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By Jack King
Clovis' City Commission approved a raise Thursday night for police department dispatchers and shift supervisors.
The raise will cost the city approximately $500 a month or $6,000 a year, plus benefits, City Manager Raymond Mondragon told the commission.
Starting salaries for dispatchers will go from $9.05 to $9.25 an hour. Pay for certified dispatchers, with a year's experience will be $9.50 an hour, and for dispatchers with Emergency Medical Dispatcher certification will be $9.75 an hour. Maximum pay for dispatchers will be $12 an hour.
Communications supervisors will receive at least a .5 percent increase, with maximum pay at $13.50 per hour.
Police Chief Bill Carey said the raise will go into effect in the dispatchers' next pay period, with the results showing up on their Oct. 31 paychecks.
Also, the commission unanimously approved instructing Commissioner Isidro Garcia, a board member of the New Mexico Municipal League, to vote for having the league favor state adoption of the entire family of International building codes at a board meeting Saturday.
The state Construction Industries Division has offered a compromise on the building codes issue. It will approve use of the international building and residential codes, but for plumbing and mechanical codes it would use updated versions of the uniform codes. For electrical contracting, it would use the National Electrical Codes, according the CID bureau chief Fermin Aragon.
Mondragon said Clovis' task force on building codes has voted in favor of adopting the whole family of international codes. Clovis builder Randy Crowder, a task force member, said the Clovis Home Builders Association has hired a representative from the International Code Council to come to Clovis and help plumbing and mechanical contractors better understand the "I" codes.
Travis Denton, a Clovis plumbing contractor, said he much prefers the uniform codes.
"I don't agree with a lot of stuff I see in the international codes. I don't agree with adopting the whole package. I hope you don't go ahead with what you're doing," he told the commission.
Bill Nance, a former Clovis building inspector, said he wanted to "strongly encourage" the commission not to adopt codes different from the state codes.
"I don't care which code they adopt. What I'm concerned about is uniformity. The CID is tasked with developing a uniform code throughout the state," he said.
In other business, the commission:
n elected Joaquin Madril and Richard Vela to two open slots on the city Planning and Zoning Commission.
n elected Jay Neff to represent Curry County on the city's Water Policy Advisory Board.
n elected Commissioner Lunell Winton as a city representative to the Plains Regional Medical Center Hospital Board.
n approved a reorganization of the city's Inspections Department under which Director of Inspections Marcus Brice will be made Chief of Codes Enforcement and the city will look for a new director.


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Airing Saturday 11/30 through Sunday 12/1 on Stars, Ch. 106. SiriusXM Stars is putting a solid 48 hours of airtime into Dr. Laura Schlessinger's well-trained hands this Thanksgiving weekend. The veteran talk host, bestselling author, and relationship guru will provide listeners … Continued
dr. laura
Dr. Laura's training for 48-hour Thanksgiving Marathon
SiriusXM Remembers JFK: Martha Stewart, Bob Edwards, Cousin Brucie and more
Airing all week on POTUS All week long on POTUS, SiriusXM hosts are remembering the life and death of John F. Kennedy. On a special edition of SiriusXM Remembers, some of our hosts including Martha Stewart, Bob Edwards, Tim Farley, Joe … Continued
Thanksgiving Specials: Spectrum Sessions, Dr. Laura & Jimmy Buffet
Thanksgiving is the Holiday of excess so get your fill on Turkey Day with one of the marathons airing across SiriusXM, from Dr. Laura's Thanksgiving Marathon on Stars to Jimmie Johnson's Guest DJ spot on The Spectrum. To round it … Continued

subset: commoncrawl


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Loprinzi, Charles L. MD
ASCO 2014 provided a number of interesting symptom-intervention abstracts—some of which will affect clinical practice.
Two abstracts were presented at the patient care oral session regarding bone health: One of them (Abstract LBA9500) looked at the use of zoledronate given every four weeks versus every 12 weeks in patients who previously had at least nine monthly doses of zoledronate. These data revealed that there was a similar incidence in skeletal-related events in the patients in both arms. Adverse events were also very similar in both arms, although there were a few more patients who stopped zoledronate due to adverse events in the four-week arm, including two cases of jaw osteonecrosis in that arm.
These data confirm previous data from the ZOOM trial, which showed similar results with women who received treatment every four weeks versus every 12 weeks. The combined results of both of these trials better establish zoledronate therapy every 12 weeks, as opposed to every four weeks, following a year of monthly zoledronate therapy.
While this will be a practice change for many oncologists, many others have been treating at three-month intervals for the second year, already. Of note, data from another randomized trial (CALGB 70604) looking at four-week vs. 12-week administration of zoledronate for two years, starting with zoledronate initiation, will, hopefully, be presented in 2015.
Another bone health related abstract (Abstract 9501) compared denosumab with zoledronate, looking at subgroup analyses of patients from three previous randomized trials. These presented confirmed data from previous reports of these studies, looking at all patients, as opposed to subgroups. In concert with the previous reports revealing that the time to skeletal-related events was statistically better in patients receiving denosumab, compared with zoledronate, the current report revealed that these denosumab-related benefits were seen across all subsets of patients.
Acknowledging this denosumab-related benefit, the discussant of this abstract, Thomas Smith, MD, noted that the cost of denosumab is considerably higher than that of zoledronate, that there is no known difference in survival between patients receiving either of these agents, and that the most recent ASCO guidelines, published in 2011, did not recommend a preference for one bone-modifying agent over the other.
Two abstracts, also presented at the oral patient care session, discussed cardiac issues. One of these (Abstract 9504) looked at the long-term risk of heart failure in patients who had received adjuvant trastuzumab. While the risk of heart failure was higher in the first one and a half years in patients receiving trastuzumab (2.6% vs. 5.3% incidence), after one and a half years the incidence was similar.
A study looking at heart disease issues in patients with Hodgkin lymphoma (Abstract 9505) provided further confirmatory data that these patients are at a high risk for cardiac events for years to decades, especially if they had received mediastinal radiation therapy.
Another oral session presented an abstract evaluating intravaginal dehydroepiandrosterone (DHEA) for improving vaginal symptoms in female cancer survivors (Abstract 9507). This randomized, placebo-controlled, three-arm study, evaluating two doses of DHEA, reported that there was an improvement in vaginal function and sexuality with DHEA compared with use of a vaginal moisturizer alone.
The therapy was well tolerated although there was some mild hirsutism and a minimal increase in acne with DHEA. While DHEA did increase serum DHEA and testosterone concentrations, it did not substantially increase estrogen serum concentrations, particularly in patients receiving aromatase inhibitors. These data support the use of this product for patients with vaginal dryness in whom topical estrogen would be contraindicated.
Another study (Abstract 9510) evaluated a standardized exercise program that was demonstrated to reduce psychological distress and improve inflammatory cytokines of distress among men with prostate cancer, further supporting the efficacy of exercise in patients with cancer as tolerated.
Regarding chemotherapy-induced peripheral neuropathy (CIPN), a pilot trial reported that Scrambler therapy, an electro-cutaneous treatment, appeared to decrease neuropathy in patients with established severe CIPN, more than what would have been expected with a placebo alone (Abstract 9622). This supports that this treatment approach should be evaluated in a placebo-controlled trial manner.
An interesting abstract evaluated the use of pegfilgrastim at various times following the administration of breast cancer therapy (both anthracycline/cyclophosphamide treatment and paclitaxel treatment) (Abstract 9632).
