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The Meaning of YAR
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YAR means Yes.
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Flim Flam Brothers
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|This scum Flim Flam Brothers
is driving Cruella insane!
So sayeth the great Lord of Darkness Sauron:
or he will send Darth Vader to terminate you.
| ♩ Well you've got opportunity
In this very community,
Flam: He's Flim!
Flim: He's Flam!
We're the world famous Flim Flam Brothers,
Traveling salesponies nonpareil! ♩
|~ Flim and Flam singing about themselves
In the IDW comics, Flim and Flam are unseen antagonists mentioned in Micro-Series Issue #3's story How Rarity Got Her Groovy Back and also appear in Friendship is Magic Issue #10's story Zen and the Art of Gazebo Repair - Part Deux 'If You Only Have a Hammer, You See Every Problem as a Nail and Micro-Series Issue #10's story The Day Shift.
Role in Series
Their names are a play on a flimflam, otherwise known as a confidence trick or a con, which also foreshadows their role in the same episode's storyline. They drive into one of the gate of Sweet Apple Acres' apple orchard on a cider-making contraption and introduce themselves through song and dance. They challenge the Apple family to a cider-making competition against their machine, The Super Speedy Cider Squeezy 6000. With Ponyville's citizens faced with the dilemma of a limited quantity of manually pressed cider, they turn to the Flim Flam brothers and their automated cider production. The brothers attempt to broker a deal with the Apple Family, who will supply them with their delicious apples, and they will sell the cider under the Flim Flam brothers name. They call for a 75-25 split in profits in their favor.
However, it turns out all of the ponies dislike the cider the Film Flam brothers made because they decided to go for quantity over quality unlike the Apple Family. After Twilight, and the others volunteered to help the Apple Family, the brothers increased suction on their machine to speed up their production rate in order to win. This causes the machine to suck not only the apples but up whole trees and other debris such as rocks, rotten apples, and branches.
The Apple Family denies the offer, which prompts Flim to state that if the Apple Family refuses to partner up with the brothers, they will run the family out of business and Ponyville. The Flim Flam brothers challenge and provoke the Apple family into a cider-making competition, and end up winning the competition.
The brothers in panic, change the setting of the machine so it no longer preforms quality check what goes into their cider and make more barrels of cider. The end result of this action causes the cider to taste horrible and all the ponies refuse to drink it. Realizing no pony in Ponyville will pay for their cider, regardless that they won, the Flim Flam brothers decide to try the next town over, and beat a hasty retreat. This alludes to the fact that this is not the first time the brothers have been run out of a town because of their tactics (and most likely won't be their last either).
The brothers return in the season four episode Leap of Faith, this time selling a product called the "Flim Flam Miracle Curative Tonic", using a song number to hype it as a panacea able to cure any ailment and injury, and even restore youth, among other outrageous claims. The tonic appears to work on a crutch-wielding volunteer in the audience, who casts off his crutches after drinking it; and later on Granny Smith, who overcomes her crippling fear of swimming.
Suspicious of Flim and Flam, Applejack visits the brothers' tent that night and discovers that the volunteer pony, Silver Shill, is part of the brothers' act to promote the tonic. When confronted by Applejack, the two partially admit that their tonic is a useless mixture of apple juice and beet leaves. However, they point out that Granny Smith's blissful ignorance of the tonic's true nature is allowing her to relive her youth as an aquapony, and guile Applejack into silence by suggesting that she would be denying her grandmother that happiness if the truth is revealed.
The next day, Flim and Flam sell their entire stock of tonic to Granny Smith for her to perform at the Ponyville Swim Meet, while Applejack unwittingly approves of its apparent beneficial effects, boosting their credibility. They set up shop at the swimming competition, promoting Silver Shill to help sell their tonic. However, Applejack realizes the bad example her dishonesty is setting for others and, after stopping Granny Smith from performing a dangerous high diving stunt, reveals that the tonic is fake. The brothers try to save face by endorsing the tonic's placebo effects, but Silver Shill, inspired by Applejack's honesty, intervenes and further confirms the brothers' schemes. Defeated again, Flim and Flam hastily flee Ponyville before anyone notices their absence.
Flim and Flam's human versions appear in the Equestria Girls short, A Case For The Bass where they own a pawn shop and Granny Smith's human version inadvertently sold the human Applejack's bass to them. When Applejack and her friends come to the shop to retrieve it, the brothers try to con Applejack out of a fortune, but when she explains the situation to them, the twins at first are skeptical about her ownership and find the evidence that proves otherwise to be circumstantial. However, once Applejack shows her talent by playing the instrument (and magically gain pony ears and a tail) the brothers are convinced by her ownership and when the gang (minus Applejack) glare daggers at the twins when they charge the instrument for ridiculous aspects, the con artists manage to get Applejack to trade for the instrument for advertising their store (but, ironically, get the last laugh (unlike their pony versions) when they make her dress up in a banana suit, much to her displeasure.)
Flim and Flam have a cameo in the Season 5 finale, The Cutie Re-Mark Part 2. In one of the alternate timelines created by Starlight Glimmer interfering with history, the brothers have somehow conquered Equestria, turning it into a heavily industrialized nation and clearing away the forests to feed the trees into their factories' furnaces, which in turn fill the skies with smog. This timeline, along with the others, is erased when Twilight Sparkle manages to get history back on track.
