360 N.W.2d 633 (1985)
Dale E. TROUPE, Respondent, and
Northwestern National Insurance Company, intervenor, Respondent,
v.
SUNRISE ELECTRIC, INC., defendant and third party plaintiff, Respondent,
v.
ORRIN THOMPSON HOMES, INC., a DIVISION OF U.S. HOMES CORPORATION, third party defendant, Appellant.
No. C9-84-930.
Court of Appeals of Minnesota.
January 15, 1985.
*634 Mitchell R. Spector, Abrams & Spector, P.A., Minneapolis, for Dale E. Troupe.
Louis R. Tilton, Pustorino, Pederson, Tilton & Parrington, Minneapolis, for Northwestern Nat. Ins. Co.
Mark N. Stageberg, Craig D. Peterson, Lommen, Nelson, Sullivan & Cole, P.A., Minneapolis, for Sunrise Elec., Inc.
Eugene J. Flick, Brian N. Johnson, Jardine, Logan & O'Brien, St. Paul, for Orrin Thompson Homes, Inc., a division of U.S. Homes Corp.
Heard, considered and decided by POPOVICH, C.J., and PARKER and SEDGWICK, JJ.

OPINION
POPOVICH, Chief Judge.
This is a personal injury action for a work-related injury on a residential construction site. Respondent Troupe was permanently injured when he backed into an exposed live electrical wire while pouring a cement basement in one of appellant's houses.
Troupe alleged his injuries were due to the negligence of the project's electrical subcontractor, respondent Sunrise Electric, Inc. Sunrise alleged negligence by the project's general contractor, appellant Orrin Thompson Homes, Inc. Sunrise sought contribution from appellant for $42,000 in worker's compensation benefits paid to Troupe.
The jury awarded Troupe $65,000 in damages and apportioned fault as follows: Troupe 0%, Sunrise Electric 20%, Orrin Thompson 80%. Sunrise paid Troupe the full damage award. Orrin Thompson contributed $42,000 to Sunrise but recouped only $27,741.01 under its worker's compensation subrogation right.
Appellant moved for judgment n.o.v. and a new trial claiming (1) the evidence did not support the verdict, (2) improper final argument by Sunrise's attorney in connection with the special verdict form, and (3) that improper contribution forced appellant to pay $14,500 more than its worker's compensation liability. The trial court denied the motion, and Orrin Thompson appealed. We affirm.

FACTS
Dale Troupe was a cement finisher for Orrin Thompson Homes, Inc. At the time of the accident, Troupe was pouring a basement *635 in one of approximately 250 homes being constructed by Orrin Thompson in Maple Grove, Minnesota.
Orrin Thompson was the general contractor on the project. Some construction work was done directly by Orrin Thompson employees while other work was subcontracted. Electrical work for the project was subcontracted to Sunrise Electric, Inc. Orrin Thompson's area supervisor, Wayne Enos, was responsible for coordinating and scheduling all work on the project. Electrical work was completed in two phases: "rough-in" and "finish" work. Dates for completion of both rough-in and finish electrical work were set by Enos.
Rough-in electrical work was performed by Sunrise at the accident site on March 6 and 7, 1980. Consistent with their usual practice, all wires and receptacles were placed, and a bathroom circuit was installed and energized through one panel circuit. Wires were left coiled along the basement walls with exposed, uncapped ends.
Orrin Thompson scheduled Sunrise to complete the finish electrical work at the accident site on May 16 and 17, 1980. Finish work was completed in the upper portion of the house, but no work was done in the basement due to standing mud and water. Nonetheless, all remaining circuit breakers were installed and the lines energized. Sunrise did not, however, tape or cap the exposed, unconnected basement wires.
Sunrise employees were routinely instructed that breakers should be de-energized when not in use and that if circuit breakers were installed, they should be taped in the "off" position. Neither the foreman nor the electrical workers assigned to the accident site could remember if the breakers had been taped in that particular house. When Enos checked the site's circuit breaker panel after the accident, all circuits were untaped and in the "on" position.
Construction continued on the home as the floor was drying. Whenever a subcontractor asked why there was no power in a house, Enos told them to check the circuit breakers. Most of Enos' foremen would turn circuits on and off themselves.
Troupe and his co-workers poured the basement at the accident site on June 12, 1980. As he poured cement, Troupe's shoulder touched the bare ends of a wire and he received a shock. As a result of the shock, he was permanently injured.

ISSUES
1. Was there sufficient evidence to support the jury's verdict?
2. Were closing comments made by counsel for Sunrise Electric improper?
3. Was the trial court's application of Minn.Stat. § 176.061, subd. 6(c) (1982) incorrect or in violation of state and federal constitutions?

ANALYSIS

1. Sufficiency of evidence.

Orrin Thompson claims the evidence introduced at trial was insufficient to support a finding that Orrin Thompson was 80% responsible for Troupe's injuries.
On appeal from a jury verdict, all evidence must be considered "in the light most favorable to the prevailing party," and "the verdict must be sustained unless it is manifestly and palpably contrary to the evidence." Cobb v. Aetna Life Insurance Company, 274 N.W.2d 911, 917 (Minn.1979). This court "need only find sufficient, competent evidence reasonably tending to support and sustain the jury's finding." Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 204, 203 N.W.2d 841, 844 (1973).
Appellant was the coordinator of all the workers on the project. Scheduling was under the control of appellant's area supervisor, Wayne Enos. Enos knew that construction at the accident site was proceeding out of sequence. He knew that Sunrise Electric's finish work was incomplete in the basement. He saw the coiled wires hanging in the basement many times when he went to check on the heater, but *636 he never checked to see if those wires were connected to a live circuit. Enos never warned subcontractors or Orrin Thompson's employees that the accident site house was being built out of the normal sequence. Nor did he warn them that the finish electric work was left partially complete.
The record viewed in the light most favorable to the verdict supports the jury's findings.

2. Counsel's comments.

Appellants claim the trial court erred by permitting Sunrise Electric's attorney to comment upon the legal effect of the jury's answers to the special verdict form during closing argument. Minn.R. Civ.P. 49.01(2) allows counsel to comment upon the effect of the jury's answers to the special verdict. See Christopherson v. Independent School District No. 284, 354 N.W.2d 845, 847-48 (Minn.Ct.App.1984). Our review of the record shows the comments objected to were within the permissible limits of Minn.R.Civ.P. 49.01(2). The trial court did not abuse its discretion by refusing to grant a new trial under these circumstances. See Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 696 (Minn.1980); Patterson v. Donahue, 291 Minn. 285, 287-88, 190 N.W.2d 864, 866 (1971).

3. Workers' compensation reimbursement.

The trial court calculated the amount Troupe was required to reimburse appellant pursuant to Minn.Stat. § 176.061, subd. 6 (1982). Appellant claims the trial court erred because by allocating a portion of Troupe's attorney's fees to appellant, appellant is forced to pay more than its worker's compensation liability. Appellant also claims Minn.Stat. § 176.061, subd. 6 (1982) is unconstitutional under the United States and Minnesota constitutions.
The trial court correctly calculated the amount of reimbursement. An employer's reimbursement under Minn.Stat. § 176.061, subd. 6 is reduced by an allocable share of plaintiff's attorney's fees. See Cronen v. Wegdahl Cooperative Elevator Association, 278 N.W.2d 102, 104-105 (Minn.1979). Minn.Stat. § 176.061, subd. 6(c) (1982) "is designed to require the employer to pay its fair share of the attorney's fee that generated the recovery from the third party." Kordosky v. Conway Fire and Safety, Inc., 304 N.W.2d 616, 621 (Minn.1981); see Cronen, 278 N.W.2d at 104.
We reject appellant's constitutional claims. The Workers' Compensation Act does not violate Minn. Const. art. 1, § 8, which provides that every person is entitled to a certain remedy for all injuries and wrongs. Although the current version of Minn.Stat. § 176.061 is less favorable to employers than in the past, the Act still embraces:
a reciprocal yielding and giving up of rights existing at common law for the new and enlarged rights and remedies given by the compensation act.
Breimhorst v. Beckman, 227 Minn. 409, 429, 35 N.W.2d 719, 732 (1949); see also id. at 434-36, 35 N.W.2d at 735-36.
We also reject appellant's due process argument. Laws enacted by the legislature are presumed valid. See Mathison v. Minneapolis Street Railway Company, 126 Minn. 286, 289, 148 N.W. 71, 73 (1914).
Due process demands only that (1) the act serve to promote a public purpose, (2) it not be an unreasonable, arbitrary or capricious interference, and (3) the means chosen bear a rational relation to the public purpose sought to be served.
Contos v. Herbst, 278 N.W.2d 732, 741 (Minn.); appeal dismissed, 444 U.S. 804, 160 S.Ct. 24, 62 L.Ed.2d 17 (1979). The allocation formula set forth in Minn.Stat. § 176.061, subd. 6(c) is not arbitrary or capricious and is reasonably related to the public purpose of protecting and balancing the rights of employees, employers, and third parties.

DECISION
Sufficient evidence supported the jury's verdict. Comments made by counsel during *637 closing argument were not improper. The trial court correctly calculated the amount of reimbursement under Minn.Stat. § 176.061 (1982). Minn.Stat. § 176.061, subd. 6 is constitutional.
Affirmed.


