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September 8, 2009
GOOGLA HOME DECOR LLC, GENE KRUGLYAK, PETER PAPAYIANNIS, AND MARIANNA RAY, PLAINTIFFS,v.IGOR UZKIY, ACE DECORE INTERNATIONAL, AND ORDER INC., ANNA SHAMRAY, NICK FANDA, IGOR STAPANOV, JON DOE(S), AND DEITSCH REALTY CO., DEFENDANTS.
On March 13, 2009, plaintiffs Gene Kruglyak, Peter Papayiannis, Marianna Ray, and Googla Home Décor, LLC ("Googla") commenced this action against defendants Igor Uzkiy, Ace Decore International Inc. ("Ace"), Anna Shamray, Nick Fanda, Igor Stapanov, Deitsch Realty Co. ("Dietsch Realty"), and other asyet-unknown defendants. Plaintiffs assert claims of (1) false designation of origin and/or false descriptions pursuant to 15 U.S.C. § 1125(a); (2) false designation of origin and/or false descriptions leading to trademark dilution pursuant to 15 U.S.C. § 1125(c); (3) common law trademark infringement; (4) trademark and trade name violations of §§ 133, 392-b, and 396-396t of New York's General Business Law; (5) trademark dilution and injury to business reputation pursuant to § 360-l of New York's General Business Law; (6) violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.; (7) breach of fiduciary duty; (8) injurious falsehood; (9) interference with contract and/or inducing breach of contract; (10) interference with prospective economic advantage; (11) misappropriation; (12) forcible or unlawful entry and/or wrongful eviction; (13) fraud; (14) negligent misrepresentation; (15) trespass to land; (16) trespass to chattels; and (17) conversion and/or wrongful taking. Plaintiffs seek (but have not moved for) a preliminary injunction, eviction of defendants, the immediate return of plaintiffs' property, compensation for lost and damaged property, an accounting and payment of gains, punitive damages, treble damages under RICO, attorney's fees, costs, and interest. Presently before this Court is defendants' motion to dismiss this action, or in the alternative, to stay this action and compel arbitration of plaintiffs' claims, pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 3 and 4. For the reasons that follow, the motion is granted.
The following facts are taken from the complaint. For purposes of this motion, the allegations of the complaint are assumed to be true. See Marcus v. Masucci, 118 F. Supp. 2d 453, 454 (S.D.N.Y. 2000) (citing Cargill Intern. S.A. v. M/T PAVEL DYBENKO, 991 F.2d 1012, 1019 (2d Cir. 1993)).
Plaintiff Googla is a limited liability company formed and organized under New York law, with its principal place of business in Brooklyn, New York. Compl. ¶ 17. Plaintiff Gene Kruglyak is a New York resident who currently holds a 50% stake in Googla and serves as Googla's "executive officer." Id. ¶ 18. Plaintiff Peter Papayiannis is a New York resident and a holder of 25% of Googla's shares, who formerly served as Googla's President and Director of Management Information Systems. Id. ¶ 19. Plaintiff Marianna Ray, also a New York resident, was a 25% Googla shareholder until she transferred her 25% share to plaintiff Kruglyak in the beginning of 2007. Id. ¶ 20.
Defendant Igor Uzkiy is a Russian citizen who maintains a residence in Brooklyn, New York, and is authorized to work and conduct business in the United States. Id. ¶ 21. Defendant Uzkiy wholly owns Defendant Ace. Defendant Ace is a domestic business corporation formed and organized under New York law, with the same principal place of business as plaintiff Googla in Brooklyn, New York. Id. ¶ 22. Defendant Anna Shamray is a New York resident who serves as Ace's Operating Manager and holds a power of attorney to act on Ace's behalf. Id. ¶ 23. Defendant Nick Fanda, also a New York resident, works as a sales manager for Ace, but has represented himself to be a Googla sales manager on at least one occasion. Id. ¶ 24. Defendant Igor Stapanov is a New York resident and an Ace employee. Id. ¶ 25. Defendant Deitsch Realty is a corporation formed under New York law, with its principal place of business located in Brooklyn, New York. Defendant Deitsch Realty is the landlord or owner of plaintiff Googla's principal place of business. Id. ¶ 26.
In April 2005, plaintiffs Kruglyak, Papayiannis, Ray, and defendant Uzkiy formed Googla. Id. ¶¶ 17, 28. According to the complaint, at formation, Googla's shares were split evenly between each of plaintiffs Kruglyak, Papayiannis, Ray, and defendant Uzkiy. Id. ¶ 30. At the beginning of 2007, plaintiff Ray transferred her shares to plaintiff Kruglyak. Id. ¶ 30. As a result of the transfer, plaintiffs allege that the current apportionment of Googla shares is as follows: plaintiff Kruglyak, 50%; plaintiff Papayiannis, 25%; plaintiff Ray, 0%; defendant Uzkiy, 25%. Id.
According to the complaint, Googla's Operating Agreement requires the agreement of a majority of shares to commit Googla to any action. Id. ¶ 33. At no time did defendant Uzkiy control a majority of shares. Id. ¶ 38. Thus, defendant Uzkiy could not take actions on behalf of Googla without the consent of any of the individual plaintiffs. Id. The individual plaintiffs did not grant defendant Uzkiy any operational control of Googla. Id. ¶ 34. The arrangement between the individual plaintiffs and defendant Uzkiy was that the individual plaintiffs would be responsible for the day-to-day operations of Googla, while defendant Uzkiy would remain in Russia and provide capital. Id. ¶ 40.
From Googla's formation until October 2007, plaintiff Papayiannis was charged with "executive decision making" power. Id. ¶ 35. In October 2007, plaintiff Papayiannis resigned his position, and plaintiff Kruglyak assumed executive authority. Id. ¶¶ 19, 35. Plaintiff Kruglyak is currently the sole Googla shareholder with this authority. Id. ¶ 36.
At some point in time, the individual plaintiffs created certain trade names, trade dress, service marks, logos and emblems, including the trade names "Googla Home Décor" and "Googla," as well as a "Googla" logo. Id. ¶¶ 41-42; see also id. Ex. A. (copy of "Googla" logo). According to the complaint, in New York, the name "Googla" has become closely associated with and identified by the public as plaintiff Googla. Id. ¶ 44. While the individual plaintiffs did not register Googla's trademarks and service marks with the United States Patent and Trademark Office, they allege they own a common law trademark for the Googla mark and variations thereof. Id. ¶ 46.
