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|This is a discussion on Is your bet-sizing according to your equity? within the online poker forums, in the Learning Poker section; After reading the thread on how to do a basic calculation on pot odds and equity, I was wondering if you guys size your bets
Is your bet-sizing according to your equity?
After reading the thread on how to do a basic calculation on pot odds and equity, I was wondering if you guys size your bets according to this. Or is your bet sizing unrelated to your odds and equity?
Possibly stupid question but I'd just like to know.
I'm having problems with bet-sizing.
1. I have a monster hand and I made it on the flop (i.e hitting a set or straight) and the villain just hits top pair. If the pot is, for example 850, how should I bet to gain maximum value?
I know that this q is about the post flop play but just want to add that pre flop you should never sizing your bets according to your starting hand, that could be really good tell and perceptive opponent will fast take advantage of that play. So keep your pre flop bet same size for every hand, what you might do, according to Phil Gordon, is that you can bet bigger from early position and bet smaller from late position, but still it should be unrelated to the strength of your starting hand.
Now post flop, following the same logic your bet should be same or close sized whatever hand you flop and imho it should never be smaller that half of the pot size, somewhere between 2/3 and 3/4 of the pot is good thing, now it you have a note or realize that someone is a calling station you could increase your pot bet to the max that he will call if he keep calling every next hand you bet slightly more (important note, you do that only with strong hands, and if you are facing a calling station you should never try to bluf him) you should take as much money as you can and you'll do that by sizing your bet to the max that he will call, don worry if he calls your bet with draws, smart sized bet will make you money long term even if he hits his draw every now or then but even when he does he was playing against the odds and he still losing. Other thing when you flop a set or straight, you should bet more if there is a draw to a better hand then your (straight draw to your set or flush draw to your straight). Then again, there is few different scenarios of flopping a straight, top straight or bottom straight, now you see that bottom one can be easily dominated, according to Phil Gordon, it is ok to bet bigger on flop and take it right there because you can easily be dominated on later streets...
Another thing it is better to take initiative with made hand and call with draws if you have good odds to call, that only exclude monster draws like the one we talked in previous tread, but wit oesd and fd it is better to keep it smaller until you hit, with made hand like set, tptk, 2 pairs it is better to take initiative and bet accordingly to the flop and info on your opponents as we already said
Now to make this shorter if you wanna simplify things for freerols and low buyin tourneys bet between 2/3 of the pot and pot sized bet is OK IMHO
Hope this hepls
Hey DrazaFFT, thanks a lot
As mentioned, I really have a problem when it comes to bet-sizing. Especially more so when I have to combine it with position. Having read the stuff on CC as well as PSO, I know that I should bet big pre-flop when I have monster hands.
1. To push out the limpers, narrow down the field of play.
Now when it comes to flop, as you mentioned that I should bet at least more than half the pot. This should be done if I have a made-hand? Or to test my opponent's strength? And should this be done even when I am the first to act (I am assuming usually that when I get into these situations that I am the last to act)?
However, for them to do this, they must not only be aware enough to notice, they must also be capable of adapting how they play against you. At the entry levels, there are still plenty of players who can't do both these things. It's not a good idea to vary your bet sizes against these players either, but for a different reason, which is that it's a poor habit to get into.
Also, in tournament play, it's fairly common to change your opening bet size as the blinds rise relative to the stacks. This is not dependent on hand strength. So for example, you might open for 3bb when the blinds are small, but 2.5 or even less later on when they're higher.
re: Poker & Is your bet-sizing according to your equity?
Thank you for the help!
Yea I agree with betting the same on pre-flop. I always min-raise no matter what I am holding pre, so I don't let them know I have AA when I have it. I am still learning post flop play but I tend to put 1/2 the pot when I do bet.
Ok so this post will address OP and Everton as well.
In a sense we do want to size our bets according to our equity postflop. If we are the aggressor postflop and pick up middle pair and decide to cbet I am not going to pot it.
When do we want to size larger? Mostly when we have a hand that's strong already but can easily be drawn out on. For example, we open JTo in LP, and the blinds (TAGs) both call. The pot is now 9bb. The flop comes JT9 with two flush cards. We have a strong hand here and flopped very well BUT we can easily run into scary turn/river cards. So here I would elect to bet pot or close to it. We want them to pay for their draws and one pair hands like AJ.
Now let's change it up a bit. Same scenario JTo and both blinds call. Flop comes J72 rainbow. Here I will only bet around 2/3 and if only one caller pre, maybe 1/2 pot. There just isn't much on this flop that we are worried about so at this point we aren't charging draws so much as trying to keep in smaller pocket pairs that will peel one off.
As for Everton, you need to learn to change your bet sizing according to board texture and your opponents ranges. Just saying whenever we bet, we tend to bet 1/2 pot just has no meaning or reasoning behind it. We want a reason for betting the sizes we bet. Same with our cbet bluffs. Depending on the opponent (if they have high fold to cbet %) I will opt for half pot bet to take it down. If we start to realize they like calling here too much, we try 2/3 and so on. So go to 2nl if you're playing above this limit and experiment on what works and what doesn't.
Also in cash games I think its best to 3x from any position. Some will say to min raise from EP and 3x from LP/SB. In 6max I just can't agree with this. In FR I can see it being useful to add more hands to our EP range for cheaper. edit: We can size bigger depending on bad opponents to our left that are calling off with any two cards preflop. We hold AA in SB and BB is a whale and calls 5bb opens regularly, we should go ahead and open 5bb. If they are willing to call 10bb opens regularly, make it 10bb etc.
Geez this is turning into a novel. Last point: Back to OP. In tournaments generally early on it's fine to open 3bb from any position but once the average stack gets to around 50bb, I will start 2.7x, then when stacks get shallower, I will go 2.5, then 2.3 and finally when average stacks are sitting around 20-30bbs I will open 2bb for the remainder of the tournament. UNLESS you have a whale to your left that will call off large bets. Then I will open larger with premium hands QQ+ AKs w/e.
Hope this post helps out a bit. I'm on no sleep so if it's actually a mess let me know and I'll go into more depth.
For Blobweird123:
Firstly, thank you for that insight.
To add-on as well. The more callers there are pre-flop, should I be betting more to push them out if I hit middle pair? This is based on both scenarios that you gave.
the wetter the board the more you need to size your bets for not to be drawn out on....and if the villian calls you down and is getting the wrong odds to chase his flush/straight draw then you gain and he losses overall, even if he does hit his hand by the river.......if its a dry board and you dont think that villian has a drawing hand and your hand is good enough to bet then make it 1/2....put villians on ranges and assess it with the texture of the board and bet according to your reads....make them pay and give them good odds if you are way ahead so that you are not over pricing things for value........unless they are a spewbox then you can pot it on every street coz you know he will call lol
Edit: now you can see why position is sooo important. We have the control to check and get a free turn card here whereas if we opened cutoff and button calls, he is prone to betting and we have to sigh weakly check/fold on scary flops.
Hand 2 lets say we have 99, I'm betting 2/3 here all day hoping for folds since really only Jx and overs are gonna call.
So basically with weaker middle pair hands, the more people in the pot on a drawy board the more I'm inclined to just peel to a 1/2 pot or less donk bet (if they do) or check behind and fold turns that don't improve our hand.
I didn't think to change the way I play when I first started to play a 9 handed 2nl game so I was lucky to get a profit out of it. Would be ok to use the small ball playing SnG 180 man?
re: Poker & Is your bet-sizing according to your equity?
I have STOPPED min-raising in the early stages of the tournament
Agree with most post. Equity and odds are used for calling/trapping in my opinion bet sizing depends mainly on table dynamics and player reads.
When I say player reads I mean what will fold possible better hands when bluffing and semi bluffing and what will get worse hands to call or better yet induce raise. All depends on the table, the player and your image at the table. I keep my opening pretty standard at 2.5-3bb. 10%limp 5% raise 4-5bb. That's cash tournament contain more variables.


