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July 6, 2011
ANTOINE HENDERSON, PLAINTIFF,v.K. PURCELL, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding pro se with this civil rights action. Plaintiff has filed a document styled "Reply to Court Order," which this court has construed as motion to compel. Therein, he seeks a court order requiring the defendants to provide him with certain documents, including the Solano County Jail Manual or Training Book.
According to the court's August 3, 2010 discovery and scheduling order, the parties were allowed to conduct discovery up until November 19, 2010; plaintiff needed to file any motion to compel by that date. In the absence of good cause, the court will not modify the scheduling order in this case. See Fed. R. Civ. P. 16(f); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Here, plaintiff has not shown good cause to extend the discovery deadline or modify the scheduling order. Id. at 609 (good cause exists when the moving party demonstrates that he could not meet a deadline despite exercising due diligence).
The court also notes that on May 6, 2011, it granted plaintiff thirty days to file an opposition to defendants' motion for summary judgment. Plaintiff still has not filed an opposition, so in due course the court will issue findings and recommendations on the motion without his opposition.
In accordance with the above, IT IS HEREBY ORDERED that plaintiff's "Reply to Court Order" construed as a motion to compel (Doc. No. 39) is denied.
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/store/catalog/electric-toothbrushes/category/TOOTHBRUSHES_CA_US_SHOPPUB/US/en?navAction=pop&navCount=1> FlexCare Platinum Connected
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text:
Daren Kagasoff
Daren Kagasoff.. I don't care how many teeny boppers like him, that adorable smile gets me every time :)
Daren Kagasoff a.k.a Ricky
daren kagasoff <3 (aka) ricky underwood from secret life
Image detail for -Daren Kagasoff Photo Gallery. HIs character reminds me a bit of Dylan from the original Beverly Hills 90210
Daren Kagasoff Casual Pompadour Hairstyle
Daren Kagasoff. I'm not sure I would have gone with the leather knuckle gloves, but he is badass sexy anyways!
Daren Kagasoff delicious
... daren kagasoff presenters shailene woodley and daren kagasoff pose
Daren Kagasoff photos, including production stills, premiere photos and other event photos, publicity photos, behind-the-scenes, and more.
Georgina Reilly Daren Kagasoff


text: MealTime and SnackTime 1. Is there a peaceful mealtime environment free from distractions, overstimulation, and conflict? 2. Are children allowed and encouraged to relax and enjoy peers' company as they eat? 3. Is there enough space for children to sit comfortably and promote conversation during meals? 4. Is the room or eating space bright and attractive? 5. Is there a staff member who interacts with children while they are eating? 6. Is snacktime long enough so children can decide when they would like to eat? Quiet Time 1. Are there places for children to be alone and relax in comfortable furniture? 2. Are there places where children can be with only one or two other children? 3. Can the mood of an area be changed with the amount of light or by rearranging furniture? 4. Are children given permission and encouraged to relax and slow down for a while? 5. Are staff available to talk with children if need be? Indoor Play 1. Is there an indoor open area large enough for all children to sit, dance, put on a play, exercise, or play together? 2. Does the indoor space support activities for a team or large group as well as for one child or a small group? 3. Are there adequate lighting, ventilation, and sound-absorbing elements to support children's active play? 4. Are children encouraged to participate in exercise and fitness activities? From Great Afterschool Programs and Spaces That Wow! by Linda J. Armstrong and Christine A. Schmidt, © 2013. Published by Redleaf Press, www.redleafpress.org. This page may be reproduced for classroom use only. 12 • Chapter 1 COPYRIGHTED MATERIAL


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Dana Connors
- Taxing Maine's '2 percenters' for education?Seacoastonline.com
- WQuestion 4—Should Maine increase the minimum wage?weeklypacket.comBlue Hill
- Report: Education tax on wealthy Mainers will damage state economypressherald.com
- Report: Maine's workforce needs more immigrantsdothaneagle.com
- Business groups' report says Maine needs more immigrantspressherald.comUnited Kingdom
- PETE TITTL: P.F. Chang's taking a wok on the wild sidebakersfield.comFresno
- Group seeking $12 base wage posted jobs paying $10 an hourpressherald.comPortland
- Maine competes on energy costs, so why 'misrepresent the real facts?'bangordailynews.com
- Here are 3 takeaways from the Bangor workforce development conferencebangordailynews.comPenobscot
- Measures of Stagnation: Years of tracking show Maine isn't making the progress it needsbangordailynews.com
- UMaine's businesses come together to raise state minimum wageusmfreepress.org
- Katahdin chamber to launch smartphone app touting businessesbangordailynews.comPortland
- Maine Turnpike use, revenues zoom to best year everpressherald.comNew Hampshire
- As Maine needs more people, UMaine does its part to bring in youthful vigorbangordailynews.com
- Students donate to Connellsville Area Community Ministriestriblive.com
- Madison students gain information about careers thanks to new partnershipbangordailynews.com
- Maine voters pass campaign finance reformbangordailynews.com
- Clean election measure: 'scam' or unveiling secrets?pressherald.com
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Our God is a Consuming Fire
God is calling to all the nations:
Jer 3:19
I have called all peoples and nations to choose to be part of My Chosen one.
Rev 14:6
(6) Then I saw another angel flying directly overhead, with an eternal gospel to proclaim to those who dwell on earth, to every nation and tribe and language and people.
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Mobile-phone theft has been a problem ever since portable handsets were first introduced, with various methods dreamt up over the years to try to combat this pervasive and costly crime. Consumers and law- enforcement organisations have become particularly empowered in their fight against thieves following the arrival of smartphones, which have enough onboard technology to help lost or stolen mobiles remain locatable even after they have gone astray. However, smartphones certainly don't help much when it comes to actually detecting theft, because at the moment there is still a degree of input required from the user. So if you do not know that your handset has been taken, it could be many hours until you realise, by which point the chances of recovery are significantly slimmer. Thankfully, a recent report from AppleInsider revealed that the iPhone manufacturer may be looking into the creation of tools which will actively fight theft by learning about the habits of legitimate users and thus working out whether or not someone else has got their hands on the device. This news comes courtesy of a patent filing which Apple made over in the US, so it is worth pointing out that the company may just be taking the precaution to protect the idea, without necessarily having plans to implement it in the immediate future. Of course, there is a good chance that anti-theft measures will be improved sooner rather than later, because this would be a big selling point for the iPhone range.
The underlying concept of the system proposed by Apple is simple: an iPhone will be able to monitor how the phone is used by its true owner, thus learning common habits and sending out alerts if any anomalies are detected further down the line. Behaviour will not only be detected based on app usage, but also on much more specific factors such as the word choice used when typing messages and the orientation in which the phone is most regularly held. Clearly, people will have their own unique digital fingerprint of usage, which iPhones may be able to harness to detect a theft if and when it does occur. When usage patterns do change, the notifications system will kick in and the phone will lock until the user enters their pass code or uses the Touch ID scanner to unlock it once more. And if multiple people share the same iPhone or iOS device, Apple's system will be able to keep track of several different profiles so that it is not getting locked unnecessarily.
