     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STRENGTH FOR TODAY,

 3          Plaintiff-Appellee,

 4 v.                                                                                NO. 33,957

 5 KENNETH ENRIQUEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
 8 James Lawrence Sanchez, District Judge

 9 Law Offices of Sylvain Segal
10 Sylvain Segal, Jr.
11 Albuquerque, NM

12 for Appellee

13 Kenneth Enriquez
14 Los Lunas, NM

15 Pro Se Appellant

16                                 MEMORANDUM OPINION

17 VANZI, Judge.
1   {1}   Summary affirmance was proposed for the reasons stated in the notice of

2 proposed summary disposition. No memorandum opposing summary affirmance has

3 been filed, and the time for doing so has expired.

4   {2}   AFFIRMED.

5   {3}   IT IS SO ORDERED.

6                                        __________________________________
7                                        LINDA M. VANZI, Judge

8 WE CONCUR:

 9 _________________________________
10 JONATHAN B. SUTIN, Judge

11 _________________________________
12 MICHAEL E. VIGIL, Judge

                                            2


               IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT

                                  No. 00-50860
                                Summary Calendar

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

MARTIN GARCIA-GARCIA,

                                                         Defendant-Appellant.

                   Appeals from the United States District Court
                        for the Western District of Texas
                          USDC No. A-00-CR-79-1-SS

                                  May 17, 2002

Before POLITZ, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

      Martin Garcia-Garcia appeals his sentence following a guilty plea to illegal

      *
          Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
reentry into the United States after having been previously deported. He asserts that

the district court erred by applying a 16-level increase to his offense level based on a

prior aggravated felony conviction, contending that none of his prior convictions

qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43). Concluding that

Garcia has no previous aggravated felony convictions, we must vacate the sentence and

remand for re-sentencing.

      As part of his guilty plea, Garcia signed a waiver of appeal which precludes him

from appealing his plea unless he can demonstrate that it was not knowing and

voluntary. The government has explicitly elected not to enforce the waiver and we

therefore address the inquiry whether Garcia’s sentence should be vacated.1

      To qualify as an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(A),

Garcia’s prior offense must be “a crime of violence . . . for which the term of

imprisonment [is] at least one year” or a “burglary offense for which the term of

imprisonment [is] at least one year.”2 “The phrase ‘term of imprisonment’ refers to

‘the period of incarceration or confinement ordered by a court of law regardless of any

      1
          United States v. Rhodes, 253 F.3d 800, 804 (5th Cir. 2001).
      2
          8 U.S.C. § 1101(a)(43).
                                           2
suspension of the imposition or execution of that imprisonment.’”3 Garcia has two prior

convictions upon which the enhancement potentially could have been predicated. He

previously was convicted of burglary of a vehicle for which he was sentenced to less

than one year of imprisonment, and for driving while intoxicated for which he was

sentenced to over one year of imprisonment. Because Garcia was sentenced to less

than one year for his burglary conviction, that offense could not have qualified as an

aggravated felony conviction justifying the 16-level increase.

      At the time of Garcia’s plea and sentencing, our holding in Camacho-Marroquin

v. Immigration and Naturalization Service4 established that a Texas felony DWI offense

was a crime of violence for purposes of 18 U.S.C. § 16(b).5 Camacho-Marroquin was

subsequently withdrawn, but not until after Garcia’s sentencing. While Garcia’s appeal

was pending, we held in United States v. Chapa-Garza,6 that a felony DWI conviction

is not a crime of violence for purposes of 18 U.S.C. § 16(b).7 Changes in sentencing

law that occur between sentencing and appeal that benefit the defendant require

      3
        United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir. 2001) (citing
8 U.S.C. § 1101(a)(48)(B)).
      4
          188 F.3d 649 (5th Cir. 1999).
      5
          Id. at 652.
      6
          243 F.3d 921 (5th Cir. 2001).
      7
          Id. at 927.
                                          3
reversal and remand for re-sentencing.8 Accordingly, Garcia should be re-sentenced

without the 16-level increase under U.S.S.G. § 2L1.2(b)(1)(A).

      The sentence imposed by the district court is VACATED and this case is

REMANDED for re-sentencing.

      8
          United States v. Cervantes-Nava, 281 F.3d 501, 506 (5th Cir. 2002).
                                          4


                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                           NOV 27 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

JOE PIAZZA, Jr.,                                 No. 11-55621

               Plaintiff - Appellant,            D.C. No. 2:07-cv-01202-DOC-CW

  v.
                                                 MEMORANDUM *
FEDERAL BUREAU OF PRISONS; et
al.,

               Defendants - Appellees.

                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Joe Piazza, Jr., appeals pro se from the district court’s judgment dismissing

his action brought under Bivens v. Six Unknown Named Agents of Federal Bureau

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of Narcotics, 403 U.S. 388 (1971) and the Federal Torts Claim Act alleging

constitutional violations. We dismiss.

      We lack jurisdiction to consider Piazza’s challenges to the underlying

judgment because Piazza failed to file a timely notice of appeal as to the

underlying judgment. See Fed. R. App. P. 4(a) (notice of appeal must be filed

within sixty days after judgment if one of the parties is the United States); see also

Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988) (the appellate

court will not “strain to characterize artificially” a postjudgment filing “merely to

keep the appeal alive”).

      DISMISSED.

                                           2                                    11-55621


475 F.Supp. 1 (1977)
Betty CALHOUN et al.
v.
UNITED STATES of America et al.
Civ. No. 76-937-E.
United States District Court, S. D. California.
May 26, 1977.
*2 J. Warren Beall, Oceanside, Cal., for plaintiffs.
Terry Knoepp, U. S. Atty., Donald F. Shanahan, Asst. U. S. Atty., San Diego, Cal., for defendants.

MEMORANDUM DECISION AND ORDER
ENRIGHT, District Judge.
This case presents an important application of a court-made exception to the Federal Tort Claims Act for injuries arising incident to military service. Plaintiffs, the survivors of a Marine Corps recruit, have brought this action for wrongful death against the United States and individuals in decedent's chain of command. Defendants have filed a motion to dismiss, or in the alternative, for summary judgment. Upon duly considering the oral argument of counsel on May 16, 1977 and all the memoranda, affidavits and exhibits submitted in support thereof, this court does hereby grant defendants' motion to dismiss this action.

I
Before attending to the merits of this motion, a brief statement of the facts of this case is necessary to put this court's decision in its proper perspective.
The decedent, Lynn E. McClure, first applied for enlistment into the United States Marine Corps in Lufkin, Texas on September 24, 1975. His vocational aptitude (ASVAB) test score in the seventh percentile caused a rejection of his application. On November 12, 1975 decedent reapplied in Austin, Texas and received a passing score in the fifty-ninth percentile. In his second application decedent made false statements that he had not previously applied to enlist in the Corps, that he had never been confined in a mental institution, and that he had never been arrested for or convicted of an offense.
Upon the false application decedent was accepted into the Corps. He signed an enlistment contract for a four-year term on November 14, 1975 and arrived at the Marine Corps Recruit Depot in San Diego the following day. Twice within the next three weeks decedent went on unauthorized leave and was confined to correctional custody for a period of seven days. After his release, on December 6, 1976, decedent was assigned to the "motivation platoon." It is not disputed that on this date decedent was compelled to engage in several pugil stick training bouts at the direction of the supervising officer. During one of these bouts decedent fell unconscious. He was transported to the Naval Hospital in San Diego and later transferred to the Veterans Administration Hospital in Houston, where he died on March 13, 1976.
Plaintiffs filed administrative claims with the Department of the Navy on April 3, 1976, which were denied by lapse of six months.[1] The complaint in this action was filed October 6, 1976, alleging wrongful death under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., and deprivation of constitutional rights contained in Article I, Section 8 and the Fourth, Fifth, Eighth and Thirteenth Amendments under 28 U.S.C. § 1331. Plaintiffs allege that the enlistment contract entered by decedent was voidable by reason of his incompetency, and further that the recruitment of decedent and his death were caused by violations of the Marine Corps' own regulations.

