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United States District Court, S.D. New York
May 12, 2014
BRIDGET M. CURRAN, individually, and as natural Guardian of C.F.C., a minor, Plaintiff,v.AETNA LIFE INSURANCE COMPANY, TRINET GROUP, INC., and THE TRINET OPEN ACCESS MANAGED CHOICE PLAN Defendants.
NELSON S. ROMN, District Judge.
Bridget M. Curran brings this action on behalf of herself individually and as the natural guardian of her son, C.F.C., a minor ("Plaintiffs") against Defendants Aetna Life Insurance Company ("Aetna"), TriNet Group, Inc. ("TriNet"), and the TriNet Open Access Managed Choice Plan (the "Plan") (collectively, "Defendants"). On August 2, 2013, Plaintiffs filed an Amended Complaint as a matter of course. Before the Court is Plaintiffs' request to file a Second Amended Complaint. For the following reasons, Plaintiffs' motion is GRANTED in part and DENIED in part.
I. Background
The Court assumes general familiarity with the facts of this case, which are set forth in greater detail in this court's Opinion & Order issued on November 11, 2013. To summarize, Plaintiff Bridget Curran was a member-participant and an insured under the Plan, as was her son, C.F.C., a minor. Aetna is the underwriter, insurer, and agent of the Plan and TriNet is the issuer and administrator of the Plan. On January 7, 2011, Plaintiff's minor son, C.F.C., underwent seoliosis surgery, which was performed by Dr. Rudolph F. Taddonio, an out-of-network health care provider. Dr. Taddonio submitted a Claim Form to Aetna following the surgery in the amount of $168, 500. Beginning in April 2011, and until September 2011, Aetna's website indicated under that it had approved a payment of $119, 658.42 for the scoliosis surgery and that such amount was to be "Paid by Plan." Dr. Taddonio ultimately received a total payment of $4, 443.99 from Aetna, which was made in two installments: $2, 988.70 was paid on March 10, 2011 and $1, 455.29 was paid on December 26, 2011. On May 31, 2011, Aetna notified Plaintiff by letter that it had made an error in approving the payment of $119, 658.42 and that a new case number was assigned to the claim.
Plaintiff submitted numerous letters to Aetna and TriNet in which she requested documentation relating to the claim approval and subsequent denial. Plaintiff specifically requested the documentation relating to the adverse determination. TriNet's response indicated that TriNet was not the claims fiduciary and that it had delegated all claims administration to Aetna, its insurance carrier.
The Plan terms and coverage information is contained in a Booklet-Certificate. Plaintiff was provided the Booklet-Certificate by TriNet. Together with "Additional Information, " the Booklet-Certificate constituted the Summary Plan Description ("SPD").
II. Procedural History
On January 14, 2013, Plaintiffs filed a Complaint against Aetna, TriNet, and the Plan. Defendants filed a motion to dismiss on May 8, 2013. That motion to dismiss was denied without prejudice by the Honorable Judge Karas for failure to comply with the court's individual practices. The case was then reassigned to the undersigned on July 25, 2013. On July 30, 2013, the parties participated in a pre-motion conference during which Defendants' proposed motion to dismiss was substantively discussed. Subsequently, before Defendants filed their motion to dismiss, Plaintiffs filed an Amended Complaint on August 2, 2013 ("First Amended Complaint" or "FAC"). Defendants' motion to dismiss was filed on October 15, 2013. The Court issued its decision on November 11, 2013, which dismissed Plaintiffs' third and fourth claims and Plaintiffs' second claim to the extent that it sought statutory damages. Defendants answered the Amended Complaint on December 2, 2013. At a conference before this Court on December 5, 2013, Plaintiffs sought leave to file a motion to amend her Complaint for the second time. Plaintiffs' motion to file a Second Amended Complaint ("Proposed Second Amended Complaint" or "PSAC") was filed on February 21, 2014.
III. Legal Standard for Motion to Amend
Under Fed.R.Civ.P. 15(a), a party may amend its pleading after a responsive pleading has been served "only by leave of court or by written consent of the adverse party. Fed.R.Civ.P. 15(a). "[T]he court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). The court should grant leave to amend the complaint "[i]n the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.'" In re Alcon Shareholder Litigation, 719 F.Supp.2d 280, 281-82 (S.D.N.Y. 2010) (quoting Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). "A proposed amendment is futile if the proposed claim could not withstand a 12(b)(6) motion to dismiss." Fortune v. Grp. Long Term Disability Plan for Emps. of Keyspan Corp., 588 F.Supp.2d 339, 341 (E.D.N.Y. 2008), aff'd 391 F.Appx. 74, 80 (2d Cir. 2010) (citation omitted).
In this context, it is important to note that "pleading is not an interactive game in which plaintiffs file a complaint, and then bat it back and forth with the Court over a rhetorical net until a viable complaint emerges." In re Merrill Lynch Ltd. P'ships Litig., 7 F.Supp.2d 256, 276 (S.D.N.Y. 1997). "Rather, plaintiffs have the responsibility to plead their case adequately, without defendants' or the Court's assistance." Id.
IV. Discussion
a. Plaintiffs' Proposed Amended Second Cause of Action
Plaintiffs' Proposed Amended Complaint revises the second cause of action to assert statutory penalties under ERISA §502(c) pursuant to violations of ERISA §§ 502(a)(1)(B), 404(a)(1)(D), and 104(b)(4), which were not previously pleaded in either the Complaint or the First Amended Complaint. Plaintiffs' claim for relief for statutory penalties in the First Amended Complaint states as follows[1]:
On the SECOND CLAIM, declaratory and Injunctive Mandamus Judgment against Defendants Aetna and TriNet for violation of Sections 503 and 505 of ERISA, 29 U.S.C. Sections 1133 and 1135 and Section 2560.503-1, U.S. Department of Labor Regulations; and an order and judgment, in the discretion of the District Court, imposing the penalties and fines against Defendants, severally and jointly, as prescribed by ERISA Section 502(c)(1), 29 U.S.C. Section 1132(c)(1).