Flim and Flam return in Season 6 in the episode, Viva Las Pegasus, working at a hotel. When Applejack and Fluttershy arrive to solve a friendship problem, they spot Flim and Flam after their very friendly employer and hotel owner, Gladstone, gives them a tour. Fluttershy realizes that this is the problem they need to solve, however, Applejack refuses to help them, not only because of what they did in the past, but because she claims that everyone else is better off without them together. Fluttershy soon investigates the two and realizes that they've been fighting since they were employed and that Gladstone had them and all his other two pony acts fighting each other so they would never leave, since they couldn't get along. Applejack and Fluttershy decide to get the brothers to help them expose Gladstone's deceptive ways, and by extension, solve all the friendship problems in the hotel. They confront the brothers and tell them what's really going on, only for them to dismiss their claims, stating that Gladstone is a good friend of theirs, only to remember that Applejack is the element of honesty and that she wouldn't lie to them over something this serious. Furious and reunited, the brothers decide to use one of their get rich quick schemes to bring down Gladstone. They dress Fluttershy up as a very rich pony who might like to open a hotel, wanting to know Gladstone's secret on how he keeps his travelling ponies working at his hotel, with Applejack and Flam planning to broadcast his answer over the hotel. To their surprise, Gladstone lies about his secret, claiming that friendship is why they stay, tearing off Fluttershy's wig, stating that he practically invented their con-man technique. Defeated, Applejack and Fluttershy go to his office, where he boasts about his victory, only for the two to reveal that Flim and Flam knew that he would discover their plan and boast about it, broadcasting his evil monologue over the hotel. After Gladstone is out of business, Flim and Flam immediately go back to their conman ways, taking over the hotel and tricking everybody into going in the theater, despite there no longer being any acts there.
Roles in Comics
In Friendship is Magic Issue #34, Flim and Flan are recruited by Radiant Hope to orchestrate an attack on the Crystal Empire, using their Super Speedy Cider Squeezy 6000 as a Trojan horse to smuggle changelings in. Over the course of the following issues, they are captured by the Mane Six and freed by King Sombra. By Issue #36, they begin to have second thoughts about their role in the invasion and probably fled The Crystal Empire.
In Friends Forever Issue #9, The Flim Flam Brothers seem to be dissolved, when Granny see Flim at Apple con selling apple peeler she wasn't happy and tell him where his twin is and was sure that he tried to trick her when he said he didn't talk to him since weeks. Granny walk away, then she hear Flam voice who was also apple peeler, she was sure the two were working on their tricks on pony, but Flam told her the same thing that he didn't talk to his twin since weeks.
Flim decide to go sat under a tree Granny followed him sure that he was prepare trick on ponys with his brothers, but Flim tell her that they are both falling in love with the mare named Marian, the twins fight each other to win her heart, but she ended up rejecting both of them,. So, its why the brothers didn't talk to each other, Flim said that they didn't sell together for a while, and Flim didn't want to talk to Flam anymore. After listen to both of their version, she decided to reconnected them, but they were again fighting and she break threw , telling them her story about two brothers like them, but that they never reconciled after she rejected them.
Flim and Flam see that they can be each other and decided to reconciled, each other they also hugged Granny Smith before leaving for their stand, they are seen working together , Applejack tell her Granny if she have something to do with it, she finally admit she help a little bit, when Apple Bloom ask her why after all the tricks they done to them and other ponies, Granny Smith told her that family matter folks needed help same if they are shady as The Flim Flam Brothers.
As their names imply, the Flim Flam Brothers are a duo of tricky con artists ready to swindle the pants out of any pony and they seem to have an eye for greed. They also seem to be arrogant as they gloat about their victory against the Apple family and were confident enough to allow Applejack's friends assist them in producing cider as they believe that they'll win the cider contest regardless, as Flam states that they aren't worried even if the entire Canterlot kingdom assists and this overconfidence leads to their downfall.
Another flaw of theirs, typical for a con artist, is that they flee from raging crowds when they discover the twins' trickery.
- The Flim Flam Brothers and their song are parodies of the one scene in The Music Man, when the con men were tricking River City. The Flim Flam Brothers and the Con men both wear straw hats and bow ties, they both trick an entire town, and the part in Flim Flam Brothers song, where the ponies all chant cider,cider,cider,cider etc. and in the music man the townsfolk were all chanting trouble,trouble,trouble,trouble etc. Also, at the end of the musical and this episode, Flim and Flam are both run out of town by the citizens of Ponyville, much like the con men were in the musical. However in The Music Man, the lead conman decides to stay in the town. Flim is the parody of the main conman, Professor Hill and Flam is the parody of his associate, Marcellus Washburn.
- They are the sixth recurring villains in the show, The others are: Diamond Tiana, Silver Spoon, Trixie, Discord and Ahuizotl.
- They are similar to the historical brothers, 'The Wright Brothers', with Flim as Wilbur and Flam as Orville, and they have their vocal mannerisms.
- Flim and Flam's victory in the alternate timeline is very similar to the Onceler's victory in the Lorax.
- Despite being minor villains, Flim and Flam have appeared more times than almost every other major villain of the show.


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This chrome effect night latch is ideal for securing wooden doors. Recommended for use in conjunction with another lock, such as a deadlock or Euro cylinder.
Doors are a burglar's favourite entry and exit point, so make sure your doors have good-quality locks and security devices. As your windows are also vulnerable, it's a good idea to fit them with locks that are suited to their particular style or type.
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Le Tour Hotel: Find photos, reviews, information, amenities and compare prices for 4 stars hotels in Iglesias, Italy.
Le Tour Hotel provides comfortable 4-star accommodation in Iglesias. It has a spa and a gym.
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The hotel has cosy rooms, designed to suit the requirements of any traveller.
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PRESTONSBURG – The Bluegrass Extravaganza is set for Saturday at 7 p.m. at the Mountain Arts Center. The upcoming show will feature 5-time IBMA Male Vocalist of the Year Russell Moore & IIIrd Tyme Out as well as Dove Award Winner Nathan Stanley with the Clinch Mountain Boys.
The "Prince of Bluegrass Music" Nathan Stanley is the grandson of Dr. Ralph Stanley.
"I'm very proud of my grandson Nathan," Dr. Ralph Stanley said. "He is a wonderful entertainer and a mighty fine singer. I know as long as he is around my music will never die."
Whoever purchases a copy of the new CD by Dr. Ralph Stanley & Nathan Stanley will receive a chance to win a free autographed guitar the night of the concert.
Jeff Bates, who performed during the Jenny Wiley Festival earlier in the month, also complimented Nathan Stanley.
"When Nathan Stanley sings I can't help but stop and listen to the old soul behind the young pure voice," Bates said.
Admission for the show is $26 in advance and $31 day of show.
For more information on the show, call (606) 886-2623 or visit www.macarts.com.


