174 B.R. 263 (1994)
NORTH PENN TRANSFER, INC., Plaintiff,
v.
STATIONERS DISTRIBUTING COMPANY, Defendant.
No. 94 C 796.
United States District Court, N.D. Illinois, Eastern Division.
October 20, 1994.
*264 Christine Renee Haddad, Lawrence M. Liebman and Timothy F. Eddy, Eddy & Liebman, Chicago, IL, for North Penn Transfer, Inc.
Sara Elwood Cook and Ellen Debra Holzman, McKenna, Storer, Rowe, White & Farrug, Chicago, IL, for Stationers Distributing Co.

MEMORANDUM OPINION AND ORDER
NORDBERG, District Judge.
Before the Court is Plaintiff Northern Penn Transfer's Motion for Summary Judgment and Defendant Stationers Distributing Company's Motion for Stay and Referral to the Interstate Commerce Commission and The Maryland Public Service Commission.
*265 BACKGROUND
Plaintiff Northern Penn Transfer ("Plaintiff"), a bankrupt motor carrier, has brought an action for collection of alleged freight "undercharges." (Complaint at ¶¶ 1, 4.) Plaintiff was a licensed motor common carrier which filed rates with the ICC or was a participant in rates tariffs filed by others with the ICC. (Plaintiff's Rule 12(m) Statement at ¶¶ 3, 4; Defendant's Rule 12(n) Statement at ¶¶ 3, 4.) Plaintiff's claim arises from transportation services performed by Plaintiff for Defendant subject to the provisions of the Interstate Commerce Act, 49 U.S.C.A. §§ 10101-11901 (West Supp.1992). Plaintiff seeks damages in the amount of $13,518.36 plus interest which is the difference between freight charges billed by Plaintiff, which were fully paid by Defendant, and the applicable rates filed with the Interstate Commerce Commission ("ICC"). Complaint at ¶¶ 5, 6, 7.
Attached to the Plaintiff's Complaint as Exhibit A is a list of 582 alleged "balance due" bills. Most of the "balance due" bills concern less-than-truckload shipments of "FAK" miscellaneous office supplies from Defendant's facilities in Jessup, Maryland to various points in New Jersey, Pennsylvania, Maryland, New York, Delaware, Virginia and the District of Columbia. Other "balance due" bills concern less-than-truckload shipments of items such as file cabinets, paper, office supplies, lamps or folding tables to Jessup, Maryland from Pennsylvania, Delaware, Maryland and New York. The bill dates range from February 10, 1989 to January 2, 1990. (Plaintiff's Exhibit A-1.)
For the most part, the undercharges sought by Plaintiff are based on the auditors' determination that shippers discount provision, ICC NOPT 601-A Item 4450.8 did not apply on minimum charge shipments until August 7, 1989 and since many of the bills were dated prior to August 7, 1989, the shipments must be rerated at the proper tariff minimum charge as per ICC MAC 500 and ICC MAC 110 Item 610. (Affidavit of Charles Shinn at 4.) Other "balance due" bills are based on the erroneous application of shippers discount provisions ICC NOPT 601-A Item 4450.7 and 4450.8 to inbound shipments arriving at Jessup, Maryland. Id. at 9.
In its Motion for Summary Judgment, Plaintiff asserts that, based on the "filed rate doctrine" and the Supreme Court's recent decision in Reiter v. Cooper, ___ U.S. ___, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993), it is entitled to collect the difference between freight charges billed by Plaintiff and the applicable rates filed with the ICC in addition to pre-judgement interest on such undercharges. Defendant responds that Plaintiff is not entitled to judgment as a matter of law because Plaintiff's attempt to collect the undercharges is subject to the unreasonable practices defense, as established by the Negotiated Rates Act of 1993, P.L. 103-180, 107 Stat. 2044, amending Title 49 of the United States Code, and because the tariff rates sought by Plaintiff are unreasonable. Defendant argues further that its defenses should be referred to the ICC under the Negotiated Rates Act of 1993 (hereinafter referred to as the "NRA") and the doctrine of primary jurisdiction.
Plaintiff dismisses Defendant's argument contending that, as the NRA does not apply to the case at hand, thus Defendant cannot defend against Plaintiff's filed rate action by charging unreasonable practices. Furthermore, Plaintiff asserts that the Supreme Court's opinion in Reiter establishes that there is no unreasonable rate defense to a filed rate action. Thus, Plaintiff concludes that, as Defendant's defenses are unsustainable as a matter of law, Plaintiff is entitled to judgment.
ANALYSIS
Unreasonable Practice Defense
This case follows a familiar pattern. A motor carrier and a shipper negotiate rates which are lower than the tariff rates which the Interstate Commerce Act requires the carrier to "publish and file" with the ICC, 49 U.S.C. § 10762. The carrier fails to "publish and file." After the shipments are delivered and paid for, the carrier goes bankrupt and its trustee in bankruptcy sues the shipper for the difference between the negotiated rates and the filed rates. See Reiter, ___ U.S. at ___, 113 S.Ct. at 1216. The trustee argues *266 that the rate filed with the ICC governs the legal relationship between the carrier and the shipper and that deviation from the filed rate is not permitted. The shipper usually defends against the carrier's undercharge action by arguing (1) that the carrier's attempt to collect more than the agreed upon rate is an "unreasonable practice" proscribed by the Act, see 49 U.S.C. § 10701(a) and (2) that the filed rates are unlawful because they are unreasonably high. Reiter, ___ U.S. at ___, 113 S.Ct. at 1216. In 1989, the ICC announced a policy approving the "unreasonable practice" defense asserted by shippers. Id. (citing NIT:-Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 5 I.C.C.2d 623 (1989)). However, the Supreme Court invalidated the ICC's policy in Maislin Industries, U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 133, 110 S.Ct. 2759, 2769, 111 L.Ed.2d 94 (1990), holding that it would "rende[r] nugatory" the specific command of § 10761 that the carrier charge the shipper the filed rate.
In response to the Supreme Court's decision in Maislin, Congress passed the Negotiated Rates Act. Section 2(e) of the NRA states:
(e) ALTERNATIVE PROCEDURES FOR RESOLVING DISPUTES
(1) GENERAL RULE.  For purposes of section 10701 of title 49, United States Code, it shall be an unreasonable practice for a motor carrier of property . . . providing transportation subject to the jurisdiction of the Commission . . . to attempt to charge or to charge for a transportation service provided before September 30, 1990, the difference between the applicable rate that is lawfully in effect pursuant to a tariff that is filed [with the ICC] . . . and the negotiated rate for such transportation service if the carrier or freight forwarder is no longer transporting property . . .
(2) JURISDICTION OF COMMISSION.  The Commission shall have jurisdiction to make a determination of whether or not attempting to charge or the charging of a rate by a motor carrier or freight forwarder . . . is an unreasonable practice under paragraph (1). If the Commission determines that attempting to charge or the charging of the rate is an unreasonable practice under paragraph (1), the carrier [or] freight forwarder . . . may not collect the difference described in paragraph (1) between the applicable rate and the negotiated rate for the transportation service. . . .
(3) STAY OF ADDITIONAL COMPENSATION.  When a person proceeds under this subsection to challenge the reasonableness of the practice of a motor carrier [or] freight forwarder . . . described in paragraph (1) to attempt to charge or to charge the difference described in paragraph (1) between the applicable rate and the negotiated rate for the transportation service in addition to those charges already billed and collected for the transportation service, the person shall not have to pay any additional compensation to the carrier [or] freight forwarder . . . until the Commission has made a determination as to the reasonableness of the practice as applied to the freight of the person against whom the claim is made.
Negotiated Rates Act of 1993, P.L. 103-180 § 2(e)(1), (2) and (3), 107 Stat. 2047.
It is undisputed that Plaintiff is attempting to collect from the Defendant the difference between the alleged applicable rate filed with the ICC and the negotiated rate for transportation services provided prior to September 30, 1990. (See Complaint at ¶¶ 4-7; Exhibit A-1 which lists bill dates ranging from February 10, 1989 to January 2, 1990.) It is further undisputed that Plaintiff, as a bankrupt motor carrier, is no longer transporting property. Given these undisputed facts and the plain language of NRA Section 2(e), this Court concludes that Defendant can assert an unreasonable practices defense to Plaintiff's filed rate claim and that Defendant is entitled to a stay until the ICC determines whether Plaintiff's attempt to collect undercharges is an unreasonable practice.
Despite the plain language of the NRA, which validates the viability of an unreasonable practices defense, Plaintiff, relying on Section 9 of the NRA and Section 541(c)(1) of the Bankruptcy Code, asserts that the NRA is not applicable to the case at *267 hand. Section 9 of the NRA states as follows:
LIMITATION ON STATUTORY CONSTRUCTION
Nothing in this Act . . . shall be construed as limiting or otherwise affecting application of title 11, United States Code, relating to bankruptcy; title 28, relating to the jurisdiction of the courts of the United States . . .
Negotiated Rate Act of 1993, P.L. 103-180 § 9, 107 Stat. 2053. Section 541(c)(1) of the Bankruptcy Code provides:
(c)(1) . . . an interest of the debtor in property becomes property of the estate . . . notwithstanding any provision in an . . . applicable nonbankruptcy law
. . . . .
(B) that is conditioned on the insolvency or financial condition of the debtor . . . and that effects or gives an option to effect a forfeiture, modification, or termination of the debtor's interest in property.
11 U.S.C. § 541(c)(1). Section 541(c)(1) prevents otherwise applicable nonbankruptcy laws from causing a forfeiture of the debtor's property based on the debtor's insolvency or financial condition. Plaintiff argues that the NRA is an "applicable nonbankruptcy law" under Section 541(c)(1) because it "is conditioned on the insolvency or financial condition of the debtor" and that because it "effects a forfeiture, modification or termination of the debtor's interest in property." Given Section 9 of the NRA, Plaintiff argues that Section 541(c)(1) prevents the application of the NRA to bankrupt carriers and thus to the present case. Plaintiff cites one case in support of its position. See In re Bulldog Trucking, Inc., No. 92-3100, slip op. (Bankr.W.D.N.C. Feb. 17, 1994).[1]
However, this Court has previously rejected the reasoning of In re Bulldog Trucking and Plaintiff's argument that, given Section 9 of the NRA, Section 541(c)(1) prevents the application of the NRA to the bankrupt carriers. See Jones Truck Lines, Inc. v. Grinnell Corporation, 167 B.R. 488, 493 (N.D.Ill.1994). In Jones Truck Lines, this Court stated,
After a review of the plain language of the NRA and its legislative history, it is the opinion of the Court that Congress intended the NRA to apply to bankrupt debtors. To hold otherwise would be to sanction the absurd position that Congress only intended the statute to apply to carriers that are "no longer transporting property," 49 U.S.C.A. § 10701(f)(1)(A) (West Supp. 1994), but have not filed for bankruptcy. Moreover, Plaintiff's position rests on its showing that the NRA is "conditioned on the insolvency or financial condition of the debtor." 11 U.S.C. § 541(c)(1)(B) (1988). In fact, the NRA is conditioned on a carrier's "no longer transporting property." 49 U.S.C. § 10701(f)(1)(A) (West Supp.1994). The two conditions are not the same. While a carrier's "no longer transporting property" may indicate that the carrier is in financial difficulty, such is not necessary. Similarly, a carrier that is insolvent or in poor financial condition may still be transporting. In the former case, the NRA would apply. In the latter, it would not. The Court thus rejects Plaintiff's contention that its status as a bankrupt debtor precludes the application of the NRA.
Id. Plaintiff has given this Court no persuasive reason why it should depart from its previous decision in Jones Truck Lines. Moreover, a number of other courts have also held that the NRA is applicable to bankrupt carriers. See Allen, Trustee for TSC Express Co. v. Spiegel, Inc. and United Pool Distribution, Incorporated, 169 B.R. 394, 396 (N.D.Ill.1994); Jones Truck Lines, Inc. v. Polyflex Film & Converting, Inc., 173 B.R. 576, 578-80 (S.D.Miss.1994); Jones Truck Lines v. Madix Store Fixtures, No. 3:93-CV-0925-T, 1994 WL 416154 at *2-3 (N.D.Tex., April 6, 1994); Lewis v. H.E. Wisdom & Sons, Inc., No. 93-C-985, 1994 WL 110659 (N.D.Ill. Mar. 30, 1994); Jones Truck Lines, Inc. v. Aladdin Synergetics, Inc., 174 B.R. 76, 80-81 and n. 9 (M.D.Tenn.1994).
Even if Section 541(c)(1) of the Bankruptcy Code does not prevent application of *268 the NRA to bankrupt carriers, Plaintiff argues that Section 2(e) of the NRA should not apply to the instant case because the claims in the instant case were pending when the NRA was enacted on December 3, 1993. Section 2(c) of the NRA states as follows:
APPLICABILITY.  The amendments made by subsections (a) and (b) of this section shall apply to all claims pending as of the date of the enactment of this Act . . .