The application of this system is not purely for theft alone, as Apple's patent suggests that it might also be useful for elderly users, since notifications can be sent to third parties, such as carers, thus enabling them to respond easily in an emergency. If a usage pattern is not kept up, this might suggest that there is a problem preventing the iPhone owner from getting to the phone, making it a good early warning system. This would presumably all work identically whether or not an iPhone was housed in custom iPhone 5C cases since neither of these accessories will compromise the internal sensors and data-collection capabilities of the device. Theft-averse users will no doubt be hoping that Apple follows through on this patent and makes one of the future generation of iPhones even safer.
Posted By:
Rahima Aktar on Monday, August 04, 2014 · Leave a Comment
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Professor Everard was one of Hogwarts School of Witchcraft and Wizardry's most celebrated Heads.
His portrait hangs in the Headmaster's Office and in the Ministry of Magic's Headquarters.[2]
As Headmaster of Hogwarts
Everard was made Headmaster of Hogwarts School of Witchcraft and Wizardry in an unknown time period. After his death, he was remembered as one of the most celebrated Heads of Hogwarts.[2]
Attack on Arthur Weasley
When Arthur Weasley was attacked by Nagini in the Department of Mysteries in late 1995, Albus Dumbledore, then Headmaster, asked Everard to go to his portrait at the Ministry of Magic's Headquarters in order to warn others that Mr Weasley was injured at the Department.[2] In June 1997, following the Death Eater attack on Hogwarts and the death of Albus Dumbledore, he informed Professor Minerva McGonagall that Rufus Scrimgeour was on his way, having just disapparated from the Ministry of Magic.[3]
The name "Everard" means "brave boar", derived from the Germanic elements eber, "wild boar" and hard, "brave", "hardy". The Normans introduced it to England, where it joined the Old English cognate Eoforheard. It has only been rarely used since the Middle Ages. Modern use of the name may be inspired by the surname Everard, itself derived from the medieval name.
Behind the scenes
- The style of clothing in his portrait suggests that he possibly lived in the 18th or 19th century.
- Everard was portrayed by Sam Beazley in the film adaptation of Harry Potter and the Order of the Phoenix.
- Everard is described as having short, black bangs in the novel, but Beazley portrays him as having greying hair.
- In LEGO Harry Potter: Years 5-7, he is shown to be holding a first-aid kit when Albus Dumbledore tells him to find the injured Arthur Weasley.
- Harry Potter and the Order of the Phoenix (First appearance) (Appears in portrait(s))
- Harry Potter and the Order of the Phoenix (film) (Appears in portrait(s))
- Harry Potter and the Half-Blood Prince (Appears in portrait(s))
- Harry Potter and the Half-Blood Prince (film) (Appears in portrait(s))
- Harry Potter and the Deathly Hallows: Part 2 (Appears in portrait(s))
- LEGO Harry Potter: Years 5-7 (Appears in portrait(s))
- The Making of Harry Potter (Appears in portrait(s))
Notes and references
- ↑ J.K. Rowling stated at the Edinburgh Book Festival on 15 August 2014 (source) that all portraits at Hogwarts School of Witchcraft and Wizardry are of deceased individuals. Thus, Everard must have died sometime in or before 1995, given his portrait's appearance in the Headmaster's office in Harry Potter and the Order of the Phoenix.
- ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 Harry Potter and the Order of the Phoenix, Chapter 22 (St Mungo's Hospital for Magical Maladies and Injuries)
- ↑ Harry Potter and the Half-Blood Prince, Chapter 29 (The Phoenix Lament)


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STATE BANK OF HYDERABAD RTGS HO Branch in TIRUPATI - Address, IFSC, MICR Code
SBHY0021845MICR Code
MANGALAM TIRUPATIContact
S.NO.235 BY 13OPP.R.S.BUILDINGREDDIGUNTAMANGALAM ROADTIRUPATI 517501City
What is IFSC Code of STATE BANK OF HYDERABAD situated at MANGALAM TIRUPATI- RTGS-HO?
IFSC Code of STATE BANK OF HYDERABAD situated at MANGALAM TIRUPATI - RTGS-HO is
What is the meaning of IFSC Code, MICR Codes in Banking industry?
IFSC or Indian Financial System Code is the code allocated to all banks branches. Bank branches use this code to participate in RTGS and NEFT transactions.
What is the significance of IFSC Code and how we can use it?
IFSC Code is a 11 digit code and we can use this code to communicate between different branches of different banks. Upon receiving the request for fund transfer it is easy for a bank to identify the payee branch. First four characters are code of bank, last six digits are branch code and fifth character is left 0, for any future use.


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Jamaican tourism has fastest turnaround capacity — Minister Bartlett
KINGSTON, Jamaica: During an award ceremony last week, Tourism Minister Edmund Bartlett said the tourism sector is the most resilient of all industries, with the fastest capacity for turnaround.
Speaking at the Spruce Up Jamaica Tourism Essay Competition, Bartlett said even the United States was now looking to tourism to help it make a fast recovery from its current recession.
"We came out of SARS (Severe Acute Respiratory Syndrome) within 18 months after it was dealt with. We came out of 9/11 within a year afterwards, H1N1 is on us and it is not really damaging the tourism too much. When hurricanes come, six to nine months we are back on track. No other industry offers us that capability to turnaround," Bartlett said.
Bartlett said Jamaica's success in achieving growth in the tourism sector, in a year when the tourism sector of most countries is reeling from the effects of the worldwide economic recession, must not be downplayed.
"I just came out of a world conference where Jamaica was put on the pinnacle, so to speak, (in terms) of those countries' performance in tourism for this particular year of downturn, of the greatest recession that the world has seen in 80 years," he told guests at the ceremony.
Bartlett also said Jamaica has been recognized among the top 10 growth destinations in the world.
Bartlett's statements were corroborated by Executive Director of the Jamaica Hotel and Tourist Association (JHTA), Camille Needham, who noted tourism has experienced growth this year, while other sectors have declined.
"I do want, on behalf of the JHTA, to congratulate the minister and his team for an outstanding job. And, minister, we are not embarrassed to acknowledge that. We are proud of the fact that Jamaica is very much a beacon for the rest of the world in this regard," Needham said.
The Spruce Up Jamaica Essay Competition invited youths across Jamaica to submit essays dealing with either the importance of heritage and culture to tourism, or how a clean and healthy environment impacts on tourism earnings. (JIS)


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Our firm represents a branded boat / marine communications company. The company and trusted brand has been around for about 40 years and produced revenue consistently in the $20MM range. The company needs about $550k in debt or equity, which will produce about $6MM in revenue quickly. They'll probably produce about $1.275MM in revenue this year, over $500k without taking on any additional orders, just fulfilling older customer orders, but will hit back near $20MM fairly quick.
They've been holding off on taking new orders, even though quite large, due to the lack of capital to execute on product delivery properly. They currently have over $1.5MM in assets, inventory, and AR. Below are the four year projections.
