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decided: September 8, 1988.
LASALLE NATIONAL BANK OF CHICAGO, AS TRUSTEE UNDER TRUSTS NUMBERED 40244, 53645, 100385 AND 100386, UNITY VENTURES, AND WILLIAM ALTER, PLAINTIFFS-APPELLANTS,v.THE COUNTY OF DUPAGE, A BODY POLITIC, THE BOARD OF COMMISSIONERS OF DUPAGE COUNTY, A BODY POLITIC, THE VILLAGE OF LISLE, A MUNICIPAL CORPORATION, AND THE VILLAGE OF WOODRIDGE, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 6517--Paul E. Plunkett, Judge.
Richard D. Cudahy, Kenneth F. Ripple and Daniel A. Manion, Circuit Judges.
KENNETH F. RIPPLE, Circuit Judge.
The plaintiffs are owners and developers of a 145-acre parcel of real estate located in DuPage County, Illinois between the Villages of Lisle and Woodridge. They brought the present action under 42 U.S.C. § 1983, in which they allege that the defendants wrongfully violated their constitutional right to make reasonable use of their property. The plaintiffs claim that the defendants have violated the equal protection, due process, and taking clauses of the fifth and fourteenth amendments. The district court dismissed the plaintiffs' claims under the doctrine of res judicata. We reverse.
A. Facts
This lawsuit has been through a long and tortuous litigation history, and its facts are complicated. Fortunately, those facts have been set forth already in an earlier appeal in this court. See LaSalle Nat'l Bank v. County of DuPage, 777 F.2d 377 (7th Cir. 1985), cert. denied, 476 U.S. 1170, 106 S. Ct. 2892, 90 L. Ed. 2d 979 (1986). We borrow heavily from that rendition.
In 1969, the plaintiffs purchased a 145-acre parcel of unincorporated land in DuPage County near Chicago with the intention of developing the area for luxury housing and related commercial businesses. The 145-acre development is known as "Hobson Greene" and lies within a largely unincorporated 1,500-acre tract known as the "Greene Area." The defendant DuPage County (the County), through the defendant Board of Commissioners, governs the unincorporated portions of DuPage County including the area containing Hobson Greene. The other defendants, the Villages of Lisle and Woodridge (Lisle and Woodridge, or, collectively, the Villages), are located within DuPage County on the eastern boundary of the Greene Area.
The plaintiffs allege that the defendants have engaged in a continuing conspiracy over a fifteen-year period to deprive them wrongfully of their right to make reasonable use of their property. Their complaint initially alleged violations of the antitrust laws. In their amended complaint, the operative pleading at this stage of the litigation, they allege that the defendants have violated the equal protection, due process, and taking clauses of the fifth and fourteenth amendments. The plaintiffs allege that the conspiracy involved overt acts in three areas: zoning, water and annexation, and sewage.
Zoning : In 1970, the plaintiffs petitioned the DuPage County Zoning Board of Appeals for a special use permit that would have allowed them to proceed with the development of Hobson Greene. After conducting a public hearing, the Zoning Board of Appeals recommended that the Board of Commissioners deny the petition for the special use permit. On December 24, 1974, the Board of Commissioners adopted the recommendation of the Zoning Board of Appeals to deny the petition. The plaintiffs appealed the denial and an Illinois appeals court ultimately reversed the decision of the Board of Commissioners. The court found that the action of the Board of Commissioners had "little or no relation to the public health, safety and welfare of DuPage County." LaSalle Nat'l Bank v. County of DuPage, 54 Ill. App. 3d 387, 369 N.E.2d 505, 512, 12 Ill. Dec. 8 (Ill. App. Ct. 1977). The plaintiffs allege that "the initial denial of the necessary special use permit and the consequent delay in obtaining the permit were occasioned by the conspiracy among the County, Woodridge, and Lisle." Appellants' Br. at 9.
Water and Annexation : In 1978, the Villages entered into an agreement to divide the unincorporated land lying between their borders for purposes of annexation and the provision of water service. The plaintiffs approached Woodridge about providing water service to the Hobson Greene development. Woodridge conditioned the provision of water service on the plaintiffs' acceptance of Woodridge's annexation of the Hobson Greene development. The plaintiffs, not satisfied with the terms of Woodridge's offer, approached Lisle about water service. Since Hobson Greene lies beyond Lisle's exclusive territory, Lisle refused to deal with the plaintiffs. The plaintiffs allege that "the purpose and effect of this division of territory was to give Woodridge the power to extract whatever demands it desired from any developer in its 'territory' who needed water service," and that, "as a result of defendants' refusal to provide water service to Hobson Greene, plaintiffs were forced to rely on well water." Appellants' Br. at 10. Because the plaintiffs had to resort to well water, they were required to split their development into three phases.
Sewage : In or about 1971, the County and the Villages decided to consolidate the ownership and management of their various sewage treatment facilities. To this end, the County purchased the sewage treatment facilities of each of the Villages and agreed to provide sewage treatment service to the Villages. Among the provisions in the sales agreements was one reserving for the Villages the right to determine which users outside the Villages would receive sewage treatment service from the sewage treatment plant the Villages were selling to the County. The agreements also specified that, in the event new sewage treatment connections had to be rationed, the Villages would each have a right of first refusal to a certain number of connections.
The plaintiffs needed sewer permits from the Illinois Environmental Protection Agency (IEPA) and the County to construct sewer lines and to connect them to a sewage treatment plant. The plaintiffs received the necessary connection permits from the IEPA for Phase One and Phase Two of Hobson Greene on February 8, 1979 and January 31, 1979, respectively. Each permit was valid for two years, which meant that the plaintiffs could preserve their rights by laying sewer pipe any time before early 1981.
In 1979, the contingency contemplated in the sales agreements between the County and the Villages occurred when the IEPA determined that the consolidated DuPage County sewage treatment plant was overburdened. The IEPA sought to place a freeze on all further connections to the sewage treatment system until capacity was increased. At this point, another developer in the County, Corporate West, brought suit in the Circuit Court of DuPage County against the IEPA, the County, Lisle, and Woodridge. In this suit, Corporate West sought a declaration that it could connect its development to the Lisle-Woodridge plant regardless of the IEPA's action placing the plant on restricted status. The IEPA then filed a cross-claim against the County, Lisle, and Woodridge in which it sought to enjoin them from issuing further building or connection permits. Corporate West ultimately was allowed to connect its development to the plant and was dismissed from the suit.
