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United States District Court, W.D. Pennsylvania
February 27, 2015
HARRY D. MARTIN, Plaintiff,v.SNAP-TITE, INC., JOHN S. CLARK, GEORGE P. CLARK AND GARY L. CLARK, Defendants.
JOY FLOWERS CONTI, Chief District Judge.
I. Introduction
This case involves breach of contract and unjust enrichment claims brought by plaintiff Harry D. Martin ("Martin") against defendants Snap-tite, Inc. ("Snap-tite"), [1] John S. Clark, George P. Clark and Gary L. Clark (collectively, the "Clarks"). Martin asserts that he provided the Clarks with extensive management consulting services from December 2008 to April 2012 for which he was never compensated. (ECF No. 7 ¶ 29).
Pending before the court is the Clarks' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 31). Upon consideration of the parties' submissions and because there was an express contract for the services provided by Martin, the Clarks' motion will be granted.
II. Factual Background and Procedural History[2]
Martin was licensed to practice law in Pennsylvania for forty-seven years until retiring at the end of 2004. (ECF No. 38-1 ¶ 2). From the early 1960s until his retirement, Martin practiced with the law firm of Elderkin, Martin, et al. (the "Elderkin Firm"). (ECF No. 38-1 ¶ 3). From his education and years of practice, Martin developed expertise in the fields of corporate law, business law, mergers and acquisitions, tax, commercial real estate and other specialties. (ECF No. 38-1 ¶ 4).
Snap-tite is a manufacturing business located in Erie County, Pennsylvania, and at all times relevant to the instant action, was privately owned and the majority shareholders were members of the Clark family. (ECF No. 38-1 ¶ 5; ECF No. 42 ¶ 2). For several years prior to 1965, Martin was Snap-tite's primary legal counsel. (ECF No. 33-1 at 9, 21, Martin Dep. 33-35, 82-83). In 1965, Martin became a member of Snap-tite's Board of Directors (the "Board"). (ECF No. 42 ¶ 3). Between 1965 and 2004, Martin, through the Elderkin Firm, regularly billed Snap-tite for the legal work he performed for Snap-tite and Snap-tite paid those bills. (ECF No. 42 ¶ 8). During this same time frame, Martin also represented members of the Clark family, including the Estate of George Clark. (ECF No. 42 ¶ 5).
In the mid-2000s, the Board formed a long range planning committee (the "Planning Committee"), which originally included the three Clark brothers (the inside directors), and Zack Savas ("Savas"), David Nevins ("Nevins") and Martin (the outside directors). (ECF No. 42 ¶¶ 25-26). Each member of the Planning Committee was also a member of the Board. (ECF No. 42 ¶ 27). After the death of George Clark, the Clarks decided they wanted to begin considering selling Snap-tite. (ECF No. 42 ¶ 24). The purpose of the Planning Committee was to prepare Snap-tite for sale, and Martin acknowledged that this committee was created "to sharpen up Snap-tite for eventual sale." (ECF No. 42 ¶ 31).
In 2008, Snap-tite engaged Schneider Downs to act as a broker in the sale of Snap-tite. (ECF No. 42 ¶ 35). Schneider Downs worked on a commission basis, receiving expense reimbursement until the ultimate sale of Snap-tite, at which time it would receive an agreed upon commission. (ECF No. 42 ¶ 36). Schneider Downs provided many services as broker, including the preparation of a confidential investment memorandum ("CIM"), contacting potential purchasers, creating a "Data Room" that potential purchasers used to conduct necessary due diligence, and overall management of the sales and marketing process. (ECF No. 42 ¶ 37). Snap-tite also engaged Scott Wornow ("Wornow") as outside legal counsel to represent it, and Wornow participated in drafting a stock purchase agreement for Snap-tite's use. (ECF No. 42 ¶¶ 38-39). Following Wornow's departure from his law firm, Lee Charles ("Charles") from the same law firm, was retained as outside legal counsel. (ECF No. 33-1 at 33, Martin Dep. 129).
Martin and other members of the Planning Committee were involved in various aspects of Snap-tite's sales effort. (ECF No. 42 ¶ 40). Martin contends, however, that his involvement in the sales effort exceeded that of both Savas and Nevins in amount, quality and importance. According to Martin, he played a significant role in the selection and decision to engage Schneider Downs, Wornow and Charles. (ECF No. 33-1 at 26-27, Martin Dep. 101-02, 105-06; ECF No. 38-1 ¶ 24). Martin claims that he provided valuable services complementing the work of Schneider Downs, including extensive revisions of the CIM, as well as gathering, organizing and presenting financial information about the company. (ECF No. 33-1 at 26, Martin Dep. at 101-04). Martin further contends that he performed extensive work in revising, editing, and improving the draft stock purchase agreement prepared by Wornow. (ECF No. 33-1 at 33, Martin Dep. at 129-30).
Defendant John Clark agrees that Martin was responsible for bringing Wornow in as outside legal counsel, and that Martin also interviewed Charles. (ECF No. 33-6 at 2-3, J. Clark Dep. 8, 13). He acknowledges that Martin worked on document preparation with Wornow while Nevins did not, but indicated that Nevins was copied on all important documents. (ECF No. 33-6 at 3-4, J. Clark Dep. 14, 17).
The efforts to sell Snap-tite in 2008 failed due to the economic downturn in the United States. (ECF No. 42 ¶ 41). According to the Clarks, between 2008 and 2010 Snap-tite, through its Planning Committee, continued to position Snap-tite for sale, and ended up selling its Hose Unit. (ECF No. 42 ¶¶ 42-43). Martin claims that his efforts in readying Snap-tite for sale during this period exceeded those of the Planning Committee as a whole, and that he provided substantial assistance in the pricing of the assets of the Hose Unit, as well as negotiating with the buyer and documenting the transaction. (ECF No. 33-1 at 26-27, 30, Martin Dep. at 104-05, 117-20).
In 2010, Snap-tite increased its efforts to once again sell the company. Negotiations occurred with United Technologies, a potential buyer, but no sale was consummated. (ECF No. 42 ¶ 44). Martin contends that he provided significant assistance in dealing with United Technologies, including evaluating offers, attending meetings, and developing strategy for the sale, and that no other director, except the Clarks, played any significant role in the negotiations and analysis. (ECF No. 33-1 at 31-32, Martin Dep. 121-26).
Ultimately, Parker Hannifin was identified as a potential buyer of Snap-tite, and it purchased Snap-tite in April 2012. (ECF No. 42 ¶ 55). In connection with this sale, Martin states that he provided the following services to Snap-tite:
Negotiations, tax advice, document preparation, and supervision of legal and investment banking services for the potential sale of stock to Parker Hannifin
Extensive advice, support, and direction to counsel retained by the defendants to negotiate and complete the Stock Purchase Agreement with Parker Hannifin
Reviewing, commenting upon, and revising all transaction documents, including the Stock Purchase Agreement ultimately used in the sale to Parker Hannifin
(ECF No. 38-1 ¶ 21(e)-(f), (k)).
Martin was initially paid $500.00 per meeting to compensate him for his service on the Board. (ECF No. 41 ¶ 9). Martin's compensation for serving on the Board increased to a flat fee of $32, 000 per year, although the parties dispute the date this increase occurred. (ECF No. 42 ¶ 10). In addition to his Board service fee, Martin received other payments from Snap-tite over the years, the nature of which the parties dispute. According to Martin, he received payments from Snap-tite for consulting work he performed, above and beyond any services he provided as a director. (ECF No. 33-1 at 36-39, Martin Dep. 141-53). Each year between 2005 and 2008, Martin would inform one of the Clarks about what he believed to be the amount Snap-tite owed him for the work he performed the previous year, the Clarks would agree to this amount, and Snap-tite would pay him in the succeeding year. (ECF No. 42 ¶ 15).
Snap-tite paid Martin an average of $107, 625 per year for work performed from 2005 through November 2008. (ECF No. 42 ¶ 18). This average includes $75, 000 that Martin was paid in 2009 for work performed during 2008 as part of his specific sales efforts. (ECF No. 43 ¶ 10). Specifically, Martin was paid the following amounts according the 1099 Forms provided to him by Snap-tite:
(ECF No. 38-1 ¶ 13).