Negotiated Rates Act of 1993, P.L. 103-180 § 2(c), 107 Stat. 2047. Plaintiff contends that as Section 2(c) addresses only the application of sections (a) and (b) to the pending claims, it is inapplicable to section (e). This Court cannot agree with Plaintiff. Subsection (e) of the NRA allows defendants who are being sued for undercharges on transportation services provided before September 30, 1990, to opt out of section (a) of the NRA[2] and raise an unreasonable practices defense. As subsection (e) allows a defendant to avoid any payment of undercharges for older claims, it would be inconsistent with the reasoning of the NRA to hold that subsection (e) does not apply to claims pending on the date of the enactment of the NRA. See Jones Truck Lines, Inc. v. Scott Fetzer Company, 860 F.Supp. 1370, 1375-76 (E.D.Ark.1994); Arrow Carrier Corporation, et al. v. Robertshaw Controls Co., Civil Action No. 93-2519, 1994 WL 411780 at *5-6 (D.N.J. June 3, 1994) (holding that pending claims under § 2(e) are covered under the NRA); Jones Truck Lines v. Admiral Marine Co., 858 F.Supp. 71, 72 (E.D.La.1994) (citing H.R.Rep. No. 103-359, p. 2539 "[s]ubsection 2(c) makes the new procedures applicable to all claims pending on the date of enactment.")
As the NRA is applicable to the case at hand and as Defendant can meet the prerequisites necessary to assert an unreasonable practices defense under Section 2(e) of the NRA, Defendant is entitled to a stay of the present action until the ICC determines whether Plaintiff's attempt to collect undercharges from Defendant is an unreasonable practice. See Negotiated Rates Act of 1993, P.L. 103-180 § 2(e)(3), 107 Stat. 2047.
Rate Unreasonableness
The filed rate doctrine, which requires that the filed rate be collected from the shipper, has one important caveat: the filed rate is not enforceable if the ICC finds the rate to be unreasonable. See 49 U.S.C. § 10701(a); Maislin, 497 U.S. at 128-29, 110 S.Ct. at 2767. The Interstate Commerce Act gives shippers an express cause of action against carriers for damages in the amount of the difference between the tariff rate and the rate determined to be reasonable by the ICC. Reiter, ___ U.S. at ___, 113 S.Ct. at 1217 citing 49 U.S.C. § 11705(b)(3).
Recent Supreme Court opinions as well as opinions in this jurisdiction make it clear that the reasonableness of a filed rate is within the primary jurisdiction of the ICC. Reiter, ___ U.S. at ___ - ___, 113 S.Ct. at 1220-21; Maislin, 497 U.S. at 118-20, 110 S.Ct. at 2762; Allen, Trustee for TSC Express Co. v. Spiegel, Inc. and United Pool Distribution, Incorporated, 169 B.R. 394, 396 (N.D.Ill.1994); Gross Common Carrier v. A.B. Dick, 861 F.Supp. 638, 638-40 (N.D.Ill. 1993); Jones Truck Lines v. Jiffy Prod. of America, 834 F.Supp. 278, 280 (N.D.Ill.1993); Lifschultz Fast Freight v. JBS Warehousing, Inc., 809 F.Supp. 51, 53 (N.D.Ill.1992).
The doctrine of primary jurisdiction applies to claims which are originally cognizable in the courts, and comes into play whenever enforcement of the claims requires the resolution of issues which, under a regulatory scheme, are within the special competence of an administrative agency. Reiter, ___ U.S. at ___, 113 S.Ct. at 1220. The doctrine requires the court to stay further proceedings so as to the give the parties an opportunity to seek an administrative ruling on the relevant issues. Id. As the issue of reasonableness of the filed rates is contested by the parties and within the special expertise of the ICC, a stay of the present proceedings appears to be the appropriate result.
*269 However, Plaintiff argues that Defendant's claim that the filed rate is unreasonable should not prevent this Court from entering judgment on its undercharge claims. Relying on the Supreme Court's decision in Reiter, Plaintiff asserts that a claim that a filed rate is unreasonable is a counterclaim, not a defense, and thus this Court has the discretion, under Federal Rule of Civil Procedure 54(b), to enter judgment in favor of the Plaintiff on the undercharge claim and then allow the Defendant to pursue its counterclaim with the ICC.
While Plaintiff is correct in the technical sense that an unreasonable rate claim is a counterclaim, not a defense, see 49 U.S.C. § 11705(b)(3), and that Reiter holds that a district court has discretion to enter separate judgment on Plaintiff's undercharge claim, this Court holds that this is not a proper case for the entry of separate judgments under Rule 54(b).[3] In Reiter, the Supreme Court found,
In the ordinary case, where a carrier is solvent and has promptly initiated suit, the equities favor separate judgment on the principal claim: referral of the unreasonable-rate issue could produce substantial delay, and tariff rates not disapproved by the ICC are legal rates, binding on both the shipper and the carrier. . . . The equities change, however, when the suing carrier is in bankruptcy. Indeed, we have previously held that even a "threat of insolvency" of the party seeking separate judgment is a factor weighing against referral.
___ U.S. at ___, 113 S.Ct. at 1221 (citations omitted). Clearly, Plaintiff's insolvency weighs against Plaintiff's request for separate judgments. See, Jiffy Prod. of America, 834 F.Supp. at 281. Although the Supreme Court noted in Reiter that the insolvency of the carrier is not an absolute bar to separate judgments, Plaintiff presents no persuasive evidence which would tip the balance in favor of application of Rule 54(b). There is absolutely no indication, aside from the Plaintiff's unsupported assertions, that the Defendant may become insolvent.
Additionally, Section 2(a) of the Negotiated Rates Act, amending § 10701 of Title 49 of the United States Code by adding subsection (f) thereto, suggests that staying the proceeding in this Court until the ICC determines the reasonableness of Plaintiff's filed rates is the appropriate course:
(6) STAY OF ADDITIONAL COMPENSATION.  When a person proceeds under this section to challenge the reasonableness of the legally applicable freight rate or charges being claimed by a carrier or freight forwarder described in paragraph (1) in addition to those already billed and collected, the person shall not have to pay any additional compensation to the carrier or freight forwarder until the Commission has made a determination as to the reasonableness of the challenged rate as applied to the freight of the person against whom the claim is made.
49 U.S.C.A. 10701(f)(6) (West Supp.1994).
As an alternative course, Plaintiff requests that this Court grant judgment in its favor but allow Defendant to pay damages in to the Court pending the decision of the ICC on the issue of reasonableness. Plaintiff's alternative request must also be rejected. Such a request is clearly contrary to the language of the NRA quoted above; there is no practical difference to Defendant of being required to pay damages to Plaintiff versus into the court. See Allen, Trustee for TSC Express Co., 169 B.R. at 397-98. Furthermore, as previously noted, there is no indication that the Defendant's financial stability is in jeopardy. Accordingly, this Court holds that separate judgments are not warranted in the present case.
Finally, this Court notes that, before referring an issue to the ICC under the doctrine of primary jurisdiction, some courts have required that the party seeking referral make a "threshold showing" that the ICC could find the filed rates unreasonable. See Atlantis Express, Inc. v. Standard Transportation Services, Inc., 955 F.2d 529, 537 (8th Cir.1992). For the following reasons, the *270 Court believes that Defendant meets this threshold showing.
General criteria which the ICC applies to determine rate reasonableness include: (a) relevant rate comparisons; (b) a carrier's proffer of a particular rate; (c) whether the rate would have moved the traffic had it been assessed at the time the shipment took place; (d) class rates for like traffic; and (e) tariff analysis. LaSalle National Bank v. Badger Paper Mills, No. 92 C 0546, 1993 WL 177022 *2 (N.D.Ill. May 21, 1993). Defendant attaches an affidavit of Michael Bange, an industry expert, which compares the original rates of the Plaintiff with the rates of other carriers in the same geographic area during the same time the shipments at issue were moved and such a comparison shows that other carriers offered rates equivalent to the ones Plaintiff originally charged. (Bange's Affidavit, Exhibit 1 at 16.) Bange also states that Plaintiff's Customer Sales Record, which contains a section entitled "Other Carriers Pricing," is evidence of Plaintiff's awareness of the rates and discounts available to Defendant from other competing carriers. Id. at 17. Plaintiff's original freight bills evidence the original rate proffered by the Plaintiff, which is substantially lower than the rate now sought. Id. at 19. Finally, after studying the various discount tariffs published by Plaintiff, Bange concludes that the rates which Plaintiff presently seeks would not have moved an appreciable amount of traffic during the relevant time period. Id. at 20-21. As Defendant meets the threshold showing of unreasonableness, staying the pending action so as to give Defendant a reasonable opportunity within which to apply to the ICC for a ruling as to the reasonableness of the filed rates is appropriate. See LaSalle National Bank, 1993 WL 177022 *2 (holding that evidence that (1) other carriers offered rate equivalent to that originally charged, (2) plaintiff originally proffered discount rate and (3) defendant would have selected another carrier if it knew it would have been charged the filed rate is sufficient to support referral.)
Plaintiff asserts that Defendant has failed to meet the necessary threshold showing because it has not provided detailed evidence as to the maximum reasonable rate or the reasonableness of the competitor rates. The Court disagrees. Defendant's evidence, while not as detailed as it might be, shows that the Plaintiff's rates were consistent with the prevailing market rate and that its filed rates were above the market rate, and thus is sufficient to meet the threshold showing of unreasonableness. See Grinnell, 167 B.R. at 494.
Based on the futility doctrine, Plaintiff makes one last argument against staying the proceedings and allowing Defendant to raise the issues of unreasonable practices and unreasonable filed rates before the ICC. Plaintiff contends that a substantial backlog of cases at the ICC may delay consideration of the issues involved in this case for years.
The futility doctrine allows a court to waive a requirement that an administrative agency initially consider an issue where application to the agency would be futile. Lewis v. Helios Container Systems, 844 F.Supp. 408, 410 (N.D.Ill.1993). However, Plaintiff's argument must be rejected because the futility exception generally applies to the doctrine of exhaustion of administrative remedies, not to the doctrine of primary jurisdiction. Id. Moreover, as this Court noted in its previous opinion, such a request is inconsistent with the letter and spirit of the NRA. Grinnell, 167 B.R. at 494. "There need only be one judgment in this case and any judgment to which [Plaintiff] may be entitled might be entirely offset by a judgment on [Defendant's] counterclaims and defenses." Id. Accordingly, the futility doctrine will not justify avoiding a stay in the present case.
Intrastate Shipments
Defendant notes that twenty-eight of the balance due bills show, on their face, that the shipments originated and terminated within the State of Maryland and requests that this Court dismiss such intrastate undercharge claims for lack of jurisdiction.
Even if these intrastate shipments do not fall within the confines of the Interstate Commerce Act, see 49 U.S.C. § 10525(a), this Court would have supplemental jurisdiction *271 over the Plaintiff's undercharge claims for intrastate shipments as long as they "form part of the same case or controversy under Article III of the United States Constitution," as those claims within the original jurisdiction of the Court. 28 U.S.C. § 1367(a). Section 1367(c) permits a district court to decline supplemental jurisdiction over a claim if a claim raises a novel or complex issue of state law. 28 U.S.C. § 1367(c). However, this Court cannot tell whether § 1367(c) is applicable to the present case because Plaintiff does not indicate on what state law it bases its intrastate undercharge claims. Plaintiff's Complaint merely states "this cause of action arises under 49 U.S.C. § 1761(a) and/or consistent with applicable intrastate law provisions." (Complaint at ¶ 2.) Accordingly, at this stage the Court will not dismiss Plaintiff's intrastate undercharge claims for lack of jurisdiction. As Plaintiff's Complaint does not specify under what state law it proceeds, this Court must also reject Defendant's invitation to refer the intrastate undercharge claims to the Maryland Public Service Commission under the doctrine of primary jurisdiction. It is impossible to tell whether Plaintiff's state claims require resolution of issues which are within the special competence of an administrative body.
CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Summary Judgment is denied without prejudice. Defendant's Motion for Stay and Referral of the interstate undercharge claims to the Interstate Commerce Commission is granted. Defendant's Motion for Stay and Referral of the intrastate undercharge claims to the Maryland Public Service Commission is denied without prejudice. This case is hereby stayed so as to give Defendant a reasonable opportunity within which to apply to the ICC for a ruling as to its unreasonable practices defense and the reasonableness of the filed rates.
NOTES
[1]  Subsequently published at 173 B.R. 517 (W.D.N.C.1994).
[2]  Subsection (a) of the NRA allows a defendant, upon a certain showing, to elect to settle the claim through payment of five to twenty percent of the undercharges allegedly owed.
[3]  Rule 54(b) allows a district court to enter separate final judgment on any claim or counterclaim, after making "an express determination that there is no just reason for delay." Reiter, ___ U.S. at ___, 113 S.Ct. at 1218.