Cohorts of patients received the pegfilgrastim 24 versus 72 versus 96 hours after chemotherapy. From serial blood counts being obtained after this was administered, it was noted that white blood cell counts were extraordinarily high one day after the pegfilgrastim in the patients who received such 24 hours following chemotherapy (62.5 103 units). Administration of pegfilgrastim 72 hours after chemotherapy was associated with less substantial neutrophil counts after pegfilgrastim; no differences in chemotherapy delays were observed in patients treated with pegfilgrastim 24 versus 72 hours following chemotherapy.
These authors proposed that it would be better to take pegfilgrastim 72 hours following chemotherapy. These data do support that pegfilgrastim can effectively be used 72 hours following chemotherapy.
Lastly, a randomized study in hormone receptor-negative breast cancer involving 257 patients studied the use of an LHRH analog started prior to adjuvant chemotherapy in premenopausal women who wished to maintain fertility (Abstract LBA505). Patients receiving the LHRH analog were less likely to have premature ovarian failure (8% vs. 22%), had more pregnancies (22 vs. 13), and, unexpectedly, had improved survivals (HR 0.04; p = 0.04).
© 2014 by Lippincott Williams & Wilkins, Inc.
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Beer fans in central New York are mourning the passing of Bernie Rivers who ran Galeville Grocery in Liverpool near Syracuse. The shop hails it self as "your complete historical neighborhood grocery store since 1888." I met Bernie this past January on a beer run into Syracuse and enjoyed a few minutes with this cornerstone of the community as well as the CNY beer scene. I've been shopping at Galeville for almost six years so far and have always been struck how dependent we beer fans are on the passion and risk taking of the shop keepers like Bernie who stock the shelves, hoping the locals will support the decisions and selections they make. I've rarely been anything less but excited with my finds there.
Tributes can be found at the Facebook pages for his store.


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YAO Crosses Below Key Moving Average Level
Written by: ETFChannel.com
Tickers in this article: YAO
In trading on Thursday, shares of the Guggenheim China All-Cap ETF
crossed below their 200 day moving average of $24.19, changing hands as low as $23.98 per share. Guggenheim China All-Cap shares are currently trading down about 2.1% on the day. The chart below shows the one year performance of YAO shares, versus its 200 day moving average:
Click here to find out which 9 other ETFs recently crossed below their 200 day moving average »
Looking at the chart above, YAO's low point in its 52 week range is $20.92 per share, with $26.67 as the 52 week high point — that compares with a last trade of $24.15.


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The WEEKEND MetPod
with KAMASAMI KONG, KALEB JAMES and DON MORTON
Did you know soul musician NE-YO walked off stage during one of his big concerts here in Tokyo? Our MetPod music director and star of the CONCERT CALENDAR, KALEB JAMES explains why from backstage with his NEW YORK MINUTE band after a recent gig.
METROPOLIS film critic, DON MORTON goes to all the movies–so we don't have to -and- he shares his salty but valuable opinions on each one opening in Tokyo this weekend.
And, hear a special sax performance by PIERRE ANDRE exclusively for you, our cherished Metpod listeners.
to see
The ALL BLACKS vs. QANTAS WALLABIES
in the first 30-seconds
of the Podcast
CLICK ON ARROW to PLAY…INSTANTLY!
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Veterans Service Organizations
|American Red Cross*
Since World War I, Red Cross volunteers have provided services to US Veterans.
AMVETS (American Veterans) sponsors numerous programs to assist Veterans and their families.
|Military Order of the Purple Heart*
This organization works to promote history, education, fraternity, service and patriotism.
|Paralyzed Veterans of America*
The Paralyzed Veterans of America has worked to secure health care and benefits for Veterans of the armed forces living with spinal cord injury and disease.
|Vietnam Veteran Wives*
Vietnam Veteran Wives was created to reach out to veterans, their spouses and families. VVW concerns include benefits for spouses and children, VA Claims, PTSD issues, and more.
Vietnam Veterans of America Chapter 20 (Rochester)
The goal of this organization is to promote and support the full range of issues important to Vietnam veterans, to create a new identity for this generation of veterans, and to change public perception of Vietnam veterans.
|Blue Star Mothers
The Blue Star Mothers provide support for active duty service personnel, promote patriotism, and assist veterans organizations. They are also available to assist in homeland volunteer efforts to help our country remain strong.
|NY State Division of Veterans Affairs
The purpose of the State Division of Veterans affairs is to provide quality service, advocacy and counseling for New York Veterans and their families, ensuring they receive benefits granted by law for their services to New York and the Nation.
|American Legion - Monroe County Posts
American Legion - Executive Officers and Committees
American Legion - Department of New York
The members of the American Legion come together to disseminate information pertaining to the activities of the American Legion in the area. By the sharing of activities, committee reports, and legislation they hope to keep members energized, educated and involved in the locality where they can make a real difference.
|Monroe County Post #26
Robert Dardano, Commander
Meets 3rd Wednesday @ Dandrea's
|VFW - Monroe County Posts
The mission of the VFW is to foster camaraderie among United States veterans of overseas conflicts. To serve our veterans, the military, and our communities. To advocate on behalf of all veterans.
|Monroe County Powers Chapter #15
Meeting at: 40 & 8 Chateau
933 University Ave.
Rochester, NY 14607
ON THE 1st Wednesday OF THE MONTH at 7:30pm
E mail: email@example.com
|Warrior Salute™, a service of CDS Monarch, helps Veterans with Post Traumatic Stress Disorder, a Traumatic Brain Injury, and Military Sexual Trauma, regain their lives by providing quality clinical and rehabilitative therapies, employment opportunities, and temporary housing. To learn more about Warrior Salute™ please visit www.cdswarriorsalute.org.


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get OUT!
You never know where Intrepid will be stepping out next – and this week Intrepid gets OUT, literally! Or at least we are a few steps closer to the gay and lesbian community with our latest partnership with gay-owned OUT Adventures.
The brainchild of Steven Larkin and his partner Robert Sharp, this new company offers adventure travel exclusively to the LGBT community – and of course their friends.
Homegrown and based in Canada, Robert and Steven have been touring the world, and occasionally working, for the past 5 years. Each time they would return feeling there was a void in the travel market. Never totally comfortable while other couples were having fun and snapping photos, Robert and Steven decided to address the issue by starting their own company.
"We wanted to offer a safe, comfortable travel experience for people like us." says Robert. "There were the gay cruises and resorts and even luxury small group tours, but nothing that satisfied our grassroots adventurous spirit."
And with trips from Swaziland to Rio and Costa del Sol to Chiang Mai, it's all about adventure! With this partnership comes an exciting new Intrepid trip style – OUT. Within the OUT style there are currently Active, Family, Comfort and In Style trips which all focus on small intimate groups. No, not that kind of intimate. But high-flying travellers couldn't ask for more because these trips are affordable and have adopted Intrepid's responsible travel philosophy.
So tell the bartenders you won't be seeing them for a while, pack your facial products, and perhaps even dust off your wash-n-wear safari suit. Intrepid Travel and OUT Adventures are ready to show you how big the world can really be!


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News is in that Fiona Apple's eagerly-awaited fourth album has been recorded, but it seems she might be having some issues with the label again, allegedly. In a recent live show she said that, apparently, she doesn't remember any of her new songs because she has recorded them a while ago. Michelle Branch also bragged about hearing some of the tracks on twitter. Check her tweet below. Let's hope it comes out soon as we are missing some Fiona goodness!
Hate to brag but I heard a couple new Fiona Apple tracks today. Amazing.
— Michelle Branch (@michellebranch) September 12, 2010


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Dinner links: Crazy $#!% and lectures
Our reputation really does precede us- we're the litigious aholes of the world. Sorry Denmark! :/
The key question is intent with regard to criminal laws.
