816 F.Supp. 1070 (1992)
Robert H. YOUNG and EDX Holdings, Inc., Plaintiffs,
v.
Raymond JONES, William Ruth, Alfred Martin, General Bennett, Tom Whelan, Claude Surface, Con Fecher, Ed Hughes, Helen Cork, William Eaxley, Tom Ruhf, George Strickland, Ann Grossheusch, Cathy McGill, other possible officers and directors of Hilton Head Bank and Trust, N.A., after July 1988, not yet ascertained, the Federal Deposit Insurance Corporation in its corporate capacity, and Price Waterhouse, Defendants.
Civ. A. No. 2:92-0308-1.
United States District Court, D. South Carolina, Beaufort Division.
October 16, 1992.
*1071 George Hunter McMaster, Thompkins & McMaster, Martin Baron Stanton, Columbia, SC, for plaintiffs.
Michael S. Seekings, Robertson & Sinkler, G. Dana Sinkler, Warren & Sinkler, Charleston, SC, for defendants.
Wistar D. Stuckey, Asst. U.S. Atty., United States Attorney's Office, Columbia, SC, Daniel F. Ross, F.D.I.C., Washington, DC, for F.D.I.C.
Jennings L. Graves, Jr., Love, Thornton, Arnold & Thomason, Greenville, SC, for Price Waterhouse-US.
Thornwell Forrest Sowell, III, Joseph Calhoun Watson, Nelson, Mullins, Riley & Scarborough, P.A., Columbia, SC, for Price Waterhouse-BAHAMAS.

ORDER
HAWKINS, Chief Judge.
This matter is before the court on three motions. Price Waterhouse, Chartered Accountants, a Bahamian partnership (PW-Bahamas), has moved for a dismissal pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure[1], alleging that this court lacks personal jurisdiction over it as defendant in this action because PW-Bahamas has insufficient contacts with the forum to meet the constitutional requirements for due process. The PW-Bahamas' motion was filed April 1, 1992.
As a part of its motion to dismiss, PW-Bahamas has moved for judgment on the pleadings as permitted by Rule 12(c). Pursuant to Rule 12(c), if evidence outside the pleadings is considered on a motion for judgment on the pleadings, the motion shall be treated as a motion for summary judgment and disposed of pursuant to Rule 56. The parties herein conducted discovery and submitted evidence on PW-Bahamas' dismissal motion, which the court considered.
Secondly Price Waterhouse-United States (PW-US) filed a motion April 2, 1992, to be dropped as a party pursuant to Rule 21, or, in the alternative, for dismissal for failure to state a claim pursuant to Rule 12(b)(6). In July 1992, PW-US also filed a motion to be dropped as a party because certain members of the U.S. partnership are not diverse from plaintiffs.
The third motion is a motion to amend the complaint, which was filed by plaintiffs to cure the diversity problem. The proposed amendment deletes PW-US as a party defendant, but names three members of the PW-US partnership who reside in South Carolina.
The moving parties and their opponents appeared before the undersigned to present evidence and argument on all three motions on Monday, September 28, 1992.
As background, this suit arises from an investment transaction. Plaintiffs are investors from Texas who deposited over a half-million dollars in a South Carolina bank and the funds have disappeared.
PW-Bahamas issued an unqualified audit letter regarding the financial statement of Swiss American Fidelity and Insurance Guaranty (SAFIG). Plaintiffs aver that on the basis of that financial statement, they deposited $550,000.00 in a South Carolina bank. Other defendants, not involved in the motions herein, allegedly sent the money from the South Carolina Bank to SAFIG. The financial statement of SAFIG was falsified. The plaintiffs' money and its investment potential has been lost to the plaintiffs and it is for these losses that the plaintiffs seek to recover damages.
Plaintiffs' motion to amend the complaint was the last filed of the three before the court, but will be considered first. Plaintiffs contend that if their proposed amendment of parties is granted, it will moot the July motion filed by PW-US to be dropped as a party.
The complaint, as amended, would name as defendants, in relevant part:

