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August 7, 2012
AF HOLDINGS LLC,PLAINTIFF,v.JOHN DOE,DEFENDANT.
[ECF No. 5]
Currently before the Court is Plaintiff's renewed ex parte application for leave to take expedited discovery. ECF No. 5. ("Motion"). Plaintiff's first application was denied because Plaintiff failed to provide any evidence that Defendant was located in this district and subject to
Court's jurisdiction. ECF No. 4. Plaintiff has now renewed its application and, addressed the concerns raised by the Court in the order on Plaintiff's first application. Having reviewed Plaintiff's motion, and having found good cause, the Court GRANTS the motion for the reasons set forth below.
On June 20, 2012, Plaintiff AF Holdings LLC filed a complaint against John Doe for copyright infringement, contributory copyright infringement, and negligence. ECF No. 1 at 7-9. Plaintiff purports to be the registered owner of the copyrighted motion picture entitled "Popular Demand." Id. at 2. In its complaint, Plaintiff alleges that John Doe used a popular peer-to-peer sharing protocol called BitTorrent to reproduce and distribute Plaintiff's copyrighted material. at 3-5. According to Plaintiff, BitTorrent enables multiple computers to connect to each other the purpose of sharing a file. Id. Rather than downloading an entire file from a single host computer, however, Plaintiff states that BitTorrent users download or "seed" pieces of a file from multiple computers simultaneously. Id. Once a user downloads a piece of a file, it begins uploading that piece to other users. Id. This is commonly known as a "swarm." Id. Finally, a swarm member downloads all of a file's pieces, BitTorrent reassembles them and the user is able to view the file's contents. Id.
On June 28, 2012, Plaintiff filed its first application for expedited discovery. ECF No. 3. Specifically, Plaintiff sought the Court's permission to serve a third-party subpoena on John Doe's Internet Service Provider ("ISP"), Cox Communications, to obtain John Doe's true identity. Id.
2. On July 12, 2012, the Court denied Plaintiff's first application for failing to provide any evidence showing it "used geolocation technology to trace the Internet Protocol ["IP"] address the Defendant to a point of origin within the state of California." ECF No. 4 at 4. On July 25, 2012, Plaintiff renewed its ex parte application for leave to take expedited discovery. ECF No.
Plaintiff again seeks leave to serve discovery on John Doe's ISP, Cox Communications. Id. Plaintiff incorporates the same arguments made in its first application, but it attaches a declaration stating that John Doe is located within this District, and therefore subject to this Court's jurisdiction. Id., Decl. Brett L. Gibbs.
The Cable Privacy Act
The Cable Privacy Act generally prohibits cable operators from disclosing personally identifiable information regarding subscribers without the prior written or electronic consent of subscriber. 47 U.S.C. § 551(c)(1). However, a cable operator may disclose such information the disclosure is made pursuant to a court order and the cable operator provides the subscriber notice of the order. 47 U.S.C. § 551(c)(2)(B). A cable operator is defined as "any person group of persons (A) who provides cable service over a cable system and directly or through or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such cable system." 47 U.S.C. § 522(5). Accordingly, Plaintiff seeks an Order instructing Cox
Communications to produce documents and information sufficient to identify the user of the specified IP address.
Early Discovery
A party may not seek discovery from any source before the Rule 26(f) conference unless party first obtains a stipulation or court order permitting early discovery. Fed. R. Civ. P. 26(d)(1). Courts in the Ninth Circuit apply the "good cause" standard in deciding whether to permit early discovery. Semitol, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. 2002) (adopting the conventional standard of "good cause" in evaluating a request for expedited discovery). Good cause exists "where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party."
Good cause for expedited discovery has been found in cases involving claims of infringement unfair competition or in cases where the plaintiff seeks a preliminary injunction. Id. In infringement cases, expedited discovery is frequently limited to allowing plaintiffs to identify Doe defendants. See, e.g., UMG Recordings, Inc. v. Doe, 2008 WL 4104207 (N.D. Cal. 2008) (granting leave to take expedited discovery for documents that would reveal the identity and contact information for each Doe defendant).
District courts in the Ninth Circuit apply a three-factor test when considering motions for expedited discovery to identify certain defendants. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). First, the plaintiff should "identify the missing party with sufficient specificity such that the Court can determine that the defendant is a real person or entity who could be sued in federal court." Id. Second, the plaintiff must describe "all previous taken to locate the elusive defendant" to ensure that plaintiff has made a good faith effort identify the defendant. Id. Third, plaintiff should establish that its lawsuit could withstand a motion to dismiss. Id.
1. Identification of Missing Party with Sufficient Specificity
First, Plaintiff must identify the Doe defendant with sufficient specificity to enable the Court to determine that the Doe defendant is a real person subject to the Court's jurisdiction. Plaintiff has provided a declaration stating it used geolocation technology to determine that John resides in Chula Vista, California. ECF No. 5-1, Decl. Brett L. Gibbs. Also, according to Plaintiff, "[w]hen presented with an IP address and the date and time of infringing activity, an can identify the name and address of the ISP's subscriber because that information is contained in the ISP's subscriber activity logs." ECF No. 3 at 2. The Court therefore finds that Plaintiff has made a satisfactory showing that John Doe is a real person or entity behind the alleged infringing conduct who would be subject to suit in federal court.
2. Previous Attempts to Locate Defendant
Second, Plaintiff must describe all prior attempts it has made to identify the Doe defendant a good faith effort to locate and serve him or her. Plaintiff retained a private computer investigator to identify the IP addresses of BitTorrent users who were allegedly reproducing Plaintiff's copyrighted material. ECF No. 3-1, Decl. Peter Hansmeier. Although Plaintiff's computer investigator obtained John Doe's IP address, "the only party from whom Plaintiff can discover John Doe's actual name and physical address are his ISP: Cox Communications." Id.
9. The Court therefore finds that Plaintiff has made a good faith effort to identify and locate John Doe.
3. Whether Plaintiff Can Withstand a Motion to Dismiss
a. Copyright infringement "[A] plaintiff who claims copyright infringement must show: (1) ownership of a valid copyright; and (2) that the defendant violated the copyright owner's exclusive rights under the Copyright Act." Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 U.S.C. 501(a) (2003); Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1073 (9th Cir. 2000)). To prove claim of direct copyright infringement, "a plaintiff must show that he owns the copyright and the defendant himself violated one or more of the plaintiff's exclusive rights under the Copyright Act," whereas "[o]ne who, with knowledge of the infringing activity, induces, causes materially contributes to the infringing conduct of another may be liable as a 'contributory' [copyright] infringer." Id. (alteration in original) (citation omitted). The Ninth Circuit has "interpreted the knowledge requirement for contributory copyright infringement to include both those with actual knowledge and those who have reason to know of direct infringement." Id. (alteration in original) (citation omitted).