It is undisputed that after March 2009, Martin received only $32, 000 per year for his Board service. (ECF No. 42 ¶ 20). Martin contends that between December 2008 and April 2012, he spent roughly 2, 000 hours working on Snap-tite projects. (ECF No. 38-1 ¶ 22). According to Martin, just prior to Thanksgiving of 2011, he informed the Clarks that he believed he was owed additional compensation for the services he provided since 2009 in preparing Snap-tite for sale. (ECF No. 33-1 at 41, Martin Dep. 163-64). Martin stated that he informed the Clarks that he thought he "should be paid some more money" and mentioned a couple of "special contributions" that he felt made the deal a "lot better for everybody." (ECF No. 41 at 41, Martin Dep. 164). Martin did not request a specific amount, however, and acknowledged that he "had no number in mind at that time." (ECF No. 33-1 at 42, Martin Dep. at 166). Martin indicated that the Clarks did not "say much about it, " other than stating he had done a great job. (ECF No. 33-1 at 41, Martin Dep. 164).
In March 2012, Martin sent the Clarks the following letter:
I believe that I am entitled to a bonus because of my contributions to enhancing shareholder value. I have never raised this issue before because it is only now that Snap-tite shareholders are actually going to realize value for their shares.
I feel that I have made two major contributions. First, I was a key to Snap-tite being able to acquire Autoclave. The sale of Autoclave was "rigged" to limit competition to the offer of the management group. Parker, Shwaglock, and other likely prospects, never learned of Autoclave's sale. I learned of it, alerted your father, and got Tom Doolan at National City to issue a letter supporting Snap-tite's ability to finance the purchase. My relations with the Levinson's, and bringing Joe Allison on our team, contributed to Snap-tite's ability to beat out the management group.
Second, I was the one who thought to combine the reduced value of Snap-tite's stock in your father's estate with the availability of the life insurance case value and the on-going premium cost, to put Snap-tite in a position to redeem the estate's stock, and eventually the other stock under the option plan.
Without these two contributions, Snap-tite's shareholders would be only able to realize several thousand dollars per share for their stock rather than the $11, 000 per share realized in the sale price and liquidating dividends over the last several years.
There were other contributions I made toward the eventual price realization, such as insisting on emphasizing Snap-tite's continued growth from 2008 in the CIM executive summary instead of ignoring it, or burying it on page 42, and pressing to eliminate the unfunded pension liability as a long term debt, that added millions to the eventual price realized.
This leads me to the harder part-putting a dollar amount for my contributions. This is awkward for me to press my own advantage while reducing the advantage for the Clark family. As you know, I have spent over 50 years advocating and planning for the Clark family interest.
I came up with an amount of $300 per share, which results in a substantial reward to me in recognition of my contribution to this successful effort, and is on the part of the Clark Family and other shareholders, an amount that will not impact them substantially considering that the shareholders are receiving approximately $11, 000 dollars per share.
In the end, I count on your fairness and appreciation of my part in this venture. (ECF No. 33-9).
With respect to the Autoclave transaction referred to in Martin's letter, it is undisputed that the acquisition of Autoclave occurred in 1995. (ECF No. 42 ¶ 85). Martin was Snap-tite's counsel in 1995 and represented Snap-tite in that transaction, and the Elderkin Firm was paid for the legal work Martin provided as part of that transaction. (ECF No. 42 ¶ 87). Martin was also paid through the Elderkin Firm as the attorney for the Estate of George Clark with respect to the stock redemption. (ECF No. 42 ¶¶ 88-89). Martin claims, however, that he was never paid for the non-legal business consulting services he provided with respect to those transactions. (ECF No. 38-1 ¶¶ 9-10).
According to the Clarks, at no time did they agree to pay or enter into any contractual arrangement whereby they agreed to pay Martin a bonus or other compensation for consulting work performed by him between 2009 and 2012. (ECF No. 33-4 ¶ 26; ECF No. 33-5 at 20, G. Clark Dep. at 80). The only compensation Snap-tite agreed to pay Martin was $32, 000 per year for his Board service, which included his work on the Planning Committee. (ECF No. 33-4 ¶¶ 11-12, 18-19, 23, 26). The Clarks are of the view that Martin did not put forth any more effort than any other director with respect to Snap-tite's sales efforts, and do not believe that Martin did anything beyond what he was already being compensated for as a Board member. (ECF No. 33-5 at 20, G. Clark Dep. 77-78).
The Clarks contend that Nevins was considerably more involved than Martin in readying Snap-tite for sale. (ECF No. 40-1 ¶ 13). According to the Clarks, Nevins led the due diligence with the Irish auditors and assisted the environmental experts who traveled to Ireland. (ECF No. 40-1 ¶ 11). Charles indicated that Nevins provided valuable insight involving Snap-tite's Irish subsidiary and attended a meeting in Erie while Martin did not. (ECF No. 40-2 ¶¶ 5, 8-9).
The Clarks assert that any non-Board service payments Martin received from Snap-tite between 2005 and 2008 were either for legal services Martin provided while at the Elderkin Firm, or for specific legal work performed for Snap-tite shortly after he retired. (ECF No. 33-4 ¶ 10, ECF No. 33-5 at 17, G. Clark Dep. 67-68). The Clarks maintain that these payments were spread out over time pursuant to Martin's request. (ECF No. 33-5 at 18, G. Clark Dep. 69). With respect to the $75, 000 payment made to Martin in early 2009, the Clarks acknowledge that it was not for legal services or a Board fee. (ECF No. 33-6 at 8, J. Clark Dep. 35). The Clarks state that in late 2008, Martin requested $75, 000 for work he had performed during that year as part of his specific sales efforts. (ECF No. 43 ¶ 10). The Clarks indicated that "[w]hile [they] were under no obligation to do so, " they agreed to make this "one-time payment." (ECF No. 43 ¶ 10).
Based upon the preceding events, Martin filed the instant lawsuit on July 19, 2012, asserting a breach of an express contract (Count I)[3], or, alternatively, a breach of an implied contract (Count II), seeking consulting fees in the amount of $1, 640, 000. (ECF No. 7 ¶¶ 36-47). Martin also alternatively asserts an unjust enrichment claim (Count III) measured by the value of consulting services rendered by him in the amount of $1, 640, 000. (ECF No. 7 ¶¶ 48-56). Finally, Martin asserts an unjust enrichment claim (Count IV) based on the increase in value of Snap-tite's stock at the time of its sale in the amount of $4, 000, 000. (ECF No. 7 ¶¶ 57-68).
Presently pending before the court is the Clarks' motion for summary judgment. (ECF No. 31). A supporting brief, concise statement of material facts, appendices, counter statement of material facts, a reply brief and a combined statement of material facts were also filed by the parties. (ECF Nos. 32-33, 37-40, 42). Accordingly, the matter is ripe for disposition.
III. Standard of Review
Federal Rule of Civil Procedure 56 provides in relevant part:
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion
(c) Procedures.
(1) Supporting Factual Positions . A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
FED. R. CIV. P. 56(a), (c)(1)(A), (B). The Third Circuit Court of Appeals has stated:
Rule 56 of the Federal Rules of Civil Procedure "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; see Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) ("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof.") (citing Anderson, 477 U.S. at 248; Celotex Corp., 477 U.S. at 322-23).
[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine dispute' for trial. Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The court must rely on the substantive law to identify which facts are material. Abington Friends Sch., 480 F.3d at 256 (citing Anderson, 477 U.S. at 248).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party, and must draw all reasonable inferences and resolve all doubts in favor of the nonmoving party. Doe v. Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001); see Woodside v. Sch. Dist of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001); Heller v. Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir. 1999). A court must not engage in credibility determinations at the summary judgment stage. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998).
IV. Discussion
In moving for summary judgment, the Clarks argue that Martin failed to establish an implied contract or an unjust enrichment claim.
