811 F.Supp. 1568 (1993)
UNITED STATES of America, Plaintiff,
v.
Jody CANNON, Defendant.
Crim. No. 92-41-MAC(DF).
United States District Court, M.D. Georgia, Macon Division.
January 29, 1993.
*1569 *1570 Miriam Duke, Sharon Ratley, Asst. U.S. Attys., Macon, GA, for plaintiff.
Mitchell P. House, Jr., Sell & Melton, Macon, GA, for defendant.
FITZPATRICK, District Judge.
Defendant's motion for judgment of acquittal and motion for a new trial presently are pending before the Court. Defendant Cannon was charged in a five (5) count indictment with violations of 18 U.S.C. § 371 i/c/w 18 U.S.C. § 1001 and 18 U.S.C. § 1001 and § 2. Cannon was found guilty only of Counts One and Five.

I. JUDGMENT OF ACQUITTAL
A judgment of acquittal only may be granted if the evidence is insufficient to support the verdict. See United States v. Varkonyi, 611 F.2d 84, 86 (5th Cir.), cert. denied, 446 U.S. 945, 100 S.Ct. 2173, 64 L.Ed.2d 801 (1980). In considering Defendant's motion, this Court must determine whether, "viewing all the evidence in the light most favorable to the Government and drawing all reasonable inferences and credibility choices in favor of the jury's verdict, [citation omitted], a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." United States v. O'Keefe, 825 F.2d 314, 319 (11th Cir.1987) (citation omitted). Furthermore, "it is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. A jury is free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

A. Background
The following evidence, viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), was presented at trial. Jody Cannon worked for Space Age Manufacturing, Inc. ("Space Age") approximately twenty (20) years. (Transcript, Volume 2, page 85) (hereinafter "T____:____"). He served as the General Manager during the time covered in the indictment and left the company in 1990 when he realized that his opportunities for advancement were limited. (Id.) John C. "Jack" Kerstetter is the President and sole owner of Space Age. (T1:30). Space Age was awarded Air Force contracts to produce C-130 aircraft parts and armor plating for H-53 helicopters.
Linda Phillips, a former agent of the Air Force Office of Special Investigations, testified that she first met Cannon on January 18, 1991, while executing a federal search warrant, unrelated to the present case, at Falcon Manufacturing where Defendant *1571 was employed as General Manager and Vice-President. (T1:54-55). While executing the warrant, Cannon approached Agent Phillips and said "if you think this is bad, you should hear what happened at Space Age." (T1:55). When Agent Phillips asked what Cannon was he talking about, he responded "what's in it for me," (T2:28), and indicated that he had information regarding C-130 aircraft parts that had been manufactured by Space Age, which did not conform to contract specifications. (T1:56). Defendant then accompanied Agent Phillips to Robins Air Force Base ("RAFB") to be interviewed. (Id.) During the interview Cannon explained he had been the General Manager at Space Age and had been responsible for the day-to-day operation and management of the plant and that he had dealt with the government on government contracts and had submitted bids and placed orders.[1] (T1:72). He also gave information concerning connecting links Space Age had manufactured for C-130 airplanes. (T1:64).
On January 22, 1991, Defendant voluntarily returned to Agent Phillips' office and told her that Space Age had received five contracts from RAFB for the production of armor plating for the use on H-53 helicopters and that Space Age had not complied with the contract's material specifications on some of those contracts.[2] (T1:64-65). Contract F09603-89-6-0051-0063 ("contract 0063") required the use of MIL-T-46077 titanium, which is titanium that has been ballistically tested. (See T1:66; Government Exhibit 21-C). Cannon told Agent Phillips that when Space Age ran out of MIL-T-46077 he realized that it would lose money if it purchased MIL-T-46077 as opposed to MIL-T-9046 titanium, which has not been ballistically tested. (T1:69). He discussed this discovery with Kerstetter who told[3] him to order MIL-T-9046. (T1:70). On March 21, 1990, Cannon ordered MIL-T-9046 titanium. (T2:107, 109; Government Exhibit 24-A-2). When Agent Phillips asked how he got the substitution past the government's Quality Assurance Representative[4] ("QAR"), Cannon explained that by taking the certification of conformance from the titanium seller, B & S Aircraft Alloys, Inc., ("B & S"), for MIL-T-46077 titanium, copying it and whiting out the appropriate section, he could reuse the same certificate for other contracts when the QAR came to the plant. (T1-71).
Space Age submitted a DD Form 250[5] ("DD 250"), dated April 16, 1990, and signed by QAR Don Haas, (T1-90), to the Air Force and was paid for contract 0063. (T3:35). A DD 250 is the material inspection and receiving report prepared by a contractor when he is ready to deliver the contract items to the government. (T3:21). The pre-printed government form contains the following statement:
____ PQA ____ ACCEPTANCE of the listed items has been made by me or under my supervision and they conform to contract, except as noted herein or on supporting documents.
A signature line for the QAR appears below the statement. (Government Exhibit 24-A-1). When the contractor submits the document he is telling the government that he has manufactured the items in accordance with government specifications and is ready to deliver them. (T3:35).
*1572 QAR Haas testified that he had dealt with Cannon, Kerstetter and Mike Shepard as quality control managers for Space Age. (T3:46). When Haas visited Space Age he was provided with an inspection folder, which contained anything applicable to a contract. (T3:47). Before he signed a DD 250 Haas would look for the certification of conformance, which was in the contractor's inspection file, and make sure it complied with the contract specification. (T3:62). He had no way of knowing whether the materials listed on the certification actually were used in the product. Rather, he had to rely on the contractor's integrity and the certificate of conformance to know that what was ordered was actually used. (T3:64-65).
Although Agent Phillips testified that a B & S certification of conformance designating MIL-T-9046[6] titanium was in Space Age's inspection folder for contract 0063 when it was seized, Haas testified that he did not see that particular document on the day he signed the DD 250. Haas further stated that he was not curious when Kerstetter presented him with the Space Age inspection report for contract 0063, which contains a reference to 6AL4V titanium[7], (T3:77, Defendant's Exhibit 16), because he checked the contract and then pulled the certification of conformance and verified it to the contract specification. (T3:79, 81). He admitted that he did not know if the certification of conformance for MIL-T-46077 titanium was in the inspection file, but testified that at the time the DD 250 was presented to him, he was given the right documentation or he would not have signed the form. (T3:91). He denied signing the DD 250 without inspecting the product. (T3:92).
On January 24, 1991, Agent Phillips and FBI Agent Fred Stofer executed a search warrant on Space Age and seized records concerning the contracts for armor plating and C-130 aircraft parts.

B. Discussion
Defendant contends that the evidence is insufficient to sustain his convictions.

1. Count One

Count One of the indictment charged Cannon with conspiracy to defraud the United States government in that he "made, caused to be made, used and caused to be used, false and fraudulent documents in performance of certain contracts for manufacture of certain items for the United States Air Force." In order to sustain the conspiracy conviction the evidence must show an agreement by two or more persons to combine efforts for illegal purposes and an overt act in furtherance of the conspiracy by one of the members. United States v. Fischetti, 450 F.2d 34, 40 (5th Cir.1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1972). Having reviewed the trial transcript the Court concludes that a reasonable jury could conclude that the Government proved Count One beyond a reasonable doubt.

