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April 11, 2008
JOSEPH & MARIA BURKE, PLAINTIFFS,v.QUICK LIFT, INC., ET AL. DEFENDANTS.
Plaintiffs Joseph and Maria Burke (collectively, the "Burkes" or "plaintiffs") bring this maritime and derivative torts action against defendants Quick Lift, Inc., ("Quick Lift") and Staten Island Boat Sales ("SIBS") (collectively, "defendants"), alleging that the Burkes were injured as a result of defendants' failure to properly install a piece of equipment on a yacht purchased by the Burkes. This Court has jurisdiction over the Burkes' claim under 28 U.S.C. §§ 1333 and 1367. Presently before the Court is defendant SIBS's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is denied.
The facts described below are taken from the parties' depositions, affidavits, exhibits and defendant's Local Rule 56.1 statement of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001).*fn1
In 2000, Joseph Burke purchased a powerboat from SIBS. (Defs.' 56.1 ¶ 1.) The powerboat purchased by Joseph Burke was a Carver 450 Voyager Pilothouse, manufactured by Carver Boat Corporation ("Carver"). (Defs.' 56.1 ¶ 2.) Joseph Burke accepted the 45-foot long powerboat on or about June 9, 2000, and executed a document whereby he confirmed that the vessel was in good working condition and met all of his expectations. (Id.)
In 2000, SIBS purchased a davit which was manufactured and installed on the powerboat by Quick Lift. (Defs.' 56.1 ¶ 3.) The Quick Lift invoice reflects that the davit purchased by SIBS for installation on Burke's boat was a Model QLH 8000. (Defs.' 56.1 ¶ 4.) The davit was shipped to SIBS from the Quick Lift facility in Miami, Florida. (Id.) A davit is a crane like device that is utilized for raising and lowering boats, anchors, etc. (Defs.' 56.1 ¶ 4, n.1.) In the realm of luxury powerboats, the davit is generally utilized to raise and lower small auxiliary vessels, also known as tenders or dinghies. (Id.) It is comprised of a shaft or standpipe, which is mounted to the boat, and a "boom" which extends out from the standpipe. (Id.)
The davit was installed on SIBS's premises by two Quick Lift employees, Daniel Piles ("Piles"), who was also the Vice-President of Sales, and his brother, Salvatore Piles, Jr. (Defs.' 56.1 ¶ 5.) Although Piles had done some 300 davit installations over the course of his 10-year career, he believed that the date in question was the first time he had installed a davit on a Carver boat. (Defs.' 56.1 ¶ 10.) Piles had seen factory installations on other Carver boats, but only by looking from the outside. (Id.) As such, Piles did not know exactly how the davits had been installed by Carver and he did not know if they were installed in the same manner in which he had installed the davit on the Burkes' boat. (Id.)
Michael Omanski, a Regional Service Manager for Carver, testified that davits are meant to be installed in a particular location "on the aft section of the bridge" of the subject boat. (Defs.' 56.1 ¶ 11.) Indeed, there is a round-shaped "landing" on the upper deck of the Carver boat on which the round, upper plate of the davit is supposed to be mounted. (Id.) The landing is constructed of fiberglass and there is an aluminum plate laminated within the upper deck. (Id.) The aluminum plate is three-eighths of one inch thick and shaped like a doughnut. (Id.) Significantly, there is no such aluminum plate embedded in the lower deck, where the davit's base is mounted. (Id.) The area where the davit is installed was specifically engineered for this purpose by Carver. (Defs.' 56.1 ¶ 12.) Indeed, the very reason why the embedded plate on the upper deck was doughnut-shaped was to accommodate a davit. (Id.) In effectuating davit installations, Carver secures the upper plate of the davit to the upper deck by drilling and screwing or "tapping" directly into the upper deck and the doughnut-shaped aluminum plate embedded within. (Defs.' 56.1 ¶ 13.) The base of the davit is "through bolted" to the lower deck and to an aluminum backing plate which is added. (Defs.' 56.1 ¶ 14.) Omanski testified that the "through bolt" installation is easier when done while the boat is being assembled, but can still be done in an after-market installation. (Id.) That is, once the boat is constructed it is still possible to add the backing plate and through bolt and use washers and locknuts to secure the base down. (Id.)
James Berkebile, Vice President for New Product Development for Carver Boat Corporation inspected the subject boat. Upon looking at the location where Quick Lift's davit was installed in this case, Berkebile testified that the davit was installed in the proper location. (Defs.' 56.1 ¶ 15.) Indeed, the davit was installed in the same location as the factory-installs by Carver, but it was done "in a different manner." (Id.) Specifically, Berkebile stated that, when the davit is factory-installed, a plate is added and the davit is through bolted. (Id.) Omanski defined "through bolted" as twining a bolt through the top of the davit's bottom base plate and securing it on the bottom with washers and a nut. (Id.) Piles had mounted the Quick Lift davit's base plate to the boat's lower deck "in a different manner than a factory-installed installation." (Id.)