397 P.2d 235 (1964)
Ray O. BURGE, Petitioner,
v.
Thomas V. TIBOR, Lydia Doering, Vernafern Barnard, constituting the Recount Judges, Precinct #1, Power County, State of Idaho, and George L. England, H. C. Misenhimer, Homer Kress, constituting the Board of County Commissioners, Power County, State of Idaho, and Allan G. Shepard, Attorney General, State of Idaho, Respondents.
No. 9607.
Supreme Court of Idaho.
December 4, 1964.
William J. Dee, Grangeville, for petitioner.
O. R. Baum, Ben Peterson and John B. Kugler, Pocatello, for respondents elections judges and county commissioners.
Allan G. Shepard, Atty. Gen., and M. Allyn Dingel, Jr., Boise, Asst. Atty. Gen., for respondent Allan G. Shepard.
TAYLOR, Justice.
This is an original proceeding brought by petitioner for a writ of mandate to compel the respondents, the recount judges in precinct No. 1 in Power county, the county commissioners of Power county, and the attorney general, to open and count the absentee ballots of two of the electors of that county and precinct.
On or about October 30, 1964, pursuant to application therefor, the auditor of Power county mailed absentee ballots with return envelopes to absentee electors Clara Duncan and Emelie Dormier, who received them on November 2, 1964. After marking them, the electors deposited the ballots in the mail on November 2, 1964, duly registered, for return to the county auditor. The auditor of Power county received the ballots on November 4, 1964, the day following the general election held November 3rd. The ballots were not opened or counted by the election judges.
In the election held November 3, 1964, petitioner was the candidate of the Democratic party for election to the legislature as senator from Power county, and one Vard Meadows was the candidate of the Republican party for the same office.
Following its canvass of the returns of the election, the board of county commissioners *236 certified the vote of Power county, for the office of state senator, as 1032 for Vard Weadows, and 1030 for petitioner.
Petitioner thereafter instituted proceedings for a recount of the ballots in three of the precincts of that county, one of which was precinct No. 1, in which the aforementioned absentees were registered electors. The recount proceedings are now pending, and this proceeding was brought by petitioner for a writ of this court to compel the opening and counting of the ballots of said absentees in the recount.
The pertinent provisions of the applicable statutes are:
"On marking such ballot or ballots such absent or disabled or blind elector shall refold same as theretofore folded and shall inclose the same in said official envelope and seal said envelope securely and mail by registered or certified mail or deliver it in person to the officer who issued same at least one (1) day before the date of such election. * * *" I.C. § 34-1105.
"On receipt of such absent or disabled or blind elector's ballot or ballots said officer receiving same shall forthwith enclose same, unopened, together with the application upon which such ballot or ballots were issued, in a carrier envelope endorsed with the name and official title of such officer and the words: `Absent Voter's Ballot, to be opened only at the polls on election day while said polls are open.' He shall hold the same until the delivery of the official ballots to the judges of election of the precinct in which said elector resides and shall deliver said ballot or ballots to said judges with such official ballots, or in case said ballot or ballots are received by such officer after the delivery of the official ballots to such judges he shall forthwith, upon its receipt, inclose it in a carrier envelope as heretofore prescribed, addressed to the judges of such election precinct in their official capacity and mail the same, postage prepaid, to such judges of election or deliver or send the same by agent to such judges without, however, incurring any expense for such delivery to the county or municipality, as the case may be." I.C. § 34-1106.
"Between the opening and closing of the polls on such election day the judges of election of such precinct shall open the carrier envelope only, announce the absent or disabled voter's name, and compare the signature upon the application with the signature of the ballot envelope, and in case they find such signatures to correspond and the applicant to be a duly qualified elector of the precinct and that he has not theretofore voted at said election, they shall open the ballot envelope and remove the ballot or ballots without destroying the indorsement on the envelope, nor unfolding nor permitting the ballot or ballots to be unfolded, and having indorsed the ballot or ballots as other ballots are required to be indorsed shall deposit the same in the proper ballot box and cause the absent or disabled voter's name to be entered on the poll books the same as though he had been present and voted in person." I.C. § 34-1107.
Idaho Code § 34-1108 sets forth the grounds and proceedings for the rejection of defective absentee ballots.
"The vote of any absent or disabled or blind voter may be challenged for cause as though he were present and the judges of election shall have all the powers and authority given by law to hear and determine the legality of such absentee vote or ballot." I.C. § 34-1109.
Petitioner calls attention to the fact that I.C. § 34-1105, supra, was printed on the outside of the official envelopes furnished to the absentees by the auditor for the return of the ballots by registered mail, and urges that they correctly interpreted the statute to mean that if they registered and mailed the ballots the day before the *237 election  which they did  they thereby complied with the terms of the statute. It is conceded that § 34-1105 is ambiguous as to the time an absentee ballot must be delivered to the auditor, in case delivery is made by registered or certified mail. In resolving such ambiguity this section must be construed in pari materia with §§ 34-1106, '07, '08, and '09.
When this is done it is evident that these sections of the statute require that absentee ballots be delivered to, and be opened by, the election judges prior to the close of the polls on the day of the election. Maddox v. Board of State Canvassers, 116 Mont. 217, 149 P.2d 112 (1944); Griffin v. Rausa, 2 Ill.2d 421, 118 N.E.2d 249 (1954).
The ballots here in question, not having been received by the county auditor until the day after the election, could not have been, and were not, delivered to the election judges before the close of the polls, while they, the election judges, were still clothed with the powers and duties of their offices as such judges.
The writ must therefore be denied.
We are mindful of the provisions of art. 3, § 9, of our constitution, to wit:
"Each house when assembled shall choose its own officers; judge of the election, qualifications and returns of its own members, determine its own rules of proceeding, and sit upon its own adjournments; * * *." (See also, I.C. Title 34, Ch. 21.)
This provision makes each house of the legislature the sole judge of the election and qualification of its members. The candidates concerned in this proceeding being contestants for the office of state senator, the ultimate decision as to which shall be declared elected and seated, remains to be made by the state senate when assembled. Our decision herein is not binding upon that body. It may be considered, along with other pertinent data, for what weight or effect the senate may see fit to give it, in the final determination of the election of the senator for Power county, should a proceeding for that purpose be initiated in or by the state senate. 81 C.J.S. States § 34; 49 Am.Jur. States, § 34.
However, we are not here concerned with the election or qualification of either of the candidates. This is not an election contest or recount proceeding, nor a review of such. We are concerned only with the narrow issue as to the authority and duty of this court to compel respondents to open and count two absentee ballots.
Writ denied and proceedings dismissed.
No costs allowed.
KNUDSON, C. J., and McQUADE, McFADDEN and SMITH, JJ., concur.


886 F.Supp. 921 (1994)
Kathleen SCHAEFER, Plaintiff,
v.
CYBERGRAPHIC SYSTEMS, INC., Cybergraphic Systems, Pty., Ltd., Robert Brierly, Ronald Hoolahan, and Bernard Grinberg, Defendants.
Civ. A. No. 93-12421-WGY.
United States District Court, D. Massachusetts.
September 21, 1994.
*922 Susan R. Byrd, Wakefield, MA, for plaintiff Kathleen Schaefer.
Barbara A. O'Donnell, Sherin & Lodgen, Boston, MA, for defendants Cybergraphic Systems, Inc., Cybergraphic Systems, Pty., Ltd., Robert Brierly, Bernard Grinberg, Ronald Hoolahan.

MEMORANDUM AND ORDER
YOUNG, District Judge.

I. Background and Prior Proceedings
The plaintiff, Kathleen Schaefer ("Schaefer"), brings this action alleging gender bias and violations of the Fair Labor Standards Act and the Racketeer Influenced and Corrupt Organizations Act, as well as pendant state law contract and tort claims. She named as defendants Ronald Hoolahan ("Hoolahan"), Bernard Grinberg ("Grinberg"), and Robert Brierly ("Brierly"), as well as Cybergraphic Systems, Pty. Ltd. ("Limited") and Cybergraphic Systems, Inc. ("Cybergraphic").
As alleged by Schaefer, the relevant facts of the case would seem to be as follows: Schaefer worked for Cybergraphic, a Massachusetts corporation that is a subsidiary of Limited, from 1983 until she was terminated in 1992. From 1987 until 1992, Schaefer worked for Cybergraphic as a commission sales representative. This work required her to travel extensively in the United States and abroad selling Cybergraphic's computer software and hardware to newspaper companies and publishers. When Schaefer became a sales representative, Cybergraphic agreed in writing to pay her a base salary plus commissions of 3-5% net on any computer sales she made. Additionally, Cybergraphic agreed to reimburse her for any business-related expenses regardless of whether she was successful in making a sale. Initially, Schaefer was successful at her work and made lucrative sales for Cybergraphic.
By 1992, however, Schaefer's relationship with Cybergraphic had deteriorated and her contacts with Robert Brierly, a manager at Cybergraphic, were tense. Schaefer alleges that at this same time Hoolahan and Grinberg, each a shareholder and director both of Limited and Cybergraphic, began to interfere with her work. Despite the fact that Schaefer was not an employee of Limited, Brierly assigned Schaefer to work in Australia on Limited's Fiji, Christchurch, and Cumberland orders. According to Schaefer, Brierly, Hoolahan, and Grinberg conspired to make the working environment uncomfortable for her. For example, Schaefer claims that Hoolahan required her to water his plants and watch his cat when he was out of town. No other employee was required to perform these tasks, and Schaefer suspects that Hoolahan singled her out specifically because of her gender. Schaefer also alleges that Hoolahan, Grinberg, and Brierly induced her to make sales to clients and then subsequently conspired through the use of wire transmissions and the United States Postal Service to keep for themselves $348,000 in commissions owed to her.
Limited, Hoolahan, and Grinberg moved to dismiss for lack of personal jurisdiction on June 27, 1994. Limited, an Australian corporation, argued that it does not control the day-to-day business activities of its subsidiary Cybergraphics, which is located in Wakefield, Massachusetts, and that it therefore lacks minimum contacts with this state. Limited claims that any exercise of jurisdiction *923 over it by this Court would violate due process under the United States Constitution. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). This Court heard oral arguments on the motions to dismiss on July 28, 1994. At the hearing, it developed that this is one of a number of complaints filed by Schaefer against various individuals and entities including certain of the present defendants. One such suit, pending in the Massachusetts Superior Court, was represented to be well on its way to settlement or trial. The Court therefore suggested that the wisest course might be administratively to close this case and await results in the Massachusetts Superior Court. Not surprisingly, the defendants favored this course, while Schaefer demurred. Ruminating, the Court stated that it was reluctant to require Hoolahan and Grinberg, both Australian citizens and residents, to defend themselves in Massachusetts. The Court noted that, even if the two had "minimum contacts" with Massachusetts, the distance between Boston and Australia alone placed so great a burden on the individual defendants as could well deny them the "fair play" required by International Shoe, 326 U.S. at 316, 66 S.Ct. at 158.
Schaefer's main concern emerged at this point. Her counsel ceased to press as to the individual defendants (without in any way abandoning the point) and turned to arguing strenuously that Cybergraphics is, in fact, insolvent and that Limited therefore is the only defendant with assets to pay Schaefer in the event she prevails. Counsel pointed out that in 1993 Cybergraphic's landlord initiated summary process proceedings against it in the Malden District Court. Cybergraphics eventually lost that suit and still owes the landlord thousands of dollars in unpaid rent. Due to Cybergraphic's financial difficulties, Limited advanced over $3,000,000 to Cybergraphics to meet its financial obligations. Cybergraphic, however, has not improved financially, and as a result California recently suspended Cybergraphic's corporate status. Thus, counsel explained, it is crucial for Schaefer to ascertain  for settlement purposes if nothing else  whether Limited is subject to the personal jurisdiction of this Court.
Accepting arguendo that, absent Limited, Schaefer may not be able to recover her estimated damages from the individual defendants, the Court, with the general agreement of the parties, took under advisement the issue of personal jurisdiction over Limited and otherwise administratively closed the case pending a resolution of the most closely related Massachusetts Superior Court case. This memorandum accordingly focuses solely on the issue of personal jurisdiction over Limited.

