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November 5, 2009
CONCEPTUALIZATION GIBBS, #97-A-4719, PLAINTIFF,v.C.O. THOMAS WICHTOWSKI, ET AL., DEFENDANTS.
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #28.
Plaintiff filed this pro se action on or about September 17, 2003 seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #1. Plaintiff alleges that while an inmate at the Elmira Correctional Facility ("Elmira"), his rights pursuant to the Eighth and Fourteenth Amendments to the United States Constitution were violated.*fn1 Id. Currently before the Court is plaintiff's motion for summary judgment*fn2 (Dkt. #42) and defendants' cross-motion for summary judgment (dismissal of defendants Goord, Leclaire and McGinnis) (Dkt. #59). For the following reasons, plaintiff's motion for summary judgment is denied and defendants' cross-motion for summary judgment (dismissal of defendants Goord, Leclaire and McGinnis) is granted.
Plaintiff's Complaint
Plaintiff, proceeding pro se, filed this action on or about September 17, 2003, against defendants Thomas A. Wichtowski, William Witkowski, Maurizio Perfetti, David J. Makara, Gregory A. Harvey, Floyd Fuller, S. Wenderlick, Donald Selsky, M. McGinnis, S. West, Lucien J. Leclaire, Glenn S. Goord, Richard W. Rich, Jr. and James A. Kain pursuant to 42 U.S.C. § 1983, seeking compensatory and punitive damages. Dkt. #1.
In his First Claim, plaintiff alleges that he was assaulted and beaten by defendants Wichtowski, Witkowski, Perfetti, Makara, and Harvey on October 31, 2002, and that defendant Fuller did nothing to stop or intercede. Id. Specifically, plaintiff alleges that on October 31, 2002, he was given the wrong breakfast and that he had experienced this problem repeatedly. Id. Plaintiff further alleges that he told defendants Perfetti and Witkowski that he had received the wrong breakfast and they responded "so" and tried to walk away from plaintiff's cell. Id. Plaintiff put his hand in the feed-up hatch in an effort to get the defendants to call the sergeant so that the sergeant would ensure that plaintiff would receive the correct diet. Id. Plaintiff alleges that as he had his hand in the feed-up hatch, M. Perfetti malicious [sic] and sadistically closed the feed-up hatch on plaintiff's hand numerous times as W. Witkowski started malicious [sic] and sadistically hitting plaintiff's hand with his baton [what is violate to "D.O.C.S." Rules [sic] ] causing multipe [sic] bruise [sic], black and blues, swelling, bleeding and plaintiff couldn't move his hand for about 6-weeks without feeling pain in his hand.
Dkt. #1, ¶ 4. Thereafter, plaintiff alleges that defendant Perfetti went to his cell and asked if plaintiff wanted to see the nurse and when plaintiff indicated that he did, defendants Wichtowski, Witkowski, Perfetti, Makara and Harvey assaulted him. Id. at ¶¶ 4-5. Plaintiff further alleges that he was hand-cuffed and as he was being moved back into his cell he was kicked in the face and hit in the head by defendant Harvey causing swelling and causing him to blackout. Id. at ¶ 7. In addition, plaintiff maintains that while defendant Makara held plaintiff's hands away from his body, the other defendants, Wichtowski, Witkowski, Perfetti and Harvey, maliciously and sadistically beat plaintiff in the face, head, upper body, back and legs. Id. at ¶¶ 8-12. The balance of plaintiff's First Claim alleges that defendants S. Wenderlick and D. Selsky denied him due process when defendant Wenderlick refused to call plaintiff's witnesses during a subsequent disciplinary hearing and sentenced him to 24 months in the Special Housing Unit ("SHU"), loss of good time and a restricted diet in violation of Departmental rules and when defendant Selsky upheld the disciplinary finding and sentence. Id. As noted above in footnote 1, by Decision and Order filed April 12, 2004, United States District Judge William M. Skretny dismissed plaintiff's due process claims (First Claim) against defendants Wenderlick and Selsky. Dkt. #4. Accordingly, those claims are not before this Court.
In his Second Claim, plaintiff alleges that he was sentenced to 270 days in the SHU and a restricted diet following a disciplinary hearing that was held in relation to May 30, 2001 disciplinary charges. Dkt. #1. Plaintiff further claims that he was found guilty despite a videotape that showed that he did not assault a Correctional Officer as charged and that Departmental rules prohibit a sentence of SHU and a restricted diet for an assault. Id. Plaintiff alleges that he wrote to defendants West, McGinnis, Goord and Leclaire complaining about the sentence imposed. Id. With respect to plaintiff's Second Claim, to the extent that it could be construed to allege an Eighth Amendment claim against defendants West, McGinnis, Goord and Leclaire, Judge Skretny ordered that plaintiff's claim be dismissed. Moreover, Judge Skretny ordered "the remaining claims alleged in the Second Claim for Relief relating to the disciplinary hearing and the sentenced imposed may, at this time, proceed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(I) and 1915A(b) against Defendants West*fn3, McGinnis, Goord and Leclaire." Dkt. #4, pp.7-8.
Finally, Judge Skretny dismissed plaintiff's Third Claim in its entirety because the defendants therein, plaintiff's criminal defense attorney, Richard W. Rich, Jr., at his January 2001 criminal trial and James A. Kain, an investigator for the Chemung County Public Defender's Office, "are not state actors for purposes of liability under 42 U.S.C. § 1983." Dkt. #4, p.8.
Procedural Background
In support of his motion for summary judgment, the plaintiff argues that a default judgment should be entered because the defendants did not answer the complaint in a timely manner. Dkt. #43. Notwithstanding plaintiff's assertion that the defendants failed to timely answer the complaint, on July 9, 2004, defendants, Goord, Wichtowski, Witkowski, Harvey, Fuller and McGinnis, moved for an extension of time to answer the complaint to on or before August 20, 2004. Dkt. #5. Thereafter, on August 17, 2004, defendants, Goord, Wichtowski, Witkowski, Perfetti, Harvey, Fuller, McGinnis and Leclaire, filed their answer to the complaint. Dkt. #14. As noted above in footnote 3, defendant West was never properly served with a copy of the complaint and has never appeared in this action. Finally, with respect to defendant Makara, defendant Makara received a copy of the complaint by mail on July 5, 2004. Dkt. #62, ¶ 5. Due to an administrative error, however, defendant Makara did not request representation from the Attorney General's Office until late August 2004, at which time an answer to the complaint was immediately filed on his behalf on August 30, 2004. Id.; Dkt. #24.
Thus, defendants argue that the sole defendant for which there is even a colorable basis to seek a default judgment is defendant Makara. However, the defendants maintain that because defendant Makara acknowledged service by mail, there was never any basis to conclude that he had any intention of not defending the lawsuit. Dkt. #62, ¶ 6. Indeed, the delay in answering the complaint was a mistake in failing to timely request representation from the Attorney General's Office. Id. In his motion for summary judgment, wherein he again*fn4 seeks the entry of a default judgment, plaintiff has failed to demonstrate any prejudice to his claim that was suffered as a result of the minimal delay in the filing of defendant Makara's answer to the complaint. Id. Indeed, it is undisputed that the plaintiff has had ample opportunity to engage in and complete discovery, participate in settlement discussions and plaintiff has filed the instant motion for summary judgment. Id.
Stipulation of Settlement and Order of Dismissal - Second Claim
On October 2, 2006, Conceptualization Gibbs, represented for settlement purposes only by an attorney, and Eliot Spitzer, Attorney General of the State of New York, entered into a Stipulation of Settlement and Order of Dismissal with respect to the following matters/claims: Gibbs v. McGinnis, et al., 01-CV-527(Sr); Gibbs v. Marker, et al., 01-CV-660(Sr) and Gibbs v. Wichtowski, et al., 03-CV-700(Sr) (due process claim arising from a May 30, 2001 Misbehavior Report only). Dkt. #55. Specifically, the Stipulation of Settlement and Order of Dismissal states with respect to the instant matter, "WHEREAS, the parties in the above-captioned matters are desirous of discontinuing the litigation in... Gibbs v. Wichtowski, et al., 03-CV-700Sr, insofar as it sets forth a due process claim arising from a disciplinary hearing commenced pursuant to a Misbehavior Report with regard to plaintiff dated May 30, 2001." Dkt. #55, p.2 (emphasis in original). Thus, that portion of the instant matter relating to the May 30, 2001 Misbehavior Report (Second Claim) has been settled and dismissed with prejudice.
Defendants' Opposition to Plaintiff's Motion for Summary Judgment
In his motion for summary judgment, the plaintiff claims that it is undisputed that he was subjected to excessive force during the October 31, 2002 incident at Elmira. Conversely, the defendants involved in the incident maintain that the force used was reasonable. Moreover, the defendants argue that a videotape of a portion of the incident reveals that the plaintiff instigated the incident when he turned and struck officer Wichtowski on the side of the face with a feed-up tray. Dkt. #62, ¶ 7. The plaintiff further asserts that once out of camera range and in his cell, he was repeatedly struck by the defendants. The defendants deny these allegations and maintain that the force used was necessary. Id. at ¶ 8. Notably, with respect to that portion of the plaintiff's claim of excessive use of force once the plaintiff was out of camera range, defendants argue that "based on the conflicting stories raised by the parties, there is an issue of fact that cannot be resolved at the summary judgment stage." Id. at ¶ 9. Finally, in their memorandum of law in opposition to plaintiff's motion for summary judgment, defendants reiterate, "as there clearly is an issue of fact concerning plaintiff's excessive use of force claim, summary judgment is not appropriate." Dkt. #61, p.7.
Motion to Dismiss Defendants Goord, Leclaire and McGinnis
Defendants Goord, Leclaire and McGinnis were only named in the plaintiff's Second Claim, wherein plaintiff alleges that he wrote to defendants West, McGinnis, Goord and Leclaire complaining about the sentence imposed following a disciplinary hearing relating to May 30, 2001 disciplinary charges. Dkt. #1. As described above, on October 2, 2006, Conceptualization Gibbs, represented for settlement purposes only by an attorney, and Eliot Spitzer, Attorney General of the State of New York, entered into a Stipulation of Settlement and Order of Dismissal with respect to, inter alia, Gibbs v. Wichtowski, et al., 03-CV-700(Sr) (due process claim arising from a May 30, 2001 Misbehavior Report only). Dkt. #55. Specifically, the Stipulation of Settlement and Order of Dismissal states with respect to the instant matter, "WHEREAS, the parties in the above-captioned matters are desirous of discontinuing the litigation in... Gibbs v. Wichtowski, et al., 03-CV-700Sr, insofar as it sets forth a due process claim arising from a disciplinary hearing commenced pursuant to a Misbehavior Report with regard to plaintiff dated May 30, 2001." Dkt. #55, p.2 (emphasis in original). Thus, in accordance with the terms of the Stipulation of Settlement and Order of Dismissal, the plaintiff's claim against defendants Goord, Leclaire and McGinnis was settled and dismissed with prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. Notably in the papers filed in response to defendants' motion for summary judgment, the plaintiff does not oppose dismissing defendants Good, Leclaire and McGinnis. Accordingly, defendants' motion is granted and defendants Goord, Leclaire and McGinnis are hereby dismissed from this action.
Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Supp. 794, 798 (W.D.N.Y. 1997) (internal citations omitted).
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
Once the moving party has met its burden of "demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a 'metaphysical doubt' concerning the facts, or on the basis of conjecture or surmise." Bryant, 923 F.2d at 982 (internal citations omitted). A party seeking to defeat a motion for summary judgment, must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Excessive Use of Force Claim
A claim of cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution has both a subjective and objective component. To satisfy the subjective component, a plaintiff must demonstrate that the defendant "had the necessary level of culpability, shown by actions characterized by 'wantonness' in light of the circumstances surrounding the challenged conduct." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009), quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999) and Wilson v. Seiter, 501 U.S. 294, 299 (1991). Whether conduct of prison officials can be characterized by "wantonness" is determined by "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Wright, 554 F.3d at 268, quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992). The objective component of a claim of cruel and unusual punishment concentrates on the harm done in light of "contemporary standards of decency." Wright, 554 F.3d at 268, quoting Hudson, 803 U.S. at 8.
"Where a prisoners' allegations and evidentiary proffers could reasonably, if credited, allow a rational factfinder to find that corrections officers used force maliciously and sadistically, our Court has reversed summary dismissals of Eighth Amendment claims of excessive force even where the plaintiff's evidence of injury was slight and the proof of excessive force was weak." Wright v. Goord, 554 F.3d 255, 269 (2d Cir. 2009), citing Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) ("reversing summary dismissal of prisoner's complaint, though suggesting that prisoner's evidence of an Eighth Amendment violation was 'thin' as to his claim that a corrections officer struck him in the head, neck, shoulder, wrist, abdomen, and groin, where the 'medical records after the... incident with [that officer] indicated only a slight injury'"); Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) ("vacating district court's sua sponte dismissal of prisoner's complaint, though characterizing his 'excessive force claim [a]s weak and his evidence [as] extremely thin' where prisoner alleged that he was hit by prison guards 'after he was handcuffed' but 'the only injuries he suffered were a bruised shin and swelling over his left knee'"). Notwithstanding the foregoing, "de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind," is not proscribed by the Eighth Amendment's prohibition against cruel and unusual punishment. Hudson, 503 U.S. at 10. Indeed, the Supreme Court has further elaborated, "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Id. at 9.
Both plaintiff and defendants segregate plaintiff's excessive use of force claim into two separate episodes, those acts that were captured on camera and those that were not. As described above, initially the parties disagreed with respect to whether there were genuine issues of material fact concerning the incident in its entirety. The defendants have consistently maintained that material issues of fact exist with respect to whether the force used was excessive. In his motion for summary judgment, plaintiff initially argued that there were no disputed issues of material fact. However, in his response to defendants' motion for summary judgment (motion to dismiss), the plaintiff states, "the defendant's [sic] are not entitled to summary judgment, because there are genuine issues of material fact to be resolved." Dkt. #73. In fact, plaintiff has filed a "Statement of Disputed Factual Issues" wherein he enumerates eleven separate material issues of fact to be decided with respect to his claim of excessive use of force. Dkt. #72. Accordingly, because it now appears that plaintiff and the defendants agree that there are indeed genuine issues of material fact in dispute, plaintiff's motion for summary judgment on his excessive use of force claim against defendants Wichtowski, Witkowski, Perfetti, Makara, and Harvey is denied.