2. Count Five

In Count Five[8] Defendant was charged with aiding and abetting the making of a false document, causing a false document to be made, using a false document *1573 or causing a false document to be used in violation 18 U.S.C. § 1001 and 18 U.S.C. § 2. In order to uphold an aiding and abetting charge the Government must prove "that a substantive offense was committed, that the defendant associated himself with the criminal venture, and that he committed some act which furthered the crime." United States v. Hamblin, 911 F.2d 551, 557 (11th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2241, 114 L.Ed.2d 482 (1991).
The first issue is whether a § 1001 violation was committed. The elements of a Section 1001 offense are: "(1) statement, (2) falsity, (3) materiality, (4) specific intent and (5) agency jurisdiction." United States v. Godinez, 922 F.2d 752, 755 (11th Cir.1991). Defendant argues that the Government did not prove the second and fourth elements.
Defendant first contends that the DD 250 was not false when submitted to the QAR. The Court is willing to concede that when the DD 250 was presented to the QAR no explicit representation concerning compliance was being made. The Government also argues, however, that the false DD 250 also was used to obtain payment. Thus, even if no false statement was made when the DD 250 was presented to the QAR, a false document certainly was made when he certified that the contract specifications had been met. Cannon admitted to Agent Phillips that MIL-T-9046 titanium was used in the production of armor plating for contract 0063. Thus, the evidence established that the DD 250 was false when it was submitted for payment.
The next issue, which concerns intent, is whether the Defendant associated himself with a criminal venture. In order to prove association the evidence must show that the defendant shared the criminal intent necessary to commit the substantive offense. United States v. Longoria, 569 F.2d 422 (5th Cir.1978) (citing United States v. Smith, 546 F.2d 1275 (5th Cir. 1977). Evidence that a "defendant voluntarily gives false information or participates in a plan such that it is foreseeable that false information will be used in statements made to the government agency in order to further the plan", United States v. Beck, 615 F.2d 441, 453 (7th Cir.1980) (emphasis added), is sufficient to sustain a conviction for aiding and abetting. Id.; accord, United States v. Austin, 585 F.2d 1271 (5th Cir.1978). Therefore, the intent requirement in a § 1001 prosecution is satisfied if the defendant knows that success of a scheme is dependent on misrepresentations to and concealment from a government agency. Beck, 615 F.2d at 453 (citing United States v. Lozano, 511 F.2d 1, 5 (7th Cir.), cert. denied, 423 U.S. 850, 96 S.Ct. 94, 46 L.Ed.2d 74 (1975)). Furthermore, "[p]ersonal knowledge of the false information also satisfies the intent requirement." Beck, 615 F.2d at 453 (citation omitted).
In Lozano, the defendant was convicted for aiding and abetting an illegal alien in filing a document with the INS, which concealed, in violation of 18 U.S.C. § 1001, that she had married his co-defendant in order to obtain permanent alien resident status. The Seventh Circuit held that the evidence that the alien was a boarder at the defendant's home, that he put her in touch with his co-defendant and that he was active in arranging the marriage ceremony showed his intentional participation in the § 1001 violation and was sufficient to sustain his conviction because it was "easily foreseeable", Lozano, at 5, that the alien would inform the INS of her marriage while concealing its true nature and that such concealment was essential to the success of the scheme.
Additionally, in Austin the defendant checking account holder was convicted of aiding and abetting bank officers in misapplying FDIC-insured bank funds, making false entries in the banks books and reports and concealing material facts about the banks's condition from the FDIC. The defendant wrote a number of worthless checks, which the bank officers covered with bank funds. The bank officers used various methods to prevent the FDIC examiners from discovering the overdrawn condition of the defendant's account. The former Fifth Circuit held that the account *1574 holder's culpability for making the false entries "emanate[d] from his knowing participation in the check writing scheme ... the false entries and concealments were natural consequences of this scheme." Id. at 1277 (emphasis added).
The evidence in the present case is similar to the evidence in both Austin and Lozano because the filing of a false DD 250 to cover the substitution of materials was "easily foreseeable," and a "natural consequence" of the scheme to substitute non-specified materials and essential to its success. Defendant ordered MIL-T-9046 for contract 0063 knowing that a DD 250 eventually would be submitted to the Government. Furthermore, Agent Phillips testified that when she asked Defendant what he meant when he referred to what happened at Space Age he said "what's in it for me," a statement from which the jury could infer intent. Finally, when Agent Phillips asked Cannon how he got the substitution of material past the QAR, he told her he altered documents.[9] This testimony buttresses the inference that Cannon knowingly and wilfully caused the false document to be made or used.
The final issue is whether Cannon participated in the criminal venture. In order to prove participation the evidence must establish that the defendant engaged in affirmative conduct, that is, that he "committed an overt act designed to aid in the success of the venture." Longoria, 569 F.2d at 425 (5th Cir.1978). Proof of negative acquiescence is insufficient. Id. "A culpable aider and abettor, [however], need not perform the substantive offense, need not fully know all its details, and need not even be present". United States v. Pope, 747 F.2d 632, 665 (11th Cir.1984) (footnotes omitted).
Defendant argues that he cannot be connected to the false document because he neither prepared nor signed the DD 250. The Government, however, does not have to prove that Cannon actually prepared the false document, Beck, 615 F.2d at 453; accord, Austin, supra, or that Cannon even knew that the DD 250 would be filed. Beck, 615 F.2d at 453. Furthermore, in a prosecution under the third clause of § 1001, the Government does not have to prove that Cannon or those he aided and abetted actually made the false statement. See United States v. Lanier, 578 F.2d 1246, 1250 (8th Cir.) (conviction upheld where defendant employed forms compiled by state officials and defendant knew that such forms reflected false bank deposits), cert. denied, 439 U.S. 856, 99 S.Ct. 169, 58 L.Ed.2d 163 (1978).
Defendant also argues that Cannon could not have caused a false document to be made because Kerstetter provided Haas with an inspection sheet that indicated that 6AL4V titanium, which includes both ballistically tested and non-ballistically tested titanium, had been used. Therefore, Defendant argues, since the designation on the inspection sheet is literally true, Cannon did not cause the false document to be made. Haas, however, testified that he did not rely on the inspection sheet when signing the DD 250. Rather, he noted the generic titanium designation and checked other documents to certify that the required titanium had been used. Although Haas' credibility was damaged on cross-examination and by Agent Phillips' testimony concerning the documents that were in the inspection file at the time the search warrant was executed, the "credibility of witnesses is to be determined by the jury even where strong impeaching testimony is presented." United States v. Miles, 472 F.2d 1145, 1146-47, (8th Cir.), cert. denied, 412 U.S. 907, 93 S.Ct. 2299, 36 L.Ed.2d 972 (1973). Moreover, even if Cannon did not cause the document to be made, he caused it to be used because it was submitted for payment because he ordered *1575 the non-conforming titanium. Therefore, there was evidence that supported the reasonable inference that Cannon participated in the criminal venture.
The Government's failure to prosecute or to obtain a prior conviction of a principal, although strange, does not preclude the conviction of an aider and abettor as long as the culpability of the principal is proven. United States v. Musgrave, 483 F.2d 327, 332-33 (5th Cir.1973). Jack Kerstetter's name was mentioned time and time again during the trial and his initials appeared on incriminating documents. He was also the person who presented the DD 250 to the QAR. A jury could assume that any ill-gotten profits of the scheme to defraud would profit the owner of the company more than a mere employee. In fact, the record is devoid of any evidence that Cannon defrauded his employer and operated this scheme for his personal benefit. Therefore, the record supports the inference that Jack Kerstetter was the culpable principal. Consequently, Jody Cannon's conviction for aiding and abetting a violation of § 1001 can stand.
The Court doubts that the evidence against Cannon would have been sufficient if the aiding and abetting theory of liability had not been submitted to the jury[10], especially in light of United States v. Dick, 744 F.2d 546 (7th Cir.1984). In Dick the defendant was charged with a violation of § 1001. The appellate court stated that the evidence, which showed that the defendant knew that the statements were false and presumably necessary to further the scheme to defraud, was not sufficient to sustain his conviction because the Government did not show that the defendant participated in making them or that he was aware that they were made. In dicta, however, the circuit court stated that if the Government had argued an aiding and abetting theory of liability the conviction would have been upheld.
In the instant action there was no direct evidence that Cannon actually submitted the document to the Air Force for payment. Moreover, the only evidence that Cannon caused the false document to be made, aside from ordering the non-conforming titanium, was Agent Phillips' testimony that Cannon said he had altered documents to get the substitution past the QAR. Although the Government did not produce any altered documents, Haas testified that he was provided the proper certification for the DD 250. The question then becomes whether it is a reasonable inference that Haas saw a document altered by Cannon, which caused him to certify that contract specifications had been met. The Court, however, need not decide this issue since the evidence is sufficient to sustain Defendant's conviction under an aiding and abetting theory of liability.