II. Analysis
A plaintiff can establish jurisdiction over a foreign defendant by proving two elements: 1) that a statute specifically authorizes jurisdiction over the defendant and 2) that the exercise of jurisdiction comports with due process requirements under the United States Constitution. United Elec. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1086 (1st Cir.1992).
A defendant who challenges the personal jurisdiction of a district court over it shifts the burden of producing the facts necessary to establish jurisdiction onto the plaintiff. Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904 (1st Cir.1980). The burden is thus on Schaefer to demonstrate that Limited is subject to this Court's jurisdiction. More specifically, Schaefer must make a prima facie showing that personal jurisdiction exists. Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir.1992). Under the prima facie analysis, the Court considers only whether the admissible evidence that the plaintiff has submitted in the record is sufficient to support findings on each jurisdictional element. Id. Moreover, "[i]n determining whether a prima facie showing has been made, the district court is not acting as a factfinder. It accepts properly supported proffers of evidence by a plaintiff as true." Id.
While the prima facie test is a lenient standard, a plaintiff cannot simply rely on unsupported allegations in her pleadings to establish personal jurisdiction over a defendant. Rather, she must set forth, through affidavits and other competent evidence, specific *924 facts on each jurisdictional element. Id. (unsupported allegations are insufficient to make a prima facie showing of personal jurisdiction, which "must be based on evidence of specific facts set forth in the record").
The purpose of this deferential standard is to allow the plaintiff the opportunity to present her claim to the court without having to confront from the outset of the case the problems of the weighing of the evidence and the credibility of witnesses that a "full dress jury trial" usually entails. Val Leasing, Inc. v. Hutson, 674 F.Supp. 53, 55 (D.Mass.1987). Accordingly, a plaintiff's successful prima facie showing warrants a preliminary ruling that personal jurisdiction over the defendant exists. The final determination on the issue of jurisdiction will be made by the Court based on the facts established at trial. North Am. Video Corp. v. Leon, 480 F.Supp. 213, 216 (D.Mass.1979) (Keeton, J.).

A. Jurisdiction Under Mass.Gen.L. ch. 223A § 3
The Massachusetts long-arm statute, Mass.Gen.L. ch. 223A § 3 (1985), specifically authorizes this Court inter alia to exercise personal jurisdiction over "a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's" (a) transacting business in this state or (b) owning or having an interest in real property in this Commonwealth.
Here, Schaefer demonstrates that Limited transacted business in this state, in that Grinberg had daily phone contact from Australia with Cybergraphics personnel on business matters. (Thomas Aff. at ¶ 8). See Nova Biomedical Corp. v. Moller, 629 F.2d 190, 195 (1st Cir.1980) (mailing letter into Massachusetts threatening patent litigation constitutes "transacting business" under long-arm statute). Moreover, Schaefer offers evidence that Limited currently owns an office in Burlington, Massachusetts, which would give it an interest in real property in this state. (Byrd Aff. at ¶ 10, Exh. 6). Schaefer therefore offered evidence that jurisdiction over Limited may be authorized by Mass.Gen.L. ch. 223A § 3.
Section 3 is, however, a grant of "special" as distinct from "general" jurisdiction. United Elec. Workers, 960 F.2d at 1086. The "arising from" language of section 3 requires that a plaintiff prove a substantial nexus between the cause of action and the defendant's in-state activity. Marino v. Hyatt Corp, 793 F.2d 427, 428-30 (1st Cir. 1986) (defendant's in-state conduct must form a material element of proof in plaintiff's case); Hahn v. Vermont Law School, 698 F.2d 48, 51 (1st Cir.1983) (defendant's forumbased conduct must be "instrumental" to the cause of action). Here, Schaefer puts forth no facts whatsoever that describe how Grinberg's phone calls or Limited's business office relate to the withholding of her commissions or the disparate gender treatment to which she alleges she was subjected. Consequently, Schaefer fails to meet the relatedness requirement under the Massachusetts long-arm statute.