II
A motion to dismiss an action for failure to state a claim or for want of subject matter jurisdiction may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support *3 of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Sherman v. Yakahi, 549 F.2d 1287 (9th Cir. 1977). It is apparent that defendants' motion to dismiss is founded upon both lack of subject matter jurisdiction and failure to state a claim for which relief can be granted. Federal Rule of Civil Procedure 12(b)(1) and (6). The above-quoted standard is often cited in Rule 12(b)(6) motions, but is equally applicable in motions challenging subject matter jurisdiction when such jurisdiction may be contingent upon factual matters in dispute.
Initially, defendants move to dismiss the cause of action for wrongful death under the Federal Tort Claims Act upon the ground that the court-made exception to the Act pronounced in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) bars such a claim. The Court held that the United States is not liable under the Act "for injuries to [active duty] servicemen where the injuries arise out of or are in the course of activity incident to service." Supra, at 146, 71 S.Ct. at 159. The rationale for this limitation on liability includes the maintenance of discipline in the relationship between the serviceman and his or her superiors, the orderly conduct of military affairs by eliminating the duty to defend lawsuits, and the uniform system of compensation for injuries to servicemen established by Congress.[2]Supra, at 141, 144, 71 S.Ct. 153; Henninger v. United States, 473 F.2d 814, 815-16 (9th Cir. 1973). The Court of Appeals for the Ninth Circuit in Henninger, supra, has strictly applied the Feres Doctrine by holding that it "absolutely bars Federal Tort Claims actions by serviceman." (emphasis added).
Plaintiffs contend that two factors existing in the instant case should preclude an application of the Feres bar. First, they contend that decedent's alleged mental incompetency at the time of execution of the enlistment contract creates a voidable obligation. They argue that this voidability eliminates not only the duty of service but other constraints, such as the Feres limitation on tort liability. Second, they contend that a violation of Marine Corps regulations[3] either precludes application of the Feres Doctrine or creates a due process violation for which plaintiffs should be afforded recovery.
For several reasons the court is not persuaded that mental incompetency at the time of execution of an enlistment contract, if proven, would create an exception to the Feres Doctrine. First, the factual determination of competency creates precisely the type of operation which the Ninth Circuit in Henninger, supra, sought to avoid. There, plaintiff adjured the court to make a determination on the effect his suit would have on military discipline. That court declined *4 to make any factual determinations which would limit its "absolutist reading of Feres" because "nearly every case would have to be litigated and it is the suit, not the recovery, that would be disruptive of discipline and the orderly conduct of military affairs." Henninger, supra at 815-16.
Second, while the court is conscious of the trend of the law to apply modern contract principles to military enlistment contracts, Novak v. Rumsfeld, 423 F.Supp. 971, 972 (N.D.Cal.1976), the power to avoid a contract must accrue equally to all parties. This court would not formulate a rule of voidability for an enlistee's misrepresentations that would operate to deprive that serviceman of statutory medical or death benefits for injuries suffered incident to military service. For example, if decedent had not died but had suffered a permanent disability, this court would not authorize a withholding of medical benefits on the ground that the enlistment contract was voidable as a result of decedent's enlistment misrepresentations.[4]
Third, the court finds that case law would not support avoidance of the Feres rule by assertion of incompetency to contract for military service. In Southard v. United States, 397 F.Supp. 409 (E.D.Pa.1975), aff'd 535 F.2d 1247 (3rd Cir. 1976), plaintiff unsuccessfully attempted to avoid the Feres rule by contending that malpractice in his preinduction physical created a void and illegal induction. Also germane to plaintiffs' contention of incompetency is the case of Henninger, supra. There, the court found that the United States was not estopped from invoking the Feres Doctrine because it made misrepresentations which indirectly caused that plaintiff's injury. That court held that no representations by Government agents could waive the immunity granted by the Feres Doctrine. Plaintiffs here contend that Government agents were remiss in failing to detect decedent's incompetency prior to induction. It is clear that neither malpractice, misrepresentation, nor omission by a Government agent affect the bar to suit established by Feres.[5]
Similarly, alleged violation of Marine Corps regulations cannot affect this impediment to recovery. The conduct of an officer, albeit in violation of Marine Corps regulations, does not waive the Government's immunity. Henninger, supra. In McCord v. United States, 377 F.Supp. 953 (M.D.Tenn.1972), aff'd 477 F.2d 599 (6th Cir. 1973), the court rejected an argument that a violation of regulations would preclude the application of Feres.
The result is not changed by the fact that Sgt. Klay was negligent in the conduct of cleaning his weapon, or even that it was a needless act which was unauthorized at this particular station. The crucial element is that the accident resulted from activities engaged in by active duty personnel in the course of military duty. (emphasis supplied).
Supra, at 954.
Thus, the United States may not be sued for injuries incurred incident to military service. Once this immunity is established it is certain that the individual defendants are also immune from suit. It is clearly the law in this circuit that one soldier may not sue another for injuries suffered attendant to military service. Bailey, supra; Mattos v. United States, 412 F.2d 793 (9th Cir. 1969). This rule must certainly apply to all individual defendants who were joined merely because they were superiors in decedent's chain of command.

III
Plaintiffs additionally seek recovery for alleged infringement of constitutional *5 rights. The court finds that the theory of constitutional deprivation is essentially a restatement of the cause of action in tort. In a similar case presenting a dual theoretical basis, Rotko v. Abrams, 338 F.Supp. 46 (D.Conn.1971), aff'd 455 F.2d 992 (2d Cir. 1972), decedent's survivors sought recovery for the death of decedent in Vietnam under the Federal Tort Claims Act and for alleged violation of constitutional rights. Citing the broad Ninth Circuit holding in United States v. Lee, 400 F.2d 558 (1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969), that court held that the action was barred under the Feres rule because "it is the status of the claimant as a serviceman rather than the legal theory of his claim which governs in such cases." Rotko, supra, at 47.
Moreover, there is some authority to limit recovery for alleged constitutional deprivations when the claim is customarily recognized under existing bodies of state tort law or the Federal Tort Claims Act, which incorporates state tort law.[6] In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), plaintiff brought an action in federal court under the Fourteenth Amendment and civil rights statutes to redress an allegedly libelous statement by a local police officer. The Court found that the Fourteenth Amendment's Due Process Clause should not be extended and superimposed upon pre-existing systems of state tort law. The decision is germane to the instant case. Absent the deprivation of a recognized constitutional right, it would subvert the application of the Federal Tort Claims Act and its defined exceptions to allow a litigant to superimpose over that body of law extensions of constitutional rights which were never intended to apply in this context.
This court does not hold that a constitutional provision will never override the Act or doctrines adopted thereunder. Indeed, the Constitution remains the "supreme Law of the Land." Article VI. The court holds only that the instant case presents issues to be resolved under the Federal Tort Claims Act and does not raise any recognized constitutional deprivation.[7]
Accordingly, the court does not hereby find that the motion to dismiss is granted as to all defendants. Judgment shall be entered accordingly.
NOTES
[1]  28 U.S.C. § 2675(a).
[2]  The Feres decision outlined the uniform compensation system then available to injured servicemen. Supra, 340 U.S. at 144, n. 12, 71 S.Ct. 153. Congress has subsequently enacted a uniform system of death benefits for survivors of servicemen who die while on active duty. 10 U.S.C. § 1475 et seq. Such compensation includes the payment of a death gratuity (§§ 1475-1480) and expenses incident to death (§ 1482). Although the benefits provided by Congress do not approach the amounts prayed for in the instant complaint, the disparity is not persuasive to a court considering an action to which the Feres Doctrine is potentially applicable. Judge Chambers stated in Bailey v. Van Buskirk, 345 F.2d 298 (9th Cir. 1965):

The military service does not leave those permanently injured in the line of duty uncompensated. Congress has attended to such things in a reasonably adequate way. All we deny plaintiff-appellant is a remedy he likes better.
In the years since Feres, the courts have often commented upon the harsh results generated by application of the doctrine. However, despite invitations to correct this interpretation of the Federal Tort Claims Act in Feres, supra, 340 U.S. at 138, 71 S.Ct. 153, and in later decisions, e. g., United States v. Lee, 400 F.2d 558 (9 Cir. 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969), no amendments have been enacted. The passage of twenty-seven years since the Feres decision leaves little doubt as to congressional intent in this area.
[3]  Plaintiffs cite no specific regulations that were violated. However, they generally contend that Marine Corps regulations pertaining to the recruitment, detention and training of decedent were infringed.
[4]  This court does not hold that an enlistment contract is never voidable. It merely holds that military benefits cannot be obtained or withheld by claiming voidability after the occurrence of an injury for which those benefits are sought.
[5]  This court need not decide whether plaintiffs are estopped from asserting incompetency. It was argued by defendants that the misrepresentations of decedent prevented discovery of his incompetency. See United States v. Georgia-Pacific Co., 421 F.2d 92, 96 (9th Cir. 1970). The court's resolution above makes determination of this issue unnecessary.
[6]  Whether the United States is liable under the Act depends upon whether a private individual under similar circumstances would be liable under state law. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963).
[7]  For example, despite decedent's status as an enlistee, it is clear that even conscripted service does not violate the Thirteenth Amendment. United States v. Gidmark, 440 F.2d 773 (9th Cir.), cert. denied, 404 U.S. 868, 92 S.Ct. 141, 30 L.Ed.2d 112 (1971). Historically, the prohibition against "cruel and unusual punishments" under the Eighth Amendment has been limited to criminal punishment. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). There is no support for the proposition that recovery may be obtained against those other than law enforcement officers for violation of the Fourth Amendment. See, 28 U.S.C. § 2680(h); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Nor is there support for extending the rule of Bivens, supra, to Fifth Amendment due process violations. Archuleta v. Callaway, 385 F.Supp. 384, 388 (D.Colo. 1974). No comment need be made upon plaintiffs' allegation of Article I violations.


