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text: What do I do? They took my money and now they don't give me iphone os 3.0. (Yeah I am quite angry) I've tried to do Check for Update but it keeps saying that 2.2.1 is the latest. When I go to the itunes store to buy 3.0... i buy it. And i already bought it. And now it just says you already purchased this and gives me the download button. Either it dos nothing, or downloads 0.4kb. What do i do? I really don't want to have to download directly from apple's servers, but i do want 3.0. So if like a week passes without any luck i guess i'd have to. SO WHAT DO I DO?

subset: commoncrawl


text:
Schonbek Lighting 7847-22S Rivendell Heirloom Gold Wall Sconce
Schonbek Lighting 7847 Wall Sconce features an intricately designed frame of glistening crystal jewels. The unique silhouette of this wall sconce will add a dramatic touch to any space; its striking features and luxurious finish options will truly be an impressive addition to your home.
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text:
4000 Miles: West Coast Premiere of Award-Winning Comic Drama
* Additional fees apply. No coupon or promo codes necessary to enjoy the displayed discount price.
The last date listed for 4000 Miles was Sunday February 10, 2013 / 2:00pm.
Currently at A.C.T.
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A.C.T.'s acclaimed, music-infused adaptation of Dickens' beloved tale returns in a sumptuous… More
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It grappled with very interesting themes,aging,finding adult identity and dealing with loss. The acting was of a high caliber, however the play would have benefited by being 15 minutes shorter as it is written or some themes alluded to should have been fleshed out.
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Fine cast, excellent stage design and direction, but not much of a story to chew on. Emotionally raw and extremely shallow youth arrives at sharp-minded grandmother's New York City apartmet; a little culture clash humor; a final confession of...continued
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good plot, great acting
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Although the set was beautiful, the actors were no better than what I would expect from community theater. They were competent but there was a lack of depth in their portrayals. The play was also a problem. Go if you want to see some light fluff...continued


text:
PDF pending restoration
ERIC Number: ED349284
Record Type: RIE
Publication Date: 1992-Apr
Pages: 62
Abstractor: N/A
Reference Count: 0
Increasing Fidelity between Faculty and Field in Teacher Education--Reconceptualized Institutional Settings, Programs and Roles.
Neil, Roger
The purpose of this paper is to encourage greater interaction between university faculty and field-based teacher education. The paper is organized into four parts: (1) "Teacher Educators--Who Are We?" (describes the evolution of teacher education from 1850 to 1992); (2) "The Alienation of Theory from Practice in Teacher Education: A Schismatic Past and Present"; (3) "Faculty and Field as Complementary Milieus for Teacher Education--a reconceptualization of Institutional Settings, Programs, and Roles"; and (4) conclusion. The paper suggests that school of education faculty refresh and update their classroom knowledge by returning to full classroom responsibilities in order to keep in touch with the reality of the undergraduate candidates' mission of becoming teachers in the schools. Suggestions for further consideration are offered. The paper concludes with 103 bibliographic references. (LL)
Publication Type: Speeches/Meeting Papers; Information Analyses
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Reform Efforts
Note: Paper presented at the Annual Meeting of the American Educational Research Association (San Francisco, CA, April 20-24, 1992).


text:
International Herald Tribune for iPhoneFree
From Paris, Hong Kong and New York, the International Herald Tribune app for iPhone provides a fresh and original take on the worlds daily news. Drawing on its global newsgathering operation with The New York Times, the IHT selects the international
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Law enforcement officers compete in a multi-gun match that's really street-smart
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It's drag-racing on steel! The top action shooters in the world compete
Author Brad Thor applies his interests when it comes to his writing, including
It's classic wheel gun competition at the Smith & Wesson Revolver Nationals.
Steven Crowder hosts his weekly talk show where he encourages a younger


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text:
Weather stations are common projects in DIY area. Sensors are cheap and modular so why not. UC4FUN set up an interesting and complex weather station project that consists of two parts – Arduino UNO as data sender and Raspberry Pi as receiver.
So first o all data transmitter which is built around Arduino. It reads data from several sensors like BMP085 barometer, TMP102 thermometer and HIH403x humidity sensor. Additionally there is a real time clock attached, LCD and user buttons. And finally there is XBee module attached to USART which sends data to another part of station. Receiver uses a Raspberry Pi with another XBee module attached. It pushes data further to Internet via WiFi and logs data to SD card.
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We offer a wide variety of brands many of which we have carried since Audio Ark's inception over 35 years ago. Every brand goes through an extensive auditioning process before taking it's place in one of our sound rooms. We evaluate not only for audio performance but also on the level of support available from the manufacturer.
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Cupcake Carnival Gameplay Tips and Strategies
- App name: Cupcake Carnival
- Developer: DeNA Corp
- Genre: Arcade
- Release: Sep 18, 2014
Let's play Cupcake Carnival on iOS. In this part of the walkthrough, you will learn more tips and tricks while playing the Cupcake Carnival game on the iPhone.
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This page contains Cupcake Carnival video walkthroughs for iOS (iPhone/iPad) called "- ios / android - hd sneak peek trailer" and has been uploaded on Admin official channel at Sep 18, 2014.
Still need help with this level? Here you can ask questions and discuss with other Cupcake Carnival users.
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January 22, 2013
BEN STUCKEY, III, PLAINTIFF,v.ROGER MULCH AND UNKNOWN PARTY, DEFENDANTS.
Plaintiff, who is currently a pretrial detainee at the Jefferson County Justice Center (Jail), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants housed him in unconstitutional conditions and were deliberately indifferent to his serious medical needs.
More specifically, Plaintiff complains that since approximately August 21, 2012, through the date he submitted this action for filing (December 14, 2012), he has been in "D-Block" of the jail, designated for detainees who are non-compliant with jail rules. Plaintiff himself had never had any disciplinary problems, but was assigned there "at the convenience of the County" (Doc. 1, p. 5). D-Block inmates are required to leave their two-man cells at 6:00am and must remain in the jail dayroom until 10:30pm. While in the dayroom, Plaintiff must either stand or walk around on concrete all day, and if he wants to rest, must either sit on a steel stool or lie down on a blanket on the concrete floor. The other ten blocks in the jail allow inmates to freely return to their bunks to sleep, read, or rest.
Plaintiff also asserts that medical care at the jail is inadequate. He references the delay in obtaining emergency medical treatment for a broken arm (which is the subject of an earlier suit filed by Plaintiff, Stuckey v. Mulch, 12-cv-1250-JPG (S.D. Ill., filed Dec. 10, 2012)). He then claims to have received no treatment at all to date "for the other injuries sustained in the second incident" (Doc. 1, p. 5). However, he does not specify what injury he suffered in this "second incident." Nor does he include any facts as to when this injury occurred, what treatment he requested, or which jail staff member(s) he asked for help. He states only that he is at risk of serious complications due to the conditions in the jail.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. After fully considering the allegations in Plaintiff's complaint, the Court concludes that the complaint fails to state a constitutional claim upon which relief may be granted, and it shall be dismissed without prejudice. However, Plaintiff shall be allowed an opportunity to submit an amended complaint, to present any factual allegations that may exist to support his claim that jail officials were deliberately indifferent to his medical needs following his "second" injury (Count 1).
For the Court's convenience, Plaintiff's claim that he has been subjected to unconstitutional conditions of confinement in the D-Block dayroom is designated as Count 2. This count shall be dismissed with prejudice, because the conditions described by Plaintiff do not rise to the level of a constitutional violation.
Claims brought pursuant to § 1983 by a pretrial detainee arise under the Fourteenth Amendment and not the Eighth Amendment. See Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000). Nonetheless, the Seventh Circuit has "found it convenient and entirely appropriate to apply the same standard to claims arising under the Fourteenth Amendment (detainees) and Eighth Amendment (convicted prisoners) 'without differentiation.'" Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (quoting Henderson v. Sheahan, 196 F.3d 839, 845 n.2 (7th Cir. 1999)). Thus, for a claim that conditions of a detainee's confinement amounted to "cruel and unusual punishment," a plaintiff must show that jail officials knew that the plaintiff was at risk of serious harm, and that they disregarded that risk by failing to reasonably discharge the risk. Grieveson v. Anderson, 538 F.3d 763, 771-72, 777-79 (7th Cir. 2008).