A. Implied Contract Claim
Martin claims that an implied contract in fact existed between Snap-tite and him in which Snap-tite was obligated to pay him $1, 640, 000 at the time of Snap-tite's sale to Parker Hannifin for consulting services he provided between December 2008 and April 2012. (ECF No. 7 ¶¶ 41-47). "The elements necessary to form an implied in fact contract are identical to those required for an express agreement." Brunwasser v. United States, Civil Action No. 07-00385, 2008 WL 5216253 at *4 (W.D.Pa. Dec. 11, 2008). The elements are: "(1) the existence of a contract, including its essential terms, (2) a breach of duty imposed by the contract[, ] and (3) resultant damages.'" Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir. 2003) (quoting CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super. Ct. 1999)); Sullivan v. Chartwell Inv. Partners, 873 A.2d 710, 716 (Pa.Super. Ct. 2005). An implied contract has been described in this fashion:
"A contract, implied in fact, is an actual contract which arises where the parties agree upon the obligations to be incurred, but their intention, instead of being expressed in words, is inferred from their acts in the light of the surrounding circumstances. Cameron v. Eynon, 332 Pa. 529, 3 A.2d 423 (1939).' Home Protection Building & Loan Association Case, 143 Pa.Super. 96, 98, 17 A.2d 755, 756 (1941). An implied contract is an agreement which legitimately can be inferred from the intention of the parties as evidenced by the circumstances and the ordinary course of dealing and the common understanding of men.' Hertzog v. Hertzog, 29 Pa. 465, 468 (1857)."
Stephan v. Waldron Elec. Heating and Cooling LLC, 100 A.3d 660, 668-69 (Pa.Super. Ct. 2014)(quoting Martin v. Little, Brown and Co., 450 A.2d 984, 987 (Pa.Super. Ct. 1981)); see Baer v. Chase, 392 F.3d 609, 616 (3d Cir. 2004).
The Clarks argue that summary judgment is appropriate since Martin failed to establish a material issue of fact upon which a reasonable jury could conclude that through the parties' conduct Snap-tite agreed to pay Martin $1, 640, 000 in consulting fees. The court need not inquire into the particulars about whether Martin came forward with sufficient evidence in this regard, however, because the Clarks' final argument is dispositive of Martin's claim.
The Clarks argue that the existence of the express contract between the parties for Martin's Board service precludes the existence of an implied contract for the same services. Baer, 392 F.3d at 616-17 (citing In re Penn. Cent. Transp. Co., 831 F.2d 1221, 1229-30 (3d Cir. 1987)). As stated by the court in Brunwasser :
If there is an express contract, there cannot be an implied in fact contract that covers the same subject matter. Baer, 392 F.3d at 616-17 (citing In re Penn, 831 F.2d at 1229-30; and Klebe v. United States, 263 U.S. 188, 191-92, 44 S.Ct. 58, 68 L.Ed. 244 (1923)); Feldman v. Google, Inc., 513 F.Supp.2d 229, 236 (E.D.Pa.2007). That is, the theories of express contract and implied in fact contract are mutually exclusive. Baer, 392 F.3d at 617. However, the existence of an express contract between the parties does not preclude the existence of an implied contract if the implied contract is distinct from the express one. Baer, 392 F.3d at 617 (citing Atlas Corp. v. United States, 895 F.2d 745, 754-44 (Fed.Cir.1990)). These two types of contracts may coexist only if the terms are different in some form. Baer, 392 F.3d at 617. In other words, the implied contract must be entirely unrelated to the express contract. Id.
Brunwasser, 2008 WL 5216253, at *5 (emphasis added); see Grimm v. Discover Fin. Servs., Civil Actions Nos. 08-747, 08-832, 2008 WL 4821695, at *10 (W.D.Pa. Nov. 4, 2008) ("To be valid, an implied contract must be entirely unrelated to the express contract.'") (quoting Klebe v. United States, 263 U.S. 188, 191-92 (1923)). The critical question is whether Martin demonstrated a genuine factual dispute with respect to whether the alleged consulting services he provided for Snap-tite were unrelated and distinct from his Board service for which he was already compensated.
It is undisputed that Martin was a member of Snap-tite's Board and was paid $32, 000 per year for his services on the Board. It is further undisputed that as part of his Board service, Martin was a member of the Planning Committee since the mid-2000s. All parties agree the Planning Committee was created solely to address the effort to sell Snap-tite. (ECF No. 42 ¶ 31). "The goal of the Long Range Planning Committee was to sharpen up Snap-tite for eventual sale." (ECF No. 42 ¶ 31). Martin agrees that as part of his service on the Planning Committee, he engaged in actions aimed at selling Snap-tite. (ECF No. 42 at ¶ 33). Martin concedes that his efforts on the Planning Committee were an integral part of his Board service:
Q.... Service on the Long Range Planning Committee, did that involve any additional compensation to - let's start to you. Were you paid anything extra for being on that committee?
A. I don't think - no. I considered that as part of being on the board.
Q. And do you know whether David Nevins or Zack Savas were paid anything extra?
A. I don't think they were.
(ECF No. 42 ¶ 34).
Viewing the evidence in the light most favorable to Martin, it is clear that the services he alleges he provided pursuant to an implied contract are unquestionably similar to the services he provided as a member of the Snap-tite Board and its Planning Committee. For example, Martin states he performed the following duties as a consultant:
a. Advising Snap-tite about ways to maximize the value of the company, so the Clarks, as majority shareholders, could achieve the highest sale price possible. This advice included the financial, management, structural, and operational aspects of the company;
b. Negotiations, tax advice, and document preparation for the sale of a Snap-tite subsidiary, Snap-tite Hose;
c. Negotiations, tax advice, document preparation, and supervision of legal and investment banking services for the potential sale of Snap-tite's assets to United Technologies;
d. Identification of other potential buyers after the unsuccessful negotiations with United Technologies;
e. Negotiations, tax advice, document preparation, and supervision of legal and investment banking services for the potential sale of stock to Parker Hannifin;
f. Extensive advice, support, and direction to counsel retained by the defendants to negotiate and complete the Stock Purchase Agreement with Parker Hannifin;
g. Conducting the search for, and due diligence on, legal services for the marketing and sale of the company;
h. Extensive work on the confidential investment memorandum used to market the company;
i. Extensive work on gathering, organizing, and presenting financial information about the company necessary for its marketing and sale;
j. Attending meetings with potential purchasers; and
k. Reviewing, commenting upon, and revising all transaction documents, including the Stock Purchase Agreement ultimately used in the sale to Parker Hannifin.
(ECF No. 38-1 ¶ 21).[4] No reasonable jury could find these duties were entirely unrelated to or distinct from the actions aimed at selling Snap-tite.
Both parties dispute the scope or extent of Martin's work on the Planning Committee in preparing Snap-tite for sale. Martin contends that he spent an extensive amount of time over and above what Nevins or Savas spent, pointing to time entries in Charles' bills, which reflect that Charles consulted with him on a number of occasions. (ECF No. 38-2). The Clarks, however, are of the view that Martin spent no more time on the sale of Snap-tite than any other outside director, and claim that Nevins was actually more involved in Snap-tite's sales efforts than Martin. (ECF No. 40-1 ¶¶13-14; ECF No. 44 at 2, J. Clark Dep. 10). This dispute is not material, however, since whether Martin provided more extensive services than his colleagues on the Board or Planning Committee does not render his service unrelated or distinct. See e.g. Baer, 392 F.3d at 618 ("The alleged implied-in-fact contract completely mirrors the acknowledged express contract's subject matter."); L.P. Consulting Group, Inc. v. United States, 66 Fed.Cl. 238, 242 (2005) (rejecting claim that alleged implied contract work orders that involved specific work within the general description of work performed did not involve a different subject matter, noting that "[t]o rule otherwise would be to eviscerate the principle that an implied-in-fact contract must be entirely unrelated' to an express contract[.]"); ITT Fed. Support Servs., Inc. v. United States, 531 F.2d 522, 528 n.12 (Cl. Ct. 976) ("The implied contract, if it is to be valid, must be entirely unrelated to the express contract."). Plaintiff's claim that he is entitled to more compensation does not transform the express contract into an implied contract unrelated to his Board service. See e.g. Atlas Corp. v. United States, 895 F.2d 745, 755 (Fed. Cir. 1990) (holding that where express contract's price was set, there can be no implied agreement to pay over and above those prices since costs were not "entirely unrelated" to the costs included in the contract prices).