Defendant Fuller
Although it is unclear from plaintiff's motion for summary judgment and the documents submitted therewith, whether plaintiff is also seeking summary judgment with respect to his claim against defendant Fuller, this Court will treat plaintiff's motion as though it seeks summary judgment against defendant Fuller. As against defendant Fuller, plaintiff alleges, "F. Fuller is held liable, because he looked on as the above named defendants malicious [sic] and sadistically beat/assaulted plaintiff and did nothing to stop the defendants from assaulting plaintiff." Dkt. #1, ¶ 13.
The Eighth Amendment prohibits cruel and unusual punishment that involves the unnecessary and wanton infliction of pain. Rhodes v. Chapman, 452 U.S. 337, 346 (1981). The Eighth Amendment to the United States Constitution imposes the duty on prison officials to provide humane conditions of confinement and officials must ensure that inmates receive adequate food, clothing, shelter and medical care. Farmer v. Brennan, 511 U.S. 825, 833 (1994). In order to prevail on a claim of a violation of the Eighth Amendment, a plaintiff must satisfy both an objective and subjective component. First, the deprivation must be, objectively, sufficiently serious, such as "a prison official's act or omission must result in the denial of 'the minimal civilized measure of life's necessities.'" Id. at 834, citing Rhodes, 452 U.S. at 347. The second component requires that the prison official have a "sufficiently culpable state of mind." Id. In cases such as this, the state of mind is one of deliberate indifference to the health and safety of an inmate. Id.
Conditions of confinement inflict cruel and unusual punishment when they result "in unquestioned and serious deprivations of basic human needs" or "deprive inmates of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). However, conditions that are "restrictive and even harsh" are "part of the penalty that criminal offenders pay for their offenses against society." Id. With respect to the subjective component, a prison official will not be held liable for inhumane conditions, "unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). The Supreme Court of the United States adopted "subjective recklessness" as is used in criminal law as the test for "deliberate indifference" under the Eighth Amendment. Id. at 839-40.
In the instant case, the allegations in the plaintiff's complaint with respect to defendant Fuller are inextricably intertwined with those relating to the other defendants. Because there are genuine issues of material fact relating to plaintiff's excessive use of force claim sufficient to require the denial of plaintiff's motion for summary judgment, any claim against defendant Fuller is similarly inappropriate for summary judgment. Accordingly, to the extent plaintiff's motion for summary judgment was intended to include a request for such relief as against defendant Fuller, such request is denied.
For the foregoing reasons, plaintiff's motion for summary judgment (Dkt. #42) is DENIED. Defendants' cross-motion for summary judgment (dismissal of defendants Goord, Leclaire and McGinnis) is GRANTED.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
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Former LTCM scientist launches fund
A quantum physicist formerly of Long-Term Capital Management, a US hedge fund that ran into trouble 10 years ago, has set up a hedge fund business in London focused on volatile markets.
David Ko, who co-authored 10 academic papers on quantum physics while at Oxford University in the early 1990s, has set up Kurtosis Capital Partners with Stephen Cain, a former global head of currency at Deutsche Asset Management.
Ko and Cain worked together in the UK at JWM Partners, a hedge fund management business set up by LTCM founder John Meriwether after the collapse of LTCM, which was triggered by Russia defaulting on its ruble debt on August 17, 1998.
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December 27, 1999
NEW JERSEY COALITION OF AUTOMOTIVE RETAILERS, PLAINTIFF,v.DAIMLERCHRYSLER MOTORS CORPORATION, DEFENDANT.
This matter comes before the Court on plaintiff's application for a preliminary injunction and defendant's motion for judgment on the pleadings. For the reasons stated, the Court decides the motions as follows: (1) plaintiff's application for a preliminary injunction is granted, and (2) defendant's motion for judgment on the pleadings is denied as to plaintiff's claim premised on the New Jersey Franchise Practices Act and granted as to plaintiff's claim premised on the Automotive Dealers Day in Court Act.
The Court will file an order after determining the size of the bond required by Federal Rule of Civil Procedure 65(c) and whether the order should be made final, thereby obviating the need for a bond. The Court issues an accompanying Order to Show Cause directing the parties to address those two subjects.
The parties generally do not dispute the facts underlying this matter. Plaintiff New Jersey Coalition of Automotive Retailers ("NJCAR") is a trade association whose members consist of approximately 650 automotive retailers throughout the state of New Jersey. (Verif. Compl. ¶ 1.) Approximately 150 members of NJCAR currently hold franchises to sell motor vehicles manufactured by defendant DaimlerChrysler Motors Corp. ("DaimlerChrysler"). (Id. ¶ 3.) The relationship between motor vehicle manufacturers such as DaimlerChrysler and their retailers is governed by the New Jersey Franchise Practices Act (the "Act" or "NJFPA"), N.J. Stat. Ann. ("N.J.S.A.") § 56:10-1, et seq.
In addition to selling motor vehicles, automotive retailers are obliged, pursuant to written franchise agreements with motor vehicle manufactures, to provide warranty service on the vehicles that they sell. (Verif. Compl. ¶ 6.) Such warranty service typically includes both labor and parts. (Id.) The NJFPA requires manufacturers to reimburse a dealer at retail prices for the parts sold and the labor performed by a dealer under the manufacturer's warranty provided that the dealer's prevailing retail price is reasonable. N.J.S.A. § 56:10-15. DaimlerChrysler, however, has a warranty parts reimbursement schedule whereby its retailers receive only a 30 to 40 percent markup on warranty parts. (Verif. Compl. ¶ 11.)
The New Jersey Legislature amended the Franchise Practices Act, with the amendment effective on March 12, 1999, to clarify the manufacturer's obligation with respect to the reimbursement for parts used to perform warranty repairs. N.J.S.A. § 56:10-15(d) states in pertinent part:
For the purposes of this section, the "prevailing retail price" charged by a motor vehicle franchisee for parts means the price paid by the motor vehicle franchisee for those parts, including all shipping and other charges, multiplied by the sum of 1.0 and the franchisee's average percentage markup over the price paid by the motor vehicle franchisee for parts purchased by the motor vehicle franchisee from the motor vehicle franchisor and sold at retail. The motor vehicle franchisee may establish average percentage markup under this section by submitting to the motor vehicle franchisor 100 sequential customer paid service repair orders or 90 days of customer paid service repair orders, whichever is less, covering repairs made no more than 180 days before the submission, and declaring what the average percentage markup is. The average percentage markup so declared shall go into effect 30 days following the declaration subject to audit of the submitted repair orders by the motor vehicle franchisor and adjustment of the average percentage markup based on that audit. . . . No motor vehicle franchisor shall require a motor vehicle franchisee to establish average percentage markup by a methodology, or by requiring information, that is unduly burdensome or time consuming to provide, including, but not limited to, part by part or transaction by transaction calculations. . . . Id.
After the effective date of the March 12, 1999 legislation, several NJCAR members requested reimbursement from DaimlerChrysler for warranty parts at prevailing retail prices. (Verif. Compl. ¶ 14.) DaimlerChrysler responded with a letter dated May 27, 1999, which threatened imposition of a $400 per vehicle charge on all DaimlerChrysler vehicles sold in New Jersey if even one retailer sought an increased compensation rate. (Id. ¶ 15.) The letter provides in full:
This letter responds to your letter requesting warranty reimbursement for parts at retail. If DaimlerChrysler Motors Corporation pays any dealer an increased compensation rate for parts, pursuant to the dealer's request under New Jersey Law, then DaimlerChrysler will initiate the following action:
DaimlerChrysler Motors Corporation will discontinue using the current 30% and 40% warranty parts markup rates effective with warranty repairs on and after June 12, 1999. Payment for parts used in warranty work by New Jersey dealers will automatically be made at DaimlerChrysler Motor Corporation's published suggested retail parts price, except where valid requests are made by individual dealers pursuant to New Jersey law. Further information concerning payment and reimbursement details will be contained in a subsequent warranty bulletin.
In order to recover these increased costs, DaimlerChrysler Motors Corporation will institute a $400 surcharge on the invoice for all vehicles sold to and shipped to New Jersey dealers, or other equivalent measures. The additional charges will go into effect July 1, 1999.
In the event there are no requests by any dealership in New Jersey for retail rate reimbursement, then DaimlerChrysler Motors Corporation will not institute the above action. (Verif. Compl., Ex. B: Letter from R.D. Ciesta dated 5-27-99.)
M.J. MacDonald, a representative of DaimlerChrysler, transmitted a nearly identical message to all DaimlerChrysler New Jersey retailers via electronic mail on May 26, 1999. (Id., Ex C: email message from M.J. MacDonald dated 5-26-99.)
It is undisputed that those retailers who had requested reimbursement from DaimlerChrysler for warranty parts at prevailing prices withdrew their requests. (Id. ¶ 19.) DaimlerChrysler transmitted another electronic mail message to retailers on June 3, 1999 stating:
At the present time, DaimlerChrysler Corporation has no requests pending for warranty parts reimbursement at retail. Since DaimlerChrysler will not incur any incremental costs, the $400 surcharge described in M.J. MacDonald's May 26, 1999 dmail [sic], will be postponed. However, if DaimlerChrysler receives another request and begins to incur costs because of state law requirements, appropriate measures as well as parts reimbursement will go into effect all New Jersey dealers [sic]. (Id., Ex D: email message dated 6-3-99 from R.M. Fisher.)
NJCAR alleges that DaimlerChrysler is interfering with the rights of NJCAR members to secure the rights afforded them under the New Jersey Franchise Practices Act by threatening to impose a $400 penalty in response to any efforts to exercise those rights. (Id. ¶ 22.) NJCAR asks this Court: (1) to declare and adjudge that DaimlerChrysler's imposition of the proposed $400 per vehicle penalty is unlawful, and (2) to enjoin DaimlerChrysler from imposing any penalty upon its retailers or intimidating its retailers from making any requests for reimbursement for warranty parts at prevailing retail prices in accordance with N.J.S.A. § 56:10-15. (Id. Relief Requested.)
NJCAR argues that DaimlerChrysler retailers will be immediately and irreparably harmed unless the Court enjoins DaimlerChrysler from imposing, or threatening to impose, the $400 per vehicle charge. (Pl.'s Br. in Supp. at 9.) According to NJCAR, the proposed $400 surcharge cannot be justified as a response to the increased costs of doing business in New Jersey created by the Act and instead, constitutes a penalty designed to intimidate dealers. (Id. at 19.) NJCAR asserts that it is likely to succeed on the merits of the action because intimidation by a manufacturer aimed at causing a retailer to abandon the rights conferred upon it under the Franchise Practices Act in itself violates the Act. (Id. at 18.)
DaimlerChrysler argues that NJCAR has failed to establish any legal basis for injunctive relief. (Def.'s Br. in Opp'n at 6.) First, DaimlerChrysler asserts that it has not violated the Franchise Practices Act because (1) the use of a wholesale price increase to recover costs incurred in complying with the Franchises Practices Act is lawful, (id. at 9), and (2) DaimlerChrysler has agreed to honor all properly supported requests for reimbursement in accordance with § 56:10-15 of the Act. (Id. at 14.) In addition, DaimlerChrysler argues that NJCAR lacks standing to sue on behalf of DaimlerChrysler dealers. (Id. at 17-20.)
This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. We will begin by addressing NJCAR's application for a preliminary injunction.
I. NJCAR's Application for a Preliminary Injunction
I. Preliminary Injunction Standard
The grant of injunctive relief is an "extraordinary remedy, which should be granted only in limited circumstances." Frank's GMC Truck Ctr., Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (citing United States v. City of Philadelphia, 644 F.2d 187, 191 n.1 (3d Cir. 1980)). In ruling on a motion for a preliminary injunction, this Court must consider whether: (1) the movant has shown a reasonable probability of success on the merits; (2) the movant will be irreparably injured by denial of the relief; (3) granting preliminary relief will result in even greater harm to the nonmoving party; and (4) granting the preliminary relief will be in the public interest. ACLU of N.J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (citations and quotation omitted). Furthermore, "[t]he injunction should issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief." AT&T Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994). The Court will address these criteria seriatim.
1. Likelihood Of Success On The Merits
The movant must demonstrate a "reasonable probability of eventual success in the litigation" for an injunction to issue. Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982).
It is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits. Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975).
The United States Court of Appeals for the Third Circuit unequivocally declared that the New Jersey Franchise Practices Act does not preclude a manufacturer from recovering the additional cost of reimbursing warranty parts at higher rates through an increase in the wholesale price of its vehicles. *fn1 Liberty Lincoln-Mercury v. Ford Motor Comp., 134 F.3d 557, 564-65 (3d Cir. 1998); see also Acadia Motors, Inc. v. Ford Motor Co., 44 F.3d 1050, 1055 (1st Cir. 1995) (in regard to a similar Maine statute). The issue before this Court, however, is whether a manufacturer may threaten to impose a $400 wholesale price increase on its retailers if they attempt to assert their statutory right to reimbursement at prevailing market prices.
DaimlerChrysler's threat to impose a $400 wholesale price increase appears at this juncture to reveal, at the very least, a disinclination to comply with the statute. The plain language of the NJFPA provides that a motor vehicle manufacturer must reimburse a dealer for warranty parts at the prevailing retail price charged by the dealer for parts used in non-warranty work. N.J.S.A. § 56:10-15(a). A representative of DaimlerChrysler in a letter to retailers expressed displeasure "when legislators attempt to manage our company." (Verif. Compl, Ex. A.) We note, however, that the New Jersey Legislature duly enacted a law regulating the reimbursement of warranty work, and DaimlerChrysler's displeasure does not justify noncompliance.