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State of New York Supreme Court, Appellate Division Third Judicial Department
January 14, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.SHANTANE JOSEPH, APPELLANT.
Calendar Date: November 4, 2009
Before: Cardona, P.J., Peters, Lahtinen, Malone Jr. and Stein, JJ.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered June 6, 2008, which revoked defendant's probation and imposed a sentence of imprisonment.
In January 2004, defendant was convicted of attempted criminal possession of a controlled substance in the third degree and was sentenced to five years of probation. Following her arrest in March 2008 for various crimes, she was charged with violating the terms of her probation. Defendant subsequently pleaded guilty to the probation violation and waived her right to appeal. Her probation was revoked and she was sentenced, in accordance with the plea agreement, to 2 to 6 years in prison. Defendant now appeals.
Defendant's sole claim is that the sentence is harsh and excessive. She is precluded, however, from raising this claim by her knowing, voluntary and intelligent waiver of the right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Dillon, 61 AD3d 1221, 1222 [2009]; People v Borom, 55 AD3d 1041, 1042 [2008]).
Cardona, P.J., Peters, Lahtinen, Malone Jr. and Stein, JJ., concur.
ORDERED that the judgment is affirmed.
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Thread: X7DCL-i RAM issues?
07-15-2009, 11:58 AM #1Rockin' the beer gut
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X7DCL-i RAM issues?
I have a X7DCL-i here..
Board works fine with my dual L5410's in it, posts, great.
My problem is with the RAM. I have 4 4GB DDR2-667 ECC Registered DIMM's.
The box posts with any one stick just fine, and the same with any 2 sticks. Whenever I put all 4 in, or all 4 and the 2 2GB's I have, the box won't post and just beeps.
I called SuperMicro, and they blamed it on the revision of the board, and it only works with 2 slots. So the board has 6 slots but you can only use 2?
Anyone else had an issue like that?simplywww: directadmin and cpanel hosting that will rock your socks
Need some work done in a datacenter in the NYC area? NYC Remote Hands can do it.
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07-15-2009, 12:09 PM #2Web Hosting Master
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Hello Dougy, to use more than two sticks of RAM you have to purchase single rank DIMMs.
07-15-2009, 01:14 PM #3Web Hosting Master
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X7DCL-I version 1.1A or later supports 6pcs dual-rank 4G ECC reg modules. version 1.1 or earlier supports 2pcs dual-rank or 6pcs single-rank modules.
also, version 1.1 doesn't support KVM capable (plus version) IPMI card.C.W. LEE, Apaq Digital Systems
[email protected]
07-15-2009, 01:43 PM #4Web Hosting Master
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I found this out the hard way myself. The one vendor I found who could guaruntee me 1.1A or later is Motherboardpro.com Just e-mail them to confirm that is what they have in stock. Any other vendors I talked to, it was a shot in the dark.
07-16-2009, 12:13 AM #5Web Hosting Master
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Wow! Could you imagine if you bought twenty of these only to find out you got the wrong revision? Good to know...
When/where did you order the X7DCL-i? The 1.1A revision came out over a year ago so I am surprised you would receive an older revision if you bought it recently.
I think you can use dual rank in the first two slots and fill the other four slots with single rank and it will work in the 1.1 revision. SM support recommended against it, but I'm pretty sure the manual states you can and I tried and it worked. We never put any systems into production like that though so I cannot comment on stability or any other issues. It may be worth a shot if you have some single rank on hand.█ Zac Cogswell
█ WiredTree Fully Managed VPS and Dedicated Hosting | Average Helpdesk Response <15 Minutes, 24x7 Instant Phone Support
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07-16-2009, 08:47 AM #7Rockin' the beer gut
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Last edited by Dougy; 07-16-2009 at 08:52 AM.simplywww: directadmin and cpanel hosting that will rock your socks
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APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
V. DALEY, Judge, presiding.
Rehearing denied May 18, 1978.
This appeal arises from an action brought by plaintiffs, Donald and Kathleen Sprague, to recover for severe and permanent injuries sustained by Sprague and allegedly occasioned by the negligent or wilful and wanton conduct of defendants, Commonwealth Edison Company (hereinafter "Edison") and Gust K. Newberg Construction Company (hereinafter "Newberg"). *fn1 Plaintiff's injuries resulted when a mobile crane, owned and operated by Newberg and for which plaintiff was acting as signalman, contacted an electric power line suspended over the Dresden nuclear power plant located near Joliet, Illinois, and operated by defendant Edison. Upon a jury trial, a general verdict was returned in favor of both defendants and against plaintiff.
Judgment was entered on the verdict and plaintiff currently appeals contending: (1) that the verdict was contrary to the manifest weight of the evidence; (2) that the trial court erred in permitting the jury to consider the issue of plaintiff's contributory negligence or contributory wilful and wanton conduct; (3) that certain evidentiary rulings of the trial court were improper and served to deny plaintiff a fair trial; and (4) that defendant Edison's argument to the jury was improper and prejudicial.
A review of the evidence reveals that on March 1, 1972, plaintiff was employed as a welder and pipefitter by F. Conry Mechanical Contractors and had been assigned as a work foreman on certain construction then underway at the Dresden power plant. Plaintiff had been employed on the site for approximately 4 years and was aware that power lines were suspended overhead which, if contacted by an electrical conductor, would transmit electric current through such conductor. In fact, double circuits of wire were suspended at heights of 21 feet, 26 feet, 6 inches, and 32 feet, and each wire carried 34,500 volts. Atmospheric conditions on the date in question were variously described as "foggy," "misty," "cloudy," and "damp." Under optimum conditions the actual height of these wires was difficult to estimate from ground level due to a lack of visual reference points. Accordingly, normal safety procedures to be employed when operating in the vicinity of such wires included allowing a clearance of 10 feet from the wires.
Plaintiff's assignment on the date in question had been to transport certain pieces of pipe a distance of approximately 125 feet within the confines of the job site and in the immediate vicinity of the power lines suspended overhead. Plaintiff was assisted in this operation by a fellow employee, Sam Bretto, and a Newberg employee, Al Barra, who operated a mobile crane or "cherry picker" which was required to move the pipe sections. On February 28, 1972, two days before the accident, plaintiff and Bretto had unloaded the pipe without incident from a truck by using the "cherry picker" which had been operated by a different Newberg employee, Byril Swanson. Plaintiff acted as signalman *fn2 for Swanson in order to direct the movements of the "cherry picker" and specifically warned Swanson of the power lines.
The mobile crane was equipped with a boom 10 feet in length which could be extended, retracted, raised and lowered by means of controls located in the cabin near the operator's seat. A cable with a hook on its end extended down from the tip of the crane boom and was also operated by a control in the cabin. In order to lift lengthy sections of pipe, the men employed "spreaders" (i.e., two equal length wire cables with a hook on one end and an eye on the other). The hooks on the other end of the cables were either attached to the ends of the pipe or, if the pipe was longer than the "spreaders," the "spreaders" would be wrapped or "choked" around the center of the pipe. The "cherry picker" was equipped with a windshield and a roof window which was covered by a wire mesh guard of unknown specifications. The "cherry picker" was capable of being driven forward under its own power and with the boom in an elevated or lowered position. When in the latter configuration, the boom tip would be 10-12 feet above the ground.
On the date of the accident, plaintiff again acted as signalman and directed Barra in moving the section of pipe as planned. During the maneuver the boom was positioned at a 45° angle. Thereafter, Barra centered the boom and began to lower it to a horizontal position. However, Barra stopped when plaintiff stepped in front of the crane, seized the "spreaders," looped them over his shoulders and motioned to Barra to move forward. Barra complied and the crane moved forward. Barra testified that he kept his eyes trained on Sprague; that he relied upon Sprague exclusively for directions; that he was unaware of the height of the boom at this time; and, that the boom tip was not visible to him due to the inclement weather conditions. Barra did not exit his cabin so as to estimate the height of the boom in relation to the overhead wires and, since Barra was unfamiliar with the area, placed complete reliance upon plaintiff to direct him. Barra indicated that he knew that plaintiff was an experienced workman who had previously worked on the particular job site.