Significantly, Piles admitted that while he knew of the location on the subject boat where davits were installed by Carver, he did not know the details of the manner of proper installation. (Defs.' 56.1 ¶ 16.) In installing the davit on the Burkes' boat, Piles opened a hole in the area of the upper deck which had been designed to accept the davit. (Defs.' 56.1 ¶ 17.) Upon opening the hole in the upper deck, Piles physically observed the aluminum plate embedded within the upper deck in that area. (Defs.' 56.1 ¶ 18.) Piles then applied adhesive and, using "sheetmetal" screws, he screwed the top plate of the davit into the upper deck and the embedded, doughnut-shaped aluminum plate. (Id.) After he installed the top plate on the upper deck, Piles then installed the base plate on the lower deck. (Defs.' 56.1 ¶ 19.) To do so, he applied adhesive under the base plate and used "[i]nch and a quarter stainless steel" self-tapping, sheetmetal screws which he screwed into the lower deck. (Id.) Piles testified that he thought he was screwing into an aluminum plate that he believed was embedded in the fiberglass deck. (Defs.' 56.1 ¶ 20.) Although he had pre-screwed the holes into the lower deck, Piles did not recall if he observed any metal shavings. (Id.) Moreover, although Piles acknowledged that he can generally feel if he is hitting metal while drilling such holes, he could not recall if he had felt metal when he pre-drilled the holes into the lower deck. (Id.) As such, Piles acknowledged that he did not know whether he was screwing into a fiberglass mat, plywood, or anything else as he installed the base plate on the lower deck. (Id.) Piles did not use any "through bolts" or other anchoring in installing the davit's base plate on the lower deck. (Defs.' 56.1 ¶ 21.) When asked if he could have through-bolted the base plate, Piles stated that there was no room on the underside of the lower deck to have done so. (Id.) As noted, however, the manufacturer uses through bolting and an aluminum backing plate in mounting the base plate during post-manufacture davit installations on the subject Carver boat. (Defs.' 56.1 ¶ 22.) According to plaintiff Joseph Burke, after the davit's mounting apparatus failed, it was reinstalled by another davit company, which installed a large metal plate underneath the bottom plate of the davit and through-bolted the davit's bottom plate to the metal plate underneath. (Id.)
SIBS asserts that Piles admitted that SIBS had no direct involvement in the manner of the installation of the subject davit. (Defs.' 56.1 ¶ 23.) Plaintiffs contend, however, that an SIBS employee named "Joey"*fn2 directed Piles where to install the davit and, therefore, SIBS should be considered as being involved in the installation. (Pls.' Response to Defs.' 56.1 ¶ 23.) However, according to the Affidavit of Joseph "Joey" Deluca, who was the Parts Manager for SIBS in 2000 and responsible for ordering the davit from Quick Lift, his involvement with the davit ended when Quick Lift took the davit out of his parts department on the date of the installation. (Defs.' 56.1 ¶ 24.) Indeed, Deluca stated that he never saw the location on the boats where the davits were to be installed, and he never gave any direction to Quick Lift regarding the means, manner or method of their davit installation. (Id.) Piles testified, however, that "Joey" told him that the boat was reinforced and instructed Piles as to the location for the installation. (Piles Dep. 41:19-22; 42:19-23; 92:3-10, Mar. 22, 2007.) Piles did nothing to confirm "Joey's" statement that the deck was reinforced, i.e., he did not contact the manufacturer. (Defs.' 56.1 ¶ 27.) Neither Piles nor Quick Lift maintained a library of manufacturer's plans, specifications or instructions regarding the different boats on which davits were installed. (Id.)
On April 19, 2005, Maria Burke was allegedly injured when the davit's bottom mounting apparatus failed while lifting a dinghy out of the water. (Defs.' 56.1 ¶ 6.) According to plaintiffs' expert, Jonathan J. Howe, Accredited Marine Surveyor, he inspected the subject boat and davit on May 4, 2005, which is approximately two weeks after the April 19, 2005 accident. (Defs.' 56.1 ¶ 28.) He estimated that the total weight of the dinghy was approximately 500 pounds, which was within 800-pound nominal lifting capacity of the davit. (Id.) Howe's report concluded as follows:
In conclusion, it is my opinion that the failure of the davit was due to poor installation of the davit base, including use of self-tapping screws, minimal diameter of the base plate, poor adhesion of the polyurethane adhesive to the fiberglass and especially, lack of thru bolts and a backing plate. The davit itself did not fail, rather the installation was at fault.
On August 5, 2005, plaintiff filed a complaint against defendants Quick Lift and SIBS, alleging a maritime tort claim against both defendants for negligent installation, and a derivative claim for loss of consortium. Specifically, the complaint alleges, among other things, the following: "SIBS, acting through Quick Lift, and Quick Lift, had a duty to the Burkes to properly install the davit. They breached that duty, and the Burkes have suffered damages that SIBS's and Quick Lift's negligence proximately has caused . . . ." (Compl. ¶ 34.) The complaint asserted two claims against SIBS - namely, negligence (Count One) and breach of warranty (Count Two). On June 8, 2006, the Court "so ordered" a stipulation discontinuing the breach of warranty cause of action with prejudice. Therefore, the only remaining claim against SIBS is negligence.