                               NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                         FILED
                               FOR THE NINTH CIRCUIT                         AUG 07 2013

UNITED STATES OF AMERICA,                             No. 12-50309        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

         Plaintiff-Appellee,                          D.C.No. 2:11-cr-01103-GHK-1

   v.                                                 MEMORANDUM*

MARCO ANTONIO SANCHEZ-
MARTINEZ

         Defendant-Appellant.

                     Appeal from the United States District Court
                         for the Central District of California
                    George H. King, Chief District Judge, Presiding

                                Submitted August 5, 2013**
                                   Pasadena, California

Before:        SILVERMAN and WARDLAW, Circuit Judges, and
               CEDARBAUM,*** District Judge.

   *
        This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as may be provided by Ninth Circuit
Rule 36-3.
   **
       The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
   ***
        The Honorable Miriam Goldman Cedarbaum, Senior District Judge for the
Southern District of New York, sitting by designation.

                                            1
       Marco Antonio Sanchez-Martinez appeals from the district court’s rejection

of his plea agreement with the United States as well as the sentence imposed by the

court. For the reasons that follow, we affirm.

       Sanchez-Martinez’s primary objection is to the district court’s use of a

spreadsheet of the sentences it had imposed in past cases, which it did not provide

to counsel. Sanchez-Martinez claims that the use of this spreadsheet in rejecting

his plea agreement violated Federal Rule of Criminal Procedure 11(c), that its use

in his sentencing violated Federal Rule of Criminal Procedure 32 and was

procedurally unreasonable, and that its use in both instances violated due process.1

Since Sanchez-Martinez never objected to the court’s use of the spreadsheet (if

anything, his counsel assented to its use) and never asked to be provided the

spreadsheet, we review his appeal for plain error. See United States v. Vonn, 535

U.S. 55, 62-63, 122 S. Ct. 1043, 1048, 152 L. Ed. 2d 90 (2002); United States v.

Diaz-Ramirez, 646 F.3d 653, 656 (9th Cir. 2011) cert. denied, 133 S. Ct. 101, 184

   1
        The United States asserts that Sanchez-Martinez waived the right to raise a
Rule 32 argument by not including it in his opening brief. However, we may treat
arguments grounded in the reasonableness of a sentence or the Due Process Clause
as raising Rule 32 concerns. United States v. Warr, 530 F.3d 1152, 1162 (9th Cir.
2008); United States v. Gonzales, 765 F.2d 1393, 1396, 1398 (9th Cir. 1985). The
United States also asserts that Sanchez-Martinez waived the right to challenge his
sentence at all by seeking a sentence of 57 months – the sentence he ultimately
received – at his sentencing hearing. Counsel sought that sentence only after the
court stated that it intended to impose a higher sentence than the plea agreement
envisioned. Such behavior does not amount to a waiver.

                                          2
L. Ed. 2d 47 (2012). Sanchez-Martinez also challenges the substantive

reasonableness of his sentence, which is reviewed for abuse of discretion. United

States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).

      In arguing that the court violated Rule 11, Sanchez-Martinez cites precedent

holding that a court must “provide individualized reasons for rejecting the [plea]

agreement, based on the specific facts and circumstances presented”; it may not

engage in a categorical rejection of sentence bargaining. In re Morgan, 506 F.3d

705, 711-12 (9th Cir. 2007). Morgan is inapposite. In rejecting Sanchez-

Martinez’s plea agreement, the court thoroughly detailed a number of

individualized reasons for rejecting the agreement, and simply used the spreadsheet

to contextualize the specific facts and circumstances before it. There was nothing

improper in doing so under either Rule 11 or the Due Process Clause. Sanchez-

Martinez’s citation to Gardner v. Florida, a case which has been construed as

relating only to capital proceedings, is inapposite, especially in light of the fact that

the district court did not rely on any undisclosed factual information about

Sanchez-Martinez or his record. 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393

(1977); O’Dell v. Netherland, 521 U.S. 151, 162, 117 S. Ct. 1969, 1976, 138 L. Ed.

2d 351 (1997).

