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September 21, 2009
MARTIN ROSS MIALE, PLAINTIFF,v.TUOLUMNE COUNTY SHERIFF'S COGNIZABLE DEPARTMENT, ET AL., DEFENDANTS.
(Doc. 1)
Plaintiff Martin Ross Miale ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation. However, the events in Plaintiff's complaint appear to have taken place before his incarceration. Plaintiff is suing under section 1983 for the violation of his constitutional rights. Plaintiff also claims that Defendants violated the Posse Comitatus Act (18 U.S.C. § 1385). Plaintiff names Richard Rogers, Lee Stanford, Craig Davis, Todd Blankenship, George Ruckman, Jim Earl, Dan Bressler, Lt. Ditbetter, Zack Gordon, Jeff Gimpler, Jim Mele, A. J. Ford, P. T. Jones, Ken Austin, Tom Shepard, Bernie Roberts, and Donald I. Segerstrom as defendants. For the reasons set forth below, Plaintiff is ordered either to notify the Court of his willingness to proceed only on the claims found to be cognizable in this order, or to file an amended complaint.
I. Screening Requirement
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability... 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
II. Background
Although Plaintiff is currently a prisoner in the custody of the California Department of Corrections and Rehabilitation, Plaintiff's complaint appears to describe events that occurred before Plaintiff was incarcerated. Plaintiff alleges that he was retaliated against by employees of the Tuolumne County Sheriff's Department. Plaintiff alleges that Bruce Wood Medina was killed by employees of the Tuolumne County Sheriff's Department and a monument was erected by his family and friends stating that his death was caused by "cowards" of the Tuolumne County Sheriff's Department. The monument reads:
This Monument is Dedicated to Bruce Wood Medina Born Dec. 31, 46 Killed Feb. 07, 91 On this Location, While Unarmed & Standing on His Own Property Bruce Wood Medina was Shot & Killed by the Coward, Scott Mcfee and/or other Cowards of the Tuolumne County Sherriff[sic] Department This Crime was then White-Washed by the California Department[sic] of Justice (Compl. 23.) The monument stands on Plaintiff's property. Plaintiff alleges that he is frequently pulled over by officers from the Sheriff's Department who urge Plaintiff to remove the monument from his property.
Plaintiff alleges that sometime in February 2005, Defendant Davis concocted a story that Plaintiff was armed with automatic weapons and explosives, and was dealing drugs throughout the foothills. On March 4, 2005, a search warrant was issued against Plaintiff. On March 14, 2005, the Tuolumne County Sheriff's Department "activated" the California National Guard. Members of the California National Guard dressed in ghillie suits, armed themselves with sniper rifles and machine guns, and positioned themselves around Plaintiff's property. These California National Guard members, along with local law enforcement personnel, executed the search warrant around 6:30 a.m. on Plaintiff's property. Plaintiff alleges that there were over 30 armed men "running amuck" on his property.
Plaintiff alleges that the armed military and law enforcement officials surrounded Plaintiff's puppy yelling incoherently. Plaintiff, who had been preiviously injured in a car wreck, limped toward the armed men waiving his arms and yelling "Don't shoot, don't shoot, he is just a puppy." The armed men then turned their guns toward Plaintiff and continued screaming incoherently. A California National Guard armored personnel carrier loaded with additional men then "came flying into" Plaintiff's property, nearly hitting Plaintiff. A military helicopter also dropped from the sky, "armed with what looked to be a 50 caliber machine gun" pointing at Plaintiff. Plaintiff attempted to get down on the ground, but had difficulty due to injuries in his leg. One of the California National Guardsmen approached Plaintiff, drove Plaintiff face first into the concrete, and twisted Plaintiff's arm behind his head, causing Plaintiff's shoulder to crack. Plaintiff also felt another person stomping on his legs. Another person climbed on Plaintiff's back, told Plaintiff to calm down, and popped his shoulder back into place.
Plaintiff alleges that he was then handcuffed and placed on a rock while other men ran around on his property waving their machine guns yelling incoherently, unnecessarily kicked down doors that were unlocked, and destroyed Plaintiff's property. Plaintiff was then placed under arrest for a parole violation and taken to Tuolumne General Hospital for treatment for his shoulder injury. Plaintiff received an x-ray but did not receive any treatment because Plaintiff was told the injury would heal itself over time. Plaintiff was also told that an MRI would be necessary to tell what the "real" damage was, but Plaintiff did not receive an MRI.
While in the county jail, Plaintiff was told by two employees of the Tuolumne County Sheriff's Department that people were going to Plaintiff's property to steal his property. An officer (Mcneil) told Plaintiff that they had received information about the people on his property but are choosing not to stop them. A second officer (Derocha) told Plaintiff that the same people are on Plaintiff's property pulling the motor out of Plaintiff's truck but the Sheriff's department was refusing to stop the crimes from occurring because of the monument in front of Plaintiff's property. The truck ended up being stolen and not recovered despite Plaintiff's efforts to notify the sheriff's department and the district attorney (Defendant Segerstrom). Plaintiff alleges that someone stole another car off Plaintiff's property as well as over $30,000 worth of property while Defendant Blankenship watched from across the street.
Plaintiff alleges that Officer Derocha gave Plaintiff a hint about where his property was stolen after the sheriff arrested the thief and told Plaintiff to take care of it himself. Plaintiff asked why they did not prevent the crime from happening and was told that he had nothing coming unless "we could work a deal." (Compl. 12.)
III. Discussion
A. Constitutional Claims
Plaintiff claims that Defendants violated his constitutional rights. Plaintiff does not specify which constitutional rights Defendant violated, nor does Plaintiff specify how Defendants violated those rights. Plaintiff merely sets forth the facts of his claims and concludes that Defendants generally violated his constitutional rights and the Posse Comitatus Act, see discussion infra Part III.B. Plaintiff does quote the Fourteenth Amendment in his complaint. (Compl. 13.) Plaintiff does not specifically allege that Defendants violated the Fourteenth Amendment, how Defendants violated the Fourteenth Amendment, or whether Plaintiff is attempting to state a claim under the Due Process Clause of the Fourteenth Amendment or the Equal Protection Clause of the Fourteenth Amendment.
Liberally construed, Plaintiff's claims are most properly analyzed as violations of the First Amendment (for retaliation against his exercise of his right to free speech) and the Fourth Amendment (for the unreasonable destruction and seizure of his property).
