                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                 September 25, 2007
                             FO R TH E TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

    SEC URITIES A N D EX CH A N GE
    C OM M ISSIO N ,

             Plaintiff-Appellee,

     v.                                                 No. 06-4130
                                                  (D.C. No. 2:02-CV-1086)
    A LLEN Z. WO L FSO N ,                               (D. Utah)

             Defendant-Appellant,

          and

    M ERVYN A. PHELAN, SR.; DAVID
    W OLFSON; ROBERT H. POZNER;
    M ERVYN A. PHELAN, JR.; CRAIG
    H. BROW N; JOHN W .
    C RU IC KSH A N K , JR .; FEN G SHUI
    CONSU LTANTS, formerly known as
    W orld Alliance Consulting; A-Z
    PROFESSION AL CON SULTAN TS
    RETIREM ENT TRU ST; AZW
    IRREV O CA BLE TR UST; SA LOM ON
    GR EY FINA NC IAL; AN GELO
    PAU L KO UPAS; KY LE ROW E;
    CH RISTOPHER RO UN DTR EE,

             Defendants.

                             OR D ER AND JUDGM ENT *

*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
                                                                       (continued...)
Before TA CH A, Chief Judge, KELLY and O’BRIEN, Circuit Judges.

      Allen Z. W olfson appeals from the district court’s order granting summary

judgment to the Securities and Exchange Commission (SEC) in this civil

enforcement action. Although SEC’s counsel entered an appearance, the SEC did

not file a responsive brief in this appeal. M r. W olfson has requested that default

be entered against the SEC for failure to respond. W e deny his motion for entry

of default and affirm the district court’s grant of summary judgment.

                                      FACTS

      The summary judgment evidence presents the following material facts.

M r. W olfson, working with certain other defendants named in the SEC’s

complaint, played a key role in a fraudulent scheme designed to artificially inflate

the stock price of a corporation known as Freedom Surf, Inc. Over the course of

several months, M r. W olfson attempted to create the false appearance of market

demand for the stock by using nominees under his control to call in ever-higher

bid and ask prices for the stock. In fact, the demand for the stock was generated

by trading from accounts controlled by M r. W olfson. After the price had been

artificially inflated by these spurious trades, M r. W olfson delivered 25,000 shares

*
 (...continued)
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                         -2-
to defendant Salomon Grey Financial Corporation, at a discount of 50% from the

current bid price. Salomon Grey then marked up the price of the shares and sold

them to investors before the share price crashed.

      In a criminal action in the Southern District of New York, M r. W olfson

pleaded guilty to criminal charges arising from this fraudulent scheme. He

admitted under oath in his criminal proceedings that he agreed to take steps to

inflate the price of Freedom Surf stock. According to his sworn statement in

allocution, he agreed to raise the price of the stock in order to defraud investors

and in order to enrich himself as well as others.

      The SEC brought this civil enforcement action against M r. W olfson and the

other defendants who allegedly engaged in the price manipulation of Freedom

Surf stock. It charged that M r. W olfson had violated Section 17(a) of the

Securities Act of 1933, 15 U.S.C. § 77q(a); Section 10(b) of the Securities

Exchange Act of 1934, 15 U.S.C. § 78j(b); and Rule 10b-5 thereunder, 17 C.FR.

§ 240.10b-5. After granting summary judgment for the SEC against M r. W olfson,

the district court entered a final judgment (1) enjoining M r. W olfson from

violating the securities law s and (2) ordering disgorgement of wrongful profits

and payment of interest and penalties.

                                          -3-
                                    ANALYSIS

      1. Standard of Review

      W hen reviewing the district court’s summary judgment order, we view the

evidence in the light most favorable to the non-moving party. Herrera v. Lufkin

Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007). “Summary judgment is

appropriate ‘if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)).

      2. Due Process

      On appeal, M r. W olfson first contends that the district court denied him due

process by “just skipping the trial and adjudicating [him] guilty.” Aplt. Br. at 2.

He claims that the district court scheduled a trial but issued a final judgment

“[w]ithout a hearing or notice.” Id.   The record does not bear out M r. W olfson’s

contentions.

      M r. W olfson had ample notice, notwithstanding the scheduling of a trial

date, that the district court was considering the SEC’s motion for sum mary

judgment. SEC filed its motion for summary judgment on February 15, 2006.

Contemporaneously with the filing of this motion, it mailed a notice to the pro se

defendants, including M r. W olfson, informing them that it had “asked the C ourt

to decide this case without a trial, based on written materials[.]” R., Vol. IV,

                                         -4-
doc. 152, at 1 (emphasis added). On February 27, 2006, M r. W olfson requested

an extension of time in which to respond to the motion for summary judgment.

On M arch 6, he filed an answer to SEC’s complaint and three affidavits with the

district court.

       On M arch 9, the district court granted M r. W olfson the requested extension

and ordered him to file a response, if any, to SEC’s motion for summary judgment

on or before April 28. Four days later, he filed his “Affidavit in Support of Trial

by Jury and Statement of Facts W hich [sic] Genuine Issues Exist.” Id., doc. 181.

On April 13, 2006, the district court held a telephone status conference in which

M r. W olfson participated. The minute entry for this conference indicates that the

district court informed the participants that the pending motion for summary

judgment would be decided on the briefs and that it anticipated a ruling in about

three weeks. On M ay 5, 2006, the district court entered its memorandum decision

granting the SEC’s motion for summary judgment.

       In sum, M r. W olfson had notice and adequate opportunity to submit

evidence in opposition to the SEC’s motion for summary judgment. The district

court was not required to hold a trial merely because it scheduled a trial date.

Judicial efficiency is served when a district court schedules a trial but also

entertains dispositive motions that may obviate the need for trial. Finally, a

trial-type hearing on a summary judgment motion is not required. See Geear v.

Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th Cir. 1988) (stating that in

                                          -5-
consideration of summary judgment motion “the parties’ right to be heard may be

fulfilled by the court’s review of the briefs and supporting affidavits and

materials submitted to the court.”).

      M r. W olfson also contends that he had a Fifth Amendment right to a jury

trial. The right to a jury trial in federal court in a civil case actually is governed

by the Seventh A mendment, which states that “[i]n Suits at common law, where

the value in controversy shall exceed twenty dollars, the right of trial by jury

shall be preserved[.]” B ut it is w ell settled that summary judgment, properly

entered in accordance with the federal rules, does not violate the Seventh

Amendment. See Shannon v. Graves, 257 F.3d 1164, 1167 (10th Cir. 2001) (“The

Seventh Amendment is not violated by proper entry of summary judgment

because such a ruling means that no triable issue exists to be submitted to a

jury.”). M r. W olfson has failed to show that summary judgment was

inappropriately granted and his constitutional argument therefore fails.

      3. M erits of Sum mary Judgm ent O rder

      M r. W olfson also makes several arguments on the merits concerning the

entry of summary judgment against him. He first argues that summary judgment

was inappropriate because he filed a motion in the New York federal criminal

proceeding seeking to withdraw his guilty plea. He further contends that the plea

should have been set aside because his criminal attorney gave him “bad advice”

and was under a conflict of interest. Aplt. Br. at 3. M r. W olfson does not assert

                                           -6-
that he was actually permitted to withdraw his plea. He fails to demonstrate that

the district court in this action improperly relied on his conviction and admissions

in the prior criminal proceeding. M oreover, to the extent he complains that his

attorney in this action provided him with inadequate representation, “[t]he general

rule in civil cases is that the ineffective assistance of counsel is not a basis for

appeal or retrial.” Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006).

      M r. W olfson further argues that the only fraud committed in this case

involved false statements made by the former president of Freedom Surf

concerning the value of that company and its stock. He fails to dispute the

evidence that he personally manipulated the value of the stock to produce an

inflated price through bogus sales. During allocution in the prior criminal

proceeding, M r. W olfson admitted that he took these actions knowingly with the

intent to defraud investors. R., Vol. V, doc. 156, tab “B,” at 20. The fact that

there may have been other fraud committed in connection with the scheme is

irrelevant to M r. W olfson’s own guilt.

      M r. W olfson also argues that the disgorgement and penalties he was

ordered to pay duplicated the $76,000 already paid by his son and another

$76,000 already paid by John Chapman. He contends, without any citation to the

record, that the total loss to investors was only $76,000. The evidence submitted

by the SEC showed that the actual losses to investors resulting from the Freedom

                                           -7-
Surf scheme w ere considerably in excess of $250,000. His argument therefore

lacks merit.

      M r. W olfson contends that he should have received a jury trial because the

SEC’s witnesses lacked credibility and their lack of credibility would have been

apparent to a jury. His argument is entirely conclusory. He fails to identify who

these w itnesses were and what relevance their testimony had to the summary

judgment determination or would have had at trial. M oreover, the most damning

testimony in this case came from M r. W olfson himself, during his allocution in

the criminal proceeding.

      Finally, M r. W olfson argues that the district court should have made

specific findings concerning disputed and undisputed issues of fact, particularly

concerning the amounts he was ordered to pay. In its summary judgment order,

the district court made specific and adequate findings concerning the factual basis

for the amount of disgorgement, penalties and interest. See R., Vol. VII, doc.

231, at 14-16. M r. W olfson’s argument therefore lacks merit.

      4. M otion for Default Judgment

      As noted, the SEC has not filed a brief in this appeal. M r. W olfson

contends that “default” should be entered against the SEC pursuant to Fed. R.

Civ. P. 55(a). The pertinent rule is not Rule 55, but Fed. R. App. P. 31(c). Rule

31(c) provides that “[a]n appellee who fails to file a brief will not be heard at oral

                                         -8-
argument unless the court grants permission.” There was no oral argument in this

case. M r. W olfson’s motion is therefore denied.

