                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                               File Name: 12a0168p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________

                                                  X
                                                   -
 STRYKER CORPORATION and HOWMEDICA

         Plaintiffs-Appellees/Cross-Appellants, --
 OSTEONICS CORPORATION,

                                                   -
                                                       Nos. 09-2332; 10-2383

                                                   ,
                                                    >
                                       Plaintiff, -
 STRYKER SALES CORPORATION,

                                                   -
                                                   -
                                                   -
            v.
                                                   -
                                                   -
                                                   -
 XL INSURANCE AMERICA, fka Winterthur

          Defendant-Appellant/Cross-Appellee, -
 International America Insurance Company,
                                                   -
                                                   -
                                                   -
                                                   -
 NATIONAL UNION FIRE INSURANCE CO. OF

                                    Defendant. -
 PITTSBURGH, PENNSYLVANIA,
                                                  N
                  Appeal from the United States District Court for the
                     Western District of Michigan at Kalamazoo.
                No. 4:01-cv-157—Robert Holmes Bell, District Judge.
                              Argued: April 10, 2012
                         Decided and Filed: June 5, 2012
               Before: GUY, COLE, and ROGERS, Circuit Judges.

                               _________________

                                    COUNSEL
ARGUED: Jonathan D. Hacker, O’MELVENY & MYERS LLP, Washington, D.C., for
Appellant. David J. Gass, MILLER JOHNSON, Grand Rapids, Michigan, for Appellees.
ON BRIEF: Jonathan D. Hacker, O’MELVENY & MYERS LLP, Washington, D.C.,
Michael W. Betz, David J. Bloss, BLOSS BETZ, Grand Rapids, Michigan, for
Appellant. David J. Gass, D. Andrew Portinga, J. Michael Smith, MILLER JOHNSON,
Grand Rapids, Michigan, for Appellees. Michael F. Smith, THE SMITH APPELLATE
LAW FIRM, Washington, D.C., for Amicus Curiae.

                                         1
Nos. 09-2332; 10-2383      Stryker Corp., et al. v. XL Ins. America                Page 2

                                 _________________

                                       OPINION
                                 _________________

       COLE, Circuit Judge. Stryker Corporation (“Stryker”), a manufacturer of
medical devices, brought an insurance coverage action against its umbrella insurer XL
Insurance America, Inc. (“XL”), seeking coverage for claims stemming from the
implantation of expired artificial knees. The district court held that XL was liable under
the policy for the entirety of Stryker’s losses on both direct claims brought against
Stryker, as well as claims brought against Pfizer that Stryker was obligated to reimburse.
On appeal, XL challenges the district court’s ruling that the XL policy covers the claims
at issue, the ruling that XL was liable for the full amount of Stryker’s losses, and the
ruling that the entire amount owed to Stryker was subject to pre-judgment interest.
Stryker also cross-appeals the award of interest, arguing that it should run through the
entry of the amended judgment, as opposed to terminating upon the entry of the first
final judgment. For the reasons set out below, we AFFIRM the district court’s judgment
with regard to XL’s liability for Stryker’s claims and the interest calculations,
REVERSE the district court’s judgment with regard to all remaining issues, and
REMAND to the district court for further proceedings consistent with this opinion.

                                  I. BACKGROUND

A. The Claims

       In 1997 and 1998, Howmedica, Inc., an Irish company which was a wholly-
owned subsidiary of Pfizer, Inc. (“Pfizer”), manufactured and distributed an artificial
knee joint known as Duracon Unicompartmental Knees (“Uni-Knees”). Stryker Corp.
v. XL Ins. America, Inc., No. 4:01-cv-157, 2007 WL 1031641, at *1 (W.D. Mich. April
3, 2007) (“Stryker I Coverage Opinion”). Key components of the Uni-Knees were made
of ultra-high-molecular-weight-polyethylene (“UHMWPE”). Id. In the mid-1990s, it
was discovered that the standard procedure to sterilize medical devices after
manufacture—gamma irradiation—caused UHMWPE to degrade slowly when exposed
Nos. 09-2332; 10-2383       Stryker Corp., et al. v. XL Ins. America                  Page 3

to the air contained in the device packaging, potentially leading to device failure. Id.
Howmedica and Pfizer determined that, because of this potential problem, Uni-Knees
should have an expiration date of five years after manufacture. Id. To ensure that
expired products did not ship to customers, Pfizer developed a computerized database
program to monitor all of their products containing UHMWPE. Id. However, as became
clear later, Uni-Knees were accidentally not entered into the database.

        At the end of 1998, Stryker acquired Howmedica from Pfizer pursuant to a stock
and asset purchase agreement (“the Agreement”).             Id.   Under the terms of the
Agreement, Stryker was to indemnify Pfizer for any costs associated with claims brought
against Pfizer relating to Howmedica products, such as Uni-Knees.

        In late 1999, a Stryker sales representative prepared an incident report disclosing
that an expired Uni-Knee had been implanted in a patient. Id. at *11. After an
investigation, Stryker believed that the error was “at the hospital end,” i.e., that hospitals
had been using inventory that had been sitting on their shelves past the five-year
expiration date. Id. On December 30, 1999, Elizabeth Staub, Stryker’s Vice President
for Quality Assurance, Regulatory Affairs, and Clinical Research, distributed a
memorandum to Stryker sales personnel, reminding them of the five-year expiration date
and instructing them to reinforce the rule with their customers (“the Staub Memo”). Id.
at *11-12.    By 2000, however, it became clear that the error was on Stryker’s
end—expired Uni-Knees were being kept in Stryker warehouses and from there sold to
hospitals and implanted in patients. Id. at *13. This fact was memorialized in a July 28,
2000, letter to Stryker personnel. Beginning in 2000, Stryker was the subject of lawsuits
from patients who received expired Uni-Knees and had those devices fail after
implantation. In total, seventy-seven suits were brought against Stryker, and many of
those cases also contained claims against Pfizer.

B. The XL Insurance Policy

        For the policy year 2000, Stryker purchased a Commercial General Liability
umbrella policy from Winterthur International America Insurance Company, now known
as XL. The policy provided for $15 million in coverage for each occurrence, and $15
Nos. 09-2332; 10-2383      Stryker Corp., et al. v. XL Ins. America               Page 4

million in aggregate coverage, over a $2 million self-insured retention (“SIL”). The
policy (“the XL policy”) imposes a duty on the part of the insurer to defend suits that
would be covered under the policy, and that any defense costs would be in addition to
the policy limits. The XL policy also required indemnification for “[a]ny [] organization
. . . to whom [Stryker is] obligated by a written insured Contract to provide insurance
such as is afforded by this policy but only with respect to [] liability arising out of
operations conducted by [Stryker] or on [Stryker’s] behalf.” Finally, the XL policy
contained an endorsement related to medical devices (“the Medical Product
Endorsement”), which grouped all medical products with the “same known or suspected
defect or deficiency which is identified by the same advisory memorandum” into one
“batch” or occurrence for coverage purposes. The endorsement provided that the
advisory memorandum set the date at which the batch “occurred” for coverage purposes.
However, the endorsement provided that “[b]atch coverage shall not apply to any loss
which arises out of a defect or deficiency that is known or suspected prior to 1-1-
[20]00.”

       Stryker tendered notice of claims to XL in August 2000, seeking defense and
indemnification under the XL policy. On October 11, 2001, XL notified Stryker that it
was denying coverage under the XL policy, arguing that the claims arise out of a “defect
. . . that [was] known or suspected prior to 1-1-[20]00,” and thus not covered pursuant
to the Medical Product Endorsement.

       Stryker filed suit against XL in the Western District of Michigan on October 4,
2001, seeking defense and indemnification for claims against Stryker related to expired
Uni-Knees under the XL policy (“Stryker I”). Soon after, Pfizer brought suit against
Stryker in the Southern District of New York, alleging that Stryker was obligated to
indemnify Pfizer against claims brought against Pfizer related to the Uni-Knees. That
court eventually granted summary judgment in favor of Pfizer, holding that Stryker was
required to indemnify Pfizer under the Agreement. See Pfizer Inc., v. Stryker Corp., 348
F. Supp. 2d 131, 159 (S.D.N.Y. 2004). Stryker tendered the judgment in the Pfizer case,
$17.7 million plus interest, to XL for indemnification. XL denied that claim as well, and
Nos. 09-2332; 10-2383       Stryker Corp., et al. v. XL Ins. America                 Page 5

so Stryker filed a second action against XL, as well as against the excess insurer, TIG.
Stryker Corp. et al. v. XL Insurance America, Inc. et al., No. 1:05-cv-051-RHB (“Stryker
II”).

C. District Court Proceedings

        Over the course of the ten-year history of this case, the district court issued six
rulings that are relevant on appeal. On April 3, 2007, the district court issued the Stryker
I Coverage Opinion, stemming from a five day bench trial. In that opinion, the district
court held that the XL policy does cover direct claims against Stryker. In a separate
order in Stryker II, the district court held that XL was liable for Stryker’s obligations to
Pfizer under the Agreement

        On December 15, 2008, the district court ruled on Stryker’s motion for summary
judgment, holding that Stryker’s settlements with the underlying plaintiffs, as well as
most of Stryker’s proffered defense costs, were reasonable. 2008 WL 5235886 (W.D.
Mich. Dec. 15, 2008) (“Stryker I Damages Opinion”). The opinion also established that
Stryker was entitled to pre-judgment interest on these sums, without establishing the
amount of that interest. On February 9, 2009, XL entered into a settlement with Pfizer,
under which it would pay $26 million to settle all of Stryker’s liability to Pfizer (“the
Pfizer settlement”). XL thereafter filed a motion for summary judgment, arguing that
the Pfizer settlement exhausted the XL policy, and thus XL was no longer liable for the
sums outlined in the Stryker I Damages Opinion. On October 7, 2009, the district court
denied the motion, holding that XL’s breach of the duty to defend Stryker voided any
limits of liability in the XL policy. 2009 WL 3256179 (W.D. Mich. Oct. 7, 2009)
(“Final Judgment Opinion”). Accordingly, XL was responsible for all of Stryker’s
losses associated with Uni-Knees claims. In addition, the district court entered a final
judgment on the same day, directing the parties to file a motion to amend the judgment
to add the final interest calculation.