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MOSS LANDING (AP) - Authorities say a body found floating in the Monterey Bay by people on a whale watching tour belongs to a man reported missing.
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YOSEMITE NATIONAL PARK. (AP) - Visitors to Yosemite National Park will soon have more room to roam after officials on Wednesday announced a 400-acre expansion, the largest in nearly 70 years.
MODESTO – The Great Valley Museum is holding the 6th annual Wild Planet Day family science festival on Saturday, Sept. 24, 10 a.m. to 3 p.m. in the Science Community Center on the Modesto Junior College West Campus, 2201 Blue Gum Avenue, Modesto.
Rose turned 90 years old on Tuesday, Sept. 6.
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Jimmie Connors Post 6311 Veterans of Foreign Wars located in Manteca will be conducting their 3rd Annual Roast. This year they will be roasting Pastor Mike Dillman, founder, Not Forgotten Memorial Day Celebration and VFW Member.
LOS ANGELES (AP) - Black Lives Matter, which two years ago grew out of street protests and a social-media hashtag, has quietly established a legal partnership with a California charity in a sign of the movement's growth and expanding ambition, The Associated Press has learned.
SAN LUIS OBISPO (AP) - An FBI team prepared Tuesday to excavate a site on the edge of California Polytechnic State University, San Luis Obispo, in hope of finding the remains of a student who vanished more than 20 years ago.
LOS ANGELES (AP) - Candidate debates are usually routine events on the political calendar. But not in California's U.S. Senate contest.
VIENTIANE, Laos (AP) - President Barack Obama called off a planned meeting Tuesday with new Philippine President Rodrigo Duterte, seeking distance from a U.S. ally's leader during a diplomatic tour that's put Obama in close quarters with a cast of contentious world figures.
LOS ANGELES (AP) - In the course of a 17-year experiment on more than 1 million plants, scientists put future global warming to a real world test - growing California flowers and grasslands with extra heat, carbon dioxide and nitrogen to mimic a not-so-distant, hotter future.
FRESNO (AP) - An armed deputy and an armed correctional officer have been stationed in the lobby of the central California jail where an ex-convict opened fire and critically wounded two unarmed officers, a sheriff's spokesman said Monday.
Page 5 of 654
SANTA ANA (AP) - California voters are considering repealing a law banning most bilingual education, an idea state residents overwhelmingly endorsed almost 20 years ago.
RIVERSIDE . (AP) - A man who allegedly led Southern California authorities on a gunfire-punctuated chase was charged Friday with attempting to murder three officers.
SAN FRANCISCO (AP) - A proposition that a prosperous farmer brought to the California ballot would threaten two ambitious water and rail projects that Gov. Jerry ...
SACRAMENTO (AP) - California Democrats are looking to regain supermajorities in the state Legislature that would allow them to govern without Republicans, an endeavor that will ...
SAN DIEGO (AP) - When Alfred Olango pulled out an object from his right pocket last month and assumed a shooting stance in a strip mall ...
LOS ANGELES (AP) - A federal court judge issued a temporary restraining order banning a Southern California synagogue from carrying out a Yom Kippur-Rosh Hashanah ceremony ...
SAN FRANCISCO (AP) - Two children pulled out of the San Francisco Bay in critical condition after a recreational sailboat carrying 30 people capsized are doing ...
Page 9 of 9
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APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. SCHALLER, Judge, presiding.
Plaintiff initiated an action for personal injuries against the manufacturer and distributor of an automobile jack, alleging that the product was unreasonably dangerous. After a week long trial, the jury returned a verdict in favor of defendants, but the trial court allowed plaintiff's motion for a new trial and we granted defendants' petition for leave to appeal. *fn1
As grounds for his post-trial motion for a new trial, plaintiff alleged that following the trial, it came to his attention that one of the jurors failed to truthfully answer the court's questions during voir dire, specifically relating to whether the juror had any pending lawsuits, *fn2 and thus plaintiff was prejudiced.
The court issued a rule to show cause why the juror should not be held in contempt and conducted two hearings on the post-trial motion and the contempt proceedings. The court then discharged the rule to show cause because it was not convinced of the juror's guilt beyond a reasonable doubt and granted the motion for a new trial.
Although no court reporter was present at the voir dire proceedings, the court recalled inquiring of the jurors, its standard inquiry, whether any of the jurors had lawsuits pending or had ever sued or been sued, and that all jurors responded in the negative. During the hearing regarding the rule to show cause, the juror testified that he thought the court was referring to personal injury cases and admitted that he was a defendant in the Municipal Division in a contract action for goods and services involving $4,000, and that he was also in litigation as a defendant with a corporation of which he was the sole owner.
The juror testified that a week previous to the case at bar, he had served on another personal injury case where he was foreman and that that jury returned money damages in favor of that plaintiff. The juror then related the deliberations of the jury at bar. *fn3 He revealed that he was also selected foreman of the jury at bar. The first order of business was to determine an expression of each juror's opinion without a formal vote. The result was seven votes in favor of defendants and five in favor of plaintiff. A discussion then ensued among the jurors and some of the instructions were reviewed. The initial formal vote resulted in 11 jurors in favor of defendants and one juror expressed no preference. The jurors then embarked upon further deliberations and discussions of the instructions relating to proximate cause, whereupon the entire jury agreed upon a verdict in favor of defendants. The jury deliberated for one and one-half hours before reaching its verdict.
In Department of Public Works & Buildings v. Christensen, (1962), 25 Ill.2d 273, 184 N.E.2d 884, our Supreme Court reaffirmed the doctrine that a motion for new trial will be denied unless it is established not only that the juror answered falsely, but also that prejudice resulted. In that case, involving an eminent domain proceeding, each juror was asked whether the juror or any close relatives had dealings with the State of Illinois, or transactions with the State involving land sought to be taken by condemnation. All responded in the negative, but after the verdict it was discovered by one of the attorneys that a brother of a juror had dealings with the State of Illinois, or a department therein, regarding eminent domain proceedings. A juror, by affidavit, revealed that during deliberations the juror in question advised them that her brother had been treated fairly when the State of Illinois condemned his property and that she would vote for the lowest evaluation, and then finally agreed to break a deadlock by allowing a further nominal sum as damages. Another juror, by affidavit, revealed that the juror in question did not adversely effect the verdict and that it was based upon the jury's consideration of all the evidence. Our Supreme Court affirmed the denial of plaintiff's motion for a new trial, finding no prejudice resulted from the failure of the juror to truthfully reveal that a close relative had had dealings with the State of Illinois regarding eminent domain proceedings.