1. First Amendment
Plaintiff alleges that Defendants retaliated against him because of the monument erected on his property that criticized the Tuolumne Sheriff's Department. "To demonstrate retaliation in violation of the First Amendment, [a plaintiff] must ultimately prove first that [the defendants] took action that 'would chill or silence a person of ordinary firmness from future First Amendment activities.'" Skoog v. County of Clackamas, 469 F.3d 1221, 1231-32 (9th Cir. 2006) (quoting Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999)). Second, "[plaintiff] must ultimately prove that [the defendants'] desire to cause the chilling effect was a butfor cause of the defendants' action." Id.
Plaintiff here alleges that he engaged in constitutionally protected speech by displaying a monument on his property criticizing the activities of the Tuolumne Sheriff's Department. Plaintiff further alleges that Defendants fabricated a story to obtain a search warrant against Plaintiff, conducted "war games" on Plaintiff's property while executing the search warrant, destroyed his property, and allowed third parties to steal his property -- all in retaliation against Plaintiff's speech.
Plaintiff states a cognizable claim for retaliation against the exercise of his First Amendment rights against Defendants who retaliated against him.
Plaintiff alleges that Defendant Craig Davis used false information in order to obtain the search warrant against Plaintiff. Plaintiff alleges that Davis concocted a story in order to obtain a search warrant to harass Plaintiff in retaliation for the monument on his property. Plaintiff states a cognizable claim against Defendant Davis for retaliating against Plaintiff's exercise of his First Amendment rights.
Plaintiff alleges that Defendant Todd Blankenship authored affidavits for the purpose of obtaining the search warrants against Plaintiff. Plaintiff also alleges that Blankenship was responsible for the destruction of Plaintiff's property, including the theft of Plaintiff's dog. Plaintiff also alleges that Blankenship knowingly allowed third parties to steal Plaintiff's property by having knowledge of the crime as it was occurring and deliberately refusing to prevent it. Plaintiff also alleges that Blankenship left a gate on Plaintiff's property open to allow others to enter and steal Plaintiff's property. Plaintiff alleges that Blankenship did so in retaliation for the monument on Plaintiff's property. Plaintiff states a cognizable claim against Defendant Blankenship for retaliating against Plaintiff's exercise of his First Amendment rights.
Plaintiff also identifies a number of the officials that harassed Plaintiff by conducting "war games" on Plaintiff's property. Plaintiff alleges that Defendants Jim Earl, Dan Bressler, Lt. Ditbetter, Zack Gordon, Jeff Gimpler, Jim Mele, and A. J. Ford, were law enforcement officials from the Sheriff's Department that participated in the execution of the search warrant on Plaintiff's property on March 14, 2005. Plaintiff alleges that during the execution of the search warrant, officials unreasonably and unnecessarily destroyed Plaintiff's property in retaliation for the monument on his property. Plaintiff alleges that Defendants Ken Austin and Tom Shepard were California Highway Patrol officers that worked in concert with Defendant Blankenship in the execution of the search warrants against Plaintiff. Plaintiff alleges that they cut locks off buildings, kicked down doors, broke hinges and welds on Plaintiff's property even after Plaintiff offered the combination to the locks. Plaintiff alleges that Defendant Bernie Roberts was a parole officer that participated in playing "war games" on Plaintiff's property during the execution of the search warrant on March 14, 2005. Plaintiff states cognizable claims against Defendants Earl, Bressler, Ditbetter, Gordon, Gimpler, Mele, Ford, Austin, Shepard and Roberts for retaliating against Plaintiff's exercise of his First Amendment rights.
2. Fourth Amendment
Plaintiff alleges that during the execution of the search warrant, law enforcement and military officials ransacked his property by knocking down unlocked doors and destroying property. "Officers executing a search warrant occasionally 'must damage property in order to perform their duty.'" Liston v. County of Riverside, 120 F.3d 965, 979 (9th Cir. 1997) However, "unnecessarily destructive behavior, beyond that necessary to execute a warrant effectively, violates the Fourth Amendment." Id.
Plaintiff thus states a cognizable Fourth Amendment claim against Defendants who executed the search warrant in an unreasonable manner by wantonly destroying his property. Plaintiff alleges that law enforcement and military officials unnecessarily kicked down doors that were unlocked. see Mena v. City of Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000) (finding police officers' actions in breaking down doors that were already unlocked was not reasonably necessary to execute the search warrant). Plaintiff also alleges that Defendant Blankenship stole Plaintiff's dog based on his statement during the execution of the search warrant ("It sure would be sad if this dog were to come up missing") and the fact that the puppy would later come up missing. (Compl. 9.) Plaintiff states a cognizable Fourth Amendment claim against Davis, Blankenship, Earl, Bressler, Ditbetter, Gordon, Gimpler, Mele, Ford, Austin, Shepard and Roberts.
B. Posse Comitatus Act
Plaintiff alleges that the use of military troops during the execution of a search warrant violated the Posse Comitatus Act. 18 U.S.C. § 1385 states that
[w]hoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
The Posse Comitatus Act thus prohibits the use of Army and Air Force personnel in local law enforcement activities.
Plaintiff's claim under the Posse Comitatus Act fails for two reasons. First, Plaintiff has offered no authority, and the Court is unable to find any, that suggests that there exists a private right of action to enforce the Posse Comitatus Act. Thus, Plaintiff may not bring a civil suit for monetary compensation for an alleged violation of the Posse Comitatus Act. The Posse Comitatus Act is a criminal statute, the enforcement of which is generally left to the discretion of a prosecutor. U.S. v. Batchelder, 442 U.S. 114, 124 (1979). The Court has no power to compel a U.S. Attorney to prosecute Defendants for violation of the Posse Comitatus Act.
Second, though the statute explicitly prohibits the use of the Army or the Air Force, the statute makes no mention of the use of members of a state's National Guards in local law enforcement activities. Other courts have held that state guardsmen are not part of the Army and the Posse Comitatus Act does not prohibit the use of state National Guardsmen in local law enforcement activities. Clark v. U.S., 322 F.3d 1358, 1367 (Fed. Cir. 2003) ("The Act has been uniformly interpreted to apply to National Guard members only when they are in federal service and not when they are in service to their states"), U.S. v. Hutchings, 127 F.3d 1255, 1258 (10th Cir. 1997) ("Guardsmen do not become part of the Army itself until such time as they may be ordered into active federal duty by an official acting under a grant of statutory authority from Congress.... Therefore a national Guardsmen's participation... does not constitute a violation of the [Posse Comitatus Act]."), U.S. v. Benish, 5 F.3d 20, 25-26 (3rd Cir. 1993) (use of Pennsylvania National Guard for civilian law enforcement did not violate Posse Comitatus Act). Defendants' use of California National Guardsmen in the execution of the search warrant against Plaintiff does not violate the Posse Comitatus Act.