In June 2008, defendant Uzkiy began "operating" Ace, an entity existing at the same location as Googla and wholly owned and controlled by defendant Uzkiy, allegedly for the purpose of seizing Googla's assets. Id. ¶¶ 57, 64. Defendant Uzkiy represented to the individual plaintiffs that defendant Ace would function under Googla's control either as a subsidiary or an associated corporation. Id. ¶¶ 57, 59, 62. At defendant Uzkiy's urging in the fall of 2008, plaintiff Kruglyak hired defendant Shamray to be Googla's office assistant, unaware that defendant Shamray possessed power of attorney to act on defendant Ace's behalf. Id. ¶¶ 67, 68. Under the guise of providing secretarial services, defendant Shamray observed and reported on Googla's and plaintiff Kruglyak's activities to defendant Uzkiy on a near-hourly basis on her cell phone. Id. ¶¶ 70, 71. Shortly thereafter, plaintiff Kruglyak terminated defendant Shamray's employment because of her constant phone calls and failure to perform substantive work for Googla. Id. ¶ 72. Defendant Shamray then began working for defendant Ace as its secretary and manager. Id. ¶ 73. During this time, some or all of the defendants took stock from Googla's inventory, copied its corporate records and client contact lists, and misappropriated Googla's confidential and proprietary information for defendant Ace's benefit without plaintiffs' knowledge or permission. Id. ¶ 74.
In October 2008, defendant Ace began selling items from Googla's inventory, representing itself as an agent of Googla, without plaintiffs' knowledge or authorization and without compensating plaintiffs. Id. ¶¶ 92, 108-09. Defendants appear to have to sold at least $13,188 of Googla's furniture and inventory in October 2008, at least $8,264 in November 2008, at least $36,226 in December 2008, and at least $40,000 in each of January and February 2009. Id. ¶¶ 93-95, 97. Defendants continue to sell Googla's inventory in other states and overseas. Id. ¶¶ 96, 98-99. The amount sold appears to be increasing from month to month. Id. ¶ 96. To facilitate sale of Googla's inventory, defendant Ace has also provided business cards to its employees indicating that they work for Googla. Id. ¶ 105.
On or about October 27, 2008, some or all of the defendants entered into a side deal with defendant Deitsch Realty to transfer Googla's lease to defendants. Id. ¶ 81. Prior to the side deal, plaintiffs Kruglyak and Googla were renting Googla's business premises from defendant Deitsch Realty, with the lease terminating on or about June 30, 2008. Id. ¶ 75. Plaintiffs Kruglyak and Googla negotiated a lowered monthly rent of $9,000 to continue the rental relationship. Id. ¶ 76. While waiting to execute an updated lease memorializing the rent reduction, plaintiffs believed the lease was in effect and continued making rental payments for the warehouse and office premises. Id. ¶¶ 78, 79. However, pursuant to the terms of the side deal between defendant Ace and defendant Deitsch Realty, defendant Deitsch Realty transferred possession of Googla's premises to defendant Ace for the period starting in November 2008 through September 2009 for a monthly rent of $15,000. Id. ¶ 82. Defendant Deitsch Realty also transferred the benefit of Googla's $42,000 security deposits to defendant Ace. Id. ¶ 83. Plaintiffs never agreed to the side agreement between defendant Ace and defendant Deitsch Realty. Id. ¶ 85.
On January 27, 2009, defendants sent out one or more mass mailings to Googla's entire client list, including false statements indicating that defendant Ace was now "performing" the work that Googla had contracted for and directions to contact defendant Igor Stepanov, an Ace "kitchen representative," "in order to negotiate future work, contract and financial matters at your project." Id. ¶¶ 129, 131-32, 137. Through these mailings, defendants sought to leverage half-completed projects to force clients to pay more for services already contracted for with Googla. Id. ¶ 136. These letters, all issued under the name of defendant Shamray as Ace's General Manager, had a substantially damaging effect on Googla's goodwill and reputation in the business community. Id. ¶¶ 139, 142.
On January 31, 2009, plaintiffs Papayiannis and Ray saw a booth containing a large Googla sign, trademark, logo, and other Googla trade dress at a multi-day trade show they were attending in New Jersey. Id. ¶¶ 111, 115. The booth contained Googla product catalogs and marketing materials that plaintiffs Papayiannis and Ray had created years ago, as well as a "floor model" furniture set that plaintiff Papayiannis had designed and worked on. Id. ¶¶ 116, 118. Plaintiffs were not aware of and had not authorized the use of Googla's name and other materials at this trade show. Id. ¶¶ 119, 120. On February 2, 2009, plaintiff Papayiannis saw defendants Shamray and Fanda outside the trade show convention floor and confronted them about their use of Googla materials. Id. ¶¶ 122, 123. Defendants Shamray and Fanda "mumbled something unintelligible" and "hurried away." Id. ¶ 124. Plaintiffs Papayiannis and Ray later obtained a copy of the trade materials that defendants Shamray and Fanda were using to sell Googla's inventory at the trade show. Id. ¶ 125. Defendant Fanda had also been passing out business cards identifying himself as Googla Home Décor's Sales Manager. Id. ¶ 126.
At some point during the week of February 2, 2009, defendants changed the locks on Googla's offices and warehouse. Id. ¶¶ 143, 147. Since that time, plaintiffs have been unable to access Googla's office and inventory. Id. ¶ 143. Defendants have effectively seized Googla's property, including, but not limited to: (1) proprietary client information records and contact lists; (2) corporate files necessary to continue business operations; (3) electronic and hard copies of proprietary sales and inventory systems and other intellectual property created by and for Googla; (4) proprietary trade and advertising materials; (5) proprietary furniture designs and product designs; (6) all of Googla's inventory, valued in excess of $1.4 million, consisting mostly of furniture, assembly materials, equipment, and all other tangible aspects of Googla's business operations. Id. ¶¶ 146, 147. Defendants have sold and are continuing to sell Googla's inventory, acting as both Googla and Ace. Id. ¶ 149. Employees of defendant Ace have told plaintiff Kruglyak that he "would have to pay" to reacquire Googla's inventory. Id. ¶ 153. In addition, the individual plaintiffs are now unable to recover certain amounts owed to them by plaintiff Googla, including payment for services rendered, indemnification for certain legal fees, indemnification for potential contingent damages from other legal action, and other costs that were to be paid over time by Googla's business operations. Id. ¶¶ 151, 152.
Plaintiffs commenced this action on March 13, 2009. This motion followed on May 28, 2009.
I. Standard for Motion to Dismiss Pursuant to the FAA
The FAA states that "an agreement in writing to submit to arbitration an existing controversy arising out of... a contract, transaction, or refusal [to perform the whole or any part thereof], shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. When a party moves to dismiss or to stay proceedings and compel arbitration, a court must make the following determinations: (1) whether the parties agreed to arbitrate; (2) the scope of the arbitration agreement; (3) whether Congress intended the federal statutory claims asserted by plaintiff, if any, to be nonarbitrable; and (4) whether the court should stay the balance of the proceedings pending arbitration if not all claims are arbitrable. JLM Industries, Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 169 (2d Cir. 2004).
