INDIANS: FCA, whistleblower, other claims relating to termination of tribal college nursing staff dismissed based on sovereign immunity… claims against Board Members personally may still be viable… Morris.

Plaintiffs were employed by Salish Kootenai College as instructors, clinical coordinators, mentors, and grant managers. Their duties included instruction of clinical externships, coordination of lab activities, and presentation of data for federal grants. They were terminated in 2002. DHHS and IHS provided funds to SKC through a Pathways into Nursing Education grant to increase nursing education, recruitment, and training of American Indian and Alaska Native students and a Nursing Workforce Diversity grant to support projects that increase nursing education for disadvantaged persons. IHS conditioned grant monies on full-time enrollment of Indians and Alaska Natives in health professions who intend to work in underserved communities. Plaintiffs allege that SKC, SKC Foundation, and SKC Board of Directors violated the FCA, federal whistleblower provisions, and Montana laws by misrepresenting attrition, inflating grades of failing students, and retaining failing students to keep grant monies flowing. They allege that Defendants discharged, demoted, threatened, harassed, and otherwise discriminated against Plaintiffs in terms & conditions of their employment, which ultimately resulted in their termination, and that they blacklisted or allowed their employees to blacklist Plaintiffs. They seek monetary damages under the FCA and compensatory and punitive damages under Montana law, including $7 million from the Tribe. Defendants move to dismiss on the basis of tribal sovereign immunity.

The Tribe’s charter does not effect a broad waiver of immunity for the Tribe or its entities and employees. SKC functions as an arm of the Tribe. Tribal sovereign immunity bars Plaintiffs’ claims against SKC.

Tribal sovereign immunity likewise bars Plaintiffs’ claims against the Board Members, whom they sued in their official capacities. The remedy sought would operate against the Tribe itself. A small window appears to remain open as to amendment of Plaintiffs’ complaint to allege viable federal and state law claims against Board Members in their personal capacities.

Plaintiffs fail to state a valid claim against the Foundation. ED Angelique Albert attests that it never employed any of the Plaintiffs.

The Court recognizes that tribal sovereign immunity represents “a fundamental barrier to a just legal process in Indian Country” because it leaves innocent victims with no fair remedy. Wilkinson, American Indians, Time, and Law. Plaintiffs will have to seek any remedy from CKS in Tribal Court and from Board Members personally.

Dismissed with prejudice against SKC and SKC Foundation. Dismissed without prejudice against SKC Board of Directors. Plaintiffs may file an amended complaint against the Board by 12/18/14.

Cain, Archer, Ovitt v. Salish Kootenai College et al, 42 MFR 180, 12/3/14.

David Cotner, Trent Baker, and Jason Williams (Datsopoulos, MacDonald & Lind), Missoula, for Plaintiffs; Martin King & Matthew Cuffe (Worden Thane), Missoula, for Defendants.

REMOVAL: Pre-service removal by Montana Defendant in pedestrian/vehicle suit improper under “forum defendant rule,” remanded… fees/costs to Oklahoma Plaintiff denied due to unsettled law, inconsistent holdings… Ostby/Watters.

Magistrate Ostby’s Findings/Recommendations 

Pedestrian Jason Talbot of Oklahoma was struck by a car driven by Montanan Jonathan Tokarski in Billings. Talbot sued Tokarski as sole Defendant in State Court 8/27/14 alleging serious brain damage. On 9/4, before being served, Tokarski removed to this Court. Talbot argues that a sole defendant who is a citizen of the State in which an action is brought may not remove, citing the “forum defendant rule” at 28 USC 1441(b)(2). Tokarski responds that he had not been served when he filed his notice, and 1441(b)(2) prohibits removal only if a properly joined “and served” forum defendant is a citizen of the forum state.