On October 12, 2005, Quick Lift filed a third-party complaint against Carver, alleging that any damages suffered by the Burkes were caused by the third-party defendant Carver.
On July 14, 2006, defendants SIBS and Quick Lift moved to dismiss the Burkes' complaint. On July 14, 2006, third-party defendant Carver moved to dismiss Quick Lift's third-party complaint and, in a separate motion, to impose sanctions against Quick Lift for filing a frivolous pleading. On November 16, 2006, the Court denied the motion to dismiss by defendants SIBS and Quick Lift, denied third-party defendant Carver's motion to dismiss the third-party complaint, and denied Carver's motion for sanctions against Quick Lift, Inc.
On November 19, 2007, a stipulation and order of dismissal was entered discontinuing the third party action against Carver.
On December 21, 2007, defendant SIBS filed a motion for summary judgment on the remaining negligence claim against it. The motion was fully submitted on February 1, 2008 and oral argument took place on April 4, 2008.
The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts ... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).
Defendant SIBS argues that it is not liable for the actions of Quick Lift because Quick Lift is an independent contractor. Plaintiff contends, however, that SIBS is liable because it was negligent in selecting, instructing, and supervising Quick Lift as the independent contractor. For the reasons discussed below, the Court concludes that there are disputed issues of material fact that prevent summary judgment on the negligence claim as to SIBS.
"It is fundamental that to recover in a negligence action a plaintiff must establish that the defendant owed him a duty to use reasonable care, and that it breached that duty." Turcotte v. Fell, 68 N.Y.2d 432, 437, (N.Y. 1986). "In the absence of a duty, as a matter of law, no liability can ensue." Gonzalez v. Pius, 525 N.Y.S.2d 868, 869 (App Div. 1988). Under New York law, "[t]he general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts." Rosenberg v. Equitable Life Assur. Soc., 79 N.Y.2d 663, 668 (N.Y. 1992); see also Chainani v. Board of Educ. of N.Y., 87 N.Y.2d 370, 380-81 (N.Y. 1995) ("Ordinarily, a principal is not liable for the acts of independent contractors in that, unlike the master-servant relationship, principals cannot control the manner in which the independent contractors' work is performed."). The courts have acknowledged three exceptions to this general rule. In particular, "[a] party who retains an independent contractor can be held liable for the independent contractor's negligent acts where: (1) the party negligently selected, instructed, or supervised the contractor; (2) the employment was for work that is inherently dangerous; and (3) the party was under a specific nondelegable duty." Longview Fibre Co. v. CSX Transp., Inc., 526 F. Supp. 2d 332, 339 (N.D.N.Y. 2007) (citing Kleeman v. Rheingold, 81 N.Y.2d 270, 274 (N.Y. 1993) (citing sources)).
With respect to first category, as the New York Court of Appeals noted in Kleeman, "although often classified as an `exception,' this category may not be a true exception to the general rule, since it concerns the employer's liability for its own acts or omissions rather than its vicarious liability for the acts and omissions of the contractor." Kleeman, 81 N.Y.2d at 274 n.1; accord Becker v. Poling Transp. Corp., 356 F.3d 381, 389 (2d Cir. 2004).
In the instant case, as clarified at oral argument, plaintiff is proceeding under the above-referenced first theory of liability outlined under the New York law in connection with the work of an independent contractor - namely, negligent selection, supervision, and instruction. It is to this issue that the Court will now turn.*fn3
A. Negligent Selection, Interference/Instruction, and Supervision
Plaintiffs contend that Quick Lift should not be deemed an independent contractor because SIBS interfered in the work of Quick Lift by negligently instructing the Quick Lift employee as to the proper manner to install the davit, including a representation that the installation location was reinforced. Specifically, plaintiffs allege that Quick Lift relied entirely on representations by SIBS' employee named "Joey" in determining where and how to install the davit. (Pls.' Memorandum of Law, at 4.) Plaintiffs also assert that SIBS negligently selected and supervised Quick Lift. As discussed below, this claim survives summary judgment.
(1) Negligent Interference/Instruction
Courts have held that an employer may be liable for the acts of an independent contractor "where a party interferes with the contractor's work or directs how a part of the work should be done and such interference or direction is a proximate cause of injury to others." Horn v. State, 297 N.Y.S.2d 795, 798 (App. Div. 1969): cf. Toscarelli v. Purdy, 629 N.Y.S.2d 833, 836 (App. Div. 1995) (holding that submission of its general policy guidelines to subcontractors did not constitute sufficient control); Beach v. Velzy, 238 N.Y. 100, 104 (N.Y. 1924) ("That appellant gave some directions, not as to method or means of doing the work, but as to the work to be done, does not change the relation of the parties. He did little more than to furnish some verbal specifications for the roofing, leaving to claimant control over the time, method, and means of doing the work.") "Such liability is premised on the fact that, where the employer directs the employees of the independent contractor to work in ways other than those the independent contractor has knowledge of or approves, harms resulting therefrom should be compensated by the controlling or interfering employer and not the subordinate independent contractor." Waite v. Am. Airlines, Inc., 73 F. Supp. 2d 349, 356 (S.D.N.Y. 1999).
