645 F.3d 844 (2011)
Jacqueline J. KEENE, Petitioner,
v.
CONSOLIDATION COAL COMPANY and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
No. 10-1948.
United States Court of Appeals, Seventh Circuit.
Argued April 6, 2011.
Decided May 19, 2011.
*846 Darrell Dunham, Attorney, Anthony Sebastian (argued), Darrell Dunham & Associates, Carbondale, IL, for Petitioner.
Sean G. Bajkowski, Attorney, Department of Labor, Black Lung and Longshore Legal Services Division, Jeffrey S. Goldberg (argued), Attorney, Department of Labor, Office of the Solicitor, Washington, DC, Cheryl L. Intravaia (argued), Attorney, Feirich, Mager, Green & Ryan, Carbondale, IL, for Respondents.
Before FLAUM, EVANS, and TINDER, Circuit Judges.
EVANS, Circuit Judge.
Several cases have been filed around the country concerning the constitutionality of the recently enacted Patient Protection and Affordable Care Act (PPACA), Pub.L. No. 111-148 (2010). Most of the litigation centers around the "individual mandate" found in § 1501, which requires individuals to purchase federally-approved health insurance or pay a monetary penalty.[1] This case involves the constitutionality of a less well-known (and arguably less controversial) section of the Act (§ 1556).
Jacqueline Keene, the wife of a deceased coal miner, argues that her claim for black lung benefits should be remanded to the administrative law judge (ALJ) because § 1556 entitles her to a presumption under the Black Lung Benefits Act (BLBA), 30 U.S.C. §§ 901 et seq., that was not available when the ALJ issued his decision denying benefits. The government agrees. Mr. Keene's former employer, Consolidation Coal Company (Consol), however, contends that, by virtue of its retroactive nature, § 1556 violates the due process and takings clauses of the U.S. Constitution.[2]
Mrs. Keene's appeal actually encompasses two benefits claims: hers (the "survivor's claim") and her late husband's (the "miner's claim"). Before the ALJ, the dispositive issue on the miner's claim was *847 whether Mr. Keene's total disability was due to pneumoconiosis (that is, black lung disease).[3] In addressing that claim, the ALJ considered the opinions of Drs. Perper, Pineda, Tuteur, Wiot, Oesterling, and Fino. Only the first two doctors offered testimony supportive of the claim. The ALJ discounted the opinion of Dr. Perper because he (1) diagnosed a "new" kind of pneumoconiosis, and (2) found that Mr. Keene did not suffer from congestive heart failure. Both of these findings were contradicted by other medical testimony. The ALJ discounted the opinion of Dr. Pineda, despite recognizing that he was Mr. Keene's treating physician, because Dr. Pineda's testimony was conflicting: he stated both that Mr. Keene's disability was due to pneumoconiosis and that Mr. Keene's level of disability would probably have been the same even if he had not worked in coal mines.
The dispositive issue on the survivor's claim was whether Mr. Keene's death was due to pneumoconiosis. Here, the ALJ considered the autopsy report, the death certificate, and the reports of Drs. Perper, Pineda, Oesterling, and Tuteur. Again, only the first two doctors' testimony supported the claim. Dr. Pineda opined that pneumoconiosis contributed to, but did not hasten, Mr. Keene's death. But the ALJ discounted this testimony because Dr. Pineda did not explain his reasoning. And Dr. Perper's opinion was again afforded little weight because he found that Mr. Keene did not suffer from cardiac disease. This finding even conflicted with that of Dr. Pineda, who concluded that, although pneumoconiosis contributed to Mr. Keene's death, his cardiac condition was a major factor as well. The ALJ therefore determined that Mrs. Keene had not met her burden of proof regarding either claim and denied benefits. The Benefits Review Board affirmed.
After the Board issued its decision, Congress passed the PPACA. Section 1556 of the PPACA amended the BLBA by resurrecting a rebuttable presumption (the "15-year presumption")[4] and making it applicable to claims filed after January 1, 2005, that were still pending on or after March 23, 2010. The 15-year presumption provides:
if a miner was employed for fifteen years or more in one or more underground coal mines ... and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis.... The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.
30 U.S.C. § 921(c)(4) (2010) (emphasis added). In remarks made two days after the passage of the PPACA, the late Senator Robert Byrd[5] stated that § 1556 would *848 "benefit all of the claimants who have recently filed a claim, and are awaiting or appealing a decision or order, or who are in the midst of trying to determine whether to seek a modification of a recent order" and would help "ensure that claimants get a fair shake as they try to gain access to these benefits that have been so hard won." 156 Cong. Rec. S2083-84 (daily ed. Mar. 25, 2010) (statement of Sen. Robert Byrd).
There is no dispute that the miner's claim does not qualify for the 15-year presumption, as it was filed in 2001. The survivor's claim, however, was brought on January 3, 2005.
We begin our analysis with a brief review of the ALJ's decision, which we will not overturn if it was rational, supported by substantial evidence, and consistent with governing law. See Old Ben Coal Co. v. Director, OWCP, 292 F.3d 533, 538 (7th Cir.2002). To be entitled to benefits under the BLBA, a miner must demonstrate that (1) he had pneumoconiosis, (2) the pneumoconiosis arose out of coal mine employment, (3) he was totally disabled, and (4) the total disability was due to pneumoconiosis. See 20 C.F.R. §§ 718.202-718.204. Mrs. Keene argues that the ALJ ignored evidence regarding the last element.
Here, the ALJ considered the doctors' reports and correctly noted that only the opinions of Drs. Perper and Pineda supported the claim. The ALJ then explained why he discounted those opinions: (1) Dr. Perper's findingsthat Mr. Keene suffered from a "new" kind of pneumoconiosis and did not have congestive heart failurewere contrary to other medical evidence; and (2) Dr. Pineda's findingsthat Mr. Keene's disability resulted from pneumoconiosis and that Mr. Keene's level of disability would probably have been the same even if he had not worked in coal mineswere inconsistent. There is no indication that the ALJ ignored evidence on this issue. Indeed, Mrs. Keene's argument is more appropriately characterized as a request to reweigh the evidence, which we cannot do. See Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 478 (7th Cir.2001).
The elements of the survivor's claim differ slightly from those of the miner's claim. To be entitled to benefits, a survivor must demonstrate that (1) the miner had pneumoconiosis, (2) the pneumoconiosis arose out of coal mine employment, and (3) the miner's death was due to pneumoconiosis. 20 C.F.R. § 718.205(a). Mrs. Keene argues that the ALJ ignored evidence regarding the last element.
Here, the ALJ considered the autopsy report, the death certificate, and the doctors' reports and correctly noted that only the opinions of Drs. Perper and Pineda supported the claim. The ALJ then explained why he discounted those opinions: (1) Dr. Pineda's findingthat pneumoconiosis contributed to, but did not hasten, Mr. Keene's deathwas conclusory; and (2) Dr. Perper's findingthat Mr. Keene did not suffer from cardiac diseasewas incredible given the rest of the medical evidence presented. Again, Mrs. Keene has not shown any reversible error and is essentially asking us to reweigh the evidence. Her challenge to the ALJ's determinations therefore must fail.
But that is not the end of the line for Mrs. Keene. To repeat, her primary argument on appeal is that the survivor's claim should be remanded to allow the ALJ to determine the applicability of the 15-year presumption, recently revived by § 1556 of the PPACA, which was not available to her the first time around. Because *849 Mrs. Keene's claim was filed within the applicable time period, the government agrees. Consol, however, argues that the claim should not be remanded because, by virtue of its retroactive nature, § 1556 is unconstitutional under the due process and takings clauses. This is a question of law, which we review de novo. See Roberts & Schaefer Co. v. Director, OWCP, 400 F.3d 992, 996 (7th Cir.2005).
Consol maintains that retroactive application of § 1556 deprives it of due process. Legislation "adjusting the burdens and benefits of economic life" is presumed to be constitutional; the party alleging a due process violation must establish that the legislature "has acted in an arbitrary and irrational way." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). This is true even where, as here, a question of retroactivity is involved. Central States, Southeast & Southwest Areas Pension Fund v. Midwest Motor Express, Inc., 181 F.3d 799, 806 (7th Cir. 1999). "So long as retroactive application of the change is rationally related to a legitimate legislative purpose, the constraints of due process have been honored." Kopec v. City of Elmhurst, 193 F.3d 894, 903 (7th Cir.1999).