B. Veil Piercing
Nothing daunted, Schaefer argues strenuously that she need not have recourse to long-arm jurisdiction in order to maintain this action against Limited. She asserts that Limited so completely controls Cybergraphic's daily business activities in Massachusetts that this Court ought disregard Cybergraphic's separate corporate identity and "pierce Cybergraphic's corporate veil" to exercise personal jurisdiction over its parent, Limited.
A plaintiff who asks a court to disregard independent corporate structures by piercing a subsidiary's "corporate veil" faces a high burden of proof. The concept of limited liability is so basic a principle of corporate law that courts are hesitant to disregard the independent corporate structure as between a parent corporation and its corporate subsidiaries. United Elec. Workers, 960 F.2d at 1091. Indeed, the First Circuit has held in Escude Cruz that a plaintiff who argues that a company's corporate veil should be pierced must provide "clear evidence that the parent in fact controls the activities of the subsidiary." Escude Cruz, 619 F.2d at 905.
Since Escude Cruz, this circuit has elaborated on the "clear evidence" standard. In *925 federal question cases, a plaintiff who argues that the corporate veil should be pierced must prove three elements. First, the plaintiff must prove that manifest injustice will fall on the party in favor of veil piercing should the court uphold the corporate shield. Second, the plaintiff must prove that the parent and subsidiary ignored the independence of their separate operations. Third, the plaintiff must show that the principal had some fraudulent intent in its modus operandi. United Elec. Workers, 960 F.2d at 1093-94. This third point is most significant because it imposes in federal question cases an element of proof not to be found in Massachusetts corporate law. Compare My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 619, 233 N.E.2d 748 (1968) (Cutter, J.) (veil piercing allowed where parent simply exercises "pervasive control" over subsidiary).
Assaying the first hurdle erected by United Elec. Workers, Schaefer has proffered evidence that she worked on Limited's Fiji, Christchurch, and Cumberland, Australia orders. She estimates that Limited still owes her approximately $348,000 in unpaid commissions and unreimbursed business-related expenses. Given Cybergraphic's bleak financial future and the uncertainty of personal jurisdiction over Hoolahan and Grinberg, Schaefer would have to carry this litigation to Australia if the Court recognizes the corporate independence of Limited and Cybergraphic. Schaefer demonstrates that she lacks the economic clout to track Limited to its lair and has therefore shown that she will suffer manifest justice if Limited actually ignored the corporate independence of Cybergraphic and itself does business here in Massachusetts.
Schaefer also surmounts the second hurdle of United Elec. Workers. She makes a prima facie showing that Limited and Cybergraphic ignored the independence of their separate operations. Les Thomas, a shareholder in both Limited and Cybergraphic and a former Cybergraphic officer, stated that the two companies often conducted business "as if the two companies were one" and comingled staff, sales, products, and personnel. (Thomas Aff. at ¶ 8). At trade shows, Limited and Cybergraphic presented themselves as one company. (Thomas Aff. at ¶ 10). Additionally, Limited appears to have taken over Cybergraphic's role as Schaefer's employer, as Schaefer worked on Limited sales prospects and presentations in Australia even though her employment contract was with Cybergraphic. Finally, a letter from the law firm of Hutchins and Wheeler indicated that the firm would perform no legal work for Cybergraphic without Limited's approval. (Exhibit D). This evidence supports Schaefer's contention that Limited and Cybergraphic ignored the independence of their separate corporate operations. Accordingly, Schaefer has made a prima facie showing of the first and second elements in United Elec. Workers.
Having come this far, Schaefer is entitled, under Massachusetts case law, to strip away Cybergraphic's corporate veil and confront Limited directly  at least she would be so entitled if her only claims were the pendant state causes of action. My Bread Baking Co., 353 Mass. at 619, 233 N.E.2d 748. But she is here in federal, not state, court and to stay here she must demonstrate subject matter as well as personal jurisdiction. Because Schaefer necessarily grounds subject matter jurisdiction on the federal questions she raises, she must confront United Elec. Workers's third hurdle.[1]
Here Schaefer stumbles. The fraudulent intent element requires a plaintiff to show some blameworthy conduct or culpability on the parent's part in controlling the subsidiary. United Elec. Workers, 960 F.2d at 1093 ("It is only when the quest to limit corporate responsibility evolves into a specific effort to evade a parent corporation's legal obligations that the possibility of veil piercing begins to loom"). Fraudulent behavior includes, without limitation, "maintain[ing] the subsidiary to avoid a statutory responsibility, act[ing] in a blameworthy manner, loot[ing] the subsidiary, or so undercapitalizing the *926 subsidiary that the latter could not reasonably have been expected to meet its obligations." Id.
Schaefer alleges that Limited has fraudulently conveyed all of Cybergraphic's assets to its newly formed subsidiary in California, Cybergraphic, Inc. ("California Cybergraphic"), so that even if Schaefer prevails against Cybergraphic at trial she will only have a paper judgment. She advances three arguments to support this contention. Two miss the mark entirely; the third is debatable.
First, Schaefer contends that Cybergraphic actually admitted in its answer to her state court complaint that the reason for the transfer of its assets was to "eliminate liabilities associated with the current.... litigation." (Byrd Aff. at ¶ 2, Exh. 1). Cybergraphic's state court answer, however, does not bear out this conclusion. The words quoted from the Byrd affidavit do not appear there anywhere. (Byrd Aff., Exh. 1I). Perhaps if Schaefer had included her state court complaint in the record, this Court could have compared it to Cybergraphic's answer in order to flesh out what allegations Cybergraphic actually admitted. Having failed to do so, however, the record is barren on this point since the best evidence of Cybergraphic's state court answer is the writing itself and Byrd's characterization of it is inadmissible hearsay.
Second, Schaefer states that a contact person for Cole Publishing Company, a Cybergraphic client, called her expressing concern over Cybergraphic's reorganization. The contact person allegedly stated that Cybergraphic had warranted to him that it owned a certain software license when, in fact, it only licensed the code from Limited. Moreover, the contact person also stated that when he expressed concern that Cybergraphic had not deposited the source code into the escrow account as promised, Cybergraphic told him he would have to renegotiate his contract with California Cybergraphic. He further stated that several other of Cybergraphic's customers were having the same problem and were concerned. (Byrd Aff., Exh. 1F [Schaefer Aff.] at ¶ 5). This, says Schaefer, is evidence of misrepresentation by Limited acting through its sham puppet, Cybergraphic.
The short answer is that these statements are all inadmissible hearsay. Fed.R.Evid. 801. Schaefer did not submit any affidavits from any of the clients she says complained of misrepresentations concerning the source code, nor is there any way, based on the evidence in the record, for this Court to know if those statements are true. Therefore, this Court cannot rule that those statements are competent evidence as required under Boit, 967 F.2d at 675.
Third, Schaefer intimates that Limited is looting Cybergraphic by transferring its assets to California Cybergraphic. She points out that the Massachusetts Superior Court, Hamlin, J., has preliminarily enjoined Limited, Cybergraphic, and California Cybergraphic from transfer of Cybergraphic's assets except in the normal course of business so that Schaefer will have assets to claim if she prevails on her related state court action. (Exhibit C). Moreover, Schaefer proffers a letter from Limited dated April 7, 1994, and circulated to its clients, stating that Limited intends to render Cybergraphic "dormant as a Cybergraphic trading entity" and that California Cybergraphic is the new American Cybergraphic subsidiary. (Exhibit G). Limited responds that it is acting in good faith to liquidate unneeded assets in order to down-size the company and pay off the company's creditors. (Byrd Aff., Exh. 1G [Hollands Aff.] at ¶¶ 12-16).
What is one to make of this? The injunction entered by my Superior Court colleague is not factually preclusive as it is but preliminary, University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981) (findings of fact made at preliminary injunction stage not binding at trial); Community Nutrition Institute v. Block, 749 F.2d 50, 56 (D.C.Cir.1984) (preliminary injunctions not factually preclusive in other litigation), and while I might take judicial notice of her action, Fed.R.Evid. 201(b), her view of these matters is hearsay in this Court and thus will not count toward Schaefer's prima facie showing. On the other hand, the Court must take Limited's April 7th letter at face value, at least at this stage, *927 without the interpretive gloss provided by the Hollands affidavit.
What emerges from this record, then, is a picture of Limited largely disregarding the corporate form it gave Cybergraphic and, instead, using Cybergraphic as its alter ego to do business in Massachusetts and elsewhere. Far from looting Cybergraphic, though, it appears that, as economic turmoil rose in the computer industry, Limited kept pumping money into Cybergraphic. Indeed, it was only when these transfusions failed to revive the increasingly moribund Cybergraphic and litigation apparently prompted Limited to seek competent legal advice within in the United States, that Limited established California Cybergraphic  the better both to operate from the Pacific rim rather than from here in Massachusetts, and to insulate itself more effectively from future litigation within the United States.
This is far from classic fraud. But
[t]o be sure, the word "fraud" has a protean quality. It connotes different things in different settings. In the ... veil-piercing sense, "fraud" may inhere even short of the reprehensible behavior necessary to prove, say, criminal fraud or independently actionable civil fraud. Then, too, the kind and quantum of fraud may be less than under some state-law veil-piercing rules. But, although the fraud threshold is lower when veil piercing is attempted in [a federal question] case, the threshold is not invisible.
United Elec. Workers, 960 F.2d at 1093.
In the present case, while Schaefer has demonstrated none of the exemplars of fraud in the jurisdictional sense which are noted in United Elec. Workers, this Court views that list as nonexhaustive. Thus, this Court rules that, in the totality of the present circumstances, Schaefer has demonstrated fraud in the jurisdictional sense. Viewed as a whole, her prima facie showing, while hardly compelling, is adequate. Limited exercised pervasive control over Cybergraphic throughout the period at issue here, treating Cybergraphic as its alter ego in Massachusetts and elsewhere throughout the United States. Schaefer has not the wherewithal to maintain her action in a forum that, while equally competent and learned, is halfway around the world. And Limited, however innocuous and business driven its past actions, is now trying to withdraw, Oz-like, behind the screen of California Cybergraphic and take its major assets with it. This is enough.

III. Order
For the foregoing reasons this Court holds that, for jurisdictional purposes, it may properly pierce the veil of Cybergraphic and exercise personal jurisdiction over Limited. Accordingly, Limited's motion to dismiss for lack of personal jurisdiction is DENIED. Until further order of the Court upon motion of any party, the case will remain administratively closed.
NOTES
[1]  Note that diversity jurisdiction is lacking here since Schaefer, Brierly, and Cybergraphic are all citizens of Massachusetts.


659 F.Supp. 606 (1987)
In the Matter of the Application of LIBERIAN EASTERN TIMBER CORPORATION, Arbitration Award Creditor, Plaintiff,
v.
The GOVERNMENT OF the REPUBLIC OF LIBERIA, Arbitration Award Debtor, Defendant.
Civ. A. No. 87-173.
United States District Court, District of Columbia.
April 16, 1987.
*607 Nicholas H. Cobbs, Washington, D.C., Thomas D. Troy, New York City, for plaintiff.
Charles A. Patrizia, Bruce D. Ryan, Washington, D.C., Philip F. Grant, Barry J. Mandel, Allan Dinkoff, Reginald F. Lewis, Charles Clarkson, W. Kevin Wright, New York City, for defendant.

MEMORANDUM OPINION
STANLEY S. HARRIS, District Judge.
This matter is before the Court on defendant The Government of the Republic of Liberia's (hereinafter Liberia) emergency motion for relief from orders attaching bank accounts of the Embassy of the Republic of Liberia, and for a temporary restraining order and a preliminary injunction against further attachment of embassy accounts. The Court previously issued a short Order on January 14, 1987, directing that Liberia's motion shall be treated as a motion to quash the writs of attachment seizing Liberia's bank accounts and stating that the motion was granted. This opinion, prepared after the parties filed post-hearing briefs, constitutes the Court's findings of facts and conclusions of law from which a party may appeal.

Facts
Plaintiff Liberian Eastern Timber Corporation (hereinafter LETCO) successfully sought in the United States District Court for the Southern District of New York an ex parte order directing entry of judgment for $9,076,857.25, based upon an arbitration award rendered against defendant Liberia. Pursuant to the judgment, writs of execution were issued to the United States Marshal for the Southern District of New York. Subsequently, in the same court, Liberia moved, inter alia, to enjoin the execution of the judgment. That court held LETCO to be enjoined from issuing executions against certain government property, but also ruled that "LETCO is not enjoined from issuing executions with respect to any properties which are used for commercial activities and that may fall within one of the exceptions delineated in section 1610 [of USC Title 28]."
LETCO then recorded the judgment in this court, and this court issued writs of attachment which were served on Riggs National Bank and First American Bank (as well as on other banks in which Liberia appears to have no accounts) to notify the banks that the writs seized "any credits other than wages, salary, commissions or pensions of the defendant, The Government of the Republic of Liberia, The Republic of Liberia, or The Embassy of the Republic ... of Liberia or any of their agencies, that are used for commercial activities as such activities are defined in `Birch Shipping Corp. v. Embassy of the Republic of Tanzania,' [sic], 507 F.Supp. 332 [sic] (D.D.C. 1980)," sufficient to satisfy the judgment against Liberia.
The writs seized two bank accounts at Riggs National Bank and three accounts at First American Bank.[1] These accounts are used for the functioning of the Liberian *608 Embassy and for the central bank of the Republic of Liberia.