Not all prison conditions trigger Eighth Amendment scrutiny -- only deprivations of basic human needs like food, medical care, sanitation, and physical safety. Rhodes v. Chapman, 452 U.S. 337, 346 (1981); see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992). In order to prevail on a conditions of confinement claim, a plaintiff must allege facts that, if true, would satisfy the objective and subjective components applicable to all Eighth Amendment claims. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994); see also Wilson v. Seiter, 501 U.S. 294, 302 (1991). The objective component focuses on the nature of the acts or practices alleged to constitute cruel and unusual punishment. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). The objective analysis examines whether the conditions of confinement exceeded contemporary bounds of decency of a mature civilized society. Id. The condition must result in unquestioned and serious deprivations of basic human needs, or deprive inmates of the minimal civilized measure of life's necessities. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); accord Jamison-Bey v. Thieret, 867 F.2d 1046, 1048 (7th Cir. 1989); Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987). Temporary discomfort and inconvenience do not implicate the constitution. See Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988); Caldwell v. Miller, 790 F.2d 589, 600-01 (7th Cir. 1986).
In addition to showing objectively serious conditions, a plaintiff must also demonstrate the subjective component of an Eighth Amendment claim, in other words, the intent with which the acts or practices constituting the alleged punishment are inflicted. Jackson, 955 F.2d at 22. This requires that a prison official had a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991); see also McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994). The subjective component is satisfied if the plaintiff shows that the prison official acted or failed to act despite the official's knowledge of a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 842 (1994).
The conditions in the D-Block dayroom clearly are stark and uncomfortable. However, nothing in Plaintiff's complaint indicates that these conditions amounted to the kind of "unquestioned and serious deprivation of basic human needs" that would satisfy the objective component of a conditions claim. Nor is there any indication that prison officials placed Plaintiff in D-Block with the intention of punishing him by confining him in those conditions. Further, an inmate does not possess a liberty or property interest in his prison classification or assignment. DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) (citing Montanye v. Haymes, 427 U.S. 236 (1976), and Meachum v. Fano, 427 U.S 215, 223-24 (1976)). It follows that prison or jail officials may assign an inmate to any facility, or to any housing area within a jail, without infringing on the inmate's constitutional rights. Therefore, Count 2 shall be dismissed with prejudice, for failure to state a constitutional claim upon which relief may be granted.
Pending Motion
The motion to appoint counsel (Doc. 2) shall be held in abeyance pending Plaintiff's submission of an amended complaint, as outlined below.
Plaintiff's complaint (Doc. 1) is DISMISSED for failure to state a claim upon which relief may be granted. COUNT 1 (Deliberate Indifference to Medical Needs)is DISMISSED without prejudice. COUNT 2 of the complaint (Conditions of Confinement) is DISMISSED with prejudice.
Should Plaintiff wish to proceed on his deliberate indifference claim in COUNT 1,he shall file his First Amended Complaint, stating any facts which may exist to support a claim of deliberate indifference to his medical condition after his "second" injury, and naming the individual Defendants directly responsible for the alleged deprivations in Count 1, within 35 days of the entry of this order (on or before February 27, 2013). The amended complaint shall not include the claim dismissed in Count 2 above. The amended complaint shall be subject to review pursuant to § 1915A.
An amended complaint supersedes and replaces the original complaint, rendering the original complaint void. See Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint. Thus, the First Amended Complaint must stand on its own, without reference to any prior pleading. Should the First Amended Complaint not conform to the requirements herein, it shall be stricken. Plaintiff must also re-file any exhibits he wishes the Court to consider along with the First Amended Complaint. Failure to file an amended complaint shall result in the dismissal of Count 1 becoming a dismissal with prejudice. Furthermore, because Plaintiff has failed to state any other constitutional claim, if he fails to file an amended complaint or if the amended complaint does not state a claim upon which relief may be granted, the entire action shall be dismissed and shall count as one of his three allotted "strikes" under the provisions of 28 U.S.C. § 1915(g).
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. If judgment is rendered against Plaintiff, and the judgment includes the payment of costs under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for leave to commence this civil action without being required to prepay fees and costs or give security for the same, the applicant and his or her attorney were deemed to have entered into a stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule 3.1(c)(1).
Further, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court and each opposing party informed of any change in his address; the Court will not independently investigate his whereabouts. This shall be done in writing and not later than 7 days after a transfer or other change in address occurs. Failure to comply with this order will cause a delay in the transmission of court documents and may result in dismissal of this action for want of prosecution. See FED. R. CIV. P. 41(b).
MICHAEL J. REAGAN United States District Judge
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Soriano Clutch Hit; AGAIN
The day after the Cubs took it on the chin from the Cards and the day that Zambrano just did not have it, the Cubbies were looking for a hero. Once again Alfonso Soriano filled the bill.
In a game that meant a two game swing in the standings most Cub fans would be happy to see Zambrano on the mound. Well, today they would be disappointed as Carlos served up two long balls to Ludwick and a total of seven earned runs.
Who-oh-who would possibly step up and put this in the "W" column for the Cubs? Well down by one, Mr. Soriano comes to the plate in the eight inning with one on and one out. Fonzi was 0 for 4 batting to this point and was having problems with the slider. With the count 1-2 Perez comes back with the third slider in a row. This one was low and split the plate. Soriano, loving the low balls, drove it on a line to center and into the bleachers! Cubs up 8-7.
The top of the ninth showcased a shaky Marmol to start; walking the first batter, then hitting Pujols. Carlos II would get Ludwick swinging, the man who went long on Carlos I twice, and then Greene hit into a double play to end it. Cubs win 8-7. Hero Soriano.
So the man I chastised last year and again this year has forced me to put my foot in my mouth AGAIN. Congrats Fonzi and keep showing me up…I love it! Cubs Century Is Here!
Colorado, Marquis Rock Cubs
I waited as long as I could before I sat down for another portion of crow, but as Zig Ziglar use to say, "If you know that you gotta eat a frog, you don't want to stare at it too long.", so here goes;
Marquis held the Cubs in check. In fact he pitched great. He also got the first two RBI with a nice hit to center. AND the runner that was thrown out at third after his hit was SAFE.
I don't know anything about baseball.
Cubs Win Home Opener
Well it was a typical cold rainy day for the Cubs home opener, but that did not slow the boys of summer down. The leader of the bunch; Ted Lilly. Ted went 6 2/3 innings of no-hit ball until Garrett Atkins stroked a solid ground ball through the infield and into left field. That would be all the Rockies would get as Guzman, Heilman and Gregg would finish where Lilly started.
With the bull pen being the big question for the Cubs this year, the trio finishing as they did out of the pen was quite a highlight.
Another highlight of the game; the Cubs walked nine times. Yep, even though yesterday I said this was how the Brewer's gave us the game, it is apparent the Cubs are seeing the ball well and being patient. The lack of this skill was a complaint Cub fans have had for years, with the exception of last year, so seeing it continue is another plus.
With three of last year's All Stars in Soto, Ramirez and Bradley nursing injuries, the day off tomorrow will be welcomed. The boys are back in action Wednesday with Harden going against ex-Cub Marquis. Those that have followed my blog know I'm not a fan of Marquis and will look for the Cubs bats to give him a rude homecoming. Let's hope. Cubs Century Is Here!
Brewers Lose!
I'd say Cubs win but, when four runs are walked in and you win by three, the game was handed to you. So you say thank you and get out of town with two out of three. Trust me, we will take it, because baseball being what it is I'm sure I'll write a blog titled "Cubs Lose!" before the year is over.
Although the game was handed to us I would be remiss if I did not give a BIG shout out to Johnson for another amazing play in right field. Is there anything this guy can't catch? Last year he must have made four or five web-gem plays and already in this embryonic season he has scored another one. With the bags loaded and the Cubs up by four Fielder steps to the plate. Bang, he blasts one to right field and Johnson got on his horse. With a big leap and one foot on the wall, Reed timed it perfectly and corralled it above the yellow line; yes he stole a grand slam from the Prince! What did Prince Fielder do? He tipped his helmet; class act.
Two road series, two road series won. You can't ask for much more for the beginning of your season. Now it's time to go home and take care of business against the Rockies. Cubs Century Is Here.
Soriano Clutch Hit
Mmmmmmmmmm…this crow taste good. One day after lambasting Alfonso Soriano for his inept play in the field, and throwing in his inability to get a clutch hit in for good measure, I am sitting down for some tasty crow.