II. MOTION FOR A NEW TRIAL
Defendant argues that a new trial should be granted based on this Court's exclusion of certain evidence, the admission of irrelevant and prejudicial evidence and prosecutorial misconduct. The Court addressed these issues during the trial and is not persuaded that its trial rulings were incorrect. The Court, however, will address Defendant's arguments concerning prosecutorial misconduct during closing argument.
First, Defendant argues that Assistant United States Attorney ("AUSA") Duke referred to an unrelated alleged crime and thus improperly put his character in issue when she made the argument that he only spoke to the Agent Phillips "in order to get himself out of a deep crack," (T5:159), like "every child who has ever been caught doing something wrong has said." (Id.) *1576 These comments were made in response to defense counsel's argument that Cannon provided the Government with information with no ulterior motive. (T3:129, 140). Defendant immediately moved for a mistrial, which this Court denied. (T5:162). The Court then gave a cautionary instruction. (T5:163).
Defendant contends that AUSA Duke immediately thereafter made the same argument. The Court disagrees. A careful reading of AUSA Duke's statements shows that she shifted the direction of her prior statements from the argument that Cannon only provided information to the Government to get himself out of trouble relative to the search warrant being executed at Falcon Manufacturing, to an argument rebutting defense counsel's argument that Kerstetter was the only person guilty of submitting false DD 250s. (See T5:138, 139, 163). Thus, the Court does not view AUSA Duke's statements after the cautionary instruction as referring to any alleged wrongdoing related to the search warrant executed at Falcon.
Second, Defendant objects to the prosecutor's statements concerning the protection of military personnel. AUSA Duke made her comments in response to defense counsel's characterization of the prosecution of the Defendant as "meanspirited." (T5:130, 142, 143). The Eleventh Circuit has held that a prosecutor has a right to respond to a defendant's attack on the Government. United States v. Eley, 723 F.2d 1522, 1526 (11th Cir.1984). Furthermore, the lack of prejudice to the Defendant is evidenced by his acquittal on three counts involving contracts for armor plating. See United States v. Rodriquez, 765 F.2d 1546, 1560 (11th Cir.1985).
Finally, in his reply brief Defendant argued that AUSA Duke made an improper argument when she told the jury that Jack Kerstetter was not immune from prosecution and that, although "he is uncharged today, [t]hat does not mean he won't be charged tomorrow." (T5:145). Defendant contends that the statements were misleading in light of Howard I. Wooden's Affidavit, which states that Jack Kerstetter told him that Denmark Groover, [Kerstetter's attorney], told him before Cannon's trial that he [Kerstetter] would not be prosecuted. In its response the Government provided the Court with a letter from Mr. Groover to AUSA Duke in which he states that she never told him that Kerstetter would not be indicted. (See Exhibit "A" to Government's Supplemental Response).
Even if, however, the Government never had any intention of prosecuting Kerstetter, the Court concludes that the remarks would be misleading but not prejudicial. As stated above, Cannon's acquittal on three counts of the indictment negates any alleged prejudice. Additionally, Cannon's guilt does not hinge on whether or not Kerstetter eventually is indicted. Rather, it hinges on the evidence presented at trial. The Court concedes that the remarks probably eroded the potential for a jury nullification, but that does not make them prejudicial. Therefore, the Court concludes that the alleged misconduct was not so pronounced and persistent that it permeated the entire atmosphere of the trial. United States v. Herring, 955 F.2d 703 (11th Cir. 1992).

CONCLUSION
Accordingly, for the reasons stated above, Defendant's motions are DENIED.
SO ORDERED.
NOTES
[1]  Although Cannon contends that the Government did not establish that he had these duties, Suzanne Walker, Lead Contracting Officer for the Special Forces Directorate at RAFB, testified that she had dealt with Jody Cannon a number of times and specifically on contract 0063. Additionally, Marilyn Greenwald, a metals broker at B & S Aircraft Alloys, Inc., testified that Cannon placed orders with her. (T2:92).
[2]  Cannon provided the specific contract numbers to Agent Phillips in conversations that occurred after January 22, 1991.
[3]  Defendant states that the evidence only shows that he was "ordered" to purchase the non-specified titanium. Agent Phillips, however, testified that Jody Cannon never told her that he was forced to substitute the non-specified titanium or that he involuntarily ordered it. (T2:82).
[4]  The QAR assures that a government contractor is complying with all government specifications and accepts the product for the government. (T3-42).
[5]  Government Exhibit 24-A-1 is DD Form 250 for Space Age Job No. 5497, which corresponds to government contract 0063. (T1-90).
[6]  Government Exhibit 24-B-1.
[7]  Ms. Greenwald testified that MIL-T-9046 and MIL-T-46077 are military specifications for 6AL4V titanium. (T2:93).
[8]  Count Five specifically alleges:

That on or about April 16, 1990, in the Macon Division of the Middle District of Georgia and elsewhere within the jurisdiction of this Court, JODY CANNON, defendant herein, aided and abetted by others, in a matter within the jurisdiction of the Department of Defense and the United States Air Force, departments and agencies of the United States of America, did knowingly and willfully make, cause to be made, use, and cause to be used, false, fictitious, and fraudulent statements and representations and did make, cause to be made, use, and cause to be used, false writings and documents knowing the same to contain false, fictitious, and fraudulent statements, to wit: defendant used and caused to be used a Form DD 250 for the Department of Defense and the United States Air Force which certified that contract specifications for contract number F09603-89-G-0051-0063 had been fully performed, when in truth and fact as the defendant well knew, said contract specifications had not been performed as required by contract, in violation of Title 18, United States Code, Section 1001 and Section 2.
[9]  Defendant points out that the Government never produced an altered document to support this testimony. Haas, however, testified that he never saw the documents present in contract number 0063's inspection file when it was seized. Rather, he stated that he saw documents that attested to usage of MIL-T-46077 titanium. The Court, however, concludes that even if testimony concerning the alteration of documents were completely discounted, there still would be sufficient evidence to prove intent.
[10]  The Court realizes that the verdict did not refer to 18 U.S.C. § 2. Nevertheless, the dispositive issue is whether the Government presented an aiding and abetting theory of liability to the jury. United States v. Dick, 744 F.2d 546, 554 (7th Cir.1984). The Court further notes that the presence of the conspiracy count does not affect Cannon's aiding and abetting liability on the § 1001 offense even if it was committed pursuant to the conspiracy. Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949). As in Nye & Nissen the jury in the instant case was not charged on co-conspirator liability. Nonetheless, the jury was instructed on the "equally valid theory", id. 336 U.S. at 618, 69 S.Ct. at 769, of aiding and abetting liability.


346 F.2d 569
Simon Gerberich STEIN, Individually, and Simon Gerberich Stein, Executor of the Estate of Jessie W. Stein, Deceased, Appellants,v.UNITED STATES of America, Appellee.
No. 17919.
United States Court of Appeals Eighth Circuit.
June 29, 1965.

Appeal from the United States District Court for the Southern District of Iowa; Roy L. Stephenson, Chief Judge.
Robert C. Tilden, William P. Ellwood, Cedar Rapids, Iowa, for appellants.
Martin T. Goldblum, Atty., Tax Div., Dept. of Justice, Washington, D. C., Louis F. Oberdorfer, Asst. Atty. Gen., Tax Div., Dept. of Justice, Lee A. Jackson, and Richard J. Heiman, Attys., Dept. of Justice, Washington, D. C., and Donald A. Wine, U. S. Atty., Des Moines, Iowa, for appellee.
Before VOGEL, MATTHES and RIDGE, Circuit Judges.
PER CURIAM.

1
In his findings of fact and conclusions of law as published in Stein v. United States, D.C.S.D.Iowa, 1964, 240 F.Supp. 818, Chief Judge Stephenson clearly and cogently demonstrates the correctness of the Commissioner's denial of the taxpayer's claim for refund herein. Being completely in accord with Judge Stephenson's findings and conclusions, we affirm on the basis thereof.

2
Affirmed.


964 A.2d 439 (2008)
COM.
v.
LEONE.
No. 89 WDA 2008.
Superior Court of Pennsylvania.
October 17, 2008.
Affirmed.


3 P.3d 1113 (2000)
197 Ariz. 193
SAN TAN IRRIGATION DISTRICT, a political subdivision of the State of Arizona, Plaintiff-Appellee,
v.
WELLS FARGO BANK, Defendant-Appellant.
No. 1 CA-CV 99-0091.
Court of Appeals of Arizona, Division 1, Department B.
January 25, 2000.
*1114 Streich Lang P.A. by Dawn R. Gabel, Phoenix, for Defendant-Appellant.
Martinez & Curtis, P.C. by William P. Sullivan Larry K. Udall, Phoenix, for Plaintiff-Appellee.

OPINION
SULT, Judge.
¶ 1 Wells Fargo Bank appeals from the grant of summary judgment to San Tan Irrigation District on San Tan's claim of conversion under Article 3 of the Uniform Commercial Code, Arizona Revised Statutes Annotated ("A.R.S.") section 47-3420 (1997). Because the trial court erred in failing to consider the applicable statutory defenses asserted by Wells Fargo, we reverse the grant of summary judgment and remand for further proceedings.

BACKGROUND
¶ 2 San Tan's conversion claim was based on Wells Fargo accepting for deposit checks that, while payable to San Tan, had a forged endorsement placed thereon by San Tan's bookkeeper, Glenda Miller, who deposited the checks into her personal account at Wells Fargo. According to San Tan, Wells Fargo's acceptance of the forged deposits created prima facie liability to San Tan for statutory conversion. And because Wells Fargo did not exercise due care in the transactions, it became absolutely liable to San Tan in the amount of the checks accepted for deposit. The lack of due care, San Tan argued, lay in Wells Fargo's employees' violations of several bank policies designed to detect forged instruments and their general ineptness in failing to detect what should have been obvious fraud.
¶ 3 According to Wells Fargo, San Tan had entrusted Ms. Miller with the sole responsibility for receiving, posting, and depositing payments made to San Tan by its irrigation customers. Ms. Miller was San Tan's only full-time employee, and the company neither monitored Ms. Miller's activities nor placed any internal controls on her. The only reason the defalcation by Ms. Miller came to *1115 light was because a customer questioned why it had not been credited with a payment it had made, a payment that had been diverted by Ms. Miller.
¶ 4 Based on its version of the facts, Wells Fargo raised the defenses to conversion provided by A.R.S. §§ 47-3405 and 47-3406 (1997). San Tan responded that these defenses did not apply and that Berthot v. Security Pacific Bank, 170 Ariz. 318, 823 P.2d 1326 (App.1991), was the controlling precedent. According to San Tan, Berthot required a finding that section 47-3420 imposed liability on Wells Fargo unless it could prove that it acted with due care, a defense San Tan asserted was provided by § 47-3420 and the only defense available against a claim for conversion. The trial court apparently accepted San Tan's argument regarding Berthot and apparently also found that the evidence precluded any possibility that Wells Fargo could prove it exercised due care in accepting and processing the subject deposits. The trial court therefore granted summary judgment to San Tan, and Wells Fargo timely appealed.