Plaintiff purports to be the exclusive rights holder of the copyrighted motion picture "Popular Demand." ECF No. 1-2, Exh. B. Plaintiff further alleges that on May 7, 2012, Defendant participated in a BitTorrent "swarm" for the purpose of illegally downloading and reproducing Plaintiff's copyrighted work. ECF No. 1 at 6-7. Plaintiff alleges that by participating in the "swarm," Defendant contributed to the infringing activities of thousands of other "peers." Id.
8. Accordingly, Plaintiff has alleged the prima facie elements of both direct and contributory copyright infringement and could withstand a motion to dismiss these claims. See Columbia Ins. 185 F.R.D. at 579-80.
b. Negligence "An action in negligence requires a showing that the defendant owed the plaintiff a legal that the defendant breached the duty, and that the breach was a proximate or legal cause injuries suffered by the plaintiff." Mintz v. Blue Cross of Cal., 92 Cal. Rptr. 3d 422, 434 (Cal. App. 2009) (citation omitted).
Plaintiff alleges that Defendant accessed, or controlled access, to the Internet connection in performing the unauthorized copying and sharing of Plaintiff's copyrighted work. ECF No. at 9. Plaintiff further alleges that Defendant failed to adequately secure its Internet connection, this failure "constitutes a breach of the ordinary care that a reasonable Internet account holder would [use] under like circumstances." Id. Plaintiff alleges that, due to this unsecured connection, others were allowed to unlawfully copy and share Plaintiff's copyrighted work, thereby interfering with Plaintiff's exclusive rights and causing Plaintiff financial harm. Id. Accordingly, Plaintiff's negligence cause of action could withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 579-80.
Having found good cause, the Court GRANTS Plaintiff's motion for expedited discovery. For the foregoing reasons, it is hereby ordered that:
1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45, on Cox Communications that seeks only the true name and address of John Doe. Plaintiff may not subpoena additional information;
2. Plaintiff may only use the disclosed information for the sole purpose of protecting its rights in pursuing this litigation;
3. Within fourteen (14) calendar days after service of the subpoena, Cox Communications shall notify the subscriber that its identity has been subpoenaed by Plaintiff. The subscriber whose identity has been subpoenaed shall have thirty
(30) calendar days from the date of such notice to challenge the disclosure by filing an appropriate pleading with this Court contesting the subpoena;
4. If Cox Communications wishes to move to quash the subpoena, it shall do so before the return date of the subpoena. The return date of the subpoena must allow for at least forty-five (45) days from service to production. If a motion to quash or other customer challenge is brought, Cox Communications shall preserve the information sought by Plaintiff in the subpoena pending resolution of such motion or challenge; and
5. Plaintiff shall serve a copy of this Order with any subpoena obtained and served pursuant to this Order to Cox Communications. Cox Communications, in turn, must provide a copy of this Order along with the required notice to the subscriber whose identity is sought pursuant to this Order.
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text: Personal recollections of life in the police force. "The public says 'Gee, that's terrible, that's horrible. How could people do such a wicked thing?' But if it doesn't come within the ambit of their own experience, they don't comprehend the horror of a lot of this stuff. Even as police, you should never, not never, lose your ability to be appalled. Any police officer who goes through a stage where they are totally unshockable should get out." - Retired senior sergeant Colleen Woolley"We drank to get rid of it in our day, stress. Now officers prefer the gym. That's perfectly fine, and good on them, but they don't have the communion we once had. You have to be in with people and you have to know them. Every read more


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Town Square
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AROUND TOWNAlamo downtown high-density housing: Define it.
Dear Dolores, Neighbors have been exchanging opinions and specifications for high-density housing in Alamo's business...Original post made by Hal Bailey on Oct. 14, 2009
Last comment by Alamo Ron, on Oct 21, 2009 at 7:55 am | 4 comments | 1205 Views
COMMENTS ON STORIESTeen drivers learn that 'It happens'
Many teens have a horror story about driving: The drunken kid at the party who insisted on driving; the one on his cell phone...Original post made on Oct. 19, 2009
Last comment by Lisa, on Oct 20, 2009 at 4:34 pm | 3 comments | 1460 Views
AROUND TOWNStop being hypocrites!
This was originally posted to the "medical marijuana" story. I figured I'd post it here, as well: As a Danville business...Original post made by KNator on Oct. 13, 2009
Last comment by Lola, on Oct 20, 2009 at 12:17 pm | 38 comments | 3647 Views
CRIMES & INCIDENTSRoutine traffic stop ends in arrest
A vehicle stop for improper front lighting resulted in an arrest when the driver turned out to have three outstanding warrants. Read...Original post made on Oct. 16, 2009
Last comment by Diablo Boob, on Oct 20, 2009 at 9:25 am | 12 comments | 2633 Views
AROUND TOWNLose the HORSE!!