I was even ready to write how, Soriano, would have blown it in the seventh if not for a bad call at first base. With the bags loaded Soriano hit a ground ball to short for what looked to be a routine double play. But Mr. Soriano beat out the throw to first…or so it was called. A replay clearly showed he should have been out. I was ready for bear.
Then after a complete breakdown by the bull pen in the bottom of the seventh, the Cubs were down 5-3. They would go on to get one in the eight, and then in the ninth with one on and one out, the game on the line, Mr. Alfonso Soriano, in the clutch, would blast one to left. Cubs up 6-5.
This brings me to a discussion I had with a friend of mine. He said the Cubs knew what they were getting when they picked up Soriano and it was Lou's fault last game for leaving Soriano in on defense in the bottom of the ninth. Well, friend of mine, this is why it wasn't Lou's fault…Soriano, when he is hot, is a game changer. Did I say that out loud?
I'm sorry, I'm glad he got the clutch hit but, Soriano frustrates me. Hopefully by the end of the season that will change. As of right now he has been the goat and the champ. Let the games begin.
Once again the cubs have a chance to win the series and that's what you want; one game at a time and then one series at a time. Tomorrow it's Dempster vs. Suppan, even though Suppan was roughed up his first outing I think at home you have to give the edge to the Brewers. Let's go get them! Cubs Century Is Here!
Soriano Just Bad In Left
Welcome to the Cubs Mr. Bradley, he gets his first hit…a homer run.
Down 2-1 in the sixth Hill gets Harden off the hook for the loss with a two-run homer; Cubs lead 3-2. Marmol comes in the seventh and gets the Cubs out of a bags loaded situation. They go into the ninth up 3-2. Then with a man on Weeks hits a line drive to left and…Soriano miss plays it.
With a half step in as his first move and a haphazard effort to compensate for the miss read, Soriano watches the ball sail over his head. A run scores to tie the game. Weeks will later score from third on a ground ball to Theriot.
Soriano at the plate was 0 for 5. Does this guy frustrate anybody else but me? I can't stand him. Yes, he will get his occasional lead-off homer run, but does he EVER come through in the clutch? He might be the worst outfielder I've seen in my life. The Brewer's Fielder covers more ground at first than Soriano does in left. He can't read the ball off the bat and his patented bunny-hop before a routine fly drives me crazy. From my end Alfonso gets an "F" in the field and a "C" at the plate…I can sure find better ways to spend $16 million.
Put this one in the "L" column with an asterisk and Soriano as the footnote.
Let's go to even the series tomorrow. Cubs Century Is Here.
Extra Innings Kill Cubs
After a late inning home run by Soriano to tie the game, the Cubs cough and then choke in extra innings to lose.
This game is an example of what frustrates me about the Cubs the last few years. They get a good outing from their pitcher and the big bats in this line-up just can't come through with the big hit. Grant it Soriano tied it late but there were many situations earlier where a clutch hit brings in a run as opposed to hitting into a double play. Instead we go into extra innings and into a shell.
Two innings in a row the Cubs pitchers put the first two men on and both innings the Astros went against the odds and did not bunt. In the ninth the Cubs escaped but the Astros were not to be denied in the 10th. After a fly out left men at first and third the Cubs intentionally walked the bases loaded and a ground ball to left won it for the Stros.
The Cubs will not go undefeated this year but a wise baseball fan reminded me of a simple fact; the best team and the worst team will lose 60 games in a year, and the best team and the worst team will win 60 games in a year. It is what is done with the other 42 games that determines the winners from the losers.
The Cubs have one in each of their 60 columns, with Lilly going tomorrow it's time to put one in the 42 column. Cubs Century Is Here
That's One
Well opening the season with a win for the club is good. Also good was the fact that I was vacationing in Marco Island with the family which made it hard for me to watch the game. This was good because the Cubs started the season with a win without me hanging on every pitch.
The guys who are paid to put runs on the board: Soriano & Ramirez, did, the man that is paid to keep runs off the board, Zambrano, did. Big pitch-hit RBI from Hoffpauir.
All in all a good start to the season. Dempster starts tonight, let's see if he can pick up where he left off last season.
You can't win them all if you don't win the first one. Cubs Century Is Here!
Here I Go Again – Smarter?
Okay, it's been five months and I am just about over my tantrum.
After two of the most devastating seasons as a Cub fan I think I might have finally had a revaluation; just because the Cubs haven't won it all in 100 years, doesn't mean they deserve to win, should win or will win the World Series. Grant it I've been thinking this since the 100 number was around 63 but I don't want to have another tantrum.
I actually watched a few innings of the Cubs/Soxs game last night and didn't throw-up. Hopefully by opening day I can ween myself to a full game. We'll see.
Here's my hope for the season; make the playoffs and WIN a game. Anything less will yes, be disappointing, but like any other addict I have to take it one day at a time.
Cubs – Worst Team In The History Of Baseball
Wow, what a display the last two years, swept in round one both times.
No fight, no character, just pathetic, and I've supported this team for 37 years. What does that make me? Pathetic.
I was thinking, in my family lineage, only my great-grandfather would have been alive to see the Cubs win the World Series in 1908 but he died before I was born. Nobody in my family can even attest to the Cubs winning a World Series. Nobody alive today could possibly have a cognizant memory of the Cubs winning the World Series. Heck, they would have to be at least 110. How absolutely pathetic.
I've never seen a team play with such fear, such trepidation. They truly played like they did not belong. They were completely man handled. Beaten like a red headed step child.
The absolute worst team in the history of major league baseball, what a complete and utter disgrace to the game.
Somebody please buy this team and move it to Tibet.
I HATE being a Cub fan.
If somebody has a 12 step program for Cub fans please email me with it. If not maybe I'll start a support group.
What a JOKE THIS TEAM IS AND HAS BEEN!
Congratulations to the LA Dodgers. Manny is the real deal – 5 for 10 – Wow – Go show Chicago how baseball should be played.


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Rated 4.3 out of 5 by 98 reviewers.
Rated 5 out of 5 by KayBea Sofa Covers I was hesitant to purchase these as we are on the water and have a lot of wind on occasion. They are great! Fit very snugly and have vents for the wind. Elastic at the base, high quality fabric. I would recommend! November 21, 2016
Rated 5 out of 5 by Sdecor Love it! This collection is just beautiful looks amazing and it super comfy.I just love it!! Ive received may compliments on the set its just beautiful. October 13, 2016
Rated 5 out of 5 by DLNOVA Nice size fire table I looked at many choices online for a fire table and found this one to be a great value and nice size. We built a patio that needed a central gathering place and some warmth for fall season gatherings. This table is nice quality for the price - not over the top materials, but well made and simple in design. It assembled easily with four allen wrench style bolts. You could spend 2 to 3 times more and not get that much more in terms of look and feel. It's not real tile or granite, but it serves the purpose well without worrying about outdoor elements and other abuse. Comments about not having enough fire glass are understandable, but if you spread the glass evenly from the center out to the edges you will be OK. The glass won't "fill" the bowl that the burner sits in, but it will cover the bottom and looks fine in use or not. My only small complaint is that the controls are only accessible by lifting the side panel out. Not a big deal as I see myself just turning on the gas tank, lighting the fire, and setting it on low and forgetting about it until finished with it. Also, note that the cover is well made, fits great and well worth buying. I put a small, shallow, stainless steel mixing bowl (~6" diameter) on top of the glass after it cools to keep the cover up in the center to allow water to run off the top of the table when covered. Still remains to be seen how it all holds up over time, but so far we are very happy with the purchase. September 23, 2016
Rated 5 out of 5 by LoveMyHome Beautiful and easy to use! The fire table is beautiful, excellent quality , very very easy to use! The color is slightly lighter than pictured in the photo but wasn't a deal breaker for us. Some reviews said that the amount of rocks it came with wasnt sufficient. I disagree. It was a perfect amount of rocks in my opinion. The directions for setting up I thought could be more thorough, but we managed to set it up quickly nonetheless. I am very happy with this purchase! September 19, 2016
Rated 5 out of 5 by IRINAG Excellent purchase The set came very well wrapped, we noticed that the bottom cushions have rubber cover for non slipping. We have so many compliments from our neighbors, this set is beautiful and very comfortable! August 25, 2016
Rated 5 out of 5 by summergirl74 Quality fire table Excellent fire table - purchased with the Palmero curved modular sofa set - looks beautiful. Very easy to use, nice flame height. Easy access for propane tank hook up. July 13, 2016
Rated 5 out of 5 by Schpoutzl wonderful fire pit The installation was extremely easy to do as it only required 4 screws which were included with the fire pit. The fire stones are beautiful when lit. It also provides heat which will be great in the winter months and also is a fun thing to sit around with the Pasadena sofa set. It takes the regular propane tank. July 8, 2016
Rated 5 out of 5 by Schpoutzl Beautiful set This set is impeccably built and provides a cozy conversation area. The cushions are very comfortable and the whole set is very easy to set up. I have gotten only praises from my friends who have seen it. July 8, 2016
(78 Questions : 87 Answers)Product Q&A
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Pasadena 5-pc. Sofa Set
1 answerRecently purchased the 4-piece Pasadena set w/Sand. Wanted to add another sofa but not available in Sand. Ability to get Sand?