(2008)
Jackie WARD, Plaintiff,
v.
ESTALEIRO ITAJAI S/A, A Metalnave Company, et al., Defendants.
Case No. 05-61821-CIV.
United States District Court, S.D. Florida.
March 31, 2008.

ORDER
WILLIAM J. ZLOCH, District Judge.
THIS MATTER is before the Court upon Defendants' Motion To Reconsider Or Stay The Effect Of The Court's Order Allowing Financial Worth Discovery (DE 190). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises.

I.
Plaintiff entered into negotiations with Defendants for the construction of a new luxury motor yacht to replace her present one. The vessel was to be crafted to Plaintiffs precise specifications, and the terms of the construction, sale, and purchase of the yacht were governed by the Vessel Construction Agreement. DE 78, Ex. B (hereinafter "Agreement"). After the time set for construction to begin, but before the completion date set by the Agreement, the Parties' relationship broke down and Plaintiff terminated the contract. Plaintiff alleges that she did so in exercise of her rights under the Agreement, because Defendant Estaleiro failed to meet certain construction benchmarks and was therefore in default. Thereafter, Plaintiff initiated this action, asserting claims for breach of contract and fraud in the inducement against Estaleiro and two of its individual employees, Francisco Wlasek and Paulo Rolim. The basis of Plaintiffs fraud claim is her allegation that Defendants never had the means, and thus, the intention, to construct her vessel, but negotiated with her nonetheless. With her fraud claim, Plaintiff has included a prayer for punitive damages. It is this relief that gives rise to the instant Motion.
In an effort to discover financial worth information related to her prayer for punitive damages, Plaintiff propounded Interrogatories and Requests To Produce to Defendants Wlasek and Rolim. Defendants moved for a protective order, arguing that Florida Statutes § 768.72(1) requires that before Plaintiff may engage in financial worth discovery, she must receive leave of court by showing a reasonable basis for recovery on her punitive damages claim. See DE 152. In its prior Order denying Defendants a protective order, the Court ruled that § 768.72(1) is a procedural modification to Federal Rule of Civil Procedure 8 and therefore inapplicable in a diversity action. See DE 186. Defendants now move for the Court to revisit its decision. In support thereof, Defendants cite to several non-binding cases from this District that have found § 768.72(1) contains a substantive element relevant to discovery and applied it in diversity actions.
The Court has carefully reviewed Defendants' thoroughly briefed Motion and the cases cited therein. While mindful of the cases in this District that have found § 768.72 applicable to diversity proceedings, the Court finds their reasoning unpersuasive. Rather, consistent with its prior Order (DE 186), the Court finds that § 768.72 is clearly a procedural alteration to Rule 8. The statute's full force and effect is contemplated at the pleading stage, and a second substantive step at discovery is unsupported by the statute's text. However, if the Court were to find that an inexplicable second step lay beneath the plain meaning of the text of § 768.72, the Court would be bound to analyze whether that statute and its requisite showing conflicted with Rule 26. For the reasons expressed more fully below, the Court finds that § 768.72 would directly conflict with Rule 26 and the procedures governing discovery in federal courts. Therefore, because Rule 26 violates neither the Rules Enabling Act nor the Constitution, the Court is bound to apply it and disregard § 768.72. Further, the Court finds that the application of Rule 26 would not result in an inequitable administration of the laws or encourage forum shopping by parties seeking punitive damages in Florida courts.

II.
It is well established that when a federal district court exercises its diversity jurisdiction, the court is bound to apply state substantive law and federal procedural law. Walker v. Armco Steel Corp., 446 U.S. 740, 745, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see Rules of Decision Act, 28 U.S.C. § 1652 (2006). The longstanding problem that has bewildered civil procedure students and federal judges alike is how to determine whether a particular law is substantive or procedural. The question has served as fodder for much academic literature and vexed the federal courts for over a century. Walker, 446 U.S. at 744, 100 S.Ct. 1978 ("The question of whether state or federal law should apply ... has troubled this Court for many years.").[1]
The seminal case in addressing this question is Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Under Hanna, when both a state law and Federal Rule are potentially applicable, a district court must determine whether the state provision conflicts with the Federal Rule. Vacation Break U.S.A., Inc. v. Marketing Response Group & Laser Co., Inc., 189 F.R.D. 474, 478 (M.D.Fla.1999) (citing Hanna, 380 U.S. at 471, 85 S.Ct. 1136). If there is a conflict, the court must apply the Federal Rule unless it is beyond the scope of the Rules Enabling Act or is unconstitutional. Id. (citing Hanna, 380 U.S. at 471, 85 S.Ct. 1136). As Hanna explained:
When a situation is covered by one of the Federal Rules ... the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, [the Supreme] Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions.
Hanna, 380 U.S. at 471, 85 S.Ct. 1136 (citations omitted). Over time, Hanna's formulation of the situation being "covered by one of the Federal Rules" has been morphed into an inquiry of whether there is a "conflict" between the state and federal rule. See e.g., Walker, 446 U.S. at 749, 100 S.Ct. 1978; Cohen v. Office Depot, Inc., 184 F.3d 1292, 1296-97 (11th Cir. 1999), vacated in part on other grounds, Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir.2000). While precision in language is paramount to the craft of a jurist, the revised wording does little to alter the test. When the Federal Rule is said to cover the situation, there is a conflict; when it is not so broad as to cover the situation, no conflict will be found.
The holding of Hanna must be read in the context of its facts. There, an Ohio citizen filed a diversity action in Massachusetts federal court over injuries caused by a deceased Massachusetts citizen. Hanna, 380 U.S. at 461, 85 S.Ct. 1136. The named defendant, executor of the tortfeasor's estate and also a Massachusetts citizen, moved for summary judgment on the basis of improper service. The defendant cited a Massachusetts state law requiring in-hand service to the executor of an estate. In response, the plaintiff argued that the state law was inapplicable and that service was made in compliance with Federal Rule of Civil Procedure 4(d)(1), which permitted service by leaving copies of the complaint and summons at the executor's home with a person of suitable age and discretion residing there. Id. at 461-62, 85 S.Ct. 1136. Thus, the question before the Court was whether to apply the Federal Rule or the Massachusetts state law. In disposing of the question presented, the Court focused its analysis on whether the Federal Rule in question was broad enough to cover the situation at hand: whether service of process was properly made. Construing Rule 4 and its service requirements, the Court found that Rule 4 was "designed to control service of process in diversity actions." Id. at 463, 85 S.Ct. 1136. Thus, the Court found a conflict between the Massachusetts service rules and Rule 4(d)(1). Examining the limits of Rule 4 to determine its coverage in that situation, the Court stated that "the clash [with the state law requiring in-hand service] is unavoidable; Rule 4(d)(1) says  implicitly, but with unmistakable clarity  that in-hand service is not required in federal courts." Id. at 470, 85 S.Ct. 1136.
Hanna demands the enforcement of the Federal Rules unless they are not broad enough to cover a situation. In such a relevant state law may be called upon to supply the rule of decision. Thus, put simply, the rule from Hanna is that when a Federal Rule covers a situation (there, service), but is silent on an action required by state law (there, in-hand service), the Federal Rule must control.

III.
Defendants support the instant Motion (DE 190) by citing to several Southern District of Florida cases that found that the so-called discovery aspect of § 768.72(1) did not conflict with Rule 26. In the words of Hanna, those courts held Rule 26 does not cover the situation of financial worth discovery. See, e.g., State of Wis. Inv. Bd. v. Plantation Square Associates, Ltd., 761 F.Supp. 1569 (S.D.Fla. 1991); Al-Site Corp. v. VSI Int'l, Inc., 842 F.Supp. 507 (S.D.Fla.1993); Sanders v. Mayor's Jewelers, Inc., 942 F.Supp. 571 (S.D.Fla.1996). Plantation Square was the first case in the Southern District of Florida to set forth a reasoned analysis of § 768.72 under Hanna and Erie. Its analysis differentiates between the pleading and discovery aspects of § 768.72, and later cases explicitly adopt its reasoning. E.g., Al-Site, 842 F.Supp. at 510 ("The Court agrees with Plantation Square's conclusion and defers to that reasoning."); Sanders, 942 F.Supp. at 576 n. 5 ("The Court adopts the reasoning of the Al-Site and Plantation Square courts with respect to the applicability of the discovery aspect of Section 768.72 in federal litigation."). Those courts found that because there is no direct conflict, Rule 26 does not cover the situation and § 768.72(1) is to be applied.
It is rare that a Federal Rule would not cover the situation of a discovery matter. "State law is of very little relevance to discovery in a federal action." 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2005 (1994). There are, of course, certain discrete instances when federal procedure specifically adopts state procedure: discovery in aid of execution may be governed by state law, and state law determines whether a privilege is applicable. Fed.R.Civ.P. 69(a); Fed. R.Evid. 501. However, "except for those two matters it is wholly settled that discovery in a federal court is governed only by [the Federal Rules of Civil Procedure] and that state discovery practices are irrelevant." 8 Wright & Miller, supra (emphasis added) (citations omitted). Nevertheless, while the Federal Rules are described as being nearly absolute in their breadth of coverage, the question centers on whether there exists a conflict between the state law and Federal Rule.
Plantation Square sought to reconcile the apparent incongruity between Rule 26 and § 768.72. Despite the illustrative authority on this issue, the Court finds the reasoning supplied by Plantation Square and its progeny unpersuasive. Properly understood, § 768.72(1) would create an unmistakable hurdle for the Parties in discovery and directly conflicts with the unobstructed discovery practice codified in Federal Rule of Civil Procedure 26. By widening Plantation Square's analysis to its proper scope, it is clear that there is a conflict between § 768.72 and Rule 26, and that Rule 26 fully contemplates parties seeking financial worth disclosure. Thus, because there is a conflict and Rule 26 covers the situation, the Court cannot apply § 768.72(1) and the showing mandated therein. Rather, the Court, as it should, applies Rule 26 to these proceedings and discovery issues that arise herein.