FAC p. 10. In the Proposed Second Amended Complaint, the claim for relief states:
On the SECOND CLAIM, declaratory and Injunctive (Mandamus) Order and Judgment against Defendants, severally and jointly, for enforcement of ERISA Sections 404(a)(1)(A), (B), and (D), 502(a)(1)(B), 503, 505, 29 U.S.C. Sections 1104(a)(1)(A), (B), and (D), 1132(a)(1)(B), 1133, and 1135; and 29 C.F.R. Section 2560.503-1, U.S. Department of Labor Regulations; and an order and judgment, in the discretion of the District Court, imposing the penalties and fines against defendant TriNet as Plan Administrator for violations of ERISA Sections 502(a)(1)(B), 404(a)(1)(D), and 104(b)(4), respectively, as determined by the District Court, pursuant to ERISA Section 502(c)(1)(B), 29 U.S.C. Section 1132(c)(1)(B).
PSAC p. 12. Defendants argue that the motion to amend should be denied under the law of the case doctrine and because the amendment is futile.
i. ERISA §§ 503, 505 and U.S. Department of Labor Regulation
"Under the law of the case doctrine, a decision on an issue of law made at one stage of a case becomes binding precedent to be followed in subsequent stages of the same litigation." In re PCH Assocs., Inc., 949 F.2d 585, 592 (2d Cir. 1991). In this Court's Opinion & Order issued on November 15, 2013, the Court granted Defendants' motion to dismiss Plaintiffs' claim for statutory penalties under ERISA Section 502(c)(1)(B) for claimed violations of Sections 503 and 505 of ERISA and Department of Labor Regulation Section 2560.503-1. Plaintiffs may not continue to assert these violations as a basis for statutory penalties, as she proposes to do in her Second Amended Complaint. In fact, in her reply brief, Plaintiffs acknowledge that "this Court's prior ruling as to the imposition of Section 502(c) sanctions applies by its terms only to defendants' alleged violations of ERISA Sections 503 and 505." Reply Br. 5. Plaintiffs continue to assert these sections as a basis for imposition of sanctions, which is improper and contrary this Court's previous order. The Court has already dismissed such requests for relief, and therefore, Plaintiffs may not reassert them.
ii. Sanctions for Violations of "Enforce Your Rights" Provision
Plaintiffs' "new" request for statutory penalties, then, is based on violations of ERISA Sections 404(a)(1)(A), (B), and (D), 502(a)(1)(B), 29 U.S.C. §§ 1104(a)(1)(A), (B), and (D), 1132(a)(1)(B). Plaintiffs propose to allege that Defendants were required to provide the requested documents under the "Enforce Your Rights" provision of the SPD and the refusal to do so was a violation of ERISA sections 502(a)(1)(B) and 404(a)(1)(D). Plaintiffs further claim that violation of these two sections subjects Defendants to statutory penalties under ERISA Section 502(c)(1)(B).
If the proposed claims would fail as a matter of law using the same standard as on a 12(b)(6) motion to dismiss, the Court must disallow the proposed amended complaint as futile. The PSAC seeks ERISA sanctions through different statutory vehicles than those alleged in the two previous complaints. The Court must again look to the language of Section 502(c), which provides for the possibility of sanctions:
Any administrator... who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper.
29 U.S.C. § 1132(c)(1). This section makes clear that a monetary penalty for failure to comply with the section may only be imposed where the administrator fails to comply with a request for information that the administrator is required to produce by ERISA. This means that only sections of ERISA falling within "sections 1001 through 1191c, " Anderson v. Sotheby's Inc. Severance Plan, No. 04 Civ. 8180SASDFE, 2005 WL 1309056, at *2 (S.D.N.Y. May 31, 2005), which require the production of documents may be the basis for a court's consideration of statutory penalties.
Plaintiffs attempt to create a two-step path to the application of section 502(c): she argues that (1) because the Enforce Your Rights provision requires production of documents and (2) because Section 502(a)(1)(B) allows a participant to enforce his or her rights under a plan, a failure to produce documents under the Plan provision is a violation of an ERISA section which should allow for penalties. However, following Plaintiffs' argument would open up plan administrators to penalties any time there was a violation of an ERISA provision falling within the relevant subchapter, which is not what the plan language of the penalty section provides. The Sections that Plaintiffs allege were violated by a failure to follow the Enforce Your Rights provision have nothing to do with the provision of documents to plan participants. Section 502(a)(1)(B) allows a plan participant or beneficiary to bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). This section says nothing about producing documents. Similarly, section 404(a)(1)(D) requires plan fiduciaries to act "in accordance with the documents and instruments governing the plan....[, ]" but itself says nothing about the provision of documents. To extend the scope of section 502(c) to apply to sections that do not directly require the provision of documents could open up a plan administrator to penalties for violation of any section of ERISA. This is not what section 502(c) provides through its plain language and cannot have been the intention of Congress.
Turning to the "Enforce Your Rights" section itself, the language is required to be in each plan by the U.S. Department of Labor Regulations, as stated in 29 C.F.R. 2520.201-3(t)(2). The Court reiterates now what it stated in its November Opinion: violations of Department of Labor Regulations cannot give rise to statutory penalties. See, e.g., Curran v. Aetna Life Ins. Co., No. 13-cv-00289 (NSR), 2013 WL 6049121, at *5 (S.D.N.Y. Nov. 15, 2013); Mohamed v. Sanofi-Aventis Pharmaceuticals, No. 06 Civ. 1504, 2009 WL 4975260, at *21 (S.D.N.Y. Dec. 22, 2009).
iii. Failure to Provide SPD
This Court stated in its November Opinion that "Plaintiff never specifically requested a copy of the SPD because Plaintiff was in possession of the SPD at all times, " and that therefore "sanctions under § 502(c) cannot be predicated on the failure to provide the SPD." Curran, 2013 WL 6049121, at *4. Defendants state that this precludes Plaintiffs from pursuing sanctions for the failure to provide a copy of the SPD. As Plaintiffs note, the original complaint and the amended complaint are void of allegations that either Aetna or TriNet failed to provide a copy of the SPD. The complaints all state that Ms. Curran was issued the SPD. Complaint ¶ 17; FAC ¶ 17; PSAC ¶ 17. What Plaintiffs now argue is that it is irrelevant that Plaintiffs were in possession of the SPD because § 104(b)(4) allows a participant or beneficiary to request a copy of the SPD at any time. The Court agrees with Plaintiffs.