Discussion
The Court concludes that the bank accounts of the Embassy of Liberia are immune from attachment under the Vienna Convention, 23 U.S.T. 3227, Apr. 18, 1961, T.I.A.S. No. 7502.
The Vienna Convention provides in Article 25 that "[t]he receiving State shall accord full facilities for the performance of the functions of the mission." 23 U.S.T. at 3238. The Liberian Embassy lacks the "full facilities" the Government of the United States has agreed to accord if, to satisfy a civil judgment, the Court permits a writ of attachment to seize official bank accounts used or intended to be used for purposes of the diplomatic mission.
If the "full facilities" to which the United States agreed to "accord" diplomatic immunity did not include bank accounts off the premises of the mission, the Liberian Embassy either would have to take grossly inconvenient measures, such as issuing only checks drawn on a Liberian bank, or would have to run the risk that judgment creditors of Liberia would cause the accounts the Embassy holds at banks located in the United States to be seized for an indefinite length of time, severely hampering the performance of the Embassy's diplomatic functions. Moreover, to interpret the term "accord," as used in Article 25, as merely allowing the Liberian Embassy to use bank accounts located in the United States but not affording the accounts the protection of diplomatic immunity would pay mere lip service both to Article 25 and to the intent of the Vienna Convention, as stated in its Preamble: "to ensure the efficient performance of the functions of diplomatic missions as representing States." 23 U.S.T. at 3230. The Liberian Embassy hardly could function efficiently without local bank accounts.
At the hearing on Liberia's motion, LETCO argued that only funds maintained on the premises of the mission are to be afforded diplomatic immunity because only property described in Article 22(3) of the Vienna Convention is exempt from attachment.[2] The Court does not agree with LETCO's contention. Article 22(3) does not provide the exclusive authority in the Vienna Convention to determine which property enjoys diplomatic immunity from attachment. Article 31 states that immovable property used for the purposes of the mission enjoys immunity from civil and administrative jurisdiction. Article 24 states that the archives and documents of the mission are inviolable wherever they may be. Although no provision of the Vienna Convention states specifically that official bank accounts used or intended to be used for purposes of the diplomatic mission enjoy diplomatic immunity from attachment, the Court concludes that not affording diplomatic immunity to the Embassy's bank accounts, despite the absence of such a specific provision, is inconsistent with both the agreement set forth in Article 25 and the intention of the parties to the Vienna Convention.
Under the Vienna Convention, therefore, the bank accounts of the Liberian Embassy used or intended to be used for purposes of the diplomatic mission are immune from attachment to satisfy a civil judgment. Although a finding of diplomatic immunity under the Vienna Convention resolves this matter as to the bank accounts of the Liberian Embassy, the Court also discusses the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1062-1611, to make clear that the bank accounts of the Liberian Embassy are immune from attachment regardless of a finding of diplomatic immunity.[3]
*609 The FSIA sets forth, inter alia, when a foreign state's property in the United States is not entitled to immunity from attachment. Title 28 U.S.C. § 1609 sets forth the general rule regarding sovereign immunity from attachment: "[T]he property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter."[4]
LETCO, in accordance with the injunction ordered by the District Court for the Southern District of New York, relies on an exception to the general rule of immunity, 28 U.S.C. § 1610(a)(1), which provides:
(a) The property in the United States of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if
(1) the foreign state has waived its immunity from attachment in aid of execution or from execution either explicitly or by implication, notwithstanding any withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiver....
*   *   *   *   *   *
28 U.S.C. § 1610(a)(1) sets forth a two-step analysis to determine immunity: first, the foreign state must have waived its immunity and, second, the property attached must be used for a commercial activity. Birch Shipping v. Embassy of the United Republic of Tanzania, 507 F.Supp. 311, 312 (D.D.C.1980).
The District Court for the Southern District of New York has determined that Liberia waived its sovereign immunity in the United States with respect to enforcement of the judgment now recorded in this Court. Liberian Eastern Timber Corporation v. The Government of the Republic of Liberia, 650 F.Supp. 73, 76-77 (S.D.N.Y. 1986).
As to whether the property attached was used for a commercial activity, Congress, at 28 U.S.C. § 1603(d), stated:
(d) A "commercial activity" means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.
The legislative history of the FSIA expands upon the meaning of commercial activity as follows:
[T]he fact that goods or services to be procured through a contract are to be used for a public purpose is irrelevant; it is the essentially commercial nature of an activity or transaction that is critical. Thus, a contract by a foreign government to buy provisions or equipment for its armed forces or to construct a government building constitutes a commercial activity. The same would be true of a contract to make repairs on an embassy building. Such contracts should be considered to be commercial contracts, even if their ultimate object is to further a public function.
By contrast, a foreign state's mere participation in a foreign assistance program administered by the Agency for International Development (AID) is an activity whose essential nature is public or governmental, and it would not itself constitute a commercial activity. * * * However, a transaction to obtain goods or services from private parties would not lose its otherwise commercial character because it was entered into in connection *610 with an AID program. Also public or governmental and not commercial in nature, would be the employment of diplomatic, civil service, or military personnel, but not the employment of American citizens or third country nationals by the foreign state in the United States.
*   *   *   *   *   *
H.Rep. No. 1487, 94th Cong., 2d Sess. at 16, U.S.Code Cong. & Admin.News 1976, p. 6615.
The "rule of thumb" used to determine whether activity is of a commercial or public nature is "if the activity is one in which a private person could engage, it is not entitled to immunity." Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1549 (D.C.Cir.1987) (quoting Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 309 (2d Cir.1981)).
The concept of "commercial activity" should be defined narrowly because sovereign immunity remains the rule rather than the exception, Gibbons v. Republic of Ireland, 532 F.Supp. 668, 670-71 (D.D.C. 1982), and because courts should be cautious when addressing areas that affect the affairs of foreign governments. See 14 C. WRIGHT, A MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE, § 3662, 382-83 (1985).
The Liberian Embassy bank accounts are "utilized for the maintenance of the full facilities of Liberia to perform its diplomatic and consular functions as the official representative of Liberia in the United States of America, including payment of salaries and wages of diplomatic personnel and various ongoing expenses incurred in connection with diplomatic and consular activities necessary to the proper functioning of the Embassy." Greaves Affidavit, ¶ 6. The essential character of the activity for which the funds in the accounts are used, therefore, undoubtedly is of a public or governmental nature because only a governmental entity may use funds to perform the functions unique to an embassy. See MacArthur Area Citizens Association v. Republic of Peru, 809 F.2d 918, 920 (D.C.Cir.1987).
The Court presumes that some portion of the funds in the bank accounts may be used for commercial activities in connection with running the Embassy, such as transactions to purchase goods or services from private entities. The legislative history of the FSIA indicates that these funds would be used for a commercial activity and not be immune from attachment. The Court, however, declines to order that if any portion of a bank account is used for a commercial activity then the entire account loses its immunity. Cf. Birch, 507 F.Supp. at 313. On the contrary, following the narrow definition of "commercial activity," funds used for commercial activities which are "incidental" or "auxiliary," not denoting the essential character of the use of the funds in question, would not cause the entire bank account to lose its mantle of sovereign immunity. See Practical Concepts, 811 F.2d 1543, 1549.
Indeed, a diplomatic mission would undergo a severe hardship if a civil judgment creditor were permitted to freeze bank accounts used for the purposes of a diplomatic mission for an indefinite period of time until exhaustive discovery had taken place to determine the precise portion of the bank account used for commercial activities.[5] Such a scenario would practically gut one of the purposes behind immunity: to afford deference to the governmental affairs of foreign states. In addition, requiring diplomats to segregate funds of a public character from commercial activity funds to avoid the risk of attachment is not the solution. Courts, let alone diplomats, have difficulty determining whether funds are public or commercial in nature. See, e.g., Texas Trading, 647 F.2d 308-10.
*611 In conclusion, the bank accounts of the Liberian Embassy are immune from attachment both because they enjoy diplomatic immunity under the Vienna Convention and because no exception of the FSIA applies to deprive the bank accounts of their grant of sovereign immunity. Also, as noted above, the bank account used for the central bank of Liberia is immune under 28 U.S.C. § 1611(b)(1).
NOTES
[1]  Following the hearing on the motion to quash the parties stipulated that defendant also holds a bank account in the name of The Liberian Embassy at American Security Bank in Washington, D.C., and that the Court's Order of January 14, 1987, shall apply to the Embassy account at American Security Bank to the same extent as it applies to the Embassy accounts at Riggs National Bank and First American Bank.
[2]  Article 22(3) of the Vienna Convention provides:

3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
[3]  The Court notes that Congress did not intend the FSIA to affect diplomatic immunity under the Vienna Convention. See H.Rep. No. 1487, 94th Cong., 2d Sess. at 12, U.S.Code Cong. & Admin.News 1976, p. 6604. Indeed, 28 U.S.C. § 1609 explicitly states that Congress enacted the FSIA "[s]ubject to existing international agreements to which the United States is a party at the time of enactment of this Act...." The United States was a party to the Vienna Convention at the time Congress enacted the FSIA, so the provisions of the Vienna Convention are controlling over the FSIA.
[4]  In addition to the Embassy accounts, one of the attached bank accounts is used for the central bank of Liberia and, as LETCO conceded at the hearing on the motion, that bank account is immune from attachment under the FSIA, 28 U.S.C. § 1611(b)(1). The remainder of this opinion addresses the attached bank accounts of the Liberian Embassy.
[5]  This would be a difficult task at best because Article 24 of the Vienna Convention provides that "[t]he archives and documents of the mission shall be inviolable at any time and wherever they may be." Article 29 provides that "[t]he person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention...." Article 31(c)(2) provides, "[a] diplomatic agent is not obliged to give evidence as a witness." 23 U.S.T. at 3238, 3240, 3241.


Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed February 6, 2013

                                     In The

                    Fourteenth Court of Appeals
                                  ____________

                              NO. 14-12-01135-CV
                                  ____________

            IN RE AMERICAN NATIONAL COUNTY MUTUAL
          INSURANCE COMPANY AND AMERICAN NATIONAL
                LLOYDS INSURANCE COMPANY, Relators

                        ORIGINAL PROCEEDING
                          WRIT OF MANDAMUS
                            212th District Court
                          Galveston County, Texas
             Trial Court Cause Nos. 11CV0882 and 11CV0882-A

                        MEMORANDUM OPINION

      On December 18, 2012, American National County Mutual Insurance
Company and American National Lloyds Insurance Company (“Relators”) filed a
petition for writ of mandamus. See Tex. Gov't Code Ann. § 22.221. Relators ask
this Court to order The Honorable Susan Criss, Judge of the 212th District Court of
Galveston County, Texas, to set aside her order dated December 5, 2012, entered
in trial court cause number 11CV0882,1 styled Jennifer Avery, Individually and as
Representative of the Estate of Brittiany Yuchnewicz v. Jonathan Hammond, Larry
Hammond, and Terrie Hammond.                      Relators assert the trial court abused its
discretion in denying their plea to the jurisdiction. On January 24, 2013, Relators
filed in this court an emergency motion for stay of the proceedings in the trial
court.       On January 25, 2013, that motion was granted and we ordered the
proceedings of the court below be stayed only as to the claims against Relators. A
response to the petition was requested. As of this date, none has been filed. We
conditionally grant the writ.

          Jennifer Avery filed suit against the Hammonds for two incidents, the
second of which resulted in the death of her daughter, Brittiany Yuchnewicz.
Avery subsequently amended her petition to include a declaratory judgment action
against Relators, the Hammonds’ insurers, to determine their obligation to
indemnify the Hammonds. Relators filed a plea to the jurisdiction alleging the trial
court lacked subject matter jurisdiction. After a hearing, the motion was denied.

          Relators claim Avery lacks standing to initiate a declaratory judgment action
against the defendants’ insurance company because no finding that defendants are
liable to Avery has been made. Relators assert the issues are not “ripe.”
          “A tort claimant has no direct claim against the tortfeasor’s liability insurer
until the insured tortfeasor is adjudged liable to the tort claimant.” Farmers Ins.
Exchange v. Rodriguez, 366 S.W.3d 216, 223 (Tex. App. - Houston [14th Dist.]
2012, pet. filed). Thus, until the Hammonds are adjudged liable to Avery, Avery
has no direct claim against Relators. Although Avery is a third-party beneficiary
of the Hammonds’ insurance policy, she cannot enforce the policy directly against

1
    After the plea to the jurisdiction was denied, the trial court entered an order of severance.

                                                    2
Relators until it has been established, by final judgment or agreement, that the
Hammonds have a legal obligation to pay damages to her. Id. Because there is
currently no obligation for the Hammonds to pay Avery damages, Avery cannot
demonstrate a reasonable likelihood that her claims against Relators will soon
ripen in the case under review, and these claims must be dismissed for lack of
subject-matter jurisdiction.      See id.     There can be no justiciable controversy
regarding the insurer’s duty to indemnify before a judgment has been rendered
against an insured. Id.2 We therefore find the trial court lacks subject matter
jurisdiction as to Avery’s claims against Relators.
       Subject matter jurisdiction is never presumed and cannot be waived. Tex.
Ass’n of Business v. Air Control Bd., 852 S.W.2d 440 (Tex. 1993). A trial court
has no discretion and must dismiss the case as a ministerial act when it lacks
subject matter jurisdiction. Qwest Microwave, Inc. v. Bedard, 756 S.W.2d 426
(Tex.App.—Dallas 1988, orig. proceeding). Mandamus is available where the trial
court’s action is void as a matter of law. Lewis v. Leftwich, 775 S.W.2d 848
(Tex.App.—Dallas 1989, orig. proceeding). We therefore find Relators are
entitled to mandamus relief. See also In re John G. and Marie Stella Kenedy
Memorial Foundation, 315 S.W.3d 519, 522 (Tex. 2010) (mandamus relief was
appropriate in case in which trial court lacked jurisdiction because plaintiff had no
standing).

2
  A declaratory judgment can be sought before liability is determined on the duty to defend.
English v. BGP Intern, Inc. 174 S.W.3d 366, 371-72 (Tex. App. -- Houston [14th Dist.] 2005,
no pet.). However, a declaratory judgment on the duty to indemnify is only justiciable “when the
insurer has no duty to defend and the same reasons that negate the duty to defend likewise
negate any possibility the insurer will ever have a duty to indemnify.” Farmers Texas County
Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex. 1997) (emphasis in the original). This case is
not within the exception.

                                               3
      Accordingly, we conditionally grant the petition for writ of mandamus
and direct the trial court to set aside her December 5, 2012 order, and enter
an order granting the plea to the jurisdiction and dismissing the case. The writ will
issue only if the trial court fails to act in accordance with this opinion.

                                         PER CURIAM

Panel consists of Justices Frost, Christopher, and Jamison.

                                            4


543 U.S. 833
PATTONv.CALIFORNIA ET AL.
No. 03-10410.
Supreme Court of United States.
October 4, 2004.

1
C. A. 9th Cir. Certiorari denied.


                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                           UNITED STATES COURT OF APPEALS
                                                                                APR 3 1997
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                Clerk
 PUEBLO BANK & TRUST COMPANY,

            Plaintiff-Appellee,

                v.                                           No. 96-3122
                                                             No. 96-3191
 LARRY D. STEELE, ARLYCE J.                             (D.C. No. 94-CV-1409)
 STEELE, MAX G. STEELE, and                                    (D. Kan.)
 SHARON K. STEELE,

            Defendants-Appellants,

                and

 FIRST NATIONAL BANK AND TRUST
 COMPANY, Phillipsburg, Kansas; and
 AZCOT, INC.,

            Defendants.

                                  ORDER AND JUDGMENT*

Before BRISCOE, McWILLIAMS, and LUCERO, Circuit Judges.

        Defendants Larry D. Steele, Arlyce J. Steele, Max G. Steele, and Sharon K. Steele

appeal the district court's grant of summary judgment in favor of plaintiff Pueblo Bank &

Trust Company in this mortgage foreclosure action. We affirm in part and dismiss in

part.

        *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       On June 12, 1979, the Steeles executed a $200,000 promissory note in favor of

Metropolitan Life Insurance Company, secured by a mortgage on real property in Greeley

County, Kansas, and a deed of trust on real property in Prowers County, Colorado. On

March 28, 1984, the Steeles executed a $50,000 note in favor of Citizens National Bank,

which was not secured by any real property. On April 29, 1985, the Steeles executed a

$540,000 promissory note in favor of Citizens National Bank, secured by a mortgage on

real property in Greeley County, Kansas (a different parcel from that securing the

Metropolitan note).

       Federal Deposit Insurance Corporation (FDIC) became the receiver for Citizens

National Bank in the late 1980's. On January 16, 1990, the Steeles entered into an

extension and modification agreement with FDIC which essentially gave the Steeles

additional time to pay the $540,000 note. A three-way transaction occurred between

FDIC (as receiver for Citizens National Bank), Pueblo, and the Steeles on July 17, 1992.

Pueblo loaned the Steeles $200,000 which the Steeles used to pay certain obligations to

FDIC. In turn, Pueblo received a deed of trust from the Steeles on real property in

Prowers County, Colorado (the same parcel securing the 1979 Metropolitan note). On its

face, the deed of trust indicated it was intended to act as security for the $200,000 loan.

Pueblo also received the $50,000 and $540,000 notes from FDIC. According to Pueblo, it

entered the transaction on its books by lumping together in a single obligation the balance

due on the $540,000 note and the $200,000 loan. The balance on this single obligation

was approximately $480,000. On July 21, 1992, Metropolitan assigned to Pueblo the

Metropolitan note, as well as the underlying mortgage on the Greeley County property

                                             -2-
and the underlying deed of trust on the Prowers County property, in return for

$113,734.80.

        Based on the described transactions, Pueblo became the holder of the Metropolitan

note, the $50,000 note, the $540,000 note, two deeds of trust covering the same parcel of

land in Prowers County, Colorado, and two mortgages covering separate parcels of land

in Greeley County, Kansas. The Steeles defaulted on the $540,000 note after failing to

pay the 1993 annual payment and Pueblo declared the entire balance due and payable.

Leo Altman, Pueblo's agent and attorney, mailed to the Steeles a "NOTICE OF

ELECTION AND DEMAND FOR SALE BY PUBLIC TRUSTEE," stating the "original

principal amount" of debt was $590,000, that "the outstanding principal balance due and

owing" was $573,687.85, and that "[t]he debt [wa]s evidenced by the original

$540,000.00 Note, the copy of the $50,000.00 Note, and the original two-page Agreement

dated July 27, 1992." Appellant's append. at 239.

