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May 22, 2009
JOHN H. LIBRAIRE, PLAINTIFF,v.MYRON KAPLAN, JANET KRUDOP, NORTH FORK PRESERVE, INC. AND NORTH FORK PRESERVE, CO., DEFENDANTS.
Presently before the Court are plaintiff's objections to the Report and Recommendation of Magistrate Judge Boyle, dated September 26, 2008 ("R&R"), which recommended that defendants be awarded $79,837.87 pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. § 78u-4 et seq. For the reasons set forth below the objections are denied and the Court adopts the R&R in its entirety.
I. The Complaint
Plaintiff, John H. Libraire ("plaintiff"), commenced this action on March 31, 2006, asserting causes of action for securities fraud, pursuant to Section 10(b) of the Exchange Act of 1934, 15 U.S.C. § 78j (the "Exchange Act") and Rule 10b-5 of the Securities and Exchange Commission ("SEC"), promulgated thereunder, 17 C.F.R. §240.10b-5, as well as common law fraud and breach of fiduciary duties.
The relevant facts are set forth at length in Judge Boyle's Report and Recommendation dated January 17, 2008 (the "January Report"), familiarity with which is presumed. Briefly stated, they are as follows. In or about 1981, Myron Kaplan and Robert Krudop formed a partnership, NFP Co., and purchased 333 acres of vacant land in Riverhead to develop and use as a private hunting preserve. They then formed NFP, Inc., a New York corporation. NFP Co. conveyed 200 acres to NFP, Inc. in exchange for 75 shares in NFP Inc., as well as other consideration. NFP Co. retained the remaining 133 acres, which it leased to NFP Inc. for an amount equal to its carrying costs.
In order to fund development of the hunting preserve, NFP Inc. issued a private offering, selling 75 common shares of stock in NFP Inc. at a cost of $10,000 per share. In January 1988, plaintiff purchased a single share of common stock in NFP, Inc. for $12,5000. In November 2003, the minority shareholders of NFP, Inc., including plaintiff, commenced an action in New York Supreme Court against Kaplan, Janet Krudop, the estate of Robert Krudop, NFP, Co., and NFP, Inc. alleging waste, fraud, corporate mismanagement and breach of fiduciary duty. While that state court action was pending, plaintiff commenced the instant action alleging that defendants committed securities fraud, basing the claim on plaintiff's payment of annual dues in 2005 which he asserts was in actuality the purchase of a second, preferred security in NFP, Inc.
Defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 and for sanctions, arguing that the only stock issued by NFP, Inc. is its common stock and it has not issued any preferred shares. On December 4, 2007, the Court referred defendants' motion to Judge Boyle for report and recommendation.
II. The January Report
On January 17, 2008 Judge Boyle issued the January Report recommending the defendants' motion for summary judgment be granted and the complaint be dismissed in its entirety. Judge Boyle found that it was undisputed that the only share of NFP, Inc. common stock purchased by plaintiff was in January 1988, well beyond the one year/three year statute of limitations for a claim under Section 10(b) and Rule 10b-5. He rejected plaintiff's attempt to circumvent the statute of limitations by asserting that his payment of annual dues in 2005 was the purchase of a second, preferred security in NFP, Inc. The January Report also recommends that defendants' motion for sanctions under the PSLRA be granted against both plaintiff and his counsel in an amount equal to the reasonable attorney's fees and costs incurred by defendants in defending this action. Plaintiff filed timely objections to the January Report.
By Order March 24, 2008, the Court denied the objections and adopted the January Report in its entirety, finding that (1) plaintiff failed to raise a genuine issue of material fact with regard to whether the 2005 "transaction" constitutes the purchase of a security within the meaning of the Exchange Act; (2) plaintiff did not demonstrate that discovery would create a genuine issue of material fact as to whether plaintiff purchased a security in 2005; and (3) it was appropriate for this Court to decline to exercise supplemental jurisdiction as plaintiff's federal claim is being dismissed prior to trial and the resolution of the state law claims would entail determining additional issues of fact. Further, the Court found that plaintiff's frivolous complaint warranted sanctions under the PSLRA against both plaintiff and his counsel ("counsel" or "Stein") equal to the amount of reasonable attorney's fees and costs incurred by defendants in connection with this litigation. Finally, the Court referred the issue of the amount of sanctions, i.e. the amount of reasonable attorney's fees incurred by defendants in connection with this litigation, to Judge Boyle resulting in the R&R at issue.
III. The R&R
In his R&R, Judge Boyle began by noting that in the January Report he found that "plaintiff, through his counsel, knowingly commenced a time-barred securities fraud action" and attempted to circumvent the obvious statute of limitations issue by arguing that the payment of annual dues constituted the purchase of a security, a claim [he] found to have "absolutely no chance of success under existing precedents." . . . For these reasons [he] found that the Complaint substantially failed to comply with Rule 11(b). In addition, [he] recommended that the presumption under the PSLRA, that the sanctions awarded equal the full amount of attorney's fees and costs incurred by defendants herein, should apply to the within case on the grounds that plaintiff and Stein "failed to offer any evidence or argument whatsoever to rebut this presumption . . . ." These findings were adopted by [the Court]. . . . (R&R at 2-3 (quoting January Report at 21-22).)
Turning then to the issues at hand, Judge Boyle summarized plaintiff's and Stein's arguments as challenging the PSLRA's presumption that the full amount of attorney's fees and costs is the proper sanction on three grounds: "(1) the Complaint contained both frivolous and non-frivolous claims (i.e. the state law claims) and therefore the Complaint does not substantially fail to comply with Rule 11; (2) the hourly rates charged by defendants' counsel are not reasonable; and (3) fees charged prior to the motion for summary judgment should not be considered recoverable." (R&R at 3.)
Addressing plaintiff's argument regarding the state claims, Judge Boyle first noted that the January Report specifically noted that these claims would likely have been subject to dismissal under the Colorado River doctrine,*fn1 although he did not base his recommendation on that ground. Rather, Judge Boyle reasoned that because the sole basis for federal jurisdiction was the frivolous securities fraud claim, there was no good faith basis for commencing this federal action and the baseless and time-barred securities fraud claim rendered the Complaint as substantially failing to comply with Rule 11. (R&R at 4.) Judge Boyle concluded that ""[s]ince plaintiff and Stein have failed to submit any evidence to support a claim that the Rule 11 violation was de minimis or that the sanctions imposed herein would create an unreasonable financial burden for either of them, the statutory presumption applies and defendants should be awarded the full amount of the fees requested." (Id. at 4-5.)
Judge Boyle also rejected the argument that the hourly rate should be set at no more than $200 per hour, calculated by blending the hourly rate for all of the defense attorneys. He found that the rate charged by defendants' counsel were reasonable and that similar rates had been found reasonable by other courts in this and the Southern District of New York.
Finally, Judge Boyle found that the argument that defendants should not be awarded the legal fees incurred prior to the summary judgment motion was contrary to the language of the PSLRA, which states that the appropriate sanction is "an award to the opposing party of the reasonable attorneys' fees and other expenses incurred in the action." (R&R at 7 (quoting 15 U.S.C. § 78u-4(c)(3)(A)(ii) (emphasis added)).)
III. The Objections to the R&R
In support of their objections, plaintiff and counsel argue that the complaint cannot be found to have substantially failed to comply with Rule 11 because "[t]he transaction in 2005 (like its predecessor in 2004) constitutes the exercise of an 'option' which is a 'security' under the Exchange Act"; the suit as a whole was not abusive and any Rule 11 violation was not substantial because of the presence of the state law claims; there was no pattern of harassment; and there was no Rule 11(b)(1) notice to the plaintiff in advance of the Court's ruling. (Plaintiff's & Counsel's Objections, Dkt. No. 42 ("Objections"), at 11-17.)*fn2
I. Applicable Standards
Federal Rule of Civil Procedure 72(b) provides that when a magistrate judge issues a report and recommendation on a matter "dispositive of a claim or defense of a party," the district court judge shall make a de novo determination of any portion of the magistrate judge's disposition to which specific written objection has been made. Fed. R. of Civ. P. 72(b). Accordingly, the Court applies de novo review to those portions of the Report to which objections were raised. See id. The Court reviews those portions to which no objections have been filed for clear error. See, e.g., Kenneth Jay Lane, Inc. v. Heavenly, Apparel Inc., No. 03 CV 2132, 2006 WL 728407, at *1 (S.D.N.Y. Mar. 21, 2006).