      The judgment of the district court is AFFIRM ED. M r. W olfson’s “Request

to Enter Default and Certification” is denied. His motion to proceed in forma

pauperis is granted.

                                                    Entered for the Court

                                                    Deanell R. Tacha
                                                    Chief Circuit Judge

                                        -9-


                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-2442
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                              v.

LEVAR V. WADE,
                                        Defendant-Appellant.

                        ____________
          Appeal from the United States District Court
                 for the Central District of Illinois.
          No. 3:01-30030-001—Jeanne E. Scott, Judge.
                        ____________
   ARGUED JANUARY 26, 2005—DECIDED MARCH 15, 2005
                    ____________

  Before EASTERBROOK, RIPPLE, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Bad timing often results in one
being in the wrong place at the wrong time. Levar Wade
will certainly attest to that, for it was being in the wrong
place at the wrong time that resulted in his ticket to a
federal prison. Because bad timing is the true cause of his
predicament, not an illegal detention or a nonconsensual
search, we reject his appeal and affirm the judgment of the
district court.
  Acting on a tip that a fellow named Michael Sullivan was
a drug courier bringing crack cocaine from Chicago into the
2                                                  No. 04-2442

Amtrak station in Springfield, Illinois, FBI agents and local
police set a trap to nab him when he got off a train. In a
stroke of bad luck, Wade exited the train carrying a duffel
bag around the same time Sullivan stepped off. Sullivan,
who was also carrying a bag, appeared to be around the
same age—early twenties—as Wade. Sullivan was ap-
proached and led away. Another officer, Detective Stephen
Welsh, thinking Sullivan might have a cohort,1 followed
Wade through the station.
   At the front of the station, Welsh decided to approach
Wade, but he first radioed for two other officers, Williamson
and Flynn, to join him. Williamson and Flynn came from
opposite sides of the building to assist. Welsh, who was not
in uniform, approached Wade just outside the station, iden-
tified himself as an officer, and asked to speak with him.
Welsh may have “touched” Wade’s arm to “get his atten-
tion,” and after Wade agreed to speak, Welsh suggested
that they move inside the station, “where it was warm and
well lit.” Wade did not say anything in response, and he and
the officers stepped inside. The suggestion to go inside the
station was not unreasonable given that it was around 10
p.m., on a post-Thanksgiving night in November.
  Once inside the station, Welsh stood in front of Wade
while the other two officers stood “a little bit away” behind
him. Welsh asked to see Wade’s identification, but when
Wade started to reach for his duffel bag Welsh put out his
hand and said something to the effect of “wait a minute.”
Welsh then asked if Wade had any weapons or contraband
in the bag. After Wade replied “No,” Welsh asked “Can I
search it?” and Wade said “Go ahead.” As Welsh looked
through the bag, he asked Wade if he would mind if Officer

1
   As luck (good or bad) would have it, there was no real connec-
tion between Wade and Sullivan. They were not cohorts. Both,
however, turned out to be carrying cocaine.
No. 04-2442                                                 3

Flynn searched him. Wade said “No, go ahead.” Flynn asked
Wade if he had “needles or anything like that on you” and
Wade said “No.” Flynn then asked Wade, “Do you mind if I
check you?” and Wade said “No, go ahead.” A moment later,
Flynn retrieved a plastic bag containing 54 grams of crack
cocaine from Wade’s inside jacket pocket. Wade was
arrested and subsequently charged with possessing more
than 50 grams of crack with intent to distribute. After his
motion to suppress the crack failed, Wade conditionally pled
guilty, reserving the right to appeal the denial of his
motion.
  Wade initially argued that his consent was not volun-
tarily given, but that contention gradually morphed into a
claim that he was “illegally detained” by Welsh and the
other officers. If he’s right on either count, the search and
seizure was invalid.
   As we see it, there really are no true credibility findings
at issue here, but to the extent there are, our review is only
for clear error. United States v. Pedroza, 269 F.3d 821 (7th
Cir. 2001); United States v. Marshall, 157 F.3d 477 (7th Cir.
1998). Questions of law—that is, the legal conclusion of
whether Wade’s consent was voluntary and whether he was
illegally seized—are reviewed de novo. Ornelas v. United
States, 517 U.S. 690 (1996).
   What we have recounted thus far essentially comes from
Welsh’s suppression hearing testimony. Wade did not tes-
tify at the hearing or offer a contrary view. In denying
Wade’s motion to suppress, the district judge accepted the
testimony as true.
  Even though consensual searches, and stops that fall
short of seizures, do not implicate the Fourth Amendment,
United States v. Hendricks, 319 F.3d 993, 999 (7th Cir.
2003), we recognize that there is a bit of intimidation in-
volved anytime a police officer stops a person and asks for
permission to conduct a search. The person to whom the
4                                                No. 04-2442

request is directed might consider several possibilities. If he
refuses, he may think the police will assume he’s got
something to hide and not allow him to leave. Although the
former is probably true, he should know, assuming he didn’t
sleep through high school civics classes, that the latter
proposition is not true. If he consents to the search, it might
be because he has nothing to hide, or because he thinks a
search will not find what he is concealing. Regardless of the
thought processes someone who is asked to consent to a
search might go through, we look to objective fac-
tors—whether a reasonable person would feel free to
terminate the encounter. Id. at 1000; Pedroza, 269 F.3d at
826. And here the objective factors augur for a finding of no
illegal detention and a freely given consent that does not
implicate the Constitution.
  Wade seems to concede that his initial encounter with
Welsh involved a nonthreatening request. He argues, though,
that the consensual encounter became a detention when
Welsh asked him to accompany him inside the station, re-
quested identification, and physically obstructed him from
reaching into his duffel bag. Although Wade relies on Florida
v. Royer, 460 U.S. 491 (1983), to argue that an officer’s
request to move to another location is a seizure, Royer is
easily distinguished. In holding that a detention had oc-
curred, the Court in Royer viewed as highly relevant the fact
that the officer had not returned the defendant’s identifica-
tion at the time of the request to move to another location.
Royer, 460 U.S. at 501-02; United States v. Borys, 766 F.2d
304, 310 (7th Cir. 1985) (explaining that officer’s retention
of the defendant’s documentation in Royer was crucial to
the Court’s finding that a detention occurred).
  A train station is a public place without custodial over-
tones. See United States v. Edwards, 898 F.2d 1273, 1274,
1276 (7th Cir. 1990). Welsh did not take possession of any
of Wade’s belongings or identification and did not even re-
quest identification until after Wade agreed to move back
No. 04-2442                                                   5

inside. Moreover, Welsh explained the reason for moving
inside—it was warmer and better lit. A reasonable person
faced with Welsh’s request and explanation would have con-
cluded that his consent was not required and that he was
free to decline. See Pedroza, 269 F.3d at 826-27; United
States v. Morgan, 725 F.2d 56, 59 (7th Cir. 1984) (polite
request to move to another location in a busy public place
did not constitute a seizure). Finally, requests for identifica-
tion do not imply a detention. See Terry v. Richardson, 346
F.3d 781, 785 (7th Cir. 2003).
  Alternatively, Wade argues the consensual encounter
became a detention when Welsh requested permission for
Flynn to search him; he contends the physical stance of the
officers at the time the request was made was coercive.
Specifically, he contends that with Welsh bent down looking
through the duffel bag and the two other officers, who were
in uniform, standing behind him, a reasonable person would
have concluded that he was not free to leave. In support,
Wade relies on United States v. Jaramillo, 891 F.2d 620
(7th Cir. 1989), arguing that once an officer requests
permission to search a subject, a consensual encounter be-
comes an investigatory stop.
  Though the court in Jaramillo agreed with the district
court’s conclusion (not challenged by the government on
appeal) that a consensual encounter became a detention by
the time the officers requested permission to pat down the
subjects, that conclusion was based on the totality of cir-
cumstances. And those circumstances, in effect telling the
subjects of the search that they were suspected of possess-
ing narcotics and asking them “about the unusual bulkiness
around their waists,” are quite different from what we have
here. In addition, more recent precedent of the Supreme
Court and this court makes certain that an encounter may
remain consensual even after a request to search. See United
States v. Drayton, 536 U.S. 194, 206 (2002) (encounter re-
mained voluntary even after officers asked bus passengers
6                                               No. 04-2442

to submit to search of luggage and persons); United States
v. Yusuff, 96 F.3d 982, 987 (7th Cir. 1996) (defendant con-
sented to pat-down search and the court noted similar
encounters are consensual and do not implicate the Fourth
Amendment); United States v. Adebayo, 985 F.2d 1333, 1340
(7th Cir. 1993) (encounter remained consensual after nar-
cotics agents requested permission to search defendant’s
briefcase and jacket).
  Nor did the presence of the two officers who stood “off to
the side” and “behind” Wade rise to the level of a “threaten-
ing” situation. See Hendricks, 319 F.3d at 1000. Only Welsh
stood before Wade, and none of the officers brandished
weapons or physically restrained Wade in any way. See
Drayton, 536 U.S. at 204 (that police officers did not use or
make an overwhelming show of force, engage in intimi-
dating movement, brandish weapons, block exits, make
threats, give commands, or even employ an authoritative
tone of voice were all factors evidencing noncoercive nature
of encounter with bus passengers). None of the circum-
stances described by Wade overcome the conclusion that the
encounter remained consensual throughout and that the
situation did not escalate into an illegal detention.