Plaintiffs argue that Piles, the installer for Quick Lift, relied on the statements of "Joey," an SIBS employee, as to the location of the davit installation and the reinforcement of the boat. Plaintiffs contend that, as a result of this reliance, Piles installed the davit in an inappropriate manner which lead to its failure. Specifically, plaintiffs point to testimony from Piles at his deposition that "Joey told me that it was reinforced." (Piles Dep. 118:5-10, Mar. 22, 2008.) Piles further emphasized his reliance on "Joey" in the following deposition testimony:
Q: So if I understand you, other than your own expertise, the only person that gave you information was Joey From Staten Island Boat Sales?
A: Correct.
Q: You didn't get any information from Carver is that correct?
A: I felt there was no need when Joey is the service manager and he deals with Carver.
(Piles Dep. 62:7-15, Mar. 22, 2007.) Similarly, Piles further testified:
Q: Did you actually go down below deck to see if it was possible?
A: No, I didn't. I opened the door and I looked. There was no access. Joey told me there was no access. That was reinforced by installing on top. There was no way to get underneath that area because of the plumbing.
Q: Again based upon what Joey told you, you basically assumed that the deck of the boat where the base plate was installed was going to be adequate for this job?
A. Correct.
(Piles Dep. 63:15-64:2, Mar. 22, 2007.) When questioned as to the manner of installation with regard to the screw compatibility, Piles testified:
Q: Did you do anything to determine what screws were going into?
A: I went and I put them in because Joey told me it was reinforced.
(Piles Dep. 57:14-17, Mar. 22, 2007.) SIBS argues that, although SIBS may have told Piles where on the boat the davit was intended to be placed, SIBS never instructed Piles as to the manner of installation. (Defs.' Reply ¶ 8.) SIBS further notes that Piles stated that no one from SIBS helped him with the actual installation itself. In particular, Piles testified:
Q: Did Joey participate with you in actually screwing the base plate in?
A: No.
Q: So were you the one who did the installation . . . .
(Piles Dep. 59:13-24, Mar. 22, 2007.)
Moreover, SIBS submitted an affidavit from one of its employees, Joseph "Joey" DeLuca, who stated, "I never told anyone from Quick Lift how to do their job. I never gave any direction or control of the means, manner or method of installation to anyone from Quick Lift." (DeLuca Aff.)
Although SIBS has submitted the DeLuca Affidavit to rebut the testimony of Piles, the Court cannot conclude, under a summary judgment standard, that plaintiffs' negligent interference/instruction claim must fail as a matter of law. Any issues regarding Piles's credibility cannot be resolved by this Court. See, e.g., Vital v. Interfaith Med. Center, 168 F.3d 615, 622 (2d Cir. 1999) ("Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment. Any weighing of the evidence is the prerogative of the finder of fact, not an exercise for the court on summary judgment."); see also Curry v. City of Syracuse, 316 F.3d 324, 333 (2d Cir. 2003) ("[I]t is well established that `[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.'") (quoting Fischl v. Armitage, 128 F.3d 50, 55-56 (2d Cir. 1997)); see also Huff v. UARCO, Inc., 122 F.3d 374, 385-86 (7th Cir. 1997) ("We do not imply that plaintiffs have a strong case but rather only that they have enough of a case to go to a jury.").
Moreover, although SIBS argues that liability is precluded because even under Piles's version "Joey" did not assist in the installation itself, the Court disagrees. Viewing all facts in the light most favorable to plaintiffs (including drawing all reasonable inferences in plaintiffs' favor), a reasonable jury could find that Piles relied on the directives of SIBS employee "Joey" as to the reinforcements and location of installation and, thus, is liable because of its negligent interference/instruction regarding the installation of the davit, even though Piles performed the actual installation.
B. Negligent Selection and Supervision
Plaintiffs also contend that, in addition to providing negligent instruction, SIBS was negligent in hiring and supervising Quick Lift with respect to the installation of the davit.
Under New York law, it is well-settled that "an employer has the right to rely on the supposed qualifications and good character of the contractor, and is not bound to anticipate misconduct on the contractor's part, the employer is not liable on the ground of his having employed an incompetent or otherwise unsuitable contractor unless it also appears that the employer either knew, or in the exercise of reasonable care might have ascertained, that the contractor was not properly qualified to undertake the work." Maristany v. Patient Support Servs., Inc., 693 N.Y.S.2d 143, 145 (App. Div. 1999). Thus, "[t]o hold a party liable under theories of negligent hiring, negligent retention, and negligent supervision, a plaintiff must establish that the party knew or should have known of the contractor's propensity for the conduct which caused the injury." Bellere v. Gerics, 759 N.Y.S.2d 105, 107 (App. Div. 2003) (citation omitted).