A.
The crux of the issue raised by the instant Motion is this: Whether the Court must apply Florida Statutes § 768.72 and require a showing of reasonable grounds for entitlement to recovery before allowing Plaintiff to discover Defendants' financial worth information. The cardinal principal guiding the Court's analysis of any statute is to look at its plain language. CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir.2001). The statute provides as follows:
In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure.... No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.
Fla. St. § 768.72(1) (2007). Courts have interpreted the text to contain two distinct parts: a pleading aspect and a discovery aspect. See, e.g., Plantation Square, 761 F.Supp. at 1572-81. Plantation Square reasoned that "the last sentence ... is of an entirely different nature than the rest of the statute and, for Erie purposes, must be analyzed separately as a rule of discovery." Id. at 1572-73. Other courts have adopted that reading. E.g., Al-Site, 842 F.Supp. at 509 (agreeing with Plantation Square that "there are two elements to § 768.72: a pleading element and a discovery element"); Sanders, 942 F.Supp. at 576 n. 5 (adopting the reasoning of Al-Site as to the "discovery aspect of Section 768.72").
The Court is skeptical that the plain meaning of the statute may be read to contain two separate aspects requiring a showing by a party seeking punitive damages. The first sentence of the statute requires a satisfactory showing to be made to the court before punitive damages may be pled in the complaint. The last sentence then clearly states that discovery of financial worth information may be had once a claim for punitive damages has been properly pled. Fla. St. § 768.72(1) ("No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted."). The statute does not mandate that such discovery may commence only upon a second showing to the court. Rather, there is a single condition precedent before a plaintiff may plead punitive damages. Once leave of court is given upon a showing of a reasonable basis for entitlement, the complaint may be amended and plaintiff may proceed with discovery. Thus, there is no second hurdle after the pleading of punitive damages is allowed as Plantation Square holds. An initial showing is required to plead punitive damages; once leave has been given to amend the pleading, a litigant is free to go forward with his discovery requests. The Court's reading is supported by the fact that only one standard is used in the text: a "reasonable basis for recovery." Id. If a second showing were required after pleading but before discovery may commence, it would simply be redundant with the first. The statute cannot be read to require a showing before pleading and then an additional showing before discovery is allowed. Upon obtaining leave to plead punitive damages, the question of whether discovery may commence has been answered.
The Eleventh Circuit held that, to the extent § 768.72(1) serves as a pleading statute, it is inapplicable in federal court. Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir.2000) (citing Cohen v. Office Depot, Inc., 184 F.3d 1292, 1295-99 (11th Cir.1999)). The Cohen court specifically held that § 768.72(1)'s requirement of a proffer to the district court before pleading punitive damages conflicted with Federal Rule of Civil Procedure 8(a)(3)'s requirement of a demand for relief to be contained in the pleading. Id. Thus, in line with Erie and Hanna, Rule 8(a)(3) is applicable in diversity actions and litigants are to include claims for relief, including punitive damages, in their initial pleadings. They need not seek leave of court or make a showing before doing so.
In ruling that § 768.72 is not applicable to pleading in federal court, Cohen ruled that the statute's operative effect is inapplicable. In fairness to Defendants' argument, the Court notes that the Cohen court did not address whether there was a second showing, or a substantive discovery aspect, in § 768.72. In fact, the Eleventh Circuit had the opportunity but has not addressed the issue before the Court today of whether § 768.72(1) requires a proffer before discovery is allowed in federal court. See Porter v. Ogden, Newell & Welch, 241 F.3d 1334, 1340 (11th Cir.2001) (refraining from deciding the issue because the discovering party had made the showing that would have been required). However, the Court finds little reason, and no justification, to read into the statute an additional requirement of a showing before financial worth discovery may commence. The Court will not read Porter's silence on the question as a restriction on the holding of Cohen. Rather, the Court notes that Cohen may have long ago started this Circuit toward the conclusion reached by the Court today. "To some degree, the functioning of all the procedures in the federal rules for broad joinder of parties and claims, discovery, liberal amendment, judicial management, and summary judgment are intertwined inextricably with the pleading philosophy embodied in Rule 8." 5 Wright & Miller, Federal Practice and Procedure: Civil 3d § 1202 (2004) (footnote omitted); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ("This simplified notice pleading standard [embodied in Rule 8] relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.") (citation omitted).
The continuing validity of the reasoning given in Plantation Square in light of Cohen is premised on there being two distinct parts to § 768.72. The Court's prior Order (DE 186) denying a protective order to Defendants was based on the statute's text and the holding in Cohen, neither of which support a second showing for discovery. Absent the need for a second showing, the Court applied Rule 26, which allows a party, without any additional procedure, to discover information "regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed. R.Civ.P. 26(b)(1).[2] While the Court is confident in its reasoning on this subject, for the benefit of the Parties and any reviewing court the Court will assume, arguendo, the dual aspect reading of the statute given by Plantation Square and its progeny and address whether under Hanna Rule 26 covers the situation.

B.
The well reasoned decision rendered in Plantation Square is exhaustive in its analysis of § 768.72(1) under the Erie doctrine. However, assuming that § 768.72(1) would require a showing before discovery may commence in federal court, the Court's point of particular disagreement with Plantation Square is at the first step under Hanna. The Plantation Square decision framed the question in terms of whether there was any unavoidable conflict between § 768.72(1) and Rule 26. 761 F.Supp. at 1577. It noted that Rule 26 would allow financial worth discovery upon mere relevance, but that the standard of mere relevance was not an inflexible mandate. Id. at 1577-78 ("In apparent contravention of § 768.72, Rule 26 presumes access to discovery contemporaneous with a determination of relevancy. There is nothing in the Rules, however, to suggest this to be an inflexible mandate.") (footnotes omitted). Thus, it reasoned that Rule 26 did not exclude a showing to the court's satisfaction before allowing discovery, and so it could be read in harmony with § 768.72. Plantation Square buttressed its reasoning by looking to the disinterestedness of the Federal Rules and the substantial Florida state polices protected by § 768.72. Id. at 1578 ("Squared off against this potential flexibility of Rule 26 and the federal policies underlying it stand substantial state policies, of which the delay in discovery of financial worth proves an `integral' part.") (footnote omitted). Thus, Plantation Square held that in a diversity action, parties seeking punitive damages must seek leave of court before commencing discovery of net worth. The Court finds that Plantation Square did not find a conflict between § 768.72 and the Federal Rules because it framed the issue too narrowly.
Plantation Square's narrow framing of Rule 26 begged the question of whether, and effectively precluded a finding that, it conflicted with § 768.72(1). Under Hanna, the "first question must ... be whether the scope of the Federal Rule in fact is sufficiently broad to control the issue before the Court." Walker, 446 U.S. at 749-50, 100 S.Ct. 1978. Plantation Square, however, questioned whether there was any unavoidable conflict. 761 F.Supp. at 1577. The Hanna analysis does not begin with such a bias. "[T]he Federal Rules of Civil Procedure are [not] to be narrowly construed in order to avoid a `direct collision' with state law. The Federal Rules should be given their plain meaning." Walker, 446 U.S. at 750 n. 9, 100 S.Ct. 1978. Put simply, Plantation Square misframed the issue by looking to whether a conflict could be avoided. Rather, the proper inquiry is to construe the Federal Rules to their proper extent and determine whether they cover the situation at hand. Hanna, 380 U.S. at 471, 85 S.Ct. 1136.
Hanna explained that the Erie rule requiring the enforcement of state law in federal court is to be invoked only in light of the conclusion that the federal rule in question is not broad enough to cover the matter at issue. Hanna, 380 U.S. at 470, 85 S.Ct. 1136. In other words, "[t]he Erie rule has never been invoked to void a Federal Rule." Id. The plain meaning of Rule 26 is that a party may have discovery of any matter relevant to his claim or defense, and that discovery requests should not be dishonored if they are reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). Plantation Square's framing of the issue has two flaws: it minimized the breadth of Rule 26, and failed to consider that "Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts even though some of those rules will inevitably differ from comparable state rules." Hanna, 380 U.S. at 473, 85 S.Ct. 1136 (emphasis added). Thus, Plantation Square's invocation of Erie partly voided Federal Rule 26 by looking to § 768.72 to supply the rule of decision in a discovery matter concerning financial worth. That court's adroit effort to merge § 768.72 with Rule 26 took up the wrong task. The Court must determine the question of whether the Federal Rules cover this situation, not whether state law may be grafted into a Federal Rule.