Plaintiff and counsel appear to propose a different standard of review than that set forth above. Maintaining that under the de novo standard "no deference [is accorded] to any prior resolution of the same controversy," (objections at 11), they seek to reargue issues determined by the January Report and the Court's adoption thereof. For example, Plaintiff and counsel maintain that the action is not frivolous because the transaction at issue qualifies as a security under the Exchange Act. That issue, however, is not a subject of the R&R to which the current objections relate. Rather, that was a matter addressed in Judge Boyle's January Report, which the Court adopted over the objections of plaintiff and his counsel. To the extent they now seek to readdress that issue, as well as other issues determined not in the R&R but in the January Report and the Court's adoption thereof, the governing standard is that for reconsideration.
The decision to grant or deny a motion for reconsideration lies squarely within the discretion of the district court. See Devlin v. Transp. Comm'ns Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999). The standard for a motion for reconsideration "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or [factual] data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (finding district court properly exercised its discretion to reconsider earlier ruling in light of the introduction of additional relevant case law and substantial legislative history); see also Arum v. Miller, 304 F. Supp. 2d 344, 347 (E.D.N.Y. 2003) ("To grant such a motion the Court must find that it overlooked matters or controlling decisions which, if considered by the Court, would have mandated a different result.") (citation and internal quotation marks omitted). "The major grounds justifying reconsideration are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790). Thus, a "'party may not advance new facts, issues, or arguments not previously presented to the Court.'" National Union Fire Ins. Co. v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)(quoting Polsby v. St. Martin's Press, No. 97 Civ. 690, 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000)). A party may, however, introduce relevant authority that was not before the district court when it initially ruled on the matter. See Vaughn v. Consumer Home Mortgage Co., 2007 WL 140956 at *6 (E.D.N.Y. Jan. 22, 2007).
II. To The Extent The Objections are in Reality a Request for Reconsideration, Reconsideration is Denied
To the extent the Objections are a request for reconsideration, reconsideration is denied on several grounds. First, the motion is untimely. Local Rule 6.3 provides in pertinent part:
A notice of motion for reconsideration or re-argument of a court order determining a motion shall be served within ten (10) days after the court's determination of the original motion, or, in the case of a court order resulting in a judgment, within ten (10) days after entry of judgment.
This Court issued its decision concerning whether the transaction constituted a security on March 24, 2008. Plaintiff's and counsel's Objections, wherein reconsideration is apparently sought, were not filed until October 14, 2008 and therefore the request for reconsideration is untimely.
Moreover, the current argument proffered in support of the contention that the transaction at issue, the payment of dues, is a security within the meaning of the Securities Exchange Act is that it constitutes an "option." This argument was not raised in connection with the defendant's motion for summary judgment. Rather, it was argued that the dues payment constituted a preferred security. As noted above, on reconsideration a party may not raise "arguments not previously presented to the Court. " National Union Fire Ins. Co. v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001). Neither was this argument made to Judge Boyle in connection the R&R currently at issue. See Travelers Ins. Co. v. Estate of Garcia, 2003 WL 1193535 (E.D.N.Y. 2003) (objecting party may not raise new arguments that were not made before the Magistrate Judge). Finally, the Court notes that plaintiff proffers no authority to support his new argument.
With respect to the challenge to the determinations that the frivolity of the Complaint was substantial and that sanctions were warranted because of plaintiff and counsel's harassment of defendants and because counsel had been sanctioned in the past, this was a matter fully argued in connection with the initial motion and addressed in the Judge's Boyle January Report, which was adopted by the Court. Motions for reconsideration are not appropriate to merely rehash arguments previously considered by the Court. See Medoy v. Warnco Employees' Long Term Disability Ins. Plan, 2006 WL 355137 (E.D.N.Y. Feb. 15, 2006) ("The standard for reconsideration is strict in order to dissuade repetitive arguments on issues that have already been considered fully by the Court.").
Reconsideration is denied.
II. The Objections are Denied and the Court Adopts the R&R in its Entirety
Having conducted a de novo review of the record and the law as to those portions of the R&R that have been objected to and having reviewed for clear error those portions to which no objections were filed, the Court adopt's Judge Boyle's thorough R&R in its entirety. In doing so, the Court finds that, even if the state claims are not frivolous, because the sole basis for federal jurisdiction was the frivolous securities fraud claim there was no good faith basis for the commencement of this federal action, rendering the complaint noncompliant with Rule 11. Because Stein failed to submit any evidence that the violation was de minimis or that sanctions would create an unreasonable financial burden, the statutory presumption applies and defendants should be award the claimed full amount of fees incurred in this action. Also, the Court rejects the argument that there was an absence of due process because of a claimed lack of notice of the request for sanctions. Defendants' notice of motion and supporting papers clearly sought sanctions pursuant to PSLRA. See, e.g., Defs.' Notice of Motion, Dkt. No. 21-1, at 2; Declar. of M. Kaplan, Dkt No. 21-2, at 14, 18; Defs.' Mem. in Supp., Dkt No. 22, at 26-30. Indeed, plaintiff even addressed the issue of sanction in his opposing papers. See Pl.'s Mem. in Opp., Dkt. No. 26, at 16-18. Nor do the procedures under Rule 11 apply to the imposition of sanctions under the PSLRA. See De La Fuente v. DCI Telecomms. Inc., 259 F. Supp. 2d 250, 258 n.4 (S.D.N.Y. 2003) ("The PSLRA . . . does not incorporate the safe harbor provision contained in Rule 11c.").
III. The Sanctions Award Shall be Adjusted to Reflect Additional Amounts Incurred
In their opposing papers, defendants requestthat the sanctions award be adjusted upward in the amount of $15,007.58 reflecting additional bills from May 23, 2008 through the submission of their opposition to the Objections.The request is granted in view of the fact that said additional amount is reasonable as per submissions and the PSLRA specifically states that where a complaint substantially fails to comply with any requirement of Rule 11(b), the "appropriate sanction" is "an award . . . of the reasonable attorneys' fees and other expenses incurred in the action." 15 U.S.C. § 78u-4(c)(3)(A) (ii) (emphasis added). Accordingly, the sanctions award is adjusted and defendants are entitled to recover the amount of $94,845.45, i.e. $79,837.87 and $15,007.58.
The Objections are denied and the Court adopts Judge Boyle's R&R in its entirety, with the amount of sanctions awarded against plaintiff and his counsel adjusted to $94,845.45. The Clerk of Court is directed to enter judgment in favor of defendants and upon entry of judgment to close this case.
Denis R. Hurley Senior District Judge
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How can I start my labor at 36 1/2 wks?
I'm 36 1/2 wks and have been in and out of real labor since 30. The doc released me from meds and bedrest at 35 wks. I had an appt today and she told me that its perfectly safe to have her now and that it could be any day now unless my contractions decide to quit. I had bad contractions Fri night and the last few days they've kinda slowed down, any ideas how to get this ball on a roll?
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When she says safe, she means that the risk of your baby dying now because of prematurity is extremely small. That doesnt mean your body or your baby is ready to come out. The OB association changed their recommendations last year to say you shouldnt induce at all until 39 weeks (instead of 38 weeks) because there was a big difference in how many babies had trouble breathing and ended up in the NICU. If they know there is a big difference between 38 and 39 weeks, imagine how big the difference is between 36 weeks and 40, or 41, or 42. Let your baby finish developing her body and brain. She will never get the chance to do it again. Dont try to force her out, and you may avoid a host of complications.posted 08/02/2012 by choirfiend
Why would you? The longer baby stays in there, the better. If your labor stopped & you are a month early, that's a good thing. Leave it alone, baby will be born when it's ready. Just because your Dr. says it's safe, doesn't mean you should force it. Plus your baby is NOT full term at 36 weeks, sorry.posted 08/01/2012 by a BabyCenter Member
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The 2008 BMO Skate Canada Junior Nationals took place Jan. 30 – Feb. 2 in Ottawa. A number of skaters represented clubs from the greater Hamilton/Burlington area at this event, several placing in the top ten.