Here, there is no dispute that the Operating Agreement contains a valid agreement to arbitrate. Nor do the parties contend that Congress intended any of their federal statutory claims to be nonarbitrable.*fn1 Accordingly, I turn directly to the remaining consideration.*fn2
II. Scope of Arbitration Agreement
At issue here is whether the arbitration clause in the Operating Agreement covers the instant dispute. In accordance with the FAA's expression of a strong federal policy favoring arbitration, courts "construe arbitration clauses as broadly as possible and resolve any doubts concerning the scope of arbitrable issues in favor of arbitration." Oldroyd v. Elmira Sav. Bank, FSB, 134 F.3d 72, 76 (internal quotation marks and citations omitted). "[L]anguage excluding certain disputes from arbitration must be 'clear and unambiguous' or 'unmistakably clear[.]'" Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 847 (2d Cir. 1987).
A. Broad v. Narrow Nature of Clause
As an initial matter, I must determine whether the arbitration clause is "broad" or "narrow." A broad clause "creates a presumption of arbitrability which is only overcome if it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that [it] covers the asserted dispute." Oldroyd, 134 F.3d at 76 (internal quotation marks and citation omitted). A "clause... submitting to arbitration '[a]ny claim or controversy arising out of or relating to th[e] agreement,' is the paradigm of a broad clause." Collins & Aikman Prod. Co. v. Bldg Sys., Inc., 58 F.3d 16, 20 (2d Cir. 1995) (quoting relevant arbitration clause). Conversely, the phrase "arising under" is the only phrase recognized by the Second Circuit Court of Appeals as possibly showing the intent of the parties that an arbitration clause be narrowly construed. Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 252 F.3d 218, 225 (2d Cir. 2001).
The arbitration clause in Googla's Operating Agreement states that "[a]ny dispute, controversy, or claim arising out of or in connection with this Agreement... shall, upon the request of any party involved, be submitted to, and settled by, arbitration[.]" See Def. Memo. Ex. A (copy of Operating Agreement) at ¶ 23. This clause employs the "arising out of or relating to" language (albeit here, the precise language is "arising out of or in connection with") employed in the paradigmatically broad clause described in Collins. Accordingly, the Operating Agreement's arbitration clause is broad, and therefore, a strong presumption of arbitrability exists.
B. Factual Analysis
In determining whether a dispute falls within the scope of an arbitration clause, courts must "focus on the factual allegations in the complaint rather than the legal causes of action asserted." Genesco, Inc., 815 F.2d at 846. The Court of Appeals has also directed courts to consider whether the dispute implicates issues of contract construction or the parties' rights and obligations under the contract. Collins, 58 F.3d at 23. If the answer is yes, then the dispute, even if it appears collateral, falls within the scope of the arbitration clause.
Id. Conversely, claims that present questions involving neither construction of the contract nor the parties' rights and obligations under it are beyond the scope of the arbitration clause. Id. This inquiry is fact-driven and respects the parties' reasonable expectations in forming the contract.*fn3
Examining the factual allegations in the Complaint, I find that the present dispute concerns the parties' rights to perform certain actions under the Operating Agreement. Each of plaintiffs' claims derives from the argument that defendants are not authorized under the Operating Agreement to perform any of the actions to which plaintiffs object because defendants never controlled a majority of Googla's shares.*fn4 While defendant Uzkiy maintains that, contrary to plaintiffs' allegations, he did at some point control a majority of the shares, this issue of fact does not change the nature of the dispute between the parties.
Because each of plaintiffs' claims is premised upon this core dispute, the resolution of which requires construction of the Operating Agreement, each of plaintiffs' claims falls within the scope of the arbitration clause.
Plaintiffs nevertheless attempt to rebut the strong presumption of arbitrability created by the arbitration clause's broad construction. First, they claim that the Operating Agreement does not specify how the partnership is to be managed, which they argue is at the heart of the dispute.*fn5 However, the Operating Agreement does in fact address how the partnership is to be managed: it requires the agreement of a majority of shares to commit Googla to any action. Compl. ¶ 33. Accordingly, even if plaintiffs' characterization of the substance of their claims is correct, their claims still fall within the scope of the arbitration clause.
Second, plaintiffs argue that at least one of their claims arises out of a personal promise made by defendant Uzkiy to plaintiff Kruglyak to fund Googla's business in exchange for plaintiff Kruglyak's marketing expertise, which promise was allegedly made entirely separately from the promises made in the Operating Agreement. According to plaintiffs, the breach of fiduciary duty claim arises from this unrelated promise, and therefore, the fiduciary duty claim is not within the scope of the Operating Agreement's arbitration clause. This argument is unpersuasive. In the Complaint, plaintiffs' breach of duty claim alleges that defendant Uzkiy owed Googla a fiduciary duty as a minority shareholder and that he owed plaintiffs Kruglyak and Papayiannis duties as they were "other shareholders of Googla." Compl. ¶¶ 222, 223, 225. Nowhere does the Complaint allege that defendant Uzkiy owed a fiduciary duty to plaintiffs on the basis of a promise outside of his relationship to plaintiffs as Googla shareholders.*fn6 Therefore, because the factual allegations in the Complaint illustrate a dispute that implicates the parties' rights and obligations under the Operating Agreement, resolving all doubts in favor of arbitration, I find that plaintiffs' claims fall within the scope of the arbitration clause.
Accordingly, because I conclude that all of plaintiffs' claims are subject to arbitration under the terms of the Operating Agreement, I dismiss plaintiffs' complaint in its entirety. See, e.g., Sinnett v. Friendly Ice Cream Corp., 319 F. Supp. 2d 439, 445 (S.D.N.Y. 2004) ("There is no reason for this Court to stay this action because all of [plaintiff's] claims are subject to resolution through arbitration, rather than litigation, and there are no remaining claims properly before this Court.").
For the reasons stated above, defendants' motion to dismiss is granted. The Clerk is directed to transmit a copy of the within to the parties and the assigned Magistrate Judge.
Charles P. Sifton United States District Judge
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September 13, 2012
MARC MYERSONv.DARLING INTERNATIONAL INC., ET AL.
Priority Send Enter Closed JS-5/JS-6 Scan Only CIVIL MINUTES - GENERAL
Victor Paul Cruz Courtroom Clerk COUNSEL PRESENT FOR PLAINTIFF: Not Present
Not Present Court Reporter
Not Present
PROCEEDINGS (in chambers): ORDER REMANDING CASE TO LOS ANGELES COUNTY SUPERIOR COURT [Docket No. 1]
matter is before the Court on Defendant Darling International Inc.'s ("Defendant") Notice of Removal of Action Pursuant to 28 U.S.C. §§ 1332, 1441(a) and (b) ("Notice"), filed on August 15, For the following reasons, the Court REMANDS this action to Los Angeles Superior Court.
alleges the following facts. Defendant employed Plaintiff as an Account Manager from approximately July 2011 to February 24, 2012. (Notice Ex. 1 ("Compl.") ¶¶ 6-7, Aug. 15, 2012, No. 1.) Defendant terminated Plaintiff's "employment shortly after he reported a work-related resulting in a physical disability." (Compl. ¶ 7.) Plaintiff filed a complaint in Los Angeles County Superior Court against Defendant on July 10, 2012. Plaintiff alleges two causes of (1) Employment Discrimination - Physical Disability; and (2) Wrongful Termination in Violation of Public Policy. (See generally Compl.) On August 15, 2012, Defendant removed this to the Central District of California pursuant to 28 U.S.C. §§ 1332, 1441(a)-(b). (Notice 1:24-28, Aug. 15, 2012, ECF No. 1.)