IV.
As noted above, the proper inquiry under Hanna is whether the Federal Rules are broad enough to cover this situation, or whether the Court must require the showing mandated by § 768.72 before allowing discovery. It is the nature of the federal discovery rules to reveal all relevant information and quicken the process for obtaining it. United States v. Procter & Gamble, Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) ("[The discovery rules] together with pretrial procedures make a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.") (citation omitted). The Federal Rules were adopted to end the practice of treating litigation as "a battle of wits rather than a search for the truth," and to put an end to the "sporting theory of justice." See 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2001 (1994). In fact, Plantation Square correctly recognized that the "presumption [behind Rule 26] of contemporaneous access [to relevant information upon pleading] seems to be driven, rather, by general notions of efficiency in the litigation process." Plantation Square, 761 F.Supp. at 1578.
Section 768.72(1) has the opposite effect. It operates as a moat that discovering parties must find their way across before they are allowed access to the keep. As Plantation Square noted, the statute is a codification of Florida's desire to protect its citizens from harassment. Id. at 1578-79. This procedural impediment prevents all but the non-frivolous claimants from engaging in financial worth discovery. Such an obstruction is a completely defensible, and perhaps wise, decision of the Florida legislature. New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without the risk to the rest of the country.") While Florida is free to formulate its own rules for discovery, to the extent they conflict with the uniform rules of federal procedure they must be disregarded. If applied in federal court, § 768.72(1) would place a governor on Rule 26 where Congress has not seen fit to place one.

A.
In seeking to determine whether the federal rules cover the situation, the Court must consider the proper scope of the federal discovery rules. As housekeeping rules, the Federal Rules of Civil Procedure provide the manner in which federal litigation is to be conducted. Chief among the characteristics of federal litigation is the principle, with few exceptions, that a case is to be tried as a single unit and not broken into piecemeal trials. See 28 U.S.C. § 1291 (2006); Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 693-95, 53 S.Ct. 736, 77 L.Ed. 1449 (1933) (noting that interlocutory judgments are unknown in jury trials and the "answer being general, the case according to common-law practice must be tried as a unit and not broken into parts"); see Hirshhorn v. Mine Safety Appliances, 8 F.R.D. 11, 23 (W.D.Pa.1948) (noting that trying all issues at once avoids waste and expense and that "plaintiff will not request a date for trial until his case is properly prepared, and the defendants always have a right to be heard, if the date requested by the plaintiff is not convenient"). To effectuate this deliberate choice on the part of Congress in favor of once-and-for-all litigation as to all issues, the Federal Rules allow for broad discovery. Fed. R.Civ.P. 26(b)(1). Such wide access by all parties to matters touching all issues to be tried allows each side to prepare its case throughly and try it efficiently. In stark contrast to such liberal discovery, § 768.72 would stem the procedure until a ruling may be given by the Court. The statute would narrow the scope of permissible discovery until Plaintiff could compile enough information to point to evidence in the record or make a proffer of a reasonable entitlement to recovery. This cannot be reconciled with the liberality of Rule 26.
A second and equally important quality of the federal discovery rules is that they contemplate limited court involvement. See, e.g., Fed.R.Civ.P. 26(f) (requiring parties to confer as soon as practicable to consider the nature and basis of claims and defenses and the possibilities for promptly settling); Fed.R.Civ.P. 37(a)(5)(A) (requiring the court to impose a sanction against a party or attorney who necessitates the court's involvement in a discovery dispute without substantial justification). To the contrary, § 768.72 would prevent financial worth discovery absent a proffer to the court establishing the reasonableness of recovery. In contrast to the laissez faire approach in federal court, under § 768.72 court intervention is necessary before financial worth discovery is to begin at all. The Plantation Square reasoning applying § 768.72 in federal court vitiates the litigant-driven procedure of the federal discovery rules in light of the state statute's policy-driven requirement of a showing and leave of court.
The structure of liberal discovery conducted by the parties, and only chaperoned by the court, is the explicit policy of litigation in the federal courts and is clearly mandated by the Federal Rules. The Court "cannot allow state court rulings to influence what [it] consider[s] to be the proper interpretation of the federal rules concerning discovery." Sharon Steel Corp. v. Travelers Indemnity Co., 26 F.R.D. 113, 116 (N.D.Ohio 1960) (noting also that it "may be that Ohio does not afford the liberality in discovery that we deem appropriate under federal practice, but our jurisdiction cannot be impinged upon for the sake of conforming with state court decisions"). When a right is enforceable in federal as well as state court, such as Plaintiffs fraud claim at issue here, "the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic." Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). When there is a variance between the federal and state systems governing the mode of enforcement of rights, federal courts normally and properly respond by enforcing the federal, not state, procedures.[3] As Hanna noted, "[t]o hold that a Federal Rule of Civil Procedure must cease to function whenever it alters the mode of enforcing state-created rights would be to disembowel either the Constitution's grant of power over federal procedure or Congress' attempt to exercise that power under the Rules Enabling Act." Hanna, 380 U.S. at 473-74, 85 S.Ct. 1136 (emphasis added).

B.
Certain policies that animate Florida state court litigation differ from those underlying federal litigation. The statute in question clearly is meant to enshrine a right "not to be subjected to a punitive damages claim and ensuing financial worth discovery" without leave of court. Simeon, Inc. v. Cox, 671 So.2d 158, 160 (Fla.1996) (citing Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla.1995)). This right is so important to the people of the State of Florida that it is incorporated into Florida civil practice by § 768.72.[4] Indeed, Plantation Square relied heavily on the importance of § 768.72. Plantation Square, 761 F.Supp. at 1579-79 (noting the "substantial State policies, of which the delay in discovery of financial worth proves an `integral' part" and "the lack of a strong federal interest in demanding immediate access to financial worth discovery"). When analyzing the question at hand, the Court cannot be motivated by either the policies underlying the differing rules or the importance of one versus the relative unimportance of the other. Sibbach v. Wilson & Co. Inc., 312 U.S. 1, 13, 61 S.Ct. 422, 85 L.Ed. 479 (1941) ("If we were to adopt the suggested criterion of the importance of the alleged right we should invite endless litigation and confusion worse confounded."); see Hanna, 380 U.S. at 469 n. 9, 85 S.Ct. 1136 (cautioning against an improper emphasis on the importance of a state law). The Court must limit its focus to the procedures of the federal and state systems, determine whether they conflict, and if so, faithfully apply the Federal Rules.
Contrasted with Florida civil procedure, as evidenced by § 768.72(1), the procedure for discovery in federal court, as evidenced by Rule 26(b)(1), is aimed at the broad and liberal discovery of all relevant facts to bring everything to light before the trier of fact. In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir.2003) ("The deposition-discovery regime set out by the Federal Rules of Civil Procedure is an extremely permissive one to which courts have long accorded a broad and liberal treatment to effectuate their purpose that civil trials in the federal courts need not be carried on in the dark.") (internal quotation marks and citations omitted); see also Fed.R.Civ.P. 1 ("[These Rules] shall be construed and administered to secure the just, speedy, and inexpensive determination of every action."). By their overall structure, the Federal Rules promote efficiency in decision, frequency in settlement, and lack of surprise at trial. Thus, rather than taking the narrow view, that of Plantation Square, of a possible conflict between Florida's requirement of an evidentiary showing before financial worth discovery may ensue and the absence of one in federal rules, the Court compares the overall blueprint of liberal discovery evidenced by Rule 26 with the fragmentary procedure for discovery with court intervention mandated by § 768.72.[5] Framed correctly, the conflict is obvious.
The Plantation Square court held that delaying disclosure of a defendant's financial worth information until a later stage in pretrial litigation did "nothing to interfere with the purposes of such discovery under the Federal Rules." Plantation Square, 761 F.Supp. at 1578 (emphasis added). In so avoiding the interference with the purposes of discovery in order to enforce state rights, the court there held that a plaintiff, upon the showing required by the statute, will still "have in hand evidence of the defendant's financial condition at the time it becomes necessary for the factfinder to determine punitive liability." Id. However, it is the state procedure of delay in the production of financial worth information, regardless of whether it interferes with the "purposes" of federal discovery, that conflicts precisely with the non-delayed discovery "procedure" of the Federal Rules. That is, open and liberal discovery ah initio must be seen as conflicting with a proffer by Plaintiff, consideration and decision of the Court, and only then disclosure of information by Defendants.
The Federal Rules are not wanting for procedures to protect parties from vexatious discovery requests. The Rules prevent the discovery of certain information upon a showing of harm to the disclosing party. See, e.g., Fed.R.Civ.P. 26(c)(1) (allowing a party to whom a discovery request is directed to obtain a protective order upon a showing that good cause exists to issue the order to prevent "annoyance, embarrassment, oppression, or undue burden or expense"). Under the Federal Rules, the showing required to prevent discovery is the inverse of the showing required by § 768.72 to engage in discovery. The absence of a default hurdle written into Rule 26(b) for protection of financial worth information is part and parcel of the federal procedure of liberal discovery.
Therefore, the Court finds a conflict between the showing requirement in § 768.72(1) and the Federal Rules' absence of such a requirement. Thus, Rule 26 covers this situation. Because this "situation is covered by one of the Federal Rules... the [C]ourt has been instructed to apply the Federal Rule." Hanna, 380 U.S. at 471, 85 S.Ct. 1136 (citations omitted). Accordingly, Rule 26(b)(1) will be applied unless it violates the Rules Enabling Act or the Constitution. Id.