Consol falls far short of meeting its burden. Notably, the Supreme Court has already rejected an argument that the BLBA as a whole violates due process because it imposes retroactive liability on coal mine operators. See Turner Elkhorn, 428 U.S. at 19-20, 96 S.Ct. 2882. There, the Court concluded that "the imposition of liability for the effects of disabilities bred in the past is justified as a rational measure to spread the costs of the employees' disabilities to those who have profited from the fruits of their laborthe operators and the coal consumers." Id. at 18, 96 S.Ct. 2882.
Consol largely ignores this precedent and contends instead that, because Congress did not discuss the retroactive nature of § 1556, the legislation is irrational. But two days after the passage of the PPACA, one of its senator sponsors emphasized that § 1556 would provide people who recently filed a claim with a "fair shake" at accessing benefits. See 156 Cong. Rec. S2083-84. Thus, the rational purpose for applying the 15-year presumption retroactively is to give miners and their survivors whose claims were recently filed a better shot at obtaining benefits.
Furthermore, Congress is not required to discuss an act's purpose to satisfy due process. It is enough that a rational basis exists. Davon, Inc. v. Shalala, 75 F.3d 1114, 1124 (7th Cir. 1996). Here, we have no trouble conceiving of such a basis. With § 1556, Congress decided to ease the path to recovery for claimants who could prove at least 15 years of coal mine employment and a totally disabling pulmonary impairment. Its imposition of retroactive liability for a limited period to individuals who recently filed claims is a rational balance between the parties' interests.
Perhaps recognizing that its initial showing was insufficient, Consol sets forth an expansive history of the 15-year presumption in its supplemental reply brief, citing 1980 and 1982 General Accounting Office (GAO) reports for the first time. Those reports generally found that black lung benefits were being awarded without adequate medical evidence of disability and suggested (among other things) amending the BLBA to eliminate presumptions based on years of coal mine employment. Consol argues that, because the GAO's findings led to Congress's decision to limit the 15-year presumption in 1981, it was *850 irrational to resurrect the presumption in 2010 absent evidence of its effectiveness.
Even if this argument had been timely and relevant (as Consol's counsel conceded at oral argument, the GAO reports did not parse out awards based solely on the 15-year presumption), it would not help Consol. Due process only requires Congress to have acted rationally, not necessarily intelligently. Just because some members of Congress once believed that the 15-year presumption was unwise or unnecessary doesn't mean that they can't change their minds. And it could very well be that, with the presumption, some undeserving claimants are awarded benefits. But the flip-side is also true: without the presumption, some deserving claimants are not awarded benefits. It is up to Congress to decide which is the lesser evil. In sum, Consol has not shown that § 1556 violates due process.
Consol also argues that § 1556 violates the takings clause. "[I]f regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). But, as with a due process challenge, a party characterizing governmental action as an unconstitutional taking "bears a substantial burden." Eastern Enterprises v. Apfel, 524 U.S. 498, 523, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998). Evaluating constitutionality under the takings clause involves an examination of the "justice and fairness" of the regulation. Id. Three factors have "particular significance" to this inquiry: (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action. Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224-25, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986).
Again, Consol falls far short of meeting its burden. Regarding the first factor, economic impact, Consol argues in a conclusory fashion that § 1556 will financially burden coal companies. The only specific financial information that Consol provides is a passing reference to the alleged $1.4 billion debt accumulated by the black lung disability trust fund in 1981 (that is, before Congress limited the 15-year presumption) and statistics from the 1980 and 1982 GAO reports (again, in its supplemental reply brief). But this data proves nothing about the economic impact of the legislation on Consol itself, which is necessary to establish a taking. See Central States, 181 F.3d at 808 (rejecting a takings clause challenge where the complainant failed to compare the loss at issue to something in order to assess its impact); cf. Eastern Enterprises, 524 U.S. at 529, 118 S.Ct. 2131 (sustaining a takings clause challenge where the complainant showed that its cumulative payments under the act at issue would be $50 to $100 million).
Regarding the second factor, interference with investment-backed expectations, Consol again makes only vague arguments, predicting that § 1556 will increase insurance premiums for coal companies, lower profits, and result in job loss. But, as both Mrs. Keene and the government point out, the black lung benefits program has long-since required an endorsement in insurance policies making carriersand self-insured operators like Consolliable for obligations from any amendments enacted while the policy is in force. See 20 C.F.R. § 726.203(a). And § 1556 only allows the 15-year presumption to reach back to claims filed after 2005 that were still pending in early 2010. Cf. Eastern Enterprises, 524 U.S. at 532, 118 S.Ct. 2131 (sustaining a takings clause challenge where the act's beneficiary allocation scheme reached back 30 to 50 years to impose liability *851 based on the complainant's activities between 1946 and 1965).
Finally, Consol argues that the third factor, character of the governmental action, cuts in its favor because Congress did not debate whether the 15-year presumption needed to be resurrected. But Consol cites no case law finding that this action (or rather, inaction) supports a takings violation. The nature of the governmental action here is economic legislation with a limited retroactive element. As the BLBA's retroactive provisions have already withstood a due process challenge, "it would be surprising indeed to discover now that ... Congress unconstitutionally had taken the assets of the employers there involved." Connolly, 475 U.S. at 223, 106 S.Ct. 1018; cf. Eastern Enterprises, 524 U.S. at 537, 118 S.Ct. 2131 (sustaining a takings clause challenge where the act "single[d] out certain employers to bear a burden that is substantial in amount, based on the employers' conduct far in the past, and unrelated to any commitment that the employers made or to any injury they caused").
In the end, Consol makes some strong arguments as to why the 15-year presumption should not have been revived. And it may be, as Consol contends, that Congress "slipped § 1556 into page 142 of the 906-page piece of legislation known as the PPACA." But, unfortunately for the company, those assertions do not amount to grounds for sustaining its constitutional challenges.
With respect to the miner's claim, the petition for review is DENIED, and the Board's decision is AFFIRMED. With respect to the survivor's claim, the petition for review is GRANTED, and the Board's decision is VACATED. The survivor's claim is REMANDED to the ALJ with instructions that the record be reopened to allow the parties to present evidence regarding the applicability of the 15-year presumption. No costs are assessed against either party.
NOTES
[1]  The score is currently three-to-two (that is, district court judgments) in favor of constitutionality. See Mead v. Holder, 766 F.Supp.2d 16, 2011 WL 611139 (D.D.C. Feb. 22, 2011) (finding mandate constitutional); Florida ex rel. Bondi v. U.S. Department of Health & Human Services, ___ F.Supp.2d ___, 2011 WL 285683 (N.D.Fla.Jan. 31, 2011) (finding mandate unconstitutional); Virginia ex rel. Cuccinelli v. Sebelius, 728 F.Supp.2d 768 (E.D.Va.2010) (same); Liberty University, Inc. v. Geithner, 753 F.Supp.2d 611 (W.D.Va.2010) (finding mandate constitutional); Thomas More Law Center v. Obama, 720 F.Supp.2d 882 (E.D.Mich.2010) (same).
[2]  Consol is on the hook for any benefits awarded to Mrs. Keene because it is the coal mine operator that most recently employed her husband for at least one year. See 20 C.F.R. §§ 725.494-725.495.
[3]  Pneumoconiosis is specifically defined as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 U.S.C. § 902(b); 20 C.F.R. § 718.201(a).
[4]  The 15-year presumption was originally added to the BLBA in 1972. See Pub.L. No. 92-303, § 4(c) (1972). In 1981, Congress limited its availability to claims filed before January 1, 1982. See Pub.L. No. 97-119, § 202(b)(1) (1981).
[5]  When he died in 2010, Senator Byrd of West Virginia (with 51 years of service) was the longest-serving Senator in the history of the United States Congress.