ISSUE
¶ 5 On appeal, San Tan has changed its position, abandoning its assertion that sections 47-3405 and 47-3406 are not applicable to a conversion claim under section 47-3420, and arguing instead that Wells Fargo cannot utilize those defenses because it cannot meet the good faith requirement imposed by both statutes on a depositary bank. Wells Fargo not only argues that the defenses are available against a conversion claim under section 47-3420 but also adds that on this record, it clearly satisfies the test of good faith. Our focus on appeal thus becomes whether there is a genuine issue of material fact that Wells Fargo exercised "good faith" as that term is used in sections 47-3405 and 47-3406.

ANALYSIS
¶ 6 Section 47-3420 provides a right of recovery to the payee of an instrument against a depositary or payor bank that pays the instrument over a forged endorsement. See A.R.S. § 47-3420 U.C.C. cmt. 1 (1997). The claim is considered to be one for conversion and replaces the previous common law remedy of negligence. See Berthot, 170 Ariz. at 324, 823 P.2d at 1332.[1]
¶ 7 A claim under section 47-3420 may be defeated in whole or in part if the payee of the instrument is an employer and the forgery was accomplished by an employee entrusted by the payee with responsibility for the instrument. Alternatively, the action may be defeated or recovery reduced if the forgery was enabled by the negligence of the payee. These scenarios are covered in sections 47-3405 and 47-3406, respectively, and each scenario presents a series of factual questions that must be resolved in order to determine whether and to what extent the payee may recover from the bank.
¶ 8 We now set forth the pertinent portions of each statute. Section 47-3405(B) provides:
For the purpose of determining the rights and liabilities of a person who, in good faith, pays an instrument or takes it for value or for collection, if an employer entrusted an employee with responsibility with respect to the instrument and the employee ... makes a fraudulent indorsement of the instrument, the indorsement is effective as the indorsement of the person to whom the instrument is payable if it is made in the name of that person. If the person paying the instrument or taking it for value or for collection fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss resulting from the *1116 fraud, the person bearing the loss may recover from the person failing to exercise ordinary care to the extent the failure to exercise ordinary care contributed to the loss.
(Emphasis added.)
Section 47-3406(A) and (B) provide:
A. A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to the making of a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection.
B. Under subsection A, if the person asserting the preclusion fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss, the loss is allocated between the person precluded and the person asserting the preclusion according to the extent to which the failure of each to exercise ordinary care contributed to the loss.
(Emphasis added.)
¶ 9 The two statutes share the requirement that a depositary bank seeking to defeat a recovery under section 47-3420 must demonstrate that it acted in good faith in paying, or taking for value or collection, a forged instrument. As to what "good faith" means, Wells Fargo relies both on the definition found in section 47-1201 (1997), describing good faith as "honesty in fact in the conduct or transaction concerned," and on City of Phoenix v. Great Western Bank & Trust, 148 Ariz. 53, 712 P.2d 966 (App.1985), applying that same definition in the context of the "fictitious payee" statute of Article 3. Wells Fargo argues that because there is absolutely no evidence that it acted dishonestly in regard to the subject transactions, it must be held to have satisfied the good faith requirement.
¶ 10 The problem with Wells Fargo's position is that there is a different definition of good faith applicable to transactions covered by Article 3, the Article that governs the disposition of this case. That definition is found in A.R.S. § 47-3103(A)(4) (1997) and specifies that good faith is composed of "honesty in fact and the observance of reasonable commercial standards of fair dealing." (Emphasis added.) This Article 3 definition was not added until 1993, which is why City of Phoenix, decided in 1985, relied on the more limited definition from the U.C.C.'s general definition section, and also why City of Phoenix is of no assistance in determining the issue before us.[2]
¶ 11 With respect to the Article 3 definition, it is San Tan's position that while Wells Fargo may have acted honestly, it did not satisfy the second prong of fair dealing. San Tan describes Wells Fargo's actions as completely irresponsible and asserts that, rather than observing reasonable commercial standards of fair dealing, Wells Fargo was careless in accepting the subject checks for deposit in light of the circumstances surrounding the endorsements and the deposit information provided by the bookkeeper. This carelessness, according to San Tan, was so extreme that it equated to a lack of fair dealing, a finding that San Tan asserts is required on this record as a matter of law.
¶ 12 We need not decide whether the evidence supports San Tan's characterization of Wells Fargo's actions because we find San Tan's contention erroneously attempts to infuse negligence concepts into a determination of good faith. The comment to section 47-3103(A)(4) makes it clear that the fair dealing prong of the good faith definition "is concerned with the fairness of conduct rather than the care with which an act is performed. Failure to exercise ordinary care in conducting a transaction is an entirely different concept than failure to deal fairly in conducting the transaction." A.R.S. § 47-3103 U.C.C. *1117 cmt. 4. Consequently, San Tan gains nothing by characterizing Wells Fargo's conduct as careless, because it is the fairness with which a party handles a transaction, not the care with which it does so, that is the proper focus of inquiry. See 2 James J. White & Robert S. Summers, Uniform Commercial Code § 19-3(c), at 245-46 (4th ed.1995).
¶ 13 Because the trial court accepted San Tan's position that sections 47-3405 and 47-3406 did not apply, that court never reached the question whether there was a triable issue of fact regarding Wells Fargo's good faith. With respect to that inquiry, we note that the two aspects of the good faith definition are subject to differing tests to determine whether a party has acted in good faith. See Maine Family Federal Credit Union v. Sun Life Assurance Co. of Canada, 727 A.2d 335, 340, ¶ 17 (Me.1999) (construing the Article 3 definition of good faith in the context of a holder in due course). "Honesty in fact" is tested by a subjective standard, inquiring into the actual state of mind of the party. Id. at 340-42, ¶ ¶ 18-23. "Observance of reasonable commercial standards of fair dealing" requires an objective measurement of the fairness of the party's action in light of prevailing commercial standards. Id. at 342-44, ¶ ¶ 24-36. Both components must be proved in order to establish good faith, and whether that has been done in a particular case presents a question that ordinarily must be resolved by the fact finder.[3]
¶ 14 Notwithstanding that the trial court never addressed the good faith issue, Wells Fargo requests that we resolve the issue in its favor, arguing that the record supports such a ruling. We disagree because we find the record insufficient. While we agree with Wells Fargo that San Tan presented no evidence that Wells Fargo acted other than honestly, this only partially answers the question. What is missing from the record is any evidence relating to the fairness of Wells Fargo's conduct. That is, there is no evidence of the reasonable commercial standards that provide the frame of reference by which the "fair dealing" aspect of Wells Fargo's conduct can be determined. See Maine Family Federal Credit Union, 727 A.2d at 343, ¶ 28. We therefore conclude that a remand to the trial court is required for the parties to develop this issue.
¶ 15 In order to provide guidance to the parties on remand, we briefly comment on the remaining elements of sections 47-3405 and 47-3406. For section 47-3405 to apply, a bank bears the initial burden of proving that an employer entrusted an employee with "responsibility" for the instrument in question. This is a factual inquiry, and subsection (A)(3) of section 47-3405 frames the inquiry, setting forth various criteria from which this determination is made. With respect to this initial step, the negligence of the employer, if any, in enabling the employee's malfeasance is not an issue.
¶ 16 If the bank proves the employer entrusted the employee with responsibility, and also proves that it acted in "good faith," the loss from the transaction is shifted from the bank to the employer. However, the employer can then force the bank to share the loss if it can prove that the bank acted negligently with respect to the transaction and that this negligence substantially contributed to the loss. Both the question of negligence and the question of causation are ordinarily questions of fact, as is the final question under the statute, namely the extent to which the bank's negligence contributed to the loss.
*1118 ¶ 17 Section 47-3406 has a different triggering mechanism.[4] For this section to apply in a case such as ours, a bank must show that the employer's negligence permitted someone to forge or alter an instrument, resulting in the loss. If the bank can show this, and can also show that it acted in good faith in the transaction, the employer is precluded from asserting the forgery against the bank. However, as with section 47-3405, the employer then has the right to prove the bank was negligent in handling the transaction, and if it can make this showing, the bank must share the loss to the extent its negligence substantially contributed thereto. Each of these steps in section 47-3406 presents a question of fact, ordinarily to be resolved by the fact finder.