The IEPA then negotiated a settlement of its cross-claim with the other defendants under which it agreed to allow a limited number of new connections if the County would take certain steps to upgrade its treatment facility. The County and Villages agreed on a formula for dividing additional connections according to the following percentages: thirty-eight percent to Lisle, thirty-four percent to Woodridge, and twenty-eight percent to unincorporated portions of DuPage County. The agreement was subsequently embodied in a state circuit court decree, Corporate West Development, Inc. v. Illinois Environmental Protection Agency, No. 79 MR 257 (Cir. Ct. DuPage County Aug. 13, 1980) (Corporate West). The plaintiffs were not given notice or an opportunity to be heard prior to entry of the Corporate West decree even though they had preexisting valid permits from the IEPA. The twenty-eight percent allotted to the County for unincorporated areas was not sufficient to meet the needs of the Hobson Greene development. Consequently, the plaintiffs sought and were granted leave to intervene in the Corporate West suit. Their original intervention petition sought only injunctive relief and ultimately was mooted by the construction of a new sewage treatment plant with sufficient capacity to treat all the sewage generated by Hobson Greene. The state trial court's dismissal of that original petition, however, was without prejudice, and the plaintiffs subsequently filed an amended intervenor complaint asserting a section 1983 claim for damages arising out of the sewage controversy. The state court dismissed the amended intervenor complaint because it determined that the plaintiffs had not been injured by any of the defendants' actions. At issue in this case is whether the state court's judgment dismissing the plaintiffs' amended intervenor complaint in the Corporate West suit bars the present suit under the doctrine of res judicata.
B. Procedural History
1. The Illinois state court action
The Corporate West case was filed on May 31, 1979 in the circuit court in DuPage County. The plaintiffs moved to intervene on October 10, 1980 and fully participated thereafter. The purpose of the plaintiffs' intervention was to challenge the court's August 13, 1980 order, which allocated additional sewer capacity among the defendants, as a violation of the plaintiffs' rights to their IEPA sewer permits. The factual basis for the Corporate West complaint was limited to the defendants' alleged denial of sewage hookups and the events surrounding the entry of the Corporate West decree. Events concerning zoning and water and annexation were not at issue in that suit.
The plaintiffs' original intervenor complaint was dismissed as moot on May 13, 1984 with leave to amend. On June 11, 1984, the plaintiffs filed an amended intervenor complaint that sought damages for alleged violations of the due process, equal protection, and taking clauses of the fifth and fourteenth amendments. The defendants filed several motions to dismiss the amended intervenor complaint. The state trial court granted the defendants' third motion to dismiss. In an opinion by Judge Peccarelli, issued on December 16, 1986, the trial court found that:
5. [The plaintiffs were] never prohibited from exercising [their] rights, under the 1979 permit, to construct and connect [their] sewer line to the Lisle and Woodridge Plant by the August 13, 1980 Order of this Court or otherwise. During the existence of the permit, [the plaintiffs] never obtained a judicial or administrative judgment as to the status of the 1979 permit, nor constructed and attempted to connect [their] sanitary system to the Lisle and Woodridge Plant.
6. [The plaintiffs were] never injured in fact in [their] rights under the 1979 permit because [they were] never actually refused the right to connect. In fact, during the existence of the permit, the structural work necessary to connect with the Lisle and Woodridge Plant, and permitted by [their] permit, had not even been started by [the plaintiffs].
7. [The plaintiffs'] 1979 permit expired on its own terms on January 31, 1981, extinguishing [their] rights thereunder.
8. For the foregoing reasons, [the plaintiffs were] never injured in fact; no justiciable issue is presented herein; [the plaintiffs have] no standing to bring this action.
Corporate West Dev., Inc. v. Illinois Envtl. Protection Agency, No. 79 MR 257 (Cir. Ct. DuPage County Dec. 16, 1986); Appellees' Supp. App. at 277-78.
On December 11, 1987, the Appellate Court of Illinois affirmed the circuit court's dismissal of the amended intervenor complaint. See Corporate West Dev., Inc. v. Illinois Envtl. Protection Agency, No. 79 MR 257 (Ill. App. Ct. Dec. 11, 1987); Appellees' Br. at Ex. A. The court found that the plaintiffs did not have standing because they had failed to show that they had sustained, or were immediately in danger of sustaining, some direct injury as a result of the challenged conduct.*fn1 The court reasoned that (1) the plaintiffs had no intention of constructing the on-site interceptors prior to the expiration of their IEPA permits; and (2) even if the plaintiffs had been able to construct the on-site interceptors within the time remaining on their IEPA permits, they had no intention of seeking the connection permits that they claimed they were denied. Moreover, the court found that the plaintiffs never sought, and therefore were never refused, the building and connection permits that they alleged they were denied. Id. at 15-16.
2. The present suit
The plaintiffs filed the initial complaint in this suit on October 26, 1982, in which they alleged violations of the antitrust laws. The district court denied the defendants' motion to dismiss, but, on interlocutory appeal, this court dismissed the antitrust complaint under the state action exemption of Parker v. Brown, 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307 (1943), and its progeny. See LaSalle Nat'l Bank v. County of DuPage, 777 F.2d 377 (7th Cir. 1985). The Supreme Court denied certiorari. 476 U.S. 1170, 106 S. Ct. 2892, 90 L. Ed. 2d 979 (1986). On remand, the plaintiffs sought leave to amend their complaint. The district court denied this motion. The plaintiffs appealed and, on September 19, 1986, this court remanded the case to the district court with directions to consider the plaintiffs' motion to file an amended complaint. R.101 at Ex. C. On April 1, 1987, the district court granted the plaintiffs' motion to file an amended complaint under section 1983 alleging constitutional violations. On July 31, 1987, however, the district court dismissed the plaintiffs' amended complaint under the doctrine of res judicata. The plaintiffs filed a timely notice of appeal.
C. Opinion of the District Court
The district court held that the present suit was barred by the doctrine of res judicata. Applying Illinois law, the court explained that a final judgment on the merits rendered by a court of competent jurisdiction bars the same parties or their privies from relitigating issues that were raised or could have been raised in the prior action. LaSalle Nat'l Bank v. County of DuPage, No. 82 C 6517, mem. op. (N.D. Ill. July 31, 1987); R.128. The district court accepted arguendo the plaintiffs' contention that the present lawsuit is different from the Corporate West action or any other state proceeding involving the same parties. Nevertheless, the court held that res judicata bars not only claims that were presented previously, but also claims that should have been presented in an earlier action but were not. The court concluded that the plaintiffs have had multiple opportunities to allege the whole conspiracy claimed in this suit, the most recent opportunity being in their amended intervenor complaint in the Corporate West proceeding. The court stated:
Plaintiffs were aware of a potential section 1983 claim because they alleged such a claim in the amended intervenor complaint. In that complaint, Plaintiffs had to raise every ground for obtaining damages based on civil rights violations, else be open to a charge of splitting their cause of action.
Id. at 10.
The district court also held that the state court judgment was a final judgment on the merits, contrary to the plaintiffs' assertion that the state court merely decided that the plaintiffs lacked standing in that suit. As the district court explained:
Here, it is clear that Judge Peccarelli's dismissal was "on the merits." He stated that Plaintiffs suffered no injury in fact; and any real injury was self-inflicted. He did use the word "standing," but not in the context urged by Plaintiffs. Judge Peccarelli correctly ruled that only an injured party may bring suit. He held that Plaintiffs had not been injured by Defendants; he did not hold that someone had been injured but that this Plaintiff technically was the wrong party to sue.
Id. at 11-12 (emphasis in original).