In the instant case, it is undisputed that, although Piles had done some 300 davit installations over the course of his 10-year career, he had never installed a davit on a Carver boat and, thus, did not know how davits had been installed by Carver on its own boats. SIBS correctly points out that there is no evidence that Piles, or anyone else, ever informed SIBS of this lack of experience as to the installation of davits on Carver boats. However, in considering this evidence, one must also consider, as discussed supra, the interactions between Piles and the SIBS employee "Joey" during the installation of the davit on SIBS's premises. In particular, Piles testified as to his conversations with Joey in which Joey told him, among other things, that there was no access underneath the area because of plumbing and that it was reinforced by installing the davit on top. (Piles Dep. 63:15-64:,1 Mar. 22, 2007.) Piles also noted in his deposition, when asked if he obtained any information from Carver, that he "felt there was no need when Joey is the service manager and he deals with Carver." (Piles Dep. 62:7-15, Mar. 22, 2007.) Therefore, again viewing the evidence in the light most favorable to the non-moving party, a reasonable jury could conclude that it should have been clear to Joey, based upon Piles's discussion with him about how to install the davit, that Piles lacked the experience or expertise to perform such installation on a Carver boat. Although defendants have pointed to evidence in the record to undermine that argument by plaintiffs, as with the negligent interference/instruction theory, there is sufficient evidence to survive summary judgment on the negligent hiring and supervision theories of liability.
For the reasons stated above, defendants' motion for summary judgment is denied.
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by Sarah hadhija
we used a fake rubber dog poo to fool our english and business studies masters (who are brothers).Unfortunately, each time they reached the spot where the poo was placed, they side stepped it.
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United States District Court, Third Circuit
November 14, 2013
NEVEL HELSOP, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
KEVIN McNULTY, District Judge.
Petitioner, Nevel Helsop, is currently a state prisoner at the East Jersey State Prison in Rahway, New Jersey. Mr. Helsop is a native of Jamaica and is currently serving a thirty year sentence for murder and other charges. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In the petition, Mr. Helsop challenges an order of removal against him that was entered after he was convicted for murder. For the following reasons, the habeas petition will be dismissed for lack of jurisdiction.
Mr. Helsop was convicted in state court of murder, criminal trespass, unlawful possession of a weapon and possession of a weapon for an unlawful purpose.[1] Thereafter, Mr. Helsop was ordered removed to his country of citizenship, Jamaica, because he was convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).
Mr. Helsop's appeal to the Board of Immigration Appeals was ultimately unsuccessful. In 2001, he sought habeas relief in this Court under 28 U.S.C. § 2241. (See Civ. No. 01-2909.) That 2001 habeas petition sought relief from the order of removal. On March 2, 2004, the Court denied the 2001 habeas petition, concluding that the immigration authorities did not violate Mr. Helsop's constitutional rights by ordering his removal. Mr. Helsop did not appeal that decision.
On October 2, 2013, the Court received this habeas petition from Mr. Helsop. In this petition, Mr. Helsop requests that the Court vacate his order of deportation and grant asylum based on extraordinary circumstances. Specifically, Mr. Helsop asserts that, if he is removed to Jamaica, his life is in danger at the hands of the family of his wife, whom he murdered.
With respect to screening the instant petition, 28 U.S.C. § 2243 provides in relevant part:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
As petitioner is proceeding pro se, his petition is held to less stringent standards than those pleadings drafted by lawyers. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) ("It is the policy of the courts to give a liberal construction to pro se habeas petitions.") (internal quotation marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) ("we construe pro se pleadings liberally.") (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nevertheless, "a district court is authorized to dismiss a [habeas] petition summarily when it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court[.]" Lonchar v. Thomas, 517 U.S. 314, 320 (1996).
On May 11, 2005, the REAL ID Act was enacted. It provides:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section. For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms "judicial review" and "jurisdiction to review" include habeas corpus review pursuant to section 2241 or Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).