DaimlerChrysler has clearly threatened its dealers with monetary harm if they attempt to assert their right to appropriate reimbursement. DaimlerChrysler did not inform its dealers that DaimlerChrysler would adopt the system required by the NJFPA and end its illegal use of reimbursing only at a set 30-40 percent markup. Instead, DaimlerChrysler stated that it would only end this illegal practice under the following conditions: (1) a request by a dealer for reimbursement at the prevailing market rate required by the statute, and (2) a resulting imposition by DaimlerChrysler of $400 per vehicle on all vehicles sold in the state.
We must now examine the nature of DaimlerChrysler's threat. DaimlerChrysler has not provided the Court with any evidence suggesting that the $400 wholesale price increase was related to its increased costs. *fn2 In contrast, NJCAR has provided evidence suggesting that the average retail parts markup by dealers is 70 percent. (Aff. of Elliot J. Desanto dated 8-20-99 ¶ 4.) In Acadia, the wholesale price imposed by the Ford Motor Company ("Ford") to recoup the increased costs of reimbursing warranty parts caused by a change from a markup of 30-40 percent, similar to the rate used by DaimlerChrysler, to a retail rate markup of 63 percent was only $160. 44 F.3d. at 1054. This considerably lower wholesale price increase suggests that the $400 increase threatened by DaimlerChrysler exceeded the amount needed to compensate for increased costs and instead, constituted a penalty.
In addition, NJCAR has noted that Ford informed its dealers in 1999 that the total cost per vehicle added by the inclusion of a warranty is $400-$700. (Pl.'s Br. in Supp. at 19; id., Ex. A.) The Court has no reason to believe that the costs added by DaimlerChrysler's warranties are significantly different. The markup for parts used by retailers is only a portion of the total cost added by a warranty. The cost of reimbursing dealers at a higher markup for parts than at the prior rate of 30-40 percent is obviously even smaller. In light of Ford's announcement, the increase caused by reimbursing retailers at the required statutory rate, instead of at 30-40 percent markup, seems highly unlikely, at least at this juncture and without opposing evidence submitted by DaimlerChrysler, to approach $400. *fn3
Accordingly, we find that NJCAR is likely to establish that DaimlerChrysler's threat of imposing a $400 wholesale price increase was designed to intimidate dealers from exercising their statutory rights. We agree with NJCAR that such behavior by a manufacturer violates the NJFPA. In Liberty Lincoln, the Third Circuit held that the manufacturer violated the NJFPA by denying the retailer reimbursement at the prevailing rate. 134 F.3d at 566. Here, DaimlerChrysler's threat of a $400 penalty, combined with its present reimbursement at only a 30-40 percent markup, also effectively denies retailers reimbursement at the prevailing rate. Cf. Black's Law Dictionary 1480 (6th ed. 1990) (noting that a threat may take away from the recipient's acts "that free and voluntary action which alone constitutes consent" and may restrain the recipient's freedom of action). We make this ruling in light of our awareness that the NJFPA is a remedial statute intended to equalize the disparity of bargaining power in franchisor-franchisee relations and must be construed broadly to give effect to its legislative purpose. Liberty Lincoln, 134 F.3d at 566 (citations omitted).
2. Irreparable Harm
Generally, a movant "cannot transform a claim for damages into an equitable action by asking for an injunction that orders the payment of money," Jaffe v. United States, 592 F.2d 712, 715 (3d Cir. 1979), but "[t]he fact that the payment of monies is involved does not automatically preclude a finding of irreparable injury." United Steelworkers v. Fort Pitt Steel Casting, 598 F.2d 1273, 1280 (3d Cir. 1979). In the Third Circuit, the unsatisfiability of a money judgment may constitute irreparable harm in extraordinary cases. Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197 (3d Cir. 1990).
In light of these principles, we find that NJCAR has demonstrated that it will be immediately and irreparably harmed without the issuance of a preliminary injunction. DaimlerChrysler is intimidating dealers into refraining from exercising their rights under the NJFPA. The loss of the dealers' statutory rights cannot be recovered through a money judgment.
3. Harm To The Non-Moving Party
We must also consider the possibility of harm to the nonmoving party from the grant of injunctive relief. See Oburn, 521 F.2d at 152; Delaware River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 924 (3d Cir. 1974) ("We believe that when considerable injury will result from either the grant or denial of a preliminary injunction, these factors to some extent cancel each other.").
The Court finds at this juncture that DaimlerChrysler will not suffer appreciable harm from the granting of a preliminary injunction. DaimlerChrysler argues that the issuance of the preliminary injunction will enjoin DaimlerChrysler from lawfully increasing the wholesale prices of its vehicles. (Def.'s Br. in Opp'n at 27.) This requested injunction, however, only prevents DaimlerChrysler from threatening to impose a penalty on dealers who assert their rights under the NJFPA. Under the clear standard set by the Third Circuit in Liberty Lincoln, DaimlerChrysler may seek to recover any additional costs created by its compliance with the NJFPA through a wholesale price increase in line with the requirements of the Robinson-Patman Act. *fn4
4. The Public Interest
Finally, the Court must consider the public interest. AT&T Co., 42 F.3d at 1427 n.8 (stating that "[a]s a practical matter, if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff").
The New Jersey Legislature sought to ensure that warranty customers received the same service as retail customers and that warranty work be performed according to generally acceptable standards. Legislative Statement, L. 1977, c. 84, § 3, Assembly No. 1956 (May 24, 1976). We therefore find that the public interest expressed by the legislature when enacting the NJFPA, (id.), supports the granting of a preliminary injunction enjoining DaimlerChrysler from interfering with a dealer's assertion of its rights under the statute.
II. DaimlerChrysler's Motion for Judgment on the Pleadings
Our decision granting NJCAR's application for a preliminary injunction renders moot DaimlerChrysler's motion for judgment on the pleadings as to NJCAR's claims under the NJFPA. *fn5 Although barely mentioned in its Complaint, NJCAR also asserts that the Complaint alleges a claim under the Automobile Dealer's Day in Court Act ("ADDCA"), 15 U.S.C. § 1222. We will therefore consider DaimlerChrysler's motion for judgment on the pleadings as to the ADDCA claim.
Federal Rule of Civil Procedure 12(c) allows any party to move for judgment on the pleadings "[a]fter the pleadings are closed but within such time as not to delay the trial." While the timing of a Rule 12(c) motion differs from a motion to dismiss pursuant to Rule 12(b), a court should apply the same legal standards to both types of motions. Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3rd Cir. 1991).
A court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) "only if, accepting all alleged facts as true, the plaintiff is not entitled to relief." Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986) (citations omitted). Further, all reasonable inferences that can be drawn from the plaintiff's allegations "must be accepted as true and viewed in the light most favorable to the non-moving party." Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987) (citations omitted). This Court may not dismiss a complaint unless the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheurer v. Rhodes, 416 U.S. 232, 236 (1974).
Under the ADDCA, a manufacturer must "act in good faith in performing or complying with any of the terms or provisions of the franchise . . . ." 15 U.S.C. § 1222. NJCAR's ADDCA claim fails because NJCAR has not alleged that DaimlerChrysler did not act in good faith in regard to a specific term of the franchise. NJCAR argues that the requirements of the NJFPA became part of the franchise agreement. (Pl.'s Br. in Opp'n at 6.) Like the district court in Acadia, we are not persuaded that state law has been incorporated into franchise agreements for purposes of the ADDCA. See Acadia Motors, Inc. v. Ford Motor Comp., 844 F. supp. 819, 831 (D. Maine. 1994), aff'd on other grounds, rev'd on other grounds, 44 F.3d 1050, 1055 (1st Cir. 1995). Accordingly, we find that the Complaint fails to state a claim under the ADDCA and will grant DaimlerChrysler's motion for judgment on the pleadings as to this claim.
III. Conclusion
The Court has taken the following actions herein: (1) granted NJCAR's application for a preliminary injunction; (2) denied DaimlerChrysler's motion for judgment on the pleadings as to NJCAR's claim under the NJFPA; and (3) granted DaimlerChrysler's motion for judgment on the pleadings as to NJCAR's claim under the Automobile Dealer's Day in Court Act, 15 U.S.C. § 1222. The Court will file an order after determining the size of the bond required by Federal Rule of Civil Procedure 65(c) and whether the order should be made final, thereby obviating the need for a bond. The Court issues an accompanying Order to Show Cause directing the parties to address those two subjects.
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From 8pm till 10pm, the NotesBerry.org team hosted a nibbles+drinks session at Shulas Restaurant in the Dolphin. 50 or so people appeared out of nowhere, and much discussion was to be had. Various senior RIM personnel attended and spent time with the customers
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Additional Property InformationThis listing is located at Tdb Blanding , Middleburg, FL. The property is presently availible at $499,900.
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It's an aquatic episode this week on North Fork in the News. (more…)
It's an aquatic episode this week on North Fork in the News. (more…)
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There's a scene in the 1977 film "Annie Hall" in which Woody Allen's character is at a bookstore with his girlfriend, played by Diane Keaton, and he suddenly places copies of "The Denial of Death" and "Death and Western Thought" in front of her.
"I'm gonna buy you these books, because I think you should read them," he tells her. "You know, instead of that cat book."
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"Yeah, cause I'm, you know, I'm obsessed with, uh, death, I think," he says. "Big — big subject with me, yeah."
I was 15 the first time I saw this scene. I was watching it at home with my uncle Peter, who was terminally ill with colon cancer. He began laughing as heartily as his body, much weakened by the rigors of chemotherapy and radiation, allowed.
More than 13 years later, I still vividly remember thinking how remarkable his reaction was; how someone mere months away from dying was able to laugh about his fate.
Despite my uncle's example, the ability to think about death objectively has mostly eluded me. An anxious child and lifelong sufferer of obsessive-compulsive disorder, I went through a phase where I regularly begged my mother to reassure me I wouldn't die for a very, very long time. So I was intrigued when I spotted an advertisement for a group-directed discussion called a "Death Café" at Floyd Memorial Library in Greenport.
Organized by Poppy Johnson, the library's assistant director, a Death Café is a philosophical forum about death that purports to help people "make the most of their (finite) lives," according to a library flier.
When the group met for the first time Friday afternoon, I was one of a dozen attendees who gathered around a large table in the library's conference room. Our ranks included a priest, a beekeeper, two couples, a 91-year-old woman and a man with a history of slipping into diabetic comas.
The proverbial ice was broken when another participant arrived late carrying a glazed chocolate cake shaped like a skull.
As we delved into our deliciously macabre dessert, Ms. Johnson delivered a brief history of Death Cafés, the first of which was reportedly organized by Swiss sociologist and anthropologist Bernard Crettaz in 2004. In the past few years, the volunteer-run model has sprung up in cities around the world.
"I think the idea is that, simply, in our culture we have a real taboo against actually talking about death," Ms. Johnson told our group before we began. "And anything you don't talk about somehow takes on scary or magical properties that make it difficult to deal with. Talking about death is one way to embrace life."
So, that's what we did.
Rather than make standard introductions ("Hi, I'm Rachel and I'm thrilled to be here!"), Ms. Johnson encouraged each of us to talk briefly about our views on or experiences with death.
The first person to speak said she became aware of death at a young age. She was just 8 years old when her father died. In a short span of time, her brother and mother died, too.
"One of the things I decided was I was not going to be a victim," she said as I felt my eyes brim with tears under the glare of the basement's fluorescent lights. An objective discussion about death might have been the goal, but the power of human emotion can't be underestimated.
The beekeeper told us that in order to help conquer the difficulty she has with death, she began volunteering as a hospice worker almost 10 years ago.
One participant said she decided to come to the Death Café because she figured "anyone who came here would have a sense of humor."
Another said she was an Irish Catholic who grew up going to wakes and that she'd like to choose how and when she dies.
"Something simple," she said. "No drama."
That led us into a brief debate about end-of-life care, with many attendees agreeing they'd like to go out on their own terms. We also talked about "permission to die" — a phenomenon in which people who are terminally ill sometimes don't die until their loved ones tell them it's OK to let go.
At one point, our group discussed the idea of an afterlife. Some said they believed in the notion; one man said he believes our spirits become whatever we want them to be. I avoided the priest's eyes, feeling ashamed, when I revealed that I vacillate on the concept of an afterlife.
"The finality of death scares me," I told the roomful of strangers, who already felt like friends. "Ceasing to exist when that's all we've ever known."
They nodded.
Two hours later, I left the library feeling inexplicably moved — and, ironically, reinvigorated about living. I think the others did, too.
We all agreed that we hoped to see each other at next month's meeting. Alive and well, of course.
Rachel Young is a features writer and copy editor at Times/Review Newsgroup. She can be reached at [email protected]
Flanders artist Andrea Cote, who met with the Greenport Village Board to discuss her latest project Monday night, said she plans to install a temporary interactive art piece in Mitchell Park that highlights the village's history. (more…)
One could use the most glowing adjectives to describe Arthur Swan's personality and none of them would seem effusive.
That's because they're well deserved: The 89-year-old tenor and voice coach from Greenport is among the world's rare examples of people who are as smart as they are charming. (more…)
Due to construction projects and track repairs, buses will be replacing Long Island Rail Road trains running between Ronkonkoma and Greenport beginning Sept. 2 and ending Nov. 16, the MTA announced.
The buses will replace four weekday trains — two eastbound and two westbound — between the two train stops while ties are replaced and grade crossings are restored. (more…)
Patricia Lutzky of Peconic Landing was recently awarded LeadingAge New York's "Professional of the Year" award, and staff members and residents couldn't be more pleased.
In fact, to show their sheer delight with Ms. Lutzky's win, everyone at the retirement community came together to create a congratulatory video to the Pharrell Williams' pop hit "Happy." (more…)
Northeast Stage will present William Shakespeare's "A Midsummer Night's Dream" in Greenport's Mitchell Park Friday through Sunday, July 25-27, at 7 p.m. The rain location is Greenport High School. (more…)