J-E02001-16

                             2016 PA Super 300

NANCY NICOLAOU AND NICHOLAS                  IN THE SUPERIOR COURT OF
NICOLAOU                                           PENNSYLVANIA

                         Appellant

                    v.

JAMES J. MARTIN, M.D., AND LOUISE A.
DILLONSYNDER, CRNP, JEFFREY D.
GOULD, M.D., ST. LUKE’S HOSPITAL, ST
LUKE’S HOSPITAL AND HEALTH
NETWORK, ST LUKE’S HOSPITAL UNION
STATION MEDICAL SURGICAL CLINIC
D/B/A ST. LUKE’S SOUTHSIDE MEDICAL
CENTER, ST. LUKE’S ORTHOPAEDIC
SURGICAL GROUP, AND NAZARETH
FAMILY PRACTICE

                         Appellee                 No. 1286 EDA 2014

              Appeal from the Order Entered February 24, 2014
               In the Court of Common Pleas of Lehigh County
                     Civil Division at No(s): 2012-C-0518

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
        BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
        and OTT, J.

DISSENTING OPINION BY LAZARUS, J.:           FILED DECEMBER 22, 2016

     I respectfully dissent.    In my view, the majority has improperly

assumed the role of the fact-finder in determining whether the Nicolaous

were reasonably diligent in determining that Appellees had caused Mrs.

Nicolaou injury by failing to diagnose and treat her with Lyme disease

between 2001 and 2008.

     As the majority correctly states,
J-E02001-16

      [t]he discovery rule applies to toll the statute of limitations in
      any case in which a party is reasonably unaware of his or her
      injury at the time his or her cause of action accrued. . . . Only
      where the facts are so clear that reasonable minds could not
      differ may a court determine as a matter of law at the summary
      judgment stage, the point at which a party should have been
      reasonably aware of his or her injury and its cause and thereby
      fix the commencement date of the limitations period.

Fine v. Checcio 870 A.2d 850, 859. The foregoing requires a determination

of whether “the plaintiff was able, through the exercise of reasonable

diligence, to know that he or she had been injured and by what cause. . . .

[This] is not an absolute standard.”   Gleason v. Borough of Moosic, 15

A.3d 479, 485 (Pa. 2011).

      Here, the trial court found that the negligence Mrs. Nicolaou

complained of occurred between 2001 and 2008; the discovery rule applied

for a period of time thereafter. The court did not make a precise ruling as to

the length of time the discovery rule applied, but found that “a reasonable

person would have had reason to suspect injuries might have been caused

by medical treatment rendered by [Appellees] . . . on or about July 20,

2009[.]”   Trial Court Opinion, 2/24/14, at 12.    Regardless of the specific

date the discovery rule ceased to apply, the court determined that the filing

of the complaint on February 10, 2012, was untimely because “the evidence

supports the conclusion that the commencement of the statute of limitations

period began prior to February 10, 2010[.]” Id. at 9.

      In coming to its conclusion that the statute of limitations period began

to run prior to February 10, 2010, the trial court found that reasonable

                                    -2-
J-E02001-16

minds could not differ that with reasonable diligence, the Nicolaous would

have determined prior to that date that Mrs. Nicolaou had been injured by

not being diagnosed and properly treated for Lyme disease. Accordingly, the

crux of this appeal is whether the Nicolaous were not “reasonably diligent”

as a matter of law. Gleason, supra at 486 (citing Cochran v. GAF Corp.,

666 A.2d 245, 248 (Pa. 1995)). In reviewing the court’s decision, we must

consider the facts in the light most favorable to the Nicolaous as the non-

moving party. Fine, supra at 857.

      Instantly, it is not disputed that Mrs. Nicolaou suspected she had Lyme

disease in July 2009, when she began treatment with Nurse Practitioner Rita

Rhoads. Nurse Rhoads acknowledged that Mrs. Nicolaou turned down a fifth

Lyme disease test at the beginning of treatment, at least in part because she

was not in a position to pay for the test.     See Deposition of Rita Rhoads,

11/1/13, at 29 (Mrs. Nicolaou “did not have the money for [the test] at that

point” and she “just didn’t have the money for anything.”) In my opinion,

hardship regarding paying for a fifth test when first suggested, along with

four previous negative tests and Mrs. Nicolaou’s stated intention to

determine whether the antibiotics Nurse Rhoads had prescribed would work,

combine to create a jury question as to whether the Nicolaous were

reasonably diligent in determining the suspected injury actually had been

suffered.

      I emphasize that although “reasonable diligence is an objective test,

[i]t is sufficiently flexible . . . to take into account the difference[s] between

                                      -3-
J-E02001-16

persons and their capacity to meet certain situations and the circumstances

confronting them at the time in question.”       Id. at 870 (citation and

quotation marks omitted).   Accordingly, viewing the foregoing facts in the

light most favorable to the Nicolaous, I would reverse and remand the

matter to the trial court to permit the fact-finder to determine whether the

statute of limitations should have remained tolled until February 13, 2010,

the date Mrs. Nicolaou received positive Lyme disease results, thereby

making the Nicolaous’ complaint timely.

     President Judge Gantman and Judge Bowes join in this Dissenting

Opinion.

                                   -4-


                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                         FILED
                                                                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                        No. 04-16547                     November 3, 2005
                                                                      THOMAS K. KAHN
                                                                             CLERK
                      D. C. Docket No. 04-00017-CR-001-WLS-1

UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

JOHN LEE BAILEY,

                                                                      Defendant-Appellant.

                      Appeal from the United States District Court
                          for the Middle District of Georgia

                                    (November 3, 2005)

Before TJOFLAT and KRAVITCH, Circuit Judges, and JORDAN*, District Judge.

*Honorable Adalberto Jordan, United States District Judge for the Southern District of Florida,
sitting by designation.
PER CURIAM:

       AFFIRMED. See 11th Cir. R. 36-1.1

   1
     11th Cir. R. 36-1 provides:
        When the court determines that any of the following circumstances exist:
               (a) judgment of the district court is based on findings of fact that are not clearly
erroneous;
               (b) the evidence in support of a jury verdict is sufficient;
               (c) the order of an administrative agency is supported by substantial evidence on the
                    record as a whole;
               (d) summary judgment, directed verdict, or judgment on the pleadings is supported
by the record;
               (e) judgment has been entered without a reversible error of law; and an opinion
                    would have no precedential value, the judgment or order may be affirmed or
                    enforced without opinion.

                                                 2


Error: Couldn't open file '/var/www/court-listener/alert/assets/media/pdf/2009/02/09/Nakshin_v._DOJ.pdf': No such file or directory.