C. Claims Against Other Defendants
Plaintiff's allegations against the remaining defendants are vague. It is unclear what Plaintiff's claims are against these defendants, or how these defendants participated in the above claims.
1. Claims Against Defendants Rogers and Stanford
Plaintiff alleges that Defendant Richard Rogers was the "Sheriff/Coroner for the County of Tuolumne". (Compl. 3.) Plaintiff claims that Rogers was "legally responsible for the overall operation of the Tuolumne County Sheriff's Department... including the "Activation" of the California National Guard and other Military Reservists". Plaintiff alleges that Defendant Lee Stanford "is now "Acting" Sheriff/Coroner for the County of Tuolumne and is/was [a part] of these allegations". (Compl. 3.) Plaintiff alleges that Defendants Rogers and Stanford were supervisory personnel in the Tuolumne County Sheriff's Department. However, it is unclear whether either defendant directly participated in the misconduct alleged by Defendant.
Supervisory personnel are generally not liable under section 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisory position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief under section 1983 based on a theory of supervisory liability, plaintiff must allege some facts that would support a claim that supervisory defendants either: personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
It is unclear whether Rogers or Stanford personally participated in the alleged constitutional violations, knew of the violations and failed to prevent them, or implemented any policies that were so deficient that they were in themselves a repudiation of constitutional rights and were the moving force the constitutional violation. Rogers and Stanford are not liable merely for their supervisory positions over other Sheriff's Department officials that committed the constitutional violations. Plaintiff fails to state any claims against Defendant Rogers or Defendant Stanford.
2. Claims Against P. T. Jones
Plaintiff alleges that "P.T. Jones County Jail Commander is/was responsible for the actions of the T.C.S.D. "Jailers" and was to insure that Plaintiff's Rights were not Violated while "Held" in his Jail.
Plaintiff's allegations against Defendant Jones are vague. It is unclear what Jones did, or whether those actions amounted to a constitutional violation. It is unclear how Plaintiff's rights were violated while he was held in jail. Plaintiff fails to state any claims against Defendant Jones.
3. Claims Against Donald I. Segerstrom
Plaintiff alleges that Defendant Donald I. Segerstrom was the head district attorney of Tuolumne County. Plaintiff alleges that Segerstrom worked in concert with Defendants Blankenship and Davis to prosecute Plaintiff using "tainted evidence". Plaintiff alleges that Segerstrom maliciously prosecuted Plaintiff in retaliation for the monument on Plaintiff's property.
Plaintiff's allegations against Defendant Segerstrom are vague. It is unclear how Segerstrom worked with Blankenship and Davis, or whether he had any knowledge about the retaliatory purpose of the search warrants obtained against Plaintiff. Plaintiff does not allege that Segerstrom had knowledge that the story and evidence used to obtain the search warrants were concocted for retaliatory purposes. Further, Plaintiff does not allege that he was ultimately prosecuted for any crimes, what crimes he was prosecuted for, or whether Segerstrom had knowledge that Plaintiff did not commit any crimes. Plaintiff's imprecise allegations make it unclear whether Plaintiff is alleging that Plaintiff was actually prosecuted by Segerstrom, or whether Plaintiff is merely referring to Segerstrom's actions in obtaining the search warrants. Plaintiff fails to state any claims against Defendant Segerstrom.
4. Claims Against Amy Linbloum
Plaintiff alleges that Amy Linbloum is a "crime reporter" for a local newspaper. Plaintiff claims that Linbloum "tainted" the jury by writing false information given by law enforcement officials without properly investigating the facts. Plaintiff further claims that Linbloum was asked by Plaintiff's sister to hear Plaintiff's side of the story but refused.
It is unclear what Plaintiff's claim is against Defendant Linbloum. Section 1983 provides a remedy for the violation of rights by "persons acting under color of state law". It does not appear that Linbloum was acting "under color of state law" when working as a "crime reporter" for a local newspaper. Further, it is unclear what Plaintiff's cause of action against Linbloum is. Section 1983 provides a cause of action of the deprivation of rights under the Constitution or laws of the United States. It is unclear how Linbloum, in her actions as a private crime report for a local newspaper, deprived Plaintiff of any rights under the Constitution or other law.
Plaintiff's allegations against Linbloum at most support a claim for the state law tort of libel. However, Plaintiff's libel claim against Linbloum is not factually or legally related to Plaintiff's 1983 claims against law enforcement defendants. Federal Rule of Civil Procedure 18(a) allows multiple claims against a single party and Federal Rule of Civil Procedure 20(a) allows multiple parties to be joined where the right to relief arises out of the same "transaction, occurrence, or series of transactions". An unrelated claim against a separate defendant belongs in a separate lawsuit. This is not only to avoid confusion, but also to ensure that prisoners pay the required filing fees and to prevent prisoners from circumventing the three strikes rule under the Prison Litigation Reform Act.*fn1
28 U.S.C. § 1915(g). Thus, Plaintiff's unrelated libel claim against Defendant Linbloum may not be brought in the same lawsuit as his constitutional claims against separate law enforcement defendants.
IV. Conclusion and Order
Plaintiff's complaint states cognizable claims against Defendants Earl, Bressler, Ditbetter, Gordon, Gimpler, Mele, Ford, Austin, Shepard and Roberts for retaliation against Plaintiff's exercise of his First Amendment rights and seizure of Plaintiff's property in violation of the Fourth Amendment. Plaintiff's complaint fails to state claims against any other defendants. The Court will provide Plaintiff with the opportunity to file an amended complaint curing the deficiencies identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).
If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only on the claims identified in this order as cognizable, Plaintiff may so notify the Court in writing, and the Court will issue a recommendation for dismissal of the other claims and defendants, and will forward Plaintiff ten (10) summonses and ten (10) USM-285 forms for completion and return. Upon receipt of the forms, the Court will direct the United States Marshal to initiate service of process.