The crane had proceeded forward but a short distance when the boom came into contact with the power line suspended 21 feet above ground level. An explosion followed and electric current was conducted through the crane assembly and into plaintiff's body, causing him severe injuries and necessitating the amputation of plaintiff's left arm.
Photographs taken at the scene shortly after the accident show the boom entangled in the overhead wires suspended approximately 26 feet above ground level. Plaintiff, who characterized himself as a "pretty good judge of distance," testified that he observed the crane boom immediately prior to walking forward and estimated that it was approximately 15 feet above the ground. Plaintiff also stated that in his estimation the lowest power line was approximately 25 feet above ground level; that there was "plenty of room" under the lines within which to maneuver the crane; that it was a customary practice for a workman to carry the "spreaders" if a short distance was to be traversed rather than attach them to the body of the crane; and, had the boom remained in the position at which plaintiff observed it the accident would not have occurred. The testimony of Sam Bretto corroborates plaintiff's estimate of the height of the boom and wires. The several Edison employees who testified at trial also overestimated the height of the power lines.
Plaintiff further testified that while he was walking he did not feel any "pull" on the "spreaders" as might be experienced if the boom had been raised during this time. At trial, Barra denied that he moved the boom after he received plaintiff's signal to proceed forward. It was established that the crane cable could be released while the boom was simultaneously being extended and elevated. However, this would require great dexterity on the part of the operator inasmuch as the maneuver would require moving three levers in different directions while steering the crane. Further, it appears that all the controls were powered by the same system in such a way that the boom would always rise faster than the cable could be paid out. If the boom was raised, the hook and "spreader" assembly would always be raised to some extent. According to operator Swanson, it would be "impossible" to alter the position of the boom either by elevation or extension without changing the position of the hook.
Plaintiff initially contends that the jury's verdict was unreasonable, arbitrary and unsupported by the evidence. In support of this position, plaintiff maintains: (1) that the evidence was sufficient to establish negligence or wilful and wanton conduct on the part of each defendant, which conduct proximately caused plaintiff's injuries; and (2) that, as a matter of law, plaintiff was free of either contributory negligence or wilful and wanton conduct so that the trial court erred in submitting these issues to the jury for its consideration. As we review the case, we can but conclude that it presented factual questions for the jury.
1, 2 Wilful and wanton conduct is difficult to define with precision. Whether an act constitutes such conduct is greatly dependent upon the particular facts of each case and it is within the peculiar province of the jury to consider. (Kelly v. Burtner (1941), 310 Ill. App. 251, 33 N.E.2d 754.) A charge of wilful and wanton conduct does not require proof that the party intended that harm should ensue. It is sufficient that the evidence tends to show that the party had notice which would alert a reasonable man that substantial danger was involved and that the party failed to take reasonable precautions under the circumstances. (Hatfield v. Noble (1963), 41 Ill. App.2d 112, 190 N.E.2d 391.) Moreover, one may be guilty of such conduct not only through an error in judgment but also from a failure to exercise judgment. (Dursch v. Fair (1965), 61 Ill. App.2d 273, 209 N.E.2d 509.) In order to establish wilful and wanton conduct the act or omission must not only be negligent but exhibit an utter indifference to or conscious disregard for a person's own safety or the safety of others. Turner v. Commonwealth Edison Co. (1976), 35 Ill. App.3d 331, 341 N.E.2d 488. See also Jarvis v. Herrin City Park Dist. (1972), 6 Ill. App.3d 516, 285 N.E.2d 564.
Plaintiff submits that the evidence was sufficient to establish that defendant Edison was guilty of such conduct in that Edison failed to insulate the wires in the vicinity of the job site, failed to inspect the job site, and failed to provide adequate warning with respect to the height of the various wires.
Whether the defendant power company was negligent for failing to insulate its wires at the location of the accident was a factual question requiring consideration of the particular conditions and circumstances, including whether it was reasonably foreseeable that persons might come into proximity of the wires. (Ploense v. Illinois Power Co. (1971), 2 Ill. App.3d 874, 275 N.E.2d 920.) Electricity is an inherently dangerous and deadly force which should be regarded with a high degree of care by those engaged in the business of supplying electrical energy. *fn3 Clinton v. Commonwealth Edison Co. (1976), 36 Ill. App.3d 1064, 344 N.E.2d 509.
3 The evidence in the instant case, together with all reasonable inferences, tends to show that defendant Edison had actual notice that a substantial danger existed. Evidence was also adduced to establish that an unrelated incident occurred at the site approximately 3 months prior to the date of the accident in question when a dump truck struck a wire adjacent to that involved in the instant case. The evidence also tends to establish that aside from this incident the area had been used under construction conditions for an extended period of time without incident. In any case, whether defendant Edison's failure to otherwise inspect the job site, insulate those wires in the immediate vicinity of the job site, or employ other specific warning devices evinces a conscious disregard for or utter indifference to the safety of others present questions properly within the domain of the jury as trier of fact. Spence v. Commonwealth Edison Co. (1975), 34 Ill. App.3d 1059, 340 N.E.2d 550; Burke v. Illinois Power Co. (1978), 57 Ill. App.3d 498, 373 N.E.2d 1354.
Defendant Newberg relies upon the proposition that a failure to see what is visible is not such conduct as is compatible with due caution for one's own safety, and, in the instant case, evidenced a conscious and utter disregard for plaintiff's own safety. (Hedge v. Midwest Contractors Equipment Co. (1964), 53 Ill. App.2d 365, 202 N.E.2d 869.) Indeed, in its brief before this court, defendant Newberg does not expressly dispute plaintiff's contention that Newberg employee, Al Barra, failed to exercise ordinary care with respect to the operation of the "cherry picker." It is well-settled that a party has no right to knowingly expose himself to danger and then recover damages for an injury which might have been avoided by the exercise of the requisite care. Withey v. Illinois Power Co. (1961), 32 Ill. App.2d 163, 177 N.E.2d 254.
4 The complaint in the instant case charged defendant Newberg with both negligence and wilful and wanton conduct. No special interrogatories were submitted to the jury with respect to these issues. A general verdict was returned in favor of both defendants and against plaintiff. The general and long accepted rule of law is that contributory negligence of the plaintiff is a defense for a defendant charged with negligence. The corollary of this rule, which is of more recent origin, is that contributory wilful and wanton conduct of the plaintiff is a defense for a defendant charged with wilful and wanton conduct. Only contributory wilful and wanton conduct is a complete defense to an action regarding the same. Zank v. Chicago, Rock Island & Pacific R.R. Co. (1959), 17 Ill.2d 473, 161 N.E.2d 848.
At the outset it must be noted that this operation undertaken at the Dresden work site on Edison property was extremely hazardous, involving heavy construction in the immediate vicinity of highly energized power lines suspended merely 21 feet above ground. Within this context, it cannot be said, as a matter of law, that defendant Newberg was free of negligence or wilful and wanton conduct with respect to the operation of the "cherry picker." By agreeing to maneuver his crane while the boom was in an elevated position and without attempting to personally discern the height of the boom in relation to the overhead power lines, Newberg's employee displayed an obvious lack of care for his own safety and that of others. The jury might have properly found that such carelessness constituted wilful and wanton conduct attributable to defendant Newberg.
Nor may plaintiff, as a matter of law, avoid all responsibility for the unfortunate height of the boom and the accident which occurred as a result. At trial, plaintiff acknowledged that he bore a duty to be on the alert for obviously hazardous conditions such as energized, low-slung, overhead power lines; that he was aware of this particular danger; and, that he did not warn the operator of the hazard.