In sum, Martin did not point to any facts from which a reasonable jury could conclude that the services he provided Snap-tite in readying the company for sale were in any way unrelated to his duties as a Board member or as a member of the Planning Committee.[5] Accordingly, summary judgment will be granted in the Clarks' favor with respect to Count II of Martin's amended complaint.
B. Unjust Enrichment Claims
Martin alternatively asserts claims for unjust enrichment. He seeks $1, 640, 000 for the consulting services he allegedly provided Snap-tite between December 2008 and 2013. He further seeks $4 million for services he provided that allegedly increased the amount realized by Snap-tite's shareholders upon the stock sale to Parker Hannifin. In order to prevail on his unjust enrichment claims, Martin must demonstrate the following elements: (1) a benefit conferred on the defendant by the plaintiff; (2) appreciation of such benefit by the defendant; and (3) acceptance and retention of such benefit under circumstances such that it would be inequitable for the defendant to retain the benefit without payment to the plaintiff. EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253, 273 (3d Cir. 2010) (applying Pennsylvania law); AmeriPro Search, Inc. v. Fleming Steel Co., 787 A.2d 988, 991 (Pa.Super. Ct. 2001). "The most significant element of the doctrine is whether the enrichment of the defendant is unjust; the doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff." Id. Instead, "claimant must show that the party against whom recovery is sought either wrongfully secured or passively received a benefit that... would be unconscionable for her to retain.'" Sovereign Bank v. BJ's Wholesale Club, Inc., 533 F.3d 162, 180 (3d Cir. 2008) (quoting Torchia v. Torchia, 499 A.2d 581, 582 (Pa.Super. Ct. 1985)). A claim of unjust enrichment does not apply, however, where an express contract exists. Premier Payments Online, Inc. v. Payment Systems Worldwide, 848 F.Supp.2d 513, 527 (E.D.Pa. 2012) (citing Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 999 (3d Cir. 1987)); see Lackner v. Glosser, 892 A.2d 21, 34 (Pa.Super. Ct. 2006) ("By its nature, the doctrine of quasicontract, or unjust enrichment, is inapplicable where a written or express contract exists.").
Martin's contention that he is entitled, under an unjust enrichment theory, to payment for services performed in connection with readying Snap-tite for sale, as well as the increased value of Snap-tite's stock at the time of the sale, is unavailing. As discussed in connection with Martin's implied contract claim, it is undisputed that he was paid $32, 000 per year for his Board service pursuant to an express contract, which encompassed his service on the Planning Committee, whose sole duty was to prepare Snap-tite for sale. It is undisputed that Martin was Snap-tite's counsel in 1995 and represented Snap-tite in connection with the Autoclave transaction, and the Elderkin Firm was paid for the legal work Martin provided as part of that transaction. Martin was also paid through the Elderkin Firm as the attorney for the Estate of George Clark with respect to the stock redemption. (ECF No. 42 ¶¶ 88-89).
Martin is not entitled to an additional amount in compensation for his alleged consulting services or as a bonus for his efforts in increasing the value of Snap-tite stock when it sold to Parker Hannifin. Similar arguments were rejected by the courts in Ankerstjerne v. Schlumberger, Ltd., 155 F.Appx. 48 (3d Cir. 2005), and Kia v. Imaging Sciences Int'l, Inc., 735 F.Supp.2d 256 (E.D.Pa. 2010). In Ankerstjerne, the plaintiff was employed by the defendant and was paid performance-based bonuses in 2001 pursuant to a written contract that expired on December 31, 2001. Id. at 49. A replacement bonus plan was not implemented until October 2002. Id. at 50. The plaintiff in Ankerstjerne sought a bonus for work performed by him from January 1, 2002 through October 2002, arguing that an implied contract existed between the parties covering the period between January and October 2002. Id. The Third Circuit Court of Appeals rejected this argument, noting that the plain language of the written contract applied only to work performed in 2001 and not 2002. Id.
With respect to the unjust enrichment claim, the plaintiff in Ankerstjerne argued that it was unconscionable that his supervisor promised to pay him pursuant to the expired plan, induced him to work on projects as a result, and then failed to pay him as promised. Id. at 52. The court rejected this argument, noting that the plaintiff was still paid for the work he performed in 2002 at his base salary, which was not inconsistent with the bonus plan. Id. In affirming the entry of summary judgment, the Third Circuit Court of Appeals agreed with the district court that the "plaintiff has not shown that he provided the defendants with anything more than the work he was hired to do." Id. (citing Herbst v. Gen. Accident Ins., Co ., No. Civ. A. 97-8085, 1999 WL 820194, at *9 (E.D.Pa. Sept. 30, 1999) (denying claim for unjust enrichment where "[p]laintiff has not shown that he did anything more than work to the best of his abilities for defendant as he was engaged to do")).
Similarly, in Kia, the plaintiff was hired at a set salary, but claimed that he was told during hiring negotiations that his compensation would be increased when the company became more profitable and that he would be compensated on "par" with the company's owners. Kia, 735 F.Supp.2d at 262-63. The company subsequently was sold, and the plaintiff was dissatisfied with the bonus he received, believing that he should have shared equally in the proceeds received by the five owners from the sale. Id. at 264. The plaintiff in Kia filed a lawsuit asserting, inter alia, an unjust enrichment claim seeking damages in an amount equal to the increased value of the company's stock during his employment. Id. at 264-65. In rejecting this claim, the court reasoned:
As noted above, a plaintiff cannot recover under an unjust enrichment theory where a contract exists between the parties. Thus, Kia's claim presupposes the jury's rejecting the existence of the alleged oral contract between Kia and ISI under which ISI promised him a share of the increased value of the company in exchange for his accepting employment. However, in the absence of this contract, Kia could have no expectation that he would be provided any of the proceeds from the sale of ISI. Indeed, Kia "has not shown that he provided the defendants with anything more than the work he was hired to do." Ankerstjerne, 2004 WL 1068806, at *7; see also Herbst v. Gen. Accident Ins. Co., No. 97-8085, 1999 WL 820194, at *9 (E.D.Pa. Sept. 30, 1999). That his work may have indirectly contributed to the profits realized by ISI's owners upon the sale of the company does not give Kia a legal right to share in those profits under an implied-in-law contract. We will therefore grant defendants' motion for summary judgment with respect to Count XII of the Amended Complaint.
Kia, 735 F.Supp.2d at 269-70.
The court reaches the same result here. In this case all the services Martin provided to Snap-tite were in his capacity as a Board member for which he was paid, or in his capacity as an attorney with the Elderkin firm for which he was paid through the law firm. Lackner, 892 A.2d at 34; Alpart v. Gen. Land Partners, Inc., 574 F.Supp.2d 491, 507 (E.D.Pa. 2008) ("A plaintiff cannot recover for unjust enrichment when an express contract governs the relationship between the parties."). Like the plaintiff in Kia, Martin could have no expectation that he would share in the proceeds of the sale absent an express contract encompassing that expectation. Accordingly, summary judgment will be granted with respect to Martin's unjust enrichment claims asserted in Counts III and IV of the amended complaint.
V. Conclusion
Based upon the foregoing reasons, the Clarks' motion for summary judgment (ECF No. 31) will be granted.
An appropriate order will be entered.
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Gophers are making a strong case to be one of the best defensive teams in the Big Ten.
Granted their schedule hasn't been as tough as others in the conference, but they've shut down nearly every opponent so far, including Georgia Southern in an 86-49 win Friday night at the Barn.
"I thought the offense at the beginning of the game provided the spark," Gophers coach Richard Pitino said. "I thought we got a little cold in the second half there, but we were getting stops, which is the most important part. I keep telling the guys, defend, rebound and run. That's always been kind of my mentality with these guys."