In Maher v. New York, Chicago & St. Louis R.R. Co. (1937), 290 Ill. App. 267, 8 N.E.2d 512, the foreman falsely denied that no member of his family or he had ever been involved in a personal injury case or that he had ever been sued. After the trial it was discovered that that juror had in fact been in several accidents wherein personal injuries were alleged. This court affirmed the denial of defendant's motion for a new trial.
In Kuzminski v. Waser (1942), 314 Ill. App. 438, 41 N.E.2d 1008, defendants appealed from an order denying their motion for a new trial in favor of plaintiff. There also it was discovered that a juror falsely denied that she or any member of her family had been interested in a personal injury suit. In that case, the trial court also conducted a hearing involving the deliberations of that jury, which revealed that the first ballot unanimously found for plaintiff, but considerable time was devoted to ascertaining the amount of damages. Language in Kuzminski, apropos to the case at bar, is as follows:
"The instant case was well tried and the absence of errors in the record that are usually assigned in cases of this character has forced counsel for defendants to place undue importance upon the conduct of juror Young." 314 Ill. App. 438, 448.
In view of the prevailing authority on the issue at bar and the facts herein, we too fail to perceive the requisite prejudice that would justify the granting of a new trial. The record fails to reflect any prejudice relating to the substantive merits of the case. On the contrary, following the verdict the trial court judge visited the jury room and inquired as to the reason for the verdict in favor of defendants. He was advised that the case appeared to be decided on the proximate cause issue. The trial court then made the observation that the jury was very perceptive and that the court would have decided the case in the same way.
Procedurally, in granting plaintiff's motion for a new trial the court specifically found:
"THE COURT: That trial was fairly tried by both counsel and it was the cleanest trial I had in five years. Other than this one matter of the juror, I would have summarily not have done that, it is on this basis only."
We find that the trial court abused its discretion in granting plaintiff's motion for a new trial on this basis. The order granting a new trial is hereby reversed.
DOWNING and JIGANTI, JJ., concur.
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This was pretty much standard for this quality of hotel and for the price. It met the majority of our basic needs, but the wifi could have been better. We were right next to the main office and still had a crappy wifi signal. Sadly, I spent most of my data at the hotel on this 7 day trip. They...
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Customer Reviews (showing 1 - 3 of 3)2 of 2 magicians found the following review helpful:
Don't get too excited Report this review
Verified buyer Pro Privacy ON (login to see reviewer names) on June 10th, 2010
Basically he does not explain every technique
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United States District Court, Seventh Circuit
June 13, 2013
ARTHUR CABELLERO, Plaintiff,v.LAURA M. TAYLOR, Defendant.
SHARON JOHNSON COLEMAN, District Judge.
Plaintiff Arthur Cabellero's ("Cabellero") filed suit against defendant Laura M. Taylor ("Taylor") alleging that she violated his constitutional rights by forcing him to sign an Illinois Sex Offender Registration Act Notification Form under duress. Taylor moves to dismiss Cabellero's complaint for improper venue or, in the alternative, to transfer the case for the convenience of parties. For the following reasons, Taylor's motion is denied.
In 1999, plaintiff Cabellero was convicted of attempted murder and sentenced to twenty-one years in the Illinois Department of Corrections. Cabellero served part of his sentence with the Illinois River Correctional Facility ("Illinois River") located in the County of Fulton, Illinois. Cabellero had a difficult time during his stay at Illinois River, frequently getting into fights with fellow inmates and verbal altercations with Illinois River guards.
In March 2009, Cabellero was released on parole. However, not long after his release, Cabellero was arrested again for Driving Under the Influence and was re-incarcerated for violating the terms of his parole. Although Cabellero's second stay at Illinois River was better than his first, he continued to get into altercations. On January 28, 2011 Cabellero was to be released again from Illinois River. Defendant Taylor was responsible for interviewing him and preparing the necessary paperwork for his release. Cabellero alleges that Taylor intentionally and maliciously forced him to sign an Illinois Sex Offender Registration Act Notification Form, knowing that he had not been convicted of any sex related offenses. Cabellero alleges that Taylor forced him to sign the form under duress and threatened that he would not be released unless he signed the form. Cabellero signed the form and was later registered as a sex offender when he returned home in the Northern District of Illinois ("Northern District"). Subsequently, Cabellero hired an attorney to assist him in getting his name removed from the Illinois Sex Offender List. The attorney successfully had his name removed.
Cabellero alleges that he suffered emotional distress and that his registration as a sex offender effected his employment opportunities. Cabellero alleges further that evidence of him being registered as a sex offender was used against his fiance in determining custody of her son. Cabellero brings forth this instant action arguing that Taylor violated his constitutional rights in violation of 42 U.S.C. § 1983. Taylor moves to dismiss Cabellero's complaint for improper venue or, in the alternative, to transfer the case to the Central District of Illinois ("Central District").
Legal Standard
Initially, Taylor moves to dismiss Cabellero's complaint for improper venue. Rule 12(b)(3) allows a party to move for dismissal of an action when it is not filed in the proper venue. Fed.R.Civ.P. 12(b)(3). The plaintiff bears the burden of establishing that venue is proper. Marzano v. Proficio Mortg. Ventures, LLC, No. 12 C 7696, 2013 U.S. Dist. LEXIS 60108, at *8-9 (N.D. Ill. Apr. 25, 2013). When ruling on a Rule 12(b)(3) motion to dismiss, the Court resolves all factual disputes and draws all reasonable inferences in the plaintiff's favor. Nagel v. ADM Investor Servs., 995 F.Supp. 837, 843 (N.D. Ill. 1998). When venue is improper, the Court "shall dismiss [the case], or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a).