Tampa, FL, USA
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Length of Ownership: < 1 year
2 months ago
Tampa, FL, USA
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0out of 0found this question helpful.
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Answer:Thank you for your interest in the Pasadena 5-pc. Sofa Set. Individual sofas are available; please see item 67854.
1 month, 3 weeks ago
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Pasadena 5-pc. Sofa Set
1 answerDimensions of 4 and 5 piece set and other questions.
Additional information about mkar could not be loaded.
I know the question about dimensions has been asked a few times already. However, I would like to make sure it fits the dimensions of my patio. I have a 12.5 diameter circular patio. Would the Pasadena 5-pc. Sofa Set fit within it?
Can I remove the cushions to clean them?
What type of Resin Wicker is used to make the chairs: PVC Wicker, Nylon, Polyethylene or High Density Polyethylene (HDPE) Wicker?
I know the question about dimensions has been asked a few times already. However, I would like to make sure it fits the dimensions of my patio. I have a 12.5 diameter circular patio. Would the Pasadena 5-pc. Sofa Set fit within it?
Can I remove the cushions to clean them?
What type of Resin Wicker is used to make the chairs: PVC Wicker, Nylon, Polyethylene or High Density Polyethylene (HDPE) Wicker?
3 months, 4 weeks ago
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Answer:Thank you for your interest in the Pasadena 5-pc. Sofa Set. The 5 piece set is 135.04" dia. (approximately 11.25') which will fit on your 12.5' patio. The cushions can be taken of the furniture to clean and come in easy to clean Sunbrella® fabric with mesh bottoms for quick-drying convenience. The resin wicker is made of polyethylene over an aluminum frame.
3 months, 3 weeks ago
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Pasadena 5-pc. Sofa Set
1 answerWhat is the interior diameter? I'm trying to decide between the 42" and 48" Oriflamme Sahara firepit table.
Additional information about HMac could not be loaded.
4 months, 1 week ago
Additional information about HMac could not be loaded.
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Answer:Thank you for your interest in the Pasadena 5-pc. Sofa Set. The interior diameter of the 5-pc. set is approximately 72".
4 months ago
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Pasadena 5-pc. Sofa Set
1 answerPasadena Sets
Additional information about 2Ellie could not be loaded.
In Frontgate Catalogs it shows Gingko as a 'rain' fabric, however it only gives 3 basic colors when I try to see what the color would look like with the Pasadena set I like. Gingko is my colors being used in my new back yard. Please advise.
4 months, 1 week ago
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Answer:Thank you for your interest in the Pasadena 5-pc. Sofa Set. The Pasadena Sofa (67854) is not currently available in our Rain Gingko fabric. We sincerely apologize for any inconvenience this may cause.
4 months ago
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Pasadena Fire Table
1 answerHi does this come in white wicker. If not do you have a white wicker fire table available
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4 months ago
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Answer:Thank you for your interest in the Pasadena Fire Table. This table does not come in a white option. Unfortunately, we do not currently have a white wicker fire table available. We sincerely apologize for any inconvenience this may cause.
3 months, 3 weeks ago
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Product:68174-Pasadena Modular Outdoor Collection


text:
Manufacturers moving to New Berlin, Menomonee Falls
A Menomonee Falls manufacturer is moving to Westridge Business Park, in New Berlin, while another area manufacturer to moving to Menomonee Falls from Mequon.
Milwaukee Broach Co. has leased approximately 28,000 square feet at 5660 S. Westridge Court, in a lease brokered by Kevin Barry and Kenneth Braden, of Cassidy Turley Barry, and Barry Chavin, of NAI MLG Commercial.
Milwaukee Broach, which makes precision cutting tools, is now at N52 W13821 Northpark Drive, Menomonee Falls. The company has outgrown its current facilities, said President Michael DeBakker.
Meanwhile, interactive kiosk maker Connected Technology Solutions LLC has leased 50,340 square feet at W146 N9560 Held Dr., Menomonee Falls, and will move there from 6200 W. Donges Bay Road, Mequon. Chavin, Stephen Provancher, and Brett Garceau, of NAI MLG Commercial, handled the transaction.
"The purpose of this expansion is to increase our capacity, eliminate bottlenecks in production and generally improve efficiency," said President Sandra Nix, in a statement.
- Downtown Waukesha apartment plan revived
- Firefighters union chief played role in high-rise zoning fight
- Video: Sprawling Mequon takes a more urban turn
- Pabst Brewing opens satellite office at former Pabst brewery
- Goll House apartment opponent cites union labor concerns
- Drexel Town Square to get more retail buildings
- Charter Manufacturing moving to new Mequon offices
- Video: Redevelopment continues of former Concordia campus
- Memory care facility proposed in Brookfield
- Land & Space commercial development database past 250 projects
Commercial Real Estate News
Common Council rejects apartment high-rise behind Goll House
A proposed $55 million 27-story apartment tower for Milwaukee's east side has been rejected by the Common Council.
The council on Tuesday voted 10-5 to support the project, falling two votes short of the supermajority needed for approval. The zoning change needed 12 votes because a protest petition was signed by enough adjacent property owners, said Ald. Ashanti Hamilton, council president.
The opponents were Ald. Robert Bauman, whose district includes the site, along with aldermen Cavalier Johnson, Mark Borkowski, Jose Perez and Tony Zielinski.
Check the Milwaukee Assessor's Office website, which includes tools to look up property assessments.
Find property assessments for other communities throughout the state at AssessorData.org.
The Milwaukee Department of City Development website includes information on the city Plan Commission and Redevelopment Authority.
The Commercial Association of Realtors Wisconsin offers information on commercial realtors and real estate.
The Milwaukee chapter of the Institute of Real Estate Management serves the needs of real estate management professionals
The Wisconsin chapter of the NAIOP Commercial Real Estate Development Association aims to serve developers and owners of commercial real estate.
The Land and Space blog was recognized by the Society of American Business Editors and Writers in the blog category for dailies with circulation between 200,000 to 500,000.
The judges said, "Daykin's aggressive reporting and accessible, explanatory writing make him a must-read for his tight-knit and highly engaged audience."


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Personal Computing: Where Should You Buy Your Next PC?
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These days there are almost as many ways to buy a personal computer as there are ways to configure one. You can buy from a computer superstore, small local computer store, office supply store, electronics store, department store, mass merchandise store, warehouse store, computer show, value-added reseller, mail-order catalog company, or directly from the manufacturer. To make things even more complicated, a number of vendors in the above categories now let you buy through the Internet. How do you decide where to get the biggest bang for your buck? Much depends on your particular situation. But each buying channel has its advantages and disadvantages, and some have more advantages than others.
Going Retail
Despite the newer whiz-bang buying options out there, walking into a store, sitting down in front of a number of display PCs, and taking a system back with you is still the most common way to buy a computer today. Buying from a retail outlet can be reassuring if you don't have previous experience buying a computer. Looking at a monitor, testing out the feel of a keyboard, and seeing how much space the system takes up can be important clues to how you'll like the system once you get it back home or in the office. On the other hand, you may think that being able to look your salesperson in the eye will help ensure you get a good deal. But some computer salespeople have little knowledge about computer technology, aside from which models the store has in stock and what…IBPA Members – Click here to view the full article (login required).
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Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
United States District Court, Seventh Circuit
January 21, 2014
SURALEB, INC., Petitioner,v.PRODUCTION ASSOCIATION
GEORGE M. MAROVICH, District Judge.
The parties to this case have a history of first asking the Court for relief and only later citing (and perhaps researching) the applicable law. This shoot-first-aim-later approach has rendered more complex a relatively straight-forward motion to revive a judgment.