The Eagles' backcourt of Ike Smith (Sun Belt's leading scorer at 21.4 points per game), Tookie Brown and Mike Hughes entered the game averaging a combined 47.5 points this season. But they had just 17 points on 7 for 30 shooting from the field Friday. In fact, Brown and Hughes, two preseason All-Sun Belt guards, had just five points and two field goals between them.
This isn't the first time the Gophers shut down some of the top midmajor guards in the country. Texas-Arlington's Erick Neal had just 12 points on 4-for-14 shooting. Mount St. Mary's Junior Robinson had 16 points on 6-for-14 shooting. Southern Illinois' Mike Rodriguez had nine points on 2-for-6 shooting. NJIT's Damon Lynn, who was the active career Division I scoring leader, had just 12 points on 5-for-24 shooting in Tuesday's 74-68 loss to Minnesota.
It wasn't just the fact that the Gophers kept Georgia Southern's guards from shooting well, either. Smith, Brown and Hughes combined for 10 of the team's 15 turnovers.
Even if the guards get beat, Reggie Lynch is there to protect the rim. He had four of the team's nine blocks. Lynch, the Big Ten leader in blocks (3.8 per game) has 15 blocks in his last three games.
Entering the Georgia Southern game, the Gophers led the Big Ten in field goal percentage defense (35.8) and blocks (6.9), while ranking second in three-point percentage defense (28.1). Those numbers were even better Friday night.
BACKCOURT DOMINATES: On the other side, Minnesota's backcourt players completely dominated their matchup Friday. Nate Mason, Dupree McBrayer and Akeem Springs combined for 48 points with eight of the team's 12 three-pointers. Mason, McBrayer and Amir Coffey combined for 21 assists with just three turnovers. Mason and McBrayer also had eight of the team's 10 steals.
FAN FAVORITES: Freshman Michael Hurt made his first three-pointer of the season Friday. The former Rochester John Marshall standout scored a season-best seven points in six minutes. Junior center Gaston Diedhiou only played four minutes combined in two games this season, but he picked up two rebounds in three minutes against Georgia Southern. All 13 players who suited up played in the game.


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"Relish your 'lizard time' in Villeneuve!" Villeneuve-lčs-Avignon Things to Do Tip by CatherineReichardt
Villeneuve-lčs-Avignon Things to Do: 19 reviews and 52 photos
I just love the sentiment that this wonderful piece of municipal sculpture conveys about Villeneuve's lazy, laid back lifestyle!.
Roughly translated, the associated plaque reads as follows:
"Symbol of the good life in Villeneuve-lčs-Avignon, the lizard invites you to spend some 'lizard time' in our town and discover its history" (excuse the schoolgirl French, but there's a reason why I ended up in a technical profession!)
Couldn't have said it better myself - if you needed persuasion to visit here, then surely this is it!
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text: Bogotá Gallery: Off The Court In Colombia From the WTA stars meeting their fans and taking the stage at the player party to an appearance by a very famous tiger, there was a lot going on off the court at the Copa Claro Colsanitas. Published February 24, 2013 12:00 Fans packed the stands all week for the first clay court event of 2013, the Copa Claro Colsanitas. One of the biggest draws of the week was Jelena Jankovic, who posed here with some of the ballboys. Another star attraction was Paula Ormachea, Argentina's No.1 and a first-time WTA finalist here. There was another grrr-eat guest at the tournament, Tony the Tiger from Kellogg's Frosted Flakes. There was a lot going on for the young ones, too, including this IMG Academy kids tennis clinic. The Copa Claro Colsanitas player party was also a big event. Nina Bratchikova was among the guests. Lourdes Domínguez Lino's two WTA titles both came in Bogotá, first in 2006 and second in 2011. Frenchwomen Mathilde Johansson, Pauline Parmentier and Alizé Cornet at the player party in Bogotá. Colombian No.1 Mariana Duque-Mariño, whose only WTA title came here in 2010, at the player party. Jankovic at the party. The former World No.1 was chasing her 13th WTA title this week, and got it. The spotlight at the player party wasn't just on the band, it was on a very special guest star... Spain's Estrella Cabeza Candela took the stage with the band and showed off some solid rhythm. Topics: 2013, tournaments, news, photos or videos, estrella cabeza candela, mariana duque-marino, pauline parmentier, alize cornet, mathilde johansson, lourdes dominguez lino, nina bratchikova, paula ormaechea, jelena jankovic, bogota [+] More Share this page! Print Email Related photos WTA Elite Trophy Ambassador Stefanie Graf Shines In Zhuhai November 06, 2016 Tennis legend and WTA Elite Trophy ambassador had a busy weekend in Zhuhai, China! Catch up with all her activities - including a visit to city's impressive landmark bridge - right here! Zhuhai Gallery: Round Robin Round-Up November 03, 2016 Catch up on all the action - on and off the court - from the round robin stage at the Huajin Securities WTA Elite Trophy Zhuhai! Kvitova, Konta & Suárez Navarro Shine In Zhuhai Player Party October 31, 2016 Petra Kvitova, Johanna Konta, Carla Suárez Navarro, and more stepped out for the Huajin Securities WTA Elite Trophy Zhuhai's official player party - see all the best photos right here! To The Top 3


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The SGI Management Suite's system health monitoring and management capability collects health status information on fundamental system's functions such as memory, CPU and power. It identifies changes that require action, automatically alerts the system administrator, and provides proactive solutions to correct the problem.
Supercomputer Systems Monitoring and Management
Requirements in HPC Environments
Organizations that implement high-performance computing (HPC) technologies have a wide range of requirements. From small manufacturing suppliers to national research institutions, using significant computing technologies is critical to creating innovative products and leading-edge research. No two HPC installations are the same. "For maximum return, budget, software requirements, performance and customization all must be considered before installing and operating a successful environment."
How to Control Your Supercomputing Programs
Pressures by management for cost containment are answered by improving software maintenance procedures and automating many of the repetitive activities that have been handled manually. This lowers Total Cost of Ownership (TCO), boosting IT productivity, and increasing return on investment (ROI).
InsideHPC Guide To Flexible HPC
While all users of HPC technology want the fastest performance available, price and power consumption always seem to come into play, whether in the initial planning or at a later time. Standard performance measures exist that may or may not relate to an end user's application mix, but it is important to understand the various benchmark results that go into determining the performance of a CPU, a server or an overall cluster.
insideHPC Guide to Production Supercomputing
While HPC has its roots in academia and government where extreme performance was the primary goal, high performance computing has evolved to serve the needs of businesses with sophisticated monitoring, pre-emptive memory error detection, and workload management capabilities. This evolution has enabled "production supercomputing," where resilience can be sustained without sacrificing performance and job throughput.
InsideHPC Guide to Technical Computing
Today's High Performance Computing (HPC) systems offer the ability to model everything from proteins to galaxies. The insights and discoveries offered by these systems are nothing short of astounding. Indeed, the ability to process, move, and store data at unprecedented levels, often reducing jobs from weeks to hours, continues to move science and technology forward at an accelerating pace. This article series offers those considering HPC, both users and managers, guidance when considering the best way to deploy an HPC solution.
Three Questions to Ensure Your HPC Success
Successful HPC computing depends on choosing the architecture that addresses both application and institutional needs. In particular, finding a simple path to leading edge HPC and Data Analytics is not difficult, if you consider the capabilities and limitations of various approaches to HPC performance, scaling, ease of use, and time to solution. Careful analysis and consideration of the following questions will help lead to a successful and cost-effective HPC solution. Here are three questions to ask to ensure HPC success.
Local or Cloud HPC?
Cloud computing has become another tool for the HPC practitioner. For some organizations, the ability of cloud computing to shift costs from capital to operating expenses is very attractive. Because all cloud solutions require use of the Internet, a basic analysis of data origins and destinations is needed. Here's an overview of when local or cloud HPC make the most sense.
Faster SAS Analytics Using DDN Storage Solutions
Parallel file systems have become the norm for HPC environments. While typically used in high end simulations, these parallel file systems can greatly affect the performance and thus the customer experience when using analytics from leading organizations such as SAS. This whitepaper is an excellent summary of how parallel file systems can enhance the workflow and insight that SAS Analytics gives.