451 N.W.2d 846 (1989)
MARIAN HEALTH CENTER, Plaintiff-Appellee,
v.
Willie F. COOKS, Defendant-Appellant.
No. 89-399.
Court of Appeals of Iowa.
December 21, 1989.
Frank Cal Tenuta of Legal Services Corp. of Iowa, Northwest Regional Office, Sioux City, for defendant-appellant.
Patrick C. McCormick, Sioux City, for plaintiff-appellee.
Heard by SCHLEGEL, P.J., and HAYDEN and SACKETT, JJ.
SCHLEGEL, Presiding Justice.
Appellant, Willie Cooks, seeks discretionary review of the district court's affirmance of a magistrate court ruling that the wages he earned as a shoe shiner in a Sioux City bank were not protected from garnishment. We reverse.
Cooks' sole question on review is whether the state and federal garnishment exemption statutes discriminate between an independent contractor and an employee for purposes of determining whether the wages he earned from the bank were exempt from garnishment under Iowa Code section 642.21(1) (1987) and 15 U.S.C. sections 1671 through 1677. Cooks argues that the money he earned at the bank was for personal services performed for the bank and are exempt. Cooks further argues that the legislative intent behind the enactment of the state and federal garnishment exemption statutes is to prevent the loss of employment and income caused by burdensome garnishment. Cooks also contends that the exemption statutes do not discriminate between an employee and independent contractor when the wages earned were for personal services rendered. Lastly, Cooks argues that the district court's interpretation of the case law of other jurisdictions is misplaced.
In August 1986, the district court entered judgment against Willie Cooks in favor of Marian Health Center. On July 28, 1988, plaintiff served a notice of garnishment on the Security National Bank in Sioux City requesting a withholding of Cooks' earnings. Cooks had entered into a verbal agreement with Security National Bank (Bank) to shine shoes. The Bank was to pay Cooks $25 per week for shining shoes between the hours of 11:00 a.m. and 1:00 p.m. on Mondays. Cooks provided his *847 own shoe shine kit, while the Bank provided him an appropriate chair and stand. Cooks shined customers' shoes at no cost. The Bank did not withhold taxes from the $25 paid to Cooks, and the Bank paid Cooks with what the Bank termed an expense check. On other days Cooks worked at other locations.
The Bank failed to surrender the funds it owed Cooks pursuant to the notice of garnishment. Plaintiff subsequently filed an "Application for Order of Appearance" against the Bank, requesting the court to order the Bank to bring books and records relating to the employment and payment of Cooks' wages and to answer interrogatories. Following the hearing, the court entered judgment against the Bank for $125. Cooks then challenged this judgment by filing a request for an additional hearing on the garnishment action, alleging that his earnings at the Bank were exempt under Iowa Code section 642.21 (1987) and 15 U.S.C. sections 1671 through 1677.
On October 4, 1988, the magistrate ruled that Cooks was an independent contractor and therefore his earnings were not exempt.
Cooks appealed to the district court, which affirmed the magistrate ruling that Cooks' wages were not exempt under either Iowa Code section 642.21(1) (1987) or 15 U.S.C. section 1673(a)(1). On April 17, 1989, Senior Judge Reynoldson granted Cooks' application for discretionary review.
The standard of review of a discretionary review appeal of a small claims action depends on the nature of the case. If the action is a law case, as in the present action, we review the judgment of the district court on error. Koethe v. Johnson, 328 N.W.2d 293, 296 (Iowa 1982). Consequently, the district court judge's findings of facts have the force of a jury verdict and are binding if supported by substantial evidence. Id.
Appellant's main contention involves the interpretation of Iowa Code section 642.21 and 15 U.S.C. sections 1671-77. The relevant portion of Iowa Code section 642.21 states as follows:
The disposable earnings of an individual are exempt from garnishment to the extent provided by the Federal Consumers Credit Protection Act, Title III, 15 U.S.C. sections 1671-1677 (1982)....
For the purposes of this section:
a. The term "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonuses or otherwise....
b. The term "disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of any amounts required by law to be withheld.
The Federal Consumer Credit Protection Act provides in pertinent part:
The maximum part of the aggregate disposable earnings of an individual for any work week which is subject to garnishment may not exceed,
(1) 25 per centum of his disposable earnings for that week,
or
(2) the amount by which his disposable earnings for that week exceed thirty times the federal minimum hourly wage....
The district court determined that the appellant was an independent contractor and therefore not entitled to the exemption in the garnishment statute. There is very little Iowa case law on when the exemption applies. Therefore, we must rely on our interpretation of the statute and the intent of the legislature.
In the interpretation of Iowa Code section 642.21, our ultimate goal is to ascertain and give effect to the intention of our legislature. Kohrt v. Yetter, 344 N.W.2d 245, 246 (Iowa 1984). We are to presume that the entire statute is intended to be effective and that a reasonable result is intended. Id. We consider all portions of the statute together, without attributing undue importance to any single or isolated portion. Id.
It seems clear that the legislature was more concerned with separating types of *848 income rather than distinguishing standard employees from independent contractors. The phrase "personal services" as used by the legislature means wages for work done by the person. This was intended to distinguish it from income from certificates of deposit or other investments. The intent of the legislature could not have been to distinguish employees from independent contractors. One of the express purposes of the statute is to prevent bankruptcies and the predatory extension of credit. Garnishing an independent contractor's income to exhaustion will result in bankruptcy as surely as it will with an employee.
The wording of the statute suggests the legislature was primarily concerned with the prevention of bankruptcies. However, the legislature also recognized that certain types of income may not need protection from garnishment as they are usually a secondary income. While income from the personal services of a person is usually what puts bread on the table. This is exactly the situation where the exemption is required in order to prevent a possible bankruptcy or the predatory extension of credit. It is not reasonable to assume the Iowa legislature intended to protect employees and to let independent contractors starve or go into bankruptcy. The income of the appellant is protected by the Iowa exemption law.
REVERSED.


                                   NOT FOR PUBLICATION
                                    File Name: 05a0405n.06
                                      Filed: May 17, 2005

                                           NO. 04-5739

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,                                    ON APPEAL FROM THE
                                                              UNITED STATES DISTRICT
v.                                                            COURT FOR THE WESTERN
                                                              DISTRICT OF TENNESSEE
TOMMIE CONNER,

      Defendant-Appellant.
________________________________/

BEFORE: SUHRHEINRICH and GILMAN, Circuit Judges; and ACKERMAN, District
Judge*

       Defendant Tommie Conner (“Conner”) appeals his conviction and sentence for being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g). For the reasons set forth below, this

Court AFFIRMS as to the sufficiency of the evidence, VACATES Conner’s sentence, and

REMANDS for resentencing.

                                                 I.

       On August 28, 2002, a grand jury returned a four-count indictment against Conner. Counts

1 and 2, possession of a .45 caliber gun and possession of .45 ACP caliber ammunition, arose on

March 15, 2002, when the police stopped a 1985 Pontiac Firebird operated by Conner. The

vehicle’s tags were falling off, and police discovered that the tags were registered to a 1987

       *
         The Honorable Harold A. Ackerman, United States District Judge for the District of New
Jersey, sitting by designation.
Oldsmobile Delta 88. Following a police pat down, Conner fled on foot, but was soon apprehended.

While searching the Firebird, police found a loaded Llama .45 caliber pistol and 8 additional live

.45 caliber rounds underneath the driver’s seat. Conner stated that he bought the gun years ago off

the street. Counts 3 and 4, possession of a Kahr 9MM caliber pistol and possession of 9MM

ammunition, arose from a shooting at a night club, the facts of which are outlined below. Conner

pleaded not guilty to the indictment, and this Court granted his motion to sever Counts 1 and 2 from

Counts 3 and 4 for trial.1 At trial on Counts 3 and 4, five witnesses testified–two eyewitnesses and

three police officers. The government’s lead witness, Shontell Horton, testified that on the night of

April 5, 2002, she attended the Denim and Diamond night club in Memphis. As the club was

closing, someone fired shots outside the club and she asked Ken Bush, a neighbor and former

boyfriend, to give her a ride home. Ken was with two other males whom Shontell identified at trial

as Conner and Clifton Butler. Shontell testified that she did not know Conner and Butler but had

“seen their faces before.” She further testified that she was sitting in the front passenger seat,

Conner was sitting in the back behind her, Ken was driving, and Butler was sitting behind the driver.

       Shontell testified that when police pulled the car over, Ken said, “Whatever you got, pass

it to me.” She also testified, “[a]nd that’s when Tommie passed him the gun. And Ken took the clip,

took the clip out of the gun and put the clip on the side, on the armrest.” She further testified that

Butler did not have a gun and did not respond to Ken’s statement.

       The prosecution asked Shontell if she had previously testified under oath as to who passed

the firearm forward to Ken. Shontell answered that, in reviewing her prior testimony under oath,

       1
        Counts 3 and 4 were renumbered Counts 1 and 2 for trial purposes; however, in this opinion,
they continue to be referred to as Counts 3 and 4.

                                                  2
“[i]t was something in there that - - well, they didn’t get it straight or whatever. On here, they said

that I said that he was sitting diagonal of me in the back seat, but he was sitting behind me in the

car.” However, she testified there was no doubt in her mind that it was Conner who passed the gun

forward. She further stated that Conner’s build was stocky and shorter, while Butler was tall and

slim.