        XL appealed that final judgment. XL also filed a cross-motion for relief from
judgment, arguing that it was not subject to pre-judgment interest in light of a recent
Michigan Court of Appeals case which, XL argued, changed the governing law. The
Nos. 09-2332; 10-2383       Stryker Corp., et al. v. XL Ins. America                Page 6

district court denied XL’s motion. 726 F. Supp. 2d 754 (W.D. Mich. 2010) (“First
Interest Opinion”). XL appealed that determination as well. Subsequently, Stryker filed
another motion to amend the judgment, arguing that pre-judgment interest should be
recalculated based on the date of the First Interest Opinion, rather than the Final
Judgment Opinion. The district court denied this motion. 2010 WL 3937180 (W.D.
Mich. Oct. 4, 2010) (“Second Interest Opinion”). Stryker appealed this determination,
and the appeals were consolidated for purposes of review.

                                     II. ANALYSIS

A. General Insurance Principles

         Michigan law, which governs the substantive issues in the case, treats insurance
contracts in the same manner as other contracts. Rory v. Cont’l Ins. Co., 703 N.W.2d 23,
26 (Mich. 2005). Therefore, a court should “give contractual language that is clear and
unambiguous full effect according to its plain meaning unless it violates the law or is in
contravention of public policy.” Westfield Ins. Co. v. Ken’s Service, No. 300941, 2012
WL 752038 (Mich. Ct. App. Mar. 8, 2012). “Under Michigan law, exclusion clauses
and ambiguous provisions in insurance policies are strictly construed against the
insurer.” Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 455 (6th Cir.
2003).

B. Coverage under the XL Policy

         In the Stryker I bench trial, the district court found that the XL policy provides
coverage for claims made against Stryker in connection with Uni-Knees failures.
Factual findings made at a bench trial are reviewed for clear error, which occurs “if,
based on the entire record, we are left with the definite and firm conviction that a
mistake has been committed.” Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d
518, 522 (6th Cir. 2011) (quoting Shelby Cnty. Health Care Corp. v. Majestic Star
Casino, 581 F.3d 355, 364-65 (6th Cir. 2009)). Legal conclusions that stem from factual
findings are reviewed de novo. Id. Under Michigan law, the proper interpretation of an
Nos. 09-2332; 10-2383             Stryker Corp., et al. v. XL Ins. America                             Page 7

insurance policy provision is a legal question, and thus reviewed de novo. Klapp v.
United Ins. Grp. Agency, Inc., 663 N.W.2d 447, 463 (Mich. 2003).

          Whether the XL policy provides coverage turns on the interpretation of the
Medical Products Endorsement. The Medical Products Endorsement alters the definition
of “occurrence” under the policy, such that all claims arising out of a single “known or
suspected defect” are considered to be one occurrence for coverage purposes. Such
“batch coverage,” however, does not apply to “any loss, which arises out of a defect, or
deficiency that is known or suspected prior to 1-1-[20]00.” Thus, if the “defect” occurs
before January 1, 2000, then there is no batch coverage for the underlying claims.1

          Thus, the heart of the dispute between the parties is the precise “defect” that
triggers the batch coverage under the Medical Products Endorsement. The district court
found that “Duracon Uni-Knees were defective if they were available in inventory for
implantation by physicians beyond their shelf-life, that is beyond five years.” Stryker
I Coverage Opinion, 2007 WL 1031641, at *10. While the phrase “in inventory” is
potentially ambiguous, the district court went on to make clear that “in inventory” means
“in Stryker’s inventory.” “In deciding to send the Staub Memo, Ms. Staub never thought
that instances of expired polyethylene that prompted Mr. Irwin’s suggestion could have
been the result of [Stryker] shipping expired polyethylene.” Id. at *12 (emphasis added).
The district court found that it was not until April 2000 that Stryker began to suspect that
the problem stemmed from its own operations. Therefore, in the district court’s view,
“prior to January 1, 2000, no employee of Stryker . . . knew or suspected that Uni-Knees
were available in inventory for implantation by physicians beyond their shelf life.” Id.
at *15.

          XL does not challenge the factual findings of the district court regarding what
facts Stryker personnel knew and when they knew them. Instead, XL argues in essence

          1
            Strictly speaking, the Medical Products Endorsement speaks only to whether batch coverage
applies to the claims against Stryker, not whether there is coverage generally under the policy. However,
the policy limits coverage to “Bodily Injury . . . [or] Personal Injury . . . that takes place during the policy
period . . . .” The policy also contains an exclusion for “Bodily Injury . . . expected or intended from the
standpoint of the insured.” If batch coverage does not apply under XL’s theory, one or both of those
provisions would work to deny coverage to the Stryker claims in toto.
Nos. 09-2332; 10-2383           Stryker Corp., et al. v. XL Ins. America                          Page 8

that “in inventory” should be read as “in anyone’s inventory.”2 XL argues that it is
undisputed that Stryker knew before 2000 (via the Staub Memo) that expired Uni-Knees
were being used by physicians, and that fact is enough to defeat coverage.

         The district court’s construction of the Medical Products Endorsement is the
more reasonable interpretation. Under XL’s theory, if an insured knows that there is
some future scenario under which a product would become defective via expiration, even
if it is completely out of the insured’s hands, then there is no coverage. While XL
focuses on the Staub Memo, under XL’s theory the Uni-Knees were barred from
coverage from day one. Stryker was aware since the mid-1990s that Uni-Knees would
deteriorate after five years of shelf life. Stryker also had to know that it was possible
that some end-user would implant Uni-Knees after five years, despite the warnings
Stryker provided. That would be enough to defeat coverage under XL’s interpretation.
It would also mean that any medical product with an expiration date, such as most
pharmaceuticals, would be uninsurable under the Medical Products Endorsement, since
there is always the chance that the expiration date would not be heeded.

         In addition, insurance contracts should be read “as a whole, giving harmonious
effect, if possible, to each word and phrase.” Wilkie v. Auto-Owners Ins. Co., 664
N.W.2d 776, 781 n.11 (Mich. 2003). The district court determined that the “advisory
memorandum” which locks in the occurrence for batch coverage purposes was the July
28, 2000, memo by Stryker. XL does not challenge this determination on appeal. A
“batch” is defined as “all medical products which have the same known or suspected
defect or deficiency which is identified by the same advisory memorandum.” Thus, in
the first sentence of paragraph 3 of the Medical Products Endorsement, XL does not
dispute that the “known or suspected defect or deficiency” dates to July 28, 2000. Yet,
XL argues that a few sentences later in the same paragraph “defect, or deficiency that
is known or expected” should be interpreted to refer to a different, earlier, date. This is

         2
          Stryker filed a motion to strike this portion of XL’s brief, arguing that it is inconsistent with
XL’s prior theory in the case. Because we reject XL’s argument on the merits, as discussed below, we do
not address Stryker’s argument and dismiss their motion as moot.
Nos. 09-2332; 10-2383       Stryker Corp., et al. v. XL Ins. America                  Page 9

illogical and inconsistent with the requirement to provide a “harmonious effect, if
possible, to each word and phrase.”

        Finally, any question of the interpretation of the policy must cut in favor of
Stryker. As discussed above, XL’s proposed interpretation of the policy would
completely exempt Uni-Knees, and indeed any Stryker products containing UHMWPE,
from coverage. It is highly unlikely that Stryker would have agreed to purchase such an
insurance policy. It is true that Michigan has rejected the rule, applicable in other states,
that insurance contracts should be interpreted to give effect to the reasonable
expectations of the insured. See generally Wilkie, 664 N.W.2d at 782-86. However, the
Michigan Supreme Court has equally emphasized that any ambiguities in an insurance
policy must be construed in favor of coverage and against the insurer. Id. at 786-87.
Thus, to the extent there is any ambiguity as to the meaning of the Medical Products
Endorsement, it must be construed in favor of coverage. At most, XL’s argument creates
an ambiguity in the meaning of the policy language, which would in turn support
coverage under the policy.

        Therefore, we affirm the district court’s judgment that the XL policy provides
coverage for the claims made against Stryker in connection with Uni-Knees.

C. Exhaustion of the XL Policy

        1. Priority of Claims under the XL Policy

        Because we hold that the XL policy covers claims relating to Uni-Knees, we
must consider to what extent those claims exhaust the limits of liability under the policy.
As a preliminary matter, Stryker argues that XL may not apply the Pfizer settlement in
the Stryker II case to the XL policy prior to addressing the direct claims against Stryker
at issue in Stryker I. Stryker’s argument has both a procedural and substantive
component. On the procedural front, Stryker argues that XL’s motion for summary
judgment was rejected by the district court as untimely and improper. Substantively,
Stryker argues that the district court rejected XL’s exhaustion argument because it
violated the “district court’s roadmap” for the case and is inconsistent with the district
Nos. 09-2332; 10-2383      Stryker Corp., et al. v. XL Ins. America               Page 10

court’s entry of judgment in Stryker I. In addition, Stryker argues that XL’s decision to
pay the Pfizer claim first was a contrivance designed to limit XL’s exposure to pre-
judgment interest.

       Stryker’s argument is flawed for several reasons. First, it does not appear that
the district court actually held what Stryker says it did. The district court did conclude
that summary judgment was not the appropriate vehicle for XL’s contentions. The
district court then noted that the motion could be considered a motion for relief from
judgment or reconsideration. Far from rejecting this construction, the district court
concludes that “there does not appear to be a procedural reason why the court could not
do so.” Final Judgment Opinion, 2009 WL 3256179 at *2 (emphasis in original). The
district court then proceeded to reject XL’s argument on the merits. Stryker is simply
incorrect that XL’s motion was rejected on procedural grounds. Moreover, in reaching
the merits, the district court did not mention a “roadmap,” nor discuss a categorical rule
regarding the order that XL must pay its claims. The only two grounds addressed by the
district court relate to the exhaustion (or lack thereof) of the XL policy, as discussed in
Parts II.C.2 and II.C.3, below.