*1072 Price Waterhouse, Chartered Accountants, a Bahamian general partnership; Lee S. Piper; Herbert C. Schulken, Jr.; Dennis J. Goginsky; and other possible individual partners of Price Waterhouse, a New York general partnership, such as are residents of South Carolina, not yet ascertained.
There is support for plaintiffs' position that joinder of only the South Carolina members of PW-US, and dismissal of non-diverse members of PW-US, will technically cure the defect in the pleadings that joins defendants not diverse to plaintiffs.
In 1948 the Fourth Circuit Court of Appeals opined in Weaver v. Marcus, 165 F.2d 862 (4th Cir.1948), that non-diverse partners may be dropped and the suit maintained against diverse partners alone when liability is joint and several. In Weaver, administrators of Weaver's estate sued members of a partnership, individually and as partners, for the wrongful death of the deceased. Unbeknownst to plaintiffs, one partner, Carl Marcus, was non-diverse. Upon motion to drop Carl Marcus, the court noted that because partners are jointly and severally liable for the negligent acts of agents or employees acting within the apparent scope of their authority, individual partners can be sued without requiring the joinder of other partners.
Plaintiffs also cite South Carolina Electric & Gas Co. v. Ranger Constr. Co., Inc., 539 F.Supp. 578 (D.S.C.1982), as more recent support for the Weaver opinion. However, S.C.E. & G. did not involve a partnership or partners. The S.C.E. & G. case cited Weaver v. Marcus only for the proposition that it is appropriate by Rule 21 motion to drop a non-diverse tortfeasor if liability would be joint and several and the tortfeasor's presence in the suit would destroy diversity. Id., 539 F.Supp. at 580.
More recently the Weaver decision and others similar to Weaver, have been criticized. Cf. Cunard Line Ltd. v. Abney 540 F.Supp. 657 (S.D.N.Y.1982) (criticizes Weaver and other cases cited therein). Cunard Line Ltd. v. Abney points out that permitting suit solely against diverse partners, even if liability is joint and several, is a means to sue the partnership and to circumvent the rule that the citizenship of a partnership is determined by all partners. Therefore, while Weaver may not have been overruled, it is perhaps weak precedent. Furthermore, the Weaver court acknowledged problems not raised by the motion to drop Marcus and not resolved by the opinion:
[w]e do not think it necessary here to consider or decide, if judgment is obtained here by plaintiffs with [the non-diverse partner] dropped as a party, the extent to which the judgment would be binding on [him] under the doctrine of res adjudicate, or whether under such a judgment, execution could be levied on all the assets of the partnership.
Weaver v. Marcus, 165 F.2d at 865. These problems have yet to be resolved by case law.
Therefore, this court is not convinced that the assertion of subject matter jurisdiction over the South Carolina partners of PW-US herein would rest on solid ground in light of plaintiffs failure to allege any wrongdoing by any of the partners as individuals, but only against the partnership, vicariously.
The first cause of action alleged in the amended complaint is that the Bahamian accounting firm negligently performed an audit and negligently released an audit letter upon which the plaintiffs relied to their detriment. There are no allegations that PW-US, or any individual U.S. partner who resides in South Carolina, was involved in the subject transaction. The only connection between the allegations of negligence and the U.S. firm are conclusory allegations that the Bahamian partnership and the U.S. partnership operate as a partnership, or in the alternative, are a partnership by estoppel.
PW-US vigorously opposes the amendment because there are no allegations of wrongdoing by any member of the stateside partnership who resides in South Carolina. Additionally, PW-US argues that the amendment would not change the position of PW-US that the pleadings fail to state a claim against PW-US or any of its partners, individually, wherever residing. Defense counsel urged the court to consider its motion for dismissal whether on behalf of PW-US as *1073 named in the original complaint or on behalf of the South Carolina partners of PW-US as named in the amended complaint.
In response, plaintiffs' counsel argued at hearing that it would be procedurally irregular to grant the motion to amend but then allow counsel for PW-US to argue for dismissal for failure to state a claim on behalf of the South Carolina partners alone, without requiring the new defendants to assert their own 12(b) motions. Plaintiffs counsel urged the court to amend the pleading but to require PW-US to argue its Rule 12(b)(6) motion at some later date when a "new" motion could be filed on behalf of the South Carolina partners individually.
During hearing plaintiffs' counsel acknowledged that he received discovery on the partnership issues during the first week of August 1992. He did not contradict counsel for PW-US's statement that he had not complained as to the completeness of the response. Plaintiffs' counsel claims that he did not review the discovery on the issue of vicarious liability between the two entities prior to the hearing because a formal dismissal motion on behalf of the South Carolina partners alone had not been filed. The court notes that it was the plaintiffs who first raised this issue of vicarious liability between the two Price Waterhouse entities in response to PW-US and PW-Bahamas' motions in May, 1992 and plaintiffs have had ample time to study the issue. See, Plaintiffs' Request for Enlargement of Time To Respond to Two Price Waterhouse Motions to Dismiss, filed May 7, 1992.
Nonetheless, as a general rule amendment should be liberally granted. Rule 15(a), Federal Rules of Civil Procedure. In this particular case, there seems to be no reason not to permit the amendment, because whether the pleading are as originally filed or as amended the posture of the PW-US partnership is the same.
In addition, the court finds that there would be no prejudice to plaintiffs should the court consider PW-US's motion for dismissal pursuant to Rule 12(b)(6) on behalf of the South Carolina partners now rather than at a later date. No hardship will befall plaintiffs because the motions have been on file for months and the parties have been afforded an opportunity for discovery on the issues presented therein. Therefore, the court grants defense counsel's oral motion to consider PW-US's written 12(b)(6) motion on behalf of the South Carolina partners of PW-US remaining after the amendment of the complaint.
Those issues resolved, the court returns to the remaining motions, now being considered in light of the facts as alleged in the amended complaint, which are: PW-Bahamas' motion to dismiss for lack of personal jurisdiction; and, PW-US's motion, on behalf of the South Carolina partners, to dismiss for failure to state a claim.
PW-Bahamas has moved for dismissal for a lack of personal jurisdiction. A determination of whether this court may exercise personal jurisdiction over a non-resident defendant requires a two-step analysis. First, the court must determine if the nonresident defendant's conduct meets the requirements of the South Carolina long-arm statute, which is found at S.C.Code Ann. § 36-2-803. Second, the court must determine if the non-resident defendant had sufficient contacts with the forum state to meet the constitutional standards of due process. Hammond v. Butler, Means, Evins & Brown, 300 S.C. 458, 388 S.E.2d 796 (1990) (citing Hume v. Durwood Medical Clinic, Inc., 282 S.C. 236, 318 S.E.2d 119 (Ct.App. 1984)).
South Carolina's long-arm statute extends to the constitutional limits imposed by the due process clause. Triplett v. R.M. Wade & Co., 261 S.C. 419, 200 S.E.2d 375, 379 (1973); see also, S.C.Code § 36-2-803. As a result, the state law analysis collapses into the constitutional analysis. Therefore, the question is simply whether the defendant, in this case PW-Bahamas, has sufficient "minimum contacts" with South Carolina such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). As the *1074 Supreme Court has traditionally noted: "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958).
Plaintiffs' allege that an unqualified audit letter concerning a financial statement of an association, SAFIG, was issued by a Bahamian accounting office. The letterhead identified the Bahamian accounting firm only as "Price Waterhouse." The audit letter also bore a Price Waterhouse trademark and was signed "Price Waterhouse."
Plaintiffs assert that it was foreseeable to the accounting firm that issued the letter that third-parties would rely upon the financial statement, the subject of the audit letter. According to the plaintiffs, the stamp of approval created by Price Waterhouse's audit letter of SAFIG's financial statement lent credence to the defrauders' claims so that plaintiffs were induced to invest to their detriment.
The Plaintiffs' argument as to PW-Bahamas' jurisdictional contact can be distilled to its essential elements as such: PW-Bahamas audited the financial statement of a company that had its sole asset located in South Carolina; thus, it was foreseeable to PW-Bahamas that it could be haled into court in South Carolina.
In rebuttal, PW-Bahamas proffers the affidavit of Thomas F. Hackett, a partner in PW-Bahamas. PW-Bahamas asserts a lack of minimum contacts with the forum state such that the exercise of personal jurisdiction over PW-Bahamas would offend traditional notions of substantial justice and fair play.
Mr. Hackett attests that PW-Bahamas is a partnership organized and existing under the laws of the Bahamas. He further alleges that the partnership is not now, nor has it ever been, organized or incorporated under the laws of the State of South Carolina; moreover, the partnership has never been registered here with the Secretary of State.
Further, PW-Bahamas declares that it has no offices, agents, or employees and no property, real or personal, located within the State of South Carolina and it has not engaged in business within the state. Additionally, PW-Bahamas insists that no one has ever traveled to the State of South Carolina to conduct business on behalf of PW-Bahamas. Finally, PW-Bahamas contends that it has never contracted to supply services in the State of South Carolina, nor has it entered into any contract to be performed in whole or in part in South Carolina.
Plaintiffs have submitted, as evidence of PW-Bahamas's contact with South Carolina, a form that was submitted to the South Carolina bank to confirm the deposits of the Swiss association. The form was to be returned upon completion to PW-Bahamas. There is no evidence that PW-Bahamas mailed the form to the bank; however, there is some evidence that the form was completed and the information contained therein was used by the accounting firm to substantiate its audit of SAFIG's financial statement.
Plaintiffs also offer a memo, which purportedly transmitted a copy of the Price Waterhouse audit letter to Mr. Paul Knowles, whose address is in Nassau, Bahamas, but whose connection with this case was not made known to the court. The memo was prepared by an unidentified author on stationary that bears no identifying marks as to origin and the memo names two members of the firm of Price Waterhouse in the Bahamas as having participated in the preparation of the audit letter on the financial statement of SAFIG. The memo suggests that there was some contact between PW-Bahamas and the South Carolina bank in the receiving of information from the bank that SAFIG had a deposit in excess of $12 million in South Carolina.
PW-Bahamas does not deny that it prepared the audit letter. Furthermore, PW-Bahamas does not deny that it received information verifying the SAFIG deposit in the South Carolina bank.
Although, it may have been foreseeable that the audit letter of the financial statement would be relied upon by investors, there is no evidence that PW-Bahamas had any contact with the plaintiffs other than to *1075 have had the audit letter shown to them. There is no evidence that PW-Bahamas had any contact with the forum other than the verification of the bank deposit for the audit letter. "[F]oreseeability alone ... has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566 (1980). Even if plaintiffs could prove that they invested solely on the basis of the audit letter's confirmation that $12 million dollars was deposited in a South Carolina bank, PW-Bahamas single act of preparing the audit letter does not supply sufficient contact with South Carolina to confer personal jurisdiction. "The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State." Id. 357 U.S. at 253, 78 S.Ct. at 1239-40.
The minimum contacts test requires that the defendant have had sufficient contact with the forum state such that he could foreseeably have expected to have been sued within the forum. PW-Bahamas connection with the South Carolina bank in which it attempted to obtain verification of the balance on deposit in an account is not tantamount to a solicitation of business in South Carolina or a purposeful availment to the privilege of conducting business in South Carolina. See, Hanson v. Denckla, 357 U.S. 235, 251-253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958).
Given the fact that matters outside the pleadings have been considered for a determination of this motion to dismiss and discovery as to the jurisdictional issue has taken place, the plaintiffs bear the burden of proving by a preponderance that the court's exercise of jurisdiction is proper. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). Plaintiffs' proffer of evidence is inadequate to demonstrate "minimum contacts" with the forum sufficient to meet the test of due process. Accordingly, the court finds that there are insufficient contacts with the forum for this court to exercise personal jurisdiction over PW-Bahamas. However, plaintiffs assert a unique argument that the contacts of the PW-US partnership should be considered contacts by the PW-Bahamas' firm, because allegedly, the two are either a partnership in fact, or a partnership by estoppel. Accordingly, the court will address the partnership allegations and the evidence submitted on that issue.
Plaintiffs assert that PW-Bahamas and PW-US operate as a partnership, i.e., constitute an association of persons to carry on, as owners, business for profit. In the alternative, plaintiffs contend that if the two associations are not actually operating as partners they are operating as partners by estoppel.
Defendants PW-US and PW-Bahamas flatly deny that a partnership exists between the two entities and have supplied, under seal, copies of relevant documents executed which establish that the two entities are separately organized. Counsel for plaintiffs admits that he has found nothing which establishes that the two entities are partners in fact. The evidence presented wholly belies plaintiffs claims that PW-Bahamas and PW-US are operating as a partnership in fact. Thus, the court finds that there is no partnership, in fact, between PW-Bahamas and PW-US.
Then, plaintiffs make a double-edged argument that PW-US is a partner by estoppel of PW-Bahamas. On the one hand, the argument is that if the two partnerships are partners by estoppel, then the court has personal jurisdiction over PW-Bahamas, as PW-US's partner by estoppel, because PW-US has at least "minimum contacts" with South Carolina. On the other hand, the argument for estoppel seems to be that if the two partnerships are partners by estoppel then PW-US can be held liable for the negligent acts of its partner PW-Bahamas, so the claim against PW-Bahamas operates as a claim against PW-US. Therefore, the court will review the evidence that plaintiffs have presented on the issue of partnership by estoppel on both the Rule 12(b)(2) motion presented by PW-Bahamas and the Rule 12(b)(6) motion presented by PW-US.
As a general rule, persons who are not partners as to each other are not partners as to third persons. S.C.Code Ann. § 33-41-220 (Law.Co-op 1976). However, a person who represents himself, or permits another *1076 to represent him, to anyone as a partner in an existing partnership or with others not actual partners, is liable to any such person to whom such a representation is made who has, on the faith of the representation, given credit to the actual or apparent partnership. S.C.Code Ann. § 33-41-380(1). This exception to the general rule for liability by partners by estoppel is statutorily created under the Uniform Partnership Act in the version adopted by the State of South Carolina.
Generally, partners are jointly and severally liable for everything chargeable to the partnership. S.C.Code Ann. § 33-41-370. In South Carolina, a partnership is an entity separate and distinct from the individual partners who compose it. South Carolina Tax Comm. v. Reeves, 278 S.C. 658, 300 S.E.2d 916 (1983). Therefore, plaintiffs' argument is that if the court would find that PW-Bahamas and PW-US are partners by estoppel, PW-US would be jointly and severally liable with PW-Bahamas for everything chargeable to the partnership of the two firms. Moreover, if the two partnerships are partners by estoppel, the individual partners of PW-US would then be jointly and severally liable for the negligent acts of the PW-Bahamas partnership.
Plaintiffs maintain that Price Waterhouse holds itself out to be a partnership with offices around the world. According to the plaintiffs, the U.S. affiliate makes no distinction in its advertising between itself and entities situated in foreign jurisdictions. The foreign affiliates are permitted to use the Price Waterhouse name and trademark. Plaintiffs urge the conclusion of partnership by estoppel from the combination of facts that Price Waterhouse promotes its image as an organization affiliated with other Price Waterhouse offices around the world and that it is common knowledge that the accounting firm of Price Waterhouse operates as a partnership.
Plaintiffs offer for illustration that PW-Bahamas and PW-US hold themselves out to be partners with one another, a Price Waterhouse brochure, picked up by plaintiffs' counsel at a litigation services seminar, that describes Price Waterhouse as one of the "world's largest and most respected professional organizations." The brochure states: "[O]ver 28,000 Price Waterhouse professionals in 400 offices throughout the world can be called upon to provide support for your reorganization and litigation efforts." Plaintiffs assert that assurances like that contained in the brochure cast Price Waterhouse as an established international accounting firm and that the image, promoted by PW-US, is designed to gain public confidence in the firm's stability and expertise.
However, the plaintiffs do not contend that the brochure submitted was seen or relied on by them in making the decision to invest. In addition, plaintiffs point to nothing in the brochure that asserts that the affiliated entities of Price Waterhouse are liable for the acts of another, or that any of the affiliates operate within a single partnership.
To bolster their argument, Plaintiffs sought to discover certain documents filed in a 1980 suit, entitled Cross v. Price Waterhouse, which resulted in a September 27, 1982, order. The court in Cross allegedly found that the U.S. partnership of Price Waterhouse was vicariously liable for negligence of the Bahamas firm of Price Waterhouse.
Defendant PW-US supplied copies of the relevant Cross documents which showed that the order of Judge Pratt was later vacated. Furthermore, PW-US informs the court that during the period in question in the Cross case, there were licensing agreements between the U.S. partnership and the Bahamian partnership for use of the name and trademark on which the decision was based. Such licensing agreements are no longer in existence.
PW-US points out that the South Carolina statute, which was cited by plaintiffs in support of their argument for partnership by estoppel, speaks only to the creation of liability to third-persons who, in reliance upon representations as to the existence of a partnership, "[give] credit" to that partnership. S.C.Code Ann. § 33-41-380(1) (Law.Co-op 1976). There is no evidence, neither has there been an allegation, that credit was extended on the basis of any representation of a partnership existing between PW-Bahamas and the South Carolina members of the *1077 PW-US partnership. There is no evidence of any extension of credit to the either PW-Bahamas or PW-US, by plaintiffs. Thus, the facts do not support a finding of liability for partners by estoppel under the statutory law of South Carolina.
Further, there is no evidence that plaintiffs relied on any act or statement by any PW-US partner which indicated a the existence of a partnership with the Bahamian partnership. Finally, there is no evidence, nor is there a single allegation that any member of the U.S. Partnership had anything to do with the audit letter complained of by plaintiffs, or any other act related to the investment transaction.
The court cannot find any evidence to support a finding of partners by estoppel. Therefore, the allegations of negligence against PW-Bahamas cannot serve to hold individual members of the PW-US partnership in the suit. Without PW-US' contacts with the forum, there are insufficient contacts with South Carolina for PW-Bahamas to reasonably expected to have been haled into court here.
For the reasons hereinabove stated, the court hereby grants the plaintiff's motion to amend the complaint to join the U.S. Partners of Price Waterhouse who reside in South Carolina.
Further, the court hereby grants PW-Bahamas' motion to dismiss for lack of personal jurisdiction.
Further, the court dismisses the three South Carolina partners of PW-US, and those yet ascertained, for failure to state a claim against them upon which relief can be granted.
IT IS SO ORDERED.
NOTES
[1]  Hereinafter all references to rules shall be in reference to the Federal Rules of Civil Procedure.