Understanding Your HPC Application Needs
Many HPC applications began as single processor (single core) programs. If these applications take too long on a single core or need more memory than is available, they need to be modified so they can run on scalable systems. Fortunately, many of the important (and most used) HPC applications are already available for scalable systems. Not all applications require large numbers of cores for effective performance, while others are highly scalable. Here is how to better understand your HPC application needs.


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Fantastic accommodation options in a magical location on the edge of the Snowdonia National Park in Mid Wales.
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Intimate yurt glamping with mountain views, set in the beautiful rolling countryside of the Powys hills.
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England / Devon
Exclusive use of camp in a private spot on the edge of woodland, with stunning views over the Brede Valley in East Sussex.
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The ultimate glamping holiday experience in contemporary yurts, set in forty acres of beautiful Devon woodland.
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A cosy and spacious Mongolian yurt located on the edge of a fir forest with wonderful views over the surrounding valley.
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Relax in peaceful surroundings in this spacious luxury yurt located near the beautiful Normandy town of Mortain.
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A luxury Mongolian yurt situated in a private field within a protected National Park in Normandy.
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Choose between a yurt, a gypsy wagon or a converted fire truck at this rustic and charming eco-lodge in the Algarve.
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Fantastic off-grid Mongolian yurts on the banks of Loch Ken with on-site activities, cafe and stunning scenery.
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Truly unwind in the glorious natural beauty of the Norfolk countryside in these luxury handcrafted yurts.
England / Norfolk


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POSTED: Mar 17, 2014 4:39 PM ET
Every week, there's a spot in the Power Rankings that no one seems to have earned. There might be a clear top five teams, but no sixth team that's playing all that well.
This week, that spot is No. 3. The Spurs and Clippers are the undisputed top two, with winning streaks of 10 and 11 games, respectively. (The Spurs are No. 1, because they're 6-1 since the All-Star break against teams with winning records, while the Clips are 5-2.) But no other team has really earned the next spot.
The Rockets were playing great, but went 0-3 last week. The Pacers went 3-0, but haven't beaten anybody good in more than five weeks. The Heat beat Houston, but only after losing to Brooklyn and Denver. The Thunder beat the Rockets too, but then got thumped by the Mavs.
Really, beyond the Spurs and Clippers, there aren't many contenders that can be feeling good about themselves right now. But the Chicago Bulls keep plugging along and are 13-4 since Feb. 9, having avenged one of the losses (against the Heat). So they're No. 3 (with a big jump) until another contender proves it has righted the ship.
* * *
• Last week: Upside-down week around NBA propels Spurs to top
• This time last year: With a month-plus left, Heat still streaking, still a firm No. 1 -- Miami's winning streak was at 22 games, the Nuggets had won 11 straight, the Pacers were going through a rough patch, and the Bobcats were the first team eliminated from playoff contention.
• Plus-minus Studs: Chris Paul (LAC) was a plus-64 in four games last week.
• Plus-minus Dud: Jerryd Bayless (BOS) was a minus-61 in four games last week.
• Hero Team of the Week: San Antonio (2-0) -- The Spurs began their week with an impressive back-to-back, beating the Bulls (on the road) and Blazers comfortably.
• Zero Team of the Week: L.A. Lakers (0-2) -- It takes a special kind of bad to earn this spot with just two losses. The Lakers lost to the Thunder and Spurs by a combined 63 points.
• High jumps of the week: Chicago (+6), Atlanta (+4), Cleveland (+4)
• Free falls of the week: L.A. Lakers (-6), Houston (-5), Orlando (-3), Sacramento (-3)
• East vs. West: The West is 246-147 (.626) against the East in inter-conference games, but the East was 11-10 last week (3-1 on Sunday).
• Toughest schedules through Sunday: 1. L.A. Lakers, 2. Utah, 3. Sacramento
• Easiest schedules through Sunday: 1. Indiana, 2. Philadelphia, 3. Detroit
Schedule strength is based on cumulative opponent record, and adjusted for home vs. away and days of rest before a game.
* * *
Pace: Possessions per 48 minutes (League Rank) - Click here
OffRtg: Points scored per 100 possessions (League Rank) - Click here
DefRtg: Points allowed per 100 possessions (League Rank) - Click here
NetRtg: Point differential per 100 possessions (League Rank) - Click here
The league is averaging 96.5 possessions (per team) per 48 minutes and 103.6 points scored per 100 possessions.
* * *
NBA.com's Power Rankings, released every Monday during the season, are just one man's opinion. If you have an issue with the rankings, or have a question or comment for John Schuhmann, send him an e-mail or contact him via twitter.
1.San Antonio (50-16)
Last week: 1
Pace: 96.8 (14), OffRtg: 108.2 (5), DefRtg: 100.4 (4), NetRtg: +7.9 (2)
The Spurs won the race to 50 wins (a mark they've now hit in 15 straight seasons), winning 10 straight games, and are two games into a stretch where they play just one of nine against a team with a winning record. They've outscored their opponents by 24 per 100 possessions with Tiago Splitter on the floor and have shot an absurd 46.1 percent from 3-point range during the streak.
This week: @ LAL, @ SAC, @ GSW
2. L.A. Clippers (48-20)
Last week: 2
Pace: 98.2 (7), OffRtg: 109.3 (2), DefRtg: 101.4 (8), NetRtg: +7.9 (1)
Like the Spurs, the Clips are streaking (they've won 11 straight), with a pretty soft schedule over the next 10 days. Chris Paul has averaged 16.1 points, 10.7 assists and 2.4 steals in 15 games since returning from his shoulder injury, but has shot just 6-for-26 from 3-point range. So he may need a few more of those extra shooting sessions before he can make defenders pay for going under the screen.
This week: @ DEN, vs. DET
3.Chicago (37-29)
Last week: 9
Pace: 92.9 (29), OffRtg: 99.1 (28), DefRtg: 97.8 (2), NetRtg: +1.2 (13)
If Carlos Boozer isn't going to earn his $15.3-million salary with playing time (he's logged 30 minutes or more in only one of his last 15 games), we should definitely have him mic'd up every night. For the second straight season, the Bulls have been better both offensively and defensively with Boozer off the floor, though Taj Gibson has had some rough offensive nights over the last 10 days.
This week: vs. OKC, @ PHI, @ IND, vs. PHI
4. Miami (45-19)
Last week: 4
Pace: 94.3 (24), OffRtg: 109.8 (1), DefRtg: 103.1 (13), NetRtg: +6.7 (5)
The Heat's problems hadn't quite reached the "alarming" level, but Sunday's win over the Rockets, in which their offense got back on track and they executed late, was needed. It's also good to see Ray Allen put up 20-plus in two straight games, shooting 9-for-13 from 3-point range against Denver and Houston. His numbers haven't dipped too much, but he's had some ugly stretches this season.
This week: @ CLE, @ BOS, vs. MEM, @ NOP
5. Indiana (49-17)
Last week: 6
Pace: 95.8 (18), OffRtg: 102.6 (20), DefRtg: 95.6 (1), NetRtg: +7.0 (4)
Though wins over the Celtics, Sixers and Pistons (by an average of just 8.7 points) were no indication that Indiana has turned the corner, and Andrew Bynum's first 36 minutes were no indication that he'll be able to contribute in May, the Pacers have regained a two-game lead over the Heat in the loss column. After playing the Sixers and Knicks, they have five straight games against winning teams.
This week: vs. PHI, @ NYK, vs. CHI, @ MEM
6.Golden State (42-26)
Last week: 5
Pace: 98.6 (5), OffRtg: 104.5 (13), DefRtg: 99.5 (3), NetRtg: +5.0 (7)
The Warriors followed their worst loss of the season (at home to Cleveland) with what Mark Jackson called "as good a win as we've had in three years" in Portland on Sunday. Think their bench play matters? Steve Blake was a plus-36 in their two wins last week and a minus-46 in their two losses. Stephen Curry, meanwhile, was no better than a plus-2 and no worse than a minus-5 in the four games.
