberally construed in plaintiff's favor.  See, e.g., St. Joseph's Hosp. v. Hospital Corp. of America, 795 F.2d 948, 954 (11th Cir.1986).

Background:

15
The instant litigation consists of three actions brought against the United States by Sherry Frontenac, Inc., Estate of Samuel Cohen, and Irvin and Jacqueline Kovens.  Because each case presents the same issues, the cases were consolidated by previous order of the court.  Each of the plaintiffs contend that the assessment of income tax deficiencies for various years in various amounts was barred by the applicable statute of limitations.  The government has filed a motion to dismiss for failure to state a legally cognizable claim.

16
In each case, the Internal Revenue Service ("IRS") provided notice of a tax deficiency to each plaintiff, after which a federal income tax deficiency was assessed against the individual plaintiffs.  In each instance, plaintiffs agreed to stipulated decision entered by the tax court finding the existence of a deficiency against all three taxpayers.  The incontrovertible facts indicate that each of the assessments was made more than 60 days, and less than 150 days, after entry of the Tax Court decisions.

Discussion:

17
There exist four main statutes which are essential to the resolution of these consolidated actions.

18
Section 6501(a) of the IRS Code, 26 U.S.C. Sec. 6501(a), provides a three year statute of limitations period in which the I.R.S. must assess any tax deficiency.  However, Section 6503(a)(1) suspends the three year period of limitations on assessment until the decision of the Tax Court becomes final and for sixty days thereafter (emphasis added).

19
Section 7481 defines the date when the tax court decision becomes final for both reviewable and nonreviewable decisions.  In the case of a reviewable decision, Section 7481(a) provides that if a timely appeal is not filed, the decision becomes final upon the expiration of the time for filing notice of appeal.  In the case of a nonreviewable decision, Section 7481(b) provides that the decision becomes final upon the expiration of 90 days after the decision is entered.

20
Section 7483 defines the period in which an appeal to the Tax Court may be taken.  This statute provides that the time for filing notice of appeal is within ninety days after the decision of the Tax Court is entered.  If notice of appeal is not filed, then the Tax Court decision becomes final ninety days after it is entered.

21
Defendant, United States of America, contends that the assessments involved were timely under the applicable statutes.  Defendant first submits that according to Sections 7481(a)(1) and 7483, Congress has defined the mechanism whereby the finality of a Tax Court decision is determined.  The government claims that these statutes establish that a decision of the Tax Court for purposes of finality under Sections 6501(a) and 6503(a)(1) are actually final upon the expiration of 90 days after the Tax Court decision is entered in which no notice of appeal has been filed.  Therefore, the government contends that, for the purpose of making an assessment in compliance with the statutory limits of the Code, the IRS is permitted 90 days from the date that the Tax Court decision is entered, in addition to 60 days thereafter (a total of 150 days after entry of decision) to make their assessment of deficiency.  The government concludes that because its assessments in all three cases in question were made within 150 days from entry of the stipulated Tax Court decision, such assessments were timely and allowable and, therefore, this action should be dismissed in favor of the government.

22
Defendant also cites case law which it asserts is dispositive of the issue of when a tax court decision becomes final.  First, the government claims that the Court in Security Industrial Insurance Co. v. United States, 830 F.2d 581 (5th Cir.1987) determined the issue of when a stipulated Tax Court decision becomes final under the aforementioned statutes.  Defendant suggests that in Security Industrial the Fifth Circuit rejected plaintiff's argument that a stipulated tax court decision becomes final upon entry of decision and thus mandates assessment within 60 days from entry.  This case further held that the fact that a stipulated tax court decision may be unreviewable by appeal does not necessarily mean that the decision is not a "reviewable decision" within the meaning of Section 7481(a).  Security Industrial, 830 F.2d at 585.

23
Plaintiffs submit two main arguments in support of their position that the IRS's assessment and collection of the deficiencies in question were barred by the applicable statute of limitations.  Plaintiffs first rely on a waiver clause in the stipulated tax court decision, which stated that "upon entry of the Tax Court decision, [Plaintiffs] waive the restrictions in Section 6213(a) of the I.R.S. Code prohibiting assessment and collection of the deficiency until the decision of the Tax Court becomes final."    Section 6213(a) provides that, within 90 days "after the notice of deficiency" by the IRS, the taxpayer may file a petition with the Tax Court for a "redetermination" of the deficiency.  This statute also allows for waiver by the taxpayer of the restrictions in Sec. 6213(a).  See 26 U.S.C. Sec. 6213(d).  Plaintiffs argue that since the taxpayers waived the restrictions under Section 6213(a) through the waiver clause in the stipulated decision, the tax court's decision became final upon the passing of 60 days after its entry, and because the I.R.S. made their assessments after that time in each case, such assessments were precluded by Section 6503(a)(1).

24
Secondly, plaintiffs assert that the tax court's stipulated decision became final upon its entry because there was no right to appeal that decision.  Plaintiffs claim that Security Industrial never decided the issue of when a tax court decision becomes final in the case of a non-appealable stipulated tax court decision.  Plaintiffs' position is that because the taxpayers have waived their right to appeal by entering into a stipulated decision and because the Security Industrial decision did not decide the finality of a stipulated tax court decision per se, the stipulated decision became final upon its entry by the tax court and, under Section 6503(a)(1), timely assessment of taxes against Plaintiffs must have been made within 60 days of the entry of that decision.

25
The main issue for consideration by the Court is whether the stipulated tax court decisions in these cases are final orders, which eliminate the 90 day appeal period and thereby require the IRS to assess within 60 days after entry of the tax court decisions.

26
Plaintiffs strongly rely on the waiver of the conditions in Section 6213(a) of the IRS Code as determinative of the fact that such a waiver removes the 90 day "appeal" period provided in Sections 7481(a) and 7483.  However, Plaintiffs' reliance on the effect of the waiver clauses is misplaced.  The restrictions in Section 6213(a) concern the Plaintiffs' right to file a petition for a "redetermination of the deficiency" and not the appealability of a tax court decision, which is governed by Sections 7481(a) and 7483.  Section 6213 involves a taxpayer's right to a redetermination of the IRS's notice of deficiency within 90 days of such notice.  The practical effect of the stipulated waiver clauses in each of these cases is to do away with the restriction placed on the IRS that within 90 days "after the notice of deficiency" they may not assess and collect the deficiencies.  A waiver of the restrictions on the IRS to not assess within this 90 day period is not germane to a waiver of the 90 day appeal period under Sections 7481(a) and 7483 of the IRS Code, which govern whether the stipulated tax court decisions in these cases were final orders.  As such, the waiver of the 90 day period for redetermination of the deficiency has no effect on the issue of whether or not the 90 day appeal period is applicable to the instant cases.

27
Plaintiffs second argument is that the 90 day appeal period provided in Sections 7481(a) and 7483 is inapplicable to a case where there is a stipulated settlement, which effectively transforms the tax court's judgment into a "final and non-appealable" judgment.  While permitting the IRS the 90 days for purposes of allowing Plaintiffs to file an appeal may be an act of futility, "the question to consider is whether the policy Plaintiffs favor is in accord with Congressional intent."    Badaracco v. Commissioner of Internal Revenue Service, 464 U.S. 386, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984).  Indeed, "when courts construe limitation statutes barring the collection of taxes 'otherwise due,' they must be strictly constructed in favor of the government."    Id., at 398, 104 S.Ct. at 764.