If Plaintiff opts to amend, his amended complaint should be brief. Fed. R. Civ. P. 8(a). Plaintiff must identify how each individual defendant caused the deprivation of Plaintiff's constitutional or other federal rights: "The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). With respect to exhibits, while they are permissible if incorporated by reference, Fed. R. Civ. P. 10(c), they are not necessary in the federal system of notice pleading, Fed. R. Civ. P. 8(a). In other words, it is not necessary at this stage to submit evidence to prove the allegations in Plaintiff's complaint because at this stage Plaintiff's factual allegations will be accepted as true.
Although Plaintiff's factual allegations will be accepted as true and that "the pleading standard Rule 8 announces does not require 'detailed factual allegations,'" "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556).
Finally, Plaintiff is advised that an amended complaint supercedes the original complaint. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). The amended complaint must be "complete in itself without reference to the prior or superceded pleading." Local Rule 15-220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. In other words, even the claims that were properly stated in the original complaint must be completely stated again in the amended complaint.
Based on the foregoing, it is HEREBY ORDERED that:
1. The Clerk's Office shall send Plaintiff a civil rights complaint form;
2. Within thirty (30) days from the date of service of this order, Plaintiff must either:
a. File an amended complaint curing the deficiencies identified by the Court in this order, or
b. Notify the Court in writing that he does not wish to file an amended complaint and wishes to proceed only against Defendants Earl, Bressler, Ditbetter, Gordon, Gimpler, Mele, Ford, Austin, Shepard and Roberts for violation of the First and Fourth Amendments; and
3. If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a court order.
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Yes, we know its not Harlem, but CUFFH is hosting a free affordable housing workshop Wednesday for available units in the newest development in Downtown Brooklyn, BAM South.
Category Archives: brooklyn
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Do you get stuck for after school snack ideas for the kids? I do! I don't like to give them chips or cookies because they have no nutritional value. These pastry hotdogs may not be as healthy as an apple but the kids love them. Happily the hotdogs are really quick to make. Four sheets of Continue reading
Cheesecake Muddy Buddies
Have you heard of Muddy Buddies before??? I hadn't until about one week ago. I stumbled across a bowl bearing a sweet snack on the internet. It was called "pumpkin pie" flavoured Muddy Buddies. I immediately consulted Wikipedia! What food exploration had I been missing? Not only was there Continue reading
Potato & Meatball Cupcakes
Why is it that children of a certain age want to eat treats instead of good food? My older kids are all fantastic, healthy eaters now, but my little ones would still fill up on junk food if I turned my back for long enough. I remember when my 16 and 18 year old were about 4 and 6. We were at my Continue reading
Chocolate Peanut Butter Bark
So how have the school holidays treated you? Lets have a sweet treat and a little chat. I've had an amazing two weeks with my little ones. As you may well imagine, most school holidays we pack in a lot of family travel. However recently we have on so many mini breaks and extended getaways that we Continue reading
Christmas Candy Cane Chocolate Bark
I have a confession to make, it is Christmas Eve and I haven't helped Santa with the wrapping of the children's presents. I also haven't made my usual Christmas Shortbread Tree; I haven't made fruit mince pies or Christmas pudding. Oh, and I've eaten all the ham! Hmm, I don't know how this Continue reading


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Applemen, Bulldogs pursue different goals
INWOOD – Martinsburg has just one game left in the regular season in its chase for history, while Musselman has two games left to pull its season together.
The teams meet tonight at Waldeck/Price Field with Martinsburg ranked No. 2 in Class AAA and Musselman's postseason hopes hanging by a thread at 4-4.
The Applemen lost last week to Washington 21-7 after going into halftime tied 7-all.
"We didn't play well. I didn't think the effort was there as good as it could've been. I didn't think the execution was there as good as it could've been," Musselman coach Brian Thomas said.
Musselman scored on its first possession on a 16-yard pass from Camdan Shade to Steven Brown. Shade completed only 4 of his 14 passes for 38 yards and had three interceptions.
"We have to get production out of the quarterback position," Thomas said.
For Martinsburg, production from the quarterback led to the majority of its scoring in a lopsided win over Jefferson last week.
Quarterback Malique Watkins and running back Deamonte Lindsay combined for 320 of the Bulldogs' 350 rushing yards and were responsible for all but one of the team's eight touchdowns. Lindsay opened up the game with a 64-yard touchdown run minutes into the game. Watkins ran in the following six touchdowns before Troy Walker caught the final touchdown pass.
"I thought (Watkins and Lindsay) both played well. They just got to continue playing well if we're going to have success," Martinsburg coach Dave Walker said.
Musselman knows its defense must stop the various Martinsburg weapons to stay in the game.
"They have arguably the best player in the state. We have to try to contain him," Thomas said of Watkins.
Watkins dealt with a shoulder injury earlier this season against Tuscarora, Va., and has been getting back into his game. He has 1,177 yards rushing and 504 yards passing, completing 38 of 71 passes.
"He's back 100 percent," Walker said. "At least, he's not complaining if it isn't."
While Martinsburg relies on a few players who have proven their talent over and over, Musselman tends to spread the ball out more, using multiple ballhandlers each game.
A problem for Musselman is relying on the number of players it does. A breakdown at a single position affects the entire team.
"The big thing, we just have to play assignment football," Thomas said. "Everybody's got to do their job."
Martinsburg knows that when the Applemen are on, they play tough, so the Bulldogs aren't taking anything for granted.
"It's hard to key in on one kid," Walker said. "They have the ability to throw the ball. You have to respect their passing game."
The focus of both teams during practice this week was on themselves.
Musselman tries to make sure everybody hits their assignments in addition to continuing to run the offense at its best.
"We've been working on running our stuff, execution and timing more than anything," Thomas said.
The Bulldogs find their problems not so much in on-field play as in their own heads.
"We still made some mental mistakes, things we've got to clean up," Walker said.
Martinsburg and Musselman alike come into the game with hopes of playing a clean game.
"We just have to play well. My big thing is we have to play as a team," Thomas said.
Walker also expects his team to play fundamentally sound in what he classifies as a classic matchup.
"It's Martinsburg-Musselman. It's always an exciting atmosphere," Walker said. "I think it'll be a good football game."


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United States District Court, E.D. New York
April 7, 2014
ELIZABETH LUNA, Plaintiff,v.NORTH BABYLON TEACHER'S ORGANIZATION and SELINA DURIO, Defendants
Page 397
For Plaintiff: Eric S. Tilton, Esq., of Counsel, Eric S. Tilton, P.L.L.C., Babylon, NY.