8 U.S.C. § 1252(a)(5) (emphasis added). REAL ID's modifications of former law "effectively limit all aliens to one bite of the apple with regard to challenging an order of removal, in an effort to streamline what the Congress saw as uncertain and piecemeal review of orders of removal, divided between the district courts (habeas corpus) and the courts of appeals (petitions for review)." Bonhonmetre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005) (citation omitted). Accordingly, the REAL ID Act effectively strips a District Court of jurisdiction to review a habeas petition challenging an order of removal. See Urquiaga v. Hendricks, No. 12-2368, 2012 WL 5304206, at *2 (D.N.J. Oct. 25, 2012) (citing Khouzam v. Attorney Gen. of United States, 549 F.3d 235, 244-45 (3d Cir. 2008); Appiah v. United States Customs & Immigration Serv., No. 11-317, 2012 WL 4505847, at *3 (D.N.J. Sept. 25, 2012); Gallego-Gomez v. Clancy, No. 11-5942, 2011 WL 5288590, at *2 (Nov. 2, 2011), aff'd, 458 F.App'x 91 (3d Cir. 2012) (per curiam); Calderon v. Holder, No. 10-3398, 2010 WL 3522092, at *2 (D.N.J. Aug. 31, 2010)); see also Duvall v. Attorney Gen. of United States, 436 F.3d 382, 386 (3d Cir. 2006) ("The sole means by which an alien may now challenge an order of removal is through a petition for review directed to the court of appeals.") (citation omitted); Jordon v, Attorney Gen. of United States, 424 F.3d 320, 326 (3d Cir. 2005) ("[T]he [REAL ID] Act expressly eliminated district courts' habeas jurisdiction over removal orders.").
There is one important distinction to note. An alien challenging the legality of his detention (as opposed to an order of removal) can still petition a district court for a writ of habeas corpus. See Bonhonmetre, 414 F.2d at 446 n.4.
In this case, Mr. Helsop's petition expressly seeks this Court to review his order of removal. Indeed, he seeks an order vacating his order of removal based on alleged extraordinary circumstances. The REAL ID Act strips this Court of jurisdiction to consider such a habeas petition.
Whenever a civil action is filed in a court that lacks jurisdiction, "the court shall, if it is in the interests of justice, transfer such action... to any other such court in which the action... could have been brought at the time it was filed." 28 U.S.C. § 1631. Before the REAL ID Act was enacted, Mr. Helsop filed a habeas petition in this Court challenging his order of removal that was denied. (See Civ. No. 01-2909 Did. Nos. 6 & 7.) As Mr. Helsop unsuccessfully sought review of his order of removal previously, the Court finds that it is not in the interest of justice to transfer this action to the Third Circuit as a petition for review. My decision not to transfer this action to the Third Circuit does not prevent Mr. Helsop from separately filing a petition for review in the Third Circuit if he wishes to do so. I express no opinion on the merits of such a petition.
Mr. Helsop has also requested the appointment of counsel. He does not have a constitutional right to counsel in habeas proceedings. See Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991), superseded on other grounds by statute, 28 U.S.C. § 2254. However, 18 U.S.C. § 3006A(a)(2)(B) provides that the court has discretion to appoint counsel where "the court determines that the interests of justice so require..." In Reese, the Third Circuit explained that in determining whether counsel should be appointed, a court "must first decide if the petitioner has presented a nonfrivolous claim and if the appointment of counsel will benefit the petitioner and the court. Factors influencing a court's decision include the complexity of the factual and legal issues in the case, as well as the pro se petitioner's ability to investigate facts and present claims." Reese, 946 F.2d at 263-64. In this case, the Court finds that the appointment of counsel is not warranted, because there is no nonfrivolous claim; there is no claim at all. This Court lacks jurisdiction to consider the habeas petition.
For the foregoing reasons, the habeas petition will be dismissed because the Court lacks jurisdiction. An appropriate order will be entered.
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Stephanie Vogler's place in Stayle at Home Magazine - Photos by Janis Nicolay Holiday decorating ideas
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The Cavision 95mm Hot Mirror Filter incorporates a dielectric mirror within the filter to combat infrared light pollution that becomes noticeable when making long exposures with a digital camera. This situation is also naturally prevalent when photographing near strong sources of infrared, such as fires and at sunset. The hot mirror filter effectively cuts out infrared wavelengths but does not interfere with visible red wavelengths. This filter a diameter of 95mm and is constructed from 30-layer coated optical glass.
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Intermittent Renewables Can't Favorably Transform Grid Electricity
Many people are hoping for wind and solar PV to transform grid electricity in a favorable way. Is this really possible?
Many people are hoping for wind and solar PV to transform grid electricity in a favorable way. Is this really possible?
Innovative government policies have helped propel Texas into the forefront of wind energy generation in the U.S. But the main impetus for the Lone Star State's flourishing wind sector is the revenue it has generated for landowners and local communities.
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On August 6, I wrote a post called Making Sense of the US Oil Story, in which I looked at US oil. In this post, I would like to look at other sources of US energy.
We spoke with Chris Nelder in Extraenvironmentalist episde #76. This is the first part of a transcript prepared by EE listener Scott.
A couple of decades who could have imagined that a gust of wind wafting across a Wyoming plain could power an air conditioner as far off as Southern California? But it very well may be happening soon.
Wind turbines can produce electricity for 25 years before needing an upgrade, according to new research out of the United Kingdom.
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Where renewables do the most good isn't necessarily where they are the most productive.


