author: BAILEY BROWN, Circuit Judge.

text:
    ATLANTIC RICHFIELD COMPANY, a Pennsylvania corporation, Plaintiff-Appellee, v. MONARCH LEASING COMPANY, a defunct Michigan corporation; George D. Rinaldi; and Francis A. Rinaldi, jointly and severally, Defendants-Appellants.
    No. 95-1299.
    United States Court of Appeals, Sixth Circuit.
    Argued May 3, 1996.
    Decided May 22, 1996.

      Edward C. Cutlip, Jr., Patrick J. Haddad (argued and briefed), Kerr, Russell & Weber, Detroit, MI, for Atlantic Richfield Co.
    John A. Lygizos (argued and briefed), Detroit, MI, for Monarch Leasing Co., George D. Rinaldi and Francis A. Rinaldi.
    Before: BROWN and SILER, Circuit Judges; HOOD, District Judge.

      The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Ken-tacky, sitting by designation.

   BAILEY BROWN, Circuit Judge.

The defendants appeal from the district court’s award of summary judgment to the plaintiff in an action brought to renew a monetary judgment which was originally entered for the plaintiff in a 1984 diversity breach of contract case. The defendants contend that the plaintiff’s complaint in the instant case was not timely brought under the applicable Michigan statute of limitations. For the reasons that follow, we AFFIRM the decision of the district court.

I. BACKGROUND

The facts are undisputed. In 1982, Atlantic Richfield Company (“ARCO”) sued the defendants in federal district court to enforce the defendants’ guarantees that they would pay a debt of more than $2.2 million which was owed to ARCO. Jurisdiction was based solely on diversity of citizenship.

On June 4, 1984, the district court (Cohn, J.) held a hearing on a motion for summary judgment filed by ARCO. In that hearing, the court announced from the bench that it would grant ARCO’s motion, and instructed ARCO’s attorneys to draft an appropriate order. The court also discussed damages, but it stated that, if the parties could not agree on the precise amount of damages, it would hold another hearing.

On June -25, 1984, the district court entered a written order granting summary judgment to ARCO and itemizing the damages owed, including interest and attorney’s fees. Evidently, the parties had agreed on the final amount. In its order, however, the district court used the date of June 4 as an accrual date for purposes of calculating interest.

On June 22, 1994, almost ten years to the day after the district court had entered that written order, ARCO returned to court and filed suit to extend the life of the judgment against the defendants, and the case was assigned to Judge Cohn. ARCO had yet to collect the judgment fully, although the late Mr. Rinaldi’s estate had made some payments to ARCO, and a settlement agreement between the parties had discharged a portion of the debt. More than $4.2 million remained owing to ARCO, including more than $2.6 million in unpaid interest that had accrued under 28 U.S.C. § 1691.

The defendants countered by contending that ARCO had failed to timely file, under the Michigan statute of limitations, its suit to extend the life of the 1984 judgment. The statute of limitations of the forum state applies in federal diversity eases pursuant to Walker v. Armco Steel Corp., 446 U.S. 740, 753, 100 S.Ct. 1978, 1986, 64 L.Ed.2d 659 (1980). The Michigan statute provides that judgment renewal actions like ARCO’s must be brought within ten years “from the time of the rendition of the judgment.” Mich. Comp.Laws Ann. § 600.5809(3) (West 1987) (emphasis added).

The defendants contended below (as they do in this appeal) that the district court “rendered” its judgment against them on June 4, 1984, when it announced from the bench that it would grant ARCO’s motion for summary judgment, and not on June 25, 1984, when the district court issued its written order granting summary judgment to ARCO.

The district court, on cross-motions for summary judgment, granted ARCO’s motion and denied the defendants’ motion. The court noted that, under both the Walker case and Federal Rule of Civil Procedure 69(a), which dictates the procedure for enforcing money judgments in federal courts, it was bound to apply the Michigan statute of limitations. After reviewing the Michigan statute, the court below rejected the defendants’ argument that it “rendered” judgment for ARCO on June 4, as opposed to June 25. Relying on Federal Rule of Civil Procedure 58, which mandates that federal court judgments be “set forth on a separate document” apart from opinions and memoranda, the district court stated that “[a] federal court judgment does not exist until it is put in writing.” Thus, the court below continued, it could not have “rendered” a judgment for ARCO until it put its decision in writing on June 25, 1984. The court then held that, because ARCO had filed suit in the instant ease on June 22, 1994, it had satisfied Michigan’s ten-year statute of limitations. The defendants timely appealed.

II. ANALYSIS

A. Standard of Review.

We review the district court’s grant of summary judgment de novo, using the same test the district court used when reviewing the motion. E.g., Maddox v. University of Tenn., 62 F.3d 843, 845 (6th Cir.1995). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When dealing with cross-motions for summary judgment, these same rules of review apply. E.g., Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 50, 133 L.Ed.2d 15 (1995). If the facts of a case are undisputed, as they are here, one of the parties is clearly entitled to summary judgment. Niecko v. Emro Mktg., 973 F.2d 1296, 1304 (6th Cir.1992).

B. Choice of Law.

The parties agree with the district court that, under Walker, 446 U.S. at 753, 100 S.Ct. at 1986, the Michigan statute of limitations controls in this diversity case. They also agree with the general principle that, under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny, a blend of federal procedural law and state substantive law controls this case. See Hanna v. Plumer, 380 U.S. 460, 471-74, 85 S.Ct. 1136, 1144-46, 14 L.Ed.2d 8 (1965) (holding that the Federal Rules of Civil Procedure apply in diversity eases where they are on point, unless they both directly conflict with state law and are invalid under the Constitution or the Rules Enabling Act); see also Walker, 446 U.S. at 749-50, 100 S.Ct. at 1984-85 (reaffirming Hanna).

The real issue in this case is on which day the district court “rendered” its original summary judgment for ARCO in 1984: on June 4 (orally), or in its written order of June 25. This issue could well be viewed as either procedural or substantive, depending upon one’s perspective. As the Hanna Court noted, “The line between ‘substance’ and ‘procedure’ shifts as the legal context changes. ‘Each implies different variables depending upon the particular problem for which it is used.’ ” Hanna, 380 U.S. at 471, 85 S.Ct. at 1144 (quoting Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079 (1945)). Nevertheless, as we will explain below, the Supreme Court’s decision in Hanna mandates that we find the issue here to be procedural, because there is a Federal Rule of Civil Procedure, Rule 58, directly on point.

We hold that, under federal procedural law, a federal court judgment is “rendered” only when it is set forth in writing on a separate, discrete document and entered on the civil docket. Thus, under Michigan’s substantive law, ARCO met the statute of limitations because it filed its complaint in the instant case within ten years of the district court’s original “rendition” of summary judgment. We also believe, however, that the applicable rule is the same under Michigan law. Thus, we do not fear that our holding in this case will promote any “forum-shopping.” See Hanna, 380 U.S. at 468, 85 S.Ct. at 1142 (reminding courts of the “twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws”). We will analyze both bodies of law to support this conclusion.

C. Federal law.

Because Rule 58 mandates that federal court judgments be set forth on a separate document, because the Supreme Court has held that the Rule’s requirement of a separate writing is to be mechanically observed, and because a proper federal rule of procedure “has the force of a federal statute,” we hold that the district court in the instant case “rendered” its judgment on June 25, 1984, when it issued and entered its written order granting summary judgment to ARCO and defining the amount of damages owed by the defendants. Thus, under the Michigan statute of limitations, ARCO timely filed its complaint to extend the life of the original judgment it won.

We are mindful of the Supreme Court’s statement in Walker, 446 U.S. at 753, 100 S.Ct. at 1986, that, “in the absence of a controlling federal rule,” the mere presence of diversity jurisdiction should not allow actions to survive in federal court when they would be barred in state courts on limitations grounds. Nevertheless, in this case we have such a “controlling federal rule”: Rule 58.

Under the Court’s holding in Hanna, we must follow that rule unless we find that it is invalid under the Rules Enabling Act, 28 U.S.C. § 2072, or the Constitution, which we do not. Hanna, 380 U.S. at 471-74, 85 S.Ct. at 114446. Rule 58 is a purely procedural “housekeeping” rule that helps courts and litigants conduct their business with a desirable level of certainty, and it fits within Congress’s constitutional power to craft rules of federal court procedure. See id. at 472-73, 85 S.Ct. at 1144-45 (upholding the federal service of process rule, 4(d)(1), over a conflicting state rule on the grounds of promoting uniformity in the federal courts and recognizing Congress’s power “to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either”). As such, Rule 58 is properly applicable to the instant case.

We also note that accepting the defendants’ position on the issue of when a judgment is “rendered” would yield an absurd result entirely at odds with the policies and concerns underlying the federal rules in general, and Rule 58 in particular. As the district court noted, holding that a judgment is “rendered” when a federal court simply announces its decision from the bench, and not when the court actually writes its complete judgment as Rule 58 requires, would create widespread confusion in computing time for posttrial motions and appeals. See Fed. R.Civ.P. 59 (requiring that motions to alter or amend judgments be filed within ten days of the entry of judgment); Fed.R.CivJP. 62(a) (requiring prevailing parties to wait until ten days after the date on which a judgment is entered before they may execute on a judgment); Fed.R.App.P. 4 (requiring that a notice of appeal must be filed within thirty days after the date on which a judgment is entered).

The Advisory Committee Notes on Rule 58 bolster this conclusion. Those notes state that the rule is designed to eliminate uncertainties about precisely when a court rendered a judgment. Such uncertainties had arisen in contexts analogous to the one in the instant case, where courts wrote opinions or memoranda “containing some apparently directive or dispositive words,” such as, “ ‘the plaintiffs motion [for summary judgment] is granted.’ ” Because the opinions or memo-randa sometimes lacked all the requisite elements of a judgment, and because judges sometimes later signed formal judgments in addition to those opinions and memoranda, Rule 58 was amended to clarify when a judgment became “effective, starting the time running for post-verdict motions and for the purpose of appeal.”