      Regarding the sentencing, nothing in our precedent suggests that a district

                                            3
court commits plain error by considering what amounts to a catalog of comparison

cases at a sentencing hearing, even where the defendant has not been provided with

that catalog. The court simply relied on a formalized version of what all district

judges rely upon: their experience of imposing sentences in past, relevant cases as

an element in determining the fairness of the sentence for the individual defendant

before them. This approach is encouraged by statute, which states that a judge

should consider “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.”

18 U.S.C. § 3553(a)(6). The court did not err in using a memory aid to assist it in

making this determination. Indeed, the use of the spreadsheet avoided the pitfalls

of relying on one’s memory, which can be faulty, alone.2 Since Sanchez-

Martinez’s claim under Rule 32 fails, his related due process claim fails as well.

See United States v. Baldrich, 471 F.3d 1110, 1113 (9th Cir. 2006).

       Finally, the court’s sentence was not substantively unreasonable. First,

Sanchez-Martinez’s sentence of 57 months was within the Guideline range, albeit

on the higher end of that range. Although this court does not presume that a

within-Guidelines sentence is reasonable and must instead consider the totality of

   2
       Nor did the court commit any of the more familiar kinds of procedural error.
Sanchez-Martinez does not challenge any of the court’s Guidelines calculations
and, in passing sentence, the court discussed every factor set out in 18 U.S.C. §
3553(a).

                                          4
the circumstances in the case, it is “probable” that such a sentence is reasonable in

an ordinary case. United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en

banc) (quoting Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465, 168

L. Ed. 2d 203 (2007)). Considering the totality of the circumstances, the district

court did not abuse its discretion. The district court reasonably determined that

Sanchez-Martinez’s previous history of deportations, and of criminal convictions

following three of those deportations, warranted a higher sentence than the plea

agreement had envisioned for a variety of reasons, including avoiding unwarranted

sentence disparities. Consulting its own history of prior cases in making this

determination was entirely proper.

             AFFIRMED.

                                          5


543 U.S. 1158
VINCENTv.MISSISSIPPI.
No. 04-7552.
Supreme Court of United States.
February 22, 2005.

1
Sup. Ct. Miss. Certiorari denied.


96 N.J. Super. 9 (1967)
232 A.2d 425
LENORE ROSEMARIE COOKE, PLAINTIFF-APPELLANT,
v.
J.J. NEWBERRY AND CO., A CORPORATION, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued January 30, 1967.
Decided July 6, 1967.
*12 Before Judges GAULKIN, LEWIS and LABRECQUE.
Mr. Robert S. Feder argued the cause for appellant.
Mr. George P. Moser, Jr. argued the cause for respondent (Messrs. Moser, Roveto & McGough, attorneys).
The opinion of the court was delivered by GAULKIN, S.J.A.D.
Plaintiff's action is described in the pretrial order as one "for false arrest and false imprisonment." After both sides rested, the trial judge directed the entry of judgment in favor of defendant and plaintiff appeals.
The broad outline of plaintiff's case (details of which will be supplied, infra, as needed) is as follows: plaintiff admits that she left defendant's store in Bergen Mall, Paramus, with a pair of stretch pants, for which she had not paid, in a Stern's shopping bag. She was accosted outside the store by one Earabino, a Newberry security officer, who refused to accept payment for the garment and asked her to return to the store with him. She accompanied him to an office in the store where she was interrogated for a period and asked to sign a certain paper (described later) which she refused to do. Then Earabino called the Paramus police, who took her into custody. Earabino signed a complaint which charged plaintiff with larceny. She was held for the grand jury, indicted for larceny, tried before a jury and acquitted. This action followed.
We hold that, even though Earabino signed a complaint for larceny and she was indicted and tried on that charge, this case is governed by N.J.S. 2A:170-97 to 101, the Shoplifting Act. Defendant is responsible, if at all, only for that which happened before the police took plaintiff into custody. Since the action is not one for malicious *13 prosecution, defendant could not be liable for the length or nature of plaintiff's detention by the police, or for the actions of the authorities while she was detained. Earl v. Winne, 14 N.J. 119, 128 (1953); Genito v. Rabinowitz, 93 N.J. Super. 225, 228-229 (App. Div. 1966); Prosser on Torts (3d ed. 1964), § 12, pp. 61-62; Restatement, Torts 2d, § 37, comment (b); § 45A, comment (b).
By the same token defendant is not liable for the action of the authorities and the grand jury in proceeding against plaintiff for larceny under N.J.S. 2A:119-2 instead of as a shoplifter, under N.J.S. 2A:170-98. It is the function of the authorities to select the type of prosecution. Once the citizen tells the authorities truly what the facts are, the rest is up to them. Certainly defendant had no control over the prosecutor or the grand jury. In any event, we hold that even if Earabino himself chose to make the larceny complaint instead of one under the Shoplifting Act, defendant would not retroactively lose the benefit of the Act.
We turn, therefore, to the Shoplifting Act.
Section 99 of the act provides:
"Any person willfully concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of converting the same to his own use without paying the purchase price thereof within the meaning of section 1 of this act, and the finding of such merchandise concealed upon the person * * * shall be prima facie evidence of willful concealment; * * *."
Section 100 provides:
"A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover such merchandise by taking the person into custody, may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for not more than a reasonable time. Such taking into custody by a law enforcement officer or special officer or merchant shall not render such law enforcement officer, *14 special officer or merchant criminally or civilly liable in any manner or to any extent whatever.
Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the offense of shoplifting as defined in section 1 of this act.
A merchant who causes such arrest as provided for in this section, of a person for shoplifting shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting."
Plaintiff argues that the facts show she was "arrested," because she "had good cause to believe that she would be forcibly restrained from leaving the room in which she was held had she tried to do so." For the purposes of this opinion we accept this as true. However, there can be no question but that, under the cited section of the statute, Earabino had the right to detain her. Earabino had been informed by the salesgirl that plaintiff had not paid for the stretch pants, and he had seen her place them in the Stern's shopping bag.
The critical question in the case is whether plaintiff's proof was sufficient to go to the jury to establish that the detention was for "more than a reasonable time." We think it was not sufficient on this score and therefore the trial judge's action was not erroneous.
What is a reasonable time depends basically upon what the law authorizes a merchant to do. N.J.S. 2A:169-3, which antedates the Shoplifting Act, permits any person to "apprehend without warrant or process any disorderly person" for any offense committed in his presence. This alone authorized Earabino to arrest plaintiff. State v. Ferraro, 81 N.J. Super. 213 (Law Div. 1964). N.J.S. 2A:170-99 et seq. was designed to enlarge and add to that right so far as merchants are concerned. First, it permits a merchant to take a person into custody upon probable cause, even if he has not actually seen the shoplifting. Second, he may detain the person for the sole purpose of recovering his goods, and may then let him go  a right which he may not have *15 had before. Rothstein v. Jackson's Coral Gables, Inc., 133 So.2d 331 (Fla. D. Ct. App. 1961); Annotation 86 A.L.R.2d 435 (1962). But, third, he need not let the person go. He may summon the police (either before or after he recovers his merchandise, or if he does not attempt to recover it at all) in which case he may detain the person while awaiting their arrival.
The first paragraph of section 100 deals only with the merchant's taking of the suspect into custody, and the custody spoken of in that paragraph is only for the purpose of recovering the goods. The word arrest does not appear in that paragraph. The second and third paragraphs of section 100 plainly contemplate that after getting (or failing to get) the merchandise, the merchant may (as often he should) call the police. If he does, the section says (second paragraph) the responding policeman may arrest without warrant on probable cause (i.e., on what he learns from the merchant) in which case (third paragraph) the "merchant who causes such arrest as provided for in this section, of a person for shoplifting shall not be criminally or civilly liable in any manner and to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting." (Emphasis supplied).
Here Earabino took plaintiff into custody, and then he decided not to accept the stretch pants or their price but to cause her to be arrested. He had the legal right to do so  the only question is whether the jury would have had the right to say he took too long in doing it. We think not.
From what point to what point is the time to be calculated? It is not denied that Earabino called the police at 8:37 P.M. and that they arrived at 8:50. We hold that defendant may not be charged with any delay beyond 8:37.
Plaintiff testified she did not "recall exactly" how long she was in Earabino's office before the police arrived, but it was "roughly a half hour." Earabino said it was 35 to 40 minutes.
*16 Plaintiff's attorney said in his opening that plaintiff was accosted outside the store by Earabino at 8:10. Earabino testified it was "approximately 8:10." Plaintiff said she was stopped "somewhere between say 7:00 and 7:30 vaguely * * *." On cross-examination she admitted "I am not sure of the time," and "I don't think it was after eight."
The burden of proving that she was detained for an unreasonable length of time was upon plaintiff. Plaintiff presented her case on the theory that all or much of the two to three hours she was held by the police in police headquarters was to be charged against plaintiff, but, as we have said, that is not so. We hold that the pertinent time was, at most, from the time she was stopped (about 8:10) to 8:37, when the police were called. We hold that plaintiff's estimate that she was in Earabino's office "roughly a half hour" was her only credible approximation of the time, whereas her vague approximations of the time when she was stopped were too indefinite to go to the jury (since she had the burden of proof) to justify a finding that she was stopped as early as 7:30. Furthermore, her own account of her activities from the time she left home at about 6 P.M. to the time she was "arrested" made it well nigh impossible for her to have been stopped as early as 7:30. She testified she left her home in Ridgefield Park at about 6 P.M.; it took her 20 minutes to get to the Mall. First she parked in Stern's Shopping Area "but closer to Route 4"; then she went up "the stairs leading to the overpass * * * to Korvette's * * * on the other side of the highway [Route 4] * * *." At Korvette's she bought men's shirts, and a pair of "peds" for herself; then she went into a "different section" of Korvette's and bought groceries. She carried the "bundles" back to her car and then drove her car "closer to Stern's and Newberry's parking areas." Then she went into Newberry's and looked at shoes; finding none she liked, she went to look at the shoes displayed at Stern's, then at those in Beck's shoe store, and then at those "across the street from Beck's [at] another store," but she made no purchases. She *17 returned to Newberry's and there she claimed she bought and paid for some makeup and a cup and saucer. Then she went back to Stern's for cards, writing paper and envelopes. Then she "remembered they had another shoe department on the lower level" in Stern's, so she went there and looked. She made no purchase there and decided "to return to Newberry's to see the original pair of shoes that I thought I might care for." She re-entered Newberry's, but went first "to get some lingerie in the lingerie department." There the salesgirl gave her the fatal stretch pants. With the pants in her hand, she went to the infant's hat counter. She testified that there "I had to rummage through a table and I didn't know exactly what size to get so I had to look through and finally chose one * * *." However, she changed her mind and did not buy the hat. She said, "I may have looked around at the other infant's wear and I decided I better get back to the shoes * * *." She testified she then went back to the shoe department and tried on the shoes, but did not buy them because they did not fit "comfortably enough." It was then that she left the store and was stopped by Earabino.
In short, and especially against this background, her guess that she was stopped at 7:30 was too nebulous  a mere scintilla of evidence  that she was indeed stopped at that hour, and not at about 8:10 as her attorney and Earabino said, and it could not have satisfied her burden of proof that it was earlier than about 8:10.
There was no need to detain defendant for more than a few minutes to recover the stretch pants or its price, for plaintiff admitted that she had the merchandise and offered to pay for it. However, Earabino apparently was suspicious of her because of her actions and because she carried a large, easily opened handbag (described as being like a doctor's bag) with a handle which left her hands free. The question was whether to take the merchandise or the price and let her go, or whether to cause her arrest. That, in turn, depended on whether (1) she was telling the truth, (2) she *18 had taken any other merchandise from Newberry's, or (3) this was the first time she had walked out of a store with items not paid for. We think a merchant has the right to consider such things before he decides whether to call the police. Such matters cannot conveniently be determined on the street. Furthermore, extended discussion on the street would be embarrassing to the suspect. Hence, there was no impropriety in Earabino's asking plaintiff to go to his office. There, when he examined the contents of her bag, he found items from Stern's and McCrory's with price tags attached. Earabino recorded plaintiff's name, address and description and checked to see if she had a record. She had none. Then he filled out a form in which she acknowledged that she had taken the stretch pants "without making payment therefore * * * which [she] intended to keep for [her] own use." There is no explanation in the record as to why Newberry asks for these forms to be signed, but apparently the use of such forms is not unusual. Delp v. Zapp's Drug & Variety Stores, 238 Or. 538, 395 P.2d 137 (Sup. Ct. 1964). Plaintiff refused to sign the form. Earabino then called the police. (After the police came, she did sign it  under police persuasion or duress, she said.) Under all of the foregoing circumstances, we think the judge was justified in holding, as a matter of law, that her detention from about 8:10 to 8:37 was not for an unreasonably long time.
The shoplifting problem is a serious one, and we think the act should be given a construction reasonably calculated to carry out its purpose. That purpose has been described as being "to protect the merchant from substantial shoplifting losses, and to safeguard the innocent customer * * *." Annotation, 90 A.L.R.2d 811 (1963). And see State v. Hales, 256 N.C. 27, 122 S.E.2d 768, 90 A.L.R.2d 804, 809 (Sup. Ct. 1961). In Delp, supra, it was held that a detention for about 30 minutes, under facts quite similar to those at bar, was reasonable as a matter of law. See also Collyer v. S.H. Kress Co., 5 Cal.2d 175, 54 P.2d *19 20 (Sup. Ct. 1936), in which the detention was for about 20 minutes.
We have examined plaintiff's other arguments but find them without substantial merit. Affirmed.
LABRECQUE, J.A.D. (dissenting).
While I am in agreement with the law applicable to the present controversy as set forth in the opinion of the majority, I find myself unable to concur in their conclusion that the judgment of dismissal was proper. The Shoplifting Act authorized detention of the plaintiff for "not more than a reasonable time." What would be a reasonable length of time in a given case would depend upon the evaluation of a number of factors, as the opinion of the majority properly points out. Their evaluation is a task committed to the trier of the facts. Here plaintiff and Earabino were far from being in agreement as to whether she was detained at all and, if so, when she was detained and what transpired during her detention. Two things, however, are certain: she admitted that she had not paid for the stretch pants and offered to do so; her shopping bag revealed nothing further which had come from defendant's store. While there were a number of additional facts in the case which cast suspicion upon plaintiff, their effect upon the issue of the reasonableness of plaintiff's detention was a fact question.
Further, it is far from clear that the trial judge dismissed because of the lack of evidence sufficient to make the reasonableness of plaintiff's detention a fact question in view of his oral holding that:
"The fatal deficiency in the plaintiff's case is their [sic] failure to prove unlawful detention. It is the burden of the plaintiff to prove the absence of legal justification or the absence of probable cause on the part of the defendant's security officer for the detaining of the plaintiff. Under the circumstances I am going to grant the motion."
I would reverse and remand for a new trial.