On June 27, 2006, petitioner Suraleb, Inc. ("Suraleb") filed a petition to confirm a foreign arbitration as to respondent Production Association "Minsk Tractor Works, " Republic of Belarus ("Tractor Works"). The arbitrators had rendered an award that, among other things, required Tractor Works to pay Suraleb $2, 166, 555.00 plus $987, 224.61 for attorneys' fees plus 1, 203, 761 Swedish Kronor for the costs of arbitration. On December 5, 2006, the Court entered judgment confirming the arbitration award and granting Suraleb $88, 777.96 in prejudgment interest.
After nearly seven years had passed, Suraleb filed a motion to revive the judgment. In its motion, it asked the Court to revive the judgment in the amount of $3, 745, 535 plus $1, 225, 698 in post-judgment interest. Suraleb also noted in its motion that Tractor Works was entitled to credits in the amount of $100, 000.00.
The Court referred Suraleb's motion to Magistrate Judge Brown, and the parties briefed the motion. After the deadline for filing a reply in support of its motion to revive the judgment, Suraleb filed a motion for leave to amend its motion to revive the judgment. In its motion to amend, Suraleb noted that Tractor Works was entitled to additional credits against the judgment and that it wanted a chance to include them. On November 8, 2013, Magistrate Judge Brown entered a Report and Recommendation, in which she recommended that Suraleb's motion to amend be denied and that its motion to revive the judgment be granted, though without putting a dollar figure on the post-judgment interest.
Tractor Works filed timely objections, which are now fully briefed. For the reasons set forth below, the Court adopts in part the Report and Recommendation of the Magistrate Judge, overrules Tractor Works' objections, grants the motion to revive the judgment and denies as moot the motion for leave to amend the motion to revive the judgment.
I. Standard of review
When a magistrate judge has issued a Report and Recommendation, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).
II. Discussion
Rule 69 of the Federal Rules of Civil Procedure says that execution of a judgment must proceed according to state law. Fed.R.Civ.P. 69(a)(1). Under Illinois law, a judgment is good for seven years, but it can be revived ( see 735 ILCS 5/12-108(a)) within twenty years of the date of judgment ( see 735 ILCS 5/13-218). The Illinois code sets out the procedure:
(a) A judgment may be revived by filing a petition to revive the judgment in the seventh year after its entry, or in the seventh year after its last revival, or in the twentieth year after its entry, or at any other time within 20 years after its entry if the judgment becomes dormant.
(b) A petition to revive a judgment... shall include a statement as to the original date and amount of the judgment, court costs expended, accrued interest, and credits to the judgment, if any.
* * *
(d) An order reviving a judgment shall be for the original amount of the judgment. The plaintiff may recover interest and court costs from the date of the original judgment. Credits to the judgment shall be reflected by the plaintiff in supplemental proceedings or execution.
735 ILCS 5/2-1602. The entry "of a reviving order should be a clerical task; all it entails is assurance that the judgment has not been vacated or marked satisfied since its rendition." TDK Electronics Corp. v. Draiman, 321 F.3d 677, 680 (7th Cir. 2003). Illinois courts recognize only two defenses to a motion to revive a judgment: (1) the original judgment did not exist; or (2) the original judgment was satisfied or discharged. Department of Public Aid v. McGinnis, 643 N.E.2d 281, 285 (Ill.App.Ct. 4th Dist. 1994); First Nat'l Bank of Marengo v. Loffelmacher, 603 N.E.2d 80, 84 (Ill.App.Ct. 2nd Dist. 1992).
Based on this law, Magistrate Judge Brown concluded that the judgment should be revived in its original amount. Tractor Works (without citing any Illinois law on reviving judgments) had argued that Suraleb should be made to account for all credits to the judgment before revival of the judgment. The Magistrate Judge rejected the argument that credits must be factored into a revived judgment, relying on the Illinois code's language that credits are to be reflected in subsequent proceedings. Although Magistrate Judge Brown recognized that Suraleb could recover post-judgment interest, she declined to calculate the appropriate amount of post-judgment interest.
Tractor Works makes two objections to Magistrate Judge Brown's Report and Recommendation. First, Tractor Works objects to her recommendation that the Court deny Suraleb's motion to amend its motion to revive. Second, Tractor Works objects that post-judgment interest cannot be calculated without reference to the amount of the judgment Tractor Works has already paid down.
The recommendation to deny Suraleb's motion to amend
Tractor Works makes two argument in support of its first objection [that the Magistrate Judge erred in recommending that Suraleb's motion (for leave to amend its motion) be granted].
First, Tractor Works cites Rule 15(a)(2) for the proposition that a Court should freely grant a party leave to "amend its pleading" when justice so requires. A motion to revive a judgment, though, is not a pleading, so Rule 15 is inapplicable. Fed.R.Civ.P. 7(a) ("Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.").
Tractor Works' better argument is that the Illinois code for reviving judgments requires a moving party to include a statement of the "credits to the judgment, if any." 735 ILCS 5/2-1602(b). Although Tractor Works did not cite this provision to the Magistrate Judge, it wants this Court to enforce it now. Suraleb, when it filed its motion to amend, essentially conceded that Tractor Works was entitled to additional credits, and Tractor Works wants those credits outlined before the Court considers the motion to revive the judgment.
Doing so would be a waste of time and merely postpone the inevitable. According to the plain language of the Illinois code, the "order reviving a judgment shall be for the original amount of the judgment. " 735 ILCS 5/2-1602(d) (emphasis added). Thus, the amount of the credits does not matter for ruling on the motion to revive so long as the judgment has not been satisfied. The obvious purpose of §2-1602(b)'s requirement (that the credits be listed on the petition to revive) is to allow a court to determine whether a judgment has been satisfied before reviving said judgment. That requirement is particularly important when the person against whom the original judgment was entered is not present to state whether the judgment has been satisfied. Here, though, Tractor Works is present but does not suggest that the judgment has been satisfied. (In other words, Tractor Works cannot make out a defense to an order reviving the judgment.) Any error in not allowing Suraleb to amend its motion to include additional credits is harmless where, as here, the judgment debtor is present and concedes that the judgment has not been satisfied. Tractor Works' objection is, therefore, overruled.
Post-judgment interest
When Suraleb filed its petition to revive the judgment, it asked the court to include $1, 225, 698 in post-judgment interest. Magistrate Judge Brown declined to include a calculation of post-judgment interest, and it is unclear why Tractor Works objects. What is clear is that Tractor Works believes the amount of post-judgment interest Suraleb demanded is too high, because Suraleb's calculation fails to account for credits to the judgment. Although the Court does not disagree with the proposition that post-judgment interest should accrue only on portions of a judgment that are not yet paid, this is not an issue that must be addressed at this time. The Magistrate Judge did not set an amount for post-judgment interest; she merely recognized that Suraleb remains entitled to post-judgment interest on the judgment. (Report and Recommendation at 6). This is true, because post-judgment interest accrues on all federal judgments (28 U.S.C. § 1961(a)), a legal proposition Tractor Works does not dispute.
What is also clear is that an order reviving the judgment "shall be for the amount in the original judgment." Although Suraleb is entitled to post-judgment interest by virtue of § 1961(a), nothing in the Illinois code suggests that the amount of post-judgment interest must be calculated and included in an order reviving a judgment. Accordingly, the Court will revive the judgment in its original form, without quantifying an amount of post-judgment interest. Tractor Works' objection is overruled.
The Court, therefore, adopts the portions of Magistrate Judge Brown's November 8, 2013 Report and Recommendation [117] that are consistent with this opinion. The Court overrules Tractor Works' objections. The Court grants Suraleb's motion [100] to revive the judgment and hereby revives the December 5, 2006 judgment confirming the arbitration award and granting petitioner Suraleb, Inc. $88, 777.96 in prejudgment interest. The Court denies as moot Suraleb's motion [114] to amend its motion.
III. Conclusion
For the reasons set forth above, the Court adopts the portions of Magistrate Judge Brown's November 8, 2013 Report and Recommendation [117] that are consistent with this opinion. The Court denies Tractor Works' objections. The Court grants Suraleb's motion [100] to revive the judgment. The December 5, 2006 judgment confirming the arbitration award and granting petitioner Suraleb, Inc. $88, 777.96 in prejudgment interest is revived. The Court denies as moot Suraleb's motion [114] to amend its motion.