28
Plaintiffs' position appears to be contrary to the Fifth Circuit's holding in Security Industrial, in which the court held that the unreviewable status of a stipulated decision does not remove it from the class of "reviewable decisions" under Section 7481(a).  Security Industrial, 830 F.2d at 585.    The court went on to hold that "even an unappealable and thus legally unreviewable Tax Court decision is a 'reviewable decision' within the meaning of Sec. 7481(a).  Id. at 586.    Moreover, in a virtually identical case to the case at bar, the court in Becker Brothers v. United States of America, Case Nos. 85-1085, 85-1086, 85-1087, 1088 (Order of February 3, 1988), held that the express language of Sections 6503, 7481 and 7483 allows the IRS 90 days from the date the tax court decision is entered, in addition to 60 days from the expiration of the 90 day period, to assess the tax due from the taxpayer.  Based on these cases as well as the court's independent analysis of the applicable statutes, the court holds that the stipulated tax court decisions in these cases are "reviewable decisions" under Section 7481(a) and are thus final 90 days after the tax court decision is entered.  Accordingly, the assessment by the IRS in each of these cases was timely since they took place within 150 days after entry of the tax court decision.  As such, it is

29
ORDERED AND ADJUDGED that defendant's motion to dismiss be GRANTED with prejudice.

30
DONE AND ORDERED in Chambers at Miami, Florida, this 10th day of June, 1988.

31
(s) Wm. M. Hoeveler

United States District Judge


857 P.2d 888 (1993)
122 Or. App. 371
In the Matter of Sean Allen Davis, a Child.
STATE ex rel. CHILDREN'S SERVICES DIVISION, Respondent,
v.
Judy Lynn CAMPBELL, Appellant.
J-7323; CA A77533.
Court of Appeals of Oregon.
Argued and Submitted April 5, 1993.
Decided August 18, 1993.
Reconsideration Denied October 13, 1993.
Kevin M. McCallie, McMinnville, argued the cause and filed the brief for appellant.
Michael C. Livingston, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before DEITS, P.J., and RIGGS and DURHAM, JJ.
RIGGS, Judge.
Mother appeals an order terminating her parental rights pursuant to ORS 419.523 and the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. We affirm.
Mother is an enrolled member of the Iowa Tribe of Kansas-Nebraska (Tribe). Child was born on August 19, 1991. On August 22, 1991, the Yamhill County Juvenile Department filed a petition with the juvenile court to terminate mother's parental rights. On that same date, the court granted Children's Services Division (CSD) temporary custody of the child. Mother has a schizoid personality disorder and a history of alcohol dependence. Because she also suffers from a severe seizure disorder, she requires a 24-hour caregiver. Both of her other children have been removed from her care due to life threatening endangerment. Child was placed with his maternal aunt who also has custody of child's sister. Pursuant to the ICWA, CSD *889 notified the Tribe of the hearing to terminate parental rights but the Tribe declined to intervene. Mother's parental rights were terminated.
At oral argument on appeal, the state notified this court that it had recently discovered that a petition seeking jurisdiction of child was pending at the time mother's parental rights were terminated. There is, therefore, a question whether the court had authority to terminate mother's rights. Because the issue was not raised below, we gave the parties leave to respond.
The issue of jurisdiction may be raised at any time and is not waived. Comley v. State Bd. of Higher Ed., 35 Or.App. 465, 468 n. 3, 582 P.2d 443 (1978). ORS 419.482 provides, in relevant part:
"(1) Any person may file a petition in the juvenile court alleging that a child named therein is within the jurisdiction of the court as provided in ORS 419.476(1).[1]
"* * * * *
"(3) At any time after a petition is filed, the court may make an order providing for temporary custody of the child."
ORS 419.482 does not require that the juvenile court make a separate ruling accepting jurisdiction before it grants temporary custody of the child. It simply states that after the petition is filed, the court can grant temporary custody. We do not condone courts' failing to rule on jurisdictional petitions before terminating parental rights.[2] However, in this case, it is clearly established that the court assumed jurisdiction of the child when it granted CSD temporary custody.
Mother assigns error to the use of expert witnesses who had no specific knowledge of Indian culture. We review de novo. See State ex rel. Juv. Dept. v. Tucker, 76 Or.App. 673, 710 P.2d 793 (1985), rev. den. 300 Or. 605 (1986). The ICWA provides:
"No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or the Indian custodian is likely to result in serious emotional or physical damage to the child." 25 USC § 1912(f). (Emphasis supplied.)
Mother argues that State ex rel. Juv. Dept. v. Charles, 70 Or.App. 10, 688 P.2d 1354 (1984) rev. dismissed 299 Or. 341, 701 P.2d 1052 (1985), controls. We disagree. In Charles, which involved cultural bias, we said that a "qualified expert witness" must possess special knowledge of social and cultural aspects of Indian life. 70 Or.App. at 16 n. 3, 688 P.2d 1354.[3]
In State ex rel. Juv. Dept. v. Tucker, supra, we clarified and distinguished our holding in Charles: "[W]hen cultural bias is clearly not implicated, the necessary proof may be provided by expert witnesses who do not possess special knowledge of Indian life." 76 Or.App. at 683, 710 P.2d 793. The issue in Charles was cultural bias. The termination of parental rights in *890 Tucker, as in this case, was due to the mother's mental illness. Here, the state has presented evidence beyond a reasonable doubt that mother's emotional illness, mental deficiency, neurological disorders, and failure to adjust to these conditions, combined to leave her incapable of parenting for extended periods of time. Mother presented no evidence or witnesses to refute those claims or to show that the issue was cultural bias rather than her mental illness. We conclude that continued custody by mother would likely result in serious damage to the child. That ruling is consistent with the evidence and with 25 U.S.C. § 1901, et seq.
The other arguments do not merit discussion.
Affirmed.
NOTES
[1]  ORS 419.476(1) provides, in relevant part:

"The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age * * *."
[2]  The grounds for juvenile court jurisdiction and termination may be alleged and established in the same proceeding. See State ex rel. Juv. Dept. v. Moyer, 42 Or.App. 655, 601 P.2d 821 (1979), rev. den. 288 Or. 633 (1980).
[3]  According to the House Report, the purpose of the "qualified expert witness" provision in the ICWA is to avoid problems with cultural bias:

"The courts tend to rely on the testimony of social workers who often lack the training and the insights necessary to measure the emotional risk the child is running at home. * * * Rejecting the notion that poverty and cultural differences constitute social deprivation and psychological abuse, the Association argues that the State must prove that there is actual physical or emotional harm resulting from the acts of the parents." H.R. 1386, 95 Cong.2d Sess. 10.
In Charles, the state presented as witnesses two social workers who had no special knowledge of Indian culture. The mother's expert witness was a board-certified psychiatrist and had been a consultant to the Urban Indian Council.


386 F.Supp.2d 898 (2005)
HENKEL CORPORATION, Plaintiff,
v.
Charles K. COX and Chemtool Incorporated, Defendant.
No. CIV 05-70395.
United States District Court, E.D. Michigan, Southern Division.
March 23, 2005.
*899 Charles C. DeWitt, Jr., DeWitt, Balke, Detroit, MI, for Plaintiff.
Allan J. Sternstein, Bradley G. Lane, Brinks, Hofer, Chicago, IL, James K. Cleland, Jon H. Beaupre, Brinks, Hofer Ann Arbor, MI, Todd R. Mendel, Barris, Sott, Detroit, MI, for Defendant.