Dear Dolores, Neighbors gathered in discussion groups this weekend to discuss Alamo, as a ZIP CODE and a business district,...Original post made by Hal Bailey on Oct. 12, 2009
Last comment by Elmer, on Oct 19, 2009 at 10:47 pm | 46 comments | 3150 Views
SCHOOLS & KIDSMake a discovery
Looking for a kimono? A mink coat? House wares to outfit a kitchen? Check out the Thrift Station, which benefits Discovery...Original post made on Oct. 19, 2009
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AROUND TOWNThursday night jam sessions
Live Music Jam every Thursday, 6:30-9:30 p.m., beginning tonight, Oct. 15, through Dec. 17 at the Link2 Fine Art Gallery...Original post made on Oct. 15, 2009
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AROUND TOWNVoters reject Alamo cityhood
The movement to incorporate Alamo was defeated today by 66 percent of the residents who voted against Measure A and cityhood....Original post made on Mar. 4, 2009
Last comment by Member, on Oct 18, 2009 at 8:15 pm | 106 comments | 4013 Views
AROUND TOWNWalgreens opens at Green Valley Center
Walgreens has been open for one week today at Green Valley Center on Diablo Road near I-680. The space has been vacant since...Original post made on Oct. 17, 2009
Last comment by Mary Lou Baratta, on Oct 17, 2009 at 5:01 pm | 1 comment | 1401 Views
CRIMES & INCIDENTSThis week's police log
The Danville Police Department provides Danville Express with a record of its calls each week. This is a sampling, omitting...Original post made on Oct. 6, 2009
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COMMENTS ON STORIESSeven picked for Alamo MAC
Supervisor Mary N. Piepho announced today that she has nominated seven individuals to become founding members of the newly...Original post made on Oct. 14, 2009
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Kids! Pull out your video equipment. It's time to begin filming for the annual Street Smarts "Be Reel!" Video Contest for...Original post made on Oct. 15, 2009
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SCHOOLS & KIDSObama speech spurs concerns among parents
Plans by President Barack Obama to address students across the nation Tuesday met with protest from parents across the country...Original post made on Sep. 8, 2009
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COMMENTS ON STORIESPrincipal on leave after gun accusation
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AROUND TOWNRobert Storer named to Danville council
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MXWorld (previously known as MXRevshare) is a PTC and revshare site from admin James Lee Valentine. He owns a whole network of various sites. He is also teaching people how to earn on the Internet. He has written many books, he is doing webinars, he made many videos about earning money online and he is doing a lot of other … Read more >>
How to verify Payza account according to the new rules
Payza is one of the most popular and most used online wallets (online payment processors) besides PayPal and SolidTrustPay. Many of you tried to figure out how to verify Payza account. It is not that easy. Payza changed the rules of verifying accounts. So how to verify Payza account according to the new rules? People that have a new Payza … Read more >>
One of the oldest and most trusted PTC sites ever, paying for more than 8 years – Neobux – has more than 200 available ads to click now! There ads are here daily for many weeks already and most probably they will be there for some more time. Use your chance to earn good money while these ads are still … Read more >>
PPCAdSource is more than 2 years old, legit paying PTC site from the famous admin of traffic exchanges (e.g. TrafficSwirl), e-mail-marketing sites, analytics sites and training a more sites – John Bell (aka Insidmal, Conquest Marketing company, U.S.). Typically for a traffic exchange owner, you will find a traffic exchange with cash rewards included in this PTC site too. You … Read more >>
StampBux is a new paying PTC site with truly unique script from reliable and very nice admins Henrik Sorin and Ionut Sas. The system which StampBux is running on was being developed and tested for 1.5 years! and strictly according to the current needs of the PTC world. It is not like any other PTC site. There's a lot of … Read more >>
If you want to be successful in the Paid To Click world and you do not want to make only few dollars monthly, you have to know how to do it. Firstly, it is important to choose the right PTC site. I personally recommend Clixsense. Clixsense is one of the biggest and best PTC sites out there (it has more … Read more >>


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EE reveal new smartphones and tariffs
EE have announced new deals for the Samsung Galaxy S7 and S7 Edge handsets, with price plans for the LG G5 and the Sony Xperia X and XA to follow soon.
The announcement coincides with the unveiling of the high-end devices at the Mobile World Congress in Barcelona.
EE say that, when released, the handsets can immediately be used for wi-fi calling, but that 4G calling (also known as Voice over LTE or VoLTE) will be "enabled shortly after launch".
Not so fast
We'd be forgiven for wondering why EE, who have the biggest 4G network in the UK, have held back. After all, it now has "more than 95% of the UK population covered", 5% more than their original launch target of 90%.
But while calls made using 3G and 2G have been able to switch between the networks as and when necessary, calls made over 4G have simply cut out when the caller moves out of a 4G coverage area.
So while EE initially said they'd introduce 4G calling last summer, it was still nowhere to be seen when Three launched their 4G Supervoice service last autumn.
The reason EE gave was that they only wanted to make 4G calling available to customers "when it's on a par with, or better than, what customers are currently using".
Now though, Director of Network Services and Devices at EE, Tom Bennett, says that the network is "currently maintaining a dropped call rate of 0.4%" with the promise that it'll get to "just 0.1%".
For most people, it's not the promise of making calls over 4G that will be exciting them about the new handsets. As well as the usual boosts to their internal specs, the new phones can offer some genuinely innovative features.
Galaxy S7
Network offers 4G streaming gadgets
Compare mobile deals here
Samsung's latest offerings - the Galaxy S7 and S7 Edge - initially look disappointingly similar to their S6 predecessors - but there have been some important improvements.
For one thing, the handsets have a new water-resistant design that should make them safe to a depth of roughly 1.5m for 30 minutes. Previous Galaxy S models have been water resistant - but the feature was done away with for last year's S6 and S6 Edge.
The phones also do well in the battery department - Samsung say they have enough power to screen 13 hours of HD video on a single charge. Recharging to 50% takes just 10 minutes, and there's also the option of wireless charging, although this is slower.
The S7 also accepts MicroSD cards - another feature that had been dropped from the S6 models.
EE are making the S7 available on the following 24-month plans:
|Minutes and texts
|Upfront cost
|Monthly cost
|500 / unlimited
|Visit EE
|1,000 / unlimited
|Visit EE
|Visit EE
|Visit EE
|Visit EE
|Visit EE
The S7 Edge will be available with the following plans:
|Minutes and texts
|Upfront cost
|Monthly cost
|1,000 / unlimited
|Visit EE
|Visit EE
|Visit EE
|Visit EE
|Visit EE
|Visit EE
The above plans come with inclusive calls and texts when travelling in the EU - which for at least the first year of the contract will be something of a bonus.
From June next year, however, mobile roaming charges will be abolished for EU residents travelling within the 28 member states.
Existing EE customers hoping to upgrade to one of the new plans can do so - and for those opting for one of the 4GB plans, they'll actually get 10GB of data per month for the same price.
Anyone pre-ordering either of the phones online or in store before March 6th will get their new handset three days before the official launch - on March 8th instead of March 11th.
The LG G5 and friends
Faster 4G+ offered
EE's TV service
Mobile power bars
Possibly more exciting, however, is the LG G5. It boasts a "modular" design, in which the bottom fifth of the phone slides out and can be replaced by what LG call "friends".
At the moment, these include a Bang & Olufsen digital-to-analogue converter that improves the sound quality of the music played through the phone via a better speaker, alongside a microphone and second headphone jack.
There's also a chunky camera controller/grip that adds an extra (non-removable) 1,200mAh battery to keep the phone powered while taking more photos - which should be easier to do one-handed because of the design.
Other "friends" will undoubtedly be added to the range but simply being able to remove the base of the phone means that the battery can be much more easily replaced - which isn't always the case for many smart phones.
On a related note, the other standout feature of the phone is the two camera lenses on its back.
The first is a normal lens, while the second can be used to capture 135-degree wide-angled shots such as landscapes or group photos - but its resolution is just eight megapixels, compared with the 16 megapixels offered by the normal lens.
Prices for the LG G5 and its friends aren't yet available, but EE say they'll have some kind of "exclusive pre-order offer" available towards the end of next month.
In the meantime, interested parties can register their interest at the EE website.
Sony Xperia
Judging by the comments coming from the Mobile World Congress, many people haven't known quite what to make of the Sony Xperia handsets.
The XA is meant to be the budget Xperia handset, without looking like the budget option - sharp design and an edge to edge screen makes it look like it should be much higher spec.