A true Copy:
      Teste:
                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit

                   USCA-02-C-0072—3-15-05


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 19-1474

LUIS PABLO AYLLON DURAN,

                    Petitioner,

             v.

WILLIAM P. BARR, Attorney General,

                    Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: November 20, 2019                                 Decided: December 5, 2019

Before AGEE and KEENAN, Circuit Judges, and SHEDD, Senior Circuit Judge.

Petition dismissed by unpublished per curiam opinion.

Alfred Lincoln Robertson, Jr., ROBERTSON LAW OFFICE, PLLC, Springfield, Virginia,
for Petitioner. Joseph H. Hunt, Assistant Attorney General, Mary Jane Candaux, Assistant
Director, Stephen P. Finn, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Luis Pablo Ayllon Duran, a native and citizen of Bolivia, petitions for review of an

order of the Board of Immigration Appeals (Board) dismissing his appeal from the

Immigration Judge’s denial of his request for withholding of removal and protection under

the Convention Against Torture. For the reasons discussed below, we dismiss the petition

for review.

       Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2018), we lack jurisdiction, except as

provided in 8 U.S.C. § 1252(a)(2)(D) (2018), to review the final order of removal of an

alien who is removable for having been convicted of certain enumerated crimes, including

an aggravated felony. Under § 1252(a)(2)(C), we retain jurisdiction “to review factual

determinations that trigger the jurisdiction-stripping provision, such as whether [Ayllon

Duran] [i]s an alien and whether []he has been convicted of an aggravated felony.”

Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). Once we confirm these two factual

determinations, then, under 8 U.S.C. § 1252(a)(2)(C), (D), we can only consider

“constitutional claims or questions of law.” § 1252(a)(2)(D); see Turkson v. Holder, 667

F.3d 523, 527 (4th Cir. 2012).

       Because Ayllon Duran has conceded that he is a native and citizen of Bolivia and

that he has been convicted of a criminal offense that qualifies as an aggravated felony, see

8 U.S.C. § 1101(a)(43)(B) (2018) (defining aggravated felony as including “illicit

trafficking in a controlled substance”), we find that § 1252(a)(2)(C) divests us of

                                             2
jurisdiction over the petition for review. * We therefore dismiss the petition for review. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

                                                                  PETITION DISMISSED

       *
         Upon review, we conclude that Ayllon Duran does not raise any questions of law
or constitutional issues that would fall into the exception set forth in § 1252(a)(2)(D). See
Saintha v. Mukasey, 516 F.3d 243, 250 (4th Cir. 2008).

                                             3


179 F.2d 672
SOCONY-VACUUM OIL CO. Inc.,v.SMITH.
No. 12708.
United States Court of Appeals, Fifth Circuit.
Jan. 25, 1950.

Samuel C. Lipscomb, Beaumont, Tex.  A. D. Lipscomb, Beaumont, Tex., for appellant.
George E. Duncan, Beaumont, Tex., L. J. Benckenstein, Beaumont, Tex., for appellee.
Before WALLER, BORAH, and RUSSELL, Circuit Judges.
BORAH, Circuit Judge.

1
This cause in admiralty arose out of a collision in the Sabin-Neches Canal between the single screw tanker Sachem and three loaded steel oil barges which, with one other, were being towed by the tug George A. Butler upon a hawser astern.

2
Charles C. Smith, managing co-owner of the tug and the owner or charterer of the barges, filed a libel against the Sachem, following which the respondent-appellant filed its claim, answer and cross libel.  The two libels were tried together and a final decree was entered on January 28, 1949 holding the Sachem solely at fault for the collision, fixing libelant's damages in the amount of $92,508.70 with costs, and dismissed appellant's cross libel.  From this final decree the claimant of the Sachem has appealed.

3
The principal ground urged for upsetting the decree is that the findings of fact by the District Court, based solely on the deposition testimony of appellee's witnesses, are contrary to the weight of the evidence.  The appellant also insists that this court should determine the issue de novo.  This we shall do.1

4
The collision occurred in a straight reach of the Sabine-Neches Canal, at a point approximately 3.93 miles above the Port Arthur Pleasure Pier Bridge, at 5:25 a.m., November 9, 1945.  The canal at and near the point of collision has a surface width of 500 feet, a bottom width of 350 feet and a depth of 34 feet.

5
The George A. Butler, a 575 horsepower Diesel tug, towing in tandem, and in the order named, the gasoline laden barges CCS 600, Foster Smith, Joseph Smith and Dave Scruggs was proceeding up the canal at a speed of between 3 1/2 and 4 miles per hour over the ground, bound for Port St. Joe, Florida.  The night was dark and clear, the wind southeast and a strong flood tide was running about three miles per hour.  The barges, each approximately 186 feet long, 36 feet wide, were heavily loaded and had a freeboard of about two feet.  The length of the entire flotilla was about 880 feet.  After passing through the Port Arthur Pleasure Pier Bridge, with the mate at the wheel, the tug and tow proceeded up the channel on the port side of the canal near the center of the channel, and this course she pursued until overhauled by the Sachem.

6
At 2:52 a.m. on the morning of the day in question the Sachem, with a Sabine Bar pilot on board, left her anchorage off Sabine Pass and proceeded up channel bound for Beaumont, Texas, where arrangements had been made for her arrival at 7:00 a.m.  The Sachem- 480 feet long, 68 foot beam, 37 feet deep- was proceeding light in water ballast with a draft of 10 feet 8 inches forward and 18 feet 2 inches aft.  She proceeded up channel without incident, passing through the Port Arthur Pleasure Pier Bridge at 5:08 a.m., with her engine half speed ahead.  With the flood tide underfoot and the wind out of the southeast and against her starboard beam the Sachem had difficulty in maintaining steerageway and after passing through the bridge she began to sag down to the lee bank.  So, in order to get back in the middle of the channel, her engine was at 5:09 a.m. put full speed ahead, and there it remained at full throttle for sixteen of the seventeen minutes immediately preceding the collision.  The Sachem was being navigated from the 'monkey bridge' about 50 feet above the surface of the water.  Stationed on the 'monkey bridge' were the helmsman, the master and the pilot.  The pilot was directing the navigation of the vessel and the master was transmitting engine orders through the voice tube to the junior third mate, who was standing by the telegraph in the wheel house.  The navigators of the Sachem first sighted the lights of a small vessel ahead off their port bow fifteen minutes before the actual collision.  Shortly after picking up these lights and because of the numerous shore lights on the west bank, which were casting their reflections in the water, the pilot was for awhile uncertain whether the lights he saw were on the land or in the water.  Concluding that they were not shore lights, the Sachem continued on at a speed in excess of 13 miles per hour over the ground even though the pilot well knew that a 7 mile per hour speed limit was prescribed for those waters.  At 5:23 a.m. the engine of the Sachem was ordered half speed ahead and shortly thereafter she blew a one blast whistle requesting a passage on the starboard side of the vessel ahead.  At this time the Sachem was in the middle of the channel and less than one-half mile astern of the tow.  Despite the fact that the Sachem was the overtaking vessel and was bound to keep out of the way of the libelant's tow, and despite the fact that she received no signal from the overtaken vessel assenting to a passage, the pilot at 5:24 a.m. ordered a hard right rudder and full speed ahead, with the intention of passing the tow to starboard.  In answering her rudder the Sachem started to swing right, and getting too far over smelled the bank and took a sheer to port.  And then, when it became apparent that collision was inevitable, the engine was at 5:24 plus put full speed astern; but the tanker continued over to port, striking the stern barge in tow approximately 5 feet aft of the forward quarter bitts and slid forward along the next two barges of the tow, setting fire to all three barges.

7
It was conceded by the master and pilot of the Sachem that the sheering of the tanker was the immediate cause of the collision.  And it is apparent the sheer would not have occurred had it not been for the high and dangerous rate of speed which the Sachem maintained right up to the moment of impact.  This and this alone, in the Court's view, was the proximate cause of the disaster.2  Careful navigation at moderate speed in this constricted channel was all that was needed to insure a safe passage, but that much caution was imperatively required.

8
The negligence of the Sachem was so gross as to cast upon her the burden of proving by clear and convincing evidence contributory fault on the part of the tug.  Any doubts arising from such proof are to be resolved in favor of the tug.3

9
The faults claimed against the Butler are: (1) that the barges failed to display the lights required by the navigation rules, (2) that the barges were at an angle in the channel and effectively blocked the channel, (3) that the tug was proceeding up the port side of the channel in violation of the narrow channel rules, (4) that the appellee's navigator failed to answer the passing signal.

10
The witnesses for the Sachem swore that they saw no lights on the barges were lighted.  Considering the fact that each light was a separate, independent unit, it is improbable and unreasonable to believe that, within so short a time after the tug had set sail, none of the lights were burning.  Positive testimony by those on the tug, who rigged up the lights and were in a position to see them and know of their condition will not be lightly rejected because other persons, whose duty it was to have seen them, either failed to observe or happened not to see them.  Negative evidence of this character cannot be accepted to outweigh positive evidence.  The failure to observe a light does not disprove its existence.  Applying the usual rules as to probabilities, this court should be hesitant to hold that the officers and crew of the tug would have neglected not only the commands of the law but also the requirements of prudent navigation as by so doing they would be imperiling not only the tug and its highly volatile cargo but their own lives as well.

11
A most significant circumstance bearing upon this question of lights is the fact that although the failure of the tug in this regard is made the chief basis of the streamer's defense, the fact that such lights did not exist was not noted in the log of the Sachem at the time.  And this notwithstanding the fact that the statutes of the United States provide: 'In every case of collision in which it is practicable so to do, the master shall, immediately after the occurrence, cause a statement thereof, and of the circumstances under which the same occurred, to be entered in the official log book.'  Revised Statutes, Sec. 4290, 46 U.S.C.A. § 201, subd. 12.