Court raises the issue of subject matter jurisdiction sua sponte. The Court finds that Defendant has failed to establish subject matter jurisdiction under § 1332(a)(1) and § 1441(a) because it does not state facts adequate to support its assertion of complete diversity, or that the amount in controversy exceeds $75,000.
A. Sua Sponte Consideration of Subject Matter Jurisdiction
Ninth Circuit has held that "a court may raise the question of subject matter jurisdiction, sua , at any time during the pendency of the action." Snell v. Cleveland, Inc., 316 F.3d 822, (9th Cir. 2002). A district court must remand the case "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c).
Court finds it appropriate to determine, sua sponte, whether subject matter jurisdiction exists in the present case.
B. Legal Standard for Proper Removal
§ 1441, a defendant may remove an action to federal court only if the federal court would had jurisdiction if the action had been brought there originally. 28 U.S.C. § 1441(a). There two traditional bases for federal subject matter jurisdiction: (1) federal question; and (2) complete diversity. 28 U.S.C. §§ 1331, 1332(a). Because Plaintiff does not assert a federal claim pursuant to § 1331, only diversity of citizenship under § 1332(a) is at issue in this case. Section 1332(a)(1) vests federal courts with jurisdiction over actions where there is complete diversity of citizenship among the parties and "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs." 28 U.S.C. § 1332(a)(1). "The amount in controversy includes the amount of damages in dispute, as well as attorney's fees, if authorized by statute or contract." Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005).
well established, however, that courts "strictly construe the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id. "The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (internal quotation marks omitted).
C. Diversity of Citizenship
burden of persuasion for establishing diversity jurisdiction rests on the party asserting it, and diversity jurisdiction must be supported by competent proof. Hertz Corp. v. Friend, 130 S. Ct.
1194-95 (2010). The party asserting diversity jurisdiction must establish "complete" diversity, meaning that no plaintiff may be a citizen of the same state as any defendant. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978).
Defendant's Notice fails to establish complete diversity because it does not state facts adequate support its assertion of Defendant's citizenship. Defendant states that "Defendant Darling
International, Inc., was, at the time of filing the Complaint, and still is, a resident and citizen of the of Delaware, and Plaintiff alleges as such in his Complaint." (Notice ¶ 7.) Defendant also "Defendant Darling International, Inc., is a limited liability company organized under the of the State of Delaware" (Notice ¶ 8) and that its "principal place of business is in Irving, Texas" (Notice ¶ 9).
For diversity purposes, a corporation is considered to be a citizen of both the state in which it is incorporated and the state in which it has its principal place of business. 28 U.S.C. § 1332(c). limited liability company, such as Defendant Darling International Inc., however, is a citizen of state of which its members are citizens. Johnson v. Columbia Props. Anchorage, L.P., 437 894, 899 (9th Cir. 2006). Defendant has failed even to identify the members of its limited company, much less establish the citizenship of each individual member. Without knowing identity or citizenship of the members of Darling International Inc., the Court cannot possibly determine whether complete diversity of citizenship exists amongst the parties. Defendant's bare assertions as to the citizenship of the parties fall short of meeting its burden to establish diversity
citizenship in this case.
D. Amount in Controversy
if Defendant had adequately alleged complete diversity of citizenship amongst the parties, it has failed to establish that the Court has jurisdiction under § 1332(a)(1). Under § 1332(a)(1), Defendant has the burden of proving that the amount in controversy in the present action exceeds jurisdictional minimum of $75,000, exclusive of interests and costs. In this regard, Defendant
to a preponderance of the evidence standard of proof. The Court concludes Defendant not carried its burden of proving, by a preponderance of the evidence, that the amount in controversy exceeds the jurisdictional minimum.
1. Preponderance of the Evidence Standard of Proof
"[W]here a plaintiff's state court complaint does not specify a particular amount of damages,
. . . defendant bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds [the jurisdictional minimum]." Sanchez v. Monumental Life Ins.
, 102 F.3d 398, 404 (9th Cir. 1996). The preponderance of the evidence standard of proof requires the defendant to prove that it is "more likely than not" that the amount in controversy exceeds the jurisdictional minimum. Id.
the Complaint, Plaintiff states the types of damages he seeks. (See generally Compl.) The Complaint, does not, however, specify dollar amounts for the alleged damages. Nor does Plaintiff any other facts that clearly establish the amount in controversy for these claims. To the contrary, the Complaint lists the damages he sought, "the precise amount to be proven at the time trial, but exceeding the jurisdictional minimum of this court." (Compl. ¶ 18.) Therefore, the only alluded to by Plaintiff is the $25,000 jurisdictional minimum required by the state court in which he filed his complaint. (See Compl. 1.)
Because the Complaint does not specify a particular amount of damages, Defendant has the burden of proving, by a preponderance of the evidence, that the amount in controversy exceeds
jurisdictional minimum.
2. Failure to Establish the Requisite Amount in Controversy
carry its burden of proving the amount in controversy, a defendant must prove "the underlying supporting its assertion that the amount in controversy exceeds [the jurisdictional minimum]." , 980 F.2d at 567. "Conclusory allegations as to the amount in controversy are insufficient."
Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090-91 (9th Cir. 2003). Accordingly, defendant "may rely on calculations to satisfy [its] burden so long as [its] calculations are good reliable estimates based on the pleadings and other evidence in the record." Ellis v. Pac. Bell Tel. Co., No. CV 10-01141, 2011 WL 499390, at *2 (C.D. Cal. 2011).
an attempt to carry its burden, Defendant contends that Plaintiff's claim for damages exceeds $75,000. (Notice ¶ 15.) Defendant argues that if "Plaintiff was to succeed on his claims, the backpay award alone to date would be $21,249.99 (6 months of his annual salary), exclusive of bonus or interest." (Notice ¶ 15(b).) In addition, Defendant argues that Plaintiff seeks punitive damages and attorneys' fees exceeding $25,000 (Notice ¶¶ 15(a)), and that Plaintiff may entitled to damages from emotional distress (Notice ¶ 15(d)), commissions, and other employment benefits (Notice ¶¶ 15(b)-(c)).
Defendant's assertions may be true, it must prove "the underlying facts supporting its assertion." Gaus, 980 F.2d at 567. Defendant provides factual support for its assertion that may be entitled to $21,249.99 in backpay, but fails to provide support for its other assertions. To support its calculation of $21,249.99 in damages for backpay, Defendant cites the Declaration of Julie Brewster, "Human Resources Manager for Defendant Darling International, (Notice ¶ 15(b); Decl. of Julie Brewster ¶ 1, Aug. 15, 2012, ECF No. 3.) Ms. Brewster states at the time Plaintiff's employment with Defendant ended on February 24, 2012, Plaintiff was earning an annual salary of $42,500.00. (Brewster Decl. ¶ 2.) The backpay damages of $21,249.99 are calculated as six months of Plaintiff's annual salary. (Notice ¶ 15(b).) Defendant therefore sufficiently alleged that Plaintiff may be entitled to $21,249.99 in backpay damages.