The testimony of plaintiff and that of his co-worker, Sam Bretto, suggested that the boom was no more than 15 feet above ground level which, if true, would have provided sufficient clearance to avoid the power lines. Their estimates are not beyond question, however, in light of both employee's failure to accurately gauge the height of the power lines. While plaintiff contends that the boom was raised after he estimated its height, plaintiff admits that he felt no "pull" as might have been experienced had such an elevation taken place as he walked forward in advance of the "cherry picker" carrying the "spreader" assembly over his shoulders. Clearly, the boom should have been reduced to its lowest height and plaintiff's signal to the crane operator was instrumental in preventing this obvious safety measure from being implemented. The jury might properly have found that such close tolerances were grossly unreasonable and chargeable to plaintiff as signalman for the crane operator.
Moreover, it should also be noted that plaintiff elected to carry the "spreaders" over his shoulders under power lines which plaintiff assumed would cause electrocution if contacted by a metallic object. Plaintiff also chose this means of performing his task under circumstances where he admitted that the precise height of the wire was difficult to discern and the crane boom, on plaintiff's direction, was not lowered to its lowest level. Plaintiff testified that he was authorized to attach the "spreaders" to the "cherry picker" during a repositioning of the vehicle. While plaintiff testified that it was an ordinary practice to personally carry the "spreaders" under similar circumstances, operator Byril Swanson testified that in his considerable experience he had never observed a workman carry the "spreaders" for even a short distance. Other expert testimony indicated that it would be the duty of a workman "walking the spreaders" to take "special precaution."
Plaintiff evinced a lack of care for his own safety. In light of the obvious and tremendous risk of death or serious personal injury, plaintiff chose an extremely unsafe means of performing his work and may be deemed to have contributed to his injuries in this regard. See Shannon v. Addison Trail High School (1975), 33 Ill. App.3d 953, 339 N.E.2d 372.
5 The jury was in the best position to assess these competing considerations, evaluate the culpability, if any, of the parties' conduct, and determine the proximate cause of plaintiff's injuries. The jury's verdict is not contrary to the manifest weight of the evidence and shall remain undisturbed by this court. Spankroy v. Alesky (1977), 45 Ill. App.3d 432, 359 N.E.2d 1078.
Plaintiff next contends that certain evidentiary rulings by the trial court were improper and served to deny plaintiff a fair trial. Specifically, plaintiff asserts that such error occurred with respect to his attempted impeachment of Al Barra regarding the height of the boom at the moment the "cherry picker" commenced its journey toward the power lines.
There was considerable dispute at trial concerning the height of the boom at various times during its use prior to the accident. The record and the various analyses provided by the parties on this point are equally confused. It appears that on direct examination and during plaintiff's cross-examination of the witness, Barra estimated that the tip of the boom was approximately 20 feet above ground level at the time he was moving the pipe and at the moment that he centered the boom after putting the pipe down. In a deposition given prior to trial, Barra indicated that he believed "the boom might have been somewhere in the neighborhood of 15 feet" above the ground at the point in time in which he started to lower the boom. Barra also indicated that he "thought that would be the maximum" but that he "was not certain." While it is unclear from the record, these two estimates appear to have concerned two different time periods and, hence, the trial court was correct in ruling that the attempted impeachment was improper.
6 In any case, review of the record establishes that plaintiff's counsel subsequently questioned Barra as to the height of the boom at the moment Barra received plaintiff's signal to move forward in the direction of the power lines. Barra repeatedly stated that he could not see the tip of the boom but admitted that the height of the boom "could have been approximately 15 feet" above the ground at this most relevant time. Plaintiff's counsel seized upon this admission and argued the obvious inferences to the jury during closing argument. Any error which might have conceivably resulted to plaintiff from the trial court's ruling must be deemed harmless.
Plaintiff also argues that defendant Newberg's attorney was allowed to disparage the credibility of plaintiff's witness Sam Bretto by improperly attempting to impeach Bretto on a material issue (i.e., visibility on the job site) and subsequently failing to offer proof of any prior inconsistent statement.
7 Plaintiff failed to make a timely objection to this procedure and must be deemed to have failed to preserve this issue for appellate review. Indeed, plaintiff did not choose to raise the point prior to an amendment to his post-trial motion filed eleven months after the jury returned its verdict. In any case, the prejudice which plaintiff currently asserts as mandating reversal of the jury's verdict is not self-evident. The colloquy about which plaintiff complains appears as follows:
"Q. I believe you said that the weather was damp and slightly drizzling and there was some fog in the distance. Wasn't the fog right there, where you were working?
A. No, sir.
Q. Do you remember, on November 2, 1972, a man came to your house in Coal City or late in the afternoon or early evening, and asked you a lot of question about this, and prepared a long-hand report?
A. No, I don't.
Q. Offered it to you to sign? You don't remember that?
A. I don't remember that, sir.
Q. Do you remember that it happened at all, regardless of whether you remember that it was November 2nd? Do you remember that ever happening?
A. No, I don't. No, I don't.
Q. You, of course, can write and sign your name, can't you?
A. Yes, sir.
Mr. Guy: Would you mark this as Defendants' Exhibit 4, for identification, please.
(Document marked as requested.)
Mr. Guy: Q. Let me show you seven pages of writing, at the bottom of each there is a name. Would you look at the bottom of each page and tell me whether that is your signature seven different times?
A. Yes, it is.
Q. So you did sign this document, then?
Q. This is the original, I mean, this is not a copy, this isn't a copy, is it?
A. No.
Q. Does the fact that you signed this refresh your recollection as to whether the document was prepared?
A. No, it doesn't.
Q. It doesn't? You still don't remember?
A. I don't remember, no, sir.
Q. Do you remember saying that the weather was damp, cloudy and foggy and not windy?
A. You mean at that particular time?
Q. Hm-Hm.
A. No, sir, I don't.
Q. You don't?
A. I don't remember anything on it.
Q. But that is your signature?
A. Yes, sir."
The witness' description of the weather in the statement ("damp, cloudy, and foggy, not windy") was essentially the same as his trial testimony on direct examination:
"Q. [Mr. Rafferty] By the way, what kind of weather was it that day, Mr. Bretto?
A. Damp, very light drizzle and a little fog in the distance."
The statement was later admitted into evidence, without objection, for the limited purpose of establishing that Bretto signed it seven times. Plaintiff's suggestion that an "inconsistency" developed when defendant's counsel asked Bretto whether the fog was not "right there where you were working" is not well-taken. At best, this question was simply an attempt to obtain a factual admission. There was no reference to any statement of the witness on this point and defense counsel never intimated that the witness made a contrary statement at a prior time.
8 Plaintiff finally contends that the closing argument of defendant Edison was improper and prejudicial. Again, plaintiff failed to make a timely objection to the comments in question and has failed to perfect the issue for appellate review. In any case, plaintiff suffered no prejudice by these comments:
"He has got to prove that he was free of contributory negligence or wilful and wanton misconduct, that the defendant was negligent or committed wilful and wanton conduct, that the negligence or wilful and wanton conduct of the defendant proximately caused the accident, and that the plaintiff was injured, but he has got to prove all four, not just one or two or three. Because of his contributory fault, under those instructions, was just part of what caused this accident, then under the law, the defendants are entitled to a verdict.
Now, that is a hard one to swallow and not all people like that, but I just want you to think of one little problem when you are in the Jury room. I don't suppose that anyone likes Watergate or likes what the C.I.A. is doing to us. We are not there in the jury room, but if you don't follow the law, you are doing the same thing to our system of justice that Mr. Nixon did and the C.I.A."
Taken in its appropriate context, counsel merely used these current events in order to illustrate and impress upon the jury their sworn duty to follow the law.
Accordingly, for the aforementioned reasons the judgment of the circuit court of Cook County is affirmed.
DOWNING and PERLIN, JJ., concur.
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Improve Shady Sands' Agriculture
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You only plant some of your fields, allowing the others to get back some of the nutrients that the plants used up. You let the other fields become fertile again by just tilling up whatever grows there."— Vault Dweller
Improve Shady Sands' Agriculture is an unmarked quest in Fallout.