V.
The Rules Enabling Act gives the Supreme Court the power "to prescribe general rules of practice and procedure" in the federal courts. 28 U.S.C. § 2072(a) (2006). However, "[s]uch rules shall not abridge, enlarge or modify any substantive right." Id. § 2072(b). Therefore, the Court cannot apply Rule 26, and thus allow Plaintiff to obtain the discovery she seeks without any prior showing of a reasonable basis for recovery, if such a ruling would abridge or modify a substantive right of Defendants. Rule 26, however, like all the Federal Rules, enjoys a presumption of validity under the Rules Enabling Act. Burlington Northern R.R. Co. v. Woods, 480 U.S. 1, 6, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987) ("Moreover, the study and approval given each proposed Rule by the Advisory Committee, the Judicial Conference, and this Court, and the statutory requirement that the Rule be reported to Congress for a period of review before taking effect ... give the Rules presumptive validity under both the constitutional and statutory constraints.").
Defendants have done nothing to rebut the presumption of validity Rule 26 enjoys under the Enabling Act. Defendants' arguments that § 768.72(1) embodies a substantive right do not apply the proper test. Defendants rely on Florida's characterization that the showing requirement found in § 768.72 grants a substantive right. The characterization of the statute as a substantive right by Florida state courts, along with the importance they place on that right, cannot control the Court's determination of whether Rule 26 abridges or modifies any substantive right. Sibbach v. Wilson & Co. Inc., 312 U.S. at 13-14, 61 S.Ct. 422 (rejecting "important" as the definition of "substantive"). Rather, the test for whether a rule is "procedural," as that term is used in the Rules Enabling Act, is simply "whether a rule really regulates procedure,  the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them." Id. at 14, 61 S.Ct. 422.
Rule 26 allows discovery of all non-privileged information relevant to a claim or defense. Fed.R.Civ.P. 26(b)(1). As discussed above, in order to properly prepare and prove his case to the trier of fact, a party must be able to obtain discovery, including as to the issue of punitive damages. Sinclair Refining Co., 289 U.S. at 694-96, 53 S.Ct. 736. Rule 26 would therefore allow discovery of financial worth information upon a showing of relevance. That Rule and its lack of a showing requirement before financial worth discovery may be had clearly acts as a tool to help Plaintiff make out her case for punitive damages. Thus, the Rule is part of the "process for enforcing rights and duties." Sibbach, 312 U.S. at 14, 61 S.Ct. 422. Therefore, Rule 26 does not violate the Rules Enabling Act.[6]
The Court's departure from a tradition of applying § 768.72 to discovery practice in the Southern District of Florida is not taken lightly. However, the Court finds that the mere recognition that Florida defendants always enjoy the protection of an additional procedure before net worth discovery may be had in state courts cannot be translated to a rule that changes the landscape of federal litigation.
Undoubtedly most alterations of the rules of practice and procedure may and often do affect the rights of litigants. Congress' prohibition of any alteration of substantive rights of litigants was obviously not addressed to such incidental effects as necessarily attend the adoption of the prescribed new rules of procedure upon the rights of litigants who, agreeably to rules of practice and procedure, have been brought before a court authorized to determine their rights.
Mississippi Publ'g Corp. v. Murphree, 326 U.S. 438, 445, 66 S.Ct. 242, 90 L.Ed. 185 (1946) (citing Sibbach, 312 U.S. at 11-14, 61 S.Ct. 422). Moreover, uniformity in federal practice is the aim and felicitous result of a unified judicial system. Lumbermen's Mut. Cas. Co. v. Wright 322 F.2d 759, 764 (5th Cir.1963) ("One of the shaping purposes of the Federal Rules is to bring about uniformity in the federal courts by getting away from local rules."); Hanna, 380 U.S. at 463, 85 S.Ct. 1136 ("Because of the threat to the goal of uniformity of federal procedure posed by the decision below, we granted certiorari.") (footnote omitted). Thus, Rule 26, and not specific state practices, must be applied to discovery in the federal courts.
In as much as Rule 26 is part of the judicial process of enforcing rights and duties of the Parties, it does nothing to abridge or modify Defendants' rights, nor enlarge Plaintiffs. Sibbach, 312 U.S. at 14, 61 S.Ct. 422. Therefore, the Court finds that the Rule comports with the congressional grant of authority in the Rules Enabling Act and is thus valid thereunder.
The issue of whether Rule 26 violates the Constitution can be summarily dismissed. In addition to the presumption of constitutional validity enjoyed by the Federal Rules noted above, Woods, 480 U.S. at 6, 107 S.Ct. 967, because the Court has found the issue of discovery without leave of court to be procedural, the Court similarly finds that Rule 26 does not violate the Constitution. Hanna, 380 U.S. at 472, 85 S.Ct. 1136 ("[T]he constitutional provision for a federal court system ... carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either."); Woods, 480 U.S. at 5, 107 S.Ct. 967 (citing Hanna, 380 U.S. at 472, 85 S.Ct. 1136).

VI.
In the alternative, and for the benefit of the Parties and any reviewing court, the Court will assume that Rule 26 is not broad enough to cover the situation of Plaintiffs discovery requests. Therefore, under Hanna, the question becomes whether application of Rule 26 would violate the twin aims of Erie: preventing both the inequitable administration of the laws and forum shopping. Hanna, 380 U.S. at 471, 85 S.Ct. 1136.
Plantation Square held that failing to apply § 768.72 would not result in an inequitable administration of the laws. 761 F.Supp. at 1579. However, finding that § 768.72 did not conflict with Rule 26, Plantation Square determined that the state statute must be applied because refusing to do so would result in forum shopping by altering the character of the litigation. Id. The Court will address each in turn.
The Court agrees with Plantation Square's assessment of the first issue. "Failure to adopt the State discovery practice would not lead to an inequitable administration of the laws. It is difficult  if not impossible  to imagine how pre-trial production of evidence of financial worth sooner, rather than later, would change the result of any given litigation." Plantation Square, 761 F.Supp. at 1579.
Plantation Square went on to find that failing to enforce § 768.72 in diversity actions would encourage forum shopping. The Court disagrees. "The Erie rule is rooted in part in a realization that it would be unfair for the character or result of a litigation materially to differ because the suit had been brought in a federal court." Hanna, 380 U.S. at 467, 85 S.Ct. 1136. Thus, the Erie doctrine is aimed at avoiding discrimination against in-state defendants and ensuring equal protection in the exercise of jurisdiction. "Not only are nonsubstantial, or trivial, variations not likely to raise the sort of equal protection problems which troubled the Court in Erie; they are also unlikely to influence the choice of a forum." Id. at 468, 85 S.Ct. 1136. As in Hanna, where the mode of service was at issue, the procedure for discovery in the instant action has little impact on the character of the litigation. "[I]t is difficult to argue that permitting [Plaintiff to have net worth discovery without leave of court] alters the mode of enforcement of state-created rights in a fashion sufficiently `substantial' to raise the sort of equal protection problems to which the Erie opinion alluded." Id. at 469, 85 S.Ct. 1136.
Plaintiff has stated a claim for fraud in the inducement and seeks punitive damages as part of her claim. She seeks to discover Defendants' financial worth information in support of her claim.
To hold that the plaintiff in an action at law may have discovery of damages is not to say that the remedy will be granted as of course, or that protection will not be given to his adversary against impertinent intrusion.... The court may decline to open the defendant's records to the scrutiny of a competitor posing as a suitor, if the suit has been begun without probable cause or as an instrument of malice. It is all a matter of discretion.
Sinclair Refining, 289 U.S. at 696-97, 53 S.Ct. 736. There is no indication in the record that Plaintiff is here seeking to abuse the federal courts for an improper purpose. While Defendants' instant Motion (DE 190) vigorously attacks the merit of Plaintiffs punitive damages claim, it does not posit that Plaintiff seeks to obtain the discovery at issue for an improper purpose such as would violate Erie's goal of equal protection. Without passing on the merit of Defendants' arguments, the Court finds no danger in allowing the instant discovery to take place. The protections already afforded in the federal discovery rules are in place to defend against "annoyance, embarrassment, oppression, or undue burden or expense." Fed. R.Civ.P. 26(c)(1). Thus, if the discovery of this information would lead to any one of these, Defendants would be entitled to a protective order under Rule 26.
Moreover, the requirement of establishing a reasonable basis for recovery found in § 768.72(1) is no more a defense to a frivolous claim than a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6). Compare Fla. St. § 768.72(1) ("[N]o claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages."), with Bell Atlantic Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1965-66, 167 L.Ed.2d 929 (2007) (holding that requiring a complaint to properly state a claim for relief requires enough facts to demonstrate plausible grounds for recovery). Thus, Defendants' reliance on § 768.72(1) for a safe harbor would displace and add to the Federal Rules.[7] This is not the aim of Erie. Hanna, 380 U.S. at 470, 85 S.Ct. 1136 ("The Erie rule has never been invoked to void a Federal Rule.").
Thus, the Court finds that a plaintiff would not seek the federal forum simply to avoid application of § 768.72(1). Therefore, even if Rule 26 were not broad enough to cover this situation, and thus did not conflict with § 768.72(1), the Court finds that application of Rule 26(b)(1) to the instant discovery requests would not result in an inequitable administration of the laws or encourage forum shopping. Rule 26 will be applied.