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May 21, 2012
ABDUS SHAHIDv. BOROUGH OF EDDYSTONE
In this pro se civil rights action under 42 U.S.C. § 1983, plaintiff Abdus Shahid alleges that the Borough of Eddystone ("the Borough") discriminated against him on the basis of his race, national origin and religion. Specifically, he claims that the Borough deliberately prevented him from renting out and living at a property he owns because it did not want a Muslim from Bangladesh owning property in a "white area." Shahid alleges that, as part of the Borough's discriminatory course of conduct, Borough officials fabricated a series of citations for violating municipal ordinances and caused Shahid to be convicted of those violations by lying in court. The Borough moved for summary judgment, arguing that Shahid's entire complaint is barred by the Heck doctrine.*fn1
If successful, Shahid's claim that his convictions were wrongfully obtained would directly undermine the validity of those convictions. That claim is Heck-barred. Although not raised by the Borough, the Rooker-Feldman doctrine also precludes Shahid's challenge to his convictions. However, Shahid's other allegations against the Borough are factually and conceptually distinct from the issues litigated in state court. Because those allegations do not implicate his convictions, they are not barred by Heck or Rooker-Feldman.Thus, we granted the motion in part and denied it in part.*fn2
Shahid, a U.S. citizen, was born in Bangladesh. He is currently a resident of New York. In January 2007, Shahid purchased a residential property in Eddystone, where he says he intended to live once he moved to Eddystone permanently. In the meantime, Shahid has rented the building's first and second floors as separate apartments.
Shahid claims he rented one of the units to Joshua Taylor and his mother, whom Shahid identifies only as a Borough "tax director" or "high-ranking" official. He alleges that Taylor and his mother lived at the property from May 30, 2007 until September 7, 2008, when Shahid threatened to evict them for being four months behind on the rent. He claims that the tax director told him that the Borough would never allow a Muslim from Bangladesh to own or live in the property because it was located in a white area.
Shahid claims that the next day, September 8, 2008, Borough Code Official Dallas Walters came to the property to conduct an inspection. He says that when he informed Walters that he intended to move to the property from New York, Walters responded that the Borough Council was aware that he was Muslim and Bangladeshi; that it was against Borough policy to allow such a person to live or own property in that area; that Walters was authorized to implement the Borough's discriminatory policy; and, that he would call the police if Shahid returned to the building. Shahid alleges that Walters then posted notices reading "Keep Out, Uninhabitable" on the doors, windows, and walls of the property.
Shahid alleges that later, when he was performing maintenance work on the property, Walters appeared and threatened to call the police if he did not leave the premises. Shahid alleges that Walters came to the property several times to discourage prospective tenants from renting from him, telling approximately fourteen or fifteen persons not to rent the units. He also claims that some of those people relayed to him that Walters had told them that the Borough would not allow non-whites to own rental property in that area. He alleges that he was unable to rent the apartments after September 2008 because of the Borough's harassment.
On or around December 23, 2008, Walters gave Shahid a report listing numerous violations of Borough ordinances at the property. Claiming that previous and subsequent inspections revealed no code violations, Shahid alleges that Walters's report was fabricated. Shahid did not receive citations for any of the violations cited in the December 23, 2008 report.
In 2008, 2009 and 2010, Shahid was cited for renting his property without a certificate of occupancy in violation of the Borough Code. He was convicted of those offenses and his convictions were upheld on summary appeal before the Delaware County Court of Common Pleas.
Shahid admits that he has never obtained a certificate of occupancy to rent out the apartments. However, he alleges that, even though he properly applied for a certificate and paid the required fee, the Borough denied his application as part of its scheme to keep non-whites out. Specifically, he claims that Walters fabricated the December 23, 2008 inspection report to create a pretext for denying him a certificate, thereby preventing him from living in or renting out the property.
Shahid was convicted of three other Borough ordinance violations in 2010 and 2011 for failing to remove snow and for maintaining overgrown grass or weeds at the property. He was fined for each conviction, and his convictions were affirmed on appeal.
Standard of Review
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Judgment will be entered against a party who fails to sufficiently establish any element essential to that party's case and who bears the ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In examining the motion, we must draw all reasonable inferences in the non-movant's favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003).
The initial burden of demonstrating there are no genuine issues of material fact falls on the moving party. Fed. R. Civ. P. 56(a). Once the moving party has met its burden, the nonmoving party must counter with "'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The non-movant must show more than the "mere existence of a scintilla of evidence" for elements on which she bears the burden of production. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Bare assertions, conclusory allegations or suspicions are not sufficient to defeat summary judgment. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
Shahid alleges that, as part of the Borough's campaign to keep him out of the neighborhood, Walters and other Borough officials concocted a series of citations for violating Borough ordinances, including for renting a dwelling without a certificate of occupancy. Shahid was convicted of six of those violations in 2009, 2010 and 2011, and his convictions were affirmed on appeal before the Court of Common Pleas of Delaware County. He claims that he was convicted because Walters and the other officials supported the fabricated citations with false testimony in court.
Heck v. Humphrey
The Borough argues that Shahid's entire complaint is barred by the Supreme Court's ruling in Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, a plaintiff cannot bring a constitutional claim under § 1983 if a judgment in his favor would demonstrate or imply the invalidity of a criminal conviction that has not been reversed on direct appeal or impaired by collateral proceedings. Id. at 486-87; see also Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006); Gilles v. Davis, 427 F.3d 197, 208-09 (3d Cir. 2005); Torres v. Fauver, 292 F.3d 141, 147 (3d Cir. 2002). The purpose of the Heck doctrine is to promote the "finality and consistency" of criminal convictions by avoiding "parallel litigation" and "the creation of two conflicting resolutions arising out of the same or identical transaction." Heck, 512. at 484-85 (citations omitted); see also Gilles, 427 F.3d at 209.
As a threshold matter, we must decide whether the Heck doctrine
applies to
convictions for violating the Borough ordinances at issue. The Borough
argues that it does, noting that a number of courts in the Third
Circuit and elsewhere have applied Heck to bar § 1983 plaintiffs from
challenging convictions under local ordinances. See, e.g.,
v. Delgado, 463 F.3d 489, 495 (6th Cir. 2006), abrogated on other
grounds by Wallace v. Kato, 549 U.S. 384 (2007); Ngoc-Chi Huynh v.
City of Hous., No. 10-1303, 2011 WL 6250792, at *7 (S.D. Tex. Dec. 12,
2011); Torres v. City of Laguna Niguel, No. 07-736, 2009 WL 5184467,
at *8 (C.D. Cal. Dec. 21, 2009); Wade v. Colaner, No. 06-3715, 2009 WL
776985, at *2 (D.N.J. Mar. 20, 2009); Ference v. Twp. of Hamilton, 538
F. Supp. 2d 785, 790 (D.N.J. 2008); Abusaid v. Hillsborough Cnty. Bd.
of Cnty. Comm'rs, 637 F. Supp. 2d 1002, 1007-09, 1019-20 (M.D. Fla.
2007); Yeager v. City of San Diego, No. 05-2089, 2007 WL 7032933, at
*5-6 (S.D. Cal. June 1, 2007); Acevedo v. City of O'Fallon, No.
07-0859, 2007 WL 1541881, at *3 (E.D. Mo. May 24, 2007); Cordova v.
City of Reno, 920 F. Supp. 135, 137 (D. Nev. 1996).*fn4
Most of these cases concerned charges or convictions for
criminal offenses.*fn5 In Pennsylvania, violations of
local ordinances are not crimes, but rather are civil infractions.
Town of McCandless v. Bellisario, 709 A.2d 379, 381 (Pa. 1998); In re
Investigating Grand Jury, 437 A.2d 1128, 1131-32 (Pa. 1981). Thus, we
must determine whether Heck applies to Shahid's convictions, even though
they are for civil violations rather than violations of the Crimes
This question is complicated by the manner in which local ordinance
violations are prosecuted in Pennsylvania. Although such violations
are not "crimes," prosecutions of those violations are criminal
proceedings governed by the Pennsylvania Rules of Criminal Procedure
where those ordinances provide for "imprisonment upon conviction or
upon failure to pay a fine or penalty." In re Investigating Grand
Jury, 437 A.2d at 1132 (quoting Pa. R. Crim. P. 3(g), (l));*fn6
Borough of West Chester v. Lal, 426 A.2d 603, 605 (Pa. 1981);
see also City of Phila. v. Pennrose Mgmt. Co., 598 A.2d 105, 108-09
(Pa. Commw. Ct. 1991). In other words, although the violations are not
crimes listed in the Crimes Code, they are treated as criminal
violations because they can result in the imposition of criminal
penalties. Thus, those prosecuted for violating municipal ordinances
that provide for criminal penalties are afforded basic protections
available to criminal defendants generally, including those afforded
by the Rules of Criminal Procedure and the Constitution. See
Bellisario, 709 A.2d at 381 (holding that the Pennsylvania Rules of
Criminal Procedure apply); Lal, 426 A.2d at 605 (holding in a double
jeopardy challenge to a prosecution for violating a borough ordinance
that "[s]ince the trial court's determination was a criminal
proceeding, a verdict of acquittal cannot be reviewed without placing
the defendant twice in jeopardy in violation of the constitutional
proscriptions." (citing Sanabria v. United States, 437 U.S. 54, 64
(1978); Commonwealth v. Wimberly, 411 A.2d 1193, 1195 (Pa. 1980))).