Given this clear need for certainty, we should not cloud the issue of when a federal court judgment is “rendered” — it is “rendered” when it is set forth in writing on a separate document and entered on the civil docket, in compliance with Rule 58. See United States v. Woods, 885 F.2d 352, 353 (6th Cir.1989) (per curiam) (holding that a district court’s marginal order granting summary judgment did not meet the strict requirements of Rule 58 because “a party may reasonably be confused as to the standing of its ease when a decision is rendered in such an informal manner”) (emphasis added); Simon v. City of Clute, 825 F.2d 940, 942 (5th Cir.1987) (discussing the Advisory Committee’s concern with eliminating uncertainties); Duffer v. American Home Assurance Co., 512 F.2d 793, 799 (5th Cir.1975) (holding that the trial court’s oral expression, in open court, of its future intention to render a judgment was not itself a judgment, but rather the trial court’s written findings of fact and conclusions of law were its judgment). See generally 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2781 (1995) (stating that Rule 58 was so written “to eliminate uncertainty as to whether and when a judgment has been rendered and entered”) (emphasis added). Under federal procedural law, the “rendition” of the original summary judgment for ARCO occurred on June 25, 1984, and thus the district court correctly held that ARCO met the ten-year Michigan statute of limitations in the instant case.

D. Michigan law.

Though the Michigan cases appear to conflict somewhat on the matter of when a judgment is “rendered,” we believe that the outcome of this case would actually be the same under Michigan law. Admittedly, a number of Michigan cases lend apparent support to the defendants’ proposition that a judgment is “rendered” when a judge orally pronounces it in court. For example, in Ex parte Lewis, 335 Mich. 640, 56 N.W.2d 211, 213 (1953), the Michigan Supreme Court quoted at length from an old case, Blickle v. Higbee, 211 Mich. 216, 178 N.W. 680, 683 (1920), in drawing a distinction between the “rendition” of a judgment and its “entry”:

The judgment, therefore, is considered as having been rendered when the court has pronounced the decree which finally determines the rights of the parties and nothing remains to be done but for the clerk to record the entry of the judgment. The judgment itself is not what may be entered, but is that which is considered and delivered by the court. Even if the judgment may be proven only by the record, yet it derives its force, not from its entry on the record, but from its rendition by the court.

See also Tiedman v. Tiedman, 400 Mich. 571, 255 N.W.2d 632, 635 (1977) (stating, in dicta, that a judgment of divorce may be made effective immediately by a judge’s oral statement that includes all the pertinent terms of the divorce); McClure v. H.K Porter Co., 174 Mich.App. 499, 436 N.W.2d 677, 679-80 (1988) (per curiam) (holding that a trial court’s “oral ruling was clearly meant to have immediate effect,” and not to be effective only when written and entered); Norton Shores v. Carr, 59 Mich.App. 561, 229 N.W.2d 848, 849 (1975) (“[A]s a general rule, a judgment made orally by the trial court is. complete when it is pronounced and does not depend upon entry by the clerk.”). See generally Black’s Law Dictionary 1296 (6th ed. 1990) (“Rendition of a judgment is effected when the trial court in open court declares the decision of the law upon the matters at issue, and it is distinguishable from ‘entry of judgment,’ which is a purely ministerial act by which the judgment is made of record and preserved.”).

There are also, however, even more numerous Michigan cases stating the “well established” rule that “courts speak through their judgments and decrees, not their oral statements or written opinions.” Tiedman, 255 N.W.2d at 634. The Tiedman court actually held that “where it is contemplated that a judge’s oral statement, that a divorce is or will be granted, will be followed by the signing of a judgment, the divorce and property settlement do not become effective until the judgment is signed and cannot be made effective nunc pro tune after one of the parties dies.” Id. 255 N.W.2d at 633. That court also noted that reducing a judgment to writing and signing it are important acts because “until a judgment is signed the judge may change his mind and sign a different judgment.” Id. at 634. The Tiedman holding squares with LeTarte v. Malotke, 32 Mich.App. 289, 188 N.W.2d 673, 675-76 (1971), which expressly held that the oral statements of a trial judge did not constitute the rendition of a judgment of divorce because those statements were prospective in nature and did not completely settle the division of property between the couple. Accord Heck v. Bailey, 204 Mich. 54, 169 N.W. 940, 941 (1918); Stackhouse v. Stackhouse, 193 Mich.App. 437, 484 N.W.2d 723, 725 (1992); People v. Turner, 181 Mich.App. 680, 449 N.W.2d 680, 681-82 (1989) (per curiam); Hall v. Fortino, 158 Mich.App. 663, 405 N.W.2d 106, 108 (1986); People v. Stackpoole, 144 Mich.App. 291, 375 N.W.2d 419, 423 (1985); see also Department of Treasury v. Central Wayne County Sanitation Auth., 186 Mich.App. 58, 463 N.W.2d 120, 123-24 (1990) (per curiam) (holding that a claim for interest on a money judgment “did not accrue until the judgment was rendered,” which was the date on which the trial court issued its order). This confusion in the Michigan cases has not gone unnoticed. Bercheny v. Johnson, 481 F.Supp. 1165, 1169 n. 5 (E.D.Mich.1979) (noting that Michigan’s cases on the need for a written order are “somewhat confusing”), rev’d on other grounds, 633 F.2d 473 (6th Cir.1980).

The defendants contend that the court rendered its judgment on June 4, 1984, because of the combination of (1) the Michigan courts’ recognition of a distinction between the “rendition” and the “entry” of a judgment; (2) the plain language of the statute of limitations, which requires only a “rendition”; and (3) the district court’s use, in its written order, of June 4 as an interest accrual date. The defendants admitted at oral argument, however, that ARCO could not have executed and collected upon the oral “rendition” of a judgment which it allegedly received on June 4. Moreover, the defendants’ argument that a court can “render” a judgment for statute of limitations purposes orally on one day, then “render” it again for all other purposes (such as calculation of time for posttrial motions and appeals) is, we believe, without merit under Michigan law.

Michigan Court Rule 2.602, which was in effect throughout the entire course of the proceedings below, states that “all judgments and orders must be in writing, signed by the court and dated with the date they are signed.” This court has previously held that, under Michigan law, a Michigan Court Rule controls where it conflicts with a state statute. Abick v. Michigan, 803 F.2d 874, 878 (6th Cir.1986) (citing Buscaino v. Rhodes, 385 Mich. 474, 189 N.W.2d 202, 204-06 (1971) and Perin v. Peuler, 373 Mich. 531, 130 N.W.2d 4, 10 (1964)). Under Abick, to the extent that Michigan Court Rule 2.602 conflicts with the language in the Michigan statute of limitations about the “rendition” of a judgment, the rule would control, and so a judgment could not be “rendered” unless it had been written, signed and dated in compliance with the court rule. Thus, had ARCO brought this judgment renewal action in a Michigan state court, we believe that the Michigan court would not have held that the action was barred on statute of limitations grounds. There is ample support in both the Michigan cases and in Michigan’s court rules for the proposition that Michigan courts, as a general rule, “render” their judgments when they write them, and not when they pronounce their decisions in open court.

Moreover, even those Michigan cases which appear to have deemed a judgment “rendered” when it was pronounced from the bench contemplated an oral rendition “which finally determines the rights of the parties,” Lewis, 56 N.W.2d at 213 (quoting Blickle, 178 N.W. at 683), or which “was clearly meant to have immediate effect,” McClure, 436 N.W.2d at 679. No such oral rendition occurred here. Rather, the district court stated on June 4, 1984, that it would grant ARCO’s motion for summary judgment, and that it would hold another hearing if the parties could not agree on the precise amount of damages. While this pronouncement may have settled the defendants’ liability as a general matter, it certainly did not “finally determine” the rights of the parties, and it was obviously not meant to have immediate effect. The district court did not finally determine the parties’ rights until it issued and entered its written order on June 25, 1984, which specified the damages and attorney’s fees that the defendants owed to ARCO. Thus, this case is analogous to the LeTarte divorce case, 188 N.W.2d at 675-76, in which the Michigan Court of Appeals held that a trial court’s oral statements did not “constitute the rendition of a judgment,” because (1) those statements were “prospective only,” and (2) the parties in that case had agreed to “only the basic elements” of a property settlement, leaving some work still to be done. Such was similarly the case when the court below stated, on June 4,1984, that it would grant summary judgment to ARCO.

III. CONCLUSION

As indicated above, we hold that under federal procedural law, the district court originally “rendered” summary judgment to ARCO on June 25,1984. We believe, however, that the applicable rule and the outcome of this case would be the same under Michigan law.

The applicable Michigan statute of limitations in this case requires that a person “commence! ]” an action within ten years of the “rendition” of the court’s judgment. Mich.Comp.Laws Ann. § 600.5809 (West 1987). An action is “commenced” under both the Federal Rules and the Michigan Court Rules when a complaint is filed with the court. Fed.R.Civ.P. 3, Mich.Ct.R. 2.101(B). Thus, we find that ARCO “commenced” this judgment renewal action within the statutory time period, because it filed its complaint within ten years of the district court’s original “rendition” of summary judgment for ARCO, and we AFFIRM the decision of the district court.

      . This rule provides, in pertinent part: “Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).” Fed.R.Civ.P. 58. Rule 79(a), in turn, provides (among other things) that the district court must keep a civil docket that shows the nature of all entries and the dates on which orders or judgments are entered.