       In addition, even if the district court had ruled as Stryker suggests, such a ruling
would be inconsistent with the language of the XL policy. In the limits of liability
section of the policy, the “General Aggregate Limit” is defined as “the most we will pay
for all damages covered under the Insuring Agreement . . . .” Similarly, in the defense
obligation section of the XL policy, the duty to defend terminates when the “applicable
Limits of Liability have been exhausted by payment of judgments or settlements.” In
both cases, exhaustion turns on the actual payment of money on behalf of the insured,
not when a judgment that would obligate the payment of money is entered. Therefore,
the question of whether the judgment in Stryker I was fully entered prior to the Pfizer
settlement is irrelevant. Instead, the relevant question is at what point XL actually made
provision to pay a claim on behalf of Stryker. As it is clear that XL entered into the
Nos. 09-2332; 10-2383           Stryker Corp., et al. v. XL Ins. America                          Page 11

Pfizer settlement before it paid any claims under Stryker I, the Pfizer settlement can be
used to exhaust the XL policy before considering the Stryker I judgment.3

         2. Consequential Damages

         XL’s liability to Stryker under the policy is limited to the aggregate limit of
liability on occurrences under the XL policy, which is $15 million above the self-insured
retention of $2 million. In Michigan, insurance policies are interpreted in the same
manner as every other contract. Wilkie, 664 N.W.2d at 780. Indeed, the Michigan
Supreme Court has explicitly rejected the approach, taken in other jurisdictions, that
would apply special rules of interpretation to insurance policies distinct from those used
for other commercial contracts. See id. at 782 (rejecting the practice of ”judges
divin[ing] the parties reasonable expectations” as inconsistent with the “bedrock
principle[s] of American contract law”). Therefore, the standard contract rule that any
damages beyond the value of the contract must be proven to “arise naturally from the
breach or those that were in contemplation of the parties at the time the contract was
made,” Lawrence v. Will Darrah & Assoc., Inc., 516 N.W.2d 43, 45 (Mich. 1994)
(quoting Kewin v. Mass. Mut. Life Ins. Co., 295 N.W.2d 50, 53 (Mich. 1980)), applies
to insurance policies. Thus, when an insurer breaches the duty to defend or indemnify
under the policy, the insurer is responsible for “‘expectation interest’ through awarding
damages for the economic loss suffered by the promisee.” Frankenmuth Mut. Ins. Co.
v. Keeley, 447 N.W.2d 691, 705 (Mich. 1989) (Levin, J., dissenting) (emphasis in
original), dissent adopted on rehearing, 461 N.W.2d 666 (Mich. 1990).

         The district court found that the self-insured retention and the aggregate limits
of liability do not apply to the XL policy, because XL breached its duty to defend
Stryker against both the direct claims and the claims in the Pfizer litigation. Final
Judgment Opinion, 2009 WL 3256179 at *4. In reaching both conclusions, the district

         3
           In addition, Stryker cites no Michigan case law stating that an insurer has an obligation to pay
claims in a particular order. Case law in other jurisdictions, however, makes clear that the general rule is
that an insurer may pay claims in any order it chooses. See In re September 11 Prop. Damage Litig., 650
F.3d 145, 153 (2d Cir. 2011) (New York law); Elliott Co. v. Liberty Mut. Ins. Co., 434 F. Supp. 2d 483,
499 (N.D. Ohio 2006) (Ohio, Pennsylvania, Connecticut, New York, and Delaware law).
Nos. 09-2332; 10-2383      Stryker Corp., et al. v. XL Ins. America               Page 12

court relied on Capitol Reproduction, Inc. v. Hartford Insurance Co., 800 F.2d 617, 624
(6th Cir. 1986), which held that “an insured is not required to prove that the amount of
the judgment in excess of the policy limits was caused by the failure of the insurer to
provide a reasonable defense . . . .” (internal quotation marks and citation omitted). In
other words, any losses resulting from a breach of the duty to defend could be assumed
to be consequential losses, and thus would not account against any limits of liability.

       While the Capitol Reproduction court may have correctly applied Michigan law
at the time of the decision, subsequent Michigan decisions have undermined the
rationale and holding of the case. Capitol Reproduction holds that, in an insurance
context only, all losses are assumed to be consequential losses, without the breached
party’s having to demonstrate the connection between the loss and the breach. This is
an extra-contractual rule of the kind the Michigan Supreme Court rejected in
Frankenmuth and Wilkie. As a federal court sitting in diversity, we are obligated to
apply the law of Michigan as it currently stands, even if such an application is
inconsistent with prior case law from this circuit. See Hampton v. United States, 191
F.3d 695, 701 (6th Cir. 1999) (“[A] panel may reconsider [the panel opinion] because
the Michigan courts have expressly indicated . . . that they disagree with [the panel
opinion] and would have decided it differently.”); Harrow Prods., Inc. v. Liberty Mut.
Ins. Co., 64 F.3d 1015, 1025-26 (6th Cir. 1995) (vacating a prior panel decision in light
of a controlling state-law ruling from the Michigan Supreme Court).

       For these reasons, we reverse the district court’s judgment that the aggregate
limit of liability of the XL policy does not apply to the judgments in Stryker I and II. On
remand, the district court should consider what portion, if any, of the total liability for
Stryker I and II judgments beyond $15 million represents consequential damages as
defined under Michigan contract law.

       3. Application of the Pfizer Settlement to the XL Policy Limits

       As an alternate holding, the district court determined that only the actual
settlement payments to Pfizer, not Pfizer’s defense costs or attorney’s fees in connection
with the litigation against Stryker, should count against the limits of the XL policy.
Nos. 09-2332; 10-2383       Stryker Corp., et al. v. XL Ins. America                Page 13

Final Judgment Opinion, 2009 WL 3256179 at *3. In reaching this conclusion, the
district court considered Pfizer’s defense costs in the tort suits together with Pfizer’s
defense costs in the litigation against Stryker. However, a close reading of the XL
policy shows that the two sources of liability for XL are conceptually distinct.

        XL’s obligation to pay Pfizer’s defense costs comes from the “Insured Contract”
provision of the XL policy. The definition of an “Insured” under the XL policy includes
“[a]ny person, organization, trustee or estate to whom you are obligated by a written
Insured Contract to provide insurance such as is afforded by this policy . . . .” “Insured
Contract,” in turn, is defined as “any oral or written contract entered into by you and
pertaining to your business under which you assume the tort liability of another party
. . . .” In the separate section of the policy relating to defense obligations, the XL policy
commits XL to defending “any suit against the Insured seeking damages on account of
Bodily Injury, Property Damage, Personal Injury, or Advertising Injury.” Defense costs
are outside of the aggregate limits of liability: “All expenses we incur in the defense of
any suit or claim are in addition to our Limits of Insurance.”

        Thus, with regard to costs stemming from tort suits against Pfizer, the district
court was correct. The policy defines an “Insured” to include a party to an Insured
Contract, in this case Pfizer. Thus, when Uni-Knees patients brought suits for bodily or
personal injury against Pfizer, the defense provisions of the XL policy were triggered,
and XL had a duty to defend Pfizer. This duty to defend is in addition to policy limits,
so the district court is correct that those costs should not count against those limits.

        XL cites a series of cases which state that a third-party to an Insured Contract is
not entitled to a defense from the insurer. Those cases, however, deal with policies that
do not define the “Insured” to include the third-party Insured Contract beneficiary. See
Raytheon Eng’rs & Constructors, Inc. v. Erie Interstate Contractors, No. 200704705,
2008 WL 2345371, at *4 (Mass. May 14, 2008) (“The question remains, however,
whether TIG owes any duty to a party that is not a named or additional insured under
the policy.”) (emphasis added); Alliance Syndicate, Inc. v. Parsec, Inc., 741 N.E.2d
1039, 1045 (Ill. Ct. App. 2000) (holding that defense obligations do not accrue “[w]here
Nos. 09-2332; 10-2383        Stryker Corp., et al. v. XL Ins. America                  Page 14

[the third party] was not an additional insured under the Alliance policy. . . .”); Alex
Robertson Co. v. Imperial Cas. & Indem. Co., 8 Cal. App. 4th 338, 343 (Cal. Ct. App.
1992) (“[The policy] also provides, ‘[t]he unqualified word ‘Insured’ wherever used
(including endorsements forming a part hereof), shall mean the Named Insured’”) (first
alteration in original). Under the XL policy, the definition of “Insured” includes the
party to the Insured Contract, making Pfizer an additional insured. Thus, those cases are
distinguishable.

        This same logic does not apply to the costs associated with the indemnification
action. First, Pfizer filed suit against Stryker seeking indemnification under the
Agreement, so the claim was not a “suit against the Insured” [i.e. Pfizer]. This places
the action outside of the defense provisions of the XL policy. But even if Stryker had
sued Pfizer, the defense provisions are limited to “suit[s] . . . seeking damages on
account of Bodily Injury, Property Damage, Personal Injury, or Advertising Injury . . .
.” The action between Pfizer and Stryker is none of those things—the parties agree that
Stryker’s obligation for Pfizer’s costs associated with the indemnification dispute arise
out of the terms of the Agreement. Instead, the costs associated with the action between
Stryker and Pfizer stem directly from “liability . . . assumed by the Insured under an
Insured Contract”—in this case the fee-shifting provisions of the Agreement. This
liability is part of the general grant of coverage, and thus subject to the limits of liability.

        Therefore, on remand, the district court should consider Pfizer’s costs stemming
from the indemnification action against Stryker as part of the sum that may be used to
exhaust the $15 million aggregate limit of liability of the XL policy. By contrast,
Pfizer’s costs stemming from defending tort actions related to the Uni-Knees may not
exhaust the XL policy, and XL is liable for those costs notwithstanding the limits of
liability.

D. Pre-Judgment Interest

        The district court applied a pre-judgment interest penalty to XL with respect to
the Stryker I judgment. In doing so, the district court ultimately held that, pursuant to
Mich. Comp. Laws § 500.2006, 12% interest accrues on the indemnification portion of
Nos. 09-2332; 10-2383       Stryker Corp., et al. v. XL Ins. America                 Page 15

Stryker I from the date Stryker settled the underlying tort law suits until entry of the first
Stryker I judgment on October 9, 2009. First Interest Opinion, 726 F. Supp. 2d at 767.
In addition, 12% pre-judgment interest applies to the defense cost portion of Stryker I
from the date the underlying tort suits were submitted to XL until the October 9, 2009
judgment. Id. at 768. XL argues that pre-judgment interest should not apply at all
because the matters were “reasonably in dispute,” and in any event should not apply to
consequential damages. Stryker cross-appeals, arguing all pre-judgment interest should
run until the second amended judgment, entered on July 22, 2010. An award of pre-
judgment interest is reviewed for abuse of discretion. Scotts Co. v. Cent. Garden & Pet
Co., 403 F.3d 781, 788 (6th Cir. 2005).

        1. Application of Michigan Compiled Laws § 500.2006

        Section 500.2006(4) divides insurance claims “not paid on a timely basis” into
two categories. For cases where “the claimant is the insured or an individual or entity
directly entitled to benefits under the insured’s contract of insurance,” the interest rate
is 12% per annum. However, for “third party tort claimant[s],” the interest rate is 12%
per annum “if the liability of the insurer for the claim is not reasonably in dispute, the
insurer has refused payment in bad faith and the bad faith was determined by a court of
law.” Michigan case law has reinforced this distinction and emphasized that first party
insurance claimants need not demonstrate that the claim was “not reasonably in dispute”
in order to recover the 12% interest. Griswold Properties, LLC v. Lexington Ins. Co.,
741 N.W.2d 549, 566 (Mich. Ct. App. 2007) (special panel).