Under Section 104(b)(4) of ERISA, "The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary, [sic] plan description...." 29 U.S.C. § 1024(b)(4). The same section of ERISA provides that the plan administrator must provide each plan participant and beneficiary a copy of the SPD within a certain amount of time that he or she becomes a participant or beneficiary. 29 U.S.C. § 1024(b)(1). Therefore, the sections would be contradictory if a plan administrator was not required, upon request, to provide a copy of the SPD to a participant or beneficiary who may already possess the SPD because theoretically, every participant or beneficiary should be in possession of the SPD by virtue of section 104(b)(1). Therefore, the failure to provide a copy of the SPD after a written request is made constitutes a violation of Section 104(b)(4), whether or not the requestor was previously provided a copy of the SPD.
The law of the case doctrine states that "a court should not reopen issues decided in earlier stages of the same litigation." Agostini v. Felton, 521 U.S. 203, 236 (1997); see also Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) ("The law of the case doctrine, while not binding, counsels a court against revisiting its prior rulings in subsequent stages of the case absent cogent and compelling reasons such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice"). The law of the case doctrine is, however, discretionary. See Maraschiello v. City of Buffalo Police Dep't, 709 F.3d 87, 97 (2d Cir. 2013) (law of the case doctrine is "discretionary and does not limit a court's power to reconsider its own decisions prior to final judgment." (internal quotation marks omitted)); 18B Charles Allan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure 4478, at 637 (2d ed. 2002) ("The courts are understandably reluctant to reopen a ruling once made.... Reluctance, however, does not equal lack of authority. The constraint is a matter of discretion. So long as the same case remains alive, there is power to alter or revoke earlier rulings."). Although Defendants assert that the Court has already made a definitive ruling with respect to Plaintiffs request for a copy of the SPD, the Court is now exercising its discretion to revisit its earlier ruling. This is especially so due to the fact that the PSAC now specifically alleges that Defendants failed to provide a copy of the SPD.
Defendants alternative argument is that Plaintiffs' request for the SPD was made to Aetna, not TriNet, and that therefore, the request was not properly made to the plan administrator. See Giordano v. Thomson, No. 03-CV-5672 JS AKT, 2007 WL 1580081, at *4 (E.D.N.Y. May 29, 2007) ("A plan administrator may not be held liable for requests directed to someone other than the administrator."). However, as Defendants admit, the letters Plaintiffs sent to Aetna were enclosed with a letter sent to TriNet on March 9, 2012. As the current procedural posture is analogous to a motion to dismiss under Rule 12(b)(6), the Court finds that Plaintiffs have adequately alleged that it requested a copy of the SPD to the plan administrator and was not provided with a copy. Therefore, Plaintiffs claim for statutory penalties under Section 502(c) of ERISA based on a failure to provide a copy of a document that the plan administrator was required to produce under ERISA 104(b)(4) is not futile. Plaintiffs' motion to amend their complaint in accordance with this finding is granted.
b. Plaintiff's Third and Fourth Causes of Action
"It is well settled that an amended pleading ordinarily supersedes the original and renders it of no legal effect. See, e.g., Harris v. City of New York, 186 F.3d 243, 249 (2d Cir. 1999). However, we have not yet addressed whether there is a futility exception to this rule where a party fails to advance in a subsequent pleading a claim or defense that already has been rejected by the court. [Court points to a Circuit split on this issue]. We see no reason to require repleading of a claim or defense that explicitly has been denied." In re Chrysen/Montenay Energy Co., 226 F.3d 160, 162 (2d Cir. 2000) (holding that defendants' failure to include an arbitration defense in amended answers did not constitute an express waiver of the defense). Accordingly, it is not necessary for Plaintiffs to continue to assert these claims in order to preserve them.
V. Conclusion
Based on the foregoing, Plaintiff's motion to amend is granted, in part. The Clerk of the Court is respectfully requested to terminate this motion, Docket No. 38.
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February 9, 2010
MICHAEL PASSARO, APPELLANT,v.163-15 NORTHERN FLUSHING CORP., ET AL., RESPONDENTS.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Nassau County (Parga, J.), entered August 19, 2008, as granted those branches of the separate motions of the defendant 163-15 Northern Flushing Corp. and the defendant Lorich Construction Management, LLC, which were for summary judgment dismissing the cause of action pursuant to Labor Law § 241(6) based on an alleged violation of 12 NYCRR 23-1.7(e)(2), and (2) so much of a judgment of the same court entered October 10, 2008, as, upon the order, is in favor of the defendants and against him, dismissing the complaint. The notice of appeal from the order dated August 18, 2008, is deemed also to be a notice of appeal from the judgment (see CPLR 5501[c]).
This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J.P., HOWARD MILLER, JOHN M. LEVENTHAL and CHERYL E. CHAMBERS, JJ.
(Index No. 2102/07)
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
The defendants satisfied their prima facie burden of establishing their entitlement to judgment as a matter of law by demonstrating that the alleged violation of 12 NYCRR 23-1.7(e)(2), which formed the basis for the plaintiff's Labor Law § 241(6) cause of action, was inapplicable as he was not injured by a "sharp projection" (Tucker v Tishman Constr. Corp. of N.Y., 36 AD3d 417, 417; Dalanna v City of New York, 308 AD2d 400, 401; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324; cf. Lenard v 1251 Ams. Assoc., 241 AD2d 391, 393). In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d at 324). Accordingly, the Supreme Court properly awarded summary judgment in favor of the defendants dismissing the cause of action pursuant to Labor Law § 241(6) based on an alleged violation of 12 NYCRR 23-1.7(e)(2).