776 F.Supp.2d 1314 (2011)
Alfred J. DAVIS and Cindy Davis, Plaintiffs,
v.
Lisa P. JACKSON, Administrator of the United States Environmental Protection Agency; A. Stanley Meiberg, Acting Regional Administrator of the United States Environmental Protection Agency Region IV; United States Environmental Protection Agency; City of St. Petersburg, Florida; and David L. Moore, Executive Director, Southwest Florida Water Management District, Defendants.
Case No. 8:09-cv-1070-T-17-TBM.
United States District Court, M.D. Florida, Tampa Division.
March 2, 2011.
*1315 Thomas W. Reese, Law Office of Thomas W. Reese, St. Petersburg, FL, for Plaintiffs.
Martha Collins Mann, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER ON DEFENDANT'S MOTION FOR ATTORNEY'S FEES
ELIZABETH A. KOVACHEVICH, District Judge.
This cause is before the Court on Defendant the City of St. Petersburg's Motion for Attorney's Fees (Doc. 63) and Plaintiffs Alfred J. Davis and Cindy Davis' response thereto (Doc. 64). For the reasons set forth below, Defendant's Motion for Attorney's Fees is DENIED.

BACKGROUND AND PROCEDURAL HISTORY
On February 25, 2010, Plaintiffs, Alfred J. Davis and Cindy Davis, filed an amended eleven-count complaint alleging violations of the Clean Water Act 33 U.S.C. § 1251-1387 and Florida common law against multiple parties, including Defendant *1316 the City of St. Petersburg (hereinafter "City"), in the United States District Court for the Middle District of Florida, Tampa Division. (Doc. 31). Among Plaintiffs' eleven counts, only Counts IX, X, and XI were alleged against the City. (Doc. 31).
Plaintiffs alleged that the City was discharging stormwater into the Clam Bayou estuary in violation of limitations set forth in the National Pollution Discharge Elimination System municipal separate storm sewer system permit issued to the City and the Southwest Florida Water Management District. Count IX was brought pursuant to the citizen suit provision of 33 U.S.C. § 1365(a) and alleged that these discharges were in continuing violation of the Clean Water Act by causing and contributing to water quality standard violations in Clam Bayou. (Doc. 31). Counts X and XI alleged pendent state law causes of action against the City for common law continuing trespass and common law nuisance. (Doc. 31). Plaintiffs sought declaratory relief and injunctive relief on all counts, including relief in the form of ordering the City to "restore the Clam Bayou estuary to water quality standards, including the dredging of stormwater sediment pollution from the Clam Bayou estuary to restore the estuary to its 1978-79 OFW physical dimensions (depths, acreage below mean high water line, and tidal flows)." (Doc. 31).
The City moved to dismiss Plaintiffs' Amended Complaint for insufficient service of process, lack of standing, lack of jurisdiction, failure to state a cause of action, and failure to join indispensable parties. (Doc. 34). On July 19, 2010, this Court granted the City's Motion to Dismiss, determining that Plaintiffs lacked standing to assert a claim under the Clean Water Act. (Doc. 45). This Court's Order reasoned that because the Plaintiffs did not have standing, the City's "bases for dismissal on grounds of lack of jurisdiction, failure to state a claim, and failure to join parties are moot." (Doc. 45).
Shortly thereafter, on August 11, 2010, Plaintiffs filed a Rule 59(e) Motion to Alter or Amend the Judgment regarding the City's dismissal from the case. (Doc. 47). This Court denied that motion on November 18, 2010. (Doc. 58). The City proceeded to file a Motion for Attorney's Fees under 33 U.S.C. § 1365(d), alleging that it is entitled to recover its reasonable attorney's fees on the basis that "Plaintiffs' suit was frivolous and no grounds existed to pursue the suit." (Doc. 63).