The lower spec XA can only boast a 720p resolution screen and a 13 megapixel camera - compared with the X's 1080p screen and 23 megapixel rear camera.
A certain amount of fuss has been made by Sony over the fact that the camera can track moving objects and predict where they'll move to, adjusting the focus accordingly to better capture action shots without blur.
Existing Sony owners who've had issues with the glass back may be pleased to hear it's been ditched in favour of a metal back, and the batteries are said to last for up to two days between charges.
Prices for the handsets aren't yet available, but given the strength of the competition, they'll need to be fairly reasonable when the phones go on sale later this year.
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We aim to provide free reviews and comparisons of consumer products and to keep our editorial content as objective as possible. To keep the site free, we are paid by some providers when new customers take products after they've clicked on our links. We don't allow our editorial content to be affected by those links, however we may not include all of the products available in the market. Finally, we do not submit or process any applications for any products or services and we cannot guarantee that any product or service listed on this website will be available to you. Credit providers make the final decision on whether an application for credit will be accepted.
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You have until Feb 1, 2017 to return or exchange items purchased between Nov 1, 2016 and Jan 1, 2017.
All other standard return policy conditions apply.
Product Highlights
You Pay: $80.00
The RM-T1713 Rack Mount Kit from Denon is a rack mount kit for the DBT-1713UD Universal Disc Player from Denon.
Rack kits come with a DOA replacement rather than a warranty. If the rack kit is damaged in any way, they will replace it. It also comes with a set of additional screws to accommodate the increased width of an additional size receiver.


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Home › Forums › Gear Forums › Gear (General) › Ordering something from MLD is like…
Feb 26, 2012 at 8:34 am #1286213
…..being a kid again. Anxiously waiting for USPS or UPS or FedEx to show up at your door everyday hoping, praying for that little box with your name and the MLD address on it.Feb 26, 2012 at 8:36 am #1845011
The novelty wears off around week 5 for me. But when it does show up, Oh boy, oh boy, oh boy! Worth the wait.Feb 26, 2012 at 8:54 am #1845018
Phillip ColelliSpectator
@pdcolelli42Locale: AT, follow@ www.thruperspective.com
I know! I' currently awaiting a spirit 28 quilt and I won't be able to get it until right when I start my thru hike (I hope). The suspense is killing me! I know it will live up to my expectations but I just want to try it out so bad!Feb 26, 2012 at 8:58 am #1845023
I'm only into week 3 but for some odd reason, I just KNOW it'll be here today. And if not today, it'll be here tomorrow. I just KNOW it will be.Feb 26, 2012 at 9:21 am #1845036
ed hyattBPL Member
@edhyattLocale: The North
When it shows up in the UK three weeks before you thought it should…..life is good :-)Feb 27, 2012 at 11:40 am #1845638
Not today. But I KNOW it's coming tomorrow.Feb 27, 2012 at 12:02 pm #1845649
Phillip ColelliSpectator
@pdcolelli42Locale: AT, follow@ www.thruperspective.com
Just got an email from Ron pertaining to an order. In the signature of his emails he refers to his title as "Design Minister / Chief Happiness Officer"
Love it!Feb 29, 2012 at 8:30 pm #1847097
Still nothing. TOMORROW is the day. I can feel it.Mar 2, 2012 at 12:50 pm #1847928
Less than 24 hours! I just KNOW it. Oh I KNOW it. Hahaha.Mar 2, 2012 at 12:54 pm #1847929
Gregory PetliskiMember
I have a feeling Paul is going to destroy BPLs bandwidth ;)Mar 8, 2012 at 10:28 am #1850584
Not yet. I'm starting to get depressed.Mar 8, 2012 at 10:49 am #1850603
Luke KhuuMember
I've learned to accept it, forget about it and move on to learning other methods to save weight, and b surprised in two months.Mar 8, 2012 at 12:05 pm #1850637
chris kerstenMember
@xanaduLocale: here
The mailman has it. He wants to watch you go nuts. Kind of like when I have the tracking # for a package and it says, "out for delivery", and I don't even want to take a sh—ower for fear of missing them.Mar 8, 2012 at 1:02 pm #1850659
Franco DarioliBPL Member
@francoLocale: Tarptent
Taking a sh…ower
I timed myself and my average is 1 min and 45 sec.
So I look out of the window, if the van is not approaching I have enough time to go , take my sh…ower and be ready for the knock at the door.
It's all about discipline and technique.
FrancoMar 8, 2012 at 1:08 pm #1850662
Samuel KauSpectator
@skauLocale: Southern California
@ Chris, That made me laugh pretty hard and am a little embarrassed to say I that I do the same.Mar 11, 2012 at 6:39 pm #1852193
Ok…right now I am wondering if the wait time is worth the money saved by ordering a Grace and Serenity from MLD instead of the Echo 1. And it's also making think…should I have just pulled the trigger on the Echo 1 when I actually had the money for it…
AAAAAGGGGGGHHHHHHHHGGHGHGHGHGHGHGHGHGGAGHAHG!!!!!Mar 11, 2012 at 6:41 pm #1852195
Go buy one. Your MLD order will show the next day.Mar 11, 2012 at 6:47 pm #1852201
Ken, you have no idea how many times I have thought that same exact thing. I've also thought about emailing Ron and saying "hey, ya think you could cancel my order" only for him to say it's being shipped out tomorrow.Mar 11, 2012 at 6:52 pm #1852202
I double dog dare you.Mar 12, 2012 at 2:23 pm #1852588
Andrew TroickiMember
@troiksLocale: Sydney
The duomid I ordered last year arrived a week early….. that was a great day at workMar 12, 2012 at 3:43 pm #1852622
Another day…another day without a package from MLD.Mar 12, 2012 at 3:54 pm #1852630
Call HMG.Mar 12, 2012 at 8:37 pm #1852770
Mike HenselSpectator
@mike220Locale: Northwest
I feel your pain, seven weeks waiting on the tarp I ordered. I gotta think its getting close.Mar 13, 2012 at 8:31 pm #1853393
William BrownMember
@matthewbrownLocale: Blue Ridge Mtns
Ordering something from MLD is like…waiting for the cable guy to show up between March 16th and May 3rd.Mar 13, 2012 at 8:36 pm #1853399
Bob GrossMember
@b-g-2-2Locale: Silicon Valley
I placed an order to MLD and it was shipped the same day.
You must be logged in to reply to this topic.


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US Bank locations in Lebanon & US Bank Online Banking Resource
US Bank locations in Lebanon, TN online banking resources, US Bank locations information.