In sum, the district court held that the failure to raise a conspiracy claim at any time during the litigation in the Illinois courts, despite repeated opportunities to do so, bars the present action.
A. Res Judicata -- Fundamental Principles
We must decide whether, under the doctrine of res judicata,*fn2 this federal action, based on 42 U.S.C. § 1983, is barred by the previous action in the state court, also premised, at least in part,*fn3 on 42 U.S.C. § 1983. The basic principles governing our inquiry have been set forth recently by Judge Cudahy in Torres v. Rebarchak, 814 F.2d 1219, 1222 (7th Cir. 1987), and therefore can be restated quite briefly here. Section 1738 of title 28 commands that a federal court give the judgments of a state court "the same full faith and credit . . . as they have by law or usage in the courts of such State . . . ." 28 U.S.C. § 1738; see Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 84 L. Ed. 2d 274, 105 S. Ct. 1327 (1985); Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982); Allen v. McCurry, 449 U.S. 90, 96, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980). Consequently, a "state judgment must be given the same res judicata effect in federal court that it would be given in the court of the rendering state." Torres, 814 F.2d at 1222.
Whether the plaintiffs' claims in this action are barred, therefore, turns upon the preclusive effect of the earlier state judgment under the law of Illinois. This court has had several occasions during its recent terms to refer to the Illinois law of res judicata. See, e.g., Wozniak v. County of DuPage, 845 F.2d 677 (7th Cir. 1988); Torres, 814 F.2d at 1222; Kirk v. Board of Educ., 811 F.2d 347 (7th Cir. 1987); Frier v. City of Vandalia, 770 F.2d 699 (7th Cir. 1985); Hagee v. City of Evanston, 729 F.2d 510 (7th Cir. 1984). A reading of these cases makes it quite evident that we have not found it easy to extract from the oftentimes conflicting language in the opinions of the Illinois Appellate Court sufficient guidance to permit us to fulfill our obligation under section 1738. In Torres, however, we set forth those threshold principles that are settled. 814 F.2d at 1222. We now set them forth again in order to identify the area where ambiguity still exists:
1) Under Illinois law of res judicata, a final judgment on the merits rendered by a court of competent jurisdiction bars the same parties or privies from relitigating matters that were raised or could have been raised in the prior action. Id.; see also Wozniak, 845 F.2d at 680. 2) As a general proposition (we shall treat this point with more precision later in the opinion) a final judgment on the merits not only settles issues that actually were litigated in the prior action but also issues that might have been raised in the prior action. Torres, 814 F.2d at 1222.
3) The party asserting the defense of res judicata has the burden of showing with clarity and certainty what was determined by the prior judgment. Any doubt as to what was decided in the earlier action must be resolved against an application of res judicata. Id.
4) The essential elements of res judicata are (1) an identity of parties or their privies; (2) an identity of causes of action in the earlier and in the later suit; and (3) a final judgment on the merits in the earlier suit. Id.
Most of the ambiguity surrounding the Illinois law of res judicata involves the second of these elements -- the identity of causes of action. That element is also at the center of the controversy between the parties in this case.*fn4 We now turn to an examination of that question.
B. The Same Cause of Action Under Illinois Law
In his exhaustive and scholarly treatment of this issue for the court in Hagee, Judge Flaum summarized the state of Illinois law as follows:
The Illinois intermediate appellate courts have produced a wealth of cases on the question of what constitutes a cause of action, but they have not spoken with one voice. Our review of Illinois case law reveals many different formulations of the test to determine whether two suits involve the same cause of action, with no clear trend in any direction. However, despite differences in language, virtually all of these cases can be placed in one of two basic groups.
In the first group of cases, the courts have approached the task of deciding whether two suits involve the same cause of action by looking at the proof required in each suit. This "proof" approach has been stated in numerous ways. For example, one oft-cited standard is whether the same evidence would sustain both actions.
In the other group of Illinois cases dealing with the res judicata doctrine, the courts have taken a "transactional" approach to identifying a cause of action. A court employing a transactional approach will focus not on the type of proof required in each suit, but on the factual setting in which each suit arises. If both suits arise from the same transaction, incident or factual situation, res judicata generally will bar the second suit. In Baird & Warner, Inc. v. Addison Industrial Park, Inc., 70 Ill.App.3d 59, 64, 26 Ill. Dec. 1, 387 N.E.2d 831, 838 (1979), the court explained the transactional approach. It stated, "The mere fact that different claims are alleged is immaterial; the assertion of different kinds or theories of relief still constitutes a single cause of action if a single group of operative facts give rise to the assertion of relief."
729 F.2d at 512-13 (footnotes and citations omitted). *fn5 Since the Illinois Supreme Court had not expressed explicitly a preference for either of these approaches, Judge Flaum turned to that court's "most recent pronouncements . . . with regard to the policies behind the res judicata doctrine and the scope of that doctrine . . . ." Id. at 513.*fn6 The Illinois court had identified, he found, several policies that were fostered by the doctrine of res judicata:
The res judicata doctrine has developed because of "the practical necessity that there be an end to litigation and that controversies once decided on the merits shall remain in repose." Hughey v. Industrial Commission, 76 Ill.2d 577, 582, 31 Ill. Dec. 787, 789, 394 N.E.2d 1164, 1166 (1979). Stated differently, res judicata is designed "to enhance judicial economy by prohibiting repetitive litigation." Spiller v. Continental Tube, 95 Ill.2d 423, 432, 69 Ill.Dec. 399, 403, 447 N.E.2d 834, 838 (1983) (citations omitted). The res judicata doctrine is also designed to protect litigants from the burden of repetitive litigation. Id. On the basis of these policy considerations, the Illinois Supreme Court has summarized the scope of the res judicata doctrine as follows:
The conclusiveness of the judgment in such case [the prior action] extends not only to matters actually determined, but also to other matters which could properly have been raised and determined therein. This rule applies to every question relevant to and falling within the purview of the original action, in respect to matters of both claim or grounds of recovery, and defense, which could have been presented by the exercise of due diligence.
Hughey v. Industrial Commission, 76 Ill.2d at 582, 31 Ill.Dec. at 789, 394 N.E.2d at 1166 (citations omitted).
Id. at 514 (emphasis supplied).
The Hagee court concluded that:
The principle that res judicata extends to all matters within the purview of the original action, whether or not they were actually raised, is tantamount to a rule requiring parties to consolidate all closely related matters into one suit. As such, the principle serves well the interest of judicial economy, and thus it is at the core of the res judicata doctrine.
Id. (footnotes omitted; emphasis supplied). The Hagee panel did not define the term "closely related matters." However, its extraction of two "corollaries" from the foregoing principle gives some guidance to this otherwise amorphous concept:
Two corollaries of that principle are also of fundamental importance to Illinois's res judicata doctrine. First is the rule that a party may not maintain two suits based on the same set of facts by the simple expediency of limiting the theories of recovery advanced in the first. The second rule is that a party may not maintain two suits based on the same set of facts simply by altering the claim for relief from one suit to the next.