CONCLUSION
¶ 18 We remand this matter for further proceedings consistent with this decision. Because we are reversing the trial court, we must also vacate the award of attorneys' fees to San Tan. However, the trial court may again award fees once the merits of the case have been resolved. See Swanson v. Safeco Title Ins. Co., 186 Ariz. 637, 640, 925 P.2d 1354, 1357 (App.1995) (vacating award of attorneys' fees when reversing grant of summary judgment, pending identification of prevailing party following conclusion of the case on the merits). We also deny Wells Fargo's request for attorneys' fees on appeal, deferring this request to the trial court's discretion pending resolution of the matter on the merits.
CONCURRING: JON W. THOMPSON, Presiding Judge, and WILLIAM F. GARBARINO, Judge.
NOTES
[1]  San Tan is correct to abandon its assertion made at the trial court that Berthot is the controlling precedent. Not only is there nothing in Berthot that precludes a depositary or payor bank from invoking sections 47-3405 or 47-3406 against a conversion claim under section 47-3420, but the "due care" defense discussed in Berthot and argued by San Tan to the trial court has not been in the conversion statute for several years. That statute, numbered section 47-3419 at the time Berthot was decided, was substantially amended in 1993, see 1993 Ariz. Sess. Laws ch. 108, § 6, and the due care defense of section 47-3419(C) was not carried forward into the new statute, section 47-3420. Berthot's continuing vitality lies principally in its holding that statutory conversion subsumes and replaces the previous remedy of negligence.
[2]  Wells Fargo was also apparently misled into relying on City of Phoenix because the case discussed good faith in the context of a statute that, in 1985, was numbered section 47-3405. However, in 1993 several statutes were renumbered, and the statute at issue in City of Phoenix, which is known as the fictitious payee statute, was assigned and now bears the section number 47-3404. See 1993 Ariz. Sess. Laws Ch. 108, § 6. Thus, Wells Fargo's reliance on such language from the case as "negligence [of a bank] is irrelevant to a § 47-3405 defense asserted by a depositary bank" is misplaced.
[3]  The Minnesota Court of Appeals recently held that Article 3 good faith as used in the Minnesota counterpart to our section 47-3405 requires a subjective test for both prongs of the definition and is presumed until the contrary is proven. Halla v. Norwest Bank Minnesota, N.A., 601 N.W.2d 449, 452 (Minn.App.1999). We reject this interpretation because it conflicts with the U.C.C.'s framers intention in adding the second prong to the definition. See Prefatory Note, U.C.C. Revised Article 3, in 1990 Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Annual Conference Meeting in its Ninety-ninth Year 427 (1998) (describing added prong as "objective standard" applicable to performance of all duties under Articles 3 and 4). In addition, we fail to understand how the phrase "reasonable commercial standards of fair dealing" could be measured in any fashion but by an objective standard.
[4]  Section 47-3406 also has a broader scope than section 47-3405 in that it deals with the negligence of any payee, not just an employer, and extends to forgery or alteration of an instrument by anyone, not just an employee.


537 U.S. 1076
JENNETTEv.UNITED STATES.
No. 02-7217.
Supreme Court of United States.
December 9, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

2
C. A.2d Cir. Certiorari denied. Reported below: 295 F.3d 290.


192 F.Supp.2d 27 (2001)
Barbara Ann CHILLE, a/k/a Barbara Ann McMillin, Plaintiff,
v.
UNITED AIRLINES, Defendant.
No. 00-CV-6571L.
United States District Court, W.D. New York.
September 17, 2001.
*28 Donna Marianetti, Van Henri White, Rochester, NY, for Plaintiff.
Eric Rosenfeld, Laurie Robinson, New York City, for Defendant.

DECISION AND ORDER
LARIMER, Chief Judge.

INTRODUCTION
Plaintiff, Barbara Ann Chille, a former employee of United Airlines ("United"), commenced this action alleging that United discriminated against her in violation of the Americans with Disabilities Act ("ADA" or "the Act") and the New York Human Rights Law.[1] Defendant has moved to dismiss the complaint pursuant to FED. R. CIV. P. 8(a)(2) and 12(b)(6). Defendant's motion is granted, and the complaint is dismissed. Plaintiff, however, is granted leave to replead.

FACTUAL BACKGROUND
Plaintiff began her employment with United in September 1997. Her last position with the company was as a "Customer Service Representative, ticket counter, ramp and gate" at the Rochester International Airport. Complaint, ¶ 14. At some point during her employment, plaintiff suffered a work-related case of frostbite. Plaintiff alleges that the frostbite created a condition that affected the circulation in her hands. Because of that, she claims that her hands cannot be exposed to temperatures below 50 degrees Fahrenheit.
In September of 1999, plaintiff notified her immediate supervisor of her condition, and requested that the company accommodate her by changing her work area or by providing her with special insulated gloves or gloves that could accommodate a handwarming device.[2] Plaintiff's supervisor relocated her to the baggage handling area. Because of the temperatures in that area, however, this change was not satisfactory to plaintiff. Plaintiff then attempted to change her position with United. She applied for a flight attendant position, but she was not selected.
*29 Plaintiff then sought employment elsewhere, and was offered a flight attendant position with another airline. Plaintiff began training with her new employer as a flight attendant but apparently had a change of heart and during that training period, she elected to "return" to United. Plaintiff alleges that she was using vacation time while training for her new job but, apparently, United viewed it differently. United deemed her activities and separation as a resignation and refused to allow her to continue her employment after she had begun training for a position with another airline. Plaintiff now claims that United's actions were in violation of the ADA. She filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that United discriminated against her because of her disability. The EEOC dismissed plaintiff's claim, and issued a right-to-sue letter. Plaintiff then brought this action.

DISCUSSION
In light of plaintiff's election to seek other employment, it is difficult to see how plaintiff can establish any nexus between United's adverse employment action and plaintiff's alleged disability. This may well prove to be an insurmountable barrier to plaintiff. The motion before me now is, however, a motion to dismiss and not a summary judgment motion. Therefore, I must give deference to the allegations contained in a properly pleaded complaint.
In deciding a motion to dismiss, the Court must accept "all of the allegations in the complaint as true and draw[] all reasonable inferences in favor of plaintiffs." In re Scholastic Corp. Securities Litigation, 252 F.3d 63, 69 (2d Cir.2001)(citing Press v. Chem. Inv. Servs. Corp., 166 F.3d 529, 534 (2d Cir.1999)). "[D]ismissal is proper `only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Id. (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). The question is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995)(quoting Scheuer v. Rhodes, 416 U.S. 232, 235-236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). "Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000)(quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998)).
Even under this favorable standard, however, the complaint must be dismissed for failure to adequately plead the requisite elements of an ADA claim. See FED. R. CIV. P. 8(a)(2); 12(b)(6). To state a claim under the ADA, it is elemental that plaintiff must allege that she suffers from a "disability" as defined by the Act. Not every limitation or impairment constitutes a "disability" for purposes of the ADA statute. In pertinent part, the ADA defines "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of such an individual." 42 U.S.C. § 12102(2). I find the complaint to be woefully inadequate in this regard. Plaintiff has failed to adequately allege that her frostbite and subsequent condition results in a limitation of a "major life activity" as defined by the Act. The regulations implementing the ADA set forth a non-exhaustive list of such major life activities, which include: "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."[3]*30 29 C.F.R. § 130.2(i). Plaintiff has failed to set forth with requisite specificity the "major life activity" that has been substantially limited by the effects of frostbite.
If plaintiff intends to allege that the major life activity of working is impacted, she must properly plead such a claim. She must plead a "substantial" impairment to her working ability.
A substantial impairment to the major life activity of working requires more than merely encountering problems with one particular job. A person will be considered to be "substantially limited" in the major life activity of working if she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). Thus, an individual who is unable to perform only a single job will not be considered disabled under the Act. See, e.g., Murphy v. United Parcel Service, Inc., 527 U.S. 516, 524-525, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999) (claimant who was only able to perform the job of mechanic but who was able to drive a commercial vehicle is not unable to perform a class of jobs); Muller v. Costello, 187 F.3d 298, 313 (2d Cir.1999)(claimant who was only unable to perform job of a corrections officer is not disabled under the Act).
In this case, plaintiff's pleading is so deficient as to require dismissal. Plaintiff must allege "at a minimum" that she is "unable to work in a broad class of jobs." Sutton v. United Air Lines, 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Merely alleging that plaintiff's hands cannot be exposed to temperatures below 50 degrees Fahrenheit does not constitute an adequate pleading that plaintiff's work activity has been substantially impaired.
In light of the nature of plaintiff's alleged infirmity and her own activities in seeking other employment, I have grave doubts as to the likely success of plaintiff's claim. Prudence dictates, however, that plaintiff should be given leave to replead, if she can do so consistent with the requirements of FED. R. CIV. P. 11.[4]See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir.1995)(Generally, when a court dismisses a complaint because it does not comply with Rule 8, the court should grant plaintiff leave to file an amended complaint.); Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir.1991)("As a matter of procedure, when a complaint is dismissed pursuant to Rule 12(b)(6) and the plaintiff requests permission to file an amended complaint, that request should ordinarily be granted.").