§1441(b)(2) provides:

A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

Some courts within the 9th Circuit have applied the apparent literal meaning to deny removal, while others have reasoned that it is meant to prevent fraudulent joinder and does not apply where the notice of removal is filed before the plaintiff is able to effect service. Cases outside the 9th Circuit generally fall into 3 categories: the plain language allows pre-service removal by a forum defendant; a literal interpretation would create an absurd result; the plain language permits removal only after service of at least one defendant. Legislative history does not explain the purpose of the “joined and served” language, but courts “have interpreted it as an effort to prevent gamesmanship by plaintiffs.” Goodwin (11th Cir. 2014) (noting that in the view of many courts, the purpose is “to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom [the plaintiff] does not intend to proceed, and whom [the plaintiff] does not even serve”).

Tokarski has not met his burden of proving that removal is proper. As other courts have held, the provision that prohibits removal “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought” implies that there is at least one defendant that is a party that has been properly joined and served. Allowing the forum defendant to avoid the forum defendant rule by racing to remove before being served would frustrate the purpose of the overall statutory scheme. There is no need for protection from local bias when the sole defendant is a forum defendant.Lively (9th Cir. 2006); American Trucking Associations (US 1940). Interpreting the statute to allow such removal would encourage gamesmanship, which it was intended to prevent. Recommended, Talbot’s motion to remand be granted. To hold otherwise would “eviscerate the purpose of the forum defendant rule.” Mozilo (CD Cal.)

Talbot requests attorney fees & costs against Tokarski for improper removal. Due to the unsettled nature of the law and inconsistent holdings, the Court finds that Tokarski had an objectively reasonable basis on which to file the notice of removal. Recommended, Talbot’s request for fees & costs be denied.

– – – 

Judge Watters’s Order 

Neither party objects to Magistrate Ostby’s recommendation that this Court grant Talbot’s motion for remand. The Court adopts it in full.

Talbot argues that Ostby erred in denying his request for fees & costs because “Tokarski’s removal of this case was the most wrongful removal ever witnessed in [his counsel’s] 43 years of law practice.” Talbot reiterates many policy reasons why removal was improper (which is in part why the case is going to be remanded) but fails to convince the Court that Tokarski was acting as insidiously as Talbot contends by attempting removal. This Court, like Ostby, finds that the unsettled nature of the law provided Tokarski an objectively reasonable basis on which to file his notice of removal. While Talbot argues that there is “no `unsettled nature’ of decisions where a forum defendant waives service, files a notice of appeal and then claims he wasn’t served,” it is notable that combined, the parties required almost 50 pages of briefing and over 50 separate case citations to argue their points. The Court agrees with Ostby that Talbot’s request for fees & costs is unwarranted and therefore it is denied.

Talbot v. Tokarski, 42 MFR 168, 10/24/14, 42 MFR 177, 11/25/14.

Zander Blewett (Hoyt & Blewett), Great Falls, for Talbot; James Halverson & John Wright (Halverson & Mahlen), Billings, for Tokarski.

INSURANCE: Cosmetics students’ claims against school of, inter alia, boorish behavior by instructor and wrongful expulsion after filing complaints did not trigger duty to defend under CGL bodily injury coverage… expert’s opinion of physical manifestations of emotional distress did trigger duty, but duty met by acceptance of defense under reservation shortly thereafter… no coverage/ duty to defend against expulsion under “wrongful eviction” clause… insurer not liable for $4 million consent judgment entered after it accepted defense under reservation… Christensen.