RIVERA, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.
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United States District Court, Ninth Circuit
July 31, 2013
ARISTEO SERRATO ALVARADO, Petitioner,v.G. SWARTHOUT, Warden, Respondent.
FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS (Doc. 11) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS
JENNIFER L. THURSTON, Magistrate Judge.
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on March 28, 2013.[1] On April 19, 2013, the Court ordered Respondent to file a response to the petition. (Doc. 7). On June 18, 2013, Respondent filed the instant motion to dismiss, contending that the petition should be dismissed as untimely and as a second and successive petition. (Doc. 11). On July 18, 2013, Petitioner filed his opposition to the motion to dismiss, arguing that the petition is not successive because he is raising a claim based on newly discovered evidence that was not available to him in the prior federal petition. (Doc. 16). On July 25, 2013, Respondent filed a reply to the opposition. (Doc. 17).
A. Procedural Grounds for Motion to Dismiss
As mentioned, Respondent has filed a Motion to Dismiss the petition as being filed outside the one year limitations period prescribed by Title 28 U.S.C. § 2244(d)(1). Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed Respondent's to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass , 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley , 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery , 533 F.Supp. at 1194 & n. 12.
In this case, Respondent's Motion to Dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s one year limitation period and on the fact that the petition is a second and successive one. Because Respondent's Motion to Dismiss is similar in procedural standing to a Motion to Dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal Answer, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4.
B. Second and Successive Petition.
The documents provided by Respondent establish that Petitioner has previously filed a federal petition challenging the same conviction and sentence in case no. 1:99-cv-06122-OWW-HGB. (LD 17-20). In that case, Petitioner challenged his 1995 conviction on two grounds, i.e., instructional error and insufficient evidence. On April 20, 2000, the Court issued Findings and Recommendations to deny the petition on its merits; on July 13, 2000, the District Judge adopted those Findings and Recommendations, entered judgment against Petitioner, and closed the case.
A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The Court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis of the claim was not previously discoverable through due diligence, and these new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B).
However, it is not the district court that decides whether a second or successive petition meets these requirements that allow a petitioner to file a second or successive petition, but rather the Ninth Circuit. Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." In other words, Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive petition in district court. See Felker v. Turpin , 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave to file the petition because a district court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United States , 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart , 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States , 96 F.3d 990, 991 (7th Cir. 1996).
Because the current petition was filed after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current petition. Lindh v. Murphy , 521 U.S. 320, 327 (1997). Although Petitioner contends that he could not have known of the newly discovered evidence after the resolution of his first petition, as discussed above, whether Petitioner's allegations satisfy the exception provided in 28 U.S.C. § 2244(b)(2)(A)-(B) is not a question for this Court, but, rather, it is a question that must be addressed to the United States Court of Appeals for the Ninth Circuit.
Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file this successive petition attacking his 1995 conviction. That being so, this Court has no jurisdiction to consider Petitioner's renewed application for relief from that conviction under § 2254 and must dismiss the petition. See Greenawalt , 105 F.3d at 1277; Nunez , 96 F.3d at 991. If Petitioner desires to proceed in bringing this petition for writ of habeas corpus, he must first file for leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244 (b)(3).
C. Limitation Period For Filing Petition For Writ Of Habeas Corpus
However, even if the Court had jurisdiction to consider this petition, it is untimely. On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy , 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood , 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on March 28, 2013, and thus, it is subject to the provisions of the AEDPA.
The AEDPA imposes a one year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
In most cases, the limitation period begins running on the date that the petitioner's direct review became final. Here, Petitioner was convicted on October 26, 1995 in the Tulare County Superior Court of two counts of second-degree murder and attempted murder and sentenced to a prison term of 48 years to life. (Doc. 1, p. 1). Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District ("5th DCA"), which, on February 5, 1998, modified the judgment to reduce the firearm use enhancements from ten to five years but in all other respects affirmed the judgment and sentence. (Doc. 13, Lodged Documents ("LD") 2). Petitioner then filed a petition for review in the California Supreme Court which was denied on April 22, 1998. (LD 4). Thus, direct review would have concluded on July 21, 1998, when the ninety day period for seeking review in the United States Supreme Court expired. Barefoot v. Estelle , 463 U.S. 880, 887 (1983); Bowen v. Roe , 188 F.3d 1157, 1159 (9th Cir.1999); Smith v. Bowersox , 159 F.3d 345, 347 (8th Cir.1998). Petitioner would then have one year from the following day, July 22, 1998, or until July 21, 1999, absent applicable tolling, within which to file his federal petition for writ of habeas corpus.
As mentioned, the instant petition was filed on March 28, 2013, almost fourteen years after the date the one-year period would have expired. Thus, unless Petitioner is entitled to either statutory or equitable tolling, the instant petition is untimely and should be dismissed.
D. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2)
Under the AEDPA, the statute of limitations is tolled during the time that a properly filed application for state post-conviction or other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2). A properly filed application is one that complies with the applicable laws and rules governing filings, including the form of the application and time limitations. Artuz v. Bennett , 531 U.S. 4, 8, 121 S.Ct. 361 (2000). An application is pending during the time that a California petitioner completes a full round of [state] collateral review, " so long as there is no unreasonable delay in the intervals between a lower court decision and the filing of a petition in a higher court. Delhomme v. Ramirez , 340 F.3d 817, 819 (9th Cir. 2003), abrogated on other grounds as recognized by Waldrip v. Hall , 548 F.3d 729 (9th Cir. 2008)(per curium)(internal quotation marks and citations omitted); see Evans v. Chavis , 546 U.S. 189, 193-194, 126 S.Ct. 846 (2006); see Carey v. Saffold , 536 U.S. 214, 220, 222-226, 122 S.Ct. 2134 (2002); see also, Nino v. Galaza , 183 F.3d 1003, 1006 (9th Cir. 1999).