Shahid's prosecutions for violating the Borough ordinances were criminal proceedings. The ordinances provide for "imprisonment upon conviction or failure to pay a fine." See Borough of Eddystone, Pa., Code § 97-15 (2006) (providing for a penalty for renting without a certificate of occupancy, and imprisonment for failure to pay that penalty); id. § 256-41 (same as to failure to remove snow from sidewalks within twenty-four hours); id. § 81-5 (same as to failureto maintain grass or weeds). Consequently, prosecutions under them are governed by the Rules of Criminal Procedure. The Pennsylvania Supreme Court has held that a prosecution for violations of similar municipal ordinances, including for renting an apartment without a certificate of occupancy, is a criminal proceeding. See Lal, 426 A.2d at 605.
Applying Heck to such convictions comports with the policy underlying the Heck doctrine--to promote the finality of criminal convictions and avoid "parallel litigation over the issues of probable cause and guilt . . . ." Heck, 512 U.S. at 484 (citation omitted). Regardless of whether the offense is technically classified as civil or criminal, a § 1983 judgment undermining the validity of the conviction would imply that the state's criminal process produced an erroneous outcome. It would imply that the defendant was wrongfully convicted despite the availability of various procedural protections, including the finding of guilt beyond a reasonable doubt. See Commonwealth v. Nicely, 988 A.2d 799, 803 n.3, 805 (Pa. Commw. Ct. 2010) (citations omitted). The fact that the offense is technically civil does not change the implication for the state's criminal process. Thus, we determine that Heck applies to convictions for civil infractions obtained in criminal proceedings.
District courts considering similar convictions have reached the same conclusion. In Ference, the District of New Jersey held that Heck applies to convictions for violating municipal ordinances, even though those violations are not defined as "crimes" under New Jersey law. Ference, 538 F. Supp. 2d at 790. The court found it sufficient that the convictions were obtained through the criminal process. Id. Similarly, the district court in Acevedo applied Heck to a conviction under a "quasi-criminal" municipal ordinance. 2007 WL 1541881, at *2-3.*fn7
Having determined that Heck applies to Shahid's convictions, we must now decide whether the doctrine bars any part of his § 1983 equal protection claim. To determine whether a claim is Heck-barred, we engage in a two-part inquiry. We first must determine "whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." Heck, 512 U.S. at 487; see also Williams, 453 F.3d at 177. If so, we ask whether the conviction has been overturned or invalidated by an officer or tribunal authorized to do so. Heck, 512 U.S. at 486-87; see also Gilles, 427 F.3d at 208-09.
Shahid concedes that his convictions were upheld on appeal. Thus, the only question is whether success on his § 1983 claim would "necessarily demonstrate the invalidity" of Shahid's convictions. Williams, 453 F.3d at 177 (internal quotations omitted). We must first identify the necessary elements of both Shahid's prior convictions and his § 1983 equal protection claim. See Dyer v. Lee, 488 F.3d 876, 879 (11th Cir. 2007). We then determine whether any of the issues necessarily litigated in state court prevent Shahid from bringing any of his claims here.
Shahid's convictions for failing to remove snow and for maintaining overgrown grass or weeds present a straightforward question. To prove a violation of a municipal ordinance in Pennsylvania, the prosecution needs "only [to] offer evidence of facts establishing that the violation occurred." Providence Builders, Inc. v. Commonwealth, 492 A.2d 488, 489 (Pa. Commw. Ct. 1985). Therefore, the issues before the state court were whether Shahid had in fact failed to remove snow from the sidewalk and failed to properly maintain the grass and weeds. In convicting him, the state court necessarily determined that he had.
To prove his equal protection claim, Shahid must show that the Borough intentionally fabricated the citations and gave false testimony in court in order to discriminate against him on the basis of his race, religion or national origin. See Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 543-44 (3d Cir. 2011); Johnson v. Anhorn, 416 F. Supp. 2d 338, 375-76 (E.D. Pa. 2006) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)). It is clear that this claim would necessarily imply that the state court's determination of guilt was wrong. Deciding whether a party's evidence should be believed is the function of the fact-finder. Carter v. Hewitt, 617 F.2d 961, 972-73 (3d Cir. 1980). To accept Shahid's claim would be to determine that the state court fact-finders improperly credited the Commonwealth's evidence and discredited his. The result would be two conflicting resolutions of the same question. See Zhai v. Cedar Grove Municipality, 183 F. App'x 253, 255 (3d Cir. 2005) ("Zhai's conspiracy claims under 42 U.S.C. §§ 1985-1986 are based on her allegation that the officers, prosecutor, and judge conspired to bring false charges to secure a release for any civil liability resulting from the incident. However, these claims are barred, along with her challenges to the guilty plea itself, by [Heck]."). The Supreme Court in Heck rejected a similar claim, holding that the plaintiff was barred from alleging that he was convicted because officers destroyed exculpatory evidence. 512 U.S. at 489. Shahid received a full opportunity to be heard in state court and present his claim that the charges against him were fabricated. The trial court rejected that claim, as did the court on summary appeal.*fn8 Shahid cannot use § 1983 as a vehicle for relitigating those issues.*fn9
Shahid's convictions for violating the certificate of occupancy requirement present a more complex question. To prove these violations, the prosecution had to show only two elements: that Shahid was renting an apartment and that he had not obtained a certificate. Shahid clearly cannot now argue that he was wrongly found guilty because Borough officials fabricated the citations and lied in court. Thus, Shahid's claim that he did not violate the ordinance because the Borough prevented him from bringing tenants into the property is Heck-barred.
The Borough urges us to decide that Shahid's certificate of occupancy convictions bar his entire claim. The Borough appears to argue that because the state court found Shahid guilty of violating the ordinance, it necessarily determined that the Borough's code inspections and refusal to grant a certificate were not discriminatory. We disagree.
Shahid's entitlement to a certificate and his violation of the certificate requirement are distinct issues. Even if the Borough's denial of a certificate was discriminatory, Shahid was not entitled to disregard the requirement and rent his apartment anyway. See Poulos v. State of New Hampshire, 345 U.S. 395, 414 (1953) ("Our Constitution does not require that we approve the violation of a reasonable requirement for a license to speak in public parks because an official error occurred in refusing a proper application.").The proper avenue was for him to challenge the denial itself. Id. The state court could have found Shahid guilty of violating the certificate of occupancy ordinance without determining whether he should have been granted a certificate. Consequently, the fact-finder in this case could decide that the Borough discriminated against Shahid by concocting reasons not to grant him a certificate without impugning the state court's judgment.*fn10
Even though Shahid was in violation of the certificate of occupancy ordinance, the Borough was not free to commit the other discriminatory actions Shahid alleges, including fabricating other code violations, threatening to call the police if Shahid did not leave the property, and discouraging prospective tenants from renting from a non-white landlord. See Hammock v. Borough of Upper Darby, No. 06-1006, 2007 WL 3232115, at *3 n.5 (E.D. Pa. Oct. 31, 2007) (holding that the plaintiff's state court conviction for interfering with officers did not bar her § 1983 claim of excessive force because "holding otherwise would imply that a police officer could constitutionally pistol-whip any person who physically interfered with his duties, no matter how inconsequentially."); see also Whren v. United States, 517 U.S. 806, 813 (1996) ("We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race."); Carasca v. Pomeroy, 313 F.3d 828, 836 (3d Cir. 2002) ("The fact that there was no Fourth Amendment violation does not mean that one was not discriminatorily selected for enforcement of a law." (quoting Bradley v. United States, 299 F.3d 197, 205 (3d Cir. 2002) (internal quotations omitted)); Johnson,416 F. Supp. 2d at 359, 376. Of course, we expect the Borough to argue at trial that its actions against Shahid, including issuing the inspection report and placing the "uninhabitable" notices, were justified by its duty to enforce the certificate of occupancy requirement. If that is true, then Shahid's equal protection claim effectively ended with his convictions. However, it is beyond the scope of our summary judgment review to determine why the Borough took the actions it did.