US Bank Online Banking, Lebanon, TN OperationUS Bank Details
- US Bank Headquarters: Cincinnati, Ohio
- US Bank Total Assets: $398,978,359,000
- US Bank Total Deposits: $294,158,985,000
- US Bank Net Income: $5,534,970,000
- US Bank U.S. Offices: 3239
- US Bank Foreign Offices: 1 * (Bank data provided by FDIC and believed to be current as of 12/31/2014)
You may also be interested in learning about other US Bank services or information including: US Bank locations, how to get to US Bank on line, US Bank addresses, how to get US Bank credit, US Bank loans, US Bank cards, a US Bank number, US Bank mortgages, US Bank customer service, US Bank hours, US Bank 800 number, US Bank credit cards, US Bank branches, US Bank checking, US Bank online banking.
Click on a US Bank branch to find branch details including contact information so you can learn more about the US Bank services offered at that branch of US Bank in Lebanon, Tennessee.
Click here to view the latest bank news and blogs on US Bank in Lebanon and across the nation.
Thank you for using USBanklist to search for information on US Bank. And, remember, in the Top Banks section of USBanklist, you can also find general bank information, bank financial information, and bank locations on other top banks like Wells Fargo, Citibank, JP Morgan Chase, and more.
US Bank Locations in Lebanon
6850 Eastgate Blvd Lebanon, Tennessee 37090
US Bank Location Branch
Dell Eastgate Boulevard Branch Hours of Operation: 9:00 AM - 5:00 PM (M-F)
Lebanon Credit Card Rates
|Credit Card Program
|Interest Rate
|Low Interest Credit Cards
|Balance Transfer Credit Cards
|Cash Back Credit Cards
Featured Lebanon Banks
First Tennessee Bank, National Association
1615 West Main Street
Lebanon, Tennessee 37087
Suntrust Bank
240 West Main Street
Lebanon, Tennessee 37087
Bank Of America, National Association
1416-A West Main Street
Lebanon, Tennessee 37087
Pinnacle Bank
411 South Cumberland Street
Lebanon, Tennessee 37087
F&M Bank
1670 West Main Street, Suite 160
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First Tennessee Bank, National Association
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615 South Cumberland
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Disaster Relief Services
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Phone: 1-888-392-0392
To donate to Doctors Without Borders.


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The Lydmar Hotel: "The Lydmar Hotel" Sweden Hotel Tip by Khyth
Sweden Hotels: 124 reviews and 131 photos
~$150-200/night if I remember correctly...
Unique Qualities: Great bar and pretty good food too! The rooms are well decorated and have nice DVD player/TV systems.
Address: Sturegatan 10
Price Comparison: more expensive than average
othercontact: Tel. +46 8 5661 1300
Fax +46 8 5
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Department of Psychology
Studying at Cambridge
Four Cambridge neuroscientists in Highly Cited Researchers 2016 list
Hard Brexiter or ardent Remainer? Psychologists aim to find out what drives our political ideologies
Dr Paula Banca awarded a Sir Henry Wellcome Postdoctoral Fellowship
Book to honour Professor N.J. Mackintosh, former Head of Department
Semantic Scholar program ranks Trevor Robbins fourth most influential neuroscientist of the modern era
© 2015 University of Cambridge
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June 17, 2013
| Product
This polish collection features fun and fruity colors for summer.
Nailing the Color of the Year 201623 photos
A Light Finish: The Latest in LED Gel Lamp Technology27 photos
A drug, medicinal preparation, or similar substance obtained from a plant or plants.
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Soft and sweet traditional date slice
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Slathered with thick and sweet caramel icing, this cinnamon and ginger spiced sticky date slice by Woman's Day is a rich and delicious afternoon treat to be savoured slowly.
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Check in from 14h / Check out prior to 11h
The Meads Hotel Eastbourne: Find photos, reviews, information, amenities and compare prices for 2 stars hotels in Eastbourne, United Kingdom.
The Meads Hotel Eastbourne offers a comfortable setting while in Eastbourne. It is ideally located for guests wanting to visit the area's popular attractions.
Hotel description
A satisfying breakfast is available every morning at the hotel, and there are numerous restaurants and cafés close by.
Shoreham Airport is a 55-minute drive from The Meads Hotel Eastbourne. Bexhill-on-Sea and Seaford are situated a short drive from the property.
Hotel features
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Users who viewed The Meads Hotel Eastbourne also viewed these 2 stars Eastbourne hotels:
Fairlands Hotel
15-17 Lascelles Terrace, Eastbourne
15-17 Lascelles Terrace, Eastbourne
The Boat House Eastbourne
93 Royal Parade, Eastbourne
93 Royal Parade, Eastbourne
The Palm Court Hotel Eastbourne
15 Burlington Place, Eastbourne
15 Burlington Place, Eastbourne
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Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
October 19, 2011
RAILROAD MAINTENANCE AND INDUSTRIAL HEALTH AND WELFARE FUND, PLAINTIFF,v.MATTHEW E. HACKER, INDIVIDUALLY, VINCENT HERMAN, INDIVIDUALLY, AND TRACK SERVICES, INC. DEFENDANTS.
Thursday, 20 October, 2011 09:16:36 AM Clerk, U.S. District Court, ILCD
This matter is before the Court on the Motion to Dismiss Second Amended Complaint (d/e 19) (Motion) of Defendants Matthew E. Hacker, Vincent Herman, and Track Services, Inc. Because the allegations in Plaintiff's Second Amended Complaint are sufficient to avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), Defendants' Motion is DENIED.
A. The Second Amended Complaint
On March 24, 2011, Plaintiff filed its three-count Second Amended Complaint (d/e 18) which alleges as follows. Plaintiff Railroad Maintenance and Industrial Health and Welfare Fund (the Fund) is an employee benefit plan created and administered pursuant to a Restated Agreement and Declaration of Trust. The Fund is administered in accordance with the Labor Management Relations Act of 1947 and the Employee Retirement Income Security Act of 1974 (ERISA). The Fund entered into an agreement with H&H Trackworks, Inc. to receive employer contributions on behalf of the corporation's employees.
H&H Trackworks, Inc. is a railroad and industrial equipment contractor located in Bartonville, Illinois, that employed members of Operating Engineers Local 150 who participated in the Fund pursuant to a Participation Agreement and Letter of Assent. Defendant Hacker is a five percent owner and the President of H&H Trackworks, Inc. Defendant Herman owns the remaining ninety-five percent interest in H&H Trackworks, Inc. and serves as its Secretary. Defendant Track Services, Inc. is a Tennessee corporation owned by Tracy J. Hacker and Barb Herman, the spouses of Defendants Matthew Hacker and Vincent Herman.
Count I of the Second Amended Complaint alleges that Hacker and Herman each breached the duties incumbent upon an ERISA plan fiduciary pursuant to 29 U.S.C. §§ 1104 and 1145. Count II alleges that Hacker and Herman each breached the terms of a Trust Agreement between Plaintiff and H&H Trackworks. Finally, Count III alleges that Track Services, Inc. is the alter ego of H&H Trackworks and is therefore liable for the amounts owed the Fund.