Quick walkthroughEdit
|Side Quest: Improve Shady Sands' Agriculture
|Speak to Curtis.
|Tell Curtis about crop rotation.
|Reward: 500 XP, +2 Reputation
Detailed walkthroughEdit
Talk to Curtis, a farmer in the garden on the eastern edge of Shady Sands, and ask what he does.
If the Vault Dweller's Science skill is greater than or equal to 40%, they can inform Curtis through dialogue options, that crop rotation is a better alternative to his current farming style. Curtis will then accept this idea as a sensible way to improve his agricultural method, and the Vault Dweller will receive 500 XP. If the Vault Dweller uses the Tell me about option, the Vault Dweller can bypass the skill check by asking about crop rotation (typing anything appears to work; however there is no reputation bonus for completing the quest this way).
However, if the Vault Dweller's Science skill is less than 40%, the special dialogue option will not appear. If he does not meet the skill requirement the first time, he cannot complete this quest, as he gets only one opportunity to ask Curtis about farming.


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Please contact us with any questions or comments you may have. We look forward to seeing you at MBC soon!
Love like Jesus, to lead them to Jesus!
Monday, December 5
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International Mission Board Missionaries,
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Newcomers' Dessert with Pastor Scott.
Thursday, December 15
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Gold futures regain Rs 30,000-level on positive global cues
At the Multi Commodity Exchange, gold for delivery in far-month June spurted Rs 258, or 0.87 per cent, to Rs 30,008 per 10 grams, in a business turnover of 40 lots.
Similarly, the yellow metal for delivery in April traded higher by Rs 277, or 0.94 per cent, to Rs 29,790 per 10 grams in 888 lots.
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Globally, gold rose 0.7 per cent to USD 1,247.78 an ounce in Singapore.
The precious metal had climbed 11 per cent in February, the biggest monthly increase since January 2012.


text:
Tag Archives: celica
EVENTS: Vintage Auto Salon, Part 03 – Bayline Cruisers
For the third and final installment of our Vintage Auto Salon coverage, we take a look at cars that aren't necessarily the rarest or the sportiest. Instead, this motley crew is comprised of bone stock survivors, tough trucks, and wicked … Continue reading
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EVENTS: Vintage Auto Salon, Part 01 – JDM Machines
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VIDEO: Wheeler Dealers goes to Japan
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VIDEO: Brian Karasawa's 1977 Toyota Celica Fastback by Electric Federal
In a new video called "Japan's Forgotten Fastback," Electric Federal gets up close and personal with our friend Brian Karasawa's and his gorgeous 1977 Toyota Celica Liftback. Of course, JNCers and anyone who's been to Toyotafest or JCCS knows that the RA29, and … Continue reading
KIDNEY, ANYONE? 24,000-mile 1977 Toyota Celica GT
Almost two years ago to the day we reported on a 24,000-mile 1977 Celica GT Liftback for sale in Berthoud, Colorado. Asking price? $19,000. Some balked at the sum, despite the fact that the car was showroom fresh with an undercarriage you … Continue reading
NEWS: RA64 Toyota Celica spotted on the set of Scorcese-produced 80s gang epic Revenge of the Green Dragons
Time to dig out your Zodiac shoes, Guess jeans and bolo tie, because Martin Scorcese is producing yet another period film about the ethnic gangs of New York City. This time, the period is the 1980s and the setting is … Continue reading
EVENTS: Shokuji J-Tin, Part 03 – The Next Level
For our final installment of Shokuji J-Tin coverage, we turn to some of the best builds, survivors and restorations from the Bay Area. There will be no rattle-canned hoods or stanced out cries for attention here — just pure, undiluted … Continue reading
EVENTS: Shokuji J-Tin, Part 01 – Wangan Style
Last year a fantastic new show called the Bayline Gathering emerged on the NorCal scene. It brought out some of the best cars the region had to offer and filled a void that desperately needed filling. Last month, the organizers were … Continue reading
EVENTS: 2013 All-Toyotafest, Part 04 — The Angular Eighties
Though just the size of California, by the 1980s Japan had become the world's premier industrial giant. With unprecedented growth and technology advancements, Nihon's cars of this Bubble Economy, especially Toyotas, established a unique design philosophy that was on full … Continue reading
MINICARS: Hot Wheels 1970 Toyota Celica, now in yellow
We take a break from all the Toyotafest coverage to bring you… more Toyota news. Earlier this year Toyotakus had their wildest dreams fulfilled when the 1970 Toyota Celica finally appeared, after years of begging, in the Hot Wheels line. Here's … Continue reading
EVENTS: 2013 All-Toyotafest, Part 03 — Late 70s Luxe
The Oil Shock of 1973 killed off Japan's racing programs, and by the later half of that decade emissions regulations were sapping the performance out of factory offerings. With their dreams of buying a Suzuka-ready sports coupe dashed, consumers turned … Continue reading
EVENTS: 2013 All-Toyotafest, Part 02 — The Seventies
As we mentioned, there was more urethane than chrome at this year's Toyotafest. Still, it's the strong presence of Aichi classics that anchor this must-see event and separate it from other shows.
EVENTS: 2013 All-Toyotafest, Part 01 — The Very Old & Very New
The year is 2013, and that means the official JNC 25-year-or-older rule puts the nostalgic cutoff squarely in 1988. Yes, it's hard to believe that MkIII Supras are elegible for historic tags in most states now but it's true. The … Continue reading
PRODUCT GUIDE: Koyorad First-Gen Toyota Celica Radiator
If you swung by the JNC booth at Toyotafest this weekend you might have noticed this beautiful block of aluminum. It's the the lastest design from Japanese radiator maker Koyorad and we're happy to say that it's another nostalgic car application. Hot … Continue reading
EVENTS: Formula D Round One / AE86 Nights, Part 02
In Part 01 of our coverage from last weekend's SoCal car scene we watched the opening round of the 2013 Formula D season. After the smoke settled in Long Beach everyone booked it across the southland to El Monte for some grassroots … Continue reading
VIDEO: JNCs make the cut in Ron Howard's Rush
The hottest video circulating automotive sites today is the trailer for Rush. Last year we reported that some classic Nihon cars were spotted on set, specifically, two daruma Celicas and a kujira Crown Hardtop. Moreover, the screen shot above, which … Continue reading
GRAND TOURING: Kanto
Since the opening of the Yamate Tunnel, provided traffic is light of course, traversing Tokyo to join the out-going expressways has become a lot easier. In ten or fifteen minutes, you can join the Joban for a quick run out … Continue reading
EVENTS: 2013 Nostalgic2Days, Part 02
Welcome back to JNC's Nostalgic2Days coverage, from the Pacifico Yokohama convention center. The building itself might be located in the city's Minato Mirai 21, or "Future Port of the 21st Century" district, but the cars are all from back in … Continue reading


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Just a moment
About Dharmapuri
Dharmapuri is the small town in Tamil Nadu. It is widely famous for Hogenakkal water falls to visit people come from different locations. This waterfall is considered to be Grand Canyon of India because of its unique landscape. Moreover, the town is famous for mango farming and is the only town which has the best quality marble stone reserve in the world. Presently, Dharmapuri is now turning out to be the industrial area and occupation like Horticulture, Fisheries are gaining popularity. Apart from being the industrial town, Dharmapuri also has some interesting locations to visit. Places like Theerthamalai, Kottai Kovil and few other places are worth visiting. Visitors can also visit religious places like: Sacred Heart Cathedral, Mount Carmel Church, Jumma Mosque and few others. Some of the interesting locations in Dharmapuri are: Subramanya Siva Memorial, Theerthamalai Temple and Hogenakkal Falls.