The Eleventh Circuit in Dyer v. Lee declined to apply the Heck-bar to an arrestee's § 1983 action for excessive force because the court could not determine, "as a matter of law, that a successful § 1983 suit would necessarily negate the underlying conviction given the facts in the record." 488 F.3d at 883. Dyer pleaded guilty to resisting arrest arising out of her arrest for driving under the influence. Id. at 882. She then brought a § 1983 action alleging that the officers had used excessive force in arresting her. Id. at 878. Self-defense is an affirmative defense to a resisting arrest charge because a person is entitled to "resist the use of excessive force in making an arrest." Id. at 879. The defendants argued that the conviction barred Dyer's excessive force claim because if the fact-finder in the § 1983 action determined that the police did in fact use excessive force, the verdict would imply that Dyer was entitled to resist the arrest. Id. at 882-83. The court declined to apply Heck because, although the guilty plea clearly implied that some of Dyer's actions during her encounter with the officers were unlawful, it was not necessarily true that the officers did not commit excessive force at some point. Id. The court explained that "[a] reasonable jury could, without too much trouble, find both that the defendants used excessive force, and that not all of plaintiff's violent acts were justified as self-defense." Id. at 883. Simply put, the court could not determine based on the summary judgment record, without impermissibly making factual findings, that all of the events related to Dyer's encounter with the officers were necessarily part of her guilty plea. Id.; see also Garrison v. Porch, 376 F. App'x 274, 278 (3d Cir. 2010) ("[T]he fact that Garrison's threatened or attempted use of force was unlawful does not automatically mean that there is no use of force that Porch could have used in response which could have risen to the level of unreasonable and excessive."); Bush v. Strain, 513 F.3d 492, 498-99 (5th Cir. 2008) (declining to apply Heck where there was a factual dispute concerning whether the plaintiff was injured before or after her resistance ceased).
Shahid's allegations present a similar situation. From the summary appeal docket for each of Shahid's convictions, we know that on January 13, 2011, Shahid failed to remove snow from the sidewalk adjacent to his property;*fn11 on July 8, 2010*fn12 and May 3, 2011,*fn13 he failed to properly tend to grass and weeds; on September 26, 2008,*fn14 April 29-30, 2009,*fn15 and March 29, 2010,*fn16 he rented an apartment in his property without a certificate of occupancy. Whether these violations justified the Borough's other alleged actions is a question to be determined by the fact-finder at trial.
Another district court recently considered a § 1983 claim similar to Shahid's and held that the entire complaint was barred by a single conviction. See Ngoc-Chi Huynh v. City of Hous., No. 10-1303, 2011 WL 6250792, at *7 (S.D. Tex. Dec. 12, 2011). The plaintiffs in Ngoc-Chi Huynh alleged that a police officer repeatedly came to their business and each time issued between twenty and sixty fabricated citations. Id. at *1. During one of his visits, the officer allegedly mocked the plaintiffs' religious beliefs and stated that their beliefs were not helping them. Id. at *2. During a separate visit, the officer allegedly stated that he would "kick and close all the 'Vietnamese' business owners out of that area." Id. (internal alteration omitted). The plaintiffs were then convicted of violating a municipal ordinance for failure to clean a ventilation filter. Id. They alleged that the officer gave false testimony in court, which lead to their conviction. Id.
The district court dismissed the complaint, holding that the entire action was Heck-barred even though the plaintiffs were only convicted of a single offense. Id. at *7. The plaintiffs alleged in their § 1983 suit that the officer's entire course of conduct was motivated by discriminatory intent. The court explained that this theory, if successful, would impugn the underlying conviction because it required the plaintiffs to prove that all of the officer's actions, including issuing the citation for which they were convicted, were discriminatory. Id. If we followed this approach, we would take Shahid's case theory as an indivisible whole and hold that his entire complaint is Heck-barred because part of that theory undermines his convictions.
We do not read Heck so broadly. The Heck-bardoes not apply merely because part of the plaintiff's case theory, if believed, would contradict his convictions. Rather, we ask whether "a judgment in favor of the plaintiff would necessarily imply the invalidity" of the earlier conviction. Heck, 512 U.S. at 487 (emphases added). In other words, we must determine whether it is possible for a civil jury to find in the plaintiff's favor based on the alleged facts without impugning the validity of the prior criminal convictions. The state court in Ngoc-Chi Huynh determined that the store owners were guilty of the single violation, but it did not necessarily rule on the propriety of the officer's other actions. The § 1983 jury logically could have found that some of the officer's actions were unjustified and motivated by a discriminatory intent, see Vill. of Arlington Heights, 429 U.S. at 265, even though the conviction would have been obtained regardless of the plaintiffs' race. Although theplaintiffs asserted in their § 1983 suit that all of the officer's actions were discriminatory, the fact-finder was not required to accept or reject the plaintiffs' theory in its entirety. Rather, the fact-finder was entitled to consider the evidence and circumstances surrounding each of the officer's actions and to draw its own inferences from the facts. It could have accepted some of the plaintiffs' specific claims that certain actions were motivated by discriminatory intent while declining to adopt their broad inference that all the actions were part of the discriminatory scheme.*fn17
A judgment in Shahid's favor in this case is similarly reconcilable with his previous convictions. The fact-finder in this case could examine the facts and circumstances surrounding each Borough action and determine that, even though Shahid's convictions were valid and would have been obtained regardless of his race, religion or national origin, the Borough's other actions were unjustified by its code enforcement duties and were pretext for intentional discrimination. This is more apparent here than in Ngoc-Chi Huynh because Shahid has produced specific evidence to challenge certain Borough actions independent of his convictions. He has produced evidence, including the reports of private inspectors who allegedly found no violations on the property, to show that Walters's December 2008 report was false. He also presents evidence about neighboring properties to show that similarly situated white residents whose properties had code violations similar to those in Walters's report were granted certificates of occupancy and were not discouraged from living in the area.*fn18
Applying the Heck-bar narrowly, we granted summary judgment on the claims relating to the validity of his six convictions. However, because Heck does not bar Shahid from challenging the constitutionality of the Borough's other actions, we denied the summary judgment motion as to his remaining claims.
Even if Heck did not apply to Shahid's convictions, Rooker-Feldman compels the same result. The Rooker--Feldman doctrine bars "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). A federal court lacks subject matter jurisdiction over an action seeking to appeal and reverse a state court decision. Id. at 283. Therefore, a federal court may not consider a claim that would require either determining that the state court judgment was erroneously entered or reversing it. In re Knapper, 407 F.3d 573, 581 (3d Cir. 2005).
Rooker--Feldman deprives a federal court of jurisdiction where either: (1) the federal claim was litigated in state court before the federal action was filed; or (2) the federal claim is so inextricably intertwined with the state court adjudication that granting federal relief can only be predicated upon a determination that the state court was wrong. In re Madera,586 F.3d 228, 232 (3d Cir. 2009). A federal claim is inextricably intertwined with a state court adjudication when, to grant relief, the federal court must either determine that the state court judgment was erroneously entered or take action that would negate the state court judgment. Id.; Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010). Thus, a federal court may not entertain a claim that would nullify, if relief were granted, a state court's order. Id.
As explained above, Shahid argues that the state court improperly interpreted the evidence before it. He now urges us to reopen the record and determine that he was wrongfully convicted. Shahid essentially is appealing his convictions by means of his § 1983 suit. Under Rooker-Feldman, we have no jurisdiction to consider such a claim.
Rooker-Feldman does not bar Shahid's other allegations. There is no evidence that any of those allegations were actually litigated in state court. We only know that Shahid was convicted of committing six specific violations on specific dates. Further, those allegations are not "inextricably intertwined" with the state court convictions. As explained above, the allegations are factually and conceptually distinct from Shahid's convictions. A determination that the Borough committed various other discriminatory actions would not indicate that the prior state court convictions are wrong. See Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 421 (3d Cir. 2003) (citing Ernst v. Child & Youth Servs., 108 F.3d 486, 492 (3d Cir. 1997)).
Heck bars Shahid's challenge to the validity of his state court convictions because a favorable ruling on that claim would create two conflicting resolutions of the issue of Shahid's guilt. That claim is also barred by Rooker-Feldman because it is functionally equivalent to an appeal of the state court decision. Thus, we granted the Borough's motion for summary judgment as it pertains to Shahid's allegations that he was unlawfully convicted of violations of Borough ordinances.