For Defendants: Steven A. Friedman, Esq., of Counsel, New York State United Teachers Office of General Counsel, Richard E. Casagrande, New York, NY.
Page 398
ARTHUR D. SPATT, United States District Judge.
On November 14, 2013, the Plaintiff Elizabeth Luna (the " Plaintiff" ) commenced this action, alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq (" Title VII" ) and New York State Human Rights Law, New York Executive Law § § 290, et seq.
Page 399
(" NYSHRL" ) arising from the termination of her employment as Election Chair for the Defendant North Babylon Teachers Organization (the " Union" ). Also named as a Defendant is the Union's President, Selina Durio (" Durio" ).
On February 6, 2014, the Union and Durio (collectively the " Defendants" ) moved pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons set forth, the motion is granted in part and denied in part.
Unless stated otherwise, the following facts are drawn from the complaint and construed in a light most favorable to the Plaintiff.
The Plaintiff is employed as a teacher in the North Babylon School District. As such, the Plaintiff is a member of the Union, the recognized exclusive bargaining agent for more than 650 district employees.
Beginning in 2006, the Plaintiff served as an Election Representative for the Union.
Beginning in 2009, the Plaintiff served, in an unpaid capacity, as the District-wide Election Chairperson for the Union. The Plaintiff's duties as the Election Chair were to coordinate and carry out the Union's internal elections which were held in the spring of each year.
Also, beginning in 2009, the Plaintiff served as the Union's Political Action Chair, along with her husband, Kenneth Luna. This position was a paid position that offered the Plaintiff and her husband a stipend of $800 per year.
In December 2011, the Plaintiff's husband, also a member of the Union, informed Durio that the Plaintiff was pregnant and that her delivery date was approximately May 18, 2012.
On January 10, 2012, Durio allegedly emailed the Plaintiff and removed the Plaintiff from her position as the Election Chairperson for the upcoming Union election to be held on May 16, 2012. Specifically, she stated as follows: " Since you will be out for part of the Spring, I have chosen a new Election Chair for this year so that the election will be covered." (Compl. ¶ 15.)
After the Plaintiff emailed Durio, voicing an objection to her removal as the Election Chair, Durio sent a follow-up email to the Plaintiff that stated:
When I had a discussion with your husband about another issue he mentioned the time you were due around, which coincides with when most of the things the election chair would need to do.
Your email leads be to believe that you feel this is a personal issue and it is not[; ] it is just an issue of timing and what I feel is best for the [Union].
(Id. ¶ 16.)
The Plaintiff alleges that Durio's emails reflected a " stereotypical assumption" that the Plaintiff would need to take time off from her work due to her pregnancy. In addition, the Plaintiff asserts that Durio failed to provide the Plaintiff and her husband with information critical to their jobs as the Co-Chairs of the Political Action Committee.
The Plaintiff insists that any need for her to take maternity leave from her employment with the school district would not have hindered her ability to serve as Election Chair or Co-Chair of the Political Action Committee for the Union.
At some point, the Plaintiff filed a Charge of Discrimination with the United
Page 400
States Equal Employment Opportunity Commission (" EEOC" ).
On July 11, 2013, the EEOC issued a finding of probable cause with respect to the Plaintiff's Charge of Discrimination. On August 20, 2013, the EEOC mailed to the Plaintiff a Notice of Right to Sue with respect to the Charge of Discrimination.
As noted above, on November 14, 2013, the Plaintiff commenced this action, asserting gender discrimination on the basis that the " Defendants have discriminated against [her] in the terms, conditions, and privileges of her employment and her union membership in that she has been removed from the aforementioned positions within the Union in violation of Title VII of the Civil Rights Act of 1964 and New York State Human Rights Law." (Id. ¶ 25.) The Plaintiff brings her Title VII claims against the Union only, and in two different capacities, as an " employer" and a " labor organization." The Plaintiff seeks monetary damages and injunctive relief, including reinstatement to her positions within the Union.
On February 6, 2014, the Defendants moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. In particular, the Defendants submits documentary evidence tending to show that the Union is not an " employer" subject to Title VII. The Defendants also contend that the Plaintiff's Title VII claim against the Union as a " labor organization" fails as a matter of law because her allegations are centered upon her alleged status as an employee of the Union, not as a member of the Union.
A. The Standard for a Rule 12(b)(6) Motion
Under Fed.R.Civ.P. 12(b)(6), a party's complaint survives a motion to dismiss when it " contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard is met " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. If the factual allegations " raise a right to relief above the speculative level," a court should not dismiss a complaint for failure to state a claim.
Twombly, 550 U.S. at 555, 127 S.Ct. 1955, 167 L.Ed.2d 929. Federal Rule of Civil Procedure 8(a)(2) requires a pleading to contain " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). While Rule 8 " does not require 'detailed factual allegations'[,] it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955, 167 L.Ed.2d 929). The court's function " is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 176 (2d Cir. 2004) (quoting
Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)). " [T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) (citation and quotation marks omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the court " must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the
Page 401
non-moving party." Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008) (citation and internal quotation marks omitted); see also
Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010). However, " [c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citation and internal quotation marks omitted).
To assess whether a complaint states a plausible claim for relief, the Supreme Court has suggested a " two-pronged approach." Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting
Iqbal, 556 U.S. at 679, 129 S.Ct. 1937, 173 L.Ed.2d 868). First, a court should begin " by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."
Iqbal, 556 U.S. at 679, 129 S.Ct. 1937, 173 L.Ed.2d 868. " While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, " [w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
Finally, when reviewing a motion to dismiss, " the court limits its considerations to: (1) the factual allegations in the complaint; (2) documents attached to the complaint as exhibits or incorporated in it by reference; (3) matters of which judicial notice may be taken; and (4) documents that are 'integral' to the complaint." Davis v. NYC Dep't of Educ., No. 10-CV-3812, 2012 WL 139255, at *3 (E.D.N.Y. Jan. 18, 2012); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (noting that " even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint 'relies heavily upon its terms and effect,' which renders the document 'integral' to the complaint" ).