Id. (citations omitted). It is important to note that both these corollaries rely on the premise that the two suits in question were based on the "same set of facts." This emphasis on the factual basis for the two suits did not escape the attention of a later panel in Kirk, which suggested that the factual similarities of the two suits was perhaps the harmonizing principle in the Illinois cases. "There is language in Illinois cases which suggests that the 'same evidence' and 'same core of operative facts' tests are the same." Kirk, 811 F.2d at 352 n.8. Consequently, concluded the court, "we are less concerned with the label that the Illinois courts put on their analysis than with the way in which they apply the doctrine." Id. "Illinois cases applying (or, more importantly, declining to apply) res judicata are instructive more for their holdings than for the tests which they purport to apply." Id. at 352.
C. The Present Case
The collective wisdom of our brethren on cases requiring the court to unravel the mysteries of Illinois res judicata doctrine suggests that we focus our analysis on a comparison of the factual undergirding of the two cases at issue. From this perspective, it is clear that the two cases are quite dissimilar.
The instant action alleges a nine-year conspiracy by the defendants to deprive the plaintiffs of the fair use of their land. According to the plaintiffs, this conspiracy was effected by denying the plaintiffs zoning permits in 1971, water access in 1978, and sewage hookups in 1979. By contrast, the plaintiffs' earlier action was as an intervenor in an ongoing sewer dispute between other parties. Although the plaintiffs did file an amended intervenor complaint alleging that the defendants had, by means of the sewer disputes, endeavored to deprive them wrongfully of fair use of their land, that complaint was significantly narrower and different than the present suit. It dealt with sewage hookups alone and did not allege that the defendants had engaged in a multifaceted conspiracy.
Under the "proof" approach, Hagee, 729 F.2d at 512, these two causes of action are not the same. The proof that the plaintiffs would have to offer in this case in order to prevail is significantly different from the proof that was involved in the earlier state action. In the earlier suit, the evidence related to only a single event over a brief time span. By contrast, the present action involves multiple events over a much longer time span. Moreover, the plaintiffs could prove their cause of action in the instant case without relying on any facts at issue in the earlier action. See Cranwill v. Donahue, 99 Ill. App. 3d 968, 426 N.E.2d 337, 339, 55 Ill. Dec. 362 (1981) (causes of action are the same if "every fact necessary for the [first] action is necessary to the cause at bar"). Thus, under the evidence test, these are two different causes of action.
Under the "transactional" approach the same result obtains. The two suits do not arise "from the same transaction, incident or factual situation . . . ." Hagee, 729 F.2d at 513. While the two suits do have one transaction in common, the present suit is much broader in its scope and involves allegations arising out of several transactions that were not at all in issue in the earlier suit. Notably, this case falls within neither of the two corollaries established by the Hagee court to foster "a rule requiring parties to consolidate all closely related matters into one suit." Id. at 514 (footnote omitted). The plaintiffs have not attempted to "maintain two suits based on the same set of facts by the simple expediency of limiting the theories of recovery advanced in the first." Id. Nor have they tried to "maintain two suits based on the same set of facts simply by altering the claim for relief from one suit to the next." Id. Here, the present suit is based on a very different factual scenario and on a very different theory of recovery.
Nevertheless, it is argued that, because the plaintiffs were aware of the factual basis for the present suit at the time they amended their complaint in the state action to include constitutional claims, they were obliged to bring their conspiracy complaint at that time. However, the defendants, who have the burden of establishing the proposition, see Torres, 814 F.2d at 1222, have not been able to demonstrate that the Illinois courts would consider these two factual scenarios so "closely related," Hagee, 729 F.2d at 514, that they would consider a suit based on one precluded if it were not brought in the same lawsuit as the other. See Benton v. Smith, 157 Ill. App. 3d 847, 510 N.E.2d 952, 957, 109 Ill. Dec. 884 (1987) (mere overlapping of facts in two cases, but not the key or operative facts, does not determine the res judicata issue). Indeed, there is authority in Illinois to the contrary. See Fountas v. Breed, 118 Ill. App. 3d 669, 455 N.E.2d 200, 204, 74 Ill. Dec. 170 (1983) (even when permissive joinder is possible, failure to bring both causes of action in the same lawsuit does not bar second action).
Accordingly, we conclude that the present action is not barred by the Illinois court's previous disposition of the plaintiffs' constitutional allegations with respect to sewer hookups. Under Illinois law, the current action does not involve the same cause of action as the previous state court suit.
D. Conclusion
We caution that our holding today that the present action is not barred by the doctrine of res judicata does not preclude the defendants from arguing to the district court that the Illinois judgment precludes, under the doctrine of collateral estoppel, further litigation of certain issues in this action. We also note that the defendants submitted to the district court that this action ought to be dismissed on the ground of abstention. In determining that the defendants' res judicata argument was meritorious, the district court specifically noted that it need not reach the abstention issue. On remand, the district court is, of course, free to address this issue.
The judgment of the district court is reversed.
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Astronauts aboard the International Space Station have been raising zucchini, broccoli and sunflowers in an attempt to establish the feasibility of zero-gravity farming. Only one problem: The homesick astronauts grew deeply attached to the plants and said eating them would have felt like cannibalism. "We considered them crew members. ... It changed our whole experience," says astronaut Don Pettit.
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Since 2002 Perimeter Institute has been recording seminars, conference talks, and public outreach events using video cameras installed in our lecture theatres. Perimeter now has 7 formal presentation spaces for its many scientific conferences, seminars, workshops and educational outreach activities, all with advanced audio-visual technical capabilities. Recordings of events in these areas are all available On-Demand from this Video Library and on Perimeter Institute Recorded Seminar Archive (PIRSA). PIRSA is a permanent, free, searchable, and citable archive of recorded seminars from relevant bodies in physics. This resource has been partially modelled after Cornell University's arXiv.org.
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The Gospel is quite clear: both saints and sinners love God. "Religious" people do not love him, and whenever they can, they crucify him.
Of course, OC.net is not reflective of the Church, but is rather a surreal bubble. I have visited a lot of different parishes around the world and have listened to many hours of AFR...
If anyone knows where he is buried I would like to meet up and go visit his grave with anyone interested.
Friends,I did some detective work. I had to balance myself--if John's priest and community did not know anything about this, then it is not my right to further spread one-sided information. So I beat around the bush. From my investigation:1) Michael exists2) John did die at his computer3) John's priest did not know Michael4) John's priest says that John was a faithful Orthodox Christian who did participate fully in the life of the Church.Let's leave it at that, ok?Dustin
Let's leave it at that, ok?Dustin
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MELBOURNE, Australia: More players revealed match-fixing approaches on Tuesday as the Australian Open Grand Slam tournament came under close scrutiny following claims that corruption in tennis was widespread.
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August 17, 1953
NEWS SYNDICATE CO., Inc.
Plaintiff seeks to recover damages for an alleged libel based upon an editorial published in the November 7, 1951, issue of the defendant's newspaper, The Daily News. Jurisdiction rests upon diversity of citizenship.