        Relying on Griswold, the district court initially held that the entirety of the
Stryker I judgment was subject to the 12% pre-judgment interest because Stryker was
an “insured,” and thus entitled to pre-judgment interest from the tender of the claim to
XL, regardless of whether the matter was in dispute. The district court reconsidered this
award in light of the intervening Michigan Court of Appeals decision in Auto-Owners
Insurance Co. v. Ferwerda Enterprises., Inc. (Ferwerda I), 797 N.W.2d 168, 175 (Mich.
Ct. App. 2010), where the Michigan Court of Appeals held that a breach of the insurance
contract that was “specifically tied to the underlying third-party tort claim,” was subject
Nos. 09-2332; 10-2383      Stryker Corp., et al. v. XL Ins. America                Page 16

to the “reasonable dispute” rule in § 500.2006(4). In analyzing Ferwerda I, the district
court concluded that a claim is “tied” to the third-party tort claim up until the point
where the insured pays the claim, at which point it is converted into a first-party claim.
First Interest Opinion, 726 F. Supp. 2d at 767. Therefore, the district court modified the
pre-judgment interest award with regard to the settlements, holding that the interest
accrues from the date that Stryker settled the claim. Id. However, with regard to defense
costs, the district court held that they were always “first party” claims, since they are a
benefit due directly to Stryker. Therefore, pre-judgment interest on those claims began
to run when Stryker tendered the claim to XL. Id. at 768.

        XL argues that all pre-judgment interest in this case is subject to the “reasonable
dispute” rule, per Ferwerda I, because the Stryker I judgment stems ultimately from
third-party tort claims against Stryker. Stryker, by contrast, argues that the Michigan
Supreme Court vacated Ferwerda I via its subsequent decision in Ferwerda II. 784
N.W.2d 44 (Mich. 2010) (Ferwerda II). Thus, Stryker argues that we should not
consider Ferwerda I at all, and instead reinstate the district court’s original pre-judgment
interest calculation.

        Stryker’s argument goes too far, because the Michigan Supreme Court reversed
Ferwerda II on other grounds, and at no point does the court say it is vacating the
penalty interest analysis. At most, the Michigan Supreme Court’s corrections turn the
penalty interest analysis in Ferwerda I into dicta.          In the absence of a clear
pronouncement from the Michigan Supreme Court, a federal court sitting in diversity
“must predict how the court would rule by looking to all the available data.” Allstate
Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001). Even if
Ferwerda I is in fact dicta, it was not improper for the district court to consider
Ferwerda I to predict how Michigan courts would handle penalty interest. Nevertheless,
the uncertain status of Ferwerda I does significantly undercut XL’s argument that all
claims stemming ultimately from third party tort actions are always subject to the
“reasonable dispute” rule. This is particularly true because the plain language of the
statute focuses on the identity of the claimant who is seeking benefits from the insurer,
Nos. 09-2332; 10-2383       Stryker Corp., et al. v. XL Ins. America                 Page 17

not the underlying source of the claim. Here, it is undisputed that Stryker is the
claimant, because Stryker already paid off the third-party tort claims. The district
court’s rule is therefore a logical one and one that is consistent with the statutory
language—as long as the “claimant” is a third-party, the “reasonable dispute” rule
applies; the moment the “claimant” becomes the insured, it ceases to apply.

        XL also argues that any consequential damages for which it is liable, such as
attorney’s fees, should not be subject to penalty interest. The district court held that
Stryker’s attorney’s fees were subject to the penalty interest statute, accruing on the date
Stryker submitted the underlying tort claims to XL. First Interest Opinion, 726 F. Supp.
2d at 768. XL argues that this is in error, relying on a provision of § 500.2006(4) which
states that, “[i]f the loss exceeds the limits of insurance coverage available, interest shall
be payable based upon the limits of insurance coverage rather than the amount of the
loss.” XL reads “interest shall be payable based upon the limits of insurance coverage
rather than the amount of the loss” to mean that the court can only apply penalty interest
to the sum that was used to exhaust the policy limits, and not any other sums that would
not be subject to the limits.

        XL’s reading of the statute is unnecessarily narrow. A panel of this court,
interpreting § 500.2006(4), held that attorney’s fees stemming from an insurer’s breach
of the duty to defend were subject to penalty interest. Alticor, Inc. v. Nat’l Union Fire
Ins. Co. of Pa., 345 F. App’x 995, 1001-02 (6th Cir. 2009). A reasonable reading of the
statute is that the insurer is subject to pre-judgment interest on the amount it actually has
to pay to the insured. Such payments in a real sense do not “exceed the limit of
insurance coverage available.” However, to the extent that there are amounts that the
insurer is not liable to pay because they are beyond the limits of liability, those amounts
are not subject to pre-judgment interest. On remand, the district court should follow the
same methodology it used in calculating prejudgment interest. However, the district
court should recalculate the pre-judgment award based on the total amount for which XL
is actually liable to Stryker, including any defense costs and consequential damages.
Nos. 09-2332; 10-2383      Stryker Corp., et al. v. XL Ins. America                Page 18

        2. End-Date for Calculating Pre-Judgment Interest

        Stryker in its cross-appeal argues that the district court should have re-calculated
the pre-judgment interest award from the date of the First Interest Opinion, as opposed
to using the date of the Final Judgment Opinion as the end of the interest period. The
parties agree that pre-judgment interest should run up until the point where the federal
post-judgment interest provisions are triggered. Post-judgment interest is calculated
“from the date of the entry of the judgment . . . .” 28 U.S.C. § 1961(a). The court has
interpreted “judgment,” for purposes of the statute, to mean “any judgment that is not
entirely set aside.” Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 F.3d 414, 429
(6th Cir. 1999). By that definition, the Final Judgment Opinion would be the judgment,
as it contained findings relating to the amount of pre-judgment interest that the First
Interest Opinion did not completely vacate.

        This conclusion is potentially in tension with Scotts. 403 F.3d 781. In Scotts,
the first judgment was followed by two subsequent judgments that modified the total
award, but did not set aside the conclusions of the first judgment. The district court used
the first judgment as the cut-off for pre-judgment interest, but the panel reversed and
remanded to the district court to recalculate interest from the last judgment in the case.
Id. at 792-93. Stryker argues that the court’s rationale in Scotts—that the prevailing
party should be entitled to an extended period of pre-judgment interest—applies with
equal force here.

        Scotts is distinguishable. In Scotts, the first mention of pre-judgment interest in
the opinions of the district court was the final judgment, not any of the earlier judgments.
Id. at 783, 786-88. As the district court stated, the Scotts opinion “merely aligned the
accrual of prejudgment interest with the date that prejudgment interest was first
awarded.” Here, there is no question that pre-judgment interest was awarded by the
district court in the First Interest Opinion. This makes this case factually closer to
Skalka than to Scotts. Thus, we affirm the district court’s judgment with regard to the
date that pre-judgment interest terminates.
Nos. 09-2332; 10-2383    Stryker Corp., et al. v. XL Ins. America            Page 19

                                III. CONCLUSION

       Accordingly, we AFFIRM the district court’s judgment in part, REVERSE in
part, and REMAND for further proceedings consistent with the opinion. In addition, we
DISMISS AS MOOT Stryker’s motion to strike a portion of XL’s Reply Brief.