OPINION AND ORDER
FEIKENS, District Judge.
OPINION DETAILING FINDINGS OF FACT AND CONCLUSIONS OF LAW WHICH SUPPORT THE ORDER OF A PRELIMINARY INJUNCTION
On March 15-17, 2005, this Court held an evidentiary hearing on the motion for a preliminary injunction brought by Plaintiff Henkel Corporation (Henkel). On March 17, this Court issued a preliminary injunction forbidding, for the duration of this suit, use of the alleged trade secrets by Defendant Chemtool Inc. (Chemtool) and Defendant Charles Cox. (Order Granting Preliminary Injunction, March 17, 2005; Corrected Order, March 21, 2005.) It also limited the scope and location of Defendant Cox's employment responsibilities at Chemtool for that period and restricted Cox from contacting some customers and colleagues. It forbade Cox from accessing the Chemtool internal network and forbade any employee of Chemtool who had access to the alleged trade secrets from contacting customers about products that compete with Plaintiff; and finally, as an enforcement mechanism, provided for regular imaging of computers and electronic media of some Chemtool employees, including Cox. (Id.) No bond was required from Plaintiff.
I write now to explain the findings of fact and conclusions of law supporting this injunction and my decision on bond.
FINDINGS OF FACT
I. The Parties
1. Henkel is a Delaware corporation with its principal place of business in Gulph Mills, Pennsylvania. It produces a variety of products, including lubricants, coolants, and cleaners used in the production of beverage and food cans. (Complaint ¶ 1, admitted in Cox's Verified Answer and Chemtool's Answer.)
2. Cox, who once worked at Henkel and is now employed by Chemtool, resides in Macornb Township, within the Eastern District of Michigan. (Complaint ¶ 2, admitted in Cox's Verified Answer.)
3. Chemtool is a Illinois corporation, and has offices in Crystal Lake, Illinois as well as Elkhorn, Wisconsin. (Complaint ¶ 3, admitted in Chemtool's Answer; Testimony of James Athens, Mar. 17, 2005.)
II. The Cause of Action and Procedural Posture of the Case
4. Henkel's suit has four counts: one against Cox, one against Chemtool, and two against both Defendants. Henkel sues Cox for a breach of employee agreement, Chemtool for tortious interference with contractual relations, and both for *900 misappropriation of trade secrets and unfair competition. All these counts are brought under Michigan law, with the exception of the trade secrets count, which is brought under both Michigan and Illinois law.
5. Concurrent with the filing of its Complaint, Henkel moved for a temporary restraining order and preliminary injunction that would "prevent the harm [the] misappropriation by Cox and Chemtool would cause to Henkel's competitive position in the marketplace." (Br. in Support of the Motion for a Prelim. Inj., 2.)
6. On February 2, 2005, this Court ordered temporary restraint. Later, with the agreement of both parties on several occasions, this Court continued the Temporary Restraining Order until March 17, 2005, when the hearing on Plaintiff's Motion for a Preliminary Injunction concluded.
III. Employment Agreement
7. In January of 1997, Defendant Cox signed an employment agreement with Plaintiff as a condition of his employment. That agreement contained several provisions forbidding disclosure to unauthorized parties of information not generally available to the public, including information about products and manufacturing costs. (Agreement ¶ 2.)
8. The agreement provided that Cox would "make no use of any such information [...] except such use as is required in the performance of my duties for the Company [Henkel]." (Id. at ¶ 2(c)).
9. The agreement further provided that upon termination of employment, all materials, including specifically formulas and data, would be the sole property of the Company [Henkel] and would be delivered to Henkel by Cox. (Id. at ¶ 2(d)).
10. The agreement has no non-compete clause that would impose conditions on the future employment of Cox after termination of employment with Henkel.
IV. Cox's Departure from Henkel and Arrival at Chemtool
11. On January 3, 2005, Cox informed his immediate supervisor at Henkel that be planned to resign from his employment at the end of the month.
12. On Friday, January 21, 2005, Cox had a meeting with superiors at Henkel. The outcome of the meeting was that Cox was asked to leave Henkel immediately, and his employment with Henkel ceased on that date.
13. On February 1, 2005, Cox began his employment with Chemtool.
V. Evidence Regarding Alleged Trade Secrets
14. At the hearing on March 15, 2005, Plaintiff indicated that it planned to present evidence of the theft of more than a thousand trade secrets in support of its Motion for a Preliminary Injunction. At the continuation of the hearing on March 16, 2005, I indicated that I felt a preliminary injunction could be supported by evidence of theft of two alleged trade secrets, one within the aluminum can lubricant business and one outside the aluminum can lubricant business, and thus I would only take evidence on two secrets of Plaintiff's choosing.
A. Alleged Trade Secret Involving Aluminum Can Business
15. Plaintiff's Exhibit 8, Lines 73 to 95, columns C and D, are titled "Henkel" and contain the ingredient list and percentages of those agreements in "Postlube", a lubricant used in the manufacture of aluminum cans that Henkel plans to sell to customers, but which has not yet released.
16. Plaintiff's Exhibit 8, Lines 73 to 95, columns E and F contains a corresponding set of ingredients and their percentages, marked "CT," for Chemtool.
*901 17. That document states that "We are starting to develop our own aluminum can bodymaker formulac. This is the first iteration."
18. Cox admitted he created the file on his Chemtool laptop.
19. Cox admitted that the "Postlube" formula represented in lines 73 to 95 was a direct copy of Henkel's formula, and that he was using it to create his own formula.
20. At Henkel, the Postlube formula was stored in a password-protected database at Henkel, where access was closely monitored and restricted.
B. Alleged Trade Secret Outside the Aluminum Can Business
21. Plaintiff's Exhibit 6 is a list of files found in a pen drive (a portable electronic device that stores computer files) belonging to Defendant Cox.
22. Plaintiff selected the file mentioned on line 141 (File 141) of Exhibit 6, ESCA 93-4, as the trade secret unrelated to the aluminum can business.
23. File 141 of Exhibit 6 is a surface analysis of the film left on metal coils after treatment with a Henkel corrosion-preventative pretreatment chemical mix.
24. Henkel's Technical Director, Andrew Hatch, characterized the analysis contained in File 141 as proprietary, and the analysis was stored in a password-protected database, where access was closely monitored and restricted.
VI. Evidence of Misappropriation of Aluminum Can Alleged Trade Secret
25. Cox admitted he was using a copy of Henkel's Postlube formula to create his own formula after he began work at Chemtool, and that he was doing so on his Chemtool computer.
26. Cox said Exhibit 8 was not a file on the three CDs he gave to a Chemtool vice-president, Stragus, but he also stated that he did not know the content of those CDs. He also said he never knowingly sent or gave the file to anyone else at Chemtool, but would not rule out the possibility that he sent or gave the file to another person at Chemtool in error.
VII. Evidence of Misappropriation of File 141
27. Cox bought the pen drive while he was employed with Henkel and used it in his work there.
28. Cox stated he downloaded File 141 after a colleague at Henkel asked him to take a look at it, and loaded it on his pen drive for the purpose of returning it to her.
29. Cox kept the pen drive after he left his employment with Henkel and used it after he began work for Chemtool.
30. Cox says he never knowingly gave the file to anyone at Chemtool, but would not rule out having done so accidentally as part of a package of files or a single big file.
31. Cox also admitted that he had plugged the pen drive into a Chemtool machine.
32. File 141 was last accessed and/or duplicated on December 26, 2004.
33. Cox created at least one CD on his home machine on December 26, 2004.
34. Cox stated that after he began work at Chemtool in February of 2005, he gave three CD ROMs to a vice president at Chemtool,[1] but said he didn't know the *902 complete contents of those CDs. He then stated that he believed the CDs contained training materials.
CONCLUSIONS OF LAW
1. This court has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332 and personal jurisdiction over both defendants.
I. Preliminary Injunction Standard
2. Courts must balance four elements when considering granting injunctive relief: (1) likelihood of success on the merits; (2) irreparable harm; (3) the balance of equities; and (4) the public interest. Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.1992).
3. Courts will not normally grant injunctive relief unless both the likelihood of success on the merits and irreparable harm prongs weigh in favor of relief. See, e.g., 13 Moore's Federal Practice § 65.06[1] and [2] (Matthew Bender 3d. ed.).