B. Allegations Relating to H&H Trackworks' Bankruptcy Plaintiff brought this suit to recover unpaid employer contributions, liquidated damages, interest, and audit costs it alleges are owed to the Fund. Initially, Plaintiff sought to recover directly from H&H Trackworks, Inc. Plaintiff hired Romolo and Associates, an accounting firm, to do anaudit of H&H Trackworks' payroll records.
Romolo and Associates determined that H&H Trackworks owed a total of $41,281.16 in contributions, interest, liquidated damages, and audit costs for a period from January 1, 2006 through December 31, 2008. Further, except in June 2010, Defendants submitted contribution reporting forms to the Fund without contribution payments from January 1, 2009 through October 2010. Including the cost of the audit, Plaintiff alleges Defendants owe a total of $276,084.22. However, Plaintiff's suit against H&H Trackworks was dismissed due to H&H Trackworks' bankruptcy.
On October 28, 2010, H&H Trackworks filed a Chapter 11 bankruptcy. On November 22, 2010, at the first meeting of creditors in the bankruptcy proceeding, Defendant Hacker stated under oath that he was responsible for deciding which H&H Trackworks' creditors to pay, and that he decided not to pay Plaintiff the contributions H&H Trackworks owed. In addition, Hacker noted that Defendant Herman contributed significant capital to the business operations of the corporation. Further, Hacker stated that, prior to H&H Trackworks' bankruptcy filing, H&H Trackworks had "migrated customers" to a new, nonunion company, Track Services, Inc. Hacker also concurred with the statement that Track Services, Inc. was a "spin off" corporation of H&H Trackworks. Track Services is in the same business as H&H Trackworks and uses H&H Trackworks' equipment in its operations. Ten employees laid off by H&H Trackworks were rehired by Track Services. As noted earlier, Track Services, Inc. is owned by Tracy J. Hacker and Barb Herman, the spouses of Defendants Hacker and Herman.
Prior to its bankruptcy, H&H Trackworks had assets of $1,845,616. The company had gross receipts of $2,819,787 in 2009 and $1,500,000 in 2010. Following its bankruptcy filing, H&H Trackworks has paid Track Services $48,500.
C. Agreements between the Fund and H&H Trackworks
There are multiple agreements bearing on the present case. As noted, H&H employees participated in the Fund pursuant to a Participation Agreement and Letter of Assent. Plaintiff asserts that Defendants, through H&H Trackworks, are bound by the Letter of Assent as well. The Letter of Assent incorporates the terms and conditions of the Rail Transportation and Operation Agreement (RTOA). Section 1(A)(1) of the RTOA provides in pertinent part that, "The Employer agrees to make payment to . . . the Railroad Maintenance and Industrial Health and Welfare Fund . . ." Further, § 7F of the RTOA states, "[p]ayment . . . shall be made by the Employer no later than the fifteenth (15th) day of the month following the month for which the payments are required." Finally, Article VI(B)(1) of the RTOA reads, "All contributions due and owing to any of the fringe benefit fund[s] mentioned in this Article are deemed and are considered to be trust funds"; the fringe benefit fund referenced is the Railroad Maintenance and Industrial Health and Welfare Fund.
Second, H&H Trackworks also agreed to be bound by the terms of the Trust Agreement of the Railroad Maintenance and Industrial Health and Welfare Fund. The Trust Agreement stipulates that for: any willful violation of any of the requirements of this Trust Agreement . . . those officers and directors . . . who supervised the completion of the report form, signed report form, or can be determined to have had personal knowledge of such conduct, shall be personally liable for any underpayment or other pecuniary loss to the fund as a result of such conduct. The Trust Agreement goes on to mandate payment of employer contributions, payment of liquidated damages when appropriate, and payment of contributions, liquidated damages, and interest owed following an audit.
It is essential to note that the documents provided by Plaintiff obliged H&H Trackworks, Inc. to make monthly employer contributions to the Fund. These contributions were calculated by multiplying a set contribution amount for each type of employee by the total number of employees of that type.
D. Defendants' Motion to Dismiss
On April 8, 2011, Defendants filed their Motion and an accompanying Memorandum in Support of its Motion to Dismiss the Second Amended Complaint. Defendants contend that all three counts of the Second Amended Complaint fail to state a claim. Defendants argue that Count I fails to state an actionable claim because all of its factual allegations pertain to actions taken by Hacker or Herman in their capacities as corporate officers. In addition, Defendants contend that, under ERISA, personal liability for a breach of fiduciary duties should not be permitted absent knowledge of one's status as a fiduciary. Similarly, Defendants argue Count II should be dismissed because: (1) Hacker signed the agreements between the Fund and H&H Trackworks in only his corporate capacity; (2) Herman did not sign any of the agreements; and (3) the language of the Trust Agreement which purportedly creates personal officer and director liability is not implicated by the pleaded facts. Finally, Defendants argue that the Second Amended Complaint fails to adequately plead facts creating the likelihood that Track Services, Inc. acted as the alter-ego of H&H Trackworks, Inc.
A Rule 12(b)(6) motion to dismiss asserts that a complaint fails to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6); Patten v. Northern Trust Co., 703 F. Supp. 2d 799, 803 (N.D. Ill. 2010). To properly state a claim, a plaintiff must plead a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A complaint will survive a Rule 12(b)(6) challenge if it provides the defendant with fair notice of the claim's basis and establishes that, taken at face value, the requested relief is plausibly available. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); see also Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim is facially plausible when the plaintiff pleads facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. See Bissessur v. Indiana University Bd. Of Trustees, 581 F.3d 599, 602 (7th Cir. 2009), citing Ashcroft, 129 S. Ct. at 1949. In evaluating such a motion, the court accepts as true all well-pleaded facts in the complaint and draws in favor of the plaintiff all reasonable inferences those facts entail. In re marchFIRST, Inc., 589 F.3d 901, 904 (7th Cir. 2009), citing Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Finally, allegations made "on information and belief" remain permissible when matters alleged are particularly within the defendants' knowledge. See Fed.R.Civ.P. 8(a); see also Trustees of the Auto. Mechanics' Industry Welfare and Pension Funds Local 701 v. Elmhurt Lincoln Mercury, 677 F. Supp. 2d 1053, 1054 (N.D. Ill. 2010).
A. Count I: Breach of Fiduciary Duty ERISA imposes a duty on fiduciaries to act "solely in the interest of the participants and beneficiaries" "with the care, skill, prudence, and diligence . . . that a prudent man acting in like capacity . . . would use."