The charge here was "negligent driving." I am not familiar with that specifics of that law in Maryland. Clearly the prosecutors made a decision it was better to offer a plea agreement rather than prove "negligent driving" in court. That is probably because
A. There was no speeding
B. No alcohol
C. The defendant is visibly sorry.
And you do realize the penalty is only a year in jail.
The charge of "failing to avoid a pedestrian collision" is interesting, and might describe what you are looking for. Again, I am not a maryland lawyer but a quick look through google seems to it is mostly used when you hit a pedestrians in a crosswalk.
From the news reports, that is exactly what he pled to, and paid the maximum fine.
To quote the DA ""While it is an extremely sad and tragic incident, there is no crime for a death resulting from mere negligence," Smith said. "Nevertheless, we felt very strongly about him pleading guilty to the citation of failure to avoid a pedestrian collision for which he was given the maximum fine," he said."
Asking for an increase in the penalty is fine, but stop asking judges and DA to make up laws that don't exist, and then blame it on "Driver-bias".
I think you are confused about what the word homicide means. Many "accidental" shootings are in fact homicides.
Does Charleston have a transit system drowning in red ink? Does Charleston have major job centers like Tysons Corner located in the Suburbs? Does Charleston have to compete with 2 other states within its own metro area?
Charleston has a reputation for attention to the public realm and context-sensitive infill development. But too bad we can't learn anything from it.
by Michael Perkins on Mar 30, 2010 9:43 pm • link • report
Second, I can only suggest that these two cases are probably best not compared, as pointed out by other people commenting on it. If for nothing else, only one involved a vehicle. Also, I'm not sure if the motorist claimed it was an accident, but I know there is nothing accidental about throwing a dog off a bridge. Its just plain cruel.
1 1/2 years ago I had a bad bike accident as a result of my navigating away from an SUV that was entering real fast the road I was biking on.
My front tire went straight into the street car track in the great City of Portland, OR and I went down for the count real fast, in severe pain, unable to move.
20 minutes later, I'm in the ambulance still at the location, in agony. A driver approached one of the EMTs. I hit her car and caused damage, she said. She was asking for my contact information! I'm laughing now. Then, I just groaned and didn't answer.
The EMT then passed me a small piece of paper on which she'd written her first name and phone number. I still have the piece of paper as a token of the inhumanity I observed.
And no, I never called.
by Dennis Jaffe on Mar 31, 2010 9:24 am • link • report
Basically, the story says he was not drunk, not speeding, within his lane of travel, and operating his motor vehicle legally. It was an accident. The "failure to avoid a pedestrian" charge is, actually, something that should make you happy, since it appears that anyone, anytime, who hits a pedestrian will get slapped with this, even when it's not their fault. Fortunately, we have no such thing in DC.
And you think this guy should be punished more harshly than someone who willfully tortured and killed an animal?
So what is it now. Every single time that a pedestrian (anywhere) dies in an accident for which the driver is not found to be responsible, you're going to cry about the injustice of someone else getting a harsher penalty for some completely unrelated crime for which they actually were responsible?
Great reporting. Keep at it. Your point, which seems to be that we should lock up anyone who kills a pedestrian for life regardless of the circumstances, is pretty weird, at best.
C. The defendant is visibly sorry.
Fucking pathetic.
Asking for an increase in the penalty is fine, but stop asking judges and DA to make up laws that don't exist, and then blame it on "Driver-bias".
Right, because our laws certainly in no way reflect our cultural biases. Imagine how our lives might be different if, when the Lord Jehovah passed down *our* current motor vehicle code, He had handed the stone tablets meant for Holland to George Washington instead. How different our streetscape might be.
You can't make this shit up.
I think you finally get the point. Most people here think that it is unfair that killing a pedestrian has pretty much no penalty. I would say "justice is not served". Others might simply not be able to believe that there are no laws on the books to slap these killers with. Clearly, the law is full of driver-bias.
@ Jamie: If you wanna put it in black-and-white terms, yes that's what is boils down to. However, most folks here see the world in shades of gray, which leads to a lot of subtlety, which is hard for some to follow.
A lot of people would for starters object to the word accident. The question is in most cases, whether you should hold someone responsible for the action of willfully (or neglectfully) not paying enough attention to the situation on the road.
When people bump in to each other on the sidewalk, most would say sorry and admit they weren't paying (enough) attention. That's fine and the consequences are usually minor.
Oddly, this behavior of taking responsibility for one's actions seems to become impossible when "bumping" into someone while surrounded by a ton of steel and moving around a much higher speed with much higher consequences. In fact, a few examples are given where the crasher demands damages from the crashee. Why is that exactly?
If you want the driver of any vehicle that hits a pedestrian or cyclist to be charged with murder or attempted murder, then amend the laws to say so. Essentially, that would mean that the simply act of driving would now be subject to strict liability, rather than the traditional framework of negligence. I don't think that has the slightest chance of happening, but by all means, advocates for such a change should petition their legislators to enact that new legal interpretation.
Of course, such an interpretation would doubly have the effect of essentially banning all vehicles from being operated because the insurance costs would skyrocket, thereby either making insurance premiums prohibitively expensive or resulting in insurance companies dropping auto coverage b/c of the liability risks. And that would make jurisdictions far more walkable, but would make it just a bit more difficult to transport any goods or services.
Otherwise, the centuries-old legal concepts of a person's intent will be dispositive of the issue.
Perhaps we disagree on the purpose of punishing people severely. If someone has made an error resulting in injury or death, you seem to think they should be treated about the same as someone who intentionally caused the same harm. I am really not sure how society benefits from that.
The thing is, your assumption is that any pedestrian accident involves willful negligence. Fortunately, in order to be convicted of a crime in this country, you must prove that, or at least convince a jury.
There are hundreds of thousands of accidents every year involving cars. Do you think, in every case, we should try to identify the driver at-fault and try to prosecute them as if they were willfully negligent?
Since you want to treat the driver of a car in an accident where someone dies as a murderer, then I also assume you would want to treat the driver of someone in every other accident on attempted murderer.
What if I am holding a ladder for you and for some reason, the ladder moves, and you fall off, being injured or killed. Do you think that I should be charged under the same standard?
If a deer jumps in front of my car and I lose control, resulting in the death of a passenger in my car, do you think I should be charged with homicide?
Why do you believe that every time an accident happens, it's the result of willful negligence? In 99% of the incidents that are discussed here, it's entirely unclear that this was the case. Yet, like McCarthy, you are intent on relentlessly holding someone responsible every time there is an accident that results in injury or death.
Do you believe that, actually, accidents never just happen? That it's impossible for mere human beings to reasonably be able to avoid such an accident in every single case? That there are more actors in a situation than just the driver? And that, as such, we should treat everyone involved in an accident as a murderer?
Welcome to North Korea.
And yet...as we've hashed over again, and again, and again here, other countries *do* handle things differently. I'm assuming you're just being pig-headed in not understanding the obvious point that our laws reflect our cultural biases.
It's a pretty trivial point, and should be pretty easy to grasp, hand-waving about pseudo-psychology, or what have you, notwithstanding.
Again, love that for some folks here, who cannot fathom any option other than a) lethal injection on one hand, or b) a $10 fine on the other.
Not exactly the last bastion of supple thinking.
Welcome to North Korea
Right. Or Holland. Of course, for your typical reactionary lunkhead, it's a distinction without a difference.
So, back to my question: Do you think that it's possible for an accident to NOT involve willful negligence? How do you think the people in all those scenarios I described should be charged? Should everyone involved in a situation where someone's injured be presumed "willfully negligent?"