About Pathanamthitta
Pathanamthitta is a small town located in Travancore district of Kerala. This town is famous for the Hindu pilgrimage called Sabarimala is situated here. Due to this reason, the town is called as 'Pilgrim Capital of Kerala'. Moreover, it is also being named as the cultural zone because of being the holy region. Aranmula annual boat race which attracts huge number of people takes place here. The town is known for its culture. Padayani one of the major folk is celebrated here. Other interesting thing about this place is the rich flora and fauna. Fifty percent of town is covered with forest making the region warmer. Maramon Convention is known for the only place in Asia to hold Christian's gathering. Some of the tourist locations in Pathanmthitta are: Aranmula Parthasarathy Temple, Bhagavathy Temple, Kaviyoor Mahadeva Temple, Perunthenaruvi Waterfall and other few places.


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A Good Deal: No Evil 022
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Park Bench
A short film about a park bench4.13 / 5.00 1,232 Views
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This was awesome! I can really see the saint seiya influence in this. This was great!!!! I know this is like 2 years since the last commentXD. But its awesome! :DDDD The ammounts of nostalgia i got from the song was too damn high! and the cartoon was amazing! im currently making a stupid goofy terribly made short cartoon from saint seiya... but that was amazing!
This is really well done, but out of curiosity, is the shadow armor (Helmet at least) based off of Zero's design? The helmets look very similar to one another.
holy shit...Rigo...
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Saint Seiya indeed
I loved Saint Seiya, and I definitely liked this. I hope to see more of this series soon.
Damm nice indeed bro.
Intristing story and amazing visuals plus voice acting is allways nice. Good stuff you ever need a voice actor Holla atcha boi.


text:
The Inn at the Spanish Steps, Rome
- Free breakfast and free WiFi
Main amenities
- 24 guestrooms
- Rooftop terrace
- Bar/lounge
- 24-hour business center
- Airport drop-off service
- Childcare
- 24-hour front desk
- Air conditioning
- Daily housekeeping
- Car rentals on site
- Laundry service
- Multilingual staff
What's around
- In Rome Historic Centre
- Spanish Steps
- Trevi Fountain
- Pantheon
- Roman Forum
- St. Peter's Basilica
The Inn at the Spanish Steps, Rome
Hotel Info: 866-539-8117from $231
- Classic Double Room Single Use
- Classic Double Room
- Superior Triple Room
- Suite, View (Piazza di Spagna)
- Superior double RO
- Classic double non refundable
- Studio, Annex Building (Via dei Due Macelli, 102)
- Superior Double Room Single Use
- Executive Double Room
- Superior Double Room
- Classic double RO
- Deluxe Double Room
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At a glance
Key facts
Hotel size
- This hotel has 24 rooms
- This hotel is arranged over 5 floors
- 24-hour check-in
- Check-out time is 11:30 AM
- Express check-in/out
Required at check in
- Credit card deposit required
- Government-issued photo ID required
- Minimum check-in age is 18
Travelling with others
- Children (3 years old and younger) stay free when occupying the parent or guardian's room, using existing bedding
- Babysitting/childcare *
- Pets stay free
- 1 per room
- Free WiFi and wired Internet access in public areas
- Free WiFi and wired Internet access in rooms
- Airport drop off *
- No parking
- Area shuttle *
Nearby One Star Rome hotels
In the hotel
- Free breakfast
- Bar/lounge
- Room service (during limited hours)
- 24-hour business center
- 24-hour front desk
- Concierge services
- Tours/ticket assistance
- Limo or Town Car service available
- Dry cleaning/laundry service
- Laundry facilities
- Free newspapers in lobby
- Luggage storage
- Multilingual staff
- Number of buildings/towers - 2
- Year Built 1700
- Elevator/lift
- Rooftop terrace
In the room
- In-room climate control (air conditioning)
- Air conditioning
- Minibar
- Coffee/tea maker
- Soundproofed rooms
- Turndown service
- Premium bedding
- Bidet
- Free toiletries
- Hair dryer
- Flat-screen TV
- Satellite TV channels
- Desk
- Free WiFi
- Phone
- Free bottled water
- Daily housekeeping
- In-room safe
Top Rome hotels
Recently reviewed hotels in Rome
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"Very warm hospitality, service was very nice and cordial. Our quite spacious room was set up well, with outlets in convenient locations, and even an outlet for American plugs.…"Dec 3, 2016
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"Location was great, close to everything. The room was very small and even though they advertise their beds to be king size they are not even a double, super tiny bed and horrible…"Dec 2, 2016
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Awards and affiliations
- The property is a member of the Small Luxury Hotels of the World.
The Inn at the Spanish Steps, Rome's small print
Also known as
- Inn Spanish Steps
- Spanish Steps Inn
- Inn At The Spanish Steps Hotel Rome
- Inn At Spanish Steps
Guests who book a Standard, Superior, or Deluxe room might be given a room in the Annex Building located at Via dei Condotti 48. For more details, please contact the office using the information on the reservation confirmation received after booking.
All guests, including children, must be present at check-in and show their government-issued photo ID card or passport.
Cash transactions at this property cannot exceed EUR 2999.99, due to national regulations. For further details, please contact the property using information in the booking confirmation.
Accommodations are situated at multiple addresses.
This property's policy is to refuse certain bookings for the purpose of group events or parties, including pre-wedding stag/bachelor and hen/bachelorette parties.
The name on the credit card used at check-in to pay for incidentals must be the primary name on the guestroom reservation.
Mandatory fees
You'll be asked to pay the following charges at check in or check out:
- A tax is imposed by the city: EUR 3 per person, per night, up to 10 nights. This tax does not apply to children under 10 years of age.
Optional extras
Rollaway beds are available for EUR 132 per night
Babysitting/childcare is available for an extra charge
Airport shuttle service is offered for an extra charge of EUR 60 per vehicle
Area shuttle service is offered for an extra charge
We have included all charges provided to us by this hotel. However, charges can vary, for example, based on length of stay or the room you book.
Recent reviews
Excellent 4.5 /5 from 139 reviews
Love the location and staff there.
Great staff and excellent location!!
Great boteque hotel less than a block from the Spanish Steps. Nice breakfast & room. The only negative is all the steps within the hotel. For example, our room was on the 2nd floor & the elevator stops at floor 2 1/2. This was true of all floors. There is a lovely breakfast room/terrace on the roof , but it's 2 flights of stairs to reach it. The Inn has very helpful staff.
The Inn is an oasis in the city of Rome. Steps away from the Spanish Steps and in the midst of the chic shopping district, the Inn was our final stop on a two week whirlwind trip and we really needed the comfort that the Inn provided. The staff and their professionalism and friendliness was welcoming and I think contributed a lot to the comfort and overall experience of our stay.
We were upgraded to one of the best suites in the place so were very lucky.
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OYO Rooms Near Mall Road 2
Kempty Stand,Library Chowk, 248179 Mussoorie, India – Show map
|Room type
|Standard Room
6 reasons to choose OYO Rooms Near Mall Road 2
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93 properties in Mussoorie
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Facilities of OYO Rooms Near Mall Road 2
Pets are not allowed.
Free! WiFi is available in all areas and is free of charge.
Free! Free private parking is possible on site (reservation is needed).
Languages spoken
- Hindi
- English
Property surroundings – Show map
Closest landmarks
- Camel's Back Road 0.8 miles
- Mussoorie Mall Road 0.8 miles
- Kempty Falls 2.3 miles
- Dehradun Clock Tower 9.5 miles
- Dehradun Station 10.3 miles
Most popular landmarks
- Indian Military Academy 11.1 miles
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Cancellation and prepayment policies vary according to room type. Please enter the dates of your stay and check the conditions of your required room.
Children and extra beds
All children are welcome.
One child under 6 years stays free of charge when using existing beds.
All children under 6 years stay free of charge for extra beds.
The maximum number of extra beds in a room is 1.
Any type of extra bed or child's cot/crib is upon request and needs to be confirmed by management.
Pets are not allowed.
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Can a Limited Liability Partnership-LLP file the income tax returns as per section 44AD?