II. Plaintiff Has Demonstrated a Likelihood of Success on the Merits
4. Plaintiff has demonstrated a likelihood of success on the merits of the trade secret claim by demonstrating a likelihood of success on three prongs: (1) the existence of a trade secret, (2) acquisition of the trade secret in confidence; and (3) unauthorized use or disclosure. Aerospace Am., Inc. v. Abatement Techs., Inc., 738 F.Supp. 1061, 1069 (E.D.Mich.1990), citing Kearns v. Ford Motor Co., 203 U.S.P.Q. 884, 888 (E.D.Mich.1978). This conclusion of law rests on the following conclusions of law below.
5. Under Michigan law, a court may enjoin actual or threatened misappropriation of a trade secret and may compel affirmative acts to protect a trade secret. M.C.L. § 445.1903.
A. Plaintiff will likely succeed in demonstrating that both alleged trade secrets were of the type to qualify as trade secrets under Michigan law.
6. Under Michigan law, a trade secret "means information, including a formula, pattern, compilation, program, device, method, technique, or process," that (1) derives independent economic value from not being generally known to or readily ascertainable by proper means by others who can obtain economic value from its disclosure or use, and (2) is the subject of reasonable efforts to maintain its secrecy. M.C.L. § 445.1902.
7. The formula for Postlube is a formula for a Henkel product. Therefore, I find Plaintiff is likely to succeed in demonstrating that it is information that can qualify as a trade secret.
8. The formula for Postlube was not generally known or ascertainable, as the product had not yet been released. As the formula for an unreleased product, it has independent economic value.
9. The formula for Postlube was stored in a password-protected database at Henkel and employees were required to sign confidentiality agreements.
10. Plaintiff has demonstrated a likelihood of success on the merits as to the classification of the Postlube formula as a trade secret.
11. File 141 contained information that was developed by Henkel about the result of the process of application of one of its products. Therefore, I find Plaintiff is likely to succeed in demonstrating that it is *903 information that can qualify as a trade secret.
12. File 141 contained an analysis conducted by Henkel of the use of a Henkel product that was in circulation. Plaintiff offered testimony that this analysis was proprietary and carried economic value for competitors.
13. Although Defendants offered evidence that companies, including Henkel, conduct analyses of other products on the market, Defendant did not offer any evidence that directly rebutted Plaintiff's testimony about the proprietary nature of the contents of File 141, the analysis of the film left on metal coils by the Henkel product. No evidence was introduced to indicate this information is generally known or readily ascertainable.
14. File 141 was stored in a password-protected database and employees were required to sign confidentiality agreements.
15. Plaintiff has demonstrated a likelihood of success on the merits as to the classification of File 141 as a trade secret.
B. Plaintiff will likely succeed in demonstrating that there was actual or threatened misappropriation of both alleged trade secrets.
16. Misappropriation has two definitions under Michigan law: (1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) disclosure or use of a trade secret of another, without express or implied consent, by a person who knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident, mistake, improper means, or derived from or through a person who owed a duty to maintain its secrecy. M.C.L. 445.1902(b).
17. Plaintiff has demonstrated a likelihood of success on the question of whether Defendant Cox knew or had reason to know that the Postlube formula and File 141 were trade secrets and that he had a duty not to disclose or use it. Evidence of Cox's confidentiality agreement with Henkel, as well as storage of both these files in a password-protected database, provide a basis for such knowledge.
18. Because of the nature of the Postlube formula, and the fact that Cox was a former employee of Henkel who owed a duty to maintain its secrecy, Plaintiff can show a likelihood that Chemtool knew or should have known that such information was acquired by improper means.
19. Cox used the Postlube formula in creation of a Chemtool formula while an employee of Chemtool. Plaintiff has demonstrated a likelihood of success in showing actual misappropriation by Cox of the Postlube formula.
20. Plaintiff has demonstrated a likelihood that there was a threatened[2] misappropriation of the Postlube formula by Chemtool, because Cox was using the secret in the creation of a Chemtool product.
21. Cox retained a copy of File 141 on his pen drive in violation of his confidentiality agreement with Henkel, and plugged that pen drive into his Chemtool laptop, so Plaintiff has demonstrated a likelihood of success on the question of whether Cox knew or should have known that his possession of it was improper.
22. Because Cox was a former employee of Henkel, and the file contained proprietary Henkel information, Plaintiff can *904 show a likelihood that Chemtool knew or should have known that such information was acquired by improper means.
23. Because Cox retained a copy of File 141 and admits using the pen drive on which the file was stored on his Chemtool laptop, Plaintiff has demonstrated a likelihood of success on the question of whether there was a threatened misappropriation of File 141 by both Cox and Chemtool.
III. Plaintiff Has Demonstrated Irreparable Harm
24. "An injury is not fully compensable by money damages if the nature of the plaintiff's loss would make damages difficult to calculate." Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.1992).
25. Because there is evidence of both threatened and actual misappropriation of trade secrets, without injunctive relief, Henkel would likely suffer competitive losses and losses of customer goodwill as a result of Defendants' actions. Such losses are inherently difficult to calculate and are sufficient to support an injunction. 973 F.2d at 512. See also Merrill Lynch, Pierce, Fenner & Smith Inc. v. Ran, 67 F.Supp.2d 764, 779 (E.D.Mich.1999).
IV. Plaintiff Has Demonstrated the Balance of Harms Weighs in Its Favor
26. The terms of the injunction do not prohibit Cox from working for Chemtool without a reduction in salary; the only harm to him comes in the limited manner of not being able to expand on his areas of expertise for the length of the case.
27. The terms of the injunction do not prohibit Chemtool from entering any field of business, merely restraining Chemtool from the aid of a small set of employees (perhaps as few as two) in aiding particular business efforts in competition with Henkel and placing a slight limit on the use of computers for the time it takes to image them.
28. The disclosure of trade secrets could seriously harm Henkel's ability to compete in the marketplace with Chemtool.
29. Weighing these harms, the balance of harms weighs in favor of granting the injunction.
V. Plaintiff Has Demonstrated Public Interest in the Injunction
30. Michigan law explicitly permits injunctions to issue in cases of threatened or actual misappropriation. M.C.L. § 445.1903. The public interests in protecting confidential information and in enforcing valid employment contracts and the non-confidentiality agreements within weigh in favor of issuing the preliminary injunction. See, e.g., Superior Consulting Co., Inc. v. Walling, 851 F.Supp. 839, 848 (E.D.Mich.1994).
VI. No Bond Is Needed
31. Because the terms of the injunction do not prevent Cox from working for the same salary at Chemtool, no bond is needed to compensate Cox for the possibility of an erroneous injunction.
32. Because the terms of the injunction do not prevent Chemtool from engaging in any particular field of business (merely restricting the employees who may do contact certain customers, etc.), no bond is needed to compensate Chemtool for the possibility of an erroneous injunction.
CONCLUSION
The preliminary injunction entered on March 17, 2004, as corrected on March 21, 2004, will stand for the reasons above.
NOTES
[1]  Cox admitted this in his sworn testimony before this Court, on which I have chosen to rely, because I found it more credible than earlier sworn statements by Cox that stated the contrary. Cox stated that he had returned all CDs and other electronic files to Henkel in his sworn deposition (Def.'s Joint Opposition, Ex. 4 at 149-50), and in his brief to this Court, Cox again stated that he returned all electronic files he had of Henkel's to Henkel before this lawsuit was ever filed. (Def.'s Joint Opposition at 11.)
[2]  It is not necessary for me to decide whether Plaintiff has demonstrated a likelihood of success on the question of whether there was an actual misappropriation by Chemtool through the actions of its employee, Cox, because a threatened misappropriation can also be enjoined.