2016E - $1,275,380 Revenue, $71,284 Net Income, $1,626,108 Assets
2017E - $5,538,760 Revenue, $1,487,917 Net Income, $3,534,411 Assets
2018E - $10,626,480 Revenue, $2,570,058 Net Income, $6,268,407 Assets
2019E - $15,359,620 Revenue, $5,584,736 Net Income, $12,161,244 Assets
Financials (USD)
Asking Price Available On Request
Sales $1,275,380
Profit $71,284
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Fully furnished w/low-VOC bdrm carpet & cherrywood bdrm furniture in luxury hi-rise.Steps from elevator.Balcony w/park views. Gourmet kitchen w/SS appliances, granite, 42" cabs.W/D in unit.Garage space/lg storage unit.On-site prof mngm't. 24/7 Harris Teeter suprmrkt & Concierge. Pool, Fitness, Comm rm w/Potomac river views. Metroway@front dr 2 Metro $34 rebate avail. Close 2 DC, Pentagon, Old Town!
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3600 GLEBE RD #715W, Arlington, VA, 22202 is a Condo for rent at $1,845 with 669 sqft. 3600 GLEBE RD #715W has 1 bedrooms, 1.0 baths, and was built in 2006. The property's zip code is 22202 which is in Arlington, VA
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The information contained in this listing is deemed reliable but not guaranteed. Listing data provided by Metropolitan
Regional Information Systems, Inc. as of 11/29/2016
Financial calculator disclaimer:
Default based on a 30-year fixed rate of 4.125% with 20% down. The estimated payment is offered for convenience and is not an offer of credit. Due to market fluctuations, interest rates are subject to change at any time and without notice. Your individual rate may vary. Rates may differ for FHA, VA or jumbo loans.


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Alexander IV Elementary School, affectionately known as Alex IV in the Macon community, is located at 3769 Ridge Avenue in the Ingleside neighborhood of Macon, Georgia. Ingleside was signed into the National Register of Historic Places as a historic district in early 2016. Contributing properties, including Alex IV, located within the bounds of Ingleside Historic District are eligible for state and federal preservation tax incentives.
Built in 1932, Alex IV was the fourth school built by the Elam Alexander Trust. Elam Alexander believed strongly in the need of free, quality education for Maconites. The architecture of the building resembles finishes and features akin to an Alpine Mountain Village. The building expanded in 1948 to include more classrooms, storage space and a lunchroom. Alex IV was listed on Macon's Fading Five, a list of endangered properties published by Historic Macon annually, in 2015 due to its significance as a center of the Ingleside community and its stunning architecture.
Developers interest in purchasing Alex IV for rehabilitation and development can submit proposals to Historic Macon. Proposals are due by noon on October 28, 2016.
The winning proposal will be sensitive to the neighborhood, the building's preservation and compliance with local zoning laws. Historic Macon held a public meeting on April 11, 2016 with over 100 neighbors and community members in attendance. Attendees gave input regarding future uses for the building. These comments have been included in a RFP, which includes all other requirements.
Interested developers should submit complete proposals to Historic Macon's Executive Director, Ethiel Garlington, by email to firstname.lastname@example.com. Proposals must contain the following:
- Developer Qualifications
- Rehabilitation and development concept
- Financial capacity (this information will be kept confidential)
- Proposals must also include the purchase price for the property
Proposals will be evaluated by the specifications listed in the RFP by a review committee of neighborhood representatives, an elected official, and Historic Macon trustees.


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Beer Hammer & Ice Crusher
In Stock - Dispatch in 1 - 2 business days This product is ready to ship from our North Melbourne warehouse. Expect dispatch in 1 - 2 business days.
Limit per customer: 5
A fun addition to any household, pull out your best party trick with this handy Beer Hammer and Ice Crusher! It features a bottle opener end and a stainless steel head which comes in handy when you need ice crushed!
- Beer Hammer & Ice Crusher
- Colour: Silver/White
- Dimensions (approx. cm) : 11 (Diameter) x 13 (H)
- Materials: Stainless steel
- Bottle opener end for beers & soda
- Long shaft
- Stainless steel head
- Rubber handle grip
- Country of origin: China


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The Atlanta Falcons should have been the NFC champions last season. They had arguably the most dynamic receiving corps in the NFL with Roddy White, Julio Jones, and Tony Gonzalez, and of course a very well blossomed Matt Ryan under center.
But gone is the past, and while the present holds worthless (at least in my opinion) preseason games, we look to the future and the upcoming 2013 season.
Falcons General Manager Thomas Dimitroff wasted no time in the offseason. He immediately let go of three veteran players to somewhat rebuild the awful running game and added a larger threat on the defensive side of the ball.
By releasing running back Michael Turner, cornerback Denard Robinson, and defensive end John Abraham, the Falcons added prized free agent running back Steven Jackson to the backfield as well as a premier pass rusher, Osi Umenyiora.
As if the off season wasn't busy enough, the biggest moves for the Falcons remained within the confines of the organization itself. Dimitroff and head coach Mike Smith wooed legendary tight end Tony Gonzalez out of retierment and convinced him to remain with the Falcons for one more season.
Also, the long awaited contract extension for Matt Ryan was finally agreed upon. Matty Ice officially became the franchise superstar that the city of Atlanta so desperately needed by signing a five-year $104 million dollar deal.
With the new high-powered backfield and arguably the best receiving corps in the NFL, the Falcons are going to be a force to be reckoned with in the upcoming season.
While the team has a few holes in the offensive line, the Falcons will score a lot of points with the "hurry up offense" they love to utilize, as well as stop opposing offenses with pressure from returning linebackers Akeem Dent and Stephen Nicholas and corners Asante Samuel and Desmond Trufant.
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The Falcons aren't necessarily an aged team, but they have veterans in almost every position to not only help the up-and-coming players learn about how the game is played, but also on how to lead on the field.
With that wisdom and leadership, the Falcons can dominate almost every team. And just for good measure, they'll play 11 teams that were under the .500 mark last season, six of which are against the other teams in the NFC South.
There are nothing but high expectations for the Falcons this upcoming season. They are in the top tier of elite teams in the NFC, along with the Seattle Seahawks, San Francisco 49ers, and Green Bay Packers.
A lot is riding on this season for the Falcons, as the expectation is nothing short of a Super Bowl victory. While Matt Ryan is not at the "elite" quarterback level quite yet, if he leads the Falcons to their first Super Bowl champaionship, he will have the elite status that only a few quarterbacks in the NFL do.
And as for Tony Gonzalez, if the Falcons win the Super Bowl, the greatest tight end in history will ride off into the sunset on top.
The Falcons are favorites to win the NFC South division. They are contenders to win the NFC Championship game too. Any football fan knows that the Falcons are not a team to mess with.
They are one of 32 teams that are hungry for the Lombardi Trophy, but they are one of the few teams that have the roster, leadership, and determination to actually go out and grab it.
By: Neil Shelat
Twitter: @NeilShelat6


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"Room with a view" Hotel Millennium Tip by kathy_and_ej
Hotel Millennium, Pecs: 42 reviews and 0 photos
We stayed in one of the panorama rooms, and had a nice view of the church on the Dom ter. In addition, the air-conditioning, the pool in the back, a parking garage, friendly staff and a good breakfast made our stay a relaxing one. I would definitely stay there again, and would recommend it to others. Panorama double room was 75 Euros (June 2004)
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decided: June 26, 1978.