Rahul Rai2014-04-03
Can a LLP file its Income Tax returns using form ITR 4S by availing the benefits of section 44(ad)?
Rakesh Bharadwaj2014-04-03
No. Sec 44AD is not applicable to LLPs, hence cannot use ITR 4S. U should use ITR 5 or ITR 3
CA Pulkit Sharma2014-04-03
Section 44(ad) provides special provisions for computing business profit on presumptive basis from the assessment year 2011-12.
Conditions - The provisions of section 44AD are applicable only if the following conditions are satisfied-
- Eligible Assessee - The assessee should be and eligible assessee. Eligible assessee for this purpose is person resident in India who is individual, a Hindu Undivided family or a partnership fir, (not being a limited liability partnership-LLP)
The first condition itself disragard the LLP from benefits. LLP can not file returns by taking benefits of section 44(AD).
Mukesh Jain CA2014-04-03
Sec 44AD is not applicable to LLP.


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April 30, 2009
PAMELA WALL,*FN1 INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED, PLAINTIFF,v.MICHAEL O. LEAVITT, DEFENDANT.
Introduction and Summary
Too little, too late, too often. Although it may sound harsh, the foregoing is an accurate, factual description of plaintiff's overall efforts in this case. Once again, counsel has failed to timely oppose summary judgment, and for essential purposes, oppose it at all. For the reasons set forth herein, the Secretary's motion for summary judgment on the issues which remain in this case should be granted.
This case brought as a potential class action, involving the reimbursement of Medicare from payments made by "primary payers" under the Medicare Secondary Payment Act (MSP), has been referred to the undersigned pursuant to E. D. Local Rule 72-302(a). The entire procedural history of the case will not be reiterated here as it was set forth in the first motion for summary judgment. As the record shows, that motion was directed to the major part of plaintiff's case -- alleged unconstitutional pre-hearing taking of Medicare beneficiaries settlement or other payments from non-Medicare sources. The undersigned found that: "Medicare MSP law and regulations set up a situation which inevitably will result in many situations of Medicare's retention of undisputed, and/or ultimately determined, non-MSP monies. Although such raises a specter of unlawful governmental detention of property, for the reasons stated herein, Medicare's Secondary Payment law, policies, and procedures withstand facial due process attack in plaintiff's Wall's case, and generally."
Accordingly, IT IS RECOMMENDED that defendant's motion for partial summary judgment motion, filed August 1, 2008, (docket # 166), be granted as to the Third Cause of Action, and the First Cause of Action insofar as it alleges the non-existence of informal procedures for challenging and rectifying a tentative requirement to repay Medicare for conditional payments made prior to payment by a primary payer.
Findings and Recommendations filed October 29, 2008.
Just after the district court adopted the Findings and Recommendations on January 9, 2009, the undersigned scheduled the remainder of the motion practice in this case:
.... Provided that the findings and recommendations are adopted, the claims remaining are: the remainder of the first cause of action, that is, a violation of regulations and policies in the processing of plaintiff's claim; and the second, fourth, fifth and sixth causes of action, all of which concern post-deprivation issues which are not appropriate for class consideration. More specifically, the second cause of action concerns "violation of requirements for reconsideration requests." The Fourth Cause of Action contends a "violation of requirement to send waiver forms and information upon written request." The Fifth Cause of Action alleges "violation of requirement to provide correct appeal information." Finally, the Sixth Cause of Action indicts the Secretary for "fraudulent back dating of initial determinations," thus shortening the beneficiary's appeal period.
As this court explained in its findings and recommendations, because plaintiff does not seek monetary damages, in responding to a further summary judgment on remaining claims, plaintiff must address why the aforementioned remaining causes of action are not moot, whether plaintiff finally exhausted her own claims, and if there is a policy of action or inaction needing to be corrected such that maintenance of a class action is appropriate. As previously clarified, "issues of fact on a policy cannot be shown by a potpourri of attorney declarations which merely conclude that such a policy, de jure or de facto exists because of their 'past experience,' nor can they be demonstrated by unexplained incidents in which delay or some other problem was encountered." (Docket #202, at 30.) Therefore, the case will proceed with summary judgment on the remaining claims, with defendant as the moving party.
Although plaintiff seeks a ruling on her discovery motion and requests further discovery on post-deprivation policies, the court finds at present that further discovery is not warranted. Plaintiff may explain why further discovery is necessary to the remaining claims, however, in her opposition to defendant's summary judgment motion by way of a Rule 56(f) request. Accordingly, IT IS ORDERED that:
1. Defendant shall file his motion for summary judgment within thirty days of this order.
2. Plaintiff shall file an opposition and/or cross-motion within thirty days of being served with defendant's motion. The opposition may explain why further discovery is needed under Fed. R. Civ. P. 56(f).
3. Defendant may file a reply within fifteen days of receiving plaintiff's opposition and/or cross-motion.
Order filed January 12, 2009 (emphasis added)
On January 28, 2009, a stipulation and order was filed permitting the motion for summary judgment to be filed on February 24, 2009, and "all other briefing deadlines...remain unchanged." The Motion was timely filed expressly setting out the hearing date of April 23, 2009. Under the order, opposition was due March 30, 2009.*fn2 No opposition was filed on that day, and such was noted by the Secretary and served on plaintiff's counsel on April 8, 2009.
It was not until April 10, 2009, 11 days late, that the "opposition" was filed. The word "opposition" appears with quotes in that the page-and-a-half filing was neither a discussion of the merits, nor a sufficient Fed. R. Civ. P. 56(f) request for further discovery pending the motion. Counsel understood that the opposition was late as she attempted to explain (despite the express wording of the above order) that she thought the thirty-day-after-opposition deadline applied only in the event a cross-motion was filed. Moreover, the request for discovery prior to adjudication of the motion contained only the following:
Plaintiff is requires [sic] discovery before being able to respond to defendants' motion. Plaintiff has filed a motion to compel and this court has deferred responding to it. Plaintiff remains without evidence to respond and requests the court rule on her motion to compel so she has documents and evidence to respond to the motion for summary judgment.
Thereafter, on April 14, 2009, in a reply brief the Secretary laid out the entire history of defaults in this action by plaintiff's counsel. The chronology is accurate and adopted by the undersigned. It is also worth noting, for the facts that follow, that plaintiff's counsel was thrice advised about the date of hearing for the summary judgment motion: April 23, 2009. See cover sheet for the Motion filed on February 24, the Supplemental Brief filed on April 8, and the Reply filed on April 14. Plaintiff's counsel did not appear on April 23, 2009. Later that day, after the minutes of the hearing were posted noting counsel's absence, plaintiff's counsel advised via declaration that she had mis-calendared the hearing for April 24, 2009.
B. Discussion
A district court may not grant a motion for summary judgment simply because the nonmoving party does not file opposing material, even if the failure to oppose violates a local rule. Martinez v. Stanford, 323 F.3d 1178, 1181 (9th Cir. 2003); Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994), citing Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993). However, when the local rule does not require, but merely permits the court to grant a motion for summary judgment, the district court has discretion to determine whether noncompliance should be deemed consent to the motion. Id. Given the prima facie validity of the Secretary's motion, and the lack of any record evidence or issue to require further review presented by plaintiff, the undersigned recommends that the Secretary's motion be granted, and award judgment in the Secretary's favor.*fn3
The above facts detail plaintiff's counsel's failures in respect to opposing this second motion for summary judgment. If this were the first default of procedural obligations, the undersigned could see his way to overlooking the problem. However, it is not the first time, not the second, not the third.... The Secretary's Reply brief detailing plaintiff's deficiencies includes reference to the facts that: the complaint was not served for nine months; denial of plaintiff's request for schedule extensions; unprepared for initial class certification hearing, including an order denying request to vacate the class certification motion, striking of late filed documents for initial class certification hearing; improperly noticed motions; continuous requests to extend set discovery deadlines; continuous requests to extend deadlines for filing first summary judgment motion; when a filing was finally made -- incomplete filing with respect to first summary judgment motion; finally, vacating plaintiff's motion for summary judgment because of violation of court orders; striking of further papers filed contrary to court order. These observations are accurate.