Plaintiff moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., with the amount of damages to be later assessed. The defendant cross-moves (1) to dismiss the action upon the ground that the complaint fails to state a claim against the defendant upon which relief can be granted; or, in the alternative, (2) for summary judgment in its favor.
The editorial which gives rise to the present action commented upon a decision by the Supreme Court of the United States in a libel and slander action brought by the plaintiff against the Moore McCormack Lines, Inc. In that action plaintiff sued Moore McCormack Lines, Inc., his former employer, for maliciously giving to the Federal Bureau of Investigation false and derogatory statements which caused him to be discharged from a federal office to which he had been appointed. The defamatory matter complained of was both written and oral and charged the plaintiff with various acts of misconduct. There is no need to specify these charges other than to state they were entirely unrelated to Communistic or subversive activity or affiliation.
Plaintiff's amended complaint had been dismissed by the District Court on the ground that the complaint failed to state a claim upon which relief could be granted, but the Court of Appeals reversed, holding that statements made to the Federal Bureau of Investigation are not absolutely privileged and that if actuated by malice, the privilege is lost.
The Government assumed the defense of the action since it was liable to indemnify the Moore McCormack Lines, Inc. under the wartime general agency agreement between the latter and the War Shipping Administration.
Following the reversal by the Court of Appeals, the Solicitor-General filed a petition for a writ of certiorari. In support of the writ it was urged, at the instance of the Director of the FBI, that the administration of the Government employee and security programs, as well as other phases of law enforcement, would be seriously hampered unless communications by citizens to Government agencies and officials made in the course of official inquiry were protected by absolute privilege and the declarants held immune from libel actions. The Supreme Court, however, denied certiorari on November 5, 1951.
It was this denial which prompted the editorial complained of in the present action.
The editorial appears under the title 'Mustn't Be Beastly to the Bolos'. It comments upon two decisions of the Supreme Court handed down several days previously and relates these to the Communist menace in the United States. The first decision dealt with the question of bail in a prosecution against alleged Communist leaders on the West Coast under the Smith Act, wherein the Court concluded that proper criteria had not been applied in fixing bail.
The second decision referred to was the denial of certiorari in the plaintiff's case. Neither decision was referred to by title, nor were any names mentioned. The editorial, after first commenting upon the bail case, continued:
'The other 'mustn't be beastly to the bolos' decision had to do with people who buzz J. Edgar Hoover's Federal Bureau of Investigation about persons suspected of Communist activities.
'The FBI habitually covers up for such informers as best it can. But if a person thus informed on can catch up with the giver of the tip, the Supreme Court held Monday that he can bring suit for slander or libel, only provided he can show that the information was passed to the FBI with malice.
'We haven't yet met or heard of a genuine American who didn't feel malicious about the domestic Reds. You can't help entertaining some resentment against people who are conspiring to overthrow your Government by force and violence and turn you personally into a slave.
'But if you let your malice move you to tip off the FBI about the doings of some such person, you're laid open by this Supreme Court decision to a damage suit.
'It seems a certainty that the ruling will put a serious dent in Mr. Hoover's pipelines, and thereby impair the splendid service the FBI renders in tracking down traitors.
'Apparently the Supreme Court doesn't yet realize what most of the rest of us have long known- that the Communists mean business, intend to ruin this country, will use any and every means at their disposal to do so, and therefore cannot be effectively handled under all the rules of ordinary American fair dealing.
'Instead of playing into the Reds' hands, isn't it about time to revise some of the rules as regards this very special and dangerous mob?'
The complaint alleges that the foregoing was published 'of and concerning the plaintiff', and by this editorial the defendant meant and intended to mean and was understood by the reading public to mean, that the plaintiff was a person suspected of Communistic activities who had been informed upon to the FBI and had sued the informant for maliciously giving the FBI information about said suspected Communist activities; and further that ordinary rules of American fair dealing should not be afforded by the Supreme Court to such a person as the plaintiff, because he is a member of a very special and dangerous mob, the domestic Reds.
The amended answer, besides denials, pleads that the editorial was fair comment upon matters of public interest and, therefore, privileged, and that it was based on reliable and trustworthy sources and was published in good faith and without malice.
The defendant's position is that the editorial does not name the plaintiff, makes no reference to the facts of the plaintiff's case, and fairly read cannot be deemed to refer to him. It argues that the editorial is nothing more than fair comment upon the Supreme Court decision denying certiorari and as such it is privileged. It also challenges the innuendos. Finally, it denies that the editorial is false and defamatory. The plaintiff naturally contends to the contrary. In support of his motion, the plaintiff has presented items from the New York Times and the New York Herald Tribune on November 6, 1951 (the day previous to the appearance of the editorial in defendant's newspaper) which mentioned Cecil E. Foltz, Jr. and Moore McCormack Lines by name as the parties in the action and gives the gist of the case and the Supreme Court's decision.
First, as to the defendant's denial that the editorial is 'of and concerning the plaintiff.' Ordinarily, whether a written defamatory statement refers to the plaintiff is a question of fact and may be proved by extrinsic evidence. The need for the introduction of extrinsic evidence for such a purpose does not convert a defamatory statement which would otherwise be actionable without proof of special damage into one actionable only on proof of special damage.
The news items which had appeared in the New York Times and the New York Herald Tribune may be introduced to show the condition of the public mind to establish that readers of the editorial necessarily understood that it applied to the plaintiff alone.
Moreover, upon a trial it may be shown that persons, other than those who read the Times and Tribune news items followed the case through the courts and readily recognized that the editorial was intended to and did refer to the plaintiff. Whether the editorial complained of was 'of and concerning plaintiff' is a question of fact to be determined by the jury.
So, too, whether the article is defamatory or susceptible to the innuendos as plaintiff alleges, presents issues of fact.
Though it may be conceded that the reference in the editorial to the Supreme Court decision as one having to do with 'people who buzz J. Edgar Hoover's Federal Bureau of Investigation about persons suspected of Communist activities' does not, as a matter of law, identify the plaintiff as a person so suspected, certainly it would be within the competency of the jury to find that it did. The entire editorial is devoted to the Red danger in the United States. The jury may find that persons reading the editorial, particularly those who had seen plaintiff's name in the contemporary news reports of the case, understood that the information furnished to the FBI charged the plaintiff with suspicion of Communist activity and that his suit was against the informant for maliciously giving such information to the FBI. In point of fact, as already noted, the Supreme Court case wherein plaintiff sued Moore McCormack Lines, Inc. was entirely unrelated to any charge that he was suspected of Communistic activity or affiliation. A jury could properly find that the clause 'the decision had to do with people who buzz J. Edgar Hoover's Federal Bureau of Investigation about persons suspected of Communist activities' purported to reflect the factual basis of plaintiff's suit, that plaintiff was a person suspected of Communist activities who had been informed upon to the FBI. This is in essence the innuendo set out in the complaint. That such a charge published in November, 1951, would tend to cause many to regard him with scorn and hostility, requires no extended discussion. It is enough to make the publication actionable without proof of special damage.