What other countries do isn't really relevant to the question of what makes sense here. You may recall that this country was founded because we didn't like what another country was doing.
Well, to be fair, I thought I was being succinct. The argument wasn't that drivers shouldn't be held to some marginally higher standard than they currently are; the argument was that no higher standard is even possible, and that our failure to do so is in no way culturally driven.
Now you're arguing that "We do things *our* way. The American Way!" Which is essentially a different way of saying, "You are correct, Oboe. I guess these things are driven by 'psuedo-psychology'; or more accurately 'sociological factors'. Thanks for pointing out my error. You rule."
Your welcome.
Actually I was simply pointing out that the fact that because (one) other country does things a certain way, does not mean we should do it that way..
It may surprise you to know that nearly every single aspect of our legal system and societal conventions differs in substantial ways from many other countries. Your personal agreement with one aspect of another country's legal code is not an argument for it being good.
If I said "well Iran chops of people's hands when they steal so we should too" would you agree with me? So why, then, does the mere fact that another country does something in a way that you like, make that an argument for doing it?
"Well, to be fair, I thought I was being succinct."
And you still failed to answer any of my questions.
Do you think it's possible in any accident involving an injury or death for the other party to not be guilty of willful negligence?
Obviously that's the case. The difference here is that the presumption is that the car is being driven with sufficient care--even in the case where another road user, a user who by law has right-of-way, is killed.
To address your future point: It's easy to confuse this with "presumption of innocence" but they're not the same thing.
Well then explain it to me.
"Driving without sufficient care" would be the grounds for charging one with a crime, willful negligence.
Individuals are either innocent or guilty when charged in a crime.
Therefore, a lack of presumption of "driving with sufficient care" even with no evidence to the contrary, means there is no presumption of innocence.
Where's the logical disconnect?
Here's a thought experiment: if run someone down in a parking lot, killing them, my guess is I'd be more likely to pay a heavier penalty than if I did so on the roads. Why? Because, in the popular conception, cars are supposed to watch out for pedestrians in a parking lot. And everywhere else, pedestrians are supposed to "watch out" for cars.
You see this unexamined attitude a lot both here and in the "real" world. It's fucked up.
Ah, I see, we define "innocent" differently. I believe it means "not at fault," as generally used in our legal system.
Since you believe that anyone involved in an accident is, by definition, not innocent, then that definition differs than the one that most people use.
You believe "innocent" means "not involved in an accident at all." Nothing more to discuss there, I guess.
As for "in most developed countries," can you elaborate? I thought it was only Holland.
"cars are supposed to watch out for pedestrians in a parking lot. And everywhere else, pedestrians are supposed to "watch out" for cars."
So basically, you think that those pesky "rules" like crosswalks, traffic lights, and stop signs, which are designed to ensure that everyone is safe, are useless, since, actually, you should drive on a road in exactly the same way that you drive on a parking lot. So we really don't need them at all, and roads and parking lots serve entirely the same purpose in our infrastructure.
by David Alpert on Mar 31, 2010 12:24 pm • link • report
The basis of our legal system is that you are presumed "not guilty" of a crime unless sufficient evidence is presented.
What you and other seem to want is a system that allows the conviction of an individual for a criminal offense without the usual burden of proof in a specific situation.
I don't care what you call it - but if you do not presume that someone is complying with the law at the outset, and you can then convict them of a crime without evidence of their breaking any law, then they are no longer presumed to be "not guilty" of a crime.
What makes this situation different than any other where fault is not immediately obvious?
What about accidents involving two cars? Should the surviving driver be required to prove that he was NOT breaking any laws?
The problem is, in the absence of an eyewitness in almost any accident, it will be very difficult for the survivor to meet any reasonable burden of proof.
Given that almost half of all pedestrians killed in motor vehicle/pedestrian accidents are legally drunk according to NHTSA, you're sure placing a lot of responsibility on one party, and very little on the other.
The issue is one of legal standard. You always have to prove a charge beyond a reasonable doubt, but the question is, what do you have to prove?
"Negligence" does not require mens rea, the intent to commit the crime. Clearly the driver did not intend to hit the pedestrian. You seem to be saying that since that's the case, therefore the driver is innocent, end of discussion.
The driver is not innocent because the driver did hit the pedestrian. The driver is also not guilty of murder, because murder requires intent and it's pretty clear there was none. But is the driver guilty of negligence?
Different nations choose different standards for negligence in driving. One standard would be: if a driver hits a pedestrian, they are negligent, unless there was some extenuating circumstance. Some European nations do it that way.
Another standard would be: if a driver hits a pedestrian, they are not negligent unless they were also breaking some other law at the same time AND the pedestrian was breaking no laws. For example, if the pedestrian is in a crosswalk with the light and the driver is speeding, the driver is negligent, but if the ped was not in the crosswalk and the driver was still speeding, the driver is not negligent. I don't yet know the nuances of the standards here but often that seems to be the way the law is enforced in the US.
Some are arguing we should use the European standard. There are also middle grounds. For example, we could have a standard that the driver is negligent even if they don't break any other laws, but if a jury could find that a reasonable driver would have not hit the pedestrian. Or, we could have a standard that if the driver is breaking some law but the pedestrian is also, the driver is still potentially negligent.
Drivers are supposed to not hit pedestrians. Drivers are supposed to operate their vehicles in such as way as not to hit a pedestrian. There's no inherent reason why it's necessary that a) the driver committeed two violations, not just one, and b) the pedestrian was 100% blameless just for any consequence to adhere to the driver whatsoever.
We can argue about where to draw that standard, and states do move the line, but I'd argue that, based on the current outcomes in many cases, the line is not in the right place.
When a driver in Florida can hit and kill a cyclist in broad daylight, with great visibility, where the cyclist was just going straight along a country road with no intersections, and say "I just didn't see him" and not be considered even the slightest bit negligent under the law, then our negligence standard is wrong.
by David Alpert on Mar 31, 2010 1:05 pm • link • report
I am not saying that we should hold a driver unaccountable in the situation you describe. But that is because of the specifics of that situation. Those are, actually, the factors that would be used to convince a jury of guilt: good visibility, broad daylight. In my view they should be guilty - if a car hits a cyclist with absolutely no reason to believe that they couldn't see them, then that's how you eliminate the reasonable doubt of their innocence.
What if it was at night and the victim had no reflective gear? What if the cyclist/jogger was wearing a headset, meaning he might not have been fully aware of their surroundings?
The problem I have with the attitude here is to assume guilt, and rail against the system, in EVERY SINGLE CASE, even when it seems clear that the victim was, in fact, the negligent one, such as the jogger/truck accident.
Oboe and others don't seem to be arguing for a rule that says, there is no need to identify the anything (e.g. good visibility) that would indicate negligence on the part of the driver. They seem to be arguing for a rule that says, the driver must prove they were not negligent first, regardless of the pedestrian's apparent actions.
Very, very few of the accidents that get brought up here are nice and clean like your cycling accident. Most are in traffic, the pedestrian possibly not in a crosswalk, at an intersection, a jogger wearing headphones (which also means they were probably moving faster than a typical pedestrian), and so on. In these cases, you cannot point to any factors that clearly indicate negligence, as with the Florida example.
Again, there are a lot of way to kill you accidentally that carry little to no penalty. The key question, as others have stated, is do you intend to kill someone. Just driving a car isn't evidence of intent.
What some people are asking for is a shift of the burden of proof (i.e. if you kill someone with a car you have to affirmatively prove you are not guilty) or a redefinition of "negligent" to include driving behavior where nothing wrong was done. In the case of Mr. Schwartz, I could see expanding cell-phone use to "negligent" but the facts did not line up well. In any case, we still don't know what he was charged with.