535 F.Supp.2d 33 (2008)
The ST. CROIX CHIPPEWA INDIANS OF WISCONSIN, Plaintiff,
v.
Dirk KEMPTHORNE, et al., Defendants.
Civil No. 07-2210 (RJL).
United States District Court, District of Columbia.
February 22, 2008.
*34 Robert Martin Adler, Gerald Hiroshi Yamada, O'Connor & Hannan, LLP, Washington, DC, for Plaintiff.
Sara E. Costello, Kristofor R. Swanson, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION
RICHARD J. LEON, District Judge.
Before the Court is a motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a) filed by plaintiff, the St. Croix Chippewa Indians of Wisconsin ("St. Croix"), against defendants Dirk Kempthorne, in his official capacity as Secretary of the Department of Interior ("Interior" or "the Department"), and Carl J. Artman, in his official capacity as Assistant Secretary-Indian Affairs at Interior.[1] For the following reasons, the Court DENIES plaintiff's motion for a preliminary injunction.

BACKGROUND
A Statutory Background
Off-reservation fee-to-trust gaming applications, such as the application at issue in this dispute, are governed by (1) Section 5 of the Indian Reorganization Act ("IRA"), 25 U.S.C. § 465, and its implementing regulations at 25 C.F.R. Part 151 and (2) the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 et seq. A request to establish an off-reservation gaming facility must be approved by the Secretary of the Interior ("Secretary") in accordance with IGRA, which provides at 25 U.S.C. § 2719(b)(1)(A) that off-reservation gaming is permitted only if:
[T]he Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands [1] would be in the best interest of the Indian tribe and its members, and [2] would not be detrimental to *35 the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination . . . [2]
The Secretary must also decide whether to exercise his discretion to acquire the land in trust pursuant to IRA and its implementing regulations.[3] The Secretary has delegated decisional authority for off-reservation gaming applications to the Assistant Secrefary-Indian Affairs.
B. Factual Background
In July 2001, St. Croix, together with the Bad River Band of Lake Superior Chippewa Indians, submitted an application to the Midwest Regional Office of the Bureau of Indian Affairs ("BIA") of the Interior for approval of an off-reservation casino to be located in Beloit, Wisconsin. (Am. Compl. ¶¶ 1, 26.) This application (hereinafter "Beloit application") was forwarded to the Central Office of the BIA on January 8, 2007, with a favorable recommendation and remains pending before the BIA. (Am. Compl. ¶ 27.) On July 13, 2007, St. Croix's outside counsel wrote a letter to Assistant Secretary Artman, inquiring when review of the Beloit application would be complete and whether the Part 151 determination would be made before the two-part determination. (Am. Compl. ¶ 28; Adler Aff., Ex. B.) In response, George Skibine, Acting Deputy Assistant Secretary-Policy and Economic Development, wrote in pertinent part:
The [Beloit] application . . . is currently under review in this office and a decision will be made only after an exhaustive arid deliberative review of all relevant criteria, factual information, and legal requirements. We will make a determination on whether to take land into trust pursuant to Part 151 prior to making the two-part secretarial determination under IGRA. We believe that it is the appropriate and logical sequence for the decision-making process. We do not believe that this represents a policy change since the Department has never before specified a particular sequence for making the two decisions involved in this process.
(Adler Aff., Ex. C (hereinafter "Skibine Letter").) It is Interior's decision to make the Part 151 determination prior to making the two-part determination, as described in the Skibine Letter, that plaintiff now challenges. St. Croix contends that this decision is a change in historical practice at Interior and reflects Secretary Kempthorne's alleged personal animus towards off-reservation gaming applications. As a result, plaintiff contends that it is more likely than not that the Beloit application will ultimately be denied.
Accordingly, plaintiff seeks a preliminary injunction to enjoin the defendants from implementing, enforcing or otherwise carrying out Interior's decision to make the Part 151 determination first, and from making any decision or determination with respect to the Beloit application (and similar off-reservation gaming applications filed by other Indian tribes) unless Interior makes the two-part determination first. In short, plaintiff contends that Interior's actions are violative of the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2)(A), (C), (D).[4] (Am. Compl. ¶¶ 57-59, 62-66.)

*36 ANALYSIS
To prevail in a request for a preliminary injunction, a plaintiff "must demonstrate 1) a substantial likelihood of success on the merits, 2) that it would suffer irreparable injury if the injunction is not granted, 3) that an injunction would not substantially injure other interested parties, and 4) that the public interest would be furthered by the injunction." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995). The four factors are balanced on a sliding scale, and a party can compensate for a lesser showing on one factor by making a very strong showing on another factor. Id. at 747. However, "[i]f the plaintiff makes a particularly weak showing on one factor . . . the other factors may not be enough to compensate." Dodd v. Fleming, 223 F.Supp.2d 15, 20 (D.D.C.2002) (citations omitted). Indeed, "if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors." Id. (citing CityFed Fin. Corp., 58 F.3d at 747). For the following reasons, the Court concludes that St. Croix has neither demonstrated irreparable harm nor a likelihood of success on the merits.
A. Irreparable Harm
To obtain injunctive relief, St. Croix must demonstrate that it will otherwise suffer irreparable harm. Our Circuit Court has set a high standard for irreparable injury. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006). While not easily defined, certain factors aid in determining whether the requirement of irreparable harm has been met. Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985). First, the injury must be both "certain and great" and "actual not theoretical." Id. Indeed, "the threatened injury must be of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm, because injunctions are not intended to prevent injuries neither extant nor presently threatened, but only merely feared." Ass'n of Flight Attendants-CWA AFL-CIO v. Pension Benefit Guar. Corp., 372 F.Supp.2d 91, 101 (D.D.C.2005) (quotations and citations omitted). "Even more important, the plaintiffs must show that the injury will be impossible to correct or redress after it occurs: the possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm." Found. Health Fed Services v. United States, 1993 WL 738426, at *2 (D.D.C.1993) (quotations and citations omitted); see also Wis. Gas Co., 758 F.2d at 674. Finally, economic loss does not, in and of itself, constitute irreparable harm. Wis. Gas Co., 758 F.2d at 674 ("Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough.").
Here, St. Croix alleges that it will suffer "irreparable harm" if Interior is permitted to make the Part 151 determination first because doing so presumably will somehow cause Interior to proceed thereafter to "deny the Beloit application as well as a number of other pending off-reservation casino applications submitted by other Tribes." (Pl.'s Mem. Supp. [Dkt. # 4] 11.) Such a denial, plaintiff contends, would mean the loss of "approximately $1 million which the St. Croix has spent to date in its efforts to have a Beloit casino" and the revenue that the St. Croix anticipated generating from the Beloit casino. (Id. at 25.)
Unfortunately for plaintiff, however, its position is based entirely on pure speculation about how the Department will rule on the Part 151 determination, and ultimately, its application. Such speculation is legally insufficient to constitute the *37 irreparable harm necessary to warrant injunctive relief. See, e.g., Ass'n of Flight Attendants-CWA, 372 F.Supp.2d at 101 (where plaintiff's alleged injuries were dependent upon termination proceedings that had not yet occurred, the court held that "none of the [alleged] injuries is sufficiently imminent to warrant a preliminary injunction"); Power Mobility Coalition v. Leavitt, 2005 WL 3312962, at *11 (D.D.C.) (where plaintiff's injuries were based on the prediction that its claims would be denied under newly promulgated regulations, court found no irreparable harm). Moreover, St. Croix has made no showing that its injuries cannot be redressed in the ordinary course of litigation.[5] Indeed, because plaintiff's injuries are purely economic in nature, St. Croix can be made whole at a later time if and when the defendants' conduct is determined to be invalid. Accordingly, the Court finds that plaintiff has failed to demonstrate a substantial likelihood of irreparable injury.
B. Likelihood of Success on the Merits
A preliminary injunction is additionally unwarranted in this case because St. Croix is unlikely to succeed on the merits. Indeed, plaintiff has failed to even demonstrate that the Court has the necessary authority under the APA to reach the merits of this dispute. How so?
A district court's authority to review the conduct of ah administrative agency is limited to cases challenging "final agency action." See 5 U.S.C. § 704. An agency action is deemed final if it is "definitive" and has a "direct and immediate . . . effect on the day-to-day business" of the party challenging the agency action. F.T.C. v. Standard Oil Co., 449 U.S. 232, 239, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). Final agency action "mark[s] the consummation of the agency's decision-making process" and is "one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotations and citations omitted). Here, St. Croix contends that the Skibine Letter constitutes a final agency action because it reflected Interior's decision to make the Part 151 determination prior to the two-part determination and "was expected to have concrete legal significance to the Tribes." (Pl.'s Mem. Supp. 16.) Plaintiff's claims that the Skibine Letter amounts to a final agency action, however, are unsubstantiated and without merit.
The Skibine Letter clearly does not "mark the consummation of the agency's decisionmaking process," Bennett, 520 U.S. at 178, 117 S.Ct. 1154 (quotations and citations omitted), as Interior "has not yet made any determination or issued any order imposing any obligation on [St. Croix], denying any right of [St. Croix], or fixing any legal relationship." Reliable Automatic Sprinkler Co. v. Consumer Product Safety Com'n, 324 F.3d 726, 732 (D.C.Cir. 2003). Simply stated, the Skibine Letter does hot make an ultimate determination on the Beloit application, nor does it impose any additional procedures or obligations on St. Croix. (See Hr'g Tr. 39:24-40:8.) Additionally, the fact that judicial review may be completely obviated when Interior completes its review of the Beloit application further emphasizes the prematurity of plaintiff's claim. See Beverly Enterprises, Inc. v. Herman, 50 F.Supp.2d 7, 12 (D.D.C.1999) ("When completion of an *38 agency's processes may obviate the need for judicial review, it is a good sign that an intermediate agency decision is not final") (quoting DRG Funding Corp. v. Secretary of Hous. & Urban Dev., 76 F.3d 1212, 1215 (D.C.Cir.1996)). In fact, St. Croix conceded as much at oral argument when it acknowledged that this case will be entirely moot if its application is granted, and, on the other hand, if it is denied, St. Croix will be back in federal court seeking judicial review of Interior's decision. (See Hr'g Tr. 42:17-18; 49:21-50:11.) Accordingly, the Court concludes that St. Croix is unlikely to succeed on the merits because the Skibine Letter is not a final agency action that warrants judicial review at this time.