In the alternative, Taylor moves to transfer Cabellero's case to the Central District. 28 U.S.C. § 1404(a) provides "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." The court may transfer venue when "(1) venue is proper in both the transferor and transferee court; (2) transfer is for the convenience of the parties and witnesses; and (3) transfer is in the interests of justice." Clear Lam Packaging, Inc. v. Rock-Tenn Co., No. 02 C 7491, 2003 U.S. Dist. LEXIS 14691, at *10 (N.D. Ill. Aug. 22, 2003).
Taylor first moves to dismiss Cabellero's complaint for improper venue pursuant to 28 U.S.C. § 1406(a) and 28 U.S.C. § 1391(b). Pursuant to 28 U.S.C. § 1391(b), a civil action may be brought in: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. 28 U.S.C. § 1406(a) entitles the court to dismiss or transfer a case filed in an improper venue.
The parties dispute whether venue is proper pursuant to 28 U.S.C. § 1391(b)(2). In her motion to dismiss Taylor argues that venue is improper pursuant to § 1391(b)(2) because none of the events giving rise to Cabellero's claims occurred in the Northern District. Cabellero argues that venue here is proper because all the events concerning the publishing of the sex offender information and alleged damages occurred here in the Northern District.
For venue to be proper under § 1391(b)(2), only a "substantial, " not a majority, part of the events giving rise to the claim need occur in the venue. See Caldera Pharms., Inc. v. Los Alamos Nat'l Sec., LLC, 844 F.Supp.2d 926 (N.D. Ill. 2012). "If the selected district's contacts are substantial, ' it should make no difference that another's are more so, or the most so." Id. Furthermore, § 1391(a)(2) may be satisfied "by a communication transmitted to or from the district in which the cause of action was filed, given a sufficient relationship between the communication and the cause of action." Id. (internal quotations omitted).
The publishing of the sex offender information in the Northern District of Illinois constitutes a substantial contact between this district and Cabellero's cause of action for purposes of venue. Cabellero alleges that his constitutional rights were violated when Taylor intentionally forced him to improperly sign an Illinois Sex Offender Registration Act Notification Form under duress. While the document was physically signed in the Central District of Illinois, the actual publication and its effects were in the Northern District of Illinois. The majority of events giving rise to Cabellero's claims need not occur here, only a substantial part is sufficient for venue to properly lie within this district. Therefore, venue here is proper.
Next, Taylor argues that Cabellero's complaint should be transferred to the Central District of Illinois pursuant to 28 U.S.C. § 1404(a). 28 U.S.C. § 1404(a) provides "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." The court may transfer venue when "(1) venue is proper in both the transferor and transferee court; (2) transfer is for the convenience of the parties and witnesses; and (3) transfer is in the interests of justice." Clear Lam, 2003 U.S. Dist. LEXIS 14691, at *10; see also Coffey v. Van Dorn Iron Works, 796 F.2d 217, 220 (7th Cir. 1986). The parties dispute whether transfer would be convenient for the parties and witnesses and in the interests of justice. When evaluating the convenience of the parties and witnesses, courts consider: (1) the plaintiff's choice of forum, (2) the situs of the material events, (3) the relative ease and access to sources of proof, (4) the convenience to the parties, and (5) the convenience of the witnesses. Clear Lam, 2003 U.S. Dist. LEXIS 14691, at *11.
First, the plaintiff has chosen his home forum, the Northern District of Illinois, which is typically entitled to substantial weight and deference. See Plotkin v. IP Axess, Inc., 168 F.Supp.2d 899, 902 (N.D. Ill. 2001); see also Clerides v. Boeing Co., 534 F.3d 623, 628 (7th Cir. 2008). Taylor is correct that this deference is lessened where a plaintiff chooses a forum that has little connection with the relevant facts giving rise to the litigation. See Body Sci. LLC v. Boston Sci. Corp., 846 F.Supp.2d 980, 992-993 (N.D. Ill. 2012). However, as stated above, Cabellero's complaint is substantially related to the Northern District of Illinois as the Illinois Sex Offender Registration Act Notification Form was published here and Cabellero suffered the consequences of its publication here. Therefore, this factor weighs against transfer.
Second, the situs of material events factor is neutral. Although the alleged constitutional violation of forcing Cabellero to sign the registration form under duress took place in the Central District, Cabellero lives and suffered the effects of the registration form publication in the Northern District. There is some authority in this district for determining that venue is proper in the location in which a plaintiff felt the effects of a decision made in another district. Digan v. Euro-American Brands, LLC, No. 10-cv-799, 2010 U.S. Dist. LEXIS 86751, at *10 (N.D. Ill. Aug. 19, 2010). Because the situs of material events is not concentrated in either venue, this factor is neutral.
Third, because documentary and digital evidence "is readily transferable and transporting it generally does not pose a high burden upon either party, " the relative ease of access to sources of proof is also neutral. Cont'l Cas. Co. v. Staffing Concepts, Inc., No. 06 C 5473, 2009 U.S. Dist. LEXIS 86370, at *5 (N.D. Ill. Sept. 18, 2009) (citations omitted). The defendant concedes that "this element may not be highly relevant with the current state of technology, " yet argues that "to the extent the Court looks to this element" it weighs in favor of transfer. (Dkt. 9, Def.'s MTD at 5.) However, "an assertion that most of the documentary evidence exists in one location, in and of itself, is insufficient to tip the balance in favor of transfer to that location." Cont'l Cas. Co., 2009 U.S. Dist. LEXIS 86370, at *14. Therefore, this factor is neutral.
Fourth, "in analyzing the convenience of the parties, the Court must consider their respective residence and abilities to bear the expense of trial in a particular forum." First Horizon Pharm. Corp. v. Breckenridge Pharm., Inc., No. 04 C 2728, 2004 U.S. Dist. LEXIS 13871, at *12 (N.D. Ill. July 20, 2004). This factor here is neutral as Taylor, a resident located in the Central District, and Cabellero located in the Northern District, would each be equally burdened if the case were not filed in their respective home districts. The parties do not cite to any difficulties they would face in bearing the expense for trial in a particular forum.