This week: vs. ORL, vs. MIL, vs. SAS
7.Oklahoma City (48-18)
Last week: 7
Pace: 98.2 (8), OffRtg: 107.8 (7), DefRtg: 100.5 (5), NetRtg: +7.3 (3)
The Thunder's perimeter-defense problems started before he got there, but OKC opponents have shot 44.2 percent from 3-point range with Caron Butler on the floor. If that sounds familiar, it's because Milwaukee opponents shot 42.0 percent from beyond the arc with Butler on the floor before they waived him, and Clipper opponents shot 40.6 percent on threes with Butler on the floor last season.
This week: @ CHI, @ CLE, @ TOR
8.Houston (44-22)
Last week: 3
Pace: 98.1 (9), OffRtg: 107.9 (6), DefRtg: 102.6 (10), NetRtg: +5.2 (6)
Patrick Beverley should worry less about getting under his opponent's skin and more about putting the ball in the basket. Offense hasn't really been the problem for Houston, but Beverley has made just two of his last 20 3-point attempts. The Rockets have lost three straight (for the first time this season), but their schedule eases up this week. They haven't lost to a team currently under .500 since Jan. 10.
This week: vs. UTA, vs. MIN, @ CLE
9. Memphis (39-27)
Last week: 8
Pace: 92.3 (30), OffRtg: 103.0 (17), DefRtg: 102.0 (9), NetRtg: +1.1 (14)
After ranking first in post-break 3-point percentage through Tuesday, the Grizzlies shot 10-for-41 from beyond the arc in their last three games. But they maintain a one-game lead over the Suns for the final playoff spot thanks to Mike Conley's game-winner in New Orleans. The Grizz rank first in clutch-time NetRtg and wins (they're 26-13) in games that were within five points in the last five minutes.
This week: vs. UTA, @ MIA, vs. IND
10.Phoenix (38-28)
Last week: 10
Pace: 98.3 (6), OffRtg: 106.9 (8), DefRtg: 104.0 (16), NetRtg: +2.9 (11)
After losing three straight and needing all 48 minutes to edge out the Celtics on Friday, the Suns got a huge win in Toronto on Sunday. But they can't be dependent on Gerald Green shooting them in or out of games with a playoff spot on the line, so they could use more consistent production from their bigs. Miles Plumlee has scored in double-figures in just two of his last 20 games.
This week: @ BKN, vs. ORL, vs. DET, @ MIN
11.Toronto (37-28)
Last week: 12
Pace: 94.6 (22), OffRtg: 105.1 (11), DefRtg: 101.3 (7), NetRtg: +3.8 (8)
Steve Novak hit five threes in last Sunday's win in Minnesota, but the Raptors have otherwise missed Patrick Patterson off the bench. They've been outscored in three of their last four games when at least one starter has stepped off the floor and their bench shot 4-for-14 in Sunday's loss to the Suns. With their lead on the Bulls down to a half game, Patterson's injured elbow is set to be reexamined on Monday.
This week: @ ATL, @ NOP, vs. OKC, vs. ATL
12. Dallas (40-27)
Last week: 14
Pace: 96.2 (16), OffRtg: 108.5 (3), DefRtg: 105.6 (23), NetRtg: +2.9 (10)
After an easy win in Oklahoma City on Sunday and having played their best five-game defensive stretch (102.2 points allowed per 100 possessions) since before the All-Star break, the Mavs are looking good for one of the last two playoff spots in the West. They play their next eight games at home. Three of their five remaining road games are against the Lakers, Kings and Jazz.
This week: vs. BOS, vs. MIN, vs. DEN, vs. BKN
13. Portland (43-24)
Last week: 11
Pace: 97.9 (10), OffRtg: 108.4 (4), DefRtg: 104.9 (20), NetRtg: +3.5 (9)
We can confirm now that the Blazers' initial post-break defensive improvement was schedule-aided. After a rough trip and a heartbreaker against the Warriors on Sunday, they're 0-6 against fellow West playoff teams since the All-Star break, having allowed 111.2 points per 100 possessions in the six games. They're back on the road this week, but play just four more games against the West's top nine.
This week: vs. MIL, vs. WAS, @ CHA
14. Washington (35-31)
Last week: 13
Pace: 95.5 (20), OffRtg: 103.0 (19), DefRtg: 102.7 (11), NetRtg: +0.3 (15)
The AARP unit has given the Wizards a real lift. They're 10-3 since Andre Miller joined them, with their bench units scoring 110 points per 100 possessions. Al Harrington hasn't shot well, but is a plus-58 since his return. And Drew Gooden came up huge (21 points, nine rebounds, 8-for-11 shooting, plus-17) in Saturday's big win over Brooklyn. The Wiz are now 5-0 against the Bulls and Nets.
This week: @ SAC, @ POR, @ LAL, @ DEN
15. Brooklyn (33-31)
Last week: 15
Pace: 94.0 (26), OffRtg: 103.2 (16), DefRtg: 104.0 (15), NetRtg: -0.8 (17)
It could have been the Nets' best week of the season. But after beating the Raptors and Heat (in Miami), they blew a double-digit lead in Washington. They've won 15 of their last 17 at home, with one of the losses being one they gave away in the final seconds. But it's looking unlikely that they can get home-court advantage in the first round, and they're 1-4 on the road against the Raptors, Bulls and Wiz.
This week: vs. PHX, vs. CHA, vs. BOS, @ DAL
16. Charlotte (33-34)
Last week: 17
Pace: 95.2 (21), OffRtg: 100.2 (24), DefRtg: 101.2 (6), NetRtg: -1.1 (18)
Gary Neal has scored 18-plus in his last three games and given the Bobcats another outside threat to complement Al Jefferson, though they've been pretty awful defensively in 139 minutes with Neal and Jefferson on the floor together. Still, the Cats have won six of their last seven and eight straight at home, where a victory against Atlanta on Monday would give the East seven teams at or above .500.
This week: vs. ATL, @ BKN, vs. POR
17. Minnesota (33-32)
Last week: 16
Pace: 99.7 (4), OffRtg: 105.4 (9), DefRtg: 103.1 (12), NetRtg: +2.3 (12)
If there's a vet on a non-playoff team who could use this last month to rediscover his game, it's Chase Budinger. He's played just 53 games over the last two years, hasn't found much of a rhythm since returning in January, and went scoreless in just four minutes in Sunday's win over the Kings. Budinger's not a big difference maker, but the Wolves can't afford another empty season from him next year.
This week: @ DAL, @ HOU, vs. PHX
18. Denver (29-37)
Last week: 18
Pace: 100.2 (3), OffRtg: 103.0 (18), DefRtg: 105.1 (21), NetRtg: -2.1 (20)
Ty Lawson joined the 0-for-10-plus club on Saturday, but he and Kenneth Faried (averaging 21.9 points and 9.8 rebounds in March) are the only guys keeping the Nuggets from being the Lakers these days. Darrell Arthur is a 6-foot-9 power forward with 41 points and six rebounds in his last three games. Grabbing zero boards in 24 minutes against the Heat (28th in rebounding percentage) is impressive.
This week: vs. LAC, vs. DET, @ DAL, vs. WAS
19.New York (27-40)
Last week: 22
Pace: 93.0 (28), OffRtg: 105.1 (10), DefRtg: 106.7 (25), NetRtg: -1.6 (19)
Phil Jackson can't change the Knicks' culture and way of doing business fast enough, but he has to be patient in putting together a good basketball team. The cupboard might not be totally empty, though. Rookie Tim Hardaway Jr. averaged 23.3 points on 81% effective FG% in three games last week, as the Knicks continued to take advantage of a very weak stretch in their schedule.
This week: vs. IND, @ PHI, vs. CLE
20. Cleveland (26-41)
Last week: 24
Pace: 95.6 (19), OffRtg: 99.9 (25), DefRtg: 104.8 (19), NetRtg: -4.9 (24)
The Cavs picked up two of their best wins of the season last week (at Phoenix and Golden State), but are still six games in the loss column out of the playoffs, play the Heat, Thunder and Rockets this week, and may have just lost Kyrie Irving for the season. Reminder: This team traded five draft picks for two guys - Luol Deng and Spencer Hawes - who will be free agents this summer.