DISCUSSION
In the United States, absent special legislation, or an enforceable contract providing otherwise, the general rule is that litigants are required to bear the cost of their own attorney's fees. Ruckelshaus v. Sierra Club, 463 U.S. 680, 684, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983); Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 415, 98 S.Ct. 694, 54 L.Ed.2d 648(1978); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 256, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Hall v. Cole, 412 U.S. 1, 4, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). Congress has set forth limited exceptions to this "American Rule" in selected federal statutes that limit fee awards to prevailing parties, "entrusting the effectuation of the statutory policy to the discretion of the district courts." Christiansburg, 434 U.S. at 415-416, 98 S.Ct. 694. The Clean Water Act contains a fee-shifting provision exemplifying such an exception to the general rule requiring parties to cover their own litigation costs. Christiansburg, 434 U.S. at 416, n. 7, 98 S.Ct. 694. This provision of the Clean Water Act states that a court "may award costs of litigation (including reasonable attorney and expert witness fees) to any *1317 prevailing or substantially prevailing party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d).
However, it must be noted that the prevailing party in a Clean Water Act suit is not automatically entitled to an award of its litigation costs. Case law has interpreted § 1365(d) to possess a dual standard-the burden applied to a prevailing plaintiff seeking attorney's fees is less stringent than that applied to a prevailing defendant seeking the same. Atlantic States Legal Found, v. Onondaga Dep't of Drainage & Sanitation, 899 F.Supp. 84, 87 (N.D.N.Y.1995). A lower burden is placed on a prevailing plaintiff because "the plaintiff is the chosen instrument of Congress to vindicate `a policy that Congress considered of the highest priority.'" Christiansburg, 434 U.S. at 418, 98 S.Ct. 694 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)). Furthermore, "when the plaintiff prevails, he or she has proven that the defendant is a `violator of federal law.'" Sierra Club v. Cripple Creek & Victor Gold Mining Co., 509 F.Supp.2d 943, 950 (D.Colo.2006). "However, when a defendant prevails, different equitable considerations determine whether a fee award is appropriate." Id. If this were not the case, "plaintiffs with legitimate, but not airtight, claims would be discouraged from pursuing such claims." Id.
Thus, it follows that a prevailing defendant may only recover attorney's fees under fee-shifting statutes such as § 1365(d) when the court finds a plaintiffs claims to be "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg, 434 U.S. at 422, 98 S.Ct. 694; Browder v. City of Moab, 427 F.3d 717, 723 (10th Cir.2005). "[A]llowing prevailing defendants to recover fees under the same standards as prevailing plaintiffs would unreasonably deter citizen suits, which Congress sought to encourage, without serving Congress' correlative goal of deterring frivolous actions." National Wildlife Federation v. Consumers Power Co., 729 F.Supp. 62, 64 (W.D.Mich.1989). Therefore, in assessing whether a prevailing defendant is entitled to attorney's fees under a fee-shifting statute by assessing the above criteria, "it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation." Christiansburg, 434 U.S. at 421-22, 98 S.Ct. 694.
Before engaging in an analysis of whether the heightened Christiansburg standard imposed on prevailing defendants has been met by the City's motion for attorney's fees, the threshold question of whether the City is a prevailing party must be addressed. It is axiomatic that there must be a judicial determination on the merits in order for there to be a prevailing party. Marquart v. Lodge 837, Int'l Ass'n of Machinists and Aerospace Workers, 26 F.3d 842, 852 (8th Cir.1994) ("To obtain prevailing party status, a defendant must be able to point to a judicial declaration to its benefit."). Several courts have held that a defendant cannot be a prevailing party when the complaint is dismissed or disposed of for lack of jurisdiction, subject matter or otherwise. See Keene Corp. v. Cass, 908 F.2d 293, 298 (8th Cir.1990) ("Where a complaint has been dismissed for lack of subject matter jurisdiction, the defendant has not `prevailed' over the plaintiff on any issue central to the merits of the litigation." (internal quotation marks and citation omitted)); Daugherty v. Westminster Sch., Inc., 174 F.R.D. 118, 121-22 (N.D.Ga.1997) (noting that a defendant may not recover attorney's *1318 fees under a fee-shifting statute on a claim dismissed for lack of subject matter jurisdiction "even when one could conclude that summary judgment would have been granted [in defendant's favor] had jurisdiction been present"); Sellers v. Local 1598, Dist. Council 88, American Federation of State, etc., 614 F.Supp. 141, 143 (E.D.Pa. 1985) (A "defendant cannot be said to have `prevailed' on an issue which evaporated prior to the court addressing it.").
In the case at bar, the Plaintiffs' claims against the City were disposed of on this Court's Order Granting Defendant's Motion to Dismiss. (Doc. 45). This Court granted the City's dismissal on the basis that Plaintiffs lacked standing under the Clean Water Act to assert their claim. (Doc. 45). Moreover, this Court determined that since the Plaintiffs could not establish the requisite standing, the City's "bases for dismissal on grounds of lack of jurisdiction, failure to state a claim, and failure to join parties are moot." (Doc. 45). The Eleventh Circuit treats a dismissal for lack of standing as the functional equivalent of a dismissal for lack of subject matter jurisdiction. See Cone Corp. v. Fla. Dep't of Transp., 921 F.2d 1190, 1203 n. 42 (11th Cir.1991) ("Because standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction.")
Therefore, in the case at hand there was not a judicial determination on the merits of any claim. See Stalley ex rel. U.S. v. Orlando Regional Healthcare System, Inc., 524 F.3d 1229, 1232 (11th Cir.2008) ("A dismissal for lack of subject matter jurisdiction is not a judgment on the merits and is entered without prejudice."). Despite the City's conclusory declaration that it is the "prevailing party" for the purposes of § 1365(d) (Doc. 63), because the claims in this suit were disposed of for lack of standing, the equivalent of a dismissal for lack of jurisdiction. Cone Corp., 921 F.2d at 1203 n. 42, the City cannot be labeled a "prevailing party." When this Court dismissed the Plaintiffs' claims based upon jurisdictional considerations it cannot be said that the City "prevailed" over Plaintiffs on the merits of any claim in order to justify prevailing party status for the City.
Consequently, whereas § 1365(d) of the Clean Water Act only grants this Court discretion to award fees to the prevailing party, the City cannot be and is not entitled to attorney's fees. The City's failure to pass this crucial threshold questioned renders unnecessary a determination of whether the City met its heightened burden under Christiansburg in order to recover attorney's fees based on the alleged frivolous claims of Plaintiffs. See Marquart, 26 F.3d at 852 ("[P]roof that a plaintiffs case is frivolous, unreasonable, or groundless is not possible without a judicial determination of the plaintiffs case on the merits."). Imposing attorney's fees on a citizens' plaintiff who loses on a purely technical distinction would greatly discourage future plaintiffs from bringing citizens suits to enforce federal statutes considered of paramount importance. The federal government does not have the time and resources to effectively police all federal statutes vigorously. Therefore, citizen suits are a valuable supplement to federal resources and imposing attorney fees and costs on a citizens' plaintiff before this Court could even address the legitimacy of the plaintiffs claim due to a lack of jurisdiction would seriously impede the effectiveness of statutes such as the Clean Water Act. Accordingly, it is ORDERED that Defendant the City of St. Petersburg's Motion for Attorney's Fees (Doc. 63) be DENIED. As all issues and motions have been resolved, there remains nothing further *1319 for this Court to address. The Clerk of Court is directed to close this case.
DONE AND ORDERED.


             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                                JANUARY 1997 SESSION
                                                          FILED
                                                             May 19, 1997
STATE OF TENNESSEE,                         )
                                            )            Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
                     APPELLEE,              )
                                            )     No. 02-C-01-9604-CR-00112
                                            )
                                            )     Shelby County
v.                                          )
                                            )     Joseph B. Brown, Jr., Judge
                                            )
                                            )     (Sentencing)
CHRISTOPHER A. PRENTISS,                    )
                                            )
                   APPELLANT.               )

FOR THE APPELLANT:                          FOR THE APPELLEE:

Terry D. Smart                              John Knox Walkup
Attorney at Law                             Attorney General & Reporter
371 Carroll Avenue                          500 Charlotte Avenue
Memphis, TN 38105                           Nashville, TN 37243-0497

                                            Clinton J. Morgan
                                            Assistant Attorney General
                                            450 James Robertson Parkway
                                            Nashville, TN 37243-0493

                                            William L. Gibbons
                                            District Attorney General
                                            201 Poplar Avenue, Suite 3-01
                                            Memphis, TN 38103

                                            John W. Campbell
                                            Assistant District Attorney General
                                            201 Poplar Avenue, Suite 3-01
                                            Memphis, TN 38103

OPINION FILED:_____________________________________

AFFIRMED

Joe B. Jones, Presiding Judge

                                  OPINION
       The appellant, Christopher A. Prentiss, (defendant), was convicted of vehicular

homicide, a Class C felony, leaving the scene of an accident involving death, a Class E

felony, and driving a motor vehicle after revocation of license, following his pleas of guilty

to these offenses. The trial court imposed the following sentences pursuant to the plea

bargain agreement between the State of Tennessee and the defendant: a fine of $500 and

confinement for three (3) years in the Shelby County Correctional Center for vehicular

homicide; confinement for one (1) year in the Shelby County Correctional Center for

leaving the scene of an accident involving death; and a fine of $150 for driving after the

revocation of driver's license. The sentences are to be served concurrently.

       There was no agreement regarding alternative sentencing. A sentencing hearing

was conducted. The trial court refused to impose an alternative sentence. Thus, the

defendant raises the following issues for review:

              I. The trial judge erred in not considering sentencing principles
              and all relevant facts and circumstances in determining the
              manner of service of defendant's sentence[s].

              II. Whether the manner of service of the sentence[s] imposed
              by the trial court [are] appropriate.

After a thorough review of the record, the briefs submitted by the parties, and the law

governing the issues presented for review, it is the opinion of this Court the judgment of the

trial court should be affirmed.

       The defendant was 28 years of age when he was sentenced. He left school in the

ninth grade. He made an effort to obtain a GED, but he failed the test. He was living with

his parents. He was employed by a farm equipment company in the parts department. He

has a prior conviction for driving without a license.

       On the evening of September 24, 1993, the defendant visited his girlfriend in a

trailer park in Millington. When an argument ensued between the defendant and his

girlfriend, the defendant left the trailer at a high rate of speed. Witnesses estimated the

defendant reached a speed of sixty miles per hour in a thirty mile per hour speed zone.

The defendant struck the victim, a child three and one-half years of age. The impact

                                              2
knocked the child approximately 168 feet. The defendant did not stop after striking the

child.

         The defendant went to the Millington Police Department approximately two hours

after striking the child. The officers observed that the defendant had been drinking. The

defendant refused to submit to a chemical breath test or field sobriety tests. Two officers

expressed the view the defendant's ability to operate a motor vehicle was not impaired.

         The trial court refused to impose an alternative sentence. The court found the

defendant was less than candid when he testified at the sentencing hearing,                 and

confinement was necessary to avoid depreciating the seriousness of the offenses. The

court also noted the defendant was not serious regarding the remorse he expressed. The

defendant testified how the incident had affected him. The defendant did not offer to make

restitution.