CONCLUSION
For the foregoing reasons, this Court DENIES plaintiff's Motion for Preliminary Injunction. An appropriate Order will issue with this Memorandum Opinion.
NOTES
[1]  On January 14, 2008, plaintiff filed a second motion for preliminary injunction. (See Pl.'s Second Mot. Prelim. Inj. [Dkt. # 20-2].) All briefing on plaintiff's second motion has been stayed until entry of orders on plaintiff's original motion for preliminary injunction, filed on December 10, 2007, and defendants' motion to dismiss, filed on December 21, 2007. (See Stipulation and Order [Dkt. # 30].) The only motion addressed in this Opinion and the accompanying Order is plaintiff's original motion for preliminary injunction.
[2]  The Court refers herein to the determination under IGRA as the "two-part determination."
[3]  The Court refers herein to the determination under, IRA and its implementing regulations as the, "Part 151 determination."
[4]  For purposes of the motion for preliminary injunction presently before the Court, plaintiff does not rely on its due process and trust responsibilities claims alleged in its Amended Complaint. (See Pl.'s Reply Mem. [Dkt. # 16] 19.)
[5]  St. Croix has presented no explanation  beyond the possible additional cost of litigating the ultimate denial of the Beloit applications why it would be any worse off if the review of its claims were to proceed along an ordinary litigation schedule. (See Hr'g Tr. 19:6-20:9.)


People v Mess (2020 NY Slip Op 04671)

People v Mess

2020 NY Slip Op 04671

Decided on August 20, 2020

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 20, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND DEJOSEPH, JJ.

400 KA 16-02127

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vCHARLENE M. MESS, DEFENDANT-APPELLANT.

NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (ADAM W. KOCH OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, SPECIAL PROSECUTOR, BATAVIA (WENDY EVANS LEHMANN OF COUNSEL), FOR RESPONDENT.

	Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered June 23, 2016. The judgment convicted defendant upon her plea of guilty of manslaughter in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of manslaughter in the first degree (Penal Law § 125.20 [1]). We reject defendant's contention that her waiver of the right to appeal was invalid. The plea colloquy establishes that defendant knowingly, voluntarily, and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]). Inasmuch as defendant's valid waiver of the right to appeal specifically included a waiver of the right to challenge the severity of the sentence and defendant was informed of the maximum sentence County Court could impose in its discretion, the waiver encompasses her challenge to the severity of her sentence (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Lasher, 151 AD3d 1774, 1775 [4th Dept 2017], lv denied 29 NY3d 1129 [2017]).
Entered: August 20, 2020
Mark W. Bennett
Clerk of the Court


857 F.2d 46
12 Fed.R.Serv.3d 57
UNITED STATES of America, Plaintiff, Appellee,v.The PROCEEDS OF SALE OF 3,888 POUNDS ATLANTIC SEA SCALLOPS,etc., Defendant, Appellee.Appeal of Arne JENSEN and A & E Fisheries, Inc., Claimants,Appellants.
No. 88-1309.
United States Court of Appeals,First Circuit.
Submitted July 20, 1988.Decided Sept. 21, 1988.

Joseph J. Altieri, Providence, R.I., Edward V. Cattell, Jr., Philadelphia, Pa., and Nancy E. Sim, Pleasantville, N.J., on brief, for appellants.
Roger J. Marzulla, Asst. Atty. Gen., Peter R. Steenland, Jr., Atty., Dept. of Justice, and Lee M. Kolker, Atty., Dept. of Justice, Washington, D.C., on brief, for appellees.
Before COFFIN, BOWNES and SELYA, Circuit Judges.
COFFIN, Circuit Judge.

1
This is an appeal from the district court's refusal (1) to dismiss a forfeiture action brought by the government and (2) to set aside a default judgment subsequently entered against appellants in that action.  Because we find no abuse of discretion, we affirm.

I.

2
On August 18, 1986, the government seized 3,888 pounds of scallops belonging to appellants-claimants, Arne Jensen and A & E Fisheries, Inc.  [hereinafter appellant or claimant], pursuant to the Magnuson Fishery Conservation and Management Act, 16 U.S.C. Sec. 1857(1)(A), (G).  In December of that year, the government filed a forfeiture action in district court in New Jersey to obtain title to the value of those scallops.  The government subsequently dismissed its complaint with prejudice in late March, but a few days later, on March 27, filed another forfeiture complaint in district court in Rhode Island.  According to the government, both the summons in the Rhode Island action and Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims required appellant to file a claim within 10 days of receiving service and an answer within 20 days of filing his claim.  Claimant was served on April 9 but did not respond until May 8 when he filed a combined "answer and claim."    On that same day, claimant also filed a motion to dismiss the government's complaint on the ground that the government previously had dismissed an identical complaint with prejudice in another jurisdiction.  The district court's denial of that motion is one of the issues on appeal.

3
On May 20, 1987, the government moved to strike appellant's claim and answer, principally on the ground that it was untimely.  On June 23, the district court, having received no response from appellant, granted the government's motion to strike as unopposed, pursuant to Local Rule 12(a)(2) ("no objection having been timely filed").  A week later, the government filed a motion for default on the ground that appellant's claim and answer had been stricken.  Claimant never responded to the government's motion for default but did file a motion to vacate the court's order striking his claim and answer.1   The district court referred both motions to the magistrate, who refused to set aside the court's order and granted the government's motion for default, finding no satisfactory reason for claimant's tardiness.  The magistrate also noted sua sponte that claimant had on two occasions violated Local Rule 5(d) requiring the signature of local counsel on all pleadings.

4
In response to claimant's objections, the district court remanded the case to the magistrate for reconsideration.  The magistrate affirmed her earlier recommendation, basing her decision only on claimant's failure to respond on time or at all to the government's motions and not on the absence of local counsel's signature.  The district court adopted the magistrate's recommendation and entered a default judgment.

5
Appellant raises two issues on appeal.  First, he argues that the district court abused its discretion in refusing to set aside the default judgment pursuant to Federal Rule of Civil Procedure 60(b)(1).  Second, he puts forth two arguments relating to the government's voluntary dismissal of an identical complaint in New Jersey.  He contends that the district court abused its discretion in refusing to dismiss this action since the government's earlier complaint in New Jersey had been dismissed with prejudice.  In the alternative, he argues that if the government's mistake in dismissing its complaint with prejudice can be overlooked, justice demands that his mistake also be forgiven.

II.

6
Rule 60(b)(1) permits a district court to set aside an order or judgment upon a finding of "mistake, inadvertence, surprise, or excusable neglect."    To prevail on a Rule 60(b) motion, the party seeking to have the judgment vacated bears the heavy burden of showing both a good reason for the default and the existence of a meritorious defense.   American & Foreign Ins. Ass'n v. Commercial Ins., 575 F.2d 980, 983 (1st Cir.1978).  In reviewing such motions, the district court has broad discretion.   Id. at 982.  We review only for an abuse of that discretion.  Id.;  see also Corey v. Mast Road Grain and Bldg. Materials Co., 738 F.2d 11, 12 (1st Cir.1984).

7
In this case, claimant violated Local Rule 12(a)(2) by failing to respond within 10 days to the government's motion to strike his claim and answer.  In addition, he failed to respond at all to the government's subsequent motion for default.  The district court based its refusal to set aside its order on both of these violations, but in its analysis, focused solely on the first of the two errors.  We also focus only on that error since "[i]t is well settled that when reviewing a district court's order for abuse of discretion, '[i]f a single ground supports the ... order, it is not reversible.' "   Corey, 738 F.2d at 13 (quoting Juneau Square Corp. v. First Wisconsin National Bank, 624 F.2d 798, 809 (7th Cir.1980)).