This week: vs. MIA, vs. OKC, vs. HOU, @ NYK
21. New Orleans (27-39)
Last week: 21
Pace: 94.5 (23), OffRtg: 104.6 (12), DefRtg: 107.1 (26), NetRtg: -2.4 (21)
Anthony Davis is going to be pretty good someday. For now, he's just averaging 32.3 points, 14.3 rebounds and 3.0 blocks over his last six games. The two big shots he hit at the end of regulation on Sunday were from mid-range, where he's shooting 42.2 percent, up from 29.4 percent as a rookie. No player (minimum 100 attempts each season) has made nearly as much of an improvement.
This week: vs. TOR, @ ATL, vs. MIA
22. Atlanta (29-35)
Last week: 26
Pace: 97.2 (12), OffRtg: 103.8 (14), DefRtg: 104.4 (17), NetRtg: -0.6 (16)
Paul Millsap is doing his thing again and the Hawks have won three straight to stop the bleeding. But they still have some work to do to hold off the Knicks. After this note about him having the best shooting season in 32 years, Kyle Korver shot 6-for-8 (4-for-4 from 3-point range) against Denver. When you have the best shooter in the world, great after-timeout plays like this one look even better.
This week: @ CHA, vs. TOR, vs. NOP, @ TOR
23.Sacramento (23-44)
Last week: 20
Pace: 97.0 (13), OffRtg: 103.3 (15), DefRtg: 106.1 (24), NetRtg: -2.8 (22)
Isaiah Thomas broke out of a shooting slump on Sunday and Derrick Williams played one of his best games (against his former team), but the Kings are still winless (0-10) without DeMarcus Cousins (who was out with knee tendinitis) and their only wins on their seven-game trip came against the Bucks and Sixers. We'll have to check to see if those still count in the standings.
This week: vs. WAS, vs. SAS, vs. MIL
24. Detroit (25-41)
Last week: 27
Pace: 97.7 (11), OffRtg: 102.3 (21), DefRtg: 105.6 (22), NetRtg: -3.3 (23)
The Pistons started 8-6 on the road, but are 2-14 away from the Palace since Christmas. They're on the road for 11 of their last 16 games, which is bad news for the Bobcats, who would get Detroit's draft pick if it landed outside the top eight. The Pistons already have the league's eighth worst record, so the chances of Charlotte getting that pick are worse than the chances of a Josh Smith 3-pointer going in.
This week: @ DEN, @ PHX, @ LAC
25. L.A. Lakers (22-44)
Last week: 19
Pace: 100.7 (2), OffRtg: 101.1 (22), DefRtg: 107.3 (28), NetRtg: -6.2 (27)
The Lakers got paid back for their win over the Thunder last Sunday and got beat by a combined 63 points in Oklahoma City and San Antonio. Their own 3-point shooting makes them an occasional spoiler, but their opponents' 3-point shooting has made them a more frequent doormat. They've allowed teams to shoot 71-for-159 (44.7 percent) from beyond the arc over their last six games.
This week: vs. SAS, vs. WAS, vs. ORL
26. Orlando (19-48)
Last week: 23
Pace: 96.2 (15), OffRtg: 99.4 (26), DefRtg: 104.6 (18), NetRtg: -5.2 (26)
The Magic offense has been at its best with Jameer Nelson on the floor and he's averaged 9.8 assists per 36 minutes since the break. But their defense has been at its worst with him on the floor, he's 32 years old, and only two of the $8 million on his contract next season is guaranteed. So you have to think he's playing his final month in Orlando. Only Nick Anderson has played more games for the Magic.
This week: @ GSW, @ PHX, @ UTA, @ LAL
27. Boston (22-45)
Last week: 25
Pace: 95.6 (17), OffRtg: 98.7 (29), DefRtg: 103.9 (14), NetRtg: -5.2 (25)
As the Celtics play out the string, Kris Humphries (a free agent this summer) is getting a little chance to showcase himself. He's averaged 12.9 points and 7.8 boards as a starter over the last 11 games, highlighted by the crazy shot he hit to send Sunday's game in New Orleans to overtime. Jeff Green, meanwhile, continues to tease with big games followed by stinkers.
This week: @ DAL, vs. MIA, @ BKN
28.Utah (22-45)
Last week: 28
Pace: 93.5 (27), OffRtg: 100.6 (23), DefRtg: 108.3 (30), NetRtg: -7.6 (28)
After a brief dalliance with the No. 29 spot, the Jazz returned to No. 30 in defensive efficiency by getting smoked by the Spurs on Sunday. They've been at their worst defensively in the second half of games and have allowed almost 116 points per 100 possessions in second halves since the All-Star break. That's close to just standing on the sideline while your opponent takes whatever shot it wants.
This week: @ HOU, @ MEM, vs. ORL
29. Milwaukee (13-54)
Last week: 29
Pace: 94.1 (25), OffRtg: 99.3 (27), DefRtg: 108.1 (29), NetRtg: -8.8 (29)
If there's a second positive (after the potential of Giannis Antetokounmpo) for the Bucks this season, it's that they got the better end of the Brandon Jennings/Brandon Knight swap. Knight hasn't been great (or all that efficient), but he's been pretty consistent of late, averaging 20.4 points with a 2.6 assist/turnover ratio since Feb. 1. And this dunk (part of a big comeback vs. Orlando) was nice.
This week: @ POR, @ GSW, @ SAC
30. Philadelphia (15-51)
Last Week: 30
Pace: 102.5 (1), OffRtg: 95.7 (30), DefRtg: 107.3 (27), NetRtg: -11.6 (30)
Twenty down, 16 to go, and the Sixers' chances of picking up a win in their last 36 games are dwindling. Thaddeus Young is going to get his numbers, though. His usage rate has jumped over five percentage points since the All-Star break. On Friday against Indy, he became the fourth player (Kevin Durant, Kyrie Irving, Jameer Nelson) to take 30 shots and record 10 assists in the same game.
This week: @ IND, vs. CHI, vs. NYK, @ CHI


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By (author) A.E. Stallings
Format: Paperback
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Hapax by A.E. Stallings
Book DescriptionHapax is ancient Greek for "once, once only, once and for all," and "onceness" pervades this second book of poems by American expatriate poet A. E. Stallings. Opening with the jolt of "Aftershocks," this book explores what does and does not survive its "gone moment" - childhood ("The Dollhouse"), ancient artifacts ("Implements from the Grave of the Poet"), a marriage's lost moments of happiness ("Lovejoy Street"). The poems also often compare the ancient world with the modern Greece where Stallings has lived for several years. Her musical lyrics cover a range of subjects from love and family to characters and themes derived from classical Greek sources ("Actaeon" and "Sisyphus"). Employing sonnets, couplets, blank verse, haiku, Sapphics, even a sequence of limericks, Stallings displays a seemingly effortless mastery of form. She makes these diverse forms seem new and relevant as modes for expressing intelligent thought as well as charged emotions and a sense of humor. The unique sensibility and linguistic freshness of her work has already marked her as an important, young poet coming into her own.
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Book DetailsISBN: 9780810151710
(216mm x 133mm x 9mm)
Pages: 80
Imprint: Triquarterly Books
Publisher: Northwestern University Press
Publish Date: 1-Nov-2005
Country of Publication: United States
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Books By Author A.E. Stallings
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Author Biography - A.E. Stallings
A. E. Stallings was born in 1968 and grew up in Decatur, GA. She studied classics at the University of Georgia and Oxford University. Her first poetry collection, Archalc Smile (University of Evansville Press, 1999) was awarded the 1999 Richard Wilbur Award. Her poetry has appeared in The Best American Poetry series (1994 & 2000) and has received numerous awards, including the 2004 Frederick Bock Prize from Poetry and the 2004 Nemerov Sonnet Award from the Formalist. She has recently completed a verse translation of Lucretius' De Rerum Natura for Penguin Classics. Stallings lives in Athens, Greece with her husband, John Psaropoulos, editor of the Athens News, and their son, Jason.
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