29 U.S.C. § 1104(a)(1) and §1104(a)(1)(B). A claim under ERISA asserting a breach of fiduciary duty requires a showing that: (1) defendant is a fiduciary; (2) defendant acted toward the plan in some way covered by the statute; (3) a fiduciary duty imposed upon the defendant was breached by that act; and (4) the breach caused damage or loss to the plan. See Jenkins v. Yager, 444 F.3d 916, 924 (7th Cir. 2006). Officers and employees who are ERISA fiduciaries (and thus "wear" both a corporate and a fiduciary "hat") are required to wear only the fiduciary "hat" when making fiduciary decisions. Pegram v. Herdrich, 530 U.S. 211, 225, 120 S.Ct. 2143, 147 L. Ed. 2d 164 (2000).
The status of unpaid contributions is the crux of the present action. Taken in the light most favorable to the Plaintiff, the pleadings raise the inference that, if the Defendants owed the Fund a fiduciary duty, the Fund has a plausible claim for relief.
Courts considering ERISA claims consistently have given the term "fiduciary" a liberal interpretation. See Central Ill. Carpenters Health & Welfare Trust Fund v. S & S Fashion Floors, Inc., 516 F. Supp. 2d 931, 934 (C.D. Ill. 2007), citing Baker v. Kingsley, 387 F.3d 649, 663-664 (7th Cir. 2004), Mutual Life Ins. Co. of N.Y. v. Yampol, 840 F.2d 421, 425 (7th Cir. 1988). An individual is a fiduciary with respect to an ERISA plan "to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises authority or control respecting management or disposition of its assets."
29 U.S.C. § 1002(21)(A). It follows that an employer of ERISA-participating employees does not acquire fiduciary status by means of such employment alone. See In re Luna, 406 F.3d 1192, 1205 (10th Cir. 2005) (citations omitted). The phrase "to the extent" entails a fact-intensive analysis in which "a court must ask whether [a] person is a fiduciary with respect to the particular activity at issue." Baker v. Kingsley, 387 F.3d 649, 660 (7th Cir. 2004), quoting Plumb v. Fluid Pump Serv. Inc., 124 F.3d 849, 854 (7th Cir. 1997). Indeed, an individual need not be expressly designated as a plan fiduciary; fiduciary status should be analyzed "in functional terms of control and authority over the plan." Ruiz v. Continental Cas. Co., 400 F.3d 986, 990 (7th Cir. 2005), citing Mertens v. Hewitt Assocs., 508 U.S. 262, 113 S. Ct. 2063, 124 L. Ed. 2d 161 (1993).
The Seventh Circuit has not held precisely when unpaid ERISA contributions qualify as plan assets. However, the court in Central Ill. Carpenters conducted a thorough survey of courts' holdings in similar circumstances. The Central Ill. Carpenters court held that absent contractual language that states otherwise, employee contributions withheld from paychecks are plan assets while still in an employer's control, but that employer contributions are merely contractual duties of the employer toward the fund and confer on officers or directors no fiduciary duties. See Central Ill. Carpenters, 516 F. Supp. 2d at 936-37; Luna, 406 F.3d at 1205-06. However, the Central Ill. Carpenters court noted that other courts have held that specific language in plan documents or governing trust documents can override the general principle that employer contributions cannot create fiduciary duties. Central Ill. Carpenters, 516 F. Supp. 2d at 936-937, citing ITPE Pension Fund v. Hall, 334 F.3d 1011, 1014 (11th Cir. 2003) (additional citations omitted). Significantly, the court in Luna noted that the language of the collective bargaining and trust agreements at issue were "at best ambiguous regarding the point when unpaid contributions become plan assets" when it held that employer contributions created no fiduciary duties. Luna, 406 F.3d at 1200-201; see also Central Ill. Carpenters, 516 F. Supp. 2d at 937 (noting that governing documents "provide [no] guidance in determining whether unpaid contributions constitute assets of the Funds").
Here, Plainiff alleges Article VI(B)(1) of the RTOA specifically states that all contributions owed to the Fund are deemed to be trust funds. The Second Amended Complaint also alleges specific statements made by Defendant Hacker indicating his exercise of authority to not pay contributions to the Fund. Although the allegation regarding Defendant Herman's involvement in the decision making process is based only on information and belief, the role of a corporate director and officer in the internal decisions of the company is peculiarly within the Defendants' knowledge. These allegations are sufficient to state a claim for breach of fiduciary duty. The Court has noted above that other courts have varied, depending on the circumstances, on the issue of whether an employer who fails to make contributions to an ERISA plan is acting in a fiduciary capacity when it does so or fails to do so. The Court need not make such a determination on a motion to dismiss. Therefore, Defendant's Motion to Dismiss as to Count I of the Second Amended Complaint will be denied.
B. Count II: Breach of the Trust Agreement
In Count II, Plaintiff contends the terms of the Trust Agreement make Defendant's Hacker and Herman personally liable for the amounts claimed. When "the plaintiff submits along with its complaint copies of contracts and other documents referenced therein, the court may consider them." Metro Federal Credit Union v. Federal Insurance Co., 607 F. Supp. 2d 870, 873-74 (N.D. Ill. 2009). "[I]f the unambiguous terms of an attached contract conflict with the plaintiff's allegations, the contract controls." The Agreement states the following:
Where an audit discloses a substantial difference between hours actually worked and an employee's hours reported to the Trust by his Employer, or where the matter has been referred to Fund Counsel for collections or to obtain an audit, regardless of whether the audit discloses a delinquency, the Employer must pay the cost of the audit. Furthermore, where such audit discloses any willful violation of any of the requirements of the Trust Agreement or rules and regulations adopted in connection herewith, those officers and directors of such Employer, if a corporation, who supervised the completion of the report forms, signed report forms, or can be determined to have had personal knowledge of such conduct, shall be personally liable for any underpayment or other pecuniary loss to the Fund as a result of such conduct. Nothing herein shall prevent a personal liability for owners or partners who are not otherwise incorporated. . . .
In the event an Employer party to this Trust Agreement or otherwise bound thereby becomes delinquent in his contributions and the Trustees place the account in the hands of legal counsel for collection, said delinquent Employer shall be liable for reasonable attorney's fees and for all reasonable costs incurred in the collection process, including court fees, audit fees, etc.
Defendants argue that the separation into a second paragraph of conditions pertaining to delinquent employers implies that only its provisions could be pertinent to the present case. Reading the first paragraph to refer only to employers who return willfully inaccurate report forms, Defendants assert that the Trust Agreement makes H&H Trackworks liable and preclude's Defendants Hacker's and Vincent's personal liability. In relevant part, the language of the Trust Agreement that creates personal liability states: "where such audit discloses any willful violation of any of the requirements of the Trust Agreement or rules and regulations adopted in connection herewith, those officers and directors of such Employer, if a corporation, who supervised the completion of the report forms, signed report forms, or can be determined to have had personal knowledge of such conduct, shall be personally liable for any underpayment or other pecuniary loss to the Fund as a result of such conduct."