Students of Dahl’s College of Beauty in Great Falls sued in 8/12 alleging that they were wrongfully expelled after filing complaints of unprofessional conduct by instructors, sexual harassment, occupational health & safety, violations of policies & procedures, violations of licensing rules & regulations, and failure to conform to accrediting standards. Dahl’s was insured under a Maryland Casualty CGL policy with a $4 million aggregate limit for bodily injury & property damage (Coverage A) and personal & advertising injury (Coverage B). Dahl’s tendered defense to Maryland 9/7/12. Maryland denied a defense 10/23, noting that Plaintiffs indicated that they were “not seeking damages resulting from bodily injury arising from an accident,” thereby excluding any claims under Coverage A, and also denied coverage under B pursuant to a number of exclusions. Plaintiffs then filed their 1st amended complaint 4/5/13 wherein they “simply changed some of the named Student Plaintiffs.” Dahl’s again tendered a defense and Maryland again denied a defense. Plaintiffs then filed their 2nd amended complaint 7/18/13 which “changed no substantive allegations.” Dahl’s tendered a defense under the 2nd amended complaint 8/16/13 and included Plaintiffs’ expert disclosure and affidavits of several Plaintiffs. Maryland responded 8/28/13 that it was retaining counsel and would respond as soon as possible. Dahl’s sent a follow-up letter 9/24 demanding that Maryland confirm its defense and indicating that it would otherwise enter into a consent judgment here are the findings. Maryland, through retained coverage counsel, responded 9/26 with an 11-page letter outlining its position and ultimately agreeing to provide a defense under full reservation of rights. Sometime between 9/26 and 10/11, Plaintiffs and Dahl’s agreed to settle through Dahl’s confession of judgment for $4 million and assignment to Plaintiffs, and the Court dismissed the case. Plaintiffs instituted this action against Maryland 10/29/13 seeking a declaration that the policy provided coverage for their claims against Dahl’s and that it is consequently liable for the consent judgment. They also allege breach of the contract and violations of the MUTPA for which they seek compensatory, punitive, and exemplary damages.

The Court agrees with Maryland — and with Plaintiffs — that the complaints did not trigger Maryland’s duty to defend Dahl’s under Coverage A. Of the 5 counts common to each pleading, only the Title IX count approaches alleging facts implicating Coverage A: sexual harassment by Dahl’s instructor’s boorish behavior which was allegedly “severe, pervasive, unwelcome, objectively offensive” and deprived Plaintiffs of educational opportunities or benefits. They alleged that Dahl’s acted with deliberate indifference by, inter alia, failing to remedy the harassment, failing to establish any complaint procedure whereby they could obtain redress, and by terminating them in retaliation for complaining about the behavior. These allegations are not consistent with an “occurrence” of “bodily injury” or “property damage” as defined in the policy and interpreted by Montana courts.

However, Plaintiffs’ disclosure of clinical social worker Katy Nicholls, provided to Maryland 8/20/13, does allege facts triggering coverage under A:

[Plaintiffs] suffered physical manifestations of emotional distress. Physical manifestation is the bodily response to negative emotion. The physical manifestations reported are somewhat varied in intensity and longevity. At a minimum, the women reported feeling nauseous or sick when they knew they had to go into school. This is a common response to fear or strain. Bodily response to anger is reported as a quickening of the heartbeat, flushed skin and shortness of breath. These are common responses and meet the criteria for physical manifestation of emotional distress based on the information that has been provided to me. Some of the more extreme physical responses to the emotional distress include panic attacks, bouts of deep depression, onset/ increase of migraine headaches, vomiting, weight gain, weight loss, and insomnia. A number of [Plaintiffs] reported feeling hopeless and helpless, a feeling that is often described commonly as depressed. They felt they had lost their will to go on. In conclusion, it is my opinion that, based on a reasonable degree of professional certainty, each of the students suffered emotional distress and the physical manifestation of such distress in one form or another.

Thus at the time the disclosure was provided to Maryland, Plaintiffs alleged bodily injury sufficient to trigger coverage and Maryland’s duty to defend.Wagner-Ellsworth (Mont. 2008) (Montana courts construe “bodily injury” to include a mental or psychological injury accompanied by physical manifestations). A month after receiving the disclosure, Maryland accepted Dahl’s defense under reservation of rights and explained its coverage concerns. It had no obligation to discover these coverage-triggering facts on its own. Landa (Mont. 2013). Its contractual duty after receiving the information was to provide a defense, and it attempted to do so prior to Dahl’s settling and consenting to judgment. It did not breach its duty to defend under Coverage A.

Plaintiffs argue that because their complaints alleged and made “multiple references to [Plaintiffs’] wrongful expulsion from the cosmetology school,” Maryland’s duty to defend was triggered under the wrongful eviction clause in Coverage B covering:

c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord, or lessor.