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Leica X1 Review
|19 Previous
20 Compared to (JPEG)
|21 Next
Compared to... Canon Powershot G11
Here we're comparing the X1 to arguably the most fully-featured 'enthusiast' small-sensor compact, the Canon Powershot G11, which uses a much smaller (1/1.7", 7.6 x 5.7mm) sensor and sports a very useful 28-140mm equivalent zoom lens. The G11 is pretty similar in size and portability to the X1, so here you can see what (if anything) the X1's larger sensor buys you in terms of image quality.
Studio scene comparison (JPEG)
This is our standard studio scene comparison shot taken from exactly the same tripod position. Lighting: daylight simulation, >98% CRI. Crops are 100%. Ambient temperature was approximately 22°C (~72°F).
Leica X1 vs. Canon Powershot G11
Camera settings:
- Leica X1: Manual exposure, ISO 100,
JPEG Super Fine, Manual WB, Default Parameters (Standard), Self-Timer
- Canon Powershot G11: Manual Exposure, ISO80, JPEG Fine, Manual WB, Default Parameters (Standard), Self-Timer
Leica X1
Canon Powershot G11
4.8 MB JPEG (4272 x 2856)
Manual, 1/30sec, F7.1, ISO 100
2.5 MB JPEG (3648 x 2736
Manual, 1/60 sec, F4, ISO 80
At the cameras' respective base ISOs, the most visible difference is again the Leica's higher-than-usual sharpening but relatively low saturation. Even with a little sharpening, though, the G11 struggles to render the very finest low contrast detail, likely due to a combination of noise reduction and diffraction. (Note this G11 sample is shot at a focal length of 18mm wide open at F4; but even this gives results comparable to using F11 on APS-C, or F18 on full frame - distinctly into diffraction softening territory).
- 15 Photographic tests (Lens)
- 16 Photographic tests
- 17 Compared to
- 18 Compared to (JPEG)
- 19 Compared to (JPEG)
- 20 Compared to (JPEG)
- 21 Compared to (RAW)
- 22 Compared to (RAW)
- 23 Compared to (RAW)
- 24 Compared to (Higher ISO)
- 25 Compared to (Resolution)
- 26 Compared to (Resolution)
- 27 Conclusion
- 28 Samples
Mar 28, 2011
Dec 18, 2009
Sep 9, 2009
Dec 17, 2012
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FANWOOD - A BMW lost control on a Fanwood street and went airborne, eventually landing in a home Friday afternoon.
Witnesses say the black car was apparently speeding eastbound on Paterson Road went it went through a stop sign and onto a front lawn. It was traveling so fast, it passed over two parked cars and crashed into a home two houses down.
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Significant roles
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|Property type
|Minimum Stay
|3 - 21 nights
Great walking country with beach, cliff, riverside and woodland walks all close by. An ideal location with riding, surfing and golf all nearby. . Close to the coast. This spacious semi-detached farmhouse provides an excellent base for a family holiday. It lies in a quiet location on a sheep and beef farm and has stunning views across farmland towards the coast. The nearest beach and cliff walks are just 11/2 miles and can be reached by walking through the pretty lanes across the owner's fields. On the way you can enjoy far reaching views and woodland walks beside the river. The large lawned garden edging across the little used lane from the house provides a great spot for ball games and letting off steam. The property has storage facilities for surf boards and bikes, and ample room to store motorbikes within the grounds. An ideal location with something for everyone, with riding, surfing, water sports and golf all within easy reach. Shop 41/2 miles, pub 2 miles.. Ground floor: Living room. Dining room. Kitchen. First floor: 3 bedrooms: 2 double, 1 twin. Bathroom with shower over bath and toilet.. Oil central heating, electricity, bed linen included. Towel hire. Cot. High chair. Two Freeview TVs. Video. DVD. CD. iPod dock. Electric cooker. Microwave. Washing machine. Use of owner's tumble dryer. Wi-fi. Barbecue. Parking (2 cars). Cycle store.
*Plus compulsory or optional charges based on actual occupancy or consumption. The payment has to be made in the currency offered by the property manager, before use of conversion tool. Payments in other currencies have to be negotiated beforehand with the property manager. The currency conversion tool is provided for your convenience only and is non-binding.


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The estate tax was created for several reasons – to raise revenue from those with the greatest ability to pay, and to encourage charitable giving and put a brake on the concentration of wealth and power. Unfortunately, America is rapidly becoming divided between the extremely rich and everyone else. The top 1% owns 37% of the nation's total wealth; the bottom 60% owns less than 2% of it. Huge family fortunes are passed down from generation to generation, creating a new American aristocracy.
Revenues generated by the estate tax – just $8.5 billion in 2012, less than 1% of the estimated $1.2 trillion passed down to heirs that year – are desperately needed to help fund essential services enjoyed by all.
There are numerous ways to strengthen the estate tax. One that Americans for Tax Fairness supports is the Responsible Estate Tax Act, introduced by Senator Bernie Sanders, as a small step to level the playing field and create shared prosperity for all Americans.