Defendant fails to provide any evidence to sufficiently allege any other amount of damages, including emotional distress damages, punitive damages, attorneys' fees, and costs of suit. See Assocs. v. Hartford Accident & Indem. Co., 994 F. Supp. 1196, 1201 (N.D. Cal. 1998) ("Defendant's burden cannot be met simply by pointing out that the complaint seeks punitive damages and that any damages awarded under such a claim could total a large sum of . . . ."). Neither the Complaint nor any other pleadings establish the amount of any of these damages, and Defendant has not cited to or filed any declarations or affidavits that attest these damages. Defendant also has not cited any cases awarding such damages in similar
Defendant merely recounts the type of damages at issue (See Notice ¶ 15(a)), and then "[c]onclusory allegations as to the amount in controversy." Matheson, 319 F.3d at 1090-Defendant has therefore failed to prove the amount that may be owed to Plaintiff for emotional distress damages, punitive damages, attorneys' fees or costs of suit.
Defendant also does not provide sufficient evidence to support its claim that Plaintiff was entitled commissions or other employment benefits. Defendant states that "Plaintiff was eligible to participate in a commission and incentive program, health care insurance program, 401k program vacation plan." (Compl. ¶ 15(c).) Ms. Brewster states that:
Plaintiff was eligible to receive commissions and incentive pay up to a maximum of 25% of an employee's total W-2 earnings which would be $10,625.00 in Plaintiff's case. Darling employees also receive health care fringe benefits at a company cost of approximately $10,500.00 per employee, two weeks' vacation per year, and are eligible for up to a maximum 1.5% 401k match and year end 401k contribution.
(Brewster Decl. ¶ 3.) Although Defendant may have been eligible to participate in these programs, Plaintiff provides no evidence that Defendant actually participated in any or all of these programs. For example, it provides no evidence of the amount of any commissions earned by during his employment with Defendant, or of the amount of any 401k contribution. Defendant has therefore offered no proof to support the figures cited by Ms. Brewster and has to prove the amount of any damages that may be owed to Plaintiff as a result of his participation in Defendant's employer-provided programs.
sum, the only amount of damages Defendant has sufficiently alleged is that Plaintiff may be entitled to is $21,249.99 in backpay. Defendant has therefore failed to prove, by a preponderance the evidence, that the amount in controversy exceeds $75,000, exclusive of interests and costs.
the Court does not have jurisdiction under § 1441(a) and § 1332(a)(1).
the foregoing reasons, the Court REMANDS this case to the Superior Court of California, County of Los Angeles.
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Preachers of L.A. which will take us into the lives of 6 pastors including Deitrick Haddon, Bishop Noel Jones, Pastor Wayne Chaney and a few others who drive luxury cars, rock rapper jewelry and live the good life. I know what you must be thinking, not another "reality show". But this seems very interesting, just to take an inside look at the lives of some of the people who sit on one of the highest pedestals in society. Check out the new trailer for Oxygen's new series.
COMMENTARY: Revelations or Ridiculousness? Black Pastors Star in Reality TV Show
Summer Music Festival
comments – Add Yours


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How cute is Mikey?
His current rating is 3.87 out of 5 with 54 vote(s).
All about Mikey
Pet Tip
Bladder stones in dogs – Pet tip 127
Bladder stones, or uroliths, are increasingly common in pets. Often the first signs of uroliths is straining to urinate and blood in the urine, or recurrent bladder infections. If a stone is small enough to leave the bladder but large …
- Owner:
- Christine Parks
- City:
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- Province, Country:
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- Type/Breed:
- Staffordshire Bull Terrier
- Date of Birth:
- May 12,2002
- Sex:
- Male
- Height:
- Not Provided
- Weight:
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- Coat Colour:
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I just turned one year old recently, and I'm a little stinker! I love to pounce on the floor and chase shadows. I take up a good portion of my parents' bed at night, but they love it - they spoil me rotten! It's a good thing I'm starting Advanced training classes soon - I'm a little out of control! I enjoy carrots and clementines, but olives are so gross! My favorite toys are my red Kong ball and my Gallileo bone. Dad likes to buy me basketballs to chase, but I puncture them in a matter of minutes - I get very upset that I can't catch the ball! I love to run, run, and run some more in my Grandpa's big back yard. My favorite lounging spot is somewhere in the sunshine, and my most embarrassing moment was when I farted and woke myself up. I couldn't believe it came from me! My most cherished memory was the day Mom and Dad came to take me to my new home - and they've cherished me ever since.


text: FCC Extends Analog TV Support Until 2012Jason Chen9/12/07 3:46pmFiled to: Home EntertainmentAnalogCableCable CompaniesDigitalDigital CableFccTopanalog cable351EditPromoteShare to KinjaToggle Conversation toolsGo to permalink The previously mandated analog TV cutoff date of 2009 has just been extended by the FCC, meaning that even though broadcasters (the people like NBC who send out the shows) will be dropping the analog feed, cable operators (the local cable companies that take your money every month) will still have to support old ass analog TV sets. They have two ways do to it. Advertisement The cable operators, come Feb 2009, can either convert digital SD signals to analog SD signals and throw it across their cable lines to you, or they can give all their grandma and grandpa customers with old sets a digital to analog converter box. It's a tradeoff between sucking up more of their bandwidth or giving away free equipment.Come 2012, five years from now, the FCC will make another decision whether to force cable operators to support analog signals. [Ars Technica]Gear from Kinja Deals Bestsellers: Amazon Dash ButtonsClean Your Tongue, Not Just Your TeethAdd The First Six Star Wars Films To Your Digital Library For $69Reply35 repliesLeave a reply


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Reviewed By Edwin T (Port Moody, BC) Reviewed for a 2004 Mazda 6 —12/6/2007 10:28 AM
When they came they looked pretty plain like someone just trimmed some big rubber matt. But once they were in the car, they fit pretty good. They did cut them specifically for my car, albeit slightly off in my opinion. Possibly because I have a slightly different body style (hatchback vs sedan). But they really do make the interior of the car look much more presentable since they blend in very well. It doesn't look like you have big fat rubber mats. Definitely will stick to these as they do a great job of trapping snow and dirt. Haven't had them through heavy snow, but they've looked good under light snowfalls and heavy rains.


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Orange Pineapple Cran-Relish
Wake up your palate to this wonderful holiday treat. A welcome addition on any holiday table.