HAROLD FRIEDMAN, INC. APPELLANTv.KROGER COMPANY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 75-756)
Before Seitz, Chief Judge, and Van Dusen and Rosenn, Circuit Judges.
Opinion OF THE COURT
This is an appeal from an order granting defendant's motion for summary judgment in a case brought under §§ 1 and 2 of the Sherman Act. We affirm.
The record establishes the following facts. The plaintiff, Harold Friedman, Inc. (hereinafter Friedman), is a franchisee of Foodland, Inc., a national grocery store chain. Prior to the actions complained of, Friedman operated four Foodland grocery stores in the Butler, Pa., area. At the time the complaint was filed and at the time the motion for summary judgment was granted, Friedman operated five such stores. Defendant, the Kroger Company (hereinafter Kroger), is the nation's third largest supermarket chain, operating over 1,200 stores in 20 states. During all relevant times, Kroger operated one store in the Butler area. On March 27, 1959, defendant Kroger leased a store in the Greater Butler Mart shopping center. The lease entitled Kroger to the premises until October 31, 1976, with an option to renew until October 31, 1991, and contained a restrictive covenant preventing the landlord from leasing other space in the shopping center to more than one other grocery store. On September 22, 1972, Kroger decided to abandon this store and to erect a much larger "Superstore" within two miles of the shopping center and nearer to the center of Butler. Having learned of Kroger's decision to terminate its shopping center operation from one of the owners of the shopping center, Friedman expressed to the landlord an interest in leasing Kroger's space. The landlord informed Kroger of this, and on May 23, 1973, Kroger notified the landlord that it would abandon the space in November 1973 upon the opening of the new store, and also advised the landlord that it would attempt to find a suitable sub-tenant. Kroger's attempts to find a sub-tenant were unsuccessful, much to the concern of the landlord, because of the adverse effect on the other tenants of having a significant portion of the shopping center vacant.
During this time, Friedman and the shopping center landlord began negotiating a lease agreement for the premises and in November 1973 entered into an agreement in principle for lease of the premises. In December 1973, the landlord informed Kroger that it had found a tenant and asked Kroger to agree to termination of the lease. On December 8, 1973, Kroger closed the shopping center store and opened its new store, but retained the shopping center premises despite the knowledge that the landlord had found a tenant. Friedman did not approach Kroger about subletting the premises and Kroger continued to seek a sub-tenant to no avail.
On January 17, 1974, Friedman and the landlord executed a lease of the premises, contingent upon the landlord's terminating Kroger's lease. Two weeks earlier, however, on January 4, 1974, Kroger had contracted with Harry Davis and Company, auctioneers, to auction Kroger's equipment at the closed shopping center store. The contract provided that the equipment was to be removed by the buyer at the buyer's risk and expense within a time specified by the auctioneer. This removal provision was standard for all prior auctions conducted by Davis for both Kroger and Friedman. On February 4, 1974, Friedman purchased the equipment at the auction with the intention of leaving it in place and opening a Foodland store on the premises. Friedman claims that he informed Davis of this intention, but in his deposition Davis states that he recalls no such conversation. On February 20, Davis reminded Friedman that the terms of the sale required him to remove the equipment, and on March 22 Kroger informed Friedman by certified mail that if Friedman did not remove the equipment by April 2, 1974, Kroger would have it moved and stored for Friedman's account. Friedman claims that he offered to pay Kroger an amount equivalent to three months' rent on the premises if Kroger would allow Friedman to leave the equipment in place and that Kroger refused.
In mid-April Kroger hired the Henry T. Limberg Company to remove the equipment. This removal was completed by April 19. Friedman alleges that the removal was done in such a way as to necessitate very lengthy and excessive repairs. For example, Friedman testified that pipes and copper tubing which Friedman had purchased were ripped out of the floor, causing extensive damage.
Meanwhile, the shopping center landlord sued Kroger to terminate the lease, claiming that Kroger had defaulted by allowing the premises to remain vacant. This litigation was settled on May 7, 1974, when Kroger agreed to terminate the lease. Friedman took over the premises at that time.
On August 30, 1974, Kroger notified Friedman that the removed equipment was being stored and that unless Friedman contacted Kroger immediately and reimbursed it for moving and storage costs, Kroger would resell the equipment to recover those costs. Friedman's attorney responded that the moving and storage costs were incurred by Kroger's unilateral action and that any sale was without Friedman's consent. On October 29, 1974, the equipment was auctioned by Harry Davis and Company for an amount which was less than the cost of moving and storage. In November 1974, Friedman opened a Foodland store at the shopping center with new equipment.
On June 19, 1975, Friedman filed the present action, alleging that Kroger's conduct damaged Friedman by delaying the opening of the Foodland store at the shopping center, by causing Friedman to purchase and install new equipment to replace the equipment removed and sold by Kroger's agents, and by causing Friedman to repair the damage done when the equipment was removed from the premises. The complaint alleges that Kroger's actions constitute violations of §§ 1 and 2 of the Sherman Act, as well as various wrongs actionable under Pennsylvania law, including interference with competition, conversion of property, interference with business relationship, and breach of contract. The district court granted defendant's motion for partial summary judgment with respect to the counts of the complaint alleging violations of the Sherman Act. At the request of both parties, the district court expressly directed that the order granting such motion should be a final judgment in accordance with the terms of F.R.Civ.P. 54(b), thereby permitting an immediate appeal of such order.
We recognize that summary judgment should be used sparingly in antitrust cases, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1961), but also understand that the Sherman Act does not purport to afford remedies for all business torts committed by or against persons engaged in interstate commerce. Hunt v. Crumboch, 325 U.S. 821, 826, 65 S. Ct. 1545, 89 L. Ed. 1954 (1945).
Section 1 of the Sherman Act provides in relevant part: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal . . . ." 15 U.S.C. § 1.*fn1 The district court ruled that the defendant was entitled to summary judgment because its conduct did not unreasonably restrain trade.*fn2 We requested briefing on the issue of whether Kroger's activities constituted concerted activities as required by § 1. We hold that the requirement of concerted activity was not met and therefore find it unnecessary to reach the restraint of trade issue.
Section 1 of the Sherman Act does not proscribe every act that restrains trade. Rather, by its express language, it requires a "contract, combination . . . or conspiracy in restraint of trade." In short, it requires concerted activity.*fn3 Of course, the classic case of concerted action is an agreement by competitors to engage in a common course of conduct. L. Sullivan, Antitrust 312-13 (1977). The Supreme Court, however, has made clear that the Sherman Act's concept of concerted activity extends beyond the classic case.*fn4 Just how far it extends beyond the classic case is the issue here. For reasons given in the discussion that follows, we conclude that the record here does not present a case of concerted activity.
Plaintiff relies on Albrecht v. Herald Co., 390 U.S. 145, 88 S. Ct. 869, 19 L. Ed. 2d 998 (1968). In finding concerted activity in Albrecht, the Supreme Court adopted an expansive interpretation of "contract, combination . . . or conspiracy." Since Albrecht is the Supreme Court's most recent definitive discussion of this topic, our analysis must begin there. Although Albrecht bears a superficial similarity to the present case, our analysis will show that that case is distinguishable.