Nevertheless, there are circumstances and periods of time when no statutory tolling is allowed. For example, no statutory tolling is allowed for the period of time between finality of an appeal and the filing of an application for post-conviction or other collateral review in state court, because no state court application is "pending" during that time. Nino , 183 F.3d at 1006-1007; Raspberry v. Garcia , 448 F.3d 1150, 1153 n. 1 (9th Cir. 2006). Similarly, no statutory tolling is allowed for the period between finality of an appeal and the filing of a federal petition. Id. at 1007. In addition, the limitation period is not tolled during the time that a federal habeas petition is pending. Duncan v. Walker , 563 U.S. 167, 181-182, 121 S.Ct. 2120 (2001); see also, Fail v. Hubbard , 315 F.3d 1059, 1060 (9th Cir. 2001)(as amended on December 16, 2002). Further, a petitioner is not entitled to statutory tolling where the limitation period has already run prior to filing a state habeas petition. Ferguson v. Palmateer , 321 F.3d 820, 823 (9th Cir. 2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."); Jiminez v. White , 276 F.3d 478, 482 (9th Cir. 2001). Finally, a petitioner is not entitled to continuous tolling when the petitioner's later petition raises unrelated claims. See Gaston v. Palmer , 447 F.3d 1165, 1166 (9th Cir. 2006).
Here, the documents lodged by Respondent with this motion to dismiss establish that Petitioner filed the following six state habeas petitions: (1) petition filed in the Superior Court of County on Tulare on December 24, 2002, and denied on January 22, 2003 (LD 5, 6);[2] (2) petition filed in the 5th DCA on March 13, 2003, and denied on June 10, 2003 (LD 7, 8); (3) petition filed in the California Supreme Court on October 14, 2003, and denied on July 28, 2004 (LD 9, 10); (4) petition filed in the Tulare County Superior Court on December 9, 2010, and denied on December 28, 2010 (LD 11, 12); (5) petition filed in the 5th DCA on January 31, 2011, and denied on August 10, 2011 (LD 13, 14); and (6) petition filed in the California Supreme Court on November 10, 2011, and denied on April 11, 2012 (LD 15, 16).
Here, Petitioner is not entitled to any statutory tolling because the limitation period expired on July 21, 1999, three and one-half years before Petitioner filed his first state habeas petition on December 24, 2002. A petitioner is not entitled to tolling where the limitations period has already run prior to filing a state habeas petition. Green v. White , 223 F.3d 1001, 1003 (9th Cir. 2000); Jiminez v. Rice , 276 F.3d 478 (9th Cir. 2001); see Webster v. Moore , 199 F.3d 1256, 1259 (11th Cir. 2000) (same); Ferguson v. Palmateer , 321 F.3d 820 (9th Cir. 2003)("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."); Jackson v. Dormire , 180 F.3d 919, 920 (8th Cir. 1999) (petitioner fails to exhaust claims raised in state habeas corpus filed after expiration of the one-year limitations period). Accordingly, he cannot avail himself of the statutory tolling provisions of the AEDPA.
E. Equitable Tolling.
The running of the one-year limitation period under 28 U.S.C. § 2244(d) is subject to equitable tolling in appropriate cases. See Holland v. Florida, ___ U.S. ___ , 130 S.Ct. 2549, 2561 (2010); Calderon v. United States Dist. Ct. , 128 F.3d 1283, 1289 (9th Cir. 1997). The limitation period is subject to equitable tolling when "extraordinary circumstances beyond a prisoner's control make it impossible to file the petition on time." Shannon v. Newland , 410 F.3d 1083, 1089-1090 (9th Cir. 2005)(internal quotation marks and citations omitted). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty , 187 F.3d 1104, 1107 (9th Cir. 1999). "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Holland, 130 S.Ct. at 2652; Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807 (2005). "[T]he threshold necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule." Miranda v. Castro , 292 F.3d 1062, 1066 (9th Cir. 2002)(citation omitted). As a consequence, "equitable tolling is unavailable in most cases." Miles , 187 F.3d at 1107.
Here, Petitioner has made no express claim of entitlement to equitable tolling and, based on the record now before the Court, the Court sees no basis for such a claim. However, Petitioner's opposition to the motion to dismiss could be construed as either a claim that newly discovered evidence shows he is actually innocent, a fact that would avoid the harsh consequences of the limitation period, or, alternatively, that the factual basis of his newly discovered evidence claim could not have been discovered with the exercise of due diligence until recently, thus, again, avoiding the operation of the statute of limitations.
1. Discovery of the Factual Basis.
As mentioned, under § 2244(d)(1)(D), the one-year limitation period starts on the date when "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence, " Hasan v. Galaza , 254 F.3d 1150, 1154, fn. 3 (9th Cir. 2001)( quoting Owens v. Boyd , 235 F.3d 356, 359 (7th Cir. 2000), not when the factual predicate was actually discovered by Petitioner and not when Petitioner understands the legal theories available to him or the legal significance of the facts that he discovers. Due diligence does not require "the maximum feasible diligence, " but it does require reasonable diligence in the circumstances. Schlueter v. Varner , 384 F.3d 69, 74 (3d Cir. 2004)( quoting Moore v. Knight , 368 F.3d 936, 940 (7th Cir. 2004); see Wims v. United States , 225 F.3d 186, 190, fn. 4 (2d Cir. 2000). It is not necessary for a petitioner to understand the legal significance of the facts; rather, the clock starts when a petitioner understands the facts themselves. Hasan , 254 F.3d at 1154 fn. 3; Owens , 235 F.3d at 359 ("Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognized their legal significance.") To "have the factual predicate for a habeas petition based on ineffective assistance of counsel, a petitioner must have discovered (or with the exercise of due diligence could have discovered) facts suggesting both unreasonable performance and resulting prejudice." Hasan , 254 F.3d at 1154. In order to claim the benefit of tolling in this case, it is Petitioner's burden to establish it. Smith v. Duncan , 297 F.3d 809, 814 (9th Cir. 2002); Tholmer v. Harrison, 2005 WL 3144089 (E.D.Cal. Nov. 22, 2005), *1; see Hinton v. P. Enters. , 5 F.3d 391, 395 (9th Cir. 1993)(party seeking tolling bears the burden of alleging facts which would give rise to tolling).