        Altman sent a letter to the Public Trustee of Prowers County, Colorado, on May

20, 1994, transmitting various documents in connection with the foreclosure, including a

copy of the $540,000 note, a copy of the $50,000 note, and a copy of the July 17, 1992,

deed of trust. Altman noted "this is a little different from the normal foreclosure of the

Deed of Trust that simply secures a Promissory Note, but the Agreement provides for this

second mortgage as the basis of additional security for the repayment of the $540,000.00

Note which is currently in default." Id. at 220. On June 15, 1994, Altman filed a motion

and notice of foreclosure in the Pueblo County District Court, which stated in pertinent

part:

               Applicant, The Pueblo Bank and Trust Company, has filed a Motion with
        this Court, claiming to be the owner of a promissory note executed by Larry D.

                                             -3-
       Steele and Max G. Steele dated April 29, 1985 in the original principal sum of
       $540,000, . . . together with an Agreement between Applicant and Larry D. Steele,
       Arlyce J. Steele, Max G. Steele, and Sharon K. Steele dated July 17, 1992 as
       additional security, . . . all secured by a Deed of Trust dated July 17, 1992 and
       recorded July 20, 1992 . . . .
              The Motion claims that Applicant has the right to foreclose the deed of trust
       because principal and interest have not been paid as called for in said note and
       deed of trust.

Id. at 101.

       On July 8, 1994, the Pueblo County District Court issued an order authorizing the

Public Trustee of Prowers County to sell the real property described in the July 17, 1992,

deed of trust. On July 15, 1994, Altman submitted a bid for the property in the amount of

$174,085.68 (of which $172,000 was allegedly principal), with a stated deficiency of

$25,914.32. He submitted an amended bid on July 19, 1994, in the amount of

$174,085.68 (the same as the original bid), but with a stated deficiency of ".00." This

became the successful bid on the property. At Pueblo's request, the Public Trustee typed

the following on the original $540,000 note and on the July 17, 1992, agreement between

Pueblo and the Steeles:

               Date of Sale:               July 19, 1994
               Public Trustee Sale No.: 5-94
               Amount of Indebtedness: $174,085.68 (+ $573,687.85)*
               Amount of Bid at Sale:      $174,085.68
               *An indebtedness of $200,000 was secured by the Deed of Trust
       owned and held by the Pueblo Bank and Trust Company that was foreclosed
       by means of Public Trustee Sale No. 5-94 on July 19, 1994. Said
       indebtedness was evidenced by and described in this two-page “Agreement”
       and was satisfied in full by the successful bid of $174,085.68 submitted at
       Public Trustee Sale No. 5-94. In addition, a $540,000 Promissory Note
       dated April 29, 1985 and executed by Larry D. Steele and Max G. Steele
       (also referenced in the “Agreement”) was assigned to Pueblo Bank and
       Trust Company as part of the same transaction; per instructions from
       counsel for Pueblo Bank and Trust Company, the successful bid of
       $174,085.68 is to be credited against the balance remaining due on said
       Promissory Note. Based upon the Affidavit of said counsel dated May 24,
       1994, and furnished to the Prowers County Public Trustee, the outstanding

                                            -4-
       balance of said Promissory Note as of May 20, 1994 was $573,687.85.
       After crediting the bid of $174,085.68, the new outstanding balance of said
       Promissory Note is approximately $399,602.17 plus interest.

Id. at 222.

       Pueblo filed the present action on September 12, 1994, alleging the Steeles were in

default on the $540,000 note and the Metropolitan note, and asking the court to grant

judgment in rem against the Steeles and issue a decree for foreclosure and sale of the

mortgaged properties. The district court granted summary judgment in favor of Pueblo

on November 17, 1995, and on March 6, 1996, issued a decree of foreclosure. On May 3,

1996, the court entered judgment in favor of Pueblo.

                                      I. Jurisdiction

       The Steeles filed two separate appeals from the district court's orders. The original

notice of appeal in case No. 96-3122 was filed on April 1, 1996, after the decree of

foreclosure had been entered. Following entry of final judgment, the Steeles filed a

second notice of appeal in case No. 96-3191 on May 24, 1996. The appeals were

subsequently consolidated. Because the first notice of appeal ripened on May 3, 1996,

with the entry of final judgment, Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th

Cir. 1988) (en banc) (holding premature notice of appeal ripens when district court enters

final judgment on remaining claims), and because the second notice of appeal was timely

filed, we conclude we have jurisdiction pursuant to 28 U.S.C. § 1291.

                          II. Foreclosure of the $540,000 note

       The Steeles contend the district court erred in granting summary judgment in favor

of Pueblo on its cause of action based on the $540,000 note. According to the Steeles,

Pueblo is barred from pursuing this cause of action because the Colorado foreclosure

                                            -5-
proceeding completely satisfied the debt on this note. More specifically, the Steeles argue

the Colorado foreclosure proceeding was based on the same note and Pueblo admitted the

debt was satisfied when it submitted a bid for the Colorado property indicating a zero

deficiency. Accordingly, the Steeles argue Pueblo's cause of action on the $540,000 note

is barred by (1) the doctrine of waiver, (2) the doctrine of accord and satisfaction, and (3)

res judicata or collateral estoppel. We disagree.

Waiver

       Although the pleadings filed in connection with the Colorado foreclosure

proceeding are admittedly confusing, one crucial fact weighs against the Steeles' waiver

argument. The July 17, 1992, deed of trust indicates it was intended as security for the

$200,000 debt owed by the Steeles to Pueblo. Nowhere does the deed of trust mention

the $540,000 note. We conclude the $540,000 note was not secured by the July 17, 1992,

deed of trust. See Smith v. Haertel, 244 P.2d 377, 379 (Colo. 1952) (en banc) (holding

"the nature and amount of the indebtedness secured by [a] mortgage must be so expressed

that subsequent purchasers and attaching creditors need not look beyond the mortgage

itself to ascertain both the existence and amount of the debt"). Accordingly, we conclude

Pueblo's alleged failure to include the amount owing on the $540,000 note in the

deficiency amount of the amended bid could not have operated to waive the Steeles' debt

on the note.

       Moreover, we note the only case cited by the Steeles in support of their argument,

United Guar. Residential Ins. Co. v. Vanderlaan, 819 P.2d 1103 (Colo. App. 1991), is not

on point. In Vanderlaan, the lender submitted a bid of $200,000 (the full amount of the

                                             -6-
debt) but then attempted to lower its bid to $126,000 (apparently the fair market value of

the property) after the sale had taken place. The Colorado Court of Appeals, citing

Colorado civil procedure, rejected this attempt. Here, Pueblo did not attempt to lower the

amount of its bid after the sale and Vanderlaan is not applicable.

Accord and satisfaction

       The Steeles appear to be asserting Pueblo's unilateral actions in foreclosing on the

Colorado property, in particular its listing of a zero deficiency in its amended bid,

constitute an accord and satisfaction. As pointed out by Pueblo, "[a]ccord and

satisfaction . . . cannot be based on the unilateral action of one party." Trayco v. United

States, 967 F.2d 97, 100 (4th Cir. 1992). Rather, because it is "an adjustment of a

disagreement as to what is due from one party to another through payment of an agreed

amount," it "must be consummated by a meeting of the minds and accompanied by

sufficient consideration." EF Hutton & Co. v. Heim, 694 P.2d 445, 451 (Kan. 1985).

Here, the uncontroverted facts indicate there was no agreement between Pueblo and the

Steeles concerning resolution of the $540,000 note. Accordingly, the doctrine of accord

and satisfaction does not apply.

Res judicata/collateral estoppel

       Finally, we reject the Steeles' assertion that the doctrines of res judicata and

collateral estoppel preclude Pueblo's foreclosure action on the $540,000 note. Although a

Colorado state court did authorize the sale of the Colorado property, that court did not

decide any issues relevant to the instant proceeding. Rather, the Colorado state court

                                              -7-
determined there was a reasonable probability that default had occurred and that the

proposed foreclosure sale was otherwise proper pursuant to the Soldiers' and Sailors'

Relief Act of 1940. See Vanderlaan, 819 P.2d at 1104. The Colorado court did not

determine the $540,000 note was satisfied by the submission and acceptance of Pueblo's

bid on the Colorado property, nor did it specify in its order authorizing sale which debt

was being foreclosed. Moreover, the foreclosure proceedings were not adversarial in

nature and no final judgment was entered. See id. at 1105.

                       III. Foreclosure of the Metropolitan note

       The Steeles argue Pueblo's cause of action on the Metropolitan note is barred by

the doctrine of merger. The only case cited by the Steeles, Centennial Square, Ltd. v.

Resolution Trust Co., 815 P.2d 1002, 1005 (Colo. App. 1991), holds the doctrine of

equitable merger applies "when the value of the property [foreclosed] is equal to or

exceeds the debt represented by the mortgage." Clearly, the value of the Colorado

property purchased by Pueblo did not exceed the combined total of the amounts owing

under the $200,000 agreement, the $540,000 note, and the Metropolitan note. In fact, the

value of the property was sufficient only to pay off the balance owing on the $200,000

agreement. There is no evidence the amount Pueblo paid for the Colorado property

reflected a deduction for any prior obligations. See Ruther v. Thomas, 604 P.2d 703, 706

(Colo. App. 1979). There is no basis for applying the doctrine of merger.

                   IV. Redemption period on the Metropolitan note

       In their final issue on appeal, the Steeles argue the proper redemption period on the

Metropolitan note should have been one year instead of ninety days. This issue is moot.