The policy does not expound on “wrongful eviction” beyond the definition of “personal and advertising injury,” and the Montana Supreme Court does not appear to have construed it. “Eviction” generally contemplates “the act or process of legally dispossessing a person of land or rental property.”Black’s. In the context of PI coverage under the standard CGL form, “actions for wrongful … eviction deal with violations of one’s real property rights” and “claims that do not involve the physical occupation of or trespass upon real property are not covered.” Windt, Insurance Claims & Disputes (“there should not be coverage for `wrongful entry or other invasion of the right of private occupancy’ unless there is an impingement upon possessory rights”). Plaintiffs’ attempt to shoehorn their alleged expulsion from Dahl’s into what is a common & established real property concept is unavailing. They do not allege that they were tenants of Dahl’s, that they had rented out any part of the facility, or that their tuition in some way vested in them a possessory interest in the facility. Rather, “any `eviction’ [Plaintiffs] suffered was a symptom” of actions by Dahl which, although objectionable, fell outside the scope of coverage under the Maryland policy. The Court will not “distort” the traditional, real property understanding of eviction “so as to include a risk clearly excluded by the insurance contract.” Ribi (Mont. 2005). Maryland did not breach its duty to defend under Coverage B.

Given the conclusions that Maryland did not breach its duty to defend Dahl’s, it follows that Maryland is not liable for Dahl’s defense costs or the amount of the consent judgment. Per Freyer (Mont. 2013) and Tidyman’s (Mont. 2014), a stipulated judgment becomes the responsibility of the insurer only when it unjustifiably refuses to defend its insured. Maryland timely accepted defense under reservation of rights once facts triggering coverage came to light. The parties agree that Plaintiffs and Dahl’s entered into the $4 million consent judgment after Maryland informed Dahl’s of this acceptance. They deprived Maryland of the opportunity to participate in the underlying litigation at the very moment that its contractual duty to do so materialized.

Walden et al individually and as assignees of Dahl’s College of Beauty v. Maryland Casualty,42 MFR 147, 11/18/14.

Dennis Conner & Keith Marr (Conner & Marr), Great Falls, for Plaintiffs; Carey Matovich & Katherine Huso (Matovich, Keller & Murphy), Billings, for Maryland.

INSURANCE: Work comp offset unambiguous, does not result in “double offset” for UIM insurer, precludes double recovery for insured… Strong.

RC Preston was in an MVA while working for ELM One Call Locators in 2008. The accident was caused by negligence of Chase Rummel, who was working for All Seasons Spas & Stoves. All Seasons’ insurer Mountain West Farm Bureau paid policy limits on claims from the MVA, including $480,210 to settle Preston’s claims against Rummel and All Seasons. One Call was insured by Hartford with $1 million UIM. One Call and Preston also had work comp through Commerce & Industry Ins. He settled the comp claim for $204,582 medicals and $125,101 lost wages. He contends that his damages significantly exceed the $480,210 and seeks additional recovery from the Hartford UIM. He concedes that Hartford is entitled to offset for the $480,210 payment from Mountain West. Hartford contends that any damage award should be offset by the comp settlement pursuant to its “worker’s compensation offset provision:” “We will not pay for any element of “loss” if a person is entitled to receive payment for the same element of “loss” under any worker’s compensation, disability benefits or similar law.” Preston concedes that the provision is legal and not against public policy, but argues that the exclusion should not be applied because the comp payments were for the same element of loss — medical expenses and lost wages — that were also included in the Mountain West payments. Thus, according to Preston, application of the offset would permit Hartford to double-offset the same damages.