      . United States v. Indrelunas, 411 U.S. 216, 221-22, 93 S.Ct. 1562, 1564-65, 36 L.Ed.2d 202 (1973) (per curiam). But cf. Bankers Trust Co. v. Mallis, 435 U.S. 381, 386, 98 S.Ct. 1117, 1120-21, 55 L.Ed.2d 357 (1978) (per curiam) (holding that lack of a separate judgment does not preclude the taking of an appeal from a district court’s final decision, because the parties may waive the separate judgment requirement "where one has accidentally not been entered").

      . Sibbach v. Wilson & Co., 312 U.S. 1, 13, 61 S.Ct. 422, 426, 85 L.Ed. 479 (1941). See generally 12 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3012 (1973 & Supp.1996) (explaining what law governs in procedures to enforce judgments).

      . Presumably, the Michigan Legislature was aware of this confusion when it chose to use the word "rendition” in the statute of limitations.

      . This rule is clearly analogous to, although not identical to, Federal Rule of Civil Procedure 58.

      . Furthermore, under this same body of Michigan law, we must reject the defendants’ assertion that ARCO failed to timely "commence" the instant renewal action (and toE the statute of limitations) because of aUegedly improper service of process by someone not an "officer” for pin-poses of the Michigan tolling statute, Mich. Comp.Laws Aim. § 600.5856(c) (West Supp. 1995). Michigan Court Rule 2.101(B) and Federal Rule of Civil Procedure 3 both state that an action is "commenced" when a complaint is filed with the court, and that rule controls insofar as it conflicts with the toEing statute. See Buscaino, 189 N.W.2d at 205-06 (holding that a complaint filed within three years of an accident complied with the Michigan Court Rules and was not barred by the statute of limitations, even though service was made more than three years after the accident).


source: Caselaw Access Project

author: MILBURN, Circuit Judge.

license: Public Domain

text:
    J.Z.G. RESOURCES, INC., Plaintiff-Appellant, v. SHELBY INSURANCE COMPANY, Defendant-Appellee.
    No. 95-3237.
    United States Court of Appeals, Sixth Circuit.
    Argued April 12, 1996.
    Decided May 28, 1996.
    Marvin L. Karp (argued and briefed), Ul-mer & Bernr, Cleveland, OH, for Plaintiff-Appellant.
    Thomas Schick (argued and briefed), McNeal, Schick, Archibald & Biro, Cleveland, OH, for Defendant-Appellee.
    Before: MERRITT, Chief Judge; MILBURN, Circuit Judge; ZATKOFF, District Judge.

       The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting by designation.

   MILBURN, Circuit Judge.

Plaintiff J.Z.G. Resources, Inc. appeals the district court’s, grant of summary judgment in favor of defendant Shelby Insurance Company in this action to recover, under a general liability insurance policy issued by defendant, for property damage sustained by plaintiff that was caused by defendant’s insured. On appeal, the issue is whether the district court erred in granting summary judgment in favor of defendant on the ground that a prior action between the parties in New York precluded plaintiffs present action. For the reasons that follow, we affirm.

I.

A.

Plaintiff J.Z.G. Resources, Inc. (“J.Z.G.”) is a residential real estate development company that owned a development known as Peach Brook Farms in the Town of Southeast, New York. In April 1988, plaintiff entered into a contract with Edward E. King (“King”), a general contractor, under which King agreed to install three roads and storm drainage facilities in Peach Brook Farms.

Pursuant to his contract with J.Z.G., King obtained a comprehensive general liability insurance policy, which included products-completed operations hazard (“PCOH”) coverage, from defendant Shelby Insurance Company (“Shelby”). The policy that King purchased from Shelby covered the period from July 30,1988 to July 30,1989.

The policy protected against bodily injury and property damage for which King, the insured, became liable to third parties. The policy defined property damage as follows:

a. Physical injury to tangible property, including all resulting loss of use of that property; or
b. Loss of use of tangible property that is not physically injured.

J.A 25. The policy further required that property damage be caused by “an occurrence,” and it defined an occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Id. The policy excluded coverage, however, for property that was required to be restored, repaired, or replaced because King’s work was incorrectly performed on it, but this exclusion did not apply to property damage included in the PCOH coverage. The PCOH coverage extended to property damage occurring away from premises that King owned or rented and arising out of King’s work, provided that the work had been completed or abandoned.

In the spring of 1989, J.Z.G. discovered that King had negligently and improperly installed the roads. One road was not properly located, and the elevation and grade of the other two were incorrect. Because of these defects, the Town of Southeast ordered that the roads be repaired or replaced. Also due to the faulty workmanship, the storm drainage system did not operate properly, resulting in damage to lots belonging to both plaintiff J.Z.G. and others. Subsequently, J.Z.G. made demand on King and Shelby to correct the defective work and/or pay plaintiff for its damages, but both parties refused.

B.

On April 3, 1990, plaintiff J.Z.G. filed a diversity action in the United States District Court for the Southern District of New York (“the New York action”) against Edward E. King and Shelby Insurance Company. J.Z.G. alleged breach of contract and negligence against King and breach of insurance contract against Shelby. In its complaint, plaintiff alleged not only the damages to the road but also the ensuing damages to other property. See J.A. 54-55.

Prior to trial in the New York action, plaintiff filed a motion in limine, seeking to preclude Shelby from raising certain exclusions in the policy issued to King as defenses at trial. The court ruled that Shelby had abandoned all but two of the exclusions and that it would “not consider those other exclusions in the trial of [the] action.” J.A. 20. In December 1991, the New York action was tried without a jury. On the basis of the court’s ruling in limine, J.Z.G. apparently chose not to submit any evidence of damage to its own property or the property of others and sought only to recover for damage to the roads. On December 30, 1991, the New York court issued findings of fact and conclusions of law. It entered judgment against Shelby and King on January 22, 1992, in the amounts of $300,000 and $400,000, respectively. It found King liable only for the costs of road reconstruction and replacement.

Shelby and King appealed the judgments against them to the United States Court of Appeals for the Second Circuit. J.Z.G. cross-appealed the limitation of Shelby’s damages and the district court’s denial of prejudgment interest. The Second Circuit affirmed the district court’s judgment in all respects except regarding the liability of Shelby to J.Z.G. See J.Z.G. Resources, Inc. v. King, 987 F.2d 98 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 558, 126 L.Ed.2d 454 (1993). It held that King’s policy did not provide coverage for repair of the faulty roads that King constructed, which were the only damages J.Z.G. attempted to prove. Therefore, Shelby was “not liable to J.Z.G. for the judgment entered in favor of J.Z.G. against King.” J.A. 28. Subsequently, J.Z.G. petitioned the Second Circuit for rehearing, and its petition was denied. Then, it petitioned the United States Supreme Court for a writ of certiorari, which also was denied.

On March 29, 1994, J.Z.G. filed this action, alleging that the order in limine issued in the New York action had relieved it of the burden of proving damages to property other than the roads and that it deserved a second opportunity to prove damages to other property. On August 15, 1994, defendant Shelby moved for summary judgment on the ground that J.Z.G. had not been limited in its proof of damages to other property in the New York action and that J.Z.G.’s instant action was barred by collateral estoppel and res judicata.

On December 19, 1994, the district court granted Shelby’s motion for summary judgment. It found that the New York court’s order in limine had not relieved J.Z.G. of the burden of producing evidence on its claim regarding damages to other property, that J.Z.G. had not produced such evidence, and that J.Z.G. was precluded from relitigating the issue. J.Z.G. moved the district court for reconsideration, which was denied on January 27, 1995. This timely appeal followed.

II.

Plaintiff J.Z.G. appeals the district court’s grant of summary judgment in favor of defendant Shelby. We review a district court’s grant of summary judgment de novo. Harrow Prods., Inc. v. Liberty Mut. Ins. Co., 64 F.3d 1015, 1019 (6th Cir.1995). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving parly is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); accord, Harrow Prods., Inc., 64 F.3d at 1019.

The district court ruled that plaintiffs present suit is precluded by the New York action. We first address the choice of law question that defines the framework of our review of the district court’s judgment. We must decide whether in a federal diversity action, federal or state law governs the preclusive effect of a prior federal diversity judgment. The Restatement (Second) of Judgments states that “[f]ederal law determines the effects under the rules of res judicata of a judgment of a federal court,” making no distinction between a federal judgment based on federal question or diversity jurisdiction. Restatement (Second) of Judgments § 87 (1982).

Although this circuit has not ruled on the precise circumstance that this case presents, in Silcox v. United Trucking Serv. Inc., 687 F.2d 848, 852 (6th Cir.1982), we addressed whether a district court could issue an injunction restraining an appellant from proceeding in state court on a claim for attorney’s fees when the issue had been adversely decided in a prior diversity action in the district court. We noted in Silcox “that the scope and effect of a district court judgment in a diversity action is to be determined by federal, not state, law....” Id. at 852 (citing Cemer v. Marathon Oil Co., 583 F.2d 830, 832 (6th Cir.1978)). We went on to apply federal res judicata rules in that case.

Although the procedural posture of this case is slightly different, the same principles apply. As the Second Circuit stated in Kern v. Hettinger, 303 F.2d 333 (2d Cir.1962):

One of the strongest policies a court can have is that of determining the scope of its own judgments. It would be destructive to the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity.

Id. at 340 (citations omitted). Therefore, we shall apply federal res judicata principles in successive federal diversity actions. See also, e.g., Johnson v. SCA Disposal Servs. of New England, Inc., 931 F.2d 970, 974 (1st Cir.1991); Shoup v. Bell & Howell Co., 872 F.2d 1178, 1179 (4th Cir.1989); Smith v. Safeco Ins. Co., 863 F.2d 403, 404 (5th Cir.1989) (per curiam); Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329, 1332-33 (10th Cir.1988); Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1503 (11th Cir.1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 966, 83 L.Ed.2d 970 (1985).