Featured Pinch Tips Video
- 1
- navel orange
- 3 c
- frozen cranberries thawed
- 3 c
- fresh or crushed pineapple
- 2 Tbsp
- honey
- 1 Tbsp
- light brown sugar
- 1/2 tsp
- salt
- pinch of pepper
Directions Step-By-Step
11. Grate 2 teaspoons zest from orange. Remove remaining peel and pith from orange, and discard. Holding orange over a bowl, cut between membranes, allowing segments and juice to fall into bowl. Squeeze juice from membranes into bowl, and discard membranes. Slice segments crosswise. Add zest.
2Pulse half the cranberries in a food processor until finely chopped. Add remaining cranberries, and pulse just until the second addition is coarsely chopped. Add to orange segments and zest, along with pineapple, honey, sugar, salt, and pepper, and gently combine. Cover, and refrigerate overnight (or up to 3 days). Serve chilled or at room temperature.
About this Recipe
Course/Dish: Other Sauces
Other Tags: Quick & Easy, Healthy
Hashtags: #holiday, #pineapple, #orange, #relish, #Cranberry


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Mamanista! » Entries tagged with "Reusable Lunch Bags"
We love the "new again" trend of packing school lunches in reusable containers–it is a little way even small children can push back against a society addicted to disposables. Plus, many of the containers like the ones at Kids Konserve are so eco-chic! By using a reusable lunch kit, you reduce waste and save money. Just imagine, no more paper bags, plastic baggies, or tin foil–I'll bet your lunch will even taste better, knowing that you … Read entire article »
Filed under: Eco-Friendly, Featured, Pre-schoolers, School Aged Children
Pip, Pip and Green-You-Go
"Waste not, want not," mom always said. So, mom entrepreneur Christina started Citizen Pip and created a complete, "muck-free", reusable lunch system. This stylish Soup to Nuts Kit includes everything you need to pack a meal, from the non-squishable sandwich-sized container, to the insulated soup jar. You'll also find utensils, cloth napkins, snack-sized containers, and a water bottle. And it is all certified to be lead-free, phthalate-free and BPA-free by a CPSIA-accredited lab. As an addition, I … Read entire article »
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Eco-Chic Reusable Bags from Mimi the Sardine
Mimi the Sardine makes gorgeous children's products manufactured in the USA from exuberantly playful eco-coated, soil and water resistant, cotton fabrics from Sweden. The cotton fabric is coated with acrylic, not PVC. I checked out Mimi the Sardine's adorable Lunch Bug, a sweet little lunch bag with a carry handle. We like the idea of these eco-chic bags that are so much more attractive than brown paper bags, keep food fresher, and don't contribute to landfill. The bags … Read entire article »
Filed under: Back to School, Bags (Children), Contests, Eco-Friendly, Fair Trade, Made in the USA


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Last Updated: 12/5/2016 2:22 PM
Description for 1185 DUNDEE Avenue UNIT B Elgin, IL 60120
Rent Price: $12
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From I-90 & Rte 25 (Dundee Ave), south to property.
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Elgin Real Estate
Elgin is located in Illinois. Elgin, Illinois 60120 has a population of 109,513.
The median household income in Elgin, Illinois 60120 is $58,487. The median household income for the surrounding county is $68,674 compared to the national median of $53,046. The median age of people living in Elgin 60120 is 32.5 years.
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Two location-based social services are taking radically different approaches to managing users' check-ins. Loopt has announced a passive service that provides updates without the need to take any action; SCVNGR, meanwhile, requires its users to physically bump their phones together to register a group check-in. "[I]t's more fun than it sounds," promises Jason Kincaid.
Full Story:TechCrunch, Mashable


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L. Tramier & Fils Pommard 1er Cru 2011, Ac
Pinot Noir
Burgundy, France
$51.25 (365098)
89 pts
April 26, 2014
Critic Reviews (2)
John Szabo, MS
A fragrant, earthy, dark brown spice and underbrush-scented Pommard, very much in the appellation register, with...Sign In to see Critic Reviews. Not a Member? Please Sign Up.
David Lawrason
This is a solid if not showy pinot that should go into the cellar for about three years. The fruit is ripe and plummy...Sign In to see Critic Reviews. Not a Member? Please Sign Up.
Similar Pinot Noir
- Domaine Pavelot Aux Gravains Savigny Les Beaune 1er Cru 2013, Burgundy
- Dutton Estate Karmen Isabella Dutton Ranch Pinot Noir 2011, California
- Domaine Michel Juillot Mercurey Les Champs Martin 1er Cru 2012, Burgundy
- Greywacke Pinot Noir 2011, Marlborough
- Domaine D'ardhuy Aloxe Corton Les Chaillots 1er Cru 2012, Burgundy


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Beneficial Games Wagering Standards
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decided: June 8, 1970.
HELLENIC LINES LTD. ET ALv.RHODITIS
Burger, Black, Douglas, Harlan, Brennan, Stewart, White, Marshall, Blackmun
[ 398 U.S. Page 307]
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a suit under the Jones Act*fn1 by a seaman who was injured aboard the ship Hellenic Hero in the Port of New Orleans. The District Court, sitting without a jury, rendered judgment for the seaman, 273 F.Supp. 248. The Court of Appeals affirmed, 412 F.2d 919. The case is here on petition for a writ of certiorari which we granted, 396 U.S. 1000, in light of the conflict between the decision below and Tsakonites v. Transpacific Carriers Corp., 368 F.2d 426, in the Second Circuit.
Petitioner*fn2 Hellenic Lines Ltd. is a Greek corporation that has its largest office in New York and another office in New Orleans. More than 95% of its stock*fn3 is owned by a United States domiciliary who is a Greek citizen -- Pericles G. Callimanopoulos (whom we call Pericles). He lives in Connecticut and manages the corporation out of New York. He has lived in this country
[ 398 U.S. Page 308]
since 1945. The ship Hellenic Hero is engaged in regularly scheduled runs between various ports of the United States and the Middle East, Pakistan, and India. The District Court found that its entire income is from cargo either originating or terminating in the United States.
Respondent, the seaman, signed on in Greece, and he is a Greek citizen. His contract of employment provides that Greek law and a Greek collective-bargaining agreement apply between the employer and the seaman and that all claims arising out of the employment contract are to be adjudicated by a Greek court. And it seems to be conceded that respondent could obtain relief through Greek courts, if he desired.
The Jones Act speaks only of "the defendant employer" without any qualifications. In Lauritzen v. Larsen, 345 U.S. 571, however, we listed seven factors to be considered in determining whether a particular shipowner should be held to be an "employer" for Jones Act purposes:
(1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured seaman; (4) allegiance of the defendant shipowner; (5) the place where the contract of employment was made; (6) the inaccessibility of a foreign forum; and (7) the law of the forum.
Of these seven factors it is urged that four are in favor of the shipowner and against jurisdiction: the ship's flag is Greek; the injured seaman is Greek; the employment contract is Greek; and there is a foreign forum available to the injured seaman.
The Lauritzen test, however, is not a mechanical one. 345 U.S., at 582. We indicated that the flag that a ship flies may, at times, alone be sufficient. Id., at 585-586.