        The government also called Butler as a witness. Butler testified that when he got to Ken’s

car, Ken was in the driver’s seat and there was a female in the front. He further testified that he

himself was in the back behind the female and that Conner was with him in back. Butler was asked

on direct whether he remembered stating on the night of the incident, “I saw Tommie pass it [the

gun] to Ken. Tommie is the dude that was in the back with me.” He answered that he did not

remember making that statement, but that his statement on the night of the incident was a better

recollection of his memory than his trial testimony.

        Conner called Kenya Bush as a witness, but he pled the Fifth Amendment.

        On November 6, 2003, the jury found Defendant guilty on Counts 3 and 4 of the indictment.

On January 15, 2004, Defendant pled guilty to Counts 1 and 2 of the indictment. The plea

agreement established that all counts would be sentenced concurrently; consequently, Counts 1

through 4 were grouped for sentencing. The United States District Court for the Western District

of Tennessee imposed a 235-month prison sentence followed by 3 years of supervised release, and

a $400 special assessment fee. Defendant appealed.

                                                  II.

        Defendant argues on appeal that the evidence was not sufficient to prove his guilt beyond

a reasonable doubt as to Counts 3 and 4 of the indictment; that the district court committed error in

                                                  3
sentencing him for multiple offenses of Title 18 U.S.C. § 922(g);2 and that his sentencing raises a

Booker issue.

                                                  A.

       Conner claims that the government failed to prove he knowingly possessed the firearm at

issue.3 When deciding whether there is sufficient evidence to support the jury’s verdict of guilty,

this Court views the evidence in the light most favorable to the government and determines whether

“any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991) (citing Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in original)). “We will reverse a judgement for sufficiency of

evidence only if, viewing the record as a whole, the judgment is not supported by substantial and

competent evidence.” Id. (citing United States v. Ellzey, 874 F.2d 324, 328 (6th Cir. 1989).

       We are not pursuaded by Conner’s argument that the government failed to prove the

possession element of § 922(g). The government provided two eyewitnesses who claim to have seen

Conner with the gun and ammunition.              Although their testimony may have contained

inconsistencies, these bear on witness credibility and are not significant enough to prevent a rational

trier of fact from finding that the government had proven the element of possession beyond a

       2
          Section 922(g) provides in relevant part that “[i]t shall be unlawful for any person–(1) who
has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one
year . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .” 18 U.S.C. §
922(g).
       3
         To sustain a conviction under 18 U.S.C. § 922(g), the government must prove beyond a
reasonable doubt that prior to the date of the offense 1) the defendant was convicted of a crime
punishable by a term of imprisonment exceeding one year; 2) that the defendant knowingly
possessed a firearm or ammunition; and, 3) that the firearm or ammunition had previously traveled
in interstate commerce. United States v. Daniel, 134 F.3d 1259, 1263 (6th Cir. 1998).

                                                  4
reasonable doubt. See United States v. Farley, 2 F.3d 645, 652 (6th Cir. 1993) (stating that

“[c]hallenges to the credibility of a witness are not challenges to the sufficiency of the evidence but,

rather, are challenges to the quality of the government’s evidence”).

       Horton testified that the driver said, “[w]hatever you got, pass it to me.” She also testified

that she was sure it was Conner who passed the gun forward, and supported this by stating that she

was familiar with both Conner’s and Butler’s faces and could distinguish their body builds.

Although there was a question as to the seating arrangement of Butler and Conner in the back seat,

Shontell explained this inconsistency by testifying, “[w]ell, they didn’t get it straight or whatever.”

Therefore, it was within the province of the jury to decide whether Shontell changed her testimony

or whether the police recorded it incorrectly on the night of the incident. Moreover, the key fact was

not the seating arrangement but Horton’s clear identification of Conner as the man who passed the

gun forward. The jury obviously credited her testimony that Conner was in possession of the

firearm.

       Butler gave a statement on the night of the incident indicating that the gun was not his, but

that he saw Conner with the gun in the car. Although he testified at trial that he could not recall

whether Conner passed the weapon, he also admitted that his memory on the night in question was

better than his memory during trial. Whether Butler actually saw Conner in possession of the

firearm is a question of witness credibility and not one of sufficiency of the evidence. In any event,

even without Butler’s statement, Shontell’s testimony provided substantial and competent evidence

such that a rational jury could find beyond a reasonable doubt that Conner knowingly possessed the

firearm in question.

                                                   5
                                                  B.

       Conner next argues, for the first time on appeal, that the district court erred in sentencing him

for multiple offenses of 18 U.S.C. §922(g). He claims that his convictions for felon in possession

of a firearm, Count 3, and felon in possession of ammunition, Count 4, should be merged. He makes

the same argument with regard to Counts 1 and 2 of the indictment.

        At oral arguments on April 19, 2005, the government conceded that the indictment was

multiplicitous. Therefore, on remand, the district court should vacate Counts 2 and 4, and sentence

Conner based on Counts 1 and 3. See United States v. Adams, 214 F.3d 724, 729 ( holding that the

ammunition count of the indictment should not have been charged separately from the firearm count

since there was no evidence that the ammunition clip was stored or acquired separately from the

gun). The government already conceded that the district court incorrectly imposed a $100

assessment fee for each count and requested this Court strike $200 of the district court’s $400

special assessment fee.

                                                  C.

       Conner next argues that he was prejudiced by having been sentenced under a pre-Booker

regime because he was sentenced at the bottom of the applicable Guidelines range. United States

v. Booker, ___U.S___, 125 S. Ct. 738, 765 (2005), holds that the Sentencing Guidelines are now

advisory rather than mandatory. Because Conner did not raise this issue below, it is now settled in

this Circuit that plain error is the applicable standard of review. See United States v. Barnett, 398

F.3d 516, 525 (6th Cir. Feb. 16, 2005). We therefore consider whether there was plain error, that

affects substantial rights, and that seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id. (citing Johnson v. United States, 520 U.S. 461, 466 (1997).

                                                  6
       This Court has recently ruled that it is plain error for a defendant “to be sentenced under a

mandatory Guidelines regime that has now become advisory.” Id. at 526. We also now presume

prejudice as to pre-Booker sentences absent explicit record evidence to rebut that presumption. Id.

at 526-29; United States v. Trammel,___.3d___, 2005 WL 783361, at *3-4 (6th Cir. 2005).

Moreover, it would be fundamentally unfair to allow Conner’s sentence to stand since it is possible

that the district court would have imposed a lower sentence if the guidelines had been advisory,

rather than mandatory. See Barnett, 398 F.3d at 530. Conner’s total offense level of 33, coupled

with his Criminal History Category of VI, put him in the Guidelines range of 235 to 293 months.

The court sentenced Conner to 235 months, the bottom of the Guidelines range. See id. (holding that

the district court’s sentencing in the middle of the Guideline’s range was insufficient to rebut

presumption of prejudice). Therefore, in light of Booker and Barnett, we must remand this case for

resentencing.

                                               IV.

       For the reasons set forth above, we AFFIRM the district court’s decision as to the

sufficiency of evidence, VACATE Conner’s sentence, and REMAND for sentencing in accordance

with this opinion.