Blaming this all on "driver-bias" is a massively ignorant reaction.
Let me give you a counterfactual. One of the authors (perhaps dave or michael) had a car with a broken axle recently. Let's say that axle broke while driving and in the accident he killed someone -- a passenger, other driver, or pedestrian. What should the penalty be?
Or to take it one step further, someone gets into an accident with an older car, and becasuse the car is a bit older and doesn't stop quickly enough, someone dies. What is the penalty there?
Finally, take someone who dives a cheap new car (but like many cheap cars with bad brakes) and gets into an accident and kills someone. If he had a better car, he could have stopped sooner. What is the penalty there?
Criminal law's standard is, by necessity because you're talking about imprisoning a person, much higher than that used in tort law in civil cases.
To charge every driver with a crime in every case of a car hitting a pedestrian or bicyclist, regardless of the circumstances, is simply not good public policy, nor does it make any sense. Every death is not a crime.
This discussion reminds me of the thread from last week on the grand jury that refused to indict a driver who had been involved in a pedestrian death. There was much shock, anger and gnashing of the teeth. There was much agonizing about how such a result wouldn't happen in other countries. There was speculation that it must have been the grand jury's car-centric biases that led to the results.
Yet the bottom line is that to try someone for a crime and to sentence that person to prison, there sure as heck out to be incontrovertible evidence. It's a very high standard, and it should be any time the state is trying to put someone in jail.
In civil cases dealing with tort law, the standard is far lower than "beyond a reasonable doubt." And that makes sense since you're generally talking about money, and not someone's life, as the remedy for the tortious actions.
The view that every car accident should be viewed as criminal activity is simply a radical departure from the traditional American criminal justice precedents.
If that's what they do in Europe, or Asia, or Antarctica, that's fine and dandy because their legal codes allow for such a result. But our legal system, as it currently exists, does not allow for the same result. And that's not because it's car-centric, but because it's common sensical.
Now, as I said before, if proponents of a system that exists in other countries want a similar system here, then by all means advocate its adoption by the legislatures. But it's rather pointless to complain that the criminal justice system isn't doling out "justice" when it's simply not statutorily allowed to do so willy-nilly.
And, since this is America, you can always sue! A pedestrian hit by a car can simply pursue civil charges against the driver under tort law.
Ok, finally. Thanks for someone on the auto-centric side conceding that it's a cultural bias. Now that we've got that out of the way, let's address the "common sensical" assertion.
Personally, I agree with Einstein that "Common sense is the set of prejudices we acquire by the age of 18." It's the very definition of unexamined cultural bias (in this case, the infelicitous "driver bias" as someone put it). Saying something is "commonsensical" is basically an admission that you're either incapable of, or won't be bothered with defending it.
That's why Palinism is so popular with a certain segment of the far Right.
The distinction between "innocent" and "not guilty" can be important but in this context really is just semantics. When the issue is punishing someone for committing a crime the distinction becomes irrelevant because under our legal system someone who is "not guilty" can't be punished rendering their innocence (or the lack thereof) completely irrelevant (in the eyes of the law.)
The issue seems to be that some people believe that the laws, as they currently exist, are too lax. The problem is that rather than working through the political process and trying to get the laws they disagree with changed many are arguing that the judiciary should apply a stricter standard than the law allows them to. Changing driver liability standards is clearly a political issue, not a legal one, and needs to be treated as such.
If both parties did something wrong fine both.
If one party did something wrong fine that party.
If one party dies because of the other party but the dead party was doing something wrong the penalty should be lower because the dead party will not pay there fine.
Another thing is we should be enforcing jay walking laws I have never seen that enforced even when people jay walk right in front of police.
Does anybody know what happens in the European countries where "the driver automatically gets the blame" if the person hit saw the car and stepped in front of it on purpose.
Now, as I said before, if proponents of a system that exists in other countries want a similar system here, then by all means advocate its adoption by the legislatures...
Yes. That's why most of us are on GGW.
Driving and Negligence, a play by S. Beckett.
- It can't be done that way.
- Though they actually *do* do it that way in other countries. With better outcomes.
- Well, that's not how we do it here. We use common sense.
- But this alternate way of doing it actually seems to make a lot of sense.
- Right, but that alternate way could never work.
- Strange, because that's how they do it in other countries.
- Ah ha! But in America...
[exeunt Left; lights dim]
Jamie: I agree with much of what you say. The real issue is where to draw the line. In the Florida case, the driver probably was negligent. Okay. But if a driver is speeding, and someone tries to cross midblock but far enough away that the driver could have seen them, are they now suddenly not liable because we went from a clear-cut case to one that's got a small gray area?
This also gets into the civil standard of contributory negligence, which is another issue here. DC, MD, and VA are some of the only states with a standard that in a civil suit, if the victim bears even 1% of the blame, they can recover no damages. In almost all other states, if they're 25% at fault, they could still recover 75% of the damages.
Civilly, we need to switch to the comparative negligence standard others have. Criminally, we need negligence laws that allow prosecutors to try to hold drivers responsible in more cases when they in fact acted negligently instead of the current extremely narrow subset of such cases.
I'm not arguing for putting every driver in jail who hits a pedestrian. I'm just arguing we shouldn't excuse every driver automatically except in the rarest of circumstances.
by David Alpert on Mar 31, 2010 2:07 pm • link • report
There's the kicker. Are you so sure the outcome is better? Why?
If you believe that harsh laws would improve safety, then I assume that you believe it's fear of punishment that prevents people from driving negligently. At least, I can't think of any other reason for a desire to exact harsh revenge upon someone (hopefully) guilty of a crime of negligence.
In the rest of the crime and punishment world, there is no conclusive evidence of a strong deterrent effect of harsh punishments -- and this isn't even a crime that one might consciously choose to commit or not based on the perceived punishment.
If you think that harsher penalties for running over a pedestrian would improve safety, then please cite any studies or evidence that supports this notion.
If you do not think that there would be a deterrent effect, then basically you think the law should simply punish, and the argument that it's good for safety is out the window.
I agree.
However, the frequent rhetoric here on this topic indicates that many people do not feel that way. The assumption in any case is that, when we read about an accident where the driver was not deemed negligent, that the driver was excused automatically.
In some cases, it seems clear from the circumstances that the driver was most likely not negligent. In other cases, we do not have enough information to judge one way or another that the right call was made. In every case, though, there is a call for blood on this blog.
In terms of negligent/vehicular homicide, yes, you can show negligence as an element..
But where there is no negligence, that is accidental, and the intent issue becomes important. Some folks want the fact you are driving, or a someone is killed, to demonstrate either intent and/or negligence, and that isn't going to happen.
In terms of changing what is meant by negligence, I think the courts have drawn the line at a pretty good place right now. You speed, you drink, your run a red light, you're in trouble. Cell phone are a weird place but courts are moving in that direction. Using a GPS? driving a crappy car with mechanical problems? using the radio? Talking to someone in the car? All of them are as distracting as a .08 BAC.
In my perfect world, you abolish all traffic offenses and if you kill someone with your car you are charged with murder. Equally unrealistic. A large number of driving deaths are "suicide by car" as that is the most dangerous thing we own.
Your point about civil liability is interesting. In a world of mandatory car insurance, those costs are just going to be passed along to everyone. Would be interesting to study if the different standard had a preventive effect on behavior -- since I suspect most people are unaware of the legal rule I doubt it. It sounds like a way for insurance companies and lawyers to make more money off of us.