12
As was said in The Buenos Aires, 2 Cir., 5 F.2d 425, 430: 'It certainly is a matter of great significance that in a matter of such vital importance as the absence or failure to see the side lights of a sailing vessel, which was sent to the bottom by a collision with a streamer, the log of the streamer made to mention of the important and essential circumstance that the bark was displaying no lights at the time the collision occurred.  It is hard to believe that so important an omission would have occurred had the lights not been burning.'

13
This significant conduct on the part of the steamer, together with other facts and circumstances in the case, convince us that the lights on the barges were burning at the time of the collision.  Nor has the appellant shown by clear and convincing evidence that the barges did not carry a bright light on each end as required by the pilot rules for inland waters.  Any doubt arising from the proof must be resolved in favor of the tug.  The City of New York, supra.  But if, despite evidence to the contrary, it could be rightly said that the proof shows that none of the barges save the lead barge carried a light on the bow we would still say that the barges carried five bright lights and that the presence of three more lights on the bows could not, under the facts of this case, reasonably be regarded as contributing to the collision, even though the burden of establishing this was on the tow.

14
The testimony is all one way that the tug was on the port side of the fairway but whether any of the barges were tailing toward and beyond the center of the channel presents a point on which the evidence is conflicting.  The master of the Sachem testified that he first saw a barge 150 feet off the port bow, 40 feet to starboard of the center line of the canal.  The bar pilot's testimony is to the same effect except that he saw the barge about 90 feet away.  This testimony of the master and bar pilot in respect to distances are but poor estimates at best and are of doubtful value when considered in the light of the physical facts.  Considering the fact that the streamer's forward draft was 9 1/2 feet less than her draft aft, that the forecastle head was 35 feet above the water line, and that the gun tubs on the forecastle head were elevated an additional 15 feet above the deck, it is obvious that these witnesses did not and could not have seen the barges at that distance. Nor could they have seen the barges within 600 to 1000 feet ahead of the bow, since their movements on the 'monkey bridge' were restricted to 3 1/2 or 4 feet on either side of the center line of the vessel, due to the presence of gun tubs on the port and starboard wings.  The lookout, though inattentive to duty in that he did not report the presence of the barges in the channel nor the three lights which he had previously seen ahead, was admittedly in the most advantageous position to observe the channel ahead.  Corroborating the testimony for the tug, places the tow on the port side of the center of the channel.  We accept his testimony as true.

15
The applicable Inland Rule prevailing on November 9, 1945 reads as follows: 'In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel.'  33 U.S.C.A. § 210, Art. 25

16
A fault charged against the appellee is that the tug was at a place in the channel where she had no right to be, and that since no satisfactory explanation was given for her being there, that the burden was on the tug to show not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been one of the contributing causes of the collision, citing The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148.  It is true that the tug was on the port side of the center of the channel in violation of the statute and that the explanation which she gave for being there is not sufficient.  But that did not make her an outlaw.  And she is not to be condemned if she can prove that her statutory fault was a remote one and could not have contributed to the collision.  The evidence indubitably shows that the Sachem was fully aware of the tug's position in ample time to navigate in reference to her and her barges so as to pass them safely.  The Sachem had over 175 feet of navigable waterway within which to pass on the starboard side of the tow and could have easily avoided her by proper navigation.  We accordingly hold that the violation by the Butler of Article 25 of the Inland Rules was a condition and not a contributing cause of the collision.4

17
The Sachem was the overtaking vessel and she was duty bound to keep out of the way of the Butler's tow.  Her obligation was to keep well clear not only throughout the approach and during the actual passing, but until she was finally past and clear.  The contention that the tug was at fault for failing to answer immediately the one blast signal of the Sachem, and to hold her course and speed, misconceives the rule of law applicable to the instant situation,5 and ignores the factual situation existing at the time the one blast signal was blown.  Considering the speed of the Sachem and her close proximity to the tow at the time her one blast signal was blown, and the fact that her navigators, thinking that they were well over a thousand feet from the tug, had intended to slow down and give another whistle, it would seem to be immaterial whether the tug had answered with a one blast signal or with a danger signal.  Had the former been given, the Sachem would not have been excused for the resulting collision since she assumed all risks attending her attempted passage.6  And had the tug answered with a danger signal, it would have been impossible for her to have stopped her forward momentum in less than three or four minutes.  There is nothing in the complaint that the mate failed to accept the whistle signal of the steamer.  He did all that was required had he in fact accepted the signal of the overtaking vessel.

18
We agree with the district court in the conclusion that the Sachem was wholly to blame and that the Butler was free from fault.

The decree is

19
Affirmed.

1
 Mosher v. Parker Brothers and Company, Inc., 5 Cir., 1950, 178 F.2d 419

2
 The Ditmer Koel, 5 Cir., 65 F.2d 555; The Howard Reeder, 4 Cir., 207 F. 929

3
 The City of New York, 147 U.S. 72, 85, 13 S.Ct. 211, 37 L.Ed. 84; The Ludvig Holberg, 157 U.S. 60, 15 S.Ct. 477, 39 L.Ed. 620; The Umbria, 166 U.S. 404, 17 S.Ct. 610, 41 L.Ed. 1053; The Victory (The Plymothian), 168 U.S. 410, 423, 18 S.Ct. 149, 42 L.Ed. 519

4
 Matton Oil Transfer Corporation v. The Green, 2 Cir., 129 F.2d 618, 620; The Syosset, 2 Cir., 71 F.2d 666, 668; The La Bretagne, 2 Cir., 179 F. 286, 288

5
 The Industry, 2 Cir., 29 F.2d 29, 30; The S. & H. No. 2, Inc., 2 Cir., 119 F.2d 666

6
 Warner Co. v. Independent Pier Co., 278 U.S. 85, 89, 49 S.Ct. 45, 73 L.Ed. 195, 197


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4553

PERRY SELLOM DEI,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CR-98-170)

Submitted: March 31, 2000

Decided: April 18, 2000

Before LUTTIG, TRAXLER, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Sterling H. Weaver, Sr., WEAVER LAW OFFICES, Portsmouth,
Virginia, for Appellant. Helen F. Fahey, United States Attorney,
James Ashford Metcalfe, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Perry Sellom Dei appeals the district court's denial of his motion
to withdraw his guilty plea. A defendant has no absolute right to with-
draw a plea of guilty. See United States v. Ewing, 957 F.2d 115, 118
(4th Cir. 1992). This court reviews a denial of a motion to withdraw
a guilty plea for an abuse of discretion. See United States v. Wilson,
81 F.3d 1300, 1305 (4th Cir. 1996). Under Fed. R. Crim. P. 32(e),
when a defendant moves to withdraw his plea prior to sentencing, the
court may permit withdrawal if the defendant shows"any fair and just
reason." In determining whether a defendant has demonstrated such
a reason, courts consider six factors:

          (1) whether the defendant has offered credible evidence
          that his plea was not knowing or not voluntary;

          (2) whether defendant has credibly asserted his legal inno-
          cence;

          (3) whether there has been a delay between the entering of
          the plea and the filing of the motion;

          (4) whether the defendant has had close assistance of com-
          petent counsel;

          (5) whether withdrawal will cause prejudice to the govern-
          ment; and

          (6) whether it will inconvenience the court and waste judi-
          cial resources.

Wilson, 81 F.3d at 1306 (citing United States v. Moore, 931 F.2d 245
(4th Cir. 1991)).

Our review of the record in light of each of these factors leads us
to conclude that the district court did not abuse its discretion in deny-
ing Dei's motion. Accordingly, we affirm. We dispense with oral

                     2
argument because the facts and legal contentions are adequately pres-
ented in the material before the court and argument would not aid the
decisional process.