CONCLUSION
Defendant's motion to dismiss (Dkt.# 4) is granted. Plaintiff is granted leave to *31 file an amended complaint within twenty (20) days of entry of this Decision and Order.
IT IS SO ORDERED.
NOTES
[1]  Although disability claims under the New York Human Rights Law ("NYHRL") are analyzed in a similar manner to claims under the ADA, the NYHRL defines "disability" "more broadly than does the ADA." Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 154 (2d Cir.1998). Defendant's motion focuses almost entirely on the sufficiency of plaintiff's complaint under the ADA. Thus, although plaintiff must still properly plead her claim under the NYHRL, this decision will not address the adequacy of her state law claim.
[2]  The complaint indicates that United provided gloves that were sized to fit men, and thus, were too large to be effective. See Complaint, ¶ 18. It is unclear whether United provided plaintiff with special gloves that were ill fitting and, thus, ineffective, or whether gloves issued as standard equipment to all employees were too large to relieve plaintiff's discomfort. In any event, plaintiff alleges she was not provided with equipment that could have accommodated her condition.
[3]  The Second Circuit has determined that EEOC regulations are entitled to "`great deference' in interpreting the ADA." Muller v. Costello, 187 F.3d 298, 312 (2d Cir.1999) (citation omitted).
[4]  The parties have labored to some degree as to whether plaintiff can overcome the pleading defects articulated above by alleging that she suffers from Raynaud's Phenomenon, a blood circulation disorder. Clearly, simply putting a name to plaintiff's alleged medical condition will not cure these pleading deficiencies, since the relevant inquiry under the ADA focuses on the actual limitations caused by a claimant's impairments and the effect of these impairments on a claimant's major life activities. Defendant has interpreted plaintiff's reference to Raynaud's Phenomenon as an attempt to introduce a new claim that was not raised in her initial EEOC charge. Based on the current record before me, I cannot at this point say that plaintiff's claim of Raynaud's phenomenon is unrelated to her initial claim of complications due to frostbite.


811 F.2d 1505Unpublished 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.Lanny Dale ROBERTSON, and Lucy Robertson, Appellants,v.James A. THEVENIR, and Dumont Trucking Company, acorporation, Appellees.
No. 85-1921.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 12, 1986.Decided Feb. 4, 1987.

Before WIDENER and SPROUSE, Circuit Judges, and BOYLE, District Judge for the Eastern District of North Carolina, sitting by designation.
Kenneth H. Fisher (Fisher & Young on brief), for appellants.
Cheryl A. Eifert (John E. Jenkins, Jr.;    Jenkins, Fenstermaker, Krieger, Kayes & Farrell on brief), for appellees.
PER CURIAM:

1
The plaintiffs, Lanny Dale Robertson and his wife, Lucy Robertson, appeal from an adverse jury verdict on the issue of negligence in this automobile accident case.

2
On June 22, 1982, Lanny Dale Robertson was driving a truck north on U.S. Route 52 near its intersection with West Virginia Route 37 at Fort Gay, West Virginia.  Following the Robertson truck was a tractor-trailer owned by the defendant Dumont Trucking Company and driven by its employee, the defendant James A. Thevenir.  A rear end collision occurred between these two trucks at the intersection.

3
The evidence was in sharp conflict.  Mr. Robertson claimed that he signaled and carefully began a right turn.  Mr. Thevenir, in contrast, testified that the Robertson truck was dead in the road without lights, signal or warning before the turn.

4
Separate suits were originally brought by both Mr. and Mrs. Robertson in state court;  Mr. Robertson suing for his personal injuries and Mrs. Robertson suing for loss of consortium.  The defendants removed these actions based on the district court's diversity subject matter jurisdiction and consolidated both plaintiffs' claims for trial.

5
At the conclusion of the trial, the district judge presented the jury with special verdict interrogatories addressing the issues of negligence, contributory negligence and damages.

6
In arriving at their verdict, the jury answered the issue of negligence against the plaintiffs, finding that Mr. Robertson was negligent, that his negligence was the proximate cause of the accident, and that 100% of the negligence should be attributed to Mr. Robertson and 0% attributed to the defendant Thevenir.

7
The plaintiffs moved for a new trial contending:  first, that the trial judge improperly instructed the jury regarding the proper measure of damages;  and, second, that the jury's verdict was contrary to the law and the evidence and should be set aside.

8
The district judge denied these motions and entered judgment in accordance with the jury's verdict.  It is from the denial of these motions and the verdict that the plaintiffs appeal.  We now affirm the district court.

9
The plaintiffs go to considerable effort in this appeal to argue that there was error in the judge's instructions as to the measure of damages for personal injuries to Mr. Robertson.  Mr. Robertson claimed that his injuries aggravated a pre-existing condition and that the instructions allowed the jury to improperly apportion the damage because of the pre-existing injury.  While the court's charge appears to be a correct statement of the West Virginia law on the damage issue, we are not obligated to address this contention on appeal.  The verdict of the jury against the plaintiffs on the issue of negligence is sufficient to render moot the arguments by the plaintiffs regarding the instructions on damage.

10
It is manifest from the record and briefs in this case that there was conflicting evidence for the jury to consider on the issue of liability.  The jury heard that evidence, had the opportunity to weigh the evidence and judge the credibility of the witnesses, and did so, reaching a verdict against the plaintiffs.  The trial judge did not see fit to disturb this verdict on motion for a new trial and we will not disturb it here on appeal.   Wilhelm v. Blue Bell, Inc., 773 F.2d 1429 (4th Cir., 1985), cert. denied, --- U.S. ----, 106 S.Ct. 1199.  The judgment of the district court is AFFIRMED.