The petition can be construed as arguing that the one-year period did not commence until after Petitioner discovered the factual predicate for his newly discovered evidence, i.e., June 19, 2010, the date Jesus Hernandez signed his declaration. However, the date of the declaration is not determinative of the trigger date for the one-year period under § 2244(d)(1)(D); rather, the trigger date is the date Petitioner became aware of the facts underlying his claim. Here, Petitioner does not specify when he became aware that Jesus Hernandez had observed the shootings from his front yard. However, considering the shootings took place in a relatively insular Latino neighborhood where families knew each other and that sixteen years have transpired since the time of the shootings during which Hernandez apparently remained silent due to fear, it strains credulity that those affiliated with Petitioner, or Petitioner himself, would not have been aware of what Hernandez observed from his vantage point in his front yard. That being so, it is irrelevant that Hernandez refused to come forward; Petitioner would have almost certainly been aware of the factual basis for this claim, i.e., Hernandez's observations, and could have raised it in a timely manner regardless of whether Hernandez was willing to testify or not. That he waited for sixteen years until Hernandez apparently felt safe enough to come forward strongly suggests a lack of due diligence on Petitioner's part. In short, the record now before the Court does not support deviating from the normal "trigger" date for the one-year period of July 22, 1998.
2. Actual Innocence.
Petitioner's opposition, asserting the discovery of newly discovered evidence, could also be construed as an argument that Petitioner should be excepted from the effects of the one-year limitation period because he is actually innocent. In McQuiggin v. Perkins , 569 U.S. ___, 2013 WL 2300806 (2013), the United States Supreme Court held that "actual innocence" could be an exception to the one-year limitation bar in the AEDPA:
We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, [3] or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup , 513 U.S., at 329; see House , 547 U.S., at 538 (emphasizing that the Schlup standard is "demanding" and seldom met). And in making an assessment of the kind Schlup envisioned, "the timing of the [petition]" is a factor bearing on the "reliability of th[e] evidence" purporting to show actual innocence. Schlup , 513 U.S., at 332.
McQuiggin, at *3. The Supreme Court went on to explain an "unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing, and, thus, "a court may consider how the timing of the submission and the likely credibility of [a petitioner's] affiants bear on the probable reliability of evidence [of actual innocence]." Id. at *11, quoting Schlup , 513 U.S. at 332. See also Lee v. Lampert, 653 F.3d 929, 932-933 (9th Cir. 2011)( en banc )("a credible claim of actual innocence constitutes an equitable exception to AEDPA's limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits.") The "Schlup gateway, " however, may only be employed when a petitioner "falls within the narrow class of cases...implicating a fundamental miscarriage of justice. Schlup , 513 U.S. at 314-315; McQuiggin, at *9. However, "[t]o ensure that the fundamental miscarriage of justice exception would remain rare' and would only be applied in the extraordinary case, ' while at the same time ensuring that the exception would extend relief to those who were truly deserving, " the Supreme Court explicitly limited the equitable exception to cases where a petitioner has made a showing of innocence. Schlup, 513 U.S. at 321. "The Supreme Court did not hold that a petitioner may invoke Schlup whenever he wants a trial do-over." Lee , 653 F.3d at 946 (Kozinski, J., concurring.)
The rule announced in McQuiggin is not a type of equitable tolling, which provides for an extension of the time statutorily prescribed, but an equitable exception to § 2244(d)(1). McQuiggin at *7. Moreover, the Court noted that actual innocence, if proven, merely allows a federal court to address the merits of a petitioner's constitutional claims; the Court has yet to address whether "a freestanding claim of actual innocence" provides a separate basis for granting habeas relief. McQuiggin at *7.
Here, Petitioner has failed to meet Schlup's exacting standard. As the Tulare County Superior Court concluded when it denied Petitioner's state habeas petition raising this newly discovered evidence, the only additional piece of evidence not presented previously, either at trial or in Petitioner's first state habeas petition in 2003, is the declaration of Jesus Hernandez, who indicates that he saw Francisco Sanchez fire a shot at Petitioner before Petitioner shot and killed Sanchez. (Doc. 1, pp. 93-94). Hernandez states that he did not come forward earlier because of fear. (Id.). As the Superior Court pointed out, however, Petitioner had already, and without provocation, shot and killed another member of the Sanchez family and wounded a third. (Id.). Francisco Sanchez then fired a shot that hit Petitioner and Petitioner then turned and fatally shot Sanchez. As the state court notes, the "evidence at the trial was overwhelming that petitioner shot all victims without provocation, " and, given the well-established chronology of the various shootings, Hernandez' declaration "essentially supports the claims of all other witnesses" at trial. (Id.). Moreover, the Superior Court expressed skepticism that such evidence would have any significant probative value coming, as it did, some sixteen years after the original crimes were committed. (Id.). Finally, by noting that "[i]t is only after all this time [i.e., sixteen years] that this alleged witness comes forward, " the Superior Court appears to cast doubt on the credibility of such a tardy witness.
Given the lapse of sixteen years before the witness Hernandez came forward with purportedly exculpatory evidence, and considering the minimal exculpatory value of such evidence, the Court has little trouble concluding that Petitioner has failed to establish that, "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup , 513 U.S. at 329.
Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss (Doc. 11), be GRANTED and the habeas corpus petition be DISMISSED for Petitioner's failure to comply with 28 U.S.C. § 2244(d)'s one year limitation period and as a second and successive petition.
This Findings and Recommendation is submitted to the United States District Court Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within twenty-one (21) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C).
The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).
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Discussion in 'iPod touch 2G Jailbreak: redsn0w, 24kpwn, etc.' started by W00DI, Mar 1, 2009.
Whats the difference? What is red jolt considered?