19 F.Supp. 990 (1937)
PARK McLAIN, Inc., et al.
v.
HOEY, Governor of North Carolina, et al.
District Court, E. D. North Carolina.
July 19, 1937.
*991 Thomas Turner, Jr., of High Point, N. C., and F. A. McCleneghan, of Charlotte, N. C., for complainants.
A. A. F. Seawell, Atty. Gen. of North Carolina, Harry McMullan and T. W. Bruton, Asst. Attys. Gen., of North Carolina, Walter D. Siler and Daniel L. Bell, both of Pittsboro, N.C., and W. B. Rodman, Jr., of Washington, N. C., for defendants.
Before PARKER, Circuit Judge, and MEEKINS and HAYES, District Judges.
PARKER, Circuit Judge.
This is a suit to enjoin the Governor, the Attorney General, and the Commissioner of Revenue of the State of North Carolina from enforcing against complainants certain provisions of an act of the General Assembly of North Carolina, ratified February 24, 1937,[1] entitled "An Act to Regulate the Business of Selling Used Motor Vehicles Brought into the State of North Carolina from Other States," on the ground that the provisions are violative of the commerce clause of the Federal Constitution (article 1, § 8, cl. 3) and the due process clause of the Fourteenth Amendment thereto. The complainants are either citizens and residents of the State of North Carolina or corporations created and existing under the laws of that state, and all have fixed and established places of business within the state and are engaged in the sale of used motor vehicles brought into North Carolina from without the state. It is admitted that as to each of them the suit involves exceeding $3,000 exclusive of interest and costs. As interlocutory injunction was originally asked, a court of three judges was constituted pursuant to section 266 of the Judicial Code, as amended, 28 U.S.C.A. § 380, to pass upon the application for same; but, upon the hearing, the case was submitted for final decree upon the pleadings and affidavits filed.
The pertinent sections of the statute in question are sections 1 and 3, which are as follows:
"Section 1. Every dealer in used, or second hand, motor vehicles who is a nonresident of the State of North Carolina or who does not have a permanent place of business in this State, and every person, firm or corporation who bring any used, or second hand, motor vehicles into the State of North Carolina for the purpose of sale or re-sale, except as a trade-in on a new motor vehicle or another used car, shall before offering the same for sale within ten days from the date of entry of said motor vehicle into the limits of the State of North Carolina, register such motor vehicle with the Department of Revenue on a form to be provided by said department and under such rules and regulations as may be promulgated by said department from time to time, and shall before said used or second hand car is offered for sale, or sold, execute a bond with two good sufficient sureties, or with a surety company duly authorized to do business in the State of North Carolina as a surety or sureties thereon, payable to the State of North Carolina, for the use and *992 benefit of the purchaser and his vendees, conditioned to pay all loss, damages and expenses that may be sustained by the purchaser and/or vendees, that may be occasioned by reason of the failure of the title of such vendor or by reason of any fraudulent misrepresentations or breaches of warranty as to freedom from liens, quality, condition, use or value of the motor vehicle being sold. Said bond shall be in the full amount of the sale price of each of such motor vehicles but in no event to exceed the sum of one thousand ($1,000.00) dollars for any one motor vehicle, and shall be filed with the Department of Revenue of the State of North Carolina by the vendor and be approved by it as to amount, form and as to the solvency of the surety or sureties, and for which service by said department, in registering said vehicle, the vendor shall pay the regular registration fee charged for the registration of motor vehicles and in addition thereto a fee of ten ($10.00) dollars for each bond so filed and approved, which sums shall be paid into the State Treasury to the credit of the General Fund and expended as provided by law."
"Section 3. No action, nor right of action to recover any such motor vehicle, nor any part of the selling price thereof, shall be maintained in the courts of this State by any such dealer or vendor, his successors or assigns, in any case wherein such vendor or dealer shall have failed to comply with the terms and provisions of this Act, and, in addition thereto, such vendor or dealer, upon conviction for violation of any of the provisions of this Act, shall be deemed guilty of a misdemeanor and shall be punished by a fine of not less than one hundred ($100.00) dollars and not more than five hundred ($500.00) dollars, or by imprisonment for not less than thirty days, or more than six months, or by both such fine and imprisonment."
Complaint is made of the provision of the statute requiring bond as a condition of offering for sale any used car brought from without the state and of the requirement that a fee of $10 be paid for each bond so filed. No question is raised as to the validity of the provision requiring registration with the Commissioner of Revenue, nor as to another provision, not quoted, requiring that certificate of title issued by the Commissioner of Revenue be delivered to the purchaser upon sale of such car. And, as the complainants are either citizens of the state or domestic corporations and as all have a permanent place of business within the state, it is not necessary to consider the validity of the statute as applied to nonresidents or to persons who do not have a permanent place of business within the state. The question which arises for our decision, therefore, is narrowed to this: May the state lawfully require the bond and fee prescribed by the statute with respect to the sale of used automobiles brought from without the state, when no such requirement is made with respect to the sale of other used automobiles? In other words, can interstate commerce in used automobiles be burdened in this way? It is clear, we think, that the question must be answered in the negative.
It will be noted that the bond required is to relate, not merely to the title of the vehicle and to its freedom from liens, but also to loss, damage, and expense by reason of fraudulent representation or breach of warranty as to quality, condition, use, or value; and the proofs leave no doubt that the furnishing of such a bond will be expensive and burdensome and will place out-of-state used automobiles at a great disadvantage in competition with used automobiles from within the state. The $10 fee required upon deposit of each bond is not shown to have any reasonable relation to the cost of registering the title, but on the contrary is imposed in addition to the regular fees for such registration. It nowhere appears, from the statute or otherwise, that it is imposed as reimbursement for any expense incurred by the state, and the statute directs that it be paid into the general fund. The exaction of the fee cannot be justified, therefore, as a reimbursement of expense incurred by the state. Ingels v. Morf, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. ___. And it is clear that, like the requirement of the bond, it imposes a burden upon interstate commerce in used motor vehicles. The proof is that the exaction of this fee and the cost which would be entailed in securing the bond required by the statute would have the effect of preventing several of complainants from attempting to deal in such vehicles.
It is argued that, as neither the posting of the bond nor the payment of the fee is required until after the used motor vehicles have come to rest and have become a part of the property subject to the jurisdiction of the state, the commerce *993 clause is not applicable; reliance being placed upon the decision of the Supreme Court of Florida in State ex rel. Leathers v. Coleman, 123 Fla. 23, 166 So. 226. There is no question about property which has come to rest within a state, after transportation in interstate commerce has ceased, being subject to the power of the state. Minnesota v. Blasius, 290 U.S. 1, 54 S.Ct. 34, 78 L.Ed. 131; Atlantic Coast Line R. Co. v. Standard Oil Co. (C.C.A.4th) 12 F. (2d) 541, 60 A.L.R. 1456. But it is equally well settled that the state may not in the exercise of such power discriminate against property which has thus been brought in from other states; for to do so is to burden interstate commerce in violation of the commerce clause of the Constitution. Welton v. Missouri, 91 U.S. 275, 279, 23 L.Ed. 347; Howe Mach. Co. v. Gage, 100 U.S. 676, 678, 25 L.Ed. 754; Guy v. Baltimore, 100 U.S. 434, 25 L.Ed. 743; Webber v. Virginia, 103 U.S. 344, 26 L.Ed. 565; Walling v. Michigan, 116 U.S. 446, 6 S.Ct. 454, 458, 29 L.Ed. 691; I. M. Darnell & Son Co. v. Memphis, 208 U.S. 113, 28 S.Ct. 247, 251, 52 L.Ed. 413; Bethelhem Motors Corporation v. Flynt, 256 U.S. 421, 41 S. Ct. 571, 65 L.Ed. 1029; Gramling v. Maxwell (D.C.) 52 F.(2d) 256; In re Schechter (C.C.) 63 F. 695. The rule is thus tersely stated by Mr. Justice Swayne in Howe Mach. Co. v. Gage, supra: "A law which requires a license to be taken out by pedlers who sell articles not produced in the State, and requires no such license with respect to those who sell in the same way articles which are produced in the State, is in conflict with the power of Congress to regulate commerce with foreign nations and among the several States. This power applies to articles taken from one State into another, until they become mingled with and a part of the property of the latter, and thereafter protects such articles from any burden imposed by reason of their foreign origin." (Italics ours.)
As both the bond and the fee required by the statute here under consideration constitute a clear discrimination against used automobiles of foreign origin, the provisions requiring them must be held invalid under the commerce clause of the Constitution, and it is not necessary to consider the questions raised under the due process clause of the Fourteenth Amendment. Argument, that it is proper for the state in the exercise of its police power to guard against the frauds perpetrated in the sale of used automobiles, is beside the point. Such power may, of course, be exercised by the state, provided it is exercised in such way as not to discriminate against used cars which have been brought into the state in interstate commerce. If it is thought that the sale of such cars furnishes peculiar opportunities for fraud, the answer is that if regulation of interstate commerce in used cars is deemed desirable, it must be remembered that it is Congress, and not the State Legislatures, to whom the people have delegated the power of regulating such commerce.
Decree will be entered, therefore, enjoining the defendants from enforcing against complainants the provisions of the statute with respect to the filing of bond and the payment of fee of $10 on filing same, or from enforcing against complainants the penal provisions of the statute for failing to comply with such provisions relating to bond and fee.
Decree accordingly.
NOTES
[1]  Pub.Laws 1937, c. 62.


778 F.2d 194
1986 A.M.C. 1197
TRANSAMERICA ICS, INC.;  CTI-Container Leasing Corporation;Continental Illinois National Bank & Trust Company ofChicago;  National Westminster Bank USA (formerly NationalBank of North America) and Banque de la Societe FinanciereEuroppenne, Plaintiffs,andT. Smith & Son, Inc. and Crescent Towing & Salvage Co.,Inc.;  Palmetto Shipping & Stevedoring Company, Inc. andPalmetto Stevedoring of Georgia;  James L. Hewitt andWilliam H. Rattenbury and Roger E. Donegan and Associationof Maryland Pilots;  Texaco International Trader, Inc.;  A.E. Braendly and R. E. Cox and B. J. Mercereau and E. F.Sweeney, Jr. and J. D. Hasson and James McIntyre and NewJersey Sandy Hook Pilots Benevolent Assoc. and New YorkSandy Hook Pilots Benevolent Assoc.;  The Hartford InsuranceCompany, A. I. Marine Adjusters, Inc., Toplis & Harding,Inc., Fireman's Fund Insurance Companies and W. Cox & Co.,Recoveries, Ltd.;  Atlantic Towing Company;  MarineContracting & Towing Company and Charleston Marine DockingMasters;  Charleston Line Handling Corporation;  and WorldShipping, Inc., Intervening Plaintiffs,andMorgan Guaranty Trust Company of New York, Appellee,v.M/V HELLENIC SUN, her engines, tackle, apparel, etc. andHellenic Lines, Limited, Defendants.In re UNITED STATES of America on behalf of the UNITEDSTATES MARSHALS SERVICE, Appellant.
No. 84-2220.
United States Court of Appeals,Fourth Circuit.
Argued Oct. 10, 1985.Decided Dec. 2, 1985.

David V. Hutchinson, Sr. Admiralty Counsel, Torts Branch, Civil Div., U.S. Dept. of Justice (Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellant.
James A. Johnson and William R. Dorsey, III (Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellee.
Before MURNAGHAN, CHAPMAN and SNEEDEN, Circuit Judges.
CHAPMAN, Circuit Judge:

1
This case arises from a dispute between Morgan Guaranty Trust Co. of New York (Morgan) and the United States over the amount of the United States Marshal's commission on the sale of a container ship.  The district court held that 28 U.S.C. Sec. 1921, which fixes the commission at a percentage of the sale price, is so modified by 28 U.S.C. Sec. 1920 that the district court may exercise discretion over the amount of the commission.  Having so read the law, the district court reduced the Marshal's commission below the amount prescribed by Sec. 1921, and the United States appeals.  Finding no discretion over the amount of the Marshal's commission, we reverse.

2
* In November 1983, Morgan and other creditors of Hellenic Lines, Ltd. began an in rem proceeding against the M/V Hellenic Sun in the United States District Court for the District of Maryland.  After the ship was arrested by the United States Marshal, Morgan moved for the interlocutory sale of the vessel.  The motion was granted.  In its order, the court directed the United States Marshal to sell the ship at public auction for not less than $4,000,000.  The marshal was directed to secure the services of a professional ship broker to advertise this sale and actually conduct the auction.  The court also ordered the marshal to employ a local ship's agent, Ramsay, Scarlett & Co., to act as the marshal's agent, and in that capacity to preserve the vessel, handle the cargo and collect the freights.  At auction, Morgan's bid of $4,000,000.00 was the only bid received.

3
After the sale, the marshal applied to the court for a commission of $40,015, which he claimed was due him under 28 U.S.C. Sec. 1921.  The relevant parts of that statute provide:

4
Only the following fees of United States marshals shall be collected and taxed as costs, except as otherwise provided:

5
* * *

6
* * *

7
For seizing or levying on property (including seizures in admiralty), disposing of the same by sale, setoff, or otherwise and receiving and paying over money, commissions of 3 per centum on the first $1,000 of the amounts collected and 1- 1/2 per centum on the excess of any sum over $1,000....  In all cases in which the vessel or other property is sold by a public auctioneer, or by some party other than the marshal or his deputy, the commission herein authorized to be paid to the marshal shall be reduced by the amount paid to said auctioneer or other party;

8
The marshal applied this statutory formula to the sales price of $4,000,000.00, yielding a commission of $60,015.00.  The marshal subtracted the amount of the auctioneer's fee, $20,000.00, from the commission, as required by the statute, leaving $40,015.00.