We denied the Borough's motion in all other respects because Heck does not bar Shahid's remaining allegations. The find-finder reasonably could determine that, even though the convictions were valid, other actions were the result of the Borough's discriminatory intent. Similarly, those allegations are not barred by Rooker-Feldman because they would not result in a finding that the convictions were wrong.
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Location: Indiana
Point Spread Odds: Toronto -1
Over Under Total: 193
Money Line: Raptors -115 odds and Pacers -105 odds
Notes: Toronto evened this series at 1-1 with the 98-87 home victory in Game 2 against the Indiana Pacers as a -8 point wagering favorite. The total finished at under 195 points.
The Raptors shot 43.8% from the floor but went cold from the three point line connecting on 5 of 18 shots. Jonas Valanciunas had 23 points and 15 rebounds as he made 10 of 18 shots. Kyle Lowry contributed with 18 points, nine assists and seven rebounds. They grabbed 11 more boards than the Pacers.
Indiana went 41.4% from the floor but missed 4 of 20 from the three point line. Paul George had 28 points and four boards connecting on 8 of 15 shots. Monta Ellis had 15 points. George and Ellis were the only Pacers in double digits.
Toronto Raptors versus Indiana Pacers Free Pick: This NBA pick is available free right now to all callers to Tony's Courtesy line by dialing 1-888-711-4311. Outside of the US and Canada to receive this free pick by phone with no charge Click Here.
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Gary Numan Biography (BBC)
Tubeway Army's performance of Are "Friends" Electric? on Top of the Pops on 24 May 1979 ranks as one of the most pivotal moments in the history of the show, and in British music in general. There had been experimentations with electronics in pop music before, but nothing as perfected as Are "Friends" Electric?, which they also performed on the The Old Grey Whistle Test. It went to No.1 and stayed there for four weeks, paving the way for other British synth pop bands like Depeche Mode and The Human League, who would go on to have huge success in the 1980s.
The band's songwriter and frontman, Gary Numan, was a former punk who had changed to new wave electronic pop after playing with a Minimoog synthesiser he found in the studio where he went to record his first album, 1978's Tubeway Army. The band's second album, Replicas, from which Are "Friends" Electric? was taken, went to No.1 in the UK, as did his first album under his own name, 1979's The Pleasure Principle, which spawned the single Cars, a UK No.1 that also cracked the US Top 10. A sell-out tour, The Touring Principle, followed, from which a concert video was released, thought to be the first full-length commercial music video release.
Numan topped the chart again in 1980 with The Pleasure Principle's follow-up, Telekon, before widening his sound to include rock, jazz and funk across a further eight albums he released in the 1980s. In 1991, he co-composed the score for film The Unborn and reached a new, younger fanbase with 1994's Sacrifice, an industrial album that began Numan's critical and artistic reappraisal. Trent Reznor of Nine Inch Nails, Marilyn Manson, Foo Fighters and Smashing Pumpkins have all covered Numan songs and he's been also citied as a key influence by British dance acts such as Tricky and Basement Jaxx, who sampled Numan's "M.E." from The Pleasure Principle and This Wreckage from Telekon on their 2001 hit, Where's Your Head At?
Numan's later-period albums such as 2003's Mutante, 2011's Dead Son Rising and 2013's Splinter (Songs from a Broken Mind) have also been critically praised, and widely discussed by Numan in interviews on 6 Music with Mary Anne Hobbs and Radcliffe and Maconie.
Gary Numan Biography (Wikipedia)
Gary Anthony James Webb (born 8 March 1958), better known as Gary Numan, is an English singer, songwriter, musician, and record producer. Born in Hammersmith, London, he first entered the music industry as the lead singer of the new wave band Tubeway Army. After releasing two albums with the band, Numan released his debut solo album The Pleasure Principle in 1979.
Most widely known for his chart-topping hits "Are 'Friends' Electric?" and "Cars", Numan achieved his peak of mainstream popularity in the late 1970s and early 1980s, but maintains a loyal cult following. His signature sound consists of heavy synthesizer hooks fed through guitar effects pedals, and he is considered a pioneer of commercial electronic music.
- Gary Numan on Depeche Modehttps://ichef.bbci.co.uk/images/ic/240x135/p0244mq4.jpghttps://ichef.bbci.co.uk/images/ic/240x135/p0244mq4.jpg2014-08-03T08:12:00.000ZElectronic pioneer Gary Numan tell Mary Anne Hobbs how Depeche Mode changed his life.http://www.bbc.co.uk/music/audiovideo/popular/p0244mr1
Gary Numan on Depeche Mode
- Gary Numan: Key of Life interview with Mary Anne (Extended Cut)https://ichef.bbci.co.uk/images/ic/240x135/p023pxqv.jpghttps://ichef.bbci.co.uk/images/ic/240x135/p023pxqv.jpg2014-07-27T08:00:00.000ZFull, intimate interview between Gary Numan and Mary Anne Hobbs.http://www.bbc.co.uk/music/audiovideo/popular/p023pxrd
Gary Numan: Key of Life interview with Mary Anne (Extended Cut)
- Gary Numan chats with Michael Sheenhttps://ichef.bbci.co.uk/images/ic/240x135/p01p23wr.jpghttps://ichef.bbci.co.uk/images/ic/240x135/p01p23wr.jpg2013-12-29T16:04:00.000ZGary Numan chats with Michael Sheen.http://www.bbc.co.uk/music/audiovideo/popular/p01p23wt
Gary Numan chats with Michael Sheen
- Gary Numan chats to Radcliffe and Maconiehttps://ichef.bbci.co.uk/images/ic/240x135/p01lkxpn.jpghttps://ichef.bbci.co.uk/images/ic/240x135/p01lkxpn.jpg2013-11-14T17:30:00.000ZGary Numan chats to Radcliffe and Maconie about his twentieth album Splinter.http://www.bbc.co.uk/music/audiovideo/popular/p01lkxrv
Gary Numan chats to Radcliffe and Maconie
- Gary Numan speaks to Marc Rileyhttps://ichef.bbci.co.uk/images/ic/240x135/p01h346s.jpghttps://ichef.bbci.co.uk/images/ic/240x135/p01h346s.jpg2013-10-19T20:00:00.000ZGary Numan joins Marc Riley in the studio to speak about his new album Splinter.http://www.bbc.co.uk/music/audiovideo/popular/p01h34lk
Gary Numan speaks to Marc Riley
- Gary Numan in conversation with Radcliffe and Maconiehttps://ichef.bbci.co.uk/images/ic/240x135/p019m31h.jpghttps://ichef.bbci.co.uk/images/ic/240x135/p019m31h.jpg2013-05-27T14:17:00.000ZGary Numan speaks to Mark and Stuart about his brand new album, Splinter.http://www.bbc.co.uk/music/audiovideo/popular/p019m328
Gary Numan in conversation with Radcliffe and Maconie
Gary Numan Tracks
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Property DetailsMove-in ready, light & bright end-unit, top floor condo. NEW flooring & paint. Security system, granite & marble counter tops, 42" kitchen cabinetry, matching black appliances, fridge stays, 9 ft ceilings! Balcony off the Great/Living Rm., Juliet balcony off master, walk-in-closet, HUGE bathrooms, double sink in master bath, large shower. Excellent location w/Mitchell Park at one end and W. Market St. shopping & amenities at the other. Carefree living!
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Additional Property InformationThis listing located at 100 Thornton Court, Greensboro, NC boasts two bedrooms and two bathrooms. A 1 story, condo upper style property, it is currently availible for $108,000.
Highlights include ceiling fan(s), co detector, dead bolt(s), dryer connection, laundry room - main level, security system, separate shower, smoke alarm, solid surface counter, washer connection, covered porch.
This property is listed by Jan Epps-Dawson of Allen Tate Company - Charlotte located in North Carolina.


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Did You Know?photo galleryquotes
Rabbi Cohen (Character)
from Pi (1998)
FilmographyEdit Credits
- Pi (1998) Played by Stephen Pearlman
... aka "π" - International (English title)
Additional Details
Fun Stuff
Rabbi Cohen: [a group of Kabbalists, the Rabbi speaks to Max] The Talmud tells us it began 2,000 years ago, when the Romans destroyed the second temple.
Maximillian Cohen: What is this?