As for the convenience of witnesses, Taylor argues that any non-party witnesses, such as keepers of records or employees at the prison, are all located in the Central District. Cabellero argues that his material witnesses including the lawyer he hired to remove his name from the Illinois Sex Offender List, his mother, and his fiance are all located in the Northern District. The determination of the convenience of witnesses is often considered the most important factor in the transfer balance. First Horizon Pharm. Corp., 2004 U.S. Dist. LEXIS 13871, at *12-13. In assessing the convenience of the witnesses, courts consider the "number of witnesses in each forum; the nature, quality, and importance of the witnesses' testimony with respect to the issues of the case; the expense of transportation and the length of time the witnesses will be absent from their jobs; and whether the witnesses can be compelled to testify." Kammin v. Smartpros, Ltd., No. 07 C 2665, 2007 U.S. Dist. LEXIS 75914, at *5-6 (N.D. Ill. Oct. 9, 2007) (internal quotations omitted). In order to prevail on this factor, Taylor must specify the key witnesses to be called and make a generalized statement of their testimony. Corvenga v. Spectra Med., No. 12 C 4846, 2012 U.S. Dist. LEXIS 154541, at *9 (N.D. Ill. Oct. 29, 2012). Taylor "cannot meet [her] burden with only vague statements about the inconvenience imposed by the litigation on non-party witnesses." Humphries v. Coppercrest Leveraged Mortg. Fund, No. 10-cv-7756, 2012 U.S. Dist. LEXIS 19543, at *2 (N.D. Ill. Feb. 15, 2012). Taylor identifies three potential Illinois Department of Corrections employees as witnesses, but provides no specific details as to the relevancy of their testimony. Cabellero also identifies three witnesses located in the Northern District. Because a transfer motion will not be granted when it would merely shift inconvenience from one party to another, this factor weighs against transfer. Bank of Am., N.A. v. Illumination Station, Inc., No. 10 C 3061, 2011 U.S. Dist. LEXIS 46734, at *13 (N.D. Ill. May 2, 2011).
Lastly, transfer must be in the interests of justice. The interest of justice analysis relates to the efficient functioning of the courts and may be determinative in a particular case, even if the convenience of the parties and witnesses might call for a different result. See Clear Lam, 2003 U.S. Dist. LEXIS 14691, at *9-13. Factors to consider include "the court's familiarity with the applicable law, the speed at which the case will proceed to trial, and the desirability of resolving controversies in their locale." See Rabbit Tanaka Corp. USA v. Paradies Shops, Inc., 598 F.Supp.2d 836, 841 (N.D. Ill. 2009). Taylor proffers no compelling reasons why transfer would be in the interest of justice. This factor, therefore weighs against transfer.
For the foregoing reasons, the defendant's motion to dismiss for improper venue or to transfer for the convenience of parties is denied.
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October 30, 2012
JUANA MUNOZv.ATLANTIC EXPRESS OF L.A., INC., ET AL.
E-Filed - JS-6
Beatrice Herrera N/A N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
None None
Proceedings: (In Chambers) Order re: Plaintiff's Motion to Remand and for Attorney's Fees and Costs (Dkt. No. 16).
This matter is before us on Plaintiff Juana Munoz's ("Plaintiff") Motion to Remand and for Attorney's Fees and Costs ("Motion"). We have considered the papers filed in support of and in opposition to the Motion, and deem this matter appropriate for resolution without oral argument. L.R. 7-15. As the Parties are familiar with the facts, we repeat them only as necessary. Accordingly, we rule as follows.
On June 8, 2012, Plaintiff filed this wage and hour class action in state court against her former employer, Defendants Atlantic Express of L.A., Inc. and Atlantic Express of California, Inc. (collectively, "Defendants"). Plaintiff alleges that Defendants failed to pay her and other bus drivers for all hours worked, including overtime wages earned, "by requiring them to perform certain tasks off-the-clock." (Compl. ¶ 1). Plaintiff alleges that such tasks include certain pre- and post-trip activities such as obtaining a tachometer to install on the bus, conducting a visual inspection of the bus prior to installing the tachometer, and completing driver logs. (Id. ¶ 17). Plaintiff further alleges that Defendants failed to provide her and other class members with rest periods as required by California id. ¶¶ 1, 18), to pay the required minimum wage for all hours they worked, to provide them with all wages due upon termination or resignation, and to provide them with accurate wage statements, (id. ¶
Based on these allegations, Plaintiff asserts the following six claims: (1) violation of California Labor Code sections 216, 1194, 1194.2, and 1197 (failure to pay compensation for all hours worked and minimum wage violations); (2) violation of Labor Code section 1194 (failure to pay overtime compensation); (3) violation of Labor Code sections 226.7 and 512 (failure to pay rest period compensation); (4) violation of Labor Code section 203 (waiting time penalties); (5) violation of Labor Code section 226 (failure to provide accurate itemized statements); and (6) violation of California Business and Professions Code sections 17200, et seq.
On July 13, 2012, Defendants removed this action to this Court pursuant to the doctrine of complete preemption under the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. The terms of Plaintiff and other class members' employment were governed by a Collective Bargaining Agreement ("CBA") between Atlantic Express of L.A., Inc. and Teamsters Local 572. On September 19, 2012, Plaintiff filed the instant Motion to remand this action to state court.
Legal Standard
Typically, a plaintiff is considered the master of her complaint, and thus "[t]he presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar v. Williams, 482 U.S. 386, 392 (1987). Where a defendant raises preemption as a defense to a plaintiff's claims, preemption typically cannot provide the basis for subject matter jurisdiction. See id. at 392-93. Under the doctrine of complete preemption, however, "the pre-emptive force of a statute is so 'extraordinary' that it 'converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.' Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal
Id. at 393 (citation omitted) (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)).
LMRA § 301 governs lawsuits alleging breach of a CBA and states that such lawsuits "may be brought in any district court of the United States having jurisdiction of the parties, without respect of the amount in controversy or without regard to the citizenship of the parties." 29 U.S.C. § 185. Section 301 has been construed to have complete preemptive force. As a result, any state cause of action for breach of a CBA is entirely displaced by § 301 and is considered to be an LMRA claim. "This is true even in some instances in which the plaintiffs have not alleged a breach of contract in their complaint, if the plaintiffs' claim is either grounded in the provisions of the labor contract or requires interpretation of it." Burnside v. Kiewit Pacific Corp., 491 F.3d 1053, 1059 (9th Cir. 2007).