B. As to the Title VII Claim Against the Union as an " Employer"
Title VII defines " employer" as " a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b). Thus, liability under Title VII does not extend to employers with fewer than fifteen employees. See Arculeo v. On--Site Sales & Marketing, LLC, 425 F.3d 193, 202-03 (2d Cir. 2005) (affirming summary judgment for the defendants because the plaintiff failed to raise a question of material fact regarding whether the defendant employed fifteen persons); see also Jacobson v. Int'l Tours and Events, LLC, No. 3:09-cv-1050 (JCH), 2010 WL 5211488, at *2 (D. Conn. Dec. 10, 2010). " [A] Title VII defendant wishing to defeat a plaintiff's claim on the ground that it lacks fifteen employees is normally entitled to seek dismissal if the complaint shows on its face that the element of statutory coverage is lacking, or to seek summary judgment on that issue if undisputed facts can be presented to defeat coverage." Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 365-66 (2d Cir. 2000).
As noted above, the Defendants have submitted evidence, including a list of individuals employed by the Union; the tax status of those individuals; and a copy of the Union's Constitution, in support of their argument that the Union is not a covered " employer" under Title VII. However, the Court exercises its discretion not to convert the Defendants' motion to one for summary judgment because the Plaintiff has not had an opportunity, after discovery, to present evidence in response.
Page 402
See e.g.,
United States v. Rivieccio, 661 F.Supp. 281, 288 (E.D.N.Y. 1987) (" Although both sides have briefed the issue in depth, the court is reluctant to convert the motion to dismiss into one for summary judgment, see Fed.R.Civ.P. 12(b), because there has yet to be discovery on the question" ); cf. Rovira v. New York Apparel Sales, 01 CV 2231 (ILG), 2002 WL 1471557, at *2 (E.D.N.Y. May 31, 2002)(since the plaintiff " has had an opportunity to present evidence in response" to the defendants' motion to dismiss, it is converted to a motion for summary judgment). " At this juncture, having received only evidence from the Defendants on the fifteen-employee requirement of Title VII, the Court cannot say definitively that discovery will not bolster Plaintiff's position on this issue." Fernandez v. M & L Milevoi Mgmt., Inc., 357 F.Supp.2d 644, 648 (E.D.N.Y. 2005).
The Defendants' characterization of the fifteen-employee requirement under Title VII as a required " threshold" or " predicate" showing to a Title VII claim does not dictate otherwise. In this regard, the Supreme Court of the United States has held that the " number of employees for application of Title VII is an element of a plaintiff's claim for relief, not a jurisdictional issue." Arbaugh v. Y & H Corp., 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Thus, the Court may not construe the Defendants' motion to dismiss as one made under Fed.R.Civ.P. 12(b)(1) challenging subject matter jurisdiction, wherein a court may look beyond the complaint to such things as affidavits or other documents. See Kamen v. AT & T, 791 F.2d 1006, 1011 (2d Cir. 1986).
The Court further finds that the submitted documents were not " integral" to the complaint so that the Court may consider them on a motion to dismiss. To be " integral to a complaint, the plaintiff must have (1) actual notice of the extraneous information and (2) relied upon the documents in framing the complaint." DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 60 (S.D.N.Y. 2010) (citations and internal quotation marks omitted). Neither element is satisfied here. Contrary to the contention of the Defendants, there is nothing to indicate that the Plaintiff had actual notice of the number of employees within the Union or had access to such information. Nor is there any indication that the Plaintiff relied on this documentary evidence or the information contained therein.
Accordingly, the Court denies the Defendants' motion to dismiss the Plaintiff's Title VII claim, against the Union, as an employee of the Union on the ground that the Union is not an " employer" for the purposes of Title VII, without prejudice to later motion practice, if appropriate.
C. As to the Title VII Claim Related to the Plaintiff's Status as a Union Member
Discrimination by unions is prohibited by Title VII, which makes it " an unlawful employment practice for a labor organization . . . to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(c)(1)(emphasis added); see Yerdon v. Henry, 91 F.3d 370, 375 (2d Cir. 1996) (finding that a labor union could be liable under Title VII).
In the Court's view, the Plaintiff's allegations as to her alleged employment relationship with the Union are conclusory and fail to satisfy the liberal pleading standards in Title VII cases. See e.g. Yusuf v. Vassar College, 35 F.3d 709, 713-14 (2d Cir. 1994) (dismissing the claims based on the plaintiff's conclusory assertions of racial
Page 403
and gender discrimination against a university); Timmons v. City of Hartford, 283 F.Supp.2d 712, 717-18 (D. Conn. 2003) (dismissing the complaint based in part on the fact that no factual allegations were provided in support of the discrimination claim); Richards v. Frank, No. CV-89-3087, 1991 WL 35502, at *1-*2 (E.D.N.Y. Mar.6, 1991) (holding it appropriate to grant a motion to dismiss a discrimination claim where claim is not supported by factual allegations). The only nonconclusory allegations of discrimination against the Plaintiff in the complaint relate to her status as a Union employee, rather than her status as a Union member. As the Defendants argue, there is no allegation that she was denied any right or privilege of union membership, or that the Union failed to take action on her behalf as a member, much less any action on the basis of gender.
In opposition to the present motion to dismiss, the Plaintiff argues that that she was " denied an opportunity that every other member of the union has -- the ability to belong and participate in union committees for the purpose of conducting union business, gaining experience in those roles which could help her in the future, and garnering the admiration of her peers in the union." (Plf's Mem, at 10.) Even if this allegation were sufficient to withstand Rule 12(b)(6) scrutiny, the " Plaintiff may not amend h[er] complaint through motion papers and the Court will not consider th[ese] newly raised [allegations]."
Willner ex rel. Willner v. Doar, 12-CV-1955 (RRM)(RER), 2013 WL 4010205, at *5 (E.D.N.Y. Aug. 5, 2013); see also Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (rejecting a new claim raised for the first time in the plaintiff's opposition to a motion to dismiss).
Accordingly, the Court grants the Defendants' motion to dismiss the Plaintiff's Title VII claim, against the Union, as a member of a " labor organization." However, as the Plaintiff may be able to make additional, cognizable allegations in this regard, she is given thirty days from the date of this order to file an amended complaint.
In sum, the Court grants in part and denies in part the Defendants' motion to dismiss. The Court grants the motion as to the Plaintiff's Title VII claim, against the Union, as a member of a " labor organization" and dismisses that claim without prejudice. The Plaintiff is given thirty days from the date of this order to file an amended complaint. The Court otherwise denies the motion to dismiss.
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decided: July 27, 1979.
ELIZABETH S. EXNER, APPELLANT,v.GEORGE V. EXNER
No. 1317 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Bucks County, Pennsylvania No. 74-2723-02-6 and No. 74-4267-07-1.