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The Serum Protein Electrophoresis test measures certain proteins in the blood. Proteins perform a number of vital functions in the body including transporting nutrients and fighting diseases. This test uses an electrical field to separate proteins into groups based on size, shape and electrical charge. Results for this test will provide measurements for the five major protein factions, Albumin, Alpha-1-Globulin, Alpha-2-Globulin, Beta Globulin and Gamma Globulin, as well as Total Protein, Total Globulin, Albumin/Globulin Ratio and M-Spike if present. The results from a protein electrophoresis test can help to aid in the diagnosis of a number of conditions such as certain types of cancer, multiple sclerosis, liver or kidney disease, problems with the immune system, poor nutrition, dehydration, infection or inflammation.
A Protein Electrophoresis test is usually ordered as a follow up to abnormal results for tests such as Total Protein, Albumin, Urinalysis (showing elevated protein), CBC (showing low WBC or RBC counts) or Calcium. It can also be used to monitor treatment for various conditions.
Turnaround time for the Protein Electrophoresis test is typically 2-3 business days.
Note: Result turn around times are an estimate and are not guaranteed. Our reference lab may need additional time due to weather, holidays, confirmation/repeat testing, or equipment maintenance.
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ERIC Number: ED182604
Record Type: RIE
Publication Date: 1979
Pages: 31
Abstractor: N/A
Reference Count: 0
Nuclear Technology. Course 31: Quality Assurance Practices. Module 31-5, Nonconforming Materials.
Pritchard, Jim; Espy, John
This fifth in a series of eight modules for a course titled Quality Assurance Practices describes the essential elements of a nonconforming material control system, including purpose and application. The module follows a typical format that includes the following sections: (1) introduction, (2) module prerequisites, (3) objectives, (4) notes to instructor/student, (5) subject matter, (6) materials needed, (7) procedures, (8) data table, (9) reference materials, (10) test. (The course is one of fifteen technical courses for the second year of a two-year postsecondary curriculum in Nuclear Quality Assurance/Quality Control Technology.) (LRA)
Publication Type: Guides - Classroom - Learner; Guides - Classroom - Teacher
Education Level: N/A
Audience: N/A
Language: English
Sponsor: Office of Education (DHEW), Washington, DC.
Authoring Institution: General Physics Corp., Columbia, MD.
Identifiers: Nonconforming Materials; Nuclear Energy Occupations; Nuclear Power Plant Technicians; Nuclear Technology
Note: For related documents see CE 024 245-298


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Today, I'd like to share with you the back story and a brief set of details on how to shoot lighting! While en route back to the house the other day, I noticed that the clouds were passing over the mountains and the sun was starting to set. It had the makings for a really nice sunset. Never one to turn away the opportunity to capture a sunset, I hurried home and gathered my gear, and took off to my favorite spot near the house for landscape work. Read more
Go soak your gear!
It pays to review your web traffic periodically because I just learned a way that your bathtub can be used for photography! Not only is it a good place to mellow out after a stressful shoot, but it also makes a heckuva softbox! I was on a forum that had referenced the blog and a guy had some product that he placed in his tub. I thought it was an interesting idea, and decided to give it a try. As it turns out, the tub is a great place to put your gear! Granted, not to soak it (sorry, but I had to tease the title that way), but to act as a great background and softbox combined in one.
Here's a few sample shots. For all the tech-types, these are pretty much straight out of camera (or sooc) – all I did was adjust the WB for Flash and adjust the ACR sharpening from 25 to 75. All are resized to 650px wide for the blog. Here's the setup: I took the Canon kit lens (18-55) on my 40D, threw on the 550EX, and set everything to default values. Shutter at standard sync speed of 250, aperture at f8 and ISO at 100. I powered the 550EX at it's standard setting, on camera (relax strobists – I can hear you shuddering from here), and started firing a few shots. I pointed the flash to camera right and got this:
Yup, that's a God-awful shot, with a nasty shadow. Perhaps I could ditch the shadow. Since we're not exactly using conventional wisdom here, let's try it with the flash pointed straight at the subject:
Hey! That's actually not too bad. It's not that great, and still definitely a "Meh" kind of shot as it's still got something of a shadow. So, I spun the flash to fire above me and bounce off the ceiling:
Voila! You know what? For being a spur of the moment thing, and without a lot of pre-planning or preparation, that's not bad at all. And, it was shot in a bathtub! Anyone else out there have a bathtub? Try some shots in it for different items. I used a tape measure, but what about a pen, or a microphone, or a printer, or even a lens? I bet you could get some pretty cool results with very little setup! Anyone else have some odd or unusual ways to get clean backgrounds and even lighting on the cheap? Feel free to share your thoughts, ideas, and feedback in the comments. Feel free to link your own efforts there too! Happy shooting all and we'll see you back here again tomorrow!
Photography Apps for the Smartphone, Part 2
Earlier this week, I started diving back into active blogging with a review/write-up of a smartphone app called SetMyCamPro. You can read more about it here, but I'd like to continue the theme of some photo app reviews, because the best camera truly is the one you have with you, and for most of us, that happens to be the camera built into our phones. With practice and a photographic eye, you can get some pretty excellent images from these cameras. Case in point, here's one I got of an Ohio sunset just a few nights ago:
Granted, not going to win any contests, but something worth remembering for me. Anyway, enough of the shot that I took, instead it's time to dive into the second App I am reviewing here on the blog.
I actually reviewed this app before but it was part of a promotional giveaway article for the vendor – and it's called Easy Release! The concept is pretty simply – use your phone, ipod or iPad screen to generate a model or property release, have the individual sign from your touch-sensitive device (which most phones are these days anyway), and you're done. It's a handy app to have for those "on the go" kinds of shoots where it's not in a studio, or something last minute. For those, you'd probably want to have a more professional setup in place with actual pens and papers to have clients sign off on. (In addition to an event contract, licensing and usage, and much more. In fact, I have a two-Ebook combo that gives you all the paperwork you need to get started in photography, including model releases (adult and minor), event contracts, and a how-to guide…you can get it here for only $30:
Now, for those that prefer the digital mobile on-the-go style of releases for your business, then let's dig into Easy Release!