AFFIRMED

                    3


108 Cal.App.2d 60 (1951)
THE PEOPLE, Respondent,
v.
SIMPSON L. TIDWELL, Appellant.
Crim. No. 2312.
California Court of Appeals. Third Dist.
Dec. 6, 1951.
 Frank Damrell for Appellant.
 Edmund G. Brown, Attorney General, Doris H. Maier and Wallace G. Colthurst, Deputy Attorneys General, for Respondent. *61
 ADAMS, P. J.
 Defendant, who at the time of his arrest was the pastor of a church in Long Beach, pleaded guilty to a charge of statutory rape of a 17-year-old girl, Patsy, who was, at the time of the commission of the offense, a member of the church of which defendant was then pastor in Turlock. The arrest was made on Friday evening, November 24, 1950, at which time defendant was taken to the Los Angeles jail where he was interviewed and then detained overnight. At that time he first denied the charge, but a few minutes later admitted that he had had sexual intercourse with Patsy on several occasions. The next morning he telephoned his wife at Long Beach, told her he was being taken to Modesto, that she was not to come up there, but should send him a toothbrush and $10. The next day he was taken to Modesto in an automobile by the sheriff of Stanislaus County, accompanied by a Mr. Thompson who was an investigator for the district attorney's office. On the way north defendant discussed his case with Thompson, and requested the latter to get in touch with defendant's wife and tell her not to employ an attorney. At that time defendant asked Thompson what the probabilities were if he pleaded guilty, and was told that there was better than a 50-50 chance that he would go to San Quentin.
 The following morning Thompson interviewed defendant again at which time the latter expressed the belief that he should get an attorney and was told that if he wanted one Thompson would call whomever he named. Defendant then said he wanted to pray, and, after being left alone, said he had "consulted with his God" and felt better. The following morning defendant stated that he wanted to plead guilty, to avoid embarrassment to the girl, and get it over with. On Monday afternoon defendant was taken to Ceres where, before a justice of the peace, the charge was read to him, he was advised that he was entitled to an attorney, an extension of time to get one if he desired, and process for witnesses. Defendant stated he desired to take the stand that day, and was admonished that any testimony he might give there would be held against him in case he was held over. Tidwell was then sworn and admitted having intercourse with the girl. He was bound over, after which he was returned to Modesto, and during the ride stated that he wanted Thompson to get in touch with his wife, tell her not to get an attorney because "I am guilty and I want to get it over with."
 The following morning defendant was arraigned in the *62 superior court at which time he was advised by the court that he was entitled to counsel, that if he had no means to employ one the court would grant further time, and would appoint an attorney to represent him. Defendant stated that he did not want a lawyer, and entered a plea of guilty. Probation was requested, and a report ordered. On January 15th the court convened to consider probation. Defendant then had counsel who made a motion to allow him to change his plea from guilty to not guilty. On January 23d and 24th testimony was taken on appellant's motion to change plea, and on an additional motion in arrest of judgment. At the conclusion of the hearing both motions were denied, and, on January 25, 1951, the court denied probation, rendered judgment and sentenced defendant to imprisonment in the state prison for the term prescribed by law, said judgment being entered January 30, 1951.
 This appeal was taken on January 25, 1951, from "the order denying defendant's motions to withdraw his plea of guilty and enter a plea of not guilty, and for arrest of judgment, and to set aside the judgment of conviction entered in said Superior Court January 25, 1951; and from the whole thereof."
 It is conceded by appellant in his brief that his motions to set aside his plea and for arrest of judgment were interposed before judgment, and that only after the denial of same was he sentenced. [1] Orders denying motions for change of plea, or denying motions for arrest of judgment, or to vacate a judgment of conviction, are not appealable. See People v. Morgan, 9 Cal.App.2d 612, 617 [50 P.2d 1051]; People v. Price, 51 Cal.App.2d 716, 718 [125 P.2d 529]; People v. Dabner, 153 Cal. 398, 399 [95 P. 880]; People v. Shaffer, 130 Cal.App. 749 [20 P.2d 345]; People v. Ramey, 135 Cal.App. 573, 579 [27 P.2d 941]; People v. Block, 134 Cal.App. 217, 218 [25 P.2d 242]; People v. Vivian, 46 Cal.App.2d 163, 166 [115 P.2d 559]; People v. Brown, 71 Cal.App.2d 669, 676 [163 P.2d 85]; People v. Montgomery, 51 Cal.App.2d 444, 446 [125 P.2d 108]. In his briefs appellant argues only that the court erred in denying his motions for change of plea and for arrest of judgment. And as for his asserted motion to "set aside the judgment of conviction entered in said Superior Court January 25, 1951, and from the whole thereof," the record contains no such motion.
 It is doubtful from defendant's notice of appeal whether he has brought himself within the provisions of Penal Code, *63 section 1237, which prescribes the grounds of an appeal in a criminal case. But giving extreme latitude to the words in his notice of appeal, "and from the whole thereof," and assuming that appellant intended thereby to appeal from the final judgment of conviction, we have given consideration to his argument but find no ground for reversal.
 [2] A defendant desiring to change his plea must show good cause therefor; and the granting of such an application is a matter within the sound discretion of the trial judge, whose decision will not be disturbed on appeal except for an abuse of discretion. (People v. Morgan, supra, at p. 615; People v. Dabner, supra, at p. 403; People v. Price, supra, at p. 718.)
 [3] No abuse of discretion is shown in this case. While appellant asserts that he was not accorded the benefit of counsel, but was prevailed upon by Mr. Thompson not to get counsel, and was taken advantage of by hurried proceedings, the record contains ample denials of any statements of Thompson which can be said to constitute inducements to defendant to plead guilty, or not to secure counsel. Both the committing magistrate and the judge of the superior court advised him fully as to his rights to counsel, to an extension of time to secure same, and he was advised that if he was unable to employ an attorney one would be appointed to represent him. And no undue haste is indicated by either the court or the district attorney. Defendant was arrested on a Friday evening, and it was not until the following Monday that he was brought into the justice's court, after he had, as he said, "consulted with his God," made several admissions of his guilt, and expressed a desire to "get it over with."
 This defendant was by no means an ignorant defendant, but, on the contrary, was a pastor of a church and had been such for many years. He was 43 years old, and, according to the report of the probation officer, which report defendant's counsel introduced in evidence, he claimed to be a graduate of Hardin Simmons College and is a man of "undoubtedly above average intelligence"; and he admitted to such officer that his illicit relationship with the girl Patsy had continued over a period of years.
 We are satisfied that the trial court did not abuse its discretion in denying defendant's motion. (In re Jingles, 27 Cal.2d 496, 499 [165 P.2d 12]; In re Tedford, 31 Cal.2d 693, 695 [192 P.2d 3]; People v. Smink, 105 Cal.App. 784, 795 *64 [288 P. 873]; People v. Brahm, 98 Cal.App. 733, 735- 736 [277 P. 896].)
 The appeals from the orders denying the motions made by appellant are dismissed as nonappealable, and the judgment is affirmed.
 Peek, J., and Van Dyke, J., concurred.


180 Cal.App.3d 432 (1986)
225 Cal. Rptr. 582
BENNIE BERTORELLI, Plaintiff and Appellant,
v.
CITY OF TULARE, Defendant and Respondent.
Docket No. F005205.
Court of Appeals of California, Fifth District.
April 28, 1986.
*435 COUNSEL
Christenson, Kralowec & Roper and Robert D. Christenson for Plaintiff and Appellant.
Hurlbutt, Clevenger, Long & Vortmann and E. Warren Gubler for Defendant and Respondent.
OPINION
WOOLPERT, J.
(1) (See fn. 2.) We are asked to reverse a trial court order denying a Government Code section 946.6[1] petition for relief from *436 the governmental tort claims statute (§ 945.4)[2] under circumstances which argue for relief, but do not fit any single indisputable rule of law compelling reversal. During the 100-day claim period after a motor vehicle accident involving a municipal truck, an insurance company filed a technically adequate subrogation claim seeking recovery for property damage on its own behalf and that of its insured. The insured's personal injury claim was not, however, mentioned. Simultaneously an insurance adjuster for the city approached the injured party and, during the claim period, the two engaged in "continuous discussions." Even after the claim period expired, the adjuster sought to settle the "personal injury claim." Only then did the injured party contact an attorney. While the adjuster apparently never mentioned a claim requirement to the injured party, there was no evidence the adjuster sought to gain any advantage by the passage of time. We must now determine whether these circumstances will excuse the injured party's failure to timely file a formal claim.
We hold that where there is undisputed evidence of ongoing settlement discussions within the 100-day period between the injured party and an adjuster or other agent for a public entity, the injured party's failure to timely file a formal claim may, under some circumstances, be excused even though the injured party made no attempt to employ counsel.

FACTS
In his petition for relief, appellant Bennie Bertorelli alleged he presented an application for leave to present a late claim for damages to the Tulare City Council on May 23, 1984, which the Tulare City Council in turn rejected on June 5, 1984. Bertorelli further alleged his failure to present a timely claim was due to mistake, inadvertence, surprise and excusable neglect.
In a declaration attached as an exhibit to his petition, Bertorelli stated: "2. I was injured in an accident occurring on November 28, 1983 involving myself and a truck owned by the City of Tulare. [¶] 3. Shortly after the accident, I was approached by William D. Terry, adjustor of Adjustco, Inc., who stated he represented the City of Tulare in this matter. Within a few weeks after the accident, through Mr. Terry, I was paid $4,000.00 for the loss of my pick-up. On March 29, 1984, Mr. Terry sent me a letter discussing possible settlement of the personal injury in this matter.[[3]] [¶] 4. I *437 did not know that I had to make a 100-day's claim. From the beginning of the accident I was in continuous discussion with the representative for the city, Mr. Terry. I was never informed that I had to file a 100-day's claim. Only upon first discussion with my attorney in April 1984 did I find out a 100-day's claim probably was required."
As stated above, Bertorelli contacted an attorney, Robert Christenson, in April 1984. Two weeks later, Christenson telephoned Terry about the city's requirement to file a late claim. In his declaration dated May 23, 1984, Christenson added: "Only until recently was I informed that an application for a late claim was required by the City. Mr. Terry and I are still negotiating this matter. I am acquiring medical reports and other information for him pursuant to his request." Attorney Christenson filed the application for leave 43 days after his first meeting with Bertorelli.
Respondent City of Tulare (Tulare) opposed the section 946.6 petition for relief on the following grounds: (1) ignorance of the 100-day claim requirement did not constitute mistake, inadvertence, surprise or excusable neglect sufficient to cure a failure to present a timely claim under section 911.2; (2) settlement negotiations did not commence until at least 125 days after the accident and therefore Bertorelli could not contend Tulare's conduct in any way misled him into not presenting a timely claim; and (3) both petitioner and his counsel failed to exercise due diligence in presenting the claim in a timely fashion. With its opposition, Tulare attached a copy of a letter to Tulare from the subrogation department of Bertorelli's insurance company making a claim for $3,499.50. The letter purportedly established that Bertorelli's insurance company, not Tulare, paid the property damage claim.
The trial court denied without comment Bertorelli's petition for relief.