350 N.W.2d 563 (1984)
217 Neb. 719
STATE of Nebraska, Appellee,
v.
Alfred S. LOPEZ, Appellant.
No. 83-730.
Supreme Court of Nebraska.
June 22, 1984.
*564 Kent E. Florom, Lincoln County Public Defender, North Platte, for appellant.
Paul L. Douglas, Atty. Gen., and Sharon M. Lindgren, Asst. Atty. Gen., Lincoln, for appellee.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
*565 WHITE, Justice.
This is the second appearance of this case in this court. In State v. Lopez, 215 Neb. 65, 337 N.W.2d 130 (1983), we affirmed the conviction of Lopez for the offenses of second degree sexual assault, Neb.Rev.Stat. § 28-320(1)(a) (Reissue 1979), and of second degree assault, Neb. Rev.Stat. § 28-309(1) (Reissue 1979). However, we determined that the flat sentence of 10 years was an improper application of the enhanced penalty statute, Neb. Rev.Stat. § 29-2221 (Reissue 1979), and remanded for resentencing. See State v. Ellis, 214 Neb. 172, 333 N.W.2d 391 (1983). On remand, the district court sentenced Lopez to a term of from 5 to 15 years for the sexual assault and a consecutive term of from 1 to 3 years for second degree assault.
Lopez appeals, and assigns a single error: "The District Court of Lincoln County, Nebraska, erred in resentencing the Appellant to a potentially longer term of imprisonment." (Emphasis supplied.) Brief for Appellant at 2.
The propriety of imposing an increased sentence after an appeal has been considered by this court recently in State v. Beach, 215 Neb. 213, 221-22, 337 N.W.2d 772, 777-78 (1983), where we said:
Under the decision in [North Carolina v.] Pearce [395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656] it is clearly improper for a trial court to sentence a defendant to a greater sentence after appeal and retrial simply because the defendant exercised his right to appeal.
It must be pointed out that the Court in Pearce also stated: "We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's `life, health, habits, conduct, and mental and moral propensities.' Williams v. New York, 337 U.S. 241, 245 [69 S.Ct. 1079, 93 L.Ed. 1337 (1949)]. Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources." (Emphasis supplied.) Id. at 723 [89 S.Ct. at 2079].
And, finally: "In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." Id. at 726 [89 S.Ct. at 2081].
It seems, by the decision in Pearce, the trial court in its discretion could increase the defendant's sentence without violating his due process rights, if such action was justified by reasons affirmatively appearing in the record.
It is apparent from the record, and not disputed by the parties, that no new or additional information concerning either the facts of the offenses or adverse information concerning other past offensive conduct was presented to the trial judge at the resentencing hearing. Therefore, under State v. Beach, supra, the court erred when resentencing Lopez if the term to which he was resentenced was longer than that originally imposed. We conclude that it was, and remand for the imposition of a new sentence.
We first observe that § 29-2221, under which Lopez was originally sentenced, does not create a new offense, but is designed to enhance penalties for repetitive criminal behavior. Davis v. O'Grady, 137 Neb. 708, *566 291 N.W. 82 (1940). We further observe that under § 29-2221 the range of sentence allowed is "not less than ten nor more than sixty years." The difficulty arises due to the fact that Lopez was convicted of two felonies, second degree sexual assault and second degree assault, but he was sentenced to only one 10-year term of imprisonment. The trial court's order does not detail to which of the two felony convictions the sentence applies. We assume that the trial court sentenced Lopez to 10 years on each count, with the sentences to run concurrently. As such, the 10-year term originally imposed on Lopez constituted both the minimum and maximum terms for the purposes of parole eligibility and mandatory release date. Neb.Rev.Stat. § 83-1,107 (Reissue 1981).
Under the consecutive sentences imposed by the trial court upon resentencing, the maximum term is 18 years. This is an increased sentence, prohibited by State v. Beach, supra, and must be set aside. The sentences are vacated and the cause is remanded to the district court for the imposition of any lawful sentence wherein the maximum term does not exceed 10 years, with credit for time served awaiting or serving the previous sentences.
REMANDED WITH DIRECTIONS.


507 F.2d 517
7 ERC 1268
LEAGUE TO SAVE LAKE TAHOE et al., Plaintiffs-Appellants,v.TAHOE REGIONAL PLANNING AGENCY et al., Defendants-Appellees.
No. 73-3611.
United States Court of Appeals, Ninth Circuit.
Nov. 22, 1974, Certiorari Denied March 17, 1975, See 95S.Ct. 1398.

1
Coleman A. Blease of Karlton, Blease & Vanderlaan (argued), Sacramento, Cal., for plaintiffs-appellants.

2
Claire H. Greve (argued), of Johnson, Greve & Clifford, Sacramento, Cal., Forrest A. Plant (argued), Sacramento, Cal., for defendants-appellees.

3
Before KOELSCH and CHOY, Circuit Judges, and RENFREW,* District judge.

OPINION
RENFREW, District Judge:

4
In 1968 the states of California and Nevada entered into a compact to create a regional agency with extensive powers to regulate and control development within the Lake Tahoe Basin in order to protect the natural resources and ecological balance of the area.1  In December of 1969 Congress gave its consent to the compact as provided for in Article I, 10, cl. 3 of the United States Constitution.2

5
The Tahoe Regional Planning Compact ('Compact') created Tahoe Regional Planning Agency ('TRPA') and charged it with responsibility for developing within ninety days a regional interim plan and, within eighteen months, a regional plan which would reflect a wide variety of economic, environmental and social considerations.  The Compact also directed the TRPA to adopt all ordinances, rules, regulations and policies necessary to effectuate the regional interim plan and the regional plan.