[ 398 U.S. Page 309]
The significance of one or more factors must be considered in light of the national interest served by the assertion of Jones Act jurisdiction.*fn4 Moreover, the list of seven factors in Lauritzen was not intended as exhaustive. As held in Pavlou v. Ocean Traders Marine Corp., 211 F.Supp. 320, 325, and approved by the Court of Appeals in the present case, 412 F.2d, at 923 n. 7, the shipowner's base of operations is another factor of importance in determining whether the Jones Act is applicable; and there well may be others.
In Lauritzen the injured seaman had been hired in and was returned to the United States, and the shipowner was served here. Those were the only contacts of that shipping operation with this country.
The present case is quite different.
Pericles became a lawful permanent resident alien in 1952. We extend to such an alien the same constitutional protections of due process that we accord citizens.*fn5
[ 398 U.S. Page 310]
MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, dissenting.
I dissent from today's decision holding that a Greek seaman who signs articles in Greece for employment on a Greek-owned, Greek-flag vessel may recover under the Jones Act for shipboard injuries sustained while the vessel was in American territorial waters. This result is supported neither by precedent, nor realistic policy, and in my opinion is far removed from any intention that can reasonably be ascribed to Congress.
Section 688 of Title 46, U. S. C., 41 Stat. 1007, the Jones Act, provides:
"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located."
The language of § 688 is, as Mr. Justice Jackson noted in Lauritzen v. Larsen, 345 U.S. 571 (1953), all-embracing. By its terms it is not limited to American
[ 398 U.S. Page 312]
seamen nor to vessels bearing the American flag. Yet despite the sweeping language it can hardly be doubted that congressional concern stopped short of the lengths to which the literal terms of the statute carry the Jones Act. This was emphasized in Lauritzen which pointed out that Congress wrote against a backdrop of "usage as old as the Nation," that "such statutes have been construed to apply only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law." 345 U.S., at 577. This principle the Court reiterated in Romero v. International Terminal Co., 358 U.S. 354 (1959), where we reaffirmed the presumption that domestic legislation has been enacted with "respect for the relevant interests of foreign nations in the regulation of maritime commerce as part of the legitimate concern of the international community." 358 U.S., at 383.
This Court only recently applied this principle in McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), where we were called upon to determine whether labor relations dealing with an alien crew on a foreign-flag vessel, beneficially owned by an American corporation, affected "commerce" within the meaning of the National Labor Relations Act. In holding that the Act was not "intended to have any application to foreign registered vessels employing alien seamen," the Court declined to rely on the beneficial ownership of the vessel and other "substantial United States contacts," including regular visits to the United States and the "integrated maritime operation" of the United Fruit Company, the beneficial owner of the vessel, to override the well-settled principle that the law of the country whose flag a ship flies governs shipboard transactions, absent some "clear expression" from Congress to the contrary. See Wildenhus's Case, 120 U.S. 1 (1887); United States v. Flores, 289 U.S. 137, 155-159 (1933); Cunard Steamship Co. v. Mellon,
[ 398 U.S. Page 313262]
U.S. 100, 124 (1923); cf. Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804).*fn1
The McCulloch case followed a course marked early in our jurisprudence, and, in fact, built upon Lauritzen which had announced that the law of the flag, "the most venerable and universal rule of maritime law," would in Jones Act cases "overbear most other connecting events in determining applicable law . . . unless some heavy counterweight appears." 345 U.S., at 584, 585-586.
Such a counterweight would exist only in circumstances where the application of the American rule of law would further the purpose of Congress. While some legislation in its purpose obviously requires extension beyond our borders to achieve national policy, this is not so, in my opinion, with an Act concerned with prescribing particular remedies, rather than one regulating commerce or creating a standard for conduct.
The only justification that I can see for extending extraterritorially a remedial-type provision like § 688
[ 398 U.S. Page 314]
is that the injured seaman is an individual whose well-being is a concern of this country. It was for this reason that Lauritzen recognized the residence of the plaintiff as a factor that should properly be considered in deciding who is a "seaman" as Congress employed that term in § 688. See D. Cavers, The Choice-of-Law Process 96-97 (1965). In so doing it reflected earlier decisions where recovery was had by resident alien seamen who were serving aboard foreign-flag vessels. See, e. g., Gambera v. Bergoty, 132 F.2d 414 (C. A. 2d Cir. 1942); cf. Uravic v. F. Jarka Co., 282 U.S. 234 (1931).
In the early decisions involving citizen and resident alien seamen serving on foreign vessels, some additional factor, such as the vessel's presence in American waters or beneficial American ownership, was considered to be an element justifying recovery. See Uravic v. F. Jarka Co., supra; Gerradin v. United Fruit Co., 60 F.2d 927 (C. A. 2d Cir. 1932); compare Gambera v. Bergoty, supra, with O'Neill v. Cunard White Star, 160 F.2d 446 (C. A. 2d Cir. 1947). Lauritzen in enumerating these factors ("contacts") as independent considerations, was attempting to focus analysis on those factors that are the necessary ingredients for a statutory cause of action: first, as a matter of statutory construction, is plaintiff within that class of seamen that Congress intended to cover by the statute? and, second, is there a sufficient nexus between the defendant and this country so as to justify the assertion of legislative jurisdiction?*fn2 In other words the Court must define "seaman" and "employer" as those words are used in
[ 398 U.S. Page 315]
§ 688. In this regard the situs of the accident or the vessel's contacts with this country by virtue of its beneficial ownership or the frequency of calls at our ports simply serves as an adequate nexus between this country and defendant to assert jurisdiction in a case where congressional policy is otherwise furthered. But no matter how qualitatively substantial or numerous these kinds of contacts may be, they have no bearing in themselves on whether Jones Act recovery is appropriate in a given instance. For transactions occurring aboard foreign-flag vessels that question should be answered by reference to the plaintiff's relationship to this country. See Note, Admiralty and the Choice of Law: Lauritzen v. Larsen Applied, 47 Va. L. Rev. 1400 (1961).