DID THE LOWER COURT ABUSE ITS DISCRETION BY DENYING THE PETITION?
For a court to grant a petitioner relief for failure to present a claim within the 100-day limit of section 911.2, it must find, under circumstances pertinent to this case: "[T]he application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that: (1) The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity establishes that it would be prejudiced if the court relieves the petitioner from the provisions of Section 945.4; or...." (§ 946.6, subd. (c).)
*438 (2a) Bertorelli contends the evidence supported findings consistent with section 946.6, subdivision (c). He concludes the trial court abused its discretion by denying his petition.
(3) A trial court's order granting or denying a petition under section 946.6 is subject to the same standard of review used in relief from default proceedings. (Viles v. State of California (1967) 66 Cal.2d 24, 29 [56 Cal. Rptr. 666, 423 P.2d 818].)
"Where, as here, the trial court denies the motion for relief from default, the strong policy in favor of trial on the merits conflicts with the general rule of deference to the trial court's exercise of discretion. [Citation.] Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. [Citation.] Doubts are resolved in favor of the application for relief from default [citation], and reversal of an order denying relief results [citation]. Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. [Citations.]" (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 [211 Cal. Rptr. 416, 695 P.2d 713].) In Elston the state Supreme Court held the trial court should have granted relief to a party whose attorney failed to respond to requests for admissions. The requests had been received in the office and then misplaced; however, the attorney was unaware of those facts.
Reversal may also be appropriate when petitioner's uncontradicted evidence establishes adequate cause for relief. (Viles v. State of California, supra, 66 Cal.2d at p. 28.)
(4) In evaluating adequate cause for relief, we are guided, and we take this opportunity to remind trial courts they should likewise be guided, by the following general rules:
(1) "Section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary claimant." (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 [197 Cal. Rptr. 601, 673 P.2d 271].)
(2) Relief from the 100-day limit is granted under the same showing as is required for relief under section 473 of the Code of Civil Procedure. (Viles v. State of California, supra, 66 Cal.2d at p. 29.)
(3) It is "the well-recognized policy of the law to liberally construe remedial statutes designed to protect persons within their purview, and the modern trend of judicial decisions [to favor] granting relief unless absolutely forbidden by statute [citations]...." (Id., at pp. 32-33.)
*439 (5) The following language from a decision predating Viles reflects the "well-recognized policy" and "modern trend of judicial decisions": "[A] city, in a proper case, may be estopped from relying on the defense of non or late compliance with the statute, and ... substantial compliance is all that is required. The old doctrine of strict and literal compliance, with its attendant harsh and unfair results, has disappeared from our law." (Cruise v. City & County of San Francisco (1951) 101 Cal. App.2d 558, 563 [225 P.2d 988], italics added.)
(2b) The foregoing general rules counsel liberal construction of the governmental tort claim statute. Nevertheless, courts have developed additional rules to deal with specific instances of less than strict compliance with the tort claim statutes. (6) For instance, mistake of law based solely on ignorance of the 100-day claim requirement is not enough.
"Mere ignorance of the law, at least where coupled with negligence in failing to look it up, is not sufficient cause to allow a petitioner to file a late claim against a public entity (Tammen v. County of San Diego, 66 Cal.2d 468, 476 [58 Cal. Rptr. 249, 426 P.2d 753]; Security Truck Line v. City of Monterey, 117 Cal. App.2d 441, 445 [256 P.2d 366, 257 P.2d 755])." (Martin v. City of Madera (1968) 265 Cal. App.2d 76, 79 [70 Cal. Rptr. 908].)
(7) Moreover, a petitioner may not successfully argue excusable neglect when he fails to take any action in pursuit of the claim within the 100-day period. "[T]he claimant must at a minimum make a diligent effort to obtain legal counsel within 100 days after the accrual of the cause of action.... The reasonable and prudent course of conduct under the circumstances of this case was to seek legal counsel." (Ebersol v. Cowan, supra, 35 Cal.3d at p. 439.)
(2c) Yet, these specific rules are not absolutes. Ebersol does not hold that it will always be inexcusable neglect when the petitioner fails to obtain the advice of counsel within the 100-day period. The opinion distinguishes between the lay person who fails to do anything during the 100 days after the claim accrues and the person who acts diligently but unsuccessfully to retain legal counsel. (8) The court reaches its holding only after applying the principal rule: "Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances." (Ebersol v. Cowan, supra, 35 Cal.3d at p. 435.) Thus, even the failure to obtain legal advice will be excused when a different course of action is reasonably prudent. Circumstances which would "trap the unwary" may suffice.
(2d) In this case, Bertorelli did not obtain legal counsel within the 100-day period. He emphasized his ignorance of the law as well as his "continuous" *440 contact during that period with the adjuster representing the city's insurance carrier. Given Martin and Ebersol, what effect does continuous discussion between the adjuster and Bertorelli during the 100-day period have on his petition for relief when the adjuster provides no notice of the claim requirement?
"Acts or conduct which wrongfully induce a party to believe an amicable adjustment of his claim will be made, may create an estoppel against pleading the statute. [Citation.] An insurer cannot hold out a hope of amicable adjustment of a claim and thus delay action against it, and then plead the delay caused by its own conduct as a defense to an action when brought." (Industrial Indem. Co. v. Ind. Acc. Com. (1953) 115 Cal. App.2d 684, 690.) The insurer in Industrial Indem. Co. sought considerable information and there were delays. However, when the injured party would comment that she ought to see an attorney, the insurer would respond, "Don't worry about it." Here, Bertorelli's declaration does not refer to delays or footdragging by the adjuster.
Nonetheless, conduct on behalf of a public agency, which would induce a reasonably prudent person to avoid seeking legal advice or personally commencing litigation, may estop the public agency from asserting a claims defense: "An estoppel may arise although there was no designed fraud on the part of the person sought to be estopped. [Citation.] To create an equitable estoppel, `it is enough if the party has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss.' [Citation.]" (Benner v. Industrial Acc. Com. (1945) 26 Cal.2d 346, 349-350 [159 P.2d 24].)
(9) In the usual case, estoppel is a question of fact to be resolved by the trier of facts. However, when "the facts are undisputed, the existence of an estoppel is a question of law." (Cal. Cigarette Concessions v. City of L.A. (1960) 53 Cal.2d 865, 868 [3 Cal. Rptr. 675, 350 P.2d 715].)
(2e) We note with interest that Tulare did not offer any declarations by its adjuster or others to contradict Bertorelli's evidence. The unsworn statement of Tulare's counsel, that settlement discussions did not commence until the time of the March 29, 1984, letter, was not evidence and, on the face of the letter, was untrue. The March 29 letter verifies there had been at least one prior settlement discussion between the adjuster and Bertorelli. In addition, the subrogation letter dated January 19, 1984, was negative evidence at best. It constituted a proper claim for property damage arising from the same accident. Petitioner, as well as his insurance company, jointly claimed certain property-related losses were the city's responsibility. Therefore *441 the city was on proper notice of the accident and at least one potential cause of action.
Thus, we must rely on petitioner's declarations and Tulare's admission of a timely property damage claim. While those declarations "could have been more explicit" (Elston v. City of Turlock, supra, 38 Cal.3d at p. 234) regarding the extent and nature of the "continuous discussion," Tulare did not offer evidence to contradict Bertorelli's statements. Again using the words of our high court: "The [City] has not submitted any declarations or other factual basis for disbelieving the proffered evidence. We are not therefore persuaded that we should disregard any of the evidence submitted by [Mr. Bertorelli]. To do so, we believe, would be arbitrary." (Ebersol v. Cowan, supra, 35 Cal.3d 427, 439-440.)
The reasonable inference of Bertorelli's declaration was that the two men discussed possible settlement throughout the 100-day period. Moreover, the adjuster in his March 29, 1984, letter specifically referred to "your personal injury claim." Thus continuous settlement negotiations grounded on the public entity's knowledge of not only a property damage claim, but apparently also a personal injury claim, could induce a reasonably prudent person to rely on the continued state of affairs without seeking counsel. A reasonably prudent person would believe that nothing further need be done to preserve his or her claim.
(10) In this regard we also note: "The purpose of the statute requiring presentation of claims is to give the governmental entity notice and an opportunity to investigate and settle meritorious claims without litigation[.]" (Viles v. State of California, supra, 66 Cal.2d at p. 32.) When determining whether relief should be given for failure to timely file a claim, it is significant that the public agency has investigated the accident soon after its occurrence and cannot show any prejudice due to the lack of a formal claim. (Ibid.) (2f) In this case Tulare cannot show prejudice. It had timely notice of the property damage claim. Although it could say its investigative effort was directed to the property damage claim, the adjuster's own words demonstrated Tulare also investigated the personal injury claim for settlement purposes, inferably during the 100-day period.
Tulare argues that the adjuster's post 100-day letter concerned contacts made after the claim period expired. Even if we disregard the contents of the letter to the contrary and make that assumption, it remains unhelpful to the city's case. The letter was evidence of a course of conduct which was inconsistent with treating the "claim for personal injuries" as no longer viable and "brought into play elements necessary to create [an] equitable estoppel." (Denham v. County of Los Angeles (1968) 259 Cal. App.2d 860. *442 866 [66 Cal. Rptr. 922].) In Denham a public agency sent a letter after the automatic rejection time period had expired and was held bound by its appearance of declaring a new time period for action. The court stated in passing: "Defendant could have stood pat without taking any action whatsoever and no estoppel would have arisen." (Ibid.) In our case the letter expressly acknowledged and continued a course of action. We therefore conclude Bertorelli's conduct was excusable under the circumstances.[4]
(11) Tulare also contends once Bertorelli retained counsel, too much time passed before that attorney sought the court's relief. We disagree. The basis for the initial default in the claim procedures was the ongoing settlement discussion. Bertorelli's counsel filed a declaration indicating that he was trying to satisfy the adjuster's request for medical information. Counsel further inquired through the adjuster whether Tulare would require the filing of a late claim. This was consistent with the ongoing attempts to settle the case without litigation. A more prudent course of action would be to formally seek permission to file a late claim, while pursuing settlement.
Obviously, if presented with good cause, late claims must be accepted; by informal action the same result follows in an estoppel relationship. (Denham v. County of Los Angeles, supra, 259 Cal. App.2d 860.)
"It is only when a substantial period for instituting proceedings supervened after expiration of the delay engendered by a party that his conduct or representations will not estop him from asserting the bar of the statute.... A party has a reasonable time in which to bring his action after the estoppel has expired." (Industrial Indem. Co. v. Ind. Acc. Com., supra, 115 Cal. App.2d at p. 690.)
We note again that Tulare filed no declaration by the adjuster. Tulare thereby failed to contradict the attorney's allegation of continuing negotiations and inquiry into whether compliance with Tulare's claim procedure would be necessary. It was not unreasonable to await response to the request which had been made in good faith while negotiations were being actively pursued. No showing of prejudice from the passage of time could be made. Finally, no declaration was filed showing the adjuster lacked authority to act on behalf of Tulare.
*443 The judgment is reversed. Appellant to recover costs on appeal.
Franson, Acting P.J., and Hamlin, J., concurred.
NOTES
[1]  All statutory references are to the Government Code unless otherwise indicated.
[2]  An order denying a petition for leave to file a late claim under section 946.6 is appealable. (Rivera v. City of Carson (1981) 117 Cal. App.3d 718, 723, fn. 2 [173 Cal. Rptr. 4].)
[3]  The letter read: "Dear Mr. Bertorelli: [¶] We recently discussed settlement of your personal injury claim resul[t]ing in the above dated accident. We would please contact the undersigned so that we can set up an appointment to again meet and hopefully reach an agreement on the claim. Thank you for your cooperation."
[4]  We do not suggest this result will follow in every case in which the adjuster contacts the potential claimant within the claim period. Also, we add that the uncertainty which may result from such early contacts may be avoided if an adjuster or other agent for the public entity gives the injured party timely written notice of the claim period. Such affirmative action would not unfairly burden the public agency which chooses to speedily negotiate with an unrepresented potential claimant.