Janet Duffy Carson, Philadelphia, for appellant.
J. Eric Atherholt, Doylestown, for appellee.
Van der Voort, Wieand and Lipez, JJ.
[ 268 Pa. Super. Page 255]
In this assumpsit action for breach of a separation agreement, the Court of Common Pleas of Bucks County granted husband-appellee's motion for summary judgment on the ground that a prior judgment in equity in favor of appellant was res judicata and barred the action. We affirm.
[ 268 Pa. Super. Page 256]
Prior to divorce, the parties to this action entered into a separation agreement on April 17, 1973, which provided in pertinent part:
"Husband agrees to pay to Wife the sum of $200.00 per week as alimony. Each year this figure shall be increased by $10.00 per week beginning with the first payment in January of that year."
On April 15, 1974, appellant brought an assumpsit action alleging that her former husband had failed to pay monies due under this agreement for the period from January 14, 1974, through January 28, 1974. During the pendency of this action, appellant commenced a second assumpsit action on May 8, 1974, in which she alleged that after February 15, 1974, husband-appellee had further breached the separation agreement by tendering only partial payments. These actions were consolidated by stipulation of the parties. On January 10, 1975, while the consolidated assumpsit actions were pending, wife-appellant brought an action in equity in which she alleged continuing defaults and requested specific performance of the separation agreement. On November 10, 1975, the court granted wife-appellant's motion for summary judgment in the equity action and entered the following decree:
"AND NOW, this 10th day of November, A.D., 1975, upon consideration of the Plaintiff's Motion for Summary Judgment and Memorandum in support thereof and Defendant's Memorandum in opposition thereto, it is hereby ORDERED and ADJUDGED and DECREED that (a) Defendant, George V. Exner, shall specifically perform the Agreement entered into by Plaintiff, Elizabeth S. Exner, and Defendant, George V. Exner, as of April 17, 1973, by paying to the Plaintiff, Elizabeth S. Exner, all amounts of money due and owing under the Agreement as they fall due; (b) Defendant, George V. Exner, is hereby permanently enjoined and restrained from failing or refusing to pay to Plaintiff, Elizabeth S. Exner, all amounts of money due and owing under the Agreement as they fall due; and (c) Defendant, George V. Exner, shall specifically
[ 268 Pa. Super. Page 257]
perform the aforesaid Agreement, paying forthwith to Plaintiff, Elizabeth S. Exner, all arrearages which have accrued under the Agreement to date of this Decree, together with interest on said sum at the legal rate and costs of this action."
Following entry of this decree in the equity action, wife-appellant next filed a motion for summary judgment in the consolidated assumpsit actions. Husband-appellee thereupon filed his own motion for summary judgment. The trial court held that the doctrine of res judicata precluded appellant from pursuing the consolidated assumpsit actions because the rights and liabilities of the parties under the support clause of the separation agreement had been finally adjudicated in the equity action.
The doctrine of res judicata holds that a final judgment on the merits is conclusive of the rights of the parties and constitutes a bar to a subsequent action involving the same claim, demand or cause of action. Lebeau v. Lebeau, 258 Pa. Super. 519, 525, 393 A.2d 480, 482 (1978); Jenkins v. Jenkins, 246 Pa. Super. 455, 463, 371 A.2d 925, 929-30 (1977). The principle serves to expedite the consideration of individual cases, to establish the certainty and finality of court judgments and to protect a party relying on the prior adjudication from vexatious litigation. Lebeau v. Lebeau, supra; McCarthy v. Twp. of McCandless, 7 Pa. Commw. 611, 615, 300 A.2d 815, 819 (1973). It is applicable only upon the concurrence of four conditions: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975); Lebeau v. Lebeau, supra. Because an adjudication in equity is as conclusive as a judgment at law, however, it is of no consequence that the earlier suit was brought in equity and the later action at law. Schlichtman v. Crawford, 337 Pa. 497, 12 A.2d 52 (1940); State Hospital for Criminal Insane v. Consolidated Water Supply Co., 267 Pa. 29, 110 A. 281 (1920).
[ 268 Pa. Super. Page 258]
Appellant asserts that because the cause of action in the equity suit is not identical to the cause of action at bar, the doctrine of res judicata is inapplicable. Specifically, she argues that each breach of the separation agreement gives rise to a new and distinct cause of action, and that the judicial determination of one such breach does not operate as a bar to succeeding causes of action for subsequent breaches. We agree with appellant that the separation agreement was a severable contract, and that a separate suit could have been maintained for each unpaid installment. See: Bryen & Weil, Inc. v. French & Keeley, Inc., 103 Pa. Super. 573, 157 A. 367 (1931). However, appellant, in this case, apparently wishing to avoid the inconvenience and expense of bringing successive actions in assumpsit, instituted an action in equity to compel appellee to perform specifically the separation agreement by paying not only monies due but also those payments to become due in the future. The complaint in equity recited all prior defaults, including those alleged in the prior assumpsit actions. Payment of monies due by virtue of prior breaches was within the court's decree that appellee pay "all arrearages which have accrued under the Agreement to date of this Decree."
It is clear, therefore, that the causes of action alleged in the consolidated assumpsit actions were included among the breaches of contract averred and decided in the equity action. Under these circumstances, the final decree in equity bars further litigation of the consolidated assumpsit actions. Appellant's remedy if appellee fails to comply with the support terms of the agreement is an appropriate action to enforce the equity decree.*fn1 See: Zlotziver v. Zlotziver, 169 Pa. Super. 588, 83 A.2d 429 (1951); Restatement of Judgments § 47 (1942).
Order affirmed.
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14 Jun 2014, 01:50pm by Tom Gower
The legendary Steelers head coach passed away Friday at 82. Noll, who turned around a Pittsburgh franchise that had been pathetic for virtually its entire history until his hiring in 1969, is the only head coach to win four Super Bowls. He had a career record of 193-148-1 in the regular season. RIP, and condolences to his family and friends.
4 comments, Last at 19 Jun 2014, 1:15am by Pen
12 Jun 2014, 11:59am by Tom Gower
The Chargers had a bigger need than they could fill, the Broncos continue to ignore middle linebacker, the Raiders need a solidified offensive line, and the Chiefs need someone who can catch a football.
8 comments, Last at 16 Jun 2014, 2:08pm by Vince Verhei
07 Apr 2014, 07:01pm by Tom Gower
Ray Rice, Jamaal Charles, or Chris Johnson? Welcome to the last NFL draft where running back was a position of emphasis.