6
The League to Save Lake Tahoe, the Sierra Club and two individuals who reside in the Tahoe area ('appellants') brought this action for declaratory and injunctive relief alleging, basically, that defendant TRPA has failed to comply with the legal requirements of the Compact.  They contend that TRPA has failed to adopt a regional plan as required by the Compact, has failed to adopt certain implementing ordinances mandated by the Compact, has adopted other ordinances which are defective, and has failed to prepare a detailed environmental analysis as required by the Compact.  In particular, appellants charge that defendant TRPA has granted 'approval'3 to the development projects of defendants Thomas Raley, Park Cattle Company and Harvey's Wagon Wheel, Inc., in violation of the Compact.

7
Jurisdiction in the district court was predicated solely on 28 U.S.C. 1331(a).4  On defendants' motion, the District Court dismissed the action without prejudice on the ground that it lacked jurisdiction over the subject matter of plaintiffs' claims.  Appellants now appeal that determination.

8
The appeal here presents but a single issue, yet one of first impression: whether a federal court has original jurisdiction over this suit as one arising under the Constitution, laws or treaties of the United States.  For the reasons developed in this opinion, we hold that it does, and we reverse the decision below.

9
Appellants advance two arguments in support of their contention that the construction of a Congressionally sanctioned interstate compact is a matter of federal law.  First, they argue that Congressional consent transforms the Compact into a law of the United States.  Second, they urge that the construction of an interstate compact requires the application of federal 'common law' which is law of the United States within the meaning of 1331(a).  Because we agree with the first argument asserted by appellants, we have no occasion to consider the second.

10
For this case to be within the purview of 1331(a), a right or immunity created by the Constitution or laws of the United States must be an essential element of plaintiffs' claim.5  The gravamen of the complaint is the alleged failure of TRPA to comply with the requirements of the Compact in various particulars.  To determine the nature and scope of these requirements requires a construction of the Compact.  Such construction, therefore, forms an essential element of the complaint.  Thus, if the Compact can properly be characterized as a 'law' of the United States, then federal jurisdiction is established.

11
Counsel have not cited nor has independent research revealed any decision by the Supreme Court or any of the Circuit Courts of Appeals which deals directly with this issue.6

12
The Supreme Court has, however, in a series of cases considered the status of interstate compacts in connection with its certiorari jurisdiction.  See Delaware River Com'n v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287 (1940); Dyer v. Sims, 341 U.S. 22, 71 S.Ct. 557, 95 L.Ed. 713 (1951).  In these cases the Court addressed the question of whether a claim based on an interstate compact is cognizable under the provision for Supreme Court review, by writ of certiorari, of judgments of the highest state court where 'any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of * * * the United States.'  28 U.S.C. 1257(3).  In Colburn the Court unequivocally answered this question in the affirmative, holding that 'the construction of such a (bi-state) compact sanctioned by Congress by virtue of Article I, 10 cl. 3 of the Constitution, involves a federal 'title, right, privilege or immunity' which when 'specially set up or claimed' in a state court may be reviewed here on certiorari under 237(b) of the Judicial Code (the predecessor of 1257(3)).'  310 U.S. at 427, 60 S.Ct. at 1041.  The Court has reaffirmed this holding in Dyer, 241 U.S. at 26, 71 S.Ct. 557, 95 L.Ed. 713.

13
In reaching this interpretation of the certiorari statute, Colburn and its progeny have firmly established that the construction of a compact, by virtue of Congressional consent, presents a federal question.  This result has its genesis in the case of Pennsylvania v. The Wheeling & Belmont Bridge Co., 54 U.S.  (13 How.) 518, 15 L.Ed. 435 (1851), wherein the court stated that 'this compact (the Virginia-Kentucky Compact of 1789) by the sanction of Congress, has become a law of the Union.  What further legislation can be desired for judicial action?' 54 U.S. at 565, 15 L.Ed. 435.7  Although later decisions created considerable doubt as to the continued validity of that doctrine, Colburn has put these doubts to rest.8

14
While the Court in Colburn felt it unnecessary to clearly articulate the basic premise of its decision, we conclude after careful investigation that the result there was based upon the implicit finding that the interstate compact involved was a 'statute of the United States' within the meaning of  28 U.S.C. 1257(3).  Neither logic nor policy justifies a different interpretation of the substantially similar language in 28 U.S.C. 1331(a).9  Therefore, a case involving the construction of an interstate compact which requires a judicial determination of the nature and scope of obligations set forth therein 'arises' under the 'laws' of the United States within the menaing of 1331(a).10

15
We do not, of course, ignore the significant differences between original jurisdiction in the federal courts and certiorari jurisdiction in the Supreme Court.  The test for determining whether a case involves substantial federal issues at the very outset of litigation differs from the test for making that determination after the case has passed through a state judicial system.  For this reason in cases in which there is a claim of original jurisdiction, there is the Gully requirement that the federal question form an essential element' of the plaintiff's complaint.11  No such requirement exists with respect to certiorari jurisdiction.  There it is the record in the state tribunal and not the original complaint which must support the claim of a federal question.  See Mishkin, The Federal Question in the District Courts,53 Colum.L.Rev. 157, 164-165.  To erect, in addition, a distinction between what constitutes a federal law for certiorari purposes and what constitutes a federal law for original jurisdiction purposes would be artificial, unnecessary and irrational; we decline, therefore, to do so.  The Compact must be deemed a law of the United States under Colburn and the requirements of Gully have been satisfied in this case.  Therefore, jurisdiction should have been sustained in the district court under 1331(a).

16
Furthermore, post-Colburn decisions of the Supreme Court and strong policy considerations support this result.  Appellees have argued that the need for a final arbiter of compact disputes requires only certiorari jurisdiction, and that the desirability of having state courts decide matters of state law, such as zoning and land use control, before that arbitration is undertaken precludes original jurisdiction in the federal courts.12  We disagree.  The Supreme Court has made it clear that the construction of an interstate compact is a matter of federal law, not the law of the party states.  Petty v. Tennessee-Missouri Bridge Com'n, supra, 359 U.S. at 279-280, 79 S.Ct. 785, 3 L.Ed.2d 804.13  State court consideration, therefore, cannot constitute a necessary predicate to proper construction of a compact.

17
Mereover, interstate compacts frequently involve not only local concerns of the states involved, but also important national interests.  Dyer v. Sims, supra, 341 U.S. at 27, 71 S.Ct. 557, 95 L.Ed. 713.  See also Pettey, supra, 359 U.S. at 282, n. 1, 79 S.Ct. 785, 3 L.Ed.2d 804.  The instant Compact deals with much more than mere local concerns such as zoning and land use.  It addresses the environmental problems of an area not subject to the control of a single state.  In addition to the specific Congressional concern for the subject of this Compact, evidenced by the statement of purpose accompanying the consent,14 the national legislature has with increasing frequency evinced a strong interest in solving environmental problems, which by their very nature transcend state boundaries, through interstate cooperation.  See, e.g., The Clean Air Act, 42 U.S.C. 1857 et seq., specially 1857 and 1857a, and the National Environmental Policy Act, 42 U.S.C. 4331 et seq.15  The result reached here serves those important national interests.

18
It is therefore most appropriate to sustain jurisdiction under 18 U.S.C. 1331(a) over a case involving the construction of the Tahoe Regional Planning Compact.

19
Accordingly, we reverse the decision below and remand for further proceedings consistent with this opinion.

*
 The Honorable Charles B. Renfrew, United States District Judge, Northern District of California Sitting by designation

1
 Cal.Govt.Code 66800 et seq.  (West Supp. 1974), Nev.Rev.Stat. 277.190 et seq.  (1971).  Article I of the Compact expresses the joint concern over the area and establishes the purposes of the compact:
'(a) It is found and declared that the waters of Lake Tahoe and other resources of the Lake Tahoe region are threatened with deterioration or degeneration, which may endanger the natural beauty and economic productivity of the region.
'(b) It is further declared that by virtue of the special conditions and circumstances of the natural ecology, developmental pattern, population distribution and human needs in the Lake Tahoe region, the region is experiencing problems of resource use and deficiencies of environmental control.
'(c) It is further found and declared that there is a need to maintain an equilibrium between the region's natural endowment and its manmade environment, to preserve the scenic beauty and recreational opportunities of the region, and it is recognized that for the purpose of enhancing the efficiency and governmental effectiveness of the region, it is imperative that there be established an areawide planning agency with power to adopt and enforce a regional plan of resource conservation and orderly development, to exercise effective environmental controls and to perform other essential functions, as enumberated in this title.

2
 Article I, 10 Cl. 3 of the United States Constitution provides:
'No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement of Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.'
The consent was given in Pub.L. 91-148, 83 Stat. 360 (1969), an act which contained, in addition to the consent and the language of the Compact, a general statement of Congressional purpose and several specific conditions imposed by Congress.  Appellants' complaint did not raise any question as to the construction or application of any of these Congressionally imposed conditions.

3
 Affirmative approval has been given only to the project of defendant Raley.  TRPA, by a split vote, failed to approve the project of defendants Park Cattle Company and Harvey's Wagon Wheel.  Appellees contend that by operation of Article VI(k) of the Compact these projects may be deemed approved.  That article provides:
'Whenever under the provisions of this article or any ordinance, rule, regulation or policy adopted pursuant thereto, the agency is required to review or approve any proposal, public or private, the agency shall take final action, whether to approve, to require modification or to reject such proposal, within 60 days after such proposal is delivered to the agency.  If the agency does not take final action within 60 days, the proposal shall be deemed approved.'
Appellants urge that a split vote on these projects cannot constitute failure to take 'final action' within the meaning of Article VI(k) and, alternatively, that if those projects would be deemed approved, they violate the provisions of the Compact.