I just purchased an insurance policy covering death/hospitalization if I get hit by a car -- about $100 a year. Perhaps we should make that mandatory for bikers.
While someone who hits and kills a pedestrian in Holland may be convicted of a crime and forced to pay restitution, they are likely to have a minimal jail term at most. If they do go to jail, conditions will be humane and they certainly won't have to worry about the assaults and rapes that happen every day in American jails.
They may not even lose their job, and if they do they will have access to generous social benefits. They will have a fair shot at a new job, unlike in America where ex-cons become instantly unemployable anywhere other than McDonald's.
We need to fix our perverted criminal justice system before we funnel yet more nonviolent offenders into it.
1) What David said.
2) I never said that someone who kills a pedestrian should be treated as a murderer. That is incorrect. I want such a person to be treated as a killer. That's what he factually is. You don't even need the law for that. In fact, I tend to stay away from legal arguments. I try to make moral arguments. If the law follows the right morality (thou shall not kill and stuff), justice is served.
3) As for the treatment of a killer in the legal system. I don't really care what the treatment is. You can end up in an infinite debate about intent, guilt, lines and penalties. That is too complicated for a simple soul like me.
I just would like to see the facts to be entered in the legal system and then let the legal system do its work. Currently however, it seems that traffic killers can't even be entered in the legal system. That is rather odd. If you kill someone out of self-defense, you do have to go through the legal system and get a judge to confirm your self-defense.
Why is that so different for traffic killers? Why can't we get traffic killers to go through the legal system and let a judge look at their negligence, intent and guilt? Nobody frowns when that happens in a case of self-defense.
4) Somebody compared Holland to North Korea. Seriously, get a grip on yourself. Pretty much the only thing they have in common is that they're not in the US. Perhaps you may also think that the people over there talk funny. That's about it. I will SPAM this crazy story again though: http://vienna-pyongyang.blogspot.com/
That's absolutely untrue. The state can decline to bring charges against anyone if they so choose, and it happens all the time in self-defense cases.
You don't really believe this, do you? You think that every time someone shoots an intruder, they are prosecuted and go through the whole system even if it's obviously self defense?
The state only presses charges if they think a law has been broken. Killing someone in self-defense is not against the law. Try googling: "no charges were filed" and see what comes up.
People don't even get charged sometimes when it was an accident in gun cases, e.g. someone shoots a person they believed, incorrectly, to be an intruder.
"That is too complicated for a simple soul like me."
Which is, really, why you shouldn't take a principled position on a very complex issue, if you aren't interested in the complexities.
Ah. Ok.
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- Are public spaces really public when not everybody can use them?
- Cell service in tunnels, junking old rail cars, getting finances in order. Here's what's in Metro's Back2Good plan.
- If racial inequities didn't exist, DC would look like this...
- Metro now has an official plan for getting better in 2017. It's called Back2Good.
- WMATA recommended express bus service along 14th Street NW four years ago. Is it time to make it happen?
- The DC reps on the WMATA board might veto late-night closures
- What happens when people without cars move to places built for driving?


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Monday, June 14, 2010
In order to ensure your safety and the safety of each and every player, great quality paintball equipment is an essential part of any paintball game. In addition, while good quality of equipment does not guarantee that you will be a good player; bad equipment is guaranteed to hinder your game and performance.
Proper maintenance of equipment is also essential. If your paintball goggles are covered in paint, it is important not to simply wipe the paint off, because doing so may cause debris to scratch the lens. You should leave the field and clean off the lens using water and a towel or a piece of cloth.
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RUTH COHEN (nee Burke), January 1, 2013, of Philadelphia PA. Wife of the late Norman Cohen. Stepmother of Ted (Randy) Cohen and James Jim (Anne) Cohen. Grandmother of David and Lauren Cohen, Michael and Lauren Cohen and Alison Cohen. Great grandmother of Harry, Max, Zachary and Samuel Cohen. Sister-in-law of Nancy Cohen and Estelle Gillman.
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July 17, 2008
Q&A with showbiz power broker Irv Weintraub: Why doesn't Hollywood give Jewish?
" . . . There are many in Hollywood who don't want to be identified with the complexities that surround the state of Israel . . ."
Irv Weintraub, chief operating officer of the William Morris Agency, talks about his distaste for business travel, the philanthropic flipside of Hollywood excess and why Jews in entertainment don't support Israel.
The Jewish Journal: What's the best thing about your job?
Irv Weintraub: I never know what I'm going to end up doing during the day. And the personalities of people in the business are certainly 'interesting.' What I also love is that mostly everybody I deal with has a good soul.
JJ: Mostly everybody?
IW: There's always going to be the occasional people who are self-centered. People tend to get jaded about what they are and what they do, how they contribute to society at large. That's why we encourage people to get involved with their community, so they can get some perspective.
JJ: Because there's egocentrism in entertainment?
IW: It's all about what your character is. If you have a real firm grounding in values, I think that you can still deal in this business and draw upon those. Sometimes people don't want to leave that last dollar on the table.
JJ: How have you found time to raise a family?
IW: It was one of the many reasons for taking the [WMA] job. If you want to be good at your job, you have to put in the time. There's no free pass. My second year in public accounting, I was out of town for 13 weeks. To be on the road and then living in hotels out of suitcases is not glamorous. I don't care where you're going.
JJ: Were they nice hotels at least?
IW: No. There aren't many nice hotels in Midland-Odessa, Texas.
JJ: How do you rationalize the excess of Hollywood, how people in entertainment have three Ferraris at home, and yet there are nearly 80,000 homeless people sleeping on the streets of Los Angeles?
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October 16, 2009
CARL R. MARSCHKE AND GAY A. MARSCHKE, PLAINTIFFS,v.BARRY-WEHMILLER COMPANIES, INC., DEFENDANT.
In this action for monetary and declaratory relief, plaintiffs Carl R. Marschke and Gay A. Marschke seek an accounting of assets and monetary damages stemming from an alleged breach of contract on the part of defendant Barry-Wehmiller Companies, Inc. The parties dispute the amount due under an agreement for future payment of assets sold by plaintiffs to defendant. Jurisdiction is present under 28 U.S.C. § 1332.
Before the court are defendant's motions to transfer the case to the United States District Court for the Eastern District of Missouri under 28 U.S.C. 1404(a), dkt. #9, and to dismiss the case under Fed. R. Civ. P. 12(b)(7) for failure to join an indispensable party under Rule 19, dkt. #11. I conclude that the convenience of the parties and interests of justice require denial of defendant's motion to transfer. I conclude also that the non-joined parties are not necessary to this suit and will deny defendant's motion to dismiss.
For the purpose of ruling on the pending motions, I draw facts from the complaint and the declarations submitted by the parties. It is proper to examine evidence outside the pleadings on a motion to dismiss under Fed. R. Civ. P. 12(b)(7). 5C Wright & Miller, Federal Practice and Procedure § 1359. Also, when deciding whether the moving party has made the necessary showing for a transfer, a court may rely on the allegations of the complaint and may receive and weigh affidavits submitted by the parties. Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293-94 (7th Cir. 1989).
At the time they filed this suit, plaintiffs Carl and Gay Marschke were citizens of Wisconsin. Their son, Karl Marschke, daughter Lynda Ludwig and son-in-law Dan Ludwig reside in Wisconsin; their son Dean Marschke resides in Minnesota. Defendant BarryWehmiller Companies, Inc. is a Missouri corporation with its corporate offices in St. Louis, Missouri. The business records pertaining to the agreement at issue, the records of the calculations performed by defendant in order to fulfill the sale agreement and defendant's stock pricing records are located in Missouri.