The rules of res judicata, actually comprise two doctrines concerning the preclusive effect of a prior adjudication, claim preclusion and issue preclusion. The general rule of claim preclusion, or true res judicata, is that a valid and final judgment on a claim precludes a second action on that claim or any part of it. Claim preclusion applies not only to bar the parties from relitigating issues that were actually litigated but also to bar them from relitigating issues that could have been raised in an earlier action. Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948); Liona Corp. v. PCH Assocs. (In re PCH Assocs.), 949 F.2d 585, 594 (2d Cir.1991); Westwood Chem. Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981).

Although the precise basis of its ruling is unclear, the district court stated:

Plaintiffs argument [that the precise issue raised in this ease was not actually litigated in the prior proceeding] misses the mark. JZG asserts that it never litigated Shelby’s liability for damages to other property in the New York action and that, therefore, it .is virtually automatically entitled to seek such damages in this separate action.
JZG ignores the fact that a plaintiff always carries the burden of proof on both liability and damages. Plaintiff is precluded “from advancing in a new action all claims or defenses that were or could have been raised in a prior proceeding in which the same parties or their privies were involved, and that resulted in a judgment on the merits.” In re PCH Associates, 949 F.2d 585, 594 (2d Cir.1991) (emphasis added). In the New York action, plaintiff made the tactical error of failing to at least proffer evidence of damage to property. Plaintiffs presentation of evidence at trial is not governed by the defenses that will be advanced. ... The fact that the trial court has ruled that certain defenses shall not be permitted does not necessarily affect plaintiffs case in chief.

JJL 983-84. The district court ruled that “the issue raised in the instant case was alleged in the complaint in the New York action, even though plaintiff ultimately did not present evidence to that court on the issue.” J.A. 985. Therefore, the court concluded that plaintiff was “precluded from re-litigating the same issue here.” Id.

Plaintiff argues that the district court’s ruling is erroneous because res judicata does not preclude relitigation of an issue raised in the pleadings but withheld from consideration at trial. It contends that because Shelby never asserted the defense that the policy did not cover King’s liability for the cost of repairing roads and because the New York district court’s order in limine limited the defenses Shelby could raise, it became unnecessary for plaintiff to present evidence of damage to other property.

To support its contention that res judicata does not prevent relitigation of an issue that has been withdrawn, plaintiff cites cases from the Minnesota, Illinois, and Missouri Supreme Courts. See Karas v. Snell, 11 Ill.2d 233, 142 N.E.2d 46 (1957); Nelson v. Dorr, 239 Minn. 423, 58 N.W.2d 876 (1953); Hart-Bartlett-Sturtevant Grain Co. v. Aetna Ins. Co., 365 Mo. 1134, 293 S.W.2d 913 (1956), cert. denied, 352 U.S. 1016, 77 S.Ct. 562, 1 L.Ed.2d 548 (1957). However, as we previously stated, federal principles of res judicata govern this case, and plaintiff has not cited any federal eases that adopt this rule. Furthermore, the cases that plaintiff cites present distinguishable factual scenarios. In those cases, an affirmative act on the part of the first court removed the issue or claim from consideration. Conversely, in this ease, we find nothing in the New York district court’s ruling on plaintiffs motion in limine that precluded plaintiff from presenting evidence of damage to property other than the roads. Instead, it appears that plaintiff decided to present only evidence relating to the cost of road repair based on the defenses that defendant Shelby would assert.

The Restatement (Second) of Judgments describes the doctrine of res judicata as extinguishing “all rights of the plaintiff to remedies against the defendant with respect to all or any part or the transaction, or series of connected transactions, out of which the action arose.” Restatement (Second) Judgments § 24 (1982). In its brief, plaintiff acknowledges that had it recovered for and repaired the damage to the roads, the damage to other property would have been obviated. Brief of Plaintiff at 6, 12. It is clear that both types of damage arise out of the same transaction and that plaintiff could have presented evidence of damage to other property as an alternate ground for recovery. Therefore, we conclude that the district court correctly ruled that plaintiffs present action is precluded on the basis of res judicata. Based on this determination, we find it unnecessary to address the parties’ arguments regarding collateral estoppel.

III.

For the reasons stated, the summary judgment of the district court is AFFIRMED.

      . J.Z.G. also sued C. James Osborne, Jr., R.L.S., P.C., but the district court ultimately dismissed the claims against Osborne for reasons not relevant to this action.


author: BOGGS, Circuit Judge.

text:
    Anton IVEZAJ and Ljena Doljevic, Petitioners-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
    No. 94-3898.
    United States Court of Appeals, Sixth Circuit.
    Submitted Oct. 3, 1995.
    Decided May 28, 1996.

      George P. Mann (briefed), Farmington Hills, MI, for Petitioners.
    Norah Ascoli Schwarz, Pauline C. Terre-longe (briefed), U.S. Department of Justice, Immigration Litigation, Civil Division, Washington, DC, Edmund A Sargus, Jr., U.S. Attorney, Office of the U.S. Attorney, Columbus, OH, for Respondent.
    Before: JONES and BOGGS, Circuit Judges; and COFFMAN, District Judge.

       The Honorable Jennifer B. Coffman, United States District Judge for the Eastern and Western Districts of Kentucky, sitting by designation.

   BOGGS, Circuit Judge.

Anton Ivezaj and Ljena Doljevic, husband and wife, appeal from a determination by the Board of Immigration Appeals (BIA) that the couple is not entitled to asylum or withholding of deportation. The BIA had affirmed the decision of an Immigration Judge (IJ) who granted Ivezaj and Doljevic the privilege of voluntary departure after denying their application for asylum and withholding of deportation. For the reasons given below, we affirm the BIA’s decision.

I.

Anton Ivezaj, age 29, and Ljena Doljevic, age 23, were citizens of the former Yugoslavia when they departed from Yugoslavia on January 18, 1987, bound for Mexico City. The couple crossed into California near Tijuana, and then flew directly to Detroit, where they were eventually discovered by agents of the Immigration and Naturalization Service (INS).

Ivezaj and Doljevic are Roman Catholics of Albanian descent. They lived in the Yugoslav republic of Montenegro, which is still part of the remaining Yugoslav federation. Montenegro is in southern Yugoslavia, north of Albania, northwest of the former Yugoslavian republic of Macedonia and west of the Kosovo region in Serbia. Serbia is the core of what remains of the Yugoslav federation. Ethnic and religious conflicts underlying the war raging in Bosnia-Herzegovina had threatened to spill into the two former Yugoslav republics that have large numbers of ethnic Albanians: Montenegro and Macedonia. Kosovo is a region where the Serbs lost a major battle to invading Turks 600 years ago, and is viewed by Serbs as the birthplace of Serb national identity. Land of the South Slavs, Nat’l Geographic, Aug. 1990, at 106. However, Kosovo’s population is now 90% Albanian and only 10% Serb. Christine Spolar, Kosovo’s Albanians Assert Nationalism; Serbian Leaders Vow to Retain Control, Wash. Post, Dec. 29,1992, at A10. Muslim Albanians in Kosovo have been subjected to horrible persecution by the Serbs — they have been killed, beaten, raped, tortured, and politically oppressed. Dep’t of State, 103d Cong., 2d Sess., Country Reports on Human Rights Practices for 1993 1038-45 (J.Comm. Print 1994). Repression of Albanians ' in Montenegro does not appear to be as great, although it exists. Id. at 1038-39. The Serbian persecution of Montenegrins also focuses on Muslims. Id. at 1040-11. There is no evidence of persecution of Catholics in Montenegro, although the Serbs, who are Orthodox, have persecuted Hungarian and Croatian Catholics in Vojvodina, another region in the former Yugoslavia. Id. at 1046.

Before coining to the United States, Ivezaj and Doljevic lived in the mountains of Montenegro on a farm. Some of their reason for coming to the United States were economic — Ivezaj’s father is a legal resident of the United States, who had told, them of the economic opportunities available here. There is no evidence that Ivezaj or Doljevic were ever persecuted in Montenegro. They do not belong to any political groups. Ive-zaj’s brother, however, had once been jailed overnight by the Serbian Secret Police for discussing the political situation in Kosovo. It is unclear from the record, but it seems as if one of Ivezaj’s cousins had a friend in the Secret Police who prevailed upon that organization to release Ivezaj’s brother.

Ivezaj and Doljevic were the equivalent of common law husband and wife in Montenegro. They simply began living together in Montenegro and consummated their marriage. They failed to register it, however, because they refused to take a communist loyalty oath that was required at the time. They also feared getting married in a church. They allege no facts sufficient to support any claim that their fear of a communist loyalty oath has any current significance.

On May 21, 1990, the INS issued a show cause order as to why Ivezaj and Doljevic, who were now living in Detroit, should not be deported. Ivezaj and Doljevic conceded de-portability, but requested asylum. Requests for asylum are also deemed requests for withholding of deportation under 8 U.S.C § 1253(h) and 8 C.F.R. § 208.3(b). An IJ at the INS conducted telephonic hearings on July 10, 1990 and September 18, 1990 to determine whether Ivezaj’s and Doljevic’s requests for asylum or withholding of deportation should be granted. The IJ issued an oral decision on October 25, 1990, denying the request both for asylum and for withholding of deportation.

Ivezaj and Doljevic appealed the adverse determination of the IJ to the BIA, but the BIA affirmed its IJ’s decision by order on July 25,1994. The long delay was apparently the result of Ivezaj’s and Doljevic’s lack of diligence in pressing their appeal.

II.