94 comments, Last at 15 Apr 2014, 10:57pm by ihavechappedlips
04 Apr 2014, 02:47pm by Tom Gower
The Titans made the inevitable official today, informing running back Chris Johnson he will be released. In a statement released by general manager Ruston Webster, they noted they tried to trade him but failed, unsurprisingly considering his scheduled $8 million salary. (Click to read more commentary.)
13 comments, Last at 10 Apr 2014, 12:36am by The Ninjalectual
17 Feb 2014, 03:01pm by Tom Gower
The Broncos and Chargers need to work on their secondary, the Chiefs need better play from the offensive line, and the Raiders ... well, they need just about everything.
32 comments, Last at 03 Mar 2014, 3:22pm by brianbigger
01 Feb 2014, 08:19pm by Tom Gower
Congratulations to Derrick Brooks, Ray Guy (seniors candidate), Claude Humphrey (seniors candidate), Walter Jones, Andre Reed, Michael Strahan, and Aeneas Williams for their election to the Pro Football Hall of Fame.
Among the other ten names that made it to the room, Jerome Bettis, Kevin Greene, Charles Haley, Marvin Harrison, and Will Shields reportedly made the cut to ten. Morten Andersen, Tim Brown, Eddie DeBartolo, Tony Dungy, and John Lynch were eliminated in the first round of voting.
123 comments, Last at 27 Feb 2014, 11:49am by Noah Arkadia
17 Jan 2014, 01:44pm by Tom Gower
How the loss of Von Miller and Chris Harris could hurt Denver's pass defense: coverage seems to be a bigger problem than pass rush.
0 comments
09 Jan 2014, 11:11am by Tom Gower
Bruce Allen gets his man. The Bengals need a new offensive coordinator, who will reportedly be Hue Jackson.
42 comments, Last at 11 Jan 2014, 9:18pm by LionInAZ
01 Jan 2014, 09:48pm by Tom Gower
Deal getting finalized right now, per Jay Glazer.
No report on who the Buccaneers are getting at general manager, also a need since Tampa fired Mark Dominik as well as Greg Schiano, but this is the kind of hire the Bucs needed. Following up on the inexperienced Raheem Morris with straight-from-college Schiano was not a good recipe for success in my view. Previous reports had former Cal head coach Jeff Tedford becoming Lovie's offensive coordinator wherever he landed, for the big hire.
33 comments, Last at 03 Jan 2014, 5:53pm by Roch Bear
31 Dec 2013, 11:20pm by Tom Gower
Per Adam Schefter and Chris Mortensen, the Houston Texans have hired Penn State coach Bill O'Brien as their next head coach. Bill, meet Teddy Bridgewater. Teddy, meet Bill.
39 comments, Last at 06 Jan 2014, 5:41pm by Mr Shush


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SAMG - The linear solver for groundwater simulation. SAMG (Algebraic Multigrid Methods for Systems) is a very mature program package being used for the efficient solution of linear sparse systems of equations in many commercial simulation codes. In particular, in groundwater and porous media simulation it has been introduced as the primary numerical solver module in FEFLOW 6. ..
Keywords for this software
References in zbMATH (referenced in 1 article )
Showing result 1 of 1.
- Wang, Lu; Hu, Xiaozhe; Cohen, Jonathan; Xu, Jinchao: A parallel auxiliary grid algebraic multigrid method for graphic processing units (2013)


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The myTrust portal gives you access to personalized information about claims, enrollment, all your WEA Trust benefits.
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Placemaking Strategy Development Opt. 2 Workshop: Clinton Township
Date: May 7, 2015
Location: MSUE Macomb County, 21885 Dunham Road, Verkuilen Building #12, Clinton Township, MI 48036
Time: 1:30-8:30 p.m.
Registration: Register online
Local Contact: Terry Gibb, MSU Extension, (586) 469–5180
The MIplace Partnership Initiative, in cooperation with the Michigan State Housing Development Authority, the Michigan Municipal League, the MSU Land Policy Institute, and MSU Extension Land Use Educators, prepared a six-module Placemaking Training Curriculum two years ago. Hundreds of training programs have been offered throughout Michigan since then to more than 11,000 people. This year, from March-May, the LPI and MSU Extension are co-hosting more than 30 training workshops to be offered in communities across Michigan on Placemaking Strategy Development.
The purpose of this training is to assist your community with the development of a draft placemaking strategy. This option 2 workshop involves two parts and runs six (6) hours.
- The first part provides training from Modules 1-3 of the MIplace Placemaking Curriculum.
- During the second part, we will supply facilitators to assist representatives of your community in developing a draft placemaking strategy.
This workshop is for city councils and township boards; local, county and regional planning commissioners and staff; local economic development staff and other interested stakeholders. Communities will need multiple participants attending to maximize synergy and benefit for the community.
For those who attend both parts, the Michigan Citizen Planner is offering six (6) CEUs (continuing education units), one (1) CEU/ one (1) hour of instruction, to Master Citizen Planners for their participation.


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Candlestick Patterns in a Single Page to Learn & Earn
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Balthazar: "Brunch in the City" Balthazar Tip by rosie_b
Balthazar, New York City: 23 reviews and 15 photos
WIthout a doubt, Balthazar always serves the best breads, especially when you get them fresh in the morning. For dinner and lunch, the menu is good and everytime I go there for either lunch or dinner, the quality of the food is always great. They always cook the food in correct temperature and the seasoning is always right on the money. But at most times, I like going there for the weekend brunch. I think they have the best classic brunch menu in the whole city. When you want to go, make sure you have a reservation. If you don't, you have to wait for 45 minutes to an hour to get a table or if you lucky, you can get a bar seating right away. If you want to avoid the crowd during the weekend, you can always get their breakfast weekdays from 7:30 to 11:30 am.
Favorite Dish: My favorite item for brunch is the classic Eggs Benedict and Eggs in Puff Pastry. The eggs are cooked perfectly (especially for the Eggs Benedict, they were poached but not overcooked). A glass of freshly squeezed orange juice and a cup of cappucino with your meal is just right to start your day.
Address: 80 Spring St, Manhattan, NY 10012
Price Comparison: about average
Directions: SOHO.
Phone: 212-965-1414
Price: US$21-30
Rating: 4
Theme: French
Website: http://www.balthazarny.com
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