Rabbi Cohen: Max, you will understand everything if you listen... The Romans also destroyed our priesthood, the Cohanim. And with their deaths, they destroyed our greatest secret. In the center of the temple was the heart of the Jewish life, the Holy of Holies. It was the earthly residence of our God...
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The Undertaker Possibly Taking Time Off, MVP and Bret Hart Updates
17 Responses to The Undertaker Possibly Taking Time Off, MVP and Bret Hart Updates:
ExplosionDate: Oct 23, 2010 at 9:11 am
I don't find that fair from the WWE to stop M.V.P from changing his look. I don't think he is the 1st wrestler to change his look.
DROC MAJASDate: Oct 23, 2010 at 10:28 am
ok wtf is wrong wit the WWE? Dey let Shad Big fa nothin Gaspard change his hair and attire but they won t let M.V.P Change his luk? dats jus wrng and i waz M.V.P I d Go To TNA Wur u hav a voice ta wat u luk like. Vince may not no dis but he s loosing gud superstars cause of stupid shit like dis!
LeonDate: Oct 23, 2010 at 10:50 am
Oh my goodness. My head hurts and I've gone cross-eyed.
L0k1Date: Oct 23, 2010 at 11:35 am
Can that guy sound less stupid when he's typing. Use real words buddy then maybe people will look at it seriously.
The MikeDate: Oct 23, 2010 at 11:59 am
That sucks that taker is taken more time off. i allready quit watchn raw. i just watch smackdown for kane & taker. and it just sounds like wwe pickn on mvp.
THE POPE MANARIO DINERODate: Oct 23, 2010 at 12:41 pm
TAKER needs to retire alreaddy and MVP im with you and against you you need to come to tna were your voice will be herd and you will be world champ FINALLY and a hair cut REALLY BRO do you think that really gonna help you get a push or something a year later you,kingstun,truth,henry if not retired alreaddy are still going to be jobbing to guys like CENA,ORTON,HHH, even lower levels like cody,mcintyre,miz,rhiley, but gee whiZ that's how it is up north(wwe)
AlexDate: Oct 23, 2010 at 1:07 pm
STOP SAYING MVP SHOULD GO TO TNA!!!! He was already in tna!!! Do any of you remember Antonio Bank$?? didnt think so! The only thing he's famous for over there is jobbing to Monty Brown! see how well he was treated?! what he needs to do is stop complaining! you dont see chris masters, luke gallows, or evan bourne complaining about their losing streaks! ugh just be happy you're workin in a major promotion and not the indies again!
THE DOPE GENITALO VAGINLODate: Oct 23, 2010 at 1:57 pm
Zek jackson should go to tna theyll treat ya better and wheres shelton b at? he should be in tna. and mike tyson, you should b n tna, playa you need a job. O.J. when u get out of prison in ten years, go to tna. puff daddy, tna needs u dawg. shaq, give up on basketball and get in tna. snoop dogg, rvd needs a buddy to smoke a blunt with. who else im i missn…oh yeah 50 cents, i think your worth alot more, come to tna, tna, tna, tna, tna, tna……………
MurmerDate: Oct 23, 2010 at 2:26 pm
yeah.. shad cut his hair and changed his attire and he is still in the new smackdown vs raw video game which hasnt even come out yet with the same attire and hair he had when he was in cryme tyme. CM Punk also has short hair now yet in the new smackdown vs. raw video game he has long hair and the beard. this doesn't make much sense to me.
MurmerDate: Oct 23, 2010 at 2:26 pm
oh and another thing, undertaker should GTFO of wwe already
K LawDate: Oct 23, 2010 at 2:41 pm
That's how CM Punk used to look before he got his hair cut over the summer… WWE wanted his long hair and beard look for the game rather then his short hair. They wanted his first SES look… But they do have him wearing his mask as a DLC package for the Smackdown game coming out early next year… Shad changed simply because WWE wanted him to be a singles competitor. Why would he stay the same way like JTG? MVP doesn't need a change. It won't fucking matter really. He'll still be doing the same shit he is now.
So if Undertaker needs surgery, then that only means he'll lose the Buried Alive match Sunday… Or if he wins the World Title, he might lose it at the next pay per view… Just hope Undertaker is back by Wrestlemania. WM is Undertaker and they need him…
THE POPE MANARIO DINERODate: Oct 23, 2010 at 8:05 pm
dude you are on the money all of them should go to tna along side paris hilton,pritney spears,linsey lohan,justin bebber,goarge w. bush,peter griffin,and YES even harry potter
ExplosionDate: Oct 23, 2010 at 8:36 pm
I'm sick & tired of The Undertaker's winning streak at WrestleMania and I think its about time it ended, but unfortunately it won't happen at the next WrestleMania because their isn't anybody who can take The Undertaker's spot as the top guy, not even John Cena, Randy Orton or Kane
K LawDate: Oct 23, 2010 at 9:07 pm
Explosion… Smash your computer and go kill yourself for those ridiculous comments… Undertaker's streak is apart of who he is and that's never going to change… John Cena doesn't need to beat the Undertaker at Mania to become a top star. He already is and has been for years. His stuff sells more then Undertaker's. His popularity is bigger then Undertaker's. Undertaker is in a league of his own way above Cena, Orton, and anyone else.
MurmerDate: Oct 23, 2010 at 9:49 pm
@K Law. you dont get it… according to this article they dont want MVP changing his look and one of the reasons is because the new video game coming out, it would have a different look than whatever he has planned to change it to. AND if WWE is against that then they wouldnt have guys like shad and punk doing it. i never said mvp needed a change because i quite frankly dont even care.
also… you said "John Cena doesn't need to beat the Undertaker at Mania to become a top star. He already is and has been for years." in a response to someone. now.. i dont necessarily want john cena to end the streak. however, the undertaker is a legend and has been for years, and it is getting tiring to watch him struggle to walk right in the ring now. i wouldnt mind taker coming back for wrestlemania matches, but this guy should not be main eventing for the world title, what is it doing for the young stars? absolutely nothing. so its hypocritical in a way to say cena vs. taker should not happen while insinuating that the reason why is because it wont do anything for a young guy. taker needs to not end up like flair and retire at the right time. in my opinion.
K LawDate: Oct 23, 2010 at 10:36 pm
@Murmer… I do get why MVP can't change his looks… I was saying, like it would matter if he did? It would accomplish nothing because WWE simply ain't pushing him no more… Shad changed because he needed a new gimmick outside of his "thug gimmick"… Punk loss a match which resulted in his hair bring shaved obliviously…
And I'm surprised you actually consider John Cena a young star? Fact is, he doesn't need to beat Undertaker like I said… Someone like John Morrison, Jack Swagger, or Sheamus could benefit more from beating Undertaker at Wrestlemania then Cena…
As far as Undertaker being like Flair… You don't hear about Flair being injured and walking weak backstage… If Flair can still go, then obliviously he's going to continue to wrestle… Taker will retire like Shawn Michaels when the time comes.
MurmerDate: Oct 24, 2010 at 5:21 pm
i just think flair shouldve retired a long time ago. he is too old.. i dont care if he can physically get in the ring and compete. he takes away from the younger guys who need to step up. thats similar to the way i feel with taker. he is main eventing with kane and id rather see guys like kingston or punk get pushed.
i see what you mean about mvp .. and i know, the change in his look wouldnt do much


text: Dan is a 35 year old computer programmer from Pittsburgh who lives a busy life. Along with balancing work, his marriage, and raising his three boys, Dan spends much of his time actively involved in all things Bitcoin. After discovering Bitcoin in 2011, his love and obsession for the crypto-currency was born, revealing an uncharted world of new possibilities for him to explore. Join us as we take a journey through the rapidly growing world of Bitcoin.


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Symphonic Band
The University of North Georgia Symphonic Band, conducted by Dr. Ashley Jarrell, is open to all qualified students by audition. The band performs many celebrated genres of music, from contemporary artists such as Eric Whitacre and Frank Ticheli to traditional pieces by Alfred Reed and Percy Grainger. The music is both challenging and musically rewarding. The UNG Symphonic Band performs both on and off campus throughout the entire academic year. Members of the band are required to participate in all rehearsals and performances and are expected to spend time outside of class perfecting and refining their musical abilities. The UNG Symphonic Band is a resident ensemble on the Gainesville Campus.