Plaintiff Carl Marschke owned Marquip, Inc., a Wisconsin corporation, in which plaintiffs, Dean Marschke, Karl Marschke, Lynda Ludwig and Dan Ludwig each held promissory notes. In 2000, Marquip voluntarily filed for Chapter 11 bankruptcy. In August 2000, defendant entered into an agreement to purchase certain assets from Marquip. A month later, defendant entered into a sale agreement for the purchase of a principal amount of Marquip notes. The sale agreement is governed by Missouri law. Greg Conrood, vice president and corporate controller for defendant; Ron Haglof, outside counsel; Tim Sullivan, an officer for defendant and the current president of MarquipWardUnited, Inc.; and Robert Chapman, chief executive officer and chairman of the board of directors for defendant negotiated the asset purchase and sale agreements on behalf of defendant. The following individuals have personal knowledge of Marquip's accounting methods, which are relevant to the determination of the amount owed under the future payment program: Gene Puckhaber of Somerset, Wisconsin; John Paprocki of Wausau, Wisconsin; Jenny Able and Mary Killinger of Phillips, Wisconsin; Jack Werner of Menomonee Falls, Wisconsin; and Mike Friedman of Milwaukee, Wisconsin. Sam Mason of Philadelphia, Pennsylvania has knowledge of information related to the negotiations and future payment program.
In exchange for the assignment of the Marquip notes, defendant arranged for payments to be made in the form of Barry-Wehmiller Group, Inc. stock and cash. These payments were to be calculated on the basis of a formula outlined in the agreement, referred to as the "future payment program." Only plaintiffs and their son Karl participated in the future payment program, resulting in a transfer of $2,000,000 in Marquip notes to defendant. Because Lynda Ludwig, Dan Ludwig and Dean Marschke did not elect to participate in the future payment program, their Marquip notes did not constitute part of the $2,000,000.
In 2004, plaintiffs and defendant had a disagreement about the amount due under the future payment program. On May 13, 2009, Karl Marschke assigned his claims under the program to plaintiffs. The assignment allows plaintiffs to "collect all sums that are due under the Sale Agreement dated September 14, 2000 between Sellers and Barry-Wehmiller Companies, Inc." Although the assignment included signature lines for all of the Marquip note holders, only Karl signed the document.
Plaintiffs' attorney filed suit in the Circuit Court for Price County, Wisconsin between 1:45 pm and 2:15 pm on May 14, 2009. Defendant removed that action to this court on June 11, 2008. At 5:22 pm on May 14, 2009, defendant filed a concurrent declaratory action in the United States District Court for the Eastern District of Missouri. The Missouri action names as defendants all those who possessed Marquip notes. After filing an answer to the complaint in that action, plaintiffs, the Marschkes and the Ludwigs filed a motion to dismiss or in the alternative to stay proceedings in the Missouri suit and transfer the case to this court.
A. Motion to Transfer
Defendant contends that transfer to the Eastern District of Missouri is warranted because it is the more convenient forum and because the action filed in Missouri would allow for a full adjudication of the dispute, serving the interests of justice. Plaintiffs dispute both of defendant's contentions. They contend that this court is in fact the more convenient venue, emphasizing their Wisconsin connections. Plaintiffs also argue that because they were the first to file a suit and are the "natural plaintiffs," their choice of forum should be given deference. In the alternative, plaintiffs ask that this court stay the proceedings in this case until the United States District Court for the Eastern District of Missouri renders a decision on nearly identical motions to transfer venue to this court and to dismiss the Missouri case. The parties do not contest that venue is appropriate in the Eastern District of Missouri.
28 U.S.C. § 1404(a) provides that "[f]or the convenience of the parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought." When weighing a motion to transfer venue under § 1404(a), a court must consider whether the transfer serves the convenience of the parties and witnesses and will promote the interests of justice. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986). The movant has the burden of showing that the transferee forum is clearly more convenient. Id. at 220. The question to be resolved is whether plaintiff's interest in choosing the forum is outweighed by either the convenience concerns of the parties and witnesses or the interests of justice. Roberts & Schaefer Co. v. Merit Contracting, Inc., 99 F.3d 248, 254 (7th Cir. 1996).
The analysis of the convenience of the parties and witnesses involves an individualized, case-by-case consideration. Van Dusen v. Barrack, 376 U.S. 612, 622 (1964). Evaluating the interests of justice typically involves factors that relate to the efficient administration of the federal court system and includes considerations such as insuring a speedy trial, tying related litigation together and having the trial before a judge who is familiar with the applicable law. Heller Financial, Inc., 883 F.2d at 1293.
1. Convenience to the Parties and Witnesses
On balance, it appears that neither forum is more convenient than the other for the parties. Neither side argues that travel to the other forum would impose an especially heavy burden; all parties have appeared and begun the process of litigation in both forums. Although many of the documents at issue are located in St. Louis, Missouri, documents can easily be transferred. Milwaukee Electric Tool Corp. v. Black & Decker (N.A.) Inc., 392 F. Supp. 2d 1062, 1064 (W.D. Wis. 2005) ("technological advancements have diminished traditional concerns related to ease of access to sources of proof. . .").
To demonstrate convenience to the witnesses, defendant is required to "clearly specify the key witnesses to be called" and submit "affidavits, depositions, stipulations, or any other type of document containing facts tending to establish who (specifically) it planned to call or the materiality of that testimony." Generac Corp. v. Omni Energy Systems, Inc., 19 F. Supp. 2d 917, 923 (E.D. Wis. 1998) (quoting Heller Financial, Inc.,883 F.2d at 1293-94. Typically the most important consideration in analyzing the convenience of witnesses factor is whether witnesses will appear only by deposition because they are outside the subpoena power of the court. Both parties point to key witnesses in support of their arguments that their preferred forum is more convenient. Defendant asserts that its witnesses-Greg Conrood, Ron Haglof, Tim Sullivan and Robert Chapman-all reside in Missouri. Plaintiffs name Gene Puckhaber, John Paprocki, Jenny Able, Mary Killinger, Jack Werner, Mike Friedman and Sam Mason as key witnesses whom they intend to call. All but Mason reside in Wisconsin. Plaintiffs suggest that because they have more witnesses and parties, this action should remain in Wisconsin. However, the convenience of witnesses analysis cannot be reduced to a numbers game in which the party who names the most witnesses wins. 15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3851 ("[t]he focus on this point is a qualitative, not a quantitative one . . ."). What is relevant, however, is that defendant's key witnesses are its employees and attorney who negotiated the future payment program. Individuals under the control of a party are expected to voluntarily appear and are not accorded great weight in a transfer analysis. Adams v. Newell Rubbermaid, Inc., 2007 WL 5613420, at *3 (W.D. Wis. 2007). The convenience of witnesses factor favors keeping this case in Wisconsin.
The balance further tips in plaintiffs' favor when their choice of forum is considered. A plaintiff's choice of forum deserves deference when a plaintiff is litigating in his or her home forum, in this case, Wisconsin. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981). A plaintiff typically chooses a home forum for convenience. Id. Taking into consideration all these factors, I conclude that it would be more convenient to keep the suit in the Western District of Wisconsin.