124 F.2d 959 (1942)
CITY OF OAKLAND
v.
UNITED STATES.
No. 9801.
Circuit Court of Appeals, Ninth Circuit.
January 14, 1942.
Rehearing Denied February 18, 1942.
*960 Charles A. Beardsley, Port Atty., and W. Reginald Jones, Asst. Port Atty., both of Oakland, Cal., for appellant.
Norman M. Littell, Asst. Atty. Gen., M. Mitchell Bourquin, Sp. Asst. to Atty. Gen., of San Francisco, Cal., and Charles R. Denny, Jr., and John F. Cotter, Attys., Department of Justice, both of Washington, D. C., for appellee.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
GARRECHT, Circuit Judge.
This is an appeal from a judgment entered by the District Court of the United States for the Northern District of California, Southern Division, in the above-entitled action on January 15, 1941, and from the order of the same court entered on March 6, 1941, denying appellant's motion to vacate the judgment. The appeal is both from the judgment and from the order, each appeal serving the same purpose.
A proceeding by the United States to acquire by condemnation seventy-two acres of land on the Oakland waterfront for the military purposes of the United States as these are described in "An act to authorize *961 condemnation proceedings of lands for military purposes", 40 Stat. 241, as amended, 50 U.S.C.A. § 171, and referred to in the Act of September 8, 1940, Public No. 781, 76 Cong., 3d sess., appropriating money therefor, was instituted by filing a complaint in condemnation against appellant and others on January 15, 1941. The complaint alleged that the Secretary of War, acting under the authority of the acts of Congress had selected for acquisition by the United States of America the land described and had determined the same to be suitable and necessary for military purposes of the United States. It further alleged that the land was necessary for such purposes and that the use thereof was immediately required in order that necessary work could be begun at the earliest practicable date for the location, construction, and prosecution of works described in the acts of Congress referred to; that the purposes for which said land and appurtenances were being taken are necessary, suitable, and constitute a public use, and the use to which said property was to be applied was a use authorized by law.
Simultaneously with the filing of the complaint there was filed in the name of the United States by the Secretary of War a declaration of taking conforming to the requirements of 40 U.S.C.A. § 258a, and there was deposited in the registry of the court the sum of $2,168,000, being the estimated amount of just compensation for the property. Upon the filing of the declaration of taking and the making of the deposit the court entered a judgment, finding that the requirements of said statute had been complied with, and decreeing that in accordance with the terms and provisions of the statute, title had vested in the United States; that the lands were deemed to have been condemned and taken for the use of the United States, and that the right to just compensation had vested in the persons entitled thereto, to "be ascertained and awarded in this proceeding and established by judgment herein pursuant to law".
The Declaration of Taking Act, approved February 26, 1931, c. 307, 46 Stat. 1421, 40 U.S.C.A. §§ 258a-258e, is printed in the margin.[1]
*962 Summons was served upon this appellant January 16, 1941. On February 14, 1941, appellant filed a motion to vacate the judgment, which was denied on March 6, 1941. On April 4, 1941, appellant gave notice of appeal from the judgment and from the order denying the motion to vacate said judgment.
Specifications of error relied upon are thus stated by appellant:
"Since the questions involved on the appeal from the judgment, and on the appeal from the order denying the motion to vacate the judgment, are the same or substantially the same, and since both appeals serve the same purpose, the specifications of the errors upon which the appellant relies, whether addressed to the judgment or addressed to the order, will be numbered consecutively herein. Specifications numbered (1) to (5) are addressed to the judgment; specification numbered (6) is addressed to the order; as follows:
"(1) The court erred in entering a judgment of condemnation, without either process, or appearance by the appellant, or a hearing, or an opportunity to be heard upon the issues adjudicated in said judgment;
"(2) The court erred in entering a judgment of condemnation on the declaration of taking, in the absence of any statutory authorization for any judgment thereon;
"(3) The court erred in entering a judgment of condemnation upon the commencement of the proceeding, contrary to the Acts of Congress requiring conformity to the practice in such proceedings in the California courts;
"(4) The court erred in entering a judgment of condemnation upon the declaration of taking, because it does not specify the public use for which the Secretary of War seeks to condemn the appellant's property;
"(5) The court erred in entering a judgment of condemnation on the declaration of taking, because the Act of Congress providing for such a declaration of taking in such a proceeding is unconstitutional in that it provides for a deprivation of property without due process of law, contrary to the provisions of the Fifth Amendment to the Constitution of the United States, and because the ex parte judgment itself is likewise violative of the due process requirement of said Amendment;
"(6) The court erred in denying the appellant's motion to vacate the judgment, to the end that the appellant might be given an opportunity to be heard at the trial upon any and all issues that may properly be raised in the proceeding."

Appellant's Right To Be Heard.
Appellant's principal grievance, most strongly voiced, is to the effect that the action taken by the District Court deprives it of property without giving it any opportunity to be heard. The judgment order *963 complained about, by its very terms contradicts such claim. After determining that the ex parte showing made by the Government is sufficient to warrant the determination that the premises in question are necessary for the military uses of the United States, that they have been condemned and taken, and that the United States is entitled to immediate possession, it further provides that the actual taking of possession be suspended until after thirty days' notice of the judgment has been given to the defendant. The judgment then recites that "this cause is held open for such other and further orders, judgments and decrees as may be necessary in the premises".
As the learned District Court in its opinion on the motion to vacate the judgment order points out, there will be ample opportunity, if relief is prayed for on any such grounds, for appellant to be heard on the question that the Secretary of War was acting without authority or that there was no necessity for the Government to acquire the land or any other reason that would make the action of the officials wrongful or fraudulent. The answer of the District Court to these suggestions merits quotation: "Assuming for purposes of argument that it is ultimately determined that the declaration of taking is affected with fraud or bad faith, it would follow that the declaration of taking will be a nullity, ineffective to vest title, and that the judgment thereon would also be a nullity. There has therefore been no prejudice to the substantial rights of the defendant by the entry of the judgment here under attack. The occasion and the authority for such judgment at this juncture is manifest. * * *."
But appellant does challenge the power of the court to enter the judgment complained of, and insists that there is no authority therefor to be found in the law. The statute, however, declares that upon the performance of certain requirements the condemnation shall be effective. The judgment of the court here merely recites that it has found that these requirements have been met. The statute also provides that if the final award made exceeds the amount paid into court, interest shall be allowed on the amount of the excess from the date of the taking, and, further, the court is required to fix the time and the terms upon which defendant shall surrender possession, which all implies that the court must first express its judgment that the requirements of the statute have been complied with. This is in accordance with orderly procedure. To advise the appellant of the action that has been taken certainly does not adversely affect the enforcement of its rights.
The entry of an order by a District Court, without the benefit of express statutory authority, permitting the United States to take immediate possession to land sought to be condemned was upheld in Commercial Station Post Office v. United States, 8 Cir., 48 F. 183, and followed in Hessel v. A. Smith & Co., D.C., 15 F.Supp. 953, and United States v. Eighty Acres of Land, D.C., 26 F.Supp. 315.