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Sure it's Saturday and everyone's out shopping and stuff, but we're here keeping an eye on things for you as always! Next up is a tidbit from Production Weekly, who confirms that the production offices for the Alan Taylor directed reboot are up and running…
…and that they have what may be the official title: Terminator: Genesis.
Set for a July 2015 release, the latest Terminator will be the fifth installment of the storied movie series, which began in 1984 as an indie distributed by Orion. Schwarzenegger starred in all but the last one, 2009's Terminator Salvation, in which he made only a digitally processed cameo.
The film's plot details have not been revealed other than this is the first installment in a stand-alone trilogy. Skydance and Annapurna will co-finance along with Paramount with David Ellison producing for Skydance and Megan Ellison producing for Annapurna. Laeta Kalogridis and Patrick Lussier penned the script, and Alan Taylor will direct.
Added prod. office info for Alan Taylor's TERMINATOR: GENESIS and the indie LILA & EVE starring Viola Davis & @JLo http://t.co/eLno1Z9OUf
— Production Weekly (@prodweek) December 7, 2013
Got news? Click here to submit it!
End it all in the comments section below


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Sony makes high-res fashionable with h.ear headphones and colour-matched WalkmanPocket-lint
Sony announced a range of devices designed to deliver high-res audio in style during its press conference at IFA 2015. There are two headphones within the h.ear range, an on-ear model and an in-ear model, as well as a new Walkman.
The range has fashion and design at the forefront, along with the high-res audio angle of course. The headphones and the Walkman come in a range of colours, with the idea being that you can match your music player to your headphones.
The h.ear on headphones are the headband style model of headphones and they are available in pink, orange, red, lime green, turquoise, red and black. They have a comfortable fit with a bold design and they look great. The colours are lovely and vibrant and it's obvious Sony has looked to add a bit of life to your head with these. They have a detachable, cross-talk reducing colour-matched cable and they also fold, which is useful when you want to carry them around.
In terms of numbers, the h.ear on headphones feature a 40mm HD driver unit that reproduces sounds up to 60kHz, accompanied by CCAW voice coils to yield high-linearity responses in high-pitched sounds. You'll also find the diaphragms coated in titanium in a bid to "provide the best sound experience".
The h.ear in NC are the in-ear model that are small and discreet as you would expect, but a little more exciting thanks to the vibrant colours. Just like the on-ear model, the in-ear headphones are comfortable and they also feature a colour matched cable, keeping the design aspect lovely and seamless from the headphones to the Walkman.
The h.ear in NC have a 9mm high sensitivity driver unit capable of reproducing frequencies up to 40kHz. They also feature battery-powered dual noise sensor technology and Sony's automatic noise cancelling feature to filter out unwanted noise for up to 16 hours after which they can be charged via Micro-USB.
Sony claims the two headphones are high-res compatible, but of course this requires you to be listening to high-res music. Although this is becoming more accessible, it is nowhere near as common as standard MP3 for example and this is where the colour-matched Walkman comes in.
The Walkman NW-A25HN/NW-A27HN is the necessary addition required to come close to listening to high-res audio. Without it, the in-ear and on-ear headphones are essentially just colourful, nicely designed headphones.
The new Walkman features software called DSEE HX that allows the device to upscale MP3 tracks into near high-res quality. We had a listen with both the in-ear model and and on-ear model and we liked what we heard, but we would need to test them in the real world to pass final judgement.
The Walkman is available in 16GB (NW-A25HN) and 64GB (NW-A27HN) capacities, both of which have microSD support for expandable storage. Sony claims it offers 50-hours battery life.
Sony's h.ear headphones and Walkman will be available in Europe from October and we were told both headphones would cost €180, but the Walkman prices haven't been detailed as yet.
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Neurology (from Greek ne_ron, neuron, "nerve" + the suffix -logia, '-logia', "study of") is a medical specialty dealing with disorders of the nervous system. To be specific, it deals with the diagnosis and treatment of all categories of disease involving the central, peripheral, and autonomic nervous systems, including their coverings, blood vessels, and all effector tissue, such as muscle. The corresponding surgical specialty is neurosurgery. A neurologist is a physician specializing in neurology and trained to investigate, or diagnose and treat neurological disorders. Neurologists may also be involved in clinical research, and clinical trials, as well as basic research and translational research. Neurology, being a branch of medicine, differs from neuroscience, which is the scientific study of the nervous system in all its aspects. A large number of neurological disorders have been described.
Contributions by 184.108.40.206, Jfdwolff, and Janbrogger.


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This organization is the premier EHR software company in the growing post-acute care niche. Growth has been catapulted to new heights due to implementation of the Affordable Care Act as well as population demographics. They're looking for a SW Manager from the Java environment experienced in the SaaS / product realm.
Software Development Manager
Our Product Development team is looking for a strong technical leader to drive strategic initiatives to help conceive, design and implement the next generation platform for the company's products.
This role requires working with Product Managers to help define requirements and timelines to implement products as well as leading multiple cross-functional development teams through design, planning and delivery. This position involves regular communication with senior management on progress, risks and change control. Ability to lead extended cross-discipline virtual teams as well as project management and executive presentation skills are essential.
The ideal candidate is a creative, demonstrated leader/manager with superior analytical abilities. This opportunity requires excellent technical, problem-solving, and communication skills. At the core of the position is planning, execution and delivery. Ideal candidates have extensive experience with product build and delivery plans, working with teams spread across different time zones and understanding the cultural differences. Ideal candidates thrive in rapidly advancing, changing, delivery-focused environments.
Candidates will have knowledge of the following: SaaS architecture, distributed software, product development, build processes, project management and release models. Candidates will have 5 or more years of relevant work experience - typically in internet-related or software application development environments.
Preferred Experience and Skills
-Bachelor's degree in Computer Science
-7 years direct experience in software development. Proven experience in overseeing the direction, development and implementation of software solutions.
-5+ years web application development experience in Java
-5+ years architect experience
-Three to five years progressive leadership experience
-Experience with Object oriented programming, MVC, Java, HTML, SaaS
-Web services API integrations
-Database experience with SQL Server. Experience with database design, querying, stored procedures, views, joins and functions.
-Independently solve complex problems, assist the team with troubleshooting issues and bugs.
-Strong analytical skills; Ability to collect, organize data; summarize findings and develop conclusions and recommendations.
-Ability to communicate at all levels of the organization, including management and end users.
-Knowledge of and exposure to "Big Data" architecture and design
Excellent communication and presentation skills.
For more information or to be considered contact me directly.
Michael Reitz
Sr. Executive Recruiter


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NO: wheat, gluten, dairy, peanuts, tree nuts, egg or soy
- 1 cup brown sugar
- 3/4 cup brown rice syrup
- 1/2 cup shortening (Spectrum)
- 1 Tbsp tapioca flour
- 1/2 tsp xanthan gum
- 1/2 cup sunflower butter (Sunbutter)
- 1 tsp vanilla
- 2 boxes (approx 6 ½ cups) Nutty Rice or Nutty Flax
- 1/4 - 1/2 cup Chocolate Chips
- Combine first five ingredients in a large pan, heat to boiling. Reduce heat to a simmer and cook one more minute stirring constantly. Remove from heat and add sunflower butter and vanilla. Beat with a spoon until blended. Add chocolate chips and Nutty Rice quickly, and stir until coated (chocolate chips will melt). Lightly grease two 11"x 7"x 1" jelly roll pans. Firmly press the mixture into the pans and cool. Cut shapes with Halloween cookie cutters and remove carefully. Decorate as desired for a deliciously, fun Halloween treat! NOTE: Use cutters with simple shapes and if they do crumble upon removal, just press them back into shape.
Nutritional Info
- Calories375
- Carbohydrates69 g(23%)
- Fat9 g(14%)
- Protein4 g(9%)
- Saturated Fat4 g(22%)
- Sodium9 mg(0%)
- Polyunsaturated Fat1 g
- Fiber0 g(1%)
- Monounsaturated Fat2 g
- Cholesterol13 mg(4%)


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boogie781 Review
I expected better quality
The chest looks nice overall, but I'm a little disappointed with the quality. The exposed screws are covered with plastic caps that don't really stay on, which makes the chest look kind of cheap. I'm also a little disappointed with the drawers. The sides and backs of the drawers are much, much shallower than the drawer fronts (by a few inches, at least), and it really limits how much can be stored in the drawers without spilling over the sides and getting caught in the drawer tracks. I've bought unassembled furniture from Overstock before that has been great, and I was expecting comparable quality. It was very easy to put together.
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