         This Court has conducted a de novo review of the record with a presumption that

the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d).

Before an accused is entitled to relief, the accused has the burden of overcoming the

presumption of correctness. In this case, the defendant has failed to overcome the

findings of the trial court.

         The defendant's lack of candor at the sentencing hearing is sufficient to justify the

denial of an alternative sentence. State v. Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim.

App.) per. app. denied (Tenn. 1994); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim.

App. 1987). In vehicular homicide cases, the avoidance of depreciating the seriousness

of the offenses is a valid consideration. Thus, the trial court in the exercise of its discretion

properly refused to grant an alternative sentence.

                                     _____________________________________________
                                           JOE B. JONES, PRESIDING JUDGE

                                               3
CONCUR:

______________________________________
     PAUL G. SUMMERS, JUDGE

______________________________________
       DAVID G. HAYES, JUDGE

                                  4


                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court

                           People v. Gamino, 2012 IL App (1st) 101077

Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    FILADELFO GAMINO, Defendant-Appellant.

District & No.             First District, Fourth Division
                           Docket No. 1-10-1077

Filed                      June 21, 2012

Held                       The dismissal of defendant’s postconviction petition alleging that he was
(Note: This syllabus       denied effective assistance of counsel in his murder trial because his
constitutes no part of     attorney had been placed on interim suspension from practicing law
the opinion of the court   pursuant to a disciplinary proceeding based on her legal ability or moral
but has been prepared      character was reversed and the cause was remanded for a third-stage
by the Reporter of         evidentiary hearing to resolve the factual dispute as to when her
Decisions for the          suspension became effective, and if she was suspended during the trial,
convenience of the         defendant’s petition must be granted and he must be awarded a new trial,
reader.)
                           but if she was allowed to practice law, a Strickland analysis applied and
                           the dismissal should be reinstated based on the trial court’s finding that
                           counsel was not ineffective, since a criminal defendant unknowingly
                           represented by an attorney disbarred or suspended for a reason relating to
                           a lack of legal ability or moral character suffers a per se violation of his
                           right to effective assistance of counsel.

Decision Under             Appeal from the Circuit Court of Cook County, No. 97-CR-3252; the
Review                     Hon. Carol A. Kipperman, Judge, presiding.
Judgment                    Reversed and remanded with directions.

Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Manuel S. Serritos, all of
Appeal                      State Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Miles
                            J. Keleher, and Tracey K. Annen, Assistant State’s Attorneys, of counsel),
                            for the People.

Panel                       JUSTICE FITZGERALD SMITH delivered the judgment of the court,
                            with opinion.
                            Presiding Justice Lavin and Justice Sterba concurred in the judgment and
                            opinion.

                                              OPINION

¶1          Defendant Filadelfo Gamino appeals from the second-stage dismissal of his
        postconviction petition. On appeal, defendant contends that he was denied effective
        assistance of counsel at his trial for first-degree murder when his trial counsel concealed from
        him the fact that disciplinary proceedings were pending against her and she had been placed
        under interim suspension from the practice of law prior to his trial. We reverse and remand
        for a third-stage evidentiary hearing to resolve the factual dispute of whether his trial counsel
        was suspended and unauthorized to practice law during his trial.
¶2          Defendant was charged with the first-degree murder of Jesus Sandoval, who was fatally
        shot in a street confrontation between two rival gangs. Sandoval was a member of the
        Almighty Bishops street gang and defendant was a member of the Latin Counts. Defendant
        was represented in the circuit court by attorney Julie McBride. His bench trial began on April
        16, 1997. One State witness, a police officer, testified that he spoke with defendant on
        December 26, 1996. Defendant told the officer he heard from a friend that two other
        members of the Latin Counts had shot and killed Sandoval. Another officer testified that in
        the following month defendant came to the police station voluntarily and made an oral
        statement, which was reduced to writing and signed by defendant. In his statement, defendant
        admitted he fired the shot that fatally wounded Sandoval on December 14, 1996. At about
        9:30 p.m. on that date, defendant and Rigaberto Castaneda, another Latin Counts member,
        were walking near a park in Cicero when defendant went into a gangway and found a .357-
        caliber handgun hidden under some garbage. Then defendant and Castaneda stood on the
        sidewalk talking with friends when a Chevrolet Tahoe approached them. Defendant

                                                  -2-
     recognized the vehicle as one used by the Almighty Bishops street gang. The occupants of
     the Tahoe began throwing beer bottles at defendant and Castaneda. Defendant ran into a
     gangway, retrieved the .357-caliber handgun, and returned to the street. An individual threw
     a beer bottle that grazed defendant’s head. Defendant fired one shot at the person who threw
     the bottle and saw that man fall to the ground behind the Tahoe. Believing the Tahoe
     occupants were going to continue the dispute, defendant fired two more shots at the Tahoe
     before running from the scene.
¶3       In his defense at trial, defendant testified that he and other Latin Counts members were
     walking near the park on the date in question. Defendant went into a gangway and located
     a .357 Magnum handgun that his gang, the Latin Kings, kept there. He moved the gun to a
     safer place in the gangway and was returning to the sidewalk when a sport utility vehicle
     pulled up and rival gang members jumped out. Defendant took two steps back into the
     gangway and retrieved the gun. The rival gang members began throwing beer bottles and one
     of the bottles grazed defendant’s head, spraying beer on his face and into his eyes. Defendant
     testified that “the gun went off almost half a second after that bottle hit [him].” He fired three
     more shots “in the direction of all the yelling,” and then he ran away.
¶4       The court found defendant guilty of first degree murder. After announcing its findings,
     the court complimented McBride on “a particularly excellent job” in representing defendant.
¶5       On May 27, 1997, the circuit court sentenced defendant to a prison term of 35 years. At
     the sentencing hearing, the court stated: “Attorney Julie McBride did an excellent job of
     representing the defendant and was well prepared in her actions and represented her client
     well.”
¶6       On direct appeal, the sole issue defendant raised was that the circuit court abused its
     sentencing discretion by failing to give adequate consideration to several mitigating factors.
     We affirmed the judgment of the circuit court. People v. Gamino, No. 1-99-0383 (1999)
     (unpublished order under Illinois Supreme Court Rule 23).
¶7       On May 26, 2000, defendant filed a pro se petition under the Post-Conviction Hearing
     Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)). Claiming the denial of effective assistance
     of counsel, defendant’s petition alleged that his trial counsel, Julie McBride, was the subject
     of attorney disciplinary proceedings and was placed on interim suspension from practicing
     law on March 21, 1997, prior to defendant’s bench trial. The petition also contended that
     McBride was ineffective in that she failed to make a pretrial motion to suppress statements,
     interview potential witnesses, prepare witnesses for testimony, or file a posttrial motion to
     reduce sentence. The petition further alleged that McBride was disbarred from the practice
     of law on December 12, 1997, and her petition for reinstatement was denied on July 6, 1998.
     The following documents were appended to the postconviction petition:
              Letter dated May 16, 2000, addressed to Theresa Belcastro, from a senior paralegal
         with the Attorney Registration and Disciplinary Commission (ARDC), stating that
         ARDC records indicated: Attorney Julie McBride was served with a formal complaint
         relating to her attorney disciplinary matter on December 19, 1995; a hearing was held
         before the Hearing Board on August 15-16, 1996; the Hearing Board issued a report on
         December 17, 1996, recommending that McBride be disbarred; McBride filed exceptions

                                                -3-
            before the Review Board; on December 12, 1997, the Review Board also recommended
            that McBride be disbarred; McBride filed a petition in the Illinois Supreme Court,
            requesting leave to file exceptions to the Review Board’s recommendation; and on July
            6, 1998, the supreme court denied the petition and disbarred McBride. The letter also
            stated that “on March 21, 1997, Julie McBride was suspended on an interim basis
            pursuant to Illinois Supreme Court Rule 774”;
                 Illinois Supreme Court Rule 774, “Interim Suspension” (eff. March 25, 1991);
                 Affidavits from defendant, his father and his mother, and a friend, Theresa Belcastro;
            and
                 Certified copy of “Report and Recommendation” of the ARDC Review Board, filed
            December 12, 1997, recommending that McBride be disbarred.
¶8          The court appointed counsel to represent defendant in the postconviction proceedings.
       On October 9, 2009, an assistant public defender filed a certificate pursuant to Illinois
       Supreme Court Rule 651(c) (eff. Dec. 1, 1984), stating that she had consulted with defendant,
       his pro se petition adequately presented his issues, and a supplemental petition would not be
       presented.
¶9          On January 22, 2010, the State filed a motion to dismiss defendant’s postconviction
       petition, responding to allegations of ineffectiveness of defendant’s trial counsel. In response
       to defendant’s claim that his trial counsel was under interim suspension during his trial, the
       State attached to its motion a written order of the Illinois Supreme Court dated May 30,
       1997, in the matter of McBride’s disciplinary proceedings. The order stated: “The rule to
       show cause that issued to respondent Julie Jane McBride pursuant to Supreme Court Rule
       774 on March 21, 1997, is enforced, and respondent is suspended from the practice of law
       effective immediately and until further order of Court.”
¶ 10        On April 9, 2010, the circuit court granted the State’s motion to dismiss defendant’s
       postconviction petition. The court ruled that the claimed instances of ineffective assistance
       of trial counsel involved matters of trial strategy, and that defendant’s claim that his counsel
       failed to investigate his case was unsupported by affidavit of any witnesses. The court made
       no reference to defendant’s claim that his trial attorney’s license to practice law had been
       suspended when she represented defendant at his trial.
¶ 11        On appeal, defendant contends that his representation at trial by an unlicensed attorney
       constituted per se ineffectiveness of counsel as a matter of law. The State responds that a per
       se rule of ineffectiveness of counsel is inappropriate and that the correct standard is the two-
       prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland
       requires a showing of both deficient performance by counsel and prejudice to the defendant
       from the deficient performance. People v. Hodges, 234 Ill. 2d 1, 17 (2009); People v.
       Johnson, 218 Ill. 2d 125, 143-44 (2005).
¶ 12         At the second stage of postconviction proceedings under the Act, the defendant bears the
       burden of making a substantial showing of a constitutional violation. People v. Pendleton,
       223 Ill. 2d 458, 473 (2006). The State may file a motion to dismiss or an answer to the
       petition, and the court must then determine whether the petition and any accompanying
       documentation make a substantial showing of a constitutional violation. People v. Wilborn,