Albrecht concerned a newspaper publisher's attempt to force distributors to adhere to a retail price set by the publisher. Plaintiff Albrecht was the exclusive distributor in a particular area of metropolitan St. Louis of the newspaper published by the defendant, Herald Company. When Albrecht raised his price above the Herald's suggested resale price, the Herald informed him that if he did not lower his price, the Herald would take over Albrecht's route and deliver the papers. The Herald hired Milne Circulation Sales, Inc. to solicit subscriptions from Albrecht's customers at the Herald's lower price. Then the Herald entered into an agreement with George Kroner to have Kroner deliver the papers to the customers Milne had lured away from Albrecht. Kroner knew that the Herald would not tolerate his charging more than the Herald's suggested retail price and also understood that he might have to relinquish the route if Albrecht acceded to the Herald's demand that he reduce his price to the suggested retail price.
Albrecht claimed that the Herald's agreements with Milne and Kroner constituted concerted activity under § 1, and the Supreme Court agreed with this contention. The Court stated:
"(T)here can be no doubt that a combination arose between respondent, Milne, and Kroner to force petitioner to conform to the advertised retail price. When respondent learned that petitioner was overcharging, it hired Milne to solicit customers away from petitioner in order to get petitioner to reduce his price. It was through the efforts of Milne, as well as because of respondent's letter to petitioner's customers, that about 300 customers were obtained for Kroner. Milne's purpose was undoubtedly to earn its fee, but it was aware that the aim of the solicitation campaign was to force petitioner to lower his price. Kroner knew that respondent was giving him the customer list as part of a program to get petitioner to conform to the advertised price, and he knew that he might have to return the customers if petitioner ultimately complied with respondent's demands. He undertook to deliver papers at the suggested price and materially aided in the accomplishment of respondent's plan."
Id. at 149-50, 88 S. Ct. at 872.*fn5
The Supreme Court made no attempt to articulate a test or standard for concerted activity in Albrecht, but certain factors which appear to be crucial can be gleaned from the case. First, both Milne and Kroner knew that the Herald's purpose was to assure its fixed price for the retail sale of the papers. Therefore, knowledge of the defendant's purpose to restrain trade is an important factor. Secondly, at least two members of the combination stood to benefit by the restraint of trade, the Herald by assuring the price it desired and Kroner by getting a profitable paper route.*fn6 Thus, in a sense, two members of the combination shared a common purpose insofar as they both benefited from the restraint of trade.*fn7
A final important factor in Albrecht is that the agreement with Kroner was in no sense collateral to the purpose to restrain trade but went to the heart of the restraint. This can be seen by comparing Kroner's role with Milne's. By soliciting customers, Milne was merely performing its normal business function, and although that function facilitated the restraint of trade, it did not restrain trade. Kroner's agreement to sell at a fixed price, by contrast, did restrain trade. It precluded sales in the area of his distributorship at a higher price. Furthermore, Kroner's agreement went beyond a lawful agreement to perform the normal business function as a distributor, as it included an agreement to sell at a fixed price. As a corollary to this, it is clear that Kroner, in contrast to Milne, intended to restrain trade. To summarize, the following factors were present in Albrecht : (1) all members of the combination knew of the defendant's purpose to restrain trade; (2) at least two members of the combination benefited by the restraint of trade and, in that sense, shared a common purpose in restraining trade; (3) the agreement by two members of the combination actually restrained trade, as opposed to merely facilitating the restraint; and (4) at least two members of the combination intended to restrain trade.
We have these comments on the significance of these four factors. First, factors 2 and 3 apply only to Kroner, and it is not clear from the Albrecht opinion whether the Supreme Court would have found concerted activity under § 1 based on the agreement between the Herald and Milne alone if the Herald had delivered the newspapers itself and not hired Kroner. It would have been reasonable for the Court to have found that the Herald acted unilaterally in such a case, for in this hypothetical case only the Herald intended to restrain trade, only the Herald restrained trade, only the Herald stood to benefit from restraining trade, and no one shared with the Herald a common purpose of restraining trade. Professor Areeda also finds this position reasonable and suggests that a purely collateral agreement, such as that between Milne and the Herald, is insufficient to constitute concerted activity. Areeda makes this point by asking the following question, which poses the extreme case: "Does the Court imply that any defendant who, say, uses the telephone has "combined' with the telephone company?" P. Areeda, Antitrust Analysis 567 (1974). Clearly, a defendant whose acts in restraint of trade are facilitated by its use of the telephone has not combined with the telephone company by virtue of its contract for telephone services. It seems to us, therefore, that Kroner's role in the combination was crucial to the outcome of the case.
Our second observation is closely related to the first. Of the four factors, the only one the Supreme Court emphasized was the first. Therefore, for there to be concerted activity under Albrecht, the party combining with the defendant must have knowledge of the defendant's anticompetitive purpose. Since the Court did not emphasize the other three factors, we cannot say that they constitute part of the Supreme Court's test for concerted activity. Indeed, the Supreme Court approach in Albrecht seems to be Ad hoc rather than an attempt to formulate a test. Therefore, since the second and fourth factors are present in Albrecht, finding concerted activity in a case in which one or more of these factors is absent would be an expansion of Albrecht beyond its narrow factual confines. Such an expansion, of course, would have to be justified on grounds independent of Albrecht. Because we have found Kroner's role to be crucial in Albrecht, such justification is unlikely if all three of factors 2 through 4 are absent.
We now turn to the task of applying the principles of Albrecht to the facts of this case. Plaintiff contends that there are three possible grounds on which concerted action can be found: the lease agreement between the shopping center landlord and Kroger and the landlord's refusal to breach the lease; the agreement between Kroger and the auctioneer, Davis; and Kroger's contract with Limberg for removal of the equipment.*fn8
In applying the four factors present in the Albrecht case to these facts, it is evident that factors 2 and 3 are not present here. Factor 2 was that at least two members of the combination benefited by the restraint of trade and shared a common purpose in restraining trade. In the present case, only Kroger would benefit from preventing Friedman from operating a grocery store at the shopping center. Davis, Limberg and the shopping center landlord would receive no benefit from keeping Friedman out and, therefore, did not share a common purpose with Kroger. Factor 3 in Albrecht, that an agreement between the defendant and at least one other party to the combination actually restrain trade, as opposed to merely facilitating the restraint of trade, is also absent here. For an agreement actually to restrain trade in this case, as did the agreement between Kroner and the Herald in Albrecht, someone would have had to agree to sublease the premises from Kroger, agree not to operate a grocery store from the premises, and agree not to sub-let the premises to any other party for the purpose of operating a grocery store. Thus, the agreements plaintiff characterizes as constituting concerted activity in this case are collateral to the restraint of trade.
This case, then, is distinguishable from Albrecht in two important respects, but that does not end our inquiry, for we need to determine if the principles of Albrecht should be extended to this case. Therefore, to determine to what extent this case is distinguishable from Albrecht, we must determine whether factor 1, knowledge of defendant's purpose, and factor 4, intent to restrain trade, are present in this case.