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Posted By: Teresa All Posts by Teresa
May 06, 2015
"Fun Hog" month is how we refer to March in Denali. It is the long anticipated arrival of spring for year-round residents. Spring in Interior Alaska does not evoke birds chirping or tulips popping out of the ground; there is likely still over a foot of snow and nobody flinches if daytime temperatures don't make it above -20°F. The arrival of spring here means only one thing for certain: daylight. The sensation of going to bed and rising with the sun is one that has almost been forgotten. For Alaskans, it is time to cash in vacation days and go play.
For my first winter camping trip longer than a weekend, I could have done without the -30°F thermometer reading when my musher, 10 sled dogs, and I hit the trail. The two-week adventure would take us from the entrance of Denali National Park to Kantishna and back. For someone who spends all summer inside the Park, it was an incredible thing to see Toklat River frozen rather than flowing, Eielson Visitor Center blanketed in snow, and an empty Park Road. For the most part, the winter skiing & mushing trail stays off the road, wandering its way through the river valleys instead. Every once in awhile, we would hop onto the road for a low, straight stretch. It was surreal to see a 30MPH sign sticking out of the snow, signaling cars that hadn't passed that way in months.
I would have written it off as a ridiculous notion if three years ago someone told me that I would seek out and be thrilled by a winter camping trip where temperatures stayed below zero, 15-30 miles of skiing per day would be involved, and better yet, I would be sleeping in a tent in winter, not a cabin. But I found myself with a smile on my face, in nothing but a base layer at -10°F relaxing in the sunshine. I was looking at Denali with a bluebird sky backdrop eating a well-deserved Snickers after skiing up and over Stony Dome. I had spent the last several hours skiing after a team of sled dogs going faster than reasonable for pulling 500 pounds of sled, musher, and gear.
I have camped more nights than I can count in wilderness all over this country, but no trip quite compares to stepping out in the morning to rosy, snow capped mountains, frozen landscape, and nothing but deserted horizon.
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Posted By: Lee Drury All Posts by Lee Drury
March 02, 2015
While there are certainly colder nights and more snow in New England than in the Park, winter still reigns, even as more light returns each day. Year-round staff busily work at setting up all the details for the summer. Simon and Jenna flew in to the lodges to see that all was well. Interviews for new staff are nearly wrapped up, and now the tough decisions begin about who to hire. Emails fly back and forth between returning staff expressing enthusiasm in contemplation of another season of work. In the office, reservations flood in, and cabins and rooms fill up for the season to come.
Each year as the summer season approaches, year-round staff compare numbers of guests in the previous season to those booked for the season to come. Last year? Two thousand, four hundred twenty-one guests. That makes for a lot of people ferried from the Park entrance to the end of the road, a lot of world-class meals served, and a lot of questions asked. How do you do this? Do you stock supplies over the winter? How does the food get here?
The simple answers? A knowing smile, no, and the same way the people get here. Truck, Cessna, or, as shown in the 2013 photo from early May, late snowmelt necessitated flights from Talkeetna, over the Alaska Range, and then snow machine to cover the four miles from Kantishna. With supplies. Enough to last until the road opened to traffic.
In another part of the office, Jenna reviews the previous season's inventory as she ponders prospective orders for the season. Inventory lists show what a successful season looks like, and the revelation is mind-boggling. In 2014, we soaked through 12,000 tea bags. $3,960. As I sit here with my single cup of Earl Grey, I can't quite get my arms around that number. Marginally easier to visualize are the 1,170 pounds of coffee beans, brewed into my addiction of choice at a whopping cost of $11,466. Then there are those 5,000 (five thousand) pounds of flour for daily bread and yummy cookies. That's one hundred 50-pound bags of flour hefted in and out of the Warehouse. Hmmm. No wonder our bakers are so fit. And the eggs: 5,400 eggs. Per month. Twenty-eight thousand (28,000!) total eggs consumed.
But the statistic that amuses the most and prompts hoots of laughter is toilet paper. TP. Outhouses and bathrooms require lots of paper, apparently 1,680 rolls of it. The details continue: each of those 1,680 rolls contains 2,000 inches of paper which divides out to 280,000 feet. Taking that another step, you end up with fifty-three miles of toilet paper. Picture a TP trail going eight times up and down the Wickersham Wall. Or covering the trail out and back to McGonagall Pass with enough length left over to make up for the amount that washes down the McKinley River.
Now that is a statistic.
Exuberantly everyone prepares to pitch in with the work, the lugging and hauling, stowing and shelving, dusting and scrubbing. Thoughts spring forward to the guests' smiles at the first whiff of morning coffee, their joy at finding a basket of Focaccia on the table, and the satisfaction of seeing that little white roll hanging on the wall.
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Posted By: Ashley All Posts by Ashley
January 30, 2015
Mid-January is the time we hear back from our previous summer staff whether or not they'll be returning to work for another season at Camp Denali and North Face Lodge. This time of year is also when we will get an update as to where our Staff has scattered to during the Annual Staff Migrations that occur in late fall and spring.
After a long summer working at Camp Denali, our daring staff are more often than not itching to begin a great adventure, return home to visit family, start new winter jobs, or discover more of Alaska. Being that we are isolated from the rest of the state for most of the summer, our staff takes time planning trips to hike, paddle, climb, and generally explore the different corners of Alaska at the end of the season, just like many of our guests do on their vacations. Many summers, staff will borrow, buy, or rent a car and drive to the Lower 48 discovering the wonders of Eastern Alaska, and the Yukon and British Columbia, Canada.
The choices of exploration and winter work run the gamut. This past fall, three of our staff members Tom, Eric, and Tess, drove from Fairbanks to Massachusetts. One of our hosts, Sadie, took a Yoga Instructor course in New England and is now working at a Yoga center in Costa Rica for the winter. Our Housekeeping Coordinator, Kendall, and her husband, Justin, hiked the Camino de Santiago in Spain and are now exploring Central America. Finally, our Executive Chef, Chris, chose to spend his winter backcountry snowboarding on Mt. Baker as he has done in the past.
Another path chosen by our staff is that of working in Antarctica over the "austral summer." Two of our current staff members, Kristen and Max, are working as cooks at McMurdo Station. This site is a U.S. Antarctic research center on the south tip of Ross Island. The working season in Antarctica matches up well for our staff because it allows ample time to travel in the spring before heading back to Camp Denali in late May.
Each season our dedicated staff members work tirelessly for more than three months providing amazing experiences for our guests. The time of year when they journey south and begin adventures or go back home is a well-deserved and rewarding time. We relish in hearing their plans before departing and look forward to the migration north in the spring when most of them return to Camp Denali, stories in tow.
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It is our pleasure to present Dispatches, a journal of the goings on at Camp Denali & North Face Lodge. Written by members of our staff, Dispatches is an opportunity to peek into the special sightings notebook, brush up on Denali National Park issues, read about our ongoing projects in sustainability, and maybe get a whiff of what's cooking in the kitchens. Dispatches will carry on through the winter, when we hope to share stories of snowy ski adventures, deep cold, and the events of a small Alaskan community.


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February 21, 2012
GEORGE J. ZACHARKIWv.THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
AND NOW, this 21st day of February, 2012, upon consideration of Plaintiff's Second Motion for Attorney's Fees and Costs (Doc. No. 23) and Defendant's Response in Opposition Thereto (Doc. No. 24), it is hereby ORDERED that Plaintiff's Motion for Fees and Costs (Doc. No. 23) is DENIED. The Clerk of Court is directed to close this matter for statistical purposes.
I. Factual Background and Procedural History This ERISA action involves Defendant Prudential Insurance Company of America's ("Prudential" or "Defendant") allegedly improper termination of Plaintiff George J. Zacharkiw's ("Zacharkiw" or "Plaintiff") long-term disability ("LTD") benefits. Zacharkiw suffers from Relapsing Remitting Multiple Sclerosis ("MS"). (Doc. No. 1 ¶¶ 7-9). At the time of his MS diagnosis in December of 2003, Zacharkiw worked as an Associate Director for Navigant Consulting ("Navigant"). (Doc. No. 1 ¶¶ 9-11). As a Navigant employee, Zacharkiw received disability insurance coverage through a plan sponsored by Navigant and insured by Prudential. (Doc. No. 1 ¶ 12).