It is undisputed that the comp offset is legal, consistent with public policy, and describes payments that Preston received. It makes no exception for comp payments that overlap with other payments already made. The Court must enforce the contract as written if its language is clear & explicit. Stutzman(Mont. 1997). It is clear & explicit. Preston’s equitable argument would not justify rewriting the provision even if it were persuasive. He worries that its application will permit Hartford a “double offset.” But if the 2 offsets are applied, Hartford would simply be required to pay the difference between his total damages (as determined by a jury) and whatever he has already recovered. He does not satisfactorily explain how Hartford would be unjustly enriched in that scenario. If the provision is not enforced, he would double recover the $329,683 paid by the comp carrier. (Affidavit of Drew Blewett that the Mountain West award included damages that have also been paid by the comp carrier). He is not so much arguing against Hartford’s double recovery as for his own double recovery of comp. Montana law does not allow for double recovery or duplicate payments of comp. Olson (Mont. 2001).

Preston argues alternatively that the offset provision is ambiguous because it is unclear if it applies to comp benefits that are wholly redundant of another damage award that is the basis for an offset. Newbury (Mont. 2008) held that a similar offset — no coverage “to the extent workers’ compensation benefits are required to be payable” — was not ambiguous. Judge Cebull in Leys (D.Mont.2011) considered the exact provision as it pertained to UIM and held that the “policy language clearly and ambiguously provides [the insurer] will not pay for losses if the person is entitled to be paid by worker’s compensation for the same loss. Under Newbury, such a provision is perfectly lawful.” Preston cites no authority to counter Newbury and Leys, but argues that the provision is ambiguous because the parties interpret it differently. Their disagreement does not make it ambiguous. Burrell (Mont. 2010).

Partial summary judgment for Hartford.

– – – 

Preston’s motion to certify to the Montana Supreme Court was construed as a motion to reconsider. Upon reconsideration, the additional authorities & arguments do not mandate a different result when the policy includes an unambiguous work comp offset provision.

Preston v. Hartford Casualty Ins., 42 MFR 128 , 5/30/14, 42 MFR 137 , 10/10/14.

Zander Blewett & Drew Blewett (Hoyt & Blewett), Great Falls, for Preston; Patrick Sullivan (Poore, Roth & Robinson), Butte, for Hartford.

RESTITUTION: $29,859 restitution awarded to 1 victim in child porn bulletin board conspiracy out of $11,980-$16,400 requested from each of 13 Defendants, 0 to 2nd victim out of $150,000 requested from each Defendant, determined by “continuing traffic”/“relative causal role” equation… Molloy.

Restitution requests have been made for 2 victims identified in images on the Kingdom of Future Dreams bulletin board created by Paul Wencewicz of Polson and Scott Long of Portland to distribute, advertise, and receive child pornography. (Nearly all the porn was of girls ages 10-16 posing alone or with other girls, most from Ukraine or Russia. The victims requesting restitution are Americans who are now adults and whose images were taken when they were 10-14. 11 Defendants plea-bargained for 15 years mandatory minimums and have received 180-240 months so far. 2 Defendants went to trial and were convicted of both 15-and 20-year charges and are to be sentenced in January.)

18 USC 2259 of the Violence Against Women Act of 1994 requires restitution for “the full amount of the victim’s losses as determined by the court” for certain offenses including those involving child pornography. “Full amount of the victim’s losses” includes any costs incurred by the victim for

(A) medical services relating to physical, psychiatric, or psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child care expenses;

(D) lost income;

(E) attorneys’ fees, as well as other costs incurred;

(F) any other losses suffered by the victim as a proximate result of the offense.

Paroline (US 2014) rejected the argument that one convicted of possessing child pornography could be held liable for the full amount of the victim’s losses, and imposed a standard of proximate causation while at the same time disavowing a strict “but for” standard, reasoning that the purposes of 2259, the unique harm suffered by child porn victims, and the “atypical causal process” underlying the victims’ losses supported a more flexible causation approach. It ultimately held that

where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.

Factors that may be considered in determining a defendant’s relative role include

the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role.

Angela has requested $12,100.20-$16,520.20 per Defendant. LS has requested $150,000 per Defendant. The US has requested $3,000 for each victim, but has provided no justification under Paroline or any other framework. As its request appears entirely arbitrary, it cannot be granted. Miner (NDNY 2014) (rejecting US’ unsubstantiated $3,000 request).