The agreement between Kroger and the shopping center landlord
Since the lease agreement between Kroger and the landlord occurred in 1959, 13 years before Kroger decided to leave the shopping center premises, the lease itself could not possibly have constituted concerted activity in restraint of trade. Therefore, Friedman argues that the landlord, by not renting to Friedman property in which Kroger had a leasehold interest, acted in concert with Kroger. Friedman argues that the landlord's failure to do this makes the landlord an unwilling co-conspirator.
Conceding that the landlord knew of Kroger's purpose to restrain trade, we nonetheless hold that the landlord's action, or inaction, did not constitute concerted activity with Kroger. Short of subjecting itself to liability for leasing property which it had no right to possess, the landlord did everything it could to resist Kroger's attempt to prevent Friedman from leasing the property. The landlord opposed Kroger, first, by demanding that Kroger relinquish the premises and, subsequently, by resorting to litigation. Ultimately, the landlord was successful by obtaining a settlement agreement in which Kroger agreed to terminate the lease. To characterize this as unwilling cooperation distorts the record. Appellant's Letter Brief of April 21, 1978, at 4. This is not a case in which a party to a conspiracy unwillingly went along with the defendant, but a case in which the party successively resisted the attempts of the defendant to force it to go along. The fact that success in resisting Kroger did not occur overnight does not convert the landlord's attempt to resist Kroger into concerted activity. The evil of coercing a weak party to aid a strong party in restraining trade simply is not present here. Regarding factor 4, then, the landlord did not intend to restrain trade. And the landlord's knowledge of Kroger's anti-competitive purpose (factor 1) is not enough to make the landlord's protracted attempt to resist Kroger concerted activity. To hold otherwise would constitute a distortion of the words "contract, combination . . . or conspiracy."
The agreement between Kroger and auctioneer Davis
The contract between Kroger and the auctioneer contained a standard provision requiring the purchaser to remove from the store all items purchased. There is no evidence that Davis knew of Kroger's anti-competitive purpose or intent to restrain trade at the time Davis entered into the contract with Kroger and thereby agreed to this provision. Thus, plaintiff argues that Davis acted in concert with Kroger by forcing Friedman to comply with this condition of the auction.
A perusal of the record discloses that Davis' role in enforcing this provision was De minimis. Davis' role was limited solely to writing a letter to Friedman which stated:
"Our contract with Kroger requires that the premises be cleared by the purchasers. These were the terms under which you made your purchase.
"Please notify us as soon as possible as to your intentions so that we may schedule our personnel to be in attendance to monitor the removal of your purchases."
Thus, Davis simply informed Friedman of the conditions of sale, but made no attempt to force Friedman to abide by those terms. Subsequently, Kroger notified Friedman that it, Kroger, intended to enforce the removal provision. When Friedman refused to remove the equipment, Kroger, not Davis, contracted with Limberg to have it removed.
Even if we were to assume that after the auction contract had been entered into Davis learned of Kroger's intent to restrain trade and that Davis intended to restrain trade,*fn9 Davis' actions fall short of the standards of Albrecht. As plaintiff admits, in Albrecht the parties to the combination " ". . . Materially aided in the accomplishment of respondent's plan.' " Appellant's Letter Brief of April 21, 1978, at 1, quoting Albrecht at 150, 88 S. Ct. at 872 (emphasis supplied). The letter written by Davis did not Materially aid Kroger. Not only was it not necessary to the accomplishment of Kroger's purpose, it was not even particularly helpful. Therefore, under Albrecht there was no concerted activity in restraint of trade between Kroger and Davis.
The agreement between Kroger and Limberg
Limberg's action in removing the equipment from the premises did materially aid Kroger in accomplishing its purpose. Thus, we need to determine whether the affidavits, depositions, and uncontradicted allegations in the pleadings raise a genuine issue of material fact as to whether Limberg knew of Kroger's anti-competitive purpose or intended to restrain trade.
Although the complaint does not specifically allege that Limberg knew of Kroger's anti-competitive purpose, it does allege that the contract for removal constituted a combination in restraint of trade. The only evidence plaintiff introduced to show that Limberg had knowledge of Kroger's purposes and intended to restrain trade was the deposition of Friedman himself. Friedman testified that the equipment was removed in such a way as to cause damage to the premises, requiring expensive repairs.*fn10 Plaintiff argues that this fact raises the inference that Limberg had the requisite knowledge and intent. Of course, this inference requires the intermediate inference that the damage was inflicted intentionally at Kroger's request. Taking the fact of the damage as established, we do not think it is sufficient to raise the inference that Limberg knew of Kroger's purpose to restrain trade or that Limberg intended to restrain trade.
Significantly, this inference, or, more accurately, this inference upon inference, is directly contradicted by evidence in the record. Relying on circumstantial evidence to show knowledge and intent, plaintiff did not depose Henry T. Limberg, Jr., the president of Limberg Company, or any of his employees. Yet Limberg's sworn affidavit states the following:
"3. No one at Kroger directly or indirectly ordered me or advised me or anyone at my Company to remove this equipment from the premises in a careless or destructive manner. . . . In fact, Friedman's Foodland subsequently hired me to install its newly purchased equipment and to perform certain renovations to the premises which were not caused by or required by my removal of the Kroger equipment. In addition, Mr. Friedman has used the services of my Company since I installed his new equipment for him at this location.
"4. At no time did anyone from The Kroger Company directly or indirectly tell me or anyone under my control that the purpose of my removal of the Kroger used equipment was to hinder or delay the opening by Harold Friedman of a Foodland store on this location."
Affidavit of Henry T. Limberg (Jr.), docket entry 60.
This is corroborated by the deposition of Ralph George Mehringer, who, as Kroger's Manager of facility engineering, was responsible for hiring Limberg to remove the equipment. As the following excerpt from his deposition demonstrates, Mehringer testified that he did not instruct Limberg to remove the equipment in a destructive manner:
"Q. Did you give them (Limberg) any special instructions concerning the manner in which the removal was to be done?
"A. Yes. I believe I directed them to avoid any damage to the equipment; that it was to be removed in such a fashion that it could be re-used again.
"Q. Was that your only special instruction to them?
"A. Yes. I don't recall anything else.
"Q. You don't know who you dealt with at the Henry T. Limberg Company.
"A. Yes, Hank Limberg, Jr. (Henry T. Limberg, Jr.)"
Deposition of Mehringer at 95.
"Q. You gave them the authority to move forward and remove it however they saw fit, didn't you?
"A. I don't agree with that.
"Q. Did you tell them they didn't have specific authority to remove any of the equipment?
"A. I did not tell them you have authority to remove the equipment any way you see fit.
"Q. Did you tell them they had the authority to remove the equipment?
"A. No. I told them that I wanted them to remove the equipment and that I was issuing the purchase order for them to do it and that I wanted the equipment removed in such a fashion so that it would not be damaged and so that it could be re-used.
"Q. You left to them the manner in which this would be done; is that correct?
"A. From that point forward it was their responsibility."
Id. at 125-26.
Furthermore, Mehringer testified that it was not unusual for employees of removal contractors to inflict the type of damage found here of their own accord.