9
Morgan moved to have the commission reduced to $8,000 on the ground that the sum sought by the marshal was so high as to be inequitable.  The marshal took the position that his commission was fixed by Sec. 1921 and could not be reduced by the court.  Morgan asserted that 28 U.S.C. Sec. 1920 so modified Sec. 1921 as to give the court discretion over the amount of the commission.  The district court agreed and reduced the marshal's commission to $12,529.  The court reached this figure by ordering Ramsay, Scarlett & Co.'s fee to be paid out of the marshal's commission.  Properly, Ramsey, Scarlett & Co.'s agency fee would be an administrative expense to be paid from the proceeds of the sale and not from the marshal's commission.  The United States appeals.

II

10
The question presented is simple:  Whether the district court has discretionary authority to modify a marshal's commission prescribed by 28 U.S.C. Sec. 1921.  We hold that it does not.

11
Morgan urges that Sec. 1921 be construed in concert with Sec. 1920, so as to permit the discretionary language in Sec. 1920 to modify Sec. 1921.  Section 1920 reads as follows:

12
A judge or clerk of any court of the United States may tax as costs the following:

13
(1) Fees of the clerk and marshal;

14
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;

15
(3) Fees and disbursements for printing and witnesses;

16
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;

17
(5) Docket fees under section 1923 of this title.A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.  June 25, 1948, c. 646, 62 Stat. 955.

18
The district court, relying on precedent within the district, Universal Maritime Services Corp. v. M/V Fontenoy, 1980 A.M.C. 1645 (D.Md.1980), was willing to read the discretionary language of Sec. 1920 into Sec. 1921.  We are not.

19
There is no ambiguity in Sec. 1921;  its language is clear and its meaning precise.  Where the terms of a statute are unambiguous, judicial inquiry is complete, except in rare or exceptional circumstances.   Rubin v. U. S., 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981).  No such circumstances are present here.

20
The marshal's commissions reimburse the federal government for the services rendered to private litigants by the United States Marshals.  Section 1921 is intended to provide a uniform method of computing those commissions.   Coast Engine and Equipment v. C. Harvester, Inc., 641 F.2d 723 (9th Cir.1981).  This principle of uniformity, which Congress seeks to establish through Sec. 1921, cannot survive the exercise of judicial discretion.  No longer would there be one method for computing these commissions, for each district would have its own formula and each judge his own criteria.  Particularly in admiralty, with its special need of uniformity, such deviation from congressional design would be ill advised.

21
For these reasons we reverse and remand to the district court so that it may enter an order awarding the United States Marshal a commission of $40,015.00.

22
REVERSED AND REMANDED.


765 F.2d 152
**Dappoloniav.Glisson
84-3720
United States Court of Appeals,Eleventh Circuit.
5/28/85

1
M.D.Fla.

AFFIRMED

2
---------------

** Local Rule:  25 case.


799 F.2d 751Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.State of North Carolina, Appelleev.Byron Carlton Cumber, Appellant.
No. 86-7090.
United States Court of Appeals, Fourth Circuit.
Submitted July 31, 1986.Decide:  Aug. 29, 1986.

Before RUSSELL, HALL and PHILLIPS, Circuit Judges.
PER CURIAM.

1
(Byron Carlton Cumber, Appellant Pro Se.)

PER CURIAM:

2
A review of the record and the district court's opinion discloses that this appeal from that court's order denying the petition for removal pursuant to 28 U.S.C. Sec.  1443 is without merit.*   Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument, deny leave to proceed in forma pauperis, and dismiss the appeal on the reasoning of the district court.  North Carolina v. Cumber, Misc.  No. 86-30-5 (E.D.N.C., Mar. 6, 1986).

3
DISMISSED.

*
 To the extent that Cumber's petition seeks alternative relief in the form of an injunction against further state criminal proceedings, Younger v. Harris, 401 U.S. 37 (1971), clearly bars the grant of such relief


                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

      ___________

      No. 07-1754
      ___________

Carl Franklin Cook,                     *
                                        *
             Appellee,                  *
                                        *
       v.                               *
                                        *
David Gibbons, Prosecuting              *
Attorney, Pope County,                  *
                                        *
             Defendant,                 *
                                        *   Appeals from the United States
Johnny Casto, Agent, 5th Judicial       *   District Court for the Eastern
District Drug Task Force,               *   District of Arkansas.
                                        *
             Appellant,                 *   [UNPUBLISHED]
                                        *
William Kelly, Agent, 5th Judicial      *
District Drug Task Force; Scott         *
Harper, Agent, 5th Judicial District    *
Drug Task Force,                        *
                                        *
             Defendants,                *
                                        *
Dale Swesey, Criminal Investigator,     *
Arkansas State Police,                  *
                                        *
             Appellant,                 *
                                        *
Richard Hoffman, Criminal Investigator, *
Arkansas State Police; Hoyt Harness,    *
Criminal Investigator, Little Rock      *
CID; Mark Blankenship, Criminal        *
Investigator, Little Rock CID,         *
                                       *
              Defendants,              *
                                       *
Kevin Webb, Criminal Investigator,     *
Little Rock CID,                       *
                                       *
              Appellant,               *
                                       *
Mark Thompson, Criminal Investigator, *
Jonesboro CID,                         *
                                       *
              Defendant,               *
                                       *
Nick Castro, Criminal Investigator,    *
Fort Smith CID,                        *
                                       *
              Appellant,               *
                                       *
Robert Speer, Arkansas Highway Police, *
                                       *
              Defendant,               *
                                       *
Jeff Crow, Arkansas Highway Police;    *
Jeff Jester, Arkansas Highway Police;  *
Bobby Alcon, Arkansas Highway          *
Police; Joel Eubanks, Arkansas         *
Highway Police, Harrison, Arkansas,    *
                                       *
              Appellants,              *
                                       *
Charlie Edmondson, Arkansas Highway *
Police, Fort Smith, Arkansas,          *
                                       *
              Defendant,               *
                                       *

                                     -2-
Bryan Davis, Arkansas Highway Police,    *
Fort Smith, Arkansas; Kevin              *
Richmond, Fort Smith Special             *
Operations,                              *
                                         *
              Appellants,                *
                                         *
Jay Winters, Sheriff, Pope County;       *
Caldwell, Deputy Sheriff, Pope           *
County; Kyle Drown, Sgt., Arkansas       *
State Police; Johnathan Freeman,         *
Pottsville Police Department; David      *
Hyden, Sgt., Arkansas State Police;      *
Dwayne Luter, Sgt., Arkansas State       *
Police; Charles Martin, Atkins Chief of *
Police; Rick Martin, Pottsville Chief of *
Police; Chris Ridenhour, Russellville    *
Police Department; Tim Whittenberg,      *
Atkins Asst. Chief of Police; Mars,      *
Colonel Coordinator for the Arkansas     *
State Police S.W.A.T. and/or Assault     *
Team and/or Entry Team, for              *
the State of Arkansas sued in his        *
individual capacity; Scott Walls,        *
Criminal Investigator for Little Rock    *
CID, Little Rock, Arkansas sued in his *
individual capacity; Jeff Chandler,      *
Assistant Prosecuting Attorney for the *
Fifth Judicial District of Arkansas sued *
in his individual capacity; Ben Cross,   *
Arkansas State Police; Jimmy Casto,      *
Criminal Investigator for Russellville   *
Police Department and Fifth Judicial     *
Drug Task Force sued in his individual *
capacity,                                *
                                         *
              Defendants.                *

                                       -3-
      ___________

      No. 07-1785
      ___________

Carl Franklin Cook,                     *
                                        *
             Appellee,                  *
                                        *
      v.                                *
                                        *
David Gibbons, Prosecuting              *
Attorney, Pope County; Johnny           *
Casto, Agent, 5th Judicial District     *
Drug Task Force; William Kelly,         *
Agent, 5th Judicial District Drug       *
Task Force; Scott Harper, Agent, 5th    *
Judicial District Drug Task Force;      *
Dale Swesey, Criminal Investigator,     *
Arkansas State Police; Richard          *
Hoffman, Criminal Investigator,         *
Arkansas State Police; Hoyt Harness,    *
Criminal Investigator, Little Rock CID; *
Mark Blankenship, Criminal              *
Investigator, Little Rock, CID; Kevin *
Webb, Criminal Investigator, Little     *
Rock CID; Mark Thompson, Criminal *
Investigator, Jonesboro CID; Nick       *
Castro, Criminal Investigator, Fort     *
Smith CID; Robert Speer, Arkansas       *
Highway Police; Jeff Crow, Arkansas *
Highway Police; Jeff Jester, Arkansas *
Highway Police; Bobby Alcon,            *
Arkansas Highway Police; Joel           *
Eubanks, Arkansas Highway Police,       *
Harrison, Arkansas; Charlie             *
Edmondson, Arkansas Highway             *

                                       -4-
Police, Fort Smith, Arkansas;            *
Bryan Davis, Arkansas Highway            *
Police, Fort Smith, Arkansas; Kevin      *
Richmond, Fort Smith Special             *
Operations; Jay Winters, Sheriff,        *
Pope County; Caldwell, Deputy Sheriff,   *
Pope County; Kyle Drown, Sgt.,           *
Arkansas State Police; Ben Cross,        *
Arkansas State Police; Johnathan         *
Freeman, Pottsville Police Department;   *
David Hyden, Sgt., Arkansas State        *
Police; Dwayne Luter, Sgt., Arkansas     *
State Police,                            *
                                         *
              Defendants,                *
                                         *
Charles Martin, Atkins Chief of          *
Police,                                  *
                                         *
              Appellant,                 *
                                         *
Rick Martin, Pottsville Chief of         *
Police; Chris Ridenhour, Russellville    *
Police Department; Tim Whittenberg, *
Atkins Asst. Chief of Police; Jimmy      *
Casto, Criminal Investigator for         *
Russellville Police Department and       *
Fifth Judicial Drug Task Force sued      *
in his individual capacity; Mars,        *
Colonel Coordinator for the Arkansas *
State Police S.W.A.T. and/or Assault     *
Team and/or Entry Team, for the State *
of Arkansas sued in his individual       *
capacity; Scott Walls, Criminal          *
Investigator for Little Rock CID, Little *
Rock, Arkansas sued in his individual *
capacity; Jeff Chandler,                 *

                                         -5-
Assistant Prosecuting Attorney            *
for the Fifth Judicial District of        *
Arkansas sued in his individual           *
capacity,                                 *
                                          *
             Defendants.                  *
                                     ___________

                               Submitted: September 26, 2008
                                  Filed: January 20, 2009
                                   ___________

Before MURPHY, BYE, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Carl Cook filed this 42 U.S.C. § 1983 action against thirty-four individuals,
most of whom were members of an Arkansas State Police (ASP) SWAT team or the
Fifth Judicial Drug Task Force (DTF), and he claimed, in relevant part, that they used
excessive and unreasonable force in the execution of a no-knock search warrant at his
home on July 13, 1999, needlessly and maliciously damaging his residence and
personal property, in violation of his rights under the Fourth and Fourteenth
Amendments. After the district court disposed of the parties’ motions for dismissal
or summary judgment, ten law-enforcement officers--DTF agent Johnny Casto; ASP
SWAT team commander Dale Swesey; ASP officers Kevin Webb, Nick Castro, Jeff
Crow, Jeff Jester, Bobby Alcon, Bryan Davis, Kevin Richmond, and Joel Eubanks--
appeal the denial of their motions for summary judgment based on qualified immunity
(No. 07-1754). In addition, in a consolidated appeal (No. 07-1785), City of Atkins,
Arkansas, Chief of Police Charles Martin challenges the denial of his motion for

                                         -6-
summary judgment based on qualified immunity.1 For the reasons that follow, we
reverse and remand in both appeals.