The US has presented evidence that 1 image of Angela and 3 of LS were on the KOFD board at some point, and that 1 thread (containing 1 image of Angela and 1 of LS) was viewed 29 times, and another thread (containing 2 images of LS) was viewed 43 times. Defendants argue that because the US cannot prove that they individually viewed, downloaded, or shared the images, the nexus between them and the images does not exist. However, the US does not need to prove that an image was actually opened or viewed; possession is sufficient. Paroline. This leaves the question of whether the presence of the images on the KOFD board as a whole, as opposed to in any of the individuals’ private collections, is sufficient to justify possession. It is. As part of the conspiracy to advertise child porn, all Defendants are accountable for the images depicting child porn on the KOFD board. Laney (9th Cir. 1999).

Numerous courts have determined loss in light of the “continuing traffic” of an image post-Paroline. Having reviewed those decisions, the following equation is used to determine general losses: psychological treatment/ counseling costs following the offense conduct PLUS educational and/or vocational losses MINUS costs directly related to another defendant or litigation PLUS costs after the offense conduct that are impossible to trace to an individual defendant alone (e.g., cost of evaluation).

1 image of Angela was found on the KOFD board available 4/4/10-3/19/12, and 29 views of the thread containing the image. According to the US, 19 restitution orders have been issued for her. An expert report dated 3/10-11/14 shows that she suffers PTS, major depressive disorder, and unspecified ADD as a result of the sexual abuse documented in her images found online. These injuries continue to be aggravated by the continued distribution and viewing of her abuse. Although focusing primarily on the resulting harms and costs from her initial abuse, the report by Alexandria Doyle shows that the costs associated with her continued treatment & care are at least partly related to the continuing traffic in her image as she “is fearful that the consumers of pornography in which she is the object will find her and rape her.” The knowledge that other men have her photos and the notification of such possession “creates distress for her mother as well as her as she is reminded of being abused and exploited. She feels saddened that she is the object of other’s perversions and worries about the risks it poses to her. This contributes to the feeling that additional trauma could face her.” Id. Angela’s counsel has submitted documentation dated 3/14 estimating her covered losses over the next 20 years at $183,000-$293,000, and over her lifetime, $366,000-$587,000. Taking the midpoint of the $366,000-$587,000 estimated by Doyle, the Court finds her future treatment costs to be $476,500. Watkins (EDCal 2014); Hernandez (EDCal 2014) (averaging high/low estimates submitted by the victim). Angela has not made any request for education/vocational losses, nor is there any indication that any of the costs provided are directly related to another defendant or litigation, and she has not presented any post-conduct costs that are impossible to trace to any individual defendant alone. Accordingly, the total amount of her general losses is $476,500. She has provided an estimated $4,780.20 attorney fees/costs arising out of this restitution request, which is supported by the affidavit of her counsel, which includes an itemized breakdown of the costs associated specifically with the request in this case, although it is the same across all the KOFD Defendants. Because attorney fees (unlike her psychological injuries) are traceable to particular cases involving specific defendants, they are not included in the general losses to be apportioned. Paroline. These case-specific costs are added after the general losses are apportioned.