Ivezaj and Doljevic claim that the IJ treated them unfairly in the hearing. They allege the IJ was abrupt because he immediately asked the government attorney to state the gravamen of Ivezaj’s and Doljevic’s arguments for asylum and withholding of deportation, in order to cut to the heart of the matter. They argue the IJ intimidated them by asking yes-or-no questions and cutting them off, making the entire hearing last only 30 minutes. They point to the IJ’s statement that he would include newspaper clippings about persecution in Yugoslavia that Ivezaj and Doljevic wanted to enter into the record “for whatever it’s worth.” They argue these facts lead to the inference that the IJ had already prejudged their case before the hearing had concluded.

Ivezaj’s and Doljevic’s appeal of the BIA’s determination raises five issues: (1) whether this court can take judicial notice of changed conditions in the former Yugoslavia; (2) whether Ivezaj and Doljevic failed to exhaust their administrative remedies, thus barring this appeal; (3) whether Ivezaj’s and Doljevic’s due process rights were violated by the manner in which the IJ conducted their deportation hearings; (4) whether there is substantial evidence to support the BIA’s determination that Ivezaj and Doljevic were not entitled to withholding of deportation; and (5) whether there is substantial evidence to support the BIA’s determination that Ivezaj and Doljevic were not entitled to asylum because of a well-founded fear of persecution. We have exclusive jurisdiction under 8 U.S.C. § 1105a(a). We hold that we may take judicial notice of changed conditions in Yugoslavia, that Ivezaj and Doljevic did exhaust their administrative remedies, that substantial evidence supports the BIA determination, and that Ivezaj’s and Doljevic’s due process rights were not violated. We therefore affirm the BIA’s decision.

III. JUDICIAL NOTICE

Ivezaj and Doljevic ask this court to take judicial notice of the material in their briefs appendices, even though the material therein is not part of the record on appeal. The government resists the consideration of such material, citing 8 U.S.C. § 1105a(a)(4), which states that “the petition shall be determined solely upon the administrative record upon which deportation is based_” This statutory provision cannot be interpreted to bar this court from taking judicial notice of changed conditions in a foreign country, however. Cf Fed.R.Evid. 201 (allowing a court to take judicial notice of facts “not subject to reasonable dispute”; subsection (f) allows judicial notice to occur at any stage of a proceeding); Fed.R.Evid. 1101(a) (stating that the Federal Rules of Evidence govern the courts of appeals). For proper applications of § 1105a(a)(4), see Hazime v. INS, 17 F.3d 136, 138 n. 1 (6th Cir.), cert. denied,-U.S. -, 115 S.Ct. 331, 130 L.Ed.2d 289 (1994) (§ 1105a(a)(4) precluded alien from claiming on appeal that he did not have a brother in Lebanon when he testified to the contrary before the BIA); Yaldo v. INS, 424 F.2d 501, 503 (6th Cir.1970) (argument that alien’s ex-wife was biased against him was not properly directed to the court under § 1105a(a)(4), because this was initially a question for the INS’s Special Inquiry Officer (SIO)).

The Sixth Circuit consistently takes judicial notice of changed political circumstances in immigration cases. Palushaj v. INS, 25 F.3d 1049, 1994 WL 198169, at *2 (6th Cir. 1994) (unpublished) (taking judicial notice of the persecution of ethnic Albanians in Kosovo); Ivezaj v. INS, 940 F.2d 660, 1991 WL 151157, at *2 (6th Cir.1991) (unpublished) (same) [Anton Ivezaj does not appear to be a relation to this case’s Marko Ivezaj]; Dalou v. INS, 914 F.2d 1494, 1990 WL 140540 (6th Cir.1990) (unpublished per curiam) (taking judicial notice of “recent events unfolding in Iraq and the adjacent Arabian peninsula region”); Dawood-Haio v. INS, 800 F.2d 90, 91 (6th Cir.1986) (taking judicial notice of the Iran-Iraq war). But see Dokic v. INS, 999 F.2d 539, 1993 WL 265166, at *5 n. 3 (6th Cir.1993) (unpublished per curiam) (refusing to take judicial notice of Amnesty International Reports and newspaper articles “regarding the tense political situation in Yugoslavia which were not part of the administrative record,” on the basis of § 1105a(a)(4), although indicating that consideration of these materials would not have influenced the panel’s decision). The government’s argument that the persecution of Albanians by Serbs should be ignored by this court is thus rejected.

IV. EXHAUSTION

The INS argues that this court has no jurisdiction over this appeal because Ivezaj and Doljevie have failed to exhaust their administrative remedies, citing Dokic v. INS, 899 F.2d 530, 532 (6th Cir.1990) (per curiam) (holding that the failure to file a motion to reopen a case before the BIA constituted a failure to exhaust administrative remedies). It is undisputed that Ivezaj and Doljevie have not filed such a motion to reopen. Under 8 C.F.R. § 3.2 the BIA is given the power to reopen deportation proceedings in certain circumstances. This regulation has features that make it inappropriate as the basis for imposing an administrative exhaustion requirement, however. Section 3.2 gives the BIA the power to reopen any case sua sponte, in addition to considering motions to reopen by the aliens in question. Furthermore, it seems to permit an alien to file repeated motions for reconsideration. Because of these two features, it would be strange to construe § 3.2 as creating a barrier to judicial review if not invoked. It will always be true that a case could be reopened by the BIA, either on its own initiative, or in response to a motion made by the alien. We hold § 3.2 does not create an exhaustion requirement. Once the BIA has rendered a decision, an appeal to this Court is proper.

Another panel of the Sixth Circuit has distinguished Dokic. In Perkovic v. INS, 33 F.3d 615, 620 n. 4 (6th Cir.1994), we held that jurisdiction over the Perkovics’ appeal was proper, despite the fact that the Perkovics had failed to appeal from an IJ determination that they were deportable, after a remand from the BIA directing the IJ to deport them. Even though the Dokic court did not remand the case to the BIA, .but simply stayed the appeal to give Dokic an opportunity to file a motion to reopen with the BIA, Perkovic distinguished Dokic on the grounds that exhaustion was not found in Dokic because Dokic was making a due process argument not previously raised with the BIA, and so, by holding Dokic’s appeal was barred by the exhaustion doctrine, the Dokic court was really insisting that appellate issues must be raised below. Cf. Foster v. Barilow, 6 F.3d 405, 408 (6th Cir.1993) (“This court is not compelled to hear, nor should it hear, an issue not presented to the district court unless reaching that issue serves an overarching purpose beyond that of arriving at the correct result in an individual case.”). Ivezaj and Doljevie are not raising any new legal issues that were not brought before the BIA Thus,, there is no need for the BIA to supplement the administrative record before we can hear this appeal. Ivezaj and Doljevie present new evidence about the deteriorating condition of affairs in Montenegro, but it is apparent from the BIA’s order that the presentation of any facts of this nature will be insufficient, in its view, to warrant reopening proceedings, because it thinks that Ivezaj and Doljevie have failed to show any likelihood that they will be singled out for persecution. Thus, under Perkovic’s reading of Dokic, applying the exhaustion doctrine here is inappropriate.

In addition, neither Dokic nor Perkovic adverted to 8 C.F.R. § 3.1(d)(2), which establishes that “[t]he decision of the Board shall be final except in those cases reviewed by the Attorney General_” See Burman v. INS, 32 F.3d 569, 1994 WL 378354, at *2 (6th Cir.1994) (unpublished per curiam) (noting that § 3.1(d)(2) makes the decisions of the BIA final and reviewable by the courts of appeals). The Attorney General did not review the BIA’s determination here. Section 3.2 gives the BIA the capability to reopen or reconsider a case, but that capability does not alter the finality of its decisions under § 3.1(d)(2). Ivezaj’s and Doljevic’s appeal is thus not barred by a failure to petition the INS to reopen their case under § 3.2.

V. DUE PROCESS

The Sixth Circuit has not adopted a standard of review for an alleged due process violation based on an IJ’s manner of conducting a deportation hearing. We agree with the Ninth Circuit that the standard of review should be de novo. Hartooni v. INS, 21 F.3d 336, 339 (9th Cir.1994). The BIA ruled that the IJ’s manner of conducting Ivezaj’s and Doljevic’s deportation hearings satisfied the requirements of due process.

A review of the transcript of the hearings conducted by the IJ shows no basis for the claim that the IJ violated Ivezaj’s and Doljevic’s due process rights. By forcing Ivezaj’s and Doljevie’s counsel to get to the point, the IJ did no more than exercise his quasi-judicial powers to control the pace of the hearings, and to focus the hearings on relevant matters. That an IJ possesses such limited inherent powers to control the conduct of a hearing is implicit in 8 C.F.R. § 242.17(c)(4)(ii) (establishing procedural requirements for evidentiary hearings concerning applications for asylum and withholding of deportation): “[njothing in this section is intended to limit the authority of the Immigration Judge properly to control the scope of any evidentiary hearing.”

Moreover, due process requires that Ivezaj and Doljevie be given an opportunity to be heard, but that opportunity need not be “upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the ease upon which such officers are required to act.” Hammond v. INS, 47 F.3d 1168, 1995 WL 63167, at *1 (6th Cir.1995) (quoting Japanese Immigrant Case, 189 U.S. 86, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721 (1903)).