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AYSO works because our volunteers work. The volunteers work because they believe in the AYSO philosophies. Our phenomenal growth underscores AYSO's commitment to a healthy competitive atmosphere for youth soccer players, combined with dedication toward the development of responsible individuals.
AYSO is a volunteer organization with parents, friends and community members working as coaches, referees and administrators. It's not unusual to find two, three or more children in the same family playing AYSO soccer - while Dad serves as referee and Mom as coach. It can be a total family experience!
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Distances are calculated in a straight line and may not reflect actual travel distance.
Quirky one bedroom garden cottage tucked away in a very private location in the very heart of Durham City Centre.
The cottage is offered on an unfurnished basis but comes with kitchen appliances and would be ideal for a single person or couple. Spacious living room with neutral decor and feature gas fire separate modern fitted kitchen with appliances including integrated electric hob/oven and extractor hood fridge/freezer washing machine and microwave. Recently fitted fully tiled bathroom with shower over bath and a large first floor double bedroom with a period fireplace.
Just a very short walk to the amenities of Durham City Centre where many retail shops and supermarkets can be found along with pubs and restaurants. Also ideally situated within a five minute walk to the central bus and train station. Not too far from the Gala Theatre, Durham Student Union and University Library as well as the campus itself.
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Former Miss World and Bollywood Superstar Priyanka Chopra will be promoting the Indian sari on international platforms, officials said on Thursday. According to movies.ndtv, a proposal to this effect is being given the final touch and the National Award winner has given her consent, Union Textile Secretary Zohra Chatterjee said during her visit to Varanasi, the parliamentary constituency of Prime Minister Narendra Modi.
Mary Kom First Look : Priyanka Chopra is almost unrecognizable ! For her new film, Former Miss World plays the role of the famous Olympic medalist, Mary Kom.
Mary Kom's biopic will highlight the struggles that the famous boxer went through to pursue a career in sports. Mary Kom, herself, said "I was very impressed after seeing the poster" and she called Priyanka Chopra to praise her.