There is simply no way to overlook these deficiencies. If Brydges is controlling authority, see footnote 3, the undersigned recommends that discretion be exercised to grant the Secretary's motion as unopposed.
In the alternative, the court has reviewed the Secretary's motion. All that can be reviewed are the Secretary's papers because plaintiff has not filed any substantive opposition. Plaintiff's one paragraph Fed. R. Civ. 56(f) request is totally insufficient. In making such a request, one must do so "with specified reasons" why the party "cannot present facts essential to justify its opposition." No specific facts have been made whatsoever relating the facts to the actual legal issues raised. The issues here required no further discovery as plaintiff would have the information regarding her case at her disposal to respond, or the issues were purely legal in nature: (1) no actionable violation of regulations in processing plaintiff's case; (2) the Secretary's post-deprivation due process procedures are facially valid as a matter of law; (3) plaintiff failed to exhaust administrative remedies; (4) plaintiff's remaining post-deprivation issues are moot (as she is seeking no damages for alleged post-deprivation violations of law, and there are no injunctive measures which could apply to plaintiff's case); (5) plaintiff lacks standing to pursue her remaining claims. The cryptic, generalized request for discovery in order to respond to the Secretary's motion is transparent in its non-relevance to the issues raised, and nothing but a desperate stab to obtain an undeserved continuance.
The undersigned will not exhaustively analyze the Secretary's unopposed papers, but has reviewed them for prima facie validity.
1. Remainder of the First [Claim] Cause of Action
Plaintiff's first cause of action is that defendant violated the requirements for initial determinations by failing to require UGS to provide timely, written and accurate initial determinations on MSP claims in California, thus violating the Medicare statute and regulations and procedural due process. Compl. ¶¶ 55, 56. This court previously granted summary judgment on part of this first cause of action in its findings and recommendations on the general concerns associated with deprivation of property prior to formal due process. Plaintiff's remaining allegations centered on alleged violations of procedures in her case associated with issuance of an initial determination: because plaintiff is not seeking monetary recompense for any alleged violation, plaintiff will be tasked with showing why the remainder of the First Cause of Action:
(1) is not moot;
(2) whether plaintiff finally exhausted her own particular complaints in this regard;
(3) a policy of action or inaction that may need to be corrected such that maintenance of a class action is appropriate; issues of fact on a policy cannot be shown by a potpourri of attorney declarations which merely conclude that such a policy, de jure or de facto exists because of their "past experience," nor can it be demonstrated by unexplained incidents in which delay or some other problem was encountered.
Findings and Recommendations, filed October 29, 2008.
The Secretary now moves for summary judgment on the remainder of the first cause of action, addressing the issue of any post-deprivation violation of regulations and policies. First, the Secretary argues that there is no policy of action or inaction in existence which must be addressed through a class claim. Although plaintiff claims that the Secretary does not require, and UGS does not follow regulations to ensure due process in regard to timely written and accurate initial determinations, plaintiff has not identified any unconstitutional policy.
The Secretary also asserts that there is no jurisdiction as plaintiff has not exhausted her administrative remedies on her individualized claims. This court's July 11, 2007 order addressed exhaustion and found that exhaustion would be futile as the case involved policies and practices, and recommended denying the motion to dismiss on this basis. (docket #50). However, as noted by the Secretary, the court found an excuse for non-exhaustion focused on the constitutional claims raised by an asserted lack of pre-deprivation due process in general. Once those issues were decided, the apparent lack of exhaustion for an alleged lack of compliance with established procedures in plaintiff's case affected the jurisdiction of this court to proceed.
The Secretary additionally asserts that plaintiff's initial determination was timely issued because plaintiff delayed in informing Medicare about her settlement. Once informed, Medicare made an initial determination within fourteen days.
All of the Secretary's contentions are prima facie valid for the reasons set forth in the motion. In the absence of an opposition, summary judgment should be granted.
2. Remaining Claims (2nd, 4th, 5th, 6th causes of action)
The previous findings and recommendations set forth:
Defendant [the Secretary] contends that these claims concern post-deprivation issues that the court already found were not appropriate for class consideration. See Order, filed March 18, 2008. The undersigned did not go so far as to make a definitive ruling.
The Second Cause of Action concerns "violation of requirements for reconsideration requests." The Fourth Cause of Action contends a "violation of requirement to send waiver forms and information upon written request." The Fifth Cause of Action alleges "violation of requirement to provide correct appeal information." Finally, the Sixth Cause of Action indicts the Secretary for "fraudulent back dating of initial determinations," thus shortening the beneficiary's appeal period.
Plaintiff cannot legitimately contend that adequate administrative procedures to resolve post-deprivation issues do not facially exist. Therefore, in further proceedings, because plaintiff is not seeking monetary recompense for any alleged violation, plaintiff will be tasked with showing why the above identified causes of action:
(1) are not moot;
(2) whether plaintiff finally exhausted her own particular complaints;
(3) a policy of action or inaction that may need to be corrected such that maintenance of a class action is appropriate; issues of fact on a policy cannot be shown by a potpourri of attorney declarations which merely conclude that such a policy, de jure or de facto exists because of their "past experience," nor can they be demonstrated by unexplained incidents in which delay or some other problem was encountered.
Findings and Recommendations, October 29, 2008.
In the instant motion, the Secretary now contends that its post-deprivation procedures are constitutionally adequate as a matter of law. Despite the fact that plaintiff has failed to provide any evidence that post-deprivation procedures are inadequate or that her due process rights were violated, the Secretary points to statutes and regulations providing for a right to challenge the determination, to seek reconsideration of the decision, to seek further review of the determination, to appeal that challenge, to have a hearing on that challenge, and to seek ultimate judicial review of any outcome. 42 U.S.C. § 1395ff(b)(1); 42 C.F.R. §§ 405.900, 405.1000. The Secretary points out that plaintiff objects to the implementation of these procedures; she does not raise constitutional challenges to the procedures themselves.
The Secretary further contends that the remaining causes of action are not exhausted, are moot, and that plaintiff has no standing to pursue them. In regard to exhaustion, the Secretary again posits that the court's prior finding that exhaustion was waived does not apply to these claims, but only applied to the previous constitutional challenges raised by plaintiff. The Secretary has cited the transcript from the hearing on the motion to dismiss re exhaustion where the undersigned stated that the previously decided claims regarding pre-deprivation due process were exempt from exhaustion but that the rest of the claims seemed to be "clearly within a claims process," and that exhaustion most likely applied to them. The Secretary is correct.
In regard to mootness, the Secretary asserts that these four remaining claims have been resolved. Plaintiff received an initial determination, her requests for reconsideration were successful, and therefore these claims are moot. The Secretary discusses each complaint plaintiff had and explains why it is no longer at issue. Plaintiff is not seeking any monetary damages despite her sometimes argument that a de minimus sum is still owed. The Secretary argues that plaintiff has no standing for the same reasons that the claims are moot.
It is apparent from the Secretary's argument that no injunctive relief is warranted for these claims in that the published procedures are surely sufficient from a constitutional standpoint, and in any event, whatever problems plaintiff encountered have been resolved. No injunction could issue for the purposes of admonishing the Secretary not to allow these past idiosyncratic problems to happen again -- even assuming the truth of the problems. These were one time problems with a past processing of a claim by Medicare. Again, plaintiff seeks no monetary relief.
For the above reasons, and those set forth in the Secretary's motion, summary judgment should be granted.
The Secretary's Motion for Summary Judgment on the claims remaining in this action, part of the First Cause of Action, and the Second, Fourth, Fifth and Sixth Causes of Action, (Docket #213) should be granted, and overall judgment should be entered in favor of Defendant Secretary.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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