"I find that in certain occasions the people that are doing the removal, they have no interest in that building. They are strictly outside contractors. They have occasionally damaged a building. They don't seek to take the time to disconnect something. They know the electrical conduit is dead because they have killed the breaker in the back. They just whack it off."
Id. at 73.
Recognizing that on a motion for summary judgment we must view the record in the light most favorable to the party opposing the motion, Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), we find that the record does not support the inference that Limberg had the requisite knowledge or intent. Therefore, none of the four factors we have identified in the Albrecht combination are present in the agreement between Kroger and Limberg, and this agreement cannot support plaintiff's claim of concerted activity.
As we stated earlier, despite a superficial similarity between Albrecht and the present case, our analysis shows that the cases are distinguishable in crucial respects. Furthermore, we think our decision not to extend the Albrecht result to the facts here finds support independent of our analysis of Albrecht.
This court and at least one other circuit court of appeals have declined the opportunity to extend Albrecht to agreements facilitating a restraint of trade when a party has simply entered into a permissible contract with the defendant or when the defendant has enforced a contractual right with another party.*fn11 In Williams v. Independent News Co., Inc., 485 F.2d 1099 (3d Cir. 1973), plaintiff Williams bought and sold surplus comic books. The comic books were published by defendant Independent and distributed through defendant Magazine Management (Magazine), the exclusive authorized distributor. Magazine had been selling its surplus to one Waldman, who in turn sold some of these comic books to Williams. Independent complained to Magazine that the comic books sold by Williams were being sold on the retail market at prices lower than those distributed to retailers through Magazine, thus hurting the profits of both Independent and Magazine. Magazine then ceased selling to Waldman, thereby cutting off Williams' supply. Williams sued, claiming that the agreement between Independent and Magazine to cut off Waldman constituted concerted activity under § 1 of the Sherman Act. This court rejected that claim and held that, even if Independent directed Magazine to terminate sales to Waldman, Independent was rightfully enforcing its exclusive dealing contract. Id. at 1105.
More recently, in Columbia Metal Culvert Co. v. Kaiser Aluminum & Chemical Corp., 579 F.2d 20 (3d Cir. 1978), this court affirmed a directed verdict in favor of a co-defendant in an antitrust case because "there was insufficient evidence from which the jury could find a "unity of purpose, design or understanding,' between (that defendant) and the other defendants . . . ." Id. slip op. at 26, at 36.*fn12
Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 531 F.2d 910 (8th Cir. 1976), also lends support to our decision. Defendant Morton manufactured prefabricated buildings and plaintiff, Morton of Nebraska (referred to as "West" after the name of its owner), was a Morton dealership selling and erecting the buildings in Nebraska. Morton decided to take over West's operation and to sell and erect the buildings in Nebraska. In doing so, Morton hired some of West's employees. West contended that the employment contracts between Morton and West's former employees constituted concerted action under § 1 of the Sherman Act. The court rejected this contention in dicta, stating:
"It is necessary to prove the existence of at least an implied agreement as a prerequisite to establishing a conspiracy. The Supreme Court of the United States has liberalized the proof requirements in this regard by permitting the finding of an implicit conspiratorial agreement between parties, some of whom have marginal involvement in or awareness of the overall scheme. Albrecht v. Herald Co., 390 U.S. 145, 150 & n. 6, 88 S. Ct. 869, 871, 19 L. Ed. 2d 998, 1002 (1968); United States v. Parke, Davis & Co., 362 U.S. 29, 45-47, 80 S. Ct. 503, 512-513, 4 L. Ed. 2d 505, 515-517 (1960). We note in the present case that West's employees did nothing more than accept a permissible offer of employment from Morton."
Id. at 917 n. 9.
Finally, we think Justice Harlan's dissenting opinion in Albrecht offers good reasons for a court to exercise caution when asked to extend Albrecht to a case in which none of the parties allegedly acting in concert with the defendant have an interest in restraining trade and all such parties enter into agreements which do not themselves restrain trade but are collateral to the restraint of trade. Justice Harlan stated:
"If the critical question is whether a company pays one of its own employees to perform a routine task, or hires an outsider to do the same thing, the requirement of a "combination' in restraint of trade has lost all significant meaning. The point is more than that the words in a statute ought to be taken to mean something of substance. The premise of § 1 adjudication has always been that it is quite proper for a firm to set its own prices and determine its own territories, but that it may not do so in conjunction with another firm with which, in combination, it can generate market power that neither would otherwise have. A firm is not "combining' to fix its own prices or territory simply because it hires outside accountants, market analysts, advertisers by telephone or otherwise, or delivery boys."
Albrecht 390 U.S. at 160-61, 88 S. Ct. at 877 (Harlan, J., dissenting).*fn13
For the foregoing reasons, we hold that the defendant is entitled to summary judgment on the § 1 claim on the ground that the record does not support the allegation of concerted activity.
Section 2 of the Sherman Act provides in relevant part:
"Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, . . . shall be deemed guilty of a felony, . . ."
The district court held that plaintiff's evidence could support neither its claim of monopolization nor its claim of attempt to monopolize. On appeal, plaintiff has abandoned its claim of monopolization; therefore, we need only decide whether the district court was correct in granting defendant's motion for summary judgment on the claim of attempted monopoly.
The two essential elements of a § 2 attempt to monopolize violation are a specific intent to monopolize the relevant market and sufficient market power to come dangerously close to success. Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1348 (3d Cir. 1975).*fn14 Neither element is present in this case.
We agree with the district court that the record establishes that the Butler area retail grocery market is the relevant market, and plaintiff seems to concede this on appeal. Brief for Appellant at 24. There is no evidence in the record that Kroger intended to monopolize the retail grocery market in the Butler area or to eliminate Friedman from the Butler area. Viewing the record in the light most favorable to the plaintiff, we conclude that it establishes that Kroger intended no more than to prevent Friedman from operating a store at Kroger's former location in the shopping center. There is nothing in the record that even suggests by way of inference that Kroger intended to harm Friedman's operations in any of its other Butler area stores or harm its operations in Butler generally.
Uncontradicted evidence in the record also establishes that Kroger did not have sufficient market power to come dangerously close to successful monopolization. When Kroger closed its shopping center store on December 8, 1973, the market shares were as follows:
Foodland (Friedman) 28.1%
Shop & Save 17.0%
Thorofare 14.0%
Kroger 9.2%
Acme 5.2%
One year later the market shares were as follows:
Foodland (Friedman) 28.2%
Shop & Save 16.6%
Kroger 15.5%
Thorofare 11.7%
Acme 5.4% n.15
From this uncontradicted market data, we conclude that Kroger did not have sufficient market power to come dangerously close to monopolizing the Butler area retail grocery market.
As we noted at the outset, summary judgment should be used sparingly in antitrust cases. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1961). However, Rule 56 should not "be read out of antitrust cases," First National Bank v. Cities Service, 391 U.S. 253, 289, 88 S. Ct. 1575, 1593, 20 L. Ed. 2d 569 (1968), and "the question whether summary judgment is appropriate in any case is one to be decided on the particular facts of that case . . . ." Id. at 259, 88 S. Ct. at 1577. We think the language quoted by the district court from Tripoli Co. v. Wella Corp., 425 F.2d 932 (3d Cir.) (en banc), Cert. denied, 400 U.S. 831, 91 S. Ct. 62, 27 L. Ed. 2d 62 (1970), is apposite. In Tripoli we stated:
"Even in an antitrust case a party must now come forward with affidavits setting forth specific facts showing that there is a genuine issue for trial.