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|Half Baths
|Property type
Top floor exclusive luxury condo 1388 sqft with an amazing ocean and city view. Specialy decorated by a french designer this unit will provide you everything you need and much more that you can imagine.
Two very large bedrooms with king and queen bed with your own private jacuzzi surrounding the city and large terrace for each. Big living room with large terrace. This condominium is located on the "Colina del Sol" in town and very close of the sea side (Malecon)
All the best retaurants are very close from the hill. You have the real avantage to be in town and surrounding the city and the bay.
We offer a free aiport transportation and special condition for last minute booking.
Two covered parkings and 24 hours security.
Keywords: Condo, Condominium, casa, view, la Paz, Cabo, hotel, swimming pool, jacuzzi, fitness club, safe, private, free airport, penthouse
This condo is simply beautiful. My husbandand I have been to La Paz twice before but no pave comes closer to this place. Manuel (owner) meet us at Applebees to show us the way. He gave us an upgrade to this 2 bedroom and it was heaven. Very convenient for beaches, Malecón, and el centro. Perfect fora family with kids of any age. Great pool and spa, practically private. We will be back soon and will definitely stay in one of Manuel ' s condos.
This is a fantastic apartment, clean, modern, well appointed and perfect for enjoying the sights and sounds of La Paz. The view from the balcony is a full 150 degrees that sweeps from the hills over the city, across the city skyline and its port, over the bay and finally, out to the open Sea of Cortez. The sunsets and their amazing colors are spectacular against the outline of the far off western buttes of the Baja across the bay. The elevation of the apartment, being on the 5th floor of a building on a hill, gives a great depth to what you see and hear. Watch the boats come and go, see the neighborhood come to life after the sun sets and the evening cools down. We found ourselves relaxing in the air conditioned apartment during the day and enjoying the city restaurants at night. The location is very safe, the building and parking is gated and has a security guard at night, although I'm not sure they need it. It was a very relaxed, low key week for us with plenty of good food and spectacular views. Our stay was far better than a stay in any hotel room we could have found--not even a close comparison.
Photos do not do justice - the place is great, and we will stay again! Only great things to say... so if you are looking to spend time in La Paz you will NOT go wrong staying here.
Returned home yesterday from a fantastic trip to La Pa, and I have only positive comments about staying in Manuals 2/bedroom at Colina del Sol. We arrived at the bus station and were greated by Rosita, taken to the unit and everything was as it is stated. The bedrooms and baths are large and comfortable, the kitchen modern and totally outfitted and best of all the views are spectacular. All the pictures were exactky as we found the unit. We had decided not to rent a car and Manual was so kind to drive us back to the malecon for dinner and the following day he came by, so that we could make a grocery store run. The rest of the week we would walk down the hill, a very large steep hill, and depending on our energy level would either walk back up or take a taxi, which would cost 70 pesos from just about anywhere in town. Everything is close by, great restaurants, groceries, shopping, museums, transportation to the beaches, snorkeling outfitters, and the harbour. I'm already planing a return trip next spring.
OMG.. Everything that is described is true. The condo is amazing.. the view is breathtaking. The condo was very clean, neat, comfortable, and well equiped with everything we needed: such as toewls, hand soap, dish soap, laundry soap, dishes, cookware, etc.
Rosita, the owner, is an absolutely beautiful person and very helpful. We are so looking forward to returning and meeting Manuel.
La Paz is a beautiful city, just like all the photos.
We definatley recommend this condo.. There are not enough words. AWESOME
We recommend SUNRIDER tours for the snorkeling/luncheon tour. The guides werer wonderful and is worth every penny. Bluegreen warm waters, white sand, beautiful color in the sea of Cortez, and swimming with the sea lions. BREATHTAKING!!!
Tonight was our last evening to enjoy the La Paz sunset from the balcony of this amazing condo. Unlike others we have stayed in, every on-line picture and description is 100% accurate. The place is roomy, well thought out, beautifully decorated, conveniently located, and has absolutely every single thing you could possibly need right down to beach pads and sun umbrella. Manuel, the owner is attentive and responds to any concerns at once. We only had one during our stay, a broken garborator and it was fixed within a few hours. The grounds are well kept and the pool area is relaxing and comfortable. Should we return to La Paz it will be to stay in this most wonderful place.
Whales watching, snorkeling with Whales sharks and sea Lions
|Rate Period
|Weekend Night
|Monthly *
My Standard Rate
1 night minimum stay
* Approximate monthly rate. Actual rate will depend on the days of the month you stay.