There is no evidence in the record that the IJ was overly abrupt or intimidated Ivezaj and Doljevie; but even assuming such evidence existed, Ivezaj and Doljevie have no right not to have their feelings hurt by a “no nonsense” IJ. The IJ’s statement that he would include newspaper clippings about persecution in Yugoslavia that Ivezaj and Dol-jevic wanted to enter into the record “for whatever it’s worth” is not evidence of the IJ prejudging this ease. At the point in the hearing that this remark was made, the IJ had heard enough evidence to suggest that Ivezaj and Doljevie had probably not proved their case; the contents of the articles about conditions in Yugoslavia would not show that the couple would be singled out for persecution if they returned to Montenegro. See DeLucia v. INS, 370 F.2d 305, 308-09 (7th Cir.), cert. denied, 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 784 (1967) (INS SIO had not prejudged case because other government officials called the alien a “racketeer” and a “kingpin of vice,” and because the SIO might have read such negative publicity about the alien).

VI. WITHHOLDING OF DEPORTATION

The standard of review in appeals from BIA orders is whether substantial evidence supports the determination made by the BIA. 8 U.S.C. § 1105a(a)(4); Yaldo, 424 F.2d at 503. “All the substantial evidence standard requires is that the BIA’s conclusion, based on the evidence presented, be substantially reasonable.” Klawitter v. INS, 970 F.2d 149, 151 (6th Cir.1992) (quoting Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986)).

To show an entitlement to withholding of deportation under 8 U.S.C. § 1253(h), Ivezaj and Doljevic must demonstrate that there is a clear probability they would be subject to persecution if they were to return to Montenegro. INS v. Stevic, 467 U.S. 407, 429, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984). Here, the BIA reached a substantially reasonable conclusion that Ivezaj and Doljevic did not show that it is more likely than not that they would be subjected to persecution upon returning to their native country. Ivezaj and Doljevic are Albanians from Montenegro. Albanians in Montenegro are less persecuted than those Albanians residing in Kosovo. Furthermore, Ivezaj and Doljevic are Catholic, not Muslim. All of the evidence Ivezaj and Doljevic have presented demonstrates Serb oppression of Muslims, not Catholics. Ivezaj and Doljevic belong to no political groups, and have never been jailed for political or religious activity. Ivezaj’s brother has, but for only one night. The couple’s simple allegations hardly make it more likely than not that Ivezaj or his wife will be subjected to persecution.

VII. ASYLUM AND THE WELL-FOUNDED FEAR TEST

The standard of review of Ivezaj’s and Doljevic’s claims that they are entitled to asylum is also the substantial evidence test. Klawitter, 970 F.2d at 151. The well-founded fear of persecution test for determining refugee status when an alien requests asylum is more generous than the clear probability of persecution standard for withholding of deportation. INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 1212-13, 94 L.Ed.2d 434 (1987). Cardoza-Fonseca’s well-founded fear of persecution test is a hybrid of an objective test and a subjective test. The test is not solely objective, as in Stevie’s clear probability test, but neither is it wholly subjective. The ■ potential deportee’s subjective fears must be “well-founded,” i.e., grounded in fact.

Two Sixth Circuit opinions dispose of Ivezaj’s and Doljevic’s claim to have a well-founded fear of persecution, should they return to Montenegro. Yousif v. INS, 794 F.2d 236, 244 (6th Cir.1986), holds that evidence that Chaldean Christians were persecuted in Iraq was insufficient to show a well-founded fear where the Chaldean applicant for asylum could produce no evidence that he might be singled out for persecution upon returning to Iraq. Like Ivezaj, the applicant’s brother had also been jailed briefly (for refusing to read the Koran). Cf. Dolores v. INS, 772 F.2d 223, 225 (6th Cir.1985) (quoting Dally v. INS, 744 F.2d 1191, 1195 (6th Cir.1984)) (“[n]either ‘documentary evidence, not pertaining to the applicant individually, that depicts a general lack of freedom or the probability of human rights abuses in the alien’s native land[,]’ nor the alien’s own conjecture or subjective allegations will satisfy [the clear probability] standard”).

The well-founded fear standard requires asylum-seekers to prove specific facts linking the applicant to political, ethnic, racial, or national oppression. Therefore, even if we were to assume some level of Serb persecution of Catholics in Montenegro, which Ivezaj and Doljevic have presented no evidence to show, then Ivezaj and Doljevic must show more than simple membership in such a group. Ivezaj and Doljevic have not met their burden of proof by showing, first, that any Montenegrin Catholics are being persecuted, and second, that they are Montenegrin Catholics more likely than other Montenegrin Catholics to be persecuted. See 8 C.F.R. § 208.13 (placing burden of proof on applicants for asylum).

Ivezaj and Doljevic argue that their appeal is indistinguishable from Palushaj. The Sixth Circuit remanded that case to the BIA in light of evidence about changing conditions in Yugoslavia. But Palushaj does not apply to this case for two reasons. First, Palushaj lived in Kosovo, which is undisputedly a region where more widespread persecution of Muslim Albanians is taking place. Second, and more importantly, Palushaj participated in certain political activities in Yugoslavia that aroused the attentions of the Secret Police sufficiently for him to be questioned on a number of occasions, and for his brother in Yugoslavia to write to him that the police were looking specifically for him in Yugoslavia.

VIII.

The BIA’s final order to deny Ivezaj and Doljevic withholding of deportation and asylum is supported by substantial evidence, and the BIA did not err in rejecting the couple’s claim that their deportation hearings before an IJ violated their due process rights. The BIA’s decision is therefore AFFIRMED.

      . Inclusion of this and subsequent evidence bearing on conditions in the former Yugoslavia is in dispute. See the discussion at III, below.

      . 8 C.F.R. § 1.1 (Z) establishes that the terms IJ and SIO are interchangeable.

      . 8 C.F.R. § 3.2 provides, in relevant part:
      The Board may on its own motion reopen or reconsider any case in which it has rendered a decision. Reopening or reconsideration of any case in which a decision has been made by the Board, whether requested by the Commissioner or any other duly authorized officer of the Service, or by the party affected by the decision, shall be only upon written motion to the Board....

      . An “alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.” 8 U.S.C. § 1158(a). "The term ‘refugee’ means (A) any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to ... that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion_" 8 U.S.C. § 1101(a)(42).

      . The Palushaj opinion did not note Palushaj's religion, but a review of the record of that case on appeal shows that Palushaj was also Catholic. While this similarity slightly supports Ivezaj's and Doljevic’s argument for a remand, the significant differences between this case and Palushaj tip the balance against that argument.


author: TERENCE T. EVANS, Circuit Judge.

text:
    Raul AVILA, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellee, v. Albert G. RUBIN and Van Ru Credit Corporation, Defendants-Appellants.
    Nos. 95-2881, 95-2895, 95-3905 and 95-3978.
    United States Court of Appeals, Seventh Circuit.
    Argued April 11, 1996.
    Decided May 16, 1996.

      Daniel A Edelman, J. Eric VanderArend, Michelle A Weinberg (argued), O. Randolph Bragg, Tara L. Goodwin, Cathleen C. Cohen, James O. Latturner, Edelman & Combs, Chicago, IL, Joanne Faulkner, New Haven, CT, for plaintiff-appellee in No. 95-2881.
    Daniel A Edelman, Cathleen M. Combs, Tara G. Redmond, J. Eric VanderArend, Michelle A Weinberg (argued), Edelman & Combs, Chicago, IL, Joanne Faulkner, New Haven, CT, for plaintiff-appellee in No. 95-2895.
    Daniel A Edelman, Cathleen M. Combs, Tara G. Redmond, J. Erie VanderArend, Michelle A. Weinberg (argued), O. Randolph Bragg, Edelman & Combs, Chicago, IL, Joanne Faulkner New Haven, CT, for plaintiff-appellee in No. 95-3905.
    Daniel A Edelman, J. Eric VanderArend, Michelle A. Weinberg (argued), O. Randolph Bragg, Tara L. Goodwin, Edelman & Combs, Chicago, IL, Joanne Faulkner, New Haven, CT, for plaintiff-appellee in No. 95-3978.
    George W. Spellmire, Bruce L. Carmen (argued), D. Kendall Griffith, David M. Schultz, Hinshaw & Culbertson, Chicago, IL, for defendant-appellant in No. 95-2881.
    Daniel P. Shapiro (argued), Michael J. Small, Steven A. Levy, Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Chicago, IL, for defendant-appellant in Nos. 95-2895 and 95-3905.

      George W. Spellmire, Bruce L. Carmen (argued), David M. Schultz, Hinshaw & Culbertson, Chicago, IL, for defendant-appellant in No. 95-3978.
    Before BAUER, CUDAHY, and EVANS, Circuit Judges.
   TERENCE T. EVANS, Circuit Judge.

Can a person, licensed to practice law, be in violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., for sending dunning collection letters that purport to be from an “attorney”? This is one of two interesting questions we address today in this case involving Raul Avila (and a class of similarly situated persons), the Van Ru Credit Corporation, and Albert G. Rubin, an attorney-at-law from Skokie, Illinois. As Joe Friday would say, let’s get to the facts. We will, but unlike Sergeant Friday, it won’t be “just the facts” as, we’ll mix in some observations and findings along the way.

Avila is a student loan debtor living in Connecticut. Van Ru Credit Corporation is a collection agency in Skokie, Illinois. Rubin is an Illinois attorney. Although we were told at oral argument that Rubin and the Van Ru agency are separate, they actually seem to be as closely intertwined as lovers during an embrace. Here’s the situation from which, we think, that conclusion is justified.

Rubin founded Van Ru and owns 80 percent of its corporate stock. The remainder is owned by Van Ru’s president, who is Rubin’s son. Rubin is Van Ru’s chief executive officer, draws a large salary from the company, and, until eight years ago, managed Van Ru’s day-to-day collection activities. Rubin is involved in the creation and modification of form letters, the most critical part of the debt collection operation.