VII.
In conclusion, the Court finds that Florida Statutes § 768.72(1) is a pleading statute that has no effect on discovery practice in federal court. If application in federal court would require a showing before net worth discovery is allowed, the Court finds that there is a conflict between Federal Rule of Civil Procedure 26(b)(1) and the so-called discovery aspect of § 768.72(1). Thus, the Court finds that Rule 26 covers the situation of whether net worth discovery may be sought without prior leave of court. For the reasons already expressed, the Court also finds that Rule 26(b)(1) violates neither the Rules Enabling Act nor the Constitution. In the alternative, the Court finds that application of Rule 26 and not § 768.72(1) will lead neither to an inequitable administration of the laws nor to forum shopping as contemplated by Erie.
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED that Defendants' Motion To Reconsider Or Stay The Effect Of The Court's Order Allowing Financial Worth Discovery (DE 190) be and the same is hereby DENIED.
NOTES
[1]  For a short history of the long and winding road from Erie to Walker, see Boggs v. Blue Diamond Coal Co., 497 F.Supp. 1105, 1108-17 (E.D.Ky.1980).
[2]  As part of the relief she seeks, Plaintiff's prayer for punitive damages is part of her claim. Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 694-96, 53 S.Ct. 736, 77 L.Ed. 1449 (1933); Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 641 (Fla.Dist.Ct.App.2005) ("Because the amount of an award may be pittance to a rich man and ruination to a poor one, the goal of punishment must of necessity take into account the financial worth of the wrongdoer."). Thus, Rule 26 would allow discovery of information necessary to establish an entitlement to punitive damages. Mid Continent Cabinetry, Inc. v. George Koch Sons, Inc., 130 F.R.D. 149, 151-52 (D.Kan.1990).
[3]  The Court has read and considered decisions of courts in this District and elsewhere applying similar state laws in federal diversity actions. While disagreement is to be expected, there is certainly nothing novel in the result the Court reaches today. See, e.g., Everitt v. Brezzel, 750 F.Supp. 1063, 1065-66 (D.Colo.1990) (refusing to apply in federal court a Colorado Supreme Court decision requiring a showing of good cause before discovery of certain relevant non-privileged information may be had); Am. Benefit Life Ins. Co. v. Ille, 87 F.R.D. 540, 541-42 (W.D.Okla. 1978) (refusing to apply in federal court an Oklahoma state law requiring a prima facie showing of entitlement to punitive damages before net worth discovery may be had); Dixon v. 80 Pine Street Corp., 516 F.2d 1278, 1280-81 (2d Cir.1975) (refusing to apply in federal court a New York civil procedure rule requiring a showing to be made before certain discovery may be had); Vollert v. Summa Corp., 389 F.Supp. 1348, 1351 (D.Haw.1975) (refusing to delay discovery of financial information until after plaintiff proved his case as to liability so that plaintiff may have all information needed to prepare his entire case); Keller v. Orion Ins. Co., Ltd., 285 F.Supp. 906, 907-08 (D.Minn.1968) (refusing to apply in federal court a Minnesota civil procedure rule requiring a showing of good cause before a certain class of person may be deposed).
[4]  As an aside, the Court notes that Defendants are citizens of Brazil and contracted to build a yacht in Brazil for Plaintiff, a citizen of Georgia. As foreign citizens, Defendants do not often look to the Florida legislature to protect their rights, nor does Florida have a very high interest in protecting their financial worth information from discovery. Cf. Tananta v. Cruise Ships Catering and Services Int'l, N.V., 909 So.2d 874, 887-88 (Fla.Dist. Ct.App.2004) (noting that Florida has very little interest in making whole foreign nationals injured in the Mediterranean Sea while aboard non-U.S. vessels and treated by foreign doctors).
[5]  The Court notes that even the more narrow comparison between a showing required by the Florida statute and silence in Rule 26 mirrors the comparison in Hanna. In that case a state law required in-hand service but Rule 4 did not. Regarding the situation, the Supreme Court held that the clash was "unavoidable" and that the difference in procedure was stated with "unmistakable clarity." Hanna, 380 U.S. at 470, 85 S.Ct. 1136.
[6]  Recognizing that the Sibbach test is circular in its terms, the Honorable William O. Bertelsman, sitting in the Eastern District of Kentucky, reasserted the test in this way: "[A] substantive rule [is] one which, if all the facts were stipulated, would be meaningful in analyzing the rights and liabilities of parties to a dispute if they were to settle on it on the day of filing suit...." Boggs v. Blue Diamond Coal Co., 497 F.Supp. 1105, 1121 (E.D.Ky.1980). The question of whether or not Plaintiff would have to make a showing before discovering evidence relevant to her punitive damages claim is clearly not helpful in analyzing the rights and liabilities of the Parties, including the merit of the punitive damages claim itself. Thus, Rule 26 is procedural and does not violate the Rules Enabling Act.
[7]  By prior Order (DE 108), the Court allowed Plaintiff to amend her complaint to state with particularly the allegations giving rise to her fraud claim. Thus, Defendants have also had the protection of Federal Rule of Civil Procedure 9(b), which requires the circumstances constituting fraud to be alleged with particularity.


                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1

                United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                Submitted October 23, 2018 *
                                Decided November 1, 2018

                                          Before

                            MICHAEL S. KANNE, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge

                            AMY C. BARRETT, Circuit Judge

No. 18-1537

JASON M. PARKER,                                   Appeal from the United States District
     Plaintiff-Appellant,                          Court for the Eastern District
                                                   of Wisconsin.
      v.
                                                   No. 17-C-0955
SAMANTHA TIETZ,
    Defendant-Appellee.                            Lynn Adelman,
                                                   Judge.

                                        ORDER

       Jason Parker, formerly a Wisconsin prisoner, alleges that a correctional officer
refused to submit his written grievances and requests to see a supervisor about
previously unanswered grievances. Parker seeks damages against the officer for
“deliberate indifference, negligence, [and] violation [of] 1st Amendment.” The district
court dismissed Parker’s complaint for failure to state a claim, concluding that Parker

      * The defendant was not served with process in the district court and is not
participating in this appeal. We have agreed to decide this case without oral argument
because the appellate brief and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 18-1537                                                                            Page 2

had no constitutional right to an effective grievance process, and he did not allege that
the officer hindered his right of access to the courts. We affirm the judgment.

       We accept as true the allegations in Parker’s complaint. See Arnett v. Webster,
658 F.3d 742, 751–52 (7th Cir. 2011). Parker’s allegations revolve around his interactions
with Samantha Tietz, a correctional officer at Kenosha County Jail, in May 2017. After
submitting written request slips and grievances without ever receiving responses,
Parker became frustrated. So he wrote two additional grievances and requested
permission to speak with “supervision” to address the lack of response. Tietz told
Parker that he could never “speak to the supervisor, not now, not ever.” She continued:
“Nobody gives a f*** about your request or your grievances, I’m just telling you now.
Do you understand me?” Parker never received a response to these latter grievances so
he filed this complaint.

        Parker sued Tietz under 42 U.S.C. § 1983, and at screening, the district court
dismissed the complaint for failure to state a claim, see 28 U.S.C. § 1915A, and assessed a
strike, see id. § 1915(g). The judge concluded that Parker failed to set forth a plausible
claim that Tietz hindered his First Amendment right of access to the courts. We review
the dismissal de novo. See McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010).