The defendant next urges that the editorial is fair comment on a judicial proceeding and is absolutely privileged. However, the defense of fair comment requires that the facts be truly stated. A jury's findings that the editorial charged the plaintiff as one suspected of Communistic activities would of necessity imply that there was a misstatement or omission of material fact. As such, it is not within the privilege accorded to fair comment.
In the light of the foregoing, it is clear that the motion of the defendant to dismiss the complaint for failure to state a claim cannot prevail.
The basis of defendant's motion for summary judgment is that plaintiff will be unable to establish any actual malice. Here the defendant contends that the allegations of the complaint that the editorial was published 'in a reckless, wanton and careless manner' is refuted by the affidavit of the editorial writer. This issue is one of fact to be disposed of upon trial.
The defendant's cross-motion for summary judgment must likewise be denied.
As to plaintiff's motion for summary judgment, it is equally clear that the issues of fact as to (1) whether the publication referred to the plaintiff, and (2) whether it sustains the innuendos and could reasonably be understood to defame the plaintiff, or whether it was, as urged by the defendant, an impersonal comment on the principle of law involved in the Supreme Court decision and its possible future effect, require its denial.
Accordingly the plaintiff's motions and the defendant's motion are each denied.
Settle order on notice.
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Is this restaurant good for lunch?
Is this restaurant good for dinner?
Does this restaurant have private dining rooms?
Does this restaurant have a full bar?
Is this a dessert shop?
Is this primarily a coffee shop?
Thanks for helping!
A great restaurant with friendly atmosphere and very very good food with very reasonable prices...will visit again soon 😆 keep it up to the management and staff
We were staying at La Timpa Camping, around the corner from this restaurant. The food was out of this world. The restaurant has a set menu for 27-35 euros depending on the courses you order. We were already full with the 10+ plates of antipasto that they brought to our table. For my "primo piato" they actually brought out two...
I went with my friends and it was very poor
Before it was better and cheaper
Happy wok much better and cheaper
We found this restaurant by luck about four years ago and it was in Via Madonna delle Grazie, it was a great restaurant and went a lot of times ,since they open the new premises I noticed that food quality and the service changed drastically,Our last visit was two days ago and again I was very upset with bad food...
The best for seafood lovers lovely plates every item is delicios.Its easy to find with GPS with a large parking area so everyone must be happy after visiting the place.
We have dined at this restaurant several times and every time it was a pleasant experience .Staff always helpful and attentive especially Lorenzo our hero who is always ready to serve us with his delicously prepared sea food antipasti pasta and grills.We come from the island of Malta and we also have good seafood restaurants but nothing matches this superb...
We were recommended this place by the receptionist at our hotel nearby and one is always a bit dubious about such recommendations as our culinary experiences in Sicily was a bit chequered, but we needed have bothered. There is no choice or menu; one is offered what fish is available or what the cook was able to buy fresh that...
You get a lot of fish (that you can take home if you want to) and you can sit either inside or outside which is quite nice.
We had reserved a table inside but since we saw that there were some empty table outside we asked if we could have a look a couple of minutes.
After literally, few minuets...
Whent with family while on holiday we received worst service ever as waiter was so unprofessional give in you wrong info about menu and in a rude way as I was asking deal of day he just replyed that what we got if you like if you like .talking about food the place is overrated as food fish was mostly...
Incredible food!
Do not expect a menu to choose from - you'll get the house special, that is a tone of incredible food.
Save some space for desert!
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United States District Court, C.D. California
September 29, 2014
WARNER/CHAPPELL MUSIC, INC., a Delaware corporation; WARNER-TAMERLANE PUBLISHING CORP., a California corporation; WB MUSIC CORP., a California corporation; UNICHAPPELL MUSIC, INC., a Delaware corporation, and RIGHTSONG MUSIC, INC., a Delaware corporation, Plaintiffs,v.RAP-A-LOT 2K RECORDS, INC. d/b/a Rap-A-Lot Records, a Texas corporation, and JAMES PRINCE, an individual, Defendants.
ORDER DENYING DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES [Dkt. No. 33]
DEAN D. PREGERSON, District Judge.
Defendants in this copyright infringement case have submitted an ex parte application to continue the trial date (set for October 28, 2014), discovery cutoff dates, and the last day to files motions. Defendants' application states that the majority of the parties' time has been dedicated to settlement negotiations, which has left inadequate time for discovery; Defendants' attorney tried another case for two weeks in July, which left him inadequate time for discovery; to date no depositions have been taken in this case, due to disagreements detailed in the Opposition and Reply; and Defendants have recently obtained copies of licenses which might form the basis for summary judgment.
However, none of these is a sufficient reason to continue the trial at this late date. As a general matter, counsel are required to manage their schedules in a way that allows them to complete the discovery work necessary in the time provided by the discovery schedule. The Court has already continued discovery cutoff once (to August 1, 2014) based on a stipulation between the parties, and the Court has also allowed and ordered depositions after the cutoff dates. (Dkt. Nos. 28-31.) On July 23, 2014, parties filed an additional stipulation, proposing to move the discovery cutoff to October 10 and the last day to file motions to September 26. The Court did not issue an order based on that stipulation, but no mention was made in that stipulation of any emergency or unavoidable conflict on the part of counsel.
Instead, many of the concerns raised in that stipulation revolved around issues of expert reports and possible motions based on depositions scheduled for August. These concerns have been rendered moot by the fact that the parties have apparently both failed to adhere to the deposition schedule. Defendants allege that Plaintiffs failed to make their "person most knowledgeable" ("PMK") witness available for deposition. But although that deposition was scheduled to take place August 28, Defendants do not appear to have taken the issue up with the magistrate and waited almost four weeks to file this application with the Court. Defendants have not been diligent in safeguarding their right to discovery. Moreover, Defendants are not entirely innocent in this discovery breakdown, as their own exhibits show that they refused to produce witnesses in apparent retaliation for Plaintiffs' refusal. (Ex. 6, Reply.)
Finally, the emergence of new evidence which might provide grounds for summary judgment is not, by itself, a reason to grant the application, given that Defendants do not attempt to show that they could not have obtained this evidence earlier.
Good cause to continue the trial date and related cutoffs not being found, the application is denied.
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Phototaxis in Euglena Gracilis
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Phototaxis in Euglena Gracilis Abstract The unicellular flagetta Euglena gracilis E gracilis shows positive phototaxis We studied E gracilis to see its effects of photosynthesis under the compound microscope What I came up with is that E gracilis uses photosynthesis to make their food and to have a positive phototaxis While under the microscope we studied the number of E gracilis that went from light to shaded areas Our results were that the E gracilis has a positive phototaxis IntroductionIn this experiment we tested the reaction of E gracilis to light phototaxis What is E gracilis E gracilis is in the Kingdom Protista Phylum Mastiogophora Class Flagelleta Order Euglenophyta and Class Euglenoids Euglenoids are unicellular organisms whose classification as plants or animals can be debated equally either way Euglenophyta 1 They have similar characteristics of both plants and animals They are not related to any algae but because they occupy the same kinds of habitats as algae and are of comparable simplicity Euglenophyta 1 E gracilis lives in marine and fresh waters Their pigment is green a few are colorless- chl ab and carotenoids Euglenophyta 1 The most important Euglenoid parts are the nucleus chloroplasts flagellum cell wall eyespot and cell membrane Algae 1 They are single celled with different layers inside the cell wall They move by one long flagella Some Mastigophorans have many flagella up to six or more E gracilis are plant-like because they have chloroplasts but if the chloroplasts are removed or shaded from sunlight the E gracilis will hunt for food which makes them animal-like too Euglena 1 Euglena are light-sensitive and are a valuable food source for fish and other aquatic animals Euglenophyta 1 E gracilis rely on photosynthesis to survive They need photosynthesis to produce their food One would expect a positive phototaxis Phototaxis is the tendency to move toward light The purpose of studying E gracilis is
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March 14, 2007
ANDRA HARRY, PLAINTIFF,v.PENTAGROUP FINANCIAL, LLC., DEFENDANT.