                                                7


750 So.2d 715 (2000)
Arthur Leslie CLEMENTS and Victoria Clements, Appellants,
v.
WILDLIFE CONSERVATION SOCIETY, etc., Appellee.
No. 5D98-3413.
District Court of Appeal of Florida, Fifth District.
January 21, 2000.
Rehearing Denied February 15, 2000.
*716 Robert J. Link, of Pajcic & Pajcic, P.A., Jacksonville, for Appellants.
Samuel H. Lanier of Coker, Myers, Schickel, Sorenson, Higginbotham & Green, P.A., Jacksonville, for Appellee.
PETERSON, J.
Arthur Clements and his wife, Victoria, appeal a final summary judgment in favor of the Wildlife Conservation Society, f/k/a the New York Zoological Society ("the Society")[1]. The Clements contend that the trial court erred in dismissing their claims against the Society and ruling that the Society was entitled to workers' compensation immunity.
Arthur Clements, an employee of the St. Augustine Alligator Farm (Alligator Farm), was cleaning drains with a pool skimmer in the pool area of a four foot high enclosure that housed Cuban crocodiles when he was attacked by one of the crocodiles. The seven-foot crocodile had jumped and seized Clements' left arm in its jaws. Clements' arm later had to be amputated.
Although the Alligator Farm's workers' compensation policy provided benefits for the injury, the Clements sued the Society alleging that it was liable for the injuries as the owner of the crocodile. In addition to asserting that the Society was strictly liable for the injuries, the Clements argued alternatively that the Society should be liable in negligence for failing to warn of the unusually dangerous and aggressive characteristics of Cuban crocodiles and in failing to warn attendants of appropriate safety measures.
The Society denied that it was the owner and alternatively defended by alleging that even if the crocodile was owned by them and had been loaned to the Alligator Farm, the claim was barred by workers' compensation immunity and the leased dangerous instrumentality doctrine. Relying on Halifax Paving, Inc. v. Scott & Jobalia Const., Inc., 565 So.2d 1346 (Fla. 1990), the Society successfully moved for summary judgment. We affirm.
Under Section 440.11, Florida Statutes (1995), an owner of a dangerous instrumentality enjoys the same limited liability or immunity from a tort action as the employer of an employee injured by the instrumentality where it is leased to, and under the control of, the employer. In Halifax, an employee of Scott & Jobalia ("S & J"), was injured when a pipe fell from a sling attached to a crane that had been borrowed from Halifax. The employee collected workers' compensation benefits from S & J and then sued Halifax as the owner of the crane. Halifax settled with S & J's employee and sought indemnity from S & J. The supreme court found that the workers' compensation benefits were the exclusive remedy of the injured employee because the leased or borrowed equipment was in the exclusive control of the employer and the owner of the equipment did not in any logical sense contribute to the injury. The injury "was a workplace injury occurring as a result of a dangerous instrumentality in the control of the employer."
*717 The borrowed crocodile, similarly, became a "working tool" of the Alligator Farm when the Society transferred possession to the Farm. The crocodile became a part of the operation of the Alligator Farm which was to breed and exhibit reptiles. All of the environment surrounding the tragedy was controlled solely by the Alligator Farm, to wit: the crocodile, the workplace and the injured employee. The crocodile is no less a dangerous instrumentality in the control of the employer than the crane used in Halifax:
A dangerous instrumentality is anything that unless carefully guarded and carefully used is dangerous to others... including the use of explosives, vicious animals, or automobiles operating on roadways.
Emphasis added. Ricke and Sons, Inc. v. Green, 609 So.2d 504, 509 (Fla.1992); see also, Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353, 364 (1940) (vicious animals are dangerous instrumentalities per se). We affirm the summary judgment and agree that the Society also enjoyed the benefits of the Alligator Farm's workers' compensation immunity.
AFFIRMED.
ANTOON, C.J., and COBB, J., concur.
NOTES
[1]  The Society owns and operates the Bronx Zoo.


             Case: 19-11852    Date Filed: 05/06/2020    Page: 1 of 17

                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-11852
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:15-cv-01665-RWS

MEUNIER CARLIN & CURFMAN, LLC,
f.k.a. McKeon Meunier Carlin & Curfman LLC,

                                                Plaintiff-Appellee-Cross Appellant,

                                      versus

SCIDERA, INC.,

                                               Defendant-Appellant-Cross Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                  (May 6, 2020)

Before BRANCH, GRANT, and FAY, Circuit Judges.

PER CURIAM:

      The law firm Meunier Carlin & Curfman had a friendly working relationship

with Scidera, Inc. for several years. Meunier represented the company in patent
               Case: 19-11852     Date Filed: 05/06/2020   Page: 2 of 17

proceedings and two federal lawsuits, but the relationship soured when Scidera fell

behind on its bills. Scidera also left Meunier to cover the cost of a third party who

had helped the company with document production. Meunier sued to recover its

loss.

        Early in this lawsuit, Meunier disclosed that an insurance company had

covered some of its loss by paying for the third party’s production work. But both

Scidera and Meunier, as well as the court below, were at first confused about

whether the jury could hear evidence of the insurance payment. Because of this

confusion, at some points in this litigation, Meunier falsely said that it had paid for

all costs related to the third party’s work.

        Between partial summary judgment and a favorable jury verdict, Meunier

won almost everything it asked for. But the district court sanctioned the law firm

for its false representations. Although the court recognized the parties’ confusion,

it decided that something had to be done; it chose to deny Meunier attorney’s fees

that it otherwise would have been permitted to collect.

        The parties now cross-appeal. Scidera contests personal jurisdiction, the

court’s award of partial summary judgment, the court’s award of prejudgment

interest, and a couple evidentiary issues. The law firm also appeals, arguing that

the district court’s sanction was error. We agree with the district court on

everything except the sanction. The sanction here would require a finding of bad

                                               2
              Case: 19-11852     Date Filed: 05/06/2020    Page: 3 of 17

faith—a finding that the court did not make and that the record does not support.

We therefore affirm in part and reverse in part.

                                           I.

                                          A.

      Scidera is a genomics company that specializes in analysis of animal DNA.

In 2011, it retained Meunier, a Georgia-based firm, to manage the company’s

patent portfolio. The organizations exchanged drafts of an engagement agreement.

The last draft proposed hourly rates for attorneys expected to work on Scidera’s

matters, and it provided that the firm would be reimbursed for costs stemming

from the representation. Under the terms proposed in the letter, Meunier could

charge for travel time if it was actively working on another Scidera matter. The

letter also required Meunier to have an approved budget for new matters that

would cost more than $5,000. Although the letter was never signed, Meunier

began working for Scidera, and Scidera began paying the invoices sent by the firm.

      Later the same year, a company called Mars threatened to sue Scidera over

alleged patent infringement for dog test kits. Scidera again turned to Meunier for

legal help. The firm recommended that Scidera preemptively file suit in the

favorable forum of California. To that end, the firm proposed a budget outlining

the tasks it thought the case would call for, as well as estimates for the cost of each

job. Unfortunately for Scidera, Mars beat them to the punch and filed in the

                                           3
                Case: 19-11852    Date Filed: 05/06/2020    Page: 4 of 17

Eastern District of Virginia. Scidera still had Meunier file in California, but that

case was transferred to the Eastern District of Virginia.

         The Mars litigation was costly. A portion of that cost came from Meunier’s

hiring the third party to help with the quick document production. Some of the

cost came from unforeseen work in the case; for example, Meunier contested a

motion by Mars to add Scidera’s CEO as a party. At one point, Scidera expressed

concern over the increasing cost of the suit, prompting Meunier to explain some of

the case’s unforeseen circumstances. The Mars litigation ended with a settlement.

The entire cost—for the California suit and the Virginia one—was under budget.

         Scidera remained Meunier’s client and kept making payments until 2015.

The law firm ended the relationship after Scidera, who had fallen behind on its

payments, racked up bills of more than $870,000. Scidera also left Meunier to deal

with the cost of the third party’s help with production during the Mars litigation,

although Meunier’s insurance ended up covering most of that expense.

                                          B.

         Meunier sued Scidera for breach of contract (among other things) and sought

payment for both its billed work and costs stemming from the third party’s

production work, as well as prejudgment interest for both. The complaint also

sought attorney’s fees for this suit based on Scidera’s bad faith in failing to pay its

bills.

                                           4
              Case: 19-11852      Date Filed: 05/06/2020    Page: 5 of 17

      Meunier moved for summary judgment, and the district court granted its

request in part. The court found that, as a matter of law, Scidera had breached its

contract with Meunier and owed more than $850,000. At the same time, the court

held that there was a question of fact about time billed for travel, and given this

uncertainty, the court also denied summary judgment on Meunier’s claim to

prejudgment interest.