In addition to his duties at Van Ru, Rubin has a law office which he calls Rubin & Associates. Rubin & Associates is located on the third floor of the “Van Ru Building.” The Van Ru Building is owned by Van Ru Credit Services, Inc., and Rubin owns 75 percent of this firm. Rubin & Associates splits the third-floor space of the building with Van Ru. Rubin & Associates is comprised of Rubin, one other attorney, and some 35 “legal assistant collectors.” The primary business of Rubin & Associates is to send form letters to delinquent debtors urging them to pay their debts and to refer the files of delinquent debtors to other attorneys for litigation. Neither Rubin nor the other attorney in his office actually litigates in Connecticut, and it is unclear (but we think doubtful) whether they litigate anywhere. Rubin & Associates receives all its business from Van Ru after Van Ru’s efforts to collect debts are unsuccessful. Van Ru pays Rubin & Associates a monthly retainer for work that Rubin & Associates does on debtor accounts.

Rubin personally maintains offices in both the Van Ru and Rubin & Associates offices. Rubin works at Van Ru around 20 hours a week and spends some 30 hours each week working at Rubin & Associates. Van Ru and Rubin & Associates use the same computer system and internal account number to identify files. Van Ru and Rubin & Associates also utilize the same automated telephone dialing system to call delinquent debtors; employees from both entities sit next to each other when using the system. Van Ru and Rubin & Associates receive mail at the same post office box. Van Ru and Rubin & Associates use the same printer for their respective form letters. The two also use the same machine to fold and process form letters in preparation for mailing. The mailing machine processes Van Ru and Rubin & Associates letters simultaneously, resulting in stacks of mixed letters ready for mailing. The letters of both Van Ru and Rubin & Associates are placed in identical envelopes. The printer and mailing machine are operated, and the letters are handled, by employees of Pegasus Data Systems, Inc., a company located at the same address as Van Ru and Rubin & Associates. Rubin owns 50 percent of Pegasus.

Although Van Ru and Rubin & Associates utilize the same computer system, Van Ru employees do not issue Rubin & Associates letters or input data into a debtor’s file after it is transferred to Rubin & Associates. Once a file is referred to Rubin & Associates, Van Ru’s employees generally do not pursue collection activities against the debtor.

Avila allegedly owes money on a student loan to Ms creditor, the Connecticut Student Loan Foundation. The foundation has a written contract with Van Ru and an oral agreement with Rubin for debt collection services. The foundation forwarded Avila’s account for collection to Van Ru via electronic data transmission. As is its practice, the foundation did not forward underlying documentation about Avila’s loan. Van Ru sent Avila two demand or “dunning” letters in an attempt to collect the debt. Avila did not respond. Van Ru then “referred” Avila’s account to Rubin & Associates. Rubin & Associates then cranked out three dunning letters to Avila on attorney letterhead in an attempt to collect the debt. The five form letters are the basis for tMs smt, filed by Avila (as a class action) against Van Ru and Rubin. Now let’s look at the letters.

The first letter (we’ll call it exMbit A), dated November 22, 1993, tells Avila that Van Ru intends to collect Ms debt. It informs Avila of Ms right to dispute the validity of the debt within 30 days. Ten days later, on December 2, 1993, Van Ru sent Avila a second letter, exhibit B, wMch demanded that Avila “commence immediate repayment of [the] loan” and threatened that “[i]f payment is not received, a civil suit may be iMtiated against you by your creditor.”

The next three letters, wMch we’ll call exMbits C, D, and E, were sent by Rubin & Associates on the following letterhead:

Albert G. Rubin, Ltd.
Attorney at Law
P.O. Box 1010
SkoMe, IL 60076-8010
1-800-766-7887

ExMbit C, dated January 4, 1994, tells Avila of Ms right to dispute or verify the debt. TMs information is immediately followed by the sentences: “If the above does not apply to you, we shall expect payment or arrangement for payment within ten (10) days from the date of this letter. If payment is not received, a civil smt may be iMtiated against you by your creditor for repayment of your loan....” ExMbit A the first letter from Van Ru, also contained tMs statement.

Exhibits D and E are letters from Rubin demanding payment from Avila and threatening a civil smt if payment is not forthcoming. ExMbits D and E do not notify Avila of a right to dispute the debt. ExMbits C through E are mass-produced collection letters “signed” with a meehamcally reproduced facsimile of the signature of attorney “Albert G. Rubin.”

Mr. Rubin reviews and approves the general form used on letters sent by Rubin & Associates. He does not, however, personally prepare, sign, or review any of the letters sent to targets, including Avila. TMs is understandable, for Rubin would probably be in the hospital with a severe case of writer’s cramp if he did because some 270,000 such letters go out each year. That, by the way, comes out to 1,062 per working day, 133 per working hour.

The letters from attorney Rubin are actually the product of a nonattomey “legal assistant collector” who directs the computer to generate a letter on Rubin’s attorney letterhead. Legal assistant collectors are provid-' ed with a training manual developed by Rubin to help them determine when an attorney debt collection letter is warranted. According to Rubin, the collectors use their “skill, judgment, and training” to determine when a letter should be sent.

Claiming that the letters, exMbits A-E, were violations of the FDCPA Avila filed tMs suit in the spring of 1994. Class certification, not challenged here, was granted, and discovery continued until the parties filed joint motions for summary judgment on liability. Avila’s motion carried the day as Rubin was held liable to the class under §§ 1692g and 1692e(3) and (9) of the FDCPA and Van Ru was found liable as well under § 1692g. Van Ru and Avila stipulated to damages of $20,000 and judgment in that amount was entered. Then, following a bench trial on the issue of statutory damages, judgment was entered for Avila against Rubin for $84,983. Rubin and Van Ru appeal.

The rules for granting summary judgment and our standard of review are well-known and need not be repeated. Suffice to say that the facts are not in dispute and only questions of law are present which we review on a clean slate.

A “validation notice” is required by law to be present in letters seeking to collect debts. FDCPA, 15 U.S.C. § 1692g. Essentially, the notice required by § 1692g must tell the target that she has 30 days to dispute the validity of all or a portion of the debt. If not disputed, the collector may assume the debt to be valid.

After some anguish, we held in Gammon v. GC Servs. Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir.1994), that claims against debt collectors under the FDCPA are to be viewed through the eyes of the “unsophisticated consumer.” We rejected what may be viewed as a somewhat lesser standard—the “least sophisticated consumer,” used by other courts. We reiterate our standard today, but we don’t want to be involved in the splitting of split hairs. Anyway it’s viewed, the standard is low, close to the bottom of the sophistication meter.

Exhibits A and C, the' first letters sent by Van Ru and Rubin, included the required 30-day debt verification notice. Both, however, followed the notice with the confusing statement we previously noted: “If the above does not apply to you, we shall expect payment or arrangement for payment to be made within ten (10) days from the date of this letter.” The letter from Van Ru followed up on this statement by telling the debtor that “[t]his will avoid additional proceedings by our firm.” The letter from Rubin followed up the statement by saying, “If payment is not received, a civil suit may be initiated against you by the creditor for repayment of your loan_”

We think that telling a debtor he has 30 days to dispute the debt and following that with a statement that “[i]f the above does not apply” you have ten days to pay up or real trouble will start is entirely inconsistent, and a failure to comply, with . the FDCPA. We think the unsophisticated consumer would be scratching his head upon receipt of such a letter. He wouldn’t have a clue as to what he was supposed to do before real trouble begins. A debt validation notice, to be valid, must be effective, and it cannot be cleverly couched in such a way as to eviscerate its message. To protect the uninformed, the naive, and the trusting—the sort of people who easily fit under the umbrella of the “unsophisticated consumer”— the notice cannot be as misleading and tricky as the one used here by Van Ru and Rubin. We think the validation notice was clearly overshadowed by the language that followed on its heels. So, like the district court, we believe that both Rubin and Van Ru are guilty of not complying with § 1692g of the FDCPA.

Before leaving this topic and moving on to the lawyering charges against Rubin, we need to address a point upon which the two defendants want to hang their hats. The defendants contend that Gammon fundamentally changed the standard for evaluating FDCPA violations. They assert that under the “unsophisticated consumer” standard, Avila must submit extrinsic evidence, such as a survey, showing that a significant proportion of his class believed that the validation notice was contradicted. For support, they cite Judge Easterbrook’s concurrence in Gammon. The letter at issue in Gammon contained a literally true statement with a possibly misleading implication. In the final paragraph of his concurrence, Judge Easter-brook suggests that on remand the plaintiff in Gammon should show that a “significant fraction” of addressees of the letter were deceived, “for if showing a handful of misled debtors were enough, we would as a practical matter be using the ‘least sophisticated consumer’ doctrine.” Gammon, 27 F.3d at 1260 (Easterbrook, J., concurring). Judge Easterbrook also suggested that trademark cases might aid the district court in determining the existence and extent of any misunderstanding flowing from the literally true statement. The defendants interpret Judge Easterbrook’s comments to mean that a heightened standard for FDCPA violations now exists in this circuit and that every FDCPA plaintiff must submit extrinsic evidence that a significant proportion of collec-tíon notice addressees were deceived by the notice. They are reading far too much into Judge Easterbrook’s observations.

Gammon does not significantly change the substance of the “least sophisticated consumer” standard as it had been routinely applied by courts. Instead, Gammon concluded that the term “unsophisticated consumer” is a simpler and less confusing formulation of a standard designed to protect those of below-average sophistication or intelligence. As a result, the court stated “[w]e will use the term, ‘unsophisticated,’ instead of the phrase, ‘least sophisticated,’ to describe the hypothetical consumer whose reasonable perceptions will be used to determine if collection messages are deceptive or misleading.” Gammon, 27 F.3d at 1257. The new terminology reconciles the former standard’s literal meaning with its application. Id. As Avila correctly observes, the unsophisticated consumer standard is a distinction without much of a practical difference in application.