8
Claimant's excuse for missing the filing deadline is that he relied on erroneous advice from local counsel.  He argues that this reliance, combined with the absence of substantial prejudice to the government and any culpability on his part (as opposed to his attorney's), requires a finding of excusable neglect or mistake under Rule 60(b)(1).

9
We need not decide whether reliance on local counsel would ever require a finding of excusable neglect because in this case we believe the reliance was unreasonable.  Local counsel advised lead counsel that there was no specific date by which their opposition papers had to be filed.  This advice should have been viewed with at least some skepticism by an experienced attorney.  As the magistrate noted, "[t]he concept of time limitations for filing is a basic one."

10
Claimant further argues that the sanction of default was too harsh considering the relative lack of prejudice to the government and the absence of client blameworthiness.  While we agree that both of these are legitimate factors for a district court to consider in ruling on a 60(b) motion, we decline to hold that they require a finding of excusable neglect.  This circuit has followed the teachings of the Supreme Court in Link v. Wabash R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 (1962), and "turned a deaf ear" to the claim that the client should not suffer for the attorney's sins.   Damiani v. Rhode Island Hosp., 704 F.2d 12, 16-17 (1st Cir.1983);  Parrilla-Lopez v. United States, 841 F.2d 16, 20 (1st Cir.1988).   See also Kaercher v. Trustees of Health & Hosp. of Boston, 834 F.2d 31, 34 (1st Cir.1987) (noting client blameworthiness but stating attorney culpability sufficient).  We also agree with the district court that a default judgment may stand even where there has been no showing of substantial prejudice to the party benefiting from the default.  A district court simply may insist upon compliance with its local rules.   Corey, 738 F.2d at 12 (failure to comply with local rule requiring opposition papers within 10 days).

11
Because we conclude that the district court did not abuse its discretion in failing to find excusable neglect, we need not decide whether claimant's defense is meritorious.

III.

12
We next consider the issues relating to the government's dismissal with prejudice of its earlier complaint in New Jersey.  Claimant argues only halfheartedly that the court abused its discretion in refusing to dismiss the government's complaint.  We think it clear that the district court was within its discretion in not dismissing the complaint before the government had an opportunity to correct its mistake in New Jersey.  Finally, claimant suggests that the district court was obligated out of a sense of fairness to excuse his mistakes because it excused the government's.  We do not, however, believe it was necessary for the court to conform its rulings to some abstract notion of symmetry.  As long as each ruling was within its discretion, we have no cause to reverse.

13
AFFIRMED.

1
 On June 30, appellant finally filed an answer to the government's motion to strike, contending that his claim was in fact timely under both the summons and Rule C(6), and therefore should not be struck.  The district court did not consider arguments regarding the proper interpretation of either the summons or Rule C(6) in ruling on the motion.  It granted the motion to strike simply because, as of June 23, appellant had not opposed it, and therefore was in violation of Local Rule 12(a)(2) requiring opposition papers within 10 days.  The subsequent denial of appellant's motion to set aside the court's order was also based only on his noncompliance with Local Rule 12(a)(2).  See infra.    The provisions of the summons and Rule C(6) are therefore not before us, nor is the court's uncontested ruling that appellant violated Local Rule 12(a)(2).  We must decide only whether the district court abused its discretion under Fed.R.Civ.P. 60(b)(1) in refusing to excuse appellant's noncompliance with its local rules.   See Pagan v. American Airlines, 534 F.2d 990, 992-93 (1st Cir.1976) (denial of 60(b) motion raises only order of denial and not underlying judgment)


863 F.2d 880
Chevronv.Rocky Mountain Resources*
NO. 88-3369
United States Court of Appeals,Fifth Circuit.
DEC 09, 1988

1
Appeal From:  E.D.La.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


               This opinion is subject to revision before final
                      publication in the Pacific Reporter

                               2017 UT 44

                                  IN THE

     SUPREME COURT OF THE STATE OF UTAH

                          STATE OF UTAH,
          In the interest of K.T., C.T., Ka.T., and Ca.T.,
              children under eighteen years of age.

                              B.T. and S.T.,
                               Appellants,
                                     v.
                            STATE OF UTAH,
                               Appellee.

                     Nos. 20160410, 20160386
                      Filed August 8, 2017

          On Certification from the Court of Appeals

               Third District Juvenile, Salt Lake
             The Honorable Charles D. Behrens
           Nos. 1125972, 1125975, 11255977, 1125980

                               Attorneys:
     Sheleigh A. Harding, Salt Lake City, for appellant B.T.
    Jordan Putnam, Cottonwood Heights, for appellant S.T.
Sean D. Reyes, Att’y Gen., Carol L.C. Verdoia, John M. Peterson,
         Asst. Att’y Gens., Salt Lake City, for appellee
 Martha Pierce, Salt Lake City, for Office of Guardian ad Litem

  JUSTICE PEARCE authored the opinion of the Court, in which
     CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
        JUSTICE DURHAM, and JUSTICE HIMONAS joined.

JUSTICE PEARCE, opinion of the Court:
                     In the Interest of K.T., et al.
                        Opinion of the Court

                          INTRODUCTION
    ¶1 At the disposition hearing in their child welfare case,
appellant parents stipulated to a set of facts, including a statement
that one of the family’s children had “disclosed that [the mother] has
spanked and disciplined her and her siblings with a belt.”
Appellants also stipulated that the same child had disclosed that the
father “has spanked the children with a belt historically.” The
parents contend that this was an insufficient factual basis to permit
the juvenile court to conclude that they had harmed the children
within the meaning of the Utah Code. We agree that the juvenile
court needed additional evidence before it could conclude by clear
and convincing evidence that the children had been harmed. We
reverse.
                          BACKGROUND
   ¶2 This case involves four children—K.T., C.T., Ka.T., and Ca.T.
Appellant S.T. (Mother) is the mother of all four children. Appellant
B.T. (Father) is the biological father of the younger two—Ka.T. and
Ca.T. Father is the stepfather of the oldest two—K.T. and C.T.
    ¶3 The State filed a Verified Petition in February 2016 seeking
to adjudicate the children as abused and neglected under Utah Code
section 78A-6-105 (2008). 1 Following a preliminary shelter hearing,
the juvenile court placed K.T., C.T., Ka.T., and Ca.T. into the custody
of the Division of Child and Family Services (DCFS).
    ¶4 The parties stipulated to a number of findings of fact. One
stipulated finding indicated that “[K.T.] also disclosed [Mother] has
spanked and disciplined her and her siblings with a belt. The mother
uses a black belt with rhinestones. [Father] has spanked the children
with a belt historically.” 2
   ¶5 Based on the stipulated findings of fact, the judge
concluded:

_____________________________________________________________
   1 This section of the Utah Code has since been amended. The
parties cite, and we will therefore reference, the 2008 version of the
code.
   2 Both Father and Mother responded to this fact under Utah Rule
of Juvenile Procedure 34(e). All parties acknowledge that Mother
and Father stipulated to this fact.