Before the court is a motion for summary judgment pursuant to Fed. R. Civ. P. 56 by defendant Pentagroup Financial, LLC ("Pentagroup") with respect to plaintiff Andra Harry's ("plaintiff") claim that Pentagroup violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("the FDCPA"). For the following reasons, Pentagroup's motion for summary judgment is granted.
Pentagroup, a collection agency, was engaged to collect an alleged consumer debt of $135.91 owed by plaintiff to Cavalry Portfolio Services, Corp. Affidavit of Arthur Sanders in Support of Defendant's Motion for Summary Judgment ("Sanders Aff.") Exhibit A; Affidavit of James Thorpe in Support of Defendant's Motion for Summary Judgment ("Thorpe Aff.") ¶ 3; Complaint ¶ 9. On May 21, 2004, Pentagroup issued a letter to plaintiff attempting to collect the debt. Sanders Aff. Exhibit A. The letter read, in part, "[i]f payment is not made in a timely manner, further collection activity may be instituted. Your prompt attention to this matter is appreciated." Id. On September 15, 2004, plaintiff filed a putative class action alleging that the aforementioned language contradicted and overshadowed the "validation notice" required by 15 U.S.C. § 1692(g). The validation notice requires that the debt collector include language advising debtors that they have the right to dispute and/or verify the debt within thirty days of receiving the collection letter. Complaint ¶ 13. Defendant, for its part, claims that "[t]he letter at issue contains no language that contradicts or overshadows the validation notice provided in the letter in compliance with 15 U.S.C. § 1692(g)." Sanders Aff. ¶ 6; See also Thorpe Aff. ¶ 3.
I. Standard of Review
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding a summary judgment motion, the court must view all facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
Pentagroup's Local Rule 56.1 Statement asserts that it is undisputed that "[t]he letters issued to a plaintiff is in complete compliance with the Fair Debt Collection Practices Act." Despite being represented by able counsel, plaintiffs' opposition to Pentagroup's motion does not include an affidavit from a plaintiff, nor a Local Rule 56.1 Counter-Statement of Undisputed Facts contesting this statement. Thus, pursuant to this court's local rules, the statement is deemed admitted. See Local R. 56.1(c) ("[a]ll's material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement" of the nonmoving party). However, whether or not the language of a collection letter violates the FDPCA is an issue of law to be decided by the court, and therefore plaintiffs' failure to contest it is not fatal to her opposition.*fn1 See Building Service 32B-J Health, Pension and Annuity Fund V. Vanderveer Estates Holding, LLC, 121 F. Supp.2d 750, 755 n1 (S.D.N.Y. 2000).
II. Alleged 15 U.S.C. § 1692(g) Violations
The FDCPA is a strict liability statute and "a consumer need not show intentional conduct by the debt collector to be entitled to damages." Russell V. Equifax, 74 F.3d 30, 33 (2d Cir. 1996). "The most widely accepted test for determining whether a collection letter violates the FDCPA is an objective standard based on the 'least-sophisticated consumer.'" Colmon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). "The basic purpose of the least-sophisticated consumer standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd." Id.
To accomplish its goals, the FDCPA requires certain language commonly referred to as a "validation notice" to be included in a debt collection letter.*fn2 The purpose of the validation notice is to provide the consumer with information necessary to challenge the debt allegedly owed before making payment to an independent collection agency. See § 1692(g)(a). A debt collector violates § 1692(g) of the FDCPA if it sends the debtor a collection letter that "overshadows or contradicts" or, in some cases, creates confusion as to the consumer's right to dispute the debt. DeSantis v. Computer Credit Inc., 269 F.3d 159, 161 (2d Cir. 2001) ("[e]ven if a debt collector conveys the required information, the collector nonetheless violates the Act if it conveys that information in a confusing or contradictory fashion so as to cloud the required message with uncertainty."); Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643, 660-61 (S.D.N.Y. 2006).
Here, plaintiff contends that Pentagroup's collection letter overshadowed the validation notice by stating "if payment is not made in a timely manner, further collection activity may be instituted." Plaintiff's Memorandum 4. Specifically, plaintiff contends that this statement can be interpreted to mean that plaintiff must pay the debt in full "in a timely manner" overshadowing plaintiff's right to dispute the debt within the statutory period. Moreover, the plaintiff contends that the statement "your prompt attention to this matter is appreciated" compounds the violation because the least savvy consumer would assume this means the debt must be paid before the period to challenge the debt has expired. Plaintiff's Memorandum 4.
Whether the particular wording of a letter violates the FDCPA is an issue of law that can be decided by a court on a motion for summary judgment. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2d Cir. 2003) (finding as a matter of law that the defendant's collection letters were not false, deceptive or misleading to the least sophisticated consumer); Berger v. Suburban Credit Corp., 04 CV 4006, 2006 WL 2570915, *3 (E.D.N.Y. Sept. 5, 2006) ("the Second Circuit has indicated that the determination of how the least sophisticated consumer would view language in a defendant's collection letter is a question of law because the standard is an objective one.").
The court finds that the language in the letter does not overshadow the validation notice and does not violate the FDCPA. In Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir.1998), the Second Circuit found that the debt collector's request for "immediate" payment did not, standing alone, violate the FDCPA. Rather, the court concluded that the debt collector's "violation of the Act consisted of its decision to ask for immediate payment without also explaining that its demand did not override the consumer's rights under Section 1692(g) to seek validation of the debt." Id. at 86. Here, the defendant eschewed from making a demand for immediate payment and only requests "timely payment." Sanders Aff. Exhibit A. Plaintiff makes a semantic argument that "timely" is synonymous with "immediate" or "signifies an amount of time to pay the debt shorter than the thirty-day period to dispute [sic] or seek verification of the same." Plaintiff's Memorandum 3."