                                            -8-
There is no indication the Steeles sought a stay of the district court's judgment pending

appeal. Further, it is uncontroverted that, after the court entered judgment, the Steeles

sold their redemption rights to a third party, who in turn redeemed the subject property

within the ninety-day redemption period. In short, the events that transpired during the

pendency of this appeal have made it impossible for us to grant any effectual relief to the

Steeles on this issue. See In re Osborn, 24 F.3d 1199, 1203 (10th Cir. 1994) (holding an

appeal must be dismissed as moot if appellate court cannot fashion effective relief due to

events that occurred while appeal was pending); CSG Exploration Co. v. F.E.R.C., 930

F.2d 1477, 1482 (10th Cir. 1991) ("The federal courts cannot issue advisory opinions or

'decide questions that cannot affect the rights of litigants before them.'") (quoting North

Carolina v. Rice, 404 U.S. 244, 246 (1971)); Mount Carbon Metropolitan Dist. v. Lake

George Co., 847 P.2d 254, 256 (Colo. App. 1993) (holding debtor's appeal moot where

foreclosure sale had been held and redemption period had expired). Accordingly, we

dismiss this portion of the appeal. See United States v. Chavez-Palacios, 30 F.3d 1290,

1293 (10th Cir. 1994) ("If a case becomes 'moot' at any phase of any judicial proceeding,

then the case must be dismissed.").

        The judgment of the district court is AFFIRMED. The portion of the Steeles'

appeal pertaining to the redemption period on the Metropolitan note is DISMISSED as

moot.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge

                                             -9-


234 P.3d 1173 (2010)
169 Wash.2d 1001-9
STATE
v.
HOS.
No. 84276-1.
Supreme Court of Washington, Department II.
July 7, 2010.
Disposition of Petition for Review Denied.


      NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               ______________________

                J. CARL COOPER,
                     Appellant

                          v.

                  SQUARE, INC.,
                      Appellee
               ______________________

          2015-1925, 2015-1942, 2015-1943
              ______________________

   Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in No.
IPR2014-00156, IPR2014-00157, IPR2014-00158.
                ______________________

                    JUDGMENT
               ______________________

   ROBERT GREENSPOON, Flachsbart & Greenspoon, LLC,
Chicago, IL, argued for appellant.

   THEODORE J. ANGELIS, K&L Gates LLP, Seattle, WA,
argued for appellee. Also represented by BENJAMIN
HELLERSTEIN; ERIKA ARNER, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, Reston, VA; AARON
JAMES CAPRON, Palo Alto, CA.
               ______________________
THIS CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

   PER CURIAM (PROST, Chief Judge, LOURIE and
TARANTO, Circuit Judges).
           AFFIRMED. See Fed. Cir. R. 36.

                      ENTERED BY ORDER OF THE COURT

April 14, 2016        /s/ Daniel E. O’Toole
    Date              Daniel E. O’Toole
                      Clerk of Court


784 F.2d 706
4 Fed.R.Serv.3d 427
Steve WILLIE, Plaintiff-Appellee, Cross-Appellant,v.CONTINENTAL OIL CO., et al., Defendants,Offshore Logistics, Inc., Defendant-Appellant, Cross-Appellee.
Nos. 83-3682, 84-3848.
United States Court of Appeals,Fifth Circuit.
March 12, 1986.

Phelps, Dunbar, Marks, Claverie & Sims, Clayton G. Ramsey, Bettye A. Barrios, New Orleans, La., for defendant-appellant, cross-appellee.
Abadie & Kohnke, Peter J. Abadie, Jr., New Orleans, La., for Steve Willie.
Drury & Lozes, New Orleans, La., for Booker.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES, Circuit Judges.*
ALVIN B. RUBIN and TATE, Circuit Judges:

1
Two panels of this court reached conflicting decisions concerning the classification of a post-judgment motion to amend the district court's judgment.  Compare Harcon Barge Co. v. D & G Boat Rentals, Inc.,1 with Willie v. Continental Oil Co.2   Willie allowed a court discretion to classify a post-judgment motion as invoking either Rule 59(e) or Rule 60.  Harcon Barge, on the other hand, held that, if a post-judgment motion falls within the scope of Fed.R.Civ.P. 59(e), and it is timely served within ten days after entry of judgment as the rule requires, then the court must consider it a Rule 59(e) motion for the purposes of Fed.R.App.P. 4(a)(4), however it may be styled.  The court, therefore, ordered both reheard en banc.

2
In Willie,3 one of the parties filed and served a "Motion to Amend Judgment" within ten days after the entry of the disputed judgment.  Shortly thereafter, the appellant and cross-appellant filed their notices of appeal.  The district court subsequently granted the motion to amend on December 2, 1983.  In our en banc decision today in Harcon Barge, we hold that any motion to amend a judgment served within ten days after the entry of judgment, except for a proper Rule 60(a) motion to correct purely clerical errors, is to be considered a Rule 59(e) motion.  As such, it suspends the time for filing a notice of appeal and renders premature any notice of appeal previously filed.4   In accordance with that decision, we hold that the motion to amend the judgment in this case was a Rule 59(e) motion, and the previously filed notices of appeal were null under Fed.R.App.P. 4(a)(4).  No notices of appeal were filed after the amended judgment was entered on December 2, 1983, and the time for filing has long since expired.  This court, therefore, lacks jurisdiction to hear the appeal.

3
We therefore order that the appeal in this case be dismissed, and the district court's amended judgment of December 2, 1983 be reinstated.  Costs shall be borne equally by the appellant and cross-appellant.

4
APPEAL DISMISSED.

5
E. GRADY JOLLY, Circuit Judge, with whom JERRE S. WILLIAMS and ROBERT MADDEN HILL, Circuit Judges, join, specially concurring:

6
When the panel wrote its opinion in this case, there was, as has been noted by the en banc opinion in Harcon Barge v. D & G Boat Rentals, Inc., 784 F.2d 665, at 668, 1986 (en banc), no exact method delineated in the cases of our circuit for treating motions to amend judgment.  In other words, until today there has been no bright-line rule in our circuit distinguishing which post-judgment motions are to be treated under Rule 59(e) and which under Rule 60, the rules overlapping as they do.  The panel, therefore, saved the appeal by holding that the motion in this case could be properly treated as a Rule 60(b) motion.

7
Today, we agree with the en banc court in Harcon that a bright-line rule is required in determining the applicability of the provisions of Rule 4(a)(4), Federal Rules of Appellate Procedure, to post-judgment motions.  Accordingly, we are willing to acquiesce in the holding the court has reached that all motions served within ten days of entry of judgment (except those relating to clerical errors), are to be treated under Rule 59(e).  We therefore concur in the result reached in this case that there was no timely notice of appeal filed and hence we have no jurisdiction to hear this appeal.

*
 Judge Randall did not participate in this decision

1
 746 F.2d 278 (5th Cir.1984), vacated, 760 F.2d 86 (5th Cir.1985) (ordering rehearing en banc), appeal dismissed, 784 F.2d 665 (5th Cir.1986) (en banc)

2
 746 F.2d 1041 (5th Cir.1984), vacated, 760 F.2d 87 (5th Cir.1985) (ordering rehearing en banc)

3
 A full description of the facts can be found in the panel opinion.    Willie v. Continental Oil Co., 746 F.2d 1041 (5th Cir.1984).  We give only those facts necessary for the rehearing

4
 784 F.2d 665, at 668 (5th Cir.1986) (en banc)


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 06-6146

MELANIE SAMMONS ANDERSON,

                                            Petitioner - Appellant,

          versus

ANNIE HARVEY, Warden,

                                              Respondent - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Graham C. Mullen,
Senior District Judge. (5:05-cv-00255)

Submitted: November 21, 2006              Decided:   November 29, 2006

Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Melanie Sammons Anderson, Appellant Pro Se.

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

            Melanie Sammons Anderson seeks to appeal the district

court’s order denying relief on her 28 U.S.C. § 2254 (2000)

petition.    The order is not appealable unless a circuit justice or

judge     issues   a   certificate    of     appealability.    28   U.S.C.

§ 2253(c)(1) (2000). A certificate of appealability will not issue

absent “a substantial showing of the denial of a constitutional

right.”    28 U.S.C. § 2253(c)(2) (2000).        A prisoner satisfies this

standard by demonstrating that reasonable jurists would find that

any assessment of the constitutional claims by the district court

is debatable or wrong and that any dispositive procedural ruling by

the district court is likewise debatable.          Miller-El v. Cockrell,

537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484

(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).          We have

independently reviewed the record and conclude that Anderson has

not made the requisite showing.         Accordingly, we deny Anderson’s

motion for appointment of counsel, deny her motion to proceed in

forma pauperis, deny a certificate of appealability, and dismiss

the appeal.    We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

                                                                DISMISSED

                                     - 2 -


Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-BG-230

IN RE: ANTOINE I. MANN,
                                 Respondent.                DDN: 413-16

Bar Registration No. 433378

BEFORE: Glickman and Beckwith, Associate Judges, and Farrell, Senior Judge.

                                       ORDER
                               (Filed – April 13, 2017)

       On consideration of Disciplinary Counsel’s report regarding petitioner’s
petition for reinstatement wherein Disciplinary Counsel informs the court that Mr.
Mann has demonstrated that he is fit to resume the practice of law, and it appearing
that petitioner is eligible to file the petition for reinstatement, see In re Mann, 883
A.2d 887 (D.C. 2005), it is

      ORDERED that petitioner’s petition for reinstatement is granted. It is

       FURTHER ORDERED that Antoine I. Mann is hereby reinstated to the Bar
of the District of Columbia.

                                   PER CURIAM