2. Interests of Justice
This case involves two cases that have taken similar procedural tracks. The parties have made identical requests to transfer or dismiss in this court and the district court for the Eastern District of Missouri, raising numerous practical issues relating to which court should defer to the other. With respect to the interests of justice factor, defendant's primary argument is that the Missouri action will adjudicate all of the disputed issues between the parties because it includes not only the plaintiffs in the Wisconsin suit, but all of the parties who held Marquip notes. Plaintiffs counter that because the other parties in the Missouri suit are their children and son-in-law, who either had no interest in the future payment program or assigned their interests to plaintiffs, they are unnecessary parties in this case. As discussed in more detail below, I agree that the additional parties in the Missouri suit are not required parties in this case and I give them little weight in the transfer analysis. Further, as plaintiffs assert, they are the "natural plaintiffs" in the parties' dispute because they are claiming monetary damages resulting from defendant's misinterpretation of the terms of their agreement. The Missouri declaratory action provides no prospect of monetary relief for their damages. While proceeding with two separate actions is a concern, it does not outweigh the other relevant factors. If necessary, the actions may be consolidated for efficiency's sake.
Defendant argues that transfer is necessary to avoid potential jurisdictional issues, but it is in error. It may be that this court would have no personal jurisdiction over Dean Marschke because he is a resident of Minnesota, although that is not self-evident, but the issue is moot. Dean Marschke is not a necessary party in this case.
Finally, defendant contends that because the Eastern District of Missouri is in a better position to interpret Missouri law in construing the agreement at issue, the interests of justice are better served by transfer. This consideration does not warrant transfer to the Eastern District of Missouri in light of the other factors that counsel against it. In the absence of statutory authority to the contrary, a district court sitting in diversity is competent to apply the law of a foreign state. International Paper Co. v. Ouellette, 479 U.S. 481, 500 (1987).
In sum, because defendant has failed to show that the Eastern District of Missouri is the clearly more convenient forum and will best promote the interests of justice in this case, its motion to transfer must be denied.
B. Motion to Dismiss
Defendant has moved to dismiss the present suit under Fed. R. Civ. P. 12(b)(7) for failure to join an indispensable party under Fed. R. Civ. P. 19. Rule 19 is intended to permit joinder of all materially interested parties to a single lawsuit so as to protect interested parties and avoid waste of judicial resources. Askew v. Sheriff of Cook County, 568 F.3d 632, 634 (7th Cir. 2009) (quoting Moore v. Ashland Oil, Inc., 901 F.2d 1445, 1447 (7th Cir. 1990). Dismissal is not the preferred outcome under the rule and courts are reluctant to dismiss for failure to join when doing so deprives the plaintiff of his or her choice of federal forum. Id. (citing Davis Companies v. Emerald Casino, Inc. 268 F.3d 477, 481 (7th Cir. 2001). The moving party has the burden of showing that an absent party should be joined under Rule 19. 5C Wright & Miller, Federal Practice and Procedure § 1359. To discharge that burden, it may be necessary to present affidavits of persons having knowledge of these interests as well as other relevant evidence outside the pleadings. Id.
The first step in determining whether a suit should be dismissed for failure to join an indispensable party is to identify the required parties under Rule 19(a). Askew, 568 F.3d at 635. Rule 19(a) reads in relevant part:
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a). If the non-joined parties fall under Rule 19(a)(1)(A) or either alternative of Rule 19(a)(1)(B), they must be joined unless it is not feasible to do so. Only after making this determination may the court decide whether the required parties are indispensable, making dismissal warranted under Rule 19(b).
According to defendant, plaintiffs' failure to join Dean Marschke, Lynda Ludwig, Dan Ludwig and Karl Marschke implicates all three Rule 19(a) criteria for required parties because they all owned Marquip notes. However, plaintiffs have filed affidavits in which Dean Marschke, Lynda Ludwig and Dan Ludwig aver that they never had an interest in the future payment program and Karl Marschke avers that he assigned his interest to plaintiffs. Defendant submits no rebuttal evidence to show that the non-joined parties have a monetary interest in this suit. Instead, it attacks the validity of the evidence submitted by plaintiffs.
In its reply brief, defendant contends that because Karl Marschke assigned his interest a day before this suit was filed in state court and the agreement failed to provide consideration for the assignment, the assignment was a sham. In support, defendant cites Syms v. Castleton Industries, Inc., 470 F.2d 1078, 1080 (5th Cir. 1972), a diversity case involving a contractual dispute over the sale of stock. In response to Castleton's challenge to diversity jurisdiction, Syms averred that his mother, who had an interest in the stock at issue, was a citizen of Florida, a fact which would have destroyed diversity had she retained her interest. Id. Although Syms's mother was a citizen of New Jersey at the time, Syms and his attorney believed that she was a citizen of Florida and had her assign her interest in the claims to Syms. Id. The assignment was executed several months before plaintiff filed suit and shortly after both sides realized litigation would be necessary. Id. at 1080-81. The court determined that the timing of the assignment of interest and other suspicious activity revealed that the assignment was a sham in order to protect diversity jurisdiction.
As an initial matter, I note that arguments raised for the first time in a reply brief are waived. Carter v. Tennant Co., 383 F.3d 673 (7th Cir. 2004). In any event, the situation in Syms is not analogous to that in the instant case. Karl Marschke's participation in this suit has no affect on diversity jurisdiction because he is a resident of Wisconsin. Further, plaintiffs filed suit in state court. It was defendant that removed this case to federal court. Defendant asserts that plaintiffs executed the assignment solely for the purpose of avoiding having to join another party in this suit. Even if this is true, there is no evidence that Karl Marschke's assignment is invalid or meaningless. In Syms, plaintiff admitted on cross-examination that he never paid his mother for the assignment and that if he did recover in the suit, he would pay his mother her interest in the stocks at issue, making the assignment pointless. Syms, 470 F.2d at 1081-82. There is no evidence in this case that plaintiffs intend to compensate Karl Marschke in the event of recovery or that the parties at issue intended that Karl Marschke would have a continuing interest in the future payment program.
Because defendant has failed to meet its evidentiary burden, I can only conclude that Dean Marschke, Lynda Ludwig and Dan Ludwig never had an interest in the future payment program. Further, I conclude that Karl Marschke effectively assigned his interest in the future payment program to plaintiffs before the filing of this lawsuit, eliminating any monetary interest he had in the future payment program. Given these findings, full relief can be accorded in this case with the two existing plaintiffs. Allowing the instant suit to go forward will not harm the interests of non-joined parties or expose defendant to multiple or inconsistent obligations. The fact that defendant also wants a declaratory judgment giving an official blessing to what plaintiffs and the non-joined parties readily concede in their affidavits is not a reason for dismissing this case. Therefore, defendant's motion to dismiss will be denied.
IT IS ORDERED that defendant Barry-Wehmiller Companies, Inc.'s motion to transfer venue to the Eastern District of Missouri, dkt. #9, and motion to dismiss, dkt. #11, are DENIED.
Entered this 16th day of October, 2009.
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By TwoCircles.net Staff Correspondent
Malappuram: Letters have been sent to all Hajj applicants of this year from the state informing them of their cover numbers, informed the Kerala Hajj Committee. Those applicants who had applied continuously since 2007 and have not been selected yet will be selected directly if they have applied this year. Their cover numbers will bear the code KLR, whereas the code for all others is KLF.
The Committee requested the Hajj applicants to check and ensure the code numbers mentioned in their cover numbers. However, no applicants will be eligible for special consideration if those who had applied and been rejected three years consecutively have applied this year along with others in the same cover.
Those who have not yet received their cover numbers should contact the office of the Hajj Committee immediately along with their name and passport number. The office can be contacted at the phone numbers 0483 2710717 and 0483 2717571.
hajj selection
It is reasonable to give a sure chance for the coming hajj for more than 70 years old.In lot system lots of youngsters getting chance.If you reserve some seats for aged people, there will be no objection from any class.
assalamu alikum
please send 2011 hajj applycation