On downloading it, the first thing you'll want to do is configure add an image or logo of your business to your device – this is to add it to your logo/branding to the header that will be used when emailing a copy of the signed release to your clients! (Yes, that's right, you can email them a copy right from your phone!) If you want to set up multiple brands, the option is there from their Pro Pack (only $3.99), but if one is enough, then you are set with just the base one in the app. Enter your logo, the company name, and your contact info, and that's all you need:
The rest is pretty straightforward – you're simply selecting the release type (model or property), taking the image, and then the most tedious part – where you enter all their contact information, including phone, address, email, and other pertinent data. For my own two cents, I wish they would add the option of making an audio recording of this data for later transcription so you can get to the signing quicker. I've gotten fairly proficient at creating these, and actually used it on more occasions than I can count off the top of my head – probably in the scores by now (that's 20's for those speaking in layman terms! LOL).
You can check out the app on the iTunes or Android Google Play stores here and here. No commissions to be had by me here, so feel free to either buy or go another route, but I think this is the benchmark that any digital model release has to stand up to, because these guys are top notch! This is, of course only my opinion, so I'd like to open the floor to others. What are your experiences with Easy Relase? What about alternatives? Are they cross-platform supported like this is (Android and iPhone)? I know it's a bit pricier than the average app, but for a working professional, the cost does seem justified to get something this robust and portable.
To that end, I am also open to suggestions for additional apps to review. I've got 3 more in the bank, but that doesn't mean we can't re-visit later if needed. Throw your suggestions for other apps in the comments section too, and I'll add to the list! Have a great weekend everyone and keep on shooting!


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5 Babysitting Jobs Found
occasional sitter needed for 9 month old
- Start date:
- Flexible
- 10 miles away (JC, TN)
- $10/hr
- 1 child
just to give us the parents a break sometimes for 2-3 hrs.we take care of our baby 24/7 and get exhausted
Babysitter Needed For 2 Children In JC on...
Posted by Virginia V. on 12/5/2016
- Start date:
- 1/02
- 8 miles away (Johnson City, TN)
- $10/hr
- 2 children
I'm looking for a great babysitter for 2 girls, ages 8 and 9 weekly on Monday nights from 6:00-midnight beginning 1/2/2017. We do have cats, so please consider that when applying. We ask that you be willing to handle pickups/drop-offs VERY occasionally as needed. It is important to us that you... More
Long term sitter
Posted by Jenna W. on 12/3/2016
- Start date:
- 12/10
- 16 miles away (Bristol, VA)
- $12/hr
- 2 children
I will be working an overnight shift in January but training will be on 2nd shift for about a month. The sitter needs to be at my house no later than 1:30 pm because I will be driving to Morristown. After January the hours will change to just 4 or 5 a day on the days that I work so I can sleep.... More
What I need from you
Posted by Amber S. on 11/21/2016
- Start date:
- 11/30
- 15 miles away (Bristol, VA)
- $9/hr
- 2 children
I need someone who is willing to come to my house to babysit my two young daughters. Their ages are 2.5 and 15 months. They are very interactive and smart so I do need someone willing to do crafts with them, read them books, play with them, and just give them a lot of attention. My schedule will... More
Need fexible chare for 1 infant
Posted by Daisia H. on 11/18/2016
- Start date:
- 11/18
- 10 miles away (Johnson City, TN)
- $6/hr
- 1 child
I need a sitter who can laugh, play, and watch cartoons with my son. I nwed someone flexible on pay as i am a server. This person needs to be honest, dedicated, outgoing, and just love my child like i do.


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GWA's result in February missed consensus estimates and guidance was lowered. Cost increases, the A$ and price declines all offset attempted cost savings, so GWA needs to work harder.
Bathrooms & Kitchens saw margin expansion but with 70% of products imported and GWA's 32% premium pricing to peer product ranges, there are concerns over the company's structural issues.
Those concerns are reflected in the company's share price, which has fallen from a high around $3.25 in October, to presently be trading around $2.60.
We have a solid bearish structure in place, with the shorter-term EMAs crossed lower and the price action below the longer-term EMA filter, which remains negative.
More recently, the price action has been back to retest and confirm as resistance the $2.70-75 region, an area which previously acted as support on multiple occasions.


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VIDEO | PS4 Thursday, September 15, 2016 | 10:33 AM
TGS: Gran Turismo Sport is back
TGS: Oval track (off-screen)
TGS: Rally (short, incompetent driver)
TGS: Brands Hatch (off-screen)
TGS: Nurburgring
TGS: City track (off-screen)
TGS: Brands Hatch short (off-screen)
TGS: Rally gameplay (off-screen)
All comments
Posted by droezelkeTV could be adding a lot of input lag, especially if they're using 4K sets (they're pretty bad for it). i think it's mainly that the player sucks though. the footage of forza horizon 3 had similar issues where the player was using walls to turn corners. lol
There seem to be a delay between the steering wheel input and what's happening on screen. It looks weird. The car seems to handle like a tank. The guy is trying his best to avoid the walls, but isn't able to because of the bad input.
There seem to be a delay between the steering wheel input and what's happening on screen. It looks weird. The car seems to handle like a tank. The guy is trying his best to avoid the walls, but isn't able to because of the bad input.
Posted by CreamProbably the usual damage you see in games like this, minor scratches and small dents. The day we get a games like GT and forza with damage like burnout paradise will be a good day.
Is there no damage in this game?
Is there no damage in this game?
About the game
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- Developed by Polyphony Digital
- French release: 2017
- US release: 2017
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Electrostatic Air Filter
Everything is beautiful, in it's own way... This board is a display of images I find beautiful! These photos do not belong to me, unless otherwise stated. I'm just enjoying their beauty, I hope you do too! Please visit my new Autumn Blog:
So, now that you have decided to heed the warning and head out to buy a new air filter, just what kinds of air filters are there for you to purchase?
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