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Best Western Kingston properties are provided below. Search for cheap and discount Best Western hotel rates in Kingston, NY for your business gathering or personal travels. We list the best Best Western Kingston hotels & motels so you can review the Kingston Best Western hotel list below to find the perfect place.
Our service will also list discounted Kingston, NY hotels + motels that get similar quality scores of a Best Western.Booking a group or meeting? Get bids from hotels in Kingston NY
How should we direct your call?
Located in Monticello, Best Western Monticello is close to Monticello Casino and Raceway and Concord Monster Golf Course.


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All contents © Hollywire, 2016


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I had 3 days for sick leave then work one year to get a week off and then you had to save that for the 2 week shut down in July.You guys in Congress get what ever you want when ever you want and the hell with the people.The people that are going to vote you out of here.
I work for a school district and we used all of our snow days during Hurricane Sandy. Day off for Martin Luther King's Jr.'s birthday was taken away and now President's day too. Easter is next. The Governor says we need a certain number of days in school. I think Congress should be required to be in session for so many days as well.
We The People elected yall to take our oppinions and thoughts to The senate and The house not ROB US BLIND....DOWN WITH CAREAR POLITICIANS.
If they got paid for what the accomplished instead of just showing up part time things would and could get better. Its time to get off your butts and try to make things better.
NONE - its a regular working day. Politicians need to get back to work, get a budget, and be useful!
this whole self imposed emergency is ridculous they need to stay at work and do ther job this guy john bannor?(wrong spelling) is the major problem here I have written his office to voice my disapproval and I ask you to do the same please (ohio state rep).