        A district court’s pretrial denial of qualified immunity is an immediately
appealable interlocutory order to the extent the denial turns on an issue of law;
appellate jurisdiction is limited to determining whether, viewing the facts in the light
most favorable to the plaintiff, the defendant violated the plaintiff’s clearly established
constitutional or statutory rights, of which a reasonable person would have known.
See Walker v. City of Pine Bluff, 414 F.3d 989, 991-92 (8th Cir. 2005) (when district
court has denied qualified immunity on ground that material facts are disputed,
reviewing court may not review sufficiency of any evidence that is disputed). It is
well settled that the Fourth Amendment protects against unreasonable or unnecessarily
destructive searches and seizures. See Ginter v. Stallcup, 869 F.2d 384, 388 (8th Cir.
1989) (per curiam). On the other hand, “officers executing search warrants on
occasion must damage property in order to perform their duty.” See Dalia v. United
States, 441 U.S. 238, 258 (1979) (manner in which warrant is executed is subject to
later judicial review as to its reasonableness). Thus, the question before this court is
whether the facts, viewed in a light most favorable to Cook where disputed, show
appellants acted objectively reasonably in executing the no-knock search warrant on
July 13, 1999. See Anderson v. Creighton, 483 U.S. 635, 641 (1987) (qualified
immunity analysis does not involve inquiry into official’s subjective intent; official’s
subjective beliefs about search are deemed irrelevant).

      The summary judgment evidence, viewed most favorably to Cook where
genuinely in dispute, established the following. On July 12, 1999, DTF investigators
arranged for a confidential informant (CI) to go to Cook’s residence to purchase
methamphetamine using marked bills and wearing a body wire and recording device

      1
       Pope County Sheriff Jay Winters is the only defendant who did not appeal the
denial of his motion for summary judgment.

                                           -7-
to enable investigators who were conducting surveillance nearby to monitor the
transaction. At some point, Cook was advised by Sandra Burris, with whom he
resided, that she could hear his conversation with the CI on a police scanner, after
which Cook searched the CI, who had been able to remove the body wire and
recording device, but not a piece of tape. During the ensuing hours, Cook questioned
the CI and threatened him verbally and physically with a machete or sword. Both
eventually left the premises in Cook’s vehicle, without being observed by the
surveillance team, and Cook released the CI, who contacted the investigators in the
early morning hours on July 13. Cook returned home, where he and Burris rapidly
packed and left, again undetected by law enforcement. Later in the morning on July
13, 1999, officers obtained a no-knock search warrant to look for the recording device,
the body wire, the buy money, and methamphetamine. They believed that Cook
remained at his residence, and, based on information furnished by the CI, that he was
armed and dangerous. Further, a prior search of Cook’s property had revealed
firearms hidden in a “trap wall”; Cook had a history of keeping exotic animals (e.g.,
a lion); and he had a history of refusing to submit willingly to arrest.

        DTF officers and ASP SWAT team members assembled and set up a command
post near Cook’s residence, to secure the residence, to apprehend Cook, and to
execute the search warrant. After unsuccessful attempts were made to contact Cook
or someone in the residence by phone, two officers saw what appeared to be
movement in the house. SWAT team commander Swesey, believing that Cook was
in the residence and aware of the officers’ presence, ordered a “high-risk” entry. The
breaching team (Davis, Castro, and Richmond) introduced chemical agents (tear gas
or oleoresin capsicum (OC) gas) and diversionary devices (flash grenades or “flash
bangs”) into the residence in the early afternoon, through a bedroom window and a
living room window, and thereafter rammed the side door. The entry team (Webb,
Crow, Eubanks, Jester, and Alcon) then went into the residence and conducted a
protective sweep, using additional diversionary devices in some areas of the residence,
including in the attic, before concluding after about thirty minutes that no one was

                                         -8-
present. Some six to ten devices (OC gas and flash bangs combined) were used before
and after entry. Swesey described the residence as a “typical doper house,” meaning
it was cluttered and unkempt, with piles of clothes everywhere and dishes and food
left out. The diversionary devices had scorched some of the floors and personal
property, and at least one small fire broke out. After the SWAT team finished its
protective sweep, DTF agent Casto, Pope County Sheriff Jay Winters, and others
conducted a search of the premises. Swesey testified he did not observe a large
amount of damage aside from general disarray and a ladder stuck in the ceiling.

        During the entry and search, two windows and the latches on a pair of doors
were broken. The contents of a trash can were dumped into a washing machine, and
laundered clothes were removed and left on the floor. The ceiling was damaged, some
wires were melted, and a ladder which had been used to gain access to the attic was
left protruding into the ceiling. One hole had been knocked in a wall in a closet or
storage area. Two framed family photographs had been damaged after falling off the
wall or a shelf, and several collectable dolls had been broken. Clothing piled on the
floor had been trampled, some over scorched spots on the floor. The beds in Burris’s
children’s rooms had been overturned. A personal computer had been sprayed with
foam (apparently to subdue a fire) and was destroyed. A wicker chair was destroyed
when an object went through it, and a crossbow arrow was lodged into the living room
wall. Two panels of insulation were torn off the outside of the residence where there
had been no siding. In addition, a snake survived the breach and entry of the
residence, but a ferret did not. Further, when Burris returned to the residence a week
later, she found the white dove she kept in a cage on the front porch had died, perhaps
of heat stroke, and she also found her dog lying dead in the driveway.

       Chief Martin attested that he was asked to be present at Cook’s residence when
the search was executed, but he did not participate in the planning or execution of the
search warrant or the initial entry of the residence. Those defendants, including
Martin, who attested that they were not involved in searching for items further attested

                                          -9-
that they did not purposely or maliciously destroy any property, or observe others
doing so; other defendants attested that they were involved in searching for items, and
also attested that they did not purposely or maliciously destroy any property, or
observe others doing so.

      The searching officers did not find the body wire, the buy money, firearms, or
any methamphetamine, but they did locate the recording device. Cook was
apprehended a few days later and eventually he was convicted of drug, conspiracy,
and theft offenses. See Cook v. State, 68 S.W.3d 308 (Ark. Ct. App. 2002).

       We first note that Cook did not directly refute defendants' evidence that Captain
Martin was uninvolved in causing any unnecessary property damage and that Martin
had no authority to direct the actions of others. The district court concluded, however,
that there was a genuine issue of fact concerning the extent of Martin's involvement
in the search, a conclusion not reviewable on interlocutory appeal. See Johnson v.
Jones, 515 U.S. 304, 313 (1995); Walker v. City of Pine Bluff, 414 F.3d 989, 991 (8th
Cir. 2005). After our review of the record we conclude that Martin is entitled to
qualified immunity for the same reasons as the other officers alleged to have been
involved in the search.

       We conclude that the law-enforcement officers, armed with a valid no-knock
search warrant, initially acted reasonably on their belief that Cook was armed and
dangerous, given the events that transpired with the CI the night before and morning
of the search, given Cook’s history of owning a lion and having significant numbers
of firearms and storing some of them within the walls in trap doors, and given that
they did not see him leave his residence. In other words, it was not “unnecessarily
destructive” and was thus reasonable for the breach and entry teams to have
introduced OC gas and flash grenades, apparently breaking two windows in the
process, before ramming a side door and thereby damaging latches. See Hummel-
Jones v. Strope, 25 F.3d 647, 650, 653 (8th Cir. 1994) (how best to proceed in

                                         -10-
performing search is generally left to discretion of officers executing warrant, but even
valid warrants must be executed in reasonable manner); United States v. Baker, 16
F.3d 854, 855-56 (8th Cir. 1994) (officers’ use of distraction stun device, without
knocking and announcing, was needed to effect safe entry and therefore reasonable
where officers possessed information that front door was barricaded and that two
Doberman Pinschers were inside); Ginter, 869 F.2d at 388-89 (starting fire to force
suspect, reasonably believed to be armed and dangerous murderer, out of house was
not unnecessarily destructive). Further, Cook did not refute defendants’ evidence that
once the residence was breached, it took the entry team an additional thirty minutes
to determine no one was present, and we conclude that an objectively reasonable
officer, presented with the facts of this situation, could have thought it necessary to
tear through the ceiling to access the attic, to use additional diversionary devices in
the attic, and to make a hole in one wall to be sure that no persons or weapons were
present.