4
 28 U.S.C. 1331(a) provides:
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.'

5
 Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936)

6
 Several district court decisions have been cited as suthority that 1331(a) jurisdiction does not lie in cases involving interstate compacts.  We have reviewed these decisions carefully, and we do not find them to be persuasive and, in some cases, even apposite to the precise issue before us
In Delaware River Joint Toll Bridge Com'n v. Stults, 146 F.Supp. 241 (D.N.J.1956), plaintiff's claims were for money had and received; the compact was involved only because it was the legislation which had created the plaintiff Commission.  Plaintiff's claims thus did not 'arise under' the compact and regardless of the federal or nonfederal character of that compact, jurisdiction under 1331(a) would have been improper.  Relying upon Gully v. First National Bank, 299 u.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 the court held that since the respective rights of the parties were to be determined by local law, no federal question was presented.
In Port Authority Bondholder Pro.  Comm. v. Port of N.Y. Auth., 270 F.Supp. 947 (S.D.N.Y.1967), the district court dismissed an action involving the construction of an interstate compact, concluding that such a claim did not arise under a law of the United States within the meaning of 1331(a).  Although the Court of Appeals for the Second Circuit, per Friendly, J., did not reach this question, it indicated that the District Court may have erred in its conclusion.  387 F.2d 259, 261 n. 1 (2d Cir. 1967).  The Court of Appeals found that the allegations in that case concerning actions of the Port Authority beyond the scope of Congressional consent to the compact gave rise to a claim under the Constitution.  The court also found, however, that the constitutional claim was insubstantial in light of prior adverse decisons of the United States Supreme Court and affirmed the district court on that basis.  387 F.2d at 262-263.
In Kheel v. Port of New York Authority, 331 F.Supp. 118, 120-121 (S.D.N.Y.1971), aff'd on other grounds, 457 F.2d 46 (2d Cir. 1972), cert. denied, 409 U.S. 983, 93 S.Ct. 324, 34 L.Ed.2d 248 (1972), the district court dismissed a claim involving th same compact but did so on the grounds adopted by the Second Circuit in Bondholders.
In Rivoli Trucking Corp. v. American Export Lines, 167 F.Supp. 937 (E.D.N.Y.1958), the court found no federal question jurisdiction under 1331(a) in a compact case, but the decision contains an alternate holding that the plaintiffs' claims were within the exclusive jurisdiction of the Federal Maritime Board.  167 F.Supp. at 940.  Further, in reaching its conclusion on 1331(a) jurisdiction, the Court relied primarily on Hinderlider v. La Plata River and Cherry Creek Ditch Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202 (1938).  See note 8, infra, for a discussion of the impact of Delaware River Com'n v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287 (1940) upon Hinderlider.
Of the district court opinions which have been examined, only one, in dictum, cogently argues in any detail against 1331(a) jurisdiction in a case arising under an interstate compact, and it predates the critically important decision of the Supreme Court in Petty v. Tennessee-Missouri Com'n, 356 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959).  The case, Delaware River Joint Toll Bridge Com'n v. Miller, 147 F.Supp. 270 (E.D.Pa.1956), involved the compact considered in Stults, supra, and presented similar claims for money had and received.  The decision, like Stutes, rests on the failure of the complaint to satisfy the requirements of Gully v. First National Bank.  See 147 F.Supp. at 274.  Judge Van Dusen, the author of the opinion, went on to indicate that, Gully problems aside, rights asserted under an interstate compact lack the requisite federal character to sustain jurisdiction under 1331(a).  The subsequent decision of the Supreme Court in Petty v. Tennessee-Missouri Com'n, supra, holding that the construction of a compact sanctioned by Congress is a matter of federal law, had, however, eroded the major premise of Judge Van Dusen's argument.  See notes 11 and 12, infra, for a full discussion of that argument and the effect of Petty upon it.
In contrast to the authorities cited by appellees, appellants rely upon a single case which they argue supports their position.  That case, involving the very bi-state compact here in issue, sustained jurisdiction under 28 U.S.C. 1331(a).  Brown v Tahoe Regional Planning Agency, Civil No. R12773 (D.Nev. May 23, 1973).  That case is not persuasive here because it involved a claim for inverse condemnation clearly arising under the Firth Amendment.  The court did note, however, that 'the case arises under the Constitution and laws of the Unied States, involving the interpretation and application of Public Law 91-148 (The Tahoe Regional Planning Compact) and of the Fifth Amendent to the Constitution of the United States.  Brown, supra, at p. 2.

7
 The Virginia-Kentucky Compact provided that 'the use and navigation of the River Ohio, so far as the territory of the proposed state (Kentucky), or the territory that shall remain within the limits of this Commonwealth (Virginia) lies thereon, shall be free and common to the citizens of the United States.'  54 U.S. at 564-565, 15 L.Ed. 435.  Wheeling was a suit by Pennsylvania to enjoin the construction of a bridge in Virginia across the Ohio River.  The Court first noted that, to constitute an actionable nuisance, the bridge had to be found in violation of state or federal law.  Since the State of Virginia had expressly approved the construction of the bridge, the only source of a possible violation was federal law.  The court concluded that the Virginia- Kentucky Compact of 1789 was, by virtue of congressional consent, a federal law, and that the bridge contravened the provision of that compact set forth above.  The requested relief was therefore granted.  54 U.S. at 578, 15 L.Ed. 435

8
 The Court in Colburn did not explicitly set forth a doctrinal basis for its conclusion that a claim based on the construction of an interstate compact involves a federal right, title or immunity for purposes of sustaining jurisdiction in certiorari cases from state courts.  Appellees strenuously argue that Colburn does not rest on the law of the Union doctrine but rather upon the applicability of federal common law to the construction of certain compacts.  In support of this interpretation of Colburn, they rely on People v. Central Railroad, 79 U.S. 455, 20 L.Ed. 458 (1872), and Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202 (1938).  This reliance is misplaced.  Clearly both cases rejected the law of the Union doctrine, 79 U.S. at 455, 20 L.Ed. 458 and 304 U.S. at 109, 58 S.Ct. 803, 82 L.Ed. 1202.  It is equally clear, however, from a careful reading of Colburn that Colburn disapproves both holdings on this point.  The Court said in Colburn: 'In People of New York v. Central Railroad * * * jurisdiction of this Court to review a judgment of a state court construing a compact between states was denied on the ground that the Compact was not a statute of the United States and that the construction of the Act of Congress giving consent was in no way drawn in question, nor was any right set up under it.  This decision has long been doubted, see Hinderlider v. La Plata Co., 304 U.S. 92, 110, note 12, and we now conclude that the construction of such a compact sanctioned by Congress by virtue of Article I 10 Clause 3 of the Constitution, involves a federal 'title, right, privilege, or immunity' which when 'specially set up or claimed' in a state court may be reviewed here on certiorari * *.'  310 be reviewed here on certiorari * * *.'  310
It can hardly be disputed that Colburn has expressly overruled Central Railroad on the question of the viability of the law of Union doctrine.
In arriving at our decision we do not overlook that the law of the Union doctrine may be said, unde some circumstances, to present certain theoretical problems, e.g., impermissible delegation of congressional legislative power to the states in cases where Congressional consent precedes the compact.  For an exhaustive analysis of this subject, see Engdahl, Construction of Interstate Compacts: A Questionable Federal Question, 51 Va.L.Rev. 987, 1013-1026 (1965).  The possibility, however, that there may be problems in potential cases does not alter our duty to follow the mandate of Colburn.

9
 In pertinent part the two statutes provide:
'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
'(3) By writ of certiorari, * * * where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties, or statutes of, or commission held or authority exercised under, the United states .'  28 U.S.C. 1257.
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy * * * arises under the Constitution, laws, or treaties of the United States.'  28 U.S.C. 1331(a).
Both an able commentator and an eminent jurist have concluded that the Colburn line of decisions establishes the propriety of 1331(a) jurisdiction over claims arising under an interstate compact.  See Engdahl, Construction of Interstate Compacts: A Questionable Federal Question, supra, 51 Va.L.Rev. at 1026, and the opinion of Judge Henry J. Friendly in Port Authority Bondholders Pro.  Comm. v. Port of N.Y. Auth., supra, 387 F.2d at 261 n. 1.