"What Rule 56(e) does not make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion against him.
While we recognize the importance of preserving litigants' rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.' "
Id. at 935-36, Quoting First National Bank, supra, 391 U.S. at 289-90, 88 S. Ct. 1575.
The order of the district court, granting defendant's motion for partial summary judgment as to the Sherman Act counts of plaintiff's complaint, will be affirmed.
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California Court of Appeals, Third District, Butte
August 26, 2013
THE PEOPLE, Plaintiff and Respondent,v.KEVIN PATRICK SNOW, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Butte County No. CM031239, Kristen A. Lucena, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
HULL, Acting P. J.
Defendant Kevin Patrick Snow entered a negotiated plea of no contest to three counts of theft by false pretenses (Pen. Code, §§ 487, subd. (a), 532, subd. (a)) and one count of engaging in business without a license, a misdemeanor (Bus. & Prof. Code, § 7028) in exchange for dismissal of a white-collar crime allegation (Pen. Code, § 186.11). The court granted probation for a term of five years subject to certain terms and conditions including 120 days in jail.
Defendant appeals. His request for a certificate of probable cause (Pen. Code, § 1237.5) was denied. He contends that insufficient evidence supports his ability to pay the $736 presentence investigation report fee and the $164 per month probation supervision fee. We conclude that defendant forfeited this contention by failing to object to the imposition of these fees in the trial court.
The probation officer recommended that defendant pay, among other fees, fines and restitution, $736 for the presentence investigation report and $164 per month for probation supervision. The probation officer opined that defendant was "able-bodied with marketable job skills, and therefore, he should have the ability to pay all fines, fees, and restitution, as ordered by the Court."
In a written statement of probation eligibility and mitigation, defendant sought a grant of probation, stating that he was willing to pay restitution, had set aside several thousand dollars to do so, and had the ability to comply with the terms and conditions of probation. He stated that he had always been the provider for his family. He did not state that he had no ability to pay fees or fines.
In a supplemental report, the probation officer reiterated the recommendations for fees, fines and restitution. The probation officer noted a change in that defendant had reported that he had spent the money he had saved for payment of victim restitution.
At sentencing, the court indicated that it had read the probation report and was prepared to follow the probation officer's recommendations. Defense counsel agreed with the probation officer's recommendations other than the 120 days in county jail which counsel claimed was "not appropriate for [defendant]." Defense counsel represented both defendant and his brother, George Snow, who was sentenced on the same date. Defense counsel stated that "[t]hey are prepared to pay $5, 000 toward restitution" immediately and "[t]hey would commit to an O/R order at $1, 000 a month of continual payment to court compliance in addition to the [$]5, 000 today." Defense counsel stated that defendant was employed. Defense counsel did not state that defendant did not have the ability to pay the recommended fees and fines.
The court suspended imposition of sentence, granted probation for a term of five years, and imposed restitution, fines, and fees, including the presentence investigation report fee and the monthly supervision fee. Defense counsel did not object.
Defendant claims that the issue of the sufficiency of the evidence to support his ability to pay the report and supervision fees is not forfeited, citing People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco). Defendant also cites Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11 at page 23, footnote 17, which sets forth the general rule that a claim of insufficient evidence supports a judgment is not forfeited by failure to raise the issue in the trial court.
Pacheco struck a probation supervision fee where there was "no evidence in the record that anyone... made a determination of [the defendant's] ability to pay the $64 per month probation supervision fee" and where "the statutory procedure provided at [Penal Code] section 1203.1b for a determination of [the defendant's] ability to pay probation related costs was not followed." (Pacheco, supra, 187 Cal.App.4th at p. 1401.) Pacheco held that the defendant's challenge to the sufficiency of the evidence supporting the probation supervision fee was not forfeited on appeal by his failure to assert the same in the trial court. (Id. at p. 1397.)
People v. McCullough (2013) 56 Cal.4th 589 at page 599 (McCullough)disapproved Pacheco. McCullough held that the defendant forfeited his challenge to the sufficiency of the evidence supporting the finding that he had the ability to pay a jail booking fee by failing to object in the trial court. (Id. at pp. 591, 598.) "Defendant may not 'transform... a factual claim into a legal one by asserting the record's deficiency as a legal error.' [Citation.] By 'failing to object on the basis of his [ability] to pay, ' defendant forfeits both his claim of factual error and the dependent claim challenging 'the adequacy of the record on that point.' [Citations.]" (Id. at p. 597.) "[A] defendant who does nothing to put at issue the propriety of imposition of a booking fee forfeits the right to challenge the sufficiency of the evidence to support imposition of the booking fee on appeal, in the same way that a defendant who goes to trial forfeits his challenge to the propriety of venue by not timely challenging it." (Id. at p. 598.)
Here, defendant had adequate notice that the costs of the report and supervision would be imposed but objected to neither in writing or orally and never requested a hearing. He now contends insufficient evidence supports a finding of his ability to pay the report and supervision fees. Based on the reasoning of McCullough, we conclude that defendant forfeited his challenge to the cost of the probation report ($736) and monthly supervision ($164 per month for 60 months) imposed pursuant to Penal Code section 1203.1b.
The judgment is affirmed.
We concur: BUTZ, J., MAURO, J.
The opinion in the above-entitled matter filed on August 26, 2013, was not in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.
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GA Governer's Race
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Behind the Booklet: 50 Things to Grill in Foilby Victoria Phillips in Behind the Scenes, Food Network Magazine, June 25th, 2012
Coming up with 50 of anything for Food Network Magazine's monthly 50-recipe booklet can be daunting — in the past, the magazine has featured 50 tacos, 50 brownies and 50 grilled cheeses — but this month, chefs in Food Network Kitchens tackled the ultimate way to cook out: in foil packs.
Sure they included the usual suspects — chicken wings and various vegetables — but it's dishes like Paella (No. 12), Gnocchi (No. 11) and Upside-Down Cakes (No. 47) that up the wow factor.
Traditionally, paella was cooked on an open flame, says Claudia Sidoti, Food Network test kitchen manager. Cooking paella in the foil pack resembles that traditional style, bringing a nice crunch to the rice, she adds.
Here are some tips our chefs picked up after making dozens of foil packs in the test kitchens:
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Try them all: 50 Things to Grill in Foil
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"Santa Maria Novella" Basilica Di Santa Maria Novella Tip by Willettsworld
Basilica Di Santa Maria Novella, Florence: 48 reviews and 84 photos
The church of Santa Maria Novella was built by the Dominicans between 1279 and 1357. The lower Romanesque part of the facade was incorporated into one based on Classical proportions by the pioneering Renaissance architect Leon Battista Alberti in 1456-70. The Gothic interior contains superb frescoes including Masaccio's "Trinity".
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