       Parker’s brief on appeal barely passes muster: he incorporates other documents
by reference, see Albrechtsen v. Bd. of Regents of Univ. of Wisconsin Sys., 309 F.3d 433, 436
(7th Cir. 2002), and barely develops any argument with citations to legal authority,
see Fed R. App. P. 28(a)(8); Anderson v. Hardman, 241 F.3d, 545 (7th Cir. 2001). We will,
however, construe the pro se brief liberally and address the discernable argument.
See Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017).

       Parker contends generally that the district court erroneously dismissed his
complaint without taking evidence. The soundness of a complaint, however, is judged
by whether its allegations, accepted as true, plead a plausible claim. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Evidence comes later and is not part of the
assessment at the pleading stage. Chapman v. Yellow Cab Coop., 875 F.3d 846, 848 (7th Cir.
2017).

       Here, however, there is no “recognized legal theory” under which Parker could
recover damages from Tietz. See Richards v. Mitcheff, 696 F.3d 635, 638 (7th Cir. 2012).
The only constitutional claim potentially implicated by Parker’s complaint was a claim
that Tietz’s conduct violated Parker’s First Amendment right of access to the courts.
No. 18-1537                                                                               Page 3

See DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). That right “includes the right to
pursue the administrative remedies that must be exhausted before a prisoner can seek
relief in court.” Id. But Parker needed to allege that Tietz’s impediment of his ability to
file grievances (which we assume to be true) prevented him from bringing or litigating
a claim in court for an independent wrong. Lewis v. Casey, 518 U.S. 343, 351 (1996).
“[T]he very point of recognizing any access claim is to provide some effective
vindication for a separate and distinct right to seek judicial relief for some wrong.” Christopher
v. Harbury, 536 U.S. 403, 414–15 (2002) (emphasis added). The right of access is
“ancillary to the underlying claim.” Id. at 415.

       Parker failed to allege that Tietz frustrated any “underlying claim” by interfering
with his filing of grievances. On appeal, Parker refers obliquely to a medical issue
(scabies), but in his complaint he says nothing about having filed unanswered
grievances about inadequate medical care. According to his pleading, he complained
about unspecified “grievances not getting responded to” and “failure to speak with
supervision multiple attempts.” These complaints did not implicate violations of his
federal constitutional or statutory rights that create cognizable “underlying claims”
under 42 U.S.C. § 1983. Violations of prison policies do not count: “inadequacies of the
grievance procedure itself, as distinct from its consequences, cannot form the basis for a
constitutional claim.” Kervin v. Barnes, 787 F.3d 833, 835 (7th Cir. 2015). Simply put, “the
alleged mishandling of [an inmate’s] grievances … states no claim.” Owens v. Hinsley,
635 F.3d 950, 953 (7th Cir. 2011).

      We advise Parker that because he now has three strikes, with limited exceptions,
he may not proceed in forma pauperis in future federal cases, 28 U.S.C. § 1915(g),
though the strike does not affect his other pending cases.
                                                                             AFFIRMED


Filed 11/21/13 P. v. Cruz CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT

THE PEOPLE,                                                          B246220

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA122130)
         v.

MARTIN VELASQUEZ CRUZ,

         Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Los Angeles County.
Eleanor J. Hunter, Judge. Affirmed.

         Stanley Dale Radtke, under appointment by the Court of Appeal, for Defendant
and Appellant.

         No appearance for Plaintiff and Respondent.

                                          _______________________
          Defendant and appellant Martin Velasquez Cruz appeals from his conviction of
attempted voluntary manslaughter following a jury trial. Following our independent
review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we
affirm.
                       FACTUAL AND PROCEDURAL HISTORY

          Defendant was charged by information filed on July 9, 2012, with the attempted
premeditated murder of Roberto Valenzuela. (Pen. Code, §§ 664, 187.) A gang
enhancement (Pen. Code, § 186.22, subd. (b)(4)) as well as enhancements for personal
infliction of great bodily harm (Pen. Code, § 12022.7, subd. (a)) and personal use of a
deadly weapon (Pen. Code, § 12022, subd. (b)(1)) were also alleged. Defendant pled not
guilty.
          Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357-358), the undisputed evidence at defendant’s jury trial established
that on February 17, 2012, defendant stabbed Valenzuela in the chest, puncturing
Valenzuela’s heart muscle. Valenzuela’s girl friend, Patricia P., testified that she had a
sexual relationship with defendant while they attended the same high school. After the
relationship ended, defendant called Patricia derogatory names at school. Patricia told
Valenzuela that defendant had been disrespectful to her. When Valenzuela and Patricia
boarded an eastbound Green Line train at the Harbor Freeway station on February 17,
they did not know that defendant was in their same car until the train started moving.
Upon noticing defendant, Valenzuela approached him and told him to leave Patricia
alone. Defendant asked Valenzuela where he was from, then pulled out a knife and
stabbed Valenzuela in the chest. During the ensuing struggle defendant stabbed
Valenzuela twice more, causing superficial wounds to Valenzuela’s arm and stomach.
Valenzuela and Patricia exited the train at the Avalon station where Valenzuela
collapsed. He was treated at the scene by paramedics and transported to the hospital. No
weapons were found at the scene or on Valenzuela’s person. Green Line passenger
Alexis Anthony saw the altercation between defendant and Valenzuela. Although he did

                                              2
not see the initial stabbing, Anthony’s impression was that defendant was the aggressor.
Videotapes of the incident, recorded by Metro security cameras, were played for the jury.
       Arrested a few days later, defendant wrote and signed the following statement,
which was admitted into evidence: “I felt threatened. Got jumped before by him and his
friends. Held an erge.[1] Next time I see him, I was going to do something. Hopped the
train, seen him. He did a sudden movement, so I acted and stabbed him a couple of
times. [¶] Some Black guy approached me, bought me a beer, took the knife, and he
took it, he went his way, I went my way. Stabbed him once or twice because I felt
threatened. And I stated my gang and flashed it, Cuatro Flats.”
       Prosecution gang experts testified that defendant was a self-admitted member of
the Cuatro Flats criminal street gang. There was no evidence that Valenzuela was a gang
member.
       Defendant testified that he felt no animosity towards Patricia after their
relationship ended and he never spread rumors about her at school. On the occasions that
defendant saw Patricia with Valenzuela in the neighborhood, Valenzuela would “dog”
defendant, but defendant ignored him. In early December 2011, Valenzuela and two
companions attacked defendant as he was walking home. Defendant did not report the
incident to police but he began carrying a knife for self-protection. When defendant
boarded the eastbound Green Line train on February 17, he did not notice that Valenzuela
and Patricia were in the same car. Defendant was absorbed in listening to his IPod when
Valenzuela approached and accused defendant of “talking shit about his girl.” Defendant
did not know what Valenzuela was talking about until he saw Patricia. As the train
slowed to stop at the next station, Valenzuela threatened to assault defendant and then
nodded at his waist, which defendant understood to mean Valenzuela had a weapon.
When Valenzuela’s hand started to move toward his waist, defendant became fearful that
Valenzuela was going to use that weapon against him. Afraid for his life, defendant
grabbed his own knife and stabbed defendant in the chest. Defendant stabbed Valenzuela

1      Defendant testified at trial that “erge” translates into “anger.”

                                              3
twice more while they struggled because, although Valenzuela never produced a weapon,
defendant was afraid he might do so. Defendant denied being a gang member and
claimed he felt pressured to include the reference to Cuatro Flats in his written statement
by the detectives’ encouragement to “cooperate.”
          The jury found defendant not guilty of attempted murder, but guilty of the lesser
included offense of attempted voluntary manslaughter. (Pen. Code, § 192, subd. (a).)
The jury found the gang enhancement not true, but found true the great bodily injury and
deadly weapon enhancements. Defendant was sentenced to 9 years, 6 months in prison,
comprised of the 5 year, 6 month high term for attempted manslaughter, plus a
consecutive 3 years for the great bodily injury enhancement, plus a consecutive 1 year for
the personal use of a deadly weapon enhancement. He timely appealed.
          We appointed counsel to represent defendant on appeal. After examination of the
record, appointed counsel filed an opening brief which contained an acknowledgment
that he had been unable to find any arguable issues and requesting that we independently
review the record pursuant to Wende, supra, 25 Cal.3d 436. On August 30, 2013, we
advised defendant that he had 30 days within which to personally submit any contentions
or issues which he wished us to consider. Defendant did not submit any contentions or
issues.
          We have examined the entire record and are satisfied that appointed counsel fully
complied with her responsibilities and that no arguable issues exist. (Wende, supra,
25 Cal.3d at p. 441.)

                                           DISPOSITION

          The judgment is affirmed.

                                                   RUBIN, J.
WE CONCUR:

                BIGELOW, P. J.                                          GRIMES, J.

                                               4