11
AFFIRMED.


687 P.2d 587 (1984)
107 Idaho 197
Raymond P. FISCHER, and Jacqueline Fischer, husband and wife, Plaintiffs-Appellants,
v.
SEARS, ROEBUCK AND CO., a New York corporation, Defendant-Respondent.
No. 14648.
Court of Appeals of Idaho.
August 31, 1984.
*588 Pat W. Arney, Coeur d'Alene, George R. Nethercutt, Jr., Spokane, Wash., for plaintiffs-appellants.
Linda L. Holdeman, of Hawley, Troxell, Ennis & Hawley, Boise, for defendant-respondent.
WALTERS, Chief Judge.
Raymond Fischer appeals from an order of the district court dismissing his claim for damages allegedly caused by a discharge from employment because of his age. Construing Idaho's former age discrimination act, Title 44, Chapter 16 of the Idaho Code (now repealed)  upon which Fischer's claim was based  the district court held it did not have original jurisdiction to entertain the claim. On review, we conclude that the district court was correct.
Idaho's age discrimination act was adopted in 1965 and repealed in 1982. It was in force, however, at the time Fischer's alleged cause of action arose. The act provided as follows:
44-1601. The opportunity for an individual to employment for which he is qualified without discrimination because of age is hereby recognized as and declared to be a civil right which shall be enforceable as set forth in this act.
44-1602. It shall be an unlawful employment practice, except where based upon a bona fide occupational qualification, or retirement or pension plan, or upon applicable security regulations established by the United States or the state of Idaho, and except where the employee is 60 years of age or older, for any employer because of the age of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required.
44-1603. Any individual claiming to be aggrieved by an alleged unlawful employment practice may make, sign and file with the director of the department of labor and industrial services, hereinafter referred to as the director, a verified complaint, in writing, which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed such an unlawful employment practice, and which shall set forth the particulars thereof and contain such other information as may be required by the director. The director upon his own initiative may, in like manner, make, sign and file such complaint.
Any employer whose employee[s], or some of them, hinder or threaten to hinder compliance with the provisions of this act may file with the director a verified complaint, asking for assistance by conciliation or other remedial action and, during such period of conciliation or other remedial action, no hearings, orders or other actions shall be taken by the director against such employer.
The director shall provide for appropriate hearings on complaints made pursuant to this act, upon due notice, and shall make such orders as he deems appropriate to enforce the provisions of this act.
44-1604. The director may make such rules or regulations as he deems appropriate to effectuate the provisions of, and *589 to establish the procedures for hearings held pursuant to this act.
44-1605. The complainant or the director may secure enforcement of the order of the director or other appropriate relief in the district court of the county where the employer resides or has his principal place of business. Such proceeding shall be initiated by the filing of a complaint in such court, together with a transcript of the record of the hearing before the director, if any, and issuance and service upon the employer of a summons and a copy of said complaint as in proceedings in civil actions. The court shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter, upon the trial of the action, or, at his discretion, upon the pleadings, testimony and proceedings set forth in such transcript, an order or decree enforcing, modifying and enforcing as so modified, or setting aside, in whole or in part, the order of the director. An appeal may be taken from any order of the district court as in other civil actions.
44-1606. Any person who shall wilfully resist, prevent, impede or interfere with the director or his agents in the performance of duties pursuant to this act, or shall wilfully violate an order of the director, shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to pay a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500), or to undergo imprisonment not exceeding thirty (30) days, or both, in the discretion of the court, but procedure for the review of an order shall not be deemed to be such willful conduct.
Raymond Fischer had been employed by Sears, Roebuck & Co. for approximately eighteen years when he was discharged from his position as manager of the Sears department store in Coeur d'Alene, Idaho on October 30, 1979. Believing that he had been the victim of discrimination because of his age (he was fifty years old), Fischer filed a complaint with the state Department of Labor and Industrial Services approximately eighteen months after his discharge from employment. However, exercising the rule-making power granted by I.C. § 44-1604, the director of the department had established a rule requiring that such complaints be filed within six months of the date the alleged discrimination occurred. Fischer's complaint before the department was dismissed because of its untimeliness. The department's order of dismissal stated it was "without prejudice, to bring a separate action against the employer directly for the alleged age discrimination, pursuant to Section 44-1605, Idaho Code."
Thereafter, in a separate action brought in district court against Sears, Fischer alleged unlawful discrimination on the basis of age in violation of Title 44, Chapter 16 of the Idaho Code, in addition to other claims relating to his discharge. Pursuant to I.R.C.P. 12(b), Sears moved to dismiss the age discrimination claim, arguing that the district court did not have subject-matter jurisdiction. The district court granted the motion, characterizing it as one for partial summary judgment. After certification of the order of dismissal under I.R.C.P. 54(b), Fischer brought this appeal.
The duty not to discharge an employee because of age is solely a creature of statute; no such duty existed at common law which would allow prosecution of a claim for wrongful discharge from employment because of age. See also Johnson v. United States Steel Corp., 348 Mass. 168, 202 N.E.2d 816, 818 (1964); Bonham v. Dresser Industries, Inc., 569 F.2d 187, 195 (3d Cir.1977); Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 348 N.E.2d 144, 147 (1976). Thus, Idaho's age discrimination act and the procedures established therein provided the exclusive remedy for vindication of the right to be free from discrimination based on age. Until the repeal of the age discrimination act, the Department of Labor and Industrial Services was vested with the primary jurisdiction to determine age discrimination complaints. Under I.C. § 44-1604 the district court was vested only with secondary jurisdiction to review, *590 enforce, modify or set aside the department's orders.
Fischer argues that the reference in I.C. § 44-1605 to "other appropriate relief" shows that the district court has primary subject-matter jurisdiction to hear an age discrimination claim. However, the full context of that phrase is, "[t]he complainant or the director may seek enforcement of the order of the director or other appropriate relief... ." Read in context, the phrase appears simply to allow for the possibility that a claimant aggrieved by an adverse order of the director might seek judicial review of that order. That it does not confer primary subject-matter jurisdiction is made clear by the remainder of § 44-1605, which defines the remedial powers of the court in terms of enforcing, modifying or setting aside an order of the director.
Fischer argues that the district court was granted jurisdiction over his claim by virtue of the order of the director of the department of labor, which, as noted, dismissed Fischer's claim without prejudice to instituting a separate action directly against the employer. We are not persuaded by Fischer's argument. The Legislature vested exclusive jurisdiction in the department, not the courts, for age discrimination claims. The department alone had the power to adjudicate such claims. When authority is delegated to an administrative body such authority is primary and exclusive in the absence of a clearly manifested statutory expression to the contrary. Washington Public Power Supply System v. Pacific Northwest Power Co., 213 F. Supp. 404 (D.C.Or. 1962); Chicago, R.I. & P.R. Co. v. Iowa State Highway Commission, 182 N.W.2d 160 (Iowa 1970); Central School Dist. No. 12, Middle Island v. Middle Island Teachers Assn., 81 Misc.2d 670, 366 N.Y.S.2d 562 (1975). Whether a particular administrative proceeding is primary or exclusive depends on the statutory scheme. Oliver v. Iowa Power & Light Co., 183 N.W.2d 687 (Iowa 1971).
The jurisdiction of an administrative agency is exclusive when the remedy it is empowered to grant is the only available relief for a given situation. DuBois v. City of College Park, 280 Md. 525, 375 A.2d 1098 (1977); Naylor v. Harkins, 11 N.J. 435, 94 A.2d 825 (1953). Finally, where an administrative agency has exclusive original jurisdiction of particular matters, such jurisdiction precludes an original action in court in regard to those matters. Everitt v. Lovitt, 192 So.2d 422 (Miss. 1966); Central School Dist. No. 12, supra; Ziccardi v. Commonwealth, Dept. of General Services, Bureau of Bldgs. and Grounds, 50 Pa.Cmwlth. 367, 413 A.2d 9, (1980). Under Idaho's statutory scheme for determining age discrimination claims, no explicit authority was given to the director of the department of labor by the Legislature to further delegate original jurisdiction to the courts in such cases.[1] We hold that the district court correctly ruled that it had no subject-matter jurisdiction over Fischer's claim.
The order dismissing Fischer's claim is affirmed. Costs to respondent, Sears, Roebuck & Co.
BURNETT and SWANSTROM, JJ., concur.
NOTES
[1]  Compare I.C. § 67-5908. The present statutory scheme in Idaho for prosecution of claims of discrimination in employment, based on race, color, religion, sex, national origin or age, allows the complainant to pursue administrative remedies through the Commission on Human Rights or, alternatively, to file an action in district court.


                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 22 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

CLARK FRATUS; KARLA FRATUS,                      No.   16-16985

              Plaintiffs-Appellants,             D.C. No. 3:14-cv-05533-MEJ

 v.
                                                 MEMORANDUM*
COUNTY OF CONTRA COSTA;
CATHERINE KUTSURIS; JASON
CRAPO, Building Official; MICHAEL
SILVA; GANO THOMAS, Building
Official; ROBERT ERICKSON, Building
Inspector; ARUNA BHAT, Deputy
Director; KEITH DENISON,

              Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Northern District of California
                  Maria-Elena James, Magistrate Judge, Presiding

                     Argued and Submitted December 7, 2017
                            San Francisco, California

Before: SCHROEDER and BEA, Circuit Judges, and ELLIS,** District Judge.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Sara Lee Ellis, United States District Judge for the
Northern District of Illinois, sitting by designation.
      This appeal involves a lengthy history of administrative and legal battles

stemming from Contra Costa County’s enforcement of its zoning and building

code to conclude that the second living units on the properties of Clark and Karla

Fratus (“Plaintiffs”) were unlawful. Plaintiffs were eventually successful in state

court in overturning the administrative decision that found their properties

unlawful, and they then filed an action in federal court claiming violation of federal

and state laws in connection with the original administrative rulings. This court

affirmed the district court’s dismissal of that action at summary judgment. See

Fratus v. Contra Costa Cty. Bd. of Supervisors, 599 F. App’x 707 (9th Cir. 2015)

(Fratus I).

      Three days before the district court entered judgment in the first federal

action, the County denied the Plaintiffs’ application for permits for their second

units. The Plaintiffs subsequently brought a second action, alleging federal law

claims of First Amendment retaliation and violations of substantive due process

and equal protection as well as several state law claims. Plaintiffs now appeal the

district court’s dismissal of that action at summary judgment. The district court

granted the County summary judgment with respect to the substantive due process

and equal protection claims on the ground that they were barred by res judicata,

because the Plaintiffs could have brought this action before the judgment was

                                          2
entered in the first case. The district court granted summary judgment to the

County with respect to the retaliation claim for lack of evidence. After granting

summary judgment on all of the federal law claims, the district court declined to

exercise supplemental jurisdiction over the state law claims.

      We review de novo the district court’s decision to grant summary judgment.

Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992). We also review

de novo matters of res judicata. Id. Finding no error, we affirm.