                                   2
                         Cite as: 2017 UT 44
                        Opinion of the court

      1. Hitting a child with a belt or strap or another
      object is abuse.
      2. The pain caused by the striking is non-accidental
      harm.
      3. The court cannot envision a scenario where
      striking or hitting a child, of any age, would be
      appropriate or reasonable discipline.
      4. The court can envision a parent, as a child, being
      hit with a belt or strap as discipline at that time, in
      that day and age, many years ago that type of
      discipline was deemed appropriate and perfectly
      reasonable.
      5. As a society we’ve progressed to the point where
      it’s not acceptable to strike a child and certainly to
      strike a child, of any age, with an object, a belt, a
      strap, or a paddle or anything of that nature.
      6. We’ve evolved beyond it being appropriate to
      strike a child with an object.
      7. The simple striking of the child with a belt caused
      pain and is abuse.
    ¶6 The juvenile court determined that Mother and Father
(collectively Parents) abused the children under Utah Code section
78A-6-105.
    ¶7 Parents now appeal that conclusion. They contend that the
stipulated facts do not support an abuse determination. More
specifically, they argue that the juvenile court erred when it
concluded that spanking a child with a belt, without any additional
proof of harm, constitutes abuse within the meaning of Utah law.
                      STANDARD OF REVIEW
    ¶8 We review a juvenile court’s conclusions of law based upon
stipulated facts for correctness. State ex rel. B.T., 2009 UT App 182,
¶ 5, 214 P.3d 881.
                              ANALYSIS
   ¶9 To find abuse under Utah law, a court must find harm. Utah
Code section 78A-6-105(1)(a) defines “abuse,” in relevant part, as
“nonaccidental harm of a child” or “threatened harm of a child.”
And, in the 2008 version of the Code the parties cite, “harm” means,

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                     In the Interest of K.T., et al.
                         Opinion of the Court

in relevant part, “physical, emotional, or developmental injury or
damage.” Id. § 78A-6-105(19). ”If, at the adjudication hearing, the
[juvenile] court finds, by clear and convincing evidence, that the
allegations contained in the petition are true, it shall conduct a
dispositional hearing.” Id. § 78A-6-311(1). 3
    ¶10 Parents argue that the State failed to put evidence before the
court that would allow it to conclude that the discipline Parents
administered resulted in harm. “Simply put,” they argue, “there are
no stipulated facts regarding ‘harm.’” Parents are correct. The State
failed to introduce evidence that the parental discipline had harmed
the children and left the court to speculate from the stipulated facts
that the children had been harmed.
    ¶11 The juvenile court attempted to bridge the evidentiary gap
with the conclusion that “[a]s a society we’ve progressed to the point
where it’s not acceptable to strike a child and certainly to strike a
child, of any age, with an object, a belt, a strap, or a paddle, or
anything of that nature.” 4 Although not explicit in the juvenile
court’s order, it appears from the argument’s transcript that the court
may have relied on State ex rel. C.I. to reach that decision. 2009 UT
App 141U (per curiam). In C.I., the “[m]other hit C.I. on his arms
with a belt, and also hit C.I. near his eye.” Id. at *1. The record
indicated that, as a result of the blows, C.I. suffered a “black eye and
bruising.” Id. The mother argued that her actions did not constitute
abuse because she “reasonably disciplined him.” Id. The court
rejected the mother’s argument and found that “[s]triking a child
_____________________________________________________________
   3The clear and convincing standard demands the introduction of
evidence that makes “the existence of the disputed facts . . . very
highly probable.” Lovett v. Cont’l Bank & Tr. Co., 286 P.2d 1065, 1067
(Utah 1955). Translated to the case before the juvenile court, the State
needed to present evidence that would allow the court to conclude
that it was “very highly probable” that the children had been
harmed. Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶ 24, 270
P.3d 430 (citing Lovett, 286 P.2d at 1067).
   4 The juvenile court also reasoned that it could not “envision a
scenario where striking or hitting a child, of any age, would be
appropriate or reasonable discipline.” The parties did not argue, and
we will not address, any reasonable discipline exception under Utah
Code section 78A-6-105(1)(b)(i).

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                          Cite as: 2017 UT 44
                          Opinion of the court

with a belt does not constitute the use of reasonable discipline as it is
an ‘unreasonably cruel punishment.’” Id. (citing State ex rel. L.P., 1999
UT App 157, ¶ 8, 981 P.2d 848). The court in C.I. affirmed the
juvenile court’s order because its determination that C.I. had been
abused was not contrary to “the clear weight of the evidence.” Id.
The court of appeals’ seemingly definitive statement about striking a
child with a belt may have given the juvenile court in this case
comfort in announcing that “[h]itting a child with a belt or strap or
another object is abuse.”
    ¶12 State ex rel. L.P., on which the per curiam C.I. relies, was not
so definitive. Rather, L.P. listed a number of factors that a juvenile
court should consider before determining whether a child has been
abused within the meaning of the statute. 1999 UT App 157, ¶ 8.
“Such factual findings may include, but are not limited to, the
following: . . . evidence of any bruises, contusions, or abrasions on
the child; . . .[and] evidence of unreasonably cruel punishment such
as beatings with a belt . . . or other object.” Id. L.P. clarified that
“[n]one of the factors listed above is necessarily dispositive . . . .
Instead, these evidentiary factors should guide the juvenile court as
it exercises its broad discretion in making [an abuse] determination.”
Id.
    ¶13 Moreover, we do not interpret C.I. as imposing a rule that
every use of any object to discipline a child constitutes per se abuse.
Although the C.I. court stated that striking a child with a belt cannot
be reasonable discipline, the court in C.I. did not rely solely on the
mother’s use of a belt to conclude that C.I. had been harmed. Rather,
just as it did in L.P., the court of appeals relied on additional findings
that spoke to the harm C.I. had suffered. For example, the court
noted C.I.’s black eye and bruising. C.I., 2009 UT App 141U at *1.
    ¶14 To be clear, in this case the State would not have needed to
forward much additional evidence to allow the juvenile court to
infer harm. Had there been evidence of the effects of the spanking—
as in C.I.—the court may have been able to conclude that the
children had been harmed. Or, if there had been additional evidence
about the particular way that Mother “uses a black belt with
rhinestones,” the juvenile court could have inferred the existence of
harm. But without such information, the court was presented with
two options: improperly speculate about what the spankings and
discipline mother administered looked like, or rely on a per se rule
that harm occurs any time a child is struck with any object. The
juvenile court opted for the per se rule.

                                    5
                     In the Interest of K.T., et al.
                         Opinion of the Court

    ¶15 The rule the juvenile court articulated—that “[h]itting a
child with a belt or strap or another object is abuse”—is overbroad
and alters the statutory meaning of “abuse.” See UTAH CODE § 78A-6-
105(1). The juvenile court’s per se rule expands the definition of
“abuse” to capture the myriad ways a parent might “hit a child”
with “another object” that would not actually harm the child. For
instance, under the rule the juvenile court announced, a parent
throwing a pillow or a rolled up pair of socks at a child would be
considered per se abusive. Hitting a child with a Nerf sword
playfully as part of a game would also meet the definition. And
although those situations are different than those confronting the
juvenile court in this case, the need to resort to a per se rule exposes
the problem with the factual record before the juvenile court.
Although we might speculate that Mother was doing more than
spanking her children with the belt lightly so that it did not cause
physical or emotional injury within the meaning of the statute, we
don’t know that.5 And we don’t know that with the level of certainty
needed to meet a clear and convincing evidentiary standard.
    ¶16 In other words, while use of an object to spank or discipline
a child might provide persuasive evidence that the child experienced
harm, that evidence may not be dispositive. As the court of appeals
has noted, “there are a myriad of circumstances with countless
permutations, which may or may not justify intervention of the
juvenile court.” L.P., 1999 UT App 157, ¶ 7. Because of the many
ways adults interact with children, juvenile courts need the
flexibility to examine situations as a whole. And it is incumbent
upon the State to present the evidence the juvenile courts need to
accurately assess the situation. Failure to provide that evidence
invites speculation and increases the potential for reaching an
erroneous conclusion.
    ¶17 Parents stipulated that “[K.T.] also disclosed [Mother] has
spanked and disciplined her and her siblings with a belt. The mother
uses a black belt with rhinestones. [Father] has spanked the children
with a belt historically.” We have before us no additional relevant
facts demonstrating harm. The juvenile court made no findings that
inform us whether the children experienced any “physical,
_____________________________________________________________
   5  The statute defines harm as “physical, emotional, or
developmental injury or damage.” UTAH CODE § 78A-6-105(19).

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                        Cite as: 2017 UT 44
                       Opinion of the court

emotional, or developmental injury or damage.” See UTAH CODE
§ 78A-6-105(19). It is unclear how hard Parents hit the children,
whether the children suffered emotional or physical pain, and
whether the children were injured. Without more, the juvenile court
was forced to rely on a per se rule that has the potential to sweep
non-abusive behavior into its net.
                           CONCLUSION
    ¶18 The juvenile court erred when it concluded that the
stipulated facts supported an abuse determination. We reverse.

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