According to the complaint, Zacharkiw ceased working on July 23, 2007, due to the progression of his MS. (Doc. No. 1 ¶ 14). Prudential initially approved Zacharkiw's LTD benefits claim, and he began receiving such benefits on January 19, 2008. (Doc. No. 1 ¶ 16). However, Prudential terminated Zacharkiw's LTD benefits effective April 1, 2009, finding that Zacharkiw was no longer "disabled" under the plan's definition. (Doc. No. 1 ¶¶ 23-27; Ex. H). Zacharkiw appealed on June 26, 2009, but Prudential upheld its termination decision on September 25, 2009. (Doc. No. 1 ¶¶ 28-38; Ex. K).
Zacharkiw filed a voluntary second appeal with Prudential in early February of 2010 and brought this suit about a week later on February 16, 2010, before the second administrative appeal ran its course. (Doc. No. 9; Doc. No. 24, at 2-3). In conjunction with this second appeal, Zacharkiw submitted a fair amount of new evidence to buttress his disability claim, including records from his neurologist, the results of neuropsychological testing ("NPT"), lab results, x-rays, and an MRI of his brain. (Doc. No. 14, D1045-46). Dr. Edward Murphy, who performed the new NPT, unequivocally supported Zacharkiw's disability claim:
Given the nature of his work, it is my opinion that Mr. Zacharkiw is disabled from returning to active employment. His work involves considerable attention to fine detail as well as a high level of productivity. His most severe deficit on testing is related to his impaired processing abilities. His prognosis for re-employment is poor given the progressive nature of his disease. In addition to his neurocognitive deficits, he has marked symptoms of fatigue which tend to heighten his cognitive impairments. (Doc. No. 14, D1385-91).
In addition, Dr. Murphy's NPT report of November 10, 2009, called into question Zacharkiw's previous NPT results, in which Dr. James Langan opined that Zacharkiw did not put forth a good faith effort on some of the tests and therefore scored lower than he should have. Specifically, Dr. Murphy stated:
I did have an opportunity to review the neuropsychological report by Dr. James Langan dated 02/18/09. I did not see any indication on the current examination of inadequate effort on testing. I did repeat one measure of effort-Test of Memory Malingering. His [Zacharkiw's] performance on this measure suggests no indication of any distortion or exaggeration of his results. (Doc. No. 14, D1385-91). In the past, Prudential had relied on Dr. Langan's assessment of Zacharkiw's malingering to conclude that Zacharkiw was not disabled and therefore not entitled to LTD benefits. (See Doc. No. 1 ¶¶ 26-27, Ex. H).
Zacharkiw's complaint alleges that Prudential violated the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), by acting in an "arbitrary and capricious manner in terminating [his] long-term disability benefits." (Doc. No. 1 ¶¶ 39-47). On June 1, 2010, several months after Zacharkiw filed suit, the parties jointly petitioned the Court for a stay pending Prudential's decision on Zacharkiw's second appeal, and we granted the stay on June 7, 2010. (Doc. Nos. 9, 10). On September 7, 2010, over one (1) year ago, Prudential reinstated Zacharkiw's LTD benefits. (Doc. Nos. 14, at 3; 17, at 7; 17-1). According to Prudential, it reversed course and reinstated Zacharkiw's benefits based on a "review of the new medical documentation submitted for review on second reconsideration." (Doc. No. 14, D1401-02). Prudential also issued Zacharkiw a check for $121,068.00, apparently as payment for back benefits owed from April of 2009. (Doc. No. 17, at 7 n.3).
Prudential then moved to dismiss Zacharkiw's complaint under Federal Rule of Civil Procedure 12(b)(1) on mootness grounds. We granted the motion but retained limited equitable jurisdiction to decide the collateral issue of attorney's fees and costs. (See Doc. No. 19). Zacharkiw subsequently moved for fees and costs, arguing that he achieved some degree of success on the merits in this matter. For the reasons discussed below, we deny Zacharkiw's motion.
II. Legal Analysis
Under ERISA's flexible fee shifting provision, a "court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g)(1). However, as a threshold matter, a fee claimant must have achieved "some degree of success on the merits" before a court may award fees and costs. Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2152 (2010) (citation omitted). The Supreme Court's Hardt decision makes clear that "[a] claimant does not satisfy that requirement by achieving trivial success on the merits or a purely procedural victor[y], but does satisfy it if the court can fairly call the outcome of the litigation some success on the merits without conducting a lengthy inquir[y] into the question whether a particular party's success was substantial or occurred on a central issue." Id. at 2158 (citations and quotations omitted).
The Hardt case, which spawned the "some degree of success on the merits" standard for ERISA fee shifting, involved peculiar facts. At the district court level, Ms. Hardt moved for summary judgment against Reliance, her insurer, arguing that Reliance's decision to deny her benefits was unreasonable as a matter of law. Hardt, 130 S. Ct. at 2154. The district court denied Ms. Hardt's summary judgment motion but remanded the matter to Reliance because, in the court's opinion, Reliance's plan administrators failed to comply with ERISA guidelines, thus depriving Ms. Hardt of a legally sufficient review of her claim. Id. In remanding the matter, the district court found "compelling evidence" in the record that Ms. Hardt was totally disabled and was "inclined to rule" in her favor, but thought it wise to give Reliance a chance to address the deficiencies in its approach first. Id. Accordingly, the court instructed Reliance to act on Ms. Hardt's application after considering all the evidence; otherwise, the court warned, "judgment will be issued in favor of Ms. Hardt." Id. Unsurprisingly, Reliance did as instructed and reinstated Ms. Hardt's benefits. Id.
On these facts, the Supreme Court held that Ms. Hardt had achieved "some success on the merits," which opened the door to an award of fees and costs. Hardt, 130 S. Ct. at 2158-59. However, the Court declined to elaborate on other scenarios that may or may not qualify as "some success on the merits." For example, the Court explicitly left open the question of "whether a remand order, without more, constitutes 'some success on the merits' sufficient to make a party eligible for attorney's fees under § 1132(g)(1)." Id. at 2159. In light of the Court's narrow holding in Hardt, one would expect the "some success on the merits" inquiry to depend heavily on the precise factual circumstances and procedural posture of the matter at hand.
In the wake of the Hardt decision, that expectation has come to fruition. The Third Circuit has not yet addressed Hardt's "some success on the merits" standard. However, the courts of appeal that have spoken on the issue have ruled narrowly, on the facts before them, rather than endeavoring to define "some success on the merits" more concretely than the Supreme Court did in Hardt. See, e.g., Kough v. Teamsters' Local 301 Pension Plan, 437 Fed. App'x 483, 490 (7th Cir. 2011) (finding that "[w]hile the remand from the district court here reopened the case based on newly discovered evidence [from the Social Security Administration], the decision to grant Kough benefits was not a 'purely procedural victory.' After the remand, the district judge granted summary judgment for the defendants, and that final decision left Kough with eight months of disability benefits more than he had before the remand. That represents 'some success on the merits' under Hardt."); Huss v. IBM Med. & Dental Plan, 418 Fed. App'x 498, 512 (7th Cir. 2011) ("[E]asily" concluding that "a reversal of the administrative denial of benefits, a remand for further proceedings involving a different controlling document, and the imposition of a statutory penalty against the Defendants" constitutes "some success on the merits."); Kolbe & Kolbe Health & Welfare Benefit Plan v. Med. Coll. of Wis., Inc., 657 F.3d 496, 506 (7th Cir. 2011) (deciding that "defendants met their initial burden of establishing 'some degree of success on the merits,' as we are affirming the dismissal, although on different grounds, of two of plaintiffs' claims against them."); McKay v. Reliance Standard Life Ins. Co., 428 Fed. App'x 537, 546-47 (6th Cir. 2011) (observing that "the district court explicitly concluded that McKay's receipt of 'another shot' at his claimed benefits was a 'success on the merits because his case was remanded for further consideration'; in other words, McKay 'achieved some degree of success' by achieving a remand."); 1 Lincoln Financial Co. v. Metropolitan Life Ins. Co., 428 Fed. App'x 394, 396 (5th Cir. 2011) (noting that "MetLife's motion for summary judgment was unopposed by Lincoln and the district court granted summary judgment in favor of MetLife on all of Lincoln's claims. MetLife clearly succeeded on the merits."); Toussaint v. JJ Weiser, Inc., 648 F.3d 108, 110 (2d Cir. 2011) (concluding that "there is no dispute that Defendants achieved both prevailing party status and some degree of success on the merits in this case because the district court granted summary judgment in their favor and we affirmed. Accordingly, the difference between 'prevailing party' and 'some degree of success on the merits' is irrelevant here."); Williams v. Metropolitan Life Ins. Co., 609 F.3d 622, 634-35 (4th Cir. 2010) (having "no difficulty in concluding that Williams did show 'some degree of success on the merits.' In fact, the degree of her success was very high, as shown by the district court's grant of Williams' motion for summary judgment and the district court's holding that Williams was entitled to long-term disability benefits."); Simonia v. Glendale Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1121 (9th Cir. 2010) (assuming without deciding that one party's voluntary dismissal of a counterclaim qualifies as "some degree of success on the merits" for the other party).