                                                 -4-
       2011 IL App (1st) 092802, ¶ 61. The trial court is foreclosed from engaging in fact-finding
       at this stage because all well-pleaded facts are to be taken as true unless they are rebutted by
       the record. People v. Wheeler, 392 Ill. App. 3d 303, 308 (2009). Unless a substantial showing
       of a constitutional violation is established by the allegations in the petition, supported by the
       trial record and accompanying affidavits, the defendant is not entitled to an evidentiary
       hearing. People v. Harris, 206 Ill. 2d 293, 299-300 (2002). The dismissal of a postconviction
       petition at the second stage is a question of law, which we review de novo. People v.
       Simpson, 204 Ill. 2d 536, 547 (2001).
¶ 13        Defendant contends he was entitled to an evidentiary hearing because he made a
       substantial showing of a constitutional deprivation sufficient to advance his petition to the
       third stage of the postconviction proceedings when he demonstrated that he “had an
       unlicensed and unqualified attorney representing him at his trial.” For the following reasons,
       we agree.
¶ 14        No Illinois court has previously considered the appropriate standard to apply in
       evaluating the adequacy of a criminal defendant’s representation by an attorney who was
       suspended or disbarred at the time of defendant’s trial. Instead, we have held only that the
       performance of an attorney subject to disciplinary proceedings while engaged in the
       representation of a criminal defendant should be evaluated under Strickland. See, e.g., People
       v. Bernardo, 171 Ill. App. 3d 652, 660 (1988); People v. Szabo, 144 Ill. 2d 525, 529-31
       (1991); People v. Chatman, 357 Ill. App. 3d 695, 703 (2005).
¶ 15        In the case sub judice, however, defendant contends McBride was not merely subject to
       disciplinary proceedings, but in fact was suspended from the practice of law during his trial
       that commenced on April 16, 1997. Specifically, defendant alleges McBride was subject to
       an interim suspension pursuant to Illinois Supreme Court Rule 774 (eff. July 1, 1984),
       beginning March 21, 1977, after which date she was not authorized to practice law.
¶ 16        A suspended or disbarred attorney stands in stark contrast to one who is merely under
       investigation. Indeed, the former is not entitled to the label “counsel,” as our supreme court
       has held that “for constitutional purposes, the term ‘counsel’ means ‘a duly licensed and
       qualified lawyer, and not an attorney in fact or a layman.’ ” (Emphasis added.) In re Denzel
       W., 237 Ill. 2d 285, 296 (2010) (quoting People v. Cox, 12 Ill. 2d 265, 269 (1957)).
       Importantly, where an accused is not provided with counsel, no showing of prejudice is
       necessary before he is entitled to relief. United States v. Cronic, 466 U.S. 648, 659 n.25
       (1984). Instead, it is only where counsel has been provided that we consider the inadequacy
       of representation and any resulting prejudice to defendant under the two-pronged Strickland
       inquiry. People v. Allen, 220 Ill. App. 3d 772, 781 (1991) (citing Strickland, 466 U.S. at
       687). Accordingly, we hold that where a defendant is represented by a lawyer who is not
       licensed or qualified, the defendant has not been provided with “counsel” as defined by our
       supreme court and, consequently, a Strickland analysis is inappropriate.
¶ 17        Courts in other jurisdictions have employed similar reasoning to hold that where a
       criminal defendant is represented by an individual who is not licensed for reasons reflecting
       an incompetence to practice law (Commonwealth v. Grant, 2010 PA Super 45, ¶ 19), or for
       reasons going to the competency of the attorney to represent litigants or personal

                                                 -5-
       characteristics of the attorney (People v. Hinkley, 238 Cal. Rptr. 272, 275 (Cal. Ct. App.
       1987); Solina v. United States, 709 F.2d 160, 167 (2d Cir. 1983)), the defendant suffers a per
       se violation of his right to effective assistance of counsel.
¶ 18        Solina is particularly instructive. There, the Second Circuit Court of Appeals held that
       where, unbeknownst to the defendant, his representative was denied authorization to practice
       law, and this denial was for a reason going to legal ability or want of moral character, this
       amounted to a per se sixth amendment violation. Id. The court reasoned that one who
       practices law without a license is engaged in a crime, and “[s]uch a person cannot be wholly
       free from fear of what might happen if a vigorous defense should lead the prosecutor or the
       trial judge to inquire into his background and discover his lack of credentials. Yet a criminal
       defendant is entitled to be represented by someone free from such constraints.” Id. at 164;
       see also United States v. Mouzin, 785 F.2d 682, 699 (9th Cir. 1986) (noting that an individual
       perpetrating a fraud on the court may be wary of providing rigorous representation).
¶ 19        We distinguish the instant case from that of People v. Williams, 226 Ill. App. 3d 188
       (1992), cited by the State. There, we declined to apply a per se rule of ineffectiveness where,
       prior to defendant’s trial, the supreme court had ordered that defense counsel’s law license
       be suspended, but where we suggested that the pendency of counsel’s petition for rehearing
       authorized him to continue to practice law in Illinois during the trial of defendant’s case. Id.
       at 189. The State also refers us to People v. Allen, 220 Ill. App. 3d 772, 781 (1991), which
       we also find inapposite. There, defense counsel’s suspension had expired at the time the
       defendants’ trial began, rendering him once again authorized to practice law. Here, in
       contrast, defendant alleges McBride was suspended both prior to and during the course of
       his trial. Therefore, just as in Cox, where a defendant was represented by a layman posing
       as a lawyer, defendant here was also without the benefit of representation by a “duly licensed
       and qualified lawyer,” in contravention of his rights under the sixth amendment. See Cox,
       12 Ill. 2d at 269; see also Holloway v. Arkansas, 435 U.S. 475, 489 (1978).
¶ 20        We also distinguish this case from that of People v. Brigham, 151 Ill. 2d 58 (1992),
       where our supreme court held that representation by an attorney who has been suspended for
       nonpayment of bar dues does not, standing alone, establish a violation of a defendant’s sixth
       amendment right to counsel. Courts have frequently distinguished between defects in
       licensing that were merely technical, such as the nonpayment of dues, versus those that called
       into question an individual’s ability to represent clients. Solina, 709 F.2d at 167; Grant, 992
       A.2d at 159; Hinkley, 238 Cal. Rptr. at 275.
¶ 21        A similar distinction is appropriate here. McBride’s suspension was not based on a mere
       technical licensing defect. Rather, according to defendant, from the time of McBride’s
       application to the bar until her suspension and ultimate disbarment, she exhibited a pattern
       of dishonest behavior. For example, when applying to the Illinois bar, McBride failed to
       disclose a shoplifting conviction and provided false testimony before the Character and
       Fitness Committee. Subsequently, she misrepresented her social security number on bank
       credit applications, made false representations to avoid paying bills, and converted and
       commingled client funds. Taking these allegations as true, as we must for purposes of
       reviewing a second-stage postconviction proceeding (People v. Wheeler, 392 Ill. App. 3d
       303, 308 (2009)), McBride failed to meet several substantive eligibility requirements for the

                                                 -6-
       practice of law, including the requirements to conduct oneself reliably in fulfilling
       obligations to clients and creditors, and to use honesty and good judgment in financial
       dealings on behalf of oneself and others. Ill. S. Ct. R. 708(c)(7), (8) (eff. July 1, 2007). This
       type of conduct goes far beyond mere nonpayment of dues and reflects a lack of moral
       character that, coupled with her alleged suspension, ultimately rendered McBride incapable
       of providing effective assistance as a matter of law.
¶ 22        We therefore hold that a criminal defendant who is unknowingly represented by an
       individual who has been disbarred or suspended from the practice of law for any reason
       relating to lack of legal ability or moral character suffers a per se violation of his sixth
       amendment right to effective assistance of counsel.
¶ 23        Defendant also contends that the State’s motion to dismiss was an inappropriate vehicle
       to litigate defendant’s claim because an attachment to the postconviction petition, an ARDC
       letter stating that McBride was under interim suspension during defendant’s trial, appeared
       to be contradicted by a supreme court order appended to the State’s motion to dismiss,
       creating a factual dispute that only an evidentiary hearing could resolve. We concur. “Factual
       disputes raised by the pleadings *** can only be resolved through a third-stage evidentiary
       hearing.” People v. Jones, 399 Ill. App. 3d 341, 357 (2010) (citing People v. Coleman, 183
       Ill. 2d 366, 380-81 (1998)).
¶ 24        The relevant question here was whether McBride was under suspension and unauthorized
       to practice law when she represented defendant at trial. That critical fact was in dispute and
       unresolved by the trial court. Consequently, we reverse the trial court’s order dismissing
       defendant’s postconviction petition and remand this cause to the circuit court for a third-stage
       evidentiary hearing with directions to resolve the factual dispute as to when McBride’s
       suspension became effective. If the court determines McBride’s license was suspended
       during her representation of defendant in the instant case, the postconviction petition must
       be granted and defendant must be awarded a new trial. On the other hand, if the evidence at
       the hearing establishes that McBride was allowed provisionally to practice law during the
       time she represented defendant in the instant case and her suspension did not commence until
       after defendant’s sentencing hearing, the appropriate standard is the Strickland analysis. As
       the circuit court previously has rejected defendant’s allegations in his petition of inadequate
       representation by McBride, the appropriate remedy in that event would be to reinstate the
       dismissal of the postconviction petition.
¶ 25        Accordingly, we reverse the order dismissing defendant’s postconviction petition and
       remand for a third-stage evidentiary hearing in accord with our directions.

¶ 26       Reversed and remanded with directions.

                                                 -7-