      The remaining issues went to trial. On the witness stand, one of the law

firm’s attorneys, Stephen Schaetzel, told the jury that Meunier had paid all costs

from the third party’s work. The firm made similar claims in filings to the court—

even though, in early disclosures, the law firm noted that its insurance had covered

much of these costs. As Meunier understood it, the collateral source rule (a rule

that applies in tort cases) meant that it did not have to tell the jury about what its

insurer had paid to cover the production expenses. For its part, Scidera waited

until trial to contest Meunier’s approach; even then, it could cite no authority to

support its position. The court initially agreed with Meunier about the collateral

source rule, but after researching the issue, the court decided that Meunier was in

the wrong. In response, Meunier dropped its claim for damages related to the third

party’s work, and Schaetzel admitted to the jury that he had misstated the facts.

      The jury found that Scidera had breach the contract by failing to pay for time

billed during travel, that the company owed prejudgment interest on that amount,

                                            5
              Case: 19-11852     Date Filed: 05/06/2020    Page: 6 of 17

and that Scidera had acted in bad faith. Although the finding of bad faith can serve

as the basis for an award of attorney’s fees, the district court denied Meunier its

fees to sanction the party for its false statements. See O.C.G.A. § 13-6-11. The

court then awarded the firm prejudgment interest. Both parties now appeal.

                                          II.

      We first consider the issues raised by Scidera on appeal. As mentioned at

the outset, the company challenges personal jurisdiction, the award of partial

summary judgment, the award of prejudgment interest, and a couple evidentiary

rulings. We find none of its arguments to be persuasive.

                                          A.

      Scidera asserts—without any legal citation—that the district court in

Georgia lacked personal jurisdiction. Reviewing this legal issue de novo, we

readily find jurisdiction. Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc.,

593 F.3d 1249, 1257 (11th Cir. 2010). In fact, Scidera itself concedes more than

enough facts to establish personal jurisdiction: (1) it knew Meunier was a Georgia

law firm; (2) a Scidera representative visited the firm’s Atlanta office; and (3) for

about four years, Scidera had the firm represent its interests in a “vast array of

patent and other legal matters”—including in the Mars litigation, when the firm

accrued unpaid fees. That some of the work was completed by an attorney who

                                           6
              Case: 19-11852     Date Filed: 05/06/2020    Page: 7 of 17

was not a Georgia resident does not matter. Scidera transacted extensive business

with Meunier in Georgia, so it can be sued there. See id. at 1266–67.

                                          B.

      Scidera also says the court erred when it partially granted Meunier’s

summary judgment motion. Basing its decision partly on Meunier’s invoices and

other accounting records, the court found that the parties had a contract and that

there was no dispute as to the amount of damages caused by Scidera’s breach. As

Scidera sees it, both the use of the law firm’s records and the decision to grant

summary judgment were flawed. We review the evidentiary issue for abuse of

discretion, and we review de novo the grant of summary judgment. Lamonica v.

Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1317 (11th Cir. 2013); Alvarez v.

Royal Atl. Developers, Inc., 610 F.3d 1253, 1263 (11th Cir. 2010).

                                          1.

      The district court considered Meunier’s invoices and related records under

the business records exception to the hearsay rule. See Fed. R. Evid. 803(6).

Although Scidera’s opening brief complains that the records do “not seem

accurate,” the company did not bother to introduce any facts or affidavits

challenging the records in the district court. Scidera also hints that the records

were untrustworthy because Schaetzel, who verified the records, later made false

statements during trial. But those false statements stemmed from confusion about

                                           7
              Case: 19-11852      Date Filed: 05/06/2020    Page: 8 of 17

a technical legal rule, and as the district court put it, Schaetzel was not “guilty of

deliberately deceiving the Court.” Nothing else Scidera points to even suggests an

abuse of the district court’s broad discretion to admit evidence.

                                           2.

      Scidera also takes direct aim at the district court’s decision to grant summary

judgment—challenging the court’s conclusions that the parties had a contract and

that the damages from the contract’s breach were undisputed.

      The contract issue boils down to whether the parties really agreed on the key

terms of the law firm’s legal representation. Georgia “courts apply an objective

theory of intent” to determine “if parties had the mutual assent or meeting of the

minds necessary to reach agreement.” Cox Broad. Corp. v. Nat’l Collegiate

Athletic Ass’n, 297 S.E.2d 733, 737 (Ga. 1982). Courts “look for the intent of the

parties as objectively manifested in what they have communicated to one another

rather than their unexpressed subjective intent.” Pargar, LLC v. CP Summit Retail,

LLC, 730 S.E.2d 136, 141 (Ga. Ct. App. 2012). “When reviewing whether the

parties formed a contract, the circumstances surrounding the making of the

contract, such as correspondence and discussions, are relevant in deciding if there

was a mutual assent to an agreement, and courts are free to consider such extrinsic

evidence.” DeKalb Cty. Sch. Dist. v. Gold, 834 S.E.2d 808, 812 (Ga. 2019)

(citation and punctuation omitted). And “a party’s conduct may bind him to the

                                           8
              Case: 19-11852     Date Filed: 05/06/2020   Page: 9 of 17

terms of a contract, even if he does not sign the agreement.” Hemispherx

Biopharma, Inc. v. Mid-S. Capital, Inc., 690 F.3d 1216, 1225 (11th Cir. 2012).

      The undisputed facts here point in one direction: Meunier performed its

services under the reasonable view that Scidera had agreed to pay for them. Early

in their four-year relationship, the parties had negotiated an engagement letter.

Among other things, the letter listed hourly rates of attorneys who would work on

Scidera matters, and it called for Meunier to have an approved budget before

starting any new matter that would cost more than $5,000. Although Scidera never

formalized the agreement by signing the letter, these requirements dictated the

parties’ actions. The law firm represented Scidera, and Scidera paid the law firm.

      This arrangement held during the Mars litigation. Meunier proposed a

detailed budget. As the budget explained, it can be difficult to estimate fees

because costs depend on the actions taken by the opposing party. That litigation

did take several unexpected turns, including motions over transfer and motions

over adding parties. More motions brought more fees. Although Scidera

expressed some concern about the growing costs, it never claimed that it did not

have to pay—at least, not until the current lawsuit. In fact, the company continued

to pay off some of its bills (unrelated to the Mars litigation) and remained a

Meunier client until 2015. And despite Scidera’s worries, the Mars litigation came

in under the original budget.

                                          9
              Case: 19-11852     Date Filed: 05/06/2020    Page: 10 of 17

       After years of receiving, not objecting to, and even paying the firm’s

invoices, Scidera makes a late-breaking effort to cast doubt on the parties’

agreement. Now it highlights that the engagement letter had a comment from

Meunier that the company could specify other terms to the deal. No matter.

Scidera has not pointed us to anything in the record suggesting that it tried to add

any terms, and the parties’ conduct shows that they operated as if the contract had

been signed—making the letter binding. Hemispherx Biopharma, 690 F.3d at

1225. Scidera also critiques the district court for looking at the parties’

relationship on the wholesale rather than retail level. But the parties agreed on the

specifics too: Meunier regularly sent invoices detailing what work was done and

providing the initials of the attorneys who completed the work. Moreover, Scidera

does not contest that it directed the law firm’s actions throughout the Mars

litigation.

       For similar reasons, we do not detect a genuine dispute about any material

fact relating to damages. The company continued to pay, rather than protest, the

law firm’s invoices for years. And it has offered no reason to doubt the accuracy

of the invoices or the reasonableness of the rates charged.

                                          C.

       Scidera next contests the court’s award of prejudgment interest to Meunier.

Although Scidera has not identified the proper standard of review, we would find

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no error even on de novo review. As the district court noted, Georgia law

automatically awards prejudgment interest for liquated damages. See O.C.G.A.

§ 7-4-15. “A liquidated claim is for an amount certain and fixed.” Int’l Indem. Co.

v. Terrell, 344 S.E.2d 239, 241 (Ga. Ct. App. 1986). The fact that Scidera

challenges its liability in this suit does not affect the certainty of the damages it

owes. Williamson v. Strickland & Smith, Inc., 673 S.E.2d 858, 862 (Ga. Ct. App.

2009).

      Scidera’s main argument against prejudgment interest misses the mark.