Judge Easterbrook’s concurrence is consistent with this analysis. Judge Easterbrook notes that the newly named standard looks to a “hypothetical” unsophisticated consumer in the same sense that the reasonable person of tort law is hypothetical. Gammon, 27 F.3d at 1259. Because the letter in Gammon was literally true but possibly misleading, Judge Easterbrook suggests that the plaintiff on remand should show that a significant number of the letter’s addressees interpreted the statement in the letter in a way that violates FDCPA. The implication the defendants urge is that this is the only way a plaintiff can demonstrate that a reasonable, unsophisticated consumer would be deceived by the statement. We think not.

We also think the defendants’ reliance on false advertising cases from trademark law is unavailing here. Section 43(a)(2) of the Lanham Act prohibits statements that are (1) literally false and (2) statements that, while literally not false or ambiguous, convey a false impression or are misleading in context. See Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6,13 (7th Cir.1992). The general rule is that if a statement is literally false, the court may grant relief without reference to the reaction of buyers or consumers of the product. On the other hand, if a statement is not literally false, the court may find that it is impliedly misleading only if presented with evidence of actual consumer deception. Id. at 14.

Avila claims Van Ru contradicted the validation notice and that Rubin both contradicted the validation notice and improperly sent attorney form letters. These claims resemble a literally false statement more than an ambiguous but potentially misleading statement. Just as the analysis involved in evaluating a literally false statement turns on whether the statement is true or false, the language in the collection letters either contradicts the validation notice or it does not.

We think Avila’s claims are distinguishable from those in Gammon. There, the collection agency stated it had provided the systems for a major branch of the federal government to use in collecting delinquent taxes. Gammon, 27 F.3d at 1257. This statement was literally true, but we held that a consumer might interpret it as implying that the debt collector was affiliated with the United States, in violation of FDCPA. Id. at 1258. Unlike Avila’s claims, Gammon involved a literally true statement with the potential for deception. The statements involved here, because they are inconsistent and contradictory, are more akin to a literally false statement in the context of a trademark case. Accordingly, our finding that the defendants violated § 1692g, without reference to evidence of actual consumer confusion, is appropriate.

We move now to the attorney letters, exhibits C, D, and E, noting first that § 1692e of the FDCPA provides:

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.
(9) The use or distribution of any written communication ... which creates a false impression as to its source, authorization, or approval.

Avila contends that the three letters from Rubin constitute a false, deceptive, or misleading representation because the letters are not “from an attorney” as that term has been defined for the purposes of § 1692e(3) of FDCPA.

Rubin’s dunning letters implore Avila to pay his debt. The form letters, as we noted, are mass-produced and are mechanically signed “Albert G. Rubin” under his “attorney” letterhead. As we also noted, 270,000 letters of this sort went out in the year prior to the filing of this suit.

The leading case on whether mass-produced mailings by an attorney violate the proscriptions of FDCPA is Clomon v. Jackson, 988 F.2d 1314 (2d Cir.1993). The facts of Clomon are similar to those presented here. In Clomon, a debt collection agency mailed dunning letters to debtors after receiving accounts on computer tape from the creditor. An attorney was employed part-time as general counsel for the agency. The agency’s computer system caused each letter to be printed, folded, and placed in an envelope for mailing. The plaintiff received six form letters from the agency. The first letter was sent on the letterhead of an “account supervisor.” The remaining five were sent on the attorney letterhead of the general counsel for the agency. Although the general counsel was indeed an attorney and employed by the agency, the letters were not actually signed by the attorney; instead, they bore the mechanically reproduced facsimile of his signature. The attorney letters implored the debtor to pay up and threatened legal action if payment was not forthcoming. Clomon, 988 F.2d at 1316-17.

The attorney in Clomon personally approved the “form” of the letters and “approved the procedures according to which those letters were sent.” Id. at 1317. The attorney had no direct personal involvement in the mailing of the letters to the plaintiff or to any other debtor. In short, the attorney “never considered the particular circumstances of Clomon’s case prior to the mailing of the letters and he never participated personally in the mailing.” Id. at 1317.

The Second Circuit held that the use of the attorney’s letterhead and his signature on the collection letters was sufficient to give the consumer (the court used the “least sophisticated” consumer) the false impression that the letters were communications from an attorney. Id. at 1320. The letters were false and misleading because although the attorney’s name and signature were on them, they were not “from” the attorney in any meaningful sense of the word. Id. In reaching its conclusion, the court found significant the fact that the attorney did not review each debtor’s file, did not determine when particular letters should be sent, did not approve the sending of particular letters based upon the recommendations of others, did not see particular letters before they were sent, and did not know the identities of the persons to whom the letters were issued. Id. Accordingly, it held that sending attorney dunning letters in this manner violated § 1692e(3).

Clomon establishes that an attorney sending dunning letters must be directly and personally involved in the mailing of the letters in order to comply with the strictures of FDCPA. This may include reviewing the file of individual debtors to determine if and when a letter should be sent or approving the sending of letters based on the recommendations of others. See Clomon, 988 F.2d at 1320. Given these requirements, Clomon concluded that “there will be few, if any, cases in which a mass-produced collection letter bearing the facsimile .of an attorney’s signature will comply with the restrictions imposed by section 1692e.” Id. at 1321.

The undisputed facts in our case establish that Rubin has no real involvement in the mailing of dunning letters to debtors. Like the attorney in Clomon, he has a cozy relationship with the “referring” collection agency. Rubin is not personally or directly involved in deciding when or to whom a dunning letter should be sent. There is no true “judgment” being rendered here by a real attorney. Like the attorney in Clo-mon, Rubin did not review the debtor’s file; he did not determine when particular letters should be sent; he did not approve the sending of particular letters based upon the recommendation of others; he did not see particular letters before they were sent; and he did not even know the identities of the debtors to whom the letters were sent. Instead, Rubin said at his deposition that letters are only brought to his attention for advice and guidance when there is “some unusual problem or something different [or] out of the ordinary comes up.”

Given these undisputed facts, Judge Con-Ion in the district court correctly concluded that Rubin violated § 1692e(3) and (9) because his collection letters create the false and misleading impression that the communications were from an attorney when, in fact, they were not really “from” an attorney in any meaningful sense of the word.

An unsophisticated consumer, getting a letter from an “attorney,” knows the price of poker has just gone up. And that clearly is the reason why the dunning campaign escalates from the collection agency, which might not strike fear in the heart of the consumer, to the attorney, who is better positioned to get the debtor’s knees knocking.

A letter from an attorney implies that a real lawyer, acting like a lawyer usually acts, directly controlled or supervised the process through which the letter was sent. That’s the essence of the connotation that accompanies the title of “attorney.” A debt collection letter on an attorney’s letterhead conveys authority. Consumers are inclined to more quickly react to an attorney’s threat than to one coming from a debt collection agency. It is reasonable to believe that a dunning letter from an attorney threatening legal action will be more effective in collecting a debt than a letter from a collection agency. The attorney letter implies that the attorney has reached a considered, professional judgment that the debtor is delinquent and is a candidate for legal action. And the letter also implies that the attorney has some personal involvement in the decision to send the letter. Thus, if a debt collector (attorney or otherwise) wants to take advantage of the special connotation of the word “attorney” in the minds of delinquent consumer debtors to better effect collection of the debt, the debt collector should at least ensure that an attorney has become professionally involved in the debtor’s file. Any other result would sanction the wholesale licensing of an attorney’s name for commercial purposes, in derogation of professional standards:

[A] lawyer has been given certain privileges by the state. Because of these privileges, letters ... purporting to be written by attorneys have a greater weight than those written by laymen. But such privileges are strictly personal, granted only to those who are found through personal examination to measure up to the required standards. Public policy therefore requires that whatever correspondence purports to come from a lawyer in his official capacity must be at least passed upon and approved by him. He cannot delegate this duty of approval to one who has not been given the right to exercise the functions of a lawyer.

American Bar Association, Formal Opinion 68 (1932).

The defendants make two final arguments. First, they claim that mass mailing is economically efficient and necessary in the debt collection industry. This argument has been rejected by several courts. See Clomon, 988 F.2d at 1321. As Clomon stated, “[n]o mass mailing technique is permissible— regardless of how effective it might be — that technique constitutes a false, deceptive, or misleading communication.” Id. An attorney’s signature implies the attorney has formed a professional judgment about the debtor’s case; these implications will frequently be false in a mass mailing situation. Id.

Second, the defendants argue that holding Rubin liable will effectively condemn the use of paralegals and assistants in a law office. This argument is untenable. As Judge Con-Ion noted:

Paralegals do not (or should not) engage in the practice of law. Paralegals do not intake a new client, decide whether a lawsuit is warranted, prepare unreviewed pleadings, stamp the attorney’s signature, and file the lawsuit, all without the considered approval of the attorney. Attorneys personally supervise and review paralegals’ work, consider the ease, and approve the recommendations or work.

Albert G. Rubin, acting os an attorney, was not the real “source” of the letters in this ease. The true source of the “attorney” letters was the collection agent who pressed a button on the agency’s computer. “Albert G. Rubin & Associates, Ltd.” is a collection agency, not a law firm at all in any real sense of the term. The “law firm” does not have a retainer agreement with plaintiffs creditor. No attorney working in the “law firm” ever files a lawsuit or goes to court on behalf of a client. We agree with the district court and with the Second Circuit in Clomon. Rubin was correctly found to be on the wrong side of the FDCPA

As a final matter, Rubin takes a stab at challenging the amount of damages set by the district court. We have considered his objection and find it to be without merit. Accordingly, the judgments of the district court are

Affirmed.

      . A state claim under the Connecticut Unfair Trade Practices Act was abandoned.