Viewed in this perspective, today's decision and decisions of several lower courts that have taken the phenomenon of "convenient" foreign registry as a wedge for displacing the law of the flag, see, e. g., Southern Cross Steamship Co. v. Firipis, 285 F.2d 651 (C. A. 4th Cir. 1960); Pavlou v. Ocean Traders Marine Corp., 211 F.Supp. 320 (D.C. S. D. N. Y. 1962); Voyiatzis v. National Shipping & Trading Corp., 199 F.Supp. 920 (D.C. S. D. N. Y. 1961), have, I believe, misconstrued these basic premises on which Lauritzen was founded. This is underscored by the fact that the Lauritzen allusion to the practice of American owners of finding a "convenient" flag "to avoid stringent shipping laws by seeking foreign registration eagerly offered by some countries," 345 U.S., at 587, was prefaced by citation and discussion of Skiriotes v. Florida, 313 U.S. 69 (1941), and Steele v. Bulova Watch Co., 344 U.S. 280 (1952), both of which dealt with the question of when legislative jurisdiction existed to apply domestic law to American nationals abroad. In both cases the application of domestic law
[ 398 U.S. Page 316]
presupposed or construed legislative purpose to be furthered by reaching across the border.*fn3
The Lauritzen statement, lifted out of context, has acquired a dynamism and become the justification for recovery by foreign seamen simply on the ground that convenient "registry" somehow circumvents an obligation that Congress desired to impose on all owners within its jurisdiction.*fn4
[ 398 U.S. Page 317]
This underlies today's decision which relies on the fact that Hellenic Lines is an American-based operation and its vessels would be accorded a competitive advantage over American-flag vessels were we to permit petitioners to avoid responsibility under the Jones Act. Liability is only one factor that contributes to the higher cost of operating an American-flag vessel. Indeed, recognizing the insurance factor, it is doubtful that this factor is a significant contribution to the competitive advantage of foreign-flag ships, especially given the higher crew wages (see 46 U. S. C. § 1132 requiring American crews) and construction costs for American-flag ships, which must be built in American yards if they are to participate in the congressional programs specifically designed to offset the higher costs that the Court today takes as justification for displacing settled international principles of choice of law. See, e. g., 46 U. S. C. § 883 (coastwise trade); 46 U. S. C. § 1180 (subsidy). See generally S. Lawrence, United States Merchant Shipping Policies and Politics 61-67 (1966).
Even were Jones Act liability a significant uncompensated cost in the operation of an American ship, I could not regard this as a reason for extending Jones Act recovery to foreign seamen when the underlying concern of the legislation before us is the adjustment of the risk of loss between individuals and not the regulation of commerce or competition.
[ 398 U.S. Page 318]
Today's decision suggests that courts have become mesmerized by contacts, and notwithstanding the purported eschewal of a mechanical application of the Lauritzen test, they have lost sight of the primary purpose of Lauritzen which, as I conceive it, was to reconcile the all-embracing language of the Jones Act with those principles of comity embodied in international and maritime law that are designed to "foster amicable and workable commercial relations." 345 U.S., at 582. Lauritzen, properly understood, should, I submit, be taken to focus the judicial inquiry on the purpose of Congress and the presence or absence of an adequate basis for the assertion of American jurisdiction, when that purpose may be furthered by application of the statute in the circumstances presented.
Where, as in the case before us, the injured plaintiff has no American ties, the inquiry should be directed toward determining what jurisdiction is primarily concerned with plaintiff's welfare and whether that jurisdiction's rule may, consistent with those notions of due process that determine the presence of legislative jurisdiction, govern recovery. In the case before us, there is no reason to disregard either the law of the flag or plaintiff's contractual undertaking to accept Greek law as controlling, thereby in effect assuming that he signed articles under conditions that would justify disregarding the contractual choice of law. Rhoditis is a Greek national who resides in Greece. Under these circumstances Greek law provides the appropriate rule.
I would reverse the judgment of the Court of Appeals, and hold that the Jones Act affords no redress to this seaman.
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July 21, 2010
JANICE S. MCCLENDON-MCNEIL, APPELLANT,v.BOARD OF REVIEW, RESPONDENT.
On appeal from the Board of Review, Department of Labor, Docket No. 212,182.
Submitted: June 16, 2010
Before Judges Cuff and Fasciale.
Janice S. McClendon-McNeil appeals from a final Board of Review determination that she is disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a). We affirm.
McClendon-McNeil was employed by the New Jersey Association on Correction-Millicent Fenwick House (NJAC) as a case manager. On October 24, 2008, McClendon-McNeil resigned to follow her husband whose job was relocated to South Carolina. Continuing work was available at the NJAC.
On October 26, 2008, McClendon-McNeil filed a claim for unemployment compensation benefits. On December 10, 2008, a deputy claims examiner found that she was disqualified for benefits. He found that:
You left your job on [October 24, 2008] to relocate for personal reasons. Although these reasons are compelling, they are still personal. Therefore, your reasons do not constitute good cause attributable to the work and you are disqualified for benefits.
On December 16, 2008, McClendon-McNeil appealed to the Appeal Tribunal. On March 24, 2009, McClendon-McNeil and a representative of NJAC participated in a telephone hearing. At the hearing, McClendon-McNeil testified that the only reason for leaving work was to relocate to South Carolina with her husband after his job transfer. On March 24, 2009, the Appeal Tribunal found that McClendon-McNeil was disqualified for benefits under N.J.S.A. 43:21-5(a), which provides that a claimant is disqualified from benefits if he or she "le[aves] work voluntarily without good cause attributable to such work . . . ."
On March 30, 2009, McClendon-McNeil appealed to the Board of Review. On May 18, 2009, the Board affirmed the decision of the Appeal Tribunal. This appeal followed.
On appeal, McClendon-McNeil argues that she left her job with NJAC to follow her husband, and she was unable to find employment in South Carolina in her field. She cites N.J.S.A. 43:21-5(a) for support that she is entitled to unemployment benefits.*fn1
Generally, the scope of appellate review of an administrative body's final decision is a limited one. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). A reviewing court must "not upset a determination by [an agency] in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the civil service act." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963) (citing Marro v. Civil Serv. Dep't, 57 N.J. Super. 335, 346 (App. Div. 1959)).
Here, there is no dispute that McClendon-McNeil left her job to move to South Carolina with her husband. The only issue is whether claimant "left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). "A claimant who quits 'has the burden of proving that he did so with good cause attributable to the work.'" Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). A claimant who leaves her employment to move to another state due to the relocation of a spouse does not satisfy the statutory standard. N.J.S.A. 43:21-5(a); N.J.A.C. 12:17-9.1(3)(6). The reason for leaving employment may be a good reason, but it is not a reason attributable to her work.
We, thus, find the Board's decision was not arbitrary, capricious or unreasonable.
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Acer Aspire 5755G-2434G50Mirs
Average of 1 scores (from 1 reviews)
Reviews for the Acer Aspire 5755G-2434G50Mirs
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Single Review, online available, Medium, Date: 10/05/2011
Rating: Total score: 85% performance: 90% display: 80% mobility: 80% ergonomy: 95% emissions: 90%
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Dual-core processor based on the Sandy Bridge architecture with an integrated graphics card and dual-channel DDR3 memory controller. The CPU is clocked at 2.3 GHz (Turbo Boost 2.6-2.9 GHz) and the GPU at 650 (1200 MHz Turbo).
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85%: This rating should be considered to be average. This is because the proportion of notebooks which have a higher rating is approximately equal to the proportion which have a lower rating.
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I Tetti di Roma: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Rome, Italy.
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Huge FEMA Camps being setup in Linden, NJ. Not even a disaster area!!
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They are Federal Emergency Management Camps. There is a planned destruction of our old economy happening and also many natural disasters that will displace many American from their homes. They are more like emergency hotels and spiritual reeducation camps. No need to be alarmed. Just take a number and enjoy 3 hots and a cot.
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[link to www.sfgate.com]
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Washington Post Just Blew The Lid On #PizzaGate Big League
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