MoveOn.org published this Estate Tax video as a part of their series: Ten Ideas to Save the Economy, in partnership with Robert Reich.
"The roughly $22 billion a year the tax pulls in is less than 1% of all federal revenue."
Letter strongly urging to oppose H.R. 1105, legislation that would repeal the federal estate tax and give a huge tax cut to the wealthiest Americans..
Both the U.S. Senate and the U.S. House of Representatives have passed budget blueprints that would slash $5 trillion in benefits and services that mostly support working families and communities.
The federal estate tax is a levy on the intergenerational transfer of wealth.
The week of April 13th the U.S. House of Representatives will vote to repeal the federal estate tax.
Letter I urging opposition to H.R. 1105, the Death Tax Repeal Act.
Letter urging cosponsor the Responsible Estate Tax Act, sponsored by Senator Sanders.
Income and wealth inequality in the United States are at their highest levels since the 1920's.
It doesn't have to be like this.
The federal estate tax, also known as the inheritance tax, is primarily paid by the estates of multi-millionaires and billionaires before their assets are passed to their heirs.
The federal estate tax is a tax on property (cash, real estate, stock, or other assets) transferred from deceased persons to their heirs.
New data from the IRS show that only 0.1 percent — just one-tenth of one percent — of deaths in the U.S. in 2011 resulted in federal estate tax liability in 2012.


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Here's another simple and delicious recipe made with canned stuff. When I went back to Malaysia in April, I got more canned food from my mum. Luxurious and expensive canned goodies she got during Chinese New Year to be exact. Although my mum has 3 kitchen areas at home now - dry, wet and outdoor - she doesn't cook! Don't ask me why, all I know is that she has "huge" plans for when she retires...one day. Not complaining, I'm happy to be the sole beneficiary of all her gourmet goodies =)I'm sending this to Ruth at Once Upon a Feast who is hosting this week's Presto Pasta Night.
My current favourites...
you hear me mum, my favourites =)
Combine them both and you get yourself a yummy and comforting dish in less than 30 mins.
My current favourites...
you hear me mum, my favourites =)
Combine them both and you get yourself a yummy and comforting dish in less than 30 mins.
Ingredients: serves 2
- 2 portions noodles (I used misua)
- 1 can abalone superior stock
- 1/2 can water - measured using stock can
- 2 stalks spring onion - cut into small rings
- 2 dried Chinese mushrooms - rinsed, soaked until softened
- 1/2 head Chinese cabbage - sliced
- 1 handful goji berries
- 1 can abalone - thinly sliced
- Pour the can of abalone stock and extra half a can of water (or you can use the water used for soaking the mushrooms) into a pot.
- Add spring onions (reserve a bit of the green parts for garnishing), Chinese mushrooms, cabbage and goji berries.
- Bring to boil. Lower heat to simmer until cabbage is softened.
- While soup is simmering, cook noodles according to manufacturer's instructions. Place noodles into two separate bowls.
- Place slices of abalone onto the noodles.
- When cabbage is cooked, season to taste.
- Pour soup onto noodles.
- Sprinkle some spring onions onto soup.
- Enjoy!


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Manischewitz Sold to Equity Firm
The Manischewitz Company, well known for its wine and Passover foods, has been sold a week before the Passover holiday.
Sankaty Advisors, an arm of the private equity firm Bain Capital, purchased the Newark, N.J.-based purveyor of kosher foods for an undisclosed price, the Associated Press reported Tuesday, less than a day after the deal had been first disclosed by The New York Times.
Under its new owner, Manischewitz is expected to promote kosher as an indication of quality food rather than just a religious designation, according to the Times.
"This investment reflects our confidence in the Manischewitz brands and team," Sankaty Advisors said in a statement last week. "Manischewitz has earned a position as one of the most highly recognized brands in the world, and it has distinguished itself through a passionate commitment to producing the highest quality kosher products possible. We believe Manischewitz is well positioned to grow due to rising mainstream interest in kosher foods."
Decades ago, Manischewitz was virtually the only wine that was poured into cups at the Shabbat table every Friday night and for the Seder on the first night of Passover.
Its unbelievably sweet Concord wine made it the butt of jokes, but since there was not much else around in the kosher wine business, the sticky liquid was accepted as the standard.
The Manischewitz Company was founded by Rabbi Dov Behr Manischewitz, in 1888. It later began producing matzo, gefilte fish and borscht.
"Manischewitz has earned a position as one of the most highly recognized brands in the world, and it has distinguished itself through a passionate commitment to producing the highest quality kosher products possible," Sankaty Advisors said in a statement, disclosing no terms of the deal.
JTA contributed to this report.Jewish Press Staff
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Imported and Older Comments:
Their quality has gone down over the years. Yehuda is better
the writer might be confusing the Manischevitz that makes matza with the company of the same name that makes wine
they're 2 different companies – like lows the hotel chain and lowes the appliance store
My favourite wine 🙂
It was very bad wine. It is just as well the the Mormons bought the company.


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