Determining whether § 301 completely preempts a state claim involves a two-step process. First, we must determine "whether the asserted cause of action involves a right conferred upon an employee by virtue of state law" or by the CBA. Id. If the right is conferred solely by the CBA, then the claim is completely preempted. If the right at issue "exists independently of the CBA, we must still consider whether it is nevertheless 'substantially dependent on analysis of a collective bargaining agreement.'" Id. (quoting Caterpillar, 482 U.S. at 394). If the state claim is not dependent on the CBA, then the plaintiff can continue to assert it. "The demarcation between preempted claims and those that survive § 301's reach is not, however, a line that lends itself to analytical precision." Cramer v. Consolidated Freightways, 255 F.3d 683, 691 (9th Cir. 2001). To make this task simpler, courts have held that when a court would merely have to "look to" or "consult" the CBA during litigation of the state claim, no preemption exists. But, if adjudicating the state claim would require the court to "interpret" the CBA, the state claim is completely preempted. See Livadas v. Bradshaw, 512 U.S. 107, 125 (1994); Burnside, 491 F.3d at 1060.
Removal is generally disfavored -- indeed, there is a "strong presumption" against removal, and a "defendant always has the burden of establishing that removal is proper." Gaus v. Miles, 980 F.2d 564, 566 (1992). This presumption is particularly compelling in the context of complete preemption. If we find that Plaintiff's claims are completely preempted, that does not merely vest us with jurisdiction over the action -- it extinguishes Plaintiff's preempted state law claims and means that Plaintiff can only assert a § 301 claim. The Supreme "Court has repeatedly repudiated the idea that the mere ability of unionized workers to bargain collectively somehow makes it permissible to give unionized employees fewer minimum labor-standards protections under state law than other employees." Burnside, 491 F.3d at 1068. Thus, we take seriously our duty to determine whether Plaintiff's claims require interpretation of the CBA and will not lightly find that they are completely preempted.
A. Whether Plaintiff's Claims Inhere in State Law
"[T]o determine whether a particular right inheres in state law or, instead, is grounded in a CBA," we "consider the legal character of a claim, as independent of rights under the collective-bargaining agreement and not whether a grievance arising from precisely the same set of facts could be pursued." Burnside, 491 F.3d at 1059-60 (internal quotation and alteration omitted). Moreover, "reliance on the CBA as an aspect of a defense is not enough to inject a federal question into an action that asserts what is plainly a state-law claim." Id. at 1060 (internal quotation and alteration omitted).
Here, Plaintiff asserts six claims, the first five involve Defendants' alleged violations of the California Labor Code and the last claim involves an alleged violation of the UCL based on the Labor Code violations. The Complaint makes no reference to the CBA and does not attempt to enforce any aspects of the CBA. The rights involved in Plaintiff's claims -- the right to overtime, rest periods, and accurate wage statements -- are conferred by virtue of state law.
Defendants argue that Plaintiff's unpaid wage claim -- based on the alleged non-payment of wages for certain pre- and post-trip activities -- and rest period claim are subject to complete preemption because Article 17 of the CBA specifically "addresses [Plaintiff's] rights and responsibilities concerning . . . pre- and post-trip activities and . . . breaks." (Opp'n 2). Thus, Defendants argue, Plaintiff is "actually claiming a breach of contract (i.e. the CBA) by [Defendants'] alleged failure to pay her for pre- and/or post-trip activities and failure to provide adequate breaks," (Id. at 8-9), such that "these rights are granted under the CBA," (Id. at 8). This argument is unconvincing because the mere fact that a CBA touches upon the same subject matter as state law does not mean that the rights involved are necessarily conferred by the CBA. See Balcorta v. Twentieth Century-Fox Film Corp., 208 F. 3d 1102, 1110-11 (9th Cir. 2000) (finding that even though the CBA "contain[ed] a paragraph that set[] forth time requirements governing the payment of wages after discharge," the question of whether a payment after discharge was timely "[was] controlled only by [section 201.5 of the Labor Code] and [did] not turn on whether the payment was timely under the provisions of the collective bargaining agreement"); Meyer v. Irwin Indus., Inc., 723 F. Supp. 2d 1237, 1244 (C.D. Cal. 2010) (finding that where the plaintiff alleged that the employer failed to provide second meal period pursuant to section 512(a) of the Labor Code, "that the CBA include[d] terms that entitle[d] employees to second meal periods [was] of no import").
Defendants also argue at length that the CBA "actually grants [Plaintiff] and her fellow drivers extra rights that are above and beyond that which they are entitled to under state law," and that "by creating all the [] rights and responsibilities [under the CBA], [Defendants are] not requiring the employees to waive their right to pay for break times or pre-/post-trip activities or attempting to contract for something illegal under state law." (Opp'n 10-11). This is clearly a defensive use of the CBA against Plaintiff's allegations that Defendants have violated state law. As such, it is "not enough to inject a federal question into an action that asserts what is plainly a state-law claim." Burnside, 491
F.3d at 1060.
Accordingly, we conclude that Plaintiff's claims inhere in state law.
B. Whether Plaintiff's Claims Are Dependent on Interpretation of the CBA
In this case, Plaintiff asserts an unpaid wage claim based on her allegation that Defendants required her and other class members to perform certain pre- and post-trip activities off the clock. (Compl. ¶¶ 1, 17). Additionally, she asserts a rest period claim based on her allegation that she and other class members were not provided the "ten-minute rest period for shifts in excess of three and one-half hours as required by law." (Id ¶¶ 32-33).