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Jillian Michaels JumpStart 14 Day Cleanse and Burn Reviews
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- Average: 4.3
- High: 5.0
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- Jillian Michaels
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Comments about Jillian Michaels JumpStart 14 Day Cleanse and Burn:
I'm a big fan of Jillian Michaels and her workout dvds. I don't think she has a good product when it comes to supplements and diet aids however. I took this as was recommended on the product label and didn't notice one bit of difference. I could have used the money better by purchasing another of her DVDs.
Comments about Jillian Michaels JumpStart 14 Day Cleanse and Burn:
I bought this thinking it would work great with the Jillian Michaels 30-day-shred video I purchased. I had read a couple of reviews that had said the person had headaches and stomach issues after taking this, but just figured this was the minority, so i went through with the purchase. I started taking them as directed, eating well, cut out caffeine, etc. all while doing my workout video. the second day i had a terrible headache, but chalked it up to the sudden lack of caffeine, so i kept taking them. I felt so bad two nights that i didnt take the second dose at all, and never finished the first week worth. I still thought this must have been due do the caffeine, but decided that since i didn't seem to notice anything special going on, that it truly wasn't worth the money. It interferred with my workout routine, as i felt so bad!
Two weeks later, a friend of mine told me she had bought them also and was taking them and began to have terrible headaches that she couldn't get to go away no matter what. I told her about my headaches and upset stomach from this also, and she said she wasn't going to take them anymore either. I was very upset with this product. the only result i can see is that if it makes you sick, you would lose weight but that defeats the purpose of getting into shape with her program.


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I put together three collages because I have nothing better to do. It's a somewhat casual wedding, and I'm not willing to spend much so to be fair, these aren't high-end outfits. Please let me know which one you think looks better!
- #139% (12)42% (8)40% (20)Vote
- #223% (7)26% (5)24% (12)Vote
- #338% (12)32% (6)36% (18)Vote
Most Helpful Guy
Most Helpful Girl
First one I guess...
But the second one is also cute.11|00|0
Thank you =)


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Sugar Ray here...I retired from the ring but Boxer is still in the blood! I'm really not as old as I look. Daddy grayed prematurely; I laughed about it when I was a young pup...not so funny now. I'm only about 4-5 years old..okay, maybe 6; I've lost count but I do know I have lots of livin' and lovin left. My life has been kind of rough. I thought when I was dumped I had really hit bottom but SWAT tells me it may have been the best thing for me. Now I have a chance to find my very own family that's going to love me forever; how cool is that? I weigh about 50 lbs. but could stand to gain a few. I am smart, house trained, I know "stuff" like sit and wait. I'm a pro at doggy doors. I don't climb or jump (well, except rope when I'm training). I'm just an all around good guy looking for a foster or forever. No cats please! If you have a little extra room, give me a call (918) 605-6516 ~ Sugar Ray


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HHWP First Aid, CPR, AED Training 2/23/2017
Actions and Detail Panel
HHWP First Aid, CPR, AED Training 2/23/2017
Thu, February 23, 2017, 7:00 AM – 3:30 PM PST
Event Information
Date and Time
Cottage 17
Moccasin, CA 95347
First Aid, CPR, and AED Training
Work Order: 4226623
Instructor: Sierra Rescue Inc.
Description: Mandatory safety training for all HHWP employees.
Attendance Note: Roster will be "locked in" and submitted for scheduling Thursday the week prior to class. Absences or withdrawals after this date will be recorded as "No Show" except in case of emergency.
Questions or problems with scheduling? Contact Carrie King, HHWP Training Administrator, firstname.lastname@example.com or (209)989-2822.
Date and Time
Cottage 17
Moccasin, CA 95347