10
 See the text of the opinion accompanying note 5, supra

11
 The cases which discuss the distinction between 1257(3) jurisdiction and 1331(a) jurisdiction confirm this view.  See Jordine v. Walling, 185 F.2d 662 (3d Cir. 1950) and Doucette v. Vincent, 194 F.2d 834 (1st Cir. 1952).  Both cases involved the question whether 1331(a) jurisdiction exists over a claim for maintenance and cure based on general maritime law, as distinguished from a suit in admiralty brought under the admiralty rules.  The cases reached contrary conclusions on this point and the controversy was resolved against 1331(a) jurisdiction in Romero v. International Term.  Co., 358 U.S. 354, 359-380, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959).  In the course of resolving the question concerning general maritime law, which is of course not relevant here, both lower courts noted the distinction between certiorari and original jurisdiction over claims based on federal law.  Analysis of those cases reveals, however, that this distinction does not rest upon differing constructions of the two statutes as to what constitutes a law of the United States; rather it rests upon the differing stages of litigation at which the jurisdictional determination must be made, a difference to which the Gully requirement responds.  Jordine, supra, 185 F.2d at 668; Doucette, supra, 194 F.2d at 845-846

12
 Perhaps the most articulate statement of this position is contained in Judge Van Dusen's opinion in Delaware River Joint Toll Bridge Com'n v. Miller, supra, 147 F.Supp. at 274 nn. 14 and 16.  That the opinion predates Petty, supra, considerably diminishes the force of the arguments made therein.  See note 13, infra.  Moreover, Judge Van Dusen relied heavily upon the distinction between 1257(3) jurisdiction and 1331(a) jurisdiction made in Jordine, supra, and also considered in Doucette, supra.  As we pointed out in note 11, supra, those cases do not support the conclusion reached in Miller

13
 Petty represents a significant clarification of prior law on this point.  Colnurn and Dyer held that a claim based on an interstate compact involved a federal right, title or immunity.  In Dyer, however, Mr. Justice Frankfurter, speaking for the Court, intimated that this characterization did not contemplate that federal law would supplant state law as the source of the governing rules of decision in a compact case; rather that the Supreme Court would be the final expositor and arbiter of the applicable state laws.  341 U.S. at 28-31, 71 S.Ct. 557, 95 L.Ed. 713.  In Dyer the Supreme Court of Appeals of West Virginia had held that certain provisions of the West Virginia Constitution prohibited West Virginia's participation in the Ohio River Valley Water Sanitation Compact.  The Supreme Court concluded that 'the Supreme Court of Appeals of the State of West Virginia is, for exclusively State purposes, the ultimate tribunal in construing the meaning of her Constitution.'  341 U.S. at 28, 71 S.Ct. at 561.  The Court went on, however, to conclude that, insofar as a state constitution affected obligations under an interstate compact, the highest state court was not the ultimate tribunal in construing that constitution and reversed on the basis of its own construction of the applicable provisions of the West Virginia Constitution.  'A State cannot be its own ultimate judge in a controversy with a sister State.  To determine the nature and scope of obligations as between States, whether they arise through the legislative means of compact or the 'federal common law' governing interstate controversies (Hinderlider v. La Plata Co., 304 U.S. 92, 110 (58 S.Ct. 803, 811, 82 L.Ed. 1202)), is the function and duty of the Supreme Court of the Nation.  Of course every deference will be shown to what the highest court of a State deems to be the law and policy of its State, particularly when recondite or unique features of local law are urged.  Deference is one thing; submission to a State's own determination of whether it has undertaken an obligation, what that obligation is, and whether it conflicts with a disability of the State to undertake it is quite another.'  341 U.S. at 28, 71 S.Ct. at 560
Petty involved the question of whether a 'sue and be sued' clause in an interstate compact constituted a waive of the party states' immunity under the Eleventh Amendment.  The court conceded that under the applicable decisions of both the party states.  such a clause would not constitute a waiver of immunity but concluded, by reference to the Congressional intent, that the clause constituted such a waiver.  359 U.S. at 279-281, 79 S.Ct. 785, 3 L.Ed.2d 804.  Mr. Justice Frankfurter strongly dissented on the basis of his opinion in Dyer.  359 U.S. at 284-285, 79 S.Ct. 785, 3 L.Ed.2d 804.  Thus, any rights or obligations created by an interstate compact are federal, not state, in character.  As a result, there can be no doubt of the propriety of original jurisdiction in the federal courts in the case before us, despite the legitimate and far-reaching interests of the party states.  See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 674-679, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974).

14
 The text of that statement is as follows:
'Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That in order to encourage the wise use and conservation of the waters of Lake Tahoe and the resources of the area around said lake, the consent of the Congress is hereby given to the Tahoe regional planning compact * * *.  Public Law 91-148, December 18, 1969.'

15
 In pertinent part the Clean Air Act provides:
'(a) The Congress finds--
'(1) that the predominant part of the Nation's population is located in its rapidly expanding metropolitan and other urban areas, which generally cross the boundary lines of local jurisdictions and ofter extend into two or more States;
'(2) that the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation;
'(4) that Federal financial assistance and leadership is essential for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution.
'(b) The purposes of this subchapter are--
'(1) to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population;
'(4) to encourage and assist the development and operation of regional air pollution control programs.'  42 U.S.C. 1857.
'(a) The (Administrator) shall encourage cooperative activities by the States and local governments for the provention and control of air pollution; encourage the enactment of improved and, so far as practicable in the light of varying conditions and needs, uniform State and local laws relating to the prevention and control of air pollution; and encourage the making of agreements and compacts between States for the prevention and control of air pollution.
'(c) The consent of the Congress is hereby given to two or more States to negotiate and enter into agreements or compacts, not in conflict with any law or treaty of the United States, for (1) cooperative effort and mutual assistance for the prevention and control of air pollution and the enforcement of their respective laws relating thereto, and (2) the establishment of such agencies, joint or otherwise, as they may deem desirable for making effective such agreements or compacts.  No such agreement or compact shall be binding or obligatory upon any State a party thereto unless and until it has been approved by Congress.  It is the intent of Congress that no agreement or compact entered into between States after November 21, 1967, which relates to the control and abatement of air pollution in an air quality control region, shall provide for participation by a State which is not included (in whole or in part) in such air quality control region.'  42 U.S.C. 1857a.
The Congressional Statement of Policy in the National Environmental Policy Act specifies:
'(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.'  42 U.S.C. 4331.
The Act concerns itself primarily with the activities of the federal government.  The reference, however, to cooperation with state and local governments in 4331 and the awareness, reflected in the legislative history, that many, if not most, environmental problems cross state boundaries (see House Report 91-378, 1969 U.S. Congressional and Administrative News, p. 2751 at 2757, 2758) indicate the national importance of, and interest in, interstate attempts to address environmental concerns.


           Case: 13-13651   Date Filed: 02/26/2015   Page: 1 of 10

                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13651
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:13-cv-14061-KMM

ALBERT T. OWENS,

                                                            Plaintiff-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (February 26, 2015)

Before MARCUS, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
              Case: 13-13651      Date Filed: 02/26/2015    Page: 2 of 10

      Albert Owens, a federal prisoner proceeding pro se and in forma pauperis,

appeals the dismissal of his initial complaint for failure to state a claim pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii) against the Secretary of the Florida Department of

Corrections (FDOC). Owens also appeals the district court’s subsequent order

denying him leave to amend his complaint. On appeal, Owens argues that his

initial complaint alleged facts sufficient to state claims for violations of the

Americans with Disabilities Act (ADA), Rehabilitation Act, Eighth Amendment,

and Fourteenth Amendment because the prison’s staff was deliberately indifferent

to his medical needs and did not make reasonable accommodations for him.

Owens further contends that the addition of extra facts and defendants in his

proposed amended complaint would have cured any defects in his initial

complaint, and, therefore, the district court abused its discretion when it denied

him leave to amend his complaint.

      After careful review of the pleadings and the district court order, and after

consideration of the parties’ briefs, we conclude that the district court did not err in

dismissing Owens’s initial complaint or abuse its discretion when it denied him

leave to amend. Accordingly, we affirm.

                                           I.

      We address Owens first argument that his initial complaint alleged facts

sufficient to state valid claims. We review de novo a district court’s dismissal for

                                           2
              Case: 13-13651      Date Filed: 02/26/2015    Page: 3 of 10

failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Hughes v. Lott, 350

F.3d 1157, 1159–60 (11th Cir. 2003). Article III of the Constitution limits our

jurisdiction to the consideration of cases and controversies. U.S. Const. art. III, §

2; see also Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001) (per

curiam). “If events that occur subsequent to the filing of a lawsuit or an appeal

deprive the court of the ability to give the plaintiff or appellant meaningful relief,

then the case is moot and must be dismissed.” Al Najjar, 273 F.3d at 1336.

Prisoners’ claims for injunctive or declaratory relief regarding prison conditions

generally become moot when the prisoner transfers to another prison. See Wahl v.

McIver, 773 F.2d 1169, 1173 (11th Cir. 1985) (per curiam). There is a narrow

exception to the doctrine of mootness when a challenged action is capable of being

repeated and when it evades review, but it only applies when: “(1) there is a

reasonable expectation or a demonstrated probability that the same controversy

will recur involving the same complaining party, and (2) the challenged action is in

its duration too short to be fully litigated prior to its cessation or expiration.” Al

Najjar, 273 F.3d at 1336 (internal quotation marks omitted).

      Here, we conclude that Owens’s claims set forth in his initial complaint are

moot since his initial complaint requested injunctive relief concerning conditions

in a prison at which he is no longer incarcerated. Since filing the initial complaint,

Owens has transferred to Santa Rosa Correctional Institution and has not

                                            3
              Case: 13-13651    Date Filed: 02/26/2015    Page: 4 of 10

demonstrated that the challenged action falls within the narrow exception to the

mootness doctrine. A thorough review of the complaint reveals that this

challenged action is specific to policies at Martin Correctional Institution (MCI).

Because he has transferred prisons, his claims for injunctive relief no longer

present a case or controversy over which we have jurisdiction. See Wahl, 773 F.2d

at 1173.

                                         II.

      Owens also argues that the district court abused its discretion by denying

him leave to amend his complaint after his initial complaint was dismissed. We

review a district court’s denial of a motion to amend a complaint for abuse of

discretion. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004).