      Plaintiffs argue res judicata does not apply because this complaint is based

on different events, including the denial of a permit and a loan as well as the failure

to reverse penalties on a delinquent tax bill. The County’s actions, however, were

based upon the same interpretation of the relevant code provisions and applied to

the same properties. The nucleus of facts is the same; therefore, the Plaintiffs’

claims based on those facts are barred by res judicata. See ProShipLine Inc. v.

Aspen Infrastructures Ltd., 609 F.3d 960, 968 (9th Cir. 2010) (noting that, among

the factors we examine in determining whether there is an “identity of claims” for

res judicata to apply, “[r]eliance on the transactional nucleus element is especially

appropriate because the element is outcome determinative”) (citations and internal

quotation marks omitted).

                                           3
      The Plaintiffs further contend that their challenges to the County’s conduct

could not have been brought in the first action because it came later than the

conduct in the first action. The relevant standard is whether the claims “were

raised or could have been raised in the prior action.” Owens v. Kaiser Found.

Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (quoting W. Radio Servs. Co.

v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997)). A review of the record shows

that they either were or could have been raised. The Plaintiffs raised their failure-

to-train claim in Fratus I. The Plaintiffs also disputed in Fratus I the County’s

listing of their properties as having only one living space each, which was the basis

for the bank’s loan denial in this case. The Plaintiffs could have raised in Fratus I

the County’s failure to reverse penalties, which occurred as early as June 2012,

several months before judgment was entered in Fratus I. Finally, the district court

did not enter judgment in Fratus I until three days after the challenged permit

denial, and the court actually held a hearing in Fratus I two days after the denial.

The denial could have been raised as well.

      Accordingly, the district court correctly ruled that the Plaintiffs’ federal law

claims are barred by res judicata. The court did not abuse its discretion in

declining to exercise supplemental jurisdiction over the state law claims.

                                           4
     Plaintiffs unopposed motion for judicial notice is GRANTED. The

judgment of the District Court is AFFIRMED.

                                     5


284 A.2d 72 (1971)
Barbara McBride BERBERIAN,
v.
Aram K. BERBERIAN.
No. 1349-Appeal.
Supreme Court of Rhode Island.
November 30, 1971.
*73 >Leo M. Cooney, Providence, for petitioner.
Cohen, Chaika & Berberian, Providence, for respondent.

OPINION
ROBERTS, Chief Justice.
This is a petition for a divorce from bed and board on the grounds of gross misbehavior and extreme cruelty. The petitioner sought the customary interlocutory relief, including the exclusive use of the marital domicile with the respondent being allowed "visitation rights and the right of occupancy" [sic]. After hearing on the motion for such interlocutory relief, the court denied the petitioner's prayer for the exclusive use of the home but enjoined the respondent "from molesting and assaulting the petitioner at all times." From that interlocutory decree the respondent appealed to this court, urging that enjoining him from molesting and assaulting the petitioner was contrary to the law and the evidence.
However, petitioner argues that an interlocutory decree of divorce is not a decree containing elements of finality and, therefore, is not appealable. In so arguing, she relies on Budlong v. Budlong, R.I., 142 A. 537 (1928). In that case a trial court had issued a decree temporarily restraining the respondent wife from going upon the premises of the petitioner husband and from interfering with or annoying the petitioner. This court held that the appeal should be dismissed, as no appeal lies from such an interlocutory decree in a divorce proceeding. It does not appear that this case has ever been overruled or modified, and, therefore, respondent's appeal should be denied and dismissed.
In Redfern v. Church of the Mediator in Providence, 101 R.I. 182, 221 A.2d 453 (1966), we noted that generally this court will not review interlocutory orders or decrees unless the case falls within either of the exceptions pursuant to which we *74 will review notwithstanding that the decree appealed from is not final. We there noted that one of the exceptions was created by the Legislature and allows an appeal from an interlocutory decree which grants or continues an injunction or appoints a receiver or orders the sale of real or personal property. This is provided for in G.L. 1956 (1969 Reenactment) § 9-24-7. The other exception is of decisional origin and under it we will review a decree which, although in a strict sense interlocutory, has such an element of finality that we will act before the case has finally terminated in order to prevent possible injurious consequences. This is the doctrine originally stated in McAuslan v. McAuslan, 34 R.I. 462, 83 A. 837 (1912).
In Mendes v. Mendes, 103 R.I. 734, 241 A.2d 297 (1968), we held that the rule stated in McAuslan, supra, is without application in the case of interlocutory decrees entered in a proceeding for divorce absent some unusual and compelling circumstance. In that case we said at 735, 241 A.2d at 298: "Divorce, although it follows the course of equity, does not recognize the exception which obtains generally in equity matters pursuant to which a decree or order, although interlocutory in the strict sense, is deemed to have such elements of finality as to be appealable when by reason of possible injurious consequences an immediate review is necessary."
We there noted that the practice in divorce differs from that in equity because of a concern that the rights of the parties might be seriously affected and the final determination of the proceedings unduly delayed were we to allow appeals from the numerous interlocutory decrees, orders and modifications thereof which are frequently entered in a single divorce proceeding. In short, the rule in McAuslan is not applied in divorce proceedings because of the evils that accompany piecemeal review of interlocutory orders entered in the course of those proceedings.
We do not subscribe to the argument that the provisions of § 9-24-7 were intended to provide for immediate review of interlocutory decrees and orders entered in divorce proceedings and this for the same reason that persuades us that the rule in McAuslan should not be applied. It is well settled that in the construction of statutes the courts will never impute to the Legislature an intent to enact legislation that serves no useful purpose or that defeats the ends of justice. Obviously, to hold that § 9-24-7 was intended to provide for piecemeal review of interlocutory decrees and orders in a divorce proceeding would be to impute to the Legislature an intent to create chaotic conditions in the processing of petitions for divorce. While it is to be conceded that the state has a direct interest in the preservation of the marital relationship, we cannot agree that the preservation of such relationship would be promoted by the delay and confusion that would result from a piecemeal review of the interlocutory orders entered in a divorce proceeding. It is our opinion, then, that the decree of the Family Court in the instant case, being concededly interlocutory, is not appealable.
There is no merit, in our opinion, in the respondent's contention that art. I, sec. 23, of the constitution of this state secures to him the right to commit "justifiable" assault upon the petitioner. Article I, sec. 23, provides that the enumeration of the rights of the people set out in art. I of our constitution "* * * shall not be construed to impair or deny others retained by the people." That the framers intended that this provision of the constitution was intended to preserve to him the right to assault his spouse is utterly without merit. Whatever might have been the common-law view of the right of a husband to chastise his wife, the modern view is clearly to the contrary and inhibits the use of physical force or violence upon the person of the wife. State v. Bowen, 209 S.C. 311, 40 S.E.2d 39 (1946); Ussery v. Ussery, 259 Ala. 194, 66 So.2d 182 (1953).
The respondent's appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the Family Court for further proceedings.


66 F.3d 334
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.James W. BRAMMER, Petitioner-Appellant,v.SUPERIOR COURT OF the STATE OF CALIFORNIA FOR the COUNTY OFLOS ANGELES;  People of the State of California,Respondents-Appellees.
No. 94-55362.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 5, 1995.*Decided Sept. 8, 1995.

Before:  GOODWIN, WIGGINS, and O'SCANNLAIN, Circuit Judges.

1
MEMORANDUM**

2
James W. Brammer, a California state prisoner, appeals pro se the district court's dismissal of his petition for writ of mandamus.  He contends the district court erred when it refused to file his action without prepayment of fees.  We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

3
On February 15, 1994, the district court lodged Brammer's petition for writ of mandamus.  Brammer's pro se mandamus petition alleged that appellate counsel failed to raise issues which Brammer wanted argued;  the prosecution withheld exculpatory evidence;  and the states court denied Brammer's requests for transcripts.  Because Brammer's petition for mandamus included a challenge to his conviction, the district court denied Brammer's motion to file without prepayment of fees and ordered the clerk to send Brammer the court's habeas corpus form.  On appeal, Brammer disavows any challenge to his conviction.  Instead, he petitions for mandamus solely to obtain transcripts of pretrial proceedings which he alleges the state courts have denied him but that he needs to prepare a state habeas petition.

4
Although a federal court may grant a writ of habeas corpus when a state prisoner has been denied transcripts needed for state habeas proceedings, Long v. District Court of Iowa, 385 U.S. 192, 194-95 (1966), a federal court lacks jurisdiction to issue a writ of mandamus to a state court, Demos v. United States Dist. Court for the E. Dist. of Wash., 925 F.2d 1160, 1161 (9th Cir.), cert. denied, 498 U.S. 1123 (1991).  Accordingly, we affirm the district court's dismissal of Brammer's mandamus petition.  See Dunne v. Henman, 875 F.2d 244, 247 (9th Cir.1989) (appellate court can affirm on any basis supported by the record).

5
AFFIRMED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed.R.App.P. 34(a);  9th Cir.R. 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3