Count II of the Second Amended Complaint alleges, in part, that an audit showed Defendants owed $41,281.16 in contributions, interest, liquidated damages, and audit costs for the period from January 1, 2006 through December 31, 2008. Plaintiff alleges Defendants willfully violated the terms of the Trust and RTOA Agreements by failing to make prompt contributions to the Trust Fund and willfully diverted plan assets and used those assets for other purposes. Further, Plaintiff alleges Defendants Hacker and Herman both had personal knowledge of the willful conduct and that Defendant Hacker supervised the completion of the report forms and the report forms contained his signature stamp. Therefore, Plaintiff has sufficiently alleged a breach of the Trust Agreement against Defendants Hacker and Herman to survive dismissal under 12(b)(6).
C. Count III-Alter Ego Liability
Plaintiff alleges in Count III of the Second Amended Complaint that Track Services, Inc. is the "alter ego" of H&H Trackworks, Inc. In general, the alter ego doctrine analysis incorporates the single employer doctrine, which determines when two employers will be treated as a single entity. See Boudreau v. Gentile, 646 F. Supp. 2d 1016, 1021 (N.D. Ill. 2009) (citations omitted). However, alter ego liability places added emphasis on "the existence of a disguised continuance of a former business entity or an attempt to avoid the obligations of a collective bargaining agreement . . . . " Trustees of Pension, Welfare and Vacation Fringe Ben. Funds of IBEW Local 701 v. Favia Elec. Co., Inc., 995 F.2d 785, 788-789 (7th Cir. 1993), quoting Int'l Union of Operating Engineers v. Centor Contrators, 831 F.2d 1309, 1312 (7th Cir. 1987).
The following criteria are examined in determining whether two companies are a single entity: (1) interrelation of operations, (2) common management, (3) common ownership, and (4) centralized control of labor relations. Boudreau, 646 F. Supp. 2d at 1021, quoting Moriarty v. Svec, 164 F.3d 323, 332 (7th Cir. 1998). No single factor is conclusive; the court must weigh the totality of the circumstances.
Esmark, Inc. v. N.L.R.B., 887 F.2d 739, 753 (7th Cir. 1989). Indeed, "[m]eeting all of the elements of the single employer doctrine is not essential to a finding that the alter ego doctrine applies." Favia Elec. Co., 995 F.2d at 789 (citations omitted). Courts have found alter ego relationships even when there is no evidence of common ownership. See Central States Pension Fund v. Sloan, 902 F.2d 593, 597 (7th Cir. 1986). Thus, "unlawful motive or intent are critical inquiries in an alter ego analysis . . . ." Favia Elec. Co., 995 F.2d at 789, quoting Centor Contractors, 831 F.2d at 1312. Finally, "[n]either the courts nor the National Labor Relations Board have limited the alter ego analysis to those fact patterns where the original employer has disappeared entirely . . . . " Central States, 902 F.2d at 597 (7th Cir. 1990), quoting Crest Tankers, Inc. v. National Maritime Union, 796 F.2d 234, 238 (8th Cir. 1986).
Plaintiff has not alleged that H&H Trackworks and Track Services shared common management. However, Plaintiff has affirmatively stated that Track Services, Inc. is owned by the spouses of Defendants Hacker and Herman, not the Defendants themselves. Moreover, Plaintiff's alleges that Track Services, Inc. is in the same field as H&H Trackworks, employs a significant number of former H&H Trackworks employees following layoffs, and uses leased equipment from H&H Trackworks raises a plausible claim for relief based on alter ego liability. The pleadings, taken in the most favorable light, demonstrate that Track Services uses H&H equipment for the same purposes for which it was used by H&H. The fact that the lease agreement for such equipment between Track Services and H&H is based on market rates is offset by the significant amount of money H&H has paid Track Services since the former corporation's bankruptcy. Further, the assets and gross receipts of H&H leading up to its bankruptcy, coupled with the layoffs and subsequent hiring by Track Services of ten H&H employees, allow a plausible inference of an attempt to avoid ERISA obligations. Finally, Defendant's suggestion that the lack of common ownership or the continued existence of H&H renders Plaintiff's claims generally implausible runs counter to Seventh Circuit precedent. See Central State's, 902 F.2d at 597. Therefore, Defendants' Motion to Dismiss Count III will be denied.
THEREFORE, Defendant's Motion (d/e 19)is DENIED. This matter is referred back to Judge Cudmore for further pre-trial proceedings.
FOR THE COURT: SUE E. MYERSCOUGH United States District Judge
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Deal DetailsPromoted 07-25-2016 by Discombobulated at 07:50 AM View Original Post
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Distances are calculated in a straight line and may not reflect actual travel distance.
It is important to note that this mortgage calculator is for guidance purposes only. Mortgage lenders have their own affordability criteria therefore it is important you speak to one of our Mortgage Advisers for further information and a more accurate indication of what products may be available to you and what your monthly mortgage payments are likely to be.
Impressive five bedroom 'Lion' house. Spanning over 2,200 square feet and four floors this property has been lovingly cared for and extended, making an ideal family home.
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This Element is an excerpt from Living Rich by Spending Smart: How to Get More of What You Really Want (ISBN: 9780132350099) by Gregory Karp. Available in print and digital formats. Save hundreds of dollars a year on your home and cellphone services! Getting your spending right on your home phone service isnat difficult, but you must regularly match what you use compared with whatas offered in the fast-changing telecommunications marketplace. The good news is you can almost certainly cut your telecom spending if you know a few basic strategies....Another advantage is that prepaid minutes already include the fees, surcharges, and taxes that show up as separate line items on your wireless bill and add 20% to 30% to the bottom line. Check out the company Tracfone and such usualanbsp;...
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Even after Jump start my car isnt starting.....Why?
I tried to remove my battery but positive terminal was corroded So i had to
break the clamps and remove the battery.I bought a new one and have to
install it ... Store people were saying the problem most probably would be the
corroding ...
5 Answers
Did you replace the battery cable (s)? If the corrosion was that bad the cable likely needs replacing too.
Oh geez, I say more than likely but definitely absolutely need new cables, both of them, and make sure where the ground goes, either engine block or chassis, is clean and tight. Not just new clamp-on terminals but all new cables
So FordNut are you saying that i should purchase even the positive and the negative cables ?
Yes. If I were in your position that is what I would do. Then you are sure. Then use any of several products that prevent corrosion, those disc things that go around post under terminal..I don't know if those work or not, but there are plenty of products that do work
Add on ends are guaranteed to frustrate and cause problems. I would avoid them unless you have no other choice.
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