The district court’s underlying legal conclusion of whether an amendment to the

complaint would be futile is reviewed de novo. Corsello v. Lincare, Inc., 428 F.3d

1008, 1012 (11th Cir. 2005) (per curiam). A district court should freely grant leave

to amend a complaint when the underlying facts may be a proper subject of relief.

Hall, 367 F.3d at 1262. However, a district court may properly deny leave to

amend a complaint when the proposed amendment would be futile. Id. at 1262–

63. An amendment is futile if “the complaint as amended is still subject to

dismissal.” Id. at 1263 (internal quotation marks omitted).

                                          4
              Case: 13-13651      Date Filed: 02/26/2015    Page: 5 of 10

      “The language of section 1915(e)(2)(B)(ii) tracks the language of Federal

Rule of Civil Procedure 12(b)(6), and we will apply Rule 12(b)(6) standards in

reviewing dismissals under section 1915(e)(2)(B)(ii).” Mitchell v. Farcass, 112

F.3d 1483, 1490 (11th Cir. 1997). “To survive a motion to dismiss [under Rule

12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). A claim is

facially plausible when “the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. We construe pro se complaints liberally; however, they still must

allege factual allegations that “raise a right to relief above the speculative level.”

Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014) (internal quotation marks

omitted).

      Under Title II of the ADA, public entities are prohibited from discriminating

against individuals with disabilities or denying them services because of their

disabilities. See 42 U.S.C. § 12132. “Only public entities are liable for violations

of Title II of the ADA.” Edison v. Douberly, 604 F.3d 1307, 1308 (11th Cir.

2010). State prisons are public entities for purposes of the ADA. Pa. Dep’t of

Corr. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 1954–55 (1998). The

standard for determining liability under the Rehabilitation Act is the same as the

                                           5
                Case: 13-13651   Date Filed: 02/26/2015   Page: 6 of 10

standard under the ADA. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005)

(per curiam).

      To state a claim of discrimination under Title II, a claimant must prove:

             (1) that he is a qualified individual with a disability; and
             (2) that he was either excluded from participation in or
             denied the benefits of a public entity’s services,
             programs, or activities, or was otherwise discriminated
             against by the public entity; and (3) that the exclusion,
             denial of benefit, or discrimination was by reason of the
             plaintiff’s disability.

Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th Cir. 2007). Public

entities must make reasonable modifications to their policies, practices, or

procedures when necessary to avoid discrimination on the basis of a disability

unless making the modifications would “fundamentally alter the nature of the

service[s], program[s], or activit[ies].” 28 C.F.R. § 35.130(b)(7).

      A disability is “a physical or mental impairment that substantially limits one

or more major life activities,” such as caring for oneself, concentrating, or

thinking. 42 U.S.C. § 12102(1)(A), (2)(A). A qualified individual with a disability

is someone who has a disability and “meets the essential eligibility requirements

for the receipt of services or the participation in programs or activities provided by

a public entity,” with or without reasonable modifications. Id. § 12131(2).

      A claimant is entitled to relief under 42 U.S.C. § 1983 if he or she can prove

that a person acting under color of state law deprived him or her of a federal right.

                                          6
              Case: 13-13651     Date Filed: 02/26/2015    Page: 7 of 10

Almand v. DeKalb Cnty., 103 F.3d 1510, 1513 (11th Cir. 1997). Under the Eighth

Amendment, state actors are prohibited from inflicting cruel and unusual

punishment, such as punishments that are “totally without penological

justification.” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392, 2399

(1981) (internal quotation marks omitted). Courts examine whether prison

officials “acted with deliberate indifference to the inmates’ health or safety.” Hope

v. Pelzer, 536 U.S. 730, 737–38, 122 S. Ct. 2508, 2514 (2002) (internal quotation

marks omitted).

      To prove deliberate indifference in violation of the Eighth Amendment, a

claimant must show “(1) a serious medical need; (2) the defendant[’s] deliberate

indifference to that need; and (3) causation between that indifference and the

[claimant’s] injury.” Gilmore v. Hodges, 738 F.3d 266, 273–74 (11th Cir. 2013)

(internal quotation marks omitted); see also Estelle v. Gamble, 429 U.S. 97, 104,

97 S. Ct. 285, 291 (1976) (holding that a deliberate indifference to a prisoner’s

medical needs violates the Eighth Amendment). “A plaintiff must first show an

objectively serious medical need [that], if [left] unattended, pose[s] a substantial

risk of harm, and that the official’s response to that need was objectively

insufficient.” Gilmore, 738 F.3d at 274. An objectively serious medical need “is

one that has been diagnosed by a physician as mandating treatment or one that is so

obvious that even a lay person would easily recognize the necessity for a doctor’s

                                           7
              Case: 13-13651      Date Filed: 02/26/2015     Page: 8 of 10

attention.” Id. (internal quotation marks omitted). “Second, the plaintiff must

establish that the official acted with deliberate indifference, i.e., the official

subjectively knew of and disregarded the risk of serious harm, and acted with more

than mere negligence.” Id. Knowledge can be inferred from circumstantial

evidence, such as the fact that the risk was obvious, Goebert v. Lee Cnty., 510 F.3d

1312, 1327 (11th Cir. 2007), and “[a]n Eighth Amendment violation may also

occur when state officials knowingly interfere with a physician’s prescribed course

of treatment” constituting deliberate indifference, Bingham v. Thomas, 654 F.3d

1171, 1176 (11th Cir. 2011) (per curiam).

      Here, the district court did not abuse its discretion in denying Owens leave

to amend his complaint because Owens’s proposed amendments were futile. See

Hall, 367 F.3d at 1263. Since only public entities may be liable under the ADA,

Owens fails to state ADA claims against Crews, Bateman, Sheffield, and Lawrence

in their individual capacities. See Edison, 604 F.3d at 1308. Owens’s claims

against them in their official capacities are simply claims against the FDOC. See

Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991) (noting that suits

against state officials in their official capacity should be treated as suits against the

State).

      However, Owens’s ADA claim against the FDOC is not plausible on its face

either. Even if we were to assume that Owens is a qualified individual with a

                                            8
              Case: 13-13651     Date Filed: 02/26/2015   Page: 9 of 10

disability, the proposed amended complaint did not demonstrate that Owens was

excluded from or denied the benefits of FDOC services because of his disability.

See Bircoll, 480 F.3d at 1083. The documents Owens attached to his proposed

amended complaint reveal that he received medical services for the purpose of

treating his disability. Clearly then, no reasonable modification was necessary to

avoid discrimination against Owens on the basis of a disability. As demonstrated

by his Individualized Service Plan (ISP), Owens had access to medical services

and used those services. Because the proposed amended complaint did not state a

plausible ADA claim, it also failed to state a claim under the Rehabilitation Act.

See Ellis, 432 F.3d at 1326.

      Similarly, the proposed amended complaint did not allege facts supporting a

plausible claim for relief for a violation of the Eighth Amendment either.

Accepting Owens’s stated facts as true, it is clear that Owens had an objectively

serious medical need. It is also clear that Owens’s need for mental health care was

obvious enough that even a lay person would recognize it after Owens mutilated

his arm and ingested a razor blade. See Gilmore, 738 F.3d at 274. Furthermore, he

was diagnosed with several mental disorders and prescribed treatment by a hospital

psychiatric unit and MCI health care providers. However, Owens did not allege

facts indicating that the FDOC or any of its officials’ responses to his serious

medical needs was objectively insufficient. See id. Additionally, Owens never

                                          9
              Case: 13-13651     Date Filed: 02/26/2015   Page: 10 of 10

alleged facts to establish that negative effects had occurred or potentially could

occur as a result of the limitations placed on when and where he could use his

musical therapy device.

        Finally, there is no evidence that suggests the FDOC or any of its officials

acted with deliberate indifference by knowingly interfering with Owens’s

prescribed treatment. See Bingham, 654 F.3d at 1176. While Owens notified the

FDOC, Bateman, and Lawrence through his grievance appeal that Valdes-Castillo

had orally “inform[ed] him that he would be allowed to utilize his music device

anywhere within the institution,” he provided no evidence that Valdes-Castillo’s

alleged statement was part of a prescription, or that even if it was, the prescription

was meant to last for eighteen years. Moreover, Owens was not denied readily

available treatment and he was permitted to use his music device in certain areas of

the prison. Owens was also the beneficiary of mental health evaluations and

individualized counseling. See id. Accordingly, Owens’s proposed amendments

are still subject to dismissal, and are therefore considered futile. Hall, 367 F.3d at

1263.

        AFFIRMED.

                                           10


873 F.2d 1438
Holley (Dalton L.)v.CSX Transportation, Inc.
NO. 88-8121
United States Court of Appeals,Fourth Circuit.
APR 26, 1989

1
Appeal From:  S.D.W.Va.

2
REMANDED.


45 So.3d 1113 (2010)
Malcolm PERKINS
v.
DISCOUNT BAIL BONDS, et al. or Bail Bonds Unlimited, Inc.
No. 2010-CP-1770.
Supreme Court of Louisiana.
October 15, 2010.
Denied.


                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1796
                                  ___________

Craig Morgan,                          *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
Curtis Francois; Dent Wizard           * [UNPUBLISHED]
International Corporation,             *
                                       *
            Appellees.                 *
                                  ___________

                            Submitted: October 14, 2005
                               Filed: March 2, 2006
                                ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

PER CURIAM.