Having established the fact-intensive nature of the "some success on the merits" inquiry, we turn to the facts of this case. As discussed supra, Zacharkiw filed this lawsuit about a week after filing a second appeal with Prudential. In his second appeal, Zacharkiw submitted substantial new evidence of his disability, including new NPT results in which a doctor opined that Zacharkiw was disabled and could not return to work. The new NPT report also cast doubt on Zacharkiw's earlier NPT results, which showed evidence of malingering. After evaluating this new information, Prudential concluded that Zacharkiw met Prudential's definition of "disabled" and reinstated his LTD benefits.
Other than granting the parties' joint request to stay this litigation pending Zacharkiw's administrative appeal, we have had little involvement in this matter. We did not make any findings as to whether Prudential improperly terminated Zacharkiw's LTD benefits in the first place. We did not make any findings as to whether Prudential improperly denied Zacharkiw's first administrative appeal. We did not decide the exhaustion question. We did not rule on any summary judgment motions, as the parties submitted none. Finally, we did not remand this matter to Prudential for further consideration of either the old record or new evidence. As such, our actions in this case bear no resemblance to the active role played by the district court judge in Hardt, who found "compelling evidence" of Ms. Hardt's disability and directed the insurance company to reevaluate her claim or face an adverse court ruling. In short, the parties here resolved this dispute among themselves at the administrative level, not in this Court.
Additionally and importantly, based on the record before us, we believe that Zacharkiw's new evidence of disability, not this lawsuit, caused Prudential to change course and reinstate Zacharkiw's benefits. This distinguishes Zacharkiw's situation from that in Johnson v. Prudential Insurance Co. of America, No. H-06-0130, 2008 WL 901526 (S.D. Tex. Mar. 31, 2008). In Johnson, a pre-Hardt decision, the Southern District of Texas determined than an ERISA plaintiff qualified as a "prevailing party" for the purposes of a fee award when the insurance company "denied [the plaintiff's] long-term disability benefits and, after she sued, reversed the decision based on the same record, with only limited additional information." Id., at *8. The Johnson court opined that "[t]he reversal of the denial in the second administrative appeal appears to be the result of a more thorough review of the same evidence." Id. In other words, the court in Johnson implicitly found that the ERISA plaintiff's lawsuit, not new evidence, catalyzed the defendant insurance company's decision to reinstate benefits. Based on the evidence before us, that did not happen here. New medical evidence, not Zacharkiw's lawsuit, drove Prudential to conclude that Zacharkiw is disabled.
Hewel v. Long Term Disability Income Plan for Choices Eligible Employees of Johnson & Johnson, No. 09-5343, 2010 WL 2710582 (D.N.J. July 7, 2010), is analogous to Johnson and likewise distinguishable from the matter before us. In Hewel, the plaintiff sent a letter to the defendant pension committee contesting the termination of her disability benefits. Id., at *1. The pension committee ignored the letter, and the plaintiff subsequently filed suit claiming that her letter constituted an appeal of the termination of her benefits. Id. After the plaintiff filed suit, the pension committee restored her benefits. Id. Under these circumstances, the Hewel court concluded that the plaintiff had achieved some success on the merits because "[b]y bringing the Complaint and through subsequent correspondence, plaintiff caused the Pension Committee to recognize her appeal." Id., at *2. The court emphasized that "only after the instant lawsuit commenced did it [defendant] respond to the letter or acknowledge that it was an appeal. Plaintiff then prevailed on the merits of her administrative claim." Id. As in Johnson, the plaintiff in Hewel prevailed at the administrative level primary because she brought suit in federal court. Again, our review of the record leads us to believe that this did not happen here; rather, Zacharkiw's newly submitted evidence precipitated Prudential's restoration of Zacharkiw's benefits.
Thus, we hold that on the facts of this case, i.e., when an insurance company voluntary reinstates a claimant's benefits in an administrative appeal based on substantial new evidence without any significant court involvement, that claimant has not achieved "some success on the merits" of his ERISA claim and cannot recover attorney's fees and costs under Hardt. Although Zacharkiw achieved "some success," it happened solely at the administrative level and without our input.
In making this determination, we are acutely aware of the need to balance two competing policy goals. On the one hand, the law should discourage insurance companies from wrongfully denying claims only to reinstate benefits after getting sued. See Hewel, 2010 WL 2710582, at *2 (recognizing that awarding fees to ERISA plaintiffs may "deter plan administrators from wrongfully terminating benefits."). Insurance companies should make claims' decisions based on the merits of the claim rather than the litigiousness of the claimant. That way, the benefits properly flow to the truly deserving.
On the other hand, the law should not encourage putative plaintiffs to prematurely file suit in federal court, especially during the pendency of an administrative appeal in which the claimant submitted a bevy of new evidence for his insurance company to consider. See Templin v. Independence Blue Cross, No. 09--4092, 2011 WL 3664427, at *6 (E.D. Pa. Aug. 19, 2011) (observing that "had Plaintiffs fully engaged in the administrative review process prior to filing suit in federal court, they would have received that which they sought in the Complaint, avoiding the necessity of judicial intervention and those attorney's fees and costs associated with it."). The administrative review process affords the parties and the court many benefits. First, it "gives plan administrators the first opportunity to apply their expertise to interpret often lengthy and detailed plan documents, to reconsider initial decisions and correct mistakes, to collect facts, and to explain the rationale underlying the administrative decision." Id., at *7. Second, the parties might resolve their dispute, thus obviating the need for judicial review and the associated expense. Id. Finally, even if the parties cannot come to an agreement among themselves, the administrative process generates a record that may help a court reach the correct decision when the time comes. Id.
In this case, the latter concern far outweighs the former. Zacharkiw voluntarily filed a second appeal with Prudential and submitted new evidence to support his disability claim. Rather than giving Prudential the time to consider this new evidence, Zacharkiw immediately filed this ERISA suit. Allowing attorney's fees and costs in this case would undesirably encourage litigation despite the ongoing administrative review of a benefits claim, needlessly wasting the resources of the parties and the judiciary. Alternatively, if Prudential had reinstated Zacharkiw's benefits on essentially the same evidence pre- and post-suit, we would be inclined to conclude that Zacharkiw achieved "some success on the merits" of his claim. Under those circumstances, we could reliably infer that the lawsuit caused Prudential's change of heart, and we could fairly label the suit a substantial, non-trivial success. We cannot draw that inference on these facts primarily because Zacharkiw significantly supplemented the administrative record in his second appeal.
Finally, even if Zacharkiw cleared Hardt's "some success on the merits" hurdle, which he has not, we would exercise our discretion and decline to award attorney's fees and costs under the five-factor test set forth in Ursic v. Bethlehem Mines, 719 F.2d 670 (3d Cir. 1983).*fn1 Under Ursic, in deciding whether to award fees in an ERISA case, we may consider (1) the offending parties' culpability or bad faith; (2) the ability of the offending parties to satisfy an award of attorneys' fees; (3) the deterrent effect of an award of attorneys' fees against the offending parties; (4) the benefit conferred on members of the pension plan as a whole; and (5) the relative merits of the parties' position. Id. at 673 (citations omitted).
Here, we believe factors (1) and (3) are the most critical. Regarding Prudential's culpability or bad faith, the evidence we have shows that Prudential reinstated Zacharkiw's LTD benefits on the basis of newly available medical evidence and without prodding from this Court.
Therefore, we cannot conclude that Prudential acted in bad faith. Regarding the deterrent effect of awarding fees, we see no need to deter Prudential's conduct in this case. As discussed supra, Prudential received new information regarding Zacharkiw's disability and acted accordingly. On the other hand, we do wish to deter putative ERISA plaintiffs from prematurely filing suit before trying to work things out administratively. Declining to award attorney's fees and costs in this matter may have the desired effect.
III. Conclusion
For the aforementioned reasons, we DENY Plaintiff's Motion for Fees and Costs (Doc. No. 23) in its entirety. The Clerk of Court is directed to close this matter for statistical purposes.
Legrome D. Davis
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