Resolution of these claims does not require us to interpret the CBA. Under the California Labor Code, employees have a non-waivable, non-negotiable right to compensation for all hours worked. See Cal. Labor Code § 1194(a) ("Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit."). Under Wage Order 9-2001, which regulates wages and hours in the transportation industry, employees whose total daily work time exceeds three and a half hours are entitled to rest periods "at the rate of ten (10) minutes . . . per four (4) hours or major fraction thereof." Id. § 12. Thus, the relevant state statutes and regulations govern whether a violation has occurred.
Defendants argue that interpretation of the CBA is required because Article 17 specifically provides that, as to the unpaid wage claim, covered employees are entitled to a presumption of twenty-minutes pay for pre- and post-trip activities, and that, as to the rest period claim, covered employees are entitled to a thirty-minute lunch period at minimum. (Opp'n 12). However, because Plaintiff is asserting violations of state law and is not seeking to enforce the terms of the CBA, "it is irrelevant that the CBA provides for similar claims under its own terms because the state law claims can be resolved without interpreting the CBA." Meyer, 723 F. Supp. 2d at 1244.
Accordingly, we conclude that Plaintiff's claims are not dependent on interpretation of the CBA.
C. Whether CBA's Grievance Procedure and Arbitration Provision Implicate LMRA Preemption
Finally, Defendants argue that CBA's grievance procedure, including the arbitration clause, implicates LMRA preemption. This argument is unavailing because in order for a grievance or arbitration provision to implicate preemption, the "union-negotiated waiver of employees' statutory right to a judicial forum" must be "clear and unmistakable." Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 80-81 (1998). In Wright, a CBA that purported to "cover all matters affecting wages, hours, and other terms and conditions of employment" did not contain a clear and unmistakable waiver of the covered employees' rights to a judicial forum to assert discrimination claims under the ADA. Id.;
Martinez v. J. Fletcher Creamer & Son, Inc., 2010 WL 335937, *3 (C.D. Cal. Aug. 13, 2010) (concluding that the plaintiff "was not required to file a grievance under the CBA to pursue his statutory claims," given that "the CBA [did] not directly reference the [relevant federal and state wage and hour] statutes at issue, . . . [such that it] [did] not 'clearly and unmistakably' waive Plaintiff's rights under those statutes").
Here, the CBA provides that "[t]he grievance procedure provided herein shall be the sole and exclusive remedy for an alleged grievance under this Agreement and the result achieved through the application of this procedure shall resolve a grievance for all purposes." (Dkt. No. 16-1, Ex. 2, at 19) (emphasis added). Thus, because the CBA expressly limits the application of the grievance procedure to grievances relating to the CBA, it does not, by its terms, subject Plaintiff's claims under state law to said procedure. Accordingly, we find that the CBA does not "clearly and unmistakably" require Plaintiff to file a grievance pursuant to the CBA to pursue her state law claims. As such, the grievance provision does not implicate LMRA preemption.
Moreover, even if Plaintiff's claims may be subject to the grievance procedure, this argument constitutes a defensive use of the CBA, which, under clearly established law, cannot create a federal question. See Meyer, 723 F. Supp. 2d at 1246-47 (concluding that the arbitration clause in the CBA did not implicate LMRA preemption because the clause "relates only to Defendant's asserted defenses and does not clearly or unmistakably interpret Plaintiff's state law claims or require arbitration of Plaintiff's state law claims.").
D. Plaintiff's Request for Attorney's Fees
Under 28 U.S.C. § 1447(c), "an order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." "Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Plaintiff's counsel requests that we award $19,500 to him in attorney's fees, based on the
32.5 hours he spent in attempting to remand this case at a rate of $600 per hour. While we agree that Defendants' arguments, in light of the relevant authorities, shall not prevail, they are not beyond the outer bounds of objective reasonableness. In our discretion, we find and conclude that an award of fees and costs is not warranted in this case.
In light of the foregoing, we conclude that Plaintiff's claims are not completely preempted by the LMRA. Accordingly, we do not have subject matter jurisdiction over this action and hereby REMAND this case to the state court from which it was removed.
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Our Mission
The Mission of the MLK Health Center & Pharmacy is to extend comprehensive primary healthcare and pharmacy services at no cost to uninsured patients with chronic illness who otherwise often forgo routine medical care because of a lack of resources.
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Discussion in 'iOS Themes and Customization' started by Longi94, Jul 27, 2009.
Is it possible to make a custom background for spotlight search (not Wallpaper)?
If you wanted to get complicated, yes.
Make a Wallpaper.png of the Spotlight background.
and do Page0.png - PageX.png (X being a variable), for your wallpaper that is NOT for spotlight.
Maybe try Page -1?
source: http://www.saurik.com/id/9
try page0.png or page1.png
In what file are Wallpapers?
I used iFunBox.
They're talking about in a theme folder, var/stash/Themes/(Theme Folder)/Page0.png
I'm fairly certain that Page 0 counts for the first actual page of icons.
Okay... in where?
I have been trying to do this stuff awhile.
I want to change Wallpaper and Lockscreen backgrounds, a lot.
Do I also have to change permissions?
It is hit-and-miss, for me.
This is what I see:
1. In Raw File System > var > stash > Wallpaper.3ewhGU
I have everything repeated I have in
In Raw File System > Library > Wallpaper
I have .pgn thumbnail.png (repeat) and poster.thumbnail.png
2. In Raw File System > var > stash > Themes.gDD3vf
I have everything repeated I have in
Raw File System > Library > Themes >
For example:
In Ancient System.theme:
In AnyCity Live Weather.theme
there is a folder: Cities
I named a Background (a town near me).png
I changed Wallpaper.html
Wallpaper.js and
In Tweety.theme
there is a folder: Walls
1.png 2.png 3.png 4.png 5.png
...Tweety.theme, only, has 1.png 2.png 3.png 4.png 5.png
In Polaroid.theme
I have Wallpaper.png
there is the folder: Exception
I also want to have a "panorama.png" span several Wallpaper "pages" in Polaroid.theme
Well...I tried it and that doesn't work. As I said earlier Page0 counts as the first page of actual icons. And a Winterboard update would be required to be able to change the background.
Why don't you just name your spotlight background to Wallpaper.png and the other pages can be named Page0-12.png
cuz i sad "not wallpaper"... I want to use another imaget for the wallpaper.
Separate names with a comma.