Although its primary goal is consumer protection, "courts have consistently applied the least-sophisticated-consumer standard in a manner that protects debt collectors against liability for unreasonable misinterpretations of collection notices." Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993). It is unreasonable to assume that any consumer, including the least savvy among them, would conflate a request for "timely" payment with a request for "immediate" payment. In contrast to the word "immediate," whose common meaning is "occurring, acting, or accomplished with no loss of time, made or done at once" the word "timely" means "done or occurring at a suitable time." See Webster's Third New International Dictionary, 1129, 2395 (2002). Moreover, it would be unreasonable to interpret the language in the letter to require that payment be made in less than thirty days, especially when the validation notice, which clearly informs the reader of her right to dispute the validity of the debt, is only two paragraphs away. Taken together, the only reasonable interpretation of the word "timely" is that the debtor does not have to pay immediately, but may rather wait and exercise her rights during the statutory period allowed for doing so.
In any event, even assuming that an unsophisticated consumer would believe that "timely" means that payment must be made "immediately" or that payment must be made in less than thirty days to forestall additional collection activity, courts have found that similar warnings that do not explain that payment need only be made after the statutory period has elapsed do not overshadow the validation notice. Rumpler v. Phillips & Cohen Assocs., 219 F. Supp.2d 251 (E.D.N.Y. 2002) ("[e]ven though the [l]etter states that payment must be sent in order to prevent further collection activity, nothing in this language 'overshadows' the validation notice at the bottom of the [l]etter."); see also Lerner v. Forster, 240 F. Supp.2d 233, 238 (E.D.N.Y. 2003) ("[i]t does not follow that simply because a collection letter instructs a consumer to contact a debt collector that the validation notice is necessarily overshadowed or contradicted.").
The court further finds that the portion of the letter that reads "your prompt attention to this matter will be appreciated" does not overshadow the validation notice. Again, it would be an unreasonable misinterpretation to find that this language requires that payment must be made immediately. Indeed, the "prompt attention" provided by the recipient could be to notify the sender that the debt is disputed, or to seek the identity of the original debtor. There is no threat attached to Pentagroup's request for promptness. In contrast, the letter at issue in Kline v. Surpas Resources Corp, 98 CV 3830, Slip Op. *2 (E.D.N.Y. July 7, 1999) stated "if payment is not received promptly, we will pursue collection efforts." This is wholly different from Pentagroup's request for "prompt attention to the matter." Sanders Aff. Exhibit A. Being advised to attend to the matter promptly behooves the plaintiff since, if the plaintiff waits more than thirty days to attend to the matter, she loses many of her rights under the FDCPA.
A review of recent decisions demonstrates the large gap between the language of Pentagroup's notice and language courts have found overshadowed the validation notice. In DeSantis v. Computer Credit, Inc., 269 F.3d 159 (2d Cir. 2001), language which "insists on" the debtor either providing a valid reason for failure to make payment or paying the debt overshadowed the validation notice, since the FDCPA requires the debtor to do neither within the thirty-day validation period. Id. at 162. Similarly, the statement "payment due immediately" at the top of the letter has been found to overshadow a validation notice. Aramburu v. Healthcare Financial Services, 02 CV 6535, 2005 WL 990995 *7 (E.D.N.Y, April 14, 2005). Finally, language that would lead the least sophisticated consumer to believe he has foregone his opportunity to request a validation of the debt is a violation of FDCPA. Spira v. I.C. System, Inc., 05 CV 4367, 2006 WL 2862493 *5 (E.D.N.Y., Oct. 5, 2006). In contrast, the court finds that merely requesting "timely payment" and "prompt attention" does not violate FDCPA since it does not overshadow or contradict a debtor's FDCPA rights.
For the reasons stated above, Pentagroup's motion for summary judgment is granted. The case is dismissed without costs to either party.
DORA L. IRIZARRY United States District Judge
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Real Madrid v Chelsea: Blues suffer second defeat under Antonio Conte despite spirited second-half fight-back
31 Jul
In contrast to the fiercely contested nature of last Wednesday's 2-1 victory against Liverpool, Chelsea's clash against the European champions failed to offer the same sort of fireworks.
After initial doubts over whether the game would even take place on account of the weather, the kick-off was finally given the go ahead at the Michigan Stadium much to the relief of the fans. But this relief soon turned to disappointment for those in blue as Antonio Conte's side were blown away by an impressive Real Madrid side – all within the space of one half.
Against the backdrop of North America's largest stadium, the La Liga giants got the ball running not long after the 20th minute. It was Marcelo who drew first blood, embarking on one of his trademark runs down the left before drifting dangerously inwards towards the Chelsea goal.
From the edge of the box the Brazilian was gifted far too much space and time by a sleepy Chelsea defence who were justly punished for their negligence. The Madrid left-back unleashed his shot on goal which found its way past Chelsea's Asmir Begovic thanks to a fortunate deflection.
With the wind in their sails, Los Blancos cranked up the pressure. It wasn't long before that man Marcelo was up to his usual tricks again and following a neat one-two with Marco Asensio, stormed into the Chelsea box from the left-flank. Keeping Nemanja Matic at bay, Marcelo held his cool to fire his second.
For all their effort, the Blues struggled to break down their opposition as they attempted to counter Madrid's overwhelming forward play with their own attacks. Pedro came closest in the first half but a last-second stumble prevented him from getting any form of shot on goal.
Mariano settled it for the Spaniards six minutes before half-time with a strike from 30 yards out which swerved on its way in but really ought to have been saved by the Bosnian keeper.
At 3-0 down, Chelsea looked well on their way for a good beating. However, the introduction of Juan Cuadrado and Michy Batshuayi after the break changed the dynamics of the game.
Madrid made their own changes – bringing in youngsters such as Martin Odegaard and Enzo Ferndandez – which will have certainly handed Conte's side the upper-hand, but the Chelsea newcomers impressed nonetheless.
Batshuayi added a real urgency to the game while Cuadrado threatened with his piercing runs. Five minutes after the whistle had been blown for the second half and Batshuayi came close, turning on a sixpence just outside the Madrid penalty area before releasing an accurate but ultimately weak attempt on goal.
It was not until Eden Hazard had made his long-awaited return to the pitch that the Chelsea fight-back really heated up. With 10 minutes to go, Nathaniel Chalobah slotted the Belgium international in behind the Madrid defence who took the ball around goalkeeper Ruben Yanez to pull one back.
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Despite the scoreline, it was a spirited comeback from the Blues that should give fans plenty to smile about.
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Guy Edward Pearce (born 5 October 1967) is an English-born Australian actor and musician, known for his roles as Leonard Shelby in Christopher Nolan's Memento, Lieutenant Ed Exley in L.A. Confidential, Adam Whitely aka Felicia Jollygoodfellow (a drag queen) in The Adventures of Priscilla, Queen of the Desert, Mike Young in the Australian television series Neighbours and King Edward VIII ('David') in The King's Speech. Pearce has won an Emmy Award, and received nominations for Golden Globe Awards, Screen Actors Guild Awards and Saturn Awards. Pearce was born in Ely, Cambridgeshire. His mother, Anne Cocking (ne Pickering), was a County Durham-born schoolteacher specialising in needlework and home economics, and his father, Stuart Pearce, was a New Zealand-born air force test pilot who died when Pearce was nine. When he was three years old, Pearce moved to Geelong, Australia, where his mother ran a deer farm.
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