Eminent Domain and Due Process.
Appellant contends the taking of its property under this act is an attempt to deprive it of property without due process of law, contrary to the Fifth Amendment to the Constitution. The title of the act declares its purpose to be "To expedite the construction of public buildings and works * * * by enabling possession and title of sites to be taken in advance of final judgment in proceedings * * * under the power of eminent domain." 46 Stat. 1421. The power of eminent domain is not dependent upon any specific grant in the Constitution; it is inherent in sovereignty, limited and conditioned by the just-compensation clause of the Fifth Amendment. Hanson Lumber Co. v. United States, 261 U.S. 581, 587, 43 S.Ct. 442, 67 L.Ed. 809.
The act provides that in any condemnation proceedings brought by the United States, upon filing the petition and before judgment but after filing a declaration of taking and the deposit in court of the amount of estimated compensation, the land in question shall be deemed to be condemned and taken for the use of the United States and title shall vest in the Government. The statute authorizes the taking of possession where certain requirements have been met, particularly where adequate provision has been made for just compensation for the parties entitled thereto. In the case here such provision for compensation was made, and the requirements of the Fifth Amendment were not violated. United States v. Meyer, 7 Cir., 113 F.2d 387, 392. With the petition there was presented to the court the declaration of taking, and the appraised value of the property, in the sum of $2,168,000, was deposited in the registry of the court for appellant and the others entitled to share therein. Thereupon the court found that the preliminaries required by the act had been complied with. The court *964 fixed the time, after notice, upon which appellant should surrender possession to the petitioner.
Following the provisions of the statute, the court also decreed that the right to just compensation for the property taken vested in the persons entitled thereto, the amount of such compensation to be ascertained and awarded in the proceedings pursuant to law. The law further provides that if just compensation as finally ascertained exceeds the deposit, the court is required to enter judgment against the United States for the amount of deficiency together with interest at the rate of six percent from the date of taking to the date of payment. The Fifth Amendment does not entitle the owner to be paid in advance of the taking where the statute provides for ascertaining just compensation, and the Government has impliedly promised to pay that compensation. Yearsley v. W. A. Ross Construction Co., 309 U.S. 18, 21, 60 S.Ct. 413, 84 L.Ed. 554; Crozier v. Fried Krupp, etc., 224 U.S. 290, 306, 32 S.Ct. 488, 56 L.Ed. 771; Bragg v. Weaver, 251 U.S. 57, 62, 40 S.Ct. 62, 64 L. Ed. 135; Joslin Mfg. Co. v. Providence, 262, U.S. 668, 677, 43 S.Ct. 684, 67 L.Ed. 1167.
Where the federal Government under the Constitution has power to undertake the purposes for which the land is sought to be acquired, then the use is a public one. A military purpose is such a public use. United States v. Forbes, D.C., 259 F. 585. The Congress has authorized the Secretary of War to determine the necessity for acquiring such property and the extent of the taking. Bragg v. Weaver, supra; Barnidge v. United States, 8 Cir., 101 F.2d 295; Hanson Lumber Co. v. United States, supra, 261 U.S. at page 585, 43 S.Ct. 442, 67 L.Ed. 809; United States v. Gettysburg Elec. Ry., 160 U.S. 668, 685, 16 S.Ct. 427, 40 L.Ed. 576.
The purpose of laws such as the one under discussion is to permit the Government in its sovereign capacity to proceed with necessary public works without being hampered by delays which might occasion great and irreparable injury. When the greatest combination of autocratic powers of all time is ruthlessly engaged in an attempt to strangle the liberty of the world, to delay action in achieving military objectives may well be fatal. Here, in an emergency of war, the Government through its Secretary of War, acting under statutes passed for the purpose, has found and declared that the property taken is necessary for military purposes; and provision has been made to recompense the owners fully for the taking. Appellant, however, insists that it should have the right to halt the progress of the work until it can be heard in the various courts to prevent the Government from taking this necessary action. The sovereign state should not be reduced to such impotency. Where the Secretary of War has proceeded as prescribed by the Act of Congress, the court will not go behind his declaration to inquire into his intentions. Old Dominion Land Co. v. United States, 269 U.S. 55, 66, 46 S.Ct. 39, 70 L.Ed. 162; United States v. Forbes, supra, 259 F. at pages 591, 592.
It is also urged that the congressional mandates expressed in the Conformity Statutes, 28 U.S.C.A. § 724, 40 U.S.C.A. § 258, 50 U.S.C.A. § 171, have been violated by the proceedings herein. This position is not tenable. The complaint conforms to the requirements of the Code of Civil Procedure of California, Section 1244, which is sufficient. Central Pac. Ry. v. Feldman, 152 Cal. 303, 92 P. 849. The California decisions are also in harmony with those from the federal courts in holding that due process required no more than that the owner be given an opportunity to be heard at some stage of the proceedings upon reasonable notice of the pending suit. Marblehead Land Co. v. Superior Court, 62 Cal.App. 408, 412, 217 P. 536. Peck v. Superior Court, 138 Cal.App. 222, 31 P.2d 1042. Moreover, the requirement of the statute that the proceedings provided for are to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the states wherever the proceedings may be instituted is not to be so construed as to defeat the purpose of the act. Forbes v. United States, 5 Cir., 268 F. 273, 276; Luxton v. North River Bridge Co., 147 U.S. 337, 13 S.Ct. 356, 37 L.Ed. 194.
The particular manner in which the land is to be used for the purpose of its taking is sufficiently pleaded when set forth in the terms of the statute under which the proceeding is taken. Northern Light, etc., Co. v. Stacher, 13 Cal.App. 404, 109 P. 896. The proceedings here substantially conform to the California law upon the same subject except so far as controlled by the act of Congress under which the proceedings were instituted or by other laws of the United States. Chappell v. United States, 160 U. S. 499, 513, 16 S.Ct. 397, 40 L.Ed. 510.
Affirmed.
NOTES
[1]  § 258a. "In any proceeding in any court of the United States outside of the District of Columbia which has been or may be instituted by and in the name of and under the authority of the United States for the acquisition of any land or easement or right of way in land for the public use, the petitioner may file in the cause, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said lands are thereby taken for the use of the United States. Said declaration of taking shall contain or have annexed thereto

"(1) A statement of the authority under which and the public use for which said lands are taken.
"(2) A description of the lands taken sufficient for the identification thereof.
"(3) A statement of the estate or interest in said lands taken for said public use.
"(4) A plan showing the lands taken.
"(5) A statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken.
"Upon the filing said declaration of taking and of the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein, and the said judgment shall include, as part of the just compensation awarded, interest at the rate of 6 per centum per annum on the amount finally awarded as the value of the property as of the date of taking, from said date to the date of payment; but interest shall not be allowed on so much thereof as shall have been paid into the court. No sum so paid into the court shall be charged with commissions or poundage.
"Upon the application of the parties in interest, the court may order that the money deposited in the court, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in said proceeding. If the compensation finally awarded in respect of said lands, or any parcel thereof, shall exceed the amount of the money so received by any person entitled, the court shall enter judgment against the United States for the amount of the deficiency.
"Upon the filing of a declaration of taking, the court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner. The court shall have power to make such orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as shall be just and equitable."
§ 258b. "No appeal in any cause under section 258 of this title nor any bond or undertaking given therein shall operate to prevent or delay the vesting of title to such lands in the United States."
§ 258c. "Action under section 258a of this title irrevocably committing the United States to the payment of the ultimate award shall not be taken unless the chief of the executive department or agency or bureau of the Government empowered to acquire the land shall be of the opinion that the ultimate award probably will be within any limits prescribed by Congress on the price to be paid."
§ 258d. "The right to take possession and title in advance of final judgment in condemnation proceedings as provided by section 258a of this title shall be in addition to any right, power, or authority conferred by the laws of the United States or those of any State or Territory under which such proceedings may be conducted, and shall not be construed as abrogating, limiting, or modifying any such right, power, or authority."
§ 258e. "In any case in which the United States has taken or may take possession of any real property during the course of condemnation proceedings and in advance of final judgment therein and the United States has become irrevocably committed to pay the amount ultimately to be awarded as compensation, it shall be lawful to expend moneys duly appropriated for that purpose in demolishing existing structures on said land and in erecting public buildings or public works thereon, notwithstanding the provisions of section 255 of this title: Provided, That in the opinion of the Attorney General, the title has been vested in the United States or all persons having an interest therein have been made parties to such proceeding and will be bound by the final judgment therein."


                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

                                 ___________

                                 No. 07-2972
                                 ___________

David Albertson; Robert Albertson,       *
                                         *
              Appellants,                *
                                         *
Posi-Grip Tool Company, Inc.; Zeal       *
Industries, Inc.; Master Craft Tool      * Appeal from the United States
Company, LLC, formerly known as          * District Court for the
Kaskaid Tool Company, LLC,               * District of Minnesota.
                                         *
              Plaintiffs,                * [UNPUBLISHED]
                                         *
      v.                                 *
                                         *
The Stanley Works, a Connecticut         *
corporation; Mac Tools, an Ohio          *
corporation; Petters Group Worldwide, *
LLC,                                     *
                                         *
              Appellees.                 *
                                    ___________

                           Submitted: December 29, 2008
                              Filed: January 8, 2009
                               ___________

Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
                           ___________
PER CURIAM.

       David and Robert Albertson appeal the district court’s1 grant of summary
judgment to defendants following settlement of claims with plaintiff Master Craft
Tool Company, formerly known as Kaskaid Tool Company, LLC. After carefully
reviewing the record and considering appellants’ arguments, we find no basis for
reversing the district court’s order. Accordingly, the judgment is affirmed. See 8th
Cir. R. 47B.
                         ______________________________

      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.

                                        -2-