       Craig Morgan sued his employers claiming overtime violations under the Fair
Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219. The district court held the
employers were exempt from the FLSA's overtime provisions as "motor private
carriers." 49 U.S.C. § 31502(b)(2). We reverse and remand for further proceedings.

       In April 1998, Craig Morgan began working as a commissioned paintless dent
repair (PDR) technician for Gandalf, LTD, an Ohio limited liability company. Curtis
Francois, a resident of St. Louis, Missouri, allegedly had an ownership interest in
Gandalf, as did Paul Thomas, an Ohio resident. In June 2001, Gandalf sold some or
all of its assets to Dent Wizard International Corporation. After the transfer, Morgan
continued to work for Dent Wizard, traveling to customers' locations in a company-
owned truck to repair dents in the exteriors of automobiles using various PDR tools
and equipment. Morgan lived in Carriere, Mississippi, but frequently worked about
thirty miles away at the Mannheim Auto Auction of Greater New Orleans in Slidell,
Louisiana, as well as at several other locations in and around New Orleans, Louisiana.

        In April 2003, Morgan sued Francois, Thomas, Gandalf, and Dent Wizard in
federal district court in Ohio alleging all four were employers required to comply with
the FLSA's overtime laws and regulations. Morgan further alleged from April 1998
through the date of suit he regularly worked more than forty hours a week, and the
defendants failed to maintain accurate records of his actual hours of work or pay him
overtime. The Ohio district court severed Morgan's claims against Francois and Dent
Wizard and transferred them to Missouri, retaining jurisdiction over the claims against
Thomas and Gandalf. After initially finding a portion of Morgan's claims time-barred
by the applicable statute of limitations, see 29 U.S.C. § 255(a) (setting forth a three-
year limitations period for willful FLSA violations and a two-year limitations period
for all other violations), the Ohio district court granted Gandalf and Thomas summary
judgment on Morgan's remaining claims concluding the employers were "motor
private carriers" under the Motor Carrier Act and therefore exempt from the FLSA's
overtime provisions. Shortly thereafter, the Missouri district court granted Francois
and Dent Wizard summary judgment on the same grounds. Morgan filed timely
appeals of both decisions.

      In this appeal, Morgan contends, inter alia, the district court erred when it
determined he transported his employers' property (i.e., the PDR tools) in interstate
commerce. More specifically, he contends the district court should have considered
his supplemental affidavit of September 3, 2004, in which he asserted none of the
PDR tools he transported to and from work sites were owned by his employers. The

                                          -2-
district court refused to consider the supplemental affidavit concluding it contradicted
Morgan's earlier affidavit and statements he made in a deposition.

      We review the district court's interpretation of the FLSA and the Motor Carrier
Act de novo. Braswell v. City of El Dorado, Ark., 187 F.3d 954, 957 (8th Cir. 1999).
"We review the district court's exclusion of evidence in a summary judgment motion
for abuse of discretion." Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir. 2001).

        The FLSA's overtime requirements do not apply to "any employee with respect
to whom the Secretary of Transportation has power to establish qualifications and
maximum hours of service pursuant to the provision of section 31502 of Title 49."
29 U.S.C. § 213(b)(1). The Motor Carrier Act allows the Secretary of Transportation
to set the "qualifications and maximum hours of service of employees of . . . a motor
private carrier, when needed to promote safety of operation." 49 U.S.C.
§ 31502(b)(2). The Motor Carrier Act defines a "motor private carrier" as

      a person other than a motor carrier, transporting property by motor
      vehicle when--
      (A) the transportation is as provided in section 13501 of this title;
      (B) the person is the owner, lessee, or bailee of the property being
      transported; and
      (C) the property is being transported for sale, lease, rent, or bailment or
      to further a commercial enterprise.

49 U.S.C. § 13102(13). The transportation "provided in section 13501" is interstate
travel. See 49 U.S.C. § 13501(1)(A) ("The Secretary and the Board have jurisdiction
. . . over transportation by motor carrier . . . between a place in [] a State and a place
in another State."). There is no dispute Morgan engaged in interstate travel between
Mississippi and Louisiana as part of his job. See 29 C.F.R. § 782.7(b)(1) ("Highway
transportation by motor vehicle from one State to another, in the course of which the
vehicles cross the State line, clearly constitutes interstate commerce under both [the

                                           -3-
FLSA and the Motor Carrier Act]."). There is also no dispute Morgan transported
property, that is, the PDR tools, to further a commercial enterprise. See, e.g.,
Friedrich v. U.S. Computer Servs., 974 F.2d 409, 417 (3d Cir. 1992) (recognizing
tools, parts, and equipment transported by field engineers to perform service work on
computer hardware constituted "property" under the Motor Carrier Act); Turk v.
Buffets, Inc., 940 F. Supp. 1255, 1261 (N.D. Ill. 1996) ("The transportation of
defendant's repair equipment and spare parts across state lines to service its restaurants
meets the statutory definition.").

        Morgan disputes, however, that his employers are the owners of the PDR tools
he transported. Morgan averred in his supplemental affidavit "[s]ome of my PDR
tools were given to me by Defendants when I first began my employment with them.
. . . None of the tools that I transported to and from work sites in my truck, while I was
working for Defendants, was a tool owned by either Defendant." App. at 48
(emphasis added). In an earlier affidavit, Morgan stated he "repaired the dents and
'dings' in the metal exterior of automobiles[] using tools, equipment and supplies
provided to me by Defendants." Id. at 50 (emphasis added). The district court refused
to consider the supplemental affidavit concluding it contradicted his earlier affidavit
without explanation. See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361,
1364-65 (8th Cir. 1983) (recognizing a party can not "create a genuine issue" of fact
to avoid summary judgment by filing an affidavit contradicting his earlier testimony,
unless the apparent contradiction is adequately explained).

      The Sixth Circuit recently addressed this very same issue in Morgan's appeal
from the adverse judgment in the Ohio district court. The Sixth Circuit stated:

      Morgan contends the district court abused its discretion in this matter
      because his corrected affidavit is not contradictory, but explanatory.
      Indeed, the corrected statement, that the PDR tools were given to Morgan
      by defendants, is not necessarily inconsistent with his original statement
      that the tools were provided to him by defendants – especially when the

                                           -4-
      two statements are read, as they must be for purposes of defendants'
      summary judgment motion, in the light most favorable to Morgan. Until
      the clarifying statement was filed, Morgan's original statement that the
      tools were provided to him by defendants begged the question whether
      ownership passed to Morgan at that time. . . . Considering this
      chronology, both the timing and contents of Morgan's proffered
      clarification, whether ultimately deemed truthful or not, are certainly
      understandable and facially legitimate. Read in the light most favorable
      to Morgan, the corrected statement genuinely appears to illuminate or
      clarify his original statement. It is not necessarily contradictory or even
      inconsistent and does not necessarily suggest prevarication. The district
      court's contrary conclusion demonstrates that it erroneously viewed both
      plaintiff's original affidavit and the corrected affidavit in the light most
      favorable to the defendants, rather than to the nonmovant. The district
      court's disallowance of the correction as contradictory thus represents a
      misapplication of the law governing summary judgment assessment of
      the record. This misapplication of the law represents an abuse of
      discretion.

Morgan v. Gandalf, Ltd., No. 05-3189, 2006 WL 238321, *7 (6th Cir. Jan. 31, 2006)
(unpublished decision) (internal citations omitted).

      We agree with this aspect of the Sixth Circuit's analysis, and therefore also
conclude the district court abused its discretion when it refused to consider the
supplemental affidavit on the ground it contradicted Morgan's earlier affidavit.

       The district court also refused to consider Morgan's supplemental affidavit on
the ground the affidavit contradicted a deposition Morgan gave seven days after
signing the supplemental affidavit. After comparing the deposition testimony with the
supplemental affidavit, we still conclude the district court abused its discretion in
refusing to consider Morgan's averment his employers were not the owners of the
PDR tools. Some of the statements in Morgan's deposition again merely address the
provision of the tools, and not the controlling issue whether ownership passed to
Morgan or remained with his employers at that time. Other statements in which

                                          -5-
Morgan purports to admit the PDR tools were "company property" rather than his own
are ambiguous. For example, we can infer from the record some PDR tools were
commonly referred to as "Dent Wizard" tools because that was their brand name, such
as referring to a camp stove as a Coleman® stove. Thus, Morgan's affirmative answer
when asked the question whether he was transporting "Dent Wizard tools and
equipment" does not necessarily constitute an admission Dent Wizard owned the
tools. This ambiguity in the record is compounded by the fact neither Dent Wizard
or Francois submitted any documentation (i.e., a depreciation schedule for tax
purposes) establishing their ownership of the tools in question, which, it seems, either
could have easily done if, in fact, the tools were not Morgan's.

      After reviewing the entire record in the light most favorable to Morgan, as we
must for summary judgment purposes, e.g., Revels v. Vincenz, 382 F.3d 870, 874 (8th
Cir. 2004), we conclude there is still a genuine fact issue regarding the actual
ownership of the tools in question. Since we are reversing on this issue, it is
unnecessary to address Morgan's remaining claims.

       We reverse the district court's grant of summary judgment and remand for
further proceedings.1
                      ______________________________

      1
       Pending before the court is an unopposed motion to strike certain portions of
appellees' brief, which we grant, and an opposed motion to sanction appellant's
counsel, which we deny.

                                          -6-