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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Term Paper:
Business Plan
Corbin Pacific, Inc. is a California-based company, whose mission is to produce best motorcycle accessories in the world through innovative designing and high quality manufacturing with a customer oriented approach.
Mike Corbin, Founder and President of the company started this company back in 1968 by producing motorcycle seats in his garage. Over the past three decades, the company has come a long way. It now has more than 90% market share in the motorcycle accessories. Its product line includes motorcycle seats (also called saddles), bags, fenders and other small accessories of a motorcycle. The company has a patent on using 'integrated molding technology' to manufacture motorcycle seats.
In 1998, its annual revenue was over $15 million and employed 154 associates. The company has its offices and manufacturing plant in Hollister, California with a major showroom in Daytona Beach, Florida..
Since its inception, Corbin-Pacific has identified product needs and designed stylish products to fill these needs. New products had fueled the growth and profitability of the company.
The company is very well managed. Its employee turn over ratio is low; there are no layoffs and compensation package given to its employees is one of the best in the industry.
Company's marketing strategy is product driven. There is a lot of emphasis on mass customization. Internet is being used by the company for its marketing and online selling of its products.
Company's financial position is strong. It is supporting Corbin Motors financially and is providing a base for its research and development.
This business plan is based on a Case Study conducted by Harvard Business School (1999). A standard business plan outline (Berry, 2004) has been followed.
1.2 Mission
The company's mission is to produce best motorcycle accessories in the world through innovative designing and high quality manufacturing with a customer oriented approach.
1.3 Keys to Success
It is important that the company continues to produce high quality saddles and accessories for a wide range of street motorcycles, dual sports, quads and scooters. At the same time, the company's further success will depend on venturing into additional products while securing new customers.
Company Profile
2.1 Company Ownership
The company was initially established in 1968 at Gardner, Massachusetts by Mike Corbin, Founder and President of Corbin-Pacific. The company is the top motorcycle seat manufacturer in the world. In 1979, Mike moved to California and established its offices and manufacturing plant at Hollister.
2.2 Business Description
Corbin Pacific, Inc. designs, manufactures and sells motorcycle accessories for motorcyclists who want to upgrade their bikes' original factory equipment. The company has more than ninety percent market share in the U.S. The company has revenue of around $15 million and over 150 employees.
2.4 Company Locations and Facilities
The company has its offices and manufacturing plant at Hollister, California. In addition to that, it has a major showroom in Daytona Beach, Florida. Both these locations are famous for motorcycle races and are considered hub of motorcyclists' activities.
2.3 Overview of Technology and Products
Corbin-Pacific's market leadership is driven by company's skills in several areas including making molded composite (fiberglass) structures. The company has a patent on using 'integrated molding technology' to manufacture motorcycle seats. The process of molding consists of a polyester strand which is combined with fiberglass resin and formed into a polyester mold by hand. As the fiberglass is formed in the mold, metal appendages are woven into the fiberglass to provide structural support. The mold is then sent to a foam machine, closed and filled precisely with the right amount of polyurethane. The filled mold is then clamped shut and the foam rises like bread in about five minutes. The seat and the fiberglass base plate is now removed from the polyester mold and excess material is trimmed from it.
Major products of the company include motorcycle seats (also called saddles), bags, fenders and other small accessories of a motorcycle.
2.4 Future Vision
Mike Corbin, Founder and President of the company, intends operating Corbin-Pacific as the design platform for Corbin Motors. The company has a strong research and development facility available which can be utilized for this purpose.
Market and Competitive Analysis
3.1 Market Segmentation
The company's sole targets are the customers having their personal motorcycles and are desirous of upgrading saddles or other accessories. Although the margins are high when selling retail but the company understands the role of distributors who help expand the company's reach and therefore the company tries to keep a balance in the channels.
3.2 Market Analysis
Sale of motorcycles in the United States was at peak in the late seventies and early eighties. Sale of new bikes had begun increasing again in the late nineties. Sale of motorcycle accessories is directly proportionate to the sale of new bikes. 80% of Corbin's customers are having bikes that are less than 24 months old. In 1998, there were 250,000 heavy bikes sold in U.S. And in the same year, Corbin sold around 100,000 seats.
The market of motorcycles is though not expanding fast but it is maintaining a steady growth rate. Corbin holds over ninety percent of the market share and will continue to enjoy its leading position with no major competitor in near vicinity.
3.3 Market Pricing and Industry Analysis
New motorcycles come with seats which costs the motorcycle manufacturer about $20. Corbin seats and accessories cost much more with retail prices starting at about $300. Motorcycle manufacturers were not interested in installing costly seats which would ultimately increase the cost of motorcycle. This added to the advantage of Corbin and the customers were forced to customize Corbin seats on their motorcycles.
Similarly, motorcycle dealers were also happy to sell Corbin seats and other products as they enjoyed a margin of 35%. The Corbin kept everyone in the industry satisfied.
3.4 Marketing Strategy
The company is marketing driven. Its new products keep driving the company financially. Every year, the company produces new products based on innovative designs and customer satisfaction is ensured. New products are the major contributing factor in the sales growth.
At one time, company's large percentage of the business i.e. 30% used to come from a single customer. The company started adopting a balanced approach and now no one customer even stands at 10%.
The company keeps a track of every one who calls for certain inquiry. A report is compiled basing on the customers' demands periodically, and accordingly new products are developed which already has a market base.
The company is utilizing its website for marketing. Information about entire product range is available on the site. In addition, the company has also commenced taking online orders which has contributed significantly in its sales growth.
3.5 Marketing Plan
The overall marketing plan of Corbin-Pacific is based on the following fundamentals:
Segments of the market planned to reach.
Distribution channels planned to be used to reach market segments including online channel.
Share of the market expected to be capture over a fixed period of time.
3.6 Website Marketing Strategy
The company is maintaining an attractive web portal. The company website is providing adequate details about its product line. The website also offers online purchasing facility.
Organization and Management
4.1 Organization Structure
The company's management philosophy is based on maintaining a family atmosphere. Mike's philosophy of the structure of the company is different from most. Mike Corbin, being President of the company places himself at the bottom of the pyramid, upside down and everything else is more important than he is.
4.2 Management Hierarchy
Mike Corbin
Founder and President of the Company
Tom Corbin
Vice President (now President of Corbin Motors)
John Ortiz
Chief Engineer
Dave Merrihew
Chief Financial Officer
Vince Zavala
Chief Designer
4.3 Human Resource Policy
Human resource policy of Corbin Pacific reflects Mike Corbin's focus on obtaining long-term commitment of its employees. Salient of the policy are highlighted below:
Although the motorcycle accessories business is seasonal and is based on the sale of new motorcycles. The company rarely had any layoffs.
Corbin Pacific has lowest of turn over in the industry. In 1998, out of 117 associates only three left the company and that too for family concerns. None left for the reason of a better job offer or due to work environment.
The company has a lucrative compensation package. There is an average of 10% annual wage increase with outstanding employees getting almost 100% raise. Corbin associates also have the opportunity to participate in the company's ESOP (Employee Stock Ownership Plan).
Company does not believe in supervisors. Total quality management is maintained through creating sense of responsibility and motivation to work.
Employees of the company are given on-job training.
5.1 Income Statement
Carbon-Pacific's Income Statements for Fiscal Years Ending 9/30 ($000's)
Cost of Goods Sold
Gross Margin
Operating Expenses
Management and Office Wages
Sales Commissions
Advertising and Marketing
Promotions (including shows, meals, etc.)
Legal and other Fees
Freight Out
Equipment Rental
R& D-Motorcycle
R& D-Sparrow
"Corbin Pacific Case" (2005, October 06) Retrieved December 9, 2016, from http://www.paperdue.com/essay/corbin-pacific-case-68864
"Corbin Pacific Case" 06 October 2005. Web.9 December. 2016. <http://www.paperdue.com/essay/corbin-pacific-case-68864>
"Corbin Pacific Case", 06 October 2005, Accessed.9 December. 2016, http://www.paperdue.com/essay/corbin-pacific-case-68864
RESEARCH QUESTIONS Research questions asked in this present study include the following stated questions: (1) What role does Internet technology (Web 2.0) play in the international student's development and maintenance of a sense of belonging in a new home country? (2) What role does length of residence play in the international student's development and maintenance of a 'sense of belonging' in a new home country? (3) Are there any differences in the adaptation of
She also mentions the huge energy giant British Petroleum (BP) came up with some honest and effective marketing in its green promotions. And while it is laudable for an oil company to invest in green technologies, BP did it with "appropriate humility that admits its own guilt while setting the stage for conversion to alternative energy sources" (Ottman, 2002). Meantime she says to Exxon, "Wake Up!" because Exxon was at
). The Navy also established institutions to particularly cater for women wishing to enter the service. It recruited women into the Navy Women's Reserve, which was known as Women Accepted for Volunteer Emergency Service (WAVES), in 1942. More than 80,000 such women served the military in occupations relating to communications, intelligence, supply, medicine and administration. The Marine Corps Women's Reserve was created in 1943. Women in this establishment held jobs such as


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Good hotel for solo travelers. Great location. Popular among solo travelers.
Guest Review Highlights
- Great location
- Accessibility by car can be a challenge
- Quite clean
- Room cleanliness is acceptable
- Room is all right
- Bathroom is ok
- Rooms need regular maintenance
- Tasty breakfast
- Spacious rooms
- Average beds


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Berg & Hauck's Celery Bitters - is currently on backorder. You may still purchase now though and we'll ship as soon as more become available.
Hand crafted in Pullach, Germany, Berg & Hauck's Cocktail Bitters is a line of traditional bitters that includes reverse-engineered recipes from the 1800's. These bitters can be used in soda water, classic cocktails and for cooking/baking recipes.
Flavor Notes: Cooked celery, lemon, spice.


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For sale by Harmony and Charm VERIFIED25 Aug 3:43 pmAdenta, Accra
Window Blinds for your homes and offices, Assorted designs and Colours to choose from.
sold per sqm 100cm*100cm
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Before Michael Bay's adaptation of the Transformers to the big screen in 2007, the Transformers were perhaps best known as action figures and cartoon characters. Much of the back story of the Transformers, however, must be credited to Marvel Comics, whose editorial department, especially writers Bob Budiansky and Simon Furman, turned what could have been forgettable robot action figures into compelling characters fighting for the very survival of the universe itself. Ten issues in particular from the 1980s Marvel Comics Transformers series prove that the Transformers are more than just a child's playthings. Here is a listing of what I consider to be the greatest Marvel Transformers comics of all time.
9. Transformers #79: "The Last Autobot" - The Sunbow Transformers cartoon series


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Friday, December 2, 2016
36" Standard to Standard (big to big) HDMI Cable. This cable has two regular HDMI heavy duty swivable cable heads. It can be set at right angles in all directions to avoid strain on the cable. You can use this cable with any camera that has a standard HDMI output. This is the perfect cable for Zacuto EVF owners with video cameras like the Sony F3, Panasonic AF100, Sony FS100, Nikon D300 and other cameras that have a standard size HDMI output. It is also the ideal cable to have for looping out of the EVF, as it ensures you are getting the correct pin insertion size of 9.5mm to 10mm for the best picture transmission.
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Please enter your email address below. You will receive a link to reset your password.Ahh, wait, I remember now!


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Watch renowned researchers Drs. Ian Lipkin and Mady Hornig take the Chilli ME Challenge, LIVE from New York by webcast this coming Wednesday, 1st July at 1 p.m. EST.
Discuss the article on the Forums.
K-PAX, Ritan, and Montoya: Treatment for CFS?
Discussion in 'General ME/CFS News' started by Firestormm, Mar 23, 2014.