        With respect to any damage Cook complained of--e.g., the broken collectable
dolls, the damaged wicker chair, and the arrow lodged in the wall--even assuming in
Cook’s favor that this destruction occurred during the search, rather than during the
breach and entry sweep, we conclude that Cook failed to create a genuine issue as to
whether a reasonable officer would have known his conduct was unnecessarily
destructive, so as to violate the Fourth Amendment. First, there was unrefuted
evidence that the residence was a mess before the officers attempted entry, which
would have made it difficult for officers to conduct a thorough search without
upsetting or damaging property. Second, the amount of destruction was not so
excessive as to be inconsistent with an objectively reasonable officer’s execution of
the authorized search for the recording device, body wire, buy money, and drugs,
especially given the facts the officers knew about Cook. Third, dumping trash and
emptying closets and drawers are activities that are reasonably necessary to
conducting a thorough search for the items identified in the warrant. See DeArmon
v. Burgess, 388 F.3d 609, 610-11 (8th Cir. 2004) (affirming grant of qualified

                                          -11-
immunity to officers, sued under § 1983 for Fourth and Fourteenth Amendment
violations, who during the course of executing search warrant broke entry doors and
locks on interior doors, damaged drywall and furniture, and seized firearm, doorknobs
and locks, photographs, personal papers, and jewelry); Liston v. County of Riverside,
120 F.3d 965, 979 (9th Cir. 1997) (reversing, in part, grant of qualified immunity on
Fourth Amendment claim of unnecessary destructiveness, because record was unclear
whether some property damage occurred after officers learned they were in wrong
house; noting that if officers had engaged in complained-of conduct--ransacking
home, dumping garbage on floor, removing items from drawers and closets,
destroying backyard fence, and digging up backyard--before they knew they were in
wrong home, “the officers could have reasonably believed, under [existing]
precedents, that the way they conducted the search was lawful”); Tarpley v. Greene,
684 F.2d 1, 9 (D.C. Cir. 1982) (destruction of property is not, in and of itself, evidence
of unreasonableness or of Fourth Amendment violation, but destruction of property
that is not reasonably necessary to execute a search warrant effectively may violate
the Fourth Amendment); cf. San Jose Charter of Hells Angels Motorcycle Club v. City
of San Jose, 402 F.3d 962, 965-66, 974 (9th Cir. 2005) (affirming denial of qualified
immunity to officers who caused significant damage to “truckloads” of personal
property for purpose of establishing sentencing enhancement related to Hells Angels
symbols; examining totality of circumstances and holding it would be clear to
reasonable officer that his conduct was unlawful in situation he confronted because
it was not reasonably necessary to effectuate performance of officer’s duties).

       With regard to the dead animals, Cook submitted no evidence suggesting that
the officers did anything intentional to harm or kill any of the pets, at least one of
which may have died because it was left unattended on the porch in a cage for a week
in July. Cf. San Jose Charter, 402 F.3d at 977-78 (killing of dogs would violate
Fourth Amendment if officer knew of presence of dogs on property and failed to
consider method of subduing them besides killing them).

                                          -12-
      Finally, Cook’s constitutional claims arise under the Fourth rather than the
Fourteenth Amendment, see Albright v. Oliver, 510 U.S. 266, 273-74 (1994), and in
any event there is no Fourteenth Amendment violation for a deprivation of property
without due process if an adequate post-deprivation remedy is afforded by the state,
and Cook has made no showing of outrageous, conscience-shocking conduct, see
DeArmon, 388 F.3d at 611-12; Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998)
(en banc).

       Accordingly, we reverse and remand with instructions for the district court to
grant summary judgment to appellants based on qualified immunity.
                      ______________________________

                                        -13-


                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1

                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                               Submitted February 6, 2019
                                Decided February 6, 2019

                                         Before

                      DANIEL A. MANION, Circuit Judge

                      ILANA DIAMOND ROVNER, Circuit Judge

                      MICHAEL B. BRENNAN, Circuit Judge

No. 17-2904

UNITED STATES OF AMERICA,                         Appeal from the United States District
     Plaintiff-Appellee,                          Court for the Southern District of Illinois.

      v.                                          No. 3:15-CR-30075-SMY-2

TERRELL McGEE,                                    Staci M. Yandle,
     Defendant-Appellant.                         Judge.

                                       ORDER

        Terrell McGee wielded a gun and, with others, robbed a grocery store and a gas
station. His coconspirators shot bystanders during both robberies. The government
charged McGee with two counts each of conspiracy to commit robbery, 18 U.S.C.
§ 1951(a), robbery, id., and discharging a firearm during a crime of violence,
id. § 924(c)(1)(A)(iii), (C)(i). McGee pleaded guilty under the terms of a plea agreement.
The district court sentenced McGee to 300 months in prison, a term below the
Sentencing Guidelines range of 483 to 498 months. McGee filed a notice of appeal, but
his counsel tells us that the appeal is frivolous, and he moves to withdraw. See Anders v.
California, 386 U.S. 738 (1967). McGee has not responded to counsel’s motion. See CIR.
R. 51(b). Counsel’s brief explains the nature of the case and addresses the issues that an
appeal of this kind might be expected to involve. Because counsel’s analysis appears
No. 17-2904                                                                           Page 2

thorough, we limit our review to the topics he discusses. See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014).

        Counsel first considers whether McGee could challenge the adequacy of his plea
colloquy. Counsel should not have explored this option unless he first advised McGee
of the risks and benefits of bringing the challenge and confirmed with McGee that he
wants to withdraw his guilty plea. See United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Counsel does not
say whether he did.

        Still, we agree with counsel that it would be frivolous to argue that the court
failed to substantially comply with Federal Rule of Criminal Procedure 11(b) when
accepting McGee’s plea. See Konczak, 683 F.3d at 349. For example, the court ensured
that there was an adequate factual basis of the plea and that McGee understood the
charges against him, the trial rights he was forgoing, the terms of the plea deal, and the
possible punishment. True, after the court pronounced McGee’s sentence, McGee said
that he had expected a larger reduction in the Sentencing Guidelines range for
cooperating with the government and that he “fe[lt] like that should have been further
explained.” But McGee said at his plea hearing that he was satisfied with his counsel’s
representation and that he had had a “sufficient chance and opportunity” to review the
terms of the agreement with counsel.

        Relatedly, counsel discusses the court’s denial of McGee’s post-judgment motion
to withdraw his guilty plea. Counsel correctly concludes that it would be frivolous to
challenge that decision because a defendant may not withdraw a guilty plea in the
district court after the sentence is imposed. See FED. R. CRIM. P. 11(e).

        Counsel next contemplates challenging the procedural or substantive
reasonableness of McGee’s sentence, and he rightly declines to do so. In his plea
agreement, McGee waived his right to appeal his sentence unless it was longer than the
court-determined Guidelines range; his 300-month sentence is far shorter than the low
end of that range. Because no constitutional exceptions to the appeal waiver apply, we
would enforce it. See United States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016); United
States v. Adkins, 743 F.3d 176, 192–93 (7th Cir. 2014). Therefore, a challenge to McGee’s
sentence would be frivolous as well.

       Counsel raises two final matters. First, he discusses a letter that McGee sent to
the district court after he was sentenced, in which he stated that his constitutional rights
were being violated and that he was “being deprived of life and liberty without due
No. 17-2904                                                                       Page 3

process of law.” As counsel points out, McGee seems to be seeking collateral relief,
which the plea agreement bars with limited exceptions. Second, because the
agreement’s bar on collateral attacks does not apply to the challenge, counsel considers
arguing that McGee received ineffective assistance of counsel. But counsel
appropriately concludes that any claim of ineffective assistance of counsel would be
best saved for a collateral proceeding so that McGee may develop a more thorough
evidentiary record. Massaro v. United States, 538 U.S. 500, 508–09 (2003); Delatorre v.
United States, 847 F.3d 837, 844–45 (7th Cir. 2017).

      Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.


66 F.3d 319
U.S.v.Reynolds*
NO. 94-11020
United States Court of Appeals,Fifth Circuit.
July 26, 1995
Appeal From:  N.D.Tex. No. 3:91-CR-355-G

1
AFFIRMED.

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


245 U.S. 102 (1917)
EICHEL ET AL.
v.
UNITED STATES FIDELITY & GUARANTY COMPANY.
No. 571.
Supreme Court of United States.
Motion to dismiss or affirm submitted October 8, 1917.
Decided November 5, 1917.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
*103 Mr. William E. Schoyer and Mr. B.M. Ambler for appellee, in support of the motion.
Mr. Wm. M. Hall for appellants, in opposition to the motion.
Memorandum opinion by MR. JUSTICE VAN DEVANTER, by direction of the court.
A motion to dismiss or affirm is presented.
In its simplest form the case is this: Laura Eichel as use plaintiff began eighteen separate actions at law against the guaranty company in the District Court for the Western District of Pennsylvania, all being cognizable in that court because arising under a law of the United States. The guaranty company, conceiving that it had a partial equitable defense, not admissible at law, which was common to all the cases, and other partial defenses in particular cases, exhibited in that court a bill describing the actions at law, setting forth the defenses, showing that nothing was in controversy beyond the defenses, and praying that the entire matter be examined and adjudicated in a single proceeding in equity and further proceedings at law enjoined. Although showing that the parties were citizens of different States, the bill was framed as a dependent and ancillary bill and the court was asked to entertain it as such in virtue of the jurisdiction already acquired. The court did entertain it and ultimately sustained the equitable defense, partly sustained some *104 of the others, ascertained the amount of the liability of the guaranty company upon the claims set forth in the actions at law, and ordered that this amount, with interest, be paid in satisfaction of those claims. The Circuit Court of Appeals made a small reduction in the amount of the company's liability, made provision for subrogating the company to the rights of Mrs. Eichel against a bankrupt's estate in process of administration, and affirmed the decree as so modified. 241 Fed. Rep. 357.
Plainly the bill was dependent and ancillary and the jurisdiction to entertain it was referable to that invoked and existing in the actions at law out of which it arose. Jones v. Andrews, 10 Wall. 327, 333; Dewey v. West Fairmont Gas Coal Co., 123 U.S. 329, 333; Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633; Krippendorf v. Hyde, 110 U.S. 276, 281; Johnson v. Christian, 125 U.S. 642, 645; Carey v. Houston & Texas Central Ry. Co., 161 U.S. 115; Cortes Co. v. Thannhauser, 9 Fed. Rep. 226; Hill v. Kuhlman, 87 Fed. Rep. 498. This being so, the decree of the Circuit Court of Appeals is open to review here. See Jud. Code, §§ 128, 241. The motion to dismiss the appeal is therefore denied.
The decree, as the record shows, turned upon questions of fact and of general law, unaffected by any ruling upon any federal question. The case is part of a prolonged litigation which is now brought to our attention for the fourth time. 225 U.S. 205; 239 U.S. 628; ibid. 629. It has engaged the attention of the courts of two circuits on several occasions, some of the decisions being reported and others not. 170 Fed. Rep. 689; 218 Fed. Rep. 987; 219 Fed. Rep. 803; 233 Fed. Rep. 991; 241 Fed. Rep. 357. Upon the questions of fact the courts in the two circuits, proceeding independently, have reached identical conclusions. The questions of law are few and well settled. After examining the record in the light of the opinions below and the assignments of error here we are convinced *105 that the rulings were right, so clearly so that the appeal seems to be without reasonable justification, and therefore to have been taken for delay. The motion to affirm is accordingly sustained.
Decree affirmed.