3 images of LS were found on the KOFD board, 1 available from 4/4/10-3/19/12, with 29 views of the thread, and 2 images available 5/4/10-3/19/12, with 43 views of the thread. According to the Center for Missing & Exploited Children, this series has been actively traded since 2005. Its analysts have encountered the “Jan_Feb” series in over 5,000 evidence reviews submitted by law enforcement, and the series is recognized by authorities as “one of the most prolific and widely-traded images series via the internet.” According to the US, 149 restitution orders have been issued for LS. Her restitution packet does not include up-to-date information such as what losses were sustained after the instant offense and makes no reference to any of the Parolineanalysis. The psychological & monetary data that has been provided is dated 7/1/10, which is before her images were posted on the KOFD board. Absence of information as to costs incurred after the offense conduct in this case leaves no reasonable basis for calculating those costs fairly attributable to Defendants here. Gamble (6th Cir. 2013) (“As a logical matter, a defendant generally cannot cause harm prior to the date of his offense.”); Galan(D.Or. 2014) (denying restitution request based on outdated & generalized cost assessments). Although there is a letter from LS’s mother describing the losses her child has suffered through the spread of her images and although the report by Sharon Cooper states that LS “will continue to suffer mental, emotional and psychological damage for the rest of her life as a direct consequence of the actions of those who download, trade and possess her pornographic images,” this is insufficient to overcome the lack of specific losses attributable to these Defendants’ conduct. Galan. Even if the Court were to accept the amounts included in her “Medical and Mental Health Cost Analysis,” there is no breakdown as to past or future treatment, and the request of $150,000 appears entirely arbitrary as it is not based on Defendants’ relative causal role. LS’s request for restitution is denied.

Once the general losses are determined it is necessary to determine Defendants’ relative role in the losses. This case is different from Paroline and many others in which an individual defendant was convicted of an individual crime, such as receipt, possession, or distribution. Defendants here have been convicted of conspiracy to advertise child pornography. 18 USC 2251(d) & (e). The causal role is thus that of the conspiracy as a whole. Under theGamble (6th Cir. 2013) calculation, a court takes the amount of general losses and divides by the number of previous restitution orders. Post-Parolineorders have been entered in 19 previous cases involving Angela. That would mean dividing her total loss of $476,500 by 19, resulting in an apportionment of general losses of $25,078.95. There is no information on which to reasonably predict future offenders. However, the other Paroline factors inform our understanding of the conspiracy’s relative causal role. For example, 1 image of the victim (of 3,400+ child porn images on the board as a whole) was posted to a forum on the KOFD board. The thread in which it was contained was viewed 29 times, although it is unclear by whom or if there were multiple views by 1 or more users. No evidence has been presented connecting any of the Defendants with the initial production of the image, which the record attributes to the victim’s father. As these factors do not show a need to impose greater restitution than those general losses attributable to the conspiracy and the attorney fees related directly to this case, the total losses caused by the KOFD conspiracy are $29,859.15 ($25,078.95 general losses plus $4,780.20 fees).

“If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s losses and economic circumstances of each defendant.” 18 USC 3664(h). Because Defendants have all been convicted as part of a conspiracy and are all accountable for the images on the KOFD board as a whole, joint & several liability is appropriate. (The judgments impose restitution on each Defendant of $29,859. Payments of $100-$150/mo are to begin after release from prison until the total of all payments equals $29,859. In addition, a $5,000 and $100-$200 special assessment are imposed).

US v. Wencewicz, Long, Humiston, Morris, Bronson, Woolley, Crosby, Johnson, Purificato, Nosek, Petersen, Grovo, and Krise, 42 MFR 113, 10/24/14.

Federal Defender Andrew Nelson for Wencewicz; Colin Stephens (Smith & Stephens), Missoula, for Long; Kathleen DeSoto (Garlington, Lohn & Robinson), Missoula, for Humiston; Johnna Sutton (Van de Wetering & Baffa), Missoula, for Morris; Lisa Kauffman, Missoula, for Bronson; Peter Lacny (Datsopoulos, MacDonald & Lind), Missoula, for Wooley; Dwight Schulte (Schulte Law Firm), Missoula, for Crosby; Eric Henkel (Reep, Bell & Laird), Missoula, for Johnson; Wendy Holton (Holton Law Firm), Helena, for Purificato; Jesse Froehling (Froehling Law Office), Puyallup, for Nosek; Penelope Strong (Strong Law Office), Billings, for Petersen; Timothy Bechtold (Bechtold Law Firm), Missoula, for Grovo; John Ferguson (Ferguson Law Office), Missoula, for Krise; AUSA Cyndee Peterson; Maureen Cain (DOJ Child Exploitation & Obscenity Section), DC.