Scidera believes the district court entered contradictory decisions: after all, it says,

the district court did not find as a matter of law that Scidera owed prejudgment

interest but ended up entering judgment for prejudgment interest after the jury

found it should be awarded. But there is no inconsistency here. The court thought

factual questions existed about Scidera’s liability—questions about whether

Meunier had been allowed to bill certain travel time to the company. The jury

determined that Scidera was on the hook for the travel time, so it found not only

that Scidera owed what was billed but also that it owed prejudgment interest on

that amount. Scidera does not challenge these findings, and as we have already

indicated, the other amounts it owed were certain and fixed, as shown by its bills

from Meunier. All these amounts were thus liquidated, requiring the company to

pay prejudgment interest. Int’l Indem., 344 S.E.2d at 241.

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                                          D.

      Scidera also challenges two decisions that it calls “evidentiary rulings,”

which we review under the abuse of discretion standard. ML Healthcare Servs.,

LLC v. Publix Super Mkts., Inc., 881 F.3d 1293, 1297 (11th Cir. 2018). First,

Scidera insists that Meunier must first prove the reasonableness of its fees before

the jury could determine whether the company acted in bad faith by failing to pay

the law firm. But the jury was never tasked with finding what Meunier’s fees were

or with determining whether those fees were reasonable. Instead, the court

allowed Meunier to hold off on proving its fees, ultimately deciding to sanction the

law firm by denying any fees it could otherwise collect. Scidera’s opening brief

(once again) did not bother giving any legal citations even suggesting that the

district court’s approach was wrong. We cannot say that the court abused its

discretion.

      Second, Scidera contests the district court’s decision to limit cross

examination about a partner who left Meunier. During cross, Scidera asked

questions about the buyout of the leaving partner. These questions, Scidera told

the district court, were designed to clarify “who’s the party in interest”; the partner

who paid to get out of the partnership, Scidera said, was “the one that was

damaged by not being paid” for the Mars litigation. But the district court found

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that to be irrelevant to any argument Scidera had made in its pleadings, and Scidera

has given us no citations (to the law or to the record) undermining that conclusion.

                                               III.

       In its cross appeal, Meunier challenges the district court’s sanction. “We

review a district court’s sanctions order for abuse of discretion,” and a “decision

that is contrary to the law plainly is an abuse of discretion.” Amlong & Amlong,

P.A. v. Denny’s, Inc., 500 F.3d 1230, 1237–38 (11th Cir. 2007). In sanctioning

Meunier, the court below quoted Rule 11 of the Federal Rules of Civil Procedure

and relied on its inherent power. Neither source authorizes a sanction here, so we

reverse. Id. at 1238.1

                                               A.

        First, Rule 11. Although the court quoted Rule 11, it did not analyze

whether that Rule applied here. Rule 11 can be invoked by a party or raised sua

sponte by the court. Fed. R. Civ. P. 11(c)(2) (party raised), 11(c)(3) (court raised).

Scidera’s motion asked the court to sanction Meunier. “By definition, a court

responding to a motion is not acting sua sponte.” Peer v. Lewis, 606 F.3d 1306,

1
 Scidera argues that the sanction was “illusory” and insufficient. We need not dive into that
argument, given our conclusion that no sanction was appropriate.

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1313 (11th Cir. 2010). We therefore consider Scidera’s “motion as a motion for

sanctions under Rule 11(c)(2).” Id.2

         A party seeking sanctions must first serve its Rule 11 motion on the

opposing party—and allow 21 days for the offending party to cure the potential

problem by withdrawing the offending paper, claim, or contention. Fed. R. Civ. P.

11(c)(2). Only if the problem remains uncorrected can a party then file its Rule 11

motion in court. Id. The purpose of this “safe harbor provision is to allow an

attorney who violates Rule 11 to correct the alleged violation within twenty-one

days without being subject to sanctions.” Peer, 606 F.3d at 1315. By its own

admission, though, Scidera did not give Meunier the required 21-days’ notice

before filing for sanctions. At any rate, once the issue was brought to Meunier’s

attention, the firm immediately cured the problem by withdrawing its claim for

damages arising from the third party’s production work. Rule 11 thus cannot

apply.

                                                B.

         That leaves only the district court’s inherent powers to sanction a party.

District courts can “fashion an appropriate sanction for conduct which abuses the

judicial process,” but must do so with “restraint and discretion.” Chambers v.

2
 Even if the court had raised the issue on its own initiative, it could not have imposed a Rule 11
sanction unless it found that Meunier’s actions were “akin to contempt.” Kaplan v.
DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003).

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NASCO, Inc., 501 U.S. 32, 44–45 (1991). “Courts considering whether to impose

sanctions under their inherent power should look for disobedience and be guided

by the purpose of vindicating judicial authority.” Purchasing Power, LLC v.

Bluestem Brands, Inc., 851 F.3d 1218, 1225 (11th Cir. 2017). The court should

also consider “the culpability of other parties.” Id.

        “The key to unlocking a court’s inherent power is a finding of bad faith.” Id.

at 1223. As relevant here, a “finding of bad faith is warranted where an attorney

knowingly or recklessly raises a frivolous argument.” Barnes v. Dalton, 158 F.3d

1212, 1214 (11th Cir. 1998) (citation omitted). A party’s “false statements alone

do not indicate bad faith.” Byrne v. Nezhat, 261 F.3d 1075, 1125 (11th Cir. 2001),

abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S.

639 (2008). Nor do merely reckless misstatements, standing alone, “satisfy the

inherent powers standard; there must be more.” Purchasing Power, 851 F.3d at

1225.

        Following these principles, we have overturned sanctions where the record

“does not yield the inference” that the sanctioned party “knew her claim was

frivolous or that she sought to harass” the other party. Byrne, 261 F.3d at 1125.

And we have also overturned sanctions for false statements about jurisdiction when

everyone in a case thought and “trusted that diversity jurisdiction existed, but no

one verified it.” Purchasing Power, 851 F.3d at 1220.

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      Those principles require that we reverse the sanction placed on Meunier.

The district court did not find that Meunier acted with subjective bad faith, nor

does the record support such a finding. Instead, the district court found that

“neither Plaintiff, Plaintiff’s counsel, nor Mr. Schaetzel is guilty of deliberately

deceiving the Court.” The court also resisted Scidera’s invitation to assign

“sinister motives” to Meunier’s actions. To the contrary, the court noted that

Meunier had “produced the very documents that Defendant sought to use to

impeach Mr. Schaetzel.” Everyone in the case, the court recognized, “was

operating under the assumption that the collateral source rule applied,” a rule that

would keep out evidence of the insurer’s payments to Meunier. The court saw “no

reason to assume that had Plaintiff known” about the legal weakness of its

collateral source argument, “it would not have withdrawn the claim prior to trial.”

      This is not the stuff of subjective bad faith. Nothing here smacks of fraud on

the court or disobedience to its orders. False statements—even those recklessly

made—cannot justify sanctions grounded in the court’s inherent authority. What is

more, the record “does not yield the inference” that Meunier knew its “claim was

frivolous or that [it] sought to harass” the other party. Byrne, 261 F.3d at 1125. As

the district court’s order reflects, everyone in the case was simply confused about

what the law required, and Meunier’s false claims stemmed from that confusion.

See Purchasing Power, 851 F.3d at 1220.

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      To be sure, as the court below noted, “confusion does not excuse” Meunier.

But Meunier already paid a price for its mistake. To begin with, on cross-

examination, Schaetzel had to admit to the jury that his earlier statements were

false. The court also explained that Meunier “arguably imposed a penalty upon

itself” by withdrawing its entire claim for damages related to the third party’s

document production—even though some of those damages were not covered by

insurance. The harm to Meunier’s “credibility, finances, and time is enough of a

sanction to curb their conduct and to serve as a warning to future” litigants.

Purchasing Power, 851 F.3d at 1228.

                                    *     *      *

      As the district court’s judgment reflects, the law requires that Meunier be

paid for its work, with prejudgment interest. That said, we disagree with the

district court’s decision to sanction Meunier. The record does not support a

finding of bad faith on its part, which would be required to justify the sanction.

We AFFIRM in part, REVERSE in part, and REMAND for factfinding on the

attorney’s fees owed to Meunier.

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